text:
    FLORIDA RANCHETTES, INC., a Florida Corporation, Appellant, v. Ronald D. HULL and Heddy M. Hull, his wife, Appellees.
    No. Y-321.
    District Court of Appeal of Florida, First District.
    April 14, 1976.
    Rehearing Denied May 28, 1976.
    John W. Prunty, Miami, for appellant.
    Freeman & Woolfolk, Altamonte Springs, for appellees.
   MELVIN, WOODROW M., Sr., Associate Judge.

The parties will be designated as they were in the trial court.

The plaintiff lost the battle of the surveyors. The key issues before the court were plaintiff’s alleged acquisition of title by adverse possession and whether a fence constituted a boundary by acquiescence between plaintiff’s property, in Section 31, and defendant’s property in Section 32, Township 17 South, Range 32 East, Volu-sia County, Florida. The fence in question was constructed by defendant’s predecessor in title, David Carpenter, in 1953 along what he thought to be the west line of Section 32. Plaintiff’s predecessor in title, Grassy Key Investment Company, acquired Section 31 in 1956, and the fence referred to was considered to be the east line of Section 31. The remaining portion of Section 31 was enclosed by a fence. Grassy Key utilized the property by leasing it for cattle grazing. Plaintiff purchased the property in 1960 and had it surveyed. The surveyor considered that the line dividing Sections 31 and 32 was west of the fence line. The usual witness points of reference designated in the 1835 Government Survey had all vanished in obedience to the inexorable erosion of time. The surveyor then resorted, among other rules of surveying, to evidence as to boundary by acquiescence. He found concrete monuments along the fence line, placed there by direction of surveyor Marion Gordon, who was surveying Section 32 for David Carpenter. He concluded that the fence line was the acquiescence boundary. Relying on such conclusion and survey, plaintiff constructed a canal four feet west of the fence, using the fill dirt to construct a road alongside the canal, at a cost of a substantial sum of money. Later in the chain of events David Carpenter told James Pace, plaintiff’s general counsel, that the road and canal were on Carpenter’s land. Carpenter testified that he had constructed the fence along what he then thought to be the dividing line of the sections, based on his survey, but that about six months later the woods burned and he found some survey stakes further over to the west of this fence. He offered his opinion that these were the “original survey stakes”. Suffice it is to note that the stakes were described as wooden stakes about “three feet high”.

Carpenter erected a fence around his property and he never moved it over to his newly discovered section line, if, indeed, it was such.

Later, in the chain of circumstance, Carpenter stated to an official of the plaintiff that “as long as they let me use the road, that there would be no trouble using the road, I would let them have this part of the property”.

The defendants purchased their property in the Northwest Quarter of Section 32 in 1966 for poultry farming and moved onto the land in 1968. Thereafter they proceeded in 1970 and 1971 to remove dirt and fill from the property claimed by the plaintiffs, tore up the road along side the canal and then dammed up the canal, which allegedly caused the property of the plaintiff to be flooded and damaged. Thereupon plaintiff brought the subject litigation.

The survey accepted by the court was ■prepared by surveyor W. E. Swoope, and his plat located the line dividing Sections 31 and 32 as being approximately 123 feet west of the fence line delineated thereon. Based on such survey, the court ruled that the property west of the fence line and east of the west section line of Section 32 was owned by defendants and adjudged certain relief for the defendants.

The defendants’ predecessor in title, having erected the fence in accord with his surveyor’s instructions, having failed to take any affirmative action to move the fence to the later discovered stakes, and all parties with passive indifference having permitted plaintiff at great expense to construct the canal and road in reliance upon the boundary evidenced by the fence and concrete survey stakes, all resulted in such fence line, as a matter of law, being a boundary line by acquiescence dividing the property of plaintiff in Section 31 and defendants in Section 32, which is binding on the defendants Hull, as successors in title from David Carpenter.

This principle of law was laid to rest by this court in Williams v. Johntry, 214 So. 2d 62 and Watson v. Godwin, 259 So.2d 746. It would not contribute further to the jurisprudence of Florida to here restate in detail such doctrine. It is not necessary to unduly burden this opinion with a discussion of the issue of adverse possession urged in this appeal. The boundary by acquiescence rule is dispositive of the issue before this court.

The judgment is reversed with directions to the trial court to enter judgment for plaintiff on the issue of boundary by acquiescence, adjudging such line to be the fence line as shown on the Swoop survey, and proceed to a determination of plaintiff’s damages, if any, legally caused by defendants’ trespass and subsequent acts.

RAWLS, Acting C. J., and BARK-DULL, THOMAS H., Jr., Associate Judge, concur.


source: Caselaw Access Project

author: SWIGERT, Associate Judge.

license: Public Domain

text:
    CITY OF JACKSONVILLE, a Municipal Corporation, Appellant, v. Patrick S. GOODBREAD et al., Appellees.
    No. Z-262.
    District Court of Appeal of Florida, First District.
    April 20, 1976.
    Rehearing Denied May 26, 1976.
    Harry L. Shorstein and Donald R. Ha-zouri, Jacksonville, for appellant.
    Roy E. Dezern, Jacksonville, for appel-lees.
   SWIGERT, Associate Judge.

The City of Jacksonville appeals from a Final Judgment of the Circuit Court of Duval County, holding that Section 708.-906(c)(2) of the Ordinance Code of the City of Jacksonville is arbitrarily discriminatory and void. The Ordinance Code in issue is a section of the comprehensive zoning code of the City of Jacksonville and governs the distance limitations from schools and churches for liquor licensees. The code established 3 alcoholic beverage zones governing the issuance of liquor licenses as aforesaid. A relevant portion of the Ordinance provides in part as follows:

708.905 ALCOHOLIC BEVERAGE ZONES. For the purposes of this Part, there are established three Alcoholic Beverage Zones wherein locations for liquor licenses shall be approved only in compliance with restrictions of this Part as applicable to such zones:
(a) DOWNTOWN ZONE—All of that area of land encompassed by the following boundaries:
Beginning at the intersection of the cen-terline of the St. Johns River with the John E. Mathews Bridge; thence Southerly and Westerly along the centerline of the St. Johns River to its intersection with the Florida East Coast Railway Bridge; thence Northerly and Westerly along the centerline of the Florida East Coast Railroad to its intersection with the Interstate 95 Expressway; thence Northerly along the centerline of the Interstate 95 Expressway to its intersection with Old Kings Road (North); thence Southerly and Easterly along the center-line of Old Kings Road (North) to its intersection with State Street; thence Easterly along the centerline of State Street to its intersection with Washington Street; thence Easterly along the centerline of the Expressway (Alternate U.S. 1 and Alternate U.S. 90) to the John E. Mathews Bridge; thence along the centerline of the John E. Mathews Bridge to the point of beginning; all such streets, railroads, rivers, bridges and other physical features used in such description to be as in existence on October 1, 1971.
(b) USD 1 ZONE—All of that area of land within the First Urban Services District as it existed on April 10, 1969 and which is not included in the Downtown Zone.
(c) GSD ZONE—All of that area of land within the General Services District which is not included in any Urban Services District. USDs 2-5 EXCEPTED. (Ord. 72-136-66, Sec. 2)

Section 708.906 of said Zoning Code governs the distance limitations for liquor licensees from churches and schools and provides;

708.906 DISTANCE LIMITATIONS. Except as provided in Sections 708.909 and 708.910, no location shall be approved for a liquor license unless such location is not less than the distance limitations as required by this section.
(a) DOWNTOWN ZONE
(1) One thousand feet from any other location where there exists a current liquor license, or
(2) One hundred fifty feet from any established school or church.
(b) USD 1 ZONE
(1) Three thousand feet from any other location where there exists a current liquor license.
(2) Two hundred feet from any school or church.
(c) GSD ZONE
(1) Three thousand feet from any other location where there exists a current liquor license.
(2) Two thousand five hundred feet from a school or church.

The part of said Ordinance that is in issue herein is that which provides that no location shall be approved for liquor license unless such location is not less than two thousand five hundred feet from a school or church. The Trial Court held this section unconstitutional.

Plaintiffs claimed that said section was arbitrary and discriminatory and is unconstitutional because it is not uniform and it is discriminatory against Plaintiffs and does not operate equally upon all persons.

The Defendant City alleged that the purpose of the different zones is to protect the health and welfare of the City, by and large the residential community, and that this was the philosophy underlying the comprehensive zoning plan of the City of Jacksonville. The City further alleged that the core City comprising the Downtown Zone is more intensively developed than the General Services District and that preservation of the residential integrity of the General Services District is the reason for the differentiation in distance requirements. Further, the high density of Downtown Jacksonville is an area that has very little residential character as opposed to the General Services District.

The evidence showed that the Good-breads owned property in Block 2, Riverside Gardens, located within a GSD Zone. The property is further identified as being located at the intersection of Highway and Cassat Avenues, and is in a highly developed commercial and industrial area. It is zoned Commercial Intensive (Cl). A permitted use of property so zoned is shown in Section 708.314, sub-paragraph 7, of the Code, as follows:

“Establishments or facilities for the retail sale and service of all alcoholic beverages, either for on-premises or off-premises consumption, or both.”

The evidence further showed that the Cassat Avenue Baptist Church is located 445 feet from the nearest section of the Goodbreads’ property.

It is our opinion that an establishment retailing alcoholic beverages from a location in a Cl Zone within 150 feet of a church or school in the GSD Zone can have no more harmful effect than such an establishment within 150 feet of a church or school in the Downtown Zone. Here the Code establishes three different and unequal distance limitations within the City of Jacksonville upon the location of a liquor license within the single uniform zoning classification of Commercial Intensive. We hold that said classification is arbitrary and discriminatory and, therefore, void. Dade County v. Keyes, 141 So.2d 819, Fla.App. (D.C.A. 3d 1962). While it is not the function of the Court to rezone property or to usurp the legislative powers of government, it is the Court’s function to determine at which point zoning restrictions become arbitrary. William Murray Builders, Inc. v. City of Jacksonville, 254 So.2d 364, Fla.App. (D.C.A. 1st 1971).

