               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



DAVID L. HARKLESS,                           )
                                             )
             Appellant,                      )
                                             )
v.                                           )                Case No. 2D15-5385
                                             )
DAVID A. LAUBHAN and SUSAN W.                )
LAUBHAN,                                     )
                                             )
             Appellees.                      )
                                             )

Opinion filed December 21, 2016.

Appeal from the Circuit Court for DeSoto
County; Don T. Hall, Judge.

Glenn N. Siegel, of Glenn N. Siegel, P.A.,
Port Charlotte, for Appellant.

Warren R. Ross, of Wotitzky, Wotitzky, Ross
& McKinley, P.A., Punta Gorda, for
Appellees.



BADALAMENTI, Judge.

             David L. Harkless appeals the trial court's final summary judgment entered

in favor of David and Susan Laubhan. The crux of this dispute is whether Mr. Harkless

reserved the right to receive rent from a parcel of land that he used to own and that the

Laubhans eventually came to own.
              We reverse the grant of summary judgment. Mr. Harkless reserved his

right to receive rent in a sales contract with an intermediate purchaser. That reservation

did not merge into any subsequent deed. Nevertheless, there remains a genuine issue

of material fact as to whether the Laubhans were bona fide purchasers for value and

without notice, rendering summary judgment inappropriate. Our reversal extends to any

relief the trial court provided to the Laubhans on their counterclaim.

                  I. STATEMENT OF FACTS & PROCEDURAL POSTURE

              Mr. Harkless owned land in DeSoto County. In 2008, he entered into a

land lease agreement (the Lease) with Verizon Wireless. Under the Lease, Mr.

Harkless leased a 100- by 100-foot parcel of his land (the Parcel) to Verizon, along with

an accompanying easement for Verizon to build a cell tower. In return, Verizon agreed

to pay Mr. Harkless $13,800 a year in rent. Verizon did not commence construction of

the tower until May 2012.

              In 2011, Mr. Harkless sold ten acres of his land to Reed and Beth Lolly,

who planned to operate a blueberry farm. Those ten acres contained the Parcel.

Paragraph 18 of the sales contract between Mr. Harkless and the Lollys (the Harkless-

Lolly contract) contains a handwritten addendum entitled "Additional Terms." The

addendum states, "The Easement for the said Verizon Cell Tower location is 115 ft x

115 ft in which the seller David L. Harkless shall continue and remain owner of said

easement and Verizon cell tower lease."1 However, the subsequent warranty deed from




              1
                In the Harkless-Lolly contract, the Parcel appears to incorporate an
additional fifteen square feet from its original size because of negotiations Mr. Harkless
had with a third party interested in purchasing his interest in the Parcel.
                                           -2-
Mr. Harkless to the Lollys (April 2011 Deed) did not contain a similar provision

specifically memorializing Mr. Harkless's right to receive rent.

              Three months later, after deciding that market conditions for blueberries

were unfavorable, the Lollys sold the ten acres to the Laubhans—retirees who owned a

small ranch on adjoining land. The sales contract between the Lollys and the Laubhans

(the Lolly-Laubhan contract) made no express mention of Mr. Harkless's remaining

interest in the Parcel. Unlike paragraph 18 of the Harkless-Lolly contract, paragraph 18

of the Lolly-Laubhan contract provides, "Buyer is aware of Verizon tower lease and has

received a copy of the survey and lease." The warranty deed from the Lollys to the

Laubhans (the July 2011 Deed) contained no language addressing Mr. Harkless's right

to receive rent under the Lease.

              Both the April 2011 Deed and the July 2011 Deed stated that they were

"subject to a (Verizon Wireless) Easement as described in Instrument #200814009062,

DeSoto County, Florida." That instrument, entitled "Amended Memorandum of Lease

Agreement," is essentially an abridged version of the Lease. The Amended

Memorandum is silent as to Mr. Harkless retaining his right to receive rent.

              Shortly before Verizon began construction of the tower in May 2012, Mr.

Harkless gave Communications Capital Group, LLC, the option to purchase his interest

in the Lease for $175,000. Communications Capital thereafter sent the Laubhans a

letter asking them to sign and notarize documents which purported to memorialize Mr.

