CORRECTIONS CORPORATION OF AMERICA v. CITY OF PEMBROKE PINES , 230 So. 3d 477 ( 2017 )


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  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    CORRECTIONS CORPORATION OF AMERICA, INC., a Foreign
    Corporation,
    Appellant,
    v.
    CITY OF PEMBROKE PINES, a Florida Municipal Corporation; and CCA
    PROPERTIES OF AMERICA, LLC, a Tennessee Limited Liability
    Company,
    Appellees.
    No. 4D14-4815
    [November 1, 2017]
    Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
    Broward County; Carol-Lisa Philips, Judge; L.T. Case No. 12-007337
    CACE (25).
    Leonard K. Samuels, Paul S. Figg and Ashley Dillman Bruce of Berger
    Singerman LLP, Fort Lauderdale, for appellant.
    Usher L. Brown and Victor Kline of Greenspoon Marder, P.A., Orlando,
    for appellee City of Pembroke Pines.
    Alfredo Marquez-Sterling and Keith M. Poliakoff of Arnstein & Lehr LLP,
    Fort Lauderdale, for Amicus Curiae the Town of Southwest Ranches.
    ON MOTION FOR REHEARING
    CIKLIN, J.
    We grant appellee’s motion for rehearing in part, withdraw our
    previously issued opinion, and substitute the following in its place to
    correct an erroneous factual reference.
    Corrections Corporation of America (“CCA”) appeals a trial court
    order—sounding in declaratory relief—holding that the City of Pembroke
    Pines did not have a duty to provide water and sewer services to CCA’s
    property site, as well as a final order dismissing CCA’s counterclaims.
    Because we find that Pembroke Pines affirmatively expressed its intention
    to assume such a duty, we reverse the order determining that Pembroke
    Pines did not. Because it appears the trial court dismissed CCA’s
    counterclaims based on its determination that Pembroke Pines did not
    have a duty to CCA, we also reverse the order dismissing CCA’s
    counterclaims.
    Background
    CCA sought sewer and water services from Pembroke Pines for its
    property located in the Town of Southwest Ranches but adjacent to
    Pembroke Pines (“the CCA site”). Pembroke Pines operates potable water
    and sewer systems that service properties within its boundaries, as well
    as some properties outside of those boundaries. Those services provided
    outside of the boundaries extend to a limited number of residential and
    commercial properties. Southwest Ranches does not have potable water
    or sewer systems to service its residents, and Pembroke Pines is the only
    provider in the area. The CCA site is surrounded by four other properties,
    all of which are, or were at one time, serviced by Pembroke Pines’ water or
    sewer systems (or both). Only one of these properties is actually located
    within the boundaries of Pembroke Pines. 1 At all times relevant to this
    dispute, Pembroke Pines admitted that it had the capacity and
    infrastructure in place to provide water and sewer services to the CCA site
    through its systems that abut the site.
    In 2005, CCA and Southwest Ranches entered into an agreement
    concerning the development of a correctional facility on the CCA site. The
    agreement provided that “all required water, sewer and other utility
    services are available” at the CCA site. CCA was advised that while a water
    and sewer agreement with Pembroke Pines would be required, it was
    unclear whether the Pembroke Pines City Commission would grant those
    services. However, later in 2005, Southwest Ranches entered into an
    interlocal agreement with Pembroke Pines regarding local roadways and
    other matters (“Roadways ILA”), in which Pembroke Pines agreed not to
    interfere with the development or operation of CCA’s jail facility:
    Jail Facility. [Pembroke Pines] shall not interfere with [CCA’s],
    or its successors or assigns, development and/or operation of
    the jail facility, or with [Southwest Ranches]’s Agreement with
    [CCA] concerning development of same.
    1One of the properties was a women’s prison, which is no longer operational.
    Another property is a future county jail site. Pembroke Pines also provides water
    and sewer services to Everglades National Park, which is located outside of the
    boundaries, and near the CCA site.
