source: Caselaw Access Project

author: CORTIÑAS, J. ROTHENBERG, J.

license: Public Domain

text:
    CITY OF AVENTURA, Florida, Appellant, v. Richard MASONE, Appellee.
    No. 3D10-1094.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 2011.
    Rehearing Denied March 6, 2012.

      Weiss Serota Helfman Pastoriza Cole & Boniske, Fort Lauderdale, and Edward G. Guedes and Michael S. Popok, Miami, for appellant.
    Bret Lusskin, Hallandale, Burlington & Rockenbach and Bard D. Rockenbach and Andrew A. Harris, West Palm Beach, for appellee.
    Carlton Fields and Samuel J. Salario, Jr., and Joseph Hagedorn Lang, Jr., Saint Petersburg, and Amanda Arnold Sansone, Tampa, as Amicus Curiae.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

      . Judge Rothenberg did not hear oral argument, but participated in the decision.

   CORTIÑAS, J.

The City of Aventura (the “City”) seeks review of the trial court’s ruling that section 48-26 of the City’s Code of Ordinances, allowing the use of image capture technologies for monitoring and enforcing laws relating to traffic control signals, is invalid and unenforceable. We reverse.

The City is a municipal corporation organized and existing under the laws of the State of Florida, and located in Miami-Dade County, Florida. On October 18, 2007, the City enacted Ordinance 2007-5, inclusive of section 48-26, which in pertinent part, authorized the City to use a monitoring system consisting of cameras at traffic lights to capture and record images of drivers who fail to stop at red lights (“red light infraction”), and issue notices of violation for such red light infractions after the images are reviewed for accuracy by a traffic control review officer appointed by the City. See Aventura, Fla., City Code, ch. 48, art. 3 & ch. 2, art. 5, § 2-348(b) (2007).

After allegedly failing to stop at an intersection monitored by automated cameras, Richard Masone (“Masone”) was issued two (2) violation notices on January 9, 2009, and January 12, 2009, respectively. Masone filed a complaint for declaratory relief, contending that the two violation notices were invalid exercises of municipal authority, and seeking that 1) the Ordinance be declared invalid, 2) the Ordinance be declared invalid to the extent it applies to red light violations, and 3) that any municipal traffic citations issued under the Ordinance be declared to be of no legal effect. Specifically, Masone argued that, in enacting the Ordinance, the City has legislated on a subject reserved exclusively for the Florida Legislature and, as such, the Ordinance is invalid because it is preempted by, and directly conflicts with, Florida law. In defending the Ordinance, the City asserted that, by adopting Chapter 316, Florida Statutes, the Legislature expressly authorized municipalities to supplement existing statewide traffic control laws by granting local municipal governments the right to regulate traffic on roadways throughout their respective boundaries through security devices such as the red light camera system adopted in the Ordinance. Further, the City argued that any penalties imposed were deemed noncriminal, non-moving violations for which a civil penalty was assessed, as authorized by the Florida Legislature for code infractions.

Ultimately, the trial court granted Ma-sone’s motion for summary judgment, reasoning that section 48-26 was an invalid exercise of municipal power without express authority from the Florida Legislature allowing the City to legislate the subject. Specifically, the trial court stated that “the problem exists with the provision of Section 48-26 which allows such cameras to be used as the sole basis for issuing citations against drivers who disobey an official traffic device.... Section 316.640(5)(a), Florida Statutes, requires that citations be issued when an officer ‘observes the commission of a traffic infraction.’ ” Based upon these reasons, the trial court concluded that section 48-26 is in direct conflict with section 316.007, Florida Statutes. We disagree.

It is well established that Florida law grants municipalities broad home rule and police powers. The Florida Constitution provides for such municipal powers, by stating that

Municipalities shall have governmental, corporate and propriety powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law.

Art. VIII, § 2(b), Fla. Const. This principle of broad municipal home rule powers is codified in chapter 166, Florida Statutes. For example, section 166.021(3)(c), Florida Statutes states:

The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:
(c) Any subject expressly preempted to the state or county government by the constitution or by general law....

§ 166.021(3)(c), Fla. Stat. (2008). The plain language therefore grants a municipal government the authority, under broad home rule powers, to enact local ordinances, which are not inconsistent with general law.

In furtherance of a municipal government’s broad home rule powers, “[a] regularly enacted ordinance will be presumed to be valid until the contrary is shown, and a party who seeks to overthrow such an ordinance has the burden of establishing its invalidity.” Lowe v. Broward Cnty., 766 So.2d 1199, 1203 (Fla. 4th DCA 2000) (quoting State ex rel. Office Realty Co. v. Ehinger, 46 So.2d 601, 602 (Fla.1950)). Also, it is clear that “[wjhere there is no direct conflict between the two, appellate courts should indulge every reasonable presumption in favor of an ordinance’s constitutionality.” City of Kissimmee v. Fla. Retail Fed’n Inc., 915 So.2d 205, 209 (citation omitted.); see also Lowe, 766 So.2d at 1203 (“An appellate court will ‘indulge every reasonable presumption in favor of an ordinance’s constitutionality.’ ”) (quoting City of Pompano Beach v. Capalbo, 455 So.2d 468, 469 (Fla. 4th DCA 1984)).

Florida’s Uniform Traffic Control Law, embodied in chapter 316, Florida Statutes, provides for uniform traffic laws throughout the state, counties, and local municipalities. §§ 316.001, 316.002, Fla. Stat. (2008). Entitled “Provisions uniform throughout state,” section 316.007, Florida Statutes, provides, in pertinent part, that

[tjhe provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized.

§ 316.007, Fla. Stat. (2008). Notably, however, the Uniform Traffic Control Law also expressly recognizes the power of municipalities to pass traffic ordinances for the regulation of municipal traffic in their respective jurisdictions. § 316.002, Fla. Stat. (2008). Enumerating certain “powers of local authorities,” section 316.008, Florida Statutes, specifies that:

(1) The provisions of this chapter shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from:
(a) Regulating or prohibiting stopping, standing, or parking.
(b) Regulating traffic by means of police officers or official traffic control devices.
(w) Regulating, restricting, or monitoring traffic by security devices or personnel on public streets and highways, whether by public or private parties and providing for the construction and maintenance of such streets and highways.

§ 316.008, Fla. Stat. (2008).

Thus, the plain text of the Uniform Traffic Control Law expressly confers authority to a municipal government to regulate traffic within its municipal boundaries as a reasonable exercise of its police power where such regulation does not conflict, but supplements the laws found therein. See §§ 316.002, 316.008(l)(w), Fla. Stat. (2008). Here, the Ordinance was enacted by the City, under its broad home rule powers in response to concerns that drivers at dangerous intersections within the municipal boundaries were failing to heed existing traffic control signals, resulting in a high incidence of serious, life-threatening accidents. As set forth in section 316.002, “[t]he Legislature recognizes that there are conditions which require municipalities to pass certain other traffic ordinances in regulation of municipal traffic that are not required to regulate the movement of traffic outside of such municipalities.” § 316.002, Fla. Stat. While chapter 316 creates traffic laws which are applicable throughout the entire state, municipalities have the power to pass certain ordinances that regulate municipal traffic within their borders. The City is in a unique position to identify dangerous intersections within its boundaries and implement additional safeguards to prevent accidents at such intersections. Accordingly, the City’s enactment of the Ordinance to regulate traffic through the use of cameras was a proper exercise of the granted authority to regulate, control, and monitor traffic movement.

The trial court found that the Ordinance conflicts with the Uniform Traffic Control Law. In order for this Court to find that there is conflict between the Uniform Traffic Control Law, and the Ordinance, both “must contradict each other in the sense that both the legislative provisions (the ordinance and the statute) cannot co-exist.” F.Y.I. Adventures, Inc. v. City of Ocala, 698 So.2d 583, 584 (Fla. 5th DCA 1997). In other words, “[t]hey are in ‘conflict’ if, in order to comply with one, a violation of the other is required.” Id. Because municipalities enjoy broad home rule powers, the regulation of vehicular traffic is a well-established legitimate exercise of municipal police power. See City of Miami v. Aronovitz, 114 So.2d 784, 788 (Fla.1959) (“Giving recognition to our established judicial viewpoint that an automobile is a dangerous instrumentality, we must concluded [sic] that any procedure lawfully directed toward the effective prevention of the negligent operation of the automobile and the imposition of requirements of competency on the part of the driver thereof, should meet with judicial approbation.”).

Here, the Ordinance is consistent, and does not conflict, with any provision found within the Uniform Traffic Control Law as mandated by section 316.007, Florida Statutes. Local authorities are explicitly granted the right to enact laws or ordinances within their home rule power, supplemental to existing state laws, to regulate, control, and monitor traffic movement. Because there is no provision in the Uniform Traffic Control Law that expressly preempts or conflicts with the Ordinance necessary to overcome the City’s exercise of its broad home rule powers, we find the Ordinance valid under Florida law.

