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HomeMy WebLinkAboutSubmittal-Eddy Leal-Initial Brief of AppellantFiling # 168439019 E-Filed 03/09/2023 10:57:29 PM RECEIVED, 03/09/2023 10:58:21 PM, Clerk, Third District Court of Appeal Submitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk IN THE THIRD DISTRICT COURT OF APPEAL STATE OF FLORIDA CASE NO. 3D22-1897 CITY OF MIAMI, Appellant, -vs- 1000 BRICKELL, LTD., Appellee. AN APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MIAMI-DADE COUNTY INITIAL BRIEF OF APPELLANT VICTORIA MENDEZ, City Attorney ERIC J. EVES, Assistant City Attorney Attorneys for Appellant 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130-1910 Phone: (305) 416-1800 Primary Email: eeves@miamigov.com Secondary Email: csantos@miamigov.com 14278-Submittal-Eddy Leal -Initial Brief of Appellant Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF CITATIONS iii STATEMENT OF THE CASE AND FACTS 1 STANDARD OF REVIEW 9 SUMMARY OF THE ARGUMENT 10 ARGUMENT 12 I. THE TRIAL COURT ERRED IN DENYING THE CITY'S MOTION FOR FINAL SUMMARY JUDGMENT BECAUSE THE FIVE-YEAR STATUTE OF LIMITATIONS BARS 1000 BRICKELL'S CAUSES OF ACTION 12 A. 1000 Brickell filed the original complaint more than five years after its causes of action accrued 13 B. The continuing breach doctrine does not apply 15 C. Even if 1000 Brickell filed the original complaint within the statute of limitations, it filed the operative complaint, which does not relate back to the original complaint, outside the statute of limitations 22 II. THE TRIAL COURT ERRED IN GRANTING 1000 BRICKELL'S MOTION FOR FINAL SUMMARY JUDGMENT BECAUSE GENIUNE DISPUTES AS TO MATERIAL FACTS EXIST OR 1000 BRICKELL IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW 28 A. 1000 Brickell is not entitled to summary judgment on the issue of forfeiture 30 1 Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk B. If the City is not entitled to summary judgment on the issue of the statute of limitations, 1000 Brickell is not entitled to summary judgment on the issue 33 C. 1000 Brickell is not entitled to summary judgment on the issue of waiver 35 CONCLUSION 38 CERTIFICATE OF SERVICE 39 CERTIFICATE OF COMPLIANCE 40 11 ..bmitted into the public record for items) PA.1 , on 09/28/2023 . City Clerk TABLE OF CITATIONS Cases 1000 Brickell, Ltd. v. City of Miami, 339 So. 3d 1091 (Fla. 3d DCA 2022) 7, 8 Antioch Univ. v. State, Dep't of Nat., 647 So. 2d 915 (Fla. 4th DCA 1994) 31 Aristide v. Jackson Mem'l Hosp., 917 So. 2d 253 (Fla. 3d- DCA -2005)--- 16 Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061 (Fla. 2001) 13 Brevard Cnty. v. Waters Mark Dev. Enterprises, LC, 350 So. 3d 395 (Fla. 5th DCA 2022) 9, 28 Castro v. Linfante, 307 So. 3d 110 (Fla. 3d DCA 2020) 23 City of Quincy v. Womack, 60 So. 3d 1076 (Fla. 1st DCA 2011) 19 City of Riviera Beach v. Reed, 987 So. 2d 168 (Fla. 4th DCA 2008) 12, 14 Dade Cty. v. City of N. Miami Beach, 69 So. 2d 780 (Fla. 1953) 30, 33 Delgado v. Agency for Health Care Admin., 237 So. 3d 432 (Fla. 1st DCA 2018) 13 Delivorias v. Delivorias, 80 So. 3d 352 (Fla. 1st DCA 2011) 6 Fed. Ins. Co. v. Sw. Florida Ret. Ctr., Inc., 707 So. 2d 1119 (Fla. 1998) 12, 27, 34 iii Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk Floyd v. State (In re Forfeiture of: £1992 Pontiac Firebird No. 1G2FS23T3NL212004), 47 So. 3d 344 (Fla. 2d DCA 2010) 26 Grove Isle Ass'n, Inc. v. Grove Isle Associates, LLLP, 137 So. 3d 1081 (Fla. 3d DCA 2014) 19, 20 Hanna v. Sunrise Recreation, Inc., 94 So. 2d 597 (Fla. 1957) 32 Hunt v. State, 613 So. 2d 893 (Fla: 1992).......... ..... .. .............. 6 Jacksonville Transp. Auth. v. Cont'l Equities, Inc., 636 So. 2d 1354 (Fla. 1st DCA 1994) 16, 17, 21 Kopel v. Kopel, 229 So. 3d 812 (Fla. 2017) 23, 24, 25 Med. Jet, S.A. v. Signature Flight Support -Palm Beach, Inc., 941 So. 2d 576 (Fla. 4th DCA 2006) 13, 27, 34 Palm Beach Cnty. Sch. Bd. v. Doe, 210 So. 3d 41 (Fla. 2017) 23 Pearson v. Ford Motor r Co., 694 So. 2d 61 (Fla. 1st DCA 1997) 35 Perez-Gurri Corp. v. McLeod, 238 So. 3d 347 (Fla. 3d DCA 2017) 29 Pol v. Pol, 705 So. 2d 51 (Fla. 3d DCA 1997) 18, 20 Popular Bank of Florida v. R.C. Asesores Financieros, C.A., 797 So. 2d 614 (Fla. 3d DCA 2001) 35 Roschman Partners v. S.K. Partners I, Ltd., 627 So. 2d 2 (Fla. 4th DCA 1993) 36 iv .ubmitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk Russell v. Williams, 964 P.2d 231 (Okla. Civ. App. 1998) 19 Sch. Bd. of Broward Cty. v. Surette, 394 So. 2d 147 (Fla. 4th DCA 1981) 23 Shands v. City of Marathon, 261 So. 3d 750 (Fla. 3d DCA 2019) 29 Simmons v. Pub. Health Tr. of Miami -Dade Cnty., 338 So. 3d 1057 (Fla. 3d DCA 2022) 9 Spitzer v. Bartlett Bros. Roofing, 437 So. 2d 758 (Fla. 1st DCA 1983) 13 State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818 (Fla. 1996) Passim Tiffany Realty, Inc. v. Alvin, 311 So. 2d 832 (Fla. 3d DCA 1975) 30, 33 Torres v. K-Site 500 Assocs., 632 So. 2d 110 (Fla. 3d DCA 1994) 30, 33, 35, 37 Universal Med. Inv. Corp. v. Mike Rollison Fence, LLC, 331 So. 3d 242 (Fla. 1st DCA 2021) 18, 20 Viera v. City of Lake Worth, Florida, 230 So. 3d 484 (Fla. 4th DCA 2017) 16, 19 Walgreen Co. v. Habitat Dev. Corp., 655 So. 2d 164 (Fla. 3d DCA 1995) 18, 20 White v. Metro. Dade Cty., 563 So. 2d 117 (Fla. 3d DCA 1990) 30, 31, 33 Winn -Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008 (11th Cir. 2014) 15, 18, 19, 20 submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk XP Glob., Inc. v. AVM, L.P., 16-CV-80905, 2016 WL 4987618, at *3- 4 (S.D. Fla. Sept. 19, 2016) 19 Statutes § 95.031, Fla. Stat 12, 14 § 95.11, Fla. Stat 4, 5, 12 § 95.36, Fla. Stat 4, 5, 6, 7, 13 Rules Fla. R. Civ. P. 1.110 38 Fla. R. Civ. P. 1.190 23 Fla. R. Civ. P. 1.510 9 Fla. R. App. P. 9.045 40 Fla. R. App. P. 9.210 40 vi Submitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk STATEMENT OF THE CASE AND FACTS In 1974, a grantor conveyed property to the City of Miami through a warranty deed. (R. 2383-84). The property includes two parcels of land: a north parcel and a south parcel. Id. The warranty deed included a reverter provision governing both parcels: TO HAVE AND TO HOLD, the same in fee simple forever; provided however, -that--if any part of the property herein conveyed shall ever be used for any purpose other than public park purposes, the estate hereby granted to the grantee shall automatically and immediately terminate, and all right, title and interest in and to such property shall thereupon revert to the grantor. Id. After the property was donated to the City, it was used as a public park. (R. 1794). In 1999, the managing partner of the grantor's successor in interest, 1000 Brickell, Ltd. (hereinafter, "1000 Brickell"), wrote a letter to the City. (R. 744-45). He urged the City to allow a commercial use of the north parcel of the property for La Cucina Management, Inc., d/b/a Perricone's Marketplace (hereinafter, "the restaurant"). Id. The same year, the City and 1000 Brickell entered into a consent agreement. (R. 2386-87). The consent agreement permitted the City to enter into a revocable license agreement with the 1 'Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk