Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SPRINGSTED HOLDINGS, INC., Appellant, v. DEL PRADO MALL PROFESSIONAL CONDOMINIUM ASSOCIATION, INC., Appellee. No. 2D21-1875 October 21, 2022 Appeal from the Circuit Court for Lee County; Keith R. Kyle, Judge. Kristie P. Mace and Peter J. Cambs of Goede, DeBoest & Cross, PLLC, Naples, for Appellant. Trisha L. Ryan of Lusk, Drasites & Tolisano, P.A., Cape Coral, for Appellee. SMITH, Judge. Commercial tenant, Springsted Holdings, Inc. (SHI), appeals from a final judgment rendered in favor of Del Prado Mall Professional Condominium Association, Inc. (the Association), after SHI sued the Association for breach of contract, tortious interference with an advantageous business relationship, and injunctive relief following the Association's placement of a dumpster structure in the common area parking lot. Because the Association's construction of a dumpster structure eliminated six communal parking spots, in violation of SHI's clear legal right to the vehicular and traffic easement and parking facilities located in the common elements, injunctive relief was appropriate. Accordingly, while we affirm the judgment in part, we reverse that portion denying injunctive relief and remand with instructions.1 SHI owns a commercial unit in a strip mall that consists of nineteen condominium units and is governed by the Association's Amended and Restated Condominium Declaration of Del Prado Mall Professional Condominium and the Amended and Restated Bylaws 1 SHI also brought claims for (1) breach of contract for failing to perform all obligations under the governing documents, which included the Association's failure to properly notice and hold board meetings and (2) tortious interference with an advantageous business relationship based on the Association's placing the dumpster structure in the common area parking lot commonly used by SHI customers. We affirm the final judgment in favor of the Association on those counts without further comment. 2 of Del Prado Mall Professional Condominium (collectively the governing documents). Each condominium unit owns a percentage of the common elements of the strip mall, one of which includes the parking lot behind the strip mall. SHI has been a member of the Association since 2003, operating High Tech Laundry—a coin laundry business. Its business is located closest to the common area parking lot behind the strip mall. SHI alleged in its amended complaint that its customers would often use the common area parking lot because the parking spots were close to SHI's unit and allowed them to easily carry large loads of laundry to the laundromat. In 2016, SHI sued the Association for breach of contract alleging that the Association failed to maintain and clean the condominium property as required by the condominium's governing documents. One of the allegations in the 2016 litigation was that the Association was not maintaining a dumpster and the area around the dumpster, which was then located in a grassy area of the condominium property. The trial court found in favor of SHI on its breach of contract claim, and with regard to the dumpster, the trial court ordered the Association to construct an enclosure around 3 the dumpster and to "otherwise fully comply with all applicable codes." In response to the final judgment, the Association began to construct a concrete pad in the common area parking lot directly behind SHI's unit, with plans to move the dumpster from the grassy area to the common area parking lot. The new concrete pad and block enclosure were built to accommodate two dumpsters, thereby eliminating six of the seven existing parking spots2—all of which are within the vehicular and traffic easement and parking facilities located in the common elements according to the governing documents. SHI filed a motion for preliminary injunction in the 2016 case, arguing the location of the dumpster was chosen in retaliation for SHI's suing the Association and that SHI's laundry business was being damaged by the Association's actions in constructing the dumpster structure in the parking lot of the common elements. SHI did not raise any issues related to the governing documents or the easements and common elements 2 The dumpster structure utilizes a total of six parking spots when accounting for the bollards and two horizontal swinging doors, which extend from each side of the structure. 4 provided therein. The trial court denied SHI's motion for preliminary injunction. Thereafter, SHI commenced the action seeking, among other claims, injunctive relief to remove the dumpster structure. The amended complaint generally alleges that the dumpster structure was wrongfully constructed on essential parking spots in violation of the governing documents, which SHI attached to the amended complaint. The Association does not dispute that the dumpster and enclosure "encroach[es] over six (6) parking spaces," which are located within the easement and parking facilities of the common elements. It is also undisputed that certain designated easements are set forth in section IV.A. of the Amended Declaration, which provides in relevant part: Easements Each of the following easements is a covenant running with the land of the condominium and notwithstanding any of the other provisions of this Declaration, may not be amended or revoked and shall survive the termination of the Condominium and the exclusion of any of the lands of the Condominium from the Condominium. .... 