TRI PAR LAND DEVELOPMENT CORPORATION, APPELLANT,
v.
CARL W. HENTHORN, ET AL., APPELLEES
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Tri Par Land Development Corporation appealed a judgment requiring it to comply with land covenants. On this second appeal, the court affirmed the trial court's decision, holding that the covenants were enforceable and that there was no legal impossibility of performance.
The court held that the prior opinion did not prevent the trial court from ruling on the impossibility theory, and that the trial court's finding of no legal impossibility of performance was supported by the record and correct.
[1] A prior appellate ruling that covenants are not perpetual does not preclude a trial court from adjudicating a separate theory of partial impossibility of performance on r…
[2] A trial court's finding of no legal impossibility of performance, supported by the record, is sufficient to resolve that issue without further remand, even if the court i…
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Join FLexlaw to unlock all legal intelligence“We hold that our prior opinion did not prevent the trial court from ruling on the second theory advanced by Tri Par.”
Establishes that the trial court had authority to address the impossibility of performance argument despite the prior ruling on perpetuity.
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Join FLexlaw to unlock all legal intelligenceTri Par sought to invalidate land covenants on two grounds: first, that they were perpetual and therefore invalid, and second, that there was partial …
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This is an appeal from a final judgment entered in the court below upon remand to that court after an appeal to this court. *430This court’s opinion in the prior appeal is reported as Henthorn v. Tri Par Land Development Corporation, Fla.App.1969, 221 So.2d 465. The covenants involved in this cause are quoted in the prior opinion and therefore need not be repeated here. Suffice it to say that in the prior opinion we held that the covenants were not perpetual and therefore reversed the trial court which had held the covenants invalid as it had found them to be perpetual. The sole question before us previously was whether or not the covenants were perpetual.
In the trial court the plaintiff, Tri Par, in attempting- to invalidate wholly or partially the covenants, filed its complaint on two theories. The first was that the covenants were perpetual and therefore invalid. This theory was laid to rest by our prior opinion. The second theory was that there was a partial impossibility of performance and therefore the covenants were either wholly or partially invalid.
Upon remand of the prior appeal the trial court held that it was powerless to adjudicate the second theory urged by the plaintiff, Tri Par, because this court had ruled that Tri Par was required to carry out the terms of the covenants and the trial court was bound by that ruling. However, the trial court in its final judgment held further that if it were not true that it was powerless to rule on Tri Par’s second theory it would find that there was no legal impossibility of performance of the covenants. Such a finding is amply supported by the record on appeal.
We hold that our prior opinion did not prevent the trial court from ruling on the second theory advanced by Tri Par. It is clear from the trial court’s final judgment that there is no necessity to remand this cause for a determination of the remaining theory, as the trial court has already spoken to the effect that it has found no legal impossibility of performance.
In view of this we hold that the final judgment of the trial court ordering the plaintiff, Tri Par, to comply with the terms of the covenants is correct and, therefore,
Affirm.
LILES and MANN, JJ., concur.
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TWO M Dev. Corp. v. Mikos, 578 So. 2d 829 (Fla. 2d DCA 1991)…determined that the units were incorrectly valued as substantially complete. Our prior opinion, therefore, did not prevent the trial court from considering the merits of count II of the appellant’s complaint. See Tri Par Land Dev. Corp. v. Henthorn, 241 So. 2d 429 (Fla. 2d DCA 1970); Harbour Club Condo No. Three, Inc. v. Sauder, 380 So. 2d 449 (Fla. 2d DCA 1980). The trial court, therefore, erred by holding it lacked jurisdiction. We, accordingly, reverse and remand with instructions to allow the appellant t…
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Hopwood v. Revitz, 312 So. 2d 516 (Fla. 3d DCA 1975)…venants, may not be required to pay a fee higher than that prescribed in the covenant as long as the covenant is in full force and effect. We find that this position is well taken. See Tri Par Land Development Corporation v. Henthorn, Fla. App.1970, 241 So. 2d 429. The lot owners’ position is further substantiated by the fact that the trial court did not have jurisdiction to amend or change the consent final judgment in a subsequent petition to clarify and enforce the final judgment. Though it is true that a…
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Harbour Club Condo. NO. Three, Inc. v. Sauder, 380 So. 2d 449 (Fla. 2d DCA 1979)…rther included the general statement that the trial court could consider “such other ancillary matters as may be necessary to terminate this litigation.” Appellant has directed us to our decision in Tri Par Land Development Corporation v. Henthorn, 241 So. 2d 429 (Fla. 2d DCA 1970). In that case Tri Par sought cancellation of restrictive covenants on the ground that 1) they were perpetual or 2) that there was partial impossibility of performance. [*451] The trial court cancelled the covenants on the ground t…
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- Henthorn v. Tri Par Land Dev. Corp., 221 So. 2d 465 (Fla. 2d DCA 1969)