IN THE SUPREME COURT OF FLORIDA CASE NO. SC 05-1697 LOWER COURT CASE NO. 3D04-471 PRIME WEST, INC. and PRIME WEST CONDOMINIUM ASSOCIATION, INC., Petitioners, v. LORENZO CAMARGO and ANA CAMARGO, his wife; and UNION AMERICAN INSURANCE COMPANY, Respondents. On Petition for Review from The District Court of Appeal, Third District BRIEF OF RESPONDENT, UNION AMERICAN INSURANCE COMPANY, ON JURISDICTION JORGE A. LOPEZ, P.A. Counsel for Respondent, Union American Insurance Company 1500 San Remo Avenue, Suite 290 Coral Gables, Florida 33146 Telephone: 305-669-3959 Facsimile: 305-669-3954 By: Jorge A. Lopez Florida Bar Number 613101
TABLE OF CONTENTS TABLE OF AUTHORITIES...ii INTRODUCTION...1 STATEMENT OF THE CASE AND FACTS.1 SUMMARY OF ARGUMENT...5 ARGUMENT...6 THE DISTRICT COURT DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THIS COURT ON THE SAME QUESTION OF LAW CONCLUSION 9 i
TABLE OF AUTHORITIES CASES Childs v. Weissman, 432 So.2d 604 (Fla. App. 3 Dist. 1983) 7, 8 Dinkins v. Julian, 122 So.2d 620 (Fla. App. 2 Dist. 1960)...6, 9 Easton v. Appler, 548 So.2d 691 (Fla. App. 3 Dist. 1989)...7 Highland Const. v. Paquette, 697 So. 2d 235 (Fla. App. 5 Dist. 1997) 7 Reyes v. Perez, 284 So.2d 493 (Fla. App. 4 Dist. 1973)...8, 9 Southeast Seminole Civic Association, Inc. v. Adkins, 604 So.2d 523 (Fla. App 5 Dist. 1992).8 Zaucha v. Town of Medley, 66 So. 2d 238 (Fla. 1953).6, 8 ii
INTRODUCTION Petitioners, Prime West, Inc. and Prime West Condominium Association, Inc., shall be referred to herein collectively as, Prime West ; Respondent, Union American Insurance Company, shall be referred to herein as, Union American ; Respondents, Lorenzo Camargo and Ana Camargo, his wife, shall be referred to herein collectively as, the Camargos ; references to the Appendix shall be to A. STATEMENT OF THE CASE AND FACTS In its brief, Prime West asserts numerous points as fact although many of those assertions are not contained in the opinion of the District Court. Accordingly, Respondent, Union American, respectfully requests that any such assertions be regarded as argument by Prime West. The Camargos filed a complaint in the trial court seeking ingress and egress to their property under three alternative theories. One of the remedies sought was declaratory relief pursuant to Chapter 86 of the Florida Statutes, specifically, to confirm a pre-existing easement over the right of way known as N.W. 16 Street which abuts the Camargo property directly to the north. The Camargos sought judgment granting them use and enjoyment of the N.W. 16 Street right of way which had previously afforded them access to their property, but which had been taken from them when Prime West erected a fence between the Camargo property
and the road, thereby physically preventing the Camargos from accessing their property. Union American was in essence an innocent bystander who was drawn into the litigation simply by virtue of owning land next door. After a non-jury trial, the trial court entered judgment in favor of the Camargos pursuant to Count III of the Complaint. Specifically, the trial court granted injunctive relief for removal of the fence blocking ingress and egress to lots 6, 7 and 8 from N.W. 16 Street to N.W. 108 Avenue. In reviewing the final judgment and the record on appeal, the District Court found the trial judge s decision to be well-reasoned, (A.6), and reversed only that portion of the final judgment which declared N.W. 16 Street to be a public road since dedication to the public had not been pled by the parties or proven below. (Id.) In its opinion, the District Court found that lot 5 {owned by Prime West}, lot 6 {owned by the Camargos}, and lots 7 & 8 {owned by Union American}, were depicted in an unrecorded plat known as Truman City. The District Court further found that lots 5, 6, 7 and 8 run west to east of each other with lot 5 being the western-most lot and lot 8 being the eastern-most lot. On the east side of lot 8, running north and south, is N.W. 108 Avenue. (A.2) At the heart of the case was a fifty foot wide strip of land that connects lot 5 to N.W. 108 Avenue and which directly abuts the north end of lots 6, 7 and 8.
