Third District Court of Appeal

State of Florida 

Opinion filed February 22, 2023.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-2117

Lower Tribunal No. 20-8291

________________

AFP 103 Corp.,

Appellant,

vs.

Common Wealth Trust Services, LLC,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Valerie R. 

Manno Schurr, Judge.

Carlton Fields, P.A., Christopher W. Smart (Tampa), Dean A. Morande 

(West Palm Beach), Jose A. Loredo, Rachel A. Oostendorp and Michael G. 

Zilber, for appellant.

Silver Law, P.A., and Scott A. Silver; Russo Appellate Firm, P.A., and 

Paulo R. Lima, for appellee.

Mrachek Fitzgerald Rose Konopka Thomas & Weiss, P.A., and Manuel 

Farach (West Palm Beach), for Florida Land Title Association, Inc., as 

amicus curiae.

Ausley McMullen, and Benjamin B. Bush (Tallahassee), for Florida 

Home Builders Association, as amicus curiae.
2

Before FERNANDEZ, C.J., and MILLER, and BOKOR, JJ. 

FERNANDEZ, C.J.

Defendant AFP 103 Corporation (“AFP”) appeals the trial court’s 

“Order Granting Third-Party Plaintiff Common Wealth Trust’s Motion for Final 

Summary Judgment,” as well as the trial court’s Order denying AFP’s Motion 

for Rehearing or Reconsideration. For the following reasons, we affirm the 

order granting Common Wealth Trust’s motion for final summary judgment. 

as well as the trial court’s order denying AFP’s motion for 

rehearing/reconsideration.

1

FACTS AND PROCEDURAL HISTORY

In 1981, Miami-Dade County approved the site plan for the property in 

the underlying case. In 2004, South Florida Hotel, Inc., (“South Florida 

Hotel”) a Florida corporation, was the fee simple title owner to all the land in 

question in the underlying action. On March 29, 2004, South Florida Hotel 

executed and recorded a “Declaration of Restrictive Covenants in Lieu of 

Unity of Title.” The Declaration stated that the parcels would be subdivided 

1 AFP made no arguments in its Initial Brief or Reply Brief concerning the 

trial court’s order denying AFP’s motion for rehearing or reconsideration with

regard to MIMM. Thus, we do not address it.
3

into two separate lots: the “Non-Condominium Lot” and the “Mart 

Condominium Lot.” It further stated that South Florida Hotel intended to 

develop the Mart Condominium Lot “as a condominium and sell individuals 

units therein.” The Declaration indicated that title to the Non-Condominium 

Lot and the Mart Condominium Lot “will not remain in single ownership and 

[South Florida Hotel] is therefore executing this instrument in order to assure 

the County that the development of the Property with future multiple 

ownership will not violate the Zoning Code of Miami-Dade County.” This 

Declaration of Restrictive Covenants in Lieu of Unity of Title further stated, 

in part:

In the event of multiple ownership subsequent to site plan or 

amended site plan approval, each of the subsequent owners ... 

shall be bound by the terms, provisions, and conditions of this 

instrument. Owner further agrees that it will not convey portions 

of the Property to such other parties unless said portions of the 

Property are bound by, and subject to, the Master Covenants, 

which for purposes hereof Article Four of the Master Covenants 

shall be deemed to be the “Easement and Operating Agreement” 

required by Section 33-257 of the Code of Miami-Dade County. 

. .

Thereafter, on April 30, 2004, South Florida Hotel recorded the 

“Declaration of Covenants, Conditions, Restrictions, Easements and 

Operating Agreement for Miami International Merchandise Mart, Hotel,

Plaza and Convention Center” (“Declaration of Covenants”). In that 

document, South Florida Hotel stated: 
4

South Florida Hotel intends on selling individual Condominium 

Units . . . located within the Mart Condominium Lot to multiple 

purchasers. Further, [South Florida Hotel] may decide to further 

subdivide the Non-Condominium Lot in the future. Consequently,

the Non-Condominium Lot and the Mart Condominium Lot will be 

under separate ownership. Accordingly, [South Florida Hotel] 

desires to grant and crate, on the terms and conditions 

hereinafter set forth, the cross easements and covenants 

hereinafter set forth in favor of and appurtenant to the Mart 

Condominium Lot and the Non-Condominium Lot, all as more 

particularly provided for herein.

