DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SERITAGE SRC FINANCE, LLC,

Appellant,

v.

THE TOWN CENTER AT BOCA RATON TRUST,

Appellee.

No. 4D2023-0982

[September 18, 2024]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No. 

502019CA014037XXXX.

Glenn E. Goldstein, Avi Benayoun, and Brigid Cech Samole of 

Greenberg Traurig, P.A., Fort Lauderdale, and Hala Sandridge of 

Buchanan Ingersoll & Rooney PC, Tampa, for appellant.

Mitchell W. Berger, Nicole Levy Kushner, and Brittany N. Husk of 

Berger Singerman LLP, Fort Lauderdale, for appellee.

GROSS, J.

This is an appeal of a final judgment of specific performance arising out 

of a provision in an extensive easement agreement between sophisticated 

business entities. We affirm the final judgment.

Running hundreds of pages with attachments, the agreement arose out 

of the expansion of a regional shopping mall in Boca Raton. The 

agreement’s salient provision provides that if certain property attached to 

the mall “is to be used for non-retail purposes,” the developer (i.e., 

appellee1) shall have the option to trigger a buyout process by requesting 

an appraisal of the property’s fair market value.

On cross-motions for summary judgment, the circuit court interpreted 

the meaning of “retail” and “to be used.” The court interpreted “retail” 

consistent with its plain meaning and concluded that, as used in the 

1 Appellee is the successor in interest to the developer.
2

agreement, the term did “not include the proposed restaurants, 

entertainment services, and/or fitness clubs” that appellant proposed to 

develop. The court interpreted “to be used” as “refer[ing] to anticipatory 

use, rather than a prior or active use.” The court concluded that such 

anticipatory use was “satisfied by [appellant’s] repeated, clear, and 

progressive steps taken to redevelop the Sears Site.” The court granted 

appellee’s motion for summary judgment and entered the final judgment 

on appeal.

Our review of an order granting summary judgment is de novo. City of 

Delray Beach v. DeLeonibus, 379 So. 3d 1177, 1180 (Fla. 4th DCA 2024). 

Likewise, we review a trial court’s interpretation of a contract de novo, so 

long as “the language is clear and unambiguous and free of conflicting 

inferences.” N. Star Beauty Salon, Inc. v. Artzt, 821 So. 2d 356, 358 (Fla. 

4th DCA 2002). “Whether an ambiguity exists in a contract is a question 

of law subject to a de novo standard of review.” Torwest, Inc. v. Killilea, 

942 So. 2d 1019, 1020 (Fla. 4th DCA 2006).

“When the language of a contract is clear and unambiguous, courts 

must give effect to the contract as written and cannot engage in 

interpretation or construction as the plain language is the best evidence 

of the parties’ intent.” Talbott v. First Bank Fla., FSB, 59 So. 3d 243, 245 

(Fla. 4th DCA 2011). “All contracts must be given a reasonable 

interpretation according to the intention of the parties at the time of 

executing them[.]” Holmes v. Kilgore, 103 So. 825, 827 (Fla. 1925) 

(emphasis added). A court must interpret a contract “in a manner that 

accords with reason and probability,” endeavoring to “avoid an absurd 

construction.” Katz v. Katz, 666 So. 2d 1025, 1028 (Fla. 4th DCA 1996). 

We have explained that “contractual language is ambiguous only if it is 

susceptible to more than one reasonable interpretation.” BKD Twenty-One 

Mgmt. Co. v. Delsordo, 127 So. 3d 527, 530 (Fla. 4th DCA 2012). “A true 

ambiguity does not exist merely because a contract can possibly be 

interpreted in more than one manner. Indeed, fanciful, inconsistent, and 

absurd interpretations of plain language are always possible.” Am. Med. 

Int’l Inc. v. Scheller, 462 So. 2d 1, 7 (Fla. 4th DCA 1984). In short, “where 

one interpretation of a contract would be absurd and another would be 

consistent with reason and probability, the contract should be interpreted 

in the rational manner.” Delsordo, 127 So. 3d at 530.

We affirm the trial court’s final judgment and interpretation of the 

agreement’s terms. The trial court interpreted the agreement in the

rational manner and properly rejected the appellant’s strained 

interpretation. The agreement is not ambiguous. Executed in 1985, the 
3

agreement was between the mall developer and some of the dominant 

retailers of the day, such as Federated Department Stores,2 Sears, 

Roebuck & Co.,3 Saks & Company, and Associated Dry Goods 

Corporation.4 As used throughout the agreement, the term “retail” 

describes the business in which these “retailers” were involved. For 

example, one purpose of the agreement was to allow the mall to operate as 

a regional shopping center and expansion “as an integrated group of retail 

stores”; the agreement required the developer with governmental permits 

and approvals to permit the expansion “for the sale, of goods, wares and 

merchandise at retail.”

