Legal Report, September 2017
General Counsel, Jennifer G. Ashton
Davis & Ashton, P.A.
1. Mathers v. Wakulla Cnty., 219 So. 3d 140 (Fla. 1st DCA 2017). Dedication; Roads.
The Mathers and Mitchells are adjoining landowners on Kristin Lane. In July 2014, the Mitchells erected a fence and gate on the part of their property abutting Kristin Lane. In an effort to block the Mathers from using the road, the Mitchells closed the gate across Kristin Lane and posted a "No Trespassing" sign. The Mitchells claimed that the part of the road traversing their land was privately owned while the Mathers claimed it was publicly owned. The Mathers sued Wakulla County seeking a declaratory judgment that Kristin Lane was a public road, and that the County had a duty to maintain and repair it. They also sued the County for inverse condemnation on grounds that the County had diminished access to their property because the County failed to remove the fence and properly maintain a public roadway. The trial court granted summary judgment in favor of the County holding that private property owners could not force a government to take ownership of a roadway; and also that the County never accepted ownership or dedication of Kristin Lane.
On appeal, the 1st DCA reversed the trial court holding that under Section 95.361, F.S., which relates to dedication of roadways, there is no requirement that the County officially accept a dedication of a private roadway in order for that dedication to be valid. The statute, instead, focused on whether the government maintained the roadway as a public roadway for a requisite number of years. In this case, evidence was presented to the trial court that the County had routinely maintained Kristin Lane for over 20 years. Also, Kristin Road had been designated as a County road by a green road sign. Based on the evidence, the 1st DCA held that ownership of Kristin Road automatically passed to the County at the moment it provided regular maintenance and repair for the prescribed period of time (7 years in this case), regardless of any acceptance on the part of the County. The 1st DCA also held private parties could invoke Section 95.361, F.S., against governments. In other words, private parties have the right to force local governments to take ownership of roadways that they have impliedly accepted under the terms of the statute.
2. GolfRock, LLC v. Lee Cnty., Fla., 2017 Fla. App. LEXIS 9691, 42 Fla. L. Weekly D 1514, 2017 WL 2882716 (Fla. 2d DCA 2017). Rezoning; Regulatory taking.
GolfRock, LLC submitted an application to Lee County (“County”) seeking to rezone a parcel of land. The County amended its comprehensive plan and thereafter asked GolfRock to withdraw its rezoning application. GolfRock did not withdraw the application; however, the County deemed it withdrawn based on the comprehensive plan amendment. GolfRock filed an action for declaratory judgment against the County seeking a declaration from the Court that any further proceedings before the County would be futile, and that GolfRock could immediately sue the County for inverse condemnation and a Bert J. Harris claim. The County argued that regardless of which type of takings claim GolfRock might eventually pursue, its claims were not ripe and the futility exception to the ripeness doctrine did not apply. The trial court did not dismiss the case outright, but instead granted a summary judgment motion in favor of the County on grounds that GolfRock had not established its claim was ripe nor had it established "applicability of the futility exception".
On appeal, the 2nd DCA reversed the trial court and held that the trial court should never have reviewed the merits of the case through a summary judgment motion. GolfRock failed to state a cause of action for declaratory relief and the case should have been dismissed outright in favor of the County. To state a cause of action for declaratory relief, the plaintiff must be able to show that it is in doubt of its rights. Here, GolfRock was not in doubt of its rights. GolfRock said that it was undeniably futile to proceed with any further development applications in front of the County. It just wanted the Court to agree with it so it could sue the County for inverse condemnation and a Bert J. Harris claim. The Court stated that plaintiffs cannot use declaratory judgment actions to get courts to “render advisory opinions or give legal advice.” GolfRock should have just filed for an inverse condemnation claim or Bert J. Harris claim and litigated the futility argument in that case. In summary, parties cannot use the courts to try out legal theories before bringing monetary claims against local governments.
3. Town of Lauderdale-By-The-Sea v. Ober, 2017 Fla. LEXIS 1804 (Fla. 2017). Lis pendens and Foreclosure: UPDATE.
This case was first reported in September 2016. On November 26, 2007, a bank recorded a lis pendens on a property as part of a foreclosure action. On September 22, 2008, the bank obtained a final judgment of foreclosure. After the final judgment had been entered, the Town of Lauderdale-By-The-Sea (“Town”) recorded multiple code enforcement liens on the property. Thereafter, the property was sold at foreclosure sale and a certificate of title issued. The new owner, Ober, sued to remove the liens. The Town counterclaimed to foreclose the liens. The trial court found in favor of the Town.
On appeal, the issue was whether the Town’s liens recorded after final judgment, but before judicial sale, were extinguished by Florida’s lis pendens statute (§ 48.23, F.S.) The 4th DCA, on rehearing, held that the Town’s liens were discharged by judicial sale even though they were recorded after the final judgment of foreclosure. The 4th DCA noted that in accordance with the proper reading of § 48.23(1)(d), F.S., when a foreclosure action is prosecuted to a judicial sale, that sale discharges all liens, whether recorded before or after the final judgment if the lienor does not intervene in the action within 30 days after recording the notice of lis pendens.
UPDATE: This cause was submitted to the Florida Supreme Court on a certified question of great public importance. On September 6, 2017, the Supreme Court declined to exercise jurisdiction, and refused to entertain any motions for rehearing. Therefore, the 4th DCA’s ruling against the Town stands.