Third District Court of Appeal
State of Florida
Opinion filed February 22, 2023.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-2117
Lower Tribunal No. 20-8291
________________
AFP 103 Corp.,
Appellant,
vs.
Common Wealth Trust Services, LLC,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Valerie R.
Manno Schurr, Judge.
Carlton Fields, P.A., Christopher W. Smart (Tampa), Dean A. Morande
(West Palm Beach), Jose A. Loredo, Rachel A. Oostendorp and Michael G.
Zilber, for appellant.
Silver Law, P.A., and Scott A. Silver; Russo Appellate Firm, P.A., and
Paulo R. Lima, for appellee.
Mrachek Fitzgerald Rose Konopka Thomas & Weiss, P.A., and Manuel
Farach (West Palm Beach), for Florida Land Title Association, Inc., as
amicus curiae.
Ausley McMullen, and Benjamin B. Bush (Tallahassee), for Florida
Home Builders Association, as amicus curiae.
Before FERNANDEZ, C.J., and MILLER, and BOKOR, JJ.
FERNANDEZ, C.J.
Defendant AFP 103 Corporation (“AFP”) appeals the trial court’s
“Order Granting Third-Party Plaintiff Common Wealth Trust’s Motion for Final
Summary Judgment,” as well as the trial court’s Order denying AFP’s Motion
for Rehearing or Reconsideration. For the following reasons, we affirm the
order granting Common Wealth Trust’s motion for final summary judgment.
as well as the trial court’s order denying AFP’s motion for
rehearing/reconsideration.1
FACTS AND PROCEDURAL HISTORY
In 1981, Miami-Dade County approved the site plan for the property in
the underlying case. In 2004, South Florida Hotel, Inc., (“South Florida
Hotel”) a Florida corporation, was the fee simple title owner to all the land in
question in the underlying action. On March 29, 2004, South Florida Hotel
executed and recorded a “Declaration of Restrictive Covenants in Lieu of
Unity of Title.” The Declaration stated that the parcels would be subdivided
1
AFP made no arguments in its Initial Brief or Reply Brief concerning the
trial court’s order denying AFP’s motion for rehearing or reconsideration with
regard to MIMM. Thus, we do not address it.
2
into two separate lots: the “Non-Condominium Lot” and the “Mart
Condominium Lot.” It further stated that South Florida Hotel intended to
develop the Mart Condominium Lot “as a condominium and sell individuals
units therein.” The Declaration indicated that title to the Non-Condominium
Lot and the Mart Condominium Lot “will not remain in single ownership and
[South Florida Hotel] is therefore executing this instrument in order to assure
the County that the development of the Property with future multiple
ownership will not violate the Zoning Code of Miami-Dade County.” This
Declaration of Restrictive Covenants in Lieu of Unity of Title further stated,
in part:
In the event of multiple ownership subsequent to site plan or
amended site plan approval, each of the subsequent owners …
shall be bound by the terms, provisions, and conditions of this
instrument. Owner further agrees that it will not convey portions
of the Property to such other parties unless said portions of the
Property are bound by, and subject to, the Master Covenants,
which for purposes hereof Article Four of the Master Covenants
shall be deemed to be the “Easement and Operating Agreement”
required by Section 33-257 of the Code of Miami-Dade County.
..
Thereafter, on April 30, 2004, South Florida Hotel recorded the
“Declaration of Covenants, Conditions, Restrictions, Easements and
Operating Agreement for Miami International Merchandise Mart, Hotel,
Plaza and Convention Center” (“Declaration of Covenants”). In that
document, South Florida Hotel stated:
3
South Florida Hotel intends on selling individual Condominium
Units . . . located within the Mart Condominium Lot to multiple
purchasers. Further, [South Florida Hotel] may decide to further
subdivide the Non-Condominium Lot in the future. Consequently,
the Non-Condominium Lot and the Mart Condominium Lot will be
under separate ownership. Accordingly, [South Florida Hotel]
desires to grant and crate, on the terms and conditions
hereinafter set forth, the cross easements and covenants
hereinafter set forth in favor of and appurtenant to the Mart
Condominium Lot and the Non-Condominium Lot, all as more
particularly provided for herein.
