IN THE SUPREME COURT OF FLORIDA CASE NO. Second District Court of Appeal Case No. 2D10-332

IN THE SUPREME COURT OF FLORIDA CASE NO. Second District Court of Appeal Case No. 2D10-332 CITY OF TAMPA, FLORIDA, a Florida Municipal Corporation, Petitioner, vs. CITY NATIONAL BANK OF FLORIDA, and CITIVEST CONSTRUCTION CORPORATION, Respondents. ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, SECOND DISTRICT PETITIONER S JURISDICTIONAL BRIEF CITY OF TAMPA, FLORIDA JAMES H. SHIMBERG, JR. CITY ATTORNEY Jerry M. Gewirtz Chief Assistant City Attorney Florida Bar No. 0843865 Melvia B. Green Assistant City Attorney Florida Bar No. 0272388 5 th Floor City Hall 315 E. Kennedy Blvd. Tampa, Florida 33602 Telephone: (813) 274-8996 Facsimile: (813) 274-8809

And John A. Schifino, Esquire Florida Bar No. 0072321 Allyson L. Lazzara, Esquire Florida Bar No. 0021808 Williams Schifino, Mangione & Steady One Tampa City Center 201 N. Franklin Street Tampa, FL 33601 Telephone: (813) 221-2626 Facsimile: (813) 221-7335 Attorneys for Petitioner, City of Tampa, Florida 2

TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 4 JURISDICTIONAL STATEMENT... 5 ARGUMENT... 5 I. THE SECOND DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH FLADELL V. PALM BEACH COUNTY CANVASSING BOARD, AND DECISIONS FROM OTHER DISTRICT COURTS OF APPEAL, WHICH HOLD THAT WHERE A DOCUMENT ATTACHED TO A COMPLAINT CONFLICTS WITH ALLEGATIONS MADE IN THE COMPLAINT, THE COMPLAINT MUST BE DISMISSED WITH PREJUDICE.... 5 II. THE DECISION OF THE SECOND DISTRICT - THAT RESPONDENTS COULD STATE AN EQUAL PROTECTION CLAIM UNDER THE RATIONAL BASIS TEST NOTWITHSTANDING THERE WAS AN APPELLATE JUDICIAL DETERMINATION OF COMPETENT AND SUBSTANTIAL EVIDENCE TO SUPPORT THE CITY S ACTION - IS IN EXPRESS AND DIRECT CONFLICT WITH DECISIONS FROM THIS COURT AND OTHER DISTRICT COURTS... 6 III. THE SECOND DISTRICT S DECISION IS IN EXPRESS AND DIRECT CONFLICT WITH PAEDAE V. ESCAMBIA COUNTY, STATE OF FLORIDA V. ROBINSON, AND JACQUES V. DEPT. OF BUSINESS AND PROFFESIONAL REGULATION... 8 CONCLUSION... 10 CERTIFICATE OF SERVICE... 12 CERTIFICATE OF COMPLIANCE... 12 i

TABLE OF CITATIONS Cases Appel v. Lexington Insurance Co., 29 So. 3d 377 (Fla. 5 th DCA 2010)...5,6 Bott v. City of Marathon, 949 So. 2d 295 (Fla. 3d DCA 2007)... 6 City of Tampa v. City Nat l Bank of Fla., 974 So. 2d 408 (Fla. 2d DCA 2007) rev. den. 973 So. 2d 1120 (Fla. 2007)... 1 Crist v. Ervin, 56 So. 3d 745, 747 (Fla. 2010)... 7 Eastern Air Lines, Inc. v. Dep t of Revenue, 455 So. 2d 311, 314 (Fla. 1984)... 7 FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993)... 7 Fladell v. Palm Beach County Canvassing Board, 772 So. 2d 1240, 1242 (Fla. 2000)...5, 6 Florida Power & Light Company v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000)... 8 Friedman v. New York Life Insurance Co., 985 So. 2d 56 (Fla. 4 th DCA 2008)... 6 Haire v. Fla. Dept. of Agriculture and Consumer Services, 870 So. 2d 774, 782 (Fla. 2004)... 7 Health Application Systems, Inc. v. Hartford Life and Accidental Insurance Co., 381 So. 2d 294 (Fla. 1 st DCA 1980)... 6 Jacques v. Dept. of Business and Professional Regulation, 15 So. 3d 793, 797 (Fla. 1 st DCA 2009)... 8, 9, 10 Kantner v. Martin County, 929 F. Supp. 1482, 1488 (S.D. Fla. 1996) aff d 142 F.3d 1283 (11 th Cir. 1998).. 9 ii

