author: SMITH, Judge.

text:
    Olivene G. GLASS, Individually and as personal representative of the Estate of Gilbert M. Glass, Jr., Deceased, Appellant, v. J. A. CAMARA, Appellee.
    No. KK-343.
    District Court of Appeal of Florida, First District.
    March 20, 1979.
    Rehearing Denied May 4, 1979.

      Edwin A. Green, II, Tallahassee, for appellant.
    Ray L. Wilson, Jacksonville, for appellee.
   SMITH, Judge.

Plaintiff appeals from a final summary judgment for the defendant physician. The trial court held that plaintiff’s action for the wrongful death of her husband, allegedly the result of inadequate medical diagnosis of his cancer, was barred by the two-year statute of limitations. Section 95.-11(4), Florida Statutes. If the two-year limitation period began to run on the date of death, May 29, 1974, the action was barred when filed on July 25, 1977. In the interim plaintiff lost the benefit of tolling the running of the statute by medical mediation proceedings, because the action was not filed within 60 days after termination of the mediation panel’s jurisdiction. Section 768.44(4), Florida Statutes (1977); Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977).

Construing Section 95.11(6), Florida Statutes (1973), this court held that the two-year limitation period on a wrongful death action for medical malpractice runs from the date of death although in case of injury only the period does not begin until plaintiff discovers or reasonably should discover the injury. Fletcher v. Dozier, 314 So.2d 241 (Fla. 1st DCA 1975). Fletcher’s construction of Section 95.11(6), Florida Statutes (1973), was hinged to that statute’s clear distinction between actions for wrongful death and actions for “injuries to the person.”

An amendment to Section 95.11(4) in 1974 partially removed the language on which Fletcher was based. No longer did Section 95.11(4)(a) confine the benefit of a postponed limitation period, in case of excusable ignorance, to claims for “injuries to the person” by malpractice. The 1974 amendment of Section 95.11(4)(a) seemingly extended that benefit to all persons having an undiscovered cause of action for professional malpractice, although Section 95.11(4)(d) continued to provide separately, without qualification, for a two-year limitation on “[a]n action for wrongful death.” Whatever would be the proper construction of the 1974 legislation, comprehensive 1975 amendments to Section 95.11(4) made clear that the two-year statute does not begin to run on any action for medical malpractice, whether resulting in injury or in death, until “the cause of action is discovered or should have been discovered with the exercise of due diligence.” The 1975 amendments provide a four-year limit on undiscovered causes of action in the absence of fraud, concealment, or misrepresentation, providing that “in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued.” Plaintiff urges that the 1975 statute be applied retrospectively to preserve her cause of action which accrued May 29, 1974, but was not sued on until July 25, 1977. Plaintiff’s husband had not been dead two years when the 1975 legislation became effective to postpone the running of the limitation period on undiscovered causes of action for wrongful death by medical malpractice. We have held that a legislative lengthening of the period of limitations inures to the benefit of a claimant whose pre-existing claim is not yet barred by the former, shorter limitation period. Mazda Motors of America, Inc. v. S. C. Henderson & Sons, Inc., 364 So.2d 107 (Fla. 1st DCA 1978).

There is good reason for extending the benefit of Mazda to medical malpractice claimants, who are deterred in su-mg within two years after accrual of the cause of action by 1975 legislation making medical mediation a condition precedent. Section 768.133, Florida Statutes (1975); Section 768.44, Florida Statutes (1977). In compliance with the medical mediation statute, plaintiff filed a complaint for medical mediation on May 26, 1976, within two years of her husband’s death. If plaintiff had been privileged to maintain this action without first demanding mediation, the filing of this action on May 26, 1976, would have been timely by any reading of Section 95.11(4). Because plaintiff’s pre-existing cause of action was thus burdened with conditions precedent to suit imposed by the 1975 Legislature, it -is appropriate also to extend to her all beneficial extensions of the time for suit, including postponement of the limitation period until the cause of action is reasonably discoverable, which were enacted by the same session law. Chapter 75-9, Sections 5, 7, Fla.Laws.

This record contains no pleading or evidence suggesting when plaintiff discovered or should have discovered her asserted cause of action for her husband’s death on May 29,1974. The issue is therefore whether, on this appeal from a defendant’s summary judgment, the consequences of a silent record should be visited upon the plaintiff or the defendant.

A record that is silent on a determinative issue of fact forecloses summary judgment, for the movant’s burden is to “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla.R.Civ.P. 1.510(c). One would expect to find the “material” facts, concerning which all issues must be dispelled, in the pleadings whose office it is to make issues. In this case the pleadings are silent. Defendant affirmatively pleaded the bar of the statute of limitation in language even more conclusory and imprecise than that countenanced by Fla.R.Civ.P. form 1.965; defendant simply invoked the asserted bar of Section 95.11 and did not aver either that the action was filed more than two years after the cause of action accrued or that the action was filed more than two years after plaintiff discovered or should have discovered the asserted cause of action. Nor did plaintiff by reply seek to avoid the affirmative defense; she did not allege that she was excusably ignorant of the cause of action until within two years of filing. Fla.R. Civ.P. 1.100(a). Plaintiff interposed a wholly superfluous denial of the affirmative defense. See Trawick, Florida Practice and Procedure, section 11-6 (1978). In these circumstances the record’s silence was no impediment to a summary judgment for defendant if plaintiff’s knowledge or excusable ignorance of her cause of action was “immaterial” because not pleaded by plaintiff. But the summary judgment was improper if proof of plaintiff’s knowledge of the cause of action, or her means of knowledge, was essential to defendant’s establishment of the affirmative defense.

We hold that a defendant invoking the two-year limitation period prescribed by Section 95.11(4)(b) for medical malpractice actions must demonstrate that the action was commenced beyond two years after “the time the cause of action [was] discovered or should have been discovered with the exercise of due diligence.” Section 95.-ll(4)(a). So holding, we distinguish a line of Florida cases holding that the waiver or tolling of a statute of limitation, otherwise running continuously from the time the cause of action accrued, is a matter of avoidance which plaintiff must plead by reply to the affirmative defense. Tuggle v. Maddox, 60 So.2d 158 (Fla.1952); Proctor v. Schomberg, 63 So.2d 68 (Fla.1953); Akin v. City of Miami, 65 So.2d 54 (Fla.1953); A & G Aircraft Service, Inc. v. Johnson, 192 So.2d 74 (Fla. 4th DCA 1966); Young v. Williamson, 169 So.2d 856 (Fla. 2d DCA 1964). See also Trawick op. cit. supra, Sections 11-6 and 11-7; Bullen and Leake, Precedents of Pleadings at 631 et seq. (7th ed. 1915); and 54 C.J.S. Limitations of Actions §§ 375-77. Those authorities yet govern the pleading and proof of such matters as fraud, concealment, incompetency, absence from the state of the person to be sued, and recent acknowledgment of a debt otherwise barred; and a plaintiff seeking to avoid a statute of limitations in whole or part on one of those grounds must reply to avoid the affirmative defense, in order to set up a paper issue to which defendant’s motion for summary judgment may be addressed.

Our decision is supported by Cowan v. Turchin, 270 So.2d 449 (Fla. 4th DCA 1972), Petroleum Products Corp. v. Clark, 248 So.2d 196 (Fla. 4th DCA 1971), and Green v. Adams, 343 So.2d 636 (Fla. 4th DCA 1977), cert. den., 353 So.2d 673 (Fla.1977), construing statutes which like Section 95.11(4) postpone the running of the statute until plaintiff has notice of the legal injury. Contrast Houston v. Florida-Georgia Television Co., 192 So.2d 540 (Fla. 1st DCA 1966), in which notice to the plaintiff was held immaterial, due to the nature of the cause of action. Because it was essential to the proof of defendant’s affirmative defense, if not to its pleading, that plaintiff have had knowledge or the means of knowledge of her asserted cause of action more than two years prior to the filing of the complaint, it was error to grant defendant a summary judgment on a record lacking evidence on that issue.

We concede the difficulty of rationalizing our classification of this case with decisions associating accrual of a cause of action with plaintiff’s knowledge of it, instead of with those that require a reply of waiver or tolling to avoid a limitation statute running upon accrual of the cause in a strict sense. Section 95.11(10), Florida Statutes (1973), which formerly governed the limitation period for medical malpractice actions, leaped the doctrinal chasm by declaring that “the cause of action in such case [is] not to be deemed to have accrued until the plaintiff discovers, or through the use of reasonable care should have discovered, the injury.” Under such a statute it was not difficult to consider that the pleader of the affirmative defense, having the burden of showing when the cause of action “accrued,” must carry the day on the issue of plaintiff’s knowledge. The malpractice limitations statute in its present form, supra n. 1, does not attempt the miracle of associating accrual with notice; but our construction of the statute, though perhaps untidy, serves the same purpose of requiring the defendant to prove the staleness of plaintiff’s claim by reference to the time when plaintiff reasonably should have been expected to sue, given plaintiff’s knowledge or means of acquiring knowledge. In recognizing that element as a part of defendant’s affirmative defense, we do not intimate that the burden of proof is likewise on the defendant when, under the same Section 95.11(4)(b), the issue is whether the plaintiff’s ignorance due to defendant’s fraud or misrepresentation prevented the running of the statute pleaded as an affirmative defense. See Nardone v. Reynolds, 333 So.2d 25, 37 (Fla.1976) (“[Pjlaintiff must show both successful concealment of the cause of action and fraudulent means to achieve that concealment.”); MacMurray v. Board of Regents, 362 So.2d 969, 970 (Fla. 1st DCA 1978).

REVERSED.

McCORD, C. J., and MELVIN, J., concur.

      . Section 95.11(4)(a) and (b) now provides a two-year limitation period for:
      (a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence; provided, however, that the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.
      (b) An action for medical malpractice shall be commenced within two years from the time the incident giving rise to the action occurred or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued. An “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the four-year period, the period of limitations is extended forward two years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed seven years from the date the incident giving rise to the injury occurred.

