July 16, 2009. The Florida Supreme Court issued its Order Denying the Petition for Discretionary Review. The Order states that no motions for rehearing are permitted. The court also granted our motion for appellate attorneys' fees, giving us the grand sum of $2,500 (after the case is over and we win, of course). The government shouldn't take the loss so badly, given that they only had an 11% chance of winning going in. And they got one justice to vote for them (Chief Justice Quince.)

July 11, 2009. Judge Garcia re-assigned the Collins case to Circuit Judge Tegan Slayton (Key West).

June 24, 2009. Plaintiffs wrote a letter to Chief Judge Garcia asking him to re-assign the Collins case, in light of the fact that Judge Becker had granted our Motion for Disqualification more than two months ago.

May 6, 2009. Respondents served and mailed their 8-page Amended Jurisdictional Brief.

April 24, 2009. Respondents' Jurisdictional Brief stricken by Florida Supreme Court for lack of a Summary. An Amended Brief is due by  May 14, 2009.

April 20, 2009. Respondents' (Collins Plaintiffs') 7-page Jurisdictional Brief filed.

April 7, 2009. Judge Becker entered an Order Granting Plaintiffs' Motion for Disqualification.

April 3, 2009. The Third District Court of Appeal granted Plaintiffs-Landowners Motion for Attorneys' Fees. The amount owed Plaintiffs' Counsel will be determined by the trial court, but Jim Mattson's time records alone show 350 hours billed on the Collins appeal. At $350/hour, that could cost the County at least $120,000.

April 3, 2009. After filing their petitions to disqualify Judge David Audlin, Plaintiffs began filing Motions to Disqualify Judge Ruth Becker. Statements from five of the 11 Collins Plaintiffs were served on April 3rd. The basis for the objections to Judge Becker was a long-standing dispute between the judge and Plaintiffs' counsel.

March 26, 2009. The County re-filed a revised, 10-page Jurisdictional Brief. Respondents (that's us) have 25 days to serve their jurisdictional brief (due April 20, 2009).

March 23, 2009. Judge Audlin's Judicial Assistant called to explain that Judge Audlin had been replaced in this case by County Court Judge Ruth Becker as of January 1, 2009 -- and that he would not grant the disqualification motion as he is no longer on the case. On its face, Chief Judge Garcia's December 2008 Administrative Order definitely assigns new civil actions filed in the Marathon district to County Court Judge Becker. But, even though the Order refers to new "and pending" cases for other types of cases, the "and pending" language is absent in the assignment of Marathon Circuit civil cases to County Judge Becker.

March 19, 2009. Back in the trial court again (no "stay" having been requested by the Defendants), all eleven Plaintiffs joined in filing a Motion for Disqualification of Judge Audlin.

March 12, 2009. The State and County filed separate "10-page jurisdictional briefs." A jurisdictional brief addresses one thing only; what is the conflict? Monroe County's jurisdictional brief was rejected because it ran into the 11th page. The State's Jurisdictional Brief was accepted.

April 3, 2009. The District Court of Appeal Granted Appellants' Motion for Appellate Attorneys' Fees.

February 27, 2009. Monroe County and the State of Florida served a "Joint Notice to Invoke Discretionary Jurisdiction" in Collins. In other words, the County and State intended to ask the Florida Supreme Court to review the District Court's decision in Collins, under the supreme court's "discretionary" jurisdiction -- a fairly difficult task. The Florida Supreme Court's case number, for those who want to keep up with the action, is SC09-423.

NOTE: Fla. R. App. P. 9.030(a)(2) lists four grounds for invoking the discretionary jurisdiction of the supreme court when the district court of appeal does not "certify" the question of law for supreme court review. The State and County elected the 4th ground: "the decision expressly and directly conflicts with a decision of another district court of appeal on the same question of law." This should be a substantial hurdle for the State and County, as there are no cities or counties in Florida -- other than in Monroe County -- with anything resembling the Keys' "Beneficial Use Determination" ordinances. So the "same question of law" is not going to appear in any district court of appeal decision other than those of the Third DCA.

