FRANK F. FEROLA AND VERA FEROLA, APPELLANTS,
v.
BLUE REEF HOLDING CORP., INC., JOSEPH F. COYNE, INDIVIDUALLY AND AS TRUSTEE OF SATURN REALTY TRUST, A MASSACHUSETTS BUSINESS TRUST, FRANK L. VIOLA, ANTHONY M. VIOLA, JAGUAR CONSTRUCTION COMPANY, INC., JUPITER KEY ASSOCIATION, INC., HAYMARKET COOPERATIVE BANK, AND THE TOWN OF JUPITER, APPELLEES
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Property owners Frank and Vera Ferola challenged the trial court's dismissal of their complaint against a developer for violating deed restrictions by constructing townhouses on a designated recreation area. The court affirmed dismissal of the injunctive relief claim as barred by the statute of limitations but reversed the dismissal of the damages claim, holding that collateral estoppel did not apply because the Ferolas were not parties to the prior settlement agreement.
The court held that the claim for injunctive relief was properly dismissed as barred by the one-year statute of limitations for specific performance. However, the damages claim was improperly dismissed based on collateral estoppel because identity of parties is a required element of collateral estoppel, and the Ferolas were not parties to the prior lawsuit or settlement.
[1] A claim for injunctive relief to enforce covenants and restrictions may be barred by the statute of limitations applicable to specific performance if the allegations demo…
[2] Collateral estoppel requires an identity of parties between the prior and subsequent actions.
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Join FLexlaw to unlock all legal intelligence“Because identity of parties is one of the elements of collateral estoppel, see Department of Health and Rehabilitative Servs. v. B.J.M., 656 So.2d 906, 910 (Fla.1995), this suit is not barred by that principle.”
Establishes that the Ferolas cannot be bound by collateral estoppel from the prior Blue Reef lawsuit because they were not parties to it.
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Join FLexlaw to unlock all legal intelligenceThe Ferolas owned a lot in a development and sued Saturn Realty Trust (the developer) and others, alleging violations of the declaration of covenants …
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PER CURIAM.
We withdraw our opinion issued September 2,1998 and substitute the following:
The Ferolas, owners of a lot in a development, filed this lawsuit against the developer, appellee Saturn Realty Trust, and others. The Ferolas alleged that Saturn, as developer, violated the declaration of covenants and restrictions by constructing townhouses on a designated recreation area, faffing to provide amenities for the recreation area, and faffing to maintain common areas. The Ferolas sought injunctive relief in count I and damages in count II.
The trial court dismissed count I of the Ferolas’ complaint with prejudice, concluding that the Ferolas’ claim for injunctive relief was a claim for specific performance of a contract, and that the allegations of the complaint demonstrated that the one year statute of limitations period for specific performance barred the action. See § 95.11(5)(a), Fla. Stat. (1995). We agree and affirm the dismissal of count I.
The trial court dismissed count II, seeking damages, on the basis of collateral estoppel. The trial court’s application of collateral estoppel was premised on the fact that another lot owner, Blue Reef Holding Corp., had previously filed a lawsuit containing the same allegations. In connection with that action, Blue Reef had entered into a settlement pursuant to which the developer paid a substantial amount of money to Blue Reef. The Ferolas were not parties to that lawsuit. Because identity of parties is one of the elements of collateral estoppel, see Department of Health and Rehabilitative Servs. v. B.J.M., 656 So. 2d 906, 910 (Fla.1995), this suit is not barred by that principle.
Nor can we agree with Saturn’s argument that the prior lawsuit was a derivative action by the property owner’s association. A derivative action is brought “in the right of a corporation,” and requires service of a demand to take action on the board of directors. § 607.07401(2), Fla. Stat. (1997). The prior suit did not comply with those requirements. Nor did the settlement accrue to the benefit of anyone other than Blue Reef and few other lot owners. Even if the association, a not-for-profit corporation, could bring a derivative action1, the prior lawsuit bore no resemblance to one.
We affirm the dismissal of count I, reverse the dismissal of count II, and remand for further proceedings consistent with this opinion.
WARNER, KLEIN and TAYLOR, JJ., concur. . The only statute which permits shareholder derivative actions is section 607.07401, Florida Statutes (1997), part of the Florida Business Corporation Act, chapter 607, dealing with for-profit corporations. Chapter 617, Florida Statutes (1997), dealing with not-for-profit corporations such as this homeowner's association, does not provide for derivative actions, and Chapter 607 does not apply to non-profit corporations. See § 617.1908, Fla. Stat. (1997).
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Sheoah Highlands, Inc. v. Daugherty, 837 So. 2d 579 (Fla. 5th DCA 2003)…al property shall be commenced as follows: (2) Within five years.— (b) A legal or equitable action on a contract.... (5) Within one year.— (a) An action for specific performance of a contract. Relying on Ferola v. Blue Reef Holding Corp., Inc., 719 So. 2d 389 (Fla. 4th DCA 1998), the Association argues that Daugherty’s claim for injunctive relief was substantively a claim for specific performance of the declaration of condominium, and, as a result, the action was barred by the one-year statute of limitat…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dep't of Health & Rehabilitative Servs. v. B.J.M., 656 So. 2d 906 (Fla. 1995)