Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MARK CAPALLO and JACQUELYN CAPALLO, Appellants, v. DAWN FULMER RIVERA and ARMANDO P. RIVERA, as cotrustees of the Rivera Family Revocable Trust, Appellees. No. 2D22-1028 June 30, 2023 Appeal from the Circuit Court for Sarasota County; Maria Ruhl, Judge. John N. Bogdanoff of The Carlyle Appellate Law Firm, Orlando, for Appellants. Bryan S. Kessler of Berg & Kessler, Venice, for Appellees. SLEET, Judge. Dawn and Armando Rivera, as cotrustees of the Rivera Family Revocable Family Trust, brought an action against Mark and Jaquelyn Capallo for trespass, injunction, and declaratory judgment stemming from the Capallos' use of a dock built on a parcel of land owned by the Riveras. The Capallos, who own an adjacent parcel, then filed counterclaims for declaratory judgment and injunctive relief, maintaining that an easement on the Riveras' property gives the Capallos the right to use the dock. The trial court entered final judgment in favor of the Riveras on all claims, and the Capallos now challenge that final judgment. We affirm. Raymond and Arlene Grashoff owned a plot of land on Manasota Key, Sarasota County, that stretches from the Gulf of Mexico on the west end to Lemon Bay on the east end and is traversed by a county road. In 1974, the Grashoffs divided the property into parcels A, B, C, and D. Parcel A, the westerly-most parcel, is bordered by the Gulf of Mexico on one end and by the county road on the other. Parcel B is located across the county road from parcel A and is bordered by parcel C to the east. Parcel D sits between parcel C and Lemon Bay. Only parcel C touches a water basin that cuts into the key from Lemon Bay. Upon dividing the property, the Grashoffs retained parcels A, C, and D and transferred parcel B by warranty deed.1 The 1974 deed language granted to all parcel owners an access easement across parcels B and C and a walkway easement across parcel A from the westerly border of the county road "to the waters of the Gulf of Mexico." The deed language creating the access easement reads as follows: Together with a non-exclusive [sic] access easement, 12 ft. in width, extending from the Easterly right-of-way line of the above mentioned county road, East, parallel to, and along the North line of the South 84 ft. of the North 1232.2 ft. of said U.S. Government Lot 5, and along a line parallel to, and 12 ft. from the Southerly shores of an existing basin to a point 460.23 ft. East of the above mentioned point of beginning, subject to an access easement over and across the above described 12 ft. easement reserved to the grantors hereof, 1 The Grashoffs ultimately sold parcel D, but the sales history of parcel D has no impact on this appeal. 2 their heirs and assigns, and to all property owners of land lying within the South 84 ft. of the North 1232.2 ft. of said U.S. Government Lot 5, and Vera Boutelle, her heirs and assigns. (Emphasis added.) In the late 1970s, the Grashoffs moved from their home on parcel A to a home they built on parcel C. In 1980, they constructed on parcel C a dock that wharfed out into the basin. Thereafter, the Grashoffs sold parcel C to individuals who then sold it to the Riveras in 2019. In 2017, the Capallos purchased parcel B. Both the Riveras' deed and the Capallos' deed include the access easement and walkway easement language from the 1974 deed. Shortly after the Riveras purchased parcel C, they became aware that the Capallos were accessing the dock. The Riveras installed a gate with locks across the entrance to the dock, allowed shrubbery to grow and obstruct access to the dock, and directed the Capallos to stop using the dock. But despite several notices, the Capallos continued to use the dock. The Riveras therefore filed an action against the Capallos for trespass, injunction, and declaratory judgment. In their complaint, the Riveras allege that the dock at issue is "wholly within the confines" of their property (parcel C) as "particularly described in the [1974] [d]eed" and that thus they "are entitled to exclusive title, possession, and control" of the dock. The Capallos filed an answer and affirmative defenses along with counterclaims for declaratory judgment and permanent injunction.2 In their counterclaims, they alleged that pursuant to the deed language, "[t]he dock is within the access easement" and "the [e]asement provides access for owners on Parcel A and Parcel B to the basin, including the 2 The Capallos also brought counterclaims for conversion and nuisance but later voluntarily dismissed those counts. 3 dock." They further alleged that "it was the intent of the original owner of the Original Parcel to allow the subsequent owners of the parcels which were subdivided from the Original Parcel to each have access to the basin." The Capallos then moved for partial summary judgment, arguing that the undisputed facts were as follows: when the original property was divided, "the deed for Parcel C included an easement for ingress and egress and access"; a survey of the easement reflects that it "include[s] the water and the dock"; and the easement "provides access for owners on Parcel A and Parcel B to the basin including the water and dock." And the Capallos again asserted that it was undisputed that the intent of the original owners was to allow subsequent owners of the subdivided parcels to have access to the basin over parcel C. To their