GARDEN STREET IRON & METAL, INC., A FLORIDA CORPORATION, APPELLANT,
v.
JACK TANNER, APPELLEE
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Garden Street Iron & Metal sued Jack Tanner for breach of an oral contract and trespass regarding tires left on Garden Street's property after purchasing Tanner's scrap metal business. The court affirmed summary judgment dismissing the breach of contract claim as time-barred, but reversed and remanded the trespass claim because the statute of limitations did not begin running until Garden Street withdrew its consent to the tires' presence in August 1995.
The court held that the four-year statute of limitations for the oral contract claim had expired, and summary judgment was properly granted on that count. However, for the trespass claim, the limitations period did not begin until Garden Street withdrew its consent to the tires' presence in August 1995, making the October 1997 suit timely and therefore summary judgment on the trespass count was improper.
[1] A landowner's cause of action for trespass accrues when the landowner withdraws consent for the presence of an object on their property.
[2] The statute of limitations for a trespass claim begins to run when the landowner retracts permission for the use of the property.
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Join FLexlaw to unlock all legal intelligence“One can commit a trespass to real property by leaving something on another's land after the landowner has withdrawn his consent to its presence.”
Establishes the legal standard for when a trespass occurs through abandoned or retained items on property.
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Join FLexlaw to unlock all legal intelligenceGarden Street purchased Tanner's scrap metal business in 1988, at which time used tires remained on the property. Garden Street's president, Earl Webe…
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NORTHCUTT, Judge.
Jack Tanner maintained that the statute of limitations barred both counts of the lawsuit filed against him by Garden Street Iron & Metal, Inc., and he convinced the circuit court to grant him a summary judgment. We agree that the limitations period had expired on Garden Street’s attempt to enforce an oral contract. In that respect we affirm the summary judgment without further discussion. But Garden Street’s other allegation, of trespass, was timely. We reverse the summary judgment on that count.
When reviewing a summary judgment, we must view the facts in the light most favorable to the nonmoving party. See Valk v. J.E.M. Distrib. of Tampa Bay, Inc., 700 So. 2d 416 (Fla. 2d DCA 1997). As such, the evidence showed that this dispute emanated from Garden Street’s purchase of Tanner’s scrap metal business in 1988. At that time, there were a number of used tires on the property. Garden Street did not want the tires. According to Earl Weber, the president of Garden Street, Tanner planned to remove them. Weber knew the endeavor would be costly. He testified that he allowed Tanner to leave the tires on the property until he could arrange their disposal.
Tanner moved some of the tires in 1990. Still, Weber testified, Garden Street did not impose a deadline for completing the task. Finally, however, in August 1995 Garden Street sent Tanner a letter demanding that he take the remaining tires from the property. Tanner disavowed any obligation to do so. Garden Street filed suit in October 1997, contending among other things that Tanner was trespassing on its property.
One can commit a trespass to real property by leaving something on another’s land after the landowner has withdrawn his consent to its presence. Anchorage Yacht Haven Inc. v. Robertson, 264 So. 2d 57 (Fla. 4th DCA 1972). In that scenario, the landowner’s cause of action for trespass accrues, and the statute of limitations period begins, when he retracts his permission for the use of the property. Merrill Stevens Dry Dock Co. v. G & J Inv. Corp., Inc., 506 So. 2d 30 (Fla. 3d DCA 1987).
Here, the circuit court posited that the limitations period for Garden Street’s trespass action began in 1990, when Tanner retrieved some of the tires but left others behind. If so, Garden Street’s suit would have been barred by the four-year limitations statute applicable to trespass actions. § 95.11(3)(g), Fla. Stat. (1995). But the record contained evidence that Garden Street consented to the presence of the remaining tires and did not withdraw its consent until August 1995, when it sent its demand for their removal. Under the reasoning of Merrill Stevens, only then did the limitations period begin. See also § 95.031, Fla. Stat. (1995). Therefore, Garden Street’s October 1997 trespass count should have survived Tanner’s motion for summary judgment.
Affirmed in part, reversed in part and remanded for further proceedings.
WHATLEY, A.C.J., and SILBERMAN, J., Concur.
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Sarkis Konsulian v. Busey Bank, 61 So. 3d 1283 (Fla. 2d DCA 2011)…wing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the nonmoving party. See Suarez v. City of Tampa, 987 So. 2d 681, 682-83 (Fla. 2d DCA 2008) (citing Garden St. Iron & Metal, Inc. v. Tanner, 789 So. 2d 1148, 1149 (Fla. 2d DCA 2001)). “The party moving for summary judgment has the burden of showing the nonexistence of [a] genuine issue of material fact.” Richardson v. Wal-Mark Contracting Group, LLC, 814 So. 2d 534, 535 (Fla. 2d DCA 2002) (citing Holl v…
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Harper v. Toler, 884 So. 2d 1124 (Fla. 2d DCA 2004)…e novo review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.2000). “When reviewing a summary judgment, we must view the facts in the light most favorable to the nonmoving party.” Garden St. Iron & Metal, Inc. v. Tanner, 789 So. 2d 1148, 1149 (Fla. 2d DCA 2001). “[Reasonable inferences should be resolved against the mov-ant.” Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla.2003). In a negligence case, the de novo review of a summary judgment is guided by the…
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Smith v. Fla. Power & Light Co., 857 So. 2d 224 (Fla. 2d DCA 2003)…to de novo review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla.2000). “When reviewing a summary judgment, we must view the facts in the light most favorable to the nonmoving party.” Garden St. Iron & Metal, Inc. v. Tanner, 789 So. 2d 1148, 1149 (Fla. 2d DCA 2001). In a negligence case, the de novo review of a summary judgment is guided by the principle that “[sjummary judgments should be cautiously granted.” Moore v. Morris, 475 So. 2d 666, 668 (Fla.1985). Summary judgment is only ap…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Merrill Stevens DRY Dock Co. v. G & J Invs. Corp., Inc., 506 So. 2d 30 (Fla. 3d DCA 1987)
- Inversiones Armadeni, S.A. v. Tejedo, 700 So. 2d 416 (Fla. 3d DCA 1997)
- Valk v. J.E.M. Distribs. OF Tampa BAY, Inc., 700 So. 2d 416 (Fla. 2d DCA 1997)
- Anchorage Yacht Haven, Inc. v. Robertson, 264 So. 2d 57 (Fla. 4th DCA 1972)