Winselmann v. Reynolds

• Decision Date: 05 March 1997
• Docket Number: No. 96-1201,96-1201
• Citation: 690 So.2d 1325
• Parties: 22 Fla. L. Weekly D578 Kurt WINSELMANN, Appellant, v. Angela REYNOLDS, individually and as Trustee; Shirley Weber, individually and as Trustee; Loretta Thompsen, a/k/a Loretta Thompson, individually and as Trustee; Robert Krieter; and The Marie M. Krieter Trust or The John Doe Trust, Appellees.
• Court: Florida District Court of Appeals

Page 1325

690 So.2d 1325

22 Fla. L. Weekly D578

Kurt WINSELMANN, Appellant, v. Angela REYNOLDS, individually and as Trustee; Shirley Weber, individually and as Trustee; Loretta Thompsen, a/k/a Loretta Thompson, individually and as Trustee; Robert Krieter; and The Marie M. Krieter Trust or The John Doe Trust, Appellees.

No. 96-1201.

District Court of Appeal of Florida Third District.

March 5, 1997.

Rehearing Denied April 23, 1997.

Peter M. Commette, Ft. Lauderdale, for appellant.

Riley & Knoerr, P.A. and Stephen J. Riley and Deborah Hall, Ft. Lauderdale, for appellee Robert Krieter.

Beckmeyer & Mulick and Karl Beckmeyer, Islamorada, for appellees Angela Reynolds, individually and as Trustee, Shirley Weber, individually and as Trustee and the Marie M. Krieter Trust.

Before SCHWARTZ, C.J., and GERSTEN and GREEN, JJ.

GREEN, Judge.

Kurt Winselmann, plaintiff below, appeals an order dismissing his amended complaint for trespass with prejudice for failure to state a cause of action. We agree with the court below that the allegations of the amended complaint cannot state a cause of action for trespass, but we reverse the dismissal with prejudice based upon our determination that the complaint may be amended to state an appropriate cause of action against the appellees.

The basis of the purported trespass action essentially was that the appellees, as owners of a subdivision in Monroe County, executed a lease with a third party, (Dolphins Plus Inc.), to permit the erection of a chain link fence around the subdivision's boat basin for the purpose of utilizing the basin as a stranding pen for wounded or ill marine mammals. Although Winselmann had no ownership or possessory rights to this boat basin nor was his property contiguous to the basin, Winselmann claims to have had an easement to ingress and egress the same which was allegedly conferred upon him by the original plat when he purchased his home in the subdivision. Winselmann claimed, in his action below, that he was entitled to maintain a trespass action where appellees' lease with Dolphins Plus interfered with his right to the use and enjoyment of the boat basin. He also alleged that he was entitled to special damages in the form of attorney's fees incurred when he and the other subdivision homeowners were forced to institute a declaratory action against Dolphins Plus to successfully have the lease with appellees invalidated. See Dolphins Plus, Inc. v. Hobdy, 650 So.2d 213 (Fla. 3d DCA 1995).

A simple definition of a civil trespass to real property is an injury to or use of the land of another by one having no right or authority. Brown v. Solary, 37 Fla. 102, 112, 19 So. 161, 164 (1896); Guin v. City of Riviera Beach, 388 So.2d 604, 606 (Fla. 4th DCA 1980). To obtain a recovery for a trespass to real property then, it is clear that the aggrieved party must have had an ownership or possessory interest in the property at the time of the trespass. Vincent v. Hines, 79 Fla. 564, 571-72, 84 So. 614, 616 (1920); Hutchins v. Strickland, 674 So.2d 870, 872 (Fla. 1st DCA 1996); Okaloosa County Gas District v. Enzor, 101 So.2d 406, 407 (Fla. 1st DCA 1958); 55 Fla. Jur.2d Trespass § 7 (1984); see also Atlantic Coast Line R. Co. v. Rutledge, 122 Fla. 154, 156, 165 So. 563, 564 (1935) ("An action for trespass quare clausum fregit is the proper remedy for any forcible violation of the right of possession of realty."); 87 C.J.S. Trespass § 59 (1954). Thus, where it is clear from the allegations of the amended complaint that Winselmann allegedly had only an easement or a right to the use of the subject property, the trial court properly determined that a trespass action could not lie.

Winselmann's appropriate remedy at law for an injury to or disturbance of his alleged easement would have to be an action for trespass on the case or simply "on the case." ¹ Florida Power Corp. v. McNeely, 125 So.2d 311, 316 (Fla. 2d DCA 1960) ("The proper remedy at law for injury to or disturbance of an easement is an action on the case and not an action of trespass ...."), cert. denied, 138 So.2d 341 (Fla.1961).

An action on the case lies to recover damages for torts not committed with force, actual or implied; or having been occasioned by force, where the matter affected was not tangible, or the injury was not immediate but consequential; or where the interest in the property was only in reversion--in all of which cases trespass is not sustainable.

A mortgagee, who is not entitled to possession, may have action on the case for damages resulting from wrongful injury to the mortgaged property, whereby the property is rendered of less value as security for the mortgage debt....

Atlantic Coast, 122 Fla. at 156-57, 165 So. 563; see also, e.g., Smith v. McCullough Dredging Co., 152 So.2d 194, 196 (Fla. 3d DCA 1963) (finding where injury resulting directly and immediately from defendant's act is not merely consequential, cause of action is for "simple trespass" and contributory negligence is no defense; where injury is indirect or secondary consequence of defendant's act, cause of action is for "trespass on the case" and contributory negligence is a defense), cert denied, 165 So.2d 178 (Fla.1964); Leonard v. Nat Harrison Assocs., Inc., 137 So.2d 18, 19 (Fla. 2d DCA 1962) (affirming summary judgment in an action brought for trespass where the injuries sustained by plaintiff while attempting to use steps to her rented dwelling nine days after they had been damaged by defendant's truck were not a direct or immediate result of the trespass but were consequential, hence proper remedy was not trespass but trespass on the case).

Thus, we find that the lower court abused its discretion when it ordered the dismissal of this action with prejudice where the complaint may be amended to state a cause of action and the privilege to amend has not otherwise been abused. Robbins v. City of Miami Beach, 664 So.2d 1150, 1151 (Fla. 3d DCA 1995); Madison County v. Foxx, 636 So.2d...