Opposition Brief — Monroe County v. New Port Largo, Inc.

Supreme Court, U.S

73

No. 93-259

In The

Supreme Court of the United States

October Term, 1993

.

MONROE COUNTY, FLORIDA,

Petitioner,

NEW PORT LARGO, INC.,

Respondent.

.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

BRIEF IN OPPOSITION

+

JerFREY B. CRocKETT

Counsel of Record

ARAGON, MArTIN, BURLINGTON

& Crockett, P.A.

2699 South Bayshore Drive

Penthouse

Miami, Florida 33133

(305) 858-2900

MicHAEL R. SEWARD, Eso

2621 Natoma Street

Coconut Grove, Florida 331

(305) 859-8017

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

PTBEST AVAILABLE COPY

i

QUESTIONS PRESENTED FOR REVIEW

I

MAY THE STATUTE OF LIMITATIONS ON A FEDERAL

CLAIM FOR JUST COMPENSATION BASED ON A ZON-

ING DECISION BE TOLLED WHILE A PROPERTY

OWNER PURSUES STATE COURT CHALLENGES TO

THE VALIDITY OF THE ZONING DECISION?

II

ARE THERE ANY REASONS FOR THIS COURT TO

EXERCISE ITS DISCRETION TO REVIEW A CASE

WHICH IS NOT IN CONFLICT WITH THE LAW OF

ANY OTHER CIRCUIT OR OF THIS COURT WHEN

THERE ARE MULTIPLE REASONS WHY RESPON-

DENT’S CLAIM WAS TIMELY BROUGHT?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

STATEMENT OF THE GCAdip cc satinsceneieeeeenees 1

SUMMARY OF ARGUMBING +4 x22stcceubeeyceeasn os 7

ARGUMENT... .:02s0e0es ebaawaee ae eee ees 8

I. THE DECISION OF THE COURT OF APPEALS

IS FULLY CONSISTENT WITH THIS COURT’S

DECISIONS AND THOSE OF OTHER CIRCUITS

Il. THE JUDGMENT WAS CLEARLY CORRECT

FOR ADDITIONAL REASONS................. 13

CONCLUSION ...« «ss<0 vane eee eee es 17

iii

TABLE OF AUTHORITIES

Page

CASES

Biddison v. City of Chicago, 921 F.2d 724 (7th Cir.),

ae AS Oe ee 9

Bieneman v. City of Chicago, 864 F.2d 463 (7th Cir.

1988), cert. denied, 490 U.S. 1080 (1989)............ 17

Board of Regents of State University of New York v.

RR Be, | re rane 16

Corn (I) v. City of Lauderdale Lakes, 816 F.2d 1514

ceed hctn ee dkaves seenceancnvey Se

Corn (III) v. City of Lauderdale Lakes, 904 F.2d 585

reer res ee eee 6, 9, 10, 14

Davis v. Combination Awning & Shelter Co., 62 So.2d

ge les aes kha CRE NEARER Oo 16

First English Evangelical Lutheran Church v. City of

oe ewe, 462 US. 304 (1987)... 2.2.2. e eee ee 13

Gibson v. United States, 781 F.22 1334 (9th Cir.

1986), cert. denied, 479 U.S. 1054 (1987)............ 14

Gilbert v. City of Cambridge, 932 F.2d 51 (1st Cir.

ss EE eee oe 10

Gordon v. City of Warren, 579 F.2d 386 (6th Cir.

UES acca Gabe ey hakh Sabet ek bv ae sacs vos 9

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) .... 14

Kasser v. Dade County, 334 So.2d 928 (Fla. App.

ASG GEM SD Ash koh ki heessnucikx yess vaane> 4, 12, 13

iV

TABLE OF AUTHORITIES —- Continued

Landmark Land Company v. Buchanan, 874 F.2d 717

(10th Cir. 1989). 0... 0... cc cccccccccceeveceess

Machules v. Dept. of Administration, 523 So.2d 1132

ee CU let icciatevelssedeeevaseeiedwessa ca’

Marshall v. Kleppe, 637 F.2d 1217 (9th Cir. 1980) ..

Monroe County v. New Port Largo, 467 So.2d 757

SO Ie BEES oa oe neti tas easesteaseeenwaes

New Port Largo v. Monroe County, 706 F.Supp. 1507

AK ke WS es es

Norco Construction, Inc. v. King County, 801 F.2d

i nee ee...

Railroad Commission v. Pullman Co., 312 U.S. 496

ot Sere ere er rn hr ee errs par ee eae 16

State ex rel. Hollywood Jockey Club v. Stein, 183

DOME: FOF CO 5 6554555 ohn 5 KGS UOdS Avera 16

Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985)...... 8, 11, 12, 13

OTHER AUTHORITIES

PaReMe. DIOISAONE CASTE) 6 occ i ceccencsoveaesakas 2

Pere re rer re 2

PEs. OE ev ks och evn sues pe atead eee ee 6

ce fe es ee ee err ene 4

FORA. BaP to ocntke ov saaan kt ceeenreeeieelne 4

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

STATEMENT OF THE CASE

Respondent, NEW PORT LARGO, INC. (“NPL”),

hereby responds to the Petition for Certiorari filed by

MONROE COUNTY as follows:

The facts as stated by Petitioner are misleading in the

extreme. The County’s factual description departs from

chronological order and omits many pertinent events.

Thus, NPL feels constrained to briefly recite the pertinent

facts.

Purchase. On September 1, 1979, NPL bought the

property at issue (9.65 acres fronting on the Atlantic

Ocean) as part of a purchase for $3.2 million and other

consideration. NPL, relying on the residential zoning in

place, intended to develop the lots for sale as homesites.

