         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED

HAGERTYSMITH, LLC,

              Appellant,

 v.                                                      Case No. 5D16-3655

TIMOTHY GERLANDER, CHRISTINE
GERLANDER, KASHIF BATTLA, MARK
PHANEUF AND ROSEANN PHANEUF,

           Appellees.
________________________________/

Opinion filed December 1, 2017

Appeal from the Circuit Court
for Orange County,
Janet C. Thorpe, Judge.

Barry Rigby, of Law Offices of Barry Rigby,
P.A., Orlando, for Appellant.

Erik E. Hawks, of Walsh Banks, PLLC,
Orlando, for Appellees, Timothy Gerlander
and Christine Gerlander.

No Appearance for Appellees, Kashif
Battla, Mark Phaneuf and Roseann
Phaneuf.

                            ON MOTION FOR REHEARING

LAMBERT, J.

       Appellees, Timothy Gerlander and Christine Gerlander, filed a motion for rehearing

of this court’s prior opinion, dated October 20, 2017. We grant Appellees’ motion,

withdraw our previous opinion, and substitute this opinion in its place.
       HagertySmith, LLC (“HagertySmith”) appeals from a final summary judgment

entered in favor of its former lakefront neighbors, Timothy Gerlander and Christine

Gerlander (“the Gerlanders”), on its claim that it sustained damages as a result of the

Gerlanders’ construction of a dock and walkway that obstructed HagertySmith’s view and

enjoyment of the abutting lake. The trial court ruled that HagertySmith had no legally

cognizable cause of action for damages because it failed to allege a statutory or

contractual basis for its claimed right to an unobstructed view of the lake. We reverse.

       HagertySmith and the Gerlanders owned adjacent lakefront real property located

on Lake Tibet Butler in Orange County, Florida. The Gerlanders built a dock and walkway

that extended into the lake in front of HagertySmith’s property. HagertySmith eventually

sold its property to a third party, but it asserts that the property’s sale price was

significantly reduced due to the Gerlanders’ dock and walkway diminishing the fair market

value of HagertySmith’s property.       HagertySmith sued the Gerlanders for money

damages for the difference between the sale price of its property and the fair market value

of the property without the obstructed view.

       Contrary to the trial court’s analysis, owners of real property abutting a lake have

several special common law littoral rights,1 including the right to an unobstructed view of

the lake. See, e.g., Walton Cty. v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102,

1111 (Fla. 2008). Evidence in this record arguably supports HagertySmith’s claim that the



       1 HagertySmith’s counsel referred to these rights as “riparian” rights, which is the
more commonly used phrase. “Technically, ‘[t]he term riparian owner applies to
waterfront owners along a river or stream, and the term littoral owner applies to waterfront
owners abutting an ocean, sea, or lake.’” 5F, LLC v. Dresing, 142 So. 3d 936, 939 n.3
(Fla. 2d DCA 2014) (quoting Walton Cty. v. Stop the Beach Renourishment, Inc., 998 So.
2d 1102, 1105 n.3 (Fla. 2008)). Here, because HagertySmith and the Gerlanders are
waterfront owners abutting a lake, the rights being affected are littoral.

                                               2
Gerlanders’ dock and walkway encroached on that portion of the lake abutting

HagertySmith’s property; that is, upon HagertySmith’s littoral rights. Thus, the trial court

erred in concluding that HagertySmith had no cognizable cause of action.

       However, our review of the record shows that HagertySmith’s present cause of

action is insufficiently pled. Under these circumstances, where the summary judgment is

based on the mistaken assumption that the party has no cognizable cause of action, but

the cause of action as pled is presently legally insufficient, the appropriate remedy is to

reverse with directions to enter a dismissal without prejudice with leave to amend. See

Brumer v. HCA Health Servs. of Fla., Inc., 662 So. 2d 1385, 1386 (Fla. 4th DCA 1995)

(“Where a summary judgment is in essence a substitute for a motion to dismiss for failure

to state a cause of action, leave to amend should be granted unless it is clear that no

viable cause of action can be stated.”). Because HagertySmith may be able to plead a

viable cause of action for private nuisance, see Game & Fresh Water Fish Comm’n v.

Lake Islands, Ltd., 407 So. 2d 189, 193 (Fla. 1981) (recognizing a cause of action for

private nuisance for an obstruction or interference with a riparian owner’s rights), we

reverse the final summary judgment in favor of the Gerlanders with directions for the trial

court to dismiss HagertySmith’s present cause of action against the Gerlanders without

prejudice and provide HagertySmith leave to amend its complaint.2

       REVERSED and REMANDED, with directions.

COHEN, C.J., and SAWAYA, J., concur.




       2Whether HagertySmith is able to eventually prove its claim for damages or if the
Gerlanders have any defenses to the claim is not before us, and we express no position
on the same.

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