        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

    WAYNE GOLDMAN, MARIANNE GOLDMAN and SEAN ACOSTA,
                       Appellants,

                                       v.

                             STEPHEN LUSTIG,
                                 Appellee.

                                No. 4D16-1933

                             [January 24, 2018]

                           CORRECTED OPINION

   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.

1 Appellants have since sold their units. The new unit owners are pursuing this
action on their behalf. See Fla. R. Civ. P. 1.260(c); Levine v. Gonzalez, 901 So.
2d 969, 972-73 (Fla. 4th DCA 2005) (discussing the Rule which allows for an
action to be continued in the name of the original plaintiff after a transfer of
interest without requiring substitution).
                                 Background

    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”)

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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 prevailed.” Both parties appeal that final judgment.

                                  Analysis

A. Dockage Rights

   We generally review an order dismissing a declaratory action for an
abuse of discretion. Acad. Express, LLC v. Broward Cty., 53 So. 3d 1188,
1190 (Fla. 4th DCA 2011). “However, to the extent that the dismissal is
based upon a legal determination, our review is de novo.” Bloch v. Del Rey,
208 So. 3d 189, 192 (Fla. 3d DCA 2016).

   The parties agree that the trial court erred by failing to determine the
parties’ rights to the dock, and that this Court can adjudicate the matter
on appeal.       The Unit Owners maintain that Lustig clearly and
unambiguously severed his riparian rights and agreed not to impede or
interfere with the riparian rights of the Unit Owners when he executed the
Assignment, as the Assignment contemplated that Lustig could only use a
forty-four-foot strip of that dock, and that the Unit Owners had a right to
use the remaining portion. Lustig argues that only he has any rights to
the dock and the Assignment was invalid as a matter of law because the
Association could not assign any rights. Moreover, Lustig contends that
the DEP already decided the instant matter on appeal when it denied Blue
Paper, Inc.’s original application for a permit to construct a marginal dock
due to there being insufficient evidence of upland interest.

    We find that Unit Owners are entitled to use a portion of the dock. As
an initial matter, and as both parties assert, the trial court’s final judgment
is inadequate. The trial court, pursuant to Florida’s Declaratory Judgment

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Act, should have provided both parties with a declaration of their rights to
the dock as they had requested. See § 86.011, Fla. Stat. (2017); see also
Sears, Roebuck & Co. v. Forbes/Cohen Fla. Props., L.P., 223 So. 3d 292,
298 (Fla. 4th DCA 2017) (“[C]onclusory final judgments on declaratory
judgment claims, which are devoid of factual findings or conclusions of
law, are inadequate.”).

   Still, we can adjudicate the instant dispute given that it is entirely legal
in nature. See Sears, 223 So. 3d at 298. Here, Unit Owners have a right
to use a certain portion of the dock given that they and Lustig executed
the Assignment. See Haynes v. Carbonell, 532 So. 2d 746, 748 (Fla. 3d
DCA 1988) (“[R]iparian interests may be severed only by an ‘express
bilateral agreement to do so.’” (quoting Belvedere Dev. Corp. v. Dep’t of
Transp., 476 So. 2d 649, 653 (Fla. 1985))). First, the title of the
Assignment is telling: “Nonrecourse Quitclaim Assignment of Dockage
Rights.” Next, in the text of the Assignment itself, Lustig agreed to the fact
that the dock was “constructed for the benefit of the owners of townhouses
at the Association for the dockage of vessels adjacent thereto,” and then
agreed that he was acquiring “the right to the use of a portion of the Dock
described as the Forty Four (44) feet of dock located at the outside
northwest corner of the Dock.” 2 He also “agree[d] not to impede or interfere
with any other party’s rights at the dock.” Three pages later, he signed the
plat map which designated the portion of the dock that he could only use.
In light of the title of the Assignment, as well as its specific provisions,
Lustig unequivocally severed his riparian rights.

    Lustig makes several arguments on appeal for why the Assignment was
invalid. Regardless of their merit, we find them all waived since he
conceded at trial that Unit Owners had a right to use a portion of the dock.
He stated during cross-examination that “I’m contending that I own the
vertical piece, and the horizontal piece to a certain point.” Then, he agreed
that Unit Owners “have the rest of the dock,” but that “they just can’t get
to it.” He further explained he would have no problem with Unit Owners
using a portion of the dock, as long as they built their own access pier to
it. His main concern was evident: he no longer wanted to see his neighbors
accessing the dock by encroaching on his land and pier.



