Opposition Brief — Landahl, Brown & Weed Associates, Inc. v. City of Cape Coral

Supreme Court. U.S.

FIiLED

APR 111986

r

’

No. 85-1499 —— JOSEPH F. SPANIOL, JR.

CLERK

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1985

LANDAHL, BROWN & WEED ASSOCIATES, INC.,

Petitioner,

V.

City OF CAPE CORAL,

Respondent.

On Petition For Writ Of Certiorari To The Supreme

Court of Florida

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

RICHARD V. S. Roosa

A.oia, DuDLEY, Roosa, CoTTRELL, Sutton & McIver

P.O. Box 535

Cape Coral, Florida 33910

(813) 542-4733

Attorney for Respondent

PRESS OF BYRON 8. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

Page

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Order of Trial Court 2/21/86 .........cccccccsccccccocoosees a ee

| Galler GF Tilak Court SIBWGG ..cccceccrccsccccccccscsccecssecess 2a

Notice of Appeal 3/17/86 .......ccccccccecceeseeeeerrressseseseeee 3a

Petitioner’s Brief in Florida

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TABLE OF AUTHORITIES

CASES: Page

Agins v. Tiburon, 447 U.S. 255 (1980) ......eseceeeees 5

Monell v. New York City Dept. of Soc. Serv., 436

UB. GED CUDFE cascctnscceccnssscomsantatnnstoamenmnmate 4

Penn Central Transit Co. v. New York City, 438 U.S.

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Williamson Planning Comm’n v. Hamilton Bank, 473

UWB. cenK EDD aceaconssastonnioectiaandananaa 4

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

No. 85-1499

LANDAHL, BROWN & WEED ASSOCIATES, INC.,

Petitioner,

>»

City OF CAPE CORAL,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Florida

OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Supreme Court of Florida, de-

clining to accept jurisdiction, is not officially reported,

and is reproduced at Petitioner’s App. A.

The opinion of the Second District Court of Appeal

of Florida is reported at 470 So.2d 25 (2nd DCA

1985). The opinion is reproduced at Petitioner’s

App. C.

Order of Trial Court upon remand is reproduced at

Respondents Appendix page la.

Order of Trial Court on motion to set aside judg-

ment is reproduced at Respondents Appendix page

2a.

STATEMENT OF THE CASE

Respondent adopts petitioner’s Statement of the

Case as being substantially correct. Upon remand to

the trial court, an order was entered for the

respondent, Respondent’s Appendix page la, and an

order denying petitioner’s Motion To Set Aside Judg-

ment, Respondent’s Appendix page 2a.

Petitioner has filed a ‘Notice of Appeal’,

Respondent’s Appendix page 3a.

ARGUMENT

I. Whether the City of Cape Coral in the application of

its zoning or building code, in refusing to permit

Landahl to continue to engage in construction under

validly issued building permits in which Landahl had

expended $266,000, effected a taking for which the

Fifth Amendment requires the payment of money

damages to compensate for such taking.

II. Whether the City of Cape Coral in the application

of its zoning or building code, in refusing to permit

Landahl to engage in construction under validly is-

sued building permits in which Landahl had ex-

pended $266,000, engaged in an invalid exercise of

the police power in violation of the due process

clause of the Fourteenth Amendment and/or 42

U.S.C. § 1983.

Petitioner in its ‘““Questions Presented For Review”’

raises issues alleged in the complaint but neither tried

by the Trial Court (appendix page 13a) (Petitioners

Brief page 9) nor raised on review with the Appellate

Courts (Appendix page 6a and 7a). Possibly petitioner

intends to raise such issues in the state courts in its

latest appeal of the February 21, 1986 trial court

order. (Appendix page 3a)

Petitioner claims that the wrongful revocation of a

building permit by officials of a municipality amounts

to a taking for which petitioner is entitled to just

compensation. The Florida Appellate Court ruled that

municipalities are immune from an action for damages

as a result of the manner in which they exercise this

governmental function. A party has only the right to

retain the permit not the right to sue for damages.

Petitioner chose to sue for damages rather than to

retain the permit or appeal the official decision.

(Petitioners Appendix C page 2) Apparently petitioner

sought damages because equitable relief, even if

granted within 90 days of the stopping of construc-

tion, would not have benefited petitioner, especially

in view of the 1975 economy. (Petitioner’s Brief page

9) This resort to the courts with its claim for damages

(Petitioner’s Brief page 8) avoided the municipality’s

final determination in this matter, and without final

action by the municipality, there can be no taking of

property.

