Florida’s 3rd District Court of Appeal rules in island development case

By David Hutton | Feb 1, 2018

Florida’s 3rd District Court of Appeal has handed down an opinion in the latest in the string of disputes over development by Two Islands Development Corp.

MIAMI — Florida’s 3rd District Court of Appeal has handed down an opinion in the latest in the string of disputes over development by Two Islands Development Corp.

The panel hearing the case, which originated in Miami-Dade County Circuit Court, included Judges Kevin Emas, Thomas Logue and Richard Suarez. Emas wrote the opinion.

Two Islands Development Corp., et al., was named as the appellant, with David L. Clarke, et al., appellee.

“[W]e reverse the trial court’s order dismissing with prejudice all counts against the Williams Island Defendants, as plaintiffs had already voluntarily dismissed those defendants prior to the trial court’s entry of a written order of dismissal,” Emas wrote. “We also reverse the trial court’s order dismissing with prejudice Count IV against individual three South Island defendants.”


Príve at Island Estates  

Further, the court also upheld the trial court’s order dismissing with prejudice counts against the South Island defendants and dismissing with prejudice a count against one South Island defendant.

This appeal involves three islands in Aventura: Williams Island, the North Island and the South Island and associated groups of appellees.

According to court documents, the center of the dispute is the development, construction, marketing and sale of a 16-story, two-tower condominium building on the North Island, Príve at Island Estates.  

In 2011, South Island residents expressed an interest in gaining access to amenities that were part of development on the North Island. Two years later, Gary Cohen, president of Two Islands Development, offered a plan to South Island homeowners for a shared maintenance association, which was approved after a vote by homeowners.

Cohen, as president of the Island Estates Homeowners’ Association, the trustee of the trust and president of Two Islands Development, executed the easement, operating and development agreement (EODA).

Appellants alleged that, in reliance in part on the agreement, developers proceeded with the development of the Príve at Island Estates on the North Island.

The lawsuit was the fifth in a string of cases surrounding the development on the North Island, including a trespass action over the construction of sidewalks, according to the opinion.

The developers alleged that due to the lawsuits and ensuing protests, they incurred needless expenses and lost sales due to concerns over pending litigation.

The original complaint sought $30 million in damages and included breach of covenant against South Island defendants; specific performance of covenant against South Island defendants; breach of the duty of good faith and fair dealing against the South Island defendants; slander of title against several defendants; and tortious interference with settlement agreements against Island defendants, court records state.

Emas wrote in the Jan. 24 opinion that the "South Island Defendants’ individual lots are specifically excluded from the agreement."

“As a result, the EODA cannot and did not create an easement on those individual lots and therefore cannot create an ‘interest’ in those lots such that it could constitute a covenant running with the land,” he wrote.  “The trial court properly dismissed (three counts) against the South Island Defendants on this basis.”

Citing Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., Emas wrote that the "Florida Supreme Court extended the litigation privilege, finding that 'absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ... so long as the act has some relation to the proceeding.'” 

Emas wrote the tortious interference claim against a South Island defendant is barred by the litigation privilege because the alleged representations and actions by that defendant “occur[ed] during the course of a judicial proceeding” and these alleged acts “have some relation to the proceeding.”

“However, we hold that the trial court erred in dismissing Count IV, alleging slander of title against four individual South Island defendants,” he wrote.

The court affirmed in part, reversed in part, and remanded for further proceedings consistent with its opinion.

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