Temporary Injunction Order Must Make Specific Factual Finding for Each Element of Injunction

In Jouvence Center for Advanced Health, LLC v. Jouvence Rejuvenation Centers, LLC (4D08-4753), the Fourth DCA reversed the entry of a temporary injunction. The injunction order enjoined the appellant "from continuing use of Appellee[s']...patient files and proprietary information and establishing an injunction bond of $1000."

“A trial court's ruling on a temporary injunction comes to the appellate court with a presumption of correctness, reversible only upon a showing of a clear abuse of discretion...A party seeking a temporary injunction must prove: (1) that it will suffer irreparable harm unless the status quo is maintained; (2) that it has no adequate remedy at law; (3) that it has a substantial likelihood of success on the merits; (4) that a temporary injunction will serve the public interest...The party must also establish that it has a clear legal right to the relief sought...Finally, a trial court must make clear, definite, and unequivocally sufficient factual findings supporting each of the required elements before entering an injunction."

"the trial court neglected to make specific findings of fact regarding the four elements which must be shown before a preliminary injunction may be entered, and we reverse and remand for the trial court to make the required findings. Whether additional evidence is needed in order to make the necessary findings, we leave to the trial court’s determination."

Enforcement of Declaration of Condominium and Estoppel

In Curci Village Condominium Association, Inc. v. Santa Maria (4D08-2260), the Fourth District reversed the grant of summary judgment in favor of the condominium unit owner.

"This case arises out of landscaping modifications Santa Maria made to the backyard of her condominium unit...Before control of the Association was transferred to the homeowners, Santa Maria inquired whether she could put “decorative improvements” in her backyard. Richard Shan, who was a manager of the developer as well as the president and director of the Association at the time, told her that he “didn’t see a problem with it” as long as it did not impede the water runoff, was not permanent in nature, and did not require a permit. He told her that stones and mulch would be fine. When he gave her his “opinion” that it would be fine to make these modifications, he did so as president and director of the Association."

After reviewing the motions, pleadings, deposition testimony, reports, and other record evidence, the court entered an order granting Santa Maria’s motion for summary judgment and denying the Association’s motion. The court found that Santa Maria was entitled to maintain the decorative mulch and rocks along the limited common elements of her property. The court awarded Santa Maria prevailing party attorney’s fees and costs pursuant to section 718.303, Florida Statutes, and section 30.03 of the declaration. Curci appeals this judgment.

The standard of review applicable to summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)...The facts in this case show that the trial court erred in granting summary judgment to Santa Maria.

The declaration of condominium, which is the condominium’s “constitution,” creates the condominium a n d “strictly governs the relationships among the condominium unit owners and the condominium association.” Woodside Vill. Condo. Ass’n v. Jahren, 806 So. 2d 452, 455-56 (Fla. 2002). A declaration of condominium must be strictly construed. Palm Beach Hotel Condo. Ass’n v. Rogers, 605 So. 2d 143, 145 (Fla. 4th DCA 1992). Two sections of the declaration required Santa Maria to obtain written permission of the board prior to making improvements or alterations to her property or the common elements. Santa Maria was required to comply with the provisions of the declaration pursuant to its own terms and section 718.303, Florida Statutes.

[The unit owner did not dispute she did not receive permission. She asserted estoppel.]

The essential elements of estoppel are “(1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.”

In this case, as in Rolle, estoppel is inapplicable because the board of directors did not give Santa Maria permission to make the modifications, and Santa Maria could not reasonably rely on Span’s verbal representation to constitute the specific requirement of a written approval from the board.

Attorney Fees Awarded After Plaintiff Stopped Pursuing Action

In Frazier v. Dreyfus (4D08-1619), the Fourth District affirmed the award of attorneys fees to the prevailing party. The trial court abated the action, pending arbitration. The plaintiff never instituted an arbitration action and the trial court ultimately dismissed. After the dismissal, the defendant moved for attorneys fees and the court granted the motion.

The court held:

We affirm the trial court’s award of attorney’s fees based on Alhambra Homeowners Ass’n v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006)...Applying Alhambra, we agree that regardless of whether or not the buyers ever instituted arbitration proceedings in Costa Rica or otherwise decided not to pursue their claims, the seller prevailed in the action when the case was dismissed. Although the buyers assert that such an award is “unjust” based upon the allegations of the third amended complaint, those allegations have never been subjected to any requirements of proof.

Award of Attorneys Fees Requires Evidentiary Hearing

In Fareri v. Farmer (4D08-420), the Fourth District reversed an award of attorneys fees because the trial court did not conduct an evidentiary hearing.

Request for Mandamus Relating to Administrative Procedure Act Denied, Conflict Certified

In First Quality Home Care, Inc. v. Alliance for Aging, Inc. (3D08-2949), the Third District denied petitioners request for mandamus and certified conflict with Mae Volen Senior Center, Inc. v. Area Agency on Aging Palm Beach/Treasure Coast, Inc., 978 So. 2d 191 (Fla. 4th DCA 2008), review denied, 1 So. 3d 172 (Fla. 2009). Judge Scwartz dissented and indicated he agrees with Mae Volen.

The Court stated:

Alliance issued a request for proposal for three lead agency contracts in Miami-Dade County; the request for proposal provided for an internal appellate process. In response to Alliance’s request for proposal, First Quality submitted its proposal. After Alliance issued a notice of intent to award the lead agency designations to other providers, First Quality sent Alliance a letter seeking review of that decision. First Quality’s letter purported to serve as its notice of intent to challenge Alliance’s selection decision under sections 120.569 and 120.57, Florida Statutes (2008). Alliance set a hearing date before its Board’s Executive Committee. First Quality appeared at the hearing, and asserted its objections to the selection. Alliance’s Board rejected First Quality’s appeal.

