
    Thomas P. RAHAIM, Appellant, v. CITY OF JACKSONVILLE, Appellee.
    No. BM-433.
    District Court of Appeal of Florida, First District.
    March 18, 1987.
    Daniel D. Richardson, Jacksonville, for appellant.
    William Lee Allen, Jacksonville, for ap-pellee.
   PER CURIAM.

Thomas P. Rahaim appeals a nonfinal order granting the City of Jacksonville a temporary injunction enjoining him from obstructing a natural drainageway. Ra-haim argues (1) that section 614.116(a), Ordinance Code of the City of Jacksonville, is unconstitutionally vague and ambiguous; and (2) that the city failed to prove a violation of section 614.116(a) because it did not offer any evidence that the notice of the obstruction was from or at the direction of the director of public works.

Section 614.116(a), Ordinance Code of the City of Jacksonville, provides:

[I]n the absence of a permit issued by the Director of Public Works, it shall be unlawful for an owner ... of real property within the City to construct, allow or permit an obstruction to the flow of water, including logs, landfills, dams, partial dams, leaves, trash, building materials and garbage, to remain in a natural or artificial waterway or drainageway or their adjacent floodplains on the property for more than ten days after having received actual or constructive notice of the existence of the obstruction upon the property by certified mail or personal service from or at the direction of the Director of Public Works.

(Emphasis added). The notice of violation received by Rahaim was signed by Marvin Boutwell, a city engineer. There is no evidence in the record, nor was evidence presented at the hearing, that this notice was given by or at the direction of the director of public works or that this duty had been lawfully delegated to the city engineer. Since the notice given Rahaim did not comply with the requirements of the code, the city failed to prove an essential element of its cause of action. Therefore, the order is reversed.

We find it unnecessary to reach appellant’s constitutional argument.

The city contends for the first time on appeal that even if the ordinance is unconstitutional or that proper notice of violation of the ordinance was not given, nevertheless the temporary injunction can be supported “as based upon the creation and maintenance by RAHAIM of a public nuisance.” No allegation appears in the pleadings before the trial court at the preliminary hearing raising this issue. Rather, the city relies entirely on provisions of rule 1.190(b), Florida Rules of Civil Procedure, that “when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” But the city points only to testimony of property owners regarding effects of the flooding on their properties as a basis for implying such consent. Since that evidence was admissible as relevant proof of the violation of the ordinance and need for immediate injunctive relief, it is not appropriate to imply therefrom a consent to try other issues not pleaded. An appellate court is especially precluded from doing so where the trial court has neither been moved to amend the issues under the cited rule nor otherwise ruled that such unpleaded issues were tried by implication.

REVERSED.

SHIVERS and ZEHMER, JJ., concur.

SMITH, J., dissents with written opinion.

SMITH, Judge,

dissents with opinion.

I agree with the city’s contention that the evidence before the trial court, viewed in the light most favorable to the city, was sufficient to justify issuance of a temporary injunction on public nuisance grounds. Although the complaint filed by the city apparently relied on the terms of its ordinance in seeking to alleviate the flooding conditions caused by appellant’s blocking of a natural water drainage way, the city’s entitlement to relief should be determined from the factual circumstances disclosed by the complaint and established by proof rather than whether the complaint expressly categorized the damage created by appellant as a public nuisance. Philbrick v. City of Miami Beach, 147 Fla. 538, 3 So.2d 144 (1941).

I find nothing in the arguments to the court below to substantiate appellant’s claim that he was not fully apprised of the basis for the city’s claims or that he was in any respect prejudiced in his defense by reason of any defect in the notice given by the city under the ordinance or otherwise. As a practical matter, the city’s opening statement to the court at trial accurately summarized the city’s position and gave ample notice of the issues before the court, which were then actually tried by the parties. The city attorney stated:

This is a case in which the City of Jacksonville seeks an injunction against the defendant in this case for obstructing a natural drainage so that water stands in the drainage swells [sic] on both sides of Hood Landing Road and damages the roadway and inundates the driveways of various people who live in the vicinity of where the drainage is obstructed so that they cannot use their toilets because their septic tanks are flooded.
And evidence will also show that there is one elderly lady who is obstructed from getting in and out of her own driveway and getting her mail and other things.

There was no objection to this statement and no statement whatever by appellant’s counsel indicating a different view of the issues.

Admittedly, the evidence before the trial court was conflicting on the question of causation, on the extent to which appellant altered the topography of the area in question, and when such changes were made. These issues were for resolution by the trial judge, who had all the witnesses and exhibits before her at the hearing. The trial court’s decision arrives here clothed with the presumption of correctness, and the order for temporary injunction was clearly justified, based on witnesses presented by the city, in order to return the parties and the area to the status quo pending a final resolution of the controversy.  