The trial court found that the Ordinance was in conflict with section 316.640(5)(a), Florida Statutes, in so far as the subsection “requires that citations be issued when an officer ‘observes the commission of a traffic infraction.’ ” However, upon complete review, we find that section 316.640(5)(a), Florida Statutes, is applicable only to “traffic infraction enforcement officers” as employed by a municipality to issue citations for traffic or parking infractions under the Uniform Traffic Control Law. In whole, the subsection provides:

(5)(a) Any sheriffs department or police department of a municipality may employ, as a traffic infraction enforcement officer, any individual who successfully completes instruction in traffic enforcement procedures and court presentation through the Selective Traffic Enforcement Program as approved by the Division of Criminal Justice Standards and Training of the Department of Law Enforcement, or through a similar program, but who does not necessarily otherwise meet the uniform minimum standards established by the Criminal Justice Standards and Training Commission for law enforcement officers or auxiliary law enforcement officers under s. 943.13. Any such traffic infraction enforcement officer who observes the commission of a traffic infraction or, in the case of a parking infraction, who observes an illegally parked vehicle may issue a traffic citation for the infraction when, based upon personal investigation, he or she has reasonable and probáble grounds to believe that an offense has been committed which constitutes a noncriminal traffic infraction as defined in s. 318.14.

§ 316.640(5)(a), Fla. Stat. (2008). The plain language mandates that a traffic infraction enforcement officer may issue a traffic citation after the observation of the commission of either a traffic or parking infraction for which he or she has reasonable and probable grounds to believe that a noncriminal traffic infraction was committed under section 318.14, Florida Statutes. Thus, the subsection is limited in scope to specific traffic infraction enforcement officers operating solely under the Uniform Traffic Control Law.

In contrast, the Ordinance allows for a traffic control infraction review officer, who although sharing the qualifications of the type of officer referenced in section 316.640(5)(a), is instead appointed by the City pursuant to the Ordinance and for the distinct purposes of viewing recorded images and issuing corresponding citations in accordance with the Ordinance. Essentially, the Ordinance supplements law enforcement personnel in the enforcement of red light infractions, by issuing a notice of violation under the City’s Code of Ordinances, deemed a non-criminal, non-moving violation, for which a civil penalty shall be assessed. The Ordinance does not prohibit law enforcement officers from issuing a citation in accordance with the Uniform Traffic Control Law, nor does it “supersede, infringe, curtail or impinge upon state or county laws related to red light signal violations.” Aventura, Fla., City Code, ch. 48, art. 3 § 48-26 (2007). Rather, the Ordinance’s utilization of image capture technologies is meant to serve as an ancillary deterrent to red light infractions. Id.

Furthermore, while section 48-26 allows the City to utilize cameras under the Ordinance, all alleged red light infractions are recorded and reviewed by a Traffic Control Infraction Review Officer, who verifies the accuracy of the recording before issuing a notice of violation. See Aventura, Fla., City Code, ch. 48, art. 3 §§ 48-26, 48-27, 48-29, 48-31. The Ordinance mandates that the Traffic Control Infraction Review Officer review and verify the recorded images prior to the issuance of a notice of violation which parallels the requirement that a traffic infraction enforcement officer under the Uniform Traffic Control Law observe the traffic violation and, does not conflict with the requirements of subsection 316.640(5)(a), Florida Statutes. Accordingly, we find the trial court erred in its determination that section 48-26 allowed the cameras to serve as the sole basis for issuing a notice of violation in direct conflict with section 316.007, Florida Statutes.

Contrary to our dissenting colleague’s assertions, the Ordinance is also not preempted, either expressly or impliedly, by state law. The dissent points to the language of sections 316.002 and 316.007 as being demonstrative of state preemption. More specifically, the dissent highlights the language in section 316.002, which makes it “unlawful for a local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of this chapter.” Section 316.007 provides:

The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized. However, this section shall not prevent any local authority from enacting an ordinance when such enactment is necessary to vest jurisdiction of violation of this chapter in the local court.

§ 316.007, Fla. Stat. (emphasis added).

In order “[t]o find a subject matter expressly preempted to the state, the express preemption language must be a specific statement; express preemption cannot be implied or inferred.” Hillsborough Cnty. v. Fla. Restaurant Ass’n, 603 So.2d 587, 590 (Fla. 2d DCA 1992) (citing Bd. of Trs. v. Dulje, 453 So.2d 177 (Fla. 2d DCA 1984)). Neither the language in section 316.002 nor section 316.007 demonstrates express preemption by the state. Determining implied preemption requires that the “legislative scheme must be so pervasive that it completely occupies the field, thereby requiring a finding that an ordinance which attempts to intrude upon that field is null and void.” Id. at 591 (citing Tribune Co. v. Cannella, 458 So.2d 1075, 1077 (Fla.1984)); (see also Phantom of Clearwater, Inc. v. Pinellas Cnty., 894 So.2d 1011, 1019) (Fla. 2d DCA 2005) (“[Cjourts imply preemption only when ‘the legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong public policy reasons exist for finding such an area to be preempted by the Legislature.’ ”) (quoting Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826, 831 (Fla. 1st DCA 1996)). Chapter 316 cannot be classified as being “so pervasive that it completely occupies the field.” On the contrary, section 316.008 specifies that no provision of chapter 316 prevents local authorities, within the reasonable exercise of their police power from “[rjegulating, restricting, or monitoring traffic by security devices.” § 316.008(l)(w), Fla. Stat. This is precisely what the City has done. The City, via image capture technologies, monitors intersections it has determined to be of particular concern for traffic accidents, and regulates and restricts red light infractions at those intersections through the issuance of its notices of violation. Doing so is well within the City’s exercise of its broad home rule power and falls squarely within the specific authority carved out in section 316.008(l)(w) by the Florida legislature.

Moreover, a complete examination of the exceptions carved ' out under section 316.008 demonstrates that local authorities, such as the City, in accordance with their home rule powers are not prevented from

(h) Regulating the operation of bicycles.
(i) Regulating or prohibiting the turning of vehicles or specified types of vehicles.
(r) Regulating pedestrian crossings at unmarked crosswalks.
(s) Regulating persons upon skates, coasters, and other toy vehicles.

§ 316.008(l)(h)-(i), (r)-(s). A local authority can accomplish these regulations through duly enacted ordinances such as the one at issue. Section 316.008 allows the local authorities to use their home rule powers to effectuate certain restrictions and regulations but does not specify the means or the schemes for implementing such restrictions or regulations. Through the Ordinance, the City has simply developed a procedure for carrying out its power to regulate, restrict or monitor traffic.

The dissent also states that when a notice of violation is contested, “a quasi-judicial adjudication on the merits is made by a procedure established by the City in violation of article V of the Florida Constitution and chapters 316 and 318 of the Florida Statutes.” It is undisputed that the City has broad home rule powers as set forth in section 166.021, Florida Statutes and Article VIII, section 2(b) of the Florida Constitution. Consistent with these broad powers, the City’s Code provides for the appointment of Special Masters and further provides that a person served with a notice of a violation of the City’s Code may request an administrative hearing for purposes of appeal. See Aven-tura, Fla., City Code, ch. 2, art. V §§ 2-334, 2-335, 2-341. The City is not creating a new “court” to address red light infractions under its Code, but is instead simply utilizing an already existing mechanism, consistent with its home rule powers, to resolve issues arising from notices of code violations. The Ordinance specifies that

Notices of infractions issued pursuant to this article shall be addressed using the [Cjity’s own Special Masters pursuant to Article V, Chapter 2 of the City Code and not through uniform traffic citations or county courts. This shall not bar the use of uniform traffic citations and the country courts when city police personnel decide not to rely on this article as the enforcement mechanism for a specific violation.

Aventura, Fla., City Code, ch. 48, art. 3 § 48-26 (2007). Contrary to the dissent’s assertion, even though the matter is initially appealed before a Special Master, “[a]n aggrieved party, including the City, may appeal a final order of a Special Master to the circuit court.” Aventura, Fla., City Code, ch. 2, art. V § 2-345. Florida courts routinely address cases involving appeals to the circuit court from the decisions of special masters or hearing officers as to local government code violations, and, in doing so, recognize the use of such administrative mechanisms for the resolution of code violations. See Hardin v. Monroe Cnty., 64 So.3d 707, 709-10 (Fla. 3d DCA 2011); City of Palm Bay v. Palm Bay Greens, LLC, 969 So.2d 1187 (Fla. 5th DCA 2007); Miami-Dade Cnty. v. Brown, 814 So.2d 518 (Fla. 3d DCA 2002). We find no distinction between the administrative resolution mechanisms in such cases and in the City utilizing a Special Master, under the facts of this case, to resolve initial disputes of notices of violation. We, therefore, find no conflict between state law and the procedure for contesting notices of violation set forth in the Ordinance.

