SMITH APRIL 28 1999 APRIL 28 1999 v. BABCOCK (2023)

Steven T. Smith, as Trustee of the Steven T. Smith Revocable Trust Agreement, and Rita A. Smith, as trustee for the Rita A. Smith Revocable Trust Agreement, (collectively, the “Smiths”), seek review of an order granting their neighbors, Charles Babcock and Nancy Hamilton (collectively, the “Babcocks”), the right to immediately remove a shared dock.¹ Finding jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii), we reverse and remand for further proceedings.

The Babcocks and Smiths are neighbors who own adjoining waterfront property. For almost a decade, the two families shared a dock built on an easement benefiting both properties. In 2020, the neighbors hired a marine contractor, Greg Orick II Marine Construction, Inc. (“Orick”), to build a new shared dock, with each party agreeing that they would separately contract with Orick and pay for their portion of the dock and any appurtenances thereto built over their property.

While the Babcocks quickly approved Orick's proposed design, the Smiths did not, spending several months suggesting alterations to Orick. Ultimately, the Smiths’ efforts culminated in Orick emailing the Babcocks a consent form required by the City of Naples and a “revised drawing” of the proposed dock approved by the Smiths.² Shortly after this email, the Babcocks executed a written agreement to build the newly proposed dock, although they claim now to have been under the mistaken impression that they were approving the original design.

Because neither the Smiths nor the Babcocks lived in Florida full-time, neither witnessed the construction. The Smiths appear to have been the first to see the new dock in person and quickly admitted that it did not meet their expectations. While Mr. Smith stated that the dock worked for him, he acknowledged that it was “terrible” for the Babcocks. Subsequently, both neighbors met with Orick to determine how best to remedy the issues created by the new dock. During the meeting, the neighbors orally agreed that the new dock was a mistake and that it should be removed, but they never agreed on more definite terms, including the design for a replacement, when the removal should take place, and who should bear the costs of Orick's efforts.

After discussions broke down, the Babcocks filed an action against the Smiths for declaratory relief, claiming, among other things, that the new dock “injuriously increases the burden upon” their property, the servient tenement, because it “substantially interferes with [their] access to the water, their views, and their enjoyment of their property[.]” In addition to declaratory relief, the Babcocks sought an order requiring the removal of the new dock and awarding damages.

In response, the Smiths filed a counterclaim for declaratory relief, claiming that they had an easement permitting the shared dock and that the Babcocks were not entitled to an unobstructed view of the water from their property. The Smiths reiterated that while they were amenable to removing the new dock, their agreement was conditional—the parties must first agree on the plans for the replacement dock, and how the cost of removal and replacement would be allocated between the parties.

Thereafter, the Babcocks filed a motion for partial summary judgment asking the trial court to order the removal of the new dock. The Smiths opposed the motion, arguing that the Babcocks have not shown that the new dock violates any common law or statutory right concerning their view and use of the water. They also suggested that the Babcocks may have waived those rights by agreeing to Orick's last proposal, which the Smiths allege included a “revised drawing” of the proposed dock which was eventually built. Finally, they argued that there are a host of other genuinely disputed issues of fact and law that either relate directly to the question of whether the new dock should be removed, including whether there was an agreement to remove the new dock before the parties agreed to a replacement, or are intertwined with that issue such that it would be premature to determine whether the new dock should be removed until other issues, like the parties’ riparian rights, are resolved by the trial court.

Ultimately, the trial court agreed with the Babcocks and entered an order explaining, in relevant part, as follows:

[T]he only contested material fact in this case is what will replace the new joint boat dock. Because the new joint boat dock severely impacts the Plaintiffs’ view of the water and sunsets, the Plaintiffs wish to tear out the new joint boat dock and figure out its replacement later, while the Defendants wish the new joint boat dock to remain in place until the parties agree on the parameters of the replacement boat dock.

․

Contrary to the arguments of the Defendants, there are no genuine issues of material fact in this case about whether the original joint boat dock was intended to be demolished or that the new joint boat dock was constructed in a way or in a location that either party thought was correct or proper.

For this reason and no other, the trial court granted the motion and ordered the new dock be removed “as soon as practicable,” with the Babcocks bearing the initial costs of removal with the right to seek reimbursement if such an award is found appropriate later in the case. This appeal followed.

