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Florida Department of Agriculture and Consumer Services v. Dolliver

Florida Court of Appeals, Second District

November 13, 2019



          Appeal from the Circuit Court for Lee County; Keith R. Kyle, Judge.

          Wesley R. Parsons and Karen H. Curtis of Clarke Silverglate, P.A., Miami, for Appellants.

          Robert C. Gilbert of Grossman Roth Yaffa Cohen, P.A., Coral Gables; and Bruce S. Rogow and Tara Campion of Bruce S. Rogow, P.A., Fort Lauderdale, for Appellees.


         The Florida Constitution provides in what is commonly referred to as the "Takings Clause" that "[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner." Art. X, § 6(a), Fla. Const. Appellants, a class of homeowners in Lee County (the Lee Homeowners), have spent sixteen years fighting for their constitutional rights to payment of compensation for the taking of their property by the Florida Department of Agriculture and Consumer Services and the Florida Commissioner of Agriculture (the Department).

         In this stage of these unnecessarily protracted proceedings, the Lee Homeowners are pursuing enforcement of a 2014 final judgment for $13, 625, 249.09 that was entered following a jury trial, together with final judgments for attorney's fees and costs entered in their favor in 2015 and 2016. In 2016, this court affirmed the 2014 final judgment, Fla. Dep't of Agriculture & Consumer Servs. v. Dolliver, 209 So.3d 578 (Fla. 2d DCA 2016) (table decision), and the Department did not seek further review in the Florida Supreme Court. The Department also did not seek appellate review of the judgments for fees and costs.

         As a result of the Department's ongoing failure to pay the outstanding final judgments, the Lee Homeowners returned to court to enforce the judgments. Although the judgments have long been final and the Department claimed that it would be "happy to pay the three judgments," the Department asserted that it is unable to make payment until the legislature appropriates the funds as required by sections 11.066(3) and (4), Florida Statutes (2015). The Lee Homeowners responded that the Department has refused to take affirmative action to obtain an appropriation and has taken a position that has resulted in the governor vetoing a legislative appropriation that the Lee Homeowners had requested. Further, the Lee Homeowners argued that sections 11.066(3) and (4) are unconstitutional as applied.

         After an evidentiary hearing, the trial court entered a thorough order[1] that addressed at length the Takings Clause, the pertinent statutes, and the applicable case law, together with the evidence that the parties presented. The court determined that sections 11.066(3) and (4) are unconstitutional as applied and issued a writ of mandamus directing the Department to pay the judgments. As the court explained, "To essentially argue that the [Lee Homeowners] should just hope that someday, some year, the Legislature eventually will pass an appropriation to cover the judgments, and further that the governor finally will assent, while at the same time doing absolutely nothing to secure such an appropriation, is a specious argument." (Order p. 7) We agree with the trial court's well-reasoned decision and affirm.

         I. Introduction

         The question before this court is whether the trial court erred in declaring sections 11.066(3) and (4) unconstitutional as applied to the Lee Homeowners' takings judgments and in issuing a writ of mandamus compelling payment. Sections 11.066(3) and (4) provide as follows:

(3) Neither the state nor any of its agencies shall pay or be required to pay monetary damages under the judgment of any court except pursuant to an appropriation made by law. To enforce a judgment for monetary damages against the state or a state agency, the sole remedy of the judgment creditor, if there has not otherwise been an appropriation made by law to pay the judgment, is to petition the Legislature in accordance with its rules to seek an appropriation to pay the judgment.
(4) Notwithstanding s. 74.091, a judgment for monetary damages against the state or any of its agencies may not be enforced through execution or any common-law remedy against property of the state or its agencies, and a writ of execution therefor may not be issued against the state or its agencies. Moreover, it is a defense to an alternative writ of mandamus issued to enforce a judgment for monetary damages against the state or a state agency that there is no appropriation made by law to pay the judgment.

         Under section 11.066(3), a court may not require a state agency to pay a judgment for monetary damages absent an appropriation made by the legislature. In the event of nonpayment of a monetary judgment due to a lack of appropriation, the judgment creditor must petition the legislature for an appropriation. Id. Section 11.066(4) expressly prohibits the courts from issuing a writ of execution or using any common-law remedy against the state agency to enforce the monetary judgment. And, in the event a court issues an alternative writ of mandamus to compel payment, section 11.066(4) provides that the lack of an appropriation is a valid defense.

