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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 964

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0674%3A3. Public record. Not legal advice.