Harkless's continued right to receive rent under the Lease. The Laubhans responded

that they owned the Parcel free and clear of Mr. Harkless's right to receive rent. As a

result of this claim, Communications Capital did not exercise its option.



                                            -3-
              Mr. Harkless then filed a two-count complaint against the Laubhans. He

sought a declaratory judgment that he had the right to receive rent under the Lease. He

also sought reformation of both the April 2011 Deed and July 2011 Deed to reflect this

right. The Laubhans moved for summary judgment. They argued that the April 2011

Deed and the July 2011 Deed failed to expressly reserve Mr. Harkless's right to receive

rent. Accordingly, the Laubhans maintained that the right to receive rent was

presumptively conveyed from Mr. Harkless to the Lollys and ultimately from the Lollys to

the Laubhans.

              In support of their summary judgment motion, the Laubhans filed a

Statement of Undisputed Facts. This Statement provides that "the language of the [two

real estate sales] contracts was different in paragraph 18" and the Laubhans "were not

aware before this litigation of the contractual agreement between Mr. Harkless and the

Lollys by which the Lollys specifically agreed that Mr. Harkless was to receive the

Verizon lease payments."

              At the summary judgment hearing, the Laubhans contended that the only

relevant documents for the trial court to consider were the April 2011 Deed, the July

2011 Deed, and the Amended Memorandum of Lease Agreement mentioned in both

Deeds. Because none of those documents explicitly reserved Mr. Harkless's right to

receive rent, the Laubhans maintained that Mr. Harkless necessarily conveyed that right

away, along with the rest of his rights to the Parcel. The Laubhans asserted that the

trial court should disregard any other documents which might indicate otherwise as

inadmissible parol evidence. Seemingly, they acknowledge that the Harkless-Lolly

contract reflected an intent that Mr. Harkless retain the right to receive rent under the



                                            -4-
Lease. The Laubhans conceded that their theory of the case would result in an

"unintended consequence" for Mr. Harkless and the Lollys. Seizing on this concession

in opposing the motion, Mr. Harkless pointed to the deposition testimony of himself and

the Lollys which reflected that every party to the April 2011 Deed understood that Mr.

Harkless retained the right to receive rent. The Laubhans countered that intent was

irrelevant because the intent was never "put in a document" recorded in the public

records.

              Ultimately, the trial court granted the Laubhans' motion for summary

judgment.

                                     II. DISCUSSION

              Mr. Harkless argues that the trial court improperly granted summary

judgment in favor of the Laubhans. More specifically, he asserts that genuine issues of

material fact exist as to whether he reserved his right to receive rent and whether the

Laubhans were bona fide purchasers for value without notice. "If the record reflects the

existence of any genuine issue of material fact . . . summary judgment is improper."

Alderman v. BCI Eng'rs & Scientists, Inc., 68 So. 3d 396, 399 (Fla. 2d DCA 2011)

(quoting Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991)). Whether or not

a party is a bona fide purchaser for value without notice is an issue of material fact

which may prompt the reversal of a summary judgment. See McCoy v. Love, 382 So.

2d 647, 649 (Fla. 1979).

A. Reservation of Mr. Harkless's Right to Receive Rent

              We interpret contracts in accordance with their plain and ordinary meaning

when the contractual language is clear and unambiguous. See Bioscience W., Inc. v.



                                            -5-
Gulfstream Prop. & Cas. Ins. Co., 185 So. 3d 638, 640 (Fla. 2d DCA 2016). Similarly,

"[w]hen the language of a deed is clear and certain in meaning and the grantor's

intention is reflected by the language employed, there is no room for judicial

construction of the language nor interpretation of the words used." Rogers v. United

States, 184 So. 3d 1087, 1095 (Fla. 2015) (quoting Saltzman v. Ahern, 306 So. 2d 537,

539 (Fla. 1st DCA 1975)).

              Neither the April 2011 Deed nor the July 2011 Deed contains language

specifically reserving Mr. Harkless's right to receive rent pursuant to the Lease. Yet, in

their Statement of Undisputed Facts, the Laubhans concede that Mr. Harkless and the

Lollys "specifically agreed that Harkless was to receive the Verizon lease payments."

