source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    DISCOUNT SLEEP OF OCALA, LLC d/b/a Mattress Warehouse, Individually, and as a Representative of a Class of All Similarly Situated Others, and Dale W. Birch, Individually, etc., Appellants/Cross-Appellees, v. CITY OF OCALA, Florida, Appellee/Cross-Appellant.
    Case No. 5D17-497
    District Court of Appeal of Florida, Fifth District.
    Opinion filed January 5, 2018 Rehearing Denied February 19, 2018
    Derek A. Schroth, James A. Myers and Sasha O. Garcia, of Bowen/Schroth, Eustis, for Appellants/Cross-Appellees.
    George Franjola and Patrick G. Gilligan, of Gilligan, Gooding, Franjola & Batsel, P.A., Ocala, for Appellee/Cross-Appellant.
   ORFINGER, J.

Discount Sleep of Ocala LLC, d/b/a Mattress Warehouse, and Dale W. Birch, individually and as representatives of a putative class of others similarly situated (collectively "Appellants"), appeal from a non-final order denying class certification. We reverse the order denying class certification. On the City of Ocala's ("the City")

cross-appeal, we affirm without further discussion.

FACTS

This case concerns the City's imposition of a fire service user fee charged to customers of its city-owned utility. Since 2006, the City has enacted several ordinances that established, repealed, and later reinstated the fire service user fees. In 2014, Appellants filed a class action lawsuit against the City, challenging the validity of Ordinance 2010-43, which repealed an earlier ordinance and reinstated the previously repealed fire service fees. The trial court dismissed Appellants' original complaint with prejudice based on the statute of limitations. This Court reversed the order of dismissal, concluding that Appellants' complaint was timely filed. See Disc. Sleep of Ocala, LLC v. City of Ocala, 200 So.3d 156, 157 (Fla. 5th DCA 2016).

On remand, Appellants filed a second amended complaint, seeking a declaration that the fire service user fee enacted by the City and collected from them and all other City utility customers as part of the monthly utility bill is invalid, illegal, and unconstitutional. Appellants further asked the court to order the City to refund the fees collected. Appellants also filed a second motion for class certification, which the trial court denied after conducting an evidentiary hearing. The trial court concluded that Appellants lacked standing to represent the putative class members, and that the class could not be certified because Appellants failed to satisfy the commonality, typicality, and adequacy prongs of the class certification test. The trial court further found that Appellants failed to prove that common issues predominated over individual questions and that a class action was the superior means of adjudicating the controversy. As we will explain, we disagree.

ANALYSIS

A. Standing.

The standing of a plaintiff to bring an action is a threshold inquiry that must be made before addressing whether the case is properly maintainable as a class action. Ferreiro v. Phila. Indem. Ins. Co., 928 So.2d 374, 376 (Fla. 3d DCA 2006). "A trial court's decision as to whether a party has satisfied the standing requirement is reviewed de novo." Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 116 (Fla. 2011).

"To meet the ... standing requirement, a plaintiff must have suffered an 'injury in fact' that is 'distinct and palpable'; the injury must be fairly traceable to the challenged action; and the injury must be likely redressable by a favorable decision." Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) ). The putative class representative must establish that a case or controversy exists between him or her and the defendant that will continue throughout the litigation. Id. at 117. A case or controversy exists if a party alleges an actual or legal injury that the relief sought will address. Id. Here, in their second amended complaint, Appellants alleged they and the other putative class members paid the fire service user fees that the City charged and continues to charge. Appellants have alleged an economic injury, fulfilling the actual injury requirement of standing in their claim for declaratory relief and damages against the City. See id. ("In this case, Sosa has suffered an economic injury, fulfilling the actual injury requirement of standing.").

The trial court erred in determining that the class should not be certified because the class could not include members who "paid the fire service user fee but who are no longer required to do so." Here, even if a customer no longer pays the fire service user fee, the customer would still be able to be part of the class, or subclass, if the customer paid the fire service user fee during the relevant time period. Those members suffered the same injury, i.e., their payment of the allegedly invalid fire service user fee; their injury is concrete and particularized; and their injury would be redressed by the requested refund.

B. Rule 1.220(a).

After establishing standing, but before a class may be certified, the trial court must conduct a "rigorous analysis" to determine whether the class representative and putative class members meet the requirements for class certification pursuant to Florida Rule of Civil Procedure 1.220(a). Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 265 (Fla. 5th DCA 2002). These elements are commonly referred to as the numerosity, commonality, typicality, and adequacy of representation elements of class certification. InPhyNet Contracting Servs., Inc. v. Soria, 33 So.3d 766, 771 (Fla. 4th DCA 2010). The party seeking class certification bears the burden of satisfying all the requirements of rule 1.220(a). Campbell, 827 So.2d at 265. We review the trial court's order denying class certification for an abuse of discretion, but examine a trial court's factual findings for competent, substantial evidence, and review conclusions of law de novo. Sosa, 73 So.3d at 102-03, 105. "Although a trial court will generally be required to conduct an evidentiary hearing to determine whether to certify a class, the trial court's proper focus is on whether the requirements of rule 1.220 have been met and not on whether the moving party will prevail on the merits." City of Tampa v. Addison, 979 So.2d 246, 252 (Fla. 2d DCA 2007) ; see Sosa, 73 So.3d at 105 ; Morgan v. Coats, 33 So.3d 59, 63-64 (Fla. 2d DCA 2010).

1. Commonality.

The trial court found that Appellants failed to meet the commonality prong because some class members are no longer subject to the fee. As such, the trial court determined that their claims could not be based on the same legal theory as Appellants' theory.

The primary concern in determining commonality is whether the representative members' claims arise from the same practice or course of conduct that gave rise to the other claims, and whether the claims are based on the same legal theory. Sosa, 73 So.3d at 107. Importantly,

[t]he threshold of the commonality requirement is not high. See Broin v. Philip Morris Cos., Inc., 641 So.2d 888, 890 (Fla. 3d DCA 1994) (citing Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 473 (5th Cir. 1986) ). A mere factual difference between class members does not necessarily preclude satisfaction of the commonality requirement. See Morgan, 33 So.3d at 64 (citing Leszczynski v. Allianz Ins., 176 F.R.D. 659, 671 (S.D. Fla. 1997) ). Individualized damage inquiries will also not preclude class certification. See id. at 65 ; Ouellette v. Wal-Mart Stores, Inc., 888 So.2d 90, 91 (Fla. 1st DCA 2004) ; Broin, 641 So.2d at 891 ("Entitlement to different amounts of damages is not fatal to a class action." (citing Cohen v. Camino Sheridan, Inc., 466 So.2d 1212, 1214 (Fla. 4th DCA 1985) )).

Id. Instead, the purpose of the commonality requirement is to determine "whether there is a need for, and benefit derived from, class treatment." Id. This requirement "is satisfied if the common or general interest of the class members is in the object of the action, the result sought , or the general question implicated in the action." Id.

In this case, Appellants challenge the validity of the fire service user fees that the City charged and continues to charge. They allege that they and the members of the putative class have a right to a refund of the unlawful fees paid to the City pursuant to the City's common course of conduct of uniformly billing and collecting the fire fees on its utility bills. It is immaterial that there are members of the proposed class who are no longer subject to the fee. Not all questions of law or fact raised in the litigation need be common because even a single common question will satisfy the commonality requirement. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 369, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). "The requirement is met if the questions linking the class members are substantially related to the resolution of the litigation even though the individuals are not identically situated." Clausnitzer v. Fed. Exp. Corp., 248 F.R.D. 647, 656 (S.D. Fla. 2008) (quoting Collins v. Int'l Dairy Queen, Inc., 168 F.R.D. 668, 673-74 (M.D. Ga. 1996) ); see also Mohamed v. Am. Motor Co., LLC, 320 F.R.D. 301, 313-14 (S.D. Fla. 2017) (finding commonality requirement was satisfied where case revolved around common course of conduct and involved several overarching questions that were common to almost every member of class). While there may be some individualized damage differences, Appellants presented a common issue of law and fact regarding the City's collection of the fire service user fees on its utility bills, which satisfies the "low hurdle" commonality requirement. See Morgan, 33 So.3d at 64.

2. Typicality.

As to the typicality prong, the trial court determined that the testimony presented at the evidentiary hearing established that ad valorem taxes would likely be increased on real property in the city to make up for loss of revenue if the fire service user fee was declared invalid. The court thus reasoned that if the fire service user fee was refunded, it would "likely be paid in its entirety by the property owning ad valorem taxpayers and not by all of the beneficiaries of the fire service." As a result, the trial court concluded that Appellants' success would be adverse to the interests of the other members of the putative class who pay ad valorem taxes, and thus not typical of the class claims.

In analyzing typicality, the key inquiry is "whether the class representative possesses the same legal interest and has endured the same legal injury as the class members." Sosa, 73 So.3d at 114. "The test for typicality, like the test for commonality, is not demanding and focuses on the general similarity between the named plaintiff[s]' legal and remedial theories and the theories of those whom they purport to represent." Morgan, 33 So.3d at 65 (quoting Basco v. Wal-Mart Stores, Inc., 216 F.Supp.2d 592, 599 (E.D. La. 2002) ). This requirement is satisfied when there is a strong similarity in the legal theories between the class representatives' claims and class members' claims and "when the claims of the class representative and class members are not antagonistic to one another." Sosa, 73 So.3d at 114-15. "Mere factual differences between the class representative's claims and the claims of the class members will not defeat typicality." Id. at 114.

