SHM CAPE HARBOUR, LLC

v.

REALMARK META, LLC, ET ALL

BLACK, Judge. SHM Cape Harbour, LLC, challenges the final judgment entered in favor of the Realmark Defendants.¹ These seven entities are the appellees who have appeared here and will be referred to collectively as the Realmark Defendants.

the final judgment and remand for proceedings consistent with this opinion.² Each entity owned a parcel of land in the planned development project known as Cape Harbour.³ At the time, all three entities were controlled by one person— William Stout. In 2014, in a self-described "deed in lieu of foreclosure" transaction, Marina—through Mr. Stout—agreed to deed the Marina Parcel to the CRE Entities.4 The conveyance did not include the parking facilities located on the META Parcel, which, by 2014, were owned and operated by entities also² In entering the final summary judgment on the 2003 easement, the trial court recognized that the two final summary judgments together constituted the final judgment as between SHM and the Realmark Defendants, rendering the case ripe for appeal.

controlled by Mr. Stout. The CRE Entities conveyed the Marina Parcel to SHM in 2017. SHM owns the Marina Parcel and is the successor in title to Realmark Cape Marina, LLC. Realmark Marina Grill, LLC, remains the owner of the Grill Parcel. Simplifying the facts, after SHM purchased the Marina Parcel, the Realmark Defendants began charging for parking in the facilities located on the META Parcel. SHM then brought an action against the Realmark Defendants, alleging in part that the 2003 reciprocal easement was being violated and seeking, among other claims, declaratory relief. In the motion for summary judgment as to SHM's easement claims, the Realmark Defendants argued that the 2003 easement is unambiguous and must be read in its favor.

The trial court agreed and granted the motion.⁵ Four months later, the Realmark Defendants moved for summary judgment on essentially the same facts, and the court later granted the motion.

and assigns; that the easement is extinguished and abandoned as to successors and assigns of META and is not an easement, perpetual or otherwise, over the META Parcel; and that the easement does not run with the land and does not in any way encumber the META Parcel. In its primary argument as to the judgment addressing the 2003 reciprocal easement, SHM directs this court's attention to three critical paragraphs within the easement and contends that the easement is unambiguous and must be read as binding upon META's successors, and therefore in favor of SHM, as a matter of law. SHM is correct; the easement is unambiguous and dictates that the benefits and burdens run with the land and are binding upon subsequent owners of any part of the land subject to the easement.

Thus, while the trial court correctly determined that the easement is unambiguous, it incorrectly construed and applied the unambiguous language as a matter of law.6 6 Because we conclude that reversal is required on the basis that the easement is unambiguous in favor of SHM, we do not address SHM's alternative argument that the trial court erred in weighing and considering extrinsic evidence to construe the easement except to note that an inquiry into intent cannot be done on summary judgment. See Frazier v. Schenck, 503 So. 2d 444,

The three paragraphs that are critical to the resolution of this issue are paragraphs¹, 4, and⁷ of the easement. Paragraph¹ has three subparagraphs, each setting forth one party's grant of rights. Paragraph 1(c), setting forth the rights META has granted to Marina and Grill, provides in relevant part: META hereby grants to Grill and Marina and to their respective guests, invitees, licensees, agents, tenants, employees, officers, directors, successors and assigns, a perpetual, non-exclusive easement for: (i) use of any parking areas that may now or hereafter be constructed, from time to time, within the META parcel; and (ii) vehicular ingress and egress over, through and across any roadways that may now or hereafter be constructed, from time to time, within the META parcel; and (iii) pedestrian ingress and egress over, through and across any walkways that may now or hereafter be constructed, from time to time, within the META Parcel. (Emphasis added.) Paragraphs 1(a) and 1(b) are identical in substance to 1(c) save for the respective positions of the parties: paragraph 1(a) sets forth the grant of rights from Marina to Grill and META, and paragraph 1(b) sets forth the grant of rights from Grill to Marina and META. 446 (Fla. 2d DCA 1987) (rejecting the contention "that the unrebutted affidavit of [the grantee/servient estate owner] setting forth his subjective intent is determinative" as to the scope of the easement on summary judgment).