Paragraph F of the Declaration of Covenants also referred to Miami-Dade 

County Ordinance section 33-257, where it stated:

[South Florida Hotel] entered into that certain Declaration of 

Restrictive Covenants in Lieu of Unity of Title recorded March 29, 

2004... Paragraph 3 of such Covenant in Lieu and Miami-Dade 

County Code Section 33-257 requires [South Florida Hotel] to 

create an “Easement and Operating Agreement” as a condition 

to multiple ownership of The Properties . . . Article Four hereof 

shall serve as the required “Easement and Operating 

Agreement.”

In addition, Article 4.2 of the Declaration of Covenants provided:

4.2 Parking within the Shared Essential Components. All of 

the parking areas that are intended to be used by Condominium 

Unit Owners and their guests, tenants, employees, licensees and 

invitees, are located within the Shared Essential Components 

which are part of the Non-Condominium Lot. Declarant, as the 

initial NCL Owner [Non-Condominium Lot Owner], shall have, 

and hereby reserves unto the NCL Owner, the exclusive right at 

any time, to grant to specific Condominium Unit Owners or other 

Owners or occupants of The Properties or to the Master 

Association or to any Condominium Association the exclusive 

right to use one or more of such parking spaces....NCL Owner 

shall accommodate, within the Shared Essential Components, 

the reasonable parking needs of the Mart Condominium Lot 
5

which may be met by designation, assignment, valet parking or 

otherwise. . .

Furthermore, Article 4.3 stated, in part:

4.3 Easements for Vehicular and Pedestrian Ingress/Egress 

over portions of the Shared Essential Components and Shared 

Facilities. ...Declarant for itself and as the initial NCL Owner, 

hereby reserves and covenants for itself and for all future Owners 

of Lots within The Properties...and for all Condominium Unit 

Owners..., that the Declarant, all Owners and all Condominium 

Unit Owners..., shall have (a) a non-exclusive easement for 

vehicular ingress and egress over all private streets and 

roadways located from time to time within the Shared Essential 

Components..., and (b) a non-exclusive easement for pedestrian 

access over all lobbies, paths, walkways and stairwells located 

from time to time within the Shared Essential Components or the 

Shared Facilities which serve or are intended for the use of the 

Mart Condominium Lot, the Condominium Unit Owners or the 

general public....

Also, Article 4 provided that according to Miami-Dade County Code of 

Ordinance section 33-257, South Florida Hotel “shall obtain the written 

approval of the Office of the County Attorney prior to recording any 

Supplemental Declaration in the Public Records of the County which amends 

or modifies the provisions of this Article 4.” South Florida Hotel is the only 

entity that signed the Declaration of Covenants. 

On October 3, 2005, South Florida Hotel executed a Warranty Deed

and recorded it on October 12, 2005. With this Warranty Deed, South Florida 

Hotel conveyed all of the Mart Condominium and a portion of the NonCondominium Lot. The Non-Condominium Lot was divided into the 
6

Undeveloped Lot and the Convention Lot. The buyer/grantee of the 

Condominium Lot and the Convention Lot was a corporation known as SF 

Hotels, Inc. Along with the land, the Warranty Deed alleged to convey South 

Florida Hotel’s “rights pursuant to that Declaration of Covenants, Conditions, 

Restrictions, Easements and Operating Agreement for Miami International 

Merchandise Mart, Hotel, Plaza and Convention Center, dated April 29, 2004

... as modified by the Supplemental Declaration of Covenants and 

Conditions, dated September 30, 2005, to be recorded in the Public Records 

of Miami-Dade County, Florida prior to or concurrently with this deed.” 

On November 1, 2005, South Florida Hotel recorded a Supplemental 

Declaration to the Declaration of Covenants, Conditions, Restrictions, 

Easements and Operating Agreement for Miami International Merchandise 

Mart, Hotel, Plaza and Convention Center.” The first paragraph of the 

Supplemental Declaration states that it “is made as of the ___ day of 

September, 2005, by SOUTH FLORIDA HOTEL INC., a Florida 

corporation....” All three signature pages state, “The foregoing instrument 

was acknowledged before me this ___ day of September, 2005, ....” It was

signed only by South Florida Hotel. It was also signed, on pages labeled 

“Consents,” by two entities associated with the Condominium Lot: “MIMM 

Master Association, Inc.” and “MIMM Condominium Association, Inc.” The 
7

Supplemental Declaration was not signed by SF Hotels, Inc., who was the 

grantee of the Condominium Lot and the Convention Lot. Furthermore, no 

subsequent property owner signed the Supplemental Declaration.

