Seaside Town Council, Inc. v. Seaside Community Development Corp. and Walton County, Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-755 _____________________________ SEASIDE TOWN COUNCIL, INC., Appellant/Cross-Appellee, v. SEASIDE COMMUNITY DEVELOPMENT CORP. and WALTON COUNTY, FLORIDA, Appellees/Cross-Appellants. _____________________________ On appeal from the Circuit Court for Walton County. David W. Green, Judge. December 29, 2021 BILBREY, J. Appellant, Seaside Town Council, Inc. (STC or Town Council) appeals the final summary judgment in which the trial court found that STC lacks standing to pursue its claims for declaratory and injunctive relief against Seaside Community Development Corp. (SCDC) and Walton County. SCDC cross-appeals the subsequent order denying SCDC’s claim for attorneys’ fees. We hold that STC has standing under the 1991 amended declarations and under the 2011 assignments, reverse the final summary judgment, affirm the order denying attorneys’ fees, and remand for further proceedings as explained below.  Background Seaside is a beach-front development of regional impact on County Road 30A in Walton County. Although Seaside’s sun- drenched homes, shops, and restaurants may appear to be part of a well-governed and well-funded municipality, the 80-acre new urbanism development is in fact unincorporated. SCDC was the developer of Seaside and in the 1980s recorded declarations for nine neighborhood associations. See § 720.301(4), Fla. Stat. (2011). The declarations contain covenants, conditions, and restrictions. Although the neighborhood associations were created on different dates, the declarations have identical language on enforcement of violations. In the declarations, the nine neighborhood associations were granted “the right to enforce, by any proceedings at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration.” In turn, in 1991 the nine neighborhood associations in Seaside amended their declarations to form STC, which despite its name is not the town council of a Florida municipality but a Florida not for profit corporation. In creating STC, the neighborhood associations directed that STC would “[a]ssume management of the administration and operations of the Association.” Relevant to SCDC’s arguments here and below, the amended declarations also provided: Section 6. Enforcement. The Town Council shall have the right to demand and enforce payment of all Assessments due and payable to the Association, to give receipts and releases for and in respect of the same and from time to time to institute, prosecute, defend or compromise any and all proceedings at law, in equity or otherwise which the Town Council may deem necessary, convenient, proper or desirable in order to collect, assert or enforce such Assessments, including foreclosure of the lien provided under . . . this Declaration. In 2011, STC sued SCDC and Walton County for declaratory and injunctive relief. STC amended its complaint twice. In the 2 second amended complaint, STC alleged that the Seaside Code was the zoning and land development regulation for Seaside and that the Seaside Code specified the building types and sizes, design guidelines, public spaces, and uses for Seaside. STC also alleged that the Seaside Code had been recorded in the Seaside Statement and Seaside Declarations, amounting to enforceable covenants, conditions, and restrictions. STC further alleged that it had standing to bring the action under the amended 1991 declarations, as a homeowners’ association under chapter 720, Florida Statutes, as an association on behalf of its members, and in its own interest. STC did not mention the 2011 assignment, discussed below, in the allegations in the second amended complaint concerning standing. In count 1 of the second amended complaint, STC alleged that SCDC had unilaterally recorded changes to the Seaside Code without the consent of the various property owners at Seaside or STC. In count 2, STC alleged that SCDC had acted to unilaterally operate the Architectural Review Committee in violation of the Seaside Code, Seaside Statement, and Seaside Declarations. In count 3, STC requested a declaration that the public buildings and spaces in Seaside were reserved for limited public use or as common areas for the owners. Counts 4, 5, and 6 had been previously dismissed and were realleged for preservation purposes. This court then affirmed the dismissal with prejudice as to those counts, and they are no longer at issue. See Seaside Town Council, Inc. v. Seaside Cmty. Dev. Corp., 166 So. 3d 775 (Fla. 1st DCA 2015). In count 7, STC sued only Walton County claiming that its land development regulations violate due process. SCDC answered and then filed an amended answer to the second amended complaint which raised a fifth affirmative defense as follows: STC lacks standing to pursue these claims to the extent that 1) STC is not a party to the Nine Declarations, 2) STC seeks to obtain rights that are greater than those rights conferred and established by the Nine Declarations, 3) STC is not a party to any transaction, and 4) STC does not own any property in Seaside. 