16205 CAPTIVA DRIVE, LLC. VS RICHARD LEVINSON, AS CO-TRUSTEE OF THE 16201 CAPTIVA DRIVE LAND TRUST DATED MARCH 29, 2010 AND PATRICIA LEVINSON AS CO-TRUSTEE OF THE 16201 CAPTIVA DRIVE LAND TRUST

SIXTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 6D2023-0552 Lower Tribunal No. 19-CA-002370 _____________________________

16205 CAPTIVA DRIVE, LLC, Appellant, v. RICHARD LEVINSON, as Co-Trustee of the 16201 CAPTIVA DRIVE LAND TRUST DATED MARCH 29, 2010 and PATRICIA LEVINSON, as Co-Trustee of the 16201 CAPTIVA DRIVE LAND TRUST, Appellees. _____________________________

Appeal from the Circuit Court for Lee County. Joseph C. Fuller, Judge.

August¹, 2025

GANNAM, J.

16205 Captiva Drive, LLC appeals a final summary judgment for the 16201 Captiva Drive Land Trust, terminating the LLC’s easements to access and use the Trust’s dock.¹ Because a genuine dispute of material fact was evident on the face of the Trust’s summary judgment motion, we reverse.

2

I.

A.

The parties own adjacent properties on Captiva Island in Lee County, Florida.² The LLC property is situated on the West (Gulf of America) side of the island and the Trust property primarily on the East (Roosevelt Channel) side. The Trust’s predecessor in title granted perpetual easements to the LLC’s predecessor to access and use the Trust property’s dock into the channel. The easement agreement requires the LLC to pay the Trust half of the dock maintenance and repair costs “within thirty (30) days after receipt of written demand for payment,” and provides that the LLC’s failure to pay as required will result in immediate termination of the easements. The agreement does not, however, contain any notice provision or otherwise specify where or how the Trust must send its payment demands to the LLC. According to the Trust’s summary judgment motion, in 2019, the Trust sent a payment demand by FedEx that was not paid within thirty days. The Trust sent the payment to: 16205 CAPTIVA DRIVE LLC 211 CORNICHE RD E ADIA

PO BOX 3600

ABU DHABI

UNITED ARAB EMIRATES

ABU DHABI, ABU DHABI 3600 AE

. . . . Name and Address of Current Registered Agent:

COLM, LANIGAN

16205 CAPTIVA DRIVE

CAPTIVA, FL 33924 US

. . . . Authorized Person(s) Detail: Title MR Name

LANIGAN, COLM

Address 211 CORNICHE ROAD EAST

ATTN COLM LANIGAN ADIA 27B

City-State-Zip: ABU DHABI ABU DHABI 3600 Unlike the address found on the Property Appraiser website, both the mailing and authorized person addresses filed in the LLC’s annual report include “ATTN[:] COLM LANIGAN.” And despite the Trust’s presenting these multiple addresses for the LLC in its summary judgment motion, the Trust claimed in its motion, “It is undisputed that the notice required under the Easement was sent to, and received at, the address for Lanigan set forth in the public records” (emphasis added).

B.

The trial court’s order granting summary judgment is incorporated into the judgment on appeal and mirrors the Trust’s summary judgment motion. The court found it undisputed that the Trust mailed the payment demand to “the only address the LLC provided” (emphasis added) to the State of Florida and the Property Appraiser. The court found it inconsequential that Lanigan did not receive the demand because “someone with apparent authority” signed for the payment demand “at the address provided by the LLC” (emphasis added). Ultimately, the court concluded, “By mailing the written demand to the address the LLC provided to the State of Florida and to the Lee County Tax Collector [sic³], the Trust complied with its notice obligations under the Easement Agreement” (emphasis added).

3 The Trust’s evidence included LLC address information from only the Florida Secretary of State and the Lee County Property Appraiser. Thus, the trial court’s reference to “the Lee County Tax Collector” is likely a scrivener’s error.

II.

We review summary judgments de novo. Pial Holdings, LTD v. Riverfront Plaza, LLC, 379 So. 3d 547, 550 (Fla. 6th DCA 2024). Florida’s summary judgment standard now aligns with the federal standard. Fla. R. Civ. P. 1.510(a); In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 74 (Fla. 2021) (adopting federal summary judgment rule and standard and citing “Celotex trilogy,” Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)). In applying the new standard, we “must be guided not only by the Celotex trilogy, but by the overall body of case law interpreting federal rule 56.” See In re Amends., 317 So. 3d at 76. Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). “A party asserting that a fact cannot be . . . genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, . . . affidavits or declarations, . . . or other materials . . . .” Fla. R. Civ. P. 1.510(c)(1)(A). Thus, “[t]he moving party bears the initial burden of identifying those portions of the record demonstrating the lack of a genuinely disputed issue of material fact.” Brevard Cnty. v. Waters Mark Dev.

III.

The Trust failed to carry its initial summary judgment burden to demonstrate the absence of any genuine dispute of material fact because a genuine dispute of the most material fact—the LLC’s receipt of the Trust’s payment demand—is evident on the face of the Trust’s summary judgment motion. Thus, even considering only the facts presented in the Trust’s motion, a reasonable jury could return a verdict for the LLC, and it was error for the trial court to grant the Trust summary judgment. According to the text of the easement agreement, the LLC’s receipt of the payment demand was a condition precedent to its obligation to pay, and the LLC’s failure to pay the demand after receipt was a condition precedent to termination of the easements. See Alvarez v. Rendon, 953 So. 2d 702, 708 (Fla. 5th DCA 2007) (defining condition precedent). In the context of the 1996 easement agreement, the ordinary meaning of “receipt” is “[t]he fact of being or having been received.”

4 “Receive” appears in the Sixth Edition (1990) of Black’s (“To take into possession and control; accept custody of; collect.”), and then not again until the Tenth Edition (2014).

5 In the answer brief, the Trust argues for the first time that the fact of the LLC’s receipt is presumed upon proof that the Trust’s payment demand was “‘properly addressed, stamped, and mailed’” (quoting Progressive Am. Ins. Co. v. Kurtz, 518 So. 2d 1339, 1341 (Fla. 5th DCA 1987)). Whether the Trust “properly addressed” the demand, however, is disputed on the face of the Trust’s summary judgment motion. And, even if the Trust could successfully raise the presumption, it may be rebutted by evidence disputing receipt, which is also evident on the face of the Trust’s motion. See Scutieri v. Miller, 584 So. 2d 15, 16 (Fla. 3d DCA 1991) (“In other words, the denial of receipt does not automatically overcome the presumption but instead creates a question of fact which must be resolved by the trial court.”). Thus, for summary judgment purposes, the presumption does not establish the LLC’s receipt of the Trust’s demand as an undisputed fact.

IV.

The Trust failed to carry its initial summary judgment burden because a genuine dispute of material fact was evident on the face of its summary judgment motion. We reverse the summary judgment and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

NARDELLA and BROWNLEE, JJ., concur.

Christopher D. Donovan, of Donovan Appellate Law, PLLC, Bonita Springs, for Appellant.

Theodore L. Tripp, Jr., Joel W. Hyatt, and Meredith A. McBride, of Hahn Loeser & Parks, LLP, Fort Myers, for Appellees.

Elisé K. Yarnell, of Hahn Loeser & Parks, LLP, Columbus, Ohio, Pro Hac Vice, for Appellees.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING

AND DISPOSITION THEREOF IF TIMELY FILED