Lincolnshire Maximo, LLC v. Marina Walk, LLC

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
LINCOLNSHIRE MAXIMO LLC,
Appellant,
v.
MARINA WALK, LLC,
Appellee.
No. 2D2025-0037
March 25, 2026
Appeal from the Circuit Court for Pinellas County; W. Douglas Baird,
Judge.
Stacy D. Blank, Jason H. Baruch, and Paul J. Punzone of Holland &
Knight LLP, Tampa, for Appellant.
Diran V. Seropian and Daniel S. Weinger of Luks, Santaniello, Petrillo,
Cohen & Peterfriend, Fort Lauderdale; and Brian A. Bolves and Laura S.
Olympio of Manson Bolves Donaldson Tanner, P.A., Tampa, for Appellee.
BLACK, Judge.
Lincolnshire Maximo LLC (Maximo) appeals from the final judgment
entered in favor of Marina Walk, LLC, following a nonjury trial. Because
the trial court erred in finding that a prescriptive easement existed for
the drainage pipe on Maximo's property and in otherwise determining
that Marina Walk's use of the pipe for drainage was consistent with its

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right as the upland property owner to drain surface water in a manner
that comports with what the trial court deemed to be the historical
drainage pattern, the final judgment is reversed in part.
Maximo and Marina Walk own properties on opposite sides of 37th
Street South in St. Petersburg near Boca Ciega Bay. Marina Walk's
property is on the east side of 37th Street South; Maximo's property is on
the west side of 37th Street South and comprises a marina, boat basin,
and canal. A drainage pipe extends westward from Marina Walk's
property under both 37th Street South and Maximo's parking lot,
ultimately emptying into Maximo's boat basin through a seawall. This
appeal concerns Marina Walk's right to use the portion of the pipe on
Maximo's property.
In the 1950s and 1960s Morty and Alvin Wolosoff acquired and
developed, either individually or through their business entities,
properties near Boca Ciega Bay, including the property now owned by
Maximo and the property now owned by Marina Walk. A hotel was built
on the property now owned by Marina Walk, and to accommodate
surface water drainage from the hotel, the pipe at issue was installed.
The pipe has existed in its current configuration since at least 1968.
Ownership of the properties changed over the years, and then in 2009
Maximo purchased the property comprising the marina, boat basin, and
canal. That same year, an entity owned by Jack Doughtery purchased
the property across the street, upon which the hotel had been built; in
2019 that property was sold to Marina Walk, another entity owned by
Mr. Doughtery. Operation of the hotel continued until 2018,1 when Mr.
1 The hotel first operated as a Holiday Inn. Later it operated as the
Flamingo Hotel.

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Dougherty decided to redevelop the property into a luxury apartment
complex. That same year, Maximo objected to the use of the pipe on its
property, sending Mr. Doughtery a cease-and-desist letter in which
Maximo stated that the hotel property did not have permission to drain
surface water through the pipe on Maximo's property or into Maximo's
boat basin. When drainage through the pipe continued, Maximo plugged
the pipe, though the plug was removed during the pendency of the trial
court proceedings.
In 2021 Maximo filed a complaint against Marina Walk, which was
later amended. Marina Walk in turn filed a counterclaim against
Maximo, which was also later amended. A nonjury trial was held in
August 2024, and in December 2024 the final judgment was rendered.
The following counts were resolved by the trial court in the final
judgment: count I of Maximo's amended complaint, which sought a
declaration of the right to exclude others from using the pipe to drain
surface water onto its property; count II of Maximo's amended complaint,
which sought a permanent injunction preventing Marina Walk from
discharging surface water through the pipe on Maximo's property; count
IV of Maximo's amended complaint, which sought damages in the form of
disgorgement of profits based on unjust enrichment; count I of Marina
Walk's amended counterclaim, which sought damages for private
nuisance due to the interference with surface water flow; count II of
Marina Walk's amended counterclaim, which sought damages for
trespass due to the interference with easement rights; count IV of Marina
Walk's amended counterclaim, which sought a declaration of the
existence of an easement by implication; count V of Marina Walk's
amended counterclaim, which sought a declaration of the existence of a
prescriptive easement; and count VII of Marina Walk's amended

