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Goldman v. Lustig

Florida Court of Appeals, Fourth District

January 24, 2018


         Not final until disposition of timely filed motion for rehearing.

         Appeal 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, for appellants.

          Andrew J. Baumann and Telsula C. Morgan of Lewis, Longman & Walker, P.A., West Palm Beach, for appellee.


          FORST, J.

         In a case of "what's up, dock?, " both Appellants Marianne Goldman, Wayne Goldman, and Sean Acosta ("Unit Owners")[1] 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 opinion.


         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.

         Lustig 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.

         After 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.

         In 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."

         Lustig 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 manner."

         After trial, the trial court entered its written final judgment, dismissing both Unit Owners' complaint and Lustig's counterclaim, and concluding that "no party ...

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