As of that time, the property had been platted into resi-

dential lots; the County had required that subdivision

improvements be done for residential development and

had for years collected taxes and levied solid waste

assessments on the property as residential lots. (Appen-

dix 1).! The prior owner had indeed allowed the road on

the property to be used as an airstrip as a temporary

measure pending eventual residential development. A

lease for that purpose would (and did) expire in 1982.

(R1-1; R12-243; R13-253).

1 Appendix 1 contains the factual findings in a Florida state

court judgment in an action between these parties which was

later affirmed on appeal. See discussion of “title lawsuit,” infra.

Rezoning. On January 24, 1980, the property was re-

zoned to “private airport” by Monroe County’s Zoning

Board on application of the County itself. NPL unsuc-

cessfully appealed the rezoning to the Monroe County

Commissioners on September 11, 1980. The County’s

stated bases for the action were that the County needed

the airport for its citizens and that the County was in fact

entitled to actual ownership of the property because of

certain allegedly broken promises to the County by the

original owner of the subject property in the 1960’s. The

County intended that the airport continue to be used as a

public airport. The zoning, however, required use for a

private airport, which under Florida law, Fla.Stat. 330.27

(10), (11), (see also Petitioner’s Appendix E to Writ for

Cert. at E-1) was an airport usable only by the airport

operator and its guests. A “public airport,” by contrast, is

“open for use by the public.” Fla.Stat. 330.27(11) (1979).

As a Florida state court would find in the state court

zoning challenge:

The airport located on the subject property oper-

ated by the lessee was a public airport. (App. 1).

Florida law has contained procedures, in place since

1945, for the acquisition of land by municipalities for

airport purposes. Fla.Stat. 330.01-330.12 (1979). Florida

law provides that airport property “may be acquired by

purchase, gift, devise, lease or other means if such munic-

ipality is able to agree with the owners of such property

on the terms of such acquisition, and otherwise by con-

demnation in the manner provided by [law].” Fla.Stat.

332.01(2). Rezoning to airport without the owner’s agree-

ment is, not surprisingly, not an option contemplated by

Florida law. The County, nonetheless, chose this expe-

dient...

Start of Litigation. Following the County’s rezoning,

in October 1980 NPL filed a challenge to the rezoning in

state law certiorari proceedings, claiming that the rezon-

ing was a departure from the essential requirements of

law. The County’s defense to NPL’s zoning challenge was

essentially to file a separate action, the title lawsuit,

against NPL claiming that in fact title to the property in

question belonged to the County itself as beneficiary of a

constructive trust. After four years, this title lawsuit was

ended in NPL’s favor with the County’s arguments of

fraud wholly discredited. See state court Judgment,

Appendix 1, aff’d., Monroe County v. New Port Largo, 467

So.2d 757 (Fla. App. 1985). In addition to NPL’s zoning

challenge and the County’s title lawsuit, the County filed

an unjust enrichment lawsuit against NPL, which was

eventually dismissed with prejudice, (R11-215) and coop-

erated against NPL’s airport tenant in eviction and bank-

ruptcy proceedings involving that tenant. (R1-1 99;

R9-184; R15-290) All this litigation collectively lasted

from 1980 through 1986. (R1-1).

_ Sale” or Transfers of Property in 1982. The County’s

petition is pervaded by its false and misleading assertion

that New Port Largo “sold” the property at issue on

September 9, 1982. The undisputed facts are quite differ-

ent than the County’s argument suggests. New Port

Largo was beneficially owned in equal shares by two

individuals, Mr. Netter and Mr. Marr. In 1982, in the

midst of bitter litigation against the County, Mr. Netter

and Mr. Marr transferred half of the lots into a corpora-

tion owned by Mr. Netter and half into a trust for the

CC

benefit of Mr. Marr. This is stated in an uncontradicted

affidavit (Appendix 3; R12-243). It is undisputed that “the

beneficial owners of New Port Largo, Stuart Marr and

[Charles Netter] remained such and in the same propor-

tion [50-50] after the 1982 transfers.” Id. Thus, there was

no change in the substance of ownership between 1979

and the ultimate invalidation of the zoning as confisca-

tory in 1986. In no sense did the owners of the property at

issue “divest” themselves of it as the County alleges.

Zoning Challenge Successful in State Court. Once the

title lawsuit was resolved, New Port Largo pressed its

state-law zoning challenge to a conclusion. Despite the

title transfers, NPL remained the party plaintiff in this

action, which was proper under the Florida substitution

of parties rule, Fla.Rul.Civ.P. 1.270(c), which is similar to,

and even more permissive than, Fed.R.Civ.P. 21(c).

New Port Largo argued, among other challenges, that

the taking was invalid under state law and a taking under

federal law. The state court invalidated the zoning, hold-

ing, inter alia, that “the subject property did not qualify

by dimensions to meet the requirements as a public air-

port or a private airport” and that “rezoning of this

property, now determined [in the title lawsuit] to be

private, to airport, would deprive the owner of any rea-

sonable use.” (Final Judgment, App. 2).2 Accordingly,

pursuant to Florida law, e.g., Kasser v. Dade County, 344

2 Appendix 2 contains the Final Judgment in NPL’s zoning

challenge.

So.2d 928, 929 (Fla. App. 1977); see, Corn v. City of Lauder-

dale Lakes, 816 F.2d 1514 (11th Cir. 1987) (describing cer-

tiorari remedy under Florida law for confiscatory

zoning), the rezoning was invalidated. The County has

never appealed this judgment nor moved to collaterally

attack this judgment on any ground. NPL did not appeal,

of course, since it obtained the declaratory relief it had

requested, the only relief then available under Florida

law.

Initiation of Federal Lawsuit. NPL filed the instant

lawsuit in July 1987 seeking, among other things, just

compensation for the temporary taking of its property.

