author: LEWIS, J.

text:
    Charles Van DEESE, as personal representative of the estate of Parker Deese, Appellant, v. McKINNONVILLE HUNTING CLUB, INC., Appellee.
    No. 1D03-2157.
    District Court of Appeal of Florida, First District.
    June 18, 2004.

      William Rankin, Esq. of .Kerrigan, Es-tess, Rankin & McLeod, LLP, Pensacola; Louis K. Rosenbloum, Esq. of Louis K. Rosenbloum, P.A., Pensacola, for Appellant.
    Robert C. Palmer, III, Esq. of Shell, Fleming, Davis & Menge, P.A., Pensacola, for Appellee.
   LEWIS, J.

Appellant, as the personal representative of Parker Deese, 'appellant’s deceased son (the “decedent”) seeks review of the trial court’s Summary Final Judgment entered in favor of appellee, the McKinnon-ville Hunting Club, Inc. Appellant argues on appeal that the trial court erred in granting appellee’s motion for summary judgment because issues of fact remain as to whether appellee’s alleged negligence in operating a dog hunt near a road having a fífty-five-mile-per-hour speed limit was the proximate cause of the decedent’s death. We agree and, therefore, reverse and remand for further proceedings.

On December 19, 1998, appellant and the decedent, who was then twelve years old, participated in a hunt organized and conducted by appellee in which dogs were used to drive deer through land in Es-cambia County that was leased to appellee by Champion Paper Company (“Champion”) toward County Road 99 (“CR 99”), which is a two-lane highway having a speed limit of fifty-five-miles-per-hour. According to appellant, who was a member of appellee’s hunting club at the time of the decedent’s accident, he and the dece: dent were on the east side of CR 99 during the first drive hunt and had been told by appellee’s president to move to the west side of CR 99 for the second drive hunt. Because appellant was unsure as to where he needed to park his truck for the second hunt, appellant followed a fellow hunter, J.B. Mahan, in his truck which, at that point, held appellant, his wife, his young daughter, and the decedent. Mahan pulled out from the east side of CR 99, and appellant pulled out from the west side of CR 99 heading south. After following Ma-han for “a couple hundred yards,” Mahan informed appellant via radio that they needed to back up to catch some of the dogs that were beginning to come out of the woods from the last drive. Appellant then pulled onto the west side of CR 99 and noticed Mahan and his granddaughter on the east side of CR 99 attempting to catch dogs that were running “everywhere.” According to appellant, club members were directed to try to catch the dogs when possible. While sitting on the side of CR 99, the decedent sought appellant’s permission to help catch the dogs. Although appellant initially denied the decedent’s request, appellant shortly thereafter told the decedent that he could help catch the dogs. Appellant was in the process of turning back around in his seat after having given the decedent permission to catch the dogs when the decedent opened the door and “t[ook] off.” The decedent, who exited the truck through the driver’s side door, was struck by a vehicle traveling in the northbound lane of CR 99 and died three days later. According to appellant, only two or three minutes elapsed between the time he pulled off onto the side of CR 99 and the moment in which the decedent exited the truck.

Appellant subsequently filed suit against appellee, alleging that appellee breached its duty to promulgate, draft, and enforce rules and regulations to ensure that club activities would be conducted in the safest manner possible and that, as a direct and proximate result of such negligence, the decedent was struck by a vehicle and died. As affirmative defenses, appellee asserted that the decedent was negligent in crossing the road, which caused or contributed to his death, and that any damages suffered by appellant were the result of his actions or omissions, which caused or substantially contributed to the decedent’s death. In response to appellant’s request for admissions, appellee admitted, inter alia, the following: (1) that it had a duty to promulgate, draft, and enforce rules and regulations that would cause members to hunt and conduct activities on the leased property in a reasonable manner reducing the possibility of death and injury to members and their families or others; (2) that it had a duty to conduct activities in compliance with the club’s rules and regulations; (3) that it was advised by Champion that a hunting party must be large enough to handle the dog pack effectively; and (4) that it has no specific rules or regulations about hunting with children. While appel-lee admitted that it was advised by Champion that a huntmaster who is not hunting must be in control of the hunt, appellee averred in its response that one of Champion’s employees had orally amended this requirement. Although appellee admitted that it was advised by Champion that a core dog hunt area would be identified on a map, it denied that this was done by Champion. While appellee admitted that members’ vehicles were parked on the side of the roadway during hunts, it asserted that this occurred only so long as the vehicles were not on the legal right-of-way. Appellee denied that Champion specified that areas between the dog hunt core area and the external boundary should be designated as still-hunting only, that it had no rules or regulations addressing the danger of dog hunting on paved highways, that it would, on occasion, drive the deer with dogs towards paved roadways within and bordering its leased areas, and that the members would line up adjacent to the roadway with guns in an effort to shoot at deer that are driven towards the road by the hunting dogs.

The record contains a letter dated December 3, 1986, from Champion to appel-lee’s then-treasurer explaining that Champion had received specific complaints concerning appellee’s members hunting immediately adjacent to CR 99. Because Champion considered the possibility of injury so great, it added the following clause to every hunting lease that year:

No officer, member, employee or guest of the Lessee will conduct any hunting activity within 100 feet of any federal, state or county road right-of-way. The same rules that apply to hunting activity on a public road right-of-way will, for Champion’s purposes, .extend the additional 100 feet onto Champion property.

' Several of Champion’s prior employees, who testified via deposition that they had received numerous complaints over the years that appellees’ members trespassed on other people’s property and hunted on the roadways, also testified that appellee’s members were only supposed to hunt in appellee’s core area. Champion’s Styx Forest Dog Retention Policy for the 1997-1998 hunting season explained:

A core dog hunt area will be identified on a map. Areas between the dog hunt core area and the external boundary should be designated as still hunting only. This will give clubs a second opportunity to capture any dogs missed on the edge of the core area and minimize trespassing complaints. This will also allow the hunting party to hunt deer more, and dogs less, by keeping the dogs to a smaller more confined area.

Mark E. Free, a former forest representative for Champion, testified that the hunting that occurred on the day of the decedent’s accident took place in a highly critical area notwithstanding the fact that such areas were to be avoided. Other prior employees of Champion testified that Champion had provided appellee with a map designating those areas and that no one had told appellee that Champion’s rules could be ignored. Kenneth Watson, a law enforcement lieutenant with the Florida Fish and Wildlife Commission, who testified via deposition that he had received complaints dating back to 1983 concerning appellee’s dogs trespassing on neighbors’ property and appellee’s members hunting along the roadways, also testified that he agreed with one of Champion’s employees that appellee was the worst hunting club in Escambia County.

W.H.F. Wiltshire, whom appellant listed as an expert, testified via deposition that he had been hunting since he was five years old and had been a member of a different hunting club since 1969. In Wilt-shire’s opinion, appellee did not plan the hunt on the day of the accident. Rather, “[t]hey just got together that morning, and somebody in the group said ‘let’s hunt that particular area,’ and that’s where they went.” Wiltshire also opined that a hunt-master should have been appointed to handle the hunt on the day of the accident, that the hunt drive should not have been operated towards CR 99, and that the hunters should not have been placed in the right-of-way during the period of time when the two drives were taking place. Wiltshire thought it equally troubling that appellee was intending to run the dogs towards the highway and to catch the dogs on the highway, practices which are dangerous to the dogs, traffic, and those attempting to catch the dogs.

J.B. Mahan testified via deposition that it was not uncommon for the hunting dogs to cross the road during the hunts. Lonnie Majors, appellee’s president at the time of the accident, similarly testified via deposition that the club’s dogs had been killed on the roadways in the past. When asked if there was a pretty good chance of dogs winding up in the road when hunting adjacent to the road in the area where appellee’s members were on the day of the accident, Majors replied, “There’s always the chance.” Majors then acknowledged that there was a reasonable chance that the dogs would “get into the area of the road.” According to Majors, although he had been designated as the huntmaster on the day of the accident, he had hunted along with appellee’s other members.

Thereafter, appellee filed a motion for summary judgment, arguing that the record conclusively demonstrated that there was no direct causal relationship between any act or omission on behalf of appellee and the decedent’s death and that the causal chain that appellant would have to prove was clearly broken by the independent acts of appellant, the decedent, and the driver of the vehicle that struck the decedent. Appellee requested that the trial court enter an order finding as a matter of law that there was no negligence on appellee’s part and that its actions were not the proximate legal cause of the accident resulting in the decedent’s death. The court granted appellee’s summary judgment motion, citing Garcia v. Metropolitan Dade County, 561 So.2d 1194 (Fla. 3d DCA 1990), and entered a Summary Final Judgment, adjudging that appellant take nothing by the action. This appeal followed.