restaurant. Id. It also permitted the restaurant to use a portion of the north parcel of the property (1,144 square feet) "for the installation of new ground level seating, and providing food and beverage service to its patrons as well as for the benefit of the general public." Id. In 2000, the restaurant installed a structure that exceeded the 1,144 square feet provided for in the consent agreement. (R. 2483, 2821-22, 2829, 2851). In 2007, the restaurant expanded its structure again. (R. 2492-95). By 2009, Perricone's Marketplace finished construction on a new structure. (R. 2532). By 2012, the restaurant's footprint exceeded 3,000 square feet. (R. 2500). From 1999 to 2013, while the restaurant expanded its operations, 1000 Brickell's managing partner regularly visited the restaurant. (R. 893-94). He expressly approved of the expanded operations. (R. 894). After a falling out with the restaurant's owner, which led to litigation between 1000 Brickell and the restaurant, 1000 Brickell's managing partner stopped visiting the restaurant. (R. 893-94). In 2014, 1000 Brickell and another plaintiff, who is not a party to these appellate proceedings, filed the original complaint against the City. (R. 31) . 1000 Brickell alleged a violation of the warranty deed 2 Submitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk on the south parcel of the property only. (R. 31-40) . It sought to enjoin the City from conveying the south parcel to a private entity (Brickell Flatiron, LLC) . (R. 36) . The original complaint had nothing to do with the north parcel of the property, the consent agreement, or the restaurant on the north parcel of the property (or any other restaurant) . (R. 31-40) . In 2018, 1000 Brickell filed the amended complaint. (R. 116). It alleged, for the first time in any pleading, a violation of the consent agreement on the north parcel of the property. (R. 116-26). The allegations in the amended complaint concerned the restaurant allegedly exceeding the scope of use permitted by the consent agreement. Id. In early 2019, the restaurant ceased operations in the park. (R. 769). It revoked the license agreement with the City. (R. 769, 1172- 73). Later in 2019, 1000 Brickell moved for leave to file the second amended complaint (the operative complaint) . (R. 411-16) . It alleged, like it did in the first amended complaint, a violation of the consent agreement on the north parcel of the property only. (R. 1794-1807). 3 J'ubmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk The allegations concerned the restaurant allegedly exceeding the scope of use permitted by the consent agreement. Id. The operative complaint alleged four counts: (1) quiet title; (2) declaratory judgment; (3) breach of the warranty deed; and (4) breach of the consent agreement. (R. 1802-07). The latter two counts sought damages based on the City collecting rent from the restaurant. (R. 1805-07). Eventually, the trial court granted 1000 Brickell's motion for leave to amend. (R. 1793). The City filed an answer and affirmative defenses to the operative complaint. (R. 1852-59). Among other affirmative defenses, the City raised section 95.36(1), Florida Statutes, the five-year statute of limitations in section 95.11(2) (b), Florida Statutes, and waiver. (R. 1857-58). The parties filed competing motions for summary judgment under the then -governing summary judgment standard (the old standard). (R. 272-372, 1865-85). 1000 Brickell's motion sought summary judgment on the counts for quiet title and declaratory judgment. (R. 272-96). It never moved for summary judgment on the counts for damages, whether in whole or in part. 4 „ibmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk The City's motion sought final summary judgment on all counts based on section 95.36(1) or the five-year statute of limitations in section 95.11(2)(b). (R. 1865-75). As to the damages counts specifically, the City moved for summary judgment on an alternative ground: sovereign immunity. (R. 1874-78). Both parties filed a response in opposition to the other party's motion. (R. 718-1219, 1886-1992). And both parties filed a reply in support of their respective motions. (R. 1250-1463, 1999-2012). In the "statement of undisputed facts” section of 1000 Brickell's motion for summary judgment, 1000 Brickell claimed it did not become aware of the restaurant's expanded operations until less than two years before it filed suit. (R. 279). The City, however, presented evidence showing 1000 Brickell knew, for seven years or more before it filed suit, of the restaurant's expanded operations. (R. 893-94). The trial court held hearings on both motions for summary judgment separately, beginning with 1000 Brickell's motion. (R. 2084-2130). After the hearing on the City's motion, (R. 2142-75), the court entered an order on the competing motions, in which it granted the City's motion for summary judgment on the damages counts (III and IV) based on sovereign immunity. (R. 2030, 2034). But the court 5 Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk otherwise denied the City's motion and granted 1000 Brickell's motion for summary judgment. (R. 2029-36). The court then entered final judgment for 1000 Brickell. (R. 2037-39). However, the City successfully moved for rehearing: the court granted rehearing, vacated the final judgment for 1000 Brickell, and entered final summary judgment for the City. (R. 2041-49, 2177, 2180-81). The court based its final judgment for the City on section 95.36(1) only. (R. 2180). In Case No 3D20-1046, 1000 Brickell appealed the final judgment for the City. In the Initial Brief, it argued section 95.36(1) did not apply. (R. 2303-49). 1000 Brickell also specifically requested final judgment in its favor. (R. 2349).1 In the Answer Brief, the City argued in favor of the application of section 95.36(1). The City also offered alternative reasons to affirm, including the statute of limitations. In addition, the City argued against 1000 Brickell obtaining final judgment on remand. 1 To the extent it is necessary to do so, the Court can take judicial notice of the briefs filed in Case No. 3D20-1046. See Hunt v. State, 613 So. 2d 893, 898 n.5 (Fla. 1992) (taking judicial notice of the record in another court); Delivorias v. Delivorias, 80 So. 3d 352, 354 (Fla. 1st DCA 2011) (same). 6 submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk In the Reply Brief, 1000 Brickell again contended against the application of section 95.36(1). It also disputed the application of the statute of limitations. However, 1000 Brickell never disputed the application of sovereign immunity over Counts III and IV (the damages counts) . In conclusion, 1000 Brickell sought final judgment in its favor or further proceedings. This Court ultimately reversed the final judgment for the City on Counts I and II, while affirming summary judgment for the City on Counts III and IV. See 1000 Brickell, Ltd. v. City of Miami, 339 So. 3d 1091 (Fla. 3d DCA 2022). This Court held that section 95.36(1) did not apply. It did not discuss other issues, such as the statute of limitations and waiver. In conclusion, this Court remanded for further proceedings. Id. at 1096-97. On remand, 1000 Brickell moved to vacate the final judgment entered in the City's favor and reinstate the final judgment in its favor. (R. 2250-52). The City opposed the motion to reinstate and filed a renewed motion for final summary judgment under the new summary judgment standard. (R. 2297-2300, 2371-80). The motion asserted the five-year statute of limitation barred the remaining counts. (R. 2371-80). 