         FIRST DISTRICT COURT OF APPEAL STATE
                OF FLORIDA
                  _____________________________

                          No. 1D18-283
                  _____________________________

WILLIAM E. CAMPBELL and
FLORA D. CAMPBELL,

    Appellants,

    v.

STATE OF FLORIDA, DEPARTMENT
OF TRANSPORTATION,


    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Robert M. Dees, Judge.

                         March 28, 2019
B.L. THOMAS, C.J.

     Appellants appeal the trial court’s final judgment quieting
title of the subject property to the Florida Department of
Transportation under section 95.361, Florida Statutes. We affirm.

                              Facts

    On March 17, 2004, Appellants purchased a 5.72-acre parcel
of property in Duval County abutting the eastern boundary of
State Road 5.     In June 2005, the Florida Department of
Transportation (the Department) approved construction plans for
the River City Marketplace development. Based on a survey done
by the Department, permits were issued for use of a publicly owned
right-of-way on the edge of State Road 5 abutting Appellants’
property. The new development required the developer to widen
State Road 5 and place a drainage swale, gas lines and power lines
on the publicly owned right-of-way on the eastern edge of State
Road 5, abutting the western border of Appellant’s property.
Beginning in 2006 and continuing, routine maintenance was
performed on the State Road 5 right-of-way, including the subject
property; the maintenance involved mowing, litter pick-up, edging,
mechanical sweeping, shoulder repair, tree trimming, ditch
maintenance, curb, and sidewalk edging.

    At his deposition, Appellant William Campbell testified that
he had been generally aware of the widening of State Road 5 but
was not aware of the specifics of the project. Campbell testified
that, between 2005 and 2014, he visited his property three times.
     In April 2015, Appellants began to develop the property and
build a self-storage facility on it. In connection with this
development, a surveyor marked the four corners of Appellants’
property. As a result, Appellants and the Department discovered
that the right-of-way used in connection with the River City
Marketplace development was insufficient to support the work
that had been permitted; the permits issued in 2005 were based on
an incorrect DOT survey which indicated that the public right-of-
way extended 100 feet from State Road 5, when the right-of-way
actually extended only 80 feet. Thus, the subject property – a 20-
foot-deep strip of land running along the western boundary of
Appellants’ property, a 7281-square-foot-portion – was encroached
by the road widening.
    On May 22, 2015, Appellants met with Department staff at
the office in Jacksonville. At the meeting, a Department
maintenance engineer conceded that the Department had made a
mistake and wanted to resolve it. The engineer informed
Appellants that he had conferred with the Department’s legal
department and could offer Appellants one of two options: the
Department could purchase the affected property from Appellants,
or the Department could move the drainage swale and utilities

                                2
from Appellants’ property and back onto the publicly owned right-
of-way. The Department’s assistant right-of-way manager told
Appellants it was unclear whether a taking had actually occurred,
that the Department had not ordered an appraisal on Appellants’
property, and that the Department had not yet made a decision on
how to proceed.
     Internally, the Department determined that it would cost
$197,000 to relocate the overhead structures on the encroached-
upon property, and $269,000 to relocate underground
infrastructure. The Department did not make an offer to
Appellants, and on July 30, 2015, the Department filed a
maintenance map claiming title to the subject property.
      Appellants sued the Department for inverse condemnation,
arguing that their property had been taken for public use without
compensation. The Department filed a counterclaim to quiet title,
arguing that section 95.361, Florida Statutes, had vested all right,
title, and interest in the subject property to the Department.

     At a bench trial, the maintenance contracts manager for the
Department testified that, from 2006 until the time of trial, the
Department hired contractors to maintain property along State
Road 5, including Appellants’ encroached-upon property. The
manager testified that, under that contract, the Department
issued specific work orders to be performed by the contractor and
testified that routine maintenance on the State Road 5 right-of-
way, including the subject property, involved mowing, litter
pickup, edging, mechanical sweeping, shoulder repair, tree
trimming, ditch maintenance, curb, and sidewalk edging.
     A contracted project manager testified that the contractor
maintained all state roads, including the subject property. The
manager testified that the contractor’s crews patrol the subject
property twice a week and perform maintenance up to the tree line,
including fixing potholes, striping, mowing, litter pick-up, tree
trimming, weed eating, and cleaning ditches. The manager
described the methods that the contractor used to document work
performed under the contract and testified that he had never
personally seen work performed on the subject property. A
Department assistant maintenance engineer testified that the
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Department issued final acceptance of permitted work for the
River City Marketplace development on May 22, 2007, indicating
that all permitted work was complete and acceptable to the
Department.
    Appellant Flora Campbell recorded the May 22, 2015,
conversation between Appellants and Department officials on her
phone. Appellants offered a transcript of the recording as evidence
at trial, arguing that it was probative of the fact that the
Department made a representation and later changed its position.
The trial court excluded the transcript, ruling that the Department
employees had a reasonable expectation that their
communications were private, and that the recording and
transcript were inadmissible under section 934.06, Florida
Statutes.

