New Port Largo, Inc. v. Monroe County

985 F.2d 1488, 1993 WL 52521

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 17, 1993
• Docket: Nos. 90-5091, 90-5327
• Status: Published

Opinions

PER CURIAM:

The principal issue presented by these consolidated appeals is whether the district court erred in granting appellee’s motion for summary judgment by applying the wrong tolling doctrine to appellant New Port Largo, Inc.’s (NPL) temporary regulatory takings claims, thereby holding the claims barred by the applicable statute of limitations. NPL sold the subject property two years after the enactment of the allegedly infringing regulation. The district court, observing that the regulation could cause NPL no injury thereafter, held that the applicable statute of limitations ran from the date NPL sold the property. NPL contends that the statute of limitations was tolled until the state court, in passing on the validity of the regulation, declared the regulation invalid. Based on Corn v. City of Lauderdale Lakes, 904 F.2d 585 (11th Cir.1990) (Com III),1 we conclude that the district court erred. Accordingly, we vacate the district court’s judgment and remand the case for further proceedings.²

I.

A.

In August 1968, the State of Florida sold a parcel of submerged land located on Key Largo’s Atlantic coast to a private trust.³ In December 1972, after the private trust filled in and prepared the land for residential construction, the Monroe County Planning and Zoning Department (the Zoning Department) zoned the property for residential duplex use (RU-2).

In September 1979, NPL purchased the property from the private trust. In November 1979, appellee Monroe County (the County) filed an application with the Zoning Department to rezone the property from RU-2 to private airport use (PA). On January 24, 1980, the Zoning Department held a hearing on the proposed rezoning and subsequently approved the County’s application. NPL appealed the Zoning Department’s decision to the Monroe County Board of Commissioners (the Commission). On September 11, 1980, the Commission affirmed the Zoning Department’s decision.

On October 10, 1980, NPL filed a petition for a writ of certiorari in state circuit court alleging that the rezoning violated Florida law. NPL claimed that the County had not complied with the procedural requirements of its Major Development Project Ordinance, an ordinance that applies to rezon-ings which, as here, concern parcels of land greater than five acres. On September 9, 1982, during the pendency of its certiorari petition, NPL sold the property in question, conveying one-half undivided interests in fee simple both to TFW, Inc., a Florida corporation, and to a land trust administered by the First National Bank of South Miami. Neither of these purchasers intervened in the certiorari proceeding brought by NPL. In August 1985, NPL amended its petition to include a claim that the County had deprived NPL of its property “without offering compensation ... in violation of the constitutions and laws of the United States and of the State of Florida.” NPL also claimed that the rezoning did not comply with the dimensional requirements and safety regulations for a private airport. NPL asked the court to declare the rezoning invalid, to return the property to its RU-2 zone classification, and to provide any further relief the court deemed appropriate.

On January 2, 1986, the state court granted NPL’s petition to invalidate the rezoning ordinance. The court found that the County’s rezoning of the property to PA violated the dimensional requirements of a private airport zone, the County had not complied with the procedures of its Major Development Project Ordinance, and the rezoning “would deprive [NPL] of any reasonable use” of its property. Accordingly, the court declared invalid and quashed the County’s rezoning of the subject property. Because the court found that the County had acted in good faith in pursuing the rezoning, however, it did not award damages to NPL.⁴ Neither party sought appellate review of the court’s decision.

B.

On July 7, 1987, NPL brought this action in the United States District Court for the Southern District of Florida, seeking, among other forms of relief, just compensation for the alleged temporary regulatory “taking” of its property⁵ both under 42 U.S.C. § 1983 (1988), and directly under the Fifth Amendment as made applicable to the states by the Fourteenth Amendment.⁶ NPL alleged that the taking occurred when the County rezoned the property to a PA zone classification. The County filed a motion to dismiss all counts of the complaint asserting that NPL’s takings claims were barred by res judicata and by the statute of limitations. See New Port Largo, Inc. v. Monroe County, 706 F.Supp. 1507, 1511 (S.D.Fla.1988).

On November 21, 1988, the district court found that the state court had not rendered a final adjudication on NPL’s takings claims, and therefore rejected the County’s res judicata defense. Id. at 1512-13 & n. 3; see Corn III, 904 F.2d at 587 (res judicata defense based on state petition attacking the validity of ordinances did not preclude later claim for just compensation). In considering the County’s statute of limitations argument, the district court reasoned that all just compensation claims should be treated similarly, regardless of whether the claims allege a complete taking or a temporary regulatory taking. New Port Largo, 706 F.Supp. at 1516-17. The court opined that in all actions to rectify the government’s taking of private property, the applicable “statute of limitations runs from the time of [the government’s] appropriation.” Id. at 1516. The court suggested that the statute of limitations can be tolled only if the government continues to violate the law by new acts of appropriation.⁷ Id. at 1517.

