Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3625 _____________________________ FLORIDA DEPARTMENT OF TRANSPORTATION and THE FLORIDA HOUSE OF REPRESENTATIVES, Petitioners, v. MIAMI-DADE COUNTY EXPRESSWAY AUTHORITY, Respondent. _____________________________ Petition for Writ of Prohibition—Original Jurisdiction. June 25, 2020 BILBREY, J. The Petitioners seek a writ of prohibition to prevent the circuit court from proceeding further in a case instigated by the Respondent which seeks a declaratory judgment as to the constitutonality of several legislative enactments. Because we do not possess jurisdiction to issue such writ given the existence of an adequate remedy at law, the petition is denied. In 2019, the Florida Legislature enacted Chapter 2019-169, Laws of Florida, which among other things amended Chapter 348, Florida Statutes, to dissolve the Miami-Dade County Expressway Authority (MDX) and to transfer its assets and authority to the Greater Miami Expressway Agency (GDX), an agency newly created by the chapter. See §§ 348.0301–348.0318, Fla. Stat. (2019) (Greater Miami Expressway Agency Act). MDX was created in 1994 by the Miami-Dade County Board of County Commissioners by Ordinance Article XVIII, Section 2-128. Prior to the enactment of Chapter 2019-169, MDX controlled several expressways (toll roads) in Miami-Dade County. Such control was established by an agreement with the Florida Department of Transportation (FDOT) in 1996. After the Greater Miami Expressway Agency Act was enacted but before signed by the Governor, MDX filed a complaint seeking a declaration that the Act as well as several existing related statutes violate the home rule authority of Miami-Dade County and unconstitutionally impair MDX’s contracts. See Art. VIII, § 6(e), Fla. Const. Petitioners sought summary judgment below on the ground that MDX lacked standing to bring the particular causes of action stated in its complaint and that it lacked standing to sue. Further, Petitioners argued that FDOT was improperly named as a defendant and that a proper party, GDX, was not named. The trial court denied summary judgment as to each of these grounds and granted partial summary judgment in favor of MDX as to count 1 of its complaint. By that count, MDX sought a declaration that the Greater Miami Expressway Agency Act is an unconstitutional local law which violates Miami-Dade County’s home rule authority. In holding the Greater Miami Expressway Agency Act was unconstitutional, the trial court specifically found that “MDX has standing; MDX has capacity to bring [the] suit; FDOT is a proper party; and GMX, while it may be a proper party, is not an indispensable party.” Petitioner FDOT appealed that partial summary judgment to this court. * That appeal has been stayed pending a decision in this original proceeding. In Roberts v. Brown, 43 So. 3d 673, 677–78 (Fla. 2010), the Florida Supreme Court explained: * State of Florida Department of Transportation v. Miami- Dade County Expressway Authority, and Florida House of Representatives, 1D19-3653. 2 Prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction. It is preventive and not corrective in that it commands the one to whom it is directed not to do the thing which the supervisory court is informed the lower tribunal is about to do. Its purpose is to prevent the doing of something, not to compel the undoing of something already done. (Citing English v. McCrary, 348 So. 2d 293, 296–97 (Fla. 1977)). As the Florida Supreme Court also explained, the “writ is very narrow in scope and operation and must be employed with caution and utilized only in emergency cases to prevent an impending injury where there is no other appropriate and adequate legal remedy.” Mandico v. Taos Constr., Inc., 605 So. 2d 850, 854 (Fla. 1992) (emphasis added). Thus, “the writ has very limited application.” Scott v. Francati, 214 So. 3d 742, 748 (Fla. 1st DCA 2017); see also Florida Dep’t of Health v. Tropiflora, LLC, 265 So. 3d 673, 675 (Fla. 1st DCA 2019). Petitioners argue a writ of prohibition is warranted because MDX lacks standing to bring the declaratory judgment and because FDOT is not a proper party to the declaratory action. As noted, a writ of prohibition is not warranted where there is an adequate remedy at law. It is to be used only in an emergency, Tropiflora, and should not be used in place of an appeal, Pullins v. Candelaria, 291 So. 3d 168 (Fla. 1st DCA 2020). Petitioners have not demonstrated that their pending appeal is not an appropriate remedy to address the denial of their defenses that MDX lacks standing to bring the causes of action filed below and that FDOT is not a proper party to the declaratory action. Of course, only a party which has standing to bring a particular declaratory judgment action is entitled to the grant of declaratory relief. “The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.” Rosenhouse v. 1950 3 Spring Term Grand Jury, 56 So. 2d 445, 448 (Fla. 1952) (quoting White v. Manassa, 41 So.2d 395, 397 (Ala. 