3  In June 2018, SCDC moved for summary judgment. The gist of SCDC’s motion was that STC lacked standing to sue under chapter 720, Florida Statutes, because it is not authorized to represent the nine neighborhood associations, it is not an association, and even if it were an association it failed to comply with the requirements of chapter 720 to file the action. Further, as an alternative, SCDC argued that chapter 720 did not apply to commercial parcels in the community consisting of the Town Center and the Lyceum and that the declarations governing Seaside were not subject to the prohibition of certain clauses in association documents as contained in section 720.3075 because the declarations predated the statute by decades. Finally, SCDC argued that STC’s authority is limited to the provisions of the declarations of each of the nine associations it purportedly represents, and STC has no power to act beyond the provisions as adopted by each of those associations. SCDC’s motion did not address count 7, directed solely to Walton County, and Walton County did not move for summary judgment. 1 STC submitted its corporate representative’s affidavit in opposition to SCDC’s motion for summary judgment. The uncontested affidavit stated: The nine Associations who are members of STC voted in 2011 to have STC file this lawsuit on their behalf to protect the Associations’ real property and legal rights under their respective Declarations of Covenants, Conditions and Restrictions . . . and to assign STC the right to otherwise prosecute this lawsuit on their behalf. As part of such authorization and assignment of rights, the Associations approved the assessments and budgets 1 Since we hold, as explained below, that STC has standing to sue, we do not address whether the granting of summary judgment to a non-moving party was error. See, e.g., Casa Inv. Co., Inc. v. Nestor, 8 So. 3d 1219, 1222 (Fla. 3d DCA 2009) (holding that noncompliance with rule 1.510, Florida Rules of Civil Procedure, caused a due process violation). Perhaps STC’s standing to sue Walton County differs from its standing to sue SCDC, but that issue is not before us. 4  necessary to fund STC’s prosecution of this case in the 2011-2012 fiscal year and they have continued to fund such prosecution in each fiscal year since then. The Associations’ authorization of STC to represent and prosecute the Associations’ rights and interests by bringing this case supplemented, and was in addition to, the Associations’ original assignment of their rights and responsibilities to STC in 1991. A hearing was held on the motion for summary judgment. At the hearing, SCDC moved to strike the affidavit arguing that it contained legal opinions. 2 The trial court ruled that it would receive the affidavit but disregard any legal conclusions. 3 In October 2018, the trial court granted SCDC’s motion for summary judgment, found STC lacked standing, and dismissed the entire action. The trial court’s order analyzed the 1991 amended declarations but did not discuss the other claimed grounds for standing. STC then moved for rehearing, and SCDC moved to assess attorneys’ fees under section 720.305(1), Florida Statutes. The trial court heard those motions and then denied rehearing and SCDC’s attorneys’ fees. STC appeals the dismissal which was 2 It should be noted that SCDC did not argue below and does not argue here that STC needed to file a reply to the fifth affirmative defense to assert this basis for standing. See Fla. R. Civ. P. 1.100(a). Even had SCDC made such an argument, it would likely have been without merit given that “[w]hen a defendant files affirmative defenses and the plaintiff does not reply, the affirmative defenses are deemed denied and therefore false.” Roman v. Bogle, 113 So. 3d 1011, 1014 (Fla. 5th DCA 2013) (citations omitted). 3 We are unsure whether the trial court considered the testimony in the affidavit about the 2011 vote. Such testimony does not require an expert opinion. See § 90.702, Fla. Stat. (2018) (stating that an expert opinion is one involving “scientific, technical, or other specialized knowledge”). 