Sand Lake Shoppes Fam. v. SAND LAKE COURT., 5D01-1534.

• Decision Date: 05 April 2002
• Docket Number: No. 5D01-1534.,5D01-1534.
• Citation: 816 So.2d 143
• Parties: SAND LAKE SHOPPES FAMILY LIMITED PARTNERSHIP, Appellant, v. SAND LAKE COURTYARDS, L.C., et al., Appellees.
• Court: Florida District Court of Appeals

816 So.2d 143

SAND LAKE SHOPPES FAMILY LIMITED PARTNERSHIP, Appellant, v. SAND LAKE COURTYARDS, L.C., et al., Appellees.

No. 5D01-1534.

District Court of Appeal of Florida, Fifth District.

April 5, 2002.

Rehearing Denied May 16, 2002.

Daniel B. Lacesa of Daniel B. Lacesa, P.A., Boca Raton, for Appellant.

Michael E. Marder and Amanda L. Chapman of Reenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A., Orlando, for Appellee Sand Lake Courtyards.

Gerald S. Livingston and Aileen M. Reilly of Livingston & Reilly, P.A., Orlando, for Appellee Sterling Media.

COBB, J.

The issue raised by this appeal is whether the lower court erred in dismissing with prejudice the first amended complaint of Sand Lake Shoppes Family Limited Partnership (Shoppes). According to that complaint Shoppes, which is a retail strip mall, acquired an easement for ingress and egress over a parcel of land owned by Sand Lake Courtyards, L.C. (Courtyards). This land is adjacent to the strip mall. The relevant portion of the easement reads as follows:

[Courtyards] grants to [Shoppes] its successors and assigns, and all tenants and licensees of parcel 2, an easement for the purpose of vehicular and pedestrian ingress and egress to and from Sand Lake Road over, across and upon all of that certain parcel of land.... Notwithstanding the foregoing [Shoppes] agrees and acknowledges that the easement granted in this paragraph is strictly limited to ingress and egress to and from Sand Lake Road and that no right has been granted herein which allows ingress and egress across parcel 1 to and from Orange Blossom Trail. (Emphasis supplied).

According to Shoppes, Courtyards applied for a billboard sign permit with Orange County and the application called for the erection of a billboard "over and across Shoppes' easement for ingress and egress." Eventually, the billboard was erected¹ and, according to the complaint, stands "squarely on Shoppes ingress and egress easement." It is then alleged:

As a result of the billboard erection, Shoppes has been substantially limited in its ingress and egress of the easement, substantially interfered with its use and enjoyment of road use, advertising, as well as potential liability in tort for injuries resulting on the property wherein its easement is located attributable to the billboard as well as costs and attorney's fees.

In Count I of its complaint Shoppes asked for a declaratory judgment to the effect that its easement is dominant over the "entire parcel" and is being reduced and infringed upon by the billboard. In a "private nuisance" count, Shoppes asserted that the billboard interfered with its property rights including a decrease in visual appeal, advertising due its tenants from road views, falling debris, corrosive effects from wear and tear, and a decrease in fair market value. Finally, in the third count of its complaint, Shoppes asked the lower court for a permanent mandatory injunction finding, among other things, that the billboard caused irreparable damage because ingress/egress was "substantially diminished." Shoppes stated the easement document made it clear that they had a right of ingress/egress "over the entire parcel of land, including the area where the billboard is erected...."

Courtyards' motion to dismiss the first amended complaint alleged that the easement was "strictly limited to ingress and egress" to and from Sand Lake Road and that this express language negated the various substantial interference claims raised in the first amended complaint. In short, Courtyards maintained that it had a right to use the easement property in any reasonable manner as long as Shoppes still had actual ingress/egress.

In dismissing, the trial court found that the language in the easement, a copy of which was annexed to the complaint, strictly limited Shoppes to ingress and egress and this constituted an express negation of the complaint's allegations in regard to substantial interference with the latter's use and enjoyment of the easement. The trial court distinguished our opinion in Diefenderfer v. Forest Park Springs, 599 So.2d 1309 (Fla. 5th DCA),rev. denied, 613 So.2d 4 (Fla.1992) on the basis that "that case involved the construction of a wall in the 50 foot easement area leaving areas of only 30 to 35 feet for ingress and egress." The trial court found that Courtyards, as the servient owner, could use the land in a way that would not interfere with Shoppes' easement. The crucial point to the trial judge was that Shoppes had not alleged that it had entirely lost the use of the land encumbered by the easement for...