Opposition Brief — Department of Agriculture & Consumer Services v. Mid-Florida Growers, Inc.

IN THE

Supreme Court of the United

OCTOBER TERM 1987

No. 87-2123

DEPARTMENT OF AGRICULTURE

AND CONSUMER SERVICES,

an agency of the State of Florida,

Petitioner,

v.

MID-FLORIDA GROWERS, INC. and

HIMROD & HIMROD CITRUS NURSERY,

Respondents.

RESPONDENTS' BRIEF IN OPPOSITION TO

CERTIORARI AND APPENDIX

_- ¥

M. STEPHEN TURNER

Davip K. Miter*

BROAD and CASSEL

2 820 East Park Avenue

P. O. Drawer 11300

Tallahassee, Florida 32302

904/681-6810

Bruce S. Rocow

Nova University Law Center

3100 S.W. 9th Avenue

Fort Lauderdale, Florida 33315

305/524-2465

*Counsel of Record

i

QUESTION PRESENTED

The Petition misstates the question presented. We

restate the question, presenting reasons for the clarification

and reserving the jurisdictional arguments below.

Is there a taking of private property for which

compensation must be paid when the State, acting under its

police power to promote state economic interests, unilaterally

declares an emergency and destroys valuable citrus trees

which were healthy and harmless, and when no imminent

danger actually existed to warrant destruction?

Question Presented

Table of Authorities

Statement of the Case

Summary of Argument

Argument in Opposition to Writ of Certiorari

I. The Decision Below Presents No Case

or Controversy For this Court

II. The Decision Below Rests Upon an

Adequate and Independent State

Ground

III. The Decision Below is Not Inconsistent

with Federal and Other State Decisions

and Merits No Review

Conclusion

i4

24

iii

TABLE OF AUTHORITIES

PAGE

149 P. 496, 499 (Mont. 1915) 21

95 So.2d 1 (Fla. 1957) 1,9, 10

et al., 521 So.2d 101 (Fla. 1988)

399 So.2d 1374, 1381 (Fla), cert denied

sub nom. Taylor v. Graham,

454 U.S. 1083, 102 S.Ct. 640, 70

L.Ed.2d 618 (1981) 2

=

416 U.S. 312, 316 (1974) 8

383 So.2d. 285 (Fla Sth DCA 1980) 20

DeBenedictus,__ U.S. __, 107

S.Ct. 1232, 94 L.Ed.2d 472 (1987) 18, 19, 20

458 U.S. 417 (1982) "17, 20, 21

463 U.S. 1032 (1983) 11, 13

Miller v. Schoene,

276 U.S. 272 (1927) 19

a

404 U.S. 244, 246 (1971) 8

iv

TABLE OF AUTHORITIES (continued)

PAGE

;

a ay RT Se Servi Mid-Florid

", 505 So.2d 592

(Fla. 2d DCA 1987)

110 So.2d 401 (Fla. 1959) 9, 10

STATEMENT OF THE CASE

The Florida Department of Agriculture and

Consumer Services (the “Department") seeks certiorari to

review a decision of the Florida Supreme Court that required

it to compensate owners of healthy citrus trees which had

been destroyed by the state's canker eradication program.

r ¢ Agricul Te Servi Mid-

Florida Growers, Inc., et al., 521 So.2d 101 (Fla. 1988)

(Petition Appendix A-6). The Florida Supreme Court

affirmed a Florida District Court of Appeal decision which,

in turn, had affirmed a state trial court's decision that the

destroyed trees were healthy and that their taking required

compensation. State of Florida, Department of Agriculture

iC Servi Mid-Florida G

al., 505 So. 2d 592 (Fla. 2d DCA 1987) (Petition Appendix

A-10).

The Florida Supreme Court found that compensation

was required because the destruction of the healthy trees was

not ultimately a disease control measure to prevent public

harm, but a measure to maintain public confidence in the

State citrus industry where a bacterial disease was suspected,

a

2

but never actually present at Respondents’ nurseries. The

Court held:

The Department contends that no taking

occurred in the instant case because the trees

were destroyed in order to prevent a public

harm. We, however, agree with the district

court's conclusion that destruction of the

healthy trees benefitted the entire citrus

industry and, in turn, Florida's economy,

thereby conferring a public benefit rather than

preventing a public harm. . . . Although this

factor alone may not be conclusive, we have

previously recognized that if a regulation

creates a public benefit it is more likely that

there is a taking. See Graham v. Estuary

i , 399 So.2d 1374, 1381

(Fla.), i

cert, denied sub nom. Taylor _v

Graham, 454 U.S. 1083, 102 S.Ct. 640, 70

L.Ed.2d 618 (1981)... . A taking of private

property for a public purpose which requires

compensation may consist of an entirely

negative act, such as destruction. See, e.g.,

Corneal _v. State Plant Board, 95 So.2d 1

(Fla. 1957) (destruction of healthy citrus

trees required compensation).

Petition Appendix A-3.

The Department attempts to squeeze an important

federal question from that decision. The Petition's long

discussion of the "facts," (Petition at 7-14) including

references to the United States Department of Agriculture!

Z 1The Petition mentions the role of the United States Department of

Agriculture (USDA) in helping to fund canker eradication measures and adopting

3

and to other pending suits,2 is irrelevant. The Florida

Supreme Court's opinion alone is the focal point for

certiorari. As we demonstrate below, that opinion, and

subsequent state court proceedings based solely on state

constitutional grounds, present no conflict of authorities on

important federal questions, and warrant no review by this

Court.

rules regulating interstate movement of citrus products. (Petition at 11-13, 18).

These observations form no part of the record or the issues presented in the

Florida courts. Even if properly raised below, however, the USDA's role would

not create a federal issue since no challenge to its powers or duties is presented,

and no relief of any kind is or could be sought against USDA in state court.

2The Department's potential liability in other cases likewise forms no

part of the record or issues presented here. If the Department's precipitous

destruction of healthy and harmless citrus plants inflected losses of this

magnitude on Florida businesses, destroying investments and employment, and

these businesses remain uncompensated after four years, then the Department's

concern should naturally lie with the victims of this action. As the Florida

Supreme Court observed in oral argument, whatever liability is established is

likely to be borne by the state citrus industry as a whole in the form of an

additional tax. Is it possible that the impetus for this Petition comes from

powerful interests in the state citrus industry, who benefited economically from

the eradication program but do not want to share the resulting economic burden?

