       Third District Court of Appeal
                               State of Florida

                           Opinion filed June 20, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D16-1381
                          Lower Tribunal No. 15-22197
                              ________________


                           ASA College, Inc., etc.,
                                    Appellant,

                                        vs.

                   Dezer Intracoastal Mall, LLC, etc.,
                                    Appellee.



     An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, John Schlesinger, Judge.

      Cole, Scott & Kissane, P.A., and Alexandra Valdes and Scott A. Cole, for
appellant.

      Coffey Burlington, P.L., and Susan E. Raffanello, for appellee.


Before EMAS, SCALES and LUCK, JJ.

      EMAS, J.
      ASA College, Inc. (“ASA”) appeals the trial court’s order denying ASA’s

motion for temporary injunctive relief and granting temporary injunctive relief to

Dezer Intracoastal Mall, LLC (“Dezer”). For the reasons that follow, we reverse

the denial of ASA’s motion, but affirm the order, insofar as it grants Dezer’s

motion.

      BACKGROUND

      The dispute between ASA and Dezer arose out of their respective ownership

of two parcels located within the Intercoastal Mall in North Miami Beach (the

“Mall Property”). In 2013, Dezer purchased what is hereinafter referred to as the

“Center Parcel” and, thereafter, ASA purchased what is hereinafter referred to as

the “Office Parcel.” When ASA and Dezer purchased their respective parcels,

each was subject to an easement—the Amended and Restated Shopping Center

Operation and Reciprocal Easement Agreement (“REA”)—executed in 1997 by

the prior owners of the Center Parcel and the Office Parcel.

      In 2014, ASA began operating a college on the Office Parcel, and, according

to ASA, Dezer thereafter attempted to limit ASA’s ability to utilize certain

common-area parking areas of the Center Parcel, which it was entitled to use under

the terms of the REA. Specifically, according to ASA, Dezer erected fences on the

Center Parcel and advised ASA that it would place signage and implement a

window sticker system which would limit ASA and its guests to parking only in a

specified portion of the Center Parcel.
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      ASA sued, seeking, inter alia, temporary and permanent injunctive relief

asserting that Dezer violated the REA by interfering with ASA’s ability to use the

Center Parcel common-area parking.           Dezer counterclaimed for, inter alia,

temporary and injunctive relief, asserting that, pursuant to the REA, ASA was

prohibited from operating a college on the Office Parcel.

       ASA’s motion for temporary injunction requested the court to enjoin Dezer

from “erecting large green fences on common parking areas which ASA has the

right to use,” and from “threatening to remove [ASA’s] easement for common

parking rights.” Dezer’s motion for temporary injunction asked the court to enjoin

ASA from operating a “post-secondary educational facility, college, or any use

other than office use.”

      Following an evidentiary hearing, the trial court denied ASA’s motion for

temporary injunction on the parking dispute and granted Dezer’s motion,

temporarily enjoining ASA from operating its college on the Office Parcel. ASA

appeals, asserting that, as to the parking dispute, the trial court incorrectly

construed the terms of the REA, resulting in an erroneous conclusion that ASA

could not demonstrate a substantial likelihood of success on the merits. ASA also

contends that the trial court abused its discretion in granting Dezer’s motion for

temporary injunction on the office use dispute. We address each issue in turn.

      THE PARKING DISPUTE



                                         3
      Generally, a party seeking a temporary injunction “must establish that: (1)

irreparable injury will result if the injunction is not granted, (2) there is no

adequate remedy at law, (3) the party has a clear legal right to the requested relief,1

and (4) the public interest will be served by the temporary injunction.” Bay N

Gulf, Inc. v. Anchor Seafood, Inc., 971 So. 2d 842, 843 (Fla. 3d DCA 2007). “A

preliminary injunction is an extraordinary remedy which should be granted

sparingly.” Garcia v. Dumenigo, 46 So. 3d 1085, 1087 (Fla. 3d DCA 2010)

(quoting City of Jacksonville v. Naegele Outdoor Adver. Co., 634 So. 2d 750, 752

(Fla. 1st DCA 1994)) (additional citation omitted).

      In denying ASA’s motion for temporary injunction on the parking dispute,

the trial court determined that ASA had proven all of the requisite prongs for

obtaining the injunction, with the exception of demonstrating a substantial

likelihood of success on the merits.       Specifically, the court determined that,

although the REA contains general language providing ASA an easement to park

in certain common-area parking areas in the Center Parcel, a more specific

provision of the REA limits ASA to 100 parking spaces in the Office Parcel, and

therefore, ASA could not demonstrate a substantial likelihood of success on the

merits of its action.




1 This prong is alternatively described as a substantial likelihood of prevailing on
the merits. See Miami-Dade Cty. v. Concrete Structures, Inc., 114 So. 3d 333 (Fla.
3d DCA 2013).
                                         4
      Although we generally review such orders for an abuse of discretion,

Anchor Seafood, 971 So. 2d at 843, to the extent the order is based on the trial

court’s interpretation of a contract, we apply a de novo standard of review.

