We own a vacant lot we are selling. Survey was done & found my neighbor's fence was 8 feet over on our property. We gave him copy last November. (The fence has been there less that the statute of 15 yrs, he’s been in house 3yrs) He hired an attorney who sent a two-line fax stating we could REMOVE the fence at our expense. We did and he and hit us with a lawsuit in excess of $10,000 for damages, attorneys fees, quiet title to our land & accusing us of trespassing on his property to remove fence saying fence has been there 15yrs +. (aerial photo of prprty stamped 1992 shows NO FENCE around his prprty).I’ve hired an attney to defend, but says if it goes to litigation, could cost upto $15,000 to defend. Is there action I can take against neighbor to collect att fees? My attny said his attorney screwed up bad. Can I file malicious prosecution or abuse of process? We have filed our “answer” denying all. How can we get this thrown out?
2006-11-21 17:47:25 · 7 answers · asked by Repunzzell 1 in Politics & Government ➔ Law & Ethics
That fax should be your defense, I would guess.
2006-11-21 17:51:26 · answer #1 · answered by This Is Not Honor 4 · 1⤊ 0⤋
One of the key elements of a lawsuit for "malicious prosecution" is that you need to win the first lawsuit against you. Until the first lawsuit is terminated, you can't file a malicious prosecution lawsuit.
As others have suggested, you might have your own claim for trespassing and you probably should file your own counterclaim for quiet title. Attorney's fees are usually not recoverable in lawsuit like this, but laws very by state and you should ask your attorney about strategy. A motion for sanctions against the other party or their attorney might be appropriate at a later time.
And quite frankly, the information you get from your attorney is probably better than any advice you get in this forum. While I am an attorney, most of the people answering questions in this forum are not.
2006-11-22 01:29:07 · answer #2 · answered by Carl 7 · 0⤊ 0⤋
You have two things going for you - First, you can sue him for "tresspass", because he was notified that the fence (which was under his control) was on your property. He should have removed it. You can sue for damages equal to the amount of time you were not allowed to use that portion of your property, and also for the costs you incurred to remove the fence. Second, you may have a contract claim. If his lawyer sent you a notice stating that you were welcome to remove the fence at your expense, that fax could be regarded as an offer. Your acceptance of that offer was the removal of the expense. There was consideration because he was receiving the benefit of not having to remove the fence himself. In the case of a contract claim, you can use it as a defense to his claim that you were not entitled to remove the fence. Of course, all of this is contingent upon your survey being correct. Also, he may still have a trespass action against you if you went onto his land while removing the fence.
2006-11-21 18:22:54 · answer #3 · answered by Anonymous · 2⤊ 0⤋
It IS a frivolous lawsuit, and you will win at the first evidence hearing after interrogatories and depsitions. First off, the guy must commit perjury in his interrogatory to claim the fence was there for 15 years...
In any case... in todays civil actions, the looser must pay the court costs and legal fees.... How much is his house worth?
Best way to get it thrown out is to move for summary judgement first thing.
2006-11-21 21:41:22 · answer #4 · answered by Gunny T 6 · 1⤊ 0⤋
When it goes to court,your attorney should ask for all money owed you for the removal and in some states if you really want to be a jerk to this guy,which you should be,he sounds like a moron,you can also charge him for usage fees of your property,eight feet is a lot of usage.Good luck and good for you for standing up against the moron.
2006-11-21 18:04:33 · answer #5 · answered by halfbright 5 · 2⤊ 0⤋
Counter sue for attorneys fees.
2006-11-21 18:20:54 · answer #6 · answered by Anonymous · 0⤊ 0⤋
Generally, if you win a lawsuit you will be awarded legal fees. Your attorney should be discussing this issue with you.
2006-11-21 17:55:47 · answer #7 · answered by Doctor J 7 · 2⤊ 0⤋