author: HOBSON, Justice.

text:
    H.B. HOLDING COMPANY, a Florida corporation, Appellant, v. John Charles GIRTMAN, George H. Girtman, Ralph M. Girtman, Katherine Girtman Johnson, and Zelma E. Schmid, Appellees.
    Supreme Court of Florida.
    July 3, 1957.
    Rehearing Denied Sept. 21, 1957.
    Benjamin E. Carey, Miami, for appellant.
    J.M. Flowers, Miami, for appellees.
   HOBSON, Justice.

This is an appeal by the plaintiff from final decree dismissing its complaint, after hearing on the merits, in a suit growing out of a party wall agreement. The facts and history of the case are briefly as follows:

In 1904 title to the lands of appellant and appellees was vested in one party. In that year, a building was built upon lands now owned by the appellees. In 1912, ’the land now owned by appellant was sold to appellant’s predecessor in title and a party wall agreement was entered by the parties. In the same year appellant’s building was built, except for the west wall thereof, which was the party wall.

This litigation was precipitated when ap-pellees demolished their building, allegedly injuring the party wall so that a hazardous condition existed, in that the wall, being the west wall of appellant’s building, was in. danger' of collapse. The City of Miami notified appellant that the wall was in such condition that under Ordinance No. 3963 it was necessary to demolish it. Later, however, the city caused a careful inspection of the wall to be made and informed- appellant that the wall could be made structurally safe by the addition of columns at each end and a tie beam at the top, tying both columns añd’the' north and south walls together. The letter to appellant, from the City Building Engineering Division, stated that these repairs should be made under the direction of a structural engineer and in accordance with the recommendations of the City Building Engineering Division.

Appellant instituted suit, setting out the party wall agreement, alleging that the appellees had refused to permit appellant to repair the party wall, and seeking permission of the court to enter upon appellees’ premises for the purpose of making the necessary repairs. Appellees answered, admitting the basic allegations of the complaint and that they had refused to permit appellant to enter upon their land and repair the wall, but alleging that the life of the wall had come to an end through decay and age, and that the party wall agreement had, therefore, come to an end as to the existing wall. The answer contained a counterclaim praying the court to decree that the party wall agreement had expired except for that portion permitting the building of a new party wall.

After hearing, the chancellor entered a final decree in which he found, in part, as follows:

“The Plaintiff has obtained from the City of Miami, Florida, a permit to repair the said party wall according to certain plans on record with the City of Miami, Florida.
“There was placed in evidence by the Plaintiff the plans under which the City of Miami issued said permit, which plans required the addition of columns and a tie-beam in accordance with the said notice of the said city. The said party wall, when new, was made entirely of brick. The said columns to be added under said plans of the Plaintiff in evidence are to be constructed with reinforced concrete and the said tie-beam to be added under said plans is to be of concrete. The Building Code or ordinance of the City of Miami prohibits the building of a new building with a wall in the same location as said party wall if said wall be constructed in the same manner and with the same material as shown by the said plans in evidence. The cost of the additions to said party wall under said plans in evidence is in excess of Twenty Percent (20%) of the value of the building of the Plaintiff. An ordinance of the City of Miami prohibits the repair of a building without complying with the Building Code of the City of Miami applicable to new buildings where the cost of such repair is in excess of Twenty Percent (20%) of the value of the building to be repaired.
“The Court finds that under said party wall agreement the Plaintiff acquired the rights to use said party wall for the life of the same, and to repair the same from time to time for the purpose of restoring it or keeping it in the same condition as it originally was, subject only to the police power of the state. The life of said party wall continues so long as it is sufficient within itself to support the building of the Plaintiff. These rights of the Plaintiff were not in any way affected by the Defendants demolishing their building, which they had a right to do. These rights of the Plaintiff, however, do not include the right to make additions to said party wall of materials differing from the material constituting said wall originally, for such a right would enable the Plaintiff and those claiming under it to extend the life of said wall indefinitely, and no such right was granted under said party wall agreement. These rights of the Plaintiff as adjudicated above, do not include the right to take any action which would exclude the Defendants from the use of said party wall, and do not include the right to repair, rebuild, or make additions to such wall in such a manner as would constitute a violation of any Building Code, law, or ordinance legally passed by the proper governing authority,”

Appellant contends that the chancellor’s determination of this case was against the grain of the party wall agreement, and that it therefore cannot stand. Certainly the agreement of the parties is of the utmost importance in a case of this nature, and many if not most of the common law rules pertaining to party walls come into play only in the absence of an agreement covering the point involved. See Orman v. Day, 5 Fla. 385; 69 C.J.S. Party Walls § 7; 40 Am.Jur., Party Walls, Sec. 7. In Nabers v. Wise, 241 Ala. 612, 4 So.2d 149, cited by appellees, common law principles were applied exclusively, but only because the rights and obligations of the parties were not defined by express agreement.

Reviewing the agreement before us in the present case, it is evident that it grants to appellants the “right to use and join to” the existing party wall, all of which was and is located on the property of the appel-lees, the east line of the wall being the dividing line between the two properties. The agreement goes on to provide authority for either party to build a new party wall whose center will be the boundary line between the two properties. As to such wall either party “may rebuild the same in case of a partial or total destruction thereof * * * ” and each shall pay half the value of the construction or rebuilding of this wall. It was this portion of the agreement that the appellees claimed was still effective, and apparently the chancellor agreed.

The last part of the agreement extends “all and singular the covenants conditions and agreements herein set forth” to “the use of the party wall as now constructed * * * ” This appears to authorize the rebuilding of the existing wall in case of a partial or total destruction thereof.

At this point we might be convinced that the chancellor’s disposition of the case was infected with error, were it not for-Ordinance No. 1554 of the City of Miami, combined with certain testimony of record. Although under the party wall agreement appellant might have a right to rebuild the existing wall and charge half the cost to the appellees, plus the right to enter ap-pellees’ lands in the process, this part of the agreement can be made effective only provided it can be done without violating any law, for a provision that the intention of the parties may not be effectuated in violation of law is implicit in every contract. Underwood v. Underwood, Fla., 64 So.2d 281; St. Lucie County Bank & Trust Co. v. Aylin, 94 Fla. 528, 114 So. 438, 441; Fry v. Hawley, 4 Fla. 258, 264.

Ordinance No. 1554 of the City of Miami, as the chancellor found, prohibits the repair of a building without complying with the Building Code for new buildings where the cost of such repair exceeds twenty percent of the value of the building. A qualified real estate appraiser testified for the appellees that the value of appellant’s building is, in round figures, $7,500. The chancellor was entitled to accept this testimony. There is further evidence of record that the repair contemplated by appellant to the wall of the building will cost between $3,500 and $4,000, or about half the value of the building. It is not pretended that the wall, as then constructed, will comply with the Code requirements for new buildings, and there is abundant testimony to the contrary in the record. The engineer who prepared the plans for the appellant’s proposed repair was of the opinion that the work would “not exceed 25% of the structural value of the building,” but apparently' this witness had an idea of the value of the building different from that of the real estate appraiser. With the testimony of the latter as to value, the testimony as to the cost of repairs, and Ordinance No. 1554 before him, the chancellor was authorized to conclude that the repairs proposed by the appellant could not be accomplished without violating the Code, and that upon this record the portion of the party wall agreement upon which appellant relies must fall.

Moreover, we are shown no error in connection with the determination by the chancellor that the party wall agreement did not give appellant the right to build a new wall of different materials from the old on the location of the present wall, and new materials and construction would necessarily be used to comply with the building requirements of the Code as to new construction. It is apparent, however, that the party wall agreement itself contemplates and provides for the erection of a new party wall, but with the center line of such new wall on the boundary line between the two properties. The right to build such a wall under the agreement is preserved to either party by the chancellor’s final decree, and this portion of the agreement continues intact provided the requirements'of the Building Code are also complied with.