5 based on its lack of standing and SCDC cross-appeals the denial of its motion for attorneys’ fees. 4 Analysis We apply a de novo standard of review to a grant of summary judgment. Maronda Homes, Inc. of Fla. v. Lakeview Reserve Homeowners Ass’n, Inc., 127 So. 3d 1258, 1268 (Fla. 2013). “A complaint is not required to contain an averment of ‘the capacity of a party to sue . . . the authority of a party to sue . . . in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court.’” Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 252 (Fla. 1st DCA 2012) (quoting Fla. R. Civ. P. 1.120(a)) (alteration in original). Rather, “lack of standing is an affirmative defense.” Id. at 253. Additionally, “whether a party has standing is a pure question of law to be reviewed de novo.” Alachua Cnty. v. Scharps, 855 So. 2d 195, 198 (Fla. 1st DCA 2003). STC is an active Florida nonprofit corporation, so undoubtedly it has capacity to bring an action in court. See § 617.0302(2), Fla. Stat. (2011). Whether a party has standing is a different inquiry and “requires a sufficient interest in the outcome of litigation before the court will consider the matter.” Llano Fin. Grp., LLC v. Yespy, 228 So. 3d 108, 112 (Fla. 4th DCA 2017). “In determining whether a party has standing, the court must determine ‘whether the plaintiff has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation.’” Id. at 111 (quoting Wexler v. Lepore, 878 So. 2d 1276, 1280 (Fla. 4th DCA 2004)); see also Midgard Mgmt., Inc. v. Park Ctr. Med-Suites, LLC, 114 So. 3d 302, 307 (Fla. 3d DCA 2013). Here, STC argues various reasons why it has standing, claiming that the 1991 amended declarations and the 2011 4 STC also appeals the denial of its motion, filed after summary judgment was granted, to add one of the neighborhood associations as a party. Since we are reversing on the standing issue, we do not address that issue. 6 assignment, both from the neighborhood associations, provide standing. STC also claims that it has standing in its own right based on its own business and economic interests, that it has standing as an association under chapter 720, Florida Statutes, and that it has standing in a representational capacity. We address only the 1991 amended declarations and the 2011 assignment. 1991 Amended Declarations As mentioned above, nine neighborhood associations were created with “the right to enforce, by any proceedings at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration.” 5 SCDC contends that in creating STC, the nine neighborhood associations only granted it standing to sue for collection of assessments under Section 6 of the amended declaration quoted above. In holding that STC did not have standing to sue, the trial court agreed with SCDC’s contention and found that STC was only assigned the right to sue on behalf of the neighborhood associations to collect assessments. In support of the trial court’s ruling that STC lacked standing, SCDC argues that the maxim, expressio unius est exclusio alterius—the expression of one thing is the exclusion of the other— applies here. See Shumrak v. Broken Sound Club, Inc., 898 So. 2d 1018, 1020 (Fla. 4th DCA 2005) (explaining the maxim). SCDC’s argument is that by specifically being granted a right to sue for assessments, STC has no right under the 1991 amended declarations to sue for anything else on behalf of the neighborhood associations. But the expressio unius maxim is a rule of construction, and rules of construction are to be used only if there is an ambiguity in a contract. See Advanzeon Solutions, Inc., v. 5 At one time, an association lacked standing to sue for violations of restrictive covenants. See Palm Point Prop. Owners’ Ass’n of Charlotte Cnty., Inc. v. Pisarski, 626 So. 2d 195, 197 (Fla. 1993). However, Palm Point was abrogated by statutory changes in chapter 95-274, § 55, Laws of Florida (1995), codified in section 720.305(1), Florida Statutes (2011). 7 State ex rel. Fla. Dep’t of Fin. Servs., 321 So.3d 911, 915 (Fla. 1st DCA 2021) (“[T]he first rule of contract interpretation: courts do not construe a contract that is ‘clear, complete, and unambiguous.’”) (citations omitted). “The cardinal rule of contractual construction is that when language of the contract is clear and unambiguous, the contract must be interpreted and enforced in accordance with its plain meaning.” Columbia Bank v. Columbia Devs., LLC, 127 So. 3d 670, 673 (Fla. 1st DCA 2013). We do not think the 1991 amended declarations were ambiguous and hold that the specific grant to STC of a right to sue for assessments was not a limitation of its rights and obligations to manage and operate the neighborhood associations, including the right to sue on their behalf. “All contractual rights are assignable unless the contract prohibits assignment, the contract involves obligations of a personal nature, or public policy dictates against