Florida Appeals Court

Detournay v. City of Coral Gables

Case No. 3D11-2012.

Lisa M. Detournay, et al., Appellants,
v.
City of Coral Gables, etc., et al., Appellees.

District Court of Appeal of Florida, Third District.

Opinion filed December 4, 2013.

Andrew Dickman, P.A., and Andrew W. J. Dickman (Naples), for appellants.

Akerman Senterfitt and Gerald B. Cope, Jr., Elizabeth M. Hernandez, and Jennifer Cohen Glasser, for appellee City of Coral Gables; Tew Cardenas, Santiago D. Echemendia, and Maria P. Gonzalez for intervenor-appellee Amace Properties, Inc.

Before SHEPHERD, C.J., and LAGOA and LOGUE, JJ.

LOGUE, J.

Lisa Detournay and Brenda Randol, who own homes in Coral Gables, and their homeowners' association, the Rivera Neighborhood Association, Inc., (hereinafter "the Homeowners") filed a two-count complaint to require the City of Coral Gables to prosecute an enforcement action against nearby property owned by Amace Properties, Inc. The trial court dismissed the first count for lack of standing. Although it held the Homeowners had no standing, the trial court nevertheless entered a judgment against the Homeowners on the second count. On appeal by the Homeowners, we affirm the dismissal of count one, albeit on different grounds, and we direct the dismissal of count two. Under the doctrine of separation of powers, the City's discretion to file, prosecute, abate, settle, or voluntarily dismiss a building and zoning enforcement action is a purely executive function that cannot be supervised by the courts, absent the violation of a specific constitutional provision or law.

FACTS AND PROCEDURAL HISTORY

Amace Properties, Inc. owns commercial property on one of the branches of the canals that run through the City to Biscayne Bay. For the most part, these canals are lined with expensive homes. From its property, Amace operates what both the City and the Homeowners maintain is a private yacht basin that rents slips and moorings in a manner that violates various provisions of the City's building and zoning code. In April 2004, the City issued three administrative citations against Amace. After filing these enforcement actions, however, the City held them in abeyance for years while attempting to settle them as part of a proposed re-development of Amace's property. Unhappy at the City's failure to vigorously prosecute Amace, the Homeowners' filed the instant case to force the City to pursue its enforcement actions. Count one requested a declaratory judgment and count two requested an injunction.

The tenor of the Homeowners' concerns are apparent from the following language in the complaint:

46. Unless restrained, defendant city will continue to ignore its zoning regulations, contrary to the express language in the zoning code, and continue to allow the operation of the illegal private yacht basin at issue here. 47. Immediate and irreparable injury, loss and damage for which there is no adequate remedy at law will result to the plaintiffs by this action of the city because this private yacht basin use will continue to operate in violation of the law. 48. The city's zoning code has as its basis the government's police powers — to protect the public health safety and welfare. Where the city's zoning code is ignored, the guarantee of the city's protection of the public health, safety and welfare is also ignored and the public is irreparably harmed. 49. The refusal of the City of Coral Gables to enforce its zoning code, where three notices of violation were issued and the city attorney confirmed the violation, creates an injury to plaintiffs and all Coral Gables citizens that cannot be compensated by money or remedied in any other manner except by requiring enforcement of the violated code provision. 50. Plaintiffs as residents of the City of Coral Gables have a legitimate and reasonable expectation that all citizens will be treated the same when it comes to the enforcement of the city's zoning code. Plaintiffs reasonably expect that certain citizens and/or property owners are not "more equal" than others when the city seeks to enforce its zoning code. 51. Plaintiffs cannot seek enforcement of the city's zoning code where the city refuses to do so. 52. Plaintiff's injury cannot be "cured" except by requiring the city to enforce its zoning code, follow its law and direct the property owner to cease its illegal use or to obtain the required conditional use approval, thus legalizing the illegal use.