4

SUMMARY OF ARGUMENT

Certiorari should be denied because:

1. This case presents no case or controversy for

this Court. The trial on the issue of compensation due has

already taken place in the state trial court, and the amount of

compensation has been determined there under state law

alone. Whatever review this Court may make cannot affect

the parties’ rights as determined in this case under state law.

a The decision below rests upon adequate and

independent state grounds. The Florida Supreme Court cited

primarily to state court decisions, and to the state

constitution, as freestanding authority for its holding. Other

proceedings in the record, as well as reference to Florida law

on condemnation generally, support the proposition that

State law supplied the rule of decision here.

3. The decision below is not inconsistent with

other decisions on the taking issue. The burning of

Respondents’ healthy citrus trees was not undertaken to

control disease, because there was no showing that they

were diseased or even that they were exposed to disease and

presented imminent danger. The purpose of the burning was

5

to restore public confidence in the state citrus industry. The

physical destruction of valuable property for such a purpose

presents a clear case for compensation, and does not merit

review.

Each of these reasons is sufficient in itself to justify

denial of the writ.

6

ARGUMENT IN OPPOSITION TO WRIT

I. The Decision Below Presents no Case or

Controversy for This Court

The Petition for Writ of Certiorari should be denied

because this case is moot for purposes of review by this

Court.

On January 21, 1988 the Florida Supreme Court

rendered its opinion that the Department is required to pay

full and just compensation to these Respondents. Petition

Appendix A-6. The Florida Supreme Court did not stay its

decision, however, but permitted the trial on compensation

to proceed. On March 22 and 23, 1988, the trial to

determine the amount of compensation, based solely on the

Florida Constitution, was held in the state trial court. On

April 1, 1988, the Florida Supreme Court denied rehearing.

Petition Appendix A-9. On April 26, 1988, the trial court

entered its judgment in the amount of $1,943,458.00. See

Respondents’ Appendix A- 26. The Department has

appealed that judgment to the District Court of Appeal.

The Department has acknowledged the existence of

these proceedings:

7

In March of 1988, a Pre-Trial Order was

entered [in the state trial court] which

provided that Petitioner was obligated as a

matter of law to pay full and just

compensation to Respondents for their losses

in accordance with the Constitution of the

State of Florida. As a result, at the trial for

damages held in March 1988, the damages

issue was tried without reference to the Fifth

Amendment and the Jury Instructions were

based exclusively on the Florida

Constitution.

Petition at 5.9

Consequently any decision by this Court would not

affect the rights of the Department and Respondents in this

case. The Respondents have already prevailed at trial on

non-federal grounds. If this Court granted certiorari and

reversed the Florida Supreme Court ruling, the

Respondents’ state constitutional damage judgment would

still stand.

Article III, Section 2 of the United States

Constitution requires a case or controversy. “[F]ederal

3 The Pretrial Order contained the following statement which was read

to the jury:

The State of Florida, Department of Agriculture and Consumer

Services is therefore obligated, as a matter of law, to pay full and just

compensation to the Plaintiffs for their losses in accordance with the

Constitution of the State of Florida. This determination. . . may not be

questioned in this proceeding.

Respondents’ Appendix A- 23.

,

8

courts are without power to decide questions that cannot

affect the rights of litigants in the case before them." North

Carolina v. Rice, 404 U.S. 244, 246 (1971); DeFunis v.

Odegaard, 416 U.S. 312, 316 (1974).

In DeFunis the Court declined to decide the merits

because “without regard to the ultimate resolution of the

issues in this case, DeFunis will remain a student in the Law

School... ." 416 U.S. at 316-17. Here, without regard to

the ultimate resolution of the issues presented by the

Department, the Respondents’ right to compensation has

already been decided solely upon state: 1*~ and state law will

remain the applicable standard in the dispute in all further

proceedings.

The Department apparently recognizes the case it is

presenting here is moot. It concedes "no federal issue was

raised in the subsequent trial on damages." Petition at 6.

Nevertheless, it asks this Court to grant certiorari based

upon the fact that the "Department is already defending

eleven citrus canker cases," and it may have substantial

liability “to these plaintiffs and other potential plaintiffs.. . ."

Petition at 6.

9

Respondents have already established and won their

claim under the state constitution. If the Department raises

and preserves federal questions in its other cases, perhaps

one of them may present an actual case or controversy for

this Court's consideration. This case does not meet the

requirements of Article III, Section 2.

II. The Decision Below Rests Upon An

Adequate and Independent State Ground

The certified question before the Florida Supreme

Court was whether the state could "destroy healthy but

suspect citrus plants without compensation." The Court said

no, relying on two state cases:

[C]onsistent with our decisions in State Plant

Board andCorneal, we answer the certified

question in the negative.

Petition Appendix A-5.

This passage refers to State Plant Board v. Smith,

110 So.2d 401 (Fla. 1959), and Corneal v. State Plant

Board, 95 So.2d 2 (Fla. 1957). These cases held that

compensation is due the owner when the State destroys

healthy citrus trees that do not present any imminent danger,

10

for the purpose of protecting other trees of the same species.

Both Smith and Corneal expressly construed the predecessor

of current Article X, Section 6, Florida Constitution, which

guarantees "full compensation" for private property taken.

Smith, passim; Corneal,95 So.2d at 4.

The Court observed that Smith was "a case involving

circumstances similar to the present case." Petition

Appendix A-4. The Court rejected the Department's attempt

to distinguish Smith, noting:

Because Article X, Section 6, Fla. Const. is

self-executing, it is immaterial that there is no

statute specifically authorizing recovery for

loss.

Petition Appendix A-4.

This citation to the Florida Constitution confirms that an

adequate and independent state constitutional basis exists for

the decision.

