ANTONIO GIL, APPELLANT,
v.
GEORGE DE MARCO, APPELLEE
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Plaintiff sought an injunction against defendant's alleged violations of zoning ordinance provisions regarding fire resistance and masonry construction. The trial court denied the injunction on the fire resistance ground but did not address the masonry construction requirement. The appellate court affirmed the denial on the fire resistance issue but remanded for consideration of the masonry violation.
The trial court's denial of the injunction based on the fire resistance provision was affirmed. The case was remanded for the trial court to consider and rule on the masonry construction requirement that had not been adjudicated on the merits.
[1] A denial of injunctive relief on one ground in a complaint does not necessarily preclude adjudication of other claims for relief within the same complaint if the record s…
[2] A court may affirm a denial of an injunction on one ground while remanding for consideration of another claimed violation of a zoning ordinance.
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“The denial of relief upon a complaint will ordinarily act as a denial of all claims for relief contained in the complaint. An exception exists where, as here, the record affirmatively shows that the entire case was not adjudicated.”
Establishes the legal principle that justified remand when trial court failed to rule on all claims presented.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe case involved two buildings—one belonging to plaintiff and one belonging to defendant—allegedly violating provisions of Monroe County's zoning ord…
The full statement of facts, procedural history, and disposition for this case are member content.
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PEARSON, Judge.
Appellant, plaintiff in the trial court, seeks review of an adverse final judgment dismissing plaintiff’s complaint and defendant’s counterclaim, in an action by plaintiff seeking an injunction against defendant’s alleged violation of a zoning resolution.
The complaint presented two issues:1 (1) whether the two buildings (one of plaintiff’s and one of defendant’s) were in violation of a provision of the zoning ordinance which required “two hour fire resistance,” and (2) whether the buildings were in violation of a provision of the zoning ordinance which required that the first story of any building erected without set back from the lot line be constructed of masonry.
Upon conflicting testimony, the trial judge denied the applications for injunction as to the first ground. North Dade Water Co. v. Adken Land Co., Fla. App.1959, 114 So. 2d 347. The court did not rule upon the applicability of the second provision of the ordinance, i. e., the requirement for masonry construction. The denial of relief upon a complaint will ordinarily act as a denial of all claims for relief contained in the complaint. An exception exists where, as here, the record affirmatively shows that the entire case was not adjudicated.
We affirm the denial of the injunction upon the portion of the ordinance relied upon but remand for a consideration of the second claimed violation of the zoning ordinance.
Affirmed in part, reversed in part, and remanded.
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“3. That prior to August 11, 1972, the Board of County Commissioners of Monroe County enacted the Zoning Code of Monroe County which said ordinance regulates and restricts the location and use of building structures and land and which said ordinance has been at all times mentioned herein and is now in full force; among other things said ordinance provides that in a district zoned BU-1 or BU-2 or any BU zone no commercial building shall be placed closer than five (5) feet to a side or real property line unless the outside walls are constructed as to offer at least two (2) hour fire resistance and in addition thereto provides that the first story of any building erected in such zone may be placed up to the side lot line where the adjoining lot is also zoned for business provided however that the building is constructed of masonry.”
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Citator
Cited By
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Fla. Audubon Soc'y v. Nat Ratner, 497 So. 2d 672 (Fla. 3d DCA 1986)…ement document purporting to reserve rights to the grantor, cf. Evans v. Carroll, 104 So. 2d 375 (Fla.1958) (though trial court did not expressly refer to certain points, decree was a negative disposition of all pertinent questions); Gil v. DeMarco, 296 So. 2d 660 (Fla. 3d DCA 1974) (same); Nusbaum v. Riskin, 136 So. 2d 1 (Fla. 2d DCA 1961) (same), and that the trial court correctly denied Ratner’s motion for a new trial. IV. Newly Discovered Evidence Ratner contends that the trial court erred in denying hi…
Authorities Cited
- N. Dade Water Co. v. Adken Land Co., 114 So. 2d 347 (Fla. 3d DCA 1959)