The official’s wrongfully made decision to revoke a

building permit may be set aside as a matter of law.

Such action cannot, at the option of the permit holder,

become a taking.

A taking may be by acquisition, as when one takes

possession of another’s property, or by regulation

when government actions force some people alone to

bear public burdens which, in all fairness and justice,

should be borne by the public as a whole. Penn Cen-

tral Transit Co. v. New York City, 438 U.S. 104

(1978)

There can be no public benefit realized by the

wrongful revocation of a building permit and there-

fore no justification for compensation from the mu-

nicipality to the injured party. While a judgment for

damages against the individual tortfeasor may be ap-

propriate, equitable relief against a municipality can

fully restore an injured party and benefit the public

by requiring public officials to comply with the law.

It was not the official actior of the municipality to

amend its building code tha was the basis for the

civil rights claim of the peticioner, but the wrongful

conduct of the city official in revoking the building

permit. This wrongful conduct of the individually

named defendants (Appendix page 14a) cannot, absent

direct involvement, support a claim against the mu-

nicipality. It is only where the action that is alleged

to be unconstitutional, implements or executes a pol-

icy statement, ordinance, regulation, or decision of-

ficially adopted and promulgated by a municipality

that there would lie a cause of action against a mu-

nicipality. Monell v. New York City Dept. of Soc. Serv.

436 U.S. 658, 690 (1978)

Petitioner’s reliance upon Williamson Planning

Comm’n v. Hamilton Bank 473 U.S. —_(1985) as pro-

viding for money damages is not justified. Hamilton

Bank was injured by regulation of its property,

petitioner by wrongful act of officials. Hamilton

Bank’s trial was on the denial of civil rights,

petitioner’s wrongful revocation of permit and Ham-

ilton Bank’s judgment is also against the individual

officials involved where petitioner’s action is only

against the municipality. This substantial difference

between application of a zoning law and wrongful

conduct of an official is even stronger in Agins v.

Tiburon 447 U.S. 255 (1980) where it was found that

the regulation did not constitute a taking. Injury to

a plaintiff is not the same as taking by the defendant.

CONCLUSION

It is submitted that the writ of certiorari should

not issue because the matter is subject to review by

the Second District Court of Appeal, Federal issues

were not litigated in the Florida courts, the wrongful

revocation of a building permit does not constitute a

taking of property and, in Florida, municipalities are

immune from an action for damages under the cir-

cumstances of this case.

RICHARD V. S. ROOSA

ALOIA, DUDLEY, ROOSA, COTTRELL,

SUTTON & MCIVER

P.O. Box 535

Cape Coral, Florida 33910

(813) 542-4733

Attorney for Respondent

APPENDIX

la

IN THE CIRCUIT COURT OF THE TWENTIETH

JUDICIAL CIRCUIT IN AND FOR LEE COUNTY,

FLORIDA

CIVIL ACTION

CASE NO. 75-1907CA

GILVESY CONSTRUCTION, INC., a Florida corporation

Plaintiff,

vs.

LANDAHL, BROWN & WEED ASSOCIATES, INC.,

a Virginia corporation, et al.,

Defendants.

ORDER

THIS court having previously entered a judgment for

LANDAHL, BROWN & WEED ASSOCIATES, INC.

against the CITY OF CAPE CORAL and that judgment

having been reversed with directions to enter judgment

for the CITY OF CAPE CORAL. (City of Cape Coral v.

Landahl, Brown & Weed 470 So 2d 25 (2nd DCA 1985)

Pet. for Rev. denied Fla. Supreme Court Case 67,371 (Dec.

10, 1985)

IT IS ADJUDGED, that judgment is entered for the

CITY OF CAPE CORAL and that Third Party Plaintiffs

LANDAHL, BROWN and WEED ASSOCIATES, INC.

take nothing by this action against the CITY OF CAPE

CORAL and that the CITY OF CAPE CORAL go hence

without day.

ORDERED at Fort Myers, Florida, on the 21 day of

February, 1986.

