Albrecht v. State, 79-2234

• Decision Date: 25 March 1981
• Docket Number: No. 79-2234,79-2234
• Citation: 407 So.2d 210
• Parties: George R. ALBRECHT and C. G. Schindler, Jr., Appellants, v. The STATE of Florida; The Honorable Reubin O'D. Askew, Governor; Honorable Jim Williams, Lieutenant Governor; Honorable Jesse J. McCrary, Jr., Secretary of State; Honorable Robert Shevin, Attorney General; Honorable Bill Gunter, State Treasurer and Insurance Commissioner; Honorable Gerald A. Lewis, Comptroller; Honorable Doyle Conner, Commissioner of Agriculture; Honorable Ralph D. Turlington, Commissioner of Education; Honorable Joseph W. Landers, Jr., Secretary, Department of Environmental Regulation, as the Trustees of the Internal Improvement Trust Fund of the State of Florida; the Internal Improvement Trust Fund of the State of Florida; and the Department of Environmental Regulation, Appellees.
• Court: Florida District Court of Appeals

Page 210

407 So.2d 210

George R. ALBRECHT and C. G. Schindler, Jr., Appellants, v. The STATE of Florida; The Honorable Reubin O'D. Askew, Governor; Honorable Jim Williams, Lieutenant Governor; Honorable Jesse J. McCrary, Jr., Secretary of State; Honorable Robert Shevin, Attorney General; Honorable Bill Gunter, State Treasurer and Insurance Commissioner; Honorable Gerald A. Lewis, Comptroller; Honorable Doyle Conner, Commissioner of Agriculture; Honorable Ralph D. Turlington, Commissioner of Education; Honorable Joseph W. Landers, Jr., Secretary, Department of Environmental Regulation, as the Trustees of the Internal Improvement Trust Fund of the State of Florida; the Internal Improvement Trust Fund of the State of Florida; and the Department of Environmental Regulation, Appellees.

No. 79-2234.

District Court of Appeal of Florida, Second District.

March 25, 1981.

As Modified on Denial of Rehearing Dec. 11, 1981.

Lee S. Damsker of Gordon & Maney, P. A., Tampa, for appellants.

Alfred W. Clark, Tallahassee, for appellee Department of Environmental Regulation.

GRIMES, Acting Chief Judge.

This is an appeal from a final judgment on the pleadings which dismissed a complaint on grounds of res judicata.

The pleadings reflect the following facts. Appellants were owners of coastal property in Pinellas County, 300 feet of which had been lost by erosion between 1943 and 1974. In 1974 they applied to the Board of County Commissioners of Pinellas County, sitting as the Pinellas County Water and Navigation Control Authority, for permission to fill and bulkhead their land to its original size. The board approved the application subject to the approval of the Board of Trustees of the Internal Improvement Trust Fund.

Appellants then applied to the Department of Pollution Control for water quality certification. However, that department denied their application. As a result, they filed a petition for review, and pursuant to a reorganization of the state environmental agencies, their application was transferred to the Department of Environmental Regulation. Following a hearing, the hearing officer issued a recommended order affirming the denial. The secretary of the Department of Environmental Regulation adopted the recommended order, and the Board of Trustees of the Internal Improvement Trust Fund affirmed it.

Appellants sought judicial review in the First District Court of Appeal pursuant to section 120.68, Florida Statutes (1975). The court denied their petition in an opinion issued on January 30, 1978. Albrecht v. Department of Environmental Regulation, 353 So.2d 883 (Fla. 1st DCA 1978). Almost seven months later, appellants filed suit in the circuit court of Pinellas County against the State of Florida and several state agencies alleging that by virtue of the administrative action recited above they had been unable to put their property to any use and that its fair market value had been greatly diminished. The complaint requested that the court declare the property to have been the subject of inverse condemnation and fix an amount of compensation to be paid appellants as a result of the taking. ¹ The court entered judgment on the pleadings against appellants, and they have appealed from that judgment.

The court predicated its judgment on Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979). In Coulter, this court held that one may bring suit in circuit court to collaterally attack the constitutionality of a law pursuant to which an administrative agency takes action. On the other hand, we said:

(W)hen administrative agency action in a proceeding has become final as to a party, whether or not review by a district court of appeal is sought, that party is foreclosed from asserting in circuit court that the agency action is unconstitutional (or is improper for any other reason).

373 So.2d at 427. Perceiving appellants' complaint as one attacking the constitutionality of the agency action rather than one attacking the constitutionality of the law under which the agency acted, the lower court held that once the decision in Albrecht became final, the doctrine of res judicata barred appellants' action.

