City of Miami v. Miami Transit Co.

• Decision Date: 03 September 1957
• Docket Number: No. 57-46,57-46
• Citation: 96 So.2d 799
• Parties: CITY OF MIAMI, a municipal corporation of the State of Florida, Appellant, v. MIAMI TRANSIT COMPANY, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 799

96 So.2d 799

CITY OF MIAMI, a municipal corporation of the State of Florida, Appellant, v. MIAMI TRANSIT COMPANY, a Florida corporation, Appellee.

No. 57-46.

District Court of Appeal of Florida, Third District.

Sept. 3, 1957.

George S. Okell, Sr., Miami, for appellant.

Worley Gautier & Dawes, and Scott McCarthy Preston Steel & Gilleland, Miami, for appellee.

CARROLL, CHAS., Chief Judge.

City of Miami, the plaintiff below, seeks reversal of a final decree entered in favor of appellee Miami Transit Company, defendant below, in a proceeding for declaratory decree.

The city sued the Transit Company in equity, in the Dade County Circuit Court on November 10, 1954. Its bill of complaint or Petition for Declaratory Decree, as it was entitled, was six pages long with 26 pages of exhibits attached. The city's contention was that in 1949 the Transit Company, without knowledge or consent of the city, had changed its method of computing its gross operating revenues, a percentage of which was payable to the city under its franchise contract with the Transit Company; that the new method was improper under the franchise contract; and that as a result Transit owed the city undetermined additional sums for certain past years, as to which the city prayed for an accounting.

The Transit Company filed a 15 page answer, with 31 pages of exhibits. In substance, the answer admitted the changes in 1949; denied it was without the city's knowledge and consent; insisted on the correctness of the method of computation; denied it was short on its required payments; and averred it had overpaid the city, for the return of which it counterclaimed.

The cause became at issue on February 27, 1955. The city's answer to Transit Company's counterclaim was filed February 7, 1955. Rule 3.8 of the 1954 Florida Rules of Civil Procedure, 31 F.S.A., provides:

'If at the expiration of 20 days from the service of the answer no counterclaim has been filed or, if counterclaim has been filed, then at the expiration of 20 days from the service of the reply thereto, the cause shall be deemed at issue. * * *.'

Rule 3.13 then allowed two months for the taking of testimony. The time for that elapsed the end of April, 1955. On June 14, plaintiff moved for a pre-trial conference, which the court ordered to be held August 10. Following the pre-trial conference, the court made an order reciting that defendant Transit Company, during the pre-trial conference, had moved that the case be heard on bill and answer, and the court ordered that the matter be heard October 4 on bill and answer. By stipulation, the hearing was postponed from October 4 to December 19.

Earlier, on December 5, the city filed a motion for summary final decree, offering certain evidentiary matter, including an affidavit in support of the motion. Defendant objected to that motion on the ground that the time for taking testimony had elapsed and because the court had previously ordered that the cause should be heard on bill and answer.

Following the hearing on bill and answer, the court entered its final decree on January 17, 1956, denying the plaintiff's motion for summary final decree, finding the equities with the defendant Transit Company and dismissing the city's bill, and denying and dismissing the Transit Company's counterclaim with prejudice.

The first question raised by the city on the appeal is stated on page 5 of its brief as follows:

'Equity Rule 3.13 of the 1954 Rules of Civil Procedure limiting time for taking testimony in Chancery causes and thereby requiring the cause to be heard on Bill and Answer is not applicable in actions for Declaratory Judgment or Decree pursuant to Chapter 87, F.S.'

Rule 1.2(c) of 1954 Florida Rules of Civil Procedure, 30 F.S.A., provides: 'Unless otherwise specifically provided by statute, special statutory proceedings shall be entered in the common law docket.'

That follows Rule 1.2(b), which directs the clerk to keep both a common law docket and an equity docket, and says, 'He shall enter all cases as they are commenced in the appropriate docket.'

Appellant points to Rule 1.2(c), and contends that because of it, suits for declaratory decree under Chapter 87, F.S.A., can not properly be filed in equity. We can not agree.