/s/ James R. Thompson

JAMES R. THOMPSON, Circuit Judge

2a

IN THE CIRCUIT COURT OF THE TWENTIETH

JUDICIAL CIRCUIT IN AND FOR LEE COUNTY,

FLORIDA

CIVIL ACTION

CASE NO. 75-1907CA

GILVESY CONSTRUCTION, INC.,

Plaintiff,

vs.

LANDAHL, BROWN & WEED ASSOCIATES,

Inc., et al.

Defendants.

Vs.

City oF CAPE CORAL

Third party defendant

ORDER

THIS matter came on for hearing on the motion of

Landahl, Brown & Weed Associates, Inc. to set aside the

judgment entered by this Court on February 21, 1986

granting final judgment in the case in favor of the City

of Cape Coral, after hearing argument of the parties, the

Court being of the opinion that the motion should be de-

nied,

IT IS ADJUDGED that the Motion to Set Aside Judg-

ment filed by Landahl, Brown & Weed Associates, Inc.

be, and the same is hereby, denied.

ORDERED at Fort Myers, Florida on the 20 day of

March 1986.

/s/James R. Thompson

JAMES R. THomPsoN, Circuit Judge

3a

IN THE CIRCUIT COURT OF THE TWENTIETH

JUDICIAL CIRCUIT IN AND FOR LEE COUNTY,

FLORIDA

CIVIL ACTION

CASE NO. 75-1907CA

GILVESY CONSTRUCTION, INC.,

Plaintiff,

vs.

LANDAHL, BROWN & WEED ASSOCIATES,

INC.,

Defendant, Appellant

vs.

City OF CAPE CORAL

Third part Defendant, Appellee

NOTICE OF APPEAL

NOTICE IS GIVEN that Landahl, Brown & Weed As-

sociates, Inc., defendant, appellant, and third party

plaintiff, appeals to the Second District Court of Appeal,

the Order of this Court rendered February 21, 1986. The

nature of the order is a final order entering judgment in

favor of the City of Cape Coral.

Edward DeV. Bunn

P.O. Box 1034

Bailey’s Crossroads

Virginia 22041

703-684-2500

Attorney for Landahl, Brown

& Weed Associates, Inc.,

Appellant

4a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy hereof was mailed

this 17th day of March 1986 to Richard V.S. Roosa, Esq.,

P.O. Box 535, Cape Coral, Florida 33910.

/s/EDWARD DEV. BuNN

EDWARD DEV. BuNN

5a

BRIEF ON JURISDICTION

ES TT A A AEE AT

SUPREME COURT OF FLORIDA

APPEAL NO. 67,371

LANDAHL, BROWN & WEED ASSOCIATES, INC.

Plaintiff, Petitioner

Vs.

City oF Cape CORAL

Defendant, Respondent

APPEAL FROM THE SECOND DISTRICT COURT

OF APPEAL OF FLORIDA

Edward DeV. Bunn

P.O. Box 1034

Falls Church

Virginia 22041

703-685-2500

Attorney for Landahl, Brown &

Weed Associates, Inc.,

Plaintiff, Petitioner

6a

TABLE OF CONTENTS

STATEMENT OF THE CASE ............. OM AE Sas es

STATEMENT OF FACTS .cscosocccscecsoccsccsesesessesressecss......,

ISSUES PRESENTED FoR REVIEW

Whether the Second District Court of Appeal De-

cision was in express and direct conflict with a de-

cision of another district or of the Supreme Court

on the same question of law ........ccccceccccceosesseossess.e.

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CONCLUSIONS .csccsccsrscessottiibniaas

