author: May, J.

text:
    The LEXINGTON CLUB COMMUNITY ASSOCIATION, INC., and The Lexington Club Villas Condominium Association, Inc., Appellants, v. LOVE MADISON, INC. d/b/a Alexander Insurance, Appellee.
    No. 4D17-1843
    District Court of Appeal of Florida, Fourth District.
    [August 15, 2018]
    Douglas J. Roberts, Michael E. Stearns and Mark D. Nichols of Stearns, Roberts & Guttentag, LLC, Deerfield Beach, for appellants.
    Allison C. Heim, Gina E. Romanik and Marcel M. Flemming of Mintzer Sarowitz Zeris Ledva & Meyers LLP, Miami, for appellee.
   May, J.

A post-Hurricane Wilma roof repair led to negligence and unjust enrichment claims by two condominium associations ("associations") against an insurance agent that failed to procure a contractually required "Payment and Performance Bond" on behalf of the contractor. From a judgment for the associations, for less than the amount claimed, the associations appeal. They argue the trial court erred in its damages instruction to the jury and in excluding certain evidence. We disagree there was error in the damages instruction given, and while the trial court erred in excluding certain evidence, that error was harmless. We therefore affirm.

Hurricane Wilma caused significant damage to the associations' condominium and townhome buildings. After the hurricane, the associations hired a general contractor and roofing company to re-roof all of the buildings and perform other repairs to the property. The contract was in excess of $6,000,000.

The contract provided:

13.1.1 The Contractor shall execute and deliver to the Owner a Payment and Performance Bond in the amount of 100% of the Contract Sum. The attorney-in-fact or other Officer who signs a Payment and Performance Bond for a surety company must file with such Payment and Performance Bond a certified copy of his power of attorney authorizing him to do so. The surety's resident Florida agent must countersign the contract Payment and Performance Bond. The form of Payment and Performance Bond shall be as furnished by the Owner.
13.1.2 The Payment and Performance Bond must be written through surety insurers authorized to do business in the State of Florida as surety, with a rating of B-IX according to the latest edition of Best's Insurance Guide, published by A. M. Best Company, Oldwick, New Jersey. The Owner will not accept substituted securities for Payment and Performance Bond. Failure to timely provide the Payment and Performance Bond will be cause for forfeiture of the bid bond.

The contractor approached the defendant insurance agent to procure the bond. When the agent was unable to do so, the contractor suggested a company named Strategy Insurance Limited. The agent's principal submitted an application to Strategy, which agreed to issue the bond for a premium of $327,915.

The associations paid the premium directly to the agent via wire transfer. The agent retained a 10% commission and forwarded the remainder to Strategy. When the associations received the bond, they noticed that it listed Strategy's address in Barbados, West Indies. This raised a concern. It was determined that Strategy was not licensed to do business as an insurer in Florida, a contractual requirement.

And while the associations did not have cause to rely on the bond, they sued Strategy, the contractor, and the agent. They obtained a default judgment against Strategy, which is no longer in business. The associations entered into a settlement agreement with the contractor.

This left pending their claim against the agent. The fourth amended complaint against the agent included counts for: (1) negligent procurement of insurance; (2) a declaration that the bond was invalid and unenforceable; and (3) unjust enrichment.

At trial, the jury found the agent's negligence was NOT a legal cause of damages to the associations. But, it awarded $32,000 (10% of the premium) to the associations on the unjust enrichment claim. The trial court entered a final judgment in accord with the jury's verdict, and declared that "the payment and performance bonds issued by [Strategy] were invalid and unenforceable."

From this judgment and declaration, the associations now appeal.

The Jury Instruction on Damages

The associations argue the trial court improperly instructed the jury on damages for their claim for negligent procurement of insurance. They argue that, while normally the measure of damages is the amount of the loss that would have been covered had insurance been properly obtained, the associations were due a refund of the $327,915 premium paid for the useless bond.

The agent responds that the trial court properly instructed the jury that the measure of damages in a negligent procurement of insurance claim is the loss that would have been covered had the insurance been properly obtained. Because the associations suffered no loss, they were limited to criminal and/or administrative penalties against the agent.

We review a trial court's decision on whether to give a jury instruction for an abuse of discretion. Stokes v. Wynn , 219 So.3d 891, 894 (Fla. 4th DCA 2017).

The parties offered competing jury instructions on the proper measure of damages for the negligent procurement claim. The agent's instruction provided: "In an action for negligent procurement of insurance, the measure of damages is what would have been covered had the insurance been properly obtained." The associations' proposed instruction provided:

Compensatory damage is that amount of money which will put [the Insured] in a position nearly equivalent to what would have existed, had [the Insurer] not breached its duty owed to [the Insured], thereby causing injury.
Further, in an action for negligent procurement of insurance, the measure of damages where there is a loss is what would have been covered by insurance, had the insurance been properly obtained. When no loss has occurred that would have been covered, if the insurance had been properly obtained, the measure of damages is the amount paid for the premium.

The trial court gave the agent's proposed instruction.

Where the parties enter into an agreement to procure insurance and there is a negligent failure to do so, an insurance broker may be liable for damages. Gelsomino v. ACE Am. Ins. Co. , 207 So.3d 288, 292 (Fla. 4th DCA 2016). Florida case law provides that " '[t]he measure of damages in a negligent procurement of insurance case is what would have been covered had the insurance been properly obtained.' " Id. (quoting Mondesir v. Delva , 851 So.2d 187, 189 (Fla. 3d DCA 2003) ).

A negligent procurement of insurance claim arises from section 626.901, Florida Statutes (2017), which provides:

(2) If an unauthorized insurer fails to pay in full or in part any claim or loss within the provisions of any insurance contract which is entered into in violation of this section, any person who knew or reasonably should have known that such contract was entered into in violation of this section and who solicited, negotiated, took application for, or effectuated such insurance contract is liable to the insured for the full amount of the claim or loss not paid .

(Emphasis added).

The associations argue this statute and our case law are inapplicable because they only address situations where the insured suffers a loss that would otherwise have been covered had the proper insurance been obtained. Here, there was no claim or loss. Rather, the associations are seeking full reimbursement of their premium payment.

Florida has not yet addressed this issue, but other jurisdictions have.

[W]here no loss occurs the measure of damages has been stated to be the amount paid as the premium. If the policy procured is defective because of the terms and coverage provided therein, the measure of damages has been held to be the amount for which the insurer would have been liable had proper insurance been effected.

Simpson v. M-P Enters., Inc. , 252 So.2d 202, 207 (Miss. 1971) (emphasis added) (citations omitted). The Virginia Supreme Court has applied the same measure of damages. Autumn Ridge, L.P. v. Acordia of Va. Ins. Agency, Inc. , 270 Va. 83, 613 S.E.2d 435, 437 (2005) ("We conclude ... that when no loss has occurred ..., the measure of damages for failure to procure insurance is the amount paid by the intended insured as the premium.").

In a very similar case, the Louisiana Court of Appeal held that "[c]ompensating [the subcontractor] by awarding it the amount it paid for the defective bonds ... is a proper award of damages." Gulf Coast Bldg. Sys., Inc. v. United Am. Sur. Co., Ltd. , 614 So.2d 1360, 1365 (La. App. 3 Cir. 1993).

In Florida a negligent procurement of insurance action is statutorily authorized where there is a loss during the time the insured holds the policy . § 626.901, Fla. Stat. In a negligent procurement action, an unauthorized insurer's policy is still enforceable and is applied as such to cover any losses that were not covered by the policy. See §§ 626.901(3), 627.418(1), Fla. Stat. (2017). Thus, while the associations' policy was issued by an unauthorized insurer, the insurer would still be held responsible. Here, however, the associations suffered no monetary loss during the construction.

The Legislature provided that "[n]o insurance contract entered into in violation of this section shall be deemed to have been rendered invalid thereby." § 626.901(3), Fla. Stat. As such, the Legislature expressly made the unauthorized insurer's policies enforceable in a negligent procurement action.

The associations suggest that section 626.901 is inapplicable because their claim against the agent falls within general negligence. But even under a general negligence standard, the associations are required to prove damages. They simply cannot meet this burden because they sustained no loss during the construction.

We decline to adopt the damages law of foreign states where our Legislature has provided statutory remedies. We find no error in the trial court's damages instruction to the jury and affirm on this issue.

The Evidentiary Issue

The associations next argue the trial court abused its discretion in not admitting a consent order and the agent's admission of its principal's license suspension. They argue the suspension was predicated on the principal's violation of a statute that bars aiding and abetting unlicensed insurers and should have been admitted as evidence of negligence. The agent responds that the suspension was properly excluded as part of a settlement agreement between the principal and the Florida Department of Financial Services, pursuant to section 90.408, Florida Statutes (2017).

