VME GROUP INTERNATIONAL, LLC, ET AL.,

v.

THE GRAND CONDOMINIUM ASSOCIATION, INC., ET AL.,

Third District Court of Appeal State of Florida

Opinion filed September 25, 2019. Not final until disposition of timely filed motion for rehearing.

No. 3D19-139 Lower Tribunal No. 17-25120

VME Group International, LLC, a Florida limited liability company, Omni Property Management, LLC, a Florida limited liability company, Appellants,

vs.

The Grand Condominium Association, Inc., a Florida corporation, Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Bronwyn C. Miller, Judge.

Diaz Reus & Targ, LLP, and Brant C. Hadaway, Gary E. Davidson, Alexandre Ballerini, and Ravika Rameshwar, for appellants.

Cole, Scott & Kissane, P.A., and Melinda S. Thornton, for appellee.

Before SCALES, HENDON, and LOBREE, JJ.

HENDON, J.

VME Group International, LLC, and Omni Property Management, LLC, (collectively, "VME”), seek to reverse the trial court's denial of their motion for temporary injunction against The Grand Condominium Association, Inc. Fla. R. App. P. 9.130(a)(3)(B). The abuse of discretion standard generally applies to the appeal of orders that grant or deny temporary injunctions. Telemundo Media, LLC v. Mintz, 194 So. 3d 434, 435 (Fla. 3d DCA 2016).

To obtain a temporary injunction, VME had to satisfy the following five-part test: (1) the substantial likelihood of success on the merits, (2) the likelihood of irreparable harm, (3) the unavailability of an adequate remedy at law, (4) the threatened injury outweighs the possible harm, and (5) the issuance of the temporary injunction will not disserve the public interest. See Mintz, 194 So. 3d at 436. If a party seeking relief fails to meet any of these requirements, the motion must be denied. Genchi v. Lower Fla. Keys Hosp. Dist., 45 So. 3d 915, 919 (Fla. 3d DCA 2010). The order on appeal sets forth the operative facts and the correct legal conclusions necessary to support an affirmance in this case. We need not summarize the order; we reproduce it in full below:

ORDER ON PLAINTIFFS' RENEWED VERIFIED AMENDED

MOTION FOR TEMPORARY INJUNCTION

THIS CAUSE having come before the Court on Plaintiffs' Renewed Verified Amended Motion for Temporary Injunction, the Court, having

considered the evidence presented, procedural history, argument of counsel and parties, all memoranda, and all relevant legal authority, hereby ORDERS and ADJUDGES as follows:

Background:

Petitioners, VME Group International, LLC, Omni Property Management, LLC, and Global Grand Management, Inc., have filed the instant motion seeking a temporary injunction against Respondent, the Grand Condominium Association, Inc. Petitioners seek to enjoin the Association from "enforcing any rules or policies that are not equally applicable to all Members and uniform in their application and effect . .." Injunction at 19. Specifically, Petitioners seek to enjoin the enforcement of the First Short-Term Rental Policy, the 72-hour registration rule, the Parking Garage Regulations, The Resolution Directing Implementation of Change in Security Protocol and Procedures, and the Hurricane Windows Assessment.

The Supreme Court described the Grand Condominium in the following manner: Organized in 1986, The Grand Condominium is a mixed-use condominium comprising 810 residential units, 259 commercial units, and 141 retail units. The Grand's articles of incorporation, declaration of condominium, and bylaws provide for a seven-member board of directors governing the association, with two members each elected by the residential unit owners, the commercial unit owners, and the retail unit owners, and the seventh member elected at-large. Cohn v. Grand Condominium Ass’n. Inc., 62 So. 3d 1120, 1121 (Fla. 2011).

An explosion in the short-tern rental market, arising out of the popularity and accessibility of Airbnb has presented the Grand's Condominium Association with numerous challenges relating to regulation and security. At the same time, the Association has embarked on a multi-million dollar project to install hurricane impact windows in all units. Plaintiffs owns units at the Grand, but VME and Omni currently have active subleases on all of their units. In 2017, the Association adopted a Policy Concerning Short Term Rentals and Registration of Persons. Entities Engaged in Short Term Rental. This policy has since been rescinded.

Subsequently, the Association created Parking Garage Regulations, requiring all short-term renters desiring to use the parking

garage to obtain a parking transponder for a $50.00 fee. Alternative parking in an adjacent garage and at the valet is also available and offered by a separate entity. Hotel guests are exempt from the transponder requirement. The Association also expressed occupancy limits dependent upon the number of bedrooms within any given unit. The Hotel is not affected by the occupancy requirements. The Association requires access to the Condominium to be controlled by fingerprint or bracelet. Again, the Hotel is exempted.

Finally, citing past catastrophic hurricane damage and an impending 40-year recertification, the Association implemented a requirement that all units replace non-hurricane impact windows with hurricane-impact windows Obviously, units already having impact glass were excluded. Those residents who were unable to pay the assessment up front were offered financing plan with approximately four percent interest. Petitioners contend the election was tainted by fraud and that commercial and retail members of the Association should not have been permitted to participate.