The Supplemental Declaration further stated: “Declarant desires to 

supplement, modify and amend the Declaration...(b) to allocate certain 

rights and obligations between the owners of [the Convention and 

Undeveloped] Lots, (c) to provide for all of the rights of the Declarant and the 

NCL owner to remain with the Owner of the [Convention] Lot, and (d) as 

otherwise set forth herein.” The Supplemental Declaration alleged to modify 

portions of Article 4 of the Declaration of Covenants, which is the “Easement 

and Operating Agreement” (amending Articles 4.1(a) and 4.2). In addition, 

with respect to parking, the Supplemental Declaration tried to amend the 

Declaration of Covenants. The Supplemental Declaration required the 

Undeveloped Lot owner to maintain a minimum number of parking spaces 

for the other parcels to use. This condition was not present in the original 

April 30, 2004 Declaration of Covenants. The undated Supplemental 

Declaration was recorded on November 1, 2005. 

On August 11, 2009, AFP acquired the Convention Lot from SF Hotels, 

Inc. Almost ten years later, on June 27, 2019, Common Wealth acquired the 

Undeveloped Lot from South Florida Hotel after foreclosure. Thus, when the 
8

proceedings below began, Common Wealth owned the Undeveloped Lot, 

and AFP owned the Convention Lot. The Condominium Lot was owned by 

multiple individual condominium unit owners, who are represented by the 

MIMM Condominium Association (“MIMM”).

In February 2020, Common Wealth put a fence around the 

Undeveloped Lot. MIMM’s counsel mailed a letter to Common Wealth’s 

counsel alleging that condominium owners were allowed to park on the 

Undeveloped Lot and demanded that they be granted access. Common 

Wealth’s counsel responded in March 2020 that the easement claimed by 

MIMM was invalid. 

Thereafter, in a related proceeding between MIMM and Common 

Wealth, MIMM sued Common Wealth in April 2020 for damages, declaratory 

and equitable relief. MIMM sued, in part, for a declaratory judgment that 

Common Wealth had a duty “to maintain the Undeveloped Lot for [MIMM’s] 

use as a parking lot of no less than 583 spaces” and requested that Common 

Wealth be required to remove all barriers surrounding the lot. Common 

Wealth moved to dismiss the complaint for failure to state a claim, which the 

trial court granted without prejudice for MIMM to file an amended complaint. 

MIMM filed an amended complaint in October 2020. On December 22, 2020, 

MIMM’s counsel moved to withdraw as counsel due to irreconcilable 
9

differences. While the motion to withdraw was pending, Common Wealth 

filed a Counterclaim on December 29, 2020. The Counterclaim alleged one 

claim to quiet title and sought as relief, in part, to “quiet and remove any and 

all clouds on title with respect to MIMM’s purported easement rights in the 

Undeveloped Lot.” Common Wealth also moved for a summary judgment on 

January 7, 2021. 

On January 29, 2021, while MIMM’s counsel’s motion to withdraw was 

still pending, MIMM filed its Answer and Affirmative Defenses to Common 

Wealth’s counterclaim. In February 2020, the trial court granted the motion 

to withdraw and gave MIMM twenty days to hire new counsel. The record on 

appeal does not show whether MIMM hired new counsel or not. On March 

23, 2021, after the deadline for MIMM to secure new counsel passed, the 

trial court held a hearing on Common Wealth’s motion for summary 

judgment. The trial court entered final summary judgment for Common 

Wealth on MIMM’s direct claim against Common Wealth, as well as on 

Common Wealth’s counterclaim against MIMM. MIMM did not appeal this

judgment. 

Thereafter, on April 21, 2021, Common Wealth filed a Third-Party 

Complaint against AFP to clear up any alleged easement rights that AFP 

might claim in Common Wealth’s Undeveloped Lot. The Third-Party 
10

Complaint requested that the court enter judgment against AFP to remove 

any clouds on title regarding AFP’s purported easement rights in the 

Undeveloped Lot. Common Wealth also filed a motion for summary 

judgment against AFP contending it was entitled to judgment because there 

were no genuine issues of material fact regarding 1) the invalid easement 

documents that AFP might rely upon in support of its claim; and 2) South 

Florida Hotel’s failure to comply with the necessary conditions precedent that 

were required by the easement documents to convey easement rights. 