7a

TABLE OF CITATIONS

Applegate v. Barnett Bank of Tallahassee, 377 So2d

a ES 12a, 14a

Bregar v. Britton, 75 So2d 753 (Fla 1954) _.......... l6a

City of Miami v. Albro, 120 So2d 23 (Fla 3rd DCA

SITTIN silancsieaestnbeagliinndasnnsenisnsceteninecns 13a, 18a, 20a

Commodore Plaza at Century 21, etc. v. Cohen, 350

So2d 502 (Fla 3rd DCA 1977) ...............0000 12a, 15a

Holmes v. School Board of Orange County, 301 So2d

EE MEE BOERER BOSE ccccccsceccoccoosscvscseseson 12a, 15a

JOA Corp. v. Lamerica Realty Co., 485 So2d 972

I seen sonoaeannons 14a

Karl v. David Ritter, 164 So2d 23 (Fla 3rd DCA

SII TT TIA Silicate denanhsvebeantsinvoseicsseunsupseceonsee 12a, 15a

National Automobile Insurance Association v. Brumit,

SE MD CED BOWED cccccccccccccenscccsconcnsorses 12a, 15a

Nasrallah v. State, 180 So2d 477 (Fla 3rd DCA

I ETT canals caceecadinepinpdenseneehevoenonenss 15a

Puleston v. Alderman, 4 So2d 704 (Fla 1941) Nad 17a

Renna v. North Lauderdale, 430 So2d 945 (Fla 4th

a cnceanonsionns 14a

Roberts v. Keystone Trucking Co., 259 So2d 171 (Fla

TIE ss6.550 icc ctanacumtpeatenssesatasssossssoseoses 17a

Rupp v. Bryant, 417 So2d 658 (Fla

Ne ceubiasbnaianses 13a, 18a, 19a

Shipp v. City of Miami, 172 So2d 618, 172 So2d 618,

UN EE ME CED LOD iccccocscccccsccscsvescoseses 13a, 18a

Tamiami Trail Tours, Inc. v. Cotton, 432 So2a 148

II, WI sc occ ssuccnscnosadapsusasonacns .. 12a, 15a

Texas Co. v. Town of Miami Springs, 44 So2d 808

ons ca adecepunnnes soindsabniondntih 13a, 16a

Town of Largo v. Imperial Homes Co., 309 So2d 571

(Fla 2d DCA 1975) .............. lla, 13a, 14a, 16a, 17a

Trianon Park Condominium Association, Inc. v. City

of Hialeah, No. 63,115 (Fla Apr 4, 1985)

elicit dmdabsinitdiceniniipeecsess lla, 13a, 14a, 18a, 19a, 20a

8a

Fla R Civ P 1.190(b) ...........0cccccccssssosoeoooeee 13a, 15a, 16a

Fla R App P 9.080(aX2XiV) ceecccccccceccesceccececcceeeeeee, 20a

9a

STATEMENT OF THE CASE

This case began in the Twentieth Judicial Circuit, Lee

County, Florida by an action being filed against Landahl,

Brown & Weed Associates, Inc. (Landahl), et al., for re-

covery of damages for unpaid construction work performed

by the plaintiff on seven construction sites in the City of

Cape Coral. Apx 1. Various cross and counter actions were

filed, as well as a separate action filed by Landahl against

the construction manager of the seven projects, which was

consolidated with this action. Landahi also filed a third

party action against the City of Cape Coral, and this is

the subject of this appeal. Apx 3. Following a jury trial,

a judgment was entered in favor of Landahl against the

City in the amount of $266,254, Apx 35. The City did not

file a motion for a new trial, but did file a motion for

remittitur which was denied. Apx 35-26. Thereafter, the

City filed a notice of appeal to the Second District court

of Appeal. Landahl filed a cross appeal contending the

trial court was in error in limiting Landahl’s recovery to

its out of pocket expenses. On May 8, 1985, the Second

District reversed the trial court judgment, and on June 7,

1985, it denied the motion for rehearing filed by Landahl.

Apx 61, 92. Landahl filed a notice to invoke the discre-

tionary jurisdiction of this Court on July 8, 1985. Apx 93.

STATEMENT OF FACTS

The decision of the Second District Court of Appeal

reads in pertinent part as follows:

‘*. The record we have is pitifully meager and

the issues raised on this appeal do not really

address the most glaring defects in appellee’s at-

tempts to state a viable cause of action against

appellant ... the principles of law that require

this result are barely touched on in the brief or

in the record below.

=

10a

.. appellant filed a motion for judgment on the

pleadings. It was at this point, if not before, that

the trial judge should have entered judgment for

appellant.

It also appears that a motion to dismiss with

prejudice should also earlier have been granted.

However, we are not sure, because of the meager

record, that the proper grounds were presented

to the trial judge to support the motions. Apx

61.

The motion to dismiss and the motion for judgment on

the pleadings of the City were based on the identical same

grounds. Apx 17-22. The grounds of the motions, which

were argued in writing (cf. Apx 16), were that since Lan-

dahl and the initial plaintiff had settled between them-

selves the trial court lost jurisdiction over the action. The

City also contended at this point, which was just prior to

trial] in a 9 year old action, that the recovery of Landahl,

if any, should be limited to the amount of the claim of

the initial plaintiff. From its first pleading, 9 years earlier,

Landahl had demanded $10,000,000 in damages.