In this case, Appellants' and the putative class members' claims are based on the same legal theory-the alleged invalidity of the ordinance establishing the fire service user fee-that arose from the same course of conduct that caused a similar injury-the City uniformly billing and collecting the fire fees on utility bills that were sent to Appellants and the putative class members. The trial court's conclusion that "ad valorem taxes would likely be increased on developed properties within the City in order to make up for the loss of funding if the fire service user fee was declared invalid" does not preclude a finding of typicality. See Graham v. Pyramid Healthcare Sols., Inc., No. 8:16-CV-1324-T-30AAS, 2017 WL 2799928, at *5 (M.D. Fla. June 28, 2017) ("Even if the fact patterns are unique to each claim, the typicality requirement will be satisfied if the class representative and class members experienced the same unlawful conduct."). Appellants' claims are not "antagonistic" to real property owners in the city. In the event of a judgment in favor of Appellants, the City has options other than an ad valorem tax increase to raise sufficient revenues to cover a refund, if ordered. See Nelson v. Wakulla Cty., 985 So.2d 564, 577 (Fla. 1st DCA 2008) (rejecting in class notice trial court's statement "that this case is, in essence, a suit by taxpayers, as a class, against themselves"); City of Port St. Lucie v. Zlinkoff, 821 So.2d 1130, 1132 (Fla. 4th DCA 2002).

In the end, the claims of the class representatives and putative class members are not antagonistic, and the trial court erred in concluding that this element of rule 1.220(a) had not been established. See Colomar v. Mercy Hosp., Inc., 242 F.R.D. 671, 677 (S.D. Fla. 2007) ("[T]ypicality is often met when, in proving her case, the representative plaintiff establishes the elements needed to prove the class members' case."). The trial court's consideration of the merits during the class certification review must not result in a shift in focus from deciding whether a litigant's claim is suited for class certification. Sosa, 73 So.3d at 106 ; Freedom Life Ins. Co. of Am. v. Wallant, 891 So.2d 1109, 1115 (Fla. 4th DCA 2004). The trial court should not have focused, as it did here, on how the City would address the financial impact of an adverse judgment when it considered whether this claim was suited for class certification. See Roper v. Consurve, Inc., 578 F.2d 1106, 1114 (5th Cir. 1978) (explaining that because considering financial impact of judgment presupposes success on merits and requires trial court to express opinion on harshness of particular remedy prior to trial itself, it ought to be allowed only in extreme cases), aff'd sub nom. Deposit Guar. Nat'l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980).

3. Adequacy of Representation.

Rule 1.220(a) also requires that the class representatives demonstrate they can fairly and adequately protect and represent the interests of each member of the class. This inquiry serves to uncover conflicts of interest between named parties and the class they seek to represent. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). In considering this requirement, the named plaintiffs must demonstrate both that (1) their interests are not antagonistic to those of the rest of the class and (2) class counsel is qualified, experienced, and generally able to adequately conduct the proposed litigation. Sosa, 73 So.3d at 115.

a. Appellants Can Fairly and Adequately Represent the Class.

A "class representative must be part of the class and 'possess the same interest and suffer the same injury' as the class members." Addison, 979 So.2d at 254. Satisfaction of the commonality and typicality requirements provides "strong evidence that [the named plaintiffs] adequately represent the class." Henderson v. Thomas, 289 F.R.D. 506, 511 (M.D. Ala. 2012). Additional proof that the named plaintiffs adequately represent the class exists when the same relief is sought for plaintiffs and all class members. Broin, 641 So.2d at 892. Minor conflicts among class members will not defeat class certification. Valley Drug v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir. 2003). To render representative plaintiffs inadequate, a conflict must be "fundamental" and "go[ ] to the specific issues in controversy." Id. A fundamental conflict exists when a defendant's alleged conduct has benefitted some class members, but harmed other members or when the economic interests and objectives of the named representatives differ significantly from those of other class members. Id.

Relying on Smith Lake Shores Village, LLC, v. Marion County, 7 So.3d 595 (Fla. 5th DCA 2009), the trial court determined that Appellants could not fairly and adequately represent the class because in the event Appellants prevail, the class members who pay ad valorem taxes would fund the judgment and benefit the class members who do not pay ad valorem taxes or no longer reside in the city, thereby, creating an impermissible conflict. However, Smith Lake is distinguishable. There, the plaintiff theorized that a special assessment for fire rescue services was unlawful because "the apportionment methodology" used by the county was "arbitrary" in ways that were disadvantageous to the plaintiff. 7 So.3d at 596. This Court determined that the plaintiff had a conflict with the class members since a judicial determination based on the plaintiff's theory could result in reapportionment, thereby, reducing the plaintiff's assessment to the detriment of the other class members. Id. ("There is a single aggregate assessment that will have to be paid and diminution of the share of any particular category of owner will result in a greater share of assessment for the others in the pool."). In this case, Appellants do not make a similar claim. Appellants are seeking the complete invalidation of the fire service user fees and the same relief for themselves and the other class members. Thus, no conflict exists between Appellants and the class.

While Appellants are ad valorem taxpayers who may not want to see their property taxes increased in the event of a judgment ordering the fees to be refunded, that is not the relevant inquiry for class certification purposes. Instead, the "relevant inquiry is whether the plaintiffs maintain a sufficient interest in, and nexus with, the class so as to ensure vigorous representation." Roper, 578 F.2d at 1112. Here, the evidence demonstrated that Appellants are interested in this case, they have an understanding of the case, and they represented that they will "litigate vigorously" to obtain a successful result for each member of the class. Contrary to the trial court's findings, it is immaterial to the limited inquiry on whether the court should certify the class whether Appellants attended city council meetings or knew the name of the mayor or any city councilmen. E.g., Brooks v. S. Bell Tel. & Tel. Co., 133 F.R.D. 54, 58 (S.D. Fla. 1990) (noting that to meet adequacy showing, plaintiffs must demonstrate that they will vigorously prosecute action, and provide both adequate financing and competent counsel).

b. Class Counsel's Ability To Effectively Advocate For The Class.

Class counsel's prior experience in a similar case is competent, substantial evidence of adequacy. Addison, 979 So.2d at 256 (citing Litvak v. Scylla Props., LLC, 946 So.2d 1165, 1171 n.8 (Fla. 1st DCA 2006) (noting adequacy met where class counsel were experienced and included attorney who had previously handled similar litigation)). The trial court correctly found that class counsel was competent to represent Appellants in this litigation. However, the trial court determined that class counsel could not adequately represent the class because if Appellants prevailed, the City would be required to create a common fund for the refunds, which would be used in part to pay the attorney's fees, creating an impermissible conflict of interests between class counsel and a portion of the class. This determination was erroneous. Our courts recognize that attorneys in class actions cases are entitled to attorneys' fees from a common fund. E.g., Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188, 190 (1942) (recognizing that attorneys are entitled to attorneys' fees from common fund in class action tax challenges). There is no conflict of interest simply because the attorney's fees would be paid from a common fund.

C. Rule 1.220(b).

In addition to satisfying rule 1.220(a), Appellants were also required to satisfy one of the three subdivisions of rule 1.220(b). Fla. R. Civ. P. 1.220(b) ; Sosa, 73 So.3d at 106 ; Campbell, 827 So.2d at 269.

Here, Appellants sought certification under rule 1.220(b)(2) or (b)(3). The trial court determined that certification under rule 1.220(b)(2) was not appropriate because Appellants "had done nothing to address their purported dissatisfaction with the fire service user fee until this suit was filed," and concluded that the case actually relates predominantly to money damages.

" Rule 1.220(b)(2) requires that the party opposing the class has acted or refused to act on grounds applicable to all class members, thereby making final injunctive or declaratory relief appropriate." Addison, 979 So.2d at 251. Rule 1.220(b)(2) certification is "appropriate only for the resolution of class claims that rest on the same grounds and apply equally to all members of the class." Wallant, 891 So.2d at 1117 (citing Holmes v. Cont'l Can Co., 706 F.2d 1144, 1155 (11th Cir. 1983) (emphasizing homogeneity of claims and interests)).

The relief sought here is primarily injunctive or declaratory. Appellants assert that the City charged and continues to charge illegal, invalid, and unconstitutional fire service user fees, which are uniformly billed on its utility bill to all the members of the class. Prior to filing suit, Appellants alleged that they asked the City to stop charging the fire fees, and the City refused. Monetary relief is incidental to the declaratory relief, which is the focus of Appellants' class petition. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998) (explaining that incidental damages are those damages that flow directly to class members once liability to class as whole on claims forming basis of injunctive or declaratory relief is established).

The trial court also determined that certification under rule 1.220(b)(3) was not appropriate because Appellants did not "satisfy the requirement of Rule 1.220(b)(3) that class representation 'is superior to other available methods for the fair and efficient adjudication of this controversy.' " To qualify for certification under rule 1.220(b)(3), a class must meet two requirements: 1) the common questions must predominate over any questions affecting only individual members, and 2) the class resolution must be superior to other available methods for the fair and efficient adjudication of the controversy. Campbell, 827 So.2d at 269. The rule provides a non-exhaustive list of factors pertinent to the predominance and superiority requirements. Id. Concerning predominance, the Florida Supreme Court explained in Sosa that "a class representative establishes predominance if he or she demonstrates a reasonable methodology for generalized proof of class-wide impact. A class representative accomplishes this if he or she, by proving his or her own individual case, necessarily proves the cases of the other class members." 73 So.3d at 112 (citation omitted). The class representative's case must not merely raise a common question; the proof of the class representative's case must also "answer[ ] the question." Porsche Cars N. Am., Inc. v. Diamond, 140 So.3d 1090, 1096 (Fla. 3d DCA 2014) (citing Sosa, 73 So.3d at 111 ); see Dukes, 564 U.S. at 350, 131 S.Ct. 2541 ("What matters to class certification ... is not the raising of common 'questions'-even in droves-but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers." (citation omitted)). In this case, common issues predominate over individual ones. The City treated Appellants and the putative class members in the same manner. If Appellants prove their case, they will prove the case for each class member. Thus, predominance is satisfied.

"[T]o find superiority, a court must find all other methods of resolving the issues in a case to be inferior to a class action." Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1141 (Fla. 3d DCA 2008) (quoting Sanneman v. Chrysler Corp., 191 F.R.D. 441, 455 (E.D. Pa. 2000) ). The purpose of the superiority requirement is to ensure the "class action would achieve economies of time, effort, and expense, and promote ... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness." Amchem Prods., Inc., 521 U.S. at 615, 117 S.Ct. 2231 (quoting Fed. R. Civ. P. 23 advisory committee notes). In examining superiority, the trial court should consider "(1) whether a class action would provide the class members with the only economically viable remedy; (2) whether there is a likelihood that the individual claims are large enough to justify the expense of separate litigation; and (3) whether a class action cause of action is manageable." Sosa, 73 So.3d at 116. Here, the superiority factors weigh in favor of class certification.

