GROVE HARBOUR MARINA AND CARIBBEAN MARKETPLACE, LLC, etc. v. GROVE BAY INVESTMENT GROUP, LLC, etc. ( 2023 )

Third District Court of Appeal
State of Florida
Opinion filed May 31, 2023.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-0806
Lower Tribunal No. 19-31658
________________
Grove Harbour Marina and Caribbean Marketplace, LLC, etc.,
Appellant,
vs.
Grove Bay Investment Group, LLC, etc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, William
Thomas, Judge.
The Ferraro Law Firm, P.A., and Leslie B. Rothenberg and Mathew D.
Gutierrez; Boies Schiller Flexner LLP, and Jesse Panuccio (Fort
Lauderdale), for appellant.
Shubin & Bass, P.A., and Jeffrey S. Bass, Deana D. Falce and Whitney
A. Kouvaris, for appellee.
Before FERNANDEZ, C.J., and MILLER and BOKOR, JJ.
BOKOR, J.
In this contract interpretation case involving a public-private
partnership, appellant Grove Harbour challenges a grant of summary
judgment finding that appellee Grove Bay was entitled, pursuant to various
land development contracts, to construct and maintain improvements to a
public roadway on Grove Harbour’s property. Grove Harbour contends that
genuine issues of material fact as to the terms and authorization of the
improvements precluded summary judgment, as well as that the trial court
improperly rejected several of its affirmative defenses alleging repudiation,
failure of consideration, and fraud in the inducement. For the reasons
explained below, we reverse and remand the entry of summary judgment
and the denial of Grove Harbour’s fraud defenses, but we affirm as to the
denial of the other affirmative defenses.
BACKGROUND
Grove Harbour and Grove Bay currently both maintain adjacent
properties abutting Biscayne Bay in the Coconut Grove neighborhood of the
City of Miami. Grove Harbour is the lessee of 2640 South Bayshore Drive,
from which it currently operates a marina and boat launch. Grove Bay is the
lessee of 3385 & 3349 Pan American Drive and 3351 & 3377 Charthouse
Drive. The properties are divided by Charthouse Drive, a public roadway of
the City of Miami.
2
In January 2013, the City began soliciting proposals for a public-private
partnership to redevelop the waterfront area and operate various attractions
including a marina and boat launch. Grove Bay, seeking to prepare a
development proposal, approached Grove Harbour to devise a partnership
whereby visitors to Grove Bay’s property would be allowed to transport and
launch boats stored on Grove Bay’s property through Grove Harbour’s
marina. In furtherance of this partnership, Grove Bay and Grove Harbour
executed several contracts providing for Grove Bay to undertake
improvements to Charthouse Drive and the Grove Harbour property to
improve traffic circulation and boat launch capacity in the event Grove Bay
was awarded development rights. The City ultimately accepted Grove Bay’s
development proposal and leased the property to Grove Bay.
The parties’ transactions encompass numerous agreements executed
over several years. The ones pertinent to this appeal are as follows:
a. The Access Agreement
The “Access Agreement,” executed May 9, 2013, was the first
agreement executed between Grove Bay and Grove Harbour prior to the
submission of Grove Bay’s development proposal. This agreement would
provide Grove Bay a right of access over portions of Grove Harbour’s
3
property in the event the City accepted Grove Bay’s development proposal
and executed a lease:
At the execution of the Grove Bay Lease by the City and Grove Bay,
Grove Harbour hereby grants to Grove Bay non-exclusive vehicular,
vessel and pedestrian access in, over, upon, across and through that
portion of the Grove Harbour property identified as the “Access Area”
on Exhibit A attached hereto and made a part hereof (the “Access
Area”) for vehicular, vessel and pedestrian ingress and egress to and
from the Grove Bay property solely for the hauling and dropping of
vessels.
