Land Use and Local Government Law and Litigation

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More thoughts on filing cert and Concerned Citizens

A couple of months ago, I reported on Concerned Citizens of Bayshore et al v. Lee County & US Homes, et al, here's the opinion, where the 2d DCA held that R Civ P 1.630 governs the filing of cert petitions to attack local quasi-judicial decisions, rather than the Appellate Rules.

Well, I've had a number of discussions with various folks since then, and I'm pretty well convinced that we're stuck with a well meaning but wrong decision that's going to have some serious negative consequences if not legislatively or otherwise overturned.

Note that that parties involved have worked the issue out on remand and an answer is going to be filed presently. Given the way the opinion came out, neither side had any particular reason to ask for rehearing or clarification, or to suggest to the court that it could get to the right result through a different analysis.

Here's the operative language:

This extraordinary proceeding is governed by Florida Rule of Civil
Procedure 1.630. See also Fla. R. App. P. 9.100(f). The only provision in rule
1.630 which addresses the issue of parties to an action is in subsection
(b)(3), which states, "[t]he caption shall show the action filed in the name
of the plaintiff in all cases." There is no such language regarding the
naming of a defendant. Thus, the fact that the petition did not name US Home as
a defendant in the action did not subject the petition to dismissal.
Weirdly enough, the court recognized the fact that the appellate rules got to the same result in the following footnote:

We note that although rule 1.630 is specifically designed to address matters
unique to an appellate proceeding at the trial court level, its provisions
are not inconsistent with the appellate rules which, even if applicable,
would have afforded US Home no relief. Florida Rule of Appellate Procedure
9.020(g)(4) defines a "respondent" as "[e]very other party in a proceeding
brought by a petitioner." By participating in the proceeding before the BOCC,
US Home automatically became a respondent in the action seeking review of
that decision in the circuit court. See Millar Elevator Serv. Co. v. McGowan,
804 So. 2d 1271 (Fla. 2d DCA 2002) (holding that the substance of the caption
in a notice of appeal is not dispositive of the parties on appeal; all parties aligned in the trial court with an appealing party automatically become appellees if they are not named in the notice of appeal); Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. v. Mullin, 602 So. 2d 956 (Fla. 3d DCA 1992) (holding that a party who appears in a proceeding before a subordinate tribunal is a party for purposes of review of that order). Thus, while US Home was a party because it appeared and
participated in the proceeding before the BOCC, the fact that it was not named as a respondent in the petition did not subject the petition to dismissal for failure to join an indispensable party.

In any case, here's how it works now:

1. QJ decision is rendered, 30 day clock runs.
Note that the rule doesn't name rendition of the order, and we don't know if the appellate rules' definition applies. So is it 30 days from the action, or the filing of the signed resolution/ordinance/order with the clerk? We don't know.

2. Petition for cert is filed within 30 days. The Petition need only include the facts relied on, a request for relief, and argument, "if desired." A "copy of as much of the record as is necessary to support the plaintiff’s complaint shall be attached"
Note -- 1st, the record here is not an appendix, as defined by the appellate rules. that means, in turn, that you may not be able to supplement it or deal with it as under the appellate rules. 2d, what happens if the record isn't ready or available? decisions interpreting the appellate rules make it clear that the court should allow the petitioner to amend the petition to include citations to portions of the record that are unavailable, or to amend or supplement the appendix if necessary. But we are in uncharted territory under r 1.630.

Note that the circuit court did a "see also r app p 1.190(f)" -- but gave no guidance on how to read these together - and they're so inconsistent as to be unreconcilable.

3. The court examines the petition (someday), and if it demonstrates a prima facie case (?? what does this mean in cert -- just that the decision is quasi-judicial and standing is apparent?) the court issues a summons. The summons is then served by mail or service under R C P 1.080(b) - the rule for serving motions, etc.

But what does this mean? Is the court going to send the summons to the petitioner, who then sends it along with the petition and appendix to the respondent? If the petitioner gets the summons, how long does the petitioner have to serve it? Is the court to send the summons to the respondent directly? If so, who serves the actual petition on the respondent?

In the case of the other writs, which are not limited to record based review and will trigger a hearing, these issues are a bit less problematic.

4. The respondent then must answer in accordance with rule 1.140. Presumably, that means within 20 days of service. but what does teh answer contain? does it have to have numbered paragraphs under r 1.110(f)? does it have to address every paragraph or claim? Can the respondent implead others at this point? Can the defendant file a 1.140 (d) motion to dismiss before answering? does doing so toll the time to file the answer.

5. THEN, who knows? That's all rule 1.630 provides. Presumably you're then just setting a hearing. the Petitioner wouldn't get a Reply.

Could there be motion practice?

In the context of cert review, this simply makes no sense. Not only are the appellate rules better suited to handling the process, they also, legally govern over this mess.

FYI, there's a rule of Judicial Administration that provides that in the case of a conflict between the appellate rules and the rules of civil procedure, the appellate rules govern.

Then we get the appellate rules' explicit delineation of circuit court authority over these cases. You get R App P. 9.030(b) and (c) which describe the cert jurisdiction of the circuit courts to include review of local adminisstrative decisions, and r. 9.100(c), which clearly identifies a 30 day time limit to cert petitions filed to review quasi-judicial decisions of local government boards and commissions. rule 9.100(f) specifically governs the content of the petitions, response, reply, etc., including page limits, formatting, etc. Many of these provisions conflict with the operation of r civ p 1.630.

So it's a mess. It happened because a judge in Lee County bought a stupid argument from a landowner/applicant that a) the landowner was an indispensible party and b) the 30 day limit for filing couldn't be adapted to allow amendment and service of the petition on the landowner after that time.

Let's hope that we get some relief. In the meantime, I'm going to file my cert petitions with an appendix (which satisfies both rules), meet the length and formatting requirements of 9.100(f), demand the right to file a reply, and see what happens.

I'd love to hear from other folks on what they're strategies are going to be.

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