Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: APPELLATE PROCEDURE — Appealability/Improper Relief The trial court did not abuse its discretion in admitting statements made by Appellant to law enforcement.  Trial court’s order denying motion in limine affirmed.  Jeffrey L. Simpson, et al. v. City of Port Richey, No. 07-CA-000624-WS (Fla. 6th Cir. App. Ct. July 27, 2011).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

JEFFREY L. SIMPSON, LAURIE L. SIMPSON,

RICHARD R. STOUT, NANETTE STOUT,

ELOISE TAYLOR, JAMES P. HOSTER,

And JANE HOSTER,       

                        Petitioners,

 

v.                                                                                 Appeal No:     51-2007-CA000624-WS/P

                                                                                   

 

CITY OF PORT RICHEY,                                        

                        Respondent.                                                 

______________________________________/

 

Motion for Rehearing Denial of First Motion for Rehearing

On Dismissal of Petition for Writ of Certiorari

 

Eloise Taylor, Esq.

for Petitioners

 

Michael J. Brannigan, Esq. 

for Respondent

 

 

ORDER DENYING PETITIONERS’ SECOND MOTION FOR REHEARING

 

On February 8, 2007, Petitioners filed a Petition for Writ of Certiorari, arguing that Port Richey failed to provide due process and base its decision on substantial, competent evidence when it granted the preliminary plat approval for a small subdivision called “Limestone Estates,” a small seven-unit subdivision on the north side of Limestone Drive in Port Richey.  Their Petition for Writ of Certiorari was amended on June 8, 2007.  This Court dismissed Petitioners’ Petition for Writ of Certiorari, on September 23, 2008, finding that Petitioners’ argument was not properly addressed in a certiorari petition, but in an action pursuant to Florida Statute 163.3215, as outlined in Martin County v. Yusem, 690 So. 2d 1288 (Fla. 1997).  On October 8, 2008, Petitioners’ filed a motion for rehearing or clarification, arguing that Yusem was not on point.  This Court ordered supplemental briefing on the limited issues of those that were not exclusively reviewable by an action under Section 163.3215.  After reviewing the extensive record, case law, and briefs, this Court entered an order denying Petitioners’ motion for rehearing or clarification on April 1, 2011. 

Petitioners filed a second motion for rehearing on the order denying their previous motion for rehearing, on April 12, 2011.  Petitioners argue that they were not provided an opportunity to file a reply to their supplemental brief, which was already limited on the issues and length by this Court, and that their motion for oral argument was not granted.  Petitioners also made legal arguments as to the role and responsibility of the Planning and Zoning Board. 

Respondent filed their response in opposition to Petitioners’ second motion for rehearing, on April 26, 2011.  Respondent pointed that this case was about five years old and had been extensively and zealously litigated.  This Court had heard, ruled, re-heard, and re-ruled on this issue, and the matter had been decided.  Respondent argued that the parties must be able to rely on the decisions of this Court and that further appellate action should be properly taken before the Second District Court of Appeal. 

This Court finds that Petitioners’ motion for rehearing on the order denying their previous motion for rehearing or clarification should be denied on procedural grounds.  Florida Rule of Appellate Procedure 9.330(b) clearly states that “[a] party shall not file more than 1 motion for rehearing or for clarification of a decision and 1 motion for certification with respect to a particular decision.”  Petitioners have already filed a motion for rehearing or clarification on October 8, 2008, which was denied by this Court on April 1, 2011.  Petitioners have also overlooked the fact that the heading of the order and opinion denying their motion for rehearing did not contain the necessary language for this court to allow a second rehearing: “NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.”  Petitioners’ second motion for rehearing must be denied.  Therefore, it is 

 

 

ORDERED AND ADJUDGED that the Petitioner’s Second Motion for Rehearing or Clarification is DENIED.    

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 27th day of July 2011.

Original order entered on July 27, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.