There are potentially more than 22,000 class members. Their individual claims, which are as small as $14.30 per month (amounting to $171.60 a year), would not justify filing separate actions. Allowing Appellants to proceed with a class action provides an economically feasible remedy, given the modest potential individual damage recovery for each class member. Further, because the potential class members' claims are based on the same common course of conduct by the City against Appellants, a class action would be a more manageable and more efficient use of judicial resources than individual claims. Therefore, Appellants and the putative class members satisfy rule 1.220(b)(3)'s superiority requirement.

Still, the trial court denied class certification based on the "necessity doctrine," concluding that if Appellants prevail on their individual claims, the judgment would apply to all who paid the fire fees, thus eliminating the need for Appellants' challenge to proceed as a class action. See Gayle v. Warden Monmouth Cty. Corr. Inst., 838 F.3d 297, 309 (3d Cir. 2016) (collecting cases); M.R. v. Bd. of Sch. Comm'rs of Mobile Cty., 286 F.R.D. 510, 518 n.11 (S.D. Ala. 2012) (collecting cases); Daniel Tenny, Note, There Is Always a Need: The "Necessity Doctrine" and Class Certification Against Government Agencies, 103 Mich. L. Rev. 1018, 1019 n.8 (2005) (collecting cases). Applying this doctrine, courts sometimes refuse to certify classes in public law cases because government agencies can be expected to implement their rulings in good faith. E.g., Dionne v. Bouley, 757 F.2d 1344, 1357 (1st Cir. 1985) ; Alliance to End Repression v. Rochford, 565 F.2d 975, 980 (7th Cir. 1977) ; Mills v. Dist. of Columbia, 266 F.R.D. 20, 22 (D.D.C. 2010). However, the application of this doctrine is discretionary-not automatic-and must be administered with careful attention to the enforcement dynamics of particular disputes. E.g., Dionne, 757 F.2d at 1356 (recognizing discretion of federal courts to "deny Rule 23(b)(2) certification where it is a formality or otherwise inappropriate" but emphasizing need for attention to "situations where a class certification under Rule 23(b)(2) will arguably be unnecessary, but where other considerations may render a denial of certification improper").

Class certification is appropriate in this case. "It is well-recognized in Florida that a taxpayer may properly bring a class action on behalf of himself and other taxpayers similarly aggrieved when the same legal questions are involved and the character of relief is applicable to all." State ex rel. Devlin v. Dickinson, 305 So.2d 848, 850 (Fla. 1st DCA 1974) ; see, e.g., Dep't of Rev. v. Kuhnlein, 646 So.2d 717, 721 (Fla. 1994) ("We also are unpersuaded by the State's claim that a refund claim cannot be cast as a class action. Any constitutional claim affecting a class of persons can be the proper subject of a class action, provided other procedural requirements are met, as they were here."). While the benefits of the injunctive and declaratory relief sought by Appellants would run to the putative class without class certification, the requested refund relief would not. See, e.g., Zlinkoff, 821 So.2d at 1131. ("Taxpayers, such as the plaintiff class, are normally entitled to a refund of taxes paid pursuant to an invalid assessment."). Thus, class certification is authorized here under either rule 1.220(b)(2) or (b)(3).

CONCLUSION

For these reasons, we conclude that the trial court erred by denying Appellants' motion for class certification. We hold that Appellants established standing as well as sufficiently met all of the requirements set forth in rule 1.220. We reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

TORPY and EISNAUGLE, JJ., concur.

      Our decision in Discount Sleep of Ocala, LLC, which determined the fire service user fee was repealed based on the plain language of Ordinance 6015, governs this case. See Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) (explaining that appellate courts' decisions "represent the law of Florida unless and until they are overruled by [the Florida Supreme] Court"). Thus, the trial court was without authority to find that the original fire service user fee was never repealed.

      Rule 1.220(a) provides:
      (a) Prerequisites to Class Representation. Before any claim or defense may be maintained on behalf of a class by one party or more suing or being sued as the representative of all the members of a class, the court shall first conclude that (1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

      As the trial court noted in its order, there are other options to cover the refunds, including exploring an enactment, pursuant to chapter 197, of a lawfully authorized "special assessment"; using a portion of the city "reserves"; implementing bonds; selling the City's "surplus property"; transferring funds from other city accounts; merger with other fire departments; pension reform; and choosing to reduce or eliminate certain services.

      The trial court placed some weight on Appellants' failure to attend the evidentiary hearing. However, this does not demonstrate that they cannot adequately represent the class members. Inherent in the adequacy requirement is "an expectation of a 'minimal level of interest in the action.' " Leibell v. Miami-Dade Cty., 84 So.3d 1078, 1085 (Fla. 3d DCA 2012) (quoting Massengill v. Bd. of Educ., Antioch Cmty. High Sch., 88 F.R.D. 181, 186 (N.D. Ill. E.D. 1980). There is no requirement that class representatives attend or testify at the evidentiary hearing. In fact, in deciding class certification, a trial court is usually "restricted" to the substance of the class certification motion. Sosa, 73 So.3d at 104-05. Rather, the evidentiary hearing is primarily used to evaluate the basis for class certification when there may be questions regarding whether common issues predominate or whether the proposed class representatives provide a superior method for the fair and efficient adjudication of the controversy. Id. at 105.

      Rule 1.220(b) reads in relevant part:
      (b) Claims and Defenses Maintainable. A claim or defense may be maintained on behalf of a class if the court concludes that the prerequisites of subdivision (a) are satisfied, and that:
      ...
      (2) the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate; or
      (3) the claim or defense is not maintainable under either subdivision (b)(1) or (b)(2), but the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy. The conclusions shall be derived from consideration of all relevant facts and circumstances, including (A) the respective interests of each member of the class in individually controlling the prosecution of separate claims or defenses, (B) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated, (C) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted, and (D) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class.


author: PER CURIAM.

text:
    Rodney H. HOLMES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-240
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018
    Rodney H. Holmes, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LOGUE, SCALES and LINDSEY, JJ.
   PER CURIAM.

Rodney Holmes appeals the Miami-Dade Circuit Court's denial of his petition for a writ of habeas corpus. In 2002, Holmes was convicted of attempted first degree murder, attempted robbery, and attempted burglary with an assault; and the jury further found that a firearm was discharged and caused great bodily harm during the commission of these crimes. The trial court sentenced Holmes to life imprisonment. This sentence was affirmed in Holmes v. State, 883 So.2d 350 (Fla. 3d DCA 2004).

Thereafter, Holmes has filed ten post-conviction motions or petitions in this Court, including the instant petition. He has attacked his sentence unsuccessfully by arguing that his sentence under a firearm enhancement was unlawful because there was insufficient evidence at trial that he possessed or discharged a firearm during the alleged crimes (an argument he again makes in pending case 3D16-2076). In the instant appeal, Holmes alleges that his life sentence is unconstitutionally impermissible because it is indefinite. As the trial court noted in its written order below, this issue has been resolved by the Florida Supreme Court adverse to Holmes's position. Ratliff v. State, 914 So.2d 938, 940 (Fla. 2005) (holding that a sentence of life imprisonment does not violate the proscription in Article I, Section 17 of the Florida Constitution against an indefinite term of imprisonment).

Accordingly, we deny the instant petition.

ORDER TO SHOW CAUSE

Holmes is hereby directed to show cause, within forty-five days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, petitions, motions or other proceedings related to his criminal sentencing in circuit court case number 01-18524A.

If Holmes does not demonstrate good cause, any such further and unauthorized filings by Holmes will subject him to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including forfeiture of gain time. See § 944.279(1), Fla. Stat. (2017).

Petition denied. Order to show cause issued.

      The trial court entered an order in 2009, to make a technical correction to the sentence, but the corrected order left intact the life sentence.

      Holmes v. State, 221 So.3d 625 (Fla. 3d DCA 2016) (table); Holmes v. State, 203 So.3d 167 (Fla. 3d DCA 2016) (table); Holmes v. State, 134 So.3d 465 (Fla. 3d DCA 2014) (table); Holmes v. State, 107 So.3d 419 (Fla. 3d DCA 2013) (table); Holmes v. State, 46 So.3d 1010 (Fla. 3d DCA 2010) (table); Holmes v. State, 46 So.3d 631 (Fla. 3d DCA 2010) (table); Holmes v. State, 982 So.2d 698 (Fla. 3d DCA 2008) (table); Holmes v. State, 956 So.2d 1195 (Fla. 3d DCA 2007) (table). In addition, Holmes has another post-conviction appeal pending in this Court in case number 3D16-2076.


author: EMAS, J.

text:
    Christopher JESTER and Denise Jester, Appellants, v. Carol PAWLEY, Appellee.
    No. 3D16-2641
    District Court of Appeal of Florida, Third District.
    Opinion filed January 24, 2018
    Scott Alan Orth (Hollywood), for appellants.
    Martinez Morales, Raul Morales and Aaron P. Honaker, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   EMAS, J.

Christopher and Denise Jester seek review of the trial court's order dismissing, with prejudice, all claims against Carol Pawley. With the exception of one count-for unjust enrichment-we affirm the order in its entirety.

As to the claims for breach of fiduciary duty, violations of the Florida Unfair and Deceptive Trade Practices Act (FDUTPA, Chapter 501, Florida Statutes (2016)), violation of sections 475.42(1)(e) and 475.25(1)(b), Florida Statutes (2016) and for intentional infliction of emotional distress, we affirm the trial court's dismissal without further discussion.

