Opinion
No. T-8.
July 11, 1974. Rehearing Denied August 29, 1974.
Appeal from Circuit Court, Volusia County; Robert H. Wingfield, Judge.
William E. Sherman of Landis, Graham, French, Husfeld, Sherman Ford, DeLand, for appellant.
William Akers, III, of Duffett, Barry Seps, Ormond Beach, and R.M.C. Rose, Tallahassee, for appellees.
This is an appeal from a summary final judgment in which the trial court found that the question presented by appellant here was adjudicated in a previous action and final judgment of the same court between appellant and appellee, the City of Ormond Beach, Florida. The question involved an interpretation of a city ordinance of appellee city as to the water rate charged appellant for water service under said ordinance.
We have considered the oral arguments of counsel and have read the judgment appealed from, the briefs of the parties, and the record. We agree with the trial judge that the question presented by appellant has been determined by said previous judgment and is now res judicata. The basis for the ruling of the trial court is fully set forth in the summary final judgment and it would serve no useful purpose to further recite it here.
Affirmed.
BOYER, Acting C.J., concurring specially.
McCORD, J., and DREW, E. HARRIS, (Retired) Associate Judge, concur.
ON PETITION FOR REHEARING
We have considered appellants' petition for rehearing and adhere to our previous opinion. We will comment, however, upon the following assertion contained in the petition:
"By its ruling this court abandons the 1700 customers of the utility system of Southern Gulf, in spite of the pleas of the Public Service Commission in their behalf, to the most arbitrary and confiscatory actions of the City of Ormond Beach which now charges more for raw water than any other seller in the State of Florida. For this reason alone the case should be reversed for further proceedings and the exercise of continuing protective jurisdiction of the circuit court over the activities of the City of Ormond Beach, as requested by the Public Service Commission.
We will simply mention that at oral argument counsel for appellants, in response to a question from the court, agreed that the City of Ormond Beach could change its ordinance at any time and thereby change the rate it charges appellants for water (but our ruling in this case is based upon its present ordinance). The problem here results from a hiatus in the law whereby appellants are subject to the jurisdiction of the Florida Public Service Commission as to their rates and charges to their customers, while the City of Ormond Beach is not subject to the regulatory jurisdiction of said Commission as to the rates it charges to appellants. While it might be desirable from the standpoint of appellants and appellants' water customers that the City also be subject to the regulatory jurisdiction of said Commission, the Legislature has not seen fit to vest such jurisdiction in the Commission. The circuit court has no jurisdiction to fill this regulatory vacuum and proceed to "the exercise of continuing protective jurisdiction . . . over the activities of the City of Ormond Beach, as requested by the Public Service Commission."
The petition for rehearing is denied.
BOYER, Acting C.J., and DREW, E. HARRIS, (Retired) Associate Judge, concur.
I concur in the decision here reached. I do not agree with the interpretation of the subject city ordinance as was determined by the trial judge in the previous action; but that judgment is not now before us for review. Were we here reviewing that judgment I would reverse; but since that judgment has become final it is now, in my opinion, the law of the case and was therefore binding on the lower court in the case sub judice and is also binding upon us in disposing of this appeal.