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STATEMENT OF THE FACTS

Public records confirm that Busse owns a lot in a platted subdivision located

in Lee County. This lot (50' x 130') abuts a platted 60 foot wide street. At some point

westward of the street is the Gulf of Mexico Since the subdivision was platted in

1912, considerable accretion has occurred on land bordering the Gulf of Mexico

westward of Busse’s lot. Appellant claims riparian rights. Lee County has claimed

said accreted lands for public park purposes.

4
CASE NO. 08-13170-B
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ATLANTA, GEORGIA

JORG BUSSE,

Plaintiff-Appellant,

v.

LEE COUNTY, FLORIDA; BOARD OF LEE


COUNTY COMMISSIONERS; LEE COUNTY
PROPERTY APPRAISER; STATE OF FLORIDA
BOARD OF TRUSTEES OF THE INTERNAL
IMPROVEMENT FUND, STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,

Defendants-Appellees.
__________________________________/
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT COURT OF FLORIDA, FORT MYERS DIVISION
_________________________________________________________________
ANSWER BRIEF OF DEFENDANT-APPELLEE,
LEE COUNTY, FLORIDA and BOARD of LEE
COUNTY COMMISSIONERS

DAVID M. OWEN
LEE COUNTY ATTORNEY
2115 Second Street
Post Office Box 398
Fort Myers, Florida 33902
(239) 533-2236
(239) 485-2118 FAX

JACK N. PETERSON
Assistant County Attorney
TABLE OF CONTENTS

Page

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2


1. Nature of the Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Disposition Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. The District Court properly dismissed the complaint for lack of
federal subject matter jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

i
TABLE OF CITATIONS

CASES PAGE

Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1329 (11th Cir. 2006) . . . . . . . . . . . 7

Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . 5, 7

L.A. Draper v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428 (1984) . . . . . . . . . . . 8

Mobil Oil Corp. v. Coastal Petroleum Co., 671 F.2d 419, 422 (11th Cir. 1982) . . 7

Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004) . . . . . . . . . . . 8

U.S. v. 16.33 Acres of Land in Dade County, State of Florida, 551 F.2d 678, 679
(11th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Williamson County Regional Planning Com’n v. Hamilton Bank, 473 U.S. 172,
195 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

STATUTES

28 U.S.C. §1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Florida Rules of Appellate Procedures

Fed. R. App. P. 32(a)(7)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

RULES

Eleventh Cir. R. 28-1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

ii
BUSSE V. LEE COUNTY, et al. Docket No. 08-13170-B

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record, pursuant to Eleventh Cir. R. 28-1(b),

certifies that the following persons have an interest in the outcome of this appeal:

1. Jorg Busse, Appellant;

2. The State of Florida, Appellee;

3. L. Kathryn Funchess, attorney for Appellee, State of Florida;

4. Sherri L. Johnson, attorney for Appellee, Lee County Property Appraiser;

5. Lee County, Florida, Appellee;

6. Jack N. Peterson, attorney for Appellee, Lee County;

7. Honorable Sheri Polster-Chappell, Magistrate Judge;

8. Reagan K. Russell, attorney for Appellee, State of Florida;

9. Honorable John E. Steele, United States District Judge;

10. Kenneth M. Wilkinson, Appellee, Lee County Property Appraiser.

iii
BUSSE V. LEE COUNTY, et al. Docket No. 08-13170-B

STATEMENT OF JURISDICTION

Jurisdiction of this cause is vested in the United States Court of Appeals

pursuant to 28 U.S.C. §1291, review being sought of a final decision of the United

States District Court for the Middle District of Florida.

iv
STATEMENT REGARDING ORAL ARGUMENT

The issues before the Court are neither complex nor unique. The facts are

adequately before the Court in the record. Legal argument is sufficiently presented

in the appellees’ briefs. Oral argument will not benefit the Court and serve only to

increase the costs of appeal to the appellees.

v
STATEMENT OF THE ISSUES

Judge Steele did not abuse the Court’s discretion by dismissing Busse’s Third

Amended Complaint for lack of subject matter jurisdiction. Other issues raised in

Busse’s initial brief are too disjointed and disconsonant to permit reply.

