author: BOYD, Justice.

text:
    Wilmer H. McDONALD, Petitioner, v. Edna Fay McDONALD, Respondent.
    No. 52050.
    Supreme Court of Florida.
    March 8, 1979.
    Louis K. Rosenbloum and Richard P. Warfield, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for petitioner.
    Paul L. Cummings, Pensacola, for respondent.
   BOYD, Justice.

We granted certiorari to review the decision of the district court of appeal, 346 So.2d 610 (Fla. 1st DCA 1977), because of conflict with Ranes v. Ranes, 311 So.2d 370 (Fla. 2d DCA 1975) and Saviteer v. McAdoo, 310 So.2d 28 (Fla. 2d DCA 1975). Art. V, § 3(b)(3), Fla.Const.

In Saviteer, a party to a divorce proceeding was awarded exclusive possession of the marital home, previously held as an estate by the entireties. After dissolution of the marriage the parties became tenants in common pursuant to statute. In holding that the trial court erred in awarding exclusive possession to one of the parties, the district court of appeal said that such an award is only proper where it takes the form of lump sum alimony or where it is awarded to the party having custody of children in order to effectuate the other party’s child support obligation. In Ranes, an award of exclusive possession of the jointly held marital home was held to be error because it did not take the form of lump sum alimony nor was it based on a child support obligation.

In the instant case the former wife was awarded exclusive possession of the marital home for a period of two years following the decree of dissolution. The children of the marriage are grown. The parties were married for twenty-two years, during which the wife has seldom been employed. Her education and skills are extremely limited.

Petitioner asserts that the award of exclusive possession was error. He also contends that the trial court erred in awarding respondent a one-half interest in the same marital home, in dividing equally the separate savings accounts of the parties, and in awarding the wife permanent alimony of $350.00 per month.

In a dissolution proceeding, the court has inherent authority to award exclusive possession of a jointly owned marital home to the party having custody of children as an incident of the other party’s support obligation. McRae v. McRae, 52 So.2d 908 (Fla.1951); Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253 (1947); Hoskin v. Hoskin, 329 So.2d 19 (Fla. 3d DCA 1976); Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975); Berger v. Berger, 182 So.2d 279 (Fla. 4th DCA 1966). The opinions in Ranes and Saviteer neglect to mention that exclusive possession can also be proper when the support obligation in question is owed to the wife alone. Banks v. Banks, 98 So.2d 337 (Fla.1957); Lange v. Lange, 357 So.2d 1035 (Fla. 4th DCA 1978); Coggan v. Coggan, 230 So.2d 34 (Fla. 2d DCA 1969). In a proper case the exclusive use and possession of marital property may be awarded as a form of rehabilitative alimony where a need has been demonstrated. Cf. Lange v. Lange, 357 So.2d 1035 (Fla. 4th DCA 1978) (special circumstance of wife’s mental illness held to justify exclusive award). The award of use and possession for two years was proper and reasonable in this case.

Having resolved the issue of the court’s authority, we turn to the petitioner’s other contentions. In essence he argues that taken together, the property division, temporary support, and permanent periodic alimony provisions of the trial court’s decree constitute an excessive provision in favor of the wife.

Because the trial court judge is in much better position than we to assess the needs and capabilities of the parties, his determinations should be upheld unless they are not supported by competent evidence, so that the provisions based thereon constitute an abuse of discretion. Shaw v. Shaw, 334 So.2d 13 (Fla.1976). Upon our review of the record, we cannot conclude that the provisions of the decree are improper using this standard.

The decision of the court below is affirmed.

It is so ordered.

ADKINS, OVERTON, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, C. J., and SUNDBERG, J., dissent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert J. BUTLER, Petitioner, v. The STATE of Florida, Respondent.
    No. 52382.
    Supreme Court of Florida.
    March 8, 1979.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., Miami, for respondent.
   PER CURIAM.

This case is remanded to the Third District Court of Appeal for clarification of its decision, 348 So.2d 676, in light of McCauley v. State ex rel. Fouraker, 273 So.2d 756 (Fla.1973).

It is so ordered.

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

BOYD, J., dissents.


author: SUNDBERG, Justice.

text:
    Ted WILLIAMS, etc., Appellant, v. Curtis LAW et al., Appellees.
    No. 53444.
    Supreme Court of Florida.
    March 8, 1979.

      E. David Tyner of Sumner, Tyner, Williams, McKnight & Ross, Dade City, for appellant.
    H. Clyde Hobby of McClain & Hobby, Dade City, and David W. Rynders, Port Richey, for appellees.
   SUNDBERG, Justice.

This cause is before us on direct appeal from an order of the Circuit Court for Pasco County, Florida, invalidating section 194.171(2), Florida Statutes (1975), as it relates to the time limit for seeking judicial review of a decision of a county Board of Tax Adjustment. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Appellees John G. Fasten and Mary B. Fasten applied to appellant, Ted Williams, property appraiser for Pasco County, for an agricultural classification for the 1976 tax year relative to land which they owned and leased for use as a dairy farm. Following a denial of their application, appellees Fasten petitioned the Board of Tax Adjustment for Pasco County, Florida, pursuant to chapter 194, for relief. On September 20, 1976, after a full hearing, the board granted ap-pellees an agricultural classification. Thereafter, on October 26, 1976, appellant Williams filed an action in circuit court pursuant to section 194.032(6)(a), Florida Statutes (Supp.1976), seeking to enjoin the board from enforcing its decision. Appel-lees filed a Motion to Dismiss for lack of jurisdiction, alleging that appellant’s suit constituted an appeal from an administrative decision of the board, which appeal was required by Florida Appellate Rule 3.2 (1962) to be filed within thirty days of the board’s final decision. The circuit court granted the motion, ruling that appellant’s suit was an appeal which was not timely filed pursuant to rule 3.2. The court further found that section 194.171(2), which provides a sixty-day time limit for instituting a civil action in circuit court to challenge a property tax assessment, violates article V, section 2(a), Florida Constitution, insofar as it attempts to extend beyond thirty days the time limit for seeking judicial review of a decision of the Board of Tax Adjustment. For the reasons hereinafter expressed, we conclude that the circuit court was in error.

The Florida Appellate Rules apply to “circuit courts in the exercise of their appellate jurisdiction.” Fla.App.R. 1.1 (1962). Therefore, if the action filed by appellant pursuant to section 194.032(6) were an appellate proceeding, appellees would be correct in their assertion that a property appraiser must seek review of a decision of the board within thirty days after it becomes final. However, we conclude that the proceeding established by section 194.-032(6) is not an appellate proceeding and, therefore, is not within the scope of the appellate rules.

For many years the circuit courts have had original and exclusive jurisdiction of all cases involving the legality of any tax assessment. Art. V, § 6(3), Fla.Const. (1968); Fla.Const. of 1885, art. V, § 11. When article V was revised in 1972, this jurisdiction was retained subject to change by general law. Art. V, § 20(c)(3), Fla. Const. Subsequent to this revision the legislature enacted section 26.012(e), Florida Statutes (1975), which provides for the continuation of this jurisdiction of the circuit courts over actions challenging tax assessments. Pursuant to these provisions a taxpayer may invoke the original jurisdiction of the circuit court, subject to the restrictions of section 194.171, to challenge an assessment decision of the county Board of Tax Adjustment. The question raised in the instant ease is whether the property appraiser has the same right to invoke the circuit court’s original jurisdiction pursuant to section 194.032(6)(a). We conclude that he does.

Much of the confusion with respect to the remedy available to the property appraiser results from the use of the term “appeal” in section 194.032(6)(a), in reference to the procedure to be utilized by the property appraiser to challenge a decision of the Board of Tax Adjustment. However, in light of the context within which the term “appeal” is used in sections 194.032(6)(a) and 194.181, Florida Statutes (Supp.1976), we conclude that the legislature intended to grant the property appraiser the right to challenge the legality of a decision of the Board of Tax Adjustment by the same means accorded the taxpayer. We look particularly to the wording of section 194.-032(6)(a) 3 which provides, in pertinent part:

If the department [of revenue] finds upon investigation that a consistent and continuous violation of the intent of the law or administrative rules by the board has occurred, it shall so inform the property appraiser, who may thereupon bring suit in circuit court against the [property appraisal adjustment board] for injunctive relief to prohibit continuation of the violation of the law or administrative rules and for a mandatory injunction to restore the tax roll to its just value in such amount as determined by judicial proceeding.

