IN THE SUPREME COURT OF FLORIDA

Case No.: SC13-1852 LT: 2D12-1031

STEPHEN T. SINATRA and JANICE SINATRA,

Petitioners,

v.

ARTHUR M. BUSSEL, LORI ANN BUSSEL, JOHN A. BALOG and SOMERS TITLE COMPANY,

Respondents.

--------------_/

JURISDICTIONAL BRIEF OF RESPONDENT, JOHN A. BALOG

SUBMITTED BY: Charles F. Johnson, Esquire FBN: 898937 Primary Email: cjohnson@blalockwalters.com Secondary Email: eservice@blalockwalters.com Marisa J. Powers, Esquire FBN: 795771 Primary Email: mpowers@blalockwalters.com

753443/1

Electronically Filed 10/18/2013 09:24:39 AM ET

RECEIVED, 10/18/2013 09:28:37, Thomas D. Hall, Clerk, Supreme Court

Secondary Email: eservice@blalockwalters.com Amanda C. Smith, Esquire FBN: Pending Primary Email: asmith@blalockwalters.com Secondary Email: eservice@blalockwalters.com BLALOCK WALTERS, P.A. 802 11 th Street West Bradenton, Florida 34205 Telephone: 941.748.0100 Facsimile: 941.745.2093 Attorneys for Respondent,

John A. Balog

753443/1

1

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

I. STATEMENT OF THE FACTS AND CASE 1

II. SUMMARY OF ARGUMENT 4, 5

III. ARGUMENT 5

THE SECOND DISTRICT COURT OF APPEAL'S DECISION IN THE INSTANT CASE DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE SUPREME COURT'S DECISION IN WILLIAMS v: GUTHRIE, 137 So. 682 (FLA. 1931), OR STEIN v: BROWN PROPERTIES, INC., 104 SO.2D 495 (FLA. 1958) 5

IV. CONCLUSION 10

V. CERTIFICATE OF SERVICE 11

VI. CERTIFICATE OF COMPLIANCE 12

753443/1

11

TABLE OF AUTHORITIES

Cases Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006) 6

Diamond Berk Insurance Agency, Inc. v. Goldstein, Fla., 100 So.2d 420 5

Dober v. Worrell, 401 So.2d 1322 (Fla. 1981) 10

Jc. v. State, 988 So.2d 1202 (Fla. 2008) 6

Jenkins v. State, 385 So.2d 1356 (Fla. 1980) 5

Sinnamon v. Fowlkes, Fla., 101 So.2d 375 5

Stein v. Brown Properties, Inc., 104 So.2d 495 (Fla. 1958) 4, 6

Williams v. Guthrie, 137 So. 682 (Fla. 1931) 4,6

Statutes

Section 718.401(1), Fla.Stat. 3

Constitutions

Art. V, §3(b)(3), Fla. Const. 5

753443/1

111

I. STATEMENT OF THE FACTS AND CASE

This case involves two condominium units, one in the Sterling

Condominium (generally the "Sterling Condominium" and specifically the

"Sterling Unit") and one in the Sunset Watch Condominium (generally the "Sunset

Watch Condominium" and specifically the "Sunset Watch Unit") (A.2).1 The

Sterling Unit and the Sunset Watch Unit were, prior to this dispute, both owned by

Arthur and Lori Ann Bussell ("Bussells") (A.2).

The Sterling Unit is on the waterfront (A.2). The declaration of

condominium for the Sterling Condominium (the "Sterling Declaration") provides

for the Sterling Unit to own an interest in a dock and boat slip (the "Boat Slip")

(A.2). Under the Sterling Declaration, the Boat Slip is designated a limited

common element for the exclusive use of the Sterling Unit (A.2). The Sterling

Declaration specifically addresses the transfer of boat slips - they may be

transferred, but only to an owner ofanother unit in the Sterling Condominium

(A.2).

The Sunset Watch Condominium is adjacent to the Sterling Condominium

(A.2). The Sunset Watch Condominium was developed several years after the

development of the Sterling Condominium and has a separate declaration of

condominium (the "Sunset Watch Declaration") (A.2-3). Nevertheless, the Sunset

I "(A.~" refers to Sinatras' Appendix to their Jurisdictional Brief.

