Graham v. Edwards

• Decision Date: 02 July 1985
• Docket Number: No. 85-184,85-184
• Citation: Graham v. Edwards, 472 So.2d 803, 10 Fla. L. Weekly 1663 (Fla. App. 1985)
• Parties: 10 Fla. L. Weekly 1663 Bob GRAHAM, Governor of the State of Florida, George Firestone, Secretary of State, Jim Smith, Attorney General, Gerald A. Lewis, Comptroller, William Gunter, State Treasurer, Ralph D. Turlington, Commissioner of Education, and Doyle E. Conner, Commissioner of Agriculture, as and constituting the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, Appellants, v. John R. EDWARDS, Sr., Appellee.
• Court: Florida District Court of Appeals

Page 803

472 So.2d 803

10 Fla. L. Weekly 1663

Bob GRAHAM, Governor of the State of Florida, George Firestone, Secretary of State, Jim Smith, Attorney General, Gerald A. Lewis, Comptroller, William Gunter, State Treasurer, Ralph D. Turlington, Commissioner of Education, and Doyle E. Conner, Commissioner of Agriculture, as and constituting the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, Appellants, v. John R. EDWARDS, Sr., Appellee.

No. 85-184.

District Court of Appeal of Florida Third District.

July 2, 1985.

Rehearing Denied Aug. 6, 1985.

Bruce Barkett, Tallahassee, for appellants.

Albury, Morgan & Hendrick, Key West, Messer, Rhodes & Vickers and Terry E. Lewis and Cari L. Roth, Tallahassee, for appellee.

Richard Gentry, Steve Lewis, Tallahassee, for Florida Home Builders Ass'n as amicus curiae.

Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.

HENDRY, Judge.

The appellant/state brings this interlocutory appeal from an order denying its motion to dismiss or in the alternative to transfer venue and granting appellee John Edwards' motion for preliminary injunction. The two issues on appeal are whether the trial court abused its discretion in granting a preliminary injunction against the Board of Trustees of the Internal Improvement Trust Fund (Board) and whether venue is proper only in Leon County, Florida.

The facts giving rise to these issues are as follows. John Edwards is a developer involved with the development of the Sheraton Key Largo, a hotel and resort conference center in Monroe County. He submitted to the Board a request for a lease to construct a commercial docking facility on the sovereign submerged lands behind the proposed Sheraton. Subsequently, the Board adopted a resolution directing the Department of Natural Resources (DNR) not to consent to the use of sovereign submerged lands within Monroe County or to seek the Board's approval for any additional submerged lands leases in the county until the Board was presented with a report on John Pennekamp State Park's coral reefs and Key Largo Coral Reef Marine Sanctuary. The resolution continued in effect until an emergency rule codifying it was filed on November 14, 1984. Fla.Admin.Code Rule 16Q-21.041. The rule provides for a moratorium on leases until rules are adopted for the Florida Keys-Monroe County Aquatic Preserve or the revised Monroe County Comprehensive Plan is adopted, whichever occurs first.

Mr. Edwards' counsel advised the DNR that Mr. Edwards intended to construct a private dock of less than 1,000 square feet over the sovereign land behind the proposed Sheraton as section 403. 813(2)(b), Florida Statutes (1983), preempts the requirement to obtain state consent to construct such a dock. This statute provides, in pertinent part, as follows:

403.813 Permits issued at district centers; exceptions.--

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(2) No permit under this chapter, chapter 373, or chapter 253, chapter 61-691, Laws of Florida, or chapter 25214 or chapter 25270, Laws of Florida, 1949, shall be required for activities associated with the following types of projects; however, nothing in this subsection shall relieve an applicant from any requirement to obtain permission to use or occupy lands owned by any water management district in its governmental or proprietary capacity or from complying with applicable local pollution control programs authorized under this chapter or other requirements of county and municipal governments:

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(b) The installation and repair of mooring pilings and dolphins associated with private docking facilities and the installation of private docks, any of which docks:

1. Has ... 1,000 square feet or less....

The DNR advised counsel for Mr. Edwards by letter that such activity was unauthorized and subject to the enforcement provisions of Chapter 253, Florida Statutes (1983), including damages and fines. When the letter from the Board's attorney was received, Mr. Edwards ceased building his dock. He had at that time purchased various materials for the dock, mobilized a work crew and begun construction. His expenditures amounted to $16,450.

Mr. Edwards brought suit in Monroe County Circuit Court for declaratory and injunctive relief against the state. The state made a motion to dismiss or in the alternative to transfer venue. Mr. Edwards made a motion for a preliminary injunction. The trial court denied the state's motion and granted Mr. Edwards' motion for a preliminary injunction. Subsequently, the state filed this interlocutory appeal.

The state contends that the trial court erred in granting a preliminary injunction as the requirements therefor were not met. It also contends that venue is proper only in the Second Judicial Circuit in and for Leon County, Florida.

We will respond to the state's venue argument first. It has been the established common law of Florida that venue in civil actions brought against the state or one of its agencies or subdivisions properly lies where the state, agency or subdivision maintains its principal headquarters, unless there is a waiver or exception to that venue privilege. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). An exception to this state venue privilege is that a suit for the protection of the rights of the plaintiff may be entertained in the county where the invasion is threatened or has occurred. This exception to the rule is called the "sword-wielder doctrine", so named because it applies when the plaintiff's action is in the nature of a shield against the state's thrust. Hancock v. Wilkinson, 407 So.2d 969, 970 (Fla. 2d DCA 1981); Graham v. Vann, 394 So.2d 178 (Fla. 1st DCA 1981); Department of Revenue v. First Federal Savings & Loan Association, 256 So.2d 524 (Fla. 2d DCA 1971); see Carlile v. Game and Fresh Water Fish Commission, 354 So.2d at 365-66. An explanation of the sword-wielder doctrine is given in Graham v. Vann, 394 So.2d at 179:

One recognized exception to the rule exists where an unlawful invasion of a lawful right secured to the plaintiff by the constitution or laws of the jurisdiction is directly threatened in the county where the suit is instituted. Parties seeking relief from alleged threats to their personal and property rights by the operation of unconstitutional acts of an agency of the state may bring suit in the county where the alleged wrongs are threatened or alleged to have been committed.

The question which arises here is whether the state was the initial sword-wielder. We believe this question must be answered in the affirmative. Mr. Edwards had acquired materials, assembled workers, given notice to the DNR and begun to build a private dock, based upon the authority of section 403.813(2)(b) that such dock was exempt from the Board's regulation. The DNR responded that such activity was unauthorized and threatened damages and substantial fines if work on the dock did not cease. Given these facts, it appears that the state made the initial thrust.

The burden is on the appellant to demonstrate that the trial judge abused his discretion in refusing a change of venue. Florida East Coast Railway Co. v. Hardee, 167 So.2d 68, 69 (Fla. 3d DCA 1964). The state has not met this burden. We find that suit was properly instituted in Monroe County where Mr. Edwards' lawful rights were allegedly being threatened.

As to the state's second contention that the elements necessary for a preliminary injunction have not been established, we find we must agree. The requirements for establishing the right to preliminary injunctive relief are as follows:

(a) the likelihood of irreparable harm, and the unavailability of an adequate remedy at law, (b) the substantial likelihood of success on the merits, (c) that the threatened injury to petitioner outweighs any possible harm to the respondent and, (d) that the granting of preliminary...