1
STATEMENT OF THE CASE

1. Nature of the Suit

Appellant Busse claims to own and public records confirm his ownership of a

50' x 130' lot bordering a platted 60' street on a barrier island in Lee County named

Cayo Costa. Busse claims riparian rights. The State, the County and the Property

Appraiser deny his claim of riparian rights.

2. Course of Proceedings

Busse’s various attempts to frame a complaint (Dkt. Nos. 1, 25, 102, 282,

288) were dismissed by the Court (Dkt. Nos. 87, 267, 338). Between these events,

Busse, in what can only be termed as vexatiously, filed a barrage of “motions” (e.g.

Dkt. No. 65: “emergency motion for criminal prosecution of defendants’ lawyers”;

Dkt. No. 68: “plaintiff’s motion for emergency hearing on the issue of defendants’

1969 bogus resolution”; Dkt. No. 70:, inter alia, “motion to restrain defendants...from

use of deadly weapons in the private Cayo Costa subdivision”) and other pleadings

variously termed “notices” (e.g. Dkt.Nos. 48, 62, 63, 92, 221), “responses”,

“exhibits”, “evidence”, “interrogatories”, “affidavits”, “memorandums”, etc. The

docket below stands res ipsa loquitur.

Busse, apparently as a litigation tactic, also filed formal complaints with the

2
Florida Bar Association against Appellees’ lawyers (Dkt. Nos. 194, 197, 201, 204,

205, 236, 272, 275, 306). Appellant also filed complaints with the Florida

Commission on Ethics against Counsel (Dkt. Nos. 278, 279). Busse was sanctioned

by the Court (Dkt. Nos. 242, 252, 280) and thereafter, was directed to seek leave of

Court prior to filing any pleading. Busse was also directed to desist “the continual

flood of irrelevant, immaterial and unwarranted emails” to the defendants and their

employees (Dkt. No. 261).

3. Disposition Below.

The District Court thereupon granted the State of Florida’s motion to dismiss

for lack of jurisdiction (Dkt. No. 291) and Lee County’s motion to dismiss (Dkt. No.

304) at Dkt. No. 338.

This appeal followed.

3
STATEMENT OF THE FACTS

Public records confirm that Busse owns a lot in a platted subdivision located

in Lee County. This lot (50' x 130') abuts a platted 60 foot wide street. At some point

westward of the street is the Gulf of Mexico Since the subdivision was platted in

1912, considerable accretion has occurred on land bordering the Gulf of Mexico

westward of Busse’s lot. Appellant claims riparian rights. Lee County has claimed

said accreted lands for public park purposes.

4
STANDARD OF REVIEW

Judge Steele’s granting the State, County and Property Appraisers’ motions to

dismiss Busse’s Third Amended Complaint is subject to appellate review de novo.

Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).

5
SUMMARY OF ARGUMENT

The District Court, Judge Steele, correctly dismissed Busse’s Third Amended

Complaint. The Court, after an exhaustive review of Busse’s claims and noting that

being pro se, the claims would be liberally construed, properly found no federal

subject matter jurisdiction. Lacking federal subject matter jurisdiction, the Court

properly declined to exercise supplemental jurisdiction over any state law claims

which may exist.

6
ARGUMENT

1. The District Court properly dismissed the complaint for lack of federal subject
matter jurisdiction.

In an apparent attempt to enhance the value of his real property, Busse seems

to claim that riparian rights apply to his lot. Questions relating to ownership of real

property sound in state law. See, U.S. v. 16.33 Acres of Land in Dade County, State

of Florida, 551 F.2d 678, 679 (11th Cir. 1977). To maintain a case in federal court,

a plaintiff must allege as an essential element of his claim that a federally created

right or immunity has been impugned. Mobil Oil Corp. v. Coastal Petroleum Co.,

671 F.2d 419, 422 (11th Cir. 1982). Busse failed to articulate any such federal

interest.

