Cosentino v. Sarasota Cnty.

324 So.3d 964

John Michael COSENTINO and Reopen Beach Road, Inc., Appellants,

v.SARASOTA COUNTY ; Dennis W. Madden; Wendy Madden ; Wendy Madden as trustee of the Walther Family Trust dated 02/01/1996; William H. Caflisch, Sr., as trustee of the William Caflisch Declaration of Trust; and Sheila Sanchez Caflisch, as trustee of the Sheila Caflisch Declaration of Trust, Appellees.

No. 2D20-1355

District Court of Appeal of Florida, Second District.

June 11, 2021

Rehearing Denied September 21, 2021

John Michael Cosentino, pro se.

Janelle A. Weber of Manta Law, Tampa, (withdrew after briefing) for Appellant Reopen Beach Road, Inc.

Frederick J. Elbrecht, County Attorney, and David M. Pearce, Assistant County Attorney, Sarasota, for Appellee Sarasota County.

M. Lewis Hall, III, of Williams, Parker, Harrison, Dietz & Getzen, PLLC, Sarasota, for Appellees Dennis W. Madden, Wendy Madden, and Wendy Madden as trustee of the Walther Family Trust dated 02/01/96.

S. William Moore and Ryan C. Reese of Moore Bowman & Reese, P.A., Sarasota, for Appellees William H. Caflisch, Sr., as trustee of the William Caflisch Declaration of Trust, and Sheila Sanchez Caflisch, as trustee of the Sheila Caflisch Declaration of Trust.

Elizabeth Gomez-Mayo, Winter Park, (withdrew after briefing) for Amicus Curiae, Angela Briguglio.

Angela Briguglio, pro se.

ROTHSTEIN-YOUAKIM, Judge.

John Michael Cosentino and Reopen Beach Road, Inc., appeal the final judgment rendered against them in their various capacities as plaintiff, counter-defendant, third party defendants, cross-defendants, and intervenors—in short, denying them any relief whatsoever—in their efforts to undo two resolutions adopted by Sarasota County ("the County") concerning Beach Road on Siesta Key and to amend the county charter. We conclude that all of their arguments are meritless and warrant no further discussion except for one by Cosentino, which we discuss below.¹ Even that argument, however, ultimately affords Cosentino no relief. We therefore affirm the final judgment in toto.

In Count II of his second amended complaint, Cosentino sought declaratory and injunctive relief based, in part, on the County's alleged failure to comply with its notice obligations under section 336.10, Florida Statutes (2016). Cosentino claimed that the County had failed to publish the requisite notice of its adoption of the resolution vacating Beach Road ("resolution 2016-79") "within 30 days following its adoption,"² which he alleged had occurred at the public hearing on May 11, 2016, before the Board of County Commissioners.³

The County moved for summary judgment on Count II, arguing, in pertinent part, that "adoption" for purposes of section 336.10 means "rendition" as that term is defined under the Florida Rules of Appellate Procedure. See Fla. R. App. P. 9.020(h) ("An order is rendered when a signed, written order is filed with the clerk of the lower tribunal."). Consequently, although the public hearing on resolution 2016-79 had taken place on May 11, 2016, the resolution had not been "adopted" until the signed, written resolution had been filed with the Sarasota County Clerk of Court on June 27, 2016. And because the requisite notice had been published on July 2, 2016, the County argued, the notice had been timely published. The only caselaw that the County cited was Metropolitan Dade County v. Blumenthal , 675 So. 2d 598, 604 (Fla. 3d DCA 1995) (en banc), for the proposition that "[i]t is axiomatic that the County Commission speaks through its written Resolution." The County included with its motion a copy of the signed, written resolution bearing the Clerk's file stamp of June 27 on its front page.

Alternatively, the County argued that even if the notice had not been timely published, Cosentino was entitled to no relief because section 336.10 itself prescribed no sanction and Cosentino had wholly failed to allege prejudice resulting from the belated publication. The County stated that any delay in publication had been in good faith because "the original draft resolution presented at the public hearing on May 11, 2016, had to be amended to reflect the Board's direction."

Cosentino responded by pointing to the last page of the signed, written resolution that the County had filed with its motion. It bore the following:

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He argued that based on the County's failure to comply with section 336.10, the trial court should deny the County's motion for summary judgment and instead "reverse or remand" resolution 2016-79.

The trial court granted the County's motion, agreeing with the County that "[t]he deadline to complete post-hearing publication only begins to run when the resolution is rendered" and that "[t]he Board's decision is rendered when it has been filed with the Clerk pursuant to" rule 9.020(h). In so concluding, the court, like the County, cited Blumenthal , 675 So. 2d at 604.

On appeal, Cosentino argues that "[t]he trial Court legislated provisions into s. 336.10 that do not exist" and that "the Legislature knows the difference between rendered and adopted." Reviewing the trial court's conclusion de novo, see Savannah Capital, LLC v. Pitisci, Dowell & Markowitz , 313 So. 3d 953, 956 (Fla. 2d DCA 2021) ("[W]e review the trial court's order granting a motion for summary judgment de novo." (citing Sherry v. Regency Ins. Co. , 884 So. 2d 175, 177 (Fla. 2d DCA 2004) )), we agree with Cosentino. "It is axiomatic that when construing a statute, a court must first look to the statute's plain language," State v. Sampaio , 291 So. 3d 120, 123 (Fla. 4th DCA 2020), and the plain language of section 336.10 requires "adoption," not "rendition." Moreover, nowhere does section 336.10—or any other provision within chapter 336—even mention the rules of appellate procedure, let alone indicate that those rules inform the meaning of any of the words therein.

Furthermore, in relying on the Blumenthal , the County torpedoed its own argument. If it is indeed "axiomatic that the County Commission speaks through its written Resolution," Blumenthal , 675 So. 2d at 604, here we have a written resolution that states on its face that it was "duly adopted" on May 11, 2016. The County, therefore, wholly failed to establish as a matter of law that resolution 2016-79 was "adopted" only upon its rendition for appellate purposes, and the court erred in granting summary judgment on Count II on that basis.⁴

This error does not warrant reversal, however, because as the County alternatively argued, Cosentino failed even to allege prejudice. See Abraham v. Universal Ins. Co. of N. Am. , 120 So. 3d 114, 115 (Fla. 4th DCA 2013) (affirming entry of summary judgment on alternative basis supported by the record (citing Dade Cnty. Sch. Bd. v. Radio Station WQBA , 731 So. 2d 638, 644 (Fla. 1999) )). Rather, Cosentino's claim implicitly assumes that (1) strict compliance with section 336.10 is required and (2) failure to strictly comply renders the resolution void.

Cosentino has never identified any authority that supports these assumptions. And indeed, the authority is to the contrary: so long as due process has been afforded, strict compliance is unnecessary. See Bouldin v. Okaloosa County , 580 So. 2d 205, 209 (Fla. 1st DCA 1991) ("The obvious intent and purpose of [ sections 336.09 and 336.10 ] is to require the board of county commissioners to provide ample notice of a public hearing at which the road closing will be considered, and to afford all interested citizens a reasonable opportunity to participate and be heard. The process required to abandon or close a public road under those sections is similar in purpose to rulemaking under section 120.54 of the Florida Administrative Procedures Act."); see also Florida-Texas Freight, Inc. v. Hawkins , 379 So. 2d 944, 946 (Fla. 1979) ("The procedure envisioned by section 120.54(2)(a) does not, however, command adherence to form over substance. We agree with the [Public Service]...