As consideration for these access rights, Grove Bay was to pay Grove
Harbour an “Access Fee” of $200,000 annually, in monthly installments of
$16,666.66, commencing on the first day of the month following the earlier
of either “actual use of the Access Area by Grove Bay” or “receipt of the final
permit of certificate of use for the improvements to the Access Area.” The
“Access Area” exhibit attached to this agreement consisted solely of two
graphics depicting an aerial view of portions of the Grove Harbour property
and Charthouse Drive after the proposed improvements.
b. “The Harbour” Development Proposal
Grove Bay’s development proposal for the waterfront area, entitled
“The Harbour,” references the Access Agreement and Grove Bay’s
relationship with Grove Harbour as a means of regulating traffic and boat
launches by utilizing Grove Harbour’s property. The proposal included plans
for two additional boat launch and staging areas on Grove Harbour’s
4
property, as well as proposed traffic circulation improvements including the
realignment of Charthouse Drive and the addition of a roundabout on Grove
Harbour’s property. As with the Access Agreement, the precise Charthouse
Drive improvements were not described, but rather defined solely by
graphics depicting the same improvements as the Access Area. The
proposal also included a graphic depicting an alternative plan for “a
transition, if ever needed, to return of [sic] boat launching function on-site.”
c. Grove Bay Lease
Upon accepting Grove Bay’s development proposal, on October 24,
2013, Grove Bay and the City entered into a 50-year lease for the Grove Bay
properties. The lease incorporates the development proposal and requires
Grove Bay to operate the land “as contemplated in the Proposal,” including
construction of the improvements and additional boat launches on Grove
Harbour’s property. The lease also provides that “should the additional boat
launches located at Grove Harbour (as described in the Proposal) not be
available for use . . . Lessee shall construct the on-site boat launch as
depicted in the Proposal.”
d. Access Easement and Indemnification Agreement
In order to effectuate the lease, in 2016, Grove Bay, Grove Harbour,
and the City jointly executed an “Access Easement and Indemnification
5
Agreement” (hereinafter “AEIA”) concerning the Charthouse Drive
improvements. The AEIA begins with a statement of recitals acknowledging
the Access Agreement, development proposal and Grove Bay Lease and
providing that “[t]he above recitals are true and correct and are hereby
incorporated into this Agreement by reference.” The agreement then
provides that Grove Harbour approves of the “Charthouse Drive Plans” as
defined by an exhibit attached to the AEIA:
Grove Harbour has reviewed the plans and specifications for the
improvement and re-alignment of Charthouse Drive as proposed by
Grove Bay. A copy of the plans and specifications are attached hereto
as Exhibit B (the “Charthouse Drive Plans”). By its execution hereof,
Grove Harbour approves the Charthouse Drive Plans, as such may be
modified to comply with the requirements, permits and approvals of
appropriate governmental or quasi-governmental authorities including,
without limitation, the City.
The AEIA also gives Grove Bay the right to construct and maintain the
improvements depicted in the Charthouse Drive Plans, and grants Grove
Bay a non-exclusive easement over a specified “Easement Area” that
includes “such portions of Charthouse Drive as depicted on the Charthouse
Drive Plans . . . at such time as it is developed or redeveloped.” The
“Charthouse Drive Plans” attached to the AEIA also consist of a single image
6
depicting the proposed modifications including the roadway realignment with
the new roundabout. 1
e. AEIA “Side Agreement”
After execution of the AEIA, Grove Bay and Grove Harbour executed
an additional agreement (titled “Agreement,” but referred to as a “Side
Agreement” by the parties) to clarify their respective obligations under the
AEIA. This agreement expressly states that it is intended solely to clarify the
AEIA and “is not an alteration, variation, or modification” of the AEIA, such
that joinder of the City was not required. The agreement provides that Grove
Harbour approves the “Plans and Specifications” for the Charthouse Drive
improvements, as defined by reference to an exhibit depicting a more
detailed portrayal of the portions of the road to be realigned, including the
roundabout on Grove Harbour’s property. 2
1
Grove Harbour argues that because the AEIA also defines the term
“Charthouse Drive” by reference to a metes-and-bounds description of the
current layout of the road before any improvements, we should interpret the
AEIA and incorporated agreements to allow Grove Bay to only construct
improvements within Charthouse Drive itself, and not on Grove Harbour’s
leasehold. Because the AEIA plainly distinguishes between the extant
“Charthouse Drive” and the prospective “Charthouse Drive Plans” accepted
by Grove Harbour, and because the easement and access areas also
encompass Charthouse Drive after any redevelopment, we reject this
interpretation.
