VLX PROPERTIES, INC. v. SO. STATES UTILITIES, INC.

Decision Date21 May 2001
Docket NumberNo. 5D99-3314.,5D99-3314.
PartiesVLX PROPERTIES, INC., Appellant, v. SOUTHERN STATES UTILITIES, INC., et al., Appellees.
CourtFlorida District Court of Appeals

Bruce A. Hanna and C. Allen Watts of Cobb Cole & Bell, Daytona Beach, for Appellant.

Gordon H. Harris, Tracy A. Marshall and Kent Hipp of, Gray, Harris & Robinson, P.A., Orlando, for Appellees.

ON MOTION FOR REHEARING EN BANC

HARRIS, J.

We grant en banc review of a panel opinion which reversed the trial court's decision that inverse condemnation had not been established because the trial court, the panel determined, had applied the wrong standard. The panel decision was based on our previous decision in this case, VLX Properties, Inc. v. Southern States Utilities, Inc., 701 So.2d 391 (Fla. 5th DCA 1997), hereinafter referred to as "VLX1." Because we find that this court erred in VLX1 and that to adhere to that decision would work "a manifest injustice," we recede from VLX1 and thereby affirm the decision on appeal. See Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965)

.

VLX is currently the owner of certain property which includes a portion of James Pond, the "property" at issue in this case. VLX obtained its interest from Lawyers Title Investment Fund (hereinafter "Lawyers") after the alleged acts relied on for inverse condemnation. James Pond is partially on property previously conveyed to Glen Abbey Golf Course, Inc. (hereinafter "Glen Abbey") for use in its golf course operation. The ownership of that portion of the pond not included in the sale to Glen Abbey remained under the ownership of Lawyers or other adjacent land owners.

Glen Abbey had for years irrigated its golf course from wells. However, when reclaimed water became available in the area, Glen Abbey was administratively prohibited from continuing to draw down ground water and was required to use reclaimed water to irrigate its golf course. It contracted with Southern States Utilities, Inc. (Southern States) to provide the irrigation services.

The agreement between Glen Abbey and Southern States contemplated that since reclaimed water would be placed into various ponds, including James Pond, Lawyers, still the owner of a portion of the pond after the sale to Glen Abbey, would have to join in the agreement confirming that it had no objection to reclaimed water being put into James Pond. Another requirement of the Glen Abbey/Southern States agreement was that flowage easements over the bottom of the pond would be obtained from all the other owners of James Pond who were not involved in the Lawyer's Title/Glen Abbey sales agreement. Lawyers joined in the agreement, which described the affected property as including all of the bottom of James Pond owned by it, and this agreement was recorded in the public records. Flowage easements were then obtained from all the owners who did not join in the agreement. Events then proceeded as intended and reclaimed water was placed into James Pond. Sometime thereafter, Lawyers conveyed its interest to VLX. VLX now claims that since the reclaimed water flowed not only over the property conveyed by Lawyers to Glen Abbey but also onto that portion of the pond retained by Lawyers after the sale to Glen Abbey, the actions of Southern States in putting reclaimed water into James Pond exceeded the authority granted by the Lawyers joinder. This is because, contends VLX, Southern States did not obtain a separate flowage easement from Lawyers. VLX claims that it is now entitled to compensation by way of inverse condemnation because the water was permitted to flow over that portion of the pond subsequently acquired by it. In effect, VLX contends that the water's flow should have been restricted by a metes and bounds "dam."

In VLX1, we interpreted the description of the property relating to the joinder to exclude property outside the sales agreement because of "scrivener's error." Scrivener's error, however, requires a mutual mistake. There is certainly no evidence that Glen Abbey or Southern States intended that the consent evidenced by the joinder was limited to only a portion of James Pond. We now believe that we erred in VLX1 by amending the legal description contained in the agreement.

After Lawyers executed the joinder agreement consenting to the water being put into ponds, including James Pond, "on and/or adjacent" to the property being conveyed by it to Glen Abbey, a separate flowage easement from Lawyers would have been redundant. Otherwise, its joinder would have been a mere sham, certainly not intended by any party. It is simply too fanciful to imagine that Lawyers intended that water be placed into the pond yet not flow beyond the golf course's invisible boundary. Further, had Lawyers expected to also sell a flowage easement over its adjacent portion of the pond, surely it would have said so in the joinder.