This enactment clearly contemplates that injunctive relief shall be sought by way of an original civil action rather than by appeal. Further, section 194.181, Florida Statutes (Supp.1976), provides in part:

(1) The plaintiff in any tax suit shall be:
(a) The taxpayer contesting the assessment of any tax, the payment of which he is responsible for under the law; or
(b) The property appraiser pursuant to s. 194.032.
(2) In any case contesting the assessment of any property brought by the taxpayer, the county property appraiser shall be party defendant. In any case brought by the property appraiser pursuant to s. 194.032(6)(a) 1. or 2., the taxpayer shall be party defendant. In any case brought by the property appraiser pursuant to subparagraph 194.032(6)(a) 3., [the property appraisal adjustment board] shall be party defendant.

This provision indicates that an action brought by the property appraiser pursuant to section 194.032(6) is also intended to be an original action rather than an appeal. Therefore, we conclude that the property appraiser has the right, subject to the limitations imposed by section 194.032(6) and section 194.171(2), to commence an original civil action in circuit court to challenge a decision of the county Board of Tax Adjustment.

The determination of the circuit court that the sixty-day time limit on filing an original action to challenge a tax assessment is in violation of article V, section 2(a), Florida Constitution, is necessarily erroneous in light of our interpretation of section 194.032(6). The sixty-day limit set forth in section 194.171(2) is not a time limit for filing an appeal from a decision of the Board of Tax Adjustment but, rather, constitutes a statute of limitations governing the time for filing an original action to challenge such decision. Since the legislature clearly has the authority to establish such limitations, no constitutional violation exists.

Accordingly, the order of the Circuit Court of Pasco County, Florida, dismissing appellant’s action is reversed, and this cause is remanded for further action not inconsistent with this opinion.

It is so ordered.

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

      . § 194.171(2), Fla.Stat. (1975), in pertinent part, provides:
      No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2).

      . Art. V, § 2(a), Fla.Const., in part, provides:
      The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review . .

      . Cf. In re Estate of Brown, 117 So.2d 478 (Fla.1960); Walter Denson & Son v. Nelson, 88 So.2d 120 (Fla.1956); H. K. L. Realty Corp. v. Kirtley, 74 So.2d 876 (Fla.1954).


author: PER CURIAM. ADKINS, Justice,

text:
    Mary CHERVONY, Appellant, v. NATIONWIDE MUTUAL INS. CO. et al., Appellees.
    No. 53755.
    Supreme Court of Florida.
    March 8, 1979.
    Martin E. Levine of Stabinski, Funt, Levine & Vega, Miami, for appellant.
    Harry D. Bavly of Weinstein & Bavly, Miami, and R. Fred Lewis of Kuvin, Klin-gensmith & Lewis, Coconut Grove, for ap-pellees.
   PER CURIAM.

Reversed. See Markert v. Johnston, 367 So.2d 1003 (Fla.1978).

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., concurs specially with an opinion.

ADKINS, Justice,

concurring specially.

I concur specially for the reasons set forth in my specially concurring opinion in Aubrey v. Larson, 368 So.2d 1289 (Fla. 1979).


text:
    Ruben ZAMBRANO, Appellant, v. STATE of Florida, Appellee. Ronald C. GIDDINGS, Appellant, v. STATE of Florida, Appellee.
    Nos. 53894, 54150.
    Supreme Court of Florida.
    March 8, 1979.
    Robert E. Jagger, Public Defender, and Daniel D. Eckert, Asst. Public Defender, Clearwater, for appellants.
    Jim Smith, Atty. Gen., and Charles Core-es, Jr. and Mary Jo M. Gallay, Asst. Attys. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. State v. Rodriquez, 365 So.2d 157 (Fla.1978).

ENGLAND, C. J., and BOYD, OVER-TON and ALDERMAN, JJ., concur.

ADKINS, SUNDBERG and HATCHETT, JJ., dissent.


text:
    Thomas B. AUBRY et al., Appellants, v. Barbara H. LARSON et al., Appellees.
    No. 54013.
    Supreme Court of Florida.
    March 8, 1979.
    Larry D. Beltz of McQuillan & Beltz, Bradenton, for appellants.
    Douglas P. Lawless of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota; and Charles P. Schropp of Shackle-ford, Farrior, Stallings & Evans, Tampa, for appellees.
   PER CURIAM.

Reversed. See Markert v. Johnston, 367 So.2d 1003 (Fla.1978).

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., concurs specially with an opinion.

ADKINS, Justice,

concurring specially.

I agree that the decision in this case is governed by Markert v. Johnston, 367 So.2d 1003 (Fla.1978). I did not participate in Markert and disagree with the result.

If the right to join the insurance carrier as a party defendant had been established by rule of court, the legislature could repeal the rule by general law enacted by two-thirds vote of the members of each house of the legislature. Art. V, sec. 2(a), Fla.Const. We have circumvented this constitutional right of the legislature by adopting this rule of procedure through a decision of the Court instead of exercising our rule-making authority.

When this occurs and the legislature enacts a statute contrary to case law, I believe the statute should prevail if enacted by a two-thirds vote of the legislature.

However, I am bound by the decision of my colleagues and for that reason I concur in the result therein.


text:
    Laura M. JONES, Petitioner, v. TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, Respondent.
    No. 54269.
    Supreme Court of Florida.
    March 8, 1979.

      Robert V. Romani of Farish & Farish, West Palm Beach, for petitioner.
    Edna L. Caruso, and Roy R. Watson, II, of Adams, Coogler, Watson & Smith, West Palm Beach, for respondent.
   SUNDBERG, Justice.

By petition for writ of certiorari, petitioner seeks review of a decision of the District Court of Appeal, Fourth District, reported at 357 So.2d 231 (Fla. 4th DCA 1978), which is in conflict with State Farm Mutual Automobile Insurance Co. v. Diem, 358 So.2d 39 (Fla. 3d DCA 1978). The issue here centers on the extent of uninsured motorist coverage for an insured when the policy limits of the uninsured motorist provisions of a policy equal the limits of the tort-feasor’s liability policy but the insured settles for less than the tort-feasor’s stated liability limits. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

Petitioner’s minor child died in an automobile accident on August 31, 1975. The tort-feasor’s liability insurer provided coverage in the amount of $15,000 per person and $30,000 per occurrence. Petitioner settled her claim against the tort-feasor for $10,000 because of other competing claims. Petitioner also was covered by uninsured motorist insurance in the amount of $15,000 per person and $30,000 per occurrence.

Petitioner brought an action for declaratory relief against respondent/carrier for the $5,000 difference between what she collected from the tort-feasor and the limits of her uninsured motorist policy. In the alternative she sought the entire $15,000 uninsured motorist benefits because respondent had agreed that petitioner’s damages exceeded $25,000. The District Court of Appeal, Fourth District, affirmed the grant of summary judgment to respondent, holding that uninsured motorist coverage becomes applicable only when the uninsured policy limits exceed the policy limits of the tort-feasor.

In Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978), we had occasion to construe section 627.727(1), Florida Statutes (1975), which reads in pertinent part that uninsured motorist coverage

shall be excess over but shall not duplicate the benefits available to an insured under any workmen’s compensation law, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.

363 So.2d at 1080 (emphasis supplied).

We held that where the benefits under the tort-feasor’s policy have been partially exhausted by payment of claims to persons other than the insured, then the insured is entitled to “excess over” the amount received from the tort-feasor’s carrier up to the limits of the claim or the policy, whichever is less. This is so because the “excess over” is to be measured by the amount of the tort-feasor’s coverage which is “available” to the insured. The holding applies equally to this case, where the insured settled for less than the maximum coverage under the tort-feasor’s liability policy. Consequently, petitioner is entitled to the $5,000 difference between the amount of the settlement (i. e., the amount of the tort-feasor’s liability coverage which was available to the insured) and the limits of her uninsured motorist coverage.

Accordingly, the petition for writ of cer-tiorari is granted, the decision of the District Court of Appeal, Fourth District, is quashed, and the cause is remanded to the district court with directions to remand to the circuit court for proceedings not inconsistent with this opinion.

It is so ordered.

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

      . In Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978), we noted the conflict between Diem and Jones v. Travelers Indemnity Co. of Rhode Island, 357 So.2d 231 (Fla. 4th DCA 1978), and disapproved the holding in Jones. 363 So.2d at 1081 n. 6.


text:
    ENTENMANN’S BAKERY OF FLORIDA, INC., et al., Appellants, v. James LOUGHLIN, Appellee.
    No. 54336.
    Supreme Court of Florida.
    March 8, 1979.
    Magill, Sevier & Reid, Palm Beach, and L. Edward McClellan, Jr. of Rentz, McClellan & Haggard, Miami, for appellants.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, and Edna L. Caruso, West Palm Beach, for appellee.
   PER CURIAM.

The order of the trial court, holding section 627.7262, Florida Statutes (1977), to be unconstitutional, is affirmed. See Markert v. Johnston, 367 So.2d 1003 (Fla.1978). This case is transferred to the District Court of Appeal, Fourth District, for consideration of the remaining points on appeal.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., concurs specially with an opinion.

ADKINS, Justice,

concurring specially.