2
In addition to the foregoing, in 2015, Grove Bay also retained the
architectural firm Arquitectonica to prepare design plans for the
improvements required in the Harbour development. These plans included
7
f. Grove Bay Files Suit
Throughout 2017, the parties’ relationship began to deteriorate. Most
notably, Grove Harbour Marine Partner, LLC, a subsidiary company of Grove
Harbour that had been administering the properties under a separate
management agreement, ceased its operations in June 2017 after the
parties allowed the management agreement with Grove Bay to lapse,
allegedly unbeknownst to Grove Harbour. Grove Harbour accused Grove
Bay of breaching or repudiating the Access Agreement by allowing this
lapse, claiming that Grove Harbour had been assured that it or an affiliate
would continue to maintain the redeveloped marina throughout the duration
of the lease. In response, Grove Bay notified Grove Harbour that it would
modify its development plans to transition to on-site boat launches as
described in the Grove Bay Lease, but that it still intended to enforce the
Access Agreement and proceed with the Charthouse Drive realignment on
portions of the Grove Harbour property, with no need for joint operations and
management.
more detailed renditions of the Charthouse Drive improvements depicted in
the development proposal, including the new roundabout on the Grove
Harbour property. However, as these plans were not approved by Grove
Harbour or incorporated into any of the agreements between Grove Bay and
Grove Harbour, they are irrelevant to this appeal.
8
After Grove Harbour refused to allow Grove Bay to begin construction,
Grove Bay initiated the underlying suit, seeking declaratory and injunctive
relief and specific performance to enforce the AEIA and Access Agreement.
Grove Harbour counterclaimed, seeking to enjoin Grove Bay from
trespassing or proceeding with the Charthouse Drive modifications on the
basis that Grove Bay’s change to on-site boat launches negated the need
for the roadway modifications for the hauling and dropping of vessels and
thus repudiated the Access Agreement. Grove Harbour also asserted
affirmative defenses including repudiation and failure of consideration for the
Access Agreement, and fraud in the inducement for the AEIA. Upon cross-
motions for summary judgment, the trial court rejected Grove Harbour’s
affirmative defenses and granted summary judgment and an injunction in
favor of Grove Bay, finding that the parties’ agreements unambiguously
allowed Grove Bay to construct the Charthouse Drive improvements on
Grove Harbour’s property regardless of whether Grove Harbour allowed the
launching of boats from its property, and that Grove Bay had not breached
its obligations under the Access Agreement. This appeal followed.
STANDARD OF REVIEW
“The standard of review on orders granting final summary judgment is
de novo.” Orozco v. McCormick 105, LLC, 276 So. 3d 932, 935 (Fla. 3d
9
DCA 2019). On review of a motion for summary judgment, we take all facts
alleged in the complaint as true and construe them in the light most favorable
to the non-moving party. See, e.g., id.; Cascar, LLC v. City of Coral Gables,
274 So. 3d 1231, 1234 (Fla. 3d DCA 2019). To be entitled to summary
judgment, the movant must show that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fla.
R. Civ. P. 1.510(a). A dispute of fact is “genuine” when the evidence is such
that a reasonable jury could return a verdict in favor of the non-moving party,
and a factual dispute is “material” when it could have some impact on the
outcome of the case under the applicable substantive law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
As the judgment here was rendered before May 1, 2021, we apply the
previous summary judgment standard the supreme court receded from in In
re Amendments to Florida Rule of Civil Procedure 1.510, 309 So. 3d 192(Fla. 2020). Under this standard, “the burden of proving the absence of a
genuine issue of material fact is upon the moving party,” and summary
judgment should be granted “[o]nly after it has been conclusively shown that
the party moved against cannot offer proof to support his position on the
genuine and material issues in the cause.” Holl v. Talcott, 191 So. 2d 40,
43, 47 (Fla. 1966). “If the evidence raises any issue of material fact, if it is
10
conflicting, if it will permit different reasonable inferences, or if it tends to
prove the issues, it should be submitted to the jury as a question of fact to
be determined by it.” Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985).