assignment.” One Call Prop. Servs., Inc. v. Sec. First Ins. Co., 165 So. 3d 749, 752 (Fla. 4th DCA 2015) (quoting Kohl v. Blue Cross & Blue Shield of Fla., Inc., 988 So. 2d 654, 658 (Fla. 4th DCA 2008)). No such prohibition on assignment is present here. Furthermore, “it is the general rule that no particular words of art are necessary to effect” an assignment. Asphalt Paving, Inc. v. Ulery, 149 So. 2d 370, 375 (Fla. 1st DCA 1963). “The assignment or endorsement of any instrument vests the assignee or endorsee with the same rights, powers, and capacities as were possessed by the assignor or endorser. The assignee or endorsee may bring action thereon.” § 68.06, Fla. Stat. (2011). In 1991, the neighborhood associations each agreed that STC was to “[a]ssume management of the administration and operations of the Association.” “Management” is synonymous with “control, direction, governance, government, guidance, [and] handling,” among other words. Management, Meriam-Webster Online Dictionary, https://www.merriam- webster.com/dictionary/management#synonyms (last visited Dec. 3, 2021). “Administration” is defined, among other things, as “the performance of executive duties.” Administration, Meriam- Webster Online Dictionary, https://www.merriam- webster.com/dictionary/administration (last visited Dec. 3, 2021). 8 As mentioned, the operations of the neighborhood associations included the “right to enforce, by any proceeding at law or in equity, all restrictions, conditions, [and] covenants.” 6 “In its broadest sense, standing is no more than having, or representing one who has, ‘a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.’” Kumar Corp. v. Nopal Lines, Ltd., 462 So. 2d 1178, 1182 (Fla. 3d DCA 1985) (quoting Sierra Club v. Morton, 405 U.S. 727, 731 (1972)). Here, as provided by the 1991 amended declarations, STC represents the neighborhood associations in asserting their rights to sue under the original declarations. Therefore, STC has standing to bring its claims in the second amended complaint against SCDC and Walton County. 2011 Assignment In addition to the 1991 amended declarations, we hold that STC has standing to sue under 2011 assignment. STC submitted an affidavit of its corporate representative attesting that prior to suing, the nine neighborhood associations voted to have STC file suit on their behalf. SCDC filed nothing contesting the affidavit; instead SCDC argued that STC did not claim standing based on the 2011 assignment until after SCDC moved for summary judgment. But STC did not have to plead standing in the second amended complaint and was permitted to submit evidence in opposition to SCDC’s motion for summary judgment. See Reeves, 92 So. 3d at 252; Fla. R. Civ. P. 1.120(a) & 1.510(c). Furthermore, although there was no written assignment following the neighborhood associations’ vote, an assignment can be oral. Mangum v. Susser, 764 So. 2d 653, 655 (Fla. 1st DCA 2000). “The right of an assignee to sue for breach of contract to enforce assigned rights predates the Florida Constitution.” Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 753 So. 2d 55, 57 (Fla. 2000) (citing Robinson v. Nix, 22 Fla. 321 (1886)). The 6 It is also worth noting that a property manager has standing to sue on behalf of the entity it represents. Midgard Mgmt., 114 So. 3d at 307. 9 neighborhood associations had a right to assign any claims they had against SCDC under their declarations and did so again with the 2011 vote granting STC the right to sue. The Dissent Our dissenting colleague details a ground to affirm the grant of summary judgment based on lack of justiciable controversy between the parties. But SCDC did not move for summary judgment on this basis, so we do not address that issue. See Sousa v. Zuni Transp., Inc., 286 So. 3d 820, 822 (Fla. 3d DCA 2019) (holding that the tipsy coachman doctrine does not permit affirmance of a grant of summary judgment based on issues not raised in the motion); Frederick v. Dolgencorp, LLC, 304 So. 3d 36, 39 (Fla.2d DCA 2020) (same). 7 7 The dissenting opinion argues to the contrary in a long footnote. But the cases the dissent cites do not approve a tipsy coachman affirmance based on matters not argued in a motion for summary judgment. In Dade County School Board v. Radio Station WQBA the Florida Supreme Court reversed, rather than upheld, the Third District Court’s tipsy coachman affirmance. 731 So. 3d 638, 645–46 (Fla. 1999). The Third District’s tipsy coachman affirmance had been based on matters argued before the trial court following a jury trial. Id. at 644. In Destin Pointe Owners’ Association, Inc. v. Destin Parcel 160, LLC, we urged trial courts to provide more detail in issuing rulings on motions for summary judgment to facilitate our appellate review. 