AMERICAS HOMES, INC., APPELLANT,
v.
MICHAEL P. ESLER AND ANGEL ESLER, APPELLEES

Fla. 5th DCA | 1996-02-09
No. 95-249
PETERSON, C.J., and GOSHORN, J., concur.
668 So. 2d 239 Florida District Court of Appeal, Fifth District (1996) Caution
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Americas Homes appealed the denial of a temporary injunction to remove a sign posted by homeowners (the Eslers) on their property warning of local flooding. The court affirmed, holding that the sign constituted constitutionally protected free speech under the First Amendment and Florida law, and could not be enjoined even if it caused economic harm to Americas.


Holding

The court affirmed the denial of the temporary injunction, holding that the Eslers' sign constituted constitutionally protected free speech under the First Amendment and Florida Declaration of Rights, and could not be enjoined regardless of whether the conduct was tortious or caused economic harm to Americas.


Headnotes

[1] A sign posted on private property, accurately describing a condition affecting the property, is protected free speech under the First Amendment.

[2] A temporary injunction may be denied when the speech at issue is constitutionally protected, even if it allegedly causes economic harm.

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Key Quotes

“By placing the sign on their property in compliance with the instructions of their broker, the Eslers were exercising their right to free speech.”

Establishes that posting a factually accurate sign on one's own property constitutes protected free speech.

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Facts & Procedural History

The Eslers purchased property from an Americas affiliate in what was classified as a non-flood zone. After two years without flooding, they listed the…

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Opinion of the Court
THOMPSON, Judge.

THOMPSON, Judge.

Americas Homes, Inc. (“Americas”) appeals the entry of a non-final order denying its motion for temporary injunction. In its motion, Americas requested the removal of a sign that Michael P. Esler and Angel Esler (“Eslers”) erected on their property. Americas alleged that the sign caused them to lose sales of homes it owned in the vicinity. The Eslers argued that the posting of the sign on their own property was constitutionally protected free speech. In denying the motion, the trial court relied upon Zimmerman v. D.C.A. at Welleby, Inc., 505 So. 2d 1371 (Fla. 4th DCA 1987). We affirm.

The Eslers purchased and lived on property bought from an affiliate of Americas. The property was classified as being in flood zone C, a category that normally is not subject to flooding. The Eslers lived on the property for two years without experiencing any flooding. After two years, the Eslers listed their property for sale. Shortly thereafter, a flooded condition occurred in the vicinity of the Eslers’ property. At the time of the temporary injunction, the cause of the flooding was unknown. A broker advised the Eslers that they would not be able to sell their property unless they fully disclosed the flooding to potential buyers. The Eslers complied with their broker’s request by posting a sign which read: “DUE TO LOCAL FLOODING THIS PROPERTY IS FOR SALE.” The Eslers also posted photographs of the area during flooding on the sign. Not only does the sign not disparage Americas, it does not mention its name or the name of its affiliate.

Americas sued to enjoin the Eslers because the sign adversely affected its real estate business. It argued that a temporary injunction should have been entered because the Eslers tortiously interfered with its business relationships. Specifically, Americas lost potential customers. After the Eslers posted their signs, there was a drastic reduction in home sales. Americas alleged irreparable harm because it could not determine how many of the lost sales were a direct result of the Eslers’ sign and that it had no adequate remedy at law. Americas also alleged the existence of a business relationship under which it had clear legal rights. Zimmerman, 505 So. 2d at 1372-73 (stating that developers demonstrated loss of potential sales for which remedy at law was inadequate because damages were speculative and unaseertainable). We find no merit in this argument, but we do find Zimmerman dis-positive.

In Zimmerman, the facts were much more egregious. Condominium owners who were upset with the developers of their building, picketed the sales office of the developer, displayed signs, and talked to pedestrians and prospective buyers of condominium units. Id. at 1372. As a result of their behavior, the developer lost prospective buyers. Id. at 1372-73. The appellate court allowed the condominium owners to picket peacefully and to display “signs, posters or other graphic material” because it was protected speech under the First Amendment and not subject to prior restraint regardless of whether the acts were tortious. Id. at 1376.

In the case before this court, the Eslers did not picket, confront potential Americas customers, or display signs away from their property. Freedom of speech is a fundamental personal right and liberty which is constitutionally protected under the First Amendment of the United Constitution and Article 1, Section 4 of the Florida Declaration of Rights. By placing the sign on their property in compliance with the instructions of their broker, the Eslers were exercising their right to free speech.

AFFIRMED.

PETERSON, C.J., and GOSHORN, J., concur.


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Citator

Cited By

  • Walters v. Kirby Blankenship, 931 So. 2d 137 (Fla. 5th DCA 2006)
    …relationship. With respect to the third element, I find that posting a “for sale by owner” sign on your own property cannot constitute “unjustified interference” with the relationships of others as a matter of law. Cf. Americas Homes, Inc. v. Esler, 668 So. 2d 239 (Fla. 5th DCA 1996) (homeowners posting of a for sale sign on their property was protected speech under the First Amendment and could not support a cause of action for tortious interference even where the sign stated that the owners were selling due…
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