We also note the Florida Legislature’s recent enactment of the “Mark Wandall Traffic Safety Act” (the “Act”) within the Uniform Traffic Control Law. Laws of Fla., ch. 2010-80, §§ 6 & 7 (2010). The Act implements a statewide red light signal enforcement scheme regulating the use of any traffic infraction detector on state, county, and local municipal roads. The plain language makes clear the Legislature is aware of municipal programs like the Ordinance, and in turn, has created a statutory scheme for statewide regulation which in no way invalidates such existing programs. Importantly, the Act does not invalidate existing municipal traffic monitoring systems, such as red light cameras, but now expressly regulates any such programs and thus, now expressly preempts municipal regulation under the Uniform Traffic Control Law to conform to adopted specifications of the Department of Transportation. Id.

Based upon the foregoing, we find the trial court erred in determining section 48-26 of the Ordinance invalid and unenforceable and, accordingly, we reverse.

Reversed and remanded.

SCHWARTZ, Senior Judge, concurs.

ROTHENBERG, J.

(dissenting).

The trial court concluded that section 48-26 of the City of Aventura’s Code of Ordinances, the photo enforcement red light violation ordinance, is preempted by and in conflict with Florida law, and is, therefore, invalid. Because I agree with the trial court, I respectfully dissent from the majority opinion concluding otherwise.

Due to the inconsistency of penalties imposed by the municipal courts and the inconsistency of traffic laws in munieipalities around the state, article V, section 20(d)(4) of the Florida Constitution was enacted to abolish all of the municipal courts, and the Florida Legislature created chapter 316 to provide a uniform statewide traffic control system. Prior to the adoption of article V, there were sixteen different courts in Florida, which the chairman of the House Judiciary Committee characterized as “a hodgepodge of different courts which vary from county to county.” Amends, to the Fla. R. of Appellate Procedure, 696 So.2d 1103, 1111 n. 9 (Fla.1996) (Anstead, J., specially concurring). The chairman further explained that the passage of article V would consolidate the sixteen different courts into “four uniform levels of courts: supreme court, district court of appeal, circuit court and county court.”

Article V, section 1 was enacted to vest the judicial power “in a supreme court, district courts of appeal, circuit courts and county courts.” Further, article V, section 1, specifies that “[n]o other courts may be established by the state, any political subdivision or municipality.” (emphasis added).

Chapter 316, Florida’s Uniform Traffic Control Law, took effect on “January 1, 1972 throughout the state and in all municipalities of the state.” Ch. 71-135, § 6, at 552, Laws of Fla. The Legislature’s intent in adopting the Florida Uniform Traffic Control Law was “to make uniform traffic laws to apply throughout the state and its several counties and uniform traffic ordinances to apply in all municipalities.” § 316.002, Fla. Stat. (2008).

Section 316.002 also makes it “unlawful for any local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of this chapter.” Additionally, section 316.007, Florida Statutes (2008), specifically provides:

The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized ....

Despite the proscriptions of sections 316.002 and 316.007, the City of Aventura (“the City”) enacted section 48-26 to enforce and punish red light violations, a matter already covered by chapter 316, without express authorization by the Legislature, and in a manner that is in direct conflict with chapter 316 and Florida jurisprudence. Further, when a violation is contested, a quasi-judicial adjudication on the merits is made by a procedure established by the City, in violation of article V of the Florida Constitution and chapters 316 and 318, Florida Statutes (2008).

THE CITY’S HOME RULE POWER

The City, as a Florida municipality, indisputably is granted broad home rule and police powers. Article VIII, section 2(b) of the Florida Constitution provides: “Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law .... ” (emphasis added). That power, however, is not without limitation. A municipality may not enact legislation concerning a subject expressly preempted by state or county law or Florida’s Constitution, or which is in conflict or inconsistent with general law. For example, section 166.021(3)(c), Florida Statutes (2008), states:

The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:
(c) Any subject expressly preempted to the state or county government by the constitution or by general law[.]

The issue in this appeal is, therefore, whether section 48-26, the City’s unmanned photo enforcement red light ordinance, is expressly preempted by or is in conflict with Florida law. It is both.

THE CITY’S ORDINANCE IS EXPRESSLY PREEMPTED BY STATE LAW

Contrary to the majority’s finding that “Neither the language in section 316.002 nor section 316.007 demonstrates express preemption by the state,” the Florida Legislature has expressly preempted to the state the area of traffic control and enforcement except in certain limited circumstances. Section 316.002 of the Florida Uniform Traffic Control Law specifies:

It is the legislative intent in the adoption of this chapter to make uniform traffic laws to apply throughout the state and its several counties and uniform traffic ordinances to apply in all municipalities.... It is unlawful for any local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of this chapter.

(Emphasis added).

In recognition of its stated purpose, section 316.007 of the Florida Uniform Traffic Control Law provides: “The provisions of this chapter shall be applicable and uniform throughout this State and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized.... ” (Emphasis added). Thus, pursuant to its stated purpose of providing for uniform traffic control and enforcement of traffic laws throughout the state, the Legislature expressly preempted the enactment and enforcement of any ordinance on a matter covered by chapter 316 unless expressly authorized, and further limited local governmental home rule and police powers by precluding enforcement of any local ordinance that conflicts with the provisions of chapter 316.

Sections 316.002 and 316.008 identify precisely under what conditions chapter 316 expressly authorizes municipalities to regulate and control traffic within their jurisdictions. Section 316.002 provides, in part:

The Legislature recognizes that there are conditions which require municipalities to pass certain other traffic ordinances in regulation of municipal traffic that are not required to regulate the movement of traffic outside of such municipalities. Section 316.008 enumerates the area within which municipalities may control certain traffic movement or parking in their respective jurisdictions. This section shall be supplemental to the other laws or ordinances of this chapter and not in conflict therewith. It is unlawful for any local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of this chapter.

(Emphasis added).

The City and the majority rely on subsection (l)(w) of section 316.008 in arguing that chapter 316 expressly grants the City the authority to enact an ordinance to enforce and punish violations of section 316.075, Florida Statutes (2008). Florida’s traffic light statute, subsection (l)(w), provides:

(1) The provisions of this chapter shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from:
(w) Regulating, restricting, or monitoring traffic by security devices or personnel on public streets and highways, whether by public or private parties and providing for the construction and maintenance of such streets and highways.

§ 316.008(l)(w), Fla. Stat. (2008).

The City and the majority’s reliance on section 316.008(l)(w) as the statute’s express grant of authority is, however, misplaced. The City’s unmanned cameras placed at various intersections do not regulate nor restrict traffic, and Masone does not allege that the use of cameras to monitor traffic is preempted by or in conflict with Florida law. What Masone correctly argues is that section 316.008(l)(w) does not expressly grant municipalities the authority to: (1) enforce by ordinance, violations of traffic infractions, including red light violations, already being enforced under Florida’s uniform traffic laws; (2) punish alleged violators on an adjudication on the merits in a “court” unauthorized by the Florida Constitution or state statute; (3) create a different standard of proof and liability for red light violations than that which has been approved by the Legislature; and (4) establish penalties not authorized by chapters 316 or 318.

As will be addressed in greater detail in the following section titled “THE CITY’S ORDINANCE CONFLICTS WITH STATE LAW,” section 316.008(l)(w) does not grant municipalities the authority to enforce the state’s uniform traffic laws by a totally separate, very different, unapproved method, and the method of enforcement established by the City is in direct conflict with Florida law.

Additionally, section 316.008(l)(w) must be read in pari materia with sections 316.002, 316.075, and 318.18, Florida Statutes (2008). Section 316.002 specifies the legislative intent for uniform statewide traffic laws. Section 316.007 prohibits municipalities from enacting or enforcing any ordinance on any matter covered by chapter 316. Section 316.075(4) provides that a violation of section 316.075, the traffic light statute, is a noncriminal traffic infraction, punishable pursuant to chapter 318 as a moving violation when the infraction results from the operation of a vehicle. Section 318.18(3)(a) provides for the specific penalties that may be imposed for all moving violations not requiring a mandatory appearance, which would include a red light violation.

When section 316.008(l)(w) is read in pari materia with sections 316.002, 316.007, 316.075, and 318.18, it is clear that the enforcement and punishment of red light violations are matters already covered by chapters 316 and 318, and therefore, specifically preempted by chapters 316 and 318. Thus, the City’s ordinance, section 48-26, is in violation of section 166.021(3)(c) which provides that municipalities may not legislate on any subject expressly preempted by state law.

