Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CRESCENT SHORE CONDOMINIUM ASSOCIATION, INC. Appellant, v. LANI KAI, L.P., Appellee. No. 2D21-234 November 10, 2021 Appeal from the County Court for Lee County; Maria E. Gonzalez, Judge. Ehren J. Frey, Fort Myers, and Jamie B. Schwinghamer, Naples, of Roetzell & Andress, LPA, Naples, for Appellant. Robert B. Burandt of Burandt, Adamski, Feichthaler & Sanchez, PLLC, Cape Coral, for Appellee. VILLANTI, Judge. I. Crescent Shore Condominium Association appeals the final summary judgment entered in favor of Lani Kai, L.P., based upon the trial court's conclusion that Crescent Shore's claims for injunctive relief and declaratory judgment were barred by res judicata. Because the trial court did not have a valid basis to make a finding of res judicata in this case, we reverse. We also decline discussion of the remaining procedural issues raised by Crescent Shore in this appeal because they are immaterial to our holding. Crescent Shore is an incorporated group of owners of the Crescent Shore condominiums in Fort Myers. Lani Kai owns property adjacent to the Crescent Shore condominiums in which it operates a restaurant and bar. In 1979, the parties executed a cross-easement agreement wherein Lani Kai was granted a three- foot access easement onto Crescent Shore's property; in return, Crescent Shore received an area to be used for parking on Lani Kai's property. In 2000, Crescent Shore filed a two-count lawsuit for injunctive and declaratory relief against Lani Kai in the circuit court of Lee County, alleging that Lani Kai was storing trash bins and 2 dumpsters on the easement property, causing rodents and unpleasant odors to infiltrate its property.1 Crescent Shore alleged that Lani Kai's actions were a breach of the easement agreement and requested injunctive relief in the form of a prohibition against Lani Kai placing dumpsters and trash bins in the easement area. Crescent Shore also requested the trial court render a declaratory judgment regarding Lani Kai's obligations under the easement agreement at that time. The parties reportedly2 settled the matter and the 2000 lawsuit was dismissed with prejudice. Neither party presently has a copy of the executed settlement agreement, nor was one ever filed in the 2000 case. Nor are the parties aware of any specific terms of the purported settlement agreement. In 2018, Crescent Shore again filed a lawsuit against Lani Kai for failing to adhere to the terms of the easement agreement, this time in the county court of Lee County. Crescent Shore again 1 Crescent Shore's 2000 lawsuit against Lani Kai did not include a count for public nuisance. 2 This averment is based upon the allegations of both parties' present counsel, neither of whom were involved in the 2000 litigation. The parties' current counsel have also expressed the possibility that the terms of the 2000 settlement agreement were never even reduced to writing. 3 requested injunctive relief along with a declaratory judgment. Crescent Shore's 2018 amended complaint alleged that Lani Kai is obligated to landscape the easement area pursuant to the easement agreement and failed to do so. The amended complaint did not reference any improper storage of trash bins or dumpsters on the easement. Lani Kai filed a motion for summary judgment on April 9, 2020, alleging that the matter was litigated eighteen years prior, resulting in a dismissal with prejudice and that therefore, Crescent Shore was estopped from its 2018 lawsuit. The motion was verified by Lani Kai's owner, Robert Conidaris. Attached as exhibits to its motion were the 2000 lawsuit complaint, the 1979 easement agreement, presuit correspondence from 2017 and 2018 from Crescent Shore's counsel to Lani Kai's counsel regarding the breach of the easement agreement, a hand-drawn diagram of the parties' property lines, and the civil cover sheet and order of dismissal from the 2000 lawsuit. The purported 2000 settlement agreement was not attached as an exhibit. A few days later, Lani Kai supplemented the motion with an affidavit from Ken Conidaris and two unverified photographs of the easement area in question. Lani Kai also 4 requested that the trial court take judicial notice of the court's record from the 2000 litigation. Crescent Shore subsequently filed its response and its own supporting affidavit from its president, Denny Loken, along with accompanying photographs. Crescent Shore argued in its response that res judicata did not apply under these circumstances because Lani Kai's actions constituted new violations of the 1979 easement agreement. Following a hearing, the trial court granted summary judgment in Lani Kai's favor. The order did not contain specific findings or reference any specific terms of the purported settlement agreement. II. The trial court granted summary judgment in favor of Lani Kai based upon the principle of res judicata—the procedural bar that prohibits the relitigation of issues that were or should have been raised in a prior lawsuit. See Topps v. State, 865 So. 2d 1253, 1255 (Fla. 2004) ("The doctrine of res judicata bars relitigation in a subsequent cause of action not only of claims raised, but also claims that could have been raised."); Neapolitan Enters. LLC v. City of Naples, 185 So. 3d 585, 591 (Fla. 2d DCA 2016) (same). Whether 5 a claim for relief is barred by res judicata is subject to de novo review. See U.S. Bank Nat'l Ass'n v. Amaya, 254 So. 3d 579, 581 (Fla. 3d DCA 2018); see also Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) ("The standard of review governing a trial court's ruling on a motion for summary judgment posing a pure question of law is de novo."). "Res judicata bars a subsequent lawsuit when there is: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the quality