          Case: 16-16402    Date Filed: 05/16/2018   Page: 1 of 18


                                                                       [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-16402
                      ________________________

               D.C. Docket No. 8:13-cv-03170-JDW-MAP




PAUL CHMIELEWSKI, et al.,

                                               Plaintiffs-Appellees,

versus

THE CITY OF ST. PETE BEACH,



                                               Defendant-Appellant.

                      _______________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________



                              (May 16, 2018)
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Before ED CARNES, Chief Judge, and NEWSOM and SILER, * Circuit Judges.

SILER, Circuit Judge:

       In this appeal of an inverse condemnation action, Defendant-Appellant the

City of St. Pete Beach (“the City”) challenges a jury verdict in favor of Plaintiffs

Katherine A. Chmielewski and Paul Chmielewski, as personal representative of the

estate of Chester Chmielewski (“the Chmielewskis”). The underlying dispute

involves a beachfront parcel, owned by the Chmielewskis, which experienced

significant public usage. At trial, the jury found that the City encouraged and

invited access by the general public, causing a seizure of the Chmielewskis’

residential property and a taking of their beach parcel. After trial, the district court

denied the City’s motions for judgment as a matter of law and for a new trial. For

the following reasons, we AFFIRM.

           FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       The beachfront property at issue in this case is located in the Don CeSar

Place Subdivision in St. Pete Beach, Florida. The subdivision includes two

blocks—Block M and Block N—that run parallel to the Gulf of Mexico. Between

Block N to the north and Block M to the south stands the Don CeSar Hotel (“the

Hotel”) and the Hotel’s privately-owned beach property. The Chmielewskis’ home

sits adjacent to Block M, three lots south of the Hotel. They purchased this lot in

       *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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1972, and as part of a 1975 insurance settlement, they acquired title to the

beachfront portion of Block M contiguous to their residence, confirming that their

property extended across Block M to the mean high water line (“MHWL”) of the

Gulf. This property—the “beach parcel”—is approximately 300 feet deep (east-

west) and includes 50 feet of the Block M sidewalk, dunes, and sand. Under

Florida law, the beach area between the water and the MHWL is available for

public use, regardless of ownership in the Subdivision.

                            Chmielewskis’ Ownership Rights

       In 2006, the Chmielewskis initiated a quiet title action against the City, the

Hotel, and the Don CeSar Place Property Association to confirm their ownership of

the beach parcel. The Chmielewskis obtained partial summary judgment in 2008,

establishing their fee simple ownership in the residential lot and in the contiguous

strip of beach parcel, subject to a 1925 plat restriction. The restriction provides

that all Don CeSar Subdivision owners retain their right to use Block M, including

the Chmielewskis’ beach parcel, for “beach and bathing purposes.” 1 The plat also

prohibits building any structure on Block M, including on the Chmielewskis’

beach parcel. As part of a settlement in the quiet title action, the City agreed that



       1
         A private sidewalk runs north-south, the length of Block M, and parallel to dunes, sand
beach, and the Gulf of Mexico. There was no dispute that this sidewalk is part of Block M, and
Don CeSar Subdivision owners, their family, friends, and guests have the right to use this
sidewalk and traverse all of Block M.


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its ownership of five lots in the Subdivision did not give the general public the

right to use Block M, including the Chmielewskis’ beach parcel.

      The original subdivision developer’s residence adjoined Block M, just north

of the Chmielewskis’ property. During World War II, the federal government

acquired that land, known as the Don Vista property. In 1975, it deeded this

property to the City with the requirement that the lot (“the mini-park”) could not be

used for public beach access.

                   City’s Renovation of the Don Vista Property

      From 2003 to 2005, the City used a federal grant to renovate the developer’s

residence—the Don Vista Building—and turn it into a community center. As part

of those renovations, the City beautified the mini-park, installed benches, and

cleared a direct public access path from the mini-park across Block M to the Gulf.

For good measure, the City also cleared out the overgrowth on the Block M

sidewalk behind the Chmielewskis’ house. At both the north and south ends of

Block M, the City posted large, circular signs with the City’s emblem stating

“Beach Access.” These signs were visible to passing motorists on El Centro

Street.

