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Filing # 131889313 E-Filed 08/02/2021 10:08:11 PM
IN THE CIRCUIT COURT, FOURTEENTH JUDICIAL CIRCUIT,
IN AND FOR WALTON COUNTY, FLORIDA
BURNEY L. REDDICK and his wife,
MINERVA L. REDDICK, Trustees
under the Burney L. Reddick Living Trust
Agreement dated 10-03-06 and as Trustees
under the Minerva L. Reddick Living Trust
dated 10-03-06,
Plaintiffs,
vs. Case No: 2018 CA 000572
FLORIDA DEPARTMENT OF
TRANSPORTATION, an agency
of State of Florida,
Defendant.
DEFENDANT FLORIDA DEPARTMENT OF TRANSPORTATION'S
ANSWER AND DEFENSES TO DEFENDANT’S STIPULATED AMENDED
COMPLAINT
Defendant FLORIDA DEPARTMENT OF TRANSPORTATION (“Department”), hereby
submits its Answer, General Denials, and Defenses to Plaintiffs’ Amended Complaint per the July
22, 2021 stipulation of amendment, and states:
ANSWER
1. Admitted for jurisdictional purposes only; otherwise denied.
2. Denied.
3. Without knowledge, therefore denied.
4. Admitted.
5. Denied.
Electronically Filed Walton Case # 18000572CAAXMX 08/02/2021 09:08:11 PM6. Admitted that there an agreement for Parcel 153.1, and that the agreement speaks
for itself; otherwise denied.
7. Admitted that Department extended drainage culverts pursuant to roadway
constructions plans that were made part of the agreement for Parcel 153.1; otherwise denied.
8. Without knowledge, therefore denied.
9. Denied.
COUNT I- INVERSE CONDEMNATION — DEPRAVATION OF RIPARIAN
RIGHTS
10. The responses to paragraphs numbered 1 to 9, inclusive, are incorporated as if fully
set forth.
11. Admitted to the nature of the alleged cause of action; otherwise denied.
12. Denied.
13. Denied.
14. Denied.
15. Denied.
16. Denied.
COUNT II - INVERSE CONDEMNATION — PHYSICAL TAKING
17. The responses to paragraphs numbered 1 to 9, 11, and 16 inclusive, are incorporated
as if fully set forth.
18. Denied for all subparts.
19. Denied for all subparts.
20. Denied.
21. Denied.The Department denies Plaintiff's requests for relief stated at the end of Count II of the
Amended Complaint.
22.
23.
COUNT Il] —-INJUNCTIVE RELIEF
Admitted to the nature of the alleged cause of action; otherwise denied.
The responses to paragraphs numbered 1 to 9, 12, and 18 a)-c) inclusive, are
incorporated as if fully set forth.
24.
25.
26.
27.
28.
29.
Denied.
Denied for all subparts.
Denied.
Denied.
Denied.
Denied.
The Department denies Plaintiff's requests for relief stated at the end of Count I of the
Amended Complaint.
GENERAL DENIAL
Any averment or allegation in the Complaint not specifically admitted is denied.
OBJECTION TO JURY TRIAL
Pursuant to section 73.071(3), Florida Statutes, the jury in an eminent domain trial is to
solely determine the amount of compensation due as of the date that title passes for the property
to the government. Any finding of liability for inverse condemnation is the province of the court
and must be determined at a Non-Jury Trial conducted by the court before the issue of
compensation may be submitted to a jury. Foster v. Gainesville, 579 So. 2d 774, f.n. 2 (Fla. 1st
DCA 1991); Sarasota-Manatee Airport v. Alderman, 238 So. 2d 678 (Fla. 2d DCA 1970); Tampa-Hillsborough County Expressway Auth. v. A.G.W.S. Corp., 608 So. 2d 52 (Fla. 2d DCA 1992)
quashed on other grounds 640 So. 2d 54.
DEFENSES TO THE COMPLAINT
The Department, alleges the following Defenses, and in support thereof, states as follows:
1. Plaintiffs are estopped from attaining compensable damages for the alleged
physical invasion of its property and alleged degradation of the channel/ditch because of lack of
notice given, or action taken, by Plaintiffs during the time of the alleged physical invasion and/or
tortious conduct.
2. Plaintiffs failed to exhaust administrative remedies in that they never sought any
enforcement action on the Department’s construction or environmental permits.
