Morton v. Gardner, 86-1141

• Decision Date: 29 September 1987
• Docket Number: No. 86-1141,86-1141
• Citation: 12 Fla. L. Weekly 2339,513 So.2d 725
• Parties: , 12 Fla. L. Weekly 2339 George M. MORTON and Marlene J. Morton, Appellants, v. Tom GARDNER, Executive Director, Department of Natural Resources, State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 725

513 So.2d 725

1988 A.M.C. 2587, 12 Fla. L. Weekly 2339

George M. MORTON and Marlene J. Morton, Appellants, v. Tom GARDNER, Executive Director, Department of Natural Resources, State of Florida, Appellee.

No. 86-1141.

District Court of Appeal of Florida Third District.

Sept. 29, 1987.

Rehearing Denied Nov. 2, 1987.

James S. Mattson, Key Largo, for appellants.

L. Kathryn Funchess, Tallahassee, for appellee.

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

DANIEL S. PEARSON, Judge.

The questions presented on this appeal are (1) whether the seizure of a vessel pursuant to the Florida Contraband Forfeiture Act gives rise to an inverse condemnation claim by the vessel's owner who prevails in the forfeiture proceeding, and (2) whether such prevailing owner is entitled to recover damages in tort for the loss of use of his property. We answer both questions in the negative and affirm the judgment under review.

I.

The Miss Jean, a commercial lobster fishing boat owned by the appellants, George and Marlene Morton, was seized by Florida Marine Patrol officers who were found to have had probable cause ¹ to believe that the vessel was carrying a contraband article--marijuana--in violation of the Florida Contraband Forfeiture Act, §§ 932.701-.704, Fla.Stat. (1983). ² Pursuant to the Act, the State instituted forfeiture proceedings which concluded with the trial court finding that the Miss Jean was not in fact carrying marijuana on the day in question and, consequently, dismissing with prejudice the State's forfeiture petition and ordering the immediate return of the vessel to the Mortons.

Left pending after the disposition of the forfeiture proceedings--and the only matter of concern on this appeal--was the amended counterclaim of the Mortons. ³ Disregarding its prolixity, the counterclaim sought compensation on two theories--tort and inverse condemnation--each of which was based on the claim that the Mortons had been wrongfully deprived of the use of their vessel for 124 days, the duration of its detention by the State.

The trial court dismissed the tort claim for failure to state a cause of action and allowed the inverse condemnation claim to proceed to trial by jury. The jury, instructed that probable cause to seize the vessel was a complete defense to the inverse condemnation claim, ⁴ rendered a verdict for the State, expressly finding in its verdict that there was probable cause. ⁵ The Mortons appeal.

II.

The Tort Claim.

The Mortons contend that the judgment in their favor in the forfeiture proceeding establishes that the seizure and the subsequent detention of their vessel were unlawful and entitles them to recover damages in a tort action against the State. We disagree.

Seizure and forfeiture in Florida are governed by Sections 932.701-.704, Florida Statutes, the Florida Contraband Forfeiture Act. ⁶ The Act provides for the seizure of "any vessel, motor vehicle, aircraft, and other personal property" carrying contraband. § 932.703. It requires that the State promptly institute proceedings to forfeit the seized property. § 932.704(1). Upon producing "due proof" that the property was being used in violation of the law, the State is entitled to have the property forfeited, and the final order of forfeiture perfects the State's title in the contraband.

Federal law similarly provides for the seizure and forfeiture of carriers of contraband articles. 49 U.S.C. §§ 781-782. Federal law additionally provides:

"[u]pon the entry of judgment for the claimant in any proceeding to condemn or forfeit property seized under any Act of Congress, such property shall be returned forthwith to the claimant or his agent; but if it appears that there was reasonable cause for the seizure, the court shall cause a proper certificate thereof to be entered and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution.

28 U.S.C. § 2465.

The state and federal statutory schemes, despite differences in phraseology, both allow seizure of a vessel upon probable cause to believe that it is a carrier of contraband, but require for forfeiture proof that the vessel in fact carried contraband. While Florida law has no counterpart to the federal provision for a "probable cause certificate," the absence of such a provision is, as will be seen, of no significance in determining governmental liability for a seizure.

