       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 28, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-962
                         Lower Tribunal No. 14-498-P
                            ________________


   Sean P. Colgan, as Trustee Under Agreement of Trust of Sean
                 Colgan Dated January 25, 2008,
                                    Appellant,

                                        vs.

                            Shadow Point, LLC,
                                    Appellee.



      An Appeal from the Circuit Court for Monroe County, Luis M. Garcia,
Judge.

      Annesser & Chaiken, PLLC, and John W. Annesser and Fernando J. Valle,
for appellant.

      Hershoff, Lupino & Yagel, LLP, and Russell A. Yagel and Brittany N.
Miller, for appellee.


Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.

     ROTHENBERG, C.J.
      Sean P. Colgan, as Trustee Under Agreement of Trust of Sean Colgan Dated

January 25, 2008 (“Colgan”), appeals from the trial court’s entry of a final

judgment, which granted Shadow Point, LLC (“Shadow Point”) injunctive and

declaratory relief and granted Colgan injunctive relief regarding the parties’

disputed riparian rights. For the reasons that follow, we reverse the final judgment

insofar as it awarded Shadow Point declaratory and injunctive relief and remand

for the entry of a final judgment in favor of Colgan.

                                 BACKGROUND

      Colgan currently owns waterfront property adjacent to Shadow Point’s

waterfront property alongside the shore of Largo Sound. These two properties were

at one point under common ownership, but that larger parcel of land was

subdivided and transferred over time to different parties. The two properties now

share a boundary line constituting the southern boundary of Colgan’s property and

the northern boundary of Shadow Point’s property. The properties meet to form a

roughly ninety degree angle at the southern and eastern borders of Colgan’s

property and the northern border of Shadow Point’s property. There is a concrete

dock, which is built over a bulkhead, that extends east from the vertex of this

angle. There is also a boathouse on Colgan’s property near where the concrete

dock begins. The parties dispute ownership over the concrete dock and the uplands

underneath it (“the disputed property”).



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      The dispute in this case began when Colgan constructed a boundary fence

extending along its property’s southern border and on top of the concrete dock.

Shadow Point objected to the placement of this fence and filed suit on the grounds

that the fence was constructed on Shadow Point’s property and interfered with

Shadow Point’s riparian rights. In response, Colgan claimed that the boundary

fence was necessary to protect its property and its ability to ingress and egress

from its boathouse because Shadow Point’s tenants have trespassed and moored

boats to the concrete dock, blocking Colgan’s access to its boathouse.

      Shadow Point filed suit and, in its amended complaint, pled counts to quiet

title and for ejectment, injunctive relief, and declaratory relief. The claims to quiet

title and for ejectment sought a declaration and adjudication that Shadow Point

owns the disputed property in fee simple and is entitled to exclusive possession.

The claims for injunctive and declaratory relief sought to protect Shadow Point’s

riparian rights that were allegedly interfered with when Colgan constructed the

boundary fence. Colgan filed its answer and a counterclaim for injunctive relief,

alleging that Shadow Point’s continued use of the concrete dock violated Colgan’s

riparian rights.

      During a bench trial, after Shadow Point’s case-in-chief, Colgan moved for a

directed verdict against all of Shadow Point’s claims on the ground that Shadow

Point failed to prove that it owned the disputed property. The trial court granted



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Colgan’s motion for a directed verdict as to Shadow Point’s quiet title and

ejectment claims, and the trial court expressly found, while rebuffing Colgan’s

attempt to introduce testimony that it owned the disputed property, that “[the court

has] already determined that [Shadow Point] has not proven their [sic] ownership.”

However, the trial court nevertheless denied Colgan’s motion for a directed verdict

as to Shadow Point’s injunctive and declaratory relief claims.

      After the bench trial, the trial court entered a final judgment and concluded,

among other things, that: (1) there was insufficient evidence to determine that there

is one owner of the concrete dock “to the exclusion of all others”; (2) “the disputed

property is filled land, and Shadow Point has riparian rights inuring from the

disputed property”; (3) Colgan’s boundary fence interferes with Shadow Point’s

riparian rights and must therefore be removed; and (4) Shadow Point’s mooring of

vessels at the concrete dock interferes with Colgan’s riparian rights, and thus,

neither Shadow Point nor Colgan may moor vessels there. Only Colgan has

appealed.

                                    ANALYSIS

      Although a trial court’s order granting an injunction is typically reviewed for

an abuse of discretion, “the standard of review is de novo if a legal principle is

involved.” Telemundo Media, LLC v. Mintz, 194 So. 3d 434, 435 (Fla. 3d DCA

2016). Similarly, “[a]lthough this court has recognized that our review of a



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declaratory judgment is limited and the trial court’s decision is accorded a

presumption of correctness, a declaratory judgment may be overturned on appeal if

it is based on a misapplication of law or shown by the record to be clearly wrong.”

Yorty v. Realty Inv. & Mortg. Corp., 938 So. 2d 1, 4 (Fla. 3d DCA 2006); see also

Pages v. Seliman-Tapia, 134 So. 3d 536, 538 (Fla. 3d DCA 2014) (stating that the

trial court’s legal conclusions are reviewed de novo and the trial court’s factual

findings are reviewed for competent substantial evidence).