AFFIRMED.

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


author: LEE, J. CAIL, Associate Judge.

text:
    Elvir STOSSEL, Appellant, v. Lucille Patricia STOSSEL, Appellee.
    No. 75-508.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    Rehearing Denied May 27, 1976.
    L. M. Taylor and Donald L. Brooks otf Ryan & Taylor, North Palm Beach, for appellant.
    Hal H. McCaghren, West Palm Beach, for appellee.
   LEE, J. CAIL, Associate Judge.

The marriage of appellant-husband and appellee-wife was dissolved in February 1974. In the Final Judgment the wife was granted exclusive possession of the jointly owned house until it was sold. An approximate $9,000 mortgage balance encumbered the house, the mortgage having been obtained to buy á fishing boat for the husband, title to which was taken in the name of the husband alone. About a year after the dissolution of marriage the husband filed a complaint praying for partition and sale of the home. A buyer was found for the house and the parties entered into a stipulation that $9,000 from the proceeds of the house would be placed in the Suspense Docket for court determination of ownership. This $9,000 equaled the amount withheld from the sale proceeds to pay off the mortgage. The Court then ordered the $9,000 to be distributed to the wife. It is from this order that this appeal is taken.

The court below, in its Final Judgment of Dissolution, made no finding of a special equity in the home on behalf of the wife. Therefore, title to the home was controlled by statute, to-wit: Section 689.-15, F.S.A. That statute, in pertinent part, says:

“. . . and in cases of estates by entirety, the tenants, upon divorce shall become tenants in common.”

Accordingly, the court below erred in its order of March 20, 1975, in holding that the ex-wife had more than a tenant in common interest in the subject property when it was sold. Distribution of the aforementioned $9,000 proceeds should have been made in accordance with the parties’ equal tenant in common interest in the premises. See Cribb v. Cribb, 261 So.2d 566 (Fla.App.4th 1972).

Therefore, it is not necessary to reach or consider the question of whether the original trial court had jurisdiction to even consider the matter of distribution of the subject proceeds.

This cause is reversed and remanded to the Court below for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

OWEN and MAGER, JJ., concur.


author: BOYER, Chief Judge. RAWLS, Judge

text:
    Donna Mae HARRIS, as natural parent and guardian of Ruby Nell Gorman, a minor, and Donna Mae Harris, Individually, Appellants, v. Mary Elizabeth MORICONI and Cherokee Insurance Company, a corporation, Appellees.
    No. Y-185.
    District Court of Appeal of Florida, First District.
    April 28, 1976.
    Rehearing Denied May 26, 1976.

      Frederick B. Tygart, of Tygart & Ty-gart, Jacksonville, for appellants.
    Noah H. Jenerette, Jr., of Boyd, Jener-ette, Leemis & Staas, Jacksonville, for ap-pellees.
   BOYER, Chief Judge.

Appellants, plaintiffs in the trial court, appeal from a final judgment based on an adverse jury verdict in an action for injuries sustained by the minor plaintiff when attacked by a dog owned by appellee Mori-coni. Appellee Cherokee Insurance Company is Moriconi’s insurer.

Resolution of the issues necessitate a thorough recitation of the agreed facts.

Plaintiffs’ amended complaint specifically alleged that the action was brought under the provisions of F.S. 767.04. Defendants’ answer in the form of a general denial was amended at the commencement of the trial to allege as a defense “that the dog in question bit the minor plaintiff as the result of being mischievously or carelessly provoked or aggravated.” A Motion in Limine requesting the court to exclude testimony concerning the fact that defendant Moriconi was the aunt of the minor plaintiff on the ground that such evidence would be immaterial, irrelevant and prejudicial was denied. At the close of the evidence the plaintiffs moved for a directed verdict on the issue of liability, urging that under the facts as revealed by the evidence only one defense would lie, that of careless provocation, and that since a child under the age of six may not, as a matter of law, be held liable for negligence, a for-tiori she could not be guilty of “careless provocation”. That motion was denied and the jury returned a verdict in favor of the defendants.

The facts as stated in appellants’ brief and, as above mentioned, agreed to by ap-pellee, are as follows: Plaintiff, Ruby Nell Gorman, was five-and-a-half years of age at the time of the attack. Plaintiff, Donna Mae Harris, is the natural mother and guardian of Ruby. On the date in question, Ruby rode her bicycle to Mrs. Mori-coni’s house to play with her cousins, Danny and Kelly Liles. While she was on the property of the defendant, she accidentally ran over the tail of “King”, a large German Shepherd dog, which was owned by Mrs. Moriconi. She then rode her bicycle a short distance from “King” and walked back to comfort him, at which time “King” attacked her, biting her in the face. She did not mean to run over “King’s” tail. She had never teased “King”. Ruby was taken to the hospital where she received stitches in her face.

F.S. 767.04, with certain exceptions, makes the dog owner the insurer against damage by the dog. The only exculpatory provision of the statute which was asserted by defendants’ answer was that the dog had been mischievously or carelessly provoked or aggravated by the minor plaintiff. That assertion was in the nature of an affirmative defense, casting the burden of proof upon the dog owner. The agreed facts that the minor plaintiff accidentally ran over the dog’s tail, returning only to comfort him and that she had never teased the dog refutes without question the defense of mischievous aggravation, leaving only the defense of careless provocation.

Appellant urges that since a child under six years of age is legally incapable of negligence she is likewise incapable of carelessness and may not therefore be found by a jury to have “carelessly provoke[d]” the dog which bit her. To resolve the issue thus presented, we must determine whether there is a distinction between the term “negligence” as customarily employed in tort actions and “careless” as that term is used in the subject statute. We hold them to be synonymous.

Having held that as a matter of law the minor plaintiff, being under six years of age, could not have been held liable for carelessly provoking the dog owned by the individual defendant, it necessarily follows that the learned and able trial judge erred in denying appellants’ motion for a directed verdict on the issue of liability.

Also, having so held, it is not necessary for us to determine whether the act of the minor plaintiff in walking back to the dog for the purpose of comforting him would constitute such a provocation as to except the owner from liability under the statute.

Further, inasmuch as the familial relationship between the injured child and the dog’s owner can have no relevancy nor materiality in a trial on the issue of damages, there is no necessity for us to here determine the propriety of the admission of such evidence during the trial which resulted in this appeal.

Reversed and remanded with directions to enter a judgment in favor of appellants on the issue of liability and for further proceedings consistent herewith.

SMITH, J., concurs.

RAWLS, J., dissents.

RAWLS, Judge

(dissenting).

I respectfully dissent. The majority opinion is foundationed on the common law rule that a child under six years of age is legally incapable of negligence. This rule was adopted by the Supreme Court of Florida in Swindell v. Hellkamp, 242 So.2d 708 (Fla.1970), but, as with all common law rules, it was held to apply “[i]n the absence of a legislative declaration.” The instant cause involves just that sort of legislative declaration, for Florida Statute 767.04 states: . .no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog . . .” (emphasis supplied) The legislature has made the affirmative defense available without regard to the age (or other disability) of the person committing the act. Florida Statute 767.04 thus modifies the common law rule relating to negligence of infants just as it modifies the common law in making the dog owner the insurer against damage by his dog.

I would affirm.

      . Appellants’ brief properly contains a statement of the case and a statement of the facts as required by Rule 3.7, subd. f., FAR. Ap-pellees’ brief recites: “Appellees adopt appellants’ statement of the case and statement of the facts.” It is apparent therefore that the facts are not in dispute and, accordingly, we are not required to examine the record-on-appeal. (Rule 3.7, subd. f.(3) and Rule 3.7, subd. g.(2), FAR)

      . Plaintiffs made no attempt to allege or claim a cause of action under the common law. Please see Gwrroll v. Motcley, Sup.Ct.Fla.1970, 241 So.2d 681.

      . “The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners’ knowledge of such viciousness. A person is lawfully upon private property of such owner within the meaning of this act when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon invitation, express or implied, of the owner thereof; Provided, however, no owner of any dog shall he liable for any damages to any person or his property when such person shall mischieviously or carelessly provoke or aggravate the dog inflicting such damage; nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words ‘Bad Dog.’ ”

      . Carroll v. Moxley, Sup.Ct.Fla.1970, 241 So. 2d 681; Minisall v. Krysiak, Fla.App. 4th 1970, 242 So.2d 756; and English v. Seachord, Fla.App. 4th 1971, 243 So.2d 193. Cert. dismissed, Sup.Ct.Fla.1972, 259 So.2d 136.

      . Minisall v. Krysiak, supra.

      . Swindell v. Hellkamp, Sup.Ct.Fla.1970, 242 So.2d 708.

      . Webster’s Seventh New Collegiate Dictionary defines careless to mean “free from care; . . . UNCONCERNED, INDIFFERENT . : not taking care . . . ; NEGLIGENT ...” The same authority defines negligent to mean “marked by a carelessly easy manner”. Ballenüne’s Law Dictionary, Third Edition, defines careless to mean “A word of broad significance, including negligence, wantonness, and recklessness. The word is synonymous with the word ‘negligent,’ but ‘negligent’ is probably the preferable word when used in legal pleadings and proceedings.” (Citation omitted) The lack of due diligence or care, guilty of negligence” and negligence as “A word of broad significance which may not be readily defined with accuracy. (Citation omitted) The lack of due diligence or care. . In the legal sense, a violation of the duty to use care. . . . ”
      Please see also numerous case cites in Words and Phrases, Volume 6, West Publishing Co., carelessness.

