Odham v. Foremost Dairies, Inc., 30803

• Decision Date: 22 March 1961
• Docket Number: No. 30803,30803
• Citation: 128 So.2d 586
• Parties: J. Brailey ODHAM, as Chairman and James A. Acree, Wilmer W. Bassett, Jr., Robert G. Carter, Jackson Logan, Alex G. Shaw and Charlotte Tomlinson, as members, together constituting the Florida Milk Commission; and the Florida Milk Commission, Appellants, v. FOREMOST DAIRIES, INC., a corporation, Appellee.
• Court: Florida Supreme Court

Page 586

128 So.2d 586

J. Brailey ODHAM, as Chairman and James A. Acree, Wilmer W. Bassett, Jr., Robert G. Carter, Jackson Logan, Alex G. Shaw and Charlotte Tomlinson, as members, together constituting the Florida Milk Commission; and the Florida Milk Commission, Appellants, v. FOREMOST DAIRIES, INC., a corporation, Appellee.

No. 30803.

Supreme Court of Florida.

March 22, 1961.

Rehearing Denied April 26, 1961.

Winston E. Arnow of Clayton, Arnow, Duncan & Johnston, Gainesville, for appellants.

Bedell, Bedell & Dittmar and Milam, LeMaistre, Ramsay & Martin, Jacksonville, for appellee.

DREW, Justice.

This interlocutory appeal was taken from an order of the trial court denying the motion of appellants for a summary final decree and appointing a special master to hear the cause and make findings on the merits and continuing in effect an injunction theretofore issued by the trial court enjoining appellants from holding a hearing on an order to show cause why appellee's license to sell milk and milk products issued to it by the Commission should not be suspended or revoked pursuant to Chapter 501, Florida Statutes, F.S.A. In the discussion which follows we will refer to the appellants as the Commission and to the appellee as the Distributor.

Jurisdiction

The complaint which initiated these proceedings in the trial court among other things prayed for a construction of Chapter 501, Florida Statutes, F.S.A., and particularly Sections 501.13(3), 501.07 and 501.09 and asserted that certain designated provisions of said statutes violated Section 12 of the Declaration of Rights of the Constitution of Florida, F.S.A. and the Fourteenth Amendment to the Constitution of the United States because such provisions were vague, general, ambiguous, indefinite and uncertain; it asserted that to suspend the Distributor's licenses upon the basis thereof would deprive the plaintiff of its property without due process of law. The question of the jurisdiction of this Court to entertain this appeal, under the provision of the Constitution which authorizes a direct review by certiorari of interlocutory orders or decrees passing upon chancery matters which upon a final decree would be directly appealable to this Court must first be disposed of; ¹ in this case the question is a close one; nevertheless, upon consideration of the record and a careful analysis of the allegations of the complaint, we are satisfied that, in the event this cause reached the stage for the entry of a final decree, and if such 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 both the federal and State Constitutions. ² In determining our jurisdiction, therefore, we must find in these cases that 'there must be no alternative to the proposition that a directly appealable decree will essentially and beyond all question be the final result of the proceeding.' ³ Indulging such assumption in this instance we reach the conclusion that this appeal is properly before us and that we have jurisdiction to determine the issues presented.

Background of Litigation

An understanding of the issues here requires a brief review of the background of this litigation and other litigation between these same parties arising out of many of the same statutes and regulations involved here which was recently disposed of by this Court.

On July 31, 1959, this Court handed down three opinions in three separate cases involving this Distributor and other distributors holding licenses from the Florida Milk Commission. ⁴ It would unduly burden the record to recite in detail the issues presented in those proceedings and the holding of this Court with reference to such issues. Suffice it to say, many of the propositions urged by the Distributor in the complaint involved in this appeal were involved in one or more of those cases. Rehearing was granted on the original opinions, the causes were reargued and the per curiam opinions on rehearing in each of the three cases were filed on June 22, 1960. The net result of the rehearing was to modify the original opinions in only one respect and that was a holding that a portion of Order No. 20-7 of the Milk Commission requiring a showing of cause in addition to the ninety days' notice in order to terminate a previously established course of dealings was invalid and unenforceable. In all other respects the first opinions were adhered to on rehearing. Petitions for rehearing of the per curiam opinions on rehearing were denied July 13, 1960 thus bringing to a close those phases of the litigation involved in the three suits above mentioned.