On appeal, the City raised three issues: (1) whether it

was improperly joined in the action, (2) whether the Court

lost jurisdiction after Landahl settled with the initial

plaintiff, and (3) whether the Landahl judgment should

have been limited to the amount of the claim of the initial

plaintiff. Apx 39.

The Second District did not deal with any of the issues

raised by the City either on appeal or in the trial court,

and made its ruling upon a barren record for the issues

decided. Its ruling was:

‘«’.. there is no cause of action for the manner

in which a municipality exercises it governmental

function of issuing or refusing to issue permits.

lla

Trianon Park Condominium Association, Inc. v.

City of Hialeah, No. 63,115 (Fla. Apr 4 1985) (10

FLW 210)... That is not to say, however, that

a party does not have a right to relief from the

wrongful refusal or revocation of a building per-

mit. That cause of action is limited though to an

action to acquire or retain the permit on the

grounds of equitable estoppel. Town of Largo v.

Imperial Homes Corp., 309 So2d 571 (Fla 2d DCA

1975).

Landahl filed a motion for rehearing pointing out that

the record on these issues was incomplete and misleading,

and that the first count of Landahl’s pleading contained

the title, ‘‘Equitable Estoppel’’, requesting relief under the

Town of Largo case and requesting that the City be en-

joined and ordered to reissue the permits. Apx 3-10, 68-

69. Landahl’s motion for rehearing was denied. Apx 92.

There was no dispute between the parties on the factual

issues, and hence, they were not addressed in the Second

District. Succinctly stated, Landahl obtained building per-

mits from the City to construct seven high rise residential

buildings, expended in excess of $250,000 in out of pocket

expenses and had undertaken construction on each of the

seven buildings pursuant to the permits when a police

officer of the City, allegedly acting as City Manager while

the City Manager was out of town for the day, visited

each of the building sites and posted notices that con-

struction was to stop. No definite written reason was given

for stopping construction, but it was apparent to all con-

cerned that the action was taken in response to substantial

public sentiment against the high rise construction. Section

103.2 of the City Code provides that if construction is

stopped for any reason the City must state the reason for

stopping construction and designate the terms upon which

construction may commence again. The City failed to com-

ply with this Code provision and breached other Code pro-

visions and terms of the permits in stopping the

12a

construction. The decision to stop construction did not come

from the City’s zoning or permit department. See Apx 65-

76, 82-91.

SUMMARY OF ARGUMENTS

The decision of the Second District Court of Appeal ex-

pressly states that the record is incomplete and the basis

of its decision was not raised or argued on appeal. This

is in direct conflict with Applegate v. Barnett Bank of

Tallahassee, 377 So2d 1150 (Fla 1980) that the decision

and proceedings of the trial court are presumed correct

and the burden is on the appellant (City) to demonstrate

error. The decision of the Second District held that Lan-

dahl’s pleadings did not state a cause of action against

the City on the theory of equitable estoppel and that the

facts presented on appeal did not establish a cause of

action for municipal tort liability. The City did not raise

these issues in the trial court or on appeal, and specifically

agreed to the trial of the case on the theory of the City

having an obligation, in the nature of contract obligations,

to comply with the terms and conditions of the building

permits and the code and regulations under which the

permits were issued. Thus, the Second District decision is

in direct and express conflict with Commodore Plaza at

Century 21, etc. v. Cohen, 350 So2d 502 (Fla 3rd DCA

1977); Tamiami Trail Tours, Inc. v. Cotton, 432 So2d 148

(Fla lst DCA 1983), as the City did not object or allege

any error concerning equitable estoppel, and National Au-

tomobile Insurance Association v. Brumit, 98 So2d 330

(Fla 1957); Holmes v. School Board of Orange County, 301

So2d 145 (Fla 4th DCA 1974); Kari v. David Ritter, 164

So2d 23 (Fla 3rd DCA 1964), as the City acquiesced in

the factual theory of the trial of the case and the jury

instructions. The Second District held Landahl did not state

a cause of action for equitable estoppel, but the Landahl

pleading (Apx 3) contains all of the essential elements of

such an action as established in Town of Largo v. Imperial

13a

Home Corp., 309 So2d 571 (Fla 2d DCA 1975); Texas Co.

v. Town of Miami Springs, 44 So2d 808 (Fla 1950). If this

issue had been raised in the trial court, Landahl could

have corrected his pleadings, if such were needed, and in

any event the City tried the case without any objection

on this ground. See Rule 1.190(b), Fla R Civ P. The de-

cision of the Second District is in express and direct con-

flict with the Town of Largo and Town of Miami cases.