The Florida Supreme Court's opinion does cite to

four federal cases, in addition to nine state cases. None of

the federal cases is cited as freestanding authority for any

holding. Each federal citation serves an explanatory, as

opposed to expositive, purpose in the opinion. The presence

11

of such citations does not establish that federal law was

dispositive.4

In Michigan v. Long, 463 U.S. 1032 (1983), this

Court held that when a state court decision fairly appears, on

its face, to rest primarily on federal law or to be interwoven

with federal law, and there is no "plain statement"

enunciating adequate and independent state grounds, this

Court may assume, as the most reasonable explanation, that

the decision was based on federal grounds. In Michigan y.

Long, this Court's assumption that no independent state law

ground existed was based on the face of the state court's

opinion. It noted that the state court's only reference to state

law cited state and federal constitutional provisions together.

4the absence of controlling federal issues is reflected in other portions

of the record in the Florida courts. The Respondents’ Second Amended

Complaint (Respondents’ Appendix A-1) the Department's Answer (A-7), the

Pretrial Stipulation (A-10), and the certified question considered by the Florida

appellate courts a. discuss compensation with out reference to federal grounds.

This Court has held that a demand for compensation which does not specify

federal or state grounds is not deemed to raise a federal issue. Consolidated

Tumpike Co, v. Norfolk & O. V, Ry, Co,.228 U.S. 326 (1913).

Moreover, Respondents requested attorney's fees in the Florida courts

based solely on state law grounds (A -115). The Florida Supreme Court's order

granting attorney's fees, Petition Appendix A-9, could only have been based on a

determination of liability for taking under state law.

Finally, as noted above the trial court's Pretrial Order relies solely on

the Florida Constitution as the basis for awarding compensation (A -23) , as did

the entire trial proceeding.

12

Id. at 1037. It noted that the state courts relied exclusively

on federal cases (such as Terry vy. Ohio) and did not cite a

single state case. Id. at 1043. It noted that the state court

declared that the lower state court's decision was based on a

misapplication of Terry v. Ohio principles. Id. at 1044.

No such features appear in the instant opinion of the

Florida Supreme Court. On the contrary, state court

decisions and the state constitution are cited as freestanding

authority for the holding. This decision does not appear on

its face to rest primarily on federal law or to be interwoven

with federal law, and thus affords no grounds for the

assumption that it is based on federal law.

Sn evaluation of the context of state law also reveals that Florida law

provides greater protection to property owners than the United States

Constitution requires. Compare the Fifth Amendmeni ("just compensation")

with Article X, Section 6, Florida Constitution (“full compensation”). See

Sheppard, Compensation in Florida Condemnation Proceedings, 14

U.Fla.L.Rev. 28, 29 (1961) (citing to dissenting opinion comparing "just" and

“full” compensation standards in Central Hanover Bank and Trust Co, v. Pan

American Airways, 137 Fla. 808, 824, 188 So. 820, 826 (1939)). Florida

practitioners consider state law to be more favorable to the property owner in

condemnation actions than federal law. See Weiner, “Distinctions Between

Florida and Federal Practice," Florida Eminent Domain Practice and Procedures

(Fla. Bar 4th Ed. 1988). In this jurisprudential context, it is commonplace for

condemnees to seek redress in state courts under state law, but highly irregular

that a state agency condemnor would seek refuge under federal law. There is no

requirement, of course, that reduces State property rights guarantees to the

minimum standard requird by the United States Constitution. Brennnan, State

Constitutions and the Protection of Individual Rights, 90 Harv. L.Rev. 489

(1977).

13

The permissible assumption under Michigan v. Long

does not displace the petitioner's normal burden to

demonstrate the basis for jurisdiction. Id., n. 8 at 1042. In

this case, no jurisdiction is shown, either because any

possible federal issue is moot, or because there is an

adequate and independent state ground.®

III. The Decision Below is Not Inconsistent

with Federal and Other State Decisions

and Merits No Review

The Florida Supreme Court's decision is not

inconsistent with decisions of other courts on similar issues,

and presents no special occasion for the exercise of

discretionary review. The Department's assertions about the

6The Petition argues that the Florida Supreme Court's decision

determining liability is final for review purposes, contrary to Grays Harbor Co.

v Coats-Fordney Co., 243 U.S. 251 (1917). Modern decisions construing the

finality requirement have preserved the Grays Harbor rule. See Cox Broadcasting

Co, v, Cohn, 420 U.S. 469, n.6 at 477-78 (1975); San Diego Gas & Electric

Co. v, City of San Diego, 450 U.S. 621, 633 (1981). Adherence to precedent

would require that certiorari be denied on this basis as well.

The Department's discussion of the finality issue relies on Cox

Broadcasting. Unlike Cox Broadcasting, however, this case does not involve a

potential future trial that might foreclose important federal issues from review.

That trial has already taken place here, and the only appellate review available

now is on state law grounds that governed the final judgment of the trial court.

If a dispositive federal issue had existed, the opportunity to present it for review

in this Court has passed.

14

novelty, importance and inconsistency of this decision are

based entirely on mischaracterizations of the issues

presented. It is necessary at this point to clarify and

supplement the Department's discussion of the factual

background.

The Department's diagnosis of citrus disease at

Ward's Nursery in August 1984 was based on inadequate

information and false assumptions about the nature of the

disease founti. The disease found was not the virulent "A"

strain canker originally suspected, but a mild strain called

“nursery” or "E” strain canker that posed no threat to the

citrus industry. The undisputed expert testmony at the trial

on liability established this fact. The Department's witnesses

acknowledged that they did not know what disease had been

found. They simply assumed that it was the virulent "A"

strain.”

7 The United States Department of Agriculture recently confirmed that

the “nursery” strain found at Ward's Nursery posed no danger to the industry.

The report found:

There is insufficient evidence to support the contention that even the

most virulent strains (also referred to as aggressive strains), are a serious threat

to citrus production in Florida.

15

The Department followed its assumption that the

disease was dangerous with a unilateral declaration of

emergency and peremptory destruction of citrus trees. The

Department rejected less drastic alternatives, such as

quarantine and spraying. Under Florida law, the owners of

the condemned property had no opportunity to contest the

factual basis for the emergency administrative "Immediate

Final Orders," or to establish the healthiness of the

condemned treees until this inverse condemnation

proceeding.®

Respondents’ trees were never infected or infested

with, or even exposed to, citrus canker of any kind, not even

the "nursery" strain found at Ward's Nursery. They were

No positive evidence exists to suggest that the Xanthomonas nursery

strains pose a threat of significant losses or reduction in quality to bearing citrus

in groves. Thus, it is not clear to us that any control will be required.

