Opinion
No. 83-1078.
August 4, 1983.
Petition from the Circuit Judge, Seventh Judicial Circuit, Flagler County.
Irwin A. Connelly, Bunnell, for petitioner.
No appearance for respondents.
Claiming that the circuit court has erroneously refused to accept jurisdiction and act in a cause initiated by petitioner's filing of a complaint for injunctive relief, petitioner seeks a writ of mandamus from this court. The circuit court has granted a defense motion to dismiss with permission for petitioner to file an amended complaint. Although the granted motion to dismiss is captioned "Motion to Dismiss for Lack of Jurisdiction" the substantive matters urged in said motion can well be viewed as merely a motion to dismiss the complaint because of its failure to state a cause of action in that it fails to allege certain matters asserted to be essential conditions precedent to the granting of injunctive relief under the facts alleged in the complaint. The circuit court has exercised its jurisdiction in ruling on the motion to dismiss and has made no final judicial determination that it lacks jurisdiction over the subject matter of the controversy or the parties thereto. The circuit court has acted on all matters before it and has merely dismissed petitioner's complaint with leave to amend. The circuit court has not dismissed the cause nor has it indicated it will not further exercise its proper jurisdiction in the further progress of the cause which is still pending in the circuit court. Accordingly, the petition for the writ of mandamus is premature and it is hereby
DENIED.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.