Amace intervened in the lawsuit as a defendant, although the Homeowners made no allegations against Amace. In its answer, motion to dismiss, and renewed motion to dismiss, the City raised the holding of Trianon Park Condominium Association, Inc. v. City of Hialeah, (Fla. 1985), asserting that the Homeowners were not entitled to the relief sought because the City had discretion whether and how to prosecute violations of its zoning ordinances. On the second day of trial, the trial court entered the order and final judgment on appeal, dismissing count one for lack of standing and finding in favor of the City on count two. This appeal followed.

DISCUSSION

We agree with the dismissal of count one, albeit on grounds different than that relied upon by the trial judge. Rather than basing the dismissal on standing, we think the simplest and most direct explanation of why dismissal is proper is provided by the principles of separation of powers discussed in Trianon and its progeny. Count two, seeking injunctive relief, should be dismissed for the same reason.

In Trianon, owners of units in a condominium building that had been constructed in an allegedly grossly negligent manner sued the City of Hialeah. They sought to hold the City liable for failure to enforce its building and zoning laws against the developer who built the condominium. Id. at 915. The Florida Supreme Court held that a government entity is not liable in tort to individual property owners for the failure to enforce provisions of building and zoning codes. Id. at 919. Although Trianon involved a suit for torts, its reasoning and holding apply equally well to suits like the instant case, where private parties seek a declaratory judgment and injunction against a city regarding the failure of the city to enforce its building and zoning codes against another private party.

In holding a city cannot be sued by a private party because it failed to enforce its building and zoning laws against another private party, the Court observed that "certain discretionary functions of government are inherent in the act of governing and are immune from suit." Id. at 918. In this regard, the Court stated:

We find that the enforcement of building codes and ordinances is for the purpose of protecting the health and safety of the public, not the personal or property interests of individual citizens. The discretionary power to enforce compliance with the building code flows from the police power of the state. In that regard, this power is no different from the discretionary power exercised by the police officer on the street in enforcing a criminal statute, the discretionary power exercised by a prosecutor in deciding whether to prosecute, or the discretionary power exercised by a judge in making the determination as to whether to incarcerate a defendant or place him on probation. Statutes and regulations enacted under the police power to protect the public and enhance the public safety do not create duties owed by the government to citizens as individuals without the specific legislative intent to do so.

Id. at 922; see also Carter v. City of Stuart, (Fla. 1985) ("The amount of resources and personnel to be committed to the enforcement of this ordinance was a policy decision of the city. The city has the right to set its priorities in reference to law enforcement.").

This immunity from suit is often called sovereign immunity. Trianon, 468 So. 2d at 922. It bears repeating, however, that the reason courts cannot generally supervise the executive when it is deciding when and how to enforce specific laws is not based on the archaic notion that "the king can do no wrong." Instead, it is founded on the doctrine of separation of powers, one of the structural pillars upon which American freedoms rest: "under the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights." Id. at 918. To hold otherwise, the Court reasoned, "would require the judicial branch to second guess the political and police power decisions of the other branches of government and would violate the separation of powers doctrine." Id.

Turning to the instant case, the City's discretion to file, prosecute, abate, settle, or voluntarily dismiss a building and zoning enforcement action is analogous to a prosecutor's discretion to file, prosecute, abate, settle, or dismiss a criminal or civil lawsuit. Id. at 922. The prosecutor's discretion in this regard is a pure executive function that cannot be supervised by the courts, absent the violation of a specific constitutional provision or law.

It follows in the instant case that the City's discretion to file, prosecute, abate, settle, or dismiss a building and zoning enforcement action against Amace is an executive function that cannot be supervised by the courts, absent the violation of a specific constitutional provision or law.

