43
Fla. L. Weekly D218aTop of Form

Real
property — Declaratory judgment action seeking declaration of right of unit
owners to access and use dock located behind defendant’s waterfront property —
Trial court erred by dismissing declaratory judgment action and failing to
determine parties’ rights to dock — Because defendant severed his riparian
rights in quitclaim assignment, plaintiffs have a right to use a portion of the
dock — Plaintiffs do not have the right to access the dock by way of an
easement by necessity across defendant’s property, as plaintiffs have alternate
means of accessing the dock so that an easement by necessity is not an absolute
necessity

WAYNE GOLDMAN, MARIANNE GOLDMAN and
SEAN ACOSTA, Appellants, v. STEPHEN LUSTIG, Appellee. 4th District. Case No.
4D16-1933. January 24, 2018. Appeal and cross-appeal from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr., Judge;
L.T. Case No. 07-019309. Counsel: Matthew P. Leto of Hall, Lamb, Hall & Leto,
P.A., Miami, for appellants. Andrew J. Baumann and Telsula C. Morgan of Lewis,
Longman & Walker, P.A., West Palm Beach, for appellee.

CORRECTED
OPINION

(FORST, J.) In a case of “what’s up,
dock?,” both Appellants Marianne Goldman, Wayne Goldman, and Sean Acosta (“Unit
Owners”)1 and Appellee/Cross-appellant Stephen
Lustig seek a declaration of their rights to a dock located behind Lustig’s
property. As set forth below, we find that the trial court should have
determined the parties’ rights and, upon adjudication of those rights, should
have found that Unit Owners were entitled to use a portion of the dock, but
were not entitled to access that dock by way of an easement by necessity. We
reverse and remand for the trial court to amend its final judgment consistent
with this opinion.

Background

This case involves a multi-year
dispute over the right to use and access a wooden dock located behind Lustig’s
waterfront property. In 2007, Unit Owners filed a complaint seeking a
declaration of their right to use a portion of that dock, as well as a
permanent injunction to prevent Lustig from prohibiting their continued use of
the dock. Unit Owners and Lustig lived in a community called 900 Hillsboro
Mile, located in Broward County. Blue Paper, Inc. originally developed the
community. It is comprised of four separate townhouse units, common areas, and
a dock located behind the first unit. The Declaration of Covenants and
Restrictions (“Declaration”) for 900 Hillsboro Mile established a homeowner’s
association (“Association”). In their complaint, Unit Owners explained that the
Association and Lustig entered into a quitclaim assignment (“Assignment”) in
which Lustig expressly severed his riparian rights to a portion of the dock.

Lustig answered and filed his
counterclaim. He also sought a declaratory judgment that would detail his
rights to the dock behind his unit, and requested a permanent injunction to
enjoin Unit Owners from using any portion of the dock as well as accessing it
from his property.

After years of litigation, the
parties attended a bench trial in 2014. Lustig argued that he was entitled to
exclusive possession and control of the dock by way of his special warranty
deed. He admitted it was true that plans for 900 Hillsboro Mile originally
demonstrated that there would be two different access piers connecting to one
horizontal strip of the dock, such that both Lustig and Unit Owners would use
the dock. However, he explained that those plans since changed. He then
addressed the Assignment, and argued it was invalid because the Association did
not have the authority under the Declaration to assign any dockage rights.

In rebuttal, Unit Owners pointed to
the Assignment, where “Mr. Lustig . . . recognized [that] his right to use the
dock consisted only [of] 44 feet of dock located in the outside northwest
corner of the dock, as described in the attached drawing on the dock.” Unit
Owners then explained that the original license for the dock, issued by the
Broward County Department of Planning and Urban Protection, stated the dock was
“for a multi-family unit, or units in question.”

Lustig then testified. During direct
examination, he added that he should have exclusive possession and control of
the dock because, years earlier, the Florida Department of Environmental
Protection (“DEP”) declined to grant a request for a license that would allow
the Association and Unit Owners to construct a marginal dock in addition to the
already existing dock. Lustig noted how DEP “specifically said that they [the
Association] need my consent to build the dock.” However, later during
cross-examination, he stated that “I’m contending that I own the vertical piece,
and the horizontal piece to a certain point.” He further agreed with Unit
Owners’ counsel that Unit Owners “have the rest of the dock,” but that “they
just can’t get to it.” He explained he would have no problem with Unit Owners
having a portion of the dock, as long as they built their own pier to access
that dock: “They can [use their portion of the dock] if they build a pier, and
I have no objection to that . . . . They can get to what they own on their own
manner.”

