Killearn Properties, Inc. v. City of Tallahassee

• Decision Date: 17 January 1979
• Docket Number: No. DD-38,DD-38
• Citation: 366 So.2d 172
• Court: Florida District Court of Appeals
• Parties: KILLEARN PROPERTIES, INC., a Florida Corporation and Killearn Homes Association, Inc., a Florida Corporation, not for profit, Appellant, v. CITY OF TALLAHASSEE, a Municipal Corporation, organized and existing under the laws of the State of Florida, Appellee.

Page 172

366 So.2d 172

KILLEARN PROPERTIES, INC., a Florida Corporation and Killearn Homes Association, Inc., a Florida Corporation, not for profit, Appellant, v. CITY OF TALLAHASSEE, a Municipal Corporation, organized and existing under the laws of the State of Florida, Appellee.

No. DD-38.

District Court of Appeal of Florida, First District.

Jan. 17, 1979.

Rehearing Denied Feb. 1, 1979.

Edward S. Jaffry and Mallory E. Horne of Horne, Rhodes, Jaffry, Stephens, Bryan, Horne & Chapman, Frank A. Graham, Jr., Tallahassee, for appellant.

James R. English and Bryan W. Henry, Tallahassee, for appellee.

BOYER, Acting Chief Judge.

The facts of the case are for the most part undisputed. The basic conflict involves an agreement between the City of Tallahassee (hereinafter referred to as City) and Killearn Properties, Inc. (formerly, Killearn Estates) (hereinafter Killearn) whereby the City was to supply street lights and the necessary electrical power therefor to the Killearn subdivision in Leon County, near Tallahassee.

On December 31, 1964, a letter (Plaintiff's Exhibit "A") was sent by Mr. J. T. Williams, President of Killearn Estates, Inc., (the predecessor corporation to appellants, Killearn Properties, Inc.) to the then City Manager, Mr. Arvah Hopkins, regarding the possible installation of street lights and electrical power in the Killearn subdivision. That letter was signed by both Mr. Bill G. Cartee, then the President of Killearn and Mr. Hopkins as City Manager, and included the following paragraph:

"Street lighting will be available in the area and the financial arrangements regarding the number to be furnished by the City will be negotiated in the near future."

Killearn was simultaneously considering obtaining the same services from a competitor of the City, Talquin Electric Corp. The record clearly reveals that both the City and Talquin were competing for the business and that both were willing to negotiate for the privilege of furnishing electricity to the subdivision. In reliance upon the representations and promises of the City, it was chosen to provide the services and in 1965 it installed street lights for which appellant, Killearn Homes Association, Inc., paid until 1968. ¹

Mr. Hopkins, the City Manager, did not have the authority to sign a formal contract for the City, but had the duty to "work these arrangements out and present them to the City Commission."

In mid 1967 or early 1968, Mr. Hopkins arranged for billing of the street lights to cease. Mr. Williams testified that there was no written evidence of that arrangement. His testimony did indicate that he and Mr. Hopkins had planned to adopt a "formula" for street light service.

On November 2, 1967, the City and Killearn reduced to writing the arrangements of December 31, 1964. (Plaintiff's Exhibit "B") That agreement recited that the parties "hereto mutually affirm and ratify each and every of the numbered conditions and agreements entered into on December 31, 1964 . . .". That document bore the signatures of the then Mayor, the Honorable John A. Rudd, Sr., and the then Killearn President, Bill G. Cartee. ²

In March 1970, a memorandum was signed by the City Commissioners (Plaintiff's Exhibit "C"). They did not sign at an open regular meeting, but rather signed sporadically over a period of two days. However, the record reveals that the memorandum was discussed in open sessions of the Commission and for all practical purposes there approved.

The memorandum provided as follows:

"According to Killearn's agreement with the City dated December 31, 1964, paragraph 5, financial arrangements regarding the number of lights to be furnished by the City 'will be negotiated in the near future'. The negotiations were delayed until about June of 1967, at which time an agreement was reached regarding a policy which could be appropriate to any area served by the City of Tallahassee, as follows: Street lights shall be furnished by the City of Tallahassee under the following conditions:

"1. The area covered must be using City electrical and water services.

"2. The area must include at least 100 homes.

"3. An association must be formed by the residents through which a street light contract would be paid.

"4. The street light contract must be entered into at the time electrical services are installed.

"5. During the first 3 years of street light service, one street light shall be furnished free of charge for each $1,000.00 of utility revenue received each year by the City.