(A.2) This fifty foot wide strip of land, referred to as N.W. 16 Street, was used as a roadway to gain access to the lots in Truman City from N.W. 108 Avenue. (A.4) The District Court found, as did the trial court, that most of the deeds in the parties chain of title, and throughout the history of the properties, explicitly contained descriptions of the fifty foot wide strip of property as a street, i.e., N.W. 16 Street, and that the deeds themselves explicitly made reference to the unrecorded plat of Truman City. (footnote 1, A.2) The District Court also found that the fifty foot wide strip of land was designated in the unrecorded plat of Truman City as a road called N.W. 16 Street. (Id.) In 1988, Lot 5, and by separate deed, the fifty foot wide strip of land known as N.W. 16 Street, were both purchased from Brody by Waldorf Properties. Significantly, the deed for the fifty foot wide strip from Brody to Waldorf explicitly burdened the property with a covenant running with the land which stated that upon written request from Brody, and without any further consideration, Waldorf would convey the property to Dade County for road right of way purposes. (A. 2-3) The District Court also noted the fact that the Brody family had retained ownership of the property immediately north of the fifty foot wide strip, i.e., N.W. 16 Street. (A.3)
The Camargos acquired Lot 6 in 1990, and for the seven years following their acquisition, they continuously used the roadway that directly abutted their lot to the north, i.e., N.W. 16 Street, for the purpose of gaining access to and from their property from N.W. 108 Avenue. (A. 3,4) The District Court found that, in 1991, Waldorf conveyed lot 5 and the fifty foot wide parcel to Ortega, subject to the road right of way covenant running with the land. (A.3) 1 In 1995, in conjunction with the development of his property for commercial purposes, Ortega obtained from Brody a release of the road right of way covenant which burdened the fifty foot wide parcel, and in return therefor, he granted the Brody Family Limited Partnership a perpetual nonexclusive access easement over and across the strip of property known as N.W. 16 Street, thereby giving the property retained by Brody access to N.W. 108 Avenue. (A.3) Thereafter, Ortega deeded both lot 5 and the fifty foot strip of property to Prime West. In 1997 Prime West erected a fence between the Camargo property and N.W. 16 Street, thereby 1 Although not explained in the District Court s opinion, Jose Ortega served as an officer of Prime West, Inc. and the trial court found, in its final judgment, that At all times material to this matter, Jose A. Ortega, through his business and personal relationships, was an agent of Prime West and his conduct and knowledge is imputed to Prime West (Final Judgment, Page 2, Paragraph 7)
preventing the Camargos from gaining access to their property, and thus, giving rise to this litigation. (A. 3, 4) The District Court found that the Camargos acquired title to their property along with the corresponding right to access their property via N.W. 16 Street and that said access was materially beneficial to the use and enjoyment of their lot. (A.5) The District Court did not create a new easement, nor did it create a new class of easement; it simply confirmed the existence of the implied private easement that had existed in favor of the Camargos and in favor of the lots adjacent to N.W. 16 Street for many years. The District Court further confirmed well settled law in Florida that the implied easement did not depend on the dedication of the road way to the public, but upon a private easement implied from the sale of the lots with reference to a plat showing streets that materially benefitted those lots. Relying on well settled precedent, the District Court found that the evidence revealed that Prime West was in a position to learn of the existence of N.W. 16 Street simply by inquiring into the facts known at the time of the purchase of their property, concluding that Prime West not only had constructive notice of Respondents existing private easement, through the chain of title, but that Prime West had actual notice of the easement. (A. 2-3). SUMMARY OF ARGUMENT
Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(iv), in order for express and direct conflict jurisdiction to vest in this Court, the lower court must either announce a conflicting rule of law, or a rule of law must be misapplied in a case with substantially the same controlling facts. The District Court neither announced a conflicting or novel rule of law nor did the District Court misapply a rule of law involving substantially the same facts as those contained in the cases cited by the District Court. In fact, the District Court recognized the particular and quite compelling facts of the Camargo case and the Court s opinion is supported by long standing precedent. Contrary to Prime West s argument, the District Court did not create a new class of previously unrecognized easements, but rather simply confirmed the existence of an implied private easement in favor of the Respondents, gathered from the circumstances surrounding the conveyance and mean[s] that whatever [was] obviously in use as an incident or as an appurtenance [passed] by implication when the land [was] sold., citing Dinkins v. Julian, 122 So.2d 620 (Fla. App. 2 Dist. 1960) (A.4-5) ARGUMENT THE DISTRICT COURT DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL OR OF THIS COURT ON THE SAME QUESTION OF LAW
The case of Zaucha v. Town of Medley, 66 So. 2d 238 (Fla. 1953), cited by the District Court, stands for the proposition that if in the investigation of a title, a purchaser, with common prudence, must have been apprised of another right, notice of that right is presumed as a matter of implied actual notice. The District Court did not announce a novel rule of law or a rule of law that conflicts with the rule of law enunciated in Zaucha. The District Court correctly applied the rule of law in Zaucha to the particular facts of the Camargo case, finding specifically that most of the deeds in the parties chain of title, and throughout the history of the properties, explicitly contained descriptions of the fifty foot wide strip of property as a street, i.e., N.W. 16 Street, and that the deeds themselves explicitly made reference to the unrecorded plat of Truman City. (footnote 1, A.2) In fact, the record reflected that the specific language contained in no less than six deeds within Prime West s chain of title clearly placed Prime West on notice that the land to the north of their property was a street. Therefore, the District Court found the evidence to reveal that Prime West was in a position to learn of the existence of N.W. 16 Street simply by inquiring into the facts known at the time of the purchase of their property and that Prime West not only had constructive notice of Respondents existing private easement, through the chain of title, but that Prime West had actual notice of that easement. (A. 2-3).