THE CITY’S ORDINANCE CONFLICTS WITH STATE LAW

Contrary to the majority’s finding, the City’s red light violation ordinance is in direct conflict with article V, section 1 of the Florida Constitution, and chapters 316 and 318 of the Florida Statutes. Thus, pursuant to the clear mandate of section 316.002, which makes “[i]t unlawful for any local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of this chapter,” the ordinance is an invalid exercise of the City’s home rule and police powers.

As previously stated in this dissent, article V, section 20(d)(4) of the Florida Constitution abolished all of the municipal courts. Further, article V, section 1 vests the judicial power in this state in a supreme court, district courts, circuit courts, and county courts, and specifically provides that “[n]o other courts may be established by the state, any political subdivision or municipality,” and further provides that “[t]he legislature may establish by general law a civil traffic hearing officer system for the purpose of hearing civil traffic infractions.” Art. V; § 1, Fla. Const, (emphasis added). Despite article V’s clear language, the City’s red light violation ordinance provides for hearings before Special Masters appointed by the City to hear civil traffic infractions committed in violation of the City’s ordinance, section 48^46. § 48-26, Aventura Fla., City Code (“Notices of infractions issued pursuant to this article shall be addressed using the city’s own Special Masters ... and not through uniform traffic citations or county courts.... ”). These hearings are not conducted in a court of law established by the Florida Constitution, and findings of guilt are made by Special Masters, not judicial officers or hearing officers established by the Legislature. The City’s red light violation ordinance therefore conflicts with Florida’s Constitution.

The City’s red light violation ordinance also conflicts with state statutes. Section 316.007 states that “no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized.” The following is a non-exclusive list of matters covered by chapters 316 and 318 which are covered by the City’s ordinance, not authorized by section 316.008, and which are in conflict with chapters 316 and 318:

Expressly Preempted By:
(1) Section 316.075 provides for specific punishment or penalties for traffic light infractions. Punishment for those who commit a traffic light infraction is, therefore, “a matter covered by this chapter” and thus expressly preempted by state law.
(2) Section 316.655 provides that all traffic infractions be punished under the provisions of chapter 318, and section 318.18 identifies the specific punishment for a red light infraction. Thus the penalties which may be imposed for a red light infraction is “a matter covered by this chapter” and expressly preempted by state law.
(3) Section 318.14(a) identifies the burden of proof that must be applied to the enforcement and punishment of all traffic infractions, including red light infractions. Thus, the legal standards in determining guilt for a red light infraction, is “a matter covered by this chapter” and therefore expressly preempted by state law.
(4) Chapter 318 also establishes the procedure that must be followed; the rights of the accused; and the qualifications of the individual hearing the matter. Thus, the procedure, rights, and qualifications are “matters covered by this chapter”
and therefore expressly preempted by state law.
In Conflict With:
(1) Whereas section 316.075 punishes drivers who commit traffic light infractions, the City’s ordinance punishes the owner of the vehicle which is -observed committing a red light traffic infraction unless the owner submits an affidavit stating that at the time the infraction was being committed, his/her vehicle was being driven without his/her consent. The affidavit must include the identity of the person who had care, custody or control of the vehicle, if known, or include a police report if the vehicle was stolen.
(2) Whereas section 316.640(5)(a) requires the traffic enforcement officer to personally observe the commission of the traffic infraction, the City’s ordinance only requires that a traffic enforcement officer review the recorded images taken by a camera installed by the City at the subject intersection.
(3) Whereas section 316.655 provides that all traffic infractions be punished under the provisions of chapter 318, and section 318.18 provides for a $60 fine for a red light infraction, the City’s ordinance imposes a fine of $125 for the first violation, $250 for a second violation, and $500 for each subsequent violation.
(4) Whereas a traffic infraction, including red light infractions must be proven beyond a reasonable doubt, see § 318.14(6), there is no such requirement under the City’s ordinance.
(5) Whereas the accused violator under Florida’s uniform traffic infraction system has the absolute right to a judicial determination (as opposed to a hearing officer), see § 318.32(3) (providing that “[u]pon request of the defendant contained in a Notice of Appearance or a written plea, the case shall be assigned to a county court judge regularly assigned to hear traffic matters”), under the City’s ordinance, red light infractions are heard only by Special Masters appointed by the City.
(6) Whereas civil infraction hearing officers have been authorized by section 318.30, and they are authorized to accept pleas and determine guilt, see § 318.32, unless the accused requests that the matter be heard by a judge, the hearing officer must be a member in good standing of The Florida Bar, have completed a forty-hour training course approved by the Florida Supreme Court, and be subject to The Florida Bar Code of Professional Responsibility, the City’s ordinance only provides for the appointment of Special Masters, who are not required to meet any of the requirements under chapter 318.

Thus, contrary to the majority’s conclusion that “there is no provision in the Uniform Traffic Control Law that expressly preempts or conflicts with the Ordinance,” there are numerous examples of both express preemption and of conflicts between the City’s ordinance and Florida’s Uniform Traffic Control Law.

CONCLUSION

The City is essentially utilizing the state’s uniform traffic control devices (traffic lights), approved and regulated by the state for enforcement of the state’s uniform traffic control laws, to punish violators through the City’s own enforcement program and to pocket the revenues it collects for its own benefit. This is exactly the sort of inconsistent application of traffic laws and traffic penalties the people and legislature of this state sought to preclude by abolishing all of the municipal courts and enacting a uniform statewide traffic control system.

While the Legislature granted municipalities the authority to regulate, restrict, or monitor traffic within their jurisdictions, the Legislature did not expressly grant municipalities the authority to enforce the same traffic infractions identified and already regulated in chapter 316 through their own “system of justice.” If that were the case, there would be no uniformity-only confusion. I would, therefore, affirm the trial court’s order concluding that section 48-26 of the City’s Code is preempted by and in conflict with Florida law, and affirm the trial court’s order.

      . Masone argues that he filed a declaratory action because he had no adequate remedy at law and the sole defensive option provided under the Ordinance is a hearing before a special master, who does not have authority to make pronouncements regarding the validity of municipal ordinances under state law.

      . The Ordinance specifically states: "This section shall not supersede, infringe, curtail or impinge upon state or county laws related to red light signal violations or conflict with such laws."

      . More specifically, "[t]he City's Chief of Police shall designate a Traffic Control Infraction Review Officer, who shall be a police officer of the City or who shall meet the qualifications set forth in section 316.640(5)(A), or any other relevant statute.” Aventura, Fla., City Code, ch. 48, art. 3 § 48-31(B).

      . For example, section 316.07456, Florida Statutes, provides that any traffic infraction detector
      [ajcquired by purchase, lease, or other arrangement entered into by a county or municipality on or before July 1, 2011, or equipment used to enforce an ordinance enacted by a county or municipality on or before July 1, 2011, is not required to need the specifications established by the Department of Transportation until July 1, 2011.
      Laws of Fla., ch. 2010-80, § 7 (2010).

      . Although the City has since amended the Ordinance to comply with the language of the Act, the amendment of the Ordinance does not affect our decision and our holding is limited to those cases involving notices of violation issued prior to the amendment of the Ordinance.


author: WELLS, Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. William SWINDOLL, Appellee.
    No. 3D10-1609.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 2011.

      Cooney Trybus Kwavnick Peets and Warren B. Kwavnick, Ft.Lauderdale, for appellant.
    Kimberly L. Boldt, Miami; Hoffman & Hoffman and John D. Hoffman, Hollywood, for appellee.
    Before WELLS, C.J., and EMAS, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

State Farm Mutual Automobile Insurance Company appeals from a final judgment in William Swindoll’s favor on his uninsured motorist (UM) benefits claim. Because Swindoll was permitted to make the payment of personal injury protection (PIP) benefits and the standard for the payment of such benefits a feature of the trial below, we reverse and remand for a new trial.

On May 14, 2006, Swindoll was involved in an automobile accident, allegedly injuring his neck. Following the accident, he sought accident-related treatment from a chiropractor and from his primary care physician, submitting his medical bills for his treatment to State Farm, his insurer. State Farm thereafter paid $10,000 in PIP and an additional $5000 in MedPay benefits to Swindoll. It refused, however, to pay further sums under the UM portion of his policy, claiming that the medical treatment for which Swindoll sought payment did not stem from injuries incurred in the automobile accident.

