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6865 SW 64 ST_COURT CASE r ,* IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA MARIE D. VALENTI, GENERAL JURISDICTION DIVISION Plaintiff, CASE NO. 91-11783 CA 09 VS. CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, ORDER GRANTING DEFENDANT'S Defendant. MOTION TO DISMISS THIS CAUSE having come on to be heard before the Court on May 29, 1991, upon Defendant's Motion To Dismiss, and the Court having ` heard argument of counsel, and being otherwise duly advised in the premises, the Court finds that, although the instant action is properly transferable to the Appellate Division of the Circuit Court, Plaintiff has failed to file the instant action within thirty (30) days from the entry of the order being appealed, it is therefore, ORDERED AND ADJUDGED: 1. That the Defendant's Motion To Dismiss be, and the same is, hereby GR11NTED. DONE AND ORDERED in Chambers, at Miami, Dade County, Florida, this day of , 1991. O r TIN GREENB UM rcuit Judge Honorab a Martin Greenbaum Circuit Court Judge Copies Furnished To: Martin David Berg, Esquire Amado Alan Alvarez, Esquire 1 MARIE D. VALENTI, a IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR DADS COUNTY, FLORIDA, GENERAL JURISDICTION DIVISION VS . CASE NO. .- 91 - 11783 CA 09 CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, NOTICE OF HEARING (Motion Calendar ) Defendant. ( 103490) To: Amado Alan Alavarez., Esquire Attorney for Plaintiff 4960 R .W. 72 Avenue Suite 403 Miami, Florida 33155' PLEASE TAKE NOTICE that the Defendant 's Motion to Dismiss is set, for Hearing before the Honorable Martin , Greenbaum, one of the Judges in the above-styled Court, at 73 West Flagler Street, Miami, Florida 33130, on Wednesday, May 22.. 1991, at 8 :30 A.M. or as soon thereafter as may be heard. PLEASE BE GOVERNED ACCORDINGLY. I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Hearing was mailed to the above addressee this 8th day of May, 1991 . MARTIN DAVID BERG, P .A. Attorney for Defendant City of South Miami 19 West Flagler Street Suite 802, Biscayne Bldg. Miami, Florida 33130 Telephone: (30 a) 371-1631 MARIE D. VALENTI, IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN Plaintifi, AND FOR DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE No. : 91 - 11.783 CA 09 CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARDI MOTION TO DISMISS Defendant. (103490) The Defendant,. CITY OF SOUTH MIAMI, by and through its undersigneiJ counsel, files this Motion to Dismiss pursuant to Fla . R. Civ. 1P . 1. 140 and in support thereof says as follows : 1. failure to attach ing,tr Rments : a. Fla.. R . C` v. P, 1 .1310 (a) provides "all documiBnts upon which an action may be brought or a copy thereof shall be incorporated In or attached to the pleading" . b, Plaintiff would appeal an Order entered at a Code Enforcement Board Meeting of February 14, 1991 (see paragraph 11 of the Complaint) ; however, no copy of that Order is attached to the Complaint as an Exhibit . Defendant attaches a copy herewith as Exhibit"Al,l to demonstrate this Court's lack of jurisdiction of the subject matter and the statute of limitation with regard to an appeal of the Order . 2 . lacX_of jur.isJictign, of the subject aalt:_.eq_r,,: a . Paragraph 3 of the Complaint alleges this Court has jurisdiction pursuant to Florida Statute 162 *11 . That section, in I relevant part, provides: Appeals.- An aggrieved party may appeal a final administrative order of an enforcement board to the circuit court. guchan_aD ..al shall not. be .-a hP!A_rin2_�ft_e nov!2 -but shall -be I imited to gappo' late review (emphasis added) b. Plaintiff has of filed an appeal to the Appellate Division of the Circuit Court; Plaintiff has filed an original action for declaratory Judgment in the General jurisdiction Division. 3 . estonl2el/limitations - a. Florida Statute 162 .11 also provides the "appeal shall be filed within 30 days of the execution of .the order to be appealed . " b.. The Order which Plaintiff would appeal was made on February 14, 1991 . Plaintiff dated the Complaint March 18 • 1991 and obtained issuance of the Summons Match 19 - thus beyond the 30 day period in the Statute , WHEREFORE, and in view of the foregoing( the Defendant moves to dismiss the Complaint for lack of Jurisdiction and for failure to bring the action with the statutory period. I HEREBY CERTIFY that a true and correct copy of the forego,"t-tig motion to Dismiss was mailed to Amado Alan Alvarez, Esq. , Attorney for Plaintiffs, Jorge L. De La Osa, P .A. , Marina Lakes Business 2 .,L Park, 4960 S.W. 72nd Avenue, Suite 403, Miami, Florida 33155, this 8th day of May, 1991. MARTIN DAVID BERG, P .A. Attorney for Defendant city of South "Miami 19 test Plagler Street Suite S02, Biscayne Bldg, Miami , Florida 33130 Telephone: ( 305) 371-1631 c 3 1 CODE ENFORCEMENT BOARD j � I CITY OF SOUTH MIAMI DADE COUNTY, FLORIDA VIOLATOR: FILE NO. CB-91--7 VIOLATION: Construction w/o a Permit. Sec. 301, S Fl Building Name: Marie D. Valenti Code Street Address: 6865 SW 64 Street City: S. Miami, Fl. 33143 .THIS CAUSE came before the Code Enforcement Board on the 14th day of February, 1991. The evidence leads to the following Findings of Fact: Construction w/o a permit It is HEREBY ORDERED AS FOLLOWS: A FINE OF $75.00 PER DAY IS TO BEGIN ON FEBRUARY 15, 1991, CONTINUING UNTIL COMPLIANCE IS MET. DONE AND ORDERED this 14th day of FEBRUARY, 1 ATTEST: . Co orcement Board Secretary cc. i Exhibit "A" I i 1 April 22, 1991 hand--delivered Ms . Kathy Whitaker Judicial Assistant to Judge Martin Greenbaum Room 1217, Dade County Courthouse 73 West Flagler Street Miami, Florida 33130 Re: City of South Miami adv. Marie Valenti case no. 91 - 11783 CA 09 Dear Ms . Whitaker: This is to advise I am re-scheduling the Defendant City's Motion (to Dismiss for lack of Jurisdiction over the person of the City) to a later date . The Motion has apparently been made moot by the Plaintiff 's re--service of the City this past week . Therefore, neither party will appear at the April 23 Motion Calendar . I attempted to advise your office by telephone today, but there was no answer . Very truly yours, MARTIN DAVID BERG MDB/vz cc; Alan Alvarez, Esquire IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA MARIE D. VALENTI, GENERAL JURISDICTION DIVrISION Plaintiff, CASE NO. 91-11783 CA 09 VS. CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, Defendant. CIVIL ACTION SUMMONS THE STATE OF FLORIDA: To Each Sheriff of Said State: YOU ARE HEREBY COMMANDED to serve this summons and a copy of the complaint or petition in' this action on defendant: City Of South Miami Code. Enforcement Board by and through: H:norable Cath. McCann M y. City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Each defendant is required to serve written defenses to the complaint or petition on Plaintiff's attorney, Amado Alan Alvarez, Esquire, whose address is: Law Offices Of Jorge L. De La Osa, P.A Marina Lakes Business Park, 4960 S.W. 72nd Avenu ,° .. , Miami, Florida 33155, (305) 662-9343 within 20 days after service of this summons on that Defendant, exclusive of the day of service, and to file the original of the defenses with the Clerk of this Court either before service on Plaintiff's attorney or immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complaint or pe itio J C � 1 DATED ON , 19 MARSHALL ADER as Cler� o'Said C urt` _( : J b I.' 'r Y as Deputy Clerk IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA MARIE D. VALENTI, GENERAL JURISDICTION Plaintiff, DIVISION 91-11783 CASE NO. VS. d FLORIDA BAR NO. 746398 CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, COMPLAINT FOR Defendant. DECLARATORY JUDGMENT COMES NOW, the Plaintiff, MARIE D. VALENTI, by and through undersigned counsel, and hereby files her Complaint For Declaratory Judgment, and as grounds therefor states as follows: PARTIES 1. Plaintiff is sui juris and a resident of South Miami, Dade County, Florida. 2. Defendant, CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, (the "Board") , is a local government code enforcement board as such term is applied under the Local Government Code Enforcement Boards Act, (the "Act") , Sections 162 .01, et seq. , Florida Statutes. VENUE AND JURISDICTION 3. This Court has jurisdiction over the instant cause pursuant to Sections 86.011 and 162. 11, Florida Statutes. 4 . Venue is appropriate in this judicial district inasmuch as the real property subject of this action is located within this judicial district. 1 CASE NO. DECLARATORY JUDGMENT 5. On or about April 3, 1990, Plaintiff was issued a Notice Of Violation by the City of South Miami for building without a permit at her residence located at 6865 S.W. 64th Street, South Miami, Florida 33143, in violation of Section 301 of the South Florida Building Code, ' a copy of which is incorporated herein by reference and attached hereto as Exhibit "A". Such Notice instructed Plaintiff to correct the cited violation within 10 (ten) days. 6. Plaintiff was also advised by the City of South Miami that she had violated the 25' setback requirement proscribed by the Land Development Code of the City of South Miami, (the "South Miami Code") . 7. The City of South Miami advised Plaintiff that she was required to apply for a Variance, and thereafter obtain an appropriate building permit in order to terminate such violation. 8. On or about July 31, 1990, the City of South Miami Commission, (the "Commission") , held a public hearing on Plaintiff's Request For Variance and Plaintiff was unable to attend. 9. As a result of Plaintiff's inability to attend such hearing, the Commission denied Plaintiff's Request For Variance. 10. On or about August 15, 1990, Plaintiff gave the Commission written notice that it was appealing the Commission's 2 CASE NO. denial of Plaintiff's Request For Variance, a copy of which communicatiom is incorporated herein by reference and attached hereto as Exhibit 11. On or about February 14, 1991, a hearing was held before Defendant, wherein Plaintiff explained that she had attempted to correct the violation (building without a permit) by requesting a Variance. She also advised that the City of South Miami Planning and Zoning Hoard recommended to the Commission that her Request For Variance be approved, and that the Commission later denied her Request at the hearing on July 31, 1990 due to her inability to attend such hearing. 12. Defendant heard Plaintiff's testimony and argument of her undersigned counsel, and ruled that Plaintiff was in violation of the South Miami Code inasmuch as Plaintiff had violated the 25' setback restriction proscribed for RS-3 . property. Defendant thereby levied a daily fine of Seventy Five and 00/100 Dollars ($75. 00) commencing on the date of said hearing. 13. Defendant abused its discretion and exceeded its authority under the Act inasmuch as its assessed fine concerns Plaintiff's alleged violation of the 25 ' setback restriction without a Variance, and not Plaintiff's failure to obtain a building permit. Plaintiff was never cited for allegedly violating such restriction. WHEREFORE, Plaintiff, MARIE D. VALENTI, hereby prays this Honorable Court enter a declaratory judgment providing: (i) that 3 CASE NO. WHEREFORE, Plaintiff, MARIE D. VALENTI, hereby prays this Honorable Court enter a declaratory judgment providing: (i) that Defendant abused its discretion and exceeded its authority under Chapter 162, Florida Statutes, in connection with its Order of February 14, 1991, and (ii) that Defendant's Order of February 14, 1991 is declared null and void, and shall have no effect upon the Plaintiff or her subject property. Respectfully submitted, LAW OFFICES OF JORGE L. DE LA OSA, P.A. Attorneys for Plaintiff Marina Lakes Business Park 4960 S.W. 72nd Avenue Suite 403 Miami, Florida 33155 (305) 2-9343 By: Amado Alan Alvareii, Esqu' e Date 4 1. EXHIBIT "A" pct /'' f SWUM Miami .��r�/ ,I�iY1�61�W1�'� Miami 6130 Suns@l , South Miami, Florida 33143, 667.5691 NOTICE 0 F V I 0 L A T I O N Ic Date; i. Cr e JQ, �D%W7 Cv 6?,k1_0 7 � `ci 'e 5 CODS FZOTION VIOLATED& Sec. 101 of ' South Florida Building Code � '• fr'ESCRIPTION OT VIOLATION: it shall be unlawful to construct, enlarge, a.lte'r, repair, move, remove or demolish any building, structure, or anygart thereof: or any equipment, device or facility therein or there- on; or to install or alter any equipment for which provision is made or the installation of which is regulated by this Code= without first • having filed application and obtained a permit therefor, from the $ui.ldlnq Official, V lidated by payment therefor. TO WIT: y - , 5 L-4 ed Gl 5 id't c:•n�� u G UQVI t""13 VIU CORRECTION AND TIME LIMIT: f Gr �! 'rt'f't'►'�( �', by L-1 NZAT INOPUT2. 9v DATE: �� , ,&:7d TOU ARK HEREBY NOTIFIED TO CORRECT THE ABOVE VIOLATIONS) WITHIN THE TIME LIMIT SPECIFIED, FAILURE TO COMPLY WILL RESULT IN CHARGES BEING PILED AGAINST YOU WITH THE CODE ENFORCEMENT BOARD OF THE CITY OF SOUTH MIAMI , FLORIDA. STATUTE 162.09 AUTHORIZED THAT REPEATED VIOLATIONS COULD RESULT IN AN ASSESSMENT OF A PINK Of UP TO 4250.00 A DAY , WITHOUT HEARING , FOR EACH TIME THE VIOLA- I.A? 1 S "P RATIi D. l Code Baforceeent Off ice e' 1 qg PARKS ✓ (�1002�008 Taw fi r�;�^,t?/� 1�T. ,. I �M. y r. � t ��• CITY'aP..:so� 'MIAM) ,.: . '�+,�"'"•' 'ry 'ar �tiNS ,rDRIVE.',• ' ,. :R •-'. 11�1'.ColI 61'.B 'TMjdA . '100.UMBINCL MUCHAMICAU' 1'CNINtY , S•' ` (\!''• 'I ">�' .•? r��•�•�•�••�'`rI,'�.ui �' -'•n'�` r ' �e1ax¢D A1gprY4J L 1i ►liw 1 1 TH{,5e ;`11AS AP, ` 'C©U Q�T,GAi . A 014 "• Lj D ,NO, r,. ,.r PLY'WIIiCO�Ei'; . a •R •{REN ''�S �'• �. i fi.'. tY�.�/ ;•Iii•;' ;r� •'��� � `, j., i,;.''.• �. .y'� , 111• 4G A 6 A � ;t '.{,' .�'�llfr, TNCRR Im' A AMGC CM 'TWCNTV DOLLARS (f cco).AO"'A �11E+INOw•�C•T,ICiNACA1TL,1 WHICH MUST B[ rA16 TO ' '��•ti !1 GPl�larj' rr�R�.011i 'R/'fbA1,Tr WILL 119 ISSUiN TN 9 I NlaJtf ';1L ,• ,f '. .i ' �•! l i`/�f'�M EXHIBIT "B" 1AW FIRM OF JORGIU L. DE LA 08A, P.A. 4990 S.W. 72 AVENUE SUITE 403 MIAMI, FLORIDA 33166 JOROID L. DID LA OSA TEL: (305)992-9343 lUCIIARD J. ADAMS. JR. FAX: (305) 992-4937 August 15, 1990 Mr. David Walker Code Enforcement Officer South Miami City Commission 6130 Sunset Drive South Miami, Florida 33143 Re: Appeal of City Commission's Denial of Request for Variance by Marie Valenti, Heard July 31, 1990. Subject Property: 6865 SW 64th Street Lot 9, Block 3, TRANQUILITY ESTATES; . according to the Plat thereof recorded'. in Plat Book 78 at Page 64 of the Public` Records of Dade County, Florida. Dear Mr. Walker: Marie Valenti hereb y appeals a `'ll the City Commission s denial of her request for variance allowing a 21' rear.-setback within an RJ-3 zoning district. As grounds for the appeal, Ms Valenti cites the following: 1. Ms. Valenti received no type of formal notice of the July 31, 1990, hearing, as require& by. Section 20-5 of the Land Development Code of the City.'.of, South Miami. 2. Me. Valenti l s. remod®ling of the . s subj4o, ,,property constitutes a nonconforming use, permiss 'mfunder the Land Development Code of the City ofs ou. Diami. Section 4.8 (B) (1) of the Code in pertine j,l art states:• A structure . . . . . . erected in conformance with dimensional requirements in effect",*at the time of erection but which- at a subsequsnt�'.date fails to conform . . . . . . may continue to, be used . . . . . . . Mr. David Walker Code Enforement Officer South Miami City Commission August 15, 1990 Page 2 Section 4 .8(B) (2) (b) , referring to nonconforming uses as set forth in 4.8 (B) (1) above, further states: In the event of any remodeling or rebuilding, the remodeling or rebuilding shall not increase the extent of nonconformity The subject property was in existence prior to imposition of the current 25' setback requirement applicable to RS-3 zoned single family property, at a time when 211, was the effective setback limitation. At a minimum, the terrazzo floor of the subject property (mounted on a concrete base,' and possibly a screened-patio with corresponding• columns and roof) existed prior to the City's raising- .%the setback to 251 . As such, the subject property (as it currently stands and did so before the 251 setback limitation went into effect, at the 22.3' setback line) grandfathers the 25' setback limitation, and constitutes'. a'`' permissible nonconformity under the Code. Closing off, the existing patio in no way "increases the extent of 'nonconformity, " since the 22.3 ' setback remains unchanged. Ms. Valenti will submit record of the July •31, 1990, hearing as soon as the minutes of that hearing receive approval by Commission, and are accessible. Very truly yours, Richard J. Adams, Jr. Law Firm oft Jorge L. de la Osa, P.A. Attorneys for Marie Valenti RJA:pe cc: Marie Valenti '' ` MA .P.TE D. VALENTI , IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IV Plaintiff, AND FOR DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION vs CASE NO. z 91 - 11783 CA 09 CITY OF SOUTP 1,11AMI CODE ENFORCEMENT BOARD, a NOTICE OF HEARING (MOTION CALENDAR,) Defendant . (10341910 ) To: Amado Alan Allavarr�z, &�quire Attorney for Plaintiff 4960 S.W. 72 Avenue Suite 403 Miami, Florida 33155 PLEASE TARE NOTICE that the Mptlion to Dlsmiss for Lack of jurisdictlon on Perzon is set for He-Axing before the lionoral.le Martin Greenbaum, one of the Judges in the above-styled Court, at 73 West Flagler Strt,.-A.et, MiaMiL, Florida 33130, on Tuesday, April 23, 1991,, at 8 :30 A.M. or as soon thereafter as may be heard . PLEASE BE GOVERNED ACCORDINGLY. I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Hearing was mailed to the above addrersee this 15th day of April., 1991. MARTIN DAVID BERG, p .A. Attorney for Defendant City of Soutb Miami 19 West Flagler street Suite 802, Biscayne Bldg. Miami, Florida 33130 Telephone : ( 305) 37-1 -1,631. Apt, U MARIE D. VALENTI UIT COURT OF THE IN THE CIRC 11th JUDICIAL CIRCUIT IN Plaintiff, AND FOR DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. : 91 - 11783 CA 09 CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, MOTION TO DISMISS FOR LACK. OF JURISDICTION ON PERSON Defendant. (103490) The Defendant, CITY OP SOUTH MIAMI, by and through its undexsigned counsel, files this Motion to Dismiss pursuant to Fla. R. Civ. P . 1 . 140 (b) (211 solely for lack of jurisdiction over the person and not to confer jurisdiCtion by appearance or otherwise and in support thereof says as follows: 1 . This action purports to be a complaint against a municipality (see paragraph 2 of the Complaint) ; however, the Plaintiff has failed to comply with the requisites of the Florlda .Statutes, for service upon municipalities . 2 . Specifically, Plaintiff atempted to obtain Jurisdiction upon a municipality by serving the City Attorney. This Is not the means provided in the Florida Statutes , WHEREFORE, and in view of the foregoing, the Defendant moves to dismiss the Complaint for lack of Jurisdiction over the person of the City of South Miami . I HEREBY CERTIFY that a true and cortect copy of the foregoing Motion to Dismiss for Lack of Jurisdiction or). Person vas mailed to Amado Alan Alvarez, Esq. , Attorney for Plaintiffs, Jorge L. De La r� Osa, P.A. , Marina rakes Bu ibess Lark, 4960 S.W. 72nd Avenue, Suite 4 33., Miami, Florida 33155o this 5th day of April, 1991 MARTIN DAVID EtRGO P.A. Attorney for Defendant City of South Miai't'ii. 19 West Flaglor Street Suite 802, Biscayne Bldg. Miami, Florida 33130 Telephone : ( 305) 371_.1631. f IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA MARIE D. VALENTI, GENERAL JURISDICTION DIVISION Plaintiff, VS. CASE NO. 91---11'783 O� CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, Defendant. CIVIL ACTION SUMMONS THE STATE OF FLORIDA: To Each Sheriff of Said State: V/Y �-,a64 v��ip?/2 X17 7-d YOU ARE HEREBY COMMANDED to serve this summons and c py of the complaint or petition in this action on defendant: �D City Of South Miami Code Enforcement c:;& �3 by and through: Martin D. Berg, Esquire City Attorney City of South Miami 6130 Sunset Drive South Miami, Florida 33143 Each defendant is required to serve written defenses to the complaint or petition on Plaintiff's attorney, Amado Alan Alvarez, Esquire, whose address is: Law Offices Of Jorge L. De La Osa, P.A. , Marina Lakes Business Park, 4960 S.W. 72nd Avenue, Suite 403, Miami, Florida 33155, (30.5) 662-9343 within 20 days after servic of this summons on that Defendant, exclusive o_- , p and to file the original of the defenses wit tml Court either before service on Plaintiff's attorney or immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complaint or petition. DATED ON MAR 19 MI , 19 MARSHALL ADER as Clerk of Said Court Gtcv ell uow#fm/�7- by: MARMARA' HARPER as Deputy Clerk i z IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA MARIE D. VALENTI, GENERAL JURISDICTION DIVISION Plaintiff, 91-11783 CASE NO. VS. FLORIDA BAR NO. 746398 CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, COMPLAINT FOR Defendant. DECLARATORY JUDGMENT COMES NOW, the Plaintiff, MARIE D. VALENTI, by and through undersigned counsel, and hereby files her Complaint For Declaratory Judgment, and as grounds therefor states as follows: PARTIES 1. Plaintiff is sui juris and a resident of South Miami, Dade County, Florida. 2. Defendant, CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, (the "Board") , is a local government code enforcement board as such term is applied under the Local Government Code Enforcement Boards Act, (the "Act") , Sections 162 . 01, et seq. , Florida Statutes. VENUE AND JURISDICTION 3 . This Court has jurisdiction over the instant cause pursuant to Sections 86.011 and 162. 11, Florida Statutes. r: 4. Venue is appropriate in this judicial district inasmuch as the real property subject of this action is located within this judicial district. CASE NO. DECLARATORY JUDGMENT 5. On or about April 3, 1990, Plaintiff was issued a Notice Of Violation by the City of South Miami for building without a permit. at her residence located at 6865 S.W. 64th Street, South Miami, Florida 33143, in violation of Section 301 of the South Florida Building Code, a copy of which is incorporated herein by reference and attached hereto as Exhibit "A" . Such Notice instructed Plaintiff to correct the cited violation within 10 (ten) days. 6. Plaintiff was also advised by the City of South Miami that she had violated the 25' setback requirement proscribed by the .Land Development Code of the City of South Miami, (the "South Miami Code") . Y 7. The City of South Miami advised Plaintiff that she was U, quired to apply for a Variance, and thereafter obtain an appropriate building permit in order to terminate such violation. 8. On or about July 31, 1990, the City of South Miami Commission, (the "Commission") , held a public hearing on Plaintiff's Request For Variance and Plaintiff was unable to attend 9. As a result of Plaintiff's inability to attend such hearing, the Commission denied Plaintiff's Request For Variance. 10. On or about August 15, 1990, Plaintiff gave the Commission written notice that it was appealing the Commission's 2 CASE NO. denial of Plaintiff's Request For Variance, a copy of which communication is incorporated herein by reference and attached hereto as Exhibit "B". 11. On or about February 14, 1991, a hearing was held before Defendant, wherein Plaintiff explained that she had attempted to correct the violation (building without a permit) by requesting a Variance. She also advised that the City of South Miami Planning and Zoning Board recommended to the Commission that her Request For Variance be approved, and that the Commission later denied her Request at the hearing on July 31, 1990 due to her inability to Lattend such hearing. 