       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 14, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1879
                          Lower Tribunal No. 16-1926
                             ________________


                 The City of Sweetwater, Florida, et al.,
                                   Appellants,

                                        vs.

                            Orlando Lopez, etc.,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Barbara Areces,
Judge.

      Genovese Joblove & Battista, John H. Genovese and Jesus M. Suarez, for
appellants.

     Kluger, Kaplan, Silverman, Katzen & Levine, Todd A. Levine and Alan J.
Kluger, for appellee.


     Before EMAS, FERNANDEZ and LUCK, JJ.

     EMAS, J.
      INTRODUCTION

      This appeal arises from a dispute between the Mayor of The City of

Sweetwater and members of its City Commission.            Appellant, The City of

Sweetwater (“Sweetwater” or “the City”), Florida, by and through its City

Commissioners, Jose M. Diaz, Jose A. Bergouignan, Prisca Barreto, Manuel

Duasso, Idania Llanio, Isolina Marano and Eduardo Suarez (“the Commission”),

appeals the trial court’s entry of two final summary judgment orders in favor of

Orlando Lopez, Mayor of The City of Sweetwater (“Mayor Lopez”), on two

separate claims made in his complaint. We reverse the summary judgment order

on the first claim, as genuine issues of material fact remain in dispute as to the

underlying claim. We reverse the summary judgment order on the second claim,

and hold that the trial court should have dismissed the underlying claim as moot.

      FACTS AND BACKGROUND

      On July 17, 2015, Mayor Lopez submitted a proposed budget for

Sweetwater’s 2015-16 fiscal year that commenced on October 1, 2015 and ended

on September 30, 2016. In an attempt to compensate for the previous year’s deficit

due to increased expenses, this proposed budget increased Sweetwater’s millage

rate from approximately 2.74 mills to 4.5065 mills.1 On July 29, 2015, during a

1 A “mill” or millage is the rate to be applied, for example, in calculating the
amount of taxes imposed on real property, with one mill representing one dollar
per $1000 in assessed property value. See generally § 192.001, Fla. Stat. (2016).
As an illustration, applying the proposed millage rate of 4.5065 mills, a property

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special commission meeting, the Commission proposed to set Sweetwater’s

tentative millage rate for the 2015-16 fiscal year at 2.7493 mills, the same rate as

the previous fiscal year. Given this lower millage rate, and in order to propose a

balanced budget, Mayor Lopez instituted several layoffs effective August 14,

2015.

        Apart from its financial troubles, Sweetwater’s police department also

needed rebuilding. Mayor Lopez laid off several police officers and also hired four

former police officers from the City of Miami police department to comprise its

new command staff.

        On August 18, 2015, the Commission approved three resolutions:

Resolution 4089, directing Mayor Lopez to rescind any layoffs which took place

during the months of July 2015 and August 2015; Resolution 4090, imposing a

moratorium on layoffs lasting until September 30, 2015; and Resolution 4091,

directing Mayor Lopez to eliminate unbudgeted positions for the budget year

ending September 30, 2015 (the “Commission Resolutions”).

        Mayor Lopez vetoed all three Commission Resolutions, and the

Commission then overrode each veto. On August 26, 2015, the Commission

adopted Resolution 4092, providing for the elimination of funding for certain

positions within Sweetwater and prohibiting the use of nearly all “take home”



with an assessed value of $100,000 would be taxed in the amount of $450.65.

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vehicles by city personnel (the “Budget Resolution”), for the budget year ending

September 30, 2015. Again, Mayor Lopez vetoed the Budget Resolution and,

again, the Commission overrode his veto.

      Mayor Lopez issued a new proposed budget reflecting the lower millage rate

the Commission voted for and, on September 14, 2015, the Commission held a

special public hearing to consider Mayor Lopez’s new proposed budget. At the

meeting, the Commission approved Mayor Lopez’s new proposed budget as

Sweetwater’s tentative budget for the 2015-16 fiscal year (the “Tentative Budget”).