motion they attached a copy of a survey of the easement prepared by a company they retained. That survey indicated that the easement encompassed the basin's mean high water line. This was consistent with a survey that had been prepared for the Riveras in 2019. The Riveras opposed summary judgment, asserting that a disputed issue of material fact remained, namely, the extent and scope of the access that the original owners intended to grant through the easement. The Riveras maintained that the original owners could not have intended in 1974 to grant an easement for access to a dock that was not built until 1980. The Riveras further argued that the deed language did not specify that the easement was meant for boating or docking and that the use of the unmodified word "access" indicated that the easement was meant to give the other parcel owners the "power to use the easement property to go to, and return from their own property, nothing else." 4 The trial court entered an order that denied the Capallos' motion without comment. During pretrial discovery, the parties took the deposition of Mrs. Grashoff, the last living party to the 1974 deed. Mrs. Grashoff testified that the access easement was created "in order to get to Lots . . . B, C, and D"; that at the time the easement was granted, "there wasn't anything in the basin . . . and the property back there was all a wilderness"; and that from 1980 until they sold parcel C in 1999, the Grashoffs had exclusive use of the dock and did not permit any other parcel owners to access or use the dock. The Capallos then filed a motion in limine, asserting that the 1974 deed language that created the easement was clear and unambiguous and that therefore "any and all parole evidence and testimony offered by [the Riveras'] witness Arlene Grashoff" should be excluded. The trial court denied the motion, concluding that by the allegations in their counterclaims, the Capallos "have acknowledged that the scope and extent of the Access Easement is ambiguous." The court pointed out that although the easement does not mention access to the basin or the dock, the Capallos alleged in their counterclaims that "the [e]asement provides access for owners on Parcel A and Parcel B to the basin including the dock" and that "it was the intent of the original owner of the Original Parcel to allow the subsequent owners of the parcels which were subdivided from the Original Parcel to have access to the basin." The court further stated: The intended extent of the Access Easement is not ascertainable. As a result, this court is duty bound to ascertain and give effect to the intention of the parties at the time the easement was created. See Kotick v. Durrant, 143 Fla. 386, 392 (Fla. 1940); Hillsborough County v. Kortum, 585 So. 2d 1029, 1031 (Fla. 2d DCA 1991). In doing so, "the 5 Court may consider the circumstances surrounding the creation of the easement and the conduct of the parties." Meadows Country Club, Inc. v. Unnever, 702 So. 2d 586, 588- 89 (Fla. 2d DCA 1997). The trial court conducted a three-day nonjury trial on the declaratory judgment claims at which Mrs. Grashoff testified that the purpose of the access easement was for "[i]ngress and egress and–to get in and out of the property because that was actually the–only road where you could get to" parcels C and D. She further testified that access to the basin "wasn't even in the discussion" when they created the easement. Prior to the construction of the dock in 1980, thick mangroves around the basin rendered it difficult to access, and at the time the Grashoffs conveyed parcel B in 1974, "[e]verything was wilderness back there"; "[i]t was palm trees, shrubs." She reiterated that after they built the dock, the Grashoffs used it "exclusively," never allowing anyone else to use it and never treating it as a shared dock with her neighbors. The Capallos, nevertheless, maintained that the basin and the dock were located within the easement and that, therefore, pursuant to the easement they should have unfettered access to both by way of parcel C. They relied on the surveys obtained by both parties, which were introduced at trial. The trial court entered judgment in favor of the Riveras on the declaratory and injunctive claims. The court found that the dock on parcel C is a private dock owned by the Riveras as owners of parcel C and that the access easement does not give the owners of parcels A, B, or D a right to use the dock. The court further found that the evidence unequivocally established that the easement was created to allow ingress and egress between the county road and parcels C and D, which had no 6 other means of accessing the county road. The trial court also found that the intent at the time the access easement was drafted in 1974 could not have been to give the owners of the other parcels access to a dock that was not built until six years later in 1980. On appeal, the Capallos first argue that the trial court erred by ruling that the 1974 deed's easement language was ambiguous and that Mrs. Grashoff's testimony was admissible at trial. We disagree. An easement "is an interest that gives to one other than the owner a right to use the land for some specific purpose." Am. Quick Sign, Inc. v. Reinhardt, 899 So. 2d 461, 464 (Fla. 5th DCA 2005) (citing Sears, Roebuck & Co. v. Franchise Fin. Corp. of Am., 711 So. 2d 1189, 1191 (Fla. 2d DCA 1998)). "When determining