NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOHN AMELIO and ANNEMARIE )
AMELIO, )
)
Appellants, )
)
v. ) Case No. 2D14-5596
)
MARILYN PINES UNIT II CONDOMINIUM )
ASSOCIATION, INC., )
)
Appellee. )
___________________________________ )
Opinion filed July 15, 2015.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Pinellas County;
Walter L. Schafer, Jr., Judge.
Lee L. Haas of Haas & Castillo, P.A.,
Clearwater, for Appellants.
H. Vance Smith of Kadyk & Delesie,
P.A., Tampa, for Appellee.
SILBERMAN, Judge.
John and Annemarie Amelio (the Amelios) own a ground floor
condominium unit that has been plagued by excess moisture coming through the slab
on which their unit sits. The Amelios filed suit for injunctive relief and damages,
claiming that Marilyn Pines Unit II Condominium Association, Inc. (the Association), has
failed to perform its obligations to maintain and repair the slab in order to stop the
moisture intrusion. They appeal the nonfinal order that denies their request for a
mandatory injunction against the Association. We conclude that the Amelios have
satisfied the requirements to obtain a mandatory injunction and that an injunction is
appropriate under the circumstances of this case. Accordingly, we reverse.
In 2010, the Amelios observed excessive moisture in their condominium
unit, which was causing damage to the unit and its contents. They reported the problem
to the Association, which then brought in a leak detection service. In December 2010,
that company ran tests and determined that there was excessive moisture in the slab
which was not caused by a plumbing, air conditioning, or other leak. In March 2011, the
Association hired an engineering firm to inspect the floor slab and recommend potential
repair options. The engineering firm recommended the installation of a moisture barrier
on the slab and an exterior drainage system.
Immediately following the engineering firm's recommendation, the
Association's attorney sent a letter to the Association's board of directors notifying the
board that it is the Association's responsibility to fix any issues with the floor slab. In
December 2011, the Association hired a different engineering firm to draw up plans for
an exterior drainage system. The drainage system was not completed until more than a
year later in early 2013. But even after the drainage system was installed high moisture
levels remained in the slab and moisture intrusion continued in the Amelios' unit.
The Association rehired the original engineering firm to perform another
inspection. The engineering firm issued a report in April 2013, again recommending
that a moisture barrier be placed on the concrete slab. The Association hired a
company to install the moisture barrier, but it was not installed in accordance with the
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engineering firm's specifications and, although disputed, the concrete slab may have
been too soft and powdery for the barrier to be effective. The Association failed to take
further steps to resolve the problem. The Amelios' unit continues to be damaged as a
result of ongoing moisture intrusion and is uninhabitable.
The Amelios sought a mandatory injunction to compel the Association to
resolve the moisture problem in the slab. They also sought compensation for damage
to their condominium unit, damage to their personal property, and for loss of use of the
unit. The circuit court bifurcated the injunction and damages claims and conducted a
nonjury trial as to injunctive relief. The court found that the Amelios failed to
demonstrate that they had no adequate remedy at law and denied injunctive relief.
Injunctive relief is specifically authorized by statute in cases brought by
unit owners against condominium associations for their failure to perform obligations as
required by the condominium documents. § 718.303(1), Fla. Stat. (2011); see Abbey
Park Homeowners Ass'n v. Bowen, 508 So. 2d 554, 555 (Fla. 4th DCA 1987). In order
to establish entitlement to a mandatory injunction there must be a clear legal right which
has been violated, irreparable harm must be threatened, and there must be a lack of an
adequate remedy at law. Shaw v. Tampa Elec. Co., 949 So. 2d 1066, 1069 (Fla. 2d
DCA 2007). The Amelios contend that the evidence at trial established these elements.
We agree.
First, to establish entitlement to a mandatory injunction, a movant must
establish that "a clear legal right has been violated." Legakis v. Loumpos, 40 So. 3d
901, 903 (Fla. 2d DCA 2010). In this case, the declaration of condominium governs the
parties' rights. Section 5.2(a) states:
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(a) BY ASSOCIATION. The Association shall maintain,
repair and replace as a common expense of the apartment
buildings containing an apartment:
(1) All portions of the apartment contributing to the support of
the apartment building, which portions shall include but not
be limited to the outside walls of the apartment buildings and
all fixtures on the exterior thereof, boundary walls of the
apartment, floors and ceiling slabs, loadbearing columns,
and loadbearing walls, but shall not include screening,
windows, exterior doors, glass, and interior surfaces of walls,
ceilings and floors.
....
(3) All incidental damage caused to an apartment by
such work shall be promptly repaired by the Association.
(Emphasis added.) Section 5.2(b)(1) states:
(b) BY THE APARTMENT OWNER. The responsibility of the
apartment owner shall include:
(1) To maintain, repair, and replace at his sole and personal
expense . . . interior surfaces of all walls, including boundary
and exterior walls, floors and ceilings . . . except the portions
specifically to be maintained, repaired and replaced by the
Association.
