LAWSON, J.
Planned Parenthood of Greater Orlando, Inc. ("Planned Parenthood") appeals a nonfinal order granting a temporary injunction to MMB Properties ("MMB"), a cardiology practice, prohibiting Planned Parenthood from performing abortions or sonograms in violation of a restrictive covenant in the medical park where both parties own property.
"Generally, a trial court is afforded `wide discretion to either grant, deny, dissolve, or modify a temporary injunction, and an appellate court will not intercede unless the aggrieved party clearly shows an abuse of discretion.'" Avalon Legal Info. Servs., Inc. v. Keating, 110 So.3d 75, 80 (Fla. 5th DCA 2013) (quoting Meyers v.
Four elements are generally required for a temporary injunction: (1) a substantial likelihood of success on the merits; (2) a likelihood of irreparable harm; (3) the unavailability of an adequate remedy at law; and (4) that a temporary injunction will serve the public interest. DePuy Orthopaedics, Inc. v. Waxman, 95 So.3d 928, 938 (Fla. 1st DCA 2012). Before addressing Planned Parenthood's challenges to the trial court's findings on these elements, we will first discuss the evidence properly considered under our scope of review. We will address each of these elements after briefly discussing the evidence properly considered on appeal and our scope of review.
This court previously, by order, granted a stay of the injunction pending appeal, and expressly considered "the record as a whole, including the affidavits Planned Parenthood filed in support of its motion for rehearing." (emphasis added).
With respect to the "substantial likelihood of success" element, Planned Parenthood first argues that the trial court erred by enjoining it from performing abortions because the restriction at issue does not prohibit the activities of performing abortions; rather, it prevents the operation
(Emphasis added). Interestingly, the trial court did not find that performing abortions would transform Planned Parenthood's facility into an outpatient surgical center. Instead, it found that MMB had a substantial likelihood of success in proving that abortions are outpatient surgical procedures.
Both parties argue that the term "outpatient surgical center" is clear and unambiguous, but offer differing definitions. MMB relies on a dictionary definition of "center" as "a facility providing a place for a particular activity or service." Merriam-Webster Online Dictionary, http:// www.merriam-webster.com/dictionary/ center (last visited April 6, 2015). Thus, an "outpatient surgical center" would be a facility providing a place for performing outpatient surgical procedures. Planned Parenthood relies on the statutory definition of "ambulatory surgical center," in section 395.002(3), Florida Statutes (2013), which is defined as follows:
"Florida adheres to the general rule that a reasonable, unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms." Barrett v. Leiher, 355 So.2d 222, 225 (Fla. 2d DCA 1978). "If it is necessary to construe a somewhat ambiguous term, the intent of the parties as to the evil sought to be avoided expressed by the covenants as a whole will be determinative." Id.; see also Killearn Homes Ass'n v. Visconti Family Ltd. P'ship, 21 So.3d 51, 53 (Fla. 1st DCA 2009) ("It was improper for the court to look to an outside source to determine the meaning of the word `building' as used in the restriction, rather than first considering the language of the deed restriction as a whole." (citations omitted)).
The restriction in question prohibits certain "activities," namely outpatient surgical centers, emergency medical centers, and diagnostic imaging centers. Although it does not further specify the activities included in the first two categories, it does in the third category, stating that such activities included "the following radiographic testing," with a list of specific imaging procedures. Thus, the focus of this restriction is on prohibited activities. In this light, the use of the word "center" does not necessarily suggest a quantitative requirement that such activities be the "primary purpose" of the location. Rather, it is merely a location where such activities occur.
In addition, the restriction provides an exception for such activities when they are "ancillary and incidental to a physician's practice of medicine." MMB is correct that adopting Planned Parenthood's statutory definition would render this exception meaningless because if an outpatient surgical center is defined as a facility the primary purpose of which is to provide out-patient surgical procedures, then such procedures could not be "ancillary and incidental" to a physician's practice of medicine. However, if it is merely a facility where outpatient surgical procedures are performed along with other procedures, then it would not prohibit abortions if they were ancillary and incidental to a physician's practice of medicine. Thus, the exception strongly suggests that any outpatient surgical procedures beyond those that are "ancillary and incidental" to a physician's medical practice are prohibited, even if the primary purpose of the location is not to provide outpatient surgical procedures.