3. Plaintiffs have not suffered any permanent damages to their property because of the
alleged physical invasion of the property.
4. Plaintiffs have failed to mitigate their damages.
5. Any damages allegedly suffered by Plaintiffs are Damnum Absque Injuria, or that
the damages alleged by Plaintiffs are not recognized at law.
6. Any damages alleged by the Plaintiffs are consequential in relation to the road
project and are non-compensable.
7. Plaintiffs failed to join indispensable parties to this action. (to wit: the contractor or
any other party who may have constructed any alleged improvements on the plaintiff property and
in the channel/ditch; or any other entity who has an interest in the channel/ditch).
8. Plaintiffs have failed to state a cause of action since an inverse condemnation claim
can only be based upon actions which constitute a taking, and such taking must be specific as to a
date. The Amended Complaint fails to allege a specific date:a) when alleged physical invasion of the channel/ditch occurred;
b) when alleged physical invasion of his property occurred.
9. Plaintiffs’ claim for inverse condemnation is barred by the four-year statute of
limitations. Plaintiffs knew about, inspected all of the construction plans, negotiated compensation
from the Department for Highway 331 improvements, and/or any fill from the construction project
entered the channel/ditch more than 4 years prior to filing the pending suit.
10. The Department has complied with all necessary rules, policies, and statutory
standards in the design, construction, and maintenance of the subject road and all attendant
drainage facilities located near the subject property.
11. The project was built in substantial conformance with the plans which were made
part of the Parties’ agreement.
12. The alleged actions or inaction by the Department does not rise to the level of an
inverse condemnation and, at best, qualifies as tortious conduct.
13. Accord and Satisfaction. On or about July 29, 2008, defendant delivered to plaintiff
and plaintiff accepted from defendant money in full satisfaction of plaintiffs claim when the
parties negotiated the compensation for Parcel 153.1
14. The Plaintiffs failed to comply with the condition precedent to bringing a suit for
pollution of the wetlands and the channel/ditch as stated in in Section 403.412(2)(a) 2, Florida
Statutes.
15. The Plaintiffs can access the channel/ditch from their property, therefore continue
to have the same level of access to the subject channel/ditch and Plaintiffs’ access rights are not
diminished.16. The Plaintiffs’ interest in waterway navigation is the same as members of public.
The alleged injury or inconvenience sustained by Plaintiffs is the same in kind as that suffered by
the Public similarly situated, but different only in degree, and compensation is not recoverable.
17. The channel/ditch was not navigable in its natural state. The channel/ditch was
artificially improved to become navigable, and because of lack of maintenance it is merely
reverting to its natural state.
18. The lack of water or the water level variations are due to season and tidal influence.
19. The Department is not responsible for the abatement of pollutants and flows
entering its cross drain from offsite sources.
20. The Plaintiffs merely allege the property is damaged, not taken; the Florida
Constitution’s takings clause does not require compensation for property that is merely damaged,
but not taken.
21. Any physical invasion or construction material placed upon Plaintiffs’ property, or
flooding of the property, were not the result of conduct by, on behalf or, or at the direction of, the
Department.
22. — Injunctive relief is barred because a monetary award for Plaintiffs’ alleged injury is
an adequately remedy. Where a money judgment can be obtained an adequate remedy at law exists.
Mary Dee’s Inc. v. Tartamella, 492 So. 2d 815 (Fla. 4th DCA 1986). The plaintiffs did not suffer
irreparable harm, because their alleged loss is compensable by money damages. See Barclays
American Mortgage Corp. v. Holmes, 595 So. 2d 104 (Fla. 5 DCA 1992).
23. Any physical occupation was within the Department’s rights under its drainage
easement.Respectfully Submitted,
/s/William. E. Foster
WILLIAM E. FOSTER
Assistant General Counsel
Florida Bar No.: 95573
Florida Department of Transportation
605 Suwannee Street, MS 58
Tallahassee, Florida 32399-0458
william.foster@dot.state.fl.us
(850) 414-5265 (Phone)
(850) 414-5264 (Facsimile)
Counsel for Florida
Department of Transportation
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that pursuant to Fla. R. Jud. Admin 2.516, a true and correct
copy of the foregoing was furnished via E-Portal on August 2, 2021, that included the following:
William A. Fixel at wfixel@fixelwillis.com, fixelservice@fixelwillis.com, and James Stanley
Chapman at schapman@fixelwillis.com.