7 Submitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk First, the trial court held a hearing on 1000 Brickell's motion to vacate and reinstate. (S.R. 142-53). After listening to arguments of counsel, the court agreed to vacate the final judgment for the City as to Counts I and II only (consistent with this Court's opinion), but denied the motion to reinstate the final judgment for 1000 Brickell. (S.R. 151-52). The court agreed to hear the City's renewed motion for summary judgment. Id. It entered a written order reflecting the same. (R. 2934).2 Following a hearing on the City's renewed motion for final summary judgment, (S.R. 163-87), the trial court denied the motion. (R. 3215-19). In doing so, the court reasoned the statute of limitations did not bar the causes of action because the continuing breach doctrine applied, and the operative complaint related back to the original complaint. (R. 3218-19). The court then entered final judgment for 1000 Brickell. (R. 3211-13). The City timely appealed. 2 Before the City filed its renewed motion for final summary judgment, the trial court stated it would not consider such a motion. (S.R. 130-35). This led the City to file a petition for writ of mandamus in Case No. 3D22-1347, which this Court denied. However, after the City filed its motion, the trial court agreed to hear the motion. Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk STANDARD OF REVIEW This appeal requires the Court to review, under the new summary judgment standard, the denial of summary judgment for one party and the granting of summary judgment for the other. Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(a) (2022). "In determining whether a genuine dispute of material fact exists, the court must view the evidence and draw all factual inferences therefrom in a light most favorable to the non-moving party and must resolve any reasonable doubts in that party's favor." Brevard Cnty. v. Waters Mark Dev. Enterprises, LC, 350 So. 3d 395, 398 (Fla. 5th DCA 2022) (applying the new summary judgment standard). Ultimately, a trial court's ruling on a motion for summary judgment is reviewed de novo. Simmons v. Pub. Health Tr. of Miami -Dade Cnty., 338 So. 3d 1057, 1060 (Fla. 3d DCA 2022); Brevard Cnty., 350 So. 3d at 399. This means "the appellate court uses the trial court's record but reviews the evidence and law without deference to the trial court's rulings." Appeal, Black's Law Dictionary (11 th ed. 2019) . Submitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk SUMMARY OF THE ARGUMENT The trial court erred in entering final summary judgment for 1000 Brickell. The parties filed competing motions for summary judgment. Both motions raised the question of whether, under the consent agreement, the restaurant's expanded operations in the park entitled 1000 Brickell to possession of the entire property. The City maintains it is entitled to summary judgment based on the statute of limitations or, at the very least, genuine disputes of material fact preclude summary judgment for 1000 Brickell. For purposes of analyzing the City's motion for summary judgment, the outcome turns on whether the five-year statute of limitations began to run once the causes of action could be brought or whether 1000 Brickell could file suit whenever it wanted, for as long as the restaurant operated in the park. The former is true. The statute of limitations begins to run once the cause of action may be brought. Plaintiffs cannot sit on their hands and file suit more than five years later. Otherwise, courts are treating the statute of limitations as merely a suggestion from the Legislature and not a command from it. This is entirely improper. As a result, final summary judgment in the City's favor is required. 10 ubmitted into the public record for item S) PA.1 , on 09/28/2023 . City Clerk At the very least, 1000 Brickell is not entitled to final summary judgment. For purposes of analyzing 1000 Brickell's motion for summary judgment, the case reflects two competing narratives. On the one hand, 1000 Brickell framed the case as one where, until shortly before it filed suit, it had no clue of the restaurant's expanded operations. On the other hand, the City presented evidence showing 1000 Brickell knew, for nearly seven years or more before it filed suit, of the restaurant's expanded operations. These competing versions of events precluded final summary judgment for 1000 Brickell. Indeed, the record demonstrated genuine disputes as to material facts, or no entitlement to judgment as a matter of law, on the issues of forfeiture, the statute of limitations, and waiver. Thus, if the City is not entitled to final summary judgment, neither is 1000 Brickell. 11 'Submitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk ARGUMENT I. THE TRIAL COURT ERRED IN DENYING THE CITY'S MOTION FOR FINAL SUMMARY JUDGMENT BECAUSE THE FIVE-YEAR STATUTE OF LIMITATIONS BARS 1000 BRICKELL'S CAUSES OF ACTION. The first issue presented is whether the trial court erred in denying the City's renewed motion for final summary judgment on the statute of limitations. The parties agreed the applicable statute of limitations is five years. See § 95.11(2)(b), Fla. Stat. (providing for a five-year statute of limitations for "[a] legal or equitable action on a contract, obligation, or liability founded on a written instrument"). With the applicable statute of limitations established, the question then becomes: When did the causes of action accrue? "A cause of action accrues when the last element constituting the cause of action occurs." § 95.031(1), Fla. Stat. "Put another way, the limitations period begins to run when the action 'may be brought."' City of Riviera Beach v. Reed, 987 So. 2d 168, 170 (Fla. 4th DCA 2008) (quoting State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla. 1996)). In the context of cases subject to section 95.11(2) (b), the cause of action accrues on the date of the breach, not the date the breach is discovered. See Fed. Ins. Co. v. Sw. Florida 12 Submitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk Ret. Ctr., Inc., 707 So. 2d 1119, 1122 (Fla. 1998); Lee, 678 So. 2d at 820; Med. Jet, S.A. v. Signature Flight Support -Palm Beach, Inc., 941 So. 2d 576, 578 (Fla. 4th DCA 2006). As explained below, 1000 Brickell's causes of action accrued more than five years before it filed the original complaint or more than five years before it filed the operative complaint which did not relate back to the original. A. 1000 Brickell filed the original complaint more than - five years after its causes of action accrued: 1000 Brickell filed its original complaint in 2014. (R. 31) . In the prior appeal on the issue of section 95.36, Florida Statutes (1974), it argued to this Court that "the City's fee simple determinable estate in the Park Property was automatically terminated, and title thereto reverted to [1000 Brickell]," in "early 2000." (R. 2829, 2851). 