author: VAN NORTWICK, J. MAKAR, J.,

text:
    LANDMARK AMERICAN INSURANCE COMPANY, Appellant, v. SANTA ROSA BEACH DEVELOPMENT CORP. I, Ard Contractors, Inc. and Beach Colony Resort on Navarre East Condominium Association, Inc., Appellees.
    No. 1D11-4882.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2012.

      William R. Lewis and Carol M. Rooney of Butler Pappas WeihmuIIer Katz Craig, LLP, Tampa, for Appellant.
    Jeremy C. Branning and Gayle H. Cramer of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appel-lee Santa Rosa Beach Development Corp. I.
    Shannon P. McKenna of Conroy, Sim-berg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appel-lee Ard Contractors, Inc.
   VAN NORTWICK, J.

Landmark American Insurance Company appeals an adverse final summary judgment in its third party subrogation action against Santa Rosa Beach Development Corp I (SRBD) and Ard Contractors, Inc., appellees. Landmark’s third party complaint was filed in a breach of contract action' instituted against it by Beach Colony Resort on Navarre East Condominium Association, Inc. (Beach Colony), a condominium development in Santa Rosa County, by which Beach Colony sought damages for Landmark’s failure to provide insurance coverage for structural damages allegedly caused by Hurricanes Ivan and Dennis in 2004 and 2005. SRBD was the developer and Ard was the general contractor in connection with the construction of Beach Colony which was completed in 2002. In the order under review, the trial court ruled that SRBD and Ard have no liability to Landmark because in 2005 Beach Colony had entered into an agreement with Ard and SRBD under which Ard and SRBD would undertake corrective work to the stucco exterior cladding to the Beach Colony buildings and in return Beach Colony agreed to release those parties from any claims relating to or arising out of those repairs. Because we agree with the trial court’s reading of the release provisions, we affirm.

Prior to Hurricanes Ivan and Dennis, the Beach Colony condominium building sustained damage resulting from water intrusion through the stucco exterior cladding. In response to this damage, Beach Colony entered into an Agreement for Warranty Repairs with SRBD and Ard in which SRBD and Ard recognized that they owed certain warranty obligations to Beach Colony and that “[cjertain issues have arisen with the exterior cladding of the condominium which have resulted in water intrusion into the condominium.... ” Further, SRBD represented that it intended to repair the water intrusion and bring the exterior cladding in compliance with the warranty obligations under section 718.208, Florida Statutes (2005).

This agreement, in pertinent part, provides, as follows:

2. Developer will effect the corrective work to the exterior cladding to bring such exterior cladding into compliance with the warranties provided by Developer and the General Contractor who constructed the Condominium (“Contractor”) pursuant to Fla. Stat. § 718.208. Developer will pay the expense of such corrective work initially, although Association understands that Developer is also seeking reimbursement for such cost from Developer’s insurers.
3. Developer will have such corrective work performed ... and upon completion of such repairs, will assign and transfer such persons’ warranties and contracts to Association. The manufacturer of certain components of the corrective work shall be required to inspect the installation, application of its product with the frequency as the manufacturer deems necessary to ensure the validity of its warranties.
4. Upon completion of such repairs, the total obligation for the maintenance of such exterior cladding will be turned over to the Association, as is the Association obligation and responsibility under, e.g., Fla. Stat. § 718.203.... Upon the execution and delivery of such warranties, Association, either for itself or in any representative capacity, shall proceed directly against the manufacturer and applicator in the event any claim arises with respect to the sufficiency or adequacy of such repairs, or otherwise arising out of or relating to such repairs in any way, and shall make no claim against Developer or Contractor with respect thereto.
* * *
7. Subject to Developer’s compliance with the requirements of this Agreement ... Association, either for itself or in any representative capacity will not sue or seek any relief whatsoever against Developer or Contractor ... for the conditions which Developer undertakes herein to correct, provided that the repairs undertaken herein by Developer brings such conditions into full compliance with the statutory warranties of Developer and Contractor!.] (Emphasis added).

Pursuant to this agreement, SRBD and Ard constructed a new exterior cladding, taped and inspected all caulking joints, removed and replaced all questionable caulking joints, reworked baseboards, and repainted.

Following Hurricane Ivan in September 2004, Beach Colony notified Landmark of losses sustained to the condominium building. Landmark investigated the claim and determined that water from the storm entered the building through the improperly designed and installed exterior cladding. Because Landmark’s insurance policy provided that it would “not pay for loss or damage caused by or resulting from ... [fjaulty, inadequate or defective ... [design, specifications, workmanship, repair, construction ...Landmark denied the claim. Following Hurricane Dennis in July 2005, Beach Colony again notified Landmark of a loss to the condominium property. Again, after investigation, Landmark denied the claim based on its conclusion that the water damage was caused by the failure to properly install the stucco exterior cladding.

Beach Colony filed suit against Landmark for breach of contract. Landmark raised several defenses and, in turn, filed a third party complaint against SRBD and Ard asserting, among other things, that, should coverage be found to exist under the policy, the cause of damage to Beach Colony was the result of defective construction by Ard and SRBD. The third party complaints alleged counts for breach of contract (as to SRBD), breach of implied warranty of fitness and merchantability, negligence, building code violations pursuant to section 553.84, Florida Statutes, and breach of warranty (as to Ard).

Ard and SRBD raised numerous defenses to the third party complaint. Among their defenses was the assertion that, under the Agreement for Warranty Repairs, Beach Colony had released SRBD and Ard with respect to any liability for the repairs made to the structure. Ard and SRBD each moved for summary judgment on Landmark’s third party complaint, arguing that the Agreement for Warranty Repairs with Beach Colony released them “from all causes of action and gave a covenant not to sue [SRBD] or Ard regarding claims of building defects.” Landmark moved for summary judgment on Beach Colony’s complaint arguing, inter alia, that Beach Colony breached the insurance contract by entering into an agreement with Ard and SRBD for warranty repairs which released the developer and contractor thereby impairing Landmark’s subrogation rights under the policy.

Following hearings, the lower court entered an order in June 2011 granting SRBD’s and Ard’s motions for summaiy judgment. The trial court found that the agreement did release Ard and SRBD from liability for any damage subsequent to the repairs made by SRBD and Ard. The court denied Landmark’s motion for summary judgment finding disputed issues of material fact concerning whether the damage to the condominium building was caused by the hurricanes or the prior stucco cladding defects.

As the issue raised on appeal involves the interpretation of a contract, the de novo standard of review applies. See Powertel, Inc. v. Bexley, 743 So.2d 570 (Fla. 1st DCA 1999). We conclude that the trial court did not err in interpreting the plain language of the Agreement for Warranty Repairs to release SRBD and Ard from any further liability after the corrective work was completed. In paragraph 5 of the agreement, Beach Colony agrees that any claim with respect to the sufficiency or adequacy of the repairs would be made directly against the manufacturer and applicator and it “shall make no claim against Developer or Contractors with respect thereto.” Further, in paragraph 7 of the agreement, Beach Colony agrees that it would “not sue or seek any relief whatsoever against developer or contractor, in any forum, legal administrative equitable or arbitral, for the conditions which the developer undertakes herein to correct, ...” The purpose of the work undertaken by SRBD and Ard pursuant to the Agreement was to repair the stucco cladding and to correct damage caused by water intrusion due to the defective stucco cladding. The repair work was not intended to be limited to the stucco. The defective stucco may have been the cause of the water intrusion damage, but it was not the sole issue to be remedied. Thus, the application of the release was broader in scope than simply relating to repair of the stucco. Landmark’s third party subrogation action was based on defects in the construction of the condominium, and Landmark’s own experts testified below that the damage suffered to the interior of the condominium building was the result of the defective exterior cladding. Thus, the release covered the same matters that were the subject of Landmark’s third party action.

AFFIRMED.

WETHERELL, J., concurs; MAKAR, J., specially concurs with written opinion.

MAKAR, J.,

specially concurring.

I concur in the result in this case, but in doing so note that a possible effect of affirmance of the summary judgment order at issue is to strengthen the case of the insurer, Landmark American Insurance Company, that the property owner— by entering so broad a release of the developer and contractor — may have breached its insurance agreement by impairing the subrogation rights of Landmark under its policy. See, e.g., Galinko v. Aetna Cas. & Sur. Co., 432 So.2d 179 (Fla. 1st DCA 1983) (settlement and release destroys insurer’s right of subrogation; but showing of actual prejudice to insurer is required). Titus v. Emmco Ins. Co., 109 So.2d 781, 782 (Fla. 3d DCA 1959) (affirming summary judgment for insurer where insured violated subrogation agreement in insurance contract thereby preventing insurer from recovering from third party); see generally “Insurer’s Rights Against Parties Who Wrongfully Impair Subrogation Rights Via Settlement And Release; Denial of Unpaid Insurer’s Claim Under Policy”, 16 Steven Plitt, et al., Couch on Insurance § 224:136 (3d ed. 2011) (“As a general rule, an insured who deprives an insurer, by settlement and release, of its right of subrogation against a wrongdoer, thereby provides the insurer with a complete defense to. an action on the policy, unless the insurer has committed a prior breach.”) (citations omitted). Whether Landmark can prove its case is another matter, one that is based on disputed facts to be resolved in light of the preclusive effect of the summary judgment order to bar the insurer from seeking recovery from the developer and contractor.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Alberto GONZALEZ-GOMEZ, M.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 3D11-1840.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2012.
    Rehearing Denied March 8, 2013.

      The Health and Business Law Group and Rafael A. Gaitan and Gus Suarez, Miami, for appellant.
    Mark Graham Hanson and Wings S. Benton, Assistant General Counsels, Prosecution Services Unit, Tallahassee, for ap-pellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   SUAREZ, J.

Dr. Alberto Gonzalez-Gomez appeals from a final order of the Board of Medicine revoking his license to practice medicine. We affirm.

Gonzalez-Gomez was convicted, in United States District Court, of conspiracy to commit health care fraud in violation of federal law. He was sentenced to twenty-four months in federal prison, followed by twenty-four months of supervised release, payment of costs and restitution to the Medicare in the amount of $254,469.00. He continued to cooperate with the federal authorities and aid in their ongoing investigation; he did not notify the State Board of Medicine that he had surrendered his license to practice medicine to his parole officer.

