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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
2007-CA-8117 NC
RICHARD 'R. FEY and
SCOTT FEY CASE NO.::
Plaintiffs,
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MARY ANN TURCOTTE, oe m m
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Defendant, OF. © SS
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DEFENDANT'S MOTION TO COMPEL INSPECTION OF PLAINTIFES™ =
PROPERTY AND MINOR SOIL DIGGING THEREUPON ~~
COMES NOW, Defendant, MARY ANN TURCOTTE, through undersigned
counsel, and moves this Honorable Court, pursuant to Florida Rule of Civil Procedure
1.280, to compel Plaintiffs to permit the entry upon and inspection of Plaintiffs’ land,
which is the subject of this lawsuit, and would allege as follows:
Plaintiffs initiated this cause of action against Defendant on July 13, 2007.
1.
Plaintiffs allege that Defendant cut down and removed a number of trees
2.
from Plaintiffs’ property without Plaintiffs’ permission or consent. See Exhibit A
(Plaintiffs’ Motion for Leave to Amend the Complaint and attached Amended Comolaint,
Paragraph No. 8 of Amended Complaint).
3. Plaintiffs are seeking damages based upon the monetary value of each
tree allegedly cut down and removed. See Exhibit A, Paragraph No. 5.
Defendant has retained an expert land economist to assess the value of
4.
the subject trees and determine the number of trees actually removed from Plaintiffs’
(ition
property.
| COLE, SCOTT & KISSANE, P.A.
BRIDGEPORT CENTER - SUITE 750 - 5201 WEST KENNEDY BOULEVARD - TAMPA, FLORIDA 33609 - (813) 289-9300 - (813) 286-2900 FAXCase No. 2007-CA-8117-NC
5. On January 22, 2008, Defendant submitted correspondence to Plaintiffs
notifying Plaintiffs of Defendant's desire to inspect the premises and requesting
available dates for same. See Exhibit B (Defendant's January 22, 2008
correspondence to Plaintiffs’ counsel).
6. During a February 1, 2008 telephone conversation, Plaintiffs’ counsel
indicated their willingness to permit an inspection and requested Defendant to obtain
available dates from Defendant's expert and submit same to Plaintiffs. Defendant
obtained dates from Defendant’s expert and notified Plaintiff of same. See Exhibit C
(Defendant's February 6, 2008 correspondence to Plaintiffs’ counsel). Additionally,
Defendant notified Plaintiffs of the need for Defendant’s expert to conduct minor soil
digging on Plaintiffs’ land as part of the inspection. (See Exhibit C)
7. In an email communication, dated February 6, 2008, Plaintiffs refused to
permit Defendant’s expert to conduct any digging on the subject property. See Exhibit
D (Email correspondence, dated February 6, 2008 from Plaintiffs’ counsel to
Defendant’s counsel). On the same date, Defendant’s requested alternative dates for
availability to inspect the land and Plaintiffs’ good faith reasons for not allowing minor
shovel digging on the property. (See Exhibit D)
8. Instead of offering any good faith reasons for not permitting minor shovel
digging on the premises, Plaintiffs’ counsel sent an email communication on February 8,
2008 inviting Defendant to “[g]o ahead with filing a motion to compel.” See Exhibit E
(Email correspondence, dated February 6, 2008 from Plaintiffs’ counsel to Defendant’s
counsel).
_2-
- COLE, SCOTT & KISSANE, P.A.
BRIDGEPORT CENTER - SUITE 750 - 5201 WEST KENNEDY BOULEVARD - TAMPA, FLORIDA 33609 - (813) 289-9300 - (813) 286-2900 FAXCase No. 2007-CA-8117-NC
9. Defendant's expert land economist needs to enter upon Plaintiffs’ land and
conduct minor shovel digging on the property to, among other reasons: (1) Determine
the number of trees actually removed Plaintiffs’ property; (2) Assess, if possible, when a
tree was removed from those locations; (3) Inspect the root structure of any trees
allegedly cut down and removed for the purpose of determining the health and
estimated size of the tree, and; (4) Inspect and examine any remaining stumps of trees
to determine age, size and health of the tree at the time the tree was allegedly cut down
and removed. These steps are all necessary to calculate the monetary value of each
tree allegedly removed. Plaintiffs’ expert, Norm Easey, has already had an opportunity
to physically inspect the land on more than one occasion.
MEMORANDUM OF LAW
Under the Florida Rules of Civil Procedure, “[pJarties may obtain discovery
regarding any matter, not privileged, that is relevant to the subject matter of the pending
action...” Fla. R. Civ. P. 1.280(b)(1). Any party may request any other party to permit
entry upon designated land or other property in the possession or contro! of the party
upon whom the request is served for the purpose of inspection and measuring,
surveying, photographing, testing, or sampling the property or any designated object or
operation on it within the scope of rule 1.280(b). Menke v. Broward County School
Board, 916 So.2d 8, 11 (Fla. 4th DCA 2005).
