Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1434 _____________________________ JULIAN W. ROEBUCK, Appellant/Cross-Appellee, v. VERNON D. SILLS, III and SARA SILLS, Appellees/Cross-Appellants. _____________________________ On appeal from the Circuit Court for Okaloosa County. John Jay Gontarek, Judge. October 7, 2020 OSTERHAUS, J. Julian W. Roebuck sued his neighbors Vernon and Sara Sills over a noisy pool pump and annoying exterior lighting. Roebuck won at trial on his claims of common law nuisance. The Sillses, however, prevailed in defense of Roebuck’s claims that they had violated restrictive covenants set forth in homeowner association documents governing their community. The trial court didn’t award attorney’s fees and costs to either party. Roebuck appealed and the Sillses cross-appealed. Each argues that they should have prevailed across-the-board and been awarded their fees and costs. We affirm, except for reversing in favor of the Sillses on their claim for attorney’s fees and costs under § 720.305(1), Florida Statutes. I. Roebuck and the Sillses live next door to each other in an Okaloosa County community. At some point, the Sillses installed two variable speed pumps and a heater for their pool on the side of their house very close to Roebuck’s master bedroom window. The noise from this equipment disturbed Roebuck’s ability to sleep and enjoy his property. The Sillses also installed exterior lighting that disturbed Roebuck because it came on throughout the night. Roebuck complained to the Sillses, but the parties couldn’t resolve their issues. Roebuck ultimately filed a five-count complaint in circuit court alleging that the Sillses’ pool equipment and lighting created a common law nuisance and violated the governing Declaration of Covenants, Conditions, Restrictions and Easements (“Declaration”), which the homeowner association enforced. Roebuck sought injunctive relief and damages, as well as attorney’s fees and costs pursuant to § 720.305. The litigation proceeded to a four-day bench trial that ended with a split decision. On the common law nuisance claims, counts III and IV of the complaint, the court found Roebuck to be entitled to damages and injunctive relief. The court awarded Roebuck $10,280 to build a wall on his property to abate the noise and enjoined the Sillses from using their exterior lighting and pool equipment between the hours of 9:30 p.m. and 9:30 a.m., except for once a year when their pool could be acid washed for up to forty- eight continuous hours. On counts I, II, and V, the court ruled that the Sillses had not breached the restrictive covenants set forth in the Declaration and that the parties would be responsible for their own attorney’s fees and costs. II. The parties seek review of the trial court’s conclusions on the common law nuisance claims, the claims that the Sillses violated the restrictive covenants found in the Declaration, and each party’s claim for attorney’s fees and costs. 2 A. Taking the nuisance claims first, neighbors have a common law duty not to interfere with, or to render each other unsafe or insecure in life or in the use of their property. See Windward Marina, L.L.C. v. City of Destin, 743 So. 2d 635, 639 (Fla. 1st DCA 1999) (citing Prior v. White, 180 So. 347, 355 (Fla. 1938)). Ordinary disturbances and annoyances don’t typically give rise to actionable nuisance claims. See Clark v. Bluewater Key RV Ownership Park Prop. Owners Ass’n, 226 So. 3d 276, 283 (Fla. 3d DCA 2017) (citation omitted). But “noise can be a nuisance.” City of Jacksonville v. Schumann, 199 So. 2d 727, 729 (Fla. 1st DCA 1967) (involving low-flying aircraft); see also Clark, 226 So. 3d at 279 (commercial vehicle noise); Lake Hamilton Lakeshore Owners Ass’n v. Neidlinger, 182 So. 3d 738, 741 (Fla. 2d DCA 2015) (airboats); Saadeh v. Stanton Rowing Found. Inc., 912 So. 2d 28, 29, 31 (Fla. 1st DCA 2005) (recreational facility); Erwin v. Alvarez, 752 So. 2d 1261, 1262 (Fla. 2d DCA 2000) (chickens and roosters); Rae v. Flynn, 690 So. 2d 1341, 1343 (Fla. 3d DCA 1997) (barking dogs); Exxon Corp., U.S.A. v. Dunn, 474 So. 2d 1269, 1272 (Fla. 1st DCA 1985) (industrial-plant noise and vibrations); Davis v. Levin, 138 So. 2d 351, 352 (Fla. 3d DCA 1962) (air conditioning equipment). “An adjoining property owner cannot maintain a . . . nuisance on his property which is injurious to the . . . property rights of an adjacent landowner and not be answerable [for it].” McClosky v. Martin, 56 So. 2d 916, 918 (Fla. 1951). There is “no exact rule or formula” for deciding when a neighbor’s noise rises to the level at which a court will grant relief. See Rae, 690 So. 2d at 1343. Rather, courts evaluate nuisance actions by considering the “reasonableness of the use, ‘as such use affects the . . . private rights of others . . . [as] determined from the facts and