author: PER CURIAM. ENGLAND, Justice,

text:
    Benjamin F. HUCKABY, Appellant, v. STATE of Florida, Appellee.
    No. 47736.
    Supreme Court of Florida.
    Feb. 17, 1977.
    Rehearings Denied March 31, 1977.

      Walter B. Dunagan, Daytona Beach, for appellant.
    Robert L, Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

By direct appeal pursuant to Section 921.141(4), Florida Statutes (1975), we have before us for review a conviction of Benjamin Huckaby for the rape of a child under the age of eleven, for which the jury recommended and the trial judge imposed a sentence of death. The facts are essentially uncontroverted; only their legal implications are in dispute. Huckaby admitted at trial that for more than fourteen years he had regularly engaged in sexual intercourse with his three daughters, beginning when the youngest was about six years old. He denied having ever used force, although admitting that the children probably did not understand the nature of his actions at first, and he suggested the entire course of conduct was condoned, possibly even initiated, by his wife and daughters. The children testified that every incident involved the threat of force or actual force. Their testimony, and that of Huckaby’s six sons, described a nightmarish family life of brutality, fear and sexual assaults which had continued for about twenty years before' any family member gathered the courage to seek help. One neighbor confirmed that Huckaby was a brutal disciplinarian, but other neighbors testified he was merely a very strict parent.

The defense sought to impeach the credibility of the Huckaby children by showing that none of them mentioned the alleged sex acts even to their mother for a number of years, and that no one outside the family was told of these events until they and their mother became angry during divorce proceedings in which a proposed property settlement was not to their liking. There was also an attempt to prove insanity.

The medical evidence is extensive. Huck-aby was discharged from the United States Navy in 1944 because of mental illness pre-dating his enlistment. He was classified as a schizoid personality, but was discharged to his own custody because he was not considered a" menace to himself or others. During the next thirty years Huck-aby established and ran a small but successful construction company, and no public signs of mental disorder appear to have been exhibited at any time.

In 1974 Huckaby was injured in a two-story fall, following which his behavior and physical condition changed. Shortly after the fall a violent incident occurred in his house during which he was stabbed several times by his wife and beaten with a glass bottle and a chair by one of his sons. He was treated at a hospital and admitted to a psychiatric unit after his wife and children reported that he had become irrationally violent. Shortly thereafter he was voluntarily committed to a state mental institution pursuant to The Baker Act, Chapter 394, Florida Statutes (1973). At the commitment hearing, medical reports were introduced which diagnosed his condition as schizophrenic. While under treatment at the state hospital, doctors learned for the first time of Huckaby’s sexual acts with his daughters. Medical tests then taken showed an abnormality in Huckaby’s brain wave pattern, suggesting a possible organic cause for his anti-social behavior. (At his trial there was testimony that the head injury he suffered a few months earlier when he fell could have caused this abnormality.)

After two months of treatment Huckaby was placed on medication to relieve the possible brain malfunction and released, it being found that he was no longer a menace to society. (The neighbor who testified that Huckaby had been a brutal disciplinarian also stated that upon his return from the state hospital “he was a different man”.) It was at this time that divorce proceedings were commenced, and thereafter law enforcement officers were informed of Huckaby’s sexual relationship with his daughters. Medical testimony at the preliminary hearing to determine whether Huckaby was competent to stand trial, and at trial, was unanimous that he should be given treatment pursuant to the Child Molester Act, Chapter 801, Florida Statutes (1973), or the Mentally Disordered Sex Offender Act, Chapter 917, Florida Statutes (1973).

There are four major legal issues before us: (1) whether Huckaby could legally be guilty of rape when his acts may also have constituted incest; (2) whether the jury should have been charged on the crime of incest as a lesser included offense; (3) whether the trial court abused its discretion by imposing a criminal penalty rather than ordering confinement for medical treatment pursuant to Chapter 917; and (4) whether the death penalty is appropriate under the facts of this case.

(1) Incest and rape. Huckaby has analyzed the history of incest statutes in Florida and the evolution of case law under them, and he argues that the kinship element of criminal incest is and has always been the determinant which bars criminal prosecution under rape, fornication, adultery and other like statutes, whether the conduct charged includes or does not include force. He argues, in effect, that the legislative and judicial policy regarding non-spousal, intra-family sexual intercourse has eliminated the customary prosecutorial discretion which exists when a course of conduct is punishable under more than one criminal statute. See Fayerweather v. State, 332 So.2d 21 (Fla.1976). His argument advances an interesting approach to statutory construction which would give each of the violent sex offense statutes an exclusive and independent area of operation, varying on the basis of such factors as force, consent, relationship of victim, and age. We cannot accept Huckaby’s assertions, however. Since 1908 this Court has at least implied that the crimes of rape and incest are not mutually exclusive, and that ' prosecutorial discretion exists when conduct would be criminal under both incest and other statutes. McGaskill v. State, 55 Fiar 117, 45 So. 843 (1908). Of course, the definitions and elements of these crimes have been altered over the years. Nonetheless, this Court has adhered to the multiple-crime, optional prosecution theory applicable to conduct which is incestuous. We reject Huckaby’s suggestion that we now should recede from this view.

(2) Lesser included offense. In Brown v. State, 206 So.2d 377 (Fla.1968), we discussed at length the rules to be followed by the trial courts of this state when instructing a jury on lesser included offenses. Since the crimes of rape and incest are independent of each other, the only arguable basis for giving an instruction on incest would be if this case fell into the so-called “category four” group of cases.

“(4) There should be an instruction on all lesser offenses which are covered by the accusatory pleading and supported by the evidence, even though the major crime charged could otherwise be established without proof of the lesser offense.”

This case does not come within this language because the indictment against Huck-aby here does not allege the critical element of the crime of incest — requisite consanguinity between the defendant and his victims.

(3) Penalty or confinement. Hucka-by asserts that the trial judge abused his discretion in refusing to commit him as a mentally disordered sex offender pursuant i to Chapter 917, Florida Statutes (1973). (The appellate courts of this state have rare- ’ ly been called upon to interpret this statute, and this Court has not been required to explain how the trial courts of this state are to apply it within the context of the death penalty statute, Section 921.141, Florida Statutes (1973). We do so now.

A “mentally disordered sex offender” is defined in Section 917.13 as “a person who is not insane but who has a mental disorder and is considered dangerous to others because of a propensity to commit sex offenses.” Insofar as it pertains to this case Section 917.14 provides that the trial court “may” suspend Huckaby’s sentence and certify him for a special hearing, if (i) there is probable cause to believe he falls within the statutory definition and (ii) his mental disorder has existed for at least the preceding four months. Both of those elements being present in this case, the trial judge had discretion to certify Huckaby if he so chose.

If at the special hearing it is determined that the person is a mentally disordered sex offender, Section 917.19 directs that the court “shall commit the defendant” for treatment. Thereafter reports on the defendant’s condition are made to the committing court at least annually, and upon receiving a recommendation for discharge from care from the state institution the court is required to hold a hearing to determine whether the defendant would be a menace to others. If it is found that the defendant is not, his discharge from treatment is ordered and the criminal proceedings then automatically recommence.

Huckaby asserts that the trial judge abused his discretion when he refused to invoke Chapter 917. The state points to Huckaby’s release from treatment prior to these criminal charges being lodged as evidence that Huckaby was no longer a menace to society and, therefore not within the statutory definition of “mentally disordered sex offender”. The circumstances of this case convince us that the trial judge’s denial of certification was not an abuse of discretion.

In his findings on which the death penalty sentence was predicated, the judge expressly found that Huckaby is presently “a danger and menace to society”. This finding, of course, was improper in the sentence phase of the trial judge’s responsibility. It suggests, however, that the trial judge could have exercised his discretion and granted Huckaby’s request for certification under Chapter 917. That he did not do so may reflect the judge’s acquaintance with the medical evidence on Huckaby’s first commitment and release. He may well have concluded that a re-certification so soon after discharge would serve no useful purpose. In any event, we have no basis on which to conclude that his denial was an abuse of discretion.

(4) Death Sentence. The trial judge here found the existence of three aggravating and no mitigating circumstances. One of the aggravating circumstances is not prescribed in the sentencing statute and must be rejected. His findings that Huckaby’s acts created a risk of serious bodily harm to many persons, and that they were heinous, atrocious and cruel, are supported by the record. As to the first, he apparently made sincere threats on the lives of his nine children and wife over the course of many years, and he in fact caused them bodily harm from beatings and other forms of wanton cruelty. (We note that these events all centered around his sexual aberrations, however.) As to the second, the record also bespeaks cruelty enough to his children to sustain the judge’s finding on that point.

The trial judge ignored every aspect of the medical testimony in this case when he found that no mitigating circumstances existed. There was almost total agreement on Huckaby’s mental illness and its controlling influence on him. Although the defense was unable to prove legal insanity, it amply showed that Huckaby’s mental illness was a motivating factor in the commission of the crimes for which he was convicted. Our review of the record shows that the capital felony involved in this case was committed while Huckaby was under the influence of extreme mental or emotional disturbance, and that while he may have comprehended the difference between right and wrong his capacity to appreciate the criminality of his conduct and to conform it to the law was substantially impaired. These findings constitute two mitigating circumstances which should have been weighed in determining his sentence. It is our view, moreover, that these mitigating circumstances outweigh the aggravating circumstances in this case although the circumstances on each side are equal in number. As we stated in State v. Dixon,

“It must be emphasized that the procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present.”

Our decision here is based on the causal relationship between the mitigating and aggravating circumstances. The heinous and atrocious manner in which this crime was perpetrated, and the harm to which the members of Huckaby’s family were exposed, were the direct consequence of his mental illness, so far as the record reveals.

For these reasons, the judgments of guilt entered by the circuit court as to all six counts are affirmed, and the life sentences imposed for five of Huckaby’s convictions are affirmed. The sentence of death is vacated, however, and this case is remanded to the circuit court with directions to enter a sentence of life imprisonment on the sixth count. For the reason expressed in Anderson v. State, 267 So.2d 8 (Fla.1972), it is not necessary to return Huckaby to the trial court for resentencing.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG, HATCHETT and ROBERTS (Retired), JJ., concur.