We review a trial court's ruling on the admissibility of evidence for an abuse of discretion, limited by the rules of evidence. Yang v. Sebastian Lakes Condo. Ass'n, Inc. , 123 So.3d 617, 620 (Fla. 4th DCA 2013).

During discovery, the agent responded to the associations' request for admissions. The agent admitted that

1) its principal did not know that Strategy was unlicensed when he procured the bond for the project;
2) its principal did no investigation into whether Strategy was unlicensed;
3) it received a commission on the bond;
4) its principal had no intent to commit fraud or a criminal act in procuring the bond; and
5) its principal was disciplined and had his license suspended by the Florida Department of Business and Professional Regulation ("DBPR") for his conduct in procuring the bond.

When the associations attempted to admit the State's Consent Order and Settlement Stipulation, the trial court excluded the evidence based on section 90.408 relating to offers to compromise. The trial court however indicated that if the principal denied wrongdoing or knowing that Strategy was unauthorized to issue insurance, then it would open the door to discussion of his discipline.

Section 90.408 provides: "Evidence of an offer to compromise a claim which was disputed as to validity or amount, as well as any relevant conduct or statements made in negotiations concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value."

The associations argue this section does not apply because the consent order is not an "offer," and the State's administrative proceeding, resulting in the consent order, is not the "claim" at issue. The agent responds that it was an offer because the State sent the principal a letter offering that he receive a suspension of his insurance license and complete continuing education courses in lieu of a formal administrative complaint being filed. The principal agreed to these terms.

We disagree with the agent that Jordan v. City of Coral Gables , 191 So.2d 38 (Fla. 1966), supports its position. There, our supreme court stated "that it was prejudicial error to allow the submission of evidence of settlement by defendant of the claim of a third party in the same accident ...." Id. at 38. This case is unlike Jordan . Here, there was a settlement in a prior administrative proceeding involving the State, unrelated to the lawsuit. And, section 8 of the consent order specifically provided: "This document is a public record and contains information which is routinely published by the Department."

The court erred in excluding the consent order and other admissions as none of them fall within the purview of section 90.408. Nevertheless, these errors were harmless. See Special v. West Boca Med. Ctr. , 160 So.3d 1251, 1265 (Fla. 2014). Had the trial court admitted this evidence, it likely would have had no effect on the verdict because (1) there was already proof of the agent's negligence, and (2) the jury found no loss during the construction that would have entitled the associations to damages in their negligent procurement action.

The agent's principal testified that he did not do his due diligence in researching the insurer. He admitted the agency had no policies and procedures in place to check whether insurers were authorized to do business in Florida. He testified that he did not know whether Strategy was authorized to do business in Florida. He admitted he could have done more to prevent the problem.

In short, the agent's principal admitted his negligence. And yet, the jury found no loss due to the agent's negligence. It did however award the associations $32,000, the premium paid to the agent, on the unjust enrichment claim. It also appears the agent's principal was sanctioned by the DPBR.

For the foregoing reasons, we affirm.

Affirmed.

Warner and Forst, JJ., concur.


source: Caselaw Access Project

author: Gerber, C.J.

license: Public Domain

text:
    Vladimir MASNEV, Appellant, v. Anna MASNEV, Appellee.
    No. 4D17-1238
    District Court of Appeal of Florida, Fourth District.
    [August 15, 2018]
    Gregory F. Betancourt of Gregory F. Betancourt, P.A., Miami Lakes, for appellant.
    William L. Gardiner, III of The W. L. Gardiner Law Firm, PLLC, Fort Lauderdale, for appellee.
   Gerber, C.J.

The former husband appeals from the trial court's final judgment of dissolution of marriage, which determined equitable distribution, child support, and alimony. The former husband raises several arguments of error, but we conclude only two have merit, as we discuss in turn below.

First, we reverse the trial court's lump sum child support award to the former wife, because no statutory or precedential authority allows for such a lump sum child support award. If the Florida Legislature intended to permit a lump sum child support award, then perhaps the Legislature would have included such a provision within the child support provisions of section 61.30, Florida Statutes (2016), as it did within the alimony provisions of section 61.08(1), Florida Statutes (2016): "In any award of alimony, the court may order periodic payments or payments in lump sum or both." On remand, as the former husband concedes, instead of a lump sum child support award, the trial court may consider sequestering the former husband's assets to provide security for the child support award. See Frank v. Frank , 587 So.2d 668, 668 (Fla. 4th DCA 1991) ("[T]he trial judge should have considered the sequestration and application of appellant's interest in the former marital home to discharge the support obligation arrearages ...."); Cole v. Cole , 723 So.2d 925, 927 (Fla. 3d DCA 1999) (trial court did not abuse its discretion "in sequestering all of the former husband's share of the marital assets in a trust fund for future child support, given the former husband's current incarceration and precarious immigration status in this country").

Second, we reverse the trial court's gross monthly income calculation, because the trial court did not consider the in kind contribution for health insurance which the former wife received from her business, and did not include the former wife's rental income. According to section 61.30(2)(a) 13., Florida Statutes (2016), "[g]ross income shall include ... [r]eimbursed expenses or in kind payment to the extent that they reduce living expenses." Here, the former wife testified that her business paid $300 a month for her health insurance, and $400 a month for the children's health insurance. However, the trial court did not reduce the former wife's living expenses by those amounts. Further, in the final judgment, the trial court found the former wife's gross monthly income was $4,725, which included the former wife's $4,500 salary from her business and $225 in rental income. However, in the child support guideline worksheet, the trial court noted the former wife's gross monthly income was $4,500. Thus, it appears the trial court erred in calculating the former wife's gross monthly income by not including her rental income. We remand for a proper calculation.

Reversed and remanded for further proceedings consistent with this opinion.

Ciklin, J., concurs.

May, J., concurs in part and dissents in part with an opinion.

I concur with the majority's opinion as far as it goes, but would also reverse the judgment on the court's imputed income to the former husband. That imputation is not supported by competent, substantial evidence. See Brown v. Cannady-Brown, 954 So.2d 1206, 1207 (Fla. 4th DCA 2007). The trial court appears to have solely relied on the former husband's historical earnings, which fails to reflect the former husband's present ability to pay. See Sallaberry v. Sallaberry , 27 So.3d 234, 236 (Fla. 4th DCA 2010) ; Chipman v. Chipman , 975 So.2d 603, 609 (Fla. 4th DCA 2008).

I would therefore direct the trial court to recalculate the former husband's income by considering his "employment potential and probable earnings based on work history, qualifications, and prevailing wages in the community." Zarycki-Weig v. Weig , 25 So.3d 573, 575 (Fla. 4th DCA 2009). Because the alimony and child support awards are directly based on the imputed income determination, the trial court would necessarily have to revisit those awards too. See Rabbath v. Farid , 4 So.3d 778, 784 (Fla. 1st DCA 2009).


author: LaROSE, Chief Judge.

text:
    Jordan L. CHAIKIN, Appellant, v. PARKER WAICHMAN LLP, a Florida limited liability partnership; and Jerrold S. Parker, individually, Appellees.
    Case No. 2D16-4883
    District Court of Appeal of Florida, Second District.
    Opinion filed October 11, 2017
    Traci T. McKee and Kyle C. Dudek of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellant.
    Alan J. Kluger, Michael T. Landen, and Christina M. Himmel of Kluger, Kaplan, Silverman, Katzen & Levine, P.L., Miami, for Appellees.
   LaROSE, Chief Judge.

Jordan L. Chaikin appeals a nonfinal order granting a motion to compel arbitration of his counterclaims against Parker Waichman LLP and Jerrold S. Parker (collectively, "Parker Waichman"). We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(iv). Because Parker Waichman waived its right to compel arbitration, we reverse.

Background Facts

Parker Waichman is a New York-based law firm. In November 2007, it hired Mr. Chaikin as an associate in its Florida office. Allegedly, Mr. Chaikin signed an employment agreement and received an employee handbook detailing the terms, conditions, and obligations of his employment.

Almost three years later, Parker Waichman made Mr. Chaikin a "profit partner." The parties executed a Partnership Agreement to herald Mr. Chaikin's promotion. Among other rights and duties, the Partnership Agreement entitled Mr. Chaikin to share in the firm's annual earnings. Significantly, for the purposes of this appeal, the Partnership Agreement provided that "[a]ny controversy or claim arising out of or relating to this Agreement, or any alleged breach hereof, or arising out of or relating to the Partners and the Partnership, may be settled by arbitration conducted in Nassau, New York, at the option of the Partnership."