I concur specially for the reasons set forth in my specially concurring opinion in Aubrey v. Larson, 368 So.2d 1289 (Fla. 1979).


author: OVERTON, Justice.

text:
    Jackie Lee MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 54588.
    Supreme Court of Florida.
    March 8, 1979.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for petitioner.

      Jim Smith, Atty. Gen., and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for respondent.
   OVERTON, Justice.

This is a petition for writ of certiorari to review the decision of the Fourth District Court of Appeal upon a certified question concerning the computation of time under the speedy trial rule. Moore v. State, 358 So.2d 1129 (Fla. 4th DCA 1978). The certified question is as follows:

FOR THE PURPOSES OF THE 180-DAY RULE, DOES THE TRIAL COMMENCE UNDER RULE 3.191(a)(3) WHEN THE INITIAL OATH IS ADMINISTERED TO A LARGE PROSPECTIVE PANEL UNDER RULE 3.300(a) OR DOES THE TRIAL COMMENCE WHEN THE PANEL IS SEATED FOR VOIR DIRE EXAMINATION.

Id. at 1131.

The District Court, in the instant case, held that a trial commences under Rule of Criminal Procedure 3.191(a)(3) when the initial oath is administered to the total jury venire without regard to the time when the oath is administered to prospective jurors and the voir dire is commenced in a specific case. This is contrary to our recent holding in Stuart v. State, 360 So.2d 406, 409 (Fla. 1978). In accordance with our decision in Stuart, we hold that under Rule of Criminal Procedure 3.191(a)(3) a trial commences when a jury panel is sworn for voir dire in a specific trial. See Hall v. State, 348 So.2d 932 (Fla. 2d DCA 1977); State v. May, 332 So.2d 146 (Fla. 3d DCA 1976), cert. denied, 339 So.2d 1172 (Fla.1976); State ex rel. Maines v. Baker, 254 So.2d 207 (Fla.1971).

The question having been answered contrary to the District Court’s holding, the decision of that court is quashed with directions that the petitioner be discharged.

It is so ordered.

ENGLAND, C. J., and SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

      . We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.


text:
    AETNA CASUALTY & SURETY CO. et al., Appellants, v. Robert G. BEANE, etc., Appellees.
    No. 54709.
    Supreme Court of Florida.
    March 8, 1979.
    Donald J. Beuttenmuller, Jr. and Steven A. Stinson of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellants.
    Cecil H. Albury of Albury, Webb & Park, West Palm Beach, for appellees.
   PER CURIAM.

The order of the trial court, holding section 627.7262, Florida Statutes (1977), to be unconstitutional, is affirmed. See Markert v. Johnston, 367 So.2d 1003 (Fla.1978). This case is transferred to the District Court of Appeal, Fourth District, for consideration of the remaining points on appeal.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., concurs specially with an opinion.

ADKINS, Justice,

concurring specially.

I concur specially for the reasons set forth in my specially concurring opinion in Aubrey v. Larson, 368 So.2d 1289, No. 54,-013 (Fla.1979).


text:
    STATE of Florida, Appellant, v. Thomas G. HOWARD, Appellee.
    No. 54884.
    Supreme Court of Florida.
    March 8, 1979.
    Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, and Steven H. Mezer, Asst. Public Defender, Clearwater, and Jack 0. Johnson, Public Defender, Bartow, for appellee.
   PER CURIAM.

Reversed. See State v. Shamrani, 370 So.2d 1 (Fla.1979).

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

HATCHETT, J., dissents.


text:
    Milton Harvey BROWN, Petitioner, v. C. J. GAYFER & COMPANY, Respondent.
    No. 54911.
    Supreme Court of Florida.
    March 8, 1979.
    George W. Estess of Kerrigan, Estess & Rankin, Pensacola, for petitioner.
    Robert P. Gaines of Beggs & Lane, Pen-sacóla, for respondent.
   PER CURIAM.

Since we find material issues of fact bearing on the existence of “probable cause,” the decision of the First District Court of Appeal, 360 So.2d 1251, is quashed and the case remanded to the trial court. City of Pensacola v. Owens, - So.2d -, No. 53,795 (Fla. Feb. 1, 1979).

ENGLAND, C. J., and ADKINS, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    In re FLORIDA RULES OF CIVIL PROCEDURE.
    No. 55134.
    Supreme Court of Florida.
    March 8, 1979.
    Richard P. Brinker, Clerk, Circuit and County Courts in and for Dade County, Miami, for petitioner.
   PER CURIAM.

In order to alleviate a crisis in record storage in several judicial circuits, Richard P. Brinker, clerk of the Eleventh Circuit and Dade County courts, has proposed changes to the Florida Rules of Civil Procedure to provide for disposal of depositions in civil matters. At Mr. Brinker’s request the Court has considered the proposals. The proposals take the form of a new rule for disposal of depositions and an amendment to the current rule for disposal of exhibits which will permit depositions proffered or admitted into evidence to be destroyed in conformance with the existing rule. Additional amendments to the current rule on disposal of exhibits, conforming it to the proposed new rule with regard to notice and the requirement of consent of the State Division of Archives, History and Records Management, are also proposed.

The proposed new rule is as follows: Rule 1.450(f). Disposal of Depositions by Clerk.
(1) Depositions Proffered or Admitted in Evidence. Depositions proffered or admitted in evidence shall be subject to disposal under the provisions of Rule 1.450(d).
(2) Unused Depositions. Depositions not proffered or admitted in evidence in a case shall be retained by the clerk until three months after judgment therein becomes final. Thereafter, the clerk, provided the written consent of the Division of Archives, History and Records Management of the Department of State, has been obtained in compliance with section 119.041, Florida Statutes, may destroy or dispose of such unused depositions after giving the parties or their attorneys 10 days’ notice of his intention to do so. The notice may be given by publication in a newspaper qualified for legal advertising and notices under section 50.031, Florida Statutes. Such depositions may be withdrawn by the appropriate party or attorney calling for them during the 10 days.

The proposed amendments to rule 1.450(d), Florida Rules of Civil Procedure, are the additions indicated below by underscoring:

(d) Disposal. The clerk shall retain exhibits introduced in evidence or marked for identification until one year after a judgment becomes final. The court may permit a party to withdraw any exhibit at any time. If an exhibit is not withdrawn within the year, the clerk, provided the written consent of the Division of Archives. History and Records Management of the Department of State, has been obtained in compliance with section 119.041. Florida Statutes, shall destroy or dispose of the exhibits after giving the parties or their attorneys 10 days’ notice of his intention to do so. The notice may be given bv publication in a newspaper qualified for legal advertising and notices under section 50.031. Florida Statutes. Exhibits shall be delivered to the appropriate party or attorney calling for them during the 10 days. Transcripts of testimony, other than depositions, are not subject to this subdivision and shall not be destroyed.

The above proposed rule and proposed amendments are hereby promulgated. Art. V, § 2, Fla.Const. The clerk of the Supreme Court is directed to notify all interested parties of this proceeding. Responses received on or before June 1, 1979 will be considered by the Court. Absent further action by the Court, the proposed rule and amendments are adopted effective 12:01 A.M., July 2, 1979.

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


author: PER CURIAM. BOYD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Thomas L. WHITE, Respondent.
    No. 55215.
    Supreme Court of Florida.
    March 8, 1979.

      Steven D. Merryday, Bar Counsel, Tampa, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for complainant.
    Eugene W. Harris of Harris & Seacrest, Lakeland, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Thomas L. White, a member of The Florida Bar, is before us on complaint of The Florida Bar, report of the referee, and petitions for review by White and by The Florida Bar.

The Florida Bar filed a complaint against respondent, charging that respondent purchased real property from his client in violation of the Code of Professional Responsibility because (1) the price was inadequate, (2) he failed to make complete disclosure to his client, (3) a conflict of interest existed, (4) he intentionally failed to disclose fully all pertinent facts known to him, and (5) he placed his personal interest ahead of his client. The complaint further charged that respondent charged a clearly excessive fee for handling the estate of his former client.