12. Defendant heard Plaintiff's testimony and argument of her undersigned counsel, and ruled that Plaintiff was in violation of 4 /A(the South Miami Code inasmuch as Plaintiff had violated the . 25 ' setback restriction proscribed for RS-3 property. Defendant _ l� thereby levied a daily fine of Seventy Five and 00/100 Dollars � ($75. 00) .commencing on the date of said hearing. 13 . Defendant abused its discretion and exceeded its uthority under the Act inasmuch as its assessed fine concerns Plaintiff's alleged violation of the 25 ' setback restriction without a Variance, and not Plaintiff's failure to obtain a building permit. Plaintiff was never cited for allegedly violating such restriction. WHEREFORE, Plaintiff, MARIE D. VALENTI, hereby prays this Honorable Court enter a declaratory judgment providing: (i) that 3 CASE NO. WHEREFORE, Plaintiff, MARIE D. VALENTI, hereby prays this Honorable Court enter a declaratory judgment providing: (i) that Defendant abused its discretion and exceeded its authority under Chapter 162, Florida Statutes, in connection with its Order of February. 14, 1991, and (ii) that Defendant's Order of February 14, 1991 is declared null and void, and shall have no effect upon the Plaintiff or her subject property. Respectfully submitted, LAW OFFICES OF JORGE L. DE LA OSA, P.A. Attorneys for Plaintiff Marina Lakes Business Park 4960 S.W. 72nd Avenue Suite 403 Miami, Florida 33155 (305) 2-9343 2 gy: G_�Xv urL Amado Alan Alvare , Esquy e Date 4 1 EXHIBIT "A" ,pt ' •c aw of S".. Miami • 6130 Sunni V1, South Miami, Florida 33143, 667.5691 NOTICE OF VIOLATION 1C � ; +i►I:ic:� +�^' { Date: 2ar M : V t.'. . 1 'CODS SZCTION VIOLATED& Sec. 101 -of . South Florida Building Code DESCRIPTION OF VIOLATION: It shall be unlawful to construct, enlarge, alter, repair, move, remove or demolish any building, structure, or any-part thereof= or any equipment, device or facility therein or there- on; or to install or alter any equipment for which provision is madq or the installation of which is regulated by this Codes without first having filed application and obtained a permit therefor, from the $wild-.ng Official, v lidated by payment therefor. TO WIT.C•r������ VGLl� l�vt �N 9� ''Q1J11dGNEil9'S V',U CORR$CTION AND TIME LIMIT: � �r,� r� �► hot ve :'f"eM C1 Oc.1cty5 + a Cofrecf -( h V jo1C(+(0M. :e(.itll'ti'4!:K•rt:•1 gt4:l 1:k•..jJ.Gl1;' 11; / �I� T 2#6P ':,CTION DATR: :�� //C/&7d YOU ARK HEREBY NOTIFIED TO CORRECT THIi ABOVE VIOLATION(S) WITHIN THE TIMX LIMIT SPECIFIED. FAILURE TO COMPLY WILL RESULT IN CHARGES BEING PILED AGAINST YOU WITH THE CODE ENFORCEMENT BOARD OF THE CITY OF SOUTH MIAMI , FLORIDA. STATUTE 162.09 AUTHORIZED THAT REPEATED VIOLATIONS COULD RESULT IN AN ASSESSMENT OF A FINE Of UP TO 4250.00 A DAY , WITHOUT HEARING, FOR EACH TIME THE VIOLA- Code EQ10CCement Officer - 14.49 12 850979 _ PARKS 1 .0002/006 ;Y b•.1 as•1�',i��'., ;tl //� .�,tV. ;'y,Y• ,'� r•�,:'tt 1\ •••�.•1.�/ ,.,•VAj'"• ;[�. , C1:TY•QF...: 0 •MIAMI:' t ,� l!i/: '`ti;•�►.. 6130;isuNS , •.,QRIVE.� , (�t1�pIT1" M.evmlfi'-A4•�!'MUMBINO' MKCM/WICALd 1'ONINO' r1 '� • {i�t! �� ;�': `1. �Y.�.. i• •.'1.•.' ;;�1' �'r ', X41 .yr '''yh:�. ,i •,] ..lea A II�P.Vs11A0 N INS QTHis: ;w4AS A , 'COUL Q�T,GIy,i I r ` E D ll R NOS �. ' rPt_1f•IWIvkcoclE•• •` `N•. IRLME •'i,S ■Y�.il••• 4 ;/� .•: •, �•i v 1t>t •t \/�. ;• !lam `I . :;.,}F,A •�hi''4 1N1i ac r A a AAkfit' i,: •! '111 TF16R6 IS' A CHAROC Olt YWW"TY DOLLARS (siQa 00)„rQR1L _%r4mr6C•T,1�QN CAL-p W11IC..H MUST S[ PAIO •TO frii6�y,, nx wrob1NTs WILL 09 1.I�4468 sn..' •j�OROf N{A�Nt1. M1�.•4•r •••_'F�•`L.� . •4.'i�i..1.�X� ........,•!•'-tti' :I. 1•x"1 :�• , ' •..•./.f�q.;. .. `•f4t>•' 1..lIlF'Ni•/YlLL�:..-u. •..+. _, v. :1••;tt-ate' IrOc/.1,, 1 , EXHIBIT "B" LAW FIRM OF JOR(3m L. DID LA 08A, P.A. 4960 S.W. 72 AVENUE SUITE 408 MIAMI. FLORIDA 83166 JORGE L. DE LA OSA TEL: 308)662-9343 RICHARD J.ADAMS, JR. FAX: 306) 662-4937 August 15, 1990 Mr. David Walker Code Enforcement Officer South Miami City Commission 6130 Sunset Drive South Miami, Florida 33143 Re: Appeal of City Commission's Denial of Request for Variance by Marie Valenti, Heard July 31, 1990. Subject Property: 6865 SW 64th Street Lot 9, Block 3, TRANQUILITY ESTATES, ',. according to the Plat thereof recorded"' in Plat Book 78 at Page 64 of the Public Records of Dade County, Florida. Dear Mr. Walker: Marie Valenti hereby appeals the City Commission's denial of her request for variance allowing a 21' rear setback within an RJ-3 zoning district. As grounds for the appeal, Ms Valenti cites the following: 1. Ms. Valenti received no type of formal notice of the July 31, 1990, hearing, as required. by Section 20-5 of the Land Development Code of the City :.of South Miami. 2. Ms. Valenti's remodeling of the subject property constitutes a nonconforming use, perm i8a � !efnunder the Land Development Code of the City of• 'Sou; ` • ~M ami. Section 4.8 (B) (1) of the Code in pertne ,;;part states.. A structure . . . . . . erected in conformance. with dimensional requirements in effect"at the time of erection but which at a subsequent'.'date .fails to conform . . . . . . may continue to be used . . . . . . 1, f . Mr. David Walker Code Enforement Officer South Miami City Commission August 15, 1990 Page 2 Section 4 .8 (B) (2) (b) , referring to nonconforming uses as set forth in 4.8 (B) (1) above, further states: In the event of any remodeling or rebuilding, the remodeling or rebuilding shall not increase the extent of nonconformity . . . . The subject property was in existence prior to imposition of the current 25' setback requirement applicable to RS-3 zoned single family property, at a time when 211, was the effective setback limitation. At a minimum, the terrazzo floor of the subject property (mounted on a concrete base, and possibly a screened-patio with corresponding, columns and roof) existed prior to the City's raising `the setback to 251 . As such, the subject property (as it currently stands and did so before the 25' setback limitation went into effect, at the 22.3' setback line) grandfathers the 25' setback limitation, and constitutes• a permissible nonconformity under the Code. Closing . off the existing patio in no way "increases the extent of nonconformity, " since the 22.3' setback remains unchanged. Ms. Valenti will submit record of the July 31, 1990, hearing as soon as the minutes of that hearing receive approval by Commission, and are accessible. Very truly yours, Richard J. Adams, Jr. Law Firm oft Jorge L. de la Osa, P.A. Attorneys for Marie Valenti RJA:pe cc: Marie Valenti ' ' DOUGLAS H. MacARTHUR Attorney at Law LeJeune Centre 782 NW LeJeune Rd, Suite 540 Miami , Florida 33126 Phone: ( 305) 445-2655 FAX: ( 30.5) 44A-3354 December 17 , 1991 Martin D. Berg City Attorney City of South Miami-. 6130 Sunset Drive --- South Miami , Florida 33143 RE : Subject Property: 6865 SW 64th Street Lot 9, Block 3 , TRANQUILITY ESTATES, according to the Plat thereof recorded in PLat Book 78 at Page 64 of the Public Records of Dade County, Florida Dear Mr. Berg: Please be advised that I now represent MS Marie Valent-i in the controversy concerning the above-referenced property, which is still unresolved. My office will be contacting you in the near future in an attempt to resolve this matter . I am now familiarizing myself with the { file and completing some necessary legal research into the matter. S ' ce ely You Dougl s H. MacA thur, Esq ire cc: MS Sonia Lamas MS Marie Valenti LAW FIRM OF JORGE L. DE LA OsA, P.A. 4960 S.W. 72 AVENUE SUITE 403 MIAMI, FLORIDA 33155 JORGE L. DE LA OSA TEL: (305) 662-9343 RICHARD J. ADAMS, JR. FAX: (305) 662-4937 October 24 , 1991 Martin D. Berg, Esq. 19 West Flagler Street Suite 802 Miami , Florida 33130 Re: Valenti vs. City of South Miami Code Enforcement Board Case No. 91-11783 CA 09 Dear Mr. Berg: As you already know this office represents Ms. Marie Valenti . Since you are well aware of all the trials and tribulations that our clients have both been through in relation to the above referenced matter, at this time my client together with myself would like to meet with you and any City Official (s) necessary to attempt to amicably resolve this situation. Believe me when I tell you that my client is in the best disposition to resolve this matter in a satisfactory manner to all ; but please realize that the fines levied on her and the monies already expended and owed are becoming overwhelming. In fact, she is at risk of losing her home. I am sure that this is not what the City of South Miami desires. Please contact our office at your earliest convenience to schedule a conference at a mutually convenient time and place. Sincerely, Jorge L. de la Osa, P.A. qg(9, e L. de la sa, sq. p CAIN epa� 6 t�c91�it�/���?S'�g r w MARTIN DAVID BERG, P.A. Attorney At Law 19 West Flagler Street Suite 802, Biscayne Bldg. Miami, Florida 33130 (305) 371-1631 FACSIMILE TRANSMISSION PLEASE CALL (305) 371 - 1631 IF YOU DO NOT RECEIVE THE FOLLOWING TRANSMISSION IN ITS ENTIRETY OR IF YOU WISH TO SEND A TRANSMISSION. Date June 7, 1991 To William Hampton, City Manager, South Miami Fax number called ( 305) 663 - 6353 Pages ( including this cover sheet) two Reference City of South Miami adv. Marie D. Valenti Instructions/Comments There follows a one page Order Granting Defendant 's Motion to Dismiss; kindly include it in today's packets . DO NOT INCLUDE THIS SHEET. 4, 9 '12 1 i +*A, fII —06- 7 1 9 1 0 'i::,. I'* TRANSMISSION cT,,, .i P.-E-7-FiF I I I TEL. NO. . . . . . . . . . . C "305 663 6353 121 NAME . . . . . . . . . . . . . (31 PAGE . . . . . . . . . . . . . 02 141TIME . . . . . . . . . . . . . f'.10H02 01 „ [51 RESULT . . . . . . . . . . . G31JK TRANSMIT OK 4:4-4, -*A .4 "1,*4 4-: *,*-4 j 4, J}J,.. i,,4,; J LAW FIRM OF JORa-E L. DE T,A OBA. P.A. 4960 S.W. 72 AVENUE SUITE 403 MIAMI, FLORIDA.33156 JORGE L. DE LA OSA TEL: (30E5) 662-9343 RICIIARD J. ADAMS, JR. FAX: 306) 662-4937 May 31, 1991 Honorable Martin Greenbaum Circuit Court Judge Dade County Courthouse 73 West Flagler Street Miami, Florida 33155 Re: Valenti vs. City of South Miami Code Enforcement Board Case No. 91-11783 CA 09 Dear Judge Greenbaum: Enclosed is a proposed Order Granting Defendant's Motion To Dismiss which reflects the undersigned's understanding of Your Honor's ruling on May 29, 1991. Please be advised that the form of the foregoing has been agreed to by oppposing counsel as well. If the form of the Order meets with your approval, please have your deisgnee distribute conformed copies in the self-addressed, stamped envelopes provided. Respectfully submitted, Amado Alan Alvarez Encs. cc: Martin David Berg, Esquire IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA MARIE D. VALENTI, GENERAL JURISDICTION DIVISION Plaintiff, CASE NO. 91-11783 CA 09 VS. CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, ORDER GRANTING DEFENDANT'S Defendant. MOTION TO DISMISS THIS CAUSE having come on to be heard before the Court on May 29, 1991, upon Defendant's Motion To Dismiss, and the Court having heard argument of counsel, and being otherwise duly advised in the premises, the Court finds that, although the instant action is properly transferable to the Appellate Division of the Circuit Court, Plaintiff has failed to file the instant action within thirty (30) days from the entry of the order being appealed, it is therefore, ORDERED AND ADJUDGED: 1. That the Defendant's Motion To Dismiss be, and the same is, hereby GRANTED. DONE AND ORDERED .in Chambers, at Miami, Dade County, Florida, this day of , 1991. Honorable Martin Greenbaum Circuit Court Judge Copies Furnished To: Martin David Berg, Esquire Amado Alan Alvarez, Esquire MARTIN DAVID BERG, P .A. Attorney At Law 19 West Flagler Street Suite 802, Biscayne Bldg. Miami, Florida 33130 ( 305) 371-1631 FACSIMILE TRANSMISSION PLEASE CALL ( 305) . 371 - 1631 IF YOU DO NOT RECEIVE THE FOLLOWING TRANSMISSION IN ITS ENTIRETY OR IF YOU WISH TO SEND A TRANSMISSION. Date May 31, 1991 To Amado Alan . Alavarez, Esquire Fax number called ( 305) 662-4937 Reference City of South Miami adv. Valenti Page (s ) ( including cover sheet) two Instructions/Comments Thanks for forwarding me your proposed Order . I changed the order of the words (but none of the actual words ) in the attached proposed Order . I trust you will find it acceptable . � *�*** 19 S2-05-31 *** T��N�� ]S� lO� (T�) �EPO�T *** � � L'I] TEL. NO. . . ' . ' ' ' ' ' ' l 30 5 344 96l3 0187 121 NAME ' ' ' ' ' ' . ' ' ' ' ' ' [3] PASE . . . . . . . . . . . . . 2 [4] TIME . ' ' ' ' ' ' ' ' ' ' ' ' 00H0I ' 47 ~ 151 PE3ULT ' ' ' ' ' ' ' ' ' ' ' S3OK TRANSMIT OK � ^ -rev _ JZJvd b5 : yL. Vb-5u-6bbL 6 d 7 1 IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DARE COUNTY, FLORIDA MARIE D. VALENTI, GENERAL JURISDICTION Plaintiff, DIVISION Vol CASE NO. 91-11783 CA 09 CITY OF SOUTH MIAMI CODE ENFORCEMENT HOARD, ORDER GRANTING DEFENDANTIS Defendant. MOTION TO DISMISs THIS CAUSE having come on to be heard before the Court on May 29, 1991, upon Defendants Motion To Dismiss, and the Court having heard argument of counsel, and being otherwise duly advised in the Premises, the Court finds that, although *— the instant action is properly tranAferable to the Appellate Division of the Circuit Court, Plaintiff has failed to file the instant action within thirty (301 days from the entry of the order being appealed, it is therefore, ORDERED AND ADJUDGED: 1• That th'e' Defendant's Motion to _n_ism ss-.fie, and the same is, hereby GRANTED. DONE AND ORDERED in Chambers, at Miami, Dade County, Florida this _ day of 1991. No V�l bl Martin Greenbaum C1 Court Judge Copies Furnished To: Martin David Berg, Esquire = Amado Alan Alvarez, Esquire LAW FIRM OF JORGE .L. DE LA OBA, P.A. 4960 S.W. 72 AVENUE SUITE 403 MIAMI, FLORIDA 33166 JORGE L. DE LA OSA TEL: 306) 662-9343 RICHARD J. ADAMS, JR. FAX: 306) 662-4937 VIA TELECOPY May 30, 1991 Martin David Berg, Esquire 19 West Flagler Street Suite 802 Miami, Florida 33130 Re: Valenti vs. City of South Miami Code Enforcement Board Case No. 91-11783 CA 09 Dear Mr. Berg: Enclosed is our proposed Order Granting Defendant's Motion To Dismiss. Please review same and advise as to your approval at your earliest convenience. Thank you for your attention and cooperation in this regard. Very truly yours, Amado Alan Alvarez Enc. IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA MARIE D. VALENTI, GENERAL JURISDICTION DIVISION Plaintiff, CASE NO. 91-11783 CA 09 VS. CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, ORDER GRANTING DEFENDANT'S Defendant. MOTION TO DISMISS THIS CAUSE having come on to be heard before the Court on May 29, 1991, upon Defendant's Motion To Dismiss, and the Court having heard argument of counsel, and being otherwise duly advised in the premises, it is ORDERED AND ADJUDGED: 1. That, although the Court finds that the instant action is properly transferable to the Appellate Division of the Circuit Court, Plaintiff has failed to file the instant action within thirty (30) days from the entry of the order being appealed. 2 . It is, therefore, that Defendant's Motion be, and the same is, hereby ,GRANTED. DONE AND ORDERED in Chambers, at Miami, Dade County, Florida, this day of 1991. TW� bl Martin Greenbaum C4cuit Court Judge Copies Furnished To: Martin David Berg, Esquire Amado Alan Alvarez, Esquire / Law Offices Of JORGE L. DE LA OSA, P.A. Marina Lakes Business Park 4960 S.W. 72nd Avenue, Suite 403 Miami, Florida 33155 Telephone. (305) 662-9343 Telecopy: (305) 662-4937 FACSIMILE 'TRANSMISSION TO: Martin David Berg, Esquire FAX NO.: (305) 371-6802 FROM: Amado Alan Alvarez, Esquire DATE: May 30, 1991 Rb; Valenti Vs. South Miami Code Enforcement Board Case No. 91-11783 CA 09 NO. PAGES: 3 (inc.l. cover page) PLEASE CONTACT THIS OFFICE AT THE NUMBER ABOVE IN THE EVENT ANY PART OF THE FOLLOWING TRANSMISSION IS NOT RECEIVED OR IS ILLEGIBLE. THANK YOU. :q =IS tbJ b.'0E 9 CD S9NH�Jd'=._ 1HJ0D [.10 1 i LAW F'iRM or JORGn L. DE ]CAA 05A. F.A. 4 080 S.W. 72 AVIDNUlM SUITE a09 ML1MI. FLOPIDA 331515 JORGE L. DID [.A osA t ICKAND J, ADAMS. JR. TEL: (30e) 4302`0343 MIA TE1-9-Q= FAX: 305) 602-4037 MAY 30, 1991 Martin David Berg, Esquire 19 west Flagler Street Suite 802 Miami, Florida 33130 Re: Valenti vs. City of South Miami Code Enforcement Board Case No. 91-11783 CA Og Dear Mr. Berg: Enclosed is our proposed Order Granting Defendant 's Motion To Dismiss. Please review same and advise as to your approval at your earliest convenience. Thank you for your attention and cooperation in this. regard. very truly yours, Amado Alan Alvarez Enc. 4 f� I I ' i A li i I 8 ss : r.o 16,10-6/So SgtAHNdsS -1dd0:) WOC\A A ray: zr,nr:. �• �; d 1�. _ 1 IN THE CIRCUIT COURT Or, THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA MARIE D. VALENTI, GENERAL JURISDICTION Plaintiff, DIVISION vs. CASE NO. 91-•11783 CA 09 CITY OF SOUTH MIAMI CODE ENFORCEMENT BOARD, ORDER Defendant. GRANTING DEFENDANT'S rLQTION Tom, DISMISS THIS CAUSE having come on to be heard before the Court an May 29, 1991, upon Defendant's Motion To Dismiss, and the Court having heard argument of counsel, and being o't'herwise duly advised in the premises, it is ORDERED AND ADJUDGED: 1• That although the Court f indn that , the Inscanc action is properly tx•anaEerablr� t to the Appellate Division of the Circuit Court, Plaintiff has railed to file tale instant action within thirty (30a days iruiit the entry of the order being appealed, ls, therefore e Defendant's Motion be, and the same is, hereby GRANTED. DONE AND ORDERED in Chambers, at Miami, Dade County, Florida, this T day of 1991. Ho orabl Martin Greenbaum Ci cuit Court Judge Copies Furnished To: Martin David Berg, Esquire Amado Alan Alvarez, Esquire i i `I , i r; � y r i- V E - - . I Ir / M4 itI. li , I j { I �i Rule 1.020 RULES OF CIVIL PkuCEDURE RULES 1.020 AND 1.025 [REPEALED] (c) Method. The service charge of the clerk of Repealed June 14, 1979, effective July 1, 1979 (372 So.2d the court to which an action is transferred under 449). this rule shall be paid by the party who commenced the action within 30 days from the date the order of RULE 1.030 NONVERIFICATION transfer is entered, subject to taxation as provided by law when the action is determined. If the ser- OF PLEADINGS , vice charge is not paid within the 30 days, the action (a) Except when otherwise specifically provided shall be dismissed without prejudice by the court by these rules or an applicable statute, every writ- that entered the order of transfer. ' ten pleading or other paper of a party represented Amended Oct. 9, 1980, effective Jan. 1, 1981 (391 So.2d by an attorney need not be verified or accompanied 165); Sept. 13, 1984, effective Jan. 1, 1985(458 So.2d 245). by an affidavit. Court Commentary (b) to (e) Repealed June 14, 1979, effective July 1984 Amendment. Because of confusion in some cir- 1, 1979 (372 So.2d 449). cuits, subdivision ('c) is added: Amended Aug. 25, 1976, effective Jan. 1, 1977 (339 So.2d (a) to specify who is to pay the clerk's service charge on 626); June 14, 1979, effective July 1, 1979(372 So.2d 449). transfer; Committee Notes (b) to provide for the circumstance in which the service 1976 Amendment. Subdivisions (a)–(b) have been charge is not paid; and amended to require the addition of the filing party's tele- (c) to require the dismissal to be by the court which phone number on all pleadings and papers filed. entered the order of transfer. RULE 1.035 [REPEALED] RULE 1.070 PROCESS Repealed June 14, 1979, effective July 1, 1979 (372 So.2d (a) Summons—Issuance. Upon the commence- 449). ment of the action summons or other process autho- rized by law shall be issued forthwith by the clerk RULE 1.040 ONE FORM OF ACTION or judge under his signature and the seal of the There shall be one form of action to be known as court and delivered for service without praecipe. "civil action". (b) Service—By Whom Made. Service of pro- cess may be made by an officer authorized by law to serve process but the court may appoint any RULE 1.050 WHEN ACTION competent person not interested in the action to COMMENCED serve the process. When so appointed, the person Every action of a civil nature shall be deemed serving process shall make proof of service by commenced when the complaint or petition is filed affidavit promptly and in any event within the time except that ancillary proceedings shall be deemed during which the person served must respond to the commenced when the writ is issued or the pleading process. Failure to make proof of service shall not ' setting forth the claim of the party initiating the affect the validity of the service. When any process action is filed. is returned not executed or returned improperly executed for any defendant, the party causing its issuance shall be entitled to such additional process RULE 1.060 TRANSFERS OF ACTIONS against the unserved party as is required to effect (a) Transfers of Courts. If it should appear at service. any time that an action is pending in the wrong (c) Same—Numerous Defendants. If there is court of any county, it may be transferred to the more than one defendant, the clerk or judge shall proper court within said county by the same method issue as many writs of process against. the several as provided in Rule 1.1700). defendants as may be directed by the plaintiff or his (b) Wrong Venue. When any action is filed lay- attorney. ing venue in the wrong county, the court may (d) Same—Proceed Against Those Served. transfer the action in the manner provided in Rule When action is brought against two or more defen- 1.1700) to the proper court in any county where it dants and process is served on one or more, but not might have been brought in accordance with the on all, and the person making service returns that venue statutes. When the venue might have been any defendant not served does not reside in the laid in two or more counties, the person bringing county, the plaintiff may proceed against the defen- the action may select the county to which the action dants served, noting the fact of non-service as to is transferred, but if no such selection is made, the the defendants not served or the plaintiff at his matter shall be determined by the court. option may order additional process to be delivered 82 n Now 468 Fla. 248 SOUTHERN REPORTER, 2d SERIES crediting the voluntary original payments as among other things, the 25 per cent rating directed by the Judge of Industrial Claims, without deduction. [2] There is no legal basis for in effect The Judge of Inchistrial Claims found apportioning out of claimant's second injury claimant's physical impairment is greater compensation award, payments already than his diminution of wage earning made on the first injury award due to capacity. Note P.S. Section 440.15(3) (u), merger. Compare Gencreux v. Caribhcan I-.S.A. Concessions, Fla., 211 So.2d 1. Nor is any different legal principle-applicable because [5] The amendment at the. 1970 legis- claimant was employed during the time of lative session of F.S. Section 440.1.5(5) (c), his injuries by the same employer rather F.S.A., is inapplicable to this case since than by different employers. The claim- the successive injuries of claimant occurred ant's last employer, whether only one or prior to the time of the anlcnclnlent. c a second, during claimant's successive in- juries who has prior knowledge of claim- he decision of the .Industrial Relations ant's original disability may look to the Comnlissron is quashed with direction that Special Disability fund for reimbursement on remand further proceedings be in accord as provided by F.S. Section 440.49, F.S.A. herewith. [3] The claimant in this case is entitled It is so ordered. to 25 per cent permanent partial disability payments from the time awarded, June 2, CARL:1'ON, )\1cCAIN and llI ICl_I3, )(., 1969, but no more because the 25 per cent concur. was awarded on the basis of the increased RORI?RTS, C. ►., dissents. disability cause([ by both injuries, i. c., the aggravation of the• first injury by the second injury and the merger with it. Once pay- w• _ -^ tnetlts are commenced 011 the second or o S CreuneEasrsrtN 1 �, r T r merged injury, no further payments are required to be nladc on the first injury; but no credits are to Ile given on second injury payments because of payments al- ready made on the first injury before The STATE of Florida, ex Relator, Deborah A. second injury payments commenced. SOODHALTER, Relator, V. The contention of Respondents that The Honorable Paul BAKER, as Judge of claimant without deduction of credit for the Criminal Court of Record, In and for first injury payments will receive a 45 Dade County, Florida, Respondent. per cent rating is without merit. Ile re- ccived only 5 per cent more compensation No. 40950. on the merged disability from June 2, Supreme Court. of Florida. 