Federal courts recognize that the purpose of the probable cause certificate is "to protect against liability for costs [taxed to the government] or damages [sought from the seizing officer] on account of the institution of [a forfeiture proceeding] where there is reasonable cause for instituting [it]...." United States v. Tito Campanella Societa di Navigazione, 217 F.2d 751, 756 (4th Cir.1954). However, the absence of a certificate does not mean that an owner of seized property will prevail; the existence of probable cause for the seizure remains a barrier to the recovery of damages against the United States. United States v. 1500 Cases, More or Less, 249 F.2d 382 (7th Cir.1957).

In Hammel v. Little, 87 F.2d 907 (D.C.Cir.1936), the court had before it an action for trespass brought against a seizing officer where the property seized was returned to the plaintiff after his acquittal of the underlying criminal charge. The plaintiff in Hammel contended that "probable cause is never a justification for an illegal seizure" where no probable cause certificate is issued. Id. at 908. In making this contention, the plaintiff relied (as do the Mortons here) on The Apollon, 22 U.S. (9 Wheat.) 362, 373, 6 L.Ed. 111, 114 (1824), in which the court held that the seizer is liable for damages after a property owner's acquittal and cautioned that a party "seizes at his peril." Responding, the Hammel court pointed out that in The Apollon the court had refused to give a certificate of reasonable cause and observed, therefore, that "the sweeping language of [The Apollon ] that probable cause is never an excuse for a seizure ... was doubtless meant to apply only to the case then under consideration by the court." Hammel v. Little, 87 F.2d at 909-10. The rather unremarkable meaning of The Apollon, then, is that denial of a probable cause certificate is a determination that the seizure was tortious and gives rise to an action for damages. ⁷ Id. at 912. But the mere absence of a certificate determines nothing.

Although Florida statutory law lacks the protection from damage suits given federal officers by the probable cause certificate, no forfeiture proceeding can go forward under the Florida scheme without a determination that probable cause existed. Following a seizure, the State must promptly proceed against the property by petition for a rule to show cause. § 932.704(1), Fla.Stat. (1983). The claimant's exclusive avenue of recovery then becomes the forfeiture proceeding itself, where he may prove by a preponderance of the evidence (as the Mortons did here) that the forfeiture statute was not violated. But a successful claimant becomes entitled only to the return of his property. In Re Approximately Forty-Eight Thousand Nine Hundred Dollars in U.S. Currency, 432 So.2d 1382, 1385 n. 6 (Fla. 4th DCA 1983); § 932.703(1).

The process, then, has two steps: (1) seizure, the validity of which depends on the presence of probable cause to believe that the property seized was being used in violation of the Act, and (2) forfeiture, the validity of which depends on a finding that the property seized was in fact being used in violation of the Act and is thus forfeitable. The Mortons do not dispute that the seizure was based on probable cause ⁸; they merely contend that the finding that the vessel was not in fact being used in violation of the Act retroactively invalidates the seizure. ⁹ The contention is without merit, and we reject it. ¹⁰

It is well settled that "[i]f a man by warrant is arrested for suspicion of a felony, it is not necessary that he should be found guilty on his trial, in order to justify the arrest," Hammel v. Little, 87 F.2d at 910 (quoting Lord Mansfield); a fortiori, if a person's property is seized upon probable cause, it is not necessary that the State prevail in the forfeiture proceeding in order to justify the seizure. ¹¹ "[S]o far as we know it has never been the law that trespass will lie for an act of seizure unless it appears that the act was tortious or unauthorized." Hammel v. Little, 87 F.2d at 912. See also United States v. 1500 Cases, More or Less, 249 F.2d 382.

III.

Inverse Condemnation.

We turn now to the Mortons' contention that the seizure and detention of their vessel sounds not only in tort, but also represents a "taking" by the government giving rise to a claim in inverse condemnation for compensation for their loss of use of the vessel for 124 days. We reject this contention as well.

In Florida, an action for inverse condemnation does not arise from a temporary "taking." Hillsborough County v. Gutierrez, 433 So.2d 1337 (Fla. 2d DCA 1983) (where flooding in a landowner's house caused by the county's action was remedied, the temporary ouster supports a claim in tort, not inverse condemnation). Only a permanent deprivation of an owner's use of his property will support such an action. Department of Health and Rehabilitative Services v. Scott, 418 So.2d 1032 (Fla. 2d DCA 1982). When governmental action merely impairs the owner's use of his property, "the action does not constitute a 'taking' but is merely consequential damage and the owner is not entitled to compensation." Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663, 669 (Fla.1979). The damages then are damnum absque injuria and thus not compensable. Id.; accord Florida East Coast Properties, Inc. v. Metropolitan Dade County, 572 F.2d 1108 (5th Cir.1978).

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