     The trial court found that the Department had been
maintaining the subject property since May 22, 2007 at the latest,
and that pursuant to section 95.361(1), Florida Statutes, the
property vested in the Department four years later, on May 22,
2011, before Appellants filed suit on August 18, 2015. The trial
court found that the Department’s taking of Appellant’s property
occurred in 2005, when the physical encroachment began. The
trial court further found that Appellants had not shown a claim of
equitable estoppel, because they had not established that their
position had detrimentally changed based on their reliance on the
Department’s initial representation. Based on those findings, the
trial court denied Appellant’s claim of inverse condemnation and
granted the Department’s counterclaim to quiet title, confirming
to the Department fee simple title to the property, as described and
recorded in the Department maintenance map.
                              Analysis
                             I.
  Whether Competent, Substantial Evidence Supports the Trial
                  Court’s Final Judgment

    An appellate court reviews a trial court’s application of section
95.361, Florida Statutes, de novo, and any factual findings
supported under the competent, substantial evidence standard of

                                 4
review must be upheld. Chackal v. Staples, 991 So. 2d 949, 953
(Fla. 4th DCA 2008).

     Section 95.361(1), Florida Statutes, provides that when a road
is constructed by a governmental entity, and the width of that road
is maintained by that entity “continuously and uninterruptedly for
4 years,” the entire maintained width of the road is “dedicated” to
the public, vesting to the public the right, title, easement, and
appurtenances.
     Section 95.361(2), Florida Statutes, provides that when a road
is constructed by a nongovernmental entity, and the width of that
road is regularly maintained by a governmental entity for seven
years, the entire maintained width of the road is “dedicated” to the
public, vesting to the public the right, title, easement, and
appurtenances. “The test is not whether the maintenance is
proper, or frequent, or thorough, or open and obvious. The test is
whether the maintenance was appropriate to the circumstances
and, if so, the statutory test is met.” Division of Admin., State
Dep’t of Transp. v. Ideal Holding Co., 427 So. 2d 392, 393 (Fla. 4th
DCA 1983).

    Appellants argue that there was no competent, substantial
evidence to support the trial court’s finding that the Department
constructed State Road 5 or maintained the subject, encroached-
upon property for either four or seven years. The Department
argues that competent, substantial evidence established that the
Department has maintained the widened portion of State Road 5,
and therefore established dedication, whether the initial widening
was deemed to be constructed by the Department or a contractor.
     Competent, substantial evidence is “‘such evidence as will
establish a substantial basis of fact from which the fact at issue
can be reasonably inferred’ or such evidence as is ‘sufficiently
relevant and material that a reasonable mind would accept it as
adequate to support the conclusion reached.’” Heifetz v. Dep’t of
Bus. Regulation, Div. of Alcohol & Tobacco, 475 So. 2d 1277, 1281
(Fla. 1st DCA 1985) (quoting De Groot v. Sheffield, 95 So. 2d 912,
916 (Fla. 1957)).



                                 5
     The testimony at trial was such that the court could have
“reasonably inferred” that the Department, through its current
contractor, has maintained the subject property since at least May
22, 2007, when a Department engineer accepted the permitted
work as complete on the area which included the subject property.
Therefore, competent, substantial evidence supported the trial
court’s finding that the Department had continuously and
uninterruptedly maintained the subject property from at least
     May 22, 2007 until the time of the suit in August 2015, and
that, under section 95.361(1), Florida Statutes, title vested in the
Department in 2011, after four years of maintenance, and would
have vested after seven years of maintenance if the court had
determined the widening of State Road 5 had been constructed by
a nongovernmental entity. * Therefore, the trial court did not err
in quieting title of the subject property to the Department.

                               II.
        Whether Appellants’ Inverse Condemnation Claim
                       Was Time Barred
     “The general rule of law is that a property owner must bring
an inverse condemnation claim within four years of the physical
invasion of the property caused by governmental action.” Judkins
v. Walton Cty., 128 So. 3d 62, 64 (Fla. 1st DCA 2013). Evidence at
trial established that the physical invasion of Appellants’ property
began in November 2005, when the trees on the western edge of
the property were cut and the area cleared.
    Appellants argue that “[i]t was upon discovery of the
encroachment by FDOT that [Appellants] were denied the
economic use of their property and that the statute of limitations
began to run.” They argue that, because the taking was not readily
identifiable, it did not occur until Appellants actually discovered it
on April 7, 2015, citing Sarasota Welfare Home, Inc. v. City of