      . See Sand v. Gold, Fla.App. 3rd 1974, 301 So.2d 828.

      . By their third point, appellants urge that the trial court prejudicially erred in allowing evidence as to the family relationship between the appellants and appellee Morieoni.

      . Carroll v. Moxley, 241 So.2d 681 (Fla.1970).


text:
    Mary D. HYATT, Appellant, v. Clifton E. HYATT, Appellee.
    No. Z-247.
    District Court of Appeal of Florida, First District.
    April 30, 1976.
    Rehearing Denied May 28, 1976.

      Craig T. James, Clayton & James, De-land, for appellant.
    John F. Hughes, Daytona Beach, for appellee.
   SWIGERT, Associate Judge.

This is an appeal from a Final Judgment of Dissolution of Marriage wherein the Trial Court held that all jointly owned property of the parties would be held by the parties as tenants-in-common subsequent to the dissolution. The wife appealed from that judgment, alleging that their main asset, namely, a purchase money note and mortgage secured on her former New Jersey farm, should be her sole and separate property, because the farm was owned toy her individually prior to its sale.

The parties were married to each other on February 2, 1970, and separated in July of 1974. The farm in New Jersey was acquired while the wife was married to her first husband some 25 years ago. After her marriage to the instant husband they moved to the farm and together operated a roadside market or stand. The farm was sold on September 1, 1972, and a purchase money mortgage was taken back of $148,-400.00, which mortgage and note were placed in the joint names of the husband and wife. Husband alleges that there was a gift of a one-half interest in the note and mortgage, as evidenced by same being in their joint names. The wife alleges there was no present intention to make a gift and that she had a special equity in the purchase money mortgage.

We agree with the Trial Court’s finding that the wife by conclusive evidence did not overcome the presumption of a gift created when the note and mortgage received from the New Jersey farm owned solely by the wife was made in the joint names of husband and wife. Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974); Holton v. Holton, 189 So.2d 214 (Fla.App.3d 1966); Powell v. Metz, 55 So.2d 915 (Fla.1952).

We find that in taking the mortgage in both names as husband and wife, the wife presumed to have intended a gift to her husband of an interest therein and this presumption prevails unless overcome by conclusive evidence. See Powell v. Metz, supra.

AFFIRMED.

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


author: BY THE COURT. BOYER, Chief Judge

text:
    Leroy McMULLEN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-402.
    District Court of Appeal of Florida, First District.
    May 5, 1976.
    Rehearing Denied May 26, 1976.

      Terry McDavid, McDavid & Murphy, Lake City, for appellant.
    Robert L.. Shevin, Atty. Gen., Gerald L. Knight, Asst. Atty. Gen., for appellee.
   BY THE COURT.

The State adduced sufficient evidence to constitute a prima facie showing, pursuant to Rule 3.191(e), Florida Rules of Criminal Procedure, that the accused made himself unavailable for trial by failing to respond to a notice of arraignment regularly mailed to him. In the circumstances of this case, the trial court was not obliged to accept as conclusive the accused’s denial that he received the notice of arraignment. Contrast State ex rel. Kennedy v. McCauley, 265 So.2d 547 (Fla.App. 4th, 1972). The trial court was therefore justified in its conclusion that the accused need not be discharged under the speedy trial rule. The judgment and sentence are therefore

AFFIRMED.

MILLS and SMITH, JJ., concur.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

As in State ex rel. Kennedy v. McCauley, Fla.App. 4th 1972, 265 So.2d 547, the only issue sub judice is whether appellant was continuously available for trial between his initial arrest and the time that he filed his Motion for Discharge pursuant to Rule 3.191, RCrP. In my view that case is controlling and appellant clearly established his continuous availability. The State contends that it adduced sufficient evidence to constitute a prima facie showing that the accused made himself unavailable for trial by failing to respond to a notice of arraignment allegedly regularly mailed to him. In my view, the mere proof of the mailing of a notice of arraignment by the state, without more, does not support a finding that the accused made himself unavailable so as to avoid the mandate of Rule 3.191, RCrP. The State seeks solace in Dara v. State, Fla.App. 3d 1973, 278 So.2d 334. In that case the State contended, as here, that the failure to appear for arraignment demonstrated that appellant was not continually available for trial and that therefore it was incumbent upon the accused to show by competent proof continuous availability. The Court of Appeal found merit in the State’s contention reciting that the record in that case was “lacking any proof to establish continuous availability” (278 So.2d 335). On the contrary, sub judice the record is filled with proof that appellant •was continuously available. Not only did the uncontradicted proof establish that appellant was continuously physically available, but it also established that repeated inquiries were made on appellant’s behalf as to the charges against him.

I would reverse.


author: PER CURIAM.

text:
    BLUEVACK, INC., a Florida Corporation, and Bleaufontaine, Inc., a Florida Corporation, Appellants, v. WALTER E. HELLER & COMPANY OF FLORIDA, a Florida Corporation, Appellee. WALTER E. HELLER & COMPANY OF FLORIDA, a Florida Corporation, Appellant, v. BLUEVACK, INC., a Florida Corporation and Bleaufontaine, Inc., a Florida Corporation, Appellees.
    Nos. 75-728, 75-729.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Marx & Squitero, Miami, and Richard D. Krinzman, Miami Beach, for Bluevack and Bleaufontaine.
    Friedman, Britton .& Stettin, Miami, for Walter E. Heller & Co.

      Before BARKDULL, C. J., HAVER-FIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendants appeal a final judgment in the total sum of $30,500 entered in favor of plaintiff in this action for breach of loan commitment contracts.

Defendants Bluevack, Inc. and Bleau-fontaine, Inc. are the respective owners of 450 acres and 54 acres in and around the Fountainbleau Park area, and on December 6, 1971 each corporation executed letter agreements with the plaintiff, Walter E. Heller & Company of Florida, a commercial finance company, wherein Bleau-fontaine agreed to borrow from Heller $2,000,000 for the construction of a motel. The loan would be secured by a mortgage which “shall be a first lien” on the property. In accordance with the terms of the agreement, Bleaufontaine tendered to Heller a check for $26,000 as a non-refundable commitment fee for Heller’s services in setting up the loan; however, upon request of the defendants, Heller did not deposit the check. Bluevack also agree to borrow $1,100,000 to be secured by a mortgage. Shortly thereafter defendants received a commitment for an $8,000,000 loan from Atico Financial Corporation and stopped payment on the $26,000 check to Heller. This suit for damages and breach of contract ensued. Following a non-jury trial, the court found that contrary to the contention of defendants, the December 6 commitment letters were valid and binding contracts and the $26,000 commitment fee a valid provision for liquidated damages. The court denied Heller’s claim for loss of future profits because such profits could not be determined with any reasonable degree of accuracy. Thereupon, judgment for $26,000 plus $4,500 as reasonable attorney fees was entered in favor of Heller. Defendants appeal and Heller cross-appeals.

Defendants primarily argue that the agreement letters are not legally binding contracts because they lack certainty and definiteness. We cannot agree.

The rule that it is possible for parties to make an enforceable contract binding them to prepare and execute a subsequent agreement is well recognized provided that the agreement is definite and certain upon all the subj ects to be embraced. See John I. Moss, Inc. v. Cobbs Company, Fla.App.1967, 198 So.2d 872 and 17 Am.Jur.2d Contracts § 26 (1964). After a review of the December 6 agreement letters, we find the terms are sufficiently clear and definite to constitute a valid enforceable contract. Cf. White Lakes Shop Ctr. v. Jefferson Standard L. Ins. Co., 208 Kan. 121, 490 P.2d 609 (1971).

For their second point on appeal, defendants urge as error the award to Heller of the $26,000 commitment fee as liquidated damages in that this fee must be construed as a penalty.

If actual damages are difficult to ascertain by some known rule or pecuniary standard under reasonable circumstances, the sum designated to be paid on breach of the contract will be regarded as liquidated damages if it does not appear to be unreasonable in amount. See 9A Fla.Jur. Damages § 110 (1972) and cases cited therein. The actual damages sustained by Heller as a result of the breach by the defendants are uncertain in amount since Heller could have obtained other investment opportunities. It is also apparent that the $26,000 commitment fee is not unreasonable in view of the amount of the loans.

Defendants also argue that the court erred in awarding Heller $4,500 as reasonable attorney fees. Since the letter agreements make provision for payment of attorney fees, we conclude this contention must fail.

We also considered defendants’ remaining points on appeal and find no reversible error has been made to appear.

On cross-appeal Heller contends the court erred when it failed to include in the final judgment damages claimed for loss of profits.

In order that a recovery may be had for loss of profits, it is necessary that they be capable of proof with reasonable certainty and not entirely conjectural. See 9A Fla.Jur. Damages § 82 (1972).

After a review of the evidence presented, we agree with the finding of the trial judge that the loss of future profits cannot be determined with any reasonable degree of accuracy.

Affirmed.


text:
    PHILIP ASSOCIATE BUILDERS, INC. Appellant, v. Lena BERNARD, Appellee.
    No. 75-411.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Kenneth B. Sherouse, Jr., Miami, for appellant.
    Heller & Kaplan, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Calumet Co. v. Oil City Corporation, 114 Fla. 531, 154 So. 141 (1934), and the law set forth in Villa Corp. v. S. D. Walker, 187 F.2d 493 (3rd Cir.1951).


author: PER CURIAM. BARKDULL, Chief Judge

text:
    Norman KLEIN, as Administrator of the Estate of Francisco A. Fernandez, Deceased, Appellant, v. AMERICAN BRANDS, INC., a Foreign Corporation, Appellee.
    No. 75-1131.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.