Our decision in this regard dovetails with the cases holding that a writ of mandamus cannot issue against a city on behalf of a private party to require the city to enforce its building and zoning laws against another private party. See Alexander v. City of Coral Gables, (Fla. 3d DCA 1999) (holding that mandamus does not lie to compel a city to enforce its zoning regulations, because the decision whether to enforce is discretionary); Centrust Sav. Bank v. City of Miami, (Fla. 3d DCA 1986) (holding that a writ of mandamus does not lie to compel a city to enforce its building code against third parties); RHS Corp. v. City of Boynton Beach, (Fla. 4th DCA 1999) (holding that mandamus does not lie to compel a city to enforce its zoning regulations, because the decision whether to enforce is discretionary, rather than ministerial).

The few cases holding to the contrary pre-date Trianon and appear not to have considered or followed the controlling principle of separation of powers. See Fortunato v. City of Coral Gables, (Fla. 1950) (reversing the denial of a temporary injunction sought to prevent the city from issuing a building permit); Rebholz v. Floyd, (Fla. 2d DCA 1976) (reversing for issuance of a writ of mandamus to enforce zoning regulations).

While the cases we rely on arose in torts, mandamus and criminal law, the governing principles apply equally well to injunctions and declaratory actions. Separation of powers is a constitutional doctrine that extends across all procedural vehicles that might be used to challenge executive action. It would be a hollow idea if it applied only to some procedures and not others. In this regard, the case of Kempfer v. St. Johns River Water Management District, (Fla. 5th DCA 1985), is easily distinguishable. Kempfer held only that sovereign immunity does not bar property owners' rights to seek declaratory relief to construe a deed and easement that they conveyed to a government. It involved the government's legal rights and responsibilities as a property owner. It did not implicate the government's discretion whether or not to prosecute enforcement actions against third parties. Our decision does not address the ability of the Homeowners to bring a direct action against Amace because the Homeowners have filed no complaint and requested no relief against Amace; therefore, the issue of the validity of such a lawsuit is not before us.

CONCLUSION

We are sympathetic to the frustration of the Homeowners at the City's decision to abate its enforcement action against Amace, but we must defer to the City's right to exercise its discretion to seek a settlement that might accommodate the concerns of all parties. In this situation, the courts have no role in advising or directing a government when, if, and how to maintain an administrative enforcement action: the role of the courts is limited to adjudicating any such action when it is properly at issue before them. To the extent that the Homeowners seek to have the City desist in its settlement efforts and instead vigorously prosecute the enforcement actions, they need to knock on the doors of city hall, not the courthouse.

For the foregoing reasons, we affirm the trial court's decision to dismiss, although on the grounds stated herein. We reverse that portion of the final judgment ruling on the merits because the court should not have reached that issue. Instead, count two should also be dismissed.

Affirmed, in part, reversed, in part, and remanded for proceedings consistent with this decision.

SHEPHERD, C.J., concurs.

LAGOA, J., (dissenting).

I respectfully disagree with the majority's decision to affirm the trial court. The plaintiffs, Lisa Detournay ("Detournay"), Brenda Randol ("Randol"), and the Riviera Neighborhood Association, Inc. ("RNA") (collectively, "Homeowners") appeal an order and final judgment dismissing with prejudice Count I (declaratory relief), and finding in favor of the defendant, City of Coral Gables (the "City"), on Count II (injunctive relief), of their second amended complaint. For the following reasons, I would reverse.

I. FACTUAL AND PROCEDURAL HISTORY

Detournay and Randol each own a home on Caballero Boulevard in Coral Gables. Their homes sit along what is known as the Mahi Waterway. The Mahi Waterway runs through the City and provides access to Biscayne Bay. Defendant/intervenor, Amace Properties, Inc. ("Amace"), owns commercial property on the Mahi Waterway, west of Detournay and Randol's homes. Amace rents spaces behind its property to boat owners, allowing them to tie up their boats along bulkheads. RNA is a homeowners association "representing the interests of its members who are concerned with protecting and preserving the residential neighborhood in the area of and adjacent to" Amace's property.

The Homeowners filed a Second Amended Complaint for declaratory and injunctive relief pursuant to section 86.021, Florida Statutes (2009), seeking to end the City's abatement of its zoning regulation enforcement against Amace. The Homeowners assert that Amace's rental of the boat spaces constitutes the operation of an "illegal private yacht basin" under the City's zoning regulations.

