Carol City Utilities, Inc. v. Dade County, 65-636

• Decision Date: 01 February 1966
• Docket Number: No. 65-636,65-636
• Citation: 183 So.2d 227
• Parties: CAROL CITY UTILITIES, INC., a Florida corporation, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Thomas F. Carney, Bernard Janis, Floyd Kemp, William H. Merriam, Jr., and Earl Kehoe, each individually and as a claimant to the office of member of and as the persons collectively purporting to constitute and act as the Metropolitan Dade County Water and Sewer Board, Appellees.
• Court: Florida District Court of Appeals

Page 227

183 So.2d 227

CAROL CITY UTILITIES, INC., a Florida corporation, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Thomas F. Carney, Bernard Janis, Floyd Kemp, William H. Merriam, Jr., and Earl Kehoe, each individually and as a claimant to the office of member of and as the persons collectively purporting to constitute and act as the Metropolitan Dade County Water and Sewer Board, Appellees.

No. 65-636.

District Court of Appeal of Florida, Third District.

Feb. 1, 1966.

Rehearing Denied March 9, 1966.

Walton, Lantaff, Schroeder, Atkins, Carson & Wahl and James Knight, Miami, for appellant.

Thomas C. Britton, County Atty., for appellees.

Before HENDRY, C. J., and TILLMAN PEARSON and CARROLL, JJ.

TILLMAN PEARSON, Judge.

The appellant, Carol City Utilities, Inc., was the plaintiff in an action for declaratory decree against the defendants, Dade County and the Metropolitan Dade County Water and Sewer Board. The Utility sought a declaration by the Court that the Metropolitan ordinance creating the Dade County Water and Sewer Board was an unconstitutional exercise of power by the County. The final decree sustained the appellee's, County's, contention that the matters raised in the complaint were res adjudicata because of a final judgment which had been entered by the Circuit Court in an earlier case. The previous judgment was on a petition for certiorari brought by the plaintiff-Utility against the County and the Board for a review of an administrative order of the Board. The final decree states that even though the trial court finds that the order denying certiorari is res adjudicata as to the issues raised, it still finds for the County upon the merits. We hold that the plea of res adjudicata was inapplicable, but we affirm upon the merits. ¹

The action which was claimed as a bar under the theory of res adjudicata was as follows. The appellant filed a petition for certiorari in the Circuit Court to review an administrative order of the Metropolitan Dade County Water and Sewer Board. When certiorari was denied, the appellant took an appeal to the Supreme Court of Florida which was dismissed without an opinion. Carol City Utilities v. Carney, Fla.1963, 153 So.2d 307.

The appellant, Carol City Utilities, Inc., filed this appeal to the Supreme Court upon the theory that the jurisdiction for the appeal was in the Supreme Court of Florida ² because the final decree construed a controlling provision of the Florida Constitution . The validity of the ordinance and the legal existence of the Board was alleged to be in doubt because of conflicts between the ordinance and (1) the Constitution of the State of Florida; (2) the general laws of the State of Florida; and (3) the Metropolitan Charter of Dade County. The Supreme Court transferred the appeal to this court.

In its brief, filed in the Supreme Court, the County stated:

'The threshold question of res adjudicata does not invoke the Supreme Court's jurisdiction and appeal should have been taken to the District Court, as was done in Green v. Peters, Fla.App.1962, 140 So.2d 601, 603.

'The holding of State v. Bruno, Fla.1958, 104 So.2d 588, 590, stands for the proposition that if the order appealed could have been based on a ground which did not invoke the Supreme Court's jurisdiction, the Court will not take jurisdiction. If, as is the case here, it is already plain that such a ground existed and was acted upon by the lower Court, even if erroneously, this Court ought to refer the cause to the District Court

'In International Hod Carriers v. Heftler Const. Co., Fla.1959, 112 So.2d 848, 852, the Supreme Court declined jurisdiction and transferred the case to the District Court under Rule 2.1(a)(5)(d), because the findings of the Chancellor rendered it unnecessary to construe or interpret a constitutional provision. This is the case here.'

We must presume that the reason for the transfer was a holding by the Court that the question of res adjudicata does not invoke the Supreme Court's jurisdiction.

Upon the defense of 'res adjudicata', the Chancellor found as follows:

'Defendants have pleaded this Order as res adjudicata as to these issues. The plea is sustained. The Order disposed finally of a review through certiorari (Under F.A.R. 4.1 [31 F.S.A.]) by plaintiff of an adverse order entered by the defendant Board. Plaintiff contended there, as here, that the Board lacked legal existence for the same reasons urged here. These contentions were resolved against plaintiff. The Court also concluded that Plaintiff's violation of the applicable rules of procedure would justify denial of the petition. Plaintiff appealed to the Supreme Court without challenging the Circuit Court's procedural holding. Because of this omission, the appeal was dismissed on March 4, 1963, by the Supreme Court. The Order then became final. The dismissal of an appeal does not avoid the plea of res adjudicata. Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934).

