Opinion
2D22-693
08-11-2023
DJB RENTALS, LLC, Appellant, v. CITY OF LARGO, Appellee.
Benjamin Hillard and Amy Cuykendall of Jones of Hillard Cuykendall, Largo, for Appellant. Matthew D. Weidner of Weidner Law, P.A., St. Petersburg, for Appellee.
Appeal from the Circuit Court for Pinellas County; Amy M. Williams, Judge.
Benjamin Hillard and Amy Cuykendall of Jones of Hillard Cuykendall, Largo, for Appellant.
Matthew D. Weidner of Weidner Law, P.A., St. Petersburg, for Appellee.
ATKINSON, JUDGE.
DJB Rentals, LLC (DJB), appeals from a final judgment of foreclosure of a municipal lien in favor of the City of Largo (the City), in the amount of $590,295. DJB contends that the trial court erred by denying its motion to add counterclaims, by denying its motion to continue the summary judgment hearing until the City responded to discovery requests, and by granting summary judgment in favor of the City. Because DJB has not established that the trial court committed reversible error, we affirm.
Background
The City of Largo Municipal Code Enforcement Board (the Board) entered an order finding the following violations as of July 22, 2015, on the property owned by DJB:
"STANDARDS FOR REQUIRING BUSINESS TAX RECEIPTS, ISSUING GUIDELINES, TRANSFERRING OF BUSINESS TAX RECEIPTS, AND ISSUING BUSINESS TAX RECEIPTS TO INDEPENDENT CONTRACTORS"/ "PMC (EXTERIOR STRUCTURE; ROOFS AND DRAINAGE)" / "PMC (EXTERIOR STRUCTURE; HANDRAILS &GUARDRAILS)" / "PMC (EXTERIOR STRUCTURE; STAIRWAYS, DECKS, PORCHES &BALCONIES)" / "PMC (PLUMBING SYSTEMS &FIXTURES; PLUMBING SYSTEM HAZARDS)" / "PMC (HEATING FACILITIES; HEAT (SUPPLY) REQUIRED)"/ "PMC (EXTERIOR STRUCTURE; WINDOWS, SKYLIGHTS &DOOR FRAMES)" / "PMC (EXTERIOR STRUCTURE; PROTECTIVE TREATMENT)"/ "BUILDING WITHOUT PERMITS" / "INOPERABLE VEHICLE(S) VIOLATION "/ "PMC (ELECTRICAL FACILITIES; ELECTRICAL SYSTEM HAZARDS)"
The order directed DJB to cure the violations before September 3, 2015, or face a fine of $250 per day beginning on September 4, 2015. Reinspection of the property on September 4, 2015, revealed that the violations had not been corrected as ordered. The order entered September 24, 2015, stated:
RESPONDENT(S) are hereby ordered to correct the aforesaid VIOLATION(S) immediately and to pay a fine of $250.00 per day for each day the VIOLATION(S) continue beyond September 03, 2015. RESPONDENT(S) is further ordered to contact the Community Development Department (Building Division) to arrange for re-inspection of subject property in order to verify the date on which said VIOLATION(S) have been corrected.
This order was recorded on October 1, 2015, at which point it became a lien by operation of law. See § 162.09(3), Fla. Stat. (2015) ("A certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator.").
The City did not file an action to foreclose on its lien until June 22, 2021; it served DJB on August 18, 2021. DJB filed an answer and affirmative defenses, including the defense of estoppel. In its answer, DJB alleged that it "remedied most or all of the alleged city ordinance violations" and that the City assessed the fines "without breaking down what the specific violations are or dropping the fines for each matter corrected."
The City filed a motion for summary judgment. Approximately one week later, the City set the hearing on that motion for January 31, 2022. On January 13, 2022, DJB filed a motion for a continuance of the summary judgment hearing as well as a motion for leave to add counterclaims against the City and the Board.