The referee made the following findings of fact as to White’s misconduct:

FINDINGS OF FACT AS TO COUNT
I: The following findings of fact are made from the evidence presented as to Count I:
Mr. D. V. Farnsworth, a client of Respondent, Thomas L. White, advised Respondent that he wanted to sell his land in Polk County, Florida. Respondent asked what price he was asking for the land, and the client advised Respondent that he wanted Five Hundred ($500.00) Dollars per acre. Thereafter, Respondent viewed the land with the client, and subsequently advised the client that he was interested in purchasing his land for Five Hundred ($500.00) Dollars per acre, but would not be able to handle the entire 220 acres himself for financial reasons, and would want to get someone to join with him in the purchase. Respondent contacted one William S. Smith, a local realtor, and asked him if he were interested in participating. Smith was interested and also wanted to bring in the third participant, a Mr. Nafziger, another realtor in nearby Davenport.
The three agreed to purchase the property at Five Hundred ($500.00) Dollars per acre, but at no time did the Respondent ever advise his client, Mr. Farns-worth, that the land might be worth more than Five Hundred ($500.00) Dollars per acre or that Mr. Farnsworth should either seek an independent appraisal, or independent legal advice.
Subsequent thereto, the Respondent and the two realtors purchased the property after Respondent prepared a Trust Agreement for the three individual purchasers, apparently without disclosing to the client, Mr. Farnsworth, the identity of the other two participants. The evidence offered by Respondent is that the client, Farnsworth, (deceased at the time of the hearing) made no inquiry and was not particularly interested in knowing who the purchasers were.
The evidence indicates the value of the land at the time in question was uncertain and speculative. The testimony ranged from a low of Three Hundred ($300.00) Dollars per acre to a high of Eight Hundred ($800.00) Dollars. I find that the reasonable value at the time and place was approximately Five Hundred ($500.00) Dollars to Six Hundred ($600.00) Dollars per acre, close to the price (Five Hundred ($500.00) Dollars per acre) actually paid by Respondent. It is apparent that the client might have obtained a higher price had he been more determined to do so with negotiations or by looking for other buyers, although it is equally apparent that he might have obtained less, or even been unable to make a sale at that time. The evidence indicates that the 220 acres in question were far from being ideal property, as approximately 65% to 70% of it was low marshland.
The evidence establishes that Respondent, on purchasing the property, took title in the name of his wife, R. S. White, as Trustee, without disclosing to Farns-worth the identity of the other purchasers or the purpose of the trust. No finding of fraud or deliberate concealment was susceptible from the evidence. It is my finding that it was more a lack of communication or perhaps even lack of concern on the part of the Respondent for the client. Respondent appeared to be oblivious to the fact that as an attorney he had any ethical or legal obligation to the client, Farnsworth, once the Agreement to Purchase had been entered into other than to pay the price and live up to the terms of the agreement. At the same time I find no overt intent to defraud or any dishonest motive apparent.
There arose a conflict of interest almost of necessity with Respondent’s purchase of the property while at the same time representing his client, the seller. This manifested itself in the financing agreement, where Respondent, in the interest of his client, recommended and consummated the sale on the basis of an installment sale with 29% down and the balance in five (5) equal annual installments for income tax purposes, while at the same time in his own interest and against the interest of his client, put in the purchase money note a prepayment clause permitting Respondent and his two co-purchasers to prepay the note anytime. Further Respondent did in fact prepay the note the following year with alleged adverse tax consequences to the client or the client’s estate. The client died in June 1972 following the sale in April 1972. The evidence is susceptible of a finding that the client was in ill health, fairly old, and anxious to liquidate his property prior to his death so that the monies could be passed to his widow without the likelihood of a will contest. As a practical matter, this did not seem a valid reason legally, since if the will were properly drawn and executed, the likelihood of a contest would have been either minimal or at least the likelihood of success of a will contest would have been minimal.
I find that the Bar failed to prove that any actual adverse tax consequences ensued as a result of the prepayment of the note. The expert testimony offered by the Bar and the expert testimony offered by the Respondent were conflicting and susceptible of the conclusion that the tax consequences were far from clear and ranged from a maximum adverse consequence of Two Thousand Four Hundred ($2,400.00) Dollars additional tax to no adverse tax or only Fifty ($50.00) Dollars additional tax, depending on the variable assumptions of the witness. In either event, the actual fact is uncontroverted that IRS has not even called upon the estate or the widow to pay any of the tax, much less any interest or penalty, and the expert testimony strongly supports the finding that the likelihood of the estate or client having to ever pay any extra tax at this late date is remote. Therefore, I find that any adverse tax consequence is one (1) doubtful and two (2) more theoretical than real.
FINDINGS OF FACT AS TO COUNT II: Count II is basically for charging a clearly excessive fee for handling a minimal estate in which there were no probate assets. The evidence clearly established that the fee in the amount of Three Thousand Seven Hundred Fifteen Dollars ($3,715.00) was in fact charged and paid.
The evidence strongly indicates that the amount of fee was excessive; however, it is a more difficult question as to whether the fee was “clearly excessive” to the extent that it warrants disciplinary action. This is in part caused by two factors: (1) The client has never complained that the fee was excessive, and even at the final hearing testified that she had never complained, and if the fee “was legal”, she had no objection; (2) Respondent’s records were inadequate to determine how much time or work he really did expend on behalf of the client. Respondent’s testimony was that he estimated that he had put in approximately forty (40) hours for related work. I do not find this realistic or creditable. The evidence did not reveal any legal work of any particular significance, difficulty, or value being performed; at most a series of office conferences, some claimed legal research that was not plausible, and nominal probate work. Clearly under any view of the evidence, the fee was grossly excessive. In my opinion the fee was excessive to the extent that it was clearly excessive under the circumstances as to warrant disciplinary action.

As to the conflict of interest charge, the referee recommends that respondent be found guilty of violating DR 5-101(A) and DR 5-104(A) and, as to the attorney’s fee charge, that respondent be found guilty of violating DR 2-106. The referee recommends that respondent be suspended from the practice of law for a period of two months with automatic reinstatement.

After review of the record, report of the referee, and briefs of the parties, we conclude that the referee’s findings are supported by clear and convincing evidence, and we approve the findings and recommendations of the referee.

Accordingly, Thomas L. White is hereby suspended from the practice of law for a period of two months, effective April 9, 1979, with automatic reinstatement on June 8, 1979. White is further directed to pay the costs of these proceedings in the amount of $4,598.97.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

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

BOYD, Justice,

concurring in part and dissenting in part.

I agree that the referee’s findings of fact and his recommended finding of disciplinary violations are supported by the evi-deuce. Under all the circumstances of the case, however, I do not believe that a suspension of the respondent from his livelihood is warranted. I would limit the discipline to a public reprimand and a requirement that the respondent bear the costs of these proceedings.

      . DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
      (A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.

      . DR 5-104 Limiting Business Relations with a Client.
      (A) A lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.

      . DR 2-106 Fees for Legal Services.
      (A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
      (B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fée include the following:
      (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client.
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.


text:
    THE FLORIDA BAR, Complainant, v. Michael B. WERNER, Respondent.
    No. 56030.
    Supreme Court of Florida.
    March 8, 1979.
    Paul A. Gross, Branch Staff Counsel, Miami, for complainant.
    No appearance for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On January 29, 1979, The Florida Bar filed its Petition alleging:

1.On November 7, 1978 the Eleventh Judicial [Circuit] Grievance Committee “G” filed its report with The Florida Bar finding probable cause in Case No. 11G76006. In that report the Committee found that Respondent, a title insurance policy writing agent, issued title insurance policies without first excluding existing mortgages. In addition, the Respondent received a large sum of money from a lender and he disbursed the money to the borrower without first obtaining a release for an existing mortgage. This resulted in a civil law suit which was settled between the parties.
2. On January 3, 1979 Respondent, Michael B. Werner, submitted to The Florida Bar his Conditional Guilty Plea.
. Respondent agrees to a Public Reprimand.
3. By his plea Mr. Werner admitted that he violated Disciplinary Rule 6-101(A)(3), neglect of a legal matter entrusted to him.
4. On January 18, 1979 the Board of Governors of The Florida Bar approved the Conditional Guilty Plea.

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, Michael B. Werner, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this opinion shall serve as the public reprimand to Respondent. Costs in the amount of $100.00 are hereby taxed against the Respondent.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, HATCHETT and ALDERMAN, JJ., concur.


author: ADKINS, Justice.

text:
    STATE of Florida, on the relation of the CITY OF POMPANO BEACH, a Municipal Corporation, Relator, v. Gerald A. LEWIS, as Comptroller of the State of Florida, and Harry L. Coe, Jr., as Executive Director of the Department of Revenue of the State of Florida, Respondents.
    No. 52377.
    Supreme Court of Florida.
    March 15, 1979.

      Donald C. Roberge and Marion J. Radson, Pompano Beach, for relator.
    William L. Lyman, Asst. Gen. Counsel, Tallahassee, for respondents.
   ADKINS, Justice.

By Petition for Writ of Mandamus, the City of Pompano Beach (hereinafter referred to as the City) seeks an order requiring the Comptroller to remit the sum of $15,000 which was withheld from the City’s share of the state revenue sharing trust fund. Section 218.20 et seq., Florida Statutes. The alternative writ was issued by this Court and the Comptroller has filed his return. The City asks for a peremptory writ notwithstanding the return. We have jurisdiction, as the alternative Writ of Mandamus was directed to a state officer. Article Y, Section 3(b)(5), Florida Constitution.