ENGLAND, J., concurs in part and dissents in part with an opinion.

ENGLAND, Justice,

concurring in part and dissenting in part.

I concur in all phrases of the Court’s decision except that relating to the non-utilization of Chapter 917.

Wherever there has appeared in the past an evident need and a presumptive basis to use the treatment facilities of the state for persons charged with or convicted of abnormal sexual behavior, we have held that the trial judges of this state should utilize the statutory procedures for that purpose. See Hobbs v. Cochran, 143 So.2d 481 (Fla.1962) (dealing with the predecessor of the present Chapter 917); Dorman v. State, 263 So.2d 207 (Fla.1973), later reinforced as to this point at 279 So.2d 854 (Fla.1973). And see Dean v. State, 265 So.2d 15 (Fla.1972), cert. denied, 410 U.S. 958, 93 S.Ct. 1426, 35 L.Ed.2d 692 (1973), finding no constitutional infirmity in using Chapter 917 after conviction for the same capital offense of which Huckaby was convicted- — rape. The clear import of those decisions is that, despite the permissive language of the statute, a trial judge has an affirmative duty to utilize the procedures provided in Chapter 917 if there are apparent indications that its provisions might be applicable in a given case. Since the criteria for an invocation of Chapter 917 were present in this case, I would hold that the trial judge abused his discretion in refusing to schedule a special hearing under Chapter 917.

Although it was not done in this case it seems to me preferable for trial judges to schedule a certification hearing under Chapter 917 before the sentencing trial in capital cases. Section 917.14(1) indicates that the court may either “adjourn the trial or suspend the sentence” for a certification hearing. Both the Legislature and this Court have recognized that “death is a unique punishment in its finality and its total rejection of the possibility of rehabilitation.” In order to limit that penalty to only those persons who have committed the most aggravated capital offenses, the Legislature in Section 921.141 has specifically listed the factors to be considered in sentencing. Two of the enumerated mitigating circumstances relate to the defendant’s mental health. The delicate system overlaid on any sentence of death would be seriously disrupted if the jury’s recommendation or the judge’s sentence were made without full knowledge regarding the defendant’s psychiatric status, including evidence that the defendant had been adjudged a mentally disordered sex offender, confined for his illness and certified back to the court as having been cured by a program of professional treatment. A delayed sentence proceeding under Section 921.141 thus serves both the purposes of Chapter 917 — treatment rather than confinement— and of the death penalty statute. It provides one more way we can be certain that “the trial court’s sentencing discretion is guided and channeled by a system that focuses on the circumstances of each individual homicide and individual defendant in deciding whether the death penalty is to be imposed.” Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913, 926 (1976).

      . The crime for which Huckaby has been convicted and sentenced is described in Section 794.01(1), Fla.Stat. (1973). His convictions on five other counts for the same or related crimes resulted in life sentences which ordinarily would be reviewable in the district court of appeals. Both Huckaby and the state urge us to review all six convictions and sentences, however. We agree to do so. All six convictions arose from the same jury trial, which was followed by one advisory sentence proceeding. We are required to review the entire record of both proceedings to sustain or reverse the one conviction and attendant death sentence. Obviously we will avoid significant additional judicial effort by accepting the appeal as to all six convictions and sentences.

      . Other issues raised on this appeal are either ; a facet of these four or are devoid of merit.

      . Huckaby does not suggest that the language of either the rape or incest statute expressly forbids an election between them by the state. cf. Wilson v. State, 50 Fla. 164, 39 So. 471 (1905).

      . At the time of Huckaby’s indictment the applicable statutes were Section 794.01(1), Fla. Stat. (1973), as to rape, and Section 741.22, Fla.Stat. (1973), as to incest. This latter statute was repealed by § 66', Ch. 74-383, Laws of Florida, but now appears in altered form as Section 826.04, Fla.Stat. (1975).

      . Huckaby cites several cases in which incest was charged for conduct over a course of years. He cites none in which either a rape or incest charge was held to have barred a charge on the other ground.

      . 206 So.2d at 384.

      . Although it has been argued that Huckaby should have been committed for treatment pursuant to the Child Molester Act, Chapter 801, Fla.Stat. (1973), that Act does not apply when the crime charged or proved is rape. Section 801.041, Fla.Stat. (1973).

      . This hearing is civil in nature. Section 917.-24, Fla.Stat. (1973).

      . Section 917.20, Fla.Stat. (1973).

      . See note 11 below.

      . The trial judge found that Huckaby had a propensity to commit rape, and therefore the very fact that he was alive would create risk of harm to many persons and menace society. This attempt to predict future conduct is without relation to any statutory aggravating circumstance, and must be stricken. Cooper v. State, 336 So.2d 1133 (Fla.1976).

      . 283 So.2d 1, 10 (Fla.1973).

      . Under 1974 legislative amendments it is no longer possible to adjourn a trial at any time in order to utilize Chapter 917. Only post-conviction proceedings are now authorized. Ch. 74-379, §§ 3, 4, Laws of Florida. This would not, however, prevent the special hearing between a conviction and the separate advisory hearing on sentencing.

      . State v. Dixon, 283 So.2d 1, 7 (Fla.1973).

      . Sections 921.141(6)(b) and (f), Fla.Stat. (1973).

      . In most cases this sequence will result in the sentencing hearing being held before a jury specially impaneled for that purpose, as now authorized by Section 921.141(1), Fla.Stat. (1975). See Messer v. State, 330 So.2d 137 (Fla.1976). Sentence review would be available here. Section 921.141(4); Fla.Stat. (1975). Review of the original conviction by the district courts of appeal would be immediate, of course, to avoid the possibility of reversal many years (depending on the length of treatment) after the case was prosecuted.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Ruben Levern WILLIAMS, Appellee.
    No. 49320.
    Supreme Court of Florida.
    Feb. 25, 1977.

      Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellant.
    William C. McLain, Asst. Public Defender, for appellee.
   ADKINS, Justice.

This cause is before us on direct appeal to review the order of the County' Court in and for Alachua County which passed on the constitutionality of Section 27.56, Florida Statutes. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellee was charged with resisting arrest without violence. To this charge he pled not guilty and received a trial by jury. By virtue of his indigency, appellee received the services of the public defender of the Eighth Judicial Circuit. Upon completion of his trial, appellee was found guilty as charged and placed on probation for one year.

A motion to assess attorney’s fees was filed. The trial court denied the motion and held Section 27.56, Florida Statutes, to be unconstitutional.

Section 27.56, Florida Statutes, reads as follows:

“(1) There is hereby created a lien, enforceable as hereinafter provided, upon all the property, both real and personal, of any person who is receiving or has received any assistance from any public defender of the state. Such assistance shall constitute a claim against the applicant and his estate, enforceable according to law in an amount to be determined by the court in which such assistance was rendered. Immediately after such assistance is rendered and upon determination of the value thereof by the court, a statement of claim showing the name and residence of the recipient shall be filed for record in the office of the clerk of the circuit court in the county where the recipient resides and in each county in which such recipient then owns or later acquires any property. Said liens shall be enforced on behalf of the state by the several public defenders, and shall be utilized to reimburse the state to defray the costs of the public defender system. The lien herein created shall be a continuing obligation, irrespective of any statute of limitations.
“(2)(a) In lieu of the procedure above described, the court is authorized to require that the recipient of the public defender’s services execute a lien upon his real or personal property, presently-owned or after-acquired, as security for the debt created hereby for the value of the services rendered or to be rendered by the public defender. Such lien shall be recorded by the public defender in the public records of the county at no charge by the clerk of the circuit court and shall be enforceable in the same manner as mortgages.
“(b) The board of county commissioners of the county wherein the recipient is tried is authorized to enforce, reduce to judgment, satisfy, compromise, settle, subordinate, release, or otherwise dispose of any debt or lien hereby imposed.
“(c) The public defender is authorized to contract with a collection agency for collection of such debts or liens, provided the fee for such collection shall be on a contingent basis not to exceed 50 percent of the recovery. However, no fee shall be paid to any collection agency by reason of foreclosure proceedings against real property or from the proceeds from the sale or other disposition of real property.
“(d) No lien thus created shall be foreclosed upon the homestead of such recipient.
“(3) The court having jurisdiction of the defendant-recipient, may, at such stage of the proceedings as the court may deem appropriate, determine the value of the services of the public defender, at which time the defendant, after adequate notice thereof, shall have opportunity to be heard and offer objection and to be represented by counsel, with due opportunity to exercise and be accorded the procedures and rights provided in the laws and court rules pertaining to civil cases at law.” (Emphasis supplied.)

In finding the statute to be unconstitutional, the lower court concluded that (1) it provides the judgment debtor only the homestead exemption and not the array of other debtor exemptions such as the constitutional exemption of personalty, and the statutory exemptions of wages and disability benefits, and (2) it removes the lien created thereby from the operation of the statute of limitations creating a perpetual lien against the defendant’s real and personal property and estate.

A Kansas recoupment statute which denied certain exemptions to judgment debtors which were allowed to other debtors was struck down by the United States Supreme Court as a violation of the Equal Protection Clause. James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed,2d 600 (1971). An Oregon recoupment statute, which did not suffer from the infirmities of the Kansas statute, was held to be constitutional. Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974).

The lower court sub judice reasoned that, since only the homestead exemption was specifically mentioned in the Florida Statutes, the remaining exemptions allowed other debtors were not available to the judgment debtors under this statute. We disagree with this interpretation of the statute. A careful reading of the statute discloses that the lien created by its operation is to be “enforceable according to law.” It is a well established rule of construction that the intent of the legislature as gleaned from the statute is the law. Small v. Sun Oil Co., 222 So.2d 196 (Fla.1969). It is apparent that the intent of the Legislature regarding the statute herein is to provide a method of recoupment which is within the guidelines set forth by both the 'United States and Florida Constitutions. Therefore, in keeping with the established maxim of statutory construction that courts have the judicial obligation to sustain legislative enactments when possible, North Port Bank v. State Dep’t of Revenue, 313 So.2d 683 (Fla.1975); State v. Aiuppa, 298 So.2d 391 (Fla.1974), we find that judgment debtors are afforded all exemptions which other debtors receive and, therefore, that the statute does not run afoul of the rule established in James v. Strange, supra.