In opposition to the motion for summary judgment, DJB filed an affidavit of its principal, Donald Bourgeois, in which Bourgeois swore that a specific code enforcement officer "informed me that as long as work was regularly progressing and eventually brought to code, the City would eventually forgive any liens." He swore that "[h]ad the City been truthful upfront, I may have been able to make other financial arrangements to get the repairs completed more closely with the City's unilaterally-set draconian timeline." In the affidavit, Bourgeois stated that the affidavit was filed in accordance with Florida Rule of Civil Procedure 1.510(d)(1) and (2), and he described the requested discovery as "seek[ing] to get to the bottom of the Permit and issues associated with the City forgiving the fines so long as I was progressing with the repair work."
In DJB's motion for leave to add counterclaims against the City and the City Code Enforcement Board, it sought damages as well as declaratory and injunctive relief. In its factual allegations in support of the counterclaims and third-party claims, DJB alleged that "[a]ll identified Property code violations have been corrected." In Count I, DJB claimed that "[a]s applied, the City's aggregate fines of over $550,000 violate the Excessive Fines Clause of the Florida Constitution." It argued that "[t]he City Code of Ord[i]nances, generally [chapter 9] and specifically, § 9-72 et seq. contemplates individual fines for specific violations, not a single daily fine for multiple violations." It sought injunctive and declaratory relief as well as attorney's fees and costs from the City and the Board. In Count II, DJB alleged that the imposition of a single fine for multiple violations and failure to have a mechanism to reduce the $250 daily fine as the property owner corrects individual code violations "amounts to a violation of the Due Process Clause of the Florida Constitution." It sought injunctive and declaratory relief from the City and the Board as well as attorney's fees and costs. In Count III, DJB sought damages from the City for estoppel, arguing that it relied on the statements of a code enforcement officer who indicated that "as long as work was regularly progressing and eventually brought to code, the City would forgive any fines."
The trial court denied DJB's motion to amend to add these counterclaims and third-party claims, finding "Defendant's proposed Counterclaims and Third Party Claims are not compulsory in nature and must be brought in a separate action." The court granted the City's motion for summary judgment and entered a final judgment in favor of the City, permitting the City to foreclose its municipal lien and setting the claim amount at $590,295.
I. Motion to Continue the Summary Judgment Hearing
DJB argues that the trial court abused its discretion by denying its motion to continue the summary judgment hearing after it propounded discovery on the City and moved to amend its answer and affirmative defenses to add counterclaims and third-party claims. See Fasig v. Fasig, 830 So.2d 839, 841 (Fla. 2d DCA 2002) ("The standard of review for the denial of a continuance is abuse of discretion." (citing Webb v. State, 433 So.2d 496 (Fla. 1983)). The City contends that denial was appropriate because the motion was filed to delay the foreclosure and because it was only signed by counsel and not by DJB's principal without good cause.
The propriety of denying a motion to continue turns on "1) whether the movant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted." James B. Nutter &Co. v. Heirs, 314 So.3d 772, 773-74 (Fla. 2d DCA 2021) (quoting Neal v. Swaby, 975 So.2d 431, 433 (Fla. 2d DCA 2007)).
DJB suggests that it would suffer prejudice by the denial of the continuance in that it propounded discovery requests to which the City had not responded. The contents of those discovery requests are not in the record. DJB attempted to utilize rule 1.510(d) to explain what facts it was unable to present in opposition to the summary judgment motion, describing the unanswered discovery as that which "seeks to get to the bottom of the Permit and issues associated with the City forgiving the fines so long as [it] was progressing the repair work."
The City claims that it would suffer injustice by the continuance because of a danger to the community. However, it waited six years after the initial violations to foreclose the lien totaling more than $500,000. Moreover, DJB alleged that all the violations had been corrected, which, if true, would mean that any ongoing threats to the public had since been eliminated.
