IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
HAGERTYSMITH, LLC,
Appellant,
v. Case No. 5D16-3655
TIMOTHY GERLANDER, CHRISTINE
GERLANDER, KASHIF BATTLA, MARK
PHANEUF AND ROSEANN PHANEUF,
Appellees.
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Opinion filed October 20, 2017
Appeal from the Circuit Court
for Orange County,
Janet C. Thorpe, Judge.
Barry Rigby, of Law Offices of Barry Rigby,
P.A., Orlando, for Appellant.
Erik E. Hawks, of Walsh Banks, PLLC,
Orlando, for Appellees, Timothy Gerlander
and Christine Gerlander.
No Appearance for Appellees, Kashif
Battla, Mark Phaneuf and Roseann
Phaneuf.
LAMBERT, J.
HagertySmith, LLC ("HagertySmith") appeals from a final summary judgment
entered in favor of its former lakefront neighbors, Timothy Gerlander and Christine
Gerlander ("the Gerlanders"), on its claim that it sustained damages as a result of the
Gerlanders' construction of a dock and walkway that obstructed HagertySmith's view and
enjoyment of the abutting lake. The trial court ruled that HagertySmith had no legally
cognizable cause of action for damages because it failed to allege a statutory or
contractual basis for its claimed right to an unobstructed view of the lake. We reverse.
HagertySmith and the Gerlanders owned adjacent lakefront real property located
on Lake Tibet Butler in Orange County, Florida. The Gerlanders built a dock and walkway
that extended into the lake in front of HagertySmith's property. HagertySmith eventually
sold its property to a third party, but it asserts that the property's sale price was
significantly reduced due to the Gerlanders' dock and walkway diminishing the fair market
value of HagertySmith's property. HagertySmith sued the Gerlanders for money
damages for the difference between the sale price of its property and the fair market value
of the property without the obstructed view.
Contrary to the trial court's analysis, owners of real property abutting a lake have
several special common law littoral rights,1 including the right to an unobstructed view of
the lake. See, e.g., Walton Cty. v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102,
1111 (Fla. 2008). The record in this case is clear that the Gerlanders' dock and walkway
encroached on that portion of the lake abutting HagertySmith's property; that is, upon
HagertySmith's littoral rights. Thus, the trial court erred in concluding that HagertySmith
had no cognizable cause of action.
1 HagertySmith's counsel referred to these rights as "riparian" rights, which is the
more commonly used phrase. “Technically, ‘[t]he term riparian owner applies to
waterfront owners along a river or stream, and the term littoral owner applies to waterfront
owners abutting an ocean, sea, or lake.’” 5F, LLC v. Dresing,
142 So. 3d 936, 939 n.3
(Fla. 2d DCA 2014) (quoting Walton Cty. v. Stop the Beach Renourishment, Inc.,
998 So.
2d 1102, 1105 n.3 (Fla. 2008)). Here, because HagertySmith and the Gerlanders are
waterfront owners abutting a lake, the rights being affected are littoral.
2
However, our review of the record shows that HagertySmith's present cause of
action is insufficiently pled. Under these circumstances, where the summary judgment is
based on the mistaken assumption that the party has no cognizable cause of action, but
the cause of action as pled is presently legally insufficient, the appropriate remedy is to
reverse with directions to enter a dismissal without prejudice with leave to amend. See
Brumer v. HCA Health Servs. of Fla., Inc.,
662 So. 2d 1385, 1386 (Fla. 4th DCA 1995)
("Where a summary judgment is in essence a substitute for a motion to dismiss for failure
to state a cause of action, leave to amend should be granted unless it is clear that no
viable cause of action can be stated."). Because HagertySmith may be able to plead a
viable cause of action for private nuisance, see Game & Fresh Water Fish Comm'n v.
Lake Islands, Ltd., 407 So. 2d 189, 193 (Fla. 1981) (recognizing a cause of action for
private nuisance for an obstruction or interference with a riparian owner's rights), we
reverse the final summary judgment in favor of the Gerlanders with directions for the trial
court to dismiss HagertySmith's present cause of action against the Gerlanders without
prejudice and provide HagertySmith leave to amend its complaint.2
REVERSED and REMANDED, with directions.
COHEN, C.J. and SAWAYA, JJ., concur.
2Whether HagertySmith is able to eventually prove its claim for damages or if the
Gerlanders have any defenses to the claim is not before us, and we express no position
on the same.
3