1000 Brickell should not be permitted to backtrack from this stipulation. See Delgado v. Agency for Health Care Admin., 237 So. 3d 432, 437 (Fla. 1st DCA 2018) ("It is the policy of the law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes." (quoting Spitzer v. Bartlett Bros. Roofing, 437 So. 2d 758, 760 (Fla. 1st DCA 1983))); see also Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061, 1066 (Fla. 2001) ("A claim made or 13 Jubmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk position taken in a former action or judicial proceeding will, in general, estop the party to make an inconsistent claim or to take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party."). Under 1000 Brickell's theory of the case, it could have filed suit against the City and sought reversion approximately fourteen years before it filed suit. 1000 Brickell's arguments essentially concede the point that the lawsuit was filed more than five years after the causes of action accrued. See § 95.031(1), Fla. Stat. ("A cause of action accrues when the last element constituting the cause of action occurs."); see also Reed, 987 So. 2d at 170 ("[T]he limitations period begins to run when the action 'may be brought."' (quoting Lee, 678 So. 2d at 821)). On this simple basis alone, the trial court erred in denying the City's motion for final summary judgment. Even if 1000 Brickell's stipulation is not reason enough to reverse, other facts establish why its causes of action accrued more than five years before it filed suit. In 2007, the restaurant made substantial changes to the property. (R. 2492-95). 1000 Brickell believed these actions violated the consent agreement. Those actions 14 Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk occurred more than five years before 1000 Brickell filed the original complaint. For one or all these reasons, 1000 Brickell filed the original complaint outside the five-year statute of limitations. The trial court erred in determining otherwise. B. The continuing breach doctrine does not apply. To overcome all the stipulations and facts establishing 1000 Brickell's failure to file the original complaint within the statute of limitations, the trial court relied on the continuing breach doctrine. This doctrine cannot apply here. The continuing breach doctrine (otherwise known as the continuing violation doctrine) is a doctrine borrowed from the tort context. Winn -Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1042 (11th Cir. 2014). The doctrine "distinguishes between a single act that causes multiple, cascading harms, and recurrent, repetitive acts excepted from the running of the statute of limitations[.]" Id. Florida courts have been reluctant to expand the continuing breach doctrine to a restrictive covenant running with the land. See id. at 1043 ("No Florida authority has addressed whether the continuing violation doctrine applies to restrictive covenants running 15 Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk with the land."). And this Court has been reluctant to expand the continuing tort doctrine even within the context of torts. See Aristide v. Jackson Mem'l Hosp., 917 So. 2d 253, 255 (Fla. 3d DCA 2005). ("The doctrine of continuing tort is also inapplicable. No Florida appellate court has applied the continuing tort doctrine to medical malpractice cases."). This case involves something other than a tort or a mere restrictive covenant: a reverter provision.3 This Court should not expand the continuing breach doctrine to reverter provisions in warranty deeds. The legal effect of triggering a reverter provision demonstrates why. Once triggered, a reverter provision nullifies the warranty deed, including its conditions, and the parties return to the legal positions they had with respect to the property before they executed the deed. See Jacksonville Transp. Auth. v. Cont'l Equities, Inc., 636 So. 2d 1354, 1357 (Fla. 1st DCA 1994) ("When the interests conveyed by the deed reverted to the grantors . . ., the quitclaim deed, including its 3 Remarkably, the trial court relied on Viera v. City of Lake Worth, Florida, 230 So. 3d 484 (Fla. 4th DCA 2017), as a Florida case applying the continuing breach doctrine to a restrictive covenant running with the land. (R. 3218). But Viera had nothing to do with such a scenario. Instead, the case involved the failure to pay health insurance benefits. 16 Suu1nitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk conditions, was nullified and the parties returned to the positions they held with respect to the property before the deed was executed. Under these circumstances, there were no longer any obligations between [the grantee] and the grantors relating to the quitclaim deed, and therefore no basis for a breach of contract suit by either of the grantors against [the grantee]."). As a result, there are no longer any obligations between the parties. Id. In fact, the agreement is no longer in effect. Id. This explains why the continuing breach doctrine is not applicable in the context of reverter provisions. Even if this Court believed the continuing breach doctrine may apply to cases involving reverter provisions in warranty deeds, it should not apply the doctrine here. Several circumstances, whether viewed individually or collectively, demonstrate why. First, the plain language of the reverter provision bars the application of the continuing breach doctrine. It provided that if "any" part of the property was "used for any purpose other than public park purposes," the estate would "automatically and immediately terminate, and all right, title and interest in and to such property shall thereupon revert to the grantor." (R. 2383-84). Therefore, there 17 .submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk could be no continuing breach, only one breach that immediately entitled 1000 Brickell to the property. To decide otherwise would require the Court to rewrite the reverter provision (i.e., the contract). The Court lacks the authority to do so. See Pol v. Pol, 705 So. 2d 51, 53 (Fla. 3d DCA 1997) ("It is well established that a court cannot rewrite the clear and unambiguous terms of a voluntary contract."); Walgreen Co. v. Habitat Dev. Corp., 655 So. 2d 164, 165 (Fla. 3d DCA 1995) ("When a contract is clear and unambiguous, the court is not at liberty to give the contract any meaning beyond that expressed. Further, when the language is clear and unambiguous, it must be construed to mean just what the language therein implies and nothing more." (citations and quotation marks omitted)); Universal Med. Inv. Corp. v. Mike Rollison Fence, LLC, 331 So. 3d 242, 247 (Fla. 1st DCA 2021) ("A party is bound by, and a court is, powerless to rewrite, the clear and unambiguous terms of a voluntary