Over the ensuing years the relationship between Mr. Chaikin and Parker Waichman soured, marked by mutual recriminations of disloyalty and disapprobation. Mr. Chaikin resigned abruptly in December 2015. Thereafter, Parker Waichman sued him in Lee County. Mr. Chaikin answered the complaint. He asserted several affirmative defenses and counterclaims. Parker Waichman moved to dismiss the counterclaims "as subject to an arbitration provision contained in the [Partnership Agreement]." The trial court ruled in favor of Parker Waichman. The trial court found that the arbitration clause was valid and enforceable, that "Parker Waichman did not knowingly and intentionally relinquish its right to arbitrate," and that the "claims alleged in the Counterclaim[s] are arbitrable." Observing that the counterclaims were based solely on Parker Waichman's alleged breach of the Partnership Agreement, the trial court concluded that the counterclaims fell squarely within the ambit of the arbitration clause. The order dismissing the counterclaims in favor of arbitration seemingly creates an incongruous result: Parker Waichman's lawsuit remains before a trial court in Lee County, while Mr. Chaikin's related counterclaims are consigned to arbitration in New York.

Analysis

"Generally, the three fundamental elements that must be considered when determining whether a dispute is required to proceed to arbitration are: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Jackson v. Shakespeare Found., Inc., 108 So.3d 587, 593 (Fla. 2013) (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1999) ). The sole issue before us is whether Parker Waichman waived its right to arbitrate Mr. Chaikin's counterclaims. On this dispositive issue, the parties' positions diverge.

Mr. Chaikin contends that Parker Waichman waived its right to arbitrate by suing him in the first instance in Lee County. Seeking affirmative relief in the trial court, according to Mr. Chaikin, constituted a waiver of the right to arbitrate "an adversary's counterclaims that implicate similar issues."

In contrast, Parker Waichman argues that the claims asserted in its amended complaint were based upon Mr. Chaikin's violations of the employment agreement and employee handbook, neither of which contain an arbitration clause. Parker Waichman insists that it did not waive the right to arbitrate the counterclaims by suing in state court.

Generally, "[w]e review an order granting or denying a motion to compel arbitration de novo." Roth v. Cohen, 941 So.2d 496, 499 (Fla. 3d DCA 2006). However, "whether a party has waived the right to arbitrate is a question of fact, reviewed on appeal for competent, substantial evidence to support the lower court's findings." Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 686 (Fla. 2d DCA 2009) (quoting Mora v. Abraham Chevrolet-Tampa, Inc., 913 So.2d 32, 33 (Fla. 2d DCA 2005) ).

"Florida public policy favors arbitration." Andre Franklin, Inc. v. Wax, 150 So.3d 815, 816 (Fla. 2d DCA 2014). Thus, the "use [of arbitration provisions is] generally favored by the courts." Seifert, 750 So.2d at 636. Nonetheless, the right to arbitration is not unbridled. "The contractual right to arbitration ... is subject to waiver." Andre Franklin, Inc., 150 So.3d at 816 (citing Mora, 913 So.2d at 34 ). Based upon the record before us, we conclude that Parker Waichman waived its right to arbitrate and the trial court's order dismissing the counterclaims was in error. We reverse and return this matter to the trial court for further proceedings.

" 'Waiver' has been defined 'as the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.' " Green Tree Servicing, LLC, 15 So.3d at 687 (quoting Raymond James Fin. Servs., Inc. v. Saldukas (Saldukas II ), 896 So.2d 707, 711 (Fla. 2005) ). "A party may waive its contractual [arbitration right] by actively participating in a lawsuit or taking action inconsistent with that right." Andre Franklin, Inc., 150 So.3d at 816 (citation omitted). "The essential question is whether, under the totality of circumstances, the defaulting party has acted inconsistently with the arbitration right." Green Tree Servicing, LLC, 15 So.3d at 687 (quoting Nat'l Found. for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C. Cir. 1987) ).

In its nine-count amended complaint, Parker Waichman raised various claims against Mr. Chaikin, the gravamen of which concern his time as a profit partner. For example, Count IV of the amended complaint alleges that "[a]s a partner at Parker Waichman, [Mr.] Chaikin owed a fiduciary duty to Parker Waichman," which he breached by covertly communicating with and soliciting Parker Waichman's clients, "stealing proprietary information that belonged to Parker Waichman for his own benefit," and disclosing confidential information.

Count IV falls within the broad scope of the Partnership Agreement's arbitration clause. See Olson v. Fla. Living Options, Inc., 210 So.3d 107, 111 (Fla. 2d DCA 2016) ("The addition of the words 'relating to' broadens the scope of an arbitration provision to include those claims that are described as having a 'significant relationship' to the contract ...." (quoting Jackson, 108 So.3d at 593 )). Further, a significant relationship existed between this breach-of-fiduciary-duty count and the Partnership Agreement.

[A] significant relationship is described to exist between an arbitration provision and a claim if there is a "contractual nexus" between the claim and the contract. A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties' unique contractual relationship.

Id. (alternation in original) (citations omitted) (quoting Jackson, 108 So.3d at 593 ). Although Count IV is grounded upon Mr. Chaikin's alleged breach of his fiduciary duties under the Partnership Agreement, Parker Waichman elected to pursue this claim in state court.

As a further example, in seeking an accounting in Count IX of the amended complaint, Parker Waichman alleged that "Chaikin was a partner in the Parker Waichman law firm," and that "Parker Waichman is entitled to all partnership assets, property, books, records[,] or benefits ... derived during the course of his employment with Parker Waichman." Count IX necessarily implicates Mr. Chaikin's fiduciary obligations under the Partnership Agreement. Cf. Cassedy v. Alland Inv. Corp., 128 So.3d 976, 978 (Fla. 1st DCA 2014) (noting that while an action for accounting is a distinct cause of action from breach of a fiduciary duty, "an action for an accounting ... may be available where a fiduciary duty exists"). By seeking relief for alleged breaches of the Partnership Agreement, Parker Waichman could have pursued Count IX in arbitration.

In response to the amended complaint, Mr. Chaikin asserted several counterclaims: breach of contract, breach of fiduciary duty, breach of duty of loyalty, breach of covenant of good faith and fair dealing, unjust enrichment, and tortious interference with an advantageous business relationship. Mr. Chaikin alleged that each claim stems from Parker Waichman's breaches of the Partnership Agreement.

Parker Waichman argues that the amended complaint is "solely based on breaches of Chaikin's Employment Agreement and Employee Handbook." As recounted, above, this assertion is incorrect. At a minimum, Counts IV and IX arise from the Partnership Agreement. Therefore, Parker Waichman's attempts to frame these claims as arising out of either or both the employment agreement and the employee handbook is unavailing. The initial lawsuit and the counterclaims find their genesis in the Partnership Agreement.

Parker Waichman's election to seek relief in state court has consequences. As we have noted, "[a] party's active participation in a lawsuit is inconsistent with arbitration." Green Tree Servicing, LLC, 15 So.3d at 687. "[A] party acts inconsistently with the right to arbitration when the party actively participates in the lawsuit by either prosecuting or defending issues that are subject to arbitration." Gen. Elec. Capital Corp. v. Bio-Mass Tech, Inc., 136 So.3d 698, 701 (Fla. 2d DCA 2014) (citing Green Tree Servicing, LLC, 15 So.3d at 687 ); see also Seville Condo. #1, Inc. v. Clearwater Dev. Corp., 340 So.2d 1243, 1245 (Fla. 2d DCA 1976) ("The prosecution or defense of a lawsuit on issues subject to arbitration may constitute a waiver." (citation omitted)). By electing to sue and pursue relief in the trial court on arbitrable claims arising out of or relating to the Partnership Agreement, Parker Waichman waived its right to seek arbitration. "Initiating a lawsuit ... without first seeking arbitration, constitutes an affirmative selection of a course of action which runs counter to the purpose of arbitration." Beverly Hills Dev. Corp. v. George Wimpey of Florida, Inc., 661 So.2d 969, 971 (Fla. 5th DCA 1995) (citation omitted).

Correspondingly, Parker Waichman's decision to sue in state court was adverse to its insistence that Mr. Chaikin's counterclaims, founded upon the same Partnership Agreement, be submitted to arbitration. What is sauce for the goose is sauce for the gander. Cf. Green Tree Servicing, Inc., 15 So.3d at 687 ("[O]nce a party has waived the right to arbitration by active participation in a lawsuit, the party may not reclaim the arbitration right without the consent of his or her adversary." (citing Williams v. Manor Care of Dunedin, Inc., 923 So.2d 615, 616-17 (Fla. 2d DCA 2006) ; then citing Bared & Co. v. Spec. Maint. & Constr. Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992) )).

