DR. EVELYN LOPEZ-BRIGNONI, et al., vs FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, et al.,

Miami, Florida - Liability Attorney, destruction of healthy residential citrus trees





This case arises from the destruction of healthy residential citrus trees located

within 1900 feet of a citrus tree infected with citrus canker, a bacterial infection

causing lesions on the leaves, stems, and fruit. These healthy trees were destroyed

by the Department as part of the CCEP.2

Five named plaintiffs representing 97,302

Miami-Dade Homeowners whose healthy trees were destroyed sued the Department

1

Section 581.1845 was effective until June 30, 2010.

2

Efforts to eradicate citrus canker in Florida date back to 1914. See Haire v. Fla.

Dept. of Agric. & Consumer Servs., 870 So. 2d 774, 778-79 (Fla. 2004) (outlining

the history of citrus canker in Florida).

3

seeking full compensation under a theory of inverse condemnation3 pursuant to both

the Florida and United States Constitutions (Counts I and II, respectively). The

Homeowners also sought compensation under section 581.1845 (Count III).

A lengthy procedural history precedes this appeal, a recitation of which is

necessary as it informs our decision herein. Since the inception of this case, four

citrus canker trials have taken place in Broward, Palm Beach, Lee, and Orange

counties. In all four of those cases the Department was found liable for inverse

condemnation, juries awarded compensation, and the judgments have been affirmed

on appeal:

• Broward County: Dep’t of Agric. & Consumer Servs. v. Bogorff, 35

So. 3d 84 (Fla. 4th DCA 2010) (affirming), rev. denied, 48 So. 3d 835

(Fla. 2010), cert. denied, 131 S. Ct. 2874 (2011).

• Palm Beach County: Fla. Dep’t of Agric. & Consumer Servs. v.

Mendez, 126 So. 3d 367 (Fla. 4th DCA 2013) (affirming the order on

liability but reversing on compensation and remanding for retrial due

to the improper exclusion of relevant testimony) (“Mendez I”); see also

Fla. Comm’r of Agric. v. Mendez, 229 So. 3d 351 (Fla. 4th DCA 2016)

(affirming the $23.6 million verdict after retrial) (“Mendez II”).

• Lee County: Fla. Dep’t of Agric. & Consumer Servs. v. Dolliver, 209

So. 3d 578 (Fla. 2d DCA 2016) (per curiam affirmed).

3 “Inverse condemnation has been defined as the popular description of a cause of

action against a governmental defendant to recover the value of property which has

been taken in fact by the governmental defendant, even though no formal exercise

of the power of eminent domain has been attempted by the taking agency.” City of

Jacksonville v. Schumann, 167 So. 2d 95, 98 (Fla. 1st DCA 1964) (citations

omitted).

4

• Orange County: Fla. Dep’t of Agric. & Consumer Servs. v. Ayers, 192

So. 3d 68 (Fla. 5th DCA 2016) (per curiam affirmed).



This case started in October of 2000 when a group of homeowners from

Miami-Dade and Broward counties sued the Department in the Seventeenth Judicial

Circuit in and for Broward County. The case involving the Miami-Dade

Homeowners was later transferred and refiled in the Eleventh Judicial Circuit. See

Fla. Dept. of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So. 2d 928,

932 (Fla. 4th DCA 2002) (affirming class certification with respect to the Broward

homeowners but directing the Seventeenth Circuit to remove the Miami-Dade

Homeowners from the class).

In early 2006, the trial court entered an order adopting the Broward Circuit

Court’s 2002 class certification order in its entirety. On certiorari review, this Court

quashed that order and remanded with directions for the trial court to conduct its

own class certification hearing and enter its own order as provided by Florida Rule

of Civil Procedure 1.220. Fla. Dep’t of Agric. v. In re Citrus Canker Litig., 941 So.

2d 461 (Fla. 3d DCA 2006).

Later that year, and prior to the trial court certifying the Miami-Dade class,

the trial court entered an order granting partial summary judgment as to liability

against the Department pursuant to Count III, the statutory claim for additional

compensation under section 581.1845 (the “2006 Liability Order”). The 2006

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Liability Order provided that “Plaintiffs’ claims under Count III shall proceed solely

on the issue of damages.”