In Count I, the Homeowners seek "a declaration regarding whether the private yacht basin is operating pursuant to the City's zoning regulations and whether the City acted contrary to the requirements of its zoning regulations when it failed to close the illegal private yacht basin." In Count II, the Homeowners seek "permanent injunctive relief that would enjoin the operation of the private yacht basin," if the trial court finds in Count I that Amace is operating a private yacht basin contrary to the City's zoning regulations and that "the city acted contrary to the requirements of its zoning regulations when it failed to close the illegal private yacht basin."

The Homeowners specifically allege that Amace's use of its property to rent out the boat spaces "has caused Plaintiffs to suffer from boat congestion, noise, pollution, canal bank erosion, wake damage and a diminution of their privacy and the tranquil use of their property."

Amace's Answer raised several affirmative defenses, including estoppel, laches, and that the yacht basin, which was established in 1947, is a legally non-conforming use permitted under the City's code. The City's Answer raised various affirmative defenses, including that municipalities have discretion to enforce their zoning regulations and the City did not abuse its discretion, that the Homeowners' claim for injunctive relief fails to state a cause of action, that injunctive relief is an improper remedy, and that the Homeowners have failed to exhaust their administrative remedies.

On the morning of the third day of trial, the City filed a renewed motion to dismiss and memorandum of law. For the first time, the City argued that the Homeowners lacked standing to assert their claims because they had not alleged, and could not establish, that they had suffered a special injury as a result of the City's failure to enforce its zoning code. The City also argued that the Homeowners' claims failed because municipalities have discretion as to how and when to enforce their zoning regulations.

The Homeowners objected, arguing that the issue of standing could not be raised at this point in the trial. The trial court conducted a hearing on the City's motion, and heard testimony from two of the City's witnesses — a City zoning official and Armando Guerra, Amace's president. Both witnesses testified to the history of various negotiations and alleged agreements between Amace and the City with regard to Amace's use of its property.

At the conclusion of Guerra's testimony, the trial court dismissed Count I, finding that the Homeowners lacked standing. At the conclusion of the zoning official's testimony, the trial court concluded that the City had not abused its discretion in the enforcement of its zoning regulations.

The trial court subsequently entered the order and final judgment on appeal. In its written order, the trial court dismissed Count I with prejudice, finding that the Homeowners lacked standing absent evidence of a special injury. Specifically, the trial court found "that there is no standing for these private citizens to bring this action absent evidence of a special injury. . . . Because Plaintiffs have not and cannot establish special injury, the Court finds, as a matter of law, that under the circumstances presented, these Plaintiffs lack standing as to Count I." The trial court further found in favor of the City on Count II, concluding that, based on the testimony heard in the case, the City had not abused its discretion. This appeal ensued.

II. ANALYSIS

The trial court dismissed Count I for lack of standing. "Whether a party is the proper party with standing to bring an action is a question of law to be reviewed de novo." FCD Dev., LLC v. S. Fla. Sports Comm., Inc., (Fla. 4th DCA 2010) (quoting Westport Recovery Corp. v. Midas, (Fla. 4th DCA 2007)), review denied, (Fla. 2011). An appellate court reviews an order of dismissal based on lack of standing de novo. Wheeler v. Powers, (Fla. 5th DCA 2008); Sanchez v. Century Everglades, LLC, (Fla. 3d DCA 2006). "In determining whether to dismiss a complaint for lack of standing, [the Court] must confine [its] review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true." Payne v. City of Miami, (Fla. 3d DCA 2005).