In Swindoll’s ensuing action to recover UM benefits, State Farm moved in limine to preclude Swindoll from adducing testimony that payment of PIP benefits rested on a determination that the medical services for which these benefits had been paid were “reasonable, necessary, or connected to the accident.” State Farm also argued that no testimony was appropriate regarding payment of MedPay benefits because the trial court, not the jury, was required to reduce any damage award by the amount of these benefits. While the trial court initially agreed, ruling that only testimony that these benefits had been paid would be permitted, at trial, the court below allowed Swindoll’s counsel to “walk” a State Farm claims adjuster through the instant policy and the interaction between PIP, MedPay and UM coverages provided therein. With respect to PIP benefits, Swindoll’s counsel was allowed to repeatedly elicit testimony from State Farm’s claims adjuster that PIP benefits were payable for those medical services that were reasonable, necessary and related to the accident involved. Having established this fact, Swindoll’s counsel then suggested that UM benefits were payable upon exhaustion of PIP and MedPay benefits. Finally, Swindoll’s lawyer was allowed to question the adjuster about every bill submitted for payment, as well as each payment made, to Swindoll by State Farm under the policy’s PIP and MedPay provisions.

The jury ultimately found that the accident at issue was a legal cause of Swin-doll’s injury but that he suffered no permanent injury. Swindoll was awarded damages for past medical expenses in the amount of $23,505, which following reduction for payment of PIP and MedPay benefits, was reduced to a total of $8505. State Farm appeals from this judgment.

1. Evidence of payment of PIP benefits to Swindoll

The Florida Supreme Court has held that in cases where a jury is the trier of fact “when the plaintiff introduces evidence of damages that would be covered by PIP benefits ... evidence of PIP benefits [must be] introduced as well ... ‘to prevent a plaintiff from obtaining a double recovery.’ ” Caruso v. Baumle, 880 So.2d 540, 545 (Fla.2004) (quoting McKenna v. Carlson, 771 So.2d 555, 558 (Fla. 5th DCA 2000)); see also § 627.736(3), Fla. Stat. (2009). As our sister court in USAA Casualty Insurance Co. v. Shelton, 932 So.2d 605 (Fla. 2d DCA 2006), correctly held, this mandate does not make evidence regarding the standard for payment of, or an insurer’s payment of, PIP benefits relevant when determining the propriety of payment of UM benefits:

No majority opinion in Florida has addressed the issue of whether evidence of a carrier’s payment of PIP benefits is admissible as part of the plaintiffs evidence that medical damages sought in a UM suit are reasonable, necessary, or connected with the accident. Several cases, however, have discussed the interaction of these two different and independent coverages in an automobile insurance policy. In Nationwide Mutual Fire Insurance Co. v. Race, 508 So.2d 1276, 1278 (Fla. 3d DCA 1987), approved on other grounds, 542 So.2d 347 (Fla.1989), the Third District rejected Race’s argument that payment of PIP benefits collaterally estopped the carrier from denying UM benefits. Similarly, the Florida Supreme Court concluded that an insured’s fraudulent conduct in connection with his claim for PIP benefits did not bar him from seeking UM benefits. Flores v. Allstate Ins. Co., 819 So.2d 740, 751 (Fla.2002). We discern from these cases that actions taken by either party with regard to one coverage, i.e., PIP, do not bind that party with respect to other coverages under an automobile policy, i.e., UM.
Thus, a carrier’s payment of PIP benefits is not an admission that its insured’s claims for UM benefits are reasonable, necessary, and connected to the accident. But the question remains whether it might be admissible evidence on the issue. See, e.g., Flores v. Allstate Ins. Co., 833 So.2d 172, 174 (Fla. 2d DCA 2002) (sending the case back to the circuit court for a new a trial after remand from the Florida Supreme Court because the district court could not determine whether evidence about Flores’s fraud in his PIP claim might be admissible for some limited purpose in his suit for UM benefits). Because of the unique policy considerations underlying PIP coverage, we hold that evidence of an insurer’s payment of PIP benefits is not relevant, and therefore is not admissible, to prove the propriety of claimed medical damages in a UM action.

Id. at 606-07 (footnotes omitted).

In this case, Swindoll was allowed, over continuing objection, to introduce a substantial amount of testimony regarding the standard applied to payment of PIP benefits and the actual payment of PIP benefits by State Farm. This testimony could only have been intended to convince the jury that State Farm’s payment of PIP benefits constituted an admission that . Swindoll was entitled to recover UM benefits because State Farm had already determined that the services for which payment was sought were reasonable, necessary and related to the accident at issue.

Based on our review of the record, we conclude that this wholly unnecessary and irrelevant testimony was so prejudicial that it destroyed the jury’s impartiality. For this reason alone a new trial is warranted.

2. Evidence of payment of MedPay benefits to Swindoll

We also note that on remand no testimony need be adduced regarding State Farm’s payment of MedPay benefits to Swindoll. As the Florida Supreme Court concluded in Allstate Insurance Co. v. Rudnick, 761 So.2d 289, 291 (Fla.2000), MedPay benefits “are not the equivalent of PIP benefits for purposes of section 627.736(3),” but are instead “a collateral source to which the general collateral source statute [section 768.76(1) of the Florida Statutes] is applicable.” Thus, the trial court, rather than the jury, is to offset a UM damage award by the amount of paid MedPay benefits. This makes testimony regarding MedPay benefits irrelevant. Id. at 292-93; see also Caruso, 880 So.2d at 544 (stating that, “under section 768.76(1), the court reduces the jury award by the amount of collateral source benefits”). Consequently, we see no reason for any testimony on this issue on remand.

Accordingly, the final judgment entered below is reversed with this matter remanded for a new trial.

      . Section 627.736(3) provides, in relevant part:
      An injured party who is entitled to bring suit under the provisions of ss. 627.730-627.7405, or his or her legal representative, shall have no right to recover any damages for which personal injury protection benefits are paid or payable. The plaintiff may prove all of his or her special damages notwithstanding this limitation, but if special damages are introduced in evidence, the trier of facts, whether judge or jury, shall not award damages for personal injury protection benefits paid or payable. In all cases in which a jury is required to fix damages, the court shall instruct the jury that the plaintiff shall not recover such special damages for personal injury protection benefits paid or payable.

      . Here, the Supreme Court’s mandate in Caruso could easily have been dispatched either by stipulation (since the parties do not dispute that either PIP and MedPay benefits were paid or the amount of those payments) or by a question or two as to whether any benefits had already been paid by State Farm and the amount of same.

      . In light of our ruling herein, we see no need to address State Farm's argument regarding the trial court’s ruling with respect to the introduction of Swindoll's medical records. We note, however, that in light of the parties’ stipulation as to the authenticity of these documents, there appears to be no basis for excluding them simply because some of the contents are not clearly legible.


author: RAMIREZ, J.

text:
    Elizabeth CUKIERMAN, Appellant, v. BANKATLANTIC, Appellee.
    No. 3D11-647.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Rehearing Denied March 1, 2012.

      John H. Faro, Bonita Springs, for appellant.
    William C. Davell and Christopher D. Barber, Fort Lauderdale, for appellee.
    Before RAMIREZ, CORTIÑAS, and LAGOA, JJ.
   RAMIREZ, J.

Elizabeth Cukierman appeals from an order denying her motion to set aside a judicial sale and vacate a final summary judgment of foreclosure. Because we find that appellant had no standing to challenge the judicial sale and foreclosure judgment, we affirm.

E.L.D. Enterprises, LLC, executed and delivered a promissory note to BankAtlantic in the principal sum of $196,000. The note was secured by a simultaneously executed mortgage encumbering a commercial warehouse owned by E.L.D. Eleazar and Elizabeth Cukierman, E.L.D.’s principals, were guarantors for E.L.D.’s note to Ban-kAtlantic. E.L.D. defaulted on the note, and BankAtlantic sued to foreclose the mortgage. The foreclosure action included both Mr. and Mrs. Cukierman as defendants because of their guaranties. Mr. and Mrs. Cukierman allegedly were served with process at E.L.D.’s corporate address, and an attorney filed an answer to the complaint on behalf of all defendants. The trial court later entered a final summary judgment of foreclosure in favor of BankAtlantic in the amount of $158,769.24. Subsequently, the property was sold at a judicial sale to a third party for $172,000.

Two days after the judicial sale, Mrs. Cukierman moved the court to set aside the sale and vacate the foreclosure judgment. Mrs. Cukierman contended that she was never served with process and was unaware of the foreclosure action and judicial sale, and thus, the judicial sale without notice to her improperly extinguished her right of redemption. In support of her motion, Mrs. Cukierman filed affidavits from her husband and the attorney who answered the complaint, both of which averred that they did not communicate with Mrs. Cukierman regarding the foreclosure action. In response, counsel for BankAtlantic argued that Mrs. Cukierman had no standing to challenge the foreclosure action and judicial sale because, as a guarantor, she had no right of redemption. BankAtlantic contends that, because the indebtedness was satisfied from the sale of the mortgage collateral and no judgment was entered against Mrs. Cukierman personally, any lack of notice to Mrs. Cukier-man is irrelevant. We agree with BankAt-lantic.