February 19, 2009. The District Court of Appeal issued its Mandate, ending the appellate proceedings and remanding the case to the trial court.

February 3, 2009. Appellants' Motion for Clarification Denied; opinion released for publication.

January 15, 2009. Appellants served a Motion for Clarification with the District Court of Appeal. Appellees in Collins and Shands filed neither Motions for Rehearing nor Clarification. Mandate issued in Shands. Monroe County is likely to seek discretionary review by Florida Supreme Court, following resolution of pending Motion for Clarification in Collins.

December 31, 2008: Four years after filing, successor judge reversed and case may move forward again

  December 31, 2008.The Third District Court of Appeal reversed Judge Audlin's dismissals of the Collins and Shands regulatory taking cases. The District Court released 17-page opinions in both Collins, et al v. Monroe County and the State of Florida and Shands v City of Marathon, a Pacific Legal Foundation case. Both appeals were argued on June 30, 2008.

  June 30, 2008. Oral Argument was had in Key West. The Court of Appeal also heard a similar regulatory taking case, Shands v. City of Marathon, also dismissed by Judge Audlin in November 2007, immediately following the Collins oral argument. Like a good movie, the oral arguments before Chief Judge Gersten and District Judges Ramirez and Suarez, went well for the Landowners in Collins and Shands, and the governments' arguments seemed to fall flat on their face.

June 16, 2008. The Collins Reply Brief was served. In addition, the Landowners filed an Appendix to the Reply Brief, consisting of two Memoranda filed in the trial court in 2006: Plaintiffs' Supp. Memorandum on 4-Year Statute of Limitations, and Plaintiffs' Supp. Memorandum on 90-Day Statute of Limitation.

May 8, 2008. Appellants submitted a Notice of Similar Case in response to Court's request to identify similar pending appeals, and request the Court hear the oral arguments in Shands v City of Marathon along with the arguments in Collins. (Monroe County responded by arguing there were no similarities between the two cases.) Oral argument was re-set to June 30, 2008.

April 22, 2008. Monroe County served its Amended Answer Brief (although it omitted the word "amended" from the title page).

March 24, 2008. Monroe County's Answer Brief was stricken by the District Court of Appeal (brief references non-record material; statement of facts argumentative; inadequate record references in argument).

February 29, 2008. Appellants served a Motion to Strike Monroe County's Answer Brief.

January 11, 2008. Monroe County Answer Brief and State of Florida Answer Brief served by Appellees. State of Florida raised 90-day statute of limitation theory, an issue not addressed by the trial court's final judgment (which did not address much of anything).

November 14, 2007. Appellants filed a Motion for Appellate Attorneys' Fees.

November 13, 2007. Appellants served their Initial Brief.

July 2, 2007. Motion for $1.2 Million in Attorneys' Fees filed in the trial court by Monroe County's Kansas City attorneys. A video recording of the Monroe County Commission's meeting on June 20, 2007, shows that Chief Assistant County Attorney Robert Shillinger requested the frivolous attorney-fee filing. Prevailing landowners in inverse condemnation proceedings, including appeals, are entitled to attorneys' fees, but they must file a timely request with the appellate court. Prevailing governments have no right to attorneys' fees in inverse condemnation cases.

June 26, 2007. Judge Audlin signed a new revised order and a new "Final Judgment" in Collins – no changes except for correction of an error. As the order itself was revised, we filed an Amended Notice of Appeal on July 6, 2007.

NOTE: After Circuit Judge David Audlin dismissed Collins and Shands, he dismissed two more regulatory taking cases: McCole v City of Marathon and the State of Florida on October 27, 2008, and Beyer v. City of Marathon & the State of Florida on November 6, 2008, on the same grounds (statute of limitations, ripeness) he invented in Collins and Shands. Also, 16th Circuit Judge Luis Garcia dismissed Sutton v. Monroe County on December 1, 2008, another regulatory taking case, on equally incorrect statute of limitation grounds.

June 22, 2007. We received a post-judgment motion from Monroe County, to amend J. Audlin's strange order. Looks like they're not too happy with it either.