Paragraph F of the Declaration of Covenants also referred to Miami-Dade
County Ordinance section 33-257, where it stated:
[South Florida Hotel] entered into that certain Declaration of
Restrictive Covenants in Lieu of Unity of Title recorded March 29,
2004… Paragraph 3 of such Covenant in Lieu and Miami-Dade
County Code Section 33-257 requires [South Florida Hotel] to
create an “Easement and Operating Agreement” as a condition
to multiple ownership of The Properties . . . Article Four hereof
shall serve as the required “Easement and Operating
Agreement.”
In addition, Article 4.2 of the Declaration of Covenants provided:
4.2 Parking within the Shared Essential Components. All of
the parking areas that are intended to be used by Condominium
Unit Owners and their guests, tenants, employees, licensees and
invitees, are located within the Shared Essential Components
which are part of the Non-Condominium Lot. Declarant, as the
initial NCL Owner [Non-Condominium Lot Owner], shall have,
and hereby reserves unto the NCL Owner, the exclusive right at
any time, to grant to specific Condominium Unit Owners or other
Owners or occupants of The Properties or to the Master
Association or to any Condominium Association the exclusive
right to use one or more of such parking spaces….NCL Owner
shall accommodate, within the Shared Essential Components,
the reasonable parking needs of the Mart Condominium Lot
4
which may be met by designation, assignment, valet parking or
otherwise. . .
Furthermore, Article 4.3 stated, in part:
4.3 Easements for Vehicular and Pedestrian Ingress/Egress
over portions of the Shared Essential Components and Shared
Facilities. …Declarant for itself and as the initial NCL Owner,
hereby reserves and covenants for itself and for all future Owners
of Lots within The Properties…and for all Condominium Unit
Owners…, that the Declarant, all Owners and all Condominium
Unit Owners…, shall have (a) a non-exclusive easement for
vehicular ingress and egress over all private streets and
roadways located from time to time within the Shared Essential
Components…, and (b) a non-exclusive easement for pedestrian
access over all lobbies, paths, walkways and stairwells located
from time to time within the Shared Essential Components or the
Shared Facilities which serve or are intended for the use of the
Mart Condominium Lot, the Condominium Unit Owners or the
general public….
Also, Article 4 provided that according to Miami-Dade County Code of
Ordinance section 33-257, South Florida Hotel “shall obtain the written
approval of the Office of the County Attorney prior to recording any
Supplemental Declaration in the Public Records of the County which amends
or modifies the provisions of this Article 4.” South Florida Hotel is the only
entity that signed the Declaration of Covenants.
On October 3, 2005, South Florida Hotel executed a Warranty Deed
and recorded it on October 12, 2005. With this Warranty Deed, South Florida
Hotel conveyed all of the Mart Condominium and a portion of the Non-
Condominium Lot. The Non-Condominium Lot was divided into the
5
Undeveloped Lot and the Convention Lot. The buyer/grantee of the
Condominium Lot and the Convention Lot was a corporation known as SF
Hotels, Inc. Along with the land, the Warranty Deed alleged to convey South
Florida Hotel’s “rights pursuant to that Declaration of Covenants, Conditions,
Restrictions, Easements and Operating Agreement for Miami International
Merchandise Mart, Hotel, Plaza and Convention Center, dated April 29, 2004
… as modified by the Supplemental Declaration of Covenants and
Conditions, dated September 30, 2005, to be recorded in the Public Records
of Miami-Dade County, Florida prior to or concurrently with this deed.”
On November 1, 2005, South Florida Hotel recorded a Supplemental
Declaration to the Declaration of Covenants, Conditions, Restrictions,
Easements and Operating Agreement for Miami International Merchandise
Mart, Hotel, Plaza and Convention Center.” The first paragraph of the
Supplemental Declaration states that it “is made as of the ___ day of
September, 2005, by SOUTH FLORIDA HOTEL INC., a Florida
corporation….” All three signature pages state, “The foregoing instrument
was acknowledged before me this ___ day of September, 2005, ….” It was
signed only by South Florida Hotel. It was also signed, on pages labeled
“Consents,” by two entities associated with the Condominium Lot: “MIMM
Master Association, Inc.” and “MIMM Condominium Association, Inc.” The
6
Supplemental Declaration was not signed by SF Hotels, Inc., who was the
grantee of the Condominium Lot and the Convention Lot. Furthermore, no
subsequent property owner signed the Supplemental Declaration.