Affirmed.

TERRELL, C. J., and DREW, THOR-NAL and O’CONNELL, JJ., concur.


source: Caselaw Access Project

author: PER 'CURIAM.

license: Public Domain

text:
    Frances O. WARRINER, Appellant, v. MAXINE HOTEL CORPORATION, a Florida corporation, Pasi Mendelson, Morris Margolis, Pearl Ehrenreich, Ethel Dolgow, Rose Ehrenreich, Dora Sturman and Louis Sturman, each individually and as officers, agents, employees and servants of said defendant corporation, and all jointly and severally, Appellees.
    Supreme Court of Florida, En Banc.
    June 14, 1957.
    Rehearing Denied Sept. 21, 1957. •
    Frances O. Warriner, appellant, in pro. per.
    Alexander S. Gordon and Nelan Sweet, Miami Beach, for appellees.
   PER 'CURIAM.

Affirmed on authority of Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878, and similar cases.

ROBERTS, DREW, THORNAL, and O’CONNELL, JJ., concur.

THOMAS, Acting C. J., and PIOBSON, J., dissent.

TERRELL, C. J., not participating.


author: THORNAL, Justice.

text:
    Norton JOSEPHSON, a Taxpayer of the City of Daytona Beach, Florida, on behalf of himself and all other persons similarly situated, Appellant, v. Henry AUTREY, Anthony J. Grezik, J. Kermit Coble, Hayward B. Brown, and E. W. Korb, as and constituting the Zoning Board of Appeals of the City of Daytona Beach, Florida; Carl Wetherell, as the duly qualified Building Inspector of the City of Daytona Beach, Florida; The City of Daytona Beach, Florida, a Municipality organized and existing under the laws of the State of Florida; and Ucal W. Cunningham and Minna L. Cunningham, his wife, Appellees.
    Supreme Court of Florida. En Banc.
    June 26, 1957.
    Rehearing Denied Sept. 21, 1957.

      Norton Josephson, in pro. per., for appellant.
    Raymond, Wilson & Karl, Daytona Beach, for Ucal W. Cunningham and Min-na L. Cunningham.
    W. W. Judge, Daytona Beach, for City of Daytona Beach and Carl W. Wetherell,. Building Inspector. Anthony J. Grezik, Daytona Beach, for Board of Zoning Appeals of Daytona Beach.
   THORNAL, Justice.

Appellant Josephson, plaintiff below,, seeks reversal of a final decree dismissing his complaint in a proceeding attacking the validity of the action of a zoning board of appeals purporting to grant a use variance to the appellees Cunningham.

Two points are involved, to wit: (1) under authority to grant a variance, may a zoning board of appeals permit a use prohibited by the zoning ordinance; and (2) the effect of a zoning restriction existing when property is acquired on the claim of the property owner that a hardship exists by virtue of such zoning restriction.

The appellees Cunningham purchased a parcel of land in Daytona Beach. They acquired the land from one Jarrett, paying him $42,500 therefor. Shortly prior thereto Jarrett had acquired the land at a price of $31,500. When the contract to purchase was executed, the property apparently was zoned for residential use. When the deal was closed and the purchase money paid, the municipal zoning ordinance had been amended and the property was placed in a so-called T-l district which zoned it for motels and tourist accommodations, a less restrictive use. Shortly after acquiring the property, Cunningham applied to the appellee building inspector for a permit to construct a filling station. The permit was denied on the ground that gasoline service stations were not permitted in T-l districts although they were permitted in T-2 districts. Thereupon Cunningham appealed to the zoning board of appeals. In his application to the appeals board he set out that filling stations were prohibited in T-l districts; that his property would suffer depreciation in value if he were compelled to use it for purposes authorized in T-l districts; that this depreciation in value and related potentially reduced income produced a hardship which justified the exercise of the power of the appeals board to grant a variance which would authorize the construction of a filling station on the land.

A hearing was held by the board pursuant to notice. Appellant Josephson whose home is located within 363 feet of the proposed filling station in a residence zone appeared and strenuously objected. After a complete hearing the appeals board was of the view that the authorization of construction of a filling station would not seriously affect surrounding property, that the land of Mr. Cunningham was worth a great deal more for filling station purposes than purposes authorized by the ordinance and that the differences in the value of his land considered in the light of the different uses resulted in a unique hardship that would justify the exercise of variance granting powers. The appeals board authorized the variance and directed the building inspector to issue to Mr. Cunningham a permit to construct a filling station on the land involved.

Appellant Josephson thereupon filed a complaint in the Circuit Court alleging the illegality of the action of the appeals board and contending that the board had no power to grant the variance. He also applied for a temporary injunction. After a hearing on the application for the injunction and the taking of further testimony, the trial judge was of the view that the zoning board of appeals acted within its authority and that its actions should be sustained. The restraining order was denied and the complaint dismissed with prejudice. Reversal of this order is now sought.

It is the contention of the appellant that a zoning board of appeals has no authority to “amend” the basic zoning ordinance under its variance powers by permitting a completely unauthorized use in a zoning district. He further contends that appel-lees Cunningham failed to establish the existence of a unique hardship sufficient to motivate the exercise of the power of the appeals board.

The appellees contend that the proceeding brought by appellant Josephson was not authorized under the applicable statute. On the merits they contend that the action of the appeals board was supported by the evidence and that the granting of the variance was justified.

At the outset we must dispose of the procedural question. By their briefs, the parties appear to be in accord on the proposition that the municipality had proceeded under Chapter 176, Florida Statutes, F.S.A., which is the general municipal zoning act. The appellees Cunningham point to Section 176.16, Florida Statutes, F.S.A., which provides in substance that any person aggrieved by a decision of a zoning board of adjustment or any taxpayer may present to a court of record his verified petition setting forth the alleged illegal decision of the board and specifying the grounds of illegality. Appellees then emphasize that under Section 176.17, Florida Statutes, F.S.A., the court to whom a petition is presented may allow a writ of certiorari directed to the board to review its decision.

While it is true that the appellant here styled his pleading a “complaint,” we cannot find that he failed substantially to comply with the requirements of the applicable statute. We reach this conclusion for the reason that the procedure outlined by the statute is certainly not the orthodox or traditional proceeding by way of certiorari. On the contrary it is in the nature of an original proceeding de novo. The trial court is not limited to a consideration of the record before the appeals board. The judge is authorized to take evidence and make an independent original determination of the correctness of the order of the appeals board. By Section 176.19, Florida Statutes, F.S.A., the judge has the authority to reverse or affirm or modify the decision brought up for review on the basis of the evidence presented to him pursuant to the petition. By section 176.17, Florida Statutes, F.S.A., the court is authorized to grant a restraining order, pendente lite. We therefore, find that in the instant case the appellant moved in substanial accord with the requirements of the applicable statute.

We have on numerous occasions held that persons adversely affected by zoning ordinances or the action of zoning agencies have a status as parties sufficient to entitle them to proceed in court to seek relief. Hartnett v. Austin, Fla.1956, 93 So.2d 86.

We now proceed to the merits. The ordinance which established the zoning board of appeals endowed the board with the following power, to wit:

“To authorize upon appeal in specific cases such variance from the terms of this ordinance as will not be contrary to the public interest, where, owing to special conditions a literal enforcement of the provisions hereof would result in unnecessary hardship, and so justice done.”

Our problem is to determine whether the appeals board has the power to permit a completely nonconforming use under its authority to allow a_ “variance.” While admittedly there are some authorities which appear to the contrary, it is our view that the numerical weight as well as the better-reasoned decisions adhere to the rule that a zoning board of appeals does not have the power to effectuate a pro tanto amendment of the basic zoning ordinance by authorizing a nonconforming use in a zoning district where such use is unauthorized.