      Schwartz & Klein, North Miami Beach, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Manuel A. Cuad-rado, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY, J., and CHARLES CARROLL (Ret.) Associate Judge.
   PER CURIAM.

The plaintiff below filed an appeal from an order of the circuit court of Dade County dismissing, for want of jurisdiction, his complaint against American Brands, Inc. for a declaratory judgment and other relief.

As appears from the record, one Francisco A. Fernandez, a resident of Cuba, died there on August 30, 1954. Among the assets owned by him at the time of his death were sixteen hundred shares of the common stock of American Tobacco Company, now American Brands, Inc. Probate of his will was undertaken in Cuba, but never completed. Some time after his death the said stock certificates were lost. According to the will of the decedent, the beneficiaries entitled to receive such assets were his widow Maria Cristina Acosta y Vaamonde, and Maria Cristina Fernandez y Acosta, his daughter, both of whom now reside in Venezuela. Dividends on the stock were paid by the company to the said beneficiaries, for a period of years. Since then, the company has been withholding the dividend payable on the stock, the amount thereof having reached approximately $23,000.00.

The plaintiff is the administrator de bonis non of the estate of said decedent, having been so appointed by the circuit court of Dade county in the ancillary administration proceeding in said estate which was filed in Dade county, Florida.

The complaint filed against American Brands, Inc. was in two counts. In the first count the plaintiff alleged his appointment as administrator; that American Brands, Inc. is a foreign corporation authorized to do business in Florida; the facts as stated above relating to sixteen hundred shares of stock of the defendant corporation; its refusal to pay dividends thereon; and prayed for an accounting by defendant as to the accrued dividends, and that the defendant be required to record a transfer of the stock to the plaintiff as administrator.

In the second count, for declaratory judgment under Chapter 86, Fla.Stat., F.S. A., the plaintiff alleged the refusal of the defendant to pay dividends accrued on the Fernandez stock, and alleged a controversy had arisen as to the status of the ownership of the stock and dividends; and prayed for declaratory judgment with respect thereto, and for other relief which should be proper based thereon.

The defendant filed a motion entitled “Motion to Dismiss for Lack of Jurisdiction”. Therein it was stated that the defendant corporation was authorized to do business in Florida; that it was incorporated in the state of New Jersey, and that its principal place of business, and that of its transfer agent, were in the state of New York. The motion to dismiss presented as grounds the contentions that the property involved in the action was not in the state of Florida; that the plaintiff administrator did not have jurisdiction over any assets within this state; and that the court lacked jurisdiction.

In granting the motion to dismiss the court ordered as follows:

“That the Defendant’s Motion to Dismiss for Lack of Jurisdiction be and the same is hereby granted without prejudice to the Plaintiff’s right to bring this cause in any court of competent jurisdiction in the State of New York, where the Defendant and the Defendant’s transfer agent, MORGAN GUARANTY TRUST COMPANY, have their principal place of business.”

The appellant argues the order of dismissal was erroneous because the action was transitory and therefore was maintainable against the defendant foreign corporation authorized to do business in Florida. The appellee argues the dismissal should be sustained on the grounds set out in its motion to dismiss.

On consideration thereof we affirm the dismissal as to the first count of the complaint. That portion of the action was premature. The party or parties now owning the stock and entitled to the dividends thereon have not been judicially determined, and therefore the plaintiff in Count I has not shown a right to compel transfer of the stock and payment of the dividends to him or to require the defendant to account to him therefor. However, we modify the order of dismissal, as it relates to Count I, by eliminating therefrom the provisions of the above quoted order beyond the dismissal of Count I, which is made without prejudice.

We hold it was error to dismiss the Second Count, which sought a declaratory judgment. The defendant company, being authorized to do business in Florida, is subject to an action against it in this state for declaratory judgment.

In the Declaratory Judgment Act, Chapter 86, Fla.Stat., F.S.A., by § 86.011 it is provided: “No action or procedure is open to objection on the ground that a declaratory judgment is demanded,” and that the court may render declaratory judgments (affirmative or negative in form or effect) on the existence or nonexistence “(1) Of any immunity, power, privilege or right; or (2) Of any fact upon which the existence or nonexistence of such immunity, power, privilege or right does or may depend, whether such immunity, power, privilege or right now exists or will arise in the future. * * *

In § 86.021 it is provided that any person who is in doubt about his rights under a will (or other listed documents, articles or memoranda) or whose rights, status or other equitable or legal relations are affected by enumerated items including a will, “may have determined any question of construction or validity arising [thereunder], and obtain a declaration of rights, status or other equitable or legal relations thereunder”.

Here there are manifest doubts and uncertainties exposed as to the rights and status of the parties with relation to the ownership and entitlement to dividends on the stock owned by the decedent, based on his will, and on the facts bearing thereon which have occurred subsequent to the death of the decedent. Among such, for example, are a necessity to determine and declare the party or parties to whom the defendant corporation should issue or reissue the stock and pay the dividends thereon (with proper safeguards to the corporation), whether that be the plaintiff as administrator, or the above named widow and daughter of the decedent (recognized by the corporation for a period of years as being entitled to receive the dividends); and whether the plaintiff administrator has the right to seek any ultimate relief which may be applicable based on such determination, or whether such relief may be sought as to such stock and dividends only by the determined heirs or distributees thereof under the will.

For the reasons stated, the order of dismissal as modified is affirmed as to Count I, and is reversed as to Count II; and the cause is remanded for further proceedings and declaratory judgment under Count II of the complaint.

It is so ordered.

BARKDULL, Chief Judge

(concurring in part; dissenting in part).

I concur in the majority opinion as it relates to Count I of the complaint; however, I respectfully dissent from that portion of the majority opinion which reinstates Count II of the complaint. I would affirm the dismissal as to this count also, except that I would modify it to make it without prejudice.

There are no assets in the State of Florida to be administered by the ancillary administrator. The dividend fund is in the State of New York; the decedent, at the time of his death, was a resident of Cuba; the purported heirs are in Venezuela; the cause of action, if any, is in the personal representative of the deceased’s estate or the purported heirs; the plaintiff is improper and this forum is improper.


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    Margo Charlotte WOODMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1251.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Max B. Kogen and Geoffrey C. Fleck, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, TJ.
   PER CURIAM.

The defendant, Margo Charlotte Woodman, was found guilty by a jury of forgery, uttering a forged instrument and grand larceny. This appeal is from the adjudication and sentence. The proof of appellant’s guilt is overwhelming.

On this appeal, the principal points urge that the appellant did not receive a fair trial because of comments of the state’s attorney and improper cross-examination. This position is apparently an afterthought inasmuch as the defendant failed to object to any of the questions which are now claimed to be improper or to object to the claimed improper comments. We hold that in view of the clear and convincing proof of the defendant’s guilt, as well as her failure to object, she has failed to prove reversible error. See Akin v. State, 86 Fla. 564, 98 So. 609, 612 (1923), and Thomas v. State, Fla.App.1971, 249 So.2d 510.

Affirmed.


text:
    Macon PEEPLES, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 75-1267.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., and Charles Hauck, Legal Intern, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the defendant from an order revoking his probation, and subsequent entry of judgment and sentence for the crime, to his conviction of which the probation related.

Appellant argues the judgment and sentence should be vacated, and a new trial granted on the probation hearing, because of refusal of the trial judge to permit argument of counsel following the presentation of evidence on the hearing for revocation of probation, and because the revocation order was signed by a judge other than the judge before whom the hearing was held.

The contention of the appellant that he was denied the right of argument is not borne out by the record.

On the hearing for revocation of probation, after the presentation of evidence when the attorney for the defendant announced intention to present argument, the trial judge stated there would be no argument, and pronounced a holding of guilt of the alleged violations of the probation. However, argument in fact was then made, covering eight pages in the record, and was heard by the court. At the conclusion thereof, without expressly so stating, the court adhered to its ruling, by terminating the proceeding without further comment thereon.

With regard to the point that a judge other than the one who heard the matter signed the order of revocation of probation, that irregularity did not operate to the prejudice of the defendant. That is so, because it did no more than to carry into effect the ruling which the trial judge who heard the matter had made and pronounced in open court. The consequent judgment and sentence were made by the judge who presided at the probation violation hearing. In this proceeding, the matters complained of by the appellant did not constitute reversible error. Washington v. State, Fla.App.1973, 284 So.2d 236, 237; Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484.

Affirmed.


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    J. M. C. and D. P. S., juveniles, Appellants, v. The STATE of Florida, Appellee.
    No. 75-1171.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellants.

      Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., and Ivan K. Chesler, Legal Intern, for appellee.
    Before HENDRY and HAVERFIELD, JJ-, and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellants seek review of their adjudications of delinquency for violations of § 784.04, Fla.Stat.

The victim, Mrs. Phillips, became involved in a verbal altercation with the appellant J.M.C. and her sister. Subsequently, Mr. Phillips was surrounded by five or six teenage girls and a fight ensued during which J.M.C. kicked or attempted to kick Mrs. Phillips. Appellant D.P.S. observed J.M.C. and Mrs. Phillips fighting and she struck Mrs. Phillips on the back with a stick causing her to fall down. While lying helpless on the ground Mrs. Phillips was cut by the girls who fled after the police were called. As a result of this incident, J.M.C. was adjudicated delinquent for assault with a deadly weapon [§ 784.04, Fla.Stat.] and D.P.S. was so adjudicated for assault and battery with a deadly weapon [§ 784.04, Fla.Stat.].

D.P.S. contends there is no evidence that she cut Mrs. Phillips and a stick is not a deadly weapon. Therefore, the finding of guilt as to aggravated assault was erroneous.

