Third District Court of Appeal State of Florida
Opinion filed October 10, 2018. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-1393 Lower Tribunal No. 17-16625 ________________
The City of Coral Gables, Appellant,
vs.
Pedro J. Garcia, etc., et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig, Judge.
Rennert Vogel Mandler & Rodriguez, P.A., and Thomas S. Ward, for appellant.
Abigail Price-Williams, Miami-Dade County Attorney, and Ileana Cruz, Assistant County Attorney, for appellee Pedro J. Garcia, as Property Appraiser of Miami-Dade County, Florida; Pamela Jo Bondi, Attorney General, and Timothy E. Dennis, Chief Assistant Attorney General (Tallahassee), for appellee Leon M. Biegalski, Executive Director of the State of Florida Department of Revenue.
Before LAGOA, FERNANDEZ, and LINDSEY, JJ. LAGOA, J.
ON MOTION TO DISMISS
Pedro J. Garcia, as Property Appraiser for Miami-Dade County (the
“Property Appraiser”), moves to dismiss The City of Coral Gables’s (“the City”)
appeal of three orders—an “Order on Property Appraiser’s Motion to Strike The
City of Coral Gables and the Amended Counterclaim” (the “Second-Strike
Order”), an “Order on The City of Coral Gables’ Motion for Rehearing” (the
“Order Denying Rehearing”), and an “Order on The City of Coral Gables’ Motion
to Join or Intervene” (the “Order Denying Intervention”)—for lack of jurisdiction.
For the reasons discussed below, we grant the Property Appraiser’s motion to
dismiss as to both the Second-Strike Order and the Order Denying Rehearing, but
deny the motion to dismiss as to the Order Denying Intervention.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Property Appraiser commenced an action in Miami-Dade County
Circuit Court against Merrick Park LLC (“Merrick Park”) and Leon M. Biegalski,
as Executive Director of the State of Florida Department of Revenue, to contest the
2016 tax assessment value by the Miami-Dade County Value Adjustment Board of
real property improvements owned by Merrick Park. Merrick Park is solely
responsible for paying the ad valorem taxes assessed on its property improvements,
2 and the Property Appraiser did not name the City as a party-defendant in his
complaint against Merrick Park.
In response to the Property Appraiser’s complaint, Merrick Park filed both
an answer and a two-count counterclaim. The first count of the counterclaim was
solely pled by Merrick Park. The second count of the counterclaim, however, was
solely pled by the City. The City’s counterclaim sought to commence an action
against the Property Appraiser to contest the 2016 tax assessment of land that the
City owns and leases to Merrick Park. The City did not move to intervene in the
case before or contemporaneous with the filing of its counterclaim.
On September 29, 2017, the Property Appraiser moved to strike the City’s
counterclaim, arguing that Merrick Park lacked standing to assert the City’s
counterclaim. After a hearing, the trial court entered an “Order on Motion to
Dismiss or Strike Count II of the Counterclaim and Strike Tax Collector as
Counter-Defendant” (the “First-Strike Order”). In the First-Strike Order, the trial
court found that because “[t]he Property Appraiser did not bring suit against” the
City, the City was “not a party defendant in the instant matter,” and that Merrick
Park did not have standing to bring the City’s counterclaim. As such, the trial
court dismissed the City’s counterclaim without prejudice.
Subsequently, on February 20, 2018, Merrick Park and the City filed an
amended counterclaim. Count II of the amended counterclaim was asserted jointly
3 by Merrick Park and the City—again without the City moving to intervene in the
case—contesting the tax assessment of the City’s land. On March 14, 2018, the
Property Appraiser moved to strike the amended counterclaim and the City from
the case. After a hearing, the trial court entered the Second-Strike Order on April
11, 2018, striking the amended counterclaim and finding that the City was “not a
party to this suit.” On April 25, 2018, the City moved for rehearing of the Second-
Strike Order and filed a “Motion to Join or Intervene” (the “Motion to Intervene”)
in the case. On June 4, 2018, the trial court entered the Order Denying Rehearing
and the Order Denying Intervention.