Report of the Scientific Review Panel -- Citrus Canker Nurser Strains at 2, 3

(U.S.D.A., May 11, 1988).

The report found that even the “A” or “Asiatic” strain can be controlled by

spraying, cultural practices, and sanitation. [d. at 4.

8See State Plant Board v, Smith, above, and Conner v, Carlton, 223

So.2d 324 (Fla. 1969). In the instant case, the Department began burning

Respondents’ citrus plants on October 7, 1984, and did not issue its “Immediate

Final Orders” until the burning was nearly complete, on October 16, 1984.

Petition Appendix A 44-51. The orders make no findings concerning the

incidence of canker at Respondents’ nurseries.

513

16

healthy and valuable plants posing no threat to other plants.

The Department burned Respondents’ plants

pursuant to the eradication program only because they had

purchased budwood from Ward's Nursery some four

months before any infection there. The Courts below did

not find that the burning was a disease control measure to

protect public health and safety, but rather that it was

perceived necessary to promote or protect the industry's

economic interests. The trial court held that "A police

power circumstance existed to protect the economic public

welfare. ..." Petition Appendix A-17. The Second District

Court of Appeal quoted this finding with approval, and held

that:

Destruction of the healthy trees, however,

assured the continued vitality of Florida's

most valuable citrus industry. Because

destruction of the healthy trees benefited the

entire citrus industry and, in turn, Florida's

economy, the cost is more properly spread

among the many rather than the few who

were unfortunate enough to have purchased

budsticks from the infected nursery.

9 The state courts have upheld police power measures undertaken

topromote the economic interests of the state citrus industry. See Coca-Cola v,

State Dept, of Citrus, 406 So.2d 1079 (Fla. 1982), app. dismissed sub nom Kraft

Inc. v, Florida Dept, of Citrus, 456 U.S. 1002 (1982). That was the purpose of

the eradication program as applied in this case.

17

Petition Appendix A-16.

The Florida Supreme Court also upheld the trial court's

findings, and quoted this conclusion of the District Court of

Appeal with approval. Petition Appendix A-3, A-6.

The authorities cited by the Department for conflict

do not concern the destruction of healthy plants for economic

benefit to the industry. Once that factual situation is

understood, the alleged inconsistencies vanish.

The Florida Supreme Court's reasoning is not

inconsistent with that used by this Court in taking cases.

First, it considered the nature of the Department's action,

especially the physical invasion of the property. A physical

invasion deprives the owner of all use and benefit of the

property, and impairs the ability to dispose of the property.

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

417 (1982). The physical destruction of personal property

has the same effect as the physical invasion of real property.

A second factor is the governmental purpose or

justification for implementing the regulation in question.

This factor was emphasized in Keystone Bituminous Coal

a - |

18

eee US. a NOT SAM.

1232, 94 L.Ed.2d 472 (1987). There is no question that

where government takes property that is inherently harmful

or dangerous -- such as diseased plants or livestock,

adulterated drugs, contraband weapons or mining rights that

by their exercise would endanger the community -- it

addresses a nuisance and prevents grave public harm. In

Keystone Bituminous Coal Ass'n, there was no serious

question that the prohibitive regulation was necessary to

prevent land subsidence and related dangers. There no

compensation is required. On the other hand, when the

government takes property that is harmless in itself and

poses no public danger, compensation is required. The

instant case, involving the burning of healthy and harmless

citrus plants to maintain public confidence in state citrus

products, clearly falls in the latter category for which

compensation is required.

The third factor cited by this Court is the extent to

which regulation interferes with investment-backed

expectations. This factor was discussed in both Loretto and

Keystone Bituminous Coal Ass'n. Keystone Bituminous

19

Coal Ass'n concerned a prohibitive regulation that, on the

record presented, did not significantly diminish property

value or profitable operations thereon. Id., 94 L.Ed.2d at

488, 493. This case concerns a confiscation that destroyed

the entire value of the property. Here the nursery owners

had every right to expect that their investments would bear

fruit. The Department's total destruction of the healthy trees

clearly interfered with Respondents’ legitimate investment-

backed expectations, and justified an award of

compensation. The award of compensation would be due

under either federal or state constitutional law.

Miller v. Schoene, 276 U.S. 272 (1927), is the only

decision from this Court cited by Petitioner that concerns

taking of plants. In Miller, this Court held no compensation

was required under the United States Constitution when the

state felled cedar trees infected with a fungus dangerous to

apple trees. Miller is inapplicable for several reasons. First,

the cedar trees were felled, not burned as in this case, so

their entire value was not destroyed. This distinction was

recognized in Keystone Bituminous Coal Ass'n, above, 94

L.Ed.2d at 506 (dissent of four justices). Second, the cedar

20

trees were actually infected and dangerous, whereas the

citrus plants here were healthy and harmless. Third, the

cedar wood had little economic value compared to the apple

trees on were saved, so the owner's investment-backed

expectations were not substantially impaired. In the instant

case, the healthy citrus stock had substantial value, and was

destroyed only to prevent perceived danger to other citrus

stock. Miller is distinguishable from this case on each of the

three Loretto-Keystone tests.

Finally, the Department cites two lower federal court

decisions and numerous decisions of other state courts that it

claims conflict with the instant decision. These decisions fall

into two categories. There are decisions that authorize

destruction of diseased or dangerous plants or livestock -- a

Situation not applicable here. There are also decisions that

uphold quarantines of suspect plants, where full value is not

destroyed. Florida law recognizes that such reasonable

quarantines do not constitute takings See Flake v. State,

383 So.2d 285 (Fla 5th DCA 1980). Had the cases cited by

the Department considered destruction of healthy crops, they

could reasonably have reached a different result. See, e.g.,

21

Colvill v. Fox, 149 P. 496, 499 (Mont.1915) (if owner's

apples destroyed by state fruit pest inspector were not

affected with apple scab, his right to recover "could not be

questioned.")

The determination of whether a police power exercise

results in a taking involves an ad hoc factual inquiry.