The Florida Department of Health subsequently brought a disciplinary action against Gonzalez-Gomez in a three-count Administrative Complaint. Count 1 charged Gonzalez-Gomez with violating section 458.331(l)(c), Florida Statutes (2009), by being convicted of a crime directly relating to the practice of medicine, regardless of adjudication. Counts 2 and 3 charged the defendant with violating section 456.072(l)(x), Florida Statutes (2009), by failing to report the conviction to the Board of Medicine within thirty days and by failing to update practitioner information to reflect a conviction for health care fraud.

Gonzalez-Gomez requested an informal hearing before the Florida Board of Medicine (“Board”), in order to attempt to mitigate the penalties. By requesting an informal hearing, as opposed to a formal hearing, Gonzalez-Gomez did not dispute the allegations of fact contained in the Administrative Complaint. Both parties were represented by counsel at the administrative hearing. Gonzalez-Gomez argued that the Board should follow its own precedent in similar factual cases and mitigate the penalty. The prosecuting attorney recommended the only disciplinary rule that applied, i.e., revocation and fíne pursuant to Florida Administrative Code Rule 64B8-8.001(2)(c)l. Pursuant to that rule, the Board revoked Gonzales-Gomez’s medical license and imposed a $10,000 fine.

Gonzalez-Gomez argues on appeal that the Board erred by disregarding its own precedents when considering mitigation of the penalty. At the hearing, Gonzalez-Gomez presented evidence in mitigation of the penalty, but the only guideline and penalty applicable to the appellee’s offense is that set forth by statute, and that is what the Board concluded was the proper outcome. See Fla. Admin. Code R. 64B8-8.001(2)(c)l. Gonzalez-Gomez was convicted of “a crime directly relating to the practice or ability to practice” and “1. Involving a crime related to healthcare fraud in dollar amounts in excess of $5,000.00.” Id. The “first offense” penalty under the Rule is “1. Revocation ... of licensure and a fíne of $10,000.” Id. Gonzalez-Gomez was convicted of fraud in excess of $5,000.00, and thus the penalty for exceeding that threshold is what the Board applied.

The Board’s imposition of a penalty is reviewed under an abuse of discretion standard. Mendez v. Fla. Dep’t of Health, 943 So.2d 909, 910 (Fla. 1st DCA 2006). On review of penalties imposed by an administrative agency, the appellate court must determine whether there are valid reasons in the record in support of the agency’s order. Grimberg v. Dep’t of Prof'l Regulation, Bd. of Med., 542 So.2d 457, 457 (Fla. 3d DCA 1989); see also Fla. Real Estate Comm’n v. Webb, 367 So.2d 201 (Fla.1978). Also, reviewing courts cannot substitute their judgment for that of medical boards, which have great expertise and broad statutory discretion. Dep’t of Prof'l Regulation v. Bernal, 531 So.2d 967 (Fla.1988); see also Aldrete v. Dep’t of Health Bd. of Med., 879 So.2d 1244, 1246-47 (Fla. 1st DCA 2004) (recognizing that imposition of a penalty is a complex task that rests within the sound discretion of the Board); Mendez, 943 So.2d at 911 (“When the Board imposes a penalty within the permissible statutory range, an appellate court has no authority to review the penalty.”); Grimberg, 542 So.2d at 458. We conclude the Board did not abuse its discretion in imposing the penalty it did.

Further, the record clearly shows that Gonzalez-Gomez did not dispute any of the facts established in his federal conviction for Medicare fraud. After consultation with his attorney, he responded to the Board’s Complaint by requesting an informal hearing, and maintained the position throughout the administrative proceedings that there were no disputed issues of fact. At the outset of the administrative hearing, the Board recited that this was an informal hearing at which no disputed issues of fact would be presented. The doctor’s counsel did not object to or dispute this statement. It is undisputed that Gonzalez-Gomez pleaded guilty to Medicare fraud and entered into a plea agreement with the federal authorities that gave him liberal penalty reductions in exchange for his continued cooperation in the ongoing Medicare investigation. No one disputed that he actually cooperated until the case closed. These are not “disputed issues of fact” that can turn an informal hearing into a formal evidentiary hearing. Finally, the Board’s decision not to mitigate the statutory penalty is not an abuse of discretion. See Mendez, 943 So.2d at 911; Grimberg, 542 So.2d at 457, 458.

The administrative order under review is affirmed.

      . The Florida Board of Medicine is the administrative body charged with final agency action in the regulation of the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes.

      . The appellant cites to administrative rulings from agencies other than the Board of Medicine, as well as to cases that are legally not apposite. Further, the "Llovet” case the appellant refers to appears to differ in the level of offense, and therefore the level of penalty to be applied.

      . Indeed, in the record, the Board gave its reasons for not mitigating:
      CHAIRMAN THOMAS — -And the main concern that I have is health care fraud. Whether he told his parole officer or told his counsel is inconsequential. We are addressing the fact that he was involved in a major fraud and I believe in the state of Florida today people involved in medical fraud should not be practicing. And the only fair resolution is revocation.


author: PER CURIAM.

text:
    Philip PANCOAST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5581.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2012.
    Rehearing Denied Feb. 21, 2013.
    Philip Pancoast, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, C.J., ROBERTS and RAY, JJ., concur.


author: ROTHENBERG, J. SHEPHERD, J.,

text:
    Maria Pia Dalmau VORBECK, et al., Appellants, v. Diego BETANCOURT, Appellee.
    No. 3D12-1133.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2012.

      Guillermo F. Mascaro, Coral Gables, for appellants.
    Newman & Tempkins, P.A., and Harry Tempkins, Miami Beach, for appellee.
    Before SHEPHERD, ROTHENBERG and LOGUE, JJ.
   ROTHENBERG, J.

Maria Pia Dalmau Yorbeck and her siblings (collectively, “the Vorbecks”) appeal from the dismissal with prejudice of their bill of discovery complaint. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Upon the death of their father, the Vor-becks inherited fifty-percent interests in two companies: Dalbeta LLC and American Postal Business Services, Inc. (collectively, “the Companies”). Eventually, the Vorbecks began to suspect that the owner of the remaining fifty-percent interests in the Companies, Diego Betancourt (“Be-tancourt”), had misappropriated the Companies’ funds. Thus, the Vorbecks filed a pure bill of discovery demanding production of the Companies’ business records and naming Betancourt as the defendant.

In their complaint, the Vorbecks alleged that they had previously requested access to the Companies’ records, but Betancourt had refused to make them available. The Vorbecks further explained that they ultimately intended to pursue a misappropriation action against Betancourt, but filed the bill of discovery first to substantiate their claims. As they stated in their complaint, “[the Vorbecks] verily believe they have a right to institute a legal action against the Defendant but cannot make such positive determination until they have possession and control of the records requested.”

Betancourt filed a motion to dismiss, arguing that the Vorbecks failed to satisfy the pleading requirements for a bill of discovery. At the hearing on the motion, Betancourt also argued that the case should be dismissed because the Vorbecks proceeded under the wrong cause of action and against the wrong defendant. Specifically, Betancourt argued that a claim under section 608.4101(2), Florida Statutes (2012), rather than a bill of discovery, was the proper cause of action, and that the Companies, rather than Betancourt, were the proper defendants.

At the conclusion of the hearing, the trial court orally granted the motion to dismiss with prejudice, stating, “I don’t think the Bill of Discovery is the right vehicle to go about what you’re talking about. I think that it’s a statutory action.” The trial court subsequently entered a written order consistent with its oral ruling. The Vorbecks did not contemporaneously object to the trial court’s dismissal with prejudice, seek leave to amend their complaint, or file a motion for rehearing or reconsideration. This appeal followed.

ANALYSIS

On appeal, the Vorbecks contend they sufficiently pleaded a viable cause of action for a bill of discovery, and, even if they did not, they are nonetheless entitled to reversal because the trial court erred in dismissing the case with prejudice. We disagree. As we more fully explain below, it is evident from the face of the complaint that the Vorbecks sought to misuse the bill of discovery as part of a “fishing expedition” to search for a cause of action, or to confirm that their suspected causes of action were viable. Further, we hold that the filing of a bill of discovery in this case was inappropriate because the Vor-becks possessed an adequate remedy at law, and did not risk being denied access to the courts. Finally, while we agree with the Vorbecks that the trial court erred in dismissing the case with prejudice, the Vorbecks failed to preserve this issue for appellate review. For these reasons, we affirm.

I. The bill of discovery was improper because the Vorbecks (1) filed it merely to substantiate their suspected claims and (2) possessed an adequate remedy at law.

The pure bill of discovery originated in equity as a mechanism for obtaining “the disclosure of facts within the defendant’s knowledge, or deeds or writings or other things in his custody, in aid of the prosecution or defense of an action pending or about to be commenced....” First Nat’l Bank of Miami v. Dade-Broward Co., 125 Fla. 594, 171 So. 510, 510-11 (1937). “[Although a ‘pure bill of discovery remains part of our legal system, its use and usefulness diminished greatly when Florida relaxed its pleading requirements to authorize liberal discovery.’ ” Venezia Lakes Homeowners Ass’n v. Precious Homes at Twin Lakes Prop. Owners Ass’n, 34 So.3d 755, 758 (Fla. 3d DCA 2010) (quoting Kirlin v. Green, 955 So.2d 28, 29 (Fla. 3d DCA 2007)). Under the current state of the law, the filing of a bill of discovery is justified only in “narrow and limited circumstances.” Venezia Lakes, 34 So.3d at 756. Specifically, a bill of discovery may be used “[i]n the absence of an adequate legal remedy ... ‘to identify potential defendants and theories of liability and to obtain information necessary for meeting a condition precedent to filing suit.’” Id. at 758 (quoting Mendez v. Cochran, 700 So.2d 46, 47 (Fla. 4th DCA 1997)).

