Polar Ice Cream & Creamery Co. v. Andrews, D-450

• Decision Date: 15 November 1962
• Docket Number: No. D-450,D-450
• Citation: 146 So.2d 609
• Parties: POLAR ICE CREAM & CREAMERY COMPANY, Inc., a Florida corporation, Appellant, v. Charles O. ANDREWS, Jr., Charlotte Tomlinson, Alex G. Shaw, Robert Carter, Jackson Logan, Dr. James Acree, John H. Cone, as and together constituting the Florida Milk Commission, and the Florida Milk Commission as an instrumentality of the State of Florida, Appellees.
• Court: Florida District Court of Appeals

Page 609

146 So.2d 609

POLAR ICE CREAM & CREAMERY COMPANY, Inc., a Florida corporation, Appellant, v. Charles O. ANDREWS, Jr., Charlotte Tomlinson, Alex G. Shaw, Robert Carter, Jackson Logan, Dr. James Acree, John H. Cone, as and together constituting the Florida Milk Commission, and the Florida Milk Commission as an instrumentality of the State of Florida, Appellees.

No. D-450.

District Court of Appeal of Florida, First District.

Nov. 15, 1962.

Harrell, Caro & Wiltshire, Pensacola, for appellant.

Thomas E. Gilman of Horne & Rhodes, Tallahassee, for appellees.

WIGGINGTON, Acting Chief Judge.

Appellant, Polar Ice Cream & Creamery Company, has appealed an order entered by the trial court denying its motion to dismiss on the ground of improper venue the complaint for declaratory decree brought against it by the Florida Milk Commission. The sole question presented for our decision is whether the chancellor ruled correctly in holding that venue of this action is properly laid in Leon County.

The complaint alleges in substance that Polar is a distributor of milk in the marketing area defined by the Commission and referred to as the Pensacola Milk Marketing Area over which the Commission obtained jurisdiction and control by virtue of an election held by the producers of that area pursuant to requirements of the statute; that prior to such election and assumption of control by the Commission Polar had for a long period of time paid to its producers stipulated prices for the milk purchased from them but that being displeased with the result of the election which vested control of the area in the Commission Polar arbitrarily and without cause reduced the price for milk paid by it to its procers contrary to the purpose, spirit and intent of the statute. As a result of the actions taken by Polar the Commission adopted a motion ordering Polar and others similarly situated to pay their producers for the milk purchased by them on the basis of their previous course of business dealings which were in effect prior to the election and assumption of control by the Commission over the marketing area in which Polar operates. Upon Polar's refusal to comply with the mentioned order, this suit was instituted for the purpose of securing a judicial declaration as to the validity of the order and for such other and further remedial and coercive relief as may be appropriate. The complaint alleges that all conditions precedent to the enforcement of the Commission's rights and the maintenance of this action have been performed or have occurred.

Polar filed a motion to dismiss the complaint on the ground of improper venue, alleging that Escambia County and not Leon County is the proper venue for the action. The motion is supported by an affidavit of Polar's Vice President averring that it is a domestic corporation whose office for the transaction of customary business is located in Escambia County, Florida, where the books of the corporation and its entire bookkeeping facilities are located; that all agreements between it and its producers have been made in the latter county where the cause of action, if any, accrued.

In its order denying Polar's motion to dismiss the complaint the trial court held that since the purpose of the complaint was to obtain a judicial declaration as to the validity and application of the order entered by the Commission, the suit was properly instituted in Leon County, where the executive offices of the Commission are maintained.

Appellant relies upon the general venue statute relating to domestic corporations as support for its position that the proper venue of this action is in Escambia and not Leon County. The statute on which reliance is placed provides in pertinent part that suits against domestic corporations shall be commenced only in the county where such corporation shall have or usually keeps an office for the transaction of its customary business or where the cause of action accrued, or where the property in litigation is located. ¹ Appellant asserts that the affidavit filed in support of its motion to dismiss affirmatively establishes without contradiction that it is a domestic corporation whose office for the transaction of its customary business is located in Escambia County and that the cause of action, if any, accrued in that forum. On the basis of this statute and the mentioned proof tendered in support thereof, Polar contends that the trial court erred in denying its motion.

The special venue provision of the Administrative Procedure Act on which the chancellor relied in denying Polar's motion to dismiss applies to any state board, commission, department or officer authorized by law to make rules, except the legislative and judicial departments of government,...