Filed: Jun. 20, 2018
Latest Update: Mar. 03, 2020
Summary: Third District Court of Appeal State of Florida Opinion filed June 20, 2018. Not final until disposition of timely filed motion for rehearing. _ No. 3D16-1381 Lower Tribunal No. 15-22197 _ ASA College, Inc., etc., Appellant, vs. Dezer Intracoastal Mall, LLC, etc., Appellee. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, John Schlesinger, Judge. Cole, Scott & Kissane, P.A., and Alexandra Valdes and Scott A. Cole, for appellant. Coffey Burlington, P.L., and Susan E.
Summary: Third District Court of Appeal State of Florida Opinion filed June 20, 2018. Not final until disposition of timely filed motion for rehearing. _ No. 3D16-1381 Lower Tribunal No. 15-22197 _ ASA College, Inc., etc., Appellant, vs. Dezer Intracoastal Mall, LLC, etc., Appellee. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, John Schlesinger, Judge. Cole, Scott & Kissane, P.A., and Alexandra Valdes and Scott A. Cole, for appellant. Coffey Burlington, P.L., and Susan E. ..
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Third District Court of Appeal
State of Florida
Opinion filed June 20, 2018.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-1381
Lower Tribunal No. 15-22197
________________
ASA College, Inc., etc.,
Appellant,
vs.
Dezer Intracoastal Mall, LLC, etc.,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, John Schlesinger, Judge.
Cole, Scott & Kissane, P.A., and Alexandra Valdes and Scott A. Cole, for
appellant.
Coffey Burlington, P.L., and Susan E. Raffanello, for appellee.
Before EMAS, SCALES and LUCK, JJ.
EMAS, J.
ASA College, Inc. (“ASA”) appeals the trial court’s order denying ASA’s
motion for temporary injunctive relief and granting temporary injunctive relief to
Dezer Intracoastal Mall, LLC (“Dezer”). For the reasons that follow, we reverse
the denial of ASA’s motion, but affirm the order, insofar as it grants Dezer’s
motion.
BACKGROUND
The dispute between ASA and Dezer arose out of their respective ownership
of two parcels located within the Intercoastal Mall in North Miami Beach (the
“Mall Property”). In 2013, Dezer purchased what is hereinafter referred to as the
“Center Parcel” and, thereafter, ASA purchased what is hereinafter referred to as
the “Office Parcel.” When ASA and Dezer purchased their respective parcels,
each was subject to an easement—the Amended and Restated Shopping Center
Operation and Reciprocal Easement Agreement (“REA”)—executed in 1997 by
the prior owners of the Center Parcel and the Office Parcel.
In 2014, ASA began operating a college on the Office Parcel, and, according
to ASA, Dezer thereafter attempted to limit ASA’s ability to utilize certain
common-area parking areas of the Center Parcel, which it was entitled to use under
the terms of the REA. Specifically, according to ASA, Dezer erected fences on the
Center Parcel and advised ASA that it would place signage and implement a
window sticker system which would limit ASA and its guests to parking only in a
specified portion of the Center Parcel.
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ASA sued, seeking, inter alia, temporary and permanent injunctive relief
asserting that Dezer violated the REA by interfering with ASA’s ability to use the
Center Parcel common-area parking. Dezer counterclaimed for, inter alia,
temporary and injunctive relief, asserting that, pursuant to the REA, ASA was
prohibited from operating a college on the Office Parcel.
ASA’s motion for temporary injunction requested the court to enjoin Dezer
from “erecting large green fences on common parking areas which ASA has the
right to use,” and from “threatening to remove [ASA’s] easement for common
parking rights.” Dezer’s motion for temporary injunction asked the court to enjoin
ASA from operating a “post-secondary educational facility, college, or any use
other than office use.”
Following an evidentiary hearing, the trial court denied ASA’s motion for
temporary injunction on the parking dispute and granted Dezer’s motion,
temporarily enjoining ASA from operating its college on the Office Parcel. ASA
appeals, asserting that, as to the parking dispute, the trial court incorrectly
construed the terms of the REA, resulting in an erroneous conclusion that ASA
could not demonstrate a substantial likelihood of success on the merits. ASA also
contends that the trial court abused its discretion in granting Dezer’s motion for
temporary injunction on the office use dispute. We address each issue in turn.
THE PARKING DISPUTE
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Generally, a party seeking a temporary injunction “must establish that: (1)
irreparable injury will result if the injunction is not granted, (2) there is no
adequate remedy at law, (3) the party has a clear legal right to the requested relief,1
and (4) the public interest will be served by the temporary injunction.” Bay N
Gulf, Inc. v. Anchor Seafood, Inc., 971 So. 2d 842, 843 (Fla. 3d DCA 2007). “A
preliminary injunction is an extraordinary remedy which should be granted
sparingly.” Garcia v. Dumenigo,
46 So. 3d 1085, 1087 (Fla. 3d DCA 2010)
(quoting City of Jacksonville v. Naegele Outdoor Adver. Co.,
634 So. 2d 750, 752
(Fla. 1st DCA 1994)) (additional citation omitted).
