Jewett v. Leisinger, s. 94-1010

• Decision Date: 24 May 1995
• Docket Number: Nos. 94-1010,94-1553,s. 94-1010
• Citation: 655 So.2d 1210
• Parties: 20 Fla. L. Weekly D1244 Louise G. JEWETT, Appellant, v. Cliff LEISINGER and Jo Ellen Leisinger, Appellees,
• Court: Florida District Court of Appeals

Page 1210

655 So.2d 1210

20 Fla. L. Weekly D1244

Louise G. JEWETT, Appellant, v. Cliff LEISINGER and Jo Ellen Leisinger, Appellees,

Nos. 94-1010, 94-1553.

District Court of Appeal of Florida Fourth District.

May 24, 1995.

Kenneth A. Marra of Nason, Gildan, Yeager, Gerson & White, P.A., West Palm Beach, for appellant.

John M. Jorgensen of Scott, Royce, Harris, Bryan, Barra & Jorgensen, P.A., Palm Beach Gardens, for appellees.

GUNTHER, Judge.

Appellant, Louise G. Jewett, plaintiff below (Jewett), appeals a summary judgment entered in favor of the appellees, the Leisingers, and appeals an order awarding the Leisingers attorney's fees. Because genuine issues of material fact exist regarding abandonment, we reverse.

Jewett is the owner of a single family home located in the Miramar subdivision in West Palm Beach. The Leisingers live in a single family home on a parcel of real property just north of Jewett's property. In between the two parcels runs a shell rock road running east and west approximately fourteen feet wide. The owners of six of the eight lots located on Jewett's block executed easement deeds in favor of the City of West Palm Beach for the northernmost fourteen feet of their property. Included among these were Jewett's predecessors in interest, the Widemans. The easement deed executed by the Widemans provided, in pertinent part:

WHEREAS, the said party of the second part [the City] desires to construct a road, street or public highway, together with curbs, gutters and sidewalks, across and upon the property ...

NOW THEREFORE, the said parties of the first part [the Widemans] ... have granted, bargained, sold and conveyed and do hereby grant, bargain, sell and convey unto the said party of the second part, and its successors, the perpetual right and easement to enter upon, excavate, construct, build and maintain roads, streets or public highways, together with curbs, gutters, and sidewalks upon and across the above described tract or parcel of land, ... and the further perpetual right and easement to enter upon, occupy and use said tract or parcel of land, or any portion or portions thereof, for public street or sidewalk purposes.

Thereafter, the easement deed was properly recorded in the public records on July 19, 1956.

In 1964, Jewett purchased said property, and as such, did so with constructive notice of the recorded easement. Notwithstanding the stated purpose of the deed, no public road was ever constructed by the City of West Palm Beach across the fourteen foot strip of property. Further, in a letter, a director of engineering for the City informed Jewett's neighbor that public improvements on the property were prevented by the two lot owners who refused to grant the City an easement in 1955. Moreover, a City engineer was uncertain whether the land in question could accommodate curbs, gutters and sidewalks.

For many years after the execution of the easement deed, the Leisingers, as well as their predecessors in interest, used both the shell rock road as one access route and an additional road as another access route to their property. However, in 1992, the Leisingers applied for a building permit with the City in connection with plans to renovate their house. Pursuant to the plans, the Leisingers intended to close the additional driveway and use the easement covering the shell rock road as their sole means of ingress and egress. The City ultimately granted the Leisingers a remodeling permit.

Subsequently, Jewett instituted suit against the Leisingers and the City of West Palm Beach seeking a declaration that the easement was invalid. Both the Leisingers and the City raised the abandonment issue in their respective answers. The trial court eventually granted the Leisingers' motion for summary judgment specifically finding that the City had not abandoned its rights under the easement deed, and, as a matter of law, still enjoyed the easement. After entry of final summary judgment, the Leisingers moved for an award of attorney's fees pursuant to section 57.105, Florida Statutes (1993). The trial court ultimately granted the Leisingers' motion for attorney's fees and awarded the agreed upon sum of $7,455.50.

Summary judgments are governed by rule 1.510(c) of the Florida Rules of Civil Procedure. This rule requires the party moving for summary judgment to conclusively show an absence of any genuine issue of material fact and obligates the trial court to draw every reasonable inference in favor of the non-moving party. Moore v. Morris, 475 So.2d 666 (Fla.1985); Lenhal Realty, Inc. v. Transamerica Commercial Fin. Corp., 615 So.2d 207 (Fla. 4th DCA 1993). If the evidence raises any issues of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact. Moore, 475 So.2d at 668.

In order for the abandonment of an express easement to take place, all of the elements of equitable estoppel must be proven. Wiggins v. Lykes Bros. Inc., 97 So.2d 273 (Fla.1957). The essential elements of the doctrine of estoppel are: (1) a representation by the party estopped to the party claiming the estoppel as to some material fact, which representation is contrary to the conditions of affairs later asserted by the estopped party; (2) a reliance upon the representation by the party claiming the estoppel; and (3)...