Judge does give plaintiffs 20 days from Aug. 12 to file amended complaint with clearer claims related to ‘taking’ issue
In an Aug. 12 order, 12th Judicial Circuit Judge Dana Moss ruled mostly in Sarasota County’s favor in a lawsuit that residents of the Laurel Meadows community filed against the county in March, regarding the flooding they experienced during Tropical Storm Debby’s inundation in early August 2024.
A Sarasota stormwater consultant who, as a county employee, helped launch the Environmental Stormwater Utility program, determined that a breach in a county dike was responsible for that flooding, as The Sarasota News Leader has reported.
Moss noted in her ruling that the plaintiffs contended that the flooding they suffered was a result of the county staff’s “negligent maintenance of the Cow Pen Slough dike, which — they also alleged — had had a breach as early as 2018. They argued that staff had “failed to take corrective action and otherwise acted negligently, which caused significant damage to Plaintiffs’ properties and required them to vacate their [homes and businesses].”
The plaintiffs were seeking a “judgment for damages, plus interest, costs, and such further relief as the Court deems proper,” as noted in the complaint filed on their behalf by attorney Steven D. Hutton of the Hutton Stall law firm in Sarasota.
Hutton specifically wrote that his clients suffered more than $50,000 in damages for the county’s alleged negligence. The plaintiffs had requested a jury trial “to assess the amount of full compensation” that was due them, in accord with Section 73.701 of the Florida Statutes, which involves eminent domain claims.
Cornell Law School’s Legal Information Institute explains, “Eminent domain refers to the power of the government to take private property and convert it into public use, referred to as a taking. “
The Institute further explains, “In the context of property in an eminent domain case” — which is how the Laurel Meadows complaint was styled — “taking” means that the owner of a piece of property “is effectively deprived of the ability to use the property.”
Moss dismissed with prejudice the claim that the county’s negligence led to the flooding, meaning that that claim could not be included in an amended version of the lawsuit; and she dismissed the plaintiffs’ business damage claims, citing a state law.
However, Moss dismissed without prejudice the claim of inverse condemnation, so the plaintiffs could make clear the facts establishing what is called a “taking” under Florida standards, “including permanence or reasonable recurrency of flooding and substantial deprivation of beneficial use [of their property].”
As Cornell Law School’s Legal Information Institute explains, inverse condemnation “is a remedy for property owners when a government takes or damages a property for public use without having brought an eminent domain proceeding. To successfully bring an action for inverse condemnation, the property owner must show that the government’s taking has failed to promote substantial governmental interests or has deprived the owner of the economic value of their property.”
Further, the Institute points out, “A government that takes private property for public use may be required to provide just compensation even when there is no physical invasion of property, such as in regulatory taking where a government permanently deprives the property owner of all beneficial uses of their property. Fair market value of the property is generally used to assess damages for inverse condemnation actions.”
Moss also granted the county’s request for a more definite statement from the plaintiffs, which must be filed with the court within 20 days of Aug. 12.
In the county’s motion to dismiss the Laurel Meadows complaint and to seek “a more definite statement,” Deputy County Attorney David Pearce wrote that Section 1.140(e) of the Florida Rules of Civil Procedure says, “In Florida, every cause of action, whether derived from statute or common law, is comprised of necessary elements which must be proven for the plaintiff to prevail,” citing the 1999 Florida Fourth District Court of Appeal ruling in Barrett v. City of Margate. That order said, “The complaint must set out the elements and the facts that support them so that the court and the defendant can clearly determine what is being alleged. … The complaint, whether filed by an attorney or [a plaintiff acting on his or her own behalf], must set forth factual assertions that can be supported by evidence which gives rise to legal liability.”
Among what he characterized as “vague and ambiguous statements” in the Laurel Meadows complaint, Pearce pointed to the allegation, “The County is obligated by County Code … to maintain Cow Pen Slough and the surrounding infrastructure, including the dike”; along with the allegation, “The County has … a duty to maintain Cow Pen Slough as a functional drainage canal.”
Pearce noted that those allegations do not identify relevant sections of the County Code, and the complaint “does not identify the ‘surrounding infrastructure’ the County must maintain.”
He added, “Under Florida case law, it is only in certain limited circumstances, specifically where a government has affirmatively taken on a duty,” such as accepting dedication of a road, “that inaction can lead to a claim [of] of inverse condemnation.”
In response to a public records request for a copy of any communication about Judge Moss’ ruling from the Office of the Sarasota County Attorney to the county commissioners, the News Leader learned that, on Aug. 13, County Attorney Joshua Moye notified the board members about the order. He summarized her actions on the various counts and added, “Our office will prepare a more detailed memorandum, but I wanted to make the Board aware of the Court’s ruling.”
Moye did point out that Pearce is the lead counsel for the county in the case, with Assistant County Attorney Jenny Burns as second chair,” meaning that she is working alongside Pearce.
In response to a News Leader inquiry, county Public Information Officer Brian White wrote in an Aug. 19 email, “The Office of the County Attorney has no further comment as it is still in active litigation.”