The gist of the crime of aggravated assault is found in the character of the weapon with which the assault is made, i. e. whether it is deadly or not, and there is no requirement for the addition of a specific intent over and above that required for simple assault. Goswick v. State, Fla.1962, 143 So.2d 817; Bass v. State, Fla.App.1970, 232 So.2d 25. Further, whether or not the particular weapon in an assault case is to be classified as deadly or not is a factual question to be determined by the trier of the facts. City of Miami v. Gaskell, Fla.App.1973, 285 So.2d 666.

We find that there is sufficient competent evidence to sustain the finding that the stick was a deadly weapon in that it was large enough to cause the victim to be knocked to the ground upon being struck with it on her back. Cf. Bass v. State, Fla.App.1965, 172 So.2d 614.

In addition, we also note that Mrs. Phillips was cut several times by the girls and at the very least, D.P.S. could be found responsible as an aider and abettor for the cuts inflicted on Mrs. Phillips by D.P.S.’ companions. See State v. Roby, Fla.1971, 246 So.2d 566; McNeal v. State, Fla.App. 1974, 303 So.2d 698 and Cf. Studdard v. State, Fla.App. 1968, 214 So.2d 767.

Appellant J.M.C. argues that the evidence at most shows she is guilty of simple assault rather than assault and battery. We cannot agree.

There is ample testimony that the victim and J.M.C. were fighting and engaged in physical contact. Thus, we will not disturb the judge’s finding of guilt as to assault and battery.

Affirmed.


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    Frank M. JOLLY, as Administrator of the Estate of Cora A. Jolly, et al., Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, and the Florida Keys Aqueduct Authority, a political subdivision of the State of Florida, Appellees.
    Nos. 75-148, 75-460.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.

      Helliwell, Melrose & DeWolf, William E. Sadowski and Douglas S. Lyons, Miami, for appellants.
    Papy, Levy, Carruthers & Poole, Coral Gables, Steven J. Cohen, Miami, Harris, Albury & Morgan, Key West, Dixon, Dixon, Lane & Mitchell and Thomas L. Hurst, Miami, for appellees.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

Plaintiffs appeal from a final summary judgment in favor of the defendant, The Florida Keys Aqueduct Authority and its insurer, Insurance Company of North America, and an order dismissing plaintiffs’ second amended complaint with prejudice as to the defendant, The City of Key West and its insurer, Insurance Company of North America. We have consolidated these appeals for efficient disposition.

The complaint arising out of the fire at the Jolly residence in Key West, Florida, was brought by Frank M. Jolly as administrator of the estate of Cora A. Jolly, deceased, under the survival statute, § 46.021, Fla.Stat., and by Frank M. Jolly, individually, and as parent and natural guardian of Michael M. and Christopher A. Jolly and by Timothy O. Jolly and Patricia E. Jolly, individually, and as relatives dependent on the decedent for support under the wrongful death statute, §§ 768.19, 20 and 21, Fla. Stat. All plaintiffs have sued for damages to their personal property.

The complaint for damages alleged that on May 25, 1973, a fire occurred at the Jolly residence. Shortly thereafter, City of Key West firemen arrived at the scene and attempted to extinguish the fire; that the fire was virtually under control and had not done substantial damage to the residence when the water in the fire truck tanks became exhausted; as a proximate result of the failure of the defendant, Aqueduct Authority, to maintain the water supply system, the firemen at the scene were unable to obtain water from those hydrants in close proximity to the Jolly residence with which to extinguish the fire; that Cora Jolly, seeing her house destroyed by fire while the firemen stood by apparently doing nothing, became aggravated and upset which, in conjunction with the heat and smoke dissipated by the fire, aggravated a pre-existing condition which resulted in her death.

The complaint further alleged that by contract the Aqueduct Authority was responsible for constructing, maintaining and operating a water distribution system and keeping the same in good repair and making water available for the operation of the fire hydrants of the City of Key West, which it did not do. With reference to the negligence, the complaint against the City of Key West alleged:

“19. The CITY OF KEY WEST, on or about May 25, 1973, had a duty to provide fire protection for its citizens, their houses and businesses; that on or about said date, the CITY breached that duty by one or more of the following:
a. By failure to provide equipment necessary to its firemen to operate the hydrants in the vicinity of the Jolly residence on Patterson Avenue;
b. By failing to adequately instruct its firemen in the use of their fire fighting equipment;
c. By delegating the responsibility for maintenance, construction and operation of fire hydrants and stand pipes to the
FLORIDA KEYS AQUEDUCT AUTHORITY;
d. By failure to discover the defective condition of the fire hydrant and stand pipe system;
e. By the negligence of its employees in fighting the aforesaid fire.”

In viewing the propriety of a motion to dismiss a complaint, we are confined to the consideration of the allegations thereof in light of the applicable law. The issue to be resolved here, then, is whether or not the City of Key West can be held liable for the alleged damages to the plaintiffs.

The posture of the applicable law at the time of the incident in this case was that in order to hold a municipality or state agency liable for the negligent acts or omissions of its employees, the plaintiffs must allege and prove the existence of a duty owed by the person or persons charged with negligence to the person injured and that such duty is something more than the duty which is owed to the public generally and that plaintiffs have sustained some special or peculiar damage different from that sustained by the public generally. Steinhardt v. Town of North Bay Village, Fla.App.1961, 132 So.2d 764, cert. den., Fla. 1962, 141 So.2d 737; Modlin v. City of Miami Beach, Fla.1967, 201 So.2d 70. From the complaint with respect to its claims arising out of the death of Cora Jolly under the wrongful death statute and the survival statute, it is clear that the negligent acts, and responsibilities alleged to be owed by the City of Key West, were those owed to the public generally and not special or peculiar only to Cora Jolly. On the question of plaintiffs’ property damage on the Jolly premises, the complaint does not allege specific negligent acts by the firemen when the water supply became exhausted. The primary responsibility for the water supply was in the hands of the Aqueduct Authority.

Plaintiffs contend that under § 455.06, Fla.Stat., the City of Key West, by purchasing liability insurance, has waived its immunity from suit and is liable to the plaintiffs to the extent of its insurance coverage. This is not so because § 455.06, Fla.Stat., specifically excludes and does not apply to incorporated cities and towns. Accordingly, the trial court was correct in dismissing plaintiffs’ second amended complaint with prejudice.

We now consider plaintiffs’ appeal from the final summary judgment for the Aqueduct Authority. The order entering summary judgment does not state the grounds therefore. The record and the second amended complaint reflect that the Aqueduct Authority was created by Chapter 21230, Special Laws of Florida, 1941, and reads in part as follows:

“AN ACT Ratifying and Confirming the Appointment of the Members of the Florida Keys Aqueduct Commission and Constituting Said Commission a Body Corporate and Politic; Prescribing and Fixing the Jurisdiction, Powers and Duties of Said Commission and of Its Officers; Authorizing Said Commission to Construct, Maintain and< Operate an Aqueduct and Water Distribution Systems for Supplying Water-in the Florida Keys Area . . .
* * * * * *
Section 12. GOVERNMENTAL FUNCTION.—It is hereby found, determined and declared that the creation of the Commission and the carrying out of its corporate purposes is in all respects for the benefit of the people of this State and is a public purpose and that the Commission will be performing an essential governmental function in the exercise of the power conferred upon it by this Act;. . .”

The question thus raised is whether or not the Aqueduct Authority is liable for the acts or omissions of its employees as alleged in the complaint and shown by admissible evidence presented at the hearing on the motion for summary judgment. By the reading of Chapter 21230, it is apparent that the Aqueduct Authority is a governmental function.

Plaintiffs contend, however, that even if the Aqueduct Authority is entitled to immunity as a governmental function, by virtue of the facts in this case, it has purchased liability insurance pursuant to § 455.06(2), Fla.Stat., and has waived immunity. As a consequence of such waiver of immunity, the Aqueduct Authority is liable to plaintiffs for damages to person as well as property to the extent of such insurance coverage.

The record reflects that the Aqueduct Authority did purchase insurance from Insurance Company of North America. However, such waiver of immunity by procurement of insurance, in itself, does not establish liability in the absence of a showing that the Aqueduct Authority has committed a tort. The commission of a tort must be alleged and proved. The record reflects that from the allegations of the complaint and the evidence adduced at the hearing on the Aqueduct Authority’s motion for summary judgment, there was ample evidence for a trier of fact to find the employees of the Aqueduct Authority guilty of negligent acts or omissions. Even though a person or persons may be guilty of negligent acts or negligent omissions to act, there can be no recovery for an injury which was not a reasonably foreseeable consequence of such person’s negligence. To be foreseeable, the negligent act must be such that a person, by prudent human foresight can anticipate that it will likely result from the act or, as in this case, failure to act. Cone v. Inter County Telephone and Telegraph Company, Fla. 1949, 40 So.2d 148; Langevin v. Gray Drug Stores, Inc. of Miami, Fla.App.1968, 216 So.2d 70. The facts and circumstances surrounding Cora Jolly’s collapse and subsequent death do not lead to the inference that the Aqueduct Authority’s negligence, or for that matter the negligence of the City of Key West, was the proximate cause of her natural and probable injuries and subsequent death which would have been reasonably foreseeable by the defendants herein. Therefore, the summary judgment for defendant Aqueduct Authority as to plaintiffs’ suit under the survival and wrongful death statutes, supra, is affirmed.

This leaves for our consideration, the plaintiffs’ claim for property damage. We find that there is a genuine issue of material fact presented as to the negligence of the employees of the Aqueduct Authority as to damages to the property of the plaintiffs; and that § 455.06, Fla.Stat., waives immunity in this regard to the extent of its insurance coverage. Therefore, the summary judgment is reversed as to the property damages alone and remanded to the trial court for further proceedings.