Loretto, above at 426. The District Court of Appeal cited

this principle once, Petition Appendix A-12, and the Florida

Supreme Court cited it twice. Petition Appendix A-2, A-5.

The decision is clearly not an unruly precedent impairing a

wide range of state police powers, as the Department

contends, but is expressly limited to the unique factual

record carefully summarized in the opinions. In short, the

decision furnishes no basis for generalized concern among

State regulatory authorities.

The key point is that the Department inflicted

irreversible damage on healthy and harmless citrus stock,

destroying all use or benefit therein, in order restore public

confidence in Florida citrus products, for the benefit of the

entire citrus industry. The Florida Supreme Court's decision

allows the state to undertake such measures on an emergency

22

basis where perceived necessary, but spreads the burden of

loss to the whole economy where such measures overshoot

their mark by destroying valuable property that poses no

danger. This is a fair, sensible and standard application of

the compensation requirement. Nothing in the decision

merits this Court's review.

23

CONCLUSION

Respondents pray that the Court will deny the

petition for writ of certiorari.

M. Stephen Turner

David K. Miller

(Counsel of Record)

BROAD andCASSEL

P. O. Drawer 11300

820 E. Park Avenue

Tallahassee, FL 32302

904/68 1-68 10

and

Bruce S. Rogow

Nova University Law Center

3100 S.W. 9th Avenue

Ft. Lauderdale, FL 33315

305/524-2465

? ;

A-i

INDEX TO APPENDIX

PAGE

Second Amended Complaint A-1

Answer A-7

Pretrial Stipulation A-10

Respondents’ Motion for Attorneys’ Fees A-15

Pretrial Order A-19

Final Judgment A-26

:

FE

sy

:

A-1

IN THE CIRCUIT COURT OF

TENTH JUDICIAL CIRCUIT

IN AND FOR HARDEE COUNTY

FLORIDA

MID-FLORIDA GROWERS, INC., and

HIMROD & HIMROD CITRUS NURSERY,

a Partnership composed of Joe Himrod

and Joe B. Himrod,

Plaintiffs,

vs. CASE NO. G-85-275

STATE OF FLORIDA, DEPARTMENT OF

AGRICULTURE AND CONSUMER SERVICES,

Defendants.

SECOND AMENDED COMPLAINT

Plaintiffs, Mid-Florida Growers, Inc. ("Mid-Florida") and

Himrod & Himrod Citrus Nursery ("Himrod & Himrod"),

sue the State of Florida, Department of Agriculture and

Consumer Services ("Department"), an agency of the State

of Florida, and allege:

1. This is an action for money damages exceeding

$5,000.00 for unconstitutional taking of Plaintiffs’

property without just compensation.

A-2

2. Mid-Florida is a Florida corporation, doing

business as a nursery located in Hardee County, Florida.

3. Himrod & Himrod Citrus Nursery is a

partnership composed of Joe Himrod and Joe B. Himrod,

doing business as a nursery located in Hardee County,

Florida.

4. The Department is an agency of the State of

Florida responsible for enforcing state laws relating to

agriculture pursuant to Chapters 570 and 581, Florida

Statutes.

5. In April of 1984, Mid-Florida and Himrod &

Himrod received citrus budwood from, or propagated

from, Ward's Nursery, a citrus nursery located in Polk

County, Florida.

6. On August 27, 1984, citrus canker

(Xanthomonas campestris pv. citri) was detected in

Ward's Nursery.

7. Citrus canker is a bacterial disease causing

damage to leaves, shoots, and fruit of susceptible plants in

the Rutaceae (citrus) family.

el S

ee ee — EE ee

A-3

8. Because the records of Ward's Nursery revealed

that Mid-Florida and Himrod & Himrod had obtained

budwood from Ward's Nursery, Department inspectors on

September 6, 1984, obtained samples of the citrus trees

from Mid-Florida and Himrod & Himrod to test whether

their trees were infected with the citrus canker.

9. On September 10, 1984, the Department

informed that the tests conducted on trees from Mid-

Florida and Himrod & Himrod's nurseries were

“negative,” meaning that their trees were not infested with,

or carriers of, citrus canker.

10. Despite this finding, the Department advised

Plaintiff on October 2, 1984, that their citrus trees and

budwood must be burned and that a quarantine of their

nurseries was not an acceptable alternative.

11. |The Department advised Plaintiffs, however, that

they would be paid full and just compensation for the

destruction of their trees, and Plaintiffs thereupon

cooperated with the Department in scheduling their trees

for burning.

A-4

12. From Monday, October 7, 1984, until

Wednesday, October 17, 1984, the Department destroyed

by burning 137,880 of Mid-Florida’s and 143,594 of

Himrod & Himrod's citrus trees and budwood.

13.0n October 16, 1984, the Department entered a

confirmatory order that designated the nurseries of Mid-

Florida and Himrod & Himrod as eradication or treatment

areas pursuant to Emergency Rules SBER84-8 and

SBER84-9 and directed that their budwoods received from

Ward's Nursery and all their citrus trees within 125 feet be

immediately destroyed by burning or other approved

method.

14. Despite statements by Department officials,

including the Commissioner of Agriculture, that citrus tree

owners would be paid full and fair compensation for their

destroyed trees, Plaintiffs were paid, under reservation of

rights, only 30% to 60% of their actual invested dollars,

which was 30% to 40% of the market value of their

destroyed trees. This amount was substantially less than

full and fair compensation for the property destroyed.

A-5

16. Pursuant to its regulatory power to take

reasonable measures to protect the citrus industry in

Florida as a whole, the Department could order the

immediate destruction of Plaintiffs’ non-infected citrus

trees and budwood because a small number of budwood

were bought from a nursery that had some infected stock.

17. Nevertheless, in destroying such trees and

budwood that were not infected by, or carriers of, citrus

canker or other disease, the Department thereby took

Plaintiffs’ property for a public use or purpose, and was

obligated to pay just compensation to Plaintiffs.

1®. The Department inversely condemned Plaintiffs’

property by ordering the destruction thereof without

paying full and fair compensation.

19. Plaintiffs are entitled to recover damages for the

unconstitutional taking of their property in the amount of

the uncompensated value thereof, plus interest.

20. Plaintiffs have retained counsel to represent them

in these proceedings and are also entitled to recover

reasonable attorneys’ fees.