After trial, the trial court entered
its written final judgment, dismissing both Unit Owners’ complaint and Lustig’s
counterclaim, and concluding that “no party prevailed.” Both parties appeal
that final judgment.

Analysis

A. Dockage Rights

We generally review an order
dismissing a declaratory action for an abuse of discretion. Acad. Express,
LLC v. Broward Cty., 53 So. 3d 1188, 1190 (Fla. 4th DCA 2011). “However, to
the extent that the dismissal is based upon a legal determination, our review
is de novo.” Bloch v. Del Rey, 208 So. 3d 189, 192 (Fla. 3d DCA 2016).

The parties agree that the trial
court erred by failing to determine the parties’ rights to the dock, and that
this Court can adjudicate the matter on appeal. The Unit Owners maintain that
Lustig clearly and unambiguously severed his riparian rights and agreed not to
impede or interfere with the riparian rights of the Unit Owners when he
executed the Assignment, as the Assignment contemplated that Lustig could only
use a forty-four-foot strip of that dock, and that the Unit Owners had a right
to use the remaining portion. Lustig argues that only he has any rights to the
dock and the Assignment was invalid as a matter of law because the Association
could not assign any rights. Moreover, Lustig contends that the DEP already
decided the instant matter on appeal when it denied Blue Paper, Inc.’s original
application for a permit to construct a marginal dock due to there being
insufficient evidence of upland interest.

We find that Unit Owners are
entitled to use a portion of the dock. As an initial matter, and as both
parties assert, the trial court’s final judgment is inadequate. The trial
court, pursuant to Florida’s Declaratory Judgment Act, should have provided
both parties with a declaration of their rights to the dock as they had requested.
See § 86.011, Fla. Stat. (2017); see also Sears, Roebuck & Co. v.
Forbes/Cohen Fla. Props., L.P., 223 So. 3d 292, 298 (Fla. 4th DCA 2017)
(“[C]onclusory final judgments on declaratory judgment claims, which are devoid
of factual findings or conclusions of law, are inadequate.”).

Still, we can adjudicate the instant
dispute given that it is entirely legal in nature. See Sears, 223 So. 3d
at 298. Here, Unit Owners have a right to use a certain portion of the dock
given that they and Lustig executed the Assignment. See Haynes v. Carbonell,
532 So. 2d 746, 748 (Fla. 3d DCA 1988) (“[R]iparian interests may be severed
only by an ‘express bilateral agreement to do so.’ ” (quoting Belvedere Dev.
Corp. v. Dep’t of Transp., 476 So. 2d 649, 653 (Fla. 1985))). First, the
title of the Assignment is telling: “Nonrecourse Quitclaim Assignment of
Dockage Rights.” Next, in the text of the Assignment itself, Lustig agreed
to the fact that the dock was “constructed for the benefit of the owners of
townhouses at the Association for the dockage of vessels adjacent thereto,” and
then agreed that he was acquiring “the right to the use of a portion of the
Dock described as the Forty Four (44) feet of dock located at the outside
northwest corner of the Dock.”2 He also “agree[d] not to impede or
interfere with any other party’s rights at the dock.” Three pages later, he
signed the plat map which designated the portion of the dock that he could only
use. In light of the title of the Assignment, as well as its specific
provisions, Lustig unequivocally severed his riparian rights.

Lustig makes several arguments on
appeal for why the Assignment was invalid. Regardless of their merit, we find
them all waived since he conceded at trial that Unit Owners had a right to use
a portion of the dock. He stated during cross-examination that “I’m contending
that I own the vertical piece, and the horizontal piece to a certain point.”
Then, he agreed that Unit Owners “have the rest of the dock,” but that “they
just can’t get to it.” He further explained he would have no problem with Unit
Owners using a portion of the dock, as long as they built their own access pier
to it. His main concern was evident: he no longer wanted to see his neighbors
accessing the dock by encroaching on his land and pier.