276 So. 3d 490, 491 (Fla. 1st DCA 2019). We reminded trial courts of the tipsy coachman doctrine in stating that “even if the findings in the summary judgment orders are incorrect,” the orders would be affirmed if they had record support. Id. at 491 n.2. This was premised on a trial court ruling on a motion for summary judgment brought by a party. Otherwise, there would be no reason a trial court would be issuing a ruling. An appellate court is ‘not at liberty to address issues that were not raised by the parties.’” Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc) (quoting Anheuser-Busch Co., Inc., v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013)). “Nor may an appellate court ‘depart from its dispassionate role and become an 10  SCDC’s motion for summary judgment mentions the non- commercial properties — the Town Center and Lyceum — in arguing that STC lacked standing as an association under chapter 720. See § 720.301(9), Fla. Stat. (2011) (defining “[h]omeowners’ association” or “association”). SCDC sought only partial summary judgment as to STC’s standing to sue regarding the non- commercial properties. This was brought as an alternative to SCDC’s argument that STC lacked standing as a whole under chapter 720. As discussed above, we do not predicate reversal on STC having standing under chapter 720 as it claimed, since it does have standing under the 1991 amended declarations and the 2011 assignment. Thus, SCDC’s alternative argument that partial summary judgment should be granted as to the commercial properties is immaterial to our holding here. Whether there is a justiciable issue between SCDC and STC so that a declaratory judgment can and should be granted remains a potential question for another day. Attorneys’ Fees Cross-Appeal SCDC cross-appeals the order denying its motion for attorneys’ fees. Entitlement to attorneys’ fees under a rule or statute is reviewed de novo. Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015). SCDC sought fees based on section 720.305(1), Florida Statutes (2011), which provides for the prevailing party to be awarded fees in certain litigation involving homeowners’ associations. SCDC argued that STC’s claim that it was an association under chapter 720 triggered the prevailing party fee provision in section 720.305(1). Since we are reversing for further proceedings, there is no prevailing party at this time. Accordingly, we affirm the decision to deny fees to SCDC at this point in the advocate by second guessing counsel and advancing for him [or her] theories and defenses which counsel either intentionally or unintentionally has chosen not to mention.’” Rosier, 276 So. 3d at 406 (quoting Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983) (on motion for rehearing)). 11 litigation without opining on whether the trial court was correct in deciding that the prevailing party fee provision in section 720.305(1) did not apply. Conclusion Based on the above, we hold that STC did have standing, reverse the final summary judgment, and remand for further proceedings. Since we are remanding for further proceedings, we affirm the denial of attorneys’ fees at this point in the litigation without considering the trial court’s rationale. AFFIRMED in part, and REVERSED in part, and REMANDED. WINOKUR, J., concurs; TANENBAUM, J., dissents with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ TANENBAUM, J., dissenting. As Jim Carrey’s character learned in the 1998 movie The Truman Show, the town of Seaside (where the flick was filmed 1) is, despite its quaint artificiality, not what it seems. For one thing, it is not a “town” at all, but a community of unincorporated landowners governed by an elaborate and overlapping morass of covenants and restrictions that give the place its character. For another, Seaside Town Council, Inc. (“STC”)—the appellant in this matter—is not actually a “town council.” Rather, STC is a not-for- profit corporation, and Seaside’s nine neighborhood associations have delegated to it certain of their administrative powers and obligations concerning the respective residential areas that they control. Finally, the Seaside Code—the ostensible basis for STC’s 1 The Truman Show, MOVIE LOCATIONS, https://www.movie- locations.com/movies/t/Truman-Show.php. 12 suit—is no municipal “code.” Instead, it is made up of precatory descriptions and various design pictures and guidelines more redolent of a sales brochure than of a legal instrument. For me, whether these associations sufficiently delegated authority to STC to bring suit on their behalf is beside the point. The bigger question is whether there is any concrete legal connection