contract." (citation omitted)). This is reason enough to reject the continuing breach doctrine here. Second, even in jurisdictions where the continuing violation doctrine applies, courts recognize the doctrine does not apply to violations based on fixed structures. See Winn -Dixie, 746 F.3d at 18 Jmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk 1043-44 (recognizing fixed structure cases are not subject to the continuing violation doctrine); Russell v. Williams, 964 P.2d 231 (Okla. Civ. App. 1998) (refusing to apply the continuing violation doctrine to a case involving a fixture, a "modular home," violating a restrictive covenant prohibiting buildings near property lines). Here, any violation of the warranty deed or consent agreement is necessarily based on a fixed structure (the restaurant). This renders the continuing violation doctrine inapplicable here. Despite the plain language of the reverter provision and the nature of the alleged violation, the trial court relied on five cases for the proposition that the continuing breach doctrine should apply: Grove Isle Ass'n, Inc. v. Grove Isle Associates, LLLP, 137 So. 3d 1081, 1094-95 (Fla. 3d DCA 2014) (excessive fees and dues); City of Quincy v. Womack, 60 So. 3d 1076, 1077-78 (Fla. 1st DCA 2011) (failure to repair a dam and spillway); Winn -Dixie, 746 F.3d at 1043-44 (violations of grocery exclusives in leases with shopping centers); Viera v. City of Lake Worth, Florida, 230 So. 3d 484, 485-87 (Fla. 4th DCA 2017) (failure to make periodic payments of health insurance benefits); XP Glob., Inc. v. AVM, L.P., 16-CV-80905, 2016 WL 19 .Gbmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk 4987618, at *3-4 (S.D. Fla. Sept. 19, 2016) (continued use of confidential information). None of these cases help 1000 Bricke11.4 In contrast with. the opinions cited by the trial court, this case involves a reverter provision which, if triggered, automatically entitles 1000 Brickell to the property. No agreement between the parties, whether the warranty deed or consent agreement, entitles 1000 Brickell to periodic payments or otherwise entitles 1000 Brickell to damages. And nothing in the reverter provision resembles the contract provisions at issue in the opinions cited by the trial court. Ultimately, the plain language of the reverter provision, rather than a judicial doctrine, should control how to interpret a breach of the provision. See Pot, 705 So. 2d at 53; Walgreen, 655 So. 2d at 165; Universal Med. Inv., 331 So. 3d at 247 ("A party is bound by, and a court is powerless to rewrite, the clear and unambiguous terms of a voluntary contract." (citation omitted)). The plain language of the 4 In Grove Isle, this Court applied the continuing breach doctrine to a breach of contract count, but not the counts implicating a restrictive covenant. 137 So. 3d at 1086-95. Apparently, the Eleventh Circuit's observation about Florida law remains sound: No Florida authority has applied the continuing breach doctrine to restrictive covenants running with the land. Winn -Dixie, 746 F.3d at 1043. Certainly, the trial court did not cite any case to the contrary. 20 Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk reverter provision here could not be any clearer in refuting the notion of a continuing breach. Although the trial court believed collecting rent from the restaurant mandated the application of the continuing breach doctrine, (R. 3219), neither the warranty deed nor consent agreement prohibited collecting rent. Moreover, the only remaining counts (Counts I and II) do not seek damages for rent payments. Thus, any breaches of those counts do not concern payments owed. Instead, the alleged breach here involved a fixed structure (the restaurant) expanding its footprint. This circumstance brings this case, even under one of the key opinions cited by the trial court (Winn -Dixie), outside the ambit of cases applying the continuing breach doctrine. Besides relying on easily distinguishable cases, the trial court misunderstood the City's argument on the legal effect of triggering a reverter provision. As explained above, once a party triggers a reverter provision, the warranty deed is nullified, and the parties return to the positions they had with respect to the property before they executed the deed. See Jacksonville Transp. Auth., 636 So. 2d at 1357. In rejecting this argument, the trial court reasoned that 1000 Brickell did not actually possess the property upon the alleged 21 Submitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk breach. (R. 3219). But the City did not suggest 1000 Brickell actually possessed the property. The City meant the legal effect of triggering a reverter provision returns the parties to the legal positions they had with respect to the property before they executed the deed. Put another way, a breach of a reverter provision transfers legal ownership of the property back to the grantor (or its heirs or assigns) . As a result of this automatic and immediate change, one breach can occur and no other. It is then incumbent on the grantor (or its heirs or assigns) to file a lawsuit seeking reversion within the statute of limitations. But 1000 Brickell failed to do so. Final summary judgment in the City's favor is, therefore, required. C. Even if 1000 Brickell filed the original complaint within the statute of limitations, it filed the operative complaint, which does not relate back to the original complaint, outside the statute of limitations. If this Court agrees with the City on the inapplicably of the continuing breach doctrine, and yet somehow concludes 1000 Brickell filed its original complaint within the statute of limitations, 1000 Brickell's causes of action are still time barred. This is so because the amended complaints, which first raised the issue of the 22 Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk restaurant allegedly violating the consent agreement, did not relate back to the original complaint. Although pleading rules are to be liberally construed, this liberality has its limits. Castro v. Linfante, 307 So. 3d 110, 113 (Fla. 3d DCA 2020). One such limit is the well -established principle that "[o]ne cannot defeat the bar of the statute of limitations by filing a new cause of action labelled as an amended complaint." Id. (quoting Sch. Bd. of Broward Cty. v. Surette, 394 So. 2d 147, 154 (Fla. 4th DCA 1981)). This principle is known as the relation back doctrine. Rule 1.190 governs amended pleadings. It provides: When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to a the date of the original pleading. Fla. R. Civ. P. 1.190(c). In other words, rule 1.190(c) "allow[s] relation back where the claims from the amended pleading arise out of the same conduct, transaction, or occurrence as in the original, timely filed complaint." Kopel v. Kopel, 229 So. 3d 812, 816 (Fla. 2017) (emphasis added). See also Palm Beach Cnty. Sch. Bd. v. Doe, 210 So. 3d 41, 47 (Fla. 2017) ("The proper focus of the inquiry is not whether the amended pleading sets forth a new or different claim, 23 ,ubmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk but whether the claims within the amended pleading are part of the same conduct, transaction, or occurrence as in the original pleading.") (emphasis added) . Ultimately, the original complaint must give the defendant "fair notice" of the general factual scenario or factual underpinning of the claim. Kopel, 229 So. 3d at 816. In this case, the operative complaint (like the first amended complaint) did not relate back to the filing of the original complaint because the operative complaint was not based on the same conduct, transaction, or occurrence as in the original complaint. The original complaint did not offer "fair notice" of the later claims made in the operative complaint. The factual underpinnings of both complaints demonstrate why. The warranty deed conveyed two parcels of a property to the City: a north parcel and a south parcel. (R. 2383-84). Its reverter clause provided that if "any" part of the property was "used for any purpose other than public park purposes," the entire property would revert to the grantor. Id. Years later, the City and 1000 Brickell entered into a consent agreement which permitted the restaurant to use a portion of the north parcel of the property for its restaurant. 24 .,ubmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk (R. 2386-87). The consent agreement had nothing to do with the south parcel of the property. Id. In the original complaint, 1000 Brickell alleged a violation of the warranty deed on the south parcel of the property only. (R. 31-40). That complaint sought to enjoin the City from conveying the south parcel to a private entity (Brickell Flatiron, LLC). (R. 36). The original complaint had nothing to do with the north parcel of the property, the consent agreement, or the restaurant on the north parcel of the property (or any other restaurant). (R. 31-40). In the operative complaint (like the first amended complaint), 1000 Brickell alleged a violation of the warranty deed and consent agreement on the north parcel of the property only. (R. 1794-1851). The allegations concerned the restaurant exceeding the scope of use permitted by the consent agreement. Id. As these circumstances demonstrate, the operative complaint alleged new conduct and occurrences that were not included in the original complaint and had nothing to do with the parcel of property at issue in the original complaint. For example, all the information regarding the restaurant, which did not operate on the south parcel of the property and is in no way mentioned in the original complaint. 25 .Abmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk The operative complaint not only alleged new conduct and occurrences, but it also alleged a new transaction (the consent agreement). The complaint hinged on an alleged violation of that agreement. Indeed, as framed by 1000 Brickell's allegations, the City did not trigger the reverter provision until it allowed the restaurant to exceed the scope of use permitted by the consent agreement. In other words, the consent agreement superseded the warranty deed; it became the governing transaction. Given all these circumstances, it cannot be said that the operative complaint related back to the original complaint. See Floyd v. State (In re Forfeiture of: £1992 Pontiac Firebird No. 1G2FS23T3NL212004), 47 So. 3d 344 (Fla. 2d DCA 2010) (holding the relation back doctrine did not apply, even though the amended complaint involved the same parties and cause of action (i.e., forfeiture)). As the operative complaint did not relate back to the original complaint, 1000 Brickell's causes of action are time barred even if 1000 Brickell filed the original complaint within the five-year statute of limitations. As explained above, the restaurant made substantial changes to the property in 2007. (R. 2492-95). By 2009, the restaurant finished construction on a new structure. (R. 2532). 1000 26 SL__Mitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk Brickell argued that such actions violated the consent agreement. These actions occurred more than five years before 1000 Brickell filed the operative complaint (and the first amended complaint). Moreover, 1000 Brickell essentially conceded that its causes of action accrued no later than 2012. (R. 1798) (alleging 1000 Brickell became aware of a violation of the warranty deed and consent agreement loin or about October 22, 2012"); (R. 294) (referring to the date of discovery as "the latest" date when its causes of action could accrue). Although, as noted before, the date of breach and not the date of discovery triggers the running of the statute of limitations, see Fed. Ins. Co., 707 So. 2d at 1122; Lee, 678 So. 2d at 820; Med. Jet, S.A., 941 So. 2d at 578, logic dictates the date of discovery is the latest time when the breach could have occurred. But, even giving 1000 Brickell the benefit of the date of discovery, it failed to file the operative complaint within five years of that date. Put simply, the filing of the original complaint within the five-year statute of limitations would not save 1000 Brickell's case because the operative complaint did not relate back to it. Despites all these circumstances, the trial court reasoned that the relation back doctrine applied because the allegations in each 27 .,Libmitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk complaint "relate to the same transaction —the Warranty Deed." (R. 3219) (emphasis added). But the allegations in each complaint do not relate to the same transaction. The allegations in the operative complaint relate to a new transaction —the consent agreement. For one or all these reasons, the trial court erred in denying the City's renewed motion for final summary judgment. This Court should reverse and remand for entry of judgment in the City's favor. II. THE TRIAL COURT ERRED IN GRANTING 1000 BRICKELL'S MOTION FOR FINAL SUMMARY JUDGMENT BECAUSE GENIUNE DISPUTES AS TO MATERIAL FACTS EXIST OR 1000 BRICKELL IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. The second question presented is whether, even if the City is not entitled to summary judgment, is 1000 Brickell entitled to such? For purposes of analyzing 1000 Brickell's motion for summary judgment, the City is the non-moving party. This means the Court "must view the evidence and draw all factual inferences therefrom in a light most favorable" to the City and "must resolve any reasonable doubts" in the City's favor. Brevard Cnty. v. Waters Mark Dev. Enterprises, LC, 350 So. 3d 395, 398 (Fla. 5th DCA 2022) (applying the new summary judgment standard). And it is important to remember that "a motion for summary judgment is not a trial by 28 abmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk affidavit or deposition. Summary judgment is not intended to weigh and resolve genuine issues of material fact, but only identify whether such issues exist. If there is disputed evidence on a material issue of fact, summary judgment must be denied and the issue submitted to the trier of fact." Shands v. City of Marathon, 261 So. 3d 750, 753 (Fla. 3d DCA 2019) (quoting Perez-Gurri Corp. v. McLeod, 238 So. 3d 347, 350 (Fla. 3d DCA 2017)). With these well -established principles in mind, this Court must analyze the competing narratives offered by the parties. On the one hand, 1000 Brickell framed the case as one where, until shortly before it filed suit, it had no clue of the restaurant's expanded operations. (R. 279). On the other hand, the City presented evidence showing 1000 Brickell knew, for nearly seven years or more before it filed suit, of the restaurant's expanded operations. (R. 893-94). The City even provided evidence showing that 1000 Brickell's managing partner expressly approved of the expanded operations. (R. 894). This evidence contradicted the so-called "undisputed fact" of when 1000 Brickell discovered the expanded operations. As explained below, the competing narratives and governing law precluded summary judgment for 1000 Brickell. 