Roebuck v. Sills

• Decision Date: 07 October 2020
• Docket Number: No. 1D19-1434,1D19-1434
• Citation: 306 So.3d 374
• Parties: Julian W. ROEBUCK, Appellant/Cross-Appellee, v. Vernon D. SILLS, III and Sara Sills, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

306 So.3d 374

Julian W. ROEBUCK, Appellant/Cross-Appellee, v. Vernon D. SILLS, III and Sara Sills, Appellees/Cross-Appellants.

No. 1D19-1434

District Court of Appeal of Florida, First District.

October 7, 2020

Rehearing Denied November 23, 2020

Justin I. Remol and John K. Reed of Remol Reed, P.A., Destin, for Appellant/Cross-Appellee.

William L. Ketchersid and David L. Powell of Ward & Ketchersid, P.A., Destin, for Appellees/Cross-Appellants.

Osterhaus, J.

Julian W. Roebuck sued his neighbors Vernon and Sara Sills over a noisy pool pump and annoying exterior lighting. Roebuck won at trial on his claims of common law nuisance. The Sillses, however, prevailed in defense of Roebuck's claims that they had violated restrictive covenants set forth in homeowner association documents governing their community. The trial court didn't award attorney's fees and costs to either party. Roebuck appealed and the Sillses cross-appealed. Each argues that they should have prevailed across-the-board and been awarded their fees and costs. We affirm, except for reversing in favor of the Sillses on their claim for attorney's fees and costs under § 720.305(1), Florida Statutes.

I.

Roebuck and the Sillses live next door to each other in an Okaloosa County community. At some point, the Sillses installed two variable speed pumps and a heater for their pool on the side of their house very close to Roebuck's master bedroom window. The noise from this equipment disturbed Roebuck's ability to sleep and enjoy his property. The Sillses also installed exterior lighting that disturbed Roebuck because it came on throughout the night.

Roebuck complained to the Sillses, but the parties couldn't resolve their issues. Roebuck ultimately filed a five-count complaint in circuit court alleging that the Sillses’ pool equipment and lighting created a common law nuisance and violated the governing Declaration of Covenants, Conditions, Restrictions and Easements ("Declaration"), which the homeowner association enforced. Roebuck sought injunctive relief and damages, as well as attorney's fees and costs pursuant to § 720.305.

The litigation proceeded to a four-day bench trial that ended with a split decision. On the common law nuisance claims, counts III and IV of the complaint, the court found Roebuck to be entitled to damages and injunctive relief. The court awarded Roebuck $10,280 to build a wall on his property to abate the noise and enjoined the Sillses from using their exterior lighting and pool equipment between the hours of 9:30 p.m. and 9:30 a.m., except for once a year when their pool could be acid washed for up to fortyeight continuous hours. On counts I, II, and V, the court ruled that the Sillses had not breached the restrictive covenants set forth in the Declaration and that the parties would be responsible for their own attorney's fees and costs.

II.

The parties seek review of the trial court's conclusions on the common law nuisance claims, the claims that the Sillses violated the restrictive covenants found in the Declaration, and each party's claim for attorney's fees and costs.

A.

Taking the nuisance claims first, neighbors have a common law duty not to interfere with, or to render each other unsafe or insecure in life or in the use of their property. See Windward Marina, L.L.C. v. City of Destin , 743 So. 2d 635, 639 (Fla. 1st DCA 1999) (citing Prior v. White , 132 Fla. 1, 180 So. 347, 355 (1938) ). Ordinary disturbances and annoyances don't typically give rise to actionable nuisance claims. See Clark v. Bluewater Key RV Ownership Park Prop. Owners Ass'n , 226 So. 3d 276, 283 (Fla. 3d DCA 2017) (citation omitted). But "noise can be a nuisance." City of Jacksonville v. Schumann , 199 So. 2d 727, 729 (Fla. 1st DCA 1967) (involving low-flying aircraft); see also Clark , 226 So. 3d at 279 (commercial vehicle noise); Lake Hamilton Lakeshore Owners Ass'n v. Neidlinger , 182 So. 3d 738, 741 (Fla. 2d DCA 2015) (airboats); Saadeh v. Stanton Rowing Found. Inc ., 912 So. 2d 28, 29, 31 (Fla. 1st DCA 2005) (recreational facility); Erwin v. Alvarez , 752 So. 2d 1261, 1262 (Fla. 2d DCA 2000) (chickens and roosters); Rae v. Flynn , 690 So. 2d 1341, 1343 (Fla. 3d DCA 1997) (barking dogs); Exxon Corp., U.S.A. v. Dunn , 474 So. 2d 1269, 1272 (Fla. 1st DCA 1985) (industrial-plant noise and vibrations); Davis v. Levin , 138 So. 2d 351, 352 (Fla. 3d DCA 1962) (air conditioning equipment). "An adjoining property owner cannot maintain a ... nuisance on his property which is injurious to the ... property rights of an adjacent landowner and not be answerable [for it]." McClosky v. Martin , 56 So. 2d 916, 918 (Fla. 1951).

