The City of Riviera Beach v. Gray

• Decision Date: 19 August 2011
• Docket Number: No. 10–10695.,10–10695.
• Parties: The CITY OF RIVIERA BEACH, Plaintiff–Appellee,v.THAT CERTAIN UNNAMED GRAY, TWO–STORY VESSEL APPROXIMATELY FIFTY–SEVEN FEET IN LENGTH, her engines, tackle, apparel, furniture, equipment and all other necessaries appertaining and belonging in rem, Defendant,Fane Lozman, Claimant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

649 F.3d 1259

2011 A.M.C. 2891

23 Fla. L. Weekly Fed. C 290

The CITY OF RIVIERA BEACH, Plaintiff–Appellee,

v.THAT CERTAIN UNNAMED GRAY, TWO–STORY VESSEL APPROXIMATELY FIFTY–SEVEN FEET IN LENGTH, her engines, tackle, apparel, furniture, equipment and all other necessaries appertaining and belonging in rem, Defendant,Fane Lozman, Claimant–Appellant.

No. 10–10695.

United States Court of Appeals, Eleventh Circuit.

Aug. 19, 2011.

Robert P. Birthisel, Michael J. Bradford, Jonah Maurice Levine, Jules Victor Massee, Hamilton, Miller & Birthisel, LLP, Tampa, FL, Michael John Dono, Hamilton, Miller & Birthisel, LLP, Miami, FL, for Plaintiff–Appellee.Philip J. Nathanson, The Nathanson Law Firm, Chicago, IL, for Claimant–Appellant.Appeal from the United States District Court for the Southern District of Florida.Before EDMONDSON and MARCUS, Circuit Judges, and FAWSETT,^* District Judge.

MARCUS, Circuit Judge:

Claimant–Appellant Fane Lozman appeals the district court's entry of an order of partial summary judgment and, following a two-day bench trial, an order of final judgment for Plaintiff–Appellee City of Riviera Beach (“City”) in an in rem proceeding against Defendant Unnamed Gray, Two–Story Vessel Approximately Fifty–Seven Feet in Length (“Defendant”). The City filed a complaint in admiralty against the Defendant, first, claiming that the Defendant committed the maritime tort of trespass, because the Defendant remained at the City marina after the City explicitly revoked its consent, and second, seeking to foreclose its maritime lien for necessaries (unpaid dockage provided to the Defendant by the City). On partial summary judgment, the district court concluded that it had admiralty jurisdiction over the Defendant because the Defendant was indeed a “vessel” under 1 U.S.C. § 3, and that the Defendant was liable for maritime trespass.¹ After a bench trial, the district court determined that the trespass gave rise to nominal damages of $1 and that the Defendant owed the City approximately $3,000 under the maritime lien. After thorough review, we AFFIRM the judgments of the district court in all respects.

I.

The relevant facts are these. Lozman purchased the Defendant vessel in 2002. After purchasing the Defendant, Lozman had it towed from a location near Fort Myers, Florida to North Beach Village, Florida, a distance of at least 200 miles. In North Bay Village, Lozman lived in the Defendant from the time of purchase until Hurricane Wilma struck in late 2005.² Lozman had the Defendant towed to the City marina in March 2006, where he continued to use the Defendant as his primary residence until its arrest in April 2009.

The City owns and operates a municipal marina on the Atlantic Intracoastal Waterway. The marina provides wet and dry storage for approximately 510 vessels, both commercial and recreational. The marina leases slips to vessels on both a monthly basis and at a higher daily transient rate. On March 10, 2006, Lozman and the City marina entered into a “Wet–Slip or Dry Storage Agreement” (the “Agreement”). It called for Lozman to pay a monthly dockage fee of $1,174.48 by the first of each month, and dockage was provided on a month to month basis. It is undisputed that Lozman paid the entire monthly dockage fee for the month of March 2006, although he arrived at the marina some time in the middle of the month.

Conflict—indeed, litigious conflict—between the City and Lozman erupted shortly after Lozman's arrival. According to Lozman, on May 10, 2006, one day before then-Governor Jeb Bush signed an anti-eminent domain bill, the City entered into an agreement with a private developer for the redevelopment of the marina. Seeking to scuttle the redevelopment agreement, Lozman filed suit in Palm Beach County Circuit Court, alleging that the City's May 10, 2006 meeting with the developer violated the Florida Sunshine Law, Fla. Stat. § 286.011, because the public was only given one day's notice of the meeting. While it is not clear from the record how that lawsuit was resolved, the redevelopment plan was ultimately postponed or abandoned, a result for which Lozman takes credit.

