Opinion
Nos. 97-2508, 98-0979
October 1, 1998
Consolidated appeals from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Moses Baker, Jr., Judge; L.T. No. CL 90-6572 AD.
Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, for appellant.
Michael I. Kotler of Schwartz, Gold, Cohen, Zakarin Kotler, P.A., Boca Raton, for appellees.
This is a consolidated appeal from an order of the trial court granting summary judgment in favor of appellees on appellant's complaint and appellees' counterclaim regarding a dispute over an easement granting the use of a right-of-way over sand dunes for beach access to nearby property owners and from the denial of appellees' motion for attorney's fees. Due to the ambiguity in the language of the easement, we hold the trial court erred in granting summary judgment because issues of fact existed as to whether the easement was exclusive. Further issues of fact remain as to whether appellees' construction on the dominant tenement unreasonably interfered with appellant's right-of-way interests as well as the extent of damages suffered, if any. See Everglades Pipe Line Co. v. Trujillo, 534 So.2d 881 (Fla. 3d DCA 1988).
We remand for further proceedings to conduct a hearing regarding the intent of the parties at the time the easement was created relative to the exclusivity of the easement. Once such determination has been made, the trial court is directed to conduct a trial to determine whether appellees unreasonably interfered with appellant's right-of-way interests.
Further, we affirm the trial court's ruling denying appellees' attorney's fees pursuant to section 57.105, Florida Statutes in consolidated case number 98-0979.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
STEVENSON, J., and COHN, JAMES I., Associate Judge, concur.