The Supplemental Declaration further stated: “Declarant desires to
supplement, modify and amend the Declaration…(b) to allocate certain
rights and obligations between the owners of [the Convention and
Undeveloped] Lots, (c) to provide for all of the rights of the Declarant and the
NCL owner to remain with the Owner of the [Convention] Lot, and (d) as
otherwise set forth herein.” The Supplemental Declaration alleged to modify
portions of Article 4 of the Declaration of Covenants, which is the “Easement
and Operating Agreement” (amending Articles 4.1(a) and 4.2). In addition,
with respect to parking, the Supplemental Declaration tried to amend the
Declaration of Covenants. The Supplemental Declaration required the
Undeveloped Lot owner to maintain a minimum number of parking spaces
for the other parcels to use. This condition was not present in the original
April 30, 2004 Declaration of Covenants. The undated Supplemental
Declaration was recorded on November 1, 2005.
On August 11, 2009, AFP acquired the Convention Lot from SF Hotels,
Inc. Almost ten years later, on June 27, 2019, Common Wealth acquired the
Undeveloped Lot from South Florida Hotel after foreclosure. Thus, when the
7
proceedings below began, Common Wealth owned the Undeveloped Lot,
and AFP owned the Convention Lot. The Condominium Lot was owned by
multiple individual condominium unit owners, who are represented by the
MIMM Condominium Association (“MIMM”).
In February 2020, Common Wealth put a fence around the
Undeveloped Lot. MIMM’s counsel mailed a letter to Common Wealth’s
counsel alleging that condominium owners were allowed to park on the
Undeveloped Lot and demanded that they be granted access. Common
Wealth’s counsel responded in March 2020 that the easement claimed by
MIMM was invalid.
Thereafter, in a related proceeding between MIMM and Common
Wealth, MIMM sued Common Wealth in April 2020 for damages, declaratory
and equitable relief. MIMM sued, in part, for a declaratory judgment that
Common Wealth had a duty “to maintain the Undeveloped Lot for [MIMM’s]
use as a parking lot of no less than 583 spaces” and requested that Common
Wealth be required to remove all barriers surrounding the lot. Common
Wealth moved to dismiss the complaint for failure to state a claim, which the
trial court granted without prejudice for MIMM to file an amended complaint.
MIMM filed an amended complaint in October 2020. On December 22, 2020,
MIMM’s counsel moved to withdraw as counsel due to irreconcilable
8
differences. While the motion to withdraw was pending, Common Wealth
filed a Counterclaim on December 29, 2020. The Counterclaim alleged one
claim to quiet title and sought as relief, in part, to “quiet and remove any and
all clouds on title with respect to MIMM’s purported easement rights in the
Undeveloped Lot.” Common Wealth also moved for a summary judgment on
January 7, 2021.
On January 29, 2021, while MIMM’s counsel’s motion to withdraw was
still pending, MIMM filed its Answer and Affirmative Defenses to Common
Wealth’s counterclaim. In February 2020, the trial court granted the motion
to withdraw and gave MIMM twenty days to hire new counsel. The record on
appeal does not show whether MIMM hired new counsel or not. On March
23, 2021, after the deadline for MIMM to secure new counsel passed, the
trial court held a hearing on Common Wealth’s motion for summary
judgment. The trial court entered final summary judgment for Common
Wealth on MIMM’s direct claim against Common Wealth, as well as on
Common Wealth’s counterclaim against MIMM. MIMM did not appeal this
judgment.
Thereafter, on April 21, 2021, Common Wealth filed a Third-Party
Complaint against AFP to clear up any alleged easement rights that AFP
might claim in Common Wealth’s Undeveloped Lot. The Third-Party
9
Complaint requested that the court enter judgment against AFP to remove
any clouds on title regarding AFP’s purported easement rights in the
Undeveloped Lot. Common Wealth also filed a motion for summary
judgment against AFP contending it was entitled to judgment because there
were no genuine issues of material fact regarding 1) the invalid easement
documents that AFP might rely upon in support of its claim; and 2) South
Florida Hotel’s failure to comply with the necessary conditions precedent that
were required by the easement documents to convey easement rights.