The County’s immediate response was to move that the

action should be dismissed as barred by the four-year

statute of limitations. The district court, in a reported

decision, denied the motion on the ground that the

County’s alleged actions, including the title lawsuit, rep-

resented a “continuing wrong” against plaintiff which

tolled the running of the section 1983 statute of limita-

tions. New Port Largo v. Monroe County, 706 F.Supp. 1507

(S.D. Fla. 1986). The County did not in any way question

this ruling on appeal of the Final Judgment to the Elev-

enth Circuit. It is thus the law of this case that (assuming

a unity of ownership) the continuing wrongs alleged by

the County were sufficient to toll the statute of limita-

tions until the conclusion of the title litigation in 1985.

Monroe County later moved for summary judgment

on the argument that, solely because of the 1982 transfers,

NPL did not suffer any “continuing wrong” after 1982.

Monroe County cited no authority to suggest that a

iii aie

change in the form of ownership among the same benefi-

cial owners would affect the liability of a state govern-

mental agency fora “taking.” Nor did the County explain

why NPL’s defense of the title lawsuit in which it was the

defendant and NPL’s pursuit of the eviction and other

litigation did not serve as a “continuing wrong” to NPL

past 1982. Moreover, the transferee title owners executed

an Assignment and ratification to confirm that NPL was

the proper plaintiff, able to pursue all of their claims as

well as its own. Appendix 3. This Assignment and rat-

ification agreement related back to the initial filing of the

Complaint in 1987, pursuant to Fed.R.Civ.P. 17. Nonethe-

less, the district court, without citation of any case

authority, granted Monroe County’s motion for summary

judgment on the limitations ground.

Reversal on Appeal. On appeal of this dismissal,

reported at 985 F.2d 1488 (11th Cir. 1993), the Eleventh

Circuit reversed based upon an intervening precedent,

Corn (III) v. City of Lauderdale Lakes, 904 F.2d 585 (11th Cir.

1990). The Court held that NPL’s pursuit of the zoning

challenge tolled the running of the section 1983 statute of

limitations. The Eleventh Circuit did not reach other

bases for reversal raised by appellant. Like the existence

vel non of a taking, the Eleventh Circuit left the effect, if

any, of the 1982 transfers as an issue for the district court

on remand. New Port Largo v. Monroe County, 985 F.2d at

1490 n.2. After the Eleventh Circuit’s denial of Peti-

tioner’s motions for rehearing and rehearing in banc,

without seeking a response from NPL, Petitioner filed the

instant petition for certiorari.

¢

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari should be denied

because the decision rendered by the United States Court

of Appeals for the Eleventh Circuit does not conflict with

any decision of this Court or of another United States

Court of Appeals on the same matter and because there

are no special and important reasons for this Court to

review the above-entitled case.

Like every court of appeals which has addressed the

question, the Eleventh Circuit has ruled that a land-

owner’s pursuit of state law challenges to land use regu-

lation may toll the accrual of the statute of limitations for

an inverse condemnation or “just compensation” claim.

The Eleventh, Sixth and Ninth Circuits are in accord with

this holding, and no court of appeals has ruled to the

contrary. Moreover, the policy considerations served by

this rule of law — namely, encouragement of local land

use law disputes to be resolved in state court — fully

support it. There is no special importance to this case, or

compelling argument raised by Petitioner, sufficient for

the court to address an issue on which the courts of

appeals are in accord.

Moreover, there are other legal hurdles to the Peti-

tioner’s ultimate success on the statute of limitations

issue even if its challenge to the decision of the Eleventh

Circuit is upheld. Respondent’s claim would still be

timely because (1) the continuing wrongs of Monroe

County, as previously held by the district court, pre-

vented accrual of the statute of limitations; (2) equitable

tolling principles of Florida law tolled the statute of

limitation; (3) a federal district court would have been

compelled to abstain in any lawsuit brought before reso-

lution of all original state court litigation; and (4) NPL’s

direct claims for compensation under the Constitution

would be timely under the borrowed limitation period

for Florida real property actions.

Based on the above, the Petition for Writ of Certiorari

should be denied.

ARGUMENT

REASONS FOR DENYING THE WRIT

I.

THE DECISION OF THE COURT OF APPEALS IS

FULLY CONSISTENT WITH THIS COURT’S DECI-

SIONS AND THOSE OF OTHER CIRCUITS

The gist of Petitioner’s argument is that the holding

of the court below is inconsistent with this Court’s deci-

sion in Williamson County Regional Planning Commission v.

Hamilton Bank, 473 U.S. 172 (1985). In fact, as the majority

below noted, no such inconsistency exists. The Williamson

opinion states that exhaustion of state review procedures

of, for instance, zoning actions, is not required before a

section 1983 action for inverse condemnation may be com-

menced. Williamson, 473 U.S. at 192, 194 n.13. The court

below held that where an aggrieved property owner chal-

lenges a rezoning in state court, this may extend the

period of time in which an otherwise ripe claim may

properly be pursued by tolling the applicable statute of

limitations.

—— \

While another Eleventh Circuit case, Corn v. City of

Lauderdale Lakes, 904 F.2d 585 (11th Cir. 1990) (styled Corn

III by the Eleventh Circuit in the instant matter), may

arguably have conflated the two separate questions of

ripeness and tolling, it is clear after the New Port Largo

case that the only issue on which the Eleventh Circuit has

actually ruled is in the latter. The Court held that “NPL’s

temporary regulatory taking claims were tolled until Jan-

uary 2, 1986, when the state circuit court invalidated the

County’s rezoning of the subject property.” After New

Port Largo, the law in the Eleventh Circuit and elsewhere

is that while a landowner may (assuming the other pre-

requisites are met) begin a section 1983 action without

challenging a rezoning in state court, if the landowner

does institute such a state court challenge, the federal

statute of limitations on the closely related federal consti-

tutional claims may be tolled.

