SUPREME COURT OF FLORIDA

Transcription

1 PRIME WEST, INC. and PRIME WEST CONDOMINIUM ASSOCIATION, INC., v. Petitioners, SUPREME COURT OF FLORIDA LORENZO CAMARGO and ANA CAMARGO, his wife; and UNION AMERICAN INSURANCE COMPANY, Respondents. / CASE NO. SC L.T. NO. 3D Petition for Discretionary Review from District Court of Appeal, Third District of Florida BRIEF ON JURISDICTION OF RESPONDENTS, LORENZO CAMARGO and ANA CAMARGO, his wife KOPPEN, WATKINS, PARTNERS & LANGBEIN & LANGBEIN, P.A. ASSOCIATES, P.A., Co-Counsel for Camargos Co-Counsel for Camargos 8181 N.W. 154 th Street, Suite W. Linton Boulevard, Suite 202 Miami Lakes, FL Delray Beach, FL Tel: Tel: Fax: Fax: By Evan J. Langbein, Esquire

2 Fla. Bar. No TABLES OF CONTENTS Table of Authorities... ii Statement of the Case and Facts... 1 Summary of Argument... 3 Argument EXPRESS AND DIRECT CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR THIS COURT ON THE SAME QUESTION OF LAW DOES NOT EXIST Conclusion... 9 Certificate of Service... 9 Certificate of Compliance... 10

3 TABLE OF AUTHORITIES Cases Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958)... 3 Burnham v. Davis Islands, Inc., 87 So. 2d 97, 100 (Fla. 1956)... 4 Childs v. Weissman, 432 So. 2d 604 (Fla. 3d DCA 1983)... 5,6 City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352 (1923)... 3 Dept. of HRS v. Nat. Adoption Counseling Serv., Inc., 498 So. 2d 888 (Fla. 1986)... 5 Dinkins v. Julian, 122 So. 2d 620 (Fla. 2d DCA 1960)... 5 Florida S. Railway Co. v. Brown, 23 Fla. 104, 1 So. 512 (1887)... 5 Highland Const. v. Paquette, 697 So. 2d 235, 236 (Fla. 5 th DCA 1997)... 6 Jenkins v. State, 385 So. 2d 1356, (Fla. 1980)... 3,4 MacGregor v. Sachs, 57 So. 2d 426 (Fla. 1952)... 3 Nielsen v. City of Sarasota, 117 So. 2d 731, (Fla. 1960)... 3,6 -iii-

4 Reaves v. State, 485 So. 2d 829, 830, n. 3 (Fla. 1986)... 1 Reiger v. Anchor Post Prods., Inc., 210 So. 2d 283 (Fla. 3d DCA 1968)... 4,5 Reyes v. Perez, 294 So. 2d 493 (Fla. 4 th DCA 1973)... 8 School Bd. of Pinellas County v. District Court of Appeal, 467 So. 2d 985 (Fla. 1985)... 5 Servando Bldg. Co. v. Zimmerman, 91 So. 2d 289 (Fla. 1956)... 6 Smith v. Horn, 70 Fla. 484, 70 So. 435 (1915)... 5 Spencer v. Wiegert, 117 So. 2d 221 (Fla. 2d DCA 1959)... 6 Tippens v. State, 897 So. 2d 1278 (Fla. 2005)... 5 United States v Acres of Land in County of Dade, 342 So. 2d 476 (Fla. 1977)... 6 Zaucha v. Town of Medley, 66 So. 2d 238, 240 (Fla. 1953)... 6,7 Rules Fla. R. App. P (a)(2)(iv)... 3 Fla. R. App. P (d)... 1 Fla. R. App. P (b)(3) iv-

5 Fla. R. App. P (a)(2) Other Authority Raymond T. Elligett, Jr. & John M. Scheb, Florida Appellate Practice & Advocacy (4 th ed. 2005), Ch v-