4
counterclaim, which sought damages for nuisance due to the
interference with water views, as well as an injunction.
The trial court found that no evidence had been presented
demonstrating that the use of the pipe on Maximo's property had been
permissive and that Marina Walk had proven each element to establish a
prescriptive easement. The trial court further found that the use of the
pipe was consistent with Marina Walk's right as the upland property
owner to drain surface water in a manner that aligns with what had
become the "historical drainage pattern." Moreover, while the trial court
found Marina Walk's use of the pipe to be exclusive, it determined that
Marina Walk's drainage of surface water through the pipe and into the
boat basin did not "negatively impact[] the Maximo property or its
operation to any degree." In addition to declaring the existence of a
prescriptive easement, the trial court entered judgment in favor of
Marina Walk for private nuisance and trespass. And because it found
there to be a prescriptive easement for the pipe on Maximo's property,
the court deemed moot Marina Walk's count for declaration of an
easement by implication. Maximo's claims for declaratory relief,
permanent injunction, and unjust enrichment were denied.2
On appeal, Maximo argues that the trial court erred in finding there
to be a prescriptive easement. According to Maximo, use of the pipe on
its property had always been permissive, and as such it had the right to
withdraw that permission. Maximo contends that the trial court
misapplied the law by ignoring the presumption of permissive use and
that competent substantial evidence does not support the finding that
2 Though not pertinent to this appeal, several claims were also
dismissed at trial.

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permission to use the pipe had not been granted either by Maximo or any
of the prior owners of its property. Additionally, Maximo argues that the
drainage rights of an upland property have no applicability here.3
The issues in this appeal present mixed questions of law and fact.
We review questions of law de novo and findings of fact for competent
substantial evidence. See CBHIV LLC v. Walton County, 405 So. 3d 536,
541 (Fla. 1st DCA 2025).
"[A]n easement is a right to use another's land 'for some particular
purpose or purposes.' " SHM Cape Harbour, LLC v. Realmark META, LLC,
335 So. 3d 754, 759 (Fla. 2d DCA 2022) (alteration in original) (quoting
Buie v. Bluebird Landing Owner's Ass'n, 172 So. 3d 519, 522 (Fla. 1st
DCA 2015)). The following elements must be proven to establish the
existence of a prescriptive easement:
(1) actual, continuous, and uninterrupted use by the claimant
or any predecessor in title for the prescribed period of twenty
years; (2) that during the whole prescribed period the use has
been either with the actual knowledge of the owner or so
open, notorious and visible that knowledge of the use is
imputed to the owner; (3) that the use related to a certain
limited and defined area of land or, if for a right-of-way, the
use was of a definite route with a reasonably certain line,
width, and termini; and (4) that during the whole prescribed
period the use has been adverse to the lawful owner; that is,
(a) the use has been made without the permission of the
owner and under some claim of right other than permission
from the owner, (b) the use has been either exclusive of the
owner or inconsistent with the rights of the owner of the land
to its use and enjoyment, and (c) the use has been such that,
during the whole prescribed period, the owner had a cause of
action against the user for the use being made.
3 Maximo also challenges on appeal the trial court's denial of its
claim for damages in the form of disgorgement of profits based on unjust
enrichment. This argument lacks merit, and we decline to comment on it
further.