1969. May 19, 1971. For the reasons stated, the cmploycr- carrier is not entitled to any credits for amounts already voluntarily paid on the 11Y suggestion for a writ of prohibi- r basis of 20 per cent permanent partial dis- tion to judge of criminal court of record. I relator sought to prohibit further criminal 1 ability for the first injury up to Jutic 2, 1969, on which payments were commenced prosecution against her. The Supreme April 2, 1969. Court, McCain, J., held that where relator asserted only a statutory right to a speedy [• [4] Attorney fees for claimant should trial, Supreme Court was without jurisdic- be determined by taking into consideration, tion to entertain her suggestion but that r. I STATE EX REL. SOODHALTER v. BAKER Fla. 469 Cite ns,Fla.,248 So.2d 468 e" + tq^#rrnte Court could and would transfer been improvidently invoked, transfer from yaxceding to appropriate District Court of one appellate court whose jurisdiction has t t�y,cal. been improvidently invoked must be to an- other appellate court having jurisdiction. I Order accordingly. 30 F.S.A. Roles of Civil Procedure, rules ,. a Ervin, J., concurred and filed opinion. 1.010, 1.060(a), 1.170(j); 32 F.S.A. Flori- da Appellate Rules, rule 2.1, subd. a(5) t,Prohibition 0-9 (d); F.S.A.Const. art. 5, §4(2). 11'hcre relator asserted only a statnto- 6. Courts 0-484 j rp ri,ht to a speedy trial, Supreme Court Where an appeal which should be filed t alas %ithout jurisdiction to entertain sug- 1 in circuit court is filed in a higher court, n1uon for a writ of prohibition to judge ; transfer to proper circuit court is appropri- 1. .1 cnnnnal court of record prohibiting fur- t t ate; conversely, an appeal improvidently ! . &r criminal prosecution against her. F. + lodged with circuit court may be i `,•�t < \ i 91 .111; h.S.A.Const. art. 5, §4. r 1 trans- ferred to appropriate higher court. 30 F. ; I Statutes (-194 S.A. Rules of Civil Procedure, rules 1.010, i 1.060(a), 1.170(j); 32 F.S.A. Florida Ap- Y 1Chcre general words in a statute fol- pellate Rules, rule 2.1, subd. a(5) (d); F. w Lm a tit signation of particular subjects'or S.A.Const. art. 5, §§4(2),6(3). qV c4, meaning of general words will or- tf j6zmlt be presumed to be, and construed 7. Courts 0484 i tt r4 restricted by the particular designation. Where a litigant improvidently invokes original jurisdiction of circuit court, mech- '4. I Statutes 0194 , anism for transfer by Supreme Court to 1Chere enumeration of specific things court having jurisdiction when jurisdiction n a statttc is followed by more general of another appellate court has been im- r.:d or phrase, general phrase is con- phrase, P providently invoked is not available. 30 rrr,4d to refer to those things included F.S.A. Rules of Civil Procedure, rules 1.- r.ahm the preceding limited terms. O10, 1.060(a), 1.170(j); 32 F.S.A. Florida Appellate Rules, rules 2.1, subd. a(5) (d), ; A. 4 Wits 0485 sa: 4.7; F.S.A.Const. art. 5, §4(2). - %Vords "subject to review" within con- 0:.,uonal pro6sion that Supreme Court 8. Courts X484 1 e of a. 4,411 ptuvide for transfer to court having { t; .Where, on record, a given case which or lsr.wl.,Lion of any matter subject to re- has been improvidently brought to Su- t ;; ax's ahen jurisdiction of another appellate preme Court does not clearly appear to be curt has Keen improvidently invoked mean without merit, it will he appropriate to cz!;t:t to consideration b Su Court Y Supreme P transfer cause to appropriate appellate n t!q exercise of its enumerated powers court rather than to dismiss it without t kt1trg its po%N,er to issue original writs. prejudice. 30 F.S.A. Rules of Civil Proce- F< �Const. art. 5, § 4(2). dare, rules 1.010, 1.060(a), 1.170(j); 32 F. s+e publication Words and Phrases S.A. Florida Appellate Rules, rules 2.1, al`s. tar odwr judicial constructions and subd. a(5) (d), 4.7; F.S.A.Const. art. 5, § "r'k Mfaritiona. 4(2) r cnx I foams 0484 9. Courts 0485 "'2QR 1'.der constitutional mandate to Sn- Where Supreme Court was without ju- x I ee.y fraWq l'ourt to provide for transfer to risdiction to entertain suggestion for writ -' "1" ml t..mng jurisdiction of case when ju- of prohibition seeking to prohibit further tt'at fm-O-on of another appellate court has criminal prosecution against relator be- t P ' 1 {1 x s t 470 Fla. 248 SOUTHERN REPORTER, 2d SERIES cause she asserted only a statutory right to to this revision, this Court has entertained ti a speedy trial, Supreme Court would trans- original wirts of prohibition in speedy trial j fer proceeding to appropriate district court cases only where it was asserted that a r of appeal rather than dismiss suggestion constitutional right to speedy trial, indc- without prejudice. 30 F.S.A. Rules of Civ- pendent of rights under F1a.Stat. § 91591 r it Procedure, rule 1.010, 1.060(a), 1.- (1970), F.S.A., was violated. See Pena V. 170(j); 32 F.S.A. Florida Appellate Rules, Schultz, 245 So.2d 49 (F 1a.1971); Loy r•. E' rules 2.1, subd. a(5) (d), 4.7; F.S.A. § Grayson, 99 So.2d 555 (F1a.1957). lint- ;r. 915.01; F.S.A.Const. art. 5, §§ 4, 4(2), much as relator in the instant case asserts n 5(3), 6(3). only a statutory right to speedy trial, this Court is without jurisdiction to entertain • her suggestion. Lawrence S. Katz, Miami Beach, for re- However, this is not to suggest that• lator. having made out a prima facie case for re- Robert L. Shevin, Atty. Gen., and Reeves lief under Fla.Stat. § 915.01 (1969), i..S.A., Bowen, Asst. Atty. Gen., for respondent. relator is now without a remedy. Fla. Const. Art. V, Sec. 5(3), F.S.A., providm in pertinent part: "* * * a district A4cCAIN, Justice. court of appeal * * * may issue writs By suggestion of the State of Flori- of * * * prohibition * * *" da, on the relation of Deborah A. Soodhal- Accordingly, the question arises whether l ter, for a writ of prohibition to the Ilonor- 1 able Paul Baker, as Judge of the Criminal this Court must dismiss the pending sq. Court of Record, Dade County, Florida, re- gestion without prejudice to the relator to lator seeks to prohibit further criminal apply for relief to the appropriate District Court of Appeal, or whether we may prosecution against her by invoking Fla• transfer the proceeding to the appropriate Stat. §915.01 (1969), F.S.A. ` District Court. ' Prior to the 1956 Florida constitutional 1 revision this Court could have entertained 1'la•Const. Art. V, Sec. 4(2), provider. . the grant of an original writ of prohibition "The Supreme Court shall provide for the r transfer to the court having jurisdiction of in this case, through language of Article V, Section 5, then reading: "The court any matter subject to review when the ju• risdiction of another appellate court has f shall have power to issue writs of manda- t, been improvidently invoked.' (Emphasis mus, certiorari, l+rohibitiort, quo warranto' added) habeas corpus, and also all writs necessary or proper to the complete exercise of its ra P P P In State ex red. Peterson v. «rcissing, appellate jurisdiction." (Emphasis added). 100 So.2d 373 (F1a.1958), this Court, via tu• See Feger v. Fish, 106 Fla. 564, 143 So. dictum, stated: rr 605 (1932). "It was suggested at oral argument that tr. [1] The 1956 Article V revision, how- we exercise the power to transfer the al" ever, created a fundamental change in this record which has been filed here to the Court's constitutional power to accept an proper appellate court under the prod- ,it' original writ of prohibition through Sec- sion of Section 4, Article V, Florida a` tion 4(2), thereof, now stating: "The sit- Constitution, as amended, which directs ' preme court may issue * * * writs of that 'The supreme court shall provide prohibition to * * * the trial courts for the transfer to the court having ill- when questions are involved upon which a risdiction of any matter subject to re- direct appeal to the supreme court is al- view when the jurisdiction of another t lowed as a matter of right." Subsequent appellate court has been improvidenth cu. Vd- ' 1 f STATE EX REL. SOODHALTER v. BAKER Fla. 471 '' V Cite a5,Fiji.,248 So.2d 4U,4 invoked.' Despite it desire to be cooper- certiorari in chancery matters; it sets out ative with the parties-litigant, we are of our jurisdiction over appeals from District the view that the quoted provision for Courts; it defines our jurisdiction to issuei'`F, the transfer of cases applies to those sit- writs of certiorari to District Courts; it w't=;:j• uations in which the appellate jurisdic- sets out our jurisdiction to issue writs of lion, as distinguished from the original mandamus; quo warrantor prohibition; ` jurisdiction, of an appellate court has and habeas corpus; and it concludes bylt? been improvidently invoked. In the in- providing its with power to transfer mat- stant matter the relator has improvident- ters subject to review. It is a well-estab- s• ly invoked the alleged original jurisdic- lished rule of statutory and constitutional tion of this Court as distinguished from construction that where general words fol- . ;# our appellate jurisdiction. We are, low a designation of particular subjects or I therefore, not in a position to direct that classes, the meaning of the general words the record which he has submitted be will ordinarily be presumed to be, and con- transferred bodily to the proper tribunal strued as, restricted by the particular des- '• R: for consideration. We see no reason, ignation. See Re Amos, 93 Fla. 5, 112 So. «:k j y however, why the relator should not pro- 289 (1927) ; Van Pelt v. Hilliard, 75 Fla. d:,r teed at) initio in the proper district court 792, 78 So. 693 (1918); Children's Bootery of appeal." (Emphasis added) V. Strtker, 91 Fla. 60, 107 So. 345 (1926) ' Goldsmith v. Orange Belt Securities Co., e a j Sec also jaworski v. City of Opa-Locka, b 119 So.2d 33 (Fia.1963) and State ex rel. 115 Fla. 683, 156 So. 3 (1934); Arnold v. sE' Shumpert, 217 So.2d 116 (Fla.1968). Un- #; ;# florden Co. v. Langley, 184 So.2d 161 der this rule, where the enumeration of (FIa.1966). specific things is followed by a more gen- However, in light of our policy state- eral word or phrase, the general phrase is ment in Baggett v. Wainwright, 229 So.2d construed to refer to those things included ? 239 (F1a.1970), wherein we indicated that within the preceding limiting terms. Han- we would in the future transfer writs of na v. Sunrise Recreation, Inc., 94 So.2d hatxas corpus initially filed with us as an 597 (Fla.]957) de Mari gn v, de Ma- ;: appellate court having original jurisdiction, rigny, 43 So.2d 442 (Fla.1949) ; Pompano " y to the appropriate District Court of Appeal IIorse Club, Inc. v. State ex rel. Bryan, 93 ' in certain situations, it is apparent that the Fla. 415, 111 So. 801 (1927); Smith v. foregoing language in Weissing needs Nussman, 156 So.2d 680 (Fla.App.3rd '':` reexamination. 1963), reh. den.; State ex rel. Winton v. ?.. j Town of Davie, 127 So.2d 671 (F1a.1961). Th r e lVeissing decision does not state a rrationale for the conclusion reached there- == ` in. However, the only words in the consti- [4] We are confronted with precise- tutional provision in question which could ly such a situation here. The Constitu- reasonably be construed as limiting our tion first sets out specifically the limits of 7 our jurisdiction and then gives its a ever- `> ! transfer jurisdiction to cases in which our J k g appellate jurisdiction was involved are the al power to transfer cases subject to our t' words "subject to review". We therefore Jttrisdiction. Had it been the intendment ` undertake to consider whether those words of the Constitution to limit our transfer ywere indeed intended as it limitation on our power to cases wherein our appellate juris- ;_+:• r pother to transfer cases. diction was improvidently invoked it would j� have been it simple matter to have placed !' 2,3 FIa.Const. Art. V, Scc. 4 2 sets the language � ] ( ) general transfer language after that k, . forth in detail the jurisdiction of this portion of Art. V, Sec. TV(2) dealing with j Court. It begins b defining our jurisdic- our a r b Y 6 ) appellate power. But in fact, the gen- tion over appeals from trial courts; it dis- eral language follows both the discussion cusses our jurisdiction to issue writs of of our appellate jurisdiction and the dis- s v1� 472 Fla. 248 SOUTHERN REPORTER, 2d SERIES cussion of our original jurisdiction. We at the appellate level exists, we must now therefore construe the words "subject to consider the possibility that we have limill- review" to mean "subject to consideration ed our power through the medium of our by the Court in the exercise of its enumer- appellate rules. Happily, no such limita- ated powers, including its power to issue Lion is to be found. In response to our original writs" and reject the interpreta- constitutional mandate in Fla.Const. Art. tion placed on those words by us in Wciss- V, Sec. 4(2) to "provide for the transfer rng. to the court having jurisdiction", 1,'A.R. Such a construction is consistent with 2.1, subd. a(5) (d), 32 F.S.A. was promul• the solution of one of the numerous prob- gated. That rule provides: lems facing our judiciary, that is, the expe- "When the jurisdiction of an appellate ditious but just disposition of cases with court has been improvidently invoked, merit. It eliminates the need for litigants that court may of its own motion or and counsel to pay double filing fees; to on motion of either party to the cause prepare duplicate pleadings; to acquire ad- enter an order transferring it to the ditional trial records; and it reduces the court having jurisdiction." already lengthy delay frequently inherent in our appellate procedure. The rule does not talk in terms of "appel- late" or "original" jurisdiction, but merely ; Our Rules of Civil Procedure, 30 F.S.A., allows an appellate court whose "jurisdic- *' providing the mechanism for disposition of tion" has been improvidently invoked to cases at the trial level, have also recog- transfer the cause to the "court having ju- nized this problem and attempted to mini- risdiction". Clearly, this rule permits the mize or eliminate it. R.C.P. 1.010 states: transfer of causes to the appropriate appel- "These rules shall be construed to secure late court having original jurisdiction as G \ the just, speedy and inexpensive determina- well as to the appropriate appellate court tion of every action." R.C.P. 1.060(x), having appellate jurisdiction. provides: "If it should appear at any time In fact, under the Rule considered alone .` that an action is pending in the wrong t17e1 without reference to 1 la.Const. Art.F, court of any county, it may be transferred to the proper court within said county by Sec. 4(2), it would be possible to conclude t the same method as provided in RUiC 1.- that our power to transfer is without limit. 170(j)." R.C.P. 1.170(j) provides: "If the Under the Rule, an appellate court could even go so far as to transfer an on inal i demand of any counterclaim or cross-claim g exceeds the jurisdiction of the court where negligence action improperly filed with it the action is pending, the action shall be to the appropriate Circuit Court. The Rule ` transferred forthwith to the court of the states only that an appellate court may same county having jurisdiction of the de- transfer to the "court having jurisdiction:' • I mand * * *." [5] However, such a result is not con- lFor this Court to recognize the necessity sistent with the Constitution. The Consti- of relaxing technical niceties at the trial tution mandates us to provide for the level but to ensnare litigants with a transfer to the "court having jurisdiction" straight jacket at the appellate level, would When the "jurisdiction of another appellate constitute a distinction without reason or court has been improvidently invoked." meaning. Accordingly, for the reasons (Emphasis added) The use of the word above stated, the quoted language from another" in the constitutional provision State ex rel. Peterson v. Weissing, supra, defining our power over transfers clearly is expressly receded from. indicates that the transfer from one appel- late court whose jurisdiction has been im- Having concluded that no constitutional providently invoked must be to another at- limitation on our power to transfer cases pellate court having jurisdiction. Other- - :ES gg STATE EX REL.'SOODHALTER v. BAKER Fla. 473 t f Cite:u,Fla.,248 So.2d 468 eve] exists, we must now r wise, the word "another" would be without Circuit Court); Arvida Corporation v. ibility that we have limit- 1 meaning. City of Sarasota,supra. •ough the medium of our Happily, no such limita- [6] This is not to say that the transfer [7] It will be noted from the citation tnd. in response to our t, mechanism is closed entirely to Circuit of authority accompanying our enunciation itdatc in 1Ia.Const. Art. 1. Courts. F1a.Const. Art. V, Sec. 6(3) de- of these general rules, that nothing new "provide for the transfer fines the appellate jurisdiction of the Cir- has been added to the transfer mechanism 'ing jurisdiction", F.A.R. cult Courts, as follows: to and from Circuit Courts by our opinion ), 32 F.S.A. was promul- a here. All the have said that is new is that provides: "They shall have final appellate jurisdic- all appellate court whose original jurisdic- tion in all civil and criminal cases aril- isdiction of an appellate tion is improvidently invoked may transfer n ing in the county court, or before county the cause to another appropriate appellate t improvidently invoked, judges' courts, or all misdemeanors tried � of its own motion or court. Where a litigant improvidently ut- in criminal courts of record, and of all vokes the original, jurisdiction of a Circuit !ither party to the cause cases arising in municipal courts, small • transferring it to the Court, the transfer mechanism is not avail- transferring courts, and courts of justices of risdiction." able because that court is not acting as a i the peace." n appellate court. Conversely, where the talk in terms of "appel- original jurisdiction of either this Court or ' jurisdiction, but merely The Florida Appellate Rules, including 1'. a District Court of Appeal is invoked when A.R. 2.1, subd. a(5) (d), govern procedure :e court whose "jurisdic- the original jurisdiction belongs in a Cir- rnprovidently invoked to in the Circuit Court acting in the exercise cuit Court, no transfer is available because to the "court having ju- .f of their appellate jurisdiction. See F.A.R. the transfer would not be to another appel- 4.7. Accordingly, where appeal which •ly, this rule permits the t� an a PP late court. We speak here only of trans- to the appropriate appel- should be filed in the Circuit Court is filed fers of causes between appellate courts. original jurisdiction as a in a higher court, a transfer to the proper propriate appellate court Circuit Court would be appropriate. See [8] The practical effect of the princi- trisdiction. Christian v. State, 176 So.2d 561 (Fla. ple enunciated herein remains to be consid- App.3rd 1965) (misdemeanor conviction creel. We note that under F.A.R. 2.1, he Rule considered alone appealed to first District Court of Ap- subd. a(5) (d) transfer is permissive rath- mce to F1a.Const. Art. V, peal); Dresner v. City of Tallahassee, 134 er than mandatory. We expect that cer- 3 be possible to conclude So.2d 228 (F1a.1961) (conviction of viola- tain general propositions regarding the transfer is without limit. tion of municipal ordinance appealed to propriety of the transfer mechanism in any an appellate court could j Supreme Court); Arvida Corporation v. given situation will evolve from a consid- to transfer an original City of Sarasota, 213 So.2d 756 (F1a.App• eration of individual cases, and we are improperly filed with it 2nd 1968 certiorari petition seeking re- ) (certiorari g therefore hesitant to set out definite stand- Circuit Court. The Rule view of administrative order improperly ards at this time. In general, however, we an appellate court may transferred to Second District Court of conceive that where, on the record before ntrt having jurisdiction." Appeal by Circuit Court; retransferred to us, a given case does not clearly appear to such a result is not con- Circuit Court); Fice v. State, 232 So.2d be without merit, it will be appropriate to 191 (F1a.App.3rd 1971)) (misdemeanor con- onstitution. The Consti- transfer the cause to the appropriate appel- us appealed to Third District Court of late court, rather than dismiss it without nu ) to provide for the Appeal); Merrill V. State, 225 So.2d 436 rt having jurisdiction" prejudice as we have done in the past. tion of another appellate (t'la.App. 3rd, 1969) (misdemeanor convic- improvidently invoked." tion appealed to Third District Court of [9] Accordingly, pursuant to the views The use of the word Appeal). expressed herein, this suggestion for a writ constitutional provision of prohibition be and is hereby transferred Conversely, where an i appeal is mprovi- to the Third District Court of Appeal for r over transfers clearly dently lodged with a Circuit Court, it may transfer from one appel- Y inquiry into this matter and for the grant- be transferred to the appropriate higher ing of such relief as that Court shall deem urisdiction has been im- court. In Re Grant's Estate, 117 So.2d 865 appropriate. 3 must be to another ap- a (Fla.App.2nd 1960) (appeal from an order rzg jurisdiction. Other- of probate court improvidently lodged with It is so ordered. 