A person who guarantees a promissory note does not acquire any interest in the mortgaged property. In Florida, a mortgage creates a special lien against the collateral property, see § 697.02, Fla. Stat. (2001); Hemphill v. Nelson, 95 Fla. 498, 116 So. 498 (1928), which, upon the mortgagor’s default, the mortgagee has the right to foreclose, having the collateral property sold to pay the mortgagor’s debt. See Georgia Cas. Co. v. O’Donnell, 109 Fla. 290, 147 So. 267, 268 (1933) (“The method of foreclosure in this state is to have the mortgaged property sold under an order of the court and the proceeds applied in payment of the debt. The primary purpose of the suit is to subject the mortgaged property to the payment of the debt.”); Gonzalez v. Chase Home Fin. LLC, 37 So.3d 955, 957 (Fla. 3d DCA 2010) (quoting Brown v. Atlanta Nat’l Bldg. & Loan Ass’n, 46 Fla. 492, 35 So. 403, 404 (1903)) (“[T]he proper scope of a foreclosure suit is merely to enforce the mortgage lien against the title or interest of the mortgagor.... ”); Morris v. Osteen, 948 So.2d 821, 825 ((Fla. 5th DCA 2007) (quoting Bankers Trust Co. v. Edwards, 849 So.2d 1160, 1162 (Fla. 1st DCA 2003)) (“Upon obtaining a judgment of foreclosure, the mortgagee is ‘entitled to have the property sold and the proceeds applied against the foreclosure judgment.’ ”). Only the mortgaged property owner or the holder of subordinate interests in the property have the right to redeem the property prior to sale. § 45.0315, Fla. Stat. (2009); Marina Funding Grp., Inc. v. Peninsula Prop. Holdings, Inc., 950 So.2d 428, 430 (Fla. 4th DCA 2007).

Conversely, a guaranty of a mortgage note is simply a promise to answer for the debt should the mortgagor fail to pay. See West Flagler Assocs., Ltd. v. Dep’t of Revenue, 633 So.2d 555 (Fla. 3d DCA 1994) (holding that note guaranty was not subject to intangible personal property tax in light of secondary nature of liability which arises only upon default by note maker); New Holland, Inc. v. Trunk, 579 So.2d 215, 216-17 (Fla. 5th DCA 1991) (“A guaranty is a promise to pay some debt (or to perform some obligation) of another on the default of the person primarily liable for payment or performance.”); see generally Black’s. Law Dictionary at 634 (defining guaranty as a “promise to answer for the payment of some debt, or the performance of .some duty, in case of the failure to another who is liable in the first instance”). Additionally, a guarantor of a mortgage note who has no interest in the mortgaged property, although a proper party, is not a necessary party to an action to foreclose the mortgage. See § 46.041, Fla. Stat. (2009); Prevatt v. Fed. Land Bank of Columbia, 129 Fla. 464, 176 So. 494 (1937). Generally, guarantors are included in foreclosure actions to facilitate enforcement of the guaranty if the sale of the collateral is insufficient to satisfy the debt. See L.A.D. Prop. Ventures, Inc. v. First Bank, 19 So.3d 1126, 1127 (Fla. 2d DCA 2009).

Accordingly, when the mortgagor’s indebtedness is satisfied from the proceeds of the judicial sale of the collateral, the guarantor has no further role in the proceedings. In Photomagic Industries, Inc. v. Broward Bank, 526 So.2d 136 (Fla. 3d DCA 1988), this Court determined that guarantors had no right of subrogation when the fair market value of the collateral exceeded the debt and thus their exposure. Under these circumstances, the Court concluded that, although the statutes allowed for joinder of guarantors, a guarantor is not allowed “to control the direction of the litigation or plaintiffs rights by tendering money where the debt is going to be satisfied from another source.” Id.

Here, Mrs. Cukierman simply obligated herself to pay E.L.D.’s debt if: (1) E.L.D. failed to pay, and (2) the proceeds from a sale of the collateral, E.L.D.’s property, were insufficient to satisfy the debt. When E.L.D. failed to pay, BankAtlantic had the right to decide from which source to obtain satisfaction of the debt. BankAt-lantic proceeded against the collateral property through a judicial sale. The proceeds of the sale were sufficient to satisfy the debt. Therefore, Mrs. Cukierman was not called upon to perform under the guaranty. Moreover, because the guaranty did not grant Mrs. Cukierman any interest in the collateral property, she had no right to redeem the property by paying for E.L.D.’s debt prior to the sale. Although she was a party to the foreclosure action, the' trial court correctly ordered a judicial sale without Mrs. Cukierman’s participation: Subsequently, the foreclosure judgment was satisfied from the proceeds of the sale, again without recourse to the guaranty. Thus, notice to Mrs. Cukier-man was irrelevant because she had no standing to challenge the foreclosure judgment and judicial sale.

For these reasons, we affirm the judgment below.

Affirmed.


author: RAMIREZ, J. SHEPHERD, J.,

text:
    Laura DEMCHAK and Michael Demchak, Appellants, v. Elaine DAVIA and John Michael Piranio, Appellees.
    No. 3D10-366.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2012.
    Rehearing Denied March 1, 2012.

      Nancy Little Hoffmann, Fort Lauder-dale, for appellants.
    Wayne LaRue Smith, Key West, for ap-pellees.
    Before RAMIREZ, SHEPHERD, and SALTER, JJ.
   RAMIREZ, J.

Laura and Michael Demchak appeal the trial court’s final judgment for fraudulent misrepresentation and breach of contract after a jury verdict, and the denial of their motion for directed verdict as to the fraudulent inducement claim. Because we conclude that there was no evidence to support part of the award, we reverse in part, but otherwise affirm the denial of the motions.

This appeal arises out of a dispute between two parties who purchased property in Key West, with the intent to renovate it, and “flip” it for sale at a profit. After Hurricane Wilma, the real estate market took a downturn, the project ran out of money, and the house remained unsold. Elaine Davia and her husband, John Michael Piranio, brought suit against Laura and Michael Demchak seeking money damages. The lawsuit ultimately proceeded to trial on counts II (fraud in the inducement) and III (breach of contract) against the Demchaks.

The facts developed at trial were that, in May of 2004, the Piranios entered into an oral agreement with the Demchaks to purchase and resell the property located at 1327 White Street, Key West. Viewing the evidence in the light most favorable to the non-moving party, see Posner v. Walker, 930 So.2d 659, 665 (Fla. 3d DCA 2006), the Piranios were supposed to invest $450,000, and the Demchaks $1 million in the project. In consideration for the investment of $450,000, the Demchaks signed a promissory note to Davia in that amount, which was to be repaid from the sale proceeds of the property. Accordingly, Davia transferred $450,000. The Piranios were to be installed as officers of the corporation 1327 White Street, Inc. and receive 31% ownership of stock based on the parties’ respective investment into the startup capital of the corporation. On November 8, 2004, the corporation took title to the property.

Instead of investing the agreed-upon sum, the Demchaks borrowed $1 million from TIB Bank using the corporate property as collateral. The Piranios knew nothing of this and would not have entered into an agreement had they known this fact. Additionally, the Demchaks presented themselves to TIB Bank as if they were the only purchasers in the subject property-

Davia liquidated all of the equity in her home to provide her portion of the investment. The Demchaks used their $450,000 for the down payment on the $1 million loan and represented to the bank that the $450,000 was their own. Also unbeknownst to the Piranios, the Demchaks borrowed another $213,000 against the White Street property and deposited $35,000 of the $213,000 into their own personal accounts. On June 30, 2005, the Demchaks placed another $75,000 in the corporate account as a result of another loan.

After Hurricane Wilma, although the house sustained no damages, the bank advised the parties that the property had gone down in value. Because the Demc-haks could not continue to pay two mortgages, they sold their own home and moved into the 1327 White Street home. The Demchaks arranged for periodic work to be done on the house, but when the receipts were presented to the Piranios, the Piranios claimed they were “bogus” and refused to spend any more money. The parties agreed to list the house for $2.55 million. The Piranios then filed this lawsuit. The house did not sell and, at the time of the trial, the house had no value beyond the balance owed on the TIB mortgage. The jury awarded the plaintiffs $450,000 for both counts and $75,000 for breach of contract. The trial court entered final judgment in favor of the Piran-ios: $660,846.58 for fraudulent inducement and $110,097.95 for breach of contract, both of which included prejudgment interest. The Demchaks moved for directed verdict on count II (fraud in the inducement). The trial court denied their motion.

The standard of review on appeal of the trial court’s ruling on a motion for directed verdict is de novo. Health Options, Inc. v. Palmetto Pathology Servs., P.A., 983 So.2d 608, 613 (Fla. 3d DCA 2008). “A party moving for a directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn from such evidence favorable to the non-moving party.” Wald v. Grainger, 64 So.3d 1201, 1205 (Fla.2011); Williamson v. Superior Ins. Co., 746 So.2d 483, 485 (Fla. 2d DCA 1999). A directed verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the movant’s case as a matter of law and there is no evidence to rebut it. State Farm Mut. Auto. Ins. Co. v. Orr, 660 So.2d 1061, 1062 (Fla. 4th DCA 1995).

