author: ORFINGER, C.J.

text:
    Christopher G. TUOMEY, Appellant, v. Debra B. TUOMEY, Appellee.
    No. 5D10-2334.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2011.
    Melissa A. Tartaglia, of Tartaglia Law, P.A., Port Richey, for Appellant.
    Alyssa A. Ruge, Trinity, for Appellee.
   ORFINGER, C.J.

Christopher G. Tuomey, the former husband, appeals the final judgment of dissolution of marriage to Debra B. Tuomey, the former wife. Although the former husband raises a number of challenges to the court’s equitable distribution and parenting plan, we write to address only three matters that merit further consideration.

The former husband argues that the trial court failed to incorporate a stipulation made by the parties into the final judgment. At trial, the parties agreed that the former wife’s brother would not be left alone with, or drive, their children. The court accepted this stipulation, but inadvertently omitted it from the final judgment. On remand, the trial court shall include this provision in its final judgment. See Johnson v. Johnson, 663 So.2d 663, 665 (Fla. 2d DCA 1995) (holding trial court obligated to strictly adhere to parties’ stipulation, absent fraud, misrepresentation, mistake or public policy).

The former husband also challenges the trial court’s equitable distribution scheme. He asserts that the trial court erred in failing to award him any credit for paying all of the post-dissolution carrying costs of the parties’ marital residence. The final judgment requires that the parties sell the marital home, but permits the former husband to reside there, pending its sale, provided that he continues to be responsible for the mortgage, taxes, insurance and maintenance. However, the court did not allow any credit to the former husband for these expenses, finding that they were offset by the rental value of the property’s use. This was error, as the trial court failed to make any findings as to the fair rental value of the marital residence. See Adkins v. Adkins, 595 So.2d 1032, 1035 (Fla. 1st DCA 1992) (remanding where trial court awarded half of mortgage payments as reimbursement for rental value of marital home and holding that “[t]he fair rental value of the property may or may not be directly related to the amount of the mortgage payments”). Therefore, on remand, the trial court must make express findings regarding the reasonable rental value and credit the former husband’s payments in excess of the fair rental value, if any, in accordance with section 61.077, Florida Statutes (2010).

Finally, the former husband contends that the trial court erred by treating his unvested stock options as a marital asset and by arbitrarily valuing them. A careful reading of the record reveals that the trial court only distributed the former husband’s 1,081 vested stock options. Because the final judgment did not address the unvested stock options, we need not be concerned with his valuation argument. See The Fla. Bar v. Centurion, 801 So.2d 858, 861 (Fla.2000) (affirming where argument misstates appealed finding).

Accordingly, we remand for further proceedings consistent with this opinion. In all other respects, the final judgment is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

PALMER and JACOBUS, JJ., concur.

      . Although not set forth in the final judgment, the trial court expressed this reasoning during the trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jason Matthew WINKEL, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 5D11-1876.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2011.
    William M. Winkel, West Palm Beach, in proper person.
    Stephen D. Hurm, General, Counsel, and Richard M. Coin, Assistant General, Counsel, Orlando, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of an order of the circuit court, sitting in its appellate capacity, that dismissed his appeal of the suspension of his driver’s license for refusing to submit to a breath test. The circuit court dismissed Petitioner’s appeal due to his untimely attempt to comply with a court order to show cause. Because Petitioner’s omission did not justify dismissal, the circuit court departed from the essential requirements of the law. Krebs v. State, 588 So.2d 38 (Fla. 5th DCA 1991).

Accordingly, we quash the order dismissing the appeal.

PETITION GRANTED.

TORPY, EVANDER and COHEN, JJ., concur.


author: KELLY, Judge.

text:
    CITY OF TAMPA, Appellant, v. Ramiro COMPANIONI, Jr., Appellee.
    No. 2D08-921.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 2011.

      Richard M. Zabak of GrayRobinson, P.A., Tampa; and William J. Terry of Terry & Dato, P.A., Tampa, for Appellant.
    Dominic 0. Fariello, Tampa, for Appel-lee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

KELLY, Judge.

In Companioni v. City of Tampa, 51 So.3d 452, 456 (Fla.2010), the supreme court quashed our decision in City of Tampa v. Companioni, 26 So.3d 598 (Fla. 2d DCA 2009), and held that a party seeking a new trial based on the cumulative misconduct of opposing counsel must not only object to each instance of misconduct, but, if the objection is sustained, must also move for a mistrial in order to preserve the issue for the purposes of a motion for a new trial. Absent preservation in this manner, the conduct is subject to a fundamental error analysis under Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000). Companioni, 51 So.3d at 456. The supreme court remanded the case to this court “for consideration of whether the trial court abused its discretion in denying a new trial based on the analysis set forth in Murphy ” and directed us to consider any remaining issues raised by the City if we concluded that the trial court did not abuse its discretion in denying the City’s motion for a new trial. Id.