Indeed, as pointed out in the dissent in VLX1, the corporate officer of Lawyers confirmed that by joining in the reclaimed water agreement, it was intended that flowage throughout the pond would occur. Lawyers wanted the pond completely filled so that it could sell waterfront lots.

In VLX1, the majority held that because the reclaimed water agreement drafted by Southern States conditioned the agreement on Southern States being able to get flowage easements from the other owners of the bottom of the holding ponds (including James Pond), this shows that the parties understood that a flowage easement would be required from Lawyers. This proves just the opposite. The fact that Southern States obtained a flowage easement from all other owners of the bottom of the pond and yet did not seek one from Lawyers and then operated the reclaimed water service for a long period of time without objection from Lawyers, convincingly shows that Lawyers consented to the water flowing throughout the pond without expecting additional compensation. Again, this is demonstrated by the reclaimed water agreement in which Lawyers joined which described the ponds to be used as storage as being "on and/or adjacent" to the property subject to the agreement.1 Precedent (stare decisis), and law of the case for that matter, is like tradition in that it provides a valuable connection to the past. It assists in providing consistency and predictability, both valuable qualities in law. But neither precedent (nor law of the case) should be used to institutionalize or justify error. We are no more perfect as judges than we are as individuals. We make mistakes. Neither the public nor the Bar expect us to always be right; they do expect us, however, to always be forthcoming. If it appears that we have made a mistake, we should not hesitate to correct it and, if it is still within our power to do so, we should mitigate any damage we have caused. Neither this court nor the law is served by our adhering to a previous position which we now believe to be wrong.

We recede from VLX1 and, on the basis of the tipsy coachmen rule, withdraw the current panel opinion and affirm the decision below.

AFFIRMED.

THOMPSON, C.J., GRIFFIN, PALMER and ORFINGER, R.B., JJ., concur.

COBB, J., concurs and concurs specially with opinion.

SHARP, W., dissents, with opinion in which PETERSON, SAWAYA and PLEUS, J., concur.

PETERSON, J., dissents, with opinion with which SHARP, W., SAWAYA, and PLEUS, JJ., concur.

COBB, J., concurring and concurring specially.

In this case the trial court has gotten it right twice, and that should be enough. What began as a simple, uncomplicated arrangement to water a golf course has evolved into a protracted quest for damages and attorney fees. That quest should now be terminated. The basic arrangement was set out in our opinion in VLX Properties, Inc. v. Southern States Utilities, Inc., 701 So.2d 391, 393 (Fla. 5th DCA 1997), hereinafter referred to as VLX I:

In June of 1990, SSU entered into an Easement and Reclaimed Water Delivery Agreement ("Delivery Agreement") with Glen Abbey Golf Course, Inc. ("GAGC"), which granted to SSU the right to discharge certain reclaimed water onto GAGC's golf course. Because GAGC did not yet own all of the real property over which the reclaimed water was to be discharged, a Joinder and Consent addendum to that Delivery Agreement was executed by Lawyer's Title Investment Fund, Inc., ("LTIF"). LTIF, at the time of the execution of the Delivery Agreement, owned multiple parcels of land in the Glen Abbey planned unit development ("PUD") including nine holes of the golf course which it had contracted to sell to GAGC. LTIF eventually conveyed this portion of the golf course to GAGC, and conveyed its remaining ownership in the subdivision to appellant VLX.

The so-called Delivery Agreement and the Joinder and Consent addendum thereto were badly drafted, but the various parties involved apparently were content with the arrangement for some period of time. In 1991, Lawyers Title defaulted on the mortgage encumbering its property, and executed a deed in lieu of foreclosure to VLX, the designee of the mortgagee, C.V. Reit, Inc. VLX was a corporation formed by Reit to hold title to the property, which includes a portion of James Pond. All went well with the golf course and the surrounding development for several years until heavy rainfalls in 1993 caused James Pond, a repository for the storage of the reclaimed water, to overflow. This prompted VLX to file suit against SSU for inverse condemnation, asserting the "use and overuse of James Pond." See VLX I at 395.

The parol evidence at trial, which was accepted as fact by the trial judge in VLX I, was that Lawyers Title had consented to the use of its portion of James Pond (now owned by VLX) for purposes of storage of the reclaimed water piped to the golf course, and that VLX was on constructive notice of this fact giving rise to a duty of inquiry because of a foreclosure report furnished to it and because of recordation of the Delivery Agreement. Therefore, the "use" of ...

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