Applying these standards, we conclude that there was ample evidence to support the jury’s verdict on the $450,000 for either count. There is no evidence, however, to justify the jury award of $75,000. The only evidence regarding this sum was that the Demchaks had agreed to contribute an additional $75,000 to address the shortfall of funds needed to complete the project. If the Demchaks had done that, perhaps the property could have been sold and the plaintiff could have recovered their investment. The failure to make the additional contribution may have made the project more likely to fail, but it did not increase the damage suffered by the Pi-ranios.

We thus affirm the award of $660,846.58 for fraudulent inducement, but reverse the award of $110,097.95 for breach of contract.

Affirmed in part; reversed in part.

SALTER, J., concurs.

SHEPHERD, J.,

dissenting.

I would reverse the entire judgment and order the case be dismissed as premature. The house had not been sold at the time of trial. By their complaint, Davia and Pira-nio elected to affirm the contract. The measure of damages on a fraudulent inducement claim is either the “benefit of the bargain” rule, which awards as damages the difference between the actual value of the property and its value had the alleged facts regarding it been true, or the “out-of-pocket” rule, which awards as damages the difference between the purchase price and the real or actual value of the property. Martin v. Brown, 566 So.2d 890, 891-92 (Fla. 4th DCA 1990). In actions for breach of contract, the goal is to award a sum which is equivalent to the performance of the bargain and to place the plaintiff in the position he would be in had the contract been fulfilled. Ashland Oil, Inc. v. Pickard, 269 So.2d 714, 723 (Fla. 3d DCA 1972). Damages for breach of contract are to be measured from the date of the breach. CIMA Capital Part ners, LLC v. PH Cellular, Inc., 69 So.3d 293, 294 (Fla. 3d DCA 2010). The jury awarded Davia and Piranio rescission damages, relief based upon a cause of - action and remedy not sought by Davia and Pira-nio.

The jury rather clearly agreed the Demchaks breached the terms of their agreement with Davia and Piranio. However, the extent of their loss cannot be known until the house is sold, or perhaps title transferred through a foreclosure (or deed in lieu), if that be the case. Until one of those occurrences, there are no provable damages. See Schimpf v. Reger, 691 So.2d 579, 579 (Fla. 2d DCA 1997) (stating damages cannot be based on speculation or guesswork but rather must have some reasonable basis in fact); George Hunt, Inc. v. Dorsey Young Constr., Inc., 385 So.2d 732, 733 (Fla. 4th DCA 1980) (“[Ejvidence as to the amount of damages cannot be based on speculation or conjecture, but must be proven with certainty.”).

I would reverse the judgments on appeal and dismiss the case without prejudice.


author: PER CURIAM.

text:
    Angelo KYRELIS, Appellant, v. ONEWEST BANK, FSB (Substituted Party for Former Plaintiff IndyMac Federal Bank, FSB, Successor in Interest to IndyMac Bank, FSB) and Dome Enterprises, Inc., Appellees.
    No. 3D11-1730.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    Angelo Kyrelis, in proper person.
    Akerman Senterfitt, and Katherine E. Giddings, Tallahassee, Nancy M. Wallace, Tallahassee, and William P. Heller, Fort Lauderdale, for appellee OneWest Bank, FSB.
    Robinson & Associates, P.A., and Raymond L. Robinson, for appellee Dome Enterprises, Inc.
    Before CORTIÑAS, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Upon consideration of the parties’ briefs, the record, and applicable law, the Court summarily affirms the final judgment of foreclosure pursuant to Florida Rule of Appellate Procedure 9.315(a). The record demonstrates that during the non-jury trial, OneWest Bank, FSB, established that it was holder of the note, and introduced into evidence the original note and mortgage dated July 9, 2007, and Kyrelis’ loan payment history, which reflects no payment since March 2008.

Affirmed.


text:
    Bernard LUCAS a/k/a Bernard R. Lucas, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2954.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.

      Bernard Lucas a/k/a Bernard R. Lucas, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011), and cases cited therein.


text:
    Thomas JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3225.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    Thomas Johnson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011), and cases cited therein.


text:
    Fitzroy HAMILTON, a/k/a Randall Powell, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3314.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    Fitzroy Hamilton a/k/a Randall Powell, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011), and cases cited therein.


text:
    The SORO COMPANY INTERNATIONAL, INC., Petitioner, v. Gregory T. JONES, Respondent.
    No. 3D11-1129.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    Rehearing Denied March 7, 2012.
    Jerry D. Haynes, Fort Lauderdale, for petitioner.
    Ruben E. Dorta, Hialeah, for respondent.
    Before WELLS, C.J., and FERNANDEZ, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

The Soro Company International Inc. appeals an order of the appellate division of the circuit court affirming a Final Judgment for Removal of a Tenant. We treat this appeal as a petition for writ of certio-rari, see Fla. R.App. P. 9.030(b)(2)(B), and deny the petition because there is no departure from the essential requirements of the law. See Nicaragua Trader Corp. v. Alejo Fla. Props., LLC, 19 So.3d 395, 396 (Fla. 3d DCA 2009) (“On second-tier cer-tiorari review, this Court must determine whether the circuit court, acting in its appellate capacity, afforded procedural due process and followed the essential requirements of law.”).

Certiorari denied.


author: CORTINAS, J.

text:
    James BENDROSS, W.C. Dillard, Edwin Henderson, Lorenzo McDowell and Sidney White, Appellants, v. Rev. Phillip F. READON and Eugene Rice, Appellees.
    No. 3D11-1526.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2012.

      Marva L. Wiley, Hialeah, for appellants.
    Gary Yeldell, Jacksonville, Attorney for Reverend Phillip Readon; J.R. Callahan, Attorney for Eugene Rice, for appellees.
    Before CORTINAS, LAGOA, and EMAS, JJ.
   CORTINAS, J.

Bible Missionary Baptist Church of Miami, Inc. (the “Corporation”) was founded and incorporated as a not for profit organization under Florida Statutes chapter 617 (1973) by Reverend Cleo Albury, Jr., who served as pastor of the church and president of the Corporation from 1973 until 1999. He was replaced as pastor by Reverend Phillip F. Readon, though Rev. Al-bury retained his position as president until his death in 2009. In early February, 2010, Eugene Rice, a member of the board of directors of the Corporation, filed the Corporation’s 2010 annual report without notice to the remaining directors. The report removed four members of the board: W.C. Dillard, Edwin Henderson, Lorenzo McDowell, and Sidney White (collectively, the “Appellants”). The report additionally introduced three new directors, and appointed Rev. Readon, who had not previously been on the board, president and registered agent of the Corporation.

Once Appellants discovered what Rev. Readon and Mr. Rice (collectively, the “Appellees”) had done, protracted negotiations ensued with the hopes of resolving the dispute without resorting to litigation. When that failed, Appellants filed a complaint against Appellees alleging breach of contract, breach of fiduciary duty and fraud. In May of 2011, the trial court granted the motion to dismiss the action with prejudice filed by Appellees on the grounds that “[t]he Ecclesiastical Abstention Doctrine bars this Court from deciding the instant dispute because doing so would necessarily and excessively entangle this Court in doctrinal and/or theological issues.” We reverse.

The ecclesiastical abstention doctrine emerges from the First Amendment protections afforded to religious institutions. The Supreme Court of Florida has recognized that “the First Amendment prevents courts from resolving internal church disputes that would require adjudication of questions of religious doctrine.” Malicki v. Doe, 814 So.2d 347, 355 (Fla.2002) (internal citations omitted). In applying the doctrine, the trial court noted that “[u]n-der the ecclesiastical abstention doctrine, civil courts are prohibited from interfering with internal church disputes in order to avoid excessive government entanglement with religion, in accordance with the First Amendment.” (quoting State v. Young, 974 So.2d 601, 612-13 (Fla. 1st DCA 2008)). Appellees point in their brief to a recent First District decision which found that “how the Church should govern itself’ is “an essentially religious matter.” Rosenberger v. Jamison, 72 So.3d 199, 204 (Fla. 1st DCA 2011). This Court has previously considered the doctrine and found that “[cjourts may not consider employment disputes between a religious organization and its clergy because such matters necessarily involve questions of internal church discipline, faith, and organization that are governed by ecclesiastical rule, custom, and law.” Archdiocese of Miami, Inc. v. Miñagorri, 954 So.2d 640, 640-42 (Fla. 3d DCA 2007) (internal citations omitted).

