                                                                  [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                           _______________________               01/18/2000
                                                              THOMAS K. KAHN
                                 No. 98-3337                      CLERK
                          _______________________
                     D.C. Docket No. 96-1223-CIV-ORL-18

JAMES R. SABOFF,
KATHY R. SABOFF,

                                                     Plaintiffs-Appellees,

                                      versus

ST. JOHN’S RIVER WATER
MANAGEMENT DISTRICT,

                                                     Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________
                              (January 18, 2000)

Before DUBINA, Circuit Judge, KRAVITCH, Senior Circuit Judge, and
NESBITT*, Senior District Judge.

NESBITT, Senior District Judge:
____________________
*Honorable Lenore C. Nesbitt, Senior U.S. District Judge for the
Southern District of Florida, sitting by designation.
      The Defendant St. John’s River Water Management District appeals from

the district court’s denial of its motion for summary judgment on res judicata

grounds. For the reasons set forth below, we reverse.



I.    Procedural Background

      In 1991, Plaintiff/Appellees James and Kathy Saboff (“the Saboffs”),

landowners in a Seminole County, Florida subdivision, filed suit against

Defendant/Appellant St. John’s River Water Management District (“the District”)

in Florida state court for inverse condemnation, procedural and substantive due

process violations, and declaratory relief, under the Florida Constitution, as well as

for federal substantive due process and equal protection violations. The District

removed the case to federal court on the basis of federal question jurisdiction.

After the District moved to dismiss the Saboffs’ federal substantive due process

and equal protection claims as unripe, the Saboffs voluntarily dismissed the federal

claims. Subsequent to remand, the state circuit court dismissed the Saboffs’ claims

for failure to state a cause of action. On appeal to Florida’s Fifth District Court of

Appeals, that court’s decision was affirmed. The Saboffs’ request for a rehearing

en banc was denied on October 23, 1996.




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      On November 14, 1996, the Saboffs filed a complaint alleging federal

substantive due process and federal equal protection claims, along with a federal

takings claim, in the District Court for the Middle District of Florida. The district

court summarily denied by “endorsed order” the District’s motion for summary

judgment. The district court found a taking and sent the determination of the value

of the taking, along with the substantive due process and equal protection claims,

to the jury. The jury returned a verdict in favor of the Saboffs on each of the

claims, awarded $100,100.00 for the taking and $14,000 for the substantive due

process violation, but found no monetary damages for the equal protection

violation. The district court denied the District’s post-trial motion for judgment as

a matter of law.



II.   Factual background

      In 1984, the Saboffs purchased an unimproved residential lot in the Springs

Landing subdivision located in Seminole County, Florida for the purpose of

constructing a single family home. The lot is approximately 0.7 acres and fronts

the Little Wekiva River. At the time of purchase, the property contained a

subdivision restriction prohibiting building on the 0.4 acres adjacent to the Little

Wekiva River, since that area was part of the one hundred year flood plain.


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      The District is a state agency with powers under Chapter 373, Florida

Statutes, to regulate activities harmful to water resources. In 1988, the Florida

legislature enacted Florida Statutes § 373.415, which mandated that the District

Governing Board enact rules establishing riparian habitat protection zones adjacent

to the waterways of the Wekiva River System, including the Little Wekiva River.

Pursuant to the legislation, the District conducted a scientific study, and based

upon that study, amended its regulatory permitting rules to establish the Riparian

Habitat Protection Zone (“RHPZ”). Any lot in the RHPZ was required to get a

management and storage of surface waters (“MSSW”) permit prior to construction.



      The Saboffs, whose lot was in the RHPZ, applied in March 1991 for a

MSSW permit for the construction of a home, swimming pool, and stormwater

treatment system on their lot. At that time, the Saboffs’ property was the only

undeveloped lot in the subdivision. The RHPZ rules required that the Saboffs

provide reasonable assurance that their proposed construction activity would not

adversely affect the wildlife functions of aquatic and wetland species in the RHPZ

and meet water quality and quantity criteria for the discharge of stormwater into

the Little Wekiva River. Since the home and pool would require the destruction of

0.3 acres of RHPZ wildlife habitat, the rules required the Saboffs to provide


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mitigation for the loss of habitat in order to receive the necessary permits. By way

of mitigation, the District proposed that the Saboffs place a deed restriction or

conservation easement over the rear 0.4 acres of the lot (“Mitigation Area”)

prohibiting construction on that portion of the property. The Saboffs requested

that they be allowed to place decking, a boardwalk, a fence, tree house, sandbox,

and a swing set in the Mitigation Area. In June 1991 the Governing Board granted

the MSSW permit for the construction of the home and pool, subject to the Saboffs

recording a deed restriction or conservation easement, with the additional

modification that the Saboffs would be allowed to clear certain types of underbrush

from the Mitigation Area.

      Interested third parties administratively challenged the permit, but the

Saboffs were allowed, through agreement with the District, to commence, and in

fact completed, construction in the non-mitigation area prior to the conclusion of

the administrative proceedings. Following completion of construction, but prior to

a final administrative decision, the Saboffs initiated their judicial challenges to the

revised permit’s conservation easement requirement. In August of 1992, the

administrative process resulted in the approval of the permit subject to the Saboffs’

recording a deed restriction or conservation easement.