1949)). See also Rhea v. District Bd. of Trustees of Santa Fe College, 109 So. 3d 851, 859 (Fla. 1st DCA 2013). And of course, a declaratory judgment action must name a proper party as defendant. See Marcus v. State Senate for the State of Fla., 115 So. 3d 448 (Fla. 1st DCA 2013). Petitioners, therefore, may raise these cognizable issues in the pending appeal of the partial summary judgment, although we do not now pass on the validity of any argument Petitioners may raise in that appeal. Because it has not been demonstrated that Petitioners do not have an adequate remedy at law and that an “emergency” is presented, Mandico, 605 So. 2d at 854, and because the “writ of prohibition is never allowed to usurp the functions of an appeal,” State, ex rel. B. F. Goodrich Co. v. Trammell, 192 So. 175, 176 (Fla. 1939), we must deny the petition. Accordingly, the petition is DENIED. WOLF, J., concurs with an opinion joined by BILBREY, J.; M.K. THOMAS, J., concurs with an opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ WOLF, J., concurring. I concur in the well-written opinion of Judge Bilbrey. I write only to explain the distinctions between this case and the case of Scott v. Francati, 214 So. 3d 742 (Fla. 1st DCA 2017), a case which based on initial reading would seem to support issuance of the writ of prohibition. In Scott, this court granted a writ of prohibition because there was a lack of justiciable controversy and because Governor Scott was not a proper defendant. Id. at 749-50. The Scott court, however, recognized the limited scope of a writ of 4 prohibition and the unique facts involved in that case which supported issuance of the writ. Scott is distinguishable from this case in a number of important respects: 1. In Scott, the lack of the proper defendant was coupled with the jurisdictional defect of failing to allege a justiciable controversy. Thus, the trial court lacked subject matter jurisdiction. In this case a justiciable controversy is sufficiently alleged. 2. The defendant in Scott was the head of a branch of government, the executive. The public interest in not involving the head of the executive branch in unwarranted litigation solely as a result of holding that position involves irreparable injury. This case does not involve the same public interest, and therefore does not share the same irreparable injury which existed in Scott. Therefore, in this case, there is an adequate remedy which would preclude issuance of the writ of prohibition. 3. In Scott, the court stated there were no factual allegations that could be made in good faith which would have envisioned Scott as a proper defendant. Scott at 750. In this case, the Department of Transportation’s jurisdiction over state roads in Dade County may implicate the specific responsibilities of the Department over who is responsible for maintaining and overseeing those roads, an issue which is presented in this case. 4. In Scott, the requested writ of prohibition sought only to preclude further action by the circuit court. In this case, the relief sought in part is to overturn the trial court’s grant of a partial summary judgment in favor of respondent. A writ of prohibition is not the proper vehicle for overturning prior actions of the circuit court. Dexter Towing v. Mobley, 590 So. 2d 1090 (Fla. 1st DCA 1991). The proper remedy is an appeal to this court. I, therefore, concur. 5 M.K. THOMAS, J., concurring with opinion. I agree with my esteemed colleagues that denial of the writ of prohibition is appropriate. However, I write to highlight the unique procedural backdrop which compels this result. On July 15, 2019, FDOT filed a motion to dismiss the complaint asserting MDX lacked standing and legal capacity, FDOT was not a proper party, and GMX was an indispensable party defendant. Four days later, MDX filed a motion for partial summary judgment. A hearing on the motion to dismiss was conducted on July 25, 2019. The following day, the trial court issued an order denying the motion. On August 9, 2019, two weeks later, the parties argued the merits of MDX’s motion for partial summary judgment. On August 29, 2019, the trial court issued an order granting partial summary judgment in favor of MDX on count 1 of the complaint, finding the Amendment unconstitutional and declaring it void ab initio. The order again denied the affirmative defenses raised by FDOT in its motion to dismiss. A subsequent motion for rehearing was denied by order dated September 30, 2019. On October 7, 2019, FDOT filed this petition for writ of prohibition seeking dismissal of the action for lack of subject matter jurisdiction and that the “orders” of the trial court be quashed. * Three days later, on October 10, 2019, FDOT, pursuant to Florida Rule of Appellate Procedure 9.110(k), filed a notice of appeal of the orders granting the partial summary judgment and the motion for rehearing. In its notice of appeal, FDOT noted the following: To preserve its rights, and in an abundance of caution, the Department files this notice notwithstanding the significant doubts regarding whether the order is in fact an appealable partial final judgment under Rule 9.110(k). The Department has simultaneously filed a petition for a writ of prohibition with the First District challenging the jurisdiction of this court to proceed in adjudicating the underlying case. * The specific nature of relief requested by the petition is “to grant the petition and issue a writ of prohibition directing the trial court to vacate its orders and dismiss the proceeding below.” 