
    John Ted BAREFIELD and Robbie N. Barefield, Petitioners, v. LAFAYETTE OAKS HOMES ASSOCIATION, INC., Respondent.
    No. AO-174.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1982.
    Rehearing Denied Dec. 16, 1982.
    Douglas A. Daniels and F. Alan Cummings of Holland & Knight, Tallahassee, for petitioners.
    Melvin R. Horne of Horne, Rhodes, Jaf-fry, Horne & Carrouth, Tallahassee, for respondent.
   MILLS, Judge.

Barefield petitions for a writ of common law certiorari to review an appellate decision by the Circuit Court. We grant the petition and reverse the Circuit Court’s af-firmance of the County Court.

The Marts, residents of the Lafayette Oaks subdivision, began construction of a horse pen at their residence near the Bare-field residence. The plans were submitted to the Lafayette Oaks Homes Association’s Architectural Control Committee. The committee rejected the plans twice, finding them violative of the covenants controlling the subdivision. Construction continued. The Association did not take any action to prevent the construction although clearly authorized and funded to do so.

Barefield then brought an action which resulted in an order requiring the pen to be torn down.

Barefield next brought suit against the Association seeking damages. He alleged that the covenants, articles, and bylaws of the Association imposed a contractual duty on it to enforce the covenants. Its breaching this duty forced Barefield to enforce the covenants himself. His damages would be the expenses of litigation, i.e., costs and attorney’s fees.

The County Court dismissed the claim ruling that there was no duty imposed on the Association and that there was no right of attorney’s fees in the original action. The Circuit Court, as an appellate court, affirmed without an opinion. .

To dismiss, the trial court must have interpreted the contract, as evidenced by the covenants, articles, and bylaws, as unambiguously not imposing a duty on the Association to enforce its covenants. Virtually identical covenants have been interpreted as imposing a requirement of reasonableness on a homeowners’ association in its decision to waive subdivision restrictions. Nelle v. Loch Haven, 413 So.2d 28 (Fla.1982). At the very least, Barefield has alleged unreasonable behavior by the Association. There is no reason not to enforce the Association’s duty of reasonableness by contract. Furthermore, the contract does not seem to us to clearly impose no duty on the Association. Barefield should have been allowed to produce evidence as to the interpretation of the contract.

The County Court erred in dismissing the Barefield’s complaint and the Circuit Court erred in affirming this dismissal. In so erring, the Circuit Court has denied the Barefields their opportunity to prove their case. This denial of their day in court is a departure from the essential requirements of law. Compare State v. Live Oak, Perry & Gulf B.R., 70 Fla. 564, 70 So. 550 (1915).

The petition is granted, the order of the Circuit Court is quashed, and the cause is remanded with instructions to remand to the County Court for proceedings consistent with this opinion.

WIGGINTON, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I respectfully dissent. In granting the respondent’s motion to dismiss, the county court interpreted the applicable provisions of the declaration of covenants and restrictions of the Lafayette Oaks Homes Association, Inc., as follows:

The covenants and restrictions run with the Plaintiff’s land and leave descretion [sic] in the Defendant to enforce the covenants should the Defendant so choose. If the Defendant declines to enforce or waive the covenants and restrictions then the individual property owners may do so at their own expense.

By dismissing the complaint, the court was necessarily required to interpret certain provisions of the covenants and restrictions which were attached to the complaint. Among other things, article three, section 3 of the covenants provides:

Enforcement of these covenants and restrictions shall be by an appropriate civil proceeding against any person or persons violating or attempting to violate, any covenant or restriction, either to restrain violation or to recover damages, and against the land to enforce any lien created by these covenants; and failure by the Association or any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.

Additionally, article four vests in the developer “the sole right ... to release any building lot from any part of the covenants and restrictions which have been violated ... if the Developer, in its sole judgment, determines such violation to be a minor or insubstantial violation.” Finally, article seven waives enforcement of the covenants and restrictions should the architectural committee fail to approve or disapprove plans and specifications within 30 days after the plans have been submitted to it or no suit is commenced to enjoin construction prior to completion of construction. The trial court, in interpreting these provisions, held that the petitioner was not entitled to the litigation expenses which he incurred in the suit brought against the Marts to enforce the covenants. This ruling was affirmed on direct appeal to the circuit court, acting in its appellate capacity.

I do not think it necessary to address any question in a petition for common law cer-tiorari as to whether or not the trial court’s interpretation was erroneous or correct. We are asked only whether the judgment, and hence the interpretation, exceeded the essential requirements of the law. In my opinion it did not. Were this a direct appeal from the trial court’s judgment, I might agree with the majority that the trial court’s interpretation was arguably at variance with the language employed in the covenants. This, however, is not our function in determining whether extraordinary relief should be granted. The rule is well recognized that “the mere fact that a Circuit Court in its appellate capacity errs ... does not necessarily mean that it has either exceeded its jurisdiction or departed from the essential requirements of the law.” Grandin Lake Shores Association, Inc. v. Underwood, 351 So.2d 1131, 1132 (Fla. 1st DCA 1977). Nor will the writ generally issue to correct an erroneous application of the law. City of Winter Park v. Jones, 392 So.2d 568, 570 (Fla. 5th DCA 1980). By granting the writ, the majority has in essence permitted a second appeal, thereby distorting the purpose of certiorari review.  