The facts in Adventist Health System/Sunbelt, Inc. v. Hegwood, 569 So.2d 1295 (Fla. 5th DCA 1990) (en banc), illustrate one of the rare situations in which the filing of a bill of discovery is justified. In Adventist, the plaintiffs child died while being treated in a hospital. Id. at 1296. The plaintiff filed a bill of discovery seeking deposition testimony from the healthcare providers who had knowledge of her child’s death. Id. In a unanimous en banc decision, the Fifth District held that the bill of discovery was proper because the plaintiff needed the testimony to satisfy a condition precedent to filing a medical malpractice claim, but the statutory discovery procedures governing such claims did not enable the plaintiff to depose the providers. Id. at 1297. Ultimately, “[without additional discovery beyond that available under section 768.57, Florida Statutes (1987), [the Mother] could not file a malpractice case against the petitioner,” and would thereby be denied access to the courts. Id. Thus, the mother lacked an adequate remedy at law, and the equitable bill of discovery was justified to preserve her cause of action. Id.

Absent a comparable set of circumstances, however, the issuance of a bill of discovery places an “undue burden” on the Florida court system. See Kirlin, 955 So.2d at 30. Accordingly, it is now well settled that a bill of discovery may not be used “as a fishing expedition to see if causes of action exist,” Venezia Lakes, 34 So.3d at 758 (quoting Publix Supermarkets, Inc. v. Frazier, 696 So.2d 1369, 1371 (Fla. 4th DCA 1997)); to substantiate one’s suspected causes of action, Kirlin, 955 So.2d at 30; or to acquire “a preview of discovery” for a prospective lawsuit. Venezia Lakes, 34 So.3d at 758.

In Kirlin, for example, a former employee of the Archdiocese of Miami, Inc. (“the Archdiocese”) filed a bill of discovery seeking production of the Archdiocese’s business records. Kirlin, 955 So.2d at 29. In the bill, the plaintiff alleged she had been wrongfully terminated when she discovered that two parishioners had misappropriated funds from the parish’s coffers. Id. She indicated that she intended to file a “prospective lawsuit” against the Archdiocese and the parishioners for the misappropriation of funds and for wrongful termination, but filed the bill of discovery first to substantiate her claims. Id. As stated in her complaint:

[ Wjithout the requested discovery, [the Plaintiff would] be limited to filing a lawsuit based only on the defendants’ statements and upon information and belief. If this Court grants the pure bill of discovery in this case and the discovery produced indicates that a lawsuit would be groundless or frivolous, this would serve the courts’ as well as the parties’ best interests....

Id.

On certiorari review, this Court held that the bill of discovery was improper because it was being used merely to substantiate the plaintiffs prospective causes of action, i.e., to determine whether sufficient evidence existed to support her allegations, or to render her suspected causes of action viable or non-frivolous:

[ I]t is evident from [the plaintiffs] own complaint that she improperly s[ought] to utilize the pure bill of discovery in order to determine whether sufficient evidence exists to render her causes of action viable and/or nonfrivolous. A pure bill of discovery, however, is not to be used to determine whether evidence exists to support an allegation
[ H]er complaint supports the conclusion that her ‘only reason for seeking discovery by means of the pure bill, rather than filing a civil action against Petitioners and then proceeding with discovery in that context, is [her] reluctance to become exposed to claims for [Petitioners’] attorneys fees in filing a frivolous lawsuit without first determining what, if any, evidence supports her grounds for recovery. This is not the purpose of a pure bill of discovery.

Id. at 30 (emphasis added). This Court also noted that the plaintiff did not lack an adequate remedy at law, stating, “[i]f [the plaintiff] believes her allegations to be valid, she may file suit. However, she may not utilize the trial court’s resources to go on a pre-suit ‘fishing expedition’ to substantiate her claims.” Id.

In this case, the record reflects the Vorbecks filed their bill of discovery to embark on the same sort of impermissible “fishing expedition” described in Kirlin. As in Kirlin, the Vorbecks suspected that Betancourt had misappropriated the Companies’ funds, and explained in their complaint that they ultimately intended to file a misappropriation action, but filed the bill of discovery first to substantiate their suspected claims, or, as they phrased it, to make “a positive determination” that their suspected claims have merit. Thus, as in Kirlin, it is evident from the face of the complaint that the Vorbecks sought to misuse the bill of discovery to “see if causes of action exist,” id. at 29, or to determine whether there is sufficient evidence to render their suspected causes of actions “viable and/or nonfrivolous.” Id. at 30. We reiterate our holding in Kirlin that “[a] pure bill of discovery ... is not to be used to determine whether evidence exists to support an allegation.” Id.

Further, we hold that this case is distinguishable from Adventist in that the Vor-becks do not lack an adequate remedy at law and do not risk being denied access to the courts. On the contrary, as in Kirlin, “[i]f [the Vorbecks] believe[ ] [their] allegations to be valid,” there is no statutory impediment precluding them from filing suit. Id. Indeed, as both Betancourt and the Vorbecks acknowledge, because the Vorbecks are shareholders or members of the Companies, they possess various statutory rights that would enable them to access the Companies’ records. See §§ 608.4101, 607.1603, Fla. Stat. (2012). For these reasons, we affirm the trial court’s determination that the Vorbecks failed to satisfy the pleading requirements for a bill of discovery.

II. The trial court erred in dismissing the case with prejudice, but the Vorbecks failed to preserve this issue for appellate review.

Despite the pleading deficiencies outlined above, we agree with the Vor-becks that the dismissal should have been without prejudice. It is well established that “a dismissal with prejudice should not be ordered without giving the plaintiff an opportunity to amend the defective pleading, unless it is apparent that the pleading cannot be amended to state a cause of action.” Kairalla v. John D. & Catherine T. MacArthur Found., 534 So.2d 774, 775 (Fla. 4th DCA 1988). “Where a party may be able to allege additional facts to support its cause of action or to support another cause of action based on a different legal theory, dismissal with prejudice is an abuse of discretion.” Kapley v. Borchers, 714 So.2d 1217, 1218 (Fla. 2d DCA 1998).

In this case, the trial court dismissed the Vorbeck’s original complaint with prejudice while simultaneously acknowledging that the Vorbecks possessed a potential statutory cause of action. Thus, it cannot be said that it was “apparent” to the trial court that the complaint could not have been amended to state a cause of action under a different legal theory, especially in light of the fact that the Vorbecks had not been given a single opportunity to do so. Indeed, the basis for Betancourt’s motion to dismiss was not that the Vorbecks lacked any cause of action, but that they proceeded under the wrong cause of action and against the wrong defendant. Accordingly, the correct course would have been to dismiss the complaint without prejudice to allow the Vorbecks a chance to amend it.

However, the Vorbecks failed to preserve this issue for appellate review. The rule of preservation, which is a keystone in our appellate process, dictates that “[i]n the absence of fundamental error, an appellate court will not consider an issue that has been raised for the first time on appeal.” Keech v. Yousef, 815 So.2d 718, 719 (Fla. 5th DCA 2002); see also Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (“As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal.”). As Florida courts have long recognized, “[i]n order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation..." Sunset Harbour, 914 So.2d at 928 (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)).

It is now well settled that the rule of preservation applies to the improper dismissal of a complaint with prejudice. See Stander v. Dispoz-O-Products. Inc., 973 So.2d 603, 605 (Fla. 4th DCA 2008) (noting that “a party who does not seek to amend in the trial court cannot raise the issue of amendment for the first time on appeal,” and holding that the plaintiff waived the right to challenge the dismissal with prejudice because when the trial court orally “announced that it was dismissing with prejudice,” the plaintiff merely responded “Thank you, your Honor,” and “did not request leave to amend the complaint, nor did plaintiff move for rehearing to amend after the order of dismissal was entered”); Jelenc v. Draper, 678 So.2d 917, 918 n. 1 (Fla. 5th DCA 1996) (“The Jelencs alternatively argue that even if dismissal was proper, it should have been without prejudice to allow them the opportunity to amend their complaint. While our disposition of the case moots this claim, we note that we would not have been able to address the claim because the record does not disclose that the Jelencs ever requested the opportunity to amend, and thus, the issue was not preserved for appellate review.”); Century 21 Admiral’s Port, Inc. v. Walker, 471 So.2d 544, 545 (Fla. 3d DCA 1985) (holding that the “appellants’ failure to seek leave to amend prior to the dismissal with prejudice or to move for rehearing requesting leave to amend, precludes consideration of the issue for the first time on appeal”); see also Thomas v. Hosp. Bd. of Dirs. of Lee Cnty., 41 So.3d 246, 255 (Fla. 2d DCA 2010). Thus, the failure to raise an issue regarding an improper dismissal with prejudice at the trial level constitutes a waiver of this issue on appeal. See Keech, 815 So.2d at 720 (“The failure to preserve an issue for appellate review constitutes a waiver of the right to seek reversal based on that error”).

In this case, the Vorbecks failed to raise any issue at the trial level with respect to the improper dismissal with prejudice, despite having had various opportunities to do so. First, the record reflects the Vor-becks did not seek leave to amend the complaint at any point during the litigation below. Further, as in Stander, the Vor-becks failed to contemporaneously object when the trial court orally pronounced that it was “going to grant the motion [to dismiss] with prejudice,” and did not file a motion for rehearing to amend after the order of dismissal was entered. Thus, the Vorbecks failed to preserve this issue for appellate review, and thereby waived their right to challenge the improper dismissal with prejudice. Because we may not consider this issue for the first time on appeal, we affirm the trial court’s dismissal with prejudice.

Affirmed.

SHEPHERD, J.,

concurring.

I write only to clarify that my reading of the majority opinion does not prohibit the Vorbecks from maintaining a separate substantive cause of action against Diego Be-tancourt. See § 608.4101(2), Fla. Stat. (2012)

      . See § 768.57, Fla. Stat. (1987).


author: LOGUE, J.

text:
    The BALMORAL CONDOMINIUM ASSOCIATION, Appellant, v. Grace GRIMALDI, Appellee.
    No. 3D12-1037.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2013.

      Kubicki Draper, and Sharon C. Degnan, Fort Lauderdale, for appellant.
    Welbaum Guernsey, and Robert A. Hingston and Heather M. Jonczak, Coral Gables, for appellee.
    Before LAGOA and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   LOGUE, J.

The Balmoral Condominium Association (“Balmoral”) appeals from an order that granted Grace Grimaldi’s (“Ms.Grimaldi”) motion to vacate a final judgment. Because the motion was not authorized by either rule 1.530 or 1.540 of the Florida Rules of Civil Procedure, we reverse the order granting the motion to vacate and leave the final judgment intact. This case illustrates the danger of conflating the very different approaches to rehear or vacate final orders provided by rules 1.530 and 1.540.