A party seeking summary judgment in a negligence action has a more onerous burden than that borne in other types of cases. Cassoutt v. Cessna Aircraft Co., 660 So.2d 277, 281 (Fla. 1st DCA 1995) (citations omitted). A trial court must draw all reasonable inferences in favor of the non-moving party when ruling upon a motion for summary judgment. Id. (citation omitted). “Summary judgment should be granted cautiously, with full recognition of the right of a litigant to a jury trial on the merits of his cause.” Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1096 (Fla. 1st DCA 1999). If the record reflects even a possibility of a material issue of fact, then summary judgment must be denied. Id. (citation omitted). This Court reviews the trial court’s judgment de novo. See Noack v. Blue Cross & Blue Shield, of Fla., Inc., 859 So.2d 608, 609 (Fla. 1st DCA 2003).

In the instant case, appellee moved for summary judgment on the issue of proximate cause and argues on appeal that the only issue before this Court is whether its conduct foreseeably and substantially caused the decedent’s death. Proximate causation consists of both cause in fact and foreseeability. Coker v. Wal-Mart Stores, Inc., 642 So.2d 774, 776 (Fla. 1st DCA 1994). The “so-called ‘but-for’ causation-in-fact-test” sets forth that “ ‘to constitute proximate cause there must be such a natural, direct, and continuous sequence between the negligence [sic] act [or omission] and the [plaintiffs] injury that it can reasonably be said that but for the [negligent] act [or omission] the injury would not have occurred.’ ” Stahl v. Metro. Dade County, 438 So.2d 14, 17 (Fla. 3d DCA 1983) (quoting Pope v. Pinkerton-Hays Limber Co., 120 So.2d 227, 230 (Fla. 1st DCA 1960) (emphasis in original)). In McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla.1992), the Florida Supreme Court explained:

The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others_The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foresee-ably and substantially caused the specific injury that actually occurred. In other words, the former is a minimal threshold legal requirement for opening the courthouse doors, whereas the latter is part of the much more specific factual requirement that must be proved to win the case once the courthouse doors are open. As is obvious, a defendant might be under a legal duty of care to a specific plaintiff, but still not be liable for negligence because proximate causation cannot be proven.
However, as the Restatement (Second) of Torts has noted, it is immaterial that the defendant could not foresee the precise manner in which the injury occurred or its exact extent. Restatement (Second) of Torts § 435 (1965). In such instances, the true extent of the liability would remain questions for the jury to decide. On the other hand, an injury caused by a freakish and improbable chain of events would not be “proximate” precisely because it is unquestionably unforeseeable, even where the injury may have arisen from a zone of risk. The law does not impose liability for freak injuries that were utterly unpredictable in light of common human experience. Thus, as the Restatement (Second) of Torts has noted, a trial court has discretion to remove the issue from the jury if, “after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that [the conduct] should have brought about the harm.” Restatement (Second) of Torts § 435(2) (1965).
Unlike in the “duty” context, the question of foreseeability as it relates to proximate causation generally must be left to the fact-finder to resolve. Thus, where reasonable persons could differ as to whether the facts establish proximate causation — i.e., whether the specific injury was genuinely foreseeable or merely an improbable freak — then the resolution of the issue must be left to the fact-finder .... The judge is free to take this matter from the fact-finder only where the facts are unequivocal, such as where the evidence supports no more than a single reasonable inference.

(emphasis in original).

It is only when an intervening cause is completely independent of, and not in any way set in motion by, the tort-feasor’s negligence that the intervening cause relieves a tortfeasor from liability. See Townsend v. Westside Dodge, Inc., 642 So.2d 49, 50 (Fla. 1st DCA 1994) (citation omitted). “It is not necessary for the initial tortfeasor to foresee the exact nature of the ensuing injury or the precise manner in which it occurs, as long as he or she is able to foresee that some injury is likely to result in some manner as a consequence of the negligent act.” Id. It is only when reasonable persons could not differ on the issue of foreseeability that a court may decide as a matter of law that a certain act or conduct constitutes an independent, efficient intervening cause. Pamperin v. Interlake Cos., 634 So.2d 1137, 1139 (Fla. 1st DCA 1994) (citing Dep’t of Transp. v. Anglin, 502 So.2d 896, 899 (Fla.1987)). “One who establishes a remote condition which furnishes only the occasion for another’s [intervening] negligence is not deemed to be a proximate cause of the resulting accident unless the intervening cause was foreseeable.” Cho v. Mackey, 567 So.2d 1064, 1065 (Fla. 2d DCA 1990) (citations omitted).

In granting appellee’s summary judgment motion, the trial court cited to the Third District’s opinion in Garcia, 561 So.2d at 1194. There, the appellant, a minor child, was struck and injured by an automobile while walking to school with his mother. Id. at 1195. The appellant crossed N.W. 32nd Street without his mother’s permission. Id. The appellant’s parents filed suit against Metropolitan Dade County and the Dade County School Board, alleging that Dade County had created a dangerous condition by having failed to maintain a crosswalk at the intersection where the accident occurred and that the School Board had invited and encouraged students and their parents to cross N.W. 32nd Street by designating that route as safe while knowing and failing to warn that the route was not in a designated school zone, that there had been prior accidents, and by failing to act upon complaints. Id. Both appellees moved for summary judgment, claiming, inter alia, a lack of proximate cause. Id. In affirming the trial court’s summary judgment, the Third District noted that the appellant was under his mother’s “direct control and supervision immediately before the occurrence of the accident.” Id. The court also set forth that “[n]o number of traffic signals, traffic control devices, or safe route to school maps can provide any greater protection for a child than the attendant supervision of his parent.” Id. According to the court, the presence or absence of traffic control devices or warnings had no relationship to the occurrence of the accident. Id. The court determined that there was no evidence to support the claim that additional traffic control devices or warnings would have brought about a different result since the appellant’s mother did not see the automobile prior to the accident. Id. In concluding that the sole proximate cause of the appellant’s injuries was his act of stepping into the street without keeping a proper lookout while under his mother’s control, the court cited to its previous decision in Pope v. Cruise Boat Co., 380 So.2d 1151, 1153 (Fla. 3d DCA 1980), for the proposition that “ [t]he law is well settled in this state that a remote condition or conduct which furnishes only the occasion for someone else’s supervening negligence is not a proximate cause of the result of the subsequent negligence.’ ” Id.; see also Pope, 380 So.2d at 1151-53 (affirming the trial court’s summary judgment and holding that the appel-lee’s action or omission in permitting vehicles and a boat to be situated near the street was not the proximate cause of the appellant’s injuries that resulted after the adult appellant, who “chose” to walk on the shoulder of a county street, stepped off of the shoulder into the street because of the protruding boats and vehicles and was struck by an oncoming truck).

We agree with appellant that Garcia does not support summary judgment in this case. While the court in Garcia found that the presence or absence of traffic control devices or warnings had no relationship to the occurrence of the accident and that there was no evidence that additional devices or ' warnings would have brought about a different result, here, it can reasonably be said that the accident would not have occurred had appellee not operated a hunt so close to CR 99. As appellee’s president testified, there was a reasonable chance that the dogs would get near the road. Moreover, Garcia does not present a situation in which Dade County set in motion a chain of events that resulted in the child’s death. In other words, the lack of control devices or warnings did not cause the child to run across the street unattended. Here, in contrast, it was ap-pellee’s act of holding a hunt near CR 99 that led to the dogs being near CR 99 and the decedent’s desire to assist in catching the dogs.