The complaint in this cause was filed February 19, 1960 by the Distributor. At the time of the filing of the complaint which again presents for decision many of the questions which were finally decided in the three cases above mentioned July 13, 1960, (some five months later) the questions raised in the three cases mentioned above were in the breast of this Court for consideration and had not been finally determined.

On the Merits

On January 27, 1960, the Milk Commission issued and served on the Distributor an order requiring it to appear before the Commission at 10:00 a. m., February 24, 1960, at the Hotel Roosevelt in Jacksonville, Florida, and then and there to show cause, if any it had, why its distributor's license to sell milk and milk products issued to it by the Commission should not be revoked pursuant to Chapter 501, Florida Statutes, F.S.A., for the reasons specifically set forth in eight counts in such order. ⁵ Following receipt of a copy of the order to show cause, the Distributor filed its complaint for declaratory decree and injunction alleging inter alia its authority to do business under licenses granted by the Commission, the magnitude of its operations in the State of Florida and elsewhere and the great, irreparable injury it would suffer in the event its licenses to do business in this State were revoked and asserting, among other things, that each and every count in the order to show cause was insufficient for one reason or another to warrant the revocation of its licenses. The complaint is exceedingly long and verbose but a careful examination of its contents substantiates the allegation in paragraph 23 thereof that 'the primary purpose of this action is to obtain direct judicial protection from defendant's unlawful invasion of plaintiff's constitutional rights within Duval County where this action is instituted.' Additionally however, the complaint prays for declaratory relief and that the Commission be enjoined pending said action and permanently from holding a hearing upon the order to show cause on the date designated or any other date and for a further restraining order against the Commission from instituting any other proceedings for the suspension or revocation of any license of the plaintiff by reason of any of the causes set forth in the order to show cause. The Milk Commission's motion to dismiss the complaint was denied by the trial court. No interlocutory appeal was prosecuted from this order, the effect of which was to hold that the complaint stated a cause of action. Thereupon the Commission filed its answer, equally as long and verbose as the complaint of the Distributor, generally admitting, denying or explaining the particular allegations of the complaint. Following the filing of the answer, the Commission filed its motion for summary final decree attaching thereto certain affidavits and certificates and certified copies of various orders of the Commission including the order to show cause. Upon consideration of such motion, the trial court entered the order now before us for review and described in more detail in the introductory paragraph of this opinion.

The Distributor argues that the failure of the Commission to seek review of the trial court's order overruling its motion to dismiss within the time allowed therefor ⁶ precludes it from assigning as error on this interlocutory appeal the order denying such motion to dismiss. The Distributor further contends that since the Commission elected not to appeal from such order denying the motion to dismiss the complaint the Commission cannot upon this appeal seek to have this Court put the chancellor in error for denying the motion to dismiss the complaint. The question of the correctness of the trial court's action in overruling the motion to dismiss is not assigned as error on this interlocutory appeal from the order denying the motion for summary judgment. ⁷ A determination of the questions presented and necessary to a decision in a review of the latter order may result in the same disposition of the cause but the issues are basically different. An interlocutory appeal from an order overruling a motion to dismiss a complaint presents the basic question of whether the complaint within itself presents a cause of action for which relief may be granted by the court. ⁸ On the other hand, on a review of an order of a trial court denying a motion for summary judgment, the question for determination in the appellate court is simply whether the pleadings, depositions and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact that the moving party is entitled to a decree as a matter of law. ⁹ The fact that a motion to dismiss a complaint may have been disposed of by a trial judge does not prevent such trial judge, upon a consideration of the cause at a later stage of the proceedings on a motion for summary decree, from finding that there is no genuine issue as to any material fact and that the movant is entitled to a decree as a matter of law. This applies to both plaintiff and defendants. The scope of the judge's inquiry in the later motion is much broader than in the first. The end result may in both instances be the same but the reasons...