Horizon South Master Home Owners Ass'n, Inc. v. West, 91-379

• Decision Date: 20 December 1991
• Docket Number: No. 91-379,91-379
• Citation: 591 So.2d 665
• Parties: 17 Fla. L. Weekly D51 HORIZON SOUTH MASTER HOME OWNERS ASSOCIATION, INC. and SUCO, Inc., Appellants, v. Walter B. WEST and wife, Diana J. West, and Velma E. West, Appellees.
• Court: Florida District Court of Appeals

Page 665

591 So.2d 665

17 Fla. L. Weekly D51

HORIZON SOUTH MASTER HOME OWNERS ASSOCIATION, INC. and SUCO Inc., Appellants, v. Walter B. WEST and wife, Diana J. West, and Velma E. West, Appellees.

No. 91-379.

District Court of Appeal of Florida First District.

Dec. 20, 1991.

Jack G. Williams, Panama City, for appellants.

Douglas L. Smith of Johnston, Harris, Gerde & Jelks, P.A., Panama City, for appellees.

WEBSTER, Judge.

Appellants, two of the three defendants below, seek review of a final order making permanent a temporary injunction, in what the parties and the trial court have chosen to treat as a boundary dispute. Concluding that one of the two arguments presented by appellants has merit, we reverse. ¹

In their amended complaint, appellees ("plaintiffs") named three defendants--SUCO, Inc.; South Atlantic Services, Inc.; and Horizon South Master Home Owners Association, Inc. Count I of the amended complaint, which is the only portion of the amended complaint relevant to this appeal, reads in its entirety as follows:

COUNT I

Plaintiffs sue the Defendants by this Count and allege:

1. This is an action to enforce a boundary by acquiescence between a parcel of land owned by the Plaintiffs and an adjoining parcel of land owned by the Defendants or anyone [sic ] or more of them, located in Bay County, Florida.

2. The boundary by acquiescence lies, [sic] along the edge of the sidewalk which separates Plaintiffs' property from Defendants' parcel, which sidewalk appears in the photographs which are attached hereto as Exhibit "A".

3. Plaintiffs have continuously occupied the real property lying east of the boundary line, and the Defendants have continually acquiesced in the recognition of said boundary line, all for a period of more than seven (7) years.

WHEREFORE Plaintiffs respectfully pray for the entry of a judgment against the Defendants, establishing de jure the boundary by acquiescence, as well as for the costs of this proceeding.

There is nothing in the record to indicate that any of the defendants was ever served; nor is there any indication that any defendant ever filed any type of motion, or an answer. (Likewise, there is no indication that plaintiffs ever sought or obtained a default against any defendant.)

Approximately two weeks after plaintiffs had filed their amended complaint, a hearing was held on a request by plaintiffs for a temporary injunction. (Count II of the amended complaint, which alleged that "Defendants or anyone [sic] or more of them" had "entered upon Plaintiffs' paved driveway and constructed a fence," requested temporary and permanent injunctions requiring defendants to remove the fence, on a trespass theory. It was the only count of the amended complaint which requested injunctive relief.) On the day of the hearing, the trial court entered a "Temporary Injunction" permitting plaintiffs to remove the fence at their expense; and enjoining appellants "from building any new fence or obstruction across Plaintiffs' exit driveway, until further order...." (Certain photographs apparently received in evidence at the hearing were made a part of the record. However, because the transcript of the hearing has not been made a part of the record, and the "Temporary Injunction" does not refer to the photographs, we are left to conjecture as to what they are intended to represent.) The "Temporary Injunction" suggests that appellants presented testimony and submitted exhibits (none of which is included in the record), and states that appellants' counsel presented an argument.

The "Temporary Injunction" is remarkably short on findings of fact. Although it contains the conclusory language that "Plaintiffs have a clear legal right to the entry of a temporary injunction," it fails to state why that is the case, or the legal theory upon which the conclusion is based. It mentions neither trespass nor boundary by acquiescence. It makes no findings regarding ownership of the land upon which the driveway is situate. In fact, it does not contain so much as a suggestion that a dispute exists regarding appellants' right to erect the fence where it was placed.

More than six months after entry of the "Temporary Injunction," plaintiffs filed a motion for summary judgment against appellants. The only theory asserted in the motion which could possibly entitle plaintiffs to any relief (assuming that it was established by the undisputed facts) reads as follows:

3. The Defendants have no right to construct anything upon the Plaintiffs' business driveway as the Defendants have acquiesced to the boundary line, being between Defendants' sidewalk and the driveway, for more than seven (7) years.

The motion requests that the trial court enter "a Summary Judgment against Defendants, SUCO, INC., and HORIZON SOUTH MASTER HOME OWNERS ASSOCIATION, INC., making the ... Temporary Injunction permanent...."

With the motion for summary judgment, plaintiffs filed an affidavit of plaintiff Walter B. West. (The record contains no other affidavits, and no discovery.) The only portions of that affidavit relevant to this appeal read as follows:

3. I have read Plaintiffs' Motion for Summary Judgment and find that all of the allegations contained therein are true.

4. The boundary by acquiescence mentioned in said Motion has existed for approximately seventeen (17) years.

The record contains what appear to be two letter memoranda addressed to the trial judge. The first is signed by appellants' attorney (although it contains no reference to whom he was purporting to represent when he wrote it); and the second is signed by plaintiffs' attorney. The two letters, read together, establish that the sole legal basis for summary judgment argued to the trial court was the existence of a boundary by acquiescence.

The trial court eventually entered the final order which is the subject of this appeal, by which it permanently enjoined appellants "from further interfering with the existing fence across Plaintiff's [sic] exit...