Hawkins v. James D. Eckert, P.A., 738 So.2d 1002 (Fla. 2d DCA 1999), is helpful. There, we reversed an order compelling arbitration of the appellant's counterclaims. Id. at 1002-03. The appellant was represented by the appellees' law firm in a divorce case. Id. at 1002. The appellees later sued to recover fees owed under a retainer agreement. The appellant filed an answer, affirmative defenses, and a counterclaim. The appellees answered the counterclaim, asserted affirmative defenses, and also moved to compel arbitration pursuant to an arbitration provision in the retainer agreement. We agreed with the appellant that "the appellees waived the right to compel arbitration when they filed suit to enforce the [retainer agreement]." Id.

As in Hawkins, by pursuing relief in the trial court based upon the Partnership Agreement, Parker Waichman waived its right to compel arbitration of Mr. Chaikin's counterclaims, which were also based upon the Partnership Agreement. See also Twin Oaks at Southwood, LLC v. Summit Constructors, Inc., 941 So.2d 1263, 1268 (Fla. 1st DCA 2006) (reversing trial court's order dismissing the defendant's counterclaims in favor or arbitration where plaintiff's initiation of lawsuit waived the right to arbitration); Owens & Minor Med., Inc. v. Innovative Mktg. and Distribution Servs., Inc., 711 So.2d 176, 177-78 (Fla. 4th DCA 1998) (affirming trial court's denial of plaintiff's motion to compel arbitration of defendant's counterclaim due to plaintiff's "active participation in litigation" where the plaintiff initiated litigation in the trial court and the "matters raised in the counterclaim [were] intertwined with issues raised in the amended complaint").

Conclusion

Accordingly, we reverse the order dismissing Mr. Chaikin's counterclaims in favor of arbitration and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WALLACE and KHOUZAM, JJ., Concur.

      Our record contains a signed copy of the employee handbook; we have no fully executed employment agreement. Parker Waichman contends that "Mr. Chaikin executed a copy of this employment agreement at the time he was hired" and "[i]t is believed that the executed copy is in [Mr. Chaikin]'s possession." Because a signed copy of the employment agreement is not critical to the resolution of the issue before us, we need not afford it further consideration.

      Parker Waichman argues that we cannot conduct a review of the order because there is no transcript of the hearing on its motion to dismiss. Because the motion to dismiss hearing consisted solely of legal argument, not the taking of evidence, the absence of a transcript does not preclude our review of the order on appeal. See Houk v. PennyMac Corp., 210 So.3d 726, 730-31 (Fla. 2d DCA 2017) ; Fish Tale Sales & Serv., Inc. v. Nice, 106 So.3d 57, 63 (Fla. 2d DCA 2013).


text:
    Randall GUNNING, individually, Castle Consulting I Ltd., Inc., a Florida corporation; and River of Life International Outreach Center, Inc., a Florida corporation, Appellants, v. EQUESTLEADER.COM, INC., a Virginia corporation; and Donald Pierce, individually and president of Equestleader.Com, Inc., Appellees.
    Case No. 2D16-2214
    District Court of Appeal of Florida, Second District.
    Opinion filed October 13, 2017
    Walter E. Smith of Meros, Smith, Lazzara, Brennan, Brennan & Olney, P.A., St. Petersburg, for Appellants.
    Eric E. Ludin and Amy Ray of Tucker & Ludin, P.A., St. Petersburg, for Appellees.
    NORTHCUTT, Judge Equestleader.com, Inc., recovered a judgment for civil trespass damages against Randall Gunning, Castle Consulting I Ltd, Inc., and River of Life International Outreach Center, Inc. We reverse because, as a matter of law, none of the appellants committed a trespass.
    This dispute arose from an unorthodox, June 2006 real estate transaction wherein Gunning purchased real property from Equestleader subject to existing mortgages. The property consisted of two contiguous lots that shared the same address in Pinellas Park. Situated on lot 3501 were a stable and a barn. On lot 3508 was a house. The parties' contract provided that Gunning would receive possession upon the execution of the contract and that Equestleader would "net no proceeds from the sale." The contract further stated: "Seller authorizes buyer to negotiate with Wachovia Bank regarding payoff or settlement of account and accepts title subject to mortgage."
    The day after the execution of the sales contract, the parties entered into a separate agreement under which Equestleader and its president, Donald Pierce, would furnish consulting services in exchange for $250,000 and a yacht owned by Gunning. The consulting agreement incorporated by reference the contract for sale of the Pinellas Park property and also provided that if Gunning successfully negotiated with Wachovia Bank to reduce the mortgage to less than the amount owed at time of closing on the contract for sale, Gunning would remit to Equestleader and Pierce half the resulting savings.
    On September 1, 2006, Pierce executed a warranty deed conveying the property to Gunning. However, he signed the deed in his individual capacity instead of as president of Equestleader, the property owner. Four years later, on August 31, 2010, Gunning's attorney contacted Pierce's attorney in regard to the error in the deed. Subsequently, Pierce refused to sign a corrected deed as president of Equestleader, complaining that the mortgages on the property were not current. However, on August 2, 2010, a tax deed had been recorded showing that appellant Castle Consulting had purchased lot 3501 at a tax sale on July 28, 2010. Gunning testified at trial that he later purchased lot 3501 from Castle Consulting.
    On December 2, 2011, Equestleader filed suit seeking to eject the occupants from the Pinellas Park property. Pierce later testified that he had personally gone onto the property and asked the occupants to leave. However, there was no testimony as to the date this occurred, other than that it was after the error in the warranty deed was discovered.
    Meanwhile, Wachovia Bank, N.A., had obtained a summary final judgment foreclosing its mortgage on lot 3508 on June 10, 2010. On April 4, 2013, an amended final summary judgment of foreclosure was entered nunc pro tunc to that date-Gunning testified at trial that he had made no mortgage payments between late 2008 and 2010. D W Homes purchased the property at a foreclosure sale for $75,500, and the certificate of title was issued on December 3, 2013. The next day, D W Homes transferred lot 3508 to appellant River of Life by quitclaim deed. The trial testimony established that River of Life was a company controlled by Gunning. He testified that D W Homes had outbid him at the foreclosure sale and that he then had paid $85,000 for lot 3508.
    Following the foreclosure sale, Equestleader dropped its ejectment action and filed a third amended complaint against Gunning, Castle Consulting, and River of Life, claiming damages for civil trespass on both lots 3501 and 3508. The complaint alleged: "Throughout the time between September 1, 2006 and December 2013 or January 2014, the Defendants trespassed on the Plaintiff's property, occupying the property without lawful right or authority and without compensation to the Plaintiff."
    After a nonjury trial, the trial court entered judgment for Equestleader. The court found that "[o]n October 31, 2010, the parties discovered the error with the Deed and the Plaintiff's consent to the Defendants' occupancy of the properties was revoked." The court ruled that the use and occupancy of the premises after consent to possession had been revoked was a trespass. It awarded damages against the three defendants based on the value of the property, measured by the price the defendants paid respectively to buy the one lot at the tax sale and to buy the other lot from the winning bidder in the foreclosure. This was error; the proper measure of damages for a trespass is the value of the loss of use and enjoyment of or the injury to the land trespassed upon. Daniel v. Morris, 181 So.3d 1195, 1199 (Fla. 5th DCA 2015). However, we need not delve further into this issue or remand for a recalculation of damages because there was no trespass here to begin with.
    Civil trespass to real property occurs when there is an injury to or use of the land of another by one having no right or authority. Winselmann v. Reynolds, 690 So.2d 1325, 1327 (Fla. 3d DCA 1997). To sue and recover for a trespass, the plaintiff must have been the owner or rightfully in possession of the land at the time of the trespass. Vincent v. Hines, 79 Fla. 564, 84 So. 614, 616 (Fla. 1920). Neither was the case here.
    Gunning became the equitable owner of the property when he and Equestleader entered into the contract for purchase and sale of the property, and that ownership continued notwithstanding the defective execution of the warranty deed. "[A] contract to sell real property establishes the vendee 'as the beneficial owner of the property, with the vendor retaining only naked legal title in trust for the vendee.' " Demosthenes v. Girard, 955 So.2d 1189, 1191 (Fla. 3d DCA 2007) (quoting B.W.B. Corp. v. Muscare, 349 So.2d 183, 184 (Fla. 3d DCA 1977) ). Further, as recited by the Demosthenes court:
    Thus, when Better Homes contracted in 2002 to sell the unit at issue to Girard, and certainly when it accepted payment for that unit and issued the first, albeit defective, warranty deed to him, Girard became the beneficial or equitable owner of the unit. This is so even if legal title did not effectively pass to him by virtue of the first defective warranty deed.
    Id.
    Indeed, Equestleader acknowledged and the trial court found that Gunning was authorized to occupy the property as its equitable owner at least until Equestleader "revoked" permission for Gunning to do so. But even if Equestleader rightfully could have unilaterally and extra-judicially revoked the fully executed purchase and sale transaction, this did not take place until sometime after August 31, 2010, when Equestleader's attorney was made aware of the defect in the original deed.
    By that time, Equestleader had no interest, legal or equitable, in lot 3501; that property had been conveyed by tax deed to Castle Consulting. See Sullivan v. Woodward, 582 So.2d 31, 33 (Fla. 1st DCA 1991). Thereafter, Castle Consulting had the right to occupy lot 3501 and Equestleader had no right to claim a trespass as to it. Thus, Castle Consulting's sale of the lot to Gunning was free of any claim by Equestleader.
    As for lot 3508, it is doubtful that Equestleader even could have asserted an equity of redemption following the June 2010 foreclosure judgment in favor of Wachovia. Regardless, even assuming such an interest, it was of no greater gravity than Gunning's equitable interest in the property, and it could not have given Equestleader any greater right to occupy the property than Gunning's. And, of course, any such interest was extinguished when D W Home purchased the property at the foreclosure sale and obtained a certificate of title. Again, as a matter of law, River of Life purchased the lot from D W Home free of any interest that might have been claimed by Equestleader.
    It is clear, then, that during the timeframe at issue (1) none of the defendants occupied the subject property without authority and (2) Equestleader had no interest in the property sufficient to support a trespass claim. Accordingly, we reverse the judgment and remand the case to the trial court, which shall enter judgment for the defendants.
    Reversed and remanded with directions.
    SALARIO and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: SALARIO, Judge.

