Land Use and Local Government Law and Litigation

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Very Important Decision on Initiating Certiorari Review

A must read for all land use litigators:

In Concerned Citizens of Bayshore et al v. Lee County & US Homes, et al, here's the opinion, the 2d DCA did us all a favor by clarifying a few key issues in initiating certiorari review.

Concerned Citizens filed a cert petition challenging a rezoning granted to US Homes, but did not name US Homes as a party (in the caption) or serve them within 30 days. US Homes moved to dismiss for failure to name an indispensable party and the trial court granted the motion, even though petitioners were willing to amend to name US Homes, and had served them by mail.

WRONG. Under a number of cases (cited in the opinion), the landowner is not an indispensable party, as the opinion correctly points out.

But the opinion went beyond that and held that R Civ P 1.630 governs the caption, parties and service of a common law cert petition, not R. App P. 9.100 (b) -- which as near as I can tell was a case and opinion of first impression, even though the rules have been around for a long time. Under that rule, you file your writ (and record), and if the petition sets forth a prima facie case, the court enters a "summons," which then must be served as provided by R. Civ. P. 1.080 (b) (the general service by mail, hand, fax rule - rather than the service of process rule). The comment to R. 1.630 indicates that if the record isn't available, the petitioner may request additional time to file it - a position held in case law under the appellate rules, but not explicit.

One reason this is important is that R. App. P. 9.100 (b) provided that all parties to an action below are to be named as respondents; this created the petard on which the court hoisted Citizens in the action below.

But the court went even further and noted that R. App. P. 9.100 (f) does apply and that US Homes was a party respondent under R App. P. 1.020 (g)(4), and therefore entitled to participate with or without service by Citizens. NOTE: this implies that anyone who participates in a quasi-judicial hearing and establishes a record basis for standing (common law/special injury or by local ordinance) can pile into a cert case as a respondent - even if they're actually supporting the petitioner, and be a party regardless of the caption and initial service.
The opinion does leave a couple of critical holes: first, whether cert petitions, responses and replies are governed for length, format, etc. by F R App P 9.100 f-l; for example, is the "record" that must be transmitted according to R Civ P 1.630 an "appendix" as required by R. App. P. 9.100(g)? So we still have a ways to go before all of the kinks are worked out.
I've been very frustrated by a number of PCA/PCD opinions from the 2d that dodged important issues and was afraid that the court was going to do that in this case as well (I know all of the private party litigators in this one, so knew about the case). So, thanks to the panel and the court for issuing an opinion that clarifies and simplifies what had emerged as a bit of a trap for petitioners in this area. It's a MUST READ.

Just for fun, here's the text of the appliable rules:

(a) Applicability. This rule applies to actions for the issuance of writs of mandamus, prohibition, quo warranto, certiorari, and habeas corpus.

(b) Initial Pleading. The initial pleading shall be a complaint. It shall contain:
(1) the facts on which the plaintiff relies for relief;
(2) a request for the relief sought; and
(3) if desired, argument in support of the petition with citations of authority.

The caption shall show the action filed in the name of the plaintiff in all cases and not on the relation of the state. When the complaint seeks a writ directed to a lower court or to a governmental or administrative agency, a copy of as much of the record as is necessary to support the plaintiff’s complaint shall be attached.

(c) Time. A complaint shall be filed within the time provided by law, except that a complaint for common law certiorari shall be filed within 30 days of rendition of the matter sought to be reviewed.

(d) Process. If the complaint shows a prima facie case for relief, the court shall issue:
(1) a summons in certiorari;
(2) an order nisi in prohibition;
(3) an alternative writ in mandamus that may incorporate the complaint by reference only;
(4) a writ of quo warranto; or
(5) a writ of habeas corpus.

The writ shall be served in the manner prescribed by law, except the summons in certiorari shall be served as provided in rule 1.080(b).

(e) Response. Defendant shall respond to the writ as provided in rule 1.140, but the answer in quo warranto shall show better title to the office when the writ seeks an adjudication of the right to an office held by the defendant.

Court Commentary
1984 Amendment. Rule 1.630 replaces rules and statutes used before 1980 when the present Florida Rules of Appellate Procedure were adopted. Experience has shown that rule 9.100 is not designed for use in trial court. The times for proceeding, the methods of proceeding, and the general nature of the procedure is appellate and presumes that the proceeding is basically an appellate proceeding. When the extraordinary remedies are sought in the trial court, these items do not usually exist and thus the rule is difficult to apply. The uniform procedure concept of rule 9.100 has been retained with changes making the procedure fit trial court procedure. The requirement of attaching a copy of the record in subdivision (b) may not be possible within the time allowed for the initial pleading because of the unavailability of the record. In that event the plaintiff should file a motion to extend the time to allow the preparation of the record and supply it when prepared. The filing of a motion to extend the time should be sufficient to extend it until the motion can be decided by the court.

(a) Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.
(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service on the attorney or party shall be made by delivering a copy or mailing it to the attorney or the party at the last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail shall be complete upon mailing. Delivery of a copy within this rule shall be complete upon: (1) handing it to the attorney or to the party, (2) leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof, (3) if there is no one in charge, leaving it in a conspicuous place therein, (4) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or (5) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy shall also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete. Service by delivery after 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.

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