When a party seeks a new trial based on the cumulative misconduct of opposing counsel and the party has not preserved the issue by objecting and moving for a mistrial, that party must demonstrate to the trial court that the conduct being challenged was “improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Murphy, 766 So.2d at 1031. This court then reviews the trial court’s grant or denial of the motion under an abuse of discretion standard of review. Id.; see also Companioni, 51 So.3d at 456.

In the order denying the City’s motion for a new trial, the trial judge stated that there was sufficient misconduct by Mr. Companioni’s counsel to warrant a mistrial; however, because opposing counsel did not contemporaneously move for a mistrial, a fundamental error analysis must be applied. The judge concluded that he could not “say that the conduct of Plaintiffs trial counsel was such that it damaged ‘the fairness of the trial’ to the extent that ‘it would undermine the public’s confidence in the judicial system.’ ” The trial judge also noted that “while the cumulative conduct of Plaintiffs counsel was so pervasive and prejudicial that the City of Tampa’s right to a fair trial was impaired, it did not rise to the level that the public confidence in the judicial system would be undermined since there was adequate evidence to support the verdict.” Absent a finding that the conduct so damaged the fairness of the trial that the public’s interest in the justice system requires a new trial, a party is not entitled to a new trial under Murphy. See Murphy, 766 So.2d at 1031. After carefully reviewing the record, we cannot conclude that the trial court abused its discretion when it determined the City had not satisfied that criteria and thus was not entitled to a new trial based on the misconduct of opposing counsel.

We also find no abuse of discretion in the trial court’s other decisions challenged by the City. The City first contends that it is entitled to a new trial because the jury’s verdict was against the manifest weight of the evidence. Specifically, the City argues that the evidence was insufficient to establish that the City was negligent. In a detailed order citing to the pertinent portions of the trial transcript, the trial court found that there was “sufficient — albeit conflicting — evidence presented at trial to support the jury’s finding regarding negligence.” We find no abuse of discretion in the trial court’s assessment of the evidence.

The City also sought remittitur, arguing that the amount of the verdict was excessive. In rejecting this argument, the trial court stated that “[tjestimony at trial indicated that the Plaintiff ... suffered extensive and permanent medical injuries as well as a loss of earning capacity. The Court cannot say that [the] amount of damages awarded by the jury is excessive or outside the range of what is reasonably supported by the evidence at trial.” The trial court again cited to the pertinent portions of the trial record to support its determination. Again, we find no abuse of discretion. The verdict against the City is indeed substantial; however, the record reflects that Mr. Companioni sustained horrific injuries that, as noted by the trial court, are extensive and permanent. We also note that while the City challenges the award as excessive, at trial it offered no suggestion to the jury as to what would be a proper award for injuries it acknowledged were “serious.” In fact, the City recognized that for the remainder of his life, Mr. Companioni “was going to have problems” because of his disability which caused him “discomfort and pain and suffering.” When it went to deliberate, the jury had only the damage figures suggested by Mr. Companioni’s counsel, and given the nature of the injuries Mr. Companioni sustained, it is not surprising the jury picked a figure at the high end of the range counsel suggested.

Accordingly, we affirm the trial court’s order denying the motion for a new trial and for remittitur.

Affirmed.

SILBERMAN, C.J., and DAVIS, J., Concur.


author: DAMOORGIAN, J.

text:
    MHB CONSTRUCTION SERVICES, L.L.C., a Florida limited liability company, Appellant, v. RM-NA HB WATERWAY SHOPPES, L.L.C., a Florida limited liability company, Appellee.
    Nos. 4D10-3054, 4D11-363.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.

      Michael J. Yates of the Law Offices of Michael J. Yates, P.L., Miami, for appellant.
    Adam P. Handfinger and K Stefan Chin of Peckar & Abramson, P.C., Miami, for appellee.
    Scott D. Rembold and Mark D. Bohm of Bogert & Rembold, P.L., Coral Gables for Amicus Curiae South Florida Associated General Contractors.
   DAMOORGIAN, J.

In its consolidated appeals, MHB Construction Services, L.L.C. appeals: (1) the trial court’s final order dismissing RM-NA HB Waterway Shoppes, L.L.C. (“Landlord”) as a party on a motion to dismiss and (2) the final judgment awarding Landlord attorney’s fees and costs. The issue on appeal is whether MHB could lien Landlord’s fee simple interest when Landlord’s tenant failed to pay MHB for improvements made to the tenant’s leased property. Concluding that the trial court was correct in its analysis that MHB may not lien Landlord’s property, we affirm the trial court’s final order of dismissal and the final judgment awarding attorney’s fees and costs.

Landlord is the owner of a shopping center. Landlord entered into a commercial lease with Rebecca L. Shortt, Inc. (“Tenant”), who operates a daycare center. Two years before the lease’s execution, Landlord recorded a “Notice of Lien Prohibition” in the public records of Bro-ward County in accordance with section 713.10, Florida Statutes (2010). After entering into the lease, Tenant contracted with MHB to make improvements to the leased space. Before the construction began, Landlord executed and recorded a notice of commencement pursuant to section 713.13, Florida Statutes (2010).