Paragraph 4 provides: This Easement Agreement shall become effective upon its recordation in the Public Records of Lee County, Florida, and shall run with the land, regardless whether specifically mentioned in any subsequent deed or conveyance of all or a part of the land and shall be binding on all persons subsequently acquiring all or part of the land. This Easement Agreement may be amended or modified only by an instrument signed by the owners of each of the parcels. No amendment shall become effective prior to a duly executed and acknowledged copy being recorded in the Public Records of Lee County, Florida. (Emphasis added.) Finally, paragraph⁷ provides: "The Easement Agreement shall inure to the benefit of, and be binding upon, Marina and Grill and their respective successors and/or assigns." (Emphasis added.) The burden is on the party moving for summary judgment to prove "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c) (2020); accord Tank Tech, Inc. v. Valley Tank Testing, L.L.C., 244 So. 3d 383, 389 (Fla. 2d DCA 2018) (first citing Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966); and then quoting Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,

130 (Fla. 2000)).⁷ Tank Tech, 244 So. 3d at 389. Likewise, we review a trial court's construction of an easement de novo. Dep't of Transp. v. Fla. Gas Transmission Co., 126 So. 3d 1095, 1102 (Fla. 4th DCA 2012) (citing Terrill v. Coe,¹ So. 3d 223, 225 (Fla. 5th DCA 2008)). "The construction or interpretation of an easement is not evidentiary; it is a matter of law." Hillsborough County v. Kortum, 585 So. 2d 1029, 1031 (Fla. 2d DCA 1991) (citing Shadow W. Apartments, Ltd. v. Dep't of Transp., 498 So. 2d 589, 590 (Fla. 2d DCA 1986)).

That is, "it is not dependent upon the resolution of an evidentiary contest." Shadow W. Apartments, 498 So. 2d at 590-91 (citing Kotick v. Durant, 196 So. 802, 804 (Fla. 1940)).

And "[c]ourts must 'construe contracts in such a way as to give reasonable meaning to all provisions,' rather than leaving part of the contract⁷ We note that the summary judgment standard has changed since the trial court entered the judgments at issue in this case. The Florida Supreme Court amended Florida Rule of Civil Procedure 1.510(c) to adopt a new summary judgment standard. See In re Amends. to Fla. Rule of Civil Proc. 1.510, 309 So. 3d 192, 193-95 (Fla. 2020) (adopting the federal summary judgment standard).

The amendment, which became effective on May¹, 2021, does not affect our review. See Wilsonart, LLC v. Lopez, 308 So. 3d 961, 964 (Fla. 2020) (stating that the amendment to rule 1.510(c) applies prospectively).

useless." Publix Super Mkts., Inc. v. Wilder Corp. of Del., 876 So. 2d 652, 654 (Fla. 2d DCA 2004) (quoting Hardwick Props., Inc. v. Newbern, 711 So. 2d 35, 40 (Fla. 1st DCA 1998)).

Where the interpretation or construction of a written instrument and the legal effect to be drawn from the instrument is at issue, the appellate court is not restricted in its ability to reassess the meaning and effect of the instrument, and the appellate court may reach a conclusion contrary to the conclusion of the trial court. Smith v. Frontier Commc'ns Int'l, Inc., 805 So. 2d 975, 977 (Fla. 2d DCA 2001) (citing Angell v. Don Jones Ins. Agency, 620 So. 2d 1012, 1014 (Fla. 2d DCA 1993)). "[A]n easement is a right to use another's land 'for some particular purpose or purposes.' " Buie v. Bluebird Landing Owner's Ass'n, 172 So. 3d 519, 522 (Fla. 1st DCA 2015) (quoting One Harbor Fin. Ltd. v. Hynes Props., LLC, 884 So. 2d 1039, 1044 (Fla. 5th DCA 2004)). "[A]n appurtenant easement is a permanent easement running with the land and passes as an incident to it." Morris v. Winbar LLC, 273 So. 3d 176, 178-79 (Fla. 1st DCA 2019) (first citing McCorquodale v. Keyton, 63 So. 2d 906, 910 (Fla. 1953); and then citing Esbin v. Erickson, 987 So. 2d 198, 201 (Fla. 3d DCA 2008)).

In this case, the purpose of the easement is clear: to provide reciprocal parking rights and pedestrian access. There is no ambiguity as to intent. Cf. Buie, 172 So. 3d at 522 ("[W]here the wording is ambiguous such that the scope of the easement cannot be determined from the plain meaning of the language employed, the legal extent of the right must be ascertained from the intention of the parties [when the easement was created]." (second alteration in original) (quoting Walters v. McCall, 450 So. 2d 1139, 1142 (Fla. 1st DCA 1984))).

The language of paragraph¹ unequivocally establishes a perpetual easement in favor of the parties and their successors and assigns, and the language of paragraph 4 equally as unequivocally establishes that the easement is appurtenant and "binding on all persons subsequently acquiring all or part of the land." Despite the Realmark Defendants' argument that paragraph 4 is essentially meaningless as boilerplate and generic, it is neither, as proven by the multitude of cases interpreting easements that do not specify whether they are perpetual and run with the land. See, e.g., Devino v. 2436 E. Las Olas, LLC, 306 So. 3d 118, 119-20 (Fla. 4th DCA 2020); Dunes of Seagrove Owners Ass'n v. Dunes of Seagrove Dev., Inc., 180 So. 3d 1209, 1211 (Fla. 1st DCA 2015).

