RONALD E. RIGHTLER, APPELLANT,
v.
POMPANO BEACH POLICE AND FIREMAN'S PENSION FUND, APPELLEE
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The court held that the trial court erred by applying civil procedure rules to dismiss a petition for common law certiorari for lack of prosecution.
A fireman sought retirement benefits, lost before the Pension Fund Board, and filed a petition for common law certiorari in circuit court. The trial c…
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LETTS, Judge.
Treating this matter as a petition for common law certiorari, we are asked to review a circuit court’s appellate disposition of a fireman’s claim for retirement benefits which he lost before the Pension Fund Board. We grant the petition.
Upon the filing of his petition in circuit court, according to Fund requirements, the fireman correctly perceived that his certiorari proceeding would be governed by Florida Rule of Appellate Procedure, 9.010, and more particularly Rule 9.030(c)(2). This latter rule, in turn, is governed by Rule 9.100(f) which requires the circuit court to issue an order to show cause if the petition demonstrates a preliminary basis for relief.
However, the trial court proceeded under Florida Rule of Civil Procedure 1.010, and more specifically Rule 1.420(e) and dismissed the petition for lack of prosecution after one year. The record of this controversy reveals a classic Alphonse-Gaston scenario under which the trial court and the fireman each exhorted the other to go first. We hold it was up to the trial court to make the next move after receiving the fireman’s petition and that the court violated the essential requirements of the law when it refused to do so. See Henshaw v. Kelly, 440 So. 2d 2 (Fla. 5th DCA 1983).
We grant the petition and remand with directions to the trial court to proceed under Florida Rule of Appellate Procedure 9.100(f).
CERTIORARI GRANTED.
HURLEY and DELL, JJ., concur.
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City OF Tampa v. Lewis, 488 So. 2d 860 (Fla. 2d DCA 1986)…2d DCA 1981); Hunter v. City of Tampa, 379 So. 2d 426 (Fla. 2d DCA 1980); City of Miami v. Shires, 167 So. 2d 22 (Fla. 3d DCA 1964). See also De Groot v. Sheffield, 95 So. 2d 912 (Fla.1957); Rightler v. Pompano Beach Police & Firemen’s Pension Fund, 467 So. 2d 461 (Fla. 4th DCA 1985). For the reasons stated above we reverse the order of the trial court and remand for reinstatement of the Board’s order finding Lewis entitled to non-line-of-duty benefits. GRIMES, A.C.J., and SCHOONOVER, J., concur.…
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Dep't OF Hwy. Safety & Motor Vehicles v. Snell, 832 So. 2d 177 (Fla. 5th DCA 2002)…relief should .not be granted.” Evergreen Tree Treasurers of Charlotte County, Inc. v. Charlotte County Bd. of County Comm’rs, 810 So. 2d 526 (Fla. 2d DCA 2002) (emphasis added); see also Rightler v. Pompano Beach Police and Fireman’s Pension Fund, 467 So. 2d 461 (Fla. 4th DCA 1985) (holding that circuit court violated the essential requirements of the law [*179] in not issuing an order to show cause after receiving a facially sufficient petition for writ of certiorari). Although the circuit court noted no…
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Kendrick v. Fla. Parole Comm'n, 855 So. 2d 248 (Fla. 1st DCA 2003)…les v. Snell, 832 So. 2d 177 (Fla. 5th DCA 2002); Evergreen Tree Treasurers of Charlotte County, Inc. v. Charlotte County Bd. of County Comm’rs, 810 So. 2d 526 (Fla. 2d DCA 2002); see also Rightler v. Pompano Beach Police and Fireman’s Pension Fund, 467 So. 2d 461 (Fla. 4th DCA 1985). Accordingly, the circuit court’s order which denied the petition for writ of mandamus is quashed and the cause is remanded for further proceedings. We further direct the circuit court to expedite its proceedings. PETITION GRAN…
Authorities Cited
- Henshaw v. Kelly, 440 So. 2d 2 (Fla. 5th DCA 1983)