Richard E. Warner v. City of Marathon

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 8, 2017
• Docket: 16-10086
• Status: Unpublished

Opinion

Case: 16-10086 Date Filed: 12/08/2017 Page: 1 of 15

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-10086 Non-Argument Calendar ________________________

D.C. Docket No. 4:14-cv-10071-JLK

RICHARD E. WARNER, as Co-Personal Representatives of the Estate of Joseph Ardolino II, JOHN W. PARENTE, as Co-Personal Representatives of the Estate of Joseph Ardolino II, JOSEPH E. ARDOLINO, individually,

Plaintiffs - Appellants,

versus

CITY OF MARATHON, a political subdivision of the State of Florida, MICHAEL CINQUE, individually and as a City of Marathon Official, RALPH LUCIGNANO, individually and as a City of Marathon Official, THE STUFFED PIG, INC., a Florida corporation, CVS, INCORPORATED,

Defendants - Appellees. Case: 16-10086 Date Filed: 12/08/2017 Page: 2 of 15

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(December 8, 2017)

Before TJOFLAT, WILLIAM PRYOR, and JORDAN, Circuit Judges.

PER CURIAM:

Richard E. Warner and John W. Pariente—co-personal representatives of the

Estate of Joseph Ardolino II—and Mr. Ardolino’s son, Joseph E. Ardolino, appeal

the district court’s order dismissing their Third Amended Complaint against the

City of Marathon, Michael Cinque, Ralph Lucignano, the Stuffed Pig, Inc., and

CSV, Inc., as well as the district court’s order denying their motion for

reconsideration. Upon review of the record and the parties’ briefs, we affirm in

part, vacate in part, and remand with instructions to the district court.

I

Because we write for the parties, we assume their familiarity with the

underlying record and set out only what is necessary to resolve this appeal. We set

out the facts as set forth in the Third Amended Complaint. We accept the

allegations in the complaint as true, and construe them in the light most favorable

to the plaintiffs. See Leib v. Hillsborough Cty. Pub. Transp. Comm’n, 558 F.3d

1301, 1305 (11th Cir. 2009).

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A

The underlying complaint in this case is centered on a property known as the

Overseas Property, which was owned by Mr. Ardolino before he passed away in

2005. The property operated as a package liquor store and cocktail lounge, and

housed rental apartments. It is located in Marathon, Florida.

When Mr. Ardolino passed away, his Estate became the sole owner of the

property and its liquor license. Until 2008, the Estate leased the property. The

Estate then attempted to improve the property, lease it, and sell it. The Estate hired

a real estate agent, Brenda Tarella, to help sell the property.

In March of 2009, Ms. Tarella contacted the City’s Planning Director to ask

whether the property had any encumbrances, particularly with regard to the

property’s intended uses as a package liquor store and lounge. Unbeknownst to the

Estate, the City had passed an ordinance in October of 2006 which prohibited the

sale of package liquor within 1,500 feet of any school or existing package liquor

store. The property purportedly operated the only package liquor store that fit this

description.

In response to Ms. Tarella’s inquiry, the City allegedly did not communicate

that the property was subject to the ordinance. Instead, the City allegedly

submitted a letter detailing the property’s transferable building rights without

mention of the ordinance.

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In September of 2009, the Estate received a $1 million offer from interested

buyers to purchase the property and its license. The buyers ultimately withdrew

their offer after the property was appraised. The same buyers later offered the

Estate $500,000 for the property, which the Estate declined.

Thereafter, in June of 2011, the Estate received a $750,000 offer for the

property. It was then that the Estate found out about the zoning limits on the

property from the City’s Planning Director. The Planning Director drafted a letter

in July of 2011 stating that the property’s use as a lounge and liquor package store

did not conform to the City’s land regulations, and asserting that because the

property had not been operating as a lounge, it had also lost certain use rights. As

a result, the property could not be used as a package store or liquor lounge.

Nevertheless, the City stated that the package store could be reestablished through

a variance and the liquor license could also be reobtained. The $750,000 offer was

ultimately withdrawn.

The Estate objected to the letter’s assertions and claimed that it had received

no notice of the ordinance. The Estate’s efforts to contest the City’s prohibitions

on the property led it through the City’s administrative appeals process and

ultimately to a Florida circuit court on a writ of certiorari. The Florida court

ultimately granted the Estate relief and reversed the application of the ordinance as

to the property in June of 2012.

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The property was eventually sold in 2013 for $475,000, but not without

alleged interference from the City. The City purportedly interfered with the sale of

the property by asserting administrative challenges and filing a title objection. As

a result, the Estate sought relief in the probate court, where it was successful.