Affirmed in part, reversed in part and remanded.

      . The record reflects that Mrs. Jolly was coming home for lunch. When she neared her home and saw it burning, she immediately became upset and screamed, “Oh my lord, there is no water.” Mrs. Jolly then collapsed and died two days later.

      . Section 768.28, Fla.Stat., effective July 1, 1974, provides for waiver of immunity by state agencies and municipalities in tort actions with limitations as to the amount of recovery.

      . Section 455.06(2), Fla.Stat., provides : “In consideration of the premium at which such insurance may be written, it shall “ . not be entitled to the benefit of the defense of governmental immunity of any such political subdivisions of the state in any suit instituted against any such political subdivision as herein provided, or in any suit brought against the insurer to enforce collection under such an insurance contract; and that the immunity of said political subdivision against any liability described in subsection (1) hereof as to which such insurance coverage has been provided, and suit in connection therewith, are waived to the extent and only to the extent of such insurance coverage, ...”


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    MANCHESTER INSURANCE & INDEMNITY COMPANY, and Department of Insurance, as Ancillary Receiver, Appellants, v. Rafael RODRIGUEZ, Administrator of the Estate of Ruben E. Adan, a Deceased minor, et al., Appellees.
    No. 74-1728.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Kuvin, Klingensmith & Lewis, Miami, L. Guerry Dobbins, Tallahassee, for appellants.
    Sams, Anderson, Post & Ward, Robyn Greene, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant seeks reversal of an order for equitable distribution directing that it receive $350 out of the proceeds of the judgment recovered by the estate of the deceased.

On May 1, 1973 Ruben E. Adán, a minor, while riding his bicycle was struck by a hit and run vehicle and fatally injured. Appellant, Manchester Insurance Company, and Gateway Insurance Company (not a party to this appeal) each paid $2,500 in personal injury protection benefits. Rafael Rodriguez, as administrator of deceased’s estate, filed suit against defendants Avis Rent-A-Car System, Inc. and Ruth Wilson for recovery of all the medical and funeral expenses resulting from Adam’s death (separate and apart from the elements of damage recoverable by the survivors). Defendants alleged as a defense that their vehicle was not the vehicle involved or in the alternative that the vehicle was stolen and defendant Wilson was not the driver. There being no eyewitnesses to the accident, the cause took five days of trial before a jury, which found in favor of the estate for $11,183.78. Thereafter, Rodriguez filed a motion for equitable distribution. A hearing was held on this motion and the trial judge awarded Manchester $375 and Gateway $375. Manchester appeals the amount of this award. We affirm.

As held in Reyes v. Banks, Fla.App.1974, 292 So.2d 39, 42, the following guidelines should be taken into consideration in determining equitable distribution pursuant to § 627.736(3)(b), Fla.Stat.:

“(1) The extent, if any, to which plaintiff failed to obtain full recovery for his entire damages;
“(2) The amount of the attorney’s fee (which is usually a contingent fee and runs anywhere from 25% to 50% depending on the circumstances) ;
“(3) The amount of expense incurred in investigating and prosecuting the claim;
“(4) The amount (and value) of the time, inconvenience and responsibility involved on the part of the injured person (who may have not only missed work but have necessarily undergone much anxiety and worry in regard to the claim, the law suit, being ‘in court’ for the first time in his life, etc.);
“(5) The fact that the client has to put up or stand good for the court costs, the investigation costs and other expenses of litigation while the carrier did not take this risk, and if the injured person has to end up paying all of these expenses without reimbursement, in the event of no recovery because of a defense verdict or no valid insurance or some other reason, it would be much harder on him ordinarily than it would have been on a large corporation.”

In addition, the amount awarded to an insurer as equitable distribution is clearly within the discretion of the trial judge. Hartford Accident & Indemnity Company v. Orlow, Fla.App.1974, 300 So.2d 36.

In light of the above principles and guidelines and in view of the fact of the protracted litigation due to the lack of eyewitnesses making it necessary for plaintiff to identify the vehicle and the driver on largely circumstantial evidence, we conclude Manchester has failed to show an abuse of discretion in the award to it of $375 as equitable distribution. Cf. Hartford Accident & Indemnity, supra and Central National Insurance Company v. Fernandez, Fla.App. 1975, 307 So.2d 906.

Affirmed.

PEARSON, J., dissents.


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    John Thomas RASH, Appellant, v. The STATE of Florida, Appellee.
    No. 75-809.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.

      Bloom & Kipnis, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira Loewy, Asst. Atty. Gen., Miami, for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant appeals his conviction for carrying a concealed weapon in violation of § 790.01, Fla.Stat. after a non-jury trial.

Defendant urges as reversible error the determination by the trial judge that he does not come within the statutory exception to § 790.01, Fla.Stat. as set forth in § 790.25, Fla.Stat., i. e. the carrying of a concealed firearm in one’s home. See also French v. State, Fla.App. 1973, 279 So.2d 317.

Defendant testified that on the night in question, he heard someone attempting to break into his apartment and thereupon took a gun and went outside the building to a walkway. Satisfied that the burglars had fled, defendant remained on the walkway a few minutes and then started to return to his apartment when he was met by two City of Miami police officers who removed his gun and placed him under arrest. Defendant argues that at all times he had the gun in his right hand. The arresting officers testified that when they arrived on the scene, in response to a call with reference to a disturbance, a group of citizens indicated there was a person in the area with a firearm. Defendant was then pointed out to the officers who saw him at the corner of the apartment building going toward his apartment. Defendant drew a firearm from underneath his shirt and turned half way toward them. Upon seeing the officers had their firearms drawn defendant placed his weapon under his shirt, stepped up onto the walkway and started for his apartment which was 10 to 15 feet away.

Where there are conflicts in the evidence in a non-jury trial, it is within the province of the trial judge, sitting as the trier of the facts, to reject any testimony he finds to be untrue and rely upon that which he finds to be worthy of belief. Eizenman v. State, Fla.Apu.1961, 132 So.2d 763; Hoover v. State, Fla.App.1968, 212 So.2d 95.

The judge having concluded that the officers’ testimony was worthy of belief, we find that he was correct in determining that defendant did not come within the exception to § 790.01, Fla.Stat. See Facion v. State, Fla.App. 1974, 290 So.2d 75.

We also reviewed defendant’s other point on appeal and find it to be without merit. See Crum v. State, Fla.App.1965, 172 So.2d 24, 25; Wetherington v. State, Fla.App.1972, 263 So.2d 294.

Affirmed.


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    Renate HALL and State Farm Fire and Casualty Company, an Illinois Corporation, Appellants, v. Maria RICARDO, a minor, by and through her father and next friend, Jose Ricardo, and Jose Ricardo, Individually, Appellees.
    No. 75-1046.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Walton, Lantaff, Schroeder, Carson & Wahl and David K. Tharp, Miami, for appellants.
    Ser & Keyfetz, Freidin & Goldfarb, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal by the defendants, dog owner Renate Hall and her insurer, State Farm Fire and Casualty Company, from an order granting the motion of the plaintiffs for judgment notwithstanding the verdict and an order to proceed to trial on the issue of damages only, following a verdict for the defendants in a dog bite case.

In this appeal we are called upon to make a determination as to the propriety of the judgment notwithstanding the verdict. At the outset, we note that under the present practice in Florida there is no motion for a judgment notwithstanding the verdict. This situation is governed by Rule 1.480, RCP, under which the proper title for the motion is “Motion For Judgment In Accordance With Motion For Directed Verdict.” DeMendoza v. Board of County Commissioners, Fla.App.1969, 221 So.2d 797. Mislabeling, however, does not constitute error where the substance of the motion is in accordance with the rules. DeMendoza, supra. On the authority of McCabe v. Watson, Fla.App.1969, 225 So.2d 346, we will treat the judgment notwithstanding the verdict in the instant case as a judgment in accordance with motion for directed verdict. Such a judgment, in substance and practical effect, is tantamount to a deferred ruling on a motion for directed verdict. Smith v. Peninsular Insurance Company, Fla.App.1966, 181 So.2d 212; McCabe v. Watson, supra; Whitman v. Red Top Sedan Service, Inc., Fla.App. 1969, 218 So.2d 213; Cheek v. Long, Fla.App.1970, 235 So.2d 349.

Having carefully reviewed the record, we find that the plaintiffs failed to move for a directed verdict at the close of all of the evidence. It was improper for the trial court to grant the motion for judgment notwithstanding the verdict since there was no motion for directed verdict on which ruling was deferred.

Therefore, the judgment notwithstanding the verdict and the order of trial on the issue of damages are reversed and the cause is remanded to the trial court with directions to reinstate both the verdict and the judgment which was entered on the verdict.

Reversed and remanded with directions.


author: McCORD, Judge.

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    STATE of Florida, Appellant, v. Joseph Anthony SKROBACKI, Appellee.
    No. Z-392.
    District Court of Appeal of Florida, First District.
    May 12, 1976.

      Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellant.
    Joseph Q. Tarbuck, Pensacola, for appel-lee.
   McCORD, Judge.