On June 29, 2018, the City appealed the Second-Strike Order, the Order
Denying Rehearing, and the Order Denying Intervention. On July 19, 2018, the
Property Appraiser moved to dismiss the appeal for lack of jurisdiction.
II. ANALYSIS
In his motion to dismiss the instant appeal for lack of jurisdiction, the
Property Appraiser contends that the City lacks standing to appeal the Second-
Strike Order, as well as the Order Denying Rehearing, as the City is a non-party to
the case. We agree.
As a general rule, “a non-party in the lower tribunal is a ‘stranger to the
record’ and, therefore, lacks standing to appeal an order entered by the lower
tribunal.” Portfolio Invs. Corp. v. Deutsche Bank Nat’l Tr. Co., 81 So. 3d 534, 536
4 (Fla. 3d DCA 2012) (quoting Barnett v. Barnett, 705 So. 2d 63, 64 (Fla. 4th DCA
1997)); see also YHT & Assocs., Inc. v. Nationstar Mortg. LLC, 177 So. 3d 641,
642 (Fla. 2d DCA 2015) (“Because the trial court denied YHT’s motion to
intervene and YHT did not appeal that order, it has no standing to appeal the final
judgment . . . .”). For example, in Barnett, a non-party bank “moved ore tenus in
[a] dissolution action to establish the priority of its lien over that of the parties’
attorneys” on an item of the parties’ property, but had not moved to intervene in
the case. 705 So. 2d at 64. After the trial court denied the bank’s motion to
establish lien priority, the bank assigned any right it had to appeal the order to the
wife in the case, and the wife subsequently appealed. Id. The Fourth District
Court of Appeal found that because the bank “was not a party in the dissolution
action below, it had no standing to appeal the adverse order,” and thus, the wife
could not appeal the order. See id.; see also, e.g., Hood v. Union Planters Bank,
941 So. 2d 1175, 1176 (Fla. 1st DCA 2006) (“Appellant . . . has no standing to
appeal this foreclosure because he was not one of the parties named below, and
made no effort to intervene.”). Indeed, a non-party seeking to participate in a case
must generally move to intervene in the proceedings. See Bondi v. Tucker, 93 So.
3d 1106, 1111 (Fla. 1st DCA 2012) (“Even a party able to intervene as a matter of
right must obtain a court order allowing intervention.”); Stas v. Posada, 760 So. 2d
954, 955 (Fla. 3d DCA 1999) (“Appellant . . . was not a party below and made no
5 effort to intervene in the action. Consequently, he too is precluded from seeking
appellate review.”).
In the instant case, the Property Appraiser did not name the City as a party-
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Third District Court of Appeal State of Florida
Opinion filed October 10, 2018. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D18-1393 Lower Tribunal No. 17-16625 ________________
The City of Coral Gables, Appellant,
vs.
Pedro J. Garcia, etc., et al., Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig, Judge.
Rennert Vogel Mandler & Rodriguez, P.A., and Thomas S. Ward, for appellant.
Abigail Price-Williams, Miami-Dade County Attorney, and Ileana Cruz, Assistant County Attorney, for appellee Pedro J. Garcia, as Property Appraiser of Miami-Dade County, Florida; Pamela Jo Bondi, Attorney General, and Timothy E. Dennis, Chief Assistant Attorney General (Tallahassee), for appellee Leon M. Biegalski, Executive Director of the State of Florida Department of Revenue.
Before LAGOA, FERNANDEZ, and LINDSEY, JJ. LAGOA, J.