As to the counts for negligent misrepresentation, fraud and rescission, and fraud in the inducement, the trial court properly dismissed those claims against Pawley as they are barred by the statute of frauds, section 725.01, Florida Statutes (2016). See Canell v. Arcola Housing Corp., 65 So.2d 849 (Fla. 1953) ; 940 Lincoln Road Assoc., LLC v. 840 Lincoln Road Enters., Inc., No. 3D16-2748, 237 So.3d 1099, 2017 WL 6598582 (Fla. 3d DCA Dec. 27, 2017) ; India Am. Trading Co. v. White, 896 So.2d 859 (Fla. 3d DCA 2005) ; Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972).

However, to the extent the trial court concluded that the statute of frauds barred the unjust enrichment count pleaded by the Jesters against Pawley, this was error, and we therefore reverse the trial court's order dismissing that count with prejudice. See Kolski ex rel. Kolski v. Kolski, 731 So.2d 169, 172 (Fla. 3d DCA 1999) ; Ala v. Chesser, 5 So.3d 715, 719-20 (Fla. 1st DCA 2009) ; Brace v. Comfort, 2 So.3d 1007 (Fla. 2d DCA 2008) ; Harrison v. Pritchett, 682 So.2d 650 (Fla. 1st DCA 1996). We reject the additional arguments advanced by Pawley as a basis for affirming the dismissal of the unjust enrichment count, as they require consideration of matters beyond the four corners of the amended complaint and its attached exhibits, and also present questions of fact unsuitable for resolution on a motion to dismiss for failure to state a cause of action. See Santiago v. Mauna Loa Inv., LLC, 189 So.3d 752, 755 (Fla. 2016) (holding that when a trial court "determines the sufficiency of a complaint to state a cause of action, it applies the so-called 'four corners rule,' " by which "the court's review is limited to an examination solely of the complaint and its attachments"); Winter v. Miami Beach Healthcare Grp., Ltd., 917 So.2d 973, 974 (Fla. 3d DCA 2005) (holding: "A trial court, when considering a motion to dismiss for failure to state a cause of action, "must look only to the four corners of the complaint including the attachments; and the allegations contained therein should be taken as true without regard to the pleader's ability to prove them") (quoting Coriat v. Global Assur. Group, Inc., 862 So.2d 743, 743 (Fla. 3d DCA 2003) ).

We reverse the trial court's order dismissing with prejudice the claim for unjust enrichment against Carol Pawley. We affirm in all other respects the trial court's order of dismissal.

Affirmed in part, reversed in part, and remanded.

      The amended complaint included counts against several other defendants, none of whom are parties to this appeal.

      We express no opinion as to what effect, if any, provisions contained in the parties' contract may have on the Jesters' unjust enrichment claim.


text:
    Adrian JAMES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3557
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 16, 2018
    Adrian James, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Adrian James appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court's denial of relief as to all grounds except claim three. As to claim three, we remand for an evidentiary hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

COHEN, C.J., ORFINGER and LAMBERT, JJ., concur.


text:
    Allen Lee DAVIS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-3239
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 16, 2018
    Allen L. Davis, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Allen Davis appeals the summary denial of his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his first claim, Davis alleged that his trial counsel was ineffective in failing to file a motion to suppress certain incriminating statements that Davis had made to a detective. In summarily denying the claim, the trial court relied on the detective's trial testimony to determine that a motion to suppress would have been fruitless. However, the record does not conclusively refute Davis' claim that his statements were made during a custodial interrogation, during which he was not advised of his Miranda rights. Accordingly, on remand, the trial court must either attach records conclusively refuting this claim or hold an evidentiary hearing. We affirm, without discussion, the summary denial of the remainder of Davis' claims.

AFFIRMED, in part; REVERSED, in part; and REMANDED.

PALMER, EVANDER and LAMBERT, JJ., concur.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Ashley BISHOP, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2497
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 16, 2018
    Ashley Bishop, Sanderson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Ashley Bishop, appeals the summary denial of his motion to correct an illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his rule 3.800(a) motion, Appellant alleged that the court erred in sentencing him upon a second violation of probation to twenty years as an habitual felony offender without re-designating him an HFO. The State properly concedes error in that the trial court's record attachments do not show whether there was a re-designation of Appellant's HFO status during Appellant's 2014 VOP resentencing and/or the current 2016 VOP resentencing. See State v. Akins , 69 So.3d 261 (Fla. 2011) (holding that HFO designation must be restated at each resentencing to be applied); Wighard v. State , 71 So.3d 170 (Fla. 5th DCA 2011) (applying Akins and holding that HFO designation was lost when it was not restated at VOP hearing). Absent an HFO designation, Appellant's twenty-year sentence exceeds the statutory maximum for a second-degree felony. Accordingly, we reverse and remand this cause for the trial court to either attach refuting records or resentence Appellant to a legal, non-HFO sentence.

REVERSED and REMANDED.

ORFINGER, TORPY and EVANDER, JJ., concur.


author: B.L. Thomas, C.J.

text:
    James WELCH, Appellant, v. STATE of Florida; Julie L. Jones, Secretary, Department of Corrections, Appellees.
    No. 1D17-1603
    District Court of Appeal of Florida, First District.
    February 20, 2018 Rehearing Denied June 25, 2018
    James Welch, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Barbara Debelius, Assistant Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Appellees.
   B.L. Thomas, C.J.

Appellant challenges the trial court's order transferring his petition for writ of habeas corpus to the sentencing court, because the petition challenges Appellant's judgment and/or sentence. Because Appellant's petition is a time-barred collateral attack on his sentence, we reverse the trial court's order and remand with instructions to dismiss.

In his petition for writ of habeas corpus, all of Appellant's claims for relief were based on violations of his constitutional due process rights, and he summarized his petition by stating he was "denied his 5th, 6th, and 14th Amendment rights to due process of law and hearing before an impartial jury or fact finder." Such claims must be made by motion pursuant to Florida Rule of Criminal Procedure 3.850.

"The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available by motion in the sentencing court pursuant to rule 3.850." Baker v. State , 878 So.2d 1236, 1245 (Fla. 2004). Dismissal of a petition for writ of habeas corpus, rather than transfer, is appropriate when the petitioner seeks "the kind of collateral postconviction relief available through a motion filed in the sentencing court, and which (1) would be untimely if considered as a motion for postconviction relief under rule 3.850...." Zuluaga v. State, Fla. Dep't of Corr. , 32 So.3d 674, 677 (Fla. 1st DCA 2010) (quoting Baker , 878 So.2d at 1246 ). Appellant's sentence became final on December 9, 2010, and he filed his petition on March 7, 2017, long after the two-year window under rule 3.850 had closed. We therefore reverse the trial court's order and remand with instructions to dismiss Appellant's petition.

REVERSED and REMANDED .

Wolf and Winokur, JJ., concur.


text:
    The CITY OF SWEETWATER, Florida, et al., Appellants, v. Orlando LOPEZ, etc., Appellee.
    No. 3D16-1879
    District Court of Appeal of Florida, Third District.
    Opinion filed March 14, 2018
    Genovese Joblove & Battista, John H. Genovese and Jesus M. Suarez, for appellants.
    Kluger, Kaplan, Silverman, Katzen & Levine, Todd A. Levine and Alan J. Kluger, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   EMAS, J.

INTRODUCTION

This appeal arises from a dispute between the Mayor of The City of Sweetwater and members of its City Commission. Appellant, The City of Sweetwater ("Sweetwater" or "the City"), Florida, by and through its City Commissioners, Jose M. Diaz, Jose A. Bergouignan, Prisca Barreto, Manuel Duasso, Idania Llanio, Isolina Marano and Eduardo Suarez ("the Commission"), appeals the trial court's entry of two final summary judgment orders in favor of Orlando Lopez, Mayor of The City of Sweetwater ("Mayor Lopez"), on two separate claims made in his complaint. We reverse the summary judgment order on the first claim, as genuine issues of material fact remain in dispute as to the underlying claim. We reverse the summary judgment order on the second claim, and hold that the trial court should have dismissed the underlying claim as moot.

FACTS AND BACKGROUND

On July 17, 2015, Mayor Lopez submitted a proposed budget for Sweetwater's 2015-16 fiscal year that commenced on October 1, 2015 and ended on September 30, 2016. In an attempt to compensate for the previous year's deficit due to increased expenses, this proposed budget increased Sweetwater's millage rate from approximately 2.74 mills to 4.5065 mills. On July 29, 2015, during a special commission meeting, the Commission proposed to set Sweetwater's tentative millage rate for the 2015-16 fiscal year at 2.7493 mills, the same rate as the previous fiscal year. Given this lower millage rate, and in order to propose a balanced budget, Mayor Lopez instituted several layoffs effective August 14, 2015.

Apart from its financial troubles, Sweetwater's police department also needed rebuilding. Mayor Lopez laid off several police officers and also hired four former police officers from the City of Miami police department to comprise its new command staff.

On August 18, 2015, the Commission approved three resolutions: Resolution 4089, directing Mayor Lopez to rescind any layoffs which took place during the months of July 2015 and August 2015; Resolution 4090, imposing a moratorium on layoffs lasting until September 30, 2015; and Resolution 4091, directing Mayor Lopez to eliminate unbudgeted positions for the budget year ending September 30, 2015 (the "Commission Resolutions").

Mayor Lopez vetoed all three Commission Resolutions, and the Commission then overrode each veto. On August 26, 2015, the Commission adopted Resolution 4092, providing for the elimination of funding for certain positions within Sweetwater and prohibiting the use of nearly all "take home" vehicles by city personnel (the "Budget Resolution"), for the budget year ending September 30, 2015. Again, Mayor Lopez vetoed the Budget Resolution and, again, the Commission overrode his veto.

Mayor Lopez issued a new proposed budget reflecting the lower millage rate the Commission voted for and, on September 14, 2015, the Commission held a special public hearing to consider Mayor Lopez's new proposed budget. At the meeting, the Commission approved Mayor Lopez's new proposed budget as Sweetwater's tentative budget for the 2015-16 fiscal year (the "Tentative Budget"). On September 21, 2015 and September 23, 2015, the Commission held two meetings in which it proposed amendments to the Tentative Budget. On September 28, 2015, the Commission adopted certain budget amendments and adopted a final budget (the "Final Budget"). On October 23, 2015, Mayor Lopez vetoed the Final Budget. On October 28, 2015, the Commission overrode Mayor Lopez's veto of the Final Budget.