This sum of $15,000 was paid from the revenue sharing trust fund for municipalities under the requirements of Chapter 77-490, Laws of Florida, an Act “for the relief of Miss Alice Murray”. The Act reads as follows:

WHEREAS, on or about 9:30 p. m. on March 24, 1974, at a carnival held on N.W. 6th Street in Pompano Beach, Florida, a riot began that spread through the area, and
WHEREAS, Miss Alice Murray was stopped in her car at the intersection of N.W. 6th Street and N.W. 6th Avenue, one block from the carnival at 10:30 p. m., and
WHEREAS, a group of rioters at the intersection stoned Miss Murray’s car, breaking its windows and hitting Miss Murray several times with rocks, and
WHEREAS, after Miss Murray was rescued by the police and taken from the scene, the mob overturned and set fire to the car totally destroying it, and
WHEREAS, Miss Murray sustained lacerations and a skull fracture which resulted in permanent brain damage and affected her speech and the use of her right hand, and
WHEREAS, Miss Murray incurred expenses for hospitalization, medical treatment and medicines for her injuries, and
WHEREAS, Miss Alice Murray is permanently disabled as a result of her injuries, and
WHEREAS, the law enforcement agencies, Pompano Beach Police Department, Broward County Sheriff’s Department and Department of Highway Patrol, were negligent in failing to take adequate precautions to warn and protect Miss Murray and other citizens in the area from a known danger, and
WHEREAS, the State of Florida has a moral obligation to compensate Miss Murray because she was an innocent victim of the violent crime, and
WHEREAS, the damages sustained by Miss Murray are claimed to be $305,697, and it is known that she has no recourse except to the Legislature, NOW, THEREFORE,
Be It Enacted by the Legislature of the State of Florida:
Section 1. The facts stated in the preamble of this act are found and declared to be true.
Section 2. The sum of $15,000 is appropriated out of funds in the revenue sharing trust fund for municipalities scheduled for distribution to the City of Pompano Beach for fiscal year 1977-1978, to be paid to Miss Alice Murray as relief for injuries and damages sustained.
Section 3. The Comptroller is directed to draw his warrant in favor of Miss Alice Murray in the sum of $15,000 upon funds in the revenue sharing trust fund for municipalities in the State Treasury and the State Treasurer is directed to pay the same out of such funds.

The City received monthly payments from the revenue sharing trust fund. The warrant received by the City for the month of July 1977 was reduced in the amount of $15,000. The City then brought this Original Proceeding in Mandamus to require the Comptroller to issue a warrant for this amount. The City contends that an Act of the Legislature which makes an appropriation of specific funds to an individual from the revenue sharing trust fund is a special law within the purview of Article III, Section 10, Florida Constitution, requiring pri- or publication of notice or provision for referendum. We agree.

Article III, Section 10, Florida Constitution, provides as follows:

“SPECIAL LAWS No special law shall be passed unless notice of intention to seek enactment thereof has been published in the manner provided by general law. Such notice shall not be necessary when the law, except a provision for referendum is conditioned to become effective only upon approval by vote of the electors of the area affected.”

Article X, Section 12(g), defines a “special law” as follows: “ ‘Special law’ means a special or local law”.

In Dickinson v. Board of Public Instruction of Dade County, 217 So.2d 553 (Fla. 1968), this Court held constitutionally invalid an Act which directed payment of compensation to an individual out of funds specifically appropriated to a county because the Act was passed without prior publication of notice or referendum. The Court considered whether Chapter 67-677, Laws of Florida, 1967, which attempted to compensate a father for the wrongful death of his child and which directed the State Comptroller to draw a warrant “upon funds in the State Treasury due the Board of Public Instruction of Dade County” was a local (special) law. This Court held that said Act was a local (special) law within the contemplation of Article III, Section 21, Florida Constitution (1885) carried forward by Article III, Section 10, Florida Constitution (1968). This Court states at 217 So.2d 554:

“Chapter 67-677, supra, was a local law within contemplation of Fla.Const. art. Ill, Sec. 21, F.S.A. It was also a special law because it related to a particular person in connection with a specific situation in which that person was involved. It was also a local law because it affected only Dade County and made an appropriation out of specific funds due to the schools of that county only.” (citation omitted).

In considering a similar Act in Dickinson v. Bradley, 298 So.2d 352 (Fla.1974), this Court distinguished Dickinson v. Board of Public Instruction of Dade County, supra, on the basis that the Act in Bradley required payment out of the general funds of the state, and in the course of its opinion, stated the rationale underlying the notice requirement for special legislation as follows:

“The purpose of requiring a notice of intention to be published in special legislation is to apprise the people in the locality to be particularly affected of such proposal so that those interested may take steps to oppose its enactment. Such is not the case here as this Act does not appropriate the funds of any locality.” 298 So.2d at p. 354.

The appropriation in Chapter 77-490, supra, was not from general revenue funds, so Dickinson v. Board of Public Instruction of Dade County, supra, is controlling.

A statute relating to particular persons or things or other particular subjects of a class is a special law. Carter v. Norman, 38 So.2d 30 (Fla.1948). Chapter 77-490 is a special law because it relates to a particular person in connection with a specific situation in which that person was involved. It is also a local law because it affects only one municipality and makes an appropriation of special funds due a municipality from the revenue sharing trust fund. Notice of Intention to seek enactment of this law was not published nor was the law conditioned on a referendum. These are constitutional requirements (Art. Ill, Section 10, Florida Constitution) for the valid enactment of a special or local law.

For this reason we hold that Chapter 77-490, Laws of Florida is unconstitutional and a peremptory Writ of Mandamus should issue requiring the payment of the $15,000 to the City.

We assume that a constitutional officer will perform his duty and therefore refrain from issuing a formal Writ directed to the Comptroller.

It is so ordered.

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


author: PER CURIAM. ENGLAND, Chief Justice, SUNDBERG, Justice,

text:
    STATE ex rel. CITY OF HOLLYWOOD, a Municipal Corporation, Petitioner, v. Honorable Bill GUNTER, as Insurance Commissioner and Treasurer, State of Florida, Respondent.
    No. 54523.
    Supreme Court of Florida.
    March 15, 1979.
    Sherman Bennett Mayor, City Atty. and James A. Thomas, Deputy City Atty., Hollywood, for petitioner.
    Donald A. Dowdell, Tallahassee, for respondent.
   PER CURIAM.

In original proceeding in mandamus the petitioner, City of Hollywood, has alleged that chapters 175 and 185, Florida Statutes, authorized petitioner to assess against insurers a tax on premium receipts collected on insurance policies issued each year insuring property located within the city of Hollywood; that petitioner has assessed the tax; that respondent insurance commissioner and treasurer of the State of Florida has paid the tax money collected for the 1976 calendar year into the insurance commissioner’s regulatory trust fund; that $139,-393.86 has been paid under chapter 175, Florida Statutes, and $173,631.51 has been paid under chapter 185, Florida Statutes, for deposit in the insurance commissioner’s regulatory trust fund; that the respondent has refused to issue certification to the state comptroller to remit warrants for the above sums of money in the regulatory trust fund. Petitioner seeks a writ of mandamus requiring the insurance commissioner and treasurer to issue this certification to the comptroller.

An alternative writ, or order to show cause, was issued and the respondent has filed his response to the order to show cause.

After an examination of the pleadings, and having heard oral argument, the Court finds that the petitioner has shown a clear legal right to have the insurance commissioner and treasurer issue the certification. Petitioner has a clear legal right to a remittance of the tax money and respondent has a clear legal, ministerial duty to certify the remittance.

We therefore conclude that the response to the alternative writ does not present a defense to the prima facie case made by the petition for writ of mandamus and that a peremptory writ of mandamus should be issued. We withhold the issuance of a formal writ in full confidence that the insurance commissioner and treasurer will issue the necessary certification in accordance with the law as herein set forth.

It is so ordered.

ADKINS, BOYD, OVERTON and HATCHETT, JJ., concur.

ENGLAND, C. J., dissents with an opinion.

SUNDBERG, J., dissents with an opinion, with which ENGLAND, C. J. and ALDERMAN, J., concur.

ENGLAND, Chief Justice,

dissenting.

I concur with Justice Sundberg that this Court’s authority does not extend beyond a directive requiring respondent to exercise his discretion by making a determination as to the City’s compliance or non-compliance with the applicable statutes. I would amplify that directive, however, to make clear that respondent may not, when exercising his discretion, take into account the declaratory proceeding now pending in which the validity of certain 1976 amendments to the City’s retirement plans for firemen and police officers is being challenged. Respondent has never been made a party to that suit and has, I believe, improperly withheld the exercise of his statutory responsibility to pass on the validity of the City’s plans pending the outcome of that litigation.

SUNDBERG, Justice,

dissenting.

