IN THE SUPREME COURT OF FLORIDA JOSEPH R. REDNER, Petitioner, v. Supreme Court Case No.: SC03-1612 Lower Tribunal Case No.: 96-02652 CITY OF TAMPA, Respondent. PETITIONER S FIRST AMENDED JURISDICTIONAL BRIEF On Review from the District Court of Appeal, Second District, State of Florida Grayden M. Dough, Esquire Florida Bar No. 0469572 2605 West Kennedy Boulevard Tampa, Florida 33609 (813) 348-6363 Telephone (813) 348-3954 Facsimile Counsel for Petitioner
TABLE OF CONTENTS Table of Citations ii Statement of Case and Facts 1 Summary of the Argument 4 Jurisdictional Statement 5 Argument THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN DADE COUNTY v. GENERAL WATERWORKS CORPORATION, 267 So.2d 633 (Fla. 1972) 5 Conclusion 10 Certificate of Service 11 Certificate of Compliance 11
TABLE OF CITATIONS Cases City of Tampa v. Redner, 2003 WL 1566599 (2003) 7,8,10 City of Tampa v. Redner, 778 So.2d 288 (Fla. 2d DCA 2000) 1 Dade County v. General Waterworks Corporation, 267 So.2d 633 5, 7, 8 (Fla. 1972) 9,10 United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596 (1946) 6 Wheeler v. City of Pleasant Grove, 833 F.2d 267 (11 th Cir. 1987) 4, 6 Yuba Natural Resources v. United States, 904 F.2d 1577 (Fed. Cir. 1990) 6 Constitutional Provision Art. V, 3(b)(3) Fla. Const. (2002) 5 Art. X, 6, Fla. Const. (2002) 5, 7 Court Rules Rule 9.120, Florida Rules of Appellate Procedure 1 Rule 9030(a)(2)(A)(iv), Florida Rules of Appellate Procedure 5
JOSEPH R. REDNER, IN THE SUPREME COURT OF FLORIDA Petitioner, v. Supreme Court Case No.: SC03-1612 Lower Tribunal Case No.: 96-02652 CITY OF TAMPA, Respondent. / PETITIONER S FIRST AMENDED JURISDICTIONAL BRIEF Pursuant to Rule 9.120, Florida Rules of Appellate Procedure, Joseph R. Redner respectfully petitions the Court for Discretionary Review of the Second District Court of Appeals (2 nd DCA). STATEMENT OF THE CASE AND FACTS On November 9, 1999, the Circuit Court granted Summary Judgment for the Petitioner on the issues of Due Process. The City appealed the summary judgment and the 2 nd DCA affirmed the trial court s decision. See City of Tampa v. Redner, 778 So.2d 288 (Fla. 2d DCA 2000). On December 11, 2001, the Jury awarded Mr. Redner $439,256.13, for the loss of a leasehold interest and other damages. On March 28, 2003, the 2 nd DCA issued an opinion reversing and remanding a final judgment of the jury verdict, for in the words of the opinion, "the wrongful temporary taking of Redner's property right " The regulatory taking occurred when the City of Tampa,
through the intentional actions by City employees, wrongfully extinguished the very valuable right to sell alcoholic beverages on a property that had been "wet zoned" for several years. On August 8, 2003, the 2 nd DCA denied Redner s Motion for Rehearing En Banc. The factual background of this case involved a situation wherein the Petitioner foreclosed on an operating drinking establishment. As the 2 nd DCA opinion noted, Redner obtained title through a complicated series of business transactions, but the bottom line was that the day after Redner legally executed a Writ of Possession on the property, the displaced business operator, having been properly evicted from the business premises (with alcoholic beverages still on the bar therein), went to City officials and had the property "dried up." The City accepted the unique (and totally untruthful) representation from the evicted business operator that the business had ceased selling alcohol. Moreover, the City failed to verify the untruthful representation, clearly knowing that no sane person would purposely devalue his or her property by giving up "wet zoning." Redner, having foreclosed on the property with the intent of leasing the property to other alcoholic beverage facility operators, discovered the revocation only after a third party lessee, intent on leasing and operating the business premises as an alcoholic beverage facility, found out from the City that the property had been "dried up." Redner, in an attempt to correct the clearly unlawful and unjustified revocation of the wet zoning,
supplied voluminous materials to the City Attorney to prove that the representation of the property had "dried up" was an absolute falsification. The City ignored Redner's overwhelming evidence, and the litigation before the lower court ensued. The trial court judge, astounded that the City would not take remedial action after having been presented with such overwhelming evidence that the property had never been dry, granted summary judgment to Redner, finding that the revocation of the wet zoning, with no notice to Redner, and no opportunity to be heard on the issue, operated as a denial of due process and a regulatory taking. The trial court ultimately held a jury trial to determine Redner s damages for the loss of eight years of wet zoning. At the jury trial, it was established that, prior to the reversion, Redner was in the process of finalizing a lease for the subject property to continue to operate as an alcoholic beverage establishment. At trial, both Ms. Toni Derby, the Director of Operations for Mr. Redner s many businesses, and the Lessees authenticated the frustrated lease and established exactly what the rental lease payments would have been. The jury, properly instructed by the trial court, correctly weighed the value of the frustrated leasehold interest when they computed the damages and awarded Mr. Redner $439,256.13 for the taking. The 2 nd DCA March 28, 2003, Opinion focused on the City s argument that the jury instruction given by the trial court as to the measure of damages was inappropriate