The first issue presented by this appeal is whether we have jurisdiction to consider the trial court's interlocutory order granting the Babcocks’ motion for partial summary judgment. This Court has jurisdiction to review those non-final orders set forth in Florida Rule of Appellate Procedure 9.130. See Jenne v. Maranto, 825 So. 2d 409, 413 (Fla. 4th DCA 2002) (“The enumerated categories of permissible nonfinal review stated in rule 9.130 must be limited to their plain meaning. The rule does not authorize judges to enlarge its provisions to permit review of nonfinal orders not specified within its provisions.” (internal citation omitted)). The Smiths argue that jurisdiction is proper under Rule 9.130(a)(3)(C)(ii), which gives an appellate court jurisdiction to consider orders that “determine ․ the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve, or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment.” We agree.

The order on appeal states as follows:

The new joint boat dock shall be removed as soon as practicable ․ The Defendants shall be given thirty (30) days from the date of this Order to find alternative docking arrangements for their boat which is currently docked at the new joint boat dock. If the Defendants remove their boat before the thirty (30) days set forth above, the Plaintiffs shall be free to commence removal of the new joint boat dock at that time.

The power given to the Babcocks to remove the dock dispossesses the Smiths of their right to the dock, which was partially built on their land and with their funds. Black's law dictionary defines possession as “[t]he fact of having or holding property in one's power; the exercise of dominion over property.” Possession, Black's Law Dictionary (11th ed. 2019). On its face, the trial court's order gave the Babcocks the exclusive right to exercise dominion over property—to possess it—and it simultaneously stripped the Smiths of the same. Therefore, we have jurisdiction to consider this appeal pursuant to Rule 9.130(a)(3)(C)(ii).

Having found jurisdiction, we next consider whether the trial court erred by entering a partial summary judgment. Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). “A genuine dispute of material fact exists if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Perez v. Citizens Prop. Ins. Corp., 345 So. 3d 893, 895 (Fla. 4th DCA 2022) (quoting In re Amends. to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 75 (Fla. 2021)). In determining whether a genuine dispute of material fact exists, the Court must view the evidence and draw all factual inferences therefrom in a light most favorable to the non-moving party and must resolve any reasonable doubts in the non-moving party's favor. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). Summary judgment should only be granted “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party[.]” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The ruling on a motion for summary judgment is subject to a de novo review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

In its order, the trial court articulated two reasons for ordering the new dock to be removed. First, the order stated that “there are no genuine issues of material fact in this case about whether the original joint boat dock was intended to be demolished or that the new joint boat dock was constructed in a way or in a location that either party thought was correct or proper.” But the fact that the parties, particularly the Smiths, believe the new dock was not built according to their expectations is not irrefutable evidence that the parties agreed that the new dock should be removed.

Second, the trial court based its ruling on the presumption that both parties agreed to removal of the new joint boat dock, and that the agreement is enforceable. While there is no dispute that the parties discussed an agreement about the removal of the new dock, there is conflicting evidence concerning the timing of its removal. Specifically, there is evidence that the Smiths made their agreement to remove the dock conditioned on the parties reaching an agreement about a replacement dock—something that has yet to occur. The disputed evidence concerning the terms of the parties’ purported agreement calls into question whether there was a meeting of the minds and, thus, an enforceable agreement to immediately remove the dock. See Allen v. Berry, 765 So. 2d 121, 122 (Fla. 5th DCA 2000) (“Where it appears that the parties are continuing to negotiate as to essential terms of an agreement, there can be no meeting of the minds.”); Suggs v. Defranco's, Inc., 626 So. 2d 1100, 1101 (Fla. 4th DCA 1993) (“Where essential terms of an agreement remain open, subject to future negotiation, there can be no enforceable contract.”). Thus, there is a genuine dispute about a fact central to the trial court's summary judgment ruling, namely, whether the parties agreed that the new dock can be removed absent an agreement for a replacement. Accordingly, we reverse and remand for further proceedings.

REVERSED and REMANDED.

FOOTNOTES

1.   This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.

2.   The Babcocks dispute that the revised drawing was actually attached to Orick's email.

NARDELLA, J.

WOZNIAK and SMITH, JJ., concur.