Respectfully Submitted,
/s/William. E. Foster
WILLIAM E. FOSTER
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Filing # 131889313 E-Filed 08/02/2021 10:08:11 PM IN THE CIRCUIT COURT, FOURTEENTH JUDICIAL CIRCUIT, IN AND FOR WALTON COUNTY, FLORIDA BURNEY L. REDDICK and his wife, MINERVA L. REDDICK, Trustees under the Burney L. Reddick Living Trust Agreement dated 10-03-06 and as Trustees under the Minerva L. Reddick Living Trust dated 10-03-06, Plaintiffs, vs. Case No: 2018 CA 000572 FLORIDA DEPARTMENT OF TRANSPORTATION, an agency of State of Florida, Defendant. DEFENDANT FLORIDA DEPARTMENT OF TRANSPORTATION'S ANSWER AND DEFENSES TO DEFENDANT’S STIPULATED AMENDED COMPLAINT Defendant FLORIDA DEPARTMENT OF TRANSPORTATION (“Department”), hereby submits its Answer, General Denials, and Defenses to Plaintiffs’ Amended Complaint per the July 22, 2021 stipulation of amendment, and states: ANSWER 1. Admitted for jurisdictional purposes only; otherwise denied. 2. Denied. 3. Without knowledge, therefore denied. 4. Admitted. 5. Denied. Electronically Filed Walton Case # 18000572CAAXMX 08/02/2021 09:08:11 PM6. Admitted that there an agreement for Parcel 153.1, and that the agreement speaks for itself; otherwise denied. 7. Admitted that Department extended drainage culverts pursuant to roadway constructions plans that were made part of the agreement for Parcel 153.1; otherwise denied. 8. Without knowledge, therefore denied. 9. Denied. COUNT I- INVERSE CONDEMNATION — DEPRAVATION OF RIPARIAN RIGHTS 10. The responses to paragraphs numbered 1 to 9, inclusive, are incorporated as if fully set forth. 11. Admitted to the nature of the alleged cause of action; otherwise denied. 12. Denied. 13. Denied. 14. Denied. 15. Denied. 16. Denied. COUNT II - INVERSE CONDEMNATION — PHYSICAL TAKING 17. The responses to paragraphs numbered 1 to 9, 11, and 16 inclusive, are incorporated as if fully set forth. 18. Denied for all subparts. 19. Denied for all subparts. 20. Denied. 21. Denied.The Department denies Plaintiff's requests for relief stated at the end of Count II of the Amended Complaint. 22. 23. COUNT Il] —-INJUNCTIVE RELIEF Admitted to the nature of the alleged cause of action; otherwise denied. The responses to paragraphs numbered 1 to 9, 12, and 18 a)-c) inclusive, are incorporated as if fully set forth. 24. 25. 26. 27. 28. 29. Denied. Denied for all subparts. Denied. Denied. Denied. Denied. The Department denies Plaintiff's requests for relief stated at the end of Count I of the Amended Complaint. GENERAL DENIAL Any averment or allegation in the Complaint not specifically admitted is denied. OBJECTION TO JURY TRIAL Pursuant to section 73.071(3), Florida Statutes, the jury in an eminent domain trial is to solely determine the amount of compensation due as of the date that title passes for the property to the government. Any finding of liability for inverse condemnation is the province of the court and must be determined at a Non-Jury Trial conducted by the court before the issue of compensation may be submitted to a jury. Foster v. Gainesville, 579 So. 2d 774, f.n. 2 (Fla. 1st DCA 1991); Sarasota-Manatee Airport v. Alderman, 238 So. 2d 678 (Fla. 2d DCA 1970); Tampa-Hillsborough County Expressway Auth. v. A.G.W.S. Corp., 608 So. 2d 52 (Fla. 2d DCA 1992) quashed on other grounds 640 So. 2d 54. DEFENSES TO THE COMPLAINT The Department, alleges the following Defenses, and in support thereof, states as follows: 1. Plaintiffs are estopped from attaining compensable damages for the alleged physical invasion of its property and alleged degradation of the channel/ditch because of lack of notice given, or action taken, by Plaintiffs during the time of the alleged physical invasion and/or tortious conduct. 2. Plaintiffs failed to exhaust administrative remedies in that they never sought any enforcement action on the Department’s construction or environmental permits. 3. Plaintiffs have not suffered any permanent damages to their property because of the alleged physical invasion of the property. 4. Plaintiffs have failed to mitigate their damages. 5. Any damages allegedly suffered by Plaintiffs are Damnum Absque Injuria, or that the damages alleged by Plaintiffs are not recognized at law. 6. Any damages alleged by the Plaintiffs are consequential in relation to the road project and are non-compensable. 