BB Inlet Prop., LLC v. 920 N. Stanley Partners, LLC

• Decision Date: 11 March 2020
• Docket Number: No. 4D18-3765,4D18-3765
• Citation: 293 So.3d 538
• Parties: BB INLET PROPERTY, LLC, Appellant, v. 920 N. STANLEY PARTNERS, LLC, Appellee.
• Court: Florida District Court of Appeals

293 So.3d 538

BB INLET PROPERTY, LLC, Appellant,

v.920 N. STANLEY PARTNERS, LLC, Appellee.

No. 4D18-3765

District Court of Appeal of Florida, Fourth District.

March 11, 2020

Gary J. Nagle of Law Office of Gary J. Nagle, Juno Beach, and David Mark Levin of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for appellant/cross-appellee.

Jeffrey C. Schneider, Stuart I. Grossman, Matthew Joseph McGuane of Levine Kellogg Lehman Schneider + Grossman, LLP, Miami, for appellee/cross-appellant.

May, J.

We are harkened back to the common law on riparian and littoral rights and their evolution to modern day in a dispute between an upland property owner ("upland owner") and a submerged land property owner ("submerged land owner"). Specifically, we are called upon to determine whether the trial court erred in determining the upland owner had the right to retain a dock that extends onto the submerged land. We find no error and affirm. On cross-appeal, the upland owner claims error in the trial court's denial of its motion for sanctions. We agree with the upland owner that sanctions were warranted, and thus reverse and remand for the trial court to determine the amount of the upland owner's attorney's fees and costs to be awarded.

The upland property is bounded on the east by the Atlantic Ocean and on the west by the Intracoastal Waterway. It includes a dock, which extends onto the submerged land and the Intracoastal Waterway.

The submerged land's prior owner acquired the property by tax deed in 1989 and was aware of the dock. In 1995, the upland's prior owner requested the Town of Manalapan's architectural commission to extend the dock. Only one person, who did not own the submerged land, objected to the extension. The commission approved the dock's extension at two public hearings. In 1996, the Department of Environmental Resources Management of Palm Beach County ("DERM") issued the wetlands alterations permit to the prior upland owner. The DERM permit approved an extension of the dock's length to 85 feet.

The current upland owner purchased the property in 2015. The submerged land went through two ownership transfers resulting in the current ownership. Neither the current upland owner, nor the submerged land owner owned the submerged land when the dock was originally built nor extended. Upon obtaining title, the current submerged land owner questioned the current upland owner's right to the dock.

The upland owner then filed a complaint requesting a declaratory judgment regarding its riparian and littoral rights to the dock. It alternatively sought to retain the dock by prescriptive easement.

In its answer, affirmative defenses, and counterclaim, the submerged land owner alleged the dock permit "was fraudulently obtained" because the permit application falsely stated that the prior upland owner also owned the submerged land. The upland owner moved to dismiss the counterclaim, arguing in part that the submerged land owner failed to plead fraud with particularity.

The trial court granted the motion and gave the submerged land owner leave to amend. The submerged land owner subsequently filed its answer, amended affirmative defenses, and amended counterclaim, expanding its allegations that the prior upland owner's permit application falsely stated he owned the submerged land as well.

The current upland owner requested the submerged land owner to provide the permit application, but the document was never produced. Ultimately, the parties agreed to an order that allowed the submerged land owner to produce the permit application. The order further provided that if the submerged land owner did not produce the document, it "stipulate[d] and agree[d] that there are no permit applications in existence in support of the fraud allegations in its Amended Affirmative Defenses and Amended Counterclaim." No document was ever produced.

The submerged land owner then filed its answer and second amended affirmative defenses alleging: 1) the upland owner's dock's installation and use of the submerged land fell outside the scope of Florida riparian rights; 2) the dock and its extension were built without the consent of the submerged land's then owner; 3) the dock substantially encroached on the submerged land owner's property rights; and 4) the dock was not constructed in compliance with all applicable building code regulations. It asserted a counterclaim to quiet title, for ejectment, and trespass.