Lane v. Chiles, 698 So.2d 260, 262 (Fla. 1997)..... 7 Lucas v. Englewood Community Hospital, 963 So. 2d 894, 896 (Fla. 1 st DCA 2007)... 7 Paedae v. Escambia County, 709 So. 2d 575 (Fla. 1 st DCA 1998)... 3, 4, 8,9,10 Restigouche Inc. v. Town of Jupiter, 59 F.3d 1208, 1214 n.6 (11 th Cir. 1995)... 9 Shumrak v. Broken Sound Club, Inc., 898 So. 2d 1018 (Fla. 4 th DCA 2005)... 6 State of Florida v. Robinson, 873 So. 2d 1205, 1214 (Fla. 2004)... 8, 9, 10 Tiedmann v. Department of Management Services, 862 So. 2d 845, 846-847 (Fla. 4 th DCA 2003)... 7 Zurla v. City of Daytona Beach, 876 So. 2d 34, 35 (Fla. 5 th DCA 2004)... 7 Rules Rule 1.540(b)(2), Fla. R. Civ. P.... 6 Constitutional Provisions Art. V, 3(b)(3), Fla. Const.... 5 Statutes 42 U.S.C. 1983... 1, 2, 3, 4, 5, 8, 9, 10 iii

STATEMENT OF THE CASE AND FACTS Respondents, City National Bank of Florida and Citivest Construction Corporation (collectively property owners ), sued the petitioner, City of Tampa ( City ), after the City denied them a Certificate of Appropriateness ( COA ) for their construction of a proposed condominium development in a quasi-judicial proceeding. During the course of several amended complaints the property owners pursued the COA via a petition for writ of certiorari and sought damages for its denial through a 42 U.S.C. 1983 equal protection action. A common element to both the certiorari and 1983 action is whether the City s denial of the COA was based upon competent substantial evidence or a rational basis. Prior to their filing of their third amended complaint, the property owners pursued the COA via a petition for writ of certiorari before the circuit court sitting in its appellate capacity. The circuit court on first tier certiorari review concluded that although the City s denial of the COA was supported by competent substantial evidence (or a rational basis) and that the property owners had been afforded procedural due process, certiorari relief was nevertheless warranted because the City had departed from the essential requirements of law. The City sought secondtier certiorari review of the circuit court s conclusion but the Second District Court of Appeal approved the same in its entirety. City of Tampa v. City Nat l Bank of Fla., 974 So. 2d 408 (Fla. 2d DCA 2007) rev. den. 973 So. 2d 1120 (Fla. 2007). 1

The property owners never challenged or sought to vacate the certiorari order s additional conclusion that the City s denial of the COA were supported by competent and substantial evidence and that procedural due process had been afforded to them by the City. Rather, after the Second District s approval of the certiorari order, the property owners filed their third amended complaint for a 1983 equal protection action for damages against the City based upon its denial of the COA. Ironically, in support of this 1983 action, the property owners attached the certiorari order or judgment as an exhibit and incorporated its conclusions. In their third amended complaint, the property owners alleged, among other things, that their proposed project was singled out and treated differently from other similarly situated properties with no rational basis offered by the City thereby violating their equal protection rights. This critical allegation to their 1983 claim, however, was expressly contradicted or negated by the attached certiorari order s conclusion that the City s denial of the COA was supported by competent substantial evidence or a rational basis. In further support of their 1983 claim, the property owners also alleged that they were denied a fair and impartial hearing when the City denied the COA. This allegation, however, was also expressly contradicted and negated by the attached certiorari order s conclusion that the property owners had in fact received procedural due process in that they were provided reasonable notice and a fair opportunity to be heard by the City. 2