The second issue is whether the removal of the provisions of the statute of limitations from the lien creates a situation whereby the judgment debtor is held to a different standard of indebtedness than the ordinary debtor. This on its face is a violation of the Equal Protection Clause in that similarly situated persons, i. e., debtors, are not treated in a similar fashion since only the judgment debtors under Section 27.56, Florida Statutes, are to be perpetually liable for the debts incurred under this statute. This singular constitutional violation is not, however, sufficient to make invalid the entire content of the statute.

This Court has long held that where certain clauses, provisions, or sections of a stautory enactment are in violation of constitutional mandates, it does not necessarily follow that the whole enactment should fail. Therefore, the Court may sever the unconstitutional provision and uphold the remainder if that which is left is complete in itself, sensible, and capable of being executed, whether or not the enactment contains a severability clause. State ex rel. Boyd v. Deal, 24 Fla. 293, 4 So. 899 (1888); Gwynn v. Hardee, 92 Fla. 543, 110 So. 343 (1926); Louis K. Liggett Co. v. Lee, 109 Fla. 477, 147 So. 463, 149 So. 8 (1933); City of Daytona Beach v. Harvey, 48 So.2d 924 (Fla.1950); Youngblood v. Darby, 58 So.2d 315 (Fla.1952); Harris v. Bryan, 89 So.2d 601 (Fla.1956); Cramp v. Board of Public Instruction of Orange County, 137 So.2d 828 (Fla.1962); Davis v. State, 146 So.2d 892 (Fla.1962); Musleh v. Marion County, 200 So.2d 168 (Fla.1967); Small v. Sun Oil Company, 222 So.2d 196 (Fla.1969).

We therefore strike as being unconstitutional the last complete sentence of subsection (1) of Section 27.56, Florida Statutes, which reads as follows:

“The lien herein created shall be a continuing obligation, irrespective of any statute of limitations.”

The legislative intent is thereby accomplished.

In summary, we hold that (1) judgment debtors under Section 27.56, Florida Statutes, are allowed the same exemptions as other debtors, and (2) that the perpetual lien created by the statute is unconstitutional. Therefore, by deleting the last sentence of subsection (1) (that portion of the statute which alone creates the constitutional invalidity,) the remainder of Section 27.56, Florida Statutes, is hereby held constitutionally valid.

The order of the trial court is reversed and the cause is remanded for further proceedings in accordance with these views.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.


author: BY THE COURT.

text:
    Richard Alan KATZMAN, Appellant, v. STATE of Florida, Appellee.
    No. 49599.
    Supreme Court of Florida.
    Feb. 25, 1977.
    Maurice Rosen, North Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Thomas A. Beenck, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Affirmed. Levitz v. State, 339 So.2d 655 (Fla.1976).

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, HATCHETT and KARL, JJ., concur.

SUNDBERG, J., dissents.


text:
    SARASOTA COUNTY, Florida, et al., Petitioners, v. TOWN OF LONGBOAT KEY, Florida, et al., Respondents.
    No. 50508.
    Supreme Court of Florida.
    Feb. 25, 1977.
    Talbot D’Alemberte, of Steel, Hector & Davis, Miami, and Richard E. Nelson and Richard L. Smith, of Nelson, Hesse, Cyril & Weber, Sarasota, for petitioners.
    John R. Wood and I. W. Whitesell, Jr., of Wood, Whitesell & Karp, Sarasota, for Town of Longboat Key.
    William C. Strode and William M. Hereford, of Strode, Hereford & Taylor, Sarasota, for City of Sarasota.
    Charles F. Wheeler of Korp & Wheeler, Venice, for City of Venice.
    Frank B. Byron, Port Charlotte, for City of North Port.
   PER CURIAM.

The Petition for Writ of Certiorari is hereby denied.

OVERTON, C. J., and BOYD, SUND-BERG and HATCHETT, JJ., concur.

ENGLAND, J., concurs specially with an opinion.

ADKINS and KARL, JJ., dissent.

ENGLAND, Justice,

concurring specially.

Respondents have filed a motion to strike the petition for a writ of certiorari which was filed in this case by Sarasota County. I would grant that motion.

The petition, filed here on November 3, 1976, sought review of an order entered by the circuit court for the 12th Judicial Circuit on October 12, 1976 which had temporarily enjoined a referendum election scheduled to be held on November 2, 1976. Respondents suggest that the issues presented by the petition are moot inasmuch as the election date has passed and the referendum issues did not appear on the ballot. I agree.

Sarasota County Emergency Ordinance No. 76-76 expressly declared an emergency to exist which required “the enactment of this Emergency Ordinance [to] enable the Charter amendments proposed herein to be voted upon at the same time as the 1976 general election. . . . ” The ordinance then specified the places, times and manner of conducting a referendum to be held throughout the county on November 2,1976 on five specific propositions.

On October 12 the circuit court acted at respondent’s request to enjoin the proposed referendum, stating that the county and its election supervisor were restrained

“from the holding, conducting or proceeding further with the preparation of the special referendum election on November 2, 1976. ...”

It is apparent that this order was exclusively directed to an election which did not take place. County officials, for whatever reasons, chose to obey the circuit court’s order rather than to have it immediately reviewed by an appellate tribunal. They now suggest that the election of November 2 may have passed, but the constitutional issues on which the circuit court ruled involve matters of continuing importance to the public. For this reason, they urge us to resolve the issues rather than declare them moot.

I agree with petitioner that the legal issues underlying the emergency ordinance (none of which require discussion here) are important, but I disagree with the suggestion that they are not now moot. There is no possibility that the propositions framed in the emergency ordinance will be submitted to popular vote on the date prescribed, and since the ordinance was directed at an election date now passed there is no basis for us to assume that the same propositions will ever be submitted to the county’s voters at any future date. Additionally, the order brought to us for review was narrowly drawn to restrain action preceding the election date which has now passed. For these reasons the cases relied upon by petitioner are distinguishable.

The issues presented by respondents to the trial court as a result of petitioner’s ordinance are plainly moot, and I would grant respondents’ motion to strike the petition for a writ of certiorari.'

      . Petitioner’s brief states that an election will be held in Sarasota County on April 5, 1977. There is nothing in the record of this proceeding, however, to indicate that fact or to show what matters will be subject to vote at that time. Nothing in Emergency Ordinance 76-76 indicates a deferred voting date in the event the five propositions did not appear on the November 2 ballot, as eventually occurred. No other ordinance has been brought to our attention rescheduling the identical propositions.

      . In each of the cited cases there was an immediate public need for a final judicial decision. Pitt v. Belote, 108 Fla. 292, 146 So. 380 (1933), involved a similar situation except that no injunction issued and an election was held. This Court proceeded to determine the constitutional issues then before it rather than require the parties to file a second suit arguing the same points. In Walker v. Pendarvis, 132 So.2d 186 (Fla.1961), decision of issues possibly moot was found necessary because public officials otherwise could have become liable for receiving unauthorized compensation. Similarly, in Ervin v. Capital Weekly Post, Inc., 97 So.2d 464 (Fla. 1957), the validity of future elections was at stake. This case is governed by DeHoff v. Imeson, 153 Fla. 553, 15 So.2d 258 (1943), where there were no practical benefits to be obtained by review in this Court.


author: MILLS, Judge.

text:
    Jerry Lee FRAZIER, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-286.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1976.
    Rehearing Denied March 31, 1977.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard L. Wilson, Asst. Atty. Gen., for appellee.
   ON RECONSIDERATION

MILLS, Judge.

By its opinion of 20 August 1976, 336 So.2d 435, the Court remanded this case to the trial court for the purpose of inquiring into the circumstances surrounding the State’s failure to furnish the name of a rebuttal witness in response to Frazier’s discovery demand, and for the purpose of determining whether the noncompliance of the State with this rule of procedure resulted in prejudice to Frazier.

The trial court has properly inquired into the circumstances and has entered an order that no prejudice resulted to Frazier. We have reviewed the record provided us by the trial court and agree.

Accordingly, the judgment and sentence are affirmed.

BOYER, Chief Judge, and McCORD, J., concur.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    In re ESTATE of Charles A. BAIRD, Deceased. Mary B. HICKS, Appellant, v. Arthur SCHWAB, Administrator CTA of Estate of Charles A. Baird, Deceased, Appellee.
    No. 75-2059.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1977.
    Rehearing Denied March 29, 1977.

      William L. Ranaghan of Sullivan, Cochran, Ranaghan, Bailey & Gleason, P. A., Pompano Beach, for appellant-Mary B. Hicks.
    Peter A. Portley of Zimmerman, Haywood & Portley, Pompano Beach, for appel-lee.
   SCHWARTZ, ALAN R., Associate Judge.

The decedent's will, which had been in his possession for almost three years, could not be found after his death, thus giving rise to the so-called presumption that he had destroyed the will with the intention of revoking it. The trial judge nonetheless denied a petition, brought by the decedent’s heir-at-law, to revoke the probate of an executed copy of the will, thereby determining that the presumption had been successfully overcome. We reverse upon a holding that the record contains no substantial evidence sufficient to justify this finding.

The facts are relatively simple. Charles A. Baird executed his will in 1964; it provided that his estate would go to his wife or, should she predecease him, to his wife’s sister Charlotte Barricklow, who is the real appellee in interest in this proceeding. Mr. Baird’s wife died in 1970. On September 23, 1971, he executed a codicil to the 1964 will which simply provided for a legally qualifiable personal representative; in all other respects, the codicil reaffirmed the 1964 will. Both the will and the codicil were given to Baird by his attorney after he had prepared the codicil for him. Baird never remarried and lived alone the entire period between that time and his death, at age 84, on August 13, 1974. After his death the codicil was found in the decedent’s apartment in a box of “business papers” which was described as “fairly well in order”, but the will itself was not found, either then or since.

