CITY OF CORAL GABLES, A MUNICIPAL CORPORATION OF FLORIDA, APPELLANT,
v.
PETER P. BALJET, AS POLLUTION CONTROL OFFICER OF DADE COUNTY, AND DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEES
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The City of Coral Gables appeals an interim order requiring it to perform a stack test on its incinerator after being found in violation of Dade County's pollution control ordinance. The court reversed the stack test requirement and remanded with directions for the trial court to order cessation of the violating incinerator operation instead.
The court reversed the stack test requirement, finding that once a violation is established, the trial court should order cessation of the violating operation rather than require further testing. The denial of summary judgment does not establish law of the case and merely defers resolution to final hearing.
[1] Denial of a motion for summary judgment does not establish the law of the case, but merely defers the issue for final hearing.
[2] A trial court, upon finding a party in violation of a pollution control ordinance, should direct the party to cease operation of the offending facility.
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Join FLexlaw to unlock all legal intelligence“The failure to grant a summary judgment does not establish the law of the case; merely defers the matter until final hearing.”
Establishes that denying summary judgment does not resolve the underlying legal issue and does not prevent consideration of the same issue at final hearing
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Join FLexlaw to unlock all legal intelligenceThe Pollution Control Officer of Dade County issued a notice requiring Coral Gables to perform tests on its incinerator to determine compliance with t…
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Appellant seeks review of an interim order directing it to perform a stack test on its incinerator to determine pollution level.
The Pollution Control Officer of Dade County issued a notice to show compliance to the appellant, requiring it to perform certain tests on its incinerator to determine if the incinerator was in violation of Sec. 24 — 21, Code of Metropolitan Dade County, *654Florida.1 When the appellant failed to comply, the Pollution Control Officer and the County filed the instant suit in two counts, alleging in Count I that the appellant had violated Sec. 24-21, Code of Metropolitan Dade County, Florida, and, in Count II, seeking a mandatory injunction to compel a stack test. The appellant answered and both parties moved for a summary judgment as to Count II. The motions were denied and the appellees herein took an interlocutory appeal from said order. This court, in Leach v. City of Coral Gables, Fla.App.1970, 237 So.2d 615, affirmed the trial court’s denial of the ap-pellees’ motion for summary judgment. The cause proceeded to final hearing, at the conclusion of which the trial court found the appellant in violation of Sec. 24 — 21, Code of Metropolitan Dade County, Florida, by exceeding the maximum discharge of particulate matter. Based on that finding, the trial court entered the interim order appealed herein.
The appellant contends the trial court erred in: (1) entering the order appealed, thereby redetermining an issue as to Count II of the appellees’ complaint which the trial court had previously resolved and the appellate court had affirmed and, (2) ordering the appellant to conduct an expensive test to determine the degree to which the appellant was violating Sec. 24-21, Code of Metropolitan Dade County, Florida, when the trial court had already determined the appellant was in violation thereof. The appellee has cross-assigned error in that portion of the order directing the stack test and in failing to prohibit the appellant from continuing operation after it found it in violation of the pollution control ordinance.
Turning to the appellant’s first point, we do not find that the trial judge had redetermined a previously determined issue. The failure to grant a summary judgment does not establish the law of the case; merely defers the matter until final hearing.
We agree with both the appellant and the appellees that once the trial judge found the appellant to be in violation of the ordinance he should have directed the appellant to cease its operation. See: City of Miami v. City of Coral Gables, Fla.App.1970, 233 So.2d 7.
Therefore, the order under review be and the same is hereby reversed insofar as it directs the appellant to make certain stack tests, and the matter is returned to the trial court with directions to enter an appropriate order requiring the appellant to cease the operation of its incinerator in violation of the ordinance. Such an order would be without prejudice to the trial court permitting, in its discretion, the continuance or [if closed down] the reopening of the plant upon such conditions as it might direct. Compare City of Miami v. City of Coral Gables, supra.
Reversed and remanded, with directions.
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Steinhardt v. Steinhardt, 445 So. 2d 352 (Fla. 3d DCA 1984)…as urged, foreclose the defense of res judicata because it is settled that “[t]he failure to grant a summary judgment does not estab [*357] lish the law of the case [but] merely defers the matter until final hearing.” City of Coral Gables v. Baljet, 250 So. 2d 653, 654 (Fla. 3d DCA 1971); see also Wallace v. P.L. Dodge Memorial Hospital, 399 So. 2d 114, 116, n. 2 (Fla. 3d DCA 1981). Furthermore, it is plain beyond peradventure that the plaintiffs’ derivative constructive trust claims, as well as their indivi…
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Cordelia Wallace v. P. L. Dodge Mem'l Hosp., 399 So. 2d 114 (Fla. 3d DCA 1981)…ect a verdict on the identical evidence, is inapposite to the present inquiry. Gleason v. Title Guarantee Co., 317 F. 2d 56 (5th Cir. 1963). The denial of summary judgment merely defers the matter until final hearing. City of Coral Gables v. Baljet, 250 So. 2d 653 (Fla.3d DCA 1971). . But see Hauser Motor Co., Inc. v. Byrd, 377 So. 2d 773 (Fla.4th DCA 1979), and Robinson v. Allstate Ins. Co., 367 So. 2d 708 (Fla.3d DCA 1979), holding that Wackenhut did not change the rule that the appellate court should exam…1 / 2
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City OF Coral Gables v. Baljet, 263 So. 2d 273 (Fla. 3d DCA 1972)…r the stack test, on the ground it was unnecessary in view of the trial court having found, upon the evidence, aside from a stack test, that the operation was in violation of the Code. Upon that appeal (City of Coral Gables v. Baljet, Fla.App.1971, 250 So. 2d 653), this court reversed the provision of the judgment which ordered the stack test, and remanded the cause to the trial court with certain directions, as follows: “We agree with both the appellant and the appellees that once the trial judge found the…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Miami v. City OF Coral Gables, 233 So. 2d 7 (Fla. 3d DCA 1970)
- Leach v. City OF Coral Gables, 237 So. 2d 615 (Fla. 3d DCA 1970)
- Gibbs v. Napoli, 237 So. 2d 615 (Fla. 3d DCA 1970)