There is no question that the monetary value of the trees is relevant to the
subject matter of this action. It is the very heart of the damages Plaintiffs are seeking in
this matter. The requested minor digging and examination is absolutely necessary for
Defendant to prepare a full and complete defense to Plaintiffs’ allegations and asserted
-3-
' COLE, SCOTT & KISSANE, P.A.
BRIDGEPORT CENTER - SUITE 750 - 5201 WEST KENNEDY BOULEVARD - TAMPA, FLORIDA 33609 - (813) 289-9300 - (813) 286-2900 FAXCase No. 2007-CA-8117-NC
damages. Any digging by Defendant's expert will be minimal and done only by hand
shovel. It should also be noted that the subject land is used by Plaintiffs only to store
their work equipment; it has never served as their place of residence. Moreover, any
soil displaced will be returned to the condition it was prior to digging. Plaintiffs’ expert
has already inspected the subject land, conducted a thorough examination thereof, and
calculated Plaintiffs’ alleged damages. For the foregoing reasons, Defendant will be
unduly prejudiced if Defendant's expert is not permitted the same opportunity to inspect
and conduct minor shovel digging on Plaintiffs’ land.
WHEREFORE, Defendant respectfully requests this Honorable Court to enter an
order compelling Plaintiffs to allow entry upon, minor shovel digging upon, and
inspection of Plaintiffs’ property.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing was served via
facsimile and U.S. mail on this S_ day of February, 2008, to: Harry W. Haskins,
Esquire, 3400 S. Tamiami Trail, Suite 201 Sarasota, Florida 34239.
COLE, SCOTT & KISSANE, P.A.
Bridgeport Center, Suite 750
9201 W. Kennedy Blvd.
Tampa, FL 33609
- Telephone: (813) 289-9300
Facsimile: (813) 286-2900
Attorneys for Defendant
P. ERIAN, ESQ.
~ 0057983
SCOTT A. SHELTON, ESQ.
FBN: 0036486
_4-
COLE, SCOTT & KISSANE, P.A.
BRIDGEPORT CENTER - SUITE 750 - 5201 WEST KENNEDY BOULEVARD - TAMPA, FLORIDA 33609 - (813) 289-9300 - (813) 286-2900 FAXWYPC OL “S$ 040 JWIL INTYd WEC OL “S$ “090 JWIL 03A1993¥
{
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
RICHARD R. FEY and SCOTT
FEY,
Plaintiffs,
Vs, CASE NO: 2007 CA 008117 NC
MARY ANN TURCOTTE,
Defendant.
Ae eR ACC ROE RO Ek ACO fe a 7
MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
Plaintiffs, RICHARD R. FEY and SCOTT FEY, (hereinafter referred to collectively as
FEY), by and through their undersigned counsel, and move for leave to file an Amended
Complaint and as grounds therefore, would state:
I. This is an action for damages due to trespass committed by Defendants on Plaintiffs
property.
2. Plaintiffs’ initial complaint named MARY ANN TURCOTTE as a Defendant, but the
amended complaint seeks to add her husband, JOSEPH L.U. TURCOTTE, as he is also an owner
of the property adjacent to Plaintiffs and participated in the destruction of Plaintiffs’ trees.
3. Fla. R Civ. P. 1.250(c) provides that parties may be added by order of court on its own
initiative or on motion of any patty at any stage of the action and on such terms as are just.
¢. The initial complaint inadvertently stated that Defendant resided in Manatee County
when she and her husband actually reside in Sarasota County. The amended complaint seeks to
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correct the error.
5. Finally, the damages Plaintiffs seek are the loss of value of the trees that were
destroyed. The amended complaint seeks to make this correction in paragraph 9.
6. This case is a fairly new one, having been filed in July, 2007, and discovery is in the
initial stages. Therefore, no party will be prejudiced by the proposed amendment to the
complaint.
7. Florida has a longstanding policy of liberality in allowing amendments to pleadings.
Under Fla. R. Civ. P. 1.190(e), at any time in furtherance of justice, upon such terms as may be
just, the court may permit any pleading to be amended.
WHEREFORE, Plaintiffs respectfully request that this Court grant their Motion for Leave
to File Amended Complaint and deem the Amended Complaint attached hereto as Exhibit “A” as
filed herein.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by
United States Mail, postage prepaid, to Scott Shelton, Esq., COLE, SCOTT, KISSANE, PA,
. « | a“
Bridgeport Center, Suite 750, 5201 West Kennedy Boulevard, Tampa, Florida 33609, on this LZ
day of December, 2007.
3400 S$. Tamiami Trail
Suite 201
Sarasota, Florida 34239
(941) 366-1388
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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
RICHARD R. FEY and SCOTT
FEY,
Plaintiffs,
VS. CASE NO: 2007 CA 008117 NC
MARY ANN TURCOTTE,
Defendant.