If this were all that the evidence showed, even the appellee concedes that law would require a finding, upon an application of the “presumption” to which we have referred, that Mr. Baird had destroyed the original will for the purpose of revoking it. Schaefer v. Voyle, 88 Fla. 170, 102 So. 7 (1924); Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940), In re Evers’ Estate, 160 Fla. 225, 34 So.2d 561 (1948). While, as the quotation marks we have placed around the word “presumption” are intended to indicate, its precise nature is somewhat uncertain, we are convinced from a review of all the Florida cases on the subject that a showing of a lost will which had been in the possession of the decedent, as in this case, gives rise to more than the mere permissible inference of revocation which was referred to in Thomas v. Thompson, 114 Fla. 833, 155 So. 321 (1934). We think that, as in the case of the “presumption” of undue influence treated by the Supreme Court in In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), such a showing requires a finding of revocation, unless the proponent of the lost will comes forward with evidence, of a competent and substantial nature, that would justify a finding that the will had not been revoked. In re Evers’ Estate, supra; In re Washington’s Estate, 56 So.2d 545 (Fla.1952).

The evidence relied upon by the ap-pellee to carry this burden consisted of proof that (a) at the time Mr. Baird’s papers were discovered shortly after his death, his apartment (though not the box with his documents) was in a state of disarray and had been open and accessible to other unknown persons; (b) almost up to the time of his death, Mr. Baird expressed his continued fondness and warm feelings for Mrs. Bar-ricklow and her son; and (c) towards the end of his life, the decedent was “getting . forgetful” and was “decidedly so” on the day of his death. We hold that none of this evidence was sufficient to “rebut the presumption” and support the finding of non-revocation:

(a) While it is established that the fact that persons with adverse interest in destroying a will have had an opportunity to do so may serve to rebut the presumption, there was simply no such evidence in this case; the only such person, the present appellant, was hundreds of miles away at all relevant times. See Board of Trustees of Methodist Church v. Welpton, 284 S.W.2d 580, 583 (Mo.1955). Cases such as In re Washington’s Estate, supra, and those collected in Annotation, Lost Will-Proving Nonrevocation, 3 A.L.R.2d 943, 976-979 are therefore not on point. The fact that persons with no interest whatsoever in secreting or destroying Mr. Baird’s will might possibly have done so obviously is no evidence whatever that they did.

(b) The rule that statements of the decedent cannot alone serve to rebut the presumption, e. g. Loy v. Loy, 246 S.W.2d 578 (Ky.1952); In re Jensen's Estate, 141 N.J.Eq. 222, 56 A.2d 573 (1947), aff'd., 142 N.J.Eq. 222, 59 A.2d 624 (1948), cases collected Annot., supra, at 3 A.L.R.2d 969-971 finds particular application in this case, in which Mr. Baird was shown only to have expressed continued affection for the beneficiary of the will and did not, as in In re Washington’s Estate, supra, and In re Estate of Carlton, Fla., 276 So.2d 832, 833 state his “desire to leave his estate” [emphasis supplied] to Mrs. Barricklow. Mr. Baird’s statements that he liked her provide no proof that he did not revoke the will which provided for her.

(c) Finally, the evidence as to the decedent’s mental condition before his death was woefully insufficient to establish that he was “insane” during the period in which he might have revoked his will. This showing therefore likewise could not form a proper basis for the determination below. Compare In re Niernsee’s Estate, 147 Fla. 388, 2 So.2d 737 (1941); cases collected, Annot., supra, at 3 A.L.R.2d 985-986.

In sum, the proponent of the will presented no more than the fabled twins of speculation and conjecture to establish that Mr. Baird might not have revoked his will. Cf. In re Estate of Kuhn, 286 So.2d 276 (3 DCA Fla.1973). The trial judge was in error in concluding that the evidence was sufficient to overcome the presumption, raised by the law, that he did. The final order below is reversed and the cause remanded with directions to grant the petition for revocation of probate.

Reversed and remanded.

ALDERMAN, J., and BERANEK, JOHN R., Associate Judge, concur.

      . If this occurs, the “presumption,” as such, would drop out of the case, although the facts which give rise to it would still permit, though not require, the trier of fact to conclude that the will had been revoked. See Thomas v. Thompson, supra; cf. In re Estate of Carpenter, supra, at 253 So.2d 705.

      . The mere fact that these expressions are coupled with other insufficient evidence of nonre-vocation does not make the statements thereby sufficient to rebut the presumption. Board of Trustees of Methodist Church v. Welpton, supra.

      .The Carlton case, heavily relied upon by the appellee, is otherwise not on point. Its essential holding does not concern the showing necessary to rebut the presumption but is rather to the effect that the will in question there was not really “lost” at all, but was contained in the “mush” found in the decedent’s waterlogged safe after his death. Silvers v. Estate of Silvers, 274 So.2d 20 (3 DCA Fla. 1973) is to like effect.


author: NATHAN, Judge.

text:
    WARN INDUSTRIES et al., Appellants, v. Raymond GEIST et al., Appellees.
    Nos. 75-740, 75-751, 75-939 and 75-940.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1977.
    Rehearing Denied March 2, 1977.

      Talburt, Kubicki & Bradley, Jeanne Hey-ward, Miami, for appellants.
    Preddy, Haddad, Kutner & Hardy, Virgin & Whittle, Podhurst, Orseck & Parks, Mar-low, Mitzel & Ortmayer, Miami, for appel-lees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is the consolidation of two appeals and two interlocutory appeals in a product liability action, namely: an interlocutory appeal by defendants Warn Industries, Warn-Belleview, Inc., and St. Paul Insurance Company, from a final judgment in favor of the plaintiffs, Raymond and Lorna Geist; an appeal by those defendants from an amendment to the final judgment; an interlocutory appeal by defendant St. Paul from an order denying its motion for entry of an order for contribution from defendant Four Wheel Parts Wholesalers based on the pro rata share that the jury, by its verdict, attributed to each defendant; and an interlocutory appeal by defendants Warn Industries and Warn-Belleview from an order denying their motion for entry of an order allowing contribution from defendant Four Wheel Parts Wholesalers.

The record in this case is lengthy. Suffice it to say, this action stems from an accident occurring on April 16,1973, wherein plaintiff Raymond Geist suffered the loss of a thumb and two fingers as he was attempting to prepare a disabled vehicle for towing by use of a winch mechanism attached to his service station truck. Geist and his wife, Lorna, sued the manufacturer of the winch, Warn Industries and Warn-Belleview, Inc., (hereinafter referred to collectively as Warn), and Warn’s insurer, St. Paul Insurance Company, for negligent design and manufacture and breach of warranty. Geist also sued his employee, Wheeler, who was operating the controls of the winch, and his insurer, as well as the distributors of the winch, Gulf Oil Corporation and Four Wheel Parts Wholesalers, for breach of warranty and negligence.

At the conclusion of the plaintiff’s case, Gulf Oil and its insurer, and Wheeler and his insurer were voluntarily dismissed from the law suit. The jury returned a verdict in favor of the plaintiffs, finding that defendants Warn and Four Wheel Parts were guilty of negligence and of breaching their warranties, causing plaintiff’s injuries; and that plaintiff was 15% negligent, Warn was 60% negligent and Four Wheel Parts was 25% negligent. Total damages were assessed for Raymond Geist in the amount of $365,000, and for Lorna Geist in the amount of $35,000. No question is raised on appeal as to the amount of the verdicts. Judgment was entered for Lorna Geist in the sum of $29,750, and for Raymond Geist in the sum of $310,250, thus reflecting the 15% comparative negligence. Subsequently, an amended final judgment was entered because of a $10,000 settlement with Wheeler and his insurer. Warn and St. Paul took two appeals, one from the judgment and the other from the amended judgment.

As their first point on appeal, defendants Warn and St. Paul contend that the court erred in allowing plaintiffs, over defendants’ objections, to read into evidence, the following interrogatory and answer regarding a prior accident involving a Warn winch:

“If you have within the past five years received any complaint of injury or occurrence similar to those allegedly experienced by the plaintiff, please state for each such complaint its date.
Answer: December 18, 1971.”

This point is not well taken.

As a general rule, evidence of the occurrence or non-occurrence of a prior accident is admissible where it pertains to the use of the same type of appliance or equipment under substantially similar conditions. Railway Express Agency, Inc., v. Fulmer, 227 So.2d 870, 873 (Fla.1969). Such evidence is admissible, if the accident is not too remote in time, for the purpose of showing the dangerous character of the instrumentality and defendant’s knowledge thereof. See Chambers v. Loftin, 67 So.2d 220, 222 (Fla.1953). Also see Friddle v. Seaboard Coast Line Railroad Company, 306 So.2d 97 (Fla.1974), wherein the Florida Supreme Court expresses agreement with the dissenting opinion of Judge Mager in Seaboard Coast Line Railroad Company v. Friddle, 290 So.2d 85, 87-91 (Fla.4th DCA 1974), citing 70 A.L.R.2d 171, 172, as follows:

* * * * * *
“. . . However, it has usually been held that only substantial similarity of conditions is required, and there is perhaps evident a trend—probably part of a general trend toward the more liberal admission of evidence—toward treating the question of sufficiency of similarity of conditions as primarily a matter for the trial court’s discretion, and to freely admit the evidence of the prior accident together with evidence of variations in conditions, which is treated as going to weight rather than admissibility.”
* * * * * *

In the instant case, we find that the trial court did not abuse its discretion in permitting the introduction into evidence of the reference to the prior accident where it was shown to have been a reasonably similar occurrence under similar circumstances.

The appellants’ next point is that the court erred in denying a motion for directed verdict and in entering final judgment in favor of the plaintiffs where the verdict was against the manifest weight of the evidence, and where the evidence established that plaintiffs own actions were the proximate cause of the accident.

On a motion for directed verdict, the evidence and reasonable inferences to be drawn therefrom are viewed in a light most favorable to the party moved against. Ramsey v. Ivey, 184 So.2d 499 (Fla.4th DCA 1966). On appeal to this court, all conflicts in the evidence and reasonable inferences therefrom are to be resolved in favor of the verdict. Florida East Coast Railway Company v. Morgan, 213 So.2d 632 (Fla.3rd DCA 1968). The record in this case contains ample substantial evidence from which the jury could find as it did.