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III. Discussion

       We review de novo the denial of a motion for summary judgment on res

judicata grounds. See Harris v. Board of Education of Atlanta, 105 F.3d 591 (11th

Cir. 1997); Fields v. Sarasota Manatee Airport Authority, 953 F.2d 1299 (11th Cir.

1992).

       As the district court did not provide any grounds for denying the District’s

motion for summary judgment, we are without the benefit of the reasons upon

which the district court based its decision.

       Although the District asserted a number of arguments in its motion for

summary judgment which may have resulted in the dismissal of the action, the

Court only addresses the threshold issue of res judicata as to the Saboffs’ claims

for relief.

       This case presents an issue previously recognized in Fields v. Sarasota

Manatee Airport Authority, 953 F.2d 1299 (11th Cir. 1992), a case squarely on

point. While Williamson County Regional Planning Commision v. Hamilton Bank

of Johnston City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), requires

potential federal court plaintiffs to pursue any available state court remedies that

might lead to just compensation prior to bringing suit in federal court for a takings




                                           6
claim, the doctrine of res judicata in conjunction with 28 U.S.C. § 17381 precludes

a plaintiff from pursuing in federal court a claim previously litigated in state court.

Fields, citing Jennings v. Caddo Parish School Bd., 531 F.2d 1331 (5th Cir. 1976),

cert. denied, 429 U.S. 897, 97 S.Ct. 260, 50 L.Ed.2d 180 (1976), explains that this

apparent dilemma is resolved by the plaintiff “‘reserv[ing] her constitutional claims

for subsequent litigation in federal court’ by ‘making on the state record a

reservation as to the disposition of the entire case by the state courts’ to preserve

access to the federal forum.” Fields, 953 F.2d at 1303 (quoting Jennings, 531 F.2d

at 1332). Fields held that an additional two prerequisites must be met for a

“Jennings reservation” to be effective. The potential federal court litigant must be

precluded from filing his or her suit in the federal court in the first instance and

must be in state court involuntarily. See Fields, 953 F.2d at 1306.

       Therefore, the relevant inquiry is whether Florida’s law of res judicata

would ordinarily bar the Saboffs’ subsequent federal claims and, if so, whether the

Saboffs made an effective Jennings reservation. See Fields, 953 F.2d at 1307.

“‘The Florida doctrine of res judicata bars subsequent litigation where there is (1)

identity of the thing sued for, (2) identity of the cause of action, (3) identity of

       1
         Section 1738 requires “a federal court to give a state-court judgment the same
preclusive effect as would be given that judgment under the law of the State in which the
judgment was rendered.” Migra v. Warren City School Dist. Bd. of Education, 465 U.S. 75, 81,
104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984).

                                              7
persons and parties to the action, and (4) identity of the quality or capacity of the

person for or against whom the claim is made.’” Fields, 953 F.2d at 1307-08

(quoting Amey, Inc. v. Golf Abstract & Title, Inc., 758 F.2d 1486, 1509 (11th Cir.

1986), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed. 912 (1986)). Florida

law defines identity of causes of action as causes “sharing similarity of facts

essential to both actions.” Id. (quoting Amey, 758 F.2d at 1510). The facts

underlying the state and federal claims at issue are indisputably identical. In

Fields, the court held that although a minor distinction exists between the federal

and state takings claims, the state claim precluded the subsequent federal claim

under res judicata principles. See id. Once again, Fields is on all fours, and it is

clear that Florida res judicata principles would normally preclude the subsequent

federal action.     Additionally, the state court’s dismissal of the Saboffs’ state

claims constitutes an adjudication of the merits under Florida law for the purposes

of res judicata. See Fla.R.Civ.P. 1.420(b)(“[u]nless the court in its order for

dismissal otherwise specifies, a dismissal. . . other than a dismissal for lack of

jurisdiction or for improper venue or for lack of an indispensable party, operates as

an adjudication on the merits”); Aquatherm Industries, Inc. v. Florida Power &

Light Co., 84 F.3d 1388 (11th Cir. 1996).




                                            8
      As previously stated, the only way that the Saboffs might have preserved

their federal claims, was through a Jennings reservation. Both Jennings and Fields

make clear that a Jennings reservation, as an exception to the well-settled doctrine

of res judicata, must be set forth clearly, on the record, and at the outset of the state

court claim, which was not done in this case. See Fields, 953 F.2d at 1309 n. 10;

Jennings, 531 F.2d at 1332. The Saboffs argues that they made an “implicit”

Jennings reservation, through an off the record verbal understanding with the

District that federal questions would be preserved. Even if the facts supported this

conclusion, this off the record communication is clearly insufficient to meet the

standard for a Jennings reservation as set forth in Jennings and Fields.



VI.   Conclusion

      Jennings and Fields dictate that the Saboffs’ federal law claims are barred by

Florida law of res judicata. Therefore, the district court’s denial of the District’s

motion for summary judgment was improper and is REVERSED.




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