NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
PIRATE'S TREASURE, INC., )
)
Appellant, )
)
v. ) Case No. 2D18-2774
)
CITY OF DUNEDIN, FLORIDA, a )
municipal corporation, and MATTHEW )
CAMPBELL, an individual, )
)
Appellees. )
)
Opinion filed August 16, 2019.
Appeal from the Circuit Court for Pinellas
County; Cynthia Newton, Judge.
David J. Melvin and Keathel Chauncey of
Fresh Legal Perspective, PL, Tampa, for
Appellant.
Jay Daigneault and Randol D. Mora of
Trask Daigneault, LLP, Clearwater, for
Appellee City of Dunedin.
Bennett C. Lofaro of Boyd Richards
Parker & Colonnelli, P.L., Tampa, for
Appellee Matthew Campbell.
SALARIO, Judge.
Pirate's Treasure, Inc. sued the City of Dunedin and its employee,
Matthew Campbell, over their handling of Pirate's Treasure's request for City approval
to redevelop real property. While the case was pending, Pirate's Treasure transferred
the property to Pirate's Cove Holdings, LLC. The City filed a motion for summary
judgment in which Mr. Campbell joined, arguing that upon the transfer to Pirate's Cove,
Pirate's Treasure lost any interest in the property and, as a consequence, lost standing
to maintain the suit. The trial court granted the motion and rendered a final judgment
accordingly. Because there are genuine issues of material fact about whether Pirate's
Treasure has an interest in the outcome of the controversy sufficient to support its
continued standing, we reverse and remand for further proceedings.
I.
The course of dealings between Pirate's Treasure and the City that led to
this dispute and the zoning and land use regulations applicable to those dealings, as
presented by the pleadings in the circuit court, are a pretty complex affair. In layman's
terms, here is what the reader needs to know. Pirate's Treasure used to own upland
and submerged property in the City upon which it operated a marina. In 2006, it began
having discussions with the City about the zoning and land use approvals it would need
to expand the marina and to build a restaurant on the upland property. On the City's
end, Mr. Campbell played a key role in those discussions.
In Pirate's Treasure's telling, the City's approval of the proposed
redevelopment looked like a sure thing. Mr. Campbell and other City employees told it
that the marina expansion and the restaurant construction would both be approved.
Buoyed by those assurances, Pirate's Treasure hired an engineering firm to prepare a
site plan for the City's approval. Throughout 2008 and early 2009, the approval process
moved smoothly, and—again, we stress, in Pirate's Treasure's telling—the City assured
it that the redevelopment was approved subject to a couple of minor issues. Pirate's
-2-
Treasure demolished an existing structure on the property to prepare for the
redevelopment that it believed was a lock in terms of City approval.
Things hit a snag in mid-2009, however, precipitated in part by objections
raised by an owner of property next to Pirate's Treasure's. Although the City officially
approved the marina expansion in 2010, it told Pirate's Treasure in 2011 that it viewed
the application for approval of the restaurant construction as having been terminated
and that it would have to submit a new application for that part of the proposed
redevelopment. Pirate's Treasure considered this a big problem because, among other
reasons, the City also took the position that revisions to the City's zoning and land use
regulations that went into effect while the original application was pending would be
deemed to apply to any new application.
In September 2011, Pirate's Treasure filed a complaint against the City in
the circuit court seeking a declaratory judgment that its application for approval of the
restaurant construction was never lawfully terminated and that the zoning and land use
regulations in effect at the time its original application was filed governed the approval
process. It also sought a writ of mandamus compelling the City to complete its review
of the application for approval for the restaurant construction within a reasonable time.
The case was scheduled for a trial in April 2013 but was taken off calendar with the
agreement of the parties. Things remained dormant for quite some time after that.
On December 3, 2014, Pirate's Treasure executed a warranty deed
conveying the property at issue to Pirate's Cove, a limited liability company that appears
to be related in some way to Pirate's Treasure. Two weeks later, on December 17,
2014, Pirate's Treasure filed an amended complaint in which it continued to allege that it
was the owner of the property. The amended complaint repleaded the claims for
-3-
declaratory relief and a writ of mandamus asserted in the original and also included new
claims for negligent misrepresentation and fraud against both the City and Mr.
Campbell, which alleged that Pirate's Treasure suffered damages by taking actions
such as the commencement of construction in reliance on the City's and Mr. Campbell's
alleged representations about the approval of the redevelopment.