      The City also cleared and improved the parking lot next to the Don Vista

building, grassed and landscaped the area, and removed the fencing around the

parking lot, as well as the chains and gate that blocked its entrance and had


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previously prevented after-hours entry or use. The City made the area attractive

with convenient public parking to facilitate beach access. In addition, the City

installed metered public parking across the street (within half a block) for Block M

beach access parking and publicly announced that it had provided parking to allow

the public to use the Block M beach. On its website, the City published a map

showing public access to the Block M beach at the Don Vista Center. At a public

meeting, the City Manager proclaimed that the City had invested lots of money to

have a beautiful center and needed to put it to full use by having the visiting public

use the Block M beach.

                 City’s Zoning Maps and Access to Beach Parcel

      While the City was renovating the Don Vista Center, it also zoned and

mapped Block M, including the Chmielewski beach parcel, as “recreation open

space/public park.” This designated the property as a public beach for public use,

inconsistent with the Chmielewskis’ private ownership rights. A former director of

planning testified that the City’s zoning designation for Block M meant that it was

for public use, including the dunes area, and he considered that area to be public.

This former city planner also testified that he frequented the Block M beach as a

private citizen, parking his car at the Don Vista facility and using the beach access

from there. He believed that the Block M beach was public and that he was

allowed to go there and engage in normal beach activities. He traversed all over


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Block M, observed other individuals coming and going through the property, and

saw nothing to discourage these actions.

      After the renovations, the City was motivated to encourage use of the Don

Vista Building and its amenities. The City also entered into an agreement with the

SunTan Art Center, a 501(c)(3) nonprofit organization, to operate the Don Vista

Building as a community art center. The facility offered arts and crafts, yoga, art

exhibits, and art sales. On Sundays, the Suntan Art Center hosted a flea market

from 10:00 a.m. to 3:00 p.m.

                 Trespassers on the Chmielewskis’ Beach Parcel

      At trial, witnesses testified that before the City’s renovations, the

Chmielewskis’ property and area around it “was quiet, serene, pleasant and

peaceful, with only an occasional neighbor coming to the beach and not much foot

traffic or heavy use.” However, after the renovations, members of the public

regularly trespassed onto the Chmielewskis’ property, cutting through or walking

along the side of their residence from the public parking areas. People also walked

up the private sidewalk in front of their house and over dunes, or from the mini-

park over the dunes and across to the Chmielewskis’ beach parcel. On weekends

and holidays, beachgoers flocked to Block M in large numbers and onto the

Chmielewskis’ beach parcel, often coming down either end of Block M where City

signs stated “Beach Access.”


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      The Chmielewskis believed the people coming onto their property were

members of the general public, not subdivision residents who had a legal right to

access the beach parcel. Having lived in the subdivision for forty-one years, the

Chmielewskis knew their neighbors and did not recognize the people trespassing

on their beach property. They testified that Don CeSar residents “generally walked

to the beach for a short time; unlike the persons using Block M, they did not drive

there, park in the Don Vista lot or at City parking meters, bring tents, coolers or

lots of paraphernalia, stay all day or into the night, or come in large numbers.”

When the Chmielewskis spoke with people they encountered on their beach parcel,

some said they were from out of town and others refused to answer questions.

      When Mr. Chmielewski called the City about unauthorized persons on his

beach parcel, the City declined to enforce its trespassing laws. Instead, when Mr.

Chmielewski placed lawn furniture on the private sidewalk in an attempt to block

the public from walking across his beach parcel, City police removed the furniture

and threatened to arrest him.

      The City also facilitated public use of Block M. The City Manager said

people who used the Don Vista property could use Block M for a wedding. And

the Chmielewskis often noticed nuptials on the beach parcel. The City held public

events on Block M. It organized a large wiffle ball tournament in 2009 that

occurred along Block M, including the beach parcel. Several hundred individuals


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attended the event. A police officer told one Chmielewski family member that the

event was private and made him leave his own property.

                            The Chmielewskis’ Lawsuit

      In 2009, the Chmielewskis initiated the underlying lawsuit pursuant to 42

U.S.C. § 1983 alleging an unreasonable seizure of their property in violation of

their Fourth Amendment rights and an unlawful taking of their beach parcel

without full compensation in violation of the Florida Constitution. The

Chmielewskis alleged that the City had encouraged and invited the general public

to use Block M and, as a result, they suffered a seizure of their residential property

and a taking of their beach parcel.

      Before trial, the district court denied the City’s motion for summary

judgment. The court found there was evidence that the City had invited or

facilitated members of the public to access Block M and that those individuals

traversed, and thus interfered with the Chmielewskis’ possessory interest in their

beach parcel. The district court further held that disputed issues of material fact

existed as to whether the interference was meaningful, that is, sufficiently constant

and physical to interfere with the Chmielewskis’ possessory interests.