ON MOTION TO DISMISS
Pedro J. Garcia, as Property Appraiser for Miami-Dade County (the
“Property Appraiser”), moves to dismiss The City of Coral Gables’s (“the City”)
appeal of three orders—an “Order on Property Appraiser’s Motion to Strike The
City of Coral Gables and the Amended Counterclaim” (the “Second-Strike
Order”), an “Order on The City of Coral Gables’ Motion for Rehearing” (the
“Order Denying Rehearing”), and an “Order on The City of Coral Gables’ Motion
to Join or Intervene” (the “Order Denying Intervention”)—for lack of jurisdiction.
For the reasons discussed below, we grant the Property Appraiser’s motion to
dismiss as to both the Second-Strike Order and the Order Denying Rehearing, but
deny the motion to dismiss as to the Order Denying Intervention.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Property Appraiser commenced an action in Miami-Dade County
Circuit Court against Merrick Park LLC (“Merrick Park”) and Leon M. Biegalski,
as Executive Director of the State of Florida Department of Revenue, to contest the
2016 tax assessment value by the Miami-Dade County Value Adjustment Board of
real property improvements owned by Merrick Park. Merrick Park is solely
responsible for paying the ad valorem taxes assessed on its property improvements,
2 and the Property Appraiser did not name the City as a party-defendant in his
complaint against Merrick Park.
In response to the Property Appraiser’s complaint, Merrick Park filed both
an answer and a two-count counterclaim. The first count of the counterclaim was
solely pled by Merrick Park. The second count of the counterclaim, however, was
solely pled by the City. The City’s counterclaim sought to commence an action
against the Property Appraiser to contest the 2016 tax assessment of land that the
City owns and leases to Merrick Park. The City did not move to intervene in the
case before or contemporaneous with the filing of its counterclaim.
On September 29, 2017, the Property Appraiser moved to strike the City’s
counterclaim, arguing that Merrick Park lacked standing to assert the City’s
counterclaim. After a hearing, the trial court entered an “Order on Motion to
Dismiss or Strike Count II of the Counterclaim and Strike Tax Collector as
Counter-Defendant” (the “First-Strike Order”). In the First-Strike Order, the trial
court found that because “[t]he Property Appraiser did not bring suit against” the
City, the City was “not a party defendant in the instant matter,” and that Merrick
Park did not have standing to bring the City’s counterclaim. As such, the trial
court dismissed the City’s counterclaim without prejudice.
Subsequently, on February 20, 2018, Merrick Park and the City filed an
amended counterclaim. Count II of the amended counterclaim was asserted jointly
3 by Merrick Park and the City—again without the City moving to intervene in the
case—contesting the tax assessment of the City’s land. On March 14, 2018, the
Property Appraiser moved to strike the amended counterclaim and the City from
the case. After a hearing, the trial court entered the Second-Strike Order on April
11, 2018, striking the amended counterclaim and finding that the City was “not a
party to this suit.” On April 25, 2018, the City moved for rehearing of the Second-
Strike Order and filed a “Motion to Join or Intervene” (the “Motion to Intervene”)
in the case. On June 4, 2018, the trial court entered the Order Denying Rehearing
and the Order Denying Intervention.
On June 29, 2018, the City appealed the Second-Strike Order, the Order
Denying Rehearing, and the Order Denying Intervention. On July 19, 2018, the
Property Appraiser moved to dismiss the appeal for lack of jurisdiction.
II. ANALYSIS
In his motion to dismiss the instant appeal for lack of jurisdiction, the
Property Appraiser contends that the City lacks standing to appeal the Second-
Strike Order, as well as the Order Denying Rehearing, as the City is a non-party to
the case. We agree.
