author: BOOTH, Judge. BOOTH, Judge.

text:
    America BALINO et al., Petitioners, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, Respondent.
    No. HH-177.
    District Court of Appeal of Florida, First District.
    July 10, 1978.
    On Rehearing Sept. 18, 1978.

      Stephen T. Maher, Miami, Robert F. Williams, Tallahassee, for petitioners.
    Charles T. Collette, George L. Waas and David St. John, Tallahassee, for respondent.
   BOOTH, Judge.

This cause is before us on petition for review of final agency action resulting from a rule-making proceeding pursuant to Florida Statute § 120.54(3). Petitioners are patients residing in Florida nursing homes who receive Medicaid. Respondent (HRS) is the agency charged with administration of the Medicaid program in Florida and has promulgated rules governing eligibility for the program.

The basic dispute between the parties involves the criteria for designation of a patient as a “skilled nursing facility (SNF) patient” and specifically Rule 10c-7.32, Florida Administrative Code, setting out those criteria. The SNF patient designation entitles the patient to Medicaid financing for the highest or most intensive of the three levels of nursing care financed by Medicaid.

In prior litigation between the parties this Court ruled that in the reclassification proceedings required by the new more stringent federal and state regulations, the HRS, not petitioners, has the burden of establishing the grounds for reclassification of SNF patients.

On the administrative level, petitioners challenged Rule 10c-7.32 on the basis that it lacked essential definitions. A full evi-dentiary hearing was held in the rule-challenge proceedings and final order issued October 19, 1976 providing in part as follows:

“Rule 10c-7.21 [now 10c-7.32] will be amended to include definitions and examples of key words and phrases such as ‘nurse’; ‘professional person’; ‘technical person’; ‘available on a 24-hour basis’; ‘which as a practical matter can only be provided in a skilled nursing care facility on an inpatient basis’.”

Pursuant to the mandate of the above-quoted order, HRS on June 17,1977, caused a notice of proposed rule-making to be published. Petitioners filed a request for a hearing pursuant to Florida Statute § 120.-54(3), which states:

“If the intended action concerns any rule other than one relating exclusively to organization, procedure or practice, the agency shall, on the request of any affected person received within 14 days after the date of publication of the notice, give affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform it of their contentions." (e. s.)

The rule-making hearing was held July 18, 1977. Petitioners appeared through counsel and sought to call and examine witnesses, to cross-examine witnesses and to invoke the rule excluding witnesses from the proceedings while other witnesses were testifying. The hearing officer disallowed these requests on the grounds that the proceeding was a public hearing, not a formal adversary hearing, and that only comments or statements could be received. Faced with that ruling, petitioners requested the hearing officer to “draw out” the proceedings pursuant to Florida Statute § 120.-54(16) which provides:

“Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that his substantial interests will be affected in the proceedings and affirmatively demonstrates to the agency that the proceeding does not provide adequate opportunity to protect those interests. If the agency determines that the rule making proceeding is not adequate to protect his interests, it shall suspend the rule making proceeding and convene a separate proceeding under the provisions of section 120.57 ...”

Rule 28-5.13 of the Model Rules of Procedure provide that the request for a draw-out can be made “at any time prior to the conclusion of a public hearing conducted under the provisions of § 120.54.”

In the instant case, the hearing officer refused the request for a draw-out on the grounds: (1) That the request was not timely and (2) That petitioners’ substantial interest would be protected by virtue of the fact that petitioners’ counsel was present at the rule-making hearing.

The hearing officer also refused to allow counsel to proffer the testimony of petitioners’ witnesses who were present at the hearing though he indicated a willingness to allow counsel to make a statement or comment. Thereafter, the hearing continued with several individuals representing the Florida Health Care Association and one member of the Department’s staff making comments. A month later, on August 9, 1977, the amended rule was filed. This petition for review followed.

The purpose of a rule-making hearing under § 120.54(3) is two-fold:

(1) To allow the agency to inform itself of matters bearing on the proposed rules or modifications thereof, and

(2) To allow the public, and specifically individuals and groups having particular interests and/or information, to participate in the rule-making process. The hearing is of a quasi-legislative, information-gathering type, which in theory at least, does not adjudicate the rights of any particular individual.

In its conduct of the hearing, the agency has the affirmative duty to inform itself to the fullest extent possible of the interest and problems of those who seek to present evidence and argument. The hearing under § 120.54(3) is not an adversary proceeding and is, in fact, presided over by a member of the agency’s own staff. Use of technical requirements by the agency’s hearing officer solely for the purpose of avoiding informational input is not in keeping with the nature of the proceedings. The agency has no right, as a litigant in an adversary proceeding might have, to protect itself from evidence or argument that may be unfavorable. The officer conducting the hearing must make every effort to assure those present have fair opportunity to present evidence and argument which is material to the rules in question and appropriate under the circumstances. What is material evidence and argument, appropriate in form, will vary with the nature of the issues involved. Considerations of time and of the number of participants in attendance at the hearing will necessarily affect the manner of presentation allowable by the hearing officer. Within those limitations, however, participants must be afforded fair opportunity “to present evidence and argument . . . appropriate to inform it of their contentions." § 120.54(3). F.S.

In Walter Holm & Company v. Hardin, 145 U.S.App.D.C. 347, 449 F.2d 1009 (1971), involving regulations of the Secretary of Agriculture affecting the import of tomatoes, the court held that tomato importers must be afforded “effective opportunity to make a presentation to the Secretary” in the informal rulemaking proceedings under the federal APA, and stated (145 U.S.App.D.C. at 353, 354, 449 F.2d at 1015, 1016):

“This is not an area that may rightly be approached in terms of absolute rigidity of requirement . American Airlines [v. CAB] indicates that the oral hearing may be legislative in type, although fairness may require an opportunity for cross-examination on the crucial issues. The requirement of hearing is not shackled by rigidities of procedure that may stultify the regulatory program. What counts is the reality of an opportunity to submit an effective presentation, to assure that the Secretary and his assistants will take a hard look at the problems in the light of those submissions.” (e. s.)

Here, petitioners’ contentions are that the definitions proposed and subsequently adopted after the § 120.54 proceedings are (1) incomplete because they fail to define all the criteria required to be defined in the order of HRS Secretary Page and (2) unworkable. The latter contention petitioners propose to support by examination and cross-examination of witnesses who must work with and apply the criteria for determining the “SNF patient.” That type of presentation is not prohibited in a § 120.54 proceeding but is allowable within the discretion of the agency. Petitioners have not demonstrated any unique circumstances that might justify a trial-type presentation in the informal rule-making proceeding. However, since the hearing officer was apparently of the view that he could not permit formal presentation, on remand the request may be renewed for his consideration.

Concerning the agency’s denial of the requested evidentiary hearing under § 120.57, we note that neither of the bases stated by the hearing officer for that denial is sufficient. The request was timely and the fact that petitioners’ counsel was present at the rule-making proceedings does not eliminate the need for a § 120.57 proceeding. In Bert Rogers Schools of Real Estate v. Florida Real Estate Commission, 339 So.2d 226 (Fla. 4th DC A 1976) petitioner attended the agency’s rule-making hearing and requested a § 120.57 proceeding. The court ruled that the agency had failed to expressly determine whether the § 120.54 proceeding was adequate to protect the interest asserted and, further, that there was nothing in the record which would support such a determination and therefore the denial of a § 120.57 proceeding was arbitrary. The court remanded the cause with directions that the petitioner be granted a hearing under § 120.57, and in so doing made the following statement concerning the basic problem of the § 120.54 hearing which is appropriate here:

“[I]t seems apparent that everyone involved was somewhat in doubt as to the correct procedure to follow under the circumstances. We do not say this critically because these waters are unchartered and only time and experience will enable those dealing with the Administrative Procedure Act to know with any degree of certitude proper application of its legislative directives . . ”

In the instant case the rule-making proceeding was held largely at the instigation of the particular petitioners here who had previously litigated to obtain the rule modifications which were the subject of the hearing. It is undisputed that the petitioners’ substantial interests are affected by the proposed rule modification. The principal question to be resolved is whether those interests are adequately protected in the § 120.54 rule-making proceeding. The answer to that question depends, in part at least, on the extent to which petitioners are able, and are permitted, to make an effective presentation at the § 120.54 hearing. Petitioners have no right to insist that the rule be modified in a specific way. Petitioners do have the right, however, to present evidence and argument relative to their contentions and HRS has the duty to listen and inform itself. Respondent’s obligation in this regard, as well as petitioners’ rights, can only be satisfied by reconvening the § 120.54 proceeding. The HRS may thereafter make changes in, or additions to, the definitions in Rule 10c-7.32, or not, as is its prerogative.

In the proceeding below the hearing officer ruled (1) that only comments or statements could be received at the § 120.54 hearing and (2) that petitioners did not have a right to a § 120.57 draw-out. These rulings were made in a vacuum, without apparent basis in the record. The hearing officer failed to make inquiry, either as to the nature of testimony sought to be elicited or the substantial interest of petitioners in the rule modification which might require a § 120.57 draw-out. Petitioners, for their part, should have submitted either a verbal or written statement of their contentions, of the evidence sought to be elicited and the particular reasons why examination and cross-examination was essential to that presentation of a § 120.57 proceeding necessary. On remand, both HRS and these petitioners will be afforded opportunity to correct these omissions.