On September 21, 2015 and September 23, 2015, the Commission held two

meetings in which it proposed amendments to the Tentative Budget.              On

September 28, 2015, the Commission adopted certain budget amendments and

adopted a final budget (the “Final Budget”). On October 23, 2015, Mayor Lopez

vetoed the Final Budget. On October 28, 2015, the Commission overrode Mayor

Lopez’s veto of the Final Budget.

      On January 4, 2016, the Commission authorized, by a unanimous vote, the

filing of a lawsuit on behalf of the City of Sweetwater to resolve the City’s

disputes with Mayor Lopez. On January 25, 2016, Mayor Lopez filed suit against

the City and the Commission, seeking declaratory relief, injunctive relief, and an

alternative writ of mandamus. In his complaint, Mayor Lopez alleged that the

Commission’s 2015-16 Final Budget violated Florida law and the City Charter.



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Mayor Lopez also alleged that the Commission’s Resolutions (4089, 4090, and

4091) and the Budget Resolution (4092) infringed on the mayor’s executive

powers to appoint and remove city employees. In addition to filing suit, Mayor

Lopez vetoed the Commission’s Authorizing Resolution and on January 29, 2016,

the Commission overrode Mayor Lopez’s veto.

      On February 2, 2016, the City filed a petition for writ of mandamus (later

consolidated as a counterclaim to Mayor Lopez’s action) and on April 13, 2016,

the City filed an additional counterclaim seeking declaratory relief. Among other

things, the City sought to compel Mayor Lopez to implement the Final Budget. On

April 4, 2016, the Commission approved Resolution 4171, rescinding Resolutions

4089, 4090 and 4091.

      Thereafter, the parties filed cross-motions for summary judgment.

Following a hearing, the trial court granted summary judgment in favor of Mayor

Lopez and against the City on all counts. In doing so, the trial court found, among

other things, that: (i) the Commission’s Final Budget is unenforceable because it

violates the City Charter and Florida law and therefore, Mayor Lopez is authorized

to operate the City using the approved Tentative Budget until such time as the

Commission passes a final budget consistent with the Charter and Florida law; (ii)

the Commission Resolutions constituted an improper usurpation of the Mayor’s

administrative and executive authority; and (iii) the Commission lacked authority



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under the Charter to legislate funding for specific personnel positions through the

Budget Resolution.

      This appeal follows, and we review de novo the final summary judgment

order. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.

2000).

      ANALYSIS

      1. Summary judgment in favor of Mayor Lopez on the Commission’s
      2015-16 Final Budget

      The City of Sweetwater operates under a so-called “strong mayor” form of

government. Sweetwater’s legislative power is vested in the commission, while its

executive authority is vested in the mayor, who is responsible for the

administration of the city government. See City of Sweetwater Charter, §§ 3.01,

4.00 (“the Charter”).

      Section 5.01 of the Charter establishes the City’s budget adoption procedure.

First, the mayor delivers a budget message and proposed operating budget for the

next fiscal year to the city commission. In the budget message, the mayor must

include a proposed millage rate for ad valorem taxation in the next fiscal year.

Next, the city commission examines the proposed budget and the commission may

hold workshop meetings to consider the proposed budget. The commission may

also make tentative amendments to the proposed budget by majority vote and

adopt a tentative budget as required by state law. The commission must also


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consider the mayor’s millage rate proposal and adopt a tentative millage as

required by state law. Lastly, the commission “shall adopt the final operating

budget and millage for the next fiscal year . . . by resolution or ordinance, as

required by state law.” The Charter expressly provides that “[i]n the event the city

commission fails to adopt an operating budget for the ensuing fiscal year as

required by state law and this Charter, the city may continue fiscal operations as

provided by state law.”

      In addition, Section 5.02 of the Charter authorizes the commission to amend

the budget in the event the fiscal year revenues will be in excess of those estimated

or insufficient to meet the amount appropriated.

      As provided in the Charter, the budget must also comply with state law,

specifically, Chapter 166, Florida Statutes, which governs municipalities. Section

166.241(2) provides in relevant part:

      The amount available from taxation and other sources, including
      balances brought forward from prior fiscal years, must equal the total
      appropriations for expenditures and reserves. At a minimum, the
      adopted budget must show for each fund, as required by law and
      sound financial practices, budgeted revenues and expenditures by
      organizational unit which are at least at the level of detail required for
      the annual financial report under s. 218.32(1).