2 Although these two stipulations were included as “whereas clauses,” which are
usually prefatory and non-binding in nature, see Orlando Lake Forest Joint
Venture v. Lake Forest Master Cmty., 105 So. 3d 646, 648 (Fla. 5th DCA 2013),
these stipulations expressly became binding through paragraph one of the
Assignment, which stated: “The recitals set forth above are true and correct and
are incorporated herein by reference.”

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B. Easement by Necessity

   Lustig’s main concern brings us to our next issue on appeal: whether
Unit Owners, who have a right to use the dock, have the right to access
that dock by way of an easement by necessity. We review this legal
question de novo, see St. Vincent’s Med. Ctr., Inc. v. Memorial Healthcare
Grp., Inc., 967 So. 2d 794, 799 (Fla. 2007), and find that they do not have
the right to access Lustig’s pier by way of such an easement.

   A party who seeks “to establish a way of necessity, whether in regard
to an implied grant or statutory way, has the burden of proof to establish
that he or she has no practicable route of ingress or egress.” Moran v.
Brawner, 519 So. 2d 1131, 1133 (Fla. 5th DCA 1988). Section 704.01(1),
Florida Statutes (2017), codifies the requirements for obtaining an implied
easement by necessity:

      Such an implied grant exists where a person has heretofore
      granted or hereafter grants lands to which there is no
      accessible right-of-way except over her or his land, or has
      heretofore retained or hereafter retains land which is
      inaccessible except over the land which the person conveys.
      In such instances a right-of-way is presumed to have been
      granted or reserved. Such an implied grant or easement in
      lands or estates exists where there is no other reasonable and
      practicable way of egress, or ingress and same is reasonably
      necessary for the beneficial use or enjoyment of the part
      granted or reserved.

§ 704.01(1), Fla. Stat. (2017). In the instant case, there is no dispute that
the only way for Unit Owners to currently access the dock by land is by
first crossing into Lustig’s backyard and then walking on his pier.

   However, just because Unit Owners cannot currently access the dock
by land does not mean that they have a need for an easement. As stated
by the Florida Supreme Court in Tortoise Island Communities, Inc. v.
Moorings Association, Inc., 489 So. 2d 22 (Fla. 1986), an easement by
necessity requires a showing of an “absolute necessity.” Id. at 22
(emphasis added). Given that Unit Owners live on waterfront property,
they can find an alternate means of accessing the dock, such as by
constructing their own access pier, which would be a “reasonable and
practicable way of egress, or ingress.” § 704.01(1), Fla. Stat.

  Our decision is guided in part by Hunter v. Marquardt, Inc., 549 So. 2d
1095 (Fla. 1st DCA 1989). There, the First District Court of Appeal

                                     5
overturned the granting of an easement by necessity because the appellee
could access certain wet storage slips, located beyond appellant’s dock,
“by water through the navigable Mexico Canal or by an extension of the
dock from [the appellee’s] original marina.” Id. at 1097. The court held
that “the navigable waterway provides practicable access to the property
for that purpose.” Id. Here, the Intracoastal Waterway behind the parties’
units also provides practicable access to the dock. Although we are
sympathetic of the inconvenience and cost to Unit Owners of now having
to build their own access pier, these factors do not outright determine
whether an easement is absolutely necessary. See Roy v. Euro-Holland
Vastgoed, B.V., 404 So. 2d 410, 413 (Fla. 4th DCA 1981) (“The fact that
one means of access may be more convenient than another does not suffice
[for purposes of obtaining an easement by necessity].”).

                               Conclusion

   We reverse and remand for the trial court to amend its final judgment
and find that Unit Owners are entitled to use a portion of the dock, but
are not entitled to an easement by necessity in order to access it. Lustig
expressly severed some of his riparian rights to the dock in the
Assignment, and conceded as much at trial. However, Unit Owners do not
merit an easement by necessity because they have failed to demonstrate
an absolute need for such an easement.

   Reversed and remanded.

TAYLOR and KLINGENSMITH, JJ., concur.


                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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