DOUGLAS HANNAH

v.

MALK HOLDINGS, LLC

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

McNULTY LOFTS CONDOMINIUM

ASSOCIATION, INC.,

Appellant,

v.

WRH McNULTY GARAGE, LLC,

Appellee.

No. 2D23-536

April 5, 2024

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; Thomas M. Ramsberger, Judge. Michael J. Labbee and Tyler A. Hayden of Phillips, Hayden & Labbee, LLP, St. Petersburg, for Appellant. Marie Tomassi and Charles M. Harris, Jr., of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., St. Petersburg, for Appellee. MORRIS, Judge.

McNulty Lofts Condominium Association, Inc. (McNulty), appeals from a nonfinal order granting WRH McNulty Garage, LLC's (WRH) motion for summary judgment in WRH's ejectment action, which had the effect of determining the right to WRH's immediate possession of property. Because we conclude that there exists a disputed issue of material fact related to the boundary line at issue, we reverse.

BACKGROUND

This case involves a thirteen-story building in St. Petersburg. WRH owns a public parking garage in the building while McNulty and the condominium association members own residential condominiums in the building. The developer of the building built the seven-floor parking garage first, followed by the construction of eighty-five residential condominiums situated above the parking garage. On December 13, 2005, the developer recorded a Declaration of Protective Covenants, Conditions, and Restrictions (Declaration). In that document, the developer divided the public parking garage, which is located on floors one through six of the building, from the residential condominiums and their common elements (including parking spaces), which were located on floors six through thirteen. The dispute in this case centers on the precise location of the dividing boundary line on the sixth floor between the public parking garage and the condominium property.

The original Declaration contained legal descriptions detailing the metes and bounds of both the public parking garage and the condominium property. In April 2006, the Declaration was amended to reflect a new metes-and-bounds description; a survey of the building was also attached. Subsequently, a new survey was prepared, leading to the Declaration being amended a second time in May 2006. Finally, in September 2014, the Declaration was amended a third time for the purpose of recognizing certain portions of the commercial property (e.g., the building roof and exterior walls and surfaces of the building that surrounded the condominium property) that had not been originally transferred to McNulty and its members by the developer. On some unknown date, the developer's contractor constructed a gate on the sixth floor which separates the parking area for McNulty and its members from the commercial parking spaces in the public portion of the garage. An elevator lobby was also constructed solely for the use of McNulty and its members.

WRH purchased the public garage in April 2018. In February 2022, WRH filed its ejectment action against McNulty. The basis for the action was WRH's claim that the gate was encroaching on its property and depriving it of the use of several parking spaces. WRH claimed that McNulty refused to move the gate and refused to compensate WRH for the use of the parking spaces. However, in its complaint, WRH did not allege who installed the gate or the date of installation. In response, McNulty denied that the gate was encroaching on WRH's property. McNulty also raised several affirmative defenses, including failure to state a cause of action, estoppel, adverse possession/prescriptive easement, and boundary by agreement or by acquiescence.