Yokley in his Zoning Law and Practice, 2nd ed., Vol. 1, Sec. 140, states the rule to be:

“It is fundamental in construing the powers and duties of a board of appeals that it is limited by its properly delegated powers and that it cannot exercise legislative functions so as by the guise of a variance to really change the law regulating the character and use of certain zones.”

We ourselves have in effect so held. Wheeler v. Lautz, 160 Fla. 826, 36 So.2d 915.

There is reason to the rule. The power to restrict the use of private property by the adoption of a zoning ordinance involves an exercise of the police power. It has been sustained on the theory that the individual property owner may be required to suffer reasonable restrictions in the use of his property in the interest of the general welfare. Obviously these restrictions are imposed by the exercise of the legislative authority of the municipality. By the exercise of such authority the zoning ordinance comes into existence. Boards of adjustment or zoning boards of appeals are customarily provided for by the ordinances to examine into situations where strict adherence to the letter of the ordinance would produce a unique or special hardship on the particular property owner. Implicit in this authority to the appeals board is the necessity for a unique hardship as well as a recognition of some restriction that would forestall the exercise of legislative power by a non-legislative agency. Historically, these appeals boards may grant relief in connection with such problems as setback lines, area and height restrictions, sidelot lines and the like when not contrary to the public interest. To endow such a board with the authority to amend the zoning ordinance in particular usances by authorizing .a use of property prohibited by the ordinance itself would be to convey to the appeals board the authority to enact legislation, nullify the decision of the municipal legislative body, and in effect destroy the beneficient results to be obtained by comprehensive zoning. When circumscribed by reasonable bounds the appeals board serves a valid and useful purpose. If granted unrestricted power to amend the zoning ordinance by changing completely the authorized uses of the particular land, the effect would be to transfer the legislative powers of the municipality to this non-legislative administrative agency.

The trial judge apparently relied on our decision in Troup v. Bird, Fla.1951, 53 So.2d 717, to support the conclusion reached by his final decree. Examination of that decision does not lead us to the conclusion that it supports the decree under assault. In Troup v. Bird, supra, the board of adjustment did not change the basic zoning classification of the particular area involved. It merely relaxed the zoning regulations applicable to such area in order to permit the "applicant for the variance to excavate a lake in an area otherwise zoned for residential subdivision uses. The residential use of the area remained the same. The total effect of the opinion was to recognize that a board of adjustment has no power to re-zone under the guise of the variance but that there was no re-zoning requested by the applicant for the variance. We find nothing in our decision in Troup v. Bird, supra, inconsistent with the conclusion which we here reach.

Appellees also refer to State ex rel. Landis v. Valz, 117 Fla. 311, 157 So. 651, as a precedent to support the decree below. This was a quo warranto proceeding by which an effort was made to test the authority of the Jacksonville City Commission to exercise the power to grant a variance permit to establish a racing plant in a Residence B district. Actually all that this opinion held was that quo warranto could not be there employed to test the mere function of an office as distinguished from the title to the office itself. It was concluded that whether the City Commission would in the ultimate actually grant the permit was purely speculative and exceedingly doubtful. The Court did hold that the provision to allow variances did not constitute a delegation of legislative power to re-zone. In so holding the decision is consistent with the great weight of authority. Variance granting powers could not be sustained otherwise. However, when the appeals board undertakes to “rezone” under the guise of granting a “variance” then it is attempting to legislate.

In Tau Alpha Holding Corp. v. Board of Adjustment, 126 Fla. 858, 171 So. 819, the property involved was business property when the surrounding area was zoned residential. It was therefore classified as a “non-comforming” use at the outset. The variance approved was merely the conversion of a wooden business building into a brick business building. The actual “use” of the lañd' was not changed. This ■case certainly is no precedent for the ■decree here under attack.

Our view in the instant case is supported by the decisions of the courts of many states. Illustrative of these are the following: Moriarty v. Pozner, 21 N.J. 199, 121 A.2d 527; Clark v. Board of Zoning Appeals, 301 N.Y. 86, 92 N.E.2d 903; Adams v. Board of Zoning Adjustment, Mo.App.1951, 241 S.W.2d 35; Harrington v. Board of Adjustment, Tex.Civ.App. 1939, 124 S.W.2d 401; Board of Adjustment of City of San Antonio v. Levinson, Tex.Civ.App.1951, 244 S.W.2d 281. And see Rathkopf, Law of Zoning and Planning (3d Ed.), p. 617; 1 Metzenbaum, Law of Zoning (2d Ed.), p. 699; 8 McQuillin, Municipal Corporations (3d Ed.), Sec. 25.160, p. 280, and Sec. 25.216, p. 417; 62 C.J.S. Municipal Corporations §§ 227(2), 227(11), pp. 505, 534.

Many of the cases from other states which might appear to be contrary to our holding here actually are easily distinguishable on the facts or on the authority granted to the zoning appeals board. For example, if the ordinance here had authorized a filling station in T-l districts under certain prescribed standards, the result here might be different. The absence of such authorizing provision here is what makes the action of the appeals board legislative in nature. The board actually amended the ordinance pro tanto to permit the unauthorized use.

The final order of the trial judge will have to be reversed for another reason. In order to place in motion the exercise of the variance powers of 'a board of adjustment, the applicant must show that, a strict application of the zoning ordinance produces a unique or unnecessary hardship with reference to his parcel of land. In the instant case the appellees Cunningham acquired the land with full knowledge of the existing zoning restrictions. As a matter of fact, they paid to the seller a substantial profit over a'nd above the amount paid for the land by the seller a short time before. They purchased the property burdened with the provision of the zoning ordinance that restricted its use to tourist accommodations and similar uses. They then appeared before the appeals board and contended “hardship” solely on the basis that the land was not worth what they paid for it burdened by the use restriction which they knew to be in existence when they bought the property.

The authorities are generally in accord on the proposition that in seeking a variance on the ground of a unique or unnecessary hardship, a property owner cannot assert the benefit of a “self-created” hardship. Appellee cites our cases where we have held that a property owner will not be precluded from attacking the basic validity of a zoning ordinance merely because the ordinance was in force when he acquired the property. The situation is entirely different. The invalid ordinance can have no effect whatsoever and its invalidity can be assaulted at any time. The application for a variance permit recognizes the basic validity of the ordinance and seeks the grant of a variance purely on the basis of some hardship peculiar to his particular property. When the owner himself by his own conduct creates the exact hardship which he alleges to exist, he certainly should not be permitted to take advantage of it. On the proposition of the effect of self-created hardships see the following: Garlick v. City of Miami, Fla. 1953, 67 So.2d 440; Miami Beach United Lutheran Church of the Epiphany v. City of Miami Beach, Fla.1955, 82 So.2d 880; Mayer v. Dade County, Fla.1955, 82 So.2d 513; Freitag v. Marsh, 280 App.Div. 934, 115 N.Y.S.2d 838; Stevens v. Connor, Sup., 120 N.Y.S.2d 345; Deer-Glen Estates v. Board of Adjustment and Appeal, 39 N.J.Super. 380, 121 A.2d 26; Keller v. Town of Westfield, 39 N.J.Super. 430, 121 A.2d 419; Gleason v. Keswick Improvement Ass’n, Inc., 197 Md. 46, 78 A.2d 164; Caccia v. Zoning Board of Review, R.I. 1955, 13 A.2d 870; Newcomb v. Teske, 225 Minn. 223, 30 N.W.2d 354; Rathkopf, Law of Zoning and Planning (3d Ed.), p. 748; .8 McQuillin, Municipal Corporations (3d Ed.), Sec. 25.168, p. 296. Also see City of Miami Beach v. Hogan, Fla. 1953, 63 So.2d 493.

The decree is reversed and the cause remanded for further proceedings consistent herewith.

THOMAS, HOBSON, ROBERTS and DREW, JJ., concur.

TERRELL, C. J., dissents.

