Bd. of Trs. of the Internal Improvement Trust Fund v. Walton Cnty.

• Decision Date: 23 September 2013
• Docket Number: No. 1D13–244.,1D13–244.
• Citation: 121 So.3d 1166
• Parties: BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND and The Florida Department of Environmental Protection, Appellants, v. WALTON COUNTY, Florida, Tammy N. Alford, Slade Lindsey and Janet Frost, Appellees.
• Court: Florida District Court of Appeals

121 So.3d 1166

BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND and The Florida Department of Environmental Protection, Appellants,

v.WALTON COUNTY, Florida, Tammy N. Alford, Slade Lindsey and Janet Frost, Appellees.

No. 1D13–244.

District Court of Appeal of Florida, First District.

Sept. 23, 2013.

Pamela Jo Bondi, Attorney General, and Jonathan Glogau, Assistant Attorney General, Chief, Complex Litigation, Tallahassee, for Appellants.

D. Kent Safriet and Darby K. Scott of Hopping Green & Sams, P.A., Tallahassee, for Appellees Tammy N. Alford, Slade Lindsey and Janet Frost.

SWANSON, J.

Appellants seek review of a non-final order determining that venue of this inverse condemnation lawsuit will remain in the Circuit Court for Leon County. We have jurisdiction. Art. V, § 4(b)(1), Fla. Const. (granting to district courts of appeal jurisdiction to “review interlocutory orders ... to the extent provided by rules adopted by the supreme court”); Fla. R. App. P. 9.130(a)(3)(A) (providing for appeal to the district courts of appeal of non-final orders that “concern venue”). For the reasons stated hereinafter, we deny appellants' request that we address this interlocutory appeal as a petition for writ of prohibition under Florida Rules of Appellate Procedure 9.100(a) and 9.030(b)(3), and we affirm the trial court's ruling that appellants waived their argument of improper venue by failing to raise the issue before serving a responsive pleading to appellees' Third Amended Complaint.

Appellant Board of Trustees of the Internal Improvement Trust Fund (“the Board”), headquartered in Leon County, Florida, is charged with the responsibility of managing all state-owned lands with the authority to sue and be sued. See§ 253.02, Fla. Stat. Appellant Florida Department of Environmental Protection (“the Department”), also headquartered in Leon County, is the state agency responsible for the implementation of the “Dennis L. Jones Beach and Shore Preservation Act,” Part I, chapter 161, Florida Statutes (“the Act”). See§ 161.031, Fla. Stat. At the time suit was filed, appellees Tammy N. Alford, Slade Lindsey, and Janet Frost owned property in Walton County, Florida, fronting the Gulf of Mexico. In 1995, Hurricane Opal critically eroded a 6.9–mile swath of beaches and dunes along the Gulf of Mexico within the City of Destin (“the City”) and Walton County (“the County”), including appellees' property. As a result, the Department initiated a process under the Act, which culminated, on July 30, 2003, in the filing of an Application for a Joint Coastal Permit and Authorization to Use Sovereign Submerged Lands. The application proposed the restoration through renourishment of damaged shore line through the dredging of sand from eastern Okaloosa County, Florida, which was then deposited on the affected beaches. Essential to this process was the establishment of the area's mean high water line and the erosion control line in order to determine the boundary between publicly owned land and the privately owned upland properties.

After the Department filed a notice of intent to issue the permit, two entities, Save Our Beaches, Inc. (a not-for-profit corporation representing real property owners in Okaloosa County), and Stop the Beach Renourishment, Inc. (a not-for-profit corporation representing real property owners in Walton County), along with six individual property owners, including appellees Alford and Lindsey, instituted a formal administrative hearing challenging the resulting draft permit. Stop the Beach Renourishment, Inc., filed a separate petition challenging the Walton County erosion control line established by the Board. The ensuing litigation wound its way up to the United States Supreme Court on the esoteric issue of whether the Florida Supreme Court's decision—that the Act did not unconstitutionally deprive the property owners' littoral rights without just compensation— itself effected a taking of the property owners' littoral rights contrary to the Fifth and Fourteenth Amendments to the United States Constitution. The Supreme Court concluded it did not. See, Walton Cnty. v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla.2008), aff'd sub nom., Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 560 U.S. 702, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010).

In the meantime, on August 27, 2004, Save Our Beaches, Inc., and Stop the Beach Renourishment, Inc. (“the plaintiffs”), filed a complaint in the Circuit Court for Leon County for declaratory and injunctive relief, naming the Board, the Department, the County, and the City as defendants. In the complaint, the plaintiffs challenged the Act “because it confiscates constitutionally protected littoral property rights without providing due process of law or just and full compensation.” Specifically, plaintiffs sought a declaration that sections 161.141 and 161.191, Florida Statutes (2004), are unconstitutional, and requested the trial court to enjoin the establishment of the erosion control line prior to eminent domain proceedings being instituted by the defendants to acquire “the protected littoral rights” of the plaintiffs.

