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Filing # 90016747 E-Filed 05/23/2019 12:14:33 PM
IN THE CIRCUIT COURT OF THE 20™ JUDICIAL CIRCUIT
IN AND FOR LEE COUNTY, FLORIDA
CIviL ACTION
William Anthony and Patricia
Anthony,
Plaintiffs, Case No.
v. Jury Trial Demanded
William Binder,
Defendant.
Complaint and Jury Demand
The plaintiffs, William Anthony and Patricia Anthony, “Dock Owners”) hereby file
this complaint against the defendant, William Binder, (“Trespasser”) demands a trial
by jury as of right, alleges as follows:
1. This lawsuit concerns the wrongful entry onto real estate and destruction of a
walkway to a legally-permitted dock located in Lee County.
2. The Dock Owners sue for trespass and conversion.
Jurisdiction and Venue
RHODES TUCKER
3. This Honorable Court has original jurisdiction over the subject matter in this
case under Fla. Stat. § 26.012(2)(a)(c), and (g) because the amount in
controversy under actions at law in this case exceed the sum having exclusive
original jurisdiction in county courts under Fla. Stat. § 34.01(1)() (ie., the
amount in controversy exceeds $15,000.00, exclusive of interest, costs, and
attorneys’ fees) and the equitable nature of the specific performance remedy.
4, This Honorable Court has personal jurisdiction over the parties under Fla.
Stat. § 48.193 under the facts alleged in this complaint.
a. The Dock Owners (the plaintiffs) are individuals residing in the State of
Florida.
b. The Trespasser (the defendant) is an individual residing in the State of
Florida.
Complaint
{3404-3404.002 00098958.Docx; 1)
eFiled Lee County Clerk of Courts Page 1RHODES TUCKER
Venue for this case is proper in this Honorable Court under Fla. Stat. §§ 47.011
and 47.041 because the causes of action accrued in Lee County, Florida under
the facts alleged in this complaint.
The Easement, the Dock, and the Walkway
6.
The Dock Owners, the plaintiffs, are the record legal owner of a house located
at 15710 Catalpa Cove Drive, Fort Myers, Florida. The Dock Owners began
construction of the new home in 4/2017 and completed construction in 6/2018.
The Dock Owners have beneficial use of an easement recorded at Book 3656,
Page 3292 of the Lee County Public Records. A legally-permitted dock
structure fits well within the easement benefitting the Dock Owners’ property.
The drawing to the left is part of the permit application and approved permit.
The drawing to the right is from the recorded easement.
The dock included a walkway constructed under the dock permit. The
walkway was in a safe condition with many years of remaining service. The
following picture to the left depicts the walkway to the dock structure on
8/12/2017. Previously, the Trespasser had wrongfully-entered the property
and installed a chain that created a barrier to entering the dock. Then, the
Trespasser wrongfully-entered the property again. This time, the Trespasser
installed a “no entry” sign. The following picture to the right depicts the
walkway to the dock structure on 11/13/2017.
Complaint
(3404-3404.002 00098958. DoCKs1)
eFiled Lee County Clerk of Courts Page 2RHODES TUCKER
9. As the Dock Owners were completing construction on their new home, the
Trespasser wrongfully-entered the property again. This time, the Trespasser
removed the entire walkway. The following pictures depict the walkway to the
Count 1
Trespass
10. This count is a claim for damages resulting from a trespass to real estate.
11. The Dock Owners incorporate the allegations from {{] 1—9 into this
paragraph.
12. The Trespasser did not have the Dock Owners’ consent to install the chain,
install the “no entry” sign, or dismantle the walkway to the dock, or enter the
real estate at any other time for any other reason.
13. Damages are measured in this instance by, among other things, quantifying:
a. loss of market value to the real estate,
b. loss of use,
c. the physical injury to the land,
d. discomfort and annoyance to the Dock Owners, and
e. emotional distress to the Dock Owners.
14. The Trespasser caused the Dock Owners’ general and specific injuries,
including damages.
a. The Dock Owners lost the use and benefit of the walkway, dock, and
easement.
b. The real estate lost market value by not having a usable dock.
ec. Physical injury to the land resulted, including the costs of replacing the
walkway, removing the “no entry” sign, removing the chain.
d. The Dock Owners suffered considerable discomfort, annoyance, and
emotional distress resulting from the Trespasser’s intermittent, offensive,
and illegal invasions.
Complaint
{3404-3404.002 00098958.Docx; 1)
eFiled Lee County Clerk of Courts Page 3RHODES TUCKER
15. The Court should also find the Dock Owners as the prevailing party in this
case and award attorneys’ fees and costs. See, Moritz v. Hoyt Enterprises, Inc.,
604 So. 2d 807 (Fla. 1992) (the prevailing party is the party who has prevailed
on the significant issues tried before the court); see also, BMR Funding, LLC
yv. DDR Corp., 67 So. 3d 1137, 1140 (Fla. 2d DCA 2011) (a claim for attorneys’
fees must be pled, whether based on contract or statute).
