IN THE SUPREME COURT STATE OF FLORIDA STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, Petitioner, v. CASE NO. SC01-193 FARRIS G. MILLENDER, aka FARRIS GENE MILLENDER and MARGARET E. MILLENDER and FARRIS V. MILLENDER and MILLENDER & SONS SEAFOOD COMPANY, INC., Respondents. / REPLY BRIEF OF PETITIONER, STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION ON REVIEW OF A CERTIFIED QUESTION FROM THE FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA CASE NO. 1D99-4379 Pamela S. Leslie General Counsel GREGORY G. COSTAS Assistant General Counsel FLORIDA BAR NO. 210285 Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 (850) 414-5265
TABLE OF CONTENTS i PAGE TABLE OF AUTHORITIES...ii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE AND FACTS... 1 ARGUMENT ISSUE I THE LOWER COURT ERRONEOUSLY CONCLUDED THAT THE DICKINSON STABILIZATION DOCTRINE OPERATED TO ALLOW THE MILLENDERS' TO PURSUE THEIR ACTION FOR INVERSE CONDEMNATION AND INJUNCTIVE RELIEF WHICH OTHERWISE WOULD HAVE BEEN BARRED BY THE STATUTE OF LIMITATIONS.... 4 B. The First DCA's Conclusion That The Statute Of Limitations For Bringing An Inverse Condemnation Action, Grounded Upon The Department's 1975 Realignment Of The Carrabelle River Channel, Did Not Commence Until The Millenders Were Required To Remove Their Seawall In 1993 Was Based Upon An Erroneous Application Of The Dickinson Stabilization Doctrine.... 4 ISSUE II THE LOWER COURT ERRONEOUSLY CONCLUDED THAT THE MILLENDERS HAD A VIABLE CLAIM FOR INJUNCTIVE RELIEF THAT WAS NOT BARRED BY THE STATUTE OF LIMITATIONS BY VIRTUE OF THE OPERATION OF THE CONTINUING TORT DOCTRINE....11 CONCLUSION...15 CERTIFICATE OF SERVICE...16
CERTIFICATE OF TYPEFACE COMPLIANCE...16 TABLE OF AUTHORITIES CASES PAGE Amjad Munim, M.D., P.A. v. Azar, 648 So. 2d 145 (Fla. 4th DCA 1994)...2, 8 Applegate v. United States, 25 F.3d 1579 (Fed. Cir. 1994)...5, 6 Boling v. United States, 220 F.3d 1365 (Fed. Cir. 2000)...7, 9, 14 Department of Transp. v. Burnette, 384 So. 2d 916 (Fla. 1st DCA 1980)...12 Halkey-Roberts Corp. v. Mackal, 641 So. 2d 445 (Fla. 2d DCA 1994)...13 In Re Adoption of Baby E.A.W., 658 So. 2d 961 (Fla. 1995)... 8 Lawrence v. Eastern Air Lines, 81 So. 2d 632 (Fla. 1955)...14 Millender v. State DOT, 774 So. 2d 767 (Fla. 1st DCA 2000)...13 Nadler Foundry and Machine Company, Inc. v. United States, 164 F.Supp. 249 (Ct.Cl. 1958)... 7 Palm Beach County v. Tessler, 538 So. 2d 846 (Fla. 1989)... 8 Pearson v. Ford Motor Company, 694 So. 2d 61 (Fla. 1st DCA 1997)...13 State v. Jones, 204 So. 2d 515 (Fla. 1967)...11 Town of Miami Springs v. Lawrence, ii
102 So. 2d 143 (Fla. 1958)...13, 14 United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947)... 4-7, 10 PRELIMINARY STATEMENT Ferris G. Millender a/k/a Ferris Gene Millender and Margaret E. Millender, his wife, Ferris V. Millender, and Millender & Sons Seafood Company, Inc., the plaintiffs/appellants below and respondents here, will be referred to collectively as the Millenders. The Florida Department of Transportation, the defendant/appellee below and petitioner here, will be referred to as the Department. Citations to the record on appeal will be indicated parenthetically as R with the appropriate volume and page number(s). Citations to the Millenders' brief on the merits will be indicated parenthetically as "RB" with the appropriate page number(s). STATEMENT OF THE CASE AND FACTS Although the Department intends to rely upon its Statement of the Case and Facts, there are some aspects of the Millenders' Statement of the Case and Facts the Department finds itself compelled to address. First, at two points the Millenders suggest that they are 1
entitled to a "fair reading" of the record as a basis for urging acceptance of their view of the evidence. (RB 2, 4) Inasmuch as the Department is the party who prevailed below in the nonjury proceeding, the reviewing Court must disregard conflicting evidence and accept the facts in evidence which are most favorable to the Department. Amjad Munim, M.D., P.A. v. Azar, 648 So. 2d 145, 148-149 (Fla. 4th DCA 1994). Next, the Millenders state: Except for the damage admittedly caused by hurricane Elena in 1985, the record does not show that Millender experienced any significant damage until the seawall was removed. Even if the hurricane damage could somehow be attributed to DOT, the undisputed testimony demonstrates that the damage from hurricane Elena was repaired. [TR 41-2 and 83]. It is similarly undisputed that Millender's buildings did not sustain any significant permanent damage from erosion until the seawall was removed in 1993. [TR 83-6]. Before that time, the only damage possibly attributable to the erosion were cracks in the foundations. (RB 2-3) The Millenders have evidently overlooked their own testimony that they began having trouble with their buildings after 1975 (RVII 27); that they first noticed the erosion after the bridge was built in 1975 (RVII 43); that when Ferris Vance Millender returned from the service in 1977, it was obvious to him that the erosion was a lot different than it was when he left (RVII 79, 80); that when there were heavy tides or storms 2