The News Leader also sought a statement from the plaintiffs’ attorney, Hutton, of the Sarasota firm Hutton & Stall. In an Aug. 19 email, he wrote, “ The Order was not what I was expecting. Nonetheless, there is nothing in the Order that will materially impact the case going forward. We plan to file a 1stAmended Complaint within 20 days to address the pleading issues as to Count I for Inverse Condemnation. We have filed a Motion for Reconsideration as to the ruling on Count II for Negligence. I suspect we will get a ruling on that Motion in the next few days.”
Tropical Storm Debby’s rainfall
As Moss further explained in her ruling, the plaintiffs in the case are owners of single-family residences in the Laurel Meadows subdivision, as well as surrounding business owners who suffered damage from the flooding. She noted that 12 to 24 inches of water entered the plaintiffs’ homes and businesses.
Rich Collins, director of the county’s Emergency Services Department, explained during a presentation to the County Commission in late August 2024 that the National Weather Service informed the county’s Emergency Management team staff that the rainfall from Tropical Storm Debby would be in the 6- to 8-inch range — and that was over five days. Instead, as Collins noted, the highest level recorded in the county was more than 18 inches, and that covered a period of approximately 36 hours, through about midday on Monday, Aug. 5.
Explaining her decisions
Moss provided details in support of her decisions in the order.
First, citing the 2011 Florida Fifth District Court of Appeal decision in Jordan v. St. Johns Cnty, she pointed out that the county “cannot reasonably admit or deny [the allegations that its actions and inactions caused the breach of the Cow Pen Slough dike] without greater specificity, [so] a more definite statement is warranted.”
As for Count II, Moss agreed with the county’s argument that the claim for negligence regarding the alleged failure of the Cow Pen Slough dike must be struck because state law “affords [local governments] immunity for damages caused by the partial or total failure of stormwater management systems and appurtenant works.”
In considering the Count I claim of inverse condemnation, Moss explained, “The elements of [such a claim] are private property, taken by government, for public purpose, and without just compensation,” citing the 2019 Florida Second District Court of Appeal ruling in Sarasota Welfare Home, Inc. v. City of Sarasota. “A claimant must show either a continual physical invasion of the claimant’s property or deprivation of all or substantially all of the property’s beneficial use,” Moss added, citing the 2001 Florida Supreme Court order in Keshbro, Inc. v. City of Miami.
“Not every invasion … constitutes a taking,” Moss noted, and Deputy County Attorney Pearce had argued that “a single flooding event” cannot constitute a taking for which the affected party must be compensated. Yet, she noted, Florida law on that point is not settled. “[I]t is not necessary that a property owner completely loses access to property to be entitled to compensation for inverse condemnation,” she wrote. “Instead, it is enough that the owner’s right of access was substantially diminished.” For the latter statement, she cited the 2007 Florida Second District Court of Appeal ruling in Dept. of Transp. v. Fisher.
Moss added, “Compensation for inverse condemnation may lie where government accepts ownership and control of a drainage system without paying compensation for an easement, and flooding of an owner’s land results from the discharge of drainage water, rendering the land useless and permanently depriving the plaintiffs of all beneficial enjoyment of the land.” She cited a 1981 Florida First District Court of Appeal case, noting, “Florida precedent generally requires either permanent flooding or recurring flooding that substantially deprives the owner of beneficial use.”
Then she explained that the county also argued that the Laurel Meadows complaint failed to state a cause of action, “because a failure to maintain a dike cannot be the basis for an inverse condemnation claim.” Moss added, “Federal courts have generally held that a failure to maintain stormwater management systems amounts to inaction, which is a basis for negligence not inverse condemnation.”
Therefore, Moss wrote, she found it appropriate to dismiss that claim while allowing the plaintiffs the ability to amend their lawsuit by stating that “a taking under Florida standards with facts addressing permanence or reasonable recurrency of flooding and substantial deprivation of beneficial use; and/or … a taking under … federal standards with facts that address authorized governmental action, in addition to the foreseeability or intent and causation that has been pled.”
As for the proximate cause issue: Moss pointed out that the plaintiffs “must show they would not have ordinarily suffered these injuries absent [the county’s] conduct.” Deputy Attorney Pearce, she wrote, has maintained that, “in the flooding context, Plaintiffs must show that their properties were ‘more burdened by flooding post-construction of a stormwater project than [the properties] would have [been] prior to construction.’ ”
Moss pointed out that Pearce has contended that the plaintiffs’ complaint does “not show post-construction additional burdening. Furthermore, Tropical Storm Debby’s rainfall allegedly exceeded a 100-year event and the County’s stormwater design standards, which was an unforeseeable risk that the County had not duty to prevent.”
However, Moss wrote that dismissing the section of the complaint regarding proximate cause was not warranted, because the plaintiffs “specifically allege” causation, responsibility, and duty to maintain, along with the assertion “that flooding was foreseeable and predictable.”
She agreed with Pearce that she should dismiss any claims for business damages, citing state law that specifies business damages are available only when the claim involves a partial taking for right of way projects.