As discussed below, the trial court erred in dismissing Count I for three reasons. First, the issue of standing was waived by the City. This Court has stated that a challenge to a party's standing can be waived if not raised as an affirmative defense. See Stratton v. 6000 Indian Creek, LLC, (Fla. 3d DCA 2012) (standing is an affirmative defense that can be waived); Bank of New York Trust Co. v. Rodgers, (Fla. 3d DCA 2012) (reversing final judgment entered in favor of defendants based on plaintiff's lack of standing where there was no denial or defense raised in defendants' pleadings concerning standing); see also Phadael v. Deutsche Bank Trust Co. Americas, (Fla. 4th DCA 2012) ("We have previously explained that lack of standing is an affirmative defense that must be raised by the defendant and the failure to raise it generally results in waiver."), review denied, (Fla. 2012); Kissman v. Panizzi, (Fla. 4th DCA 2005) (same). But see Maynard v. Fla. Bd. of Educ., (Fla. 2d DCA 2009) (holding that standing need not be raised only by means of an affirmative defense). Here, the City failed to raise standing as an affirmative defense and only asserted lack of standing on the third day of trial. I would therefore find that the City waived the issue of standing by failing to raise it as an affirmative defense, and that the trial court erred in considering the City's motion to dismiss on that basis at such a late date in the proceedings.

Second, even if a challenge to standing had not been waived, the Declaratory Judgment Act does not require that a special injury be established in order to maintain a claim under the Act, as long as the elements of the Act itself are established. See Combs v. City of Naples, (Fla. 2d DCA 2007) ("Section 86.021, which addresses standing to seek a declaratory judgment, contains no requirement that a special injury be established."). "[I]n order to properly invoke the jurisdiction of the circuit court, the party seeking a declaration must not only show that he is in doubt as to the existence or nonexistence of some right or status, but also that there is a bona fide, actual, present, and practical need for the declaration[.]" State, Dep't of Envtl. Prot. v. Garcia, (Fla. 3d DCA 2011) (citations omitted).

Accepting all well-pled allegations in the Homeowners' complaint as true, I would find that the Homeowners are in doubt as to the existence or nonexistence of a right under the City's zoning ordinances and that there exists a bona fide, actual, present and practical need for the declaration. Because the Homeowners' interests are sufficient to confer standing to seek a declaratory judgment here, I would find that the trial court erred in dismissing Count I for lack of standing.

Finally, even if the City had not waived the issue of standing and even if special damages were required under Florida's Declaratory Judgment Act, I nonetheless would reverse the trial court's order as it relates to Detournay and Randol because they sufficiently alleged special damages to allow them to maintain a cause of action. The seminal cases addressing the issue of a private citizen's right to seek enforcement of a municipal zoning ordinance are Boucher v. Novotny, (Fla. 1958), and Renard v. Dade County, (Fla. 1972). In Boucher, the Florida Supreme Court established the now well-settled rule that in order for a private citizen to maintain an action to enforce a valid municipal zoning ordinance, he or she must allege facts showing "special damages." 102 So. 2d at 135. The Court explained:

We, therefore, align ourselves with the authorities which hold that one seeking redress, either preventive or corrective, against an alleged violation of a municipal zoning ordinance must allege and prove special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.

Id. (emphasis added).

In Renard, the Court further clarified that the "`special damage' rule of the Boucher case is an outgrowth of the law of public nuisance. Zoning violations have historically been treated as public nuisances not subject to suit by an individual unless that individual has suffered damages different in kind and degree from the rest of the community." 261 So. 2d at 835 (footnote omitted). Significantly, however, the Court noted that "in the twenty years since the Boucher decision, changed conditions, including increased population growth and density, require a more lenient application of that rule." Id. at 837-38 (emphasis added). Accord Skaggs-Albertson's v. ABC Liquors, Inc., (Fla. 1978) (stating that the "special damage" rule still has vitality in actions seeking to enforce a valid zoning ordinance, albeit with a more liberal application).

Here, the Homeowners allege that Amace's rental of the boat spaces "has caused Plaintiffs to suffer from boat congestion, noise, pollution, canal bank erosion, wake damage and a diminution of their privacy and the tranquil use of their property." The Second Amended Complaint also states that Detournay and Randol live "immediately to the east" of Amace's property.