Utilizing this “continuing wrong” tolling doctrine, the court initially held that the last act of appropriation by the County occurred on April 9, 1985, when the state district court of appeal finally quieted title to the subject property in NPL.⁸ Id. at 1518. After holding that the applicable statute of limitations in takings actions runs for four years,⁹ here until April 9, 1989, the district court found that NPL’s filing of its takings claims on July 7, 1987, fell well within the statutory period. Id.

On July 17, 1989, the County filed a motion for summary judgment seeking reconsideration of the court’s determination that the last act of appropriation occurred on April 9, 1985, and arguing anew that NPL’s regulatory takings claims were barred by the statute of limitations. Utilizing the district court’s tolling doctrine, the County contended that NPL’s sale of the subject property on September 9, 1982, precluded any tolling of the statute of limitations beyond that date by additional wrongful acts of appropriation by the County. As viewed by the County, NPL’s action accrued on September 9, 1982, and the appropriate statute of limitations for NPL’s action ran out four years later, on September 9,1986, almost a year prior to the filing of NPL’s claims in district court on July 7, 1987. The county concluded that NPL’s claims were time-barred. The district court, adopting the County’s argument, granted the County’s motion for summary judgment on December 22, 1989.¹⁰ NPL appealed, No. 90-5091, and the County cross-appealed the district court’s denial of attorneys’ fees, No. 90-5327.

II.

Our review of the applicable statute of limitations doctrine is a question of law subject to de novo review. Atlantic Land & Improvement Co. v. United States, 790 F.2d 853, 857 (11th Cir.1986). The determination of the accrual date of a federal regulatory takings claim depends on the occurrence of two events. First, state judicial authorities must make a final determination on the status of the subject property affected by the zoning ordinance. Corn III, 904 F.2d at 588 (holding that a regulatory takings claim is not mature until a state appellate court affirmed issuance of mandamus invalidating zoning ordinance); Norco Constr., Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir.1986) (finding that a just compensation claim matures only after “planning authorities and state review entities make a final determination on the status of the property”). But cf. Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 192-93, 105 S.Ct. 3108, 3119-20, 87 L.Ed.2d 126 (1985) (holding that a takings claim ripens after final determination by the initial decisionmaker). Second, the property owner must be denied an adequate postde-privation remedy. Williamson, 473 U.S. at 195, 105 S.Ct. at 3121. For statute of limitations purposes, both events are necessary for the accrual of a property owner’s takings claim.

First, if NPL had remained the owner of the subject property, then its takings claims could not have accrued for purposes of the statute of limitations until the state judicial authorities had made a final determination on the status of the property. See Corn III, 904 F.2d at 588. In the instant case, the state circuit court entered a final judgment on January 2, 1986, invalidating the County’s rezoning of the property. The parties did not appeal. The state circuit court’s judgment, therefore, was the state’s final determination on the status of the subject property. See id.

Second, NPL must show that the state denied it adequate procedures through which NPL could seek compensation for the alleged taking. “[T]he State’s action is not ‘complete’ in the sense of causing a constitutional injury ‘unless or until the State fails to provide an adequate postde-privation remedy for the property loss.’ ” Williamson, 473 U.S. at 195, 105 S.Ct. at 3121 (quoting Hudson v. Palmer, 468 U.S. 517, 532 n. 12, 104 S.Ct. 3194, 3203 n. 12, 82 L.Ed.2d 393 (1984)). At the time of the state circuit court’s final judgment,¹¹ Florida courts did not recognize damages claims arising from regulatory takings. See Dade County v. National Bulk Carriers, Inc., 450 So.2d 213, 216 (Fla.1984).¹² Florida law, therefore, provided no postdeprivation remedy for NPL’s claimed deprivations.