There was nothing other than the timing of the discovery requests and motions to indicate that the continuance was filed solely to delay. Nor was this a situation in which the moving party had already propounded multiple discovery requests. This was the first set of discovery requests that DJB propounded on the City. However, the underlying cause for the motion was known. See James B. Nutter &Co., 314 So.3d at 773-74 (including "whether the underlying cause for the motion was unforeseen by the movant" as a factor in determining the propriety of a denial of a motion to continue). The City set the hearing on the motion for summary judgment one week after filing it. So, DJB was aware on October 20 that a summary judgment hearing was scheduled for January 31. To get discovery responses before the hearing, DJB had over two months within which it could have filed its request-some time before January 1. See, e.g., Fla. R. Civ. P. 1.340(a) ("The party to whom the interrogatories are directed must serve the answers and any objections within 30 days after the service of the interrogatories ...."). However, DJB's written discovery requests were first filed on January 7 followed by a deposition request on January th, the same day it filed its motion to amend to add counterclaims and motion for continuance. See Cong. Park Office Condos II, LLC v. First-Citizens Bank &Tr. Co., 105 So.3d 602, 608 (Fla. 4th DCA 2013) ("A trial court does not abuse its discretion in granting a motion for summary judgment, despite the pendency of discovery, where the non-moving party has failed to act diligently in taking advantage of discovery opportunities.").
The City contends that the lack of DJB's signature on the motion to continue is a basis for affirming under the tipsy coachman doctrine. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) ("[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record. This Court has adhered to this principle on many other occasions."). Florida Rule of Judicial Administration 2.545(e) provides:
All judges shall apply a firm continuance policy. Continuances should be few, good cause should be required, and all requests should be heard and resolved by a judge. All motions for continuance shall be in writing unless made at a trial and, except for good cause shown, shall be signed by the party requesting the continuance. All motions for continuance in priority cases shall clearly identify such priority status and explain what effect the motion will have on the progress of the case.(Emphasis added). Florida Rule of Civil Procedure 1.460 similarly provides, "A motion for continuance shall be in writing unless made at a trial and, except for good cause shown, shall be signed by the party requesting the continuance." (Emphasis added).
Courts have reversed the denial of a motion for continuance, even on the eve of trial, where the motion was unsigned and where the party established good cause. See, e.g., Myers v. Siegel, 920 So.2d 1241, 1244 (Fla. 5th DCA 2006) ("[T]he faxed motion the morning of trial, together with the telephone conversation between the trial court and [counsel] that morning, were adequate under the rule given the unique circumstances of this case."); Silverman v. Millner, 514 So.2d 77, 78-79 (Fla. 3d DCA 1987) (holding that the trial court abused its discretion by denying the unsigned motion to continue where it was "accompanied by affidavits, which explained the seriousness of the defendant's illness, the necessity of the defendant's testimony in the presentation of the case, and the availability of the defendant as soon as he became physically able to appear in court"). Both rule 1.460 and rule 2.545(e) provide that the motion "shall be signed by the party requesting the continuance," indicating that the signature of DJB's principal was mandatory absent good cause. However, without a transcript of the hearing on the motion to continue, DJB cannot establish whether it presented any facts that would support good cause or if this matter was even raised below. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory.").
The basis on which DJB premised its request for a continuance was its intention to add counterclaims, for which it sought more time to obtain discovery to support those claims. Given that DJB's endeavor to add counterclaims was doomed to failure, a fate explained in more detail below, the purported entitlement to a continuance based on the need for related discovery is all the less compelling. See Cong. Park Office Condos II, 105 So.3d at 607 (affirming the granting of summary judgment despite pending discovery and noting that "[a]ny requested discovery intended to prove" affirmative defenses that the appellants "waived their right to assert" was "superfluous and cannot create a genuine issue of fact"). The record on appeal in this case does not present support for the conclusion that the trial court abused its discretion by denying DJB's motion to continue the summary judgment hearing. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) ("Discretion . . . is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." (quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942))). What, if any, other reasons for or against a continuance might have been presented by the parties or the trial court at the summary judgment hearing are unavailable for consideration, given the lack of a transcript, and what DJB has presented on appeal does not support a conclusion that the trial court abused its discretion.
II. Motion to Amend to Add Counterclaims
DJB argues that the trial court abused its discretion by denying it leave to amend to add three counterclaims against the City and the Board. See Fayad v. Univ. of Miami, 307 So.3d 114, 118 (Fla. 3d DCA 2020) ("A trial court's ruling on a motion to amend a complaint 'will not be disturbed on appeal in the absence of an abuse of discretion.' "(quoting Lasar Mfg. Co. v. Bachanov, 436 So.2d 236, 237 (Fla. 3d DCA 1983))). The City argues that each of these claims was futile, DJB abused the privilege to amend because it was dilatory, and the City would be prejudiced by amendment because the violations pose a danger to the community. See Bill Williams Air Conditioning &Heating, Inc. v. Haymarket Coop. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991) ("[R]efusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.").