In denying ASA’s motion for temporary injunction on the parking dispute,
the trial court determined that ASA had proven all of the requisite prongs for
obtaining the injunction, with the exception of demonstrating a substantial
likelihood of success on the merits. Specifically, the court determined that,
although the REA contains general language providing ASA an easement to park
in certain common-area parking areas in the Center Parcel, a more specific
provision of the REA limits ASA to 100 parking spaces in the Office Parcel, and
therefore, ASA could not demonstrate a substantial likelihood of success on the
merits of its action.
1 This prong is alternatively described as a substantial likelihood of prevailing on
the merits. See Miami-Dade Cty. v. Concrete Structures, Inc., 114 So. 3d 333 (Fla.
3d DCA 2013).
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Although we generally review such orders for an abuse of discretion,
Anchor Seafood, 971 So. 2d at 843, to the extent the order is based on the trial
court’s interpretation of a contract, we apply a de novo standard of review.
Telemundo Media, LLC v. Mintz,
194 So. 3d 434, 435 (Fla. 3d DCA 2016). See
also Gainesville Woman Care, LLC v. State,
210 So. 3d 1243, 1258 (Fla. 2017)
(holding: “The standard of review of trial court orders on requests for temporary
injunctions is a hybrid. To the extent the trial court's order is based on factual
findings, we will not reverse unless the trial court abused its discretion; however,
any legal conclusions are subject to de novo review”) (internal citation omitted).
Because the trial court’s denial of ASA’s motion was premised upon its
construction of the terms of the REA, we apply the de novo standard of review.
Applying this standard, we conclude that the trial court erred in its construction of
the REA, and that, under a correct construction of the terms of the REA, ASA
satisfied the “substantial likelihood of success on the merits” prong.
The relevant sections of the REA provide:
ARTICLE I
DEFINITIONS
As used in this REA, the following terms have the following
meanings:
...
1.3. Common Area.
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“Common Area” means all areas within the boundary of the
Center Parcel or Office Parcel that are, or are designated or
intended to be, available for the non-exclusive use,
convenience and benefit of all Occupants (as hereinafter
defined) of the Office Parcel and Center Parcel and their
respective Permittees (as hereinafter defined).
Among other things, Common Area includes by way of
illustration and not of limitation: (a) Access Roads; (b) the
Parking Area (as hereinafter defined); (c) sidewalks and
walkways . . .
...
1.9. Occupant
“Occupant” or “Occupants” means any Person entitled by Lease
to use and occupy any area within the Center or the Office
Parcel.
...
1.11. Parking Area. .
“Parking Area” means all areas in the Center or Office
Parcel which are set apart or used from time to time for
automobile and other vehicle traffic and parking, including,
without limitation, traffic lanes, aisles and roadways (including
Access Roads) and curbs adjacent thereto; vehicle parking stalls
at grade or in multi-level parking decks; pedestrian walkways,
grade separations, including retaining walls; lighting standards;
and traffic and directional signals and all amenities relating
thereto.
1.12. Party.
A “Party” means Center Owner or Office Owner and “Parties”
mean all of the foregoing, or any successor Person(s) acquiring
the leasehold and/or fee interest, as the case may be, of a Party
in or to any portion of such Party’s Parcel.
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1.13. Permittees
“Permittees” means all Occupants and their respective officers,
directors, employees, agents, partners, contractors, customers,
visitors, invitees, licensees and concessionaires.
...
ARTICLE II
EASEMENTS
2.1. Definitions and Documentation.
For purposes of this Article, the following will apply:
(a) All rights, privileges and easements granted herein for the
benefit of a Party (the “Grantee”) are nonexclusive and in
common with the party granting such rights, privileges and/or
easements (the “Grantor”) and, unless provided otherwise, are
irrevocable and for the benefit of each of the Parties hereto and
their respective successors and assigns as owners of their
respective Parcels.
...
2.2 Easements for Use of Common Areas (Other than Common
Utility Facilities and Access Roads).
(a) Center Owner hereby grants to Office Owner an easement
in the Common Areas on the Center Parcel (other than the
Access Road portions thereof referred to in Section 2.3 and the
Common Utility Facilities referred to in Section 2.4) for the
benefit of the Office Parcel for:
(1) ingress to and egress from the Office Parcel; and
(2) circulation, passage and parking of vehicles, subject to
Section 6.2; and
(3) circulation, passage and accommodation of pedestrians;
provided, however, that such easements are limited to
such portions of the Common Area of the Center Parcel as
are set aside, required and authorized for such use.
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(b) Office Owner, to the extent any portion of the Office Parcel
constitutes roadway, pedestrianways or parking spaces, hereby
grants to Center Owner an easement in the Common Areas on
the Office Parcel for the benefit of the Center Parcel for:
(1) ingress to and egress from the Center Parcel; and
(2) circulation, passage and parking of vehicles; and
(3) circulation, passage and accommodation of
pedestrians; provided, however, that such easements are
limited to such portions of the Common Area of the
Office Parcel as are set aside, required and authorized for
such use.
...
