Coast Cities Coaches, Inc. v. Dade County, s. 33971

• Decision Date: 07 July 1965
• Docket Number: Nos. 33971,33977,s. 33971
• Citation: 178 So.2d 703
• Parties: COAST CITIES COACHES, INC., a Florida corporation, Appellant, North Dade Transit Company, Inc., Edna R. Hickling, as Administratrix of the Estate of Fred L. Hickling, Deceased, and Nelson Whyte, Intervening Appellants, v. DADE COUNTY, A political subdivision of the State of Florida, Appellee.
• Court: Florida Supreme Court

Page 703

178 So.2d 703

61 P.U.R.3d 221

COAST CITIES COACHES, INC., a Florida corporation, Appellant North Dade Transit Company, Inc., Edna R. Hickling, as Administratrix of the Estate of Fred L. Hickling, Deceased, and Nelson Whyte, Intervening Appellants, v. DADE COUNTY, A political subdivision of the State of Florida, Appellee.

Nos. 33971, 33977.

Supreme Court of Florida.

July 7, 1965.

Rehearing Denied Oct. 21, 1965.

Shutts, Bowen, Simmons, Prevatt, Boureau & White and Jeptha P. Marchant, Miami, for Coast Cities Coaches, Inc., appellant.

Thomas H. Anderson and Anderson & Nadeau, Miami, for North Dade Transit Company, Inc., S. Grover Morrow, Miami, for Edna R. Hickling, as Administratrix of the Estate of Fred L. Hickling, deceased, and Marchant & Perkins, Miami, for Nelson L. Whyte, intervening appellants.

Thomas C. Britton, County Atty., and Clyde Trammell, Jr., Asst. County Atty., for appellee.

McCORD, GUYTE P., JR., Circuit Judge.

This case is on appeal from a summary final declaratory decree of the Circuit Court of Dade County construing a controlling provision of the Florida Constitution.

The cause arose in the Circuit Court by a complaint for declaratory decree filed September 18, 1964, wherein appellee, Dade County, plaintiff below, sought a decree declaring whether Dade County may extend its bus transportation service in competition with service provided by the appellant, defendant below, Coast Cities Coaches, Inc., (hereinafter sometimes referred to as Coast Cities) without obligation to compensate appellant, and if such an obligation exists, a declaration as to the elements and measure of same. Coast Cities is a motor carrier operating in local transit, in the northern part of Dade County and extending into downtown Miami. It operates under a certificate of public convenience and necessity issued by the Florida Public Utilities Commission under Chapter 323, Florida Statutes.

Motion to dismiss was filed by Coast Cities and thereafter Dade County filed a motion for summary final decree and pursuant to due notice to all parties, a hearing on both motions was held before the chancellor on October 30, 1964. By order dated November 18, 1964, the Circuit Court granted petitions to intervene of Edna R. Hickling (as administratrix of the estate of Fred L. Hickling, deceased), Nelson L. Whyte, and North Dade Transit Company, Inc., (hereinafter sometimes referred to as Hickling, Whyte and North Dade, respectively). Hickling and Whyte have a contractual interest in Coast Cities, and North Dade, like Coast Cities, is a motor carrier operating in the northern part of Dade County under certificate of public convenience and necessity issued by the Florida Public Utilities Commission.

On December 30, 1964, the court below entered summary final declaratory decree wherein it denied the motion to dismiss of Coast Cities and ruled that Dade County possesses the power, privilege and right to extend its bus transportation system into and through part, or all, of the area in which Coast Cities is presently operating in Dade County and may do so in competition with Coast Cities without any obligation to compensate it for such action.

We must consider initially a question of procedure--whether or not a summary declaratory decree can be entered on plaintiff's motion therefor prior to the defendant filing answer. This is answered in the affirmative, with the qualification that to grant same it must be clear from the pleadings, depositions, admissions and affidavits on file that there can be no genuine issue as to any material fact and the moving party is entitled to the declaration sought as a matter of law. Rule 1.36(a), Florida Rules of Civil Procedure, 30 F.S.A., provides, in part, as follows:

'(a) For Claimant. A party seeking to recover upon a claim, counterclaim or cross-claim or to obtain a declaratory judgment or decree may, at any time after the expiration of 20 days from the commencement of the action * * * move with or without supporting affidavits for a summary judgment or decree in his favor upon all or any part thereof.' (Emphasis supplied)