Thereafter, WRH filed a motion for summary judgment. In that motion, WRH argued that at some time after the third amendment to the Declaration was recorded, McNulty "redesigned its parking area and installed an access gate and elevator lobby on the shared sixth floor of the parking garage." WRH claimed that the third amendment to the Declaration and the condominium plat and survey revealed that the gate and elevator lobby encroached on WRH's property and prevented WRH from using several of its parking spaces. WRH sought an order requiring McNulty to move the gate as well as the elevator lobby. In support of its summary judgment motion, WRH relied on the affidavit of its executive vice president, John Withers. Withers' affidavit was based on his "personal knowledge and the documents, records, and communications made and maintained in the regular course of WRH's business operations." While Withers attested that the access gate was installed at some unknown date after 2005, he did not attest as to who installed the gate. He asserted that he personally inspected the location and that based on his review of the third amendment to the Declaration and the condominium plat, "it appears that the access gate and the adjacent elevator lobby encroach on WRH [p]roperty." McNulty filed its response to the motion, arguing that there were several disputed issues of material fact, such as the precise location of the boundary line and the identity of the party who installed the gate and elevator lobby. In support of its response, McNulty relied on the affidavit of Gary Engle, an investor of a corporate entity related to the original developer of the property. He asserted that both the original developer and its related corporate entities had been dissolved and were no longer registered in Florida. He stated that his affidavit was based on his personal knowledge as a former investor in the related corporate entity. Engle asserted that the developer intended for the elevator lobby and the adjacent gate and fence to designate the boundary line between the residential condominium property and the commercial property. Engle also asserted that the developer intended for the elevator lobby and the adjacent gate and fence as well as the parking spaces north of the gate and fence to be for the exclusive use of the condominium residents. McNulty also relied on the affidavit of its current board president who asserted that "[a]t all times material to this case, the lobby of the south elevator, the adjacent security gate, and the two adjacent parking spaces have been and are the delineation line between the sixth (6th) floor parking garage for the residential condominium property and the commercial property." She also asserted that "[a]t all times material to this case," those same areas as well as "all parking spaces north of the security gate and fence have been used exclusively by the Residential Condominium." Finally, she asserted that McNulty had always been responsible for and performed routine maintenance and cleaning of not only the security gate and fence, but also "the two adjacent parking spaces in conjunction with all spaces north of the security gate." As a further basis for denying the motion for summary judgment, McNulty argued that its affirmative defenses were supported by the affidavits and were unrefuted, thereby precluding entry of summary judgment.

At the summary judgment hearing, WRH argued that the boundary lines were set forth in the Declaration and amendments thereto and that the gate clearly encroached upon its property. WRH also contended that summary judgment was appropriate because a recorded legal instrument renders the affirmative defenses of boundary by acquiescence/agreement and equitable estoppel inapplicable.

McNulty maintained that there was a dispute about the boundary line. McNulty pointed to the affidavits it filed, arguing that they reflected that when the building was developed, the boundary line was intended to be in the location of the gate. McNulty also argued that the gate had been treated as the boundary line for almost twenty years. Ultimately, the trial court granted WRH's motion for summary judgment. The trial court concluded that "[t]he evidence admitted by the Court¹ does not present sufficient disagreement for submission of this case to a jury" and that there was "no genuine issue of material fact." The trial court rejected McNulty's affirmative defenses. In doing so, the trial court pointed to the Declaration and the amendments thereto as "establishing ownership of [WRH's] Property and the boundary line." The trial court found that WRH "provided recorded legal instruments establishing the identical, unchanged, and unambiguous boundary line since 2005, and it was not disputed in any meaningful manner by [McNulty]." The trial court also concluded that McNulty "failed to provide sufficient evidence" rebutting the recorded legal instruments, explaining that McNulty's "affidavits of individuals affiliated with" McNulty "did not provide sufficient disagreement such that it would require submission to a jury."

The trial court concluded that WRH was entitled to a judgment as a matter of law and ordered McNulty to remove the gate² within a specified period of time. The order provided that if McNulty failed to do so, WRH could remove the gate itself and then seek remuneration from McNulty

ANALYSIS

We review de novo an order granting summary judgment. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). "A movant is entitled to summary judgment if no reasonable finder of fact could return a verdict for the nonmoving party." G & G In- Between Bridge Club Corp. v. Palm Plaza Assocs., 356 So. 3d 292, 297 (Fla. 2d DCA 2023) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "We view the facts in the light most favorable to [the nonmoving party] and may not weigh the evidence or make credibility determinations." Id. Where there exists a disputed issue of material fact, a trial court may not enter a summary judgment. See HSBC Mortg. Corp. (USA) v. Mullan, 159 So. 3d 250, 253 (Fla. 2d DCA 2015). McNulty contends that there is a disputed issue of material fact related to the location of the boundary line based on the Declaration and its subsequent amendments and the condominium plat and survey. McNulty argues that the documents contain an internal inconsistency. In arguing for affirmance of the trial court's order, WRH also points to the Declaration, the third amendment, and the condominium plat and survey.

There is an internal inconsistency in the recorded legal instruments relied on by Withers and by the trial court.³ Attached to the Declaration