Summary
affirming denial of injunction
Summary of this case from VME Grp. Int'l v. The Grand Condo. Ass'nOpinion
No. 3D19-139
09-25-2019
VME GROUP INTERNATIONAL, LLC, a Florida Limited Liability Company, Omni Property Management, LLC, a Florida Limited Liability Company, Appellants, v. The GRAND CONDOMINIUM ASSOCIATION, INC., a Florida corporation, Appellee.
VME Group International, LLC, and Omni Property Management, LLC, (collectively, "VME"), seek to reverse the trial court's denial of their motion for temporary injunction against The Grand Condominium Association, Inc. Fla. R. App. P. 9.130(a)(3)(B). The abuse of discretion standard generally applies to the appeal of orders that grant or deny temporary injunctions. Telemundo Media, LLC v. Mintz, 194 So. 3d 434, 435 (Fla. 3d DCA 2016).
To obtain a temporary injunction, VME had to satisfy the following five-part test: (1) the substantial likelihood of success on the merits, (2) the likelihood of irreparable harm, (3) the unavailability of an adequate remedy at law, (4) the threatened injury outweighs the possible harm, and (5) the issuance of the temporary injunction will not disserve the public interest. See Mintz, 194 So. 3d at 436. If a party seeking relief fails to meet any of these requirements, the motion must be denied. Genchi v. Lower Fla. Keys Hosp. Dist., 45 So. 3d 915, 919 (Fla. 3d DCA 2010). The order on appeal sets forth the operative facts and the correct legal conclusions necessary to support an affirmance in this case. We need not summarize the order; we reproduce it in full below:
ORDER ON PLAINTIFFS' RENEWED VERIFIED AMENDED MOTION FOR TEMPORARY INJUNCTION
THIS CAUSE having come before the Court on Plaintiffs' Renewed Verified Amended Motion for Temporary Injunction, the Court, having considered the evidence presented, procedural history, argument of counsel and parties, all memoranda, and all relevant legal authority, hereby ORDERS and ADJUDGES as follows:
Background:
Petitioners, VME Group International, LLC, Omni Property Management, LLC, and Global Grand Management, Inc., have filed the instant motion seeking a temporary injunction against Respondent, the Grand Condominium Association, Inc. Petitioners seek to enjoin the Association from "enforcing any rules or policies that are not equally applicable to all Members and uniform in their application and effect ..." Injunction at 19. Specifically, Petitioners seek to enjoin the enforcement of the First Short-Term Rental Policy, the 72-hour registration rule, the Parking Garage Regulations, The Resolution Directing Implementation of Change in Security Protocol and Procedures, and the Hurricane Windows Assessment.
The Supreme Court described the Grand Condominium in the following manner: Organized in 1986, The Grand Condominium is a mixed-use condominium comprising 810 residential units, 259 commercial units, and 141 retail units. The Grand's articles of incorporation, declaration of condominium, and bylaws provide for a seven-member board of directors governing the association, with two members each elected by the residential unit owners, the commercial unit owners, and the retail unit owners, and the seventh member elected at-large. Cohn v. Grand Condominium Ass'n. Inc., 62 So. 3d 1120, 1121 (Fla. 2011).
An explosion in the short-tern rental market, arising out of the popularity and accessibility of Airbnb has presented the Grand's Condominium Association with numerous challenges relating to regulation and security. At the same time, the Association has embarked on a multi-million dollar project to install hurricane
impact windows in all units. Plaintiffs owns units at the Grand, but VME and Omni currently have active subleases on all of their units. In 2017, the Association adopted a Policy Concerning Short Term Rentals and Registration of Persons. Entities Engaged in Short Term Rental. This policy has since been rescinded.