    2
    In 2011, Immigration and Customs Enforcement (“ICE”) tentatively
    selected the CCA site to build a new detention facility. A few days later,
    Pembroke Pines and Southwest Ranches entered into another interlocal
    agreement concerning emergency medical and fire services (the “EMS ILA”)
    that provided in pertinent part:
    Jail Facility: [Pembroke Pines] acknowledges that it has
    sufficient capacity to deliver emergency medical protection
    and fire prevention services to [Southwest Ranches]’s future
    2,500 bed detention/corrections facility, located on property
    currently owned by [CCA]. [Pembroke Pines] agrees to timely
    provide Broward County, upon request, any documentation
    that Broward County may require to acknowledge that
    Pembroke Pines has the capacity, ability, and the willingness
    to service this facility under the terms and conditions
    contained herein. . . . Further, [Pembroke Pines] agrees that
    it has sufficient capacity to provide water and sewer service to
    [Southwest         Ranches]’s        future       2,500        bed
    detention/corrections facility (approximately 500,000 gross
    square feet of floor area), and that it will expeditiously approve
    a water/waste water utility agreement to provide such service,
    at [Pembroke Pines]’s then prevailing rate, in accordance with
    state law ([Pembroke Pines]’s rate + surcharge).
    (Emphasis added). In a special meeting on June 27, 2011, the Pembroke
    Pines City Commission voted on and approved the EMS ILA in Resolution
    No. 3312.
    Some five months later, in December 2011, the City Commission
    passed yet another affirmative motion, that one being “to approve direction
    that, should CCA come forward with a request for Pembroke Pines to
    provide them water and sewer service, that the water and sewer agreement
    stipulate that it would be for not more than 1,500 beds based on the
    Engineer’s report” (the “December 2011 Motion”). CCA then submitted to
    Pembroke Pines a proposed Water and Sewer Installation and Service
    Agreement (the “W & S Agreement”) for a 1,500–bed facility, and requested
    that the matter be finalized at the first available City Commission meeting.
    Pursuant to the EMS ILA, the Pembroke Pines city attorney and the
    Pembroke Pines city manager agreed on the contractual terms with CCA
    and the W & S Agreement was then submitted to the City Commission. In
    an abrupt departure from the numerous manifestations of intent
    expressed by the Pembroke Pines City Commission over the previous six
    years, the City Commission did not vote on the W & S Agreement and quite
    3
    to the contrary, formally adopted a resolution expressing its opposition to
    erecting the ICE detention center on the CCA site. In a later meeting, the
    City Commission voted to both terminate the EMS ILA and, because it was
    “in doubt as to its rights and obligations,” and to direct the city attorney
    to seek declaratory relief.
    In its action for declaratory judgment, Pembroke Pines sought a ruling
    that it was not required to provide CCA with water and sewer services or,
    if it was required to provide utility services, a determination of “whether
    there [were] any limitations on the obligation to provide service.” Following
    trial, the court entered an order determining that Pembroke Pines did not,
    in fact, have a duty to provide water and sewer services to CCA.
    Analysis
    On appeal, CCA argues that Pembroke Pines assumed a legally
    enforceable duty to provide the CCA site with those services by expressly
    manifesting a desire or intent to provide the services. CCA maintains the
    evidence at trial established that the ongoing conduct of Pembroke Pines
    created a duty to provide utilities. As such, the trial court’s rulings
    concerned a question of fact that “must be sustained if supported by
    competent substantial evidence.” Bellino v. W & W Lumber & Bldg.
    Supplies, Inc., 
    902 So. 2d 829
    , 832 (Fla. 4th DCA 2005) (quoting State v.
    Glatzmayer, 
    789 So. 2d 297
    , 301 n.7 (Fla. 2001)). We agree with CCA.
    As a general rule, “a municipality has no duty to supply services to
    areas outside its boundaries.” Allen’s Creek Props., Inc. v. City of
    Clearwater, 
    679 So. 2d 1172
    , 1174 (Fla. 1996). In Allen’s Creek, the
    Florida Supreme Court recognized exceptions to this general rule where
    (1) a municipality has agreed to extend its services by contract, and (2)
    where a municipality has assumed a duty to provide such services through
    its conduct. 
    Id. at 1175-76
    .
    With regard to the conduct exception, the court explained:
    According to the jurisdictions that recognize this exception, a
    municipality that holds itself out as a public utility for a
    particular area outside its city limits has a duty to supply
    everyone in that area. . . .
