Sandra Shaw v. Ana Calles

• Court: District Court of Appeal of Florida
• Decided: May 14, 2025
• Docket: 3D2023-2133
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 14, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-2133 Lower Tribunal No. 17-24019 ________________

Sandra Shaw, et al., Appellants,

vs.

Ana Calles, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge.

Sutton Pomares Law Group P.A. and John R. Sutton, for appellants.

Feiler, Leach & Chong and Martin E. Leach, for appellees.

Before MILLER, GORDO, and BOKOR, JJ.

MILLER, J. In this nuisance case, appellants, Rowland J. Shaw and Sandra Shaw,

challenge a final judgment granting a judgment notwithstanding the verdict

setting aside monetary damages the jury awarded against appellees, Ana

Calles and Robert Montenegro. On appeal, the Shaws contend the award

withstands factual and legal scrutiny and therefore must be reinstated.

BACKGROUND

The Shaws have resided in Bonanza Ranch Estates in Homestead,

Florida, on a 1.25-acre parcel since 2008. In 2014, Calles and Montenegro

moved into a home on an adjacent property. The latter couple owns more

than one hundred exotic birds, including macaws and other parrots. The

birds generated feces accumulations, odor, debris, noise, and a rodent

infestation.

In 2017, the Shaws filed suit against Calles and Montenegro in the

circuit court, asserting negligence and nuisance claims. They sought

injunctive relief and damages for diminution in property value and loss of

quiet enjoyment. Calles and Montenegro raised the Florida Right to Farm

Act as an affirmative defense, and the case proceeded to trial. See § 823.14,

Fla. Stat. (2017).

At the trial, the Shaws presented audio-visual recordings, decibel

meter readings, and testimony detailing sleep-related disruptions and their

2 inability to use their backyard and nearby stream due to the odor, debris,

noise, and dead rodents. 1

The jury returned a verdict in favor of the Shaws, finding a nuisance

and awarding $76,500.00 in damages. The trial court found that the Shaws

had neither pleaded nor proven compensable damages and entered a

judgment notwithstanding the verdict, but separately issued an order

granting injunctive relief requiring Calles and Montenegro to relocate the

loudest birds, move cages away from the shared property line, and cover the

cages from dusk until dawn. This appeal ensued. We have jurisdiction. See

Fla. R. App. P. 9.030(b)(1)(A).

STANDARD OF REVIEW

“The standard of review on appeal of the trial court’s ruling on a

motion . . . for judgment notwithstanding the verdict is de novo.” Miami-Dade

County v. Eghbal, 54 So. 3d 525, 526 (Fla. 3d DCA 2011). Conversely, “[w]e

review the jury’s award of damages to see if it is supported by substantial

competent evidence viewing the facts and all reasonable inferences in the

1 In closing argument, the Shaws’ attorney asked the jury to award between one dollar and one hundred dollars per day for the years preceding suit. The jury awarded $76,500.00 in damages, equaling less than $25.00 per day over a nine-year period.

3 light most favorable to the verdict.” Alvarez v. All Star Boxing, Inc., 258 So.

3d 508, 512 (Fla. 3d DCA 2018).

ANALYSIS

There is no dispute that Calles and Montenegro created and

maintained a nuisance; the only dispute involves damages. Under Florida

law, a plaintiff in a nuisance case may seek injunctive relief to abate the

nuisance and damages for injuries sustained as a result of the nuisance.

See, e.g., Roebuck v. Sills, 306 So. 3d 374, 379 (Fla. 1st DCA 2020)

(“Depending on the facts shown at trial, either or both injunctive relief and

damages [are] available to abate [a] nuisance and mitigate [its] harmful

effects . . . .”). Damages include economic losses incurred to mitigate the

nuisance and lost rental value, business income, or diminution in property

value. See 38 Fla. Jur. 2d Nuisances § 86 (“Where the nuisance is a

temporary one continuing to the date of trial, the proper measure of damages

is the loss of use value or loss of rental value, depending on whether the

plaintiff occupied the property personally or whether it was rented to

another.”). “In addition, the plaintiff may recover such special or incidental

damages as can be shown, such as personal discomfort, inconvenience,

annoyance, injury to health, and the like suffered not only by the plaintiff but

also by members of his or her family.” Id.; see also Exxon Corp., U.S.A. v.

4 Dunn, 474 So. 2d 1269, 1274 (Fla. 1st DCA 1985) (“[I]n an action for

damages arising from a nuisance, a plaintiff may recover not only for physical

injuries but also for annoyance, discomfort, and inconvenience.”); Nitram

Chemicals, Inc. v. Parker, 200 So. 2d 220, 225 (Fla. 2d DCA 1967) (“In

addition to the damages resulting from the depreciation, rental or use value

of the property, the plaintiff may recover such special or incidental damages

as he may be able to prove, i.e., annoyances, discomfort, inconveniences,

or sickness.”); QBE Specialty Ins. Co. v. Scrap, Inc., No. 3:16CV212-

MCR/EMT, 2018 WL 7198151, at *6 (N.D. Fla. Mar. 2, 2018) (noting that

“annoyance, discomfort and/or inconvenience” are “possible grounds for

nuisance damages”) (citing Exxon Corp., 474 So. 2d at 1273)).

Noneconomic nuisance damages must “be specially stated” in the

operative pleading. A. & P. Food Stores, Inc. v. Kornstein, 121 So. 2d 701,

705 (Fla. 3d DCA 1960) (on rehearing); see also Fla. R. Civ. P. 1.120(g)

(“When items of special damage are claimed, they shall be specifically

stated.”). This is because special damages must be “particularly specified in

a complaint in order to apprise the opposing party of the nature” of the

damages claimed. Land Title of Cent. Fla., LLC v. Jimenez, 946 So. 2d 90,

93 (Fla. 5th DCA 2006); see also id. (“The purpose of the special damages

rule is to prevent surprise at trial.”).

5 Here, the Shaws requested damages for loss of quiet enjoyment in

their complaint, and they introduced evidence at trial to support their

impairment of use of the property, along with their diminished quality of life.

Accordingly, we conclude they sufficiently pled and proved nuisance

damages. See Exxon Corp., 474 So. 2d at 1273–74 (“The ‘injury’ arising

from a nuisance is annoyance, discomfort, inconvenience, or sickness. The

judge did not here award damages for mental suffering as such, nor

specifically for physical illness alone, but for those damages generally

caused by a nuisance.”) (citing Nitram Chemicals, 200 So. 2d at 225);

Kingston Square Tenants Ass’n v. Tuskegee Gardens, Ltd., No.

916029CIVUNGAROBENAG, 1994 WL 808074, at *7 (S.D. Fla. June 8,

1994) (“[T]he jury may award damages based on its determination of what

would compensate a reasonable person enduring exposure to the

circumstances constituting the nuisance.”). We therefore reverse and

remand for reinstatement of the verdict.

Reversed and remanded.