8425 BISCAYNE LLC v. PINNACLE TOWERS LLC

• Court: District Court of Appeal of Florida
• Decided: February 16, 2022
• Docket: 21-0486
• Status: Published

Opinion

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 ________________

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

2 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.”).

3 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.