In this, the Eleventh Circuit is in accordance with

each and every other circuit that has addressed the ques-

tion. As correctly pointed out in the concurring opinion

of Circuit Judge Edmondson, no case of this Court is in

conflict. The Ninth Circuit, of course, in Norco Construc-

tion, Inc. v. King County, 801 F.2d 1143 (9th Cir. 1986)

(Kennedy, J.), on facts parallel to Corn III and New Port

Largo, reached the same conclusion. The Sixth Circuit, in

Gordon v. City of Warren, 579 F.2d 386 (6th Cir. 1987), has

also reached a result consistent with the tolling allowed

in the Ninth and Eleventh Circuits. The Seventh Circuit,

while it has apparently not addressed the exact question

at issue here, has cited Norco and Corn III with approval

in the very case which Petitioner claims represents a

“conflict.” Biddison v. City of Chicago, 921 F.2d 724, 727

10

(7th Cir.), cert. denied, 112 S. Ct. 192 (1991). The other

cases cited by Petitioner, Gilbert v. City of Cambridge, 932

F.2d 51 (ist Cir. 1991) and Landmark Land Company v.

Buchanan, 874 F.2d 717 (10th Cir. 1989) simply cite Wil-

liamson without addressing tolling issues or making any

criticism whatsoever of either the Norco or Corn III deci-

sions. In fact, no circuit court case has ever made any

criticism whatsoever, or identified any conflict, with the

rule of law as adopted by the Eleventh Circuit. There is

simply no “conflict among the circuits” for this Court to

resolve.

Nor is there as a matter of public policy any reason

for concern regarding the result reached by the Eleventh

and Ninth Circuits and others which have cited Norco or

Corn III with approval. As Circuit Judge Edmondson

stated in his concurring opinion:

As a practical matter, we also want, in taking

cases based on local land use regulation, no rule

that makes landowners feel that it is risky to use

the state courts to do a task for which the state

courts are extremely well suited: to determine

the validity or invalidity of the land use regula-

tion. The landowners who go into court are

neither sleeping on their rights nor lulling local

governments into thinking there is no problem.

If landowners suspect that the statute of limita-

tions may run on their federal compensation

claims while they are in state courts, they might

either always ignore the state courts and come

directly to federal court, or file in both state and

federal court at the outset. Either way, we add to

the workload of the federal courts needlessly

and probably increase the likelihood that federal

11

courts will be interfering in local land use deter-

minations.

Id., 985 F.2d at 1502 (Edmondson, J., specially concur-

ring.) The Petitioner has said nothing to take issue with

the wisdom of Judge Edmondson’s analysis. The Eleventh

Circuit’s ruling, like this Court’s Williamson case, is calcu-

lated to encourage the pursuit of land use regulation

challenges in state court, a salubrious result by any stan-

dard.

The County, in its Point Il, attempts to argue that this

case might give this Court some basis for addressing hypo-

thetical and fanciful problems not raised by the facts of this

case which the County believes may arise when a landowner

has sold property before a “final development decision.” It

strains credulity more than a bit for Monroe County to

complain of the plight of landowners who find it difficult to

pursue their “legitimate claims for just compensation.” Peti-

tion at 11. The facts of this case do not in any event raise the

issues discussed by Monroe County in its Part II. The hold-

ing of the Eleventh Circuit, as stated by that Court, is simply

that “NPL’s temporary regulatory taking claims were tolled

until January 2, 1986, when the state circuit court invalidated

the County’s rezoning of the subject property.” Id., 985 F.2d

at 1495. The case is thus a limitations tolling decision; the

court did not rule on the issue of whether the action could

have been brought earlier. See Id., 985 F.2d at 1499

(Edmondson, J., concurring). The law regarding when a

claim may first be pursued (i.e., ripeness) remains as stated

in this Court’s decision in Williamson.

The County asserts that “fact patterns involving the

sale of property” will become more frequently raised in

i

12

taking actions. Petition at 11. If so, then surely this is an

argument for treating such issues when they arise in their

factual context, rather than hypothetically. They do not

arise in this case, where it is uncontradicted that in reality

the only “sale” that occurred was a change in the form of

ownership between the same beneficial owners, who

remained 50-50 partners in the subject property from 1979

through 1986. Appendix 3. Such a transfer cannot, con-

trary to the County’s argument, generate a ripe cause of

action where one would otherwise be lacking. Surely, a

landowner could not evade the Williamson finality

requirements by transferring his property to a corpora-

tion he himself controlled. Yet this bizarre and facially

absurd position is what the County would have this court

address. Based on the policies of the just compensation

clause, there is no reason to give such transfers as

occurred here any significance for taking liability or stat-

ute of limitation purposes. Nor would the principles of

law that might be relevant to a case of true relinquish-

ment of ownership be informed by a consideration of the

facts of this case.

The facts of this case, while crying out in Respondent's

mind for a federal damages remedy, are atypical. As recog-

nized by the Eleventh Circuit below, 985 F.2d at 1493-94,

Florida law at the time of NPL’s challenge expressly did not

allow damages for confiscatory zoning. E.g., Kasser v. Dade

County, Florida, 344 So.2d 928 (Fla.App. 1977) (inverse con-

demnation cause of action based on zoning did not exist;

sole remedy under Florida law is invalidating of zoning as

13

confiscatory);3 Corn v. City of Lauderdale Lakes (Corn I), 816

F.2d 1514, 1517-19 (11th Cir. 1987) (same). With the later

decisions of First English Evangelical Luiheran Church v. City of

Los Angeles, 482 U.S. 304 (1987) (damages claim for tempor-

ary taking exists), and Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172 (1985), (no federal

claim until state fails to provide just compensation), it is

likely that most, if not all, states will allow or require damage

claims (i.e., “just compensation” claims) to be pursued in

state court. While it is not impossible to imagine valid fed-

eral inverse condemnation claims, the barriers and delays

endured by NPL in this case are not likely to be often

repeated.