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7 STATEMENT OF THE CASE AND FACTS 1 The jurisdictional brief of Petitioners, PRIME WEST, INC. and PRIME WEST CONDOMINIUM ASSOCIATION, INC. ( Prime West ) should be stricken. Fla. R. App. P (d) & 9.210(b)(3); Reaves v. State, 485 So. 2d 829, 830, n. 3 (Fla. 1986)[...[t]he only facts relevant to our decision to accept or reject... petitions are those facts contained within the four corners of the decisions allegedly in conflict. ]. Prime West states that the Brody easement a perpetual nonexclusive access easement granted by Prime West (A 3) has been abandoned by Brody. (PWB. 3-4). The district court did not state such a fact, and the record did not, either. Such a fact was an uncorroborated argument of Prime West on appeal. Such fact was irrelevant and never proven. Respondents, LORENZO and ANA CAMARGO, disputed it. Prime West states that the district court s opinion creates a new easement based on notice of use. (PWB. 1) Notice, however, in its various forms is not a separate category of an easement, but an element associated with existing classifications of easements. A fair reading of the district court opinion shows that 1 Reference to Prime West s brief is PWB ; to the appendix A. -1-

8 a pre-existing easement was confirmed, not that a new category of easement was created. (A. 1-6). The district court reviewed a final judgment, following a non-jury trial, finding as fact that the Camargos purchased their Lot 6 in 1990,with a preexisting easement, abutting a roadway reflected of record. (A. 4) The court found that Prime West s corporate principal, Ortega, purchased Lot 5 and the land known as N.W. 16 th Street the following year (1991), subject to a covenant running with the land restricting the property known as N.W. 16 th Street to roadway use. (A. 3). The trial court found, and the district court affirmed, that the Camargos for the first seven years they owned Lot 6 had free ingress and egress on the street known as N.W. 16 th Street. (A. 2-4). 2 The co-respondent, UNION AMERICAN INSURANCE COMPANY, also had the same access. (A. 3) Public and private access had existed [s]tarting in the 1950's,... (A. 2). The 2 The district court reversed the trial court s declaration of N.W. 16 th Street only as a public roadway; that issue had not been pled by Respondents. (A. 6). The district court did not find the street was a dirt road. PWB. 2. No such fact is in the district court opinion, or the record proper. Again, it is only Prime West s argument. -2-

9 district court noted [footnote 1, A. 2] that [m]ost of the deeds... in the parties chain of title reflected the long history of right of way for parties owning land abutting N.W. 16 th Street, and using that street for ingress and egress to N.W. 108 th Avenue. (Id.) The district court found constructive notice to Prime West of Respondents existing private easement, through the chain of title, and that Prime West had actual notice of the easement, before they blockaded it with a fence in (A 1-4). The court found that Prime West granted Brody, owning property abutting N.W. 16 th Street, on the north side, a perpetual nonexclusive access easement for roadway purposes in (A. 2-3). Prime West did so to obtain Brody s release of a restrictive covenant running with the land which prevented Ortega and Prime West from using N.W. 16 th Street for anything other than roadway use. (Id.). Both the trial and district court concluded Prime West acted (in developing the property for commercial purposes) with intentional disregard of Respondents pre-existing easement that always had afforded road right-of-way access. (A. 3) SUMMARY OF ARGUMENT The standard of review is limited and strictly prescribed. Jenkins v. State, 385 So. 2d 1356, (Fla. 1980). District courts are not intermediate appellate courts. Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958). Either a -3-

10 conflicting rule of law must be announced, or a rule of law must be misapplied in a case with substantially the same controlling facts before express and direct conflict jurisdiction may vest in this Court. Nielsen v. City of Sarasota, 117 So. 2d 731, (Fla. 1960); Fla. R. App. P (a)(2)(iv). 3 The district court announced no new rule of law, only confirming the preexisting private easement shown in the chain of title and referenced in a plat, citing, inter alia, Reiger v. Anchor Post Prods., Inc., 210 So. 2d 283 (Fla. 3d DCA 1968) [A. 5]. 4 An easement was not created, only confirmed by the evidence. No case cited by the district court or Prime West shows a misapplication of a rule of law to a case involving substantially the same controlling facts. Controlling facts were unique, involving clear disregard by a commercial developer (Ortega and Prime West), who engaged in self-help, blockading the road right-of-way 3 Since Prime West s appealed following a non-jury trial, the standard of review in the plenary appeal was deferential. E.g., MacGregor v. Sachs, 57 So. 2d 426 (Fla. 1952); City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352 (1923). 4 Reiger quoted this Court s statement of law in Burnham v. Davis Islands, Inc., 87 So. 2d 97, 100 (Fla. 1956). -4-