7. Plaintiffs failed to join indispensable parties to this action. (to wit: the contractor or any other party who may have constructed any alleged improvements on the plaintiff property and in the channel/ditch; or any other entity who has an interest in the channel/ditch). 8. Plaintiffs have failed to state a cause of action since an inverse condemnation claim can only be based upon actions which constitute a taking, and such taking must be specific as to a date. The Amended Complaint fails to allege a specific date:a) when alleged physical invasion of the channel/ditch occurred; b) when alleged physical invasion of his property occurred. 9. Plaintiffs’ claim for inverse condemnation is barred by the four-year statute of limitations. Plaintiffs knew about, inspected all of the construction plans, negotiated compensation from the Department for Highway 331 improvements, and/or any fill from the construction project entered the channel/ditch more than 4 years prior to filing the pending suit. 10. The Department has complied with all necessary rules, policies, and statutory standards in the design, construction, and maintenance of the subject road and all attendant drainage facilities located near the subject property. 11. The project was built in substantial conformance with the plans which were made part of the Parties’ agreement. 12. The alleged actions or inaction by the Department does not rise to the level of an inverse condemnation and, at best, qualifies as tortious conduct. 13. Accord and Satisfaction. On or about July 29, 2008, defendant delivered to plaintiff and plaintiff accepted from defendant money in full satisfaction of plaintiffs claim when the parties negotiated the compensation for Parcel 153.1 14. The Plaintiffs failed to comply with the condition precedent to bringing a suit for pollution of the wetlands and the channel/ditch as stated in in Section 403.412(2)(a) 2, Florida Statutes. 15. The Plaintiffs can access the channel/ditch from their property, therefore continue to have the same level of access to the subject channel/ditch and Plaintiffs’ access rights are not diminished.16. The Plaintiffs’ interest in waterway navigation is the same as members of public. The alleged injury or inconvenience sustained by Plaintiffs is the same in kind as that suffered by the Public similarly situated, but different only in degree, and compensation is not recoverable. 17. The channel/ditch was not navigable in its natural state. The channel/ditch was artificially improved to become navigable, and because of lack of maintenance it is merely reverting to its natural state. 18. The lack of water or the water level variations are due to season and tidal influence. 19. The Department is not responsible for the abatement of pollutants and flows entering its cross drain from offsite sources. 20. The Plaintiffs merely allege the property is damaged, not taken; the Florida Constitution’s takings clause does not require compensation for property that is merely damaged, but not taken. 21. Any physical invasion or construction material placed upon Plaintiffs’ property, or flooding of the property, were not the result of conduct by, on behalf or, or at the direction of, the Department. 22. — Injunctive relief is barred because a monetary award for Plaintiffs’ alleged injury is an adequately remedy. Where a money judgment can be obtained an adequate remedy at law exists. Mary Dee’s Inc. v. Tartamella, 492 So. 2d 815 (Fla. 4th DCA 1986). The plaintiffs did not suffer irreparable harm, because their alleged loss is compensable by money damages. See Barclays American Mortgage Corp. v. Holmes, 595 So. 2d 104 (Fla. 5 DCA 1992). 23. Any physical occupation was within the Department’s rights under its drainage easement.Respectfully Submitted, /s/William. E. Foster WILLIAM E. FOSTER Assistant General Counsel Florida Bar No.: 95573 Florida Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 william.foster@dot.state.fl.us (850) 414-5265 (Phone) (850) 414-5264 (Facsimile) Counsel for Florida Department of Transportation CERTIFICATE OF SERVICE I HEREBY CERTIFY that pursuant to Fla. R. Jud. Admin 2.516, a true and correct copy of the foregoing was furnished via E-Portal on August 2, 2021, that included the following: William A. Fixel at wfixel@fixelwillis.com, fixelservice@fixelwillis.com, and James Stanley Chapman at schapman@fixelwillis.com. Respectfully Submitted, /s/William. E. Foster WILLIAM E. FOSTER