The Second District also held that the stopping of proper

construction under valid building permits, without any rea-

sons being given, and in violation of the City’s Code and

regulations was a “discretionary” function and not subject

to municipal tort liability, citing Trianon Park Condomi-

nium Association, Inc. v. City of Hialeah, No. 673,115 (Fla

Apr 4, 1985). This Second District decision is in direct

and express conflict with the Trianen Park case, as that

case expressly states that non-policy decision making is

not a discretionary function of government, but is non-

discretionary and administrative in nature, for which tort

liability may attach. Also, the Second District decision is

in direct and express conflict with Rupp v. Bryant, 417

So2d 658 (Fla 1982) which held that if there is an existing

regulation or code provision requiring governmental acts

to be performed in a particular manner, the performance

of the act in accordance with the regulation or code is

administrative and not discretionary, and tort liability may

attach. In stopping Landahl’s construction, the City

breached its own Code and regulations on the procedure

for stopping construction and breached the terms and con-

ditions of the building permits. The City agreed to this

theory of the case. Apx 34. Further the Second District

decision is in conflict with the Trianon Park case and the

line of cases such as City of Miami v. Albro, 120 So2d

25 (Fla 3rd DCA 1960) and Shipp v. City of Miami, 172

So2d 618, cert dismd 172 So2d 439 (Fla 1965) which hold

that a municipality may be liable in tort for wrongful and

negligent acts of its police officers in enforcing the law.

l4a

In the present case, it was a police officer of the City,

without any authority from the building permit or zoning

department of the City who ordered Landahl to stop con-

struction.

ARGUMENT I

The decision of the Second District expressly states that

the “record we have is pitifully meager and the issues

raised on this appeal do not really address” the principles

of law upon which the trial court judgment is reversed.

The Second District incorrectly relied upon an incomplete

record in conflict with Applegate v. Barnett Bank of Tal-

lahassee, 377 So2d 1150 (Fla 1980); JOA Corp. v. Lamerica

Realty Co., 435 So2d 972 (Fla 3rd DCA 1983); Renna vy.

North Lauderdale, 430 So2d 945 (Fla 4th DCA 1983). The

Second District reversed the trial court decision on the

ground that Landahl could not recover from the City for

refusing to permit Landahl to engage in construction in

accordance with a valid building permit issued to it and

in reliance upon which Landahl expended over $250,000

in out of pocket expenses. The Second District relied upon

Trianon Park Condominium Association, Inc. +. City of

Hialeah, No. 63,115 (Fla Apr 4, 1985) in holding that

Landahi had no cause of action and relied upon Town of

Largo v. Imperial Homes Corp., 309 So2d 571 (Fla 2d

DCA 1975) to hold that the Landahl pleading failed to

State a cause of action.

In relying upon the incomplete record, the Second Dis-

trict incorrectly relied upon misleading facts and proce-

dures. The Second District was not aware that the Trianon

Park case theory was not, by agreement of the City, the

theory of the cause of action in the trial court, which is

why the City did not raise the issue on appeal or provide

an appeal record informative on the issue. If the appeal

record had been complete, it would have been clear that

the Trianon Park case was not applicable to the facts of

the case against the City. Also, neither the appeal record

15a

nor the argument of the parties were informative on eq-

uitable estoppel, and if the record had been compiete, it

would have shown that the pleading did state a cause of

action for equitable estoppel and that the necessary facts

were proved at trial. See Fla R Civ P 1.190(b). The record

would further have shown the City waived any right to

object and acquiesced in the trial procedures, pleadings,

and facts on these issues, and agreed to the applicable

law for the facts of the case. See Apx 34.