6 Subsequently, FDOT filed a motion to stay briefing in the direct appeal pending disposition of the petition for writ of prohibition now before us. Over the objection of MDX, this Court granted the motion. It is undisputed that the petition for writ of prohibition and the direct appeal, filed within three days of one another, challenge the same issues and request identical relief. Thus, we are confronted with dual filings by a party arguably necessary, pursuant to the sequence of various orders issued by a lower court, to preserve its arguments on appeal. This dual filing, albeit sound legal strategy under the circumstances, by its very nature runs afoul of a mainspring of extraordinary writ relief—the absence of another available remedy. Prohibition will be invoked only in emergency cases to forestall an impending present injury where the party seeking the writ has no other appropriate and adequate legal remedy. English v. McCrary, 348 So. 2d 293, 297 (Fla. 1977). It is only proper where no other adequate remedy, such as appeal, is available. S. Records & Tape Serv. v. Goldman, 502 So. 2d 413, 414 (Fla. 1986); State ex rel. Schwarz v. Heffernan, 194 So. 313, 314 (Fla. 1940); Haridopolos v. Citizens for Strong Schs., 81 So. 3d 465, 468–69 (Fla. 1st DCA 2012). “The writ of prohibition is never allowed to usurp the functions of an appeal. . . .” State ex rel. B.F. Goodrich Co. v. Trammell, 192 So. 175, 176 (Fla. 1939); see also Benton v. Circuit Court for the Second Judicial Circuit, 382 So. 2d 753, 753 (Fla. 1st DCA 1980). Thus, the very existence of FDOT’s pending direct appeal knocks the proverbial legs out from under its writ of prohibition. Dual filings associated with a request for prohibition are not unprecedented. In Sparkman v. McClure, 498 So. 2d 892 (Fla. 1986), the supreme court confronted a request for prohibition while a direct appeal by the petitioner was pending. Affirming the dismissal of the writ of prohibition, the court explained, “this case reaches us in an improper procedural posture” as the petitioner had an adequate remedy by way of the pending direct appeal. Id. at 895–96. Likewise, this Court has dismissed writs of prohibition for failure to demonstrate entitlement to relief when another appropriate remedy existed in a pending direct appeal challenging the same issues. See Swearingen v. Pretzer, 273 So. 3d 1196, 1196– 97 (Fla. 1st DCA 2019) (Wetherell, J., concurring in result) (dismissal of prohibition appropriate “because the order 7 challenged in the petition is properly reviewed by appeal under rule 9.130(a)(3)(B) and this case is duplicative of the earlier-filed and still-pending appeal filed by these same petitioners challenging the same order”); Rhodes v. State, 213 So. 3d 1014, 1014 (Fla. 1st DCA 2017) (dismissing petition for writ of prohibition without prejudice to petitioner’s counsel raising the issues in the appeal pending before the court). Although FDOT expresses concern regarding the viability of its direct appeal, the case nonetheless remains pending. A court may not give a litigant an extraordinary remedy if the litigant has failed to use an ordinary one that would have served. Shevin ex rel. State v. Pub. Serv. Comm’n, 333 So. 2d 9, 12 (Fla. 1976); Holman v. Fla. Parole and Prob. Comm’n, 407 So. 2d 638, 638 (Fla. 1st DCA 1981); State ex rel. Dep’t of Gen. Servs. v. Willis, 344 So. 2d 580, 592–93 (Fla. 1st DCA 1977). We need not, nor should we, determine at this juncture the merits of the underlying arguments concerning justiciable controversy. See Broward Cty. v. Fla. Nat’l Props., 613 So. 2d 587, 588 (Fla. 4th DCA 1993). For purely procedural reasons, contemplating the applicability of Scott v. Francati, 214 So. 3d 742 (Fla. 1st DCA 2017), among others, is a bootless errand. We are constrained from granting extraordinary relief under these facts. Because of the pending status of the FDOT’s direct appeal in case 1D19-3653, another adequate remedy is available. Thus, the petition for writ of prohibition must be denied without prejudice to FDOT raising its arguments in that case or, if the direct appeal is dismissed as a non-appealable order, refiling the petition for writ of prohibition. _________________________ Daniel E. Nordby and Jason Gonzalez of Shutts & Bowen LLP, Tallahassee, for Petitioners. Glenn Burhans, Jr. of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Tallahassee, and Eugene E. Stearns of Stearns 8 Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, for Respondent. 9