WHEREFORE, Mr. and Mrs. Anthony (Dock Owners) respectfully request this
Honorable Court to enter judgment in their favor against Mr. Binder (Trespasser)
for:
I. at least $25,000.00 in damages,
II. attorneys’ fees and costs as provided by law,
Ill. post-judgment interest at the statutory rate, and
IV. all further relief this Honorable Court deems appropriate and just.
Count 2
Conversion
16. This count is a claim for conversion.
17. The Dock Owners incorporate the allegations from {{] 1—9 into this
paragraph.
18. The Trespasser took the wood planks from the walkway to the dock. In doing
so, the Trespasser exercised control and ownership over the planks in a
manner that is inconsistent with the Dock Owners’ right of possession.
19. The Trespasser did not have the Dock Owners’ consent to remove the walkway
to the dock.
20. The Trespasser’s actions, therefore, amount to conversion.
21. |The Dock Owners demanded the Trespasser restore the planks in the walkway
or compensate the Dock Owners.
22. The Trespasser refused to appropriately compensate the Dock Owners.
Complaint
{3404-3404.002 00098958.Docx; 1)
eFiled Lee County Clerk of Courts Page 4RHODES TUCKER
23.
24,
25.
As a result, the Trespasser caused the Dock Owners’ general and specific
injuries, including damages.
The measure of damages in conversion is the fair market value of the property
at the time of conversion plus legal interest to the date of the verdict. Pain
Care First of Orlando, LLC v. Edwards, 84 So. 3d 351, 354 (Fla 5 DCA 2012).
The Court should also find the Dock Owners as the prevailing party in this
case and award attorneys’ fees and costs. See, Moritz; see also, BMR Funding,
LLC.
WHEREFORE, Mr. and Mrs. Anthony (Dock Owners) respectfully request this
Honorable Court to enter judgment in their favor against Mr. Binder (Trespasser)
for:
I.
Ill.
Iv.
Dated
at least $25,000.00 in damages,
attorneys’ fees and costs as provided by law,
post-judgment interest at the statutory rate, and
all further relief this Honorable Court deems appropriate and just.
3/21/2019
RHODES TUCKER
/s/ Charles PT Phoenix
Charles PT Phoenix 2407 Periwinkle Way, Ste 6
The Florida Bar No. 0535591 Sanibel FL 33957
Attorneys for the Plaintiffs (239) 472-1144
cptp@RhodesTucker.com
Complaint
{3404-3404.002 00098958.Docx; 1)
eFiled Lee County Clerk of Courts Page 5
Preview
Filing # 90016747 E-Filed 05/23/2019 12:14:33 PM IN THE CIRCUIT COURT OF THE 20™ JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIviL ACTION William Anthony and Patricia Anthony, Plaintiffs, Case No. v. Jury Trial Demanded William Binder, Defendant. Complaint and Jury Demand The plaintiffs, William Anthony and Patricia Anthony, “Dock Owners”) hereby file this complaint against the defendant, William Binder, (“Trespasser”) demands a trial by jury as of right, alleges as follows: 1. This lawsuit concerns the wrongful entry onto real estate and destruction of a walkway to a legally-permitted dock located in Lee County. 2. The Dock Owners sue for trespass and conversion. Jurisdiction and Venue RHODES TUCKER 3. This Honorable Court has original jurisdiction over the subject matter in this case under Fla. Stat. § 26.012(2)(a)(c), and (g) because the amount in controversy under actions at law in this case exceed the sum having exclusive original jurisdiction in county courts under Fla. Stat. § 34.01(1)() (ie., the amount in controversy exceeds $15,000.00, exclusive of interest, costs, and attorneys’ fees) and the equitable nature of the specific performance remedy. 4, This Honorable Court has personal jurisdiction over the parties under Fla. Stat. § 48.193 under the facts alleged in this complaint. a. The Dock Owners (the plaintiffs) are individuals residing in the State of Florida. b. The Trespasser (the defendant) is an individual residing in the State of Florida. Complaint {3404-3404.002 00098958.Docx; 1) eFiled Lee County Clerk of Courts Page 1RHODES TUCKER Venue for this case is proper in this Honorable Court under Fla. Stat. §§ 47.011 and 47.041 because the causes of action accrued in Lee County, Florida under the facts alleged in this complaint. The Easement, the Dock, and the Walkway 6. The Dock Owners, the plaintiffs, are the record legal owner of a house located at 15710 Catalpa Cove Drive, Fort Myers, Florida. The Dock Owners began construction of the new home in 4/2017 and completed construction in 6/2018. The Dock Owners have beneficial use of an easement recorded at Book 3656, Page 3292 of the Lee County Public Records. A legally-permitted dock structure fits well within the easement benefitting the Dock Owners’ property. The drawing to the left is part of the permit application and approved permit. The drawing to the right is from the recorded easement. The dock included a walkway constructed under the dock permit. The walkway was in a safe condition with many