          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          BROWARD COUNTY,
                              Appellant,

                                     v.

                             JOSE P. FONT,
                               Appellee.

                              No. 4D19-150

                            [January 22, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos Augusto Rodriguez, Judge; L.T. Case No.
CACE18005571(14).

   Andrew J. Meyers, Broward County Attorney; Rocio Blanco Garcia and
Joseph K. Jarone, Deputy County Attorneys, Fort Lauderdale, for
appellant.

  Jose P. Font and Jaime Martin of Font & Nelson, PLLC, Fort
Lauderdale, for appellee.

MAY, J.

   Broward County appeals a final summary judgment. It argues the trial
court erred in determining the landowner was entitled to a reduction in
his property’s appraisal market value, pursuant to a settlement agreement
between Broward and the City of Dania. We agree and reverse.

   In 1995, Broward County and the City of Dania entered into a
settlement agreement (Interlocal Agreement or “ILA”) over the expansion of
the Fort Lauderdale Airport. Pursuant to the ILA, Broward agreed to a
program called the Conveyance and Release Agreement Program (“CAR”).
That agreement allowed certain homeowners to execute a release relating
to the airspace above their property in exchange for a 14.4% or 21.9%
reduction of the property’s appraisal market value. Section 2(b)(ii)b of the
2013 ILA limits CAR access to eligible property owners.

      b. The Voluntary Sales Assistance Program (both Standard
      Program and CAR Program) shall only be available for owners
      of all single family homes, condominium units, townhomes,
      and 2-unit residences located within the 65+ DNL noise
      contours who purchase their residences before the Effective
      Date of this Agreement.

(Emphasis added).

    The relevant ILA’s effective date was November 19, 2013.          The
landowner purchased his property on February 8, 2013, prior to the
effective date. Section 2(b) of the ILA provides that participation in the
program is contingent upon the availability of federal funds.

   In 2016, the landowner requested to be included in the CAR for a
reduction in the appraised market value of his home. Broward rejected
his request because he was not the owner of a qualifying residence. The
ILA provided that to be eligible, property owners needed to have purchased
their “residences” before the ILA’s effective date. According to Broward,
the landowner did not have a certificate of occupancy for his property on
that date, so he did not qualify. Broward also confirmed that federal funds
were unavailable because the landowner was not an eligible homeowner.

    The landowner sued Broward alleging breach of the ILA (Count I) and
seeking a declaratory judgment that he was entitled to participate in the
CAR (Count II). He alleged he purchased the property on February 8, 2013
from a seller who was in the rebuilding process. He alleged that after
purchasing the property, he sought permits and contracts to continue
rebuilding the home. He asserted that he was fully vested in the home’s
reconstruction that was originally built long before the underlying
litigation ensued.

   The landowner immediately moved for summary judgment. He argued
entitlement to compensation for the runway expansion under the ILA. He
attached permits and his contract with the general contractor. 1

    Broward answered and raised twelve affirmative defenses, including:

      •   sovereign immunity
      •   the landowner was not a third-party beneficiary of the ILA
          and lacked standing

1 The unsworn, uncertified exhibits included an agreement between a contractor
and the landowner dated March 9, 2013, for drawing plans and construction of
the residence, and a permit dated October 10, 2013, for building demolition.


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      •   the landowner was not the owner as of the ILA’s effective
          date
      •   the statute of limitations
      •   the landowner had notice of the runway when he
          commenced construction
      •   the landowner failed to meet prerequisite conditions under
          the program, and others.

   Broward filed a cross-motion for summary judgment. It argued it had
sovereign immunity from suit, the landowner was not a third-party
beneficiary to the ILA, and he did not own a residence on the ILA’s effective
date. In support of its cross-motion, Broward filed the CRA’s project
manager’s affidavit.

   The manager attested that the landowner did not qualify as an eligible
homeowner under the ILA. He attested that the prior residence was
demolished in approximately 2011 before the landowner purchased the
property; and the new residence was not completed and did not have a
certificate of occupancy until after the ILA’s effective date.

   Between 2010 and 2018, the Property Appraiser took photos of the
property showing a structure in 2010. By 2012, all buildings on the
property had been demolished. On December 2, 2013 (thirteen days after
the ILA’s effective date), there were only “the beginnings of a foundation
and construction on the site.” The Property Appraiser did not assess a
value for any building on the property until 2015, as “there was no
substantially complete building structure in existence on the Property
during the prior tax year (i.e., based on the period January 1 through
December 31, 2013).”

