Byrd v. City of Niceville

• Decision Date: 23 March 1989
• Docket Number: No. 88-1704,88-1704
• Citation: 14 Fla. L. Weekly 738,541 So.2d 696
• Parties: 14 Fla. L. Weekly 738 D.L. BYRD, Y.P. Byrd, C.J. Pinkston, R.K. Pinkston, and Warner Cable Communications Inc., a Delaware corporation, Appellants, v. CITY OF NICEVILLE, a municipal corporation, and Cosmic Communications, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 696

541 So.2d 696

14 Fla. L. Weekly 738

D.L. BYRD, Y.P. Byrd, C.J. Pinkston, R.K. Pinkston, and Warner Cable Communications Inc., a Delaware corporation, Appellants, v. CITY OF NICEVILLE, a municipal corporation, and Cosmic Communications, Inc., a Florida corporation, Appellees.

No. 88-1704.

District Court of Appeal of Florida,

First District.

March 23, 1989.

Rehearing Denied April 28, 1989.

Ralph A. Peterson, of Beggs & Lane, Pensacola, and James E. Moore, of Moore & Moore, P.A., Niceville, for appellants.

Gillis F. Powell, Sr., of Powell, Powell & Powell, Niceville, and William D. Wells and Don J. Caton, Pensacola, for appellees.

WIGGINTON, Judge.

Appellants appeal an order granting appellees' motion to dismiss appellants' 17-count first amended complaint which sought injunctive and declaratory relief, determination of constitutional rights, damages, and inverse condemnation in a cable T.V. dispute. We affirm in part and reverse in part.

In response to this Court's inquiry as to whether the order is appealable, all parties have taken the position that the order, which is entitled "Order Granting Defendants' Motion to Dismiss" is, in fact, an order dismissing every count of the complaint; consequently, as an order dismissing the complaint, the order is an appealable final order. See Board of County Commissioners of Madison County v. Grice, 438 So.2d 392 (Fla.1983) and Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980). We accept the parties' analysis of the posture of the order on appeal and determine that we do have jurisdiction as the appeal is from a final order.

As to appellants D.L. Byrd, Y.P. Byrd, C.J. Pinkston, and R.K. Pinkston, who apparently are employees or spouses of employees of appellant Warner, the trial judge dismissed the complaint for lack of standing. Since the Byrds and Pinkstons failed to allege anywhere in the complaint any particular, specific injury to them, we determine that they have not laid a proper predicate to show that they have standing to participate in this action. See Williams v. Howard, 329 So.2d 277 (Fla.1976), Okaloosa Island Leaseholders Association, Inc. v. Okaloosa Island Authority, 308 So.2d 120 (Fla. 1st DCA 1975), and Department of Revenue v. Markham, 396 So.2d 1120 (Fla.1981). Therefore, we affirm the trial court's dismissal of the complaint as to the appellants Byrds and Pinkstons.

This suit is one action in extensive litigation brought by appellant Warner challenging the city's attempt to establish a city-owned cable T.V. system. Warner holds a 15-year franchise granted by the city to provide nonexclusive cable T.V. services within the city. Due in part to consumer complaints within the city regarding Warner's services, and in light of the fact that the Federal Cable Communications Policy Act of 1984 [47 U.S.C. §§ 521 et seq.] authorizes local government ownership of cable T.V. systems, the city examined the possibility of constructing its own system. During that study, the city commissioned appellee Cosmic (another cable T.V. operator with an inactive franchise) to perform a financial feasibility study. As a result, in October 1985, the city enacted ordinance 583 which provided for the issuance of revenue bonds not exceeding two million dollars for the purpose of constructing and operating a city-owned cable T.V. system. Thereafter, the city filed a bond validation petition in the circuit court and Warner was allowed to intervene in that action. Meanwhile, in November 1985, Warner filed a federal court action raising constitutional and federal statutory claims in regard to the City's enactment of ordinance 583 and its pursuance of a city-owned system.

In August 1987, the circuit court entered a final judgment in the bond validation proceeding, determining: the city is authorized to construct a cable T.V. system; ordinance 583 was duly enacted in accordance with both the 1955 and the 1985 city charters; the project constitutes a valid public purpose; neither the actions taken by the city nor the provisions of the Federal Cable Communications Policy Act of 1984 preclude the city from issuing the bonds; no showing was made that the bonds constitute a pledge of public credit; the evidence proffered by Warner primarily concerns the subjects of political, financial, or economic feasibility, need, and necessity of the project and business policy and judgment, which were not shown to be due to fraud or violation of a legal duty by the city and are matters beyond the scope of a bond validation proceeding; it is proper for a city to engage in private business even though it may compete with other privately owned businesses providing similar services; the ordinance provides...