HOLMES BEACH – On March 20, a jury ruled in favor of several plaintiffs involved in a civil lawsuit pertaining to the decades-long use of a beach access path located on an easement associated with the residential property at 103 51st Street owned by Larry and Linda Davis.
The street-end beach access path is located near the intersection of 51st Street and 5th Avenue.
As of Monday, April 6, 12th Judicial Circuit Court Judge Charles Sniffen had not yet issued his final judgment in the wake of the jury’s verdicts.
And on March 27, a Holmes Beach police officer responded to a new complaint involving the ongoing dispute.
Filed on Nov. 14, 2023, the civil lawsuit complaint alleges that after more than 30 years of co-existence, the Davises began to obstruct the easement path to prevent residents of the Gutierrez subdivision from using the easement path that provides them access to the beach and the Gulf.
The lawsuit names Juan Fabrega Sr., Gail Fabrega, Juan Fabrega Jr., Susan Gutierrez and several other Holmes Beach property owners in the Gutierrez subdivision as plaintiffs.
The lawsuit names Larry Davis, Linda Davis, 5102 5th Street LLC, the city of Holmes Beach and several others as defendants.
THE VERDICT
On March 20, the jury handed down a verdict that answered “yes” to the question: “Did one or more of the plats for the Gutierrez Subdivision create an easement for beach access at or near 51st Street?”
The jury also answered “yes” to the question: “Did one or more deeds granting property to the plaintiffs reference the plats for the Gutierrez Subdivision that created the easement?”
The jury answered “yes” to the questions of whether the easement benefits the plaintiffs referenced in Plat 3 and Plat 2.
The jury answered “yes” to each plaintiff mentioned in the question: “Did one or more of the following plaintiffs establish the existence of an easement that is beneficial to him or her, and that being deprived of use of the easement would reduce the value of his or her property?”
THE LAWSUIT
The lawsuit complaint says, “The Gutierrez Plat dedicates a beach access ‘walk easement’ along the north 2.5 feet of the Davis property boundary line and the south 2.5 feet of the 5102 (5th Avenue) property boundary line for the benefit of the property owners in the Gutierrez Subdivision.
“For the past 73 years, the easement has been used openly as a private beach access to the Gulf of Mexico by the property owners in the Gutierrez Subdivision. Additionally, the city of Holmes Beach and Manatee County reflect the existence of the easement in county records,” the complaint says.
“The Davises purchased the property on or about April 29, 1988. For the past 33 years, the Davises did not interfere with the owners of the Gutierrez Subdivision using the easement,” the complaint says.
“Recently, the Davises began a campaign to prevent owners within the Gutierrez Subdivision from enjoying or accessing the easement.
“Mrs. Davis then planted obstructive plants alongside and within the easement and told property owners within the Gutierrez Subdivision that they were prohibited from trimming back the plantings,” the complaint says.
“In September of 2023, the Davises’ behavior escalated when they filled the entire length of the easement with large boulders in an effort to completely prevent access. In addition to ignoring the plaintiffs’ requests, the Davises posted ‘no trespassing’ signs and had an armed security officer posted at the entrance of the easement,” the complaint says.
The plaintiffs seek a court declaration that they have an existing and valid easement right for the use of the easement path. They also seek an injunction that prevents the Davises from obstructing or blocking the plaintiffs’ easement access.
DAVISES’ RESPONSE
On March 25, 2024, the Davises’ attorney filed an “Answer, defenses and demand for a jury trial” document on their behalf. The document denies most of the allegations stated in the lawsuit complaint.
As defenses, the document says, “Plaintiff fails to state a cause of action upon which relief can be granted. Plaintiff asserts the existence of an easement to access the beach, yet the language which forms the basis of the claimed beach access easement does not reference a path to access the beach. Any easement which may have been created has been abandoned and therefore does not exist,” the defense document states.
“Since there are multiple ways to access the beach in close proximity to the claimed beach access easement, there is no easement based on necessity,” the defense document says.
POLICE CALLED
According to the Holmes Beach Police Department incident report, Officer Andrew Adkins was dispatched to the Davis property at approximately 8 p.m. on March 27. Upon arrival, Officer Adkins spoke to the complainant, Larry Davis.
“Larry stated there was recently a civil trial regarding the ownership and/or property rights of this easement, but the judge’s verdict is still pending,” the police report says. “Larry showed me the easement which appeared to have been recently cleared of any vegetation. Larry also showed me trash cans in front of 5102 5th Ave. which were next to the road and full of fresh cut vegetation. This led me to believe whoever removed the vegetation is likely affiliated with 5102 5th Ave. in some capacity,” the police report says.
A new home is being built on the 5102 5th Ave. property, on the other side of the 2.5-foot-wide easement path. The Manatee County Property Appraiser’s Office lists 5102 5th St. LLC as the property owner. The Florida Division of Corporations lists Shawn Kaleta as the manager of the limited liability corporation.
POST-VERDICT HEARING
On Thursday, April 2, Judge Sniffen conducted via Zoom an expedited case management conference requested by the Davises in the wake of the police being called.
Attorney Catherine DiPaolo represented the Davises and attorney Amanda Kison represented some of the plaintiffs.
Sniffen said the Davises’ request for an expedited case management conference “apparently relates to the alleged use of the easement recently.”
DiPaolo said the Davises were not home when the alleged March 27 trimming activities occurred, but when the arrived at their property they saw four large trash cans filled with sea oat and sea grape trimmings; and the dead carrotwood tree had been partially removed. DiPaola noted sea oat and sea grape trimming is regulated by state law.
DiPaolo said she received communication from Kison that stated the only landscape trimming she was aware of was the partial removal of the dead tree.
Kison said her clients have maintained the easement area for many years and Larry Davis recently acknowledged the dead tree needed to be removed.
Kison said the tree bowed over the easement path and there was a concern that it was going to fall.
“It was also hanging over a portion of Mr. Kaleta’s roof, so it was cut down to protect the safety of people utilizing the easement,” Kison said.
Kison said no live plants were removed and the trimming activities were limited to items that extended into the path.
Sniffen then weighed in and said, “Having sat through the entirety of a long trial, and hearing a lot about the history of property, one of the issues that came up was the Fabregas and everybody that had similar rights spent decades pushing branches aside to walk through an easement. Its entire purpose was just to get access to the beach.
“I haven’t entered a final judgement yet, but my observation is that once the dispute began, the Fabregas started taking a different character of ownership over the easement. They put down those rocks, they lined the side, they started cutting away the impediments. Everything that happened after that point was entirely inconsistent with the decades of use to get to the beach. It’s become obvious to me that the character of the easement changed entirely, and it went from decades of being overgrown to being completely clear-cut and paved with what essentially amounts to gravel and lined (with rocks),” Sniffen said.
“I don’t think I can issue any kind of order enjoining the plaintiffs from doing anything at this point, but they need to be aware that it’s possible that the court could rule that they’ve already overburdened the servient estate because they’ve changed the character of the easement. I’m not sure why all of the sudden the plaintiffs were suddenly motivated to change the character of the easement, but they did,” Sniffen said.
“If it were proved to me that there was a damaged tree that threatened people from walking, then I might agree that they would be entitled to do that, but I already know that they’ve done things that aren’t just purely for maintenance, but are for beautification or otherwise,” the judge said.
“I’m not going to make any order today, but I’ll ask Miss Kison to communicate with her clients that it’s the court’s view that they’ve already changed the character of the easement. I’m going to ask that the character of the easement not be changed any further until the court enters its final judgment, which will be soon, hopefully by next week,” Sniffen said.