A-6

Wherefore, Plaintiffs pray for entry of Judgment

against Defendant for compensatory damages, attorneys’

fees and costs. Plaintiffs demand trial by jury.

Dated this 10th day of October, 1985.

CULPEPPER, PELHAM, TURNER

& MANNHEIMER

300 East Park Avenue

Post Office Drawer 11300

Tallahassee, Florida 32302

904/68 1-68 10

By: /s/ M. Stephen Turner

M. Stephen Turner

And

ls/ William L. Hyde

William L. Hyde

ATTORNEYS FOR PLAINTIFFS

R F SERVI

I HEREBY CERTIFY that a copy of the foregoing

has been furnished to Robert A. Chastain, General

Counsel, Florida Department of Agriculture and Consumer

Services, Room 515, May Building, Tallahassee, Florida

32301; by U.S. Mail this 10th day of October, 1985.

[s/ M. Stephen Turner

A-7

IN THE CIRCUIT COURT,

TENTH JUDICIAL CIRCUIT,

HARDEE COUNTY, FLORIDA

MID-FLORIDA GROWERS, INC. and

HIMROD & HIMROD CITRUS NURSERY,

a Partnership composed of

Joe Himrod and Joe B. Himrod,

Plaintiffs,

VS. Case No. CA-G-85-275

STATE OF FLORIDA, DEPARTMENT OF

AGRICULTURE AND CONSUMER

SERVICES,

Defendant.

ANSWER

Defendant, State of Florida, Department of

Agriculture and Consumer Services answers the Second

Amended Complaint and says:

F Defendant admits the averments contained in

paragrahs 1, 2, 3, 4, 5, 6, 7, 8, 10, 12, 13 and 16.

2. Defendant denies the averments contained in

paragraphs 11, 17, 18 and 19.

3. Answering paragraph 20, defendant is

without knowledge as to whether or not plaintiffs have

a

Ss

A-8

retained counsel to represent them in these proceedings, but

denies that plaintiffs are entitled to recover attorneys’ fees.

4. Answering paragraph 9, defendant admits

that it informed plaintiffs that the tests conducted on the trees

from the nurseries were "negative," but denies telling

plaintiffs that their trees were not infested with, or carriers

of, citrus canker.

3 Answering paragraph 14, defendant denies

that its Commissioner or any other officials made statements

that citrus tree owners would be full and fair compensation

for their destroyed trees. Defendant admits that plaintiffs

received financial assistance, but is without knowledge as to

the further averments in that paragraph.

6. Defendant is unable to locate within the

bounds of the Second Amended Complaint a paragraph

number 15, and therefore, does not at this time respond to

such a paragraph.

/s/ ROBERT A. CHASTAIN

ROBERT A. CHASTAIN

General Counsel

Florida Department of Agriculture

and Consumer Services

Room 515, Mayo Building

Tallahassee, Florida 32301

Phone: 904/488-6853

A-9

Attorney for Defendant

CERTIFICATE OF SERVICE

I certify that a copy hereof has been furnished to

M. Stephen Turner, Esquire and William L. Hyde, Esquire,

attorneys for plaintiffs, by mail this 3rd day of January,

1986.

Frank A. Graham, Jr.

Attorney

A-10

IN THE CIRCUIT COURT FOR THE

TENTH JUDICIAL CIRCUIT, IN

AND FOR HARDEE COUNTY,

FLORIDA

MID-FLORIDA GROWERS, INC., and

HIMROD & HIMROD CITRUS NURSERY,

a Partnership composed of Joe

Himrod and Joe B. Himrod,

Plaintiffs,

vs. Case No. CA-G-85-275

STATE OF FLORIDA, DEPARTMENT

OF AGRICULTURAL AND CONSUMER

SERVICES,

Defendant.

PRETRIAL STIPULATION

Plaintiffs and Defendants, pursuant to Order for

Pretrial Conference dated June 17, 1986, hereby stipulate

and agree as follows with regard to the non-jury trial

scheduled for September 24, 1986.

(a) i i will i

Plaintiffs’ Second Amended Complaint dated October 10,

1985 (deemed filed by Order of December 20, 1985), and

Defendant's Answer to Second Amended Complaint dated

January 3, 1986.

A-ll

(b) Concise statement of action: Inverse

condemnation suit with request for jury trial to determine just

compensation if Court finds that taking occurred. Plaintiffs

contend thai the Defendant State Agency destroyed by

burning their nursery stock which was not infected or

diseased, thereby resulting in a taking for public purpose.

Defendant contends that the destruction occurred pursuant to

regulatory and police power and therefore cannot constitute a

taking.

(c) Admitted facts: Action is for damages

exceeding $5,000. Plaintiffs do business in Hardee County.

Defendant is charged to enforce state agriculture laws. In

April 1984, Plaintiffs received citrus budwood from Ward's

Nursery in Polk County. On August 27, 1984, a form of

citrus canker was detected at Ward's Nursery. Citrus canker

is a bacterial disease that can cause damage to certain citrus

plants. Defendant obtained samples from Plaintiffs’ Nursery

on September 6, 1984, to determine whether their stock was

infected. On September 10, 1984, Defendant informed

Plaintiff the tests were negative, that is, did not establish that

any of their stock was infected by or infested with citrus

A-12

canker. However, on October 2, 1984, Defendant advised

Plaintiffs that their nursery stock must be burned and that

quarantine was not an acceptable alternative. From October

7, to October 19, 1984, Defendant burned some 137,880 of

Plaintiff Mid-Florida's and 143,594 of Plaintiff Himrod's

trees and budwood. On October 16, 1984, Defendant

entered a emergency confirmatory order designating

Plaintiffs’ Nurseries as eradication areas and directing

destruction of Plaintiffs’ stock within 125 feet of budwoods

from Ward's Nursery.

Disputed facts to be litigated: Whether Defendant

assured that Plaintiffs would be fully compensated upon

cooperation in scheduling their stock for burning, and

whether under the circumstances present, the burning was a

taking of property for which full and just compensation is

due.

(d) Legal issue for court determination: Whether

eminent domain power was exercised and just compensation

is due in the circumstances of this case, or whether there was

a proper exercise of the police power that would not require

full compensation. Defendant also contends that Plaintiffs’

A-13

release of liability resolved all claims for compensation.