      . Defendant’s third affirmative defense was:
      This action is barred by the Statutes of Limitation F.S.A. Section 95.1] and F.S.A. Section 768.44.
      Civil form 1.965 authorizes pleading in an inverted style:
      Each cause of action, claim and item of damages did not accrue within the time prescribed by law for them before this action was brought.

      . See Sections 95.04 and 95.051, Florida Statutes (1977); Section 95.031, Florida Statutes (1978 Supp.).


source: Caselaw Access Project

author: MILLS, Acting Chief Judge.

license: Public Domain

text:
    Livingston B. SHEPPARD, D. D. S., Petitioner, v. FLORIDA STATE BOARD OF DENTISTRY, Respondent.
    No. MM-136.
    District Court of Appeal of Florida, First District.
    March 20, 1979.
    Rehearing Denied May 2, 1979.

      Thomas Y. Infantino, Winter Park, for petitioner.
    Thomas J. Guilday of Huey, Camper & Guilday, Tallahassee, for respondent.
   MILLS, Acting Chief Judge.

Sheppard, a dentist, seeks review of a nonfinal order entered in a license revocation proceeding brought by the Board of Dentistry (Board) against him, requiring him to produce certain office records.

In July 1978, Sheppard was formally accused by the Board of violating Section 466.24(3)(d) and (e), Florida Statutes (1978). Count I alleged that he employed unlicensed personnel to perform dental services which may only be performed by a licensed dentist. Count II alleged that he employed dental auxiliaries who had not received the formal training approved by the Board, who performed auxiliary dental tasks without being under the direct supervision of a licensed dentist as required by Rule 21G-9.05 and Section 466.09, Florida Statutes (1978), and who were allowed to perform the tasks set forth in Rule 21G — 9.05 without examining the oral cavity of the patient prior to and after the performance of each task in accordance with the Rule.

After proceedings were instituted, the Board requested and the hearing officer issued a Subpoena Duces Tecum which required Sheppard to produce:

“1. Employee records showing names, addresses and duties of employees employed during 1978.
2. Records containing names and addresses of all patients receiving orthodontic services or who were seen by uncerti-fied or certified dental assistants employed by Respondent during 1978.”

Sheppard filed a Petition for Protective Order to Challenge Discovery in which he urged that the subpoena be quashed on the grounds that compliance with it would violate his right to remain silent and that the hearing officer failed to follow the precedent set in a prior administrative case. The Board filed a memorandum in opposition.

The order here under review was then issued which stated that Sheppard “must produce records required to be kept by Section 466.34 . . . together with his office records as to employees and patients” but that Sheppard “otherwise has a right to remain silent in regard to acts alleged in the accusation against him.”

The order of the hearing officer here follows the order entered on 28 September 1978 in the administrative case of Board of Dentistry v. Haas, Case No. 78-1031. Haas, a license revocation proceeding, held that a dentist could invoke the right to remain silent regarding the acts alleged in the accusation against him in a deposition discovery proceeding. The order here under review is consistent with the Haas order.

The order requires production of records required to be kept under Section 466.34, Florida Statutes (1978). This Section provides in pertinent part:

“Every duly licensed and registered dentist who uses the services of any unlicensed person for the purpose of constructing, altering, repairing, or duplicating any denture, partial denture, bridge, splint, or orthodontic or prosthetic appliance, shall be required to furnish such unlicensed person with a written work order . . .. This form shall be dated and signed by such dentist[s], and shall include the patient’s name or number with sufficient descriptive information to clearly identify the case for each separate and individual piece of work Such permanent file of work orders to be kept by such dentist or by such unlicensed person shall be open to inspection at any reasonable time by the board or its duly constituted agent. . . .”

The accusation filed against Sheppard charges that he authorized the use of unlicensed personnel to perform dental services under Section 466.04. Thus, any work orders maintained pursuant to Section 466.34 are subject to discovery.

The Court stated in Conner v. Alderman, 159 So.2d 890 (Fla. 2d DCA 1964):

“Suffice it to say, there was no merit to Alderman’s objection to the inspection on grounds of self-incrimination in the first place. It is within the proper exercise of the police power, where regulation of a vocation is in the public interest, to require the keeping of certain records and that they be made available for inspection. Such required records are not private papers and must be produced for inspection despite incriminating results to their maker. They are not protected by the privilege against self-incrimination.”-

The patient office records and employee office records the order requires Sheppard to produce are private business records, privileged and protected by the Fifth Amendment in a penal proceeding such as the one before us. 21 Am.Jur.2d, Criminal Law, Section 355; 81 Am.Jur.2d, Witnesses, Section 44 and Section 458.16, Florida Statutes (1977).

The order appealed is affirmed as to paragraph 2 and that part of paragraph 1 requiring the production of records required by Section 466.34. The order is reversed as to that part of paragraph 1 requiring production of office records as to employees and patients.

ERVIN, J., and MASON, Ernest E., Associate Judge, concur.


author: PER CURIAM.

text:
    C & B AIRWAYS CO., operating as Lease-A-Plane of Miami, Inc., and National Indemnity Co., and Piper Aircraft Corporation, Appellants, v. Caralee ASHURST, Individually and as personal representative of the Estate of John Ashurst, Deceased, Appellee.
    Nos. 78-1017, 78-1018, 78-1118 and 78-1119.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Rehearing Denied April 30, 1979.
    Walton, Lantaff, Schroeder & Carson and James Knight, Miami, Edna L. Caruso, West Palm Beach, Howard E. Barwick, Miami Shores, for appellants.
    Headley & Headley; Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Rys-kamp, Miami, for appellee.

      Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The judgments appealed from are affirmed as to the appellants C & B Airways Company and National Indemnity Company without prejudice to the appellant National Indemnity Company to properly raise the insurance coverage issue in a subsequent proceeding. In our view, no error has been demonstrated on this record as to these appellants. American District Electric Protective Co. v. Seaboard Air Line Railway Co., 139 Fla. 451, 190 So. 820 (1939) (syllabus no. 3); Williams v. Banning, 259 So.2d 725 (Fla. 2d DCA 1972).

The judgments appealed from are reversed as to the appellant Piper Aircraft Corporation on the ground that the plaintiff Caralee Ashurst failed to present evidence at trial to establish that the subject aircraft •herein had a defect sufficient to sustain a cause of action for breach of implied warranty or negligence. Although there was evidence in the record that the accident sued upon was caused by anti-symmetrical flutter, there is no evidence that such flutter was caused by a structural or design defect in the aircraft. The trial court, accordingly, erred in denying Piper Aircraft’s motion for a directed verdict as such motion should have been granted. Hormovitis v. Mutual Lumber Co., 120 So.2d 42, 46 (Fla. 2d DCA 1960); Stolmaker v. Bowerman, 100 So.2d 659, 660 (Fla. 3d DCA 1958).

Affirmed in.part; reversed in part.


author: BERANEK, Judge.

text:
    Willis C. WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 76-2548.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1979.
    Rehearing Denied May 2, 1979.
    Richard L. Jorandby, Public Defender, and Joseph R. Atterbury, Asst. Public Defender, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by defendant from a conviction and sentence on the charge of robbery with a firearm. Defendant, who was 16 years old at the time of the offense, was sentenced to 53 years and 39 days. He was transferred from the Juvenile Division to the Criminal Division of the Circuit Court and was tried, convicted and sentenced as an adult. Rather than sentencing the defendant to life in prison, the court sentenced defendant to his life expectancy of 53 years and 39 days.

Defendant contends error was committed in the initial order waiving juvenile jurisdiction to the Criminal Division and in the subsequent trial before a jury in the Criminal Division. We find the trial itself to be without error but reverse the waiver order.

Waiver of juvenile jurisdiction here was governed by § 39.09(2) Fla.Stat. (1977). This statute provides in subsection (e) that “when a child is transferred for criminal prosecution, the court shall set forth in writing its reasons for the transfer.” In reviewing the trial court’s order of December 16, 1977, wherein jurisdiction was waived, we note this order does not contain an actual statement of reasons. See Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978) for an analagous discussion of the reasons necessary in an order granting new trial.

The first reason stated by the trial court is the serious nature of the offense. This is one of the statutory considerations and appears to be a mere recitation of the consideration rather than any actual finding or record reference about the nature and seriousness of the particular crime. The second stated reason is the history of juvenile offenses of the child. Under the circumstances of this waiver hearing, this was a first offense. While there was a possible overdose of drugs taken by this child when he was 13 or 14 years old, there is no previous offense of which this child has ever been found guilty. The next reason stated is the “failure of the juvenile system to rehabilitate him from criminal acts.” The failure was due to the child’s never having been within the system of juvenile rehabilitation. The juvenile had never had any true exposure to the juvenile system. The last stated reason is the “report and recommendation of the youth counselor.” The trial court could not have relied upon this recommendation since it was strongly and unequivocally against waiver of jurisdiction. The youth counselor who testified was most definitely of the opinion that the child should not be waived but should instead be given the benefit of the juvenile system.

In view of the above, the reasons stated in the order waiving jurisdiction are insufficient. There may well have been valid reasons to waive jurisdiction, but the statute requires that such reasons be stated in the order. This requirement is most assuredly to facilitate intelligent appellate review. Wackenhut Corp. v. Canty, supra. We note that this order is actually a fill-in-the-blank type which merely recites the various statutory considerations. The trial judge simply struck through several of these statutory considerations and left the others as reasons. Under these circumstances we reverse the waiver order and remand the cause to the trial court for the purpose of stating in an order the reasons supporting the waiver.