                         Jury Verdict for the Chmielewskis

      A four-day jury trial ensued. At the close of the Chmielewskis’ case, the

district court denied the City’s motion for a directed verdict. The jury returned a


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verdict for the Chmielewskis on both the federal § 1983/Fourth Amendment claim

(“Count I”) and the state inverse condemnation claim (“Count II”). On Count I,

the jury awarded emotional distress damages as well as property-related damages,

which the district court subsequently found were duplicative of the damages

awarded for Count II.2 The jury awarded $1,489,700 on Count II—the exact

amount that the Chmielewskis’ appraiser testified represented “just compensation”

for the value of the entire beach parcel plus the severance damages to the

Chmielewskis’ residential property.

       After trial, the City moved for judgment as a matter of law and a new trial on

both counts. The district court held that the evidence was sufficient to support the

jury’s finding that the City had meaningfully interfered with the Chmielewskis’ use

and enjoyment of their property, in violation of the Fourth Amendment, and that

the Chmielewskis had presented substantial evidence from which a reasonable jury

could find that the City’s statements and actions had demonstrated “more than a

passive attitude” about the public’s use of the Chmielewski property. On the

takings claim, the district court also held that the evidence supported a finding that

the City:



       2
          On April 19, 2017—after the completion of appellate briefing but before oral
argument—the parties notified this court that Count I, the Fourth Amendment seizure claim, “has
been settled and is no longer an issue in this appeal.” Accordingly, we have limited our analysis
to Count II, the Florida takings/inverse condemnation claim.
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             created a right of public access across Block M behind
             the Don Vista Center, so that a fair-minded person could
             conclude that the City’s actions gave members of the
             public a permanent and continuous right to pass to and
             fro on Block M, so that the Chmielewski Block M beach
             parcel may be continuously traversed.

The district court also denied the City’s request, in the alternative, to compel

transfer of fee simple title to the Chmielewskis’ beach property.

                            STANDARD OF REVIEW

      The City challenges two specific post-trial rulings of the district court: (1)

the denial of its motion for judgment as a matter of law under Federal Rule of Civil

Procedure 50, and (2) the denial of its motion for a new trial under Rule 59.

      Under Rule 50, the “proper analysis is squarely and narrowly focused on the

sufficiency of evidence,” that is, whether the evidence is “legally sufficient to find

for the party on that issue.” Chaney v. City of Orlando, 483 F.3d 1221, 1227 (11th

Cir. 2007). All reasonable inferences are drawn in favor of the nonmoving party,

no credibility determinations may be made, the evidence may not be weighed, and

evidence that the jury need not have believed is to be disregarded. Reeves v.

Sanderson Plumbing Prods., 530 U.S. 133, 150-51 (2000). Such a motion is to be

granted “only if the evidence is so overwhelmingly in favor of the moving party

that a reasonable jury could not arrive at a contrary verdict.” Middlebrooks v.

Hillcrest Foods, Inc., 256 F.3d 1241, 1246 (11th Cir. 2001).



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      A Rule 59 motion for a new trial based on evidentiary grounds is to be

granted only if the verdict “is against the clear weight of the evidence or will result

in a miscarriage of justice.” Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556

(11th Cir. 1984) (quotation marks omitted). “Because it is critical that a judge

does not merely substitute his judgment for that of the jury, new trials should not

be granted on evidentiary grounds unless, at a minimum, the verdict is against the

great—not merely the greater—weight of the evidence.” Lipphardt v. Durango

Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001).

                                    DISCUSSION

      As the Supreme Court has held, inverse condemnation cases inherently

require a fact-intensive analysis. “No magic formula enables a court to judge, in

every case, whether a given government interference with property is a taking.”

Ark. Game & Fish Comm’n v. United States, 568 U.S. 23, 31 (2012). The

Supreme Court has drawn some bright lines, but “most takings claims turn on

situation-specific factual inquiries.” Id. at 32. In this appeal, the City argues that

the inverse condemnation award must be reversed because there is no evidence of a

taking under Florida law. Alternatively, the City contends that if the judgment is

enforced, it should receive title to the beach parcel.

      We are unpersuaded by the City’s arguments. First, the evidence at trial

supported the jury’s finding that a physical taking occurred through the continuous


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occupation of the Chmielewskis’ property by members of the general public.