Next, AFP filed its Answer, Affirmative Defenses, and Counterclaim on
June 21, 2021. In its counterclaim, AFP sought a declaration that AFP had
the right of access to the Undeveloped Lot for ingress and egress, as well as
for parking. It further sought a declaration that Common Wealth was required
to maintain the Undeveloped Lot for AFP to use as a parking lot of at least
583 spaces.
On August 5, 2021, AFP filed its opposition to Common Wealth’s
motion for summary judgment. Also on August 5, 2022, AFP filed a Motion
for Rehearing and Reconsideration requesting that the trial court reconsider
its April 7, 2021 order entering final summary judgment against MIMM, which
MIMM never appealed. After holding a hearing in August 2021, the trial court
denied AFP’s rehearing motion due to procedural issues with timing and
10
AFP’s standing to file such a motion. The trial court entered its written order
on August 25, 2021. 2
On August 25, 2021, the trial court held a hearing on Common
Wealth’s motion for summary judgment. After hearing counsels’ arguments,
the trial court granted Common Wealth’s motion. The court entered its written
order on September 30, 2021, granting final summary judgment to Common
Wealth on its complaint against AFP, as well as on AFP’s counterclaim
against Common Wealth. The trial court stated:
[T]here are no disputed issues of material fact on Common
Wealth Trust’s Third-Party Complaint or on AFP’s Counterclaim
because: (1) AFP did not establish or ever prove that it had
easement rights due to the invalidity of the Easement
Documents; and (2) the original grantor’s failure to comply with
necessary conditions precedent required by the Easement
Documents to properly create or convey easement rights.
AFP did not move for rehearing, but then filed this appeal. AFP also appeals
the trial court’s October 6, 2021, order denying AFP’s motion for
reconsideration and rehearing, which dealt with the summary judgment the
trial court entered against MIMM.
ANALYSIS
2
AFP sought reconsideration of this order, which the trial court denied on
October 6, 2021.
11
Because this is an appeal from a final judgment based on an order
granting summary judgment, this Court applies a de novo standard of review.
Volusia Cty., v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla.
2000).
AFP first argues that the trial court erred in granting summary judgment
to Common Wealth because the easement documents and deeds are valid
and enforceable. However, the rule in Florida is that one cannot, while being
owner of both a dominant and servient estate, grant an easement to oneself
in one’s own property. One Harbor Fin. Ltd. Co. v. Hynes Properties, LLC,
884 So. 2d 1039 (5th DCA 2004); Hensel v. Aurilio,
417 So. 2d 1035, 1038
(Fla. 4th DCA 1982); Morris v. Garcia,
224 So. 2d 268 n. 1 (Fla. 3d DCA
2017).
In One Harbor, Hoffenberg, a property owner, built a 75,000 square-
foot building on one of two adjacent parcels of land that he owned. The parcel
of land with the building was now owned by One Harbor Financial Limited
Company (“One Harbor”), the defendant. One Harbor, 884 So. 2d at 1041.
Hoffenberg needed to comply with zoning regulations that required thirteen
additional parking spots for his new building, so he executed an “easement
agreement” that alleged to create a parking easement on the adjacent parcel
of land that he owned. Id. Hoffenberg is the only party that signed the
12
“easement agreement.” Id. He then sold the parcel with the alleged parking
easement (the servient parcel) without referencing the easement and
recorded the “easement agreement” eight days after he sold the parcel. Id.
The trial court found that at the time the agreement was recorded,
Hoffenberg owned both parcels of land, thus Hoffenberg’s attempt to create
an easement over his own property was void ab initio. Id. at 1042-43. One
Harbor appealed, and the Fifth District Court of Appeal affirmed. The
appellate court held, “Hoffenberg, as fee simple owner of both parcels, did
not possess the legal right to grant an easement over his own property.” Id.
at 1044. Similarly, here, because South Florida Hotel was the fee simple
owner of all the parcels, it did not possess the legal right to grant an
easement over its own property to itself.