    * The trial court found that the widening of State Road 5,
although actually constructed by a contractor, was done by the
Department for the purposes of section 95.361(1), Florida Statutes;
therefore, only four years of continuous maintenance was required
before titled vested in the Department.
                                  6
Sarasota, 666 So. 2d 171, 173 (Fla. 2d DCA 1995). Appellants
argue that Sarasota Welfare Home supports their argument,
because the Second District held that the taking occurred when the
physical invasion was discovered. Appellants misread Sarasota
Welfare Home. In that case, the City of Sarasota in 1970 buried a
sewer pipe that extended onto property owned by Sarasota Welfare
Home; the physical invasion was not discovered until 1988. Id. at
172. The Second District held that the determination of whether
a taking occurs is fact intensive and found that the discovery of the
invasion caused the property owners to be denied the benefit of
their property, therefore, that was when the taking occurred for
the purposes of the inverse condemnation statute of limitations.
Id. at 173.

     Here, however, Appellants were “denied substantially all
economically beneficial or productive use” of a portion of their land,
when the Department encroached upon it by widening State Road
5 beginning in November 2005. Appellants’ window to file an
inverse condemnation action ended in November 2009, four years
after Appellants were deprived the beneficial use of their property.
Appellants filed suit on August 17, 2015; therefore, the trial court
did not err in denying Appellants’ inverse condemnation claim as
time barred.
                             III.
        Whether the Department Was Equitably Estopped
         From Obtaining Title to the Subject Property
    A trial court’s decision to apply the doctrine of equitable
estoppel is reviewed for an abuse of discretion, provided there is
competent, substantial evidence to support each element of the
doctrine. Dep’t of Revenue ex rel Thorman v. Holley, 86 So. 3d 1199,
1203-04 (Fla. 1st DCA 2012).
     “As a general rule, equitable estoppel will be applied against
the state only in rare instances and under exceptional
circumstances.” State, Dep’t of Revenue v. Anderson, 403 So. 2d
397, 400 (Fla. 1981).
   To establish a claim of equitable estoppel: (1) the party against
whom estoppel is sought must have made a representation about

                                  7
a material fact that is contrary to a position it later asserts; (2) the
party seeking estoppel must have relied on that representation;
and (3) that party must have changed his or her position to their
detriment, based on the representation. Lewis v. Dep’t of Health &
Rehab Servs., 659 So. 2d 1255, 1256-57 (Fla. 4th DCA 1995).
     The trial court found that the Department’s initial statements
regarding either the removal of infrastructure or purchase of the
subject property, and its subsequent decision to pursue neither of
those options, constituted a change of position to establish the first
element of equitable estoppel. However, the trial court found that
Appellants did not change their position in reliance on the
Department’s statements, as in either scenario, Appellants could
have filed suit; thus, Appellants could not prove detrimental
reliance. We agree.
     The Department did not lull Appellants “into a
disadvantageous legal position,” Major League Baseball v.
Morsani, 790 So. 2d 1071, 1076 (Fla. 2001); the subject property
vested to the Department before the maintenance engineer made
any misstatement. The trial court therefore did not abuse it
discretion in finding that the State was not estopped from an
ownership claim in the subject property.
                               IV.
         Whether Exclusion of the Secret Recording and
     Transcript of the May 22, 2015 Meeting Was Harmless Error

     “[I]n a civil appeal, the test for harmless error requires the
beneficiary of the error to prove that the error complained of did
not contribute to the verdict.” Special v. West Boca Med. Ctr., 160
So. 3d 1251, 1265 (Fla. 2014).

    Appellants argue that the “meeting transcript clearly shows
that FDOT strongly presented options to [Appellants] during the
meeting . . . .” The transcript was probative to the first prong of
equitable estoppel, i.e., that the State made a representation and
subsequently changed its position. The testimony at trial was
consistent with the transcript, as the Department’s maintenance
engineer testified that he presented Appellants with two options

                                   8
before later proceeding under the “dedication” in section 95.361,
Florida Statutes. Additionally, the trial court found that “the
Department’s statement of its initial position only satisfies the
first element of equitable estoppel,” thus, finding in favor of
Appellants on the element that the transcript was offered to prove.
Therefore, any error in excluding the transcript was harmless, as
it did not affect the judgment.

                           Conclusion
    Based on the foregoing, the trial court did not err in denying
Appellant’s inverse condemnation claim and quieting title in the
subject property to the Department. We therefore affirm the
court’s final judgment.

    AFFIRMED.

WETHERELL and WINSOR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andrew Prince Brigham and E. Scott Copeland of Brigham
Property Rights Law Firm PLLC, Jacksonville, for Appellants.

Wayne W. Lambert, General Counsel, Marc A. Peoples, Assistant
General Counsel, Department of Transportation, Tallahassee, for
Appellee.




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