Contrary to the City's contention, there was no abuse of the privilege to amend as this was DJB's first requested amendment. See Fayad, 307 So.3d at 118 ("[I]t is undisputed that Dr. Fayad has not abused the privilege to amend as he had never amended the original complaint."). "[T]he bare timing of a motion to amend and whether counsel's failure to seek amendment sooner constituted 'neglect,' excusable or otherwise, are, at most, ancillary to the primary considerations of prejudice to the opposing party, abuse of the privilege, and futility of the proposed amended pleading." Reyes v. BAC Home Loans Servicing L.P., 226 So.3d 354, 356 (Fla. 2d DCA 2017). The fact that the first request to amend was filed only two weeks before a hearing scheduled on a motion for summary judgment did not ipso facto make the motion dilatory or an abuse of the privilege to amend. See id. at 35657. Compare Drish v. Bos, 298 So.3d 722, 724-25 (Fla. 2d DCA 2020) (holding that the first motion to amend filed sixteen days before the summary judgment hearing was not an abuse of the privilege of amendment), with Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992) (holding that dismissal of the fourth amended complaint with prejudice was not an abuse of discretion because "[t]here is simply a point in litigation when defendants are entitled to be relieved from the time, effort, energy, and expense of defending themselves against seemingly vexatious claims").
The trial court's basis for denying DJB leave to amend-that the claims were "not compulsory in nature and must be brought in a separate action"-was erroneous. Consideration about whether a counterclaim is compulsory or permissive is relevant in the context of whether a claim was waived in a subsequent suit due to the failure to raise it in a prior action. See, e.g., Biondo v. Powers, 805 So.2d 67, 69 (Fla. 4th DCA 2002) ("Failure to raise a compulsory counterclaim in the first suit will result in a waiver of that claim." (quoting Londono v. Turkey Creek, Inc., 609 So.2d 14, 19 (Fla. 1992))). In other words, compulsory counterclaims are those that must be brought in the present action. That does not mean counterclaims that are not compulsory cannot be brought. See Fla. R. Civ. P. 1.170(b) ("Permissive Counterclaim. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim." (emphasis added)). As such, the trial court's rationale that only compulsory counterclaims can be brought in the same action is mistaken.
On appeal, the City makes no attempt to justify the trial court's rationale for denying the motion to amend. Instead, the City persuasively argues that each of the counterclaims and third-party claims are futile as an alternative basis for affirming under the tipsy coachman doctrine. See Dade Cnty. Sch. Bd., 731 So.2d at 644 (explaining that "if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record"). "A proposed amendment is futile if it is insufficiently pled, . . . or is 'insufficient as a matter of law.' "Quality Roof Servs., Inc. v. Intervest Nat'l Bank, 21 So.3d 883, 885 (Fla. 4th DCA 2009) (first citing Thompson v. Bank of N.Y., 862 So.2d 768, 770 (Fla. 4th DCA 2003), and then quoting Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999)). Because the claims were futile, the trial court did not commit reversible error by denying DJB leave to amend to add the proposed counterclaims and third-party claims. See Dade Cnty. Sch. Bd., 731 So.2d at 644.
A. Counts I &II - Excessive Fines and Due Process Clauses of the Florida Constitution
In Count I, DJB alleged that "[a]s-applied, the City's aggregate fines of over $550,000.00 violate the Excessive Fines Clause of the Florida Constitution" and "[o]n its face and as-applied, the City's system of limitless fines for all non-irreparable code violations" and "imposition of fines of over $550,000.00 and the City taking or selling the real Property via foreclosure is a violation of the Excessive Fines Clause of the Florida Constitution." It argued that "[t]he City Code of Ord[i]nances, generally [chapter 9] and specifically, § 9-72 et seq. contemplates individual fines for specific violations, not a single daily fine for multiple violations." In Count II, DJB alleged that the City and Board's imposition of a single fine for multiple violations and its failure to have a mechanism to reduce the $250 daily fine as the property owner corrects individual code violations amount to a violation of the Due Process Clause of the Florida Constitution.