(Emphasis added.) Finally, section 5.2(c) states:
(c) ALTERATION AND IMPROVEMENT. Subject to the
other provisions of 5.2, and which in all cases shall
supersede and have the priority over the provisions of this
section when in conflict therewith, an apartment owner may
make such alteration or improvement to the apartment at his
sole and personal cost as he may be advised, provided all
work shall be done without disturbing the rights of other
apartment owners and further provided that an apartment
owner shall make no changes or alterations to any interior
boundary wall, exterior wall, balcony or patio, screening,
exterior door, windows, awnings, structural or loadbearing
member, electrical service or plumbing service, without first
obtaining approval in writing of owners of all other
apartments in such apartment building and the approval of
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the board of directors of the Association, with compliance to
all existing building codes.
(Emphasis added.) While the Amelios have a duty to maintain and repair the interior
surfaces of their unit, they are not entitled to unilaterally make any changes or
alterations to any structural or loadbearing member of the unit, including the slab.
Rather, it is the Association's duty to maintain and repair the floor slab. Because the
evidence has shown that moisture was coming from outside the Amelios' unit through
the floor slab and that the Association has failed to resolve the problem, the Amelios
have established that they possess a clear legal right to have the Association repair the
slab.
The second element a movant must establish for a mandatory injunction is
that irreparable harm is threatened. Legakis, 40 So. 3d at 903; Shaw, 949 So. 2d at
1069. Under section 718.303(1), the requirement of irreparable harm is satisfied when
a violation of chapter 718 is shown. Hobbs v. Weinkauf, 940 So. 2d 1151, 1153 (Fla. 2d
DCA 2006); Hollywood Towers Condo. Ass'n, Inc. v. Hampton, 40 So. 3d 784, 788 (Fla.
4th DCA 2010). Similarly, irreparable harm is shown by the ongoing violation of the
obligations contained in condominium documents, whose violation is prohibited by
statute. See Briarwinds Condo. Ass'n, Inc. v. Rigsby, 51 So. 3d 532, 533 (Fla. 3d DCA
2010).
Moreover, the evidence established irreparable harm based on the
moisture in and coming through the slab, resulting in excessive moisture in the unit,
damaging the unit and making it uninhabitable. The problem goes deeper than just the
slab's surface, and the Association's efforts to cover the surface and install exterior
drains have been unsuccessful. The Amelios have no ability to remedy this problem as
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they have no unilateral right under the declaration of condominium to maintain, repair,
or replace the floor slab. Rather, the right and obligation to address slab problems is
that of the Association. These facts establish the required element of irreparable harm.
The third element a movant must show is that the movant does not
possess an adequate remedy at law. Legakis, 40 So. 3d at 903; Shaw, 949 So. 2d at
1069. If monetary damages would fully compensate a loss, then this element is not
established. Hiles v. Auto Bahn Fed'n, Inc., 498 So. 2d 997, 998 (Fla. 4th DCA 1986).
Here, the circuit court found that there was an adequate remedy at law but failed to
state any reasoning behind its decision. Presumably, the court concluded that the
Amelios' claim for damages would provide them an adequate remedy. However, the
evidence does not support this finding.
The Amelios have established that the problem is with the floor slab itself,
and there was no evidence that the Amelios caused the water intrusion or failed to
prevent it. Under section 5.2 of the declaration, the duty to repair the slab rests
exclusively with the Association. The Association has failed to present any evidence
that it would be impossible for the Association to perform the necessary repairs to the
slab. And because the Association has the exclusive duty to make repairs to the slab,
the Amelios cannot make the repairs and obtain reimbursement from the Association for
those repairs.
Significantly, until the repairs are made the unit will continue to be
damaged and uninhabitable. And a monetary award will not fix the problem as the
Amelios do not have the right to maintain, repair, or replace the slab. Based on the
evidence presented at trial, there is nothing to support the conclusion that a monetary
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award would be an adequate remedy for the Association's ongoing failure to properly
and timely address the problem. Thus, because of the Association's failure to perform,
an injunction is warranted to compel the Association to fulfill its obligation to repair. See
§ 718.303(1); Legakis, 40 So. 3d at 903 (noting that a mandatory injunction is
appropriate to require a landlord to replace or repair the air conditioning in a tenant's
restaurant as required by the parties' agreement).
We note the Association's contention that a mandatory injunction would
perpetually compel the Association to maintain the common elements for an unspecified
duration. See Abbey Park, 508 So. 2d at 555; Florida Jai Alai, Inc. v. S. Catering
Servs., Inc., 388 So. 2d 1076, 1078 (Fla. 5th DCA 1980). But the Association seems to
ignore that it is already obligated under the condominium documents to maintain the
common elements, including the slab. Based on the evidence presented, it appears
that once the problem at hand is resolved by appropriate repairs, an injunction should
no longer be required.
