IN THE SUPREME COURT OF FLORIDA. CASE NO. SC Lower Tribunal Case No. 1D JAMES D. LEE, SR., Petitioner, vs.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC Lower Tribunal Case No. 1D JAMES D. LEE, SR., Petitioner, vs. BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND OF THE STATE OF FLORIDA, Respondent. ON PETITION FOR REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT PETITIONER'S BRIEF ON JURISDICTION Tiffani G. Lee Fla. Bar No Brickell Avenue Suite 3000 Miami, Florida Tel.: (305) Fax: (305) Counsel for Petitioner

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES...iii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE APPENDIX ii

3 TABLE OF AUTHORITIES CASES Page Booker v. Saunders Realty Co., 53 So. 2d 912 (Fla. 1951)... 8 Durchslag v. McLean, 158 So. 811 (Fla. 1935)... 4, 6 Edwards v. Hardin Prop., Inc., 313 So. 2d 82 (Fla. 2d DCA 1975)...5, 6, 13 Fern v. Fern, 207 So. 2d 291 (Fla. 3 rd DCA 1968)... 9 Lubrano v. MaCauley, 125 So. 2d 911 (Fla. 2 d DCA 1961)... 8 Marrone v. Miami Nat'l Bank, 507 So. 2d 652 (Fla. 3 rd DCA 1987)... 9 Raheb v. DiBattisto, 483 So. 2d 475 (Fla. 3 rd DCA 1986)... 8 Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)...3, 7, 8 Skipper v. Reese, 79 So. 636 (Fla. 1918)... 4, 6 LAWS OF FLORIDA Title I, Chapter XXVI, Article 2, Section 4656, The Compiled General Laws of Florida... 4 RULES Rule 9.120(d), Florida Rules of Appellate Procedure... 2 Rule 9.210, Florida Rules of Appellate Procedure iii

4 STATEMENT OF THE CASE AND FACTS This case involves a dispute over 80 acres of land legally described as the North ½ of the Northeast ¼ of Section 1, Township 5 North, Range 24 West in Okaloosa County, Florida (the "Property"). Respondent claimed title by conveyances beginning in 1937, but never occupied the Property. Respondent sought to quiet title to the Property and asserted claims for trespass and ejectment. Petitioner claimed title by adverse possession without color of title based upon his predecessor's (the "Lee Family") possession and occupation of the Property from at least After a two-day, non-jury trial, the trial court found that Petitioner presented clear and positive proof that the Lee Family established a family farm or homestead on the Property in the early 1900s (at least from 1905). At least three generations of the Lee Family were born in a house built on the Property, and two died there. Petitioner's father was born on the Property in 1905 and lived on the Property until his death in During that time, the Lee Family substantially enclosed the Property by erecting fences. They improved the Property by building structures, including a house, and cultivated the Property by planting crops and raising farm animals. In the past 100 years, the Property has never been in the possession or control of anyone outside the Lee Family. 1

5 The trial judge received live testimony of several witnesses; deposition testimony of three witnesses (ages 81, 87 and 101) who lived in the community in the early 1900s and were familiar with the Lee Family's possession and control of the Property (including two who visited the Property several times between 1926 and 1962); and certain documentary evidence. Based upon the evidence and the reasonable inferences therefrom, the trial court found that Petitioner presented clear and positive proof that the Lee Family's possession and occupation of the Property ripened into title by adverse possession sometime substantially before Accordingly, the trial judge quieted title in Petitioner. On appeal, the First District held that Petitioner was required to establish by clear and positive proof that, "prior to 1937, his predecessors: (a) actually and continually occupied the 80 acres at issue; (b) for seven years; by (c) protecting the 80 acres by substantial enclosure, or usually cultivated or improved the 80 acres" (A2). (citations omitted)(emphasis added). 1 The court weighed the evidence presented by the three disinterested witnesses with personal knowledge of the use of the Property prior to Although the witnesses testified that the Lee Family fenced the Property, built a house on the Property, and grew fields and crops on the Property from at least 1926 forward, the Court rejected their testimony because one 1 As required by Rule 9.120(d), Florida Rules of Appellate Procedure, the First District's decision is provided in the Appendix to this brief. Where appropriate, citations to the decision will be in the form of "A" for Appendix followed by the page number of the decision. For example, "A1" means the first page of the decision. 2

