CITY OF MIRAMAR, FLORIDA, APPELLANT,
v.
DCA HOMES, INC., F/K/A OAK HILL HOMES, INC., A FLORIDA CORPORATION AND BROWARD COUNTY PLANNING COUNCIL, APPELLEES
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The City of Miramar appealed a trial court order denying its motion to dismiss based on failure to exhaust administrative remedies. The appellate court dismissed the appeal as interlocutory, holding that the administrative remedies defense is a policy matter rather than a jurisdictional one, and therefore not appealable under the applicable rule.
The order denying the motion to dismiss is not appealable as an interlocutory order because the failure to exhaust administrative remedies defense is a matter of policy rather than jurisdiction, and therefore does not fall within the exceptions allowing interlocutory appeals.
[1] An order denying a motion to dismiss a complaint based on failure to exhaust administrative remedies is not an appealable non-final order under Rule 9.130(a)(3)(C), Flori…
[2] The defense of failure to exhaust administrative remedies implicates policy considerations rather than the court's jurisdiction over the person or the subject matter.
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Join FLexlaw to unlock all legal intelligence“The trial court's order denying appellant's motion to dismiss the complaint is not one of those non-final orders from which an interlocutory appeal is authorized by Rule 9.130(a)(3)(C), Florida Rules of Appellate Procedure.”
Establishes the core holding that the order is not appealable as an interlocutory matter.
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Join FLexlaw to unlock all legal intelligenceThe City of Miramar moved to dismiss a complaint filed by DCA Homes, Inc. and the Broward County Planning Council, arguing that the plaintiffs failed …
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[*153] PER CURIAM.
Appellees’ motion to dismiss this appeal is granted.
The trial court’s order denying appellant’s motion to dismiss the complaint is not one of those non-final orders from which an interlocutory appeal is authorized by Rule 9.130(a)(3)(C), Florida Rules of Appellate Procedure. The underlying motion to dismiss was based solely upon appellees’ failure to exhaust administrative remedies. Appellant’s contention that jurisdiction of the person is involved in the trial court’s determination of that motion is without merit. American Health Association, Inc. v. Heiprin, 357 So. 2d 204 (Fla. 4th DCA 1978).
Neither is jurisdiction over the subject matter, in the conventional sense of that phrase, involved here. The defense of failure to exhaust administrative remedies sounds more in policy than in jurisdiction. To be sure, the phrase primary jurisdiction has been employed to describe the seeming lack of power of a court to exercise jurisdiction where this defense is successfully interposed. Pushkin v. Lombard, 279 So. 2d 79 (Fla. 3rd DCA 1973); School Board of Leon County v. Mitchell, 346 So. 2d 562 (Fla. 1st DCA 1977).
However, we prefer the analysis and language of Jones v. Braxton, 379 So. 2d 115 (Fla. 1st DCA 1979) that what is involved in these cases is policy, not jurisdiction. Because the order did not involve either jurisdiction over the person, appealable under Rule 9.130(a)(3)(C), or jurisdiction over the cause, which may be raised at any stage of the proceedings, Bohlinger v. Higginbotham, 70 So. 2d 911 (Fla.1954), we dismiss the appeal without prejudice to the parties’ right to raise the issue on plenary appeal.
DOWNEY, HERSEY, and HURLEY, JJ., concur.
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Cited By
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Warner v. The City OF Miami, 490 So. 2d 1045 (Fla. 3d DCA 1986)…ry equity jurisdiction was not barred by plaintiff Warner’s failure to exhaust administrative remedies because (1) the failure-to-exhaust defense does not go to subject matter jurisdiction but to court policy, see City of Miramar v. DCA Homes, Inc., 385 So. 2d 152 (Fla. 4th DCA 1980); Jones v. Braxton, 379 So. 2d 115 (Fla. 1st DCA 1979), and (2) the record clearly shows that the administrative remedy could not have provided adequate or timely relief. See Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park…
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Ford Motor Co. v. Ward, 577 So. 2d 641 (Fla. 4th DCA 1991)…gly, the basis of our earlier reversal was the result of our being led into error by appellant’s main brief and by our failure to pick up on the belated, albeit candid, reference by appellant in its reply brief to City of Miramar v. DCA Homes, Inc., 385 So. 2d 152 (Fla. 4th DCA 1980), which predated Key Haven, but held substantially the same. Appellant not only stonewalled the consumer in this case, making it impossible for him to arbitrate, it had to eliminate a clerk’s default to be a litigator in the tria…
Authorities Cited
- The Sch. Bd. OF Leon Cnty. v. Mitchell, 346 So. 2d 562 (Fla. 1st DCA 1977)
- Pushkin v. Lombard, 279 So. 2d 79 (Fla. 3d DCA 1973)
- Bohlinger v. Higginbotham, 70 So. 2d 911 (Fla. 1954)
- Am. Health Ass'n, Inc. v. Helprin, 357 So. 2d 204 (Fla. 4th DCA 1978)
- Jones v. Braxton, 379 So. 2d 115 (Fla. 1st DCA 1979)