The new tort claims sparked litigation between Pirate's Treasure and the
City over sovereign immunity. The circuit court dismissed the fraud claim against the
City on that basis but declined to dismiss the negligent misrepresentation claim. On
July 11, 2017, Pirate's Treasure filed a second amended complaint that, in accord with
the trial court's dismissal order, deleted the fraud claim against the City but that was
identical to its predecessor in all other important respects—including the allegation that
Pirate's Treasure owned the property at issue. The City responded with a motion for
summary judgment arguing that Pirate's Treasure lost standing to maintain this action
because it no longer owns the property—having transferred it to Pirate's Cove back in
2014. Mr. Campbell joined in the City's motion.
The City supported its motion with a copy of the warranty deed by which
Pirate's Treasure conveyed the property to Pirate's Cove and a set of requests for
admission it served on Pirate's Treasure—to which Pirate's Treasure failed to respond
and thus technically admitted—establishing that Pirate's Treasure did not own the
property any longer. Pirate's Treasure responded with an affidavit from Mark Swick, a
representative of Pirate's Cove, in which Mr. Swick swore that Pirate's Treasure had "at
all times been authorized to act on behalf of [Pirate's Cove] in connection with the
renovation of the property" and that since the transfer of the property in 2014, Pirate's
Treasure "has been an authorized representative of [Pirate's Cove] for the purpose of
-4-
submitting, managing, and obtaining building permits, inspections, applications, site
plans, and proposed construction in connection with the renovation." Pirate's Treasure
argued that through "excusable neglect and oversight" it failed to update the complaint
to reflect the change in ownership and argued (1) that the law did not require it to have
a present interest in the property for it to sustain its tort claims and (2) that it had an
interest sufficient to support its standing to maintain the declaratory judgment and
mandamus claims because it was Pirate's Cove's authorized agent. While the motion
for summary judgment was pending, Pirate's Treasure filed a motion for leave to file a
third amended complaint to correct its allegations as to the ownership of the property.
The trial court rendered an unelaborated order granting the City's motion
for summary judgment and, subsequently, a final judgment in favor of the City and Mr.
Campbell. It never passed on Pirate's Treasure's motion for leave to file a third
amended complaint. This is Pirate's Treasure's timely appeal. While this appeal was
pending, this court rendered an opinion that reversed the circuit court's decision not to
dismiss the negligent misrepresentation claim against the City, holding that the City did
not owe Pirate's Treasure any duty of care. See City of Dunedin v. Pirate's Treasure,
Inc.,
255 So. 3d 902, 905-06 (Fla. 2d DCA 2018). As a result, the two tort claims
involved in this appeal are relevant only as to Mr. Campbell.
II.
We review an order granting summary judgment de novo. Fields v.
Devereux Found., Inc.,
244 So. 3d 1193, 1195 (Fla. 2d DCA 2018). A party is entitled
to summary judgment when "the pleadings and summary judgment evidence on file
show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c). The procedure is
-5-
well settled. Initially, a movant seeking summary judgment must prove through
evidence—affidavits, depositions, interrogatory answers, and the like, see Fla. R. Civ.
P. 1.510(c)—that there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. See
Fields, 244 So. 3d at 1195-96 (explaining
that the movant's burden cannot be satisfied by pointing to an absence of evidence to
support the nonmovant's case (quoting Derogatis v. Fawcett Mem'l Hosp.,
892 So. 2d
1079, 1083 (Fla. 2d DCA 2004))). If it does so, the burden shifts to the nonmovant to
present evidence showing that a genuine issue of material fact remains to be tried. See
McNabb v. Taylor Elevator Corp.,
203 So. 3d 184, 185 (Fla. 2d DCA 2016) (citing First
N. Am. Nat'l Bank v. Hummel,
825 So. 2d 502, 503 (Fla. 2d DCA 2002)). The
nonmovant's summary judgment evidence need not, however, be sufficient to sustain a
verdict in its favor at a trial. 4 Corners Ins., Inc. v. Sun Publ'ns of Fla., Inc.,
5 So. 3d
780, 784 (Fla. 2d DCA 2009).
