Auto Owners Ins. Co. v. Hillsborough County Aviation Authority for Use and Benefit of General Elec. Supply Co.
| Decision Date | 19 April 1963 |
| Docket Number | No. 31810,31810 |
| Citation | 153 So.2d 722 |
| Parties | AUTO OWNERS INSURANCE COMPANY, a corporation, Appellant, v. HILLSBOROUGH COUNTY AVIATION AUTHORITY, a Public Authority for the Use and Benefit of GENERAL ELECTRIC SUPPLY COMPANY, a New York Corporation, and Robert M. Snyder, d/b/a Clearwater Construction Company, Appellees. |
| Court | Florida Supreme Court |
Thomas C. MacDonald, Jr., and Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellant.
Maynard Ramsey, of Bucklew, Ramsey & Stichter, Tampa, for Hillsborough County Aviation Authority, a Public Authority for the use and benefit of General Electric Supply Company, a division of General Electric Company, a New York Corporation.
William P. O'Malley, of Cooper, Rives & Baskin, Clearwater, for Robert M. Snyder, d/b/a Clearwater Construction Company.
By direct appeal we have for review a summary judgment against a contractor and his surety on a public contractor's bond.
The principal question in issue is the constitutionality of Chapter 59-491, Laws of Florida, 1959.
On or about September 1, 1959, and October 7, 1959, appellee Snyder entered into two written contracts with Hillsborough County Aviation Authority. The contractor agreed to furnish labor, materials, supplies, and equipment for the construction of an improvement at Tampa International Airport.
The contractor Snyder likewise executed two performance bonds conditioned upon the prompt payment of all persons supplying the contractor with labor, material and supplies used directly or indirectly by the said contractor or any subcontractor in the prosecution of the work required by the contracts. Appellee General Electric Company supplied certain materials to a subcontractor who defaulted. The last materials were furnished in December 1959. On June 7, 1961, the Hillsborough County Aviation Authority for the use of General Electric filed suit to recover the value of the supplies theretofore furnished to the subcontractor. The suit was against the contractor Snyder and Auto Owners Insurance Company, the surety on his performance bonds. On November 29, 1961, General Electric sought to amend its complaint in order to base its claim on both of the bonds. The motion to amend was met by the contention of the defendants that suit was barred by a one-year statute of limitations prescribed by Chapter 59-491, Laws of Florida, 1959. The trial judge allowed the amendment and by his order specifically held the statute unconstitutional. A summary judgment in favor of the use plaintiff followed. The cause reaches us by a notice of appeal directed to the summary judgment.
We comment briefly on the matter of our jurisdiction. While the summary judgment is styled a 'partial summary judgment' it obviously disposed of the cause in a manner which evidenced a completion of the judicial labor. We have, therefore, treated it as a summary final judgment.
Appellee Snyder raises a jurisdictional question to the effect that inasmuch as the summary judgment itself did not contain a finding regarding the invalidity of the statute, this appeal should be heard by the District Court instead of the Supreme Court. The contention overlooks the fact that by the interlocutory order the trial judge explicitly held the statute to be unconstitutional. This interlocutory order is a part of the record for review on appeal and becomes an aspect of our appellate consideration of the final judgment and the interlocutory orders which produced it. Rule 4.2, Florida Appellate Rules, 31 F.S.A. The appeal from the final judgment brings up for review all interlocutory orders entered as a necessary step in the proceeding. Huie v. State, Fla., 92 So.2d 264. To this extent the order of the trial judge on the invalidity of the statute was final in the sense that it would be subject to review here as an aspect of the final adjudication of the cause. Cf. Davis et al. v. State, Fla., 146 So.2d 892.
Appellee Snyder, in effect, assumes the role of an appellant because his interests are in common with those of the appellant Auto Owners Insurance Company which instituted the appeal to this Court. Snyder suggests that the use plaintiff was estopped to assert the unconstitutionality of Chapter 59-491, supra, which was enacted as an amendment to Section 255.05, Florida Statutes, F.S.A. He grounds his position on the fact that the use plaintiff relied on the original portion of Section 255.05, supra, in bringing the action. The record reveals that Snyder himself had asserted, at an earlier hearing, the unconstitutionality of the entire statute because of the invalidity of Chapter 59-491, supra. There is no estoppel. The reason is that the use plaintiff relief on a portion of the statute which it had not attacked. The provisions which were later assaulted were contained in the amendment to the statute and were never employed by the use plaintiff as the basis of its complaint.
We reach the essential question. Is Chapter 50-491, supra, constitutional?
The first unnumbered paragraph of Section 255.05, Florida Statutes, requires a contractor who agrees to construct or repair a public building to file a performance bond which, among other things, shall include an obligation 'that such contractor shall promptly make payments to all persons supplying him labor, material and supplies, used directly or indirectly by the said contractor, or subcontractors, in the prosecution of the work provided for in said contract; * * *.' Chapter 59-491, Laws of Florida, 1959, purports to be an amendment to the above summarized portion of Section 255.05, supra. For clarity of understanding the assault on the constitutionality of Chapter 59-491, supra, we publish it in full. Omitting the title and enacting clause, the statute reads as follows:
'255.05 Bond of contractor constructing public buildings; suit by materialman, etc.----
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