WILLIAM BOONE DARDEN AS CHIEF OF POLICE, CITY OF RIVIERA BEACH; WILLIAM WILKENS AS CITY MANAGER, CITY OF RIVIERA BEACH, AND THE CITY OF RIVIERA BEACH, APPELLANTS,
v.
POLICE AND FIRE CIVIL SERVICE BOARD, CITY OF RIVIERA BEACH, APPELLEE
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The City of Riviera Beach and its officials appealed the trial court's grant of a temporary injunction and declaration that a city ordinance terminating civil service board members' terms was unconstitutional. The appellate court affirmed, holding that the city forfeited its capacity-to-sue defense by failing to raise it at the hearing on the injunction motion, and remanded for consideration of pleading adequacy.
The appellate court affirmed the trial court's order, holding that the city forfeited its capacity-to-sue defense by failing to raise it at the hearing on the injunction motion, despite having raised it in its answer. The court remanded for the trial court to determine whether the pleadings adequately raise the capacity issue and, if capacity is found to exist, to proceed to final hearing on the merits.
[1] A party's failure to raise an issue, including capacity to sue, at an earlier hearing or appeal may preclude them from raising it later.
[2] A trial court may grant temporary injunctive relief upon finding an ordinance unconstitutional.
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“Although the city had earlier raised the issue of capacity to sue, adequately or otherwise, at the hearing on the board's motion the two attorneys who were representing the city said nothing about it.”
Establishes that the city forfeited its capacity-to-sue defense by failing to raise it at the hearing despite including it in the answer.
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Join FLexlaw to unlock all legal intelligenceThe Police and Fire Civil Service Board filed a petition for enforcement against the City of Riviera Beach, its city manager, and its chief of police,…
The full statement of facts, procedural history, and disposition for this case are member content.
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GLICKSTEIN, Judge.
On July 2, 1981, the Police and Fire Civil Service Board of Riviera Beach, appellee herein, filed a Petition for Enforcement, pursuant to section 120.69, Florida Statutes (1981) against the city, as well as the city manager and chief of police, all of whom promptly filed an answer, including an affirmative defense based on the board’s lack of capacity to sue. Notwithstanding a stipulated order, dated August 13, 1981, which recited the petitioner was not properly designated in the caption of the pleadings, a first amended complaint was filed in the identical style, including mention in the body that it was constituted of named members, many of whom signed it. The “petitioner/plaintiff” now alleged that its members’ terms expired in 1984; but that the city had passed an ordinance which terminated their terms in August, 1981. It asked the trial court to declare the ordinance unconstitutional.
On August 14, 1981, the board filed an amended motion for emergency temporary injunctive relief; and the hearing was held thereon four days later. Although the city had earlier raised the issue of capacity to sue, adequately or otherwise,1 at the hearing on the board’s motion the two attorneys who were representing the city said nothing about it. The following day the trial court entered an order, granting a temporary injunction and determining the ordinance to be unconstitutional.
On September 17, 1981, the original defendants filed a notice of interlocutory appeal from the trial court’s order; but on October 16, 1981, they filed a notice of dismissal. Subsequently, they moved to dissolve the temporary injunction and sought to argue at the hearing all of the matters that could have been presented to the trial court at the hearing on the board’s earlier motion or to this court in the interlocutory appeal which was dismissed. The trial court denied the motion. We affirm.2
On remand the trial court should consider the adequacy of the pleadings as to the issue of capacity; and if properly raised, make a determination of that issue. In the event capacity is then found to exist, the matter should proceed to final hearing on the merits.
DOWNEY and DELL, JJ., concur. . In Keehn v. Mackey & Co., 420 So. 2d 398 (Fla. 4th DCA, 1982) we discuss the concept of capacity to sue and the procedures governing the issue thereof.
. We have today also denied appellants’ petition for writ of certiorari, in Darden, et al. v. Police and Fire Civil Service Board, 423 So. 2d 543 (Fla. 4th DCA 1982).
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Citator
Authorities Cited
- Keehn v. Joseph C. MacKey & Co., 420 So. 2d 398 (Fla. 4th DCA 1982)
- Darden v. Police & Fire Civil Serv. Bd., 423 So. 2d 543 (Fla. 4th DCA 1982)