Conner v. Mid-Florida Growers, Inc., MID-FLORIDA

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Parties14 Fla. L. Weekly 826 Doyle CONNER, as Commissioner of Agriculture of the State of Florida, Department of Agriculture and Consumer Services, Appellant, v.GROWERS, INC., and Himrod & Himrod Citrus Nursery, a partnership composed of Joe Himrod and Joe B. Himrod, Appellees.
Decision Date31 March 1989
Docket NumberMID-FLORIDA,No. 89-00081

Page 1252

541 So.2d 1252
14 Fla. L. Weekly 826
Doyle CONNER, as Commissioner of Agriculture of the State of Florida, Department of Agriculture and Consumer Services, Appellant,
v.
MID-FLORIDA GROWERS, INC., and Himrod & Himrod Citrus Nursery, a partnership composed of Joe Himrod and Joe B. Himrod, Appellees.
No. 89-00081.
District Court of Appeal of Florida,
Second District.
March 31, 1989.

Page 1253

David C.G. Kerr and Susan W. Fox of Macfarlane, Ferguson, Allison & Kelly, Tampa, and Mallory E. Horne and David G. Tucker, of Florida Dept. of Agriculture and Consumer Services, Tallahassee, for appellant.

David K. Miller and M. Stephen Turner of Broad & Cassel, Tallahassee, and Dabney L. Conner of Boswell, Stidham, Conner & Wilson, Bartow, for appellees.

PER CURIAM.

Doyle Conner, as commissioner of the Department of Agriculture and Consumer Services, petitions this court for a writ of

Page 1254

prohibition, or in the alternative a writ of certiorari, to quash a postjudgment order of the circuit court of the Tenth Judicial Circuit. We have determined that while neither prohibition nor certiorari is appropriate under the circumstances of this case, the petition may be treated as an appeal from a final order in mandamus. Art. V, § 2(a), Fla. Const.; Fla.R.App. P. 9.040(c). We further find that the trial court erred in issuing its peremptory writ without following the requirements of rule 1.630, Florida Rules of Civil Procedure, thereby depriving Conner and the department of adequate notice and the opportunity to be heard.

This proceeding arises from the circuit court's attempt at partial enforcement of a judgment entered in favor of appellees Mid-Florida Growers and Himrod and Himrod Citrus Nursery, each of which had sued the department for inverse condemnation. The department appealed the amount of the judgment 1 and, in connection therewith, requested an automatic stay. 2 Fla.R.App. P. 9.310(b)(2). Instead the trial court ordered immediate payment to appellees of part of the judgment and deposit of the remainder into the registry of the court. The first sum represented approximately the amount of damages the department conceded at trial was due the growers. The department sought review of the stay order, but this court concluded that the circuit court had not exceeded its authority in requiring the immediate partial payments notwithstanding the department's decision to appeal the amount of the judgment. Department of Agriculture and Consumer Services v. Mid-Florida Growers, Inc., 532 So.2d 1294 (Fla. 2d DCA 1988). 3

On December 8, 1988, Mid-Florida and Himrod filed in circuit court a petition for writ of mandamus, naming as respondents both the Department of Agriculture and Commissioner Conner and demanding payment of those sums specified in the stay order. The circuit court conducted a hearing on the petition January 4, 1989, and two days later issued the order, styled "writ of mandamus," which Conner now attacks. That order contains numerous findings of fact in support of the trial court's conclusion that the department has "refused to pay any portion of the amounts due," has "offered no assurances of any intention to seek funding to pay these obligations," has had "continuous opportunities to seek funding to pay these uncontested obligations," and should be compelled to tender immediate payment. 4 The court

Page 1255

specifically found that the department's inaction "is deliberate." Based on these findings the circuit court ordered Conner and the department to relinquish the contested amounts immediately or, if unable to do so, to conduct a thorough review of the entire current budget for the department, pay immediately all amounts which can in good faith be made available, and submit a court-approved payment schedule for the remainder. The court reserved jurisdiction "to enforce this writ by contempt proceedings or otherwise."

Conner's petition for prohibition urges us to find that the circuit court was without jurisdiction to entertain the mandamus action. We reject this argument. Notwithstanding the department's appeal the circuit court retained the power to enforce the underlying judgment to the extent it was not stayed. Mandamus has been recognized as an appropriate remedy in such instances, at least where the obligation to pay is, as here, no longer subject to dispute. See, e.g., City of Ocoee v. State ex rel. Harris, 155 Fla. 514, 20 So.2d 674 (1945); Peacock v. State ex rel. American Mortgage and Finance Corp., 122 Fla. 25, 164 So. 680 (1935). Indeed, in this instance it may be the growers' only remedy as long as the department refuses to pay.

