Kim v. Galasso

348 So.3d 1183

Lee Te KIM, Appellant,

v. Courtney GALASSO, individually and as Trustee of the Clarence E. Leisey, III Revocable Trust, Appellee/Cross-Appellee.andRobert Pittman, Jr., Appellee,andAGP Ruskin, LLC, Appellee/Cross-Appellant.

No. 2D20-3313

District Court of Appeal of Florida, Second District.

August 3, 2022

Alec D. Russell of GrayRobinson, P.A, Melbourne; and Paul E. Parrish of Parrish Law, P.A., Satellite Beach, for Appellant.

Chance Lyman and Joshua S. M. Smith of Buchanan Ingersoll & Rooney PC, Tampa, for Appellee/Cross-Appellee Courtney Galasso, individually and as Trustee of the Clarence E. Leisey, III Revocable Trust.

Dean A. Morande of Carlton Fields, P.A., West Palm Beach; and Christopher W. Smart of Carlton Fields, P.A., Tampa, for Appellee/Cross-Appellant AGP Ruskin, LLC.

Mark M. Wall and A. Evan Dix of Hill, Ward & Henderson, P.A., Tampa, for Appellee Robert Pittman, Jr., and Appellee/Cross-Appellant AGP Ruskin, LLC.

MORRIS, Chief Judge.

Lee Te Kim appeals an amended final summary judgment entered in favor of defendants Courtney Galasso, individually and as trustee of the Clarence E. Leisey, III Revocable Trust; Robert Pittman, Jr.; and AGP Ruskin, LLC (AGP), on Kim's complaint for declaratory judgment, injunctive relief, conversion, civil theft, and civil conspiracy. AGP cross-appeals the dismissal of its cross-claim against Galasso for indemnification and advancements based on a warranty deed of sale. For the reasons explained herein, we affirm the amended final summary judgment as it relates to Kim's complaint. However, we reverse the amended final summary judgment as it relates to AGP's cross-claim against Galasso.

I. Background

In March 2019, Kim filed the instant action against Galasso, Pittman, and AGP. Kim alleged that he owned over $1 million worth of palm trees that were planted on land sold by Galasso to AGP, an entity created by Pittman for the purchase of the land. Kim alleged that he was friends and business partners with landowner Clarence E. Leisey, III, for twenty years. Around 2004, Leisey and Kim agreed to operate a palm tree nursery on Leisey's land located on 19th Avenue. Leisey would provide the land, and Kim would provide the trees. The partners would each contribute fifty percent of the labor and expense of maintaining the trees and property, and they would each receive fifty percent of the proceeds when the trees were sold. Apparently, this agreement or partnership was never reduced to writing.

In late 2004 or early 2005, Kim and Leisey set up a second tree nursery on Leisey's other property located on Gulf City Road, the property at issue in this case. They maintained the same arrangement for this nursery as they did for the 19th Avenue nursery; Leisey would provide the land, Kim would provide the trees, and they would share the responsibility and the proceeds. Kim alleged that he had grown and cultivated the trees for years before he transplanted them in the ground on the Gulf City Road property. Again, this second phase of the agreement or partnership was never reduced to writing.

Kim and Leisey managed the two nurseries until September 21, 2011, when they discontinued their partnership. This time, Leisey and Kim signed a letter that provides as follows:

The partnership between Lee Te Kim and Clarence Leisey III has been dissolved as of September 30, 2011.

Mr. Leisey III will keep his property on 19th Avenue and all the trees on the property. Mr. Lee Te Kim will no long [sic] have any responsibility for any of these trees.

Mr. Lee Te Kim will have sole ownership of only the trees at ... Gulf Road and Mr. Leisey will still have ownership of the property and be responsible for all taxes on the property.... Starting in January 2015, Mr. Lee Te Kim will have to pay $3,000 per year rent on the property.

On May 2, 2016, Leisey conveyed the Gulf City Road property to his trust. Later that month, Leisey died. On June 27, 2017, Galasso, as the successor trustee of the trust, sold the Gulf City Road property to AGP, which was created by Pittman for the purpose of purchasing the property. The deed does not provide that the trees are separate from the land, and AGP and Galasso claimed that the trees were part of the real estate and that AGP took ownership of the trees as a result of the land purchase.

Kim filed the instant action against the defendants in March 2019 asserting counts for declaratory judgment, injunctive relief, conversion, civil theft, and civil conspiracy.¹ AGP filed a cross-claim against Galasso for indemnification and advancements based on the warranty deed of sale executed when AGP bought the land from the trust.