We find that, as specified in § 120.68(8), the fairness of the proceeding or the correctness of the action may have been impaired by a material error in procedure, and therefore, the cause is REMANDED with directions that the § 120.54 hearing be reconvened for further proceedings consistent herewith.

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

ON PETITION FOR REHEARING

BOOTH, Judge.

On rehearing, HRS expressly takes no issue with this Court’s holding that, as stated by HRS, “it committed a material error of procedure in the F.S. § 120.54 proceeding on the amendments to Rule 10c-7.32.” HRS urges,. however, that since the rule modifications have now become final, and were not held invalid by this Court, no purpose will be served by reconvening the § 120.54 hearing. In the alternative, HRS urges that this Court is without authority to order it to reinstate a rule-making proceeding. We disagree with both contentions.

The import of our decision is that the agency must exercise good faith to afford interested parties an opportunity “to present evidence and argument” under F.S. § 120.54(3). We do not excuse HRS from this basic obligation, even though the rule modifications have become final, for two reasons. First, rule modification is an ongoing process and is incomplete here since further definitions and/or examples, specifically of the terms “available on a 24-hour basis,” “technical person,” “which as a practical matter can only be provided in a skilled nursing facility on an inpatient basis,” remain to be formulated by HRS, as required by the agency’s own order of October 19, 1976. Petitioners are entitled to present evidence and argument both as to the terms already defined and examples given (since HRS may thereafter determine that further modification of those definitions and examples is necessary), and as to those definitions and examples still to be formulated. Second, only by requiring the recohvening of rule-making proceedings can the right of petitioners to an opportunity to be heard and the obligation of HRS to listen and inform itself be enforced.

Petitioners have also filed for rehearing seeking to have this Court hold Rule lOc-7.32 invalid. There is no authority cited, and we have found none, which requires that this Court hold invalid rules or rule modifications adopted following procedural error in a legislative type hearing. The error here resulted in no record which would enable this Court to judge the materiality of the information sought to be presented by petitioners at the rule-making hearing.

The modified rule has been in effect since August 29, 1977, without suspension of operation during these proceedings. The modifications, consisting of definitions to, and examples of, terms used in the rule classifying patients for Medicaid purposes, were in fact obtained by petitioners after extensive litigation with HRS. The fact that the modifications are incomplete, and by petitioners’ view at least, not satisfactory, is insufficient at this point in time to require this Court set aside as invalid the agency’s attempt to state its guidelines. Challenges to the validity of the modified rule or to its application in reclassifying individual patients are not foreclosed by this decision and other litigation is pending in the federal court. Considering all these matters, we are of the view that a holding invalidating the modified rule is unnecessary to the enforcement of petitioners’ rights in this cause.

This Court will diligently enforce the rights of participants in the rule-making process. However, in recognition of the ongoing nature of that legislative proceeding, and on consideration of the totality of the circumstances, the Court may decline to either suspend or invalidate rules while remanding for correction of errors in the legislative proceeding.

Petitioners fear further procrastination by HRS if the modifed rule is allowed to remain valid. Past history of this litigation indicates that these fears are not unfounded. We therefore order that the rule-making proceedings be reconvened within 30 days of the entry of this order.

Petitions for rehearing and clarification having been considered by this Court, they are GRANTED IN PART and DENIED IN PART and the cause REMANDED consistent herewith.

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

      . Balino v. Department of HRS, 348 So.2d 349 (1st DCA 1977).

      . Levinson, Florida Administrative Procedure Act, 29 U. of Miami L.Rev. 617, 638 (1975); England and Levinson, Administrative Law, 31 U. of Miami L.Rev. 749, 765-66 (1977).

      . The basic purpose of informal rule-making proceedings is stated by Judge Skelly Wright of the Federal Circuit Bench in 26 Administrative L.Rev. 199, 211 (1974): “[T]o foster the same kind of productive dialogue between agency officialdom and the public that we like to believe exists between the electorate and Congress. In many cases, however, rule making give-and-take has a depressing desultory quality . . ..”

      “[T]he reviewing court’s goal must be to insure that the genuine expertise of both the agency and the interested public is communicated back and forth and openly utilized.” See also, Wright, The Courts and the Rulemaking Process; 54 Cornell L.Rev. 375, 379-382 (1974).

      . 5 U.S.C. § 553(c): “After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation . . ..”

      . 123 U.S.App.D.C. 310, 359 F.2d 624 (1966).

      . American Airlines Inc. v. CAB, 123 U.S.App.D.C. 310, 319, 359 F.2d 624, 633, cert. den. 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966): “Nowhere in the record is there any specific proffer by petitioners as to the subjects they believed required oral hearings, what kinds of facts they proposed to adduce and by what witnesses, etc. Nor was there any specific proffer as to [the] particular lines of cross-examination which required exploration at an oral hearing.”;
      Clagett, Informal Action-Adjudication Rule Making, Vol. 1971, Duke L.Rev. 51, 72: “[T]he opinions are not devoid of hints that a petitioner would be wise, rather than demanding a full statutory adjudication as a matter of right, to specify what procedures, not normally required in a rule-making proceeding, he considers appropriate in the particular circumstances of the case.”

      . See, 42 U. of Chicago L.R., 401, 443; Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 327, 486 F.2d 375, 394 (1973); Virginia Petroleum Jobbers’ Assoc. v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958).

      . America Balino, et al. v. Department of Health and Rehabilitative Services of the State of Florida, Case No. 76-394, Civ. SMA, pending as of August 24, 1978, in the United States District Court for the Southern District of Florida.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, a foreign corporation, Appellant, v. MIAMI LEASING AND RENTALS, INC., a Florida Corporation, Appellee.
    No. 77-1911.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Rehearing Denied Sept. 29, 1978.
    John A. Murray, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Defendant insurer appeals a final judgment on the pleadings awarding plaintiff insured $1,160.90 plus costs and attorney’s fees in an action seeking damages for the defendant’s breach of its duty to defend plaintiff.

Plaintiff, Miami Leasing and Rentals, Inc., was insured against all personal injuries arising from, inter alia, malicious prosecution under an insurance policy issued by the defendant-appellant, American Hardware Mutual Insurance Company. Miami Leasing was sued for malicious prosecution and the complainant sought both compensatory and punitive damages. American Hardware advised Miami Leasing that it would not defend on the punitive damages claim and Miami Leasing had to retain counsel to defend it on this claim. As a result Miami Leasing incurred costs and attorney’s fees in the sum of $1,160.90 and then filed the instant suit for recovery on the ground that American Hardware was obligated to defend its interests as to the punitive damages claim as well as the compensatory damages claim. American Hardware answered alleging that the subject policy did not protect Miami Leasing against a claim for punitive damages as asserted in the malicious prosecution lawsuit. Both parties filed motions for judgment on the pleadings and after hearing argument of counsel and reviewing written memoranda of law in support of the respective motions, the trial court entered final judgment for Miami Leasing. American Hardware appeals. We affirm.

We agree with Miami Leasing that American Hardware has misconceived the issue as being one of coverage. The dispositive issue is whether American Hardware was under a duty to defend. The well established law is that where the complaint against the insured contains allegations which are partially within and partially without the scope of the insured’s coverage, then the insurer must defend even those portions of the complaint which are outside the coverage. See Travelers Indemnity Company v. Thomas, 315 So.2d 111 (Fla. 1st DCA 1975); Employers Commercial U. Ins. Co. of Am. v. Kottmeier, 323 So.2d 605 (Fla. 2d DCA 1975); Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1976).

Affirmed.


text:
    Nery S. CUBA and Tomas Rafael Llamas-Almaguer a/k/a Tomas Llamas, Appellants, v. The STATE of Florida, Appellee. Eduardo Luis FLORES a/k/a “Eddy” a/k/a “Flores”, Fernando Alfredo Mateu, Jaime Romero and Pedro Pablo Sanchez a/k/a “Chino”, Appellants, v. The STATE of Florida, Appellee. Reinaldo Demetrio MENESES a/k/a “Guajiro”, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-2224, 77-63, 77-498 and 77-674.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Rehearing Denied Sept. 29, 1978.

      Hirschhorn & Freeman and Joel Hirsch-horn, Weiner, Robbins & Tunkey and William R. Tunkey, Pertnoy & Greenberg, Miami, for appellants.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before KEHOE, J., and BOYD, JOSEPH A., JR., and CHARLES CARROLL (Ret.), Associate Judges.
   PER CURIAM.

The appellants in these consolidated appeals were defendants below in criminal prosecutions based on informations by which each was charged in a Count I with conspiracy to aid or assist in the conduct of a lottery, and in a Count II with aiding or assisting in conducting a lottery. Appellants, Eduardo Luis Flores, Fernando Alfredo Mateu, and Jaime Romero, by an additional count, were charged with possession of lottery paraphernalia.

Appellants, Tomas Rafael Llamas Alma-guer, a/k/a Tomas Llamas, Reinaldo Deme-tris Meneses and Nery S. Cuba, pleaded nolo contendere with reservation of right of appeal from orders of denial of motions to suppress.

Llamas was sentenced on Count II to three years’ imprisonment to be followed by two years’ probation; and on Count I to a fine of $1,000.00 and one year probation to be served at the conclusion of the Count II sentence.

Meneses was sentenced to imprisonment for two years on each of Counts I and II with the sentences to run concurrently.

Cuba, on Count I, was placed on probation for one year with sentence withheld and, on Count II, was fined $1,000.00 and placed on probation for three years to run concurrently with Count I.

