Holmes Beach asks federal court to dismiss treehouse case

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Michelle McClease, visiting from Winchester, Kentucky, shakes out her flip-flops June 20 while on the bench near the treehouse built in an Australian pine tree at 103 29th St., Holmes Beach. She told The Islander she and her family “love it” as an attraction on the beach. Islander Photo: Kathy Prucnell

The city of Holmes Beach is looking to the U.S. District Court in Tampa to dismiss a treehouse case that has lingered in state court since 2013.

Representing the city, attorney Jay Daigneault and his Clearwater firm, Trask Daigneault, transferred the case — one of the first filed by owners Richard Hazen and Lynn Tran in the 12th Circuit Court six years ago — by removing it from state court and opening a new federal case June 7.

Then, June 20, the city filed to dismiss the owners’ case based on a legal doctrine prohibiting the re-litigation of claims that concluded with a final judgment.

Trask Daigneault, which handles the Bert J. Harris Jr. Private Property Rights Act court cases against the city, was brought into the treehouse litigation this spring by the city’s insurer, Florida Municipal Insurance Trust.

Daigneault said June 20 he removed the case to the U.S. District Court, Middle District of Florida, because the court “is better equipped” to handle the new treehouse-related federal claims.

Judge Charlene Edwards Honeywell is assigned to hear the case.

Daigneault’s motion asks to dismiss the amended complaint filed for the owners’ by attorney David Levin, of the Sarasota law firm, Icard Merrill, in May. The complaint seeks more than $15,000 in damages and raises questions of federal law.

Tran and Hazen built the two-story treehouse in an Australian pine tree at their residence, 103 29th St., in 2011 without state or local permits.

An anonymous caller alerted the city to the beachfront construction. The city referred the complaint to the Florida Department of Environmental Protection, which deferred to the city and, in 2013, the city and owners undertook multiple state court filings.

The treehouse dispute has run through city code enforcement, the circuit and appellate courts in Florida and once to the U.S. Supreme Court over the course of six years — with the owners losing at each juncture.

The city’s objection to the treehouse is that it lies within a 50-foot setback from the erosion control line that separates private from state property on the beach.

Leading to the city’s most recent filings in federal court was an April hearing where 12th Circuit Judge Edward Nicholas allowed the 2013 case to proceed with Levin amending the owners’ initial complaint ahead of a 2018 city-initiated enforcement case.

In the amended complaint, the owners challenge the constitutionality of the city building and development code, including the setback.

New to the complaint are allegations that the city violated the Fifth Amendment, 14th Amendment and Article 10 of the U.S. Constitution prohibiting government takings of private property without just compensation.

In the motion to dismiss that complaint, attorney Randy Mora, of the Daigneault firm, argues the allegations were already litigated in state circuit court and left undisturbed by the 2nd District Court of Appeal.

The motion states, “Plaintiffs have raised, or otherwise had the opportunity to raise various legal issues based on the same essential nexus of facts being prosecuted in this action. This procedural predicate bars plaintiffs’ attempts at reasserting or attempting to introduce new legal theories in this case.”

In another Hazen-Tran federal case, in which the couple is representing themselves, Judge James Moody dismissed the owners’ second amended complaint June 19, but gave them 14 days to refile. They filed that case against the city and DEP in March, alleging negligence, injunctive relief and violation of rights and seeking unspecified money damages.

“I just got it. A couple things need to be fixed,” Tran said June 20 about Moody’s decision and direction allowing Tran and Hazen to refile.

Tran had no comment on the city’s removal and motion to dismiss the other case in federal court — except to say their attorney was handling it.

Daigneault acknowledged the owners could seek “to remand” the case back to state court, but added he didn’t see any basis for the challenge.

Also pending in state court are:

  • The city’s petition and complaint for injunctive relief to enforce a special magistrate order to remove the treehouse and fines that have accumulated to more than $67,000.
  • The owners’ allegations against the city and DEP, including allegations of negligence, violation of rights and seeking injunctive relief and unspecified money damages.

In June 20 emails, Holmes Beach treasurer Lori Hill said the city has paid $172,381.17 in attorneys’ fees and costs on the treehouse matter. She also said she had not heard of any increases in insurance premiums for 2019-20.

Tran said June 20 she and Levin are working out a way to pay his fees, adding that his costs are confidential but not based on an hourly rate.

She previously told The Islander the treehouse cost $28,000-$50,000 to build and engineer.

Why continue the litigation and incur the expenses?

“It’s my property. It’s my right. That’s pretty much how I feel,” Tran said.

No hearing is set in any of the pending cases as of June 21.

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