Subsequently, the Association created Parking Garage Regulations, requiring all short-term renters desiring to use the parking garage to obtain a parking transponder for a $50.00 fee. Alternative parking in an adjacent garage and at the valet is also available and offered by a separate entity. Hotel guests are exempt from the transponder requirement. The Association also expressed occupancy limits dependent upon the number of bedrooms within any given unit. The Hotel is not affected by the occupancy requirements. The Association requires access to the Condominium to be controlled by fingerprint or bracelet. Again, the Hotel is exempted.
Finally, citing past catastrophic hurricane damage and an impending 40-year recertification, the Association implemented a requirement that all units replace non-hurricane impact windows with hurricane-impact windows Obviously, units already having impact glass were excluded. Those residents who were unable to pay the assessment up front were offered financing plan with approximately four percent interest. Petitioners contend the election was tainted by fraud and that commercial and retail members of the Association should not have been permitted to participate.
Legal Analysis:
A party seeking an injunction under Florida case law must demonstrate: (1) irreparable harm; (2) a clear legal right; (3) an inadequate remedy at law; and (4) consideration of the public interest. Hiles v. Auto Bahn Federation, 498 So. 2d 997, 998 (Fla. 4th DCA 1986). Since a temporary injunction is an extraordinary remedy, it should be granted sparingly and only after the moving party has alleged and proved facts entitling it to relief. Id.
With regard to the First Short-Term Rental Policy, as the policy was rescinded, the prayer for enjoinment is now moot. See e.g. Florida Cohn, Inc. v. City of Tallahassee, 212 So. 3d 452 (Fla. 1st DCA 2017) ("The request for an injunction is also moot because the Ordinance was already nullified and made void by the express language of § 790.33."). Thus, the Court turns its attention to the action of the Board in requiring hurricane impact windows. The validity of the composition of the Board, in this mixed-use condominium unit, has previously been determined by the Florida Supreme Court. See Cohn v. Grand Condominium Ass'n, Inc., 62 So. 3d 1120.
Although the instant motion alleges proxy fraud, the credible testimony adduced at the evidentiary hearing established that a proper election was conducted, and the requisite vote was had to permit for the levying of the assessment. As such, Petitioners have failed to establish a clear legal right to relief.
Moreover, as the impact window project is significantly underway , and is designed to protect against catastrophic loss, an issuance of an injunction halting the project would contravene the public interest.
Finally, the record is devoid of any indication that the assessments have been enforced, thus, the claim is premature. See Margate Village Condominium Ass'n, Inc. v. Wilfred, Inc., 350 So. 2d 16 (Fla. 4th DCA 1977) (the time to challenge the legality of assessment against
condominium unit owners was when the assessments were sought to be enforced).
Where money damages or other relief are available, a preliminary injunction will normally be denied, though extraordinary circumstances may give rise to irreparable harm. 11 A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1. "The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm." Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) ("[A]n alleged loss of business will not support a finding of irreparable harm."); State Dep't of Transp. v. Kountry Kitchen of Key Largo, 645 So. 2d 1086 (Fla. 3d DCA 1994) (holding that an owner's allegation it would suffer business losses if a sign was removed was insufficient to justify the issuance of a temporary injunction), citing B.G.H. Ins. Syndicate, Inc. v. Presidential Fire & Casualty Co., 549 So. 2d 197, 198 (Fla. 3d DCA 1989) ("For injunctive relief purposes irreparable harm is not established where the potential loss can be adequately compensated for by a monetary award."). In the instant case, Petitioners' remaining claims for injunctive relief all turn on the payment of funds or loss of potential short-term rental income. As such, they present claims for quantifiable damages and are all remediable at law.
Moreover, an analysis of the remaining mandatory prongs dictates denial of the injunction. Florida law defines "hotel" in the following manner:
509.242 Public lodging establishments; classifications. - (1) A public lodging establishment shall be classified as a hotel, motel, non-transient apartment, transient apartment, bed and breakfast inn, timeshare project, or vacation rental if the establishment satisfies the following criteria:
(a) Hotel. - A hotel is any public lodging establishment containing sleeping room accommodations for 25 or more guests and providing the services generally provided by a hotel and recognized as a hotel in the community in which it is situated or by the industry. § 509.242, Fla. Stat. (2018). This definition is paramount to understanding the difference in needs between the hotel, designed for the purpose of providing lodging to short-term lodgers, and condominium units, within which unit owners desire to essentially provide hotel services. A rapid increase in short-term rentals did not result in the Board banning such rentals, altogether.