Moreover, even if paragraph 4 were boilerplate and generic, it must still be given effect and cannot be ignored. See White v. Fort Myers Beach Fire Control Dist., 302 So. 3d 1064, 1071 (Fla. 2d DCA 2020) ("[A]n interpretation of a contract which gives a reasonable, lawful and effective meaning to all of the terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect." (quoting Fla. Inv. Grp. 100, LLC v. Lafont, 271 So. 3d 1, 5 (Fla. 4th DCA 2019))).

Likewise, paragraph⁷ must be given effect, and while the Realmark Defendants focus on the absence of META from paragraph⁷ in their argument that the easement is unambiguous in their favor, they ignore paragraph⁷'s express language that the easement "inure[s] to the benefit of" Marina and Grill and their successors and assigns. The estate that receives the benefit of an easement is the dominant estate. Esbin, 987 So. 2d at 201. Here, the Marina and Grill Parcels are the dominant estates as to the easement over the META Parcel.

Thus, as the owner of a servient estate, META's grant of rights to Marina and Grill "inures to [their] benefit" as dominant estate owners and is appurtenant rather than in gross. See id.; see also Hagan v. Sabal Palms, Inc., 186 So. 2d

302, 311 (Fla. 2d DCA 1966) ("A covenant is said to run with the land when either the liability to perform it or the right to take advantage of it passes to the vendee or other assignee of the land." (quoting Burdine v. Sewell, 109 So. 648, 654 (Fla. 1926))); Morris, 273 So. 3d at 178 ("An easement is appurtenant when the right which it represents is attached to and belongs with some greater or superior right as a dominant estate." (quoting N. Dade Water Co. v. Fla. State Tpk. Auth., 114 So. 2d 458, 461 (Fla. 3d DCA 1959))).

Moreover, the easement does not prevent transfer. See Burdine, 109 So. at 654 ("[W]hile the grantee [(dominant estate)] may at any time relinquish his right of passage, without consulting the grantor [(servient estate)], the grantor's right to terminate it must be expressed in the instrument." (quoting Reese Howell Co. v. Brown, 158 P. 684, 687 (Utah 1916))). And the law of easements is clear: "Unless prevented by the terms of its creation, an easement appurtenant is transferred with the dominant property even if this is not mentioned in the instrument of transfer.

Therefore, a person who succeeds to the possession of the dominant estate is entitled to enjoy any easement appurtenant thereto." Behm v. Saeli, 560 So. 2d 431, 432 (Fla. 5th DCA 1990) (quoting Jon W. Bruce & James

W. Ely, Jr., The Law of Easements and Licenses in Land § 8.01 (1988)); see also Dianne v. Wingate, 84 So. 3d 427, 429-30 (Fla. 1st DCA 2012) ("The servient estate owner enjoys all rights to the property, except as limited by the easement, and may use the land burdened by the easement in any manner that does not unreasonably interfere with the lawful dominant use." (citing Kortum, 585 So. 2d at 1033)). Further, when SHM took title to the Marina Parcel, the Realmark Defendants were on notice that the easement appurtenant transferred with it because the easement had been recorded. See Jewett v. Leisinger, 655 So. 2d 1210, 1211 (Fla. 4th DCA 1995); Fla.

E. Coast Ry. v. Patterson, 593 So. 2d 575, 577 (Fla. 3d DCA 1992); see also Hayslip v. U.S. Home Corp., No. SC19-1371, 2022 WL 247073, at *2 (Fla. Jan. 27, 2022) (recognizing that pursuant section 695.11, Florida Statutes, "if an instrument is recorded in the official county records, such recording 'shall be notice to all persons' ").