Over two years later, in December of 2008, the trial court stayed the case

pending the outcome of the appeal of the initial case filed in the Seventeenth Judicial

Circuit. The Department appealed the stay. This Court affirmed, and the case

remained stayed in the trial court until the Fourth District issued its ruling. See Dep’t

of Agric. & Consumer Servs. v. In re Citrus Canker Litig., 20 So. 3d 864, 864 (Fla.

3d DCA 2009). In May 2010, the Fourth District affirmed the Seventeenth Circuit

Court’s order awarding compensation to the Broward homeowners. See Bogorff,

35 So. 3d 84.

Thereafter, in June of 2010, the trial court held a hearing and entered an order

certifying the class.4

The Department appealed. This Court affirmed the

certification in Florida Department of Agriculture & Consumer Services v. LopezBrignoni, 114 So. 3d 1138 (Fla. 3d DCA 2012) (“Lopez-Brignoni I”). The trial court

set the case for a non-jury liability trial and notice was provided to the certified

class.5

In advance of the liability trial, both sides filed a series of pretrial motions,

4 The certified class consists of “[a]ll owners of citrus trees situated within MiamiDade County, incorporated or otherwise, not used for commercial purposes, which

were not determined by the Department to be infected with citrus canker and which

were destroyed under the CCEP on or after January 1, 2000.”

5 Thirty-two class members timely excluded themselves.

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requests for judicial notice, and trial briefs addressing the same liability issues that

were raised and decided in Bogorff, Mendez I, and Dolliver. In their Omnibus PreTrial Motion Regarding Certain Issues Relating to the Liability Trial, the

Homeowners urged the court to apply Bogorff, Mendez I, and Dolliver to the

liability determination in this case. The Department opposed, arguing a full trial was

required.6

The trial proceeded over six days between May 9, 2016, and June 2, 2016.

The court received testimony from 17 witnesses and admitted 75 exhibits into

evidence. The testimony and exhibits were similar to the testimony and exhibits

admitted during the liability trials in Bogorff, Mendez I, Dolliver, and Ayers. To

avoid repetition, the parties stipulated that the former testimony of many of the key

witnesses from the liability trials in Bogorff, Mendez I, Dolliver and Ayers would

be submitted to the court in lieu of their personal appearance. The Department

denied liability and raised public nuisance as its principal defense.

Over a year later, on August 4, 2017, the trial court issued its Order on

Liability (the “2017 Liability Order”), concluding that the Department was not liable

under Counts I and II for inverse condemnation. To facilitate appellate review, the

6

The pre-trial motions and requests for judicial notice were pending at the time of

trial. At the outset, the court acknowledged the pending motions and other matters

and denied the Department’s motion to decertify the class. The court then indicated

that the other pretrial motions could be “carried with the case,” given that the trial

was non-jury.

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parties filed a joint stipulation for entry of a directed verdict or involuntary dismissal

in favor of the Department on the issue of damages under Count III, the statutory

claim for compensation under section 581.1845. The trial court entered an Order

Granting Directed Verdict or Involuntary Dismissal in favor of the Department on

Count III and subsequently entered Final Judgement in favor of the Department. The

Homeowners timely appealed the 2017 Liability Order and the Department timely

cross-appealed the 2006 Liability Order.

II. STANDARDS OF REVIEW

This Court reviews a judgment rendered after a bench trial to determine

whether the trial court’s determinations of factual matters are supported by

competent, substantial evidence. Dep’t of Agric. & Consumer Servs. v. Mid-Fla.

Growers, Inc., 521 So. 2d 101, 104 (Fla. 1988); Hass Automation v. Fox, 243 So. 3d

1017, 1023 (Fla. 3d DCA 2018). Applications of the law—legal conclusions—are

reviewed de novo. Musi v. Credo, LLC, 273 So. 3d 93, 96 (Fla. 3d DCA 2019);

Hass Automation, 243 So. 3d at 1023; Trump Endeavor 12 LLC v. Fernich, Inc.,

216 So. 3d 704, 707 (Fla. 3d DCA 2017) (applying de novo standard of review to

trial court’s application of the law to its factual determinations).