This individual has already been tried in the Criminal Division and as previously indicated we find no error in the trial and conviction other than the waiver hearing under Chapter 39. We note that a sentence of 53 years and 39 days for a first offender juvenile is certainly out of keeping with the entire concept of juvenile rehabilitation. We are not empowered to act upon the mere harshness of a legal sentence but we, nonetheless, comment upon it. If a 16 year old first offender cannot be rehabilitated under the juvenile system, then a 53 year plus sentence (the life expectancy of that individual) hardly seems the answer. Of course, we realize this defendant will not spend 53 years in prison. He will undoubtedly be released by other public agencies or individuals at an earlier date. The public conception that the trial judge determines how long a defendant remains in prison is a myth which should be realistically re-evaluated. The rhetoric should be made to agree with reality. We feel the sentence here was unreasonably long and probably partially motivated by the total absence of any relationship between the stated sentence and the reality of actual confinement.

The waiver order is vacated and the case remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

MOORE, J., and FRANZA, ARTHUR J., Associate Judge, concur.


text:
    Marjorie MENEFEE, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION, and Broward County School Board, Respondent.
    No. 77-752.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1979.
    Rehearing Denied April 17, 1979.
    Marjorie M. Menefee, pro se.
    Kenneth H. Hart, Jr., Gen. Counsel, Miami, and Alex D. Littlefield, Jr., Miami, for respondents.
   PER CURIAM.

CERTIORARI DENIED.

DAUKSCH, MOORE and BERANEK, JJ., concur.


text:
    Amada GARCIA and Victor Garcia, Appellants, v. DADE COUNTY PUBLIC HEALTH TRUST, d/b/a Jackson Memorial Hospital, Appellee.
    No. 77-2672.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Rehearing Denied May 2, 1979.

      Grover, Ciment, Weinstein & Stauber and Allan S. Friedman, Miami Beach, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the plaintiffs below from an order granting the defendant’s motion to dismiss, and dismissing plaintiffs’ amended complaint. We find error and reverse.

The action was for malpractice based on alleged negligence of doctors employed in a hospital in Miami generally known and referred to as Jackson Memorial Hospital. The hospital is operated and administered by “Dade County Public Health Trust d/b/a Jackson Memorial Hospital”, an administrative agency of Metropolitan Dade County.

The action, filed on April 8, 1977, was by Amada Garcia and Victor Garcia, her husband, against Dade County Public Health Trust d/b/a Jackson Memorial Hospital. Service of process was made on the chairman of said agency. In brief, the complaint alleged that negligence of diagnosis and treatment of the plaintiff Amada Garcia by employees of the hospital on February 14, 1975, proximately resulted in the loss of plaintiffs’ child by being stillborn. A motion by defendant to dismiss on numerous grounds was granted, followed by an agreed order to amend, pursuant to which the plaintiffs filed an amended complaint. The latter added allegations that on February 11, 1977 [which was three days before the applicable two-year statute of limitations would have run], plaintiffs filed a medical mediation claim against “Jackson Memorial Hospital, Inc.”, and on February 18, 1977, process was served on a named person who was the same person upon whom, as the authorized agent of the defendant, service of process was made later in the subsequently filed law action; and further alleged that the medical mediation proceeding was terminated on or about March 22,1977, when there was no response thereto by answer as required, within the time provided therefor.

The defendant moved to dismiss the amended complaint, stating as grounds (1) that the plaintiffs had “failed to comply with the prerequisites of Medical Mediation Claim, pursuant to § 768.133, Fla.Stat. FSA”, and (2) that it affirmatively appeared the action was barred by the statute of limitations. Acting thereon the court entered the order appealed from, by which the motion to dismiss was granted and the amended complaint was dismissed.

In support of the dismissal of the action, the defendant-appellee argues that because the medical mediation claim named as defendant Jackson Memorial Hospital, Inc. (which it says does not exist as an entity) instead of naming as defendant Dade County Public Health Trust d/b/a Jackson Memorial Hospital, and prior to loss of jurisdiction of the medical mediation proceeding did not amend the claim to state as defendant the correct name of the party against whom the claim was held, the medical mediation proceeding which was filed did not toll the statute of limitations, and thereby the subsequent action (which a mediation claim would have made timely) was barred by the statute of limitations.

That argument has logic, but for it to be valid it would be necessary to conclude that the medical mediation claim that was filed was wholly ineffective. We are impelled to hold the contrary. In reaching this conclusion we note that “Jackson Memorial Hospital” is a part of the name of the administrative agency responsible for the acts of the staff or employees of said hospital; that service of process on the medical mediation claim was made on the person who was the proper person to be served on such a claim against the administrative agency; that by reason of such service the agency had knowledge of the claim and that it was based on alleged negligence of staff or employees of the hospital; that normally such an error in the naming of the defendant would be called to the claimants’ attention by the party served, informally, or by answer; that had such been done, a simple amendment would have sufficed; that failure to so respond within the time for filing answer (contrary to normal procedure) constituted purposeful inaction which lulled the claimants into reliance on their filed claim as being effective, and as tolling the statute of limitations, and we recognize such course of inactivity as a strategy intended to gain dismissal of the medical mediation proceeding and thereby furnish opportunity to contend the statute of limitations had run.

, The authorities inform us that a party’s claim or cause of action should not be permitted to be invalidated in such manner. See Cabot v. Clearwater Construction Company, 89 So.2d 662 (Fla.1956); Argenbright v. J. M. Fields Co., 196 So.2d 190 (Fla. 3d DCA 1967); Taormina Corporation v. Escobedo, 254 F.2d 171 (5th Cir. 1958); Hartford Accident & Indemnity Co. v. Interstate Equipment Corp., 74 F.Supp. 791 (D.N.J.1947).

The pronouncements in those decisions, as outlined in Argenbright, furnish support for our holding that in the circumstances of this case the medical mediation claim filed prior to the law action was effective, and operated to toll the statute of limitations. Here, as mentioned above, the administrative agency, as a result of service of process on its official who was authorized to accept service for the agency, knew from the beginning that by their medical mediation claim the plaintiffs were setting up and trying to enforce a claim for which the administrative agency was responsible, because of specified conduct of employees of the facility which it governed. Although its name was not correctly or completely stated, as defendant in the medical mediation claim, the service was made on the proper party. See Cabot v. Clearwater Construction Company, supra (89 So.2d at 663).

Under the policy of the law to get away from “tricks and technicalities of the trade”, the procedures relating to the prosecution of an asserted claim should represent an effort to arrive at the truth. In Argenbright, quoting from Cabot v. Clearwater Construction Company, supra, the court said:

“ * * * No longer are we concerned with the ‘tricks and technicalities of the trade’. The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize.”

A distinction between this case and the above-cited cases is that in the latter there was involved the question of the effectiveness of the running of the statute of limitations during pendency of such actions after they had incorrectly named the party defendant and prior to the naming of the correct defendant; whereas here the failure to name the defendant correctly was in the medical mediation proceeding prior to filing action. That distinction is not of consequence, because the filing of the mediation claim was as effective in meeting the statute of limitations as would be the filing of a law action on a claim. Here the plaintiffs did file a medical mediation claim, the merits of which, as known all along by the administrative agency, were predicated on alleged conduct of the staff or employees of the hospital which was subject to the agency’s administration. The agency studiously avoided contesting the validity of the medical mediation claim during the period which the rules allowed for response thereto. It was only after its deliberate inaction brought about the termination of jurisdiction of the proceeding and it was served in the subsequent action that the administrative agency claimed the mediation proceeding had been improperly or ineffectively brought. See Argenbright v. J. M. Fields, Co., supra.

Accordingly, the order dismissing the amended complaint is reversed, and the cause is remanded for further proceedings.

      . The filing of a Medical Mediation Claim is prerequisite to filing a medical malpractice action, by one having such a claim “on account of alleged Medical Malpractice of any medical or osteopathic physician, podiatrist, hospital, or health maintenance agency” (emphasis supplied), as provided in § 768.44(l)(a), Fla.Stat. (1975).

      . The statute provides that the defendant named in such medical mediation claim shall “file an answer to such claim within 20 days of The date of service”, and provides that if no answer is filed within such time limit, the jurisdiction of the mediation panel will terminate, leaving the claimant free to file suit [§ 768.-44(1 )(c)]. Subsection 4 of § 768.44 provides that the filing of the medical mediation claim shall toll any applicable statute of limitations until a written decision therein “or the jurisdiction of the panel is otherwise terminated”, with the claimant being allowed 60 days thereafter in which to file a complaint in the circuit court. [Here the action in the circuit court was filed 45 days after the date of termination of jurisdiction of the medical mediation proceeding.]


author: HENDRY, Judge.

text:
    Charles P. LITTLE, Appellant, v. BANKERS NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 78-230.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Rehearing Denied May 2, 1979.

      Sidney B. Shapiro, North Miami Beach, for appellant.
    Adams & Ward and Ramon E. Rasco, Miami, for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   HENDRY, Judge.

By this appeal we are asked to review the propriety of the final judgment and subsequent order denying a motion for new trial in an action seeking recovery on a disability insurance policy. Appellant’s primary contentions are that the evidence was insufficient to sustain the verdict, the trial court committed prejudicial error during jury trial by refusing to admit certain evidence and by making certain admonishing comments to counsel for appellant in the presence and hearing of the jury.

The evidence sought to be admitted by appellant, plaintiff in the trial court, was (a) a copy of an official letter addressed to appellant from the assistant regional flight surgeon for the Federal Aviation Administration, the subject matter of which was the medical disqualification of appellant as an air traffic control specialist, and (b) the testimony of the assistant regional flight surgeon concerning the precise rules and regulations of the FAA applicable to the matter.