We likewise agree that the "Additional Terms" section of the Harkless-Lolly contract

reserved Mr. Harkless's right to receive rent. See Gray v. Callahan, 197 So. 396, 398-

99 (Fla. 1940) ("The transferor of [a] reversion may . . . in the transfer expressly reserve

the rent for part [or] all of the term granted by the lease . . . ." (quoting 16 Ruling Case

Law, Landlord and Tenant § 128 (William M. McKinney & Burdett A. Rich eds., 1917)));

1 Herbert Thorndike Tiffany, The Law of Real Property and Other Interests in Land §

53(a) (1920) (explaining that, when a lessor uses language referring to the "transfer of a

lease," they are ordinarily referring to transfer of the right to receive rent, as opposed to

the transfer of some reversionary interest).

B. Extrinsic Evidence, Merger by Deed, and the Intent of the Parties

              Because Mr. Harkless reserved his right to receive rent in the Harkless-

Lolly contract, we must reckon with the Laubhans' arguments concerning ambiguity and

merger by deed. At the hearing on their summary judgment motion, the Laubhans



                                             -6-
asserted that even if Mr. Harkless reserved his right to receive rent in the Harkless-Lolly

contract, that right merged into the April 2011 Deed without specific reservation and was

then conveyed to the Laubhans in the July 2011 Deed. Accordingly, the Laubhans

believe that the Harkless-Lolly contract is inadmissible parol evidence and cannot be

used to construe the otherwise unambiguous language of conveyance in the April 2011

Deed and July 2011 Deed.

              It is axiomatic that preliminary agreements concerning the sale of property

merge into the deed executed pursuant to the sale. Morton v. Attorneys' Title Ins. Fund,

Inc., 32 So. 3d 68, 72 n.3 (Fla. 2d DCA 2009) (quoting Engle Homes, Inc. v. Jones, 870

So. 2d 908, 910 (Fla. 4th DCA 2004)). This axiom encompasses real estate sales

contracts. See Stephan v. Brown, 233 So. 2d 140, 141 (Fla. 2d DCA 1970).

              The doctrine of merger by deed, however, is an extension of the general

principle of integration in written contracts. Whether discussing merger into a deed or

integration of a prior agreement into a subsequent contract, our guiding principle is the

intent of the parties. See Jenkins v. Eckerd Corp., 913 So. 2d 43, 53 (Fla. 1st DCA

2005) ("The concept of integration is based on a presumption that the parties to a

written contract intended that writing 'to be the sole expositor of their agreement.' "

(quoting Everglade Lumber Co. v. Nettleton Lumber Co., 149 So. 736, 738 (Fla. 1933))).

If it is undisputed that none of the parties to a real estate transaction intended for certain

provisions of their real estate sales contract to merge into a subsequent deed, then no

merger takes place as to those provisions. See Milu, Inc. v. Duke, 204 So. 2d 31, 33

(Fla. 3d DCA 1967) ("The rule that acceptance of a deed tendered in performance of a

contract to convey land merges or extinguishes the covenants and stipulations



                                            -7-
contained in the contract does not apply to those provisions of the antecedent contract

which the parties do not intend to be incorporated in the deed . . . .").

              Although the April 2011 Deed does not expressly reserve Mr. Harkless's

right to receive rent, all of the parties to that deed—Mr. Harkless and the Lollys—

patently testified in their depositions that they intended for Mr. Harkless to retain the

right to receive rent under the Lease and that they understood paragraph 18 of the

Harkless-Lolly sales contract to effectuate this retention. Moreover, the Laubhans

stipulated to the same construction of paragraph 18 in their Statement of Undisputed

Facts. Because all parties to the Harkless-Lolly sales contract agree that paragraph 18

was intended to reserve Mr. Harkless's right to receive rent, that right did not merge into

the April 2011 Deed as a matter of law. And because Mr. Harkless and the Lollys do

not dispute that paragraph 18 never merged into the April 2011 Deed, it is irrelevant

whether or not the April 2011 Deed is unambiguous on its face. See Milu, Inc., 204 So.

2d at 33; see also Providence Square Ass'n v. Biancardi, 507 So. 2d 1366, 1371 (Fla.

1987) ("In a reformation action in equity . . . parol evidence is admissible for the purpose

of demonstrating that the true intent of the parties was something other than that

expressed in the written instrument.").

