The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOHN KELLERMAN and ROBERT ALLEN,
Appellants,
v.
THE BOARD OF TRUSTEES OF THE CITY OF HOLLYWOOD
FIREFIGHTERS’ PENSION SYSTEM and THE CITY OF HOLLYWOOD,
Appellees.
No. 4D20-2349
[January 5, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jack B. Tuter, Judge; L.T. Case No. 18-27523 CACE (07).
Elliot B. Kula and William D. Mueller of Kula & Associates, P.A., Miami,
and Jared A. Levy of Morgan & Morgan, P.A. West Palm Beach, for
appellants.
Robert D. Klausner, Adam P. Levinson and Blanca T. Greenwood of
Klausner, Kaufman Jensen & Levinson, P.A., Plantation, for appellee
Board of Trustees of The City of Hollywood Firefighters’ Pension System.
J. Robert McCormack of Ogletree, Deakins, Nash, Smoak & Stewart,
P.A., Tampa, for appellee The City of Hollywood.
CIKLIN, J.
John Kellerman and Robert Allen (“the plaintiffs”) appeal a final order
of dismissal entered in favor of the City of Hollywood (“the City”) and the
Board of Trustees of the City of Hollywood Firefighters’ Pension System
(“the Board”). We agree with the plaintiffs’ argument the trial court erred
by dismissing their complaint based on lack of standing. We reverse and
remand for further proceedings.
According to the second amended complaint’s allegations and
attachments, the plaintiffs were each employed as firefighters for the City
for over twenty years and retired in 2002 and 2003, respectively. In 1999,
the firefighters’ union and the City entered into a collective bargaining
agreement (“the 1999 CBA”) that contained a supplemental pension
benefit to “current pension recipients” who had been retired or entered
into the Deferred Retired Options Program (“DROP”) for ten years. In a
fiscal year, if the annual investment return on the pension fund’s assets
exceeded 8%, then eligible recipients would receive a portion of the excess
by way of this supplemental pension benefit, which is known as the “13th
check.” In October 2004, the City passed Ordinance 2004-25, which
provided for the 13th check benefit (“the 2004 Ordinance”).
In relevant part, the 2004 Ordinance provides:
Sec. 12.26. Supplemental pension benefit.
....
4. Eligible recipients for supplemental pension benefit
distribution shall be:
A. Current pension recipients who retired or entered into the
DROP at least ten (10) years prior to September 30th of the
year for which supplemental pension benefits are to be paid.
In 2011, the City passed an ordinance that reduced this benefit, and
the plaintiffs brought a class action suit against the City and the Board,
asserting various claims for breach of contract, violations of constitutional
and statutory law, and declaratory judgment. The Board moved to dismiss
the second amended complaint for lack of standing, arguing that a retiree’s
benefits are fixed to the pension plan in effect at the time he or she retired,
the plaintiffs retired in 2002 and 2003, and the 13th check benefit was
not codified until the 2004 Ordinance was passed, and, thus, the plaintiffs
were not entitled to the 13th check benefit.
The trial court granted the motion to dismiss for lack of standing on the
basis that the plaintiffs retired before 2004:
[T]he allegations in the Complaint demonstrate the existence
of the affirmative defense of standing, namely that Plaintiffs
retired before the 2004 ordinance that Plaintiffs rely upon in
claiming benefits in this case. The Court finds the Board’s
argument on standing well-taken and determines that new
class representatives shall be appointed in this action.
(Emphasis added.) Certain individual counts were also dismissed on other
grounds, but are not challenged on appeal.
2
“This court reviews an order granting a motion to dismiss de novo.”
Abraham & Assocs., Inc. v. Surrey Holding Corp., 939 So. 2d 332, 332 (Fla.
4th DCA 2006). “To rule on a motion to dismiss, a court’s gaze is limited
to the four corners of the complaint, including the attachments
incorporated in it, and all well pleaded allegations are taken as true.”
Swerdlin v. Fla. Mun. Ins. Tr., 162 So. 3d 96, 97 (Fla. 4th DCA 2014)
(citations omitted). “[I]f the face of the complaint contains allegations
which demonstrate the existence of an affirmative defense,” such as
standing, “then such a defense may be considered on a motion to dismiss.”
Llano Fin. Grp., LLC v. Yespy, 228 So. 3d 108, 112 (Fla. 4th DCA 2017)
(quoting Papa John’s Int’l, Inc. v. Cosentino, 916 So. 2d 977, 983 (Fla. 4th
DCA 2005)). However, a court may not look to factual allegations or
exhibits attached to a motion to dismiss to grant such a motion. See
Swerdlin, 162 So. 3d at 97-98.
