DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY v. JAMES ROBINSON

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DELRAY BEACH COMMUNITY REDEVELOPMENT AGENCY,
Appellant,
v.
JAMES ROBINSON, BETTY J. GOODMAN and HERMAN L. GOODMAN,
Appellees.
No. 4D20-1049
[February 24, 2021]
CORRECTED OPINION
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Scott Kerner, Judge; L.T. Case No. 50-2010-CA-017825-
XXXX-MB.
Michele A. Cavallaro of Fidelity National Law Group, Fort Lauderdale,
for appellant.
Peter M. Feaman of Peter M. Feaman, P.A., Boynton Beach, for appellee
James Robinson.
PER CURIAM.
The appellee, James Robinson, obtained a judgment in his favor in his
suit against two persons he alleged had fraudulently obtained real
property intended for his inheritance. He then initiated proceedings
supplementary and impleaded the appellant, Delray Beach Community
Redevelopment Agency (“the Agency”). The Agency purchased the real
property at issue while Robinson’s fraud suit was pending. The trial court
ultimately entered summary judgment in favor of Robinson, imposing an
equitable lien of an unspecified amount. We affirm the summary judgment
to the extent it imposes an equitable lien on the property, but we reverse
and remand for the trial court to specify the amount of the lien.
The Agency’s argument on appeal revolves around an interpretation of
a particular subsection of the lis pendens statute. The Agency’s
interpretation of that subsection of the statute appears to have merit.
However, the Agency did not rely on that subsection in its arguments
below. Indeed, the summary judgment contains no discussion of the
subsection of the statute relied on by the Agency on appeal. It is not clear
the trial court considered that subsection. In sum, the trial court did not
have the benefit of the specific argument the Agency now raises on appeal,
and Robinson did not have the opportunity to respond to that argument.
Because the argument made on appeal was not made below, it is not
preserved for appeal. See Steinhorst v. State, 412 So. 2d 332, 338 (Fla.
1982) (recognizing that in order to preserve an issue for appeal, the issue
must have been presented to the lower court and the argument on appeal
“must be the specific contention asserted . . . below”).
The Agency asserts in its reply brief that the error raised on appeal
amounts to fundamental error. But it waived this argument by not raising
it in its initial brief. See Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA
2012).
Although we affirm the summary judgment, we reverse the judgment to
the extent it fails to specify the amount of the equitable lien. We remand
for the trial court to specify the amount of the equitable lien. See Radin v.
Radin, 593 So. 2d 1231, 1233 (Fla. 3d DCA 1992) (reversing and
remanding for entry of amended order where the order did not make the
amount of the equitable lien apparent). We affirm as to the other
arguments the Agency raises regarding the amount of the lien.
Affirmed in part, reversed in part, and remanded.
CIKLIN, CONNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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