Interestingly, in Brunson v. Dade County School Board, 559 So.2d 646 (Fla. 3d DCA 1990), which was decided shortly after Garcia, the Third District reversed the trial court’s order granting summary judgment in a case with facts very similar to those in Garcia. There, the appellant, who was the father and personal representative of the decedent, a minor child, appealed the trial court’s summary judgment entered in favor of the Dade County School Board, the appellee. Id. at 647. The child had been transferred from his assigned school to a more distant school for speech therapy. Id. A clerical error prevented bus service from being provided. Id. For two weeks, the appellant took the child, by public bus, to the stop nearest the school and then walked the child the rest of the way. Id. The appellant then allowed the child, then nine years of age, to make the trip alone. Id. While crossing a busy street, the child was struck and killed by an automobile. Id. The School Board argued that the appellant’s act of allowing his son to travel alone constituted an active and efficient intervening cause which relieved it of liability. Id. In reversing the trial court’s summary judgment order, the Third District noted that if the child was too young to make the trip alone, then a jury question would arise as to comparative negligence. Id. at 648. The court concluded that the appellant’s allegedly deficient conduct was “ ‘set in motion by the original wrongful act ....’” and was not such a new and independent cause as to create an intervening cause. Id. (quoting Loftin v. McCrainie, 47 So.2d 298, 302 (Fla.1950) (other citations omitted)). Notably, the court explained that even if the case was viewed as a matter of intervening cause, it would nonetheless reverse because the question of whether an intervening cause is foreseeable is ordinarily for the trier of fact. Id. at 648 n. 2; see also Dykes v. City of Apalachicola, 645 So.2d 50, 51-53 (Fla. 1st DCA 1994) (reversing the trial court’s summary judgment entered in favor of the appellee and holding that the appellant’s twelve-year-old son, who was struck by an oncoming car while mowing the lawn on the right-of-way in front of a house, did not constitute an independent, intervening cause that insulated the appellee from liability and that it could not be said that it was unforeseeable that a pedestrian would emerge from the overgrown foliage on the right-of-way); Stahl, 438 So.2d at 16-23 (reversing the trial court’s summary judgment entered in favor of Metropolitan Dade County because the court did not find that the child’s act of riding off of the bike path in an attempt to avoid a poorly maintained area, which resulted in the child being struck by a vehicle and killed, constituted a highly unusual, extraordinary, or bizarre occurrence, noting that it did not wish to imply that the child could not be found comparatively negligent, and distinguishing Pope on the basis that the appellant there had no momentum problem since she had been walking).

In contending that Garcia is applicable to the facts of the instant case, appellee relies on appellant’s act of permitting the decedent to exit his vehicle and the decedent’s alleged failure to look both ways before crossing CR 99. However, Brun-son suggests that any failure or deficiency on appellant’s part in permitting the decedent to exit his vehicle would constitute a jury question on the issue of comparative negligence. Furthermore, Stahl suggests that any negligence on the decedent’s part would also be a question for the jury.

Given the facts of this case, such as the fact that appellee was aware that its members were hunting near CR 99, that there was a reasonable chance that the dogs would enter the roadway, that dogs had been killed on the roadway, and the fact that club members were directed to try to catch the dogs when possible, appel-lee was able to foresee that some injury to an individual, especially a child, was likely to result in some manner as a consequence of its alleged negligent acts. See McCain, 593 So.2d at 502 (noting that it is immaterial that the defendant can not foresee the precise manner in which the injury occurred or its exact extent); Townsend, 642 So.2d at 50 (holding that it is not necessary for the initial tortfeasor to foresee the exact nature of the injury or the precise manner in which the injury occurs as long as he or she is able to foresee that some injury is likely to result in some manner as a consequence of his or her negligence). As the supreme court has held and as the cases cited herein demonstrate, the issue of proximate causation focuses on a specific factual inquiry and should generally be left to the fact-finder to resolve. See McCain, 593 So.2d at 502; Pamperin, 634 So.2d at 1139 (noting that the circumstances under which a court may resolve the question of proximate cause as a matter of law are extremely limited). Because we are unable to say that reasonable persons could not differ as to whether the facts of this case establish that appellee’s action in conducting a hunt near CR 99 constituted the proximate cause of the decedent’s death, we REVERSE the trial court’s Summary Final Judgment and REMAND the case for further proceedings.

ALLEN and PADOVANO, JJ., Concur.

      . According to appellee's then-president, Lonnie Majors, the hunting area consisted of “[ejight thousand something acres.” The record indicates that drive hunting entails using dogs to chase deer to those open areas in which hunters have a clear shot.

      . Notably, Judge Ferguson of the Third District later explained that he could not subscribe to the mode of locomotion theory as adequately distinguishing Pope from Stahl. See Barrish v. State, Dep’t of Transp., 509 So.2d 340, 340-41 (Fla. 3d DCA 1987) (Ferguson, J., specially concurring) (concurring in the majority’s affirmance of the trial court's summary judgment order because the case was factually indistinguishable from Pope while noting that the case was also factually similar to Stahl).


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Charles OLIVERI, Appellant, v. THE BATEMAN GROUP, INC., Appellee.
    No. 2D03-4786.
    District Court of Appeal of Florida, Second District.
    June 18, 2004.
    John G. Shiley of John G. Shiley, P.A., Miami, for Appellant.

      Carl Joseph Coleman and Ceci Culpep-per Berman of Fowler White Boggs Banker, P.A., Tampa, for Appellee.
   STRINGER, Judge.

Charles Oliveri seeks review of the order that awarded The Bateman Group, Inc. (“Bateman”) attorney’s fees and costs of $1431 .25 after the court dismissed Oli-veri’s complaint for failure to prosecute. We have jurisdiction to review the order as a final order under Florida Rule of Appellate Procedure 9.030(b)(1)(A) even though the order awards attorney’s fees and costs without expressly providing for its execution. See City of Haines City v. Allen, 549 So.2d 678 (Fla. 2d DCA 1989) (“The language ‘for which let execution issue’ is not essential to the finality of a judgment.”); Chan v. Brunswick Corp., 388 So.2d 274, 275 (Fla. 4th DCA 1980). But see DuBreuil v. Regnvall, 527 So.2d 249, 249 (Fla. 3d DCA 1988) (holding that the omission of execution language grants a judgment debtor a stay of execution and precludes the judgment creditor from executing on the judgment); Murphy v. Murphy, 378 So.2d 27, 28 (Fla. 3d DCA 1979).

We conclude that the trial court erred in awarding attorney’s fees and costs because Bateman had not filed a timely motion for attorney’s fees and costs as required by Florida Rule of Civil Procedure 1.525. See Mook v. Mook, 873 So.2d 363 (Fla. 2d DCA 2004); Gulf Landings Ass’n, Inc. v. Hershberger, 845 So.2d 344, 345-46 (Fla. 2d DCA 2003); Diaz v. Bowen, 832 So.2d 200, 200-01 (Fla. 2d DCA 2002).

Reversed.

FULMER and SILBERMAN, JJ„ Concur.


author: PER CURIAM.

text:
    Peter WILKINSON, Appellant, v. Kristen Beekman WILKINSON, Appellee.
    No. 4D03-930.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    H.T. Maloney of Patterson & Maloney, Fort Lauderdale, for appellant.
    Cynthia L. Greene of the Law Offices of Greene, Smith & Associates, P.A., Miami, and Christopher N. Link of the Law Offices of Christopher N. Link, Plantation, for appellee.
   PER CURIAM.

In this dissolution action, the former husband appeals an order striking as untimely his motion for attorney’s fees, suit money and costs, which was filed forty-five days after entry of the final judgment. We reverse.

Florida Rule of Civil Procedure 1.525 requires that a motion seeking costs and attorney’s fees be served within thirty days after the filing of the judgment. Here, however, the trial court accepted the parties’ stipulation for the reservation of jurisdiction to address fees and costs at a future hearing. The action of the trial court in this regard was tantamount to an enlargement of time under Florida Rule of Civil Procedure 1.090(b), and, consequently, the husband’s motion was not untimely. See Gulliver Acad., Inc. v. Bodek, 694 So.2d 675 (Fla.1997); Fisher v. John Carter & Assocs., Inc., 864 So.2d 493 (Fla. 4th DCA 2004).

REVERSED and REMANDED.

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Brian GROSS, Appellee.
    No. 4D03-2247.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellant..
    Samuel S. Fields of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.131(j)(requiring issuance of capias upon filing of information, if person named is neither in custody nor at large on bail); see also § 932.48, Fla. Stat. (2003)(requir-ing clerk to issue capias upon filing of information); Datema v. Barad, 372 So.2d 193 (Fla. 3d DCA 1979)(stating that nonappearance does not constitute evidence of non-availability for trial where defendant who is not in custody or on bail fails to appear pursuant to written notice rather than service of capias)(citing State ex rel. Barber v. Satin, 296 So.2d 636 (Fla. 3d DCA 1974), and State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla. 3d DCA 1978)).

STONE, STEVENSON and HAZOURI, JJ., concur.


author: POLEN, J.

text:
    Arthur JOHNSON, Superintendent of the Palm Beach County Schools, Appellant, v. Ancil DELUZ, et al., Appellees.
    Nos. 4D03-218, 4D03-223.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Randall D. Burks, West Palm Beach, for appellant.
    Thomas L. Johnson of Chamblee, Johnson & Haynes, P.A., Tampa, for appellees.
   CORRECTED OPINION

POLEN, J.

Upon appellees’/cross appellants’ motion for rehearing, and appellant/cross-appel-lee’s notice of technical errors, we withdraw our former opinion of February 18, 2004, and substitute the following in lieu thereof.