5 2. PEDESTRIAN AND VEHICULAR TRAFFIC. Easements for pedestrian traffic over, through and across sidewalks, paths, walks and lanes, as the same may from time to time exist, upon the common elements; and for vehicular traffic over, through and across such portions of the common elements as may be from time to time paved and intended for such purposes. (Emphasis added.) The Amended Declaration defines common elements as: A. COMMON ELEMENTS All of the real property heretofore described, less and excepting therefrom the units hereinabove referred to, is described and referred to herein as the "common elements" which definition shall include the structures and the property on which they are located and specifically includes but is not limited to the land, roof, main walls, slabs, stairways, walkways, gardens, pumps, generators, water tanks trees and shrubs, utility lines, parking facilities, elevator and storage areas. (Emphasis added.) As provided under section X., titled Use Restrictions, these common elements shall be used only for the purposes for which they are intended in the furnishing of services and facilities for the use of and access to the units. Common walks, elevators, stairways, and other common areas shall not be obstructed, littered, defaced or misused in any manner. (Emphasis added.) 6 Prior to trial, the parties filed their Agreed Uniform Pretrial Conference/Trial Order setting forth the agreed statement of the case, including: SHI's claim is that a dumpster pad and enclosure was wrongfully installed on the common area in the Association and as such must be removed. [The Association] defends on the ground that a previous Lee County, Florida case (16-CA-1139) ordered the installation of the dumpster pad and enclosure and contends that the [c]ourt in the prior case has previously ruled in the other case regarding the placement of the dumpster. (Emphasis added.) Seven of the seventeen issues to be tried pursuant to the agreed trial order concerned whether the location of the new dumpster structure violates the governing documents and whether an injunction is the appropriate vehicle to remove the structure.3 The parties also filed a stipulation of facts and evidence stipulating to the admissibility of the governing documents, as well as the following relevant facts: 21. [The Association's President] failed to post proper notice for a Board or Member's meeting to obtain approval for the construction of the dumpster pad and enclosure. 3 Disputed issues 2(c), (d), (f), (j), (n)–(q) all concerned the location of the new dumpster structure. 7 22. [The Association's President] failed to conduct a Board or Member's meeting to obtain approval for the construction of the dumpster pad and enclosure. .... 31. The dumpster pad and enclosure at issue in this matter encroached over six (6) parking spaces once it was fully constructed. .... 33. The gates on the dumpster enclosure were installed to allow the gates to slide horizontally on a track that extended several feet from the enclosure on each side. Additionally[,] bollards were placed on both sides of the dumpster in the two additional parking spaces that were taken on each side of the dumpster. At the bench trial, the Association's President testified, without objection, that the dumpster pad and enclosure were constructed within the easement and parking facilities of the common elements that allow for ingress and egress to the strip mall area. But the Association's President disagreed that the dumpster structure "is a barrier and interferes with this easement," reasoning that this is a - - uncommon problems when we have for a condo association. And we have to react to save the condo association and protect the condo association. In this case, with the dumpster, that's why - - and in case of 8 protecting the condo association, we have to compromise and amend the [governing documents]. But the Association's President conceded that no amendments were made to the governing documents to allow for the dumpster structure to be built upon the common area parking facility. Despite the undisputed evidence presented at trial, the trial court disagreed that SHI was entitled to injunctive relief and entered a final judgment finding, in relevant part, that SHI failed to establish an irreparable harm or lack of an adequate remedy at law or that public interest would be served by the injunction.4 4 To the extent the final judgment finds that SHI failed to establish that public interest would be served by the injunction, that was error. SHI was not seeking a preliminary, temporary injunction, which requires a showing that public interest would be served by the injunction. SHI was seeking a permanent injunction based upon the Association's alleged violation of the governing documents, and a showing that an injunction would serve some public interest is not required when seeking a permanent injunction. Compare Charlotte County v. Grant Med. Transp., Inc., 68 So. 3d 920, 922 (Fla. 2d DCA 2011) ("To obtain temporary injunctive relief, the movant must satisfy each of the following elements: (1) the movant has a clear legal right to the requested relief or, in other words, it has a substantial likelihood of success on the merits; (2) the movant will suffer irreparable harm if the trial court refuses to grant the injunction; (3) the movant does not have available another adequate remedy at law; and (4) a public interest will be served by the imposition of the injunction."), with