Bechhold v. Mariner Properties, Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: ALTENBERND; CAMPBELL, A.C.J., and DANAHY
• Citation: Bechhold v. Mariner Properties, Inc., 576 So.2d 921, 16 Fla. L. Weekly 808 (Fla. App. 1991)
• Decision Date: 27 March 1991
• Docket Number: No. 90-02370,90-02370
• Parties: 16 Fla. L. Weekly 808 Robert A. BECHHOLD and Marianne T. Bechhold, Appellants, v. MARINER PROPERTIES, INC., Appellee.

Page 921

576 So.2d 921

16 Fla. L. Weekly 808

Robert A. BECHHOLD and Marianne T. Bechhold, Appellants, v. MARINER PROPERTIES, INC., Appellee.

No. 90-02370.

District Court of Appeal of Florida Second District.

March 27, 1991.

Robert P. Henderson of Simpson, Henderson & Savage, Fort Myers, for appellants.

J. Jeffrey Rice of Goldberg, Goldstein & Buckley, P.A., Fort Myers, for appellee.

ALTENBERND, Judge.

Robert and Marianne Bechhold appeal a final summary judgment in favor of Mariner Properties, Inc., in their action to abate an alleged private nuisance. Because the record before the trial court was not adequate to permit a summary judgment, we reverse.

Mr. and Mrs. Bechhold purchased a home on Sanibel Island, Florida, in 1983. Their home is adjacent to the Dunes Country Club, which is owned and operated by Mariner Properties. At the time that the Bechholds' purchased their home, their backyard was very close to the third tee on the golf course and golfballs rarely fell in their backyard. In his affidavit, Mr. Bechhold estimated that twelve golfballs per year entered the yard between 1983 and 1988.

In 1988, Mariner Properties decided to reconfigure this golf course. Apparently no contractual agreement existed between the Bechholds and Mariner Properties to prevent this reconfiguration. As a result of the reconfiguration, the Bechholds' backyard is now approximately 170 yards from the blue, professional tee. When it redesigned the golf course, Mariner Properties was aware that the fairway behind the Bechholds' house would be "tight." From the tee, there is a row of houses on the left, including the Bechholds' house. On the right, there is a lake which bounds the entire fairway. The hole is a par five and 462 yards from the blue tee. A direct shot down the fairway passes over the edge of the lake, approximately 120 yards from the blue tee. The fairway is about 50 yards wide in the vicinity of the Bechholds' home. A ball which drifts a few degrees to the left on a shot from the tee ends up in the Bechholds' backyard.

Mr. Bechhold estimates that since the golf course reopened, approximately one thousand balls have been entering his backyard per year. His affidavit contains photographs showing numerous dents in his screen enclosure from errant golfballs. He has reinforced the screen enclosure with hardware cloth, a heavyduty wire mesh. The balls hit the hardware cloth with sufficient force that some have become embedded in the wire of the hardware cloth. Three windows have been broken by balls, and Mr. Bechhold has replaced standard glass with bulletproof glass. He and his wife are afraid to use parts of their yard for fear of being hit by a ball. Balls have damaged their roof and their solar heating system. They cannot leave their car parked in their driveway. They submitted affidavits to the trial court establishing that some of their neighbors have experienced similar problems.

During the design phase of the

reconfiguration, the golf course architects retained by Mariner Properties considered reversing the direction of play in this area. They rejected this concept because most golfers are right-handed and are prone to slicing the ball. A slice curves to the right. Thus, if the course had been designed in the opposite direction, they believed that the Bechholds' problems would be worse.

The architects designed bunkers and mounds on the third hole to minimize the number...