753443/1

1

Watch Condominium is referred to a "second phase" of the Sterling Condominium

(A.2). As part of the development of the Sunset Watch Condominium, the Sterling

Declaration was amended to allow for the "leasing" of boat slips in the Sterling

Condominium to owners in the Sunset Watch Condominium (A.2-3). The clear

language of the amendment to the Sterling Declaration did not allow for the

transfer of any ownership interest in the Boat Slip to owners in the Sunset Watch

Condominium (A.6)

At a time when the Bussells owned both the Sterling Unit and the Sunset

Watch Unit, the Bussells entered into a transaction with Stephen Sinatra and Janice

Sinatra ("Sinatras") (A.3). In the transaction, the Bussells: (a) sold the Sunset

Watch Unit to the Sinatras and (b) gave the Sinatras a quit claim deed to the Boat

Slip (A.3).

Following the transaction, the Bussells sold the Sterling Unit to John A.

Balog ("Balog,,).2 The deed from the Sinatras to Balog specifically included the

Boat Slip. Balog then sought to exclude the Sinatras from the Boat Slip (A.3).

The Sinatras filed a suit for declaratory judgment seeking to establish title to the

Boat Slip pursuant to the quit claim deed for the Boat Slip (A.3).

In the trial court proceedings, both parties moved for summary judgment

2 Without citation to the district court opinion, Sinatras' brief on pages 2 and 3 makes reference to the Sinatras' "slant" on the Balog transaction. The Sinatras' view was not adopted by the trial court or the district court. Moreover, the violation of the rules applicable to this Court is telling.

2 753443/1

based on the interpretation of the Sterling Declaration (A.3). Specifically, the

parties agreed on the facts and requested that the matter be decided as a matter of

law (A.3). The trial court entered summary judgment in favor of Balog (AA).

On appeal, the Sinatras argued for the first time that the Boat Slip had not

been properly submitted to condominium ownership under Chapter 718 of the

Florida Statutes (the "Condo Issue") (AA). The Sinatras cited §718A01(1),

Fla. Stat. which states that where a condominium is located on leased land, the

underlying lease must be for at least fifty years (AA). The Sinatras then argued

that since the lease (the "Lease") for the submerged lands (the "Submerged

Lands") between the Sterling Condominium Association and the State of Florida

was for only five years, that the Boat Slip was not, therefore, properly submitted to

condominium ownership (AA). Importantly, the Condo Issue did not call into

question the ownership of the Submerged Lands. The Submerged Lands are - in

all events - owned by the State of Florida and leased to the Sterling Condominium.

What is in question is who gets to use the Boat Slip - that exists with the express

consent of the State of Florida.

On appeal, the Second District Court of Appeal affirmed the finding that the

trial court's interpretation of the Sterling Declaration was correct (A.6-7).

Moreover, the court found that the Condo Issue was not properly preserved for

review since the issue was raised for the first time on appeal (AA-5). In its

3 753443/1

opinion, the court did not cite to or otherwise address in any way this Court's

opinions in Stein v. Brown Properties, Inc., 104 So.2d 495 (Fla. 1958) or Williams

v. Guthrie, 137 So. 682 (Fla. 1931).3

II. SUMMARY OF ARGUMENT

Sinatras have failed to demonstrate an "express and direct" conflict within

the four comers of the Second District's opinion. The two cases cited by Sinatras,

Williams and Stein, require Florida courts to take notice of the state's rights to

submerged lands when those rights are threatened, even when the state is not a

party to the lawsuit. Stein involved an attempt by a private party to sell fifty-four

acres of submerged lands over the state's objection. Williams involved a private

party's ejectment action for a dock over submerged lands. Since an ejectment

action requires title to the land in question, the private party's action clearly

implicated the ownership rights of the state in the same submerged lands.

In the cases ofStein and Williams, the state's right of ownership in

submerged lands was clearly threatened by the actions of private parties. In cases

such as those, Florida courts should indeed take notice of and protect the state's

rights. However, the instant case presents no such threat. The state unquestionably

owns the Submerged Lands at issue. The state has knowingly leased the

3 Balog did not overlook the discussion of Sinatras' motion for rehearing in the district court. Similar to the discussion in footnote 1, discussion regarding a motion for rehearing, which is not part of the district court's opinion, is not proper here.

753443/1

4

Submerged Lands to the Sterling Condominium Association. The only question

before this Court is whether the Sinatras or Balog gets to use the Boat Slip over the

Submerged Lands for the duration of said Lease.

Any other questions presented by Sinatras were not raised in the trial court,

and are, therefore, improper for this Court to consider.