We agree with the trial court that “to be used” contemplates 

anticipatory use. As appellee argues, the interpretation of “to be used” 

proposed by appellant would lead to an absurd result—the buyout process 

would not be triggered until after the Sears site “was demolished, 

redeveloped, and used for non-retail purposes.” As appellee points out, 

such a view would destroy the “integrated harmonious use of the Sears” 

site contemplated by the agreement and would result in waste. 

For these reasons, we affirm the final summary judgment.

Affirmed.

KLINGENSMITH, C.J., concurs.

FORST, J., dissents with opinion.

FORST, J., dissenting.

The majority opinion determines that the agreement at issue in this 

case “is not ambiguous” and that “the interpretation of ‘to be used’ 

proposed by [A]ppellant would lead to an absurd result—the buyout 

process would not be triggered until after the Sears site ‘was demolished, 

redeveloped, and used for non-retail purposes.’” As discussed herein, I 

disagree on both points. Accordingly, I respectfully dissent. 

Background

2 Federated was the owner of parcels designated for Burdines and Bloomingdales.

3 Appellant is the successor in interest to Sears, having acquired its interest in 

the property from the bankruptcy proceeding.

4 Associated owned Lord & Taylor.
4

In 1985, Sears, as predecessor in interest to Appellant Seritage, and 

Town Center Investment Associates, as predecessor in interest to Appellee 

Town Center, along with other parties, executed an agreement—“Town 

Center at Boca Raton First Amended and Restated Reciprocal Easement 

Agreement” (“REA”)—which governs the rights and obligations of the 

owners of these parcels. In 2015, Appellant acquired Sears store locations 

across the United States. Appellee is a trust and wholly owned subsidiary 

of Simon Property Group and owns the Town Center Mall in the City of 

Boca Raton. Appellant owns the former Sears store parcel, adjacent to the 

mall.

The REA’s section 11.3 is the focus of the dispute before us. That 

provision states, in pertinent part:

[I]n the event that any of the Sears Site . . . is to be used for 

non-retail purposes during the Term of this Agreement, Sears 

. . . shall so notify Developer and Developer shall have the 

option at any time within thirty (30) days after the expiration 

of six (6) months from the date of notice of such cessation to 

request an appraisal of the fair market value of such Site . . . 

. Upon receipt of such notice of election, Developer shall 

promptly designate a qualified appraiser . . . . Developer shall 

have the right, to be exercised at any time within sixty (60) 

days following receipt of written notice from the board of 

appraisers of any appraisal made in accordance with this 

Section 11.3, to elect to purchase such Site . . . .

(Emphasis added). 

The REA’s notice obligations are set forth in section 11.11:

Any notice, request, demand, approval or consent given or 

required to be given under this Agreement shall, except as 

otherwise expressly provided herein, be in writing, shall be 

delivered by registered or certified mail, postage prepaid, by 

courier, by messenger or by personal delivery, and shall be 

deemed to have been given when received by the other parties 

at the addresses stated below or at the last changed address 

given by the party to be notified as hereinafter specified[.] 

In 2016–18, Appellant and Appellee engaged in discussions regarding 

Appellant’s Boca Raton Sears site. These discussions included developing 

the site as a joint venture for a mixture of retail, residential, restaurant, 

and entertainment uses. Appellee never indicated that the exchange of 
5

plans as to how to develop the Sears site as a joint venture constituted 

section 11.3 notification. After Appellee rejected a proposal to develop the 

Sears site as a joint venture, Appellant moved ahead in exploring 

development on its own, while keeping Appellee informed of potential 

plans.

To that end, in November 2018, an Appellant representative sent a 

short email to an Appellee representative attaching a “conceptual plan for 

our call [later that day].” An Appellee executive later characterized the call 

as “purely informational.” Further meetings between the parties followed 

with respect to redevelopment plans concerning Appellant-owned 

properties adjacent to Appellee-owned properties, including the site at 

issue here. Nonetheless, Appellee informed Appellant that the November 

2018 email constituted section 11.3 formal “notice,” triggering Appellee’s 

contractual right “to request an appraisal of the fair market value of such 

[s]ite” with the option to purchase at that price. When Appellant objected, 

Appellee sued seeking specific performance. 