      Central to the final judgment is the trial court’s finding that the disputed

property is filled land, and thus, Shadow Point has riparian rights inuring from the

disputed property. However, the mere fact that land has been filled is insufficient,

as a matter of law, to establish entitlement to riparian rights. The Legislature has

defined riparian rights as follows:

      Riparian rights are those incident to land bordering upon navigable
      waters. They are rights of ingress, egress, boating, bathing, and
      fishing and such others as may be or have been defined by law. Such
      rights are not of a proprietary nature. They are rights inuring to the
      owner of the riparian land but are not owned by him or her. They are
      appurtenant to and are inseparable from the riparian land. The land to
      which the owner holds title must extend to the ordinary high
      watermark of the navigable water in order that riparian rights
      may attach. Conveyance of title to or lease of the riparian land
      entitles the grantee to the riparian rights running therewith whether or
      not mentioned in the deed or lease of the upland.

§ 253.141(1), Fla. Stat. (2012) (emphasis added); Teat v. City of Apalachicola, 738

So. 2d 413, 414 (Fla. 1st DCA 1999) (stating that “an individual must own



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property down to the ordinary high water mark in order to possess riparian rights”).

Therefore, there must be some theory in the record that supports a finding that

Shadow Point had an ownership interest in uplands that “extend to the ordinary

high watermark of the navigable water” in order to justify the trial court’s

determination that Shadow Point possessed riparian rights in the area of the

disputed property. We have found no such record support. In fact, the trial court

entered a directed verdict on Shadow Point’s claim to quiet title and expressly

stated that Shadow Point failed to prove that it owns the disputed property. Shadow

Point has not appealed these determinations and has therefore waived any

argument challenging them.

      The record supports the trial court’s determination that Shadow Point failed

to prove that it owned the disputed property. First, Shadow Point’s property

description in its warranty deed suggests that, traveling east along Shadow Point’s

northern property line, Shadow Point’s property does not touch the waterway until

after the disputed property. Second, Shadow Point never introduced evidence that

its property, adjacent to the disputed property, was riparian. In fact, Shadow

Point’s own expert surveyor testified that he did not know whether Shadow Point’s

northern property line was riparian because he never conducted a high watermark

survey. Third, Colgan’s expert surveyor actually performed a high watermark

survey and testified that the ordinary high watermark lies to the north of Shadow



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Point’s northern property line near the dock. Thus, because Shadow Point failed to

demonstrate ownership over the disputed property, the trial court erred by finding

that Shadow Point has riparian rights inuring from the disputed property.

      On appeal, Shadow Point has claimed that its riparian rights inure from its

ownership interest in the disputed property pursuant to section 253.12(9), Florida

Statutes (2012), a statute which grants the state’s interests and title in submerged

lands that were permanently filled before July 1, 1975 to landowners who have

record title to immediately upland property or to a portion of the filled land. See

River Place Condo. Ass’n at Ellenton, Inc. v. Benzing, 890 So. 2d 386, 388-89

(Fla. 3d DCA 2004) (“The clear purpose of section 253.12(9) is to remove clouds

on the title to lands filled before July 1, 1975.”). Shadow Point had the opportunity

to prove ownership under section 253.12(9) to the trial court. However, the trial

court expressly stated that Shadow Point failed to prove that it owned the disputed

property and entered a directed verdict against Shadow Point on its claims to quiet

title and for ejectment, and in fact, the record reflects that Shadow Point failed to

establish that when it acquired the property, the relevant section of the northern

boundary of its property (abutting the dock) touched water at all.

      Timing is important to Shadow Point’s claim for riparian rights. Shadow

Point might have been able to establish riparian rights inuring from the section of

its property abutting the dock if it had established that: (1) fill was placed on top



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of the waterway abutting its property in that location, and (2) the placement of fill

occurred after its property and Colgan’s property were subdivided. If the fill was

placed at that location by the prior owner of the combined properties, as Shadow

Point seems to contend, then the fact that the disputed property was filled land

would be irrelevant to Shadow Point’s ownership. The fact that the land was filled

would only be relevant to the prior owner’s claim to the disputed property.

However, Shadow Point failed to establish that the area in question was filled after

the prior owner of the combined Shadow Point property and Colgan property

subdivided its property and conveyed the Shadow Point property to Shadow

Point’s predecessor in interest. In fact, the record seems to suggest otherwise.

      Although it is unclear as to exactly when the prior owner added fill or even

whether that fill was placed on land or water, the record suggests that the prior

owner of the combined properties built the dock and added fill to the property in

1959 or 1960. The record, however, suggests that at the time the prior owner

subdivided the combined property and conveyed what is now the Shadow Point

property to Shadow Point’s predecessor in interest, the Shadow Point property did

not meet the shoreline at that location. Instead, the Shadow Point property at that

location abutted the concrete dock and filled land that constitute the disputed

property.




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      In order to establish its riparian rights in the area around the disputed

property, Shadow Point was required to demonstrate that its property bordered

(was touched by) navigable water post-subdivision. Because Shadow Point did not

establish ownership interest in the dock and filled land beneath the dock; the filled

land and dock separate Shadow Point’s property from the water; and no navigable

water abuts Shadow Point’s property at that location, Shadow Point failed to prove

that it is an upland landowner entitled to riparian rights.

                                   CONCLUSION

      The trial court has expressly found that Shadow Point failed to prove that it

has any ownership rights in the disputed property. Therefore, the trial court erred

by determining that Shadow Point had riparian rights inuring from the same

disputed property and by awarding injunctive relief to protect those rights.

Accordingly, we reverse the final judgment insofar as it granted Shadow Point

declaratory and injunctive relief and remand for the entry of a final judgment in

favor of Colgan. Because Shadow Point has not cross-appealed the trial court’s

grant of injunctive relief in Colgan’s favor, we affirm that portion of the final

judgment without further discussion.

      Reversed in part; affirmed in part.

    ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN
DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE
FILED WITHIN FIVE DAYS THEREAFTER.


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