Ocean Beach Hotel Co. v. Town of Atlantic Beach

• Decision Date: 10 June 1941
• Citation: 2 So.2d 879,147 Fla. 445
• Parties: OCEAN BEACH HOTEL CO. et al. v. TOWN OF ATLANTIC BEACH.
• Court: Florida Supreme Court

2 So.2d 879

147 Fla. 445

OCEAN BEACH HOTEL CO. et al. v. TOWN OF ATLANTIC BEACH.

Florida Supreme Court

June 10, 1941

Rehearing Denied June 30, 1941.

En Banc.

Certiorari to Circuit Court, Dade County; Miles W. Lewis, Judge.

Lee Guest and O. O. McCollum, Jr., both of Jacksonville, for petitioners.

Charles Cook Howell and Charles Cook Howell, Jr., both of Jacksonville, for respondents.

CHAPMAN, Justice.

This case is here on petition for writ of certiorari as provided for by Rules 27and34 of this Court.The alleged erroneous interlocutory orders were dated August 15, 1940 and October 11, 1940, and entered by the Honorable Miles W. Lewis, Circuit Judge in and for Duval County, Florida.The challenged orders sustained motions to strike certain defensive matter appearing in the answers of the defendants interposed by them to a bill of complaint brought by the Town of Atlantic Beach for the purpose of foreclosing special assessment liens.

The record discloses that the Town of Atlantic Beach, acting through its council, under the provisions of Chapter 16311, Special Acts of 1933, Laws of Florida, on July 26, 1933, adopted a resolution designating and describing a certain shore line to be protected by a seawall.On July 31, 1933, the Town of Atlantic Beach enacted an ordinance providing that abutting property owners on or to the described and designated seawall should be assessed 83% of the total cost of the project in proportion to the benefits to the abutting property and prorated by the front-foot rule.SeeSection 3 of Chapter 16311, supra.The remaining 17% of the costs of the construction of the seawall was to be paid by the Town of Atlantic Beach and raised by ad valorem taxation levied against all the property of said town subject to taxation.

The plans and specifications for the project were duly prepared, with an estimated cost thereof, which was fixed at the sum of $150,000, and the issuance of bonds by the Town of Atlantic Beach was submitted to the freeholders at an election authorized by Chapter 16311, supra.The issuance of bonds necessary to construct the seawall according to the plans and specifications at a cost of $150,000 was duly approved and ratified by the freeholder electors at an election called under the provisions of the Act.

On July 30, 1934 the proposed bonds were confirmed and validated by a decree of the Circuit Court of Duval County, Florida.A contract for the construction of the seawall was let by the town and the seawall duly erected and completed some time prior to September 15, 1937 when the town council adopted a resolution in which the total costs the seawall were definitely fixed at the total sum $175,265.85; and the assessment roll special assessments and all the property abutting on the seawall were assessed and charged for this total sum and prorated by the front-foot rule on the theory that the abutting property received the benefits these expenditures for the alleged improvements.We are unable after a careful study the record to reach the conclusion that an excess charge $25,000 occurred.On April 4, 1936, the defendants paid the first installment the nineteen in the sum $1,438.69, leaving eighteen installments due on the special assessments imposed.

Several questions are posed in the brief of petitioners for a decision by this Court predicated on the order of the Circuit Court dated August 15, 1940, sustaining a motion of the plaintiff below to strike the amended answer, and parts thereof, filed by the defendants on April 12, 1940.Sections 9and10 of Chapter 16311, Special Acts of 1933, are, viz.:

'Section 9.Special assessments for the improvements herein authorized shall be payable by the owners of the property abutting upon the said improvement, in the manner stipulated in the resolution providing for said special assessments, and the said special assessments shall be and remain liens superior in dignity to all other liens except liens for taxes, until paid, from the time of the assessment upon the respective lots and parcels of lands assessed, and said special assessments shall bear interest at the rate of six per cent per annum on the balance remaining due and unpaid from time to time.Interest on pay past due installment shall be at the rate of twelve per cent annum from the due date of such installment.