C. The Phrase "Subject to" in the April 2011 and July 2011 Deeds

              We recognize there are some judicial opinions in Florida which could be

read to suggest that, if a deed contains the phrase "subject to," then the deed could be

rendered generally ambiguous. See, e.g., Hastie v. Ekholm, 199 So. 3d 461, 464 (Fla.

4th DCA 2016) (holding that phrase "subject to" created an ambiguity in deeds to

separate lots which were once under common ownership, where some of the deeds



                                            -8-
said they were "subject to an easement," and others said they were "subject to a right of

way for ingress and egress"); Cook v. Tradewinds W. Condo., Inc., 636 So. 2d 591, 593

(Fla. 3d DCA 1994) (holding that the phrase "subject to" created an ambiguity in a deed,

where (1) the right to receive rent under a preexisting lease had been severed from the

deeded land for ten years, and (2) plaintiffs were aware of the preexisting lease and

owned the land for six years before bringing suit).

              The origin of this case law is Procacci v. Zacco, 324 So. 2d 180, 181 (Fla.

4th DCA 1975), wherein a probate estate deeded a parcel of land to an heir and an

adjacent parcel of land to a petroleum company. The deed to the petroleum company

stated that the company's land was "subject to" a right-of-way easement. Id. at 182.

When the petroleum company began constructing buildings which interfered with the

easement, the heir filed for an injunction. Id. The trial court held that the phrase

"subject to" was insufficient to reserve any easement whatsoever and the Fourth District

agreed. Id. In explaining its affirmance, the Fourth District opined that the phrase

"subject to" was so ambiguous that, as a standalone legal incantation, it was insufficient

to create any easement. Id. at 181-82. But the Fourth District also noted that the estate

later quitclaimed all of its interest to the petroleum company and that the heir's deed did

not contain any mention of an easement. Id. at 182.

              The case before us is distinguishable from Procacci, and from cases

which rely on Procacci, such as Hastie and Cook. First, the right to receive rent is

distinct from an easement. Compare Penthouse N. Ass'n v. Lombardi, 461 So. 2d

1350, 1352 (Fla. 1984) (describing rent as a contingent obligation to pay by a lessee

"which becomes an enforceable debt only as the rent is earned through the lessee's use



                                            -9-
of the property" (citing De Vore v. Lee, 30 So. 2d 924, 926 (Fla. 1947))), with Sears,

Roebuck & Co. v. Franchise Fin. Corp. of Am., 711 So. 2d 1189, 1191 (Fla. 2d DCA

1998) ("An easement is an incorporeal, nonpossessory interest in land which concerns

the use of the land of another."). Unlike Procacci or Hastie, the case before us does not

concern two plots of land which were once under common ownership and now contain

different language concerning easements in their respective deeds. Thus, even if the

"subject to" language in the April 2011 and July 2011 Deeds contains some ambiguity

as to Verizon's easement, it is inconsequential here because the right at issue is not an

easement.

             Second, the rule expressed in Procacci derives from the broader notion

that the phrase "subject to," when paired with language describing an interest in real

property, can only denote a preexisting interest, not create a new one. See Star Island

Assocs. v. City of St. Petersburg Beach, 433 So. 2d 998, 1004 (Fla. 2d DCA 1983)

(applying the rule in Procacci, where the deeds at issue were "subject to" an easement

but did "not refer to any prior instrument purporting to create such an easement, nor do

the deeds identify the location of the easement"); see also Wild River Adventures, Inc.

v. Bd. of Trustees of Sch. Dist. No. 8, 812 P.2d 344, 347 (Mont. 1991) (explaining the

words "subject to" do not create an easement, and that the purpose of such language is

to exclude preexisting easements from warranties of title). But if the phrase "subject to"

refers to another instrument which does create a property interest, then there is no

ambiguity. Star Island Assocs., 433 So. 2d at 1002 ("The deeds do not refer to any

prior instrument purporting to create such an easement, nor do the deeds identify the

location of the easement.").



                                          - 10 -
              Here, the Amended Memorandum of Lease Agreement contains no

ambiguities concerning Verizon's easement and no indications that Mr. Harkless

intended to reserve his right to receive rent. On the contrary, paragraph 5 of the

Amended Memorandum indicates that the Lease's terms "shall extend to and be binding

upon the respective executors, administrators, heirs, successors and assigns of the

Lessor and Lessee." In other words, the Lease restates the default rule that the right to

receive rent, like other real property rights, is presumptively transferred in a deed unless

it is specifically reserved. See Gray, 197 So. at 399. Therefore, the "subject to" rule in

Procacci cannot apply to the case before us.