Prior to dismissing the Third Amended Complaint and after spending “an

inordinate amount of time” analyzing Busse’s Amended Complaint (Dkt. No. 25),

Judge Steele instructed Busse to provide “a short, plain statement” regarding his

claims. (Dkt. No. 87). A district court on a motion to dismiss is generally limited to

reviewing the complaint’s “four corners.” Bickley v. Caremark RX, Inc., 461 F.3d

1325, 1329 (11th Cir. 2006). A reviewing court must construe the allegations of the

complaint in the light most favorable to the plaintiff. Hill v. White at 1335. After

what can only be called another exhaustive analysis of Busse’s third attempt to state

7
a claim, the Court properly dismissed the case (Dkt. No. 338). The District Court did

find that Busse “adequately” alleges a taking of property. (Id.) However, Judge

Steele goes on to opine that a taking alone cannot grant federal jurisdiction and

remains subject to procedures for compensation through the State. Id. Not having

alleged any pursuit of state claims in state courts, Busse’s claim is not ripe for federal

jurisdiction. Williamson County Regional Planning Com’n v. Hamilton Bank, 473

U.S. 172, 195 (1985).

In Busse’s various complaints below and throughout his “initial brief” filed

before this Court, Busse chooses words and phrases such as “land grab” (p. 27);

“trespasses” (p. 28)’ “confiscation” (p. 29)’ and “misrepresentation” (p. 32), with

many terms highlighted and bolded for effect. Judge Steele correctly recognizes these

complaints as, if anything, sounding in tort and subject to state law (Dkt. No. 338)

over which he declined to assert supplemental jurisdiction. Id. (citing Raney v.

Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004)). Indeed, if all federal

claims are dismissed, the District Courts are “strongly” encouraged or even required

to dismiss state claims. L.A. Draper v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428

(1984). Having applied the correct law to the facts, Judge Steele correctly dismissed

the case.

8
CONCLUSION

The District Court correctly and properly dismissed this case. Prior to doing

so, Judge Steele accorded Busse every opportunity to conform his pleadings to a

recognizable form. Upon Busse’s failure to do so, the Court applied the relevant law

and dismissed the case.

The District Court’s Order (Dkt. No. 338) should be sustained.

9
CERTIFICATE OF COMPLIANCE RULE 32(a)

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 1,377 words, excluding the parts of the brief

exempted by Fed.R.App.P. 32(a)(7)(B)(iii). This brief has been prepared in a

proportionally spaced typeface using WordPerfect 10 font size 14Times New Roman.

By:________________________
JACK N. PETERSON
Attorney for Appellee Lee County

Dated: ____________

10
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August ____, 2008, I sent two true and correct

copies of the foregoing to: Jorg Busse, Post Office Box 1126, Naples, FL 34106-

1126; and one copy each to the following: Harold G. Vielhauer, Esq., L. Kathryn

Funchess, Esq. and Reagan K. Russell, Esq., Florida Department of Environmental

Protection, 3900 Commonwealth Blvd., M.S. 35, Tallahassee, FL 32399 and Sherri

L. Johnson, Dent & Johnson, Chartered, 3415 Magic Oak Lane, Post Office Box

3259, Sarasota, FL 34230.

DAVID M. OWEN
LEE COUNT ATTORNEY
2115 SECOND STREET
POST OFFICE BOX 398
FORT MYERS, FLORIDA 33902
(239) 533-2236

By:________________________
JACK N. PETERSON
Assistant County Attorney
Florida Bar No. 0832774

11
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BERTHA K. SMITH v. C. L. HORN (12/10/15)

SUPREME COURT OF FLORIDA

Docket Number available at www.versuslaw.com


Citation Number available at www.versuslaw.com

December 10, 1915

BERTHA K. SMITH, PLAINTIFF IN ERROR,


v.
C. L. HORN, DEFENDANT IN ERROR

Writ of Error to Circuit Court, Volusia County, Jas. W. Perkins, Judge.

F. W. Pope, for Plaintiff in Error;

Landis, Fish & Hull and H. A. Horn, for Defendant in Error.

