CITY OF MIAMI, PETITIONER, RESPONDENTS.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC CITY OF MIAMI, PETITIONER, VS. FAMILY RESOURCE CENTER OF DADE COUNTY, ET AL., RESPONDENTS. BRIEF ON JURISDICTION OF CITY OF MIAMI ON DISCRETIONARY REVIEW FROM THE THIRD DISTRICT COURT OF APPEAL LAW OFFICE OF ROBERT S. GLAZIER 540 BRICKELL KEY DRIVE SUITE C-1 MIAMI, FL ALEJANDRO VILARELLO CITY ATTORNEY MARIA J. SANTOVENIA ASSISTANT CITY ATTORNEY 945 MIAMI RIVERSIDE CENTER 444 S.W. 2ND AVENUE MIAMI, FL TABLE OF CONTENTS

2 Table of Authorities... iii Statement of the Case and Facts... 1 Summary of the Argument... 4 Argument... 5 THE DECISION OF THE DISTRICT COURT EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF OTHER DISTRICTS ON THE STANDARD FOR STRIKING PLEADINGS AS A SHAM Conclusion... 7 Certificate of Service and Compliance... 8 II

3 TABLE OF AUTHORITIES Decker v. County of Volusia, 698 So. 2d 650 (Fla. 5th DCA 1997)... 5 Destiny Construction Co. v. Martin K. Eby Construction, 662 So. 2d 388 (Fla. 5th DCA 1995)... 5 Kimball v. Florida Department of Health and Rehabilitative Services, 682 So. 2d 637 (Fla. 2d DCA 1996) Other authorities cited C i t y o f M i a m i C o d e III

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5 STATEMENT OF THE CASE AND FACTS This case involves a trial court s order striking a pleading as a sham. THE MORTGAGE AND THE CITY S SUIT ON THE MORTGAGE In 1988 The City of Miami lent money to the Urban League of Greater Miami. City of Miami v. Urban League, 849 So. 2d 1095, 1096 (Fla. 3d DCA 2003). In return, the Urban League executed a mortgage secured by four parcels of land. Id. The Urban League later conveyed one of the parcels, and the parcel was subsequently reconveyed to the Family Resource Center of South Florida (FRC). Id. On April 24, 2002, the City filed suit, seeking to foreclose on the parcels. Id. At There were a number of defendants, including Family Resource Center. The City also recorded a lis pendens on each of the four parcels. Id. On April 29, 2002, FRC was served with the complaint. Id. The next day it contacted the City and said that in 1995 the City had executed and delivered a Release of Lien, and that this document released the mortgage on the parcel in question. The release of lien had been publicly recorded. Id. On May 1, 2002, the City told FRC that the Release of Lien did not appear in the title search report it had conducted before filing the foreclosure action. Id. The City also raised concerns regarding the apparent lack of consideration for the 1

6 release and the apparent lack of authority for execution of the release by the then city manager and stated that the documents that were forwarded did not fully address or allay those concerns. Id. The City said that based on the available documentation, we are not in a position to conclude that the release of lien document is anything other than an ultra vires act by the then city manager. Id. FRC S MOTION TO STRIKE AS SHAM On May 22, 2002, FRC filed a verified emergency motion to strike as sham the allegations in the City's complaint regarding the parcel in question. Id. FRC argued that it needed to move forward immediately with the development of the property and that it should be permitted to do so because of the Release of Lien. Id. On May 23, 2002, FRC faxed a notice of hearing to the Assistant City Attorney stating that a hearing on the motion to strike was set for May 24, Id. At the hearing, the City argued that the release of lien was the result of an ultra vires act by the then City Manager without the City Commission s authority. Id. At When asked for an ordinance or other evidence showing that the then City Manager did not have the authority to enter into this type of release, the Assistant City Attorney stated that she did not have sufficient notice to brief the matter. Id. 2

7 The trial court found that City was on notice of the hearing, that it did not bring any evidence to controvert FRC s motion, and that immediate action was necessary to preserve FRC's funding. Id. The trial court granted FRC s motion to strike the allegations in the complaint relating to Parcel IV and dissolved the City s lis pendens on Parcel IV. Id. THE DISTRICT COURT OPINION The district court affirmed the trial court s striking of the City s pleading as a sham. According to the district court, the City failed to rebut FRC s evidence when it failed to present any evidence of a charter or code provision or administrative order that prohibited the city manager from executing the release of lien. Therefore, because the uncontroverted evidence established that the City had released its lien, the trial court properly struck the allegations of the complaint concerning Parcel IV and dissolved the corresponding lis pendens. Id. at

