          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

   JANOURA PARTNERS, LLC, a Florida Limited Liability Company,
                        Appellant,

                                     v.

           PALM BEACH IMPORTS, INC., a Florida corporation,
                           Appellee.

                              No. 4D17-2582

                           [December 19, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Edward A. Garrison, Judge; L.T. Case No.
502015CA010199XXXXMB.

  Wayne Kaplan of Wayne Kaplan, P.A., Boca Raton and Philip M.
Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for
appellant.

  Brian B. Joslyn and Ronald E. Crescenzo of Ciklin Lubitz, West Palm
Beach, for appellee.

MAY, J.

   To grant an injunction or not was the question to be decided by the trial
court. The trial court granted the injunction enforcing an easement
between two commercial properties, a shopping center and an auto
dealership. The shopping center now appeals. It argues the trial court
erred in granting a permanent injunction in favor of the auto dealership.
We disagree and affirm.

   This dispute involves two property owners. On one site is an auto
dealership. On the other is a strip mall shopping center. The prior owners
of both properties entered into an ingress/egress easement in 1989 when
the auto dealership was being constructed. The easement is contained in
a recorded cross access agreement (“CAA”), which allows for vehicular and
pedestrian traffic between the two parcels.

   The CAA provided:
      1. [The auto dealership] hereby grants to [the shopping
      center], its successors, assigns, licensees, and invitees a non-
      exclusive vehicular and pedestrian ingress and egress
      easement over, across, and upon those portions of the auto
      dealership property described in Exhibit “B” attached hereto,
      from time to time reasonably designated for vehicular
      pedestrian use by [the auto dealership], their successors and
      assigns.

      2. [The shopping center] hereby grants to [auto dealership],
      his successors, assigns, licensees, and invitees a non-
      exclusive vehicular and pedestrian easement over, across, and
      upon those portions of the [shopping center], described in
      Exhibit “A” attached hereto, from time to time reasonably
      designated for vehicular and pedestrian use by [the shopping
      center].

   Attached to the 1989 CAA were detailed property descriptions of both
properties. The CAA also contained several provisions that obligated the
auto dealership to conduct maintenance and keep up landscaping at its
expense. There were no similar conditions for the shopping center.

    This was the first auto dealership approved by the Town of Jupiter, and
it was subject to certain conditions. One condition prohibited the loading
and unloading of automobile transports on Indiantown Road. That activity
had to take place on the auto dealership or an adjacent property.

   In 1993, the Town of Jupiter entered into a developer’s agreement with
the then owner of the auto dealership. This agreement provided that the
CAA would be assignable, but also stated that “[l]oading and unloading of
vehicle transport trucks, all goods, materials, etc. shall occur entirely
within the confines of the vehicle dealership.”

   The current owner acquired the auto dealership property in 2011. 1 At
that time, the auto dealership typically had two auto transports a week,
each of which lasted approximately 30 minutes. A year later, the auto
dealership entered into an agreement with a successor owner of the
shopping center to amend the CAA for the purpose of installing a gate to
secure the dealership after-hours. Attached to that “Amendment to Cross
Access Agreement” were the same descriptions of the properties from the

1 The auto dealership and shopping center are used to describe the two parties
even though the properties went through multiple ownerships over the course of
the history of the CAA. The parties are the current owners of the properties.

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CAA and a site plan of the shopping center.

    When the auto dealership later sought to make modifications to its
property, the Town of Jupiter required it to obtain a letter from the
shopping center owner stating that the auto dealership was permitted to
load and unload automobile transports on the shopping center property.
The shopping center agreed to write the letter confirming this arrangement
in exchange for $500 a month to defray costs associated with the wear-
and-tear on its property. The agreement provided that the arrangement
would continue on a month-to-month basis and could be modified at any
time or terminated by either party with 30 days’ written notice. This May
2014 letter agreement was not recorded, but the shopping center provided
it to the Town of Jupiter.

   In December of 2014, yet another owner acquired the shopping center
property. The loading and unloading of vehicles on the shopping center
property continued uncontested until April of 2015, when the shopping
center’s new owner terminated the May 2014 agreement by giving the auto
dealership 30 days’ written notice. The shopping center notified the Town
of Jupiter of the change, stating it “was necessary due to ongoing access
issues and property damage we have experienced since our purchase of
the center.” It further explained that it believed “this agreement was
required by the Town of Jupiter in order to allow the dealership to operate”
so it “felt it was our obligation to let you know that the agreement was
being terminated.”

   The auto dealership’s attorneys wrote the Town of Jupiter, stating that
the shopping center was attempting to terminate the rights granted by the
CAA and argued that the agreement could not be unilaterally cancelled.
Following the letter to the auto dealership, the shopping center asked for
$2,500 per month to continue the arrangement, pursuant to a new
agreement. When negotiations failed, the auto dealership filed a complaint
against the shopping center seeking declaratory and injunctive relief.

   The auto dealership moved for a temporary injunction to prohibit the
shopping center from interfering with its loading and unloading pursuant
to the CAA.      The shopping center moved to dismiss and filed a
counterclaim and answer. It argued the auto dealership was not entitled
to relief because the easement unambiguously does not allow for loading
and unloading, and the shopping center had permissibly terminated the
arrangement according to the May 2014 agreement. The shopping center’s
counterclaim sought injunctive relief to prohibit the auto dealership from
loading and unloading vehicles on its property and included a count for
trespass.

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    The trial court that entered the preliminary injunction concluded the
easements were ambiguous due to the attachment of the legal description
of the entire shopping center property, and looked to the circumstances
surrounding the creation of the easement. The trial court granted the auto
dealership’s motion for temporary injunction and denied the shopping
center’s motion for temporary injunction. We affirmed. Janoura Partners,
LLC v. Palm Beach Imports, Inc., 212 So. 3d 372 (Fla. 4th DCA 2016) (table).

