Loading...
HomeMy WebLinkAbout05-13-2004 Potchen v. Mcleod and the City of Winter Springs, FL Case No.: 02-CA-775-16-W#T" -1 BROWN, SALZMAN, WEISS & GARGANESE, P.A. Usher L. Brown • Jeffrey P. Buak° 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 Attorneys at Law Offices in Orlando= Kissimmee, Cocoa & Viera Debra S. Babb-Nutcher Joseph E. Blitch John U. Biedenharn, Jr. Lisa M. Fletcher Douglas Lambert Katherine Latorre Melanie A. Mucario Michelle A. Reddin Kimberly F. Whitfield Erin J. O'Leary Of Counsel Pursuant to Section 119.07(3)(1), Florida Statutes, this letter is exempt from public records disclosure because it contains the mental impressions, conclusions, litigation strategy, or legal theory of the City Attorney's Office regarding the aforementioned civil litigation. Said exemption shall remain in effect until the conclusion of the litigation. May 13, 2004 Mr. Ronald McLemore Mr. and Mrs. David McLeod City Manager 645 Dunmar Circle City of Winter Springs Winter Springs, FL 32708 1126 East State Road 434 Winter Springs, FL 32708 RE: Potchen v. McLeod and City of Winter Springs, Florida Case No.: 02-CA-775-16-W Our File No. 316-011 Dear Mr. MCLemore, Mr. McLeod and Mrs. McLeod: We recently received a Notice of Appearance in this case on behalf of the plaintiff, Robert Potchen, from Damon Chase of Chase Law Offices in Altamonte Springs. Mr. Chase did not substitute himself as counsel, but has merely filed a Notice of Appearance. That means that Michael Jones is still one of the attorneys of record in this case. You should have already received a copy of the Second Amended Complaint which adds Michael D. Jones and George Acha as individual plaintiffs in this case. This letter will summarize the basic allegations of this very lengthy Complaint. Soon I will prepare for you a detailed analysis of the merits of their allegations as well as our anticipated responses and defenses to this Second Amended Complaint. As I stated, Michael Jones and George Acha have joined the Complaint in their individual capacity, however, the Complaint also alleges they are representing "other like -situated property owners." 19. 225 East Robinson Street, Suite 660 • P.O. Box 2873.Orlando, Florida 32802-2873 Orlando (407) 425-9556 Fax W4www.oriandolaw.net - Email: dbabb@orlandolaw.net Viera (866) 425-9566 ebs te Ronald McLemore, City Manager David and Sulyn McLeod May 13, 2004 Page Two The facts in their Second Amended Complaint are generally similar to the facts in the previous versions, although plaintiffs have emphasized certain facts and added certain facts clearly in response to our Motion for Summary Judgment. Plaintiffs have also added more language regarding the "harm" that has resulted due to the presence of the water line. Plaintiffs have surprisingly added that the defendants acted with "wanton, actual malice, deliberation, gross negligence and in utter disregard for the plaintiff and members of the association." ¶ 30. Plaintiffs have expanded their demand for relief. Count I is based on trespass due to an impermissible overburden of Dunmar Circle. This Count is clearly based upon arguments made in our Motion for Summary Judgment and our Summary Judgment addresses the allegations made by plaintiffs in Count I. Plaintiffs claim that the City's trespass upon Dunmar Circle has resulted in the plaintiffs "and other servient property owners to suffer monetary damages related to the increased traffic and wear on the automatic gates located at the entrances of Dunmar Estates. 139. Therefore, plaintiffs demand monetary damages for the alleged losses suffered by plaintiffs, as well as injunctive relief to prohibit defendants from extending assess to the private property of the servient estates to third parties in violation of recorded easements. Count II of the Second Amended Complaint alleges a taking based on the fact that the waterline easement gives the City access to the private roadways of Dunmar Estates through the security gate and that there is no oversight or regulation by the private property owners of Dunmar Estates roadways. ¶ 43. The Complaint alleges that employees of the City use the roads through Dunmar Estates as a shortcut from the Tuskawilla area to Lake Avenue. 144. The Complaint alleges that the City's acquisition of the "right to travel on the private property" constitutes an impermissible taking of property rights. 145. Also, the Complaint alleges that the excessive use of Dunmar Circle by the City constitutes an unlawful taking of private property. Further, the placing of the waterline within a private easement for the purpose of a public use constitutes an impermissible taking. 147. Additionally, the Complaint alleges that the defendants have caused the property owners of Dunmar Estates, including plaintiffs, to lose a primary property right: "the right to exclude others." This is certainly a novel argument under the takings law. Under Count II plaintiffs request the Court enjoin the City from the unconstitutional taking of plaintiffs' property, request an award of monetary damages for the temporary taking, and request attorney's fees and costs. Plaintiffs do not allege which constitution, state or federal, they assert was violated. Count III is another count for trespass and is based on the allegation that the City "repeatedly and consistently travels beyond the granted easement on Dunmar Circle." 