Ultimately, MHB filed a foreclosure action against Landlord and Tenant for the balance due on the construction contract. In response to the complaint, Landlord filed a verified motion to strike Count I (foreclosure of lien) as a sham pleading, asserting that the recorded Notice of Lien Prohibition barred MHB from asserting a claim of lien on Landlord’s property. The trial court agreed and entered a final order dismissing the claim against Landlord. This consolidated appeal followed.

MHB argues that by executing and recording a notice of commencement, Landlord identified its “control and financial stake in the construction,” and “Landlord must now be estopped from claiming the lien cannot affect its fee simple property interest since Landlord identified itself as owner in the Notice of Commencement.” We disagree.

We begin our analysis by looking at the purpose behind a notice of commencement. In Sasso Air Conditioning, Inc. v. United Cos. Lending Corp., 742 So.2d 468 (Fla. 4th DCA 1999), Judge Warner, quoting Symons Corp. v. Tartan-Lavers Delray Beach, Inc., 456 So.2d 1254 (Fla. 4th DCA 1984), provided a concise statement of the purpose served by a notice of commencement pursuant to Section 713.13(l)(a), Florida Statutes:

Though the Notice of Commencement was originally required to trigger a commencement date from which to measure time limitations under the Mechanic’s Lien Law, the information contained in the Notice of Commencement provides all the details necessary to complete a Notice to Owner. Indeed, Section 713.13(l)(a), Florida Statutes, requires with Notice of Commencement information including the name and address of the owner and contractor. Thus, the legislature contemplated that the Notice of Commencement would provide the lienor with the current names and addresses of the owner and contractor, so that the lienor could properly mail the Notice to Owner.

Sasso Air Conditioning, Inc., 742 So.2d at 470 (quoting Symons Corp., 456 So.2d at 1259).

Contrary to MHB’s assertion, we do not read section 713.13, Sasso Air Conditioning, Inc., or any other case law provided by MHB to suggest that the execution of a notice of commencement has the effect of giving a contractor the right to lien the property of a lessor who is not a party to the contractor-lessee contract for improvements.

Most significantly in this case, Landlord recorded a notice of lien prohibition in accordance with section 713.10. Section 713.10 provides:

The interest of the lessor shall not be subject to liens for improvements made by a lessee when:
(2) All of the leases entered into by a lessor for the rental of premises on a parcel of land prohibit such liability and a notice which sets forth the following is recorded by the lessor in the public records of the county in which the parcel of land is located:
(a) The name of the lessor.
(b) The legal description of the parcel of land to which the notice applies.
(c) The specific language contained in the various leases prohibiting such liability.
(d) A statement that all leases entered into for premises on the parcel of land contain the language identified in paragraph (c).

§ 713.10(2)(a)-(d), Fla. Stat. (2010). We are bound by the strict interpretation of section 713.10, and to follow MHB’s proposition that section 713.13 abrogates the rights under section 713.10, would ignore the plain meaning of section 713.10. See Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 66-67 (Fla. 4th DCA 2011) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)) (“If a statute is clear and unambiguous, ‘there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ”).

MHB next argues that “when a landlord requires construction or is responsible for construction costs under the terms of the lease” commonly referred to as the pith of the lease, “the claim of lien will also extend to the interest of the landlord.” MHB claims that Landlord’s $10,000 reimbursement towards Tenant’s improvements constituted an unfair scheme to avoid liens, was a way to use Tenant as a strawman, and permitted MHB to lien the property. These arguments are without merit. Although section 713.10 provides that “[w]hen an improvement is made by a lessee in accordance with an agreement between such lessee and her or his lessor, the lien shall extend also to the interest of such lessor,” the statute further provides that the lessor will not be subject to liens for improvements when the lessor complies with the requirements of subsection 2. See § 713.10(2) Fla. Stat. The lease and Notice of Lien Prohibition expressly prohibited claims of lien for improvements made by Tenant from attaching to the property. See A.N. Drew, Inc. v. Frenchy’s World Famous Cajun Cafe, Inc., 517 So.2d 766, 768 (Fla. 1st DCA 1988) (“Where the terms of the lease indicate either the lessee or the lessor contemplated the improvements being made, the lessor’s interest will be subject to mechanics’ liens unless the lessor records the necessary disclaimer.”) (footnote omitted); see also Miracle Ctr. Dev. Corp. v. M.A.D. Constr., Inc., 662 So.2d 1288 (Fla. 3d DCA 1995) (illustrating the level of protection afforded to landlords under Chapter 713).

The lease did not require that improvements be made. See 14TH & Heinberg, LLC v. Henricksen & Co., Inc., 877 So.2d 34, 36 (Fla. 1st DCA 2004) (holding that the landlord’s interest could not be subject to the mechanics’ liens because the lease “did not require that the improvements be made, nor did the improvements constitute the pith of the lease.”). The lease also required Tenant to get written consent from Landlord before Tenant could make improvements. See id. (in reaching its holding that there was no claim of lien against the landlord, the court noted that the tenant needed written consent from the landlord before making improvements). Lastly, Landlord’s $10,000 contribution towards MHB’s construction was less than 10% of the total cost of improvements and was contingent on Tenant receiving a final release from MHB. See Budget Elec. Co. v. Strauss, 417 So.2d 1143, 1145 (Fla. 5th DCA 1982) (holding that the mere fact that the parties to a lease may contemplate the lessee will make improvements to the property is insufficient to subject the lessor’s interests to mechanics’ liens and that the lease must expressly or impliedly require the improvements be made).