The foregoing is patterned after and is substantially the same as Federal Rule of Civil Procedure 56(a). The federal decisions uniformly hold that a plaintiff need not wait for a defendant to file answer before moving for summary decree. See Annotation, 85 A.L.R.2d 825. Although this court has not previously ruled on this question, the First and Third District Courts of Appeal have had the question before them and have ruled as above stated. See Olin's, Inc. v. Avis Rental Car System, Fla.App., 105 So.2d 497; Goldstein v. Florida Fishermen's Supply Co., Fla.App., 116 So.2d 453; Lehew v. Larson, Fla.App., 124 So.2d 872, 85 A.L.R.2d 821; Coast Cities Coaches, Inc. v. Whyte, Fla.App., 130 So.2d 121. Initially, both the federal rules and the Florida rules specifically required the filing of an answer before a motion for summary judgment or decree could be filed, but both were subsequently amended to require only the expiration of 20 days from the commencement of the action. Such a motion is granted with caution, however.

The appellants next contend that this is not a case in which Dade County has any doubt as to its power and authority; that a lack of such doubt is demonstrated by its filing a complaint and then moving for summary decree before answer is filed and therefore declaratory decree will not lie. We find no merit to this contention. Dade County's complaint establishes a sufficient predicate for its doubt as to its power under its Home Rule Charter to extend its bus transportation system into an area of Dade County presently served by Coast Cities. Its right to do so is disputed by appellants. Its filing of the motion for summary decree before answer does not of itself show lack of doubt, though Dade County strongly contends its view of the law is correct. Dade County is not required to first exercise this disputed power and thus precipitate legal action. Intervenor, North Dade, cites Halpert v. Olesky, Fla., 65 So.2d 762 in support of its position, but said case is not parallel to the situation here. Halpert was a suit for declaratory decree predicated on a lease, but no doubt as to construction of the lease was alleged by either party. The only dispute was as to questions of fact and the only relief sought was damages. Plaintiff there simply attempted to convert a legal action for damages for breach of a lease into a suit for declaratory decree.

The next question for consideration is whether or not it was incumbent upon the chancellor to allow the intervening defendants an opportunity to file affidavits in opposition to the motion for summary decree and be heard prior to his ruling thereon. Intervenors contends such failure was a denial of due process. It is settled law, however, that an intervening defendant is bound by the record made at the time that he intervenes and must take the suit as he finds it unless the court, in its discretion, otherwise orders. See Krouse, et al. v. Palmer, et al., 131 Fla. 444, 179 So. 762. Florida Rule of Civil Procedure 3.4, 31 F.S.A. provides as follows:

'Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.'

Intervenor, North Dade, by its petition, merely sought intervention. Intervenors, Whyte and Hickling, sought intervention 'with the same, and equal, status as the present defendant.' The court's order allowing intervention granted the petitions to intervene and allowed the intervening defendants time within which to file defensive pleadings, without comment as to their status defendants. That the time of entry of this order, and the previous filing of the motion to intervene, the court had already heard the motion for summary decree and had the same under advisement. The order allowing intervention was entered on November 18, 1964. The final summary declaratory decree was not entered until December 30, 1964.

It does not appear from the record that the intervening defendants, in the interim, made any effort to be heard on the already submitted motion for summary decree, though they had 40 days after their intervention within which to do so. They apparently considered they were bound by the state of the proceedings at the time they came into the case. The chancellor also, obviously, considered that he had allowed their intervention only on such basis, as he so stated in his final summary decree. There is nothing in the order allowing intervention indicating affirmatively that the chancellor intended to extend its scope beyond that normally allowed by Rule 3.4 and it is conclusive from his final decree that he did not so intend. Furthermore, unless it appears from the record and all of the arguments that have been made, that there can be a genuine issue as to a material fact, it would be a time-consuming, expensive and useless procedure to now send this cause back for intervenors to be heard by the chancellor on this question.

We pass now to the merits of the case. The able chancellor below correctly ruled that Dade County possesses the power, privilege and right to extend its bus transportation system into and through part, or all, of the area within which Coast Cities is presently operating in Dade County, and that it may do so in competition with Coast Cities without any obligation to compensate for such action.

We have carefully considered the record that was before the chancellor and the briefs and arguments here. There is no genuine issue as to a material fact and the question is one only of law.

Appellants first contend that rights conferred by a certificate of public convenience and necessity issued under state law may not be impaired by Dade County under its Home Rule...