II

THE JUDGMENT WAS CLEARLY CORRECT FOR

ADDITIONAL REASONS

The Eleventh Circuit’s opinion resolved the case

before it in terms of the tolling effect of the state court

zoning challenge which NPL endured from 1980 to 1986.

The Eleventh Circuit decision that the section 1983 statute

of limitations was tolled during the pendency of the

zoning challenge was clearly correct.

Because this ground alone made clear that reversal

was required, the court did not choose to reach other

equally persuasive bases for reversal. These grounds,

3 Kasser, from the district court of appeal with appellate

jurisdiction over Monroe County, would have been the govern-

ing precedent in the minds of NPL’s attorneys at the time of the

state court zoning challenge.

14

however, would defeat Petitioner’s statute of limitations

defense even absent the Corn III reasoning.

Foremost among these is the “continuing wrong”

tolling argument, which was initially argued by plaintiff,

and accepted by the district court, and was in proceed-

ings below utilized by Monroe County as well. See, NPL

v. Monroe County, 985 F.2d at 1492-93. All parties

acknowledge that, assuming NPL held continued owner-

ship of the property, the statute of limitations would be

tolled at least through mid-1985 (the conclusion of the

title litigation) on the “continuing wrong” theory. Much

as the statute of limitations for a claim of conspiracy or

discrimination does not accrue while wrongful acts pur-

suant to the conspiracy or discriminatory practice are

ongoing, Gibson v. United States, 781 F.2d 1334; 1340-41

(9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987) (Section

1983 conspiracy); Havens Realty Corp. v. Coleman, 455 U.S.

363, 380-81 (1982) (discriminatory practices), the statute

of limitations on an inverse condemnation claim does not

accrue in the face of new affirmative acts of appropria-

tion. The acts of the County which served as “continuing

wrongs” or continuing acts of appropriation, include (1)

the title lawsuit filed by Monroe County against NPL in

state court arguing that the County was entitled without

any payment whatsoever to the 9.65 waterfront acres at

issue; (2) still another lawsuit against NPL filed by Mon-

roe County in which it claimed that NPL’s purchase and

possession of the property represented “unjust enrich-

ment”; (3) aiding and abetting (by testimony and other-

wise) the efforts of the airport tenant to resist NPL’s

eviction of him following the termination of his lease (a

15

course of action which had no valid legal basis what-

soever), (4) accepting rent from the airport tenant at a

time when NPL was the record owner and frustrating

NPL’s efforts to collect rent from the tenant; and (5)

manipulating public opinion through dissemination of

damaging accusations about NPL’s owners to support

their rezoning efforts and to thwart NPL’s attempt to use

its own property.

The County stepped well beyond its typical role in

the zoning of private property because its “zoning” and

other actions were, transparently, as the County itself

admitted in briefing below, a self-interested effort to

obtain an additional public airport for the County with-

out having to pay for it. If there were ever a case where

application of the “continuing wrong” doctrine to toll the

accrual of the statute of limitations is appropriate, it is

this case.

Given that all parties are thus in agreement that the

County’s “continuing wrongs” would have tolled the

statute in the absence of the 1982 transfers of title, there is

no basis for cutting off the application of that doctrine

simply because of the paper transfers. NPL (not its trans-

ferees) remained the opposing party in the County’s law-

suits (the title or constructive trust case, and the unjust

enrichment and eviction lawsuits as well) and its owners

were the target of the County’s efforts to appropriate the

property. NPL, under the language of the warranty

deeds, possessed the legal duty to its transferees to

defend a title challenge such as the County’s. Thus, there

is nothing in the transfers of title which would logically

terminate application of the “continuing wrong” tolling

16

principles. For this additional reason, the result reached

by the Eleventh Circuit was clearly correct.

Additional reasons why the statute of limitations

never expired on NPL’s claims are found in the doctrines

of equitable tolling under state law and abstention.

Assuming NPL, which was all but bankrupted by the vast

array of litigation against the County over the property,

could afford yet another lawsuit, no federal court would

have entertained it during the pendency of the state law

challenge, based upon Railroad Commission v. Pullman Co.,

312 U.S. 496 (1941). For instance, a federal court would

avoid any possible inconsistency between its own Judg-

ment and those of state courts regarding whether the

County or NPL was entitled to title ownership and

whether the airport zoning was confiscatory. In those

circumstances, plainly the statute of limitations of the

federal claims cannot run.

Moreover, under Florida law, whose principles of

tolling also apply under Board of Regents of State Univer-

sity of New York, v. Tomanio, 446 U.S. 478 (1980), “during

the pendency of litigation provoked by defendant’s own

acts, limitations do not run against plaintiff.” Davis v.

Combination Awning & Shelter Co., 62 So.2d 742, 744 (Fla.

1955). Florida law also requires tolling to prevent a defen-

dant from profiting by its own wrong. Machules v. Dept. of

Administration, 523 So.2d 1132 (Fla. 1988); State ex rel.

Hollywood Jockey Club v. Stein, 183 So.2d 753 (1938).

NPL also argued, in a position noted but not

addressed by the Eleventh Circuit below, see 985 F.2d 1494

n.13, that the seven-year limitations period of § 95.12,

Fla.Stat. (real property actions) or some longer period

17

applied. See, Marshall v. Kleppe, 637 F.2d 1217 (9th Cir.

1980); contra, Bieneman v. City of Chicago, 864 F.2d 463,

467-70 (7th Cir. 1988), cert. denied, 490 U.S. 1080 (1989).

NPL would also contend that any reduction in the perti-

nent limitations period should not be retroactively

applied. Under a seven year or longer limitations period,

NPL’s claims arising directly under the Constitution

would be timely.

