#1369890, Margaret Dent et al. v. Alan Van Vliet et al. filed 6/2/10

Plaintiff’s/Cross-defendant’s Attorney: Charles S. Bargiel

Defendant’s/Cross-complainant’s  Attorney: Bradford F. Ginder

Verdict:  Specific performance granted                       Dept. 5, Hon. Colleen K. Sterne

Plaintiffs and Defendants are adjacent property owners on Fernald Point at Miramar Beach.  Plaintiffs acquired their property  in 1975;  Defendants acquired their property in 2009 after unsuccessful attempts to purchase were made by Plaintiffs.   Plaintiffs had negotiated two easements with  Defendant’s predecessor-in-interest in 1990.  One easement granted Plaintiffs access over Defendants’ property for parking and the exclusive use of a carport on Defendants’ property, and an easement granted to Defendants' predecessor allowed access over Plaintiff’s parcel for ingress and egress to and from the beach, and also provided for exclusive use of a beach cabana located on Plaintiff’s parcel at the beach front.  The 1990 easement agreement set out the respective rights and responsibilities  of the parties with regard to the easements, subject to certain conditions and restrictions, including that Defendant’s use of the cabana be in compliance with a conditional use permit issued when the cabana, originally built in 1965, was reconstructed in 1983 after being destroyed by a storm.  The agreement also prohibited Defendants from changing the external appearance of the cabana, increasing its size, or making any improvements to it without the consent of Plaintiff, which consent should not be unreasonably withheld.  When Defendants acquired their property in 2009, they approached Plaintiffs for consent to make improvements and perform deferred maintenance to the cabana, but Plaintiffs’ withheld consent.  Litigation commenced thereafter with both sides claiming the other was in violation of the 1990 easement agreement.  Both parties sought specific performance, declaratory relief and attorney’s fees.  After sixteen days of trial testimony the court determined Defendants could move forward with proposed maintenance and improvements subject to court supervision.  All requests for attorney’s fees by both sides were deemed as premature.  Plaintiff filed an appeal.

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