Where the subject matter is of a kind considered acceptable to equity jurisdiction, a complaint or petition for declaratory decree, under Chapter 87, F.S.A., can and should be filed on the equity side of the court. That is shown clearly enough by the wording of the act.

Chapter 87, F.S.A., expressly authorizes 'decrees, judgments or orders.' The permission granted in Section 87.08 for submission to a jury of 'issues of fact triable by a jury', is followed by a provision that it shall not be 'construed as requiring a jury to determine issues of fact in equity cases.' Also, Section 87.11 entitled 'Construction of law', states that the purpose of the chapter is to afford 'relief from insecurity and uncertainty with respect to rights status and other equitable or legal relations.'

And Section 87.12 includes this statement: 'When a suit for declaratory decree is filed as provided in this chapter the court shall have power to give as full and complete equitable relief as it would have had if such proceeding had been instituted as a suit in equity.' [Italics supplied.]

Those references in Chapter 87, F.S.A., to decrees as well as to judgments, and the express provisions concerning equitable rights and equitable relief, indicate that proceedings under the statute may be either legal or equitable. As examples of suits brought under Chapter 87 on the equity side of the court, see Lockleer v. City of West Palm Beach, Fla.1951, 51 So.2d 291; Rosenhouse v. 1950 Spring Term Grand Jury, Fla.1952, 56 So.2d 445; and Taylor v. Cooper, Fla.1952, 604 So.2d 534.

This cause was styled and filed in equity in the circuit court. The City of Miami, as party plaintiff, having elected to submit the proceeding for declaratory decree to the equity court, is in no position now to disclaim its chosen forum. Moreover, the suit was equitable in nature, for an accounting. As this was a suit in equity, the rules for equity suits were applicable, including that limiting the time for taking testimony.

The court properly denied the city's motion for summary final decree. The time for taking testimony had expired, defendant had moved and the court had made provision for a hearing on bill and answer, and the time for such hearing had been set, all prior to the filing by the city of its motion for summary final decree.

When the case of Strong v. Clay, Fla., 54 So.2d 193, was decided in 1951, Equity Rule 46 (1950) was in effect limiting time for testimony to two months. That rule itself was held to be the basis for setting the cause down for final hearing on bill and answer after time for taking testimony had elapsed. Thus, in the Strong case, 54 So.2d at page 195, the court said:

'Under Equity Rule 46, where a cause has not been set for trial before the court, and the court has not entered an order fixing the time within which the testimony of the parties shall be taken, a period of two months from the time the cause is at issue, and no longer is all the time allowed for the taking of testimony. When that period has expired, either party has the right, under Equity Rule 46, to set the cause down for final hearing on the pleadings and thus bring the cause to conclusion. Myers v. Julian, 57 Fla. 493, 48 So. 998; Zewadski v. Dyal, 78 Fla. 109, 82 So. 846; Chatham Investment Co. v. Sunshine Investments, Inc., 98 Fla. 783, 124 So. 374. At such a hearing all the proper allegations of the bill not sufficiently denied by the answer are to be taken as true and all allegations in the answer of new or affirmative matter are to be deemed denied. Moreover, where issues are made by denials in the answer, the decision at the hearing must be against the party who has the burden of proof according to the rules of evidence. See McCarthy, 1931 Florida Chancery Act, Annotation page 95.' [Italics supplied.]

In Muller v. Maxcy, Fla.1954, 74 So.2d 879, 881, the court said:

'* * * After the expiration of the two-months period, the defendant set the cause down for final hearing on the pleadings--bill and answers. They thus became entitled to a decree of dismissal if the facts pleaded in the cause by bill and answers warranted such relief. This was a substantial right of wich the defendants could not be deprived except upon clear grounds of equity and right. Mayfield v. Wernicke Chemical Co., supra [65 Fla. 113, 61 So. 191]; Strong v. Clay, Fla., 54 So.2d 193.'

The situation and procedure as it was under former Equity Rule 46, when time for taking testimony has...