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Dana v. Eilers, 279 So. 3d 825, 827-28 (Fla. 2d DCA 2019) (quoting Dan
v. BSJ Realty, LLC, 953 So. 2d 640, 642 (Fla. 3d DCA 2007)); accord
Downing v. Bird, 100 So. 2d 57, 64 (Fla. 1958); Phelps v. Griffith, 629 So.
2d 304, 305 (Fla. 2d DCA 1993). Maximo does not dispute the first three
elements. Thus the only element at issue in this appeal is adverse use
and specifically whether the use had been with permission. See Dana,
279 So. 3d at 829 ("In this case, as in many others, it is the element of
adversity that is primarily in dispute . . . .").
It is well established that the use of the property of another is
presumed to be with the owner's permission. Dana, 279 So. 3d at 828
(quoting Downing, 100 So. 2d at 64); Dan, 953 So. 2d at 642. And as
such the "burden is on the claimant to prove that the use or possession
is adverse" by "clear and positive proof." Dana, 279 So. 3d at 828
(quoting Downing, 100 So. 2d at 64). Clear and positive proof "is
consistent with the jurisprudential definition of clear and convincing
evidence." Id. "[L]oose, uncertain testimony which necessitates resort to
mere conjecture" is insufficient. Id. (quoting Downing, 100 So. 2d at 64);
see also Crigger v. Fla. Power Corp., 436 So. 2d 937, 943 (Fla. 5th DCA
1983) ("Because under Downing v. Bird prescriptive rights are gained by
an adverse user asserting a right based on his own wrongdoing, the law
does not favor the acquisition of prescriptive rights and requires a high
burden as to allegations and proof in order to overcome historical and
well-founded presumptions against wrongdoing."). "[A]ll doubts as to the
adverse character of a claimant's pattern of use must be resolved in favor
of the lawful owner of the property." Dana, 279 So. 3d at 828 (quoting
Phelps, 629 So. 2d at 306).

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The trial court made no mention of the presumption of permissive
use in the final judgment. And in fact it appears to have placed the
burden on Maximo to prove that the use had been with permission:
No evidence was produced at trial to demonstrate that
Maximo or any of the previous owners of the Maximo marina
property ever granted permission to Marina Walk or any of its
previous owners to use the [p]ipe to drain Marina Walk storm
drainage into the marina basin through the [p]ipe.
Placing such a burden on Maximo runs afoul of clearly established
precedent. See Downing, 100 So. 2d at 64; Dana, 279 So. 3d at 828; see
also Suwannee River Water Mgmt. Dist. v. Price, 740 So. 2d 46, 47 (Fla.
1st DCA 1999) ("[T]he trial court thus erred in placing the burden on the
District to prove that appellee's use of the District's road was
permissive."). And Marina Walk otherwise failed to meet its burden of
proving that the use had been without permission.
The evidence presented at trial established that the pipe has been
used—either by Marina Walk or the prior owners of the property—for
drainage since the 1960s. When the pipe was first installed and used,
there was commonality in ownership of the property now owned by
Maximo and the property now owned by Marina Walk. No easement for
use of the pipe was ever recorded. Peter Fritsch, the plans supervisor for
the City of St. Petersburg, reviewed Marina Walk's site plans for the
apartment complex. Several options were included in the site plans for
drainage, including through the pipe on Maximo's property. According to
Mr. Fritsch, it is not common for site plans to show drainage through
another's private property. Mr. Doughtery testified that to his
knowledge, the pipe "was installed with permission." He further agreed
that he was "not aware of any permission that was not granted for the
use of th[e] pipe from the beginning." And prior to receiving the cease-

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and-desist letter, he "did not have any question [him]self as to whether
th[e] hotel was allowed to drain or not drain."
Contrary to the court's finding, the evidence presented at trial did
establish that permission or consent to use the pipe on Maximo's
property had been given—at least implicitly—until that permission was
withdrawn in 2018. See Dana, 279 So. 3d at 829-30 ("While none of the
witnesses could recall prior owners giving express consent to use of their
portion of the driveway, the evidence showed that the Danas and their
predecessors allowed the Eilers and their predecessors to freely use the
disputed property and that the driveway was used by both parties and
their predecessors for the same common purpose. Thus, we find there is
evidence of implicit consent, supporting a presumption of permissive
use." (footnote omitted)).
And while the trial court found that the use has been exclusive, it
also found—and Maximo does not dispute on appeal—that the use has
not "negatively impacted the Maximo property or its operation to any
degree." In other words, Marina Walk's use of the pipe for drainage is
not inconsistent with Maximo's use and enjoyment of its property. See
Dana, 279 So. 3d at 830 ("[T]here was no evidence that the Eilers' use of
the disputed property prevented the Danas or their predecessors from
making use of the property as they desired. The Eilers presented no
evidence of use of the property in a manner that was against the interest
of, or injurious to, the Danas or their predecessors." (citation omitted));
Phelps, 629 So. 2d at 306 ("In the present case, there was at least
implicit evidence of consent by the present and former owners of the land
underlying Lemon Patch Road. Although no one could recall when, or
whether, these owners had given express permission to traverse the
improved road rather than the adjacent deeded easement, there also was