June 18, 2007. We filed a Notice of Appeal of Judge Audlin's final judgment.

June 1, 2007. Judge Audlin signed an Order Granting Summary Judgment, and it is a little surprising. He adopted a throw-away defense -- "ripeness." Given that there are at least three Third DCA decisions that deal with the County's "Beneficial Use Determinations," and all three are at odds with J. Audlin's opinion, it is hard to guess why he chose this hook to hang his hat on.

May 25, 2007: Two and one-half years after filing, Judge Audlin dismisses the case

May 25, 2007. On Friday morning, Judge Audlin's JA left a voicemail saying that the Tuesday, May 29th, Pretrial Conference in Collins was cancelled, and that the Judge planned to grant the State's and County's renewed Motions for Summary Judgment that Judge Payne had denied on November 6, 2006.

Suffice it to say that we were surprised by Judge Audlin's move to toss this case into the lap of the Third District Court of Appeal, particularly as the governments' "renewed" summary judgment motions were not properly before the Court. (The County's "renewed" motion was not even dispositive; it was an argument regarding the method of compensation.) On the other hand, I would rather take up a Summary Judgment at this point than go through the god-awful liability trial that this case was turning into, and then have to appeal (or defend) that decision. Clearly, this case was going to be appealed by one side or the other!

May 19, 2007. Yesterday the Collins plaintiffs were ordered to appear at Plantation Key for court-ordered "mediation." This turned out to be a forum for the governments' lawyers to do their best to threaten the plaintiffs with all sorts of evil results if they refused to turn over their property to the government for a fraction of its fair market value!

May 17, 2007. We served a Motion to Continue the trial, now set to begin on June 18, 2007.

May 16, 2007. Looking back at yesterday, my take is that this case is moving backwards, with issues that were decided by Judge Payne being improperly re-raised by the government – and Judge Audlin allowing them to be argued without the proper predicate, a motion for reconsideration laying out the grounds for the judge to revisit his predecessor's legal rulings. If anything, Judge Audlin's failure to rule on several critical motions the past six weeks will compel us to file a motion to continue the bench trial on liability – thereby postponing the liability trial several months.

May 15, 2007. Finally, we appeared in Key West for what was to be an "all-day" hearing on pending motions – only to be told at 9:15 AM that we had until 11:30 AM to argue everything pending before the Court. (Even the governments' lawyers were surprised by this change.)

April 17, 2007. We filed a motion to extend the discovery period – back to the original May 29 deadline – in light of the fact that we cannot obtain a timely ruling on our motion to limit the number of Defendants' witnesses. Naturally, we cannot get a hearing on the motion until May 15th. Something is clearly wrong with this picture, in case you hadn't noticed.

April 13, 2007. Judge Audlin declined consideration of our motion on an emergency basis, postponing it until yet another Case Management Conference on May 15, 2007. He also moved the hearings on our two pending Motions for Partial Summary Judgment from April 26 and May 1 to May 15. This puts us in the awkward position of taking the depositions of 102 people – most of whom were never going to testify in the first place – while the government thinks it can depose our handful of real witnesses before discovery ends on the 30th of April. They may be surprised at our response.

At this point, nothing can be accomplished for a month – until May 15, 2007. Meanwhile the discovery period runs out and we are placed in the awkward position of going to trial without knowing what the government's defenses are going to be.

April 12, 2007. We served an Emergency, ex-parte, motion asking the Court to order Defendants to provide details on what each of their 102 witnesses would say at trial, to justify each of the witnesses, and to set a limit on the number of witnesses the defense can call. We asked the Court to issue an ex parte order, without a hearing, requiring compliance by 5 PM Monday, April 16, 2007. It is disturbing to see the depths to which ethically-challenged attorneys will descend when they have no case.

As this case (and the Galleon Bay case) came close to denouement, the Government's lawyers went berserk. After dragging the case out as long as possible, the defendants' lawyers come up with insane theories during the run-up to trial. They delay revealing their theories until the last minute (they probably don't think them up until the last minute), hoping to confuse the Landowners' lawyers and the Court enough to reduce the damages the taxpayers must ultimately pay.

