Opinion
No. 88-239.
December 6, 1988.
Appeal from the Circuit Court for Dade County, Frederick N. Barad, J.
Byrd and Murphy, Fort Lauderdale, and Russ Murphy, for appellant.
Stabinski Funt, Miami, and Mark Goldman, for appellee.
Before NESBITT and FERGUSON, JJ., and VANN, HAROLD R., Associate Judge.
We reverse the order granting summary judgment to appellee/defendant below. By its introduction of a written covenant expressly prohibiting building on its easement, appellant established that appellee's construction of an addition to her home constituted an encroachment on the appellant's right-of-way interest. Material questions of fact remain as to whether appellee's construction unreasonably interferes with the appellant's right-of-way interest as well as the extent of damages suffered by the appellant and the appropriate remedy. Upon remand, appellant should be offered leave to amend its pleadings to correct infirmities. Furthermore, appellee should be granted an opportunity to establish equitable defenses. Accordingly, the order denying relevant discovery is also reversed.
REVERSED AND REMANDED.