For any of these reasons, NPL’s claim was timely

brought in 1987. While the facts of the case are unusual

and (one hopes) unlikely to recur, the result reached by

the Eleventh Circuit was proper on any number of legal

grounds.

CONCLUSION

The Petition for Writ of Certiorari should be denied.

Respectfully submitted,

JerFreY B. Crockett, Esq.

Counsel of Record

ARAGON, MarTIN, BURLINGTON

& Crockett, P.A.

2699 South Bayshore Drive,

Penthouse

Miami, Florida 33133

(305) 858-2900

- and -

MICHAEL R. SEWARD, Esq.

2621 Natoma Street

Miami, FL 33133

(305) 859-8017

Attorneys for Respondent

APPENDIX 1

App. 1

IN THE CIRCUIT COURT OF THE SIXTEENTH

JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN

AND FOR MONROE COUNTY, CIVIL ACTION

MONROE COUNTY, a political _ : CASE NO.

subdivision, State of 82-432-CA-17

Florida, ‘FINDINGS OF

Plaintiff, ° FACT,

we CONCLUSIONS

. ‘OF LAW AND

NEW PORT LARGO, INC., a FINAL

Florida corporation, JUDGMENT

Defendant,

THIS COURT, after having heard the evidence and

considered the weight to be given the testimony of each

witness in the light of their demeanor while testifying,

their frankness or lack thereof, their interest in the out-

come of the case if any, their means and opportunity to

know the facts about which they testified, the reasonable-

ness of their testimony in light of all of the evidence in

the case, and considering the Citations of authority and

argument of counsel for the parties, makes the following

findings of fact, conclusions of law and enters the follow-

ing Final Judgment:

I. FINDINGS OF FACT.

1. In 1960, Darryle Sheley (“Sheley”) acquired cer-

tain property referred to as the Port Largo Subdivision

App. 2

(“Subdivision”) as trustee for Mr. and Mrs. Stuart Faber

(“Faber”).

2. In the early 1960s, Sheley began developing the

Subdivision.

3. In the course of said development, he dug two

canals which provided deep-water access to the Subdivi-

sion.

4. Sheley allowed the Monroe County (“County”)

mosquito control planes to use a portion of his land in the

Subdivision, that had been cleared but not yet developed

as an air-strip.

5. As the Subdivision developed with houses and

electric and phone equipment, the airplanes could not use

the Subdivision as an airstrip.

6. In 1967, Sheley and his friend, County Commis-

sioner Harry Harris (“Harris”), began to discuss the pos-

sibility of acquiring certain submerged property adjecent

to the Subdivision (the “Property”) from the Trustees of

the Internal Improvement Fund (“Trustees”) to construct

an airstrip so that the Monroe County (“County”) mo-

squito control planes could have an Upper Keys landing

site.

7. Sheley and Harris tentatively agreed that if

Sheley, the abutting upland owner of the “Property”,

acquired the Property he would at some future date

donate it to the County in consideration for the County’s

construction of a breakwater and north-south canal for

the Subdivision. The breakwater and canal were to be

built on some submerged land owned by Sheley and the

“Property” to be obtained from the “Trustees”.

App. 3

8. In accordance with this plan, Sheley, through Jim

Glass (“Glass”) who also served as Monroe County Engi-

neer, applied to the Trustees for title to the Property.

9. Jim Glass had no authority to encumber or con-

vey the Property on behalf of Sheley.

10. After several delays by the “Trustees”, and sev-

eral revisions of the application, including revision of the

bulkhead line so that it would not extend beyond the

rights of the adjacent property owners and revising the

price per acre from $300.00 to $414.15. The Trustees sold

the “Property” to Sheley by Deed which contained no

restrictions or reservations as to the Properties use.

11. The County learned through its consultant, that

it could not obtain funds for the breakwater and canal,

and the County abandoned the plan.

12. The County communicated its abandonment of

the plan to Sheley, through Harold Wilde (“Wilde”), its

airport consultant.

13. Sheley, under his plan with the County,

intended to construct a 100-foot-wide airstrip; however,

after the County abandoned the plan, Sheley spent more

than $400,000.00 to construct a 150-foot-wide breakwater,

which included a row of residential lots and a street.

14. Sheley paved the street which has become used

as the landing strip.

15. In 1970, Sheley’s trust expired and Kenneth

Bassett (“Bassett”) became trustee.

16. Sheley continued to develop and manage the

Property under a power of attorney from Bassett.

App. 4

17. In 1972, the County, pursuant to Sheley’s

request, platted the Property into residential lots and

zoned the Property for residential duplexes.

18. Also in connection with the platting, the County

accepted Sheley’s deed to certain lots which they now

claim, as a bond to assure completion of Subdivision

improvements.

19. Upon completion of the Subdivision improve-

ments, the County returned the deed to the lots to Sheley

without making any demands for dedication of the Prop-

erty to the County as an airstrip.

20. The County has collected taxes and levied solid

waste assessments on the Property as residential lots and

not as an airstrip.

21. New Port Largo, Inc., a Florida corporation

(“New Port Largo”), acquired the Property from Bassett

in September, 1979.

22. Although Charles Netter (“Netter”), an attorney,

one of the principals of New Port Largo, was advised that

the County had a claim against the Property, he checked

the title to the Property, including the abstract, the

Trustees deed, the platting, the taxes and assessments and

the zoning and determined that title was vested in

Bassett.

23. Stuart Marr (“Marr”), who is now the other

principal of New Port Largo, acquired an interest in the

corporation some time after the original contract for pur-

chase of the Property and before the closing.

24. Marr had, more than a year prior to becoming a

principal in New Port Largo, been involved as the broker

a

App. 5

on behalf of Mr. and Mrs. Joseph L. Sharit in the sale of

their Subdivision lot to Mr. and Mrs. Gerald Recob.