This appeal follows a final order instructing the appellant/cross-appellee to redact certain portions of an investigative report that was conducted on a public school principal. The report not only contained information about the principal, but also contained certain student identifying information that is subject to privacy concerns. As explained in detail below, we reverse the ruling of the trial court.

In order to clarify the issues raised in this rather unique appeal, a thorough discussion of the underlying facts is helpful. Amelia Ostrosky was the principal of the Dreyfoos School of the Arts. Ostrosky was the subject of an investigation by the superintendent, Arthur Johnson. Johnson’s investigation resulted in an 8000 page report. The report addressed Ostrosky’s misconduct as principal, referenced other faculty members of the school, and included confidential student information. Ap-pellees were classroom teachers at the Dreyfoos school.

When the report was completed, Johnson notified some of the faculty members that they were entitled to a copy of the report. Since the report contained information that may be considered derogatory and may end up in the personnel files of the employees, they had the statutory right to read and respond to it. He offered them the opportunity to see the report if they signed a confidentiality agreement regarding the student information contained in the report. In the alternative, he offered them the ability to have a copy of the report with the confidential information redacted. Both options were refused. The faculty members then filed petitions for writs of mandamus asking the circuit court to compel the school district to release the unredacted report to them without any restrictions. In response to the petitions for writs of mandamus, the school board filed a counterclaim asking the court for a declaratory judgment that would resolve the conflict between the employees’ right to review the report and the confidentiality of the student information.

Initially, the trial court entered an order directing the school board to provide the petitioners with the report with all student identifying information redacted. The order also required the school board to notify the students of their right to object to the redacted information. The court order explained that once the petitioners reviewed the report perhaps they would be better able to explain why the redacted material is necessary to their ability to respond to it or perhaps they would conclude they did not actually need the redacted information. Neither result occurred. Further, the trial court reasoned that perhaps after notification the students would not object to the release of the information in the report. This too was not the result. The trial court set aside time parameters giving the parties involved time to respond.

As a result of the notifications to students and parents and the redacted versions of the report being released, several students, parents and employees objected to the information contained in the report. Once again appellees requested an unre-dacted copy of the report so that they could better respond to the allegations.

After numerous hearings, the trial court ultimately ruled that it was not its place to determine what information ultimately remains confidential. The trial court pointed out that under applicable Florida law, if the report is turned over to the school board, it becomes public. In addition the trial court found that certain students mentioned in the report had privacy rights implicated, while others did not. The court ordered that the school board redact those portions of the report that identify a student who is defined as exceptional under section 228.041(18X2001), Florida Statutes. This appeal timely follows the trial court’s order.

Although the parties have not provided a copy of the actual report, we do not feel that seeing the report is necessary to our determination of the issues in this case because there does not appear to be any dispute as to the report’s contents for the issues presented here. Initially the parties take issue over the portion of the trial court ruling that ordered the school board to redact information on exceptional students. Neither party was happy with the trial court’s ruling in this regard. Ap-pellees contends that no information should have been redacted because they are unable to respond to such a heavily redacted report. In that same vein Appel-lees maintains that school officials are already given the responsibility of maintaining student confidentiality, so there is no threat in giving them the unredacted version of the report. Johnson’s position is that all student identifying information ought to be redacted, not just the information relating to exceptional students.

We agree with Johnson. Section 1012.31(3), Florida Statutes, which governs personnel files of public school employees, provides that any complaint and any material relating to the investigation of a complaint against a public school system employee shall be confidential until such time that the preliminary investigation ceases to be active, then the complaint and all such materials shall be open to the public pursuant to section 119.07(1). Section 119.07(1), Florida Statutes, provides in pertinent part: “[e]very person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so.... ”

Under these statutory provisions it is clear that once the investigation is no longer active, the report and all accompanying materials become part of the personnel file and then would be open for public inspection. The problem posed in this case is that the report also contains identifying information about students.

“Every student shall have a right of privacy with respect to the educational records kept on him or her. Personally identifiable records or reports of a student, and any personal information contained therein, are confidential and exempt from the provisions of s. 119.07(1).” § 1002.22, Fla. Stat. Further, “records and reports” is broadly defined. See § 1002.22(2)(c), Fla. Stat. Most importantly for purposes of this appeal:

“Student” means any child or adult who is enrolled or who has been enrolled in any instructional program or activity conducted under the authority and direction of an institution comprising a part of the state system of public education and with respect to whom an educational institution maintains educational records and reports or personally identifiable information, but does not include a person who has not been in attendance as an enrollee at such institution.

§ 1002.22(2)(d), Fla. Stat.

The statute does not differentiate between the confidentiality rights of students based on disability, as the trial court chose to. Although the report was not part of the record on appeal, neither party disputes that it contains information about students. The trial court aptly noted that students are afforded privacy protection under state and federal law. Although we recognize the daunting task the trial court had in this case, and that it was clearly well-meaning, we find no legal justification behind the trial court’s decision to distinguish the privacy rights of the students on the basis of any handicap. We conclude that reading the statutes together leaves no doubt that the legislature had no intention of permitting confidential student information to be made public. As a result, we reverse the order of the trial court and instruct that all student identifying information be redacted from the report prior to it being released.

Appellees/cross-appellants seek an unre-dacted copy of the report. Although the record indicated that they have yet to point to any particular part of the report that is so heavily redacted they are unable to respond to it, their position is that they are unable to respond to the report in a meaningful way. It is significant that Johnson has maintained the position that the only employee whose personnel file would include this report would be Ostro-sky. If the report does not become part of appellees personnel files, they have no right to respond to it, and therefore no right to see an unredacted copy.

Should the file end up in the personnel file of the appellee, section 1012.31, Florida Statutes would apply. Section 1012.31 specifically permits an employee to answer any materials contained in his or her personnel file. However, if the report contains student information, confidentiality concerns are triggered. When detailing the confidentiality rights of public school students, the legislature carved out specific exceptions. Those exceptions include in part:

However, personally identifiable records or reports of a student may be released to the following persons or organizations without the consent of the student or the student’s parent:
1. Officials of schools, school systems, technical centers, or public post-secondary educational institutions in which the student seeks or intends to enroll; and a copy of such records or reports shall be furnished to the parent or student upon request.
2. Other school officials, including teachers within the educational institution or agency, who have legitimate educational interests in the information contained in the records.

§ 1002.22(3)(d), Fla. Stat.

Appellees fit in the category of “other school officials” under sub-part 2. However, the need to see the information is not based on a legitimate educational interest as the statute requires. Furthermore, had one’s status as a teacher been sufficient to allow the dissemination of the confidential information, as the teachers contend, the legislature would not have included the requirement that the information be needed for a legitimate educational interest. As such, we conclude that although teachers are required to protect the confidentiality of students, being a teacher does not grant access to confidential student information. Most importantly we do not agree that the right to respond to the report trumps the right of the students to have their identifying information kept confidential.

Appellees/cross-appellants also contend that the report contains information that is statutorily prohibited from becoming part of a personnel file. Section 1012.31, Florida Statutes, provides that “[e]xeept for materials pertaining to work performance or such other matters that may be cause for discipline, suspension, or dismissal under laws of this state, no derogatory materials relating to an employee’s conduct, service, character, or personality shall be placed in the personnel file of such employee.”

As noted above, the actual report is not contained in this record. Further, there is no indication the trial court determined that any portion of the report would be subject to this statutory provision. However, if upon remand, the court finds that the report contains information that fits within section 1012.31 the information should not be included in the personnel file.

For these reasons, we reverse the order of the trial court. Upon remand we instruct the court to redact all student identifying information.

REVERSED AND REMANDED.

KLEIN and HAZOURI, JJ., concur.


author: GRIFFIN, J.

text:
    John M. ZAMBOS, M.D., Appellant, v. Bernhard M. MEIER, and Gloria P. Meier, his wife, Appellees.
    Nos. 5D03-1604, 5D03-2123.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    Rehearing Denied June 22, 2004.
    Jennifer S. Carroll, of Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for Appellant.
    James R. Provencher and Lisa Finaldi Simmons, of James R. Provencher, P.A., Orlando and Stephan W. Carter, Winter Park, for Appellees.
   GRIFFIN, J.

John M. Zambos, M.D. [“Dr. Zambos”], appeals a final judgment rendered in favor of the plaintiffs below, Bernhard M. Meier and his wife, Gloria P. Meier [“the Mei-ers”], in a suit for medical negligence. We conclude the trial court did not reversibly err in giving the challenged jury instruction and, accordingly, we affirm.

