FLORIDA GAS TRANSMISSION Case No.: SC182k1371 COMPANY, L.T. Case Nos.: 4D (7) Petitioner, RESPONDENT'S JURISDICTIONAL BRIEF

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1 IN THE SUPREME COURT STATE OF FLORIDA 2 FLORIDA GAS TRANSMISSION Case No.: SC182k1371 COMPANY, L.T. Case Nos.: 4D (7) Petitioner, v. STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, Respondent. RESPONDENT'S JURISDICTIONAL BRIEF On Review from the District Court of Appeal Fourth District, State of Florida ERIK M. FIGLIO GREGORY G. COSTAS Florida Bar No.: Florida Bar No.: MAJOR B. HARDING ROGER WOOD Florida Bar No.: Florida Bar No.: JOHN BERANEK MARC PEOPLES Florida Bar No.: Florida Bar No.: Ausley & McMullen Florida Department of Transportation Post Office Box Suwannee St., MS-58 Tallahassee, FL Tallahassee, FL (facsimile) (facsimile) Attorneys for Respondent

2 TABLEOFCONTENTS TABLE OF CITATIONS...ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT...4 ARGUMENT...5 I. THE DISTRICT COURT'S DECISION IS NOT IN CONFLICT WITH KOTICK, KINGDON, OR MOORE II. THE MAJORITY OF THE JURISDICTIONAL BRIEF IS DEVOTED TO NONJURISDICTIONAL ARGUMENTS THAT CONTRADICT FGT'S JURISDICTIONAL ARGUMENT...8 CONCLUSION...10 CERTIFICATEOFSERVICE...11 CERTIFICATE OF TYPE SIZE AND STYLE

3 Cases TABLE OF CITATIONS Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618 (6th Cir. 2008) Bennett v. Williams, 5 So. 2d 51 (Fla. 1941)...6 Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002)... 1 Choctawhatchee Electric Cooperative, Inc. v. Moore, 220 So. 2d 20 (Fla. 1st DCA 1969)...passim City of Jacksonville v. Florida First Nat'l Bank of Jacksonville, 339 So. 2d 632 (Fla. 1976)...9 Columbia Gas Transmission Corp. v. Tarbuck, 52 F.3d 538 (3d Cir. 1995)...10 Kingdon v. Walker, 156 So. 2d 208 (Fla. 2d DCA 1963)...passim Kotick v. Durant, 196 So. 802 (Fla. 1940)...passim Rules Fla. R. App. P (d)

4 STATEMENT OF THE CASE AND FACTS The Florida Department of Transportation ("FDOT") and Florida Gas Transmission Company ("FGT") are parties to two easements, entered in 1958 and 1967, the latter of which was substantially amended by the parties in 1987 ("Easements"), pursuant to which FGT has installed natural gas pipelines along a 109-mile stretch of the right-of-way of Florida's Turnpike. A Although the Easements confer on FGT the rights to maintain and operate those pipelines, A 1-3, the parties did not intend for the Easements to provide FGT with any uniform permanent easement width in which to exercise those rights, A 9. Instead, the Easements explicitly require FGT to conduct its activities "in such a manner as to interfere to the least possible extent with the overall operation of the [Turnpikef." A 9 (emphasis in District Court opinion). This unique contract term was the principal basis for the relevant portion of the District Court's decision.2 Id. at None of the cases FGT claims conflict with this 1 As in Petitioner's Jurisdictional Brief, references to the Appendix to that brief will be presented in the format A #. References to Petitioner's Jurisdictional Brief will be presented in the formal JB #. 2 The easement width issue set forth in the Jurisdictional Brief was just one of many issues raised on appeal and addressed in the District Court's opinion. Neither party was entirely successful in the trial court or the District Court, and both parties had appealed portions of the trial court's judgment. The Court should anticipate that the parties will seek to expand the scope of the Court's review if the Petition is granted. See, e.g., Caufield v. Cantele, 837 So. 2d 371, 377 (Fla. 2002). FDOT anticipates that, if the Petition is granted, FDOT will at least seek review of the District Court's holding that the trial court did not err in allowing the jury to 1

