SANDRA SHAW, ET AL.

v.

ANA CALLES, ET AL.

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.

2 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

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.

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.