whether an easement conveys a particular right, the rules of contract interpretation apply, giving effect to the plain meaning of the terms as stated." Buie v. Bluebird Landing Owner's Ass'n, 172 So. 3d 519, 521 (Fla. 5th DCA 2015). Where the language creating the easement is clear and unambiguous, courts must give effect to the terms as stated without resorting to other rules of construction designed to ascertain meaning. Am. Quick Sign, 899 So. 2d at 465. However, "[w]hen the intended extent of the easement is not ascertainable from the written language alone, the court may consider extrinsic evidence." Meadows Country Club, Inc. v. Unnever, 702 So. 2d 586, 588 (Fla. 2d DCA 1997). In doing so, the goal must be to determine the scope of the easement as intended by the parties at the time the easement was created. Am. Quick Sign, 899 So. 2d at 465 ("If the provisions are ambiguous, extrinsic evidence may be examined to determine the intent of the parties at the time the document establishing the easement was created."); see also Crutchfield v. F.A. Sebring Realty Co., 69 So. 2d 328, 330 (Fla. 1954) ("[T]he legal extent of the right . . . 7 must . . . be ascertained from the intention of the parties at the time when the right was created." (quoting Gale on Easements 324-25 (12th ed.)); Hillsborough County v. Kortum, 585 So. 2d 1029, 1031 (Fla. 2d DCA 1991) ("To determine the scope of the easement, the court must attempt to ascertain the intent of the parties in light of the surrounding circumstances at the time the easement was created."). Our review is de novo. SHM Cape Harbour, LLC v. Realmark META, LLC, 335 So. 3d 754, 759 (Fla. 2d DCA 2022). In the instant case, the language of the 1974 deed that created the easement across parcels B and C focuses on the location of the easement by setting forth its boundaries in detail. The only reference in the deed language to the purpose of the easement is its designation as an "access easement." The Riveras maintain that "access" means that the easement granted to the owners of the other parcels only the right to access their own property from the county road. To support this contention, the Riveras point to the plain language of the description of the easement's boundaries, which identifies part of its northern border as "the Southerly shores of an existing basin." The Riveras assert that this clearly indicates that the easement does not reach the basin but instead ends at its shores. They also rely on the wording of the 1974 deed's walkway easement, which extends "to the waters of the Gulf of Mexico" as proof that the Grashoffs knew how to extend an easement to a body of water if that was their intent. The Capallos, however, maintain that "access" not only means access to the parcels that do not abut the county road but also includes access to the basin. They point to the fact that the deed language does not explicitly state that the easement is meant only for ingress and egress and contains no other restrictions on the scope of the easement. 8 They argue that because part of the dock is located within the easement, they are entitled to use the dock pursuant to the terms of the easement. These competing arguments establish that the word "access" in the easement language is susceptible to two interpretations. It could mean access only between the county road and parcels C and D, or it could additionally provide all four parcel owners entry to the basin–and the dock built out over the basin–by way of parcel C. "Ambiguity may be found when the provisions in the document admit to more than one interpretation." Am. Quick Sign, 899 So. 2d at 465; see also Meadows Country Club, 702 So. 2d at 588 ("The view of this court is that the easement language presents an ambiguity; each opposing theory has a degree of merit and the easement admits of two interpretations."); McInerney v. Klovstad, 935 So. 2d 529, 531 (Fla. 5th DCA 2006) ("Language in a document is ambiguous when its provisions are fairly susceptible to more than one interpretation."). Contrary to the Capallos' assertions, the plain language of the 1974 deed creating the easement does not make clear what the original owners intended by the word "access."3 Accordingly, the trial court was correct in allowing extrinsic 3 We note that throughout the proceedings below and in this court, the Capallos seem to conflate the easement's location with its purpose by arguing that "the dock at issue is within the access easement and thus is shared among the easement holders." While the 1974 deed unambiguously defines the location of the easement, such does not render unambiguous the deed language identifying its purpose as merely "access." Extending the Capallos' reasoning would mean that they could access anything located–or even partially located–within the easement's boundaries. But such is not the law; an easement does not entitle its holder to unfettered use. Rather, an easement is limited only to what it grants. See City of Orlando v. MSD–Mattie, LLC, 895 So. 2d 1127, 1130 (Fla. 5th DCA 2005) ("[T]he scope of an easement is defined by what is granted, not by what is excluded . . . ."); see also Am. Quick Sign, 899 So. 9 evidence, including the testimony of Mrs. Grashoff, to ascertain and give effect to the intention of the parties at the time the access easement was created. See Meadows, 702 So. 2d at 588-89. We also note that we find no merit in