Highwoods DLF EOLA, LLC v. Condo Developer, LLC
| Decision Date | 23 December 2010 |
| Docket Number | No. 5D09-3234.,5D09-3234. |
| Citation | 51 So.3d 570 |
| Parties | HIGHWOODS DLF EOLA, LLC, Appellant, v. CONDO DEVELOPER, LLC, and The City of Orlando, etc., Appellee. |
| Court | Florida District Court of Appeals |
Robert D. Gatton, of Robert D. Gatton, P.A., Broad and Cassel, Orlando, for Appellant.
H. Ray Allen, II, Joseph Hagedorn Lang, Jr., and Erin E. Banks of Carlton Fields, P.A., Tampa, for Appellee, Condo Developer, LLC.
Janet M. Courtney, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellee, Vue-Orlando, LLC.
Highwoods DLF EOLA, LLC, ("Highwoods"), appeals an order denying its motion for leave to intervene. We agree that the lower court abused its discretion in failing to recognize Highwoods as a party in the case, and reverse.
Highwoods is a Delaware limited liability company, which owns real property located at 200 East Robinson Street, in Orlando, Florida, ("Highwoods' Property"). Highwoods' Property is part of an existing master plan comprised of several parcels of land known as the Eola Park Centre Master Plan, approved by the City of Orlando several years ago. In 2007, Highwoods applied to the City for a master plan amendment so that it could build a forty-two story mixed-use, high-rise building on its property.
Condo Developer, LLC, ("Condo Developer"), a Florida limited liability company, owns a multifamily residential high-rise building called "The Vue," which is located across the street and to the west of Highwoods' property. If Highwoods is allowed to build the proposed forty-two story high-rise on its property, the new building would block a portion of the view, from The Vue, of downtown Orlando's Lake Eola and Lake Eola Park. Condo Developer objected to Highwoods' requested master plan amendment in quasi-judicial proceedings before the City.
Ultimately, the City approved Highwoods' requested master plan amendment, and Condo Developer challenged the City's decision in circuit court, in the case below, by filing a petition for writ of certiorari pursuant to the Florida Rules of Appellate Procedure. See Fla. R.App. P. 9.190(b)(3) (); see also, Board of County Comm'rs v. Snyder, 627 So.2d 469, 474-75 (Fla.1993) ().
Florida Rule of Appellate Procedure 9.100(b) dictates that when a party files a certiorari petition to challenge a quasi-judicial land use proceeding, as Condo Developer did here, "all parties to the proceeding in the lower tribunal who are not named as petitioners shall be named as respondents." As the applicant in the proceeding before the City, Highwoods was obviously a party to the proceeding below, and should have been named in the petition as a respondent. Id. We also note that Highwoods actively participated as a party, at all stages of the quasi-judicial proceeding that resulted in the order challenged in Condo Developer's petition. When Condo Developer filed its petition naming only the City as a respondent, the City sent a courtesy copy to Highwoods.Highwoods first filed a motion to dismiss for failure to include Highwoods as an indispensible party under rule 9.100(b). When the circuit court denied that motion, Highwoods then filed its motion to intervene, see Fla. R. Civ. P. 1.230 (), which the circuit court also denied. This appeal followed.
We see no legal basis for the circuit court's denial of Highwoods' motion to intervene, in light of the plain language of rule 9.100(b). In addition, Highwoods meets the long-standing test for intervention set forth in Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918): "[T]he interest which will entitle a person to intervene ... must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment." In this case, Condo Developer seeks to quash the order granting Highwoods' requested master plan amendment, and allowing Highwoods to develop its property in accordance with its plans. As such, it is Highwoods which will be most directly affected—which most directly stands to "gain or lose"—by the outcome of Condo Developer's certiorari proceeding.
Despite Highwoods' citation to rule 9.100(b), the circuit court was persuaded in its decision by Condo Developer's argument that Highwoods was not an indispensable party by virtue of the holdings in Brigham v. Dade County, 305 So.2d 756 (Fla.1974); Concerned Citizens of Bayshore Community v. Lee County, 923 So.2d 521 (Fla. 2d DCA 2005); and City of St. Petersburg, Bd. of Adjustment v. Marelli, 728 So.2d 1197 (Fla. 2d DCA 1999).
In Brigham, the Florida Supreme Court held that a property owner and zoning change applicant was not an indispensable party to a certiorari action filed to challenge a county's approval of the applicant's requested zoning change. The Court reached this result, in part, because "nothing in the appellate rules relating to appeals or to petitions for writs of certiorari requir[ed] joinder of [the original applicant]" as a party to the certiorari case. Id. at 758. It was later that the Court amended rule 9.100(b) to add the requirement "that all parties in the lower tribunal be named as either petitioners or respondents," In re Amendments to Florida Rules of Appellate Procedure, 609 So.2d 516, 517 (Fla.1992), and then to make this requirement expressly applicable to certiorari actions like the one initiated by Condo Developer below. Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773 (Fla.1996); Amendment to Florida Rule of Appellate Procedure 9.020(a) and Adoption of Florida Rule of Appellate Procedure 9.190, 681 So.2d 1132 (Fla.1996). Because the Florida Supreme Court made these changes to the appellate rules after deciding Brigham, and the rule changes expressly dictate a different result, Brigham is no longer controlling on this point.
In Marelli, the Second District addressed a case in which a property owner, Compro Corporation, had successfully applied to the City of St. Petersburg for a zoning variance, but was then not allowed to participate in a circuit court certiorari action filed by neighboring property owners to challenge the zoning variance granted for Compro's property. The court stated that it found no merit to the argument that Compro should have been included as a party in the certiorari proceeding, simply citing to Brigham. Id. at 1198. Nowhere in the Marelli decision does the court reference the rule changes that should have dictated a different result, so it is not clearthat the applicable appellate rules were brought to that court's attention.
In Concerned Citizens, the Second District quashed a circuit court order that dismissed a certiorari petition challenging a county zoning order. The circuit court had dismissed the petition, with prejudice, because the petitioners failed to name the land owner who had requested the zoning change, U.S. Home, as a party. The Second District held that U.S. Home was not an indispensable party to the action, again citing to Brigham. Id. at 523. The court, however, also ruled that rule 9.100(b), requiring "that all parties in the lower tribunal be named as either petitioners or respondents," did not apply to the certiorari action. Id. We do not understand the basis for this ruling, given the plain language of the applicable rules. But, the court then went on to alternatively hold that even if the appellate rules did apply, the certiorari petition should not have been dismissed with prejudice for failure to name U.S. Home as a party since the rules would have automatically made U.S. Home a respondent, even if the petitioner had failed to name U.S. Home as a respondent on the face of its petition. Id. at 523 n. 1.
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...court's order is properly reviewed by way of direct appeal, not by collateral petition. See Highwoods DLF EOLA, LLC v. Condo Developer, LLC, 51 So.3d 570, 573 n. 1 (Fla. 5th DCA 2010) (“Highwoods ”). As in Highwoods, the circuit court's order denying Massagee's request for appellate attorne......
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