This is an appeal by the State from an order of the trial court granting the defendant’s (appellee’s) motion to suppress and his motion to dismiss. The stipulated facts are as follows:

“On May 19, 1975, at approximately 2:40 A.M., Florida Highway Patrol Trooper Stephen R. Bevis and Gulf Breeze Police Department Sergeant Malcom Sanders were stopped along State Road 399 in Gulf Breeze at the north end of the Bob Sikes Bridge. Both officers had stepped out of their vehicles and had their blue lights and emergency flashers working when a black and maroon Chevrolet Monte Carlo came past them at a high rate of speed without any appreciable reduction of speed as it passed the two police officers. Both officers gave pursuit through Gulf Breeze on Highway 98 and onto the Pensacola Bay Bridge from Gulf Breeze to Pensacola. Trooper Bevis testified that when he first gave chase he was one to three-fourths miles behind Appellee and at one point he was traveling 110 miles per hour and the Monte Carlo was still pulling away from him. Trooper Bevis finally stopped the Appellee just before the two vehicles proceeded off the Pensacola Bay Bridge.
After the vehicle stopped, Bevis ordered the driver out with the use of his public address system. Upon the Appellee exiting the vehicle, the Trooper advised him he was under arrest for Wilfull and Wanton Reckless Driving. The driver of the vehicle was later identified as Joseph Anthony Skrobacki.
At this point in time Sergeant Sanders arrived upon the scene, got out of his car and then Bevis conducted a pat-down search of Skrobacki. Bevis requested Sanders to watch the defendant while he (Bevis) checked Skrobacki’s vehicle. Skrobacki was at this point in time some 15 feet from his vehicle, and each officer was armed with a pistol in a holster at his side.
Bevis walked to the driver’s side of Skrobacki’s car, and with the use of his flashlight, noticed a bottle of Seagram Crown Royal Whiskey (State’s Exhibit Number 1) in the already open glove compartment which was located on the passenger side of the vehicle. The bottle could be seen to be partially empty from the exterior of the vehicle. The Trooper also noticed from this position that there was a box of Remington .380 caliber pistol ammunition in the glove compartment as the end of the box was sticking out of a brown paper bag. Be-vis walked around to the passenger side of the vehicle, opened the passenger door and removed the bottle of whiskey from the glove compartment. As he removed the whiskey, he noticed a pistol magazine or clip (State’s Exhibit Number 2) which was laying under the bottle. The magazine contained six rounds of ammunition.
At this time, Bevis looked under the passenger seat to ascertain whether there was a gun since he had not found one on Skrobacki when he patted him down. There was not. Bevis then looked under the driver’s seat and observed a purple colored velvet bag with a drawstring (State’s Exhibit Number 3) beneath the driver’s seat. He walked back around to the driver’s side and felt the bag while it remained [sic] underneath the seat. He felt a hard object in the bag. He discovered the draw-string was loose and that the bag was entirely concealed. He reached into the bag and found a fully loaded Browning .380 caliber automatic pistol. (State’s Exhibit Number 4 and S). The defendant was then placed under arrest for Carrying a Concealed Firearm.”

The trial court, in granting the motion to suppress, found the search of appellee’s vehicle was without probable cause. In granting the motion to dismiss the trial court found “there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant inasmuch as the Court finds that the weapon in question was ‘securely encased’ within the purview of Florida Statute 790.25 (3) (I) providing for exceptions to the application of Florida Statute 790.01.” Appellant contends that the trial court erred in both respects.

As to the motion to suppress the pistol which was seized by the trooper, it appears that the only legal justification for the search would have been (1) an inventory search of an impounded vehicle or (2) a search on probable cause to believe that the vehicle contained contraband, or (3) a search as an incident to a lawful arrest. It has not been contended that the search was an inventory search and the record does not show that the vehicle was impounded. As to probable cause, the trooper upon seeing the box of ammunition and the pistol clip in the glove compartment, had reason to believe that a pistol was somewhere in the automobile but this did not justify a search for the pistol because it is not unlawful to carry a pistol in an automobile unless it is so located as to be on or about the person and is not securely encased. The trooper did not have reasonable grounds to believe that the pistol would be located under the driver’s seat and not securely encased.

As to search as an incident to a lawful arrest, the bounds of such a search are described in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed,2d 685, as follows:

“A similar analysis underlies the ‘search incident to arrest’ principle, and marks its proper extent. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ —construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.”

It is clear that the search of this automobile was not justified as an incident to appellant’s arrest. He had been placed in custody by the two armed officers and was 15 feet away from the vehicle. The trial judge did not err in granting the motion to suppress the evidence—the pistol. Since we rule that the pistol was properly suppressed, we do not reach the question of whether or not it was “securely encased.”

AFFIRMED.

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


text:
    David BROWN, a minor, by and through his parents, legal guardians and next friends, et al., Appellants, v. Helen R. DILWORTH et al., Appellees. Helen R. DILWORTH, Appellant, v. David BROWN et al., Appellees. CONSOLIDATED MUTUAL INSURANCE COMPANY, Appellant, v. David BROWN et al., Appellees.
    Nos. 75-748, 75-1091, 75-1030 and 75-1058.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Horton, Perse & Ginsberg, Welsh & Carroll, Miami, for Brown.
    Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for Allstate.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for Great American.
    Sam Daniels, Miami, for Consolidated Mutual.
    Michael M. Tobin, Coral Gables, for Dil-worth.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

These consolidated appeals were filed by the plaintiffs (Nos. 75-748 & 75-1091), by the defendant Helen R. Dilworth (No. 75-1030), and by the defendant Consolidated Mutual Insurance Company (No. 75-1058). The judgment appealed from was entered upon a trial relating to questions of coverage of the several insurers, held in advance of trial of the merits of a personal injury action.

The facts involved included the following. Dilworth, owner of an apartment complex, regularly parked a Ford truck on the premises, in which garbage and trash of the tenants was placed. At the end of a week, or when the truck became full, it was driven by an employee of the owner to a dumping area where the garbage and trash thereon was dumped. At a time when the truck was so parked on the premises, and had been partially filled with garbage or trash, two small children of tenants were playing on or about the truck. Out of the trash on the truck one of the children picked up a bottle that contained some residue of a commercial drain cleaner. Apparently believing it to be some kind of lotion, one of the children put some of the liquid on the other, stating “Hold it, Chip, let me put some lotion on you”. The injury caused to the child by the caustic material forms the basis of this action against the owner Dilworth, Consolidated Mutual Insurance Company, the premises liability insurer, Allstate Insurance Company, the truck insurer, and Great American Insurance Co., the umbrella insurer.

The insurers filed answers denying coverage. Dilworth filed a cross-claim against Allstate, claiming damages for alleged bad faith of Allstate in denying coverage and in failing and refusing to settle the plaintiff’s claim on a certain basis.

The pertinent coverage provision in the Allstate policy was as follows:

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.”

Further in the Allstate policy there was a provision that “use of the automobile for the purposes stated include the loading and unloading thereof”.

The policy of Consolidated stated coverage as follows:

“The company will pay on behalf of the insured all sums which the insured become legally obligated to pay as damages because of Coverage A. bodily injury, or Coverage B. property damage, to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use of the insured premises and all operations necessary or incidental thereto * * *.”

The Consolidated policy contained an exclusion provision as follows:

“This insurance does not apply:
“(b) To bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of (1) any automobile or aircraft owned or operated by or rented to the named insured”.

The trial court held there was absence of coverage under the Allstate policy, and dismissed Dilworth’s cross-claim against Allstate; held there was coverage under Consolidated’s policy; and held that the coverage under the Great American policy was for excess insurance over the limits of the Consolidated policy. In so holding the trial court concluded the injury was not caused by use of the automobile within the meaning of the insurance polices involved. The plaintiffs and Dilworth, appealing, and Great American Insurance Co. as a cross-appellant, contend the holding of the trial court with reference to use of the truck was error. Consolidated, appealing makes the same contention, since that holding resulted in ruling there was coverage under Consolidated’s policy.

Having considered the record and briefs, and the arguments and the authorities cited in support thereof, we find no reason in law to disturb the decision made by the trial court.

The judgment is affirmed.


text:
    BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, Appellant, v. BANKERS LIFE AND CASUALTY COMPANY, an Illinois Corporation qualified to do business in the State of Florida, Appellee.
    No. X-533.
    District Court of Appeal of Florida, First District.
    April 30, 1976.
    Ross A. McVoy, Tallahassee, for appellant.
    Gayle Smith Swedmark and James C. Truett of Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for appellee.
   PER CURIAM.

The salient issue to be resolved is whether or not the circuit court properly found that appellee fell within the terms of Section 11, Chapter 57-362, Laws of Florida (the Bulkhead Act). After fully reviewing the briefs and record, we conclude that the trial judge correctly resolved this issue. The scholarly opinion of the learned trial judge is adopted as the opinion of this court:

“JUDGMENT

“This cause was instituted as a result of the United States District Court for the Southern District of Florida declining to pass upon questions of local law material to the rights of the parties, and the decision of this court is strictly limited to those issues properly presented to and necessarily decided by this court.

“Plaintiff [appellee] is the owner of lands within the corporate limits of the Village of North Palm Beach which border upon Lake Worth and the Atlantic Ocean.

“There have been duly established bulkhead lines opposite the lands owned by plaintiff.

“Plaintiff desires to fill the area between the high water mark and the bulkhead line, and seeks an adjudication of its rights with respect to such filling and, specifically, a declaration that it has the right to construct such fill and either that it is not required to obtain a permit from the trustees [appellant] before making such fill or, in the alternative, for a mandatory injunction requiring the issuance by the trustees of such permit.

“Before discussing the right of the plaintiff to fill the area in question, it is well to point out that certain related and collateral issues are not before the court and may not properly be adjudicated in this proceeding.

“There is not presented to this court, even if it had jurisdiction, any question of the right of the plaintiff to secure the issuance of any permits required by the United States as a condition precedent to the lawful filling of the area involved. Nor is there presented to this court, even if it had jurisdiction, the question of any authority of the trustees to consult and advise with any agency of the federal government with respect to decisions to be made by such federal agency to the extent that, in so doing, the trustees act as adviser to the federal agency as distinguished from the exercise of any power or duty as an agency of the State of Florida.