III. ANALYSIS

As previously explained, there are two orders before us on appeal. The

Homeowners appeal the trial court’s 2017 Liability Order, which found no liability

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on the part of the Department for the Homeowners’ inverse condemnation claims

(Counts I and II). The Department cross-appeals the trial court’s 2006 Liability

Order granting partial summary judgment in favor the Homeowners on their

statutory claim for additional compensation under section 581.1845 (Count III). We

first address the Homeowner’s appeal of the 2017 Liability Order.

A. The 2017 Liability Order

In its 2017 Liability Order, the trial court found no liability on the part of the

Department for inverse condemnation based primarily on two grounds: (1)

“Plaintiff’s failed to prove they owned compensable property for which full

compensation had not been provided, under existing precedent of the Third District

Court of Appeal” and (2) “citrus exposed to the disease of citrus canker and removed

in the eradication program constituted the abatement of a public nuisance.”

The trial court’s finding that the Homeowners failed to prove they owned

compensable property resulted from the court’s rejection, as a matter of law, of the

valuation of the Homeowners’ trees. In the 2017 Liability Order, the trial court

acknowledged that this “valuation methodology was identical to that presented

during the class certification hearing.”

In resolving this issue, we look to the appeal of the trial court’s order

certifying the class in June of 2010. See Lopez-Brignoni I, 114 So. 3d 1138. In

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that appeal, Judge Lagoa,7 writing for the majority, addressed the Department’s

argument challenging the methodology for compensating the Homeowners:

We find the Department’s argument without merit as

the homeowners have specifically limited their claim for

damages in the amended motion for class certification to

the replacement cost of the destroyed trees, and the

homeowners are not seeking subjective damages such as

loss of shade, ornamentation, fruit, or privacy. As the trial

court found in its order granting the amended motion for

class certification, although the amount of compensation

for the replacement cost of the destroyed trees may differ

among homeowners, “the methodology for establishing

compensation will result in a uniform result, thus avoiding

the necessity of holding individual damage hearings.”

Therefore, the replacement cost measure of damages

serves as an adequate methodology for determining any

possible compensation to the homeowners.

Id. at 1143.

The Dissent disagreed that the Homeowners’ replacement cost methodology

was adequate and took the position that the formula was deficient as a matter of law.

Id. at 1144 (Rothenberg, J., dissenting). The Department moved for rehearing en

banc, which was denied. See Florida Dept. of Agric. & Consumer Services v. LopezBrignoni, 114 So. 3d 1135 (Fla. 3d DCA 2013).8



7 At that time, Judge Barbara Lagoa was a judge on the Third District Court of

Appeal. Subsequent thereto, she was appointed to the Florida Supreme Court and

later to the Eleventh Circuit Court of Appeals, where she now presides.

8 See also id. at 1136 (Logue, J., dissenting)

10

Despite this Court’s majority opinion and this Court’s subsequent denial of

the Department’s motion for rehearing en banc, the trial court agreed with the

dissents that the Homeowners’ valuation methodology was “deficient as a matter of

law.” The Homeowners argue that the trial court erred in failing to follow this

Court’s decision by failing to apply the law of the case doctrine. We agree.

“The law of the case doctrine applies where successive appeals are taken in

the same case.” United Auto. Ins. Co. v. Comprehensive Health Ctr., 173 So. 3d

1061, 1065 (Fla. 3d DCA 2015) (citing Delta Prop. Mgmt. v. Profile Invs., Inc., 87

So. 3d 765, 770 (Fla. 2012); Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105

(Fla. 2001)). The doctrine “provides that ‘questions of law decided on appeal to a

court of ultimate resort must govern the case in the same court and the trial court,

through all subsequent stages of the proceedings.’” Id. (quoting McGregor v.

Provident Trust Co. of Phila., 119 Fla. 718, 162 So. 323, 327 (1935)). Moreover, “a

lower court cannot change the law of the case as established by the highest court

hearing the case, and a trial court must ‘follow prior rulings of the appellate court as

long as the facts on which such decision are based continue to be the facts of the

case.’” Id. (quoting Juliano, 801 So. 2d at 106).

