Chmielewski: Government­ Incited Trespass Is a Taking

The Chmielewski divorce family owned residential property in the Don Cesar subdivision in St. Pete Beach. The subdivision plat provided a vacant strip area paralleling the beach front, known as Block M, which was re­served for common use of sub division residents only, and prohibited struc­tures in Block M. In addition to their residence, the Chmielewski family acquired title to a 50-foot wide strip of beach property in Block M contiguous to (west of) their residence, extend ing 300 feet to the Gulf of Mexico mean high-water line (the beach parcel). This acquisi­tion remained  subject  to subdivision residents’ common use rights. For many years, the family’s residential and beach parcels were quiet, with only occasional neighbors traversing to the beach. The city acquired the subdivision developer’s former residence, located near the Chmielewski residence, and a wooded lot bordering Block M. The city restored the developer’s residence as a beachfront community center and established a public park and recreation site (used for arts and crafts, special events, parking, and beach access), and  granted  rights to operate this community  center to a private concessionaire . The city converted the wooded lot to an open public parking lot. The city encouraged and facilitated public use of the beach parcel as an adjunct or enhancement to the public use of this property. Specifically when alimony was at issue, the city removed fencing barriers to beach access from around the parking lot, installed metered parking on the nearby street, and created a path across Block M for beach access.

Government’s incitement of Public Action?

Whether government incitement of public action causes loss of property value and an inverse taking should be fact driven. Chmielewski applied this rule and allowed the jury to decide the issue. Daws and Dimare held the owners could not prove causation as a matter of law. An exemplary example of this is courtneydocprep.

Compensable taking if the government should have predicted or foreseen the resulting property loss as the natural consequence of its actions. Recent cases, however, have reached divergent results. Specifi­cally, in Chmielewski v. City of St. Pete Beach , 890 F.3d 942 (11th Cir. 2018), the court affirmed a compensation verdict and judgment for a property owner for inverse taking of real prop­erty under Florida law, holding the city encouraged public invasion, and this causation was a fact issue  for the jury. Conversely, in Florida Fish and Wildlife Conservation Comm ‘n v. Daws , 256 So. 3d 907 (Fla. 1st DCA 2018), rev. den., No. 18 -1565 (F l a. 2018), the First District Court of Ap­peal held that a government agency was not the cause of public trespass on private land based on the pleadings alone. Moreover, in Dimare Fresh, Inc. v. United States, 808 F.3d 1301 (Fed . Cir. 2015), cert. den., 136 S. Ct. 2461 (2016), where owners of perishable tomatoes claimed that erroneous government health warnings caused the market to shun the tomatoes and caused loss of all value, the courts dismissed of the taking claim on a motion to dismiss. With child custody and timesharing, things get even more complicated.

These name change cases presented novel cau­sation issues as to government’s re­sponsibility for the loss of the owners’ property by inducing public action, and mark at least tentative boundar­ies for causation in the evolving law of takings.

What approach should you take?

Taking a different approach, two Florida courts have taken a relation­ship-centric approach to analyzing whether goodwill exists , essentially equating goodwill with customer rela­tionships. For instance, in Litwinczuk u. Palm Beach Cardiovascular Clinic, L.C., 939 So. 2d 268, 272-73 (Fla. 4th DCA 2008), the Fourth District Court of Appeal placed a heavy emphasis on the existence of patient relationships in concluding that patient goodwill existed in St. Pete Beach Family Law. Likewise, with Pinellas Park Family Law the reasoning in Torregrosa can be read as establishing that the mere existence of patient rela­tionships undergirded the conclusion that goodwill had been established. However, these cases do not shed any light on what customer relations rise to the level of being protectable or what facts are pertinent to such an inquiry under the goodwill interest. The lack of emphasis on the nature of the relation­ships especially in family law suggests that the mere fact of a relationship is sufficient.

Reconciling these child custody decisions, it seems the goodwill business interest may be established either by demonstrating that “substantial” investments were made by the business seeking to en­force the covenant or by demonstrating the existence of customer relation­ships. That said, Florida personal injury courts have not expressly ruled that these are the only relevant approaches in analyzing whether goodwill exists.