On August 9, 2006, the City issued Lozman a notice of eviction from the marina, and subsequently filed an eviction suit also in the Circuit Court for Palm Beach County. The City's purported reasons for the eviction were that Lozman had failed to muzzle his ten-pound dachshund and had used unlicensed repair persons to perform work on the Defendant. In the eviction proceedings, the City argued on summary judgment that the Agreement between Lozman and the City established a nonresidential tenancy under Florida law. The Circuit Court agreed that the Agreement established a nonresidential tenancy under Florida law and was therefore governed by Florida's landlord-tenant statute. The court, however, denied the City's motion for summary judgment because Lozman had raised an issue of material fact as to whether the eviction was improper retaliation for his opposition to the redevelopment plan. On March 2, 2007, after a three-day trial, a jury returned a verdict in Lozman's favor, finding that Lozman's protected speech was a substantial or motivating factor in the City's attempt to terminate the lease, and that the attempted termination would not have occurred absent the protected speech. Lozman continued to pay the monthly dockage fee throughout the proceedings, and remained at the marina.

On June 14, 2007, a few months after Lozman's state court victory, the Riviera Beach City Council unanimously passed a resolution adopting a revised dockage agreement and accompanying Marina Rules & Regulations. The revised agreement and rules and regulations require all vessels docked at the marina and their owners to: (1) secure and maintain liability insurance to specified limits and name the marina as an additional insured; (2) show proof of valid registration or documentation; (3) be operational and capable of vacating the marina in case of an emergency; and (4) comply with the Florida Clean Vessel Act, Fla. Stat. § 327.53, which, among other things, prohibits owners of vessels or floating structures from discharging raw sewage into Florida waters.

The City marina sent numerous letters to all marina residents and customers describing the new requirements. On or about July 25, 2007, the marina sent its initial notice of the new requirements and provided residents and customers with the revised dockage agreement to be executed by September 30, 2007. The marina sent customers an additional letter on November 13, 2007, further describing the new insurance requirements. On January 25, 2008, the marina sent Lozman a letter repeating the new insurance requirements and listing deficiencies in his and the Defendant's compliance with the marina's new rules and regulations. Specifically, the letter informed Lozman that he needed to sign a revised dockage agreement, that he lacked sufficient insurance coverage for the Defendant, and that he needed to provide insurance and registration documentation to the marina. Two months later, the marina performed an assessment of the vessels' compliance with the City resolution, and determined that seventeen vessels docked at the marina, including the Defendant, were not in compliance.³ On April 22, 2008, the marina sent Lozman a letter informing him that he had missed the deadline to execute a new agreement and procedures to enforce the City's rights would be implemented against the Defendant.

Lozman claims that he never received these letters. He does not dispute, however, that he received a letter from the marina dated March 6, 2009, which provided final notice of the marina's revocation of permission for the Defendant to remain at the marina unless (1) Lozman brought the Defendant into compliance with the City resolution's new requirements, (2) Lozman paid the outstanding balance on the account, and (3) Lozman executed the revised dockage agreement. The letter stated that “[s]hould your vessel remain and you fail to pay your account in full, execute the ‘Marina Dockage Agreement,’ and otherwise bring your vessel into compliance with the Agreement's provisions by April 1, 2009, the City will promptly institute legal proceedings against you and your vessel for trespass and to foreclose the City's lien on your vessel.” It is undisputed that Lozman never executed the new agreement and that the Defendant remained at the marina after April 1, 2009.

Accordingly, on April 20, 2009, the City filed a two-count verified complaint in admiralty against the Defendant to foreclose its maritime liens for “necessaries” (dockage provided by the City marina to the Defendant), under 46 U.S.C. § 31342,⁴ and for trespass. The United States District Court for the Southern District of Florida issued a warrant for the arrest of the Defendant under Supplemental Rule C for Certain Maritime and Admiralty Claims, which provides, in relevant part, that “[i]f the conditions for an in rem action appear to exist, the court must issue an order directing the clerk to issue a warrant for the arrest of the vessel or other property that is the subject of the action.” Fed.R.Civ.P. Supp. Rule C(3)(a)(i). On the afternoon of April 20, 2009, the United States Marshal arrested the Defendant, and had it towed from the City marina to Miami, Florida, a distance of approximately eighty miles. The next day, Lozman filed, pro se,⁵ an emergency motion to dismiss the complaint and return the Defendant to the marina. After a hearing on April 23, 2009, the district court denied Lozman's motion.

On August 12, 2009, the City moved for partial summary judgment on its maritime trespass claim. After considering Lozman's response, the district court granted the City's motion, finding that the Defendant was a “vessel” for purposes of federal admiralty jurisdiction. The district court also found that the Defendant was trespassing on the marina as of April 1, 2009. Lozman...