       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                 CITY OF POMPANO BEACH, FLORIDA,
                             Appellant,

                                     v.

NANCY C. BEATTY, As Trustee of the NANCY C. BEATTY REVOCABLE
LIVING TRUST, Dated October 26, 1990, and As Successor Co-Trustee
   of the WILLIAM K. BEATTY REVOCABLE LIVING TRUST, Dated
 October 26, 1990, and WILLIAM K. BEATTY, JR., As Successor Co-
  Trustee of the WILLIAM K. BEATTY REVOCABLE LIVING TRUST,
                       Dated October 26, 1990,
                             Appellees.

                     Nos. 4D16-2621 and 4D16-3699

                              [July 12, 2017]

  Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Dale Ross, Judge; L.T. Case No. 09-
020579 CACE (08).

   Scott C. Cochran and W. Tucker Craig of Billing, Cochran, Lyles, Mauro
& Ramsey, P.A., Fort Lauderdale, for appellant.

    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale,
for appellees.

HANZMAN, MICHAEL A., Associate Judge.

I. INTRODUCTION

    On May 1, 1974, Appellee, Nancy C. Beatty (and her husband William
K. Beatty), as lessors, and Daniel L. Garnsey, as lessee, entered into a
ninety-nine-year lease encumbering real property located in Broward
County. In October 1989, Appellant, the City of Pompano Beach, assumed
the lessee’s interest. The lease required specified rental payments for
years one through five, with increases after the fifth year based on the cost
of living index commencing “on the first (1st) day of the 61st month of the
basic term of this Lease, and on every 37th month thereafter.” The
contract also provided that:
      Rental payments shall be subject to reappraisal every twenty
      (20) years by independent MAI of land and improvements at
      the option of the Lessors and at their expense to show return
      of 12% of land value, and 6% of improvements but in no event
      less than rental payment for the 19th year, 39th year, and
      59th year, etc.

(Emphasis added).

    Appellees first sought to exercise this reappraisal option in 2006 – the
thirty-third (33) year of the lease term. Based upon this reappraisal,
Appellees then demanded increased rent. When Appellant failed to accede
to this demand, Appellee filed suit for breach of contract. Appellant, as an
affirmative defense, predictably insisted that the property was subject to
reappraisal only in years twenty, forty, sixty, and eighty and, as a result,
it was not in breach for failing to pay increased rent based upon a
reappraisal that was done in year thirty-three.

   Appellant eventually moved for summary judgment based upon what it
maintained was the clear and unambiguous language of section 2.2(e) of
the lease. Appellees cross-motioned on the identical issue, arguing they
were entitled to a rent increase because a first reappraisal was permitted
at any time so long as twenty years had elapsed from the date the lease
was executed (1974), and successive reappraisals were permitted so long
as twenty years had elapsed since the most recent reappraisal.

   The trial court granted the Appellees’ motion, agreeing with their
interpretation of the contract. We do not, and conclude that § 2.2(e) of the
lease clearly and unambiguously granted the lessor a right to reappraise
the property at specified dates, and only those dates. We therefore reverse.

II.   ANALYSIS

    As this court has said before, “contracts are voluntary undertakings,
and contracting parties are free to bargain for—and specify—the terms and
conditions of their agreement.” Okeechobee Resorts, L.L.C. v. E Z Cash
Pawn, Inc., 145 So. 3d 989, 993 (Fla. 4th DCA 2014). That freedom is
indeed a constitutionally protected right. Nw. Nat’l Life Ins. Co. v. Riggs,
203 U.S. 243, 252–53 (1906); Hoffman v. Boyd, 698 So. 2d 346, 348 (Fla.
4th DCA 1997). And when parties choose to agree upon certain terms and
conditions of their contract, it is not the province of the court to second-
guess their wisdom or “substitute [its] judgment for that of the parties in
order to relieve one from an alleged hardship of an improvident bargain.”
Int'l Expositions, Inc. v. City of Miami Beach, 274 So. 2d 29, 30-31 (Fla. 3d