Appellants, Flores, Mateu, Romero and Pedro Pablo Sanchez pleaded not guilty and were convicted on jury trials.

Flores, convicted on Counts I and II and acquitted on the third count, was sentenced on Count II to imprisonment for two-and-one-half years to be followed by two-and-one-half years’ probation, and on Count I was fined $5,000.00 and placed on probation for one year to run concurrently with the Count II probation.

Mateu, on Count II, was sentenced to imprisonment for two-and-one-half years to be followed by probation for a like period; and on Count I, on which sentence was deferred, one year probation was imposed to run concurrently with the Count II probation. On the additional count a $5,000.00 fine was imposed with one year probation to run concurrently with the Count I probation.

Romero, who was found guilty only on Counts I and II, was sentenced on Count II to imprisonment for two-and-one-half years to be followed by probation for a like period; and on Count I was fined $5,000.00 and placed on probation for one year to run concurrently with the Count II probation.

Sanchez, found guilty on Counts I and II, received the same sentences thereon as given to Romero, as described above.

All of the appealing defendants argue it was error to deny their pretrial motions to suppress evidence obtained through utilization of or as a result of interception of wire and/or oral communications authorized by court orders. In addition, the appellants who were tried contend the court erred in refusing a request for a jury instruction as to the penalties provided by law for conviction of the offenses charged and lesser included offenses, and contend it was error to include as a condition of their probation that each of said defendants should pay restitution in the amount of $4,000.00 toward the cost of the investigation.

Dealing with those contentions of appellants in reverse order of the statement thereof, we hold the contentions of error regarding said condition of probation and as to denial of the requested jury instruction are without merit.

Section 948.03, Florida Statutes (1975) provides that the court shall determine the terms and conditions of probation and may include among them certain conditions therein listed, one of which was to make reparation or restitution to the aggrieved party for the damage or loss caused by his offense, in an amount to be determined by the court. Appellants contend that provision is not applicable to the condition imposed, for restitution toward the cost of the investigation, in that such is not restitution to an aggrieved party. The State argues the condition is proper in that the public, upon which the expense of the investigation ultimately is imposed, is the aggrieved party in this circumstance. We hold the condition was valid on the authority of Brenner v. State, 337 So.2d 1007 (Fla.3d DCA 1976), cert. den., Fla., 348 So.2d 944. In Brenner, in plea bargaining by which defendants pleaded nolo conten-dere one of three counts was dismissed and sentences were imposed on the other counts for imprisonment for a term of years followed by a period of probation, the defendants had agreed to a probation condition requiring them to pay a proportionate share of the expense of the investigation costs. On appeal, the defendants contended it was error to impose that condition of probation. In regard thereto this court held the defendants could not disavow their prior agreement for the restitution condition, but in addition held that the condition assessing against defendants their pro rata share of the investigation costs was “constitutionally permissible and enforceable, in that the defendants do not argue that they are insolvent”.

The refusal of the court to give the requested instruction as to penalties was not error. In Johnson v. State, 308 So.2d 38 (Fla.1975) the Supreme Court held that the provision for such instruction as set out in Florida Rules of Criminal Procedure 3.390(a) was directory and not mandatory, and that the granting or denying of a request for such instruction would rest within the sound discretion of the trial judge. That ruling has been followed in numerous later decisions. See: State v. Terry, 336 So.2d 65, 66, n.1 (Fla.1976).

In contending that the court committed reversible error by denying their motions to suppress, the appellants present five grounds. On consideration thereof in light of the record, briefs and argument we hold they are without merit.

First, appellants argue that the official to whom the application was made and who entered the wire tap order was not a “neutral and detached magistrate”. In cases relied on by the appellants, Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947) and Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977), it was pointed out that the requirement is that the official to whom the application is to be made and who is to determine probable cause shall be a neutral and detached magistrate, as distinguished from an officer engaged in the often competitive enterprise of ferreting out crime. Here that official, a circuit judge, fully met that requirement.

Secondly, appellants argue that the affidavit upon which the wire tap order was entered was insufficient as a matter of law due to “staleness” of the evidence used to establish probable cause. Appellants rely on Rodriguez v. State, 297 So.2d 15 (Fla. 1974). We find that contention of the appellants to be unsound. Viewed by the test of time, which is not necessarily conclusive as to staleness (Rodriguez v. State, supra), the State points to lack of staleness on that ground. Moreover the affidavit contained items of information based on material activities observed by officers on physical surveillance in the area that were only three, four, and five days prior to the date of the affidavit. Other factors negating staleness were the nature of the criminal activity involved (Rodriguez v. State, supra, 297 So.2d at 18; United States v. Kirk, 534 F.2d 1262, 1274 (8th Cir. 1976)), and the protracted and continuous course of conduct for which passage of time is of less significance with respect to probable cause, as contrasted with an application affidavit which.relates an isolated violation with regard to which it reasonably may be assumed that passage of time operates to diminish probable cause. United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972).

Thirdly, appellants contend the affidavit was insufficient because there was no “complete statement” as to failure of alternative investigation techniques, or as to why the latter were not utilized. That argument is predicated on the requirement of the statute [934.09(l)(c), Florida Statutes (1975)], viz: “A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous”.

The purpose of that requirement as stated by the Supreme Court of the United States with reference to a similar provision in the Federal statute, is “to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suifice to expose the crime.” United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Also it is held in federal decisions that it is not the purpose of that requirement that electronic surveillance must be foreclosed until every other imaginable method of investigation has been unsuccessfully attempted, “but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques”. United States v. Pacheco, 489 F.2d 554, 565 (5th Cir. 1974); United States v. Alfonso, 552 F.2d 605, 611 (5th Cir. 1977). It is common knowledge, derived from experience, that conventional investigative techniques generally are insufficient for adequate and successful prosecutorial termination of such criminal lottery activities. See: United States v. Abramson, 553 F.2d 1164, 1171 (8th Cir. 1977).

Further, appellants contend the affidavit was improper and insufficient due to the state’s “Piggy-Backing” of wire tap orders. We have been shown no Florida decision bearing directly on that point. Appellants cite a Maryland case, Calhoun v. State, 34 Md.App. 365, 367 A.2d 40 (1977), in which it was held that a sufficient affidavit, on which a wiretap order had been entered, when used to support application for a wiretap at another location, with no statement repeated as to ineffectiveness of conventional investigation techniques, was insufficient, and that each affidavit must stand on its own foundation. We hold that appellants’ contention of “piggy-backing” is not applicable to the subsequent application here. The fact that an affidavit for a subsequent order was based in part on information derived from the prior affidavit does not invalidate the former where, as here, the second affidavit did not depend solely on the facts set out in the first; the facts of the prior affidavit were not insufficient; and the subsequent affidavit was based in part on facts derived by new and further investigation (United States v. Iannelli, 430 F.Supp. 151 (N.D.Pa.1977)), and upon subsequent information supplied by F.B.I. agents. In United States v. Cantor, 328 F.Supp. 561 (E.D.Pa.1971) it was held it was proper that the facts of an affidavit used for a prior intercept order should be included in a subsequent application affidavit, as a means of disclosing all the facts to the court. Therefore, as to the challenged affidavit, which in addition to reciting facts of the prior affidavit contained new and material facts developed by further investigation, the contention of insufficiency on the ground stated was without merit.

A fifth argument of appellants was that the intercept orders were overbroad, so as to provide for a general search, citing Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), and Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1964), as having proscribed broad general search warrants. The record does not support that contention. The orders were properly limited as to scope and duration. It was so held with reference to an order with similar provisions, in United States v. Cohen, 530 F.2d 43 (5th Cir. 1976).

For the reasons stated we hold no reversible error has been shown and the judgments appealed from are affirmed. We have considered and reject as without merit a cross-assignment of error filed by the State which presented a question relating to the sentences.

Affirmed.


text:
    Felicita RUIZ, Appellant, v. The MARSHALL WOLPER COMPANY and Max Bauer Meat Packing, Inc., Appellees.
    No. 77-1795.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Rehearing Denied Sept. 27, 1978.
    Jerold Hart, North Miami, for appellant.
    Corlett, Merritt, Killian & Sikes, Greene & Cooper and Sharon L. Wolfe, Preddy, Kutner & Hardy, Miami, for appellees.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   PER CURIAM.

In this appeal by the plaintiff from summary final judgment in favor of both defendants, in an action for negligent failure to change the beneficiary of a life insurance policy, we find that the defendants failed to carry their burden of showing conclusively that there was no genuine issue as to any material fact. Therefore, summary final judgment in favor of the defendants is reversed, and the cause is remanded to the trial court for further proceedings. Wills v. Sears Roebuck & Company, 351 So.2d 29 (Fla.1977); Knipp v. Weinbaum, 351 So.2d 1081 (Fla.3d DCA 1977).

Reversed and remanded.


author: PER CURIAM. BOOTH, Judge, PER CURIAM. BOOTH, Judge,

text:
    Steven Merrill SELLARS, Appellant, v. STATE of Florida, Appellee.
    No. GG-396.
    District Court of Appeal of Florida, First District.
    July 18, 1978.
    Rehearing Denied Sept. 25, 1978.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Sellars appeals his convictions following non-jury trial finding him guilty of three counts of robbery, three counts of use of a firearm in the commission of each of the robberies and four counts of conspiracy.

