Beach Towing Servs., Inc. v. Sunset Land Assocs., LLC

• Decision Date: 28 August 2019
• Docket Number: Nos. 3D18-1837 & 3D18-2168,s. 3D18-1837 & 3D18-2168
• Citation: 278 So.3d 857
• Parties: BEACH TOWING SERVICES, INC., et al., Appellants, v. SUNSET LAND ASSOCIATES, LLC, et al., Appellees.
• Court: Florida District Court of Appeals

278 So.3d 857

BEACH TOWING SERVICES, INC., et al., Appellants,

v.SUNSET LAND ASSOCIATES, LLC, et al., Appellees.

Nos. 3D18-1837 & 3D18-2168

District Court of Appeal of Florida, Third District.

Opinion filed August 28, 2019

Levine & Partners, P.A., and Allan S. Reiss, Miami, for appellants.

Buckner + Miles, Miami, and David M. Buckner, and Brett E. von Borke, Coral Gables; Podhurst Orseck, P.A., and Stephen F. Rosenthal, Miami, for appellee Sunset Land Associates, LLC.

Before SALTER, LINDSEY and MILLER, JJ.

PER CURIAM.

Beach Towing Services, Inc. and other defendants appeal a final declaratory judgment regarding the language of a restrictive covenant within a 2003 warranty deed. The plaintiff seeking declaratory relief is Sunset Land Associates, LLC, and the affected property is located on Purdy Avenue and Bay Road in Miami Beach, Florida.

Declaratory relief was granted via an order granting partial summary judgment and a partial final declaratory judgment, and this appeal followed. We agree with the carefully-reasoned, ten-page order granting in part and denying in part the motion for partial summary judgment filed by the appellee, Sunset Land Associates, LLC. Finding no error in that order, we affirm and incorporate it here:

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

This Cause came before the Court upon Plaintiff, Sunset Land Associates, LLC's, Motion for Partial Summary Judgment, filed May 29, 2018, seeking partial summary judgment on Counts X (meaning), XI (duration), and XII (ambiguity) of the Second Amended Complaint ("SAC") as to all Defendants.¹ Plaintiff filed this action to obtain declaratory relief as to its rights with regard to a covenant on certain specific parcels of real property.

BACKGROUND

Plaintiff owns three parcels of land located at 1759 Purdy Avenue 1747 Purdy Avenue, and 1738 Bay Road, Miami Beach, more specifically described as Lot 6 and the West ½ of Lot 5, Block 16, ISLAND VIEW SUBDIVISION, according to the map or plat thereof, recorded in Plat Book 6, Page(s) 115, of the Public Records of Miami-Dade County, Florida ("Property"). On July 3, 2003, Defendants Mark Festa, individually and as trustee, and Maureen Festa, conveyed the Property to Gert Elfering by warranty deed, recorded in Official Records Book 21412, Page 1665 of Official Records of Miami-Dade County. That warranty deed included a restrictive covenant ("Covenant"), which states:

This property is being conveyed by the Grantor to the Grantee subject to the Grantee agreeing that the property will not be used as a parking lot, storage yard facility or for a garage or tow truck company. This covenant shall run with the land.

After the Property changed hands several times, Plaintiff acquired it on April 23, 2014. Plaintiff intends to improve the Property and would like to be able to include a parking garage as part of any such improvement. Defendants take the position that the Covenant prohibits the construction of a parking garage on the Property. Defendants accordingly created doubt about Plaintiff's rights, and in particular its rights under the deed to the Property, and Plaintiff brought this action to remove that doubt.

With regard to the specific terms used in the Covenant, the Code of the City of Miami Beach defines "parking lot" as "an at-grade, level area used for the parking of motor vehicles." Code of the City of Miami Beach, Florida ("City Code"), § 114-1.² Moreover, there is no dispute among the parties that the term "parking lot" as used in the Covenant means a surface parking lot. Deposition of Ralph Andrade ("Andrade Dep.") at 134:20-25. There is also no dispute among the parties that the term "storage yard facility" as used in the Covenant means a property used to store delinquent vehicles, towed vehicles, box trucks, and the like. Deposition of Mark Festa ("Mark Festa Dep.") at 149:12-15, 150:14-21. There is similarly no dispute among the parties that the term "tow truck company" as used in the Covenant means a company that provides towing services. Andrade Dep. at 139:13-18.

Therefore, the dispute in this case turns on the meaning of the term "garage" as used in the Covenant. Plaintiff contends that the term "garage" as used in the Covenant, when properly read in context, is actually "garage company," and means a business where vehicles are mechanically repaired, rebuilt, or constructed for compensation. Defendants contend that the Covenant's prohibition of a "garage" on the Property means a parking garage.