              To the extent that the Third District's holding in Cook may stand for a

different proposition, we disagree. 636 So. 2d at 592. The deed in Cook stated that it

was "subject to" a recorded ninety-nine-year lease, so there was no ambiguity as to

whether the words "subject to" created a new right or reserved a preexisting right. The

plaintiffs in Cook acquired rights to the deeded property eleven years after the execution

of the lease, after it had already changed ownership many times. Id. at 592. The Cook

court failed to analyze whether there was any ambiguity in the recorded deed. But in

any event, the plaintiffs in Cook were aware of the existence of the lease and had been

in possession of the subject property for six years before they ever sued for rent. Id. at

593. Moreover, none of the parties who owned the deeded land before the Cook

plaintiffs ever challenged the original lessees' reservation of rent. Id. Based on those

facts, the Cook plaintiffs were likely aware of some preexisting, nonintegrated

agreement to reserve rent to the original lessees. Therefore, the holding of the Cook

court was correct, but the reasoning was flawed.



                                           - 11 -
              Third, it would be imprudent to extend the holding of Procacci to cases

where a deed states that it is subject to a specific recorded instrument and that

instrument does not add any ambiguity to the face of the deed. The terms that Mr.

Harkless and the Lollys agreed to in paragraph 18 of the Harkless-Lolly contract are not

evident on the face of the April 2011 Deed, the July 2011 Deed, or the Amended

Memorandum of Lease Agreement. If we extended the holding of Procacci to mean

that the words "subject to" in the April 2011 and July 2011 Deeds render paragraph 18

of the Harkless-Lolly contract admissible as parol evidence, it follows that any deed

containing the words "subject to" could be challenged as facially ambiguous, and may

be supplemented by documents which are totally unrelated to whatever the deeds are

"subject to." Such a result would not square with supreme court precedent. See Gray,

197 So. at 399 (holding that a deed which "contained no reservation of rents accruing

thereafter . . . amounted to relinquishment" of the original lessor's rights to receive rent).

              Therefore, we decline to adopt this line of argument. However, as we

already explained above, we need not reach the issue of ambiguity to reverse the trial

court's summary judgment because the April 2011 Deed was not fully integrated with

respect to Mr. Harkless's right to receive rent.

D. Application of Florida's Recording Statute to the Right to Receive Rent

              Having elucidated our limited ground for reversal, we must now analyze

the impact that the subsequent Lolly-Laubhan transaction had on Mr. Harkless's right to

receive rent. Clearly, paragraph 18 of the Lolly-Laubhan contract does not contain the

same language as paragraph 18 of the Harkless-Lolly contract. It is also clear that the

July 2011 Deed, like the April 2011 Deed, is silent as to Mr. Harkless's reservation of his



                                            - 12 -
right to receive rent. Consequently, the Laubhans contend that they had no way of

knowing the terms of the Harkless-Lolly contract and thus no way of knowing that the

Lollys were not giving them the full bundle of rights associated with ownership of the

Parcel. The Laubhans' concerns are legitimate, but they do not warrant summary

judgment. Rather, the trial court should have assessed whether genuine issues of

material fact exist as to the Laubhans' status as bona fide purchasers for value and

without notice. See McCoy, 382 So. 2d at 649.

              The basis for the bona-fide-purchaser rule has been prescribed by the

Florida Legislature. Neither party identifies, nor have we found, any case law holding

that the right to receive rent is subject to Florida's recording statute. However, the plain

language of Florida's recording statute states that "[n]o conveyance . . . of real property,

or of any interest therein . . . shall be good and effectual in law or equity against . . .

subsequent purchasers for valuable consideration and without notice, unless the same

be recorded according to law." § 695.01(1), Fla. Stat. (2011) (emphasis added). The

right to receive rent is an incorporeal hereditament—an intangible interest in real

property. See Fla. Power Corp. v. McNeely, 125 So. 2d 311, 315 (Fla. 2d DCA 1960)

(quoting Restatement (First) of Property § 9 cmt. b (Am. Law Inst. 1936)); 52A C.J.S.

