National Dairy Products Corp. v. State ex rel. Warren

• Decision Date: 23 August 1966
• Docket Number: No. H--175,H--175
• Citation: 189 So.2d 811
• Parties: NATIONAL DAIRY PRODUCTS CORPORATION, a Delaware corporation, Appellant, v. The STATE of Florida ex rel. Dan R. WARREN, State Attorney, Seventh Judicial Circuit, Appellee.
• Court: Florida District Court of Appeals

Page 811

189 So.2d 811

NATIONAL DAIRY PRODUCTS CORPORATION, a Delaware corporation, Appellant, v. The STATE of Florida ex rel. Dan R. WARREN, State Attorney, Seventh Judicial Circuit, Appellee.

No. H--175.

District Court of Appeal of Florida, First District.

Aug. 23, 1966.

Hall, Hartwell, Hall & Canada, Tallahassee, for appellant.

Earl Faircloth, Atty. Gen., and Frank A. Orlando, Asst. Atty. Gen., for appellee.

JOHNSON, Judge.

Pursuant to Section 540.02, Florida Statutes, F.S.A. the State Attorney of the Seventh Judicial Circuit of Florida, instituted injunctive proceedings in Volusia County Circuit Court, seeking to enjoin certain named defendants from continuing violations of Section 540.01, Florida Statutes, F.S.A. more specifically, to enjoin unfair competition within the milk industry. The defendants consisted of six retailers, referred to as 'supermarket defendants' and seven distributors, referred to as the 'distributor defendants'. The appellant herein falls in the class of a 'distributor defendant'.

Attached to the complaint in said cause was a transcript of testimony taken by the State Attorney on September 4, 1965, asserting certain sales prices of milk at retail in various sections of the state in and around Volusia and adjoining counties by the 'supermarket defendants'. The testimony does not refer to any price at the distributor level, nor are any distributor prices given. On September 18, 1965, which was a Saturday, the Circuit Court issued without notice to any of the defendants a temporary restraining order against all of the defendants enjoining them from 'further acts of unfair discrimination as rohibited by Section 540.01, Florida Statutes, (F.S.A.) and specifically, from selling the commodity in general use known as Grade A homogenized milk in any locality in the north-easterly section of the State of Florida, at a lower rate than is charged for said commodity by said party in another section, community or city of this State, after making due allowance for the difference, if any, in the grade or quality and in the actual cost of transportation from the point of production of said commodity.'

This restraining order was returnable before the same court for September 23, 1965, to show cause why said temporary injunction should not be made permanent. The appellant joined with another defendant in an unsuccessful effort to have said cause transferred to Federal court. The cause was remanded to the State court on October 8, 1965, and the appellant on October 11, filed its motion to dismiss and to dissolve the temporary injunction. These motions were set for hearing for November 2, 1965. On November 2, 1965, appellant appeared before the court to argue its motions. At that time however, the State Attorney filed a suggestion of contempt against the supermarket defendants and the trial court deferred hearing the motions until December 2, 1965. This interlocutory appeal had been filed and therefore no hearing had on December 2, 1965.

On October 22, 1965, after appellant had filed its motion to dismiss and to dissolve the temporary restraining order, the State Attorney amended his complaint and for the first time alleged that the distributor defendants were selling to the supermarkets at a lower rate than in other sections, also, further alleging that said lower rates were adopted by the defendants 'pursuant to prior discussions and agreements among the defendants.' This amendment was the sworn to nor supported by affidavit of fact.

The appellant filed eight assignments of error, some of which were stricken upon motion of appellee. Assignments of error numbered 4 and 5 question the propriety of using civil injunctive process to enforce the provisions of Chapter 540, Florida Statutes, F.S.A., in issuing the temporary injunction. We think this raises a question for the trial court to determine at the proper time and since this court finds other valid grounds for disposal of this appeal as pointed out below, we do not pass on this question.

Assignments of error numbered 6, 7 and 8 read as follows:

'6. The trial court erred in entering the temporary restraining order without notice and hearing because the allegations of the complaint do not demonstrate that the injury anticipated by the plaintiff would be accelerated by giving notice.

'7. The trial court erred in entering the order dated November 2, 1965, deferring until December 2, 1965, hearing on defendant's motions to quash, dissolve and dismiss because that order continues the effect of the temporary restraining order to a date some seventy days from the date of its entry during which time this defendant has not afforded an opportunity to be heard on the propriety of said restraining order.

'8. The trial court erred in entering the order dated November 2, 1965, deferring until December 2, 1965, hearing on defendant's motions to...