April 11, 2007. We served a Second Motion for Partial Summary Judgment, to be heard on May 1, 2007. This motion asks the Court to rule – as a matter of law – that the Monroe County Commission's official Resolutions in 2002 and 2004, stating that Plaintiffs "had been deprived of all economically beneficial use of their property" – mean what they say.

April 10, 2007. Both sides served Witness Lists for the June 18, 19 & 25 bench trial on Liability. We identified six witnesses, two of whom were alternates for Glen Boe, in the case that he is unavailable to testify. Monroe County identified eighty-eight (that's right, 88) "fact witnesses" and 14 "expert witnesses" – 102 witnesses to be called in a 3-day trial.

April 6, 2007. We served a Motion for Partial Summary Judgment to be heard on April 26, 2007. This Motion would preclude the Defendants from calling all of the Plaintiffs – and their spouses, children, and dogs – as witnesses in the liability trial. It is our position that only objective evidence, not the subjective beliefs of the landowners themselves, has any merit in determining the Plaintiffs' "reasonable investment backed expectations" when they (or their devisors) acquired the subject properties. Such objective evidence can only be elicited from a neutral, third party expert who is familiar with the zoning regulations in effect at the time of purchase.

March 27, 2007: Judge Audlin's "benign neglect" gives the government a free hand to turn pending trial into a circus act

March 27, 2007. Monroe County had requested yet another "Case Management Conference." It was at the March 27, 2007 Case Management Conference, as we discovered later, that the Defendants thought Judge Audlin had "invited" them to re-file the defenses that had recently been rejected by Judge Payne.

February 15, 2007. Judge Audlin set the case for a bench trial on liability, to be conducted on June 18, 19, and 25, 2007.

February 13, 2007. We filed a Notice of Ready for Trial, on the liability phase of this case, just in case anyone forgot the case existed.

December 31, 2006. Judge Payne retired. Key West attorney David Audlin -- who was unopposed -- assumed Judge Payne's seat on January 1, 2007.

November 6, 2006: Two years after filing, the governments' defenses are rejected and the case is at issue

November 6, 2006. Judge Payne rendered an Order DENYING Defendants' Monroe County and State of Florida's Cross Motions for Summary Judgment. The Government's voluminous and nonsensical defenses tied this case up for over 16 months. They were argued on 11/30/05 and have been kept alive by Defendants' constant pounding on the table (remember Khrushchev), hoping that they could distract the Court from the realities of the situation. The Court will set a bench trial early in 2007 to determine whether the County is liable for "taking" the plaintiffs' properties. The only issues in that trial will be "what the landowner could have done when the property was purchased" and "what the landowner can do today." Once liability is established, a jury trial on "just compensation" will be had.

A bench trial on liability is the next step. This cannot occur before January 2007, when Judge Payne will have retired and Judge Audlin will have replaced him. Defendants are candidly expecting that Judge Audlin will re-visit and reverse some of Judge Payne's rulings.

October 30, 2006. We had a contentious, 2-hour hearing before Judge Payne, who rejected the State and County's "withdrawal" of their summary judgment motions. The Court then proceeded to hear argument on the motions. Defendants -- displaying their usual disrespect for the Court -- refused to participate in the argument on their motions. Your kindly webmaster was the only participant in a one-sided debate. Judge Payne took the matters under advisement.

October 27, 2006. First, we received an order from Judge Payne that the October 30, 2006 Summary Judgment hearing would go on as scheduled. Around 4:30 PM, we received a phone call from the Third District Court of Appeal to let us know that the Court of Appeal had DENIED an "Emergency Petition for Writ of Prohibition" filed by Monroe County earlier in the day -- that had not been provided to Plaintiffs' Counsel, violating the rules of appellate procedure.

October 26, 2006. We received notice that the County and State purportedly "withdrew" their summary judgment motions that had consumed the past 15 months of this case.