In addition, Miami-Dade County Code of Ordinance section 33-257
provides the specific procedures that landowners or developers must follow
to describe future easements over their land in multi-parcel developments,
“where multiple buildings are proposed for a single site.” Section 33-257,
titled “Unity of title; covenant in lieu thereof” provides that a developer or
landowner shall provide a “declaration of restrictive covenants” and the
declaration “shall contain the following necessary elements ….” § 33.257(2).
One of the necessary elements is contained in subsection (c) which states:
13
(c) That in the event of multiple ownerships subsequent to site
plan approval, that each of the subsequent owners shall be
bound by the terms, provisions and conditions of the declaration
of restrictive covenants. The owner shall further agree that he or
she will not convey portions of the subject property to such other
parties unless and until the owner and such other party (parties)
shall have executed and mutually delivered, in recordable form,
an instrument to be known as an “easement and operating
agreement” . . .
§ 22-257(2)(c), Miami Dade County, Fla., Code of Ordinances. That section
further provides, “These provisions of the easement and operating
agreement shall not be amended without prior written approval of the Office
of the County Attorney.” § 33-257(2)(c). In addition, in Persaud Properties
FL Investments, LLC v. Town of Fort Myers Beach,
310 So. 3d 493, 496 (Fla.
2d DCA 2020), the Second District Court of Appeal stated:
Moreover, zoning ordinances, like statutes that are in derogation
of the common law, “will not be interpreted to displace the
common law further than is clearly necessary. Rather, the courts
will infer that such a statute [or ordinance] was not intended to
make any alteration other than was specified and plainly
pronounced.”…“[T]he presumption is that no change in the
common law is intended unless the statute is explicit in this
regard.”
Id. (internal citations omitted). We agree with Common Wealth’s contention
that section 33-257 clarifies the common law rule set out in One Harbor; thus,
it must be narrowly construed. Accordingly, the rule in Florida that a property
owner cannot create an easement over his own property is not superseded
by section 33-257.
14
Importantly, here, the evidence does not support that the requirements
of section 33-257 were followed; thus, the alleged easement was void ab
initio. South Florida Hotel, the property owner that executed the declarations,
did not include the language from section 33.257(2)(c) that South Florida
Hotel “will not convey portions of the subject property to such other parties
unless and until the owner and such other party (parties) shall have executed
and mutually delivered, in recordable form, an instrument to be known as the
‘easement and operating agreement’ . . . .” Also, there is no evidence in the
record that the subsequent owners of the subject parcels executed and
delivered the Easement and Operating Agreement. To meet the
requirements of section 33-257, SF Hotels had to execute and record the
“Easement and Operating Agreement” when South Florida Hotel, the original
owner and developer, conveyed the Condominium Lot and Convention Lot
in October 2005 through the Warranty Deed. It did not. In fact, SF Hotels did
not execute any of the documents that AFP now claims created an easement
in its favor. As previously noted, the Declaration of Covenants contains the
signatures of MIMM Master Association, Inc. and MIMM Condominium
Association, Inc. Those were the two corporations related to the
Condominium Lot. In addition, the copy of the October 2005 Warranty Deed,
is signed only by South Florida Hotel, the original grantor. It is not signed by
15
SF Hotels, which is the corporation to which South Florida Hotel conveyed
the Convention Lot.
Furthermore, there is no evidence in the record that AFP executed an
“Easement and Operating Agreement” when it acquired the Convention Lot
in August 2009. Nor is there evidence in the record that Common Wealth
executed an “Easement and Operating Agreement” when it acquired the
Undeveloped Lot in June 2019. As previously stated, the only party that
executed the “Easement and Operating Agreement” is the original grantor,
South Florida Hotel. In the Declaration of Covenants, which South Florida
Hotel executed on April 29, 2004, Paragraph F of this document stated that
Article 4 of this Declaration “shall serve as the required ‘Easement and
Operating Agreement’”, as required by section 33-257 of the Miami-Dade
County Code. Accordingly, it is clear from the record that neither AFP nor
Common Wealth executed the “Easement and Operating Agreement.”