As to the letter written by the assistant regional flight surgeon, both the doctor and the appellant testified at length as to its contents and conclusions. Thus, the error, if any was harmless. See, § 59.041, F.S. (1967). Only material errors which could have caused injustice are reversible errors. Reeder v. Edward M. Chadbourne, Inc., 338 So.2d 271 (Fla. 1st DCA 1976). The Federal Aviation Administration rules and regulations are important for setting forth the medical standards for qualification as an air traffic controller, however, the doctor was present at trial to give testimony in his official capacity regarding his evaluation of the competency of the appellant to withstand the inherent pressures involved when working as an air traffic controller. We find there was no reversible error on the part of the trial court in its ruling on these matters.

After careful review of the briefs and record as well as having heard argument of counsel, it is our considered opinion that in light of all the evidence presented by both parties at trial, which included live testimony and the admission of medical reports of several physicians, psychiatrists and psychologists, there is substantial competent evidence in the record to support the jury verdict. The court properly entered final judgment for appellee and correctly denied the motion for a new trial. The only thing that would have been accomplished by the granting of a new trial by the lower tribunal would have been to have another jury try the case, which is a manifestly insufficient reason for granting a new trial. Rosenfelder v. Huttoe, 66 So.2d 226 (Fla.1953).

Appellant’s final point cannot be considered on appeal, the record is devoid of any proper and timely objection by counsel as to the claimed prejudicial comments made by the trial judge. Additionally, a review of the particular complained-of comments reveals that they do not constitute fundamental error as improper or unjudicial conduct; since there has been no constitutional or fundamental error the appellant cannot raise this as error for the first time in prosecution of the appeal. Love v. Hannah, 72 So.2d 39 (Fla.1954) and American Home Assurance v. Keller Industries, Inc., 347 So.2d 767 (Fla. 3d DCA 1977).

In conclusion, we find that the evidence is sufficient to support and justify the verdict, and no reversible error has been made to appear; thus, the trial court orders of final judgment and denial of the post-trial motion are hereby affirmed.

Affirmed.


text:
    Edmond J. DUHART, Appellant, v. The STATE of Florida, Appellee.
    No. 78-471.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Rehearing Denied May 2, 1979.
    Edmond J. Duhart, in pro. per.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendant-appellant, Edmond J. Duhart, was tried by a jury and convicted of robbery, unlawful possession of a weapon while engaged in a criminal offense and possession of a stolen motor vehicle. Duhart appealed his conviction which was affirmed by this court. See Duhart v. State, 348 So.2d 387 (Fla. 3d DCA 1977). Thereafter, pursuant to Fla.R.Crim.P. 3.850, he filed a motion to vacate judgment and sentence and as ground therefor he primarily alleges that he was denied effective assistance of counsel at his preliminary hearing and trial. After a full evidentiary hearing, the trial judge found that Duhart had effective assistance of counsel and denied the motion to vacate. Duhart appeals the denial order.

With respect to Duhart’s contention that he was prejudiced by being denied counsel at his preliminary hearing, the principle of law is well established that the failure to assign counsel at a preliminary hearing must be raised on direct appeal taken by a defendant. See Clements v. State, 320 So.2d 44 (Fla. 3d DCA 1975). Duhart having failed in that appeal to raise the issue of denial of counsel at his preliminary hearing, he is now precluded from raising this same issue as grounds for relief from judgment under Fla.R.Crim.P. 3.850. See Clements v. State, supra.

Turning to Duhart’s argument that he was denied effective assistance of counsel at this trial, we agree with the determination of the trial judge that he was effectively represented by counsel. The record reflects that Duhart knowingly consented in writing prior to the trial to be represented by a certified legal intern under the supervision of an assistant public defender pursuant to Article 18 of the Integration Rule of The Florida Bar.

Thus, we conclude that Duhart’s motion for relief from judgment and sentence was properly denied.

Affirmed.


text:
    M. Lee BROWN et al., Appellants, v. BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, etc., et al., Appellees.
    No. 78-749.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Rehearing Denied May 2, 1979.
    Paul, Landy & Beiley and Stanley A. Beiley, Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Edward C. Vining, Jr., Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Ryskamp, Miami, for appellants.
    Jack W. Pierce and S. Sherman Weiss, Tallahassee, for appellees.
    Before.HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

This is an appeal from a final judgment in a suit to quiet title instituted by the Board of Trustees of the Internal Improvement Trust Fund, an agency of the State of Florida Department of Natural Resources, in the Circuit Court for the Eleventh Judicial Circuit of Florida. We have carefully examined the thorough and detailed final judgment entered by the trial court in this cause together with the record on appeal and the briefs of the parties. In our view, no reversible error has been shown. Accordingly, the final judgment appealed from is affirmed. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Jefferson National Bank at Sunny Isles v. Metropolitan Dade County, 271 So.2d 207, 214 (Fla. 3d DCA 1972); Gars v. Woodard, 214 So.2d 385, 386 (Fla. 3d DCA 1968).

Affirmed.


author: KEHOE, Judge.

text:
    Kimberly Anne POWERS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-918.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Rehearing Denied May 2, 1979.

      Sheldon “Skip” Taylor, Miami, for appellant.
    Jim Smith, Atty. Gen., Janet Reno, State’s Atty., and Richard L. Katz, Asst. State’s Atty., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction and sentence entered by the trial court after she was found guilty by a jury of three counts each of burglary, armed robbery, and kidnapping, and one count each of aggravated assault and aggravated battery. We affirm.

Appellant, in her first point on appeal, contends as follows:

“I. The trial court erred in striking the defense of insanity as a matter of law where the defense of insanity by involuntary intoxication is a legitimate defense and the evidence proffered by appellant raised a reasonable doubt as to her sanity during the commission of the offenses, thus raising a question of fact for the jury.
“A. Temporary insanity caused by involuntary intoxication is a complete defense to a criminal charge.
“B. The trial court erred in failing to submit the issue of insanity to the jury where the evidence proferred by the appellant raised a reasonable doubt as to the appellant’s sanity at the time of the offense.”

The record shows that appellant’s primary defense in the trial court, as also reflected by the above point on appeal, was that she was temporarily insane, at the time of the commission of the offenses for which she was convicted, by reason of involuntary intoxication. However, in our opinion based on the record in this case, it is not necessary for us to discuss the contentions raised in this point on appeal.

The record shows that the trial court instructed the jury, inter alia, as follows:

“Proof that the crime was committed in Dade County need only be with reasonable certainty. It need not be proven beyond a reasonable doubt.
“Voluntary drunkenness or intoxication or impairment of mental faculties by the use of narcotics or other drugs does not excuse nor justify the commission of the crime, but intoxication or impairment of mental faculties by the use of narcotics or other drugs may exist to such an extent that an individual is incapable of forming an intent to commit a crime, thereby rendering such person incapable of committing a crime of which a specific intent is an essential element.
“When the evidence tends to establish impairment of the mental faculties by the use of narcotics or other drugs to this degree, the burden is upon the State to establish beyond a reasonable doubt that the defendant did, in fact, have sufficient use of her normal faculties to be able to form and entertain the intent which is an essential element of the crime in question.
“Drunkenness or impairment of mental faculties by the use of narcotics or other drugs which does not go to the extent of making a person incapable of forming the intent which is an essential element of a crime does not in any degree reduce the gravity of the offense.
“Impairment of mental faculties by the use of narcotics or other drugs arising after the formation of the intent, which is an essential element of the crime and voluntarily induced for purpose of nerving the offender to commit a crime already planned does not excuse nor reduce the degree of the crime.
“Partial impairment of the mental faculties by the use of narcotics or other drugs which merely arouses the passions or reduces the power of conscience neither mitigates nor lessens the degree of guilt if the offender still knew right from wrong, the probable consequences of his or her act, and was capable of committing a specific intent to commit the crime.
“The defendant in every criminal case, including this one, is presumed to be innocent until her guilt is established by the evidence to the exclusion of and beyond every reasonable doubt.”

Thus the trial court specifically instructed the jury that appellant could not be convicted of any offense requiring criminal intent, unless the prosecution (appellee) had established beyond a reasonable doubt that she had sufficient use of her normal faculties to form such intent. Subsequently, the jury entered a verdict of guilty on the eleven counts set forth above. Implicit within that rendition was the jury’s determination that appellant was mentally capable of forming the requisite criminal intent. At the time that it made its decision, the jury had before it substantial evidence in regard to appellant’s intoxication. From this evidence, the jury could, as it did, rationally infer that appellant possessed the requisite criminal intent necessary for her convictions. Because of this determination, the manner, i. e., by voluntary or involuntary intoxication, of appellant’s asserted insanity was not a necessary consideration for the jury. Thus, even assuming for the sake of argument that it was error for the trial court to fail to allow appellant to introduce evidence in regard to her insanity by reason of involuntary intoxication or to give the jury instructions requested by her in that regard, because of the jury’s findings that appellant did have- the requisite criminal intent to commit the offenses with which she was charged, it was at most harmless error. See, e. g., Ballard v. State, 31 Fla. 266, 12 So. 865 (1893); Vasquez v. State, 54 Fla. 127, 44 So. 739 (1907); Moore v. State, 83 Fla. 270, 91 So. 180 (1922); and Breen v. State, 84 Fla. 518, 94 So. 383 (1922).

We have carefully reviewed each of the other points raised by appellant on appeal and find them to be without merit. Our review of the entire record in this case leads us to the conclusion that no error was committed which injuriously affected any substantial rights of appellant. Accordingly, the judgment of conviction and sentence appealed are affirmed. See, e. g., Soto v. State, 325 So.2d 414 (Fla. 3d DCA 1976); Blackman v. State, 279 So.2d 99 (Fla. 3d DCA 1973); Matera v. State, 218 So.2d 180 (Fla. 3d DCA 1969); Sylvia v. State, 210 So.2d 286 (Fla. 3d DCA 1968); and § 924.33, Fla.Stat. (1977).