PEA He RN HH oe Ee A MR es aa a
AMENDED COMPLAINT
Plaintiffs, RICHARD R. FEY and SCOTT FEY, (hereinafter referred to collectively as
FEY), sue Defendants, MARY ANN TURCOTTE and JOSEPH L.U. TURCOTTE, (hereinafter
referred to collectively as TURCOTTE), and allege:
1. This is an action for damages in excess of Fifteen Thousand ($15,000) Dollars,
exclusive of costs, interest and attorneys fees, and is otherwise within the jurisdiction of this
Court.
2. Plaintiffs, FEY, are residents of Sarasota County, Florida. Plaintiffs have a fee simple
ownership interest in property in Pinehurst Park, legally described as:
The East 200 feet of the West 400 feet of Black G, Replat of
Pinehurst Park, according to the plat thereof recorded in Plat
Book 3, Page 41 Public Records of Sarasota County, Florida
LESS Begin at the Northeast corner of the East 200 feet of the
West 400 feet of the aforesaid Block G for a Point of Beginning:
thence $00°22'22"E along the Easterly line of said Westerly 400
feet a distance of 108 feet; thence $89°45'57"'W a distance of 70
9 ‘¢ €L0L ‘ON MYT-LY-AINYOLLY 'SNIMSVH AUYWH = WYLZ201M/000°S ‘D4WYPC OL “S “090 SWIL INTYd WYEC-OL S ‘O40 JWIL 03A1303%
\
feet; thence S00°22'22"E a distance of 54.48 feet; thence
$89°14'11"W a distance of 77.17 feet; thence N51°28'38"W
a distance of 37.04 feet to a point lying 24 feet East of the
Westerly line of the Easterly 200 feet of the Westerly 400
feet of aforesaid Block G; thence N00°22'22"W a distance
of 140 feet to a point lying on the Southerly right-of-way
line of Pinehurst Street; thence N89°45'57"E a distance of
176 feet to the Point of Beginning.
3. Defendants, TURCOTTE, are residents of Sarasota County, Florida. Defendants have
a ice simple ownership interest in property in Pinehurst Park, immediately adjacent to Plaintiffs’
property, legally described as:
Begin at the northeast corner of the east 200 feet of the west
400 feet of the aforesaid Blck G for a Point-of-Beginning;
Thence South 00°22'22" East along the easterly line of said
westerly 400 feet a distance of 108.00 feet; Thence South
89°14'11" West a distance of 77.17 feet; Thence North 51°28'38"
West a distance of 37.04 feet to a point lying 24.00 feet east of
the westerly line of the easterly 200 feet of the westerly 400 feet
of aforesaid Block G; Thence North 00°22'22" West a distance
of 140.00 feet to a point lying on the southerly right-of-way line
of Pinehurst Street; Thence North 89°45'57" East a distance of
176.00 feet to the Pojnt-of-Beginning. containing 0.562 acres.
4. Venue is proper in Sarasota County, as Defendants, TURCOTTE, reside in Sarasota
County, and the cause of action arose in Sarasota County.
5. Atall times material hereto, Plaintiffs had full ownership or possessory interest in the
property described in Paragraph 2.
6. TURCOTTE did not have any right or authority to use or mjure the land of the
Plaintzffs.
7. Despite the Defendants’ lack of authority to use Plaintiffs’ property, Defendants,
instructed an entity known as Total Tree Trinaming, Inc., which is an administratively dissolved
i ‘d €202 ‘ON AV I-LY-AINYOLLV “SNIXSVH AMYYH WY/ 2-01 7000 °S 0WVVC- Ut 4 930 IWIL IN]&d Wed Ol % O50 JWIL USATI048
inactive Florida corporation, to severely trim back and cut down pine trees located on Plaintiffs’
property.
8. Defendants, TURCOTTE, knew that the trees she ordered to be cut down were on
Plaintiffs’ property. Nonetheless, TURCOTTE intentionally and willfully instructed Total Tree
Trimming, Inc. to cut down trees on Plaintiffs’ property without any right or authority to do so.
9. As a direct and proximate result of the conduct of the Defendants, Plaintiffs have been
damaged, as they have lost the value of the trees due to the trespass.
WHEREFORE, Plaintiffs demand judgment against Defendants for damages, costs and
such further relief as the Court deems just.
DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury trial of all issues triable as of right by a jury.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by
United States Mail, postage prepaid, to Scott Shelton, Esq., COLE, SCOTT & KISSANE, PA,
Bridgeport Center, Suite 750, 5201 West Kennedy Boulevard, Tampa, Florida 33609, on this WL
day of December, 2007,
LL
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assar Wo: 229652
400 S. Tamiami Trail
Suite 20]
Sarasota, Florida 34239
(941) 366-1388
ATTORNEY FOR PLAINTIFFS
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Wc. SCOTT ~~ SERSEEPLS aor ct Po
| A KISSANE, PA. TAMPA, FLORIDA 33609
TELEPHONE (813) 289-9300
FACSIMILE (813) 286-2900
Attorneys At Law WEBSITE www.csklegal.com
MIAMI - WEST PALM BEACH - TAMPA - KEY WEST - FT. LAUDERDALE - NAPLES - JACKSONVILLE DIRECT LINE (813) 864-9373
EMAIL aram.megerian@csklegal.com
i
January 22, 2008
VIA FACSIMILE ONLY - 941-953-4284
Harry W. Haskins, Esq.