circumstances of particular cases.’” Saadeh, 912 So. 2d at 32 (quoting Cason v. Fla. Power Co., 76 So. 535, 536 (Fla. 1917)). The application of common law nuisance standards mostly “presents an evidentiary issue” where a factfinder’s conclusions must be supported by competent, substantial evidence. See Clark, 226 So. 3d at 283. In this case, the trial court held a four-day bench trial on Roebuck’s claims. The parties haven’t supplied a trial transcript, 3 so we don’t know the ins and outs of the evidence. The final judgment doesn’t detail much about the evidence, but it indicates that various fact and expert witnesses participated at trial. According to the final judgment, Roebuck asserted nuisance- related harms backed by evidence showing as follows: Defendants maintain pool equipment on their property which is located twelve to fourteen feet away from the Plaintiff’s master bedroom window. Defendants’ operation of their pool equipment, which consists of two variable speed pumps and a pool heater, prevents the full use and enjoyment of the Plaintiff’s master suite and the outdoor lanai area. Plaintiff has had to adjust his sleeping schedule and/or relocate to other areas of his home to sleep, approximately two to three times per week since installation of the equipment and cannot enjoy many of the outdoor activities that he once did. Plaintiff has suffered damages as a result of this nuisance, including diminution in value of Plaintiff’s property, discomfort, inconvenience, and annoyance, and is entitled to injunctive relief for the same. In addition, the final judgment says that Roebuck presented testimony that the Sillses’ outdoor lighting would come on outside his bedroom window at all hours of the night. On these claims, the court entered judgment for Roebuck, awarding him damages to compensate for construction of a wall and injunctive relief to abate the noise- and light-related nuisances. On this record, we don’t see a basis for reversing the final judgment on the nuisance claims. From what we can tell in the final judgment, the trial court appropriately weighed the important property interests of both parties—the Sills’ right to exercise dominion on their property by operating their pool, versus Roebuck’s right not to have his property invaded by injurious noise and annoying lights. But we don’t know all the evidentiary details from the trial. Our review is hamstrung by the lack of a transcript, similar to the situation faced by the Florida Supreme Court in McClosky. See McClosky, 56 So. 2d at 918. And “[n]ot having been favored with a transcript of the testimony taken in the lower court, we must of necessity assume that the essential allegations of 4 [nuisance counts III and IV] were proved by competent testimony.” See id. Along this same line, we cannot say that the trial court got the remedy on the nuisance claims wrong. In his complaint, Roebuck sought “the prospective cost to erect a wall to minimize the nuisance,” as well as an injunction to abate the nuisance and “such further relief as the Court deems fair and equitable.” Depending on the facts shown at trial, either or both injunctive relief and damages were available to abate the nuisance and mitigate the harmful effects of the noisome pool pump running during the day. See McIntosh v. Myers, 271 So. 3d 159, 161 (Fla. 1st DCA 2019) (recognizing that “courts have the fullest liberty in molding decrees to the necessity of the action” in equitable proceedings) (quoting Circle Fin. Co. v. Peacock, 399 So. 2d 81, 84 (Fla. 1st DCA 1981)); Maday’s Wholesale Greenhouses, Inc. v. Indigo Grp., Inc., 692 So. 2d 207, 208, 210 (Fla. 5th DCA 1997) (allowing a property owner’s nuisance action against city for injunctive relief and related damages to proceed); Rae, 690 So. 2d at 1342 (affirming the entry of a permanent injunction to address a barking-dog problem as the “remedy to accomplish the reduction of neighborhood hostilities by the least restrictive means”); Porter v. Saddlebrook Resorts, Inc., 596 So. 2d 472, 474–75 (Fla. 2d DCA 1992) (upholding injunctive order in a nuisance action but reversing and remanding for a new trial and concluding that “if the nuisance were abatable, and thus not permanent, the jury was entitled to consider the [plaintiffs’] claimed diminution in the use value of their land and any resultant special damages such as loss of crops”); Burnett v. Rushton, 52 So. 2d 645, 645–46 (Fla. 1951) (upholding an award of injunctive relief and damages for private nuisance of neighbor who operated lawn mower in a noisy manner at an early morning hour close to plaintiff’s bedroom, operated radio in a loud tone at various times of day and night, annoyed plaintiff by causing an electric light to be focused on plaintiff’s residence at all times of night, and incited dog to bark boisterously and annoy