Sanctions

The upland owner moved for sanctions under the inequitable conduct doctrine, arguing the submerged land owner's counterclaim was premised on false facts. The trial court ultimately held an evidentiary hearing where the Manalapan town manager, clerk, and another witness testified. The court also considered the town manager and clerk's affidavits. The trial court denied the motion for sanctions, finding:

The town does not have an application for a permit to build the dock which is the subject of this dispute. It is unlikely any such paper application ever existed. The town does not require submission of a written application to obtain a permit to build a dock. There exists no evidence that there was any fraud perpetrated or code violated in the procurement of a permit-authority for dock construction or extension.

The court further found, "it is patently obvious that [the submerged land owner] made his allegations based not on fact but instead on his assumptions." And, these "assumptions are erroneous and the allegations were unsupported."

But, the court ultimately concluded the inequitable conduct doctrine was inapplicable because, although the allegations were ill-advised and negligently made, they were not made in "bad-faith, vexatious, wanton, egregious or oppressive conduct or motivation."

Summary Judgment

The upland owner moved for summary judgment on all claims and counterclaims. The submerged land owner cross-moved for summary judgment. At the hearing, the upland owner argued that waiver and estoppel prevent the submerged land owner from pursuing the fraud claim because it failed to prove anyone objected to the structure being placed on the submerged land. The upland owner argued the dock was constructed in accordance with the existing regulations.

In response, the submerged land owner argued the upland owner failed to establish a prescriptive easement. It argued "the law promotes neighborliness, friendliness between parties, boundary parties and does not want to favor people losing land by acquisition or permissive use of the property." Thus, according to the submerged land owner, the upland owner's argument that no one objected should not prevail. The submerged land owner also argued the law only allows an individual to build to the low watermark unless it has some consent, which the upland owner didn't have.

The trial court granted the upland owner's motion and denied the submerged land owner's cross-motion for summary final judgment. The court concluded that the submerged land owner:

took title to the submerged land with actual knowledge of the long-extant dock which was built with permission of the Town of Manalapan. Therefore, [the submerged land owner] acquired title subject [to the upland owner's] littoral rights which include the preservation of its dock, and it is appropriate for this Court to enter summary final judgment in favor of [the upland owner] and, accordingly deny [the submerged land owner's] motion for summary final judgment.

The trial court denied the submerged land owner's motion for reconsideration. It entered its final judgment in favor of the upland owner. The judgment stated:

The Dock, including the dock pilings and dolphin pilings, are lawfully located on the Submerged Land based upon [the upland owner's] littoral rights set forth above and defined more fully by Florida law, and the prior authorization and approval of Palm Beach County and the Town of Manalapan.

The court further indicated it did not need to decide the prescriptive easement claim.

From this judgment, the submerged land owner appeals. The upland owner cross-appeals the order denying sanctions.

The Appeal

The submerged land owner argues the trial court erred in granting the upland owner's motion for summary judgment because: 1) the dock extends beyond what is allowed by the common law riparian right to construct a dock; 2) there is no evidence of the prior submerged land owner's consent to the dock's construction; 3) there is no evidence to support the upland owner's claim to a prescriptive right; and 4) the DERM permit did not authorize trespass, occupation, or construction on the submerged land without the owner's consent.

The upland owner responds that: 1) it had a littoral right to access and use navigable waters; 2) under the Public Trust Doctrine, the prior submerged land owner did not need to consent to the dock's construction; and 3) given the dock's construction in 1957, the submerged land owner waived its arguments and is estopped from now challenging the dock.

We have de novo review of an order granting summary judgment. Dennis v. Kline , 120 So. 3d 11, 20 (Fla. 4th DCA 2013).

A trial court must grant a summary judgment "if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c). "In determining whether to grant a motion for summary judgment, all facts must be taken in the light most favorable to the non-moving party." Carnes v. Fender , 936 So. 2d 11, 14 (Fla. 4th DCA 2006).

• Common Law Riparian/Littoral Rights

The central issue is whether the upland owner has a common law littoral right to the dock located on privately-owned submerged land. The answer is yes.

"Riparian rights are rights to use the water." Brannon v. Boldt , 958 So. 2d 367, 372 (Fla. 2d DCA 2007). Technically, a riparian is land with water frontage; specifically, "land abutting non-tidal or navigable river waters." Kester v....