FRANK A. CIOLLI, APPELLANT,
v.
CITY OF PALM BAY, APPELLEE

Fla. 5th DCA | 2011-04-15
No. 5D09-4582
MONACO, C.J., and COHEN, J., concur.
59 So. 3d 295 Florida District Court of Appeal, Fifth District (2011) Positive Treatment
Cited by 17 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Frank Ciolli appeals a summary judgment foreclosing a code enforcement lien on his property. The court reversed because the City of Palm Bay failed to present competent evidence that Ciolli received proper notice of the underlying Code Enforcement Board hearing, creating a material factual dispute that precluded summary judgment.


Holding

The court reversed summary judgment because the City failed to present competent evidence that Ciolli received proper notice. An unauthenticated copy of a postal service receipt is not competent evidence under Florida Rule of Civil Procedure 1.510(c), and the receipt itself was inadequate because it did not identify what was mailed, whether the address was correct, or the relationship between Ciolli and the person who signed for the article.


Headnotes

[1] A party moving for summary judgment has the burden of proving the absence of any genuine issue of material fact and entitlement to judgment as a matter of law.

[2] A municipality must provide written notice of a Code Enforcement Board hearing by hand-delivery or mail as provided by statute.

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Key Quotes

“The unauthenticated copy of the postal service receipt was woefully inadequate to rebut Ciolli's affirmative defense and certainly did not "conclusively" establish that Ciolli received notice of the Code Enforcement Board proceedings.”

Establishes that the City's evidence was insufficient as a matter of law to overcome Ciolli's defense regarding lack of proper notice.

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Facts & Procedural History

On November 12, 2003, the City's Code Enforcement Board issued an order requiring Ciolli to cure violations (tall grass, weeds, debris, and graffiti) …

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Opinion of the Court
EVANDER, J.

EVANDER, J.

Frank Ciolli appeals from the entry of a final summary judgment foreclosing a Code Enforcement Board lien against his property. Because there was a material disputed factual issue regarding whether the City of Palm Bay had given Ciolli proper notice of its Code Enforcement Board proceedings, we reverse.

On November 12, 2003, after a hearing, the City’s Code Enforcement Board issued an order finding that Ciolli’s property had not been maintained in accordance with Palm Bay’s City code.1 The order further recited that Ciolli was required to bring the property into compliance within 15 days — after which a fine of $250.00 would be imposed for each day the violation(s) continued.

Ciolli allegedly failed to cure the violations and on February 12, 2004, the City filed a certified copy of the Code Enforcement Board’s order in the public records in an attempt to create a lien in favor of the City pursuant to section 162.09, Florida Statutes (2003).2

Approximately one year later, the City filed a complaint to foreclose on its claimed lien, alleging that Ciolli owed $10,475 as of January 21, 2005, plus prejudgment interest and attorney’s fees. Attached to the complaint was a certified copy of the order issued by the Code Enforcement Board.

Ciolli, a New York resident, was served a copy of the complaint in June 2005. Subsequently, Ciolli filed an answer and affirmative defenses. In his pleading, Ciolli alleged, inter alia, that he had not received proper notice of the Code Enforcement Board’s proceedings.

In December 2008, the City filed a motion for summary judgment. The motion was supported by an “Affidavit of Indebtedness” executed by the City Manager. In response to the City’s motion, Ciolli filed his own affidavit in which he asserted that he “was never served with proper notice of the City of Palm Bay Code Enforcement hearing and was continuously misled by [the City] as to the condition of the property in question and how [the City] would be handling this matter.”

In October 2009, the City filed an amended motion for summary judgment and a memorandum of law in support thereof. Attached to the memorandum was an unauthenticated copy of a return receipt from the United States Postal Service reflecting that an “article” addressed to Frank Ciolli had been delivered on October 28, 2003, to 7 Jessup Lane, West Hampton Beach, New York and signed for by Anita Ciolli.3

*297In its memorandum, the City argued that the receipt “conclusively” demonstrated that Ciolli had been given proper notice of the November 12, 2003, Code Enforcement Board hearing.