plaintiff); Mercer v. Keynton, 163 So. 411, 414 (Fla. 1935) (noting the rule that “equitable and purely legal demands cannot be joined in the same equity suit” but that a legal demand incidental to equitable relief that is averred and proven along with the equitable demand may be determined in a court of equity); cf. 5 § 720.305(1), Fla. Stat. (allowing “[a]ctions at law or in equity, or both,” to redress failures to comply with restrictive covenants). The trial court crafted the remedy in this case with notable precision. For instance, the final judgment restricts operation of the pool equipment to specific hours each day. It also allows the Sillses to run their equipment for purposes of acid washing the pool for a forty-eight-hour period, once a year. The judgment sets similar time strictures regarding the exterior lighting issue, but it applies them only with respect to the lights adjacent to Roebuck’s house. All told, we see no evidentiary basis for concluding that the relief granted by the trial court was too broad, duplicative, or otherwise erroneous for purposes of abating the noise- and light- related nuisances found at trial. B. The second issue involves Homeowners’ Association Act- related allegations in counts I and II of Roebuck’s complaint. Roebuck alleged that the Sillses violated the restrictive covenants set forth in the Declaration governing their community. Section 720.305(1)(b), Florida Statutes, allows association members to sue other members “at law or in equity, or both,” to redress failures to comply with the governing documents of a community. See McIntosh, 271 So. 3d at 161 (noting that the provision allows both legal and equitable relief, without limitation, to enforce covenants). Review and interpretation of the Declaration’s language is de novo. See Leamer v. White, 156 So. 3d 567, 571 (Fla. 1st DCA 2015). Restrictive covenants are interpreted according to the “clear and ordinary meaning” of their terms, see id. at 572, and in favor of the free use of real property, see Washingtonian Apartment Hotel Co. v. Schneider, 75 So. 2d 907, 908 (Fla. 1954). Any ambiguities are construed in favor of the property owner and against those attempting to enforce the covenant. See Spey v. Hayes, 406 So. 2d 1176, 1178 (Fla. 1st DCA 1981) (citing Washingtonian Apartment Hotel Co., 75 So. 2d at 908). Roebuck’s claim regarding violation of the Declaration almost entirely addressed the Sillses’ failure to fully comply with the 6 architectural review board (“ARB”) process for approval of their plans to install the pump and lighting. Related to this claim, Roebuck asserted that the Sillses violated the Declaration by installing a nuisance in violation of section 7.4 of the Declaration, which provides: Nothing shall be done or maintained on any Lot or Common Property which may be or become an annoyance or nuisance to any other Lot in the vicinity thereof or to its occupants, or to the Common Property. The Declaration doesn’t define what is meant by an “annoyance or nuisance” in the community. Rather, it empowers the Board of Directors alone to resolve community nuisance- related disputes. See id. (“In the event of a dispute or question as to what may be or become a nuisance, such dispute or question shall be submitted to the Board of Directors and the written decision of the Board of Directors shall be dispositive of such dispute or question.”); see also id. at § 6.4(b) (providing that “any party aggrieved by a decision of the ARB shall have the right to make a written request to the Board of Directors,” and that the Board’s determination “upon reviewing any such decision shall be final”); cf. id. at § 7.8 (“Upon written request of any Owner, the Board of Directors may conclusively determine at its sole discretion, in accordance with its rules . . . whether an animal is a nuisance.”); id. at § 13.5(c) (“No activity shall be permitted on any Water Resources which may become an annoyance or nuisance to the adjacent property and the Owners thereof. The Association’s determination whether any activity constitutes an annoyance or nuisance shall be dispositive[.]”). The record in this appeal doesn’t indicate that Roebuck availed himself of the Declaration’s means of addressing community nuisance and ARB questions. Evidently, he did not seek or obtain a written decision from the Board of Directors as to the Sillses’ pool equipment and lights. In turn, we don’t know from the record how the Board defines or applies the Declaration’s nuisance or ARB standards to situations like the one here. What we do know is that the trial court found the Sillses to have complied with the design review process set forth in the community’s governing documents. We also have the trial court’s 7 conclusion that the substantial weight of the evidence didn’t support a finding that the Sillses breached the