DiChristopher v. BOARD OF COUNTY COM'RS

908 So. 2d 492, 2005 WL 1364550
CourtDistrict Court of Appeal of Florida
DecidedAugust 12, 2005
Docket5D05-393
StatusPublished
Cited by14 cases

This text of 908 So. 2d 492 (DiChristopher v. BOARD OF COUNTY COM'RS) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiChristopher v. BOARD OF COUNTY COM'RS, 908 So. 2d 492, 2005 WL 1364550 (Fla. Ct. App. 2005).

Opinion

908 So.2d 492 (2005)

Michael A. DiCHRISTOPHER, Appellant,
v.
BOARD OF COUNTY COMMISSIONERS, etc., Appellee.

No. 5D05-393.

District Court of Appeal of Florida, Fifth District.

June 10, 2005.
Opinion Denying Rehearing and Granting Clarification August 12, 2005.

*493 Richard E. Torpy and G. Philip J. Zies, The Torpy Group, Melbourne, for Appellant.

Scott L. Knox, County Attorney, Office of the County Attorney, Viera, for Appellee.

SHARP, W., J.

DiChristopher appeals from a nonfinal order which denied and dismissed count one of his petition. DiChristopher sought a temporary injunction to enjoin the Board of County Commissioners of Brevard County from flooding his property as part of its mosquito control program.[1] The trial court ruled DiChristopher was not entitled to an injunction because he, through counts two and three of the petition, sought damages for inverse condemnation and devaluation of his property. We find no abuse of discretion in denying DiChristopher a temporary injunction and affirm the order below.

The Board of County Commissioners of Brevard County ("Brevard County") is the *494 governing body of the Brevard County Mosquito Control District. The District was created in 1937 under a special act that declared marshes and other areas where mosquitoes hatch to be a public nuisance and empowered the district to do anything necessary to control and eliminate mosquitoes, gnats and sand fleas.

In 1958, the District built a berm and canal system and began flooding 1200 acres to prevent the breeding of mosquitoes. The area is also subject to natural flooding.

In the late 1990s, DiChristopher acquired title to 145 acres and another 40 acre parcel within this area. DiChristopher gave the District consent to flood his property while he was attempting to sell the property to Brevard County. After negotiations broke down, DiChristopher withdrew his consent.

In June 2004, DiChristopher filed a petition for injunctive and other relief against Brevard County alleging that his property is periodically and recurrently completely submerged because of the flooding by the District. Count one of the petition sought a temporary and permanent injunction to restrain Brevard County from trespassing on his property. Count two sought damages as just compensation for the taking of the property and, in the alternative to the taking claim, count three sought damages for the devaluation of the property. DiChristopher later filed an amended petition asserting the same three counts as in his initial petition.

Brevard County moved to dismiss alleging, among other things, that the petition failed to state a cause of action or claim for injunctive relief. Brevard County argued injunctive relief was not available since an adequate remedy at law existed, as evidenced by counts two and three in which DiChristopher sought damages.

At the hearing below, Brevard County argued that DiChristopher has a remedy for damages under a theory of inverse condemnation and thus the portion of the amended petition seeking a temporary injunction should be dismissed. DiChristopher argued he was entitled to plead in the alternative and that the remedy at law was not adequate.

DiChristopher testified the District usually floods his property from May until September and the flooding causes erosion. The flooding has affected his ability to sell or develop the property. According to DiChristopher, Brevard County does not have the funds to purchase his property under eminent domain.

James Hunt, the district director for the Brevard County Mosquito Control District, acknowledged DiChristopher's property is used in the control of mosquitoes. If DiChristopher were successful in stopping the District from flooding his property, the program would no longer work. DiChristopher's property divides the area in half and the District would not be able to pump water from one side to the other.

On appeal, DiChristopher argues the trial court erred in denying and dismissing his request for temporary injunctive relief because Florida law specifically allows a plaintiff to plead in the alternative for an injunction and for damages. See Downing v. Bird, 100 So.2d 57 (Fla.1958) (on remand, plaintiff was allowed to amend her complaint to ask for compensation either solely or in the alternative to her request for injunction requiring city to remove paved road from her property). In response, Brevard County argues that under the modern law of inverse condemnation, the possibility of a successful inverse condemnation action constitutes an adequate remedy at law which precludes the pursuit of a claim for an injunction to prohibit the government's use of the property allegedly *495 taken. Brevard County also argues that DiChristopher is relying on dicta from Downing and notes the case does not even discuss the concept of an "adequate remedy at law."[2]

DiChristopher is correct that if a plaintiff is unsure of the correct legal basis for relief, he may plead in the alternative. A plaintiff may set out the facts of the occurrence or transaction and demand judgment in his favor on several bases, even mutually exclusive ones. Quality Type & Graphics v. Guetzloe, 513 So.2d 1110 (Fla. 5th DCA 1987).

However, the ability to plead alternative bases for relief does not mean that the plaintiff is entitled to a temporary injunction. A temporary injunction is properly entered only in extraordinary circumstances. Ferris v. Ferris, 895 So.2d 540 (Fla. 5th DCA 2005); City of Dania Beach v. Konschnik, 763 So.2d 555 (Fla. 4th DCA 2000). To obtain a temporary injunction, the party seeking the injunction must establish that: (1) irreparable injury will result if the injunction is not granted, (2) there is no adequate remedy at law, (3) the party has a clear legal right to the requested relief, and (4) the public interest will be served by the temporary injunction. Provident Management Corp. v. City of Treasure Island, 796 So.2d 481, 485 n. 9 (Fla.2001); Animal Rights Foundation of Florida, Inc. v. Siegel, 867 So.2d 451 (Fla. 5th DCA), rev. denied, 879 So.2d 624 (Fla.2004).

Generally a trial court's denial or granting of a temporary injunction is subject to an abuse of discretion standard of review. Banyan Lakes Home Owners Ass'n, Inc. v. School Dist. of Palm Beach County, Florida, 823 So.2d 247 (Fla. 1st DCA 2002); Knox v. District School Bd. of Brevard, 821 So.2d 311 (Fla. 5th DCA 2002). The party appealing the denial of a temporary injunction carries a heavy burden to demonstrate that the court's ruling was clearly improper. Id.

In this case, DiChristopher failed to establish that the trial court abused its discretion in dismissing and denying his request for a temporary injunction. Other jurisdictions have held temporary injunctions are not available in cases such as this because the property owner has an adequate remedy for damages through an inverse condemnation action. Oliver v. University of Mississippi, 2004 WL 1778415 (N.D.Miss. June 14, 2004) (preliminary injunctive relief to stay construction and implementation of airport expansion was inappropriate because, in the context of inverse condemnation and eminent domain matters, monetary damages are an adequate remedy); Board of County Com'rs of Reno County v. Asset Management and Marketing L.L.C., 28 Kan. App.2d 501, 18 P.3d 286

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Bluebook (online)
908 So. 2d 492, 2005 WL 1364550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dichristopher-v-board-of-county-comrs-fladistctapp-2005.