DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

HIBBS GROVE PLANTATION HOMEOWNERS ASSOCIATION, INC.,

Appellant,

v.

AVRAHAM AVIV and HELEN AVIV,

Appellees.

Nos. 4D14-3339 and 4D15-0149

[May 11, 2016]

Consolidated appeals from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case 

No. 13-021706 (14).

Patrick Dervishi of Shir Law Group, P.A., Boca Raton, for appellant.

Erin Pogue Newell of Wasson & Associates, Chartered, Miami, for 

appellees.

DAMOORGIAN, J.

In this consolidated appeal, Hibbs Grove Plantation Homeowners 

Association, Inc. (the “Association”) appeals the court’s orders granting 

Avraham and Helen Aviv’s (“Homeowners”) motion for summary final 

judgment and granting motions to tax attorney’s fees and costs. For the 

reasons discussed below, we reverse the summary final judgment and, in 

doing so, also reverse the attorney’s fees and costs award.

By way of background, Homeowners own a home in a planned 

residential community. The community is governed by a Declaration of 

Covenants and Restrictions (“Declaration”), and the Association is the 

entity responsible for enforcing the Declaration. On August 6, 2013, the 

Association sent Homeowners a certified demand letter informing them 

that they were in violation of the Declaration for “failing to remove 

mold/mildew from the exterior of your Property in order to maintain a safe, 

neat, and attractive appearance.” The letter specifically referenced 

Sections 11 and 12.34 of the Declaration:
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Section 11 states in pertinent part that appurtenances not 

maintained by Association shall be well maintained and kept 

in first class, good, safe, clean, neat, and attractive condition 

consistent with the general appearance of the Community by 

the Owner of each Home. 

Section 12.34 states that Roofs and/or exterior surfaces 

and/or pavement, including, but not limited to, walks and 

drives, shall be pressure treated within thirty (30) days of 

notice by the ACC [Architectural Control Committee].

In response, Homeowners faxed the Association’s attorney a letter 

stating that they hired a contractor to pressure clean the exterior of the 

house and that the job would be completed within the upcoming week. 

After a month of no further communication between the parties, the 

Association filed a complaint for injunctive relief. In its complaint, the 

Association alleged that contrary to Sections 11 and 12.34 of the 

Declaration, Homeowners: (1) “currently have mold and mildew on the 

exterior of their Property;” (2) “have failed to pressure wash the exterior of 

the Property;” and (3) Homeowners’ “failure to maintain their property in

a safe and clean condition has become a nuisance within the community.” 

The Association, therefore, sought “an order compelling [Homeowners] to 

pressure wash the exterior of their Property in order to remove the mold 

and mildew from [their] Property.”

Two days after being served with the complaint, Homeowners faxed the 

Association’s attorney a letter stating that they complied with the demand 

letter and in support attached: (1) a copy of a pressure cleaning payment 

invoice and check; and (2) photographs of the exterior of the home showing 

the pressure cleaned walls. After some attempt at resolving the dispute, 

Homeowners moved to dismiss the action for failure to state a cause of 

action. At the hearing on Homeowners’ motion to dismiss, the court 

forewarned the Association’s attorney that if he proceeded with the action 

and it turned out that Homeowners did in fact comply by pressure cleaning 

the exterior of the home, the court could tax costs and fees against the 

Association. The court ultimately denied Homeowners’ motion to dismiss, 

noting that the proper remedy at this point would be to move for summary 

judgment.

Taking their cue from the trial judge, Homeowners filed a motion for 

final summary judgment in which they reiterated their prior argument that 

they fully complied with the Association’s demand to pressure clean the 

exterior of their home. The Association in turn filed its opposition to 

summary judgment, which, inter alia, emphasized Homeowners’ 
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deposition testimony wherein they acknowledged that after the pressure 

cleaning some “stains” remained. Accordingly, the Association maintained 

“the relief sought by way of injunction in this case has not been obtained 

since the marks and/or the stains remained after the filing of the 

complaint and/or continue to exist.” The Association further argued that 

the true issue in the case was not limited to whether Homeowners pressure 

cleaned the exterior of the home, but rather whether the pressure cleaning 

removed all “stains” in compliance with Sections 11 and 12.34 of the 

Declaration.

Despite the fact that the Association presented evidence that 

Homeowners’ efforts to remove the stains on the exterior walls of the home

were unsuccessful, the court granted the motion and entered summary 

final judgment against the Association on the grounds that Homeowners 

pressure cleaned the affected areas as of the date of the filing of the 

complaint. On its own initiative, the court found that Homeowners were 

entitled to attorney’s fees as section 57.105 sanctions. The court also 

awarded Homeowners prevailing party attorney’s fees pursuant to section 

720.305, Florida Statutes. This appeal follows.

We review a trial court’s order on a motion for summary judgment de 

novo. Pearson v. Caterpillar Fin. Servs. Corp., 60 So. 3d 1168, 1171 (Fla. 

4th DCA 2011). “All doubts and inferences must be resolved against the 

moving party, and if there is the slightest doubt or conflict in the evidence, 

then summary judgment is not available.” Reeves v. N. Broward Hosp. 

Dist., 821 So. 2d 319, 321 (Fla. 4th DCA 2002).

On appeal, the Association argues that the trial court erred in entering 

summary final judgment in favor of Homeowners because the trial court 

misconstrued the nature of the dispute and, concomitantly, the relief 

sought. We agree and hold that a fair reading of the complaint clearly 

establishes that Homeowners were on notice that the stains on the exterior 

walls of their home constituted a violation of the Declaration. The fact that 

the Association sought to compel Homeowners to pressure clean the 

exterior walls in its prayer for relief did not obviate the need to remediate 

the staining problem if pressure cleaning did not cure the violation. To 

adopt the trial court’s narrow reading of the complaint would not only

render the allegations setting forth the specific violation, including the 

statements in the demand letter, meaningless, but would also violate the 

general rule that “evidence presented at [a summary judgment] hearing 

plus favorable inferences reasonably justified thereby are liberally 

construed in favor of the opponent.” Harvey Bldg., Inc. v. Haley, 175 So. 2d 

780, 782 (Fla. 1965) (emphasis added).
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Reversed.

GROSS and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.