8 SUMMARY OF THE ARGUMENT The opinion of the district court conflicts with the opinions of other district courts. The Third District has held that a party may have pleadings stricken as sham where even where there is a dispute on whether the pleading is undoubtedly false. This is in conflict with the decisions of other districts. 4

9 ARGUMENT THE DECISION OF THE DISTRICT COURT EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF OTHER DISTRICTS ON THE STANDARD FOR STRIKING PLEADINGS AS A SHAM The opinion of the district court establishes a standard for striking a pleading as sham which is contrary to the law of other district courts of appeal. Cases from other districts make clear such a pleading may be stricken as sham only where the falsity of the pleading clearly and undisputedly appears, and the pleading is shown to be palpably and inherently false. Where there is doubt, where the issue is unresolved, it is improper to strike a pleading as a sham. This is the holding of countless cases. As one district explained, a pleading is considered a sham only when it is inherently false and based on plain or conceded facts, clearly known to be false at the time the pleading was made. Furthermore, in deciding whether the strike a pleading as a sham the trial court must resolve all doubts in favor of the pleading. Decker v. County of Volusia, 698 So. 2d 650, 651 (Fla. 5th DCA 1997) (citing Destiny Construction Co. v. Martin K. Eby Construction, 662 So. 2d 388, 390 (Fla. 5th DCA 1995)). Similarly, another district court held that a motion to dismiss as a sham should not be granted unless the pleading is so undoubtedly false as not to be the subject of a genuine issue of fact. Kimball v. Florida Department of Health and Rehabilitative Services, 682 5

10 So. 2d 637, 639 (Fla. 2d DCA 1996). A hearing on a motion to strike as a sham is not a hearing to try the issues and should not be granted because of inartful pleadings or correctable omissions. Id. With the opinion under review, there is now a conflict among the districts. In the other districts, pleadings may be stricken as a sham only where there is no doubt, only where the movant shows that the pleading is undoubtedly false. In the Third District, now, pleadings may be stricken even though the non-movant identifies a fact in dispute. Here, the City while not disputing that there existed a release of lien contended that the release was un authorized ultra vires act, and therefore not binding on the City. FRC, as movant, did nothing to respond to this. Despite the failure of FRC to demonstrate that the pleading was undoubtedly false, the trial court struck the pleading as a sham, and the district court upheld this. 1 1 In the trial court, we argued that FRC had failed to carry its burden of rebutting the ulta vires argument. In district court, we noted that the FRC s failure to rebut the ultra vire argument was understandable. We then cited to the court the City ordinance which we submit required city commission approval for approval of the release of lien. The section of the Code, entitled Resolution of Contract Disputes, provides: The city manager, after obtaining the approval of the city attorney, shall have the authority to resolve the controversies between the contractual party and the city which shall arise under, or by virtue of, a contract between them; provided that, in cases involving an amount greater than $4,500.00, the city commission must approve the city manager s decision. Such authority extends, without limitation, to controversies based upon breach of contract, 6

11 The Third District s holding expressly and directly conflicts with cases of other districts, and this Court should exercise its discretion. CONCLUSION Appellant the City of Miami respectfully requests that the Court grant discretionary review and reverse the decision of the Third District. Respectfully submitted, ALEJANDRO VILARELLO City Attorney MARIA J. SANTOVENIA Assistant City Attorney 945 Miami Riverside Center 444 S.W. 2nd Avenue Miami, FL CandC LAW OFFICE OF ROBERT S. GLAZIER 540 Brickell Key Drive Suite C-1 Miami, FL (305) mistake, misrepresentation or lack of complete performance, and shall be invoked by a contractual party by submission of a protest to the city manager. City of Miami Code Section By: Robert S. Glazier 7

12 Florida Bar No CERTIFICATE OF SERVICE AND COMPLIANCE WE HEREBY CERTIFY that a true and correct copy of the foregoing was sent by U.S. Mail this 2nd day of September, 2003, to Emily M. Usow, Esq., Adorno & Yoss, P.A., 2601 South Bayshore Drive, Suite 1600, Miami, FL 33133; Alan G. Kipnis, Esq., Kipnis, Tescher, Lippman, et al., 100 N.E. 3rd Avenue, Suite 610, Ft. Lauderdale, FL ; Lynn Washington, Esq., Holland & Knight, 701 Brickell Avenue, Suite 3000, Miami, FL ; Rashmi H. Airan, Assistant County Attorney, Miami-Dade County, 111 N.W. 1st Street, Suite 2800, Miami, FL ; and Jill Nexon Berman, Esq., Berman, Rennert, Vogel & Mandler, P.A., 100 S.E. 2nd Street, Suite 3500, Miami, FL We also certify that this brief has been submitted in Times New Roman 14- point font and satisfies the requirements of the Rules of Appellate Procedure. 8