Telemundo Media, LLC v. Mintz, 194 So. 3d 434, 435 (Fla. 3d DCA 2016). See

also Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1258 (Fla. 2017)

(holding: “The standard of review of trial court orders on requests for temporary

injunctions is a hybrid. To the extent the trial court's order is based on factual

findings, we will not reverse unless the trial court abused its discretion; however,

any legal conclusions are subject to de novo review”) (internal citation omitted).

      Because the trial court’s denial of ASA’s motion was premised upon its

construction of the terms of the REA, we apply the de novo standard of review.

Applying this standard, we conclude that the trial court erred in its construction of

the REA, and that, under a correct construction of the terms of the REA, ASA

satisfied the “substantial likelihood of success on the merits” prong.

      The relevant sections of the REA provide:

                                    ARTICLE I
                                   DEFINITIONS

      As used in this REA, the following terms have the following
      meanings:

      ...

      1.3. Common Area.



                                          5
      “Common Area” means all areas within the boundary of the
      Center Parcel or Office Parcel that are, or are designated or
      intended to be, available for the non-exclusive use,
      convenience and benefit of all Occupants (as hereinafter
      defined) of the Office Parcel and Center Parcel and their
      respective Permittees (as hereinafter defined).

      Among other things, Common Area includes by way of
      illustration and not of limitation: (a) Access Roads; (b) the
      Parking Area (as hereinafter defined); (c) sidewalks and
      walkways . . .

...

1.9. Occupant

      “Occupant” or “Occupants” means any Person entitled by Lease
      to use and occupy any area within the Center or the Office
      Parcel.

...

1.11. Parking Area. .

      “Parking Area” means all areas in the Center or Office
      Parcel which are set apart or used from time to time for
      automobile and other vehicle traffic and parking, including,
      without limitation, traffic lanes, aisles and roadways (including
      Access Roads) and curbs adjacent thereto; vehicle parking stalls
      at grade or in multi-level parking decks; pedestrian walkways,
      grade separations, including retaining walls; lighting standards;
      and traffic and directional signals and all amenities relating
      thereto.

1.12. Party.

      A “Party” means Center Owner or Office Owner and “Parties”
      mean all of the foregoing, or any successor Person(s) acquiring
      the leasehold and/or fee interest, as the case may be, of a Party
      in or to any portion of such Party’s Parcel.


                                  6
1.13. Permittees

         “Permittees” means all Occupants and their respective officers,
         directors, employees, agents, partners, contractors, customers,
         visitors, invitees, licensees and concessionaires.

...

                                ARTICLE II
                               EASEMENTS

2.1. Definitions and Documentation.

         For purposes of this Article, the following will apply:

      (a) All rights, privileges and easements granted herein for the
          benefit of a Party (the “Grantee”) are nonexclusive and in
          common with the party granting such rights, privileges and/or
          easements (the “Grantor”) and, unless provided otherwise, are
          irrevocable and for the benefit of each of the Parties hereto and
          their respective successors and assigns as owners of their
          respective Parcels.

         ...

2.2 Easements for Use of Common Areas (Other than Common
Utility Facilities and Access Roads).

      (a) Center Owner hereby grants to Office Owner an easement
         in the Common Areas on the Center Parcel (other than the
         Access Road portions thereof referred to in Section 2.3 and the
         Common Utility Facilities referred to in Section 2.4) for the
         benefit of the Office Parcel for:

           (1) ingress to and egress from the Office Parcel; and
           (2) circulation, passage and parking of vehicles, subject to
               Section 6.2; and
           (3) circulation, passage and accommodation of pedestrians;
              provided, however, that such easements are limited to
              such portions of the Common Area of the Center Parcel as
              are set aside, required and authorized for such use.
                                      7
            (b) Office Owner, to the extent any portion of the Office Parcel
                constitutes roadway, pedestrianways or parking spaces, hereby
                grants to Center Owner an easement in the Common Areas on
                the Office Parcel for the benefit of the Center Parcel for:

                 (1)      ingress to and egress from the Center Parcel; and
                 (2)      circulation, passage and parking of vehicles; and
                 (3)      circulation, passage and accommodation of
                       pedestrians; provided, however, that such easements are
                       limited to such portions of the Common Area of the
                       Office Parcel as are set aside, required and authorized for
                       such use.

      ...

                                    ARTICLE VI
                              PARKING REQUIREMENTS

               6.1. Parking Spaces.

               Occupants of the Office Parcel and their Permittees shall have
               the right to use up to one hundred (100) non-designated parking
               spaces on the Office Parcel for parking automobiles, subject to
               those rules and regulations applicable to other users of parking
               spaces thereon.

