HomeMy WebLinkAbout04-01-2005 Potchen v. McLeod and City of Winter Springs, FL Case # 02-CA-775-16-WBROWN, GARGANESE, WEISS & UAGRESTA, P.A.
Attorneys at l-mv MECIEI VEK)
Usher L. BrownOffices in Orlando, Kissimmee, APR 0 4 2005 Debra S. Babb-Nutcher°
Jeffrey P. Buak' Cocoa & Viera Joseph E. Blitch
Suzanne D'Agresta° CITY of VANTE14 6pR1Iy04 Victoria L. Cecil
Anthony A. Garganese° City Manager Amy J. Goddard
John H. Ward ' Katherine Latorre
Jeffrey S. Weiss —
'Board Certified Civil Trial Lawyer
°Board Certified City, County & Local Government Law
April 1, 2005
Mr. Ronald McLemore K
City Manager
City of Winter Springs
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. 315-011
Dear Ron:
Erin J. O'Leary
J. W. Taylor
Of Counsel
I am happy to enclose a copy of Judge Simmon's Order Dismissing Second Amended
Complaint dismissing the referenced case in its entirety. The judge's reasoning is clearly stated in
the Order. Judge Simmons has given Plaintiffs twenty (20) days in which to file a Third Amended
Complaint, so we are calendaring same. We do not know whether Plaintiffs will attempt to file
another complaint.
Please provide a copy of the Order to the Mayor and City Council and contact me if you have
any questions regarding the enclosed.
tintnony A. uargaarcbc
AAG/cg
Enclosure
cc: David Cominsky (w/encl.)
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: agargenese@orlandolaw.net
IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT,
IN AND FOR SEMINOLE COUNTY, FLORIDA
CASE NO. 02-CA-775
ROBERT POTCHEN,
Plaintiff,
vs.
DAVID W. MCLEOD and SULYN V. MCLEOD,
and the CITY OF WINTER SPRINGS, FLORIDA,
Defendants.
ORDER DISMISSING SECOND AMENDED COMPLAINT
THIS CAUSE came before the court upon the Defendants' Motion to Dismiss Second
Amended Complaint. The Court having considered the motion, and being fully advised in the
premises, it is
ORDERED AND ADJUDGED:
1. The Second Amended Complaint is dismissed to the extent that Plaintiff has
endeavored to bring suit on behalf of the Homeowner's Association or other similarly
situated property owners. The Plaintiff lacks standing to bring such a cause of action.
2. Count I and III are dismissed as Plaintiff's Trespass claim fails to allege that the
Plaintiff has a possessory interest in any property allegedly impacted by the trespass.
An easement is a nonpossessory interest in land and, as such, forms an insufficient
basis to maintain a trespass action. See Winselman v. Reynolds, 690 So.2d 1325 (Fla.
3`d DCA 1997).
3. Furthermore, The Plaintiff has failed to allege compliance with the pre -suit notice
requirements of Section 768.28(6)(a), Florida Statutes, prior to bringing tort -based
claims against the City of Winter Springs. See Wagatha v. City of Satellite Beach,
865 So.2d 620 (Fla. 5`b DCA 2004).
4. Count II is dismissed as the facts alleged are not tantamount to a constitutionally
forbidden "taking" of Plaintiffs property.
5. Count IV is dismissed as it fails to assert a proper claim for injunctive relief. See
Weekley v. Pace Assembly Ministries, Inc,, 671 So.2d 220 (Fla. I" DCA 1996).
6. Count V is dismissed as Plaintiff has asserted doubt as to the legal rights of the
Homeowner's Association and "other similarly -situated Dunmar Estates property
owners," which Plaintiff does not have standing to allege. Plaintiff has failed to
allege which of his individual rights are in doubt.
7. Count VI is dismissed as Plaintiff has improperly pled a claim seeking punitive
damages without complying with the procedures set forth in Section 768.72, Florida
Statutes. See also .Simeon, Inc. v. Cox, 671 So.2d 158 (Fla. 1996)("...any punitive
damages claim alleged prior to a party asking for and receiving leave of the court
must be dismissed or stricken.").
8. Plaintiff(s)l shall have ' days from the date of this Order to file a Third Amended
Complaint.
DONE AND ORDERED in Chambers in Sanford, Seminole Coµpty,
A�day of March, 2005.
Copies furnished this o?q day of��, ,
Anthony A. Garganese, Esquire
Debra S. Babb-Nutcher, Esquire
Brown, Garganese, Weiss & D'Agresta, P.A.
Two Landmark Center, Suite 660
225 East Robinson Street
Orlando, Florida 32801
Damon A. Chase, Esquire
Chase Law Offices, P.A.
1009 East Highway 436
Altamonte Springs, Florida 32701
JUDICIAL ASSISTANT
Judge
to:
Michael D. Jones, Esquire
Michael D. Jones & Associates, P.A.
P.O. Box 196130
Winter Springs, Florida 32719
Plaintiffs Second Amended Complaint asserts that he is being joined by Michael D. Jones and George
Acha, as Plaintiff's in their individual capacities, yet neither Jones nor Acha's joinder is reflected in the
style of the case.
i►A