According to the Estate and Mr. Ardolino’s son (the plaintiffs), after

Mr. Ardolino’s passing, City building officials repeatedly trespassed on the

property and harassed the Estate’s staff, completed inspections and “red-tagged”

the property without warning or justification. They also contacted the Florida

Department of Alcoholic Beverage & Tobacco to allegedly interfere with the

Estate’s license. 1

B

In August of 2014, the plaintiffs filed suit in state court against the City of

Marathon, Mr. Cinque, Mr. Lucignano, the Stuffed Pig, Inc., and CSV, Inc.,

alleging several causes of action.2 The case was removed to federal court upon

the City of Marathon’s motion. After two amendments to their complaint, the

plaintiffs filed the Third Amended Complaint, which is at issue here.

1 The complaint also alleges that a sewer line was improperly built across the property. Because the facts related to the sewer line are not central to this appeal or our determination, we do not discuss them here. 2 The Stuffed Pig is a business adjacent to the property. Mr. Cinque allegedly has an interest in The Stuffed Pig. Similarly, CSV is a company that owns a trailer park near the property, which Mr. Cinque also has an interest in. Mr. Cinque is purportedly the “owner or manager” of The Stuffed Pig and the trailer park property. 5 Case: 16-10086 Date Filed: 12/08/2017 Page: 6 of 15

The Third Amended Complaint generally alleges that Mr. Cinque and

Mr. Lucignano, who were City officials for portions of the relevant period,

conspired with the City to negatively impact the value of the property so as to

discourage potential buyers from purchasing the property for Mr. Cinque and

Mr. Lucignano’s private benefit. Mr. Cinque allegedly served on the City’s

Planning Commission and City Council from 2006 to 2013. At some point,

Mr. Cinque also served as mayor. Similarly, Mr. Lucignano allegedly served as a

member of the City’s Planning Commission from 2009 to 2014. The plaintiffs

brought claims against Mr. Cinque and Mr. Lucignano in their individual

capacities and as city officials.

The Third Amended Complaint asserted several claims: an as applied

takings claim against the City (Count I); a 42 U.S.C. § 1983 claim against the City

(Count II); a § 1983 claim against Mr. Cinque (Count III); a § 1983 claim against

Mr. Lucignano (Count IV); a tortious interference with contract rights claim

against the City, Mr. Cinque, and Mr. Lucignano (Count V); a tortious interference

with advantageous business relationships claim against the City, and against

Mr. Cinque and Mr. Lucignano “for conspiring to do so” (Count VI); trespass and

unjust enrichment claims against Mr. Cinque, CSV, and the Stuffed Pig (Count

VII); a conspiracy claim against the City, Mr. Cinque, and Mr. Lucignano (Count

VIII); and a negligence claim against the City under Fla. Stat. § 768.28 (Count IX).

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All of the defendants filed motions to dismiss the Third Amended

Complaint. The district court dismissed the complaint with prejudice after

conducting a hearing. In its order, the district court stated that “[e]ven a cursory

review reveals that the Complaint runs afoul of Rule 8,” D.E. 67 at 6, and provided

substantive reasons for dismissing each of the claims. The plaintiffs filed a motion

for reconsideration, which the district court denied. This appeal followed.

II

We review de novo the district court’s grant of a motion to dismiss for

failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Leib, 558 F.3d at 1305.

We review a district court’s denial of a motion for reconsideration for an abuse of

discretion. See Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th Cir.

2001).

III

Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement

of the claim showing that the pleader is entitled to relief” so as to “give the

defendant fair notice of what the claim is and the grounds upon which it rests.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations

omitted). “To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at

570).

On appeal, the plaintiffs contest the district court’s dismissal of Counts I, II,

III, IV, V, and VIII of the complaint. We address their arguments in turn.

The plaintiffs first argue that the district court erred in dismissing their

takings claim. The district court dismissed Count I of the complaint on the ground

that the claim was not ripe, and that the actions challenged did not deprive the

Estate of all or substantially all of the property’s beneficial use. We review the

district court’s ripeness determination de novo. See Reahard v. Lee Cty., 30 F.3d

1412, 1415 (11th Cir. 1994). 3

The plaintiffs assert that the district court erroneously dismissed their claim

on ripeness grounds because they availed themselves of administrative and state

court remedies, as indicated by the district court’s reference to their use of post-

deprivation remedies in dismissing their procedural due process claims. And they

argue it would have been futile for them to seek a variance in any event. They also

argue that they should have the opportunity to demonstrate that the rezoning of the

property affected the property’s value. 3 Count I also appears to assert a takings claim under Article X § 6 of the Florida Constitution and a procedural due process claim. Although we dismiss Count I on ripeness grounds, we note that we disapprove of this type of drafting. See Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1322–23 (11th Cir. 2015) (“The third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief.”). 8 Case: 16-10086 Date Filed: 12/08/2017 Page: 9 of 15