Appellants Warn and St. Paul further contend that the trial court erred in refusing to grant their motion for new trial due to the failure of counsel for the plaintiffs and counsel for Four Wheel Parts to reveal the existence of a Mary Carter agreement between those parties. The record fails to reflect that there was a Mary Carter agreement entered into by those parties. Moreover, the trial judge made specific inquiry of all counsel as to whether such an agreement existed, and upon being advised “categorically” that there was none, denied the motion for new trial on these grounds. No error has been demonstrated on this point or on any other point raised by Warn and St. Paul in their appeals from the judgment and the amended judgment. Therefore, both are affirmed.

On interlocutory appeal from an order dated May 15, 1975, denying a motion for entry of an order for contribution from defendant Four Wheel Parts, St. Paul contends that the trial court erred in entering such order, citing as authority, Section 768.-31, Florida Statutes, and Lincenberg v. Issen, 318 So.2d 386 (Fla.1975), both of which provide for contribution. We find that the trial court did not err in ruling as it did because on the date it entered the order, May 15, 1975, the statute had not become effective, and the Lincenberg case had not yet been decided. We are compelled, however, to reverse the order even though it was not improper when entered. As provided in subsection 7 of Section 768.31, supra, the Uniform Contribution Among Tort-feasors Act, applies to “all causes of action pending on June 12, 1975, wherein the rights of contribution among joint tort-feasors is involved . . .” The record demonstrates that this interlocutory appeal, which is an action involving the rights of contribution among joint tortfeasors, was pending on that date. Therefore, we hold that St. Paul is entitled to contribution.

Finally, as to the interlocutory appeal filed by Warn Industries and Warn-Belle-view, we hold that Warn Industries and Warn-Belleview are entitled to contribution.

The final judgment and amended final judgment are affirmed. The order denying St. Paul’s motion for contribution is reversed and remanded to the trial court for further proceedings not inconsistent with this opinion.

      . Under Florida law, a Mary Carter agreement occurs where the plaintiff agrees with one or more of several defendants to limit the liability of those defendants to a stated sum on certain contingencies, and the defendant undertakes payment of an agreed sum to the plaintiff if a defendant’s verdict is rendered or if the verdict which is rendered for the plaintiff is less than a stated sum. Sometimes, if the verdict is in excess of an agreed sum, the plaintiff agrees not to execute on the judgment for any amount against that defendant entering into the Mary Carter agreement. The key feature is an agreement that plaintiff will recover a minimum sum from the agreeing defendant. Booth v. Mary Carter Paint Company, 202 So.2d 8 (Fla.2d DCA 1967). It also involves a motive for cooperation between parties to the agreement which should be disclosed to the jury. Ward v. Ochoa, 284 So.2d 385 (Fla.1973). See Maule Industries, Inc., v. Rountree, 284 So.2d 389 (Fla.1973); Imperial Elevator Company, Inc., v. Cohen, 311 So.2d 732 (Fla.3rd DCA 1975).

      . Section 768.31, Florida Statutes, became effective on June 12, 1975, and Lincenberg v. Issen was filed by the Florida Supreme Court on July 30, 1975.


text:
    NEW HAMPSHIRE INSURANCE COMPANY, a Foreign Corporation, and Superior Dairies, Inc., a corporation, Appellants (Defendants and Third-Party Plaintiffs), v. John PETRIK and Claudine Petrik, husband and wife, Appellees (Plaintiffs), and David Petrik, Appellee (Third-Party Defendant).
    No. DD-25.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1977.
    Carle Felton, Jr., Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellants.
    Robert C. Gobelman, John R. Saalfield, Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.
   MILLS, Judge.

By interlocutory appeal, New Hampshire Insurance Company (New Hampshire) and Superior Dairies, Inc. (Superior) seek review of an order dismissing their third party complaint without leave to amend but without prejudice to assert the same cause of action (contribution) in a separate suit. This is not an interlocutory appeal, Fla.App. Rule 4.2a, but will be treated as a full appeal because the order appealed is final as to the third party plaintiffs and third party defendant.

The sole issue raised on this appeal is whether the court must dismiss as a matter of law a third party action for contribution brought by the defendant against a third party not named by the plaintiff as a party defendant.

John and Claudine Petrik, husband and wife, brought suit against Superior and its insuror, New Hampshire, for damages arising out of an accident which they alleged was caused by the negligence of Superior. Superior and New Hampshire filed a third party action against David Petrik who was driving the vehicle in which the plaintiffs were passengers at the time of the accident, seeking contribution pursuant to Section 768.31, Florida Statutes (1975). The court dismissed the third party complaint stating:

“It states a cause of action for contribution among joint tortfeasors under Section 768.31, F.S. Section 768.31(4)(d), F.S., prevents the use of third party practice to achieve that contribution, despite Nationwide Mutual Insurance Co. v. Fouts, 323 So.2d 593 (D.C.A. 2, Fla., 1975), which apparently did not take subsection (4)(d) into consideration.”

This appeal involves the interpretation of certain sections of the Uniform Contribution Among Tortfeasors Act and its relationship to Fla.R.Civ.P. 1.180, the third party practice rule.

Rule 1.180(a) states in part:

“(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defendant as a third party plaintiff may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. . . .”

The pertinent sections of the Uniform Contribution Among Tortfeasors Act, Section 768.31, Florida Statutes (1975), state:

Section 768.31(2)(a) — “Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.”
Section 768.31(2)(b) — “The right of contribution exists only in favor of a tort-feasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share . . ..”
Section 768.31(4)(a) — “Whether or not judgment has been entered in an action against two or more tortfeasors for the same injury or wrongful death, contribution may be enforced by separate action.” Section 768.31(4)(d) — “If there is no judgment for the injury or wrongful death against the tortfeasor seeking contribution, his right of contribution is barred unless he has either:
1. Discharged by payment the common liability within the statute of limitations period applicable to claimant’s right of action against him and has commenced his action for contribution within 1 year after payment, or
2. Agreed, while action is pending against him, to discharge the common liability and has within 1 year after the agreement paid the liability and commenced his action for contribution.”

The Second District Court of Appeal dealt with the same question in Nationwide Mutual Insurance Company v. Fouts, 323 So.2d 593 (Fla.2d DCA 1975). In that case, the court stated:

Fla. Stat. § 768.31 (1975) does not specifically provide for the enforcement of contribution by way of third party practice. The commissioner’s comment to the Uniform Act reflects that the drafters of the model act intended to leave this to the established procedure in the several states. Uniform Contributions Among Tortfeasors Act (U.L.A.) § 3. The Florida rule on third party practice clearly contemplates the procedure of a defendant filing a third party complaint against a person not a party to the action ‘who is or may be liable to him for all or part of the claim’ against him even though the judgment has not yet been entered. Rule 1.180, RCP; See Mims Crane Service, Inc. v. Insley Mfg. Corp., Fla.App.2d, 1969, 226 So.2d 836.”

In Florida Power Corporation v. Taylor, 332 So.2d 687 (Fla.2d DCA 1976), the Second District Court of Appeal reinstated the defendant’s third party action for contribution against a tortfeasor not sued by the plaintiff.

Section 768.31(4)(a) does not state that contribution must be enforced by separate action. It merely provides an alternative enforcement of contribution by a method other than third party practice established by the Florida Rules of Civil Procedure. Further, the method of enforcing contribution is clearly procedural in nature. Article V, Section 2 of the Florida Constitution provides that:

“The supreme court shall adopt rules for the practice and procedure in all courts

Since the Florida Supreme Court has given its approval to third party practice, the absence of any provision in the contribution act relating to third party practice will not be fatal to the defendants’ third party complaint for contribution in the instant case.

The Florida Contribution Act traces the Uniform Contribution Among Tortfeasors Act and, as recognized in Nationwide Mutual Insurance Company v. Fouts, the commissioners’ comment to the uniform act specifically states that the drafters of the model act intended to leave enforcement of contribution, whether by third party action or separate action, to the states which adopt the act. Thus, it is again recognized that the act itself is not intended to limit the procedure for its enforcement.

Other states which have adopted the Uniform Contribution Among Tortfeasors Act have found that the claim for contribution made by a defendant against a party not made a party defendant to the action brought by the plaintiff may be brought by a third party action in the original lawsuit. In Markey v. Skog, 129 N.J.Super. 192, 322 A.2d 513 (1974), the New Jersey Supreme Court stated:

“The assertion by codefendants in a negligence action of the right of contribution inter sese and the right of a defendant to implead a joint tortfeasor by third-party complaint before plaintiff’s cause of action has been reduced to a judgment are merely devices of procedural convenience afforded by the rules of practice. See R. 4:7-5 and R. 4:8-1 (New Jersey Practice). Thus, although a defendant is not necessarily bound to proceed against a joint tortfeasor in the same action in which the plaintiff seeks to establish his (defendant’s) liability, he ordinarily will, nevertheless, do so because a single action is the most orderly and logical manner in which proof of common liability can be established — and it is, of course, common liability which is the substantive basis of the right of contribution.”

See also: Kapp v. Bob Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962); McMichael v. Delaware Coach Co., 9 Terry 529,107 A.2d 895 (1954); Hassett v. Modern Maid Packers, Inc., 23 F.R.D. 661 (D.Md.1959); Eck v. Mocalkins, 43 Mass.App.Dec. 195 (1969); Dambro v. Union County Park Commission, 130 N.J.Super. 450, 327 A.2d 466 (1974); Beal v. Southern Union Gas Co., 66 N.M. 424, 349 P.2d 337 (1960); Wilson v. Bob Robinson’s Auto Service, Inc., 20 N.C. App. 47, 200 S.E.2d 393 (1973), and Marcus v. Marcoux, 41 F.R.D. 332 (D.R.I.1967).