or the like [i]t would really take a lot of our property (RVII 80); and that he [Ferris Vance Millender] started seeing a lot of cracks in the foundations of the buildings in the late 70's and early 80's. (RVII 80) Finally, the Millenders suggest that a "fair reading" of Ferris Millender's deposition indicates that he did not specify when the seawall constructed after the 1985-1986 hurricane began falling. (RB 4) There is no dispute that the seawall was constructed after the hurricane. Mr. Millender testified that it took one year to construct it (RI 53), which would have put the completion date at some point in 1986-1987. The seawall was removed in 1993. (RVII 83) The following testimony from Mr. Millender's deposition shows that the seawall was in fact failing prior to its removal: Q -- and y'all had all that administrative litigation about that. Now, you were asked some about how it turned out. Do you know whether or not at one time the DNR of the Cabinet of the State of Florida said that you could leave the sea wall where it was on the payment of $90,000? A Yes, sir. Q And to -- I think Coastal Erosion Zone or something. Some fund that they have. By that time, was the sea wall 3
already caving in? A Yes. It started -- well, it didn't hold on. Let's put it that way. Q Yeah. It had already started -- erosion had caused the sea wall to start leaning, and there was -- what I call doodlebug holes in the -- A Right. Q -- material that was behind the sea wall -- the compaction material. It had already started -- holes just started appearing behind it. A (Nodding head.) Q And then I think we talked and it was -- a decision was made, there's no sense paying $90,000 for something that's -- A Q A That's right. -- getting washed away anyhow. They were going away. (RI 184-185) ARGUMENT ISSUE I THE LOWER COURT ERRONEOUSLY CONCLUDED THAT THE DICKINSON STABILIZATION DOCTRINE OPERATED TO ALLOW THE MILLENDERS' TO PURSUE THEIR ACTION FOR INVERSE CONDEMNATION AND INJUNCTIVE RELIEF WHICH OTHERWISE WOULD HAVE BEEN BARRED BY THE STATUTE OF LIMITATIONS. 4
B. The First DCA's Conclusion That The Statute Of Limitations For Bringing An Inverse Condemnation Action, Grounded Upon The Department's 1975 Realignment Of The Carrabelle River Channel, Did Not Commence Until The Millenders Were Required To Remove Their Seawall In 1993 Was Based Upon An Erroneous Application Of The Dickinson Stabilization Doctrine. The Millenders look to the Federal Circuit's decision in Applegate v. United States, 25 F.3d 1579, 1581-1582 (Fed. Cir. 1994), for its application of the Dickinson 1 stabilization doctrine in a coastal erosion case. (RB 10-11) Although they correctly observe that the court employed the Dickinson stabilization doctrine to allow a claim brought in 1992 to proceed even though the construction generating the claim occurred in 1952 (RB 10-11), they mistakenly assert that the government's unfulfilled promises of construction of a sand transfer plant were a "separate ground for reversal." (RB 11) As early as 1962, funds had been authorized for the construction of a sand transfer plant which was intended to restore the littoral flow of sand interrupted by the 1 United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947). 5
government s 1952 construction activities. Applegate at 25 F.3d 1580. Thus it was believed that the erosion would end and the beaches would be restored. Id. Following 1962, a number of delays occurred regarding the plant with the latest proposal for a facility coming in 1988. Id. The landowners brought suit in 1992. Rather than a separate ground for reversal, the unfulfilled promises of a sand transfer plant, in large part, drove the court s application of Dickinson as a basis to reject the government s statute of limitations defense as the following excerpts from the decision demonstrate: With promises of a sand transfer plant renewed as recently as 1988, the landowners did not know when or if their land would be permanently destroyed...with plans for a sand transfer plant pending, the landowners had no way to determine the extent, if any, of the permanent physical occupation. * * * Here again, uncertainty has stayed accrual of the claim. The Government s promises to restore the littoral flow destroyed any predictability of the extent of damage to the land. The Dickinson doctrine protected the landowners from the risks involved in bringing a suit for a taking prior to stabilization. Thus, due to both the very gradual nature of this particular continuous physical process and the Corps promises to 6