between the neighborhoods and Seaside Community Development Corporation (“SCDC”) that gives rise to the rights STC seeks to enforce. There clearly is not. STC zeroed its declaratory judgment action in on SCDC’s development in two areas not governed by any of the neighborhood associations or STC—the very nonresidential Town Center and Lyceum. These two areas, it turns out, are governed by their own separate declarations, both of which grant final authority to SCDC to authorize development and to decide permitted uses on the land that it owns and controls. The problem in this case, then, is the absence of any putative right arising from a contractual connection between STC or any of the residential associations, on the one hand; and SCDC, on the other. There may be a real controversy between these parties—indeed, they have been at it for years—but there is nothing justiciable about that controversy. I would affirm dismissal of the operative complaint against SCDC. I. Seaside’s residential neighborhoods originally had just been governed by nine separate homeowner associations, each representing its own neighborhood within the larger community. Each neighborhood was subject to its own declaration of covenants and restrictions, which incorporated by reference the restrictions contained in the Seaside Code. A neighborhood’s association enforced those covenants and restrictions (including the Code) only within its own neighborhood. 2 Later, those associations created 2 Cf. § 720.301(4), Fla. Stat. (defining a “declaration” as “a recorded written instrument or instruments in the nature of covenants running with the land which subject the land comprising the community to the jurisdiction and control of an 13 STC and amended their respective declarations to give STC the authority to “administer the respective declarations of covenants, conditions and restrictions” of the various neighborhoods, to handle “the administration and operations” of each association, and to manage “the improvement, maintenance, operation, repair and replacement of” each neighborhood’s common area. By the very nature of its creation, STC’s authority to enforce covenants and restrictions does not extend beyond the nine neighborhoods. Meanwhile, there is more to Seaside than just the nine residential neighborhoods. It also includes non-residential areas like Town Center and Lyceum, neither of which is within the boundaries of those nine neighborhoods or is expressly subject to their respective declarations. 3 Both areas remain under the ownership and control of SCDC, and these unplatted areas are governed by a pair of declarations executed and recorded by SCDC in 1994 and 1998, respectively. Both declarations identify SCDC and its future grantees as owners of the property within those areas; as to those two areas, the declarations give SCDC sole authority to amend the respective declarations, convey parcels to purchasers, and create easements and restrictions for its own benefit and for the benefit of future owners of parcels conveyed by SCDC. SCDC indubitably maintains ultimate control of how development proceeds within Town Center and Lyceum. To be sure, the declarations subject development within those two areas to the guidelines of the Seaside Code (just as the neighborhoods’ declarations subjected their respective areas to its design restrictions). Within those areas, however, the same declarations also give SCDC the last word on whether to approve or disapprove applications based on consistency with the Code, as well as the association or associations in which the owners of the parcels, or their association representatives, must be members.”). 3 In fact, the declaration for Town Center states that the area includes all the property shown on the Seaside master plan “intended for commercial use and which has not, as of this date, been made subject to a neighborhood declaration.” 14 authority to grant variances from the Seaside Code, in its sole discretion. SCDC expressly intended that both declarations be binding only on itself and the future owners to which SCDC conveyed parcels within either area, and that only SCDC and those future owners would be the beneficiaries of the easements and restrictions established under those declarations. There is no mention of any of the nine residential neighborhoods (or STC, for that matter). In other words, STC and its neighborhood associations are strangers to the declarations governing Town Center and Lyceum. Undeterred by any of this, STC, on behalf of its members, sued to challenge SCDC’s approval of plans for development in Town Center and Lyceum (not any of the neighborhoods) that STC contends deviated from the Seaside Code. STC, however, did not seek directly to enforce SCDC’s declarations for the two areas pursuant to chapter 720, Florida Statutes. 