(Emphasis added.)

      The City contends the trial court erred in determining there were no genuine

issues of material fact and in granting summary judgment in favor of Mayor Lopez



                                          7
upon a determination that Mayor Lopez had the authority to refuse to implement

the 2015-16 Final Budget as passed by the Commission. We agree with the City

that summary judgment was improper, given the existence of genuine issues of

material fact.

      Mayor Lopez contended that he was authorized to refuse implementation of

the Final Budget, as passed by the Commission, because it was not a balanced

budget and because it failed to utilize sound financial practices, as evidenced by

the inclusion of $2 million in projected revenue from the sale of public land.2

Mayor Lopez supported this contention with an affidavit from Richie C. Tandoc, a

certified public accountant, who opined, inter alia, that the Final Budget adopted

by the Commission was not a balanced budget and was not prepared in compliance

with section 166.241(2) or in accordance with generally accepted accounting

principles.3


2 Mayor Lopez contended that this projected revenue was not “available” within
the meaning of section 166.241(2), because this public land: 1) had not been
appraised; 2) was not under contract for sale; 3) could not be sold unless such
action was approved by a referendum, as required by the Charter; and 4) had not
been the subject of a required referendum. Further, the City owed $1.9 million for
an existing line of credit that was due to be paid on November 1, 2015, which debt
was not included in the Commission’s Final Budget.
3 In addition, the City’s independent auditor, Carlos Trueba, testified that, as a
financial professional, he could not justify including in the budget the proceeds
from the sale of the public land, because doing so violated sound financial
practices and generally accepted accounting principles.


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      The City, in opposition to Mayor Lopez’s motion for summary judgment

(and in support of its own cross motion for summary judgment) submitted two

affidavits from Deede Weithorn, a certified public accountant retained by the City.

Ms. Weithorn averred that, in addition to her thirty-year career as a CPA, she led

the City of Miami Beach’s budget formulation during most of her eight-year tenure

as a Miami Beach City Commissioner. Ms. Weithorn opined, inter alia, that the

Final Budget was balanced and complied with the requirements of section

166.241(2).

      The competing affidavits submitted in support of the parties’ respective

positions created a genuine issue of material fact, and therefore the trial court erred

in entering judgment in favor of Mayor Lopez on this claim. Holl v. Talcott, 191

So. 2d 40, 43-45 (Fla. 1966); Taylor v. Florida City, 322 So. 2d 35 (Fla. 3d DCA

1975). We reverse the final summary judgment entered in favor of Mayor Lopez as

to the 2015-16 Final Budget and remand for further proceedings,

      2.    Summary judgment in favor of Mayor Lopez challenging the
      validity of the City’s Commission Resolutions and Budget Resolution
      for the 2014-15 fiscal year

      On August 18, 2015, the Commission adopted three Commission

Resolutions: Resolution 4089, directing Mayor Lopez to rescind any layoffs which

took place during the months of July 2015 and August 2015; Resolution 4090,

imposing a moratorium on layoffs lasting until September 30, 2015; and



                                          9
Resolution 4091, directing Mayor Lopez to eliminate unbudgeted positions for the

budget year ending September 30, 2015. On August 26, 2015, the Commission

adopted a Budget Resolution (Resolution 4092), providing for the elimination of

funding for certain positions within Sweetwater and prohibiting the use of nearly

all “take home” vehicles by city personnel (the “Budget Resolution”), for the

budget year ending September 30, 2015.

      Mayor Lopez vetoed the Commission Resolutions and the Budget

Resolution, and the Commission subsequently overrode those vetoes.          Mayor

Lopez did not enact or implement either the Commission Resolutions or the

Budget Resolution. Instead, four months later, in January 2016, Mayor Lopez

instituted the instant action below, challenging the validity of the Commission

Resolutions and the Budget Resolutions.       Three months after the action was

instituted, the City adopted a resolution (Resolution 4171) rescinding the

Commission Resolutions.

