54-Order Dismissing Amended Complaint 12-11-15 (00651553xBA9D6)IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT
IN AND FOR DUVAL COUNTY, FLORIDA
Gate Petroleum Company, a Florida
corporation,
Plaintiff,
vs.
Barry L. Adeeb, an individual, d/b/a Atlantic
Beach Diner, and Atlantic Beach Diner, Inc., a
Florida corporation,
Defendants.
Case No. 16 -2014 -CA -007714
Division CV -C
ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS AMENDED COMPLAINT FOR DECLARATORY JUDGMENT
This matter came before the Court on October 27, 2015 and November 23, 2015, on
Defendants Barry L. Adeeb and Atlantic Beach Diner, Inc.'s (collectively "Defendants") Motion to
Dismiss Amended Complaint for Declaratory Judgment (the "Motion"). The Court having
considered the Motion, the pleadings and the file, having heard argument of counsel and being
otherwise fully informed in the premises, holds as follows:
1. The Amended Complaint alleges that Plaintiff "intends to construct an automobile
service station, with an accompanying retail store (the "Service Station") ..." and "intends to design
and build a Service Station that will be constructed and landscaped in accordance with the Code of
Ordinances of the City of Atlantic Beach (the `Atlantic Beach Code'). Gate intends to provide
Adeeb with reasonable parking that is required by the Atlantic Beach Code or other applicable
regulation, or as may be determined by this Court." Am. Compl. IN 15, 17.
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2. Based upon these and other allegations, Plaintiff seeks a declaratory judgment that the
parking it intends to provide Defendants in the possible new construction satisfies its obligation
under the parties' lease.
3. The Amended Complaint does not identify what Plaintiffs intended plans and parking
would be, does not attach copies of the actual plans showing the specifics of the parking it intends to
provide, or allege that Plaintiff has actually obtained the necessary permits and approvals from the
City of Atlantic Beach to be able in fact to build the proposed Service Station and parking. Instead,
the allegations of the Amended Complaint allege only the possibility of future development of
unidentified plans, which again have not been actually approved by the City of Atlantic Beach for
construction.
4. A plaintiff is entitled to a declaratory judgment where: "(1) there is 'a bona fide, actual,
present practical need' for the declaration; (2) the declaration sought deals with 'a present,
ascertained or ascertainable state of facts or present controversy as to a state of facts;' (3) an
immunity, power, privilege or right' of the plaintiff depends on the facts or the law that applies to
the facts; (4) some persons have an 'actual, present, adverse and antagonistic interest' in the subject
matter; (5) all persons with an adverse and antagonistic interest are before the court; and (6) the
declaration sought does not amount to mere legal advice." Citizens Property Ins. Corp. v. Ifergane,
114 So. 3d 190, (Fla. 3d DCA 2012).
5. Plaintiff's Amended Complaint does not satisfy these requirements. At its core, the
Amended Complaint only presents the possibility of future development, with undefined plans,
potentialities and not certainties.
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6. The circumstances alleged in the Amended Complaint are analogous to those in City of
Gainesville v. Republic Inv. Corp., 480 So. 2d 1344, 1347-48 (Fla. 1985). There, the First District
Court of Appeal stated that "[t]he issue arises here because appellee filed its declaratory judgment
action before the City's approval process for lots one and four were completed.... Thus, regarding
lot four and the building size issue it raised, appellee instituted its suit before the Department of
Community Development and the Plan Board had an opportunity to review the preliminary site plan.
... Therefore, the City never took final action." Id. Upon these facts, the First District held that
there was no jurisdiction and dismissed the declaratory judgment action.
7. The Amended Complaint similarly alleges circumstances that are premature prior to
Plaintiff identifying the specifics of its proposed construction plans, and the City of Atlantic Beach
taking final action to approve such plans. Until this happens and is pled, Plaintiff can allege no bona
fide and actual present practical need for a declaration, and there is no present controversy as to a
present, ascertained state of facts regarding the proposed parking. Thus, a declaration by the Court
on the Amended Complaint would involve mere legal advice regarding matters that may or may not
ever happen.
8. For this reason, Plaintiff's Amended Complaint does not state a claim for declaratory
relief and this Court does not have jurisdiction to render such decision. See Ahearn v. Mayo Clinic,
2015 WL 6777122 (Fla. 1st DCA 2015); Apthorp v. Detzner, 162 So. 2d 236 (Fla. 1st DCA 2015).
Accordingly, it is hereby:
ORDERED AND ADJUDGED:
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9. Defendants' Motion to Dismiss Amended Complaint for Declaratory Judgment is
GRANTED without prejudice. Plaintiff shall have fifteen (15) days from the date of this Order to
serve a Second Amended Complaint.
DONE AND ORDERED this / aay of December, 2015, in Duval County, Florida.
Copies To:
John A. Tucker
Emily F. O'Leary
Foley & Lardner LLP
One Independent Drive, Suite 1300
Jacksonville, FL 32202-5017
Paul M. Eakin, Esquire
Eakin and Snead
599 Atlantic Boulevard, Suite 6
Atlantic Beach, Florida 32233
A. Graham Allen
Scott J. Kennelly
Carson Lange
Rogers Towers
1301 Riverplace Blvd, Suite 1500
Jacksonville, FL 32207-1811
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I-cl/W EY L. JAY
IRCUIT JUDGE