Callaway v. Hornbake

Decision Date01 February 2012
Docket NumberCASE NO. 2:11-CV-85-FtM-99DNF
PartiesB. LYNN CALLAWAY as Trustee for the Compount Trust; B. LYNN CALLAWAY, individually; NOEL D. CLARK, JR., individually; and K.A. DELAET, individually former stock holder of Dirt Cheap Enterprises, Inc., Plaintiffs, v. LESTER HORNBAKE in his official capacity as Head of Desoto County Building and Zoning; LESTER HORNBAKE, individually; DESOTO COUNTY BOARD OF COUNTY COMMISSIONERS or alternatively BUDDY MANSFIELD; JAMES SELPH; JUDY SCHAEFER; ELTON A. LANGFORD; and RONALD NEADS in their official capacities as Commissioners of Desoto County; KIMBERLEY ROUTT, individually; SANDRA GREEN, individually; and NEW KEEN, official property appraiser, Defendants.
CourtU.S. District Court — Middle District of Florida
ORDER

THIS CAUSE is before the Court on the Motion to Dismiss filed by Defendants Lester Hornbake, individually and in his official capacity, the Desoto County Board of County Commissioners, or Buddy Mansfield, James Selph, Judy Schaefer, Elton Langford and Ronald Neads (Dkt. 14). Plaintiffs filed a response in opposition (Dkt. 24). For the reasons stated below, the Court will grant Defendants' Motion to Dismiss.

I. BACKGROUND

As alleged in the Complaint, Callaway and Clark were working on the Trust's property at 3132 and 3172 SW Highway 17 in Arcadia, Florida (Dkt. 1, ¶27). They were cleaning and clearing the grounds of debris to use the property to open Dirt Cheap Enterprises, Inc. ("Dirt Cheap"). Id. Callaway went to the Desoto County Building and Zoning office and informed them of the plans to clear the property. Id. at ¶28. She asked if any permits were required to do the work on the property. Id. She was informed that she needed an electrical permit, but not a permit to replace an existing canopy and cornice on the property. Id. at ¶29. Callaway purchased the electrical permit and materials to do the project. Id. at ¶30.

Callaway and Clark began the project on the property and started removing the old canopy and cornice. Id. at ¶31. Upon learning of the project, Hornbake told Callaway that she would need to obtain a building permit for the work done on the canopy. Id. at ¶33. Callaway purchased the building, or owner's permit. Id. at ¶34.

Following this purchase, the County then required Callaway to retain an engineer for replacing the canopy. Id. at ¶35. Callaway hired an engineer. Id. at ¶36. The engineer signed off on the project and provided the specifications for the work on the canopy. Id. at ¶37. Hornbake then issued the permits for Callaway and Clark to finish the project. Id. With the permits, Callaway and Clark restarted the project. Id. at ¶38.

Although there were no additional people working on the canopy, Hornbake then required Callaway to retain a licensed contractor for the work on the canopy. Id. at ¶¶39-40. Callaway, however, did not hire a licensed contractor. Id. at 41. At the time, Callaway and Clark were at the point of "blacking in" the canopy for purposes of protecting their work from the weather. Id.

On February 24, 2009, Callaway and Clark were met by Routt and Green at the property. Id. at ¶45. Clark called the Sheriff who arrived and asked the ladies to leave the property. Id. at ¶46. Hornbake then arrived at the property and taped a "Stop Work Order" on the property. Id. at ¶¶47. 49, Ex. A. Callaway wanted to challenge the stop work order, but Hornbake ignored her requests. Id. at ¶50. While waiting to challenge the stop work order, the work on the property was destroyed due to the weather. Id. at ¶51. Callaway was never given a hearing. Id. Callaway was told not to touch the property before the County authorized it. Id. at ¶52.

Delaet put Hornbake and the County Building and Zoning office on notice about the loss of income from the prospective business of Dirt Cheap. Id. at ¶55.

