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Home My WebLink About02-09-2004 Potchen v. McLeod and the City of Winter Springs, FLt BROWN, SALZMAN, WEISS & GARGANESE, P.A. Usher L. Brown Suzanne D'Agresta" Anthony A. Garganese° Gary S. Salzman° John H. Ward' Jeffrey S. Weiss "Board Certified Civil Trial Lawyer *Board Certified Business Litigation Lawyer 'Board Certified City, County & Local Government Law Ronald McLemore City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708 Attorneys at Law Offices in Orlando, Kissimmee, Debra S. Babb-Nutcher Cocoa & Viera Joseph E. Blitch Jeffrey P. Buak° RECEIVED John U. Biedenharn, Jr. Douglas Lambert FEB 10 2004 Katherine Latorre Michelle A. Reddin Kimberly F. Whitfield CITY OF ity LATER SPRINGS — Erin J. O'Leary Of Counsel February 9, 2004 COPY RE: Potchen v. McLeod and City of Winter Springs, Florida Case No.: 02-CA-775-16-W Our File No. 315-011 Dear Ron: By now you have had an opportunity to digest the letter regarding the motion for summary judgment in this case and it should be obvious that there appears to be a certain amount of frivolousness to the complaint, especially since the attorney of record for the Plaintiff executed a utility easement agreement for Dunmar Circle many years ago. In the event Plaintiff does not dismiss the case within 21 days, and should we prevail, it is likely that we will pursue sanctions against the Plaintiff and their attorney. Please provide a copy of this letter for the Mayor and City Commission. If you have any questions, please call. /Vey yours, Anthony A. Garganese City Attorney AAG/Ig Enclosure G:lDocslCity of Winter SpringAPotchen v. McLeodlCorrespondencelMcLemore_1tr.020904.wpd 225 East Robinson Street, Suite 660 - P.O. Box 2873. Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 - Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net - Email: agarganese@orlandolaw.net BROWN, WARD, SALZMAN & WEISS, P.A. Usher L. Brown Suzanne D'Agrestal Anthony A. Garganese° Gary S. Salzman* John H. Ward Jeffrey S. Weiss *Board Certified Civil Trial Lawyer *Board Certified Business Litigation Lawyer Board Certified City, County & Local Government Law Attorneys at Law Offices in Orlando, Kissimmee, Cocoa & Viera Debra S. Babb-Nutcher Joseph E. Blitch Jeffrey P. Buak° John U. Biedenharn, Jr. Douglas Lambert Katherine Latorre Michelle A. Reddin Kimberly F. Whitfield Erin J. O'Leary Of Counsel February 4, 2004 Michael D. Jones, Esquire Leffler & Associates, P.A. P. O. Box 196130 Winter Springs, Florida 32719-6130 RE: Potchen v. McLeod and City of Winter Springs, Florida Case No.: 02-CA-775-16-W Our File No. 315-011 Dear Mr. Jones: Enclosed is Defendants' Motion for Sanctions based on the filing of the complaint in this case. As you have now had sufficient time to review the motion for summary judgment we filed in November, you should have adequate proof that the amended complaint has no basis in law or fact, especially considering the Dedication of Easement, signed by you, dedicating Dunmar Circle for public utilities. Pursuant to section 57.105, Florida statutes, you have 21 days to dismiss the amended complaint or correct the deficiencies in the complaint, or else I will file the motion for sanctions and seek sanctions against you and your client as provided in section 57.105 DSBN/lmg cc: Anthony A. Garganese, Esquire Enclosure Very truly yours, 11-sr-1 /&� <�� - Y-TA,gx - Debra S. Babb-Nutcher [dictated and signed in her absence] g: lDocs!City of 4l/inter EpringsTotchen v. ,L1cLeodlCwrespondence jones_ltr.020d04. svpd 225 East Robinson Street, Suite 660 - P.O. Box 2873 - Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 - Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net - Email: dbabb@orlandolaw.net IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR SEMINOLE COUNTY, FLORIDA ROBERT POTCHEN, Plaintiff, vs. CASE NO.: 02-CA-775-16-W DAVID W. MCLEOD and SULYN V. MCLEOD, and the CITY OF WINTER SPRINGS, FLORIDA, Defendants. DEFENDANTS' MOTION FOR SANCTIONS PURSUANT TO SECTION 57.105 FLORIDA STATUTES Defendants', City of Winter Springs and David and Sulyn McLeod, file this Motion for Sanctions pursuant to section 57.105, Florida Statutes (2003), and request this court award sanctions to the Defendants based upon Plaintiff's filing of his Amended Complaint, and state as follows.