Instead, the Board carefully embarked on a course of regulation to account for security and parking concerns. The public policy concerns articulated at the evidentiary hearing, including serious public safety issues stemming from the entry of unidentified individuals into a private residential building, clearly justify the measures engaged by Board. Quite simply, the Board has to track those individuals entering the residential area in order to minimize risk.
As such, there is no clear legal right to relief, there is no danger of irreparable harm, there is an adequate remedy at law, and issuance of an injunction would contravene public policy.
WHEREFORE Plaintiffs' Renewed Verified Amended Motion for Temporary Injunction is hereby DENIED.
DONE AND ORDERED In Chambers at Miami-Dade County, Florida, on 12/21/18.
Bronwyn C. Miller, Circuit Court Judge.
With this in mind, and after a thorough examination of the record on appeal, we conclude that the trial court did not abuse its discretion by denying VME's motion for temporary injunction and made sufficient factual findings to support its conclusion that the elements necessary to support imposing a temporary injunction were not met. Briceño v. Bryden Invs., Ltd., 973 So. 2d 614, 616 (Fla. 3d DCA 2008) ("A trial court has wide discretion to grant or deny a temporary injunction and an appellate court will not interfere with the exercise of such discretion unless the party challenging the grant or denial clearly shows an abuse of that discretion.") (quoting Perry & Co. v. First Sec. Ins. Underwriters, Inc., 654 So. 2d 671, 671 (Fla. 3d DCA 1995) ); see also Cohen Fin., LP v. KMC/EC II, LLC, 967 So. 2d 224, 226 (Fla. 3d DCA 2007) (same).
Affirmed.
ON MOTION FOR REVIEW
SCALES, J.
Appellants VME Group International, LLC and Omni Property Management, LLC (collectively, "VME") seek review of the trial court's January 15, 2020 order awarding appellate attorneys’ fees to appellee Stuart Kalb pursuant to this Court's September 25, 2019 fee entitlement order. Because the trial court was without jurisdiction to enter the challenged order, we vacate that order. We also take this opportunity to modify this Court's September 25, 2019 fee entitlement order to clarify that it is conditioned upon the appellees ultimately prevailing in the underlying litigation.
This Court's September 25, 2019 fee entitlement order also granted the motion of co-appellee, The Grand Condominium Association, Inc. ("the Association"), seeking appellate attorneys’ fees.
I. RELEVANT BACKGROUND
On July 26, 2018, VME filed in the lower court its second amended complaint against Kalb and others, raising claims against Kalb for declaratory relief, breach of fiduciary duty, civil conspiracy and violation of restraint of trade. The same day, VME sought a temporary injunction based on its underlying claims for declaratory relief. The trial court denied VME's motion for a temporary injunction and VME appealed to this Court the trial court's non-final order denying temporary injunctive relief to VME.
On September 25, 2019, this Court affirmed the trial court's order denying VME temporary injunctive relief, reproducing the trial court's order in full in our opinion. See VME Grp. Int'l, LLC v. Grand Condo. Ass'n, 305 So.3d 30 (Fla. 3d DCA Sept. 25, 2019). Also on September 25, 2019, this Court entered an order granting Kalb and the Association's motions for appellate attorneys’ fees and "remanded to the trial court to fix the amount." Regrettably, our September 25, 2019 fee entitlement order did not contain language indicating that the appellees’ entitlement to fees was conditioned upon Kalb or the Association ultimately prevailing in the litigation.
