      Third District Court of Appeal
                             State of Florida

                      Opinion filed September 24, 2014.

                             ________________

                              No. 3D13-3058
                        Lower Tribunal No. 10-334-P
                           ________________


                          James Bellizzi, et al.,
                                 Appellant,

                                     vs.

            Islamorada, Village of Islands, Florida, et al.,
                                 Appellees.

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

     Franklin D. Greenman (Marathon), for appellants.

     Johnson, Anselmo, Murdoch, Burke, Piper & Hochman and Chris
Ambrosio; Vernis & Bowling and Dirk Smits (Islamorada) and Jeffrey L.
Hochman (Fort Lauderdale), for appellees.


Before LAGOA, SALTER and EMAS, JJ.

     SALTER, J.



                             On Motion for Rehearing
      Upon consideration of the appellants’ motion for rehearing and the

appellees’ response, the Court withdraws its opinion of August 6, 2014, replacing

it with the opinion which follows.

      Residential lot owners, Mr. and Mrs. Bellizzi, and Monroe County Land

Trust, Inc. (MCLT), appeal a final judgment and summary judgment order in favor

of the Village of Islamorada (Islamorada) and Venetian Shores Homeowners

Association, Inc. (Association). The parties to this appeal sought to determine

their respective property rights in three roadways (Severino Drive, Venetian Way,

and Venetian Boulevard) in a platted subdivision in Islamorada known as

“Venetian Shores.” We affirm the trial court’s well-reasoned judgment and order,

and we deny the appellees’ motion to dismiss this appeal as to two of the plaintiffs

below, Mrs. Bellizzi and MCLT.1

      I.    Facts and Claims

      Venetian Shores was platted in 1956. Five additional plats were recorded

through 1982, but the determination of this appeal turns on the first three plats.

“Plat No. 1” laid out 130 residential lots and four roads. Pertinent here, Venetian

Boulevard was divided into two segments; that portion of the road joining the

Overseas Highway was depicted as a “Dedicated Road,” and the second (interior)

part of Venetian Boulevard was depicted as a “Private Road.”          The granting

1 The appellees’ motion to dismiss the appeal for lack of jurisdiction as to Mrs.
Bellizzi and MCLT was carried with the case through briefing and oral argument.

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clauses of the first plat stated that the dedicated portion of Venetian Boulevard was

“dedicated to the perpetual use of the public for proper purposes,” with a reversion

to the developer “whenever discontinued by law.” The portion depicted as a

“Private Road” was “reserved for the exclusive use of owners of property in this

subdivision,” with no express term for reversion. (Emphasis added).

      “Plat No. 2” (1957) expanded Venetian Shores, adding more roads, canals,

and residential lots. One road, Porto Salvo Drive, was dedicated to public use with

a reversion to the developer “whenever discontinued by law,” and “[a]ll other

drives and [Venetian Boulevard] are not dedicated but are for the exclusive use of

owners of property in the subdivision.” (Emphasis added).      Finally, “Plat No. 3”

(1961) further expanded the Venetian Shores subdivision. The granting clause

included a provision that “The Boulevard [Venetian Boulevard], Drives, and

Canals as shown hereon are not dedicated to the public, but are reserved for the

exclusive use of owners of property in this subdivision.” (Emphasis added).

      In 1961, the developer assigned its rights to operate and manage the

subdivision to the Association. In 1966, City National Bank (as trustee for the

successor developer) conveyed the roads depicted in Venetian Shores Plat No. 3 to

Monroe County. In 1969, Monroe County deeded the roads in the subdivision to

the Florida Department of Transportation (FDOT). FDOT then filed an official

map of location and survey for Severino Drive, Venetian Way, and Venetian



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Boulevard and paved the roads. In 1984, the roads were quitclaimed by the State

back to Monroe County. Litigation between the Association and the County,

regarding the County’s alleged duty to maintain the roads in the subdivision, was

settled in 1986. In 1997, Islamorada was incorporated as a municipality; the

following year, Monroe County transferred title to the roads in Venetian Shores to

Islamorada, which assumed responsibility for them.

