Dues on property and claim of lien

Florida Case Law

RESERVE AT WEDGEFIELD HOME. v. DIXON, 5D06-1578 (Fla.App. 5 Dist. 1-12-2007) THE RESERVE AT WEDGEFIELD HOMEOWNERS’, ETC., Appellant, v. REBECCA L. DIXON, Appellee. No. 5D06-1578. District Court of Appeal of Florida, Fifth District. Opinion filed January 12, 2007.

Non-Final Appeal from the Circuit Court for Orange County, Lawrence Kirkwood, Judge.

Robyn Severs Braun and Patrick C. Howell of Taylor & Carls, Maitland, for Appellant.

Douglas T. Noah of Dean, Ringers, Morgan & Lawton, P.A.,
Orlando, for Appellee.

THOMPSON and MONACO, JJ., concur.

PALMER, J.

In this non-final appeal, the Reserve at Wedgefield
Homeowners’ Association (Wedgefield) appeals the trial
court’s order granting Rebecca Dixon’s motion for emergency
injunctive relief.[fn1] Determining that the injunction
order fails to comply with the technical requirements of
the law, and that Dixon failed to make the showing
necessary for temporary injunctive relief, we reverse.

Dixon filed a complaint against Wedgefield seeking relief
from Wedgefield’s imposition of homeowners’ association
dues on her property. The complaint explains that Dixon
purchased two lots in the Reserve at Wedgfield, but only
one house is located on the lots. Dixon began receiving
notifications from Wedgefield that she owed association
dues on both lots but, the complaint alleges, Dixon then
received notification from the vice president and secretary
of Wedgefield indicating that she only owed association
dues on one lot (because only one home is located on both
lots). The complaint states that Wedgefield continues to
assess dues on each of Dixon’s lots and that Wedgefield has
filed a claim of lien against Dixon’s property because she
has failed to pay said dues.

Along with her complaint, Dixon filed a verified motion for
emergency injunctive relief. In her motion, Dixon alleged
the same facts as were alleged in her complaint with the
additional allegation that Wedgefield had forwarded
correspondence to her indicating that Wedgefield would
institute foreclosure proceedings against Dixon’s property
if she failed to pay the dues which were owed.

The trial court conducted a hearing on Dixon’s injunction
motion. Dixon did not present any witness testimony.
Instead, she relied solely upon her pleadings and the
argument of counsel.

The trial court later entered a written order granting
Dixon’s motion for temporary injunction and enjoining
Wedgefield from initiating any proceeding to effect the
foreclosure or execution of its lien on Dixon’s property.
As for findings, the trial court’s order simply states that
(1) “because each parcel of real estate is unique unto
itself, the foreclosure of plaintiff’s property would
amount to irreparable harm”, and (2) “under the
circumstances of this case, the plaintiff has no adequate
remedy at law and has a substantial likelihood of success
on the merits of this action.” The court also waived the
bond requirement in this case. This appeal timely followed.

Wedgefield argues that the trial court’s injunction order
must be reversed because it fails to comply with the
technical requirements of the law. We agree.

“A preliminary injunction is an extraordinary remedy which
should be granted only if the party seeking the injunction
establishes the following criteria: (1) the likelihood of
irreparable harm; (2) the unavailability of an adequate
remedy at law; (3) substantial likelihood of success on the
merits; and (4) consideration of the public interest.”
Dragomirecky v. Town of Ponce Inlet, 882 So.2d 495, 496
(Fla. 5th DCA 2004) (citing to Yardley v. Albu, 826 So. 2d
467, 470 (Fla. 5th DCA 2002)).

Where, as here, a party that is subject to a temporary
injunction chooses to file a direct appeal, rather than
filing a motion to dissolve the injunction, the scope of
appellate court review is limited to “the legal sufficiency
of the trial court’s order, the complaint, and any
supporting documents.” Yardley v. Albu, 826 So.2d 467, 469
(Fla. 5th DCA 2002). Applying this standard of review to
the instant case, we reverse because the trial court’s
order is legally insufficient.

The trial court’s injunction order fails to order Dixon to
post a bond and fails to set forth a factual basis to
support each of the elements of a temporary injunction
(i.e., the likelihood of irreparable harm, the
unavailability of an adequate remedy at law, substantial
likelihood of success on the merits, and consideration of
the public interest). As such, the trial court’s injunction
order must be reversed. See Broward County v. Meiklejohn,
936 So.2d 742 (Fla. 4th DCA 2006) (holding that trial
court’s order granting county employee’s motion for
preliminary injunction for reinstatement was improper
because it contained technical errors in that the order
failed to state a factual basis to support each of the
elements of a preliminary injunction and the order failed
to include a bond); Masters Freight, Inc. v. Servco, Inc.,
915 So.2d 666 (Fla. 2d DCA 2005) (holding that a temporary
injunction must specify the reasons for its entry and the
findings supporting the elements necessary to establish
entitlement to a temporary injunction must be clear,
definite, and unequivocal); Alliant Capital, Ltd. v.
Singleton, 835 So. 2d 365 (Fla. 5th DCA 2003) (reversing
trial court’s injunction order because the court failed to
set forth facts to support each element that a moving party
must establish to be entitled to the issuance of a
temporary injunction and erred in not setting and requiring
a bond).

In closing we note that, even if the technical deficiencies
of the instant injunction order were not dispositive, the
entry of temporary injunctive relief in this matter would
have been improper because the alleged facts are
insufficient to support a conclusion that Dixon would
suffer irreparable harm if injunctive relief were not
granted and that she does not have an adequate remedy at
law. Dixon alleges as irreparable harm the threat that
Wedgefield will institute foreclosure proceedings against
her property because of the possibility that she may lose
her property in the foreclosure. However, no such loss would
occur merely by the institution of foreclosure proceedings.
Instead, such loss could only occur upon successful
prosecution of the foreclosure proceedings, during which
Dixon could raise all of the issues raised in her motion
for injunctive relief as defenses thereto. See Hutchinson
v. Kimzay of Florida, Inc., 637 So.2d 942 (Fla. 5th DCA
1994) (holding the moving party would not suffer irreparable
harm by having issues litigated in a related eviction
action, since any argument raised in support of the
temporary injunction could be raised in defense of the
eviction action).

REVERSED.

[fn1] Appellate jurisdiction is proper pursuant to rule
9.130(a)(3)(B) of the Florida Rules of Appellate Procedure
which authorizes appeals from non-final orders which
“grant, continue, modify, deny, or dissolve injunctions, or
refuse to modify or dissolve injunction”.