MHB was in the best position to understand Landlord’s prohibition against liens and to protect itself by contractually binding Landlord in the event that Tenant defaulted. See Sasso Air Conditioning, Inc., 742 So.2d at 471 (“Not only does our result comport with the statute and its salutary purpose, but the burden is placed on the party who was most able to protect itself from loss.”). Our affirmance of the final order of dismissal renders moot MHB’s argument in connection with the final judgment awarding attorney’s fees and costs in the underlying action.

Affirmed.

GERBER, J., and MARX, KRISTA, Associate Judge, concur.

      . The lease contained three provisions relevant to our decision: 1) "Tenant covenants and agrees that it shall not make any Tenant improvements upon the structure of the Demised Premises during the Lease Term unless such improvements are made subsequent to receiving written consent of the Landlord, which consent may be withheld in the absolute discretion of the Landlord.”; 2) A "lien prohibition clause” for tenant improvements; and 3) A "Landlord’s Work/Construction Agreement,” providing for reimbursement of Tenant's construction costs conditioned on Tenant receiving a final release from MHB.

      . We also note that the Notice of Commencement properly complied with the requirements of section 713.13(l)(a)3., Florida Statutes (2010), by listing Tenant as the owner and that Tenant’s ownership interest was a leasehold interest.

      . MHB never raised to the trial court or on appeal that the Notice of Lien Prohibition was defective.


text:
    Delroy COWAN and Heather D. Cowan, a/k/a Heather Cowan, Appellants, v. The BANK OF NEW YORK MELLON, f/k/a The Bank of New York as Trustee for the Certificateholders CWALT, Inc. Alternative Loan Trust 2006-OC1 Mortgage Pass-Through Certificates, Series 2006-OC1, Appellee.
    No. 4D10-3895.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    Garry W. Johnson and Bruce K. Herman of 511 Law, P.A., Fort Lauderdale, for appellants.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. See Glynn v. First Union Nat’l Bank, 912 So.2d 357, 358 (Fla. 4th DCA 2005) (lack of standing is an affirmative defense that must be raised, failure to raise it results in waiver); Chem. Residential Mortg. v. Rector, 742 So.2d 300, 300 (Fla. 1st DCA 1998) (by failing to respond to complaint and default entered, appellants waived any denial of its allegations of lack of standing of plaintiff); Freemon v. Deutsche Bank Trust Co. Am., 46 So.3d 1202, 1204 (Fla. 4th DCA 2010) (party not entitled to an evidentiary hearing on motion to set aside final judgment for fraud where motion failed to “specify the fraud with particularity and explain why the fraud, if it exists, would entitle the movant to have the judgment set aside.”).

WARNER, LEVINE and CONNER, JJ., concur.


text:
    William James DEMLER, Appellant, v. Andrea Theresa DEMLER, n/k/a Andrea Theresa Patane, Appellee.
    No. 4D10-4207.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    William James Demler, Orlando, pro se.
    Maria J. Patullo of Robin Roshkind, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Affimed. See Kuhnke v. Kuhnke, 556 So.2d 1121 (Fla. 3d DCA 1989).

POLEN, GROSS and CONNER, JJ., concur.


text:
    Adam S. RUSHETSKY, Appellant, v. Valerie J. RUSHETSKY, Appellee.
    No. 4D10-2167.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    Keith A. Fousek of Law Office of Keith A. Fousek, P.A., North Lauderdale, for appellant.
    William L. Gardiner III of Conrad & Scherer, LLP, Fort Lauderdale, for appel-lee.
   PER CURIAM.

The husband appeals a final judgment of dissolution of marriage. The failure to provide a transcript or proper substitute requires affirmance except where there is clear error on the face of the judgment. Matteis v. Matteis, — So.3d —, 2011 WL 4056288 (Fla. 4th DCA 2011); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). The wife concedes error in the $24 a month credit for noncovered medical expenses, as the child support guidelines worksheet also requires the husband to be 41% responsible for any noncovered medical expenses. As such, we reverse and remand for recalculation of child support without this credit. As to the other issues, we find no clear error on the face of the judgment and thus affirm.

Affirmed in part, reversed in part, and remanded with instructions.

TAYLOR, HAZOURI and LEVINE, JJ., concur.


author: CRENSHAW, Judge.

text:
    METRO-DADE INVESTMENTS, CO., and Santa Barbara Landings Property Owner’s Association, Inc., Appellants, v. GRANADA LAKES VILLAS CONDOMINIUM, INC., Velinda Straub, Paolo Ferrari, Michael Orofino, and KW Property Management Consulting, LLC, Appellees.
    No. 2D11-1188.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 2011.
    Denise V Powers of Denise V. Powers, P.A., Coral Gables, for Appellants.
    John S. Penton, Jr. of Cole, Scott & Kissane, P.A., West Palm Beach, for Ap-pellees.
   CRENSHAW, Judge.