III. ARGUMENT

THE SECOND DISTRICT COURT OF APPEAL'S DECISION IN THE INSTANT CASE DOES NOT EXPRESSLY AND DIRECTLY CONFLICT

WITH THE SUPREME COURT'S DECISION IN WILLIAMS V. GUTHRIE, 137 So. 682 (FLA. 1931), OR STEIN V. BROWN PROPERTIES, INC., 104 SO.2D 495

(FLA. 1958)

Under the Florida Constitution, specifically Section 3(b)(3) ofArticle V, this

Court has discretionary jurisdiction where the decision of a district court of appeal

expressly and directly conflicts with this Court on the same question o/law. This

Court, in Jenkins v. State, 385 So.2d 1356 (Fla. 1980) has acknowledged its

narrowly defined role in the Florida judicial system:

We have heretofore pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed. Diamond Berk Insurance Agency, Inc. v. Goldstein, Fla., 100 So.2d 420; Sinnamon v. Fowlkes, Fla., 101 So.2d 375. It was never intended that the district courts of appeal should be intermediate courts. The revision and modernization of the Florida judicial system at the appellate level was prompted by the great volume of cases reaching the Supreme Court and the consequent delay in the administration ofjustice. The new article embodies throughout its terms the idea of a Supreme Court which functions *1358 as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to

5 753443/1

the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute.

Consistent with the foregoing quotation, this Court has literally and strictly

interpreted the term "express" to mean "to represent in words" or "to give

express to." Id. at 1359. Similarly, the term "expressly" means "in an

express manner." Id. Very simply, there must be particular language of the

district court's opinion that is irreconcilable with established precedent of

this Court. See Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla.

2006). Finally, it is not enough that the record of proceedings below is in

conflict with a decision of this Court; the express and direct conflict must be

apparent from the four comers of the district court's majority opinion. See

J. C. v. State, 988 So.2d 1202 (Fla. 2008).

In the instant case, Sinatras assert that the district court's opinion is in

express and direct conflict with this Court's opinions in Williams v. Guthrie, 137

So. 682 (Fla. 1931) and Stein v. Brown Properties, Inc., 104 So.2d 495 (Fla. 1958)

(B.6t. Sinatras tacitly acknowledge that the district court's opinion does not cite

to Williams or Stein. Nevertheless, Sinatras persist in arguing the district court's

failure to address the Condo Issue somehow is in express and direct conflict with

Williams or Stein. It is not. An examination of this Court's opinions in Williams

4 "(B.-l" refers to Sinatras' Jurisdictional Brief.

6 753443/1

and Stein reveals the fallacy of Sinatras' logic.

In Stein, the buyer brought a suit for specific performance. The underlying

contract was for approximately 186 acres of land. A significant portion of the land

- about fifty-four acres - was either "subject to overflow of the tides" or

"submerged in the Atlantic Ocean." The buyer sought a declaration that the seller

had marketable title and for specific performance of those lands properly titled.

Importantly, the State of Florida intervened in the suit. Thus, there could be no

argument that the State's rights were being adjudicated without notice. That this

Court should consider the interests of the State of Florida where one private party

is seeking to sell fifty-four acres of land that was covered by tidal flow or simply

under the ocean is axiomatic.

The facts and holding of Stein are simply inapplicable here. In the instant

case, the State of Florida entered into a Lease with the condominium association

for the Sterling Condominium. The Lease, by definition, confirms that the

landlord (State of Florida) is the owner of the underlying Submerged Lands and

that tenant (Sterling Condominium) does not claim ownership of the Submerged

Lands. Thus, the key distinction in our case is that none of the parties (Sinatras,

Balog, or the Sterling Condominium) are claiming ownership of the Submerged

Lands. The Submerged Lands are owned by the State of Florida and are leased to

the Sterling Condominium. The district court's decision to decline to address the

7 753443/1

Condo Issue - raised for the first time on appeal - is not in conflict with Stein.

Indeed, the Stein opinion does even address the same question oflaw.

Similarly, the Williams opinion contains no express and direct conflict with

the district court's opinion below. In Williams, the plaintiff brought a suit for

ejectment to recover possession of a dock over submerged lands. The State of

Florida was not a party to the suit. This Court observed that "private parties cannot

by ejectment recover possession of lands under navigable waters when such parties

have no legal title to or right to use the land ..." This Court also specifically

found that the dock in question was a "purpresture" and explained that such a dock

invaded on the rights of the State of Florida. Without a present right ofpossession,

the remedy of ejectment was not available to the plaintiff. The narrow ruling by

this Court denied the remedy of ejectment, but did not - contrary to the assertions

of the Sinatras - adjudicate title to the submerged lands in any way.