9
no evidence whatsoever that appellees' use of the road prevented
appellants or their predecessors from doing anything they wanted with
their property. Although counsel for appellees represented that
appellants were 'disallow[ed] the right to plant citrus trees' or make other
use of the 15–foot strip, there was no showing appellants had ever
attempted or desired to use this portion of their land for anything other
than a road. Accordingly, we reverse the final judgment awarding
appellees a prescriptive easement and remand this case with instructions
to enter judgment for appellants."); Guerard v. Roper, 385 So. 2d 718,
721 (Fla. 5th DCA 1980) ("[T]here is nothing to show that the use made
by the appellee was inconsistent with the rights of the owner to her use
and enjoyment of the land, which supports rather than overcomes the
presumption that any such use is permissive.").
As this court recognized in Dana, even in the face of "long-term,
open, [and] continuance use by [claimants] and their predecessors,
under Florida law, [claimants] must still establish adversity." See 279
So. 3d at 830. "The law has placed the burden on the claimant and
protects the record title owner and those that may acquire the property
in the future." Id. at 830-31. And here, adversity was not shown by
clear and positive proof. See id. at 831.4
4 Marina Walk's reliance on Hunt Land Holding Co. v. Schramm, 121
So. 2d 697 (Fla. 2d DCA 1960), is misplaced. In Hunt, unlike in this
case, no evidence—implicit or otherwise—of permissive use was
presented. See id. at 701; see also Dana, 279 So. 3d at 830 n.7
(distinguishing Hunt in part because the landowner in Hunt "offered no
evidence that consent had been given, choosing to rely solely on the legal
presumption of permissive use"). Moreover, this court in Hunt held that
the claimants had "surmounted" the presumption of permissive use in
part because the use was "inconsistent with the rights of the owners to
their use and enjoyment of the lands." 121 So. 2d at 701. But here, the

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Maximo also argues—and we agree—that the trial court further
erred to the extent it concluded that Marina Walk's use of the pipe was
consistent with its drainage rights as the upland property owner. It
appears that the trial court was in effect relying on the "reasonable use
rule" as it is applied in circumstances where there has been "interference
with surface waters." See Westland Skating Ctr., Inc. v. Gus Machado
Buick, Inc., 542 So. 2d 959, 962 (Fla. 1989). That rule has no
applicability here, however, as Maximo's property and Marina Walk's
property are not adjoining. See id. at 962-63.
For the reasons set forth above, the final judgment is reversed to
the extent the trial court denied Maximo relief on counts I and II of its
amended complaint and to the extent the trial court entered judgment in
favor of Marina Walk on counts I, II, and V of its amended counterclaim.
The final judgment is otherwise affirmed. On remand, the trial court
shall enter judgment in favor of Maximo on counts I and II of its
amended complaint.
Affirmed in part, reversed in part, and remanded.
SLEET, J., Concurs.
LUCAS, C.J., Concurs with opinion.
trial court found that Marina Walk's use of the pipe for drainage was not
inconsistent with Maximo's use and enjoyment of its property. Moreover,
because the Hunt opinion failed to identify the evidence supporting the
conclusion regarding inconsistent use, subsequent decisions from this
court have recognized that it is of limited use. See Dana, 279 So. 3d at
830 n.7; see also Phelps, 629 So. 2d at 306.