25. During the course of that closing, Marr had

heard about the County’s claim; however, he had not

studied Sharit’s documents and did not know of the

substance or details of the claim.

26. New Port Largo paid valuable consideration, to-

wit, more than Two Million Dollars ($2,000,000.00) for the

Property.

II. CONCLUSION OF LAW

1. The County has failed to establish an express

trust for the Property.

2. As with any contract, for a promise to donate

land in the future to be binding, there must be some legal

consideration passed. The Third DCA addressed this

issue in Kaufman v. Harder, 354 So. 2d 109 (3d DCA, 1978).

That case stands for the proposition that there can be no

indebtedness without legal consideration; and that a

mere gratuitous promise of a future gift, lacking consider-

ation, is unenforceable as a nudum pactum.

The consideration needed to make such an agreement

binding would be either some benefit to the promisor/

landowner or a detriment to the promisee/county. In the

case at bar, the landowner has received no benefit as a

result of his alleged promise to the county, because he

bought the land from a Third Party, the State, in a trans-

action that is separate from his alleged promise to the

County. Neither has there been a detriment to the prom-

isee/County, because they have not paid any money or

App. 6

any other consideration in return for the alleged promise.

Thus, applied to the Kaufman case, consideration is lack-

ing, and the landowner’s gratuitous promise can not be

enforced.

Failure to carry out a promise cannot in itself give

rise to a constructive trust. Consideration must be passed

between the parties for such a trust to be found. Leeper v.

Gorman, 128 So. 876 (Fla. 1930). As seems to be estab-

lished by the facts of the present case, the landowner

received no consideration in exchange for his alleged

promise.

More recently, the 3rd DCA, in Yawn v. Blackwell, 343

So.2d 906 (3rd DCA, 1977) found that for a constructive

trust to be imposed there must exist a situation between

parties involving fraud, undue influence, abuse of confi-

dence or mistake. To enforce a constructive trust in the

case at bar, under the requisites of Yawn, the Court would

have to find that a fraudulent representation by the land-

owner to the County was the actual cause of the State’s

sale of the land to said landowner. Such does not appear

to be the case, as the sale by the State was not condi-

tioned by any such future donation of land to the County.

When weighing the evidence of the existence of con-

sideration, or of any fraud or mistake to prove construc-

tive trusts, the standard as set by the 3rd DCA is that of

“clear and convincing” evidence. Hiestand v. Geier, 396 So.

2d 744 (3DCA, 1981).

3. The County has failed to establish fraud, breach

of fiduciary duty or any other inequity by Sheley or his

successors.

App. 7

4. The County has failed to prove that any enforce-

able contract to convey the Property existed between

Sheley and the County for the Property.

5. The County has failed to establish the basis for

imposition of a constructive trust.

6. Even if the County had produced clear and con-

vincing evidence sufficient to establish a constructive

trust, and it has not, the County, by platting, accepting

and returning deeds, taxing and assessing the Property is

equitably estopped to claim the Property from New Port

Largo.

7. The County, which is a political subdivision of

the State of Florida, is legally estopped to claim any right

in the Property or any limitation on the use of the Prop-

erty because it is bound by the unrestricted deed from the

Trustees to Sheley.

8. The County, which delayed almost 14 years to

assert a claim to the Property, is barred from relief under

the doctrine of laches.

9. New Port Largo is a bona fide purchaser for

value of the Property.

10. Since the rights of an innocent third party bona

fide purchaser for value have intervened, the County

cannot divest New Port Largo of title to the Property.

IT IS THEREUPON ORDERED AND ADJUDGED AS

FOLLOWS:

1. The final judgment is in favor of Defendant,

NEW PORT LARGO, INC., and against the Plaintiff,

App. 8

- MONROE COUNTY, a political subdivision of the State of

Florida.

2. The County shall take nothing by this action and

shall go forth hence without day.

3. The Court reserves jurisdiction to tax costs on

behalf of New Port Largo and against Monroe County.

DONE AND ORDERED in Chambers, at Monroe

County, State of Florida this 27 day of March, 1984.

/s/ Francis X. Knuck

FRANCIS X. KNUCK,

Circuit Judge

Copies to:

Walter S. Kyle, Esq.

Lucien C. Proby, Jr., Esq.

Joseph B. Allen, III, Esq.

Charles Netter, Esq.

Joe Creely, Esq.

Joe Sharit, Jr., Esq.

Mallory H. Horton, Esq.

Marsha G. Rydberg, Esq.

APPENDIX 2

App. 1

IN THE CIRCUIT COURT OF THE SIXTEENTH

JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN

AND FOR MONROE COUNTY, CIVIL ACTION

NEW PORT LARGO; INC. A

Florida Corporation,

Plaintiff,

CASE NO.

80-1164-CA-17

VS.

)

)

)

)

)

DON SCHLOSSER, CURTIS )

BLAIR GERALD HERNANDEZ, ?

JR., RICHARD KERR, and )

GEROGE DOLEZAL as the )

Board of Commissioners of )

Monroe County, Florida, and )

MONROE COUNTY, FLORIDA, ?

a political subdivision of the }

State of Florida,

)

Defendants.

FINAL SUMMARY JUDGMENT

This cause came on to be heard on the Motion for Sum-

mary Judgment of plaintiff, and the court hearing consid-

ered the argument of counsel for the respective parties

and the evidence of record, finds as follows:

1. This Court has jurisdiction over the parties and the

subject matter of this action.

2. The subject property compris[es] more than five acres

and the rezoning application is therefore a major devel-

opment and subject to the procedures of the Major Devel-

opment Project Ordinance (Chapter 6, Article VII, Monroe

County Ordinances).