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DCA 1973). Rather, the court’s task is to apply the parties’ contract as
written, not “rewrite” it under the guise of judicial construction. Gulliver
Schs., Inc. v. Snay, 137 So. 3d 1045, 1047 (Fla. 3d DCA 2014) (“Where
contracts are clear and unambiguous, they should be construed as
written, and the court can give them no other meaning.”) (quoting Khosrow
Maleki, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So. 2d 628, 631 (Fla. 4th
DCA 2000)); Pol v. Pol, 705 So. 2d 51, 53 (Fla. 3d DCA 1997) (“[A] court
cannot rewrite the clear and unambiguous terms of a voluntary contract.”).

   The contract here could not be clearer. First, it says that the property
is subject to reappraisal “every twenty years,” not any time the lessor
desires “so long as” twenty years has passed since inception or a prior
appraisal. And if that were not enough, it specifies that a reappraisal may
not result in a rental obligation “less than [the] rental payment for the 19th
year, 39th year, 59th year, etc.” – not less than the rental payment for the
year “prior to reappraisal,” whatever year that may be. Thus, reading this
provision as a whole we have no difficulty concluding that it clearly and
unambiguously permits reappraisal only at years twenty, forty, sixty, and
eighty. 1

   Although the clarity of the provision in dispute ends the analysis, we
also point out that Appellees’ tortured “interpretation” amounts to a re-
write of the lease on terms significantly more favorable to the lessor only.
At the time this contract was entered into, neither party knew – or had any
way to predict – what the condition of the real estate market would be at
the time reappraisal was authorized (i.e., years twenty, forty, sixty, and
eighty). So a reappraisal might benefit the lessor and it might not. The
parties would simply have to accept the “market” as they found it. But
under Appellees’ “interpretation” they could sit back and exercise the

1 Nor is the provision ambiguous simply because the litigants ascribe different
meanings to the language employed – something that occurs every time the
interpretation of a contract is litigated. Incorrect and even absurd interpretations
of unambiguous contracts are often advanced in these types of disputes. But a
true ambiguity exists only when the language at issue “is reasonably susceptible
to more than one interpretation.” Lambert v. Berkley S. Condo. Ass’n, 680 So. 2d
588, 590 (Fla. 4th DCA 1996); Campaniello v. Amici P’ship, 832 So. 2d 870, 872
(Fla. 4th DCA 2002) (“[W]hen the terms of a written instrument are disputed and
rationally susceptible to more than one construction, an issue of fact is presented
. . . .”); Am. Med. Int’l, Inc. v. Scheller, 462 So. 2d 1, 7 (Fla. 4th DCA 1984)
(“[F]anciful, inconsistent, and absurd interpretations of plain language are always
possible. It is the duty of the trial court to prevent such interpretations.”).

.


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reappraisal option whenever the market would benefit them the most, so
long as twenty years had elapsed since the execution of the lease. So if
the market was weak in year twenty (or forty, sixty, or eighty), Appellees
could just accept the cost of living increases, wait for the market to rise,
and then – at the most opportune time – elect to reappraise. Of course if
the market was strong in years twenty, forty, sixty, and eighty, the lessee
would have no corresponding right to delay reappraisal.

   The bottom line is that Appellees’ interpretation gives it something the
contract does not – an “option” to reappraise when – in its view – to do so
would be most advantageous. We will not sanction such a one way judicial
re-write.

   The trial court’s final judgment in favor of Appellees is reversed with
directions to enter final judgment in favor of Appellant. Given our reversal
of the final judgment, we likewise reverse the final judgment awarding
Appellees’ attorney’s fees and costs. See City of Hollywood v. Witt, 939 So.
2d 315, 319 (Fla. 4th DCA 2006) (“[W]here an award of attorney's fees is
dependent upon the judgment obtained, the reversal of the underlying
judgment necessitates the reversal of the fee award”).

   Reversed and remanded.

DAMOORGIAN and CIKLIN, JJ., concur.

                           *          *        *

   Not final until disposition of timely filed motion for rehearing.




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