Dade County v. O. K. Auto Parts of Miami

• Decision Date: 20 June 1978
• Docket Number: No. 77-1712,77-1712
• Citation: 360 So.2d 441
• Court: Florida District Court of Appeals
• Parties: DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. O. K. AUTO PARTS OF MIAMI, INC., a Florida Corporation and National IndemnityCompany, a Nebraska Corporation, Appellees.

Page 441

360 So.2d 441

DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. O. K. AUTO PARTS OF MIAMI, INC., a Florida Corporation and National IndemnityCompany, a Nebraska Corporation, Appellees.

No. 77-1712.

District Court of Appeal of Florida, Third District.

June 20, 1978.

Rehearing Denied July 28, 1978.

Stuart L. Simon, County Atty. and James G. Roth, Asst. County Atty., for appellant.

Charles F. Atwood, III, Miami, for appellees.

Before HAVERFIELD, C. J., BARKDULL, J., and PARKER, J. GWYNN (Ret.), Associate Judge.

PER CURIAM.

This is an appeal by Dade County, plaintiff and counter-defendant in the trial court, from a final judgment which resulted in an award of $90,817.00 plus interest of $8,627.62 to the defendant/counter-claimant, O. K. Auto Parts of Miami, Inc. (O. K.). The county asserts that the trial court erred in its award of damages to O. K. and in its award of interest on those damages. We agree and reverse the decision of the trial court on the counterclaim only.

A careful review of the record reveals that the damages awarded to O. K. were speculative in that insufficient evidence was adduced upon which to predicate the award. Itvenus, Inc. v. Poultry, Inc., 258 So.2d 478 (Fla. 3d DCA 1974); Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971); Belcher v. Import Cars, Ltd., 246 So.2d 584 (Fla. 3d DCA 1971).

Additionally, it is the general rule, grounded on public policy considerations, that, in the absence of a statute or an express contract to the contrary, a county is not liable for interest on its obligations. Treadway v. Terrell, 117 Fla. 838, 158 So. 512 (1935); Duval County v. Charleston Engineering & Contracting Company, 101 Fla. 341, 134 So. 509 (1931); Broward County Port Authority v. Arundel Corporation, 206 F.2d 220 (5th Cir. 1953). See generally Annot., 24 A.L.R.2d 928 (1952); 8 Fla.Jur. Counties, Section 99 (1956); 30 Fla.Jur. State of Florida, Sections 50, 51 (1974).

Moreover, counter-claimant admits that to support an award of interest, the amount in question must be liquidated. It is the opinion of this court that the damages awarded to O. K. in this case could not properly be considered as liquidated damages because they were not stipulated at the time of entering the contract as being payable as compensation for injuries in the event of breach.

Although we have concluded that the decision of the trial court must be reversed because of the lack of substantial, competent evidence to support the award of damages and because the court erred in awarding interest on the judgment, we deem it necessary to reach the issue of whether the contract was sufficient to support the counter-claimant's cause of action. We find that the contractual provision upon which O. K. relied to assert its claim was incorrectly construed as an absolute guarantee by the trial court. Reversal is also required as to that element of the decision which found the county liable for damages under the contract.

The background underlying the actions below reveals that, for some years, Dade County had faced the problem of abandoned cars left strewn about the county. In order to alleviate the situation, the county adopted a procedure of contracting with independent towing companies to remove these abandoned hulks. Until 1974, the county had paid the towing companies a fee for each vehicle removed, the yearly contracts having been awarded to that bidder which charged the county the least to perform these services. In 1974, however, the value of scrap metal had risen, and O. K. offered to pay the county $11.00 per car for the exclusive right to tow away cars tagged by the county for removal pursuant to Chapter 705, Florida Statutes (1973). O. K. was awarded the contract as low bidder. The contract was executed on October 25, 1974, to extend through September, 1975, and provided, among other things, that the county would guarantee the contractor a minimum of 14 pickup authorizations a day.

Over the term of the contract, Dade authorized O. K. to pick up over 1500 vehicles, but did not authorize pickups of 14 vehicles a day. While evidence indicated that the contractor's opportunities to remove tagged cars may have been limited both by the action of the county in decreasing the staff assigned to tag the cars for removal and by the actions of other towing companies, O. K. had removed over 650 hulks by the termination date of the contract.

As of March 18, 1975, O. K. had paid the county only $330.00, although it had picked up well over 400 cars. No other monies were remitted by O. K. to the county. On May 8, June 9, and June 16, 1975, the county sent letters to O. K. demanding payment for vehicles actually picked up. On August 29, 1975, the county informed O. K. in a final letter of its intent not to renew the contract and to sue for back payment for vehicles "shown on pick-up lists and which were and will be picked up" through the termination date of the contract. O. K. never responded.

In September, 1975, Dade filed suit for non-performance of contractual obligations. O. K. counterclaimed, alleging that Dade had breached its guarantee of 14 authorizations per day, and seeking damages for anticipated profits based on a minimum of 14 pickups a day.

The trial court awarded Dade $6,842.00 on its claim, and awarded O. K. $97,659.00 on its counterclaim. After setting off the sum due the county from that awarded O. K., the court ordered that O. K. recover the sum of $90,817, plus interest of $8,627.62.

Counter-defendant, Dade County, urges that the guarantee was a nullity, and that even if it was not, O. K. had waived its right to assert non-compliance with the guarantee. We do not agree with Dade's first assertion, but do hold that the guarantee provision, when read in conjunction with the rest of the contract, was not absolute, and that counter-claimant, by its own inaction, waived its right to claim a breach of the...