04-1834 & 04-1750 & 04-2476 CLEAR CHANNEL V. SUNBEAM

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 04-1834 & 04-1750 & 04-2476 CLEAR CHANNEL V. S

Case Date: 12/28/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2005 CLEAR CHANNEL METROPLEX, INC.; CLEAR CHANNEL BROADCASTING LICENSES, INC.; and GFS CORPORATION, Appellants/Cross-Appellees, ** vs. ** SUNBEAM TELEVISION CORPORATION, ** Appellee/Cross-Appellant. ** LOWER TRIBUNAL NO. 02-21423 CASE NOS. 3D04-1834, 3D04-1750, 3D04-2476 ** ** **

Opinion filed December 28, 2005. Appeals from the Michael Chavies, Judge. Circuit Court for Miami-Dade County,

Shubin & Bass and Jeffrey S. Bass; Duke, Mullin Galloway and Amy Galloway and Salvatore H. Fasulo, appellants/cross-appellees.

and for

Colson Hicks Eidson and Joseph M. Matthews; Milledge & Iden and Allan Milledge, for appellee/cross-appellant.

Before COPE, C.J., and GREEN, J., and SCHWARTZ, Senior Judge. SCHWARTZ, Senior Judge. This appeal concerns an oblong peninsula extending in a north-south direction into Biscayne Bay on the north side of the

east-west 79th Street Causeway in North Bay Village.

For more

than forty years, the eastern half of the property has been owned by the appellants Clear Channel Metroplex, Inc., and Clear Channel Broadcasting and its Licenses, predecessors, Inc. which [collectively until 1995 "Clear was the

Channel"],

location of radio station WIOD. 1

The appellee Sunbeam Television

Corporation owns the western half of the property, the site of a TV station, WSVN. In 2002, Clear Channel reached a tentative agreement with GFS Corporation to sell its "radio" half for the construction of a condominium project. Sunbeam, however, objected to the

proposed use of Clear Channel's property and brought the present action for a declaratory judgment against Clear Channel, in

which GFS intervened, claiming that the project was forbidden by two provisions of an agreement entered into in 1962, when both stations were in active operation there, concerning the shared use of the entire parcel. Specifically, Sunbeam claimed:

(1) Under paragraph 4, Clear Channel (or, for that matter, Sunbeam itself) could not use any part of the area for anything but "broadcasting purposes." That provision states:

The parties hereto . . . agree not to impose any restrictions discriminating in the use of said facilities except as such restrictions shall be reasonably necessary
1

WIOD continues to transmit its radio signal from towers on the property, but has moved its studios to Miramar, Florida. 2

to the continued proper use of said facilities for their present purposes and any such restrictions shall apply uniformly to the Officers, employees, business invitees and visitors of both the television and radio broadcasting facilities[;] and that (2) Under paragraph 5 of the agreement, neither party could construct any building on what was roughly the southern half of the parcel without the prior consent of the other which, in this case, Sunbeam refused to give. That provision states:

the parties agree that no further buildings, drives, parking areas or other improvements will be made on the southerly 314.25 feet of the property without the joint consent of the parties; except that Biscayne may install a sidewalk. . . without the necessity of obtaining the consent of Sunbeam. Sunbeam also claimed the right to an irrevocable license over Clear Channel's half of the property to use a parking lot and helicopter pad, which had been constructed on Clear

Channel's property, for so long as Sunbeam owned and broadcasted from a television station on its half. In the final judgment now before us, rendered after a nonjury trial, the court found in favor of Sunbeam as to both arguments Channel's Biscayne parcels, concerning property, Agreement limiting the restrictions that a valid either (1) use on the use 4 of of on or Clear the both uses

holding imposes them to

"paragraph

restriction uses

broadcast

3

reasonably necessary to their continued broadcast uses"; and (2) paragraph 5 remains a valid prohibition on improvements to the southern portion of the property without joint consent of the parties. On Clear Channel and GFS Corporation's appeal from

those determinations, we agree that the first is erroneous, but affirm as to the second. Sunbeam's cross-appeal We also affirm the court's ruling on concerning its application for an

irrevocable license. I. We find little difficulty in concluding that the trial

court's determination that the paragraph 4 restriction on the use of the property to "broadcast purposes" is erroneously in conflict with the basic rule that a trial court cannot vary the terms of a written agreement to achieve what it may believe is a desirable result. See Home Dev. Co. of St. Petersburg, Inc. v.

Busani, 178 So. 2d 113 (Fla. 1965); AT&T Wireless Servs. of Fla., Inc. v. WCI Cmtys., Inc., ____ So. 2d ____ (Fla. 4th DCA Nos. 4D04-3285, 4D04-3286, opinion filed, Sept. 7, 2005)[30 Fla. L. Weekly D2130]; Hurtado v. Spanish Broad. Sys. of Del., Inc., 904 So. 2d 459 (Fla. 3d DCA 2005); Nat'l Health Labs., Inc. v. Bailmar, Inc., 444 So. 2d 1078 (Fla. 3d DCA 1984), review

denied, 453 So. 2d 43 (Fla. 1984).

