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Nelson P. v. Goss

Florida Court of Appeals, Second District

August 7, 2019

NELSON P. and BARBARA J. SCHWOB; DARRELL L. and MARTHA K. BIRT; FRANK E. and LINDA J. BROWN; PAUL and SANDRA BROWN; DENNIS M. and CAROL J. COSMO; MARILYN C. MORSE; STEVEN P. and LAURIE A. CUMMINGS; KAROL FLEMING; SOLANGE GERVAIS; BERND J. and OPAL B. GIERSCHKE; CHARLES H. Sr. and CAROL L. LePAGE; JAMES L. and REBECCA L. MAY; LORI OFFER; ELVIRA PARDO; JAMES A. and JOYCE A. PASCO; DAVID L. and KAY J. SMITH; JAMES L. and FRANCES E. SMITH; JAMES E. and MARGO M. SYMONDS; JEANETTE M. TATRO; RICHARD and ARLENE TAYLOR; ANTHONY A. VARSALONE, JR.; and KATHLEEN R.VALK, Petitioners,
v.
JAMES C. GOSS; EDWARD HEVERAN; MARGARET E. HEVERAN; and PALM TREE ACRES MOBILE HOME PARK, Respondents.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Petition for Writ of Certiorari to the Circuit Court for Pasco County; Gregory G. Groger, Judge.

          Richard A. Harrison and Daniela N. Leavitt of Richard A. Harrison, P.A., Tampa, for Petitioners.

          Jody B. Gabel and J. Allen Bobo of Lutz, Bobo & Telfair, P.A., Sarasota, for Respondents.

          CASANUEVA, JUDGE.

         The Petitioners own individual lots located in the Palm Tree Acres Mobile Home Park. The Respondents own and operate Palm Tree Acres, and they own and lease most of the remaining lots in the park. Historically, the Respondents have provided water and sewer service and access to recreational amenities to all residents of Palm Tree Acres for an all-inclusive monthly fee. The current litigation began after one of the Petitioners unsuccessfully sought to unbundle this monthly fee and to pay for only the water and sewer service. The Respondents countered that they have no obligation to provide any services to the Petitioners. The issue currently before this court is whether the circuit court erred in granting partial summary judgment in favor of the Respondents after finding that they have a constitutional right to discontinue water and sewer service to the Petitioners. The Petitioners filed this petition for writ of certiorari challenging the circuit court's order. We agree with the Petitioners that the circuit court's order departs from the essential requirements of the law and results in material injury to them for the remainder of the case that cannot be corrected on postjudgment appeal, and we quash the order.

         I. Circuit Court Proceedings

         In the Petitioners' third amended complaint, they assert 180 counts, including claims for declaratory relief and injunctive relief which allege that the Petitioners are in doubt as to their legal and financial obligations to the Respondents and as to the legal rights of the Respondents to demand, charge, and collect payment of monthly fees. The Petitioners allege in the complaint that they purchased their lots in reliance upon the Respondents' representations and commitment to furnish potable water to their lots. They further allege that the Respondents have supplied and continue to supply potable water to the Petitioners by means of a water supply system, pumps, pipes, and connections that are owned and operated by the Respondents and that there is no other public supply of potable water available to the Petitioners.

         The Petitioners state that they are willing to pay for such services, but the Respondents have failed and refused to provide them with any detailed accounting of the actual costs of the services and have threatened to terminate the services. The Petitioners asked the circuit court to enter a judgment finding, determining, and declaring the rights and duties of the parties with respect to the potable water supply and the amounts that the Petitioners can be charged for such water supply. They acknowledge that there is no written agreement between the parties with respect to the Petitioners' properties.

         The Respondents filed a motion to dismiss the third amended complaint, arguing that the complaint's demand that the circuit court order the Respondents to provide utility services to the Petitioners and set the rates for those utility services is within the exclusive jurisdiction of the Florida Public Service Commission (PSC). The circuit court issued an order granting in part and denying in part the Respondents' motion to dismiss, finding that the determination regarding whether the Respondents must provide water and sewer service to the Petitioners, and the rate that can be charged for such service, was within the jurisdiction of the PSC.[1]

         Thereafter, the Respondents filed their answer, affirmative defenses, and counterclaims. In count one of the counterclaim, the Respondents sought a declaratory judgment that they are entitled to a full bundle of ownership rights that are guaranteed by article I, section 2, of the Florida Constitution. The Respondents filed a motion for partial summary judgment asking the circuit court to grant judgment in their favor on this counterclaim, arguing that only the circuit court has jurisdiction to determine this constitutional claim and that the PSC lacks jurisdiction to do so. The Petitioners filed an answer and affirmative defenses to the counterclaim alleging, among other grounds, that the PSC had exclusive jurisdiction over this issue.

         The circuit court agreed with the Respondents' arguments and granted their motion for partial summary judgment. The court reasoned that the Respondents have a constitutional right to discontinue water and sewer service to the Petitioners.[2] The order states:

Property rights are one the most basic rights protected by both the Florida and United States Constitutions. These rights include the ability to use, and not to use, the property as the owner of the property sees fit. The government may impose regulations on how a property is used, and neighboring property owners can seek to enjoin their neighbors from offensive or nuisance use of property. However, the Court is unaware of, and the Plaintiffs have not provided, any authority that the Court can compel a property owner to use its property in a manner solely for the benefit of a neighboring property owner.

         II. Certiorari ...


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