Affirmed.


text:
    Estelle RUINA, on Behalf of Irving Ruina, Deceased and Ruth Kahn, on Behalf of Milton Kahn, Deceased, Appellants, v. Robert RUSSELL, George R. Stoltz, Abraham M. Lowenthal, and Jack Weisglass, Appellees.
    No. 78-972.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Rehearing Denied April 30, 1979.

      Stanley H. Beck, Miami, for appellants.
    Steel, Hector & Davis and Joseph P. Klock, Jr., Miami, for appellees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

By this appeal, we are asked to review a final judgment entered after the trial court granted the defendants’ motion for judgment on the pleadings. This action for breach of contract was brought against the last board of directors of a dissolved corporation within three years after dissolution of the corporation and was based upon an alleged corporate liability incurred prior to the corporation’s dissolution. We reverse.

In our view, this action was properly brought under Section 608.30, Florida Statutes (1975). United States Fire Insurance Co. v. Morejon, 338 So.2d 223 (Fla.3d DCA 1976). The fact that the defendant board of directors herein had no knowledge of the cause of action sued upon when the corporation was dissolved and presently does not have possession of any of the corporate assets does not change this result. The above statute contains no such requirements as a condition precedent to maintaining this action.

We express no opinion on the propriety of the order denying the appellants’ motion in limine. No appeal has been taken from this order and we doubt whether such an appeal could lie in any event. Fla.R.App.P. 9.130.

The final judgment under review is reversed and the cause remanded to the trial court for further proceedings.


text:
    James B. HAYNES, Appellant, v. STATE of Florida, Appellee.
    No. 78-1251.
    District Court of Appeal of Florida, Second District.
    March 28, 1979.
    Rehearing Denied April 19, 1979.
    Jack O. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We remand so that the lower court may correct the written order revoking appellant’s probation to conform to the court’s oral pronouncement, by striking the finding of violation of condition 4. We otherwise affirm the order of revocation, judgment, and sentence.

GRIMES, C. J., and SCHEB and DAN-AHY, JJ., concur.


author: SCHWARTZ, Judge.

text:
    Charles “Bebe” REBOZO, Appellant, v. ROYAL INDEMNITY COMPANY and Baldwin Insurance Agency, Inc., Appellees.
    No. 78-617.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Rehearing Denied April 30, 1979.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Henry Burnett, Miami, Gerald M. Walsh & Associates, Fort Lauder-dale, and Gilbert E. Tyson, for appellees.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.), and EZELL, BOYCE F., Jr. (Ret.), Associate Judges.
   SCHWARTZ, Judge.

Rebozo appeals from a final judgment which dismissed his cross-claims against the appellees-cross-defendants, on the ground that he lacked standing to maintain the actions in his individual capacity. We reverse.

The long arid tortuous history of this case began when a lady named Victoria Morejon recovered a personal injury judgment, which we reduced to $150,000 in Washwell, Inc. v. Morejon, 294 So.2d 30 (Fla. 3d DCA 1974), cert. denied, 310 So.2d 734 (Fla.1975), against Washwell, Inc., a corporation of which Rebozo was an officer and director and the sole shareholder. Washwell was covered by a liability policy issued by one of the present appellees, Royal Indemnity Co., which paid Mrs. Morejon its policy limits of $100,000. In order to recover the remaining $50,000, she then sued, among others, Rebo-zo, Royal, and the other present appellee, the Baldwin Insurance Agency, which was Washwell’s and Rebozo’s insurance broker.

As against Rebozo, who was sued as an individual, Mrs. Morejon contended that he was personally liable for the $50,000 as a trustee-last-director and sole distributee of the assets of Washwell, Inc., which had been dissolved after she had obtained the judgment against it. Her claim against Royal was based upon an alleged bad faith refusal to settle her claim within the $100,-000 policy limits. She alleged that Baldwin was liable by virtue of its negligence in not arranging, as it had allegedly undertaken to do, for adequate insurance for Washwell which would have protected it from a judgment in excess of the Royal policy limits. Rebozo, in the individual capacity in which he had been sued, then brought cross-claims against Royal and Baldwin. The cross-claims asserted that, if Rebozo were required to pay the $50,000, both Royal and Baldwin were liable to reimburse him for that amount; the legal bases for the cross-claims were identical to those in Mrs. Morejon’s action against those defendants, that is, bad faith as against Royal, and professional negligence as against Baldwin.

In the event, Rebozo was required to, and did personally pay the $50,000 to Mrs. More-jon. The trial court entered a summary judgment in that amount against him, as an individual, and this court affirmed that judgment in United States Fire Ins. Co. v. Morejon, 338 So.2d 223 (Fla. 3d DCA 1976), cert. denied, 345 So.2d 426 (Fla.1977), holding at 338 So.2d 224:

“We find no error in the trial court’s entry of the judgment against Rebozo individually because after plaintiff’s accident, but prior to the judgment against Rebozo, Rebozo liquidated Washwell and as sole stockholder, received all of the assets. Pursuant to Section 608.30, Florida Statutes (1975), Rebozo must maintain a sufficient amount of the dissolved corporation’s assets in order to pay the claims of creditors. The properties of the corporation constitute a fund for the payment of the corporation’s debts, and the surviving directors are charged with managing such fund for the interest of the creditors. See Guaranty Trust and Savings Bank v. United States Trust Company 89 Fla. 324, 103 So. 620 (1925); Kyle v. Stewart, 360 F.2d 753 (5th Cir. 1966). The judgment against Rebozo is affirmed.”

After Rebozo had duly satisfied this judgment, he attempted to proceed on the cross-claims against Royal and Baldwin, which had remained pending and dormant during the appellate proceedings involving the Mo-rejon-Rebozo judgment. At the pre-trial conference, however, the trial judge dismissed both cross-claims, granting a previously filed motion to dismiss upon which the court had reserved ruling. The basis of the motion, and the ruling, was that Rebozo lacked standing to bring the cross-claims as an individual on the grounds that the original judgment had been entered only against Washwell, Inc.; that Rebozo had merely discharged a corporate obligation by paying the $50,000; and that a stockholder may not personally maintain an action to enforce purely corporate rights or redress corporate injuries. We do not agree that the person who individually paid the judgment has no individual standing to recover from the entities allegedly primarily responsible for its being entered. Accordingly, we reverse the order of dismissal.

Under the allegations of the cross-claim (and of Mrs. Morejon’s original complaint) —which, at this stage, must be regarded as true — Washwell, Inc. would not have been liable for the $50,000 portion of the judgment which Rebozo was required to pay if Royal had exercised good faith by settling Mrs. Morejon’s claim within the $100,000 policy limits, or if Baldwin had not negligently failed to provide insurance which would have covered the excess. Thus, Re-bozo, in effect, satisfied an obligation which, under the law, was rightly owed by the cross-defendants. Since Rebozo obviously did not act as a mere “volunteer” in paying a judgment which had been entered of record against him, we hold that by doing so, he became equitably subrogated to the rights of both Mrs. Morejon and the insured, Washwell, Inc., against Royal for its bad faith refusal to settle, and to the claim of Washwell against Baldwin for its “malpractice” in failing to arrange for excess coverage. This court has recently recognized such a subrogation claim in a similar situation in American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979) (Case no. 77—2648, opinion filed March 6, 1979). Our quotation in that decision from Ulery v. Asphalt Paving, Inc., 119 So.2d 432, 436 (Fla. 1st DCA I960) is likewise appropriate here:

“Subrogation, a creation of equity, is founded on the proposition of doing justice without regard to form, and was designed to afford relief where one is required to pay a legal obligation which ought to have been met, either wholly or partially, by another. Trueman Fertilizer Co. v. Allison, Fla., 81 So.2d 734. The right of subrogation has been sustained in almost every conceivable type of transaction where the party invoking it has been required to pay a debt for which another is primarily answerable, and which in equity and good conscience the other ought to pay.”

See also American Fidelity & Casualty Co. v. United States Fidelity & Guaranty Co., 305 F.2d 633, 634-635 (5th Cir. 1962), also cited in the Opa Locka case, where the court said:

“The rights arising under the doctrine of subrogation have been set out in a number of cases; ... As stated in National Surety Corp. v. First National Bank, 1939, 278 Ky. 273, 128 S.W.2d 766, 767, 769, quoting from Vance v. Atherton, 1934, 252 Ky. 591, 67 S.W.2d 968, 970: ‘The doctrine of subrogation is pure equity, having foundation in principles of natural justice. It rests, not on contract, but on the natural principles of right and justice, when applied to the facts of the particular case, and includes every instance in which one who is not a volunteer pays the debt of another * * * It is applied only when necessary to bring about equitable adjustment of a claim founded on right and natural justice.” [emphasis supplied]

Our conclusion that Rebozo, as an equitable subrogee, may individually pursue this action is in accordance also with the policy that actions may, and should, be “prosecuted in the name of the real party in interest . . . ” Fla.R.Civ.P. 1.210(a). See First National Bank of St. Augustine v. Perkins, 81 Fla. 341, 87 So. 912 (1921); Woodbury v. Tampa Waterworks Co., 57 Fla. 243, 49 So. 556, 560-561 (1909). To hold, as did the trial judge, that the man who has paid the judgment is not the party who is “really interested” in getting his money back amounts to an exaltation of form over substance which we cannot approve.

Reversed and remanded.

CHARLES CARROLL (Ret.), Associate Judge, dissents.

      . The ability of an injured claimant directly to maintain a bad faith action against the tort-feasor’s insurance company was established in Thompson v. Commercial Union Ins. Co. of New York, 250 So.2d 259 (Fla.1971).

      . In United States Fire Ins. Co. v. Morejon, 338 So.2d 223 (Fla. 3rd DCA 1976), cert. denied, 345 So.2d 426 (Fla.1977), this court held that Rebozo’s personal excess policy with United States Fire did not cover the judgment against Washwell, Inc.