'Section 10.Each annual installment shall be paid upon the date specified, together with the interest hereinafter provided for, and upon the failure of any property owner to pay any installment when due, or the interest provided for, the Council shall cause to be brought the necessary legal proceedings by a bill in Chancery, to enforce payment thereof, with all accrued interest, together with all legal costs incurred, including a reasonable solicitor's fee to be assessed as a part of the costs, and in the event of default in the payment of any installment on an assessment or any accrued interest on an assessment, when the same becomes due, the whole assessment, with interest thereon, shall immediately become due and payable and subject to foreclosure.In the foreclosure of the special assessment, service of process against unknown or nonresident defendants may be had by publication as now provided by law in other chancery suits.The foreclosure proceedings shall be prosecuted to sale and conveyance of the property involved in said proceeding as now provided by law in suits to foreclose mortgages.'

It is contended here that the order striking the amended answer was erroneous as the stricken answer tendered meritorious issues, viz.: (a)Chapter 16311 authorized the levy of the special assessments and the total costs thereof were exceeded by $25,000, the estimated costs and a variance existed between the plans and specifications; (b) the abutting property owners were entitled to a rebate, in part, of the costs of the construction of the seawall; (c) items appear in the costs of the construction of the seawall not approved by the freeholders; (d) the suit at bar attempts to collect an amount in excess of the estimated costs of the seawall; (e) the payment by defendants of the first installment on April 4, 1936, estopped the defendant from paying into the registry of the court the amount claimed as balance due on the assessments and all defenses to the enforcement of the assessments were waived; (f)the defendants are interdicted by the provisions of Chapter 16311 to plead their defense.

The answer to these several contentions may be found in the provisions of Chapter 16311, Special Acts of 1933.It it not contended that the Legislature, under Section 8 of Article 8 of the Constitution, did not have the power to enact Chapter 16311, but that fatal variance occurred in procedure on the part of the Town of Atlantic Beach under the provisions of the act in perfecting enforceable liens against the abutting property owners.The lower court validated and confirmed the bond issue as authorized by the affected freeholders of the town and the lower court concluded that the facts appearing in the answers stricken by the order dated August 15, 1940, were legally insufficient to constitute stitute a defense against the suit to foreclose the special assessment lien, in the absence of a showing in the answer of fraud or mistake.We have carefully reviewed the legal effect of the answers held insufficient in the lower court and fail to find error.

In Summerland, Inc., v. City of Punta Gorda,101 Fla. 543, 134 So. 611, 614, the property owners sought to cancel the special assessments by a bill in equity.A demurrer was sustained to the bill, and on appeal here this Court affirmed the order appealed from and in part said:

'The bill of complaint, not having alleged any fraud or bad faith on the part of the commissioners in making the assessments, nor any reason why the remedy provided under the law was not open to appellant and exercised as provided, does not state facts entitling appellant to equitable relief.Abell v. Boynton,supra[95 Fla. 984, 117 So. 507];Power v. Helena,supra[43 Mont. 336, 116 P. 415, 36 L.R.A.,N.S., 39];Robert Noble Estate v. Boise City(D.C)19 F.2d 927;Farncomb v. City and County of Denver,252 U.S. 7, 40 S.Ct. 271, 64 L.Ed. 424.'

The annotation in 9 A.L.R. 797 is to the effect that a landowner who stands by without objection until a public improvement is completed is thereby estopped to object to the manner in which the work is done.

And McQuillin, Municipal Corporations, 2d Ed., Vol., 5, Section 2263, states that:

'Among the many non-essential irregularities which the courts generally agree should be put out of view, in adjudicating the merits of special assessment and taxation cases, are: * * * changing the materials, minor defects, errors and irregularities as to plans and specifications, and in the estimate of the cost of the improvement * * *.'

It is next contended that the alleged liens obtained by the construction of the seawall are void and unenforceable for reasons, viz (1) that the construction of the seawall failed to benefit or improve defendants' property; (2) the length of the seawall is 5,681.96 feet and within this distance there are thirteen streets consisting of a total of 514 feet, and that the construction of the seawall over the ends of the thirteen streets is an improvement in behalf of said town and does not benefit the property of the defendants; (3)defendants in the form of a counterclaim seek payment for the value of the property taken from the defendants and used in the construction of the seawall; (4) that several items appearing in the amended answers were adjudicated by the decree of the Circuit Court in validating and confirming the bond issue under date of July 30, 1934; (5)the defendants...