Through its actions, the City encouraged public occupation by placing beach

access signs, clearing vegetation, creating nearby parking spaces, hosting events at

the property, and refusing to remove trespassers. Second, there was no basis to

grant a new trial. Third, on the City’s request for fee simple ownership of the

beach parcel upon payment of the judgment—we hold that such relief is not

warranted under Florida law and the district court did not abuse its discretion in

denying the City’s request to transfer title.

                            I.   Permanent Physical Taking

       Article X, § 6(a) of the Florida Constitution provides, “No private property

shall be taken except for a public purpose and with full compensation therefor paid

to each owner . . . .” This clause prohibits the government from taking private

property for a public use without paying for it. Storer Cable T.V. of Fla., Inc. v.

Summerwinds Apartments Assocs., Ltd., 493 So. 2d 417, 419-20 (Fla. 1986).

Because Florida follows federal takings law, we can look to cases brought under

the Fifth Amendment to inform our analysis. 3

       A physical invasion constitutes a per se taking, in part because the “power to

exclude has traditionally been considered one of the most treasured strands in an


       3
         See St. Johns River Water Mgmt. Dist. v. Koontz, 77 So. 3d 1220, 1226 (Fla. 2011)
(holding that the takings clause of the Fifth Amendment and the takings clause of the Florida
Constitution are interpreted coextensively), rev’d on other grounds, 570 U.S. 595 (2013).
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owner’s bundle of property rights.” Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 435 (1982). A plaintiff need not demonstrate direct

government appropriation of private property to prove a taking. A taking also

occurs when the government gives third parties “a permanent and continuous right

to pass to and fro, so that the real property may continuously be traversed.” Nollan

v. Cal. Coastal Comm’n, 483 U.S. 825, 832 (1987).4

       Moreover, even a temporary or intermittent invasion of private property can

trigger physical takings liability. Ark. Game & Fish Comm’n, 568 U.S. at 32

(holding government-induced recurrent floodings, even if temporary in duration,

are not categorically exempt from Takings Clause liability).

                     City’s Actions Encouraged Use of Beach Parcel

       In this case, the City encouraged public use of the beach parcel by:

   - clearing the sidewalk abutting the Chmielewski residence and placing
     prominent “beach access” signs to encourage public use of the beach parcel;

   - removing chairs the Chmielewskis had placed on the sidewalk in an attempt
     to block its use by the public;

   - installing parking meters near the beach parcel and encouraging Don Vista
     Building patrons to access the beach after visiting the SunTan Arts Center;

   - allowing weddings and other public events to be held on Blocks M and N;

       4
         In Nollan, the Supreme Court held that the government could not take an easement for
the public to cross a privately owned beach parcel without paying for it. 483 U.S. at 831. Even
though “no particular person [wa]s permitted to station himself permanently upon the premises,”
the taking of “a permanent and continuous right to pass to and fro” across privately owned beach
property constituted a “permanent physical occupation” and a per se taking. Id. at 831-32.
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   - using Block M for a July 4th celebration, even after the property owners in
     the subdivision voted to deny the City’s request to use the property;

   - publicly using Lot M for the mayor’s charity wiffle ball tournament and
     having police threaten to arrest Mr. Chmielewski when he objected; and

   - taking the public position, through its City Manager, that anyone authorized
     to use the Don Vista Center could use Block M, notwithstanding the City’s
     concession in the 2008 quiet title settlement agreement that members of the
     general public would not be allowed to use Block M.

Each of these actions resulted in frequent public use of the beach parcel. In light of

these facts, it cannot be said that the evidence was “so overwhelmingly in favor of

the [City] that a reasonable jury could not arrive at a contrary verdict.”

Middlebrooks, 256 F.3d at 1246.

      The City points to the district court’s statement that “[t]he City has never

asserted ownership or exclusive control over that strip owned by Mrs.

Chmielewski [the beach parcel].” Yet ownership and exclusive control are not

necessary elements for a takings claim. See Loretto, 458 U.S. at 427 n.5

(providing that a physical taking occurs when government “deliberately brings it

about that . . . the public at large regularly use or permanently occupy space or a

thing which theretofore was understood to be under private ownership”); Rubano

v. Dept. of Transp., 656 So. 2d 1264, 1267 (Fla. 1995) (recognizing a taking if the

government “by its conduct . . . has effectively taken” private property).

      At trial, the Chmielewskis presented sufficient testimony and evidence to

show that the continuous public trespassing and occupation of their property was
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the natural and intended effect of the City’s actions. Moreover, the agreed-upon

jury instruction stated that the City is responsible for a public occupation taking if

“actions attributable to the government, result in a permanent physical occupation

of the property by the government itself or by others.”