Paragraph 4 seems to us to

be simply and solely a mutual non-aggression pact between the parties not to employ the facilities, see Aramark Unif. & Career

4

Apparel,

Inc.

v. is

Easton, defined to the

894 as

So.

2d

20, that

27 is

(Fla. built,

2004)("`Facility' installed, they each or

`something a

established on

serve

particular to

purpose.'"), with or

maintain

property

interfere

discriminate against the other. 2 (There is no evidence that the proposed condominium use would violate such an understanding.) There is simply nothing which even refers to "broadcasting," much less imposes a limitation upon the parties' use of their own property to that endeavor. It is of course clear that any

restriction on one's use of her property must be very strictly construed. See Washingtonian Apartment Hotel v. Schneider, 75

So. 2d 907 (Fla. 1954); Moore v. Stevens, 90 Fla. 879, 106 So. 901 (1925); WCI Cmtys., Inc., ____ So. 2d at ____ [30 Fla. L. Weekly at D2130]; Shields v. Andros Isle Prop. Owners Ass'n, Inc., 872 So. 2d 1003, 1006 (Fla. 4th DCA 2004). Particularly

with, but even without, considering this rule of construction [sic], the trial court's limitation on the use of the property cannot stand. II.

2

It should be noted that such an understanding was particularly appropriate in light of the fact that Clear Channel was simultaneously granted an easement to maintain an antenna on Sunbeam's half of the property. In addition, the agreement also acknowledged that the electrical power transformer vault was located in the Clear Channel building and provided that Clear Channel would not interfere with the power supply to Sunbeam's property. 5

We reach a different result as to the declaration that paragraph 5 of the agreement is valid, extant and enforceable. The appellants essentially do not, as they could not, claim that the agreement is unclear or invalid on its face. Ref. Co. v. Watson, 65 So. 2d 732, 733 (Fla. See Sinclair 1953), cert.

denied, 346 U.S. 872, 74 S. Ct. 121, 98 L. Ed. 2d 381 (1953); Publix Super Markets, Inc. v. Wilder Corp. of Del., 876 So. 2d 652 (Fla. 2d DCA 2004), review denied, 892 So. 2d 1015 (Fla. 2004); Cottrell v. Miskove, 605 So. 2d 572, 573 (Fla. 2d DCA 1992); Norwood-Norland Homeowners' Ass'n v. Dade County, 511 So. 2d 1009 (Fla. 3d DCA 1987), review denied, 520 So. 2d 585 (Fla. 1988). They seem to contend, however, that Sunbeam has waived

the right to rely on the provision because it constructed a jointly-used parking lot and other facilities in the southern "no build zone" during the years after 1962. other things, the record shows that in each Because, among such instance

Sunbeam secured the consent of Clear Channel as the agreement provides, definition we of cannot agree, as in "the accordance voluntary with and the classic

waiver

intentional

relinquishment of a known right," Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005), that Sunbeam has waived its own right to insist upon its agreement with Clear Channel's proposal. See Gilman v. Butzloff, 22 So. 2d 263, 265

(Fla. 1945); Miracle Ctr. Assocs. v. Scandinavian Health Spa,

6

Inc., 889 So.2d 877, 879 (Fla. 3d DCA 2004), review denied, No. SC05-884 (Fla. Oct. 3, 2005); Woodlands Civic Ass'n, Inc. v. David M. Darrow, D.C., P.A., 765 So. 2d 874, 877 (Fla. 5th DCA 2000); Mizell v. Deal, 654 So. 2d 659, 663 (Fla. 5th DCA 1995); State v. Belien, 379 So. 2d 446, 447 (Fla. 3d DCA 1980). Especially considering the rule that waiver is ordinarily an issue for the finder of fact, see Rutig v. Lake Jem Land Co., 20 So. 2d 497, 499 (Fla. 1945); Anthony v. Gary J. Rotella & Assocs., P.A., 906 So. 2d 1205, 1208 (Fla. 4th DCA 2005);

Popular Bank of Fla. v. R.C. Asesores Financierios, C.A., 797 So. 2d 614, 619 (Fla. 3d DCA 2001); Dumor Avionics, Inc. v. Hangar One, Inc., 319 So. 2d 95, 97 (Fla. 3d DCA 1975), we approve the court's resolution of this issue below. 3