ANALYSIS
I. Summary Judgment
The ambiguity in the only agreement between Grove Bay and Grove
Harbour authorizing improvements to Charthouse Drive should have
precluded summary judgment. The AEIA failed to provide the requisite
clarity as to the exact nature of the improvements to be made on Grove
Harbour’s property. Of course, where a contract’s terms are clear and
unambiguous, the court looks no further than the plain meaning of the
language used in the contract as the best expression of the parties’ intent.
See, e.g., Pearson v. Caterpillar Fin. Servs. Corp., 60 So. 3d 1168, 1171
(Fla. 4th DCA 2011). Under that circumstance, summary judgment is often
appropriate. However, “[w]hen a contract is ambiguous and the parties
suggest different interpretations, the issue of the proper interpretation is an
issue of fact requiring the submission of evidence extrinsic to the contract
bearing upon the intent of the parties.” Id. (quoting Bacardi v. Bacardi, 386
So. 2d 1201, 1203 (Fla. 3d DCA 1980)); see also Haggin v. Allstate Invs.,
Inc., 264 So. 3d 951, 954 (Fla. 4th DCA 2019) (“As a general rule, only if the
11
contract is ambiguous will the parties’ intent become a question of fact for
the fact-finder, precluding summary judgment. However, if the agreement is
unambiguous, then the plain language of the contract governs and there is
no need for parol evidence of the parties’ intent.” (quotations and citations
omitted)); Holmes v. Fla. A & M Univ., 260 So. 3d 400, 403–04 (Fla. 1st DCA
2018) (“[T]he existence of an ambiguity in a contract precludes the entry of
summary judgment.”).
“A contract is ambiguous when its language is reasonably susceptible
to more than one interpretation, or is subject to conflicting interests.” Real
Estate Value Co. v. Carnival Corp., 92 So. 3d 255, 260 (Fla. 3d DCA 2012)
(citation omitted); see also Com. Cap. Res., LLC v. Giovannetti, 955 So. 2d
1151, 1153 (Fla. 3d DCA 2007) (“Where a contract is susceptible to two
different interpretations, each one of which is reasonably inferred from the
terms of the contract, the agreement is ambiguous.”). Here, while the AEIA
(the only agreement between Grove Bay and Grove Harbour that confers
development rights) allows Grove Bay to construct improvements to
Charthouse Drive on Grove Harbour’s property in some capacity, this
agreement doesn’t provide the requisite clear and unambiguous expression
of the scope and location of those improvements. The “Charthouse Drive
Plans” incorporated into the AEIA depict only the original version of the
12
proposed roadway improvements with boats being launched from Grove
Harbour’s property, not the alternative plan Grove Bay submitted in the event
it was required to change to on-site boat launching, as it has now done.
While the Access Agreement does incorporate the alternative plans for the
Charthouse Drive realignment as depicted in the development proposal, the
Access Agreement itself does not confer construction rights, and its defined
Access Area is broader than the AEIA’s Charthouse Drive Plans. Further,
we are left with exhibits setting forth the alternative modifications that consist
solely of a single, grainy image, with no written description. While the City
has expressly approved the alternative development plans through the
Grove Bay Lease, Grove Harbour has only approved the original versions
defined in the AEIA and Side Agreement as the “Charthouse Drive Plans,”
and it is unclear whether the change to alternative plans would amount to
the sort of “modification” Grove Harbour has also approved under the AEIA.