O’CONNELL, J., not participating.


author: DREW, Justice.

text:
    Ray E. GREEN, as Comptroller of the State of Florida, and Rex Sweat, as Sheriff of Duval County, Florida, Appellants, v. RAILWAY EXPRESS AGENCY, Inc., a Delaware corporation, Appellee.
    Supreme Court of Florida.
    July 17, 1957.
    Rehearing Denied Sept. 18, 1957.
    Richard W. Ervin, Atty. Gen. and John D. Moriarty, Asst. Atty. Gen., for appellants.
    Charles R. Scott and Fleming, Scott & Botts, of Jacksonville, for appellee.
   DREW, Justice.

This appeal from a summary final decree requires an interpretation of the exemption in Sections 212.06(7) and 212.06(8), Florida Statutes 1953, F.S.A. which relieves tangible personal property from imposition of the use tax where a like tax “has been paid in another state” upon the property; that is, as further stated, the property has “previously borne a sales or use • tax in another state.”

Railway Express Agency purchased and became owner of certain tangible personal property which it temporarily stored in its supply depot located in the City of New York. Upon acquisition of the property Railway Express Agency transferred certain sums to the proper authorities in New York City as it was required to do under either the New York City retail sales tax or compensating use tax.' The rates of the New York City tax and the Florida tax in question are the same. After the temporary storage mentioned above, Railway Express Agency brought the property into the State of Florida for use or consumption in the conduct of its express transportation business in Florida. The comptroller of the State of Florida assessed a tax under Chapter 212, Florida Statutes 19S3, F.S.A. (sales and use tax) upon the property, notwithstanding that proof of payment had been made as required by Section 212.06(7), Florida Statutes 1953, F.S.A. When the tax was not paid, the comptroller declared the taxes delinquent and issued a warrant for the assessment. Acting under the warrant the sheriff of Duval County recorded the warrant, and by virtue of an execution issued by the clerk upon the warrant he levied upon and attached certain trucks owned by Railway Express Agency. At this point Railway Express Agency sought an injunction against the comptroller to prevent collection of the tax and against the sheriff to prevent a sale of the attached trucks, and for ancillary relief dissolving the warrant and its lien. The trial court in a summary final decree granted the relief requested by Railway Express Agency.

The contentions of the parties were basically the same in the trial court as they are on appeal. Railway Express Agency contends that when it transferred certain sums to the taxing authority in New York City in connection with the purchase and temporary storage of certain tangible personal property it “paid” a tax for the purpose of the exemption under Sections 212.06 (7) and 212.06(8). Furthermore it contends the statute in its clear provisions establishes that where a tax has been “paid” and proved, the exemption applies, so that the comptroller has no authority to look beyond the proof of “payment”. Moreover, Railway Express Agency argues that for this reason proof that New York City taxing authorities would have granted Railway Express Agency a refund of the sums upon proof that the property was removed to Florida for use is irrelevant. Finally, it is urged by Railway Express Agency that even if such proof were otherwise relevant, since the stricken portion of the answer was of a mere ruling by the Special Deputy Comptroller of the City of New York, such is not of sufficient dignity or force to authorize a refund of the tax paid.

The comptroller contends that the ruling of the Special Deputy Comptroller of New York City appliés to the property in question and that therefore such property has not “borne” a sales or use tax as required by the exemption in Sections 212.06(7) and 212.06(8).

The pertinent parts of the Florida Sales and Use Tax statute are as follows:

Section 212.06(7), Florida Statutes 1953, F.S.A.:

“The provisions of this chapter shall not apply in respect to the use or consumption, or distribution, or storage of tangible personal property for use or consumption in this state upon which a like tax equal to or greater than the amount imposed by this chapter has been paid in another state, the proof of payment of such tax to be according to rules and regulations made by the comptroller. * * * ”

Section 212.06(8), Florida Statutes 1953, F.S.A.:

“ * * * But, the ‘use tax’ will apply to all tangible personal property imported or caused to be imported into this state on or after November 1, 1949, unless it appears that said property has previously borne a sales or use tax in another state equal to or greater than the tax imposed by this chapter.”

For purposes of administering the above provisions, the comptroller promulgated Rule 91(3) :

“The Use Tax does not apply to tangible personal property which has previously borne a Sales or Use Tax in another state equal to or greater than the Florida tax, unless the laws of the state in which such tax was paid permit the refund of such tax on property purchased for use in and shipped to another state. If such refund is allowed or allowable, the Florida Use Tax is payable.”

We accept the above rule as a proper interpretation of the statute as applied to the particular situation in the case at bar. In doing so, we must and do reject Railway Express Agency’s contention that the statute is so complete and clear that it does not require interpretation. The sales and use tax statute requires the comptroller to manipulate two complexly interrelated taxes, sales and use. In the situation presented by this case the comptroller was faced with determining whether the statutory scheme required him to impose a tax on goods bought in New York City, but brought to Florida for their use. In such a situation the use tax is designed to “police” the sales tax. The theory is that a bulk purchaser might be inclined to avoid a local sales tax through buying goods outside the state. Without the use tax therefore, substantial potential taxes could be lost and local businesses might suffer unduly from the operation of a sales tax. The use tax is also designed, however, to avoid the opposite extreme of placing goods purchased out of state at an unfair disadvantage where a sales or use tax has previously been extracted in the foreign jurisdiction. With this whole scheme in mind, the comptroller was required to determine the effect under New York City law of the transaction between Railway Express Agency and the New York City tax authority. The comptroller in his answer, alleged that Railway Express Agency was not entitled to and did not qualify for the exemption because it had not paid a tax in another state equal to or greater than the Florida tax, and alleged in support thereof the following ruling of the Special Deputy Comptroller of the City of New York, No. 1945-2, dated June 1, 1945, as amended December 30, 1948:

“.15 Use outside city. — Purchases in bulk of tangible personal property such as stationery, printed matter, advertising material of all kinds and other articles of a similar nature generally treated as expense purchases and not additions to fixed asset accounts delivered to the purchaser and stored by him in a warehouse on his premises or on the premises of another in the City of New York as a general and regular practice, and subsequently reshipped by such purchaser for consumption at the purchaser’s place of business outside the City of New York; and,
“Purchases in bulk of tangible personal property delivered to the purchaser and stored by him in a warehouse on his premises or on the premises of another in the City of New York and subsequently reshipped by such purchaser for consumption at a site at which the purchaser is performing a building contract or subcontract outside the City of New York, are subject to tax, and the purchaser is required to pay the tax on the total selling price thereof to his vendor; provided, however,
“Where the purchaser substantiates by adequate records the amount of said purchases, the tax paid thereon and the part thereof subsequently reshipped for use by him at his place of business or at a site at which he is performing a building contract or sub-contract outside the City of New York, he may deduct from any quarterly return filed by him so much of the tax paid by him on that portion of the tangible personal property so reshipped and used by him, provided further, however, that such deduction is taken not later than one year from the date of payment of the tax to the vendor. Where the tax due on such quarterly return computed without deduction for any tax paid to the vendor is insufficient to permit of the deduction of the full amount of the tax paid to the vendor, the purchaser may take as a deduction so much of the tax paid as is not in excess of the amount due on said return, and may file a claim for refund for the balance of the tax so paid and not deducted within one year from the date of payment of the tax to the vendor.”

This portion of the answer was stricken by the trial court.

Railway Express Agency has not attempted to prove that the ruling of the Special Deputy Comptroller of New York City has no binding force in New York City. The best we have been offered is speculation. We are not authorized to go behind .•such a ruling where we have been given no ■•adequate reason for doing so. The parties •stipulated that a true copy of the Special Deputy Comptroller’s ruling was presented by the Florida Comptroller’s answer. The New York City law involved in the case at bar provides that for “the purpose of the proper administration of this title and to prevent evasion of the tax hereby imposed, it shall be presumed that all receipts for property and services mentioned in this section are subject to tax until the contrary is established, and the burden of proving that a receipt is not taxable hereunder shall be -upon the vendor or the purchaser.” Local Laws of the City of New York for the year 1949, No. 44, Administrative Code, Section N41-2.0, subd. i.

