Neapolitan Enterprises, LLC v. The City of Naples, 185 So. 3d 585

Background

Neapolitan Enterprises sued the City of Naples and Olde Naples Building LLC seeking declaratory and injunctive relief, alleging the City improperly approved 76 parking-space credits that reduced the Building’s parking obligation.
In 2010 the Design Review Board (DRB) held a hearing on façade changes; Neapolitan received notice but the amended complaint alleges the DRB has no authority to decide parking and did not decide parking.
Olde Naples applied for a building permit in March 2011; plans included a notation by the Planning Director that parking credits had not been officially determined and would be determined by the Planning Director. A permit issued.
On September 2, 2011 the Planning Director sent a letter approving Olde Naples’ parking calculations, effectively allowing restaurant use without providing 76 off-street spaces. Neapolitan administratively appealed to the City twice; the City refused to hear the appeals.
Neapolitan filed a certiorari petition; the circuit court denied review for lack of jurisdiction, concluding the Planning Director’s letter was not quasi-judicial. Neapolitan then filed this declaratory-judgment action; the trial court dismissed it with prejudice, finding (among other things) that the DRB had already granted parking credits and that Neapolitan’s claims were barred.
The Second District reverses the dismissal and remands, holding the complaint survives a motion to dismiss because the complaint and its attachments do not establish the trial court’s factual findings and alternative defenses (res judicata, collateral estoppel, splitting, separation of powers) do not apply.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Planning Director’s September 2011 determination reducing required parking was ultra vires and subject to declaratory/injunctive relief	Neapolitan: the director’s action effectively granted a variance without following variance procedure (no notice/hearing), so it was ultra vires and void	City/Olde Naples: the parking credit was decided earlier (DRB Resolution 10-22) and any challenge had to be by timely certiorari; res judicata/collateral estoppel/splitting bar the suit	Reversed dismissal: complaint adequately alleges the Planning Director’s executive act and the record does not demonstrate DRB or prior judicial adjudication decided parking; merits to be litigated on remand
Whether dismissal on res judicata/collateral estoppel was proper	Neapolitan: prior certiorari proceedings were dismissed/denied for lack of jurisdiction and did not decide the merits	City/Olde Naples: prior certiorari and proceedings barred relitigation	Held: prior certiorari denial/lack-of-jurisdiction ruling was not an on-the-merits decision; res judicata/collateral estoppel do not apply
Whether the suit impermissibly splits causes of action	Neapolitan: prior certiorari was not an effective remedy and circuit court never reached merits	City: plaintiff should have raised declaratory/injunctive claims earlier	Held: splitting rule is an aspect of res judicata; because res judicata does not apply, splitting does not bar the claim
Whether separation-of-powers/justiciability bars review of the City’s executive action	Neapolitan: seeking relief for an ultra vires act, not to direct prosecutorial or discretionary action	Olde Naples: courts cannot supervise executive municipal discretion	Held: separation-of-powers argument rejected; ultra vires acts are reviewable via declaratory relief

Key Cases Cited

Hussey v. Collier Cty., 158 So. 3d 661 (Fla. 2d DCA 2014) (motion-to-dismiss review limited to complaint and attachments)
Ferguson Enters., Inc. v. Astro Air Conditioning & Heating, Inc., 137 So. 3d 613 (Fla. 2d DCA 2014) (de novo review of dismissal with prejudice)
Bolz v. State Farm Mut. Auto. Ins. Co., 679 So. 2d 836 (Fla. 2d DCA 1996) (affirmative defenses generally belong in the answer unless apparent on face of complaint)
Norwich v. Global Fin. Assocs., LLC, 882 So. 2d 535 (Fla. 4th DCA 2004) (trial court erred in taking judicial notice of prior final judgment outside complaint when dismissing on res judicata grounds)
Duncan v. Prudential Ins. Co., 690 So. 2d 687 (Fla. 1st DCA 1997) (complaint may incorporate prior proceedings so res judicata can be decided on motion to dismiss)
Parkway Bank v. Fort Myers Armature Works, 658 So. 2d 646 (Fla. 2d DCA 1995) (dismissal for lack of jurisdiction is not a decision on the merits)
Topps v. State, 865 So. 2d 1253 (Fla. 2004) (unelaborated per curiam denials are not decisions on the merits for preclusion)
Liberty Counsel v. Fla. Bar Bd. of Governors, 12 So. 3d 183 (Fla. 2009) (definition and reviewability of ultra vires acts)
Beau Monde, Inc. v. Bramson, 446 So. 2d 164 (Fla. 2d DCA 1984) (declaratory relief appropriate for ultra vires acts by private/local entities)
Nat'l Rifle Ass'n of Am., Inc. v. City of S. Miami, 812 So. 2d 504 (Fla. 3d DCA 2002) (declaratory relief for allegedly preempted/ultra vires municipal ordinance)
Town of Lauderdale-by-the-Sea v. Meretsky, 773 So. 2d 1245 (Fla. 4th DCA 2000) (municipal approval contrary to its ordinances is ultra vires and void)
Detournay v. City of Coral Gables, 127 So. 3d 869 (Fla. 3d DCA 2013) (municipal discretion to prosecute is executive and generally nonreviewable)