First Quality filed this petition for mandamus, contending, inter alia, that it is entitled to the APA’s bid protest procedures rather than the internal appellate procedures provided for in Alliance’s request for proposal.

***

First Quality contends that it is entitled to a formal administrative hearing as provided for in sections 120.569 and 120.57, Florida Statutes (2008). This hearing, however, is afforded to First Quality only if Alliance is an "agency" as defined in section 120.52(1), Florida Statutes (2007), and section 287.012(1), Florida Statutes (2008)...We conclude that Alliance is not an "agency" as defined by either the APA or Florida’s procurement statute.

The APA’s definition of "agency" is set forth in section 120.52(1), which is divided into several subsections. Alliance does not fall within the definition of "agency" as provided in subsections (a), (b) or (c).

Error to Submit Joint Enterprise Defense to Jury

In Erickson v. Irving (3D07-1963, 3D07-1790, & 3D07-604), the Third District reversed the district court's judgment and remanded for a new trial. The court concluded "that the trial court erred in allowing the defense of joint enterprise to be submitted to the jury."

In order to establish the existence of a joint enterprise concerning the operation of a motor vehicle, the defendant must prove the following elements: 1) an agreement, express or implied, to enter into an undertaking, 2) a community of interest in the objects and purposes to be accomplished in the undertaking, and 3) equal authority to control the undertaking. Kane v. Portwood, 573 So. 2d 980, 985 (Fla. 2d DCA 1991).

***

The evidence in this case fails to establish that a joint enterprise existed between Long and Sindoni. As stated above, a mere "joy ride," or decision that persons will travel together to a social engagement or have plans in common is generally insufficient to establish a joint enterprise. Additionally, the fact that Sindoni purchased Long’s drinks at the Coral Gables bar is also not evidence of a community of interest in the object and purpose of the evening. Moreover, the fact that one person pays the attendant expenses for a drive, the purpose of which is social, does not necessarily amount to a joint enterprise and certainly in this case is evidence of no more than a gift. As such, we conclude that the first two required elements for a joint enterprise defense – agreement and a community of interest – were not established.

Fourth District on Indemnity

In Wendt v. La Costa Beach Resort Condominium Association, Inc. (4D08-2482), the Fourth District affirmed the circuit court's order granting a motion to dismiss and certified conflict with the First District's opinion in Turkey Creek Master Owners Ass’n v. Hope, 766 So. 2d 1245
(Fla. 1st DCA 2000).

The court stated:

"The directors cannot state an action for indemnification under the circumstances of this case. “Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other and is allowable only where the whole fault is in the one against whom indemnity is sought.” Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490, 492-93 (Fla. 1979). “It shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the costs because it was the latter’s wrongdoing for which the former is held liable.” Id. at 493. “Stated differently, an indemnity right exists when one is left open to liability due to the wrongful acts of another.” Time Ins. Co. v. Neumann, 634 So. 2d 726, 729 (Fla. 4th DCA 1994). The classic example of an indemnity action is when a party held vicariously liable to a third person seeks recovery from another party whose action caused the damage. Safecare Med. Ctr. v. Howard, 670 So. 2d 1020, 1022 (Fla. 4th DCA 1996).

As to the appellant's argument that they should have been given leave to amend, the Court stated:

The directors contend that they should have been afforded an opportunity to amend their complaint to allege additional facts to support their cause of action. Because any attempt to amend the complaint to state the requisite allegations for an indemnification action would be futile, the trial court properly entered the dismissal with prejudice. See Fields v. Klein, 946 So. 2d 119, 121 (Fla. 4th DCA 2007) (“Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.”).

Certiorari Requires Irreparable Harm

In Zurich American Insurance Co. v. Trafalgar at Greenacres, Ltd. (4D08-4794 and 4D08-5053), the Fourth District denied certiorari because the petitioner "fails to establish that it suffers irreparable harm which is necessary to invoke this court’s certiorari jurisdiction, we dismiss."

Default Reversed Because Counsel Failed to Inform Other Party and Counsel Knew They Intended to Defend Action

In Makes & Models Magazine Inc. v. Web Offset Printing Co. (2D08-1061), the Second District reversed the trial court's order refusing to vacate a clerks default.

Florida Rule of Civil Procedure 1.500, which allows entry of a clerk's default when a party fails to file or serve any paper in an action, should be liberally construed in favor of deciding cases on the merits...Furthermore, a default is not designed to give a strategic advantage to the plaintiff so that it may obtain a judgment without dealing with the defendant's challenges and defenses.

In Lloyd this court held that "[a] trial court should vacate an ex parte default when 'the plaintiff seeking default had actual knowledge that the defendant was represented by counsel and intended to defend the lawsuit, but failed to contact the defendant's counsel prior to seeking default...If the plaintiff is aware that the defendant is represented by counsel and intends to defend the litigation on the merits, it is required to serve the defendant with notice of the application for default and to present the matter to the court for entry of the default...A default that does not comply with this requirement "must be vacated without regard to whether the defendant can establish a meritorious defense or whether the defendant can demonstrate inadvertence or excusable neglect."

[In its conclusion, the Court stated:]

We cannot conclude without making one final observation. Web Offset's argument pressed for a strict and literal interpretation of the default rules without any regard for civility or for the professionalism expected when one party is aware that the opposing party is represented by counsel and intends to defend against the claims at issue. Although these are not difficult concepts to grasp, post-Lloyd, a party's responsibilities when faced with similar circumstances should be clear.