The effect of the New York ruling is to require a purchaser in certain situations to •deposit at the time of the sale the amount normally assessable as a tax upon the same type of property, subject to a return of such amount upon adequate proof by the pur<chaser of the sale, the amount deposited for tax purposes, and the reshipment of the property for use by the purchaser at his place of business or at a site at which he is performing a building contract or subcontract outside New York City. The New York City ruling simply shifted the time for •such proof from the date of sale to a later (date, We therefore hold that the Florida iuse tax was properly assessed in the case at bar if the tangible, personal property is of the type covered by the New York ruling. The present record does not show the character of the property involved.

Reversed and remanded for further proceedings not inconsistent with the views here expressed.

TERRELL, C. J., and HOBSON, THORNAL and O’CONNELL, JJ., concur.


author: THOMAS, Justice.

text:
    EAST COAST GROCERY COMPANY, a Florida corporation, Appellant, v. LeRoy COLLINS, Governor, Ray E. Green, Comptroller, J. Edwin Larson, Treasurer, Richard W. Ervin, Attorney General, Nathan Mayo, Commissioner of Agriculture, as and composing the Trustees of the Internal Improvement Fund of the State of Florida, Appellees.
    Supreme Court of Florida, Division A.
    May 29, 1957.
    Rehearing Denied Sept. 18, 1957,

      Philip G. Nourse, Fort Pierce, for appellant.
    Richard W. Ervin, Atty. Gen., and Fred M. Burns, Asst. Atty. Gen., for appellees.
   THOMAS, Justice.

Suit was instituted in the Circuit Court of St. Lucie County by East Coast Grocery Company against the Trustees of the Internal Improvement Fund and was dismissed by the chancellor on the sole ground that there was “want of proper venue.”

The parties have divergent views about the nature of the proceedings. The appellant insists, “the opinion of the Attorney’s [sic] General’s office and the Opinion of the Court below notwithstanding,” to quote from its brief, that the primary purpose was to try the title to certain property located in the county, while the secondary purpose was to enjoin the Trustees from selling an undetermined amount of appellant’s realty. On the other hand, the appellees contend that the suit was one for injunction in the guise of one to quiet title.

We turn to the complaint in an effort to determine just what sort of relief was sought. The appellant claimed ownership of Government Lot 6, Section 1, Township 35 South, Range 40 East excepting the south 211.4 feet and the east 525 feet of the north 415 feet. Title was deraigned from the United States Government through various mesne conveyances, including a tax deed, to East Coast Grocery Company. At least three other conveyances from individuals were said to constitute clouds upon appellant’s title.

So far as the appellees are concerned, the action which cast a cloud on appellant’s title was charged to have been a published notice that they would offer for sale in Tallahassee “for Objections Only” certain submerged lands within the projected boundaries of the section, township and range we have already given. This advertisement contended the appellant, amounted to a cloud on its title because sale in accordance with the notice would deprive it of its riparian rights.

The appellant averred that it registered with the Trustees an objection which was overruled with the stipulation that a deed the Trustees proposed to issue would be withheld for 30 days to give the objector an opportunity to sue if it desired.

Our analysis of the allegations of the complaint is quite brief but it should suffice as a background for the question we must decide. The appellant prayed for a decree declaring it the owner of the fee simple title of the land and enjoining the Trustees from attempting to sell any interest in the property.

In that part of the motion of the ap-pellees to dismiss, for lack of venue, the attention of the court was drawn to Secs. 253.12, et seq., and especially 253.14, and to Sec. 10 of Article XVI of the Constitution.

Under the first cited section the title to certain submerged lands is vested in the Trustees of the Internal Improvement Fund and may be sold in accordance with the provisions of Sec. 253.13. In that law it is required that notice be published in a newspaper of the county where the land is situated so that persons having objection may be heard. If no objection is offered the Trustees are authorized to consummate the sale; if objection is made and upon hearing it appears that the sale would interfere with the riparian rights of private owners, the lands must be withdrawn from sale.

We pause now to remark that the notice described in the complaint was the notice contemplated by this section and that according to the complaint the objection of the appellant was overruled so it may be presumed that the Trustees decided that there would be no interference with the riparian rights of the appellant, therefore, that there was no occasion to withhold the land from the market.

The last section cited to the court by the attorney general, Sec. 253.14, is of utmost importance to a decision of this case. It contains an express provision that nothing in Chapter 253, shall be taken to prevent an owner from bringing a suit to enjoin such a sale on the ground that he would be deprived of his riparian rights. It is provided in that statute, too, that the suit must be commenced within 30 days after an objection is overruled and that in case a suit is brought the Trustees shall decide whether to defend the suit or withdraw the property from sale.

It seems appropriate again to refer to the letter received by the appellant from the Land Agent of the Department of Agriculture stating that he intended to recommend the sale of the submerged land but that a deed conveying it would be held in abeyance for 30 days to give the objector an opportunity to sue.

Plainly, the Trustees were undertaking to sell submerged land which they thought they were authorized to convey, an objection was made and rejected, and the transaction was suspended for the statutory period so the appellant might institute his suit. The information was sent to the appellant’s attorney 4 October 1955 and six days later the complaint was filed. In the exercise of their discretion the Trustees decided to defend.

It is our view that in all these circumstances the very act that might becloud the title of appellant’s property has been delayed in accordance with the law and that under the law the rights of the appellant are adequately protected. The pivotal point to be determined in the litigation is whether or not the appellant will lose his riparian rights if the sale is completed. And that question will eventually be resolved by a decision whether or not an injunction should be issued against the Trustees. No deed has been executed constituting a cloud on appellant’s title, or affecting his riparian rights, and if the appellant ultimately prevails none will be executed.

Having this conviction, we judge the suit to be one that should be instituted in Leon County. By Sec. 10 of Article XVI of the Constitution the offices of the governor and the administrative officers of the executive department are required to be kept at the seat of government which is, of course, located in Leon County, and that is the place where a suit like this must be maintained as we have so often held. McCarty v. Lichtenberg, Fla., 67 So.2d 655.

Although the attorney for the appellant prefers to call this suit one to quiet title and adopt that designation as a premise for his protestation that his rights under Sec. 12 of the Declaration of Rights and Sec. 29 of Article XVI of the Constitution are being taken from him, we do not agree. We consider the suit principally one to secure a restraining order against the Trustees brought under a statute especially designed to protect an owner in its position. The appellant will suffer no loss, but merely inconvenience, by being required to litigate in the County of Leon instead of the County of St. Lucie and this is a bother he must undergo as a contribution to the orderly, economical, expeditious disposition of the state’s business.

The decree is affirmed.

TERRELL, C. J., and ROBERTS and THORNAL, JJ., concur.

       Statutory references relate to Florida Statutes 1955 and F.S.A.


text:
    W. R. TEAGUE, Charles W. Teague and Joseph A. Teague, d/b/a Teague Brothers Transfer and Storage Company, Petitioners, v. Wilbur C. KING, Jerry W. Carter and Alan S. Boyd, as and constituting the Florida Railroad and Public Utilities Commission, Respondents.
    Supreme Court of Florida.
    July 10, 1957.
    Rehearing Denied Sept. 23, 1957.
    J. Kenneth Ballinger, Tallahassee, for petitioners.
    Lewis W. Petteway, William L. Weeks, Tallahassee, for Florida Railroad and Public Utilities Commission. Ausley & Ausley and D. Fred McMullen, Tallahassee, for Ferriss Warehouse and Storage Co., respondents.
   THORNAL, Justice.