The City argues that DJB failed to exhaust its administrative remedies because it did not appeal from the Board's September 24, 2015, order. A litigant may not "seek injunctive relief in a court of equity, on the ground that a[n] . . . ordinance is invalid with respect to such person's property, without first having exhausted the administrative remedies." DeCarlo v. Town of W. Miami, 49 So.2d 596, 596 (Fla. 1950); accord Wood v. Twin Lakes Mobile Homes Vill., Inc., 123 So.2d 738, 740 (Fla. 2d DCA 1960) ("It is well settled that a party aggrieved by the application of a statute or ordinance must invoke and exhaust the administrative remedies provided thereby before he may resort to the courts for relief."). However, the "failure to file an appeal to the circuit court pursuant to section 162.11, Florida Statutes, is not technically an administrative remedy." Wilson v. County of Orange, 881 So.2d 625, 631 (Fla. 5th DCA 2004). The City also asserted that the challenges asserted in the counterclaims were barred by waiver, citing Ricketts v. Village of Miami Shores, 232 So.3d 1095, 1097 (Fla. 3d. DCA 2017).
DJB waived any arguments regarding the amount of the fine by failing to appeal from the Board's order entered on September 24, 2015. While challenges regarding the facial constitutionality of a statute cannot be raised in an administrative proceeding and can therefore be brought in a subsequent proceeding, Wilson, 881 So.2d at 631, as-applied constitutional challenges cannot be raised for the first time in a municipal-lien foreclosure action, Kirby v. City of Archer, 790 So.2d 1214, 1215 (Fla. 1st DCA 2001). Although DJB uses the phrase "on its face" and "as-applied" in Count I, that claim involves a purely as-applied challenge that contests the total amount of the fine imposed on DJB and the taking of his property by virtue of the single daily fine imposed for multiple violations. See Manatee County v. Mandarin Dev., Inc., 301 So.3d 372, 376 (Fla. 2d DCA 2020) ("In general terms, '[a] facial challenge considers only the text of the statute, not its application to a particular set of circumstances, and the challenger must demonstrate that the statute's provisions pose a present total and fatal conflict with applicable constitutional standards.' "(alteration in original) (quoting State v. Cotton, 198 So.3d 737, 742 (Fla. 2d DCA 2016))); Ogborn v. Zingale, 988 So.2d 56, 59 (Fla. 1st DCA 2008) ("A facial challenge considers only the text of the statute, not its application to a particular set of circumstances ...." (quoting Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004))). Count II similarly alleges an as-applied constitutional challenge regarding a single fine for multiple violations.
All the information about the workings of the City's purportedly unconstitutional fining regime with which DJB takes issue in its counterclaims was available in the order imposing the fine, which DJB failed to appeal. This court expresses no opinion on the rectitude of the City's practices or DJB's claims impugning them because this is not the appeal in which answers to those questions should have been sought. Because DJB's counterclaims involve causes of action other than facial constitutional challenges, DJB was required to appeal from the City's order that provided a single daily fine for multiple violations within thirty days from the date that order was executed. See § 162.11, Fla. Stat. (2015) ("An aggrieved party, including the local governing body, may appeal a final administrative order of an enforcement board to the circuit court....An appeal shall be filed within 30 days of the execution of the order to be appealed."); Brevard County v. Obloy, 301 So.3d 1114, 1117 (Fla. 5th DCA 2020) ("A party dissatisfied with an enforcement board special magistrate's order can either appeal that order or choose to be bound by it. However, it cannot initiate a collateral attack on that order by commencing a new action in circuit court. Put differently, while the circuit court has appellate jurisdiction to entertain a timely appeal of a special magistrate's order regarding enforcement of building and fire codes, it lacks procedural jurisdiction to otherwise entertain a collateral attack upon that order concerning matters that could have been properly raised on appeal."); Kirby, 790 So.2d at 1215 ("Kirby's as applied constitutional challenge may not be raised for the first time in the foreclosure action."). By failing to appeal from the Board's order entered on September 24, 2015, DJB waived any arguments in the lien-foreclosure suit regarding the amount of the fine or the fact that the Board's order contained a single daily fine for multiple violations. The claims raised in Counts I and II are therefore futile, and the trial court did not abuse its discretion by denying the motion to amend.