Plaintiffs do not agree this is an issue in the case. All parties

stipulate and agree that only liability will be resolved by the

Court at the scheduled September 24, 1986 hearing, and that

if liability is determined in favor of Plaintiffs, the amount of

damages will be heard at a later jury trial.

(e)

liabili

2

3

4

a

6

7

8

wi wh ll

For Plaintiffs:

1.

Bill Lambert

. Joe Himrod

. Joe B. Himrod

. Stan Pelham

E. L. Civerola

. Chan Hannon

. Jim Griffith

Richard Gaskella and Dr. Sal Alfieri

(Defendant's representatives as adverse witnesses)

For Defendant:

1. Dr. Calvin Schoulties

1. Cassette film of canker and burnings in

1984.

2. Citrus Canker Action Plan for the State of

Florida, November 1984, Revised 1985, Revised 1986.

3. Exhibits from Gaskalla deposition.

4. Materials produced and copied from

Defendant's files pursuant to notice regarding exposed

plants, inventory, and destroyed plants and specimen tests at

Plaintiffs’ Nurseries.

For Defendant:

1. All Exhibits to original complaint.

(g) | Motions or other pending matters: None.

ls/ M, Stephen Turner _/s/ Robert A. Chastain

CULPEPPER, PELHAM, ROBERT A. CHASTAIN

TURNER & MANNHEIMER Florida Department of

Post Office Drawer 11300 Agriculture

Tallahassee, FL 32302-3300 Room 515, Mayo Building

904/68 1-68 10 Tallahassee, FL 32301

904/488-6853

Wi te FWP Bieties 0S a eaa oh

A-15

IN THE SUPREME COURT OF FLORIDA

STATE OF FLORIDA, DEPARTMENT

OF AGRICULTURE AND CONSUMER

SERVICES,

Petitioner,

vs. CASE NO. 70-524

MID-FLORIDA GROWERS, INC. AND

HIMROD & HIMROD CITRUS NURSERY,

a partnership composed of

Joe Himrod and Joe B. Himrod,

Respondents.

RESPONDENT'S MOTION FOR ATTORNEYS' FEE

Respondents, Mid-Florida Growers, Inc. and

Himrod & Himrod Citrus Nursery, pursuant to Rule 9.400,

Florida Rules of Appellate Procedure, move the Court for an

order awarding them attorneys’ fees for services in these

proceedings, and as grounds in support thereof says:

3. Under §73.131(2), Florida Statutes (1985),

in a condemnation proceedings, the condemning authority is

required to "pay all reasonable costs of the proceeding in the

appellate court, including reasonable attorneys’ fees to be

assessed by that court, except upon an appeal taken by a

A-16

defendant in which that judgment of the trial court shall be

affirmed."

y 2 Respondents have not initiated proceedings in

this court, but have been obliged to protect the decisions

below finding Petitioner obligated to pay just compensation

for inversely condemning their property. Respondents are

therefore entitled to attorneys’ fees which should be granted

to a property owner except when he unsuccessfully appeals.

. The appellate court below granted

Respondents’ Motion for Attorneys’ Fees as shown by the

attached copy of the Order of April 10, 1987.

4. Suggestion is made to allow the trial court to

determine reasonable attorneys’ fees for services in this

Court when fees and costs for trial and DCA proceedings are

determined. See Boynton v. Canal Authority, 311 So.2d

412 (Fla. lst DCA 1975); State Road Dept. of Florida v.

Hancock, 250 So.2d 307 (Fla. 2nd DCA 1971).

ls/ M. Stephen Turner

M. Stephen Turner of

BROAD AND CASSEL

P. O. Drawer 11300

Tallahassee, FL 32302

904/68 1-6810

ATTORNEYS FOR RESPONDENTS

A-17

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing

has been furnished to FRANK G. GRAHAM, JR., Florida

Department of Agriculture, Room 515, Mayo Building,

Tallahassee, FL 32301, by U.S. Mail, this 29th day of

June, 1987.

M. Stephen Turner

A-18

IN THE SECOND DISTRICT COURT OF APPEAL

LAKELAND, FLORIDA

APRIL 10, 1987

STATE, DEPARTMENT OF

AGRICULTURE AND CONSUMER

SERVICES,

Appellant,

Vv. Case No. 86-2785

MID-FLORIDA GROWERS, INC.,

et al.,

Appellees.

The attorney for Appellees having filed a motion for

attorneys fees in the above-styled appeal, upon

consideration, it is,

Ordered that said motion is hereby granted in an

amount to be set by the trial court.

A TRUE COPY

ATTEST:

CLERK, DISTRICT COURT OF APPEAL

SECOND DISTRICT

-

M. Stephen Turner, Esq.

Harry L. Michaels, Esq.

Hon. Coleman W. Best

EE

A-19

IN THE CIRCUIT COURT FOR THE TENTH JUDICIAL

CIRCUIT

IN AND FOR HARDEE COUNTY, FLORIDA

MID-FLORIDA GROWERS, INC., and

HIMROD & HIMROD CITRUS NURSERY,

a Partnership composd of

Joe Himrod and Joe B. Himrod,

Plaintiffs,

vs. Case Number CA-G-85-275

STATE OF FLORIDA, DEPARTMENT

OF AGRICULTURE AND CONSUMER

SERVICES,

Defendant.

PRETRIAL ORDER

THIS CAUSE came on for pretrial hearing in

Chambers on March 2, 1988. M. Stephen Turner, C. A.