By petition for writ of certiorari Teague seeks review of an order of the Florida Railroad and Public Utilities Commission denying his application for a certificate of public convenience and necessity to engage in the common carriage of household goods.

The point to determine is whether in the entry of the order under assault the Railroad and Public Utilities Commission deviated from the essential requirements of the law. •

On July 27, 1955 Teague filed his application for a. certificate to engage as a common carrier of household goods with equipment domiciled at Fort Walton Beach. At the hearing on the application held November 30, 1955, protestant Ferriss Warehouse and Storage Company opposed the application on the basis .of the fact that it held certificate No. 423 authorizing it to engage as a common carrier of household goods with equipment domiciled at Fort Walton Beach and that under the circumstances the public necessity and convenience did not justify the issuance, of another permit to Teague.

Ultimately the Commission denied Teague’s application, holding that on the basis of the showing made the public necessity and convenience did not justify the granting of another permit. By petition for writ of certiorari this order of the Commission numbered 3544 and a subsequent order numbered 3700 denying Teague’s petition for a rehearing are brought here for review.

In view of the circumstances hereafter summarized Teague contends that the order of the Commission is erroneous under our decision in Seaboard Air Line R. Co. v. King, Fla.1956, 89 So.2d 246.

The Commission joined .by the protestant Ferriss contends that the order under attack was adequately supported by competent substantial evidence and that the Commission complied with the essential requirements of the law in denying the Teague application.

Originally Ferriss held a “for hire” permit No. 239 pursuant to which it engaged in the carriage of household goods with its domicile at Pensacola. Subsequent to the issuance of this “for hire” permit the Commission on December 30, 1952 entered its order No. 2791. This latter order was a comprehensive revision of the procedures and the rules and regulations theretofore governing “for hire” permits relating to the carriage of household goods. By order No. 2791 the Commission converted all “for hire” permits with reference to the carriage of household goods into certificates of common carriage for household goods. All household goods “for hire” permit holders as of December 30, 1952 had theretofore been notified of the hearing pursuant to which this order was entered.- The order-shows that -seventeen such carriers including Ferriss were actually present. .The required public .-notice -was given and two public hearings were held on the revision of the rules and- regulations and the desirability- in the interest .of-the public convenience and necessity -of converting the “for hire” permits into so-called limited certificates of common carriage relating to the hauling of household goods.

By its order No. 2791 the Commission determined that all “for hire” permits to haul household goods should be revoked and in lieu thereof “a certificate -of public convenience and necessity for the limited common carriage of household goods” “Should issue by separate and individual order to each carrier.” The order further provided that the holders of such re-issued “certificates” should then fully comply with the provisions of the revised rules and regulations governing such carriage.

On January 26, 1953 the Ferriss “for hire permit No. 239 was re-issued as certificate No. 423 with authority to domicile its equipment at Pensacola. This revocation of the “for hire” permit and re-issuance as Certificate of Common Carriage of Household Goods No. 423 was accomplished pursuant to the provisions of order No. 2791, heretofore described.

'On August 16; 1954 Ferriss/-pursuant to application to the Commission, received authority to extend the certificate to the domiciling of equipment at Fort Walton Beach. While admittedly there was no further public hearing on the conversion of the Ferriss “for hire” permit No. 239 into the Ferriss certificate No. 423, it is obvious from the record that this conversion was accomplished pursuant to Commission order No. 2791 which was entered after a full public hearing pursuant to notice duly given.

Teague now contends that the Ferris “for hire” permit could not be converted into certificate No. 423 without a separate independent hearing with reference to that particular permit. To support his position he relies on our decision in Seaboard Air Line R. Co. v. King, Fla.1956, 89 So.2d 246, 248. In taking this position it appears to us that Teague disregards completely the full and comprehensive public hearings pursuant to notice which preceded the entry of order No. 2791 in accord with which the Ferriss “for hire” permit was converted into certificate No. 423.

The case before us now is not controlled by the decision in Seaboard Air Line R. Co. v. King, supra. In the case last mentioned the “for hire” permit of one Sims was transferred to one Robinson as a “limited common carrier certificate” to haul household goods. It was then extended so as to authorize the hauling of fertilizer. In Seaboard Air Line R. Co. v. King, supra, the “for hire” permit went through the metamorphosis of becoming a “limited common carrier certificate” merely by a change of designation in the application for the transfer thereof. The notice of hearing described the paper as a “limited common carrier certificate” whereas it was no more than a “for hire” permit. The order of the Railroad and Public Utilities Commission describing the document as a “limited common carrier certificate” was completely without jurisdictional foundation for the simple reason that the document was merely a “for hire” permit whereas the notice of the hearing for the transfer described it as a “limited common carrier certificate.” We there pointed out that there appeared to be no authority for the transfer of a “for hire” permit and further that such a permit could not be converted into a certificate of common carriage merely by the re-designation thereof by the holder thereof.

In the instant case the re-classification of all of the “for hire” permits in existence as of the date of Commission order No. 2791, towit, December 30, 1952, was accomplished after full public hearings participated in by many carriers and pursuant to due and adequate public notice. The distinction between the case before us and the case cited as authority for reversal obviously is that in the matter now under consideration the limited certificate for the common carriage of household goods was issued only after a full and proper public hearing. In the case relied upon by the petitioner, the holder of the “for hire” permit attempted to convert it into a certificate of limited common carriage merely by changing its-name.

We therefore find that Ferriss had a valid effective certificate of common carriage for the hauling of household goods with equipment domiciled at Fort Walton Beach at the time Teague filed his application. Ferriss was therefore entitled to participate in the proceeding as a protestant against the issuance of a further certificate to Teague. The Commission had before it competent substantial evidence to support its conclusion that the public necessity and convenience did not justify the issuance of another such certificate and we fail to find where the Commission has in any fashion deviated from the essential requirements of the law.

The petition for certiorari is denied.

TERRELL, C. J., THOMAS and O’CONNELL, JJ., and PARKS, Circuit Judge, concur.


author: CARROLL, CHAS., Chief Judge.

text:
    CITY OF MIAMI, a municipal corporation of the State of Florida, Appellant, v. MIAMI TRANSIT COMPANY, a Florida corporation, Appellee.
    No. 57-46.
    District Court of Appeal of Florida. Third District.
    Sept. 3, 1957.

      George S. Okell, Sr., Miami, for appellant.
    Worley Gautier & Dawes, and Scott McCarthy Preston Steel & Gilleland, Miami, for appellee.
   CARROLL, CHAS., Chief Judge.

City of Miami, the plaintiff below, seeks reversal of a final decree entered in favor of appellee Miami Transit Company, defendant below, in a proceeding for declaratory decree.

The city sued the Transit Company in equity, in the Dade County Circuit Court on November 10, 1954. Its bill of complaint or Petition for Declaratory Decree, as it was entitled, was six pages long with 26 pages of exhibits attached. The city’s contention was that in 1949 the Transit Company, without knowledge or consent of the city, had changed its method of computing its gross operating revenues, a percentage of which was payable to the city under its franchise contract with the Transit Company; that the new method was improper under the franchise contract; and that as a result Transit owed the city undetermined additional sums for certain past years, as to which the city prayed for an accounting.

The Transit Company filed a 15 page answer, with 31 pages of exhibits. In substance, the answer admitted the changes in 1949; denied it was without the city’s knowledge and consent; insisted on the correctness of the method of computation; denied it was short on its required payments; and averred it had overpaid the city, for the return of which it counterclaimed.

