Legal Report, September 2016

General Counsel, Jennifer G. Ashton


  1. Ober v.Town of Lauderdale-By-The-Sea,2016 Fla. App. LEXIS 12813, 41 Fla. L. Weekly D 1978 (Fla. Dist. Ct. App. 4th Dist. Aug. 24, 2016). Lis pendens and Foreclosure.

On November 26, 2007, a bank recorded a lis pendens on a property as part of a foreclosure action against a homeowner. On September 22, 2008, the bank obtained a final judgment of foreclosure. Beginning on July 13, 2009, and continuing through October 27, 2011, the Town of Lauderdale-By-The-Sea (“Town”) recorded multiple code enforcement liens on the property. These liens stemmed from violations occurring after the foreclosure judgment was entered. On September 27, 2012, almost 4 years after final judgment was entered, the property was sold at a foreclosure sale. Shortly thereafter, the clerk issued the certificate of title.  A new property owner acquired the property and filed suit to quiet title, attempting to remove the liens. The Town counterclaimed to foreclose the liens. Both parties moved for summary judgment. The trial court found in favor of the Town.  This appeal followed.

The issue here is whether the Town’s liens recorded after final judgment, but before judicial sale, were extinguished by Florida’s lis pendens statute found at Section 48.23, F.S.  The court held that the lis pendens statute served to discharge only those liens that existed or arose prior to the final judgment of foreclosure. However, liens that arise after a final judgment of foreclosure is entered are valid and enforceable even if they are recorded before the actual sale of the property. In the instant case, the court found that the Town’s liens were all recorded and based on conduct that occurred after the date of the final judgment. Therefore, the court affirmed the trial court’s ruling in favor of the Town.  

The court also granted the Town’s motion for attorney’s fees on appeal and remanded the case to the trial court to determine the amount of attorney’s fees.  The Town had previously been awarded attorney’s fees and costs at the trial level.  On September 8, 2016, the property owner filed a motion for rehearing, which has not yet been resolved by the court.  We will continue to monitor this case.

2.   Zuccarelli v.Barfield,2016 Fla. App. LEXIS 12456, 41 Fla. L. Weekly D 1915 (Fla. Dist. Ct. App. 4th Dist. Aug. 17, 2016). Selective Code Enforcement.
The case evolved from a dispute between plaintiff husband and wife, and their town, its commissioners and employees concerning the construction of the plaintiffs' home. Plaintiffs purchased their property in 1993. In May 2005, they submitted plans to construct a 10,225 square foot home on their property. The town issued the permit on August 22, 2005. Under the town's code, construction was required to be completed within twelve (12) months unless an extension was granted.  Plaintiffs alleged that the town and its officials and employees, including then Mayor John Zuccarelli, repeatedly discriminated against them and selectively enforced town codes and the building code to harass them, and so that they could not get their certificate of occupancy.  Plaintiffs did not obtain a certificate of occupancy until August 2011, six years after construction started. At that point, Zuccarelli was no longer Mayor.  Of note, the plaintiff wife also served on the town commission.

Plaintiffs sued the town, its police department, its police chief, Mayor Zuccarelli, and three other town commissioners.  The trial court entered multiple final summary judgments in favor of the town and its officials and employees including, but not limited to, a finding that the town’s ordinances were valid.  By the time the case went to a jury trial, only the town, Mayor Zuccarelli and the police chief remained as defendants. The jury found that Mayor Zuccarelli violated plaintiffs’ free speech rights, and also their equal protection rights by selectively enforcing town ordinances against them with a discriminatory purpose so as to treat them less favorably than similarly-situated persons.  The jury ordered Mayor Zuccarelli to pay $1,000,000 in damages plus $100,000 in punitive damages to the wife, but awarded nothing to the husband.  The jury found that the police chief did nothing wrong.  Finally, the jury found the town liable on a negligence claim and awarded $76,000 against the town.  Only Mayor Zuccarelli appealed.

The appellate court reversed the jury award against the Mayor on two grounds.  First, the court held that no evidence existed the Mayor selectively enforced any of the town’s ordinances against plaintiffs.  To prevail on a selective enforcement claim, that a city’s ordinance was applied to plaintiff and not others, a plaintiff must show that: (1) they were treated differently from other similarly situated individuals; and (2) defendant unequally applied a facially neutral ordinance for the purpose of discriminating against plaintiff.  In this case, no evidence existed that the Mayor enforced any ordinance.  He could not even legally direct the enforcement of any ordinance, he did he have anything to do with the issuance of citations in the town, and he did not have any supervisory authority over the police chief or police officers.  The court further held that just because the Mayor, as a resident of the town, made complaints to town police about the condition of plaintiffs’ property, does not constitute evidence that he selectively enforced town codes or directed the town police to selectively enforce town codes.  Only the town police had the discretion and authority to cite the residents.  Therefore, there was no selective enforcement by the Mayor. 

Second, the court held that the Mayor was not liable for selective enforcement under a supervisory liability theory.  Supervisors can be liable under section 1983 claims only if they actually participated in the allegedly wrongful act, or if a causal connection exists between their acts and the alleged violation.  Here, the Mayor did not supervise the police chief.  Even if he did, the police chief was found not liable for selective enforcement.  The Mayor could not be held liable for selective enforcement under a supervisory theory because no one under his supervision was found liable.

3.   Posting of Budget on Municipality’s Official Website  ***Reminder ***
Section 166.241(3), Florida Statutes, states that a municipality’s tentative budget must be posted on the municipality’s official website at least two (2) days before its budget hearings.  The final adopted budget must be posted on the municipality’s official website within 30 days after adoption.  If the municipality does not operate an official website, then the municipality must, within a reasonable period of time, transmit the tentative budget and final budget to the county administrator who shall post the budgets on the county’s website.