      .The appellees cite such cases as Fried v. Easton, 293 So.2d 87 (Fla. 3d DCA 1974), and Nelson v. Miller, 212 So.2d 66 (Fla. 3d DCA 1968). But see Dubbin v. Touche Ross & Co., 324 So.2d 128 (Fla. 3d DCA 1975), cert. denied, 336 So.2d 1181 (Fla.1976) (quoting exception that “[a] stockholder may bring a suit in his own right to redress an injury sustained directly by him, and which is separate and distinct from that sustained by other stockholders . . . ”)

      . See n. 1, supra.

      . Auto Mut. Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938).

      . Caplan v. LaChance, 219 So.2d 89 (Fla. 3d DCA 1969), and authorities cited.

      . Of course, this case 'was decided after the rendition of the judgment below.

      . Our disposition makes it unnecessary to consider the other arguments advanced in support of Rebozo’s contention that he has individual standing to sue, or his point that the trial court erroneously denied his alternative motion to amend the cross-claims so as to permit him to maintain the .actions in his representative capacity as trustee for Washwell, Inc., or to make the corporation itself a party plaintiff.


text:
    Gladys MacKENZIE, surviving spouse of Locke MacKenzie and John K. MacKenzie and Colin E. MacKenzie, as Co-Executors of the Estate of Locke MacKenzie, Appellants, v. AVIS RENT-A-CAR SYSTEMS, INC., a Foreign Corporation, Appellee.
    No. 78-998.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Rehearing Denied May 2, 1979.
    Sams, Anderson, Gerstein & Ward, Greene & Cooper and Marc Cooper, Miami, for appellants.
    Robert L. Dube, Richard M. Gale, Miami, for appellee.
    Before SCHWARTZ, J. and CHARLES CARROLL (Ret.) and EZELL, BOYCE F., Jr. (Ret.), Associate Judges.
   SCHWARTZ, Judge.

The appellants, who were the plaintiffs below, are the widow and the co-executors of the estate of Dr. Locke MacKenzie. They appeal from a summary final judgment entered for the defendant-appellee, Avis Rent-A-Car System, Inc. in an action arising out of the fact that the defendant did not provide Dr. MacKenzie, one of its car rental customers, with uninsured motorist protection. We reverse.

On June 13, 1973 Dr. MacKenzie rented a car from Avis pursuant to a written agreement which provided

“Lessor provides coverage for persons using the vehicle with the permission of Lessor and not otherwise in accordance with the standard provisions of an automobile liability insurance policy, a copy of which is available for inspection at the main office of Lessor on request against liability for bodily injury; including death limits $100,000 each person, $300,-000 each accident and property damage (limit $25,000) arising out of the use of the vehicle. Lessor reserves the right, where permitted by law, to provide said coverage under a certificate of self-insurance in lieu of or in combination with an insurance policy . . . ” [e.s.]

Two days later, on June 15, 1973, while driving the rental vehicle, Dr. MacKenzie was involved in a very serious accident caused by the negligence of a motorist who carried no liability insurance. Accordingly, the doctor made an uninsured motorist claim with Avis. Avis denied the claim because, as was conclusively established below, it had qualified as a self-insurer and had validly rejected uninsured motorist protection for its rental vehicles.

Dr. MacKenzie and his wife then sued Avis in the Dade County Circuit Court. The basic theory of the action was that by failing to provide UM protection Avis had breached its specific undertaking to cover its customer “in accordance with the standard provisions of an automobile liability insurance policy . . .” During the pendency of the case, Dr. MacKenzie died and the co-executors of his estate were substituted as party-plaintiffs. Immediately prior to trial, without any supporting affidavits, the defendant .moved for and was granted summary judgment in its favor.

On this appeal, the plaintiffs present but a single issue. Their brief argues that summary judgment was improperly entered because a genuine issue existed as to whether Avis’ failure to provide UM coverage was in breach of its rental agreement. There is no question that, under the circumstances, Avis had no statutory obligation to provide Dr. MacKenzie with UM protection. E. g., Guardado v. Greyhound Rent-A-Car, Inc., 340 So.2d 510 (Fla.3d DCA 1977). The sole issue then is whether the defendant agreed to provide more than what was required by law by specifically contracting to furnish coverage in accordance with “the standard provisions of an automobile liability . . . policy.” The summary judgment entered in its favor on this issue may, in turn, be affirmed only if Avis sustained its burden of establishing conclusively that these “standard provisions” do not include UM coverage. Holl v. Talcott, 191 So.2d 40 (Fla.1966). We hold that it did not and therefore reverse the judgment under review.

At the least, the contractual language in question is ambiguous as to the key issue of whether UM coverage is a standard provision of an automobile policy. Since this is true, and particularly because the defendant both itself drafted the contract, see American Agronomics Corporation v. Ross, 309 So.2d 582 (Fla.3d DCA 1975), cert. denied, 321 So.2d 558 (Fla.1975), and introduced no extrinsic evidence of the parties’ intent so as conclusively to resolve the ambiguity in its favor, the question was not properly determined by summary judgment, certainly not one entered for Avis. As this court held in Commercial Trading Co. v. Zero Food Storage, Inc., 199 So.2d 109, 112-113 (Fla.3d DCA 1967), cert. denied, 204 So.2d 332 (Fla.1967):

“It is the settled law in this State that summary judgments should be granted only in those cases where there remains no genuine issue of any material fact that would properly fall to a jury. The intent of the parties can better be determined after a consideration of all the circumstances involved.
We hold that the letter lends itself to more than one reasonable interpretation, and it creates such ambiguity as would preclude the entry of a summary judgment. See Owens v. MacKenzie, Fla. App.1958, 103 So.2d 677; King v. Sturge, Fla.App.1959, 113 So.2d 257. When the wording of an agreement is ambiguous and the parties contend for different interpretations, the issue of the proper interpretation becomes one of fact precluding the grant of summary judgment. Rock-Weld Corp. of P.R. v. Rock-Weld Equip. Corp., Fla.App.1966, 184 So.2d 186.”

Accord, National Car Rental System, Inc. v. Sonesta International Hotels Corp., 313 So.2d 108, 110-11 (Fla.3d DCA 1975) (“it appears that there are issues of material fact which preclude entry of summary judgment, namely the interpretation to be given the contract . . . and the intention of the parties . . .”); Westchester Fire Ins. Co. v. In-Sink-Erator, 252 So.2d 856, 858 (Fla.4th DCA 1971) (“ . . . where the terms of the instrument are ambiguous, casting doubt upon the intent of the parties, this intent must be determined by the trier of fact, and is not to be determined upon a motion for summary judgment”).

It is all the more clear that- this particular “ambiguity” was improperly resolved below. In perhaps prescient language, our supreme court has stated, in so many words, that

“ . . . uninsured motorist coverage is intended by the statute to be uniform and standard motor vehicle accident liability insurance . . .”

Mullis v. State Farm Mutual Auto. Ins. Co., 252 So.2d 229, 238 (Fla.1971). See also Weathers v. Mission Ins. Co., 258 So.2d 277 (Fla.3d DCA 1972); Section 627.412, Florida Statutes (1975) (“Insurance contracts shall contain . . . standard . . . provisions as are required by . code”); Section 627.727, Florida Statutes (1975) (UM coverage required by code).

In support of the judgment below, Avis cites Guardado v. Greyhound Rent-A-Car, Inc., supra, and Kohly v. Royal Indemnity Co., supra, which hold only that its rejection of UM coverage for itself and its lessees was validly effected and which are therefore entirely irrelevant to the question before us. But its primary reliance is upon Morpurgo v. Greyhound Rent-A-Car, Inc., 339 So.2d 718 (Fla.1st DCA 1976), in which the court rejected a claim, like the one asserted here, that a car rental company was contractually obliged to provide UM insurance. In Morpurgo, however, the plaintiff relied only upon an alleged implied obligation to that effect; there was no specific provision, as in this case, which, the trier of fact could find, required the furnishing of UM protection. As the concurring opinion, at 339 So.2d 720 points out:

“The question here is whether Greyhound undertook in the rental contract between the parties to provide uninsured motorist insurance for the benefit of appellants. As the court here has stated, there was no specific agreement to provide such insurance, and the contract does not bear the implication on which appellants rely.”

Morpurgo is therefore not persuasive.

We think, however, that Riccio v. Allstate Ins. Co., 357 So.2d 420 (Fla.3d DCA 1978), and American and Foreign Ins. Co. v. Avis Rent-A-Car System, Inc., 367 So.2d 1060 (Fla.1st DCA 1979) clearly support our present conclusion. In Riccio, we held that a jury question was presented as to whether an insurance company’s undertaking to give an insured “full coverage” included an obligation to provide $100,000/$300,000 UM limits notwithstanding that only $10,-000/$20,000 coverage was statutorily required. At 357 So.2d 423, we held:

“ . . . even assuming that, pursuant to Garcia, supra, coverage in the amount of $10,000/$20,000 uninsured motorist was ‘legal,’ a factual question was nevertheless raised by virtue of appellant requesting ‘full coverage’ from appellee and believing that ‘full coverage,’ i. e. $100,-000/$300,000 uninsured motorist, was afforded to him and his daughter. Such a factual question would not properly be disposed of by a directed verdict.”

In the American Insurance case, the issue was the effect of the identical provision of Avis’ form agreement with which we are concerned. The court’s holding there requires reversal here:

“The rental agreement promised that Avis would provide liability coverage for permissive users ‘in accordance with the standard provisions of an automobile liability policy, a copy of which is available at the main office of lessor [Avis].’ The agreement fails to identify or sufficiently describe the Liberty Mutual policy as the policy referred to by the agreement. In fact, the agreement even fails to identify the main office where ‘the’ policy was located and available for inspection. Furthermore, Avis presented no evidence to establish that a ‘cross-employee’ exclusion is among ‘the standard provisions of an automobile liability insurance policy.’ Nor did Avis establish that the ‘co-employee’ exclusion contained in the Liberty Mutual policy is within ‘the standard provisions of an automobile liability insurance policy.’ For these reasons, Avis failed to establish its affirmative defense that the rental agreement provided no coverage for Hulsey.” [e.s.]