ARTICLE VI
PARKING REQUIREMENTS
6.1. Parking Spaces.
Occupants of the Office Parcel and their Permittees shall have
the right to use up to one hundred (100) non-designated parking
spaces on the Office Parcel for parking automobiles, subject to
those rules and regulations applicable to other users of parking
spaces thereon.
6.2. Charges for Parking; Employee Parking Areas.
No specific charge shall be made to or collected from any
Occupants or Permittees on the Office Parcel for the right to
park vehicles in the Parking Areas other than the payment by
Office Owner of its share of the Common Area expenses.
Although section 6.1 establishes a limit of 100 parking spaces on the Office
Parcel that may be used by Occupants of the Office Parcel (e.g., ASA) and their
Permittees, there is no similar limitation on the easement granted in section 2.2(a)
for parking by the Office Owner (i.e.,
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ASA) in the common areas located within the Center Parcel. The only limitation
on the easement established in section 2.2(a) is that it is “subject to section 6.2,”
which simply provides that the Occupants or Permittees on the Office Parcel shall
not be charged for parking, other than what Office Owner (ASA) must pay as its
share of common area expenses.
Thus, contrary to the trial court’s interpretation that the “specific provision”
of section 6.1 controls over the REA’s “general contents,” there is no conflict
between sections 2.2(a) and 6.1, and thus no need to determine which provision
“controls.” Instead, the plain language contained within these two provisions can
be read in harmony: under section 6.1, the Office Parcel’s occupants and
permittees (including ASA) have the right to use up to 100 spaces for parking on
the Office Parcel, and, additionally under section 2.2(a), the Office Owner (ASA)
has an easement to use the common-area parking areas of the Center Parcel, which
is not limited in any manner by section 6.2. See City of Homestead v. Johnson,
760 So. 2d 80, 84 (Fla. 2000) (acknowledging “the rule of construction requiring
courts to read provisions of a contract harmoniously in order to give effect to all
portions thereof”).
Accordingly, because we conclude that the trial court erred in its
interpretation of the plain language of the REA, resulting in an erroneous
determination that ASA failed to establish a substantial likelihood on the merits
(while finding ASA satisfied the
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remaining prongs needed for a temporary injunction), we reverse the court’s denial
of ASA’s motion for a temporary injunction and remand for entry of a temporary
injunction in favor of ASA. See St. Johns Inv. Mgmt. Co. v. Albaneze, 22 So. 3d
728 (Fla. 1st DCA 2009) (reversing denial of motion for temporary injunction
where trial court’s construction of contract conflicted with its plain meaning and
thus, holding it was error for the trial court to find that appellant failed to
demonstrate a substantial likelihood of success on the merits).
THE OFFICE USE DISPUTE
In temporarily enjoining ASA’s operation of a college on the Office Parcel,
the trial court determined that Dezer had established the requisite elements for
obtaining such relief, to wit: irreparable injury, no adequate remedy at law, a
substantial likelihood of success on the merits and that the injunction will serve the
public interest.
Article VII of the REA provides in pertinent part:
ARTICLE VII
GENERAL COVENANTS
...
7.2. Limitation on Detrimental Characteristics
No use, operation or occupancy will be made, conducted or permitted
on any part of the Office Parcel which use or operation is obviously
detrimental to the operation of the Center in the reasonable judgment
of Center Owner. Included among the uses or operations which
are prohibited because of their obvious detriment to retail stores,
merchandise or services usually found in a retail center, as well as
their obvious detrimental effect upon the general appearance of the
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Center are uses or operations which produce or are accompanied by
characteristics such as, but not limited to, the following:
(a) Any noise, litter, odor or other activity which may constitute
a public or private nuisance;
(b) Any physically damaging or dangerous hazards;
(c) Any dumping, disposal, incineration or reduction of garbage
or refuse; or
(d)Any use of the Office Parcel for other than office use.
We find no abuse of discretion in the trial court’s decision to temporarily
enjoin ASA from operating a college on the Office Parcel, pending a final decision
on the merits. Although ASA is correct that the purpose of a temporary injunction,
generally, is to preserve the status quo, Garcia v. Dumenigo, 46 So. 3d 1085, 1087
(Fla. 3d DCA 2010), this is only so where a failure to maintain the status quo will
result in irreparable injury. Wexler v. Lepore,
878 So. 2d 1276 (Fla. 4th DCA
2004). And this court has previously held that where a restrictive covenant is
involved, the party seeking to enforce the covenant need not establish irreparable
injury. Jack Eckerd Corp. v. 17070 Collins Ave. Shopping Ctr., Ltd.,
563 So. 2d
103, 105 (Fla. 3d DCA 1990). In addition, “a mandatory injunction is the proper
means of enforcing a restrictive agreement affecting real estate.” Fox v. Madsen,
12 So. 3d 1261, 1263-64 (Fla. 4th DCA 2009). Accordingly, we affirm the trial
court’s order granting Dezer’s motion for temporary injunctive relief.2
Affirmed in part, reversed in part, and remanded with directions and for
further proceedings consistent with this opinion.
2 We find no merit in ASA’s additional arguments on appeal.
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