      Meanwhile, Mr. and Mrs. Bellizzi acquired a fee simple interest in Lot 15,

Block 30, Venetian Shores Plat No. 3, in November, 1998, and MCLT acquired a

fee simple interest in 21 lots in various blocks in Plat No. 2, in 2010.2 In the

second amended complaint, the Bellizzis and MCLT asserted causes of action: for

a declaratory judgment that they own the fee simple interest in Severino Drive,

Venetian Way, and Venetian Boulevard “to their midpoints, directly adjacent and

abutting Plaintiffs’ respective properties” (Count I); to quiet title to those areas

within the roadways and canals3 (Count II); for statutory and common law inverse

condemnation compensation for those areas within the roadways, should the court


2 MCLT was allowed to intervene as a plaintiff for purposes of the claims in the
second amended complaint. Mr. Bellizzi is identified as a vice president of
MCLT, and the Bellizzis and MCLT have been represented by the same counsel.
3 In this appeal, the Bellizzis and MCLT have not attempted to pursue their claims
with respect to the canals. In the final judgment, the trial court also noted that
“[Islamorada] has not claimed any interest in the canals,” and thus the court
declined to determine the current owner of the canals.


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determine that Islamorada is the legal owner of the roads (Counts III and IV); and

for a declaratory judgment that the Bellizzis and MCLT own the canals shown on

the plats “to their midpoints, directly adjacent and abutting Plaintiffs’ respective

properties.”

      Islamorada and the Association moved for and obtained a summary

judgment regarding Islamorada’s ownership of the roads. The trial court found,

among other things, that:

      [T]he grantor-developer intended to retain ownership of the entire
      road until it could convey it to the [Association]. By retaining the fee
      to the disputed land, the developer would provide the Association, and
      the individual owners of the development, with a uniform system of
      roads accessing all parts of the development, and the world beyond.

      A final judgment in favor of Islamorada and the Association was issued, and

this appeal followed.4

      II.      Jurisdiction

      As a threshold matter, we must decide whether Mrs. Bellizzi and MCLT

timely invoked this Court’s jurisdiction. We conclude that their omission from the

initial notice of appeal did not prejudice the appellees, Milar Galleries, Inc. v.

Miller, 349 So. 2d 170 (Fla. 1977), and we therefore deny the motion to dismiss

the appeal for lack of jurisdiction as it pertains to each of them. The notice of

appeal identified the final judgment and summary judgment sought to be appealed

4 The Bellizzis and MCLT also moved for summary judgment, and that motion
was denied.

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and one of the appellants.    An amended notice of appeal was filed, and the

appellees have shown no prejudice regarding the initial and apparently inadvertent

omission.

      III.   Analysis: Mr. Bellizzi’s Claims to Part of the Roadways

      At the outset, it should be observed that Mr. Bellizzi’s theory of ownership

of a fee interest in the platted road, Severino Drive, would wreak havoc in

Venetian Shores if validated. If each lot owner owned a fee interest in the property

below the pavement and to the midpoint of any roadway abutting the lot, subject to

the exclusive use of all 531 subdivision lot owners, communal maintenance and

repair of the street would be complex, at best. The trial court considered the plats

and the 1957 Venetian Shores “Declaration Concerning Restrictions and

Improvements” as uncontroverted evidence of the developer’s intention to create

“a uniform system of roads accessing all parts of the development,” and a

“blueprint for the governance of the development as it went forward.” Left to their

own individual calculus of costs and benefits regarding the roads, some lot owners

might prefer (and be willing to contribute their pro rata portion of the cost of) a

uniformly paved and striped roadway, while others might be unwilling to make

such contributions and might prefer to let the roadway revert to spalled asphalt and

crushed coral fill.




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      It should also be mentioned that the record reflects no effort by the Bellizzis,

MCLT, or other lot owners to (a) pay any part of the costs associated with paving

or maintaining the roadways, or (b) obtain a property tax folio number for the

applicable portion of the roadway purportedly owned by each lot owner, much less

to pay property taxes on that small parcel.

      But the test of common sense does not always carry the day in real estate

disputes. We thus evaluate the legal arguments and authorities relied upon by the

Bellizzis and MCLT. Foremost among these is the “common law rule” described

in Smith v. Horn, 70 So. 436 (Fla. 1915), and Servando Building Co. v.

