At Cosentino’s request, Court of Appeal dismisses his appeal of Circuit Court’s September 2018 ruling in favor of Sarasota County in North Beach Road case

Charter amendments issue still pending in Circuit Court

Mike Cosentino addresses the County Commission on Aug. 29, 2018. File photo

At the request of Siesta Key resident Michael Cosentino, the Second District Court of Appeal has dismissed his appeal of a Circuit Court’s 2018 ruling in favor of Sarasota County in the North Beach Road vacation lawsuit, The Sarasota News Leader has learned.

Cosentino filed the original lawsuit in June 2016.

On Nov. 15, Cosentino’s attorney filed a motion pointing out that all the claims between Cosentino and Sarasota County “have not been resolved and continue to be litigated” in the 12th Judicial Circuit Court.

Therefore, his attorney, Tracy S. Carlin of the Brannock & Humphries firm in Tampa, requested in that motion that the Second District Court of Appeal determine whether the appeal should proceed or dismiss it “without prejudice,” meaning a new appeal could be filed at a later time.

In its Dec. 3 decision, three judges writing for the Court of Appeal ordered that the case be dismissed “for lack of appellate jurisdiction.”

In a statement to the News Leader this week, Cosentino wrote, “Now we have the opportunity to supplement the record with the county produced documents that prove the validity of our allegations.” He added that he believes this step moves him closer to ultimate victory over the county.

In early September, Cosentino filed a new motion in the North Beach Road case, essentially asking the Circuit Court to throw out his existing complaint and let him start all over with his litigation. He argued that materials he has obtained prove “a years long collaboration” between two sets of North Beach Road property owners and the Office of the County Attorney to achieve what he characterizes as the fraudulent manipulation of county staff reports related to potential repairs of North Beach Road.

The presiding judge has yet to rule on Cosentino’s Sept. 11 motion.

The Office of the County Attorney does not comment on pending litigation, county spokesmen have told the News Leader on multiple occasions.

As a result of the Court of Appeal ruling, oral arguments that had been scheduled for Dec. 19 have been cancelled.

This is the view looking south at the vacated segment of North Beach Road. Image courtesy Sarasota County

In her Nov. 15 motion, Cosentino attorney Carlin pointed out that the county has a crossclaim pending against Cosentino in Circuit Court, and the trial judge has determined that that “is inextricably intertwined with the claims at issue in this appeal.”

“Thus,” she continued, “because there is no finality between Cosentino and the County, and Cosentino’s claims are not appealable [under the Florida Rules of Judicial Procedure], this Court lacks jurisdiction. The appeal should be dismissed, without prejudice, before this Court and the parties spend additional time and resources preparing for the oral argument currently scheduled for December 19, 2019.”

Carlin added, “Then, if an appeal is still necessary after all the claims between the County and Cosentino are resolved … this Court will have jurisdiction to hear it at that time.”

History of the litigation

Cosentino’s original lawsuit focused on the County Commission’s May 11, 2016 vacation of a 373-foot-long section of North Beach Road. Three sets of property owners along that segment had petitioned for the action, pointing out that the road had been damaged repeatedly over the years by storms and that the county had closed that section to traffic in 1993 because it was unsafe for vehicles.

Cosentino argued that the commission had violated a policy in the county’s Comprehensive Plan, which prohibited the vacation of any road segments along the water. However, only then-Commissioner Christine Robinson — citing that policy — opposed the property owners’ petition.

Subsequently, Cosentino established a nonprofit organization called Reopen Beach Road and began collecting signatures of registered county voters on petitions for two proposed Sarasota County Charter amendments related to the North Beach Road issue. He wrote the amendments, he said, as a supplemental means of trying to achieve the goals of his litigation.

County photos included in a 2013 Taylor Engineering Report show the condition of North Beach Road in October 2005. Image courtesy Sarasota County
This is a diagram illustrating a rock revetment installation. It was prepared by Taylor Engineering of Jacksonville in 2013 as the County Commission considered ways to stabilize North Beach Road on Siesta Key. Mike Cosentino has maintained that the county could have installed this type of system on North Beach Road to prevent further damage and once again permit vehicular access. Image courtesy Sarasota County

The first amendment called for the county to rescind the North Beach Road vacation or reacquire the affected part of the road. The second prohibited the County Commission from vacating any road segment with so much as a waterfront vista. Both won voter approval during the Nov. 6, 2018 General Election.

However, even before the election, one set of the original groups of petitioners for the road vacation filed suit, claiming that the amendments contravened state law in terms of the powers accorded to local government boards. The county also launched an effort to have the amendments declared void.

