CITY OF INDIAN ROCKS BEACH, FLORIDA, APPELLANT,
v.
THOMAS TOMALO, CAMILLE TOMALO, AND CAROLE ANN KEEGAN, APPELLEES
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The City of Indian Rocks Beach challenged a circuit court order that enforced a prior certiorari decision by directing the City to remove a dock or ensure its removal. The appellate court reversed, holding that the circuit court lacked authority to issue an injunction that was neither requested nor proven, and that once the City rescinded the permit as ordered, there were no further provisions to enforce.
The circuit court exceeded its authority by issuing an injunction that was neither requested nor proven. Mandatory injunctions are disfavored and should be granted sparingly. Once the City rescinded the permit as required by the prior certiorari order, there were no further provisions of that order to enforce.
[1] A circuit court may not grant injunctive relief when it has neither been requested nor proven.
[2] Mandatory injunctions are disfavored and should be granted sparingly.
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Join FLexlaw to unlock all legal intelligence“A circuit court is not authorized to grant injunctive relief where it has neither been requested nor proven.”
Establishes the foundational principle that the trial court lacked authority to issue the injunction
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Join FLexlaw to unlock all legal intelligenceProperty owners sought a permit to construct a dock, which was administratively approved by the City. Neighbors (Tomalo and Keegan) appealed and obtai…
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DAVIS, Judge.
Although this case was filed as a petition for “second-tier” certiorari review, it is more properly considered as a direct appeal. The petitioner specifically states that it does not challenge the underlying circuit court order granting certiorari relief by quashing the contested resolution, but rather challenges the subsequent order that is styled as an enforcement of that prior order. These proceedings began when the owners of a parcel of land sought a permit to construct a dock.1 The City of Indian Rocks Beach, through its designated employee, administratively approved the application. However, Thomas Tomalo, Camille Tomalo, and Carole Ann Keegan, neighbors of the subject property, sought review of the approval from the City’s Board of Adjustment and Appeals (BOAA). After a de novo hearing, the BOAA voted to issue the dock permit. The Tómalos and Keegan then appealed to the City Commission, which voted to affirm the issuance of the dock permit. Several years later, the Tómalos and Keegan submitted a “second appeal” to the BOAA based on what they claimed was newly discovered evidence. This time, BOAA voted to rescind the permit. The property owners appealed to the City Commission, which, following a tie vote, rejected BOAA’s recommendation to revoke the permit, affirmed issuance of the permit, and allowed the dock to remain.
The Tómalos and Keegan sought certiorari review in the circuit court, which granted their petition, finding that the City Commission’s decision to uphold the dock permit violated the essential requirements of law. In granting the certiorari relief, the circuit court ordered: “[T]he Respondent’s Resolution 00-81 is quashed. The Respondent shall proceed in a manner consistent with this Order.”2
The City then issued two letters to the property owners, demanding removal of the dock within sixty days. When the owners failed to remove the dock, the Tó-malos and Keegan filed in the certiorari proceeding a motion to compel compliance and a request for sanctions. The circuit court treated the motions as a motion to enforce mandate and issued an order in the nature of an injunction which directed the City to remove the dock or ensure its removal within thirty days.
A circuit court is not authorized to grant injunctive relief where it has neither been requested nor proven. See Lee County v. Fort Myers Airways, Inc., 688 So. 2d 389 (Fla. 2d DCA 1997). Since the trial court here was not presented with a request for an injunction and no proof was offered to demonstrate the elements required to be proven before issuance of an injunction, the trial court was without authority to direct the City to remove the dock. Moreover, as observed in Lee County, mandatory injunctions are disfavored and should be granted sparingly. Id.
The City did rescind the permit as the prior order required. Accordingly, there were no further provisions of the prior order to be enforced. The enforcement of the city code provisions regarding an illegal dock is the subject of a different action requiring appropriate pleadings.
Therefore, the order enforcing the mandate is reversed.
BLUE, C.J., and KELLY, J., concur. . The owners of the subject property are not parlies to this appeal.
. Resolution 00-81 is the resolution passed by the City Commission that affirmed the issu-anee of the permit by the BOAA.
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Paul v. Minotty, M.D., 42 So. 3d 824 (Fla. 4th DCA 2010)…tion, because FEI/doctors had not requested such relief in their complaint. We affirm. A circuit court is not authorized to grant injunctive relief where an injunction has neither been requested, nor proven. See City of Indian Rocks Beach v. Tomato, 834 So. 2d 341, 342 (Fla. 2d DCA 2003). FEI/doctors did not seek to enjoin Dr. Minotty’s exercise of the “put” option in their pleadings, and the essential allegations to support an injunction are missing. The issue of an injunction was not tried by express or imp…
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The Vill. OF Palmetto BAY v. Palmer Trinity Private Sch., Inc., 128 So. 3d 19 (Fla. 3d DCA 2012)…, 1175-76 (Fla. 3d DCA 2011) (confirming that a “first ruling on [a] question” by an appellate division of a circuit court is properly reviewed by the district court as a “first tier” appellate review); see also City of Indian Rocks Beach v. Tomalo, 834 So. 2d 341, 341 (Fla. 2d DCA 2003) (treating a petition for second tier certiorari review of an order enforcing a circuit court appellate division mandate as an appeal). To justify certiorari relief, a petition must demonstrate a departure from the essential…
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Polk Cnty. v. Mitchell, 931 So. 2d 922 (Fla. 2d DCA 2006)…s lawsuit is pending. As to the mandatory injunction, the trial court’s ruling cut short any discussion regarding the appropriate language for any mandatory injunction. Mandatory injunctions are not favored, see City of Indian Rocks Beach v. Tomalo, 834 So. 2d 341, 342 (Fla. 2d DCA 2003), and the trial court may have had more discretion concerning this aspect of the case. It seems obvious, however, that an injunction could have contained language mandating that Mr. Mitchell remove and properly dispose of all…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- LEE Cnty. v. Fort Myers Airways, Inc., 688 So. 2d 389 (Fla. 2d DCA 1997)