Third District Court of Appeal
State of Florida
Opinion filed October 27, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0127
Lower Tribunal No. 16-18399
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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);
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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.
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