11 existing since the 1950's. Prime West actually knew such ingress and ingress existed for the abutting landowners on N.W. 16 th Street, to access N.W. 108 th Avenue, since Ortega acquired his land in (A 2-3). Prime West then granted and recorded in 1995 a perpetual nonexclusive access easement to Brody, re-confirming right-of-way to N.W. 108 th Avenue, again showing actual knowledge. (A. 3). No evidence showed that Brody abandoned the roadway easement. ARGUMENT EXPRESS AND DIRECT CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR THIS COURT ON THE SAME QUESTION OF LAW DOES NOT EXIST. This Court is not an automatic final destination from the district courts of appeal. Tippens v. State, 897 So. 2d 1278 (Fla. 2005). Resulting injustice felt by an immediate litigant is insufficient to entertain a second appeal. Jenkins v. State, supra. Conflict must be express (i.e., appearing on the face of the district court s written opinion), not implied. Dept. of HRS v. Nat. Adoption Counseling Serv., Inc., 498 So. 2d 888 (Fla. 1986); School Bd. of Pinellas Cty. v. District Court of Appeal, 467 So. 2d 985 (Fla. 1985). Prime West relies on dicta quoted from Dinkins v. Julian, 122 So. 2d 620 (Fla. 2d DCA 1960). (A. 4-5; PWB 5-6) It does so apparently because Dinkins is -5-

12 the only case, cited by the district court, among two others, Reiger, supra, and Childs v. Weissman, 432 So. 2d 604 (Fla. 3d DCA 1983) decided by another district court. All three of those decisions, however, considered together, and cases in turn cited in each of those three district court opinions, reflect that (a) the district court announced no new rule of law; and (b) the lower tribunal misapplied none. Childs particularly involved similar facts to those in this case, and cited two ancient decisions of this Court [Florida S. Railway Co. v. Brown, 23 Fla. 104, 1 So. 512 (1887) and Smith v. Horn, 70 Fla. 484, 70 So. 435 (1915)], applying the same rule of law applied by the district court in this case. 5 In Childs, cited by the district court below (A. 5), the court held that a private owner of adjacent land retained access right-of-way on an alley that had provided public access for 45 years, even though the alley reverts to private ownership. See also Highland Const. v. Paquette, 697 So. 2d 235, 236 (Fla. 5 th DCA 1997) [ Florida has adopted 5 Also cited in Childs, applying the same rule of law, were: United States v Acres of Land in County of Dade, 342 So. 2d 476 (Fla. 1977); Servando Bldg. Co. v. Zimmerman, 91 So. 2d 289 (Fla. 1956); and Spencer v. Wiegert, 117 So. 2d 221 (Fla. 2d DCA 1959). -6-

13 the beneficial or complete enjoyment rule with regard to determining the existence of an implied easement... on a street that had reverted to private ownership]. Prime West argues that express and direct conflict exists with Zaucha v. Town of Medley, 66 So. 2d 238, 240 (Fla. 1953). The district court quoted, at length, the rule of law enunciated by this Court. (A. 5-6). Prime West s discussion of Zaucha shows that it does not take issue with the rule of law announced either in that case, or this one. Rather, Prime West complains of an alleged misapplication of that rule to varying facts articulated within the district court s decision in this case. Jurisdiction here, however, depends on a different result produced in a case of substantially the same controlling facts. Nielsen, supra. The controlling facts here demonstrate the appropriate application of the rule of law announced in Zaucha. This court held in that case that purchasers must make inquiry beyond the face of the public record when a recorded instrument reflects facts that clearly would place a prudent person upon inquiry. The district court stated that [m]ost of the deeds in the chain of title reflected the existence of N.W. 16 th Street. (A. 2, n. 1). Other facts adduced at trial showed that Prime West had actual knowledge, learned both from Ortega/Prime West s knowledge (in 1991) of a restrictive covenant running with the land, limiting use of -7-