         The difficulty with these provisions is that despite the constitutional imperative in the Takings Clause, they give the legislature the sole discretion to decide whether and when to make an appropriation. And if an appropriation is made, it is subject to the governor's sole discretion to veto it. By doing so, application of these statutory provisions could subject payment of a takings judgment to the whim of the legislature and governor. And this could result in sections 11.066(3) and (4) effectively abrogating judgment creditors' constitutional rights to full compensation under the Takings Clause.

         II. Facts

         This action began in 2003 when the Lee Homeowners sued the Department for inverse condemnation for taking 33, 957 healthy citrus trees located on 11, 811 residential properties. The Department had taken the trees in the course of its efforts to eradicate citrus canker. In 2014, following a jury trial, the trial court entered a judgment awarding the Lee Homeowners $13, 625, 249.09 plus interest and a judgment awarding them $821, 993.12 in attorney's fees. The takings judgment was affirmed by this court. See Dolliver, 209 So.3d 578. This court also awarded the Lee Homeowners appellate attorney's fees, and the trial court entered a third judgment in the amount of $70, 892.50.[2]

         In the 2017 session of the Florida Legislature, the Lee Homeowners requested an appropriation to pay the judgments. The legislature passed a bill in the session that included such an appropriation. However, Commissioner Adam Putnam had made public statements suggesting that the Department was still challenging the judgments, and Governor Scott line-item vetoed the appropriation in apparent reliance on those statements on June 2, 2017.

         On June 8, 2017, the Lee Homeowners filed a petition for writ of mandamus or to declare sections 11.066(3) and (4) unconstitutional in the trial court. The court issued an alternative writ and held a hearing on the petition. In March 2018, the court entered an order that detailed at great length the evidence presented and contained extensive findings. It is not necessary to repeat the trial court's findings for the purposes of this opinion. We simply note that the court's factual findings are supported by the evidence.

         The court determined that the Lee Homeowners established the elements necessary for a writ of mandamus: (1) they have a clear legal right to payment of the judgments, (2) the Department has a legal duty to pay, and (3) they are without an adequate remedy at law because the legislature has not been able to successfully pass an appropriation resulting in payment. But the court also determined that, despite the Lee Homeowners' satisfaction of these elements, sections 11.066(3) and (4) precluded the court from issuing a writ of mandamus directing the Department to pay the judgments.

         The trial court then examined sections 11.066(3) and (4) and held that the statutes were unconstitutional as applied. Based on that conclusion, the court stated it would enter a writ of mandamus ordering the Department to immediately pay or arrange for payment of the three judgments. If the Department did not comply, the court would consider entering an order to show cause why the Department should not be held in contempt. Alternatively, the court would consider issuing a writ of execution. The court authorized the Lee Homeowners to conduct a deposition in aid of execution and submit to the court a list of the Department's properties that would satisfy the judgments. The court would review the list, conduct a duly noticed hearing, and decide which, if any, of the properties may be subject to a writ of execution.

         The writ of mandamus issued in April 2018. The Department filed this timely appeal of the March 2018 order and the April 2018 writ of mandamus. While the appeal has been pending, two more legislative sessions have passed without the appropriation of any funds for the takings judgments.

         III. Issues/Analysis

         A. The Department's Ability to Pay

         The Department asserts that the trial court erred in issuing a writ absent evidence that it had the present ability to pay the judgments. We recognize that the total inability to pay the judgments may preclude issuance of a writ of mandamus. See State v. Amos, 131 So. 122, 123 (Fla. 1930); State v. Tavares & G.R. Co., 82 So. 833, 835 (Fla. 1919); Conner v. Mid-Fla. Growers, Inc., 541 So.2d 1252, 1256 n.7 (Fla. 2d DCA 1989). However, the Department has not established that it lacks the ability to satisfy the judgments in full or in part. Instead, the Department's position is that it is not leg ...

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