Thus, it has been widely recognized by the other states which have adopted the Uniform Contribution Among Tortfeasors Act that an action may be brought for contribution by a defendant against a tort-feasor not named as a party defendant by the plaintiff by a third party complaint filed in the plaintiff’s action. The logic is recognized that to allow such a procedure efficiently conserves the court’s time, effort, expense, and provides consistency of result wherein the action which establishes the plaintiff’s right to recovery also establishes against whom that recovery should be made. The same jury that “understands” the plaintiff’s case should also be permitted to relate why it found in favor of the plaintiffs by naming the defendants against whom recovery should be made. If there is no recovery for the plaintiff, there can be no right of contribution. In addition, the contribution act provides:

“This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it.”

The Florida Uniform Contribution Among Tortfeasors Act does not prohibit the third party practice recognized by the Supreme Court in the Florida Rules of Civil Procedure. Since the establishment of procedure is peculiarly a judicial function and because of the implicit logic that the same jury which assesses recovery for the plaintiff should also assess against whom such recovery is made, the third party action for contribution against a party not made a defendant by the plaintiff is not prohibited as a matter of law as found by the trial court.

The order appealed is reversed and this case is remanded for further proceedings consistent with the views expressed herein.

BOYER, C. J., and SMITH, J., concur.


author: BOARDMAN, Chief Judge.

text:
    Masami SORANAKA and Janine Soranaka, his wife, Appellants, v. Robert J. COOK and Cheryl A. Cook, his wife, Appellees.
    No. 76-1212.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 1977.
    J. Michael Shea, Tampa, for appellants.
    No appearance for appellees.
   BOARDMAN, Chief Judge.

Appellees/plaintiffs filed suit and prayed for damages and a mandatory injunction to enforce a restrictive covenant on real property in Hillsborough County, Florida. The restrictive covenant provided that:

No chain link fence shall be erected on any lot between the front building line and the street.

Appellants/defendants answered and asserted two affirmative defenses:

1. That said alleged restrictive covenants is an unreasonable, arbitrary, and capricious restriction on Defendants’ free and enjoyable use of their real property. 2. That this action is a violation of Defendants’ civil rights and equal protection under the law in that said alleged covenant is being arbitrarily evoked against Defendants while there are many others with similar fences who are not being litigated against; more specifically, 8347, 8312, 8310 and 8301 Garrison Circle, 8346, 8310 Gatewood Circle, and 8338 Drycreek Drive.

After hearing the trial court ordered both defenses stricken for failure to state a legal defense and granted appellants

ten (10) days within which to file amended affirmative defenses providing, however, that Defendants may not again raise the defense that the action is in violation of Defendants’ Civil Rights based on allegations of ethnic discrimination, but rather, may only raise the defense, at Defendants’ discretion, that similar fences erected in the neighborhood demonstrate a total disregard by the occupants of the subdivision that the covenants have become null and their validity ineffective.

We hold that appellants’ first affirmative defense does state a legal defense and should not have been stricken. Since this court has held that it will not enforce a covenant unless “the restraint is within reasonable bounds” appellants should be afforded an opportunity to plead and prove that the covenant at issue here is not a reasonable restriction on the use of their property. Hagan v. Sabal Palms, Inc., 186 So.2d 302, 309 (Fla. 2d DCA 1966). The question whether this defense includes merely conclusionary or immaterial statements is not before us.

The fact that appellees have not brought suit against other persons who are in violation of the restrictive covenant does not constitute a defense at law to appellants’ violation of the covenant. See City of Leesburg v. Knight, 164 So.2d 547 (Fla. 2d DCA 1964). See also Telophase Society of Fla., Inc. v. State Board of Funeral Directors & Embalmers, 308 So.2d 606 (Fla. 2d

DCA 1975). The trial court’s ruling that appellants’ second affirmative defense does not state a legal defense was correct, and it was properly stricken. Nevertheless since appellees are seeking equitable relief appellants are permitted to present in their pleadings any matter which is relevant or material to the equities. Petersohn v. Keech, Fla., 39 So.2d 714 (1949); Horne v. Sewell, 118 So.2d 643 (Fla. 1st DCA 1960). The substance of appellants’ second affirmative defense and of the trial court’s order indicates that appellants may have attempted to raise the “clean hands” maxim by alleging that appellees’ motive for bringing the suit was improper. See Brooker v. Smith, 108 So.2d 790 (Fla. 2d DCA 1959). See 27 Am.Jur.2d Equity § 140 (1966). We hold that although appellants failed to adequately allege “clean hands” they should be allowed at least one opportunity to amend to sufficiently state a “clean hands” defense. See National Life Insurance Co. v. Harriott, 268 So.2d 397 (Fla. 2d DCA 1972).

REVERSED in part; AFFIRMED in part; REMANDED for further proceedings consistent with this opinion.

HOBSON and McNULTY, JJ., concur.


author: PER CURIAM.

text:
    James Houston HOWIE, Appellant, v. UNITED STATES RUBBER CO., INC., et al., Appellees.
    No. 75-1690.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Rehearing Denied March 14, 1977.

      James Houston Howie, in pro. per.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellees.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by plaintiff, James Houston Howie, from an adverse final judgment entered in a personal injury action pursuant to a jury verdict.

We have carefully considered all points raised in plaintiff’s appeal in the light of the record on appeal, briefs and arguments of plaintiff and counsel for the defendant and have concluded that no reversible error has been made to appear. Therefore, the judgment appealed is affirmed.

Affirmed.


text:
    Albert B. LUCKEY, Jr., Appellant, v. SMATHERS & THOMPSON, a Florida partnership et al., Appellees.
    No. 76-255.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.
    Rehearing Denied March 23, 1977.
    Creel & Glasgow, Miami, for appellant.
    William K. Chester, Sheperd D. Johnston, Arthur S. Clark, Jr., Miami, for appellees.
    Before PEARSON, BARKDULL and HAYERFIELD, JJ.
   PER CURIAM.

Albert B. Luckey, who was the plaintiff in the trial court, appeals a final judgment entered after trial before the court without a jury. The judgment denied relief upon Luckey’s complaint to vacate writ of execution and levy of sale upon property formerly owned by Luckey. The basis for the complaint was that a default judgment had been improperly entered against him in a prior case because the court’s finding in that case that Luckey had, for the purposes of Section 48.161, Florida Statutes (1975), concealed himself to avoid service of process was unsupported by that record and untrue in fact.

After hearing evidence, the present trial judge found that Luckey had, in fact, for the purpose of avoiding all legal matters, secreted himself from the world and lived in isolation in a high security apartment refusing to answer the telephone or even to open his mail. The record shows that genuine attempts by various methods were made to effect service upon Luckey. The appellant does not contest that an officer attempted on one occasion to visit his residence to service process on him, that five unanswered telephone calls were made in an attempt to contact him, that service was attempted by way of four visits to establishments that appellant was believed to frequent, and that five attempts were made to contact appellant through observations carried out at his place of residence. We hold that the finding of the trial judge is adequately supported by the evidence and that, under the circumstances, there is no rule of law which requires that the officers of the court be able to breach the self-imposed isolation in order to inform the defendant that a suit is filed against him. See Steedman v. Polero, 181 So.2d 202 (Fla.3d DCA 1965). Cf. Green v. Nashner, 216 So.2d 492 (Fla.3d DCA 1968); and Crews v. Rohlfing, 285 So.2d 433 (Fla.3d DCA 1973).

Affirmed.

BARKDULL, J., dissents.


author: DAUKSCH, Judge.

text:
    Phillip D. HEATHERLY, Appellant, v. STATE of Florida, Appellee.
    No. 76-304.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1977.

      James K. Freeland, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal of a sentence of probation which the Appellant urges is excessive and unlawful. We agree and reverse. There is also an appeal concerning some of the terms of the probation imposed by the trial court which terms we affirm as being within the discretion of the trial court and proper under the circumstances.

The Appellant was placed on probation for a period of seven years after pleading guilty to the crime of obtaining property by worthless check. The amount of time which the court could have imprisoned Appellant under the law is five years. Our recent opinion of Holmes et al. v. State, Fla.App., 343 So.2d 632, opinion issued February 11, 1977, which cites Moore v. State, 324 So.2d 690 (Fla.1st DCA 1976); Watts v. State, 328 So.2d 223 (Fla.2d DCA 1976); Magnin v. State, 334 So.2d 638 (Fla.2d DCA 1976); State v. Jones, 327 So.2d 18 (Fla.1976) indicates this is clearly an excessive sentence.

The trial court made as a condition of the probation of the Appellant that he serve one year in the county jail. This is included within the terms of his probation both as to time and conditions.

Another condition of his probation was that he not associate with a particular individual. The record is silent as to the court’s reason for this condition and we cannot therefore find that the court abused its discretion in that regard. We affirm as to that assignment of error.

Another condition of probation was that the Appellant “promptly and truthfully answer all inquiries ... by the court or the Probation Supervisors . ” This is a reasonable and lawful condition of his probation and not a violation of his right to remain silent under the Constitution of the United States or the State of Florida and would not be one until such time as would require him to testify against himself if that ever occurs.

There are two remaining terms of his probation which are in the printed portion of this Final Order,

“(5) You will not use intoxicants to excess; nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed, or used unlawfully.”

and

“(13) You will not use intoxicants, nor possess any unlawful drugs; nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used unlawfully.”

These terms are not inconsistent with each other nor are they unreasonable or unlawful.

We affirm all of the conditions of the probation and modify the sentence by reducing the term of probation from seven years to five years.

AFFIRMED AS MODIFIED.

ALDERMAN and ANSTÉ?AD, JJ., concur.


author: ANSTEAD, Judge. DAUKSCH, Judge

text:
    Cornelius MOYLAN and Alma Moylan, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 76-323.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1977.
    Wilton L. Strickland of Ferrero, Middle-brooks & Houston, Fort Lauderdale, for appellants.
    Nancy Little Hoffmann of Druck, Grim-mett, Norman, Weaver & Scherer, Fort Lauderdale, for appellee.
   ANSTEAD, Judge.

This is an appeal from a judgment of the trial court holding that the appellant insured was not entitled to recover under the medical payments clause of her policy with the appellee carrier.