Next, AFP filed its Answer, Affirmative Defenses, and Counterclaim on 

June 21, 2021. In its counterclaim, AFP sought a declaration that AFP had 

the right of access to the Undeveloped Lot for ingress and egress, as well as 

for parking. It further sought a declaration that Common Wealth was required 

to maintain the Undeveloped Lot for AFP to use as a parking lot of at least 

583 spaces.

On August 5, 2021, AFP filed its opposition to Common Wealth’s 

motion for summary judgment. Also on August 5, 2022, AFP filed a Motion 

for Rehearing and Reconsideration requesting that the trial court reconsider 

its April 7, 2021 order entering final summary judgment against MIMM, which 

MIMM never appealed. After holding a hearing in August 2021, the trial court 

denied AFP’s rehearing motion due to procedural issues with timing and 
11

AFP’s standing to file such a motion. The trial court entered its written order 

on August 25, 2021.

2

On August 25, 2021, the trial court held a hearing on Common 

Wealth’s motion for summary judgment. After hearing counsels’ arguments,

the trial court granted Common Wealth’s motion. The court entered its written 

order on September 30, 2021, granting final summary judgment to Common 

Wealth on its complaint against AFP, as well as on AFP’s counterclaim 

against Common Wealth. The trial court stated:

[T]here are no disputed issues of material fact on Common 

Wealth Trust’s Third-Party Complaint or on AFP’s Counterclaim 

because: (1) AFP did not establish or ever prove that it had 

easement rights due to the invalidity of the Easement 

Documents; and (2) the original grantor’s failure to comply with 

necessary conditions precedent required by the Easement 

Documents to properly create or convey easement rights.

AFP did not move for rehearing, but then filed this appeal. AFP also appeals 

the trial court’s October 6, 2021, order denying AFP’s motion for 

reconsideration and rehearing, which dealt with the summary judgment the 

trial court entered against MIMM. 

ANALYSIS

2 AFP sought reconsideration of this order, which the trial court denied on 

October 6, 2021.
12

Because this is an appeal from a final judgment based on an order 

granting summary judgment, this Court applies a de novo standard of review. 

Volusia Cty., v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 

2000).

AFP first argues that the trial court erred in granting summary judgment 

to Common Wealth because the easement documents and deeds are valid 

and enforceable. However, the rule in Florida is that one cannot, while being 

owner of both a dominant and servient estate, grant an easement to oneself 

in one’s own property. One Harbor Fin. Ltd. Co. v. Hynes Properties, LLC, 

884 So. 2d 1039 (5th DCA 2004); Hensel v. Aurilio, 417 So. 2d 1035, 1038 

(Fla. 4th DCA 1982); Morris v. Garcia, 224 So. 2d 268 n. 1 (Fla. 3d DCA 

2017).

In One Harbor, Hoffenberg, a property owner, built a 75,000 squarefoot building on one of two adjacent parcels of land that he owned. The parcel 

of land with the building was now owned by One Harbor Financial Limited 

Company (“One Harbor”), the defendant. One Harbor, 884 So. 2d at 1041. 

Hoffenberg needed to comply with zoning regulations that required thirteen 

additional parking spots for his new building, so he executed an “easement 

agreement” that alleged to create a parking easement on the adjacent parcel 

of land that he owned. Id. Hoffenberg is the only party that signed the 
13

“easement agreement.” Id. He then sold the parcel with the alleged parking 

easement (the servient parcel) without referencing the easement and 

recorded the “easement agreement” eight days after he sold the parcel. Id.

The trial court found that at the time the agreement was recorded, 

Hoffenberg owned both parcels of land, thus Hoffenberg’s attempt to create 

an easement over his own property was void ab initio. Id. at 1042-43. One 

Harbor appealed, and the Fifth District Court of Appeal affirmed. The 

appellate court held, “Hoffenberg, as fee simple owner of both parcels, did 

not possess the legal right to grant an easement over his own property.” Id.

at 1044. Similarly, here, because South Florida Hotel was the fee simple 

owner of all the parcels, it did not possess the legal right to grant an 

easement over its own property to itself.

