Green v. Peters

• Decision Date: 13 April 1962
• Docket Number: No. 3052,3052
• Citation: 140 So.2d 601
• Parties: Ray E. GREEN, as Comptroller of the State of Florida, and W. Herman Meeks, Jr., as Tax Collector of Broward County, Florida, Appellants, v. Frederick C. PETERS et al., Appellees.
• Court: Florida District Court of Appeals

Page 601

140 So.2d 601

Ray E. GREEN, as Comptroller of the State of Florida, and W. Herman Meeks, Jr., as Tax Collector of Broward County, Florida, Appellants, v. Frederick C. PETERS et al., Appellees.

No. 3052.

District Court of Appeal of Florida, Second District.

April 13, 1962.

Rehearing Denied May 15, 1962.

Chancey & Chancey, Ross, Norman & Cory, and John U. Lloyd, Fort Lauderdale, for appellants.

McCune, Hiaasen, Crum & Ferris, Fort Lauderdale, for appellees.

SMITH, Judge.

This is an interlocutory appeal from an order amending the complaint, summons and sheriff's return. The amendment inserted the word 'as', immediately following the words 'Ray E. Green' and immediately prior to the words 'Comptroller of the State of Florida.'

The appellees, as plaintiffs, filed their complaint in great length making numerous assaults upon the 1961 Tax Assessment Roll of Broward County. The allegations of the complaint were to the effect that numerous statutes of the State pertaining to the assessment of these taxes were unconstitutional, as well as alleging that the tax assessment roll was, in numerous respects, not prepared in accordance with the statutes. The appellees have filed their motion to quash and motion to dismiss the appeal on the grounds that this court does not have jurisdiction. In view of the fact that Florida Appellate Rule 2.1, subd. a(5)(d), 31 F.S.A. provides that: 'When the jurisdiction of an appellate court has been improvidently invoked, that court may of its own motion or on motion of either party to the cause enter an order transferring it to the court having jurisdiction'; the motion to quash and motion to dismiss are not in order, however, and prior to consideration of the merits, we must determine the question of our jurisdiction.

Insofar as pertinent here, the controlling provisions of the Constitution are as follows:

Article V, Section 4(2), F.S.A.:

'Appeals from trial courts may be taken directly to the supreme court * * * only from * * * decrees directly passing upon the validity of a state statute * * * or construing a controlling provision of the Florida or federal constitution. * * * The supreme court may directly review by certiorari interlocutory * * * decrees passing upon chancery matters which upon a final decree would be directly appealable to the supreme court. * * *'

Article V, Section 5(3):

'Appeals from trial courts * * * may be taken to the court of appeal * * * from all * * * decrees except those from which appeals may be taken direct to the supreme court * * *.'

The fact that a complaint prays for a decree directly passing upon the validity of numerous state statutes and construing alleged controlling provisions of the Florida Constitution does not ipso facto mean that any decree entered in such a cause has directly passed upon the validity of a state statute or construed a controlling provision of the constitution. The decree appealed from neither directly passed upon the validity of a state statute, nor did it construe a controlling provision of the Florida Constitution as was the fact in City of Miami v. Aronovitz, Fla.1959, 114 So.2d 784. Neither can we say that the decree appealed from 'was nevertheless an interlocutory step in a proceeding in which the ultimate determination of the validity of the statute involved is absolutely inescapable,' as were the facts in Cramp v. Board of Public Instruction of Orange County, Fla.1960, 118 So.2d 541. In view of the allegations of the complaint seeking relief by a decree which could grant the relief sought without directly passing upon the validity of a state statute or construing a controlling provision of the Florida Constitution, we cannot say that if a 'decree were rendered upon the complaint as framed, it would inevitably require the trial court to pass directly upon a state statute and conceivably construe a controlling provision of * * * State Constitutions,' as were the facts in Odham v. Foremost Dairies, Inc., Fla.1961, 128 So.2d 586. Precedent firmly establishes the proposition that the decree of any court will not directly pass upon the validity of a state statute nor construe a controlling provision of the Florida Constitution if the case at bar may be determined on other basis. State v. Bruno, Fla.1958, 104 So.2d 588. A constitutional issue raised by pleadings may become immaterial to the disposition of the litigation. Moffett v. Ashby, Supreme Court of Florida, 139 So.2d 133. We, therefore, find that we have jurisdiction.

The Comptroller contends, in effect, that Ray E. Green was sued as an individual and not in his representative capacity and that the Comptroller was an indispensable party and that the order permitting the amendment was entered after the statutory time for instituting such a suit had expired and the court was, therefore, without jurisdiction to enter that order. The defendant, W. Herman Meeks, Jr., as Tax Collector of Broward County, Florida, filed his joinder in appeal, to which the appellees object, contending that a party may not file a joinder in appeal in an interlocutory appeal. This contention is without merit. Florida Appellate Rule 4.2 establishes the practice and procedure on interlocutory appeals and provides that except as modified by that Rule, the other Rules apply to interlocutory appeals. One of the other Rules thereby so applying is Rule 3.11, subd. b permitting joinder in appeal.

The complaint alleges that the defendant, Ray E. Green, is the duly elected, qualified and acting Comptroller of the State of Florida and that he is made a party defendant by virtue of the provisions of Section 196.14, Florida Statutes, F.S.A. The summons was directed to the defendant, Ray E. Green, Comptroller of the State of Florida, Tallahassee, Florida. The sheriff's return certifies service on Ray E. Green, Comptroller of the State of Florida, the within named defendant, by delivery of a copy of the writ and a copy of the complaint. Upon motion to dismiss, the court held that the designation of the defendant, Ray E. Green, Comptroller of the State of Florida, is merely descriptio personae and granted the motion, citing Thomas v. Martin, 1930, 100 Fla. 146, 129 So. 602, and suggested that this be cured by stipulation for an amendment (to which the Comptroller did not agree) and with leave to the plaintiffs to amend their complaint as to that defendant within fifteen days. In the interim, the court had dismissed the cause as to W. Herman Meeks, Jr., individually, and granted his petition to intervene as Tax...