IVETTE SMULDERS for 129-31 HARRISON STREET, LLC and JOHN E. MURPHY, Appellants,
THIRTY-THREE SIXTY CONDOMINIUM ASSOCIATION, INC., Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Joseph Marx, Judge; L.T. Case No.
S. Kashi of Joseph S. Kashi, P.A., Plantation, and Anthony J.
Titone of Law Office of Anthony J. Titone, P.A., Coral
Springs, for appellants.
Kathryn L. Ender and Maria D. Vera of Cole, Scott &
Kissane, P.A., Miami, for appellee. Gross, J.
circuit court determined that this case was moot because it
could not grant relief if the plaintiffs prevailed. We
reverse because we hold that, if appellants prove that a
violation of the declaration of condominium occurred, the
issue of their entitlement to a refund of a special
Ivette Smulders and John Murphy own units in the condominium
operated by the Thirty-Three Sixty Condominium Association,
Inc. They brought suit for injunctive and declaratory relief
to challenge the Board of Directors' approval of a
special assessment of $350, 000 for maintenance and
renovation of condominium lobbies, contending that the Board
had acted contrary to the declaration of condominium.
Because the Association had commenced the renovation project,
appellants sought a temporary injunction to halt the project.
The circuit court denied temporary relief. After this ruling,
appellants apparently paid the assessment, a prudent act that
avoided a lien foreclosure lawsuit under section 718.116,
Florida Statutes (2017).
sides moved for summary judgment. One of the
Association's grounds was that, as of the date of the
motion, the project had been completed and all unit owners,
including appellants, had paid their share of the special
assessment. Thus, the Association argued that there was
"no bona fide, actual, present need for a declaration as
prayed for in [appellants'] Amended Complaint." The
Association further argued that "the scant ultimate
facts alleged by [appellants] in support of their claim
regarding an alleged 'bona fide adverse interest between
the parties concerning a power, privilege, immunity or right
of the [appellants]' have been rendered moot by
appellants' admissions that they have 'paid the
summary judgment hearing, the trial court opined that the
issue was moot, asking the parties:
THE COURT: What are you going to ask me [to] enjoin? The
project that you're disputing has been completed,
APPELLANTS: Well, it has, and we tried to stop it.
judge then asked if appellants wanted him to have the
Association rip out the renovations, to which appellants'
counsel responded in part:
Well, I think there should be some affirmative injunctive
relief that the Court can frame to at the very least, these
gentlemen are entitled to their assessments back, okay,
because they're paying for an illegal undertaking and I
think the court in its power, something that the court can
consider, that they restore the lobby as much as possible to
the way they were before.
trial court again stated, "I don't think there's
anything to enjoin right now. It's over." Concerning