Jan. 28 hearing focused on motion asking the court to dismiss the remainder of Cosentino’s amended lawsuit dating to early 2017
During a Jan. 28 hearing in Sarasota, an attorney for property owners on North Beach Road cited a number of prior court cases in contending that Siesta Key resident Michael Cosentino is not entitled to use a vacated segment of the road “for thoroughfare purposes,” as Cosentino has maintained.
Appearing before 12thJudicial Circuit Court Judge Andrea McHugh, M. Lewis Hall III of the Williams Parker firm in Sarasota said that Cosentino is wrong in asserting that the 1926 Mira Mar Beach Subdivision plat that included Beach Road gives Cosentino “a private right of ingress and egress” over the section of North Beach Road that the Sarasota County Commission vacated in May 2016.
Because records show that the county maintained North Beach Road consistently for decades, Hall pointed out, the county owned the road, based on state law. All other easements and plats were “wiped out,” Hall said.
On Aug. 15, 2019, Hall filed a motion for partial summary judgment, asking the court to drop the remainder of the Second Amended Complaint Cosentino filed against the county in February 2017. Hall represents Dennis and Wendy Madden, who were among three sets of North Beach Road property owners who petitioned the county for the road vacation in 2016. The court allowed the Maddens to intervene in the case Cosentino originally filed in June 2016, when Cosentino contended that the County Commission violated a policy in the county’s Comprehensive Plan that prohibited the vacation of any segments of road along waterways.
A Circuit Court judge who previously presided over the case dismissed all the counts against the county, taking final action in 2018.
Following Hall’s Jan. 28 arguments, Cosentino spent close to 75 minutes on a variety of issues — including alleging that the Office of the County Attorney had colluded with attorneys for the Maddens and another set of the North Beach Road vacation petitioners — the Caflisch family. Finally, Circuit Judge McHugh directed him to focus on the arguments he had made in a formal response filed with the court the day before the hearing.
Cosentino contended that case law Hall cited was not applicable to the North Beach Road situation. Cosentino maintained that the 1926 plat made it clear that, as an owner of property at 10 Beach Road, he has the right to travel the entire length of North Beach Road, from Avenida Messina to Columbus Boulevard, including the vacated stretch.
McHugh told the parties she would try to rule on the Maddens’ motion prior to a Feb. 18 hearing scheduled on another issue pertaining to the North Beach Road case. During that hearing, she will consider arguments on a joint motion filed by Sarasota County, the Maddens and the Caflisches, asking the court to issue a formal dismissal of complaints involving two Sarasota County Charter amendments that Cosentino wrote. Both amendments won voter approval during the November 2018 General Election. One would revoke the North Beach Road vacation or force the county to reacquire the road segment. The second amendment would ensure no future vacation of a county roadway with so much as a “waterfront vista.”
With McHugh having to handle a family emergency last year, Circuit Court Judge Hunter Carroll conducted a hearing and then ruled in late October 2019 that the first amendment contravened state law and that the first sentence of the second amendment — regarding prohibition of certain road vacations in the future — should be stricken. He said that the opening sentence of the second amendment also violated state law in regard to authority vested with county commissions.
A narrowing of points
At the outset of his Jan. 28 presentation, attorney Hall told McHugh that, unless she wanted him to do so, he would not revisit the history of Cosentino’s litigation against the county over the commission’s May 11, 2016 North Beach Road vacation vote.
“We’ve been here [for four years],” Hall said. “I really don’t want to waste time. “
“I would appreciate, for both sides, that today’s time be used on the narrow [issues] before the court,” McHugh responded.
Two sections of the Florida Statutes (F.S.) are relevant to his argument, Hall continued. F.S. 95.361.1, he said, makes it clear that when a road constructed by a county has been maintained or repaired continuously for four years by the county, “the road shall be deemed to be dedicated to the public,” instead of private property owners.
“In 1974, the county actually built this road [and] paved this road,” Hall said of North Beach Road. The county resurfaced the road in January 1982, he continued, and inspected it in July 2003 and in June 2016, according to county documents. In 2012, he further noted, the county paid $226,000 to repair damage on North Beach Road resulting from Tropical Storms Debby and Isaac.
Cosentino later countered that he had a copy of a letter that included complaints from the Caflisch family about the lack of maintenance for 10 years on the part of the road in front of their property.
Hall also pointed out to McHugh that Cosentino has contended that because the county never filed a copy of a map of the road with the Sarasota County Clerk of the Circuit Court and County Comptroller, then the county’s ownership was moot, Hall pointed out. Cosentino had based his understanding on research Cosentino had undertaken, Hall noted.
However, Hall cited a May 2017 Florida First District Court of Appeal case called Mathers v. Wakulla County to emphasize that “the filing of a map … is not necessary …”
Hall explained that Cosentino also has argued that he has “an irrevocable property right” to use of all of North Beach Road because he owns the lot at 10 Beach Road, near the intersection of Avenida Messina.
However, case law says that Cosentino would have to own land that abutted the vacated section of North Beach Road for that argument to be valid, Hall added. “The Maddens do own abutting [parcels] on both sides [of the vacated road segment]. Mr. Cosentino does not.”
“Those are actually six separate lots that are within that tract,” he added, showing McHugh an aerial map that depicted the Maddens’ parcels.
