PRESTON S. BROOKS, P. S. BROOKS, INC., A FLORIDA CORPORATION, APPELLANTS,
v.
CITY OF WEST MIAMI, A FLORIDA MUNICIPAL CORPORATION, APPELLEE
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Preston Brooks and his corporation appealed a judgment denying their request for a peremptory writ of mandamus against the City of West Miami. The court affirmed the denial of the mandamus writ and upheld the trial court's dismissal of the city's counterclaim, holding that counterclaims are not permissible in mandamus proceedings absent specific statutory or rule authorization.
The court affirmed the denial of the peremptory writ of mandamus because the right to relief was not clear and certain but rather doubtful and dependent upon determination of controverted facts. The court also affirmed the dismissal of the counterclaim, holding that at common law counterclaims in returns to petitions for mandamus were not permitted, and absent specific statutory or rule authorization, Florida law does not permit counterclaims in mandamus actions.
[1] A writ of mandamus is not available when the right sought is doubtful or depends upon the determination of controverted facts.
[2] Counterclaims are generally not permissible in mandamus proceedings absent statutory authorization.
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“The right to the writ of mandamus sought by plaintiffs was not clear and certain. The right in question was doubtful and depended upon a determination of controverted and conflicting facts.”
Establishes the standard for mandamus relief and why plaintiffs' writ was properly denied.
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Join FLexlaw to unlock all legal intelligencePlaintiffs sought a writ of mandamus against the City of West Miami. The city filed a response and counterclaim against Preston S. Brooks individually…
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The plaintiffs below appeal from a final judgment for the City of West Miami, Florida. The final judgment denied plaintiffs’ request for a peremptory writ of mandamus; discharged the alternative writ of mandamus previously issued and denied the counterclaim of the City of West Miami without prejudice. Plaintiffs have appealed and the City has cross-assigned as error the order denying its counterclaim without prejudice.
The right to the writ of mandamus sought by plaintiffs was not clear and certain. The right in question was doubtful and depended upon a determination of controverted and conflicting facts. No error has been clearly demonstrated in this appeal in the order denying the peremptory writ of mandamus and discharging the alternative writ. State ex rel. Hester v. State Board of Administration, 158 Fla. 567, 30 So.2d 356 (1947); State ex rel. Metcalf Company v. Martin, 55 Fla. 538, 46 So. 424 (1908); State ex rel. Smith v. City of Margate, Fla.App.1963, 155 So.2d 165; and 21 Fla.Jur. Mandamus § 25.
The City in its “Response to alternative writ of mandamus” filed a counterclaim against one of the plaintiffs, Preston S. Brooks, individually, and prayed for a mandatory injunction requiring him to comply with his alleged written agreement to provide proper off-street parking for certain premises or, in the alternative, that he be permanently enjoined from operating the liquor bar located on the premises. The trial court dismissed the counterclaim on the sole ground that it was improperly raised in a mandamus action.
Generally, counterclaims are not permissible in mandamus proceedings but in some jurisdictions by virtue of statute they are allowable. See. 55 C.J.S. Mandamus § 281 and 52 Am.Jur.2d Mandamus § 438.
Counsel for the City concedes inability to find authority for counterclaims in actions for mandamus in the Florida Statutes but asserts it should be permissible under Rules 1.010, 1.660, and 1.170(a), R.C.P., 30 & 31 F.S.A. He relies on State ex rel. R-1 School District of Putnum County v. Ewing, Mo.App.1966, 404 S.W.2d 433; and certain dicta in Hannum v. State ex rel. Hannum Co., 135 Fla. 3, 184 So. 500 (1938).
At common law a counterclaim in a return to a petition for mandamus was not permitted. City of Leavenworth v. Leavenworth City & Ft. L. W. Co., 62 Kan. 643, 64 P. 66 (1901) ; and State ex rel. Harvey v. Plankinton Arcade Co., 182 Wis. 23, 195 N.W. 904 (1923). The common law is in effect except as it is modified or superseded by statute. Wester v. Rigdon, Fla.App.1959, 110 So.2d 470; § 2.-01, Fla.Stat., F.S.A.; and 6 Fla.Jur. Common Law § 5. The rules do not specifically authorize the filing of a counterclaim in a return to an alternative writ of mandamus. In the absence of a specific statute or rule permitting counterclaims in a mandamus action, we find no error in this ruling.
Affirmed.
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Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)…the common law, if not abrogated by statute or constitutional provision, is in full force and effect in this state. See also Bryan v. Landis, 106 Fla. 19, 142 So. 650 (1932), Wilson v. Renfroe, 91 So. 2d 857 (Fla.1957), Brooks v. City of West Miami, 246 So. 2d 115 (Fla.App.1971). It is the statutory law of this state that, “The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the fourth day of July, 1776, are declared to be o…
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Morse Diesel Int'l, Inc. v. 2000 Island Boulevard, Inc., 698 So. 2d 309 (Fla. 3d DCA 1997)…ght but not to establish that right.” Chavis, 538 So. 2d at 120; see also Blatt, 314 So. 2d at 198 (mandamus unavailable where the asserted right depends upon a determination of controverted questions of part); see also Brooks v. City of West Miami, 246 So. 2d 115, 116 (Fla. 3d DCA), cert. denied, 249 So. 2d 691 (Fla.1971). We find that Williams Island did not establish a clear legal right to mandamus where the clerk’s answer and affirmative defenses created a genuine issue of fact about whether Morse Diesel’…
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Brooks v. City OF W. Miami, 249 So. 2d 691 (Fla. 1971)…Certiorari denied. 246 So. 2d 115. CARLTON, Acting C. J., and ADKINS, BOYD, McCAIN and DEKLE, JJ., concur.…
Authorities Cited
- State of Fla. ex rel. H. W. Metcalf Co. v. Martin, 55 Fla. 538 (Fla. 1908)
- Wester v. Mitchell Rigdon and his wife, 110 So. 2d 470 (Fla. 1st DCA 1959)
- State v. State Bd. OF Admin., 158 Fla. 567 (Fla. 1947)
- State of Fla. ex rel. Clyde M. Smith v. The City OF Margate, 155 So. 2d 165 (Fla. 2d DCA 1963)
- Fisher W. Hannum v. State, 135 Fla. 3 (Fla. 1938)