Amelio v. Marilyn Pines Unit II Condo. Ass'n, 173 So. 3d 1037, 1039 (Fla. 2d DCA 2015) ("In order to establish entitlement to a mandatory 9 I. We review de novo the trial court's construction of the Amended Declaration. See SHM Cape Harbour, LLC v. Realmark META, LLC, 335 So. 3d 754, 759 (Fla. 2d DCA 2022); Morgan v. Herff Jones, Inc., 883 So. 2d 309, 313 (Fla. 2d DCA 2004). To the extent that the injunction rests on factual findings, we review for an abuse of discretion. Fla. Dep't of Transp. v. Tropical Trailer Leasing, LLC, 308 So. 3d 242, 246 (Fla. 1st DCA 2020); Duvallon v. Duvallon, 409 So. 2d 1162, 1163 (Fla. 3d DCA 1982) (noting that because trial courts have wide discretion in granting, denying, and modifying injunctions, unless there is a clear abuse of that discretion, an appellate court will not interfere). II. We first consider the merits of SHI's claim for a mandatory injunction requiring the Association to remove the dumpster structure from the parking facilities located within the common elements due to a violation of the governing documents. injunction there must be a clear legal right which has been violated, irreparable harm must be threatened, and there must be a lack of an adequate remedy at law." (citing Shaw v. Tampa Elec. Co., 949 So. 2d 1066, 1069 (Fla. 2d DCA 2007))). 10 "A mandatory injunction is proper where a clear legal right has been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy at law." Shaw v. Tampa Elec. Co., 949 So. 2d 1066, 1069 (Fla. 2d DCA 2007) (quoting Dep't of Health & Rehab. Servs. v. Weinstein, 447 So. 2d 345, 345 (Fla. 4th DCA 1984)). This court has recognized that "[i]njunctive relief is normally available to redress violations of . . . restrictive covenants [affecting real property] without proof of irreparable injury or a showing that a judgment for damages would be inadequate. The value of a restrictive covenant . . . is often difficult to quantify and may be impossible to replace." Autozone Stores, Inc. v. Ne. Plaza Venture, LLC, 934 So. 2d 670, 673 (Fla. 2d DCA 2006) (alteration in original) (quoting Restatement (Third) of Prop. § 8.3 cmt. b (Am. Law Inst. 2000)); see also Stephl v. Moore, 114 So. 455, 455-56 (Fla. 1927) (holding that no showing of irreparable injury is required when the injunction alleges a violation of a restrictive covenant). First, SHI must show that "a clear legal right has been violated." Legakis v. Loumpos, 40 So. 3d 901, 903 (Fla. 2d DCA 2010). Here, SHI has shown a violation of the Association's governing documents. According to the Association's governing 11 documents, SHI has a clear legal right to the vehicular easement and parking facilities located within the common elements, and indeed, the Association does not argue otherwise.5 It follows that SHI has a clear legal right to use the parking spaces located within the common area parking facility. These six parking spaces were designated for parking within the parking facilities—each parking space is paved, striped, and equipped with a parking bumper. And because of this clear legal right to use the parking spaces, the Association's President conceded at trial that an amendment of the governing documents was required to take away access to the common area parking facilities.6 The Association's President also conceded at trial that he had reviewed the governing documents prior to eliminating the six parking spots for the placement of the dumpster structure and that no amendment was made. This testimony was consistent with the parties' stipulation of facts and 5 The Association stipulated to many of the relevant facts related to this right. 6 Section XIII of the Amended Declaration provides the procedure for amendment that entails notice of the proposed amendment and a vote on the same, after a quorum and two-thirds vote of the majority unit owners or if agreed to by all unit owners. 12 the evidence presented at trial that the Association failed to post the required notice and obtain the approval for the construction of the dumpster structure. Next, SHI must establish that irreparable harm is threatened and that there is no adequate remedy at law. See Legakis, 40 So. 3d at 903. However, "[i]njunctive relief is normally available to redress violations of . . . restrictive covenants [affecting real property] without proof of irreparable injury or a showing that a judgment for damages would be inadequate." Autozone Stores, Inc., 934 So. 2d at 673 (alteration in original) (quoting Restatement (Third) of Prop. § 8.3 cmt. b (Am. Law Inst. 2000)). This is because "[t]he value of a restrictive covenant . . . is often difficult to quantify and may be impossible to replace." Id. SHI met its burden on each of the necessary requirements for a mandatory injunction: there is a clear legal right that the Association has violated; SHI has suffered irreparable harm as a result of the continued violation; and SHI has no adequate remedy at law in the face of this continuing violation of the Association's governing documents. Accordingly, SHI is entitled to injunctive relief. 