Bell v. Associated Independents, Inc.

• Decision Date: 17 August 1962
• Docket Number: No. 2663,2663
• Citation: 143 So.2d 904,12 A.L.R.3d 847
• Parties: John W. BELL, George C. Petersen, H. V. Saxon, Frank C. Adler and J. Herbert Burke, as the Board of County Commissioners of Broward County, Florida, and the County of Broward, Florida, a Political Subdivision, and Joseph Easthope, for himself and on behalf of all others similarly situated, Appellants, v. ASSOCIATED INDEPENDENTS, INC., a Florida Corporation, and Continental Enterprises, Inc., a Delaware Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 904

143 So.2d 904

12 A.L.R.3d 847

John W. BELL, George C. Petersen, H. V. Saxon, Frank C. Adler and J. Herbert Burke, as the Board of County Commissioners of Broward County, Florida, and the County of Broward, Florida, a Political Subdivision, and Joseph Easthope, for himself and on behalf of all others similarly situated, Appellants, v. ASSOCIATED INDEPENDENTS, INC., a Florida Corporation, and Continental Enterprises, Inc., a Delaware Corporation, Appellees.

No. 2663.

District Court of Appeal of Florida, Second District.

Aug. 17, 1962.

John U. Lloyd and Joseph Easthope, Fort Lauderdale, for appellants.

Reasbeck & Fegers, West Hollywood, for appellee Associated Independents, Inc.

Hugh S. Glickstein of Glickstein, Crenshaw, Glickstein & Hulsey, Fort Lauderdale, for appellee Continental Enterprises, Inc.

WILLSON, J. H., Associate Judge.

The County of Broward, acting by and through its Board of County Commissioners, granted Associated Independents, Inc., formerly known as Affiliated Services, Inc., an exclusive franchise for the collection and disposal of garbage and waste, within that part of Broward County not included within the corporate limits of any city or town. The performance of the obligations of Associated Independents, Inc., under this franchise was unconditionally guaranteed by Continental Enterprises, Inc.

Paragraph 11 of the franchise agreement reads as follows:

'11. It is recognized that the rates hereinabove provided for are based upon cost of operation upon the effective date of this agreement. Affiliated shall not increase the fixed rates hereinabove provided for without the approval of the County and no such increase shall be sought except when made necessary by increased cost of operations nor will an application for increase in rates be made more often than once in any calendar year commencing October 1st during the term of this Agreement. In the event a change in said fixed rates increasing the same is desired by said Affiliated, a petition shall be filed with the County, accompanied by a current comparative cost of operations statement prepared by a Public Accountant certified in the State of Florida, and such other pertinent information as may be required by the Board to make a proper determination of the cost of operation, and, except as hereinafter provided, no such change shall be made without the approval of said petition therefor filed with the Board of County Commissioners of Broward County, Florida requiring such increase. The Board of County Commissioners shall approve or deny any such petition, in whole or in part, within thirty-one (31) calendar days after the date it has been filed in the office of the Clerk of said Board. However, in the absence of any ruling thereon by said Board within said thirty-one (31) day period, said increase shall become effective on the thirty-second (32nd) day after said filing of said written application therefor unless Affiliated shall agree to an extension of said thirty-one (31) day period, time being of the essence. In the event the said Board shall deny the petition, in whole or in part, and Affiliated shall feel aggrieved, then the matter shall be submitted to arbitration in the following manner. An impartial body consisting of three (3) persons shall decide the issue. One of said persons shall be selected by said Board, one by Affiliated, and one not residing or doing business in Broward County, Florida, shall be jointly selected by the Board and Affiliated. In the event Affiliated seeks such arbitration and gives notice in writing to the Board of its selection of a person to serve as an arbitrator and the Board fails or refuses within ten (10) calendar days after receipt of said written notice to name an arbitrator or in the event of the inability of the parties hereto to agree on the third member of said body, then and in either of such events, upon the application of either party hereto, either or both such members of said body shall be designated by the senior judge of the Circuit Court in and for Broward County, Florida, one of whom shall be a resident of Florida but not a resident of Broward County, Florida.

'The successor of any such member of such body who is unable to serve because of death or disqualification shall be named by the party having made said appointment.

'The decision of the majority of said body shall be final and conclusive and shall be effective when reported to the Board of County Commissioners at an adjourned meeting, provided that if the said body fails to reach a decision within thirty (30) days after their appointment, said award shall be deemed to have become effective at the expiration of said thirty (30) days and, provided further, that in the event said award is subsequently modified or decreased in whole or in part Affiliated shall forthwith make such refunds or adjustments as may be required to conform to said order, retroactive to the date said order was deemed to have become effective.

'Said arbitration shall be subject to all provisions of the 'Florida Arbitration Code' not inconsistent with the methods or procedures hereinabove set out.'

In pursuance of the provisions of this paragraph Associated Independents, Inc. filed a petition for a rate increase. A supplement to the petition was filed, and the petition, as supplemented, was denied by the County.

When the rate increase was denied, Associated Independents, Inc., invoked the arbitration provisions of paragraph 11 of the franchise agreement. The County took the initial steps toward arbitration, but then rescinded its action, and instructed its attorney to file a suit in the Circuit Court to determine whether or not the petition for rate increase was sufficient to justify or require it to proceed to arbitration.

The attorney for the County filed an action for declaratory decree. The complaint named John W. Bell, George C. Petersen, H. V. Saxon, Frank C. Adler and J. Herbert Burke, as the Board of County Commissioners of Broward County, Florida; the County of Broward, Florida, a Political Subdivision; and Joseph Easthope, for himself and on behalf of all others similarly situated, as plaintiffs, and Associated Independents, Inc., and Continental Enterprises, Inc., as defendants. The defendants' motion to dismiss this complaint was granted, and an amended complaint was granted. A second amended complaint was then filed and dismissed, on...