246 So.2d-301/2 474 Fla. 248 SOUTHERN REPORTER, 2d SERIES ROBERTS, C. J., arid CARLTON, AD- cr, supra, that the trial judge passed upoll ERVIN, justice (coiictirritig with opiu- thority, Fla., I I I So.2d 439), or we could ioll) have ascertairied 1)), some appropriate mearis if the trial judge had ill fact lid(I tile tile statute tuicotistittiticiiial iii this case (C. Court, believirig it to be a moderiiiziug pol- g., State v. Brimo, Fla., 104 So.2d 588). icy proriomicerticut which as a precedetit Or perhaps we could have treated tile sug- will expedite dispositioii of cases of this gestioii for writ of prohibiticiii as it petition corpus (e.g. Harper v. by chautiefirig such cases without delay State, Fla., 172 So.2d 45-1) arid ascertainc(I l3aggett v. Waiiiwright, Fla., 229 So.2d deilial of discharge was based upoii his view that sectioil 915.01 is micotistitutional. Ilicideiitally, 1. make iiote that the fact tile While I readily agree to the policy pro tiouriccri-ici-it ill the Court's opimoti as -it Relator happeiis iiot to be "iii custody" iin- der the charge from which site sccks re- lar case except for the fact it is riot clear to preclude ]let- relief where it fmidariiental right to discharge is made to appear. from the papers filed with its tha our Ju- - risdictiou is iilvoked. All that we have bc- Compare Lawsoo v. State, I'la., 231 ';o.2d tioti, allegiiig that the trial judge (Icilied it pag -it large through the office of the Attorriey Geller- w rit of habeas corpus." I lowever, it al, has opposed issuaiice of the writ. does appear more appropriate aiid expe(li- tious to traiisfer this case to it court beloiv The suggesticiti makes a pritria facie clearly havijig jurisdictioll at this poilit for showiiig that four full terms of the trial the rcasotis expressed iii the Court's opin- for speedy trial were made ill strict ac- Siricc the suggcstiori for writ of prohibi- However, the rcasotl for the trial judge's ticiii makes a prima facie showitig, the Re- deuial of the motiort for discharge is riot lator should be discharged tirider authoritv of State ex rel. Leori v. Baker, Ma., 2Y his order of deiiial made a part of the So.2d 281, arid State ex rel. Buotio v. record before its. I strorigly suspect he de- Goodmazi, Ila.App., 233 So.2d 185, Mt. dctiied Goodmaii v. State ex rel. 13tiono. rtied it because lie believed F.S. chapter 'Ia., 243 So.2d 594, titiless the State is, able State ex rel. Williams v. Baker, Fla., 247 So.2d 316, opitlioil filed March 24, 1971. Iticidcritally, the deiiial of prohibition in There is uothing before us irldicatirig that State ex rel. Soodlialter v. Baker, Ha.App., the trial judge passed upon the validity of 242 So.2d 814, by tile District Court Nvotild tiot appear to be colltrollirig iii this trins- ferred case. ariything else which clearly hidicates our jurisdiction is itivoked. Of course, we might possibly have as- jurisdictioti ill this matter does riot clearl*V sumed front State ex rcl. Williams v. Bak- appear, I thirik it appropriate for the gen- '1 IN RE THE FLORIDA BAR Fla. 475 g Cite as,bola.,243 So.2d 475 oral policy reasons indicated in the Court's increase in dues, integration rule would he r opinion to transfer this case (and similar amended to provide for increase in dues up cases) to a forum below having; jurisdic- to $50 per annum, upon final authority ` tion from members in convention assembly, with t $5 thereof earmarked for client security , fund. 32 F.S.A.Integration Rules of The I W, Florida Bar, art. 8, subd. 1. Y _ i r Burton Young,North Miami Beach,Pres- ident, John M. McCarty, Fort Pierce, In the Mat r of THE FLORIDA BAR, President-elect, William Reece Smith, Jr., d Petitioner. Tampa, President-elect Designate, Wallace No. 41006. M. Jopling, Lake City, and Russell E. `ulnruue Court of Florida. Carlisle, Ft. Lauderdale, for The Florida May 2.1, 7:171. Bar, petitioner. (h) ]tehe:u my .lane 11, 11171. J. Ben Watkins, Miami, for intervenor- Itchcuring I)enie(I June 15), 1971. respondent. ,i Original proceeding on petition by state bar to amend integration Wile to in- PER CURIAM. crease annual clues. The Supreme Court The Florida Bar petitioned this Court held that in light of inflation experience_ to amend Section i of Article VIII of the l i over previous five years leaving state bar Integration Rule of The Florida Bar, 32 nt position where it would have to reduce r S A , by striking the symbols and figures, t wrvices in field of unauthorized practice to-wit: "$37.50" where it appears one time of law and would I)c unable to strengthen therein, and substituting in lieu thereof, dt�ciplinary program, and in light of fact the symbols and figures, to-wit: "$55.00". that statewide lawyer referral service and irce distribution to all members of sug- The petitioner contends that inflation 1. gcsted minimum fee schedule was con- during the period since the last dues in- ungent on increase in dues, integration rule crease and the need for an allocation of could be amended to provide for increase approximately $5.00 per member per year ut dues up to $50 per annum, upon final for the proper funding of The Client Se- t ,uuhority from members in convention as- curity Fund, inter alia, justifies its request. .cml)ly, with $5 thereof earmarked for Due notice having been published in The �. dmit security fund. Florida Bar Journal, the petition was set I Order accordingly. for oral argument. All parties interested thus having had an opportunity to be f heard, and the Court having been fully Attorney and Client CD31 s advised in the premises, it is our opinion t In light of inflation experience over and we so hold that petitioner has made i, • f.re\ious five years leaving state bar in po- a prima facie showing for authority to ill- .lid •;uon \vhere it would have to reduce serv- crease the annual dues from $37.50 to ees in field of unauthorized practice of $45.00 per year, $5.00 to be earmarked for l.o% and would be unable to strengthen dis- the Client Security Fund, but that the final tpbnary program, and in light of fact that authority for so doing should come from ut ,tatc%vide lawyer referral service and free the members of The Florida Bar in con- vention l.,tribntion to all members of suggested assembled. An additional $10.00 n rtminntm fee schedule was contingent on may be assessed if and when approved by Fia Cases 248-249 S0.26-9 STATE EX REL. SOODHALTER v. BAKER Fla. 473 r�,��) Cite as,Flu.,2 45 So.2d 468 arise, the word "another" would be without Circuit Court); Arvida Corporation v. � tI meaning. City of Sarasota,supra. (6] This is not to say that the transfer [7] It will be noted from the citation :f meduanisnt is closed entirely to Circuit of authority accompanying our enunciation Courts. Fla.Const. Art. V, Sec. 6(3) de- of these general rules, that nothing new fines the appellate jurisdiction of the Cir- has been added to the transfer mechanism cuit Courts,as follows: to and from Circuit Courts by our opinion here. All we have said that is new is that u i "They shall have final appellate jurisdic- an appellate court whose original jurisdic- tion in all civil arlcl criminal cases aril- tion is improvidently invoked may transfer ing in the county court, or before county the cause to another appropriate appellate judges' courts, or all misdemeanors tried court.-7oWhere a litigant improvidently in- in criminal courts of record, and of all voles the original jurisdiction of a Circuit cases arising in municipal courts, small Court, the transfer mechanism is not avail- claims courts, and courts of justices of able ])(-cause that court is not acting as all the peace." appellate court. Conversely, where tite original jurisdiction of either this Court or The Florida Appellate Rules, including I . a District Court of Appeal is invoked when .1.R. 2.1, subd. a(5) (d), govern procedure the original jurisdiction belongs in a Cir- cuit the Circuit Court acting in the exercise � { Court, no transfer is available because of their appellate jurisdiction. See F.A.R. the transfer would not be to another appel- 4.7. Accordingly, where an appeal which late court. We speak here only of <U should be filed in the Circuit Court is filed trans- fers of causes between appellate courts. in a higher court, a transfer to the proper y. Circuit Court would be appropriate. See ? [8] The practical effect of the princi- M Christian v. State, 176 So.2d 561 (Fla. pie enunciated herein remains to be consid- `' :Ipldrd 1965) (misdemeanor conviction Bred. We note that under F.A.R. 2.1, r appealed to First District Court of Ap- subd. a(5) (d) transfer is permissive rath- peal); Dresner v. City of Tallahassee 134 cr than mandatory. We expect that cer- 5o?d 228 (Fla.1961) (conviction of viola- twin general propositions regarding the uon of municipal ordinance appealed to propriety of the transfer mechanism in any 4,pretne Court); Arvida Corporation v. given situation will evolve from a consid- C,ty of Sarasota, 213 So.2d 756 (Fla.App• eration of individual cases, and we are I 211(l 1968) (certiorari petition seeking re- therefore hesitant to set out definite stand- %low of administrative order improperly g i arils at this time. In general, however, we 3 u,u,sferred to Second District Court of conceive that where, on the record before r. Appeal by Circuit Court; retnmsferred to its, it given case does not clearly appear to Circuit Court); Fice v. State, 232 So.2d be without merit, it will be appropriate to 191 (Fla.App.3rd 1970) (misdemeanor con- transfer the cause to the appropriate appel- i action appealed to Third District Court of hate court, rather than dismiss it without Appeal); Merrill v. State, 225 So.2d 436 prejudice as we have done in the past. f la.App. 3rd, 1969) (misdemeanor convic- {{ uou appealed to Third District Court of [9] Accordingly, pursuant to the views i 1ppeal)• expressed herein, this suggestion for a writ 1. of prohibition be and is hereby transferred Conversely, where an appeal is improvi- to the Third District Court of Appeal for Cindy lodged with it Circuit Court, it may inquiry into this matter and for the grant- Lc transferred to the appropriate higher ing of such relief as that Court shall deem , court. In Re Grant's Estate, 117 So.2d 865 appropriate. fHa.App?nd 1960) (appeal from in order .' of probate court improvidently lodged with It is so ordered. pppl 246 So.2d-30-h t r k '~r Rule 9.040 RULES OF APPELLATE _ .JCEDLRE RULE 9.040 GENERAL PROVISIONS rized transfer when an improper forum was chosen, but the former rules did not address the problem of improper (a) Complete Determination. In all proceedings remedies being sought. The Advisory Committee does not j•. a court shall have such jurisdiction as may be neces- sary consider it to be the responsibility of the court to seek the for a complete determination of the cause. proper remedy for any party, but a court may not deny (b) Forum. If a proceeding is commenced in an relief because a different.remedy is proper. Under these inappropriate court, that court shall transfer the provisions a party will not automatically have his case 3, dismissed because he seeks an improper remedy or in. '� ?r" cause to an appropriate court. vokes the jurisdiction of the wrong court. The court must '. (c) Remedy. If a party seeks an improper reme- instead treat the case as if the proper remedy had been dy, the cause shall be treated as if the proper sought and transfer it to the court having P P g g jurisdiction. All remedy had been sought; provided that it shall not filings in the case have the same legal effect as though be the responsibility of the court to seek the proper originally filed in the court to which transfer is made. remedy. This rule is intended to supersede Nellen v. State, 226 So.2d 354 (Fla. 1st DCA 1969), where a petition for a (d) Amendment. At anv time in the interest of common law writ of certiorari was dismissed by the dis- justice, the court may permit any part of the pro- trict court of appeal because review was properly= by seeding to be amended so that it may be disposed of appeal to the appropriate circuit court, and Engel v. City on the merits. In the absence of amendment, the of North Miami, 115 So.2d 1 (F1a.1959), where a petition court may disregard any procedural error or defect for a writ of certiorari was dismissed because review that does not adversely affect the substantial rights should have been by appeal. Under this rule, a petition ' - F of the parties. for a writ of certiorari should be treated as a notice of appeal, if timely. (e) Assignments of Error. Assignments of error Section (d) is the appellate procedure counterpart of the ?..y are neither required nor permitted. harmless error statute, Section 59.041, Florida Statutes (f) Filing Fees. Filing fees may be paid by check (1975). It incorporates the concept contained in former ,`a .=•' or money order. Rule 3.2(c), which provided that deficiencies in the form or (g) Clerks' Duties. Upon filing of a notice pre scribed b substance of a notice of appeal were not grounds for ' dismissal, absent a clear showing that the adversary had y these rules, the clerk shall forthwith been misled or prejudiced. Amendments should be liberal- " ::i transmit the fee and a certified copy of the notice, ly allowed under this rule,including pleadings in the lower showing the date of filing, to the Court. When tribunal, where it would not result in irremediable preju- ". jurisdiction has been invoked pursuant to Rule dice. 9.030(a)(2)(A)(v); (a)(2)(A)(vi); or when a certificate Section(e)is intended to make clear that assignments of has been issued by a district court pursuant to Rule error have been abolished by these rules. It is not intend- ` 9.030(a)(2)(B)the clerk of the district court of appeal ed to extend the scope of review to matters other than t'sue` . shall transmit copies of the certificate and decision judicial acts. Where less than the entire record as defined w- s or order and an suggestion, replies or appendices in Rule 9.200(a)(1) is to be filed, Rule 9.200(a)(2)Y gg � P PP requi res q with the certified copy of the notice. Notices to service of a statement of the judicial acts for which review =Y review final orders of county and circuit courts in is sought. This requirement also applies under Rule civil cases shall be recorded. 9.140(d). As explained in the Commentary accompanying -w } those provisions,such a statement does not have the same (h) Non-Jurisdictional Matters. Failure of a legal effect as an assignment of error under the former -nom: clerk or a party timely to file fees or additional rules. ' copies of notices or petitions shall not be jurisdic- Section (f) permits payment of filing fees by check or tional; provided that such failure may be the sub- money order and carries forward the substance of former jest of appropriate sanction. Rule 3.2(a), which allowed payments in cash. Amended March 27, 1980, effective April 1, 1980 (381 Section (g) is derived from former Rules 3.2(a) and (e). So.2d 1370). Under these rules, notices and fees are filed in the lower tribunal unless specifically stated otherwise. The clerk Committee Notes must transmit the notice and fees immediately. This 1977 Revision. This rule sets forth several miscellane- requirement replaces the provision of the former rules ous matters of general applicability. that the notice be transmitted within five days. The Advisory Committee was of the view that no reason exist- Section (a) is derived from the last sentence of former ed for any delays. The term "forthwith" should not be Rule 21(a)(5)(a), which concerned direct appeals_ to the construed to prevent the clerk from delaying transmittal Y Supreme Court. This provision is intended to guarantee of a notice of criminal appeal for which no fee has been that once the jurisdiction of any court is properly invoked, filed for the period of time necessary to obtain an order the court may determine the entire case to the extent regarding solvency for appellate purposes and the appoint- - permitted by substantive law. This rule does not extend ment of the public defender for an insolvent defendant. or limit the constitutional or statutory jurisdiction of any This provision requires recording of the notice where court. review of a final trial court order in a civil case is sought. Sections (b) and (c) implement Article V, Section 2(a) of When Supreme Court jurisdiction is invoked on the basis k. the Florida Constitution. Former Rule 2.1(a)(5)(d) autho- of the certification of a question of great public interest, _ 536 S M.t Yep+. 4 .�•YC - a .F'�K 5. �kr ,�;f� "S�k c� •!"�.�' �3a 6151 ' .�lfy, ryf� �lwr� r � „ r 4i " t�.t �.'i t} {'-�y .ly _ 3' '- x i 9e.FP rS 4 a� C `t` ,4ryk:' d� rr's}Kai J '� �.. 1 r .. �.-',x' --•� �=T'r " .��,�t� s,;y! - -Z ry y..{•�M'La� ��y ` .,.Y'7�a�' ;ti,. IF 1• k c T j,� .' .✓"',._•.' r. .1' 'tom +1'+ ;���•• REED v. CITY OF HOLLYWOOD Fla. 759 Cite as 483 Sold 759(Fls.App.4 Dist. 1986) 1 large brown or unsafe structures and housing appeals ay. GARDEN PROPERTIES, board. The Circuit Court, Broward Coun- d and given a de. INC., Appellant, ty, Stephen R. Booher, J., dismissed the Mich they shortly v action, finding that it lacked subject matter )andoned on the jurisdiction because homeowner failed to i the convenience PARKER'S MECHANICAL exhaust legal and administrative remedies appellant nearby, CONTRACTORS, INC., available to him under building code, and to him,and ques- Appellee. homeowner appealed. The District Court wledge of the at- No. BG411. of Appeal held that dismissal of action allant responded would be affirmed insofar as it sought af- northward with a District Court of Appeal of Florida, firmative relief, but cause would be re- apprehended ap First District. manded with directions to treat action as ,hrough a nearby Feb. 4, 1986. one seeking certiorari review of the board's .38 revolver. Rehearing Denied March 27, 1986. action. Affirmed in part; remanded with di- cer the police in- Appeal from the Circuit Court for Oka- rections. ellant at his resi- loosa County; Keith Brace, Judge. having been ad- James E. Moore, of Moore & Moore, its, gave the in- 1. Injunction C-85(1) which he admit- Niceville, for appellant. Dale E. Rice, Crestview and Alan H. Municipal Corporations x642(1) ne he attempted Dismissal of house owner's action to is point in time Rosenbloom, Gulf Breeze, for appellee. enjoin demolition of his house as ordered ented that appel- by city unsafe structures and housing ap- peals board would be affirmed, but cause confession, there AFFIRMED. Neves v. Flannery, 149 would be remanded with directions to treat or constructive So. 618 (F1a.1933). action as one seeking certiorari review of one of the state board's action, where house owner had nt in possession SHIVERS,JOANOS and NIMMONS,JJ., sought judicial review within prescribed -tner, Johnston, concur. 30-day period (West's F.S.A. R.App.P. sting officer did Rules 9.030(c), 9.100(c)), and the court in pellant's person. a which he sought injunctive relief was the afession can be O T(EY NUMBER SYSTEM appropriate court to review by certiorari he state must the board's action. West's F.S.A. R.App.P. nce the corpus Rules 9.040(c), 9.040 note. ?endent of the 2. Courts x50 urn, 460 So.2d Transfer from court to appellate divi- tiz v. State, 388 Jack REED, Appellant, sion of the court, which court has created 0), petition for V. for its own administrative convenience, is 13 (F1a.1981); not a transfer from one court to another. 765 5 (F1a.1980). CITY OF HOLLYWOOD, a municipal ielow is precise- corporation, Appellee. doctrine prohib- No. 84-2403. Bernard Berman of Bernard Berman, used on appel- District Court of Appeal of Florida, P.A. Fort Lauderdale, for appellant. State. Fourth District. Andrew DeGraffenreidt, III, City Atty., conviction and Feb. 5, 1986. and Saul Smolar, .Asst. City Atty., Holly- a firearm by a wood, for appellee. ersed. Rehearing Denied March 24, 1986. PER CURIAM. )ONOVER, J., Homeowner brought action to enjoin Jack Reed appeals from an order of the demolition of his house as ordered by city trial court dismissing with prejudice his y 760 Fla. 483 SOUTHERN REPORTER, 2d SERIES suit to enjoin the demolition of his house as practice was formalized with the adoption ordered by the City of Hollywood Unsafe of Florida Rule of Appellate Procedure Structures and Housing Appeals Board 9.040(c): (the Board). The dismissal was based on REMEDY. If a party seeks an im- the trial court's finding that it lacked sub- proper remedy, a cause s a ated ject matter jurisdiction because Reed failed as 1 t e proper remedy had been sought; to exhaust legal and administrative reme- prove e t at it s a no a resp nsl dies available to him under Section 202.12 i 1ty o the court to see e of the South Florida Building Code. proper re m (1) We affirm the dismissal of the suit The Committee Notes to Rule 9.040(c) con- insofar as it sought injunctive relief; how- tain the following instructive language: ever, we remand the cause with directions to the trial court to treat Reed's suit as one The Advisory Committee does not con- seeking certiorari review of the Board's Sider it to be the responsibility of the court to seek the proper remedy for any action. party, but a court may not deny relief y Section 202.12 of the South Florida Build- because a different remedy is proper. ing Code provides that "[a]ny person ag- Under these provisions a party will not grieved by a decision of the Unsafe Struc- automatically have his case dismissed be- tures Board may seek judicial review of cause he seeks an improper remedy or that decision in accordance with the Florida invokes the jurisdiction of the wrong Appellate Rules." Florida Rules of Appel- court. The court must instead treat the late Procedure 9.030(c) and 9.100(c) (1977 case as if the proper remedy had been Revision) provide that the jurisdiction of sought and transfer it to the court hav- the circuit court may be invoked to review ing jurisdiction. administrative action when provided by law through petition for common law certiorari [2] Rule 9.040(c) has been interpreted filed within thirty days of rendition of the as requiring the circuit court to consider as order to be reviewed. timely a petition for certiorari filed more than thirty days after the challenged ad- Ten days after the Board ordered Reed's ministrative decision where the party had { house destroyed, he filed his suit for in- Previously filed a petition for writ of man- Junc ton tote circuit court alleging, inter damus within the thirty-day period. See at t e oard had acted without due Pridgen v. Board of County Commission- process of law. Thus. Reed cnugJ1tj.udicial__ ers of Orange County 389 So.2d 259 (Fla. review within the thirty-day period pre- 5th DCA 1980). Allowing Reed to now scrt e y e a e ate ru es, a t ougTi invoke the certiorari jurisdiction of the cir- t e remedy he c 1 C vd—ininnrtiva roroo_ cuit court is not prohibited, as the City of was t Pct' Hollywood urges, by the case of State ex H_ istorically, appellate courts have treat- rel. Soodhalter v. Baker, 248 So.2d 468 ed improper t e e ' ' ns and write as if (F1a.1971). In Soodhalter, the court was they were denominated correctly rather concerned only with the propriety of trans- an barring judicial review. See, e.g., Kil- ferring a matter from one court to another. gore v. tr , a. , 6 So.2d 541 Here no transfer is required. The circuit (1942); Radio Communications Corpora- court in which Reed sought injunctive relief tion v. Oki Electronics of America, Inc., is the appropriate court to review by certio- 277 So.2d 289 (Fla. 4th DCA 1973). This rari the Board's action.= i 1. Compare City of Hollywood v. Litteral, 446 2. If a court has for its own administrative con- i So.2d 1152(Fla.4th DCA 1984),wherein Litteral venience crew a an a ate ivision,the mat- sought injunctive relief more than two years ter may,o course, transferred there. That, following her discharge by the Civil Service however, is not a transfer fr­o­m­_o_n_e_c—oi7rf to Board as a community service officer. another. r RAFFONE v. STATE Fla. 761 j Cite as 483 Sold 761 (Fla.App.4 Dist. 1986) ith the adoption { AFFIRMED IN PART; REMANDED 2. Criminal Law ea627.8(6) llate Procedure WITH DIRECTIONS. Discovery violation was clear where state provided initial lab report indicating .y seeks an im- ANSTEAD, C.J., WALDEN, J., and that only three items tested for illegal sub- shall be treated FREDRICKA G. SMITH, Associate Judge, stances had produced positive results and iad been sought; ;a concur. then provided supplemental report at trial be the responsi =1 stating that another item had been tested eek the proper OWELY positive. West's F.S.A. RCrP Rule 3.220. NUMBER SYSTEM 3. Criminal Law a1035(2) ule 9.040((3) con- Defendant preserved for appellate re- ctive language: view issue of trial court's failure to hold ee does not con- Richardson hearing on prejudice resulting Ensibility of the from discovery violation because manner in remedy for any which matter was brought to trial court's not deny relief Salvatore James RAFFONE, Appellant, attention was more than sufficient to ap iedy is proper. V. prise court of nature of complaint, though t party will not defendant moved for mistrial and did not se dismissed be- STATE of Florida, Appellee. object because of discovery violation. )per remedy or Joyce K. KNIGHTON, Appellant, of the wrong 4. Criminal Law e.