Here, the legal question that defines whether there is a genuine issue of
material fact is whether Pirate's Treasure's transfer of the property at issue to Pirate's
Cove divested Pirate's Treasure of standing to maintain this action. In Florida, a party
has standing when it has "a sufficient interest at stake in the controversy which will be
affected by the outcome of the litigation." Jamlynn Invs. Corp. v. San Marco
Residences of Marco Condo. Ass'n,
544 So. 2d 1080, 1082 (Fla. 2d DCA 1989); see
also Gen. Dev. Corp. v. Kirk,
251 So. 2d 284, 286 (Fla. 2d DCA 1971) ("Standing is, in
the final analysis, that sufficient interest in the outcome of litigation which will warrant
the court's entertaining it."). Although this conception of standing is less demanding
than the conception of standing that prevails in the federal courts, see Dep't of Revenue
v. Kuhnlein, 646 So. 2d 717, 720 (Fla. 1994), it has been understood to mean that a
-6-
party must "demonstrate a direct and articulable stake in the outcome of a controversy"
to open the courthouse doors, Brown v. Firestone,
382 So. 2d 654, 662 (Fla. 1980).
See also Whitburn, LLC v. Wells Fargo Bank, N.A.,
190 So. 3d 1087, 1091 (Fla. 2d
DCA 2015) ("[T]o have standing, a party must demonstrate a direct and articulable
interest in the controversy, which will be affected by the outcome of the litigation."
(quoting Centerstate Bank Cent. Fla., N.A. v. Krause, 87 So. 3d 25, 28 (Fla. 5th DCA
2012))). In determining whether a party has such an interest in the judicial resolution of
a dispute, it is helpful to ask whether a decision in the case will actually resolve the
rights and obligations of the parties, in which case standing likely exists, or simply will
produce an advisory opinion, in which case it does not. See
Kuhnlein, 646 So. 2d at
721; Warren Tech., Inc. v. Carrier Corp.,
937 So. 2d 1141, 1142 (Fla. 3d DCA 2006).
In the trial court and here, the City and Mr. Campbell have argued that any
interest Pirate's Treasure had in the dispute over the City's approval of the proposed
redevelopment vanished when it transferred the property to Pirate's Cove because
distinct legal entities like Pirate's Treasure and Pirate's Cove, even if related, are not
entitled to assert each other's rights in litigation. That is true, as far as it goes. See,
e.g., Cellco P'ship v. Kimbler,
68 So. 3d 914, 918 (Fla. 2d DCA 2011) ("Further, Cellco
and Alltel are separate legal entities, and as such, Cellco—the parent corporation—
cannot 'exercise the rights of its subsidiary.' " (quoting Am. Int'l Grp., Inc. v. Cornerstone
Bus., Inc., 872 So. 2d 333, 336 (Fla. 2d DCA 2004))). But saying that Pirate's Treasure
no longer has any interest in the property sought to be redeveloped is not the same as
saying that Pirate's Treasure no longer has any interest in the outcome of this lawsuit.
To assess whether the latter is true and susceptible of being decided by way of a
motion for summary judgment, we need to look at each claim Pirate's Treasure has
-7-
alleged and ask whether the record "conclusively shows" that Pirate's Treasure lacks
standing to assert that claim "as a matter of law." See Hervey v. Alfonso,
650 So. 2d
644, 646 (Fla. 2d DCA 1995) (discussing summary judgment standards).
With respect to the claims for fraud and negligent misrepresentation, it is
clear that Mr. Campbell—the only defendant against whom these claims remain
pending—has not carried his initial burden of demonstrating the absence of any genuine
issue of material fact. Simply put, Mr. Campbell has failed to demonstrate that the legal
or factual basis for Pirate's Treasure's assertion of these claims is in any way contingent
on its continued ownership of the property. On the contrary, as pleaded, these are
claims to recover damages that Pirate's Treasure (not Pirate's Cove) suffered because
Pirate's Treasure (not Pirate's Cove) relied upon alleged misstatements Mr. Campbell
made to Pirate's Treasure (not Pirate's Cove). On their face, the legal elements of the
causes of action for fraud and negligent misrepresentation do not require that Pirate's
Treasure continue to own the property in order to recover for economic losses incurred
in these circumstances. See Butler v. Yusem,
44 So. 3d 102, 105 (Fla. 2d DCA 2010)
(stating that the elements of fraud are (1) a false statement of material fact, (2) the
defendant's knowledge that the statement is false, (3) the defendant's intention that the
statement induce reliance, and (4) consequent injury by the party acting in reliance on
the representation); Baggett v. Electricians Local 915 Credit Union,
620 So. 2d 784, 786
(Fla. 2d DCA 1993) (stating substantially identical elements for negligent
misrepresentation except that the defendant's state of mind must be either intentional or
negligent and the plaintiff must have acted in justifiable reliance). And Mr. Campbell
has not pointed to anything in the summary judgment record to show that the facts of
-8-
this case are such as to require continued ownership of the property by Pirate's
Treasure in order to pursue these kinds of claims for historical damages.