I must respectfully dissent from the majority’s conclusion that a peremptory writ of mandamus should issue to the respondent requiring him to issue his certification to the Comptroller for payment of funds from the Insurance Commissioner’s Regulatory Trust Fund. I do not deem certification for payment by the Insurance Commissioner pursuant to the statutory scheme of chapters 175 and 185, Florida Statutes (1977), to be a ministerial act on his part which can be enforced through proceedings in mandamus. Certification of compliance is an act involving discretion or judgment on the part of the respondent. Consequently, petitioner has no clear legal right and respondent has no clear legal duty to certify. Fasenmyer v. Wainwright, 230 So.2d 129 (Fla.1969); State v. Cochran, 114 So.2d 797 (Fla.1959); DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957); State v. Gamble, 339 So.2d 694 (Fla.2d DCA 1976).

However, by the same token, respondent is statutorily obliged to make a determination of compliance of petitioner’s plans for the years in question. Chapters 175 and 185 impose a clear legal duty upon him to make such a determination. It is apparent to me that the Insurance Commissioner has failed and refused to make a determination of compliance or noncompliance. He may not lawfully refrain from performing this statutory duty. State v. Kanner, 152 Fla. 400, 11 So.2d 889 (1943); State v, Cornelius, 100 Fla. 292, 129 So. 752 (1930); City of Coral Gables v. Sakolsky, 215 So.2d 329 (Fla.3d DCA 1968). Accordingly, I would cause to be issued a peremptory writ of mandamus directing the respondent to make a determination that the plans either do or do not comply with the requirements of chapters 175 and 185, Florida Statutes (1977). If he determines that the plans comply for the years in question, he must then issue his certification for payment. If he makes a determination that they do not comply, petitioner may seek appropriate review of that determination.

ENGLAND, C. J., and ALDERMAN, J., concur.


text:
    THE FLORIDA BAR. In re PETITION TO AMEND the BY-LAWS UNDER the INTEGRATION RULE OF THE FLORIDA BAR (FLORIDA DESIGNATION PLAN).
    No. 54966.
    Supreme Court of Florida.
    March 15, 1979.
    Barry R. Davidson, Miami, Chairman, Designation Coordinating Committee, and Rayford H. Taylor, Designation Director, Tallahassee, for petitioner.
   PER CURIAM.

This matter is before us on petition of The Florida Bar to amend article XVII of the bylaws under the Integration Rule which relates to the Designation Plan of The Florida Bar. The Bar suggests that the right to designate general practice, without fulfilling certain designation requirements, be deleted; that a requirement that a member accumulate a specified minimum number of hours of continuing legal education before becoming eligible to designate be added; that a restriction on the accumulation of continuing legal education credit which counts towards renewal of one’s designation to no more than twenty hours in each area in one year be added; that a provision which would immunize The Florida Bar staff and Bar committee members from suit for any conduct in the course of their official duties in connection with the administration of this plan be added; and that the form of notice to the public be modified.

We approve the recommended revisions to the Designation Plan with one exception, i. e., the adoption of the provision relating to immunity of The Florida Bar staff and Bar committee members. We find such proposal to be unnecessary and inadvisable at this time.

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

ARTICLE XVII

FLORIDA DESIGNATION PLAN

SECTION 1. DESIGNATION OF AREAS OF PRACTICE. In accordance with the terms of this Article, a member may publicly designate the areas in which he practices law. Tho certificate issued by this cour-t authorizing one-to-bccomo a-member of The Florida — Bar carries with it-the authorization to engage in tho general practice of law and the right to — so specify continues as long as such licensee-is a member in good standing of The Florida Bar and such authorization is -m-addition-to- any spe-oialty. — Provided, howovor, that any mom ber of — The Florida Bar, three years or more after being admitted, may become a registered gonoral practitioner upon otherwise complying with the bylaws herein relating to specialization, after which such registered-general practice will be treated as-a designation;

SECTION 3. AREAS OF PERMITTED DESIGNATIONS.

(a) A member in good standing of The Florida Bar may not designate an area of practice unless the area has been approved by the Board, provided, however, as stated in Section 1, admission to The Florida Bar authorizes the-licensee to designate that-ho is-a-genoral practitioner in addition to-any specialty which may thereafter be selected and approved. The Board may approve a particular area of practice on its own motion or upon the request of any member if it finds that the area:

(1) Has not already been approved under a different description;

(2) Is a generally accepted area of practice;

(3) Is described in dignified and ethically appropriate terms.

(b) The areas of practice which have already been approved are listed on Schedule A. Schedule A may be amended as frequently as necessary to add or delete areas approved by the Board.

(c) If a member wishes to designate an area which has not been approved by the Board, he shall include in his application for permission a request that the area of practice be approved. The Board shall consider the request before it takes action on the member’s application for permission.

SECTION 4. ELIGIBILITY FOR PERMISSION TO DESIGNATE AREAS OF PRACTICE.

(a)Except as provided in subsection (b), and (c) and Section 3(a), (d), a member shall in good standing of The Florida Bar may be eligible for permission to designate areas of practice only if at the time he files his application: (11 he has been engaged in the practice of law for at least three years and if during the three years preceding his application for permission he has had substantial experience in each area of practice listed in the application: and (2) he has accumulated at least the minimum amount of approved continuing legal education set out below in each area sought to be designated:

a. Ten hours if the application is filed on or before December 31. 1979,

b. Twenty hours if the application is filed on or after January 1. 1980. but not later than December 31. 1980.

c. Thirty hours if the application is filed on or after January 1. 1981.

(b) If the Board finds that a member who has not engaged in the practice of law in an area for three years preceding his application but has had specialized postgraduate education or concentrated speoial-ized experience in a particular area of practice and that the experience is equal to or greater than the experience he would have gained in that area from three years of practice, and he has accumulated the minimum amount of approved continuing legal education required under Section 4(a¥2). the Board may waive the requirement of subsection (a) Section 4(a¥ll and permit him to designate that area.

(c) If the Board finds that a member has had at least three years specialized substantial experience or postgraduate education in an /area of practice and that the experience or education is not unreasonably remote, but that due to extenuating circumstances the member has not had substantial experience in the area during the three years preceding his application, and the member has accumulated the minimum amount of approved continuing legal education required under Section 4ia)(2), the Board may waive the requirements of subsection.(a) Section 4(a)(1) and permit him to designate that area.

(d) A member applying for permission to designate General Practice who has not been a member in good standing of The Florida Bar for the three years preceding his application, but who has accumulated the minimum amount of approved continuing legal education required under Section 4(a)(2h may designate General Practice.

(4) {§) A member shall not be eligible to designate more than three areas of practice at any one time, in-addition to the designa ■ tion as a-general praetitioneft . •

SECTION 9. DURATION AND RENEWAL.

(b) A member shall be eligible to renew his right to designate an areas of practice only if during the preceding three-year period he has had substantial experience during the three years preceding the renewal application and he has devoted at least 30 hours, of which only a maximum of 20 hours may be accumulated for credit in any one of the preceding three years, to approved continuing legal education in each of the areas for which renewal is sought;. provided, however, fFor good cause shown, The Florida Bar the Board may waive all or any part of such requirement.

SECTION 10. CONTINUING LEGAL EDUCATION.

(a) Continuing legal education courses offered — by^-The—Flerida^-Bar which are designed to enhance the proficiency of a designated attorney in a particular area of practice shall qualify as approved courses hereunder. The Board shall determine the number of hours credit to be given for each such course and the designated area entitled to credit for each course.

SECTION 11. PUBLIC NOTICE.

(a) The Florida Bar may cause a public notice to be promulgated where and when it deems necessary, including, for example, telephone directory yellow pages, in substantially the following form:

NOTICE

For the General Information-of the Public

Attorneys who have practiced for three years or-more and who, during-4he immedi-

ately-preceding throe years, have had substantial experience in a designated area of legal practice are permitted,-if they-so desire, to inform the public of not more than three areas of the-law in which they prac tice,-in-addition to the right of any-attornoy to engage in the general practice of the law

Such-listing POES NOT MEAN that such attorney has been-certified-by any person or group as an “expert” in any area of — law, nor does it mean that such- attorney is any more expert or competent than any-ether attorney

FOR THE GENERAL INFORMATION OF THE PUBLIC

ATTORNEYS LISTING AREAS OF PRACTICE IN THE YELLOW PAGES HAVE NOT BEEN CERTIFIED BY THE FLORIDA BAR AS HAVING ANY MORE COMPETENCE IN THESE AREAS THAN ANY OTHER ATTORNEY.

ALL PERSONS ARE URGED TO MAKE THEIR OWN INDEPENDENT INVESTIGATION AND EVALUATION OF ANY ATTORNEY BEING CONSIDERED.

This notice published by The Florida Bar, Telephone A.C. 904/222-5286, Tallahassee, Florida 32304.