Here, the law of the case with respect to the legal sufficiency of the

Homeowner’s valuation methodology was established in the prior class certification

appeal. See Lopez-Brignoni I, 114 So. 3d at 1143. This Court considered the

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Department’s argument that the valuation methodology was legally insufficient and

explicitly rejected that argument, finding it to be “without merit.” Id. We therefore

conclude that the trial court erred in adopting the view of the dissents and rejecting

the opinion of this Court in derogation of the law of the case doctrine.

We next consider the trial court’s finding that the Department is not liable for

the destruction of healthy, residential citrus trees because the trees are a public

nuisance.9

They are not.

In its order, the trial court relies on Department of Agriculture & Consumer

Services v. Polk, 568 So. 2d 35 (Fla. 1990), a case in which the Florida Supreme

Court held that a commercial citrus tree nursery was not entitled to compensation

for healthy trees destroyed within 125 feet of a diseased tree. As the Fourth District

explained in City of Pompano Beach, “The 125 foot radius was adopted in the 1980s

as a result of a study conducted in Argentina. However, that study did not take into

account what would happen in an urban setting.” 792 So. 2d at 542. In early 2000,

following the results of a new study, the 125-foot radius was expanded to 1900 feet.

Id. at 543.

Following Polk and the subsequent expansion of the buffer zone to 1900 feet,

the question remained whether Polk applied to noncommercial, residential citrus

9 This argument was also considered in the prior class certification appeal. This

Court similarly found no merit to this argument without further discussion. LopezBrignoni I, 114 So. 3d at 1140-41.

12

trees within 1900 feet of trees infected with citrus canker. This exact question was

answered in Patchen v. Florida Department of Agriculture & Consumer Services,

906 So. 2d 1005 (Fla. 2005), a case that is absent from the trial court’s discussion of

Florida caselaw on public nuisance.10

In Patchen, the Florida Supreme Court held that Polk is inapplicable to the

Department’s destruction of uninfected, healthy noncommercial, residential citrus

trees within 1900 feet of trees infected with citrus canker. Id. at 1006. As the Fourth

District explained in Mendez I, the Supreme Court in Patchen reasoned that

“homeowners whose trees were within the ambit of section 581.1845 were not

governed by Polk because the Legislature itself had established that they were due

compensation for their trees.” 126 So. 3d at 370. There is no dispute that the

Homeowners in this case are covered by section 581.1845. Indeed, as the trial court

explained in the 2017 Liability Order, “[a]ll class members received unconditional

offers of compensation” under the programs established by section 581.1845.

10 This Court certified the following question as one of great public importance:

Does the Florida Supreme Court’s decision in [Polk],

which held that the Department’s destruction of healthy

commercial citrus nursery stock within 125 feet of trees

infected with citrus canker did not compel state

reimbursement, also apply to the Department’s destruction

of uninfected, healthy noncommercial, residential citrus

trees within 1900 feet of trees infected with citrus canker?

Patchen, 906 So. 2d 1005, 1005-06 (Fla. 2005).

13

Consequently, because the Legislature established that the Homeowners were due

compensation for their trees, Polk simply does not apply in this case, and the trial

court erred in concluding otherwise.

B. The 2006 Liability Order

In Count III of their operative complaint, the Homeowners sought

compensation pursuant to section 581.1845, Florida Statutes (2009). Section

581.1845, titled “Citrus canker eradication; compensation to homeowners whose

trees have been removed” provides, in pertinent part, as follows:

(1) The Department of Agriculture and Consumer

Services shall provide compensation to eligible

homeowners whose citrus trees have been removed under

a citrus canker eradication program. Funds to pay this

compensation may be derived from both state and federal

matching sources and shall be specifically appropriated by

law. Eligible homeowners shall be compensated subject to

the availability of funds. . . .

. . . .

(3) The amount of compensation for each tree removed

from residential property by the citrus canker eradication

program shall be $55 per tree. If the homeowner’s

property is eligible for a Shade Dade or a Shade Florida

Card, the homeowner may not receive compensation

under this section for the first citrus tree removed from the

property as part of a citrus canker eradication program.

(4) The specification of a per-tree amount paid for the

residential citrus canker compensation program does not

limit the amount of any other compensation that may be

paid by another entity or pursuant to court order for the

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removal of citrus trees as part of a citrus canker eradication

program.