I.

The litigation history between Balmoral and Ms. Grimaldi is somewhat convoluted and lengthy — spanning two lawsuits and five years. For our purposes, the pertinent procedural history begins with the trial court’s entry on September 8, 2011, of a final summary judgment in favor of Bal-moral against Ms. Grimaldi. Ms. Grimaldi failed to appear at the hearing or otherwise contest the entry of the judgment. Within the time allowed, however, Ms. Gri-maldi served a motion for rehearing (“the motion for rehearing”) pursuant to rule 1.530. The motion for rehearing sought to set aside the summary judgment on the basis that Ms. Grimaldi was too ill to contest the summary judgment motion.

The motion for rehearing was duly set for hearing, argued by counsel, and denied by the trial judge on February 21, 2012. At that hearing, Ms. Grimaldi’s newly acquired counsel produced an additional motion which is the subject of this appeal. Titled “motion to vacate and/or for rehearing” (“the motion to vacate”), this additional motion contended that the summary judgment was entered erroneously on the legal merits. Concerned about surprise to the opposing party, the trial court declined to consider the additional motion at the hearing. As mentioned above, the trial court denied the pending motion for rehearing. The trial court agreed, however, to entertain the motion to vacate at a later date.

On March 19, 2012, the trial court held a hearing on Ms. Grimaldi’s motion to vacate the summary judgment. Balmoral argued that the motion to vacate was a successive, and therefore unauthorized, motion for rehearing. The trial court acknowledged that it was without jurisdiction to entertain the portion of the motion to vacate requesting rehearing because it had already entered an order denying rehearing. Nevertheless, the trial court maintained it had jurisdiction to consider Grimaldi’s motion to vacate pursuant to rule 1.540. During the hearing, the trial court orally granted the motion to vacate, reasoning that “the court should have never granted [summary judgment] on Count I and II. That was in error.” The trial court entered a written order granting the motion to vacate on September 8, 2011. This timely appeal follows. Although the order being appealed is non-final, we have jurisdiction. Fla. R.App. P. 9.180(5).

II.

The resolution of this matter turns on a trial judge’s authority to reconsider and modify final orders under rules 1.530 and 1.540. The starting point for understanding these rules is the need for finality: “The importance of finality in any justice system ... cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end.” Witt v. State, 387 So.2d 922, 925 (Fla.1980). Reflecting a balance between the need for finality and the interest of allowing appropriate corrections to final orders, rules 1.530 and 1.540 provide two very different approaches for judges to revisit final judgments. See B. Berman, Florida Civil Procedure at ¶¶ 530.1 — 540.8 (2008). As explained more fully below, rule 1.530 provides a short window of time for a court to reconsider a final order for a broad range of reasons; rule 1.540, on the other hand, provides a larger window of time for a court to change a final order but only for a narrow, enumerated list of reasons. Litigants intermingle the provisions of these rules at their risk.

The grounds for rehearing under rule 1.530 are broad. Under rule 1.530, a party may move for rehearing of final orders in order “to give the trial court an opportunity to consider matters which it overlooked or failed to consider.” Carollo v. Carollo, 920 So.2d 16, 19 (Fla. 3d DCA 2004) (citing Pingree v. Quaintance, 394 So.2d 161 (Fla. 1st DCA 1981)). As this Court has explained, under rule 1.530,

[ a] rehearing is a second consideration of a cause for the sole purpose of calling to the attention of the court any error, omission, or oversight that may have been committed in the first consideration. Upon the timely filing of a petition for rehearing, the court may reopen the case and reconsider any or all of the provisions of its final decree.

Langer v. Aerovias, S.A., 584 So.2d 175, 176 (Fla. 3d DCA 1991) (citation and internal quotation omitted). These broad grounds include the contention that the final order conflicts with the governing law and is otherwise simply wrong on the merits.

But the time limit for serving a motion for rehearing under rule 1.530 is short. Rule 1.530(b) provides that “[a] motion for new trial or for rehearing shall be served not later than 10 days after the return of the verdict in a jury action or the date of filing the judgment in a non-jury action.” Thus, while a timely motion for rehearing can be amended by leave of court before the motion is determined, id., “the trial court has no authority either to permit the filing of any further motion for rehearing beyond the one authorized by Florida Rule of Civil Procedure 1.530, or to extend the time for filing that motion.” Capital Bank v. Knuck, 537 So.2d 697, 698 (Fla. 3d DCA 1989) (citations omitted), cited with approval in Wilson v. Ford, 949 So.2d 1151, 1152 (Fla. 3d DCA 2007); see also Fla. R. Civ. P. 1.090(b). As a result, “once a judgment becomes final—as where (a) a final judgment has been entered, and (b) a motion for rehearing under 1.530 has been denied or no such motion is filed and the ten days for filing same has expired— the trial court loses jurisdiction to rehear the judgment on the merits.” Herskowitz v. Herskowitz, 513 So.2d 1318, 1319 (Fla. 3d DCA 1987).

In contrast to rule 1.530, the grounds to seek relief from a final judgment or order under rule 1.540 are narrow. In fact, the grounds for relief are strictly limited to an enumerated list. Bank of Am., N.A. v. Lane, 76 So.3d 1007, 1008 (Fla. 1st DCA 2011) (“[T]he trial court is restricted in providing relief from judgments, decrees, or orders to the limited number of grounds set forth in Florida Rule of Civil Procedure 1.540.”). In addition to clerical error, this list is limited to “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.” Fla. R. Civ. P. 1.540(b).

Significantly, the contention that the order was simply wrong as a matter of law on the merits is not one of the enumerated grounds for relief under rule 1.540. Paladin Props. v. Family Inv. Enters., 952 So.2d 560, 562 (Fla. 2d DCA 2007); Schrank v. State Farm Mut. Auto. Ins. Co., 438 So.2d 410, 412 (Fla. 4th DCA 1983); Pompano Atlantis Condo. Ass’n v. Merlino, 415 So.2d 153, 154 (Fla. 4th DCA 1982). That ground must be raised in a motion under rule 1.530 or on plenary appeal. See Paladin Props., 952 So.2d at 562; Schrank, 438 So.2d at 412; Pompano Atlantis Condo. Ass’n, 415 So.2d at 154.

While the grounds for a motion to vacate under rule 1.540 are narrow, the time limit for serving a motion for relief from judgment under rule 1.540 extends far beyond the ten days allowed under rule 1.530. Rule 1.540(b) provides that the “motion shall be filled within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order or proceeding was entered.” Keeping in mind these characteristics of the different rules, we turn to an application of the law to the particular facts of this case.

III.

After summary judgment was entered against her, Ms. Grimaldi filed her first motion, which we treat as a timely motion for rehearing pursuant to rule 1.530. As the trial court recognized, once it denied that motion, it was divested of jurisdiction to hear any additional motions for rehearing filed pursuant to rule 1.530. See Wilson, 949 So.2d at 1152 (“[T]rial courts have no authority to permit the filing of any further motion for rehearing beyond the one authorized by rule 1.530.”) (quoting Arleo v. Garcia, 695 So.2d 862 (Fla. 4th DCA 1997)); Capital Bank, 537 So.2d at 698 (“[T]he lower court could do nothing after the appropriate disposition of the single authorized post-trial motion”).

Ms. Grimaldi urges us to treat her second motion, the motion to vacate, as a motion filed pursuant to rule 1.540 and, indeed, the trial judge treated it in that manner. The only arguments raised in that motion, however, are those asserting that the trial court had erred as a matter of law when it granted the summary judgment. As discussed above, the contention that a final order is wrong as a matter of law on the merits is not one of the enumerated grounds for relief under rule 1.540: “the law is well settled that a trial court is restricted in vacating a final judgment under Fla. R. Civ. P. 1.540 to the narrow grounds stated therein, and is not empowered to revisit a final judgment on the merits so as to correct errors of law as the trial court may do on a motion for rehearing under Fla. R. Civ. P. 1.530.” Herskowitz, 513 So.2d at 1319; see also Paladin, 952 So.2d at 562 (“[Jjudicial errors must be corrected by way of an appeal.”); Schrank, 438 So.2d at 412 (“A mistaken view of the law ... constitutes judicial error rather than simple mistake, and must be presented by motion to rehear under Rule 1.530.”) (internal citation omitted).

Thus, Ms. Grimaldi’s motion to vacate was not authorized either by rule 1.530 or 1.540. Accordingly, we reverse the trial court’s order that vacated the summary judgment in favor of Balmoral against Ms. Grimaldi. Because the trial court lacked jurisdiction to vacate the final judgment, the September 8, 2011, final judgment stands.

Reversed and remanded with directions consistent herein.


text:
    Raylan JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1956.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.
    Rehearing Denied Mar. 5, 2013.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The defendant appeals from the revocation of his probation and the imposition of an eight-year prison sentence on the underlying offense. The state and defendant agree that there is no record of an admission colloquy having been conducted prior to the trial court’s revoking the defendant’s probation and that, therefore, reversal and remand are required. See Balsinger v. State, 974 So.2d 592 (Fla. 2d DCA 2008); Randall v. State, 741 So.2d 1183 (Fla. 2d DCA 1999). Accordingly, we reverse the revocation of the defendant’s probation, vacate the sentence imposed below, and remand for further proceedings.

On remand, if the defendant wishes to enter an admission to the violation, the trial court shall, prior to revoking his probation or entering sentence, hold an admission colloquy. At a minimum, the colloquy must inform the defendant of the allegations against him, his right to counsel, and the consequences of an admission or the right to a hearing and it shall afford him an opportunity to be heard. See Edwards v. State, 721 So.2d 744 (Fla. 4th DCA 1998); see also Johnson v. State, 776 So.2d 1024 (Fla. 1st DCA 2001). If the defendant does not wish to enter an admission, the court shall hold an evidentiary hearing on the violation allegations and, based on the evidence, determine whether the defendant violated the terms of his probation.

Reversed and remanded.

PADOVANO, RAY, and MAKAR, JJ„ concur.


author: RAY, J.

text:
    ALACHUA LAND INVESTORS, LLC, Appellant, v. CITY OF GAINESVILLE, a political subdivision, Appellee.
    No. 1D11-6579.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2013.