    We agree that through its conduct a municipality may
    assume the legal duty to provide reasonably adequate services
    for reasonable compensation to all of the public in an
    unincorporated area. See City of Winter Park v. Southern
    4
    States Utilities, Inc., 
    540 So. 2d 178
    , 180 (Fla. 5th DCA 1989)
    (city’s passage of ordinance requiring property owners outside
    the city but within a zone designated by the ordinance to
    connect to the city’s sewer service when available was conduct
    sufficient to bring into effect law applicable to public utilities).
    We add however that the conduct must expressly manifest the
    municipality’s desire or intent to assume that duty.              A
    municipality’s decision to provide service without restriction
    in an area outside its boundaries would meet this
    requirement.
    Id. at 1176 (emphasis added).
    Allen’s Creek presents a scenario somewhat similar to the one at hand.
    There, Allen’s Creek owned a parcel of land located in the unincorporated
    area of Pinellas County, but adjacent to Clearwater. Id. at 1174. When
    Allen’s Creek submitted a site development plan to Pinellas County,
    Pinellas officials directed Allen’s Creek to Clearwater for sewer services
    because the parcel was located within Clearwater’s sanitary sewer service
    district. Id. Clearwater informed Allen’s Creek that it would have to
    consent to annexation before receiving sewer services. Id. Allen’s Creek
    declined and filed suit for declaratory judgment. Id.
    On appeal to the Florida Supreme Court, Allen’s Creek argued that the
    conduct exception to the general rule applied, as Clearwater had assumed
    an obligation to provide sewer service in its designated service area
    through the Central Pinellas County 201 Facilities Plan (“201 Plan”) and
    its interlocal agreement with the City of Largo. Id. at 1175-76. The
    interlocal agreement between Clearwater and the City of Largo designated
    service areas and stated, “The parties shall have the exclusive right to
    provide wholesale and retail sanitary sewer service within the area
    allocated to such part and further agree not to compete with each other as
    to the provision of such sewer service outside their designated area.” Id.
    at 1175. 2
    The 201 Plan was created in connection with the Federal Water
    Pollution Control Act of 1972, the goal of which was “to eliminate the
    discharge of pollutants into navigable waters by 1985,” and a provision of
    which was federal “funding for the research and development of
    wastewater treatment management plans.” Id. at 1174. Within the 201
    2The court clarified that the use of the word “exclusive” to describe the service
    areas is misleading, because Allen’s Creek could have sought services from
    alternative sources. Id. at 1176 n.5.
    5
    Plan, “service areas” were designated “to determine the scope of facilities
    needed in the future.” Id. Allen’s Creek’s property was within Clearwater’s
    service area as designated by the plan. Id. Clearwater approved the 201
    Plan by local resolution in 1978, but the EPA rejected it, so the plan was
    never implemented and Clearwater proceeded with development of
    alternative methods for wastewater disposal. Id.
    The supreme court declined to extend the conduct exception to Allen’s
    Creek, reasoning:
    [N]othing in either the Plan or agreement affirmatively states
    that Clearwater will provide services to the unincorporated
    area. Nor do these agreements preclude those located outside
    Clearwater’s city limits but within its service area from
    seeking services from an alternative source.
    ....
    . . . We find that the agreements entered by Clearwater in
    this case did not affirmatively express the City’s intent to
    supply sewer service to the unincorporated portion of its sewer
    service area. Nor did Clearwater engage in any other conduct
    that expressed the intent to serve this area.
    Id. at 1176-77 (emphasis added). The court concluded that Clearwater’s
    annexation requirements were therefore permissible, so long as the
    requirements were reasonably justified and consistently applied. Id.
    While similar to the facts of the instant case, Allen’s Creek is somewhat
    distinguishable. There, the 201 Plan and interlocal agreement on which
    Allen’s Creek relied were in place before it requested service from the city.
    As an apparent consequence, the court looked to the agreements at issue
    for “affirmative[] state[ments] that Clearwater will provide services to the
    unincorporated area.” Id. at 1176. In other words, the court reviewed the
    documents for expressions of Clearwater’s intent to provide utility services
    to anyone located within the specific, unincorporated service area. Id.