Dr. Zambos has filed as supplemental authority the decision of the Florida supreme court in D’Angelo v. Fitzmaurice, 863 So.2d 311, 319 (Fla.2003), seeking entitlement to the benefit of the new rule set forth in that opinion that:

[I]t is appropriate to set off against the economic damages portion of an award against one tortfeasor in a medical malpractice action the economic damages portion of any settlement recovered from a settling tortfeasor for the same incident causing the injury where the settling tortfeasor was not included on the verdict form.

We agree with Dr. Zambos that this is a “pipeline case” and that he is entitled to the benefit of this decision. See D'Aquisto v. Costco Wholesale Corp., 816 So.2d 1281 (Fla. 5th DCA 2002). We reject the Mei-ers’ contention that the setoff is inapplicable to this case because it had not been requested below by Dr. Zambos.

According to the formula set forth in footnote 12 of the D’Angelo opinion, the calculation urged by the Meiers appears to be substantially correct:

1. Percentage of jury’s award allocated to economic damages = $53,674.47 ($44,474.48 past + $9,000 future)/ $453,674.48 (total damages) = .118
2. Portion of settlement that nonset-tling defendant is entitled to set off = $75,000 x .118 = $8,850.

Accordingly, we remand this case to the trial court for application of the setoff and amendment to the final judgment.

AFFIRMED and REMANDED.

PLEUS, J., and EDWARDS-STEPHENS, S., Associate Judge, concur.

      . Also appealed is a final cost judgment.

      . 863 So.2d at 318.


text:
    John Joseph ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5538.
    District Court of Appeal of Florida, First District.
    April 7, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Leggs v. State, 802 So.2d 1190 (Fla. 1st DCA 2002)(citing Lett v. State, 805 So.2d 950 (Fla. 2d DCA 2001), which certified conflict with Yashus v. State, 796 So.2d 540 (Fla. 5th DCA 1999)).

BARFIELD, DAVIS, and BENTON, JJ., concur.


author: MONACO, J.

text:
    BREVARD COUNTY, Florida and the Brevard County Mosquito Control District, Appellants, v. Michael BLASKY and Anita Blasky, Appellees.
    No. 5D03-2934.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.
    Rehearing Denied June 23, 2004.

      Eden Bentley of Brevard County Attorney’s Office, Viera, and C. Allen Watts of Cobb & Cole, DeLand, for Appellant.
    Edward C. Tietig, Palm Bay, for Appel-lee.
   MONACO, J.

The appellants, Brevard County and the Brevard County Mosquito Control District (the “District”), appeal an Order of Taking concluding that the District has taken the real property of the appellees, Michael and Anita Blasky, by inverse condemnation. Brevard County and the District both defended this suit on a number of theories, including: that the land in question was dedicated by implication by a prior land owner; that the District had an irrevocable license which barred inverse condemnation; that the statute of limitations for a claim of inverse condemnation had run; and that, in any event, some of the land in question is sovereign submerged land and is owned by the State of Florida. After a non-jury trial the lower court disagreed with both the County and the District on these and all other bases. We do, too.

I. FACTS.

In 1978, Mr. and Mrs. Blasky purchased a 40-acre parcel located on the north side of the Port Canaveral Barge Canal on Merritt Island in Brevard County. Then-residence is on the higher 13 acres of the property. The remaining 27 acres of marshy land is at the heart of the dispute.

Mr. and Mrs. Blasky trace their title to a 1906 deed from the Trustees of the Internal Improvement Fund to the Florida Coast Line Canal and Transportation Company. The deed from the Trustees contained no conditions or reservations of retained rights, and specifically granted all riparian rights to the grantee. The Bla-skys were granted title of the same quality-

In 1954, a predecessor in title to Mr. and Mrs. Blasky granted to the District an unrecorded “easement” of ten years’ duration for purposes of mosquito control with respect to about 80 acres of land owned by the predecessor, including the 27 acres in question. Although the document was labeled an easement, it used the terms, “license,” “licensor,” and “licensee” within its body. The document authorized the District to enter the land, to construct dikes and dams around it, and then to flood the diked lands and to maintain the water level at a depth suitable to the District’s purposes. The idea was to control mosquito habitat. As salt marsh mosquitos only lay eggs in mud, their reproduction could be interrupted and controlled by keeping the area flooded.

The record is silent with respect to what happened after the ten years elapsed. The next significant legal event occurs in 1978, when Mr. and Mrs. Blasky bought the property. They, of course, admitted that they knew of the impoundment and of the improvements installed by the District (Mr. Blasky is a real estate broker and, as one can imagine, the new owners fully supported mosquito control in the area), but neither they, nor the District had any discussion on the subject of the District’s continued use of the land until 1992. In that year the District wrote to Mr. and Mrs. Blasky and offered either to purchase the 27 acres from them outright, or to obtain a recordable easement. In exchange for the latter, the District offered to grant the Blaskys certain tax relief regarding the land. Mr. and Mrs. Blasky were not inclined to accept either proposal, but did write a letter in 1994, that gave their revocable permission to the District to continue to flood and regulate the depth of waters on the 27 acres, but only for mosquito control purposes. The Blaskys neither asked for, nor received any consideration for the grant of this limited privilege to the District, and continued to pay the full amount of real property taxes levied on the property.

A year later, as noted by the trial judge, “the fur began to fly.” Brevard County had a Stormwater Management Plan prepared for North Merritt Island, including the troublesome 27 acres. After a fuss about who was trespassing on whose land, the Florida Department of Environmental Protection, asserted title to the Blasky’s property and contested their right to maintain a foot bridge over a feeder canal from their home to the 27 acre impoundment. The feeder canal was part of the “easement” area being used by the District as part of the 1954 agreement. Threats of $10,000 per day fines ensued to the considerable consternation of Mr. and Mrs. Bla-sky. Brevard County then got into the act and instituted its own code violation proceeding against the Blaskys for failure to obtain a permit for the bridge. Mr. and Mrs. Blasky then learned that the Storm-water Plan reflected that their 27 acres would be used as a stormwater storage area without their consent, and without compensation. Finally, Mr. and Mrs. Bla-sky discovered in 1997, that the Stormwa-ter Plan actually prepared for and received by Brevard County showed that the 13 acres on which their residence was located, as well as the 27 acres in the impoundment, were both in the stormwater storage area. The trial judge viewed the inclusion of the Blasky home in the stormwater plan as “cavalier and irresponsible,” and lamented that “someone writing the plan did not even take the trouble to see if any portion of the plan contained a home.”

It should not have come as a surprise to either the District, Brevard County, or the Florida Department of Environmental Protection that in 1998, Mr. and Mrs. Bla-sky sent the District and County a letter revoking their permission for the District to use their 27 acres. The District, however, ignored the letter and continued to use the area despite the revocation of permission. Eventually, the Blaskys brought suit for inverse condemnation and other relief.

After a two day non-jury trial during which the trial judge received 59 exhibits and considered the lay and expert testimony of ten witnesses, the court rejected the District’s defenses and determined that the District had taken the Blasky’s land. This appeal followed.

II. DEDICATION BY PRIOR AND CURRENT OWNERS.

The District maintains that the predecessors in title to Mr. and Mrs. Blasky acquiesced in the construction of the mosquito control impoundment on the 27 acres for many years after the original ten year “easement” concluded. Thus, according to the District, the silence of the Blaskys and their predecessors worked a dedication by implication. The trial court rejected this position.

Common law dedication is the setting apart of land for public use. See City of Miami v. Florida East Coast Ry. Co., 79 Fla. 539, 84 So. 726 (1920). To constitute a dedication, whether an express dedication or an implied dedication, there must first be shown a clear intention by the owner, as indicated by his or her words or acts, to offer the land for public use. Thereafter, there must be an acceptance of the dedication by the public. See Hollywood, Inc. v. Zinkil, 403 So.2d 528 (Fla. 4th DCA 1981). The quality of proof required of the intention to dedicate is “clear and unequivocal,” and the burden of proof is on the party asserting the existence of the dedication. See Star Island Assocs. v. City of St. Petersburg Beach, 433 So.2d 998, 1003 (Fla. 2d DCA), review denied, 440 So.2d 351 (Fla.1983).

Although the act of dedication is affirmative in character, it does not necessarily have to be accomplished by a formal act or formal dedication. Dedication may also result from the conduct of the owner. See Mainor v. Hobbie, 218 So.2d 203, 205 (Fla. 1st DCA 1969). Thus, dedication can be accomplished by a written grant, or affirmative acts, or even permissive conduct on the part of the dedicator. However the owner sees fit to indicate the intention to dedicate the land to the public use will meet the requirements of the common law. See City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352, 353 (1923).

