_/ JURISDICTIONAL BRIEF OF RESPONDENT, JOHN A. BALOG IN THE SUPREME COURT OF FLORIDA. Case No.: SC LT: 2D

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1 Electronically Filed 10/18/ :24:39 AM ET RECEIVED, 10/18/ :28:37, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA Case No.: SC LT: 2D STEPHEN T. SINATRA and JANICE SINATRA, v. Petitioners, 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: Primary Secondary Marisa J. Powers, Esquire FBN: Primary

2 Secondary Amanda C. Smith, Esquire FBN: Pending Primary Secondary BLALOCK WALTERS, P.A th Street West Bradenton, Florida Telephone: Facsimile: Attorneys for Respondent, John A. Balog 1

3 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 11

4 TABLE OF AUTHORITIES Cases Aravena v. Miami-Dade County, 928 So.2d 1163 (Fla. 2006) Diamond Berk Insurance Agency, Inc. v. Goldstein, Fla., 100 So.2d 420 Dober v. Worrell, 401 So.2d 1322 (Fla. 1981) Jc. v. State, 988 So.2d 1202 (Fla. 2008) Jenkins v. State, 385 So.2d 1356 (Fla. 1980) Sinnamon v. Fowlkes, Fla., 101 So.2d 375 Stein v. Brown Properties, Inc., 104 So.2d 495 (Fla. 1958) , 6 Williams v. Guthrie, 137 So. 682 (Fla. 1931) 4,6 Statutes Section (1), Fla.Stat. 3 Constitutions Art. V, 3(b)(3), Fla. Const

5 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. 1

6 Watch Condominium is referred to a "second phase" ofthe 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

7 based on the interpretation ofthe 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 ofthe 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 ofthe 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

8 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 ofthe 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 ofthe district court's opinion, is not proper here. 4

9 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 ofappeal 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 ofthis Court to review decisions ofthe 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

10 the settlement of issues ofpublic importance and the preservation of uniformity ofprinciple 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 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

11 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 ofthe land - about fifty-four acres - was either "subject to overflow ofthe tides" or "submerged in the Atlantic Ocean." The buyer sought a declaration that the seller had marketable title and for specific performance ofthose 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 ofthe State offlorida 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 offlorida entered into a Lease with the condominium association for the Sterling Condominium. The Lease, by definition, confirms that the landlord (State offlorida) is the owner ofthe underlying Submerged Lands and that tenant (Sterling Condominium) does not claim ownership ofthe Submerged Lands. Thus, the key distinction in our case is that none ofthe parties (Sinatras, Balog, or the Sterling Condominium) are claiming ownership ofthe 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

12 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 ofthe State offlorida. 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 8

13 appears only in the "rehearing section" of the Williams opinion wherein this Court expressly declined to address the issue oftitle. A proper reading ofthe 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 offlorida was not joined in the suit. The Florida Supreme Court found that the dock encroached on the rights ofthe State offlorida (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 ofthe 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 ofthe Florida Statutes (B.l, 6). Even ifthis Court were to conclude that it had jurisdiction over this controversy, the Court should decline to exercise it. Among other things, the fact 9

14 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. 10

15 V. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy ofthe 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 ese '. i blalockwalters.com Ma' J. Powers, Esquire FBN: Primary mpowers@blalockwalters.com Secondary eservice@blalockwalters.com Amanda C. Smith, Esquire FBN: Pending Primary asmith@blalockwalters.com Secondary eservice@blalockwalters.com Blalock Walters, P.A th Street West Bradenton, Florida, Telephone: Facsimile: Attorneys for John A. Balog 11

16 VI. CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that this Answer Brief complies with the font requirements offla.r.app.p (a)(2). l i' \ ' IJ.;' \ ' \ 12