    Here, on the other hand, CCA relies on documents specifically
    addressing the CCA site. Applying Allen’s Creek to the agreements at
    hand, we find direct expressions of intent to provide services to the area
    at issue in the EMS ILA:
    Jail Facility: . . . [Pembroke Pines] agrees to timely provide
    Broward County, upon request, any documentation that
    6
    Broward County may require to acknowledge that Pembroke
    Pines has the capacity, ability, and the willingness to service
    this facility . . . . Further, [Pembroke Pines] agrees that it has
    sufficient capacity to provide water and sewer service to
    [Southwest            Ranches]’s     future       2,500        bed
    detention/corrections facility (approximately 500,000 gross
    square feet of floor area), and that it will expeditiously approve
    a water/waste water utility agreement to provide such service,
    at [Pembroke Pines]’s then prevailing rate, in accordance with
    state law ([Pembroke Pines]’s rate + surcharge).
    (Emphasis added). By including a statement that it would “approve a
    water/waste water agreement to provide such service,” Pembroke Pines
    affirmatively and expressly manifested its desire and intent to assume that
    duty.
    Further, although they may not constitute affirmative expressions of
    intent to provide water and sewer service, other actions of the City of
    Pembroke Pines indicated its willingness to provide services to the CCA
    site. Pembroke Pines provided these services to all surrounding sites.
    Also, knowing that it was the only water and sewer service provider in the
    area, Pembroke Pines agreed in the Roadways ILA that it “shall not
    interfere with [CCA’s] . . . development and/or operation of the jail facility.”
    Finally, Pembroke Pines indicated its willingness to provide these services
    by the City Commission’s passage of the December 2011 motion to direct
    CCA to limit its request for water and sewer services to a 1,500-bed facility.
    In fact, Pembroke Pines’s procedures as outlined in its Code of
    Ordinances support our finding of an express manifestation of intent. The
    Code specifies that “property located outside the city limits shall not be
    allowed to connect to a city utility system unless the connection is
    authorized by the City Commission,” and that “[n]o action of the
    Commission . . . shall be valid or binding unless adopted by the affirmative
    vote of three (3) members of the Commission.” See Pembroke Pines, Fla.,
    Code of Ordinances §§ 3.07(e), 50.10(B). While the Commission did not
    vote on CCA’s proposed W & S Agreement, which provided the negotiated
    terms and conditions of utility services, it did vote on and approve the EMS
    ILA in Resolution No. 3312, in which the City agreed that it would approve
    a water/wastewater utility agreement. As a consequence of the City
    Commission’s approval of the EMS ILA, CCA may have reasonably
    expected that Pembroke Pines’s agreement to provide utility services was
    valid and binding.
    Respectfully, the dissent misses the point and instead focuses its
    7
    analysis on the question of whether a basic enforceable contract was
    formed (or whether it was just “an agreement to agree”) to reach its
    conclusion that Pembroke Pines is not bound to provide water and sewer
    services to CCA. We are bound by the principles of law outlined in Allen’s
    Creek, which clearly elevate the issue in this particular case beyond simple
    contractual interpretation. The ILA is not a contract between the parties
    to this action, and therefore analysis of it as such is misplaced and is
    simply an irrelevant exercise. Allen’s Creek does not direct us to ascertain
    the enforceability of the ILA as a contract; instead, it compels us to look for
    conduct that “expressly manifest[s] the municipality’s desire or intent to
    assume that duty.” See 
    679 So. 2d at 1176
    . We find such an express
    manifestation in the language of the EMS ILA and in the City Commission’s
    passage of a resolution approving the EMS ILA—plus the numerous other
    forms of assent discussed herein.
    Consequently, we find that the conduct exception to the general rule
    that a municipality has no duty to supply services to areas outside its
    boundaries applies in the instant case. We reverse the trial court’s
    determination to the contrary.
    Reversed and remanded for further proceedings.
    TAYLOR, J., concurs.
    KLINGENSMITH, J., dissents with opinion.
    KLINGENSMITH, J., dissenting.
    Although municipalities typically do not have a duty to supply services
    to areas outside their boundaries, I recognize that a municipality may be
    required to supply services outside its boundaries if its conduct expressly
    manifested the desire or intent to assume such a duty. See Allen’s Creek
    Props., Inc. v. City of Clearwater, 
    679 So. 2d 1172
    , 1174–76 (Fla. 1996).
