       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,




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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



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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



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(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



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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)



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(“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.




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