VME timely filed in this Court a motion for rehearing and rehearing en banc of our September 25, 2019 affirmance opinion, which we denied on October 25, 2019. On November 1, 2019, VME's counsel filed a motion to withdraw that included a request for a thirty-day delay in the issuance of our mandate to allow VME to obtain new counsel. On November 5, 2019, we entered an order granting VME's motion. The order required VME to obtain new counsel within thirty days, and our order also noted that the Court's mandate would be issued "thirty-one (31) days thereafter." Notwithstanding this Court's November 5, 2019 order, on November 20, 2019, the mandate was inadvertently entered; the mandate was recalled that same day by separate Court order. No mandate enforcing our September 25, 2019 affirmance opinion or our September 25, 2019 fee entitlement order has yet issued from this Court.
Notwithstanding the fact that no mandate has issued from this Court, on December 6, 2019, Kalb, relying on this Court's September 25, 2019 fee entitlement order, filed a motion in the lower court seeking a determination of the amount of appellate attorneys’ fees he was entitled to recover. The trial court held an evidentiary hearing on Kalb's attorneys’ fees motion and, on January 15, 2020, entered the challenged order awarding Kalb $38,250 in appellate attorneys’ fees, plus statutory interest. VME timely seeks appellate review of the lower court's January 15, 2020 attorneys’ fees order. See Fla. R. App. P. 9.400(c) ("Review of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.").
The Association also filed a similar motion, but did not seek to have its appellate attorneys’ fees immediately determined and awarded by the trial court, and has not yet set for hearing its motion to determine fees.
VME asserts that Kalb has already executed on this order by garnishing VME's bank account.
II. ANALYSIS
In its motion for review, VME argues, among other things, that: (1) the trial court lacked jurisdiction to enter the January 15, 2020 attorneys’ fees order because the mandate from this Court – finalizing both our September 25, 2019 affirmance opinion and the accompanying September 25, 2019 fee entitlement order – had not yet issued; and (2) awarding unconditional, appellate attorneys’ fees to Kalb at this stage of the proceedings was premature because no prevailing party has been established in the lower tribunal. We agree with VME on both points and address each in turn.
A. The trial court was without jurisdiction to enter the January 15, 2020 attorneys’ fees order prior to this Court's mandate issuing
An appellate court's order is not final until its issuance of the mandate. See Fla. R. App. P. 9.340 ; Henderson v. State, 679 So. 2d 805, 808 n.1 (Fla. 3d DCA 1996) ("Opinions of appellate courts are not final until the time for rehearing and the disposition thereof, if any, has run."). The mandate of an appellate court is the official method of communicating its judgment to the lower tribunal. Colonel v. Reed, 379 So. 2d 1297, 1298 (Fla. 4th DCA 1980). The appellate court does not lose jurisdiction over the matter until the mandate is issued; therefore, the trial court cannot regain jurisdiction over the matter until the appellate court issues its mandate. Id. A trial court lacks jurisdiction to render an order on a matter prior to the appellate court's issuance of a mandate on that matter, and such a premature order is subject to vacatur by the appellate court. Id.; see also Richardson v. State, 257 So. 3d 605, 606 (Fla. 1st DCA 2018) ; Jimenez v. State, 215 So. 3d 1259, 1259-60 (Fla. 3d DCA 2017) ; Leatherwood v. State, 168 So. 3d 328, 330 (Fla. 3d DCA 2015) ; State v. Sharp, 564 So. 2d 217, 217 (Fla. 4th DCA 1990).
We are aware that, absent a stay, during the pendency of appellate review of a non-final order, Florida Rule of Appellate Procedure 9.130(f) expressly authorizes a trial court, to "proceed with all matters, including trial or final hearing, except that the lower tribunal may not render a final order disposing of the cause pending such review absent leave of the court." We do not, however, read this rule to authorize a trial court to enter a judgment fixing the amount of appellate attorneys’ fees for an appeal that is not final and over which the appellate court still retains jurisdiction. Indeed, until the mandate issues, the appellate court's opinion, and any fee award that may be intertwined with the opinion, is not final. See Fla. R. App. P. 9.340 ; Henderson, 679 So. 2d at 808 n.1.
