MICHAEL RAY ELMORE, PETITIONER,
v.
CITY OF ORANGE CITY, RESPONDENT
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Elmore sought administrative appeal of his termination from the Orange City Police Department, but the circuit court dismissed his appeal for failure to use the proper remedy (certiorari). The Fifth District reversed, holding that under Florida Rule of Appellate Procedure 9.040(c), courts must treat an improperly filed case as if the proper remedy had been sought rather than dismiss it.
The circuit court erred in dismissing the appeal. Rule 9.040(c) requires courts to treat an improperly filed case as if the proper remedy had been sought, provided there is no jurisdictional impediment. Because the City of Orange City is not an administrative agency under the Administrative Procedure Act, certiorari was the proper remedy, and the circuit court should have converted the appeal to a certiorari proceeding rather than dismiss it.
[1] A court reviewing an administrative appeal should treat the case as if the proper remedy had been sought when an improper remedy is initially pursued, provided no jurisdi…
[2] A municipality is not an administrative agency for purposes of the Administrative Procedure Act, meaning there is no statutory right to a direct appeal from its actions.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“if a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought, provided that it shall not be the responsibility of the court to seek the proper remedy”
States the mandatory rule that courts must convert improperly filed cases to the proper remedy rather than dismiss them
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Join FLexlaw to unlock all legal intelligenceMichael Ray Elmore was terminated from his employment with the Orange City Police Department. After exhausting administrative remedies, Elmore filed a…
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DANIEL, Judge.
Petitioner, Michael Ray Elmore, was terminated from his employment with the Orange City Police Department. After unsuccessfully pursuing his administrative remedies, Elmore filed a notice of administrative appeal in the Circuit Court, Seventh Judicial Circuit. Respondent, Orange City, filed a motion to dismiss the appeal on the basis that the proper remedy was certiorari. The circuit court entered an order granting the motion to dismiss, and Elmore now seeks review of that order by certiorari. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(2). Elmore contends that instead of granting the motion to dismiss, the circuit court should have treated the appeal as a certiorari proceeding. For support, Elmore cites Florida Rule of Appellate Procedure 9.040(c), which states that if a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought, provided that it shall not be the responsibility of the court to seek the proper remedy.
In determining the merits of the petition, we cannot consider factual assertions unsupported by the available record. The circuit court did not articulate the reasons for granting the motion to dismiss, but the sole basis for the motion was that certiorari, and not an appeal, was the proper remedy. Unless there is some jurisdictional impediment1, a case should not be dismissed on the basis that an improper remedy has been sought. Rule 9.040(c) must be complied with by courts acting in their review capacity. See Pridgen v. Board of County Commissioners, 389 So. 2d 259 (Fla. 5th DCA 1980), rev. denied, 397 So. 2d 777 (Fla.1981).
Because the respondent city government is not an administrative agency as contemplated by the Administrative Procedure Act (Chapter 120, Florida Statutes), Elmore had no statutory right to an appeal. See Cherokee Crushed Stone v. City of Miramar, 421 So. 2d 684 (Fla. 4th DCA 1982). Therefore, certiorari was the proper remedy. As it appears there was no jurisdictional bar in treating the appeal as a certiorari proceeding, the circuit court should have followed that procedure. Accordingly, the order granting the motion to dismiss is quashed.
WRIT ISSUED.
DAUKSCH and ORFINGER, JJ., concur. . See, e.g., Johnson v. Citizens State Bank, 518 So. 2d 410 (Fla. 1st DCA 1988).
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Citator
Cited By
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Villa Lyan, Inc. v. Perez, 159 So. 3d 940 (Fla. 3d DCA 2015)…st treat the appeal as a petition for writ of certiorari. A case should not be dismissed because an improper remedy has been sought, and “Rule 9.040(c) must be complied with by courts acting in their review capacity.” Elmore v. City of Orange City, 528 So. 2d 997, 998 (Fla. 5th DCA 1988) (citing Pridgen v. Bd. of Cnty. Comm’rs, 389 So. 2d 259 (Fla. 5th DCA 1980)). Significantly, our sister District Courts have granted certiorari and quashed appellate division orders that dismissed appeals of administrative o…
Authorities Cited
- Cherokee Crushed Stone, Inc. v. City OF Miramar, 421 So. 2d 684 (Fla. 4th DCA 1982)
- Wiley Ulee Pridgen v. Bd. OF Cnty. Comm'rs OF Orange Cnty., 389 So. 2d 259 (Fla. 5th DCA 1980)
- R.S. Johnson v. Citizens State Bank, 518 So. 2d 410 (Fla. 1st DCA 1988)