IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA Third District Court of Appeal Case No. 3D09-1314 Lower Court Case No. 08-39632 CA 04 (11 th Judicial Circuit) VENEZIA LAKES HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, Petitioner/Appellant, -vs.- CSX TRANSPORTATION, INC., a Virginia corporation, Respondent/Appellee. / JURISDICTIONAL BRIEF FOR PETITIONER/APPELLANT VENEZIA LAKES HOMEOWNERS ASSOCIATION, INC. ON APPEAL FROM A FINAL ORDER OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA William J. Motyczka, Esq. -and- G. David O Leary, Esq. Florida Bar No. 444693 Florida Bar No. 193898 13410 Southwest 128 th Street 493 Northwest 41 st Street Miami, Florida 33189 Miami, Florida 33127 October 18, 2010

TABLE OF CONTENTS ITEM PAGE TABLE OF AUTHORITIES...ii REFERENCES TO APPENDIX/RECORD ON APPEAL i STATEMENT OF THE FACTS AND CASE 1-6 SUMMARY OF THE ARGUMENT.6-7 ARGUMENT...7-10 CONCLUSION...10 CERTIFICATE OF SERVICE... iii-iv CERTIFICATE OF COMPLIANCE iv REFERENCES TO THE APPENDIX AND TO THE RECORD ON APPEAL References to the Appendix hereto are designated by (App. Ex. ). References to record on appeal before the Third District Court of Appeal are designated R.. References to an Appendix to an appellate brief are designated R/App.. References to proposed exhibits are designated P/App. Ex.. -i- TABLE OF AUTHORITIES

CASES PAGE Olive v. Maas, 811 So.2d 644 (Fla. 2002)..6-10 Travelers Ins. Co. v. Emery, 279 So.2d 798 (Fla. 1st DCA 1991) 10 X Corp. v. Y Person, 622 So.2d 1098 (Fla. 2d DCA 1993)..10 STATUTES Florida Statutes Chapter 86 (2008)...4 RULES Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv)..7, 10 Florida Rule of Appellate Procedure 9.200(b)(4) 5 -ii- STATEMENT OF THE FACTS AND CASE

Petitioner/Appellant, VENEZIA LAKES HOMEOWNERS ASSOCIATION, INC. (hereinafter VENEZIA ) is a Florida not-for-profit corporation, acting as a homeowners association for a community consisting of four hundred seventy-six (476) homes in Miami-Dade County, Florida. Respondent/Appellee, CSX TRANSPORTATION, INC. (hereinafter CSX ), is a Virginia corporation owning and operating a railroad. THREE LAKES PROPERTY OWNERS ASSOCIATION, INC. (hereinafter THREE LAKES ) is a Florida not-for-profit corporation, acting as homeowners association for a community of three hundred fiftyfive (355) homes adjacent to VENEZIA, on the same overall parcel of land originally developed by LENNOR HOMES, INC. (hereinafter LENNOR ). LAKES CLUBHOUSE, INCORPORATED (hereinafter LAKES CLUBSHOUSE ) is a not-for-profit Florida corporation, which owns the recreational facilities shared by the VENEZIA and THREE LAKES communities, located on a portion of the parcel between them. VENEZIA and THREE LAKES own all the shares of stock of LAKES CLUBHOUSE, and provide for the ongoing operation and maintenance thereof. The LAKES CLUBHOUSE facilities are situated on a triangular shaped parcel of land surrounded on all three sides by various spurs of the CSX

railroad. LENNAR was the initial real estate developer for all VENEZIA and THREE LAKES residences. The initial development plan called for all the residences in the parcel developed to be within the THREE LAKES community. On or about September 12, 1996, THREE LAKES and CSX entered into a Private Road Grade Crossing Agreement (hereinafter the Crossing Agreement ). (R. 18-29). Said Crossing Agreement provides, inter alia, for ingress and egress to the LAKES CLUBHOUSE facilities by all residents of the THREE LAKES community, along with their families, employees, agents, servants, patrons, guests and/or invitees, thus manifesting an intention to permit such access to all persons living throughout the overall parcel developed. By so providing for all residents as they became situated on the parcel, the more recent residents from the VENEZIA community obtained said rights. Subsequent to said date, LENNAR ceased efforts to develop residences upon the overall parcel, and proceeded to sell the remaining substantially undeveloped portions of the parcel to other developers, including the majority of the entire north half thereof to CARIBE BUILDERS, LLC