4 It sought declaratory relief instead. Rather than mention the declarations governing the two areas where the challenged development was to occur, STC relied on the Seaside Code, the neighborhood declarations, and something called a Seaside Statement (none of which mention or refer to Town Center or Lyceum). It prayed for a judicial determination of whether the Seaside Code governed all development in Seaside; whether SCDC may deviate from the Code within Town Center and Lyceum without the consent of STC; whether all development in Seaside was subject to review and 4 Presumably, it could not. Cf. § 720.301(3), (4), (8), (9), (10), (11), Fla. Stat. (defining “community,” “declaration of covenants,” “homeowner’s association,” “member,” “governing documents” and “parcel” in terms limited to applicability of covenants and restrictions to owners of lots within a residential area delineated within the declaration); § 720.302(3)(a), Fla. Stat. (stating that the chapter does not apply to a “community that is composed of property primarily intended for commercial, industrial, or other nonresidential use”); § 720.305(1), Fla. Stat. (allowing for suit “by the association or by any member against” each other, or against a director or officer of the association under certain circumstances, or against “[a]ny tenants, guests, or invitees occupying a parcel or using the common areas”). 15 approval from the same architectural review committee; and whether the areas designated in the Seaside Code as “public buildings and spaces” must be limited to public use as civic and common areas. STC, in essence, sought to enforce the Seaside Code against SCDC as to development in Town Center and Lyceum without relying on the declarations that govern those areas. Florida permits a suit for declaratory relief in advance of any violation of a right or breach of a duty, but there still must be a legal source of the right or duty. STC failed to identify any legal instrument or statute that expressly establishes the legal relationship between the parties that could give rise to the right or duty it wants judicially enforced. In turn, there was no concrete controversy that the trial court could adjudicate, and dismissal was the appropriate disposition. II. Declaratory relief was unknown to the ancient common law; it is a relatively recent legislative innovation. See Developments in the Law: Declaratory Judgments—1941–1949, 62 HARV. L. REV. 787, 790 (Mar. 1949). The ancient common-law view restricted the invocation of judicial power “to existing or highly imminent ruptures in social and economic relationships,” which is to say that there had to be a “wrong” and a coercive remedy available for that wrong. See id. at 789 & n.15; Edwin M. Borchard, The Declaratory Judgment—A Needed Procedural Reform, 28 YALE L.J. 1, 1–2 (1918) (explaining that fundamental to the common law was the theory that the “commission of wrong, public or private, is essential . . . in order that the judicial arm of the State may be invoked to restore the social equilibrium”); cf. Watson v. Claughton, 34 So. 2d 243, 245 (Fla. 1948) (explaining “the common- law rule that no declaration of rights may be judicially adjudged unless a right has been violated” (citation omitted)); Sheldon v. Powell, 128 So. 258, 263 (Fla. 1930) (“The common-law judgment cannot be secured until a right has been invaded or an injury imposed, while the declaratory decree contemplates that parties may be in doubt as to their rights, and that they may have a judicial determination of them before wrong has been committed or damage done.”). 16  The Legislature changed all of this in 1943 when it enacted a law allowing for declaratory relief. See Ch. 21820, Laws of Fla. (1943). 5 The current version of the law allows the circuit and county courts to “declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed.” § 86.011, Fla. Stat. A declaratory judgment differs from traditional relief primarily in “that the declaration stands by itself; that is, no executory process follows as of course. In other words, such a judgment does not involve executory or coercive relief.” Watson, 34 So. 2d at 245 (citation omitted); cf. Developments in the Law, supra, at 787 (“The declaratory judgment comprises an authoritative judicial statement of the jural relationships between parties to a controversy. It does not itself, however, have any direct coercive effect.”). “The purpose of a declaratory judgment is to determine the rights and duties of the parties without the need to resort to a tort or contract action as a prerequisite to a judicial