No. 3D18-1444.

282 So.3d 953 (2019)

SOHO REALTY, LLC, Appellant, v. The ALEXANDER CONDOMINIUM ASSOCIATION, INC., etc., et al., Appellees.

District Court of Appeal of Florida, Third District.

Opinion filed October 10, 2019.

Attorney(s) appearing for the Case

Becker & Poliakoff, P.A. and Perry M. Adair , and Lillian M. Farinas-Sabogal , Coral Gables, for appellant.

Boyd Richards Parker & Colonnelli, P.L. and Elaine D. Walter , and Yvette R. Lavelle ; Clausen Miller, P.C. and Ramy P. Elmasri (Tampa); Nelles Kostencki and Matthew S. Nelles (Fort Lauderdale), for appellees.


Appellant, Soho Realty, LLC ("Soho"), the owner of defined commercial units located within the Alexander All Suite Oceanfront Resort (the "Alexander"), challenges a grant of final summary judgment in favor of appellees, the Alexander Condominium Association, Inc. (the "Association"), Hora Management Program, LLC, and Beach Resort Suites, LLC.1 In the judgment, the lower tribunal determined that transient guests of the Alexander were not subject to specified registration requirements. For the reasons set forth herein, we discern no error and affirm.


The material facts are not in dispute. The Alexander is a mixed-use condominium consisting of residential and commercial units. Soho's commercial holdings include a front desk, a gift shop, restaurant spaces, a laundry facility, a freight elevator, banquet halls, office and storage spaces, cabanas, a boat dock, and an engineering department. Soho leases certain of these commercial units, including the front registration desk, to Yahav Enterprises, LLC ("Yahav").

Although the overwhelming majority of residential units are utilized for the purpose of transient occupancy, the Alexander also houses numerous permanent residents. Rentals of units are arranged either through a hotel rental program, operated by Yahav, or in some other manner outside of the hotel rental program. As owners are authorized to install keypads on the exterior of their units to facilitate keyless access, arranging a rental outside of the hotel program generally obviates any need for guests to register at the front desk.

Soho filed suit in the lower tribunal seeking a judicial declaration that, as a "suite hotel," the Alexander is compelled by the City of Miami Beach Code (the "City Code") to abide by certain front-desk registration requirements for transient guests. In its pleadings, Soho sought a determination that the failure by the Association to enforce the relevant City Code provision constituted a violation of its Declaration of Condominium (the "Declaration").2 Soho further offered to register all guests, through Yahav, for an obligatory fee.

Appellees sought summary judgment, contending the Association was not bound by the hotel suite registration requirement, as identified in the pleadings.3 During the pendency of litigation, the City amended its Code to expand the front-desk registration requirement. Thereafter, Soho filed a "Second Amended Complaint," designated within as "a supplemental complaint." The material allegations framed by the newly-filed pleading remained consistent; however, Soho referenced the City Code amendment.

The summary judgment motion was scheduled for hearing more than twenty days after filing. Subsequent to the hearing, the trial court granted summary judgment in favor of appellees on two grounds: (1) the Association was not bound to follow the registration requirements; and (2) the failure to adhere to the registration requirement constituted a non-conforming use. The instant appeal ensued.


"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000) (citing Menendez v. Palms W. Condo. Ass'n, 736 So.2d 58 (Fla. 1st DCA 1999)). Thus, we review an order granting summary judgment de novo. Id.


Soho asserts the trial court improvidently adjudicated the case, as the filing of an amended complaint rendered the previously-filed summary judgment motion moot, and further challenges the substance of the summary judgment ruling. We first address the former contention. In doing so, as a defending party "may move for a summary judgment in that party's favor as to all or any part thereof at any time," and the motion was served well after litigation commenced, we confine our analysis to whether the filing of the second amended complaint required the defending parties below to renew their previously-filed motion. Fla. R. Civ. P. 1.510(b).

