Kurt Winselmann, plaintiff below, appeals an order dismissing his amended complaint for trespass with prejudice for failure to state a cause of action. We agree with the court below that the allegations of the amended complaint cannot state a cause of action for trespass, but we reverse the dismissal with prejudice based upon our determination that the complaint may be amended to state an appropriate cause of action against the appellees.
The basis of the purported trespass action essentially was that the appellees, as owners of a subdivision in Monroe County, executed a lease with a third party, (Dolphins Plus,
A simple definition of a civil trespass to real property is an injury to or use of the land of another by one having no right or authority. Brown v. Solary, 37 Fla. 102, 112, 19 So. 161, 164 (1896); Guin v. City of Riviera Beach, 388 So.2d 604, 606 (Fla. 4th DCA 1980). To obtain a recovery for a trespass to real property then, it is clear that the aggrieved party must have had an ownership or possessory interest in the property at the time of the trespass. Vincent v. Hines, 79 Fla. 564, 571-72, 84 So. 614, 616 (1920); Hutchins v. Strickland, 674 So.2d 870, 872 (Fla. 1st DCA 1996); Okaloosa County Gas District v. Enzor, 101 So.2d 406, 407 (Fla. 1st DCA 1958); 55 Fla. Jur.2d Trespass § 7 (1984); see also Atlantic Coast Line R. Co. v. Rutledge, 122 Fla. 154, 156, 165 So. 563, 564 (1935) ("An action for trespass quare clausum fregit is the proper remedy for any forcible violation of the right of possession of realty."); 87 C.J.S. Trespass § 59 (1954). Thus, where it is clear from the allegations of the amended complaint that Winselmann allegedly had only an easement or a right to the use of the subject property, the trial court properly determined that a trespass action could not lie.
Winselmann's appropriate remedy at law for an injury to or disturbance of his alleged easement would have to be an action for trespass on the case or simply "on the case."
Atlantic Coast, 122 Fla. at 156-57, 165 So. 563; see also, e.g., Smith v. McCullough Dredging Co., 152 So.2d 194, 196 (Fla. 3d DCA 1963) (finding where injury resulting directly and immediately from defendant's act is not merely consequential, cause of action is for "simple trespass" and contributory negligence is no defense; where injury is indirect or secondary consequence of defendant's act, cause of action is for "trespass on the case" and contributory negligence is a defense), cert denied, 165 So.2d 178 (Fla. 1964); Leonard v. Nat Harrison Assocs., Inc., 137 So.2d 18, 19 (Fla. 2d DCA 1962) (affirming summary judgment in an action brought for trespass where the injuries sustained by plaintiff while attempting to use
Thus, we find that the lower court abused its discretion when it ordered the dismissal of this action with prejudice where the complaint may be amended to state a cause of action and the privilege to amend has not otherwise been abused. Robbins v. City of Miami Beach, 664 So.2d 1150, 1151 (Fla. 3d DCA 1995); Madison County v. Foxx, 636 So.2d 39, 51 (Fla. 1st DCA 1994) (holding dismissal with prejudice should be granted only when pleader fails to state a cause of action and it conclusively appears that complaint cannot be amended); Kovach v. McLellan, 564 So.2d 274, 276 (Fla. 5th DCA 1990) ("Unless it appears that the privilege to amend has been abused or that the complaint is clearly untenable, it is an abuse of discretion to dismiss a complaint with prejudice."); Countryside Christian Center, Inc. v. City of Clearwater, 542 So.2d 1037, 1038 (Fla. 2d DCA 1989) (finding error to dismiss complaint with prejudice where it is not clear that complaint cannot be amended).
Since this case must be remanded for further proceedings, we must briefly address an additional issue raised below which will not be rendered moot by virtue of this decision. The appellees assert that in the absence of a contract or statute, Winselmann may not seek the recovery of his attorney's fees incurred in his prior litigation with Dolphins Plus in the action below. We disagree. This court and others have recognized the "wrongful act doctrine" which permits a plaintiff to recover third-party litigation expenses as special damages where the defendant's wrongful act caused the plaintiff to litigate with the third-party. State Farm Fire & Casualty Co. v. Pritcher, 546 So.2d 1060, 1061 (Fla. 3d DCA 1989). Specifically, that doctrine provides that:
Behar v. Jefferson Nat'l Bank at Sunny Isles, 519 So.2d 641, 643 (Fla. 3d DCA 1987), rev. denied, 531 So.2d 167 (Fla.1988); Pony Exp. Courier Corp. of Fla. v. Zimmer, 475 So.2d 1316, 1318 (Fla. 2d DCA 1985); Northamerican Van Lines, Inc. v. Roper, 429 So.2d 750, 752 (Fla. 1st DCA 1983); Canadian Universal Ins. Co. v. Employers Surplus Lines Ins. Co., 325 So.2d 29, 31 (Fla. 3d DCA), cert. denied, 336 So.2d 1180 (Fla. 1976); Glusman v. Lieberman, 285 So.2d 29, 31 (Fla. 4th DCA 1973). Thus, where the record before us makes clear that Winselmann was denied any recovery of his attorney's fees in his litigation against Dolphins Plus, he may properly seek the recovery of such fees in this litigation against appellees if it is established below that the appellees' alleged wrongful conduct caused him to incur his attorney's fees in the Dolphins Plus litigation.
Accordingly, we reverse the order of dismissal with prejudice and remand with instructions that Winselmann be permitted to amend his complaint.
Reversed and remanded.