Then Hall pointed to Cosentino’s argument about the 1926 Mira Mar Beach Subdivision plat that included the area where North Beach Road lies. Cosentino has quoted language from that plat regarding the reserving of rights to the property owners. Yet, Hall continued, Florida case law “makes it abundantly clear that simply a reservation of all rights is not sufficient to reserve specific rights,” as in the right to travel on a portion of a road that a county has vacated. The Mira Mar Beach Subdivision plat language would have had to specifically state that such a right was reserved to all the owners of property on the road, Hall stressed.
Moreover, Hall told McHugh, “such reservations of rights are disfavored in the law.” He cited another case,Dade County v. North Miami Beach, in making that argument.
Over the past four years, Hall pointed out, “Mr. Cosentino has yet to produce [any documentation] to show he got some sort of an easement over the vacated segment of North Beach Road. I don’t think it exists.”
An alleged history of judicial errors and attorneys’ fraud
Last summer, McHugh agreed to a motion Cosentino had filed, asking that she allow him to represent himself — to act pro se — as his Circuit Court litigation continued.
He acknowledged to McHugh on Jan. 28 that, while he has learned much about the law since he filed the original case in 2016, he still does not understand certain points of procedure.
The first relevant issue arose almost immediately after Hall began his arguments, when Hall referenced documents he had provided to McHugh prior to the hearing.
“I didn’t get that [binder],” Cosentino said.
“We gave Mr. Cosentino copies of everything we sent to the court,” Hall told McHugh.
“When?” Cosentino asked.
Hall replied that that was done when he filed the motion for the Maddens in August 2019.
“That’s simply not true,” Cosentino said.
“Everything that we have filed we have copied to other counsel and Mr. Cosentino,” Hall responded. The court has a copy of the letter showing that, he added.
Then Cosentino complained that he did not have copies of highlighted materials in the binder delivered to McHugh. His understanding from an attorney who previously represented him was that he was supposed to get copies of any documents opposing counsel provided to the court that had been highlighted, Cosentino insisted. “And I’m not trying to be a jerk, either.”
After checking through the binder, McHugh told him nothing was highlighted.
“I apologize,” Cosentino told her.
“You don’t have to apologize,” McHugh replied.
When Hall concluded his presentation, Cosentino told McHugh, “I’m going to start off real quickly by raising materially disputed facts,” which would make it impossible, under Florida Rules of Civil Procedure, for her to issue a summary judgment order in response to the Maddens’ motion.
Cosentino began showing her an aerial map that, he contended, proved that county staff illegally had extended the vacated segment of North Beach Road so it encompassed 373 feet, instead of 357 feet. The latter figure was cited by an attorney for the road vacation petitioners during the May 2016 County Commission public hearing.
McHugh then asked Hall whether he had seen the exhibit.
“Your honor,” Hall replied, “we’ve never seen this before.”
McHugh explained to Cosentino that any evidence he presented that day had to have been filed with the court prior to the hearing. Cosentino could argue points only “about the facts that are before the court,” she stressed. “What I can’t do is accept this new drone photograph. … Procedurally, I can’t.”
Then Cosentino said he would begin again.
He gave Hall a copy of another document, which showed a statement that the attorney for the Maddens had made during the road vacation hearing. That attorney was Charles D. Bailey III, who also is with the Williams Parker firm.
Hall objected as Cosentino started to discuss the statement. “It’s hearsay,” Hall pointed out.
“For that to be before the court,” McHugh reminded Cosentino, he would have had to have filed an affidavit or exhibit before the hearing began.
Cosentino told her, “I kept my mouth shut” early on, when she agreed with Hall that it would not be necessary that day for him or Hall to talk about other issues in the case.
“Everything that has happened essentially since at least 2011 has been fraud, and there has actually been collusion between the Maddens’ attorneys, the Caflisches’ attorneys and the county attorney to break all of the laws necessary to get us to this point,” Cosentino continued.
The Circuit Court judge who formerly presided over the case — Judge Frederick P. Mercurio — had made numerous errors, Cosentino added.
Before the next hearing in the case — set for Feb. 18 — Cosentino told McHugh he planned to file a third amended complaint. “The court has made so many errors in every opinion.”
He added that the county also had failed all along to provide him documents he had requested as part of the discovery process.
“You came into this, what, three years down the road, and I’m trying to educate you,” Cosentino told McHugh at one point.
Later, he added, “For four years now I’ve been protecting the public from the county. That’s not the way it’s supposed to be … There’s a heck of a lot of stuff that you’re not aware of.”
McHugh assured Cosentino that she had read through the entire record of the litigation and was fully aware of all the issues.
Finally, McHugh told Cosentino, “What I’d like you to do now is direct your argument” to the response he had filed to the Maddens’ motion for partial summary judgment. She asked Cosentino to focus on “whether the evidence that the court is allowed to consider today proves [Cosentino’s contention about his right to travel the vacated portion of North Beach Road].”
When Cosentino suggested he would file a new motion, asking for a rehearing of the Maddens’ motion before the court that day, McHugh responded, “I’d have to have a really good reason why a rehearing would be appropriate.”
“I understand,” Cosentino told her.
“You’ve been in my court quite a few times now,” McHugh said. “And I’ve told you over and over again that you have to comply [with the Florida Rules of Civil Procedure]. … Just because you don’t have an attorney doesn’t mean —“
“That the rules don’t apply,” Cosentino finished the sentence for her.
“Let’s acknowledge that you’re somewhat savvy in a courtroom at this point,” McHugh said. “You’ve been through quite a lot of litigation.”