final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; William W. Haury, Jr.,
Judge; L.T. Case No. 07-019309.
Matthew P. Leto of Hall, Lamb, Hall & Leto, P.A., Miami,
J. Baumann and Telsula C. Morgan of Lewis, Longman &
Walker, P.A., West Palm Beach, for appellee.
case of "what's up, dock?, " both Appellants
Marianne Goldman, Wayne Goldman, and Sean Acosta ("Unit
Owners") and Appellee/Cross-appellant Stephen
Lustig seek a declaration of their rights to a dock located
behind Lustig's property. As set forth below, we find
that the trial court should have determined the parties'
rights and, upon adjudication of those rights, should have
found that Unit Owners were entitled to use a portion of the
dock, but were not entitled to access that dock by way of an
easement by necessity. We reverse and remand for the trial
court to amend its final judgment consistent with this
case involves a multi-year dispute over the right to use and
access a wooden dock located behind Lustig's waterfront
property. In 2007, Unit Owners filed a complaint seeking a
declaration of their right to use a portion of that dock, as
well as a permanent injunction to prevent Lustig from
prohibiting their continued use of the dock. Unit Owners and
Lustig lived in a community called 900 Hillsboro Mile,
located in Broward County. Blue Paper, Inc. originally
developed the community. It is comprised of four separate
townhouse units, common areas, and a dock located behind the
first unit. The Declaration of Covenants and Restrictions
("Declaration") for 900 Hillsboro Mile established
a homeowner's association ("Association"). In
their complaint, Unit Owners explained that the Association
and Lustig entered into a quitclaim assignment
("Assignment") in which Lustig expressly severed
his riparian rights to a portion of the dock.
answered and filed his counterclaim. He also sought a
declaratory judgment that would detail his rights to the dock
behind his unit, and requested a permanent injunction to
enjoin Unit Owners from using any portion of the dock as well
as accessing it from his property.
years of litigation, the parties attended a bench trial in
2014. Lustig argued that he was entitled to exclusive
possession and control of the dock by way of his special
warranty deed. He admitted it was true that plans for 900
Hillsboro Mile originally demonstrated that there would be
two different access piers connecting to one horizontal strip
of the dock, such that both Lustig and Unit Owners would use
the dock. However, he explained that those plans since
changed. He then addressed the Assignment, and argued it was
invalid because the Association did not have the authority
under the Declaration to assign any dockage rights.
rebuttal, Unit Owners pointed to the Assignment, where
"Mr. Lustig . . . recognized [that] his right to use the
dock consisted only [of] 44 feet of dock located in the
outside northwest corner of the dock, as described in the
attached drawing on the dock." Unit Owners then
explained that the original license for the dock, issued by
the Broward County Department of Planning and Urban
Protection, stated the dock was "for a multi-family
unit, or units in question."
then testified. During direct examination, he added that he
should have exclusive possession and control of the dock
because, years earlier, the Florida Department of
Environmental Protection ("DEP") declined to grant
a request for a license that would allow the Association and
Unit Owners to construct a marginal dock in addition to the
already existing dock. Lustig noted how DEP
"specifically said that they [the Association] need my
consent to build the dock." However, later during
cross-examination, he stated that "I'm contending
that I own the vertical piece, and the horizontal piece to a
certain point." He further agreed with Unit Owners'
counsel that Unit Owners "have the rest of the dock,
" but that "they just can't get to it." He
explained he would have no problem with Unit Owners having a
portion of the dock, as long as they built their own pier to
access that dock: "They can [use their portion of the
dock] if they build a pier, and I have no objection to that .
. . . They can get to what they own on their own
trial, the trial court entered its written final judgment,
dismissing both Unit Owners' complaint and Lustig's
counterclaim, and concluding that "no party