Therefore, we vacate the trial court's January 15, 2020 attorneys’ fee order because it was entered without jurisdiction. The trial court shall take the necessary actions to restore the parties to their respective positions as if the January 15, 2020 attorneys’ fee order had not been entered.
B. Our September 25, 2019 fee entitlement order should have been conditioned upon Kalb ultimately prevailing in the matter
In his motion seeking appellate attorneys’ fees filed in this Court, Kalb relied upon a contractual provision contained within the Association's Declaration of Condominium and section 718.303 of the Florida Statutes, both of which condition entitlement to fees on being the prevailing party below. As this Court's prior opinion affirming the denial of temporary injunctive relief makes clear, however, several of VME's "remaining claims for injunctive relief all turn on the payment of funds or loss of potential short-term rental income. As such, they present claims for quantifiable damages and are all remediable at law." VME Grp. Int'l, LLC, 305 So.3d at 33. Put another way, while Kalb prevailed on VME's temporary injunction motion, Kalb ultimately might not prevail in this litigation. Hence, this Court's September 25, 2019 fee entitlement order should have conditioned Kalb's entitlement to appellate attorneys’ fees on Kalb ultimately prevailing in the underlying case.
This Court's September 25, 2019 fee entitlement order instructing the trial court to "fix the amount" of appellate fees was premature, because VME's underlying claims have not yet been resolved. See Balmaseda v. Okay Ins. Exch. of Am. LLC, 240 So. 3d 146, 148 (Fla. 3d DCA 2018) ("Based on our review, we conclude that this Court's instructions to the trial court ‘to fix amount’ has caused the trial court to prematurely address and rule on Okay Insurance's motion for appellate attorney's fees because Okay Insurance's counterclaim has not yet been fully resolved."). We therefore modify, nunc pro tunc , this Court's September 25, 2019 fee entitlement order to clarify that Kalb's entitlement to appellate attorneys’ fees in this appeal is conditioned upon Kalb ultimately prevailing in the lower proceedings on VME's claims against him. Id. ("The order granting Okay Insurance's motion for attorney's fees should have provided that the fees were contingent on Okay Insurance ultimately prevailing in the lower tribunal on its counterclaim against Balmaseda.").
As referenced in footnote 1, supra , this Court's September 25, 2019 fee entitlement order also awarded appellate attorneys’ fees to the Association, which also based its entitlement to fees on the Association's Declaration of Condominium and section 718.303. We therefore modify, nunc pro tunc , this Court's September 25, 2019 fee entitlement order to clarify that, as with Kalb's entitlement to fees, the Association's entitlement to fees is similarly conditioned upon the Association ultimately prevailing in the lower proceeding on the claims against it.
III. CONCLUSION
The trial court lacked jurisdiction to enter the January 15, 2020 attorneys’ fee order awarding Kalb appellate attorney's fees because the mandate from this Court for the subject appeal had not yet issued. Therefore, we vacate the trial court's January 15, 2020 attorneys’ fee order and instruct the trial court to take the necessary actions to restore the parties to their respective positions as if the January 15, 2020 attorneys’ fee order had not been entered. Further, we amend, nunc pro tunc , this Court's September 25, 2019 fee entitlement order to clarify that the appellees’ entitlement to attorneys’ fees in this appeal are conditioned upon the appellees ultimately prevailing in the lower court proceedings.
The Clerk of this Court is directed to issue, immediately following the issuance of this opinion, the mandate that finalizes both our September 25, 2019 affirmance opinion and, as modified herein, our accompanying fee entitlement order.
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Lower court's attorneys’ fee order vacated, with instructions; this Court's fee entitlement order modified.