JOHN PATCHEN, Individually, and JOHN PATCHEN AS TRUSTEE OF THE JOHN PATCHEN REVOCABLE LIVING TRUST v. QUADOMAIN CONDOMINIUM ASSOCIATION

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

JOHN PATCHEN, individually, and
JOHN PATCHEN, as Trustee of the
John Patchen Revocable Living Trust,
Appellants,

v.

QUADOMAIN CONDOMINIUM ASSOCIATION,
Appellee.

Nos. 4D19-1359 and 4D19-1531

[October 21, 2020]

Consolidated appeal from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case No.
CACE17-20651.

Eric C. Edison of Gunster, Yoakley & Stewart, P.A., Fort Lauderdale,
for appellants.

Scott J. Edwards of Scott J. Edwards, P.A., Boca Raton, and
Christopher Sajdera of Sajdera Kim, PLLC, Boca Raton, for appellee.

ON APPELLEE’S MOTION FOR REHEARING

GERBER, J.

We grant in part appellee’s motion for rehearing in order to clarify our
description of the circuit court’s disposition of appellants’ motion to vacate
the circuit court’s initial order granting the appellee’s motion for temporary
injunction. We therefore substitute the following opinion for our opinion
which issued on July 29, 2020, and otherwise deny the remainder of
appellee’s motion for rehearing, without further discussion.

A condominium unit owner appeals from two mandatory injunction
orders which permitted his condominium association to access his balcony
to perform restoration work. We affirm the circuit court’s finding that the
association was entitled to the injunction. However, we remand for further
proceedings based on the unit owner’s argument that the circuit court
erred in not requiring the association to give a bond pursuant to Florida
Rule of Civil Procedure 1.610(b) (“No temporary injunction shall be entered
unless a bond is given by the movant in an amount the court deems
proper, conditioned for the payment of costs and damages sustained by
the adverse party if the adverse party is wrongfully enjoined.”). We agree
with the unit owner that the circuit court erred by not requiring a bond.

The association argues the unit owner did not raise this argument in
the trial court, thus waiving the argument. The association is incorrect.
After the circuit court entered its initial order granting the association’s
motion for temporary injunction, the unit owner filed a motion to vacate
the order because, among other reasons, the order did not require a bond
under rule 1.610(b). The circuit court initially entered an order staying
the injunction “until further order of the court.” The circuit court later
entered a further order granting the association’s motion to lift the stay
and directing the unit owner to permit the association to access his
balcony to perform the restoration work, but again without requiring the
association to give a bond. We treat the circuit court’s order lifting the
stay of the injunction as a final order denying the unit owner’s motion to
vacate the order granting the association’s motion for temporary
injunction. Thus, the unit owner preserved his argument of error for not
requiring a bond.

In the alternative, the association argues we should dismiss the appeal
as moot because, during this appeal’s pendency, the association
completed the work on the unit owner’s balcony. The unit owner responds
the appeal is not moot because he may be subject to a collateral legal
consequence, that is, the association’s allegation it is the prevailing party
under its pending motion for attorney’s fees and costs pursuant to section
718.303(1), Florida Statutes (2018), and the condominium declaration.

We agree with the unit owner that because of the possible collateral
legal consequence of prevailing party attorney’s fees and costs, the appeal
is not moot. See Smulders for 129–31 Harrison Street, LLC v. Thirty–Three
Sixty Condominium Association, Inc., 245 So. 3d 802, 805 (Fla. 4th DCA
2018) (unit owners’ action was not rendered moot by completion of
renovation and payment by all unit owners of their share of special
assessment where collateral consequences, including prevailing party
attorney’s fees under section 718.303(1), required determination).

Based on the foregoing, we affirm the circuit court’s finding that the
association was entitled to the injunction. However, we reverse as to the
circuit court’s error in not requiring a bond under rule 1.610(b). Because
the action for which the bond would have been required has been
completed, no need exists for the circuit court to hold an evidentiary

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hearing on what bond amount should have been required. Rather, the
circuit court shall consider our reversal on the bond issue, along with all
other issues in the case as a whole, in determining entitlement to
attorney’s fees and costs as the prevailing party pursuant to any pending
motions under section 718.303(1) and the condominium declaration.

Affirmed in part, reversed in part, and remanded with instructions.

WARNER and GROSS, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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