    The parties then tried the case. The successor judge found the attached
site plan created an ambiguity. It agreed with the analysis used by the
predecessor judge.       In granting the auto dealership’s permanent
injunction, the court stated:

      When construing the scope of an easement, the Court must
      attempt to fulfill the parties' intentions, and thus the Court
      may consider the circumstances surrounding the creation of
      the easement. Notwithstanding the testimony of several
      witnesses that the Town of Jupiter has for years had a policy
      regarding Cross Access Agreements between adjacent
      commercial properties along Indiantown Road, the evidence
      also shows that . . . [the auto] dealership with no space or
      room to load and unload auto transports . . . requested
      approval of a cross access driveway and entered into the CAA
      with the owner of [the shopping center].

      The Court finds compelling the [auto dealership’s] argument
      that (a) there was no need for a pedestrian cross access point
      because there was a sidewalk running in front of both
      properties; and (b) no real need for vehicular cross access
      because both properties had curb cuts and driveways more
      than capable of providing access between the properties; and
      (c) that the Court should examine all the circumstances
      surrounding negotiation and execution of the CAA in 1989.

      ....

      When the Court looks to why [the auto dealership] requested
      the CAA and what [it] intended to acquire, and then factors in
      the uncontradicted testimony that, from the Dealership's
      earliest days, it was loading and unloading auto transports on
      [the shopping center property], competent, substantial
      evidence exists in this record to support [the auto dealership’s]
      position that the CAA was intended to permit such activities.

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   The shopping center argues the permanent injunction should be
reversed because the language in the CAA was unambiguous. It claims
“ingress and egress” are well-defined terms that preclude the auto
dealership from parking to load and unload cars, and the auto dealership
doing so exceeds the scope of the granted easement. The shopping center
argues the court erred in admitting extrinsic evidence to determine the
scope of ingress/egress and the purpose of the CAA. It contends the latent
ambiguity argument claimed by the auto dealership was not properly
preserved. And, it suggests the permanent injunction creates a grave
injustice by allowing the auto dealership to use the shopping center’s
property without compensation.

   The auto dealership responds that there is a latent ambiguity, and the
court correctly admitted evidence to determine the scope and purpose of
the easement. It asks us to affirm the permanent injunction.

    “To the extent it rests on factual matters, an order imposing a
permanent injunction lies within the sound discretion of the trial court
and will be affirmed absent a showing of abuse of discretion.” Operation
Rescue v. Women's Health Ctr., Inc., 626 So. 2d 664, 670 (Fla. 1993).
However, to the extent that the injunction rests on legal grounds, the order
is subject to de novo review. Id.

   We have de novo review of whether a contract is ambiguous. Hastie v.
Ekholm, 199 So. 3d 461, 464 (Fla. 4th DCA 2016). If ambiguous, “we
review the trial court's interpretation of the [contract] for competent
substantial evidence.” Id.

   The shopping center and auto dealership agree the dispute centers
upon the interpretation of the CAA’s easement. The issue is whether the
court was permitted to look to the intent behind the contract formation; if
the terms are unambiguous, the court must give effect to the terms as
stated, but if the terms are ambiguous, the court may consider extrinsic
evidence to determine the intent of the parties. See Sandlake Residences,
LLC v. Ogilvie, 951 So. 2d 117, 120 (Fla. 5th DCA 2007).

   Within the realm of ambiguity, there are rules. “Patent ambiguities are
on the face of the document, while latent ambiguities do not become clear
until extrinsic evidence is introduced and requires parties to interpret the
language in two or more possible ways.” Prime Homes, Inc. v. Pine Lake,
LLC, 84 So. 3d 1147, 1151–52 (Fla. 4th DCA 2012). Put differently:

      It is [latent], where the language employed is clear and

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       intelligible and suggests but a single meaning, but some
       extrinsic fact or extraneous evidence creates a necessity for
       interpretation or a choice among two or more possible
       meanings. But a patent ambiguity is that which appears on
       the face of the instrument, and arises from the defective,
       obscure, or insensible language used.

Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So. 2d 544, 547 (Fla. 1st
DCA 1973).

   Here, ingress/egress are clear and intelligible terms, but the addition
of the legal description of the properties suggests a latent ambiguity
making it necessary to consider why the agreement was made in the first
place. This is precisely what the trial court found. There is competent
substantial evidence to support the trial court’s finding.

    As the auto dealership argues, the attachment of the legal description
of the entirety of the shopping center property to the CAA created a latent
ambiguity because the metes and bounds description detailed the entire
property, and was not limited to the particular area of ingress and egress
between the two properties suggested in the CAA. See Branscombe v.
Jupiter Harbour, LLC, 76 So. 3d 942, 947 (Fla. 4th DCA 2011) (holding “the
agreement with its attached parking lot plan created an ambiguity allowing
the trial court to consider parol evidence.”).

   Once the latent ambiguity was found to exist, the trial court properly
considered extrinsic evidence to give meaning to the CAA and the parties’
rights under it. Considering that evidence, the trial court concluded the
CAA was a valid easement. It further concluded that the intention of the
CAA was the loading and unloading of auto transports on the shopping
center property. And, there was no evidence that the use of the property
“interfered in any way with anyone or any aspect of” the shopping center,
as the trial court correctly noted. 2

    We therefore affirm.

    Affirmed.

LEVINE and KLINGENSMITH, JJ., concur.


2 We express no opinion on whether the shopping center is entitled to
compensation for the imposition of the permanent injunction and a permanent
easement on the shopping center’s property.

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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