        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

       IVETTE SMULDERS for 129-31 HARRISON STREET, LLC
                    and JOHN E. MURPHY,
                          Appellants,

                                      v.

     THIRTY-THREE SIXTY CONDOMINIUM ASSOCIATION, INC.,
                          Appellee.

                              No. 4D17-1138

                              [April 25, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Joseph Marx, Judge; L.T. Case No. 50-2015-CA-006466-
XXXX-MB.

   Joseph S. Kashi of Joseph S. Kashi, P.A., Plantation, and Anthony J.
Titone of Law Office of Anthony J. Titone, P.A., Coral Springs, for
appellants.

  Kathryn L. Ender and Maria D. Vera of Cole, Scott & Kissane, P.A.,
Miami, for appellee.

GROSS, J.

    The circuit court determined that this case was moot because it could
not grant relief if the plaintiffs prevailed. We reverse because we hold that,
if appellants prove that a violation of the declaration of condominium
occurred, the issue of their entitlement to a refund of a special assessment
remains.

   Appellants Ivette Smulders and John Murphy own units in the
condominium operated by the Thirty-Three Sixty Condominium
Association, Inc. They brought suit for injunctive and declaratory relief to
challenge the Board of Directors’ approval of a special assessment of
$350,000 for maintenance and renovation of condominium lobbies,
contending that the Board had acted contrary to the declaration of
condominium.
   Because the Association had commenced the renovation project,
appellants sought a temporary injunction to halt the project. The circuit
court denied temporary relief. After this ruling, appellants apparently paid
the assessment, a prudent act that avoided a lien foreclosure lawsuit
under section 718.116, Florida Statutes (2017). 1

    Both sides moved for summary judgment. One of the Association’s
grounds was that, as of the date of the motion, the project had been
completed and all unit owners, including appellants, had paid their share
of the special assessment. Thus, the Association argued that there was
“no bona fide, actual, present need for a declaration as prayed for in
[appellants’] Amended Complaint.” The Association further argued that
“the scant ultimate facts alleged by [appellants] in support of their claim
regarding an alleged ‘bona fide adverse interest between the parties
concerning a power, privilege, immunity or right of the [appellants]’ have
been rendered moot by appellants’ admissions that they have ‘paid the
assessment.’”

  At the summary judgment hearing, the trial court opined that the issue
was moot, asking the parties:

      THE COURT: What are you going to ask me [to] enjoin? The
      project that you’re disputing has been completed, hasn’t it?

      APPELLANTS: Well, it has, and we tried to stop it.

The judge then asked if appellants wanted him to have the Association rip
out the renovations, to which appellants’ counsel responded in part:

      Well, I think there should be some affirmative injunctive relief
      that the Court can frame to at the very least, these gentlemen
      are entitled to their assessments back, okay, because they’re
      paying for an illegal undertaking and I think the court in its
      power, something that the court can consider, that they
      restore the lobby as much as possible to the way they were
      before.




1 We are aware of no provision of the Condominium Act, Chapter 718, Florida
Statutes (2017), or the underlying condominium documents in this case, that
would allow a unit owner to deposit a disputed assessment with the registry of
the court. Compare § 83.60(2), Florida Statutes (2017) (allowing a tenant to post
rent into the registry of the court pending final judgment in an eviction case).

                                      -2-
The trial court again stated, “I don’t think there’s anything to enjoin right
now. It’s over.” Concerning mootness, counsel for the Association added:

       [T]he prayers for relief show that there is – this is even more
       moot because when he’s asking the Court to enjoin the
       association from collecting assessments, which is done and
       paid. Enjoin the defendant from moving forward with the
       lobby, they call it alterations, but it’s done.

The trial court granted summary judgment for the Association and entered
a final judgment. Having orally ruled on the ground of mootness, there is
no indication that the court addressed appellants’ claim on the merits. 2

    As the Fifth District has written,

          A case is rendered moot when it no longer presents an
       actual controversy or when the issues have ceased to exist
       because they have been “so fully resolved that a judicial
       determination can have no actual effect.”

           At least three instances have been recognized by Florida
       courts in which a moot case will not be dismissed: 1) when
       the issues are of great public importance; 2) when the issues
       are likely to recur; and 3) when collateral legal consequences
       flow from the issues to be resolved that may affect the rights
       of a party.

Mazer v. Orange County, 811 So. 2d 857, 859 (Fla. 5th DCA 2002) (internal
citations omitted).

   To say that this case is moot is contrary to the system of self-
government created by the Condominium Act. Section 718.303(1), Florida
Statutes (2017), implements checks and balances on the power of
associations and their boards of directors by permitting a unit owner to
bring “[a]ctions for damages or for injunctive relief, or both, for failure to
comply” with the provisions of Chapter 718, “the declaration, the
documents creating the association, and the association bylaws.” Nothing
is more central to condominium governance than the manner in which a
board raises money from unit owners and then spends it. Given the glacial
pace of litigation, a board would almost always be able to pass a special

2 We question whether final judgment should have been entered, since dismissal
is the appropriate disposition when a case is moot. See Breslof v. The Pines of
Delray North Assoc., Inc., 583 So. 2d 810, 811 (Fla. 4th DCA 1991).

                                     -3-
assessment, collect it, and spend it on a project before a challenge to the
assessment came to trial. If the spending of an assessment always
rendered moot a challenge to its legality, then the self-governance
contemplated by the Condominium Act would be severely undermined; a
board would have little check on its handling of money.

    As appellants’ counsel argued below, the case is not moot because there
remains the issue of appellants’ entitlement to reimbursement of the
assessment they paid if they prove a violation of the declaration of
condominium. 3 Although not directly relevant on the issue of mootness,
if appellants prevail below, there is the issue of their entitlement to recover
such “additional amounts as determined by the court to be necessary to
reimburse [appellants] for his or her share of assessments levied by the
association to fund its expenses of the litigation;” and there is also the
issue of attorney’s fees to the “prevailing party.” § 718.303(1), Fla. Stat.
(2017).

   Our holding that this case is not moot should not be read to mean that
we disagree with the trial court’s determination that an injunction ordering
the lobby work undone is an inappropriate remedy in this case.

    Reversed and remanded for further proceedings.

WARNER and LEVINE, JJ., concur.

                             *        *         *

    Not final until disposition of timely filed motion for rehearing.




3 In the amended complaint, a return of appellants’ payment falls under either
“such other relief as the Court deems necessary and proper under the
circumstances” or “any such other further ancillary relief as the Court deems
appropriate.”

                                     -4-