September 26, 2006. Judge Payne conducted the Case Management Conference. He ordered the parties to file trial memoranda by October 26, 2006, and set another hearing in this case for October 30, 2006. The Court will rule on the pending Summary Judgment motions (filed by the County and State) and -- should he rule against them -- he will consider the trial memoranda and set a date for a bench trial on liability. Until the October 30, 2006 hearing, the liability trial date will not be set.

September 15, 2006. The Court set a Case Management Conference for September 26 -- continuing the liability hearing for the EIGHTH time (Continuance #8).

August 28, 2006. Monroe County requested a Pretrial Conference to head off the 9/25-26 liability hearing.

August 22, 2006. Plaintiffs' Notice of Hearing had the desired effect -- at least, it kicked this case back into first gear, maybe second gear.

August 22, 2006. As the Court had not ruled on the governments' motions for summary judgment, Plaintiffs sought to move the case along by noticing the continuance of the ill-fated November 2005 liability hearing, setting a new hearing date of September 25-26, 2006 -- ten months after it was scheduled prior to Continuance #7.

May 11, 2006. Three days later, the State's 2-page Amended Answer adopted the County's gargantuan piece of junk.

May 8, 2006. Monroe County's high-priced lawyers coughed up yet another overwrought, overpriced, and over-thought, three-pound Answer and Affirmative Defenses to Plaintiffs' two-sentence amendment to their Amended Complaint.

April 4, 2006. In order to conform the Amended Complaint to the May 23, 2005, decision of the Supreme Court in Lingle v Chevron USA, Inc., 544 U.S. 528 (2005), Plaintiffs served a Motion for Leave to Amend the Amended Complaint by Interlineation -- to delete the language "does not substantially advance legitimate state interests." (The Lingle decision held that this "substantive due process" language should not have found its way into the Court's taking jurisprudence, beginning with Agins v Tiburon in 1980.)

Plaintiffs also served a Notice of Abandonment, abandoning their pending Motion for Summary Judgment on Liability, in favor of a bench trial on liability. Plaintiffs also abandoned their pending claims for damages for "extraordinary delays" in rendering their Beneficial Use Determinations. Plaintiffs' proposed Amendment by Interlineation amended Plaintiffs' assertions that the starting date of the temporary taking of each property was January 3, 1997 -- when they applied for Beneficial Use Determinations -- to the dates of Monroe County's actual Beneficial Use Determination Resolutions (between 2002 and 2004, five to seven years after Plaintiffs had applied).

March 28, 2006. The Court denied Monroe County's Motion to Strike the Affidavits of Donald Craig and Peter Heebner, and the transcript of a deposition (in this case) of Monroe County's Planning Director, Marlene Conaway. The County was given until April 12, 2006, to file counteraffidavits if it chose to do so. It did not do so, but rather filed yet another memorandum of law on an issue it had not raised before.

February 13, 2006. Monroe County served its Reply Memorandum to Plaintiffs' two Supplemental Memoranda filed on January 27, 2006, on the two statute-of-limitations defenses. It also served a Motion to Strike several filings associated with Plaintiffs' January 27, 2006 memoranda.

January 30, 2006: The governments' Summary Judgment motions are denied in companion case

January 30, 2006. Judge Payne ruled against the County and State in the case of Galleon Bay Corp. v. Monroe County & the State of Florida. The County and State Motions for Summary Judgment included the same two Statute of Limitations issues they raised in Collins  It is reasonable to assume that he will similarly rule against the government in Collins.

January 27, 2006. Plaintiffs' responses on the 90-day statute of limitations argument and the four-year statute of limitations argument were served January 27, 2006. The government had until February 8, 2006, to serve replies.

December 20, 2005. The County's Supplemental "Memorandum," served December 20, 2005, ran to 29 pages plus several pounds of attachments. The State served its Supplemental Memorandum of Law on December 20, 2005.

November 30, 2005. The Court conducted a 4.5 hour hearing on the governments' summary judgment motions. Plaintiffs submitted a 23-page Memorandum of Law rebutting the government's 15 alleged defenses. The Court ordered supplemental memoranda on two points, both of which involved statutes of limitation.