=1166(10.10) :tstead treat the V. Defendant's claim of prejudice from medy had been STATE of Florida, Appellee. late discovery disclosure, in prosecution on E the court hav- drug charges, was not barred where rea- Nos. 83-2312, 83-2313. sonable diligence would not have led to een interpreted District Court of Appeal of Florida, discovery of the evidence. �-t to consider as , Fourth District. 5. Criminal Law (3=1166(10.10) )mri filed more Feb. 5, 1986. For purposes of determining whether challenged ad- there had been lack of diligence precluding the party had Rehearing and/or Certification claim of prejudice from discovery violation, or writ of man- Denied March 19, 1986. defense in prosecution for various drug ty period. See charges was entitled to rely on accuracy of y Commission- State's lab report where report did not So.2d 259 (Fla. Defendants were convicted before the suggest incomplete testing of evidence Reed to now Circuit Court, Broward County, Frank A. even though seized drugs were available ction of the cir- Orlando, J., of various drug charges and for testing by defendant. as the City of they appealed. The District Court of Ap- ise of State ex peal, Hurley,J., held that: (1) the state vio- 6. Criminal Law e-627.8(6) 248 So.2d 468 lated its discovery obligations, and (2) the Trial court erred in failing to conduct the court was trial court erred in failing to conduct Rich- Richardson hearing, to determine preju- priety of trans- ardson inquiry as to possible prejudice dice resulting from discovery violation, curt to another. from discovery violation. where state disclosed one set of results in A. The circuit Reversed and remanded. lab report and then attempted to prove injunctive relief something else at trial. aview by certio- 1. Criminal Law (3=627.8(6), 1166(10.10) iministrative con- Failure of trial court to conduct full Robert FoL.rt Bogen e, Braverman & division, the mat- Richardson hearing, designed to ferret out Holmes, Fort Lauderdale, for appellant Sal rred there. That, vatore James Raffone. procedural prejudice occasioned by party s om one court to discovery violation, is per se reversible er- Richard L. Jorandby, Public Defender ror. and Tatjana Ostapoff, Asst. Public Defend- 1.' REED v. CITY OF HOLLYWOOD Fla. 759 Cite as 483 Sold 759 (Fla.App.4 Dist. 1986) unsafe structures and housing appeals GARDEN PROPERTIES, board. The Circuit Court, Broward Coun INC., Appellant, ty, Stephen R. Booher, J., dismissed the F st action, finding that it lacked subject matter V. jurisdiction because homeowner failed to l x. PARKER'S MECHANICAL exhaust legal and administrative remedies CONTRACTORS, INC., available to him under building code, and Appellee. homeowner appealed. The District Court No. BG-411. of Appeal held that dismissal of action would be affirmed insofar as it sought of District Court of Appeal of Florida, firmative relief, but cause would be re- First District. )� ! manded with directions to treat action as Feb. 4, 1986. one seeking certiorari review of the board's action. $ :' Rehearing Denied March 27, 1986. Affirmed in part; remanded with di- '{ ? Appeal from the Circuit Court for Oka- rections. loosa County; Keith Brace, Judge. James E. Moore, of Moore & Moore, t A 1. Injunction x85(1) iceville, for appellant. .f� r Municipal Corporations x642(1) ; s Dale E. Rice, Crestview and Alan H. asY Rosenbloom, Gulf Breeze, for appellee. Dismissal of house owners action to I enjoin demolition of his house as ordered by city unsafe structures and housing ap �$ PER CURIAM. } # peals board would be affirmed, but cause AFFIRMED. Neves v. Flannery, 149 would be remanded with directions to treat So. 618 (F'1a.1933). action as one seeking certiorari review of board's action, where house owner had SIIIVERS,JOANOS and NIMMONS,JJ., sought judicial review within prescribed concur. 30 day period [West's F.S.A. R.App.P. x ` Rules 9.030(c), 9.100(c)], and the court in ; Ell KEYNUM(fRSYS(EM Which he sought injunctive relief was the-- -- appropriate court to review by certiorari the board's action. West's F.S.A. R.App.P. 'E Rules 9.040(c), 9.040 note } R. 2. Courts x50 . Transfer from court to appellate divi- e Jack REED, Appellant, sion of the court, which court has created „ V. for its own administrative convenience, is CITY OF HOLLYWOOD, a municipal not a transfer from one court to another. u ,« corporation, Appellee. No. 84-2403. Bernard Berman of Bernard Berman, District Court of Appeal of Florida, P.A. Fort Lauderdale, for appellant. Fourth District. Andrew DeGraffenreidt, III, City Atty., ^`F Feb. 5, 1986. and Saul Smolar, Asst. City Atty., Holly wood, for appellee. - Rehearing Denied March 24, 1986. - PER CURIAM. Homeowner brought action to enjoin Jack Reed appeals from an order of the demolition of his house as ordered by city trial court dismissing with prejudice his 3 F.•-p_ i � i�wt 1•: T l; ?60 Fla. 483 SOUTHERN REPORTER, 2d SERIES i' suit to enjoin the demolition of his house as practice was formalized with the adoption AFFIRMED IN PAR ordered by the City of Hollywood Unsafe of Florida Rule of Appellate Procedure ti. WITH DIRECTIONS. Structures and Housing Appeals Board 9.040(c): (the Board). The dismissal was based on REMEDY. If a party seeks an im- ANSTEAD, C.J., WI the trial court's finding that it lacked sub- proper remedy,the cause shall be treated FREDRICKA G. SMITH, ject matter jurisdiction because Reed failed as if the proper remedy had been sought; concur. to exhaust legal and administrative reme- provided that it shall not be the responsi- dies available to him under Section 202.12 bility of the court to seek the proper w of the South Florida Building Code. remedy. o SKEY NUMBER Srs [1] We affirm the dismissal of the suit The Committee Notes to Rule 9.040(c) con- T insofar as it sought injunctive relief; how- tain the following instructive language: ever, we remand the cause with directions The Advisory Committee does not con- to the trial court to treat Reed's suit as one sider it to be the responsibility of the seeking certiorari review of the Board's court to seek the proper remedy for any action. party, but a court may not deny relief I Salvatore James RAFF( Section 202.12 of the South Florida Build- because a different remedy is proper. s ing Code provides that "[a]ny person ag- Under these provisions a party will not V. grieved by a decision of the Unsafe Struc- automatically have his case dismissed be- STATE of Florida, tures Board may seek judicial review of cause he seeks an improper remedy or that decision in accordance with the Florida invokes the jurisdiction of the wrong Joyce K. KNIGHTON Appellate Rules." Florida Rules of Appel- court. The court must instead treat the v late Procedure 9.030(c) and 9.100(c) (1977 case as if the proper remedy had been STATE of Florida, Revision) provide that the jurisdiction of sought and transfer it to the court hav- the circuit court may be invoked to review ing jurisdiction. Nos. 83-2312, 83 administrative action when provided by law through petition for common law certiorari [2] Rule 9.040(c) has been interpreted District Court of Appea filed within thirty days of rendition of the as requiring the circuit court to consider as # Fourth Distri timely a petition for certiorari filed more order to be reviewed. Feb. 5, 1986 than thirty days after the challenged ad- i Ten days after the Board ordered Reed's ministrative decision where the party had Rehearing and/or Ce house destroyed, he filed his suit for in- previously filed a petition for writ of man- Denied March 19, junction in the circuit court alleging, inter damus within the thirty-day period. See alia, that the Board had acted without due Pridgen v. Board of County Commission- process of law. Thus, Reed sought judicial ers of Orange County 389 So.2d 259 (Fla. Defendants were convii review within the thirty-day period pre- 5th DCA 1980). Allowing Reed to now Circuit Court, Broward Cot scribed by the appellate rules,' although invoke the certiorari jurisdiction of the cir- Orlando, J., of various dru the remedy he selected—injunctive relief— cuit court is not prohibited, as the City of they appealed. The Districi was incorrect. Hollywood urges, by the case of State ex peal, Hurley,J., held that: (I Historically, appellate courts have treat- rel. Soodhalter v. Baker, 248 So.2d 468 lated its discovery obligatioi ed improperly filed petitions and writs as if (F1a.1971). In Soodhalter, the court was trial court erred in failing to they were denominated correctly rather concerned only with the propriety of trans- ardson inquiry as to posy than barring judicial review. See, e.g., Kil- ferring a matter from one court to another. from discovery violation. gore v. Bird, 149 Fla. 570, 6 So.2d 541 Here no transfer is required. The circuit (1942); Radio Communications Corpora- court in which Reed sought injunctive relief Reversed and remanded. tion v. Oki Electronics of America, Inc., is the appropriate court to review by certio- 277 So.2d 289 (Fla. 4th DCA 1973). This rari the Board's action? 1. Criminal Law x627.8( 1. Compare City of Hollylvood v. Litterat; 446 2. If a court has for its own administrative con- Failure of trial court So.2d 1152(Fla.4th DCA 1984),wherein Litteral venience created an appellate division,the mat- Richardson hearing, designe sought injunctive relief more than two years ter may, of course, be transferred there. That, following her discharge by the Civil Service however, is not a transfer from one court to procedural prejudice OCC3Si0 Board as a community service officer. another. discovery violation, is per se ror. �1y•�'"-,�r�'S'%%t`'�,r'x' x a,- . ("t RAFFONE v. STATE Fla. 761 t ' Cite as 483 Sold 761 (Fla.App.4 Dist. 1986) AFFIRMED IN PART; REMANDED 2. Criminal Law X627.8(6) 4 WITH DIRECTIONS. Discovery violation was clear where 1 ° state provided initial lab report indicating ANSTEAD, C.J., WALDEN, J., and that only three items tested for illegal sub # T'. FREDRICKA G. SMITH, Associate Judge, stances had produced positive results and concur. then provided supplemental report at trial ` stating that another item had been tested ! W positive. West's F.S.A. RCrP Rule 3.220. - O S KEY NUMBER SYSTEM i _ T 3. Criminal Law x1035(2) Defendant preserved for appellate re- �a1� � view issue of trial court's failure to hold f i Richardson hearing on prejudice resulting from discovery violation because manner in ' which matter was brought to trial court's j Salvatore James RAFFONE, Appellant, attention was more than sufficient to ap i ' v. prise court of nature of complaint, though + '' STATE of Florida, Appellee. defendant moved for mistrial and did not y object because of discovery violation. Joyce K. KNIGHTON, Appellant, 4. Criminal Law «1166(10.10) i V. Defendant's claim of prejudice from late discover disclosure in prosecution on STATE of Florida, Appellee. Y � P drug charges, was not barred where rea- Nos. 83-2312, 83-2313. sonable diligence would not have led to District Court of Appeal of Florida, discovery of the evidence. ! Fourth District. 5. Criminal Law x1166(10.10) purposes ur oses of determining Feb. 5, 1986. P l; whether there had been lack of diligence precluding Rehearing and/or Certification claim of prejudice from discovery violation, Denied March 19, 1986. defense in prosecution for various drug charges was entitled to rely on accuracy of State's lab report where report did not Defendants were convicted before the suggest incomplete testing of evidence Circuit Court, Broward County, Frank A. even though seized drugs were available Orlando, J., of various drug charges and for testing by defendant they appealed. The District Court of Ap . . peal,Hurley,J., held that: (1) the state vio- 6. Criminal Law x627.8(6) lated its discovery obligations, and (2) the Trial court erred in failing to conduct n 1 trial court erred in failing to conduct Rich- Richardson hearing, to determine preju- ardson inquiry as to possible prejudice dice resulting from discovery violation, ti from discovery violation. where state disclosed one set of results in . lab report and then attempted Reversed and remanded. P to prove something else at trial. j, 1. Criminal Law x627.8(6), 1166(10.10) ;. Failure of trial court to conduct full Robert L. Bogen of Braverman & L r Richardson hearing, designed to ferret out vatore James Raffone.Holmes, Fort Lauderdale, for appellant-Sal- procedural prejudice occasioned by party's -�: discovery violation, is per se reversible er- Richard L. Jorandby, Public Defender ror. and Tatjana Ostapoff, Asst. Public Defend- �f r 7; y �q,.9 "i �9 1}F �t `k s .. �' r -��� -s,i c. ,+:,y - 3,•i, I. 760 Fla. 483 SOUTHERN REPORTER, 2d SERIES 'x ` suit to enjoin the demolition of his house as practice was , rW ordered by the City of Hollywood Unsafe of Florida Rule moftZ Appellate h pr Procedure Structures and Housing 'Appeals Board 9.040(c): ocedure (the Board). The dismissal was based on the trial court's finding that it lacked sub REMEDY. If a party seeks an im• ,` proper remedy, the cause shall be treated { �� ..a•, �:, ject matter jurisdiction because Reed failed to exhaust legal and administrative reme- as if the proper remedy had been sought; dies available to him under Section 202.12 Provided that it shall not be the responsi a of the South Florida Building Code bility of the court to seek the proper _, ✓` �� remedy. l [1] We affirm the dismissal of the suit The Committee Notes to Rule 9.040 insofar as it sought injunctive relief; how- '�* (c)con- insofar we remand the cause with directions tarn the following instructive language: to the trial court to treat Reed's suit as one The Advisory Committee does not con- a t seeking certiorari review of the Board's sider it to be the responsibility of the action. court to seek the proper remedy for any party, but a court may not deny relief Section t= on 202.12 of the South Florida Build because a different remedy is proper.+ ing Code provides that "[a]ny Persona Per. g- Under these provisions a party will not � . grieved by a decision of the Unsafe Struc- automatically have his case dismissed be• 3 tures Board may seek judicial review of cause he seeks.an im ro er remedy or that decision in accordance with the Florida Appellate Rules." Florida Rules of A gel_ makes the jurisdiction _of the wrong + late Procedure 9.030(c) and 9.100(c) (1977 court. The court tnustrnstead..tceat.the the r # ):« Revision case as ifnroperemedy had been I ,z t ) provide that the jurisdiction of sought and transfer it to the court hac• ; t+ the circuit court may be invoked to review J uris ng diction 1administrative action when provided by law .�`"�'"-'"�"•"'•-~°--� # , F It Rule 9.040 hrough petition for common law certiorari (2] (c) has been interpreted filed within thirty days of rendition of the as requiring the circuit court to consider as order to be reviewed. timely a petition for certiorari file y t �- d more Ten days after the Board ordered Reed's than t irty days a ter a challenged ad. �,+�• t house destroyed, he filed his suit for in mini"sfr"afive—c3e tc sion w ere -pgrty had u previous y,fafei3a pjor wrt j' nction in the circuit court alleging, inter man hlia that the Board had acted without due amus within the thirt da erio , r r F'ridgen v. Board of Count rs� N. process of law. Thus, Reed sought judicial ! y Commission. 1 review within the thirty-day period pre- ers of Orange County 389 So.2d 259(Fla. ,4 bth DCA 1980). Allowing scribed by the appellate rules,' although g Reed to now - I ' ` invoke the certiorari ;;� �„��/i � �he remedy he selected—injuruti�a rPli�s— jurisdiction of the cir• ' was incorrect. t t uit court is not prohibited, as the City of ++ _ Hollywood urges, =�:'�`�°• 'i') Historical] a by the case of State rr Y, appellate courts have treat- �el. Soodhalter v. Baker, 248 So.2d 468 ed improperly filed petitions and writs as if Fla.1971). In Soodhalter, t e court Kas Y were denominated correct] than barring Y ather concerned only with the propriety of trans •� g judicial review. See, e.g., Ifil ferring a matter from one court to another. «, t r � x f gore v. Bird, 149 Fla. 570, 6 So.2d 541 Here no transfer is required. The circuit a 'l (1942); Radio Communications Corpora- court in which Reed sought injunctive relif tion v. Oki Electronics of America, Inc., �s tie_ar”r g I _ t'1) 277 So.2d 289 (Fla. 4th DCA 1973). This raii.the Boa d�s �t„ion s eW �er.o- w � . 1 Compare City of Hollywood v. Gitteral, 446 2. If a court has for its own administrative con• r d' So.2d 1152(Fla.4th DCA 1984),wherein Litteral venienc^ Mr ate ;an a hale drvys�+on, sought injunctive relief more than two Pp�- t—e .r,..,. vi following her discharge by the Civil Sery Service 4however,©s not a t�ranstersfrom one court to I s {, d4g%.That. . J, Board as a community service officer. another. �� '��� +W'�Y. .fir �` .t�.,+pr•�, x.''..%. , e , PRIDGEN v. BOARD OF COUNTY COM'RS, ETC. Fla. Cite as,Fla.App.,389 Sold 259 259 n clearly did not intend to make a gift to Therefore, I would affirm the final judg- Mrs. Leonard of a one—half interest in ment here under review. .Ti;,jori ority herein. the houseboat. This Court finds, how- .,elution entered ever, that she did contribute $8,600.00 .,;irt, as follows: towards the houseboat. On the authority w of Ball v. Ball, 335 So.2d 5(Fla.S.Ct.1976) S RE,z-BBEI, STEM and Mitchell v. Mitchell, 368 So.2d 628 i nt were mar- (Fla. 4th DCA 1979), ELIZABETH Florida, on ANNE LEONARD has a special equity in ..,rated on Sep- ;. the houseboat to the extent of $8,600.00 ;ire no children plus accrued interest on the monies she marriage is advanced of $2,064.00 for a total of $10,- Wiley Ulee PRIDGEN, Appellant, the course 664.00. ner/Wife has v ntly self-sup- BOARD OF COUNTY COMMISSIONERS fur alimony t ORDERED and ADJUDGED as fol- OF ORANGE COUNTY et al., lows: rr.ently earns a 1. That the bonds of marriage be- Appellees. she earned tween Petitioner, ELIZABETH ANNE No. 79-462. $10,000.00 °• LEONARD, and Respondent, WILLIAM. District Court of Appeal of Florida, ^xmcy market LEONARD, are dissolved because the $15,000.00. marriage is irretrievably broken.of Fifth District. has filed with 2. WILLIAM LEONARD is ordered Oct. 1, 1980. of $45,000.00 to pay within thirty (30) days of this Rehearing Denied Oct. 30, 1980. Mani testified Order to ELIZABETH ANNE LEON- ri UO towards a ARD the sum of $10,664.00, and to cause titled in the ; ' the Jefferson National Bank to release Applicant for license to carry a con- 't!', The bal- ELIZABETH ANNE LEONARD from coaled weapon sought review of final action 9n v,fw�st came her liability on the note secured by the taken by Board of County Commissioners Although houseboat. ELIZABETH ANNE LEON- denying his application. The Circuit Court, .,ige and note ARD is ordered to transfer to WILLIAM Orange County, Maurice M. Paul,J.,denied -nat Rank, the LEONARD her interest upon said pay- applicant's petition for writ of mandamus will release ments in the houseboat titled under Flori- without prejudice and dismissed applicant's ,a!j,;� %, on the da Title No. 510502. subsequently filed "amended" petition for A,11.1)question writ of certiorari. Applicant appealed. �x bulk of the On this appeal, the wife contends that the The District Court of Appeal, Sharp, J., 1,sloe houseboat trial court erred in not awarding her one held that even though mandamus was an X)NtiARD. Al- half interest in the houseboat. I disagree inappropriate remedy, the Circuit Court bitted the bulk and would affirm. See: Forehand v. Fore- should have considered the amended peti- t end origi- hand, 363 So.2d 829 (Fla. 1st DCA 1978); tion on the merits where the petition for A ho name, Canakaris v. Canakaris,382 So.2d 1197(Fla. writ of mandamus had been filed within lender, re- 1980)• It is clear from the finding of the thirty days of the county commissioners' 'erred to trial judge that title to the houseboat would decision. W K•ife to have remained solely in the husband but for the lien the requirement of the bank that the title Reversed and remanded. This be placed in both names at the time of a Dauksch, C. J., concurred specially and Lkoinard loan to the husband. The bank has agreed filed opinion. to release the wife from the obligation on n,379 the loan and the trial judge has adequately returned to her the funds advanced by her 1. Action 10=37 of her toward the improvement of the houseboat, Rule that cause shall be treated as if It hJive and I think the matter is controlled by proper remedy had been sought if a party Forehand, supra. seeks an improper remedy is mandatory. NMI I k i 260 Fla. 389 SOUTHERN REPORTER, 2d SERIES 32 West's F.S.A. Rules of Appellate Proce- prejudice to the plaintiff to file such fur- dure, Rule 9.040(c). ther amendments in this proceeding as may 2. Action c-37 be appropriate." Thirty-one days after the Rule that cause shall be treated as if circuit court ruled, Pridgen filed an proper remedy had been sought if party "amended" petition for writ of certiorari in seeks an improper remedy encompasses all the circuit court. The court dismissed it "improper" remedies, whatever their label because it was filed more than 30 days after � or title. 32 West's F.S.A. Rules of Appel- the Board denied Pridgen's application for a late Procedure, Rule 9.040(c). license. 3. Limitation of Actions 0=123 Appellate courts have long held that an Circuit court erred in dismissing as un- improvidently filed petition for writ of pro- timely applicant's amended petition for writ hibition may be treated as a of certiorari for review of decision'of coun- writ ol certiorari. Kilgore v. Bird, 149 Fla. ty commissioners denying his application 625, 6 So.2d 541 (1942); Wainwright v. for license to carry a concealed weapon in Booth, 291 So.2d 74 (Fla-2d DCA 1974). light of rule governing the seeking of an Similarly courts have allowed an improperly improper remedy where, within thirty days filed interlocutory appeal to be treated as a of denial, applicant had filed a petition for petition for certiorari. Radio Communica- writ of mandamus which was denied with- tions Corp. v. Oki Electronics of America, out prejudice. 