    However, this exception, which is rooted in the concepts of detrimental
    reliance and estoppel, does not apply here. CCA could not reasonably
    claim detrimental reliance because Pembroke Pines never expressly
    manifested its desire to such an extent as to impose the duty of providing
    services to the CCA site. Accordingly, I dissent from the majority’s opinion.
    In the EMS ILA, Pembroke Pines expressed only a nascent willingness
    to service some future facility. The stated desire to “expeditiously approve
    a water/waste water utility agreement” was insufficient to constitute an
    affirmative, express manifestation of Pembroke Pines’ unreserved intent.
    Rather, the language of the EMS ILA was only an implicit expression of
    possible future intent, devoid of an affirmative expression of present intent
    8
    resembling a formal enactment of an ordinance or resolution. The EMS
    ILA is best described as nothing more than an “agreement to make an
    agreement,” which is unenforceable under Florida law. See Irby v. Mem’l
    Healthcare Grp., 
    901 So. 2d 305
    , 306 (Fla. 1st DCA 2005).
    After the EMS ILA was approved, CCA submitted to Pembroke Pines a
    proposed Water & Sewer Agreement for a 1,500-bed facility, requesting
    that the agreement be finalized at the next City Commission meeting
    because CCA knew that any water and sewer connection for the CCA site
    would ultimately require formal approval by a vote of the City
    Commission. 3 However, the City Commission never approved the
    agreement for services with CCA. Instead, the City Commission voted to
    adopt a resolution expressing its opposition to erecting the ICE detention
    center on the CCA site.
    Thus, CCA proceeded on the incorrect assumption that Pembroke Pines
    could not change its collective mind on its willingness to agree to provide
    utility services, failing to consider that it is not uncommon for a
    municipality to embark on a prospective plan of action only to later reverse
    course due to its citizens’ disapproval. Respect for the separation of
    powers precludes us from substituting our own collective judgment for
    that of Pembroke Pines’ elected leaders who are, and must remain,
    accountable to their citizens for any policy decisions they make.
    Moreover, although Pembroke Pines previously provided some utility
    services to customers outside its boundaries, it did so only in limited
    situations.    In light of CCA’s awareness that compliance with the
    applicable provisions of the Code of Ordinances was required, these
    circumstances on the whole did not amount to an affirmative expression
    of Pembroke Pines’ unreserved intent to assume the duty of providing
    utility services to the CCA site. See Allen’s Creek, 
    679 So. 2d at 1176
    (“Providing service outside its boundaries in only limited situations, as
    Clearwater has done here, does not amount to an affirmative expression
    of intent to serve all in the area.”).
    3 In fact, section 50.10(B) of the Pembroke Pines Code of Ordinances (2012),
    states that “property located outside the city limits shall not be allowed to connect
    to a city utility system unless the connection is authorized by the City
    Commission.” This authorization can only occur as provided by section 3.07(e)
    of the Charter of the City of Pembroke Pines, which states, “[n]o action of the
    Commission . . . shall be valid or binding unless adopted by the affirmative vote
    of three (3) members of the Commission.”
    9
    To conclude, this new majority opinion discusses nothing of
    significance that was overlooked the first time we considered the issue.
    That the City Commission formally approved the EMS ILA does not change
    its wording; all that happened was that the City Commission approved at
    that point an unenforceable “agreement to agree.” The majority’s opinion
    should give every local government in this state considerable pause, as it
    now holds that a city can now be bound by its mere favorable expressions
    of future intent despite no formal approval by the city’s governing body, no
    contract, and no estoppel created by detrimental reliance. Which, it
    seems, is plenty for the majority to find that an enforceable duty was
    created against Pembroke Pines. This “plenty,” however, “is plenty of
    nothing, and, apparently, nothing is plenty for th[is] Court.” See Bank
    Markazi v. Peterson, 
    136 S. Ct. 1310
    , 1335 (2016) (Roberts, C.J.,
    dissenting).
    *         *         *
    Not final until disposition of timely filed motion for rehearing.
    10