               6.2. Charges for Parking; Employee Parking Areas.

               No specific charge shall be made to or collected from any
               Occupants or Permittees on the Office Parcel for the right to
               park vehicles in the Parking Areas other than the payment by
               Office Owner of its share of the Common Area expenses.

      Although section 6.1 establishes a limit of 100 parking spaces on the Office

Parcel that may be used by Occupants of the Office Parcel (e.g., ASA) and their

Permittees, there is no similar limitation on the easement granted in section 2.2(a)

for parking by the Office Owner (i.e.,
                                             8
ASA) in the common areas located within the Center Parcel. The only limitation

on the easement established in section 2.2(a) is that it is “subject to section 6.2,”

which simply provides that the Occupants or Permittees on the Office Parcel shall

not be charged for parking, other than what Office Owner (ASA) must pay as its

share of common area expenses.

         Thus, contrary to the trial court’s interpretation that the “specific provision”

of section 6.1 controls over the REA’s “general contents,” there is no conflict

between sections 2.2(a) and 6.1, and thus no need to determine which provision

“controls.” Instead, the plain language contained within these two provisions can

be read in harmony:          under section 6.1, the Office Parcel’s occupants and

permittees (including ASA) have the right to use up to 100 spaces for parking on

the Office Parcel, and, additionally under section 2.2(a), the Office Owner (ASA)

has an easement to use the common-area parking areas of the Center Parcel, which

is not limited in any manner by section 6.2. See City of Homestead v. Johnson,

760 So. 2d 80, 84 (Fla. 2000) (acknowledging “the rule of construction requiring

courts to read provisions of a contract harmoniously in order to give effect to all

portions thereof”).

         Accordingly, because we conclude that the trial court erred in its

interpretation of the plain language of the REA, resulting in an erroneous

determination that ASA failed to establish a substantial likelihood on the merits

(while     finding    ASA    satisfied   the
                                               9
remaining prongs needed for a temporary injunction), we reverse the court’s denial

of ASA’s motion for a temporary injunction and remand for entry of a temporary

injunction in favor of ASA. See St. Johns Inv. Mgmt. Co. v. Albaneze, 22 So. 3d

728 (Fla. 1st DCA 2009) (reversing denial of motion for temporary injunction

where trial court’s construction of contract conflicted with its plain meaning and

thus, holding it was error for the trial court to find that appellant failed to

demonstrate a substantial likelihood of success on the merits).

      THE OFFICE USE DISPUTE

      In temporarily enjoining ASA’s operation of a college on the Office Parcel,

the trial court determined that Dezer had established the requisite elements for

obtaining such relief, to wit: irreparable injury, no adequate remedy at law, a

substantial likelihood of success on the merits and that the injunction will serve the

public interest.

      Article VII of the REA provides in pertinent part:

                                ARTICLE VII
                            GENERAL COVENANTS

      ...

      7.2. Limitation on Detrimental Characteristics
      No use, operation or occupancy will be made, conducted or permitted
      on any part of the Office Parcel which use or operation is obviously
      detrimental to the operation of the Center in the reasonable judgment
      of Center Owner. Included among the uses or operations which
      are prohibited because of their obvious detriment to retail stores,
      merchandise or services usually found in a retail center, as well as
      their obvious detrimental effect upon the general appearance of the
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        Center are uses or operations which produce or are accompanied by
        characteristics such as, but not limited to, the following:

              (a) Any noise, litter, odor or other activity which may constitute
                  a public or private nuisance;
              (b) Any physically damaging or dangerous hazards;
              (c) Any dumping, disposal, incineration or reduction of garbage
                  or refuse; or
              (d)Any use of the Office Parcel for other than office use.

        We find no abuse of discretion in the trial court’s decision to temporarily

enjoin ASA from operating a college on the Office Parcel, pending a final decision

on the merits. Although ASA is correct that the purpose of a temporary injunction,

generally, is to preserve the status quo, Garcia v. Dumenigo, 46 So. 3d 1085, 1087

(Fla. 3d DCA 2010), this is only so where a failure to maintain the status quo will

result in irreparable injury.   Wexler v. Lepore, 878 So. 2d 1276 (Fla. 4th DCA

2004). And this court has previously held that where a restrictive covenant is

involved, the party seeking to enforce the covenant need not establish irreparable

injury. Jack Eckerd Corp. v. 17070 Collins Ave. Shopping Ctr., Ltd., 563 So. 2d

103, 105 (Fla. 3d DCA 1990). In addition, “a mandatory injunction is the proper

means of enforcing a restrictive agreement affecting real estate.” Fox v. Madsen,

12 So. 3d 1261, 1263-64 (Fla. 4th DCA 2009). Accordingly, we affirm the trial

court’s order granting Dezer’s motion for temporary injunctive relief.2

         Affirmed in part, reversed in part, and remanded with directions and for

further proceedings consistent with this opinion.

2   We find no merit in ASA’s additional arguments on appeal.
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