NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
5F, LLC; and MOUNT MASSIVE, )
LLC, )
)
Appellants, )
)
v. ) Case Nos. 2D17-949
) 2D17-1155
BOCA GRANDE ISLE LLC; THREE ) CONSOLIDATED
SISTERS ISLE LLC; REDFISH )
ALLEY, LLC; OSPREY ALLEY LLC; )
GORDON BURNS; MARIE BURNS; )
ELIZABETH GHRISKEY; JOHN )
SAMUELS and DIANE SAMUELS, )
as trustees of the JS RESIDENTIAL )
TRUST AGREEMENT DATED )
DECEMBER 13, 2012, and the DS )
RESIDENTIAL TRUST AGREEMENT )
DATED DECEMBER 13, 2012; )
ANN S. AIKENS, MARTIN L. KATZ, )
and JOSEPH AVIV, as trustees of )
the ROBERT AIKENS REVOCABLE )
TRUST; and ALAN PIKE, as trustee )
of the CHAD RUSTAN PIKE 2012 )
REVOCABLE TRUST, )
)
Appellees. )
________________________________ )
)
BOCA GRANDE ISLES PROPERTY )
OWNERS ASSOCIATION, INC., )
)
Appellant, )
)
v. )
)
BOCA GRANDE ISLE LLC; THREE )
SISTERS ISLE LLC; REDFISH )
ALLEY LLC; OSPREY ALLEY LLC; )
ALAN PIKE, as trustee of the CHAD )
RUSTAN PIKE 2012 REVOCABLE )
TRUST; REYNOLDS GUYER; BOB )
HALL; JOHN JACKOBOICE; LYNN )
KIEFFER; STEVE KIEFFER; JAY )
PROOPS; LINDA WIGGIN; THREE )
SISTERS HOMEOWNERS )
ASSOCIATION, INC.; RON STRICH; )
CHRIS JOHNSON; and JEFF )
DEATERLY, )
)
Appellees. )
)
Opinion filed October 12, 2018.
Appeal from the Circuit Court for Lee
County; John E. Duryea, Jr., Judge.
Jason A. Lessinger and Bradley J.
Ellis of Icard, Merrill, Cullis, Timm,
Furen & Ginsburg, P.A., Sarasota, for
Appellants 5F, LLC and Mount
Massive, LLC.
J. Matthew Belcastro of Henderson,
Franklin, Starnes & Holt, P.A., Fort
Myers, for Appellant Boca Grande
Isles Property Owners Association,
Inc.
John A. DeVault, III, Michael E.
Lockamy, and John G. Woodlee of
Bedell, Dittmar, DeVault, Pillans &
Coxe, P.A., Jacksonville; and Richard
W. Hawthorne of Richard W.
Hawthorne, Jacksonville, for Appellee
Boca Grande Isle LLC.
David B. Weinstein and Ryan T.
Hopper of Greenberg Traurig, P.A.,
Tampa, for Appellees John Samuels,
Diane Samuels, Gordon Burns, and
Marie Burns.
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Christopher L. Ulrich of Cummings
& Lockwood, LLC; and Marve Alaimo
of Porter, Wright, Morris, & Arthur,
Naples, for Appellee Elizabeth
Ghriskey.
No appearance for remaining
Appellees.
ROTHSTEIN-YOUAKIM, Judge.
We affirm the trial court's entry of final summary judgment in favor of the
plaintiffs1 on count one of the complaint and the plaintiffs/counterclaim defendants2 on
count one of the amended counterclaim in Case No. 15-CA-001157. The restrictions on
the use of Lot 99 of Boca Grande Isles (BGI), as set forth in the 1974 Declaration of
Restrictions that binds all of the lot owners of BGI (the Declaration), run with the land
and may be amended only upon the unanimous consent of all of the lot owners of BGI.
See Van Loan v. Heather Hills Prop. Owners Ass'n,
216 So. 3d 18, 23 (Fla. 2d DCA
2016) ("Because there was no express delegation of authority to the [property owners
association] to amend the restrictive covenants, the restrictive covenants can only be
amended by the consent of all the property owners in the subdivision." (citing Roth v.
1BocaGrande Isle LLC, Three Sisters Isle LLC, Redfish Alley LLC, and
Osprey Alley LLC. (During the pendency of this appeal, the property owned by Boca
Grande Isle LLC was transferred to Alan Pike as trustee of the Chad Rustan Pike 2012
Revocable Trust. The appellants' motion to join the trustee as an appellee to these
proceedings was granted.)
2The counterclaim defendants included the four plaintiffs plus additional
counterclaim defendants Gordon and Marie Burns, Elizabeth Ghriskey, John and Diane
Samuels as trustees of the JS and DS Residential Trusts, and Robert Aikens. (Mr.
Aikens passed away during the course of the litigation and his property was transferred
to Martin L. Katz and Joseph Aviv as trustees of the Robert Aikens Revocable Trust.)
-3-
Springlake II Homeowners Ass'n, 533 So. 2d 819, 820 (Fla. 4th DCA 1988))). The
plaintiffs' and counterclaim defendants' later purchases of their lots did not effect a
novation of the Declaration to the extent that it sets forth restrictions that run with the
land and constitute a contract among all of the lot owners. Cf. Jakobi v. Kings Creek
Vill. Townhouse Ass'n,
665 So. 2d 325, 327 (Fla. 3d DCA 1995) (holding, in the context
of personal contractual obligations between a townhouse owner and the master and
townhouse associations, that the transfer of a townhouse deed, "rather than effecting a
mere assignment, constituted a novation of the bylaws and declaration of covenants
and restrictions as between the Master Association, the Townhouse Association, and
the owner" (emphasis added)).
Because we hold that affirmance is warranted on this basis, we do not
comment on the trial court's alternative conclusion, as set forth at paragraphs 30
through 36 of the magistrate judge's thorough and well-reasoned report and
recommendation of September 1, 2016.
Affirmed.
NORTHCUTT and SALARIO, JJ., Concur.
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