“The pleadings in this case do not present any issue as to the right of the plaintiff to dredge fill material from bottoms outside the bulkhead line for the purpose of filling the area within the bulkhead line. While there are some allegations and stipulations of fact with regard to the purchase of fill material from the trustees, no relief is prayed with regard to the extent and nature of any right of the plaintiff to dredge material from outside the bulkhead line.

“The issues presented to this court are thus restricted to the abstract right of the plaintiff to fill the area in question and the right to demand a permit from the trustees, if one is necessary.

“In order to solve this problem, it is necessary to study the history of the law of Florida on this subject. Originally, the common law controlled, and under the common law the title to the bottoms of all navigable waters was vested in the sovereign for the use of the people subject to the right of the sovereign to convey title to specified areas to private ownership when in the public interest.

“In 1921, the legislature enacted Chapter 8537, Laws of Florida, commonly known as the Butler Act, and plaintiff derives its rights from that statute. The Butler Act was obviously enacted for the purpose of encouraging the development of waterfront property in Florida. The court judicially knows that much upland in Florida bordering upon navigable waters is very low and marshy. When the Butler Act was adopted, Florida was much more sparsely populated than today, and was striving to attract tourists, investors, new citizens and industries to the state. In enacting the Butler Act, the legislature found:

“ ‘Whereas, it is for the benefit of the state of Florida that water front property be improved and developed; and
“ ‘Whereas, the state being the proprietor of all submerged lands and water privileges within its boundaries, which prevents the riparian owners from improving their water lots: . . . ’
“Based upon these findings, the Butler Act provides:
“ 'The state, subject to any inalienable trust under which the state holds all submerged lands and water privileges within its boundaries, divests itself of all rights, title and interest to all lands covered by water lying in front of any tract of land owned by the United States or by any person, natural or artificial, or by any municipality, county or governmental corporation under the laws of Florida, lying upon any navigable stream or bay of the sea or harbor, as far as to the edge of the channel; and vests the full title to the same, subject to said trust in and to the riparian proprietors, giving them the full right and privilege to build wharves into streams or waters of the bay or harbor as far as may be necessary to affect the purposes described, and to fill up from the shore, bank or beach as far as may be desired, not obstructing the channel, . . . provided, that the grant herein made shall apply to and affect only those submerged lands which have been, or may be hereafter, actually bulkheaded, filled in, or permanently improved, continuously, from high water mark in the direction of the channel, . . . and shall in no wise affect such submerged lands until actually filled in or permanently improved.’

“It will be observed that the public interest in public bottoms was not wholly ignored by the Butler Act, although apparently no consideration was given to ecology as presently understood. However, limited protection was given to the conservation and protection of natural resources such as oyster bars, and the public right of boating, bathing and fishing until filling actually took place, and the right to fill and thus acquire title did not extend to ‘beaches customarily used by the public as bathing beaches.’

“The Butler Act was constitutionally valid. State ex rel. Buford, Atty. Gen. v. City of Tampa et al., 88 Fla. 196, 102 So. 336.

“Apparently the Butler Act served its purpose. The development of waterfront property was phenomenal, and by 1957 had reached the point where the public interest required limitations upon the extent to which upland owners could add to their land by filling. Consequently, Chapter 57-362, Laws of Florida, was enacted. This statute makes substantial changes in the law relating to the filling of the bottoms of navigable waters so as to create dry land. The rights of the parties depend upon the proper construction of this statute.

“It is clear, and the parties agree, that the Butler Act did not create any vested interest in the owners of upland to the bottoms adjoining their upland prior to actual filling. But the Butler Act did operate to vest title to the land created by the lawful filling of such bottoms when the filling became a fact accomplished. And the Butler Act did not put any time limit upon the filling being accomplished.

“Since the Butler Act did not create any vested interest prior to actual filling, it follows that the legislature had plenary power to repeal or amend this statute insofar as it applied to unfilled bottoms.

“Chapter 57-362 was designed to, and did, withdraw the blanket right of upland owners to acquire title to adjoining bottoms between the high water line and the channel of adjacent waters. This statute (and later amendments not material here) provided much greater protection to the public enjoyment of the waters over these bottoms and much greater protection of the ecology which would be affected by filling. The need for these changes and, perhaps, even greater restrictions upon the exploitation of these public resources are not, and cannot successfully be, challenged.

“The enactment of Chapter 57-362 necessarily resulted in the curtailment of the potential development of much waterfront property and, had it been given immediate and universal application, obviously would have resulted in many hardships. In order to minimize these hardships, Chapter 57-362 contains provisions restricting its operation, only one of which is applicable here :

“‘Section 11. The provisions of this act shall not affect or apply to the construction of islands or the extension or addition to existing lands or islands bordering on or being in the navigable waters as defined in section 253.12 herein of the state which was commenced or application for permit to fill which was filed with the United States corps of engineers prior to the effective date of this act as to lands or bottoms lying between ordinary high water mark and a bulkhead line heretofore established by any county, city or other political subdivision of the state by official action of its governing body.’ ”

“The key to the problem before the court is the proper construction of this language. The phrase, ‘the provisions of this act,’ clearly includes the provision for the repeal of the Butler Act. Therefore, the Butler Act remains in force as to ‘the construction of islands or the extension or addition to existing lands or islands’ as specified in this paragraph. The conditions specified which preserve the Butler Act as to certain bottoms are two in number, one in the alternative and one specific:

“1. Prior to June 11, 1957, the effective date of Chapter 57-362, the filling must have ‘commenced’ or ‘application for permit to fill’ must have been ‘filed’ with the United States Corps of Engineers.
“2. The area affected must be between ordinary high water mark and a bulkhead line ‘heretofore’ (that is, before June 11, 1957) established.

“The language of the statutes is abundantly clear. The Butler Act is unrepealed and, therefore, in full force and effect as to ‘the extension or addition to existing lands’ with respect to which the foregoing conditions are shown to have existed June 11, 1957. Insofar as the State of Florida is concerned, it makes no difference whether a permit to fill was ever issued by the corps of engineers or the length of the permit, if issued. If application to fill a particular described parcel of bottoms had been filed before June 11, 1957, and if that parcel of bottoms were within a bulkhead line theretofore lawfully established, that particular area of bottoms was still subject to the Butler Act and was not subject to Chapter 57-362 just as clearly as if described by metes and bounds and excepted from the operation of Chapter 57-362.

“The conclusion is inescapable that the plaintiff had the right to fill any bottoms belonging to it which, on June 11, 1957, were between the high water mark and bulkhead lines theretofore established by competent public authorities and with respect to which filling had been commenced or an application for permit to fill had been filed with the United States Corps of Engineers.

“Since by admission of the parties the bottoms here involved come within these conditions , the plaintiff still has the right under the Butler Act to make the desired fill and thereby acquire title to the filled land, and the trustees have no authority by virtue of their ownership of the public bottoms to require that the plaintiff secure from them any permit before engaging in its filling operations.

“As above stated, there is not presented by the pleadings in this case any question as to the source of the fill material to be used by the plaintiff in its filling operations, and the court makes no adjudication with respect thereto.

“The trustees, by affirmative defense, have sought to interpose a rule adopted June 26, 1962, by the trustees, as follows:

“‘200-2.11 Limitation defined for exemption under Section 253.0013(2) FS. —Exemption set forth in Section 253.-0013(2) F.S. are operative only for (1) the unexpired period of the U S Army Corps of Engineers’ permit in effect June 11, 1957, or (2) the initial permit period for which the U S Army Corps of Engineers granted permit pursuant to application pending June 11, 1957, and such exemptions will not be subject to extension.’

“The trustees have no authority to adopt rules inconsistent with law, and the quoted rule is inconsistent with the law as heretofore announced. While this court has the highest respect for the personnel of the trustees, it cannot subordinate the clear intent to the statute to an obviously inconsistent rule.

“The trustees suggest that Section 11, Article X of the constitution may have some effect upon this problem, but the court is of the opinion that the legislative finding in 1921 quoted above and heretofore held to be constitutional under the Constitution of 1885, to the limited extent that it is carried forward by present statutes, is not in violation of the Constitution of 1968.

“All property and all property rights are held subject to reasonable regulation in the public interest. Numerous statutes have been enacted for the protection of the ecology of the state. Nothing in this judgment is a determination of the applicability of any statute regulating and protecting the ecology of the state or requiring permits before conducting activities which may be potentially dangerous to the ecology. Any such statutes, if applicable, would be binding upon the plaintiff to the same degree and subject to the same limitations that would exist if the plaintiff had acquired by lawful purchase from the trustees the title to the bottoms lying between the high water mark on plaintiff’s uplands and the adjoining bulkhead lines prior to the enactment of such statutes.

“There seems to be some question, not litigated here, as to a policy of the corps of engineers requiring the approval of the trustees before granting any permit for the filling of bottoms such as those here involved. To the extent that the trustees act as advisers on ecology to the federal authorities they function under federal law, and the propriety of their actions is not in issue here. However, the trustees as state officers have no authority to refuse to approve a permit proposed to be issued by the corps of engineers because of any claim of state title to the bottoms here involved. To this extent, the plaintiff is entitled to an injunction, if one be needed.

“Out of respect for a coordinate branch of government, the court will assume that the trustees will obey the law as pronounced by this court without the necessity of a formal writ, and no injunction will actually be issued unless it be made to appear that one is necessary.”

The judgment appealed is AFFIRMED.

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.

      “1. It is interesting to observe that while Section 9 of Chapter 67-862 purports to repeal § 271.01, Florida Statutes (the basic portion of the Butler Act), that repeal is followed by § 11 quoted here, so that § 11 clearly controls.

      “2. By reason of being the subject of an application for permit to fill filed with the U. S. Corps of Engineers.