ARGUMENT II

The decision of the Second District is in express and

direct conflict with the line of cases that hold that issues

not raised in the appellate court vy the appellant are

waived and abandoned. National Automobile Insurance As-

sociation v. Brumit, 98 So2d 330 (Fla 1957). The decision

is also in conflict with the related rule that a party may

not assert as trial court error actions to which he has not

objected, Commodore Plaza at century 21, etc. v. Cohen,

350 So2d 502 (Fla 3rd DCA 1977); Tamiami Trail Tours,

Inc. v. Cotton, 482 So2d 148 (Fla 1st DCA 1983), or in

which he has acquiesced, Holmes v. School Board of Orange

county, 301 So2d 145 (Fla 4th DCA 1974); Karl v. David

Ritter, 164 So2d 23 (Fla 3rd DCA 1964). Also, objections

made in the trial court which are not argued on appeal

are abandoned. Nasrallah v. State, 180 So2d 477 (Fla 3rd

DCA 1965). Compare the City’s designation of judicial acts

to be reviewed (Apx 37) with the errors argued by the

City on appeal (Apx 39).

The Second District reversed on the round that Landahl

had not stated a cause of action against the City for eq-

uitable estoppel and could not recover on the theory of

municipal tort liability, but the City did not object, agreed

and acquiesced in the cause of action theory as far as

equitable estoppel was concerned and consented to the trial

of the case on the theory that the City was obligated to

comply with the terms and conditions of the building per-

l6a

mits and the code and regulations under which the permits

were issued. See agreed jury instruction at Apx 34. In

Town of Largo v. Imperial Homes Corp., 309 So2d 571

(Fla 2d DCA 1975) it was stated that “A citizen is entitled

to rely on the assurances and commitments of a zoning

authority and if he does, the zoning authority is bound by

its representations, whether they be in the form of words

or deed .. ."" at 309 So2d 573. The Second District decision

is in direct and express conflict with this language of the

Town of Largo case. Also, issues not raised by the plead-

ings in the trial court, but which are tried without objec-

tion and or by acquiescense or consent shall be treated in

all respects as if they had been raised in the pleadings.

Fla R Civ P 1.190(b). The record on appeal was not in-

tended or designed for dealing with the issues raised sua

sponte by the Second District. Landahl would respectfully

submit that it did not have a fair opportunity to defend

or argue against these issues raised by the Second [istrict

in surprise to Landahl. Please see Landahl’s argument: at

Apx 65, 82. See the appeal issues raised by the City at

Apx 39.

ARGUMENT III

The decision of the Second District is in express and

direct conflict with Town of Largo v. Imperial Home Corp.,

309 So2d 571 (Fla 2d DCA 175). See also Bregar v. Brit-

ton, 75 So2d 753 (Fla 19540; Texas Co. v. Town of Miami

Springs, 44 So2d 808 (Fla 1950). In the Town of Largo

case the Court held that “A citizen is entitled to rely on

the assurances and commitments of a zoning authority is

bound by its representations, whether they be in the form

of words or deeds. ...” 309 So2d at 573. Although the

decision upheld an injunction against the municipality, the

language of the decision does not restrict in any way the

right to recover money damages against a municipality.

The first count of the Landah] pleading against the City

was entitled “EQUITABLE ESTOPPEL” and alleges that

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Landahl purchased the properties in reliance on the ex-

isting zoning and obtained building permits from the City,

and thereafter, “expended in excess of $250,000 in reliance

on the building permits.”’ The pleading further alleges that

the City knew that Landahl was relying on existing zoning

and permits, but without proper cause and in violation of

its own Code ordered Landahl to stop construction under

the permits. Apx 3-10. These facts meet the cause of action

guidelines of the Town of Largo case. Landahl proved at

a trial each of the elements set forth in the case of Town

of Largo, and related cases, and the City consented at the

trial to the jury instruction on the point. Apx 34. The City

consented to a jury instruction on damages, as it preferred

to pay a money damage rather than permit the high rise

construction of Landahl. Landahl, as late as the week be-

fore trial, offered to settle on the basis of the Town of

Largo theory that Landahl was entitled to the benefit of

the permits, but in view of the problems with the City,

at the time of trial tock the position that either a money

judgment or the permits was acceptable, and the parties

agreed to a money damage jury instruction a to the City.

See Apx 34. The surprise and confusion of the Second

District decision, along with the 10 day time limitation to

file a motion for rehearing on entirely new issues, pre-

vented Landahl for adequately presenting this matter to

the Second District. Please see Apx 65,82. In addition,

since the City did not object or raise this equitable estoppel

issue in the trial court or on appeal, the Second District

decision is in direct and express conflict with the rule that

Landahl should have been permitted to amend its pleading

to correct any defect in the allegations for a cause of

action, especially after the case was 9 years old and the

issue had never previously been raised. See Roberts v.