“Standing requires a sufficient interest in the outcome of litigation
before the court will consider the matter.” Llano Fin. Grp., 228 So. 3d at
112; see also Fla. R. Civ. P. 1.210(a) (“All persons having an interest in the
subject of the action and in obtaining the relief demanded may join as
plaintiffs . . . .”). “A case or controversy exists if a party alleges an actual
or legal injury. An actual injury includes an economic injury for which the
relief sought will grant redress.” Sosa v. Safeway Premium Fin. Co., 73 So.
3d 91, 117 (Fla. 2011) (citations omitted).
The plaintiffs argue on appeal that they are entitled to the 13th check
benefit in accordance with the plain language of the 2004 Ordinance. The
City and the Board maintain that a retiree’s benefits are fixed in
accordance with the pension ordinances in effect at the time of his or her
retirement, and because the plaintiffs retired before the enactment of the
2004 Ordinance, they are not entitled to the 13th check benefit enacted
therein.
Local ordinances such as the 2004 Ordinance “are subject to the same
rules of interpretation as are state statutes; a court interpreting local
ordinances must first look to the plain and ordinary meaning of the words
in the ordinance.” See Town of Longboat Key v. Islandside Prop. Owners
Coal., LLC, 95 So. 3d 1037, 1041 (Fla. 2d DCA 2012). Where a word or
phrase is not defined in a statute, a court may “look to the common,
ordinary dictionary meaning of the word.” Interlatin Supply, Inc. v. S & M
Farm Supply, Inc., 654 So. 2d 254, 255 (Fla. 3d DCA 1995). “If the plain
and ordinary meaning is clear, then ‘other rules of construction and
interpretation are unnecessary and unwarranted.’” Longboat Key, 95 So.
3d at 1041 (quoting Rinker Materials Corp. v. City of N. Miami, 286 So. 2d
552, 554 (Fla. 1973)).
3
The 13th check provision within the 2004 Ordinance states that
“eligible recipients” are “current pension recipients” who have been retired
or in DROP for ten years. “Current pension recipients” and “pension” are
not defined by the 2004 Ordinance. Accordingly, we look to dictionaries
for definitions of those words. Black’s Law Dictionary provides several
relevant definitions for the word “current,” including, “[r]unning; now in
transit; present existence; now in progress; whatever is at present in
course of passage,” and “as applied to current obligations it denotes the
obligations then passing or present in its progress, the service rendered
and the compensation therefor measured by the time of the occurrence of
the event.” Current, BLACK’S LAW DICTIONARY (6th ed. 1990). In relevant
part, “pension” means “[a] regular series of payments made to a person (or
the person’s representatives or beneficiaries) for past services or some type
of meritorious work done; esp., such a series of payments made by the
government.” Pension, BLACK’S LAW DICTIONARY (11th ed. 2019).
“Recipient” means “[s]omeone or something that receives.” Recipient, THE
AMERICAN HERITAGE DESK DICTIONARY (1981).
Consistent with these definitions, the plain and ordinary meaning of
“current pension recipients” includes people who are receiving payments
from the pension fund when the Ordinance was enacted. Thus, under the
plain language of the ordinance, the people eligible to receive the 13th
check include anyone who was receiving pension payments and who had
been retired or in DROP for at least ten years prior to September 30 of the
year for which the 13th check is to be paid. In other words, the 13th check
provision applied to people who were already retired, and it was not merely
a benefit for those who retired on the date the ordinance was passed and
later.
The plaintiffs effectively alleged in the complaint that they were current
pension recipients. They alleged that they retired in 2002 and 2003,
respectively, and that they were current members of the pension system.
They further alleged, “Beginning in 2014, for each of fiscal years 2013
through 2018, [the plaintiffs] each received annual supplemental pension
benefit checks that were based improperly on the Board’s calculations
pursuant to the 2011 Ordinance.” (Emphasis omitted.) Finally, they
alleged that they were injured when their 13th check benefit was reduced
because of the wrongful enactment and/or application of 2011 Ordinance.
These allegations, taken as true, in conjunction with the plain language
of the 2004 Ordinance attached to the complaint, establish an actual
injury. Thus, the plaintiffs sufficiently alleged standing.
4
We reverse and remand for further proceedings.
Reversed and remanded.
GROSS and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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