5 decision involved an easement containing remotely analogous terms or intent. FGT initiated this lawsuit in 2007, seeking, among other things, a judicial declaration of a uniform permanent easement width. A 4-5. At trial, FGT relied on evidence of modern "industry standards" and safety concerns, A 9, even though FGT admits that no "industry standard" delineates a specific minimum width in pipeline easements.3 Even more significantly, FGT presented nothing to suggest that a fixed easement width was in the contemplation of the parties at the time the Easements were signed. A 9. The trial court nonetheless awarded FGT a permanent easement width of fifteen feet on each side of FGT's pipelines. A 5-6. The District Court reversed the trial court's easement width award, relying on the following bedrock principles of contract interpretation: (1) construction of any contract is a question of law for the court; (2) the goal of the court in construing any contract is to give effect to the intent of the parties, the best evidence of which is the actual contract language; and (3) the need to consider interpret the terms of a separate agreement between the parties relating to reimbursement for and the procedure governing certain pipeline relocations, and to award FGT the costs of a pipeline relocation project under that separate agreement in accordance with the jury's conclusions. As provided above, however, there is no jurisdictional basis for review of this case. 3 In the District Court, FGT characterized the issue as "not whether federal regulations or engineering standards require a certain width, but whether performing pipeline operations, maintenance, and repairs in compliance with federal regulations and industry standards could be rendered more difficult, burdensome, or expensive without a reasonable amount of space." Answer Brief of Appellee and Initial Brief on Cross-Appeal, at 55 n.15 (emphasis in original). 2

6 extrinsic evidence arises only when a contract is ambiguous, i.e., when the contract is "rationally susceptible to more than one construction." A 7 (citing and quoting Florida cases). The District Court held that the trial court's permanent width declaration was erroneous because it was irreconcilable with unambiguous contract language-specifically, FGT's obligation to conduct its operations "in such a manner as to interfere to the least possible extent with the overall operation of the [Turnpike]." A 9. The District Court held this language demonstrated the parties' intent to leave easement width "purposefully... vague so that it would cause 'the least possible' interference to the Turnpike's operation." A 9. The District Court also explicitly rejected FGT's contention that another provision incorporating "industry standards" into the Easements for certain purposes could justify the imposition of a uniform permanent easement width.4 The court explained that the "industry standards" language had no bearing on the easement width because it related only "to the 'grade of design, construction, and operation' [of FGT's pipelines]." A 9.5 FGT did not seek rehearing or request that the District Court certify conflict 4 FGT impermissibly attempts to reargue this point in its statement of facts. Compare JB 2 ("[A]s contemplated by the parties at the time the Easements were executed, industry standards for pipeline operation... must be considered when defining the amount of space required for FGT to operate its pipelines safely and reasonably."); with A 9 (quoted above). 5 As stated above, FGT does not contend that "industry standards" delineate a minimum width for pipeline easements. 3

7 with any of the cases cited in the Jurisdictional Brief. However, FGT timely filed its notice to invoke this Court's jurisdiction, initiating this proceeding. SUMMARY OF ARGUMENT The Court should readily reject FGT's contention that the District Court's decision expressly and directly conflicts with Kotick v. Durant, 196 So. 802 (Fla. 1940), Kingdon v. Walker, 156 So. 2d 208 (Fla. 2d DCA 1963), and Choctawhatchee Electric Cooperative, Inc. v. Moore, 220 So. 2d 20 (Fla. 1st DCA 1969). Each of these decisions explicitly affirms that "the duty of the court" in construing easements is "to ascertain and give effect to the intention of the parties...." Kotick, 196 So. at 804; accord Kingdon, 156 So. 2d at 211; Moore, 220 So. 2d at 21. Accordingly, each of these decisions stands for the proposition that an omitted dimension can be supplied to an easement only when supplying the dimension is consistent with the intent of the parties. The District Court's decision makes clear that the trial court's easement width declaration was erroneous because the parties had made a conscious decision to omit a permanent, uniform easement width. A 9. None of the decisions on which FGT relies stands for the proposition that a court can supply an omitted term to an easement when doing so would contravene the intent of the parties. The remainder of the Jurisdictional Brief reargues points rejected by the District Court in a manner that contradicts FGT's jurisdictional argument. First, 4

8 FGT argues that specific terms, unique to the Easements at issue here, incorporate industry standards and the "federal regulatory scheme," and thus necessitate a fixed width term. However, if FGT's argument depends upon unique easement terms, the Petition must be denied because no similar terms are set out in the Kotick, Kingdon, and Moore decisions. FGT next relies on a line of foreign authority, which FGT contends shows that permanent easement widths are uniquely necessary in gas pipeline easements. However, if FGT's argument depends upon the special needs of gas pipeline companies, the Petition must be denied. The Kotick, Kingdon, and Moore decisions did not involve gas pipeline companies or gas pipeline easements. Finally, FGT claims that the District Court acted contrary to "basic principles" governing the relationship between easement owners and underlying property owners generally. However, FGT fails to cite a case describing these "basic principles" that the District Court's decision conflicts with, and no such case exists. Because the duty of the court in construing easements is "to ascertain and give effect to the intention of the parties," Kotick, 196 So. at 804, courts have no authority to supplant the parties' actual bargain with any such "basic principles." ARGUMENT I. THE DISTRICT COURT'S DECISION IS NOT IN CONFLICT WITH KOTICK, KINGDON, OR MOORE. FGT contends that Kotick, Kingdon, and Moore provide an easement holder 5