The Amelios have met their burden on each of the necessary
requirements for a mandatory injunction. The Amelios have a clear legal right which the
Association has violated, they have suffered irreparable harm as a result of the
continuing violation, and they have no adequate remedy at law in the face of the
Association's ongoing failure to perform its obligation. For these reasons the circuit
court erred in denying the Amelios' motion for a mandatory injunction. We reverse the
order denying the mandatory injunction and remand this case for further proceedings
consistent with this opinion.
Reversed and remanded for further proceedings.
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MORRIS, J., Concurs.
LUCAS, J., Concurs with opinion.
LUCAS, Judge, Concurring specially.
I concur with the decision to reverse the circuit court's order but write
separately because I believe mandatory injunctive relief—and all that it will entail—is
warranted here only because section 718.303(1), Florida Statutes (2011), authorizes
this extraordinary civil remedy in cases such as this one.
From the record it appears that the Amelios have suffered some degree of
moisture intrusion in their condominium unit for the past several years as a result of
some problem, yet to be definitively diagnosed, with their building's floor slab. Whatever
the exact source of the problem may be, the Amelios have, thus far, been unsatisfied
with the attempts to repair it, and so they sought relief in court. Among their claims for
relief, the Amelios asked for a mandatory injunction to compel their condominium
association to undertake a proper repair of the slab, whatever that may be. The
conflicting causation evidence presented at this bifurcated nonjury trial, were it in a
context other than a condominium, would seem to present a difficult case for mandatory
injunctive relief. Cf. Dade Enters. v. Wometco Theatres, 160 So. 209, 214 (Fla. 1935)
("It is a rule of general application in injunction cases that an injunction should not be
granted where there is substantial dispute as to the legal rights involved and the right of
complainant is doubtful, or is not clear, or is questioned on every ground on which he
puts it, not only by the answer of the defendant, but by the proofs in the cause.");
Foreclosure FreeSearch, Inc. v. Sullivan, 12 So. 3d 771, 774-75 (Fla. 4th DCA 2009)
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("Although a trial court has broad discretion in granting injunctive relief, it is an
extraordinary remedy that 'requires a clear legal right, free from reasonable doubt.' "
(quoting Net First Nat'l Bank v. First Telebanc Corp., 834 So. 2d 944, 950 (Fla. 4th DCA
2003))).
However, as the majority correctly notes, the Association is required under
a recorded condominium declaration to repair the floor slab as part of its common
maintenance obligations. Furthermore, section 718.303(1) expressly provides
condominium owners such as the Amelios with an avenue to obtain injunctive relief
against a condominium association for violations of recorded condominium declarations.
With that recorded obligation and statutory authority, and in light of the evidence that the
slab of this building is in some kind of disrepair which the Amelios are incapable of
remedying, the circuit court's denial of injunctive relief was improper. See Hobbs v.
Weinkauf, 940 So. 2d 1151, 1153 (Fla. 2d DCA 2006) ("A violation of the requirements
of chapter 718 is itself a harm for which section 718.303 authorizes injunctive relief.
The statute requires no additional showing of harm.").
The Association raises a valid point about the rare and extraordinary
nature of mandatory injunctive relief that bears repeating. See Johnson v. Killian, 27
So. 2d 345, 347 (Fla. 1946) (stating that the "drastic" remedy of injunctive relief should
be granted "cautiously and sparingly," particularly when it is mandatory, because
mandatory injunctions are looked upon with disfavor); Grant v. GHG014, LLC, 65 So. 3d
1066, 1067 (Fla. 4th DCA 2010) ("Mandatory injunctions, which compel an affirmative
action by the party enjoined, are looked upon with disfavor, and the courts are even
more reluctant to issue them than prohibitory ones."). And, it must be conceded, the
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entry of a mandatory injunction that necessitates ongoing judicial monitoring presents
unique challenges as it distends the traditional role of a court as an arbiter of disputes;
such injunctions must be carefully crafted so that they have definitive limits and are not
perpetual. Collins v. Pic-Town Water Works, Inc., 166 So. 2d 760, 762 (Fla. 2d DCA
1964); Abbey Park Homeowners Ass'n v. Bowen, 508 So. 2d 554, 555 (Fla. 4th DCA
1987). Just as we would never wish to put a court "in the business of managing a
shopping center," Mayor's Jewelers, Inc. v. California Pub. Emps. Ret. Sys., 685 So. 2d
904, 905 (Fla. 4th DCA 1996) (quoting New Park Forest Assocs. II v. Rogers Enters.,
Inc., 552 N.E. 2d 1215, 1220 (Ill. App. Ct. 1990)), we should be loath to make a circuit
judge into a construction site supervisor. But these arguments must fail in the face of a
statute that authorizes this equitable remedy under these facts.
For that reason, I concur.
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