Whitfield, J., Taylor, C. J., and Shackleford and Ellis, J. J., concur; Cockrell, J., absent on account of illness

Author: Whitfield

WHITFIELD, J. -- In an action of ejectment there was judgment for the defendant, and the plaintiff took writ of error. It appears by
an agreed statement of facts that the plaintiff Bertha K. Smith is the heir of John W. Smith, deceased; that said John W. Smith was
the original owner of property which he had surveyed, mapped and platted as "Memento" and filed the plat with the Clerk of the
Circuit Court; that property in controversy is a part of "Memento," being the part shown on the map as "Cemetery Street," lying
between Seabreeze Avenue and Duke Street, and between Blocks 14 and 19 of "Memento" as platted; that from the time of making
and filing said map of "Memento" until the commencement of this suit, the property described in plaintiff's declaration has never
been used as a street, highway or passageway by the public or any persons; that the town has never taken any steps toward
clearing, grading or in any manner improving the said street for street purposes or any other public purposes; that however the
property up until the time of the vacation of the same was not fenced nor claimed by any person as against the easement of the
public; that neither the plaintiff, nor her father, John W. Smith, have owned any property on either side of the land described in
plaintiff's declaration since July 18th, 1902; that the defendant claims title to the said land in which he is in possession, as an
abutting owner of a part and as a purchaser of the balance, through the following chain of title; that on February 10th, 1885, John
W. Smith secured a patent to lots 3 and 4, section 5, township 15 south, range 33 east, the property described in plaintiff's
declaration being a part thereof; that in August, 1884, John W. Smith had such property surveyed, mapped and platted and called it
the town of Memento, dividing it into lots and blocks and separating the blocks by streets and giving the streets names. The land
described in plaintiff's declaration being the street as shown on said map as lying between blocks fourteen and nineteen and
between Seabreeze Avenue and Duke Street; that on February 14th, 1890, John W. Smith, joined by his wife, conveyed by
warranty deed to W. A. Glover, all of block nineteen of Memento, according to the map of Memento, on record; that on April 5th,
1895, W. A. Glover, joined by his wife, conveyed by warranty deed to C. C. Post all of block nineteen of Memento, according to the
map of Memento on record; that on May 13th, 1903, C. C. Post, joined by his wife, conveyed by warranty deed to C. L. Horn, all of
block nineteen of Memento, according to the map of Memento on record; that C. L. Horn, the defendant, is still the owner of the
west five feet of the southerly one hundred and ten feet of block nineteen of Memento, this strip of land lying next to and abutting
that part of the lands described in plaintiff's declaration which defendant claims as an abutting owner, claiming to the center of the
said street; that on July 18th, 1902, Bertha K. Smith, plaintiff herein, joined by her husband, by warranty deed, conveyed to the
Pinewood Cemetery Association all of block fourteen, Memento, excepting such lots or parts of lots as they had previously
conveyed, such property having come to her as heir of John W. Smith, deceased; that on September 28th, 1912, the Pinewood
Cemetery Association conveyed to C. L. Horn, the defendant herein, a strip of land ten feet wide and one hundred and ten feet
long, being the east ten feet of the southerly one hundred and ten feet of the west one-half of the land described in plaintiff's
declaration, the Cemetery Association claiming title thereto as an abutting owner of said vacated street; that in the early part of the
year 1905, the town of Daytona Beach, Florida, was incorporated under the general incorporation laws of the State of Florida; that
the town council of the town of Daytona Beach, Florida, authorized D. D. Rogers, C.E., to make a map of the incorporated town of
Daytona Beach; that a map of the said town of Daytona Beach was so made and placed on record in the office of the clerk of the
Circuit Court of Volusia county, Florida, on January 8th, 1906, a certified copy of said map being hereto attached and marked
"Exhibit B"; that on the map of the incorporation of the town of Daytona Beach, Florida, above referred to, the property described in

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plaintiff's declaration is described thereon as "Hollywood Street:" that on the 28th day of February, 1910, the town council of the
town of Daytona Beach, Florida, passed an ordinance vacating as a street the property described in plaintiff's declaration, which
said street is and was within the incorporated limits of the town of Daytona Beach, Florida; that on May 9th 1914, the heirs of John
W. Smith, by their attorney, F. W. Pope, sent a communication to the mayor of the town of Daytona Beach, Florida, notifying him that
the heirs of John W. Smith, deceased, thereby withdrew any dedication or intended dedication to the land described in plaintiff's
declaration.

