||IN THE DISTRICT COURT OF APPEAL OF FLORIDA
||Case Nos. 2D03-3148 CONSOLIDATED 2D03-5090
||907 So.2d 1226, 30 Fla. L. Weekly D1681,
||July 8, 2005
||CALVIN KENYON AND CAROLYN KENYON,
POLO PARK HOMEOWNERS ASSOCIATION, INC., APPELLEE.
||Appeal from the Circuit Court for Polk
County; Dennis P. Maloney, Judge.
||Edward P. Jordan, II, P.A. Clermont, for
||John Marc Tamayo and Peter W. van den Boom
of Frost, Tamayo, Sessums & Aranda, P.A., Bartow, for Appellee.
||The opinion of the court was delivered by:
||This action arises from an attempt by the
Polo Park Homeowner's Association (the Association) to enforce certain
deed restrictions against homeowners Calvin and Carolyn Kenyon. We
||The Kenyons purchased their home in the Polo
Park subdivision in 1994. The Association is responsible for enforcing the
covenants and restrictions applicable to the subdivision, something it
showed little interest in until March of 2000, when it notified the
Kenyons that they were violating the covenants. The Association was not
satisfied with the Kenyons' response to the notice, and in July 2000, it
||The Association sought a permanent
injunction to prohibit the Kenyons from continuing to violate the
covenants. The Kenyons counterclaimed for defamation and breach of
contract arising from the manner in which the Association enforced, or
failed to enforce, the covenants. The trial court entered a partial
summary judgment in favor of the Association on the Kenyons' defamation
claim and on one of their breach of contract claims.
||The case was then tried before a jury. *X1
The jury found that the Kenyons had violated the covenants and that the
Association had "unequally, arbitrarily, unreasonably, or
selectively" enforced the covenants by allowing violations to exist
on the property of other homeowners. The trial court granted the
Association's motion for a permanent injunction pursuant to the jury
verdict, denied the Kenyons' motion for an injunction, and granted the
Association's motion for attorney's fees after finding that the
Association was the prevailing party.
||In this appeal, the Kenyons first contend
that the trial court erred when it granted the Association's motion for
partial summary judgment. Specifically, they argue that the Association
did not meet its burden to establish the nonexistence of a genuine issue
of material fact. We review this issue de novo. Volusia County v. Aberdeen
at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000).
||The record shows that the Association filed
a three-paragraph motion for summary judgment asserting that the Kenyons
had no evidence to support their claims. The Association filed no
affidavits, admissions, interrogatory answers, depositions, or anything
else to establish that the Kenyons could not prove their claims for
defamation or breach of contract. The burden of proving the absence of
material fact is upon the moving party. Holl v. Talcott, 191 So. 2d 40
(Fla. 1966). Until the movant has met this burden, the opposing party is
under no obligation to show that issues remain to be tried. Id. The
Association did not carry its burden by simply filing a motion in which it
argued that the Kenyons had no evidence to support their claims. At this
stage of the proceedings, the Kenyons, as the nonmoving party, had no
burden to prove anything until the Association met its burden as the
moving party. See id. Accordingly, it was error for the trial court to
grant the Association's motion for partial summary judgment. *X2
||Next, the Kenyons contend that because the
jury found that the Association had selectively enforced the covenants,
the trial court erred when it granted the Association's motion for a
permanent injunction. The party challenging the enforcement of an
otherwise valid covenant has the burden to prove defensive matters that
preclude enforcement, such as the enforcing authority acted in an
arbitrary or unreasonable manner. Prisco v. Forest Villas Condo.
Apartments, Inc., 847 So. 2d 1012 (Fla. 4th DCA 2003). The jury found that
the Association "unequally, arbitrarily, unreasonably, or
selectively" enforced the covenants. In light of that finding, which
the Association has not challenged, it was error for the trial court to
grant the Association's motion for a permanent injunction. See Stephl v.
Moore, 114 So. 455 (Fla. 1927); Don Cesar Prop. Owners Corp. v. Gallagher,
452 So. 2d 1047 (Fla. 2d DCA 1984); Prisco.
||Finally, the Kenyons contend that the trial
court erred when it concluded that the Association was the prevailing
party and awarded the Association attorney's fees. Because we are
reversing the order granting the permanent injunction and remanding for
further proceedings on the Kenyons' claims for breach of contract and
defamation, we must necessarily reverse the award of attorney's fees in
favor of the Association.
||Reversed and remanded for further
proceedings consistent with this opinion.
||WHATLEY and NORTHCUTT, JJ., Concur.
No party has raised an issue regarding the propriety of a jury trial in
Our reversal of the summary judgment should not be viewed as expressing an
opinion on the merits of the underlying claims.