B. Count III - Estoppel
In Count III, DJB sought damages against the City for estoppel, arguing that it relied on the statements of a code enforcement officer who indicated that "as long as work was regularly progressing and eventually brought to code, the City would forgive any fines." The City contends that this claim is futile, arguing that the code enforcement officer lacked the authority to forgive the lien because under section 162.09, Florida Statutes (2015), only the Board can satisfy or release a lien. See § 162.09(3), Fla. Stat. (2015) ("A lien arising from a fine imposed pursuant to this section runs in favor of the local governing body, and the local governing body may execute a satisfaction or release of lien entered pursuant to this section."). But "[t]he essence of estoppel is that a person should not be permitted to unfairly assert inconsistent positions." Pelican Island Prop. Owners Ass'n v. Murphy, 554 So.2d 1179, 1181 (Fla. 2d DCA 1989). DJB alleged that the City previously had a "revenue-neutral" code enforcement scheme and a practice of forgiving fines. However, it failed to articulate any legal basis to hold the City liable for any alleged statements made by the individual code enforcement officer about lien-forgiveness. And the City does not explain how section 162.09(3) would defeat the vague reference to what might be an allegation of apparent authority (albeit a theory of apparent authority never fully elucidated by DJB in the trial court record or on appeal). See generally Campbell v. Osmond, 917 F.Supp. 1574, 1583 (M.D. Fla. 1996) ("[I]n Florida, actual authority is not necessarily a precondition to establishing the agency relationship since, under the doctrine of apparent authority, agency will arise when the principal causes or allows others to believe that the individual has authority to act on the principal's behalf." (citing Borg-Warner Leasing v. Doyle Elec. Co., 733 F.2d 833, 836 (11th Cir. 1984), cert. denied, 475 U.S. 1140 (1986))); see also Roessler v. Novak, 858 So.2d 1158, 1161 (Fla. 2d DCA 2003) ("The rationale for the doctrine of apparent authority is that a principal should be estopped to deny the authority of an agent when the principal permitted an appearance of authority in the agent and, in so doing, justified a third party's reliance upon that appearance of authority as if it were actually conferred upon the agent." (citing Liberty Mut. Ins. Co. v. Sommers, 472 So.2d 522, 524 (Fla. 1st DCA 1985))).
However, we need not reach the issue of the code enforcement officer's actual or apparent authority to bind the City because DJB's estoppel claim is futile for another reason. Estoppel is not a stand-alone cause of action. See Bair v. City of Clearwater, 196 So.3d 577, 584 (Fla. 2d DCA 2016) ("[T]his court and others hold that 'equitable estoppel is a defensive doctrine rather than a cause of action.' "(quoting Angelo's Aggregate Materials, Ltd. v. Pasco County, 118 So.3d 971, 973 n.3 (Fla. 2d DCA 2013))). Here, DJB chose to advance its estoppel theory based on alleged reliance on the statement of the code enforcement officer as a standalone claim seeking affirmative relief in the form of monetary damages-a cause of action that does not exist. Because DJB cannot in good faith allege a set of circumstances that would enable it to recover damages for estoppel, it is futile, and the trial court's denial of its motion to amend must be affirmed with respect to the estoppel counterclaim. See Dade Cnty. Sch. Bd., 731 So.2d at 644.
III. Summary Judgment
DJB argues that the trial court erred by granting the City summary judgment because the City failed to counter DJB's affirmative defense of estoppel, which was supported by Bourgeois' affidavit filed by DJB in opposition. The City argues that the estoppel defense is futile and that the affidavit was unsworn.
Contrary to the City's argument, Bourgeois' affidavit states the following: "BEFORE ME, the undersigned authority, personally appeared DONALD BOURGEOIS, who, being sworn, deposes and says ...." (Emphasis added). Nonetheless, summary judgment was properly granted for other reasons.