6 could not precisely mark the location of the Lee Family house on an unauthenticated (and arguably inadmissible) community map, and because they could not recall the exact number of acres the Lee Family cultivated (A3). The First District reversed and remanded for the trial judge to quiet title in the Respondent and reinstate the trespass and ejectment claims (A4). SUMMARY OF ARGUMENT The First District's articulation and application of the legal standard for proving adverse possession without color of title expressly and directly conflicts with cases from the Supreme Court of Florida and the Second District. First, while those courts do not interpret the statute to require usual cultivation or improvement of the entire disputed parcel, the First District did (A2). Second, the Second District has held that testimony of two disinterested witnesses is sufficient to meet the clear and positive proof requirement, while the First District found the testimony of three disinterested witnesses insufficient (A3). Finally, whereas the Second District held it was sufficient to focus on a more general description of the disputed property than the exact legal description, the First District rejected that approach. This conflict vests this Court with jurisdiction. Further, the First District's application of the competent substantial evidence standard of review directly conflicts with the standard articulated by this Court in 3

7 Shaw v. Shaw. 2 The decision below reflects that the First District weighed the evidence and substituted its judgment for that of the trial judge, a practice this Court prohibited in Shaw. When a decision reflects that the appellate court misapplied a controlling legal principle, this Court should exercise its discretionary jurisdiction to correct that misapplication of the law. ARGUMENT I. FIRST DISTRICT'S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT AND SECOND DISTRICT AS TO THE STANDARD FOR PROVING ADVERSE POSSESSION WITHOUT COLOR OF TITLE Under applicable statutory law, to establish title by adverse possession without color of title, Petitioner was required to present clear and positive proof that his predecessors possessed and occupied the Property for seven continuous years under a claim of title exclusive of any other right, and that the Property was protected by substantial enclosure or had been usually cultivated or improved. See The Compiled General Laws of Florida, Title I, Ch. XXVI, Art. 2, The statute defines occupation and possession of land to mean where it has been "protected by substantial enclosure" or "usually cultivated or improved." Id. Courts interpreting the statute have not previously held the standard to require proof that the entire disputed parcel was enclosed or that the entire disputed parcel was cultivated. See, e.g., Durchslag v. McLean, 158 So. 811 (Fla. 1935) So. 2d 13 (Fla. 1976). 4

8 (finding that evidence was sufficient to prove usual cultivation or improvement where a part of the claimed lands was cultivated in flowers and it was kept cleared); Skipper v. Reese, 79 So. 636 (Fla. 1918) (finding evidence sufficient to show adverse possession where party exercised ownership over parcel by, inter alia, improving portions and leasing portions, but did not occupy the entire tract). The Second District in Edwards v. Hardin Prop., Inc., 313 So. 2d 82, 84 (Fla. 2d DCA 1975), determined and applied the legal standard for proving adverse possession without color of title. In Edwards, an action was brought to quiet title to 133 acres of land. The defendant answered and claimed title by adverse possession to approximately 10 acres, which had been continuously occupied and cultivated as a small, family-type farm since The trial court quieted title to the plaintiff as to the entire 133-acre tract despite defendant's evidence that 10 acres were used as a small, family-type farm. The Second District reversed and remanded for, inter alia, entry of judgment establishing title by adverse possession to the claimed lands. The Second District held that a defendant can establish adverse possession as to a smaller portion of the disputed parcel. With regard to whether the defendant presented clear and positive proof of his adverse possession, the Second District found that the testimony of two disinterested septuagenarians who lived in the relevant community and were familiar with the disputed parcel should have 5

9 been affirmatively credited by the trial court when considering the defendant's adverse possession claim. Id. at 82. The Second District rejected the plaintiff's argument that the property had not been adequately described and held that the two witnesses' testimony, taken as a whole, was sufficiently definite even though they testified generally regarding the location of the property, and even if their description of the location was not as clear/complete as a legal description. Id. at 84. Finally, because the property location was known throughout discovery and trial, the Second District found it was proper for the trial court to focus on the "appellant's homeplace" or the "place on Yontz Road" rather than its precise boundary or description. Id. at The First District's decision below conflicts with the above-cited cases. In direct conflict with the Supreme Court's decisions in Durchslag and Skipper, the First District interpreted the applicable statute to require proof that the entire 80- acre parcel was usually cultivated or improved (A2). Further, in direct conflict with the Second District's decision in Edwards, the First District found that the testimony of three disinterested witnesses (ages 81, 87 and 101) who lived in the community during the relevant time and who were familiar with the Property was not clear and positive proof of the Lee Family's adverse possession of the Property (A3). The First District's decision below also conflicts with the Second District's decision in Edwards regarding the level of specificity required in lay witnesses' 6

