DJB Rentals, LLC v. City of Largo
| Docket Number | 2D22-693 |
| Decision Date | 03 November 2023 |
| Parties | DJB RENTALS, LLC, Appellant, v. CITY OF LARGO, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Pinellas County; Amy M. Williams Judge.
Benjamin Hillard and Amy Cuykendall Jones of Hillard Cuykendall, Largo, for Appellant.
Matthew D. Weidner of Weidner Law, P.A., St. Petersburg, for Appellee.
BY ORDER OF THE COURT:
Upon consideration of appellant's motion for rehearing or rehearing en banc, clarification, and to certify question filed on August 28, 2023, IT IS ORDERED that the motion is granted as to clarification to the extent that the opinion dated August 11, 2023, is withdrawn and the attached opinion is substituted therefor. The request for rehearing en banc is stricken as facially insufficient. Appellee's Motion to Strike Appellant's Motion for Extension of Time filed September 19, 2023, is granted. Appellant's Motion for Extension of Time filed September 16, 2023, is denied.
No further motion for clarification will be entertained in this appeal.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
DJB Rentals, LLC (DJB), appeals from a final judgment of foreclosure of a municipal lien in favor of the City of Largo (the City), in the amount of $590,295. DJB contends that the trial court erred by denying its motion to add counterclaims by denying its motion to continue the summary judgment hearing until the City responded to discovery requests, and by granting summary judgment in favor of the City. Because DJB has not established that the trial court committed reversible error, the judgment must be affirmed.
The City of Largo Municipal Code Enforcement Board (the Board) entered an order finding the following violations as of July 22, 2015, on the property owned by DJB:
"STANDARDS FOR REQUIRING BUSINESS TAX RECEIPTS, ISSUING GUIDELINES, TRANSFERRING OF BUSINESS TAX RECEIPTS, AND ISSUING BUSINESS TAX RECEIPTS TO INDEPENDENT CONTRACTORS"/ "PMC (EXTERIOR STRUCTURE; ROOFS AND DRAINAGE)" / "PMC (EXTERIOR STRUCTURE; HANDRAILS & GUARDRAILS)" / "PMC (EXTERIOR STRUCTURE STAIRWAYS, DECKS, PORCHES & BALCONIES)" / "PMC (PLUMBING SYSTEMS & FIXTURES; PLUMBING SYSTEM HAZARDS)" / "PMC (HEATING FACILITIES; HEAT (SUPPLY) REQUIRED)"/ "PMC (EXTERIOR STRUCTURE; WINDOWS, SKYLIGHTS & DOOR FRAMES)" / "PMC (EXTERIOR STRUCTURE; PROTECTIVE TREATMENT)"/ "BUILDING WITHOUT PERMITS" / "INOPERABLE VEHICLE(S) VIOLATION "/ "PMC (ELECTRICAL FACILITIES; ELECTRICAL SYSTEM HAZARDS)"
The order directed DJB to cure the violations before September 3, 2015, or face a fine of $250 per day beginning on September 4, 2015. Reinspection of the property on September 4, 2015, revealed that the violations had not been corrected as ordered. The order entered September 24, 2015, stated:
RESPONDENT(S) are hereby ordered to correct the aforesaid VIOLATION(S) immediately and to pay a fine of $250.00 per day for each day the VIOLATION(S) continue beyond September 03, 2015. RESPONDENT(S) is further ordered to contact the Community Development Department (Building Division) to arrange for re-inspection of subject property in order to verify the date on which said VIOLATION(S) have been corrected.
This order was recorded on October 1, 2015, at which point it became a lien by operation of law. See § 162.09(3), Fla. Stat. (2015) ().
The City did not file an action to foreclose on its lien until June 22, 2021; it served DJB on August 18, 2021. DJB filed an answer and affirmative defenses, including the defense of estoppel. In its answer, DJB alleged that it "remedied most or all of the alleged city ordinance violations" and that the City assessed the fines "without breaking down what the specific violations are or dropping the fines for each matter corrected."
The City filed a motion for summary judgment. Approximately one week later, the City set the hearing on that motion for January 31, 2022. On January 13, 2022, DJB filed a motion for a continuance of the summary judgment hearing as well as a motion for leave to add counterclaims against the City and the Board.
