ANTONIO DO COUTO ET UX., APPELLANTS,
v.
ITT COMMUNITY DEVELOPMENT CORPORATION, APPELLEE
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A Florida appellate court reversed a mandatory injunction requiring removal of a double garage built on a residential lot, finding that the trial court failed to balance equities and that ITT, the developer, had not established entitlement to such drastic relief despite the structure's violation of setback lines.
The court reversed the injunction, holding that the trial court abused its discretion by applying cold legal tenets without properly balancing the equities. Injunctive relief is drastic and should be granted cautiously and sparingly, and here ITT suffered no detriment while Do Couto faced a monetary loss of $10,000 to $22,000 and deprivation of the property's intended purpose.
[1] An injunction is a drastic remedy that should be granted cautiously and sparingly.
[2] A court should balance the equities when considering whether to grant an injunction.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The remedy of injunction is drastic and should be granted cautiously and sparingly.”
Establishes the legal standard that injunctive relief is an extraordinary remedy requiring careful judicial consideration.
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Join FLexlaw to unlock all legal intelligenceAntonio Do Couto, who had difficulty with English, discussed his intended use of a lot with two ITT salesmen—one in New Jersey and one on-site in Flor…
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PER CURIAM.
Appellant Antonio Do Couto who, a reading of the record readily reveals, experiences some difficulty with the English language, first discussed the purchase of a lot from appellee with appellee’s New Jersey salesman. Do Couto explained in detail his intended use of the lot and the salesman understood the intended use and purpose. That salesman arranged for Do Couto to meet with appellee’s on-site salesman in Florida who was also told, and understood, Do Couto’s needs and requirements. After visiting numerous lots in the company of the on-site salesman Do Couto was finally shown a corner lot which the salesman measured with the help of Do Couto and represented to Do Couto that the lot was suitable for Do Couto’s needs and purposes. In an abundance of precaution, before commencing construction, Do Couto conversed with his neighbors and finally went to the Flagler County Courthouse to ascertain whether there were any governmental permits which would be required before construction was commenced. Alas, however, it now appears that although Do Couto told two ITT salesmen exactly what he intended to build, that he made inquiry to determine whether there were any governmental permits required for such building, and he has now built exactly what he intended to build (a large double garage) a mandatory injunction has been entered by the trial court, at the instance of ITT, and not Do Couto’s neighbors, requiring removal of the improvement because it violates set-back lines. A witness called by ITT, one of its agents, who had never seen the offending improvement, testified that it did violence to ITT’s scheme of development. An architect, called by appellant, who had personally examined the lot, structure and surrounding area testified that the improvement was not offensive and damaged neither Do Cou-to’s lot nor the community. It is significant, we think, that the complainant is ITT and not Do Couto’s neighbors.
The remedy of injunction is drastic and should be granted cautiously and sparingly. Johnson v. Killian, 157 Fla. 754, 27 So. 2d 345 (1946). The learned trial judge applied cold legal tenents instead of engaging in a balancing of the equities. See Ortega Company v. Justiss, 175 So. 2d 554 (Fla. 1st DCA 1965). No detriment has been suffered by ITT nor will it enjoy any advantage by a removal of the improvement. On the other hand, by requiring Do Couto to remove the improvement he will have been deprived of the purpose for which the property was initially acquired, with the knowledge of ITT, and will suffer a monetary loss of between $10,000 and $22,000. Equity is not so cold.
Reversed and remanded with directions to vacate the mandatory injunction and to enter judgment in favor of appellants.
BOYER, C. J., and McCORD and MILLS, JJ., concur.
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Cited By
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Adoption HOT Line, Inc. v. State, 385 So. 2d 682 (Fla. 3d DCA 1980)…njunction because, as in this case, it disturbed the status quo and there was no showing of irreparable injury. See also Jennings v. Perrine Fish Market, Inc., 360 So. 2d 434, 435 (Fla. 3d DCA 1978); DoCouto v. ITT Community Development Corporation, 347 So. 2d 1059 (Fla. 1st DCA 1977), cert. enied, 357 So. 2d 186 (Fla.1978); State, Department of Health and Rehabilitative Services v. Artis, 345 So. 2d 1109 (Fla. 4th DCA 1977); Quadomain Condominium Association Inc. v. Pomerantz, 341 So. 2d 1041 (Fla. 4th DCA 19…
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Diefenderfer v. Forest Park Springs, 599 So. 2d 1309 (Fla. 5th DCA 1992)…Killian, 157 Fla. 754, 27 So. 2d 345 (1946); Waters v. School Bd. of Broward County, Florida, 401 So. 2d 837 (Fla. 2d DCA 1981); Goldberger v. Regency Highland Cond. Ass’n, Inc., 383 So. 2d 1173 (Fla. 4th DCA 1980); Do Couto v. ITT Comm. Dev. Corp., 347 So. 2d 1059 (Fla. 1st DCA 1977), cert. den., 357 So. 2d 186 (Fla.1978).…
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Davis v. Joyner, 409 So. 2d 1193 (Fla. 4th DCA 1982)…to issue an injunction in a particular case, a trial court must consider the totality of the circumstances and determine whether injunctive relief is necessary to achieve justice between the parties. See Do Couto v. ITT Community Development Corp., 347 So. 2d 1059 (Fla. 1st DCA 1977), cert. denied, 357 So. 2d 186 (Fla.1978); Ortega Co. v. Justiss, 175 So. 2d 554 (Fla. 1st DCA 1965). This well-settled maxim of equity jurisprudence is summarized in § 936 of the Restatement (Second) of Torts (1979): (1) The app…
Authorities Cited
- Oscar T. Johnson et ux. v. Alfred B. Killian et ux., 157 Fla. 754 (Fla. 1946)
- Mayer Groves, Inc. v. Grand Island Citrus Coop., Inc., 175 So. 2d 554 (Fla. 2d DCA 1965)
- Ortega Co. v. Justiss, 175 So. 2d 554 (Fla. 1st DCA 1965)