EVERGREEN COMMUNITIES, 

INC. and PALAFOX, LLC,

Appellants/Cross-Appellees,

v.

PALAFOX PRESERVE 

HOMEOWNERS' 

ASSOCIATION, INC., a Florida 

Corporation, ROBERT N. 

BRASWELL and WYNONA C. 

BRASWELL,

Appellees/Cross-Appellants.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D16-3367

_____________________________/

Opinion filed April 4, 2017.

An appeal from the Circuit Court for Leon County.

George S. Reynolds, Judge.

W. Douglas Hall and James Parker-Flynn of Carlton Fields, Tallahassee, for 

Appellants/Cross-Appellees.

Jefferson M. Braswell of Scruggs & Carmichael, P.A., Gainesville, for 

Appellees/Cross-Appellants.

PER CURIAM.

Appellants, Evergreen Communities Inc. and Palafox, LLC, challenge a final 

summary judgment in which the circuit court found that a declaration of covenants 
2

and restrictions limits the use of appellants’ land to commercial use. Appellees, 

who are the Palafox Preserve Homeowners’ Association and individual 

homeowners Robert and Wynona Braswell, filed a cross-appeal challenging other 

issues. We affirm the issues on cross-appeal without discussion. However, we 

reverse the final summary judgment because the record contains disputed issues of 

material fact that cannot be resolved on summary judgment. 

The standard of review of a final summary judgment is de novo. Bowman v. 

Barker, 172 So. 3d 1013, 1014 (Fla. 1st DCA 2015). “A summary judgment 

proceeding is not a trial by affidavit or deposition.” Id. at 1015. “The movant must 

demonstrate conclusively that no genuine issue exists as to any material fact, and 

the court must draw every possible inference in favor of the party opposing 

summary judgment.” Id. “‘A summary judgment should not be granted unless the 

facts are so crystallized that nothing remains but questions of law.’” Id. (quoting 

Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985)).

“[R]estraints [on the use of real property] ‘are not favored and are to be 

strictly construed in favor of the free and unrestricted use of real property.’” 

Leamer v. White, 156 So. 3d 567, 572 (Fla. 1st DCA 2015), reh’g denied (Feb. 20, 

2015) (quoting Wilson v. Rex Quality Corp., 839 So. 2d 928, 930 (Fla. 2d DCA 

2003)). “In construing restrictive covenants the question is primarily one of 

intention, and the fundamental rule is that the intention of the parties as shown by 
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the agreement governs, being determined by a fair interpretation of the entire text 

of the covenant.” Wilson, 839 So. 2d at 930 (quoting Thompson v. Squibb, 183 So.

2d 30, 32 (Fla. 2d DCA 1966)). If a restrictive covenant is ambiguous, parol 

evidence regarding the developer’s intent is material. Barnett v. Destiny Owners 

Ass’n, Inc., 856 So. 2d 1090, 1092 (Fla. 1st DCA 2003). A statement in a 

restrictive covenant explaining that certain restrictions are intended to “‘facilitate’ 

a particular development and use” is insufficient to restrict the future use of the

property to that particular development and use; instead, such a statement “does 

nothing more than explain why the enumerated restrictions were imposed.” 

Orlando Lake Forest Joint Venture v. Lake Forest Master Cmty., 105 So. 3d 646, 

648 (Fla. 5th DCA 2013). 

Here, we find language in the declaration of covenants and restrictions that 

expressed the developer’s personal intent to develop the property for commercial 

use is ambiguous as to whether the developer intended to create a restriction on the 

property such that it could only be used for commercial purposes. Appellants 

submitted an affidavit in which the developer stated that he did not intend to create 

a restriction on use. The trial court rejected this assertion as “disingenuous.” 

However, we find this affidavit was parol evidence that created a disputed issue of 

material fact as to the developer’s intent, which is paramount in interpreting a land 
4

use restriction. Because disputed issues of material fact remain, we reverse the 

final summary judgment and remand for further proceedings. 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

MAKAR, JAY, and M.K. THOMAS, JJ., CONCUR.