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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.
MOTION FOR LEAVE TO AMEND COMPLAINT TO ASSERT A
CLAIM FOR PUNITIVE DAMAGES
Plaintiffs, RICHARD R. FEY and SCOTT FEY, (hereinafter referred to collectively as
FEY), by and through their undersigned counsel, and pursuant to Fla. Stat. Sec. 768.72, move for
leave to amend their Amended Complaint to assert a claim for punitive damages, and as grounds
therefore, would state:
1. This is an action for damages due to trespass committed by Defendants on Plaintiffs
property. The Amended Complaint alleges that the Defendants, MARY ANN TURCOTTE and
JOSEPH L.H. TURCOTTE, owners of residential property adjacent to Plaintiffs, destroyed trees
on Plaintiffs’ property.
2. Fla. Stat. Sec. 768.72 provides that in any civil action, before a claim for punitive
damages may be asserted, there must be a reasonable showing by evidence in the record or
proffered by the claimant which would provide a reasonable basis for recovery of such damages.
Filed for Record 01/30/2008 01:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008117 NC Dkt-1465058 Page 1 of 33. Since the filing of the Amended Complaint, discovery has ensued and depositions
have been taken. There is sufficient testimony in the depositions to provide this Court with
record evidence that a claim for punitive damages is appropriate in this case.
4. Specifically, Defendant, MARY ANN TURCOTTE was deposed and testified that
when she bought her home, there was a fence on the property line. (Deposition of Mary Ann
Turcotte, (T. Depo, p. 8). On the west side of her property, there is a strip of land identified as a
utility easement. (T. Depo, p. 11). She knew when she bought the house that RICHARD FEY
owned that strip of land. T. Depo, p. 11). Total Tree Trimming, Inc. removed trees on FEY’s
property at her direction. (T. Depo, p. 13). |
5. MARY ANN TURCOTTE further testified that when she asked the owners/employees
of Total Tree Trimming, Inc. to remove the pine trees, she did not tell them they were on
somebody else’s property. (T. Depo, p. 28).
6. The owners/employees of Total Tree Trimming, Inc., Bill Powers and Shawn Powers,
also provided deposition testimony. Bill Powers stated that MARY ANN TURCOTTE told him
that the property from which she wanted the trees removed was owned by her. (BP depo, p. 8,
9). They both testified that if they knew that the trees were on someone else’s property, they
would have gained the owner’s permission in writing before doing the work. (BP depo, p.19; SP
depo, p, 13-14, BP depo, ).
8. The above record evidence reveals that Defendant, MARY ANN TURCOTTE had
actual knowledge of the wrongfulness of her conduct, in intentionally and willfully directing the
removal trees from Plaintiffs’ property and lying to the tree trimming workers that the trees were
on property owned by her. She also knew that damage to Plaintiffs would result and, despite that
Filed for Record 01/30/2008 01:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008117 NC Dkt-1465058 Page 2 of 3knowledge, she intentionally pursued that course of conduct, resulting in damage to Plaintiffs.
Defendant’s conduct provides a reasonable basis for the recovery of punitive damages.
WHEREFORE, Plaintiffs respectfully request that this Court grant their Motion and enter
an Order giving them Leave to Amend their Amended Complaint to assert a claim for punitive
damages.
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 A. Shelton, Esq., Cole, Scott & Kissane, P.A.,
Bridgeport Center, Suite 750, 5201 West Kennedy Boulevard, Tampa, Florida 33609, on this
ra
VG day of January, 2008.
3400 S. Tamiami Trail
Suite 201
Sarasota, Florida 34239
(941) 366-1388
ATTORNEY FOR PLAINTIFFS
Filed for Record 01/30/2008 01:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008117 NC Dkt-1465058 Page 3 of 3
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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. MOTION FOR LEAVE TO AMEND COMPLAINT TO ASSERT A CLAIM FOR PUNITIVE DAMAGES Plaintiffs, RICHARD R. FEY and SCOTT FEY, (hereinafter referred to collectively as FEY), by and through their undersigned counsel, and pursuant to Fla. Stat. Sec. 768.72, move for leave to amend their Amended Complaint to assert a claim for punitive damages, and as grounds therefore, would state: 1. This is an action for damages due to trespass committed by Defendants on Plaintiffs property. The Amended Complaint alleges that the Defendants, MARY ANN TURCOTTE and JOSEPH L.H. TURCOTTE, owners of residential property adjacent to Plaintiffs, destroyed trees on Plaintiffs’ property. 2. Fla. Stat. Sec. 768.72 provides that in any civil action, before a claim for punitive damages may be asserted, there must be a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. Filed for Record 01/30/2008 01:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008117 NC Dkt-1465058 Page 1 of 33. Since the filing of the Amended Complaint, discovery has ensued and depositions have been taken. There is sufficient testimony in the depositions to provide this Court with record evidence that a claim for punitive damages is appropriate in this case. 4. Specifically, Defendant, MARY ANN TURCOTTE was deposed and testified that when she bought her home, there was a fence on the property line. (Deposition of Mary Ann Turcotte, (T. Depo, p. 8). On the west side of her property, there is a strip of land identified as a utility easement. (T. Depo, p. 11). She knew when she bought the house that RICHARD FEY owned that strip of land. T. Depo, p. 11). Total Tree Trimming, Inc. removed trees on FEY’s property at her direction. (T. Depo, p. 13). | 5. MARY ANN TURCOTTE further testified that when she asked the owners/employees of Total Tree Trimming, Inc. to remove the pine trees, she did not tell them they were on somebody else’s property. (T. Depo, p. 28). 6. The owners/employees of Total Tree Trimming, Inc., Bill Powers and Shawn Powers, also provided deposition testimony. Bill Powers stated that MARY ANN TURCOTTE told him that the property from which she wanted the trees removed was owned by her. (BP depo, p. 8, 9). They both testified that if they knew that the trees were on someone else’s property, they would have gained the owner’s permission in writing before doing the work. (BP depo, p.19; SP depo, p, 13-14, BP depo, ). 8. The above record evidence reveals that Defendant, MARY ANN TURCOTTE had actual knowledge of the wrongfulness of her conduct, in intentionally and willfully directing the removal trees from Plaintiffs’ property and lying to the tree trimming workers that the trees were on property owned by her. She also knew that damage to Plaintiffs would result and, despite that Filed for Record 01/30/2008 01:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008117 NC Dkt-1465058 Page 2 of 3knowledge, she intentionally pursued that course of conduct, resulting in damage to Plaintiffs. Defendant’s conduct provides a reasonable basis for the recovery of punitive damages. WHEREFORE, Plaintiffs respectfully request that this Court grant their Motion and enter an Order giving them Leave to Amend their Amended Complaint to assert a claim for punitive damages. 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 A. Shelton, Esq., Cole, Scott & Kissane, P.A., Bridgeport Center, Suite 750, 5201 West Kennedy Boulevard, Tampa, Florida 33609, on this ra VG day of January, 2008. 3400 S. Tamiami Trail Suite 201 Sarasota, Florida 34239 (941) 366-1388 ATTORNEY FOR PLAINTIFFS Filed for Record 01/30/2008 01:35 PM - Karen E. Rushing, Clerk of the Circuit Court - Sarasota County, FL - 2007 CA 008117 NC Dkt-1465058 Page 3 of 3