HASAM REALTY CORPORATION, APPELLANT,
v.
DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEE
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Hasam Realty Corporation appealed the dismissal of its suit challenging the Zoning Appeals Board's denial of variances based on an insufficient vote. The Florida appellate court affirmed the dismissal, holding that the suit was prematurely filed before the statutory appeal process to the Board of County Commissioners had been completed.
The suit was prematurely filed because the Zoning Appeals Board's decision was not final—the statutory appeal to the Board of County Commissioners had been filed but not yet determined. A plaintiff cannot file suit based on facts existing at the time of filing when the administrative process has not been exhausted, and the defect cannot be remedied by amended pleadings.
“The decision of the Zoning Appeals Board was not final. Section 33-312, Code of Metropolitan Dade County, Florida, provides for an appeal to the Board of County Commissioners. When the instant suit was filed, the appeal to the Board of County Commissioners had been filed, but it had not been determined.”
Establishes that the administrative appeal process had not been exhausted, making the cause of action premature.
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Join FLexlaw to unlock all legal intelligenceHasam Realty applied to Dade County's Zoning Appeals Board for variances. The Board voted 7 for, 2 against, and 1 abstain, but declared the applicatio…
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The plaintiff appeals a final order dismissing its amended complaint. The question presented is whether a cause of action was stated. We hold that the suit was prematurely filed, and we affirm.
The allegations of the amended complaint are as follows: (1) The plaintiff made application to defendant's Zoning Appeals Board for variances on its real property. (2) The Board voted: 7 for the variances, 2 against, and 1 member present abstained from voting. (3) The Board declared that the application for the variances was denied because it failed to obtain a favorable vote by three fourths of the members present as is required by the Code of Metropolitan Dade County,1 Florida. (4) The plaintiff, thereupon, filed an appeal (as is provided by the Code) to the Board of County Commissioners, Dade County, Florida, urging that the Zoning Appeals Board had improperly declared the application denied upon the vote recorded. [The plaintiff then filed the instant suit in equity, which has as its sole purpose the determination of the proper legal effect of the recorded vote of the Zoning Appeals Board.] (5) The Board of County Commissioners proceeded upon the appeal to determine whether or not it would override the decision of its Zoning Appeals Board. In so proceeding, the Board of County Commissioners acted upon the advice of their attorney who advised them that the Zoning Appeals Board had properly declared that the recorded vote was not sufficient to grant the variance. (6) The Board of County Commissioners acted contrary to law and the Code of Metropolitan Dade County, Florida, when it denied the application for the variance.
The amended complaint was filed and dismissed with prejudice.
The decision of the Zoning Appeals Board was not final. Section 33-312, Code of Metropolitan Dade County, Florida, provides for an appeal to the Board of County Commissioners. When the instant suit was filed, the appeal to the Board of County Commissioners had been filed, but it had not been determined.
If a plaintiff has no valid cause of action on the facts existing at the time of filing suit, the defect cannot ordinarily be remedied by the accrual of one while the suit is pending. Meredith v. Long, 96 Fla. 719, 119 So. 114 (1928). We do not find *749that this rule has been changed by the Rules of Civil Procedure which provide for amended or supplemental pleadings. Rule 1.15(d) and (e), Florida Rules of Civil Procedure, 30 F.S.A.
Having thus determined that the case was properly dismissed, we do not reach the question which concerns the legal effect of the vote by the Zoning Appeals Board, nor do we determine whether the case was properly dismissed upon the ground that it constituted an unauthorized attempt to. review the action of the Board of County Commissioners.
Affirmed.
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Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607 (Fla. 4th DCA 1975)…ntiff may not be permitted to cure the defect of non-existence of a cause of action when suit was begun, by amendment of his pleadings to cover subsequently accruing rights, 1 Am.Jur.2d, Actions, Sec. 58. In Hasam Realty Corporation v. Dade County, 178 So. 2d 747 (1965), wherein the plaintiff appealed a final order dismissing its amended complaint, the 3rd D.C.A. stated: “If a plaintiff has no valid cause of action on the facts existing at the time of filing suit, the defect cannot ordinarily be remedied by…
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Cazares v. The Church OF Scientology OF Cal., Inc., 444 So. 2d 442 (Fla. 5th DCA 1983)…court to supplement. See 3 Moore’s Federal Practice § 15.16[2]. The Florida rules were adopted in 1966, after the. new language was placed in the federal rule, but without the federal language underlined above. In Hasam Realty Corp. v. Dade County, 178 So. 2d 747 (Fla. 3d DCA 1965), cert. dismissed, 192 So. 2d 499 (Fla.1966), the plaintiff appealed an order dismissing his complaint against the county for denying his zoning variance as premature. The Third District affirmed, noting that when the suit was file…
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City OF Coral Gables v. Sakolsky, 215 So. 2d 329 (Fla. 3d DCA 1968)…the suit was instituted”. Voges v. Ward, 1929, 98 Fla. 304, 123 So. 785. And the same rule applies to equity proceedings. Meredith v. Long, 1928, 96 Fla. 719, 119 So. 114. See also to the same effect, Hasam Realty Corp. v. Dade County, Fla.App.1965, 178 So. 2d 747; Tomayko v. Thomas, Fla.App.1962, 144 So. 2d 335; Mutual Ben. Health & Accident Ass’n. v. Ott, 1942, 151 Fla. 185, 9 So. 2d 383; and Stegemann v. Emery, 1933, 108 Fla. 672, 146 So. 650. In fact, this Court, in the per curiam majority opinion in Davi…
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- Meredith v. Long, 96 Fla. 719 (Fla. 1928)