BEACH TOWING SERVICES, INC.

v.

SUNSET LAND ASSOC.

[*1] Before: WALSH, TRAWICK and REBULL, JJ.

TRAWICK, J.

Petitioner, Beach Towing Services, Inc. ("Beach Towing"), seeks to quash a December 14, 2018 Order of the Planning Board (the "Planning Board") of the City of Miami Beach (the "City"), which approved an Application by Sunset Land Associates, LLC ("Sunset") and SH Owner, LLC ("SH") (together the "Applicants"), requesting Conditional Land Use Permits in Planning Board File Number 18-0168 (the "Final Order").

On October 10, 2017, Sunset filed a Land Use Board Hearing Application (the "Application") requesting Conditional Use approval for a five-story mixed use project containing both residential and commercial uses (the "Project"). The Project was to be developed on 0.77 acres located at 1733, 1743, 1747, and 1759 Purdy Avenue, and 1724, 1738, and 1752 Bay Road, Miami Beach, Florida (the "Subject Properties"). Sunset is the owner of three of the Subject Properties, while SH is the owner of five of these Subject Properties. Beach Towing is the lease holder and licensed business owner of a property located at 1349 Dade Boulevard, Miami Beach, Florida 33139, which is across the street from the proposed Project. The Planning Board heard the Application and rendered the Final Order. This petition followed. [*2] Certiorari review by this Court typically requires a determination as to whether: (1) procedural due process was accorded, (2) the essential requirements of the law were observed; and, (3) the administrative findings and judgment were supported by competent substantial evidence. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982). Beach Towing only raises the issue of whether the essential requirements of the law were observed.

Section 118-52(b) (Meetings and procedures) of the City of Miami Beach Code of Ordinances (the "Code") provides that:

Requests. All requests shall be submitted to the city attorney for a determination whether the request is properly such, and does not constitute a variance of these land development regulations. The jurisdiction of the planning board shall not attach unless and until the board has before it a written certificate of the city attorney that the subject matter of the request is properly before the board. The separate written recommendations of the planning director shall be before the board prior to its consideration of any matter before it. (emphasis added).

Beach Towing alleges that the City Attorney required the recusal of a Deputy City Attorney prior to that Deputy issuing the required certification that the subject Application did not require a variance from land development regulations (the "Certificate"). Based upon the Deputy City Attorney's purported recusal, Beach Towing contends that the Planning Board's Order was void ab initio and thus the Board lacked jurisdiction to consider the Application. However, Beach Towing [*3] failed to properly provide this Court with a record basis to support its claim that a recusal occurred.

"As a general rule, it is not appropriate for a party to raise an issue for the first time on appeal." Sunset Harbour Condo. Ass'n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005); see Robins v. Columbo, 253 So. 3d 94, 97 (Fla. 3d DCA 2018). Beach Towing never raised its recusal/jurisdictional argument below. Nevertheless, an exception exists where the issue for the appellate court's consideration is one of the lower tribunal's subject matter jurisdiction. See City of Miami v. Cosgrove, 516 So. 2d 1125, 1128 (Fla. 3d DCA 1987); see also Department of Revenue v. Vanamburg, 174 So. 3d 640, 642 (Fla. 1st DCA) 2015) (“Lack of subject matter jurisdiction may be raised for the first time on appeal.").

"[A]n unpreserved jurisdictional issue is properly before the appellate court only if the issue does not require a factual determination." P. Padovano, Florida Civil Practice § 8.8 FN 3 (2020 ed.) (emphasis added); see Florida Auto. Dealers Industry Ben. Trust v. Small, 592 So. 2d 1179, 1184 (Fla. 1st DCA 1992) (appellate review is only possible when resolution of the issue does not require factual determinations).

Here, the issue of whether a recusal occurred requires a factual determination by the Court as this issue was not raised or part of the record below. In an attempt to resolve this factual issue, Beach Towing improperly attached an email string to [*4] its Reply Brief. However, where documents that are not part of the record are attached to an appellate brief, they will not be considered by the appellate court. See Pedroni v. Pedroni, 788 So. 2d 1138, 1139 n. 1 (Fla. 5th DCA 2001). “[I]t is a basic tenet of the appellate process that an appeal is based only on evidence presented to the lower tribunal." Hughes v. Enterprise Leasing Company, 831 So. 2d 1240-41 (Fla. 1st DCA 2002); (citation omitted). “That an appellate court may not consider matters outside the record is so elemental that there is no excuse for any attorney to attempt to bring such matters before the court." Altchiler v. Dep't Prof'l Regulation, 442 So. 2d 349, 350 (Fla. 1st DCA 1983) Further, when an error is unpreserved, the alleged error must constitute a fundamental error in order to be reversible. Doty v. State, 170 So. 3d 731, 743 (Fla. 2015). A fundamental error is "one that 'reaches down into the validity of the trial itself' and 'could not have been obtained without the assistance of the alleged error." Id. at 743 (citations omitted); See Saka v. Saka, 831 So. 2d 709, 711 (Fla. 3d DCA 2002) (citing Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970) ("Fundamental error, which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action."). The City's Professional Staff's Report confirmed that the Application did not require a variance and thus the Application was properly before the Planning [*5] Board. Accordingly, the alleged error does not reach down to the validity of the proceeding itself.

Even if we were to consider the attachments to Beach Towing's brief, the result would be the same. The assistant city attorney who issued the certification at issue was acting on behalf of the city attorney. Assuming she lacked the authority to issue that certification because of some purported recusal, the attachments reflect that the city attorney plainly ratified her putatively unauthorized actions. "[A] principal may subsequently ratify its agent's act, even if originally unauthorized, and such ratification relates back and supplies the original authority." See Juega ex rel. Estate of Davidson v. Davidson, 8 So. 3d 488, 490 (Fla. 3d DCA 2009)(internal quotations and citation omitted).

As the essential requirements of law were observed, the Petition for Writ of Certiorari is hereby DENIED.

WALSH and REBULL, J.J. concur.