      S.W. Moore, of Moore, Bowman & Rix, P.A., Sarasota; and Patrice Boyes, of Patrice Boyes, P.A., Newberry, for Appellant.
    Timothy J. McDermott, of Akerman Senterfitt, Jacksonville; and Daniel M. Nee, Office of City Attorney, Gainesville, for Appellee.
   RAY, J.

Alachua Land Investors, LLC (ALI), appeals a final judgment entered in favor of City of Gainesville (City) on ALI’s action for inverse condemnation. ALI contends that the trial court’s ruling on ripeness constitutes error as a matter of law because ALI filed a meaningful application and obtained a final decision from the City. Given ALI’s failure to satisfy the ripeness requirement, we affirm.

I. Facts and Procedural History

ALI does not seek review of the trial court’s findings of fact. This action arose from the City’s denial of plat approval for the final development phase of the 300-acre Blues Creek residential subdivision owned by Larry and Bonnie Ross, through ALI. ALI and its predecessor developed this property over the years in a series of units and phases. The specific property involved in this litigation comprises 127 acres, thirty-seven of which ALI intended for residential development of Unit Five, Phases Two and Three. These two phases represent the last remaining stages of the extensive Blues Creek development. The other parcel within the 127 acres comprises ninety unimproved acres and is designated as a “Drainage Easement, Developed Recreation and Conservation Area” on the Blues Creek Master Plan (Master Plan). The conservation area is of particular significance in this litigation because it includes the most environmentally sensitive area in the Master Plan and is nearly surrounded by the developable portions of the Blues Creek subdivision. A waterway (Blues Creek) flows through the conservation area.

The Suwannee River Water Management District (SRWMD) permitted the ninety-acre conservation area for retention of surface water from the surrounding land. A third-party environmental group brought an administrative challenge to the conservation area permit, which resulted in a June 1988 negotiated settlement agreement between the landowner (ALI’s owner) and the environmental group. The SRWMD accepted the terms of the settlement agreement as an amendment to the permit. The settlement agreement includes the following land-use restrictions:

There shall be no construction or disturbance of the conservation area pre-or post-development, nor any developed recreation built in the conservation area, except for nature trails, walkover structures and gazebos which retain the land predominantly in its natural, scenic and wooded condition; or minor works necessary to control erosion or assure dispersion (sheetflow) of runoff entering the conservation area provided they are out of or at the boundary of the conservation area.

(emphasis added). This language appears in the Master Plan in substantially the same form. Additionally, under general notes, the Master Plan mandates that a fifty-foot construction buffer be provided on both sides of the Blues Creek center-line.

The Master Plan is a part of the existing zoning regulations governing ALI’s property. A city ordinance requires a plat application to conform with existing zoning requirements. Under the City’s ordinances, the City Commission is the only Gainesville governmental body that can grant final approval to a subdivision plat application. In its prior applications for proposed Phases Two and Three of Unit Five, ALI never proceeded through the full administrative process. Petition 76SUB was the first and only plat application that ALI submitted to the City Commission for a review and a vote on the request for design approval of these two phases. The petition indicated that a sanitary sewer line was projected to go through the ninety-acre conservation area for approximately 300 feet and across Blues Creek itself. Given the fact that ALI’s owner was directly involved in the negotiations that led to the settlement agreement, ALI knew of the land-use restrictions governing “construction or disturbance of the conservation area.”

In May 2008, the City Commission voted 5-2 to deny the petition. ALI filed an inverse condemnation action alleging a partial regulatory taking by the City in the denial of plat approval. The trial court found that the nature and location of the proposed sewer line violates the settlement agreement and is inconsistent with existing zoning regulations. The court determined that some evidence adduced at trial had addressed alternatives to the proposed sewer line across the conservation area. One alternative was a lift station, albeit at greater expense. Another option was to convert the eight lots (constituting Phase Three of Unit Five) into an “estate lot” served by a septic tank, subject to approval of a variance. Because ALI neither offered any revisions or other options, nor requested any change to accommodate its ultimate development plans, the court concluded that this claim is not yet ripe for litigation. We agree with this conclusion.

II. Law

The Fifth Amendment prevents the taking of private property for public use without just compensation and applies to the states through the Fourteenth Amendment. See U.S. Const. amend. V. & XIV; Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). Florida has its own “taking” provision in article X, section 6 of the Florida Constitution. A taking may result from a “physical invasion” of the property or may follow a “regulatory imposition.” Good v. United States, 189 F.3d 1355, 1360 (Fed.Cir.1999) (citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-16, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)); Keshbro, Inc. v. Miami, 801 So.2d 864, 869-70 (Fla.2001). “The general rule ... is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922). Whether the government has gone too far “depends on the particular facts.” Id. at 413.

ALI presented an as-applied challenge. “Any analysis in an as-applied regulatory taking claim must start with the threshold question of ripeness.... ” Riviera Beach v. Shillingburg, 659 So.2d 1174, 1180 (Fla. 4th DCA 1995) (noting that “Florida courts have ... adopted the ripeness requirement”). Ripeness presents a jurisdictional issue. See San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 633, 101 S.Ct. 1287, 67 L.Ed.2d 551 (1981). Ordinarily, a claim will not be ripe unless the claimant has made at least one “meaningful application.” MacDonald, Sommer & Frates v. Yolo Cnty., 477 U.S. 340, 352-53 & n. 8, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986); Palm Beach Polo, Inc. v. Vill. of Wellington, 918 So.2d 988, 994, 997 (Fla. 4th DCA 2006) (affirming that a “takings” claim was not ripe for adjudication, given the landowner’s failure to present a meaningful application for amendment of the comprehensive plan); Martin Cnty. v. Section 28 P’ship, Ltd., 676 So.2d 532, 537 (Fla. 4th DCA 1996) (on mot. for reh’g, clarification, and certification); Shillingburg, 659 So.2d at 1180; Glisson v. Alachua Cnty., 558 So.2d 1030, 1036 (Fla. 1st DCA 1990). The landowner must take “reasonable and necessary steps to allow regulatory agencies to exercise them full discretion in considering the development plans for the property, including the opportunity to grant any variances or waivers allowed by law.” Palazzolo, 533 U.S. at 620-21, 121 S.Ct. 2448. The corollary is that the ripeness doctrine does not require a landowner who alleges a regulatory partial taking to file a meaningless, futile application to the governmental agency. See Eide v. Sarasota Cnty., 908 F.2d 716, 726 (11th Cir.1990) (on pet. for reh’g) (describing the “futility exception” to the “final decision” requirement); Shillingburg, 659 So.2d at 1181; McCole v. Marathon, 36 So.3d 750, 754 (Fla. 3d DCA 2010).

Another component of ripeness is finality. In the seminal decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Court stated:

[ A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.

Id. at 186. This requirement of finality “applies to decisions about how a takings plaintiffs own land may be used,” and it reflects “the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer.” Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 738, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997); see Williamson Cnty., 473 U.S. at 190-91, 105 S.Ct. 3108. Williamson County and its progeny uphold “the important principle that a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation.” Palazzolo, 533 U.S. at 620, 121 S.Ct. 2448; see Greenbrier (Lake Cnty. Trust Co. No. 1391) v. United States, 40 Fed.Cl. 689, 702 & n. 12 (Fed.Cl.1998).

No bright-line test exists for determining how far the landowner must go in challenging the limits of allowable development under the regulations. See Williamson Cnty., 473 U.S. at 199, 105 S.Ct. 3108 (acknowledging that defining whether a regulation “goes too far” is a “difficult problem”). In Martin County v. Section 28 Partnership, Ltd., the Fourth District Court characterized the general law as follows:

It is a fair summary of the law that in “takings” eases involving permit denials and other land use restrictions, the landowner must meet the difficult burden of establishing that: (1) the regulation denies substantially all economically beneficial or productive use of the land; (2) alternative uses were applied for and conclusively denied by the regulatory body; and (3) at least one meaningful application has been filed under the existing regulations.

676 So.2d at 537; see MacDonald, Sommer & Frates, 477 U.S. at 349, 106 S.Ct. 2561; Williamson Cnty., 473 U.S. at 190-94, 105 S.Ct. 3108. As to the first requirement, the mere fact that the denial of a permit deprives a property owner of a particular use the owner deems most profitable or preferable does not demonstrate a taking. See Fox v. Treasure Coast Reg’l Planning Council, 442 So.2d 221, 226 (Fla. 1st DCA 1983); Fla. Game & Fresh Water Fish Comm’n v. Flotilla, Inc., 636 So.2d 761, 765 (Fla. 2d DCA 1994). In the case at bar, the “ripeness” inquiry relates especially to the second and third requirements listed in Martin County.

To satisfy the threshold ripeness test, ALI must demonstrate that Petition 76SUB was a meaningful application, that the City reached a final decision, and that the submission of an additional application for plat design approval would be meaningless and futile. With these legal principles in mind, we review de novo the trial court’s application of the law to the factual findings in determining that ALI’s claim is not yet legally ripe for consideration on the merits. See Lost Tree Vill. Corp. v. Vero Beach, 838 So.2d 561, 569 (Fla. 4th DCA 2002) (“[T]his court should review Lost Tree’s allegations de novo to determine whether it pled valid and ripe claims.”).

III. Analysis

ALI argues that the claim is ripe because a landowner is not required to submit more than one meaningful application. ALI contends that Petition 76SUB was a meaningful application, that the City made a final decision in denying the petition, and that any additional plat design application or revision would not change the City’s determination that a sanitary sewer line crossing the conservation area violates existing zoning regulations. Therefore, further applications would have been futile. The City asserts that Petition 76SUB was not a meaningful application under Riviera Beach v. Shillingburg and that ALI’s failure to seek alternatives impermissibly ignored the City’s overtures seeking a suitable resolution to the development of Phases Two and Three. The petition did not seek to challenge the validity of the zoning, to amend the terms of the zoning, or otherwise to seek relief from the zoning requirements. In other words, the denial of the petition is not a final decision.

