DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

BB INLET PROPERTY, LLC,

Appellant,

v.

920 N. STANLEY PARTNERS, LLC,

Appellee.

No. 4D18-3765

[March 11, 2020]

Appeal and cross-appeal from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; Jeffrey Dana Gillen, Judge; L.T. Case 

No. 502017CA000048.

Gary J. Nagle of Law Office of Gary J. Nagle, Juno Beach, and David 

Mark Levin of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 

Sarasota, for appellant/cross-appellee.

Jeffrey C. Schneider, Stuart I. Grossman, Matthew Joseph McGuane of 

Levine Kellogg Lehman Schneider + Grossman, LLP, Miami, for 

appellee/cross-appellant.

MAY, J.

We are harkened back to the common law on riparian and littoral rights

and their evolution to modern day in a dispute between an upland property 

owner (“upland owner”) and a submerged land property owner

(“submerged land owner”). Specifically, we are called upon to determine 

whether the trial court erred in determining the upland owner had the 

right to retain a dock that extends onto the submerged land. We find no 

error and affirm. On cross-appeal, the upland owner claims error in the 

trial court’s denial of its motion for sanctions. We agree with the upland 

owner that sanctions were warranted, and thus reverse and remand for 

the trial court to determine the amount of the upland owner’s attorney’s 

fees and costs to be awarded.

The upland property is bounded on the east by the Atlantic Ocean and 

on the west by the Intracoastal Waterway. It includes a dock, which 

extends onto the submerged land and the Intracoastal Waterway. 
2

The submerged land’s prior owner acquired the property by tax deed in 

1989 and was aware of the dock. In 1995, the upland’s prior owner

requested the Town of Manalapan’s architectural commission to extend 

the dock. Only one person, who did not own the submerged land, objected 

to the extension. The commission approved the dock’s extension at two 

public hearings. In 1996, the Department of Environmental Resources 

Management of Palm Beach County (“DERM”) issued the wetlands 

alterations permit to the prior upland owner. The DERM permit approved 

an extension of the dock’s length to 85 feet. 

The current upland owner purchased the property in 2015. The 

submerged land went through two ownership transfers resulting in the 

current ownership. Neither the current upland owner, nor the submerged 

land owner owned the submerged land when the dock was originally built 

nor extended. Upon obtaining title, the current submerged land owner

questioned the current upland owner’s right to the dock. 

The upland owner then filed a complaint requesting a declaratory 

judgment regarding its riparian and littoral rights to the dock. It 

alternatively sought to retain the dock by prescriptive easement. 

In its answer, affirmative defenses, and counterclaim, the submerged 

land owner alleged the dock permit “was fraudulently obtained” because 

the permit application falsely stated that the prior upland owner also 

owned the submerged land. The upland owner moved to dismiss the 

counterclaim, arguing in part that the submerged land owner failed to 

plead fraud with particularity. 

 

The trial court granted the motion and gave the submerged land owner 

leave to amend. The submerged land owner subsequently filed its answer, 

amended affirmative defenses, and amended counterclaim, expanding its 

allegations that the prior upland owner’s permit application falsely stated 

he owned the submerged land as well. 

 

The current upland owner requested the submerged land owner to 

provide the permit application, but the document was never produced. 

Ultimately, the parties agreed to an order that allowed the submerged land

owner to produce the permit application. The order further provided that 

if the submerged land owner did not produce the document, it “stipulate[d]

and agree[d] that there are no permit applications in existence in support 

of the fraud allegations in its Amended Affirmative Defenses and Amended 

Counterclaim.” No document was ever produced.
3

The submerged land owner then filed its answer and second amended 

affirmative defenses alleging: 1) the upland owner’s dock’s installation and 

use of the submerged land fell outside the scope of Florida riparian rights; 

2) the dock and its extension were built without the consent of the 

submerged land’s then owner; 3) the dock substantially encroached on the 

submerged land owner’s property rights; and 4) the dock was not 

constructed in compliance with all applicable building code regulations. It 

asserted a counterclaim to quiet title, for ejectment, and trespass. 