On rehearing, the plaintiff in Williams argued that he did own the submerged

lands - and was therefore entitled to ejectment - pursuant to a statute not

previously cited in the litigation. This Court denied the rehearing and indicated

that since the plaintiff - much like the Sinatras - had not claimed title to the

submerged lands in the trial court, he could not do so for the first time on

rehearing. Indeed, this Court found it was without jurisdiction to adjudicate title to

the submerged lands. Notably, the language relied upon by the Sinatras here

753443/1

8

appears only in the "rehearing section" of the Williams opinion wherein this Court

expressly declined to address the issue of title.

A proper reading of the Williams case discloses it has no application here.

In Williams, two private parties sought a declaration as to who had the right to

possess a dock constructed over submerged lands. The State of Florida was not

joined in the suit. The Florida Supreme Court found that the dock encroached on

the rights of the State of Florida (i.e., a purpresture) and, therefore, concluded that

neither party was entitled to ejectment. In contrast, in the instant case, there is no

dispute regarding the ownership or title to the Submerged Land. Without a dispute

as to the Submerged Land, the Williams case has no application.

Lastly, in a transparent attempt to create jurisdiction where it does not

otherwise exist, the Sinatras have attempted to re-characterize the district court's

straightforward ruling. The court below ruled that: (a) the Sterling Declaration did

not allow the sale of the Boat Slip to the Sinatras and (b) the Condo Issue was not

properly preserved for review. Contrary to the assertion in the Sinatras' brief, the

trial court and the district court did not declare that the Boat Slip was properly

submitted to condominium ownership under Chapter 718 of the Florida Statutes

(B.l, 6).

Even if this Court were to conclude that it had jurisdiction over this

controversy, the Court should decline to exercise it. Among other things, the fact

9 753443/1

that the Condo Issue was raised for the first time on appeal creates, by definition, a

circumstance where this Court would be deciding an issue with an inadequate

record. The parties below had no reason to call the proper witnesses or secure the

salient records regarding the Condo Issue. For this Court to decide the Condo

Issue on this understandably inadequate record would be a miscarriage ofjustice.

Moreover, if this Court were to decide to remand this matter to the trial court

for further proceedings, it would be inconsistent with this Court's long established

policy of finality. See e.g., Dober v. Worrell, 401 So.2d 1322 (Fla. 1981)

(recognizing that it is inappropriate to raise issues for the first time on appeal and,

also, that failure to adhere to that maxim creates a mockery of the finality concept

of our justice system). The parties litigated all of the issues raised in the trial court.

Balog prevailed. It would be fundamentally inequitable for Balog to be subjected

to yet another trial court proceeding on new issues raised for the first time on

appeal.

IV. CONCLUSION

Based upon the foregoing, Balog respectfully requests this Court decline to

accept jurisdiction.

753443/1

10

V. CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by electronic mail to Timothy W. Weber, Esq.,

timothy.weber@webercrabb.com, Amanda A. Felten, Esq.,

amanda.adams@webercrabb.com; Joseph Kalish, Esq., josephkalish@aol.com;

Michael Kraft, Esq., mkraft@conroysimberg.com,

eservicetpa@conroysimberg.com; Arthur and ~n Busse!, mel@asseenontv.us

on this Ie day of October, 2013. , L~~~r~? ,/r

Cha¥n F.lbhnson, Esq FBbT: 9 37 pri~.l'ary' mail: c·ohnsonblockwalters.com Se9pnd ry Email: ese '. i blalockwalters.com Ma' J. Powers, Esquire FBN: 795771 Primary Email: mpowers@blalockwalters.com Secondary Email: eservice@blalockwalters.com Amanda C. Smith, Esquire FBN: Pending Primary Email: asmith@blalockwalters.com Secondary Email: eservice@blalockwalters.com Blalock Walters, P.A. 802 11 th Street West Bradenton, Florida, 34205 Telephone: 941.748.0100 Facsimile: 941.745.2093 Attorneys for John A. Balog

753443/1

11

VI. CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that this Answer Brief complies with the font

requirements ofFla.R.App.P. 9.210(a)(2).

li' \\\ 'IJ.;''

753443/1

12