November 8, 2005. The County moved for a continuance of the bench trial on liability scheduled for November 29-30, and asked that its motion for summary judgment be heard on November 29 or 30 instead. Plaintiffs opposed the continuance but the Court granted the County's motion on November 17 (Continuance #7).

October 19, 2005 (Wilma Continuance). The summary judgment motions scheduled to be heard on October 24, 2005, were cancelled in light of the projected arrival of Hurricane Wilma.

August 25, 2005 (Katrina Continuance). Hurricane Katrina slid past the Florida Keys, headed for New Orleans, and the August 30 hearing on all parties' summary judgment motions were postponed to October 24, 2005.

August 16, 2005. Plaintiffs served a Notice for Trial on Liability. In the event that disputed issues of material fact are raised at the Summary Judgment hearing – preventing entry of Summary Judgment on Liability – a two-day bench trial, with fact witnesses and expert testimony, will determine whether there has been a regulatory taking of Plaintiffs' properties. The trial date was set for November 29 and 30, 2005 (Continuance #6).

August 10, 2005. 20 days before Plaintiffs' Motion for Summary Judgment was scheduled to be heard, the County hand-delivered copies of a Cross-Motion for Summary Judgment to Plaintiffs' counsel, and scheduled its "Cross-Motion" for hearing on August 30, 2005 -- the same day that Plaintiffs' Summary Judgment motion was scheduled to be heard.

July 29, 2005. The State served its Motion for Summary Judgment, urging dismissal of the Plaintiffs' lawsuit.

July 22, 2005. The State withdrew its Motion to Dismiss the County's Third Party Complaint, and filed both an Answer to Plaintiffs' Complaint and an Answer and Affirmative Defenses to the County's Third Party Complaint.

June 21, 2005. During a hearing on discovery motions, the State's attorney, Jonathan Glogau, said August 16 was a bad day for him, and Monroe County's lead counsel, Robert Freilich, would be recovering from back surgery and unable to travel. Plaintiffs' Summary Judgment hearing reset to August 30, 2005 (Continuance #5).

June 3, 2005. The County moved to postpone Plaintiffs' Summary Judgment hearing another 90 days, to September 21, 2005. The Court granted a 30-day continuance to July 21. (Continuance #2). Again at the County's request, the Summary Judgment hearing was reset for August 1, in Key West (Continuance #3). The County, running out of ideas, complained it was in Key West -- and this is a Marathon case -- so the Summary Judgment hearing was re-set for August 16 in Marathon (Continuance #4).

April 7, 2005. The State of Florida filed a Motion to Dismiss the County's Third Party Complaint. It later withdrew this motion.

March 15, 2005. The Court granted the County a 90-day continuance of the Summary Judgment hearing, to June 21 (Continuance #1), to give the late-arriving out-of-town lawyers time to obtain appraisals of plaintiffs' properties and conduct discovery.

February 25, 2005. Plaintiffs served their Motion for Summary Judgment on Liability, setting a hearing for March 22, 2005. On March 15

February 18, 2005. Monroe County served a Third-Party Complaint on the State of Florida.

January 31, 2005. Freilich, et al., served the County's Answer to Amended Complaint.

December 2004. Monroe County retained three out-of-state attorneys to represent it. Two -- Stephen Moore and Tyson Smith -- were from Kansas City, Missouri, and one, the County's lead counsel -- Robert Freilich -- had just moved from Kansas City to Los Angeles. At the County's request, Plaintiffs agreed to an extension of time for service of the County's Answer. In exchange, the County agreed to forego filing a Motion to Dismiss, and would instead serve an Answer to the Amended Complaint.

November 22, 2004: Eleven Landowners sue Monroe County for Regulatory Takings

November 22, 2004. Ten Plaintiffs were named in a Complaint against Monroe County, filed November 22, 2004. An additional Plaintiff was added in the operative Amended Complaint, served 11 days later (December 3, 2004). The Just Compensation sought by the 11 Plaintiffs was slightly over $6 million -- as of January 2005 -- plus costs and attorneys fees.