Stiller v. Mariner Cay Property Owners Ass'n, Inc., 87-1560

• Decision Date: 14 October 1987
• Docket Number: No. 87-1560,87-1560
• Citation: 12 Fla. L. Weekly 2413,513 So.2d 798
• Parties: 12 Fla. L. Weekly 2413 Freddie Joe STILLER, Jeannie Stiller, Hubert Stiller and Verdie May Stiller, Appellants, v. MARINER CAY PROPERTY OWNERS ASSOCIATION, INC., Appellee.
• Court: Florida District Court of Appeals

Page 798

513 So.2d 798

12 Fla. L. Weekly 2413

Freddie Joe STILLER, Jeannie Stiller, Hubert Stiller and Verdie May Stiller, Appellants, v. MARINER CAY PROPERTY OWNERS ASSOCIATION, INC., Appellee.

No. 87-1560.

District Court of Appeal of Florida,

Fourth District.

Oct. 14, 1987.

James F. Littman of James F. Littman, P.A., Stuart, for appellants.

Leif J. Grazi of Grazi & Gianino, Stuart, for appellee.

PER CURIAM.

In our opinion the trial court committed reversible error in granting the temporary injunction which is the subject of this appeal. We say this because necessary predicates were not established.

It was not shown that (1) appellee would suffer irreparable harm, Hiles v. Auto Bahn Federation, Inc., 498 So.2d 997 (Fla. 4th DCA 1986); (2) appellee has an inadequate remedy at law, Stading v. Equilease Corp., 471 So.2d 1379 (Fla. 4th DCA 1985); (3) appellee has a clear legal right to the relief requested, Playpen South, Inc. v. City of Oakland Park, 396 So.2d 830 (Fla. 4th DCA 1981); nor that (4) a temporary injunction will serve the public interest. Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980).

REVERSED.

HERSEY, C.J., and WALDEN, J., concur.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge, dissenting.

In my opinion, the trial court did not abuse its discretion in entering a temporary injunction here to preserve the status quo; and a reversal is inappropriate, when, as here, the transcripts are incomplete in both appendices.

I conclude the following facts have been established for the purpose of our review:

1. The Stillers sold part of their residential property, but recorded an east-west easement, alongside what is now Whiticar Way, from the property they did not sell to St. Lucie Boulevard, a meandering thoroughfare west of the Manatee Pocket in Stuart.

2. The Mariner Cay Property Owners Association, without objection from the Stillers, fenced the west side of the development and planted it, including the Stillers' 30 foot easement.

3. With the verbal consent of the Association, the Stillers used the same roads in the development as the lot purchasers did to get to and from St. Lucie Boulevard, from the time of development to the present.

4. From the plat in the appendix, the entrance to the development from St. Lucie Boulevard appears to be a little more than 150 feet from the entrance that would be created for the Stillers, were they able to replace the chain link fence and plantings with a road along their easement.

5. The Stillers' present attempts to use their easement may or may not bear a relation to the litigation between them and a lender in another action, in which there may or may not be questions of encroachment upon and the creation or abandonment of the easement. There is no evidence to confirm the existence or nonexistence of any of these possibilities. Only pleadings alleging the existence of the foregoing are in the appendices.

6. The Stillers in mid-April 1987 attempted to bulldoze the easement in assertion of their rights to same, including removal of the fence that crossed the easement, and of plantings there.

7. The temporary injunction which finally issued after notice--and which the court is reversing--maintained the status quo by prohibiting the Stillers from proceeding at that time.

8. The Association seeks a permanent injunction, requiring the Stillers to use the development thoroughfares, and alleges the creation of a traffic hazard by the Stillers' proposed road, which may or may not...