      The Commission Resolutions and the Budget Resolution all related to the

City’s 2014-15 fiscal year. These resolutions had all expired of their own accord

on September 30, 2015 (the last day of the fiscal year) before Mayor Lopez filed

his lawsuit challenging them.4      Further, the Commission Resolutions were

4 The Budget Resolution and the Commission Resolutions expired on September
30, 2015, the last day of the City’s 2014-15 fiscal year. By that date, neither the
Commission Resolutions nor the Budget Resolution had been implemented and
therefore could have no effect. Mayor Lopez did not file the subject action until

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expressly rescinded by the City during the pendency of the action below. These

circumstances, the City argues, rendered moot any challenge by Mayor Lopez

because no justiciable controversy existed for the trial court to resolve. We agree.

      “An issue is moot when the controversy has been so fully resolved that a

judicial determination can have no actual effect.” Godwin v. State, 593 So. 2d

211, 212 (Fla. 1992) (citing Dehoff v. Imeson, 15 So. 2d 258 (Fla. 1943)). A

narrow exception to the mootness doctrine permits courts to decide an otherwise

moot issue “[i]f the underlying dispute is ‘capable of repetition, yet evading

review.’” Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555, 563 (1980)

(quoting Southern Pacific Terminal Co. v. Interstate Commerce Comm’n, 219 U.S.

498, 515 (1911)). See also Morris Publ’g Grp., LLC v. State, 136 So. 3d 770, 776

(Fla. 1st DCA 2014) (holding that the mootness exception applies when “(1) the

challenged action was in its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there [is] a reasonable expectation that the same

complaining party [will] be subjected to the same action again”).

      We conclude that this exception is inapplicable to the instant case. There is

nothing to establish a reasonable expectation that the mayor will be subjected to

the same action again or that such a dispute is likely to recur.5 We also note that



January 25, 2016.
5 The City of Sweetwater was formed in 1941, and there is no evidence presented

upon this record to suggest such an issue has ever arisen in its 75-year history.

                                         11
the Mayor Lopez waited several months after adoption of the resolutions at issue

before filing suit to challenge their validity, undermining any assertion that this

action meets the “evading review” prong.6

      Because the Commission Resolutions and Budget Resolution expired of

their own accord or ceased to be capable of implementation, well prior to the

institution of the action below, the trial court erred in resolving challenges to their

validity. In the instant case there was no longer “a bona fide, actual, present, and

practical need for the declaration” sought by Mayor Lopez as to these Resolutions.

Dept. of Envtl. Prot. v. Garcia, 99 So. 3d 539, 544 (Fla. 3d DCA 2011). The

summary judgment on the Commission Resolutions and the Budget Resolutions

amounted to an advisory opinion which courts will not render.             Martinez v.

Scanlan, 582 So. 2d 1167, 1174 (Fla. 1991).




6 The circumstances of this case involve the executive and legislative branches of a
local government opposing one another regarding issues that at least touch upon
aspects of a political question, further cautioning against judicial intervention. See
Baker v. Carr, 369 U.S. 186, 217 (1962) (setting forth six criteria to be considered
in gauging whether a case involves a political question: (1) a textually
demonstrable commitment of the issue to a coordinate political department; (2) a
lack of judicially discoverable and manageable standards for resolving it; (3) the
impossibility of deciding without an initial policy determination of a kind clearly
for nonjudicial discretion; (4) the impossibility of a court's undertaking
independent resolution without expressing lack of the respect due coordinate
branches of government; (5) an unusual need for unquestioning adherence to a
political decision already made; or (6) the potentiality of embarrassment from
multifarious pronouncements by various departments on one question).


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      We agree that the trial court erred in reaching the merits of, and in entering

final judgment in favor of Mayor Lopez on, his summary judgment motion

regarding the Commission Resolutions and the Budget Resolution. We reverse

with directions to dismiss the claims as moot.

      CONCLUSION

      We therefore reverse the trial court’s two final summary judgment orders in

favor of Mayor Lopez, and remand with directions and for further proceedings

consistent with this opinion.




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