Neapolitan Enters., LLC v. City of Naples

• Decision Date: 29 January 2016
• Docket Number: No. 2D14–4219.,2D14–4219.
• Parties: NEAPOLITAN ENTERPRISES, LLC, Appellant, v. The CITY OF NAPLES, Olde Naples Building LLC, and Broad Avenue LLC, Appellees.
• Court: Florida District Court of Appeals

185 So.3d 585

NEAPOLITAN ENTERPRISES, LLC, Appellant,
v.
The CITY OF NAPLES, Olde Naples Building LLC, and Broad Avenue LLC, Appellees.

No. 2D14–4219.

District Court of Appeal of Florida, Second District.

Jan. 29, 2016.

Hala Sandridge of Buchanan Ingersoll & Rooney P.C./Fowler White Boggs, Tampa, Linda Loomis Shelley of Buchanan Ingersoll & Rooney P.C./Fowler White Boggs, Tallahassee, and Raoul G. Cantero, III, of White & Case, LLP, Miami, for Appellant.

185 So.3d 588

Gerald W. Pierce of Gerald W. Pierce, P.A., Fort Myers, for Appellee The City of Naples.

John K. Shubin, Deana D. Falce, and Katherine R. Maxwell of Shubin & Bass, P.A., Miami, for Appellees Olde Naples Building LLC and Broad Avenue LLC.

SILBERMAN, Judge.

Neapolitan Enterprises, LLC, appeals a final order dismissing with prejudice its amended complaint for declaratory and injunctive relief in its action against Olde Naples Building LLC and Broad Avenue LLC (collectively, Olde Naples) and the City of Naples. The Olde Naples Building (the Building) and its parking space credits are at the center of this dispute. In this action Neapolitan was seeking to void the City's alleged ultra vires act of confirming seventy-six parking credits in a letter from the City's planning director that served to reduce the Building's parking space obligation. Neapolitan contends that the City should have followed the variance process which would have required the City to give affected landowners, such as Neapolitan, notice and an opportunity to be heard. We reverse the dismissal of the amended complaint and remand for further proceedings.

The pertinent facts for purposes of this appeal are taken from the allegations in the amended complaint, and those allegations must be taken as true in considering a motion to dismiss. See Hussey v. Collier Cty., 158 So.3d 661, 664 (Fla. 2d DCA 2014). In November 2010 a notice indicated that the City's Design Review Board (DRB) would have a hearing on architectural renovations to the façade of the Building. The DRB does not have the authority to make zoning or parking decisions and did not make any decision on parking. In March 2011 Olde Naples sought a building permit to perform renovations to stabilize the Building. The permit requested confirmation of parking space credit calculations to "secure the parking nonconformity." A notation on the submitted plans by Planning Director Robin Singer (the Planning Director) states, "Parking Credits as shown on Page A10 have not been officially determined as of 4/12/11. Parking credits, if any, will be determined by the Planning Director." A building permit was issued.

A letter of September 2, 2011, from the Planning Director to Neapolitan's counsel notified Neapolitan of the administrative decision to approve parking calculations supplied by Olde Naples and outlining reasons why the City accepted Olde Naples' parking calculations. The Planning Director's notation on the submitted plans and her letter of September 2, 2011, are attached as exhibits to the amended complaint. The result of the City's actions is to allow Olde Naples to use the Building as a restaurant without providing any off-street parking. The seventy-six parking spaces that Olde Naples did not provide represents over one-third of the public parking available in the Third Street Commercial District.

Neapolitan filed two administrative appeals with the City, but the City refused to hear the appeals. On October 3, 2011, Neapolitan filed a petition for writ of certiorari with the circuit court. Neapolitan asserted that the City had employed a flawed procedure to, in effect, grant a variance that deprived Neapolitan of due process and that competent, substantial evidence did not support the City's decision. On July 20, 2012, the circuit court denied (rather than dismissed) the petition. But the circuit court specifically determined that it did not have jurisdiction to review the petition because the Planning Director made the parking determination in the letter of September 2, 2011. The circuit

185 So.3d 589

court concluded that the parking decision made in the letter was not quasi-judicial action reviewable by a petition for writ of certiorari. On second-tier review, this court denied Neapolitan's petition without a written opinion.