Given the existing zoning regulations, ALI’s request to construct a sewer pipe through the conservation area and across the creek was bound to fail. The petition was not a meaningful application, for it denied the City an opportunity to exercise its full discretion in determining how ALI can implement the development plans for Phases Two and Three. See Palazzolo, 583 U.S. at 620-21, 121 S.Ct. 2448. ALI premised its proposal on a prohibited use in the conservation area that was self-imposed as a result of the negotiated settlement. The City is simply enforcing the terms of the landowner’s settlement agreement, which were incorporated into the Master Plan and the zoning regulations.

ALI took an inflexible, all-or-nothing approach in seeking approval of Petition 76SUB. The plat application presented no alternative design plan, nor did ALI seek to revise the application after the City’s vote. “Land use planning is not an all-or-nothing proposition.” MacDonald, Sommer & Frates, 477 U.S. at 347, 106 S.Ct. 2561 (noting that “[a] governmental entity is not required to permit a landowner to develop property to [the] full extent he might desire or be charged with an unconstitutional taking of the property”). Good faith and reasonableness are integral elements of any meaningful application. See Good v. United States, 39 Fed.Cl. 81, 102-03 (Fed.Cl.1997) (“By requiring developers to make a good faith effort to satisfy permitting agency concerns after an initial denial, ripeness doctrine reflects the reality that land development often involves a process of negotiation between the permitting agency and developer.”), aff'd, 189 F.3d at 1355. Rather than address any alternatives for achieving its ultimate residential development goals, ALI focuses unreasonably on the proposal to run the sewer pipe through the conservation area and across the creek. In construing the issue so narrowly, ALI effectively removes any discretion on the part of the City to consider other options for ALI to complete Phases Two and Three. The trial court found that the parties originally had discussed viable alternatives to running the sewer line through the conservation area, and that such alternatives were available, even if more costly. After the City’s denial of the petition, however, ALI immediately filed suit rather than propose any revisions or seek any changes.

The posture of this case is similar to the circumstances in Tinnerman v. Palm Beach County, 641 So.2d 523 (Fla. 4th DCA 1994), where the ripeness issue concerned whether the Palm Beach Board of County Commissioners’ (Board) resolution was a final decision. Id. at 525. The Board imposed a temporary moratorium on a building permit for the construction of a large office warehouse. Id. at 524-25. The landowners made no effort to ascertain whether an alternative development plan would have persuaded the Board to lift the moratorium; instead, the landowners filed a claim for inverse condemnation. Id. at 525.

Affirming the trial court’s conclusion that the claim was not yet ripe, the Fourth District Court recognized that the landowners had sought neither a modification nor a variance, even though the applicable regulations allowed many different uses as well as development levels. Id. at 525-27. The owners had requested a more intensive use of the parcel without seeking to obtain the Board’s approval of any less intensive use. Id. at 526. Like ALI, the landowners in Tinnerman argued it would have been futile to seek any other options. Id. Rejecting this argument as purely speculative, the appellate court recognized that ripeness requires “a firm delineation of permitted uses so that the extent of the taking can be analyzed.” Id. Citing the “meaningful application” requirement, the court also reasoned that the landowners had not allowed the regulatory agency to exercise its full discretion. The appellate panel pointed to the commissioners’ comments indicating that the Board may have been open to other uses of the property. Id.; see Palazzolo, 533 U.S. at 620-21, 121 S.Ct. 2448; Greenbrier, 40 Fed.Cl. at 702 & n. 12.

Similarly, the City Commission’s vote denying Petition 76SUB lacked the requisite finality to render this case ripe for review on the merits. As in Tinnerman, the question of what the City Commission would have done if ALI had proposed any alternatives remains open. At the City Commission hearing, a representative of the City (Ms. Massey) opined that what ALI was proposing in its plat design application is inconsistent with the land uses allowed in the Master Plan. To change it, ALI would have to submit a plan development amendment. Commissioner Lowe voiced similar concerns about whether the application is consistent with the Master Plan. Commissioner Donovan opined that ALI seemed to have developmental rights if it “would only develop a plan” acknowledging certain requirements. Donovan agreed with other commissioners to “give [ALI] a second chance.” Commissioner Henry expressed discomfort with completely voting down the plat application, suggesting instead that ALI consult with the City to determine what was needed “to make this work” and allow ALI to come back with a feasible plan. Commissioner Bryant urged ALI to continue working with the City in seeking to resolve the land-use issues. Mayor Hanrahan addressed possible redesign options upon the City’s disapproval of Petition 76SUB, so that ALI could return to the City for reconsideration without the usual, prolonged delays.

The clear message of a majority of the City’s ultimate land-use decision-makers was that they wanted to reach a mutually agreeable resolution of ALI’s ultimate development plans. It is also noteworthy that the developers of the Blues Creek subdivision have enjoyed a successful, long-term working relationship with the City. See Lost Tree Vill. Corp., 838 So.2d at 573 (recognizing the relevance of the working relationship between the landowner and the governmental entity in determining whether a decision is final and whether the submission of an additional application would be futile). Historically, the City Commission had granted final approval of every other Blues Creek plat approval petition (regarding other units and phases) that ALI submitted. Given these circumstances, the record belies ALI’s argument that the City’s vote on Petition 76SUB was a definitive, final decision on a meaningful application for purposes of the ripeness inquiry. See Tinnerman, 641 So.2d at 525 (“[T]he ripeness requirement of a final decision requires more than procedural finality because it includes an opportunity for government to change its mind.”). Additionally, where its options were not fully exercised, ALI has not demonstrated that the futility doctrine applies here. See McKee v. Tallahassee, 664 So.2d 333, 334 (Fla. 1st DCA 1995) (concluding that the city’s decision was not “final,” the futility doctrine did not apply, and the “taking” claim was not ripe, where the municipal board denied a variance from development restrictions, but city officials repeatedly assured the landowner that a properly drafted, meaningful application for a variance, with a required development plan, would receive a positive review).

ALI relies in part on Palazzolo v. Rhode Island, 533 U.S. at 606, 121 S.Ct. 2448 to support the argument that this claim is ripe. From the record, it is evident that the circumstances that led to the City Commission’s denial of ALI’s petition are significantly different from the situation in Palazzolo. In that case, the state’s unequivocal ruling that the regulations wholly prevented the development plans on environmentally sensitive land rendered that case ripe for review. Id. at 619-20. Palazzolo and associates owned Rhode Island waterfront property, a large portion of which comprised low-lying salt marshland subject to tidal flooding. Id. at bills. Attempting to develop the property, Palazzolo sought fill permits for approximately twenty acres because the moist ground and permeable soil would require substantial fill to accommodate the building of significant structures. Id. at 613-14. After the initial proposal failed, Palaz-zolo submitted two more proposals, one of which was a less ambitious plan to build a private beach club. The state denied these other proposals as well. Id. at 614. Years later, Palazzolo submitted a new plan that included the construction of a wooden bulkhead around a pond and the placement of fill throughout the remainder of the marshland. After the denial of that proposal, Palazzolo revived the plan for a private beach club, which the state denied. Id. at 614-15.

On certiorari, the United States Supreme Court noted that nothing in the record indicated that the state would have accepted the permit application had the proposed beach club occupied a smaller surface area, given the state’s interpretation of the governing regulations as barring Palazzolo from engaging in any filling or development activity whatsoever on the property. Id. at 620-21. As no additional application was needed to clarify the extent of development permitted by the wetlands regulations, Palazzolo had no further obligation to pursue his claim before the agency, and the issue was ripe for judicial review. Id. at 621-22; cf. Lucas, 505 U.S. at 1011-13 & n. 3, 112 S.Ct. 2886 (rejecting argument that the claim was not ripe and noting that the submission of a plan to develop the landowner’s property “would have been pointless,” given the regulatory council’s stipulation that no building permit would have been issued).

This is not the situation in the case before us. ALI wanted to develop the final residential stages of the Blues Creek subdivision on thirty-seven acres. The landowner acknowledged that the ninety-acre conservation parcel is the most environmentally sensitive area of the property. During the extended time period when ALI was working with the City to develop this final phase, the parties discussed viable alternatives to running a sanitary sewer pipe through the conservation area. In Palazzolo, however, the owners’ property was almost entirely salt marshland. No alternatives were available because Palaz-zolo’s multiple proposals would have required substantial fill on the protected land, a use that the state absolutely prohibited. In contrast, ALI’s ultimate goal is to build residences on acreage outside the environmentally protected conservation area. Because ALI pursued only one course and failed to address any other previously discussed options, the record supports the trial court’s determination that this case is not yet ripe for litigation. See Shillingburg, 659 So.2d at 1180.

Like the landowners in Tinnerman v. Palm Beach County, ALI has not given the City a meaningful opportunity to fully exercise its discretion. See MacDonald, Sommer & Frates, 477 U.S. at 342-43, 351-52, 106 S.Ct. 2561 (concluding that the property owner, who alleged a “taking” claim, had not met the finality requirement, even though the planning commission denied the landowner’s sole subdivision proposal and the county board of supervisors affirmed because the tentative subdivision map was inconsistent with the general county plan and with specific zoning regulations; the record held open “the possibility that some development [would] be permitted”); Williamson Cnty., 473 U.S. at 190, 193-94, 105 S.Ct. 3108 (concluding that the planning commission’s refusal to approve the preliminary plat was not a definitive final determination as to whether the landowner would be “denied all reasonable beneficial use of its property,” where the landowner failed to follow procedures for seeking a variance).

The parties agree that ALI had to submit at least one meaningful plat application and receive a clear, definitive final decision from the City before this claim would be ripe for judicial review. See Shillingburg, 659 So.2d at 1180. In its initial brief, ALI asks how this claim could not be ripe after the City Commission’s denial of the petition. The answer to this question lies in the record, as memorialized in the trial court’s unchallenged findings of fact. In Petition 76SUB, ALI unreasonably sought approval of a plat application that incorporated a previously negotiated prohibited use. The parties had discussed various alternatives, and the City had explained the procedures for seeking changes during their extensive, ongoing communications. The history of the parties’ dealings, and especially the transcript of the petition hearing, clearly demonstrate the City’s interest in continuing to work with ALI to explore alternatives and to attempt to resolve their differences so that ALI could realize its ultimate development goals. Despite the existence of other potential alternatives and the possibility of revising its application for plat design approval, ALI failed to give the City Commission a meaningful application that would afford the City an opportunity to fully exercise its discretion over the land-use issues presented. See Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 297, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (“The potential for such administrative solutions confirms the conclusion that the taking issue decided by the [trial court] simply is not ripe for judicial resolution.”); Lost Tree Vill. Corp., 838 So.2d at 571.