In addition, Miami-Dade County Code of Ordinance section 33-257 

provides the specific procedures that landowners or developers must follow 

to describe future easements over their land in multi-parcel developments, 

“where multiple buildings are proposed for a single site.” Section 33-257, 

titled “Unity of title; covenant in lieu thereof” provides that a developer or 

landowner shall provide a “declaration of restrictive covenants” and the 

declaration “shall contain the following necessary elements ....” § 33.257(2). 

One of the necessary elements is contained in subsection (c) which states:
14

(c) That in the event of multiple ownerships subsequent to site 

plan approval, that each of the subsequent owners shall be 

bound by the terms, provisions and conditions of the declaration 

of restrictive covenants. The owner shall further agree that he or 

she will not convey portions of the subject property to such other 

parties unless and until the owner and such other party (parties) 

shall have executed and mutually delivered, in recordable form, 

an instrument to be known as an “easement and operating

agreement” . . .

§ 22-257(2)(c), Miami Dade County, Fla., Code of Ordinances. That section 

further provides, “These provisions of the easement and operating 

agreement shall not be amended without prior written approval of the Office 

of the County Attorney.” § 33-257(2)(c). In addition, in Persaud Properties 

FL Investments, LLC v. Town of Fort Myers Beach, 310 So. 3d 493, 496 (Fla. 

2d DCA 2020), the Second District Court of Appeal stated:

Moreover, zoning ordinances, like statutes that are in derogation 

of the common law, “will not be interpreted to displace the 

common law further than is clearly necessary. Rather, the courts 

will infer that such a statute [or ordinance] was not intended to 

make any alteration other than was specified and plainly 

pronounced.”...“[T]he presumption is that no change in the 

common law is intended unless the statute is explicit in this 

regard.”

Id. (internal citations omitted). We agree with Common Wealth’s contention 

that section 33-257 clarifies the common law rule set out in One Harbor; thus,

it must be narrowly construed. Accordingly, the rule in Florida that a property 

owner cannot create an easement over his own property is not superseded 

by section 33-257.
15

Importantly, here, the evidence does not support that the requirements 

of section 33-257 were followed; thus, the alleged easement was void ab 

initio. South Florida Hotel, the property owner that executed the declarations, 

did not include the language from section 33.257(2)(c) that South Florida 

Hotel “will not convey portions of the subject property to such other parties 

unless and until the owner and such other party (parties) shall have executed 

and mutually delivered, in recordable form, an instrument to be known as the 

‘easement and operating agreement’ . . . .” Also, there is no evidence in the 

record that the subsequent owners of the subject parcels executed and 

delivered the Easement and Operating Agreement. To meet the 

requirements of section 33-257, SF Hotels had to execute and record the 

“Easement and Operating Agreement” when South Florida Hotel, the original 

owner and developer, conveyed the Condominium Lot and Convention Lot 

in October 2005 through the Warranty Deed. It did not. In fact, SF Hotels did 

not execute any of the documents that AFP now claims created an easement 

in its favor. As previously noted, the Declaration of Covenants contains the 

signatures of MIMM Master Association, Inc. and MIMM Condominium 

Association, Inc. Those were the two corporations related to the 

Condominium Lot. In addition, the copy of the October 2005 Warranty Deed, 

is signed only by South Florida Hotel, the original grantor. It is not signed by 
16

SF Hotels, which is the corporation to which South Florida Hotel conveyed 

the Convention Lot.

Furthermore, there is no evidence in the record that AFP executed an 

“Easement and Operating Agreement” when it acquired the Convention Lot 

in August 2009. Nor is there evidence in the record that Common Wealth 

executed an “Easement and Operating Agreement” when it acquired the 

Undeveloped Lot in June 2019. As previously stated, the only party that 

executed the “Easement and Operating Agreement” is the original grantor, 

South Florida Hotel. In the Declaration of Covenants, which South Florida 

Hotel executed on April 29, 2004, Paragraph F of this document stated that 

Article 4 of this Declaration “shall serve as the required ‘Easement and 

Operating Agreement’”, as required by section 33-257 of the Miami-Dade 

County Code. Accordingly, it is clear from the record that neither AFP nor 

Common Wealth executed the “Easement and Operating Agreement.”

