City of Gainesville Code Enforcement Bd. v. Lewis, 88-305

• Decision Date: 28 December 1988
• Docket Number: No. 88-305,88-305
• Citation: 536 So.2d 1148,14 Fla. L. Weekly 96
• Parties: 14 Fla. L. Weekly 96 CITY OF GAINESVILLE CODE ENFORCEMENT BOARD, Appellant, v. John J. LEWIS and Richard L. Buchholz, Appellees.
• Court: Florida District Court of Appeals

Page 1148

536 So.2d 1148

14 Fla. L. Weekly 96

CITY OF GAINESVILLE CODE ENFORCEMENT BOARD, Appellant, v. John J. LEWIS and Richard L. Buchholz, Appellees.

No. 88-305.

District Court of Appeal of Florida,

First District.

Dec. 28, 1988.

Ronald D. Combs, Asst. City Atty., Gainesville, for appellant.

Robert A. Stern, P.A., Gainesville, for appellees.

BARFIELD, Judge.

City of Gainesville Code Enforcement Board ("CEB") appeals an order granting Richard Buchholz' motion to dismiss a statutory lien foreclosure complaint with prejudice for failure to state a cause of action. We reverse because CEB's complaint states a valid cause of action, and the trial court erred in dismissing the complaint.

In March 1987, CEB filed an action to foreclose statutory liens on real property against Richard Buchholz, who had purchased the property (subject to the liens) from John Lewis. The liens arose from Lewis' violation of two city ordinances, section 15(a)-35 pertaining to faulty electrical connections and section 29-15(c) relating to zoning for single-family dwellings. CEB's complaint alleged that Lewis failed to comply with either ordinance within the time limits previously specified by CEB, which resulted in a lien being imposed on March 5, 1985. The complaint further alleged that actual compliance had occurred as of June 12, 1985, and an amended lien was imposed on August 16, 1985. However, neither Lewis nor Buchholz had paid the outstanding liens which totalled $3,380.00.

Buchholz filed a motion to dismiss CEB's complaint for failure to state a cause of action upon which relief could be granted alleging that: (1) CEB failed to allege statutory or jurisdictional authority for bringing the action; (2) the city attorney was serving as both CEB counsel and counsel for the city in violation of section 162.05(4), Florida Statutes (1985); (3) the amended lien was improper according to 1986 Op. Att'y Gen. Fla. 86-10 (January 29, 1986) ("AGO 86-10") which interpreted section 162.09 to mean that a municipality may not provide for continued running of fines against property owners for noncompliance after a lien has been recorded and a municipality may not amend its original lien to include portions of fines accumulating after the original lien was recorded; (4) the original lien was defective according to 1985 0p. Att'y Gen. Fla. 85-84 (October 25, 1985) ("AGO 85-84") which interpreted § 162.09 to mean that a code enforcement board must find that the same violation has been repeated by the same violator before it can impose a fine for each day the repeated violation continues past the date set for compliance; and (5) the date of re-inspection reflecting compliance on June 12, 1985 does not state the date that corrective action was actually taken, so that the fine assessment through June 12, 1985 was improper.

In opposing the motion to dismiss, CEB asserted that: (1) its jurisdiction to bring this action is derived from Section 162.09 which it properly alleged in paragraphs 8 and 9 of the complaint; (2) CEB did not violate Section 162.05(4) because the city attorney serves as prosecutor before the CEB, and CEB's counsel is a contract position and not employed by the city; (3) assuming Buchholz accurately interpreted AGO 86-10 regarding the impropriety of the amended lien, AGO 86-10 does not invalidate the original lien; (4) Buchholz misinterpreted AGO 85-84, which merely prohibits CEB from assessing additional fines once it meets and acts upon the affidavit of noncompliance and from that point on, a finding of a repeated violation by the same violator is required; and, that AGO 85-84 in no way affects a code enforcement board's authority to assess a fine and establish a lien on the original violation.

In dismissing the complaint with prejudice the trial court did not state any reasons for its decision, nor was the hearing on dismissal transcribed. CEB asserts that the trial court's failure to give reasons for the dismissal with prejudice constitutes reversible error, citing May v. Holley, 59 So.2d 636 (Fla.1952) and Talcott v. Central Bank & Trust Company, 220 So.2d 411 (Fla. 3rd DCA 1969).

Although the better practice would have been for the trial court to state the grounds for dismissal, see Jezek v. Vordemaier, 227 So.2d 69, 71 (Fla. 4th DCA 1969), nothing in the Florida Rules of Civil Procedure requires a trial court to specify the grounds for dismissal. Without moving the lower court for a rehearing under rule 1.530 or supplying this court with an adequate record pursuant to the appellate rule 9.200, CEB's argument for reversal on this ground carries little weight. Furthermore, in both May and Talcott the trial court had erred because the complaint had stated a sufficient cause of action under the declaratory judgment statute. In dictum, the court in Talcott (quoting May ), observed that where a motion to dismiss challenges a complaint on several grounds, including the merits, jurisdictional or procedural matters, "the parties have a right to know the reasons which motivated the action of the court[s]". 220 So.2d at 412. Neither case stands for the proposition that a trial court commits reversal error solely because it fails to state its reasons for dismissing a complaint with prejudice.

The core issue in this appeal is whether any of the five reasons argued by Buchholz in his motion would support dismissal of the complaint and if so, whether the defect could have been cured by amendment. On a motion to dismiss, a trial court is limited to the allegations of the complaint, and must construe those allegations in favor of the non-moving party. American Mutual In. Co. v. Bender, 513 So.2d 669 (Fla. 1st DCA 1987) rev. den. 518 So.2d 1273 (Fla.1987). When a complaint is dismissed for failure to state a cause of action, this court must assume that the allegations of the complaint are true and draw all reasonable inferences arising from the allegations in favor of the plaintiff. Ralph v. City of Daytona Beach, 471 So.2d 1 (Fla.1983). Furthermore, a complaint which states a cause of action on any ground should not be dismissed for failure to state a cause of action. Nicholson v. Kellin, 481 So.2d 931 (Fla. 5th DCA 1986).

As to the first reason for dismissal, CEB alleged in paragraphs 8 and 9 of the complaint its statutory authority for bringing the action, and even if the complaint were deficient in this regard, it would not be a valid...