Sanctions

The upland owner moved for sanctions under the inequitable conduct 

doctrine, arguing the submerged land owner’s counterclaim was premised 

on false facts. The trial court ultimately held an evidentiary hearing where 

the Manalapan town manager, clerk, and another witness testified. The 

court also considered the town manager and clerk’s affidavits. The trial 

court denied the motion for sanctions, finding: 

The town does not have an application for a permit to build 

the dock which is the subject of this dispute. It is unlikely 

any such paper application ever existed. The town does not 

require submission of a written application to obtain a permit 

to build a dock. There exists no evidence that there was any 

fraud perpetrated or code violated in the procurement of a 

permit-authority for dock construction or extension.

The court further found, “it is patently obvious that [the submerged land

owner] made his allegations based not on fact but instead on his 

assumptions.” And, these “assumptions are erroneous and the allegations 

were unsupported.” 

 

But, the court ultimately concluded the inequitable conduct doctrine 

was inapplicable because, although the allegations were ill-advised and 

negligently made, they were not made in “bad-faith, vexatious, wanton, 

egregious or oppressive conduct or motivation.” 

Summary Judgment

The upland owner moved for summary judgment on all claims and 

counterclaims. The submerged land owner cross-moved for summary 

judgment. At the hearing, the upland owner argued that waiver and 

estoppel prevent the submerged land owner from pursuing the fraud claim 

because it failed to prove anyone objected to the structure being placed on 
4

the submerged land. The upland owner argued the dock was constructed 

in accordance with the existing regulations. 

In response, the submerged land owner argued the upland owner failed 

to establish a prescriptive easement. It argued “the law promotes 

neighborliness, friendliness between parties, boundary parties and does 

not want to favor people losing land by acquisition or permissive use of the 

property.” Thus, according to the submerged land owner, the upland 

owner’s argument that no one objected should not prevail. The submerged 

land owner also argued the law only allows an individual to build to the 

low watermark unless it has some consent, which the upland owner didn’t

have.

 

The trial court granted the upland owner’s motion and denied the 

submerged land owner’s cross-motion for summary final judgment. The 

court concluded that the submerged land owner:

took title to the submerged land with actual knowledge of the 

long-extant dock which was built with permission of the Town 

of Manalapan. Therefore, [the submerged land owner] 

acquired title subject [to the upland owner’s] littoral rights 

which include the preservation of its dock, and it is 

appropriate for this Court to enter summary final judgment in 

favor of [the upland owner] and, accordingly deny [the 

submerged land owner’s] motion for summary final judgment.

The trial court denied the submerged land owner’s motion for 

reconsideration. It entered its final judgment in favor of the upland owner. 

The judgment stated:

The Dock, including the dock pilings and dolphin pilings, are 

lawfully located on the Submerged Land based upon [the 

upland owner’s] littoral rights set forth above and defined 

more fully by Florida law, and the prior authorization and 

approval of Palm Beach County and the Town of Manalapan.

The court further indicated it did not need to decide the prescriptive 

easement claim. 

From this judgment, the submerged land owner appeals. The upland 

owner cross-appeals the order denying sanctions.
5

The Appeal

The submerged land owner argues the trial court erred in granting the 

upland owner’s motion for summary judgment because: 1) the dock 

extends beyond what is allowed by the common law riparian right to 

construct a dock; 2) there is no evidence of the prior submerged land

owner’s consent to the dock’s construction; 3) there is no evidence to 

support the upland owner’s claim to a prescriptive right; and 4) the DERM 

permit did not authorize trespass, occupation, or construction on the 

submerged land without the owner’s consent. 

The upland owner responds that: 1) it had a littoral right to access and 

use navigable waters; 2) under the Public Trust Doctrine, the prior 

submerged land owner did not need to consent to the dock’s construction; 

and 3) given the dock’s construction in 1957, the submerged land owner

waived its arguments and is estopped from now challenging the dock.

 

We have de novo review of an order granting summary judgment. 

Dennis v. Kline, 120 So. 3d 11, 20 (Fla. 4th DCA 2013).

A trial court must grant a summary judgment “if the pleadings and 

summary judgment evidence on file show that there is no genuine issue 

as to any material fact and that the moving party is entitled to a judgment 

as a matter of law.” Fla. R. Civ. P. 1.510(c). “In determining whether to 

grant a motion for summary judgment, all facts must be taken in the light 

most favorable to the non-moving party.” Carnes v. Fender, 936 So. 2d 

11, 14 (Fla. 4th DCA 2006). 