On January 4, 2016, the Commission authorized, by a unanimous vote, the filing of a lawsuit on behalf of the City of Sweetwater to resolve the City's disputes with Mayor Lopez. On January 25, 2016, Mayor Lopez filed suit against the City and the Commission, seeking declaratory relief, injunctive relief, and an alternative writ of mandamus. In his complaint, Mayor Lopez alleged that the Commission's 2015-16 Final Budget violated Florida law and the City Charter. Mayor Lopez also alleged that the Commission's Resolutions (4089, 4090, and 4091) and the Budget Resolution (4092) infringed on the mayor's executive powers to appoint and remove city employees. In addition to filing suit, Mayor Lopez vetoed the Commission's Authorizing Resolution and on January 29, 2016, the Commission overrode Mayor Lopez's veto.

On February 2, 2016, the City filed a petition for writ of mandamus (later consolidated as a counterclaim to Mayor Lopez's action) and on April 13, 2016, the City filed an additional counterclaim seeking declaratory relief. Among other things, the City sought to compel Mayor Lopez to implement the Final Budget. On April 4, 2016, the Commission approved Resolution 4171, rescinding Resolutions 4089, 4090 and 4091.

Thereafter, the parties filed cross-motions for summary judgment. Following a hearing, the trial court granted summary judgment in favor of Mayor Lopez and against the City on all counts. In doing so, the trial court found, among other things, that: (i) the Commission's Final Budget is unenforceable because it violates the City Charter and Florida law and therefore, Mayor Lopez is authorized to operate the City using the approved Tentative Budget until such time as the Commission passes a final budget consistent with the Charter and Florida law; (ii) the Commission Resolutions constituted an improper usurpation of the Mayor's administrative and executive authority; and (iii) the Commission lacked authority under the Charter to legislate funding for specific personnel positions through the Budget Resolution.

This appeal follows, and we review de novo the final summary judgment order. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

ANALYSIS

1. Summary judgment in favor of Mayor Lopez on the Commission's 2015-16 Final Budget

The City of Sweetwater operates under a so-called "strong mayor" form of government. Sweetwater's legislative power is vested in the commission, while its executive authority is vested in the mayor, who is responsible for the administration of the city government. See City of Sweetwater Charter, §§ 3.01, 4.00 ("the Charter").

Section 5.01 of the Charter establishes the City's budget adoption procedure. First, the mayor delivers a budget message and proposed operating budget for the next fiscal year to the city commission. In the budget message, the mayor must include a proposed millage rate for ad valorem taxation in the next fiscal year. Next, the city commission examines the proposed budget and the commission may hold workshop meetings to consider the proposed budget. The commission may also make tentative amendments to the proposed budget by majority vote and adopt a tentative budget as required by state law. The commission must also consider the mayor's millage rate proposal and adopt a tentative millage as required by state law. Lastly, the commission "shall adopt the final operating budget and millage for the next fiscal year ... by resolution or ordinance, as required by state law." The Charter expressly provides that "[i]n the event the city commission fails to adopt an operating budget for the ensuing fiscal year as required by state law and this Charter, the city may continue fiscal operations as provided by state law."

In addition, Section 5.02 of the Charter authorizes the commission to amend the budget in the event the fiscal year revenues will be in excess of those estimated or insufficient to meet the amount appropriated.

As provided in the Charter, the budget must also comply with state law, specifically, Chapter 166, Florida Statutes, which governs municipalities. Section 166.241(2) provides in relevant part:

The amount available from taxation and other sources , including balances brought forward from prior fiscal years, must equal the total appropriations for expenditures and reserves. At a minimum, the adopted budget must show for each fund, as required by law and sound financial practices , budgeted revenues and expenditures by organizational unit which are at least at the level of detail required for the annual financial report under s. 218.32(1).

(Emphasis added.)

The City contends the trial court erred in determining there were no genuine issues of material fact and in granting summary judgment in favor of Mayor Lopez upon a determination that Mayor Lopez had the authority to refuse to implement the 2015-16 Final Budget as passed by the Commission. We agree with the City that summary judgment was improper, given the existence of genuine issues of material fact.

Mayor Lopez contended that he was authorized to refuse implementation of the Final Budget, as passed by the Commission, because it was not a balanced budget and because it failed to utilize sound financial practices, as evidenced by the inclusion of $2 million in projected revenue from the sale of public land. Mayor Lopez supported this contention with an affidavit from Richie C. Tandoc, a certified public accountant, who opined, inter alia , that the Final Budget adopted by the Commission was not a balanced budget and was not prepared in compliance with section 166.241(2) or in accordance with generally accepted accounting principles.

The City, in opposition to Mayor Lopez's motion for summary judgment (and in support of its own cross motion for summary judgment) submitted two affidavits from Deede Weithorn, a certified public accountant retained by the City. Ms. Weithorn averred that, in addition to her thirty-year career as a CPA, she led the City of Miami Beach's budget formulation during most of her eight-year tenure as a Miami Beach City Commissioner. Ms. Weithorn opined, inter alia , that the Final Budget was balanced and complied with the requirements of section 166.241(2).

The competing affidavits submitted in support of the parties' respective positions created a genuine issue of material fact, and therefore the trial court erred in entering judgment in favor of Mayor Lopez on this claim. Holl v. Talcott, 191 So.2d 40, 43-45 (Fla. 1966) ; Taylor v. Florida City, 322 So.2d 35 (Fla. 3d DCA 1975). We reverse the final summary judgment entered in favor of Mayor Lopez as to the 2015-16 Final Budget and remand for further proceedings,

2. Summary judgment in favor of Mayor Lopez challenging the validity of the City's Commission Resolutions and Budget Resolution for the 2014-15 fiscal year

On August 18, 2015, the Commission adopted three Commission Resolutions: Resolution 4089, directing Mayor Lopez to rescind any layoffs which took place during the months of July 2015 and August 2015; Resolution 4090, imposing a moratorium on layoffs lasting until September 30, 2015; and Resolution 4091, directing Mayor Lopez to eliminate unbudgeted positions for the budget year ending September 30, 2015. On August 26, 2015, the Commission adopted a Budget Resolution (Resolution 4092), providing for the elimination of funding for certain positions within Sweetwater and prohibiting the use of nearly all "take home" vehicles by city personnel (the "Budget Resolution"), for the budget year ending September 30, 2015.

Mayor Lopez vetoed the Commission Resolutions and the Budget Resolution, and the Commission subsequently overrode those vetoes. Mayor Lopez did not enact or implement either the Commission Resolutions or the Budget Resolution. Instead, four months later, in January 2016, Mayor Lopez instituted the instant action below, challenging the validity of the Commission Resolutions and the Budget Resolutions. Three months after the action was instituted, the City adopted a resolution (Resolution 4171) rescinding the Commission Resolutions.

The Commission Resolutions and the Budget Resolution all related to the City's 2014-15 fiscal year. These resolutions had all expired of their own accord on September 30, 2015 (the last day of the fiscal year) before Mayor Lopez filed his lawsuit challenging them. Further, the Commission Resolutions were expressly rescinded by the City during the pendency of the action below. These circumstances, the City argues, rendered moot any challenge by Mayor Lopez because no justiciable controversy existed for the trial court to resolve. We agree.

"An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect." Godwin v. State, 593 So.2d 211, 212 (Fla. 1992) (citing DeHoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1943) ). A narrow exception to the mootness doctrine permits courts to decide an otherwise moot issue "[i]f the underlying dispute is 'capable of repetition, yet evading review.' " Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (quoting Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911) ). See also Morris Publ'g Grp., LLC v. State, 136 So.3d 770, 776 (Fla. 1st DCA 2014) (holding that the mootness exception applies when "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again").

We conclude that this exception is inapplicable to the instant case. There is nothing to establish a reasonable expectation that the mayor will be subjected to the same action again or that such a dispute is likely to recur. We also note that the Mayor Lopez waited several months after adoption of the resolutions at issue before filing suit to challenge their validity, undermining any assertion that this action meets the "evading review" prong.

Because the Commission Resolutions and Budget Resolution expired of their own accord or ceased to be capable of implementation, well prior to the institution of the action below, the trial court erred in resolving challenges to their validity. In the instant case there was no longer "a bona fide, actual, present, and practical need for the declaration" sought by Mayor Lopez as to these Resolutions. Dept. of Envtl. Prot. v. Garcia, 99 So.3d 539, 544 (Fla. 3d DCA 2011). The summary judgment on the Commission Resolutions and the Budget Resolutions amounted to an advisory opinion which courts will not render.

Martinez v. Scanlan, 582 So.2d 1167, 1174 (Fla. 1991).

We agree that the trial court erred in reaching the merits of, and in entering final judgment in favor of Mayor Lopez on, his summary judgment motion regarding the Commission Resolutions and the Budget Resolution. We reverse with directions to dismiss the claims as moot.

CONCLUSION

We therefore reverse the trial court's two final summary judgment orders in favor of Mayor Lopez, and remand with directions and for further proceedings consistent with this opinion.

      A "mill" or millage is the rate to be applied, for example, in calculating the amount of taxes imposed on real property, with one mill representing one dollar per $1000 in assessed property value. See generally § 192.001, Fla. Stat. (2016). As an illustration, applying the proposed millage rate of 4.5065 mills, a property with an assessed value of $100,000 would be taxed in the amount of $450.65.

      Mayor Lopez contended that this projected revenue was not "available" within the meaning of section 166.241(2), because this public land: 1) had not been appraised; 2) was not under contract for sale; 3) could not be sold unless such action was approved by a referendum, as required by the Charter; and 4) had not been the subject of a required referendum. Further, the City owed $1.9 million for an existing line of credit that was due to be paid on November 1, 2015, which debt was not included in the Commission's Final Budget.