Sellars complains that the three sentences imposed upon him for possession of a firearm during the commission of three robberies were illegal because each offense was a facet of the robbery for which he was also sentenced. We agree and reverse. Only one sentence may be imposed for the offense of robbery and use of a firearm during the commission of the same robbery. Cone v. State, 285 So.2d 12 (Fla.1973); Zygadlo v. State, 341 So.2d 1053 (Fla. 1st DCA 1977); Davison v. State, 346 So.2d 1238 (Fla. 1st DCA 1977). Contra Campbell v. State, 310 So.2d 319 (Fla. 3d DCA 1975); Swyers v. State, 334 So.2d 278 (Fla. 3d DCA 1976); Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1976).

The court additionally failed to accord Sellars credit for time previously served in jail awaiting trial contrary to Section 921.161, Florida Statutes (1977). Accordingly the three sentences imposed upon appellant for use of a firearm during the commission of the robberies are vacated. The cause is remanded to the trial court so that appropriate credit may be imposed upon the remaining sentences. The sentences are otherwise affirmed.

AFFIRMED in part, REVERSED in part.

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

BOOTH, J., dissenting in part and concurring in part.

BOOTH, Judge,

dissenting in part and concurring in part.

I dissent as to the reversal of the convictions for possession of a firearm and concur in the remainder of the opinion.

ON PETITION FOR REHEARING

PER CURIAM.

We have considered both appellant’s and appellee’s petitions for rehearing and deny them. We find, however, that further explication should be made as to that portion of our opinion vacating three sentences imposed upon appellant for use of a firearm during the commission of the three robberies. Appellant was charged in a ten count information with three counts of robbery while using a firearm, contrary to Section 812.13(2)(a), Florida Statutes (1975), which makes it a felony of the first degree, punishable by life imprisonment. Three of the counts of the information also alleged appellant’s use of a firearm during the commission of the three robberies, contrary to Section 790.07(2), Florida Statutes (1975), which provides that the display of a firearm during the commission of a felony is a felony of the second degree.

While Section 775.021(4), Florida Statutes (1977), was not effective until October 1, 1976, subsequent to the dates the offenses were committed, and is of course not applicable, we believe even if the statute were in existence, it would still be inefficacious since it specifically excludes “lesser included offenses, committed during said criminal episode, . . .” The offenses charged in counts two, five and eight of the information, alleging display of a firearm during the commission of the robberies, must be considered lesser included offenses to the greater offenses of the armed robberies. Fla.R.Crim.P. 3.510 authorizes a jury to convict a defendant “of any offense which is necessarily included in the offense charged.” Rule 3.510 was derived from Section 919.16, Florida Statutes (1965). In interpreting the statute which was worded in substantially the same fashion as the rule, the Supreme Court in Brown v. State, 206 So.2d 377, 381-382 (Fla.1968), stated:

The statutory mandate here requires that the lesser offense be necessarily included in the major offense charged by the accusatory pleading. This simply means that the lesser offense must be an essential aspect of the major offense. In other words, the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence. (Emphasis in original.)

The court continued that if there was sufficient evidence to establish the major offense charged, there is necessarily sufficient evidence to establish all elements of the lesser included offense. Id. at 382.

We conclude from Brown that display of a firearm during the commission of a robbery which is proscribed by Section 812.13(2)(a), is therefore a necessarily included offense to the major offense charged. The evidence relating to the same transactions as those of the robberies revealed the use of a firearm during the commission of the three robberies. The greater offense of armed robbery could not have been established without proof of the lesser crime “as an essential link in the chain of evidence.”

The petitions for rehearing are DENIED.

SMITH, Acting C. J., and ERVIN,' J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I would grant rehearing and affirm the separate sentences below for use of a firearm during the commission of a felony. Florida Statute § 775.021(4), effective October 1, 1976, provides:

“Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order' the sentences to be served concurrently or consecutively.”

The Legislature has thus adopted and codified the line of cases, rejected by the majority, upholding separate sentences imposed on a defendant convicted of violating two or more criminal statutes as part of the same act or occurrence. Estevez v. State, 313 So.2d 692 (Fla.1975) [separate sentences for (1) breaking and entering with intent to commit a felony, to wit: grand larceny, and (2) grand larceny, upheld]; Campbell v. State, 310 So.2d 319 (Fla. 3d DCA 1975) [separate sentences for (1) rape and (2) unlawful possession of a firearm in commission of offense, upheld]; Swyers v. State, 334 So.2d 278 (Fla. 3d DCA 1976) [separate sentences for (1) involuntary sexual battery, (2) false imprisonment, (3) kidnapping and (4) unlawful possession of a firearm in commission of offense, upheld]; Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1976) [separate sentences for (1) robbery and (2) display of a firearm during commission of a felony, upheld].

The majority relies on Cone v. State, 285 So.2d 12 (Fla.1973), a questionable authority as stated in Johnson v. State, supra:

“We find that the appellant’s reliance on Cone v. State is misplaced inasmuch as Cone has been overruled by implication by the holdings and reasoning of subsequent Florida Supreme Court decisions. See Estevez v. State, 313 So.2d 692 (Fla. 1975); Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975); and State v. Ray, 331 So.2d 316 (Fla.1976).”

In the instant case the defendant was convicted of three counts of armed robbery [Florida Statute § 812.13], a felony of the first degree; and three counts of use of a firearm during the commission of a felony [Florida Statute § 790.07(2)], a felony of the second degree, as well as four counts of conspiracy to commit a felony [Florida Statute § 777.04(4)(b)]. On substantially similar facts in Baum v. State, 353 So.2d 936 (Fla. 3d DCA 1978), the court held:

“Joseph Baum was charged by information with two counts of robbery and one count of unlawful possession of a firearm during the commission of a felony. He was tried by jury, found guilty, convicted and sentenced to consecutive terms of life imprisonment in the state penitentiary for each of the robbery charges, and fifteen years imprisonment for the charge of unlawful possession of a firearm .
******
The second point is that the court erred in imposing separate consecutive sentences for robbery and for unlawful possession of a firearm, where both charges arose out of the same transaction. This sentencing question has been resolved adversely to the defendant. See Estevez v. State, 313 So.2d 692 (Fla.1975); Swyers v. State, 334 So.2d 278 (Fla. 3d DCA 1976); Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1976).”

The decision in Baum and cases cited therein is both the better view and the view now codified as the law of the State of Florida.

I respectfully dissent.

      . Which provides:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

      . Offenses here were committed in February of 1976.


text:
    Valerie Denise CURRY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1933.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Rehearing Denied Sept. 27, 1978.

      Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Stephen L. Bolotin, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant, Valerie Denise Curry, was placed on probation for eighteen months. After the expiration of her probation, an amended affidavit charged her with failing to file a monthly report, moving without securing the permission of her probation officer, and with the commission of a new crime. This new crime was alleged to have occurred after the expiration of her probation. Following the hearing on the petition to revoke probation, the trial court modified the probation as follows:

“IT, THEREFORE, IS ORDERED AND ADJUDGED that the probation of the aforesaid defendant ought to be modified, and it is hereby modified in accordance with Section 948.03, Florida Statutes, in the following manner: That the aforesaid’s probation be extended so that the normal termination date be four from the original date of probation; that the aforesaid be sentenced to eighteen (18) months in State Prison as a special condition of probation; that the aforesaid pay the medical expenses of the victim, Elijah McCray, 315 S.W. 6th Terrace, Homestead, Florida.”

The person to whom the probationer was required to pay medical expenses was the alleged victim of the criminal offense charged, which occurred after the expiration of her period of probation. It should be noted that nothing in this opinion affects the right of the State to bring her to trial on this charge.

It is apparent that the order modifying probation was illegally entered, based upon evidence of alleged violations after the expiration of the probation. See the rule in O’Steen v. State, 261 So.2d 208 (Fla. 1st DCA 1972). See also Section 948.06(1), Florida Statutes (1977).

In view of the fact that appellant has now served a portion of the sentence that was made a condition of the order modifying probation which must now be reversed, accordingly, we reverse the order without direction for retrial and we hereby direct the discharge of the appellant. In view of the circumstances of this case, the time for petition for rehearing is limited to three days.

Reversed with directions to discharge the appellant.


text:
    Louis A. BRESLERMAN et al., Appellants, v. DORTEN, INC., a Florida Corporation, et al., Appellees.
    No. 77-1601.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Rehearing Denied Sept. 27, 1978.

      Grusmark, Jaffe & Karten and Milton E. Grusmark, Miami, for appellants.
    Schwartz, Klein & Steinhardt and Norman S. Klein, Miami, for appellees.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   PER CURIAM.

This is an appeal by the plaintiffs from an order dismissing their complaint in a class action for recission of lease and damages. The record reflects that in or about 1975, the plaintiffs filed a class action for damages and recission of a 99 year condominium recreation lease alleging that a portion of the leased condominium recreation property is located beyond the mean high water mark. The trial judge dismissed the complaint. On appeal to this court, the order of dismissal was affirmed for the reason that the complaint sounded in fraud and deceit. It was held that a cause of action based on fraud and deceit is generally inappropriate for a class action. Breslerman v. Dorten, Inc., 320 So.2d 442, 443 (Fla. 3d DCA 1975).

In or about 1976, the plaintiffs proceeded to refile their class action, deleting the allegations of fraud and deceit. Upon motion of the defendants, the trial court again dismissed the complaint and this appeal ensued.