Conner next argues that even if a petition for mandamus were appropriate, that petition should have been brought in the circuit court in and for Leon County. 5 However, the case he cites, Mayo v. Market Fruit Co. of Sanford, Inc., 160 Fla. 273, 34 So.2d 543 (1948), simply does not stand for that proposition. Mayo is a pre-A.P.A. administrative appeal wherein a grower sought certiorari review in Seminole County of an order entered by the Department of Agriculture in Tallahassee. Nothing within the text of that opinion or current law precludes any circuit court in this state from assuming jurisdiction over the department for acts occurring within the court's territorial limits. The taking of appellees' property occurred in Hardee County and was properly adjudicated there. A subsequent enforcement proceeding is properly brought in the same venue. Mall Bank v. State ex rel. Department of Insurance, 462 So.2d 519 (Fla. 1st DCA 1985).

Conner also claims that the writ of mandamus seeks to compel actions which he is constitutionally unable to perform because they fall exclusively within the authority of the Comptroller. However,...

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25 practice notes
  • Villa Bellini Ristorante & Lounge, Inc. v. Mancini, Case No. 2D18-2249
    • United States
    • Court of Appeal of Florida (US)
    • November 15, 2019
    ...cause why the writ should not be issued. Moore v. Ake, 693 So. 2d 697, 698 (Fla. 2d DCA 1997) ; Conner v. Mid–Florida Growers, Inc., 541 So. 2d 1252, 1256 (Fla. 2d DCA 1989). If the petition and answer to the alternative writ raise disputed factual issues, the trial court must resolve these......
  • Fla. Dep't of Agric. & Consumer Servs. v. Dolliver, Case No. 2D18-1393
    • United States
    • Court of Appeal of Florida (US)
    • November 13, 2019
    ...1335, 131 So. 122, 123 (1930) ; State v. Tavares & G.R. Co., 78 Fla. 329, 82 So. 833, 835 (1919) ; Conner v. Mid-Fla. Growers, Inc., 541 So. 2d 1252, 1256 n.7 (Fla. 2d DCA 1989). However, the Department has not established that it lacks the ability to satisfy the judgments in full or in par......
  • Holcomb v. Department of Corrections, No. 92-288
    • United States
    • Court of Appeal of Florida (US)
    • December 7, 1992
    ...an order directed to the respondent to show cause why the requested relief should not be granted. Conner v. Mid-Florida Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA1989); Fla.R.Civ.Pro. Once a show cause order has issued, it becomes in all respects the complaint and subject to the same ......
  • Sheley v. Florida Parole Com'n, No. 97-1659
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 1997
    ...Miami Beach v. State ex rel Pickin' Chicken of Lincoln Road, Inc., 129 So.2d 696 (Fla. 3d DCA 1961); Conner v. Mid-Florida Growers Inc., 541 So.2d 1252 (Fla. 2d DCA 1989). These principles cannot be applied in the present case, however, because the petition for writ of mandamus was filed in......
  • Request a trial to view additional results
25 cases
  • Villa Bellini Ristorante & Lounge, Inc. v. Mancini, Case No. 2D18-2249
    • United States
    • Court of Appeal of Florida (US)
    • November 15, 2019
    ...cause why the writ should not be issued. Moore v. Ake, 693 So. 2d 697, 698 (Fla. 2d DCA 1997) ; Conner v. Mid–Florida Growers, Inc., 541 So. 2d 1252, 1256 (Fla. 2d DCA 1989). If the petition and answer to the alternative writ raise disputed factual issues, the trial court must resolve these......
  • Fla. Dep't of Agric. & Consumer Servs. v. Dolliver, Case No. 2D18-1393
    • United States
    • Court of Appeal of Florida (US)
    • November 13, 2019
    ...1335, 131 So. 122, 123 (1930) ; State v. Tavares & G.R. Co., 78 Fla. 329, 82 So. 833, 835 (1919) ; Conner v. Mid-Fla. Growers, Inc., 541 So. 2d 1252, 1256 n.7 (Fla. 2d DCA 1989). However, the Department has not established that it lacks the ability to satisfy the judgments in full or in par......
  • Holcomb v. Department of Corrections, No. 92-288
    • United States
    • Court of Appeal of Florida (US)
    • December 7, 1992
    ...an order directed to the respondent to show cause why the requested relief should not be granted. Conner v. Mid-Florida Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA1989); Fla.R.Civ.Pro. Once a show cause order has issued, it becomes in all respects the complaint and subject to the same ......
  • Sheley v. Florida Parole Com'n, No. 97-1659
    • United States
    • Court of Appeal of Florida (US)
    • December 31, 1997
    ...Miami Beach v. State ex rel Pickin' Chicken of Lincoln Road, Inc., 129 So.2d 696 (Fla. 3d DCA 1961); Conner v. Mid-Florida Growers Inc., 541 So.2d 1252 (Fla. 2d DCA 1989). These principles cannot be applied in the present case, however, because the petition for writ of mandamus was filed in......
  • Request a trial to view additional results

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