The trial court dismissed the property owners third amended complaint for failure to state a cause of action with prejudice. The property owners appealed to the Second District Court of Appeal. The Second District reversed the trial court s dismissal of the 1983 action based upon its holding, among other things, that the attached certiorari order s conclusion that competent substantial evidence supported the City s denial of the COA was insufficient to bar the 1983 equal protection claim where the property owners alleged newly discovered evidence. The Second District s opinion expressly and directly conflicts with decisions of this Court, and other district courts, holding that: (1) where an exhibit attached to the complaint directly conflicts with the allegations of the complaint, the variance is fatal and the complaint is subject to dismissal for failure to state a cause of action; and (2) a claim cannot be advanced under the rational basis test where it has previously been determined that there was a conceivable basis to support the City s action. In addition, the decision of the Second District is in conflict with Paedae v. Escambia County, 709 So.2d 575 (Fla. 1 st DCA 1998) where the court held that the interpretation of a zoning code, which resulted in the wrongful denial of a permit, does not give rise to a 1983 action. Finally, the decision below is in conflict with cases from this Court and the First District holding that in an equal protection challenge the rational basis test is the same, or essentially the same, as that utilized in a substantive due process challenge. 3

SUMMARY OF THE ARGUMENT The Second District s decision is in express and direct conflict with decisions of this Court and other district courts holding that a complaint shall be dismissed with prejudice where its allegations on a critical element to a 1983 action are expressly contradictory or negated by the certiorari order attached as an exhibit. The Second District s opinion further conflicts with the holding of this Court, and other district courts, that a claim under the rational basis test cannot pass muster where it has been judicially determined that there was a conceivable basis to support the government s action. Indeed, the Second District s decision is particularly egregious given that there was a prior appellate judicial determination, which is attached as an exhibit to the third amended complaint, that there was competent and substantial evidence to support the City s action and that the property owners were afforded procedural due process. In addition, the Second District s decision conflicts with the First District s holding in Paedae v. Escambia County that the wrongful interpretation of a zoning code does not give rise to a 1983 action. Finally, the Second District Court s opinion is in express and direct conflict with holdings of this Court and the First District that the rational basis test is the same, or essentially the same, in an equal protection challenge and substantive due process claim. These conflicts are deserving of and indeed compel this Honorable Court s intervention to maintain the uniformity of Florida law. 4

JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with decisions of the Florida Supreme Court and other district courts of appeal. Art. V, 3(b)(3), Fla. Const. ARGUMENT I. THE SECOND DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH FLADELL V. PALM BEACH COUNTY CANVASSING BOARD AND DECISIONS FROM OTHER DISTRICT COURTS WHICH HOLD THAT WHERE A DOCUMENT ATTACHED TO A COMPLAINT CONFLICTS WITH ALLEGATIONS MADE IN THE COMPLAINT, THE COMPLAINT MUST BE DISMISSED WITH PREJUDICE. The property owners cannot proceed with a 1983 equal protection action against the City based upon their essential allegations that the City had no rational basis for the denial of the COA where the certiorari order attached to the third amended complaint negates this allegation and concludes that the City s denial of the COA was based upon competent substantial evidence and that the property owners had been afforded procedural due process. In Fladell v. Palm Beach County Canvassing Board, 772 So. 2d 1240, 1242 (Fla. 2000), this Court affirmed the dismissal of a complaint with prejudice and held that if an exhibit facially negates the cause of action asserted, the document attached as an exhibit controls and must be considered in determining a motion to dismiss. Each of the other district courts of appeal have also expressly so held. Appel v. Lexington Insurance 5