151. Also, plaintiffs argue that the waterline placed within the private easement owned by plaintiffs and Dunmar Estates property owners constitutes a continuing trespass. Plaintiffs allege that "the defendants acted with wanton, actual malice, deliberation, gross negligence and in utter disregard for the Plaintiff[s] and members of the Association and therefore, plaintiffs are entitled to punitive damages." ¶ 59. Therefore, Plaintiffs request the Court issue an injunction against the City from trespassing across private property of Dunmar Circle across which it has no easement, and requests an order requiring the City to remove the waterline, requests damages for the trespass, including attorney's fees and costs, and also requests punitive damages. Punitive damages are Pursuant to Section 119.07(3)(1), Florida Statutes, this letter is exempt from public records disclosure because It contains the mental aforementioned reivilit litigation. Said exemptionoshall remain In effect until the conclusion of the litigat on regarding the Ronald McLemore, City Manager David and Sulyn McLeod May 13, 2004 Page Three improperly alleged in this Complaint. There is a statutory process that a party must follow before it can allege punitive damages. We should file a Motion to Strike or Motion to Dismiss the claim for punitive damages. Count IV requests injunctive relief based on the allegation that the City now has "unfettered access to the private property within Dunmar Estates as a result of this agreement with the McLeods because the McLeods have provided the City with the security code for the gate. 167. Therefore, plaintiffs request the entry of a temporary and permanent injunction prohibiting the McLeods from disclosing codes for the security gates and request an injunction prohibiting the City from accessing entry to Dunmar Estates through the privately owned gates for purposes unrelated to the maintenance of the waterline. Plaintiffs seek costs related to the improper use of the Association's property. Count V requests declaratory relief regarding the validity of the easement granted to the City, the necessity of the Homeowner's Association or Architectural Control Committee's approval for the granting of the easement and the construction of structures within Dunmar Estates, the legal rights and recourse afforded to homeowners and the Homeowners' Association for the violation of the covenants and restrictions. Finally, Count VI is a count for punitive damages which, again, is improper and should be the subject of a Motion to Strike/Dismiss. Noticeably absent from the Complaint or any of the attachments to the Complaint is the Dedication of Easement, dated March 17, 1979, granting a perpetual nonexclusive easement for ingress, egress and utility purposes over and through Dunmar Circle. Based on this Second Amended Complaint, the current Motion for Summary Judgment filed by the City and the McLeods will have to be revised to address these new arguments. It is no coincidence that plaintiffs have filed the Second Amended Complaint one week prior to our scheduled hearing on our Motion for Summary Judgment. We can not amend our Motion for Summary Judgment to address the new counts and new arguments in the Second Amended Complaint because the Civil Rules require twenty (20) days notice prior to the hearing. Therefore, plaintiffs have essentially prevented us from moving forward on the hearing next week. We have the option to hear certain issues that are still alive in this Second Amended Complaint. Our basic argument is still the same: the Dedication of Easement granted a perpetual nonexclusive easement for ingress, egress and utility purposes. This waterline easement is properly located in the area designated for utility purposes. Plaintiffs new allegation that the City has gone above and beyond what it was permitted to do in the waterline easement could prevent us from obtaining summary judgment on those issues, namely, trespass. This is because the Court may see it as a matter of material dispute of facts. We will present testimony from the City stating that City employees do not randomly drive through or cut through Dunmar Estates, and plaintiffs will have witnesses testifying that City employees frequently cut through Dunmar Estates and randomly drive through the neighborhood for purposes other than maintaining the easement. It is very likely that the Court will consider this a dispute of material facts and will require at least that issue to go to trial Plaintiffs have requested a jury trial in this Second Amended Complaint. Pursuant to Section 119.07(3)(1), Florida Statutes, this letter Is exempt from public records disclosure because It contains the mental Impressions, conclusions, litigation strategy, or legal theory of the City Attorney's Office regarding the aforementioned civil litigation. Said exemption shall remain In effect until the conclusion of the litigation. 'Ronald McLemore, City Manager David and Sulyn McLeod May 13, 2004 Page Four There are a number of issues that will have to be researched based on these new allegations, and there are some additional facts we need to get straight, namely, we will need to get more information from City employees as to their actions when entering Dunmar Estates. According to the deposition of Kip Lockcuff, the maintenance schedule is very limited and it is unlikely that City maintenance workers are entering the subdivision for purposes other then maintaining the waterline or hydrants; however, we will have to be prepared to prove this. will be doing a more extensive analysis of the Complaint and the arguments contained therein and will keep you advised of the results of our research. ery truly yours, Debra S. Babb-Nutcher DSBN:pf Enclosure cc: Anthony Garganese, Esquire Pursuant to Section 119.07(3)(1), Florida Statutes, this letter is exempt from public records disclosure because it contains the mental impressions, conclusions, litigation strategy, or legal theory of the City Attorney's Office regarding the aforementioned civil litigation. Said exemption shall remain in effect until the conclusion of the litigation.