In a seminal opinion by Justice Terrell, the Florida Supreme Court identified the most common ways to express one’s intention to dedicate lands for public use:

(1) written instrument executed for that purpose; (2) filing a plat or map of one’s property designating thereon streets, alleys, parks, etc.; (3) platting one’s lands and selling lots and blocks pursuant to said plat indicating thereon places for parks, streets, public grounds, etc.; (4) recitals in a deed by which the rights of the public are recognized; (5) oral declarations followed by acts consistent therewith; (6) affirmative acts of the owner with reference to his property, such as throwing it open in a town, fencing and designating streets thereon; (7) acquiescence of the owner in the use of his property by the public for public purposes.

Katsch, 98 So. at 353. Justice Terrell went on to say, however, that mere use by the public over an extended period can be regarded only as a license that is revocable at the pleasure of the owner, unless public and private interests “have been acquired upon the faith of the supposed dedication, which would be materially impaired if the dedication were revoked.” Id.

Similarly, the acceptance of the dedication by the public does not have to be by a formal act, but may be implied by the improving or repairing of the property, or from any act with respect to it that clearly indicates an acceptance. See Smith v. City of Melbourne, 211 So.2d 66, 68 (Fla. 4th DCA 1968). Once again, however, the acceptance of the dedication must be clear, satisfactory and unequivocal. See City of Miami Beach v. Miami Beach Improvement Co., 153 Fla. 107, 14 So.2d 172, 175 (1943). Thus, in Smith, the Fourth District Court of Appeal held that where the defendant’s predecessor in title had not protested when a road was constructed over her property many years before, and the deed conveying the property to the defendants stated that the land was subject to a road right-of-way, a common law dedication was accomplished, and the defendants were not entitled to. compensation when the city widened the road.

The arguments of the parties in connection with the dedication issue can be simplified, as follows. The District says that Mr. and Mrs. Blasky and their predecessors were silent between 1964 and 1994, while the impoundment was maintained by it. Mr. and Mrs. • Blasky say that there was no evidence introduced at trial to show that the silence was intended as a dedication. In fact, Mr. Blasky testified specifically that he never intended to dedicate the 27 acres for public use, and that his actions substantiate his lack of intent in this regard. The District admits that the only written evidence on this issue was the 10-year easement that it obtained in 1954. No evidence, written or oral, was introduced to show that any previous title holders intended to dedicate the land to the public.

Moreover, the Blaskys point out that the fact that there was originally a 10-year easement granted by their predecessors to the District confirms that a permanent easement was never intended. When considered in tandem with the 1992 request from the District to secure from Mr. and Mrs. Blasky a more durable right to occupy the 27 acres, the obvious implication is that even the District did not think at that time that it had a permanent right to use the land by reason of a dedication. Finally, the 1994 letter from Mr. and Mrs. Blasky to the District giving revocable permission to continue to use the land for mosquito control purposes strongly suggests that the Blaskys had never intended to make a permanent dedication of the land. Given the requirement that the party advancing the claim of dedication prove its position with clear and unequivocal evidence, we cannot disagree with the trial judge that the affirmative defense of dedication was not proved by either Brevard County or the District.

III. IRREVOCABLE LICENSE.

The County and the District next posit that the District holds an irrevocable license to the 27 acres based on the extensive improvements that it constructed to create the mosquito control impoundment. A license, in this context, is simply a permit to use another’s property. It conveys no interest in the land and may not be assigned or conveyed by the licensee. See Brown v. Rice, 716 So.2d 807, 809 (Fla. 5th DCA), review denied, 727 So.2d 903 (Fla.1998). Rather, it is a personal privilege, and generally may be revoked at the pleasure of the grantor. The right of revocation may be compromised, however, if permission is granted to use the property for a particular purpose or in a certain manner, and if the licensee has expended large sums or incurred heavy obligations for the permanent improvement of the property to which the license applies. See Seaboard Air Line Ry. Co. v. Dorsey, 111 Fla. 22, 149 So. 759, 761 (1932); Dupont v. Whiteside, 721 So.2d 1259, 1263 (Fla. 5th DCA 1998). This court has recognized, however, that an “irrevocable license” only arises under very narrow circumstances, and is applied only to the extent required to prevent inequity. See Tatum v. Dance, 605 So.2d 110, 113 (Fla. 5th DCA 1992), approved, 629 So.2d 127 (Fla.1993). Its duration, moreover, is limited only to the time necessary to protect the reliance investment of the licensee. See Id.

In the present case the predecessor in title to Mr. and Mrs. Blasky gave the District a document in 1954, that purported to establish an “easement” of ten years’ duration. The parties to that document, however, are referred to as “licensor” and “licensee,” and the document provides that the licensor shall retake control of the property prior to the expiration of the term. More specifically the document states:

It is mutually agreed that licensor may release any portion of the diked area from this easement; provided, Licensee will construct and maintain at his own expense and at no cost to Licensee [sic], a dike around the area so released from this easement.

We conclude that despite its name, the document is a license, not an easement. An easement, which is an interest in land, and runs with the land, cannot ordinarily be revoked by the grantor without the consent of the grantee. As a license is not an interest in land, it cannot be assigned or conveyed, and is generally revocable by the licensor. See Dupont, 721 So.2d at 1263; Brown. If the language of an agreement reflects that the grantor can revoke permissive rights under certain circumstances, the agreement can typically be no more than a license. See labour v. Toppino, 293 So.2d 123, 127 (Fla. 3d DCA 1974). Because the 1954 agreement fits this definition, it is a license.

The more important subset of this discussion concerns whether the license became irrevocable at some time before Mr. and Mrs. Blasky rescinded the license in 1998, because of some inequity that would result to the licensee. See Tatum. The District points to the expenditure it made in creating an 800-acre impoundment that includes the 27 acres belonging to Mr. and Mrs. Blasky. But it was quite willing to make this investment on the basis of a relatively short term 10-year license in 1954. Moreover, there was no evidence presented at trial regarding the cost of building the impoundment or whether any inequity would result by withdrawing 27 acres from the 800 acre project. Finally, it is abundantly clear that the District believed in 1992 that it had an impermanent license to use the property because it tried for two years to effect a more permanent relationship. The District seemed perfectly happy to rely on the 1994 Blasky letter giving it continued permission to use the 27 acres for mosquito control. The trial judge apparently concluded that the District and Brevard County failed to demonstrate that an inequity would result from revocation of the license.

We find ourselves in agreement with the ultimate finding of the trial court that the District and Brevard County failed to establish the affirmative defense that the license was irrevocable. Because the District failed to establish the irrevocability of the license, Mr. and Mrs. Blasky were free to revoke it at any time.

IV. SUBMERGED LANDS.

We last consider the argument of Brevard County and the District that because some of the 27 acres in an area known as Sykes Creek is navigable, the land beneath the navigable portion belongs to the State of Florida, and not to Mr. and Mrs. Blasky. The County and the District argue from this premise that Mr. and Mrs. Blasky would not be entitled to compensation for the taking of lands that belong to the State, and that the trial court erred in its determination that the Blaskys are entitled to be compensated for the entirety of the 27 acres.

Title to lands under navigable water is held by the state pursuant to Article X, Section 11, of the Florida Constitution. The determination of navigability is to be made as of 1845, the date Florida became a state. See Board of Trustees of Internal Improvement Trust Fund v. Florida Pub. Util. Co., 599 So.2d 1356, 1357 (Fla. 1st DCA), review denied, 613 So.2d 4 (Fla.1992) (citing Odom v. Deltona Corp., 341 So.2d 977, 988 (Fla.1976)). Whether a body of water is navigable depends upon the application of existing law to the particular facts of each case. See Florida Pub. Util. Co. at 1358.

Navigability is generally a question fact. See Odom, 341 So.2d at 988. Whether a body of water is navigable depends on whether the body of water is permanent in character, and whether in its ordinary and natural state, it is navigable for useful purposes and so situated that it may be used for purposes common to the public in the locality where it is located. See State Bd. of Trustees of Internal Improvement Trust Fund v. Laney, 399 So.2d 408, 409-10 (Fla. 3d DCA 1981). The facts that are relevant to the issue of navigability include the physical characteristics of the body of water (such as size and depth), and other conditions that make the water body useful for public purposes; and the manner and extent of public or private commercial or recreational usage. See Florida Pub. Util. Co., 599 So.2d at 1357.