32 West's F.S.A. Rules of Inc., 277 So.2d 289 (Fla.4th DCA 1973); Appellate Procedure, Rule 9.040(c). Stein v. Bayfront Medical Center, Inc., 287 So.2d 401 (Fla.3d DCA 1973). H. Franklin Robbins, Jr., Orlando, for [1,21 Against this background of judi- appellant, cial precedents, the Florida Supreme Court Philip H. Trees, Orlando, for appellees. adopted Florida Rule of Appellate Proce- dure 9.040(c), which provides: SHARP, Judge. If a partv�s an improper remesl;y,�ee Pridgen urges that the circuit court erred cause shall ek treated as if the proper in dismissing as untimely his amended peti- come v adlieensnpn rwi p at it tion for writ of certiorari. He was seeking shall not be the rest>onsibility of the court review of final action taken by the Board of to seek the prover remedy, (Emphasis County Commissioners. We have jurisdic- supplied). tion to consider this appeal.' The verb form "shall" generall connotes a Pridgen applied to the Board of County mandate to do something, and gives the Commissioners for a license to carry a con- person so directed no discretion to refrain coaled weapon. from compliance.4 Selection of the "com- days of the denial, Pridgen filed a petition mand" form of the verb in the rule must for writ of mandamus in rho circuit court. have been deliberate in view of the prior Review ew_of the Board's action should have case laws and we conclude it is mandatory. been sought by filing a petition for writ of We also re iect the Board's argument that certiorari 2 The circuit court derned a rule 9.040(c) is limited to treating errone- petition for writ of mandamus "without ously filed petitions for writs of certiorari 1. Fla.R.App.P. 9.030(b)(1)(A); State v. Furen, 4. Tascano %.. State. No. 55,394 (Fla. June 16, 118 So.2d 6 (Fla. 1960); Wexler v. Ring, 125 1980); Marra}' v. State,378 So.2d 111 (Fla.5th So.2d 883 (Fla.3d DCA 1961). DCA 1980). 2. Fla.R.App.P. 9.030(c)(3); Fla.R.Civ.P. 5. See Swartz v. State, 316 So.2d 618 (Fla.lst 1.640(a). DCA 1975). 3. Webster's New Collegiate Dictionary 1056 (8th ed. 1979). t J'O GRIFFIN v. STATE Fla. 261 Cite as,Fla.App.,389 So.2d 261 file such fur- as appeals. The rule encompasses all "im- ;eeding as may proper remedies, whatever_ their label or Edmund Dorr GRIFFIN, Appellant, days after the title. ;en filed an [3] In this case the circuit court proper- V. proper- of certiorari in ly no'ud"tha man amus was an inapproprl- STATE of Florida, Appellee. •t dismissed it a y, an a owe�e peTitioner o ) li days after 1 e amen ed pleadings. Pursuant to Rule No. 78-1034. iplication fora c , e court should have considered District Court of Appeal of Florida, the amended petition for writ of certiorari Fourth District. held that an on the merits, when it was filed. ,)r writ of pro- Accordingly, we quash the court's dis- Oct. 1, 1980. a petition for missal and reinstate the amended petition. On Rehearing Nov. 12, 1980. Bird, 149 Fla REVERSED and REMANDED. -Vainwright v. Appeal from Circuit Court, Broward I DCA 1974). COWART, J., concurs. County; Thomas M. Coker, Jr., Judge. an improperly Te treated as a DAUKSCH, C. J., concurs specially with Richard L. Jorandby, Public Defender, Communica- opinion. and Anthony Calvello, Asst. Public Defend- s of America, DAUKSCH, Chief Judge, concurring spe- er, West Palm Beach, for appellant. DCA 1973); cially: Jim Smith, Atty. Gen., Tallahassee, and nter, Inc., 287 While I concur with the majority opinion, Max Rudmann,Asst. Atty. Gen., West Palm I must note it is not without some reserva- Beach, for appellee. tions. The original petition for writ of ound of judi- mandamus was denied by the trial court upreme Court without any reason given for the denial and PER CURIAM. ,)ellate Proce- without any motion or other response from Affirmed on the authority of Lawrence v. the board of commissioners having first State, 388 So.2d 1250 (Fla. 4th DCA 1980). •r remedy, the been filed.[ Therefore, I cannot know why if the proper the mandamus was denied. I should not MOORE, BERANEK and HURLEY, J.J., •ovided that it speculate why it was denied but there could concur. y of the court be reasons other than merely that an im- (Emphasis proper remedy was sought. The order is silent as to the reason. Because the order ON REHEARING lly connotes a gives the appellant an undesignated period PER CURIAM. tnd gives the of time to file "such further amendments in ion to refrain this proceeding as may be appropriate," I On petition for rehearing, we certify that of the "com_ shall agree that the jurisdictional time limit our affirmance in this case passed upon the was met when the first petition was filed. same questions we certified to be of great .he rule must p public importance in Lawrence v. State,388 of the prior If the trial court had set a time limit for the is mandatory. filing of the "amendments" and the appel- So.2d 1250 (Fla. 4th DCA 1980). The deci- rgument that lant had failed to make that deadline, or if sion in this case should abide the decision in ,ating errone- a substantial reason had been set out in the Lawrence. Accordingly, we adhere to our of certiorari order, then I might decide otherwise. affirmance and certify the identical ques- tions in Lawrence as passing upon matters (Fla. ,rune 16, of great public importance. 2d 111 (Fla.5th w O $NEY NUMBER SYSTEM MOORE, BERANEK and HURLEY, JJ., 2d 618 (Fla.lst concur. 1. This is because the board evidently was not summons, notice to its attorney or otherwise. served with a copy of the petition either by r QF S PRIDGEN v. BOARD OF COUNTY COM'RS, ETC. Fla. Cite as,Fla.App.,389 Sold 259 259 nting' clearly did not intend to make a gift to Therefore, I would affirm the final judg- Mrs. Leonard of a one--half interest in ment here under review. .»;ijority herein. the houseboat. This Court finds, how- .ulution entered , ever, that she did contribute $8,600.00 as follows: towards the houseboat. On the authority w of Ball v. Ball, 335 So.2d 5(F1a.S.Ct.1976) and Mitchell v. , 368 So.2d 628 $ EY NUMBER SYSTEM Mitchell nt were mar- 1 (Fla. 4th DCA 1979), ELIZABETH ;tV. Florida, on ANNE LEONARD has a special equity in .,r:,ted on Sep- the houseboat to the extent of $8,600.00 are no children ' plus accrued interest on the monies she marriage is advanced of $2,064.00 for a total of $10,- Wiley Ulee PRIDGEN Appellant, ncri Wife has `* V. nth• self-sup- = BOARD OF COUNTY COMMISSIONERS for alimony ORDERED and ADJUDGED as fol- OF ORANGE COUNTY et al., m lows: rescntly earns 1. That the bonds of marriage be- Appellees. she earned tween Petitioner, ELIZABETH ANNE No. 79-462. *:E< $10,000.00 LEONARD, and Respondent, WILLIAM District Court of A money market LEONARD, are dissolved because the Appeal of Florida, of $15,000.00. marriage is irretrievably broken. Fifth District. ^a, filed with 2. WILLIAM LEONARD is ordered Oct. 1, 1980. of $45,000.00 to pay within thirty (30) days of this Rehearing Denied Oct. 30, 1980. r.ard testified t Order to ELIZABETH ANNE LEON- M towards ARD the sum of $10,664.00, and to cause t titled in the s ' the Jefferson National Bank to release Applicant for license to carry a con- ;:, The bal- ELIZABETH ANNE LEONARD from coaled weapon sought review of final action came her liability on the note secured by the taken by Board of County Commissioners Ki' Although houseboat. ELIZABETH ANNE LEON- denying his application. The Circuit Court, ,,We and note A. ARD is ordered to transfer to WILLIAM Orange County, Maurice M. Paul, J., denied ,A! Bank, the LEONARD her interest upon said pay- applicant's petition for writ of mandamus tr, will release ments in the houseboat titled under Flori- without prejudice and dismissed applicant's Aa,iitr on the da Title No. 510502. subsequently filed "amended" petition for - is Co question writ of certiorari. Applicant a -,-v Dulk of the On this appeal, the wife contends that the The District Court of A pp PPeal, Sharpp,, J.,., t to houseboat trial court erred in not awarding her one held that even though mandamus was an ENARD. Al- half interest in the houseboat. I disagree inappropriate remedy, the Circuit Court 0WW the bulk and would affirm. See: Forehand v. Fore- should have considered the amended peti- Ow rand origi- hand, 363 So.2d 829 (Fla. 1st DCA 1978); tion on the merits where the petition for h Qu name, Canakaris v. Canakaris,382 So.2d 1197(Fla. writ of mandamus had been filed within lender, re- 1980)• It is clear from the finding of the thirty days of the county commissioners' !erred to trial judge that title to the houseboat would decision. Wife to have remained solely in the husband but for the lien the requirement of the bank that the title Reversed and remanded. This be placed in both names at the time of a Dauksch, C. J., concurred specially and +nar loan to the husband. The bank has agreed filed opinion. to release the wife from the obligation on n.379 the loan and the trial judge has adequately returned to her the funds advanced by her 1. Action c=-37 nt her toward the improvement of the houseboat, Rule that cause shall be treated as if th,ve and I think the matter is controlled by proper remedy had been sought if a party Forehand, supra. seeks an improper remedy is mandatory. i l meow 260 Fla. 389 SOUTHERN REPORTER, 2d SERIES 1 32 West's F.S.A. Rules of Appellate Proce- prejudice to the plaintiff to file such fur- dure, Rule 9.040((). ther amendments in this proceeding as may 2. Action X37 be appropriate." Thirty-one days after the Rule that cause shall be treated as if circuit court ruled, Pridgen filed an proper remedy had been sought if party "amended" petition for writ of certiorari in seeks an improper remedy encompasses all the circuit court. The court dismissed it "improper" remedies, whatever their label because it was filed more than 30 days after or title. 32 West's F.S.A. Rules of Appel- the Board denied Pridgen's application for a late Procedure, Rule 9.040((). license. 3. Limitation of Actions x123 Appellate courts have long held that an Circuit court erred in dismissing as un- improvidently filed petition for writ of pro- timely applicant's amended petition for writ ' ition may be treated as a of certiorari for review of decision of coun- Writ of certiorari. Kilgore v. Bird, 149 Fla. ty commissioners denying his application 625, 6 S0.2d 541 (1942); Wainwright v. for license to carry a concealed weapon in Booth, 291 So.2d 74 (Fla.2d DCA 1974). light of rule governing the seeking of an Similarly courts have allowed an imprDperiy improper remedy where, within thirty days filed interlocutory appeal to be treated as a of denial, applicant had filed a petition for petition for Serb rar; Radio Communica- writ of mandamus which was denied with- tions Corp. v. Oki Electronics of America, out prejudice. 32 West's F.S.A. Rules of Inc., 277 So.2d 289 (Fla.4th DCA 1973); Appellate Procedure, Rule 9.040((). Stein v. Bayfront Medical Center, Inc., 287 So.2d 401 (Fla.3d DCA 1973). H. Franklin Robbins, Jr., Orlando, for (1,21 Against this background of judi- appellant. cial precedents, the Florida Supreme Court Philip H. Trees, Orlando,. for appellees. adopted Florida Rule of Appellate Proce- (lure 9.040(( , which provides: SHARP, Judge. If a I>arty see^lcs�an improper rem�j!, the ' Pridgen urges that the circuit court erred cause shall be treated as if the proper in dismissing as untimely his amended yeti- tion for writ of certiorari. He was seeking shall not be the res>orisibility of th`a court review of final action taken by the Board of to seek the Droper remedy. ( mphasis County Commissioners. We have jurisdic- supplied). tion to consider this appeal.' The verb form "shall" generally connotes a Pridgen applied to the Board of County mandate to do something, and gives the Comm ss ii oners for a license to car on- person so directed no discretion to refrain cea ed weapon. It way d nic�� from compliance.4 Selection of the "com- days of the denial, Pridgen filed a petition mand" form of the verb in the rule must for writ of man in it court. have been deliberate in view of the prior Review of the_ hould have case law,5 and we conclude it is mandatory. been, s� ought by filing a petition for writ of We also reiect the Board's argument tbat certiorarl.z The circuit court enledZFe rule 9.040(() is limited to treating errone- petition for writ of mandamus "without ously filed petitions for writs of certiorari 1. Fla.R.App.P. 9.030(b)(1)(A); State v. Furen• 4. Tasc•ano v. State. No. 55.394 (Fla. June 16,+ 118 So.2d 6 (Fla. 1960); Wexler %,. Ring. 125 1980); Nlarra} v. State,378 So.2d I I1 (Fla.Sth So.2d 883 (Fla.3d DCA 1961). DCA 1980). 2. Fla.R.App.P. 9.030(()(3); Fla.R.Civ.P. 5. See Swartz v. State, 316 So.2d 618 (Fla.lst 1.640(a). DCA 1975). 3. Webster's New Collegiate Dictionary 1056 (8th ed. 1979). t GRIFFIN v. STATE Fla. 261 Cite as,Fla.App.,389 So.2d 261 file such fur- as appeals. The rule encompasses all "im- :eeding may proper remedies, whatever their label or Edmund Dorr GRIFFIN, Appellant, days after r the title. ;en filed an v. of certiorari in [3] In this case the circuit court proper- -t dismissed it ly notec a man amus was an inapproprl_ STATE of Florida, Appellee. n 30 days after a y, anc a owe e pe i loner­Tq— No. 78-1034. )plication fora 1 e amen ed pleadings. Pursuant to Rule c , e court should have considered District Court of Appeal of Florida, the amended petition for writ of certiorari Fourth District. held that an on the merits, when it was filed. or writ of pro- Accordingly, we quash the court's dis- Oct. 1, 1980. a petition for missal and reinstate the amended petition. On Rehearing Nov. 12, 1980. Bird, 149 Fla. REVERSED and REMANDED. Vainwright v. Appeal from Circuit Court, Broward i DCA 1974). COWART, J., concurs. County; Thomas M. Coker, Jr., Judge. an improperly ,e treated as a DAUKSCH, C. J., concurs specially with Richard L. Jorandby, Public Defender, o Communica- opinion. and Anthony Calvello, Asst. Public Defend- ,s of America, DAUKSCH, Chief Judge, concurring spe- er, West Palm Beach, for appellant. t DCA 1973); cially: Jim Smith, Atty. Gen., Tallahassee, and �nter, Inc., 287 While I concur with the majority opinion, Max Rudmann,Asst. Atty. Gen., West Palm I must note it is not without some reserva- Beach, for appellee. tions. The original petition for writ of •ound of judi- mandamus was denied by the trial court ,upreme Court without any reason given for the denial and PER CL RIAM. pellate Proce- without any motion or other response from Affirmed on the authority of Lawrence v. the board of commissioners having first State, 388 So.2d 1250 (Fla. 4th DCA 1980). !r remedy, the been filed.' Therefore, I cannot know why if the proper the mandamus was denied. I should not MOORE, BERANEK and HURLEY, J.J., rovided that it speculate why it was denied but there could concur. y of the court be reasons other than merely that an im- �. (Emphasis proper remedy was sought. The order is silent as to the reason. Because the order ON REHEARING lly connotes a gives the appellant an undesignated period PER CURIAM. tnd gives the of time to file "such further amendments in ion to refrain this proceeding as may be appropriate," I On petition for rehearing, we certify that shall agree that the jurisdictional time limit our affirmance in this case passed upon the of the "com- J same questions we certified to be of great the rule must was met when the first petition was filed. of the prior If the trial court had set a time limit for the Public importance in Lawrence v. State,388 is mandatory. filing of the."amendments" and the appel- So.2d 1250 (Fla. 4th DCA 1980). The deci- rgument that lant had faild to make that deadline, or if sion in this case should abide the decision in •ating errone- a substantial reason had been set out in the Lawrence. Accordingly, we adhere to our of certiorari order, then I might decide otherwise. affirmance and certify the identical ques- tions in Lawrence as passing upon matters (Fla. June 16, of great public importance. 2d 111 (Fla.5th W O E KEYNUMBERSYSTEM Y MOORE, BERANEK and HURLEY, JJ., 2d 618 (Fla.ist concur. 1. This is because the board evidently was not summons, notice to its attorney or otherwise. served with a copy of the petition either by 16 Fla. 414 SOUTHERN REPORTER, 2d SERIES ing "intangible personal property, including board of commissioners. The Circuit Court, rights, privileges, interests, and claims." Orange County, B. C. Muszynski, J., dis- We answer appellant's question in the af- missed petition, and plaintiff appealed. firmative and hold that credit on a charge The District Court of Appeal, Cowart, J., account is property which may be the sub- held that plaintiff erred in filing petition ject of theft under Florida's omnibus theft for review in circuit court rather than in statute, section 812.014, Florida Statutes District Court of Appeal, but circuit court (1979). erred in dismissing the petition rather than [2-4) Appellant also contends that, at transferring it to District Court of Appeal, most, the evidence establishes two misde- and the dismissal order would be reversed meanors of petit theft rather than one felo- with directions to transfer the cause. ny of grand larceny. Appellant's argument Reversed with directions. is based on his assumption that the theft of the credit occurred and was completed be- fore the theft of the travel kit occurred and Courts X216 that the theft of the travel kit did not occur Plaintiff erred in filing petition in cir- until he left the store without paying for it. cuit court for review of a final decision of The crime of theft encompasses not only fire control district's board of commission- the completed theft but also the attempt to ers, rather than in District Court of Appeal, steal. § 812.014(1), F1a.Stat. (1979). but circuit court erred in dismissing the Therefore, the theft or attempted theft of petition rather than transferring it to Dis- multiple items,such as the credit and travel trict Court of Appeal, and the dismissal kit, at the same time and place, can coati- order would be reversed with directions to ' tute one theft. See Hearn v. State, 55 transfer the cause. 1 So-2d 559 (F1a.1955); Drakes v. State, 400 So-2d 487 (Fla. 5th DCA 1981). The deter- mination as to whether there was one or Wank J. Bankowitz, Orlando, for appel- two factual events is itself a question of lant. fact for the jury. Marcia Ramsdell, Orlando, for appellee. li AFFIRMED. COWART, Judge. ORFINGER and SHARP, ii., concur. Appellant properly sought review of a final decision of the Board of Commission- w ers of the Killarney Fire Control District by c S REYNUMBERSYSIN filing a petition for review of the decision T within thirty days of its rendition. See § 120.68(2), Fla.Stat. (1979); F1a.R.App.P. 9.110. Appellant erred, however, in filing Daniel Q ROSS, Jr., Appellant, the petition with the circuit court and not this court. Florida Rule of Appellate Pro- v' cedure 9.040(b) provides that "if a proceed- KILLARNEY FIRE DEPARTMENT in is Chief Robert Illyes, and the Board of that co commenced shall dtra sferatherocause to a n x s. Commissioners of the Killarney Fire appropriate court." The circuit court dins- Control District, Appellees. missed the petition, when it should have No. 81-1091. transferred it to this court. The order dis- District Court of Appeal of Florida, missing the petition is reversed and the Fifth District. clerk of the circuit court is directed to May 12, 1982. transfer the cause to this court. REVERSED WITH DIRECTIONS. S Plaintiff filed petition seeking review COBB and FRANK D. UPCHURCH, Jr., of final decision of fire control district's JJ., concur. 1 16 Fla. 414 SOUTHERN REPORTER, 2d SERIES ing "intangible personal property, including board of commissioners. The Circuit Court, rights, privileges, interests, and claims." Orange County, B. C. Muszynski, J., dis- We answer appellant's question in the af- missed petition, and plaintiff appealed. firmative and hold that credit on a charge The District Court of Appeal, Cowart, J., account is property which may be the sub- held that plaintiff erred in filing petition ject of theft under Florida's omnibus theft for review in circuit court rather than in statute, section 812.014, Florida Statutes District Court of Appeal, but circuit court (1979). erred in dismissing the petition rather than [2-4) Appellant also contends that, at transferring it to District Court of Appeal, most, the evidence establishes two misde- and the dismissal order would be reversed meanors of petit theft rather than one felo- with directions to transfer the cause. ny of grand larceny. Appellant's argument Reversed with directions. is based on his assumption that the theft of the credit occurred and was completed be- fore the theft of the travel kit occurred and Courts X216 that the theft of the travel kit did not occur Plaintiff erred in filing petition in cir- until he left the store without paying for it. cuit court for review of a final decision of The crime of theft encompasses not only fire control district's board of commission- the completed theft but also the attempt to ers,rather than in District Court of Appeal, steal. § 812.014(1), F1a.Stat. (1979). but circuit court erred in dismissing the Therefore, the theft or attempted theft of petition rather than transferring it to Dis- multiple items,such as the credit and travel trict Court of Appeal, and the dismissal kit, at the same time and place, can consti- order would be reversed with directions to tute one theft. See Hearn v. State, 55 transfer the cause. SO-2d 559 (F1a.1955); Drakes v. State, 400 So-2d 487 (Fla. 5th DCA 1981). The deter- Frank J. Bankowitz, Orlando, for appel- mination as to whether there was one or lant. two factual events is itself a question of fact for the jury. Marcia Ramsdell, Orlando, for appellee. AFFIRMED. COWART, Judge. ORFINGER and SHARP, JJ., concur. Appellant properly sought review of a final decision of the Board of Commission w ers of the Killarney Fire Control District by a s KEY NUMBER SYSTEM filing a petition for review of the decision T within thirty days of its rendition. See § 120.68(2), F1a.Stat. (1979); Fla.R.App.P. 9.110. Appellant erred, however, in filing Daniel Q. ROSS, Jr., Appellant, the petition with the circuit court and not k this court. Florida Rule of Appellate Pro- v' cedure 9.040(b) provides that "if a proceed- KILLARNEY FIRE DEPARTMENT, ing is commenced in an inappropriate court, Chief Robert Illyes, and the Board of that court shall transfer the cause to an Commissioners of the Killarney Fire appropriate court." The circuit court dis- Control District, Appellees. missed the petition, when it should have No. 81-1091. transferred it to this court. The order dis- District Court of Appeal of Florida, missing the petition is reversed and the Fifth District. clerk of the circuit court is directed to May 12, 1982. transfer the cause to this court. REVERSED WITH DIRECTIONS. Plaintiff filed petition seeking review COBB and FRANK D. UPCHURCH, Jr., of final decision of fire control district's JJ., concur. IN LAMPKIN-ASAM v. DISTRICT COURT OF APPEAL Fla. 469 Cite as,Fla.,364 Sold 469 [3] Therefore, the trial court erred in tioner's appeal, notwithstanding enactment h ` � holding that there were no disputed issues of rule of appellate procedure providing a.F3�, ° x�r•' � L•'--� of material fact. And our Vining decision that if proceeding is commenced in an ina filed since the time of the trial courts ac- propriate court that court shall transfer tion, compels reversal of its implicit holding cause to an appropriate court. that, since it appeared the,car was driven Petition denied and order to show cause Ra°z without permission, there could be no liabil- ., quashed. ' b �k 3 ity on the part of the person or persons having ownership or control. a The decision of the district court is ` 1. Courts X483 •j`' : . , .�� quashed and it is directed that the cause be Promulgation of rule of appellate proce- A fi t �{ remanded to the trial court for proceedings l dure providing that if proceeding is com- consistent with this opinion. menced in an inappropriate court that court It is so ordered. shall transfer cause to an appropriate court in no way altered meaning or effect ofYr.n ENGLAND, C. J., and ADKINS, BOYD, appellate rule governing situation where ' ' HATCHETT and ALDERMAN,JJ., concur- jurisdiction of.appellate court has been im- properly invoked on cases construing latter i•i� �_�� 4:. w rule except as stated in committee notes 0 3 KEY NUMBERSYSTEM with respect to results reached in two cases ° n axe T involving petitions for writs of certiorari: 32 West's F.S.A. Florida Rules of Appellate j!