Marathon Sunsets, Inc. v. Coldiron , 2016 Fla. App. LEXIS 4031 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed March 16, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-1886
Lower Tribunal No. 11-230-M
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Marathon Sunsets, Inc., etc.,
Appellant/Cross-Appellee,
vs.
Greg Coldiron, et al.,
Appellees/Cross-Appellants.
An appeal from the Circuit Court for Monroe County, Timothy J. Koenig,
Judge.
Franklin D. Greenman (Marathon), for appellant/cross-appellee.
Horan, Wallace & Higgins, LLP, and Darren M. Horan (Key West), for
appellees/cross-appellants.
Before WELLS, SHEPHERD and LAGOA, JJ.
SHEPHERD, J.
Dissatisfied with the results obtained below in an action brought by
neighbors to enforce certain deed restrictions imposed on property in Marathon,
Florida, both parties appeal. The property owner, Marathon Sunsets, Inc.,
challenges the trial court’s injunction directing it to construct and maintain a traffic
control device on Kyle Way East. Greg and Michelle Coldiron ask this Court to
overturn the trial court’s decision that the Tiki Hut bar, added to the restaurant site,
does not violate the deed restriction authorizing use solely as a restaurant, defined
as “a food service establishment deriving no less than fifty percent of its revenue
from the sale of food and non-alcoholic beverages.” Because substantial,
competent evidence supports the trial court’s ruling as to the restaurant only
restriction, we affirm without further discussion. We reverse, however, the portion
of the final judgment ordering Marathon Sunsets to reconstruct the previously
dismantled gate on Kyle Way East.
Under the doctrine of impossibility of performance or frustration of purpose,
a party is discharged from performing a contractual obligation which is impossible
to perform and the party neither assumed the risk of impossibility nor could have
acted to prevent the event rendering the performance impossible. See, e.g., Shore
Inv. Co. v. Hotel Trinidad, Inc., 29 So. 2d 696 (Fla. 1947); Ferguson v. Ferguson,
54 So. 3d 553 (Fla. 3d DCA 2011); Leon Cnty. v. Gluesenkamp, 873 So. 2d 460(Fla. 1st DCA 2004); Am. Aviation, Inc. v. Aero-Flight Serv., Inc., 712 So. 2d 8092
(Fla. 4th DCA 1998). Evidence presented below clearly demonstrated Marathon
Sunsets sought permission to reconstruct the gate to Kyle Way East after it was
damaged and taken down as a result of certain sewer work in the area. A permit
for the gate was categorically denied by the governing authorities. Under these
circumstances, the doctrine of impossibility of performance applies, and the trial
court erred in ordering Marathon Sunsets to do that which it may not do without
the necessary permit.
Accordingly, we reverse the portion of the final judgment ordering
construction of the gate, and affirm in all other respects.
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