Review of the complaint as refiled discloses that plaintiffs state a valid cause of action for a class action. Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla. 2d DCA 1963); Costin v. Hargraves, 283 So.2d 375 (Fla. 4th DCA 1973). Further, we hold that Section 718.111, Florida Statutes (1977), does not prohibit a condominium unit owner from bringing a class action on behalf of all unit owners of the condominium similarly situated. Imperial Towers Condominium, Inc. v. Brown, 338 So.2d 1081 (Fla. 4th DCA 1976). Therefore, we find that the trial court erred in dismissing the complaint.

Reversed and remanded.


author: NATHAN, Judge.

text:
    J & S COIN OPERATED MACHINES, INC., Appellant, v. David GOTTLIEB, Mark Gottlieb, Joseph Comras, citizens of the State of New York, and U. S. Shelter Corporation, et al., Appellees.
    No. 77-1808.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Rehearing Denied Sept. 27, 1978.

      Dubbin, Schiff, Berkman & Dubbin and Evan J. Langbein, Miami, for appellant.
    Malcolm B. Wiseheart, Jr., Miami, for appellees.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   NATHAN, Judge.

This is an appeal by the plaintiff from an adverse order on defendants’ motion for judgment on the pleadings in an action for injunction and declaratory judgment as to the parties rights under a franchise agreement for coin operated laundry equipment, and a subsequent modification of the agreement. Plaintiff raises two points on appeal.

The first point is that judgment on the pleadings was improper as defendants’ motion for judgment on the pleadings was filed prior to the filing of defendants’ answers), and the pleadings were not closed. There is no waiver reflected in the record. Therefore, the cause was not at issue, the motion was prematurely filed and the court erred in entertaining it at this stage of the proceedings. Storer v. Florida Sportservice, Inc., 115 So.2d 433 (Fla.3d DCA 1959); Shealor v. Ruud, 221 So.2d 765, 768 (Fla.4th DCA 1969); White v. Dyer, 261 So.2d 863 (Fla.2d DCA 1972); Fla.R.Civ.P. 1.140(c).

The second point is that the court summarily construed the letter modifying the agreement without considering the legal effect of both instruments together and without considering evidence as to the intent of the parties. We agree. As a general rule, it is the duty of the court to determine the intention of the parties from the language used, apparent objects to be accomplished, other provisions in the agreement which might shed light on the question, and the surrounding circumstances at the time the agreement was entered into. Bal Harbour Shops, Inc. v. Greenleaf & Crosby Co., Inc., 274 So.2d 33, 15 (Fla.3d DCA 1973); Bornstein v. Somerson, 341 So.2d 1043, 1047 (Fla.2d DCA 1977).

Reversed and remanded.


author: KEHOE, Judge.

text:
    METROPOLITAN DADE COUNTY TRANSIT AUTHORITY, Appellant, v. Charles SMITH et ux., Appellees.
    No. 77-119.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Rehearing Denied Sept. 27, 1978.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.
    Nachwalter, Christie & Falk, Miami, Spector & Tunnicliff and Sam Spector, Tallahassee, for appellees.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, defendants below, bring this appeal from a final judgment, dated November 18, 1976, entered by the trial court pursuant to a non-jury trial, awarding money damages to appellees, plaintiffs below, as a result of injuries sustained by appellee Charles Smith in a collision with a bus being operated by appellant Metropolitan Dade County Transit Authority [hereinafter referred to as MTA]. We affirm.

The points on appeal may be summarized as follows: (1) whether the judgment should be reversed on the basis of sovereign immunity and the notice provisions of Section 2.2, Code of Metropolitan Dade County; (2) whether the trial court erred in entering summary judgment on the question of liability and limiting the trial to the issue of damages; and (3) whether the amount of the damages awarded was excessive and unsupported by the evidence.

In regard to appellants’ first point on appeal, we feel that, under the facts of this case, the doctrine of sovereign immunity is inapplicable. Butts v. County of Dade, 178 So.2d 592 (Fla.3d DCA 1965). Further, appellants’ contentions in regard to the lack of notice pursuant to Section 2.2,. Code of Metropolitan Dade County, are without merit.

In our opinion, the trial court did not err in granting summary judgment on the question of liability in favor of appel-lees and limiting the trial below to the question of damages. The record reflects sufficient evidence to sustain the summary judgment. We note that the evidence shows as a matter of law some degree of negligence on the part of MTA. We further note that the question of the imputed liability of appellee Charles Smith was not raised in the trial court; therefore, it cannot be raised for the first time by this appeal.

In regard to appellants’ third point on appeal, it is our opinion that the amount of the damages awarded is supported by competent substantial evidence in the record; therefore, we cannot substitute our opinion for that of the trier of facts. Accordingly, this point is also without merit.

Affirmed.


text:
    Sigrun Anke MERRILL, Appellant, v. Robert Edward MERRILL, Appellee.
    No. 77-2175.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Rehearing Denied Sept. 29, 1978.
    Joseph A. McGowan, Miami, for appellant.
    Ferrell & Ferrell and Milton M. Ferrell, Miami, for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Burch v. Burch, 352 So.2d 552 (Fla.3d DCA 1977); and Koeppel v. Koeppel, 351 So.2d 766 (Fla.3d DCA 1977).


text:
    The STATE of Florida, Appellant, v. Delroy GIBSON, Appellee.
    No. 78-257.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Rehearing Denied Sept. 27, 1978.

      Janet Reno, State’s Atty. and George Volsky, Asst. State’s Atty. and Howard Blumberg, Legal Intern, for appellant.
    Bennett H. Brummer, Public. Defender and Paul Morris, Asst. Public Defender, for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

By this interlocutory appeal, the State brings for review an order of the trial court which suppressed evidence contained in an address book belonging to the defendant. The trial judge has given us a full statement of the facts in her order. They are as follows:

“1. On September 3,1977, the Defendant was arrested for the crime of first degree murder.
“2. On November 23, 1977, the Defendant was incarcerated in the Dade County Jail.
“3. For approximately two weeks pri- or to November 23,1977, one Lloyd Plum-mer had been the Defendant’s roommate. Mr. Plummer appeared for deposition at the Metropolitan Justice Building pursuant to a subpoena issued by defense counsel.
“4. In order to verify his time for appearance, Mr. Plummer searched the dresser he had shared with the Defendant to find the subpoena. He came upon various personal belongings of the Defendant, among which was an address book.
“5. The Defendant did not give Mr. Plummer permission to read the contents of the address book.
“6. In seeking to deliver certain personal belongings, including the address book, to the Defendant, Mr. Plummer voluntarily without any request from the Defendant brought them with him to the Metropolitan Justice Building on the date scheduled for his deposition to deliver them to the Defendant’s attorney.
“7. While en route to the office of defense counsel, Mr. Plummer met the prosecutor in the case, Assistant State Attorney Darby.
“8. Mr. Plummer informed the prosecutor that he possessed personal belongings of the Defendant and wished to deliver them to the appropriate person, whereupon the prosecutor obtained the address book with the consent of Mr. Plummer, leafed through the pages and came upon a statement written by the Defendant which incriminated him in this cause.
“9. Upon learning that the prosecutor sought to use said statement against the accused, defense counsel filed a motion seeking the suppression of the statement on the grounds that: [1] the search and seizure of the address book by the prosecutor was unreasonable and thereby in violation of the Fourth Amendment to the Constitution of the United States and Article 1, Section 12 of the Constitution of the State of Florida; [2] the introduction of the statement into evidence would be violative of the privilege against self-incrimination as guaranteed by the Fifth Amendment to the Constitution of the United States and Article 1, Section 16 of the Constitution of the State of Florida.”

The trial court, in an earnest effort to follow this court’s decision in State v. Kircheis, 269 So.2d 16 (Fla. 3d DCA 1970), held as follows:

“10. This Court finds State v. Kircheis, 269 So.2d 16 (Fla. 3d DCA 1970) to be dispositive of the Defendant’s self-incrimination claim. In Kircheis, the Defendant, while in jail, requested that his briefcase be brought to him. Prior to delivering the briefcase to the Defendant, a police officer searched the briefcase and found a written incriminatory statement of the Defendant, to wit: T killed Ivy Prather.’ (the victim of the alleged homicide.) In affirming the order suppressing the statement, the Third District Court of Appeal held:
‘ . . . evidence [lawfully] seized which is ‘testimonial’ or ‘communicative’ in nature, the introduction of which would amount to compelling the Defendant to become a witness against himself, is subject to be suppressed because in violation of the fifth amendment. This exception was pointed out by the Supreme Court of the United States in Maryland Penitentiary v. Hayden, [387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782] supra, citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. For that reason . the order suppressing the ‘testimonial’ or ‘communicative’ statement found in the briefcase was not error.’ Id. at 17.

The same holding would control the case at bar, there having been no waiver by the Defendant of his privilege against self-incrimination.