AFP contends that the Supplemental Declaration supports its position 

that an easement was created. It alleges that the Warranty Deed conveyed 

the Convention Lot from South Florida Hotel to SF Hotels. The Warranty 

Deed states that the conveyance is made “pursuant to [the Declaration of 

Covenants]...as modified by the Supplemental Declaration.” AFP contends 

that the Supplemental Declaration “confers a parking easement requiring the 
17

Undeveloped Lot Owner to maintain 583 parking spaces for use by the 

owners of the Convention Lot and Condominium Lot.” 

However, Common Wealth is correct that the Supplemental 

Declaration was null and void. Consequently, AFP cannot use the 

Supplemental Declaration to support an easement. First, if South Florida 

wanted to create an easement with the Supplemental Declaration, it failed 

because the Supplemental Declaration was not signed by SF Hotel when it 

acquired the Convention Lot and the Condominium Lot in 2005. Section 33-

257 of the Miami-Dade County Code required SF Hotels to sign the 

Supplemental Declaration. 

Second, section 33-257 states the that the provisions of the easement 

and operating agreement “shall not be amended without prior written 

approval of the Office of the County Attorney.” § 33-257(2)(c). Accordingly, 

to modify or create another easement, SF Hotel needed the written approval 

from the County Attorney’s Office to amend the original “Easement and 

Operating Agreement,” something SF Hotel did not do. AFP argues that prior 

written approval from the Office of the County Attorney was not required 

because the Supplemental Declaration did not modify or amend the 

easements. However, in the third “WHEREAS” paragraph on the first page 

of the Supplemental Declaration, it states: “Declarant desires to supplement, 
18

modify and amend the Declaration.” Further, in the first paragraph on the 

second page of the Supplemental Declaration, it states: “NOW 

THEREFORE, ... Declarant hereby supplements, modifies and amends the 

Declaration as follows: . . . .” Accordingly, AFP’s argument on this point is 

not supported by the record.

Moreover, the October 5, 2005 Warranty Deed did not convey any 

easement in the Undeveloped Lot because at the time the Warranty Deed 

was executed, the Supplemental Declaration was not in effect. The Warranty 

Deed states that the Convention and Condominium Lot parcels were being 

conveyed “pursuant to that certain Declaration of Covenants, Conditions, 

Restrictions, Easements and Operating Agreement . . . as modified by the 

Supplemental Declaration of Covenants and Conditions dated September 

30, 2005, to be recorded in the Public Records of Miami-Dade County, 

Florida, prior to or concurrently with this deed.” However, as Common 

Wealth correctly contends, there is no document in the record on appeal with 

that date of September 30, 2005. The Supplemental Declaration in the 

record on appeal does not have a date on it in the first paragraph on the first 

page of the document. The date is left blank. The day is also left blank on 

the signature pages. 
19

The Supplemental Declaration was recorded on November 1, 2005, 

while the Warranty Deed was signed on October 3, 2005 and then recorded 

on October 12, 2005. Accordingly, we agree with Common Wealth that the 

Warranty Deed did not incorporate any easement from the Supplemental 

Declaration because, as Common Wealth contends, a document cannot 

incorporate by reference the terms of another document that has not yet 

come into existence. 2000 Presidential Way, LLC v. Bank of N.Y. Mellon, 

326 So. 3d 64, 70 (Fla. 4th DCA 2021) (“[T]he doctrine of incorporation by 

reference is generally limited to documents that actually exist at the time of 

the incorporation. . . . ‘Incorporation by reference pulls existing material into 

the new, incorporation contract; it does not push material terms into 

nonexistent, as-yet-unassented-to future contracts.’”).Thus, the 

Supplemental Declaration was not effective prior to its recordation.

With respect to AFP’s argument that the trial court erred in granting 

summary judgment in Common Wealth’s favor despite AFP’s affirmative 

defenses of estoppel, laches and waivers, and unclean hands, the trial court 

properly entered summary judgment on these affirmative defenses. All three 

equitable defenses fail under the Fifth District Court of Appeal’s opinion in 

One Harbor. One Harbor was the defendant trying to enforce the alleged 

easement. It raised various affirmative defenses, including equitable 
20

estoppel. Id. at 1042. The Fifth District Court of Appeal found that the alleged 

easement was void ab initio. The One Harbor Court stated:

One Harbor urges this court to employ its equitable powers to 

give effect to the intent of the parties in view of fifteen years of 

uncontested use of the property, and to declare the easement 

valid, but such remedy is beyond this court’s power. Courts of 

equity simply have no power to issue rulings which they consider 

to be in the best interest of justice without regard to established 

law.