14 the street for roadway access to N.W. 108 th Avenue, and Prime West s inquiry of the public record. (A. 3-4). Prime West actually followed the rule of law enunciated in Zaucha, actually knowing that a roadway easement existed. Prime West then contacted Brody, negotiating a recorded grant of a nonexclusive, perpetual roadway access easement to Brody. As the district court opinion states, Brody s land abutted the N.W. 16 th Street roadway easement on the north side; Respondent s lot abutted the same easement on the south side of the road. (A. 2-3). This shows the application of Zaucha s rule of law was proper. Prime West irrelevantly argues that N.W. 16 th Street is depicted in an unrecorded plat. (A. 2) Both the trial and district court found that repeated reference to both that plat, in recorded deeds, and to the street and restricted roadway use, in those deeds, afforded Prime West constructive and actual notice of the plat s contents from the public record and Prime West s inquiry. Lastly, Prime West argues that express and direct conflict arises out of Reyes v. Perez, 294 So.2d 493 (Fla. 4 th DCA 1973). Petitioners dub Reyes an all fours case, even though the district court did not cite or discuss it. They further declare that Reyes, like the Camargos (PWB 9) was landlocked. The district court opinion found no lawful landlock. (A. 1-6). Respondent were not landlocked until Prime West created one, artificially and extra-legally, in 1997, -8-

15 erecting a fence to blockade pre-existing road right-of-way, for generations. Prime West s self-help gave rise to this litigation resulting in an order to remove the fence. (A. 1-2). Reyes does not involve substantially the same controlling facts. Use of a road in Reyes was extra-legal and permissive; here, the road was a street (N.W. 16 th Street), subject to consistent public and private use for ingress and egress to another public street, N.W. 108 th Avenue, for decades, reflected in recorded deeds and another instrument granting a perpetual, nonexclusive access roadway easement. Unlike Reyes, this case involves a grantor of an access and perpetual roadway easement on the north side of the easement attempting to disavow the very same easement to those owning property on the south side of the street. The facts of Reyes differ from facts in this case, and create no express or direct conflict. In sum, all the district court did in this appeal was affirm a factual determination by the trial court confirming a pre-existing roadway access easement; no creation of a new class of easements occurred. Exercise of discretionary jurisdiction under Florida structured constitutional appellate system is unauthorized. See generally, Raymond T. Elligett, Jr. & John M. Scheb, Florida Appellate Practice & Advocacy, (4 th ed. 2005), Ch. 2 CONCLUSION For reasons stated, Prime West s petition should be dismissed or denied. -9-

16 Respectfully submitted, LANGBEIN & LANGBEIN, P.A. Attorneys for Appellees, LORENZO and ANA CAMARGO 8181 N.W. 154 th Street Suite 105 Miami Lakes, FL Tel: Fax: By s/ Evan J. Langbein, Esq. Evan J. Langbein Fla. Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief of Respondents, Lorenzo and Ana Camargo, on Jurisdiction has been furnished by Regular U.S. Mail to Mario M. Ruiz, Esquire, c/o Cohen/Fox, P.A., Miami Center, Suite 850, 201 South Biscayne Boulevard, Miami, FL ; R. Daniel Koppen, Esquire, c/o Koppen, Watkins, Partners & Associates, P.A., 900 W. Linton Boulevard, Suite 202, Delray Beach, FL 33444; Jorge A. Lopez, Esquire, 901 Ponce de Leon Boulevard, Suite 601, Coral Gables, FL 33134, on October 17, s/ Evan J. Langbein, Esq. CERTIFICATE OF COMPLIANCE -10-

17 WE HEREBY CERTIFY that the foregoing Brief of Respondents, Lorenzo and Ana Camargo on Jurisdiction, is submitted in Times New Roman 14-point font in compliance with Fla. R. App. P (a)(2). s/ Evan J. Langbein, Esq. -11-