GULF OIL REALTY COMPANY v. DEPARTMENT OF TRANSPORTATION (1997)

District Court of Appeal of Florida,Fifth District.

GULF OIL REALTY COMPANY, etc., and Janak Shah, etc., Appellants, v. DEPARTMENT OF TRANSPORTATION, etc., et al., Appellees.

Nos. 95-3287, 96-9.

Decided: January 10, 1997

David A. Higley, of Higley & Barfield, P.A., Maitland, for Appellant, Gulf Oil Realty Company. Shawn G. Rader, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellant, Janak Shah. Thornton J. Williams, General Counsel and Marianne Trussell, Assistant General Counsel, Tallahassee, for Appellees.

We reverse the order dismissing appellant's claim against the State Department of Transportation [“DOT”] for a way of necessity. The three grounds advanced by DOT below and on appeal will not support dismissal with prejudice. Consistent with South Florida Water Management District v. Layton, 402 So.2d 597 (Fla. 2d DCA 1981), we conclude that sovereign immunity does not bar a claim for a way of necessity pursuant to section 704.01(1), Florida Statutes. Nor can it be said, due to the sparseness of the allegations in the complaint, that appellant's claim is time barred. Finally, we cannot agree that the City of Orlando is an indispensable party to the appellant's way of necessity claim. Although appellant's way of necessity claim may ultimately fail, the grounds asserted by DOT for dismissal at this stage are not legally sufficient.

REVERSED and REMANDED.

GRIFFIN, Judge.

DAUKSCH and THOMPSON, JJ., concur.

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