For these reasons, the summary judgment for Avis is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

      . Guardado v. Greyhound Rent-A-Car, Inc., 340 So.2d 510 (Fla.3d DCA 1977); Kohly v. Royal Indemnity Co., 190 So.2d 819 (Fla.3d DCA 1966), cert. denied, 200 So.2d 813 (Fla.1967).

      . Among other things, the plaintiffs also contended that Avis had been guilty of fraud by failing to reveal that it had rejected UM coverage. Although the issue of the sufficiency of this count has not been preserved for review, it seems clear that this allegation cannot stand independently of the breach of contract claim which is before us. In other words, if a “standard automobile liability policy” includes UM, the defendant would have breached its agreement by not providing it, and consideration of the “fraud” claim would be unnecessary. If it does not, Avis would plainly have no obligation to reveal that it had rejected what it had no statutory or contractual duty to provide.

      .Ibid.

      . The only such evidence in the record below was that Dr. MacKenzie had elected to receive each item of optional coverage made available to an Avis customer. If anything, this created an inference as to his intent which was un favorable to the defendant. •

      . Neither case was available to the trial judge when he entered the judgment below.


text:
    DONE INVESTMENTS, N. V., Appellant, v. Gerald FORMAN et al., Appellees.
    Nos. 78-1160, 78-1590 and 78-1591.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Rehearing Denied May 4, 1979.

      Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Marlene K. Sil-verman, Miami, for appellant.
    Faunce, Fink & Forman and Gerald For-man, Major & Haber and Ivan Major, Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings these consolidated appeals from certain orders entered by the trial court in a foreclosure action. These orders, inter alia, approved appellees’ redemption of the subject property, vacated a public sale of that property to appellant, cancelled appellant’s mortgage of record and discharged its lis pendens on the property. Appellees St. George Enterprises, Ltd., and Peter Harsany also appeal from the final summary judgment of foreclosure. All of the appeals were consolidated for all appellate purposes. For purposes of this opinion, Done Investments will be referred to as “appellant” and all of the other parties as “appellees.” We affirm.

The sole issue presented for review by appellant is whether the trial court had the authority to extend the mortgagor’s time for redemption beyond the ten day period provided for in Section 45.031(3), Florida Statutes (1977), if the property had been judicially sold and no objections to the sale were filed.

Our review of the record shows that the trial court partially adopted, as it was permitted to do, the procedures for judicial sales set forth in Section 45.031. Here the final judgment, contrary to the provisions of Section 45.031, fixed a specific time for redemption. Further, at the time the trial court entered its order extending by three and one-half days the mortgagor’s time for redemption beyond the original ten day period, no certificate of title had been issued by the clerk of the court. Under these circumstances, in our opinion, the trial court could properly within its discretion extend the mortgagor’s period for redemption. Although we are unaware of any cases directly on point on this issue, we are persuaded by the reasoning set forth in Walter v. Gallman, 286 So.2d 275 (Fla. 4th DCA 1973), and Allstate Mortgage Corporation of Florida v. Strasser, 277 So.2d 843 (Fla. 3d DCA 1973), and Florida Rule of Civil Procedure 1.550(b) as it relates to stays. See also Rosen v. Hunter, 277 So.2d 689 (Fla. 3d DCA 1969). Accordingly, the final summary appealed is affirmed.

Affirmed.


text:
    James POLITO, a minor, By and Through his mother, Margaret Polito, Individually, Appellants, v. SCHOOL BOARD OF DADE COUNTY, Florida, and National American Insurance Company, Appellees.
    No. 78-1356.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Rehearing Denied May 2, 1979.
    Feldman, Abramson, Smith & Magidson, Miami, for appellants.
    Leland E. Stansell, Jr., and Robert A. Glassman, Miami, for appellees.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. See Holmes v. School Board of Orange County, 301 So.2d 145 (Fla. 4th DCA 1974); and Michigan Mutual Liability Company v. Mattox, 173 So.2d 754, 758 (Fla. 1st DCA 1965).


text:
    Edward Charles GENTER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-468.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Rehearing Denied May 2, 1979.
    Edward Charles Genter, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Reginald W. YOUNG et al., Appellants, v. Mark L. BRAMLETT, Appellee.
    No. KK-463.
    District Court of Appeal of Florida, First District.
    April 4, 1979.
    Rehearing Denied May 8, 1979.
    Joseph S. Farley, Jr., of Mahon, Mahon & Farley, Jacksonville, for appellants.

      H. Franklin Perritt, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellee.
   PER CURIAM.

The issue before this court is whether the medical liability mediation procedures set forth in Section 768.44 (1977), Florida Statutes, are applicable to alleged malpractice claims against dentists. We hold they are not and affirm the summary final judgment entered by the trial court finding that the statute of limitations set out in Section 95.11(4)(b), Florida Statutes (1975), barred the claims of appellants.

Section 768.44(l)(a) provides:

Any person or his representative claiming damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization against whom he believes there is a reasonable basis for a claim shall submit such claim to an appropriate medical liability mediation panel before that claim may be filed in any court of this state.

Section 768.44(4) further provides that:

(4) The filing of the claim shall toll any applicable statute of limitations, and such statute of limitations shall remain tolled until the hearing panel issues its written decisions or the jurisdiction of the panel is otherwise terminated.

Although dentists are included within the definition of “health care providers,” Section 768.50(2)(b), Florida Statutes (1977), Section 768.44 does not provide that alleged malpractice claims against dentists or health care providers must be submitted to a medical liability mediation panel as a prerequisite to filing the action in court. We cannot assume that the omission of dentists in Section 768.44(l)(a) was a legislative oversight nor can we rewrite the statute. Had the Legislature intended that the medical liability mediation procedures set forth in Section 768.44 be applicable to dentists, they could have so provided. Since we find that the medical liability mediation procedures are not applicable to dentists, the provision of Section 768.44(4), tolling the statute of limitations during pendency of the claim, offers no relief to appellants. The summary final judgment finding that appellants’ claim was barred by Section 95.-ll(4)(b) is accordingly AFFIRMED.

McCORD, C. J., and MELVIN and BOOTH, JJ., concur. ,


author: MASON, ERNEST E., Associate Judge,

text:
    W. R. FAIRCHILD CONSTRUCTION COMPANY, LTD., Appellant, v. FAIRCHILD-FLORIDA CONSTRUCTION COMPANY, Appellee.
    No. MM-379.
    District Court of Appeal of Florida, First District.
    April 4, 1979.
    Rehearing Denied May 2, 1979.

      Charles C. Sherrill, of Sherrill, Moore & Hill, Pensacola, for appellant.
    Robert P. Gaines, of Beggs & Lane, Louis K. Rosenbloum, of Levin, Warfield, Middle-brooks, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   MASON, ERNEST E., Associate Judge,

This is an appeal from a partial summary judgment entered in favor of appellee ordering that it is entitled to be indemnified by appellant as to claims asserted by the plaintiff, Garden Street Management Corporation, in a suit against both parties.

The suit arose as a result of the actions of appellee, the general contractor, and appellant, a subcontractor, in conducting pile driving operations in the immediate vicinity of Garden Street’s motel building. Garden Street filed a two-count complaint against both corporations alleging in count one that the corporations conducted the pile driving operations in such a negligent manner as to cause excessive vibration in the land adjoining the motel building thereby damaging the building and alleging in count two that the corporations were strictly liable to Garden Street. Appellee cross-claimed against appellant alleging an indemnity agreement in the subcontract. After appellee moved for a summary judgment on its cross-claim, the trial court entered the partial summary judgment here appealed ordering that ap-pellee is entitled to be indemnified by appellant as to claims asserted by Garden Street against it, including damages awarded as a result of the imposition of strict liability. However, the trial court specifically excepted any damages that might be imposed on appellee arising from its own active negligence.

Although a copy of the subcontract is not in the record on appeal, both parties concede that the pertinent portions of the subcontract dealing with indemnity provide as follows:

“SECTION 1.
“(c) The Subcontractor shall hold and save the Contractor harmless from any liability for injury or damage to persons or property occurring on in connection therewith.
“(d) The Subcontractor agrees to furnish all labor, insurance and tax on same, equipment and material to construct all items of work as set forth in Section I in accordance with the plans and specifications. The subcontractor shall promptly pay all of his obligations in connection with or pertaining to the subcontract work and all premiums incurred for surety bonds and insurance carried in connection with the subcontract work. Subcontractor shall promptly pay all taxes, licenses and assessments, including damages, penalties and interest thereon pertaining to or arising out of the subcontract work. Subcontractor shall carry out to the letter and to the satisfaction of the Principal, all terms of the Original Contract as it pertains to the subcontract work and shall pay all of the expense and cost of attorneys’ fees that may be incurred in the enforcement of the conditions and obligations of this subcontract agreement and of any bond furnished in connection herewith, including expenses, interest, cost and attorneys’ fees to all persons furnishing labor, material, equipment and supplies and other items therefor. Subcontractor agrees to indemnify and save Contractor harmless from all claims, demands, costs, expenses, interest and attorneys' fees whatsoever arising out of or pertaining to the subcon tract and the performance or failure to perform same. Any surety bond furnished under this subcontract shall include the same obligations as herein assumed by subcontractor, whether expressly therein referred to or not, and any provision of such bond to the contrary shall be of no force and effect.” (emphasis supplied)

We must agree with the trial court that the indemnity language in the subcontract is broad enough to include damages awarded as a result of the imposition of strict liability. Further, the trial court recognized the rule in University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973) that in order for an indemnity agreement to indemnify against the indemnitee’s active negligence, it must contain a specific provision protecting the indemnitee from liability caused by his active negligence. The partial summary judgment specifically provides that appellant will not be required to indemnify appellee from any damages “arising from its own active negligence”.

