2nd DCA pushed — again — to rule on tree house

The Holmes Beach tree house owners may have gone out on a limb requesting another hearing before the 2nd District Court of Appeal.

The 2nd DCA already declined to hear the case — twice.

A third attempt to sway the appellate court came July 30 in the form of a motion seeking a full-court review by the owners’ Sarasota attorney, David Levin, of Icard, Merrill, Cullis, Timm, Furen & Ginsburg — and, as it has in the past, on Aug. 10, the city of Holmes Beach filed a response in opposition.

Such requests are rarely granted, according to legal experts.

And Levin’s request for review by the court’s 16 justices “appears untimely” under the appellate rules, according to James Birkhold, the clerk of the 2nd DCA.

There is a 15-day time limit — from the date of the decision — on such motions, he said.

A justice will decide on the motion’s timeliness and sufficiency. If the motion meets his or her approval, the case will be circulated to the entire court and called to a vote by any one of the justices, Birkhold added.

Levin’s motion may be an attempt at an end-around the 15-day rule because it requests the 2nd DCA to reconsider a July 22 denial order, rather than the court’s June 10 decision.

Time limits for such motions typically run from the appellate court’s initial decision.

“I’ve been here 20 years and I’ve never seen this before,” Birkhold said. “Unorthodox — that’s the word for it.”

In 2011, Lynn Tran and Richard Hazen built the two-story tree house at Angelinos Sea Lodge, 103 29th St., without state or city building permits, spending an estimated $50,000 — and sparking city code, state environmental and circuit court cases.

The owners filed the DCA case in October 2014, seeking to overturn 12th Circuit Court Judge Janette Dunnigan’s decision that upheld a July 2013 city code board ruling and required the tree house torn down if the owners failed to comply with city code.

Attorney James Dye, acting for the city of Holmes Beach, responded to Levin’s full-court request.

He wrote such motions are permitted “solely on the grounds the case or issue is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions.”

Levin’s motion argues that Dunnigan did not follow court precedent that uses good faith reliance as the standard to decide claims of misdirection.

The owners claimed they relied in good faith and built the tree house after a Holmes Beach building official told them they needed no permits.

However, Dye’s response points to a 1995 case that supports the judge’s finding.

“The circuit court found that the appellants’ reliance on the city employee’s statement was unreasonable, and they therefore did not show good faith,” he wrote.

The court did not create “a new wrinkle” and “therefore not sufficient grounds for a rehearing en banc,” he concluded.

Asked about a limit on Levin’s post-decision motions, Dye said, “This has got to be the absolute last time. Then again, they could take it federal court. But there has to be a federal question.”

Levin failed to return several calls or emails, requesting comment on the case.

Tran had no comment on Levin’s most recent filing, except to say she hopes it will work this time.

As far as taking the tree house issue to the voters or having another plan, she’s unsure what will happen next.

But Tran added, “Do you really think taking it down is the right answer?”