Hillcrest Property, LLP v. Pasco County et al

Filing 258

ORDER granting 239 --motion for summary judgment on liability; vacating Doc. 186 to the extent the order denies without prejudice the motion (Doc. 135 ) to exclude Schwartz's testimony and the motion (Doc. 135 ) is granted; directing the clerk to ENTER JUDGMENT on Count II and to CLOSE the case; establishing the time within which to move for an attorney's fee and costs. Signed by Judge Steven D. Merryday on 9/29/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HILLCREST PROPERTY, LLP,
Plaintiff,
v.

CASE NO. 8:10-cv-819-T-23TBM

PASCO COUNTY,
Defendant.
____________________________________/
ORDER
I. Liability
A March 9, 2012 report and recommendation (Doc. 168) and an April 12,
2013 order (Doc. 196) hold that Pasco County’s “Right of Way Preservation
Ordinance” on its face violates due process.1 Because the application of a facially
unconstitutional ordinance necessarily establishes a meritorious as-applied
due-process claim, Hillcrest’s motion (Doc. 239) for summary judgment on the
“as-applied substantive due process” claim in Count II is GRANTED for the reasons
stated in the March 9, 2012 report and recommendation (Doc. 168) and in the
April 12, 2013 order (Doc. 196).

1

Hillcrest Property, LLC v. Pasco County, 754 F.3d 1279 (11th Cir. 2014) (Alarcón, J.), decides
nothing about the holding of the March 9 report and recommendation or the April 12 order and
“express[es] no view as to the merits of Hillcrest’s pending as-applied substantive due process
claim.” Rather, Hillcrest holds that Florida’s four-year limitation bars Hillcrest’s facial challenge.
Effectively immunizing a flagrantly unconstitutional statute or ordinance from a facial challenge,
Hillcrest encourages a state or county to delay for four years and a day the enforcement of the statute
or ordinance (the absence of pre-limitation enforcement yields no victim with an injury sufficient to
satisfy Article III).

II. Damages
“The as-applied due process claims seek neither an award of damages (other
than nominal) nor an injunction ordering Pasco County to approve construction.”
(Doc. 196 at 22) Hillcrest’s success on the “as-applied substantive due process” claim
entitles Hillcrest to $1 in nominal damages.
Even if Hillcrest requested consequential damages for the “lost sale” to
Tandem Development Group, Pasco County’s motion (Doc. 240) for summary
judgment on damages warrants granting because Hillcrest presents insufficient
evidence to establish a genuine dispute of material fact about damages. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (explaining that a plaintiff must
present more than a “mere . . . scintilla of evidence” to defeat summary judgment).
Although Tandem discussed buying the land, the deal depended on Tandem’s
securing financing, which depended on Tandem’s securing an “anchor tenant” for
the shopping center that Tandem considered building on the land. Hillcrest argues
that the testimony about Publix’s “initial interest” in leasing part of the shopping
center (if and when developed) permits inferring that Tandem probably would buy
the land, but Hillcrest cites no testimony of a Publix agent to establish Publix’s intent
to lease from Tandem.
The testimony of Tandem’s principal Jonathan Schwartz confirms that
Hillcrest’s “consequential damages” depend on unadorned speculation about
Publix’s intent. Asked how often a potential lessee’s “initial interest” results in the

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construction of a shopping center, Schwartz responds, “Let’s go with 50
[percent].” (Schwartz Depo. at 33) According to Hillcrest, this casual comment can
sustain Hillcrest’s argument for several million dollars in consequential
damages. But Schwartz explains in the next breath that Publix expressed “initial
interest” to Tandem on ten other occasions, which resulted in just two developments.
(Schwartz Depo. at 33) In this instance, Publix never discussed the terms of a lease
(“it [was] too early” to discuss details), never investigated the land’s suitability for a
Publix (the discussion “[n]ever got that far”), and never committed anything to
writing. (Schwartz Depo. at 30–35) In sum, the highly uncertain prospect that
Publix’s “initial interest” might eventually result in Tandem’s buying the land cannot
support consequential damages for the “lost sale.”2
CONCLUSION
The clerk is directed (1) to enter judgment on Count II in the amount of $1 for
Hillcrest Property, LLP, and against Pasco County, (2) to terminate any pending
motion, and (3) to close the case.
If no party submits a timely notice of appeal, Hillcrest may move for an
attorney’s fee and costs no later than NOVEMBER 23, 2017. If a party submits a
timely notice of appeal, Hillcrest may move for an attorney’s and costs no later than
thirty days after the mandate. If a party submits a timely notice of appeal but no

2

To the extent the November 28, 2012 order (Doc. 186) denies without prejudice the motion
(Doc. 135) to exclude Schwartz’s testimony, the order is VACATED, and the motion (Doc. 135) to
exclude Schwartz’s testimony is GRANTED.

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mandate issues (for example, because the appellant voluntarily dismisses the appeal),
Hillcrest may move for an attorney’s fee and costs no later than thirty days after this
order becomes final.
ORDERED in Tampa, Florida, on September 29, 2017.

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