Opinion
Case No. 5D20-1904
02-04-2022
Rachel M. SADOFF, in Her Official Capacity as Brevard County Clerk of the Circuit Court and Comptroller, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF BREVARD COUNTY, Florida, Wayne Ivey, in His Official Capacity as Sheriff of Brevard County, et al., Appellees.
J. Carter Andersen and Bryan D. Hull, of Bush|Ross, P.A., Tampa, for Appellant. Eden Bentley, County Attorney, and Abigail Forrester Jorandby, Deputy County Attorney, and Christine V. Reilly, Assistant County Attorney, Viera, for Appellee, Brevard County. Keith S. Kromash, of Nash & Kromash, LLP, Melbourne, for Appellee, Wayne Ivey, Sheriff of Brevard County.
J. Carter Andersen and Bryan D. Hull, of Bush|Ross, P.A., Tampa, for Appellant.
Eden Bentley, County Attorney, and Abigail Forrester Jorandby, Deputy County Attorney, and Christine V. Reilly, Assistant County Attorney, Viera, for Appellee, Brevard County.
Keith S. Kromash, of Nash & Kromash, LLP, Melbourne, for Appellee, Wayne Ivey, Sheriff of Brevard County.
WALLIS, J.
Appellant appeals the trial court's dismissal of her complaint against Appellees with prejudice. We reverse.
Appellant brought a complaint seeking a declaratory judgment and injunctive relief surrounding the interpretation of Article 2.9.3.1(c) of Brevard County's amended charter regarding an increase in ad valorem tax revenues. Appellant's original complaint alleged that she had an actual interest in the interpretation of the specific article. Appellees successfully argued for a dismissal of the complaint with prejudice despite the fact that Appellant had never amended the complaint. In the order of dismissal, the trial court found that Appellant lacks standing "in her official capacity" to challenge the computation of the millage rate and levy of ad valorem tax revenue by the Board of County Commissioners. Appellant contends that any dismissal should have been without prejudice for Appellant to amend at least once. We agree. Pursuant to Florida Rule of Civil Procedure 1.190(a), "[p]laintiffs have an automatic right to amend the complaint once before a responsive pleadings is served." Unrue v. Wells Fargo Bank, N.A., 161 So. 3d 536, 538 (Fla. 5th DCA 2014). Furthermore, "a motion to dismiss is not a ‘responsive pleading’ because it is not a ‘pleading’ under the rules.’ " Id. (quoting Boca Burger, Inc. v. Forum, 912 So. 2d 561, 567 (Fla. 2005) ). Thus, the "discretion to deny amendment of a complaint arises only after the defendant files an answer or if the plaintiff already has exercised the right to amend once." Id. at 537–38 (quoting Boca Burger, 912 So. 2d at 567 ).
Like Unrue, here, the complaint at issue has never been amended and Appellees have yet to file a responsive pleading. Furthermore, there is no prejudice in allowing Appellant to amend her complaint. Accordingly, the trial court was without discretion to dismiss the complaint with prejudice. See DeSantis v. FC Lending-Sunshine, LLC, 328 So. 3d 374, 375 (Fla. 2d DCA 2021) (explaining that, even when amending the complaint appears to be futile, the trial court lacks discretion to dismiss an action with prejudice where the plaintiff has not filed an amended complaint and the defendant has not filed a responsive pleading); McAlpin v. Roberts, 195 So. 3d 1197, 1198–99 (Fla. 1st DCA 2016) (reversing order dismissing complaint with prejudice and holding that appellants should be allowed to amend, even though the complaint may have alleged insufficient facts to establish standing); Unrue, 161 So. 3d at 537. Therefore, we reverse the order dismissing the complaint with prejudice and direct the trial court to allow Appellant an opportunity to amend the complaint.
REVERSED.
EISNAUGLE, J., concurs.
COHEN, J., concurs specially, with opinion.
COHEN, J., concurring specially.
I agree that the trial court erred in dismissing the action with prejudice. The dismissal was based on the trial court's finding that under the public official standing doctrine, Rachel Sadoff—in her capacity as Brevard County Clerk of the Circuit Court and Comptroller ("Clerk")—lacked legal standing to challenge the millage rate and levy of ad valorem taxes by the Board of County Commissioners of Brevard County ("the Board"). The standing issue merits further explication.
In 2008, the citizens of Brevard County passed a Home Rule Charter ("the Charter"), which imposed a cap on the annual growth of ad valorem tax revenue. The Charter dictates that the amount of increase may not exceed three percent, or the percentage change in the Consumer Price Index from the preceding calendar year, whichever is less. However, the Charter includes a provision that allows the Board to exceed that cap in case of an emergency or critical need. Such an increase above the three-percent cap is expressly limited to a single fiscal year. In 2019, the Board utilized this provision.
The Board passed a resolution finding that the Sheriff's Office had a critical need, warranting an increase in ad valorem revenue for the law enforcement municipal services taxing unit.
In her official capacity as Clerk, Sadoff challenged the use of the specially increased 2019 budget figure as the baseline for calculating the 2020 budget increase for that taxing unit. She maintained that by doing so, the one-time emergency increase would become permanent, consistent with the Board's interpretation that the increase should "remain in place for perpetuity." Sadoff further asserted that allowing the Board's interpretation of the provision would lead to impermissible expenditures, rendering future budgets unbalanced—in violation of the Charter—and subjecting her to civil and criminal liability. See § 129.09, Fla. Stat. (2019). The Board successfully argued that, pursuant to the public official standing doctrine, Sadoff was barred from bringing this action because a public official is prohibited from seeking a determination of the proper interpretation of a law that impacts the official's duties.
Because the trial court never reached the merits of Sadoff's argument, neither will we.
It is noteworthy that the parties acknowledged during oral argument that Sadoff's ability to plead standing as an individual taxpayer, rather than in her official capacity as Clerk, could impact her ability to plead a cause of action. The trial court erred by not granting her an opportunity to amend. See McAlpin v. Roberts, 195 So. 3d 1197, 1198–99 (Fla. 1st DCA 2016).