As a general rule, “a non-party in the lower tribunal is a ‘stranger to the
record’ and, therefore, lacks standing to appeal an order entered by the lower
tribunal.” Portfolio Invs. Corp. v. Deutsche Bank Nat’l Tr. Co., 81 So. 3d 534, 536
4 (Fla. 3d DCA 2012) (quoting Barnett v. Barnett, 705 So. 2d 63, 64 (Fla. 4th DCA
1997)); see also YHT & Assocs., Inc. v. Nationstar Mortg. LLC, 177 So. 3d 641,
642 (Fla. 2d DCA 2015) (“Because the trial court denied YHT’s motion to
intervene and YHT did not appeal that order, it has no standing to appeal the final
judgment . . . .”). For example, in Barnett, a non-party bank “moved ore tenus in
[a] dissolution action to establish the priority of its lien over that of the parties’
attorneys” on an item of the parties’ property, but had not moved to intervene in
the case. 705 So. 2d at 64. After the trial court denied the bank’s motion to
establish lien priority, the bank assigned any right it had to appeal the order to the
wife in the case, and the wife subsequently appealed. Id. The Fourth District
Court of Appeal found that because the bank “was not a party in the dissolution
action below, it had no standing to appeal the adverse order,” and thus, the wife
could not appeal the order. See id.; see also, e.g., Hood v. Union Planters Bank,
941 So. 2d 1175, 1176 (Fla. 1st DCA 2006) (“Appellant . . . has no standing to
appeal this foreclosure because he was not one of the parties named below, and
made no effort to intervene.”). Indeed, a non-party seeking to participate in a case
must generally move to intervene in the proceedings. See Bondi v. Tucker, 93 So.
3d 1106, 1111 (Fla. 1st DCA 2012) (“Even a party able to intervene as a matter of
right must obtain a court order allowing intervention.”); Stas v. Posada, 760 So. 2d
954, 955 (Fla. 3d DCA 1999) (“Appellant . . . was not a party below and made no
5 effort to intervene in the action. Consequently, he too is precluded from seeking
appellate review.”).
In the instant case, the Property Appraiser did not name the City as a party-
defendant in its complaint against Merrick Park contesting the tax assessment of
Merrick Park’s property. Without moving to intervene in the case, the City twice
attempted to assert a counterclaim against the Property Appraiser as part of
Merrick Park’s response to the complaint. In striking the counterclaim both times,
the trial court correctly found that the City was not a party to the case. The City, as
a non-party, lacks standing to appeal the trial court’s Second-Strike Order, and we
therefore dismiss the City’s appeal as to the Second-Strike Order and the Order
Denying Rehearing.
The City also appeals the trial court’s order denying its Motion to Intervene
in the case filed after the entering of the Second-Strike Order. It is well-
established that a non-party to a case may appeal an order denying its motion to
intervene. See, e,g., Bymel v. Bank of Am., N.A., 159 So. 3d 345, 345 (Fla. 3d
DCA 2015); Superior Fence & Rail of N. Fla. v. Lucas, 35 So. 3d 104, 105 (Fla.
5th DCA 2010) (en banc) (per curiam) (“[A]n order denying a motion to intervene
is appealable as a matter of right, by plenary appeal, because the order constitutes a
final determination of the proceeding as to the parties seeking to intervene.”); see
also Quinones v. Se. Inv. Grp. Corp., 138 So. 3d 549, 549-50 (Fla. 3d DCA 2014)
6 (“With regard to the order denying Appellants’ motion to intervene, because the
order constituted a final determination of the proceedings as to Appellants, they
were required to seek direct review of the order by filing a notice of appeal within
thirty days of its rendition.” (footnote omitted)). Thus, the City has standing to
appeal the trial court’s order denying its motion to intervene, and we therefore
deny the Property Appraiser’s motion to dismiss as to the Order Denying
Intervention.
III. CONCLUSION
Because the City was not a party to the case when it asserted its
counterclaim against the Property Appraiser in the amended counterclaim, we
grant the Property Appraiser’s motion to dismiss the appeal as to the trial court’s
Second-Strike Order and the Order Denying Rehearing. The Property Appraiser’s
motion, however, is denied as to the trial court’s Order Denying Intervention.
Accordingly, on appeal, the City is limited to making arguments based on the trial
court’s denial of its Motion to Intervene in the case.
Motion to dismiss appeal granted in part, denied in part.