                                           IN THE DISTRICT COURT OF APPEAL
                                           FIRST DISTRICT, STATE OF FLORIDA

CRP II – MIRAMAR, LLC,                     NOT FINAL UNTIL TIME EXPIRES TO
                                           FILE MOTION FOR REHEARING AND
      Appellant,                           DISPOSITION THEREOF IF FILED

v.                                         CASE NO. 1D15-2504

THE FRENCH QUARTERS
CONDOMINIUM OWNER’S
ASSOCIATION, INC., a not-for-
profit corporation,

      Appellee.

_____________________________/

Opinion filed November 2, 2016.

An appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.

Samuel B. Taylor of Samuel B. Taylor, P.A., Destin, for Appellant.

D. Michael Chesser and Tara A. Hagan of Chesser & Barr, P.A., Shalimar, for
Appellee.




WINSOR, J.

      This appeal involves two coastal condominium projects and an agreement

between their owners. Miramar Enterprises of FWB, Inc. (Miramar), was

developing a new phase of its mixed-use development. French Development, Inc.
(French), owned an adjacent property. The two entities entered into an “Easement

and Maintenance Agreement,” in which Miramar agreed to construct on its

property a swimming pool and other improvements that both properties’ residents

could use. In return, French agreed to share maintenance costs of those

improvements. The agreement explicitly stated that “[t]he Easements, duties and

obligations herein granted and assigned, shall be deemed to be covenants

appurtenant to and to run with the ownership of the [properties] and their

respective heirs, successors and assigns.” The parties also agreed to assign their

rights and obligations under the agreement to their respective homeowners’

associations.

      The pool and related improvements never came to be. Miramar notified

French that it could not construct them because of “[m]arket conditions, financing

conditions, and contractor issues.” French’s successor in interest, the appellee

homeowner association, sued Miramar. While that litigation was pending, Miramar

gave up the property through a deed in lieu of foreclosure, and the new owner—

CRP II–Miramar LLC (CRP II), the appellant here—was joined as a defendant.

      The operative complaint presented two counts. The first sought a declaration

that the agreement constituted a covenant running with the land, meaning it bound

CRP II as the new owner. The second count alleged that CRP II and Miramar

breached the agreement by failing to build the pool and other amenities. CRP II

                                        2
asserted several defenses, including that the agreement was not a covenant running

with the land, meaning that as the new owner it had no obligation to perform.

      The trial court granted partial summary judgment as to the first count,

concluding that the agreement was a covenant running with the land and bound

CRP II. The court never reached the breach of agreement count, which the plaintiff

voluntarily dismissed. Therefore, the only matter before this court is the trial

court’s declaration that the agreement ran with the land. Nonetheless, CRP II fills

much of its briefs with arguments about whether the doctrines of frustration of

purpose or impracticability apply and whether the agreement “should be voided

because of materially changed circumstances.” It also faults the trial court for

“fail[ing] to recognize that it is the unforgiving marketplace that rules real estate

development.” Perhaps those issues relate to a breach of contract claim—an issue

we do not address here—but they do not factor into whether the trial court was

wrong in declaring that the covenant ran with the land. As to the issue before us,

we find no error.

      AFFIRMED.

WOLF and WINOKUR, JJ., CONCUR.




                                         3
