Gil v. De Marco

296 So. 2d 660, 1974 Fla. App. LEXIS 7049

• Court: District Court of Appeal of Florida
• Decided: June 25, 1974
• Docket: No. 73-913
• Status: Published

Opinion

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.

1 . * * * * *

“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.”

*****