DAVID L. HARKLESS, Appellant,
DAVID A. LAUBHAN and SUSAN W. LAUBHAN, Appellees.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for DeSoto County; Kimberly C. Bonner,
N. Siegel of Glenn N. Siegel, P.A., Port Charlotte, for
B. Campbell and Hannah Dantzler-Fleming of Campbell, Trohn,
Tamayo & Aranda, P.A., Lakeland, for Appellees.
L. Harkless appeals from the final judgment entered in favor
of David A. Laubhan and Susan W. Laubhan on their
counterclaim for a declaratory judgment regarding the right
to receive rental income pursuant to a cell tower lease.
Because we have determined that the trial court erred in
concluding that the Laubhans were bona fide purchasers
without notice of Harkless's right to receive the rental
income at the time they purchased the subject property, we
majority of the underlying facts are set forth in this
court's opinion from a prior appeal. Harkless v.
Laubhan, 219 So.3d 900 (Fla. 2d DCA 2016). Thus, only a
brief recitation of undisputed facts is necessary here.
Harkless originally entered into a cell tower lease agreement
with Verizon which provided that Harkless would receive
rental income in return for allowing Verizon to build a cell
tower on his property. The lease itself was never recorded,
but a memorandum of the lease was recorded. However, the
memorandum did not mention the right to receive rental
income, and it is undisputed that no written document
explicitly referencing this right was ever recorded.
time the lease was drafted, Harkless and the Laubhans were
neighbors. Mrs. Laubhan was very vocal about her objections
to having the tower built and requested copies of various
government paperwork in relation to a special zoning variance
that was granted for the tower.
to the erection of the tower, the property was sold to third
parties (the Lollys) who then, in turn, sold it to the
Laubhans. While the Harkless/Lolly contract specified that
the buyers were aware of the lease agreement between Harkless
and Verizon, noted an easement related to the lease, and
provided that Harkless remained the owner of the easement and
the lease, the Lolly/Laubhan contract specified only that the
Laubhans were aware of the lease. The Lolly/Laubhan contract
did not mention the easement, and it failed to mention
anything regarding Harkless's retention of the ownership
of the easement or lease. Neither the Harkless/Lolly deed nor
the Lolly/Laubhan deed mentioned Harkless's continued
right to receive rental income from the lease, though both
deeds mentioned that they were free "of all
encumbrances, except . . . reservations, restrictions, and
easements of record, if any."
the Laubhans closed on their purchase of the property, the
cell tower was erected, apparently over their objections.
There is no dispute that the Laubhans have maintained the
property, have an insurance policy on the property, and have
performed all duties under the lease.
underlying suit arose after Harkless's attempt to sell
his rights under the cell tower lease to another party fell
through due to the Laubhans contesting Harkless's
continued right to receive rental income under the lease.
Harkless brought claims for a declaratory judgment and
reformation of the deeds, and the Laubhans asserted a
counterclaim for declaratory judgment. The Laubhans then
sought summary judgment which was granted. We reversed on
appeal, concluding that there were disputed issues of fact
remaining. Harkless, 219 So.3d at 908.
remand, the trial court conducted a hearing and ultimately
entered final judgment in favor of the Laubhans on their
counterclaim for declaratory judgment. The trial court
concluded that the Laubhans were bona fide purchasers without
notice of the lease and that, therefore, Harkless had no
rights under the lease, including the right to receive rental
income. In reaching that conclusion, the trial court
determined that the real estate agent who had negotiated both
the Harkless/Lolly and Lolly/Laubhan transactions was not a
reliable source of information and thus the fact that she
verbally informed the Laubhans about Harkless's retention
of the right to receive income under the lease did not impose
a duty on the ...