9 with an absolute right to inject a width term into an easement even in circumstances where, as here, the parties purposely intended that the easement would have no fixed width. In other words, FGT believes its right to a width declaration exists even where, as here, the requested width declaration contravenes the intent of the parties. See, e.g., JB 3 (criticizing the District Court's opinion for construing the Easements in accordance with what "the [parties contemplated] at the time they entered into [them]...."). Kotick, Kingdon, and Moore do not support this contention. As this Court is well aware, the goal of any Florida court in construing any Florida contract is "to ascertain the intent of the parties.",, Bennett v. Williams, 5 So. 2d 51, 51 (Fla. 1941). Kotick, Kingdon, and Moore all explicitly affirm that easements are no different than any other type of contract in this regard. Each of these decisions makes clear that a width term can be supplied if necessary to resolve an ambiguity, but only within the ambit of the parties' intent. FGT's contention that a width term must be supplied to an easement holder on demand, even when doing so is contrary to the parties' intent, is irreconcilable with these decisions. Kotick affirms that "the duty of the court" in construing easements is "to ascertain and give effect to the intention of the parties...." Kotick, 196 So. at 804 (Fla. 1940) (emphasis added). Kingdon affirms that, when a court supplies a width term, "[ilt is not a case of making a different contract but 6

10 of carrying out an intent already validly if broadly expressed." Kingdon, 156 So. 2d at 211. The First District in Moore could not have been clearer when it set out the standard of review as to whether the lower court's easement width determination was "reasonably necessary and contemplated at the time of initial acquisition." Moore, 220 So. 2d at 21 (emphasis added). Accordingly, FGT's contention that the District Court decision conflicts with Kotick, Kingdon, and Moore is meritless. As provided above, the District Court decision relies upon specific contract language which convinced the District Court that the parties intended "the easement width [to be] purposefully left vague...," for the specific purpose of ensuring that FGT "would cause 'the least possible' interference" with the operation of the Turnpike. A 9. Thus, unlike the easements at issue in Kotick, Kingdon, and Moore, a uniform, permanent width cannot be added to the Easements at issue here without contravening the parties' clearly expressed intent and "making a different contract," which itself would have been irreconcilable with Kotick, Kingdon, and Moore. Kotick, Kingdon, and Moore uniformly recognize that the goal of the court is to effectuate the intent of the parties, not to insert terms the parties purposely omitted. Nothing in these decisions supports FGT's theory that a contracting party in Florida is ever entitled to more than the benefit of its bargain. Accordingly, the Petition should be dismissed. 7

11 II. THE MAJORITY OF THE JURISDICTIONAL BRIEF IS DEVOTED TO NONJURISDICTIONAL ARGUMENTS THAT CONTRADICT FGT'S JURISDICTIONAL ARGUMENT. The remainder of the Jurisdictional Brief is devoted to reargument of extraneous merits issues that were explicitly rejected by the District Court and that have nothing to do with FGT's asserted basis for jurisdiction. Furthermore, all of this argument contradicts FGT's contention that the District Court's decision conflicts with Kotick, Kingdon, and Moore.' First, FGT argues that the specific Easements at issue must have a uniform permanent width because they incorporate modern "industry standards" and the current "federal regulatory scheme," relying on contract terms unique to the Easements at issue in this case. JB 2, 9. Indeed, FGT describes it as "crucial" that the District Court opinion failed to recognize that the "federal regulatory scheme" was incorporated in the Easements. JB 9. The reality is that no federal regulation requires a minimum width in gas pipeline easements, and despite FGT's jurisdictional argument, FGT never contended otherwise in the District Court.' In any event, the more important point for present purposes is that nothing in the Kotick, Kingdon, or Moore opinions suggests that the easements at issue in those cases contained anything remotely 6 This argument also violates Rule 9.120(d)'s clear directive that jurisdictional briefing must be "limited solely to the issue of [this Court's] jurisdiction." See note 3, supra. 8