Boswell, Jr., Dabney L. Conner were present with their

clients, William Lambert of Mid-Florida Growers, Inc., Joe

Himrod and Joe Himrod, Jr., of Himrod and Himrod Citrus

Nursery, Plaintiffs, Mygnon Evans, of counsel to Plaintiffs

was also present. Harry Michaels was present for the

Defendant, State of Florida, Department of Agriculture and

Consumer Services. The Court having reviewed Plaintiffs’

Unilateral Pretrial Submission on Damages and received the

A-20

argument of counsel and otherwise being advised of the

premises, it is hereby ordered:

Ri Defendant's ore tenus motion to stay trial

proceedings pending possible review of the determination of

liability of Defendant for damages on re-hearing in the

Supreme Court of Florida or before the United States

Supreme Court is hereby denied because this Court has not

received notice of any stay of proceedings or recall of the

mandate of the Second District Court of Appeal.

a. Defendant's ore tenus motion to continue the

trial now set in this cause on March 22, 1988, for sixty (60)

days is hereby denied.

a Plaintiffs’ Unilateral Pretrial Submission on

Damages is adopted as the Pretrial Stipulation in this cause

and is incorporated by this order because the Defendant has

chosen not to participate in the preparation of a Pretrial

Stipulation as required by the Court's order setting trial and

pretrial conference.

4, Plaintiffs’ pending Motions for Leave to

Amend the Second Amended Complaint to seek additional

compensation for loss of productivity of their business for a

A-21

temporary period and for additional unnecessary expenses

and relocation costs is hereby granted. These claims are

considered part of the matters that may be submitted for

determination by the jury on the issue of Plaintiff's damages.

De Defendant has undertaken to and shall be

obligated to acquire the attendance of a court reporter at the

trial proceedings.

6. The parties shall exchange all exhibits to be

offered into evidence at trial within ten (10) days from the

date of this order.

7. Counsel will meet with the Clerk at 8:30 a.m.

on the morning of the trial to pre-mark exhibits.

8. The parties shall specify within ten (10) days

of the pretrial conference all witnesses they intend to use at

trial bearing in mind the Court's admonition against the use

of cumulative testimony.

9. All discovery shall be concluded by the close

of business on Friday, March 18, 1988. If any person is to

appear by deposition, counsel intending to use such

deposition(s) shall inform opposing counsel by the

discovery cut off date.

A-22

10. Plaintiffs shall submit a complete set of

proposed jury instructions five (5) days prior to trial.

Defendant shall submit its proposed jury instructions on the

morning of the day trial begins.

11. The Statement of the Case set forth below

shall be read by the Court to the Jury. No other statement

of the nature of the case may be made to the jury by either

party.

STATEMENT OF THE CASE:

On October 7, 1984, the State of Florida, Department

of Agriculture and Consumer Services, as a part of their

canker eradication program, commenced burning 137,980

citrus nursery trees belonging to Plaintiff, Mid-Florida

Growers, Inc. and 143,594 citrus nursery trees belonging to

Himrod and Himrod Citrus Nursery. This destruction

continued until October 17, 1988, when all of Plaintiffs’

trees had been destroyed.

Based on competent substantial evidence previously

heard in this matter it has already been determined that no

citrus canker was present at these Plaintiffs’ nurseries and

Ne OPERA ACORN 7

A-23

that their citrus nursery trees were healthy and not

contaminated with canker.

The State of Florida, Department of Agriculture and

Consumer Services is therefore obligated, as a matter of law,

to pay full and just compensation to the Plaintiffs for their

losses in accordance with the Constitution of the State of

Florida. This determination of the Court has been affirmed

by the Second District Court of Appeal of Florida and

Supreme Court of Florida and may not be questioned in this

proceeding.

Your duty will be to determine in this portion of the

case, the losses sustained by these Plaintiffs as a result of the

Department's actions. The only issue for your determination

in this proceeding on damages will be to decide the value of

the trees destroyed and the amount of other compensible

losses associated with this taking by the Department

pursuant to proper instructions given to you by the Court.

12. Plaintiffs and Defendant have agreed that a

six person jury with one alternate will be empaneled and that

each side shall have three peremptory challenges. Each side

A-24

shall have one peremptory challenge in the selection of the

alternate juror.

13. The Plaintiffs shall present their cases first

and shall be entitled to proceed first on opening statement

and closing argument.

14. If the rule of sequestration is invoked at trial,

the attorneys for each party shall be responsible for

instructing and controlling their witnesses on the obligations

of this rule.

DONE AND ORDERED in Chambers at Bartow,

Polk County, Florida, this 8th day of March, 1988.

J. Tim Strickland

J. TIM STRICKLAND

Circuit Judge

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct

copy of the above and foregoing was forwarded by regular

United States Mail this 8th day of March, 1988, to M.

Stephen Turner, Esquire, Post Office Drawer 11300,

Tallahassee, FL 32302; Harry Lewis Michaels, Esquire,

Room 515 Mayo Building, Tallahassee, FL 32399-0800;

and to Dabney L. Conner, Esquire, Post Office Box 1578,

Bartow, FL 33830.

ls/ Polly Rogers

POLLY ROGERS

JUDICIAL ASSISTANT

A-25

IN THE CIRCUIT COURT OF THE

MID-FLORIDA GROWESS, INC. and

HIMROD & HIMROD CITRUS NURSERY,

a composed of Joe

Himrod and Joe B. Himrod,

Plaintiffs,

vs. Case No. CA-G-85-275

STATE OF FLORIDA, DEPARTMENT

OF AGRICULTURE AND CONSUMER

SERVICES,

Defendant.

FINAL JUDGMENT

Based on the jury verdict and the requirements of

law, it is hereby ORDERED AND ADJUDGED that:

1. Defendant, STATE OF FLORIDA,

DEPARTMENT OF AGRICULTURE AND CONSUMER

SERVICES, is liable to and shall pay Plaintiff, MID-

FLORIDA GROWERS, INC., the sum of Nine Hundred

S:xty-six Thousand One Hundred Seventy-seven Dollars

and ninety-five cents ($966,177.95), plus 12% interest per

annum from date hereof, for which let execution issue.

A-26

2. Defendant, STATE OF FLORIDA,

DEPARTMENT OF AGRICULTURE AND CONSUMER

SERVICES, is liable to and shall pay Plaintiff HIMROD &

HIMROD CITRUS NURSERY, the sum of Nine Hundred

Seventy-seven Thousand Two Hundred Eighty-one Dollars

($977,281.00), plus 12% interest per annum from date

hereof, for which let execution issue.

The Court reserves jurisdiction to award attorneys

fees and costs of this case.

DONE AND ORDERED this 26th day of April 1988.

s/J. Tim Strickland

J. Tim Strickland

Circuit Judge

Copies furnished to:

M. Stephen Turner

Harry Mic haels

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