# Third District Court of Appeal

State of Florida

Opinion filed November 28, 2018.

Not final until disposition of timely filed motion for rehearing.

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No. 3D17-2271

Lower Tribunal No. 16-11934

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### Five Seas Investors, Inc.

, Appellant,

vs.



### Armando Guzman, et al.

,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Thomas J.

Rebull

, Judge.

Saul Ewing Arnstein & Lehr LLP, and Franklin L. Zemel, Alan R. Poppe,

and Ariel R. Deray (Fort Lauderdale)

, for appellant.

Ritter Chusid, LLP, and Shawn R. Horwick and Gary S. Rosner (Coral

Springs) ; Isriel Ponzoli, P.A., and Ronald J. Isriel; Shutts & Bowen LLP, and

Steven M. Ebner, Stephen T. Maher, and Jamie B. Wasserman, for appellees.

Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.

LOGUE, J.Five Seas Investors, Inc. (“the Hotel”), which owns the Newport Beachside

Hotel, appeals the trial court’s order dismissing with prejudice its counterclaim

against the La Perla Condominium Association, Inc. (the “Condominium”) and

third party complaint against various individual unit owners at the La Perla

Condominium. 1 We reverse.

Background

La Perla Condominium is a 326-unit residential condominium located in

Sunny Isles Beach, Florida. It is situated on land previously owned by the Hotel.

When the Hotel sold the portion of its land on which the Condominium was

developed, the Hotel granted the Condominium the right to balloon the sides of the

Condominium tower, apparently to allow the floors containing the parking garage

to project over the air space of the Hotel. In exchange, the Hotel was granted nonexclusive easements for using the Condominium’s driveway for commercial

deliveries, garbage removal, valet parking, and similar matters. This understanding

was reflected in an easement agreement. As constructed, the Condominium had

balconies.

In May 2016, approximately a decade after the construction of the

Condominium, the Condominium sued the Hotel for breach of the reciprocal

1 The individual unit owners are appellees, Armando and Miriam Guzman, Sophia

Barchenko as Trustee of the Sophia Barchenko Trust, Samer El Fashby and Nada

Nisevic, Justin Fuhrmann, and Gary Miselevich.

2easements and trespass. The complaint alleged the Hotel improperly exceeded the

scope of the easement agreement by, among other things, converting certain of the

Condominium’s common elements for the Hotel’s exclusive use and clandestinely

using the Condominium’s electrical supply. One year into the litigation, the Hotel

filed the counterclaim and the third party complaint against the individual unit

owners at issue in this appeal. The counterclaim and third party complaint alleged

that the Condominium’s balconies on floors 39 to 43 encroached upon the Hotel’s

air rights. Five Seas filed a lis pendens against the affected units.

The Condominium and the individual unit owners moved to dismiss the

counterclaim and the third party claims. They argued (1) the four-year statute of

limitations had run on the trespass claims because the balconies were constructed

in 2006 and the claims were not asserted until 2017; and (2) the easement

agreement between the parties permitted the extension of the balconies over the

Hotel’s property. On October 16, 2017, the trial court entered an order granting the

motions to dismiss with prejudice.

On May 7, 2018, the court entered a subsequent order denying the Hotel’s

motion for reconsideration and clarifying the prior dismissal order. The court

clarified that its dismissal was not based on the statute of limitations argument but

was based solely on its holding that the Hotel’s claims “are plainly negated by the

Easement Agreement.” This appeal followed.

3Analysis

Our review of the trial court’s interpretation of the easement agreement is de

novo. Tarafa v. Takach

, 934 So. 2d 524, 526 (Fla. 3d DCA 2005) (citing Langner

v. Binger

, 503 So. 2d 1362, 1363 (Fla. 3d DCA 1987)). It is well settled that

“[w]hen determining whether an easement conveys a particular right, the rules of

contract interpretation apply, giving effect to the plain meaning of the terms as

stated.” Buie v. Bluebird Landing Owner’s Ass’n, Inc.

, 172 So. 3d 519, 521 (Fla.

1st DCA 2015) (citing Sandlake Residences, LLC v. Ogilvie

, 951 So. 2d 117, 119

(Fla. 5th DCA 2007)).

The easement agreement provides in pertinent part:

(a) Five Seas’ Grant of Easements to the La Perla Property. Five Seas,

as the owner of the Five Seas Property, hereby subjects the Five

Seas Property to the following perpetual non-exclusive easements,

which are hereby granted for the use and benefit of the owners and

occupants from time to time of the La Perla Property, including

(without limitation) the Unit Owners and the Condominium

Association, and, their respective guests, tenants, contractor and

invitees:

(i) Non-exclusive easements, for subjacent and

overhead support, encroachments and air rights,

for any portions of the Condominium which may

extend over, under or upon the Five Seas Property

including, ( without limitation ), those portions of

the Condominium which may now or hereafter

overhang and extend above that portion of the

Newport Hotel described as “Easement A,” only to

the extent such portions of the Condominium are

located within the area shown in the sketch and

legal description attached hereto as Exhibit “4, ”

4which rights shall be exclusive to the La Perla

Property with respect to “Easement A,” and any

other encroachment which may hereafter occur as

a result of field conditions, settling or shifting of

the Condominium, or otherwise, whether in

connection with the initial construction thereof or

any alteration or repair thereof after damage by fire

or other casualty or any taking of all or any portion

of the Condominium by condemnation or eminent

domain proceedings.

(Emphasis added).

The trial court apparently accepted the argument of the Condominium and

the unit owners that this agreement granted them air rights to build over “any

portion” of the Hotel’s property “without limitation.” This far-reaching

interpretation would grant the Condominium the right to build over all of the

Hotel’s air space. We cannot read the agreement so expansively. In particular, this

broad interpretation fails to give adequate consideration to the explicit language

limiting the grant of rights “only to the extent such portions of the Condominium

are located within the area shown in the sketch and legal description attached

hereto as Exhibit ‘4.’”

The sketch and legal description contained in Exhibit 4 clearly delineate the

highest and lowest elevation of the air rights granted. It limits the air rights granted

to “[t]he

. . . described perimetrical boundaries lying within the elevation of +45.75

feet and +115.00 feet relative to the National Geodetic Vertical Dotum of 1929.

And containing 3.401 [sic] square feet, or 0.078 acres more or less.” Here, the

5balconies at issue are built from the 39 th to 43 rd floors of the tower

-- well above

the 115-foot maximum elevation of the easement granted in Exhibit 4.

Accordingly, we reverse the dismissal of the counterclaim and the third

party claims and remand for further proceedings. In so ruling, we do not reach the

statute of limitations defense because it was not considered by the trial court. Also

we are not foreclosing the possibility that a defense could be raised under the

language of the easement agreement which permits “any other encroachment

which may hereafter occur as result of field conditions, settling or shifting of the

Condominium, or otherwise, whether in connection with the initial construction [or

in certain other situations].” But such a factually based defense is not before us

when considering the grant of the subject motion to dismiss.

Reversed and remanded.

A N Y P O S T

- O P I N I O N M O T I O N M U S T B E F I L E D W I T H I N S E V E N

D A Y S

. A R E S P O N S E T O T H E P O S T

- O P I N I O N M O T I O N M A Y B E

F I L E D W I T H I N F I V E D A Y S T H E R E A F T E R

.

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