"It is a long established rule of law that an original pleading is superseded by an amended pleading which does not indicate an intention to preserve any portion of the original pleading." Arthur v. Hillsborough Cty. Bd. of Criminal Justice, 588 So.2d 236, 237 (Fla. 2d DCA 1991) (citing Downtown Invs., Ltd. v. Segall, 551 So.2d 561 (Fla. 3d DCA 1989), review denied, 563 So.2d 633 (Fla.1990)). Nonetheless, Florida Rule of Civil Procedure 1.190(d) provides that a supplemental pleading may be used to set forth "transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." "Unlike an amended pleading, a supplemental pleading does not supersede the original, but assumes that the original pleading is to stand, and that the issues joined under the original pleading remain as issues to be tried in the action." 61A Am. Jur. 2d Pleading § 667 (2019). "Thus, a complaint and supplemental complaint are generally considered together as a single pleading." Id.; Anderson v. Epstein, 202 So.3d 893, 899 (Fla. 3d DCA 2016) ("Even where an amended complaint states a changed or new legal theory, the amendment will relate back when the original complaint gives fair notice of the general factual situation for the claim.") (citations omitted).

In the instant case, in its motion for leave to amend, Soho informed the trial court that "the proposed Second Amended Complaint may be more properly referred to as a Supplemental Complaint as contemplated by Florida Rule of Civil Procedure 1.190(d) entitled `Supplemental Pleadings.'" Accordingly, the trial court was permitted to consider both pleadings together.

Further, "the [supplemental complaint] filed in the instant case ... [made] no substantive" changes to the previously filed complaints. Coffman Realty, Inc. v. Tosohatchee Game Pres., Inc., 381 So.2d 1164, 1166 (Fla. 5th DCA 1980). Thus, "[t]he bottom line [was] still the same for both complaints." Id.; see also Mussler v. Comput. Leasing of Fla., Inc., 511 So.2d 1124, 1125 (Fla. 4th DCA 1987) (finding that the trial court erred in granting summary judgment as the amended complaint "contained material and substantial changes from those alleged in the original complaint" and the plaintiff's motion for summary judgment was only filed four days after the amended complaint). Accordingly, as "the purpose of the [summary judgment] rule is to put the opposing party on notice as to the grounds which will be asserted against [it]," and, here, Soho "was aware of the grounds before the motion was decided and therefore suffered no prejudice," we conclude that the trial court did not procedurally err by adjudicating the summary judgment motion filed prior to the supplemental complaint. Burns v. Consol. Am. Ins. Co., 359 So.2d 1203, 1206 (Fla. 3d DCA 1978).

Having discerned no procedural infirmity, we next examine the substance of the lower tribunal's ruling. In all iterations of its pleadings, including the supplemental complaint, Soho contended the Alexander was a "suite hotel," thus, subject to corresponding City Code registration requirements. It further asserted that the failure to adhere to those requirements constituted a violation of the Declaration.

At the time Soho initiated the instant dispute, the City Code provided, in pertinent part:

When a hotel unit contains cooking facilities it shall be considered as a suite hotel unit and shall conform with the following: ... (5) The building shall contain a registration desk and a lobby. (a) Any transient guest or occupant for a suite hotel unit must register at the registration desk. Those transient guest(s) or occupant(s) are prohibited from accessing the suite hotel unit without registration.

Miami Beach, Fla., Code § 142-1105(5)(a) (2016). Thereafter, the City Code was amended to extend the guest registration requirement to "apartment hotels." However, the suite hotel registration requirement remained substantially unaltered. The City Code defined "hotel" as follows:

[A] building occupied or intended to be occupied by transient residents, with all residents occupying hotel units and where ingress or egress may or may not be through a common lobby or office that is supervised by a person in charge at all times.

Miami Beach, Fla., Code § 114-1 (2016) (emphasis added).4 "Hotel unit" is defined as:

[A] room, or group of rooms, with ingress or egress which may or may not be through a common lobby, intended for rental to transients on a day-to-day, week-to-week, or month-to-month basis, not intended for use or used as a permanent dwelling and without cooking facilities. (This term includes a suite hotel unit, see section 142-1105.).

Miami Beach, Fla., Code § 114-1 (2016) (emphasis added).