For the plaintiff in error it is contended that since it is expressly stipulated "that from the time of making and filing said map of
'Memento' until the commencement of this suit, the property described in plaintiff's declaration has never been used as a street,
highway or passageway by the public or any persons; that the town has never taken any steps toward clearing, grading or in any
manner improving the said street for street purposes or any other public purposes; that, however, the property up until the time of
the vacation of the same was not fenced nor claimed by any person as against the easement of the public," the title to the space
designated as a street on the map remained in the dedicator and consequently the judgment should have been for the plaintiff.
This contention would have force in determining the rights of the parties if it were not also expressly stipulated that the dedicator
subsequently conveyed block 19 of "Memento" "according to the map of Memento on record"; and that the dedicator's sole heir
conveyed "all of block fourteen. Memento, excepting such lots or parts of lots as had been previously conveyed, such property
having come to her as heir of John W. Smith, deceased."

Where the owner of land has it surveyed, mapped and platted showing subdivisions thereof, with spaces for intervening streets or
other highways between the subdivisions clearly indicated upon the map or plat, and conveyances in fee of the subdivisions are
made with reference to such map or plat, the owner thereby evinces an intention to dedicate an easement in the streets or other
highways to the public use as such, the title to the land under the street remaining in the owner or his grantees; and where such
conveyances are made with reference to the map or plat, the dedication of the easement for street purposes cannot be
subsequently revoked as against the grantees, and the title of the grantees of subdivisions abutting on such streets in the absence
of a contrary showing, extends to the center of such highway subject to the public easement. And where the highway is lawfully
surrendered the then holder of the title to abutting property and to the center of the street has the property relieved of the public
easement. See Moody v. Palmer, 50 Cal. 31; Trustees M. E. Church, Hoboken, v. Mayor and Council of Hoboken, 33 N.J.L. 13; Winter
v. Payne, 33 Fla. 470, 15 South. Rep. 211; Porter v. Carpenter, 39 Fla. 14, 21 South. Rep. 788; Price v. Stratton, 45 Fla. 535, 33
South. Rep. 644; Florida E.C.R. Co. v. Worley, 49 Fla. 297, 38 South. Rep. 618; Paine v. Consumers' Forwarding & Storage Co., 71
Fed. Rep. 626; Garnett v. Jacksonville, St. A. & H.R.R. Co., 20 Fla. 889; Florida Southern R. Co. v. Brown, 23 Fla. 104, 1 South. Rep.
512; Lovett v. State, 30 Fla. 142, 11 South. Rep. 550; Rawls v. Tallahassee Hotel Co., 43 Fla. 288, 31 South. Rep. 237; Robbins v.
White, 52 Fla. 613, 42 South. Rep. ; Seaboard Air Line Ry. v. Southern Inv. Co., 53 Fla. 832, 44 South. Rep. 351; 5 Cyc. 911; 8 R.C.L.
§ 18.

"Unless the deed manifests an intention on the part of the grantor to limit the boundary line, the line, when the land is bounded by
a non-navigable stream or highway, extends to the center of such stream or highway, if the grantor is the owner of the fee. Hence,
where a deed describes the land conveyed as extending five hundred feet to a street or avenue, and thence at right angles along
the street one hundred and twenty feet, etc., to the place of beginning, the fee of the land to the center of the street is conveyed
subject to the public easement, notwithstanding the line of five hundred feet extends only to the side of the street and not to its
center. When the avenue is no longer used as a street, the land is freed from the easement." 2 Devlin on Deeds (3rd ed.) § 1024.
This rule is one for construing conveyances, and must be applied to carry out, and not to frustrate the intention of the parties.
Where no contrary intent appears, a conveyance to a street carries title to the center of the street, subject to the public easement,
the title to the land under the street passing by construction and not as appurtenant to the abutting land. In this case the plaintiff
and her predecessor in title having conveyed the land abutting on both sides of the street without manifesting a contrary intent,
the title to the land under the street passed from the grantors by virtue of such conveyances of the abutting land; and the plaintiff
has no title to the land under the street. The fact that the space dedicated as a street was not used as such cannot affect the
rights of grantees who purchased with reference to the plat showing the dedication of the space for the purposes of a street. And if
the street easement over the land be lawfully abandoned or surrendered, the owner of the land holds it discharged of the
easement.