% e 4' °X- Procedure rule 9.040(b)• 32 t W e.s ; as F.S.A. SF 121 Florida Appellate Rules, rule 2.1, subd. a(5)(d) Julia McCain LAMPKIN—ASAIVI, "' ) y � ". 2. Appeal and Error e-430(1) Petitioner, Where petitioner sought to appeal ad- V. verse judgment by mailing notice of appeal DISTRICT COURT OF APPEAL, Third on April 5, 1978, two days prior to 30-day District, Respondent jurisdictional time limit, but where notice - r No. 54134. was inadvertently sent to District Court of -: �;_�:• ..- ,1} Su reme Court of Florida. Appeal rather than to circuit court and t " ., _ P where, upon receipt, clerk of District Court mailed notice to clerk of circuit court who Nov. 9, 1978. ,�-'�`• � '��: in turn filed notice on April 14, 1978, un- timely filing of notice of a al constituted vi �• _ Petitioner, whose attempted appeal of jurisdictional defect depriving district court adverse judgment was dismissed as not of jurisdiction to entertain petitioner's ap- timely filed, filed petition for writ of man- peal. 32 West's F.S.A. Florida Rules of 3Y3. damus, challenging dismissal. The Su- Appellate Procedure rules 9.040(b) preme Court, Sundberg, J., held that where 9.110(b); 32 West's F.S.A. Florida Appellate petitioner sought to appeal adverse judg- Rules, rule 2.1, subd. a(5)(d). ment by mailing notice of appeal two days prior to 30-day jurisdictional time limit but where notice was inadvertently sent to Dis- Tobias Simon, Miami, and Andrew A. trict Court of Appeal rather than to circuit ,, court and was therefore not timely filed, Graham and Joan H. Bickerstaff, Cocoa, for untimely filing of notice of appeal consti- petitioner. tuted jurisdictional defect depriving Dis- S. Harold Skolnick, Miami, for respon- a - trict Court of jurisdiction to entertain peti- dent. = ' M-Cases 364-365 Sold—! :r- r.s, 470 Fla. 364 SOUTHERN REPORTER, 2d SERIES SUNDBERG, Justice. [1,21 We cannot agree with this conten-. By petition for writ of mandamus, we are tion. Florida Rule of Appellate Procedure asked to determine whether Florida Rule of 9.040(b) in no way altered the meaning or Appellate Procedure 9.040(b), the 1977 revi- effect of Rule 2.1 a.(5xd) or the cases con- sion of Florida Appellate Rule 2.1 a.(5)(d), struing it except as stated in the committee notes with respect to the results reached in alters the result reached in Southeast Fiat Nellen v. State, 226 So.2d 354 (Fla.lst DCA National Bank of Miami v. Herin, 357 So.2d 1969), and Engel v. City of North Miami, 716(F1a.1978).1 In that case this Court held 115 So.2d 1 (F1a.1959), which have no appli- that the failure to file timely a notice of cation here. Hence Southeast First Nation- appeal in the lower tribunal deprived the al Bank, Diamond Berk Insurance Agency, appellate court of jurisdiction, even though and Hatcher, supra, are dispositive of the the notice was filed in an otherwise timely issue before us. fashion but in the district court of appeal. The reasoning of the late Mr. Justice We have jurisdiction pursuant to Article V, Drew in Southeast First National Bank, Section 3(b)(5), Florida Constitution. supra, ably demonstrates why Florida Rule Petitioner was the plaintiff in a libel ac- of Appellate Procedure 9.040(b) is inapplica- tion in the Circuit Court of Dade County. ble to this case: On March 8, 1978, the trial court entered a This rule was designed to permit the final judgment in favor of one of the three transfer of cases where the appeal is tak- defendants. en to the wrong appellate court. For Thereafter, petitioner sought to appeal instance, where an appeal in a bond vali- the adverse judgment by mailing a notice of dation proceeding is taken to the District appeal on April 5, 1978, two days prior to Court of Appeal instead of to the Su- �°` the thirty-day jurisdictional time limit.2 ease reme Court or where an appeal in a case where the death penalty has been However, the notice was inadvertently sent to the District Court of Appeal, Third Dis- imposed is taken to the District Court trict, rather than to the Circuit Court of instead of the Supreme Court, or where Dade County. Upon receipt the clerk of an appeal where life imprisonment has the district court mailed the notice to the been imposed is taken.to this Court in clerk of the circuit court who in turn filed stead of the District Court. There are :. also instances where jurisdiction depends ILI, . the notice on April 14, 1978. On April 19, on whether the trial court directly passed .15 1978, the District Court of Appeal, Third on the validity or constitutionality of a 1' District, dismissed the appeal as not timely statute. Where it is determined that the filed. jurisdiction of the wrong court has been Petitioner maintains that Florida Rule of invoked, the rule, and the constitution, as Appellate Procedure 9.040(b) supersedes amended, provide for such transfer. The Florida Appellate Rule 2.1 a.(5)(d) and the necessity for such a rule was the result of rationale underlying Southeast First Na- the creation of the District Courts of tional Bank v. Herin, supra, State ex rel. Appeal in Revised Article V of the Flori- o' Diamond Berk Insurance Agency, Inc. v. da Constitution in 1957, and the pro- Carroll, supra, and In re Estate of Hatcher, scribed [sic] jurisdiction of the courts of supra. It is argued that Rule 2.1 was the appellate system in the constitution. broadened in the new rules so as to protect 357 So.2d at 717-718 (citations omitted). from dismissal notices which are filed in the Inasmuch as the transfer provision of Flori- ti4 wrong court. da Rule of Appellate Procedure 9.040(b) 1. The Court in Southeast reaffirmed the hold- 2. Fla.R.App.P. 9.110(b). ings in State ex rel. Diamond Berk Insurance Agency, Inc. v. Carroll, 102 So.2d 129 (Fla. 1958),and In re Estate of Hatcher,270 So.2d 45 (Fla.lst DCA 1972). s. qtl { <a IN RE RULES OF FLORIDA JUDICIAL QUALIFICATIONS Fla. 471 frn Cite as,Fla.,364 So.2d 471 does not apply herein the untimely filing of the notice of appeal constitutes a jurisdic- In re RULES OF the FLORIDA tional defect depriving the district court of JUDICIAL QUALIFICATIONS jurisdiction to entertain petitioner's appeal: COMMISSION. [T]he timely filing of a notice of appeal No. 54626. at the place required by the rules is es- sential to confer jurisdiction on the appel- Supreme Court of Florida. ,y late court. - Nov. 9 1978. ' i e?rs 3 R • Case of Original Jurisdiction. 1 Woodrow M. Melvin Tallahassee Chair- A court has no power to act in the ab- sence of a urisdictional. foundation for man, for State of Florida Judicial Qualifica- 106 ;+ the exercise of the power. tions Commission, petitioner. �'', t r�Y ° State ex rel. Diamond Berk Insurance PER CLRIAM. Agency, Inc. v. Carroll, 102 So.2d at 130, 131. The Florida Judicial Qualifications Com- mission has filed with the Court a copy of ,: 5y Had there been any intent by adoption of its amended rules of procedure, as adopted 11°;' s ' the new appellate rules to authorize indis- by the Commission on May 26, 1978. Pur- ,r'` criminate filing of notices of appeal .in any suant to Article V, Section 12(d) of the tribunal Florida Rule of Appellate Proce- PPe Florida Constitution, this Court may repeal ,; �,; •?:.;��_- =�_ dure 9.110(b).would not provide that juris- these rules, or any part thereof, so long as diction of an appellate court shall be in- five Justices concur in that action. voked by filing a notice "with the clerk of We have thoroughly reviewed the rules ' the lower tribunal."s and now repeal Rules 22(a) and .(b) in their �� �` „�x There being no legal basis for the relief entirety. These provisions directly conflict ' sought, the petition for writ of mandamus with Rule 9.520(b) of the Florida Rules of � _ n is hereby enied, and the order to show vt y Appellate Procedure, as promulgated by cause heretofore issued is quashed. this Court effective March 1 1978,* whichr `». Ali prescribes the procedure to.be followed in It is so ordered. P P •�_`- �,� �������..�,�� this Court upon the filing of a recommenda- tion by the Commission. While the Com- ADKINS, Acting C. J., and BOYD, 1 mission is vested with the authority to HATCHETT and ALDER- adopt OVERTON, adopt rules regulating its proceedings" un- MAN, JJ., concur. der Article V Section 12(d) of the Constitu- tion, it is clear that these provisions, by E purporting to establish procedures govern- ing our review of Commission proceedings, w exceed that lawful authority and intrude o E T KEY NUMBER SYSTEM upon this Court's exclusive power to "adopt rules for the practice and procedure in all 1b' ` > courts" pursuant to Article V, Section 2(a). �" fi R5, It is so ordered. 3. Fla.R.App.P. 9.110(b) provides: note that subsection(a)is identical.to the Com- mission's former Rule 23(a), which we ap- w "Jurisdiction of the court under this rule roved in In re Rules of the Florida Judicial " shall be invoked by filing two copies of a A `, notice, accompanied by filing fees prescribed Q ualifications Commission, 346 So.2d 70 (Fla. by law, with the clerk of the .lower tribunal 1977). At that time, however, this Court had r-> within 30 days of rendition of the order,to be not officially adopted any procedural rule to govern such proceedings. and thus there was reviewed." g p g •.r'�".g„�"'' :�.-� v. 'FIa.R.App.P. 9.010; see also In re Proposed no conflict of the kind that now exists. Appellate Rules, 351 So.2d 981 (F1a.1977). We '` ':w2`:*,_,:��,i' ; !",.,,,.•rur�r-,, �,.y., •°-F.i:''ti S�.= Yf�' t fir. �s2.rr j-7 -t. t, r7, _.__..... .._..M.--. t'Ai'�i5rx, '"'arsi'i°.:r.`l� � '" a'a'=•cm..rure�+'�.+.,�+'��.Y:��`f.��fbR�Y�G ��iL�a�S:x.-atY�"�.r �.iedf�`,drtFr.8LS3::1:.'LC�}ed"r.�'•,i !'•3. c �y #�3.e t wry_ t i�"•x��d� y�+2. r r:. LAMPKIN-ASAM v. DISTRICT COURT OF APPEAL Fla. 469 Cite as,Fla.,364 Sold 469 [3] Therefore, the trial court erred in tioner r s appeal, notwithstanding enactment T - `Z . holding that there were no disputed issues of rule of appellate procedure providing of material fact. And our Vining decision, that if proceeding is commenced in an inap- filed since_ the time of the trial court's ac- propriate court, that court shall transfer s°• A �� �.->: tion, compels reversal of its implicit holding cause to an appropriate court. t .that, since it appeared the car was driven :a, . permission, Petition denied and order to show cause. without there could be no liabil- sl it on the part of the quashed. y person or persons having ownership or control. �� '' •� The decision of the district court is quashed and it is directed that the cause be 1. Courts a-483 '¢t Promul ation of rule of appellate rote- 8:.-FL ti `?; ` remanded to the trial court for proceedings g pp p .,, �, . .,•s�.; '.. consistent with this opinion. dure providing that if proceeding is com- menced in an inappropriate court that court It is so ordered. shall transfer cause to an appropriate court in no way altered meaning or effect of ENGLAND, C. J., and ADKINS, BOYD, appellate 4 ate rule governing situation where t•:�Y, r HATCHETT and ALDERMAN,JJ., concur. jurisdiction of appellate court has been im- properly invoked on cases construing latter w rule except as stated in committee notes o SKEYNUMBERSYSIEM with respect to results reached in two cases involving petitions for writs of certiorari. '` 32 West' s i T s F.S.A. Florida Rules of Appellate Procedure, rule 9 .040(b); 32 West's F.S.A. Florida . Appellate Rules, rule 2.1, subd. 1J � Julia McCain LAMPKIN-ASAM, Petitioner, 2. Appeal and Error 0 430(1) .����.� ��,•• Where petitioner sought to appeal ad- v. verse judgment by mailing notice of appeal i. `,�,*��,;, � • DISTRICT COURT OF APPEAL, Third on April 5,.1978, two days prior.to 30-day District, Respondent. jurisdictional time limit, but where notice _ + ' No. 54134. was inadvertently sent to District Court of Appeal rather than to circuit court d Supreme Court of Florida. an where, upon receipt, clerk of District Court Nov. 9, 1978. mailed notice to clerk of circuit court, who in turn filed notice on April 14, 1978, un- timely filing of notice of appeal constituted Petitioner, whose attempted appeal of jurisdictional defect depriving district court ,adverse judgment was dismissed as not of jurisdiction to entertain petitioner's ap- its �� •?;�;<.'�;�;• ��:�.:: timely filed, filed petition for writ of man- peal. 32 West's F.S.A. Florida Rules of � •<;::''h����;r�.'": damns, challenging dismissal. The Su- Appellate Procedure rules 9.040(b) " > , c 'jx. x`Y'%Yrie'3 r'C'.7'�jC JnF preme Court, Sundberg, J., held that where 9.110(b); 32 West's F.S.A. Florida Appellate r petitioner sought to appeal adverse J ud g- Rules, rule 2.1, subd. a{5)(d). ment by, mailing notice of appeal two days prior to-30-.,day jurisdictional time limit but where notice was inadvertently sent to Dis- trict Court of Appeal rather than to circuit Tobias Simon, Miami, and Andrew A. Graham and Joan H. Bickerstaff, Cocoa for court and was therefore. not timely filed, , , untimely filing of notice of appeal consti- Petitioner. tuted jurisdictional defect depriving Dis- S. Harold Skolnick, Miami, for respon- trict Court of jurisdiction to entertain peti- dent. Fla.Cases 364-365 Sold---4 I•• { `Y SS �c 470 Fla. 364 SOUTHERN REPORTER, 2d SERIES SUNDBERG, Justice. [1,2] We cannot agree with this conten-. By petition for writ of mandamus, we are tion. Florida Rule of Appellate Procedure asked to determine whether Florida Rule of 9.040(b) in no way altered the meaning or Appellate Procedure 9.040(b), the 1977 revi- effect of Rule 2.1 a.(5xd) or the cases con- struing it except as stated in the committee y sion of Florida Appellate Rule 2.1 a.(5)(d), notes with respect to the results reached in alters the result reached in Southeast First Nellen v. State, 226 So.2d 354 (Fla.lst DCA National Bank of Miami v. Herin, 357 So.2d 1969), and Engel v. City of North Miami, 716(F1a.1978).1 In that case this Court held 115 So.2d 1 (F1a.1959), which have no appli- that the failure to file timely a notice of cation here. Hence Southeast First Nation- appeal in the lower tribunal deprived the al Bank, Diamond Berk Insurance Agency, appellate court of jurisdiction, even though and Hatcher, supra, are dispositive of the the notice was filed in an otherwise timely issue before us.. fashion but in the district court of appeal. The reasoning of the late Mr. Justice We have jurisdiction pursuant to Article V, Drew in Southeast First National Bank, Section 3(b)(5), Florida Constitution. supra, ably demonstrates why Florida Rule Petitioner was the plaintiff in a libel ac- of Appellate Procedure 9.040(b) is inapplica- tion in the Circuit Court of Dade County. ble to this case: On March 8, 1978, the trial court entered a This rule was designed to permit the final judgment in favor of one of the three transfer of cases where the appeal is tak- defendants. en to the wrong appellate court. For Thereafter, petitioner sought to appeal instance, where an appeal in a bond vali- dation proceeding is taken to the District ! the adverse judgment by mailing a notice of j. appeal on April 5, 1978, two days prior to Court of Appeal instead of to the Su- the thirty-day jurisdictional time limits preme Court, or where an appeal in a However, the notice was inadvertently sent case where the death penalty has been to the District Court of Appeal, Third Dis- imposed is taken to the District Court trict, rather than to the Circuit Court of instead of the Supreme Court, or where an appeal where life imprisonment has Dade County. Upon receipt the clerk of been imposed is taken to this Court in- !. the district court mailed the notice to the i stead of the District Court. There are clerk of the circuit court, who in turn filed also instances where jurisdiction depends the notice on April 14, 1978. On April 19, on whether the trial court directly passed I 1978 the District Court of Appeal Third on the validity or constitutionality of a ` District, dismissed the appeal as not timely statute. Where it is determined that the t. filed. jurisdiction of the wrong court has been �! Petitioner maintains that Florida Rule of invoked, the rule, and the constitution, as Appellate Procedure 9.040(b) supersedes amended, provide for such transfer. The Florida Appellate Rule 2.1 a.(5)(d) and the necessity for such a rule was the result of rationale underlying Southeast First Na- the creation of the District Courts of tional Bank v. Herin, supra, State ex rel. Appeal in Revised Article V of the Flori- Diamond Berk Insurance Agency, Inc. v. da Constitution in 1957, and the pro- Carroll, supra, and In re Estate of Hatcher, scribed [sic] jurisdiction of the courts of supra. It is argued that Rule 2.1 was the appellate system in the constitution. broadened in the new rules so as to protect 357 So.2d at 717-718 (citations.omitted). from dismissal notices which are filed in the Inasmuch as the transfer provision of Flori- wrong court. da Rule of Appellate Procedure 9.040(b) 1. The Court in Southeast reaffirmed the hold- 2. Fla.R.App.P. 9.110(b). ings in State ex rel. Diamond Berk Insurance Agency, Inc. v. Carroll, 102 So.2d 129 (Fla. E 1958),and In re Estate of Hatcher,270 So.2d 45 (Fla.lst DCA 1972). ,,� '�- �.. ..:. -- y .:-"+ •`;." '" ♦ .-- Y .. �'; .i ... • r a.un iuu.lfieif.'b.-__.... . .-.v..-...�.<..._... .. y 't . ' _CSC• �,(,'i1�Y:u� .{'t51�•"e�,ye�•. IN RE RULES OF FLORIDA JUDICIAL QUALIFICATIONS Fla. 471 Cite as,Fla.,364 So.2d 471 �r4 does not apply herein, the untimely filing of z d the notice of appeal constitutes a jurisdic- In re RULES OF the FLORIDA tional defect depriving the district court of JUDICIAL QUALIFICATIONS jurisdiction to entertain petitioner's appeal: COMMISSION. [T]he timely filing of a notice of appeal No. 54626. at the place required by the rules is es- sential to confer jurisdiction on the appel- late court. Nov. 9, 1978. n Case of Original Jurisdiction. g' 4 A court has no power to act in the ab- man, e of M. Melvin, Tallahassee, Chair- ' for State Florida Judicial Qualifica- if sence of a jurisdictional foundation for tions Commission petitioner. the exercise of the power. � State ex rel. Diamond Berk Insurance PER CURIAM. Agency, Inc. v. Carroll, 102 So.2d at 130, The Florida Judicial Qualifications Com- 131. . x., mission has filed with the Court a co of fi Had there been an intent b adoption of PY Y Y P its amended rules of procedure, as adopted the new appellate rules to authorize indis- by the Commission on May 26, 1978. Pur- s criminate filing of notices of appeal in any suant to Article V, Section 1 d of the ¢ ' 'i �,w ;' 2( ) ;•, sv tribunal, Florida Rule of Appellate Proce- A , PPe Florida Constitution, this Court may repeal dure 9.110(b) would not provide that juris- these rules, or any part thereof, so long as A diction of an appellate court shall be in- PPe five Justices concur in that action. yoked by filing a notice with the clerk of *: the lower tribunal."s We have thoroughly reviewed the rules ' and now repeal Rules 22(a) and (b) in their k 7 ? There being no legal basis for the relief entirety. These provisions directly conflict sought, the petition for writ of mandamus with Rule 9.520(b) of the Florida Rules of is hereby denied, and the order to show Appellate Procedure, as promulgated by (,F cause heretofore issued is quashed. this Court effective March 1 1978,* which (u. ' prescribes the procedure to.be followed in It is so ordered. P P this Court upon the filing of a recommenda- tion by the Commission. While the Com- ADKINS, Acting C. J., and BOYD, mission is vested with the authority to OVERTON, HATCHETT and ALDER- adopt rules regulating its proceedings" un- MAN, JJ., concur. 1" ; der Article V, Section 12(d) of the Constitu- tion, it is clear that these provisions, by purporting to establish procedures govern- ing our review of Commission proceedings, W exceed that lawful authority and intrude t 3 KEY NUMBERSYSTEM , „ T upon this Courts exclusive power to adopt f rules for the practice and procedure in all courts" pursuant to Article V Section 2(a). It is so ordered. : ' 3. Fla.R.App.P. 9.110(b) provides: note that subsection(a)is identical.to the Corn- "Jurisdiction of the court under this rule mission's former Rule 23(a), which we ap- shall be invoked by filing two copies of a proved in In re Rules of the Florida Judicial aft notice, accompanied by filing fees prescribed Qualifications Commission, 346 So.2d 70 (Fla. .. by law, with the clerk of the lower tribunal 1977). At that time, however, this Court had within 30 days of rendition of the order to be not officially adopted any procedural rule to S. F ' reviewed." govern such proceedings• and thus there was 'Fla.R.App.P. 9.010; see also In re Proposed no conflict of the kind that now exists. Appellate Rules, 351 So.2d 981 (Fla.1977). We . t. ,. �•`�' -x`^'fit'_--- - t� f � { i ' 4 4 ` f March 1991 S M T W T F S 1 2 3 4 5 6 7 8 9 i 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 19 31 EtrerReedye E717 by Keith Clark • f i February 1991 April 1991 S M T W T F S S M T W T F S 3 4 5 6 7 8 9 7 8 9 10 11 12 13 i 10 11 12 13 14 15 16 14 15 16 17 18 19 20 17 18 19 20 21 22 23 21 22 23 24 25 26 27 24 25 26 27 28 28 29 30 If 078 Tuesday, March 19 287 i 1 � L 1 °jlt��3ElS7R1ES!°; y,. -tea" )y_�.;"s�,�':•� t.. " MARIE D. VALENTI, ' .:''Y' IN THE CIRCUIT COURT OF THE 11th JUDICIAL°- CIRCUTT IN Plainti AND FOR DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION VS. CASE NO. 91 - 11780 CA 09 CITY OF SOUTH' MIAMI CODE ENFORCEMENT BOARD, MOTION TO DISMISS Defendant. (1034 0) The Defendant, CITY OF SOUTH MIAMI , 'by -and through its undersigned counsel. files this Motion to Dismiss pursuant to Fla. R. Civ. P. 1. 140 and in support thereof says as follows: 1. failure_to_attach_instruments: a. Fla. R. Civ. P. 1. 130 (a) provides "all documents upon which an action may be brought „r :a copy thereof shall be incorporated in or attached' to the pleading" . b. Plaintiff would appeal an ,Order entered at•''a Cede Enforcement Board Meeting of February 14; 1'' 91 (see paragraph 11 of the Complaint) ; however, no copy of that Order is attached to the'. Complaint as an Exhibit. 'If the Order were available, it would clarify the limitation of the Flo�"da Statutes with 'regard to an appeal of the Order and clarify the Court' s lack of .jurisdiction over subject matter. 2. lack._of_.1urisdiction_of_the_sub;1ect- matter: a. Paragraph 3 of the Complaint alleges this Court' has .jurisdiction pursuant to Flbrid'a' Statute 162. 11 . That section, in relevant part, provides-. City-of :South Miami month 'of -February, 19911, ' pa a t t Date- Service Time 02/19/91 Review and revise proposed Tree Committee Ordinance; . 2 Attendance at City Council Meeting 5. 0 5. 2 02/20/91 Conference with Clerk re : Agenda of 02/19/91; . . 5 Conference with Mayor re : status of cases; . 3 Conference with manager, head of Bldg. Zoning and. Commissioner .Cooper, re : proposed Small Restaurant Ordinance and Convenience Store: - Accessory Use Ordinance . 75 1. 55 02/21/91 . Telephone conferences with Juan Artigas and Atty. Ken Carusello re : Patterson v. The Doggie Den; , . 5 , Draft and prepare Resolution for >> . Recreation Department, re :, athletic equipment; .2 Draft and ,prepare Ordinance...re :. mobile automobile wash/wax service; . 3 Draft and -prepare. Ordinance, regarding small restaurants; . 4 Dictate letter to Gregory Borgognoni re.: Comprehensive Plan Cases; . 2 Facsimile correspondence with Neil Carve.r .,,re : .,02/19/91 ,Agenda y .2 1. 