final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 15-3240, Jerald Bagley, Judge.
Waldman Barnett, Glen H. Waldman, Eleanor T. Barnett and
Michael A. Azre, for appellants.
Kubicki Draper, Caryn L. Bellus and Barbara E. Fox; Conroy
Simberg Gannon Krevans Abel Lurvey Morrow & Kraft, Hinda
Klein, and Dale Friedman; Wicker Smith O'Hara McCoy &
Ford, Alyssa M. Reiter and Lindsey A. Hicks; Coffey
Burlington and Susan E. Raffanello; Boyd Richards Parker
& Colonnelli, James K. Parker and Craig J. Shankman; Cole
Scott & Kissane, Scott A. Cole and Lissette Gonzalez;
Egozi & Bennett, Bernard L. Egozi and Isaac S. Lew; The
Arthur Firm and Arthur J. Jones, for appellees.
SUAREZ, EMAS and LOGUE, JJ.
the plaintiffs below, appeal the trial court's final
order dismissing, with prejudice, all counts against all
reasons that follow, we reverse the trial court's order
dismissing with prejudice all counts against the Williams
Island Defendants, as plaintiffs had already voluntarily
dismissed those defendants prior to the trial court's
entry of a written order of dismissal. We also reverse the
trial court's order dismissing with prejudice Count IV
against individual South Island defendants Feder, Sawicki,
Kleiman and Coba.
we affirm the trial court's order dismissing with
prejudice counts I, II and III against the South Island
Defendants, and dismissing with prejudice Count V against
South Island defendant Feder.
FACTS AND PROCEDURAL BACKGROUND
appeal concerns three islands located in Aventura,
Florida-Williams Island, the North Island, and the South
Island, and associated groups of appellees, who are the
Island is the westernmost island with a singular road
and bridge connecting it to the South Island. That same road
connects the South Island by bridge to the North Island.
Williams Island consists of residential homes and the owners
of these residential homes are referred to in the instant
case as the "Williams Island Defendants." By virtue
of their ownership of homes on Williams Island, they are
members of the Williams Island Property Owners'
Association (the "WIPOA").
South Island consists of single family residential
homes known as "Island Estates." The owners of
these residential homes are referred to as the "South
Island Defendants." By virtue of their ownership of
homes on the South Island, they are members of the Island
Estates Homeowners' Association (the "IEHOA").
dispute giving rise to this appeal, however, surrounds the
development, construction, marketing and sale of a
sixteen-story, two-tower building of condominiums on the
North Island known as Príve at Island
Estates. The South Island and the North Island will be
referred to collectively as "the Two Islands."
appellants/plaintiffs below consist of the following:
- Gary Cohen, in his individual capacity, owns a home on the
South Island. Cohen is also successor Trustee of Trust No.
75-LT-21 (the "Trust") which is the owner of the
North Island. Cohen controls Two Islands Development, NI
Holdings and Last Lot.
- Two Islands Development Corp. is the developer of the South
- NI Holdings, LLC owns submerged land adjacent to the
- Last Lot Corp. owns the sole remaining undeveloped lot on
the South Island.
- Príve Developers, LLC ("Príve
Developers"), is the developer currently developing
Príve at Island Estates on the North Island.
- BH3 Realty, LLC is in charge of the marketing and selling
of the condominiums currently under development.
Amended Complaint includes the following allegations: In
1976, the Cohen family secured a final judgment in Miami-Dade
County Circuit Court, which granted the Cohen family certain
rights related to the development of the Two Islands and
compelled Miami-Dade County to rezone them according to
certain stated limitations in the judgment. In 2006, the City
of Aventura executed and recorded a "Vested Rights
Determination Agreement" that reaffirmed the extent of
the vested rights for the Two Islands.
has served as president of the IEHOA since its inception. In
2011, residents of the South Island expressed an interest in
having access to the anticipated amenities that would be
included in the development on the North Island. In January
2013, after consulting with counsel, Cohen prepared and
presented a plan to the other homeowners of the South Island
for their consideration of a Shared Maintenance Association.
The plan was emailed to the homeowners with a notice of an
upcoming meeting where the plan would be subject to a vote.