3400 S. Tamiami Trial, Suite 201
Sarasota, FL 34239
RE: Claimant : Richard R. & Scott Fey
insured : Mary Ann Turcotte
Claim No. : 221758
~ DOL : 3/27/2007
Our File No. 3228-0313-00
Dear Mr. Haskins:
We would like to schedule a site inspection for the subject premises where the
alleged incident occurred. Upon receipt of this correspondence, please contact our
office to let us know when you are available. Preferably, we would like this to occur
within the next two weeks.
Sincerely
Ni
Scott A. Shelton
Eric T. Olson
~ APM/ETO/tsf
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eae C K@) E S¢ “CY LT ~~" BRIDGEPORT CENTER, SUITE 750
ThrTh | > 5201 WEST KENNEDY BOULEVARD
‘ ‘ . KISSANE P TAMPA, FLORIDA 33609
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TELEPHONE (813) 289-9300
FACSIMILE (813) 286-2900
Attorneys At Law WEBSITE www.csklegal.com
MIAMI - WEST PALM BEACH - TAMPA - KEY WEST - FT. LAUDERDALE - NAPLES - JACKSONVILLE DIRECT LINE (813) 864-9373
EMAIL scott.shelton@csklegal.com
February 6, 2008
VIA FACSIMILE ONLY - 941-953-4284
Harry W. Haskins, Esq.
3400 S. Tamiami Trial, Suite 201
Sarasota, FL 34239
RE: Claimant : Richard R. & Scott Fey
Insured - : Mary Ann Turcotte
Claim No. 221758
DOL 3/27/2007
Our File No. : 3228-0313-00
Dear Mr. Haskins:
In furtherance of our February 1, 2008 telephone conversation, our expert
landscape economist is available this Thursday or Friday, February 7” or 8"
respectively, to conduct an on-site inspection of the Feys’ property. Please advise if
these dates are acceptable.
Additionally, it will be necessary for our expert to conduct minor shovel digging
on the property in order to examine roots and/or stumps in the areas of removal. He
will, of course, replace all disturbed soil. His excavation will be as minimal as possible.
We trust that you will not have any objection, however, if you do, please inform us
immediately.
Thank you in advance for your cooperation in this matter, and we look forward to
hearing from you soon.
Sincerely,
UY
ScottA. Shelton
Eric T. Olson
APM/ETO
L:\3228-0313-00\L\Haskins re site inspection 2.docEric T. Olson
From: Scott Shelton
Sent: Wednesday, February 06, 2008 4:52 PM
To: haskinslaw@aol.com; Eric T. Olson
Subject: Re: Fey v Turcotte
Mr. Haskins:
Pls provide us alternative dates for your availability. Otherwise, we will proceed with
scheduling same per our availability.
Also, pls provide us your good faith reasons for not allowing minor shovel digging on the
property which our expert will require. Otherwise, we will proceed with filing our motion
to compel.
----- Original Message -----
From: haskinslaw@aol.com
To: Scott Shelton
Sent: Wed Feb 06 13:48:08 2008
Subject: Fey v Turcotte
Dear Mr. Shelton & Olson,
Too short of notice for inspection. No as to any digging.
Harry W. Haskins, Esquire
SunTrust Building
3400 S. Tamiami Trail, Suite 201
Sarasota, FL 34239
Telephone: (941) 366-1388
Facsimile: (941) 953-4284
More new features than ever. Check out the new AOL Mail
|!_ @ Page 1 of 1
Eric T. Olson
arta - eer enannnnnnamacmnalr irate ~ an anne hnnire bite + . paracentesis anit a yori LAP AAAATAEE SOLAR OT pete
From: haskinslaw@aol.com
Sent: Friday, February 08, 2008 3:50 PM
To: Scott Shelton
Cc: Eric T. Olson
Subject: Fey v. Turcotte
Scott & Eric, my clients are out of town until next Wednesday. Go ahead with filing a motion to
compel.
Harry W. Haskins,Esquire
SunTrust Building --
3400 S. Tamiami Trail, Suite 201
Sarasota, FL 34239
Telephone: (941) 366-1388
Facsimile: (941) 953-4284
eoscsenscanaansascoenan orerece senstaitente — — mtomen tant ata rere eerie torneo AeA CAAT oat TTT
More new features than ever. Check out the new AOL Mail!