• Common Law Riparian/Littoral Rights

The central issue is whether the upland owner has a common law 

littoral right to the dock located on privately-owned submerged land. The 

answer is yes.

“Riparian rights are rights to use the water.” Brannon v. Boldt, 958 So. 

2d 367, 372 (Fla. 2d DCA 2007). Technically, a riparian is land with water 

frontage; specifically, “land abutting non-tidal or navigable river waters.” 

Kester v. Tewksbury, 701 So. 2d 443, 444 n.2 (Fla. 4th DCA 1997). Littoral 

“refers to the land abutting navigable ocean, sea, or lake waters.” Id. 

However, “the terms riparian rights and littoral rights are now used 

interchangeably.” Brannon, 958 So. 2d at 375. 

“[T]he littoral rights to access, use, and view are easements under 

Florida common law.” Walton County v. Stop the Beach Renourishment, 
6

Inc., 998 So. 2d 1102, 1112 (Fla. 2008), aff’d sub nom. Stop the Beach 

Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702 (2010). These 

rights are considered affirmative easements because “they grant ‘rights to 

enter and use land in possession of another.’” Id. (RESTATEMENT (THIRD) OF 

PROP. § 1.2 cmt. a. (AM. LAW INST. 2000)). 

Upland owners have common law littoral rights, including: “(1) the 

right to have access to the water; (2) the right to reasonably use the water; 

(3) the right to accretion and reliction; and (4) the right to the unobstructed 

view of the water.” Accardi v. Regions Bank, 201 So. 3d 743, 746 (Fla. 4th 

DCA 2016) (quoting Stop the Beach Renourishment, Inc., 998 So. 2d at 

1111). These rights, which are subject to regulation, are private property 

rights that cannot be taken away without just compensation. Id. 

Upland owners also “have a qualified right, with the consent of the 

[s]tate, to erect wharves or piers or docks subject to lawful state regulation 

and the dominant powers of Congress.” Modrall v. Sawyer, 297 So. 2d 

562, 563 (Fla. 1974); see also Shore Vill. Prop. Owners’ Ass’n v. State Dep’t 

of Envtl. Prot., 824 So. 2d 208, 211 (Fla. 4th DCA 2002).

We have recognized a distinction between docks constructed to 

facilitate access to navigable waters and those constructed for commercial 

purposes. In Shore Village, we held that “riparian rights include the 

building of a dock to have access to navigable waters.” 824 So. 2d at 211. 

However, in Tewksbury v. City of Deerfield Beach, 763 So. 2d 1071 (Fla. 

4th DCA 1999), we held that the use of a dock, extending over privatelyowned submerged land, to operate a restaurant is beyond the scope of 

littoral rights under Florida law. Id. at 1071.

The upland owner filed this action because the dock “is the only means 

for access to the Intracoastal Waterway as the nearest navigable waters.” 

The upland owner provided an affidavit attesting to that fact. It also filed 

an affidavit of a dock design and construction specialist, who examined 

the dock and concluded: 

It is therefore necessary for the [d]ock to linearly extent [sic] 

outward from and perpendicular to the sea wall. Due to the 

shallow water depths, a dock of at least 85-feet past the riprap and perpendicular to the sea wall is necessary to safely 

dock a boat of average size in this locale.

The submerged land owner failed to present any evidence that the 

upland owner’s dock was unnecessary or exceeded what was necessary to 

facilitate access to the Intracoastal Waterway. The trial court correctly 
7

found that the upland owner had a littoral right to the dock. 5F, LLC v. 

Dresing, 142 So. 3d 936, 947 (Fla. 2d DCA 2014).

• The Public Trust Doctrine

The next step in determining whether the riparian owner has the 

qualified right to construct or retain a dock is whether the owner complied 

with the applicable regulations as part of the Public Trust Doctrine. See

Op. Att’y Gen. Fla. 96-49 (1996).

“At common law, all navigable waters and lands under such waters 

were held by the sovereign for the benefit of the people.” Graham v. 

Edwards, 472 So. 2d 803, 806 (Fla. 3d DCA 1985). “[O]wner[s] of land 

abutting on navigable waters had no exclusive right in the waters, below 

ordinary highwater mark or in the lands under the waters, except the right 

of access to and from the navigable waters . . . .” Merrill-Stevens Co. v. 