In opposition to the motion for summary judgment, DJB filed an affidavit of its principal, Donald Bourgeois, in which Bourgeois swore that a specific code enforcement officer "informed me that as long as work was regularly progressing and eventually brought to code, the City would eventually forgive any liens." He swore that "[h]ad the City been truthful upfront, I may have been able to make other financial arrangements to get the repairs completed more closely with the City's unilaterally-set draconian timeline." In the affidavit, Bourgeois stated that the affidavit was filed in accordance with Florida Rule of Civil Procedure 1.510(d)(1) and (2), and he described the requested discovery as "seek[ing] to get to the bottom of the Permit and issues associated with the City forgiving the fines so long as I was progressing with the repair work."
In DJB's motion for leave to add counterclaims against the City and the City Code Enforcement Board, it sought damages as well as declaratory and injunctive relief. In its factual allegations in support of the counterclaims and third-party claims, DJB alleged that "[a]ll identified Property code violations have been corrected." In Count I, DJB claimed that "[a]s applied, the City's aggregate fines of over $550,000 violate the Excessive Fines Clause of the Florida Constitution." It argued that "[t]he City Code of Ord[i]nances, generally [chapter 9] and specifically, § 9-72 et seq. contemplates individual fines for specific violations, not a single daily fine for multiple violations." It sought injunctive and declaratory relief as well as attorney's fees and costs from the City and the Board. In Count II, DJB alleged that the imposition of a single fine for multiple violations and failure to have a mechanism to reduce the $250 daily fine as the property owner corrects individual code violations "amounts to a violation of the Due Process Clause of the Florida Constitution." It sought injunctive and declaratory relief from the City and the Board as well as attorney's fees and costs. In Count III, DJB sought damages from the City for estoppel, arguing that it relied on the statements of a code enforcement officer who indicated that "as long as work was regularly progressing and eventually brought to code, the City would forgive any fines."
The trial court denied DJB's motion to amend to add these counterclaims and third-party claims, finding "Defendant's proposed Counterclaims and Third Party Claims are not compulsory in nature and must be brought in a separate action." The court granted the City's motion for summary judgment and entered a final judgment in favor of the City, permitting the City to foreclose its municipal lien and setting the claim amount at $590,295.
DJB argues that the trial court abused its discretion by denying its motion to continue the summary judgment hearing after it propounded discovery on the City and moved to amend its answer and affirmative defenses to add counterclaims and third-party claims. See Fasig v. Fasig, 830 So.2d 839, 841 (Fla. 2d DCA 2002) ("The standard of review for the denial of a continuance is abuse of discretion." (citing Webb v. State, 433 So.2d 496 (Fla. 1983)). The City contends that denial was appropriate because the motion was filed to delay the foreclosure and because it was only signed by counsel and not by DJB's principal without good cause.
The propriety of denying a motion to continue turns on "1) whether the movant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted." James B. Nutter &Co. v. Heirs, 314 So.3d 772, 773-74 (Fla. 2d DCA 2021) (quoting Neal v. Swaby, 975 So.2d 431, 433 (Fla. 2d DCA 2007)).
DJB suggests that it would suffer prejudice by the denial of the continuance in that it propounded discovery requests to which the City had not responded. The contents of those discovery requests are not in the record. DJB attempted to utilize rule 1.510(d) to explain what facts it was unable to present in opposition to the summary judgment motion, describing the unanswered discovery as that which "seeks to get to the bottom of the Permit and issues associated with the City forgiving the fines so long as [it] was progressing the repair work."
The City claims that it would suffer injustice by the continuance because of a danger to the community. However, it waited six years after the initial violations to foreclose the lien totaling more than $500,000. Moreover, DJB alleged that all the violations had been corrected, which, if true, would mean that any ongoing threats to the public had since been eliminated.
There was nothing other than the timing of the discovery requests and motions to indicate that the continuance was filed solely to delay. Nor was this a situation in which the moving party had already propounded multiple discovery requests. This was the first set of discovery requests that DJB propounded on the City. However, the underlying cause for the motion was known. See James B. Nutter &Co., 314 So.3d at 773-74 (...
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