LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Supremes Give with One Hand and Take with the Other - or Why Citrus Canker Litigation Will Be Back Again

The latest round of the citrus canker wars was unresolved by the Florida Supreme Court on April 14 when it issued this opinion. The Supremes overturned the 3d DCA's opinion, which basically held that because the Legislature had determined that all trees within a 1900 foot radius of an infected tree should be considered infected, those trees had no value and no taking resulted from their destruction.

But the court did not reverse the portion of the lower court ruling that held that the aggrieved landowners did not have an inverse condemnation claim.

Instead the court ruled that a deeply flawed and subject-to-funding statutory provision for compensating homeowners reached back to provide an avenue for compensation. It also interpreted the statute to provide greater-than-statutory compensation where a judge determined the value of taken trees.

But it did not hold that the statute had to provide full and fair compensation - which under Florida's constitution means that if your property is taken, your attorney's fees (and experts) get covered. That flat out means that the majority opinion is internally contradictory, holding that the trees weren't "of no value" (and therefore were taken), but not providing the constitutionally mandated remedies for takings - full compensation, including attorneys' fees.

Pariente concurred and claimed that this statute met the Haire test that required "just and fair" compensation. She also claimed that the homeowners were better off with a statutory remedy than constitutional inverse condemnation because they wouldn't have to prove a taking against nuisance and "imminent danger" defenses. Essentially, Pariente is saying that if the Legislature confesses a taking and doesn't make you litigate the entire case (but does make you litigate your damages), it can dispense with the need to provide attorney's fees - even if the result is that you'd have to spend more in attorney's fees than you'd get in damages.

Lewis concurred in the result only, and would have held that the landowners had a constitutional inverse condemnation claim. He's on the right side here, but not speaking out strongly enough.

Quince dissented, claiming that the majority twisted the statute to provide relief that wasn't there and that wasn't constitutionally acceptable. She would have allowed an inverse condemnation claim. She didn't mention fees directly, but clearly is disturbed by the way tha the majority is allowing a limited statutory right to displace a more complete constitutional right.

We're going to see this come back, for two reasons. One, there's no obligation under the statute to fund the awards, so a bunch of people may get judgments that they can't collect. If this is a taking, then that's not acceptable. Two, there's no statutory provision for attorneys fees in this case. Courts are going to deny them, and the whole issue will wend its way back to the Supreme Court to resolve the resulting constitutional issue.

The entire mess is like the nasty 1983/1988 decisions that hold that you can't get attorney's fees in those cases where the damages are just nominal. Essentially the courts have been holding that if a violation of your rights is worth less than the cost to fight for them, you don't get your attorney's fees. In other words, the government can violate your rights all it wants to as long as the damages aren't above the cost of the fees to object.

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.