Durkee, 57 So. 428, 431 (Fla. 1912).

This benefit, held by the sovereign, is now codified in Article X, section 

11, of the Florida Constitution and is known as the Public Trust Doctrine. 

Section 11 states that “[t]he title to lands under navigable waters, within 

the boundaries of the state, which have not been alienated, . . . is held by 

the state, by virtue of its sovereignty, in trust for all the people.” Art. X, § 

11, Fla. Const. 

“[E]ven when the title [to the submerged land] is in private parties, a 

recovery of possession is subject to the rights of the public in the waters.” 

Williams v. Guthrie, 137 So. 682, 684–85 (Fla. 1931). A “‘common thread’ 

in the caselaw is ‘that the rights of the public are superior to those of 

private landowners—whether riparian owners or submerged land 

owners.’” Herbits v. Bd. of Trs. of Internal Improvement Tr. Fund, 195 So. 

3d 1149, 1157 (Fla. 1st DCA 2016) (quoting 5F, LLC, 142 So. 3d at 946). 

The submerged land owner argues the Public Trust Doctrine does not 

provide a riparian right or other legal basis for the upland owner to retain 

the dock upon its submerged land without its consent. However, there 

simply is no consent requirement. The sovereign continues to have

authority to regulate and control the use of privately-owned submerged 

lands for the benefit of the public—including riparian owners. Here, the 

Town of Manalapan enacted ordinances governing the size of docks and 

boats. These applicable ordinances were enacted as part of the Public 

Trust Doctrine because they were made for the public’s benefit. 
8

In 1996, the prior upland owner requested permission from both the 

County and the Town of Manalapan to extend the dock that was originally 

constructed in 1957 to 85 feet, a permissible length according to the 

zoning ordinances. Upon making the request, the Town of Manalapan held 

two public hearings in which neighboring property owners had the right 

to object. The then submerged land owner did not object at either hearing. 

Because the requested dock extension complied with the Town of 

Manalapan’s regulations, the County and Town issued the permit 

approving the extension.

The evidence established that the extended dock was built in 

compliance with the existing regulations. There was no genuine issue as 

to any material fact and the upland owner was entitled to judgment as a 

matter of law. The trial court correctly entered summary judgment for the 

upland owner. 

We therefore affirm.1

Cross-Appeal

On cross-appeal, the upland owner argues the trial court erred in 

denying its motion for sanctions because the submerged land owner’s 

fraud allegations were not made with a good faith effort to verify the 

allegations. The submerged land owner responds that the trial court did 

not find its conduct was made in bad faith. 

We review a trial court order denying a motion for sanctions for an 

abuse of discretion. Williams v. Prepared Ins., 274 So. 3d 398, 406 (Fla. 

4th DCA 2019).

“The inequitable conduct doctrine permits the award of attorney’s fees 

where one party has exhibited egregious conduct or acted in bad faith.” 

Moakley v. Smallwood, 826 So. 2d 221, 224 (Fla. 2002) (quoting Bitterman 

1 At the hearing on the motion for summary judgment and on appeal, the upland 

owner suggests that the submerged land owner waived any objection to the dock 

or is now estopped from objecting. The trial court noted in its order that the 

submerged landowner’s predecessors-in-interest, some apparently controlled by 

the same principal as controls the submerged landowner, “took title to the 

submerged land with actual knowledge of the long-extant dock which was built 

with permission of the Town of Manalapan. Therefore, the [submerged land

owner] acquired title subject [the upland owner’s] littoral rights which include the 

preservation of its dock . . . .” But, the trial court does not appear to have relied 

on waiver or estoppel in entering summary judgment.
9

v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998)). A trial court has inherent 

authority in imposing attorney’s fees against an attorney; however, this 

sanction derives from the conclusion that the attorney’s conduct was in

bad faith “and must be supported by detailed factual findings describing 

the specific acts of bad faith conduct that resulted in the unnecessary 

incurrence of attorneys’ fees.” Goldman v. Estate of Goldman, 166 So. 3d 

927, 929 (Fla. 3d DCA 2015) (quoting Moakley, 826 So. 2d at 227). 

Here, the submerged land owner’s initial answer asserted the dock was 

built without a proper permit and without the prior submerged land

owner’s consent. It also alleged the permit was fraudulently obtained 

because the permit application falsely stated that the prior upland owner 

also owned the submerged land at the time the dock was built. The trial 

court granted the upland owner’s motion to dismiss the counterclaim with 

leave to amend. 

