Third District Court of Appeal
State of Florida
Opinion filed February 16, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0486
Lower Tribunal No. 18-34686
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8425 Biscayne LLC,
Appellant,
vs.
Pinnacle Towers LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David C.
Miller, Judge.
Ballaga, Freedman & Atkins, LLP, and Leonard C. Atkins IV, for
appellant.
Gunster, Yoakley & Stewart, P.A., and Jack J. Aiello, and Christopher
P. Benvenuto (West Palm Beach), for appellee.
Before LINDSEY, GORDO, and BOKOR, JJ.
LINDSEY, J.
Appellant 8425 Biscayne LLC (plaintiff below) appeals the trial court’s
order entering final summary judgment in favor of Appellee, Pinnacle Towers
LLC (defendant below). We affirm.
8425 Biscayne owns property on Biscayne Boulevard, and Pinnacle
operates a cellular communication tower on a portion of that property. In
2000, 8425 Biscayne’s predecessor in interest, TNA Palms, Inc., entered
into an agreement with Pinnacle to burden the property. Paragraph 14 of
the agreement provides:
14. Signal Blockage and/or Transmission Interruption.
[Pinnacle] is utilizing the Easement Property for the purpose of
transmitting and receiving telecommunication signals to and from
the Easement Property. [Pinnacle] and [TNA] recognize that the
purpose behind the Easement would be frustrated if the
telecommunication signals were partially or totally blocked or if
an obstruction were built that would cause interference with such
transmission. [TNA], its successors and assigns, shall use its
best efforts to prevent the occurrence of any of the foregoing
upon or within any property owned by, or otherwise under the
control of [TNA], and shall promptly undertake any remedial
action necessary to do so.
Even though the agreement was properly recorded, 8425 Biscayne
claims it only realized that the property was burdened in 2018 after two
prospective buyers backed out of the sale upon discovering paragraph 14 of
the agreement.
As a result, 8425 Biscayne filed the underlying action for quiet tile and
declaratory relief seeking to declare paragraph 14 “vague, indefinite, and
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unenforceable.” It subsequently moved for summary judgment based on the
agreement’s language. Pinnacle filed a response and included a cross-
motion for summary judgment arguing that paragraph 14, despite its drafting,
was an enforceable restrictive covenant. After a hearing, the trial court
agreed and granted final summary judgment for Pinnacle. 8425 Biscayne
timely appealed.
This Court reviews an order granting summary judgment de novo.
Volusia County v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130
(Fla. 2000). 8425 Biscayne makes three arguments on appeal. Each is
addressed in turn.
First, 8425 Biscayne argues, as it did below, that paragraph 14 is an
unreasonable easement. We disagree. Paragraph 14 provides that 8425
Biscayne will use its best efforts to prevent interference with Pinnacle’s
telecommunication signals. This is plainly a restrictive covenant because it
limits what 8425 Biscayne may do with its property. See 20 Fla. Jur. 2d
Easements § 5 (2021 ed.) (“The distinction between an easement and
a restrictive covenant is that an easement allows its holder to go upon the
land possessed by another, and a covenant imposes upon the possessor
restrictions on how he or she may use the land.”).
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Second, 8425 Biscayne now argues that there is a genuine issue of
material fact as to whether the “easement” is reasonable. But this was an
action for declaratory relief, not enforcement. A factual issue will only arise
if and when Pinnacle chooses to enforce the covenant. See Robertson v.
Countryside PUD Residential Homeowners,
751 So. 2d 674, 677 (Fla. 5th
DCA 2000) (“The enforcement of restrictive covenants cannot be
unreasonable or arbitrary.”).
Lastly, 8425 Biscayne argues that the trial court erred in granting final
summary judgment in Pinnacle’s favor because its cross-motion was not
noticed for hearing and therefore resulted in an ambush. We disagree for
two reasons. First, 8425 Biscayne’s motion for summary judgment was
noticed for hearing. See Fla. R. Civ. P. 1.510(b). Second, Pinnacle’s cross-
motion filed in response to 8425 Biscayne’s motion did not raise additional
issues requiring resolution. Cf. Wizikowski v. Hillsborough County,
651 So.
2d 1223, 1224 (Fla. 2d DCA 1995) (reversing entry of summary judgment in
favor of Hillsborough County where its cross-motion was not noticed for
hearing and the motion raised additional issues that needed to be resolved).
Affirmed.
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