Applying Renard's mandate of a more lenient application of the Boucher rule, I would find that Detournay and Randol sufficiently alleged special damages particular to them that differ in kind, rather than simply degree, from those suffered by other homeowners within Coral Gables whose properties do not lie along the Mahi Waterway and who therefore are not uniquely affected by the yacht basin's activities.⁷ Compare Kagan v. West, (Fla. 4th DCA 1996) (Pariente, J.) (finding that plaintiffs alleged and proved special damages different from those suffered by the community as a whole where plaintiffs shared a private road with defendant property owner), with Centrust Sav. Bank v. City of Miami, (Fla. 3d DCA 1986) (no standing where plaintiff made no claim that it had suffered a special injury apart from the injury suffered by any member of the general public as a result of alleged building code violations), and Cont'l Con-Dev Co. v. Shallberg, (Fla. 4th DCA 1972) (finding that where plaintiff brought suit on behalf of himself and all other property owners in the city, he did not have damages different in kind from that of all the other property owners in the general area where his house was across the street from alleged zoning violation).

Additionally, I believe that the trial court erred in making a finding on the merits in favor of the City on Count II (injunctive relief). As pled, Count II is dependent upon a declaration in favor of the Homeowners in Count I Therefore, once the trial court determined that the Homeowners lacked standing to proceed with Count I, the trial court was necessarily precluded from making a finding on Count II.

Turning to the majority, I cannot agree with its reliance upon the doctrine of separation of powers — an issue not raised by either party before the trial court or this Court — in order to affirm the result below. Not only does the majority misapply the doctrine of separation of powers to the Homeowners' allegations, it also fails to address the issue of the Homeowners' standing.

The majority asserts that the trial court properly dismissed Count I (declaratory relief), not on the grounds stated by the trial court—lack of standing— but rather, under the "controlling principle of separation of powers." Specifically, the majority states that the City's discretion to prosecute a zoning violation is a purely executive function that cannot be supervised by the courts. The majority relies upon Trianon Park Condominium Association v. City of Hialeah, (Fla. 1985), for this proposition.

First, the issue of separation of powers was not raised by the City or Amace before the trial court or this Court. At best, the City included a citation to Trianon in its Answer Brief bereft of any reference to the separation of powers doctrine. Moreover, as this issue was not raised on appeal, Detournay and Randol have not been given an opportunity to address the issue of separation of powers.

Notwithstanding the City's failure to raise or preserve this issue, I will address the majority's reliance on the Trianon case. In Trianon, the issue was whether the City of Hialeah could be held liable in tort to condominium owners for damage to condominium units caused by building defects on the basis that the City of Hialeah's building inspectors were negligent in their inspections during construction. In holding that the City of Hialeah could not be held liable, the Court reasoned that enforcement of building codes and ordinances constituted a discretionary governmental function for which there has never been a duty of care, and with which the judicial branch must not interfere. 468 So. 2d at 917-18, 922.

Trianon, and the doctrine of separation of powers enunciated therein, however, do not apply in the instant case. First, Trianon concerns a cause of action at law for damages. Here, the Homeowners did not seek a remedy at law, but rather, sought declaratory and injunctive relief. See Boucher, 102 So. 2d at 134 (stating that a citizen who suffers special damages resulting from a zoning violation "is entitled to injunctive relief in the absence of an adequate legal remedy"). Therefore the rules of governmental tort liability would not apply to Appellants' claims. See Trianon, 468 So. 2d at 917 ("[F]or there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct. For certain basic judgmental or discretionary governmental functions, there has never been an applicable duty of care.") (emphasis added).

