DeSmedt v. City of North Miami Beach

District Court of Appeal of Florida

DeSmedt v. City of North Miami Beach

591 So. 2d 1077, 1991 Fla. App. LEXIS 13027, 1991 WL 276885

District Court of Appeal of Florida·Decided December 31, 1991·No. No. 91-1959·Published·Cited by 1 cases

Opinion

SCHWARTZ, Chief Judge.

The judgment before us dismissed a complaint which sought a declaratory judgment that a resolution of the North Miami City Commission finally approving a site plan was invalid. The basis of the ruling below was that an original action for such relief was inappropriate. Pursuant to Florida Rule of Appellate Procedure 9.040(c),¹ we treat this appeal as an application for cer-tiorari, see City of Deerfield Beach v. Valliant, 419 So.2d 624 (Fla.1982); Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197, 1198 n. 1 (Fla. 3d DCA 1981), and quash the decision below.

Under the appellate rule which we have already invoked, Fla.R.App.P. 9.040(c), the mistaken complaint below should have been treated as an appropriate notice of appeal, see Fla.R.App.P. 9.030(c)(1)(A)²; City of [1078]*1078Deerfield Beach, 419 So.2d at 624; Brickell, 393 So.2d at 1197; see Reed v. City of Hollywood, 483 So.2d 759 (Fla. 4th DCA 1986). Because the complaint was filed within thirty days of the city commission action sought to be reviewed, there is no jurisdictional impediment to this determination.

Certiorari granted.

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SCHWARTZ, Chief Judge.

The judgment before us dismissed a complaint which sought a declaratory judgment that a resolution of the North Miami City Commission finally approving a site plan was invalid. The basis of the ruling below was that an original action for such relief was inappropriate. Pursuant to Florida Rule of Appellate Procedure 9.040(c),¹ we treat this appeal as an application for cer-tiorari, see City of Deerfield Beach v. Valliant, 419 So.2d 624 (Fla.1982); Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197, 1198 n. 1 (Fla. 3d DCA 1981), and quash the decision below.

Under the appellate rule which we have already invoked, Fla.R.App.P. 9.040(c), the mistaken complaint below should have been treated as an appropriate notice of appeal, see Fla.R.App.P. 9.030(c)(1)(A)²; City of [1078]*1078Deerfield Beach, 419 So.2d at 624; Brickell, 393 So.2d at 1197; see Reed v. City of Hollywood, 483 So.2d 759 (Fla. 4th DCA 1986). Because the complaint was filed within thirty days of the city commission action sought to be reviewed, there is no jurisdictional impediment to this determination.

Certiorari granted.

DeSmedt v. City of North Miami Beach, 591 So. 2d 1077, 1991 Fla. App. LEXIS 13027, 1991 WL 276885 (Fla. Ct. App. 1991).

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Opinion

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