On November 24, 2014, attorney Scott Konopka defeated a Motion for Summary Judgment in a dispute over a large marina in Stuart, Florida. The firm represents the City of Stuart in a lawsuit against the owner of the marina regarding the use and development of the 300+ slip marina project and nine condominium buildings. At issue in the lawsuit is whether the marina developer violated the City’s Development Order by building additional boat docks and leasing boat slips to live aboard boaters, among other things. The developer argued that the City’s Development Order did not specifically mention, let alone bar, live aboard boaters, and the merger doctrine prevented the City from relying upon any discussions about live aboard boaters that were not contained in the City’s Development Order. The developer reasoned that even if the parties discussed a ban on live aboard boaters, the City of Stuart was not permitted to rely upon representations that were not contained in the Development Order as such discussions were “merged” into the agreement. In response, Konopka argued that the Development Order contained a latent ambiguity in stating that the “subject use” was approved. Konopka reasoned that the approval was based upon specific uses disclosed to the City, but not specifically identified in the Development Order as to the marina, and these uses were vaguely referenced in the Development Order as “the subject use.” The court agreed that this language created a latent ambiguity, and therefore denied the Defendants’ motion for summary judgment.

The developer also argued that the maxim “expressio unius est exclusio alterius” compelled the court to enter summary judgment for the developer. This maxim is used as a cannon of statutory interpretation, and means “the expression of one thing excludes things not mentioned.” The developer argued that the expression of permitted construction excludes the prohibition of unstated uses. Konopka argued that this cannon of statutory interpretation was not applicable to a Development Order, and that Defendants’ attempt to use a cannon of statutory interpretation illustrated that even the Defendants agreed that the Development Order was susceptible to differing interpretations. If it were clear on its face, Defendants would not need to ask the court to interpret it using a rule of statutory construction. The court agreed with Konopka that this doctrine did not apply and did not cure the latent ambiguity in the Development Order.

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