II. PROCEDURAL HISTORY

On February 24, 2011, Plaintiffs filed their complaint against Defendants. Plaintiffs allege the following claims in their complaint: 1) Count I - Deprivation of Constitutional Rights Under Color of Law against Hornbake as head of Building and Zoning for Desoto County, Florida; 2) Count II - Deprivation of Constitutional Rights Under Color of Law against Hornbake individually; 3) Count III - Deprivation of Constitutional Rights Under Color of Law against Desoto County Board of County Commissioners; 4) Count IV - Deprivation of Constitutional Rights Under Color of Law against Routt, individually; 5) Count V - Deprivation of Constitutional Rights Under Color of Law against Green, individually; 6) Count VI - Common Law Damages against Keen as the Desoto County Property Appraiser and Desoto County Board of County Commissioners; 7) Count VII - Libel Per Se against all Defendants in their official and individual capacities; 8) Count VIII -Defamation of Name, Credit, Reputation, Business Relations and Livelihood against all Defendantsin their official and individual capacities; and 9) Count IX - Loss of Business and Livelihood by Delaet against all Defendants.

III. STANDARD
A. Federal Rule of Civil Procedure 12(b)(1) - Lack of Standing/Subject Matter Jurisdiction

"Because standing is jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)." Cone Corp. v. Fla. Dep't of Transp., 921 F.3d 1190, 1203 n. 42 (11th Cir. 1991); see Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)(same). As standing is such a critical jurisdictional doctrine, the Court must consider it first. Id. (citing Bischoff v. Osceola County, 222 F.3d 874, 877-78 (11th Cir. 2000)). If a district court determines that there is no standing and, thus, no subject matter jurisdiction, it cannot hear the merits of the case. Id. at 974-75 (citing Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999)). To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief . . . [The Court] ha[s] consistently stressed that a plaintiff's complaint must establish that he has a 'personal state' in the alleged dispute, and that the alleged injury suffered is particularized as to him." Raines v. Byrd, 521 U.S. 811, 818-19, 117 S. Ct. 2312, 138 L. Ed. 2d 849 (1997); see Lujuan v. Defenders of Wildlife, 504 U.S. 555, 560 n. 1, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)("By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.").

B. Federal Rule of Civil Procedure 12(b)(6) - Failure to State a Claim Upon Which Relief Can Be Granted

To survive a motion to dismiss, a pleading must include a "'short and plain statement showing that the pleader is entitled to relief.'" Ashcroft, et al. v. Iqbal, et al., 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)(quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of a cause of action are not sufficient. Id. (citing Bell Atlantic Corp, et al. v. Twombly, et al., 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Mere naked assertions, too, are not sufficient. Id. A complaint must contain sufficient factual matter, which, if accepted as true, would "state a claim to relief that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The court, however, is not bound to accept as true a legal conclusion stated as a "factual allegation" in the complaint. Id. at 1950. Therefore, "only a claim that states a plausible claim for relief survives a motion to dismiss." Id. (citation omitted).

IV. LEGAL ANALYSIS
A. Plaintiff Callaway as the Trustee of the Compound

Generally, the Eleventh Circuit has found that certain entities, such as corporations, cannot proceed pro se in federal court; instead, such entities must be represented by counsel. See Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985). Like corporations, trusts must be represented by counsel as well. See U.S. v. Lena, No. 05-80669-CIV, 2007 WL 4578336, at *1 (S.D. Fla. Dec. 27, 2007)(finding that there was "no reason to make a distinction between a trust and a corporation for purposes of the right of self-representation . . . ."); EHOF Trust v. S & A Capital Partners, Inc., 947 So.2d 606 (Fla. Dist. Ct. App. 2007)(finding that a non-lawyer attorney engaged in the unauthorized practice of law by representing a trust); see also In re Hamblen, 360 B.R. 362,365-66 (N.D. Ga. 2006)(holding that trusts cannot proceed pro se in federal court). Therefore, a non-lawyer cannot represent a trust in litigation.

Plaintiff Callaway attempts to assert claims in this case as a trustee of Compound Trust. Furthermore, she attempts to proceed pro se in her official capacity as a trustee. However, it does not appear that Plaintiff Callaway is an attorney who has the authority to represent Compound Trust in this litigation. To the extent that Plaintiff Callaway brings claims on behalf of Compound Trust, the Court holds that Plaintiff Callaway cannot proceed pro se, but must be represented by counsel.

B. Standing

Defendant Hornbake and the Board's first argument to dismiss Plaintiffs' complaint is that Plaintiffs do not have standing to bring their claims against Defendants (Dkt. 14, p. 5). As to Plaintiff Delaet, Defendants argue that she does not own the property that is the center of the dispute and although she is listed as a former stockholder, there is nothing in the record demonstrating that Delaet was ever issued any stock in Dirt Cheap. Id. at p.6. Furthermore, as a stockholder, Delaet should have brought a derivative action and can only sue in her individual capacity if there was a harm specific to her. Id. As...

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