AFP contends that the Supplemental Declaration supports its position
that an easement was created. It alleges that the Warranty Deed conveyed
the Convention Lot from South Florida Hotel to SF Hotels. The Warranty
Deed states that the conveyance is made “pursuant to [the Declaration of
Covenants]…as modified by the Supplemental Declaration.” AFP contends
that the Supplemental Declaration “confers a parking easement requiring the
16
Undeveloped Lot Owner to maintain 583 parking spaces for use by the
owners of the Convention Lot and Condominium Lot.”
However, Common Wealth is correct that the Supplemental
Declaration was null and void. Consequently, AFP cannot use the
Supplemental Declaration to support an easement. First, if South Florida
wanted to create an easement with the Supplemental Declaration, it failed
because the Supplemental Declaration was not signed by SF Hotel when it
acquired the Convention Lot and the Condominium Lot in 2005. Section 33-
257 of the Miami-Dade County Code required SF Hotels to sign the
Supplemental Declaration.
Second, section 33-257 states the that the provisions of the easement
and operating agreement “shall not be amended without prior written
approval of the Office of the County Attorney.” § 33-257(2)(c). Accordingly,
to modify or create another easement, SF Hotel needed the written approval
from the County Attorney’s Office to amend the original “Easement and
Operating Agreement,” something SF Hotel did not do. AFP argues that prior
written approval from the Office of the County Attorney was not required
because the Supplemental Declaration did not modify or amend the
easements. However, in the third “WHEREAS” paragraph on the first page
of the Supplemental Declaration, it states: “Declarant desires to supplement,
17
modify and amend the Declaration.” Further, in the first paragraph on the
second page of the Supplemental Declaration, it states: “NOW
THEREFORE, … Declarant hereby supplements, modifies and amends the
Declaration as follows: . . . .” Accordingly, AFP’s argument on this point is
not supported by the record.
Moreover, the October 5, 2005 Warranty Deed did not convey any
easement in the Undeveloped Lot because at the time the Warranty Deed
was executed, the Supplemental Declaration was not in effect. The Warranty
Deed states that the Convention and Condominium Lot parcels were being
conveyed “pursuant to that certain Declaration of Covenants, Conditions,
Restrictions, Easements and Operating Agreement . . . as modified by the
Supplemental Declaration of Covenants and Conditions dated September
30, 2005, to be recorded in the Public Records of Miami-Dade County,
Florida, prior to or concurrently with this deed.” However, as Common
Wealth correctly contends, there is no document in the record on appeal with
that date of September 30, 2005. The Supplemental Declaration in the
record on appeal does not have a date on it in the first paragraph on the first
page of the document. The date is left blank. The day is also left blank on
the signature pages.
18
The Supplemental Declaration was recorded on November 1, 2005,
while the Warranty Deed was signed on October 3, 2005 and then recorded
on October 12, 2005. Accordingly, we agree with Common Wealth that the
Warranty Deed did not incorporate any easement from the Supplemental
Declaration because, as Common Wealth contends, a document cannot
incorporate by reference the terms of another document that has not yet
come into existence. 2000 Presidential Way, LLC v. Bank of N.Y. Mellon,
326 So. 3d 64, 70 (Fla. 4th DCA 2021) (“[T]he doctrine of incorporation by
reference is generally limited to documents that actually exist at the time of
the incorporation. . . . ‘Incorporation by reference pulls existing material into
the new, incorporation contract; it does not push material terms into
nonexistent, as-yet-unassented-to future contracts.’”).Thus, the
Supplemental Declaration was not effective prior to its recordation.
With respect to AFP’s argument that the trial court erred in granting
summary judgment in Common Wealth’s favor despite AFP’s affirmative
defenses of estoppel, laches and waivers, and unclean hands, the trial court
properly entered summary judgment on these affirmative defenses. All three
equitable defenses fail under the Fifth District Court of Appeal’s opinion in
One Harbor. One Harbor was the defendant trying to enforce the alleged
easement. It raised various affirmative defenses, including equitable
19
estoppel.
Id. at 1042. The Fifth District Court of Appeal found that the alleged
easement was void ab initio. The One Harbor Court stated:
One Harbor urges this court to employ its equitable powers to
give effect to the intent of the parties in view of fifteen years of
uncontested use of the property, and to declare the easement
valid, but such remedy is beyond this court’s power. Courts of
equity simply have no power to issue rulings which they consider
to be in the best interest of justice without regard to established
law.
