Trial Court’s Mandamus Reviewable

If a trial court’s stay order maintains the status quo, can the order be reviewed under Florida Rule of Appellate Procedure 9.130? Or, in plain English, is an injunction by any other name still a reviewable injunction? The Third DCA says yes.

In City of Sunny Isles Beach v. Temple B’Nai Zion, Inc., No. 3D10-1137 (Sept. 8, 2010) [.pdf], the city and the Temple are wrangling over whether the Temple can demolish its existing building to make way for a new one, or whether the city can prevent demolition by naming the Temple a historic site. The trial court issued a “writ of mandamus” that ordered the city not to designate the property as an historic site while the case proceeded. The City appealed, and the Court answered the threshhold question — whether the “writ” was an appealable non-final order — in the affirmative.

Florida Rule of Appellate Procedure 9.130(a)(3)(B) allows district courts of appeal to review “the non-final orders authorized herein”, including those that:

(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions;

So is a “mandamus” an injunction? It is when its purpose serves the same purpose as an injunction:

However, “[t]he very purpose of a temporary injunction is to preserve the status quo in order to prevent irreparable harm from occurring before a dispute is resolved. The Order in this case, by preserving the status quo … clearly constituted a temporary injunction.”

(citation omitted). Once framed as an injunction for review purposes, the court went on to explain that the order should also be reviewed as an injunction, and thus must comply with Florida Rule of Civil Procedure 1.610. It didn’t, and the Court therefore held the order to be an abuse of discretion.

Denial of Intervention is Final Appealable Order

If a third party seeks to intervene in a state court lawsuit, is the denial of the motion to intervene a final, appealable order? The Court in Superior Fence and Rail of North Florida v James O. Lucas, No. 5D09-4213 (May 14, 2010)(en banc)[.pdf] says yes. Receding from prior opinions requiring such review to be accomplished by certiorari, the Court explained that “an order denying a motion to intervene is appealable as a matter of right, by plenary appeal, because the order constitutes a final determination of the proceeding as to the parties seeking to intervene.” In a footnote, the Court noted that the granting of a motion to intervene is still an interlocutory order reviewable by writ of certiorari.

This pronouncement did not do much for the Appellant, however. The Court affirmed the trial court’s denial of the Appellant’s motion to intervene.

Timeliness of Notice of Appeal

Practice tip:  If you are appealing a final order rendered in Palm Beach, Broward, Indian River, Martin, Okeechobee or St. Lucie counties, hand deliver your notice of appeal, and don’t go until you have a file-stamped copy of the notice in your hands.

Carlos Soledispa’s lawyer learned this lesson the hard way.  He sent the Notice of Appeal by courier, and had proof of delivery on February 11, which should have been timely for filing a notice of appeal of a January 13, 2010 order.  But the trial court clerk didn’t stamp the Notice as received until February 23, 2010 — too late.  The Fourth DCA certified conflict with the Third and Fifth DCAs, but refused to accept the evidence of timely filing, insisting that the “filing stamp date governs the filing date.” 

The case is Soledispa v. LaSalle Nat’l Bank Ass’n, No. 4D10-998 (April 28, 2010).

The trial-level clerks are quite backlogged, and I am not all that shocked that it took ten days to process a notice of appeal. I am, however, chagrined that the court would not allow the appellant to rebut the presumption of the correctness of the file stamp.

An untimely notice of appeal is doom for even the best appeal. File early, and don’t rest until you have proof of timely filing in hand.