The medical payments provision provided for coverage of medical bills incurred within one year of the accident involved. However, the insured also had personal injury protection benefits (hereafter referred to as PIP) under the same policy with limits of $5,000.00 and under Section 627.736(4), Florida Statutes (1975) these PIP benefits are primary. The insured’s medical expenses did not reach the $5,000.00 PIP benefits limit until after a year had expired and thereafter her medical expenses went up to some $11,182.14. Her claim under the medical payments clause was then denied on the basis that the year had expired and the trial court upheld the denial.

The one year limitation on the medical payments coverage is clear and unambiguous and has been upheld in Florida. Reliance Mutual Life Insurance Co. of Illinois v. Booher, 166 So.2d 222 (Fla.2nd DCA 1964). Likewise, the legislature has clearly provided that personal injury protection benefits are to be primary. Under these circumstances it may be that the value of medical payments coverage has been sharply reduced with the enactment of no fault insurance under which personal injury protection benefits are made mandatory and primary. However, since medical payments coverage is an optional coverage not required by law, we cannot interfere with the terms of the contract made between the parties in providing for such coverage.

The judgment of the lower court is affirmed.

LETTS, J., concurs.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge

(concurring specially).

Appellant purchased from Appellee an insurance policy which included two “benefits.” One, that if she were to pay a certain premium she would receive personal injury protection as required by Section 627.730, et seq., Florida Statutes (1975). This particular area of the insurance code is commonly referred to as no-fault insurance and inter alia provides that these statutorily mandated benefits are primary and must be exhausted prior to any other insurance benefits becoming applicable. Section 627.-736(4), Florida Statutes (1975). ■ Second, that if she were to pay an additional premium she would receive an additional benefit commonly called medical payments. This coverage provides for additional protection for the policy holder in the event she exceeds the amount provided under her personal injury protection benefits. Therefore if she has a serious injury which causes her to incur an excessive amount of bills in connection with treatment of her injuries then this additional coverage will protect her from this greater financial loss.

She paid an additional premium for this supposed additional benefit. She thought she was protecting herself, evidently. But she was not protecting herself and the insurance company is not required to protect her because the contract says it does not have to when it is read in connection with the aforementioned statute. Due to the particular injuries of the Appellant she did not exhaust all of her personal injury protection benefits within one year of the accident. But she did exhaust those personal injury payment benefits after a period of one year. The medical payments provision in the insurance policy has a limiting provision which says that she must incur the additional expenses within one year of the date of the accident to be entitled to reimbursement. Since there was a one year limit and since the legislature has designated PIP benefits to be primary the insurance company does not have to pay Mrs. Moy-lan’s medical bills under the medical payment provision and they can keep the premium. It is not of record when Mrs. Moy-lan and State Farm entered into their insurance contract so we do not know whether this provision regarding medical payments was in existence prior to the passing of the no-fault statute. Maybe if we did the result might be different since the Appellant has raised the issues of “unconscion-ability” and “void as against public policy.” In any event the legislature might look into the matter for the public.


text:
    Beverly Jean FREIBERGER, Appellant, v. STATE of Florida, Appellee.
    No. 76-391.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1977.

      James K. Freeland, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Robert L. Bogen and Richard P. Zaretsky, Asst. Attys. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal of an Order revoking the probation of the Appellant on account of her alleged violation of certain conditions of her probation. It was alleged that she violated her probation by writing worthless checks. It was proved she wrote post-dated checks which are promissory notes under the law. See Section 832.05(2)(a), Florida Statutes (1975).

It was further alleged that she failed to make two payments on a Public Defender’s lien and she failed to make two payments in restitution of her victims. Her unrefuted testimony was her failure was caused by her indigence. It was further shown that she had made some ten monthly payments on both accounts up until the time of her losing her job and being unable to make the payments for that reason. We find this to be a valid defense of these technical violations in her case and remand this matter to the trial court with directions to restore her to probation.

REVERSE AND REMAND WITH DIRECTION.

LETTS, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: SCHWARTZ, ALAN, R., Associate Judge.

text:
    E. E. DEAN SNAVELY, INC., and the American Insurance Company, Appellants, v. WEATHERKING, INC., Appellee.
    No. 76-751.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1977.

      Alan B. Fields, Jr. and Tito S. Smith, Dowda, Hedstrom & Fields, Palatka, for appellants.
    Jules S. Cohen, P. A., Orlando, for appel-lee.
   SCHWARTZ, ALAN, R., Associate Judge.

The plaintiff-appellee, a materialman not in privity with the general contractor, secured a summary judgment for the full amount of his claim, against the surety on a performance bond posted by the general contractor under F.S. § 713.23, notwithstanding the plaintiff’s admitted failure to give timely notice to the owner as required by F.S. § 713.06(2). We reverse.

The statutory provision in question, F.S. § 713.23 expressly states

“. . . Except claimants in privity with the contractor and except laborers, no claimant shall recover on a bond or from the contractor unless he shall have complied with the provisions of § 713.-06(2).” [Emphasis supplied]

F.S. § 713.06(2), in turn, provides for the service of a notice to the owner

“. . . before commencing or not later than forty-five days from commencing to furnish his services or materials but in any event before the date of furnishing the affidavit under subsection (3)(d)l., of this section, or abandonment, whichever shall occur first.”

There is no question but that WeatherKing did not serve the notice in question until 105 days after commencement and 75 days after its abandonment of the job.

A mere reading of F.S. § 713.06(2) precludes our acceptance of WeatherKing’s contention that its faulty compliance with F.S. § 713.06(2) does not affect its right to recover on the performance bond. On the other hand, we agree that it is contrary to reason, even, as stated in Rakusin, 2 Florida Mechanics’ Lien Manual 423 (1974), “absurd” to hold that the surety is in any superior position vis a vis tardy lienholders like WeatherKing than is the owner himself under the doctrine of Crane Co. v. Fine, 211 So.2d 145 (Fla.1969). Judge Walden accurately summarized the rule enunciated in the Crane Co.case for this court in Bell v. Boys, Inc., 325 So.2d 28, 29 (Fla. 4th DCA 1976):

“We recognize that untimely notice may not preclude a plaintiff from obtaining either statutory lien or an equitable lien on undisbursed funds (or improperly disbursed funds); Crane Co. v. Fine, 221 So.2d 145 (Fla.1969); Westinghouse Electric Supply Co. v. Midway Shopping Mall, Inc., 277 So.2d 809 (Fla.App. 3rd 1973); 1800 N. Federal Corp. v. Westinghouse Electric Supply Co., 224 So.2d 384 (Fla. App. 4th 1969); and that no notice at all may not deprive a plaintiff of all hope of recovery, Crane v. Fine, supra:
“[N]o notice to the owner is necessary for a lienor to participate in the final payment, since the contractor is required to list all unpaid lienors in his final-payment affidavit, whether or not such notice has been given, § 84.061(3)(d)2, Fla. Stat.1965; and, as noted above, if a progress-payment affidavit from the contractor is required by the owner, a lienor listed therein may participate even though he gave no notice, provided a balance remains after the payment of lienors who have given notice.” (Emphasis supplied.) Id. at 152.”

Under this formulation, an asserted lienholder in violation of § 713.06(2) must establish, in order to recover against the owner at all, either that funds remain undistributed or have been misdistributed. In order to recover his claim in full, as Weather King has, he must show that any such amounts are sufficient to meet other claims which have priority over, or are equal in dignity to his; otherwise, the claimant would be entitled only to a pro rata share of the fund, or, if priority “liens” exhaust it, to nothing. Crane Co. v. Fine, supra; Moretrench Corp. v. Bronson & Veal Enterprises, Inc., 262 So.2d 206 (Fla. 4th DCA 1972). As the Bell case squarely holds, a lienholder who has not given proper notice must himself demonstrate — in fact, his complaint must so allege — that these preconditions to recovery exist.' The same rules apply, we hold, to an action such as this one, under a § 713.23 bond.

The record below, however, contains nothing whatsoever concerning the existence of any available fund (or unpaid amounts under the bond) or of any other potential claimants. It is plain, therefore, that the plaintiff did not, as the Bell case requires, carry the burden of proof to establish its right to recover. It is even more obvious that it did not discharge the duty imposed upon it, so as to justify the summary judgment it received below, to demonstrate affirmatively and conclusively the non-existence of any “genuine issue as to any material fact and that [it was] entitled to a judgment as a matter of law.” Fla. Rule Civ.Proc. 1.510(c); Holl v. Talcott, 191 So.2d 40 (Fla.1966); Westinghouse Electric Supply Co. v. Midway Shopping Mall Inc., 277 So.2d 809 (Fla. 3rd DCA 1973). The summary judgment is reversed and the cause remanded for a trial on these unresolved issues.

Reversed and remanded.

LETTS, J., concurs.

DAUKSCH, J., dissents, without opinion.


text:
    Steven SQUIRE and Joel Miller, Appellants, v. John RUFF, Appellee.
    No. 76-778.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1977.
    Howard M. Zeidwig, Fort Lauderdale, for appellants.
    Rosemary Barkett of Farish & Farish, West Palm Beach, for appellee.
   PER CURIAM.

Upon review and consideration of the briefs and record on appeal we are of the opinion that plaintiffs’ amended complaint is sufficient to state a cause of action for slander and, accordingly, the final order dismissing the amended complaint is vacated and set aside and the cause remanded to the trial court for further proceedings consistent herewith. Wolfson v. Kirk, 273. So.2d 774 (Fla. 4th DCA 1973); O'Neal v. Tribune Company, 176 So.2d 535 (Fla. 2d DCA 1965); Campbell v. Jacksonville Kennel Club, 66 So.2d 495 (Fla.1953).

MAGER, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


text:
    The MARITIMES CORCORAN ORGANIZATION, INC., a Florida Corporation, Appellant, v. MARINE FLOTATION, INC., a Florida Corporation, Appellee.
    No. 76-2047.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1977.
    Jeffrey G. Wood, of Icard, Merrill, Cullis, Timm & Furen, P.A., Sarasota, for appellant.
    Stephen C. Frasier, of Sommer, Frasier & Fenniman, P.A., Stuart, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Orange Plumbing & Heating Company v. Wolfe, 89 So.2d 671 (Fla.1956).