The trial court began his analysis of the evidence of navigability as follows:

Baron Sykes had it easy. All he had to do was wrestle an alligator in 1857 up a stream that now bears his name because of the incident. It is left to the undersigned to determine how far north a log could have then floated on that same Creek one hundred-forty-six years later. I presume both the Baron and the alligator are dead and cannot be of any help.

After a detailed review of the evidence related to the history and physical characteristics of Sykes Creek, the trial judge found as a fact that:

At all times relevant to this case, the east 27 acres were not navigable and therefore not sovereign lands under the test set forth in Florida Board of Trustees v. Public Utilities Co., 599 So.2d 1356 (Fla. DCA 1st 1992)(sie), cited by Defendants and thus subject to private ownership and condemnation. This property was taken from the Plaintiffs on June 22, 1998.

Upon review of the record, we conclude that there is substantial competent evidence undergirding the finding of the trial court that none of the 27 acres is owned by the State, and that all of it is owned by Mr. and Mrs. Blasky.

V. CONCLUSION.

While there were other issues raised by Brevard County and the District, including an argument that the statute of limitation on asserting inverse condemnation had run, we deem them without substantial merit and unnecessary to discuss. As no error has been demonstrated, we affirm the Order of Taking rendered in this case.

AFFIRMED.

PETERSON and THOMPSON, JJ„ concur.

      . The trial court found it curious that Brevard County accepted taxes from Mr. and Mrs. Blasky and their predecessors on the entirety of the 27 acres during all of the years preceding this dispute, but now assert that a significant part of the land actually belonged to the State.


author: PALMER, J.

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. BARNES FAMILY CHIROPRACTIC, et al., Respondents.
    Nos. 5D03-135, 5D03-138, 5D03-139, 5D03-140, 5D03-141, 5D03-142.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Certification Denied June 23, 2004.

      Gregory A. Victor, Jack R. Reiter and Omar Ortega of Adorno & Yoss, P.A., Miami for Petitioner.
    Shannon McLin Carlyle, Christopher V. Carlyle and Gilbert S. Goshorn, Jr., of the Carlyle Appellate Law Firm, The Villages, and Kimberly P. Simoes of Susan W. Tol-bert, P.L., Daytona Beach for Respondents.
    William F. Merlin, Jr. and Mary E. Kes-tenbaum of Gunn Merline, P.A., Tampa, Amicus Curiae for The Academy of Florida Trial Lawyers.
   PALMER, J.

ON MOTION FOR REHEARING

Respondents, Barnes Family Chiropractic, et al., filed a motion for rehearing of this court’s opinion dated June 20, 2003, which granted Allstate’s petitions for writs of certiorari and quashed the trial court’s orders awarding attorney’s fees. We grant the motion, withdraw our prior decision, and issue the following opinion in its stead.

In these six consolidated personal injury protection (PIP) cases, Allstate filed six basically identical petitions for writ of cer-tiorari requesting that this court quash several non-final' orders entered by the circuit court, acting in its appellate capacity, which awarded attorney’s fees on the basis of sections 57.105, 627.48 and 627.736 of the Florida Statutes. Concluding that the circuit court departed from the essential requirements of law in awarding attorney’s fees under section 57.105 of the Florida Statutes, we grant the instant petitions and quash those portions of the circuit court’s orders. However, concluding that the trial court’s alternative provisional awards of attorney’s fees under sections 627.428 and 627.736(7) of the Florida Statutes were proper, we deny Allstate’s petitions as to said rulings.

Respondents filed actions in the county court seeking to recover PIP benefits. Allstate responded by filing multiple motions to disqualify respondents’ counsel on the basis of counsel’s prior employment by Allstate. Allstate also filed multiple motions to stay the disqualification proceedings. When the county court denied Allstate’s motions for stay, Allstate filed multiple petitions for writs of certiorari to the circuit court, sitting in its appellate capacity, seeking review of the county court’s ruling. The circuit court denied those petitions and entered orders awarding respondents’ their appellate attorney’s fees pursuant to section 57.105 of the Florida Statutes. The circuit court also provisionally granted respondents their attorney’s fees pursuant to sections 627.428 and 627.736 of the Florida Statutes. Allstate then filed the instant petitions for writs of certiorari to this court for review of the circuit court’s attorney’s fee awards.

As to the award of attorney’s fees pursuant to section 57.105 of the Florida Statutes, we grant Allstate’s petitions and quash the trial court’s orders awarding attorney’s fees for the reasons set forth in Allstate Ins. Co. v. Titusville Total Health Care, 848 So.2d 1166 (Fla. 5th DCA 2003)(holding that certiorari was not an improper procedural remedy for review of disqualification order and thus section 57.105 fees were not recoverable for proceedings associated with certiorari petition).

However, the circuit court correctly determined that the respondents were entitled to receive a provisional award of attorney’s fees based upon their successful defense of Allstate’s petitions for writs of certiorari filed in relation to the motions to stay the disqualification proceedings.

PIP claims are covered by section 627.736(8) of the Florida Statutes, which provides in relevant part:

627.736 Required personal injury protection benefits; exclusions; priority; claims.—
Applicability of provision regulating attorney’s fees. — •
* * *
(8) With respect any dispute under the provision of section 627.730-627.7405 between the insured and the insurer, or between an assignee of an insurer’s rights and the insurer, the provision of section 627.428 shall apply, except as provided in sub-section (11).

§ 627.736(8), Fla. Stat. (2002). Section 627.428(1) of the Florida Statutes provides:

627.428 Attorney’s fee.—
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

§ 627.428(1), Fla. Stat. (2002).

The purpose of section 627.428 is to discourage insurance companies from contesting valid PIP claims and to reimburse successful insureds for their attorney’s fees when they are compelled to sue to enforce their insurance contacts. See Ins. Company of North America v. Lexow, 602 So.2d 528 (Fla.1992).

Allstate contends that the circuit court’s provisional awards of attorney’s fees to the respondents pursuant to these sections were improper because the petitions for writs of certiorari and the underlying motions for stay of the disqualification proceeding were collateral matters unrelated to insurance coverage. We disagree. In order for the respondents to succeed on their PIP actions filed in the county court, it was reasonable and necessary for them to defend against Allstate’s efforts to disqualify their counsel and to stay the disqualification proceedings, as well as any appellate review sought by Allstate as to those matters. As such, the underlying actions were disputes covered by section 627.428 and, therefore, the respondents are entitled to recover all reasonable attorney’s fees incurred in addressing those matters if they ultimately prevail in this matter.

Petition GRANTED as to award of attorney’s fees pursuant to section 57.105 and said award is hereby QUASHED. Petition DENIED as to the conditional award of attorney’s fees pursuant to sections 627.428 and 627.736.

SHARP, W., and PLEUS, JJ., concur.

      . In responding to Allstate's petition, respondents limited their arguments to a request that this court deny the petitions as they pertain to the circuit court’s award of attorney's fees pursuant to 627.428 and 627.736, not ever arguing that the fees were properly awarded pursuant to section 57.105.


text:
    SOUTHTRUST BANK, Appellant, v. PARTSBASE.COM, INC., and Ariba, Inc., Appellees.
    No. 4D03-1452.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2004.
    Rehearing Denied July 8, 2004.

      David W. Langley of David W. Langley, P.A., Fort Lauderdale, for appellant.
    Jill Nexon Berman of Berman, Rennert, Vogel & Mandler, P.A., Miami, for appel-lee Partsbase.com., Inc.
    John C. Dotterrer and Stephen J. Giov-inco of John C. Dotterrer, P.A., Palm Beach, for appellee Ariba, Inc.
    Virginia B. Townes and J. Thomas Card-well of Akerman Senterfitt, Orlando, Ami-cus Curiae Florida Bankers Association.
   PER CURIAM.

In the underlying action, PartsBase.com, Inc. (drawer) filed a one count complaint against SouthTrust Bank (Bank) under section 674.403, Florida Statutes (2000) for damages arising from the payment of a check after the drawer had delivered a stop-payment order. Bank filed a third-party complaint against the payee of the check, Ariba, Inc. (payee). Bank appeals a final judgment finding it liable to the drawer for the full amount of the check ($161,564), and finding no liability on the part of payee.

Bank claims the trial court erred in denying its motions for summary judgment and directed verdict, arguing its rights of subrogation entitled it to raise any defense raised by payee. We agree and reverse. The drawer conceded on several occasions that payee had an absolute defense of release against any attempts by drawer to recover the amount of the stopped check. Hence, Bank, as subrogee of payee, was entitled to the same defense.

