final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael L. Gates, Judge; L.T. Case No.
D. Garrity of Garrity Traina, PLLC, Coconut Creek, for
Fields of Kopelowitz Ostrow, P.A., Fort Lauderdale, for
Key Homeowner's Association, Inc. ("the
Association"), as the appellant/cross-appellee, seeks
review of an order imposing a mandatory injunction against
it. Gonzalez, as appellee/cross-appellant, appeals the denial
of her request for attorney's fees and costs.
Accordingly, there are two issues presented in this appeal
and cross-appeal. First, whether the trial court erred in
issuing the injunction against the Association. Second,
whether Gonzalez prevailed in the underlying action for
purposes of an award of attorney's fees when the jury
found that the Association breached a contract, but awarded
no damages to Gonzalez. We affirm as to the entry of the
injunction, and also find that Gonzalez was the prevailing
party for purposes of awarding both attorney's fees and
filed a complaint against the Association. Under count one,
"Breach of Governing Documents, " Gonzalez alleged
that the Association had "breached, and continue[d] to
breach the Governing Documents by failing to properly manage
the surface water management system, " which caused her
property to consistently flood when it rained, and led to
significant damage to her home. She sought monetary damages for
the breach. Under count two, "Injunction, "
Gonzalez alleged that the Association failed to address the
issue of the existence of several unauthorized wood decks and
other alterations on other properties, and failed to rectify
the chronic flooding problems arising in her own backyard
area; consequently, she sought enforcement of the various
applicable covenants and restrictions in the
Association's governing documents.
their joint pretrial stipulation, both parties agreed on the
underlying issue in the case:
This case involves [the Association]'s alleged violation
of its [governing documents]. Defendant is a duly formed
homeowners association, of which [Gonzalez] is a resident
member. In this action, it is alleged by [Gonzalez]
that the [Association] has failed to comply with the
[A]ssociation's governing documents by failing to
properly maintain the surface water management system behind
her residence which has resulted in a flooding problem.
[Gonzalez] seeks an injunction requiring the Association to
cure the alleged surface water management violations and stop
the flooding problem.
trial on these issues, the jury found that the Association
breached its governing documents by failing to maintain and
operate the surface water management system on Gonzalez's
property, but that the breach was not a legal cause of damage
to Gonzalez. As a result, Gonzalez was awarded no monetary
damages on count one.
trial court conducted a post-trial hearing on whether to
issue an injunction against the Association pursuant to count
two. After the hearing, it granted Gonzalez's motion for
entry of a mandatory injunction. The court's decision was
in accord with the jury's finding that the Association
violated clear legal rights in its governing documents, which
caused Gonzalez irreparable harm without an adequate remedy
under the law.
Gonzalez then filed a motion for attorney's fees and
costs pursuant to section 720.305(1), Florida Statutes
(2008). Following a hearing, the trial court denied
Gonzalez's motion for attorney's fees and costs.
Gonzalez timely appealed the denial of fees and costs, and
the Association timely appealed the entry of the injunction.
Issuance of the injunction
order imposing a permanent injunction lies within the sound
discretion of the trial court and will be affirmed absent a
showing of abuse of discretion.'" Smith v. Coal.
to Reduce Class Size, 827 So.2d 959, 961 (Fla. 2002)
(quoting Operation Rescue v. Women's Health Ctr.,
Inc., 626 So.2d 664, 670 (Fla. 1993)). Gonzalez sought a
mandatory injunction to command specific conduct,
specifically compliance with governing documents. "In
order to establish entitlement to a mandatory injunction
there must be a clear legal right which has been violated,
irreparable harm must be threatened, and there ...