      In addition, the City's independent auditor, Carlos Trueba, testified that, as a financial professional, he could not justify including in the budget the proceeds from the sale of the public land, because doing so violated sound financial practices and generally accepted accounting principles.

      The Budget Resolution and the Commission Resolutions expired on September 30, 2015, the last day of the City's 2014-15 fiscal year. By that date, neither the Commission Resolutions nor the Budget Resolution had been implemented and therefore could have no effect. Mayor Lopez did not file the subject action until January 25, 2016.

      The City of Sweetwater was formed in 1941, and there is no evidence presented upon this record to suggest such an issue has ever arisen in its 75-year history.

      The circumstances of this case involve the executive and legislative branches of a local government opposing one another regarding issues that at least touch upon aspects of a political question, further cautioning against judicial intervention. See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (setting forth six criteria to be considered in gauging whether a case involves a political question: (1) a textually demonstrable commitment of the issue to a coordinate political department; (2) a lack of judicially discoverable and manageable standards for resolving it; (3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4) the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (5) an unusual need for unquestioning adherence to a political decision already made; or (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question).


author: SALTER, J.

text:
    CENTRAL CARILLON BEACH CONDOMINIUM ASSOCIATION, INC., et al., Petitioners, v. Pedro J. GARCIA, etc., et al., Respondents.
    Nos. 3D17-1198 & 3D17-1197
    District Court of Appeal of Florida, Third District.
    Opinion filed March 21, 2018
    Rennert Vogel Mandler & Rodriguez, P.A., and Thomas S. Ward and Jason R. Block, for petitioners.
    Abigail Price-Williams, Miami-Dade County Attorney, and Jorge Martinez-Esteve and Daija Page Lifshitz, Assistant County Attorneys, for respondent Pedro J. Garcia.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

In these consolidated cases, two condominium associations ("Associations") seek a writ of certiorari quashing orders denying their motions for certification of a class of the defendant unit owners in their respective associations. The plaintiff/respondent in each case is the property appraiser of Miami-Dade County, Florida ("Appraiser"). We treat the cases as appeals from non-final orders determining "whether to certify a class," and affirm the orders below.

The interplay between (a) the condominium statute authorizing a condominium association to sue and be sued "on behalf of all unit owners concerning matters of common interest," section 718.111(3), Florida Statutes (2016), and (b) the statute requiring the "taxpayer" to be the party defendant in a circuit court action brought by a county property appraiser to appeal an administrative determination of the county's value adjustment board, section 194.181(2), Florida Statutes (2016), apparently presents a case of first impression in Florida's appellate courts. As the issue turns on the meaning and application of the two statutes, our review of the circuit court orders denying class certification is de novo. Borden v. East-European Ins. Co., 921 So.2d 587, 591 (Fla. 2006).

Proceedings Below

Central Carillon Beach Condominium is condominium with some 140 residential units and various common elements. It is operated and maintained by petitioner/appellant Central Carillon Beach Condominium Association. Similarly, 2201 Collins Avenue Condominium has some 180 residential units and various common elements, all operated and maintained by petitioner/appellant 2201 Collins Avenue Condominium Association.

For tax year 2015, each of the Associations filed, with the approval of its board of directors, a single joint petition with the Miami-Dade County Value Adjustment Board (the "VAB") challenging the Appraiser's proposed assessments for all of the units within the applicable condominium building. Such a joint petition by an association on behalf of the unit owners is expressly authorized by a provision within the ad valorem tax statutes, though it is subject to (1) a determination by the property appraiser that the units "are substantially similar with respect to location, proximity to amenities, number of rooms, living area, and condition," and (2) notice by the association to each unit owner of a twenty-day right to opt out of inclusion in the joint petition. These conditions were satisfied in the present case, and the joint petitions were heard administratively and ruled upon by the VAB.

Each Association obtained, for its respective unit owners, substantial reductions in assessed value in the VAB decision-approximately 20% in the case of Central Carillon, and approximately 40% in the case of 2201 Collins Avenue. As further permitted by the ad valorem statutes, the Appraiser appealed those VAB determinations to the circuit court in separate lawsuits for each condominium. Each lawsuit, however, named each of the individual unit owners as a defendant; it did not sue the applicable Association "on behalf of" all of the unit owners.

In response, each Association moved to dismiss the lawsuit and to strike the unit owners as defendants. Each Association sought joint representation of all unit owners in its condominium, as a defendants' class action (joint, representative defense, versus the joint, representative petition protesting the assessments, as had been the case before the VAB). The Appraiser opposed the motions to dismiss and moved to default all of the condominium unit owners for failing to file an individual responsive pleading. These motions were further briefed by counsel and then heard on the same day by the trial court.

The trial court entered separate, but (appropriately) nearly identical orders in each case, denying each Association's motion to dismiss and also denying its motion for certification of the unit owners as a defense class with the Association as the owners' class representative. These appeals followed.

Analysis

Allowing an Association to represent the interests of its hundred-plus unit owners in the Appraiser's appeal from the VAB reductions seems eminently logical. If a joint petition can be pursued before the VAB, why shouldn't a joint defense be allowed in the Appraiser's appeal from the VAB's determinations?

The answer is found in the plain language of section 194.181, "Parties to a tax suit." Subparagraph (2) of that statute states that the "taxpayer" shall be the party defendant in an action brought by the county property appraiser to appeal a decision of the VAB. "Taxpayer" is defined in section 192.001(13) to mean "the person or other legal entity in whose name property is assessed, including an agent of a timeshare period titleholder." The individual condominium units at issue in this case, together with each unit's undivided interest in the common elements, are assessed in the name of the individual owners-not their Association.

In response, the Associations argue that those statutes are contrary to the specific rights of collective representation given to them in the condominium law, section 718.111(3), and in Rule 1.221, Florida Rules of Civil Procedure. We disagree.

Section 718.111(3) provides, in pertinent part:

The association may contract, sue, or be sued with respect to the exercise or nonexercise of its powers. For these purposes, the powers of the association include, but are not limited to, the maintenance, management, and operation of the condominium property. After control of the association is obtained by unit owners other than the developer, the association may institute, maintain , settle, or appeal actions or hearings in its name on behalf of all unit owners concerning matters of common interest to most or all unit owners , including, but not limited to , the common elements; the roof and structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving an improvement or a building; representations of the developer pertaining to any existing or proposed commonly used facilities; and protesting ad valorem taxes on commonly used facilities and on units ; and may defend actions in eminent domain or bring inverse condemnation actions. If the association has the authority to maintain a class action, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action.

(Emphasis provided).

The provision only addresses ad valorem taxes in one phrase: "protesting ad valorem taxes on commonly used facilities and on units." The Associations protested the ad valorem taxes administratively on behalf of all units, but the lawsuits brought by the Appraiser against the unit owners are not "protests"-they are judicial review proceedings in which the unit owners are defendants. The specific cases in which an association may defend on behalf of all unit owners are "actions in eminent domain."

The Associations also argue that because they could bring a class action if they were appealing a decision of the VAB as plaintiff, the Associations "may be joined in an action as a representative of that class with reference to litigation," namely the actions brought by the Appraiser. But section 718.111(3), with its lack of precise application to the Appraiser's lawsuits against the unit owners, is no match for the precise requirement imposed by the ad valorem litigation provision, section 194.181(2), that when the Appraiser is the plaintiff seeking circuit court review of the VAB decision, "the taxpayer shall be the party defendant." (Emphasis provided).

Rule 1.221 essentially repeats the language in 718.111(3) in its enumeration of the circumstances in which an association may act on behalf of "association members." The defense of a circuit court ad valorem tax suit brought by a county property appraiser is not specifically mentioned in the Rule, while "defense of actions in eminent domain" is singled out for approved collective representation of owners by an association. Again, the oblique examples and categories within Rule 1.221 must yield to the precise legislative directive in section 194.181(2) ; "the taxpayer shall be the defendant." The Associations simply do not pay the taxes in question.

The numerous cases cited by the Associations approving collective or class representation of condominium unit owners by their condominium association do not involve, as the present cases do, a separate statute specifying that each individual unit owner must be a party defendant. See, e.g., Trintec Const., Inc. v. Countryside Village Condo. Ass'n, Inc., 992 So.2d 277, 281 (Fla. 3d DCA 2008) (permitting association as class representative as defendant on behalf of unit owners in contractor lien foreclosure case); Four Jay's Const., Inc. v. Marina at Bluffs Condo. Ass'n, Inc., 846 So.2d 555 (Fla. 4th DCA 2003) (permitting association as defense class representative in breach of contract case); Kesl, Inc. v. Racquet Club of Deer Creek II Condo., Inc., 574 So.2d 251 (Fla. 4th DCA 1991) (permitting association as defense class representative in suit for fees due from owners).

Our holding in these cases regarding property tax appeals brought by a county property tax appraiser against condominium unit owners does not dilute or qualify the continued amenability of other types of lawsuits to the common representation of unit owners by their association as permitted by section 718.111(3) and Rule 1.221.

Conclusion

Although we appreciate the Associations' arguments that judicial efficiency would be better served by allowing the Associations to represent the 140 (Central Carillon) or 180 (2201 Collins Avenue) unit owners as a defense class in the lawsuits brought by the Appraiser, those arguments must be presented to the Legislature rather than the courts if they are to be effectual.

The orders denying class certification are affirmed.

      Fla. R. App. P. 9.130(a)(3)(C)(vi).

      The common elements are not separately assessed. §§ 193.023(5), and 718.120(1), Fla. Stat. (2016). Each residential unit owner's undivided interest in those common elements is taxed as a part of the residential unit.

      These conditions are detailed in section 194.011(3)(e), Florida Statutes (2016).

      The separate lawsuits for each condominium and Association were defended by the same law firm. Because the same legal issues were presented in each lawsuit, the same trial judge heard and decided the motions applicable to each of the two Associations.

