Opinion
Case Nos. 3D00-1052, 3D00-1322.
Opinion filed September 27, 2000.
Appeals from the Circuit Court for Monroe County, Richard Payne, Judge; Lower Tribunal No. 97-588.
Morgan Hendrick, and James T. Hendrick, and Warren D. Tochterman (Key West, Florida), for appellants.
Francis H. Muldoon, Jr., and Charles M. Milligan (Key West, Florida), for appellees.
Before GERSTEN, and RAMIREZ, JJ., and NESBITT, Senior Judge.
These consolidated appeals challenge (1) a final summary judgment dismissing the complaint filed by Cudjoe Gardens Property Owners Association and (2) the denial of a request for attorneys' fees made by Roy H. Payne and Elizabeth Burger-Payne following the dismissal. We reverse the summary judgment as it was based on an improper finding of lack of standing by the Association. In so doing, we do not reach the attorneys' fees issue.
By way of its complaint, the Association was seeking to enforce against the Paynes a deed restriction which included minimum setback requirements. The Paynes did not dispute that the construction of their home violated these setback requirements. In their motion for summary judgment, they attacked the Association's standing to sue for enforcement of the restriction, relying on Palm Point Property Owners' Association of Charlotte County, Inc. v. Pisarski, 626 So.2d 195, 197 (Fla. 1993), in which the Florida Supreme Court denied relief to the Association because it had "not shown that it [was] the assignee of the developer's right of enforcement or that the covenants were created for its benefit." The Paynes' reliance on Palm Point is misplaced because in the present case, unlike the Association in the Palm Point case, the Cudjoe Gardens Association owned a platted lot within the subdivision. The fact that it was not a buildable lot does not defeat the Association's standing as a property owner to sue for enforcement of the deed restrictions, and the trial court's contrary ruling requires reversal. In light of our reversal in appeal number 00-1052, the attorneys' fee issue raised in appeal number 00-1322 is moot and we decline to address it.
Reversed and remanded.