Metro-Dade Investments, Co. (Metro-Dade), and Santa Barbara Landings Property Owner’s Association, Inc. (Santa Barbara), appeal a nonfinal order denying the appointment of a receiver. Because the trial court erred as a matter of law by concluding that it did not have the authority to appoint a receiver in this case, we reverse and remand for further proceedings.

I. The Factual and Procedural Background

In February 2009, Metro-Dade and Santa Barbara filed an amended complaint for damages and other relief against Granada Lakes Villas Condominium Association, Inc. (GLVCA), Velinda Straub, Paolo Ferrari, Michael Orofino, and KW Property Management Consulting, LLC (collectively Granada Lakes), based on what they considered to be improper management of Granada Lakes Villas, condominiums located in Collier County, Florida. Metro-Dade was the developer of Granada Lakes Villas and still owns 55 of the 248 condominiums in the complex. Granada Lakes Villas is a subdivision of the larger development of Santa Barbara Landings, which is managed by Santa Barbara.

Metro-Dade, Santa Barbara, and GLVCA initially agreed to have the same property manager oversee all of the condominiums in Granada Lakes Villas and to have the owners of all of the condominiums collectively pay the fees and assessments to GLVCA. But a falling-out among the parties resulted in the condominiums being managed by two separate entities, and Metro-Dade and Santa Barbara alleged that GLVCA failed to pay them the related expenses owed after collecting its condominium fees and assessments. Metro-Dade and Santa Barbara maintained that as a result of GLVCA’s failure to pay, Metro-Dade and Santa Barbara were unable to pay for utilities and maintenance expenses for the common areas of Granada Lakes Villas.

In December 2010, Metro-Dade and Santa Barbara filed an emergency motion to appoint a receiver, arguing that the appointment was necessary to administer the collection of GLVCA’s monthly assessments and to perform an accounting of the moneys owed. The trial court conducted a hearing and appointed a receiver. However, Granada Lakes filed a motion for rehearing, contending that the trial court had no statutory basis to appoint a receiver under sections 617.1432, 718.117, and 718.1124, Florida Statutes (2010). After conducting a rehearing in February 2011, the trial court agreed with Granada Lakes and found that it did not have the authority to appoint a receiver. This appeal follows.

II. The Standard of Review

“The appointment of a receiver rests within the sound discretion of the trial court and, therefore, the trial judge’s decision should not be disturbed unless an abuse of discretion is clearly shown.” Puma Enters. Corp. v. Vitale, 566 So.2d 1343, 1344 (Fla. 3d DCA 1990). But if the trial court was incorrect in its determination that it did not have the authority to appoint a receiver, this decision is an incorrect application of an existing rule of law, not an abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980) (discussing differences between the two standards and holding “the manner of appellate review is altogether different”). “A question of law, as opposed to a question of fact, receives de novo review by this court.” Henderson v. Henderson, 905 So.2d 901, 903 (Fla. 2d DCA 2005).

III. Discussion

“The power to appoint a receiver ... lies in the sound discretion of the chancellor to be granted or withheld according to the facts and circumstances of the particular case.” Ins. Mgmt., Inc. v. McLeod, 194 So.2d 16, 17 (Fla. 3d DCA 1966) (emphasis added); see also Edenfield v. Crisp, 186 So.2d 545, 549 (Fla. 2d DCA 1966) (“The power to appoint a receiver is always one that is inherent in a Court of equity .... ” (emphasis added)). Similar to the argument advanced below, Granada Lakes contends that sections 617.1432, 718.117, and 718.1124 specifically limit when a receiver can be appointed for a nonprofit condominium association like GLVCA. Granada Lakes also argues that the Third District’s decision in All Seasons Condominium Ass’n v. Busca, 8 So.3d 434 (Fla. 3d DCA 2009), which involved an action brought by the owners of condominium units against a condominium association for money damages arising out of the association’s failure to properly maintain and repair common elements, is analogous to this case.

We disagree with Granada Lakes’ assertion that sections 617.1432, 718.117, and 718.1124 restrict the right of a trial court to appoint a receiver in any action concerning a nonprofit corporation or condominium association. If we were to follow Granada Lakes’ argument, then the only time a receiver could ever be appointed would be during the dissolution of a nonprofit corporation, after a natural disaster when members of a condominium’s board of directors are unable or refuse to act, or when a condominium association fails to fill vacancies on its board of directors to constitute a quorum in accordance with its bylaws. See §§ 617.1432(1), 718.117(7)(a), 718.1124(1). We do not construe any of these statutes to restrict a trial court’s broad, equitable authority to appoint a receiver; rather, the statutes merely cite to specific instances when a receiver may be appointed. Similarly, there is no language pertaining to receivers in Florida Rule of Civil Procedure 1.620 that discusses any of the statutory restrictions advanced by Granada Lakes.