      Denying post-trial relief, the district court found the evidence could support

a finding by a reasonable jury that the City “authorized or encouraged constant

physical occupation of the Chmielewskis’ property by the public.” This finding

alone is enough to hold the City liable for a physical taking. Nollan, 483 U.S. at

832. The City’s actions, therefore, imposed a de facto public access easement on

the Chmielewskis’ property.

                            II.   Motion for New Trial

      The district court denied the City’s Rule 59 motion for a new trial, holding

that “the jury’s verdict on liability on both Counts was supported by sufficient

evidence, including reasonable inferences drawn from the evidence. The jury’s

verdict is not contrary to the great weight of the evidence.” Nonetheless, the City

asks us to reverse, arguing that the “the great weight of the evidence does not

support the jury’s verdict on either claim.” We are unpersuaded by this argument.

The standard of review on a motion for a new trial is abuse of discretion. Wolff v.

Allstate Life Ins. Co., 985 F.2d 1524, 1528 (11th Cir. 1993). For the reasons

articulated above, there is no basis to disturb the jury’s verdict.


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                           III.    Transfer of Fee Title

      In its post-trial motions, the City—for the first time—asked the district

court, in the alternative, to transfer title to the Chmielewskis’ beach parcel. Citing

no authority and providing no explanation or analysis, the City raised the following

one-sentence request for relief in the final paragraph of its twenty-five-page

motion: “Finally if any amount is awarded for Count II (the takings claim), the

CITY requests that title to the pathway and the beach parcel be transferred to the

CITY.” In a footnote, the district court summarily addressed and denied the City’s

“transfer of title” demand, ruling that “[i]n the final sentence of the motion, the

City requests that title to the pathway and beach parcel be transferred to the City if

damages are awarded for Count II, but provides no authority for this request. It is

therefore denied.”

      Likewise, we are not swayed by the City’s argument that title to the beach

property should transfer so as to prevent a “windfall at the expense of the public.”

The City claims it would be inequitable for the Chmielewskis to retain fee title

when the jury found the City had affected a physical taking of the entire beach

parcel and had awarded damages for the full value of the property. Yet in

returning a verdict for the Chmielewskis, the jury simply found that the City had

taken for itself, or for the public, “a permanent and continuous right to pass to and

fro” over the property. The district court agreed, denying the City’s Rule 50


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motion and holding that a reasonable jury could find, as this jury had, that “the

City’s actions gave members of the public a ‘permanent and continuous right pass

to and fro’” on the beach parcel. This is in the nature of an easement. See Nollan,

483 U.S. at 827-28, 831; Loretto, 458 U.S. at 433. It is not title ownership.

      Under Florida law, the taking of an easement may, in some cases, amount to

the taking of the full value of the fee with resultant severance damages, but “naked

fee title” still remains in the property owner. Smith v. City of Tallahassee, 191 So.

2d 446, 448 (Fla. Dist. Ct. App. 1966). As the Chmielewskis observed in

supplemental briefing, “[i]f the taking included legal title, the City arguably could

erect rest shelters, widen the sidewalk across the Chmielewskis’ property, alter the

terrain on the dunes, or remove the Chmielewskis[’] narrow pathway across the

beach parcel toward the water.”

      Moreover, Florida law provides that the City “is not permitted to acquire a

greater . . . interest [in condemned property] than is necessary to serve the public

purpose for which the property is acquired.” Trailer Ranch, Inc. v. City of

Pompano Beach, 500 So. 2d 503, 507 (Fla. 1986). The one and only public

purpose the City ever asserted for what it did to the Chmielewskis’ property was

the need to provide public access to the beach. Because existing plat restrictions

prevented the land in question from being developed, the City needed nothing

more than a public easement across the land to accomplish its goal of beach access.


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      Finally, the jury’s award of inverse condemnation damages was based on an

appraisal by the Chmielewskis’ expert who used a “before and after” approach to

determine the loss of value to the Chmielewskis’ property as a result of the

easement-type taking. The appraiser’s estimate was not introduced as a market

valuation of the fee simple estate.

      Therefore, we affirm the district court’s ruling denying the City’s request to

transfer title of the beach parcel. However, in the interest of justice, we hold that

the City has paid for, and is entitled to, a permanent easement across the

Chmielewskis’ beach property for the benefit of the public. We direct the district

court to amend its judgment to reflect this permanent easement.

      AFFIRMED.




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