29 , .,bmitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk A. 1000 Brickell is not entitled to summary judgment on the issue of forfeiture. In first place, 1000 Brickell is not entitled to judgment, as a matter of law, on the issue of reversion (i.e., forfeiture against the City). "[I]t is well settled that `equity abhors a forfeiture,' that 'such restrictions are not favored in law if they have the effect of destroying an estate,' and that they 'will be construed strictly and will be most strongly construed against the grantor."' White v. Metro. Dade Cty., 563 So. 2d 117, 125 (Fla. 3d DCA 1990) (quoting Dade Cty. v. City of N. Miami Beach, 69 So. 2d 780, 782-83 (Fla. 1953)). See also Torres v. K-Site 500 Assocs., 632 So. 2d 110, 112 (Fla. 3d DCA 1994) ("It is a fundamental principle that equity prefers not to enforce the breach of contractual provisions which result in extreme forfeiture."); Tiffany Realty, Inc. v. Alvin, 311 So. 2d 832, 834 (Fla. 3d DCA 1975) ("It is a well settled principle of Florida law that equity abhors a forfeiture."). "This is all the more true when the forfeiture is against the public." Dade Ctv., 69 So. 2d at 783. Here, 1000 Brickell demanded forfeiture against the City based on the City allegedly violating the consent agreement. The argument is premised on the notion that any expansion of the restaurant in the 30 submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk north parcel of the property automatically changed the nature of the entire property (north and south parcel) into something other than a public park. This premise is wrong. As the premise is wrong, so is the conclusion that followed. A restaurant operated for a commercial benefit is not necessarily inconsistent with "public park" purposes. See White, 563 So. 2d at 124 ("Appellant/heirs next argue that turning the tennis complex over to a commercial operator violates the deed restriction. We do not agree. Florida courts have consistently ruled that commercial benefit does not defeat a park purpose."); Antioch Univ. v. State, Dep't of Nat. Res., 647 So. 2d 915 (Fla. 4th DCA 1994) (affirming a jury verdict finding the "[u]se or structures of the Garden Club or refreshment building" did not violate a reverter provision that required the land to be "used and devoted solely and exclusively for State Park purposes"). This conclusion is mandated by the Florida Supreme Court's adoption of the "modern concept" of public parks — one which recognizes the value of restaurants in parks and approves the presence of a private corporation that may profit from its activities there. The Supreme Court elaborated on the modern concept of public parks as follows: 31 -abmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk This definition explains the change in concept of a park from the time when a park was understood to be an open square or plaza, usually containing shade trees and seats, to the present, when a park is considered not only as ornamental but also as a place for recreation and amusement. Changes in the concepts of parks have continued and the trend is certainly toward expanding and enlarging the facilities for amusement and recreation found therein. The fact that charges will be made for use of the facilities and that a private corporation will profit therefrom are not controlling. Hanna v. Sunrise Recreation, Inc., 94 So. 2d 597, 600-01 (Fla. 1957). In essence, 1000 Brickell urged the trial court to apply the ancient concept of a park —trees, grass, and other vegetation without any commercial activity. But that ancient concept conflicts with the Florida Supreme Court's adoption of the modern concept. Id. at 601. Thus, 1000 Brickell failed to establish that it was entitled to judgment as a matter of law on the question of whether a restaurant's use of only a portion of one parcel of the property required forfeiture. This is especially true given the evidence of 1000 Brickell's express or implied approval of the restaurant's expanded operations. Given all the facts of this case, a trier of fact should consider the issue of forfeiture. And any doubt on this point must be resolved 32 Jbmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk in the City's favor given the well -established law that equity abhors a forfeiture, especially against the public. See Dade Cty., 69 So. 2d at 782-83; Torres, 632 So. 2d at 112; White, 563 So. 2d at 125; Tiffany Realty, 311 So. 2d at 834. B. If the City is not entitled to summary judgment on the issue of the statute of limitations, 1000 Brickell is not entitled to summary judgment on the issue. Even if this Court believed forfeiture was required as a matter of law, the City presented affirmative defenses, with supporting evidence, establishing why final summary judgment for 1000 Brickell was inappropriate. This included the statute of limitations defense. In the interest of brevity, the City adopts and incorporates the legal analysis and arguments on this defense raised above, with additional points addressed below. When moving for summary judgment, 1000 Brickell argued that its causes of action accrued on the date it allegedly discovered the breach (October 2012). (R. 294). It even referred to this date of discovery as undisputed. (R. 279) (listing the date in the "statement of undisputed facts") . 