SCHEDULE A

(Amended and Alphabetized by Virtue of July 1978 Board of Governors Meeting.)

Securities Law

Administrative and Governmental Law

Admiralty

Antitrust and Trade Regulation Law

Appellate Practice

Antitrust

Aviation Law

Bankruptcy

Collections

Corporation and Business Law

Criminal Law

Environmental Law

Estate-Planning and Administration

Marital and Family Law

General Practice

Immigration and Naturalization

International Law

Environmental Law

Consumer Law

Labor Law

Marital and Family Law

Patent, Trademark and Copyright

Real Property Law

Securities

Taxation

Trial Praetiee

Trial Practice — General

Trial Practice — Commercial

Trial Practice — Personal Injury and Wrongful Death

Wills. Estates and Estate Planning

Workmen’s Compensation

Administrative and Governmental Law

Registered General Practice

Personal Injury and-Wrongful Death

Immigration and-Naturalization

SCHEDULE B

1. Action under Section 6 on applications for permission filed by individual members provided the applications do not involve requests for waivers under Ssubsec-tions (b) and or (c) of Section 4.

3. Issuance of letters of permission under Section 6 and SubSection 9(c).

5. Maintenance of list of members required by Subsection (e) of Section 12(e).


author: LETTS, Judge.

text:
    F. M. C. CORPORATION, Petitioner, v. Joe Willie CHATMAN, Respondent.
    No. 78-1865.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    Rehearing Denied April 18, 1979.
    J. Craig Corbett, of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Orlando, for petitioner.
    David M. Hammond, of Meyers, Mooney & Adler, P. A., Orlando, for respondent.
   LETTS, Judge.

This petition for certiorari which we treat as an appeal from a non-final order, results from a holding by the trial judge that the appellee “had shown good cause in writing why the action should not be dismissed.” We reverse.

In the case at bar there had been no record activity for over 16 months when the appellant filed its motion to dismiss for lack of prosecution pursuant to Rule 1.420(e) which states:

(e) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.
Committee Note: 1976 Amendment. Subdivision (e) has been amended to prevent the dismissal of an action for inactivity alone unless one year has elapsed since the occurrence of activity of record. Non-record activity will not toll the one year time period.

The appellant first maintains that this Rule, as amended on January 1, 1977, mandates dismissal after one year, with no exceptions. To this end it cites Sainer Constructors v. Pasco County School Board, 349 So.2d 1212 (Fla.2d DCA 1977). We cannot deny that the Second District apparently so held, however, we must stop short of complete agreement, for to do so would render the excerpt from the rule “. . . unless a party shows good cause . . . .” mere surplusage. Accordingly while we agree that activity not of record is insufficient by itself, good cause may still be available if there exists other explanations amounting to something more than mere contacts between the litigant and potential witnesses. See Shields v. Moore, 352 So.2d 139 (Fla.4th DCA 1977).

Adapting this rationale to the case at bar we find that the affidavit detailing the non-record activity merely reflects telephone calls, conférences and letters between the plaintiff’s attorney, his client and potential witnesses, without any contact with the opposing party such as we required in Daurelle v. Beech Aircraft Corp., 341 So.2d 204 (Fla.4th DCA 1977), cert. den. 354 So.2d 980 (Fla.1977).

Admittedly there was one very compelling reason brought out in the affidavit, namely that the statute of limitations had run in the interim. We have every sympathy for such a dire happening, but are convinced that this is not the kind of good cause the rule envisages. Dade County v. Moreno, 227 So.2d 548 (Fla.3d DCA 1969). To us, good cause must include contact with the opposing party and some form of excusable conduct or happening which arises other than by negligence or inattention to pleading deadlines. In the case before us there may have been extensive non-record conferences with a “. . . necessary and vital expert witness,” but such do not prevent, or hinder, compliance with the rules. All this being so, while recognizing that the result is harsh, we must reverse the trial judge and direct him to enter a judgment in accordance herewith.

REVERSED AND REMANDED.

CROSS and MOORE, JJ., concur.


author: PER CURIAM. MILLS, Judge,

text:
    A. W. PARRAMORE, Jr., Appellant, v. Lillian M. PARRAMORE, Appellee.
    No. JJ-462.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1978.

      Steven H. Gray of Green, Simmons, Green & Hightower, Ocala, for appellant.
    Kevin K. Broderick of Wendel, Broderick & Chritton, Lakeland, for appellee.
   PER CURIAM.

By this appeal from a final judgment in an action for dissolution of marriage the husband seeks reversal of that provision by which the trial court held the wife to be a tenant in common as to certain real property which had been gratuitously deeded to the husband by his father prior to the marriage but which had thereafter been deeded by the husband to himself and his wife (appellee) as tenants by the entireties.

In 1953 appellant’s father suffered a heart attack. In 1955 he deeded to appellant the real property which is herein involved “to keep it out of probate”. Appellant’s father died in 1957. The validity of the transaction between appellant and his father is not an issue here. Appellant married appellee on January 26, 1958. On August 27, 1959 appellant executed a deed conveying the subject property to himself and his wife (appellee) as tenants by the entireties. The parties lived on the land during two three-month intervals and thereafter on weekends. The wife aided in repairing a log cabin located on the property and she helped her husband seed the land. They also hunted there together. (We do not, however, consider the short periods of residence, repairing of the cabin, seeding the land nor hunting thereon as material to our disposition of the issue here presented.)

In the dissolution proceeding the wife claimed an undivided one-half interest in the land. The husband, on the other hand, claiming a “special equity” asserted entitlement to the entire property. Appellant-husband testified that he had deeded the property to himself and his wife as tenants by the entireties “to keep it out of probate” and that he had not intended an outright gift. The wife was equivocal in her testimony but testified that she thought that he had put it in her name “for love”. There was no evidence by either party as to any demonstration of intent by statement or otherwise at the time of the execution and delivery of the deed. The trial judge held in the final judgment here appealed that the property was held as a tenancy by the entireties and that upon dissolution it was owned by the parties as tenants in common.

Both parties cite Ball v. Ball, 335 So.2d 5 (Fla.1976). In that case our Supreme Court said:

“We begin our resolution of these conflicting decisions with the premise that, in the absence of any showing by either spouse in the marriage dissolution proceeding as to why one should be awarded more than an equal proportion of real property held as tenants by the entireties, record title speaks for itself. The division of property in these cases, which will encompass the majority of situations, will be equal between the spouses. If property is to be divided equally, whether the division is to be effected before, after or concurrent with the dissolution decree, no judicial action is required because the law will convert that entireties tenancy to a tenancy in common as soon as the marriage is dissolved. * * * ” (335 So.2d at page 7)

Sub judice the subject property was, as above recited, held as tenants by the entire-ties. However, the author of Ball v. Ball went on to say:

“The premise that record title bespeaks an equal division is, of course, only the starting point for a property division. Either spouse has the right to attempt to establish a ‘special equity’ in the realty by reason of his or her extraordinary contribution toward its acquisition, either financially or through personal industry and service to the other party. The other party, of course, can negate the attempted showing or affirmatively attempt to show that a gift was intended. * * * [W]e hold that a special equity is created by an unrebutted showing * * * that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship. In these cases the property should be awarded to that spouse, as if the tenancy were created solely for survivorship purposes during coverture, in the absence of contradictory evidence that a gift was intended.” (335 So.2d at page 7)

It will be noted that the Supreme Court, in the opinion from whence the above quotation was taken, refers to “consideration for property”. Sub judice there was no consideration paid by appellant for the subject property as it was conveyed to him gratuitously by his father. Whether or not that fact, plus the fact that the subject property was acquired by appellant prior to the marriage whereas the property involved in the Ball case was acquired after the marriage, constitutes a valid distinction we need not now decide because we conclude the principle of that case to be inapplicable here.

The deed by which the subject property was conveyed to the parties hereto as tenants by the entireties was, as already recited, executed on August 27,1959. That date was approximately nine years prior to the change in the Constitution upon which our Sister Court of the Second District bottomed its opinion when the Ball case appeared there (Ball v. Ball, 303 So.2d 32 (Fla.2nd DCA 1974)) and eighteen years prior to that decision being rendered in the Supreme Court of Florida. At the time that deed was executed, delivered and recorded the law of Florida was to the effect that by so doing appellant was presumed to have intended a gift of an entireties’ interest to his wife. All citizens are presumed to know the law. The evidence in the trial court was not such as to have required the trial judge to find that no such gift was intended.

Further, we note that although the Supreme Court, in the Ball case, provided that the principle there announced would “apply only to dissolution proceedings instituted after the date” of that opinion the court clearly intended that the principle not have retroactive application.

Weighing of the evidence and determining the credibility of witnesses is uniquely within the province of the trier of fact. We find no error nor abuse of discretion.