Moreover, we do not find All Seasons to be on point. In All Seasons, the Third District summarily held that “there [was] simply no cognizable basis for such an appointment in such a case.” 8 So.3d at 435. The cases the appellate court relied upon in support of its conclusion pertained to a proper appointment of a receiver pursuant to a primary claim or in conjunction with the presence of fraud, self-dealing, or waste of a secured asset. Id. All Seasons does not cite to sections 617.1432, 718.117, and 718.1124 in support of its holding.

Here, the trial court clearly stated that it was denying Metro-Dade and Santa Barbara’s motion because it believed it lacked the statutory authority to do so. Hence, the trial court erred as a matter of law because its right to appoint a receiver in this instance is inherent in a court of equity, not a statutorily created right. We note, however, that on rehearing the trial court did not appear to readdress the underlying basis for the initial appointment of the receiver. Therefore, on remand the trial court may exercise its discretion on whether to appoint a receiver.

Reversed and remanded for further proceedings.

CASANUEVA and MORRIS, JJ„ Concur.


author: STEVENSON, J. GERBER, J.,

text:
    Barbara GRAVES, Gary Kast, Randi Martin and Lillian Thames, Appellants, v. CITY OF POMPANO BEACH, by and through its CITY COMMISSION, a Florida Municipality, and PPI, INC., Appellees.
    No. 4D09-3790.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.

      Andrew J. Baumann, Kenneth G. Spilli-as and James E. Charles of Lewis, Long-man & Walker, P.A., West Palm Beach, for appellants.
    Gordon B. Linn, City Attorney, and Erin Gill Robles, Assistant City Attorney, Pompano Beach, for appellee City of Pompano Beach.
    Daniel L. Wallach, Gary C. Rosen and Alan B. Koslow of Becker & Poliakoff, P.A., Fort Lauderdale, for appellee PPI, Inc.
   On Motion fob Rehearing

STEVENSON, J.

We grant appellants’ motion for rehearing, withdraw our previous opinion issued on April 13, 2011, and substitute the instant decision in its place.

Appellants challenge the dismissal of their complaint for declaratory relief filed against appellees, the City of Pompano Beach and PPI, Inc., to declare a revised plat approval inconsistent with the City’s comprehensive plan. Under section 163.3215(3), Florida Statutes (2009), an aggrieved or adversely affected party may maintain an action for declaratory or in-junctive relief against a local government to challenge a “development order” that is inconsistent with the comprehensive plan. The trial court granted the appellees’ motion to dismiss and concluded that the City’s plat approval was not subject to challenge under section 163.3215(3) because it was not a “development order.” Upon further review and consideration of the development rights consequent to a plat approval under the City Land Development Code, we find that the plat approval in the instant case is a “development order” under the statutory scheme and reverse.

The facts are briefly summarized and taken from the complaint. Appellants are all citizens living near or around Pompano Park Racino. The Resolution approving the plat was a revision to a prior, 2008 plat approval of the Park. The 2008 plat divided the Park into two parcels, A and B. This appeal concerns only parcel A since, according to the complaint, parcel B was ultimately not included in the plat application or approval. The Park, as approved in the 2008 plat, consisted of “an existing 278,381 square foot, 5,256 seat racetrack and grandstand facility known as the Pompano Park Harness Track — a parimutuel wagering facility.” In connection with the racetrack, Parcel A contained 550 horse stalls, 44 dormitory rooms for jockeys, 115,906 square feet of ancillary commercial/retail use and a 46,503-square-foot gambling casino.

Subsequently, the City passed Resolution 2009-120, at issue in this case, which made several changes to the 2008 plat. The Resolution authorized the continued use of the existing racetrack and casino, authorized an expansion and conversion of land uses, and increased the development thresholds of the Park. Specifically, development thresholds were increased to allow 850 horse stalls, 154 dormitory rooms, a 500-room hotel, and a 230,000-square-foot casino building (containing a 55,000-square-foot casino and 175,000 square feet of commercial uses). In total, this approved an 8,497-square-foot expansion for casino use, a 54,094-square-foot expansion of commercial uses, and a new hotel. The Resolution also provided a preliminary approval for compliance with the City’s land development code regarding traffic standards, as well as adequacy of water management, solid waste disposal and recreation facilities.

According to the complaint, the plat approval is inconsistent with the City’s plan because it is a “juxtaposition of intensive commercial and recreational uses over the existing land use on the property, which is designed for less-intensive recreational uses.” The comprehensive plan allegedly “identifies a primary land use for the property consisting of less-intensive recreational uses, and permits some more intense commercial uses to exist to support this primary use.” Appellants maintain that the approval of the revised plat will allow intense commercial uses, rather than recreational uses, to become the dominant use on the property. Further, appellants maintained that the plat approval is inconsistent with the City’s comprehensive plan because it violates various traffic policies and public-facility standards, and threatens surrounding properties and infrastructures. Appellants alleged in their complaint that the plat approval was a development order under section 163.3215 and had to comply with the City’s comprehensive plan. The City and PPI filed a motion to dismiss and maintained that a plat approval was not the equivalent of a development order. The trial court agreed with the City and PPI, and granted the motion to dismiss.