Assuming NPL’s continuous and uninterrupted ownership of the land, NPL’s claims would have accrued on January 2, 1986, the date of the final judgment. At that time, both events required by Williamson to establish accrual of the takings claims had occurred. Applying Corn III, no matter which statute of limitations period urged by the parties governs the claims, NPL timely filed its takings claims in district court on July 7, 1987.¹³

The unique feature of this case is, however, that NPL sold its property three and one-half years before the state circuit court reached a final determination on the status of the subject property. The district court reasoned that this sale ended the toll on NPL’s otherwise properly tolled claims because no new appropriation of the property could befall NPL after the date of sale. The district court’s analysis therefore assumes, for purposes of the statute of limitations, that the date of sale determined the accrual date of NPL’s claims.¹⁴

Corn III’s approach to tolling the statute of limitations in regulatory takings cases, however, compels the opposite conclusion. First, the state court allowed NPL’s state claims to proceed to a final judgment. This necessarily implies that NPL demonstrated sufficient injury-in-fact to litigate the scope and legality of the County’s rezoning of the subject property.

Second, under Corn III, takings claims can accrue, if ever, only after the state judiciary’s final determination on the status of the subject property. Corn III, 904 F.2d at 588. NPL’s injury may have ended when it sold the property, but, under Corn III, NPL’s claims did not accrue until the state proceedings had concluded.

We do not hold that the sale of the property in this case has no relevance to NPL’s takings claims. The sale may prove relevant to a determination of the amount of compensation that would be “just” if NPL does establish that it is entitled to compensation for the taking of its property. Rather, we hold today that the state’s invalidation of the zoning ordinance, not NPL’s sale of the property, determines of the accrual date of NPL’s action.

III.

For the foregoing reasons, we find that NPL’s temporary regulatory takings claims were tolled until January 2, 1986, when the state circuit court invalidated the County’s rezoning of the subject property. NPL’s claims are not time-barred. Accordingly, we vacate the district court’s judgment and remand this case for further proceedings.

VACATED and REMANDED.

1 . Issues resolved by prior panels of this court are binding on subsequent panels. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). Corn III is this circuit’s only decision addressing the accrual date of a just compensation claim, and we are bound by it.

2 . On cross-appeal, the County claims that the district court abused its discretion in denying its claim for attorneys’ fees under 42 U.S.C. § 1988. The County’s proffered support found in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22, 98 S.Ct. 694, 700-01, 54 L.Ed.2d 648 (1978), however, is its own undoing. The County concedes that for a party to receive attorneys’ fees under section 1988 it must be the prevailing party and, further, the nonprevailing party’s claim must be "frivolous, unreasonable, or without foundation_" Id. at 421, 98 S.Ct. at 700. Given that we remand this case, it is obvious that the County has not satisfied either requirement.

Should we hold today that NPL’s takings claims are not time-barred, both parties ask this court to decide NPL's takings claims, which were not reached below, and a host of related issues necessary to resolve those claims. These issues run the gamut from deciding whether there was a “taking” in this case to whether the subsequent purchasers properly assigned their takings claims to NPL on July 24, 1989, and, if so, whether the statute of limitations has run on those claims. Although a final judgment has been entered, and it is therefore permissible for this court to address the merits of the takings issue on appeal, we note that the pretrial stipulation, "Statement of Issues of Fact Which Remain to Be Litigated” ¶ 24, identifies the takings issue as a question of fact. We decline the parties’ invitation to decide these factual issues. By remanding, we leave these issues to the district court.

3 .The brief statement of the facts in the text presents only those facts pertinent to the issues presented on appeal. A full recitation of the parties' interaction is contained in the district court’s November 21, 1988 opinion. See New Port Largo, Inc. v. Monroe County, 706 F.Supp. 1507 (S.D.Fla.1988).

4 . See Corn III, 904 F.2d at 586-87 (“we note[] that Florida courts recognize[ ] no money-damage claims for ‘good faith, albeit confiscatory, zoning activities’”) (quoting Corn v. City of Lauderdale Lakes, 816 F.2d 1514, 1519 (11th Cir.1987) (Corn II)).

5 . In First English Evangelical Lutheran Church v. City of Los Angeles, the Supreme Court held that the invalidation of a zoning ordinance, "though converting the [regulatory] taking into a ‘temporary’ one, is not a sufficient remedy to meet the demands of the Just Compensation Clause,” 482 U.S. 304, 319, 107 S.Ct. 2378, 2388, 96 L.Ed.2d 250 (1987), and held that "no subsequent action of the government can relieve it of the duty to provide compensation for the period during which the taking was effective,” id. at 321, 107 S.Ct. at 2389.