and the trial court was incorrect in determining that Wheeler v. City of Pleasant Grove 835 F.2d 267 (11 th Cir. 1987) did not apply. SUMMARY OF THE ARGUMENT Redner acquired title to a thriving and going alcoholic beverage establishment with the intent of leasing the property. Through the wrongful actions by the City of Tampa, the lease was frustrated and, after failing to find a suitable replacement, Redner was compelled to convert the property into his administrative headquarters in order to mitigate his losses. At trial, and later affirmed by the 2 nd DCA, it was determined that a regulatory taking had occurred. A jury awarded Redner $493,256.15, in damages for the lost income from a leasehold interest. The City appealed to the 2 nd DCA, arguing that the trial court improperly instructed the jury on damages. The 2 nd DCA reversed and remanded the final judgment. The Court s opinion rejected the City s valuation method and substituted it with an unknown and precedent valuation method awarding Redner $10,000.00 in damages. The substituted valuation method is directly and expressly in conflict with the Florida Supreme Court in Dade County v. General Waterworks Corporation, 267 So.2d 633 (Fla. 1972). JURISDICTIONAL STATEMENT
The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the Supreme Court or another district court of appeal on the same point of law. See Art. V, 3(b)(3) Fla. Const. (2002); Rule 9030(a)(2)(A)(iv), Florida Rules of Appellate Procedure ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THIS COURT IN DADE COUNTY V. GENERAL WATERWORKS CORPORATION, 267 So.2d 633 (Fla. 1972) The District Court measured the value of property interest as the difference between the market value of the property with the wet zoning and the market value of the property without the wet zoning. This valuation did not take into account the frustration of a valuable lease that was rescinded due to the City s wrongful taking. The District Court s opinion relies on the Eleventh Circuit s decision in Wheeler v. City of Pleasant Grove, 835 F.2d 267, (11 th Cir. 1987) for determining proper amount of damages. Simply stated, the 2 nd DCA s reliance on the Wheeler case is misplaced. The majority opinion totally misapprehended Wheeler, and ultimately devised a formula for calculating damages which fails to recognize the actual evidence presented before the jury and does not, in the final analysis, even follow Wheeler's reasoning. The factual distinction between Wheeler and the instant appeal is dramatic.
Wheeler involved the prevention of the development of a parcel of property and any income derived from the future leases was found to be purely speculative. The instant appeal involves a going and thriving concern, which was taken by the City through an improper rezoning and procedurally improper revocation of a wet zoning of the subject property where the loss of income generated from the lease was certain. The total misapprehension of this issue by the majority is emphasized even more when considered with proper valuation methods ingrained within Florida's Real Property and Federal and United States Supreme Court precedent. See generally, United States v. Petty Motor Co., 327 U.S. 372 (1946), and Yuba Natural Resources v. United States, 904 F.2d 1577 (Fed. Cir. 1990). The 2 nd DCA failed to follow well settled Florida Supreme Court precedent and the formula relied upon by the District Court directly and expressly conflicts with the Florida Supreme Court holding in Dade County v. General Waterworks Corporation, 267 So.2d 633 (Fla. 1972). Specifically, the statement in the 2 nd DCA s Opinion that Redner is not entitled to lost income from a lease agreement that had been conditioned on the restoration of the wet zoning; to the costs he incurred for taxes, utilities, and insurance on the property during the temporary taking; or to engineering, architectural, and construction costs incurred remodeling the premises for his personal use as an office building, expressly and
directly conflicts with General Waterworks Corporation, on precisely the same fundamental rule of law on valuation of property subject to a taking. The fundamental principle is that a property owner is entitled to receive full compensation of the property interest lost. In General Waterworks Corporation, the Supreme Court considered whether a private utilities contributed property, that is property installed by a developer during the construction and deeded to the utility allowing a property owner access to the service provided by the utility, should be considered as part of the valuation in an eminent domain proceeding. This Court agreed with the trial judge and held As the property donated the water company now belongs to it, the water company is, of course entitled to have this property valued in this proceeding. Id. at 640 (emphasis supplied). The 2 nd DCA contradicts this rule by not taking into account the value of the leasehold property interest taken from the Petitioner by the City, and as such, the Petitioner was not fully compensated for the loss of the property interest. The 2 nd DCA measure of value essentially is a market value approach of same property with and without the wet zoning. This does not follow with the reasoning and holding of this Court as the proper value of property where it was held: Even fair market value as an overriding compensation standard has been rejected by the Florida Courts on those occasions where it has not led to an accurate determination of full compensation. Id. at 641 (emphasis supplied).
The majority opinion does not accurately reflect the amount of damages incurred by the Petitioner. By neglecting to include the leasehold, an accurate valuation of the property was not assessed by the District Court and the Petitioner did not receive full compensation for the loss; and is expressly and directly contradicting this courts holding in General Waterworks. The 2 nd DCA s decision, as clearly identified by Judge Green in his dissent, "comes up with a artificial method for determining the reduction in the income producing potential." See City of Tampa v. Redner, 2003 WL 1566599 (2003). Despite the fact the 2 nd DCA invented an unknown property valuation, the majority opinion violates the spirit of the Florida Supreme Court holding which mandates that damages must reflect an accurate determination of full compensation of what the property owner lost. See General Waterworks Corporation at 641. The "formula" devised by the 2 nd DCA, while approaching the "market value" formula, does not follow General Waterworks when this Court clearly stated: Whatever method is ultimately chosen (for fixing the full compensation to be awarded for land being condemned), the litigants and trial court should bear in mind that the objective is full compensation to the property owners and that all valuation methods are only tools to this end. Id. at 267 So.2d 633, 641 (emphasis supplied). The valuation method conceived by the 2 nd DCA does not take into account Redner s investment backed expectations when he acquired the property, thereby,
applying an improper valuation method that does not award the Petitioner full compensation. The 2 nd DCA s opinion also fails to consider the unique facts of the instant appeal. In General Waterworks Corporation, this Court held the conclusion to be drawn is simply that the proper valuation method or methods for any given case are inextricably bound up with the particular circumstances of the case. Id. at 639 (emphasis supplied). By not considering the unique facts in this case, the 2 nd DCA s decision failed to make accurate determination of the value of the property lost and erroneously denying the Petitioner full compensation. CONCLUSION The 2 nd DCA did not consider the unique facts of this instant appeal thereby rendering an inaccurate determination of the property interest lost resulting in a valuation method that does not fulfill the objective that a property owner must receive full compensation, thus the opinion is directly and expressly in conflict with this courts holding in Dade County v. General Waterworks Company, 267 So.2d 633 (Fla. 1973). If the 2 nd DCA s opinion in the instant appeal were allowed to stand it would seriously undermine a property owner s right to have their property properly valued when the government takes their property. The Florida Constitution, along with General Waterworks Company, maintains the simple principal that a property owner is entitled to be put in the same place as if the taking had not occurred. The Petitioner
respectfully submits that this Court grants discretionary review and resolve the conflict by quashing the decision of the 2 nd DCA in the City of Tampa v. Redner, 2003 WL 1566599 (2003). Respectfully submitted, Grayden M. Dough, Esquire Florida Bar No. 469572 2605 W. Kennedy Boulevard Tampa, Florida 33609 Telephone: 813-348-6363 Facsimile: 813-348-3954 Counsel for Petitioner CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail to Jerry Gewirtz, Esquire, Assistant City Attorney, 5 th Floor City Hall, 315 E. Kennedy Boulevard, Tampa, Florida 33602, on this 12 th day of September, 2003. Grayden M. Dough, Esquire Florida Bar No. 469572 CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this petition complies with the font requirements of rule 9.100(1) of the Florida Rules of Appellate Procedure containing 2,134 words. Grayden M. Dough, Esquire Florida Bar No. 469572 EXHIBIT A Conformed copy of Second District Court of Appeals Opinion filed on March 28, 2003
EXHIBIT B Conformed copy of Second District Court of Appeals Order Denying Appellee s Motion for Rehearing and Motion for Rehearing En Banc filed on August 8, 2003