(hereinafter CARIBE ) and to CARIBE s related entities, which company then fully developed the VENEZIA community. In the course of the transfer of the north half of the overall parcel, no modification or clarification was made to the Crossing Agreement. The Crossing Agreement requires an annual payment from THREE LAKES to CSX for use and maintenance and in connection with the railway crossing and related automatic warning devices and signals. (R. 21-26). On or about June, 16, 2000, VENEZIA and THREE LAKES entered into an agreement for VENEZIA s right to use the crossing, with a pro-rata contribution towards said annual payment. (R. 29). CSX is not a direct party to said agreement. A dispute ensued during 2007, with VENEZIA contending that it failed to receive consideration for its contribution. By virtue of the landlocked nature of the recreational facilities, VENEZIA contended that there are easements in its favor; and that owing to the scheme of development, VENEZIA should jointly own (with THREE LAKES) the real property upon which CSX claims a right of way. VENEZIA s Complaint, filed on July 10, 2008, alleged a Count for injunctive relief against THREE LAKES and a Count for declaratory relief

(the subject of this appeal) as to CSX. (R. 3-38). On August 1, 2008, CSX filed its Motion To Dismiss as to Count II, alleging that VENEZIA lacks standing to bring suit for declaratory relief since it is not a named party to the Crossing Agreement or the Easement, and contending that VENEZIA has no rights under either document. 1 (R. 39-42). CSX also contended that VENEZIA is incapable of making the requisite threshold showing that it is in doubt as to its rights under the Crossing Agreement or the Easement, by virtue of the fact that it is not a party. CSX further stated that the relief sought by VENEZIA is beyond the scope of that available under Florida Statutes Section 86.011, claiming that VENEZIA was essentially asking the trial court to impose a contract 1 THREE LAKES filed a Motion to Dismiss Count I of VENZIA s Complaint, and a Motion For Summary Judgment, which remain pending. The trial court had ordered discovery pertaining to THREE LAKES stayed until disposition of the instant appeal. (App. to Initial Brief on Appeal). between CSX and VENEZIA where none existed; and to clarify, modify or reform agreements to which VENEZIA is allegedly not a party. VENEZIA contended that it is actually or constructively a party to the

Crossing Agreement; and alternatively, that it is as an intended third party beneficiary. More significantly, VENEZIA contended that privity of contract is not a requirement for standing under the Declaratory Judgments Act. On April 6, 2009 CSX s Motion To Dismiss was granted, with prejudice, after an unreported hearing thereon. 2 (R. 56). VENEZIA s ore tenus Motion for Leave to Amend its Complaint was likewise denied. Said granting of CSX s Motion To Dismiss, with prejudice, and denial of VENEZIA s ore tenus Motion for Leave to Amend, were the basis for VENEZIA s appeal to the Third District Court of Appeal. 2 Trial counsel for both VENEZIA and CSX submitted Statements Regarding Unreported Hearing(s) under the provisions of Fla.R.App.P. 9.200(b)(4), which were conflicting in major part; and VENEZIA moved for the trial court s settlement and approval of same. After a hearing thereon on October 9, 2009, the trial judge stated that he lacked sufficient recollection to settle and approve either statement regarding the unreported hearing. After hearing oral argument on July 6, 2010, the Third District Court of Appeal, on August 4, 2010, affirmed the trial court s dismissal, with prejudice, of Count II of the Complaint, as well as denial of VENEZIA s ore tenus Motion for Leave to Amend same. The Appellate Court found that VENEZIA was neither a party nor a third party beneficiary to the Crossing Agreement, and hence could not seek relief under the Declaratory

Judgments Act. (App., Comp. Ex. A ). On August 18, 2010, VENEZIA filed its Motion For Rehearing (P/App. Ex. A ); and on September 3, 2010, CSX filed its response thereto. (P/App. Ex. B ) On September 13, 2010, VENEZIA filed its Notice Of Supplemental Authority, citing to Olive v. Maas, 811 So.2d 644 (Fla. 2002), for the proposition that privity of contract is not necessary for standing under the Declaratory Judgments Act. (Notice Of Intent To Invoke Discretionary Jurisdiction, Ex. C ; P/App. Ex. C ) VENEZIA s Motion For Rehearing was denied on September 23, 2010. (App., Comp. Ex. A ). SUMMARY OF THE ARGUMENT Discretionary jurisdiction of this Honorable Court is principally predicated upon the direct conflict with this Court s decision in Olive v. Maas, 811 So.2d 644 (Fla. 2002), wherein the Court definitively stated that privity of contract is not necessary for a determination under the Declaratory Judgments Act, Florida Statutes Chapter 86. The Third District Court of Appeal had effectively foreclosed Petitioner s determination of its rights under subject agreement(s) by means of the Declaratory Judgments Act,

solely because the Court found that Petitioner was neither a party to the contract in question, nor an intended third party beneficiary thereunder. It is respectfully submitted that this Court s consideration regarding whether a conflict exists as to such findings, on the issue of whether Petitioner was a party or intended third party beneficiary, is secondary and therefore not necessary to a determination of discretionary jurisdiction. ARGUMENT The discretionary jurisdiction of this Honorable Court is invoked in this cause under the provisions of Fla.R.App.P. 9.030(a)(2)(A)(iv), predicated upon the decision of the Third District Court of Appeal rendered on September 23, 2010, which expressly and directly conflicts with that of this Court, and with other Florida District Courts of Appeal. (App., Comp. Ex. A ). The decision by the Third District Court of Appeal is premised upon the false tenet that the Petitioner must have been a party to the Crossing Agreement in order to have standing to bring an action under the Declaratory Judgments Act against CSX. The District Court s decisional process underlying its determination of the necessity for privity is evident in its opinion.

