JORGE REYES v. JORGE COSCULLUELA

• Court: District Court of Appeal of Florida
• Decided: October 27, 2021
• Docket: 21-0127
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed October 27, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-0127 Lower Tribunal No. 16-18399 ________________

Jorge Reyes, Appellant,

vs.

Jorge Cosculluela, Appellee.

An appeal from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge.

Bales Sommers & Klein, P.A., and Jason Klein, for appellant.

Wolfson Law Firm, LLP, and Jonah M. Wolfson, for appellee.

Before SCALES, MILLER, and BOKOR, JJ.

MILLER, J. After appellant, Jorge Reyes, voluntarily dismissed his nuisance

lawsuit against his neighbor, appellee, Jorge Cosculluela, on the proverbial

eve of trial, the trial court awarded attorney’s fees as a sanction pursuant to

section 57.105(1), Florida Statutes (2021). Having carefully surveyed the

relevant judicial landscape, we conclude Reyes asserted a viable claim,

albeit a weak one, that the incessant noise emanating from a batting cage

on the neighboring property sufficiently interfered with the comfort, repose,

and enjoyment of his home so as to constitute a nuisance under the common

law. Further observing the decision to end litigation has no bearing on the

merits, we find the award of fees was unwarranted. See City of Jacksonville

v. Schumann, 199 So. 2d 727, 729 (Fla. 1st DCA 1967) (“[N]oise can be a

nuisance.”); see also Clark v. Bluewater Key RV Ownership Park Prop.

Owners Ass’n, Inc., 226 So. 3d 276, 279 (Fla. 3d DCA 2017) (upholding an

injunction based on nuisance claims of noise from commercial vehicles);

Lake Hamilton Lakeshore Owners Ass’n, Inc. v. Neidlinger, 182 So. 3d 738,

741 (Fla. 2d DCA 2015) (finding noise from lawful use of airboats can

constitute a nuisance); Erwin v. Alvarez, 752 So. 2d 1261, 1262 (Fla. 2d DCA

2000) (finding noise from lawful ownership of chickens and roosters can

constitute a nuisance); Rae v. Flynn, 690 So. 2d 1341, 1343 (Fla. 3d DCA

1997) (finding noise from barking dogs can rise to the level of a nuisance);

2 Exxon Corp., U.S.A. v. Dunn, 474 So. 2d 1269, 1272 (Fla. 1st DCA 1985)

(finding noise, vibrations, and emissions from the operation of an industrial

plant constituted a nuisance); Roebuck v. Sills, 306 So. 3d 374, 379 (Fla. 1st

DCA 2020) (finding a neighbor’s noisy pool equipment and lighting

constituted a nuisance); Saadeh v. Stanton Rowing Found. Inc., 912 So. 2d

28, 29, 32 (Fla. 1st DCA 2005) (finding noise and traffic congestion from use

of property as a recreational rowing facility can constitute a nuisance);

McClosky v. Martin, 56 So. 2d 916, 918 (Fla. 1951) (“An adjoining property

owner cannot maintain a . . . nuisance on his property which is injurious to

the . . . property rights of an adjacent landowner and not be answerable [for

it].”). Accordingly, we reverse and remand for further proceedings consistent

herewith.

Reversed and remanded.