5D07-3143 Kirschner v. Baldwin

State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-3143

Case Date: 07/28/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2008

ELEANOR KIRSCHNER, Appellant, v. JOHN BALDWIN AND GINA BALDWIN, Appellees. ________________________________/ Opinion filed August 1, 2008 Appeal from the Circuit Court for Brevard County, James Earp, Judge. Thomas C. Houck, Cocoa Beach, for Appellant. Allen P. Whitehead of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellee. EVANDER, J. Eleanor Kirschner brought an action for injunctive relief and damages against her neighbors, John Baldwin and Gina Baldwin, alleging that the Baldwins had constructed a new garage in violation of their subdivision's recorded restrictions. After a non-jury trial, the trial court found that the subdivision's restrictions imposed a 35-foot rear setback requirement on the Baldwins' property and that their garage encroached almost 15 feet into the setback. Notwithstanding these findings, the trial court found that Case No. 5D07-3143

Kirschner was not entitled to injunctive relief because: (1) she lacked standing to bring

her action; (2) her claim was barred by the administrative res judicata doctrine; (3) she had waived any right to bring her claim by not objecting to the construction of the garage at an earlier date; (4) she was estopped to enforce her claim because of her inaction; and (5) it would be inequitable to require the Baldwins to remove the garage. The trial court dismissed Kirschner's claim for damages because of her failure to introduce evidence upon which a monetary award could be based. We affirm, without discussion, the trial court's dismissal of Kirschner's claim for damages. However, we reverse the trial court's denial of Kirschner's claim for injunctive relief and remand for further proceedings. Kirschner and the Baldwins reside on adjoining lots in the Coquina Point Subdivision in Malabar, Florida. It is undisputed that both lots are subject to the

subdivision's Declaration of Restrictions, Limitations, Conditions, and Agreements ("Declaration"). The Baldwins' residence is located on the southwest corner of Coquina Terrace and Rocky Point Road. The Indian River flows alongside Rocky Point Road

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