"6. After the first 3 years of service, one street light shall be furnished free of charge by the City for each $750.00 of utility revenue received each year by the City.

"In view of the above, the City should immediately compute the amount of money which should either be refunded to the Killearn Home Association or the additional amount which that association owes to the City for all street lights within Killearn's property. In addition, street lights should be installed immediately in Unit 7 which has been under contract since November of 1968."

On May 8, 1974, Mr. Williams received a letter from Mr. Cook, the City Auditor and Clerk, (Plaintiff's Exhibit "D") which stated:

"At the direction of the City Commission and City Attorney Bryan Henry, I am forwarding a bill for street lights in Killearn. The bill covers the period from November 20, 1970, through April 20, 1974.

"Further at the direction of the Commission, the bill is to be processed in the routine which applies to the collection of all utility accounts. For your information, that routine is as follows:

"1. The bill is due upon receipt.

"2. The bill becomes delinquent fifteen days after receipt and a second notice is forwarded.

"3. If the bill has not been paid ten days after it becomes delinquent, an order to discontinue service is dispatched to the Electric Department.

"If you have any questions regarding this matter or the procedure, please call me."

On September 8, 1976, Killearn and Killearn Homes Association filed a Complaint in the Circuit Court in Leon County asserting that the City was and is obligated to furnish street light service to Killearn Estates pursuant to the above mentioned agreements.

The Complaint alleged that the City had indicated that it would discontinue the street light service until the Plaintiffs complied with the City's request that they pay an alleged back bill for such service.

The City answered the Complaint and counter-claimed for an amount of $25,308.96 for furnishing, at Killearn's request, 118 street lights and the electricity to illuminate them. The counter-claim asserted that a demand for payment had been made and refused. The City also affirmatively defended on the ground that portions of the alleged contracts violated the 1957 Code of the City of Tallahassee and were therefore beyond the capacity of the City of Tallahassee to perform.

Killearn answered the counter-claim, and affirmatively defended that Killearn was under no duty to pay for the street lights, that the City was guilty of laches, and that the City was estopped from claiming any payment for the street lights.

A pretrial order was filed in which certain facts were stipulated and the legal issues were delineated.

On July 13, 1976, following a trial on the merits, the Judge entered the final judgment here appealed. It provides:

"This cause came on for trial without a jury on a Complaint for Declaratory Judgment, and pleadings responsive thereto, a Counterclaim filed by the Defendant, and pleadings responsive thereto, and the Court having heard the testimony, argument of counsel and being otherwise fully advised in the premises, finds as follows:

"(1) That in 1964 the Defendant, City of Tallahassee, had a surplus of electricity and by and through its then City Manager, Arvah B. Hopkins, by and with the consent of the then City Commission, did negotiate and agree with Killearn Estates, Inc., predecessor corporation to Plaintiffs, Killearn Properties, Inc., to furnish utility services to a subdivision of Plaintiffs; which agreement was introduced into evidence as Plaintiff's Exhibit 'A'. The evidence further revealed that at the same time, Plaintiffs' were negotiating with a competitor of Defendant, to-wit: Talquin Electric Coop, for it to provide the same services which were ultimately provided by Defendant. That both Defendant and Talquin were willing to make concessions to Plaintiffs in order to get their business, and agreement was finally made with Defendant, inasmuch as, the officers of Plaintiff's Corporations, being life residents of Tallahassee, felt they owed it to the City to give them the business in order to help it dispose of the surplus of electricity then existing.

"(2) Subsequently, the agreement reached between Plaintiffs and Defendant was reduced to writing, formally adopted and ratified by the City of Tallahassee. Said writing, or Contract, was introduced in evidence as Plaintiffs' Exhibit 'B'.

"(3) Paragraph number '5' of the Contract between the parties, provided as follows:

'5. Street lighting will be available in the area and the financial arrangements regarding the number to be furnished by the City will be negotiated in the near future.'

"(4) In March of 1970, no implementation of the above paragraph '5' of the Contract having been had, the individual City Commissioners then in office, signed a memorandum, introduced in evidence as Plaintiffs' Exhibit 'C', in which a formula was set forth enumerating, among other things, that Defendant, City of Tallahassee, would furnish one (1) free street light for each $1,000.00 of utility revenue received annually by the Defendant. This document was signed by the various Commissioners at various places over a two (2) day period.

"(5) The parties relied upon said memorandum and performed thereunder. The Defendant ceased billing Plaintiffs for street lights in October, 1970, and transferred sufficient funds from its General Revenue to its Electric...