On Oct. 28, Circuit Judge Hunter Carroll ruled that Amendment 3.9 — regarding the directive for the county to rescind the road vacation — “is contrary to Sarasota’s Charter and is therefore invalid.” He also ruled that the first sentence of Amendment 3.10 — regarding future vacation petitions — violates the Florida Statutes. However, he ruled that the second sentence of Amendment 3.10 is “an encouragement to maximize rights-of-way use for public access and viewing waterfront vistas, while the third sentence “requires these areas to be made accessible to mobility-impaired persons whenever feasible.”

Thus, Carroll wrote, the first sentence could be severed from the rest of the text and the remainder of the amendment could stand.

This is Sarasota County Charter Section 3.9, which was approved on Nov. 6, 2018. Image courtesy of the Office of the Sarasota County Clerk of Court and County Comptroller

This is the text of Charter Section 3.10, also approved by voters on Nov. 6, 2018. Image courtesy of the Office of the Sarasota County Clerk of Court and County Comptroller

The county’s position on the appeal

In the county’s Nov. 25 response to Cosentino’s efforts to have the appeal dismissed, Assistant County Attorney David Pearce pointed out that the appeal “involves the trial court’s order granting partial final judgment which disposed of all pending claims against Sarasota County.”
The only portion remaining of the North Beach Road case involves one of the sets of property owners, who were allowed to intervene in the litigation.

After explaining all the background of the case, Pearce then wrote that Florida Rule of Appellate Procedure 9.110(k) “permits appellate review of partial final judgments …”

He argued that the Court of Appeal has jurisdiction “because the trial court’s [Sept. 11, 2018] order disposed of Cosentino’s existing claims as to the County.”

He did acknowledge that the day after the trial court judge granted that final judgment for the county, intervenors in the original lawsuit “dragged the County back into the case” through an amended counterclaim and third-party complaint. “For the first time,” Pearce added, those intervenors “named Sarasota County as a third-party defendant.”

The third-party complaint sought to stop the election on the proposed Charter amendments, he pointed out.

As County Administrator Jonathan Lewis explained in an Aug. 29, 2018 memo, the County Commission traditionally has conducted public hearings before approving ordinances to place Charter referendums on the ballot. Thus, the board followed that procedure on Cosentino’s amendments, after Sarasota County Supervisor of Elections Ron Turner certified that Cosentino had secured the necessary number of signatures on the petitions to comply with the County Charter’s stipulations for citizen-initiated petition drives.

Mike Cosentino has displayed a variety of Reopen Beach Road signs since the late spring of 2016. He kept this sign in his truck as he and his supporters worked to gather voters’ signatures on the petitions for his amendments. File photo

About two weeks after the filing of that third-party complaint, Pearce continued, the county filed its answer and then filed a new crossclaim against Cosentino and Reopen Beach Road. In that crossclaim, he noted, the county asked the court to declare that the amendments “were inconsistent with state law and vague.”

Pearce added in his Nov. 25 response, “The constitutionality of the charter amendments [is] not the subject of this appeal.” Furthermore, Pearce noted Judge Carroll’s ruling that found the amendments invalid.

Supporting Cosentino’s stance

Tracy Carlin. Image from the Bannock & Humphries website

In her motion on behalf of Cosentino, Carlin of Brannock & Humphries asserted that Florida Rule of Appellate Procedure 9.130 says that “only ‘final’ orders are immediately appealable.” Citing a 2002 Florida Supreme Court case, she added, “A final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary.”

In a case like this one, involving multiple parties, Carlin continued, “an order is considered final and appealable only if the order ‘totally disposes of an entire case as to any party.’” She cited the same Florida Rule of Appellate Procedure that Assistant County Attorney Pearce had noted in his motion.

If the county “wanted to bring the litigation to an end, it had its chance: the [September 2018] summary judgment order initially let it out of the case,” Carlin pointed out.

Yet,” she continued, prior to Cosentino’s filing this appeal, “It was the County itself that … inserted itself back into the mix with Cosentino by filing a crossclaim against him [over the Charter amendments].”

She added, “Although the procedural chronology is a bit unusual, unusualness cannot overcome the jurisdictional requirement that the ‘entire case’ be over before an appeal can proceed.”

If the Court of Appeal did not dismiss the appeal, Carlin pointed out, it would be “likely to see piecemeal appeals from the same underlying case — the very problem the final judgment rule is designed to prevent.”