The cause became at issue on February 27, 1955. The city’s answer to Transit Company’s counterclaim was filed February 7, 1955. Rule 3.8 of the 1954 Florida Rules of Civil Procedure, 31 F.S.A., provides:

“If at the expiration of 20 days from the service of the answer no counterclaim has been filed or, if counterclaim has been filed, then at the expiration of 20 days from the service of the reply thereto, the cause shall be deemed at issue. * *

Rule 3.13 then allowed two months for the taking of testimony. , The time for that elapsed the end of April, 1955. On June 14, plaintiff moved for a pre-trial conference, which the court ordered to be held August 10. Following the pre-trial conference, the court made an order reciting that defendant Transit Company, during the pre-trial conference, had moved that the case be heard on bill and answer, and the court ordered that the matter be heard October 4 on bill and answer. By stipulation, the hearing was postponed from October 4 to December 19.

Earlier, on December 5, the city filed a motion for summary final decree, offering certain evidentiary matter, including an affidavit in support of the motion. Defendant objected to that motion on the ground that the time for taking testimony had elapsed and because the court had previously ordered that the cause should be heard on bill and answer.

Following the hearing on bill and answer, the court entered its final decree on January 17, 1956, denying the plaintiff’s motion for summary final decree, finding the equities with the defendant Transit Company and dismissing the city’s bill, and denying and dismissing the Transit Company’s counterclaim with prejudice.

The first question raised by the city on the appeal is stated on page 5 of its brief as follows:

“Equity Rule 3.13 of the 1954 Rules of Civil Procedure limiting time for taking testimony in Chancery causes and thereby requiring the cause to be beard on Bill and Answer is not applicable in actions for Declaratory-Judgment or Decree pursuant to Chapter 87, F.S.”

Rule 1.2(c) of 1954 Florida Rules of Civil Procedure, 30 F.S.A., provides: “Unless otherwise specifically provided by statute, special statutory proceedings shall be entered in the common law docket.”

That follows Rule 1.2(b), which directs the clerk to keep both a common law docket and an equity docket, and says, “He shall enter all cases as they are commenced in the appropriate docket.”

Appellant points to Rule 1.2(c), and contends that because of it, suits for declaratory decree under Chapter 87, F.S.A., can not properly be filed in equity. We can not agree.

Where the subject matter is of a kind considered acceptable to equity jurisdiction, a complaint or petition for declaratory decree, under Chapter 87, F.S.A., can and should be filed on the equity side of the court. That is shown clearly enough by the wording of the act.

Chapter 87, F.S.A., expressly authorizes ■“decrees, judgments or orders.” The permission granted in Section 87.08 for submission to a jury of “issues of fact triable by a jury”, is followed by a provision that it shall not be “construed as requiring a jury to determine issues of fact in equity cases.” Also, Section 87.11, entitled “Construction of law”, states that the purpose of the chapter is to afford “relief from insecurity and uncertainty with respect to rights status and other equitable or legal relations.”

And Section 87.12 includes this statement : “When a suit for declaratory decree is filed as provided in this chapter the court shall have power to give as full and ■complete equitable relief as it would have had if such proceeding had been instituted as a suit in equity.” [Italics supplied.]

Those references in Chapter 87, F.S.A., to decrees as well as to judgments, and the express provisions concerning equitable rights and equitable relief, indicate that proceedings under the statute may be either legal or equitable. As examples of suits brought under Chapter 87 on the equity side of the court, see Lockleer v. City of West Palm Beach, Fla.1951, 51 So.2d 291; Rosenhouse v. 1950 Spring Term Grand Jury, Fla.1952, 56 So.2d 445; and Taylor v. Cooper, Fla.1952, 604 So.2d 534.

This cause was styled and filed in equity in the circuit court. The City of Miami, as party plaintiff, having elected to submit the proceeding for declaratory decree to the equity court, is in no position now to disclaim its chosen forum. Moreover, the suit was equitable in nature, for an accounting. As this was a suit in equity, the rules for equity suits were applicable, including that limiting the time for taking testimony.

The court properly denied the city’s motion for summary final decree. The time for taking testimony had expired, defendant had moved and the court had made provision for a hearing on bill and answer, and the time for such hearing had been set, all prior to the filing by the city of its motion for summary final decree.

When the case of Strong v. Clay, Fla., 54 So.2d 193, was decided in 1951, Equity Rule 46 (1950) was in effect limiting time for testimony to two months. That rule itself was held to be the basis for setting the cause down for final hearing on bill and answer after time for taking testimony had elapsed. Thus, in the Strong case, 54 So.2d at page 195, the court said:

“Under Equity Rule 46, where a cause has not been set for trial before the court, and the court has not entered an order fixing the time within which the testimony of the parties shall be taken, a period of two months from the time the cause is at issue, and no longer, is all the time allowed for the taking of testimony. When that period has expired, either party has the right, under Equity Rule 46, to set the cause down for final hearing on the pleadings and thus bring the cause to conclusion. Myers v. Julian, 57 Fla. 493, 48 So. 998; Zewadski v. Dyal, 78 Fla. 109, 82 So. 846; Chatham Investment Co. v. Sunshine Investments, Inc., 98 Fla. 783, 124 So. 374. At such a hearing all the proper allegations of the bill not sufficiently denied by the answer are to be taken as true and all allegations in the answer of new or affirmative matter are to be deemed denied. Moreover, where issues are made by denials in the answer, the decision at the hearing must be against the party who has the burden of proof according to the rules of evidence. See McCarthy, 1931 Florida Chancery Act, Annotation page 95.” [Italics supplied.]

In Muller v. Maxcy, Fla.1954, 74 So.2d 879, 881, the'court said:

“ * * * After the expiration of the two-months period, the defendant set the cause down for final hearing on the pleadings — bill and answers. They thus became entitled to a decree of dismissal if the facts pleaded in the cause by bill and answers warranted such relief. This was a substantial right of which the defendants could not be deprived except upon clear grounds of equity and right. Mayfield v. Wernicke Chemical Co., supra [65 Fla. 113, 61 So. 191]; Strong v. Clay, Fla., 54 So.2d 193.”

The situation and procedure as it was under former Equity Rule 46, when time for taking testimony has expired, is the same under the present rule 3.13. See Arnow and Brown, Florida’s 1954 Rules of Civil Procedure, 7 U.Fla.L.Rev. 125, 140 (1954). This was recognized in Barton v. Horwick, Fla.1955, 78 So.2d 569, as shown by the following language from the opinion in that case:

“ * * * The plaintiff brought an equity action to foreclose an alleged lien for labor and materials furnished for improvements to real property owned by the defendant, a married woman. The defendant duly filed an answer to which reference will be made later. After the time for taking testimony had expired, the defendant moved for a disposition of the case upon the bill and answer, under Equity Rule 46, now Rule 3.13, 1954 Rules of Civil Procedure, 30 F.S.A., pursuant to which the court entered a final decree in favor of the plaintiff ordering the foreclosure of the alleged lien.”

Further in the opinion, 78 So.2d at page 570, the court said:

“ * * * Applicable to the instant case is our holding that at a hearing upon bill and answer ‘where issues are made by denials in the answer, the decision at the hearing must be against the party who has the burden of proof according to the rules of evidence.’ Strong- v. Clay Fla.1951, 54 So.2d 193, 195. Applying this rule to the pleadings which we have described, the defendant having denied allegations of the plaintiff essential to his cause of action, the decree on bill and answer should have been entered in favor of the defendant.”

These holdings show that the long established practice of moving or setting an equity case down for final hearing on bill and answer, when the time for taking testimony has expired, continues to prevail, and that the present rule 3.13 furnishes a basis for so moving, just as did Equity Rule 46, which preceded it.