Things might be different if, for example, there had been summary
judgment evidence showing that Pirate's Treasure assigned or transferred its causes of
action for damages related to the renovation of the property to Pirate's Cove when it
transferred the property to Pirate's Cove. Then we might say that Pirate's Treasure lost
the interest in the outcome of the litigation that it once had. But there was no such
summary judgment evidence here. What the record in this case shows instead is that
Pirate's Treasure is seeking to recover from Mr. Campbell for its own economic injuries
under recognized tort theories that, if proved at trial, permit a court to redress those
injuries. Mr. Campbell failed to prove that there was no genuine dispute that Pirate's
Treasure lacks standing to do that, see Sun States Utils., Inc. v. Destin Water Users,
Inc.,
696 So. 2d 944, 945 n.1 (Fla. 1st DCA 1997), and he was thus not entitled to the
summary judgment on the tort claims that he received in the trial court.
The summary judgment on the claims for declaratory and mandamus relief
against the City is likewise infirm because Mr. Swick's affidavit raises a fact issue as to
whether Pirate's Treasure is Pirate's Cove's authorized representative agent for
purposes of maintaining this litigation to secure the City's approval of the restaurant-
related redevelopment. As a legal matter, a party may have standing to maintain a suit
not only when the party itself has the required interest in the controversy but also where
the party represents another person who has the required interest. Elston/Leetsdale,
LLC v. CWCapital Asset Mgmt. LLC,
87 So. 3d 14, 17 (Fla. 4th DCA 2012) (quoting
Kumar Corp. v. Nopal Lines, Ltd.,
462 So. 2d 1178, 1183 (Fla. 3d DCA 1985)).
Because Florida Rule of Civil Procedure 1.120(a) permits an action to be prosecuted by
-9-
someone representing the real party in interest in a dispute, the courts have held that
"where a plaintiff . . . is maintaining the action on behalf of the real party in interest, its
action cannot be terminated on the ground that it lacks standing."
Kumar, 462 So. 2d at
1183; see also St. Martin's Episcopal Church v. Prudential-Bache Sec., Inc.,
613 So. 2d
108, 109 (Fla. 4th DCA 1993) ("Issues of standing, as a prudential question anyway, are
undoubtedly affected by Florida Rule of Civil Procedure 1.210(a) . . . ." (footnote
omitted)).
Here, the declaratory judgment count seeks to resolve the questions of
whether the application for approval of the restaurant portion of the redevelopment was
terminated and whether new zoning regulations would apply to any new application.
The mandamus count seeks to compel a ruling from the City with respect to the
restaurant portion of the redevelopment. Mr. Swick, a representative of Pirate's Cove,
has submitted an affidavit establishing that Pirate's Treasure is authorized to act on
behalf of Pirate's Cove with respect to exactly these matters—the redevelopment of the
property to include a restaurant, in general, and application and permitting matters, in
particular. Under the summary judgment standard and in the absence of any evidence
to the contrary from the City or Mr. Campbell, Mr. Swick's affidavit creates a genuine
issue of material fact as to whether Pirate's Treasure is authorized to maintain this
action on behalf of Pirate's Cove. See Sawyerr v. Se. Univ., Inc., 993 So. 2d 141, 142
(Fla. 2d DCA 2008) (stating that, on a motion for summary judgment, "[a]ll doubts and
inferences shall be resolved in favor of the nonmoving party").
The City relies extensively on City of Winter Park v. Rich,
692 So. 2d 986,
986-87 (Fla. 5th DCA 1997), but that case is distinguishable (among other reasons)
precisely because there was no evidence that the plaintiff was acting on behalf of a
- 10 -
property owner. In Rich, a property owner received a writ of certiorari from a circuit
court with respect to a local government's denial of his application for a variance from a
comprehensive plan.
Id. at 986. Before the circuit court granted relief, the property
owner announced that he sold the property.
Id. On the local government's second-tier
certiorari petition, the Fifth District held that the former property owner "lost standing . . .
because he no longer owned the property at issue."
