Opinion
No. 1D21-640
05-17-2023
CITY OF NEWBERRY, City of Archer, and City of Alachua, Appellants, v. ALACHUA COUNTY and the Alachua County Charter Review Commission, Appellees.
S. Scott Walker, Andrea True Parker, Richard B. Maltby, and David W. Wagner of Folds, Walker & Maltby, LLC, Gainesville, for Appellants City of Newberry and City of Archer; David A. Theriaque, S. Brent Spain, and Benjamin R. Kelley of Theriaque & Spain, Tallahassee, for Appellant City of Alachua; and Marian B. Rush of Robert A. Rush, P.A., Gainesville, for Appellant City of Alachua. Corbin F. Hanson, Senior Assistant County Attorney, and Robert C. Swain, Deputy County Attorney, Gainesville, for Appellee Alachua County; Wade C. Vose, Gretchen R.H. Vose, and John M. Cary of Vose Law Firm LLP, Winter Park, for Appellee Alachua County Charter Review Commission.
S. Scott Walker, Andrea True Parker, Richard B. Maltby, and David W. Wagner of Folds, Walker & Maltby, LLC, Gainesville, for Appellants City of Newberry and City of Archer; David A. Theriaque, S. Brent Spain, and Benjamin R. Kelley of Theriaque & Spain, Tallahassee, for Appellant City of Alachua; and Marian B. Rush of Robert A. Rush, P.A., Gainesville, for Appellant City of Alachua.
Corbin F. Hanson, Senior Assistant County Attorney, and Robert C. Swain, Deputy County Attorney, Gainesville, for Appellee Alachua County; Wade C. Vose, Gretchen R.H. Vose, and John M. Cary of Vose Law Firm LLP, Winter Park, for Appellee Alachua County Charter Review Commission.
Tanenbaum, J.
We briefly address why we dismiss for lack of jurisdiction. The Florida Constitution gives a district court of appeal the authority to review non-final orders "to the extent provided by rules adopted by the supreme court." Art. V, § 4(b)(1), Fla. Const. One of those rules provides authority to review orders that "grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions." Fla. R. App. P. 9.130(a)(3)(B). In this case, we have a self-characterized, non-final-order appeal that seeks review of a summary judgment rendered on only one of three counts in a declaratory-judgment complaint. The preliminary question we must answer is whether that order qualifies under rule 9.130(a)(3)(B) to support our review authority, where the injunctive relief prayed for in the one count was merely adjunctive to the declaration sought. The answer is no.
The cities of Newberry, Archer, and Alachua collectively sued both their home county of Alachua and the county's Charter Review Commission ("CRC") for a declaratory judgment. Their dispute was over a proposal by the CRC to amend the charter and create a "County Growth Management Area" to be governed by the county's comprehensive plan and land development regulations. The proposed amendment had to go on the ballot and be approved by the voters to go into effect. Suffice it to note that the cities pursued the declaratory relief allowed under chapter 86, Florida Statutes, and their complaint contained three counts—each with a different legal theory for why the proposed amendment should be declared invalid and be given no force or effect. In count one, the cities asserted that the ballot title and summary violated section 101.161, Florida Statutes. Counts two and three each asserted a different legal theory for why the proposed amendment was unconstitutional pursuant to Article VIII, section 1(g). All three counts sought "a permanent injunction as supplemental relief."
Both the county and the CRC moved for summary judgment on just count one. Argument was had by both sides of the dispute, and the trial court rendered an order granting the motion. The order detailed why the cities’ legal theory about the ballot title and summary failed on the merits. There is no dismissal of this count mentioned in the order, but there is no doubt about the preclusive effect: The claim of a violation of section 101.161 is dead. There was no court action regarding the other two counts, and from what we can tell, they are alive and well, at least for now. Rather than pursue to conclusion the two alternate theories of invalidity set out in the complaint against the county and the CRC, though, the cities appealed the trial court's non-final order on count one. According to the cities’ notice of appeal, the order is appealable as one "denying injunctive relief." This characterization misunderstands how the declaratory judgment process works under chapter 86.
Declaratory relief, unknown to the ancient common law, is of legislative origin. See Seaside Town Council, Inc. v. Seaside Cmty. Dev. Corp. , 347 So. 3d 89, 100–01 (Fla. 1st DCA 2021) (Tanenbaum, J., dissenting) (briefly setting out history of Florida's declaratory judgment statute). Unlike a typical judgment rendered in favor of a plaintiff in a tort or contract suit, the declaratory judgment authorized by statute is distinct in that it "stands by itself; that is, no executory process follows as of course. In other words, such a judgment does not involve executory or coercive relief." Watson v. Claughton , 160 Fla. 217, 34 So. 2d 243, 245 (1948) (quotations and citation omitted); cf. § 86.011, Fla. Stat. (authorizing a trial court "to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed" and providing that the "declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment"); id. ("Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent, or supplemental relief in the same action.").
For this reason, chapter 86 requires a plaintiff to obtain declaratory relief first, before the plaintiff seeks an injunction. The injunctive relief is ancillary to and dependent upon the existence of a declaratory judgment, and, even then, the relief must be sought by motion. See § 86.061, Fla. Stat. (allowing "[f]urther relief based on a declaratory judgment [to] be granted when necessary or proper" and requiring "application therefor [to] be by motion to the court having jurisdiction to grant relief" once the parties’ "rights have been adjudicated"); cf. Fla. House of Representatives v. League of Women Voters of Fla. , 118 So. 3d 198, 216 (Fla. 2013) (Canady, J., dissenting) ("Further relief is based on the prior declaratory judgment only if it seeks to give effect to that judgment—not if it seeks to wholly or partially invalidate that judgment."). If the trial court denies the declaratory relief on the merits, it is not authorized under chapter 86 to even reach the question of granting the supplemental relief because there is no judgment to serve as the condition precedent to filing the motion required by section 86.061.
The order on review here rejected one of the cities’ theories for declaratory relief—as opposed to injunctive relief—leaving the other two in play. In other words, the trial court determined only that the cities were not entitled to declaratory relief as pleaded in count one. Of course, no declaratory judgment was provided on that count. By statute, then, the availability of injunctive relief never ripened into a question for the court to address as an interlocutory matter. The order granting summary judgment for the county and the CRC on count one, in turn, is not one that denies an injunction. Simply put, the order never made it that far, nor could it. It is not a non-final order that we have jurisdiction to review under rule 9.130.
DISMISSED for lack of jurisdiction.
Ray and Long, JJ., concur.