CORTEZ – Twelfth Judicial Circuit Court Judge Edward Nicholas denied motions to dissolve lis pendens claims last week that were filed against the owners of three properties located along the Hunters Point-owned canal in Cortez.
A lis pendens claim notifies potential buyers and others of a pending lawsuit involving a property and its owners. If someone purchases a property with a lis pendens attached, the new owner inherits the lawsuit responsibilities. A lis pendens can impact the ability to sell a property, obtain financing or obtain title insurance.
The lis pendens were filed as part of an ongoing lawsuit that attorney Susan Martin filed in June 2022 on behalf of Hunters Point developer Marshall Gobuty and his Cortez Road Investments and Finance (CRIF) ownership group. Gobuty and CRIF are currently developing the Hunters Point community that includes 86 solar-powered-homes and 49 proposed boat slips.
The lawsuit names Jonathan and Sheila Graham, George and Wendy Kokolis, Mark Ibasfalean, Mary Norman, Timothy Fitzpatrick and Jacquelyn Shepard as defendants. The defendants’ properties are located across the canal from the Hunters Point property.
In May, Martin filed a lis pendens on the dock and boat lift associated with the property at 4305 126th St. W. owned by the Grahams; she filed another against the boat lift the Kokolis’ installed in the west end of the canal in 2022 by their vacant lot at 4319 126th St. W. In June, Martin filed a lis pendens on the dock and lift associated with Ibasfalean’s property at 4217 126th St. W.
In early October, Martin filed amended lis pendens that assert that CRIF also owns the canal bulkheads (seawalls) and 5.7 to 3.3 feet of the uplands landward of the bulkheads used by the Graham, Kokolis and Ibasfalean families.
The lawsuit alleges the defendants installed and maintain docks, lifts and other structures in the canal without authorization from the canal owner. Most of the docks and lifts were installed before Gobuty purchased the Hunters Point property and man-made canal in 2016. The lawsuit alleges the defendants’ docks and lifts extend more than 25% into the canal, which, if true, would violate Manatee County dock regulations. The defendants deny their docks and lifts extend more than 25% into the canal – or did when installed with county-issued permits.
Other canal-side properties are not named in the lawsuit and Gobuty has repeatedly stated he doesn’t want to deny canal access to the defendants and other canal-side homeowners. He said he wants all boats and lifts located completely within the 25% threshold. He also wants dock owners to obtain proper liability insurance and enter into use agreements with CRIF.
CRIF filed the lawsuit days after filing a civil lawsuit against MHC Cortez Village LLC, the owners of the Cortez Village Marina east of the Hunters Point property. That still-pending lawsuit seeks to prohibit marina clients from using the CRIF-owned portion of the canal that provides access to the Intracoastal Waterway.
CRIF filed that lawsuit in response to the marina owners’ 2021 challenge of the Southwest Florida Water Management District-issued permit that initially allowed the proposed Hunters Point docks. The marina owners alleged the docks would narrow the canal and significantly impact navigation for marina clients and others.
In May, the water district’s governing board issued a final order in support of an administrative law judge’s recommended order that states the new docks would not significantly impact navigation and should be allowed.
The marina owners appealed the final order and the dock construction remains on hold until the appeal is resolved.
In September, Martin filed the amended lawsuit complaint that asserts that CRIF also owns the bulkheads and portions of the upland properties along the canal.
Lis Pendens
Nicholas issued his ruling during a virtual hearing on Oct. 30 that pertained specifically to motions filed to dissolve the lis pendens.
Attorneys Ivan Reich and Steve Conteaguero represented CRIF. Attorney Richard Green represented the Kokolis’ and attorney Fred Moore represented the Grahams. The attorneys spent most of the hearing debating the merits and legality of the lis pendens claims. There was also discussion, but no ruling, on CRIF’s bulkhead and upland ownership claims.
“Cortez Road Investment and Finance is going after some landowners to bully them off a canal to make them remove boat structures, boat lifts and watercraft under the idea that the landowners must come to CRIF and get permission to utilize the canal,” Green said.
Green doesn’t dispute CRIF’s right to file lis pendens on the canal and items placed in it, but he disputes the notion that the lis pendens can include the uplands that CRIF claims to own landward of the bulkhead the Kokolis’ use.
Moore agreed with Green’s assertions. He also said the lis pendens filed against the Grahams could cause substantial financial harm by impacting their ability to sell their home and property in a declining real estate market. Moore suggested that CRIF be required to secure a lis pendens bond that would protect the Grahams from a “wrongful lis pendens claim.”
Reich said property deeds and a recently completed land survey serve as duly-recorded instruments that support the lis pendens’ legality.
When discussing the Florida Statutes applicable to the historic use of someone else’s land, Reich said, “What is the dispute here? It’s a trespass action. You’ve come into our property and you’ve built stuff. It’s an ejectment action and we’re seeking to kick you off that portion of the property on which you’ve infringed. I think the defendants are trying to assert squatters’ rights. It doesn’t work that way anymore.”
When denying the motions to dissolve, Nicholas said, “While I’m sympathetic to the Grahams and the challenges that may result from the lis pendens, that’s largely the purpose – to not get into a circumstance where a third-party purchaser claims they weren’t aware of an issue of this nature. I reserve jurisdiction for determining what bond, if any, is appropriate. As to whether the lis pendens are appropriate, that’s not a particularly close call.”
