County Civil Court:  PROPERTY – easement by prescription – adverse possession – elements of hostility or adversity for the entire prescription period (20) years are essential elements of any Florida prescriptive easement claim- evidence shows that the appellants’ use of the disputed portions of the road was not “adverse” or “hostile.” for 20 years;  Final Judgment affirmed.  Quinn v. Assini, et al., No. 512007AP05ES (Fla. 6th Cir. App. Ct. September 18, 2007).  

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

DONALD QUINN AND CINDY DYER,    

                        Appellants, 

v.

 

VINCENT PAUL ASSINI et. al.,                             Case No: 51-2007-AP-05ES

                        Appellees.

____________________________/

 

 

Mark E. Pena, Esq. 

Attorney for Appellant 

 

Scott W. Fitzpatrick, Esq.  

Attorney for Appellees

 

ORDER AND OPINION

 

This appeal arises from the trial court’s order granting appellee’s Motion for Summary Judgment. This Court affirms the decision of the trial court. 

Appellants brought an action for a private prescriptive easement against all appellees. The nature of the easement was to keep Konny Lane, a private road, open in both directions, since appellees had erected a fence on one side of Konny Lane.  The appellant’s each attached an affidavit  to the complaint.  The affidavits set forth the fact that they had been using the lane continuously over the past 22 years, neighbors have seen them using the lane, and that they never received any specific permission from anyone to use Konny Lane. Appellees filed an answer and discovery proceeded. During the deposition , appellant admitted that before four or five years ago (when Carlos Villanueva purchased his property), no one had ever attempted to stop them from using Konny lane or said anything negative to them regarding their use of Konny Lane.  After having depositions of both appellants and three of the appellees, appellees moved for summary judgment. The basis of the argument was that the pleadings, depositions, and affidavits filed in the case show that the plaintiffs’ use of the disputed portions of Konny Lane was not “adverse” or “hostile” for 20 years, the time required to establish prescriptive rights. Consequently,  appellees, argued, there were no genuine issues of material fact because the elements of hostility or adversity for the entire prescription period (20) years are essential elements of any Florida prescriptive easement claim.  After a hearing, the lower court granted appellees motion for summary judgment.

In a Motion for Summary Judgment, the initial burden of proof is on the movant and absent his sustaining it he is not entitled to a Summary Judgment regardless of whether the opposing party comes forward with any proof or not. Materese v. Leesburg Elks Club, 171 So. 2d 606, 608 (Fla. 2d DCA 1965). In other words, if the moving party comes forward with evidence that demonstrates there is no genuine issue of material fact, the burden then shifts to the opposing party to come forward with affidavits or record evidence demonstrating that there is a genuine issue of material fact.  In dealing with a motion for summary judgment, the court may not require the non-moving party to come forward with any proof until the moving party has discharged its initial burden. Once the movant has met his burden and the opposing party has come forward with affidavits or record evidence to the contrary, the test to be used by the court in ruling on the motion is still extremely stringent. “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied. Nard, Inc., v. DeVito Contracting and Supply, Inc., 769 So. 2d 1138 ,1140 (Fla. 2d DCA 2000).  

In this case, the basis of appellees Motion for Summary Judgment  was that the pleadings, depositions, and affidavits filed in the case show that the plaintiffs’ use of the disputed portions of Konny Lane was not “adverse” or “hostile” for 20 years, the time required to establish prescriptive rights. Consequently,  appellees, argued, there were no genuine issues of material fact because the elements of hostility or adversity for the entire prescription period (20) years are essential elements of any Florida prescriptive easement claim.  This argument is supported by case law. In Guerard v. Roper, 385 So. 2d 718 (Fla. 5th DCA 1980), the Court held that  “[t]he use or possession must be inconsistent with the owners use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner has a right to a legal action to stop it, such as an action for trespass or ejectment.” Id. at 719.   Therefore, “[i]f  the use is not exclusive and not inconsistent with the rights of the owner of the land to its use and enjoyment, the presumption is that such use is permissive, rather than adverse” and a prescriptive easement does not exist.  The Court also found that the absence of specific permission from the owner is not evidence of hostility or adversity.  Having sustained their burden, the burden shifted to the appellants to come forward and demonstrate appellant met the requirements for prescriptive easement. However, neither appellants affidavits nor their depositions assert any adversity or hostility. In fact, it is just the opposite.  That is, they asserted the use was consensual and used by everyone.  Appellant’s affidavit asserted that they had been using the lane continuously over the past 22 years, neighbors have seen them using the lane,  and that they never received any specific permission from anyone to use Konny Lane. They also admitted that before four or five years ago (when Carlos Villanueva purchased his property), no one had ever attempted to stop them from using Konny Lane or said anything negative to them regarding their use of Konny Lane.  Since there is no evidence in the record which indicates that appellants “adversely” or “hostilely” used the easement in question for a period of twenty years, the decision of the trial court must be affirmed. .  

Accordingly, in this case, the evidence shows that the appellants’ use of the disputed portions of the road was not “adverse” or “hostile” for 20 years, and consequently, there are no genuine issues of material fact.   It is therefore,

ORDERED AND ADJUDGED that the decision of the trial court is AFFIRMED. 

            DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this ________ day of  August, 2007.

 

                                                                                    _____________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    __________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

                                                                                                                                                                                                                                                                                   

Copies furnished to:

Mark E. Pena, Esq.

Scott W. Fitzpatrick, Esq.