         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


MARK ALAN HAYNES,

             Appellant,

v.                                                   Case No. 5D15-2865

MICHAEL ARMAN, ELA M. LUGO,
ET AL.,

             Appellees.

________________________________/

Opinion filed May 13, 2016

Appeal from the Circuit Court
for Volusia County,
Raul A. Zambrano, Judge.

Mark Alan Haynes, Port Orange, pro se.

Ela M. Lugo, of Lugo Law, Inc.
Edgewater, pro se and for Appellee,
Michael Arman.

No Appearance for Appellees, Ronald
Lester and Maxine Lester.


PER CURIAM.

      Mark Alan Haynes (“Appellant”) appeals the final summary judgment awarding

Michael Arman and Ela M. Lugo (“Appellees”) damages of just over $2 million, including

a punitive damages award of $1,483,456. Because we find that disputed issues of

material fact exist and that the awards for punitive damages and certain intangible
damages are peculiarly within the province of the jury, we reverse the final judgment on

all issues, save one.

       In 2004, Appellees contracted with Appellant to purchase real property located in

Oak Hill, Florida. Because this property was completely surrounded by other property

owned by Appellant, the contract between the parties for the purchase of the property

and the later warranty deed provided Appellees with certain easements, including

egress and ingress, across Appellant’s properties.

       For reasons not germane to the resolution of the present appeal, the relationship

between the parties soon deteriorated, resulting in Appellees filing suit against Appellant

in 2010. Appellees were later granted leave to amend their complaint to assert a claim

for punitive damages and, in early 2015, filed the operative third amended complaint

alleging the following six causes of action: (1) fraud in the inducement; (2) breach of

contract and “trespass on the case”;1 (3) slander/disparagement of title; (4) trespass; (5)

unjust enrichment; and (6) intentional infliction of emotional distress.        Appellees

demanded a jury trial on all counts.

       Appellant, who was, by that time, and still is representing himself,2 filed a

detailed, but rambling response to the third amended complaint. Appellees thereafter

filed their motion for summary judgment and attached to their motion, among other

things, their affidavits, a partial transcript from an administrative hearing involving the

parties, and a “schedule of damages,” which included claims for damages in the amount



       1Appellees’ cause of action for “trespass on the case” appears to be a claim that
Appellant was interfering with Appellees’ rights to use certain easements.
       2 The trial court entered an order on December 15, 2014, allowing Appellant’s
prior counsel to withdraw.


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of $10,000 for trespass, $97,500 for “mental anguish and suffering” related to the

intentional infliction of emotional distress action, and a “treble damage calculation” of

$1,565,821.02.3

      Appellant filed a motion to dismiss and strike the motion for summary judgment,

attaching numerous documents to his motion, including his own “Affidavit of Substantive

Impeachable Truth and Facts,” to which he also attached various exhibits. After the

hearing, the trial court entered final judgment awarding Appellees $494,485.34, which is

the total of the compensatory damages requested, and punitive damages of

$1,483,456.00, which is exactly three times the compensatory damages, together with

$27,455.00 in attorney’s fees and $1,493.75 in court costs, for a total of $2,006,890.09.

This appeal ensued.

      The standard of review of a trial court’s entry of a final summary judgment is de

novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.

2000). In conducting this review, an appellate court must examine the record in the light

most favorable to the non-moving party, which, in this case, is Appellant. See Colon v.

JPMorgan Chase Bank, NA, 162 So. 3d 195, 197 (Fla. 5th DCA 2015). “A summary

judgment should not be granted unless the facts are so crystalized that nothing remains

but questions of law. . . . If the evidence will permit different reasonable inferences, it

should be submitted to a jury as a question of fact.” Lashley v. Bowman, 561 So. 2d

406, 408 (Fla. 5th DCA 1990) (citing Moore v. Morris, 475 So. 2d 666 (Fla. 1985)).