Legal Analysis:

A party seeking an injunction under Florida case law must demonstrate: (1) irreparable harm; (2) a clear legal right; (3) an inadequate remedy at law; and (4) consideration of the public interest. Hiles v. Auto Bahn Federation, 498 So. 2d 997, 998 (Fla. 4th DCA 1986). Since a temporary injunction is an extraordinary remedy, it should be granted sparingly and only after the moving party has alleged and proved facts entitling it to relief. Id.

With regard to the First Short-Term Rental Policy, as the policy was rescinded, the prayer for enjoinment is now moot. See e.g. Florida Cony, Inc. v. City of Tallahassee, 212 So. 3d 452 (Fla. 1st DCA 2017) ("The request for an injunction is also moot because the Ordinance was already nullified and made void by the express language of §790.33."). Thus, the Court turns its attention to the action of the Board in requiring hurricane impact windows. The validity of the composition of the Board, in this mixed-use condominium unit, has previously been determined by the Florida Supreme Court. See Cohn v. Grand Condominium Ass 'n, Inc., 62 So. 3d 1120.

Although the instant motion alleges proxy fraud, the credible testimony adduced at the evidentiary hearing established that a proper

election was conducted, and the requisite vote was had to permit for the levying of the assessment. As such, Petitioners have failed to establish a clear legal right to relief.

Moreover, as the impact window project is significantly underway, and is designed to protect against catastrophic loss, an issuance of an injunction halting the project would contravene the public interest.

Finally, the record is devoid of any indication that the assessments have been enforced, thus, the claim is premature. See Margate Village Condominium Ass’n, Inc. v. Wilfred, Inc., 350 So. 2d 16 (Fla. 4th DCA 1977) (the time to challenge the legality of assessment against condominium unit owners was when the assessments were sought to be enforced).

Where money damages or other relief are available, a preliminary injunction will normally be denied, though extraordinary circumstances may give rise to irreparable harm. 11 A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1. “The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974) ( “[A]n alleged loss of business will not support a finding of irreparable harm."); State Dep't of Transp. v. Kountry Kitchen of Key Largo, 645 So. 2d 1086 (Fla. 3d DCA 1994) (holding that an owner's allegation it would suffer business losses if a sign was removed was insufficient to justify the issuance of a temporary injunction), citing B.G.H. Ins. Syndicate, Inc. v. Presidential Fire & Casualty Co., 549 So. 2d 197, 198 (Fla. 3d DCA 1989) ("For injunctive relief purposes irreparable harm is not established where the potential loss can be adequately compensated for by a monetary award."). In the instant case, Petitioners' remaining claims for injunctive relief all turn on the payment of funds or loss of potential short-term rental income. As such, they present claims for quantifiable damages and are all remediable at law.

Moreover, an analysis of the remaining mandatory prongs dictates denial of the injunction. Florida law defines "hotel" in the following manner:

509.242 Public lodging establishments; classifications. - (1) A public lodging establishment shall be classified as a hotel, motel, nontransient apartment, transient apartment, bed and breakfast inn, timeshare project, or vacation rental if the establishment satisfies the following criteria:
(a) Hotel. A hotel is any public lodging establishment containing sleeping room accommodations for 25 or more guests and providing the services generally provided by a hotel and recognized as a hotel in the community in which it is situated or by the industry. §509.242, Fla. Stat. (2018). This definition is paramount to understanding the difference in needs between the hotel, designed for the purpose of providing lodging to short-term lodgers, and condominium units, within which unit owners desire to essentially provide hotel services. A rapid increase in short-term rentals did not result in the Board banning such rentals, altogether.

Instead, the Board carefully embarked on a course of regulation to account for security and parking concerns. The public policy concerns articulated at the evidentiary hearing, including serious public safety issues stemming from the entry of unidentified individuals into a private residential building, clearly justify the measures engaged by Board. Quite simply, the Board has to track those individuals entering the residential area in order to minimize risk.

As such, there is no clear legal right to relief, there is no danger of irreparable harm, there is an adequate remedy at law, and issuance of an injunction would contravene public policy.

WHEREFORE Plaintiffs' Renewed Verified Amended Motion for Temporary Injunction is hereby DENIED.

DONE AND ORDERED In Chambers at Miami-Dade County, Florida, on 12/21/18.

Bronwyn C. Miller, Circuit Court Judge.

With this in mind, and after a thorough examination of the record on appeal, we conclude that the trial court did not abuse its discretion by denying VME's motion for temporary injunction and made sufficient factual findings to support its conclusion that the elements necessary to support imposing a temporary injunction were not met. Briceño v. Bryden Invs., Ltd., 973 So. 2d 614, 616 (Fla. 3d DCA 2008) ("A trial court has wide discretion to grant or deny a temporary injunction and an appellate court will not interfere with the exercise of such discretion unless the party challenging the grant or denial clearly shows an abuse of that discretion.") (quoting Perry & Co. v. First Sec. Ins. Underwriters, Inc., 654 So. 2d 671, 671 (Fla. 3d DCA 1995)); see also Cohen Fin., LP v. KMC/EC II, LLC, 967 So. 2d 224, 226 (Fla. 3d DCA 2007) (same).

Affirmed.

7