Drawer and payee had an ongoing contractual relationship pursuant to a software licensing agreement. At the time, drawer maintained a business checking account with Bank. In partial payment of amounts owed payee under the licensing agreement, drawer issued to payee check number (#) 2472, in the amount $161,564. Payee did not receive the check and in response to payee’s complaints, drawer issued a replacement check for the same amount and requested a stop-payment on check #2472. Bank then inadvertently paid check #2472 in spite of the stop-payment order. Payee negotiated both checks in June and retained all of the funds. The checks appeared on drawer’s July bank statement.

Upon learning that check #2472 had been paid, drawer notified payee that it wanted to rescind the software licensing agreement. After negotiations, the two parties executed a Settlement Agreement and Mutual General Release (Settlement and Release), pursuant to which all outstanding amounts under the licensing agreement would be forgiven, drawer would return or destroy the software in its possession, and payee would pay drawer $500,000. In addition, drawer agreed to release payee from all claims known and unknown as of that date. Specifically, the Settlement and Release provided:

“2. Subject to its rights under this Settlement Agreement, Drawer hereby re leases and forever discharges Payee, and TRADEX, and each of their respective past and present officers, directors, employees, agents, attorneys, affiliates, shareholders, and predecessors in interest (the “Payee Releasees”), and each of them, jointly and severally of and from any and all causes of action, damages, claims, liabilities, debts, attorneys’ fees, costs and demands of whatever kind or nature, in law or in equity, both known and unknown, whether contingent or fixed, that Drawer has had in the past or now has against the Payee Releasees, whether related or unrelated to the Dispute (hereinafter the ‘Release Language’). [e.s.]”

Florida’s adoption of Article 4, Section 403 of the Uniform Commercial Code (U.C.C.), imposes on all Florida banks the obligation to accept stop-payment orders from their customers, and provides a remedy to a customer if a check is paid over a valid stop-payment order. See § 674.403(1), Fla. Stat. (2000). The Bank’s liability, however, is limited, in that:

“[t]he Bank may be liable to its customer for the actual loss incurred by the customer resulting from the wrongful payment of an item contrary to a valid and binding stop-payment order ....” [e.s.]

§ 674.403(3), Fla. Stat. (2000). Thus, if the customer suffers no actual loss, the Bank is not liable for any damages. See Southeast First Nat’l Bank v. Atlantic Telec, Inc., 389 So.2d 1032, 1033 (Fla. 5th DCA1980) (“Simply because a bank pays a check over a stop payment order does not entitle the customer to recover damages against the bank-”). The customer has the burden of establishing the fact and amount of the loss. Id.; § 674.403(3), Fla. Stat. (2000).

The statute makes clear, however, that the drawee bank has the right of subrogation to prevent a windfall. “The drawee is, however, entitled to subrogation to prevent unjust enrichment.” U.C.C. § 4-403 cmt. 7 (2000). Under section 674.407:

“If a payor bank has paid an item over the order of the drawer or maker to stop payment ... or otherwise under circumstances giving a basis for objection by the drawer or maker, to prevent unjust enrichment and only to the extent necessary to prevent loss to the bank by reason of its payment of the item, the payor bank is subrogated.to the rights:
(1) Of any holder in due course on the item against the drawer or maker;
(2) Of the payee or any other holder of the item against the drawer or maker either on the item or under the transaction out of which the item arose; and
(3) Of the drawer or maker against the payee or any other holder of the item with respect to the transaction out of which the item arose.” [e.s.]

§ 674.407, Fla. Stat. (2000); see also E. PeteRS, A Negotiable InstRuments PRIMER 79 (1974) (“The trade-off for requiring banks to accept, stop orders under [§ 674.403(1) ] was the limitation of their liability under [§ 674.403(3) ] and § 674.407].”). The bank’s right to recover from the party who benefitted from the payment is further discussed in the official commentary to the UCC:

“If a bank pays an item over such an order it is prima facie liable, but under subsection (c) of Section 4 — 403 the burden of establishing the fact and amount of loss from such payment is on the customer. A defense frequently interposed by a bank in an action against it for wrongful payment over a stop-payment order is that the drawer or maker suffered no loss because it would have been liable to a holder in due course in any event. On this argument some cases have held that payment cannot be stopped against a holder in due course. Payment can be stopped, but if it is, the drawer or maker is liable and the sound rule is that the bank is subrogated to the rights of the holder in due course. The preamble and paragraph (1) of this section [§ 674.407] state this rule.”

U.C.C. § 4-407 cmt. 1 (2000). “[T]he statute is meant to provide the payor bank with the most comprehensive and effective remedy possible ... unjust enrichment of all defendants joined in the action is not a requirement.” Prof'l Sav. Bank v. Galloway Farm Nursery, Inc., 514 So.2d 76, 77 (Fla. 3d DCA 1987).

As other jurisdictions have held, a bank’s subrogation rights are fixed at the time the check is wrongly honored — i.e., the later acts of the drawer and the payee, where the bank is not a party, cannot strip the bank of its subrogation rights. “[I]t would be inequitable to permit [a] private agreement to defeat the Bank’s subrogation rights which were acquired prior to the execution of the release[].” Morgan Guar. Trust Co. v. Hauser, 22 U.C.C. Rep. Serv.2d (CBC) 851, 1994 WL 123596 (N.Y.Sup.Ct.1994) (mutual releases between parties to the check did not extinguish Bank’s subrogation rights regarding proceeds of mistakenly honored check); see also Mfr.’s Hanover Trust Co. v. Ava Indus., Inc., 98 Misc.2d 614, 414 N.Y.S.2d 425, 426 (N.Y.Sup.Ct.1978) (“It is clear that the [bank], at the time it paid the check, became entitled to any claim arising out of the transaction which [the drawer] had against [the payee] or which [the payee] had against [the drawei"]; and the subsequent settlement of the defendants’ dispute between them in no way altered or extinguished the [bank’s] rights in subro-gation.”).

Here, it is undisputed that drawer executed the Settlement and Release in August 2000, well after both checks had been paid. It released payee from all claims known and unknown as of that date. In its motion for summary judgment against payee, drawer admitted the release barred any claims drawer had against payee. Drawer had previously admitted, in response to payee’s request for admissions, that it had no right to recover or collect from payee the funds paid through check # 2472 because of the release. During the cross-examination of drawer’s first witness regarding its admission as to the effectiveness of the release, counsel stated: “It’s [an] admission. It’s in. We don’t have to talk about this anymore. We admit it.” In closing argument, counsel for drawer admitted: “We did give up our rights against [payee] because we signed a very broad settlement agreement, not knowing that there was this problem.”

The parties also stipulated to a jury instruction stating “[Bank] is the subrogee of both [payee] and [drawer]. Subrogation is the substitution of one person in the place of another....” Drawer also agreed to the following jury instruction: “Section 674.407 is intended to prevent an unfair loss to a Bank by giving the Bank the right to step into the shoes of any party who is legally entitled to the money represented by the check.”

The only legal issue to which drawer did not agree, and the only issue before the trial court on Bank’s motion for summary judgment and at trial, was whether Bank’s rights of subrogation under section 674.407 included the defense of release. According to the official commentary to the U.C.C., they do. Comment 5 states:

“The spelling out of the affirmative rights of the Bank in this section does not destroy other existing rights (Section 1-103). Among others these may include the defense of a payor Bank that by conduct in recognizing the payment a customer has ratified the Bank’s action in paying in disregard of a stop-payment order or right to recover money paid under a mistake.” [e.s.]

UCC § 4-407 cmt. 5 (2000); cf. Allstate Ins. Co. v. Boynton, 486 So.2d 552 (Fla.1986); Allstate Ins. Co. v. Candreva, 497 So.2d 980 (Fla. 4th DCA 1986); Allstate Ins. Co. v. Barba, 487 So.2d 1223 (Fla. 4th DCA 1986); Travelers Indem. Co. v. Integon Gen. Ins. Co., 748 So.2d 362 (Fla. 5th DCA 2000) (all holding that the insurance carrier effectually stands in the uninsured motorist’s shoes and can raise and assert any defense that the uninsured motorist could urge) [e.s.]; see also Sun Bank v. Jakubowski, 583 So.2d 782, 783 (Fla. 5th DCA 1991) (“The subrogee acquires certain rights of the subrogor and is subject to all available defenses the defendant can assert against the subrogor -”). [e.s.]

Bank also contends that drawer’s claim was without merit because drawer ratified the payment of check # 2472 over the stop-payment order by electing to go forward with the Settlement and Release after learning of the payment of the check. Because we find that Bank was entitled to summary judgment or a directed verdict on the issue of release, however, we decline to address the ratification claim.

REVERSED AND REMANDED.

FARMER, C.J., GUNTHER and TAYLOR, JJ., concur.