Land Use/Appellate: New Briefing Just Filed in U.S. Court of Appeals for the 11th Circuit – Regarding Destruction of Evidence

In Bee’s Autos, Inc., and Wayne Weatherbee v. City of Clermont, Florida, I am privileged to work on behalf of an auto repair owner who was victimized by the municipality where his business is based, Clermont, Florida.  Now, Clermont had been targeting Weatherbee and his business for several years in a variety of vicious fashions.  Twice, I successfully represented Weatherbee on Free Speech issues after he protested city corruption through the posting of large signs.  Here is a picture of Wayne (who I think resembles either former pro-wrestler “Big Sexy” Kevin Nash or country music singer Trace Adkins) and one of his signs:

There are too many stories about what Clermont has done in targeting this hard-working, honest, industrious, local businessman.  I will only tell you about the most recent legal battle.  As part of Clermont’s campaign to drive Wayne out of business and, it is reasonably believed, expropriate his land, it wrongfully claimed that one of his properties located in Downtown Clermont had been rezoned back in 1991, and to disallow its use as an auto repair facility.  In fact, it had not rezoned, and this is only the start of the the chicanery.

In 2011, Wayne filed suit against Clermont alleging expropriation and inverse condemnation.  This is where the interesting aspects of the appeal — that I am presently pursuing on behalf of Weatherbee — come into play.  The City later filed a motion for summary judgment, meaning that it wanted the federal trial court to declare that the facts were insufficient to support Wayne’s lawsuit.  In doing so, the City asserted that Wayne had no documents authenticating his lawsuit allegations, and thus that there was no factual basis for allowing the lawsuit to continue.

The federal trial court granted summary judgment — the City won at the trial court level.  After this occurred, well after, Wayne — who was always very persistent with making public records requests, often times ignored (contrary to Florida law) by the City.  Finally, though, he uncovered documents — the first from an outside source (a retired news reporter) and the second from the City.

Here is what these documents showed:  (1)  the alleged zoning change — dating back to 1991 — was done under a different ordinance number, without any public notice, without even being mentioned in the minutes of the City’s Planning & Zoning Board; effectively, by violating Florida law, in 1991, the City supposedly rezoned that area — completely in covert fashion; (2)  the evidence of this was destroyed by the City — one month after it was served with Wayne’s lawsuit.  So, the City violated state law and its own ordinances in adopting an illegal zoning change; and the City destroyed/spoiled evidence that would have demonstrated these illegal actions.  Effectively, the City broke the law and then attempted to conceal it, all the while arguing in Court that the documents never existed.

Now, on Appeal before the U.S. Court of Appeals for the Eleventh Circuit, based in Atlanta, Georgia, the City is claiming that even if the documents did exist that Wayne should have discovered this if only he had demonstrated better diligence.  In other words, if Wayne had only looked harder, he would have discovered the evidence of destruction.  The City argues that, because Wayne did not find these documents and records of their destruction, that it is now too late to reinstate his lawsuit.

So, in my Reply Brief (I filed the Initial Brief, the City responded two weeks ago with its Answer Brief), filed last night, I decided to break the spoliation of evidence issue down even further:  to the level of Bart Simpson (trademarked) and his famous “I didn’t do it” (trademarked and copywritten) remark.  I found a Simpsons (trademarked) chalkboard generator.  I then filled it in, and pasted it into my Reply Brief.  You can find it pasted, below.  Is it a quirky maneuver?  Yes.  However, the issues in this case involve such egregious, unlawful actions by public officials.  In order to ensure that the case does not simply get unnoticed or buried amidst the slew of other appeals sitting at the 11th Circuit, something needed to be done to make this Appeal stand out.