Hevia v. Palm Terrace Fruit Co., 1300

• Citation: 119 So.2d 795
• Decision Date: 06 April 1960
• Docket Number: No. 1300,1300
• Parties: Guy HEVIA, Lessee, Grover C. Herring and Rose B. Herring, his wife, and Roland C. Gest and Lucile Gest, his wife, Appellants, v. PALM TERRACE FRUIT COMPANY, formerly Palm Terrace, Inc., a Florida corporation, Arthur Ward and Pauline W. Ward, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 795

119 So.2d 795

Guy HEVIA, Lessee, Grover C. Herring and Rose B. Herring, his wife, and Roland C. Gest and Lucile Gest, his wife, Appellants, v. PALM TERRACE FRUIT COMPANY, formerly Palm Terrace, Inc., a Florida corporation, Arthur Ward and Pauline W. Ward, his wife, Appellees.

No. 1300.

District Court of Appeal of Florida, Second District.

April 6, 1960.

Rehearing Denied May 4, 1960.

Thomas Anderson, Anderson & Nadeau, Miami, for appellants.

D. Arthur Yergey, Yergey & Yergey Orlando, H. M. Voorhis, Maguire, Voorhis & Wells, Orlando, for appellees.

SANDLER, HARRY N., Associate Judge.

This is an appeal from the final decree which enjoined the appellants from operating a tavern or beer hall and from selling, keeping for sale, storing for sale or distributing any alcoholic beverages of any kind upon certain lots or parcels of land in a subdivision known as Orlando Beach, in Brevard County, Florida. The property involved consists of two parcels, one leased by Guy Hevia (one of the appellants) and Harvey Berman, and which was operated by Guy Hevia as a drive-in restaurant, and the other, the Sea Breeze Motel, owned and operated by Roland C. Gest and wife. On May 16, 1951, the owners of the subdivision herein involved sold and conveyed to Grover C. Herring and Rose B. Herring, his wife, as an estate by the entireties, the lands lying and being in Brevard County, Florida, to wit:

Lots 10 to 16, inclusive, in Block 4, and part of Lot 9, in Block 4,

in which deed the property was conveyed subject to the following restrictions:

'It is understood that Lots 10 to 16, Block 4, aforesaid are platted and designed for business lots, and that all of Lot 9 is platted and designed for a residential lot. Reference is to recorded plat as recorded in Plat Book 9, page 43, of the current public records of Brevard County, Florida, and to the restrictions recorded along with and on said plat and these Lots are sold subject to said recorded plat and the restrictions set out thereon as to the uses to which the lots may be put, * * *.'

On September 1, 1951, the subdivision owners conveyed to Grover C. Herring and Rose B. Herring, his wife, by warranty deed, the following piece or parcel, to wit:

'The East 155 ft. of East 175 ft. of Lot 8, Block 4, according to the plat of Orlando Beach as recorded in Plat Book 9, page 143, public records of Brevard County, Florida,'

and in and by said deed the above described parcel was conveyed, subject tot he restriction:

'This is a residential lot and is subject to the restrictions on the recorded plat and to the further restriction that no prefabricated house or house built elsewhere shall be removed to, placed upon, or maintained on said lot'.

Grove C. Herring and wife thereafter, during the month of December, 1957, leased the said lots and the restaurant building located thereon to the defendants, Guy Hevia and Harvey Berman. On August 22, 1946, the then owners of said subdivision sold and conveyed to C. E. Anderson, Jr. of Dillon, South Carolina, Lot 10 of Block 1, of the plat of Orlando Beach, and in and by the said deed the said described property was conveyed subject to the following restrictions:

'Subject to restrictions of record as shown on recorded plat.

'Subject also to the following further restrictions:

'1. Plans and specifications of any building proposed to be erected on said lot must first be submitted to grantors and their written approval thereof secured before construction begins or material is laid on the ground.

'2. In the operation of any business on said premises, all business shall be transacted inside the building, except in case of a service station, and pumps and oil dispensers or racks for cans of oil, may be outside of building. No broken down cars, parts of cars, old tires, garbage or other rubbish shall accumulate anywhere on the premises. Grease rack may be outside building.

'3. No outside toilets or other unattractive out-buildings shall ever be constructed on the premises.'

C. E. Anderson, Jr. thereafter, on January 10, 1958, conveyed Lot 10 of Block 1, to Roland C. Gest and Lucile Gest, his wife, the conveyance being likewise made subject to the restrictions of record. The restrictions in question likewise appear on the plat of the subdivision, being as follows, to wit:

'(1) Except on the one east and west street in this subdivision which is hereby designated as a business street, to provide a commercial section for Orlando Beach * * *.

'(2) No alcoholic beverage of any kind or any alcoholic content shall ever be sold, kept for sale or stored for sale or distribution on any lot in this subdivision.

'(3) * * *

'(4) No noxious or offensive trade or activity shall be carried on upon any lot, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.

'(5) * * *

'(6) * * *

'(7) These covenants are to run with the land and shall be binding to all parties and all persons claiming under them until June 1972. * * *'

The defendants were charged specifically with violating the restriction on the land described as No. 2, to wit:

'No alcoholic beverage of any kind or any alcoholic content shall ever be sold, kept for sale or stored for sale or distribution on any lot in this subdivision.'

Hevia and Berman were also charged with violating the restriction appearing as No. 4, to wit:

'No noxious or offensive trade or activity shall be carried on upon any lot, nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.'

Thereafter defendants filed motion to dismiss, motion to strike, and motion for more definite statement, which apparently were argued before the Judge but no ruling made thereon. Thereafter an answer was filed on behalf of the defendants which admitted that beer was advertised and sold upon the premises but denied that this constituted a violation of any restrictive covenants; that plaintiffs were guilty of laches in failing to bring this cause of action until such time as the defendants had expended considerable monies, the plaintiffs having known of the improvements being made by the defendants on the premises; that the covenants and restrictions contained in the plat of the subdivision referred only to the lots in the subdivision other than those on the east and west street known as Orange Avenue; and, further, that the area in question since the filing of the plat had so changed as to make the restrictions inapplicable.

Considerable testimony was taken on the issues made by the complaint and the answer, after which the trial court entered the decree in question which found the restrictive covenants contained on the map or plat to be covenants running with the land, as such, enforceable as contract concerning the land of the plaintiffs in this suit, as well as other purchasers of record of the property in said subdivision; that all of the defendants had both actual and constructive notice...