FOXFIRE OWNERS ASSOCIATION, INC., APPELLANT,
v.
FOXFIRE PROPERTIES, LLC, AND SUGAR LOAF ENVIRONMENTAL HOLDINGS, LLC, APPELLEES
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The Foxfire Owners Association appealed nonfinal orders in a declaratory action concerning covenants running with neighboring land. The trial court struck the Association's objections to a magistrate's recommended order as untimely and adopted the magistrate's order without hearing those objections. The appellate court treated the improper appeal as a petition for certiorari, granted relief, and remanded for the trial court to hold a hearing on the Association's timely-filed objections.
The court held that the trial court erred in striking the Association's objections and adopting the magistrate's recommended order without a hearing. When timely exceptions are filed to a magistrate's recommended order, the trial court must hold a hearing on those exceptions before deciding whether to adopt the magistrate's recommendations.
[1] An appellate court may treat an improperly filed appeal as a petition for certiorari if a proper remedy is available and the relief was timely sought.
[2] A trial court must hold a hearing on timely filed objections to a magistrate's recommended order.
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Join FLexlaw to unlock all legal intelligence“If [timely] exceptions are filed, they shall be heard on reasonable notice by either party.”
Florida Rules of Civil Procedure 1.490(h) mandating that the trial court must hold a hearing on timely-filed exceptions to a magistrate's recommended order
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Join FLexlaw to unlock all legal intelligenceFoxfire Owners Association held covenants in its favor that ran with neighboring land owned by Foxfire Properties, LLC and leased by Sugar Loaf Enviro…
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PER CURIAM.
Foxfire Owners Association, Inc. (the Association) appeals two nonfinal orders the trial court entered in the underlying declaratory action. The dispute centers on certain covenants in the Association’s favor that run with neighboring land. Foxfire Properties, LLC owns part of the property subject to the covenants and Sugar Loaf Environmental Holdings, LLC leases the remaining portion. Foxfire Properties and Sugar Loaf filed the underlying declaratory action to determine whether these covenants enjoy continued validity in the face of changed circumstances. The trial court referred all discovery motions and all motions directed to the pleadings to a general magistrate who held a hearing and filed a recommended order. In the first nonfinal order we review, the trial court struck the Association’s objections to the magistrate’s recommended order as untimely filed; in the second, the trial court adopted the magistrate’s recommended order without hearing the Association’s objections.
The orders the Association brings to us are not reviewable as a nonfi-nal appeal. Fla. R.App. P. 9.130(a)(3). Nevertheless, we elect to treat this case as a petition for certiorari. See Fonte v. Alvarez, 491 So. 2d 1268, 1269 (Fla. 2d DCA 1986) (citing State v. Johnson, 306 So. 2d 102 (Fla.1974), for the proposition that dismissal should be avoided and the cause heard on the merits where an improper remedy has been sought as long as there is a proper remedy or review procedure available and provided the relief was timely sought).
Foxfire Properties and Sugar Loaf concede that relief is appropriate; thus, we grant the petition and strike the trial court’s order adopting the magistrate’s recommended order. We remand with instructions that the trial court hold a hearing on the Association’s timely filed objections. See Fla. R. Civ. P. 1.490(h) (“If [timely] exceptions are filed, they shall be heard on reasonable notice by either party.”). After holding a hearing on the Association’s exceptions, the trial court may then reconsider whether to adopt the magistrate’s recommendations.
Petition for certiorari granted, order stricken, and cause remanded with instructions.
CASANUEVA, SILBERMAN, and VILLANTI, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Zebedee Johnson, Jr., 306 So. 2d 102 (Fla. 1974)
- Fonte v. The Honorable F. Dennis Alvarez, 491 So. 2d 1268 (Fla. 2d DCA 1986)