In reviewing dismissal of a complaint seeking relief under section 163.3215, the standard of review is de novo. See Lutz Lake Fern Rd. Neighborhood Grps., Inc. v. Hillsborough Cnty., 779 So.2d 380, 383 (Fla. 2d DCA 2000). All well-pleaded facts and reasonable inferences therefrom must be accepted as true. See Wells v. Wells, 24 So.3d 579, 582 (Fla. 4th DCA 2009). The test is not whether the complaint shows that the plaintiff is likely to succeed in getting a declaration of rights, but whether the plaintiff is entitled to a declaration of rights at all. See id. at 583.

Pursuant to Florida Statutes Chapter 163 governing comprehensive plans, any “development order” issued by a local government must be consistent with that local government’s comprehensive land use plan. § 163.3194(l)(a), Fla. Stat. (2009). The Act is to be “construed broadly to accomplish its stated purposes and objectives .” § 163.3194(4)(b). A development order is defined as “any order granting, denying, or granting with conditions an application for a development permit.” § 163.3164(7), Fla. Stat. (2009). A development permit “includes any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.” § 163.3164(8) (emphasis added). Pursuant to section 163.3164(6), “development” has the meaning given it in section 380.04 of “The Florida Environmental Land and Water Management Act of 1972,” and is defined there as “the carrying out of any building activity ... [or] the making of any material change in the use or appearance of any structure or land.” § 380.04(1), Fla. Stat. (2009). The meaning of “development” in section 380.04(1) is more specifically defined in section 380.04(2)(b) as a “change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units in a structure or on land.” Further, section 380.04(4) provides that “[rjeference to particular operations is not intended to limit the generality of subsection (1).”

The City of Pompano Beach land development code adopts the statutory definition for “development order,” but more specifically defines a “development permit” as “[a]ny building permit, zoning permit, plat approval, site plan approval or rezoning, certification, variance, or other action having the effect of permitting development.” Pompano Beach, Fla., Code Ordinances § 157.01 (emphasis added). A “plat” is defined as:

A map or delineated representation of the subdivision of lands, being a complete exact representation of the subdivision and other information in compliance with the requirement of all applicable sections of this chapter and of any local ordinances....

Pompano Beach, Fla., Code Ordinances § 157.01 (2009).

While the City code cannot expand the statutory definition of development permit, we believe that its specific designation of a plat approval as a development permit is consistent with the plain language of section 163.3164(8) and with the liberal interpretation Chapter 163 must be given. Indeed, the list of development permits contained in section 163.3164(8) was not meant to be exhaustive as it was followed with the language “or any other official action ... having the effect of permitting the development of land.” Since the City’s plat approval “ha[s] the effect of permitting development,” see Pompano Beach, Fla., Code Ordinances § 157.01, it falls squarely within the Florida Statutes definition of a “development permit.” See § 163.3164(8), Fla. Stat. (development permit includes any official action of local government “having the effect of permitting the development of land”).

As pointed out by appellants’ motion for rehearing, the land development code provides that a development order [plat approval] “grants to the applicant ... the right to develop or utilize the premises in accordance with the terms and conditions contained in the development order.” Pompano Beach, Fla., Code Ordinanoes § 157.07(A). Appellees assert that the plat approval cannot be a development order since, under the City’s land use code, approval of a site plan and the issuance of building permits are still needed before any of the items depicted on the plat can be completed. The notion of the inconse-quence of plat approvals in the development process was debunked in City of Coconut Creek v. Broward County Board of County Commissioners, 430 So.2d 959, 968 (Fla. 4th DCA 1983). There, in a case involving a dispute between the county and a municipality over the county’s right to veto the municipalities platting decisions, the court remarked:

[T]he county is vested with the substantive authority to retain veto power over the municipalities platting decisions to insure that development within the county is consistent with the overall scheme set out in the county’s land use plan. To hold otherwise would be to deny the county effective, coordinated control over development within the entire county including the municipalities located therein. Without some overall supervision[,] the municipalities would be free to make development decisions without consideration of their effect on adjacent communities.

Id. at 964 (emphasis added). The court further noted that the municipalities’ “narrow construction” of the purpose of platting requirements as providing little more than a map “was implicitly rejected in Kass v. Lewin, 104 So.2d 572, 579 (Fla.1958),” where the supreme court “acknowledged that the legislature intended the plat act ‘to promote community planning.’ ” 430 So.2d at 963.

In conclusion, section 163.3164 does not suggest that a development order is one which grants development rights only in the advanced stages of the development process or to a shovel-ready project. As appellants maintain, and we agree, the City’s approval of the revised plat grants PPI the right to develop the subject property in accordance with the increased uses or “restrictions” listed in the plat notes. Accordingly, we find that the City’s plat approval, with its attendant development consequences, constitutes a development order subject to challenge under section 163.3215(3). The final order of dismissal is therefore reversed and this cause remanded for further proceedings.

Reversed and remanded.

GROSS, J., concurs.

GERBER, J., dissents with an opinion.