In the recent case of Reinhard v. Bliss, Fla.1956, 85 So.2d 131, the Supreme Court treated a motion for decree on bill and answer, filed after the time for taking testimony had expired, as a Motion for Decree on the Pleadings under Rule 1.11(c) of 1954 Florida Rules of Civil Procedure, 30 F.S.A. By allowing a motion for judgment or decree on the pleadings, “within such time as not to delay the trial,” Rule 1.11 (c) appears to contemplate its exercise as a pre-trial step. In the Reinhard case, treating the motion for decree on bill and answer as being a motion under Rule 1.11 (c) may be classed as appropriate because the decision there was based on a question of the sufficiency of the complaint to state a cause of action, which the motion served to probe. As the Court there said (85 So.2d 131, at page 133):

“* * * The test we apply in this instance is the same as if defendant has made a motion to dismiss the complaint for ‘failure to state a cause of action’ under State rule 1.11(b) (6). The allegations of the defendant’s answer are of no avail to him at a hearing on defendant’s motion for decree on the pleadings.”

Contrasted with that, a motion under present Rule 3.13, as well as one under the earlier Equity Rule 46, setting a cause down for hearing on bill and answer after the time limit fixed by such rule for taking testimony has elapsed, is one by which the moving party seeks a final hearing and decree on the merits. See Tilghman Cypress Co. v. John R. Young Co., 60 Fla. 382, 53 So. 939; Mayfield v. Wernicke Chemical Co., 65 Fla. 113, 61 So. 191; Zewadski v. Dyal, 78 Fla. 109, 82 So. 846; Strong v. Clay, supra; Muller v. Maxcy, supra.

Appellant’s third point charged that the court erred in finding the equities to be with the defendant Transit Company, on the hearing on bill and answer. The pleadings and their exhibits placed before the court sufficient material upon which the court could determine the controversy. While the franchise contract and ordinance involved were not in dispute, the views of the parties on the meaning and construction were in real conflict.

Also, one material allegation was denied. Plaintiff city alleged that the Transit Company’s 1949 change in method of computing its gross operating revenues was done without the knowledge or consent of the city. The Transit Company’s answer denied that allegation.

Appellant argued that it was entitled to adjudication of its rights under the franchise ordinance. That argument assumes that the lower court granted final decree in the defendant’s favor without determining such rights. There is no basis for that assumption. The court found and decreed that the equities of the cause were with the defendant Transit Company, and since the one party contended before the chancellor that the requirements of the franchise ordinance had been violated, and the other party contended the contrary, there seems no reason to assume that the decision was not based upon the court’s consideration and determination of the matters thus properly before it on the final hearing.

The decree itself refutes appellant’s contention that the court did not declare the rights under the franchise ordinance with respect to the matter in controversy. It was there decreed:

“3. That the equities of this cause are with the Defendant and that no additional tax amounts are due by the Defendant, Miami Transit Company, to the City of Miami, and that the Bill of Complaint be and the same is hereby dismissed, with prejudice, at the cost of the Plaintiff.”

That clearly implies that the court decided the controverted matters on the merits, and appellant has not shown us on this record or in argument wherein such ruling of the chancellor was an erroneous decision.

The final decree appealed from is hereby affirmed.

Affirmed.

HORTON and PEARSON, JJ., .concur.


author: PER CURIAM.

text:
    The STATE of Florida ex rel. The FLORIDA BAR, Complainant, v. Harris L. KIMBALL, Respondent.
    Supreme Court of Florida.
    Sept. 6, 1957.
    Charles E. Davis, 'Orlando, for the Florida Bar, complainant.
    Harris L. Kimball, Miami, in pro. per.
   PER CURIAM.

A complaint was filed by the Florida Bar against Harris L. Kimball, respondent, an attorney at law, on June 21, 1956. The complaint charged the respondent, a member of the Florida Bar, with behavior contrary to good morals and in violation of the laws of the state, thus demonstrating his disregard for the laws and morals of the state and the ethics of the Florida Bar and his unfitness to engage in the practice of law in the state.

In accordance with the Integration Rule of the Florida Bar, a referee conducted a hearing on the cause and filed his report with the Board of Governors of the Florida Bar. The referee’s finding was that the allegations of the complaint concerning respondent’s misconduct were true. His conclusion was that the respondent had committed an act contrary to good morals and the law of this state. The referee recommended that the respondent be disbarred. Respondent filed a statement in opposition to the report of the referee. The Board of Governors reviewed the report of the referee and respondent’s statement in opposition thereto. It concluded the conduct respondent was found to be guilty of constitutes unprofessional conduct under the provisions of Article XI, Paragraph 2 of the Integration Rule of the Florida Bar. The Board approved and adopted the findings and recommendations of the referee.

On March 20, 1957 the judgment and record of the Board of Governors was filed with the Clerk of this Court.

More than 30 days having now elapsed since the filing with the Clerk of this Court of the judgment of the Board of Governors of the Florida Bar, together with the transcript of the evidence and the other proceedings in the cause, and no petition for review of said judgment either to deny or to modify the same having been filed, and this Court having duly considered the record in said cause and said recommendations, it is thereupon ordered that the judgment of the Board of Governors of the Florida Bar that the respondent, Harris L. Kimball, be disbarred from the practice of law be approved, and said respondent is hereby disbarred from the practice of law in this State.

THOMAS, Acting Chief Justice, ROBERTS, DREW, THORNAL and O’CONNELL, JJ., concur.


author: HORTON, Judge.

text:
    Dorothy C. CAMERON, Individually, and as Executrix of the Estate of D. B. Cameron, deceased, and Knickerbocker Motors, Inc., a Florida corporation, Appellants, v. Eugene P. MITTUCH and Andrew Sabo, Appellees.
    No. 57-40.
    District Court of Appeal of Florida. Third District.
    Sept. 5, 1957.
    Rehearing Denied Sept. 30, 1957.
    Arden E. Jensen and Dan A. Hames, Miami, for appellant Cameron.
    Harry Chadderton, Miami, for appellant Knickerbocker Motors, Inc.
    Charles J. Bodner, Miami, for appellees.
   HORTON, Judge.

The lower court entered summary judgment against the appellants except as to damages. The cause was submitted to a jury for the assessment of damages only. This appeal is from a final judgment entered after the jury verdict awarding damages to the appellees for an alleged trespass by the appellants upon property occupied by the appellees. The appellees were tenants under a lease from the appellant, D. B. Cameron. Appellant, Knickerbocker Motors, Inc., occupied property adjoining that under lease to the appellees.

The appellees in the lower court charged the appellants with wilful, deliberate and malicious conspiracy to trespass and a resulting trespass by the appellants. The appellants denied these material allegations of the complaint and in addition affirmatively pled that the appellee, Mittuch, had given his consent to the placing of a sign on the appellant’s property in consideration of the appellant, Knickerbocker Motors, Inc., allowing the appellees ingress and egress over a portion of said appellant’s property. Interrogatories were propounded by the ap-pellees to the appellants and sworn answers to the interrogatories were made by both appellants, supporting the affirmative defense of consent to the alleged trespass. After all the pleadings had been filed and answers to interrogatories had been concluded, the appellees moved for summary judgment without supporting affidavits and “ * * * upon the verified complaint, upon the pleadings herein, the exhibits annexed thereto and all the proceedings heretofore had herein, * * The lower court granted the appellees’ motion and entered summary judgment against the appellants except as to damages.

Numerous assignments of error have been made by both appellants upon which they rely for a reversal of the judgment of the lower court. This Court has considered the assignments, but feels the principal point to be decided here is whether the lower court committed error in granting the motion for summary judgment. We think it did.

The allegations of the complaint — that the appellants wilfully, deliberately and maliciously conspired to trespass and did trespass upon the appellees’ leasehold interest; the appellants’ denial of such facts, tendering an affirmative issue of consent given by the appellees for said alleged trespass; and the sworn answers to interrogatories propounded to both appellants that consent had been given by the appellees — were, we feel, sufficient to raise a genuine issue of fact that would preclude the lower court from granting the motion for summary judgment. See Parker v. Brice, Fla.1957, 96 So.2d 154; and Biltmore Village, Inc., v. Bacon, Fla.App., 96 So.2d 594.

Therefore, the judgment appealed from is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

CARROLL, CHAS., C. J., and PEARSON, J., concur.