text:
    CITY OF TREASURE ISLAND, a municipality within Pinellas County, Florida, Appellant, v. TAHITIAN TREASURE ISLAND, LLC, a Florida limited liability company; Page Terrace Motel, Inc., a Florida corporation; Caidan Enterprises, LLC, a Florida limited liability company; David King; Arthur Czyszczon; and Kevin McInerney, Appellees.
    Case No. 2D14-5406
    District Court of Appeal of Florida, Second District.
    Opinion filed October 27, 2017 Rehearing Denied January 10, 2018
    Kevin S. Hennessey and Jennifer R. Cowan of Lewis, Longman, & Walker, P.A., Bradenton, for Appellant.
    Courtney L. Fernald and Leonard S. Englander of Englander Fischer, St. Petersburg, and Martha Collins of Collins Law Group, Tampa, for Appellees.
   SALARIO, Judge.

The City of Treasure Island appeals from a final summary judgment in favor of Tahitian Treasure Island, LLC; Page Terrace Motel, Inc.; Caidan Enterprises, LLC; David King; Arthur Czyszczon; and Kevin McInerney (collectively, the Hoteliers). The dispute centers on claims by the Hoteliers that the City allows and hosts driving and parking on Treasure Island Beach in connection with festivals and public events in violation of section 161.58(2), Florida Statutes (2014), which prohibits "[v]ehicular traffic" on "coastal beaches" in Florida. The trial court agreed with the Hoteliers, declared that the "City's activities of hosting and allowing vehicular parking and driving on Treasure Island Beach" violate section 161.58(2), and permanently enjoined the City from hosting or allowing any parking and driving on Treasure Island Beach.

As we explain below, we find no error in the trial court's decision that the manner in which the City hosts public parking at the events that are the subject of the Hoteliers' complaint involves vehicular traffic on a coastal beach and is therefore prohibited by section 161.58(2). However, the trial court also declared illegal and enjoined other conduct that either does not constitute vehicular traffic (e.g., the movement of vehicles across the beach for purposes of event set-up) or is outside the scope of the Hoteliers' complaint and the summary judgment record. That was error. We affirm in part, reverse in part, and remand for further proceedings.

The Parties, The Dispute, And The Summary Judgment

The City is a beach community located on the coast of the Gulf of Mexico. The Hoteliers are the owners of three beachfront hotels in the City. Their properties are located upland of the central beach area of Treasure Island Beach. The area is central because it is located in the middle of Treasure Island and is beach because it fronts the shoreline along the Gulf. The central beach area is uncommonly wide for a Gulf Beach, stretching 800 to 900 feet from the water's edge to a City-owned, paved walkway that meanders around dunes at the landward side of the beach.

The City uses a large, sandy expanse in the middle of the central beach area to host several civic events each year, either on its own or by allowing certain organizations to do so. They range from carnivals to music festivals to car and truck shows to fireworks displays. These events often involve the construction of temporary structures-e.g., a tent, a carnival ride, or a stage-that are removed when the event has ended. The events have happened as often as thirty times a year.

To accommodate the attendees, the City makes temporary public parking areas available for the events. These public parking areas are located on a sandy region of the beach. The public can access them by driving along sandy, unpaved access paths that run from a paved lot near the walkway between the dunes, onto the beach, and into the temporary lots. The City collects a fee for the use of the beach parking areas. The number of cars taking advantage of the City-hosted beach parking varies from event to event, but on our record, it appears to have involved as many as 130 cars in the beach parking areas at past events.

In addition to public parking, the City also allows vehicles performing functions related to the events it hosts to drive and park on the beach. A vendor selling food and drink might drive a food truck onto the beach and park it there for that purpose. Similarly, a truck hauling a carnival attraction might drive over the beach and then park there for purposes of placing the attraction for the event and later removing the attraction after the event has ended. This activity is authorized by the City's ordinance that prohibits parking and driving on the beach, subject to certain exceptions, which include "participants and support staff for set-up and break-down of special events." See Treasure Island, Fla., Code of Ordinances of the City of Treasure Island, Fla. ch. 58, art. II, § 58.38(4) (1985).

Believing that driving and parking on the beach in connection with these events violates state law-including section 161.58(2)'s prohibition of vehicular traffic on coastal beaches-the Hoteliers sued the City in circuit court. Their amended complaint asserted three counts: Count I sought an injunction to prohibit the driving and parking on the beach and to require the City to strike that provision of its ordinance allowing it; Count II sought a judgment declaring that the driving and parking on the beach violates section 161.58(2) ; and Count III sought a judgment declaring that the City had violated a decree in earlier, related litigation between the City and the Treasure Island Motel Association.

The issues the City raises on appeal were decided on multiple motions for summary judgment filed by both the plaintiffs and the defendant. That led to some convoluted proceedings, but the procedural play-by-play is not relevant to the issues we decide. The bottom line is that the Hoteliers voluntarily dismissed Count III, and the parties proceeded to a decision on Counts I and II based on undisputed facts. The Hoteliers argued that the beach parking and driving involved in the civic events on Treasure Island Beach violate section 161.58(2) because (1) the events occur on coastal beaches within the meaning of the statute and (2) the movement and parking at those events constitutes vehicular traffic that is prohibited within the meaning of the statute. The City disputed both points, arguing that (1) the portion of Treasure Island Beach on which its events are held is not a "coastal beach" under section 161.58 because it is not technically a "beach" as that term is defined within chapter 161 and that even if it is a coastal beach, (2) the statute's term "[v]ehicular traffic" contemplates the movement of vehicles as though it were occurring along a public street or highway and is limited to "Daytona Beach-style driving," a characterization the City says cannot be applied to the movement and parking of vehicles at the events that are the subject of the Hoteliers' complaint.

The trial court denied the City's motions for summary judgment and granted the Hoteliers' motions. It entered a judgment that declared "that the City's activities of hosting and allowing vehicular parking and driving on Treasure Island Beach are in violation of Fla. Stat. § 161.58" and that the City Ordinance "is null and void to the extent that it conflicts with Fla. Stat. § 161.58 and purports to allow vehicular parking and driving on Treasure Island Beach." Based on its summary judgment determination that the City's activities violate section 161.58, the trial court's judgment further permanently enjoined the City "from hosting or allowing vehicular parking and driving on Treasure Island Beach." The City timely appealed.

The Issues On Appeal

There is one significant argument that the City raised in the trial court that it has not raised on appeal-that the events at issue do not occur on a "coastal beach" within the meaning of section 161.58(2). Accordingly, we assume for purposes of this opinion that they do occur on a coastal beach and express no judgment on that legal question. The City does, however, argue that the driving and parking of vehicles in connection with the subject events do not constitute "[v]ehicular traffic" as used in the statute and, further, that the relief the trial court ordered is overbroad. We address those issues below.