Also included in the email were details of the planned
development on the North Island and a draft of the Easement,
Operating and Development Agreement (the "EODA"),
which agreement was necessary for creating the Shared
meeting for the vote on the Shared Maintenance Association
was initially scheduled for February 21, 2013, but some
homeowners expressed that they needed more time to consider
the plan and materials submitted. At their request, Cohen
continued the meeting and the vote to February 28, 2013. At
the February 28 meeting, the Shared Maintenance Association
and plans contained therein were approved by a vote of 11-0,
with the balance of the eligible homeowners electing to
exercise their right not to vote. Pursuant to the vote, on
March 7, 2013, Cohen-in his capacity as president of the
IEHOA, the trustee of the Trust, and president of Two Islands
Development-executed the EODA. Relevant to this appeal, the
EODA (attached as an exhibit to the complaint) provides:
D. Two Islands, Association and Trust, and their respective
successors (each a "Party" and
collectively, the "Parties") desire to
grant, re-grant or re-affirm, as applicable, easements (each
an "Easement Area" and collectively the
"Easement Areas") over certain portions of
the North Island and the South Island, for the mutual benefit
of the Parties, as well as for the benefit of the owners
(each a "Parcel Owner" and collectively,
the "Parcel Owners") of the individual
single-family homes ("Dwellings") and/or
condominium units ("Units") now or
hereafter located within the South Island or the North Island
(collectively, the "Properties"),
including (without limitation), easements from Two Islands
and the [IEHOA] which are being granted pursuant to Section
1(d) of Article IV of the Island Estates Declaration.
EODA contains the following covenants at issue:
13. Covenants of Further Assurances. From time to
time, at the request of any of the Parties or Associations,
the other Parties or Associations shall, without further
consideration, promptly agree to execute and deliver any and
all other instruments which may be reasonably arising
hereunder, including but not limited to any additional
easements and other instruments required for the location,
installation, construction, maintenance, repair and/or
replacement of any and all facilities for water, sewer,
electric, other public utilities and surface water management
relating to all or any portion of the Properties, and any and
all governmental applications, permits, approvals and
covenants required in connection with the development,
maintenance and operation of any portion of the Properties.
15. Reservation of Development and Other Rights;
Ratification of Easements. . . . The Associations each
agree, on their own behalf and on behalf of their respective
members, to execute any joinders, consents, applications,
permits, easements, unity of title, declaration or covenant
running with the land in lieu of unity of title, or other
documents which may be necessary or desirable to obtain or
transfer any governmental approvals in connection therewith,
and to otherwise fully utilize, enjoy or transfer the
Development Rights. . . . The Parties hereto ratify and
reaffirm the easements set forth in the Island Estates
Declaration and all easements or rights of record affecting
the South Island as of the date of this Agreement, as
recorded in the Public Records of Miami-Dade County.
17. Covenants Running with the Land. The easements
hereby granted, the restrictions hereby imposed, and the
agreements herein contained shall be easements, restrictions
and covenants running with the land and shall inure to the
benefit of and be binding upon the Associations, the Marina
Slip Holders and the Parties hereto, and their respective
heirs, successors and assigns, including, but without
limitation, all subsequent owners of portions of the
Properties and all persons claiming under them.
alleged that, in reliance in part on the EODA, Príve
Developers proceeded with the development of the Príve
at Island Estates on the North Island. Also in reliance in
part on the EODA, Príve Developers took steps toward
preselling condominium units. As of the filing of the Amended
Complaint, 79 of the 160 units had been sold with
approximately $222 million in sales under contract with a
total amount of approximately $63 million being held in
escrow for the purchasers who were originally told to expect
delivery of their units by the first quarter of 2016, but now
will not take possession until the second quarter of 2017.
also alleged that the Williams Island Defendants purchased
their properties subject to the vested rights to build
high-rise condominium buildings on the North Island and
subject to express contracts recorded in the public records
and included in their title policies, including one titled
"Agreement Not to Object, " which prohibits the
Williams Island Defendants from objecting to development on
the North Island, and requires their cooperation if needed.
alleged that, despite having agreed to the EODA and the
Agreement Not to Object, the South Island Defendants and the
Williams Island Defendants breached their obligations and
have taken steps to protest or otherwise interfere with the
development of the North Island. Specifically, this lawsuit
is the fifth in a ...