On February 3, 2005, the initial plaintiffs filed an amended complaint, adding as co-plaintiffs, Flamingo Investment Properties, LLC, Patrick Ross, and Dennis Jones, along with appellees Alford and Lindsey. On March 7, 2005, in accordance with the trial court's order, the plaintiffs filed their Second Amended Complaint, alleging that sections 161.141, 161.191, and161.161, Florida Statutes (2004), are unconstitutional, both facially and as applied. At the request of the Board, the Department, and the County, and over the objection of the plaintiffs, on June 21, 2007, the case was abated pending resolution of the above-referenced administrative litigation. During the three-year period of abatement, the Department and the County recorded the erosion control line.

On December 16, 2010, the plaintiffs filed their Motion for Leave to Amend Complaint and Motion to Add and Drop Parties (adding appellee Frost as a party, and dropping Save Our Beaches, Inc., Stop the Beach Renourishment, Inc., Flamingo Investment Properties, LLC, Patrick Ross, and Dennis Jones as parties). The amendment was necessitated by events that had occurred during the period of abatement, including the recordation of the erosion control line and the filing of the Supreme Court's opinion resolving the constitutional issues spawned by the administrative challenge to the permit. As a consequence, appellees' Third Amended Complaint deleted the prior claims demanding that appellants institute eminent domain proceedings, and, instead, added a claim for inverse condemnation, alleging that “[b]y approving the Walton ECL [erosion control line], which was recorded and is located landward of the pre-Opal MHWL [mean high water line], the Board permanently took the real property located between the Walton ECL and pre-Opal MHWL of [plaintiffs] for public use.” The complaint went on to allege that “[n]one of the plaintiffs ha[s] been paid just compensation for the property taken by the Board.”

On December 28, 2012, the trial court entered its Order Lifting Abatement, Granting Plaintiffs' Motion for Leave to Amend Complaint and Motion to Add and Drop Parties, and Denying Defendants['] Motion for Summary Judgment as Moot. The trial court determined that the claims in the Third Amended Complaint relate back to the Second Amended Complaint pursuant to Florida Rule of Civil Procedure 1.190(c), and that no new cause of action was being alleged:

The asserted conduct relevant to the prospective takings in the Second Amended Complaint and the retrospective takings claims in the Third Amended Complaint arises out of the “same general factual situation.” Specifically, the County sought a permit to undertake a beach restoration project, [the Department] issued a permit and approved the ECL that was surveyed and recorded by the County, the Board took title to land seaward of the ECL, and the conveyance of title to the Board was a taking of Plaintiffs' property in violation of the Florida and federal constitutions. Plaintiffs are not asserting a new cause of action—the Second Amended Complaint alleges a cause of action for a taking caused by the beach restoration project as does the Third Amended Complaint. The difference between the claims is that the Second Amended Complaint seeks prospective and injunctive relief to prevent the taking from occurring and the Third Amended Complaint seeks relief for the taking that did occur (due to the passage of time). Thus, the Plaintiffs' “cause of action” has not changed; it was and still is a “taking” that arises out of the “same general factual situation” (i.e., the beach restoration project). Such claims necessarily relate back to the Second Amended Complaint. Ron's Quality Towing, Inc. [ v. Se. Bank of Fla.], 765 So.2d [134,] 135 [ (Fla. 1st DCA 2000) ]; Armiger [ v. Associated Outdoor Clubs, Inc.], 48 So.3d [864,] [ ] 870–72 (Fla. 2d DCA 2010).

In sum, the amended claims asserted in the Third Amended Complaint allege specific facts—which have now occurred—that the claims in the Second Amended Complaint generally alleged would occur. Ron's Quality Towing, Inc., 765 So.2d at 136 (An “amendment which merely makes more specific what has already been alleged generally, or which changes the legal theory of the action, will relate back even though the statute of limitations has run in the interim.” (citation omitted) (internal quotations omitted)). Further, allowing amendment furthers the salutary ends of the relation back doctrine. Armiger, 48 So.3d at 870–72. Accordingly, the Third Amended Complaint relates back to the claims previously asserted by Plaintiffs and amendment is proper under Florida Rule of Civil Procedure 1.190(c).

(Emphasis Added.)(Footnote 3 omitted.)

In footnote 4 of the opinion, the trial court noted that appellants had “raised...