Beach And Shore Regulation And The Activities The City Hosts

Understanding the City's arguments requires understanding the statutory context in which section 161.58 resides-chapter 161, which governs beach and shore preservation-and how the activities involved in this case relate to it. Two parts of chapter 161 are implicated here: part I governs construction and other activity seaward of a coastal construction control line, and part III adds protections for parts of coastal areas deemed especially sensitive.

Coastal construction control line permitting under part I. First adopted in 1965, part I-which, taken together with part II, is called the Dennis L. Jones Beach and Shore Preservation Act-limits construction and physical activity in coastal areas, regulates how that construction and activity can occur, and provides enforcement mechanisms for violations. In the 1970s, the legislature added provisions to part I to regulate construction seaward of a "coastal construction control line" to be established by the Department of Environmental Protection. See generally § 161.053, Fla. Stat. (1971). The legislature's stated purpose in adopting these provisions was to protect beaches and coastal barrier dunes from imprudent construction. § 161.053(1)(a).

In current form, these statutory provisions require the department to establish coastal construction control lines on a county-by-county basis along the coasts of the state. § 161.053(1)(a), Fla. Stat. (2014). In general, those control lines are to "be established so as to define that portion of the beach-dune system which is subject to severe fluctuations based on 100-year storm surge, storm waves, or other predictable weather conditions." Id.; see also § 161.053(2)(a) (describing process required for establishing coastal construction control lines). Once a control line is established, it is unlawful to "construct any structure whatsoever seaward thereof; make any excavation, remove any beach material, or otherwise alter existing ground elevations; [or] drive any vehile on, over, or across any sand dune" unless one has a permit issued by the department. § 161.053(2)(a). A coastal construction control line permit can be issued only if certain statutory criteria related to the effect of the proposed activity on the land seaward of the control line are established. See § 161.053(2)(a), (4)(a).

The department has established a control line for Pinellas County that runs through Treasure Island. The beach events the City hosts occur seaward of that line. Before hosting those events, therefore, the City has applied for and obtained coastal construction control line permits from the department. Prior to January 2014, it received field permits-which are issued for minor structures and activities-for all but two of its events. See Fla. Admin. Code R. 62B-33.008(10) (2014). Those field permits approved the events specified on a site plan submitted by the City and authorized the City to conduct them.

For the two events that did not receive field permits and for every event the City has hosted since January 2014, the department has required that the City obtain individual coastal construction control line permits. The City has filed permit applications on a form provided by the department in accord with regulations promulgated by the department. See generally id. R. 62B-33.008. Those applications describe the event and activities to take place and include a site plan. The department has approved each of the City's applications, subject to general conditions included in every permit and sometimes special conditions specific to the event being permitted.

As an example, the City applied for a permit for "The Greatest Show on Surf" to be held in March 2014. The application for the permit described the event as including "carnival rides, food & non-food vendors, stage for live entertainment, and parking on the beach." It specified the dates of the event, as well as the dates for set up and break down, and included a site plan. After reviewing the application, the department advised the City that its permit application was approved and then issued a notice to proceed stating that the City "is authorized to arrange carnival rides, food and non-food vendors, stage live entertainments and parking." The event was permitted to be held on the nonvegetated beach and to be located 290 feet seaward of the coastal construction control line. It was subject to the general conditions, among others, that "[c]onstruction traffic shall not occur ... on vegetated areas seaward of the coastal construction control line unless specifically authorized by the permit."

Part III and the regulation of vehicular traffic on coastal beaches. In 1985, the legislature added part III to chapter 161, which is known as the Coastal Zone Protection Act of 1985. § 161.52, Fla. Stat. (1985). In passing it, the legislature recognized that coastal areas serve important aesthetic, ecological, and public health, safety, and welfare functions and have become subject to increasing growth pressures. See generally § 161.53(1)-(5). Its stated intent is "that the most sensitive portion of the coastal area shall be managed through the imposition of strict construction standards in order to minimize damage to the natural environment, private property, and life." § 161.53(5), Fla. Stat. (2014).

Part III serves that objective by establishing minimum standards governing the location of construction in coastal areas and mandating that any such construction produce the "minimum adverse impact" on the "beach" and "dune system." See § 161.55(1). Part III provides that these minimum construction standards do not "limit or abrogate the right and power of the department to require permits or to adopt and enforce standards pursuant to [part I] for construction seaward of the coastal construction control line that are as restrictive as, or more restrictive than" the minimum construction standards in part III. § 161.56(1). It also provides for enforcement of those minimum standards and requires sellers of coastal properties subject to part III to make disclosure to buyers of the regulations governing them. See §§ 161.56(2), .57.

Part III also contains the provision at issue here- section 161.58. That statute provides as follows:

(1) Vehicular traffic, except that which is necessary for cleanup, repair, or public safety, and except for traffic upon authorized local or state dune crossovers, is prohibited on the dunes or native stabilizing vegetation of the dune system of coastal beaches. Except as otherwise provided in this section, any person driving any vehicle on, over, or across any dune or native stabilizing vegetation of the dune system shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Vehicular traffic, except that which is necessary for cleanup, repair, or public safety, or for the purpose of maintaining existing licensed and permitted traditional commercial fishing activities or existing authorized public accessways, is prohibited on coastal beaches except where a local government with jurisdiction over a coastal beach or portions of a coastal beach has:
(a) Authorized such traffic, by at least a three-fifths vote of its governing body, on all or portions of the beaches under its jurisdiction prior to the effective date of this act; and
(b) Determined, by October 1, 1989, in accordance with the rules of the department, that less than 50 percent of the peak user demand for off-beach parking is available....
(3) A local government authorizing such vehicular traffic on all or portions of its beaches pursuant to subsection (2) may later prohibit, by a vote of at least three-fifths of its governing body, such vehicular traffic on all or portions of the beaches under its jurisdiction. Any such local government shall be authorized by a three-fifths vote of its governing body to charge a reasonable fee for vehicular traffic access. The revenues from any such fees shall be used only for beach maintenance; beach-related traffic management and parking; beach-related law enforcement and liability insurance; or beach-related sanitation, lifeguard, or other staff purposes. Except where authorized by the local government, any person driving any vehicle on, over, or across the beach shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(Emphasis added.) As we describe in greater detail below, the Hoteliers' assertion that the beach driving and parking taking place in connection with the City-sponsored activities at issue requires that we consider whether activities permitted by the department under part I are restricted by prohibition on vehicular traffic in part III.

The Movement Of Vehicles Incident To Department-Permitted Construction And Activities Does Not Involve Vehicular Traffic; The Movement Of Vehicles Incident To City-Operated Public Parking Areas Does

The final judgment invalidates and prohibits any "vehicular parking and driving" on Treasure Island Beach, except as authorized by section 161.58. That implies a definition of "vehicular traffic" that reaches any movement of vehicles across Treasure Island Beach. The City, however, contends that the term "[v]ehicular traffic" as used in section 161.58 refers only to "Daytona Beach-style driving" and that the City's events and the associated public parking do not involve that kind of activity. The City does not define its term "Daytona Beach-style driving," but its argument implies a condition in which a local government allows the public to use the beach as a public street, cars drive on the beach using established lanes for everyday use, and cars are also permitted to park on the beach. We agree that the statutory term "[v]ehicular traffic" is limited to the movement of vehicles as along a public street, but we disagree that it is also limited to the unique features of Daytona Beach-style driving.

In interpreting a statute, we look first to "the plain meaning of the actual language" contained in the statutory text. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla. 2013). If that language is unambiguous, there is no need for further construction; the plain meaning of the statute controls. See Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984). If the statutory language is ambiguous, however, we turn to rules of statutory construction to determine its meaning. English v. State, 191 So.3d 448, 450 (Fla. 2016). We regard statutory language as ambiguous when it is reasonably susceptible of more than one interpretation. See License Acquisitions, LLC v. Debary Real Estate Holdings, LLC, 155 So.3d 1137, 1146 (Fla. 2014).

We begin by noting that the term "[v]ehicular traffic" is not statutorily defined and that nothing in section 161.58 or the related statutes indicates that it carries particular, specialized meaning. We must therefore try to give the term the meaning it has in ordinary, everyday discourse. See Donato v. Am. Tel. & Tel. Co. , 767 So.2d 1146, 1154 (Fla. 2000) ; Am. Heritage Window Fashions, LLC v. Dep't of Revenue, 191 So.3d 516, 520 (Fla. 2d DCA 2016). For our purposes, the word "vehicular" is plain enough: It means involving vehicles. Here we are talking about cars and trucks, and everyone in this case agrees that those are types of vehicles. The interpretive problem we must address hinges on the word "traffic."

