BOB NAPP, APPELLANT,
v.
JOYCE DIEFFENDERFER ET AL., APPELLEES
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Bob Napp, an unsuccessful candidate for Miami Beach City Council, challenged the election results claiming the punch-card voting system was unconstitutional and that certain ballots were improperly disqualified. The trial court dismissed his complaint for failure to allege that the irregularities, if corrected, would change the election outcome, and the appellate court affirmed.
The court affirmed the dismissal, holding that under Florida law, a candidate challenging election results must allege facts showing that the alleged irregularities, if corrected, would change the election outcome. The court also held that the trial court lacked jurisdiction to consider the post-judgment motion to examine ballots after dismissing the case.
[1] A candidate challenging election results must allege that the irregularities complained of, if corrected, would cause a different outcome than the one achieved.
[2] A trial court lacks jurisdiction to rule on post-judgment motions after dismissing a cause of action.
Previewing 2 of 3 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 plaintiff political candidate did not allege that the irregularities complained of, if corrected, would cause a result different from that which the election had achieved”
Establishes the controlling legal test for candidate challenges to election results in Florida—the threshold requirement of alleging facts showing a different outcome if irregularities were corrected.
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Join FLexlaw to unlock all legal intelligenceBob Napp was a candidate in a November 1, 1977 election for councilman in Miami Beach's Group 4 race. Following the election, Napp filed suit seeking …
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PER CURIAM.
Appellant Bob Napp, plaintiff below, was a candidate in an election for councilman in the City of Miami Beach. Following the election, he filed a complaint whereby he sought the following relief:
“WHEREFORE, Plaintiffs pray that the Court:
“A. Enter a temporary restraining order enjoining Defendants from certifying the Group 4 election results as final and official until a speedy fact hearing can be held.
“B. Enter an order impounding the 706 disqualified ballots and make a determination of whether they were tampered with or properly disqualified.
“C. Enter a declaratory judgment determining and adjudicating the legal status and validity of the new computer-punch card election system.
“D. After a final hearing, enter a permanent injunction against the results of the November 1, 1977 election in the City Council Group 4 race.
“E. Order a special election to be held in Group 4.
“F. Grant Plaintiffs such other relief as the Court deems appropriate and just.”
As grounds for the relief sought, the complaint alleged (1) that the system of voting by punch cards is unconstitutional, (2) that the election system of disqualifying double-punched cards violates the due process under the Florida and United States Constitutions, and (3) that the election results in Group 4 (council election group) may be tainted by violations of Dade County and Florida antielectioneering in polling place laws.
The trial court dismissed the complaint upon a holding that the grounds alleged did not support the relief sought in that the plaintiff political candidate did not allege that the irregularities complained of, if corrected, would cause a result different from that which the election had achieved. This test for determining the validity of a candidate’s challenge of election results has been upheld in many cases in Florida. See McQuagge v. Conrad, 65 So. 2d 851 (Fla.1953); Carn v. Moore, 74 Fla. 77, 76 So. 337 (1917); Pickett v. Russell, 42 Fla. 116, 634, 28 So. 764 (1900); Nelson v. Robinson, 301 So. 2d 508 (Fla. 2d DCA 1974); and Brake v. Gissendanner, 206 So. 2d 10 (Fla. 3d DCA 1968).
The plaintiff, with permission of the court, filed an amended complaint, which was dismissed with prejudice. The amended complaint expanded the allegations of the original complaint but did not change their nature nor allege fraud or show that the alleged errors were sufficient to produce a different result.
On this appeal, it is urged that the court should have considered the complaint as one by a qualified voter contesting the legality of the election. We think that this argument is without effect because both the original and the amended complaints were clearly seeking relief for the candidate, that is, as prayed for in the amended complaint, that the court declare:
“. . . Bob Napp, to be the successful candidate in Group 4; further order and declare his entitlement to the office of commissioner or councilman of the City of Miami Beach as of November 2, 1977 and order that he be sworn in as such.”
An additional point on appeal seeks reversal of a post-judgment order which denied the plaintiff’s motion to examine certain ballots. After having dismissed the cause, the trial court had no further jurisdiction in the matter. See Osborne v. Shell Oil Company, 104 So. 2d 670 (Fla. 1st DCA 1958).
Having determined that the court correctly dismissed plaintiff’s original complaint and his amended complaint, the judgment appealed is affirmed.
Affirmed.
. Two other unsuccessful candidates in the same election were removed as plaintiffs in this cause by an Amendment to Complaint which was filed the same day as the complaint.
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Taylor v. Hartford Accident & Indem. Co., 405 So. 2d 1070 (Fla. 5th DCA 1981)…s have moved to dismiss on the basis that the appeal is untimely, since the final order of dismissal dated July 25, 1980, was not appealed within thirty days. See Fla.R.App.P. 9.110(b). We agree. See Gries, 388 So. 2d at 1283; Napp v. Dieffenderfer, 364 So. 2d 534 (Fla. 3d DCA 1978). Accordingly, this appeal is DISMISSED. ORFINGER and SHARP, JJ., concur.…
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Durwood Smith v. Tynes, 412 So. 2d 925 (Fla. 1st DCA 1982)…e election would have been different and he or she would have been the winner. See McQuagge v. Conrad, 65 So. 2d 851 (Fla.1953); Anderson v. Canvassing and Election Board of Gadsden County, 399 So. 2d 1021 (Fla. 1st DCA 1981); Napp v. Dieffenderfer, 364 So. 2d 534 (Fla. 3d DCA 1978); Brake v. Gissendanner, 206 So. 2d 10 (Fla. 3d DCA 1968). It is not enough to show a reasonable possibility that election results could have been altered by [*927] the irregularities; a reasonable probability that the results woul…
Authorities Cited
- Carn v. Moore, 74 Fla. 77 (Fla. 1917)
- Pickett v. Russell, 42 Fla. 116 (Fla. 1900)
- Nelson v. Robinson, 301 So. 2d 508 (Fla. 2d DCA 1974)
- Osborne v. Shell OIL Co., 104 So. 2d 670 (Fla. 1st DCA 1958)
- Brake v. Elton J. Gissendanner, 206 So. 2d 10 (Fla. 3d DCA 1968)