In view of the agreed statement of facts, it must be assumed that the conveyances in question were made with reference to the
streets as marked on the plat or map filed among the public records of the county. Though the spaces marked for streets were not
in fact used as streets, yet the conveyances of lots abutting on the spaces marked on the map as streets, by construction of law to
effectuate the manifest intention of the parties, carries title to the middle of the space marked as streets on the map or plat on file,
there being no contrary intent shown.

Judgment affirmed.

TAYLOR, C. J., and SHACKLEFORD and ELLIS, JJ., concur.

COCKRELL, J., absent on account of sickness.

19151210

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E. R. SIMMONS v. STATE FLORIDA (06/25/48)

SUPREME COURT OF FLORIDA

Docket Number available at www.versuslaw.com


Citation Number available at www.versuslaw.com

June 25, 1948

E. R. SIMMONS
v.
STATE OF FLORIDA

An appeal from the Circuit Court for Bay County, Ira A. Hutchison, Judge.

B. L. Solomon, and Robert L. McCrary, Jr., for appellant.

J. Tom Watson, Attorney General, and Reeves Bowen, Assistant Attorney General, for appellee.

En Banc. White, Associate Justice. Thomas, C.j., Terrell, Chapman, Adams, Sebring and Hobson, JJ., concur.

Author: White

This is an appeal from a conviction and sentence for violation of Statute 794.05. At the trial the lower court did not include in its
instructions to the jury the charge with respect to the penalty fixed by law for the offense for which the accused was then on trial
as required by Statute 918.10. The failure to give the charge is the sole ground for reversal urged by the appellant on this appeal.

Statute 918.10, enacted by the Legislature in the year 1945, provides:

"The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include
in said charge the penalty fixed by law for the offense for which the accused is then on trial." It was held by this Court in Eggart v.
State, 40 Fla. 527, 25 So. 144 (1898) that, except in cases involving capital punishment, where a majority of the jury may by a
recommendation to mercy in their verdict commute the penalty of death to life imprisonment, the trial jury has no concern with the
penalty imposed by statute with respect to criminal offenses; and that instructions upon that subject are inappropriate. See also
Osius v. State, 96 Fla. 318, 117 So. 859 (1928). The principle established in those cases still controls as respects the scope of
instructions to be given in a criminal prosecution, unless Section 918.10 has abrogated the effect of the cited decisions and now
makes mandatory the giving of an instruction as to the penalty fixed by law for the offense for which the accused is then on trial.

In the trial of a criminal case in Florida the function of the jury is to determine the issues of fact. The issues of fact embrace the
disputes between the State and the defendant as to what actually existed or occurred at the particular time and place in question.
When the State has carried the burden which rests upon it, the jury must apply the law in charge to the facts thus shown to be true
in order to arrive at a verdict conformable to law. Hence the sole function of the court's charge is properly to inform the jury
concerning the rules of law applicable to the facts in dispute. If the court is required to depart from this course and discuss matters
having no bearing on the true function of the jury, the trial necessarily is disconcerted and impeded.

The preservation of the inherent powers of the three branches of government -- legislative, executive, and judicial -- free from
encroachment or infringement by one upon the other, is essential to the safekeeping of the American system of constitutional rule.

This statement is found: (11 Am. Jur., p. 908)

"Any legislation that hampers judicial action or interferes with the discharge of judicial functions is unconstitutional."

This statement is also found: (16 C.J.S., p. 330).

"Although the legislature may regulate the procedure of trial courts with respect to instructions to juries, it cannot abridge the
power of the judge to charge the law, and direct a verdict where the facts are undisputed, nor can it require the court to instruct
the jury without regard to the evidence offered." (Underscoring supplied).

