RAYMOND J. BARBER, PERSONALLY, AND D/B/A RJB SYSTEMS, APPELLANT,
v.
WONDERLAND GREYHOUND PARK, ETC., APPELLEE
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Raymond Barber appealed a trial court's order denying his motion for summary judgment, arguing the court also denied his request for injunctive relief. The Fifth District Court of Appeal dismissed the appeal for lack of jurisdiction because the trial court never actually considered or ruled on the injunction request.
The appeal is dismissed for lack of jurisdiction because the trial court's order did not rule on the request for injunctive relief. An order is only reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(B) if the trial court actually considered and ruled on the injunction request.
[1] A non-final order denying a motion for summary judgment is not reviewable by interlocutory appeal or common-law certiorari.
[2] Appellate review of non-final orders granting or denying injunctions is authorized only when the trial court's order has ruled on the request for injunctive relief.
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“For an order to be reviewable pursuant to rule 9.130(a)(3)(B), however, the trial court's order must rule on the request for injunctive relief.”
Establishes the jurisdictional requirement that the trial court must actually address the injunction issue for an appeal to be proper.
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Join FLexlaw to unlock all legal intelligenceBarber filed a six-count civil complaint against Wonderland Greyhound Park seeking various remedies including a temporary and permanent injunction to …
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THOMPSON, Judge.
Raymond J. Barber (“Barber”) appeals the trial court’s order denying his motion for summary judgment. A non-final order denying a motion for summary judgment is not reviewable by interlocutory appeal or common-law certiorari. Vanco Constr., Inc. v. Nucor Corp., 378 So. 2d 116 (Fla. 5th DCA 1980); Fla.R.App.P. 9.130, 9.030(b)(1)(B). The only possible basis for Barber’s appeal, therefore, is his allegation that the trial court’s order also denied his motion for a permanent and temporary injunction. See Fla.R.App.P. 9.130(a)(3)(B).1 Because the issue of whether an injunction should be issued was never litigated before the trial court, we dismiss Barber’s appeal for lack of jurisdiction.
Barber filed suit against Wonderland Greyhound Park, Inc. (“Greyhound”), in a six-count civil complaint. In count VI of his complaint, Barber sought to enjoin Greyhound from making copies of a computer software program.2 Barber subsequently filed a motion for summary judgment, which the trial court denied. On appeal, Barber contends that this court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B), which authorizes appellate review of non-final orders of lower tribunals granting or denying injunctions. For an order to be reviewable pursuant to rule 9.130(a)(3)(B), however, the trial court’s order must rule on the request for injunctive relief. Maplewood Phase One Homeowner’s Ass’n, Inc. v. Cecil, 585 So. 2d 370, 371 (Fla. 4th DCA 1991).
We have reviewed Barber’s motion for summary judgment, his argument supporting his motion, and his supplemental authority, as well as the trial court’s order denying summary judgment. These documents contain no discussion of whether an injunction should be granted. Further, a review of the transcript of the summary judgment hearing clearly shows that Barber’s counsel never requested injunctive relief and never mentioned count VI of his complaint which requests that an injunction be granted, although Barber’s counsel asked for relief in the form of a money judgment, interest, and attorney’s fees. Because the issue of whether an injunction should be granted was not considered by the trial court, this issue cannot be considered on appeal. Accordingly, Barber’s appeal is dismissed.
DISMISSED.
DAUKSCH and COBB, JJ., concur. . Rule 9.130(a)(3)(B) provides that:
(3) Review of non-final orders of lower tribunals is limited to those that
(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions.
Fla.R.App.P. 9.130(a)(3)(B).
. Count I was for breach of contract, count II was for open account, count III was for account stated, count IV was for goods sold, count V was for specific performance, and count VI was for a temporary and permanent injunction.
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Fernez v. Calabrese, 760 So. 2d 1144 (Fla. 5th DCA 2000)…2d DCA 1997), rev. denied, 717 So. 2d 534 (Fla.), cert. denied, 525 U.S. 984, 119 S.Ct. 449, 142 L.Ed.2d 403 (1998); South Broward Hosp. Dist. v. Dupont By and Through Dupont, 683 So. 2d 1135 (Fla. 4th DCA 1996); Barber v. Wonderland Greyhound Park, 656 So. 2d 961 (Fla. 5th DCA 1995); Chase Federal Bank v. Kim, 604 So. 2d 909 (Fla. 5th DCA 1992). However, in Tucker v. Resha, 648 So. 2d 1187 (Fla.1994), the Florida Supreme Court held that an order denying summary judgment based upon a claim of qualified immuni…
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Gleicher v. Claims Verification Inc., 908 So. 2d 560 (Fla. 4th DCA 2005)…ot a non-final order that grants, continues, modifies, denies, or dissolves an injunction within the meaning of the rule. E.g. Judicial Watch, Inc. v. Carroll, 776 So. 2d 300, 302-03 (Fla. 4th DCA 2000); see also Barber v. Wonderland Greyhound Park, 656 So. 2d 961, 962 (Fla. 5th DCA 1995). The order in this case does not fall within the narrow jurisdictional grounds set forth in rule 9.130(a)(3)(B). The order appealed does not “grant or deny” an injunction. By its terms, the order will not become effective u…
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TP Orlando 504, LLC v. Seymour Int'l, Inc., 57 So. 3d 977 (Fla. 3d DCA 2011)…ruling and therefore, are unable to determine whether the trial court’s order made findings or determinations that would provide this court with jurisdiction under the limited scope of Rule 9.130(a)(3). See e.g., Barber v. Wonderland Greyhound Park, 656 So. 2d 961 (Fla. 5th DCA 1995) (holding appellate court did not have jurisdiction to review non-final order under 9.130(a)(3)(B) where record failed to establish that trial court had considered whether injunctive relief should be granted).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Vanco Constr., Inc. v. Nucor Corp., 378 So. 2d 116 (Fla. 5th DCA 1980)
- Maplewood Phase ONE Homeowner's Ass'n, Inc. v. Cecil, 585 So. 2d 370 (Fla. 4th DCA 1991)