Below, Appellee contended Appellant had placed Appellee on notice of 

Appellant’s determination that the property “is to be used” for non-retail 

development. Appellant disputed this characterization, noting any 

development required local governmental approval and that the Boca 

Raton planning and zoning board had rejected Appellant’s proposal for 

mixed-use development of the Sears site.5

Both parties sought summary judgment. Appellee argued: (1) Appellant 

had given Appellee actual notice of its intent for the site to be used for nonretail purposes; (2) Appellant had breached its obligation by failing to 

notify Appellee of its plans to redevelop the site for non-retail purposes; 

and (3) Appellee had properly and timely exercised its right to an appraisal. 

By claiming Appellant gave it notice that the Sears site “is to be used for 

non-retail purposes,” Appellee sought to have the site appraised and then 

ultimately purchase the site for the appraisal value. 

Appellant’s cross-motion for summary judgment maintained the phrase 

“is to be used” refers to an absolute and unequivocal outcome, and 

because Appellant had not received any necessary government approvals 

for redevelopment, nor had Appellant committed to using the property for 

non-retail purposes, it is impossible to know what the site’s ultimate use 

would have been. 

5 Appellant did not appeal this decision to the City Council. 
6

After a hearing on the motions, the trial court granted Appellee’s motion 

for final summary judgment and denied Appellant’s motion. The court 

held in pertinent part:

• The court must determine (i) what constitutes “non-retail 

purposes,” (ii) the meaning of “is to be used,” and (iii) the form of 

notice required to trigger Appellee’s purchase option rights; 

• After examining caselaw providing “limited instruction regarding 

this disputed contractual language,” the court concluded that the 

phrase is to be used “refers to anticipatory use, rather than a 

prior or active use”;

• Appellant “began to solidify an intent to redevelop the Sears [s]ite” 

based on “ever-increasing discussions and application 

submissions” and the language “is to be used” was satisfied by 

Appellant’s “repeated, clear, and progressive steps taken to 

redevelop the Sears site”; and

• Appellant gave Appellee notice when Appellant hand-delivered 

redevelopment plans to Appellee and submitted redevelopment 

plans to the City, thus serving Appellee with direct knowledge of 

Appellant’s intention to redevelop the site for a non-retail 

purpose. 

This appeal follows. 

Analysis

As noted in the majority opinion, we review orders granting summary 

judgment de novo. Serrano v. Dickinson, 363 So. 3d 162, 165 (Fla. 4th 

DCA 2023). The new summary judgment rule prohibits summary 

judgment if “the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” In re Amends. to Fla. R. Civ. P. 1.510, 

317 So. 3d 72, 75 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986)). Nonetheless, “the general rule remains intact: 

credibility determinations and weighing the evidence ‘are jury functions, 

not those of a judge,’ when ruling on a motion for summary judgment.” 

Daniel’s Tree Serv., Inc. v. Nat’l Core Servs. Corp., 379 So. 3d 524, 530–31 

(Fla. 4th DCA 2023) (quoting Gracia v. Sec. First Ins. Co., 347 So. 3d 479, 

482 (Fla. 5th DCA 2022)). 

Appellant’s Interpretation of “is to be used” was No Less 

Reasonable than Appellee’s Interpretation (a Reasonable Jury 

Could Return a Verdict for Appellant)
7

We have previously acknowledged “the paradox of each side claiming 

that the contract is clear and unambiguous, but each side ascribes a 

different meaning to the ‘unambiguous’ language of the contract . . . .” 

Miller v. Kase, 789 So. 2d 1095, 1098 (Fla. 4th DCA 2001). This is the 

situation here. Arguably, the REA is susceptible to more than one 

reasonable interpretation, in which case it would be ambiguous. See BKD 

Twenty-One Mgmt. Co. v. Delsordo, 127 So. 3d 527, 530 (Fla. 4th DCA 

2012). “In cases where a contract is ambiguous, summary judgment is 

usually improper.” Nationstar Mortg. Co. v. Levine, 216 So. 3d 711, 714 

(Fla. 4th DCA 2017). Here, at a minimum, the provision at issue is 

ambiguous. “The very fact that both parties interpreted the [provision] to 

mean radically different things is an indication that this matter was not 

appropriate for summary judgment.” Soncoast Cmty. Church of Boca 

Raton, Inc. v. Travis Boating Ctr. of Fla., Inc., 981 So. 2d 654, 656 (Fla. 4th 

DCA 2008).

Context matters. See Antonin Scalia & Bryan A. Garner, Reading Law: 

The Interpretation of Legal Texts 56 (2012) (“Of course, words are given 

meaning by their context . . . .”). The Sears store was an anchor of the 

Town Center Mall when the REA was entered. Appellee’s predecessor in 

interest wanted to ensure that if Sears or its successor chose a non-retail 

property use, Town Center and its successors would have the first option 

to purchase the site for fair market value.