Moreover, unless the moving party conclusively establishes, as a matter of law and fact,



      3  Essentially, Appellees asserted that, with the attorney’s fees and court costs
they had incurred in this litigation, their compensatory damages totaled $521,940.34,
and that this amount should be “trebled.”


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its entitlement to the summary judgment, the opposing party is not required to file a

counter-affidavit to defeat the motion. Lindsey v. Cadence Bank, N.A., 135 So. 3d

1164, 1167 (Fla. 1st DCA 2014).

       We find that the facts in this record are not so crystalized that nothing remains

but questions of law, and we specifically address some, but not all, of the issues that

require resolution by the jury. First, the trial court erred in its summary award of punitive

damages. The law is clear that:

              When claims for punitive damages are made, the respective
              provinces of the court and jury are well defined. The court is
              to decide at the close of evidence whether there is a legal
              basis for recovery of punitive damages shown by any
              interpretation of the evidence favorable to the plaintiff. . . .
              Once the court permits the issue of punitive damages to go
              to the jury, the jury has the discretion whether or not to
              award punitive damages and the amount which should be
              awarded.

Wackenhut Corp. v. Canty, 359 So. 2d 430, 435–36 (Fla. 1978) (citation omitted)).

Here, because Appellees demanded a jury trial in the operative complaint, Appellant

was entitled to trial by jury and to have the jury determine the amount of punitive

damages, if any. See Shasho v. Euro Motor Sport, Inc., 979 So. 2d 343, 345 (Fla. 4th

DCA 2008) (“Regardless of who makes the demand [for jury trial], once made it cannot

be withdrawn without the consent of all parties” (quoting Barge v. Simeton, 460 So. 2d

939, 940 (Fla. 4th DCA 1984))); see also Fla. R. Civ. P. 1.430(d) (“A demand for trial by

jury may not be withdrawn without the consent of the parties.”). There is no indication in

the record that Appellant waived his right to a jury trial.

       Summary judgment was also improperly entered on Appellees’ fraud in the

inducement claim. “[F]raud in the inducement is not ordinarily appropriate for summary




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disposition, since only after a full explanation of the facts and circumstances can the

occurrence of fraud be determined.” Joseph v. Liberty Nat’l Bank, 873 So. 2d 384, 389

(Fla. 5th DCA 2004) (citing Burton v. Linotype Co., 556 So. 2d 1126, 1128 (Fla. 3d DCA

1989)). Additionally, the court erred in awarding, as a matter of law and undisputed

fact, damages for pain and suffering because non-economic damages are within the

purview of the jury. See Waddell v. Shoney’s, Inc., 664 So. 2d 1134, 1136 (Fla. 5th

DCA 1995) (holding that “[a] jury is accorded wide latitude in assessing non-economic

damages” and that “[i]n tort cases, damages are to be measured by the jury’s

discretion” (citing Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309, 1314 (Fla.

1986) (additional citation omitted))).

        We do, however, agree that the trial court properly enjoined Appellant from

obstructing Appellees’ ingress and egress to and from their property or otherwise

blocking or obstructing Appellees’ use of the recorded easements described in the

judgment. We affirm the final summary judgment as to this matter, but reverse any

award of damages attributed to this count and remand the issue for resolution by the

jury.

        Lastly, although we are reversing the final summary judgment, our review of the

record indicates that the trial judge was dealing with a recalcitrant, difficult litigant in the

Appellant. We caution Appellant that his ability to appear pro se is not without limitation

and future pleadings, motions, or filings from Appellant containing threatening, obscene,

or abusive language can be stricken by the trial court and subject Appellant to

sanctions, including, but not necessarily limited to, the striking of his pleadings, entry of




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a default judgment, and citations for contempt of court. Cf. Compo v. State, 617 So. 2d

362, 367 (Fla. 2d DCA 1993).

      AFFIRMED in part; REVERSED in part; and REMANDED for further

proceedings.

BERGER, LAMBERT, and EDWARDS, JJ., concur.




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