Conner v. Mid-Florida Growers, Inc.

• Decision Date: 31 March 1989
• Docket Number: MID-FLORIDA,No. 89-00081,89-00081
• Citation: 541 So.2d 1252,14 Fla. L. Weekly 826
• Court: Florida District Court of Appeals
• Parties: 14 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.

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.

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 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 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, as appellees correctly point out, a state official may be compelled to issue the necessary vouchers authorizing the Comptroller to pay obligations incurred by the official or his agency. State Road Department v. Bankers Life and Casualty Co., 166 So.2d 234 (Fla. 3d DCA 1964). We have no reason to presume that the Comptroller would dishonor such a request from the commissioner, especially where the latter is acting under court order. Even if appellees and the trial court are otherwise correct about the department's ability to pay the contested sums and its deliberate refusal to try and locate available sources of compensation, no lawful duty on the part of the Comptroller has yet arisen, hence no requirement to subject him to mandamus proceedings. If, after remand, the trial court requires performance by Conner of acts outside the scope of his authority, that matter would be appropriate for further appellate review. See State ex rel. Walker v. Best, 121 Fla. 304, 163 So. 696 (Fla.1935).

We turn, therefore, to that portion of the petition which seeks a writ of certiorari. Here Conner urges us to find that since mandamus is an original proceeding, the procedures set forth in rule 1.630, Florida Rules of Civil Procedure, should have been followed. While we agree with this premise, certiorari is not an appropriate method of review because no irreparable injury has occurred that would not be remediable by plenary appeal. Dairyland Insurance Co. v. McKenzie, 251 So.2d 887 (Fla. 1st DCA 1971). In the present case, however, we have determined that the "writ of mandamus" represents an end to judicial labor in this proceeding except for enforcement where necessary, and is therefore a final, appealable order. ⁶ Warren v. State ex rel. Four Forty, Inc., 76 So.2d 485 (Fla.1954). We therefore proceed as if appellate review had been sought by filing a notice of appeal. See Johnson v. Citizens State Bank, 537 So.2d 96 (Fla.1989); Pearce v. Parsons, 414 So.2d 296 (Fla. 2d DCA 1982).

Upon receipt of a facially sufficient petition for writ of mandamus, a court having jurisdiction to consider such a petition should first issue an alternative writ, which is essentially an order to show cause why the requested relief should not be granted. The present rule 1.630, Florida Rules of Civil Procedure, merely codifies preexisting common law on this subject. See City of Bradenton v. State ex rel. Perry, 118 Fla. 838, 160 So. 506 (1935); Goodrich and Cone, Mandamus in Florida, 4 U.Fla.L.R. 535 (1951). The respondent has the right to plead to the alternative writ and will be prejudiced by the failure to allow a reasonable time within which to do so. Atkins v. State ex rel. Shelton, 136 Fla. 596, 187 So. 363 (1939); Southern Realty and Utilities Corp. v. State ex rel. Goldner, 181 So.2d 552 (Fla. 3d DCA 1966). ⁷

In the present case, instead of issuing an alternative writ and requiring the department to respond to the growers' petition, the court proceeded directly to hear the merits of the petition and to rule forthwith. Appellees argue that notwithstanding lack of strict compliance with rule 1.630 the procedure employed by the trial court was proper and fair. First, they suggest that "if [Conner] really believed this was an original proceeding, he presumably would have filed written defenses to avoid a default"; he chose not to do so and, as a result, there is no showing that the procedure used was prejudicial to either Conner or the department. The function of the alternative writ, appellees suggest, "is simply to advise the recipient that the court has reviewed the petition and found it to state a preliminary basis for relief," and that "the process served on the commissioner here,...