It is well settled that when property is purchased and the deed of conveyance refers to a plat for which streets, parks and other open areas are shown, purchasers acquire an implied private easement with respect to areas designated on the plat. Easton v. Appler, 548 So.2d 691 (Fla. App. 3 Dist. 1989); Highland Const. v. Paquette, 697 So. 2d 235 (Fla. 5 th DCA 1997). The District Court cited the case of Childs v. Weissman, 432 So.2d 604 (Fla. App. 3 Dist. 1983) as support for its affirmation of the implied easement in favor of the Camargos over the land identified as N.W. 16 Street. The Childs case held that when the appellant took title to her property, the abutting alley was materially beneficial to the enjoyment and use of her lots and that her rights to the use of the adjacent alley did not depend on the dedication of the alley way to the county, but upon a private easement implied from the sale of land with reference to a plat showing streets and alleys subject to use and enjoyment by the purchaser of the dominant land. Childs, at pages 605-606. There is no support for Prime West s argument that the plat of Truman City must be recorded in order for it to be recognized. In Southeast Seminole Civic Association, Inc. v. Adkins, 604 So.2d 523 (Fla. App 5 Dist. 1992), it was held that the owners of lots depicted on the unrecorded plat of Chula Vista had, by implication of law, obtained easements across lands designated as roadways in the
subdivision depicted on the unrecorded plat when they brought their lots. See also Zaucha, supra at pp.239-240 [notice of a roadway based upon unrecorded instruments and actual knowledge]. Prime West argues that the District Court opinion conflicts with Reyes v. Perez, 284 So.2d 493 (Fla. App. 4 Dist. 1973). The facts of the Reyes case could not be any more distinguishable from the facts of the Camargo case. Unlike the Camargo parcel, which has always abutted N.W. 16 Street and has had access by way of a road, i.e., N.W. 16 Street, for generations, in Reyes, the landlocked dominant tenement, Perez, (i.e. Camargo in our case) was truly landlocked because that parcel did not abut a road. In addition, the Reyes case involved the extra-legal use of the property which was the subject of the dispute, not decades of open and lawful use of a street by not only the Camargos, but also by abutting landowners and the public, in reliance upon dedication and on recorded deeds. A critical fact in the Camargo case, which was absent from the facts of the Reyes case, was the existence of a recorded grant of a perpetual non-exclusive access easement for specific roadway purposes (the Brody easement) over the land in dispute, and granted by the very party, i.e., Ortega/Prime West, who is guilty of erecting the fence that actually caused the Camargo property to be landlocked.
The District Court cited the rule of law enunciated in Dinkins v. Julian, 122 So.2d 620 (Fla. App. 2 Dist. 1960) that a grantee of land obtains all those apparent and visible easements which are beneficial to the use and enjoyment of the land granted. Prime West erroneously argues that the Dinkins decision is in conflict with the District Court s opinion. In fact, the District Court did not announce a new rule of law but simply applied the rule of law enunciated in Dinkins to the particular facts in the Camargo case, finding that the Camargos acquired title to their property along with the corresponding right to access their property via N.W. 16 Street and that said access was materially beneficial to the use and enjoyment of their lot. (A.5) CONCLUSION The District Court did not create an easement nor did it establish a new class of easement previously unrecognized under Florida law. The District Court merely confirmed a pre-existing implied private easement that existed in favor of the Camargos and abutting landowners by applying long standing rules of law to the particular facts of the Camargo case. Accordingly, Prime West s petition should be dismissed or denied. Respectfully submitted by: JORGE A. LOPEZ, P.A. Counsel for Respondent, Union American Insurance Company
1500 San Remo Avenue, Suite 290 Coral Gables, Florida 33146 Telephone: (305) 669-3959 Facsimile: (305) 669-3954 By: Jorge A. Lopez Florida Bar Number 613101 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief on Jurisdiction was served by Regular U.S. Mail this day of October, 2005 on: Mario M. Ruiz, Esquire, Cohen Fox, P.A., Counsel for Petitioners, Miami Center, Suite 850, 201 South Biscayne Boulevard, Miami, Florida, 33131-4332; Evan J. Langbein, Esquire, Langbein & Langbein, P.A., Counsel for Respondents, Lorenzo and Ana Camargo, at 8181 N.W. 154 Street, Suite #105, Miami Lakes, Florida 33014; and R. Daniel Koppen, Esq., Koppen, Watkins, Partners & Associates, P.A., Co-Counsel for Respondents, Lorenzo and Ana Camargo, at 1025 South (Old) Dixie Highway, Delray Beach, Florida, 33483. By: JORGE A. LOPEZ
CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the foregoing Brief on Jurisdiction of Respondent, Union American Insurance Company, is submitted in Times New Roman 14-point font in compliance with Fla. R. App. P. 9.210(a)(2). By: JORGE A. LOPEZ