Opinion
Nos. 3D19-1069 3D19-545 3D19-14
09-02-2020
Marshall IVES, Appellant, v. Tate GETTINGER and Anamaria Gettinger, and Alex Fences, Inc., Appellees.
Jay M. Levy, P.A., and Jay M. Levy and Ryan L. Marks, for appellant. Mintzer Sarowitz Zeris Ledva & Meyers LLP, and Michelle E. Hardin and Gina E. Romanik ; Cooney Trybus Kwavnick Peets, Warren B. Kwavnick and Kelly Lenahan (Fort Lauderdale), for appellees.
Jay M. Levy, P.A., and Jay M. Levy and Ryan L. Marks, for appellant.
Mintzer Sarowitz Zeris Ledva & Meyers LLP, and Michelle E. Hardin and Gina E. Romanik ; Cooney Trybus Kwavnick Peets, Warren B. Kwavnick and Kelly Lenahan (Fort Lauderdale), for appellees.
Before EMAS, C.J., and HENDON and GORDO, JJ.
PER CURIAM.
This is a cautionary tale that reaffirms the adage: "Good fences make good neighbors." The case below began, simply enough, with a county court trespass action filed by a homeowner against his adjoining neighbor, seeking damages of $2000 upon an allegation that the neighbor hired a construction company to trespass upon the homeowner's property and remove and destroy the sedimentary rock foundation beneath the homeowner's fence.
Taken from the poem "Mending Wall," by Robert Frost, part of a collection of his poems in the book North of Boston (Henry Holt and Co., 1914).
From these humble beginnings, the case grew to include a counterclaim and third-party claim, seeking injunctive relief and damages in excess of $50,000, exceeding the jurisdictional limit of the county court, and requiring the case to be transferred to the circuit court. Following a bench trial, the trial court found in favor of the homeowner and entered judgment for damages in the amount of $600.
The neighbor challenges the final judgment as well as three separate orders dismissing portions of the neighbor's second amended third-party complaint as well as the second amended and third amended counterclaim against the homeowner.
We find no error in the trial court's final judgment, which was supported by competent substantial evidence, nor do we find any error in the trial court's pretrial dismissal orders, and affirm in all respects. See Kendall v. Gilmore, 915 So. 2d 681, 682 (Fla. 3d DCA 2005) (holding: "The trial court properly dismissed the appellants' complaint because it did not state a claim ‘that arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim.’ In this case, the appellants' amended complaint could not maintain a valid claim for contribution, indemnification or subrogation") (quoting Fla. R. Civ. P. 1.180(a) ); Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992) (noting: "While there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion"); Gerstein v. Int'l Asset Value Grp., LLC, 199 So. 3d 979, 982 (Fla. 3d DCA 2016) (stating: "There is simply a point in litigation when defendants are entitled to be relieved from the time, effort, energy, and expense of defending themselves against seemingly vexatious claims") (quotation omitted). See also QBE Ins. Corp. v. Chalfonte Condo. Apartment Assoc., Inc., 94 So. 3d 541, 551 (Fla. 2012) (explaining that whether a statutory cause of action should be judicially implied is a question of legislative intent, and the primary guide in determining legislative intent is the "actual language used in the statute" and "the context in which the language lies") (quotations and citations omitted); Mallery v. Norman L. Bush Auto Sales & Serv., Inc., 45 Fla. L. Weekly D619 (Fla. 2d DCA March 18, 2020) (finding no private right of action where the plaintiff's complaint alleged that the tow company "violated section 715.07(2)(a)(9) by failing to release her vehicle to her within one hour of her request" and that "the violation rendered Norm's Towing liable to her for damages for, among other things, the costs of removal, transportation, and storage of her vehicle") (citing QBE Ins. Corp., 94 So. 3d at 541 ).
Affirmed.