Landlord & Tenant § 1078, Westlaw (database updated September 2016) (citing

McBryde v. Lowe, 163 So. 2d 896, 899 (Fla. 2d DCA 1964) (Shannon, J., dissenting)).

Accordingly, the right to receive rent is covered by section 695.01(1).2



              2
              Courts in other states have similarly found that the right to receive rent is
contemplated by their recording statutes. See, e.g., Valley Nat'l Bank of Ariz. v. Avco
Dev. Co., 480 P.2d 671, 672-75 (Ariz. Ct. App. 1971); Winnisimmet Tr. v. Libby, 122
N.E. 575, 576 (Mass. 1919); John McMenamy Inv. & Real Estate Co. v. Dawley, 165
S.W. 829, 830 (Mo. Ct. App. 1914); First & Citizens Nat'l Bank of Elizabeth City v.
                                             - 13 -
              The record reflects that genuine issues of material fact remain as to

whether the Laubhans purchased the Parcel as bona fide purchasers for value without

notice under Florida's recording statute. The Lollys both testified that they told their

realtor, Margaret Williamson, to inform the Laubhans that their property was subject to

Mr. Harkless's right to receive rent. Ms. Williamson, who was the realtor for both of the

transactions involved in this case, testified that she informed the Laubhans that Mr.

Harkless was "keeping the lease agreement." The Laubhans testified that the

conversation they had with Ms. Williamson was more ambiguous. Mr. Laubhan testified

that he asked Ms. Williamson how Mr. Harkless could reserve his right to receive rent

and the response he received from Ms. Williamson was, "I don't know, I don't do

leases." During her deposition, Ms. Williamson indicated that she did not know where

or how Mr. Harkless reserved his right to receive rent—only that he had done so and

that she was instructed to relay that message to the Laubhans. The Laubhans also

indicated that they initially believed the cellular communications tower would never be

built due to the expiration of a special zoning exception afforded by the DeSoto County

Board of County Commissioners (BOCC) to Mr. Harkless. In the same vein, Mr.

Harkless testified that the Laubhans had no problem with the state of affairs until

construction on the tower actually began. During the hearing on the Laubhans' motion

for summary judgment, Mr. Harkless indicated that Mrs. Laubhan attended meetings of

the BOCC and was well-informed about Mr. Harkless's dealings with Verizon.




Sawyer, 10 S.E.2d 656, 657 (N.C. 1940); Schmid v. Baum's Home of Flowers, Inc., 37
S.W.2d 105, 109 (Tenn. 1931).
                                           - 14 -
              Such matters present unresolved factual issues that the finder of fact must

resolve. Accordingly, summary judgment was not the appropriate vehicle by which to

dispose of this case in the trial court.

                                     III. CONCLUSION

              We reverse the trial court's grant of summary judgment to the Laubhans

and remand for proceedings consistent with this opinion. Mr. Harkless reserved his

right to receive rent in the Harkless-Lolly contract, which did not merge into any

subsequent deed. Genuine issues of material fact remain as to whether the Laubhans

were bona fide purchasers for value and without notice. Our reversal also extends to

any relief the trial court afforded to the Laubhans on their counterclaim. We express no

opinion on the merits of reformation as to one or both of the Deeds in this case.

              Reversed; remanded for further proceedings.



LaROSE, J., Concurs.
BLACK, J., Concurs in result only with opinion.




                                           - 15 -
BLACK, Judge, concurring with opinion.

              In my opinion, the majority makes findings of fact and reaches conclusions

of law that exceed the scope of our review of a final summary judgment inappropriately

granted. I would reverse and remand for further proceedings, concluding only that the

intent of the parties was an issue of material fact in dispute which precluded summary

judgment. See Fiore v. Hilliker, 170 So. 3d 147, 151 (Fla. 2d DCA 2015) (reversing

summary judgment where the intent of the parties was a disputed material fact which

was to be considered by the trier of fact below); Hervey v. Alfonso, 650 So. 2d 644, 646

(Fla. 2d DCA 1995) ("[A] motion for summary judgment is not a substitute for a trial on

the merits. Hence, a trial court is precluded from resolving disputed issues of fact when

considering such a motion. Thus, when a defendant moves for summary judgment,

neither the trial court nor this court determines whether the plaintiff can prove the cause

of action alleged. The function of the court is solely to determine whether the

appropriate record presented in support of summary judgment conclusively shows that

the plaintiff cannot prove the claim alleged as a matter of law." (citation omitted)).