in the person for or against whom the claim is made." AMEC Civ., LLC v. State, Dep't of Transp., 41 So. 3d 235, 239–40 (Fla. 1st DCA 2010). "The general test when 'deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.' " U.S. Project Mgmt., Inc. v. Parc Royale E. Dev., Inc., 861 So. 2d 74, 76 (Fla. 4th DCA 2003) (quoting Hittel v. Rosenhagen, 492 So. 2d 1086, 1090 (Fla. 4th DCA 1986)). "Identity of causes of action 'means an identity of the facts essential to the maintenance of the action.' " M.C.G. v. Hillsborough Cnty. Sch. Bd., 927 So. 2d 224, 227 (Fla. 2d DCA 2006) (quoting City of Miami Beach v. Prevatt, 97 So. 2d 473, 477 (Fla. 1957)). However, res 6 judicata does not bar claims of subsequent breach arising from the same contract. See, e.g., Albrecht v. State, 444 So. 2d 8, 12 (Fla. 1984), superseded by statute on other grounds; U.S. Project Mgmt., 861 So. 2d at 77; Parker v. State Bd. of Educ. ex rel. Fla. State Univ., 865 So. 2d 559, 560 (Fla. 1st DCA 2003). Here, it is undisputed that three of the four elements required for res judicata to apply—identity of the thing sued for, identity of the parties, and identity of the quality of the person or thing sued for, i.e., their same capacities under the agreement—are present. The fourth element, identity of the cause of action, is missing. At the hearing on Lani Kai's motion for summary judgment, Lani Kai's counsel argued to the trial court that Crescent Shore had the "same complaint. Same parties. Same request." On appeal, Lani Kai repeats the following argument: "There can be no new violation based on the same allegations." Lani Kai also argues that because the 2000 lawsuit was dismissed, Lani Kai's "obligation to landscape the demised premises was . . . abrogated by the [d]ismissal with prejudice." The "same complaint" Lani Kai refers to is Crescent Shore's 2018 demand that Lani Kai landscape the easement area, but to 7 call that "the same" complaint is not accurate. The 2000 complaint alleged that Lani Kai had placed a large commercial dumpster and numerous trash bins on the easement, leading to rodent and pest infestation and noxious odors. In the 2000 complaint, Crescent Shore cited a provision of the easement agreement that required Lani Kai to "landscape" and "beautify" the area in question, but that is because the same provision barred Lani Kai from storing trash dumpsters on the easement. To establish as true the allegations in the 2018 complaint, Crescent Shore was required to prove facts different than those required to substantiate the allegations in its 2000 complaint. In addition to there being different precipitating events prompting Crescent Shore to seek relief under the easement agreement, there is also an entirely different time period at issue between the 2000 and 2018 complaints. As this court explained in M.C.G., 927 So. 2d at 227, "[t]he doctrine of res judicata—which requires that the second suit present the identical cause of action as was previously litigated—is not applicable where the claims in the two cases concern different periods of time." Cf. Forero v. Green Tree Servicing, LLC, 223 So. 3d 440, 443 (Fla. 1st DCA 8 2017) ("In this case the subsequent and separate alleged default created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action." (quoting Singleton v. Greymar Assoc., 882 So. 2d 1004, 1008 (Fla. 2004))). Both of those factors prohibit the conclusion that res judicata applies here because "[i]dentity of causes of action 'means an identity of the facts essential to the maintenance of the action.' " M.C.G., 927 So. 2d at 227 (quoting City of Miami Beach, 97 So. 2d at 477). The facts that were essential to maintain Crescent Shore's 2018 lawsuit differed than the facts necessary to maintain its 2000 lawsuit. On appeal, Lani Kai contends, as it did below, that the missing settlement agreement prohibits Crescent Shore from asserting any further claims regarding the easement. But neither party alleges what the essential terms of the settlement agreement were. The lack of evidence of the settlement agreement presents a problem. Clearly, if neither party is aware of the essential terms of an 9 agreement, it is inferential that the same settlement agreement may not be enforced.3 Summary judgment in this case was inappropriate because of the existence of genuine issues of material facts, i.e., the rights and obligations of Crescent Shore and Lani Kai, which the parties hotly disputed. See Howell v. Pasco County, 165 So. 3d 12, 14 (Fla. 2d DCA 2015) ("A material fact, for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case." (quoting Cont'l Concrete, Inc. v. Lakes at La Paz III Ltd. P'ship, 758 So. 2d 1214,1217 (Fla. 4th DCA 2000))). III. Crescent Shore's 2018 claim against Lani Kai for failing to adhere to the easement agreement was based on a separate, new 3 Further, because "[a]n easement constitutes an interest in land [and] is subject to the statute of frauds," Lodestar Tower N. Palm Beach, Inc. v. Palm Beach Television Broad., Inc., 665 So. 2d 368, 370 (Fla. 4th DCA 1996); cf. Haight v. Hall, 625 So. 2d 1311 (Fla. 3d DCA 1993) (holding that a document purporting to grant an easement was invalid for failure to comply with statutory requirements for witnesses), it follows that an easement cannot be modified or extinguished by a subsequent agreement that does not comply with the statute of frauds. See 72 Am. Jur. 2d Statute of Frauds § 90 (2021). 10 violation of the easement agreement than its 2000 claim and is therefore not barred by res judicata. Accordingly, we reverse the final summary judgment entered below and remand for further proceedings consistent with this opinion. Reversed and remanded. LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur. Opinion subject to revision prior to official publication. 11