Because the facts and law support the trial court’s conclusion on ripeness, we AFFIRM the final judgment. Given our holding on this threshold jurisdictional issue, we do not address the trial court’s discussion of the merits of this case.

PADOVANO and MAKAR, JJ., concur.


author: POLEN, J.

text:
    JOEL M. WEISSMAN, P.A., Appellant, v. Hatem Ahmed ABOU-SAYED and Arghavan Gabriela Mostafavi, Appellees.
    No. 4D11-1524.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Rehearing Denied Feb. 6, 2013.

      Kristen A. Terry and Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellant.
    Jennifer S. Carroll of Law Offices of Jennifer S. Carroll, Palm Beach Gardens, for appellees.
   On Motions for Rehearing.

POLEN, J.

We deny appellant’s motion for rehearing and deny appellees’ motion for rehearing en banc. Further, we grant in part appellees’ motion for rehearing, withdraw our slip opinion dated December 5, 2012, and substitute the following in its place.

We affirm the trial court’s order denying the appellant’s Motion to Adjudicate its Charging Lien. An “essential prerequisite to imposition of a charging lien is that the underlying litigation produces a positive judgment or settlement — in other words, some ‘tangible fruits of the attorney’s service’ for the benefit of the client.” Walia v. Hodgson Russ LLP, 28 So.3d 987, 989 (Fla. 4th DCA 2010). Whether an attorney’s services produced “tangible fruits” is an issue of proof. Richman, Greer, Weil, Brumbaugh, Mirabito, & Christensen, P.A. v. Chernak, 991 So.2d 875, 879 (Fla. 4th DCA 2008). Excluding those accounts that are protected from creditors’ liens by operation of statute, see §§ 222.21 & 222.14, Fla. Stat. (2010), the record supports the trial court’s finding that Mr. Weissman’s labor produced only valueless assets, thus leaving no “tangible fruits” to which a charging lien may attach. Accordingly, we affirm.

Affirmed.

CONNER, J., and McMANUS, F. SHIELDS, Associate Judge, concur.

      . The trial court found that the marital home was “upside down." Because the trial court determined that more was owed on the home than what the home was actually worth, the home has a negative value. Therefore, we find that the trial court did not err by determining that the marital home was not a positive result of the litigation on which a charging lien may attach.


author: SAWAYA, J.

text:
    Rhoni Barton BISCHOFF, Appellant/Cross-Appellee, v. Robert WALKER, Deborah Parrish, et al., Appellee/Cross-Appellant.
    No. 5D11-2194.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.
    Stacy J. Ford and Eric Boughman, of Pohl & Short, P.A., Winter Park, for Appellant/Cross Appellee.
    Margaret A. Wharton, of Wharton Law Group, P.A., Oviedo, for Appellee/Cross Appellant.
   ON MOTION FOR REHEARING

SAWAYA, J.

Appellee has filed a motion for rehearing stating that he “does not contest the court’s analysis with respect to the canal.” He does contend, however, that summary judgment in Bischoffs favor regarding the land underlying the pertinent part of the lake bordering her property is inappropriate because material issues of fact and law exist that are not yet resolved. After further review, we conclude that material issues of fact and law exist regarding Bis-choffs claim in Count II of her second amended complaint concerning her ownership of the lands under the pertinent part of the lake. We therefore grant Appellee’s motion for rehearing, withdraw our previously issued opinion, and substitute the following.

This case involves a dispute between two adjoining property owners, Rhoni Barton Bischoff and Robert Walker, regarding ownership of the land underlying a canal and part of a lake that both owners agree are natural and non-navigable bodies of water. Part of the lake borders both properties to the south. The canal that provides access to the lake divides the two properties. This dispute made its way to the trial court via a three-count complaint filed by Bischoff against Walker seeking: in Count I, a declaratory judgment that she had riparian rights to the lake and canal; in Count II, to quiet title to the boundary between the two properties; and in Count III, a declaration that the property description in her deed, which used monuments (the lake and canal) rather than metes and bounds to describe the property she purchased, be reformed to expressly identify her ownership to the centerline of the canal and to part of the lake. The trial court granted summary judgment in favor of Bischoff as to Count I. Bischoff appeals the Summary Final Judgment entered against her on Counts II and III of her complaint, contending that the trial court erred in holding that she has no ownership interest underlying the canal and lake that borders her land. We reverse the summary judgment under review as to Counts II and III and remand this case to the trial court to enter summary judgment in favor of Bischoff on Count II regarding the submerged land to the centerline of the canal and for further proceedings as to Bischoffs claim in Count II regarding the land underlying the part of the lake that borders her property. The remainder of this opinion will only address the issue relating to Bischoffs ownership of the submerged land to the center of the canal.

The dispute stems from the language used in Bischoffs deed, which she received when she purchased the property in February 2000. It describes the land she purchased as follows:

That part of the Northeast 1/4 of the Southeast 1/4 of Section 8, Township 22 South, Range 32 East, Orange County, Florida lying East of Canal and North of Lake, LESS the East 100 feet and LESS the North 30 feet thereof for road right-of-way.

(Emphasis added). Bischoff argues that because the deed describes her western boundary by reference to a monument, i.e., the canal, as opposed to a metes and bounds description, the case law holding that ownership extends to the centerline of a monument is applicable and she thus owns the submerged land to the center of the canal.

Walker, on the other hand, takes the position that Bischoffs deed gave her the land east of the canal. She did not receive the land under the waters to the halfway point of the canal because the deed only gave her to the edge of the canal and nothing more. He claims that he owns all the land under the canal, at least insofar as the canal separates their two properties, and he is opposed to Bischoffs plan to build a dock, deck, and boathouse on his property.

Walker purchased his property from the common grantor several months after Bis-choff purchased her land. His property lies to the west of Bischoffs land and is separated therefrom by the canal. His deed described his purchase:

The East 1/2 of the Southeast 1/4 of the Southeast 1/4 of Section 8, Township 22 South, Range 21 East, Orange County, Florida LESS that part of NE 1/4 of the SE 1/4 of the SE 1/4 lying East of Canal and North of Lake and Less the East 100 feet thereof and Less N. 30 feet for road right-of-way and LESS Beginning 358.24 feet West and 30 feet South of the Northeast corner of the Southeast 1/4 of the Southeast 1/4; run South 36° East 244.65 feet; West 295.06 feet; North 197.00 feet; East 150 feet to the point of Beginning, Section 8, Township 22 South, Range 32 East, Orange County, Florida.

(Emphasis added). In other words, Walker’s deed describes his parcel of land and excludes from this grant the land already deeded to Bischoff. Thus, if Bischoffs deed gave her ownership to the centerline of the canal, then Walker owns the land under the waters from the centerline back to his own property, but if Bischoffs deed gave her the land only up to the edge of the canal, then Walker owns all of the land under the canal separating their properties.

The facts leading up to the suit Bischoff filed are not in dispute. There was a dilapidated dock extending into the canal from Bischoffs side of the canal when she purchased her land. She was assured by the sellers and real estate agent that this was her dock. This was important to her because she is a professional water skier and wanted to use the lake as a practice area.

In 2002, Bischoff applied for a permit from Orange County to build a dock, deck, and boathouse into the lake. Walker made known to the authorities his objection to the proposed dock being built on his land and provided surveys performed by a state-certified surveyor. The Environmental Protection Division (EPD) of the County denied Bischoff permission unless she could establish her ownership of the submerged land. The EPD wanted an official, signed and sealed survey with full legal description provided by a certified survey contractor showing her ownership of the land on which she wanted to build the dock. The letter advised that if the EPD did not receive this information within 30 days, the application would be considered expired.

Bischoff abandoned her plans for the lake and turned her attention to obtaining a permit to replace the existing dock in the canal. The County originally gave her permission, but rescinded it pending resolution of Walker’s challenge to her ownership claim. To settle the dispute as to the ownership of the land under the pertinent portion of the canal, Bischoff filed suit.

Both parties moved for summary judgment, and the trial court rendered the Summary Final Judgment that we now review, concluding that as to Count I, “Plaintiff has riparian rights and those rights include the right to build a dock to wharf out to the water. The construction of the dock is subject to approval of local government authorities as to location, size, and use.” However, as to Counts II and III, the trial court rejected Bischoff s contention that she owns to the center of the canal by concluding that Walker was the owner of the pertinent land underlying the body of water.

Bischoff argues that the trial court erred in holding that the boundary line at issue was not the centerline of the monument referenced in her deed. Bischoff is correct that by using “east of canal” the grantor was conveying by reference to a natural monument. A “monument,” when used in describing land, is defined in section 472.005(11), Florida Statutes (2011), as meaning

an artificial or natural object that is permanent or semipermanent and used or presumed to occupy any real property corner, any point on a boundary line, or any reference point or other point to be used for horizontal or vertical control.

Here, the canal is a natural monument and, as both parties agree, a non-navigable body of water. The question is whether “east of’ includes to . the center of the canal. The presumption is that ownership extends to the centerline of a monument unless a contrary intent is clearly expressed:

[ I]n all rivers, streams, or other watercourses deemed to be nonnavigable, the presumption is that the boundary line between owners of lands bordering on the watercourses is in the middle thread of the watercourse. When such lands are conveyed with the stream or watercourse described as a boundary, there is a presumption that the grantor intends that the boundary of the lands of the grantee should extend to the middle of such stream or watercourse. An intent that the soil in the river should be owned by a person who does not own the abutting upland is so improbable that it will never be presumed in the absence of an express exception in the grant.