13 III. While the Association has not argued on appeal that its actions in erecting the dumpster structure complied with the restrictive covenants of its governing documents, it does make two technical arguments in support of the trial court's final judgment: (1) SHI failed to plead an action for encroachment of the easement and (2) SHI is precluded from seeking an injunction based upon the law of the case from the denial of a preliminary injunction in the 2016 litigation. Neither of these defenses carry the day. We first address the Association's contention that SHI failed to plead and place the Association on notice of its claim that the dumpster structure encroached upon the vehicular easement and the common area parking facilities. We agree with SHI's argument that the Association neither raised any objection at trial when the Association's President was questioned at length about the easement, parking facilities, and common elements,7 nor did the Association, based upon the record before us, object to SHI's 7 The trial court noted in the final judgment that the injunctive relief claims in count III of the amended complaint "appeared to be the crux of the case/trial." 14 memoranda or written closing submissions to the trial court, both of which detailed the encroachment of the dumpster structure on the easement and parking facilities located within the common elements. Moreover, we note that the Association's contentions that it was later blindsided by SHI's claim to enforce the easement and common elements of the governing documents are belied by the record where the Association stipulated to these very issues. See Lotspeich Co. v. Neogard Corp., 416 So. 2d 1163, 1165 (Fla. 3d DCA 2008) (holding that a pretrial stipulation is "binding upon the parties and the court, and should be strictly enforced"); see also Paul Gottlieb & Co. v. Alps S. Corp., 985 So. 2d 1, 5 (Fla. 2d DCA 2007) (" 'An issue is tried by consent when there is no objection to the introduction of evidence on that issue unless the evidence is relevant to other, properly pled issues.' In the instant case, the parties raised the issue in trial briefs, introduced evidence relating to the issue during trial, and argued its merits during closing argument. At no point did Alps object to the introduction of this issue as being beyond the scope of the original pleadings.") (citation omitted) (quoting Book v. City of Winter Park, 718 So. 2d 945, 947 (Fla. 5th DCA 1998))). Accordingly, because the Association failed 15 to object when this uncontroverted evidence was introduced at trial, it is precluded from arguing on appeal that it lacked notice of the fact that SHI was alleging an encroachment onto the easement and the common area parking facility provided for in the governing documents. The Association also argues that in the 2016 litigation, the trial court ordered the installation of the dumpster structure and approved the placement of the structure in the current disputed location. In the prior litigation, the final judgment ordered the Association to construct an enclosure around the dumpster, which was then located in a grassy area. When the Association sought to relocate the dumpster to its present location for the purpose of complying with that final judgment, SHI filed an emergency motion for preliminary injunction. Pursuant to the December 28, 2018, order denying the emergency motion for preliminary injunction, the trial court found: (1) "that the parking spaces in questions are not for the sole benefit of [SHI]" and (2) that "[t]estimony shows that the dumpster enclosure is being placed in the only location both the City of Cape Coral and WastePro will approve." 16 This court has previously recognized that "the law of the case doctrine will not be employed to give preclusive effect to a decision or determination that was 'based on a less-than-full hearing.' " Klak v. Eagles' Rsrv. Homeowners' Ass'n, 862 So. 2d 947, 952 (Fla. 2d DCA 2004) (quoting Arch Se. Commc'ns, Inc. v. Abraham Commc'ns, Inc., 702 So. 2d 556, 558 (Fla. 2d DCA 1997)). In the 2016 litigation, SHI did not raise, and the trial court did not consider, whether the placement of the dumpster structure violated any restrictive covenant contained in the Association's governing documents. As such, the law of the case doctrine does not apply and the preliminary findings of the trial court in the prior litigation are of no consequence to this court's review. Moreover, contrary to the Association's claims, nothing in the final judgment of the prior litigation required the Association to move the then-existing dumpster, which was located on the grassy area, much less build an enclosure large enough for two dumpsters, which obstructs the common area parking facilities expressly provided for in the governing documents. The final judgment in the 2016 litigation requires only that the Association "construct an enclosure around the [existing single] dumpster and otherwise fully 17 comply with all applicable codes." Because the denial of the motion for preliminary injunction in the 2016 litigation was not based upon the fact that the new dumpster structure constitutes an obstruction of the common area parking facilities, the law of the case doctrine does not preclude SHI from obtaining an injunction to rectify this violation of the restrictive covenants in this case. IV. Accordingly, because SHI proved a violation of the Association's governing documents, the trial court erred in denying the motion for a mandatory injunction where SHI's clear legal right was violated. The final judgment denying the injunction is reversed and remanded for the trial court to enter an injunction in favor of SHI and against the Association for the immediate removal of the dumpster structure. Affirmed in part; reversed in part; remanded with instructions. SILBERMAN and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. 18