A federal court has jurisdiction to review a federal takings claim for money

damages stemming for a regulatory taking of property when the plaintiff can

establish that (1) “the government entity charged with implementing the

regulations has reached a final decision regarding the application of the regulations

to the property at issue,” Williamson Cty. Reg’l Planning Comm’n v. Hamilton

Bank of Johnson City, 473 U.S. 172, 186 (1985), and (2) there is no adequate state

remedy to obtain just compensation, or an adequate remedy exists but the plaintiff

has been denied relief, see id. at 194–95. See also Reahard, 30 F.3d at 1415–17.

As a result, “for [a just compensation] claim to be ripe for adjudication, the

landowner must overcome two hurdles: the final decision hurdle and the just

compensation hurdle.” See id. at 1415 (internal citations omitted).

To the extent the plaintiffs assert that they can overcome the final decision

hurdle required to bring a takings claim in federal court, we agree that their state

court victory, which nullified the application of the ordinance to the property, is a

“final decision” for ripeness purposes. Although in most cases a “final decision”

has not been reached “until an aggrieved landowner has applied for at least one

variance,” Reahard, 30 F.3d at 1415, we conclude that the Estate effectively

sought a variance through the City’s appeals processes and its state court action.

The plaintiffs cannot, however, overcome the just compensation hurdle.

They did not allege in their complaint that Florida fails to provide an adequate

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procedure to obtain just compensation—nor could they. Florida does provide an

adequate procedure to obtain monetary relief through an inverse condemnation

claim. See Joint Ventures, Inc. v. Dep’t of Transp., 563 So. 2d 622, 627 (Fla.

1990) (“Inverse condemnation affords the affected property owner an after-the-fact

remedy, when there has already been a ‘taking’ by regulation . . . .”). See also

Reahard, 30 F.3d at 1417 (explaining that Florida courts have recognized an

inverse condemnation remedy since 1990). The plaintiffs also did not allege in

their complaint that they availed themselves of this remedy and were denied relief.

Instead, the plaintiffs seem to assert on appeal that the takings claim presented in

their complaint is their just compensation claim. Notwithstanding the possibility

that they were attempting to assert an inverse condemnation claim in Florida state

court before the case was removed to federal court, we cannot review the claim

until the plaintiffs have been denied relief by a Florida court. We therefore vacate

the district court’s order as it relates to Count I with instructions to dismiss the

claim without prejudice for lack of subject-matter jurisdiction. See Ga. Advocacy

Office, Inc. v. Camp, 172 F.3d 1294, 1299 (11th Cir. 1999) (explaining that a

dismissal on ripeness grounds is not an adjudication on the merits).

The plaintiffs next seem to argue that the district court improperly dismissed

their § 1983 claims (Counts II–IV). The district court ruled that they improperly

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pled their claims because they included “at least four distinct causes of action . . .

in each count.” D.E. 67 at 7. Notwithstanding this appropriate basis for

dismissing these claims, the district court made substantive rulings as to each of

the perceived claims. The plaintiffs do not contest the district court’s substantive

rulings and instead argue that the way they presented their claims was permissible

under the Federal Rules of Civil Procedure, and seek the opportunity to re-plead if

their alleged errors were merely technical.4

The plaintiffs’ failure to contest the substantive bases for the district court’s

dismissal of their § 1983 claims is fatal. “To obtain reversal of a district court

judgment that is based on multiple, independent grounds, an appellant must

convince us that every stated ground for the judgment against him is incorrect.”

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). As a

result, the district court’s judgment as to Counts II–IV must be affirmed. Id.

Moreover, we agree with the district court’s evaluation of the complaint.

Counts II–IV suffer from defects often criticized as emblematic of a “shotgun”

pleading. See, e.g., Weiland, 792 F.3d at 1321–23 (explaining the types of shotgun

pleadings). Counts II–IV disregard Federal Rule of Civil Procedure 10(b)’s

preference that discrete claims be pled in separate counts when doing so would 4 The plaintiffs also cite to the Federal Rules of Criminal Procedure to argue that they should be able to allege claims against multiple defendants in a single count. Aside from the fact that this is a civil case, Counts II–IV did not present claims against multiple defendants within each count, nor did the district court dismiss the claims on that basis, so we do not address this argument. 11 Case: 16-10086 Date Filed: 12/08/2017 Page: 12 of 15

facilitate the clear presentation of the issues, as it would here. As currently

drafted, it is difficult to discern which allegations refer to which claims. Counts

II–IV also inappropriately incorporate certain preceding counts. We have rejected

these drafting techniques before and do so here as well. See id. See also Anderson

v. Dist. Bd. of Trustees of Cent. Florida Cmty. Coll., 77 F.3d 364, 367 (11th Cir.