The District Court was made aware of Petitioner s reliance upon this Court s decision in Olive v. Maas, 811 So.2d 644 (Fla. 2002) in Petitioner s Notice of Supplemental Authority filed thirty (30 days) before the District Court s affirmance of the trial court s granting of CSX s Motion To Dismiss. (P/App., Ex. C ). 3 Additional findings set out in the District Court s decision, such as its determination that Petitioner failed to qualified as an intended third party beneficiary under the facts and circumstances, while in conflict with decisions of other Florida district courts, need not be addressed herein, 3 The trial court s decision was likewise predicated solely upon grounds that Petitioner s was not a party to the agreement, and hence had no standing under the Declaratory Judgments Act. (R. 56). owing to the underlying apparent conflict with this Court s clear finding in Olive that privity of contract is not necessary. Significantly, by the language of its opinion, it is clear that the District Court s decision was not premised upon a conclusion that Petitioner s request for a declaratory judgment was too hypothetical or remote, or that the controversy had not matured. There is no characterization of Petitioner s assertions as speculative, or of the events being remote or contingent. Nor is

there an indication that the District Court considered Petitioner s pleading a mere request for an advisory opinion. Accordingly, no such factors as discussed in Olive, which might serve to redeem the District Court s decision, exist in this case. Id., at 648-650. Clearly, the determination was made by the District Court that its finding that Petitioner did not enter into the Crossing Agreement, and was not an intended third party beneficiary, had absolutely foreclosed Petitioner s right to a declaratory judgment under Florida Statutes Chapter 86. This Court had dedicated a significant part of its opinion in Olive to a clarification of the purposes of a declaratory judgment, and an espousal that its provisions must be construed liberally. The Court concluded that Olive should not be foreclosed from such a sphere of anticipatory and preventive justice merely because he was not a party to the contract in question. Id., at 648. Accordingly, although the District Court s decision indeed conflicts with those other Florida District Court decisions cited in the instructive Analysis section of this Court s opinion in Olive, 4 analysis of such conflict is secondary, and not necessary to a determination of this Court s discretionary jurisdiction sought under Fla.R.App.P. 9.030(a)(2)(A)(iv).

CONCLUSION For all the aforegoing reasons and in reliance upon said authority, this Honorable Court is respectfully requested to exercise its discretion in taking jurisdiction over this matter for review. 4 X Corp. v. Y Person, 622 So.2d 1098 (Fla. 2d DCA 1993) [broad discretion within the Declaratory Judgments Act s sphere of anticipatory and preventive justice] Id., at 648; and Travelers Ins. Co. v. Emery, 279 So.2d 798 (Fla. 1st DCA 1991) [District Court remanded for Chapter 86 determination of insurance coverage for person claiming to be a third party beneficiary] Id., at 650. Respectfully submitted, LAW OFFICES OF -and- G. DAVID O LEARY, P.A. WILLIAM J. MOTYCZKA 493 Northwest 41 st Street 13410 Southwest 128 th Street Miami, Florida 33127 Miami, Florida 33186 Tel: (305) 389-6479 Tel: (305) 251-4488 Fax: (305) 571-1903 Fax: (305) 251-8682 By: By: G. David O Leary, Esq. William J. Motyczka, Esq. Florida Bar No. 0193898 Florida Bar No. 444693

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by mail to counsel for Respondent/Appellee: Tiffany G. Lee, Esq. of Holland & Knight LLP, 701 Brickell Avenue, Suite 3000, Miami, Florida 33131; and counsel for THREE LAKES: Carla A. Jones, Esq., of Watson Jones & Brown, 1999 Southwest 27 th Avenue, lst Floor, Miami, Florida 33145; and Ron M. Campbell, Esq., of Cole, Scott & Kissane, P.A., -iii- 1645 Palm Beach Lakes Boulevard, 2 nd Floor, West Palm Beach, Florida 33401 this 18 th day of October, 2010. By: G. David O Leary, Esq. CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this Jurisdictional Brief complies with the font and other requirements of Fla.R.App.P. 9.210(a)(2). By: G. David O Leary, Esq. -iv-