ALDERMAN, ANSTEAD and DAUKSCH, JJ., concur.


author: ALDERMAN, Judge.

text:
    MURRAY VAN AND STORAGE, INC., a corporation, et al., Petitioners, v. John Philip MURRAY, Individually and as Personal Representative of the Estate of F. W. Murray, Jr., a/k/a Fleming W. Murray, and Reuben Bergstrom, Respondents.
    No. 76-2240.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1977.
    Edna L. Caruso, of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for petitioners.

      Richard K. Inglis, of Grevior, Prince & Inglis, Fort Lauderdale, for Maureen Re-hard Murray.
    No appearance for John Philip Murray, individually and as Personal Representative of the Estate of F. W. Murray, Jr., a/k/a Fleming W. Murray, and Reuben Berg-strom.
   ALDERMAN, Judge.

Petitioners seek review by writ of certiorari of two interlocutory orders of the Circuit Court of Palm Beach County partially granting the motion of Maureen Re-hard Murray for a protective order. The orders in question were rendered in connection with Petitioners’ attempt to take the deposition of Maureen Rehard Murray, who was not a party to the original action below. The trial court found that Petitioners were entitled to take her deposition, but ordered that they not inquire into an alleged common law marriage between Maureen Rehard Murray and F. W. Murray, Jr. We grant certiorari because Petitioners have demonstrated to our satisfaction that the orders complained of do not conform to the essential requirements of the law and may cause material injury throughout subsequent proceedings for which remedy by appeal will be inadequate.

After commencement of an action, any party may take the testimony of any person by deposition upon oral examination. Fla.R.Civ.P. 1.310(a). The scope of such examination covers all matters not privileged which are relevant to the subject matter of the pending action. The examination is not limited to what is relevant to the issues, nor is it limited to what would be admissible as evidence at the trial. Fla.R. Civ.P. 1.280(b)(1); Parker v. Parker, 182 So.2d 498 (Fla. 4th DCA 1966); Continental Mortgage Investors v. Village by the Sea, Inc., 252 So.2d 833 (Fla. 4th DCA 1971).

The trial court, upon motion by a party or by the person from whom discovery is sought, and for good cause shown, may enter an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires. Fla.R.Civ.P. 1.280(c). The only reason given by the trial court in the present case for the protective orders which are the subject of this review was “. . . that the putative common law marriage and any possible facts and incidents surrounding are not reasonably calculated to lead to the discovery of admissible evidence . . . ” Even if true this would not be a legally sufficient reason to prevent discovery.

The possibility that F. W. Murray, Jr. had a common law wife or that there exists a woman who may claim to be his common law wife, is relevant to the subject matter of this action. Certiorari is granted and that portion of the orders under review which prohibits Petitioners from examining Maureen Rehard Murray concerning any alleged common law marriage between herself and F. W. Murray, Jr. is quashed.

ANSTEAD and LETTS, JJ., concur.

      . There are two orders because the trial judge asked both sides to submit a proposed order encompassing his rulings and apparently inadvertently entered both orders.


text:
    Armand ARCHER, Judgment Debtor, et al., Appellants, v. Martha J. ARCHER et al., Appellees.
    No. 76-2296.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1977.
    Mark R. Baer, Miami, for appellants.
    Carl V. Wisner, Jr., pro se and for appel-lees.
   PER CURIAM.

AFFIRMED on the authority of Johnson v. Town of Eatonville, 203 So.2d 664 (Fla. 4th DCA 1967) and Pierson v. Sharp, 283 So.2d 880 (Fla. 4th DCA 1973).

MAGER, C. J., and CROSS and DAUKSCH, JJ., concur.


author: BOYER, Chief Judge.

text:
    COUNTY OF ESCAMBIA, Florida, et al., Appellants, v. Carlyle HERRING and Bessie Herring, Appellees.
    No. Y-507.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1977.
    Rehearing Denied March 29, 1977.
    Jack Greenhut, County Atty., James R. McAtee, Sp. Asst. County Atty., for appellants.
    Barne J. Morain, Pensacola, for appellees.
   BOYER, Chief Judge.

Appellee commenced a declaratory judgment action, seeking to have a portion of Escambia County Ordinance 73-9 declared unconstitutional. By an order of dismissal, the trial court held that the declaratory judgment suit was improperly brought, but this Court reversed. See Herring v. County of Escambia, 308 So.2d 123 (Fla. 1st DCA 1975). Upon remand and after a final hearing at which several witnesses testified, the trial court found the ordinance unconstitutional. The County has appealed, essentially claiming that the ordinance is a valid exercise of the police power of the county.

Pursuant to Section 163.165(1), Florida Statutes (1971) which permits counties and municipalities to adopt and enforce subdivision regulations, Escambia County adopted Ordinance 73-9, a set of regulations. The portion of those regulations material to this appeal provides that a person shall not divide any parcel of property into two or more parcels, any one of which is less than four acres in size, without complying with the provisions of the regulations. As can be observed by an examination of the Ordinance, an owner must present a preliminary and final plat for approval as a condition precedent to the sale of the land.

Subsequent to the enactment of the ordinance, appellees conveyed, by metes and bounds, the parcels of property giving rise to this controversy. After being advised in a letter from an assistant county attorney that they were in possible violation of the ordinance, appellees entered into negotiations with county officials, but the negotiations were fruitless. When the assistant county attorney insisted on the right to ■prosecute for failure to comply with the ordinance, appellees filed their suit requesting a declaratory judgment.

The trial court, relying upon Kass v. Lewin, 104 So.2d 572 (Fla.1958), held that the title to the Ordinance would not apprise a reader of normal intelligence that the body of the Ordinance gives an uncommon meaning to the term “subdivision”, and that the imposition of recording a plat of the subdivision carrying forth the requirements of the subdivision ordinance would be an unreasonable and unconstitutional restraint on the right to alienate property. Because of our disposition of the case on another ground, we find it unneees-sary to pass upon the constitutional issues considered by the trial court.

The ordinance involved herein is invalid because it does not fall within the scope of the statute upon which it is allegedly based. As previously noted, Section 163.165 empowers counties to adopt and enforce subdivision regulations. Under Section 163.275, Florida Statutes (1971) “When a governing body has adopted subdivision regulations in accord with this part, it shall be unlawful for anyone who is the owner or agent of the owner of any land to transfer, sell, agree to sell, or negotiate to sell such land by reference to, exhibition of or other use of a plat of a subdivision of such land without having submitted a plan and plat of such subdivision for approval as required by this part and without having recorded the approved subdivision plat as required.” Thus, the legislature did not intend to require an owner to submit a plat of his land as a condition precedent to selling it, but rather intended that those persons desiring to sell lands by reference to a subdivision plat must do so only in conformity with subdivision regulations duly promulgated. Those persons not desiring to sell land by reference to a subdivision plat are not affected by the statute. The ordinance involved herein impermissibly attempts to include within its scope those persons whom the enabling statute excluded.

AFFIRMED.

McCORD and SMITH, JJ., concur.

      . Specifically, Article VII of the Ordinance provides: “Within Escambia County no person shall divide any parcel of property into two or more parcels, any one of which is less than four (4) acres in size, with the exception of exclusions indicated in Article X of this Ordinance, unless requirements of these Subdivision Regulations be met; nor shall any person begin any construction work in any subdivision, excluding grading, before obtaining approval of the Preliminary Plat as provided in these Regulations.
      “In any subdivision as herein defined, no Certificate of Land Use, no Building, Electrical or Plumbing Permit, and no Setback Permit shall be issued by any public official until said subdivision has been approved as a Preliminary Plat and complies with the facilities requirements of Article VIII, Section 4. No public or private utility shall permit permanent connection of any facility to individual lots until the subdivision has been approved as a Preliminary Plat and complies with the facilities requirements of Article VIII, Section 4.
      “Any person who violates, omits, neglects or refuses to comply with, or who resists enforcement of these Regulations shall be subject to the penalties specified in Article XIV.”

      . The title of the Ordinance reads in full, “An Ordinance establishing Subdivision Regulations in Escambia County, Florida, relating to the establishment of standards for subdivisions; to prescribe standards of improvements to be provided by the developer; to establish standards for the efficient, adequate and economic supply of public facilities; to establish criteria for prevention of traffic hazards; to establish safe and convenient means for circulation of traffic; to establish provision for protective flood control measures and drainage facilities; to establish provisions for open spaces in land development; to establish procedure for preliminary and final approval of plat; to establish provision for modification and exceptions to subdivisions; to establish penalties for violation of the Ordinance; and providing for an effective date.”

      .Although we do not decide the issue, it is interesting to note that we have found no authority from Florida courts that the title of a county ordinance need give fair notice of its content. Article III, § 6 of the Constitution appears to cover only laws passed by the legislature. Nothing in Article VIII even suggests that a county ordinance must have a title. Three Florida cases discuss the title of an ordinance. State ex rel. Pennington v. Quigg, 94 Fla. 1056, 114 So. 859 (1927), held that an ordinance entitled “an ordinance to regulate” may include provisions prohibiting some acts. The court spoke of the ordinance in the same terms which it uses when discussing whether a statute is sufficient under Article III, § 6, and quoted extensively from Ex Parte Pricha, 70 Fla. 265, 70 So. 406 (1915), a case involving the validity of a statute’s title. However, the court does not refer to the Constitution, and may simply have been drawing an analogy. Pittman v. Nix, 152 Fla. 378, 11 So.2d 791 (1943) invalidated an ordinance under the State Constitution’s Fourteenth Amendment. The only mention of the title was that, although it did not mention streets and public places, the title was sufficiently broad to cover all the territory within the municipality. Hope v. City of Gainesville, 195 So.2d 849 (Fla.1967), is cited in Florida Statutes Annotated as construing sufficiency of title. However, the point actually raised in that case is whether the ordinance itself is expressed with such certainty as to give reasonable notice of its scope. But see § 166.041(2), Fla.Stat. (1975).