GERALD GIVOGUE AND MARY BURLIUK HOLT

v.

LIGHTHOUSE BAY CONDOMINIUM ASSOCIATION, INC., ET AL

WARNER, J.

Appellants, owners of a condominium unit, challenge a final permanent injunction in favor of appellee, the condominium association. We reverse, concluding that the hearing for the final permanent injunction was procedurally improper and failed to give notice that the hearing was a final hearing on the complaint.

The association filed suit for a permanent injunction against appellants. In the complaint, the association alleged that appellants were using a storage closet located under the stairwell next to their unit, which was a common element of the condominium, as their personal possession. According to the complaint, the appellants had installed a washer, dryer, and water heater in the storage closet. The association sought an injunction to require appellants to remove their appliances. Appellants answered, alleging various affirmative defenses, including laches, unclean hands, estoppel, waiver, and third-party liability. They alleged that the storage closet had been used for the appliances by the unit’s prior owners

“for decades.” They also brought counterclaims against the association including a claim for tortious interference with a business relationship, because the association refused to approve appellants’ sale of the unit until the appliances were removed. Appellants filed third-party claims against the association’s president and property manager as well, and demanded a jury trial.

In June 2022, the association filed a motion for permanent injunction. We have reviewed that motion, and we agree with appellants’ contention that it reads like a motion for summary judgment. Three days after the association filed its motion, the trial court set the entire case for a jury trial in May 2023.

In emails during July and August 2022, counsel for the parties agreed to one hour as the time needed for the hearing on appellee’s motion. However, appellants’ counsel did not agree to the motion being heard at an evidentiary hearing, as the motion was simply a motion for summary judgment. The motion was set for a hearing on December 8, 2022.

The week before the hearing, the association served nineteen exhibits which it intended to use at the hearing. Appellants filed an objection to the hearing, arguing that the association’s motion for a permanent injunction was in effect a motion for summary judgment, for which supporting documents had to be filed twenty days prior to the hearing. Appellants also argued that the association should be precluded from calling witnesses because witness testimony would be inappropriate at a summary judgment hearing. They contended that the motion was procedurally improper, because it requested the ultimate relief sought in the complaint and was a “disguised motion for summary judgment.” They pointed out that the motion did not address all their affirmative defenses, and summary judgment would be inappropriate as disputed issues of fact remained. According to appellants, the association could not seek a permanent injunction without setting a full hearing (i.e., a trial) on the merits of the case.

At the hearing, over appellants’ objection, the trial court took testimony from the association’s property manager. While maintaining the appellants’ procedural objection, appellant Givogue testified that the appliances were in the closet when he and appellant Holt purchased the unit in 2014. They were asked to remove the appliances in 2017, allegedly in retaliation for appellants asking a tenant, who was a friend of the association’s president, to leave.

The trial court rejected the appellants’ procedural objections, stating that the matter had been set as an evidentiary hearing. In granting the permanent injunction, the court agreed with the association that the closet was a common element of which the appellants had improperly seized exclusive control. The court did not address appellants’ affirmative defenses or counterclaims, but reserved jurisdiction to assess attorney’s fees. Appellants appeal the entry of the permanent injunction.

“Procedural due process requires both fair notice and a real opportunity to be heard . . . ‘at a meaningful time and in a meaningful manner.’” Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So. 2d 940, 948 (Fla. 2001) (internal citation omitted) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). The level of procedural due process required in a particular proceeding depends on the circumstances and the interests at stake. Dep’t of Law Enf’t v. Real Prop., 588 So. 2d 957, 960 (Fla. 1991).

In this case, we agree with appellants that they did not have adequate notice that the association was seeking a trial on the merits of the permanent injunction, which is what essentially occurred. Nor should they have suspected the same because the trial court had set the entire matter for trial months later. Finally, we would note that setting a merits trial is controlled by Florida Rule of Civil Procedure 1.440. The court, not the parties, sends an order setting the case for trial. Fla. R. Civ. P. 1.440(c). As is true with most orders setting trial, the order in this case required the exchange of witness and exhibit lists well in advance of trial. By filing this motion for permanent injunction, the association avoided these necessary requirements, yet the court treated the hearing on the motion as a trial on the merits. Litigants are entitled to rely on the rules and trial court procedures for the conduct of trials. Allowing trial by “motion” defeats the purpose of those rules and procedures.

For the foregoing reasons, we reverse the permanent injunction and remand for further proceedings.

Reversed and remanded.

MAY and KUNTZ, JJ., concur.