Zimmerman, 91 So. 2d 289 (Fla. 1956). In Smith, that rule is summarized:

      Where the owner of land has it surveyed, mapped, and platted
      showing subdivisions thereof, with spaces for intervening streets or
      other highways between the subdivisions clearly indicated upon the
      map or plat, and conveyances in fee of the subdivisions are made with
      reference to such map or plat, the owner thereby evinces an intention
      to dedicate an easement in the streets or other highways to the public
      use as such, the title to the land under the street remaining in the
      owner or his grantees; and where such conveyances are made with
      reference to the map or plat, the dedication of the easement for street
      purposes cannot be subsequently revoked as against the grantees, and
      the title of the grantees of subdivisions abutting on such streets, in the
      absence of a contrary showing, extends to the center of such highway
      subject to the public easement. And, where the highway is lawfully
      surrendered, the then holder of the title to abutting property and to the
      center of the street has the property relieved of the public easement.

Smith, 70 So. at 436 (citations omitted).




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      Roadways, paving, and automobiles have changed over the intervening

century, but the case is also distinguishable on its facts. In the present case, the

developer never “surrendered” the fee interest in the roadway; rather, the developer

assigned that interest to a successor, which in turn conveyed it to Monroe County,

with conveyances continuing successively to FDOT, back to Monroe County, and

thence to Islamorada. The limited piece of the bundle of rights granted by the plats

to residential lot owners was an easement of use of the roadway by all such

owners, not fee title to a portion of the roadway out to the middle of the street and

abutting the lot.

      Similarly, in Servando Building Co., a mortgagee foreclosed upon a

developer’s reversionary interest in certain streets and alleys shown on a plat and

dedicated to the public. A successor in title to the successful purchaser at the

foreclosure sale claimed fee simple ownership of a portion of two streets shown on

the plat, but later “vacated and discontinued” by the municipality. The trial court

concluded that the developer’s intention was to grant the lot owners title to the

center of those streets subject to the easement granted (and marketed) to the public.

The Supreme Court of Florida affirmed, based on the impracticality of allowing

the claimed owner of the vacated street to deprive lot owners of access, and based

as well on the developer’s obvious intention to make the streets “a factor

indispensable to successful marketing.” Servando Bldg. Co., 91 So. 2d at 293.



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      In the present case, the parties that ultimately acquired the developer’s

reversionary interests were public entities, not a private party, carrying out the

developer’s intention to allow lot owners access to their property. Originally, it is

true, the developer’s express intention was that a guard house would be

constructed at the entrance to Venetian Shores, and that the roads would be private,

for the exclusive use of the lot owners. But, as the trial court concluded, it is

equally clear that “the grantor-developer intended to retain ownership of the entire

road until it could convey it to the [Association].” The developer, its successors,

and the Association ultimately concluded that the transfer of the roads to public

entities was in the best interest of the lot owners. And those decisions were made

and given effect in the public records many years before the Bellizzis or MCLT

acquired any interest in the lots depicted on the plats.

      The present case is also distinguishable from another case relied upon by the

Bellizzis and MCLT, Langston v. City of Miami Beach, 242 So. 2d 481 (Fla. 3d

DCA 1971). In that case, the developer created a road for the private use of the lot

owners, but also granted the abutting lot owners a right to close and vacate the

private road, or part of it. In the present case, the developer retained, and did not

convey to the lot owners, any rights to close or vacate the roadways.

      Finally, we reject the Bellizzis’ and MCLT’s contention that there are “three

documents in the Record that corroborate the finding that the roads in Venetian



                                           9
Shores are private, and not dedicated to the public.” A March 1983 letter from the

Director of the Monroe County Public Works Department to the then-President of

the Association expressed a belief that some of the roads were private roads

(despite the fact that FDOT had paved them) and proposed a series of steps to

bring those roads under County maintenance jurisdiction.         These issues were

resolved in the 1986 settlement of a lawsuit between the Association and County.

A May 1986 letter from the County’s outside engineering consultant (several

months before the 1986 settlement was approved) was apparently written by a non-

lawyer recommending what should be done regarding the roadways and the

wetlands portions of Venetian Shores. The November 2009 letter from an attorney

employed by a title insurer provided a title report to a law firm then representing

Islamorada. The report concludes that the County-Association settlement in 1986

“could clearly be construed to be an offer to dedicate” Venetian Boulevard and the

feeder streets to the west of it, but concludes that without additional documents the

insurer could not insure title. The report does not conclude or concede that the

Bellizzis or MCLT acquired title to any part of the roadways.

      IV.    Conclusion

      The trial court carefully and correctly reviewed the plats, deeds, declaration

of restrictions, and other record evidence regarding the lots and roadways. No




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error having been demonstrated, the final judgment and order granting summary

judgment below are affirmed in all respects.




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