Keystone Trucking Company, 259 So2d 171 (Fla 4th DCA

1972) and Puleston v. Alderman, 4 So2d 704 (Fla 1941).

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ARGUMENT IV

The decision of the Second District is in express and

direct conflict with Trianon Park Condominium Associa-

tion, Ine. v.City of Hialeah, No. 63,115 (Fla Apr 4, 1985),

and with Rupp v. Bryant, 417 So2d 658 (Fla 1982), as

well as the line of cases such as City of Miami v. Albro,

120 So2d 23 (Fla 3rd DCA 1960) Shipp v. City of Miami,

172 So2d 618, cert dismd 172 So2d 439 (Fla 1965).

The Second District cited the Trianon Park case and

stated that Landahl was not entitled to recover from the

City for the refusal of the City to permit Landahl to con-

tinue construction in accordance with the terms of the

building permits and for stopping construction in violation

of the terms of its Code and regulations for stopping con-

struction began under building permits it has issued. The

factual situation, not in the record on appeal as the parties

did not consider the appeal to be dealing with any factual

matters, is that a police officer for the City visited each

of the Landahl building sites and posted notices that con-

struction was to stop. The authority for this action did

not come from the City’s zoning or building department.

On the date this took place the Mayor of the City was

out of town for the day, and the police officer acted in

response to pressure from local citizen groups that did not

want high rise units built in the City. Thereafter, the City

administrators, though denying they participated in the

stopping of construction, took no action to rescind the

police officer’s action, but did offer to permit Landahl the

option to build out on “the point” where there was already

a high rise building. In stopping the construction, the City

violated its own Code provision for stopping construction.

See Section 103.2, City of Cape Coral Building Code, Trial

Exhibit 4. That section requires that if the City stops

construction, it must state in writing the reasons therefore

and the terms upon which construction may commence

19a

again. Landahl was never told of the specific reasons for

stopping construction, except citizen pressure, and no

terms were ever given upon which construction commence

again. The City’s position continued through the trial of

this action some 9 years later. See Count I of Landahl’s

pleading (Apx 3) where equitable estoppel relief was de-

manded and an injunction requested for enforcement of

the permit rights (Apx 8), and then compare the jury in-

struction agreed to by the City (Apx 34). As to the reasons

for stopping construction, see the City’s pre-trial statement

at Apx 11.

The Trianon Park case holds that a municipality is not

liable in tort for the manner in which it exercises its “‘dis-

cretionary”’ powers, but is subject to tort rules of liability

for acts that do not rise to the level of decision-making,

but which are nondiscretionary or administrative in nature

at the operational level. The City’s police officer stopping

Landahl’s construction under properly issued valid permits

was an operational level administrative act described in

the Trianon Park case. The decision to “issue” a permit

may be a “discretionary” act, but the stopping of con-

struction under a valid permit and in violation of the City’s

Code and regulations is not. Trianon Park, supra. Also,

the stopping of construction under a validly issued building

permit is to be distinguished from zoning issues. Zoning

is a policy decision making function at the executive hear-

ing level, but building permits are issued, without hearing,

by administrative-operation level employees following laws

and regulations enacted by the City. The case of Rupp v.

Bryant, supra, held that if there is an existing regulation

or code provision requiring or directing the governmental

act to be performed in a particular manner, the manner

in which the act is performed loses all indicia of any dis-

cretionary characteristic, and the tort liability rules apply.

The City violated its own Code and regulations in stopping

Landahl’s construction, and under the Rupp case the tort

rules of liability apply.

20a

Also, the stopping of construction by a police officer,

who acts wrongfully or negligently, falls in the category

of cases long recognized as imposing tort liability on mu-

nicipalities. No logical distinction can be made between a

police officer wrongfully seizing property or person and a

police officer who wrongfully seizes the property right in

building permits to engage in lawful construction. City of

Miami v. Albro, supra; Shipp v. City of Miami, supra;

Trianon Park, supre, on general principles, but also at p

13.

CONCLUSION

It is respectfully requested that this Court accept dis-

cretionary jurisdiction pursuant to Fla R App P

9.030(aK2\ A \iv).