The defendants filed motions for final summary judgment, joining in each other's motions, arguing that the trees were part of the realty and that no legal exceptions apply to the facts of this case. Lee filed a written response and supporting affidavit, claiming that he had leased Leisey's property and was growing trees on the property as a tenant. At a hearing on the summary judgment motions, the defendants argued that the 2011 agreement does not satisfy the statute of frauds and is not legally sufficient to support Kim's theories that the trees do not follow the land and that he leased the land from Leisey to grow the trees. The defendants also argued that to the extent the 2011 agreement served as a license for Kim to grow and use the trees, the license was revoked at the time of Leisey's death. Kim argued that he had an oral lease with Leisey to use the land to plant and grow the trees; Kim claimed that a written lease had recently been discovered but acknowledged that the written lease had not been attached to the complaint. Kim argued that he was not suing for breach of the lease but for conversion.

At the conclusion of the hearing, the trial court granted the defendants' motions for summary judgment, orally ruling that the lease does not satisfy the statute of frauds and that any license terminated at the time of Leisey's death. The court further ruled that the trees became part of the realty when they were planted and that the 2011 agreement did not satisfy the statute of frauds because it was not signed by two witnesses. The court also noted that while the agreement provided that the trees would be Kim's when they were severed from the land, the trees were never severed from the land. The trial court entered a written order providing, in relevant part, as follows:

4. The case proceeded initially as a licensing agreement and, as was argued by counsel, if it were indeed involving a license, the license would terminate at the time of the death of the party granting the license and at the subsequent transfer of ownership.

5. The Court finds there is no genuine issue of material fact and based upon the holdings in the case of Jenkins v. Lykes , 19 Fla. 148 (Fla. 1882) [,] and other cases, that once the trees are planted they become realty.

6. The agreement between the landowner and [Kim] was not witnessed by two parties and, therefore, could not provide a legal basis as any type of contract pertaining to real estate.

7. The Court also finds that these trees do not fall within the exception that perhaps was addressed in the case of Summerlin v. Orange Shores , 122 So. 508 (Fla. 1929) [,] because these are not fruit-bearing trees, they were regular trees that were planted for the purpose of providing timber, and once they were planted became part of the real estate.

8. Further, the letter of agreement between the landowner and [Kim] said that the trees will become property of [Kim] once they were severed from the land. At the time of the transfer, there had not been any severance, so, therefore, the trees were owned by the owner of the property.

9. As such, final summary judgment is hereby entered in favor of Defendants against [Kim].

10. AGP Ruskin's Counterclaims for unjust enrichment against [Kim] and its cross-claim against Defendant Galasso are disposed of as moot.

AGP moved for rehearing, arguing that its cross-claim against Galasso was not the subject of the summary judgment motions and that it was not moot because AGP is entitled to attorneys' fees incurred in defending Kim's claim. Galasso responded that the warranty deed only applied to lawful claims. After a hearing, the trial court denied AGP's motion for rehearing relating to its cross-claim. The trial court entered an amended final summary judgment.²

II. Analysis

On appeal, Kim argues that the trial court erred in applying the ancient rule that "whatever is affixed to the soil belongs to the soil" without considering modern exceptions. He contends that Florida recognizes that the trees do not become part of the realty unless the owner of the trees intends them to become part of the realty.

"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia County v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000) (citing Menendez v. Palms W. Condo. Ass'n , 736 So. 2d 58 (Fla. 1st DCA 1999) ). "Thus, our standard of review is de novo." Id.

Generally, "[a]t common law and by Florida case law[,] standing timber was regarded as an interest in realty." Ga.- Pac. Corp. v. Dep't of Revenue , 410 So. 2d 550, 551 (Fla. 1st DCA 1982) (first citing Walters v. Sheffield , 75 Fla. 505, 78 So. 539 (1918) ; then citing Richbourg v. Rose , 53 Fla. 173, 44 So. 69 (1907) ). Further, "[c]rops of fruit growing on trees, whether regarded as fructus naturales or fructus industrials, are in general parts of the realty, and, unless reserved, go with the realty in its transfer." Simmons v. Williford , 60 Fla. 359, 53 So. 452, 453 (1910). And where crops are planted on leased property, "until they reach the point of severance at maturity, the crops inhere in the land on which they are growing." Lee County v. T & H Assocs. , 395 So. 2d 557, 560 (Fla. 2d DCA 1981) ; cf. Dep't of Agric. & Consumer Servs. v. Mid-Fla. Growers,...