Horn v. Corkland Corp.

• Decision Date: 06 January 1988
• Docket Number: 87-305,Nos. 87-84,s. 87-84
• Citation: Horn v. Corkland Corp., 518 So.2d 418, 13 Fla. L. Weekly 139 (Fla. App. 1988)
• Parties: 13 Fla. L. Weekly 139 Charles L. HORN and Mary Horn, Appellants/Cross-Appellees, v. CORKLAND CORPORATION, a Florida corporation, as General Partner of Corkscrew Woodlands, Ltd., a Florida limited partnership, and Scarborough Constructors, Inc., a Florida corporation, Appellees/Cross-Appellants. CORKLAND CORPORATION, a Florida corporation, as General Partner of Corkscrew Woodlands, Ltd., a Florida limited partnership, and Scarborough Constructors, Inc., a Florida corporation, Appellants/Cross-Appellees, v. Charles L. HORN and Mary Horn, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 418

518 So.2d 418

13 Fla. L. Weekly 139

Charles L. HORN and Mary Horn, Appellants/Cross-Appellees, v.CORKLAND CORPORATION, a Florida corporation, as GeneralPartner of Corkscrew Woodlands, Ltd., a Florida limited partnership, and Scarborough Constructors, Inc., a Florida corporation, Appellees/Cross-Appellants.

CORKLAND CORPORATION, a Florida corporation, as GeneralPartner of Corkscrew Woodlands, Ltd., a Florida limited partnership, and Scarborough Constructors, Inc., a Florida corporation, Appellants/Cross-Appellees, v.Charles L. HORN and Mary Horn, Appellees/Cross-Appellants.

Nos. 87-84, 87-305.

District Court of Appeal of Florida Second District.

Jan. 6, 1988.

Franklin A. Johnson, Jr. of Smoot, Adams, Corbin, Johnson, & Green, P.A., Fort Myers, for appellants/cross-appellees Charles and Mary Horn.

J. Jeffrey Rice of Goldberg, Rubinstein & Buckley, P.A., Fort Myers, for appellees/cross-appellantsCorkland Corp. and Corkscrew Woodlands, Ltd.

Gary N. Strohauer of Strohauer & Brown, P.A., Clearwater, for appellee/cross-appellantScarborough Constructors, Inc.

THREADGILL, Judge.

Charles and Mary Horn appeal an order vacating a jury award of $25,000 in punitive damages for trespass entered against Corkland Corporation(Corkland) and the exclusion of their evidence of compensatory damages during trial.Corkland appeals the denial of certain jury instructions.The Horns appeal the denial of their motion to tax costs against Corkland and Scarborough Constructors, Inc.(Scarborough) and Corkland appeals the denial of its motion to tax costs against the Horns.Both appeals have been consolidated for review.We affirm the order vacating the punitive damage award and the exclusion of the Horns' evidence of compensatory damages.We therefore need not address the issue of the denial of jury instructions requested by Corkland during trial.We reverse the denial of the motions to tax costs.

The facts of this case are as follows.In 1981 Corkland began developing a park for recreational vehicles on land adjacent to the Horns' property in Lee County, Florida.At some time Corkland realized that a downstream blockage in a stream crossing both properties was causing the land to flood.Corkland decided to alleviate the problem by clearing the waterway.Evidence at trial showed Corkland got written permission from a person he thought was the owner of the Horns' property.There was also evidence indicating that Corkland's project manager was unaware that the waterway crossed the Horns' property.Corkland hired Scarborough to clear the waterway on the Horns' property.In the process, numerous punk trees were destroyed and left in disarray on the property.

Charles Horn sued Corkland in May of 1983 for trespass seeking compensatory and punitive damages.With its answer, Corkland tendered an offer of judgment of $15,000 plus taxable costs.The offer, dated June 16, 1984, was later attached to Corkland's motion to assess costs against the Horns.At the time of the offer of judgment, Scarborough had not been joined as a partydefendant.During discovery, Mary Horn, wife of Charles Horn, was added as a partyplaintiff, and Scarborough was added as a partydefendant.

At the close of the Horns' case in chief, the court granted Scarborough's motion for directed verdict as to punitive damages and reserved ruling on Corkland's motion for directed verdict as to punitive damages.The court directed a verdict in favor of the Horns finding both Corkland and Scarborough guilty of trespass and awarding the Horns nominal damages of $1.00.The jury ultimately returned a verdict for punitive damages in favor of the Horns and against Corkland in the amount of $25,000.Following the trial the court granted Corkland's renewed motion for directed verdict, vacated the jury award of $25,000 and entered judgment against Corkland and Scarborough in favor of the Horns in the amount of $1.00 as nominal damages for trespass.The court then denied the Horns' and Corkland's motions to tax costs and both parties appealed.

Upon review of the facts in this case, we find the evidence clearly supports the trial judge's finding that the trespass was committed by mistake and not by willful and wanton misconduct on the part of the Corkland or Scarborough.Under such circumstances, this court has held that punitive damages are not appropriate.SeeWinn & Lovett Grocery v. Archer, 171 So. 214(Fla.1936);Clark v. Conner, 441 So.2d 674(Fla. 2d DCA1983);Florida Power Corp. v. Scudder, 350 So.2d 106(Fla. 2d DCA1977).In Stearns & Culver Lumber Co. v. Cawthon, 56 So. 555(Fla.1911), the supreme court held that only if the trespasser makes absolutely no effort to ascertain the boundary line prior to committing the trespass would punitive damages be allowed.The evidence in this case shows Corkland tried to ascertain the true owner of the property.We therefore affirm the trial court's order vacating the jury award of punitive damages.

During trial, the Horns proffered the testimony of a local nursery man who testified as to the costs of cleaning up the property after the trespass.No other testimony of compensatory damages was offered by the Horns.The court denied the proffer.

The usual measure of damages for trespass to real property is the difference in value of the...