B. Easement by Necessity

Lustig’s main concern brings us to
our next issue on appeal: whether Unit Owners, who have a right to use the
dock, have the right to access that dock by way of an easement by necessity. We
review this legal question de novo, see St. Vincent’s Med. Ctr., Inc. v.
Memorial Healthcare Grp., Inc., 967 So. 2d 794, 799 (Fla. 2007), and find
that they do not have the right to access Lustig’s pier by way of such an
easement.

A party who seeks “to establish a
way of necessity, whether in regard to an implied grant or statutory way, has
the burden of proof to establish that he or she has no practicable route of
ingress or egress.” Moran v. Brawner, 519 So. 2d 1131, 1133 (Fla. 5th
DCA 1988). Section 704.01(1), Florida Statutes (2017), codifies the
requirements for obtaining an implied easement by necessity:

Such an
implied grant exists where a person has heretofore granted or hereafter grants
lands to which there is no accessible right-of-way except over her or his land,
or has heretofore retained or hereafter retains land which is inaccessible
except over the land which the person conveys. In such instances a right-of-way
is presumed to have been granted or reserved. Such an implied grant or easement
in lands or estates exists where there is no other reasonable and practicable
way of egress, or ingress and same is reasonably necessary for the beneficial
use or enjoyment of the part granted or reserved.

§ 704.01(1), Fla. Stat. (2017). In
the instant case, there is no dispute that the only way for Unit Owners to
currently access the dock by land is by first crossing into Lustig’s backyard
and then walking on his pier.

However, just because Unit Owners
cannot currently access the dock by land does not mean that they have a need
for an easement. As stated by the Florida Supreme Court in Tortoise Island
Communities, Inc. v. Moorings Association, Inc., 489 So. 2d 22 (Fla. 1986),
an easement by necessity requires a showing of an “absolute necessity.” Id.
at 22 (emphasis added). Given that Unit Owners live on waterfront property,
they can find an alternate means of accessing the dock, such as by constructing
their own access pier, which would be a “reasonable and practicable way of
egress, or ingress.” § 704.01(1), Fla. Stat.

Our decision is guided in part by Hunter
v. Marquardt, Inc., 549 So. 2d 1095 (Fla. 1st DCA 1989). There, the First
District Court of Appeal overturned the granting of an easement by necessity
because the appellee could access certain wet storage slips, located beyond
appellant’s dock, “by water through the navigable Mexico Canal or by an
extension of the dock from [the appellee’s] original marina.” Id. at
1097. The court held that “the navigable waterway provides practicable access
to the property for that purpose.” Id. Here, the Intracoastal Waterway
behind the parties’ units also provides practicable access to the dock.
Although we are sympathetic of the inconvenience and cost to Unit Owners of now
having to build their own access pier, these factors do not outright determine
whether an easement is absolutely necessary. See Roy v. Euro-Holland
Vastgoed, B.V., 404 So. 2d 410, 413 (Fla. 4th DCA 1981) (“The fact that one
means of access may be more convenient than another does not suffice [for
purposes of obtaining an easement by necessity].”).

Conclusion

We reverse and remand for the trial
court to amend its final judgment and find that Unit Owners are entitled to use
a portion of the dock, but are not entitled to an easement by necessity in
order to access it. Lustig expressly severed some of his riparian rights to the
dock in the Assignment, and conceded as much at trial. However, Unit Owners do
not merit an easement by necessity because they have failed to demonstrate an
absolute need for such an easement.

Reversed and remanded. (TAYLOR and KLINGENSMITH, JJ., concur.)

__________________

1Appellants have since sold their
units. The new unit owners are pursuing this action on their behalf. See Fla.
R. Civ. P. 1.260(c); Levine v. Gonzalez, 901 So. 2d 969, 972-73 (Fla.
4th DCA 2005) (discussing the Rule which allows for an action to be continued
in the name of the original plaintiff after a transfer of interest without
requiring substitution).

2Although these two stipulations were
included as “whereas clauses,” which are usually prefatory and non-binding in
nature, see Orlando Lake Forest Joint Venture v. Lake Forest Master Cmty.,
105 So. 3d 646, 648 (Fla. 5th DCA 2013), these stipulations expressly became
binding through paragraph one of the Assignment, which stated: “The recitals
set forth above are true and correct and are incorporated herein by reference.”

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