      It is undisputed that the Appraiser had a right to appeal the VAB decision pursuant to section 194.036(1), Florida Statutes (2016).


author: FERNANDEZ, J.

text:
    PUBLIX SUPER MARKETS, INC., Appellant, v. Jessie BELLAICHE, Appellee.
    No. 3D16-1983
    District Court of Appeal of Florida, Third District.
    Opinion filed March 28, 2018
    Weiss, Serota, Helfman, Cole & Bierman, P.L., Edward G. Guedes and Anne Reilly, for appellant.
    Shmuely & Willis, P.A., and Rami Shmuely ; Robert L. Switkes & Associates, P.A., and Robert L. Switkes ; Podhurst Orseck, P.A., and Stephen F. Rosenthal ; Michael Higer, P.A., and Michael J. Higer, for appellee.
    Before ROTHENBERG, C.J., and SALTER and FERNANDEZ, JJ.
   FERNANDEZ, J.

Publix Super Markets, Inc. appeals the trial court's final judgment entered in favor of the plaintiff below, Jessie Bellaiche, denying Publix's three post-trial motions for relief. Under the record before us, Publix was entitled to a directed verdict, as there was no evidence establishing either actual knowledge of the dangerous condition or that a Publix employee caused the dangerous condition. Accordingly, we reverse.

On August 11, 2010, Bellaiche, a 70-year-old woman, was shopping at a Publix store with her husband, John Basilone.

After arriving at a checkout station, Bellaiche realized that she had forgotten to put a couple of items that she wanted in her shopping cart. Basilone then went to retrieve those items from the appropriate aisle but also decided to pick up a few other things and order a sandwich from the deli. When Basilone returned to the checkout station, Bellaiche was sitting in a chair, crying. Basilone testified that when he came back, he "saw a man with a mop in his hand," but testified that he did not know what the man was doing.

Soon after, Basilone learned that after he left to go get the forgotten items, Bellaiche left her cart next to the cashier and started walking up a nearby aisle, aisle 17, to find her husband because he "was taking some time" to return. While walking up the aisle, Bellaiche slipped and fell on some water, which she did not see on the floor beforehand. Bellaiche asserts that after falling, she subsequently "saw a Publix employee with a mop in his hand." No one testified that this mop was wet or that the employee had been using it, either in aisle 17 or anywhere else within the store. Furthermore, at the time of Bellaiche's fall, Publix's store manager, Paul Fournier, testified that Publix utilized dry rayon mops to mop its floors, not pre-soaked cotton mops that could create puddles of water. Fournier also testified that the only custodian on duty at the time of the incident whose duty was to mop was Saint Gerard Thervil, and video surveillance shows that Thervil had only been using a broom and dustpan before Bellaiche's fall.

As a result of the incident, Bellaiche suffered a shoulder injury, which she underwent surgery for about one month later on September 8, 2010. Bellaiche's surgeon and physician, Dr. Leonard Remia, concluded that the surgery went well and that Bellaiche was making good progress afterward. Bellaiche was even able to fly to Paris more than once after the procedure was conducted. By October 2010, Bellaiche's pain had already diminished to zero to two on the pain scale, indicating little to no pain at all, even though she had suffered another fall unrelated to the initial one at issue here. Despite having been advised to attend physical therapy, as of February 28, 2011, Bellaiche had not done so. Three years after Dr. Remia treated Bellaiche, in May 2014, Bellaiche went to Dr. Gus Leotta, III, who noted that Bellaiche had a constrained range of motion and was hurting. However, Bellaiche did not show up to the CT scan and second visit that Dr. Leotta scheduled for her, and she never went back to Dr. Leotta. Dr. Leotta could not determine whether Bellaiche's increased pain was due to her subsequent fall or her fall at Publix.

After the conclusion of trial, which was conducted more than five years after Bellaiche's fall, the jury returned a verdict for Bellaiche and awarded her over $1.5 million in damages, accounting for Bellaiche's past medical expenses leading up to trial ($60,356.22), non-economic damages from the date of her accident to the end of trial ($500,000), and future pain and suffering ($1,000,000). Bellaiche's future life expectancy at the time was 12.9 years. After trial, Publix filed post-trial motions for a directed verdict, new trial, and remittitur, all of which the trial court denied.

The standard of review for a denial of a directed verdict is de novo, and the court must look at all evidence in a light most favorable to the non-movant. Marriott Int'l, Inc. v. Am. Bridge Bah., Ltd., 193 So.3d 902, 905 (Fla. 3d DCA 2015). The standard of review for both denial of a motion for new trial and a motion for remittitur is abuse of discretion. Maggolc, Inc. v. Roberson, 116 So.3d 556, 558 (Fla. 3d DCA 2013) ; Montesinos v. Zapata, 43 So.3d 97, 98 (Fla. 3d DCA 2010).

On appeal, Publix claims that the trial court erred in denying its motion for directed verdict because sufficient evidence did not exist demonstrating that Publix had actual knowledge of the dangerous condition that prompted Bellaiche's fall or that one of its employees caused the condition that resulted in the fall. In deciding how to rule on a motion for directed verdict, the court must determine if any reasonable evidence exists to support a jury verdict in favor of the non-movant. Tylinski v. Klein Auto. Inc., 90 So.3d 870, 873 (Fla. 3d DCA 2012).

Pursuant to section 768.0755, Florida Statutes, Bellaiche was required to prove that Publix had actual or constructive knowledge of a dangerous condition created by a transient foreign substance that caused Bellaiche to slip and fall. Encarnacion v. Lifemark Hosps. of Fla., 211 So.3d 275 (Fla. 3d DCA 2017) ; § 768.0755, Fla. Stat. (2010). However, at trial, in her response to Publix's motion for directed verdict, and during closing, Bellaiche stated that she was not proceeding under a theory of constructive knowledge of the dangerous condition, but under a theory of actual knowledge because she alleged "the man standing with the mop" caused the water to be on the floor in aisle 17. However, her testimony was that, after she fell, she saw a man holding a mop and that he was standing there, nothing more. A jury may not stack inferences to determine that a party had actual knowledge of a dangerous condition, nor is the mere possibility of causation sufficient to establish liability. Montgomery v. Fla. Jitney Jungle Stores, Inc., 281 So.2d 302, 305-06 (Fla. 1973) ; 50 State Sec. Serv. Inc. v. Giangrandi, 132 So.3d 1128, 1149 (Fla 3d DCA 2013). If the only way that a jury can find that a party was negligent is by stacking inferences, "then a directed verdict is warranted." Sanders v. ERP Operating Ltd. P'ship, 157 So.3d 273, 277 (Fla. 2015).

Here, there is no evidence that Publix had actual notice of the dangerous condition, presumably water on the floor based on her testimony that her pants were wet. The only evidence that Bellaiche presents to support her position that Publix had actual knowledge is that she saw a man holding a mop standing in front of her after falling. However, video evidence clearly demonstrates that the only janitor on duty at the time had been not been using anything other than a broom and dustpan to clean, leading up to the exact moment at which Bellaiche fell. Not one person testified that the mop that this man was holding was wet. The Publix store manager testified that his store uses dry rayon mops to spot mot its floors, not pre-soaked cotton mops. At best, a reasonable jury could only arrive at a verdict for Bellaiche by stacking inferences drawn from the purely circumstantial evidence presented, which it cannot do. Montgomery, 281 So.2d at 305-06 ; 50 State Sec. Serv. Inc., 132 So.3d at 1149. Thus, based on the evidence presented, a reasonable jury could not have found that Publix had actual knowledge of the water that caused Bellaiche to slip and fall. The trial court thus erred in denying Publix's motion for a directed verdict.

We reverse the trial court's denial of Publix's motions for a directed verdict and remand to the trial court with instructions to enter judgment in Publix's favor. Because we are reversing the trial court's decision to deny Publix's post-trial motion for a directed verdict, we need not address Publix's post-trial motion for a new trial or motion for remittitur.

Reversed and remanded with instructions.


text:
    Roderick ELLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2057
    District Court of Appeal of Florida, Third District.
    Opinion filed March 21, 2018
    Roderick Ellis, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, FERNANDEZ, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Jordan v. State, 190 So.3d 78 (Fla. 3d DCA 2015) ; Maxwell v. State, 69 So.3d 1122, 1123 (Fla. 3d DCA 2011) ("The Florida Supreme Court's decision in State v. Montgomery, 39 So.3d 252 (Fla. 2010) was rendered well after Maxwell's convictions and sentences were final, and it is not retroactively applicable.").


text:
    Joseph I. DUCHMAN, Appellant, v. Rener Da CUNHA, et al., Appellees.
    Nos. 3D17-1356 3D17-1005
    District Court of Appeal of Florida, Third District.
    Opinion filed April 4, 2018. Rehearing Denied May 22, 2018
    The Bernstein Law Firm, Jason B. Pear and Michael I. Bernstein ; Therrel Baisden, P.A., and Jonathan Feuerman, for appellant.
    Boldt Law Firm, P.A., Mario R. Giommoni and Kimberly L. Boldt (Boca Raton); Hoffman & Hoffman, P.A., Teresa Abood Hoffman, Sean C. Langton, Maggie A. Brito, and John D. Hoffman ; Dorot & Bensimon, P.L., and Datan Dorot, for appellees.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See Dows v. Nike, Inc., 846 So.2d 595, 602 (Fla. 4th DCA 2003) (holding: "Settlement agreements are not considered final when the record establishes the parties' intent to take further action prior to the completion of a binding agreement. Where essential terms of an agreement remain open, and subject to future negotiation, there can be no enforceable contract.") (citing Williams v. Ingram, 605 So.2d 890, 893 (Fla. 1st DCA 1992) and Suggs v. Defranco's, Inc., 626 So.2d 1100, 1101 (Fla. 1st DCA 1993) ).


text:
    Katherine RADOSEVICH, Appellant, v. The BANK OF NEW YORK MELLON, Appellee.
    No. 3D16-1880
    District Court of Appeal of Florida, Third District.
    Opinion filed April 4, 2018
    Legal Save, and Jeffrey H. Papell, for appellant.
    McGlinchey Stafford, PLLC, and Karin L. Posser, N. Mark New, II and William L. Grimsley (Jacksonville), for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   EMAS, J.