the Capallos' argument that Mrs. Grashoff's testimony was inadmissible for lack of personal knowledge. First, we note that this argument was unpreserved as it was not raised below and no contemporaneous hearsay objection was made during Mrs. Grashoff's trial testimony. We acknowledge that in their motion in limine to exclude her testimony, the Capallos stated that "more than one grantor existed for the conveyance at issue and such grantor is deceased which amplifies the issues of admittance, including without limitation hearsay issues." However, such a vague statement is not sufficient to preserve the argument that Mrs. Grashoff had no firsthand knowledge of the underlying property transfer or the creation of the easement at issue. See Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010) ("Proper preservation of error for appellate review generally requires three components. First, the party must make a timely, contemporaneous objection at the time of the alleged error. 'Second, the party must state a legal ground for that objection. Third, "[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below." ' " (citations omitted) (alteration in original) (quoting Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005))). Second, although Mrs. Grashoff testified at trial that it was her husband who primarily dealt with the surveyor regarding dividing the original plot, she also testified that she and her husband "both agreed that we needed an easement to get in and out" and that 2d at 464 (defining "easement" as conveying "a right to use the land for some specific purpose" (emphasis added)). 10 after the surveyor drew up the division plan, she and her husband "went over it carefully with an attorney, and we both agreed that it looked legal to us." Accordingly, the trial court properly considered Mrs. Grashoff's testimony. It was then up to the trial court, as the finder of fact, to weigh the evidence and rule. The trial court found credible Mrs. Grashoff's testimony that her and her husband's intended purpose of the access easement was for the owners of parcels C and D to have ingress and egress between their parcels and the county road. That testimony supports the trial court's findings that the purpose of the easement was not to grant access to the basin for the owners of parcels A, B, and D and that the easement did not grant the Capallos access to either the basin or the Riveras' private dock. As such, there also can be no merit to the Capallos' argument that because the easement granted them access to the basin, they possessed riparian rights to the basin. Where easement language is silent as to riparian rights, the determination of whether such rights are granted is determined by the scope of the easement. Feig v. Graves, 100 So. 2d 192, 195 (Fla. 1958). Based on the trial court's determination that the easement did not grant access to the basin, the Capallos necessarily would not be entitled to riparian rights to the basin. Finally, we address the Capallos' argument that the trial court erroneously relocated the easement. The Capallos point out that despite the fact that both of the parties' surveys indicated that the easement ran through a portion of the basin, the trial court stated the following in its final judgment: The Court finds that the Access Easement should not have continued running through the Basin and instead should have continued running along the southerly shores of the 11 Basin in accordance with the express language of the Access Easement, the drawing of Parcel C included with the permit to construct a boat dock, and the Easement Agreement between [the 1999 purchaser of parcel C] and Mrs. Grashoff. The Capallos maintain that the trial court erred in discounting the parties' surveys, resulting in relocation of the easement. However, just as the Capallos placed the original owners' intent at issue by raising it in their pretrial motions, they also put the location of the easement at issue by maintaining that they were entitled to access to the basin and the dock because they were located within the easement. As such, it was proper for the trial court to make a determination as to the location of the easement. And the evidence of the easement's location included more than just the survey evidence; the court also had before it the 1974 deed that created the easement, the permit documents associated with the construction of the dock in 1980, and sales documents associated with all of the parcels. The trial court found the deed language identifying the location of the easement–which set part of the northern boundary of the easement at "the Southerly shores of an existing basin"–to be "express" and thus rejected the survey evidence that indicated that the easement ran to the mean water line of the basin. This was well within its purview, and we cannot disturb the trial court's factual findings on appeal so long as they are supported by competent substantial evidence. See Condron v. Arey, 165 So. 3d 51, 55 (Fla. 5th DCA 2015). Contrary to the Capallos' argument, the trial court did not "relocate" the easement; it merely confirmed its location as spelled out in the 1974 deed.4 4 We find no merit in the Capallos' remaining arguments on appeal. 12 For the reasons discussed, we affirm the trial court's final judgment. Affirmed. MORRIS, C.J., and LABRIT, J., Concur. Opinion subject to revision prior to official publication. 13