              The trial court granted summary judgment in favor of the Laubhans but

made no express findings of fact or conclusions of law. Upon review of the hearing

transcript and the arguments made, and in the absence of findings by the trial court, it

appears that the only basis upon which the trial court could grant summary judgment in

favor of the Laubhans was the determination that the deeds and Lease Agreement, the

subjects of Mr. Harkless's complaint, unambiguously did not reserve Mr. Harkless's right

to rent under the Lease—the argument raised by the Laubhans at the hearing. In

opposition to the Laubhans' motion and arguments, Mr. Harkless contended that the



                                            - 16 -
"subject to" language in the deeds rendered them ambiguous and that in order to

resolve that ambiguity, the trial court was required to consider the language of the

Harkless-Lolly contract and the intent of the parties—extrinsic evidence.

              "[A] trial court may not weigh the evidence or judge the credibility of

witnesses in arriving at summary judgment; instead, the moving party must conclusively

show the absence of any genuine issues of material fact." Plantation Key Office Park,

LLLP v. Pass Intern., Inc., 110 So. 3d 505, 508 (Fla. 4th DCA 2013) (citing Craven v.

TRG–Boynton Beach, Ltd., 925 So. 2d 476, 480-81 (Fla. 4th DCA 2006)). "A summary

judgment motion will be defeated if the evidence by affidavit or otherwise demonstrates

the existence of a material factual issue." Harvey Bldg., Inc. v. Haley, 175 So. 2d 780,

782 (Fla. 1965).

              Florida law holds that "[t]he words 'subject to' in a deed or contract

generally create an ambiguous deed or contract." Hastie v. Ekholm, 199 So. 3d 461,

464 (Fla. 4th DCA 2016) (citing Procacci v. Zacco, 324 So. 2d 180, 182 (Fla. 4th DCA

1975)); see also Cook v. Tradewinds W. Condo., Inc., 636 So. 2d 591, 592 (Fla. 3d

DCA 1994). As applied in this case, if the trial court were inclined to accept the

Laubhans' argument that no material issues of fact were in dispute based on the

language of the deed, Mr. Harkless sufficiently "demonstrate[d] the existence of such an

issue either by countervailing facts or justifiable inferences from the facts presented"

through the deposition testimony and evidence on record. See Harvey Bldg., 175 So.

2d at 783. As a result, summary judgment was inappropriate. See Mac-Gray Servs.,

Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So. 2d 657, 659-60 (Fla. 2d DCA 2005)

("[W]hen an agreement contains a latent ambiguity . . . the issue of the correct



                                           - 17 -
interpretation of the agreement is an issue of fact which precludes summary judgment."

(quoting Griffin v. Fed. Deposit Ins. Corp., 532 So. 2d 1358, 1360 (Fla. 2d DCA 1988)).

              Because on the record before us there is no way to conclusively

determine on what basis the trial court granted summary judgment, I would apply the

general rule that where a contract or writing is ambiguous, "the parties' intent becomes

a question of fact for the fact-finder, precluding summary judgment," rather than the

exception that "a contract may be interpreted as a matter of law when the ambiguity can

be resolved by undisputed parol evidence of the parties' intent." Life Care Ponte Vedra,

Inc. v. H.K. Wu, 162 So. 3d 188, 191–92 (Fla. 5th DCA 2015); see also Centennial

Mortg., Inc. v. SG/SC, Ltd., 772 So. 2d 564, 566 (Fla. 1st DCA 2000) ("Contract

interpretation is for the court as a matter of law, rather than the trier of fact, only when

the agreement is totally unambiguous, or when any ambiguity may be resolved by

applying the rules of construction to situations in which the parol evidence of the parties'

intentions is undisputed or non-existent." (quoting Land O'Sun Realty Ltd. v. REWJB

Gas Inv., 685 So. 2d 870, 872 n.3 (Fla. 3d DCA 1996), review dismissed sub nom.

Lennar Fla. Partners, I v. REWJB Gas Inv., 710 So. 2d 978 (Fla. 1998))).




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