Applying the law of easements and giving effect to the language of paragraph 4 in conjunction with the perpetual reciprocal rights specified in paragraph¹, paragraph⁷ can only be reasonably read to bind META's successors and assigns in addition to binding the successors and assigns of Marina and Grill. This construction gives effect to and reconciles all three operative paragraphs of the easement while complying with the law of easements and contract law otherwise. See, e.g., Moore v. State Farm Mut. Auto. Ins., 916 So. 2d 871, 877 (Fla. 2d DCA 2005) (stating that the court "will not interpret a contract in such a way as to render provisions meaningless when there is a reasonable interpretation that does not do so"); Anarkali Boutique, Inc. v. Ortiz, 104 So. 3d 1202, 1205 (Fla. 4th DCA 2012) ("A primary rule of contract construction is that where provisions in an agreement appear to conflict, they should be construed so as to be reconciled, if possible." (quoting Arthur Rutenberg Corp. v. Pasin, 506 So. 2d 33, 34 (Fla. 4th DCA 1987))); cf. Am. Med. Int'l, Inc. v. Scheller, 462 So. 2d 1, 7 (Fla. 1984) ("A true ambiguity does not exist merely because a contract can possibly be interpreted in more than one manner. Indeed, fanciful, inconsistent, and absurd interpretations of plain language are always possible. It is the duty of the [courts] to prevent such interpretations."); Alamo Fin., LP v. Mazoff, 112 So. 3d 626, 630 (Fla. 4th DCA 2013) (stating that substantively unreasonable interpretations do not render a contract ambiguous).

There is no way to give effect and meaning to both paragraph 4 and paragraph⁷ and reach the interpretation that the Realmark Defendants argued and the trial court reached. The three operative paragraphs of the easement, and the easement as a whole, unambiguously provide that the rights and benefits described are appurtenant and for the benefit of Marina's and Grill's successors, which include SHM. We therefore reverse the final summary judgment entered in favor of the Realmark Defendants as to the 2003 easement.⁸ On remand, the court shall vacate the final summary judgment and enter all orders necessary to ensure that the official records and any other place of recordation reflect the continued existence and binding effect of the 2003 reciprocal easement.

system. SHM alleged that the dispensers and monitoring system are above ground and located on the Marina Parcel and that the fuel lines run under both the Marina Parcel and the Grill Parcel. SHM contended that the fuel system cannot be separated into component parts. It also set forth certain undisputed facts, including that Marina conveyed the Grill Parcel to Grill on July 25, 2003, the same day that the entities entered into the reciprocal easement agreement but after the first steps in the purchase and construction of the fuel system had been completed, and that in June 2003, when the notice of commencement for construction of the fuel system was executed, Marina owned both the Marina Parcel and the Grill Parcel. The 2003 deed from Marina to Grill did not reference the anticipated fuel system. In their answer, the Realmark Defendants denied that there is a singular fuel system, that the fuel system was constructed on the Marina Parcel, and that the fuel dispensers, fuel monitoring system, and the majority of the fuel lines running from the dispensers to the tanks are located on the Marina Parcel. The Realmark Defendants also denied that Marina filed a notice of commencement with the state indicating that Marina owned the property upon which the fuel system was to be constructed, but they admitted that a storage tank facility registration form for the fuel system was filed following construction and installation of the fuel system. In its motion for summary judgment, the Realmark Defendants argued that it was undisputed that the fuel tanks and fuel lines are located on the Grill Parcel, that the fuel tanks and fuel lines are fixtures, and that no conveyance, easement, or license entitled SHM to encroach on the Grill Parcel. The Realmark Defendants addressed SHM's contention that the fuel system could not be separated into its component parts only tangentially through its argument that the fuel system was never conveyed to SHM. The motion rested on three suppositions: (1) the fuel tanks and lines are on the Grill Parcel; (2) the fuel tanks and lines are separable, such that there is not a singular fuel system; and (3) the fuel tanks and lines are fixtures. In opposition to the motion, SHM contended, as it had in its complaint, (1) that the location of the fuel tanks was in dispute, referencing and attaching record documents indicating that the fuel tanks were on both the Marina Parcel and the Grill Parcel; (2) that the fuel lines were on both the Marina Parcel and the Grill Parcel;

(3) that Marina had owned the singular fuel system and had conveyed it to the CRE Entites and that the CRE Entities subsequently conveyed the singular fuel system to SHM, attaching record documents establishing that real and personal property had been conveyed from Marina to Grill and from Marina to the CRE Entities and which identified fuel tanks as existing on the property being sold; and (4) that whether the fuel tanks and lines are fixtures is a factual determination.

The trial court found that underground fuel tanks and fuel lines were installed on the Grill Parcel in 2004. This is a disputed issue of material fact, which the Realmark Defendants appear to concede, in part: in their brief before this court, the Realmark Defendants state that "the court knew SHM had presented evidence showing a small portion of one tank may be on SHM's land." SHM presented record evidence suggesting that more than a small portion of one tank may be on the Marina Parcel; the evidence suggests that a significant portion of the tanks, including half of the anchors, the underground enclosure and support structures, and three of the ports to fill the tanks are located on the Marina Parcel.

SHM also presented evidence that the fuel lines are on both the Marina Parcel and the Grill Parcel.