We conclude that, while the restriction is rather poorly drafted, it is not unclear. It prohibits the property from being used as an outpatient surgical center, the common and ordinary meaning of which is a facility or place for, or for the purpose of, performing outpatient surgical procedures. Having construed, de novo, the restrictive covenant, we readily find that the trial court's factual findings as to this issue are supported by competent, substantial evidence. The trial court's findings were that abortions are outpatient surgical procedures; that Planned Parenthood's facility is not a physician's practice of medicine; and, that even if the facility is operated as a physician's practice of medicine, its performance of abortions was not ancillary or incidental to that practice. Accepting these findings, we affirm the trial court's ultimate finding that MMB had a substantial likelihood of success in proving that Planned Parenthood's performance of
Next, Planned Parenthood argues that MMB failed to prove irreparable harm, which is normally required to obtain an injunction. However, MMB correctly argues that when injunctions enforce restrictive covenants on real property, irreparable harm is not required. See, e.g., Stephl v. Moore, 94 Fla. 313, 114 So. 455 (1927) (holding complainant not required to allege irreparable harm in seeking injunction to prevent violation of restrictive covenant restraining free use of land; complainant only needed to allege violation of covenant); Autozone Stores, Inc. v. Ne. Plaza Venture, LLC, 934 So.2d 670, 673 (Fla. 2d DCA 2006) ("Florida law has long recognized 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."); Jack Eckerd Corp. v. 17070 Collins Ave. Shopping Ctr., Ltd., 563 So.2d 103, 105 (Fla. 3d DCA 1990) ("Where an injunction is sought to prevent the violation of a restrictive covenant, appropriate allegations showing the violation are sufficient and it is not necessary to allege, or show, that the violation amounts to an irreparable injury."); Coffman v. James, 177 So.2d 25, 31 (Fla. 1st DCA 1965) ("It is well established in this jurisdiction that even in the absence of a showing of irreparable [sic] injury injunctive relief is grantable as a matter of right, subject only to sound judicial discretion, to restrain the violation of a restrictive covenant affecting real estate.").
Planned Parenthood argues that the trial court erred in relying on Autozone and in failing to follow a case that Autozone distinguished: Liza Danielle, Inc. v. Jamko, Inc., 408 So.2d 735 (Fla. 3d DCA 1982). In Liza Danielle, a shoe store leasing space in a shopping center had an exclusivity provision in its lease prohibiting the lessor from leasing any other space in the shopping center to another shoe store. When the lessor violated this provision, the first shoe store sued and obtained an injunction barring the second shoe store from operating. The appellate court reversed the injunction in part because of the availability of an adequate legal remedy and the failure to prove irreparable harm. However, as Autozone and Jack Eckerd both point out, Liza Danielle did not involve a restrictive covenant running with the land. It involved an exclusivity provision in a lease for which damages were available. Accordingly, Planned Parenthood's reliance on it in this case is misplaced. MMB was not required to establish irreparable harm.
Moreover, the trial court properly rejected Planned Parenthood's argument that it would suffer irreparable harm if the injunction were granted. As the court correctly noted, Planned Parenthood was aware of the restrictions and proceeded forward at its own peril. See Daniel v. May, 143 So.2d 536, 538 (Fla. 2d DCA 1962) (noting that courts do not ordinarily consider amount of injury suffered if injunction granted except where violation of covenant is minute); Chick-Fil-A, Inc. v. CFT Dev., LLC, 652 F.Supp.2d 1252, 1263 (M.D.Fla.2009) (noting that defendants were aware of restrictive covenant when they purchased property and thus, "[w]hatever hardship may accrue to Defendants by virtue of a permanent injunction could easily have been avoided"), aff'd, 370 Fed.Appx. 55 (11th Cir.2010). "Where a purchaser of land intends to use it for a purpose not allowed by a restrictive covenant, he should seek to have the deed restriction removed before purchasing the property." Wood v. Dozier, 464 So.2d 1168, 1170 (Fla.1985).
Both parties seek appellate attorneys' fees under an attorneys' fee provision in the 1988 Covenants. Neither party fully quotes that provision. It states:
(Emphasis added).
"Contractual provisions concerning attorney's fees are to be strictly construed." Williams v. Williams, 892 So.2d 1154, 1155 (Fla. 3d DCA 2005) (citations omitted). The above provision does not authorize attorneys' fees in this case. Although the first part of the provision permits enforcement by injunction, the attorneys' fee provision is more narrowly worded. It authorizes fees for "obtaining an order from a court of competent jurisdiction enabling it to enter upon the portion of the Lot upon or as to which such violation exists, and shall summarily abate or remove the same." The injunction in this case does not enable MMB to enter upon Planned Parenthood's Property. As such, we find that neither party is entitled to attorneys' fees.
AFFIRMED IN PART; REVERSED IN PART; REMANDED; ATTORNEYS' FEES MOTIONS DENIED.
PALMER, J., concurs.
EVANDER, J., concurs in part, dissents in part with opinion.
EVANDER, J., concurring in part, dissenting in part.
I concur in the majority's opinion to the extent it: (1) reverses the trial court's decision to temporarily enjoin Planned Parenthood from performing sonograms; (2) strikes the vague language in the trial court's order prohibiting Planned Parenthood