10 testimony with respect to the boundaries of the disputed property. In this case, the First District held Petitioner's three witnesses to the arguably impossible standard of recalling the exact acreage of the fields cultivated by the Lee Family on the Property (A3). It also found their otherwise credible and uncontradicted testimony insufficient because one witness (an 87-year-old-man) could not precisely mark an unauthenticated community map with the exact location of the Lee Family house (A3). An unauthenticated map, however, is inadmissible for testimonial use. See Rhoads v. Virginia-Florida Corp., 476 F.2d 82 (5 th Cir. 1973)(applying federal and Florida law). The First District wholly ignored these three witnesses' direct testimony regarding visits to the Lee Family on the Property in the 1920s through the 1960s, their accurate descriptions of the Property and the structures thereon, including a house built on the Property before 1926, and their accurate descriptions of the location of the Property and the Lee Family house in relation to existing roads and landmarks (A3). Such testimony would be sufficient under the standard applied by the Second District in Edwards. This Court should intervene to clarify the legal standard for acquiring title by adverse possession without color of title. II. FIRST DISTRICT MISAPPLIED THE COMPETENT SUBSTANTIAL EVIDENCE STANDARD OF REVIEW In addition, this Court should exercise its discretionary jurisdiction to review the First District's decision because the appellate court misapplied the competent 7

11 substantial evidence standard of review articulated by this Court in Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976). Under the competent substantial evidence standard of review, the trial court judgment must be affirmed if the record on appeal discloses any competent substantial evidence to support it. Id. In applying that standard of review, appellate courts are prohibited from substituting their judgment for that of the trial court through reevaluation of testimony or weighing of evidence; rather, appellate courts are to search the record for any evidence supporting the trial court's findings. See Id. at 16. Courts applying the competent substantial evidence standard have consistently held that if the evidence and the reasonably inferences therefrom support the trial court's judgment, it will not be disturbed on appeal. See, e.g., Booker v. Saunders Realty Co., 53 So. 2d 912 (Fla. 1951) (upon review of the entire record, finding record contained sufficient evidence to support verdict where several witnesses testified to facts that would sustain claim of adverse possession); Raheb v. DiBattisto, 483 So.2d 475, (Fla. 3 rd DCA 1986) (in reviewing evidence presented at non-jury trial, appellate court declined to substitute its judgment for trial court by weighing and re-evaluating the testimony and evidence); Lubrano v. MaCauley, 125 So. 2d 911 (Fla. 2 nd DCA 1961) (in ejectment action, finding testimony and exhibits sufficient to show that defendants held title to portions of thirty-foot strip of land by adverse possession). 8

12 Even where the record includes some incompetent evidence, the trial court's finding will not be disturbed where there is otherwise competent evidence in the record. See, e.g., Fern v. Fern, 207 So. 2d 291 (Fla. 3 rd DCA 1968). Similarly, if there are conflicts in the evidence, it is the trial court's duty to reconcile them. See, e.g., Marrone v. Miami Nat'l Bank, 507 So. 2d 652, 653 (Fla. 3 rd DCA 1987) (in non-jury trial, where both parties presented evidence to support their positions, it was trial court's duty to reconcile conflicts in testimony, judge the credibility of witnesses and determine the weight of evidence presented) (citations omitted). The First District cited the competent substantial evidence standard (A2). On its face, however, the decision reflects that the appellate court misapplied the standard and ostensibly engaged in an impermissible de novo review (A3). Rather than search the record for any evidence to support the trial court's detailed findings, the appellate court impermissibly proceeded to weigh some of the evidence markings on an unauthenticated map and re-evaluate the three witnesses' testimony, substituting its judgment for that of the trial court (A3). The First District's decision injects confusion regarding the proper application of the competent substantial evidence standard of review and undermines the role of the trier of fact. If applied, the First District's standard would hold lay witnesses to an impossible standard. This Court should exercise its 9

13 discretionary jurisdiction to clarify the competent substantial evidence standard and reaffirm the proper role of an appellate court in applying it. CONCLUSION For the reasons stated and under the authorities cited, this Court should exercise its discretionary jurisdiction to review the First District's decision. Respectfully submitted, TIFFANI G. LEE Counsel for Petitioner 701 Brickell Avenue, Suite 3000 Miami, Florida Tel: (305) / Fax: (305) By: s/ Tiffani G. Lee Tiffani G. Lee Florida Bar No CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 5th, 2006, a copy of the foregoing Petitioner's Brief on Jurisdiction was served via U.S. mail to: Reagan Roane, Esq., Regina M. Fegan, Esq., and Kelly Samek, Esq., Florida Dept. of Environmental Protection, 3900 Commonwealth Blvd., MS 35, Tallahassee, Florida s/ Tiffani G. Lee Tiffani G. Lee CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Petitioner's Brief on Jurisdiction complies with the font requirements set forth in Rule of the Florida Rules of Appellate Procedure, as it has been prepared in Times New Roman 14-point font. # _v1 s/ Tiffani G. Lee Tiffani G. Lee 10

14 APPENDIX 11