Per sections 11.3 and 11.11, Appellee’s management need not fear 

waking up one morning to unexpectedly see the Sears site occupied by a 

warehouse. Section 11.11 provides specific requirements by which 

Appellant is to notify Appellee that the site “is to be used” for non-retail 

purposes. Appellant has consistently argued it never provided such 

notice, because doing so would have been premature, and disputes the 

trial court’s finding that Appellant gave Appellee section 11.11 notice when 

Appellant “hand-delivered” redevelopment plans to Appellee and 

submitted redevelopment plans to the City. It would be difficult for 

Appellant to argue that Appellee failed to timely exercise its section 11.3 

rights if Appellant has maintained that the notification to trigger section 

11.3 was never provided.

Both parties agree that the phrase “is to be used” means an anticipatory 

future use. However, the parties disagree as to when that use occurs. 

Appellant has not argued the Sears site “is to be used” only once 

“demolished, redeveloped, and used for non-retail purposes,” as the 

majority contends. This was Appellee’s own characterization of Appellant’s 

interpretation of “is to be used.” Instead, Appellant has consistently 

maintained that, per the REA’s section 11.3, the site “is to be used” for 
8

non-retail purposes only after gaining zoning approval from the City of 

Boca Raton. On the other hand, Appellee argues the “is to be used” trigger 

was pulled once Appellant discussed/shared non-retail plans with 

Appellee and sought zoning approval for using the site for non-retail 

purposes. 

The trial court summarized, “an exhaustive review of Florida 

jurisprudence provides limited instruction regarding this disputed 

contractual language.” Thus, the trial court attempted to provide its own 

reasonable construction to the disputed phrase, in line with Appellee’s 

construction, and summarily concluded: “As a matter of commonsense . . 

. ‘is to be used’—refers to anticipatory use, rather than a prior or active 

use.”

The trial court’s minimal definition is correct, to the extent that the 

phrase refers to prospective use; however, it does not go far enough to 

answer the question at hand. If it is determined that the site “is to be used 

for non-retail purposes during the Term of the [REA],” that indicates a 

decision has been made that the site will be so used, barring unforeseen 

obstacles. The fact that preliminary steps have been taken does not lead 

to the same conclusion. Here, Appellant’s “plans” were exploratory and 

perhaps aspirational—it was too early in the process to deem them 

anticipatory.

The fact that a university offers a scholarship to a high school athlete 

does not lead to the conclusion the athlete “is to be” playing for that 

university. The player must accept the offer and enroll at the school, be 

healthy enough to play, and then “earn” playing time. The NCAA and the 

university must find that the athlete is eligible to attend the university and 

also meets NCAA eligibility standards. 

In the instant case, Appellant arguably wasn’t even at the scholarship 

offer stage. Appellant was first working with Appellee to determine either 

a retail or non-retail use of the site and then going through the Boca Raton 

zoning process. As the city has rejected Appellant’s proposal that included 

allegedly non-retail usage at the site, it would not be absurd to argue that 

the site is not to be used for non-retail purposes.

In reaching its summary judgment determination, the trial court 

determined that Appellant “began to solidify an intent to redevelop the 

Sears [s]ite” in its pre-application submission to the City of Boca Raton 

and the November 2018 email. The trial court observed that conduct 

which evolves from “conceptual discussion to telephone calls and emails 

to numerous applications and costly submissions, eventually connotes a 
9

firmer commitment to pursue a redevelopment plan.” The trial court held 

that Appellant’s actions served Appellee “with direct knowledge of 

[Appellant’s] intention to redevelop the Sears [s]ite for a non-retail 

purpose.” In reaching this holding, the trial court weighed conflicting 

testimony and disregarded some of Appellant’s testimony and evidence 

regarding its intent. However, “intent is a question of fact that should not 

be decided on a summary judgment.” Olsen v. First Team Ford, Ltd., 359 

So. 3d 873, 878 (Fla. 5th DCA 2023) (quoting Hodge v. Cichon, 78 So. 3d 

719, 723 (Fla. 5th DCA 2012)); see also Webb v. Blancett, 473 So. 2d 1376, 

1378 (Fla. 5th DCA 1985) (“[I]t is up to the trier of fact to determine 

whether the words or conduct of a party demonstrates the requisite 

intent.”). 

Conclusion

Based on the foregoing, I respectfully dissent. Pursuant to a 

“commonsense” interpretation of “is to be used,” Appellee and the trial 

court erred in concluding that Appellant’s sharing its plans and seeking 

zoning approval was notice of what it might do with the property, not notice 

of how the site “is to be used.” At a minimum, disputed issues of fact and 

interpretation remain for a trier-of-fact to hear and resolve. Reversal or 

remand are more appropriate decisions than affirmance in this case.

* * *

Not final until disposition of timely filed motion for rehearing.