2/11/2008
Preview
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA 2007-CA-8117 NC RICHARD 'R. FEY and SCOTT FEY CASE NO.:: Plaintiffs, vs. g- 3S wy MARY ANN TURCOTTE, oe m m jy Ti Cx Defendant, OF. © SS / SE5 WD w — tm ET <3 > w> cD —J ow DEFENDANT'S MOTION TO COMPEL INSPECTION OF PLAINTIFES™ = PROPERTY AND MINOR SOIL DIGGING THEREUPON ~~ COMES NOW, Defendant, MARY ANN TURCOTTE, through undersigned counsel, and moves this Honorable Court, pursuant to Florida Rule of Civil Procedure 1.280, to compel Plaintiffs to permit the entry upon and inspection of Plaintiffs’ land, which is the subject of this lawsuit, and would allege as follows: Plaintiffs initiated this cause of action against Defendant on July 13, 2007. 1. Plaintiffs allege that Defendant cut down and removed a number of trees 2. from Plaintiffs’ property without Plaintiffs’ permission or consent. See Exhibit A (Plaintiffs’ Motion for Leave to Amend the Complaint and attached Amended Comolaint, Paragraph No. 8 of Amended Complaint). 3. Plaintiffs are seeking damages based upon the monetary value of each tree allegedly cut down and removed. See Exhibit A, Paragraph No. 5. Defendant has retained an expert land economist to assess the value of 4. the subject trees and determine the number of trees actually removed from Plaintiffs’ (ition property. | COLE, SCOTT & KISSANE, P.A. BRIDGEPORT CENTER - SUITE 750 - 5201 WEST KENNEDY BOULEVARD - TAMPA, FLORIDA 33609 - (813) 289-9300 - (813) 286-2900 FAXCase No. 2007-CA-8117-NC 5. On January 22, 2008, Defendant submitted correspondence to Plaintiffs notifying Plaintiffs of Defendant's desire to inspect the premises and requesting available dates for same. See Exhibit B (Defendant's January 22, 2008 correspondence to Plaintiffs’ counsel). 6. During a February 1, 2008 telephone conversation, Plaintiffs’ counsel indicated their willingness to permit an inspection and requested Defendant to obtain available dates from Defendant's expert and submit same to Plaintiffs. Defendant obtained dates from Defendant’s expert and notified Plaintiff of same. See Exhibit C (Defendant's February 6, 2008 correspondence to Plaintiffs’ counsel). Additionally, Defendant notified Plaintiffs of the need for Defendant’s expert to conduct minor soil digging on Plaintiffs’ land as part of the inspection. (See Exhibit C) 7. In an email communication, dated February 6, 2008, Plaintiffs refused to permit Defendant’s expert to conduct any digging on the subject property. See Exhibit D (Email correspondence, dated February 6, 2008 from Plaintiffs’ counsel to Defendant’s counsel). On the same date, Defendant’s requested alternative dates for availability to inspect the land and Plaintiffs’ good faith reasons for not allowing minor shovel digging on the property. (See Exhibit D) 8. Instead of offering any good faith reasons for not permitting minor shovel digging on the premises, Plaintiffs’ counsel sent an email communication on February 8, 2008 inviting Defendant to “[g]o ahead with filing a motion to compel.” See Exhibit E (Email correspondence, dated February 6, 2008 from Plaintiffs’ counsel to Defendant’s counsel). _2- - COLE, SCOTT & KISSANE, P.A. BRIDGEPORT CENTER - SUITE 750 - 5201 WEST KENNEDY BOULEVARD - TAMPA, FLORIDA 33609 - (813) 289-9300 - (813) 286-2900 FAXCase No. 2007-CA-8117-NC 9. Defendant's expert land economist needs to enter upon Plaintiffs’ land and conduct minor shovel digging on the property to, among other reasons: (1) Determine the number of trees actually removed Plaintiffs’ property; (2) Assess, if possible, when a tree was removed from those locations; (3) Inspect the root structure of any trees allegedly cut down and removed for the purpose of determining the health and estimated size of the tree, and; (4) Inspect and examine any remaining stumps of trees to determine age, size and health of the tree at the time the tree was allegedly cut down and removed. These steps are all necessary to calculate the monetary value of each tree allegedly removed. Plaintiffs’ expert, Norm Easey, has already had an opportunity to physically inspect the land on more than one occasion. MEMORANDUM OF LAW Under the Florida Rules of Civil Procedure, “[pJarties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action...” Fla. R. Civ. P. 1.280(b)(1). Any party may request any other party to permit entry upon designated land or other property in the possession or contro! of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation on it within the scope of rule 1.280(b). Menke v. Broward County School Board, 916 So.2d 8, 11 (Fla. 4th DCA 2005). There is no question that the monetary value of the trees is relevant to the subject matter of this action. It is the very heart of the damages Plaintiffs are seeking in this matter. The requested minor digging and examination is absolutely necessary for Defendant to prepare a full and complete defense to Plaintiffs’ allegations and asserted -3- ' COLE, SCOTT & KISSANE, P.A. BRIDGEPORT CENTER - SUITE 750 - 5201 WEST KENNEDY BOULEVARD - TAMPA, FLORIDA 33609 - (813) 289-9300 - (813) 286-2900 FAXCase No. 2007-CA-8117-NC damages. Any digging by Defendant's expert will be minimal and done only by hand shovel. It should also be noted that the subject land is used by Plaintiffs only to store their work equipment; it has never served as their place of residence. Moreover, any soil displaced will be returned to the condition it was prior to digging. Plaintiffs’ expert has already inspected the subject land, conducted a thorough examination thereof, and calculated Plaintiffs’ alleged damages. For the foregoing reasons, Defendant will be unduly prejudiced if Defendant's expert is not permitted the same opportunity to inspect and conduct minor shovel digging on Plaintiffs’ land. WHEREFORE, Defendant respectfully requests this Honorable Court to enter an order compelling Plaintiffs to allow entry upon, minor shovel digging upon, and inspection of Plaintiffs’ property. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was served via facsimile and U.S. mail on this S_ day of February, 2008, to: Harry W. Haskins, Esquire, 3400 S. Tamiami Trail, Suite 201 Sarasota, Florida 34239. COLE, SCOTT & KISSANE, P.A. Bridgeport Center, Suite 750 9201 W. Kennedy Blvd. Tampa, FL 33609 - Telephone: (813) 289-9300 Facsimile: (813) 286-2900 Attorneys for Defendant P. ERIAN, ESQ. ~ 0057983 SCOTT A. SHELTON, ESQ. FBN: 0036486 _4- COLE, SCOTT & KISSANE, P.A. BRIDGEPORT CENTER - SUITE 750 - 5201 WEST KENNEDY BOULEVARD - TAMPA, FLORIDA 33609 - (813) 289-9300 - (813) 286-2900 FAXWYPC OL “S$ 040 JWIL INTYd WEC OL “S$ “090 JWIL 03A1993¥ { IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA RICHARD R. FEY and SCOTT FEY, Plaintiffs, Vs, CASE NO: 2007 CA 008117 NC MARY ANN TURCOTTE, Defendant. Ae eR ACC ROE RO Ek ACO fe a 7 MOTION FOR LEAVE TO FILE AMENDED COMPLAINT Plaintiffs, RICHARD R. FEY and SCOTT FEY, (hereinafter referred to collectively as FEY), by and through their undersigned counsel, and move for leave to file an Amended Complaint and as grounds therefore, would state: I. This is an action for damages due to trespass committed by Defendants on Plaintiffs property. 2. Plaintiffs’ initial complaint named MARY ANN TURCOTTE as a Defendant, but the amended complaint seeks to add her husband, JOSEPH L.U. TURCOTTE, as he is also an owner of the property adjacent to Plaintiffs and participated in the destruction of Plaintiffs’ trees. 3. Fla. R Civ. P. 1.250(c) provides that parties may be added by order of court on its own initiative or on motion of any patty at any stage of the action and on such terms as are just. ¢. The initial complaint inadvertently stated that Defendant resided in Manatee County when she and her husband actually reside in Sarasota County. The amended complaint seeks to 3228- 03(3 (@ bod €202 ‘ON MV J-LV-AINYOLLY “SNIYSVH AQYVH NVC: O'R aW220) °G “090 WEL LINING WYEO1 “S$ ‘990 SWIL 03A13939 correct the error. 5. Finally, the damages Plaintiffs seek are the loss of value of the trees that were destroyed. The amended complaint seeks to make this correction in paragraph 9. 6. This case is a fairly new one, having been filed in July, 2007, and discovery is in the initial stages. Therefore, no party will be prejudiced by the proposed amendment to the complaint. 7. Florida has a longstanding policy of liberality in allowing amendments to pleadings. Under Fla. R. Civ. P. 1.190(e), at any time in furtherance of justice, upon such terms as may be just, the court may permit any pleading to be amended. WHEREFORE, Plaintiffs respectfully request that this Court grant their Motion for Leave to File Amended Complaint and deem the Amended Complaint attached hereto as Exhibit “A” as filed herein. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by United States Mail, postage prepaid, to Scott Shelton, Esq., COLE, SCOTT, KISSANE, PA, . « | a“ Bridgeport Center, Suite 750, 5201 West Kennedy Boulevard, Tampa, Florida 33609, on this LZ day of December, 2007. 