Co., 29 So. 3d 377, 379-380 (Fla. 5 th DCA 2010); Friedman v. New York Life Ins. Co., 985 So. 2d 56, 59 (Fla. 4 th DCA 2008); Bott v. City of Marathon, 949 So. 2d 295, 296 (Fla. 3d DCA 2007); Shumrak v. Broken Sound Club, Inc., 898 So. 2d 1018, 1020 (Fla. 4 th DCA 2005); Health Application Systems, Inc. v. Hartford Life and Accidental Insurance Co., 381 So. 2d 294, 297 (Fla. 1 st DCA 1980). Contrary to the district court s holding, Fladell and its progeny creates no exception for newly discovered allegations. As this Court is well aware, a pleader s sole procedural mechanism for advancing newly discovered allegations in the aftermath of a judicial decree such as the certiorari order would have been by way of Rule 1.540(b)(2), Fla. R. Civ. P. The district court s holding is therefore inexplicable, unsupportable, and clearly undermines Fladell and its progeny. II. THE DECISION OF THE SECOND DISTRICT - THAT RESPONDENTS COULD STATE AN EQUAL PROTECTION CLAIM UNDER THE RATIONAL BASIS TEST NOTWITHSTANDING AN APPELLATE JUDICIAL DETERMINATION OF COMPETENT AND SUBSTANTIAL EVIDENCE TO SUPPORT THE CITY S ACTION - IS IN EXPRESS AND DIRECT CONFLICT WITH DECISIONS FROM THIS COURT AND OTHER DISTRICT COURTS. This Second District s opinion - which concludes that property owners can state an equal protection claim under the rational basis test notwithstanding that it was previously judicially determined in an appellate capacity that there was competent and substantial evidence to support the city council s decision - is in express and direct conflict with holdings of this Court and other district courts that a claim cannot pass muster under the rational basis test where it has been 6

determined that there was a conceivable basis to support the government s act or decision. See Crist v. Ervin, 56 So. 3d 745, 747 (Fla. 2010) ( Generally, a state statute must be upheld if there is any reasonable relationship between the act and the furtherance of a valid governmental objective. ) (quoting Lane v. Chiles, 698 So.2d 260, 262 (Fla. 1997)); Haire v. Fla. Dept. of Agriculture and Consumer Services, 870 So. 2d 774, 782 (Fla. 2004) ( under rational basis test, a state statute must be upheld... if there is any reasonable relationship between the act and the furtherance of a valid governmental objective. )(emphasis in original); Eastern Air Lines, Inc. v. Dep t of Revenue, 455 So. 2d 311, 314 (Fla. 1984) (under rational basis test burden is on the one attacking government action to negate every conceivable basis which might support it); Lucas v. Englewood Community Hospital, 963 So. 2d 894, 896 (Fla. 1 st DCA 2007) (in equal protection challenge [a] determination of whether a rational basis exists is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. ); Zurla v. City of Daytona Beach, 876 So. 2d 34, 35 (Fla. 5 th DCA 2004) (in affirming dismissal of complaint with prejudice, court held that a determination of whether a rational basis exists is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. ) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993)); Tiedmann v. Department of Management Services, 862 So. 2d 845, 846-7

847 (Fla. 4 th DCA 2003) (in equal protection challenge, burden is on plaintiff to negate every conceivable basis which might support government s decision). This Court has expressly held, moreover, that competent substantial evidence is tantamount to legally sufficient evidence. Florida Power & Light Company v. City of Dania, 761 So. 2d 1089, 1092 (Fla. 2000). Accordingly, the acknowledgment by the Second District that there was competent and substantial evidence to support City Council s decision necessarily means there was legally sufficient evidence, or a rational basis, to support the City s action. As such, where there has been a finding of competent and substantial evidence, an equal protection claim under the rational basis test cannot pass muster. The Second District s decision effectively amounts to a repudiation of, and must be deemed to be in conflict with, this Court s holding in City of Dania that competent substantial evidence is tantamount to legally sufficient evidence. Indeed, it is oxymoronic to find that there was competent and substantial evidence to support the City s decision and at the same time find no rational basis to support the City s action. III. THE SECOND DISTRICT S DECISION IS IN CONFLICT WITH PAEDAE V. ESCAMBIA COUNTY, STATE OF FLORIDA V. ROBINSON, AND JACQUES V. DEPT. OF BUSINESS AND PROFESSIONAL REGULATION. In Paedae the First District held that the interpretation of the zoning code, which resulted in the wrongful denial of a development permit, did not give rise to an action for damages pursuant to 42 U.S.C. 1983 action notwithstanding the 8