Sources that convey the ordinary meaning of the term "traffic" support both the notion that as used in section 161.58, traffic involves any movement of vehicles in an area and the notion that traffic means the movement of vehicles as along a street or highway. See Webster's Third New International Dictionary 2423 (1986) (defining "traffic" variously as "the circulation (as of vehicles or pedestrians) through an area" and "the flow of vehicles, pedestrians, ships, or planes (as along a street or sidewalk or sea lane)); Traffic , Black's Law Dictionary (5th ed. 1979) (defining "traffic" as "the passing to and fro of persons, animals, vehicles, or vessels, along a route of transportation, as along a street, highway, etc."); see also Dictionary.com, Dictionary.com Unabridged, http://www.dictionary.com/browse/traffic (last visited Oct. 25, 2017) (defining "traffic" as "the movement of vehicles, ships, persons, etc., in an area, along a street, through an air lane, over a water route, etc."). To the extent the term "traffic" refers to movement as along a street or highway, those sources also support the notion that it refers to the movement of vehicles as along a way that is open for use by the public. See Webster's Third New International Dictionary 1069, 2259 (1986) (defining "street" as "a public thoroughfare" or "the strip of a public thoroughfare reserved for vehicular traffic" and defining "highway" as "a road or way ... that is open to public use").

In terms of ordinary meaning, then, the term "vehicular traffic" could reasonably be understood to mean any movement of vehicles or the movement of vehicles as along a public thoroughfare. Both meanings are facially consistent with the purpose of section 161.58 conveyed by its text-the protection of the beach, dunes, and stabilizing vegetation from harm caused by vehicles-and nothing in that text indicates which meaning was the one adopted by the legislature. The statute is therefore ambiguous, and we must turn to rules of statutory construction to resolve which of these two interpretations of the term is the one the legislature meant.

We are confident that vehicular traffic denotes the movement of vehicles as though it were happening along a public street or highway. We reach that conclusion because the alternative-the interpretation that vehicular traffic reaches any movement of vehicles-would put section 161.58's regulation of vehicular traffic on coastal beaches in substantial conflict with the authority granted the department in part I to authorize by permit construction and other activity on those same beaches.

As we have described, part I of chapter 161 was the first-adopted set of statutes bearing on beach and shore protection, and it prohibited construction and other activities seaward of the coastal construction control line without a permit, which it in turn authorized the department to grant. See § 161.053(2)(a), (4)(a). Thus, if the City wants to host a carnival on Treasure Island Beach, it must apply for a permit authorizing those activities and any construction they involve, and the department enjoys the statutory authority to grant that permit if it makes the required determinations.

Section 161.58 was enacted years after part I as one section of part III and operates, among other things, as a limit on the department's permitting authority. Whatever construction and activities the department might be authorized to permit seaward of the coastal construction control line in part I, it cannot permit vehicular traffic on the dunes and native stabilizing vegetation of coastal beaches or the coastal beaches themselves because section 161.58 bans those activities subject to a handful of exceptions. Because the legislature did not include "as permitted by the department" as an exception to section 161.58's prohibitions on vehicular traffic on the beaches and dunes, we must conclude that the statute contains no such exception. See Hayes v. State, 750 So.2d 1, 4 (Fla. 1999) ("We are not at liberty to add words to statutes that were not placed there by the [l]egislature.").

Interpreting section 161.58's prohibitions on vehicular traffic to reach any movement of vehicles on the dunes or beach, however, would effectively repeal much of the statutory authority granted to the department in part I to permit construction and other activities seaward of the coastal construction control line. The department's authority to permit construction and activity on beaches and dunes seaward of the control line necessarily includes the authority to permit the movement of vehicles necessary to enable that construction or activity because "[a] statutory grant of power or right carries with it by implication everything necessary to carry out the power or right and make it effectual and complete." Brock v. Bd. of Cty. Comm'rs of Collier Cty., 21 So.3d 844, 847 (Fla. 2d DCA 2009) (quoting Deltona Corp. v. Fla. Pub. Serv. Comm'n, 220 So.2d 905, 908 (Fla. 1969) ); see also McNeill v. Pace, 69 Fla. 349, 68 So. 177, 178 (1915) ("Statutory powers expressly conferred carry with them by implication of law all consistent powers that are necessary to the effectual execution of the powers expressly conferred.").

This makes perfect sense. The department's authority to permit a carnival on the beach seaward of the control line, for example, is meaningless if it does not also include the power to allow vehicles to move onto that area of the beach for purposes of carrying tents and rides, moving equipment, providing concessions, and all other things that go into hosting a carnival. If the term "[v]ehicular traffic" in section 161.58 reaches any movement of vehicles, however, the department's authority to permit construction seaward of the control line will be substantially eliminated.

Established principles of statutory construction counsel strongly against that result. "[I]t is an accepted maxim of statutory construction that a law should be construed together and in harmony with any other statute relating to the same purpose, even though the statutes were not enacted at the same time." Wakulla Cty. v. Davis, 395 So.2d 540, 542 (Fla. 1981) ; see also McDougall v. Van House, 801 So.2d 118, 121 (Fla. 2d DCA 2001). For that reason, "[c]ourts should avoid a construction which places in conflict statutes which cover the same general field." City of Boca Raton v. Gidman, 440 So.2d 1277, 1282 (Fla. 1983) ; McDougall, 801 So.2d at 121.

Relatedly, it is also "presumed that statutes are passed with the knowledge of existing statutes, so courts must favor a construction that gives effect to both statutes rather than construe one statute as being meaningless or repealed by implication." Butler v. State, 838 So.2d 554, 556 (Fla. 2003). Thus, "[w]hile it is true that a prior Act may be repealed in part, or in toto by implication through the passage of a subsequent Act, such repeals are not favored and there must be a positive repugnancy between the two or a clear intent to repeal must be apparent." Wade v. Janney, 150 Fla. 440, 7 So.2d 797, 798 (1942) (citation omitted); see also Alvarez v. Bd. of Trs. of City Pension Fund for Firefighters & Police Officers in City of Tampa, 580 So.2d 151, 153 (Fla. 1991).

Here, we are presented with two enactments related to the same subject matter-the protection of Florida's coastal areas. Some conflict between the two may be inevitable because section 161.58 prohibits vehicular traffic on coastal beaches and the dunes and native stabilizing vegetation regardless of how far the department's coastal construction permitting authority might reach. But construing the term "vehicular traffic" to mean the movement of vehicles as along a public road or highway, as opposed to merely any movement of vehicles, is both consistent with the ordinary meaning of the term "traffic" and limits the conflict between part I and section 161.58 to a minimum. It gives meaningful effect to both statutes and allows both to exist harmoniously to the maximum extent possible consistent with the ordinary meaning of the term "vehicular traffic."

This interpretation also makes sense of section 161.58 within the overall context of part III of chapter 161. See Cepcot Corp. v. Dep't of Bus. & Prof'l Regulation, 658 So.2d 1092, 1095 (Fla. 2d DCA 1995) ("A statute should be construed in its entirety and within the context provided by the related statutes within the same act."). Part III establishes minimum standards for certain coastal construction and provides that nothing in those standards-including section 161.58's prohibition on vehicular traffic-provides for the department to continue to issue coastal construction control line permits on terms as or more restrictive than those minimum standards. Thus, the Act allows construction seaward of the coastal construction line, and it preserves the department's permitting authority under part I so long as it is exercised in a manner consistent with the minimum standards the act establishes. When it passed section 161.58, therefore, the legislature was aware that coastal construction would continue and that the department would retain its permitting authority. An understanding of the term "vehicular traffic" that would ban all movement of vehicles on the dunes and beach-even movement of vehicles necessary to the construction part III itself allows-is inconsistent with the other provisions of part III. Instead, vehicular traffic should be understood as referring to the movement of vehicles as along a public street or highway.

Applying that understanding, the trial court erred in declaring that any "vehicular parking and driving" on Treasure Island Beach violates section 161.58, in declaring that the City's ordinance governing driving and parking on the beach is invalid, and in enjoining any parking or driving on the beach. It is clear beyond dispute that many aspects of the events the City hosts involve "vehicular parking and driving" on the beach that is limited to a defined category of people far narrower than the public, that is limited to the pursuit of activities permitted by the department, and that cannot be said to involve the use of the beach as though it were a public thoroughfare. The driving of vehicles across the beach to move and set up a stage for a concert, the driving and parking of a food truck to provide food and drink at an event, or the driving of a vehicle to haul away a carnival tent are all examples of "vehicular parking and driving" that do not involve the use of a beach as a public highway. To the extent the trial court's ban on "vehicular parking and driving" reaches these kinds of activities, it must be reversed.

