County Civil Court: PROPERTY - Deed Restriction - Injunctive relief granted to Homeowners Association based on violation of the Covenants, Conditions, Restrictions, and Regulations restricting residents to only one dog, cat, or bird.  No requirement that irreparable harm be demonstrated to issue injunction to remedy violation of a restrictive covenant.  Appellant failed to prove estoppel due to "selective enforcement."  Judgment affirmed.  Mullins v. Gull Aire Village Association, Inc., No. 10-000045AP-88A (Fla. 6th Cir. App. Ct. August 31, 2011).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

 

RICHARD MULLINS,

      Appellant,       

                                                                        Case No. 10-000045AP-88A

                                                                        UCN522010AP000045XXXXCV

v.

 

 

GULL AIRE VILLAGE ASSOCIATION, INC.,

      Appellee.

______________________________________/

 

Opinion Filed  ______________

 

Appeal from Final Judgment

Pinellas County Court

Judge Myra Scott McNary

 

John A. Shahan, Esq.

Attorney for Appellant

 

Allison J. Brandt, Esq.

Stephen C. Nikoloff, Esq.

Attorneys for Appellee

 

PER CURIAM.

          Appellant/Defendant-below Richard Mullins appeals the Final Judgment granting injunctive relief to Appellee/Plaintiff-below Gull Aire Village Association, Inc.  We affirm.

          The Association filed a complaint seeking injunctive relief to enforce provisions of deed restrictions affecting property within the Gull Aire Village subdivision.  It is alleged that pursuant to the terms of the "Amended and Restated Declaration of Covenants, Conditions, and Restrictions for Gull Aire Village" (Declaration) and the "Gull Aire Village Rules and Regulations" (Regulations), only one dog, cat, or bird may be kept on a single lot or residence within the community.  Allegedly, Mr. Mullins has violated the Declaration and Regulations by maintaining two dogs at his residence. 

          A trial was conducted on October 29, 2009.  Final Judgment granting the injunction and directing Mr. Mullins to comply with the Association's pet restrictions was entered on September 14, 2010.

Standard of Review

          An abuse of discretion standard is used by the appellate court in reviewing an order granting or denying a permanent injunction based on factual matters.  See Hollywood Towers Condo. Ass'n, Inc. v. Hampton, 40 So. 3d 784, 786 (Fla. 4th DCA 2010).  The trial court's decisions on purely legal issues are reviewed de novo.  Id.

Analysis

          Generally, to obtain an injunction, a petitioner must “establish a clear legal right, an inadequate remedy at law and that irreparable harm will arise absent injunctive relief.”  Hollywood Towers Condo. Ass'n, Inc. v. Hampton, 40 So. 3d 784, 786 (Fla. 4th DCA 2010).  Mr. Mullins argues that the Final Judgment must be reversed because there was no evidence presented and no findings by the trial court of an inadequate remedy at law or irreparable harm. 

          This argument is without merit because it is well established that injunctive relief is available to remedy the violation of a restrictive covenant "without a showing that the violation has caused an irreparable injury--that is, an injury for which there is no adequate remedy at law." Autozone Stores, Inc. v. Ne. Plaza Venture, LLC, 934 So. 2d 670, 673-74 (Fla. 2d DCA 2006); Daniel v. May, 143 So. 2d 536, 538 (Fla. 2d DCA 1962).

          Mr. Mullins next argues that the Final Judgment should be reversed because the evidence presented at trial supports his affirmative defense of selective enforcement of the Declaration and Regulations' one pet per residence restriction.  He asserts that starting in 2007, Sandra Larson, the President of the Board of Directors for Gull Aire Village, selectively chose to enforce the Declaration and Regulations against residents with multiple pets.  Allegedly, the enforcement was directed to residents who were not friends of Ms. Larson or members of a social club in the mobile home community.  Mr. Mullins testified that there were at least seven residents who were openly violating the one-pet rule.  He claims the Association is estopped from enforcing the pet restriction due to this selective enforcement.

          In the Final Judgment, the trial court noted that Mr. Mullins testified that there are other residences at Gull Aire Village occupied by more than one pet.  The Final Judgment makes a finding that Mr. Mullins testified he had no personal knowledge as to whether the Association had filed actions against these residents to enforce the Declaration and Regulations.  Further, he did not know if the Developer of the mobile home community had waived the pet restriction and had approved the residents' right to have more than one pet.  The Final Judgment states that the President of the Board, Ms. Lawson testified on rebuttal that all residences with more than one pet had been "grandfathered in" pursuant to a resolution by the Board.

          Mr. Mullins also complains that the "Judge was unfair" in not admitting into evidence a list with the names, addresses, and the number of pets Mr. Mullins had observed within the mobile home community.  Mr. Mullins referred to this list during his testimony. 

          At the time the list was offered for admission into evidence, the trial court asked counsel for Mr. Mullins the purpose of admitting the list.  Counsel stated, "The only purpose would be for the Court to have a written record of the testimony."  The trial court declined to admit the list into evidence stating, "There is no need for that."  Admission of evidence at trial is in the discretion of the trial court.  Fortune v. Fortune, 61 So. 3d 441, 445 (Fla. 2d DCA 2011).  There was no abuse of discretion by the trial court in not admitting the list into evidence.

Conclusion

          Upon a review of the documentary evidence admitted into evidence and the transcript of the trial, this Court concludes that the Association met its burden to demonstrate that Mr. Mullins violated the provision of the Declaration and Regulations concerning the number of pets permitted.  Further, a review of the evidence supports the trial court's conclusion that Mr. Mullins failed to prove there had been selective enforcement of the provision concerning the number of pets permitted per residence.  Therefore, the trial court did not abuse its discretion in granting the injunction and directing Mr. Mullins to comply with the terms of the Declaration and Regulations concerning pet restrictions.  The Final Judgment is affirmed.

 

          Affirmed.

          DONE AND ORDERED in Chambers in Clearwater, Pinellas County, Florida, this 31st day of August, 2011.

 

Original order entered on August 31, 2011 by Circuit Judges Linda R. Allan, W. Douglas Baird, and John A. Schaefer.

 

 

Copies furnished to:

 

John A. Shahan, Esq.

536 E. Tarpon Ave., Ste 3

Tarpon Springs, FL 34689

 

Allison J. Brandt, Esq.

P.O. Box 172717

Tampa, FL 33672

 

Stephen C. Nikoloff, Esq.

1964 Bayshore Blvd.

Dunedin, Florida 34698

 

Hon. Myra Scott McNary