We do not understand the appellants to have contended below, or to argue directly here, that Sunbeam's refusal to consent to the condominium constitutes a breach of the duty to exercise good faith in the performance of a contractual provision like the one here requiring mutual consent. See Publix Super Markets, Inc. v. Wilder Corp. of Del., 876 So. 2d 652 (Fla. 2d DCA 2004), review denied, 892 So. 2d 1015 (Fla. 2004); Fernandez v. Vazquez, 397 So. 2d 1171 (Fla. 3d DCA 1981). To the extent that it has not foregone this contention, we could not interfere with any conclusion that no bad faith has been demonstrated. See Berges v. Infinity Ins. Co., 896 So. 2d 665, 680 (Fla. 2004)(bad faith is issue of fact); Quirch v. Coro, 842 So. 2d 184 (Fla. 3d DCA 2003)(same); Cox v. CSX Intermodal, Inc., 732 So. 2d 1092, 1097-98 (Fla. 1st DCA 1999)(same), review denied, 744 So. 2d 453 (Fla. 1999); Fernandez, 397 So. 2d at 1174 (same); Whitman v. Pet Inc., 335 So. 2d 577 (Fla. 3d DCA 1976)(same), cert. dismissed, 348 So. 2d 951 (Fla. 1977). These observations do not preclude a subsequent request for Sunbeam to consent to a Clear Channel request for construction on its part of the "no build zone." Our holding concerning the permitted use of the 7

3

III. Finally, we reject the contention on cross-appeal that See

Sunbeam had established a right to an irrevocable license.

Dance v. Tatum, 629 So. 2d 127 (Fla. 1993); Seaboard Air Line Ry. Co. v. Dorsey, 111 Fla. 22, 149 So. 759 (1932); Albrecht v. Drake Lumber Co., 67 Fla. 310, 65 So. 98 (1914), receded from on other grounds by Dance v. Tatum, 629 So. 2d 127 (Fla. 1993); Brevard County v. Blasky, 875 So. 2d 6 (Fla. 5th DCA 2004), review denied, 889 So. 2d 71 (Fla. 2004). Affirmed in part, reversed in part. COPE, C.J., concurs.

property may or may not be pertinent to the reasonableness of such a request or the arbitrariness of its possible refusal. 8

Clear Channel v. Sunbeam TV Corp. Case Nos. 3D04-1834; 04-1750; 04-2476

GREEN, J. (dissenting in part, concurring in part). Although it professes not to, I believe that the majority opinion has in fact wrongfully rewritten the parties' agreement by finding that paragraph 4 does not provide a use restriction on the property. the opinion. Paragraph 4 of the 1962 agreement prohibits any restriction on the use of the property unless "reasonably necessary to the continued proper use of said facilities for their present Accordingly, I dissent from that section of

purposes[.]" (Emphasis added).

This restrictive covenant, as

are all restrictive covenants, is clothed with a presumption of validity. DCA See Cottrell v. Miskove, 605 So. 2d 572, 573 (Fla. 2d are clothed with a very strong

1992)("Restrictions

presumption of validity because each property owner has adequate notice of the restrictions and purchases his property knowing of, accepting, should and not relying be upon them."). unless or As they such, are of these

covenants ambiguous, policy or

invalidated

clearly public

arbitrary, a

unreasonable,

violative right.

fundamental

constitutional

Constellation

Condo. Ass'n, Inc. v. Harrington, 467 So. 2d 378, 379 (Fla. 2d DCA 1985). are Moreover, where, as here, the terms of the covenant courts will, and should, enforce the

unambiguous,

9

restriction according to the intent of the parties as expressed by the ordinary meaning of its terms. Norwood-Norland

Homeowners' Assn, Inc. v. Dade County, 511 So. 2d 1009, 1014 (Fla. 3d DCA 1987). In this case, it is uncontroverted that prior to the 1962 agreement, the property in question was solely owned by Biscayne Television Corporation ("Biscayne"), which operated both a

television and radio station on the property.

In 1962, the

Federal Communications Commission took the television station license from Biscayne and gave it to Sunbeam. an affiliate of Biscayne and Clear Cox Broadcasting, predecessor,

Channel's

assumed ownership of the radio station and its portion of the property. By virtue of the 1962 agreement, Sunbeam bought the

television station building and the real estate on which it was situated. The opening of the agreement provides:

WHEREAS, because of the location of the various buildings, driveways, antennas and other facilities composing said Radio Station and Television Station upon said property, it is essential that the parties reach an agreement as to the joint use, operation and maintenance of said real property and the improvements and facilities located thereon. (Emphasis added). Historically, and by the agreement's own

terms, in 1962, the purpose of the property was clearly to run and house both a radio station and a television station.

10

Therefore, the present purpose referred to in paragraph 4 could clearly be nothing other than the running and housing of both a television station and a radio station. Accordingly, I believe that pursuant to the expressed

intent of the parties to the 1962 agreement, we must affirm the trial court's determination that paragraph 4 restricts the use of the property to "broadcast purposes" only. To do otherwise

is to impermissibly do that which the majority accuses the trial court of erroneously doing: varying the terms of the written agreement to achieve its desired result. As the case law cited

by the majority illustrates, rewriting the parties' agreement is violative of Florida caselaw. I, therefore, respectfully dissent to that portion of the majority's opinion.

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