The submerged land owner then filed its amended affirmative defenses 

and counterclaim alleging the same fraud-based allegations, but with 

slightly more detail. It did not however provide the permit application. 

Ultimately, the parties agreed to an order that allowed the submerged 

land owner to produce the permit application. The order further provided 

that if the submerged land owner did not produce the document, it 

“stipulate[d] and agree[d] that there are no permit applications in existence 

in support of the fraud allegations in its Amended Affirmative Defenses 

and Amended Counterclaim.” No document was ever produced.

At the hearing on the motion for sanctions, the submerged land owner

testified that, prior to filing the pleadings, it contacted at least one official 

from the Town of Manalapan concerning the town’s records involving the 

construction of the dock, but was unable to acquire a fraudulent permit 

application. The submerged landowner further testified that after filing 

its initial and amended answer, it attempted to verify its fraudulent 

application allegation. It was “astonished” to learn that the Town of 

Manalapan does not require a building permit to construct docks.

Based upon this testimony, the trial court stated it was “patently 

obvious that [the submerged land owner’s] assumptions are erroneous and 

the allegations were unsupported.” Although the “allegations were illadvised, and, at the very least negligently made, given the lack of timely 

fact-research,” the trial court concluded there was no evidence of badfaith, vexatious, wanton, egregious or oppressive conduct, or motivation. 
10

We disagree with the trial court’s conclusion that no evidence of bad 

faith conduct existed. The counterclaim’s unsubstantiated allegation—

“The dock was built with a permit which was fraudulently obtained, 

because the permit application falsely stated that the then-owner of [the 

upland property] also owned [the submerged land]”—was pled as a fact. 

The allegation contained no caveat that it was based on “information and 

belief,” nor any conditional language that it was based on an “assumption.” 

A reasonable person reading the allegation would believe the submerged 

land owner had viewed or obtained the purported false permit application.

After the trial court granted the upland owner’s motion to dismiss the 

counterclaim with leave to amend, the submerged land owner’s amended 

counterclaim doubled down on its unsubstantiated fraud-based 

allegations. However, this time, the submerged land owner’s verbiage left 

a clue that its fraud-based allegations may have been unsubstantiated—

“The dock was built either without a permit or with a permit which was 

fraudulently obtained, because the permit application, if filed, would have 

falsely stated that the then-owner of [the upland property] also owned [the 

submerged land].” (Emphasis added).

Both allegations were untrue. Rather than simply admitting it had not

viewed or obtained the purported false permit application, the submerged 

land owner extended this stratagem even further by agreeing to an order

allowing it to produce the purported false permit application at a later date.

Of course, the submerged land owner did not produce the purported 

false permit application—because it never existed, as finally revealed at 

the evidentiary hearing on the upland owner’s motion for sanctions. Based 

on the competent substantial evidence which the upland owner presented 

at that hearing, in the form of the Manalapan town officials’ testimony and 

affidavits, the submerged land owner either knew or should have known 

through a cursory public records examination or request that no 

purported false permit application ever existed, nor was such a permit

application ever required. As the trial court found:

The town does not have an application for a permit to build 

the dock which is the subject of this dispute. It is unlikely 

any such paper application ever existed. The town does not 

require submission of a written application to obtain a permit 

to build a dock. There exists no evidence that there was any 

fraud perpetrated or code violated in the procurement of a 

permit-authority for dock construction or extension.
11

The trial court’s factual findings were correct. However, contrary to the 

trial court’s legal conclusion, the submerged land owner’s conduct was 

more than “ill-advised and negligently made.” The only reasonable 

conclusion was that the submerged land owner’s repeated allegations were 

in bad faith, justifying sanctions under the inequitable conduct doctrine.

 

Based on the foregoing, we reverse the trial court’s denial of the upland 

owner’s motion for sanctions. We remand for the trial court to enter an 

order granting the motion, and set a hearing to determine the amount of 

the upland owner’s attorney’s fees and costs incurred in disproving the 

untrue allegations regarding the purported false permit application.

Affirmed on the direct appeal; reversed and remanded with instructions 

on the cross-appeal.

LEVINE, C.J., and GERBER, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.