In furtherance of summary judgment, appellees presented the unrefuted affidavit of the property manager for the Association, David Hess. Hess attested that a number of units at the Alexander are used as permanent residences. As an "ordinance must be given its plain and obvious meaning," and all residents of the Alexander do not occupy "hotel units," the lower tribunal properly determined that the Alexander is neither a "hotel," nor a "suite hotel" within the definitions promulgated under the City Code.5 Rinker Materials Corp. v. City of N. Miami, 286 So.2d 552, 553-54 (Fla. 1973) (citation omitted) ("[O]rdinances are subject to the same rules of construction as are state statutes."); see Stroemel v. Columbia Cty., 930 So.2d 742, 745 (Fla. 1st DCA 2006) ("In statutory construction, statutes must be given their plain and obvious meaning."); Great Outdoors Trading, Inc. v. City of High Springs, 550 So.2d 483, 485 (Fla. 1st DCA 1989) ("[T]he `plain meaning' rule [of construction] ... provides that words of common usage should be given their plain and ordinary meaning, since it is assumed that the legislative body knows the plain and ordinary meaning of the words used in statutes.") (citations omitted); see also Miami Beach, Fla., Code § 114-1 (2019) (excluding "permanent dwelling[s]" from the definition of "hotel unit"). Consequently, the Association was entitled to prevail on the declaratory action as a matter of law.6 See Hart Props., Inc. v. Slack, 159 So.2d 236, 239 (Fla. 1963) ("[I]ssues in a cause are made solely by the pleadings and... the function of a motion for summary judgment is merely to determine if the respective parties can produce sufficient evidence in support of the operative issues made in the pleadings to require a trial to determine who shall prevail."); Addison v. Carballosa, 48 So.3d 951, 954 (Fla. 3d DCA 2010) (A party is "bound by the issues as framed [in its] pleadings.") (quoting Assad v. Mendell, 550 So.2d 52, 53-54 (Fla. 3d DCA 1989)); Saralegui v. Sacher, Zelman, Van Sant Paul, Beily, Hartman & Waldman, P.A., 19 So.3d 1048, 1051 (Fla. 3d DCA 2009) ("[I]ssues that are not pled in a complaint cannot be considered by the trial court at a summary judgment hearing.") (quoting Fernandez v. Fla. Nat'l Coll., Inc., 925 So.2d 1096, 1101 (Fla. 3d DCA 2006)).

Accordingly, we find no error and affirm.7


1. Hora Management Program, LLC and Beach Resort Suites, LLC were both intervenors in the lower court proceedings.
2. The Declaration provisions under which Soho relied upon state, in relevant part: XXII. Obligations and Restrictions of Members and Owners In addition to the other obligations and duties heretofore set forth in this Declaration, every Unit owner shall: ... 22.03 Not use or permit the use of his Unit except for residential or resort transient purposes consistent with the laws of governing authorities having jurisdiction over the property. ... 22.18 Not make any use of a Unit that violates any laws, ordinances and regulations of any governmental body having jurisdiction thereof. ... XXV. Commercial Units ... The Commercial Units shall be used in accordance with applicable laws, including, but not limited to, Chapter 718 of the Florida Statutes, zoning regulations of the City of Miami Beach and regulations of the Department of Natural Resources. The Association shall not promulgate any rule or regulation which would limit or impair use of Commercial Units for purposes which are otherwise lawful. Subject to the foregoing, the Owner of a Commercial Unit has the right to permit the public use it and to charge a fee for the use of the Commercial Unit to both Owners and to the public. No action may be taken which adversely affects the rights and interests of the Commercial Unit Owners without their prior written consent.
3. The intervenors filed the relevant summary judgment motion below, which was joined by the Association.
4. The definition of "hotel" in the City Code has not been amended since the inception of suit.
5. As "[t]he most rigorous form of logic ... is the syllogism," Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 41 (2008), an examination of the following categorical syllogism further buttresses our analysis: Major Premise: All "suite hotels" are "hotels." Minor Premise: The Alexander is not a "hotel." Conclusion: The Alexander is not a "suite hotel."
6. "Where the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by the entry of summary judgment." Volusia Cty., 760 So. 2d at 131 (citation omitted).
7. As the trial court properly found the Alexander was not subject to the registration requirements set forth in the pleadings, we express no opinion regarding the application of the non-conforming use doctrine. See Rosenberg v. Cape Coral Plumbing, Inc., 920 So.2d 61, 64 (Fla. 2d DCA 2005) ("In ruling on a motion for summary judgment, the trial court is limited to the grounds raised in the motion.") (citation omitted).


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