   In opposition to the landowner’s motion, Broward argued that the
landowner failed to submit affidavits supporting his motion.            The
submitted documents were neither sworn nor certified and should not be
considered. Broward argued the landowner was not entitled to summary
judgment because Broward was immune from suit under sovereign
immunity. Broward also argued the landowner was not a third-party
beneficiary of the ILA and did not own a residence on its effective date.

   The landowner opposed Broward’s motion for summary judgment. He
argued that Broward was bound by its CAR project manager’s deposition
testimony. There, when asked what portion of the ILA prevented the
landowner from being entitled to the 21.9 percent of the appraised value
of his house, the project manager never mentioned sovereign immunity.


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The landowner argued that Broward could not take a position contrary to
the project manager’s sworn testimony. 2

   The court conducted a hearing on the motions and made oral
conclusions:

       Court: Okay. Here’s what I’m going to do: I’m going to grant
       the – the county’s motion as to count I. This is not a breach
       of contract.

       And as far as [the landowner’s] motion for summary judgment
       on the declaratory judgment, I’m going to find that you meet
       the definition of a residence, and therefore, that you are – as
       defined with the – agreement, you’re entitled to benefits.
       Okay. Let’s do it that way.

   The County asked for clarification on Count I and the court stated that
the County was immune from breach of contract claim in count I under
sovereign immunity. On the declaratory judgment count, the court found
that landowner met the definition of a residence and that he was entitled
to the benefits. The court instructed the parties to draft an order. The
court entered the final summary judgment for the landowner on the
declaratory relief count.

  We have de novo review of a final summary judgment. Volusia Cty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

   Broward argues the trial court should have granted its motion for
summary judgment because the CAR was available only to those who
owned a qualifying residence before the ILA’s effective date. It argues that
although the landowner bought the property on February 8, 2013, the
property only had a partially completed concrete foundation. It did not
qualify as a residence under the terms of the ILA.

    Section 2(b)(ii)b of the ILA states:

       [The CAR] shall only be available for owners of all single family
       homes, condominium units, townhomes, and 2-unit

2The landowner also argued that his claim was not barred by sovereign immunity
because Broward waived that defense when it entered into the ILA. The ILA was
an express written contract into which Dania Beach and Broward had authority
to enter.


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      residences located within the 65+ DNL noise contours who
      purchase their residences before the effective date of this
      Agreement.

(Emphasis added).

   Broward argues the court incorrectly concluded that having the ability
to construct a residence entitles the landowner to participate in the CAR
without owning a residence on the ILA’s effective date. It suggests the
court rewrote the terms of the ILA to include the homeowner. It argues
that even if the court’s reading of the ILA was correct, the landowner failed
to provide any admissible evidence that he intended to construct a
residence on the property because his documents were neither certified,
nor sworn to.

   The landowner responds that he purchased the property prior to the
ILA’s effective date. He suggests that the ILA identified eligible property
owners as third-party beneficiaries by way of a 2008 Federal Aviation
Administration zoning map that indicated properties projected to be
damaged by the noise pollution.

   We disagree with the landowner. The zoning map may have set out the
area over which the ILA applied, but it did not establish the basis for
reimbursement. Section 2(b)(ii)b of the ILA specifically set forth the
requirements for participation in the CAR. It required that residents of
that zoned area have purchased their “residences” prior to the signing of
the ILA.

   Pursuant to the ILA, the landowner did not own a qualifying
“residence.” As Broward points out, “residence” is defined in Merriam-
Webster, https://www.merriam-webster.com/dictionary/residence, to
mean “the place where one actually lives as distinguished from one’s
domicile or a place of temporary sojourn” and “a building used as a home.”
The landowner did not live on the property on the ILA’s effective date nor
was he taxed as owning a residence at that time. The trial court erred in
construing the ILA beyond its common-sense terms. We therefore reverse
and remand the case to the trial court for entry of summary judgment for
Broward. 3

3Because we reach this conclusion as a matter of law, we need not address the
other issues raised (the sufficiency of the documents attached to the landowner’s
motion for summary judgment and the sovereign immunity defense).



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  Reversed and Remanded.

TAYLOR and CONNER, JJ., concur.

                         *        *       *

  Not final until disposition of timely filed motion for rehearing.




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