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In State v. Hopper, 71 Mo. 425 (1880), a statute directed the court, in trials upon indictments charging murder in the first degree to
charge upon the law respecting murder in the second degree. Commenting upon the statute, the court said:

"It has always been held to be the duty of the court, in trials for murder, if the evidence would warrant it, to instruct the jury as to
murder in the second degree, and if the above section was meant to require such an instruction to be given, without regard to the
evidence, we do not hesitate to say that it is such an invasion of the province of the judiciary as cannot be tolerated without a
surrender of its independence under the constitution. The legislature can pass any constitutional law it may deem proper, and the
courts are bound to observe it, but it cannot prescribe for them what instructions they shall give in a cause, unless they have
previously embodied into a legislative enactment as the law of the land the substance of such instructions."

It will be observed that statute 918.10, in directing the court to charge upon the penalty, uses the word "must," rather than "may."
If the statute be interpreted as an unqualified mandate that the court in every criminal case include in the charge the penalty which
might be imposed, rather than a mere grant of the privilege to so charge, it becomes an unreasonable infringement of the inherent
power of the court to perform the judicial function because it burdens the court with doing an empty and meaningless act.

In Fagan v. Robbins, 96 Fla. 91, 100, 117 So. 863 (1928), this Court quoted with approval the following enunciation by the Supreme
Court of Pennsylvania:

"The word 'shall' when used by the legislature to prescribe the action of a court is usually a grant of authority, and means 'may' and
even if it be intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the
exercise of the power." It is a rule of statutory construction that an interpretation will be adopted which will avoid objectionable
consequences. 50 Am. Jur., p. 372, et seq.

The provision of the statute in question must be interpreted as being merely directory, and not mandatory. It follows that the trial
judge was privileged to ignore the statute in so far as it attempts to require the inclusion in the charge of the penalty for the
offense for which the defendant was on trial.

Affirmed.

Disposition

Affirmed.

19480625

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

JORG BUSSE,

Plaintiff,

vs. Case No. 2007 CV 228 FtM 29 SPC

LEE COUNTY, FLORIDA, and its


BOARD OF COUNTY COMMISSIONERS, and
THE LEE COUNTY PROPERTY APPRAISER, and
STATE OF FLORIDA BOARD OF TRUSTEES
OF THE INTERNAL IMPROVEMENT TRUST FUND,
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION,

Defendants.
________________________________________________/

DEFENDANT LEE COUNTY’S MOTION TO DISMISS FOR FAILURE


TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED; OR
IN THE ALTERNATIVE, A MOTION FOR SUMMARY JUDGMENT; OR
IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT
AND MEMORANDUM OF LAW IN SUPPORT THEREOF

Comes now Defendant, LEE COUNTY, a political subdivision of the State of Florida, by and

through its counsel, pursuant to Fed. R. Civ. P. 12(b)(6), 12(e), and 56(b) and moves the Court to

dismiss the referenced matter and as grounds would state:

1. Plaintiff’s complaint, filed pro se and read most generously, is an apparent attempt

to enhance the value of the Plaintiff’s real property by attaching to it littoral or riparian rights.

(a) As Plaintiff avers at paragraph 3(b), and more fully describes at paragraphs

16 and 66, Plaintiff’s lot abuts not a waterway, but an alleyway or street.

(b) Beyond Plaintiff’s mere assertions of littoral rights, no averment presented,

however poorly pleaded, establishes any factual basis that Plaintiff’s lot abuts a waterway; therefore,
no riparian rights attach per Florida law.

(c) In the absence of any littoral rights, Plaintiff cannot claim any right to a dock

permit denied to him by Lee County as averred in paragraphs 79 and 80.

2. In paragraph 46, Plaintiff admits to his companion law suit now pending in state

court. LEE COUNTY is not yet a party in that suit (Case No. 06CA-3185). Should LEE COUNTY

be joined, the County, in the interest of judicial economy, will remove the case to this Court.

3. In Plaintiff’s state case, his complaints utilize attachments of copies of his lot

description from public records including aerial photos which clearly depict his lot’s location as

platted and as it exists today over 1200 feet from the Gulf of Mexico’s waters. (Those attachments

are attached here as exhibits A and B to the Memorandum of Law).