Second, the "special damage" rule set forth in Boucher is an outgrowth of the law of public nuisance, which states that because a public nuisance is an offense against all citizens, it is subject to abatement only on motion of the state. Renard, 261 So. 2d at 835 n.5; Skaggs-Albertson's, 363 So. 2d at 1088 ("Inasmuch as a public nuisance was an offense against the state and, accordingly, was subject to abatement on motion of the proper governmental agency, an individual could not maintain an action for a public nuisance unless he suffered some special damage from the public nuisance."). But, as discussed above, if an individual can show some special damage from an alleged zoning violation, he or she then has standing to maintain an action to enforce the zoning ordinance in equity against both a municipality and a private party. See Skaggs-Albertson's, 363 So. 2d at 1088; Renard, 261 So. 2d at 837; Boucher, 102 So. 2d at 135; Page v. Niagara Chem. Div. of Food Mach. & Chem. Corp., (Fla. 1953); Bozeman v. City of St. Petersburg, 74 Fla. 336, 76 So. 894 (1917). In short, once special damages are shown, enforcement of the zoning ordinance is no longer an action purely within the discretion of the state.

Thus, if the Homeowners prevail on the merits, Boucher and its progeny entitle the Homeowners to a judicial injunction prohibiting Amace from continuing to operate an allegedly illegal yacht basin; Trianon likely prohibits the Homeowners from seeking damages from the City for its reluctance to enforce its zoning regulations, but it says nothing about the Homeowners' ability to stop the activity itself.

Additionally, the majority addresses itself to Count I (declaratory relief). But if separation of powers were a legally valid reason to dismiss the complaint, that basis would apply only to Count II (injunctive relief), in which the Homeowners sought enforcement of the City's zoning laws against the City and Amace. Notably, the City did not raise the issue of "separation of powers" either before the trial court or this Court, as it relates to either Count I or Count II. As Count II is pled as dependent on a finding in favor of the Homeowners in Count I, and the majority fails to discuss the issue of standing, which was the basis of the trial court's ruling on Count I below, and fails to address the Florida Supreme Court's opinions of Boucher and Renard, it is unclear how the majority can reach the issue at all.

Because there is no support for this alternative theory in the record, it is improper for the majority to rely upon it in affirming the trial court's dismissal of Count I. See Robertson v. State, (Fla. 2002) ("The key to the application of [the Tipsy Coachman doctrine] of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court."); State v. Gerry, (Fla. 5th DCA 2003).

The majority further overlooks the fact that Amace was a party to this suit. Even if the Homeowners could not seek judicial relief against the City, they retain their ability to seek a declaration that Amace's use of its property violates the local zoning ordinances and they retain their ability to enjoin Amace from further alleged illegal activity. See e.g., Boucher; Renard; Skaggs-Albertson's.

Indeed, the analysis by the majority imports the tort-based sovereign immunity doctrine of Trianon into an area long recognized by the Florida Supreme Court as subject to judicial enforcement against both municipalities and private parties. See Boucher; Renard; Skaggs-Albertson's; Fortunato. The majority expands the law of Florida here by extending the concept of municipal immunity from tort liability and damages to municipal immunity from declaratory and injunctive relief —and it immunizes Amace's conduct along the way.

Finally, the majority's attempt to cast aside Fortunato v. City of Coral Gables, (Fla. 1950), violates the Florida Supreme Court's express statement that it does not overrule precedent "sub silentio." See Arsali v. Chase Home Finance LLC, 121 So.3d 511 (Fla. 2013). It may well be that the Florida Supreme Court will move the law of this State to where the majority believes it should be, but it is beyond our jurisdiction to recede from that Court's existing precedent.

III. CONCLUSION

For the reasons stated above as to Count I, I find that the City waived the issue of standing. Alternatively, I conclude that special damages were not required to be pled. Moreover, even if special damages were required, Detournay and Randol sufficiently alleged special damages. Lastly, I find that the trial court erred in ruling on Count II, which, as pled, was entirely dependent on Count I. Accordingly, I dissent from the majority's decision and would reverse the order and final judgment on appeal.

Not final until disposition of timely filed motion for rehearing.

FootNotes

1. Although we respect the dissent's concern in this regard, we believe that the City's two and one half page argument in their answer brief citing to Trianon and contending "the City has prosecutorial discretion in whether or how to proceed" with its enforcement actions, coupled with the Homeowners' argument in their reply brief that the City should not have such discretion, is more than sufficient to raise the application of Trianon in this appeal.