1996) (“Experience teaches that, unless cases are pled clearly and precisely, issues

are not joined, discovery is not controlled, the trial court’s docket becomes

unmanageable, the litigants suffer, and society loses confidence in the court’s

ability to administer justice.”).

C

The plaintiffs also argue that the district court erroneously dismissed their

tortious interference with contract rights claim (Count V) on absolute immunity

grounds. Specifically, they argue that Mr. Lucignano was not a public official

when the property was rezoned and when the conspiracy between Mr. Cinque 5 and

Mr. Lucignano began, so absolute immunity cannot apply to him. 6

5 The plaintiffs do not challenge the district court’s rulings that Mr. Cinque and the City are immune from suit under absolute immunity principles, so we consider any issue related to the district court’s immunity holdings as to these two defendants abandoned. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“Any issue that an appellant wants the Court to address should be specifically and clearly identified in the brief.”). Similarly, we note that the district court also dismissed Count VI on absolute immunity grounds, but the plaintiffs did not present argument as to Count VI. See id. 6 The plaintiffs also present arguments about qualified immunity, but the district court did not rely on qualified immunity to dismiss any claim. Similarly, the plaintiffs present arguments 12 Case: 16-10086 Date Filed: 12/08/2017 Page: 13 of 15

We cannot evaluate whether absolute immunity applies to Mr. Lucignano

because the plaintiffs have effectively failed to argue the doctrine’s inapplicability.

Count V alleges that the City, Mr. Cinque, and Mr. Lucignano interfered with the

$1 million and $750,000 offers the Estate received from potential buyers to

purchase the property. The $1 million offer was allegedly received in September

of 2009 and withdrawn shortly thereafter, and the $750,000 offer was allegedly

received in June of 2011. Therefore, the fact that Mr. Lucignano was not a City

official when the property was rezoned or when the alleged conspiracy began is

irrelevant to the wrongs alleged in Count V. The acts alleged in Count V relate to

events that took place when Mr. Lucignano was a City official, and the plaintiffs

do not present any argument about why he should not be protected by absolute

immunity for those acts. As a result, we affirm. See Access Now, 385 F.3d at 1330

(“If an argument is not fully briefed . . . evaluating its merits would be improper . .

. .”).

D

The plaintiffs lastly argue that the district court erred in dismissing Count

VIII, which alleged that the City, Mr. Lucignano, and Mr. Cinque conspired to

commit the wrongs described in Counts II–VI. The district court dismissed Count

about sovereign immunity without connecting their contentions to any of the dismissed claims. We will not guess what the plaintiffs are attempting to take issue with on appeal. 13 Case: 16-10086 Date Filed: 12/08/2017 Page: 14 of 15

VIII on two bases: (1) the claim was barred by the intracorporate conspiracy

doctrine and (2) the underlying claims had been rejected so no conspiracy claim

could stand.7

On appeal, the plaintiffs argue that the intracorporate conspiracy doctrine is

inapplicable because Mr. Lucignano and Mr. Cinque were not City officials from

2006 to 2008. We do not need to decide whether the intracorporate conspiracy

doctrine applies because none of the claims underlying the conspiracy claim are

viable. “Under Florida law, the gist of a civil conspiracy is not the conspiracy

itself but the civil wrong which is done through the conspiracy which results in

injury to the Plaintiff.” Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1067

(11th Cir. 2007) (internal citations and quotation marks omitted). Here, Counts II

through IV do not survive, so none can “serve as the basis for a conspiracy claim.”

Id. As a result, we affirm the district court’s dismissal of Count VIII.

IV

We affirm the district court’s dismissal of Counts I, II, III, IV, V, and VIII of

the Third Amended Complaint. We nonetheless vacate the district court’s order as

to Count I because it is not yet ripe for review and remand for the district court to

issue an order of dismissal as to Count I in accordance with our ruling.

7 The complaint seems to state that Mr. Ardolino’s son only alleges a claim against the City, Mr. Lucignano, and Mr. Cinque for conspiring to commit the acts alleged in Counts V and VI. Our ruling is unaffected by this possibility. 14 Case: 16-10086 Date Filed: 12/08/2017 Page: 15 of 15

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.