In short, section 581.1845 provides for compensation in the amount of $55 per tree,

subject to the availability of funds.11 Moreover, section 581.1845(4) states that the

per tree amount “does not limit the amount of any other compensation that may be

paid by another entity or pursuant to court order . . . .” (Emphasis added).

In 2006, the Homeowners moved for partial summary judgment on their claim

for compensation in addition to the base compensation created by section 581.1845.

According to the Homeowners, they were entitled to entry of judgment as a matter

of law based on two Florida Supreme Court decisions: Haire and Patchen. In Haire,

the Court held as follows:

In this case, we conclude that under the statutory

scheme the State is obligated to provide more than token

compensation if the State has destroyed a healthy, albeit

exposed tree. Section 581.1845 expressly states that the

specified per-tree amount “does not limit the amount of

any other compensation that may be paid . . . pursuant to

court orderfor the removal of citrus trees as part of a citrus

canker eradication program.” § 581.1845(4) (emphasis

supplied).

. . . .

11 Homeowners eligible for the Shade Dade or Shade Florida Card may not receive

compensation for the first citrus tree removed. “The statutes do not further define a

Shade Dade or Shade Florida Card. However, a press release from the Department

announcing the program indicates that these are gift cards redeemable at Wal–Mart

for non-citrus trees and other garden related items.” Haire, 870 So. 2d at 780.

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In accord with our precedent, we conclude that the

schedule established by the Legislature sets a floor but

does not determine the amount of compensation. When

the State destroys private property, the State is obligated

to pay just and fair compensation as determined in a court

of law. We emphasize that the fact that the Legislature has

determined that all citrus trees within 1900 feet of an

infected tree must be destroyed does not necessarily

support a finding that healthy, but exposed, residential

citrus trees have no value.

870 So. 2d at 785 (footnotes omitted) (emphasis added). In Patchen, the Court

further explained that “[H]omeowners and others similarly situated who meet the

requirements of section 581.1845(2)(a), (b), and (c), may receive compensation

pursuant to that statute as construed and upheld in our decision in [Haire].” Patchen,

906 So. 2d at 1008.

The trial court agreed with the Homeowners and granted their motion “as to

liability pursuant to Count III, the statutory claim brought under § 581.1845, Florida

Statutes.” Following entry of the trial court’s 2006 Liability Order, the Department

appealed the trial court’s class certification order. There, the Department argued that

the Homeowners “have neither a private cause of action for additional compensation

under section 581.1845, Florida Statutes, nor a claim for inverse condemnation . . .

.” Lopez-Brignoni I, 114 So. 3d at 1140. This Court found no merit to that argument

and, relying on both Haire and Patchen, explained as follows:

[I]t is not only beyond legislative purview to displace

the constitutional requirement of just compensation upon

a taking, but section 581.1845 expressly contemplates the

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entry of a court order obligating the State to compensate a

homeowner for the destruction of his or her residential

citrus trees under the CCEP in excess of the statutory pertree amount. The Florida Supreme Court, finding the

statute remedial, gave section 581.1845 its plain meaning,

“which is to provide compensation to homeowners who

had trees destroyed on or after January 1, 1995.” Patchen,

906 So. 2d at 1008. Although the concurring and

dissenting opinions in Patchen suggest concern over

whether the majority opinion impliedly eliminated the

right to pursue an inverse condemnation claim for the

destruction of residential citrus trees, the majority opinion

limits the scope of its opinion to the certified question

posed. See Patchen, 906 So. 2d at 1005–09. Accordingly,

“[i]f the compensation required by the Constitution

exceeds a statutory amount, the State will have to pay that

amount.” Bogorff, 35 So. 3d at 91.

Lopez-Brignoni I, 114 So. 3d at 1141-42 (footnote omitted).

In their cross-appeal, the Department contends that the trial court erred in

granting partial summary judgment of liability based on section 581.1845 because

no private cause of action exists for additional compensation under the statute. We

agree with the Homeowners that this argument was considered and rejected in

Lopez-Brignoni I, which held, based on Haire and Patchen, that the Homeowners

have a private cause of action under section 581.1845.12 We therefore affirm the

trial court’s 2006 Liability Order.

We also note that the homeowners in Broward, Lee, Orange and Palm Beach

Counties have all maintained causes of action and been awarded compensation under

the statute.