Thus, extrinsic evidence is necessary to determine the extent to which the
alternative development plans were contemplated in the AEIA and Side
Agreement or whether Grove Harbour has approved of these alternative
plans as provided for in those agreements, as well as the precise terms of
the improvements themselves. Accordingly, with this lack of clarity on what
13
constitutes the improvements, we reverse and remand the summary
judgment to allow these issues to be further developed.
II. Affirmative Defenses
On remand, we also find that while the trial court correctly granted
summary judgment on Grove Harbour’s repudiation and failure of
consideration defenses, the trial court erred in granting summary judgment
on the affirmative defenses based on fraud in the inducement. The basis for
the former two defenses flows from Grove Bay’s purported failure to pay the
access fee for its use of Grove Harbour’s property as required under the
Access Agreement. However, as noted, the Access Area encompasses the
redeveloped Charthouse Drive, and the access fee becomes due only the
following month after either “actual use of the Access Area by Grove Bay” or
“receipt of the final permit of certificate of use for the improvements to the
Access Area,” so the Access Agreement has not been breached or
repudiated solely by Grove Bay’s switching to on-site boat launches. Thus,
as Grove Bay has not even begun construction of the improvements yet, nor
has Grove Bay expressed a clear and unequivocal intent to repudiate the
Access Agreement or refuse to pay the access fees once they become due,
14
Grove Harbour cannot claim repudiation or failure of consideration for these
reasons.3
However, as for Grove Harbour’s fraud in the inducement defenses,
genuine issues of material fact remain outstanding as to whether Grove Bay
made any false representations during formation of the AEIA and Side
Agreement that could support such defenses.
To state a claim for fraud in the inducement, a plaintiff must
allege (1) a misrepresentation of a material fact; (2) knowledge
by the person making the statement that the representation is
false; (3) intent by the person making the statement that the
representation would induce another to rely and act on it; and (4)
that the plaintiff suffered injury in justifiable reliance on the
representation.
Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 209 (Fla.
3d DCA 2003); see also Burton v. Linotype Co., 556 So. 2d 1126, 1128 (Fla.
3d DCA 1989) (“Fraud is ordinarily inappropriate for summary disposition;
only after a full explanation of the facts and circumstances can the
occurrence of fraud be determined.”).
3
See, e.g., Torbron v. Campen, 579 So. 2d 165, 168 (Fla. 5th DCA 1991)
(“Failure of consideration is an affirmative defense and is the neglect, refusal,
or failure of one of the parties to perform or furnish the consideration agreed
upon.”); Mori v. Matsushita Elec. Corp. of Am., 380 So. 2d 461, 463 (Fla. 3d
DCA 1980) (“A prospective breach of the contract occurs when there is
absolute repudiation by one of the parties prior to the time when his
performance is due under the terms of the contract. Such a repudiation may
be evidenced by words or voluntary acts but the refusal must be distinct,
unequivocal, and absolute.”).
15
Grove Harbour claims that Grove Bay made various false
representations to induce Grove Harbour to sign the AEIA, including
assuring Grove Harbour that the Access Agreement would remain in effect
and that Grove Harbour or an affiliate company would be able to continue
managing the joint marina despite Grove Bay’s intention to repudiate the
Access Agreement by allowing the management agreement with Grove
Harbour Marine Partner to lapse and switching to on-site boat launching.
Conversely, Grove Bay claims that Grove Harbour was aware of the lapse
of the management agreement prior to signing the AEIA and that Grove
Harbour itself threatened to revoke its access to the property without
additional safeguards, which was what led to the Side Agreement. As these
differing accounts cannot be reconciled from the face of the record,
unresolved issues of fact remain as to when Grove Harbour became aware
of the lapse of the management agreement and the extent to which Grove
Bay made representations about its intent for joint marina operation that may
have been relied upon by Grove Harbour during formation of the AEIA, as
well as any duty Grove Bay may have had with respect to disclosures.
Because these issues of fact are genuine and material to Grove Harbour’s
putative fraud defenses, summary judgment should not have been granted
as to the affirmative defenses predicated on this theory.
16
Affirmed in part, reversed in part, and remanded.
17