The trial court also found that the fuel tanks and the fuel lines are annexed to the Grill Parcel and permanently affixed to the Grill Parcel for the purpose for which they are intended, such that the fuel tanks and fuel lines are fixtures of the Grill Parcel. But that is a factual determination which cannot be made at summary judgment: "The question of whether property is personalty or fixtures is a question of fact for determination by the trier of fact . . . ." Sears, Roebuck & Co. v. Bay Bank & Tr. Co., 537 So. 2d 1041, 1042 (Fla. 1st DCA 1989) (citing First Fed. Sav. & Loan Ass'n v. Stovall, 289 So. 2d 32, 33 (Fla. 1st DCA 1974)); see also Rompon Props., Inc. v. Langelier, 341 So. 2d 1068, 1069 (Fla. 2d DCA 1977) ("The characterization of property as chattel or fixture is a fact question to be determined according to the testimony and other evidence presented."); cf. Rally's Hamburgers, Inc. v. Dep't of Transp., 697 So. 2d 535, 537 (Fla. 1st DCA 1997) ("Appellant's claim that the equipment constituted 'trade fixtures' therefore created a material factual dispute that precluded the entry of partial summary final judgment . . . .").9 Moreover, the dispute over the location of the fuel tanks and the apparent fact that the fuel lines are on both parcels affects the determination of whether the tanks and lines are fixtures.10 9 The Realmark Defendants argue that the trial court's determination is of no moment because it included an "even if not fixtures" conclusion. But the fuel tanks and lines being fixtures is a premise upon which the Realmark Defendants sought summary judgment. And "appellate courts have repeatedly held that it is reversible error to enter summary judgment on a ground not raised with particularity in the motion." Rossman v. Wallick, 301 So. 3d 493, 494 (Fla. 5th DCA 2020); see also State Farm Auto. Ins. v. Lyde, 267 So. 3d 453, 461 (Fla. 2d DCA 2018) (declining to address alternative basis for summary judgment not raised below). 10 This is illustrated by considering the definition of a fixture. See Com. Fin. Co. v. Brooksville Hotel Co., 123 So. 814, 816 (Fla. 1929) ("A fixture is an article which was a chattel, but which, by being physically annexed or affixed to the realty by some one [sic] having an interest in the soil, becomes part and parcel of it.").

In this case, to which parcel the tanks and lines would be annexed is unclear, both based on their respective locations and on which entity had an interest in the soil. See, e.g., Zimring-McKenzie Constr. Co. v. City of Pinellas Park, 237 So. 2d 576, 578-79 (Fla. 2d DCA 1970); Country Manors Ass'n v. Master Antenna Sys., Inc., 458 So. 2d 835, 837 (Fla. 4th DCA 1984); Strickland's Mayport, Inc. v. Kingsley Bank, 449 So. 2d 928, 929 (Fla. 1st DCA 1984).

The fixture issue is also relevant to the trial court's determination that SHM did not have an easement related to the fuel tanks and fuel lines. Although we decline to specifically address SHM's arguments as to that determination, we note that our reversal may require reconsideration of whether an easement related to the fuel tanks and fuel lines exists.

Both of these findings—that the fuel tanks and fuel lines are on the Grill Parcel and fixtures thereto—necessarily require that the tanks and lines are separable components such that there is not a singular fuel system. But that is also a disputed issue of fact in this case. Cf. Country Manors Ass'n. v. Master Antenna Sys., Inc., 458 So. 2d 835, 837 (Fla. 4th DCA 1984) (holding that based on evidence and testimony presented "the underground system, together with the connections and installations within the walls," as a single system, was not a fixture).

Summary judgment "should only be granted 'where the facts are "so crystalized" that nothing remains but questions of law.' " Ventana Condo. Ass'n v. Chancey Design P'ship, 203 So. 3d 175, 183 (Fla. 2d DCA 2016) (quoting McCabe v. Fla. Power & Light Co., 68 So. 3d 995, 997 (Fla. 4th DCA 2011)). "If the record raises even the slightest doubt that an issue might exist, summary judgment is precluded." Schornberg v. Panorama Custom Home Builders, Inc., 972 So. 2d 243, 245 (Fla. 2d DCA 2007) (quoting Pasco v. City of Oldsmar, 953 So. 2d 766, 769 (Fla. 2d DCA 2007)).

There are very few facts clearly established as to the fuel system or its component parts.

Thus, summary judgment should not have been entered.

Based on the foregoing, the final judgment is reversed; on remand, the trial court shall conduct proceedings consistent with this opinion, including vacating the final judgment and ensuring that the public records indicate such vacatur. Reversed and remanded. SMITH and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication.