Third District Court of Appeal State of Florida
Opinion filed May 15, 2024. Not final until disposition of timely filed motion for rehearing.
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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, MILLER and BOKOR, JJ.
BOKOR, J. ON MOTION FOR REHEARING
We deny both parties’ respective motions for rehearing or clarification
but withdraw our previous opinion and substitute the following opinion in its
stead.
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,
2 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.
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
3 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
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
4 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
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
5 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
Agreement” (hereinafter “AEIA”) concerning the Charthouse Drive
improvements. This agreement 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
other agreements 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 agreement authorizing construction of improvements, 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. 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 AEIA, which is the only agreement between Grove
Bay, Grove Harbour, and the City that actually authorizes 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.” 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
11 rule, only if the 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
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 proposed roadway improvements
with boats being launched from Grove Harbour’s property, not the alternative
12 plan Grove Bay submitted in the event it was required to change to on-site
boat launching, as it has now done. The Side Agreement offers no
clarification on this point, nor could it be construed to authorize any
construction beyond the scope of the AEIA, particularly without the City being
a party to that agreement. Moreover, 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, it is not expressly incorporated into the AEIA or
required by the Lease, and its defined Access Area is broader than the
AEIA’s Charthouse Drive Plans. 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 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
13 terms of the improvements themselves.3 Accordingly, with this lack of clarity
on what 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,
3 To this court’s knowledge, no document incorporated into the AEIA contains a precise, written description of the precise square footage of the improvements themselves, including the number of docks to be built at the marina. We cannot conclude that the agreements here, which effectively authorize both construction and easements solely by reference to images, are sufficiently clear and unambiguous for summary judgment to be appropriate.
14 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,
Grove Harbour cannot claim repudiation or failure of consideration for these
reasons.4
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.
4 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 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.”).
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 the extent to which Grove Bay may have had any duty with respect
16 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.
Affirmed in part, reversed in part, and remanded.