Thrasher v. Arida

• Decision Date: 07 November 2003
• Docket Number: No. 2D02-5154.,2D02-5154.
• Citation: 858 So.2d 1173
• Parties: Vivian THRASHER, Appellant, v. Marco A. ARIDA, Appellee.
• Court: Florida District Court of Appeals

858 So.2d 1173

Vivian THRASHER, Appellant, v. Marco A. ARIDA, Appellee.

No. 2D02-5154.

District Court of Appeal of Florida, Second District.

November 7, 2003.

David A. Wallace and Morgan R. Bentley of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for Appellant.

Robert W. Boos, John H. Pelzer, and Beth A. Cronin of Ruden, McClosky, Smith, Schuster & Russell, P.A., Tampa, for Appellee. THREADGILL, EDWARD F., Senior Judge.

Vivian Thrasher appeals from a final judgment in a quiet title action brought by Marco Arida disputing whether their common root of title from the Vander Griends conveyed the fee or merely an easement across a fifty-foot strip of land adjacent to both of their properties. Because we conclude that a latent ambiguity existed in the original warranty deed, we reverse and remand for the court to take testimony concerning the quality of title intended to be conveyed.

The Vander Griends owned the original parcel of forty acres until 1969 when they conveyed ten acres of it to the Schomburgs by warranty deed (the Schomburg deed) that separately described two parcels. The deed's language first described by metes and bounds in a block-indented paragraph a parcel (referred to in this case as Parcel One) that contained 10.0 acres. Parcel One is located in the northwest corner of the original parcel and its conveyance of fee title is not disputed. The next paragraph continues at the left margin and reads "[t]ogether with a 50-foot strip for ingress and egress described...", and includes a separate metes and bounds description for that property. The disputed parcel (Parcel Two) is a 50-foot by 305-foot strip, and its acreage is not specified in the deed. The deed's next flush paragraph below Parcel Two's description includes specifically listed buildings and fixtures connected with this chicken and egg farm property and miscellaneous yard equipment.

Parcel Two runs along the remaining portion of the original parcel's western boundary to the southwest corner of the original parcel, where it intersects with a county road. The Vander Griends retained the remaining thirty acres of the original parcel (the Retained Lands) until they conveyed it to the Thrashers in 1972. Although they continued to reside and conduct a cattle farming business on the Retained Lands until 1972, the Schomburg deed did not reserve an easement or right-of-way across Parcel Two for their personal or ranching use.

In 1972, the Vander Griends conveyed to the Thrashers the fee title to the Retained Lands by deed that described the original parcel less Parcels One and Two conveyed in the Schomburg deed. On May 16, 1997, Arida acquired Parcels One and Two. He then filed the complaint in this case to quiet title in fee simple to Parcel Two. Thrasher rejected his claim, but alternatively asserted a counterclaim for a prescriptive easement or easement by necessity across the property. Therefore, the issue in dispute is whether the interest in Parcel Two transferred by the Vander Griends to the Schomburgs is fee simple title or an easement for ingress and egress.

At the bench trial, Arida's counsel asserted that the judge did not have to hear any evidence and that she could rule based on the documentary evidence alone. Arida's counsel moved for a judgment as a matter of law before the trial actually started. The court declined, indicating that it had to at least take some evidence before it would consider such a motion.

The court considered exhibits 1 and 2, the Schomburg deed and mortgage, and ruled without considering any other evidence that Robb v. Atlantic Coast Line Railroad Co., 117 So.2d 534, 536-37 (Fla. 2d DCA 1960), controlled, to the effect that the language "for ingress and egress" was descriptive and did not create less than a fee simple title. The court rejected Thrasher's argument that the ingress and egress language rendered the deed ambiguous on its face and ruled that the Schomburg deed conveyed fee simple titles to both parcels.

Following its ruling, the court allowed Thrasher's counsel to present several witnesses' proffered parol testimony on the quality of title or the grantors' intent to convey merely an easement as to Parcel Two. In particular, surveyor Leo Mills testified that Mr. Vander Griend employed him to prepare the survey that he made a week before the July 22, 1969, closing of the Schomburg deed and that his client told him that Parcel Two was intended as an easement. His survey specifically notes that the 50-foot strip was an "ingress & egress easement." However, the legal description on the survey did not include the word "easement." All of the parties to the Schomburg deed transaction relied on this survey map prior to and at the time of the closing, according to Mills.

Subsequently, the court reconvened to consider Thrasher's counterclaim and ruled that she held a common law easement, as codified at section 704.01(1), Florida Statutes (2002), over Parcel Two and established two separately...