Appellants seek to avoid the rationale of Coulter by arguing that they are not now trying to void the action of the Department of Environmental Regulation. Rather, they contend that they are seeking compensation for the taking which came about as a result of that action. They suggest that this is not a matter which they could have raised in the administrative proceedings because the issue of taking is a judicial function, and a jury must determine compensation. Despite the ingenuity of their position, we cannot accept it as a rational exception to the principles of Coulter.

Under the teaching of Coulter, appellants could have argued the question of whether the order of the Department of Environmental Regulation constituted a taking of their property in the proceedings before the First District Court of Appeal. Cf. Farrugia v. Frederick, 344 So.2d 921 (Fla. 1st DCA 1977), in which the court considered just such a contention. The fact that they did not raise it is irrelevant to the application of res judicata. Hay v. Salisbury, 92 Fla. 446, 109 So. 617 (1926). To now allow them to assert it under the guise of arguing that the taking was legal but that they were entitled to be paid for it would be to permit them to go through the back door. They could have made the same contention in the administrative proceeding, and the First District Court of Appeal could have required that any taking be compensated. In fact, this is in essence what happened in Estuary Properties, Inc. v. Askew, 381 So.2d 1126 (Fla. 1st DCA 1979).

Upon review of the denial of an application for development approval, the court in Estuary recognized that the state could legitimately regulate wetlands development for public benefit even though it had the effect of expropriating private property. However, the court held that under these circumstances, the state must compensate the landowners. It effectuated this result by ordering that the application be granted unless the county where the land was located commenced condemnation proceedings within thirty days.

Appellants are bound by the final determination of Albrecht. Therefore, principles of res judicata bar the relief they sought in circuit court.

AFFIRMED.

OTT and DANAHY, JJ., concur.

Rehearing denied:

OTT, Judge, dissenting.

I dissent. I would grant rehearing and reverse the dismissal of this action.

Appellants' complaint in the court below alleged that they had applied, under chapter 253, Florida Statutes, for a permit to fill their eroded waterfront property. They alleged that their application had been denied by action of the state agency and that, as a consequence, they had been denied all use of the subject property, entitling them to just compensation for the taking of that property by the state.

In express reliance on the opinion of this court in Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979), the trial court reluctantly ¹ dismissed the suit on the ground that, under the Coulter view, the denial of the fill permit had established as res judicata that no taking of appellants' property would result. This court affirmed, in which I reluctantly concurred. I am now convinced that my original reaction was correct, the affirmance was erroneous, and so was the reliance of the trial court on Coulter.

The doctrine of res judicata prohibits the relitigation of the same cause of action between the same individuals, and forecloses the examination of any issue which was adjudicated, either expressly or by operation of law, in the earlier proceedings. Gordon v. Gordon, 59 So.2d 40 (Fla.1952). It applies to the quasi-judicial decision of administrative agencies. City of Bartow v. Public Employees Relations Commission, 382 So.2d 311, 313(1, 2) (Fla. 2d DCA 1979).

In Coulter v. Davin, supra, a land owner who had been denied a permit by the state to fill his property filed a circuit court action seeking a declaration that the agency order was a nullity because, among other reasons, it constituted an unlawful taking of private property without just compensation. The trial court dismissed the action and we affirmed, reasoning that the land owner could have raised that issue in the administrative proceedings and, since he did not do so, the doctrine of res judicata barred him from asking another tribunal to examine that same issue.

I think the result in Coulter was correct, but I am now convinced that the doctrine of res judicata was not involved there. The prime prerequisite to application of that doctrine is that the issue being raised in the subsequent action must have been adjudicated, either expressly or by operation of law, in some previous action between the same parties. Gordon v. Gordon, supra. No such showing was made (or possible) either in Coulter or in the case now before us.

One of our sister courts has reached Coulter's result by a different route-or at least a renamed route-on facts quite similar to those at bench. In Key Haven Associated Enterprises, Inc. v. Board of Trustees, 400 So.2d 66 (Fla. 1st DCA 1981), a fill permit had been denied in chapter 380, Florida Statutes, administrative proceedings. The land owner did not appeal or seek judicial review, but instead filed an inverse condemnation suit in circuit court, claiming that the denial of the permit had deprived him of all use of his property, thus entitling him to just compensation. Dismissal of the suit was affirmed on the ground that administrative remedies had not been exhausted. Although cited and approved extensively in the opinion, Coulter, with its reliance on res judicata, obviously could not apply where the causes of action were so dissimilar. Even the related doctrines of collateral estoppel and collateral attack were not helpful, the first because the question of a taking had not been actually adjudicated by...