12 Am. Jur. 2d Boundaries § 17 (2012) (footnotes omitted); see also 1 Joyce Palomar, Patton and Palomar on Land Titles § 127 (3d ed.) (“The boundary lines may themselves be imaginary or they may be marked by a fence, wall, highway, stream, or like natural or artificial line. These latter are also termed monuments. If thus marked, the centerline of the monument, in the absence of statement to the contrary, is taken as the boundary.”); see generally George A. Locke, Annotation, Deeds: Description Of Land Conveyed By Reference to River or Stream as Carrying to Thread or Center or Only to Bank Thereof—Modern Status, 78 A.L.R.3d 604 (2012) (hereafter “Locke”); 4 Herbert Tiffany and Basil Jones, Tiffany Real Property § 995 (2012 ed.) (“The question now arises as to when, in case of land under water not belonging to the state, a conveyance of land as abutting on the water will be construed as including such land under the water as belongs to the grantor. The general rule of construction of a conveyance of land bounded by water is that, unless a contrary intention appears, it passes the soil towards the center of the water as far as the grantor owns.”). Patton and Palomar explains the widespread nature of this principle and the reason therefor:

All states follow the English rule that lands bounded by nonnavigable rivers and streams carry the title of the bed of the water course to the center thereof. A grantee will, of course, receive all of the title of the grantor unless a contrary intention is clearly shown. This is consistent with the ordinary rule that a call to a monument carries to the middle of the monument and prevents the wasteful creation of strips of property that would be of little value to the holder thereof but would greatly impair the value of the upland tract.

Patton and Palomar, at § 134 (footnotes omitted).

Adverting to Florida case law, unless a contrary intent is clearly expressed by the grantor, a presumption arises that the boundary line “when the land is bounded by a nonnavigable stream or highway, extends to the center of such stream or highway, if the grantor is the owner of the fee.’ ” Smith v. Horn, 70 Fla. 484, 70 So. 435, 436 (1915) (quoting 2 Devlin on Deeds § 1024 (3d ed.)). The supreme court also quoted language from Devlin stating that if the deed described the land conveyed as extending to a street and then running at right angles along the street, “the fee of the land to the center of the street is conveyed....’” Id. This rule, the court observed, “must be applied to carry out, and not to frustrate the intention of the parties.” Id.; see also Brooks v. City of W. Miami, 41 So.2d 556, 557 (Fla.1949) (holding that “[bjounded ... on the East by [the road]” included to the centerline of the road and that absent any controlling authority to the contrary, “the same rule obtained which applied to boundaries on nonnavigable streams and that the center of the highway became the boundary line” (citing In re Reed’s Petition, 13 N.H. 381 (N.H. 1843))); cf. Bd. of Trs. of Internal Improvement Trust Fund v. Walker Ranch Gen. P’ship, 496 So.2d 153 (Fla. 5th DCA 1986) (observing that had legislative intent not controlled, “[a]n argument can be made in support of the trial court’s finding based on the general surveying principle that the centerline of the monument (here, the shore) is regarded as the boundary line” (citing 1 Fla. Jur. 2d, Adjoining Landowners § 19)), review denied, 504 So.2d 766 (Fla.1987). The principle has been referred to as a presumption that may be rebutted by proof to the contrary. Jacksonville, T. & K.W. Ry. v. Lockwood, 33 Fla. 573, 15 So. 327, 329 (1894) (writing of a controversy involving the boundary line of land, that “the presumption arising from the deed from [the grantor], conveying the land, and bounding it on the east by Thompson street, is, in the absence of proof to the contrary, that [the grantor] owned to the center of the street” and thus conveyed to plaintiff the lands to the center of the street). Indeed, the authorities are replete with citations to case law holding that reference to a monument is presumed to run to the center of the monument. See, e.g., Locke; Jay M. Zitter, Annotation, Conveyance with Reference to Tree or Similar Monument as Giving Title to Center Thereof, 61 A.L.R. 5th 739 (2012). Accordingly, the conveyance in Bischoff s deed by reference to the monument of the canal creates the presumption that the boundary ran to the centerline thereof.

Similar to the Florida courts, the courts in other jurisdictions have adopted the centerline presumption. In the analogous case of Henry v. Borushko, 281 P.3d 729 (Wyo.2012), the Wyoming Supreme. Court recently upheld the conclusion that the boundary ran to the center of a canal where the deed conveyed land “lying North of Midvale Irrigation District Pavil-lion Main Lateral.” As in the instant case, the adjoining landowners disputed ownership of the land lying under the canal’s waters; one claimed to the opposing bank, as does Walker, and the other claimed to the centerline of the canal, as does Bis-choff. The supreme court reasoned:

Because the canal shared pertinent attributes with non-navigable streams and streets, the district court relied on this legal guidance for use in interpreting deeds:
In the case of non-navigable watercourses and roads and streets as boundary calls in legal descriptions, the general rule is there is a rebutta-ble presumption that where a non-navigable stream or a street or road is the boundary between two parcels, the actual boundary is along the thread of the stream or the middle of the street. Wilson v. Lucerne Canal and Power Co., 150 P.3d 653, 665 (Wyo.2007). 12 Am. Jur. Boundaries, § 17, § 29. The same rules of construction hold true with common walls. Coumas v. Transcontinental Garage [68 Wyo. 99], 230 P.2d 748, 753 (Wyo.1951).
Applying'this presumption, the district court concluded that the deed should be interpreted as establishing the property boundary at the centerline of the canal. It further determined that the evidence presented by the Henrys “fails to rebut the presumption” that the boundary was at the center of the canal.
The Henrys’ first argument is that the deed does not explicitly state that the boundary is at the “center” of the canal. That is true, but it is also true that the deed does not explicitly state that the boundary is on the “north bank” of the canal or “along the fence north of the canal.” Because no particular part of the canal is expressly designated as the boundary, the district court was correct in employing the presumption that the center of the canal was intended. As we explained in Glover v. Giraldo, 824 P.2d 552, 554-55 (Wyo.1992):
Where a deed describes land bounded by a non-navigable stream and names the stream as- a monument, a presumption exists that the grant extends to the center and the thread of the stream is the true boundary. The grant will give title so far as the grantor owns, unless the bed of the stream is expressly reserved from the grant. This rule is based on a presumption of the grantor’s intent.

Id. at 731-32. Consequently, the language “lying north” of the monument was held to include to the centerline of that monument. Accord Carter Oil Co. v. Delworth, 120 F.2d 589, 590 (7th Cir.1941) (“By his deed to Gerald Weaber, therefore, Louis Wea-ber, in the language, ‘all the land north of the creek and all of the land south of the creek,’ included title in each instance to the center of the creek, unless there is in the record evidence to establish a different intention.”); Council v. Clark, 246 Ark. 1110, 441 S.W.2d 472, 473-74 (1969) (holding that under deed description “lying South of Hurricane Creek,” title extended to the middle of Hurricane Creek (citing Gill v. Hedgecock, 207 Ark. 1079, 184 S.W.2d 262 (1944) (holding that a grant “north of’ a body of water conveyed title to the middle of the water))); Helmer v. Castle, 109 Ill. 664 (Ill.1884) (holding that conveyance of land described as “east half of the southeast quarter, south of road” meant the tract of land on the south side of the road, extending to the centerline of the road); W. Elec. Co. v. Jersey Shore Realty Co., 93 N.J. Eq. 587, 117 A. 398, 400 (1922) (holding that “in the absence of an expressed contrary intent, it is the rule that a conveyance of land bounded upon a stream, above tidewater, carries the title of the grantee to the center of the stream if the title of the grantor extends that far”); Knapp v. Hughes, 19 N.Y.3d 672, 957 N.Y.S.2d 640, 981 N.E.2d 236, 2012 WL 4933274 (2012) (holding that language in deed stating the property line ran “along the southerly bounds of Perch Pond” also conveyed the rights to the land under the water; observing, “It has long been established New York law that a conveyance of land on a pond or stream includes the land under the pond or stream, to the center of the water, unless a contrary intention is made clear.”). See generally Annotation, Specific Description with Reference to Water, in Conveyance of Riparian Land, as Marking the Extent of Grantee’s Ownership of the Submerged Land and the Shore, Part II “Presumption as to Extent of Grant of Land Bounded Generally by a Body of Non-navigable Water,” 74 A.L.R. 597 (1931).

Thus, Florida law is in accord with the general rule adopted by the courts in other jurisdictions that there is a rebuttable presumption in favor of finding the boundary is the centerline of the monument referenced in the deed — here, the canal. To rebut the presumption, Walker would have had to present evidence of the grantor’s intent not to convey to the centerline of the canal. He did not. In fact, he does not acknowledge the presumption. Instead, Walker’s position on appeal is that summary judgment was proper because there were no facts at issue, and he argues on appeal that no extrinsic evidence should be considered in deciding what the deed meant. In the absence of evidence rebutting the presumption, summary judgment in favor of Bischoff was appropriate.

In summary, we affirm the trial court’s summary judgment in Bischoffs favor on Count I that Bischoff has riparian rights to the waters of both the canal and lake. We reverse the summary judgment in favor of Walker on Counts II and III. In accordance with the relief Bischoff requests in Count II, we remand this case for entry of summary judgment in her favor that she owns the submerged land to the centerline of the canal. We remand for further proceedings insofar as Count II also raises an issue regarding the ownership of the pertinent submerged lake land, which issue, we acknowledge, the parties may opt not to pursue given that the resolution of Count I granting Bischoff riparian rights to the lake may fully resolve the parties’ dispute. We believe it is unnecessary to grant Bischoff the relief she requests in Count III.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, C.J., and PALMER, J„ concur.

      . Walker has cross-appealed, arguing that the court erred in entering summary judgment in favor of Bischoff on Count I of her complaint. We affirm the summary judgment in favor of Bischoff regarding Count I and conclude that our holding regarding Bischoffs ownership to the land under the canal renders the issues raised in Walker’s cross-appeal regarding the canal moot.

      . Title to lands under navigable water is held by the State pursuant to article X, section 11, of the Florida Constitution.

      . Walker asserts that no out-of-state case law is relevant on the issue of boundary lines and deed language, citing Macnamara v. Kissimmee River Valley Sportsmans’ Ass’n, 648 So.2d 155, 159 (Fla. 2d DCA 1994) (involving ownership of lands created by meandering navigable waterways), review denied, 651 So.2d 1195 (Fla.1995). He is wrong. Not only does the instant case involve non-navigable waters, which excerpts the case from many Florida-unique issues (and from Macnamara), out-of-state case law demonstrating how various courts have interpreted identical language aids this court's understanding and analysis of the presumption that the centerline of a monument is the proper boundary line.