6 . We distill from NPL’s artless pleadings, drawn in "shotgun” fashion, a Fifth Amendment claim asserted through the Fourteenth Amendment’s Due Process Clause.

As the court read it, NPL’s complaint sought relief in eleven separate counts against twenty-nine defendants.

The first three counts are for violations of the Federal Civil Rights Acts, with Count I alleging a violation of 42 U.S.C. § 1983, Count II alleging a violation of 42 U.S.C. § 1985, and Count III alleging a violation of 42 U.S.C. § 1986. The remaining counts are pendant [sic] state law claims, with Count IV alleging an unjust taking, Count V asserting an abuse of process claim, Count VI a malicious prosecution claim, Count VII a disparagement of title claim, Count VIII a tortious interference claim, Count IX an intentional infliction of emotional stress [sic] claim, Count X a negligent infliction of emotional stress [sic] claim, and Count XI a broad-based conspiracy claim.

New Port Largo, 706 F.Supp. at 1511. Through a joint stipulation of the parties, see id. at 1511 n. 2, and the district court's order of November 21, 1988, id. at 1524-25, all claims, except for count I as to the defendant Monroe County, were dismissed. The district court, however, granted NPL leave to amend counts IV, VII, IX, X and XI. Id. at 1525. NPL only amended count IV, restating its claim under the Fifth Amendment’s Takings Clause. Additional voluntary and court-ordered dismissals left only one plaintiff, NPL, one defendant, Monroe County, and two counts, count I, the 42 U.S.C. § 1983 claim, and count IV, as amended, the federal takings claim. These appeals, brought pursuant to 28 U.S.C. § 1291 (1988), address only the dismissal on December 22, 1989, of the two remaining claims as time-barred, see infra part II, and the district court's denial of Monroe County’s motion for an award of attorney’s fees pursuant to 42 U.S.C. § 1988 (1988), see supra note 1.

7 . The district court termed this tolling doctrine the “continuing wrong” doctrine, New Port Largo, 706 F.Supp. at 1515, and stated:

[t]his court holds that the focus of the continuing wrong doctrine should be on the defendants’ purported wrongful activities, and not upon the plaintiffs’ alleged suffering. Accordingly, if the defendants’ activities constitute a continuing or additional violation of the law, then the doctrine applies; however, if the defendants' activities do not constitute a continuing violation, then the doctrine does not apply, irrespective of the fact that the plaintiffs’ harm from the defendants['] initial violation may continue.

Id. at 1516.

8 . Monroe County v. New Port Largo, Inc., 467 So.2d 757 (Fla.Dist.Ct.App.1985).

9 . In finding that NPL’s takings claims have a four-year statute of limitations, the district court applied Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). See New Port Largo, 706 F.Supp. at 1514. In Wilson, the Supreme Court first enunciated the doctrine that requires federal district courts to apply the most appropriate or most analogous state statute of limitations to actions under 42 U.S.C. § 1983. Wilson, 471 U.S. at 266-68, 105 S.Ct. at 1942-43. The court held that the most analogous state statute of limitations was the limitations period for personal injury. Id. at 276, 105 S.Ct. at 1947. But see Byrd v. MacPapers, Inc., 961 F.2d 157, 159 n. 1 (11th Cir.1992), which cites Reed v. United Transportation Union, 488 U.S. 319, 323-24, 109 S.Ct. 621, 624-25, 102 L.Ed.2d 665 (1989), as recognizing a narrow exception to Wilson when a “more closely analogous federal statute of limitations exists that would better serve the federal policy interests involved.”

Subsequently, the Supreme Court applied the same analysis to 42 U.S.C. § 1981 actions. See Goodman v. Lukens Steel Co., 482 U.S. 656, 660-62, 107 S.Ct. 2617, 2620-21, 96 L.Ed.2d 572 (1987). The circuits soon followed suit and applied this approach to takings claims brought directly under the Constitution, see, e.g., Bieneman v. City of Chicago, 864 F.2d 463, 467-70 (7th Cir.1988), cert. denied, 490 U.S. 1080, 109 S.Ct. 2099, 104 L.Ed.2d 661 (1989), and to tort actions brought directly under the Fourth Amendment (Bivens actions), see, e.g., Chin v. Bowen, 833 F.2d 21, 23-24 (2d Cir.1987); McSurely v. Hutchison, 823 F.2d 1002, 1005-06 (6th Cir.1987), cert. denied, 485 U.S. 934, 108 S.Ct. 1107, 99 L.Ed.2d 269 (1988). But cf. Gibson v. United States, 781 F.2d 1334, 1342 n. 5 (9th Cir.1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979 (1987).