interpretation was arbitrary, capricious, unreasonable and unlawful. 709 So. 2d at 576-577. The Second District s opinion is in express and direct conflict with Paedae insofar as it completely rejects any reliance on Paedae. Although the Second District attempts to distinguish Paedae as only applying to a substantive due process claim, Paedae does not distinguish between substantive due process and equal protection claims. Indeed, in Paedae the First District concludes [t]his case involves no federally protected right. 709 So. 2d at 577 (emphasis supplied). Moreover, contrary to the Second District s analysis that it was error to rely upon Paedae, courts have held that in an equal protection challenge to a zoning decision that [t]he rational basis test is the same as that utilized in a substantive due process claim. Kantner v. Martin County, 929 F. Supp. 1482, 1488 (S.D. Fla. 1996) aff d 142 F.3d 1283 (11 th Cir. 1998) (emphasis supplied); Restigouche Inc. v. Town of Jupiter, 59 F.3d 1208, 1214 n.6 (11 th Cir. 1995) ( the rational basis inquiry is the same for equal protection and substantive due process challenges to zoning. ) (Emphasis supplied.) This Court, moreover, has held The rational relationship test used to analyze a substantive due process claim is synonymous with the reasonableness analysis of an equal protection claim. State of Florida v. Robinson, 873 So.2d 1205, 1214 (Fla. 2004) (emphasis supplied). Similarly, in Jacques v. Dept. of Business and Professional Regulation, 15 So.3d 793, 797 (Fla. 1 st DCA 2009) the First District held Where there is no suspect classification, 9

substantive due process and equal protection analysis are essentially the same. (Emphasis supplied). Accordingly, the decision below which finds substantive due process and equal protection analysis are not the same with regards to a rational basis issue, expressly and directly conflicts with Robinson and Jacques. CONCLUSION This Honorable Court is respectfully requested to review the district court s decision not only because of its direct and express conflict with decisions of this Court and other district courts, but because of the extraordinarily significant state wide impact of its holding. Before the district court s decision, there has never been authority which permitted a 1983 equal protection action to proceed for damages against a governmental entity acting in a quasi-judicial capacity where, as here, there has been an earlier judicial determination that the governmental entity s same challenged action was supported by competent substantial evidence or a rational basis. Indeed, if the district court s decision stands, then it has the unprecedented effect of exposing a quasi-judicial body to liability for a 1983 equal protection claim solely for departing from the essential requirements of law in reaching a decision. Therefore, in order to maintain uniformity of Florida law and effectuate justice, it is imperative that this Honorable Court intervene and accept jurisdiction to review the erroneous decision of the district court. 10

Respectfully submitted, CITY OF TAMPA JAMES H. SHIMBERG, JR. CITY ATTORNEY By: Jerry M. Gewirtz, Chief Assistant City Attorney Florida Bar No. 0843865 Melvia B. Green, Assistant City Attorney Florida Bar No. 0272388 City of Tampa 5th Floor, City Hall - 315 E. Kennedy Blvd. Tampa, Florida 33602 Telephone: (813) 274-8996 Facsimile: (813) 274-8809 And John A. Schifino, Esquire Florida Bar No. 0072321 Allyson L. Lazzara, Esquire Florida Bar No. 0021808 Williams Schifino, Mangione & Steady One Tampa City Center 201 N. Franklin Street Tampa, FL 33601 Telephone: (813) 221-2626 Facsimile: (813) 221-7335 Attorneys for Petitioner, City of Tampa, Florida 11

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing has been furnished via hand delivery to Scott McLaren, Esq., and Marie Borland, Esq. Hill, Ward & Henderson, P.A., Post Office Box 2231, Tampa, FL 33601 on July 21, 2011. Jerry M. Gewirtz Chief Assistant City Attorney CERTIFICATE OF COMPLIANCE I certify that this brief is in compliance with Rule 9.210, Fla. R. App. P., and complies with the font requirements of Rule 9.100, Fla. R. App. P. Jerry M. Gewirtz, Chief Assistant City Attorney Y:\ City National\ Supreme Court 2011\Jurisdictional Brief.doc 12