State ex rel. Gaines Const. Co. v. Pearson
| Decision Date | 19 June 1963 |
| Docket Number | No. 32346,32346 |
| Citation | 7 A.L.R.3d 601,154 So.2d 833 |
| Parties | STATE of Florida ex rel. GAINES CONSTRUCTION CO., a Florida corporation, and Julius Gaines, Petitioners, v. Tillman PEARSON, Chief Judge, Charles A. Carroll, Mallory Horton, Thomas J. Barkdull, Jr., Norman Hendry, Judges of the District Court of Appeal of Florida, Third District, Carol City Utilities, Inc., a Florida corporation, and John D. MacArthur, Respondents. |
| Court | Florida Supreme Court |
L. J. Cushman and Carr & Warren, Miami, for petitioners.
Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, and Richard A. Pettigrew, Miami, for respondents.
The relators, Gaines Construction Co. and Julius Gaines, instituted a law action against Carol City Utilities, Inc. claiming monies due on construction work performed for said utility company. During the progress of this suit the defendant utility obtained a stay order requiring the parties to proceed with arbitration pursuant to an agreement to arbitrate previously executed.
The arbitrator subsequently made a report entitled 'Findings And Award.' The first sentence of this document states: 'This report presents my findings and determination of awards relating to profit and overhead on construction work for Carol City Utilities, Inc. * * *'
After reciting the contentions of the parties and the difficulties in reconciling the conflicts, the arbitrator stated that he had decided to ignore all contracts between the parties and treat the various dealings as one continuous transaction.
He then directed that 'Both parties must agree on the actual cost of doing the job within the following framework * * *.' And outlined items which were to be and which were not to be considered. He ordered that 'The parties should agree within ten days on a figure that it actually cost the Gaines Construction Co. to do the work.', and provided that 'To this net figure should be added 10% net profit.'
He then ruled that if the parties were unable to agree on the actual cost within the ten days period they should employ an accounting firm He further ruled that any sums found to be due should be paid within fifteen days.
This report, designated 'Findings and Award,' apparently was filed in the trial court and several motions directed thereto were filed by the parties.
Thereafter the circuit court entered an 'Order on Motions' in which the transcript of the proceedings before the arbitrator was ordered filed of record in the law action, Gaines' application to vacate the award and discharge the arbitrator was denied and other rulings were made.
More important, however, this 'Order on Motions' ratified, approved and confirmed the 'Findings and Award' of the arbitrator and, based upon other information furnished by the parties, ordered the utility to pay Gaines $191,879.97 within fifteen days.
Several days later the court, on motion of the utility, entered an order amending the said 'Order on Motions' deleting that portion thereof which required the utility to pay Gaines the sum above mentioned.
Gaines Construction Co. and Julius Gaines filed their Notice of Appeal to the District Court of Appeal, Third District, in which review of the 'Order on Motions' and the order amending that order was sought.
On motion of the utility the district court of appeal dismissed the appeal on the ground that the orders sought to be reviewed were not appealable. The appellants then filed their petition for writ of mandamus in this Court.
We issued the alternative writ and the respondents have filed their return.
The relators' principal position is that the orders of the circuit court sought to be appealed to the district court are appealable orders under the provisions of Sec. 57.29, F.S.A. They also contend that mandamus is the proper remedy to force an appellate court to exercise its jurisdiction.
The respondents argue that the orders of the circuit court here involved were interlocutory and reviewable, if at all, only by certiorari. They point out that further judicial labor will be required before the arbitrator can make an award of a sum certain upon which the circuit court will then enter a money judgment.
Respondents also contend that mandamus is not a proper remedy to compel an appellate court to reinstate an appeal.
We will first consider the availability of mandamus as a remedy in a case such a this.
As authority for their position on this point respondents refer us to cases from two other states and to High, Extraordinary Legal Remedies, Sec. 191 (3rd ed. 1896). In the last cited text that respected writer makes the general statement that when a court dismisses an appeal, its order of dismissal is regarded as a judicial determination of the question which, however, erroneous, is final and conclusive; that it cannot be questioned or corrected by mandamus, the only remedy being by writ of error.
They argue, in effect, that in this case the district court did not refuse to exercise its jurisdiction but that it did so and in the exercise thereof determined that the appeal was not from appealable orders.
This argument is not without basis, but this Court has followed a different course, one which permits the use of mandamus to test the correctness of a determination of no jurisdiction by a court of lesser jurisdiction. See State ex rel. Duke v. Wills, 1905, 49 Fla. 380, 38 So. 289; State ex rel. Hopps v. Horne, 1918, 75 Fla. 149, 77 So. 672; State ex rel. Baggs v. Frederick, 1936, 124 Fla. 290, 168 So. 252 and State ex rel. Rembrandt Corp. v. Thomas, 1934, 117 Fla. 127, 157 So. 337.
We conclude that mandamus is a proper remedy in this case.
Therefore, we must decide whether the subject orders of the circuit court are appealable.
At the outset we note that the first 'Order on Motions' was amended by a second order which only delected the requirement that the utility pay Gaines a designated sum of money. The second order differs from the first only in that instead of specifying the amount of the award it directs that parties to proceed to the determination of the amount using the formula prescribed by the arbitrator.
Since it has been amended, review of the first order could gain relators nothing that could not be achieved by review of the second order, because as amended the first order is the same as the second.
Inasmuch as review of the first order, as amended, would be useless we should not use the writ of mandamus to compel it. State ex rel. Mann v. Burns, F...
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Carol City Utilities, Inc. v. Gaines Const. Co., 66--361
...SWANN, JJ. PER CURIAM. This cause has heretofore been before the appellate courts of this State. See: State ex rel. Gaines Const. Co. v. Pearson, Fla.1963, 154 So.2d 833, 7 A.L.R.3d 601; Gaines Construction Co. v. Carol City Utilities, Inc., Fla.App.1964, 164 So.2d Following the opinion and......