Summary
striking an order because the owner of the servient estate was not entitled to construct a privacy fence directly on an easement, but only on his own property immediately westerly thereof
Summary of this case from Borowski v. FerrerOpinion
No. 92-2392.
July 30, 1993. Rehearing Denied August 20, 1993.
Appeal from the Circuit Court, Brevard County, Charles M. Holcomb, J.
Mark S. Peters of Stevens, Peters Greenfield, P.A., Merritt Island, for appellant.
Henry J. Martocci, Cocoa, for appellees.
The final judgment entered by the trial court on May 12, 1992, was in error in respect to paragraph 6 thereof, which reads:
6. The owner of the land subject to the easement (servient estate-Oldham) may utilize the easement in any manner not interfering with the defendant's use of the easement or acting to devalue his property or to create a poor aesthetic appearance. The defendant is not entitled to access onto his property from any point along the property line but only a reasonable access entrance into his property. Plaintiffs are not forbidden to plant foliage or to construct a nice privacy wall or fence in harmony with the aesthetic appearance of defendant's property along the easement boundary for privacy so long as it does not obstruct or unreasonably interfere with the defendant's right of access to his homestead via the easement.
The foregoing paragraph is stricken in its entirety for the reason that the defendant below, James Anderson, is entitled to unrestricted access to parcel 1 of his property via the disputed easement and the plaintiffs, John E. Oldham and K. Elsie Oldham, are not entitled to construct a privacy fence on the easement but may do so on their own property immediately westerly thereof. See Hoff v. Scott, 453 So.2d 224 (Fla. 5th DCA 1984).
We also find that the trial judge below erred in his failure to award attorney's fees to the defendant Anderson pursuant to section 57.105, Florida Statutes (1991). Accordingly, we strike paragraph 6 of the final judgment, we reverse the denial of attorney's fees to the defendant, and we remand for a determination by the trial court of an appropriate attorney's fees award for Anderson.
REVERSED AND REMANDED.
COBB and THOMPSON, JJ., concur.
HAUSER, J.C., Associate Judge, concurs specially with opinion.
Dr. Anderson has an easement on property owned by Mr. Oldham. In 1990 Mr. Oldham constructed a fence on said easement causing Dr. Anderson to file suit. Dr. Anderson prevailed and the 1990 final judgment stated that Dr. Anderson's right of . . . "ingress and egress to the property described therein (was) without limitation as to where plaintiff may enter or leave the property . . ."
In 1991 Mr. Oldham filed a suit claiming that Dr. Anderson had misused the ingress egress easement, had stored junk cars on his property and had used his property for commercial purposes. Mr. Oldham asked the trial court to terminate the easement. Significantly, he did not ask the court for the right to build a privacy fence. The trial court ruled in favor of Dr. Anderson and permitted him to continue using the easement, but denied Dr. Anderson's request for attorney's fees under section 57.105(1), Florida Statutes.
Had the learned trial judge stopped there the case would probably not have been appealed by Dr. Anderson. Unfortunately, trying to act as would Solomon, the trial judge ruled that Mr. Oldham could build a privacy fence along the easement so long as it did not unreasonably restrict Dr. Anderson's access to the easement. Dr. Anderson appealed claiming that he was entitled to total access to the easement, based on the first judge's order. We agree and reverse.
All the relief actually pled for and sought by Mr. Oldham was denied by the trial judge. The issue of egress and ingress had previously been decided in the former lawsuit, making the second lawsuit res judicata. Mr. Oldham admitted that it was a personal "hate type action." Based on the record, the second lawsuit filed by Mr. Oldham was frivolous both as to law and fact. As a result, based on section 57.105(1), Florida Statutes, the trial court erred in not awarding attorney's fees to Dr. Anderson at the trial level.
Southford v. Hatton, 566 So.2d 527 (Fla. 2d DCA 1990) (if second suit is res judicata, prevailing party is entitled to attorney's fees under Florida Statute 57.105(1)). See also Kreager v. Glickman, 519 So.2d 666 (Fla. 4th DCA 1988); Ford v. Miller, 506 So.2d 464 (Fla. 2d DCA 1987).