IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CRP II – MIRAMAR, LLC, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-2504
THE FRENCH QUARTERS
CONDOMINIUM OWNER’S
ASSOCIATION, INC., a not-for-
profit corporation,
Appellee.
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Opinion filed November 2, 2016.
An appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.
Samuel B. Taylor of Samuel B. Taylor, P.A., Destin, for Appellant.
D. Michael Chesser and Tara A. Hagan of Chesser & Barr, P.A., Shalimar, for
Appellee.
WINSOR, J.
This appeal involves two coastal condominium projects and an agreement
between their owners. Miramar Enterprises of FWB, Inc. (Miramar), was
developing a new phase of its mixed-use development. French Development, Inc.
(French), owned an adjacent property. The two entities entered into an “Easement
and Maintenance Agreement,” in which Miramar agreed to construct on its
property a swimming pool and other improvements that both properties’ residents
could use. In return, French agreed to share maintenance costs of those
improvements. The agreement explicitly stated that “[t]he Easements, duties and
obligations herein granted and assigned, shall be deemed to be covenants
appurtenant to and to run with the ownership of the [properties] and their
respective heirs, successors and assigns.” The parties also agreed to assign their
rights and obligations under the agreement to their respective homeowners’
associations.
The pool and related improvements never came to be. Miramar notified
French that it could not construct them because of “[m]arket conditions, financing
conditions, and contractor issues.” French’s successor in interest, the appellee
homeowner association, sued Miramar. While that litigation was pending, Miramar
gave up the property through a deed in lieu of foreclosure, and the new owner—
CRP II–Miramar LLC (CRP II), the appellant here—was joined as a defendant.
The operative complaint presented two counts. The first sought a declaration
that the agreement constituted a covenant running with the land, meaning it bound
CRP II as the new owner. The second count alleged that CRP II and Miramar
breached the agreement by failing to build the pool and other amenities. CRP II
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asserted several defenses, including that the agreement was not a covenant running
with the land, meaning that as the new owner it had no obligation to perform.
The trial court granted partial summary judgment as to the first count,
concluding that the agreement was a covenant running with the land and bound
CRP II. The court never reached the breach of agreement count, which the plaintiff
voluntarily dismissed. Therefore, the only matter before this court is the trial
court’s declaration that the agreement ran with the land. Nonetheless, CRP II fills
much of its briefs with arguments about whether the doctrines of frustration of
purpose or impracticability apply and whether the agreement “should be voided
because of materially changed circumstances.” It also faults the trial court for
“fail[ing] to recognize that it is the unforgiving marketplace that rules real estate
development.” Perhaps those issues relate to a breach of contract claim—an issue
we do not address here—but they do not factor into whether the trial court was
wrong in declaring that the covenant ran with the land. As to the issue before us,
we find no error.
AFFIRMED.
WOLF and WINOKUR, JJ., CONCUR.
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