'Accordingly, the injunctive relief prayed for by plaintiff in this suit is denied.'

Res adjudicata is not applicable to the facts in this case because the action for declaratory decree is not a suit upon the same cause of action. However, since the substance of the plea, and the ruling by the trial court, is that the plaintiff is precluded from relitigating the issues that were actually decided in the previous suit, we will consider the plea to be estoppel by judgment. See Smith v. Florida East Coast Railway Company, Fla.App.1963, 151 So.2d 70; and Hohweiler v. Hohweiler, Fla.App.1964, 167 So.2d 73, for the distinctions between res adjudicata and estoppel by judgment .

The holding of the Circuit Court upon the denial of the petition for certiorari was as follows:

'Respondents have identified, in their joint brief, eight violations of the Florida Appellate Rules committed by petitioner in its presentation of this matter. These violations dictate denial of the petition under authority of Farina v. Farina, Fla.App.1957, 97 So.2d 485 and Urban v. City of Daytona Beach, Fla.App.1958, 101 So.2d 414.'

Thereafter, the Circuit Court proceeded to discuss the merits of the case.

Upon an appeal to the Supreme Court of Florida, from the order denying certiorari, the appellant, Utility, attempted to argue error upon the Circuit Court's determination of the merits of its petition. In dismissing the appeal, the Supreme Court, in its order, stated:

'The appellees in the above entitled cause have filed a motion to dismiss the appeal herein on the grounds stated in said motion, and upon consideration thereof, it is ordered that said motion be and the same is hereby granted, and the appeal which was entered in this cause in the Circuit Court of Dade County, Florida, at Law, on November 8, 1962, be and the same is hereby dismissed because the Circuit Court of Dade County found that the petition for certiorari was denied because of violation of appellate rules. This ruling was not challenged.' Order of the Supreme Court of Florida, January Term A.D. 1963, Monday, March 4, 1963, Case No. 32,210.

The effect of the Supreme Court's order of dismissal upon the Circuit Court's order denying certiorari was to leave the original order in the same status as if no appeal had been taken. Collins v. Hall, 117 Fla. 282, 157 So. 646, 99 A.L.R. 1086 (1934). Compare Gaskins v. Mack, 91 Fla. 284, 107 So. 918 (1926); Clonts v. Spurway, 104 Fla. 340, 139 So. 896 (1932). Therefore, the Supreme Court's order of dismissal was not a decision upon the merits of the case. Gaskins v. Mack, supra.

It is also well established that an order denying certiorari is not ordinarily determinative of the merits, and that it cannot be used as authority for or against the proposition urged or defended in such proceedings. Southern Bell Telephone & Telegraph Co. v. Bell, Fla.1959, 116 So.2d 617. Since the Circuit Court's denial of the petition for certiorari was primarily based upon a failure to comply with the appellate rules, the statements in its order, which purport to rule upon the constitutional issues, cannot be said to have been an actual decision upon the merits. The appellee contends that a ruling by an appellate court is not dictum merely because it was not necessary. In Parsons v. Federal Realty Corporation, 105 Fla. 105, 143 So. 912, 88 A.L.R. 275 (1931), the Court, at page 920, stated:

'A ruling in a case fully considered and decided by an appellate court is not dictum merely because it was not necessary, on account of one conclusion reached upon one question, to consider another question the decision of which would have controlled the judgment.

'Two or more questions properly arising in a case under the pleadings and proof may be determined, even though either one would dispose of the entire case upon its merits, and neither holding is a dictum, so long as it is properly raised, considered, and determined .'

Since one of the alternative rulings by the Circuit Court was not upon the merits, this principle is not applicable to the order denying certiorari. Therefore, the Chancellor erred in determining that the merits of the cause had been determined by the order denying certiorari.

Having determined that the trial judge erred in sustaining appellees' postion upon the threshold question, we must now proceed to a consideration of the other questions presented on the appeal. As previously pointed out, the trial court decided these questions by reference to a prior holding of another circuit judge and adopted that holding [see Footnote 1, supra]. The record now before us contains, as exhibit to the County's answer to the complaint, a copy of the decision which the present decree adopts. This decision is in part as follows:

'The Dade County Commission was expressly empowered by the Home Rule Charter, Sections 1.01A(9) and (14) to enact an ordinance regulating water and sewage utilities. Petitioner argues that these Charter...