GERBER, J.,

dissenting.

I respectfully dissent. Our original opinion, Graves v. City of Pompano Beach ex rel. City Comm’n, 36 Fla. L. Weekly D778, 2011 WL 1376617 (Fla. 4th DCA Apr. 13, 2011), was based upon applicable statutes. The appellants’ motion for rehearing is based upon inapplicable authorities.

Our original opinion affirmed the trial court’s order dismissing the appellants’ complaint. We concluded that the City’s plat approval is not a “development order” subject to challenge under section 163.3215, Florida Statutes (2009). Id. We based our conclusion upon the plain language definitions of section 163.3164:

A development order is defined as “any order granting, denying, or granting with conditions an application for a development permit.” § 163.3164(7). A development permit includes “any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.” § 163.3164(8).... Resolution 2009-120 only approved a map of the Park, but did not permit PPI to begin building on the land or make any alterations to structures existing on the land. As indicated by the land development code, additional steps must be taken in order for development to begin. See City of Pompano Beach, Fla.Code Ordinances §§ 157.03, .45 (2009) (listing requirements for site plan approval that must be met prior to issuance of building permits). Thus, the plat approval may not be challenged as a development order under section 163.3215.
Accordingly, the trial court’s order dismissing the complaint is affirmed, and appellants will need to wait until later in the process, if the plans continue, to challenge the proposed facilities and uses.

Id. at D779.

The appellants’ motion for rehearing nevertheless argues that the City’s plat approval constitutes a “development order” under section 163.3215. The appellants base their argument not upon the plain language definitions of section 163.3164, but upon two other authorities: (1) our holding in City of Coconut Creek v. Broward County Board of County Commissioners, 430 So.2d 959, 963 (Fla. 4th DCA 1983); and (2) the City’s definition of “development permit.”

The appellants’ reliance on those two authorities is misplaced. First, Coconut Creek is inapplicable. Coconut Creek predates by two years the legislature’s creation of section 163.3125, the statute under which the appellants brought this action. Thus, Coconut Creek can have no bearing upon an interpretation of section 163.3125.

Second, the City’s definition of “development permit” also is inapplicable. Section 163.3215 specifically provides that a “development order” is “as defined in s. 163.3164”:

Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.8164,, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan.

(emphasis added). A “development order,” as defined in section 163.3164, is “any order granting, denying, or granting with conditions an application for a development permit.” § 163.3164(7). A “development permit,” as defined in section 163.3164, is “any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.” § 163.3164(8). A “plat approval” is not included in that definition and, as we noted in our original opinion, the plat approval here, by itself, did not permit the development of land.

The appellants’ motion for rehearing ignores section 163.3215’s use of the phrase “as defined in s. 163.3164.” Instead, the appellants rely on the City’s definitions of “development order” and “development permit.” The City’s definition of “development order” is the same as section 163.3164’s definition. However, the City’s definition of “development permit” contains one key difference from section 163.3164’s definition. The City’s definition includes a “plat approval.” See Pompano Beaoh, Fla., Code Ordinances § 157.01 (“development permit” means “[a]ny building permit, zoning permit, plat approval, site plan approval or rezoning, certification, variance, or other action having the effect of permitting development.”) (emphasis added).

The appellants’ reliance on the City’s definition cannot prevail as a matter of law. Our supreme court “has long held as a general rule that a statewide statute prevails over a conflicting municipal ordinance.” City of Casselberry v. Orange Cnty. Police Benev. Ass’n, 482 So.2d 336, 340 (Fla.1986). “[A] conflict exists when two legislative enactments cannot co-exist.” Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880, 888 (Fla.2010) (citation and internal quotations omitted). Here, the two legislative enactments cannot co-exist. Section 163.3215 creates a cause of action limited to a development order “as defined in section 163.3164.” Adding the City’s definition of “development permit” to section 163.3164’s definition broadens the cause of action beyond that which the legislature intended by its own words.

Based on the foregoing, I stand by our original opinion to affirm the circuit court’s order dismissing the appellants’ complaint. I would deny the appellants’ motion for rehearing.


text:
    Mignon OLIVIER, Appellant, v. INDYMAC FEDERAL BANK, F.S.B., Appellee.
    No. 4D10-3880.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.
    Philippe Symonovicz, Fort Lauderdale, for appellant.
    Angela Lynn Leiner of Douglas C. Zahm, P.A., St. Petersburg, for appellee.
   PER CURIAM.

Affirmed. See Tacher v. Helm Bank, 50 So.3d 1239 (Fla. 4th DCA 2011).

MAY, C.J., WARNER and GROSS, JJ., concur.


text:
    UNITED AUTOMOBILE INSURANCE CO., Appellant, v. HALLANDALE BEACH ORTHOPEDICS, INC., a/a/o Azriah Fulton, Appellee.
    No. 4D10-5143.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.
    Michael J. Neimand, Office of General Counselor, Miami, for appellant.
    Dean A. Mitchell, Ocala, for appellee.
   PER CURIAM.

Affirmed. See Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011).

MAY, C.J., WARNER and GROSS, JJ., concur.