Declaration. In the absence of a decision by the Board on the nuisance issue or being able to evaluate the relative strengths or shortcomings of the trial evidence on this issue, we see no basis for reversing the trial court’s decision in the Sills’ favor on counts I and II. Contrary to Roebuck’s argument, we cannot simply assume that Declaration- and common law-nuisance standards are the same. Different legal regimes can address nuisance issues differently. See, e.g., Saadeh, 912 So. 2d at 32 (noting that ordinance compliance doesn’t, in and of itself, absolve a property owner from nuisance claims); Neidlinger, 182 So. 3d at 741 (recognizing that “airboat activity . . . may constitute a judicially recognized nuisance even if such activity is authorized by statute, regulation, or ordinance”). We therefore affirm the trial court’s decisions on counts I and II. C. The final issue appealed by the parties involves attorney’s fees and costs. “Attorney’s fees may be awarded only if there is a contractual or statutory basis for such an award . . . .” Underwood v. Columbia County, 868 So. 2d 1225, 1227 (Fla. 1st DCA 2004). Both sides ask us to reverse the judgment below that awarded no prevailing-party attorney’s fees under either the Declaration or § 720.305(1). The parties’ Declaration-based arguments are more easily addressed. The Declaration only provides for the Association to be awarded fees and costs: All attorneys’ fees and court costs which may be incurred by the Association in the enforcement of any of the provisions of this Declaration, regardless of whether such enforcement requires judicial action, shall be assessed against and collectible from the Owner against whom such action was taken and shall be a lien against such Owner’s Parcel in favor of the Association. 8 Decl. § 14.10 (emphasis added). The Declaration doesn’t authorize homeowners to collect from other homeowners. And so, the Declaration gives neither Roebuck, nor the Sills, a means of recovering their fees and costs. The Homeowners’ Association Act, however, includes a prevailing-party fee provision entitling “[t]he prevailing party in any such litigation . . . to recover reasonable attorney fees and costs.” § 720.305(1), Fla. Stat. To be clear, we read Roebuck’s common law nuisance claims and his Declaration-based claims to travel under different and distinct theories, with the Declaration- based claims asserting primarily that the Sillses failed to comply with the ARB requirements for getting the pump and lighting installation properly approved. Since Roebuck lost his Declaration- related claims, prevailing instead only on his common law nuisance claims, he lacks a statutory basis for recovering fees and costs. But the Sillses argue a strong case for fees and costs because they prevailed against Roebuck’s §720.305(1)-related claims. The trial court made no award under this section because it considered each party to have partly prevailed in the case. But the fee and cost provision in § 720.305(1) more particularly refers to prevailing in “such litigation”; or, in other words, prevailing in the sort of Homeowners’ Association Act-based litigation described by the statute, involving the governing documents of a community. The Sillses did so. A similar situation occurred in Olson v. Pickett Downs Unit IV Homeowner’s Ass’n, 205 So. 3d 869 (Fla. 5th DCA 2016). In Olson, a homeowner’s association filed a four-count complaint against a homeowner alleging nuisance claims and violations of restrictive covenants. Id. at 870–71. The trial court entered a split decision that, like here, favored the defendant-homeowner on the Act-based claims, but without awarding fees and costs. See id. at 871. The Fifth District reversed and held that the homeowner was entitled to attorney’s fees under § 720.305(1) as to the Act-based counts on which he prevailed. Id. at 871-72; see also Grand Oaks Homeowners’ Ass’n v. Leonpacher, 8 So. 3d 381 (Fla. 1st DCA 2009) (reversing in favor of the prevailing-party homeowners who were “entitled to receive fees”). Like the defendant-homeowner in Olson, the Sillses prevailed in the Act-based litigation and are thus 9 entitled to recover reasonable attorney’s fees and costs for counts, I, II, and V. III. Accordingly, we affirm the final judgment, except as to the Sillses’ claims for attorney’s fees and costs for counts, I, II, and V pursuant to § 720.305(1). We therefore remand so that the trial court can determine the amount to which the Sillses are entitled for prevailing on those counts. AFFIRMED in part, REVERSED in part, and REMANDED. JAY and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Justin I. Remol and John K. Reed of Remol Reed, P.A., Destin, for Appellant/Cross-Appellee. William L. Ketchersid and David L. Powell of Ward & Ketchersid, P.A., Destin, for Appellees/Cross-Appellants. 10