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Alorda v. Sutton Place Homeowners Ass'n, Inc.

Florida Court of Appeal, Second District

January 6, 2012

Robert ALORDA and Danielle Alorda-McKinnon, Appellants,

Rehearing Denied Feb. 15, 2012.

Page 1078

Michael V. Laurato of Austin & Laurato, P.A., Tampa, for Appellants.

Francis E. Friscia and George D. Root, III, of Meirose & Friscia, P.A., Tampa, for Appellee.

DAVIS, Judge.

Robert Alorda and his daughter, Danielle Alorda-McKinnon (the Alordas), challenge the trial court's final judgment awarding attorney's fees and costs to Sutton Place Homeowners Association, Inc., in conjunction with the Association's action for injunctive relief against the Alordas. In its order, the trial court found that the Association had prevailed in that action and thus awarded it attorney's fees. However, because the Association could not be the prevailing party in an action seeking an equitable remedy when a remedy at law was available, we reverse.

The Alordas purchased a townhouse located in the Sutton Place subdivision on June 29, 2007.[1] The subdivision is subject to the Declarations of Covenants, Conditions, Restrictions, and Easements filed in the public records of Hillsborough County. Section 9.04 of the Declarations requires that the owner of a residence in the subdivision maintain insurance on the residential property and annually provide notice of such coverage to the Association. Specifically, the provision states that at the time of purchase the owner must provide proof of such coverage and that on the purchase anniversary date each year, the owner must provide proof that such coverage has been renewed.

In June 2008, upon the first anniversary of the Alordas' purchase, the Association did not receive any notice that the Alordas had renewed their insurance coverage. The Association therefore began to send them letters advising of the need to provide the required proof. The record indicates that letters were sent in May, July, and August of 2008. In September 2008, the Association sent its offer to engage in

Page 1079

presuit mediation regarding the coverage issue. Although Mr. Alorda did agree at that time to provide the proof of coverage, he continued to fail to do so. This prompted a letter from the Association requesting his compliance with the prior agreement. When that did not resolve the matter, the Association tried one last time to obtain the proof of coverage by letter dated March 9, 2009.

When these efforts failed, the Association filed its complaint against the Alordas on April 9, 2009. By the complaint, the Association sought the equitable remedy of injunctive relief, specifically asking the trial court to " enter a permanent mandatory injunction requiring that the Defendant obtain the insurance coverages as are described in ยง 9.04 of the Declaration." In response to the service of that suit, the Alordas' attorney sent the Association's attorney an email on May 6, 2009, advising that the Alordas did have the required coverage. Attached to the email was a copy of the declaration pages of the Alordas' insurance policy, showing that it went into effect March 19, 2009. Counsel for the Alordas also asked if the Association would dismiss its action " so that additional attorney time will not be expended on an appropriate response."

After the Alordas did not receive a favorable response to their attorney's email suggestion, they filed a motion to dismiss on May 11, 2009. In the motion, the Alordas suggested that the Association had failed to plead sufficient facts to establish the needed elements for the trial court to enter an injunction. Specifically, the Alordas argued that although a clear legal right had been violated, the Association had failed to sufficiently establish that it lacked an adequate remedy at law to justify injunctive relief.

In the memorandum of law attached to the motion, the Alordas maintained that the Association's adequate legal remedy was expressed by the terms of the Declarations attached to the Association's complaint. The memorandum quoted section 9.04 of the Declarations as follows:

The owner shall furnish proof of such insurance to the Association at the time of purchase of a lot and shall furnish proof of renewal of such insurance on each anniversary date thereof. If the owner fails to provide such insurance the Association may obtain such insurance and shall assess the owner for ...

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