“The Kircheis holding squarely comports with the principles espoused in Miranda v. Arizona, 384 U.S. 436, 460 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966) wherein the Court noted:

‘Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a ‘noble principle often transcends its origins,’ the privilege has come rightfully to be recognized in part as an individual’s substantive right, a ‘right to a private enclave where he may lead a private life. That right is the hallmark of our democracy.’ (Citation omitted)
“This Court finds that the Defendant possessed a reasonable expectation that the privacy of his writings in his address book would not be invaded. This brings the Court to the search and seizure question.
“11. The Court finds that the facts support the conclusion that the Defendant sought to preserve his writings as private; the Defendant did not consent to a search of his address book nor knowingly expose it to the public. It cannot be disputed that the Defendant’s writings ■ in the address book were constitutionally protected under the search and seizure clauses of the state and federal constitutions.
“As such, an unreasonable search and seizure by a state officer was conducted when the prosecutor seized the address book and searched its contents with the knowledge that said book was a personal belonging of the Defendant, the custodian of which sought to deliver it to the Defendant’s attorney.
“The Fourth Amendment protects people and not simply places; a Defendant’s reasonable expectation of privacy must not be invaded by unreasonable state action. Katz v. United States, 389 U.S. 347 [88 S.Ct. 507, 19 L.Ed.2d 576] (1967). No viable justification is offered for the prosecutor’s obtaining and examining the Defendant’s address book. No probable cause existed to believe that the book contained evidence of a crime. Even if probable cause had existed, the search warrant requirement was not fulfilled. Cf. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476 [53 L.Ed.2d 538] (1977).”

As an additional ground upon which the motion to suppress was granted, the trial court found that the seizure of the address book constituted an unreasonable search and seizure by the prosecutor.

We hold that the trial court’s reliance upon our opinion in State v. Kircheis, 269 So.2d 16 (Fla. 3d DCA 1972), was misplaced and that the writing contained in the address book does not come under the holding of that case. In addition, we hold that the delivery of the address book to the prosecuting attorney did not constitute an unreasonable search and seizure.

In State v. Kircheis, supra, this court held that a handwritten statement which stated that the defendant had killed the victim of the alleged homicide and which was lawfully seized from defendant’s briefcase was not admissible in a manslaughter prosecution because the admission of the statement would amount to compelling the defendant to become a witness against himself. A decision of this court rendered subsequent to Kircheis, i. e., the case of Hampton v. State, 308 So.2d 560 (Fla. 3d DCA 1975), limited the holding of Kircheis to situations involving the admission of handwritten confessions, as contrasted to the introduction into evidence of an admission against interest. In Hampton, a letter written by a defendant in jail to another inmate, asking him to say nothing about what the defendant had told him concerning a rape, was held admissible, the court specifically noting that State v. Kircheis, supra, was distinguishable on the facts.

In addition, we think that the holding in Hampton v. State, supra, is in accord with the holdings of the Supreme Court of the United States in Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), and Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

The statement in the address book having been voluntarily committed to writing by the defendant prior to the alleged crime for which he will now be tried does not constitute a confession barred by the privilege that a defendant may not be required to testify against himself.

Turning to the court’s finding that the circumstances under which the State came into possession of the address book constituted an illegal search and seizure, we hold that the facts of this case do not support that holding. Defendant’s roommate, Mr. Plummer, had lawful possession of the address book and while it was in his custody, he voluntarily allowed the prosecuting attorney to examine the book. Evidence discovered in a private search is not subject to exclusion for failure to obtain a search warrant or otherwise comply with the requirements of the Fourth Amendment unless the private party, in the light of all the circumstances of the case, must be regarded as having acted as an instrument or agent of the State. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). As Mr. Plummer was not requested by the State to make a search and made the search voluntarily on his own account, he cannot be held to have been an agent of the State. The trial judge specifically found that the prosecutor had obtained the address book with the consent of Mr. Plummer. Therefore, no seizure under the Fourth Amendment can be found from that circumstance. In addition, we find nothing in this record to substantiate the trial judge’s holding that the defendant had a justifiable expectation of privacy in the notations placed in the address book when he left the book in a dresser which he shared with his roommate, Plummer. See Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). We, therefore, hold that the trial court erred in holding that the examination of the address book by the State constituted an unreasonable search and seizure.

The order suppressing the evidence is reversed and the cause is remanded.


author: GRIMES, Chief Judge.

text:
    SOL WALKER & COMPANY, a Florida Corporation, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, Appellee.
    No. 77-1487.
    District Court of Appeal of Florida, Second District.
    July 26, 1978.
    As Modified On Denial of Rehearing Sept. 1, 1978.

      John R. Bush and Claude H. Tison, Jr. of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Ronald D. McCall of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellee.
   GRIMES, Chief Judge.

This appeal involves complex questions'of res judicata, indemnity and contribution.

Appellant (Walker) is a scrap iron dealer in Tampa. In order to ship scrap Walker maintains on its premises sidetracks which connect to the main line of appellee (Seaboard). The parties entered into a sidetrack agreement which contained a provision requiring Walker to indemnify Seaboard for liability incurred through Walker’s negligence and providing that claims arising from the joint or concurring negligence of both parties would be borne by them equally.

Each day, as a matter of practice, Seaboard would deliver open gondola cars to Walker’s scrap iron yard. Walker would load the cars and complete an “OC-1” form for each car which noted that the car had been loaded in good order and condition and was ready for shipping and handling. Seaboard picked up the cars each night. The Seaboard crew was required to inspect each loaded car and to refuse to move any car found to be improperly loaded.

On November 14, 1973, Seaboard picked up four cars loaded by Walker earlier that day. The cars were taken to another location and left overnight to await further handling in the morning. The following day another Seaboard crew transported the cars to a second yard where they were to be placed on tracks leading to their final destination. In the process of uncoupling one of the cars a “cut lever” failed to stay up in the release position, so that John Warder (Warder), a Seaboard switchman, had to run along side of the car and manually hold the lever up in order to uncouple the car when it was “kicked” forward by the thrust of the engine. As he was running with the car and holding the lever a heavy bale of scrap iron fell from the car and struck him on the leg and foot causing him severe injury.

Warder brought suit against Walker and Seaboard. Walker was alleged to have been negligent in loading the car, and Seaboard was alleged to have been negligent in failing to inspect the loaded car and in allowing it to be operated with a defective coupling mechanism. At the conclusion of the plaintiff’s case, Walker obtained a directed verdict. Warder’s case against Seaboard was submitted to the jury, and the jury returned a verdict against Seaboard in the sum of $106,000.

Thereafter, Seaboard filed a complaint against W alker for indemnity and contribution. The six-count complaint sought the following relief:

Count I — indemnification upon allegations of Walker’s active negligence and Seaboard’s passive negligence;
Count II — recovery for breach of contract on allegations that the OC — 1 form constituted a warranty that Walker, had loaded the car in good order and condition;
Count III — indemnity under the sidetrack agreement;
Count IV — contribution under the sidetrack agreement;
Count V — contribution under the Uniform Contribution Among Tortfeasors Act;
Count VI — indemnity and contribution upon allegations that Walker was guilty of willful and wanton misconduct.

After Seaboard presented its case, Walker moved for a directed verdict. The court granted a directed verdict on Counts I, V, and VI but permitted the remaining counts to go to the jury. The jury returned a verdict in favor of Seaboard for $58,587.72, an amount equal to one half of the sum of the Warder judgment and attorneys’ fees. Walker now appeals this judgment, and Seaboard cross-appeals the order directing verdicts on Counts I, V, and VI.

The overriding issue on this appeal is whether the judgment exonerating Walker in the Warder action was res judicata so as to preclude the relitigation of Walker’s responsibility in the case below. Before resolving this issue, however, we deem it advisable to first address several other questions.

Walker contends that Counts III and IV should not have been submitted to the jury because the indemnity provision upon which these counts were predicated was not applicable to the Warder accident. The pertinent provision of the sidetrack agreement reads as follows:

Shipper will indemnify and hold Railroad harmless for loss, damage or injury from any act or omission of Shipper, his employees or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about the track, and if any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto, it shall be borne by them equally.

Walker asserts that this provision is wholly inapplicable because the accident occurred at a location far away from the sidetrack covered by the agreement.

The question is what do the words “while on or about the track” modify? If they modify the words “any act or omission of Shipper,” then this provision would be applicable because Walker’s alleged negligence occurred on the track even though the accident happened elsewhere. On the other hand, if the words modify “loss, damage or injury ... to the person or property of the parties hereto and their employees and to the person or property of any other person or corporation,” then the provision is inapplicable because Warder’s injury took place several miles away.

While this provision appears to be customarily used in railroad sidetrack agreements, there are no cases directly on point. The same question involving the same language was presented in Huck v. Chicago, St. Paul, Minneapolis and Omaha Ry. Co., 5 Wis.2d 124, 92 N.W.2d 349 (1958), but an answer to this problem became unnecessary when the court concluded that an injury which occurred only 60 feet away from the track was close enough to be considered as an injury occurring “on or about the track.” Also, the judge’s observations in Southern Railway Co. v. Brunswick Pulp & Paper Co., 376 F.Supp. 96 (S.D.Ga.1974), cannot be deemed controlling because the pertinent language of the indemnity provision in that sidetrack agreement was not the same.

We find that either construction of this provision is logical. From the standpoint of Seaboard, we can see why it would wish to be indemnified for accidents caused by Walker’s negligence regardless of where they occurred. By the same token, Walker could be expected to wish to limit its liability to accidents occurring on or about its premises. Because of this impasse we find it necessary to employ two well established maxims of construction, both of which weaken Seaboard’s position. The first is the rule that a provision in a contract will be construed most strongly against the party who drafted it, in this case Seaboard. Lindquist v. Burklew, 123 So.2d 261 (Fla. 2d DCA 1960). The second is that where an indemnification is not given by one in the insurance business but is given incident to a contract whose main purpose is not indemnification, the indemnity provision must be construed strictly in favor of the indemnitor. Thomas v. Atlantic Coast Line R. Co., 201 F.2d 167 (5th Cir. 1953). The positioning of the words “while on or about the track” in the sentence also tends to slightly favor Walker. Therefore, in the absence of other guidance, we conclude that the indemnity provision of the sidetrack agreement was inapplicable because the accident did not occur “on or about the track.”

We also believe that the court should have directed a verdict on Count II. The OC-1 printed form upon which this count was based was a shipping order and receipt for cargo in which Walker acknowledged

(I or we) have loaded in good order and condition the cars shown below and same is ready for handling as indicated. Please forward subject to carrier bill of lading.

This language seems more logically directed to the condition of the goods at the time they are loaded rather than the manner in which they have been loaded. Perhaps this provision would have been significant if there had been a claim that the scrap had been damaged during the shipment. See Annot., 33 A.L.R.2d 867 (1954). In any event, we fail to see how this provision of the OC-1 could constitute an express warranty, the breach of which makes Walker liable for injuries to a third party.

On the cross-appeal, Seaboard’s contentions with respect to Counts I and VI may be easily disposed of. On Count I Seaboard’s negligence was at least as active as the negligence of Walker. Not only did Seaboard have a responsibility to inspect the car for an improper load, but it was Seaboard’s defective coupling device which ultimately caused Warder to be in the position where the scrap could fall on him. As far as Count VI is concerned, the evidence falls far short of that necessary to demonstrate that Walker was guilty of willful and wanton misconduct.

Count V merits more consideration. This was a claim for contribution under Section 768.31, Florida Statutes (1975), under which Seaboard asserted that the parties were joint tortfeasors and that by virtue of a judgment against it, Seaboard was entitled to recover half of the amount paid to Warder. The effective date of the Uniform Contribution Among Tortfeasors Act was June 12,1975. The act provided that it would apply to all causes of action pending on the effective date wherein the rights of contribution among joint tortfeasors were involved and to cases thereafter filed. Section 768.31(7). By that date the Warder trial had taken place, but the appeal was still pending and the present suit had not yet been filed. Therefore, the statute applied to Seaboard’s claim for contribution, providing Seaboard fit within its provisions. Warn Industries v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977).

Even in the absence of concerted action between Walker and Seaboard, there was a jury question on whether the negligent acts of these parties combined to become the direct and proximate cause of a single injury to Mr. Warder. Hence, we believe that Walker and Seaboard were tortfeasors within the scope of the Uniform Act. Leesburg Hospital Association, Inc. v. Carter, 321 So.2d 433 (Fla. 2d DCA 1975). It was not necessary that Warder have a judgment against both Seaboard and Walker for Seaboard to pursue its claim for contribution against Walker in a separate action. Section 768.31(4)(a). Even though Warder’s claim against Seaboard was under the Federal Employers’ Liability Act (FELA), Seaboard would not be precluded from obtaining contribution from Walker under the Uniform Act where, as here, comparative negligence rather than contributory negligence was applicable to both Warder’s claim against Seaboard under FELA and Warder’s claim against Walker for ordinary negligence. Annot., 19 A.L.R.3d 928 (1968). The fact that the source of Seaboard’s liability was statutory and Walker’s common law is irrelevant because the theory of contribution among tortfeasors is predicated upon the fact that all are legally liable to respond in damages to an injured party because of their wrongful act. Southern Railway Co. v. Foote Mineral Co., 384 F.2d 224 (6th Cir. 1967); Reynolds v. Southern Railway Co., 320 F.Supp. 1141 (N.D.Ga.1969).

As a consequence of the submission of Count IV to the jury, the jury was instructed that Seaboard was entitled to recover one half of the amount of the Warder judgment if the accident was caused by the negligence of both parties. It is evident from the verdict that the jury concluded that the negligence of both parties concurred in proximately causing Warder’s injuries. Given these findings, if Seaboard’s claim under Count V had been submitted to the jury, the verdict should have been the same, because under the provisions of the act applicable to this suit the liability of two responsible tortfeasors was to be shared equally. Lincenberg v. Issen, 318 So.2d 386 (Fla.1975). Therefore, because the verdict, even though submitted on counts which should have been removed from the jury’s consideration, could probably stand if based — as Seaboard contends it should have been — on Count V, it is necessary for us to consider Walker’s argument that Seaboard’s claims were precluded by the judgment in the Warder suit.

Walker relies primarily upon Jackson v. Florida Weathermakers, 55 So.2d 575 (Fla. 1951). This case involved an accident in a grocery store owned and operated by Jacksonville Meat Company (Jax Meat) caused by a piece of tile which fell from the ceiling and struck a customer. At the time of the accident, Florida Weathermakers, Inc. (Weathermakers) was installing an air conditioning system in the store pursuant to a contract with Jax Meat. Weathermakers had subcontracted the electrical wiring to Hall Electric (Hall), and Hall’s men were working over the ceiling when the accident occurred.

The injured customer and her husband brought suit against Jax Meat, Weather-makers, and Hall. Jax Meat filed cross-claims against Weathermakers and Hall, alleging that by virtue of its contract with Weathermakers, one or both of its code-fendants would be liable for any damages incurred by Jax Meat as a result of the suit. The cross-claims were dismissed upon the motions of the two codefendants, whereupon the case went to trial on the issues of each defendant’s negligence as charged in the complaint. The jury returned a verdict in favor of the plaintiffs against Jax Meat but exonerated Weathermakers and Hall from all liability.

On appeal, Jax Meat first contended that it was only derivatively liable for the injury which had been caused by Hall, and that because Hall was exonerated, Jax Meat could not be held liable. The supreme court rejected this argument by pointing out that there was evidence to support the conclusion that Jax Meat was independently negligent for having permitted the public to shop in its store while the work was going on overhead. The court likewise rejected Jax Meat’s contention that its negligence was not a proximate cause of the injury.

Jax Meat also contended that the trial judge had erred in dismissing its cross-claims for indemnity against Weathermak-ers and Hall. The court concluded that the cross-claims sufficiently stated a claim for indemnity arising out of the contract. Thus, the judgment for the plaintiff was affirmed, but the case was remanded with directions to reinstate the cross-claims against Weathermakers and Hall.

On rehearing the court addressed the propriety of the cross-claims and first made the following observation:

After the cross-claims were dismissed, the trial court proceeded to a trial on the question of the negligence of each defendant. The transcript reflects that each defendant separately defended the charge against it and actively participated in the examination or cross-examination of the witnesses, and it appears that the defendants did actually litigate adversely among themselves the question of whether the plaintiff’s injuries were caused “solely and proximately” by reason of the negligence of Hall’s employees, as alleged in the cross-claims. Under such circumstances, the jury’s verdict of “not guilty” as to Hall must be held to be res adjudicata of the question of Hall’s negligence. (Citations omitted.)

Jackson v. Florida Weathermakers, supra at 579. Construing the contract upon which Jax Meat predicated its claim as an agreement to indemnify only against the negligence of the indemnitor, the court stated that because Weathermakers and Hall were exonerated by the verdict, the matter had been set at rest. The court concluded that because the issues of fact presented by the cross-claims were actually litigated and determined adversely to Jax Meat, the dismissal of the cross-claims was harmless error. The judgment was affirmed in its entirety.

One of the authorities relied upon by the supreme court for its decision in Jackson v. Florida Weathermakers, supra, was Restatement of Judgments § 106 (1942), which reads as follows:

When an action is brought against two person who are claimed to be parties in a single contract or liable for a single harm, and valid and consistent judgments are rendered with respect to each, the judgment for or against one of them is conclusive upon the other as to matters decided therein, in a subsequent action between them for indemnity or contribution, if and only if the other had an opportunity to defend or to participate in the defense.

Obviously, the court concluded that even though Jax Meat had not been permitted to prosecute its cross-claims, it “had an opportunity to defend or to participate in the defense.” The only point upon which Jackson can be distinguished is that the code-fendants in that case were exonerated by a jury verdict; whereas, here, the court directed a verdict in favor of Walker before Seaboard had an opportunity to present its own witnesses. Yet, for purposes of res judicata, judgments entered upon directed verdicts generally have the same effect as those based upon a jury verdict. See Fla.R. Civ.P. 1.420(b); 19 Fla.Jur. Judgments and Decrees § 144 (1958); Truscheff v. Abell-Howe Co., 239 N.W.2d 116 (Iowa 1976).

The case of Liberty Mutual Insurance Co. v. Curtiss, 327 So.2d 82 (Fla. 1st DCA 1976), is also pertinent. In Liberty Mutual an automobile accident occurred in Georgia in which Melvin drove a truck into the rear of an automobile and injured passengers Adkins, Mobley, and Robinson. The driver of another truck, Curtiss, was also allegedly a cause of the accident. Adkins sued Curtiss, Melvin, and Melvin’s liability insurance carrier, Liberty Mutual, in a Florida court. The court entered summary judgment for Curtiss on Adkins’ claim, whereupon Melvin and Liberty Mutual paid Adkins a settlement. Melvin and Liberty Mutual made separate settlements with Mobley and Robinson.

Liberty Mutual then brought a new suit against Curtiss for contribution with respect to the payments made to the three injured passengers. Summary judgment was entered against Liberty Mutual. On appeal, the First District Court of Appeal initially observed that Georgia law determined whether, and on what terms, the right of contribution arose in favor of Liberty Mutual. The court concluded that Georgia law permitted the assertion of a claim for contribution even though the payments for which contribution was sought had been made by way of settlement rather than in satisfaction of a judgment in favor of the injured parties. The court then stated that Florida law would control the effect the Florida judgment exonerating Curtiss of liability to Adkins would have on the contribution claims. Pointing out that the liability of Melvin, Liberty Mutual, and Curtiss to Mobley and Robinson had not been directly litigated in the Adkins case, and that there had been no adversarial litigation between the codefendants on their respective responsibilities for the wreck, the court held that Liberty Mutual was not precluded from seeking contribution for the payments to Mobley and Robinson.

On the other hand, the court held that Liberty Mutual could not claim contribution for the payment to Adkins because of the summary judgment exonerating Cur-tiss from liability to Adkins. The court reasoned that the issue was not whether Liberty Mutual had had its day in court on the question of Curtiss’ liability, but rather that the appeal turned on the fact that Curtiss shared no common liability with Melvin and Liberty Mutual to Adkins for which Melvin and Liberty Mutual were entitled to seek contribution. Contribution rests upon the premise that one tortfeasor has discharged a common liability shared by another tortfeasor, and it could not be said that Melvin and Liberty Mutual had discharged a liability to Adkins which they shared with Curtiss. The court acknowledged that its holding was patterned after a line of Minnesota decisions representing a minority view.

While pointing out that Florida’s new Contribution Among Tortfeasors Act did not apply to the case before it, the court observed that had it applied there was a provision in the statute which would have dictated the same conclusion the court reached without the benefit of the statute. The court referred to Section 768.31(4)(f), Florida Statutes (1977), which states:

The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in determining their right to contribution.

In view of Jackson v. Florida Weathermakers, supra, and Liberty Mutual Insurance Co. v. Curtiss, supra, as well as Section 768.31(4)(f), we hold that Seaboard’s claim for contribution under Florida’s Uniform Contribution Among Tortfeasors Act was precluded by thé judgment upon directed verdict in favor of Walker entered in the Warder suit to which Seaboard was a party.

If an adjudication against the plaintiff in favor of one defendant is going to be binding upon a codefendant in subsequent litigation, it seems reasonable that the codefendant who is to be bound should have the right to appeal the initial adjudication in favor of his codefendant. Our sister court seemed to imply as much in Liberty Mutual Insurance Co. v. Curtiss, supra; but see North Shore Hospital v. Martin, 344 So.2d 256 (Fla.3d DCA 1977). While the supreme court did not expressly say so, Jax Meat actually obtained that right of appeal in Jackson v. Florida Weathermakers, supra, insofar as it related to the validity of the claim for indemnification. Since Jax Meat did not point to any error leading to the verdict exonerating Weathermakers and Hall, there would have been no purpose in remanding to correct the trial judge’s original error in dismissing the cross-claims because, upon remand, Jax Meat would still be faced with the binding effect of the jury verdict.

The fact that on Seaboard’s appeal from the Warder judgment, which included a point raising the propriety of the directed verdict for Walker, this court affirmed without opinion does not mean that Seaboard was deprived of its right of appeal on this issue. Seaboard took its appeal from Warder’s judgment rather than from the separate judgment for Walker. If Seaboard had a right to attack the directed verdict for Walker because of its potential binding effect in subsequent litigation, then it should have lodged its complaint in an appeal from the judgment entered in favor of Walker on the directed verdict.

The judgment in favor of Seaboard is reversed, and the case is remanded with directions to enter a judgment for Walker.

BOARDMAN and OTT, JJ., concur.

      . We regard Seaboard’s suggestion that “on or about the track” modifies only the words “the person cr property of any other person or corporation” as the least plausible of the several alternatives.

      . The words “in good order and condition” are often used to describe the condition of goods at the time of shipment for purposes of determining responsibility for damages in transit. An-not., 33 A.L.R.2d 867 (1954).

      . Apparently, the jury did not base its verdict on this count, because if it had, the amount of the verdict would be expected to equal the entire Warder judgment rather than half of it.

      . See Wagner v. Detroit & Mackinac Railway Co., 50 Mich.App. 615, 213 N.W.2d 850 (1973), for a case involving similar facts where the court rejected the shipper’s argument that the railroad’s acceptance of the defectively loaded car constituted an independent intervening cause.

      . The statute has now been amended to provide for the allocation of liability based upon degrees of fault. Sec. 768.3 l(3)(a), Fla.Stat. (1977).

      . By inference, this provision suggests that a judgment exonerating one tortfeasor in a suit in which the second tortfeasor was not a party would not be binding on the second tortfeasor in his action for contribution. This would avoid the result looked upon with apprehension by the Minnesota court in Anderson v. Gabrielson, 267 Minn. 176, 126 N.W.2d 239 (1964). At least where both tortfeasors are parties to the same action, each of them would have the opportunity to try to participate in an adversarial manner in any determination which might lead to the exoneration of the other.

      . Even though Sec. 768.31(4)(f) would not apply to Soaboard’s claims under Counts II, III, and IV, the rationale of these two cases reflect another reason why a directed verdict for Walker should have been entered upon these counts. We are not impressed with Seaboard’s argument that there was an insufficiency of identity of causes of action between the prior judgment for Walker and the breach of contract claim under Count II. Under Seaboard’s theory, whether Walker breached its contract still depended upon a failure to load the railroad car in “good order and condition” which was equivalent to the negligence for which Walker had been exonerated in the Warder trial.

      .With respect to the claim for contribution, the court noted that Jax Meat had no right to complain of the verdict in favor of Weather-makers and Hall because at that time there was no contribution among tortfeasors.


text:
    Bernard BALLARD, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1776.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.
    Rehearing Denied Sept. 27, 1978.
    Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. State v. Matera, 266 So.2d 661, 666-67 (Fla.1972); Ballard v. State, 323 So.2d 297 (Fla. 3d DCA 1975); Stallings v. State, 319 So.2d 640 (Fla. 1st DCA 1975); Phillips v. State, 313 So.2d 428 (Fla. 3d DCA 1975); Fulford v. State, 311 So.2d 203 (Fla. 3d DCA 1975); Morrison v. State, 283 So.2d 137 (Fla. 2d DCA 1973); Yanks v. State, 273 So.2d 401 (Fla. 3d DCA 1973); Ratliff v. State, 256 So.2d 262, 264 (Fla. 1st DCA 1972); Wilcox v. State, 171 So.2d 427 (Fla. 3d DCA 1965).


text:
    AMERICAN SAVINGS & LOAN ASSOCIATION OF FLORIDA, etc., et al., Appellants, v. SAGA DEVELOPMENT CORPORATION, a Delaware Corporation, et al., Appellees.
    Nos. 78-549, 78-570 and 78-571.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 1978.
    Rehearing Denied Sept. 29, 1978.
    Heller & Kaplan and Daniel Neal Heller, Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellants.
    Arky, Freed, Stearns, Watson & Greer and Eugene E. Stearns, Miami, for appel-lees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

By these consolidated appeals, appellants essentially contend that the trial court was without jurisdiction to clarify and modify certain orders it had entered in proceedings following a foreclosure sale. An examination of the record and the relevant law reveals these contentions are without merit. When, after various hearings, the court modified its prior orders, it acted in accordance with the fundamental equitable principle that a trial court has inherent power to control its own judgments, and we perceive no error in the actions taken. Therefore, the orders appealed from are affirmed. Marsh v. Marsh, 72 Fla. 142, 72 So. 638 (1916); Surratt v. Fleming, 309 So.2d 614 (Fla. 1st DCA 1975). See also Fatolitis v. Fatolitis, 247 So.2d 525 (Fla. 2d DCA 1971); Fla.R.Civ.P. 1.540(b). See generally Arlt v. Buchanan, 190 So.2d 575 (Fla.1966).

Affirmed.


author: GREEN, OLIVER L., Associate Judge.

text:
    Wilburn T. RUSSELL and Janice B. Russell, Appellants, v. Jane Ann GUIDER, Helen N. Guider, and United Services Automobile Association, a corporation authorized to do business in the State of Florida, Appellees.
    No. 77-1531.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1978.
    Rehearing Denied Oct. 3, 1978.
    Robert G. Ferrell, III, of Ferrell & Jaco-bus, Melbourne, for appellants.
    Barbara Kane of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellees.
   GREEN, OLIVER L., Associate Judge.

The plaintiff-appellants assign as error certain questions by defense counsel during the voir dire examination in the trial below. They also assign as error comments by defense counsel with regard to this same subject matter during closing arguments. These questions and comments by defense counsel were clearly improper.

The action below was, in general, a typical automobile collision case with an admission of liability. Defense counsel made more than one blatant attempt to inject an emotional issue before the jury concerning a possible relationship between verdicts in such cases generally and the rising insurance premium rates. Although we are firm in our censure of defense counsel for this clearly improper tactic, we are mindful that plaintiffs’ counsel failed to either move for a mistrial or for an instruction that the jury disregard the comments as having no place in the consideration of its verdict.

No error on behalf of the trial judge has, therefore, been established, and although these acts by defense counsel were improper, we do not find them to be error of a fundamental nature. See Griffith v. Shamrock Village, 94 So.2d 854 (Fla. 1957); Seaboard Air Line Railroad Co. v. Strickland, 88 So.2d 519 (Fla. 1956); Tampa Transit Lines v. Corbin, 62 So.2d 10 (Fla. 1953); Apalachicola Northern Railroad Company v. Tyus, 114 So.2d 33 (Fla. 1st DCA 1959).

The final judgment is affirmed.

DAUKSCH and BERANEK, JJ„ concur.