Id. at 1045. Similarly, here, the trial court found that the alleged parking 

easement was void ab initio, and thus, correctly ruled that summary 

judgment was proper on AFP’s affirmative defenses which were equitable in 

nature.

Finally, turning to AFP’s contention that the trial court erred in granting 

summary judgment in Common Wealth’s favor on AFP’s implied easement 

counterclaim, AFP is not entitled to an implied easement as a matter of law. 

First, AFP argues that the trial court granted the summary judgment on 

AFP’s counterclaim without notice. At the end of the summary judgment 

hearing on August 25, 2021, the trial court stated it was granting summary 

judgment in Common Wealth’s favor. AFP’s counsel did not argue to the trial 

court that the summary judgment should not be limited to Common Wealth’s 

direct claim. Thus, the trial court’s “Order Granting Third-Party Plaintiff 

Common Wealth Trust’s Motion for Final Summary Judgment” stated that 
21

summary judgment was entered in favor of Common Wealth and against 

AFP on Common Wealth’s Third-Party Complaint, “and on AFP’s 

Counterclaim.” AFP did not move for rehearing to allow the trial court to 

correct any error AFP was contending the trial court made, which AFP was 

required to do. “If the error is one that first appears in the final order, the 

aggrieved party must bring it to the judge’s attention by filing a motion for 

rehearing.” Hamilton v. R.L. Best Intl., 996 So. 2d 233, 234 (Fla. 1st DCA 

2008). Thus, because the issue was not raised below, AFP cannot raise the 

issue now for the first time on appeal. Dade Cty. Sch. Bd. V. Radio Station 

WQBA, 731 So. 2d 638 (Fla. 1999); see also Clear Channel Commc’ns, Inc. 

v. City of N. Bay Village, 911 So. 2d 188, 190 (Fla. 3d DCA 2005) (“The 

purpose for requiring a contemporaneous objection is to put the trial judge 

on notice of a possible error, to afford an opportunity to correct the error early 

in the proceedings, and to prevent a litigant from not challenging an error so 

that he or she may later use it for tactical advantage.”).

Second, AFP cites to Faussner v. Wever, 432 So. 2d 100 (Fla. 2d DCA 

1983), in support of its contention that the trial court did not give AFP notice 

that it was going to address AFP’s counterclaim. However, Faussner is 

distinguishable. In Faussner, the plaintiff was a buyer in a real estate contract 

who sued the seller for specific performance. Id. at 101. The seller 
22

counterclaimed for liquidated damages. Id. The seller moved for summary 

judgment on the plaintiff’s specific performance claim but not on the seller’s 

counterclaim for liquidated damages. The trial court granted summary 

judgment in the defendant seller’s favor on the plaintiff’s specific 

performance claim, as well as on the defendant’s counterclaim for liquidated 

damages. The plaintiff appealed. Id.

The Second District Court of Appeal reversed the summary judgment 

on the counterclaim based on lack of notice, concluding that the plaintiff had 

no indication the liquidated damages counterclaim would be addressed at 

the hearing. The appellate court noted that “the counterclaim was not 

addressed by any motion . . . .” Id. at 102. Here, AFP was asserting the 

counterclaim, and AFP made the trial court aware of AFP’s counterclaim 

before the trial court held the hearing on Common Wealth’s motion for 

summary judgment. AFP argued in its response to Common Wealth’s motion 

for summary judgment that summary judgment should not be entered in 

Common Wealth’s favor because AFP had asserted counterclaims for 

prescriptive easement and implied easement. Accordingly, unlike the plaintiff 

in Faussner, AFP cannot claim to not have notice when Common Wealth 

raised the issue at the summary judgment hearing. Thus, the trial court did 

not err in granting summary judgment on AFP’s counterclaim.
23

For these foregoing reasons, we affirm the trial court’s “Order Granting 

Third-Party Plaintiff Common Wealth Trust’s Motion for Final Summary 

Judgment.” AFP is not entitled to an easement by virtue of the Declaration 

of Covenants because that document is invalid as a matter of law. In 

addition, the Supplemental Declaration also fails for the reasons previously 

discussed. We also affirm the trial court’s order denying AFP’s motion for 

rehearing or reconsideration. 

Affirmed.