restore the littoral flow of sand, this taking situation had not stabilized by 1986 six years before the landowners filed suit. The statute of limitations does not bar this action. [Emphasis added] Id. at 1582-1583. The absence of any such promises by the Department in this case renders Applegate wholly inapposite to the case at bar insofar as the Millenders would rely upon the decision to urge application of the Dickinson stabilization doctrine here. In any event, the primary thrust of the Millenders' argument on this point is their dogged insistence that the Department has taken the position that mere notice of erosion commenced the running of the statute of limitations in this case. (See RB 13, 14, 16, 17) It never has been, and is not now, the Department's position that mere notice of erosion would trigger the running of the limitations period. Instead, as the Department stated at page fourteen of its brief on the merits, "[w]here governmental action has set in motion gradual and/or progressive damage to real property, the statute of limitations for bringing an inverse condemnation action will not begin to run, under either system's [state or federal] analysis, until the landowner is on notice of the permanent nature of the taking." [Emphasis added] Here, as the trial judge found, the Millenders were on 7
notice of the erosion of their property in 1975 and took steps to control it. The Millenders had certainly recognized that if they did not attempt to control the erosion, their property would continue to wash away. At that point, the Millenders were clearly on notice of, and appreciated the permanent nature of the taking. Under Dickinson, Boling v. United States, 220 F.3d 1365, 1370 (Fed. Cir. 2000), and Nadler Foundry and Machine Company, Inc. v. United States, 164 F.Supp. 249 (Ct.Cl. 1958), the statute of limitations in this case began to run more than four years prior to the time the Millenders filed their action. In an attempt to avoid this conclusion, the Millenders claim that the Department, through its own witnesses, proved that the property did not visibly erode between 1965 and 1991 (RB 13-14), and repeatedly contend that the record is devoid of proof that there was substantial permanent damage to their property prior to 1993, when the seawall was removed. (RB 13, 14, 15) The first flaw in the Millenders' argument lies in the fact that the trial judge, by virtue of his finding that the realignment of the channel caused erosion of the Millenders' property in 1975, necessarily accepted the Millenders' testimony concerning the erosion damage to their property and rejected the testimony of the Department's experts which was put on to establish the contrary. As the trier of fact, it was the trial 8
judge's duty to resolve these evidentiary conflicts. Palm Beach County v. Tessler, 538 So. 2d 846, 850 (Fla. 1989). He did so and his action in this regard cannot properly be revisited on appeal. See In Re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995). Second, when this Court, as it must, disregards the conflicting testimony on the erosion of the Millenders' property and views the evidence in the light most favorable to the Department, Amjad Munim, M.D., P.A. v. Azar, supra, the record conclusively demonstrates that the Millenders knew, or should have known, that the erosion resulting from the realignment of the channel effected a permanent taking of their property, if not in 1975, then at least well before their seawall was constructed after the 1985-1986 hurricane. Ferris Gene Millender testified that after the channel was moved, they tried to stabilize the erosion with oyster shells and bridge rubble (RVII 26); that they began having trouble with their buildings after 1975 (RVII 27); and that they first noticed the erosion after the bridge was built in 1975. (RVII 43) Mr. Millender's deposition testimony also revealed that their seawall, constructed after the hurricane in 1985-86, was failing prior to the time DNR ordered its removal. (RI 184-185) Additionally, Ferris Vance Millender indicated that when he 9
returned from the service in 1977, it was obvious that the erosion was a lot different than it was when he left (RVII 79, 80); that when there were heavy tides or storms or the like [i]t would really take a lot of our property (RVII 80); and that he started seeing a lot of cracks in the foundations of the buildings in the late 70's and early 80's. (RVII 80) The Millenders cannot be heard to seriously suggest that they "lost no substantial property until the seawall was removed in 1993." (RB 15) The Millenders contend that "DOT gives little weight to that part of Boling reversing the trial courts [sic] determination that any erosion triggered running of the statute of limitations and directing the trial court to determine when 'the environmental damage has made such substantial inroads into the property that the permanent nature of the taking is evident and the extent of the damage was foreseeable.'" (RB 16) Once again the Millenders are mistaken. At page 25 of its brief on the merits the Department noted that the trial court's holding that the claim stabilizes once any small portion of land has been taken fared no better than the position taken by the landowners. The Department then extensively quoted the Boling court's reasoning which lead to its ultimate holding that the takings claims in that case accrued when the erosion had substantially 10
encroached the parcels at issue and the damages were reasonably foreseeable. The Department then applied that holding to the case at bar arguing: Under Boling and its application of Dickinson, it is readily apparent that the First DCA erroneously grounded its analysis upon what it viewed as the ultimate frustration of the Millenders' efforts to protect their property from erosion rather than the point in time the Millenders knew, or should have known, that the Department's action had resulted in a permanent taking of their property. In an undisputed finding of fact, the trial judge found that the Millenders were first put on notice of the erosion in 1975 when they "went to the bridge construction site and picked up some of the old concrete and pilings and started shoring up its [sic] shoreline to prevent further erosion." (RVI 806-807; A 6-7) At that point in time the Millenders knew the land had suffered erosion damage, the permanent nature of the taking was evident, and the extent of the damage was reasonably foreseeable. (Department's brief on the merits, pp. 26-27) Persisting in their misapprehension of the Department's position, the Millenders suggest that the Department is seeking to escape liability for the taking through the employment of a strict construction of the statute of limitations. (RB 21) Rather than a strict construction of the statute of limitations, the Department is relying upon the proper application of the Dickinson stabilization doctrine to demonstrate the error permeating the lower court's analysis which was grounded upon 11
what it viewed as the ultimate frustration of the Millenders' efforts to protect their property from erosion. Finally, the Millenders look to an opinion authored by Justice Terrell and quote a passage, rich in colorful imagery and thought provoking metaphor, as a basis for their not so subtle suggestion that the Department has been less than square and generous in its dealings with them. (RB 22-23) The Millenders, who slept upon their rights for almost twenty years, would do well to bear in mind that the government is also entitled to fair dealing. As Mr. Justice Cardozo once observed in a criminal proceeding: But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true. State v. Jones, 204 So. 2d 515, 519 (Fla. 1967). ISSUE II THE LOWER COURT ERRONEOUSLY CONCLUDED THAT THE MILLENDERS HAD A VIABLE CLAIM FOR INJUNCTIVE RELIEF THAT WAS NOT BARRED BY THE STATUTE OF LIMITATIONS BY VIRTUE OF THE OPERATION OF THE CONTINUING TORT DOCTRINE. The Millenders correctly concede that their claim for injunctive relief is moot. (RB 23) In light of this fact, the lower court's employment of the continuing tort doctrine to 12
reverse the cause so that the Millenders could pursue this claim is erroneous and must be set aside. Notwithstanding their concession, the Millenders contend that the lower court's opinion can be read as properly applying the continuing tort doctrine to their inverse claim. Specifically, they argue: But in the second part of the opinion, the court holds that because the taking of the Millender's [sic] property is occasioned by a continuing tort, the repetitive erosion of Millender's property at every ebb tide, that Millender's claim for compensation would not be completely barred because almost all of the erosion and damage occurred after 1993 when Millender's buildings started falling into the Carrabelle River. The court cited Halkey- Roberts Corp. v. Mackal, 641 So. 2d 445 (Fla. 2d DCA 1994) for the proposition that granting a dismissal for all of the damage suffered by Millender would be error because DOT continued to erode the property up to the date of the filing of the action. (RB 24) Conspicuously absent from the above-quoted language is any citation to the lower court's opinion from which the "holding" and "proposition" are purportedly drawn. This not surprising inasmuch as the portion of the lower court's opinion speaking to the operation of the continuing tort doctrine does not contain language even closely approximating the quoted language. Immediately after its discussion of Department of Transp. v. Burnette, 384 So. 2d 916 (Fla. 1st DCA 13
1980), the remainder of the court's opinion dealing with the continuing tort doctrine was the following: This language means that the continuing tort against Millender may be redressed by way of injunctive relief. We know furthermore that the statute of limitations, in a continuing tort action, runs from the time of the last tortious act. Halkey-Roberts Corp. v. Mackal, 641 So. 2d 445 (Fla. 2d DCA 1994)("We also note that the granting of summary judgment as to counts I and II in their entirety was error because several of the complained-of acts are alleged to have occurred within four years preceding the filing of the complaint."), cited with approval in Pearson v. Ford Motor Co., 694 So.2d 61 (Fla. 1st DCA 1997). Millender's action is thus timely. Millender v. State DOT, 774 So. 2d 767, 769 (Fla. 1st DCA 2000). The First DCA did not apply the continuing tort doctrine to the Millenders' inverse condemnation claim. Even if the opinion can be read as applying the continuous tort doctrine to the inverse claim, the decision is still in error and must be reversed. The application of the doctrine is a question of fact for the trier of fact. Pearson v. Ford Motor Company, 694 So. 2d 61, 67-68 (Fla. 1st DCA 1997); Halkey- Roberts Corp. v. Mackal, 641 So. 2d 445, 447 (Fla. 2d DCA 1994). Here, as the Department argued in its brief on the merits (pp. 32-33), the lower court did not set aside any finding of fact 14
made by the trial judge and impermissibly substituted its position on a factual matter for that of the finder of fact. The Millenders have not effectively disputed much less addressed this contention. As a final point, the Department takes issue with the Millenders' reliance upon Town of Miami Springs v. Lawrence, 102 So. 2d 143 (Fla. 1958), in support of their argument that the Boling court's reasoning underlying its refusal to apply the continuing claims doctrine to an erosion case should not be followed here. (RB 26-28) Citing to page 146 of the Lawrence opinion, the Millenders claim that "[t]his Court stated fortythree years ago that a cause of action for inverse condemnation accrues only after the taking becomes permanent." (RB 27) Lawrence did not arise from an inverse condemnation claim alleging a taking without full compensation. Lawrence was a flooding case where the aggrieved landowners were seeking damages from the City for negligent acts which exacerbated flooding problems alleged to have been caused by a private entity. 2 In its disposition of the matter this Court recognized the general rule provides that if the injury is permanent, or if the causative structure or condition is of such a character that 2 For a detailed description of the complaint See Lawrence v. Eastern Air Lines, 81 So. 2d 632, 633-634 (Fla. 1955). 15
injury will inevitably result and the amount of the damage can be determined or estimated, a single action may and should be brought for the entire damages, both past and prospective. Lawrence at 102 So. 2d 146. But, the Lawrence Court did not apply the general rule because the flooding of the plaintiffs' land, unlike the erosion of the Millenders' property, did not have the characteristics of permanency sufficient to require the bringing of a single action for both past and prospective damages. Id. Lawrence does not compel application of the continuing tort doctrine to the Millenders' inverse condemnation claim. CONCLUSION Based upon the argument advanced and the authority cited herein and in the Department's brief on the merits, the First DCA's decision should be quashed and the final judgment affirmed. Respectfully submitted, GREGORY G. COSTAS Assistant General Counsel FLORIDA BAR NO. 210285 Department of Transportation Haydon Burns Building 16
605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Phone: 850-414-5265 Fax: 850-488-4412 17
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by United States Mail on this day of May, 2001, to BROWARD TAFF, JR., ESQUIRE, counsel for Respondents, 322 McDaniel Street, Tallahassee, Florida 32303. GREGORY G. COSTAS CERTIFICATE OF TYPEFACE COMPLIANCE I HEREBY CERTIFY that the foregoing has been prepared using Courier New 12 point font. GREGORY G. COSTAS 18