8 02/22/91 First draft • of Convenience Store - . - Accessory Use Ordinance; . 2 Review of Documents.,re : Strickland; 2 Telephone conference with Bill Mackey ; r-a : . Strickland- documents; y .r I ,,,'. _. �-, .1 Telephone conference Bill Mackey re : interpretation. of advertising _ requirements; ,1 Telephone conference with Clerk re: 03/05/91 Agenda; . 2 Review and file Complaint re : Chamber of. Comm.erce . 3 1.. 1 02/25/91 Telephone conference City Manager r-e : Purchase. R'e,solution; .1 Telephone conference with Mayor and City Clerk r.e :,. Satellite Ordinance; , 2 Review and revise Memorandum re : Mandelstam; , 3 ' Draft and prepare Ordinance re : Amendment for New/Unlisted Uses . 4 1,0 ^ ' Appeals. - An aggrieved party . . . may appeal a final ' , administrative order of an enforcement board to' the _ - circuit court. Such_a[Lappp:Ejl_shall not_be_a_hearin_q_dg novo but shall be ^ ^ ^ ^ _ . _ . . ` [emphasis added]. . ' b. Plaintiff has not filed 'an appe'al to the Appellate Division of the Circuit Court; Plaintiff h ' .,filed an original action for . .. . . , t in' ths' ���er�l' J` �isd�ct�on 'Division declaratory judgmen ~~ � u . ~ ^. - 3^ estoopgl/li[Dita : ^ . a. Florida Statute 162'. 11 also provides the "appeal shall be , . filed within 30 days of the execution of the order to be appealed. " ^ . ' b. The Order which Plaintiff would appeal was made on February . ` 14, 1991 and- 'exec'u'ted on February 15, ' 1991. Plaintiff dated the Complaint Mar.ch 18, .1991 and obtained issuance of the Summons March 19 - thus beyond t'he 3(Y day' '' iod in the Statute~ ' WHEREFORE/ and in view Of the foregoing, the Defendant moves to dismiss the Complaint for lack- bf ' j'urisdi' tion and for failure to bring the action with the statutory period. ` I HEREBY CERTIFY that �a true� and correct co - '(»f the foregoing . Motion to Dismiss was mailed toAmado Alan Alvarez, Esq. , Attorney for Plaintiffs, Jo` ge' .. ' La Osa` ' P. ' . , Marina Lakes Business . ' 2 City of South Miami month of February, s1991 page three Date Service Time 02/14/91 Attendance at Code Enforcement Board meeting; 3 . 0 Telephone conference with Jock Mitchell re : Toledo; . 2 Telephone conference with Maria . Carreras re : Delia Martinez; . 1 Correspondence and communication with S elia Goudarzi and Rosemary Was.- ra re : Planning, Board Agenda; . 7.5 Telephone conference with Carter McDowell re : Anthony Abraham . 3 4 . 35 02/15/91 Correspondence and communication with City Clerk re : Agenda of 02/19/91, including Austin,: Shay, fireworks, and Tree Committee Ordinances/ Resolutions;,, 1. 0 Conference with Bill Enright, Alan Gold, and City Manager re : SM Hospital; . 6 Telephone conference with Ramon Gonzalez re: Shay . 2 1 . 8 02/18/9{1 Review of Agenda for 02/19/91, including telephone conferences with City. Clerk; . 5 Telephone conference Sonia Lama re : over-occupied house; . , . .-I , s , 2 Review and revise Therapists Ordinance; . 2 Review and revise Reply Memorandum , , re : Mandelstam; , 3 Telephone conference with Stan Toledo; . 2 Telephone conference with Mayor McCann re : Toledo , 1 Dictate Resolution re :: deferred compensation , 2 1 , 7' 02./19/91 Telephone conference with Sonia Lama re : City's jurisdiction vis-a-vis dispute between contractor, and developer.; .2 , Re-draft Memorandum re : Mandelstam; . 3 Telephone conference with Mayor re : Toledo Resolution; ,1 Telephone conference with Dorian f re : Southern Bell; , 2 Review correspondence re : Southern Bell; . 2 Telephone conference with Vice-Mayor re : Car Wash/Wax Ordinance; ..1 Review and revise draft of Memorandum in Opposition to Motion for Atty. fees re : Mandelstam . 3 1. Q r Pare, 4560 S. W. 72nd Avenue, Suite 403, Miami, Florida 33155, this ......th day of April , 1951. MARTIN DAVID BERG,-P.A.��YrM__ Attorney for Defendant City of` South Miami 15 West Flaaler Street Suite 802, Biscayne Bldg. Miami, Florida 33130 Telephone: (305) 371 -1631 3 Citv of South Miami month of February. 1991 oage three Date Service Time 02/14/91 Attendance at Code Enforcement Board meeting; 3 . 0 ;Telephone conference with Jock Mitchell re :, T-oledoi . 2 Telephone conference with Maria Carr.eras ,r.e,.: ,Delia Martinez; . 1 Correspondence and communication wi-th Soheia Goudarzi and Rosemary Wascura- re : Planning Board Agenda; . 75 Telephone conference with Carter McDowell re : Anthonv Abraham . 3 4 . 35 02/15/91 Correspondence and communication with Citv Clerk re : Agenda of 02/19/91,, including Austin. Shay, fireworks, and Tree Committee Ordinances/ Resolutions; 1 . 0 Conference with Bill Enright, Alan Gold, and Citv Manager re : SM Hospital ; . 6 Telephone conference with Ramon Gonzalez re : Shav . 2 1 . 8 02/18/91 Review of Agenda for 02/19/91, including telephone conferences with City Clerk; . 5 Telephone conference Sonia Lama re : over-occupied house; . 2 Review and revise Therapists Ordinance; . 2 Review and revise Reply Memorandum re : Mandelstami . 3 Telephone conference with Stan Toledo; . 2 Telephone conference with Mayor McCann re : Toledo , 1 Dictate Resolution re : deferred compensation . 2 1 , 7 02/19/91 Telephone conference with Sonia Lama re : Citv's jurisdiction vis-a-vis dispute between contractor and developer; . 2 Re-draft Memorandum re : Mandelstam; . 3 Telephone conference with Mavor re : Toledo Resolution; . 1 Telephone conference with Dorian Demburg re : Southern Bell; , 2 Review correspondence re : Southern Bell; . 2 Telephone conference with Vice-Mavor re : Car Wash/Wax Ordinance; . 1 Review and revise draft of Memorandum in Opposition to Motion for Att_v, fees re : Mandelstam . 3 1 . 4 j Florida League of Cities, Inc. Florida League of Cities, Inc. 201 West Park Avenue Public Risk Services Post Office Box 1757 135 East Colonial Drive Tallahassee, FL 32302-1757 Post Office Box 530065 Telephone (904) 222-9684 Orlando, FL 32853-0065 Suncom 278-5331 fDFWRIDA1E4QW0FCMES Telephone (407) 425-9142 Suncom 344-6767 Reply to ® _ Reply to March 29, 1991 1 r�� CERTIFIED MAIL RETURN RECEIPT REQUESTED i��;Wrt9 G) IXJP,4-Rq P 2 8 2 6 9 4 6 3 4 Mr. John M. Corbliss Finance Director City of South Miami 6130 Sunset Drive South Miami, FL 33143 RE: MEMBER: City of South Miami DATE OF LOSS: July 31, 1990 PLAINTIFF: Marie D. Valenti CASE NUMBER: 91-11783 �- --Dad unty Circuit Court AGREEMENT NUMBER: FML - 293 Dear Mr. Corbliss: We are in receipt of a Summons and Complaint filed against the City of South Miami which was served on March 20, 1991. The date of loss as noted above indicates this matter falls within the Liability Agreement between the City of South Miami and the Florida Municipal Liability Self Insurers Program for the fund year effective dates of October 1, 1989 through September 30, 1990. As such, that Agreement will be the basis for determining any coverage applicable to this matter. The Florida Municipal Liability Self Insurers Program now directs your attention to page six of that Agreement specifically, Section II . Coverage, which reads as follows: II. COVERAGE BODILY INJURY LIABILITY PROPERTY DAMAGE LIABILITY PERSONAL INJURY LIABILITY The program will pay all sums which a member becomes legally obligated to pay as damages because of: A. Bodily Injury or B. Property Damage or C. Personal Injury Florida Municipal Self Florida Municipal Florida Municipal Health Florida Municipal Pension Florida Municipal Insurers Fund(Workers' Liability Self Insurers Trust Fund Trust Fund Property Self Insurers Compensation) Program(Tort Liability) Program 1r Mr. John M. Corbliss March 29, 1991 Page Two to which this Agreement and any endorsements thereto apply caused by an occurrence which takes place during the period of this Agreement. We further direct your attention to page six of the Agreement, Section III. Defense and Settlement, which states the following: III. DEFENSE AND SETTLEMENT In addition to the limits of liability the Program will settle or defend at its own expense, as it considers appropriate, any claim or suit demanding money damages covered by the Agreement. The Program will defend any suit against a member which alleges a claim for money damages covered by this Agreement even if such suit is groundless, false or fraudulent. However, the Program has no duty to defend a member in any action which on its face alleges facts excluded or not covered by this agreement. Also forming a part of said Agreement is the Errors and Omissions Liability Endorsement (copy attached) which includes additional coverage. We call your attention to Paragraph II. We now refer you to said Complaint, page two, Declaratory Judgement and also to page four which reads: WHEREFORE, Plaintiff, MARIE D. VALENTI, hereby prays this Honorable Court enter a declaratory judgment providing: (i) that Defendant abused its discretion and exceeded its authority under Chapter 162, Florida Statutes, in connection with its Order of February 14, 1991, and (ii) that Defendant' s Order of February 14, 1991 is declared null and void, and shall have no effect upon the Plaintiff or her subject property. As this claim would fall under the Errors and Omissions Liability Endorsement, we refer you to said Endorsement specifically, paragraph C, subparagraph four, which reads: any claim demand or action seeking relief, or redress, in any form other than money damages, and any costs, fees, expenses or attorneys' fees relating to such claims. Based upon the Complaint as pled and based upon the exclusionary language as noted above, there would be no coverage for this matter under the Liability Agreement number FML-293 . As such, there would be no duty to defend this matter. We suggest you turn this over to your City Attorney immediately. 0 i% Mr. John M. Corbliss March 29, 1991 Page Three Should there be an Amended Complaint filed in this matter, we suggest you re-submit this to the Florida League of Cities for further review. Sincerely, Jon Morrison Director of Claims JM/db Enclosure ERRORS AND OMISSIONS UABIUTY ENDORSEMENT Sp t This endorsement issued by the Program extends and modifies the provisions of the Agreement relating to liability for Public Officials Errors and Omissions as set forth below: It is agreed that as of the effective date hereof, the Agreement is amended in the following particulars: 1. The Coverage section is amended to include the following additional coverage: COVERAGE D - ERRORS AND OMISSIONS LIABILITY 11. The Program will pay all sums a member becomes legally obligated to pay to any person other than a member by reason of 'Errors and Omissions' as defined in the agreement committed by a member acting in his official capacity which takes place during the period of this Agreement, subject to all terms, conditions, exclusions and limits of liability of the Agreement and this endorsement. Ill. The Definition Section is amended to include the following additional definitions which shag apply exclusively to this endorsement. A. Member for purposes of coverage under this endorsement shall not include any of the following individuals, boards, commissions, authorities, units or administrative departments or agencies of t. Scnools 2. Airports 3. Hospitals B. Official Capacity means the capacity of a member while lawfully acting for or on behalf of the designated member, or while lawfully acting in aid of the duties or functions which come within the scope of the member's employment by the designated member. IV. The exclusions Section of the Agreement is amended as follows for this endorsement: A. Exclusion J of the Agreement is amended to read: J. to bodily Injury or personal injury to any employee of the designated member arising out of and in the course of employment by* the designated member or to any obligation of a member to indemnify another because of damages arising out of such Injury: but this exclusion does not apply to Itabiilty assumed by the designated member under an Incidental 1 contract. B. Exclusion AA of the "gmement is deleted. C. The following additional exclusions are included for purposes of this endorsement only; and this endorsement does not apply to claims for Gabiiity as to any member arising out of the following: 1. based upon or atbnbutable to any member gaining in fact any persons profit or advantage to which such member was not legally entitled, Inducting remuneration paid In violation of law as determined by the courts; 2. brought about or contributed to by fraud, dishonesty. or bad faith of a member; however. notwithstanding the foregoing, the member shalt be protected under the terms of this Agreement as to any daims upon which suit may be brought against them by reason or any alleged fraud or dishonesty on the part of any member, uniess a judgment or other final 4mlicatlon thereof adverse to such member shall establish that ads of active or Ff-1 1 t L 1 y. INDL! STRIES i 3�v �. TEL 5-s �:;3-r313 I�lar %l _a1 16 i�2 hlr . :`Ci^ . � r CODE EXFORCEM BOARD CITY OF SOUTH MIAMI DADE COUNTY, FLORIDA QHQ Ole VTf%,r z rrn- VIOLATOR: FILE NOE CB-91-7 VIOLATION: Construction w/o a Permit. Sec. 301, S Fl Building Name: Marie D. Valenti, Code Street Address: 6865 SW 64 Street City: S. Miami. , Fl. 33143 TH15 CAUSE came before the Code Enforcement Board on the 14th day of February, 1991. The evidence leads to the following Findings of Fact: Construction w/o a permit It is 'HEREBY ORDERED AS FOLLOWS: � A FINE OF $75.00 PER DAY IS TO BEGIN ON. FEBRUARY 15, 1991 CONTINUING UNTIL COMPLIANCE IS MET. • DONE AND ORDERED this 14th day of FEBRUARY, I, r ATTEST.- f Co orcement Board Secretary ' cc: Exhibit "A" I 1� 1991-03-21 : 6 c 1 n E = C 4 MARTIN DAVID BERG, P. A. ATTORNEY AT LAW 19 WEST FLAGLER STREET SUITE 802,BISCAYNE BLDG. MIAMI,FLORIDA 33130 (305) 371-1631 March 140 1991 Richard J. Adams., Jr . , Esquire Jorge .L. De ha Osa; P.A. 496.0 S.W. 72. Avenue Suite 403 Miami,. Florida 33155 Re: Marie Valenti - Code Enforcement Board Dear Mr . Adams: Code Enforcement Officer David Walker, has forwarded me your letter dated March 1, 1991, received March 11, 1991 by the Building, Zoning and Community Development Department .of, City of South Miami, regarding, the capti.oned .appearance on February 14, 1991. The Code Enforcement Board does 'not agree that the building permit .. was wrongfully denied or that it is without authority to access a penalty for not having obtained a permit. A permit is available upon the same terms as _it is. to all other. G tizens. It is not availabie' to any citizen when the requested construction would be in violation of City Building Ordinances:: There are no appeals of the Code Enforcement Board 's. decision before the Code Enforcement Board . As 'indicated -at that meeting, any further action wou-ld be through the Cpurt system.. Very truly yours, MARTIN DAVID BERG MDB/vlz cc: Building, Zoning and Community Development MARTIN DAVID BERG, P .A. . Attornev At Law 19 West Flagler Street Suite 802, Biscayne Bldg. Miami, Florida 33130 ( 305) 371-1631 FACSIMILE TRANSMISSION PLEASE CALL ( 305) 371 - 1631 IF YOU DO NOT RECEIVE THE FOLLOWING TRANSMISSION IN ITS ENTIRETY OR IF YOU WISH TO SEND A TRANSMISSION. Date March 12, 1991 To Sonia Lama Director, Bldg. & Zoning City of South Miami Fax number called ( 305) 663 - 6353 Pages ( including this cover sheet) two Reference Marie Valenti - Code Enforcement Board Instructions/Comments Attached is a proposed response regarding the captioned matter . Please review and advise if any changes are needed/desireable . t TIRANSMISSSICIN REPCFT I 4. 4:1 r2 0 6 6 3 5 [I] TEL. NO. . . . . . . . . . . C F2j "4�'A M E . . . . . . . . . . . . T 3,1 P,4, 14.1 TIME . . . . . . . . . . . . . CO H 0 1 42 15 1 F,E'S'U L T . . . . . . . . . . . G3 Ol K TPPANSM T 7 c< March 12, 1991 Richard J . Adams, Jr . , Esquire Jorge L. De La Osa, P .A. 4960 S .W. 72 Avenue Suite 403 Miami, Florida 33155 Re : Marie Valenti - Code Enforcement Board Dear Mr . Adams : Code Enforcement Officer David Walker has forwarded me your letter _dated March 1, 1991, received March 11, 1991 by the Building, Zoning and Community Development Department of City of South Miami, regarding the captioned appearance on February 14, 1991 . The Code Enforcement Board does not agree that the building .permit was wrongfully denied or that it is without authority to access a penalty for not having obtained a permit. A permit is available upon the same terms as it is to all other citizens . It is not available to any citizen when the requested construction would be in violation of City Building Ordinances . There are no appeals of the Code Enforcement Board 's decision before the Code Enforcement Board . As indicated at that meeting, any further action would be through the Court system. Very truly yours, MARTIN DAVID BERG MDB/vlz cc: Building, Zoning and Community Development T r W,• 1 I t' CIF j ;l'"? TEL . . 05-�:'RF 5 f t�iar 1 i X31 1S lr� �{ ',� I.AW ITIRM OF Q t.G 1a. DE I:A OsA, P.A. 4060 S.W. 72 AVENUE SL71TG 403 MLmgj, FLORIDA 33185 JORGE I.. I3IL T.t. OSA TEL: 1303) 662-?343 RS(:fIRRU-) F. HCtNL)LA Vt mt, �5 :. '.March 1 r 1991 ` MR i ;3 Mr . David Walker P0 7 f`` Code Enforcement Officer South Miami Ciry Commission 6130 Sunset Drive S . Miami , F1 33143 RE: Request For Appeal Of__Cczd.e_Er4for-eement Board ' s T Decis-Con- - °At'"°-_gearing Of February 14, 1991/Marie Valenti/Section 331 , South Florida Building Code/Building Without A Permit . Subject Property : 6865 SW 64th Street , Lot 9 , Block 34 TRANQUILITY ESTATES , according to the Plat thereof rec �d Plat Book 78 , at Page 64 of the Public Records of Dade County, Florida Dear Mr . Walker : Marie Valenti hereby appeals the Code Enforcement Board ' s ,decision assessing penalties against her for alleged violation of Section 301 -'of the South Florida Building Code (building without a permit) . The City is without authority under both City Code and State Law l,to assess a running penalty against Ms . Valenti while at the same time wrongfully denying her issuance of a building permit . Ms . Valenti. ' s remodeling of the above-referenced property constitutes a permissible nonconformity under the Land Development Coder of South Miami . She diligently sought a building permit , but the City denied same without any basis . The Citv is without justification to assess a running penalty against Ms . Valenti for not having a building permit, while at the same time preventing her from obtaining same. Ms . Valenti will submit record of the February 14, 991 hearing as soon as the minutes of that hearing receive approval by the Board and become accessible. Vrs , 5RWiWard � Adams , Jr . Law Firm Of : r J Mr ,. David Walker ,Page 2 Jorge L. De La Osa , P .A. Attorneys for Marie Valenti RJA/JM WALKER. LTR Marie Valenti Sonia Lambs Martin D. Berg, Esq. C.I TY '7r 7'H^ C: MT TEL 305 r 63'� M 1 should the sign re-appear, Code Enforcement and the Board will view the matter very seriously and dealt with accordingly- Seconded by Ms.Larkin. Vote: Approved: 5 opposed: 0 7. Violation: Section 301 , south Florida Building Code Construction w/o a permit Location: 6865 SW 64 Street Owner: Marie D. Valenti ltd Richard Adams , co-counsel for Ms. Valenti signed in. Mr. Artigas reviewed the case history, stating that this violation has been running since April. 2 , 1990 without compliance. Ms. Valenti was denied a variance by the city commission on July 30 , 1990 to keep the addition which she had built into the setback and without a permit, in violation of the South Florida Building and South Miami Zoning Codes. Later, her attorney contacted the City stating that Ms. Valenti wanted to reach an accommodation with the City, Nothing has been done to reach compliance, so the property is still in violation as of this date , Ms . Valenti and her representatives presented the same information which had been submitted to the City at different times, none of which had been accepted as justification for not complying with City. Code. Mr. Adams stated that, in his opinion, Ms. Valenti 's appearance before this Board is premature inasmuch as there has not been proper notification. Ms. Valenti was denied a variance by the Commission and had requested an appeal. Mr. Adams stated that Ms. Valenti has reczived no answer to her request from the City. He, further, cited City Code which, in his opinion, 'allows all pending action against Ms. Valenti to stop until her appeal is heard. Mr. Baru stated that this hearing is to address the red tag and has nothing to do with the variance request. City Attorney Berg disagreed with Mr . Adams in his stated interpretation of City Clode dealing with appeals . Mr. Berg stated that this variance request was heard by the Commission which does not sit to review its owrl decisions. In effect, the appearance before the commission was an appeal because a variance , prior to coming to the City Commission goes to Planning , Planning makes a recommendation to approve or deny and then that decision goes to the city commission. The reason Ms. Valenti received no reply to her request for appeal is there is no basis upon which the City Commission can sit to review itself. The only recourse at this point would be court. The -tv CEB Agenda 4 1-10-91 "-ffTY �F 1-I I T LE 1 7,0 5 Z t,I 11. 9 1 1 C, P coi,nmission does no-,,,- re-he,,ar its own decisions. Today's matter deals only with the Violation, if , in fact there is a violation. in ,,-,-he opinion of this Board. No fines have been paid as of this d a I-e. No, effort has been made to comply with Code to this date either . Rev. Orjuna made a motion to find this case to be in ,violation of encroachment and imposes a f ine self executing of $75.00 per day beginning 02-15-91, running until compliance is, met. Seconde�`d by Ms. Glover. 'Vote,. Approvedt 5 Opposed: 0 Violation: Section 301 , South Florida Building Code Construction w/o a permit Location: 6761 SW 78 Terrace Owner*. David & Toril Farrar Mr . Farrar signed in. Mr. Artigas reviewed the case history. SIRIPB approval has been received. The permit has been prepared and is ready to be picked up. No fines have been paid. He does not want 4. 4-o pay the administrative fee and does not recognize the viola,-',ion f--,o believes there should be no fine. Mr. Basu rade a motion that the violation be corrected by 02-22-91 or a self executing f-Jhne- of $1-5.00 per day, will be imposed beginning on 02-23-91, running until coal ianoG is met. Second by Ms. Glover. Approved: 5 Opposed: 0 Violation: Section 20-3 .1 , South Miami Code of ordinances Renting rooms in a single family residen,"Clal district. Location: 6845 SW 64 Street Owner: Arlyne Bookbinder This itear. is now in compliance. 2-Q CEE Agenda 5 1-10-91. 1 5 : 31 F(A,G:- March 14, 1991 Richard J . Adams, Jr . , Esquire Jorge L. De La Osal P .A. 4960 S.W. 72 Avenue Suite 403 Miami, Florida 33155 Re: Marie Valenti - Code Enforcement Board Dear Mr . Adams: Code Enforcement Officer David Walker has forwarded me your letter dated March 1, 1991, received March 11, 1991 by the Building, Zoning and Community Development Department of City of South Miami, regarding the captioned appearance on February 14, 1991. ' The Code Enforcement Board does not' agree that the building permit was wrongfully. denied or that it is without authority to access a penalty for not having obtained a permit. A permit is available upon the same terms as it is to all other citizens . It is not available to any citizen when the requested construction would be in violation of City Building Ordinances. There are no appeals of the Code Enforcement Board 's decision before the Code Enforcement Board . As indicated at that meeting, any further action would be through the Court system. Very truly yours, MARTIN DAVID BERG MDB/vlz cc.* Building, Zoning and Community Development