The American Heritage Dictionary defines "garage" as:

1. A building or indoor space in which to park or keep a motor vehicle.

2. A commercial establishment where cars are repaired, serviced, or parked.

American Heritage Dictionary, https: //www.ahdictionary.com, last accessed August 4, 2018. The City Code contains three different definitions for uses that contain the word "garage," to wit:

Garage, accessory means an accessory building designed or used for parking for the main permitted structure.

Garage, commercial means a building or a portion thereof, used primarily for indoor parking of vehicles for compensation.

Garage, mechanical means any premise where vehicles are mechanically repaired, rebuilt or constructed for compensation.

City Code, § 114-1.

ANALYSIS

Florida's Declaratory Judgment Act provides in pertinent part that "[a]ny person claiming to be interested or who may be in doubt about his rights under a deed ... may have determined any question of construction or validity arising [thereunder] ..."). Fla. Stat. § 86.021 ; see also Fla. Stat. § 86.011 ; Lambert v. Justus, 335 So. 2d 818, 820 (Fla. 1976) (declaratory judgment is the appropriate method for determining the "construction of certain restrictions on ... property and a declaration that these restrictions are invalid and unenforceable"), receded from on other grounds inHiggins v. State Farm Fire and Casualty Co., 894 So. 2d 5 (Fla. 2004). Defendants' insistence that the Covenant's inclusion of the word "garage" prevents Plaintiff from constructing a parking garage on its Property created "doubt as to the existence or nonexistence of some right or status, and [Plaintiff] is entitled to have such doubt removed." Flagship Real Estate Corp. v. Flagship Banks, Inc., 374 So. 2d 1020, 1021 (Fla. 2d DCA 1979). That is all that is required to invoke this Court's jurisdiction under the Declaratory Judgment Act. Id. A declaratory judgment action is the proper vehicle for a party to seek a determination of its developmental rights. See19650 NE 18th Avenue, LLC v. Presidential Estates Homeowners Assoc., Inc., 103 So. 3d 191 (Fla. 3d DCA 2012). Therefore, this Court has subject matter jurisdiction over this controversy.

"When interpreting a contract, the court must first examine the plain language of the contract for evidence of the parties' intent." Perez-Gurri Corp. v. McLeod, 238 So. 3d 347, 350 (Fla. 3d DCA 2017) (citation omitted).³ "The expressed intent of the parties is the controlling factor. Intent unexpressed will be unavailing, and substantial ambiguity or doubt must be resolved against the person claiming the right to enforce the covenant." Moore v. Stevens, 90 Fla. 879, 106 So. 901, 903 (1925), quoted in McInerney v. Klovstad, 935 So. 2d 529, 532 (Fla. 5th DCA 2006). Expressed intent is that found on the face of the covenant "as shown by the language of the entire instrument in which the covenant appears." Moore, 106 So. at 903, see alsoWilson v. Rex Quality Corp., 839 So. 2d 928, 930 (Fla. 2d DCA 2003) ("In construing restrictive covenants the question is primarily one of intention, and the fundamental rule is that the intention of the parties as shown by the agreement governs, being determined by a fair interpretation of the entire text of the covenant"). Moreover, it is well settled that a single contractual term must not be read in isolation. Id. Rather, the goal is to arrive at a reasonable interpretation of the entire agreement, and to construe contractual terms "in such a manner as to give them a meaning consistent with the apparent object of the parties in entering into the contract." Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 302 So. 2d 404, 407 (Fla. 1974).

The Court's first task in construing the Covenant is to determine whether it is unambiguous or ambiguous on its face. SeeTeam Development Land, Inc. v. Anzac Contractors, 811 So. 2d 698, 699-700 (Fla. 3d DCA 2002) (the initial determination of whether a contractual term is ambiguous is a question of law for the court) (citations omitted). In so doing, the Court applies the pertinent rules of construction.

First, " ‘[a]s a general proposition, the use of different language in different contractual provisions strongly implies that a different meaning was intended.’ " Fowler v. Gartner, 89 So. 3d 1047, 1048 (Fla. 3d DCA 2012) (quoting Kel Homes, LLC v. Burris, 933 So. 2d 699, 703 (Fla. 2d DCA 2006) ). With regard to the specific connectors contained in the Covenant, "the Florida Supreme Court has explained that .... ‘the word ‘or’ is a disjunctive participle that marks an alternative.’ " Blue Heron Beach Resort Developer, LLC v. Branch Banking & Tr. Co., 6:13-CV-372-ORL-36, 2014 WL 2625255, at *7 (M.D. Fla. June 12, 2014) (quoting Rudd v. State ex rel. Christian, 310 So. 2d 295, 298 (Fla. 1975) ). In addition, the series-qualifier canon provides that, "when there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts § 19, at 147-51 (2012). Therefore, in the absence of some other indication, such as a determiner, the modifier reaches the entire enumeration. Id. at 147-48. So, for example, in the phrase "a wall or fence that is solid," the postpositive modifier "that is solid" should be read as modifying both "wall" and "fence" to mean that

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