4. In the alternative, the aforesaid notwithstanding, and reading Plaintiff’s complaint

most generously, the averments remain so vague or ambiguous that defendant, LEE COUNTY,

cannot reasonably frame a responsive pleading. To wit: the majority of the numbered paragraphs

state various legal holdings from state and federal courts, Florida statutory law, administrative rules,

and opinions of the Florida Attorney General (see paragraphs 7, 9, 11, 13, 15). Other averments

simply make statements apparently based on the Plaintiff’s readings of various authorities, legal or

otherwise (see paragraphs 20, 21, etc.). While, for instance, paragraph 10 appears to state a cause

of action, no facts are presented to support the allegation. In sum, Plaintiff’s complaint is neither

short or plain or sufficient enough to allow a responsive pleading.

5. In the alternative, pursuant to Fed. R. Civ. P. 56(b), since LEE COUNTY is

submitting matters outside the pleadings, for example exhibits A and B, the Court shall treat the

matter as a motion for summary judgment. Vanero v. City of Tampa, 830 F. Supp. 1457, 1458

2
(1993)(J. Kovachevich).

6. Plaintiff has apparently named and served both “Lee County” and “its Board of

County Commissioners” as defendants. By statute, the proper party in interest is simply “Lee

County.” Therefore, Defendant moves to dismiss “its Board of County Commissioners.”

WHEREFORE, LEE COUNTY moves this Court to dismiss the complaint or, in the

alternative, order the Plaintiff to file a petition for relief that, even minimally, meets the Rules of

pleading; or grant the Defendant, LEE COUNTY, summary judgment.

MEMORANDUM IN SUPPORT

A motion made under Federal Rule 12(b)(6) tests the sufficiency of the complaint and cannot

be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts” entitling him

to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1951).

Plaintiff claims riparian rights. As the Florida Supreme Court articulated in 1895, “in a suit

to enjoin trespass upon riparian rights, the allegations of the bill must be clear and precise as to the

title.” Axline v. Shaw, 35 Fla. 305, 309, 17 So. 411, 412 (1895). The Axline court then examines

the claimant’s deed as to the boundaries of the subject real property: “In order for one to have

riparian rights, there must be an actual water boundary of the land in connection with which such

rights are claimed. Id at 310, 17 So. at 413. The Axline court concludes: “Such a boundary is land,

and not water, and does not confer riparian rights under our statute.” Id. at 305, 17 So. at 412.

Since Axline, the statutory definition of Florida sovereignty lands now extends to the ordinary

high water mark. §253.141(1) Fla. Stat. (2006). Plaintiff’s deed (attached as exhibit “A”) simply

conveys lot 15A. The lot is clearly outlined on the plat map as a 50' x 130' lot bounded by a street

right-of-way of 60 feet (attached exhibit “B”). Lot 15A is not bounded by water of any sort. Lot

3
15A does not extend to the “shore” as in Axline, or even the ordinary high water mark as depicted

on the plat. Florida law states: “The land to which the owner holds title must extend to the ordinary

high water mark of the navigable water in order that rights may attach. §253.141(1) Fla. Stat.

(2006).

Since there are no riparian rights appurtenant to the Plaintiff’s lot, the complaint is fatally

deficient and must be dismissed.

Respectfully submitted,

/s/ Jack N. Peterson


JACK N. PETERSON
Assistant County Attorney
Florida Bar No. 0832774

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true and correct copy of Lee County’s Motion to Dismiss has
been furnished by U.S. Mail to: Jorg Busse, Plaintiff, Post Office Box 1126, Naples, FL 34106-1126;
Reagan Kathleen Roane, Assistant General Counsel, 3900 Commonwealth Boulevard, Number 35,
Tallahassee, FL 32399-3000; and Kenneth W. Wilkinson, Lee County Property Appraiser, 2480
Thompson Street, Fort Myers, FL 33901, on this 1st day of May, 2007.

By: /s/ Jack N. Peterson


Jack N. Peterson
Assistant County Attorney
Florida Bar No. 0832774
DAVID M. OWEN
LEE COUNTY ATTORNEY’S OFFICE
2115 Second Street
Post Office Box 398
Fort Myers, Florida 33902-0398
Telephone No. (239) 533-2236
Facsimile Phone No. (239) 485-2118
PETERSJN@leegov.com