HomeMy WebLinkAboutItem III (B) - Approval and Authorization for Attorney Fishman to Proceed and Request Appellate Review of Order Denying Motion to Dismiss Case No 89-9604 Ocoee vs Stucki AGENDA 3-5-91
Item III B
FOLEY & LARDNER
III NORTH ORANGE AVENUE, SUITE 1800
ORLANDO, FLORIDA 32801-2386
TELEPHONE (407) 423-7656
FACSIMILE (407) 648-1743
TAMPA, FLORIDA MAILING ADDRESS: MILWAUKEE, WISCONSIN
JACKSONVILLE, FLORIDA POST OFFICE BOX 2193 MADISON, WISCONSIN
TALLAHASSEE, FLORIDA ORLANDO, FL 32802-2193 WASHINGTON, D.C.
WEST PALM BEACH, FLORIDA ALEXANDRIA, VIRGINIA
ANNAPOLIS, MARYLAND
CHICAGO, ILLINOIS
MEMORANDUM
To: Mayor Lester Dabbs , Jr. , Mayor
and City Commissioners of the
City of Ocoee
From: Elaine G. Fishman i-IY/
Through: Paul E. Rosenthal, City Attorney
Date: February 22 , 1991
Re: City of Ocoee v. Stucki
Case No. CI 89-9604 ( Stucki 2 ) :
Appellate Review of Order Denying Motion to Dismiss
Second Amended Complaint
On February 9 , 1991 , the Court denied the Defendants '
Motion to Dismiss the Second Amended Complaint filed by Ronald
Stucki and Discount Deals in the Stucki 2 litigation. Because
the claims raised in the Second Amended Complaint impact on
the question of the sovereign immunity of the City and its
employees to perform discretionary acts without judicial inter-
vention, it is important to have this decision reviewed by
the appellate court as quickly as possible. If, in fact ,
the City does have immunity from suit for the claims raised
in the Second Amended Complaint , that immunity would, in effect,
be abrogated by having to litigate this lawsuit to its conclusion.
The procedure used to seek appellate review from this
type of order is a petition for writ of certiorari. This
procedure allows the City to ask the appellate court to review
the matter now because the lower court ' s order is a departure
from the essential requirements of law and because adequate
relief cannot be obtained at the end of the case.
The petition for writ of certiorari is discretionary
with the Court . That is , the District Court of Appeal will
examine the petition to determine if it demonstrates a preliminary
basis for relief. Based on that determination, it may or
may not require the Plaintiffs to file a response before making
its decision.
We believe that it is in the City' s best interest
to pursue appellate review of the order denying the motion
to dismiss the second amended complaint at this time.
The City Attorney requests the City Commission to
authorize pursue of appellate review of the Circuit Court ' s
order denying the City ' s motion to dismiss the second amended
complaint in the appropriate manner under the Florida Rules
of Appellate Procedure.
EGF:dh
cc: Ellis Shapiro
Jean Grafton
-2-