We find that the ecclesiastical abstention doctrine does not bar this suit. Plaintiffs are not categorically prohibited from ever seeking redress from the courts solely because a religious organization is somehow involved in the dispute. “[WJhen a church-related dispute can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving religious controversy, the civil courts may adjudicate the dispute.” Se. Conf. Ass’n of Seventh-Day Adventists, Inc. v. Dennis, 862 So.2d 842, 844 (Fla. 4th DCA 2003) (citing Jones v. Wolf, 443 U.S. 595, 602-604, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979)). Appellants do not allege, in their complaint, that the Bible Baptist Church committed any wrongdoing, and do not challenge the institution’s employment practices or policies. Nothing in the record indicates that Appellants have sought judicial intervention concerning any aspect of church governance. Instead, Appellants allege that Appellees, acting without authority, attempted to remove specific board members from the organization in derogation of the requirements of section 617.0808 (Fla.Stat.2010).

Religious organizations, like any other not for profit organization, are governed by the requirements of chapter 617. See § 617.0301, Fla. Stat. (2010). Unless provisions in the by-laws of a corporation expressly adopt alternative requirements to those discussed in the statute, section 617.0808 establishes the procedures to be followed in removing board members for all not for profit corporations: “[A] director may be removed from office pursuant to procedures provided in the articles of incorporation or the bylaws, which shall provide the following, and if they do not do so, shall be deemed to include the following ...” § 617.0808(1), Fla. Stat. (2010) (emphasis added). It is undisputed that the by-laws of the church do not adopt any procedures for removing board members. Because the statute unambiguously establishes procedures of uniform law, the instant dispute “can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving a religious controversy.” Se. Conference, 862 So.2d at 844. Thus, the allegations in the complaint may be evaluated without recourse to any policy, practice, or doctrine of the church. The court is not asked to interpret religious doctrine or to evaluate church policies. The allegations at the heart of the complaint — that Appellees improperly attempted to remove members of the Board of Trustees — are entirely controlled by neutral application of section 617.0808.

This is not an instance where the court’s involvement would transgress upon the exclusive authority granted to churches under the First Amendment “to decide for themselves, free from state interference, matters of church government.” Malicki, 814 So.2d at 356 (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952)). The church in the instant case did not decide this aspect of church governance for itself; the by-laws of the church do not address the composition of the board, the removal of board members, or any similar aspect of corporate management. Because the church in the instant case had no by-laws governing the removal of board members, chapter 617 dictates the required procedures. This Court is not faced with the inquiry prohibited in Rosenberger concerning “whether the Church adhered to its bylaws.” Rosenberger, 72 So.3d at 204. There were no bylaws with which the church may or may not have complied. See also Se. Conference, 862 So.2d at 844 (“[W]here religious organizations establish rules for their internal discipline and governance ... ‘the Constitution requires that civil courts accept their decisions as binding upon them.’ ”) (internal citations omitted).

The situation before this Court is far closer to that faced by the Florida Supreme Court in Epperson v. Myers, 58 So.2d 150 (Fla.1952). In that case, a set of trustees for a church challenged their removal by a rival group. The Supreme Court, while finding that matters of church governance are ordinarily deemed ecclesiastical and covered by the doctrine, allowed for the exception: “[W]hen there is a showing of fraud, collusion, or arbitrary conduct on the part of church authorities, the courts will interfere to protect the rights of those imposed on.” Epperson, 58 So.2d at 152. Epperson further held that “[w]hen a ‘faction’ of the church arrogates authority to itself, disrupts the organization and sets at naught well-defined rules of church order, there is no course left for those who desire their rights settled through orderly processes but resort to the courts.” Id. Significantly, the First District noted in Rosenberger that “[o]ur decision here does not conflict with the [S]upreme [C]ourt’s decision in Epperson v. Myers." Rosenberger, 72 So.3d at 205, n. 4.

Because, at this stage of the proceedings, it appears that the case may be resolved by applying neutral principles of law without inquiry into religious doctrine and without requiring the court to interpret the policies or practices of the Bible Baptist Church, the abstention doctrine does not bar this case.

Reversed and remanded.

      . Article V of the church’s by-laws permit the Pastor “to temporarily remove from office any uncooperative officer pending action by the church.” Though the by-laws make use of the term "remove,” it is clear from a plain reading of the text that the temporary nature of die removal and the reference to "pending action by the church” limits the Pastor's authority to the mere suspension of officers. Procedures for the full removal of directors, by the church or by any authorized agent of the church, are not mentioned in the by-laws. As the Plaintiffs’ complaint alleges that they were removed from office, not merely suspended, adjudication of the complaint would therefore not require review of the church’s by-laws.


text:
    MERCURY INSURANCE COMPANY OF FLORIDA, Petitioner, v. RPM MEDICAL CENTER, INC. (a/a/o Hermer J. Garofalo), Respondent.
    No. 3D11-2466.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2012.

      Scott W. Dutton, Tampa, Ivy R. Ginsberg, Aventura, and Gregory J. Blackburn, Tampa, for petitioner.
    Marlene S. Reiss, Miami, for respondent.
    Before CORTIÑAS, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Upon review of the petition and the response, this Court denies the petition for writ of certiorari in part and grants the petition in part. The petition is denied as to the appellate division’s decision reversing the summary judgment entered in the county court. However, we grant the petition and quash the award of appellate attorney’s fees to respondent. Respondent properly concedes that the award of appellate attorney’s fees, pursuant to section 627.428(1), Florida Statutes, should have been conditioned upon respondent ultimately prevailing in the underlying proceeding. See Guadagno v. United Auto. Ins. Co., 88 So.3d 246 (Fla. 3d DCA 2011); Ramirez v. United Auto. Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011); Comprehensive Health Ctr., LLC v. United Auto. Ins. Co., — So.3d -, 2011 WL 2848667 (Fla. 3d DCA 2011); see also Tench v. Am. Reliance Ins. Co., 671 So.2d 801 (Fla. 3d DCA 1996) (on clarification); Allstate Ins. Co. v. De La Fe, 647 So.2d 965 (Fla. 3d DCA 1994). See generally Petty v. Fla. Ins. Guaranty Ass’n, 80 So.3d 313 (Fla.2012) (“[Section 627.428(1) provides that an insured will be entitled to an attorney’s fee award when coverage is disputed and the insured prevails.”). Accordingly, the award of appellate attorney’s fees is quashed and the cause is remanded to the circuit court for entry of a conditional award of appellate attorney’s fees to respondent.

Petition granted in part and denied in part.


text:
    Liborio VARGAS, Appellant, v. WASHINGTON MUTUAL, Appellee.
    No. 3D10-2859.
    District Court of Appeal of Florida, Third District.
    Feb. 29, 2012.
    Raul E. Espinoza, for appellant.
    Gray Robinson, Thomas H. Loffredo and Jeffrey T. Kuntz, Fort Lauderdale, for appellee.
    Before WELLS, C.J., and RAMIREZ and LAGOA, JJ.
   ON CONFESSION OF ERROR

WELLS, Chief Judge.

On Appellee, Washington Mutual’s commendable confession of error, we reverse the order on appeal and remand to the court below for further proceedings in this matter.

Reversed and remanded.


text:
    Johnny SOTO, Petitioner, v. The STATE of Florida, et al., Respondents.
    No. 3D12-566.
    District Court of Appeal of Florida, Third District.
    March 7, 2012.
    Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for respondents.
    Before, WELLS, C.J., and RAMIREZ and LAGOA, JJ.
   PER CURIAM.

Petitioner, Johnny Soto, seeks a writ of habeas corpus because his pretrial release was revoked, even though there was no change in circumstances or additional evidence added to the record subsequent to his pretrial release. We grant the petition for the writ and quash the order of the trial court.

Soto was arrested and charged with various felonies that included life felonies. The initial charge was filed in juvenile court, but later transferred to felony court. Soto was granted pretrial release after arraignment, and appeared at subsequent soundings in the trial court. At the fifth sounding, the prosecutor moved to have the trial court hold Soto with no bond, based on the life felony charges. The trial court agreed. Soto subsequently filed the instant petition.

It is undisputed the offenses charged here are life felonies for which the trial court may refuse to provide pretrial release. However, in this case, the trial court granted pretrial release. While the trial court has discretion to refuse bail upon the necessary showing by the State, see State v. Arthur, 390 So.2d 717, 720 (Fla.1980), once it grants bail, it cannot revoke the decision if circumstances have not changed or additional evidence emerged since the bond was originally set. See Creech v. Ryan, 972 So.2d 1021, 1022 (Fla. 3d DCA 2008); see also Burton v. Felton, 625 So.2d 1334, 1335 (Fla. 3d DCA 1993).

In this case, the State did not meet its burden, as the record does not contain proof that change in circumstances or additional evidence existed at the time of the trial court’s revocation. Accordingly, the petition must be granted.

Petition granted.