3. Ordinance No. 14-1979, enacted by defendant, Mon-

roe County, on June 5, 1979, establishes a zoning district

App. 2

classification of private airport defining same in accor-

dance with the definition of private airport in Chapter

333.01, Florida Administrative Code. The only perrnitted

use in said zoning district is a private airport.

4. The airport located on the subject property, operated

by a lessee, was a public airport. The subject property

does not qualify by dimensions to met the requirements

as a public airport or a private airport.

5. Monroe County did not comply with the require-

ments of the Major Development Product Ordinance in

the rezoning.

6. During the year 1982 Monroe County filed suit to

establish ownership of the subject property, Case No.

82-432-CA-17, Monroe County Circuit Court. In 1984, the

Circuit Court denied the claim of the County, declaring

the property to be owned by plaintiff. The decision was

affirmed in Monrce County v. New Port Largo, Inc., 467

So.2d 757 (Fla. 3d DCA 1985). This rezoning of this prop-

erty, now determined to be private, to airport, would

deprive the owner of any reasonable use. However, the

Court finds that the county attempted the rezoning in

good faith inasmuch as it had an arguable claim at the

time of filing the application for rezoning.

Therefore, it is Ordered and Adjudged as follows:

A. The attempted rezoning of the subject prop-

erty to Private Airport is invalid and Resolution

No. 234-1980 is hereby quashed and said resolu-

tion is declared to be of no force and effect.

B. That final summary judgment is hereby

entered in favor of plaintiff.

App. 3

C. Costs of this action shall be taxed at a sub-

sequent hearing.

DONE AND ORD[E]RED in Chambers, Monroe County

Courthouse, Key West, Florida, this 2nd day of January,

1986.

/s/ M. Ignatius Lester

Circuit Judge

Conformed Copies Furnished To:

JOSEPH 8B. ALLEN, III, ESQ.

LUCIAN C. PROBY, Jr., ESQ.

COPIES OF THE ABOVE FINAL SUMMARY JUDGMENT

WERE HANDED OR MAILED TO ATTORNEYS OF

RECORD

ON 1/2/86

BY /s/ E. Gato

APPENDIX 3

App. 1

ASSIGNMENT

Stuart D. Marr, and Charles H. Netter, individually

and TFW, Inc. and First National Bank of South Miami, as

Trustee for Marr Land Trust 741 (“Assignors”) and each

of them, do hereby irrevocably assign to New Port Largo,

Inc., a Florida corporation (“Assignee”), any and all

claims, demands, and causes of action, if any, which each

has or may have against Monroe County, a political sub-

division of the State of Florida, arising out of or on

account of the activities of Monroe County as alleged in

Case No. 87-10043-CIV-KING, entitled New Port Largo,

Inc. v. Monroe County.

Assignors each ratify commencement and prosecu-

tion of the action by New Port Largo, Inc. Assignors

acknowledge that each is abandoning dominion and con-

trol over all rights assigned, but that, nonetheless, each

will be bound, by res judicata and otherwise, by the

results of the lawsuit obtained, whether at trial or by

settlement, by New Port Largo, Inc., without prejudice to

any rights to appeal.

Assignee for its part accepts the assignments and

agrees to prosecute the action diligently and to assert all

claims arising out of the pending complaint in the above-

cited lawsuit, whether the claim was Originally the claim

of it or any assignor.

All parties agree that any net proceeds of the lawsuit

shall be divided between the shareholders of assignee in

the proportion of his ownership of assignee.

App. 2

ASSIGNORS:

/s/ Stuart D. Marr,

Stuart D. Marr,

Individually

Before me appeared Stuart D. Marr, known to me to be

the above individual who signed the above in my pres-

ence on this 24th day of July, 1989.

/s/ Illegible

Notary Public

My Commission Expires:

NOTARY PUBLIC STATE OF FLORIDA

MY COMMISSION EXP. OCT. 5, 1990

BONDED THRU GENERAL INS. UND.

FIRST NATIONAL BANK OF

SOUTH MIAMI, as Trustee for

MARR LAND TRUST LT #741

By: /s/ John J. Murphy

JOHN J. MURPHY

VICE PRESIDENT

SR. TRUST OFFICER

as Trustee

Before me appeared John J. Murphy, known to me to

be the above individual, who signed the above in my

presence in the noted capacity, on this 24th day of July

1989, 1989.

/s/ Illegible

Notary Public

My Commission Expires

NOTARY PUBLIC STATE OF FLORIDA

MY COMMISSION EXP. JAN 25, 1992

BONDED THRU GENERAL INS. UND.

App. 3

TFW, INC.

By: /s/ Charles H. Netter,

Charles H. Netter,

Individually

BY: /s/ Charles H. Netter

Charles H. Netter, as

as President of T.F.W.,

Inc., a Florida corporation

Before me appeared Charles H. Netter, known to me

to be the above individual, who signed the above in my

presence in the noted capacity on this 24th day of July,

1989.

/s/ Illegible

Notary Public

My Commission Expires

NOTARY PUBLIC STATE OF FLORIDA

MY COMMISSION EXP. OCT. 5, 1990

BONDED THRU GENERAL INS. UND.

ASSIGNEE:

NEW PORT LARGO, INC.

BY: /s/ Stuart D. Marr

Stuart D. Marr,

President

BY: /s/ Charles H. Netter

Charles H. Netter,

Secretary Treasurer

Before me appeared Charles H. Netter and Stuart

Marr known to me to be the above individuals, who

App. 4

signed the above in my presence in the noted capacities,

on this 24th day of July, 1989.

/s/ \llegible

Notary Public

My Commission Expires:

NOTARY PUBLIC STATE OF FLORIDA

MY COMMISSION EXP. OCT. 9, 1990

BONDED THRU GENERAL INS. UND.

= ee eee. _ -< ee eee ee eee