Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harkless v. Laubhan

Florida Court of Appeals, Second District

July 10, 2019

DAVID L. HARKLESS, Appellant,
v.
DAVID A. LAUBHAN and SUSAN W. LAUBHAN, Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for DeSoto County; Kimberly C. Bonner, Judge.

          Glenn N. Siegel of Glenn N. Siegel, P.A., Port Charlotte, for Appellant.

          Hank B. Campbell and Hannah Dantzler-Fleming of Campbell, Trohn, Tamayo & Aranda, P.A., Lakeland, for Appellees.

          MORRIS, JUDGE.

         David L. Harkless appeals from the final judgment entered in favor of David A. Laubhan and Susan W. Laubhan on their counterclaim for a declaratory judgment regarding the right to receive rental income pursuant to a cell tower lease. Because we have determined that the trial court erred in concluding that the Laubhans were bona fide purchasers without notice of Harkless's right to receive the rental income at the time they purchased the subject property, we reverse.

         BACKGROUND

         A majority of the underlying facts are set forth in this court's opinion from a prior appeal. Harkless v. Laubhan, 219 So.3d 900 (Fla. 2d DCA 2016). Thus, only a brief recitation of undisputed facts is necessary here. Harkless originally entered into a cell tower lease agreement with Verizon which provided that Harkless would receive rental income in return for allowing Verizon to build a cell tower on his property. The lease itself was never recorded, but a memorandum of the lease was recorded. However, the memorandum did not mention the right to receive rental income, and it is undisputed that no written document explicitly referencing this right was ever recorded.

         At the time the lease was drafted, Harkless and the Laubhans were neighbors. Mrs. Laubhan was very vocal about her objections to having the tower built and requested copies of various government paperwork in relation to a special zoning variance that was granted for the tower.

         Prior to the erection of the tower, the property was sold to third parties (the Lollys) who then, in turn, sold it to the Laubhans. While the Harkless/Lolly contract specified that the buyers were aware of the lease agreement between Harkless and Verizon, noted an easement related to the lease, and provided that Harkless remained the owner of the easement and the lease, the Lolly/Laubhan contract specified only that the Laubhans were aware of the lease. The Lolly/Laubhan contract did not mention the easement, and it failed to mention anything regarding Harkless's retention of the ownership of the easement or lease. Neither the Harkless/Lolly deed nor the Lolly/Laubhan deed mentioned Harkless's continued right to receive rental income from the lease, though both deeds mentioned that they were free "of all encumbrances, except . . . reservations, restrictions, and easements of record, if any."

         After the Laubhans closed on their purchase of the property, the cell tower was erected, apparently over their objections. There is no dispute that the Laubhans have maintained the property, have an insurance policy on the property, and have performed all duties under the lease.

         The underlying suit arose after Harkless's attempt to sell his rights under the cell tower lease to another party fell through due to the Laubhans contesting Harkless's continued right to receive rental income under the lease. Harkless brought claims for a declaratory judgment and reformation of the deeds, and the Laubhans asserted a counterclaim for declaratory judgment. The Laubhans then sought summary judgment which was granted. We reversed on appeal, concluding that there were disputed issues of fact remaining. Harkless, 219 So.3d at 908.

         After remand, the trial court conducted a hearing and ultimately entered final judgment in favor of the Laubhans on their counterclaim for declaratory judgment. The trial court concluded that the Laubhans were bona fide purchasers without notice of the lease and that, therefore, Harkless had no rights under the lease, including the right to receive rental income. In reaching that conclusion, the trial court determined that the real estate agent who had negotiated both the Harkless/Lolly and Lolly/Laubhan transactions was not a reliable source of information and thus the fact that she verbally informed the Laubhans about Harkless's retention of the right to receive income under the lease did not impose a duty on the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.