Id. at 986-87. It emphasized that
(1) the former property owner did attempt to amend his pleadings to address the
question of ownership and (2) the former property owner did not attempt to assert that
he sold the property for less than its value because of the local government's denial of
the variance—a theory the Fifth District evidently thought would have given him a
continuing interest in the outcome of the proceedings.
Id. at 986.
In contrast to the former property owner in Rich, Pirate's Treasure both
attempted to amend its complaint in the circuit court to clarify the question of ownership
and offered summary judgment evidence to support a theory of standing that was not
dependent on its continued ownership of the property—its acting as a representative of
Pirate's Cove. It also bears emphasis that Rich was not a case to which the summary
judgment standard applied.1 The very most that Rich stands for is that a property owner
who challenges a local government's land-use decision risks losing standing to obtain a
1Another case the City emphasizes, Ahearn v. Mayo Clinic,
180 So. 3d
165, 174 (Fla. 1st DCA 2015), did affirm a summary judgment finding that a class
representative lost standing to maintain a class action challenging certain charges
imposed by the defendant when the defendant waived the class representative's
payment of the charges and offered to pay his attorneys' fees and costs. That decision
has no bearing here because, unlike the facts presented on the summary judgment
record in this case, there was no summary judgment evidence that the plaintiff in
Ahearn continued to have standing on some basis other than his being indebted to the
defendant for the disputed charge.
- 11 -
judicial resolution of the controversy if it sells the property while the dispute is pending
and has no legally valid alternative theory of standing. For the reasons we have
explained, that principle does not resolve this case on the summary judgment record
developed in the circuit court.
The City further argues that the doctrine of collateral estoppel precludes
Pirate's Treasure from litigating the question of standing because that question was
decided adversely to it in another case it brought against the City. That is meritless.
The City did not present any summary judgment evidence—nothing at all—about the
other case that would have permitted the trial court, or this court reviewing the trial
court's final judgment, to determine whether the elements of collateral estoppel are
satisfied. See Goodman v. Aldrich & Ramsey Enters., Inc.,
804 So. 2d 544, 546-47
(Fla. 2d DCA 2002) (setting forth the collateral estoppel requirements as follows: "(1) an
identical issue must have been presented in the prior proceeding; (2) the issue must
have been a crucial and necessary part of the prior determination; (3) there must have
been a full and fair opportunity to litigate that issue; (4) the parties in the two
proceedings must be identical; and (5) the issues must have been actually litigated.").
Even if we accept—as Pirate's Treasure concedes—that the parties were identical in
both actions, the summary judgment record tells us nothing, most critically, about
whether the identical issue (standing to litigate a declaratory judgment and mandamus
claim materially identical to the claims here) was actually litigated and decided in the
earlier case. See Neapolitan Enters., LLC v. City of Naples,
185 So. 3d 585, 591 (Fla.
2d DCA 2016); Porter v. Saddlebrook Resorts, Inc.,
679 So. 2d 1212, 1214-15 (Fla. 2d
DCA 1996). All we think we know about the prior litigation, we have learned only from
the arguments of the City's counsel at the summary judgment hearing, and argument of
- 12 -
counsel is not competent evidence. See Heller v. Bank of Am., NA,
209 So. 3d 641,
644 (Fla. 2d DCA 2017). Collateral estoppel provides no basis to affirm the circuit
court's summary judgment.
III.
On the summary judgment record developed in the circuit court and the
arguments briefed in this one, it is not possible to say as a matter of law that Pirate's
Treasure lacks standing to continue to maintain this action.2 Accordingly, we reverse
the final summary judgment in favor of the City and Mr. Campbell and remand the case
to the trial court for further proceedings consistent with this opinion.
Reversed and remanded.
NORTHCUTT and SLEET, JJ., Concur.
2This case potentially presents other issues that were neither litigated in
the circuit court nor argued here, including (1) whether and to what extent rule 1.260(c),
which governs proceedings in the circuit court when there has been a transfer of
interest, is applicable here, see Schmidt v. Mueller,
335 So. 2d 630, 631 (Fla. 2d DCA
1976), and (2) whether Pirate's Treasure might have standing to pursue the claims for
declaratory and mandamus relief in its own right on some other theory, such as an
economic benefit it has been denied by the absence of city approval for the restaurant
part of the redevelopment, cf.
Rich, 692 So. 2d at 986. We express no opinion on these
matters. We simply note that our silence about them—or any other matter not explicitly
addressed in this opinion—should not be understood to have decided them by
implication.
- 13 -