- 1 . Section 57.105, Florida Statutes (2003), allows the court to award a reasonable attorney's fee when the court finds that a claim or defense, when initially presented to the court or at any time before trial, was not supported by the material facts necessary to establish the claim or defense, or, would not be supported by the application of then -existing law to those material facts. § 57.105(1)(a), (b), Florida Statutes. 2. Plaintiff's Amended Complaint has no basis in law or in fact and Plaintiff has failed or refused to dismiss or correct his Amended Complaint despite clear evidence that it lacks foundation in law or fact as set forth in Defendants' Motion for Summary Judgment. 1 Case No.: 02-CA-775-16-W 3. Plaintiff's lawsuit is based on his belief that the City of Winter Springs cannot enter into an easement agreement for the installation of a waterline through property owned by the McLeods unless the Dunmar Estates Homeowners Association approves of the easement agreement. Plaintiff's rationale appears to be based on the fact that the waterline easement lies underneath an ingress -egress easement. However, Plaintiff simply ignores the plain fact that the ingress -egress easement is also a dedicated easement for public utilities. 4. Neither the Declaration of Covenants or any Florida law supports Plaintiff's contention. In fact, the Covenants, a Dedication of Easement signed by Plaintiff's attorney years ago, and Florida law upholds this waterline easement. 5. The frivolous nature of Plaintiff's lawsuit is more fully set forth in Defendants' Motion for Summary Judgment; however, the main arguments are summarized below. 6. Acquisition of property for public purposes is not subject to covenants and restrictions of homeowners associations. The underground water line is located on property owned by the McLeods in fee simple and does not interfere with the ingress -egress easement. The McLeods cannot be divested of their title and right to use their land as long as their use does not interfere with the ingress -egress easement. Since the ingress -egress easement is also a public utility easement, the two easements were always intended to co- exist. The Declaration of Covenants for Dunmar Estates expressly contemplates the existence and possibility of public utilities in Dunmar Estates, even through Dunmar Circle. A Dedication of Easement recorded in the public records and signed by Plaintiff's counsel 2 Case No.: 02-CA-775-16-W specifically refers to a public utility easement through the area known as Dunmar Circle and states that property owners may grant easements to public utilities. By statute, water service is a public utility. Therefore, installation of water lines is consistent with what the Covenants and Dedication of Easement contemplated. 7. Section 57.105(4), requires a party seeking sanctions under this section to serve a motion upon the other party and to provide the other party 21 days after service of the motion to withdraw or correct the challenged paper, claim, defense, contention, allegation, or denial. 8. On or about February 4, 2004, Defendants served upon Plaintiff a copy of this Motion for Sanctions. To date, Plaintiff has made no attempt to withdraw or correct the deficiencies in his Amended Complaint, 9. Twenty-one (21) days have passed since the service of this motion. THEREFORE, Defendants seek sanctions under section 57.105, Florida Statutes against Plaintiff and his attorney for filing a frivolous lawsuit that is unsupported by the material facts and not supported by law. Dated this 4" day of February, 2004. ANTHONY A. GARGANESE City Attorney, City of Winter Springs Florida Bar No.: 988294 DEBRA S. BABB-NUTCHER Florida Bar No.: 996580 BROWN, SALZMAN, WEISS & GARGANESE, P.A. 225 East Robinson Street, Suite 660 3 e Case No.: 02-CA-775-16-W Post Office Box 2873 Orlando, Florida 32802-2873 (407) 425-9566; Facsimile (407) 425-9596 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent via U.S. Mail to Michael D. Jones, Esquire, P.O. Box 196130, Winter Springs, Florida 32719- 6130 this 4' day of February, 2004. DEBRA S. BABB, ESQUIRE Florida Bar No. 996580 G:1Docs\City of Winter SpringsTotchen v. McLeod\Pleadings\Motion for Sanctions.020404.wpd ll