The affidavit of Bourgeois does raise a factual issue concerning whether a code enforcement officer informed Bourgeois that the City would forgive the lien if DJB eventually made the repairs. But this is entirely different from the estoppel defense that DJB pled in its answer and affirmative defenses, which was based upon the fact that the City charged the full daily fine notwithstanding the fact that DJB had remedied the "most or all" of the violations. Despite the material change in its underlying theory of estoppel, DJB failed to amend its affirmative defense, choosing instead to bring the theory as a standalone counterclaim. "[I]ssues not raised within the pleadings of a civil controversy are ordinarily deemed waived." Bank of New York Mellon for Certificateholders of CWABS, Inc., Asset-Backed Certificates, Series 2005-BC5 v. Bloedel, 236 So.3d 1164, 1166 (Fla. 2d DCA 2018); see also Cong. Park Office Condos II, 105 So.3d at 607 ("[A]ffirmative defenses must be pleaded or they are considered waived." (quoting Kersey v. City of Riviera Beach, 337 So.2d 995, 997 (Fla. 4th DCA 1976))). The fact that it raised the new estoppel theory in opposition to summary judgment did not relieve DJB of its obligation "to amend [its] pleadings in compliance with the rules of civil procedure." Congress Park Office Condos II, 105 So.3d at 607 ("[T]he borrowers failed to plead, or even argue, lack of standing as an affirmative defense. Furthermore, although the borrowers suggested fraud as a defense in their response to First-Citizens' motion for summary judgment, such a filing did not discharge their duty to amend their pleadings in compliance with the rules of civil procedure."); cf. B.B.S. v. R.C.B., 252 So.2d 837, 839 (Fla. 2d DCA 1971) ("An affirmative defense must be pleaded and not raised by a motion for summary judgment supported by an affidavit."). Raising the theory as a counterclaim was similarly insufficient because "counterclaims and affirmative defenses are separate and distinct," Haven Fed. Sav. &Loan Ass'n v. Kirian, 579 So.2d 730, 733 (Fla. 1991), and estoppel is not a standalone cause of action, see Bair, 196 So.3d at 584-85 (concluding that the court properly dismissed the equitable estoppel claim for failure to state a cause of action where the claim was "brought [as] a standalone claim of equitable estoppel seeking monetary damages"). This is not a scenario in which a bare-bones estoppel defense sufficient to place the plaintiff on notice was later fleshed out in anticipation of summary judgment proceedings. See Fla. R. Civ. P. 1.110(d) (indicating that the defense of estoppel be "set forth affirmatively"); Fla. R. Civ. P. 1.120 (setting forth defenses other than estoppel which must be plead with particularity). Rather, this was effectively a bait-and-switch, DJB's estoppel defense in opposition to summary judgment bearing no resemblance to the affirmative defense of estoppel asserted in its answer.
While this was not raised by either party on appeal, it is worth noting that the rules of civil procedure allow that "[w]hen a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, shall treat the pleading as if there had been a proper designation." Fla. R. Civ, P. 1.110(d). However, there is nothing in the record-which, as discussed, lacks a transcript of the summary judgment hearing-to indicate, for example, whether DJB sought to assert its proposed estoppel counterclaim as a theretofore unpled defense, whether the trial court treated it as such, and whether the City asserted (or the trial court found) reasons that such treatment would be unwarranted because "justice" did not "so require[]."
The federal summary judgment standard, as articulated in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), applies to motions for summary judgment filed after May 1, 2021. In re Amends. to Fla. R. of Civ. P. 1.510, 309 So.3d 192, 192-94 (Fla. 2020). Under this standard, the question is "whether 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' "Id. at 193 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The City met its burden of proving its entitlement to foreclose on the municipal lien. The burden then shifted to DJB. It had to "do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 193 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Because DJB failed to show that there was an issue of fact regarding a material issue as framed by the operative pleadings, summary judgment in favor of the City was proper. See Levin v. Rosenblum, 133 So.2d 577, 577 (Fla. 3d DCA 1961) ("[S]ummary judgment is proper in those instances where the pleadings, depositions, affidavits and exhibits on file in the cause fail to demonstrate that there is any triable issue of fact.").
Affirmed.
Opinion subject to revision prior to official publication.
VILLANTI, J., Concurs. KHOUZAM, J., Concurs in result only.