There is "no exact rule or formula" for deciding when a neighbor's noise rises to the level at which a court will grant relief. See Rae , 690 So. 2d at 1343. Rather, courts evaluate nuisance actions by considering the "reasonableness of the use, ‘as such use affects the ... private rights of others ... [as] determined from the facts and circumstances of particular cases.’ " Saadeh , 912 So. 2d at 32 (quoting Cason v. Fla. Power Co ., 74 Fla. 1, 76 So. 535, 536 (1917) ). The application of common law nuisance standards mostly "presents an evidentiary issue" where a factfinder's conclusions must be supported by competent, substantial evidence. See Clark , 226 So. 3d at 283.

In this case, the trial court held a four-day bench trial on Roebuck's claims. The parties haven't supplied a trial transcript, so we don't know the ins and outs of the evidence. The final judgment doesn't detail much about the evidence, but it indicates that various fact and expert witnesses participated at trial. According to the final judgment, Roebuck asserted nuisance-related harms backed by evidence showing as follows:

Defendants maintain pool equipment on their property which is located twelve to fourteen feet away from the Plaintiff's master bedroom window. Defendants’ operation of their pool equipment, which consists of two variable speed pumps and a pool heater, prevents the full use and enjoyment of the Plaintiff's master suite and the outdoor lanai area. Plaintiff has had to adjust his sleeping schedule and/or relocate to other areas of his home to sleep, approximately two to three times per week since installation of the equipment and cannot enjoy many of the outdoor activities that he once did. Plaintiff has suffered damages as a result of this nuisance, including diminution in value of Plaintiff's property, discomfort, inconvenience, and annoyance, and is entitled to injunctive relief for the same.

In addition, the final judgment says that Roebuck presented testimony that the Sillses’ outdoor lighting would come on outside his bedroom window at all hours of the night. On these claims, the court entered judgment for Roebuck, awarding him damages to compensate for construction of a wall and injunctive relief to abate the noise- and light-related nuisances.

On this record, we don't see a basis for reversing the final judgment on the nuisance claims. From what we can tell in the final judgment, the trial court appropriately weighed the important property interests of both parties—the Sills’ right to exercise dominion on their property by operating their pool, versus Roebuck's right not to have his property invaded by injurious noise and annoying lights. But we don't know all the evidentiary details from the trial. Our review is hamstrung by the lack of a transcript, similar to the situation faced by the Florida Supreme Court in McClosky . See McClosky , 56 So. 2d at 918. And "[n]ot having been favored with a transcript of the testimony taken in the lower court, we must of necessity assume that the essential allegations of [nuisance counts III and IV] were proved by competent testimony." See id.

Along this same line, we cannot say that the trial court got the remedy on the nuisance claims wrong. In his complaint, Roebuck sought "the prospective cost to erect a wall to minimize the nuisance," as well as an injunction to abate the nuisance and "such further relief as the Court deems fair and equitable." Depending on the facts shown at trial, either or both injunctive relief and damages were available to abate the nuisance and mitigate the harmful effects of the noisome pool pump running during the day. See McIntosh v. Myers , 271 So. 3d 159, 161 (Fla. 1st DCA 2019) (recognizing that "courts have the fullest liberty in molding decrees to the necessity of the action" in equitable proceedings) (quoting Circle Fin. Co. v. Peacock , 399 So. 2d 81, 84 (Fla. 1st DCA 1981) ); Maday's Wholesale Greenhouses, Inc. v. Indigo Grp., Inc. , 692 So. 2d 207, 208, 210 (Fla. 5th DCA 1997) (allowing a property owner's nuisance action against city for injunctive relief and related damages to proceed); Rae , 690 So. 2d at 1342 (affirming the entry of a permanent injunction to address a barking-dog problem as the "remedy to accomplish the reduction of neighborhood hostilities by the least restrictive means"); Porter v. Saddlebrook Resorts, Inc. , 596 So. 2d 472, 474–75 (Fla. 2d DCA 1992) (upholding injunctive order in a nuisance action but reversing and remanding for a new trial and concluding that "if the nuisance were abatable, and thus not permanent, the jury was entitled to consider the [plaintiffs’] claimed diminution in the use value of their land and any resultant special damages such as loss of crops"); Burnett v. Rushton , 52 So. 2d 645, 645–46 (Fla. 1951) (upholding an award of injunctive relief and damages for private nuisance of neighbor who operated lawn mower in a noisy manner at an early morning hour close to plaintiff's bedroom, operated radio in a loud tone at various times of day and night, annoyed plaintiff by causing an electric light to be focused on plaintiff's residence at all times of night, and incited dog to bark boisterously and annoy plaintiff); Mercer v. Keynton , 121 Fla. 87, 163 So. 411, 414 (1935) (noting the rule that "equitable and purely...