The standard of review of an order granting summary judgment is de novo. Lederer v. Orlando Utils. Comm’n, 981 So.2d 521, 522 (Fla. 5th DCA 2008). The party moving for summary judgment has the burden of proving the absence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Id. Pursuant to section 162.06, Florida Statutes (2003), the City was required to provide Ciolli with written notice of the Code Enforcement Board hearing by hand-delivery or mail as provided in section 162.12.4

In its lien foreclosure action, the City was required to show , that it had satisfied the statutory notice requirements. Little v. D’Aloia, 759 So.2d 17 (Fla. 2d DCA 2000). On appeal, Ciolli argues that a disputed issue of fact remains as to whether the City satisfied the notice requirements. We agree. The unauthenticated copy of the postal service receipt was woefully inadequate to rebut Ciolli’s affirmative defense and certainly did not “conclusively” establish that Ciolli received notice of the Code Enforcement Board proceedings. Indeed, the receipt does not reflect what “article” was mailed to Ciolli, whether the designated address was that of Ciolli and the nature of the relationship, if any, between Ciolli and Anita Ciolli. Furthermore, Florida Rule of Civil Procedure 1.510(c) provides that a party may rely upon “any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence” in support of a motion for summary judgment. An unauthenticated document attached to a memorandum of law does not fall within any of these permitted categories and does not constitute competent evidence. Romeo v. Romeo, 907 So.2d 1279 (Fla. 2d DCA 2005).

Alternatively, the City argues that Ciolli’s defenses are barred because Ciolli never appealed from the Code Enforcement Board order. We reject this argument as well. Not only did the City fail to present competent evidence that Ciolli had been provided proper notice of the November 12, 2003, hearing, it also failed to establish that Ciolli was timely provided with a copy of the Board’s ensuing order. The order’s certificate of service merely recites a conclusion that a copy of the order was “furnished by mail to Respondent and/or Respondent’s authorized counsel ...” No specific address was given in the certificate of service. While proof of mailing normally raises a rebuttable presumption that the mailed item was received, no such presumption arises when there is no evidence that the mailed item was sent to the correct address. See Star Lakes Estates Ass’n., Inc. v. Auerbach, 656 So.2d 271, 274 (Fla. 3d DCA 1995) (affidavit stating that notice was mailed to “the address listed in the *298Association’s records” was insufficient to create presumption that notice was received because affidavit did not list actual address to which notice was allegedly-mailed, thereby making it impossible to determine if notice was mailed to correct address). The Florida Supreme Court has opined that a due process violation likely occurs where an administrative order is entered but never actually provided to the litigants, and the 80-day period to file a timely appeal then passed. Millinger v. Broward County Mental Health Div. & Risk Mgmt., 672 So.2d 24, 27 (Fla.1996).5 Regardless, as previously noted, the City was required to show that it had complied with the statutory notice requirements.

REVERSED and REMANDED.

MONACO, C.J., and COHEN, J., concur.


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Cited By

  • Green v. Jpmorgan Chase Bank, N.A., 109 So. 3d 1285 (Fla. 5th DCA 2013)
    …C.J., and BERGER, J., concur. . See 12 U.S.C. § 2605(c)(1), (2)(B) (2011). . None of the other documents were authenticated. Unauthenticated documents cannot be used in support of a motion for summary [*1288] judgment. Ciolli v. City of Palm Bay, 59 So. 3d 295, 297 (Fla. 5th DCA 2011). . The copy of the note attached to the Bank s complaint did not contain this indorsement. However, this fact does not affect our analysis.…
  • Berkowitz v. Delaire Country Club, Inc., 126 So. 3d 1215 (Fla. 4th DCA 2012)
    …r evidence established that the attachments were what they purported to be. Because the Club’s attached documents were unauthenticated, they were not competent evidence, and the trial judge erred in considering them. See Ciolli v. City of Palm Bay, 59 So. 3d 295, 297 (Fla. 5th DCA 2011) (an unauthenticated document attached to a memorandum of law is not permitted under Rule 1.510(c), Florida Rules of Civil Procedure, and does not constitute competent substantial evidence). “A Florida court may not consider…
  • Shaffer v. Deutsche Bank Nat'l Tr., 235 So. 3d 943 (Fla. 2d DCA 2017)
    …ee, e.g„ BAC Funding Consortium Inc. IS-AOA/ATIMA v. Jean-Jacques, 28 So. 3d 936, 939 (Fla. 2d DCA 2010) (noting that an unauthenticated document attached as an exhibit to a motion did not constitute admissible evidence); Ciolli v. City of Palm Bay, 59 So. 3d 295, 297 (Fla. 5th DCA 2011) (noting that an unauthenticated document attached to a memorandum of law does not constitute competent evidence); Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991) (noting that an unauthenticated letter attached as a…
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