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LUCAS, Chief Judge, Concurring.
In all fairness to the circuit court, there seems to be little
meaningful difference between the drainage pipe at issue in this case and
the drainage ditch that was at issue in Hunt Land Holding Co. v.
Schramm, 121 So. 2d 697 (Fla. 2d DCA 1960). Nevertheless, I fully
concur with the majority because of the presumption that Marina Walk's
decades-long usage of Maximo's property—running drainage water
through a pipe across Maximo's property and into its boat basin—was
permissive, and Marina Walk presented no evidence to overcome that
presumption. See Downing v. Bird, 100 So. 2d 57, 64 (Fla. 1958) ("[I]n
either prescription or adverse possession, the use or possession is
presumed to be in subordination to the title of the true owner, and with
his permission and the burden is on the claimant to prove that the use
or possession is adverse."); Dana v. Eilers, 279 So. 3d 825, 831 (Fla. 2d
DCA 2019) ("All the evidence here is consistent with, and reinforces, the
existing presumption of permissive use. Under such facts, there is a lack
of evidence of adversity, and the claimants have thus failed to overcome
the presumption of permissive use afforded under Florida law.").
In Hunt, a man-made ditch had been used for more than forty-five
years by neighboring property owners (both developers, as it happens) for
draining stormwater and runoff into the intracoastal waterway. 121 So.
2d at 699. After the downland developer tried to dam the ditch, the
upland developer sought an injunction based on an alleged prescriptive
easement. The circuit court granted the injunction, and we affirmed. Id.
at 700–01. In so ruling, we noted that the ditch had been consistently
utilized "without objection by anyone concerned" and that "the use was
accepted, acquiesced in, and was treated as necessary and permanent
for drainage of the area through the years, up to the present time." Id.

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at 699, 701. We acknowledged that a prescriptive easement requires
clear and positive proof that the servient estate did not acquiesce in the
use of its property and that a presumption of permissive use must be
overcome by the party claiming the easement.
But then we put a novel gloss on both that burden and that
presumption.
[T]he presumption of permissive use may be overcome by
knowledge imputed to the owner of adverse use by the party
claiming the prescriptive right, that it is not necessary that
this be done by declarations or assertions but it may be
effectuated by use inconsistent with the owner's use and
enjoyment of his lands, and, further, that the use need not be
exclusive but may be in common with the owner or the
public.
Id. at 701. That formulation effectively collapsed the fourth element of
prescriptive easements ("that during the whole prescribed period the use
has been made without the permission of the owner and under some
claim of right other than permission from the owner") into the second
element ("that during the whole prescribed period the use has been
either with the actual knowledge of the owner or so open, notorious and
visible that knowledge of the use is imputed to the owner"). See Dana,
279 So. 3d at 827 (quoting Dan v. BSJ Realty, LLC, 953 So. 2d 640, 642
(Fla. 3d DCA 2007)); accord Downing, 100 So. 2d at 64. Indeed, if
imputed knowledge of some inchoate, inconsistent use is all that's
needed to overcome the presumption by clear and positive proof, we
either have a phantom presumption or an illusory burden. It's difficult—
maybe impossible—to square that aspect of Hunt with what the law of
prescriptive easements requires.
Which may explain why, in two opinions, we have quietly swept
this part of Hunt into a corner. See Dana, 279 So. 3d at 830 n.7

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(distinguishing Hunt and observing that its analysis on inconsistent
usage was "of limited use"); Maj. op. n.4 ("[B]ecause the Hunt opinion
failed to identify the evidence supporting the conclusion regarding
inconsistent use, subsequent decisions from this court have recognized
that it is of limited use."). I would turn up the volume on these footnotes.
Absent some compelling argument to treat water drainage differently
than all other prescriptive easements,5 we should either recede from this
aspect of Hunt or clearly proclaim it was just a "one-off" and confined to
the unique facts of the case.
Opinion subject to revision prior to official publication.
5 To date, no such argument has been suggested.