Florida Sportservice, Inc. v. City of Miami, 60-126

• Decision Date: 09 June 1960
• Docket Number: No. 60-126,60-126
• Parties: FLORIDA SPORTSERVICE, INC., a Florida corporation, for itself and for all other taxpayers in the City of Miami similarly situated, Appellant, v. CITY OF MIAMI, Florida, a municipal corporation; Robert King High, as Mayor; Robert King High, Fred Davant, George W. DuBreuil, Otis W. Shiver and B. E. Hearn, Sr., as City Commissioners of the City of Miami, Florida, constituting the Mayor and City Commission of the City of Miami, Florida, and Ira F. Willard, as City Manager, and Frand Correll, as City Clerk, Appellees.
• Court: Florida District Court of Appeals

Page 450

121 So.2d 450

FLORIDA SPORTSERVICE, INC., a Florida corporation, for itself and for all other taxpayers in the City of Miami similarly situated, Appellant, v. CITY OF MIAMI, Florida, a municipal corporation; Robert King High, as Mayor; Robert King High, Fred Davant, George W. DuBreuil, Otis W. Shiver and B. E. Hearn, Sr., as City Commissioners of the City of Miami, Florida, constituting the Mayor and City Commission of the City of Miami, Florida, and Ira F. Willard, as City Manager, and Frand Correll, as City Clerk, Appellees.

No. 60-126.

District Court of Appeal of Florida, Third District.

June 9, 1960.

Rehearing Denied July 5, 1960.

Aronovitz, Aronovitz & Haverfield, Miami, and Sibley, Grusmark, Barkdull & King, Miami Beach, and Vincent C. Giblin, Miami, for appellant.

Olavi M. Hendrickson and Jack R. Rice, Jr., Miami, for appellees.

CARROLL, CHAS., Judge.

This is an interlocutory appeal from an order entered in a suit for declaratory decree filed in equity, in the circuit court in Dade County.

The suit was brought by the appellant Florida Sportservice, Inc., against the City of Miami, its governing body, city manager and city clerk, seeking a declaration of its rights under a contract relating to concessions at Miami Stadium.

The chancellor ruled that the contract in question had been terminated as of September 30, 1959, and transferred the cause to the law side of the court, for trial and determination of the remaining amount to which the plaintiff was entitled for reimbursement on its investment in improvements under the terms of the contract. It is to that order of the chancellor that the appeal is directed.

A concession agreement was made in 1949 between the appellant Florida Sportserive, Inc., therein called the Concessionaire, Miami Stadium, Inc., therein called the Owner, and Magic City Baseball Club, Inc., therein called the Club. By purchasing the stadium property, the City succeeded to the rights and obligations of the Owner in 1958. The agreement was to be in effect for ten years, until September 30, 1959.

The first question for determination is whether the 1949 contract should be construed to allow the Concessionaire to have an extension of the contract for two additional years because no baseball team was fielded by the Club during two of the ten years, 1954 and 1955. Basically, the agreement provided that if the Owner should not operate the stadium for any year the Concessionaire could have an additional year after the ten. The Owner operated the stadium, but the Club did not field a team in two of the years. The Concessionaire's rights applied not only to the baseball season but to all other activities which should be held on the stadium premises at any time of the year. In each of the two years when there was no regular baseball team playing its home games there, pre-season major league exhibition baseball games were played and one or more special activities were held, and as to those activities, and any others which could have been held, the concessionaire was entitled to and presumably did exercise its concession rights under the contract.

The question becomes one of construction of the contract, as to whether or not, in a year in which the stadium was otherwise open for operation, it should be considered not operated by the Owner for that year because there was no regular baseball play during the baseball season. The chancellor correctly construed the contract when he held that there had been no showing of a failure of the Owner to operate the stadium during the years in question.

The provision of the agreement conferring the concessions was as follows:

'1. Owner hereby grants unto Concessionaire exclusively all concession rights and privileges at and in conjunction with baseball games and other events conducted in or about the premises known as Miami Stadium, including the exclusive right to sell advertising, refeshments, programs, score cards, magazines, newspapers and other periodicals and the exclusive right to operate Owner's rental concessions, subject to the following provisions and exceptions: * * *'

That provision fixing the ten year term, and the disputed provision with reference to a period in which the Owner should fail to operate the stadium were as follows:

'2. The term of this agreement shall be from the date of execution of same to and including September 30, 1959.

'3. In the event Owner shall fail to operate during any year or years of the term herein contemplated, this agreement will automatically be extended for such year or years as shall equal the yearly period or periods of such suspension of operations by Owner.'

But there was no agreement by the Owner that any particular events would be held in the stadium, and the contract did not include any covenant by the Owner that baseball would be played there during the regular season, nor was such use of the stadium made a condition of the agreement. The Owner complied with the contract when it made the stadium available and provided operation thereof for such special events as should be held there and for baseball.

Appellants argue that although special events in the non-baseball season could be held in the stadium and were included in the agreement, the use for organized baseball in the regular baseball season was the primary purpose of the stadium and such use was expected to produce substantially more revenue than was anticipated from other events there, and for that reason, although the stadium was open for such other events and was available for baseball, it should be...