INTRODUCTION

Katherine Radosevich appeals from the trial court's order denying her motion for trial-level attorney's fees as the "prevailing party" in the mortgage foreclosure action below. For the reasons that follow, we reverse and remand for the trial court to conduct a further hearing, as may be appropriate, to determine whether Radosevich remains entitled to an award of attorney's fees as the prevailing party.

FACTS AND BACKGROUND

On June 25, 2009, the Bank of New York Mellon, etc. ("BONY") filed a two-count complaint against Radosevich, seeking (1) to foreclose on a note and mortgage; and (2) to reclaim a lost note. Attached to the complaint was a copy of a unendorsed note, naming Countrywide Home Loans, Inc. as the lender. More than a year after the complaint was filed, BONY filed another copy of the original note, which this time contained an undated blank endorsement, along with an assignment dated July 21, 2009, but with an effective date of May 19, 2009.

The case proceeded to non-jury trial on May 7, 2013. The court denied BONY's request to admit the loan payment history, based upon a determination that BONY's witness was not credible. After BONY rested its case, counsel for Radosevich moved for involuntary dismissal, arguing there were discrepancies in the copy of the note filed with the complaint and the later-filed copy of the note, and that the mortgage assignment was dated after the complaint was filed. The trial court granted the motion, and entered an order of dismissal. The court later denied BONY's motion for reconsideration or new trial, and BONY appealed the dismissal order to this court (Case No. 3D13-2280).

In the meantime, Radosevich moved for trial court attorney's fees and costs as the prevailing party, pursuant to section 57.105(7), Florida Statutes and a prevailing party provision in the note and mortgage. While the appeal of the dismissal order was still pending, an agreed order was entered below on Radosevich's motion for trial court attorney's fees and costs, which stated:

1. Defendant's Amended Motion for Attorney's Fees and Costs is GRANTED as to entitlement pending the outcome of the appeal.
2. The parties are in agreement that no hearing regarding the amount of attorney's fees shall be heard until the appeal has been resolved.

Following the completion of briefing in the appeal of the dismissal order, BONY filed a notice of voluntary dismissal, which was recognized by this court. Thereafter, this court, in an unelaborated order, denied Radosevich's motion for appellate fees and costs.

Back in the trial court, Radosevich sought a hearing to determine the reasonable amount of trial-level attorney's fees she should be awarded, pursuant to the court's earlier order granting entitlement. BONY objected, and the trial court held a non-evidentiary hearing on the issue. At the hearing, BONY argued that Radosevich's entitlement to fees and costs had not yet been established because the trial court's prior order granted entitlement "pending the outcome of the appeal," and, because the appeal had been voluntarily dismissed due to a short sale, neither party was a "prevailing party" entitled to an award of fees and costs.

The trial court denied Radosevich's entitlement to fees and costs, determining that "the clear and unambiguous language in the Entitlement Order ... requires the Court to consider and make a determination as to the outcome of the Appeal," and thus, under the case of Kelly v. BankUnited FSB, 159 So.3d 403 (Fla. 4th DCA 2015), "the outcome of the Appeal was a voluntary dismissal of the Appeal by Plaintiff after the closing of a short sale," and "Papell is not entitled to an award of trial court attorney's fees and costs." This appeal followed.

ANALYSIS

We generally review an order on a motion for attorney's fees for an abuse of discretion. Lopez v. Dep't of Rev., 201 So.3d 119 (Fla. 3d DCA 2015). However, "[w]here entitlement rests on the interpretation of a statute or contract, our review is de novo." Raza v. Deutsche Bank Nat. Trust Co., 100 So.3d 121, 123 (Fla. 2d DCA 2012). See also, Kelly, 159 So.3d at 405.

Radosevich argues on appeal that the trial court erred in determining she was not the prevailing party in the trial court because she did prevail below and nothing that happened on appeal, including BONY's voluntary dismissal of its appeal, altered her status as prevailing party below.

In Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807, 810 (Fla. 1992), the Florida Supreme Court held that "the fairest test to determine who is the prevailing party is to allow the trial judge to determine from the record which party has in fact prevailed on the significant issues tried before the court."

In the case before us, the trial court, relying on Kelly, 159 So.3d at 407, determined that Radosevich was not entitled to an award of fees and costs because, despite its voluntary dismissal of the appeal, "[BONY] received considerable proceeds in exchange for the satisfaction of the underlying mortgage and note and Radosevich lost her home and received no proceeds from the sale."

In Kelly, our sister court considered a case which similarly involved a foreclosure, final judgment, an appeal, and a subsequent voluntary dismissal by the bank following a short sale. In that case, the Fourth District held that the trial court did not abuse its discretion in determining that the property owner was not entitled to attorney's fees under section 57.105(7) because, under the "unique circumstances" of the case, "neither party substantially prevailed." Id. at 404.

As the trial court acknowledged in its order denying Radosevich's entitlement, there are some procedural differences between this case and Kelly: for example, in Kelly, unlike here, the bank prevailed below (and obtained a final judgment) in the trial court, and following the short sale, voluntarily dismissed the lower court case (not the appeal); further, in Kelly there was no entitlement order entered by the trial court prior to the bank's voluntary dismissal. By contrast, in our case, Radosevich was the prevailing party below, and the trial court had already entered an entitlement order while BONY's appeal of the involuntary dismissal order was pending on appeal.

However, we cannot ignore the point made by BONY that, regardless of Radosevich's status as the prevailing party below, post-judgment actions or events arguably altered that status, permitting the trial court to determine whether such actions or events require reconsideration of its interlocutory entitlement order and Radosevich's status as the prevailing party. As the Florida Supreme Court held in Moritz, 604 So.2d at 810, the party that prevailed for purposes of entitlement to attorney's fees is "the party prevailing on the significant issues in the litigation." Thus, where litigation ultimately ends in a proverbial "tie," with each party prevailing in part and losing in part on the significant issues in the litigation, a trial court may properly determine that neither party has prevailed for purposes of entitlement to attorney's fees. Loy v. Loy, 904 So.2d 482, 484 (Fla. 3d DCA 2005). And while we acknowledge the general rule that "when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party," Thornber v. City of Fort Walton Beach, 568 So.2d 914, 919 (Fla. 1990), a court may, under appropriate circumstances, look beyond a voluntary dismissal and consider other facts of the litigation in determining whether a party is the prevailing party for purposes of entitlement to attorney's fees. Padow v. Knollwood Club Ass'n, Inc., 839 So.2d 744, 745 (Fla. 4th DCA 2003). Courts should "look to the substance of litigation outcomes-not just procedural maneuvers-in determining the issue of which party has prevailed in an action." Tubbs v. Mechanik Nuccio Hearne & Wester, P.A., 125 So.3d 1034, 1041 (Fla. 2d DCA 2013). In the instant case, the trial court was permitted to consider whether, upon return of this cause to the trial court following BONY's voluntary dismissal of its appeal, Radosevich remained the prevailing party at the trial level, such that she was still entitled to an award of attorney's fees.

Nonetheless, while we hold that the trial court had the authority to reconsider its earlier entitlement order, and to consider whether actions and events occurring during the pendency of the prior appeal affected that earlier determination, the fact remains that the court must make such a determination based upon the record before it, Moritz, 604 So.2d at 810, and in this case, the record was simply inadequate for the trial court to make such a determination. In reaching its conclusion that Radosevich was no longer a prevailing party, the trial court relied upon the "fact" that a short sale took place on the foreclosed property. However, the trial court took no testimony and received no evidence regarding the existence, terms or effect of a purported short sale. Mere representations and argument of counsel do not constitute evidence. Geralds v. State, 111 So.3d 778, 795 n.16 (Fla. 2010) (quoting Collins Fruit Co. v. Giglio, 184 So.2d 447, 449 (Fla. 2d DCA 1966) ) (noting "it is axiomatic that the arguments of counsel are not evidence."); State v. T.A., 528 So.2d 974 (Fla. 2d DCA 1988).

CONCLUSION

We reverse and remand for the trial court to conduct a further hearing, as may be appropriate, to determine whether Radosevich remains entitled to an award of attorney's fees as the prevailing party, and for further proceedings consistent with this opinion.

      Radosevich was represented throughout the foreclosure proceedings below, and on appeal, by attorney Jeffrey H. Papell, with whom she had entered into a representation agreement. That agreement provided that Papell's firm "may seek attorney's fees from Plaintiff under applicable law should Client prevail or the case is dismissed." Under the terms of this agreement, Radosevich also confirmed that she had "been told and agree that I cannot waive, settle, resolve, assign or otherwise transfer or dispose of the Firms' claim for attorney's fees and costs and that I have assigned and transferred to [the Firm] any right I may have to recover unpaid attorney's fees and costs."

      Section 57.105(7) provides: "If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract." Thus, "[t]he statute makes a unilateral contract clause for attorney's fees bilateral in effect." Mihalyi v. LaSalle Bank, N.A., 162 So.3d 113, 115 (Fla. 4th DCA 2014). It is undisputed in this case that the mortgage contract provided for an award of attorney's fees to BONY in the event it prevailed in a foreclosure action against Radosevich. Thus, pursuant to section 57.105(7), Radosevich would also be entitled to her attorney's fees in the event that she is determined to be the prevailing party.

      There are no settlement or other supporting documents in the record before us, and according to Papell, if any such settlement occurred, it was done without any notice to Papell. In its notice of voluntary dismissal, BONY represented that it had approved a short sale of Radosevich's property.

      We disagree with Radosevich that the trial court was without jurisdiction to reconsider its earlier order determining entitlement to fees. The entitlement order was an interlocutory order, determining only entitlement, and not the amount of reasonable fees to be awarded, and thus, the trial court had jurisdiction to reconsider, and alter, its earlier order. See Mills v. Martinez, 909 So.2d 340 (Fla. 5th DCA 2005).