       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 27, 2015.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                                No. 3D14-2237
                          Lower Tribunal No. 14-20667
                              ________________

                              Graciela Solares,
                                    Appellant,

                                        vs.

                         City of Miami, etc., et al.,
                                    Appellees.

     An Appeal from the Circuit Court for Miami-Dade County, Daryl E.
Trawick, Judge.

      Carroll Law Firm, and Linda L. Carroll, for appellant.

       Victoria Mendez, City Attorney, John A. Greco, Deputy City Attorney,
Warren Bittner, Deputy Emeritus, and Forrest L. Andrews, Assistant City
Attorney, for appellee City of Miami; Feigeles Avallone & Haimo LLP, and Julie
Feigeles; White & Case LLP, and Raoul G. Cantero, Evan M. Goldenberg, and
Christopher Swift-Perez, for appellee Skyrise Miami, LLC; Greenberg Traurig,
P.A., and Alan T. Dimond, Elliot H. Scherker, Brigid F. Cech Samole, and Jay A.
Yagoda, for appellee Bayside Marketplace, LLC.


Before SHEPHERD, C.J., and SUAREZ and LOGUE, JJ.

      LOGUE, J.
      Graciela Solares filed a lawsuit challenging the City of Miami’s extension of

a lease with Bayside Marketplace, LLC, and allowance of a sublease of a portion

of the property to SkyRise Miami, LLC, for development of a tower. Although the

trial court ruled against Solares on the merits, it also indicated that it doubted

Solares had standing. The City’s voters subsequently approved the extension and

sublease in a referendum. In her appeal to this court, Solares candidly and

commendably conceded she brought her claims in her capacity as a citizen and

taxpayer, but that she had no special injury, different from the injury to other

citizens or taxpayers, and that her claim was not based on the violation of a

provision of the Constitution that governs the taxing and spending powers.

      For a court of law operating as one of the three branches of government

under the doctrine of the separation of powers, standing is a threshold issue which

must be resolved before reaching the merits of a case. Before a court can consider

whether an action is illegal, the court must be presented with a justiciable case or

controversy between parties who have standing. Ferreiro v. Philadelphia Indem.

Ins. Co., 928 So. 2d 374, 376 (Fla. 3d DCA 2006) (“The issue of standing is a

threshold inquiry which must be made at the outset of the case before addressing

[the merits].”).

      In a line of cases that Solares did not address in her briefs, the Florida

Supreme Court has repeatedly held that citizens and taxpayers lack standing to
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challenge a governmental action unless they demonstrate either a special injury,

different from the injuries to other citizens and taxpayers, or unless the claim is

based on the violation of a provision of the Constitution that governs the taxing

and spending powers. Sch. Bd. of Volusia Cnty. v. Clayton, 691 So. 2d 1066, 1068

(Fla. 1997) (“The requirement that a taxpayer seeking standing allege a ‘special

injury’ or a     ‘constitutional challenge’ is consistent with long established

precedent.”); N. Broward Hosp. Dist. v. Fornes, 476 So. 2d 154, 155 (Fla. 1985)

(“It has long been the rule in Florida that, in the absence of a constitutional

challenge, a taxpayer may bring suit only upon a showing of special injury which

is distinct from that suffered by other taxpayers in the taxing district.”) (citations

and quotations omitted); Henry L. Doherty & Co. v. Joachim, 200 So. 238, 240

(Fla. 1941) (stating that a mere increase in taxes does not confer standing on a

taxpayer seeking to challenge a government expenditure); Rickman v. Whitehurst,

74 So. 205, 207 (Fla. 1917) (requiring that taxpayer suffer special injury before

standing is conveyed).

      Applying the principles announced in these cases to her own admissions that

she had no special injury, Solares lacks standing. See Alachua Cnty. v. Scharps,

855 So. 2d 195, 198-99 (Fla. 1st DCA 2003) (holding a taxpayer with no “special

injury” lacked standing to challenge a resolution passed by a county which directed




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that a referendum be placed on a general election ballot, because no exception to

the “special injury” rule applied).

      The arguments advanced by Solares do not change this result. First, we

cannot, as Solares does, simply ignore these controlling precedents. As judges

sitting on a District Court of Appeal, “[w]e are bound to follow the case law set

forth by the Florida Supreme Court. . . .” Carrithers v. Cornett’s Spirit of

Suwannee, Inc., 93 So. 3d 1240, 1242 (Fla. 1st DCA 2012); see also Hoffman v.

Jones, 280 So. 2d 431, 440 (Fla. 1973) (“[A] District Court of Appeal does not

have the authority to overrule a decision of the Supreme Court of Florida.”); State

v. Lott, 286 So. 2d 565, 566 (Fla. 1973) (“[T]he District Courts of Appeal follow

controlling precedents set by the Florida Supreme Court.”).

      Second, the Supreme Court has made clear that “unique circumstances” are

not an exception to the standing requirement. Clayton, 691 So. 2d at 1068. Third,

a city charter does not rise to the level of the Florida Constitution for purposes of

creating an exception to standing. Unlike the taxing and spending provisions of the

Constitution, a city charter cannot expand or contract the principle of standing

which ultimately sounds in the express separation of powers provision of Article

II, Section 3 of the Florida Constitution.

      Fourth, cases recognizing the standing of property owners and residents to

challenge zoning decisions do not create an exception to the special injury


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requirement, they simply identify a type of special injury. Renard v. Dade Cnty.,

261 So. 2d 832, 837 (Fla. 1972) (“An aggrieved or adversely affected person

having standing to sue is a person who has a legally recognizable interest which is

or will be affected by the action of the zoning authority in question. The interest

may be one shared in common with a number of other members of the community

as where an entire neighborhood is affected, but not every resident and property

owner of a municipality can, as a general rule, claim such an interest.”).

      Finally, the argument that Solares must have standing because otherwise no

one would have standing is the perennial argument of parties that lack standing. It

presents the same reoccurring question with the same reoccurring answer. Even if

one accepts the doubtful assumption that no one else has standing, Solares’s

argument in this regard has been rejected repeatedly by such authority as the

United States Supreme Court, as recently as 2013: “[t]he assumption that if

respondents have no standing to sue, no one would have standing, is not a reason

to find standing.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1142 (2013)

(citations and quotations omitted); Schlesinger v. Reservists Comm. to Stop the

War, 418 U.S. 208, 227 (1974) (“The assumption that if respondents have no

standing to sue, no one would have standing, is not a reason to find standing.”). If

accepted, Solares’s argument would reduce standing to a nullity. Valley Forge

Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S.


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464, 489 (1982) (rejecting the argument that standing must be allowed to a party if

no one else has standing because “[t]his view would convert standing into a

requirement that must be observed only when satisfied”).

      These United States Supreme Court cases interpreting standing under the

federal constitution while obviously not binding on a Florida court’s interpretation

of standing under the Florida constitution are nevertheless persuasive. Florida

courts often look to federal cases when resolving issues of standing. See e.g., Dep’t

of Educ. v. Lewis, 416 So. 2d 455, 459 (Fla. 1982) (citing to Flast v. Cohen, 392

U.S. 83, 88 (1968), for the proposition that taxpayers have standing to challenge

statute alleged to exceed specific constitutional limits on the taxing and spending

power).

      Affirmed.




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