1000 Brickell also referred to the date of discovery as "the latest" date when its causes of action could accrue, 33 submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk thereby undermining its later claim on the continuing breach doctrine. (R. 294). As explained above, the date of breach, not the date of discovery controls. See Fed. Ins. Co., 707 So. 2d at 1122; Lee, 678 So. 2d at 820; Med. Jet, S.A., 941 So. 2d at 578. However, if the City is in any way mistaken on this point, the City presented showing that 1000 Brickell knew of the restaurant's expanded operations and expressly approved of them. (R. 893-94). This obviously created a genuine dispute of facts. Furthermore, as discussed before, the City presented evidence showing the restaurant expanded operations in 2007 (seven years or more before 1000 Brickell filed suit) and finished construction on a new structure no later (although likely much earlier) than 2009. (R. 2492-95, 2532). And 1000 Brickell previously stipulated that it could have filed suit in 2000. (R. 2829, 2851). At the very least, these facts, whether viewed individually or collectively, created genuine disputes on the date the causes of action accrued. Finally, even if this Court believed the continuing. breach doctrine could apply, the evidence submitted by the City established, at the very least, a genuine dispute of material facts or no entitled to 34 Jubmitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk judgment as a matter of law. The continuing breach doctrine is usually a question of fact for the trier of fact (unless for reasons analyzed above, the doctrine is inapplicable to a cause of action) . See Pearson v. Ford Motor Co., 694 So. 2d 61, 67-68 (Fla. 1st DCA 1997) ("Whether the continuing torts doctrine applies to the facts of a case is for a trier of fact to decide."). For one or all these reasons, the statute of limitations precluded summary judgment for 1000 Brickell. C. 1000 Brickell is not entitled to summary judgment on the -issue of -waiver. Another affirmative defense also precluded summary judgment for 1000 Brickell: the issue of waiver. "A waiver is the intentional relinquishment of a known right and may be express or implied." Torres, 632 So. 2d at 112. Generally, the issue of waiver is one for the fact finder. Popular Bank of Florida v. R.C. Asesores Financieros, C.A., 797 So. 2d 614, 619 (Fla. 3d DCA 2001). 1000 Brickell argued the restaurant exceeded the portion of the park allowed for restaurant purposes and this triggered the reverter provision. This means, as analyzed before, 1000 Brickell's lawsuit is premised on the notion that restaurant purposes are not park 35 . ubmitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk purposes. Even assuming for the sake of argument this premise is correct, then the consent agreement nullified the reverter provision. The warranty deed prohibited the use of "any" portion of the property for "any purpose other than public park purposes ...." (R. 1808-09). But the consent agreement authorized the use of a portion of the property for restaurant purposes. (R. 1810-11) . If restaurant purposes are never park purposes, as 1000 Brickell essentially contends, the consent agreement cannot be reconciled with the warranty deed. After all, the deed prohibited the use of any portion of the property for anything other than public park purposes. Moreover, the consent agreement did not provide that, in the event the restaurant exceeded the scope of use, the entire property would automatically revert to 1000 Brickell. (R. 1810-11). The consent agreement should have included such express language if it wanted the reverter provision to survive. Merely noting the reverter provision was insufficient. Any doubt on this point must be resolved in the City's favor given all the authority cited above regarding how equity abhors a forfeiture. Put another way, to the extent there is any ambiguity, the Court must construe the consent agreement to avoid forfeiture. See Roschman Partners v. S.K. Partners I, Ltd., 627 So. 2d 36 Submitted into the public record for item(s) PA.1 on 09/28/2023 . City Clerk 2, 7 n.7 (Fla. 4th DCA 1993) ("[A]n ambiguous provision should be construed where possible to avoid a forfeiture."). In addition, 1000 Brickell waived the reverter provision "by actions or conduct warranting an inference that a known right has been relinquished." Torres, 632 So. 2d at 112. 1000 Brickell's managing partner wrote a letter to the City urging a commercial use of the north parcel of the property for the restaurant. (R. 744-45). He also regularly visited the restaurant from the time the restaurant's owner leased the property (1999) to the time when their companies litigated against each other (2013). (R. 893-94). This included the period during which the restaurant significantly expanded its operations (in 2000 or 2007 and beyond). And 1000 Brickell's managing partner expressly approved of the expanded operations. (R. 894). Yet, 1000 Brickell waited years (until 2013) before notifying the City of an alleged violation of the reverter provision. (R. 1798). Its "conduct in failing to promptly invoke" the reverter provision and "in electing to allow" the restaurant to proceed with expanded operations "placed [the City and the restaurant] off guard, and lulled them into believing" that 1000 Brickell was "not intending to enforce the perceived breach" of the reverter provision. Torres, 632 So. 2d at 112. 37 L. submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk For one or all these reasons, the issue of waiver precludes summary judgment for 1000 Brickell. This is an issue for a fact finder to resolve. Although 1000 Brickell argued the City waived the defense of waiver, namely, waiver by conduct, it was mistaken. The City pled waiver as an affirmative defense multiple times. (R. 267, 1857). While it is true the City did not use the magic words "waiver by conduct," neither the plain language of Florida Rule of Civil Procedure_1.110(d) nor any case law cited by 1000 Brickell required the City to use such magic words. And the trial court's order on 1000 Brickell's motion for summary judgment did not find the City waived the defense of waiver. (R. 2034, 3211-13). Waiver, in addition to or in lieu of, all the arguments raised above, precluded summary judgment for 1000 Brickell. The case should be submitted to a trier of fact, assuming the City's motion for final summary judgment did not entitle it to final judgment. CONCLUSION For these reasons, this Court should reverse the final judgment entered in 1000 Brickell's favor and the order denying the City's renewed motion for final summary judgment. On remand, the trial 38 Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk court should be instructed to enter final judgment in the City's favor. In the alternative, this Court should reverse the judgment in 1000 Brickell's favor and remand for further proceedings, namely, a trial. Respectfully submitted, VICTORIA MENDEZ, City Attorney ERIC J. EVES, Assistant City Attorney Attorneys for Appellant 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130-1910 Phone: (305) 416-1800 Primary Email: eeves@miamigov.com Secondary Email: csantos@miamigov.com By: s/ Eric J. Eves Eric J. Eves Florida Bar No. 91053 CERTIFICATE OF SERVICE I certify that on March 9, 2023, the Initial Brief was emailed to Scott D. Kravetz, Esq., at sdkravetz@duanemorris.com, and Richard D. Shane, Esq., at rdshane@duanemorris:com. By: s/ Eric J. Eves 39 Eric J. Eves Florida Bar No. 91053 14278-Submittal-Eddy Leal -Initial Brief of Appellant Submitted into the public record for item(s) PA.1 , on 09/28/2023 . City Clerk CERTIFICATE OF COMPLIANCE I certify the Initial Brief complies with the font requirements of Florida Rule of Appellate Procedure 9.045(b) and the word count requirements of Florida Rule of Appellate Procedure 9.210 (a) (2) (B) . By: s/ Eric J. Eves 40 Eric J. Eves Florida Bar No: 91053 14278-Submittal-Eddy Leal -Initial Brief of Appellant