DAVID R. ERWIN AND ANN ERWIN, APPELLANTS,
v.
ABEL ALVAREZ AND ROMONA L. ALVAREZ, APPELLEES
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In this neighborhood nuisance dispute, the appellate court reversed a portion of a contempt order that had authorized appellees to continue maintaining chickens in compliance with county ordinances. The court held that judicial nuisance findings are not displaced by compliance with legislative or administrative standards.
The court reversed the problematic paragraph of the contempt order, holding that an activity can constitute a judicially abatable nuisance notwithstanding full compliance with legislative or administrative rules, and that the trial court lacked authority to issue an advisory opinion about future conduct not properly submitted for consideration.
[1] A court order finding a party in contempt for violating a prior nuisance abatement order may be reversed if it effectively authorizes the nuisance to continue despite com…
[2] A court order may not provide an advisory opinion on future conduct that was not submitted for the court's consideration.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[A] given activity can constitute a judicially abatable nuisance notwithstanding full compliance with either legislative mandate or administrative rule.”
Establishes that judicial nuisance findings are not displaced by compliance with ordinances or regulations
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Join FLexlaw to unlock all legal intelligenceIn 1994, the Erwins filed a nuisance complaint against their neighbors, the Alvarezs, regarding noise from chickens. A jury trial in 1996 found a nuis…
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STRINGER, Judge.
In this longstanding neighborhood dispute, appellants, David and Ann Erwin, appeal an order of contempt entered in their favor against appellees, Abel and Ro-mona Alvarez. We reverse the challenged portions of the contempt order. In 1994, appellants filed a complaint against their neighbors, appellees, alleging that the noise created by appel-lees’ chickens constituted a nuisance. In 1996, a jury trial was held, and the jury found the existence of a nuisance. Based on the jury’s verdict, the court entered an order requiring appellees to reduce the noise level. However, the nuisance remained unabated, and in 1998, appellants found it necessary to file a motion for order to show cause as to why appellees should not be held in contempt for failing to comply with the original order. Following a hearing on the motion, the trial court found appellees to be in contempt.
Appellants do not challenge the entire contempt order, but they object to paragraph two which reads:
The Court Orders and Adjudges that so long as the Alvarezes limit the number of chickens and roosters to the twenty-five (25) allowed by Collier County Ordinances the Court will deem the Alva-rezes to have abided by the previous Order of April 22, 1996 with respect to the Private Nuisance found to exist by the jury through their verdict at the trial of March 7,1996.
By entering this order, the court has essentially authorized the nuisance to continue, as long as appellees comply with the Collier County ordinance. This is error. “[A] given activity can constitute a judicially abatable nuisance notwithstanding full compliance with either legislative mandate or administrative rule.” State ex rel. Shevin v. Tampa Elec. Co., 291 So. 2d 45, 48 (Fla. 2d DCA 1974); see also State ex rel. Gardner v. Sailboat Key, Inc., 295 So. 2d 658 (Fla. 3d DCA 1974). Moreover, it is an unauthorized advisory opinion about future conduct which was not submitted for the court’s consideration. See Department of Revenue v. Kuhnlein, 646 So. 2d 717 (Fla.1994).
We, therefore, reverse. On remand paragraph two shall be stricken from the contempt order. Reversed in part and remanded with directions.
ALTENBERND, A.C.J., and CASANUEVA, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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THE Lake Hamilton Lakeshore Owners Ass'n, Inc. v. Neidlinger, 182 So. 3d 738 (Fla. 2d DCA 2015)…was required to determine if they constitute a nuisance as a matter of law, and compliance with an agency’s regulations is irrelevant to the court’s determination of a nuisance. See id. This court'reaffirmed the Shevin holding in Erwin v. Alvarez, 752 So. 2d 1261, 1262 (Fla. 2d DCA 2000). in Erwin, the appellants alléged that the noise created by' the appellees’ chickens constituted a nuisance. Id. Relying on Shevin, this court reversed 'the trial court’s ruling that, as long as' the appellees limit the numb…
Authorities Cited
- Dep't OF Revenue v. Kuhnlein, 646 So. 2d 717 (Fla. 1994)
- State of Fla. ex rel. Robert L. Shevin v. Tampa Elec. Co., 291 So. 2d 45 (Fla. 2d DCA 1974)
- State of Fla. ex rel. Frank C. Gardner v. Sailboat KEY, Inc., 295 So. 2d 658 (Fla. 3d DCA 1974)