Meanwhile, on July 13, 2012, Neapolitan had also filed a complaint for declaratory and injunctive relief in the circuit court. On November 11, 2013, Neapolitan filed its first amended complaint that is the subject of this appeal. Olde Naples and the City filed motions to dismiss that argued, among other things, that Neapolitan failed to file a petition for writ of certiorari to challenge DRB Resolution 10–22, issued on November 24, 2010, and that Neapolitan's claims were barred by res judicata and collateral estoppel.

After a hearing on motions to dismiss, the trial court dismissed the amended complaint with prejudice. In its order granting the motions to dismiss, the trial court found, "On November 24, 2010, DRB Resolution 10–22 was issued, approving [Olde Naples'] plans to renovate the [Building] and determined that the [Building] qualifies for an allowance of 76 parking space credits." The trial court further found that the City granted to Olde Naples "a parking variance on November 24, 2010, and as such the proper remedy available to [Neapolitan] to determine whether procedural due process was afforded would have been through a timely filed Petition for Writ of Certiorari." Determining that Neapolitan failed to timely challenge the 2010 DRB resolution, the trial court concluded that any issues regarding the DRB were procedurally barred. Thus, the trial court granted the motion to dismiss the amended complaint with prejudice and dismissed the action.

We employ a de novo review of the dismissal of a complaint with prejudice. Ferguson Enters., Inc. v. Astro Air Conditioning & Heating, Inc., 137 So.3d 613, 615 (Fla. 2d DCA 2014). A motion to dismiss does not concern fact issues; rather, it tests the legal sufficiency of the complaint. Hussey, 158 So.3d at 664. In ruling on a motion to dismiss, a trial court is limited to considering the four corners of the complaint along with the attachments incorporated into the complaint. Id.; May v. Salter, 139 So.3d 375, 376 (Fla. 1st DCA 2014). In the trial court and on appeal, the court must accept the allegations in the complaint as true. Hussey, 158 So.3d at 664.

Normally affirmative defenses such as res judicata and collateral estoppel must be raised in an answer, not in a motion to dismiss, unless the face of the complaint demonstrates the defense. See Bolz v. State Farm Mut. Auto. Ins. Co., 679 So.2d 836, 837 (Fla. 2d DCA 1996) ; Jasser v. Saadeh, 103 So.3d 982, 984 n. 2 (Fla. 4th DCA 2012) ; Ramos v. Mast, 789 So.2d 1226, 1227 (Fla. 4th DCA 2001). For example, when a complaint alleging negligence and a breach of fiduciary duty did not mention or incorporate a prior dissolution of marriage judgment, the trial court violated principles of res judicata and collateral estoppel "when it ventured outside the four corners of the complaint, took judicial notice of the final judgment of dissolution of marriage, and dismissed the complaint with prejudice." Norwich v. Global Fin. Assocs., LLC, 882 So.2d 535, 537 (Fla. 4th DCA 2004) ; see also Bolz, 679 So.2d at 837 (reversing dismissal of complaint on res judicata grounds when the complaint failed to refer to the prior action and the trial court "could not consider the pleadings attached to [the] motion" to dismiss).

However, when a complaint specifically incorporated by reference the prior proceedings such that "the trial court had before it a complete history of this litigation,"

185 So.3d 590

the appellate court affirmed the dismissal of the complaint based on issues of res judicata and estoppel by judgment. Duncan v. Prudential Ins. Co., 690 So.2d 687, 688 (Fla. 1st DCA 1997) ; see also Jasser, 103 So.3d at 984 n. 2 (stating that there were "sufficient references in the complaint itself to the history of the entire matter so that the issue may be determined").

Here, the trial court took judicial notice only of the certiorari order and this court's per curiam denial of the second-tier certiorari petition. The trial court found that on November 24, 2010, DRB Resolution 10–22 was...