3400 S$. Tamiami Trail Suite 201 Sarasota, Florida 34239 (941) 366-1388 G ‘d €L£02 ‘ON MVI-LY-AINYOLIV SNIYSVH AMUVH WHOL 2000S “930 os So van neta a Or actin Sa ehWVOC:01 “GS ‘09@ 4IWIL INTYd WYEZ01 °S ‘990 WIL O9A1993Y IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA RICHARD R. FEY and SCOTT FEY, Plaintiffs, VS. CASE NO: 2007 CA 008117 NC MARY ANN TURCOTTE, Defendant. PEA He RN HH oe Ee A MR es aa a AMENDED COMPLAINT Plaintiffs, RICHARD R. FEY and SCOTT FEY, (hereinafter referred to collectively as FEY), sue Defendants, MARY ANN TURCOTTE and JOSEPH L.U. TURCOTTE, (hereinafter referred to collectively as TURCOTTE), and allege: 1. This is an action for damages in excess of Fifteen Thousand ($15,000) Dollars, exclusive of costs, interest and attorneys fees, and is otherwise within the jurisdiction of this Court. 2. Plaintiffs, FEY, are residents of Sarasota County, Florida. Plaintiffs have a fee simple ownership interest in property in Pinehurst Park, legally described as: The East 200 feet of the West 400 feet of Black G, Replat of Pinehurst Park, according to the plat thereof recorded in Plat Book 3, Page 41 Public Records of Sarasota County, Florida LESS Begin at the Northeast corner of the East 200 feet of the West 400 feet of the aforesaid Block G for a Point of Beginning: thence $00°22'22"E along the Easterly line of said Westerly 400 feet a distance of 108 feet; thence $89°45'57"'W a distance of 70 9 ‘¢ €L0L ‘ON MYT-LY-AINYOLLY 'SNIMSVH AUYWH = WYLZ201M/000°S ‘D4WYPC OL “S “090 SWIL INTYd WYEC-OL S ‘O40 JWIL 03A1303% \ feet; thence S00°22'22"E a distance of 54.48 feet; thence $89°14'11"W a distance of 77.17 feet; thence N51°28'38"W a distance of 37.04 feet to a point lying 24 feet East of the Westerly line of the Easterly 200 feet of the Westerly 400 feet of aforesaid Block G; thence N00°22'22"W a distance of 140 feet to a point lying on the Southerly right-of-way line of Pinehurst Street; thence N89°45'57"E a distance of 176 feet to the Point of Beginning. 3. Defendants, TURCOTTE, are residents of Sarasota County, Florida. Defendants have a ice simple ownership interest in property in Pinehurst Park, immediately adjacent to Plaintiffs’ property, legally described as: Begin at the northeast corner of the east 200 feet of the west 400 feet of the aforesaid Blck G for a Point-of-Beginning; Thence South 00°22'22" East along the easterly line of said westerly 400 feet a distance of 108.00 feet; Thence South 89°14'11" West a distance of 77.17 feet; Thence North 51°28'38" West a distance of 37.04 feet to a point lying 24.00 feet east of the westerly line of the easterly 200 feet of the westerly 400 feet of aforesaid Block G; Thence North 00°22'22" West a distance of 140.00 feet to a point lying on the southerly right-of-way line of Pinehurst Street; Thence North 89°45'57" East a distance of 176.00 feet to the Pojnt-of-Beginning. containing 0.562 acres. 4. Venue is proper in Sarasota County, as Defendants, TURCOTTE, reside in Sarasota County, and the cause of action arose in Sarasota County. 5. Atall times material hereto, Plaintiffs had full ownership or possessory interest in the property described in Paragraph 2. 6. TURCOTTE did not have any right or authority to use or mjure the land of the Plaintzffs. 7. Despite the Defendants’ lack of authority to use Plaintiffs’ property, Defendants, instructed an entity known as Total Tree Trinaming, Inc., which is an administratively dissolved i ‘d €202 ‘ON AV I-LY-AINYOLLV “SNIXSVH AMYYH WY/ 2-01 7000 °S 0WVVC- Ut 4 930 IWIL IN]&d Wed Ol % O50 JWIL USATI048 inactive Florida corporation, to severely trim back and cut down pine trees located on Plaintiffs’ property. 8. Defendants, TURCOTTE, knew that the trees she ordered to be cut down were on Plaintiffs’ property. Nonetheless, TURCOTTE intentionally and willfully instructed Total Tree Trimming, Inc. to cut down trees on Plaintiffs’ property without any right or authority to do so. 9. As a direct and proximate result of the conduct of the Defendants, Plaintiffs have been damaged, as they have lost the value of the trees due to the trespass. WHEREFORE, Plaintiffs demand judgment against Defendants for damages, costs and such further relief as the Court deems just. DEMAND FOR JURY TRIAL Plaintiffs hereby demand a jury trial of all issues triable as of right by a jury. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by United States Mail, postage prepaid, to Scott Shelton, Esq., COLE, SCOTT & KISSANE, PA, Bridgeport Center, Suite 750, 5201 West Kennedy Boulevard, Tampa, Florida 33609, on this WL day of December, 2007, LL " FHS kins assar Wo: 229652 400 S. Tamiami Trail Suite 20] Sarasota, Florida 34239 (941) 366-1388 ATTORNEY FOR PLAINTIFFS 8 ‘d €20L ‘ON MVI-LV-AINYOLLY SNINSVH AYYVH WYEC*0L L000 S ‘030(} () Wc. SCOTT ~~ SERSEEPLS aor ct Po | A KISSANE, PA. TAMPA, FLORIDA 33609 TELEPHONE (813) 289-9300 FACSIMILE (813) 286-2900 Attorneys At Law WEBSITE www.csklegal.com MIAMI - WEST PALM BEACH - TAMPA - KEY WEST - FT. LAUDERDALE - NAPLES - JACKSONVILLE DIRECT LINE (813) 864-9373 EMAIL aram.megerian@csklegal.com i January 22, 2008 VIA FACSIMILE ONLY - 941-953-4284 Harry W. Haskins, Esq. 3400 S. Tamiami Trial, Suite 201 Sarasota, FL 34239 RE: Claimant : Richard R. & Scott Fey insured : Mary Ann Turcotte Claim No. : 221758 ~ DOL : 3/27/2007 Our File No. 3228-0313-00 Dear Mr. Haskins: We would like to schedule a site inspection for the subject premises where the alleged incident occurred. Upon receipt of this correspondence, please contact our office to let us know when you are available. Preferably, we would like this to occur within the next two weeks. Sincerely Ni Scott A. Shelton Eric T. Olson ~ APM/ETO/tsf L:\3228-0313-00\L\Haskins re depo of Seisy.doc —, cy a, . Y eae C K@) E S¢ “CY LT ~~" BRIDGEPORT CENTER, SUITE 750 ThrTh | > 5201 WEST KENNEDY BOULEVARD ‘ ‘ . KISSANE P TAMPA, FLORIDA 33609 . h } 3 od we TELEPHONE (813) 289-9300 FACSIMILE (813) 286-2900 Attorneys At Law WEBSITE www.csklegal.com MIAMI - WEST PALM BEACH - TAMPA - KEY WEST - FT. LAUDERDALE - NAPLES - JACKSONVILLE DIRECT LINE (813) 864-9373 EMAIL scott.shelton@csklegal.com February 6, 2008 VIA FACSIMILE ONLY - 941-953-4284 Harry W. Haskins, Esq. 3400 S. Tamiami Trial, Suite 201 Sarasota, FL 34239 RE: Claimant : Richard R. & Scott Fey Insured - : Mary Ann Turcotte Claim No. 221758 DOL 3/27/2007 Our File No. : 3228-0313-00 Dear Mr. Haskins: In furtherance of our February 1, 2008 telephone conversation, our expert landscape economist is available this Thursday or Friday, February 7” or 8" respectively, to conduct an on-site inspection of the Feys’ property. Please advise if these dates are acceptable. Additionally, it will be necessary for our expert to conduct minor shovel digging on the property in order to examine roots and/or stumps in the areas of removal. He will, of course, replace all disturbed soil. His excavation will be as minimal as possible. We trust that you will not have any objection, however, if you do, please inform us immediately. Thank you in advance for your cooperation in this matter, and we look forward to hearing from you soon. Sincerely, UY ScottA. Shelton Eric T. Olson APM/ETO L:\3228-0313-00\L\Haskins re site inspection 2.docEric T. Olson From: Scott Shelton Sent: Wednesday, February 06, 2008 4:52 PM To: haskinslaw@aol.com; Eric T. Olson Subject: Re: Fey v Turcotte Mr. Haskins: Pls provide us alternative dates for your availability. Otherwise, we will proceed with scheduling same per our availability. Also, pls provide us your good faith reasons for not allowing minor shovel digging on the property which our expert will require. Otherwise, we will proceed with filing our motion to compel. ----- Original Message ----- From: haskinslaw@aol.com To: Scott Shelton Sent: Wed Feb 06 13:48:08 2008 Subject: Fey v Turcotte Dear Mr. Shelton & Olson, Too short of notice for inspection. No as to any digging. Harry W. Haskins, Esquire SunTrust Building 3400 S. Tamiami Trail, Suite 201 Sarasota, FL 34239 Telephone: (941) 366-1388 Facsimile: (941) 953-4284 More new features than ever. Check out the new AOL Mail |!_ @ Page 1 of 1 Eric T. Olson arta - eer enannnnnnamacmnalr irate ~ an anne hnnire bite + . paracentesis anit a yori LAP AAAATAEE SOLAR OT pete From: haskinslaw@aol.com Sent: Friday, February 08, 2008 3:50 PM To: Scott Shelton Cc: Eric T. Olson Subject: Fey v. Turcotte Scott & Eric, my clients are out of town until next Wednesday. Go ahead with filing a motion to compel. Harry W. Haskins,Esquire SunTrust Building -- 3400 S. Tamiami Trail, Suite 201 Sarasota, FL 34239 Telephone: (941) 366-1388 Facsimile: (941) 953-4284 eoscsenscanaansascoenan orerece senstaitente — — mtomen tant ata rere eerie torneo AeA CAAT oat TTT More new features than ever. Check out the new AOL Mail! 2/11/2008