2. See Valdes v. State, (Fla. 1999) ("This Court has long held that as the prosecuting officer, the state attorney has `complete discretion' in the decision to charge and prosecute, and the judiciary cannot interfere with this `discretionary executive function.'") (citations omitted); State v. Bloom, (Fla. 1986) ("Under Florida's constitution, the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute."); Johnson v. State, (Fla. 1975) ("[T]he discretion of the Attorney General in choosing whether to prosecute or not to prosecute, or to abandon a prosecution already started, is absolute."); Bess v. Reno, (Fla. 3d DCA 1990) (holding that the trial court did not err in refusing, in effect, to mandamus the state attorney to institute extradition proceedings); Thompson v. Reno, (Fla. 3d DCA 1989) (holding that the state attorney's discretion extends to civil actions as well as criminal actions); State v. Jogan, (Fla. 3d DCA 1980) (holding that the decision to nolle prosequi is vested solely in the state attorney's discretion and cannot be made or supervised by the courts); State v. C.C.B., (Fla. 5th DCA 1985) ("In the criminal justice system the discretion to prosecute or not is a pre-trial posture vested solely in the state attorney's discretion.").

3. That statute states as follows: 86.021. Power to construe Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

4. During the first day and a half of trial, the parties attempted to reach a settlement agreement. On appeal, the Homeowners argue that the trial court erred in failing to enforce the alleged settlement agreement reached by the parties. I would find this argument without merit.

5. Although not necessary to my conclusion on this point, I would note that the Homeowners' argument that they were denied due process when the trial court considered the City's "surprise" renewed motion to dismiss without notice has merit.

6. "The Florida Declaratory Judgment Act, chapter 86, Florida Statutes (2009), is remedial in nature and should be broadly construed." Garcia, 99 So. 3d at 544.

7. In contrast, RNA did not allege special damages sufficient to maintain suit. The second amended complaint alleges that the RNA is a "homeowners association representing the interests of its members who are concerned with protecting and preserving the residential neighborhood in the area of and adjacent to the illegal private yacht basin." Homeowners who do not live on the Mahi Waterway cannot argue that they suffer special damages resulting from Amace's activity. Had the issue not been waived, and if a declaratory judgment proceeding required special damages, I would have affirmed as to RNA.

8. In relevant part, Count II states as follows: If the court declares (in Count 1) that (1) the private yacht basin is operating contrary to the city's zoning regulations and (2) the city acted contrary to the requirements of its zoning regulations when it failed to close the illegal private yacht basin, plaintiffs request that the court grant permanent injunctive relief that would enjoin the operation of the private yacht basin which is the subject of this action.

9. Specifically, the sole reference made by the City to Trianon in its Answer Brief is as follows: "As the court found, municipalities have discretion as to enforcement of its codes. See Trianon Park Condo. Assoc. v. City of Hialeah, (Fla. 1985) (enforcement of law by regulatory officials such as building inspectors is discretionary)." (Answer Brief, p. 27). "In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved." Tillman v. State, (Fla. 1985).

10. The majority distinguishes the Florida Supreme Court's opinion in Fortunato v. City of Coral Gables, (Fla. 1950), by stating that it pre-dated Trianon and did not consider the principle of separation of powers. In Boucher, however, the Court explained that in Fortunato the plaintiff "carefully and in thorough detail delineated special and peculiar damages to himself which resulted from the violation of the setback requirements by his next door neighbor," which entitled him to proceed in equity. Boucher, 102 So. 2d at 136. More significantly, Fortunato is still good law and the fact that it pre-dates Trianon is of no moment because the Florida Supreme Court does not overrule itself sub silentio. Arsali v. Chase Home Fin. LLC, 121 So.3d 511 (Fla. 2013); see Puryear v. State, (Fla. 2002).