12 analogous to the provisions at issue. If FGT's argument depends upon the District Court's construction of unique contract terms not at issue in Kotick, Kingdon, or Moore, the Petition must be dismissed because the District Court's opinion cannot possibly conflict with those earlier decisions. See, e.g., City of Jacksonville v. Florida First Nat'l Bank of Jacksonville, 339 So. 2d 632, 633 (Fla. 1976) (Court has no conflicts jurisdiction to review district court's application of controlling rule of law unless earlier decision reached conflicting result even though it involved substantially the same controlling facts). Next, FGT effectively admits that no Florida case law conflicts with the District Court's opinion, in asserting that the District Court has "put[] Florida in conflict with virtually all other jurisdictions," JB 7 (emphasis added), i.e., because FGT believes that, in other jurisdictions, gas companies are entitled to demand fixed easement widths for their pipeline easements even if the parties' intent is to the contrary. FGT claims that this foreign authority is significant because FGT believes there is something special about pipeline easements and the easement width needs of gas companies. In FGT's words, "the ability of a pipeline company such as FGT to comply with federal regulations is a primary reason for width declarations." JB 9. Irrespective of the merits of this contention,8 it again 8 There is absolutely no merit to this contention. None of the cases on which FGT relies creates a "pipeline easement exception" to the otherwise settled rule of construction that the paramount goal of courts in construing contracts is to identify 9

13 undercuts FGT's argument that Kotick, Kingdon, and Moore have any relevance to this proceeding. None of these decisions involved pipeline easements. Lastly, FGT asserts that the District Court "acted contrary to the basic principles governing the relationship between the easement owner and the underlying property owner" in reversing the trial court's permanent easement width declaration. JB 4. However, FGT does not identify any Florida case setting out any "basic principles" that the District Court's opinion expressly and directly conflicts with. Indeed, for the reasons stated above, FGT's own case law belies FGT's contention. If the duty of the court in construing easements is "to ascertain and give effect to the intention of the parties," Kotick, 196 So. at 804, courts have no authority to supplant the parties' actual, bargained-for contract provisions with any of FGT's "basic principles." CONCLUSION For the foregoing reasons, the Court should deny the Petition. and effectuate the intent of the parties. E3, Andrews v. Columbia Gas Transmission Corp., 544 F.3d 618, 625 (6th Cir. 2008) ("[T]he intention of the parties at the time of the conveyance is the primary consideration in determining the status of an easement.") (quotation omitted); Columbia Gas Transmission Corp. v. Tarbuck, 52 F.3d 538, 544 (3d Cir. 1995) ("[A]mbiguous easements are construed to provide the grantee the 'reasonable and necessary' use of the right of way within the purpose of the easement and the intentions of the original parties to the grant.") (quotation omitted). 10

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a following on August 17, 2012: copy was provided by U.S. Mail to the Michael Gay, Esq. Philip M. Burlington, Esq. Kevin A. Reck, Esq. Burlington & Rockenbach, P.A. Foley & Lardner, LLP Court House Commons, Suite N. Orange Avenue, Suite W. Railroad Avenue Orlando, FL West Palm Beach, FL Ethan J. Loeb, Esq. Daniel Bishop, Esq. John P. Tasso, Esq. Christina Carlson Dodds, Esq. Bricklemyer, Smolker & Bolves, P.A. Bishop London & Dodds 500 East Kennedy Blvd., Suite Bee Cave Road, Suite 200 Tampa, FL Austin, TX Tom Q. Ferguson, Esq. Doerner, Saunders, Daniel & Anderson, LLP Two West Second Street, Suite 700 Tulsa, OK

15 CERTIFICATE OF TYPE SIZE AND STYLE This Brief is typed using Times New Roman 14 point, a font which is not proportionately spaced. ERIK M. FIGLI Florida Bar No MAJOR B. HARDIN Florida Bar No.: JOHN BERANEK Florida Bar No.: Ausley & McMullen Post Office Box 391 Tallahassee, Florida (850) (850) (facsimile) rfiglio@ausley.com mharding@ausley.com jberanek@ausley.com GREGORY G. COSTAS Florida Bar No.: ROGER WOOD Florida Bar No.: MARC PEOPLES Florida Bar No.: Florida Department of Transportation 605 Suwannee St., MS-58 Tallahassee, FL (850) (850) gregory.costas@dot.state.fl.us roger.wood@dot.state.fl.us marc.peoples@dot.state.fl.us ATTORNEYS FOR RESPONDENT 12