Id. at 1045. Similarly, here, the trial court found that the alleged parking
easement was void ab initio, and thus, correctly ruled that summary
judgment was proper on AFP’s affirmative defenses which were equitable in
nature.
Finally, turning to AFP’s contention that the trial court erred in granting
summary judgment in Common Wealth’s favor on AFP’s implied easement
counterclaim, AFP is not entitled to an implied easement as a matter of law.
First, AFP argues that the trial court granted the summary judgment on
AFP’s counterclaim without notice. At the end of the summary judgment
hearing on August 25, 2021, the trial court stated it was granting summary
judgment in Common Wealth’s favor. AFP’s counsel did not argue to the trial
court that the summary judgment should not be limited to Common Wealth’s
direct claim. Thus, the trial court’s “Order Granting Third-Party Plaintiff
Common Wealth Trust’s Motion for Final Summary Judgment” stated that
20
summary judgment was entered in favor of Common Wealth and against
AFP on Common Wealth’s Third-Party Complaint, “and on AFP’s
Counterclaim.” AFP did not move for rehearing to allow the trial court to
correct any error AFP was contending the trial court made, which AFP was
required to do. “If the error is one that first appears in the final order, the
aggrieved party must bring it to the judge’s attention by filing a motion for
rehearing.” Hamilton v. R.L. Best Intl.,
996 So. 2d 233, 234 (Fla. 1st DCA
2008). Thus, because the issue was not raised below, AFP cannot raise the
issue now for the first time on appeal. Dade Cty. Sch. Bd. V. Radio Station
WQBA,
731 So. 2d 638 (Fla. 1999); see also Clear Channel Commc’ns, Inc.
v. City of N. Bay Village,
911 So. 2d 188, 190 (Fla. 3d DCA 2005) (“The
purpose for requiring a contemporaneous objection is to put the trial judge
on notice of a possible error, to afford an opportunity to correct the error early
in the proceedings, and to prevent a litigant from not challenging an error so
that he or she may later use it for tactical advantage.”).
Second, AFP cites to Faussner v. Wever,
432 So. 2d 100 (Fla. 2d DCA
1983), in support of its contention that the trial court did not give AFP notice
that it was going to address AFP’s counterclaim. However, Faussner is
distinguishable. In Faussner, the plaintiff was a buyer in a real estate contract
who sued the seller for specific performance.
Id. at 101. The seller
21
counterclaimed for liquidated damages.
Id. The seller moved for summary
judgment on the plaintiff’s specific performance claim but not on the seller’s
counterclaim for liquidated damages. The trial court granted summary
judgment in the defendant seller’s favor on the plaintiff’s specific
performance claim, as well as on the defendant’s counterclaim for liquidated
damages. The plaintiff appealed.
Id.
The Second District Court of Appeal reversed the summary judgment
on the counterclaim based on lack of notice, concluding that the plaintiff had
no indication the liquidated damages counterclaim would be addressed at
the hearing. The appellate court noted that “the counterclaim was not
addressed by any motion . . . .”
Id. at 102. Here, AFP was asserting the
counterclaim, and AFP made the trial court aware of AFP’s counterclaim
before the trial court held the hearing on Common Wealth’s motion for
summary judgment. AFP argued in its response to Common Wealth’s motion
for summary judgment that summary judgment should not be entered in
Common Wealth’s favor because AFP had asserted counterclaims for
prescriptive easement and implied easement. Accordingly, unlike the plaintiff
in Faussner, AFP cannot claim to not have notice when Common Wealth
raised the issue at the summary judgment hearing. Thus, the trial court did
not err in granting summary judgment on AFP’s counterclaim.
22
For these foregoing reasons, we affirm the trial court’s “Order Granting
Third-Party Plaintiff Common Wealth Trust’s Motion for Final Summary
Judgment.” AFP is not entitled to an easement by virtue of the Declaration
of Covenants because that document is invalid as a matter of law. In
addition, the Supplemental Declaration also fails for the reasons previously
discussed. We also affirm the trial court’s order denying AFP’s motion for
rehearing or reconsideration.
Affirmed.
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