The City's operation of public parking areas presents a different matter. We agree with the City that parking a vehicle-leaving it stationary for a period of time-does not alone constitute vehicular traffic because parking in and of itself does not involve the movement of a vehicle. However, access to the parking areas the City operates is along two paths that cross the dunes and beach and that are open to the public for purposes of reaching the beach parking areas and are regulated as though they were public ways. That activity does involve the use of a portion of beach as though it were a public street-members of the public drive across it for purposes of getting from point A to point B on the beach-and thus does involve vehicular traffic.

The City argues that section 161.58 was intended only to reach "Daytona Beach-style driving," a characterization it says does not apply to cars driving over access paths to use parking areas. Limiting the scope of vehicular traffic to Daytona Beach-style driving is not a reasonable construction of section 161.58. There are a number of atypical aspects to Daytona Beach-style driving-for example, the large number of cars, the regularity of the use of the beach as a roadway, the existence of established lanes of traffic, and routinized enforcement. Yet, there is nothing in the text of section 161.58, the ordinary meaning of the term "vehicular traffic," or the context of the Coastal Zone Protection Act to support the notion that the vehicular traffic prohibited by the statute exists only when one or more of the conditions descriptive of Daytona Beach-style driving exists. On the contrary, the purpose that the text of the section 161.58 quite plainly evinces (a purpose to avoid harm to dunes and beaches as a consequence of vehicles being driven over them) implies that we should not narrow the scope of its term "[v]ehicular traffic" from the scope that its ordinary meaning (the movement of vehicles as though the beach or a portion of it was a public street) establishes.

Additionally, when read in the context of section 161.58 as a whole, as we must when interpreting a statute, the City's proposed limitation on the scope of the term "[v]ehicular traffic" does not make sense. See Ratliff v. State, 56 So.3d 918, 919 (Fla. 2d DCA 2011) ("Further, each statute 'must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts.' " (quoting Lamar Outdoor Advert.-Lakeland v. Dep't of Transp., 17 So.3d 799, 802 (Fla. 1st DCA 2009) )). The statute both prohibits vehicular traffic on coastal beaches and dunes and native stabilizing vegetation and subjects to prosecution for a second-degree misdemeanor "any person driving any vehicle on, over, or across" them. § 161.58(1), (2), (3). Given their placement in the same statute regulating the same activity, we should interpret the statutory prohibition on vehicular traffic as being coterminous with these criminal enforcement mechanisms. Cf. Payne v. State, 873 So.2d 621, 622 (Fla. 2d DCA 2004) ("In construing two subsections of the same statute, we read the subsections in pari materia.").

When vehicular traffic is understood as moving a vehicle on the beach or a portion thereof as though it was a public way, both the general prohibition and criminal provisions easily make sense as a unified whole: The statute generally prohibits using the beach as though it was a public street, and someone driving on the beach in that manner is subject to prosecution. Limiting the term to Daytona Beach-style driving, however, makes a muck of the criminal enforcement provisions. It is nearly impossible to consider Daytona Beach-style driving as an offense that can be committed by an individual driver because Daytona Beach-style driving does not connote individual conduct; it connotes a state of affairs marked by the characteristics of the movement of vehicles along Daytona Beach. And even if the concept could be understood to refer to the conduct of an individual as distinguished from a state of affairs, the offense seems just as impossible to define. Try as we might, for example, we cannot conceive of what a jury would have to find to convict a defendant of Daytona Beach-style driving.

For these reasons, limiting the reach of section 161.58 to Daytona Beach-style driving is not a reasonable construction of the statute. As used in that statute, "[v]ehicular traffic" means the movement of vehicles as along a public street or highway.

The Injunction Is Overbroad In Other Respects

In addition to prohibiting the movement and parking of vehicles that does not constitute vehicular traffic within the meaning of section 161.58, the final judgment's categorical ban on hosting or allowing any vehicular driving and parking on the beach reaches potential activity (or, in the case of "allowing," mere inactivity) that is unrelated to the civic events that are the subject of this litigation and that may well be legal. Such relief is also well beyond the scope of the operative complaint, the Hoteliers' summary judgment motions, and the summary judgment record-all of which are focused on the legality or illegality of parking and driving on the central beach area of Treasure Island Beach in connection with the civic events about which the Hoteliers complain. Apart from declaring illegal and enjoining activities that do not constitute vehicular traffic, then, the trial court also erred in awarding the Hoteliers a substantially overbroad injunction. See, e.g., Smith v. Wiker, 192 So.3d 603, 604 (Fla. 2d DCA 2016) ("[A] court should not issue an injunction broader than necessary to protect the injured party under the particular circumstances."); see also Brower v. Hubbard, 643 So.2d 28, 30 (Fla. 4th DCA 1994) ("Injunctions must be specifically tailored to each case; they should not infringe upon conduct that does not produce the harm sought to be avoided."); Clark v. Allied Assocs., Inc., 477 So.2d 656, 657 (Fla. 5th DCA 1985) ("An injunctive order should never be broader than is necessary to secure the injured party ... relief warranted by the circumstances of the particular case.").

Conclusion

We find no error in the trial court's determination that the City's actions in hosting vehicular traffic across the beach for purposes of reaching the parking areas associated with the civic events on the central beach area of Treasure Island Beach violate section 161.58(2). The trial court went too far, however, to the extent it declared any additional conduct illegal, declared the City's ordinance invalid, and enjoined the City from "hosting or allowing" any "vehicular parking and driving on Treasure Island Beach." We reverse the final judgment to that extent, affirm it in all other respects, and remand the case for further proceedings consistent with this opinion. To the extent those proceedings are directed only toward modifying the final judgment to conform to our holdings today, any declaratory and injunctive provisions of that judgment should extend no further than declaring illegal and enjoining the conduct identified by this opinion as vehicular traffic on the central beach area of Treasure Island Beach in connection with the events that are the subject of the Hoteliers' complaint.

Affirmed in part; reversed in part; remanded.

KELLY and WALLACE, JJ., Concur.

      We reject without comment the City's remaining appellate arguments. In addition, we note that the Hoteliers did not plead a violation of section 161.58(1) concerning vehicular traffic on the dunes and native stabilizing vegetation of the dune system of coastal beaches in their complaint. Accordingly, we express no opinion on whether or to what extent that subsection is implicated by the facts here.

      These are questions of statutory construction resolved by way of motions for summary judgment. Our review is de novo. See Dep't of Transp. v. United Capital Funding Corp., 219 So.3d 126, 129 (Fla. 2d DCA 2017).

      We recognize that dictionaries are only one permissible indicator of the ordinary meaning of a term. See Green v. State, 604 So.2d 471, 473 (Fla. 1992). Here, we have no reason to believe that the term "traffic" bears some other relevant ordinary meaning that is not revealed by these dictionary definitions. See, e.g., § 316.003(57), Fla. Stat. (2014) (similarly defining the word "traffic" within the chapters on motor vehicles).

      The City argues that the legislature must have meant vehicular traffic to mean "Daytona Beach-style driving" because a supreme court decision shortly before section 161.58 was adopted described Daytona Beach-style driving using the term "vehicular traffic." But the context there-a tort claim against the City of Daytona Beach by an injured sunbather-was so different that it would be speculation to say that the legislature plucked the term "vehicular traffic" from that case and intended it to have that and only that meaning. See Ralph v. City of Daytona Beach, 471 So.2d 1, 3 (Fla. 1983) ("While the fact of vehicular traffic on the beach was widely-known, it was not readily apparent to sunbathers ... that this lethal mixture of cars and reclining persons was inadequately supervised."). The City also points to a staff analysis underlying the Coastal Zone Protection Act that noted in one place that section 161.58 sought a "tightening of criteria allowing driving on the beach" and in another that beach driving was allowed in certain northeast Florida counties. See Fla. H.R. Comm. Nat. Res., HB 118 (1988) Staff Analysis 2 (July 1, 1988). We do not need to resort to staff analyses to reach our conclusion here. See Kasischke v. State, 991 So.2d 803, 810 (Fla. 2008) (questioning utility of staff analyses for this purpose). Even if we were to rely on this staff analysis to determine the meaning of a statutory term, the language to which the City points does not command an inference that the legislature intended to limit the scope of the term "vehicular traffic" to Daytona Beach-style driving.

      Accordingly, we reject the City's argument that because section 161.58 contains penal provisions, the rule of lenity requires that it be construed in its favor. See Paul v. State, 129 So.3d 1058, 1064 (Fla. 2013) ("This rule of lenity is a canon of last resort and only applies if the statute remains ambiguous after consulting traditional canons of statutory construction.").

      We have not considered whether there is any way in which the City could host parking on the beach in a manner that would not involve vehicular traffic in violation of section 161.58. Our opinion should not be understood as expressing any view on that question.