determination.” Price v. Tyler, 890 So. 2d 246, 251 (Fla. 2004). The availability of declaratory relief “extends the scope of court protection in advance of harm, seeking to forestall rather than merely repair damage.” See Developments in the Law, supra, at 789. The relief allows “either party to seek adjudication of disputes prior to any breach of duty.” Id. (emphasis supplied). The declaratory judgment, in turn, “serve[s] as an instrument of preventive justice, to render practical help in determining issues, and to adjudicate the rights or status of parties, without the peril of committing a crime or resorting to violence or breach to put the legal machinery in motion. It is inhibitory of injury.” Sheldon v. Powell, 128 So. 258, 262 (Fla. 1930) (quotations omitted); see also Developments in the Law, supra, at 789 & n.15. All of this said, the declaratory judgment law still does not give a trial court the authority to address a general or abstract dispute between parties, unmoored from some legal instrument, contract, statute, or other basis in law. It creates a right of action 5 The declaratory judgment law was moved to chapter 86 in 1967. See Ch. 67-254, § 38, at 681–84, Laws of Fla. 17 for relief even though there has been no injury suffered; it does not create a new cause of action to adjudicate a new right into existence out of whole cloth. As the supreme court explained, “the Declaratory Judgments Act is nothing more than a legislative attempt to extend procedural remedies to comprehend relief in cases where technical or social advances have tended to obscure or place in doubt one’s rights, immunities, status or privileges.” Ready v. Safeway Rock Co., 24 So. 2d 808, 809 (Fla. 1946) (emphasis supplied). “Except for the coercive element in the judgment or decree, we understand that there is no difference between a declaratory judgment or decree and any other judgment between opposing parties.” Watson, 34 So. 2d at 245 (emphasis supplied) (citation omitted). In other words, the declaratory judgment law presumes a pre- existing source of the right to be adjudicated. The law should not serve as a substitute for that source, and it “should not be permitted to foster frivolous or useless litigation to answer abstract questions, to satisfy idle curiosity, go on a fishing expedition or to give judgments that serve no useful purpose.” Ready, 24 So. 2d at 809; cf. Borchard, supra, at 110 (mentioning that “the declaratory judgment is not intended merely to enable persons to ‘sleep o’ nights,’” that is, “to establish truisms that no one disputes”). Nevertheless, STC essentially sought to do just this in its operative complaint. As I mentioned earlier, there are nine residential declarations, each binding a particular neighborhood. None mention Town Center or Lyceum. These two areas have their own declarations, neither of which mentions any of the neighborhoods. There is no declaration that links STC, its constituent neighborhoods, and SCDC with respect to Town Center and Lyceum. In an attempt to bridge this gap, STC’s suit relied generally on the Seaside Code, which all the declarations incorporate by reference. Because all the declarations reference the Code, STC’s suit suggested that the Code applied generally throughout Seaside, such that STC could proceed against SCDC for approving development within Town Center or Lyceum that varied from the Code without the neighborhoods’ consent. 18  The Code by itself is not enough to support STC’s claim for relief. Nothing in the Code states that it was to be a set of overarching restrictive covenants enforceable against or by anyone owning property within Seaside. It in no way resembles a declaration of covenants, and it does not purport to be an independent source of rights. Instead, with its aspirational and generalized language, diagrams, images, and plans, it reads more like a marketing piece. With the following statement in the Code, it seems to disclaim its status as a formal legal instrument: “The Code is graphic rather than written so that the citizen/buyer may understand its provisions without professional assistance and not perceive it as a tiresome obstacle to building.” All of this is to say that the Code alone does not give STC (or any of the neighborhoods) a right of enforcement against SCDC regarding its development in Town Center or Lyceum. Missing, then, is a specific, legally cognizable source from which the ostensible rights or duties between STC and SCDC allegedly derive. Without that, there was no controversy that the trial court could adjudicate. To invoke jurisdiction for a trial court to construe any legal instrument under the declaratory judgment law, the plaintiff must “allege fac