It is evident the trial court in rendering this partial summary judgment based upon the cross-claim of appellee has not determined that Garden Street is or is not entitled to recover on the basis of strict-liability and nothing in this opinion is to be construed as determinative of that issue.

Accordingly, the partial summary judgment is affirmed.

MILLS, Acting C. J., and ERVIN, J., concur.


text:
    In re GUARDIANSHIP OF Hazel M. HORNING, Incompetent. Clifford J. HORNING, Appellant, v. Jerry A. DeVANE, Appellee.
    No. 78-1570.
    District Court of Appeal of Florida, Second District.
    April 4, 1979.
    Lester Bales, Jr., Zephyrhills, and Ronald D. McCall, of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellant.
    Jerry A. DeVane, of DeVane & Allen, and Michael D. Martin, of Martin & Martin, Lakeland, for appellee.
   PER CURIAM.

Reversed. See Lewis v. Godwin, 323 So.2d 14 (Fla. 1st DCA 1975); § 744.334, Fla.Stat. (1977).

GRIMES, C. J., and BOARDMAN and RYDER, JJ., concur.


text:
    BOOKER CREEK PRESERVATION, INC., Petitioner, v. DEPARTMENT OF ENVIRONMENTAL REGULATION, an agency of the State of Florida, Respondent.
    No. 79-211.
    District Court of Appeal of Florida, Second District.
    April 4, 1979.

      Paul Castagliola, St. Petersburg, for petitioner.
    Alfred W. Clark, Tallahassee, for respondent.
   ON MOTION TO DISMISS

PER CURIAM.

This petition was brought to review a declaratory statement of the Florida Department of Environmental Regulation. Respondent moves to dismiss the petition for review on the ground that petitioner has failed to exhaust its administrative remedies by not appealing the order of the Department of Environmental Regulation to the Environmental Regulation Commission, citing Peterson v. State Department of Environmental Regulation, 350 So.2d 544 (Fla. 1st DCA 1977).

Petitioner attempts to distinguish Peterson as involving the denial of a request for a permit and contends that, in contrast, a declaratory statement is not properly ap-pealable to the Environmental Regulation Commission. Petitioner argues that Florida Statute, Section 403.804, provides for appeals from the department to the commission only in an adjudicatory action such as the denial of a permit.

Respondent, on the other hand, contends that the statute does not distinguish between various types of final agency action for purposes of review. We agree. The above statute provides that “[t]he commission shall also act as an adjudicatory body for final actions taken by the department . .” It is apparent from the above that the “final action” being appealed does not have to be an adjudicatory order, only that the commission shall act as an adjudicatory body. Additionally, Chapter 17 of the Florida Administrative Code, Rules 17— 1.69 and 17 — 1.70, provide for appeals of various types of final agency action from the department to the commission and include declaratory statements. See Rule 17— 1.70(l)(c), Fla.Admin.Code.

Therefore, the rationale of Peterson, supra, applies to appeals from declaratory statements and petitioner having failed to exhaust its administrative remedies, this petition for review must be and is hereby dismissed.

GRIMES, C. J., and BOARDMAN and SCHEB, JJ., concur.


author: PER CURIAM. LETTS, Judge,

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant, v. James G. HOLMES and Emil Frantsl, Appellees.
    No. 78-1701.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1979.

      Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellant.
    Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellee-James G. Holmes.
   PER CURIAM.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting:

I dissent.

The attorney’s neglect was not excusable neglect and the motion for relief under Fla.R.Civ.P. 1.540 should not have been granted.

In the case at bar, the only conceivable excuse for failure to file a motion for substitution, is the appellee’s allegation that he did not get the copy of the death certificate supposedly attached to the suggestion of death filed by the appellant. Thus the ap-pellee argues he was not on sufficient notice to proceed pursuant to Fla.R.Civ.P. 1.260. I cannot agree.

First of all, his alleged failure to receive the copy of the death certificate is not supported by the record. Moreover, even if it were, the suggestion itself states that a copy is attached. This being so, the appel-lee was on notice of it and such a copy is included with the original suggestion filed with the Court. Said death certificate contained adequate information to enable the appellee to proceed within the required 90 days.

In sum, what we have here is a routine case of attorney neglect. In my view, the majority ruling is in conflict with other recent decisions of this court. See for example, Kar Kare Owners Group of Florida v. Chason, 356 So.2d 851 (Fla. 4th DCA 1978). As we said in Westinghouse Credit Corporation v. Steven Lake Masonry, Inc., 356 So.2d 1329, 1330 (Fla. 4th DCA 1978):

“The message is clear. .Negligence by a litigant’s representative may be grounds for an independent suit, but it will not support the setting aside of a default judgment save under exceptional circumstance.”

Although technically we do not have a default judgment in the case at bar, a summary judgment resulted which was later set aside, thereby giving rise to this appeal. The parallel is obvious and I would reverse the trial court.


text:
    FLORIDA SHADE TOBACCO GROWERS, INC., and Barry M. Ottinger, Appellants, v. JNO. H. SWISHER & SON, INC., a Delaware Corporation, Appellees.
    No. LL-263.
    District Court of Appeal of Florida, First District.
    April 5, 1979.

      Robert E. Gibson of Williams, Gibson & Harley, Tallahassee (Hal P. Dekle, Tallahassee, of counsel), for appellants.
    Charles R. Gardner of Gardner, Shelfer & Mendelson, Tallahassee, for appellees.
   PER CURIAM.

This is an appeal from a summary judgment entered in favor of appellees. We find that the movant-appellees did not conclusively establish the absence of a genuine issue of material fact concerning appellants’ liability on a promissory note which was delivered pursuant to an alleged agreement between the parties, which agreement was reflected in a letter. The letter is subject to various interpretations and accordingly, the actual terms of the agreement, if any, are material factual issues which must be resolved by the fact-finder. Accordingly, the principles of law governing the granting of summary judgments require reversal here. See generally, Connell v. Sledge, 306 So.2d 194, 196 (Fla. 1st DCA 1975).

REVERSED.

MILLS, Acting C. J., ERVIN, J. and MASON, ERNEST E., Associate Judge, concur.


text:
    STATE ex rel. Luebell WILSON, etc., Petitioner, v. V. Y. SMITH and Honorable Richard O. Watson, Respondents.
    No. LL-236.
    District Court of Appeal of Florida, First District.
    April 6, 1979.
    Rehearing Denied May 2, 1979.
    Walter C. Ward and Paul M. Rashkind, of Sams, Anderson, Gerstein & Ward, Miami, for petitioner.
    Ronald M. Owen, of Parker, Johnson, Owen and McQuire, Orlando, James W. Smith, of Smith, Schoder & Wallace, John P. McCoy and David A. Monaco, of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for respondents.
   PER CURIAM.

This cause is before us on an order to show cause in a medical mediation proceeding. The question presented is whether an extension of time for holding the final hearing, moved for and granted within the 120 days of filing the claim, was invalid because not reduced to writing by the court until after the 120-day period had expired. The trial court’s order on motion to terminate is in pertinent part as follows:

“ORDERED AND ADJUDGED that the Notice/Motion of the Claimant to Terminate Jurisdiction is denied and the time period within which the Mediation Panel herein may hear the claim herein on the merits is in writing extended to six months period nunc pro tunc, which latter Order evidences in writing the Court’s oral Order and intention to extend the time given at the hearing on July 7, 1978.”

After argument and on consideration of the briefs and record before us, we hold that the extension was properly granted and that jurisdiction of the medical mediation panel has not terminated. The motion for extension was made within the 120-day period. Neither Florida Statute section 768.44 nor Rule 20.160(e), Medical Mediation Rules, require that the court enter a written order within that time period. No prejudice to any party is claimed by virtue of the court’s entry of the order of extension after the expiration of the 120-day period. Counsel for all parties were present at the hearing of July 7, 1978, prior to the expiration of the 120-day period, and participated in the setting of the time schedule for the proceedings. Limond v. Llanio, 349 So.2d 214 (Fla. 3d DCA 1977); Thames v. Melvin, 365 So.2d 813 (Fla. 1st DCA 1979).

Accordingly, the petition is DENIED.

McCORD, C. J., and MELVIN and BOOTH, JJ., concur.


author: OTT, Acting Chief Judge.

text:
    Esther R. CLOVIS, Appellant, v. FLORIDA POWER CORPORATION, Appellee.
    No. 78-1404.
    District Court of Appeal of Florida, Second District.
    April 6, 1979.
    William P. O’Malley, Clearwater, for appellant.
    D. J. Bradshaw, of Bradshaw & Mountjoy, Inverness, for appellee.
   OTT, Acting Chief Judge.

Appellant has failed to establish reversible error in the lower court’s finding that the appellee was proceeding in good faith, in denying appellant’s motion to dismiss and the entry of its order of quick taking. We therefore affirm.

Whether or not there is error in the order of quick taking in the description and quantity of appellant’s land taken, together with the compensation due can only be determined in subsequent proceedings.

Nothing in the order of taking nor this court’s affirmance forecloses the appellant from taking issue with the description, quantity of land or compensation contained in the order of quick taking. Appellee concedes that these remain open questions subject to being appropriately established by the appellant.

The order appealed from is therefore affirmed.

RYDER and DANAHY, JJ., concur.


text:
    Timothy RUSSELL, Appellant, v. PROTECTIVE NATIONAL INSURANCE COMPANY OF OMAHA, Appellee.
    No. 78-2343.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Rehearing Denied May 4, 1979.

      Charles F. Atwood, III, Miami, for appellant.
    George S. Yochmowitz; Edward S. Ka-plan, Miami, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. See Stevenson v. Arnold, 250 So.2d 270 (Fla.1971).