years of remaining service. The following picture to the left depicts the walkway to the dock structure on 8/12/2017. Previously, the Trespasser had wrongfully-entered the property and installed a chain that created a barrier to entering the dock. Then, the Trespasser wrongfully-entered the property again. This time, the Trespasser installed a “no entry” sign. The following picture to the right depicts the walkway to the dock structure on 11/13/2017. Complaint (3404-3404.002 00098958. DoCKs1) eFiled Lee County Clerk of Courts Page 2RHODES TUCKER 9. As the Dock Owners were completing construction on their new home, the Trespasser wrongfully-entered the property again. This time, the Trespasser removed the entire walkway. The following pictures depict the walkway to the Count 1 Trespass 10. This count is a claim for damages resulting from a trespass to real estate. 11. The Dock Owners incorporate the allegations from {{] 1—9 into this paragraph. 12. The Trespasser did not have the Dock Owners’ consent to install the chain, install the “no entry” sign, or dismantle the walkway to the dock, or enter the real estate at any other time for any other reason. 13. Damages are measured in this instance by, among other things, quantifying: a. loss of market value to the real estate, b. loss of use, c. the physical injury to the land, d. discomfort and annoyance to the Dock Owners, and e. emotional distress to the Dock Owners. 14. The Trespasser caused the Dock Owners’ general and specific injuries, including damages. a. The Dock Owners lost the use and benefit of the walkway, dock, and easement. b. The real estate lost market value by not having a usable dock. ec. Physical injury to the land resulted, including the costs of replacing the walkway, removing the “no entry” sign, removing the chain. d. The Dock Owners suffered considerable discomfort, annoyance, and emotional distress resulting from the Trespasser’s intermittent, offensive, and illegal invasions. Complaint {3404-3404.002 00098958.Docx; 1) eFiled Lee County Clerk of Courts Page 3RHODES TUCKER 15. The Court should also find the Dock Owners as the prevailing party in this case and award attorneys’ fees and costs. See, Moritz v. Hoyt Enterprises, Inc., 604 So. 2d 807 (Fla. 1992) (the prevailing party is the party who has prevailed on the significant issues tried before the court); see also, BMR Funding, LLC yv. DDR Corp., 67 So. 3d 1137, 1140 (Fla. 2d DCA 2011) (a claim for attorneys’ fees must be pled, whether based on contract or statute). WHEREFORE, Mr. and Mrs. Anthony (Dock Owners) respectfully request this Honorable Court to enter judgment in their favor against Mr. Binder (Trespasser) for: I. at least $25,000.00 in damages, II. attorneys’ fees and costs as provided by law, Ill. post-judgment interest at the statutory rate, and IV. all further relief this Honorable Court deems appropriate and just. Count 2 Conversion 16. This count is a claim for conversion. 17. The Dock Owners incorporate the allegations from {{] 1—9 into this paragraph. 18. The Trespasser took the wood planks from the walkway to the dock. In doing so, the Trespasser exercised control and ownership over the planks in a manner that is inconsistent with the Dock Owners’ right of possession. 19. The Trespasser did not have the Dock Owners’ consent to remove the walkway to the dock. 20. The Trespasser’s actions, therefore, amount to conversion. 21. |The Dock Owners demanded the Trespasser restore the planks in the walkway or compensate the Dock Owners. 22. The Trespasser refused to appropriately compensate the Dock Owners. Complaint {3404-3404.002 00098958.Docx; 1) eFiled Lee County Clerk of Courts Page 4RHODES TUCKER 23. 24, 25. As a result, the Trespasser caused the Dock Owners’ general and specific injuries, including damages. The measure of damages in conversion is the fair market value of the property at the time of conversion plus legal interest to the date of the verdict. Pain Care First of Orlando, LLC v. Edwards, 84 So. 3d 351, 354 (Fla 5 DCA 2012). The Court should also find the Dock Owners as the prevailing party in this case and award attorneys’ fees and costs. See, Moritz; see also, BMR Funding, LLC. WHEREFORE, Mr. and Mrs. Anthony (Dock Owners) respectfully request this Honorable Court to enter judgment in their favor against Mr. Binder (Trespasser) for: I. Ill. Iv. Dated at least $25,000.00 in damages, attorneys’ fees and costs as provided by law, post-judgment interest at the statutory rate, and all further relief this Honorable Court deems appropriate and just. 3/21/2019 RHODES TUCKER /s/ Charles PT Phoenix Charles PT Phoenix 2407 Periwinkle Way, Ste 6 The Florida Bar No. 0535591 Sanibel FL 33957 Attorneys for the Plaintiffs (239) 472-1144 cptp@RhodesTucker.com Complaint {3404-3404.002 00098958.Docx; 1) eFiled Lee County Clerk of Courts Page 5