Although Florida has no personal injury statute of limitations per se, the district court held that the four year limitations period found in Fla.Stat. § 95.1 l(3)(a) (negligence), (o) (intentional tort), and (p) ("[ajny action not specifically provided for in these statutes”) (1989 & Supp. 1990), was the most appropriate to apply to NPL’s takings claims because these actions were the most analogous state actions to a claim for personal injury. New Port Largo, 706 F.Supp. at 1514-15.

10 . The court stated:

NPL’s claims against Monroe County for harm NPL sufferred [sic] while it owned the property began to run on September 9, 1982 under the applicable statute of limitations. NPL had four years within which to file its claims based on the harm done to it while it held the property — until September 9, 1986. On July 7, 1987, NPL filed its complaint in this action. This filing occurred ten-months late. NPL’s claims are time-barred.

11 . Williamson stated that the Just Compensation Clause of the Fifth Amendment only requires “that a reasonable, certain and adequate provision for obtaining compensation exist at the time of the taking. ” 473 U.S. at 194, 105 S.Ct. at 3120 (references and internal quotations omitted) (emphasis added); see also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016, 104 S.Ct. 2862, 2879-80, 81 L.Ed.2d 815 (1984).

12 .Eleventh Circuit panels disagree as to whether Florida now recognizes a cause of action for damages wrought by regulatory takings. Compare Lake Lucerne Civic Ass'n v. Dolphin Stadium Corp., 878 F.2d 1360, 1370 (11th Cir.1989) (no cause of action), cert. denied, 493 U.S. 1079, 110 S.Ct. 1132, 107 L.Ed.2d 1038 (1990), A.A. Profiles, Inc. v. City of Ft. Lauderdale, 850 F.2d 1483, 1486-88 & n. 3 (11th Cir.1988) (same), cert. denied, 490 U.S. 1020, 109 S.Ct. 1743, 104 L.Ed.2d 180 (1989), and Corn II, 816 F.2d at 1520 (same) with Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1542 (11th Cir.) (citing Joint Ventures, Inc. v. Department of Transp., 563 So.2d 622, 622 (Fla.1990), as recognizing inverse condemnation action), cert. denied, — U.S. -, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991); see also Villas of Lake Jackson, Ltd. v. Leon County, 796 F.Supp. 1477, 1481-83 (N.D.Fla.) (recognizing Corn II, but following Executive 100); Barima Inv. Co. v. United States, 771 F.Supp. 1187, 1189 (S.D.Fla.1991), aff’d, 959 F.2d 972 (11th Cir.1992).

Similarly, Florida District Courts of Appeal have not settled on a single rule. Compare Monroe County v. Gonzalez, 593 So.2d 1143, 1145 (Fla.Dist.Ct.App.1992) (finding inverse condemnation remedy), Orlando/Orange County Expressway Auth. v. W & F Agrigrowth-Fernfield, Ltd., 582 So.2d 790 (Fla.Dist.Ct.App.) (axiomatic that inverse condemnation exists under United States Constitution), review denied, 591 So.2d 183 (1991) and Glisson v. Alachua County, 558 So.2d 1030, 1035 (Fla.Dist.Ct.App.) review denied, 570 So.2d 1304 (Fla.1990) with Lee County v. Morales, 557 So.2d 652, 656 (Fla.Dist.Ct.App.), (without reference to First English, applied National Bulk Carriers to reject inverse condemnation claim), review denied, 564 So.2d 1086 (Fla.1990).

13 . On appeal, NPL asks us to apply a seven-year statute of limitations to its takings claims, arguing that a claim for the taking of property is most analogous to a state claim for adverse possession. See Fla.Stat. § 95.12 (real property actions). Because we find that NPL’s action was tolled until the state circuit court's final judgment was entered on January 2, 1986, the action was timely under either appellant’s proposed statute of limitations or appellee's adoption of the district court’s approach. See supra note 9 and accompanying text. Accordingly, we decline to decide which statute of limitations applies to this action.

14 . The Supreme Court never has addressed directly the effect of the sale of property on the accrual date of a takings claim. See Pennell v. City of San Jose, 485 U.S. 1, 8 n. 4, 108 S.Ct. 849, 855 n. 4, 99 L.Ed.2d 1 (1988) (declining to determine whether appellant’s sale and repurchase of property affected his standing).