        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                 THE CITY OF PALM BEACH GARDENS,
                             Petitioner,

                                       v.

              LOUIS F. OXENVAD, CARRIE GRUBER,
         MICHAEL GRUBER and ROBERT KLINE, individually,
                         Respondents.

                               No. 4D18-1758

                            [November 14, 2018]

   Petition for writ of prohibition to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; David E. French, Judge; L.T. Case
No. 502018CA004443XXXXMB.

   R. Max Lohman and Abigail Forrester Jorandby of Lohman Law Group,
P.A., Jupiter, for petitioner.

   Justus W. Reid of Reid Burman Lebedeker, West Palm Beach, for
respondents.

WARNER, J.

   The City of Palm Beach Gardens petitions for a writ of prohibition,
seeking to prevent the circuit court from exercising certiorari jurisdiction
in a challenge to an annexation ordinance. Specifically, the City contends
that the respondent’s petition was untimely filed, thus precluding the
circuit court from exercising jurisdiction. We agree and grant the writ.

    The City sought to annex a portion of land in Palm Beach County. After
various public notices and hearings, the ordinance was passed on January
4, 2018. The ordinance called for a referendum vote. That vote took place
on March 13, 2018, in favor of annexation. On April 12, respondents filed
a Petition for Writ of Certiorari in the circuit court, sitting in its appellate
capacity, challenging the annexation ordinance. The circuit court issued
an order to show cause on May 8, 2018, ordering the City to respond as to
why the relief in the petition should not be granted. The City then filed
this petition seeking to prohibit the circuit court from proceeding further
in the action. After considering the response, we conclude that the circuit
court’s jurisdiction was not timely invoked.

    Prohibition lies to prevent a court from acting in excess of its
jurisdiction. See English v. McCrary, 348 So. 2d 293, 297 (Fla. 1977). A
court “necessarily” determines its own jurisdiction by proceeding to act in
a cause. Id. at 298. Here, because the circuit court issued an order to
show cause, thus proceeding with the cause, it asserted jurisdiction and
a conclusion that the petition was timely filed. However, “the untimely
filing of a notice of appeal precludes the appellate court from exercising
jurisdiction.” See Peltz v. Dist. Court of Appeal, Third Dist., 605 So. 2d 865,
866 (Fla. 1992) (alteration added.); see generally English. Thus, a petition
for prohibition appropriately challenges the court’s exercise of its
jurisdiction. Peltz, 605 So. 2d at 866; see Rice v. Freeman, 939 So. 2d
1144 (Fla. 3d DCA 2006) (granting prohibition where the circuit court
sitting in its appellate capacity improperly exercised jurisdiction because
no timely notice of appeal had been filed from a money judgment in the
county court).

   Section 171.081, Florida Statutes (2017), sets forth the procedure for
challenging a municipal annexation.

      (1) Any party affected who believes that he or she will suffer
          material injury by reason of the failure of the municipal
          governing body to comply with the procedures set forth in
          this chapter for annexation or contraction or to meet the
          requirements established for annexation or contraction as
          they apply to his or her property may file a petition in the
          circuit court for the county in which the municipality or
          municipalities are located seeking review by certiorari.
          The action may be initiated at the party's option within 30
          days following the passage of the annexation or
          contraction ordinance or within 30 days following the
          completion of the dispute resolution process in subsection
          (2).

    In SCA Services of Florida, Inc. v. City of Tallahassee, 393 So. 2d 35, 36
(Fla. 1st DCA 1981), the court held that a prior version of this statute
allowed a petition challenging an annexation ordinance to be filed thirty
days from the passage of the ordinance, not the voter referendum. “The
thirty day time limitation of section 171.081 is designed for the purpose of
allowing any complaint challenging the procedures leading to passage of
an annexation ordinance to be brought to the attention of a municipality
prior to the expense of a referendum.” Id. at 36-37 (emphasis added).
Furthermore, as also noted in SCA, “the limited judicial review envisioned

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by Section 171.081 neatly interacts with Section 171.0413(2)(a), Fla. Stat.
(1979), which prohibits a municipality from scheduling a referendum to
approve an annexation ordinance until thirty days following passage of the
ordinance by the municipality.” Id. at 37 (alteration added).

   Although the statute now contains the word “may” as to when an action
can be initiated, it is a choice between bringing a petition after passage of
the annexation ordinance or after completion of a newly enacted dispute
resolution process. It is not a choice to wait until after the referendum
vote. The annexation ordinance in this case was passed on January 4,
2018. The respondents had thirty days from that date to file a petition
challenging the ordinance. Instead, they waited until thirty days after the
referendum vote to file their petition. This was well past the time allowed
under the statute.

   Because the language of the statute is clear, the circuit court was
without jurisdiction to proceed with the untimely petition challenging the
annexation ordinance. We therefore grant the petition, but withhold the
issuance of the writ, confident that the court will dismiss the petition in
accordance with the conclusion that its jurisdiction was not timely
invoked.

CIKLIN and LEVINE, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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