Wolf Ridge Plastics v. Jacksonville Elec.

388 So. 2d 1298
CourtDistrict Court of Appeal of Florida
DecidedOctober 7, 1980
DocketOO-25
StatusPublished
Cited by4 cases

This text of 388 So. 2d 1298 (Wolf Ridge Plastics v. Jacksonville Elec.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wolf Ridge Plastics v. Jacksonville Elec., 388 So. 2d 1298 (Fla. Ct. App. 1980).

Opinion

388 So.2d 1298 (1980)

WOLF RIDGE PLASTICS, INC., a Corporation, and E.T.A. Incorporated, a Corporation, Appellants,
v.
JACKSONVILLE ELECTRIC AUTHORITY, a Body Politic and Corporate, and Roger J. Au & Son, Inc., a Corporation, Appellees.

No. OO-25.

District Court of Appeal of Florida, First District.

October 7, 1980.

*1299 A. August Quesada, Jr., and Frederick R. Brock of Wildt, Quesada, Brock & Skinner, Jacksonville, for appellants.

Charles T. Boyd, Jr. of Boyd, Jenerette, Leemis & Staas and Dawson A. McQuaig and William Lee Allen, Jacksonville, for appellees.

LARRY G. SMITH, Judge.

Wolf Ridge Plastics, Inc. (Wolf Ridge) and ETA Incorporated (ETA) seek reversal of a summary final judgment denying all relief in their suit for injunction against *1300 appellees, Jacksonville Electric Authority (JEA) and Roger J. Au & Son, Inc. (Au). Appellants argue that there were genuine issues of material fact precluding denial of an injunction, and that the trial court erred, after finding all issues in the injunction suit to be moot, in denying appellants' motion to file an amended complaint for damages. We conclude from examination of the record and the authorities presented that no reversible error has been made to appear, and we therefore affirm.

Appellee Au was awarded the contract for construction of a thermal discharge unit for JEA at JEA's Northside Generating Station. See Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978). In connection with the bidding for the job, Au was required to and did specify appellant-Wolf Ridge as the supplier for a large diameter (16 foot) pipe to be used for the discharge of heated water. Appellant-ETA is a commissioned sales agent for Wolf Ridge. Prior to actual award of the contract by JEA to Au, Wolf Ridge sold all of its assets, business and goodwill to Armco Steel Corporation. Shortly after JEA entered into its contract with Au, Au requested and JEA authorized the use of pipe manufactured by another pipe supplier, CAE Fiberglass Products, Ltd.

Wolf Ridge and ETA filed suit for injunction, seeking to prohibit JEA and Au from using any large diameter pipe not manufactured by Wolf Ridge. The trial court entered summary final judgment in favor of JEA and Au, based upon findings of fact, not controverted, that the 16 foot diameter pipeline in question, manufactured by CAE Fiberglass Products, Ltd., had at the time of the hearing already been fully fabricated, delivered, laid in a trench under the St. Johns River for a distance of 3,000 feet in accordance with the plans and specifications of the contract, all segments had been locked together, anchored with two heavy concrete pillars on each 50 foot segment of pipe, and back fill had been placed over the entire pipe. The court further determined that neither of the appellants had any contract with either JEA or Au at any time. Thus, concluding that at the time of the hearing it was impossible to prevent or enjoin what had already occurred, the trial judge ruled that the complaint for injunction was moot. Upon announcement of the trial court's ruling, appellants requested leave to amend the complaint to reflect an action for damages, which motion was denied.

Appellants contend that Wolf Ridge, as the prequalified pipe supplier utilized by Au in submitting its successful bid, has a vested right to manufacture and supply the large diameter pipe used on the job; and, relying upon Robert G. Lassiter and Co. v. Taylor, 99 Fla. 819, 128 So. 14 (1930), they contend that at the time of entry of the summary judgment relief by injunction to prohibit completion of the contract between JEA and Au was not precluded, because the sum of $946,504.00 of the contract price remained in the possession of JEA, undistributed to Au; and that the job had neither been finally approved nor accepted. They further contend that there was a genuine issue of material fact whether there was an oral contract between Wolf Ridge and Au, obligating Au to designate Wolf Ridge as its pipe supplier if Au was the successful bidder, and that Dedmond v. Escambia County, 244 So.2d 758 (Fla. 1st DCA 1971), is authority for appellants' asserted right to file an amended complaint seeking money damages.

Appellants cite no authority for the proposition that a supplier such as Wolf Ridge, designated by a contractor in its bidding documents, has a vested right to manufacture and supply materials utilized in the construction. We find no basis for appellants' contention on this point. They were only indirectly involved in the bidding process, never became parties to the contract between JEA and Au, and, notwithstanding their reliance upon the language of this court's opinion in Wood-Hopkins, supra, neither Wolf Ridge nor ETA were parties to that litigation, and can claim no benefit from it.

*1301 The Lassiter case was an action to restrain payment of the balance due on a public contract because of faulty construction. However, Lassiter was a taxpayers action, and neither appellants are residents or taxpayers of the State of Florida; nor do we find any authority in Lassiter which would authorize the court to order either the nonpayment or the refund of funds paid for benefits already completed and delivered under the public contract. See Robinson's Inc. v. Short, 146 So.2d 108 (Fla. 1st DCA 1962). In this connection appellees point out that the total contract price was $11,650,000.00. We note from attachments to the complaint that Au, in its bid on the contract, allocated $4,850,000.00 out of the total contract price to the large diameter pipe needed on the project. The record does not disclose what portion, if any, of the $946,504.00 retainage applied to the pipe item, but it is clear that all pipe had been manufactured and delivered by the pipe supplier when the summary judgment was entered.[1] Au further represents to the court in its brief and oral argument, without contradiction, that the project has been completed, and all funds have been disbursed.

The great weight of authority supports the action of the trial judge in denying the injunction on the grounds of mootness, since injunction ordinarily will not be ordered where it is impossible to prevent or enjoin that which has already occurred. 42 Am.Jur.2d, Injunctions, § 291, page 1089; Sunshine Villa Apartments Inc. v. Snyder, 335 So.2d 841 (Fla. 4th DCA 1976). See also City of Coral Springs v. Florida National Properties Inc., 340 So.2d 1271 (Fla. 4th DCA 1976), and Dick v. Drainage District No. 2, etc., 175 Kan. 267, 267 P.2d 494 (1954).

Dedmond v. Escambia County, supra, is distinguishable because Dedmond was a bidder, and as such was in position to insist upon compliance with the statute, Section 125.35, Florida Statutes, requiring that the award be made to the highest and best bidder. This court found that Dedmond was in the position of a successful bidder; however, in view of the fact that the county had already rebid the lease of a beach concession, albeit erroneously, Dedmond was not confined to the remedy of injunction, but was authorized to pursue the less disruptive remedy of an action for damages for breach of contract. Here, appellant Wolf Ridge is not in the position of a bidder, but only in the position of one who had agreed to become a supplier to a bidder.

Wolf Ridge had no contract with JEA. Furthermore, we find no merit in appellants' contention that JEA was bound by the "law of the case," found in our

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388 So. 2d 1298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolf-ridge-plastics-v-jacksonville-elec-fladistctapp-1980.