AFFIRMED.

BOYER, Acting C. J., and BOOTH, J., concur.

MILLS, J., specially concurs.

MILLS, Judge,

specially concurs.

I concur in the result.

      . Emphasis added.


text:
    Harry ROTH, Stephen H. MARUCA and Joseph N. Marrow, Appellants, v. The STATE of Florida, Appellee. The STATE of Florida, Appellant, v. Hanry ROTH, Stephen H. MARUCA and Joseph N. Marrow, Appellees.
    Nos. 77-2047, 77-2055 and 78-80.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied April 16, 1979.

      Alfonso C. Sepe, Mark King Leban, Miami, for Roth.
    Goodhart & Rosner, Miami, for Marrow.
    Joseph Mincberg, Miami, for Maruca.
    Jim Smith, Atty. Gen., Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for the State.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

These consolidated appeals all concern motions to vacate judgments and sentences. The defendants, Harry Roth, Stephen H. Maruca and Joseph N. Marrow, were tried together upon an information charging (1) conspiracy to commit the breaking and entering of a building and grand larceny, (2) the attempted breaking and entering of a building and (3) the possession of burglary tools. They were found guilty and, upon appeal, the judgments were affirmed by this court. See Maruca v. State, 329 So.2d 427 (Fla. 3d DCA 1976).

Subsequently, Roth, Maruca and Marrow filed motions to vacate the judgments and sentences and a motion for new trial on the ground of newly-discovered evidence. The trial judge denied the motions to vacate the judgments, but considered the motion for a new trial on the basis of newly-discovered evidence as a motion for relief pursuant to Florida Rule of Criminal Procedure 3.850. At the conclusion of the hearing thereon, he allowed the defendants to take polygraph examinations, stating that should they take the examinations and pass them, he would grant them a new trial.

“THE COURT: I tell you what I am going to do. I am going to reserve ruling on your petition for rehearing. I want you to talk to your clients. If they will [take polygraph examinations], and pass them, I will grant you a new trial.
“MR. GOODHART: If we are going to try cases by polygraph, there is no sense you being a judge or me a defense lawyer and Mr. Katz a prosecutor. We could clear the courtroom.
“THE COURT: That is the way I am going to do it, gentlemen.
“How much time do you want? Reset this for December 21st on decision for rehearing.
“MR. GOODHART: Fine, Judge.”

Upon the appeal from the denial of the motions to vacate, two issues are raised by the defendants. The first claims that the trial court incorrectly denied the motions to vacate because the waiver of jury trial was not freely and voluntarily made. Our review of the record convinces us that this allegation is completely refuted by the record. The defendants suggest that their privately-employed attorney induced them to execute the waiver, but it clearly appears that when told by their attorney at least a week prior to trial that he could not represent them unless they executed the waiver, they then elected to waive the jury trial and confirmed their waiver upon examination by the trial court. See State v. Eby, 342 So.2d 1087 (Fla. 2d DCA 1977); and Solloa v. State, 227 So.2d 217 (Fla. 3d DCA 1969).

Defendant Roth claims that his motion to vacate should have been granted on the ground that the attorney who represented all three defendants both at trial and on appeal to this court should not have done so because his representation deprived Roth of the effective assistance of counsel because Roth had defenses which were not available to the other defendants and which were not fully developed. The record shows that these defendants chose a private attorney and persisted with his representation even when they had some disagreement with him concerning the tactics to be employed in the defense. Therefore, the claim that Roth was deprived of effective assistance of counsel was properly denied on the basis of Belsky v. State, 231 So.2d 256 (Fla. 3d DCA 1970); and Davis v. State, 209 So.2d 701 (Fla. 3d DCA 1968).

Even though we hold that the ground of conflict in the representation is not available to Roth, we have examined the record in the light of his contentions and we agree with the finding of the trial judge that there is no basis in the record for a holding that there was a plausible defense antagonistic to that of his co-defendants. See the considerations of law in State v. Youngblood, 217 So.2d 98 (Fla.1968); and Belton v. State, 217 So.2d 97 (Fla.1968).

? to the appeal of the State from the order granting the motion for new trial which the trial court considered as a motion to vacate under Florida Rule of Criminal Procedure 3.850, we hold that the action of the trial court was wholly unjustified and cannot be sustained as an exercise of judicial discretion. As above stated, the motion for relief originally was entitled “Motion for New Trial on Newly Discovered Evidence.” The trial judge quickly disposed of the ground of newly-discovered evidence and his determination in this respect is sustained by the record. The affidavits of the new, prospective witness does not conflict with, nor significantly add to, the trial testimony on the essential points at issue in order to raise a reasonable doubt concerning the guilt of the defendants. See the general rule in Harvey v. State, 87 So.2d 582 (Fla.1956); and the rule in Diamond v. State, 233 So.2d 418 (Fla. 4th DCA 1970), with regard to newly-discovered evidence not being cumulative and producing a different result in the trial. The defendants’ position on the appeal from the order granting a new trial is that the trial judge granted the motion on two grounds, one of which was newly-discovered evidence, but this simply is not supported by the record.

The trial judge reached a determination that the motion should be denied but he allowed polygraph examinations of the defendants and promised a new trial if the tests were affirmative on the question of truth. Trial judges do not have the right to transfer the responsibility for the determination of the issue of a new trial to a mechanical determination of a substitute examiner and a machine. It has long been established in Florida that the results of polygraph examinations are admissible only when their admissibility is stipulated to by the parties. See State v. Cunningham, 324 So.2d 173 (Fla. 3d DCA 1975); and State v. Brown, 177 So.2d 532 (Fla. 2d DCA 1965). It should be noted that the examination was conducted without further notification to the State’s Attorney or the Attorney General and without any representation of the State at the examination. We hold that by this procedure, the trial judge exceeded his authority. The result of the polygraph examination does not constitute a basis for the granting of a new trial. See State v. Jones, 281 So.2d 220 (Fla. 4th DCA 1973), where the court stated:

“The jury did not have the benefit of a polygraph examination of defendant. Therefore, the court exceeded its jurisdiction in ordering the State, absent its consent, to have a polygraph examination administered to the defendant where the obvious purpose is to use the result in determining whether the verdict was contrary to the evidence.”
Sfc * sis * ift

Accordingly, on the appeals by defendants Roth, Maruca and Marrow from the denial of their motions to vacate judgment pursuant to Florida Rule of Criminal Procedure 3.850, the order denying relief is affirmed. On the appeal of the State from the order granting a new trial to these defendants, the order is reversed and the cause remanded with directions to deny the motions.

Affirmed in part, reversed in part and remanded.


author: PEARSON, Judge.

text:
    FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Elsa GARCIA, a minor through her parent and natural guardian, Heraoldo Garcia, Appellees.
    No. 78-1091.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Rehearing Denied April 16, 1979.

      Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellant.
    Stabinski, Funt, Levine & Vega, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PEARSON, Judge.

Fidelity & Casualty Company of New York was the plaintiff in an action for declaratory judgment. It sought a declaration concerning the coverage for its insured, Elsa Garcia, who was injured in an automobile-pedestrian accident. This appeal is from a final summary judgment finding that coverage was afforded to the injured minor claimant.

The facts appear without conflict by stipulation of the parties, and are set forth by the court in the judgment:

“1. That ELSA GARCIA had been a passenger in a truck owned and operated by Silvio Hidalgo.
“2. That Silvio Hidalgo had in full force and effect a policy of automobile liability insurance providing uninsured motorist coverage with Fideltiy and Casualty Insurance Company of New York.
“3. That Silvio Hidalgo stopped his truck in the south bound lane on East 8th Court, Hialeah, Dade County, Florida, in front of ELSA GARCIA’s home located on the east side of said street.
“4. That East 8th Court is a two lane street with one lane for traffic south bound and one lane for traffic north bound.
“5. That ELSA GARCIA exited said truck from the right hand side passenger door and crossed directly in front of the truck toward the direction of her home.
“6. That after crossing in front of said truck and as she was walking toward her
home, ELSA GARCIA was struck by a motor vehicle travelling south on East 8th Court attempting to pass the stopped truck on the left hand side of said stopped truck.
“7. That ELSA GARCIA was struck by the right front headlight section of said motor vehicle and ELSA GARCIA was within a few feet of the stopped truck on East 8th Court at the time of the impact.”

The relevant policy terms involved in this case are contained in the “Definitions” portion of the insurance policy and are set forth below:

“(a) ‘insured’ means: ... (2) any other person while occupying an insured automobile; .
“(e) Occupying. The word ‘occupying’ means in or upon or entering into or alighting from.”

Only one Florida case has been cited for our guidance. In Industrial Fire & Casualty Ins. Co. v. Collier, 334 So.2d 148 (Fla. 3d DCA 1976), Collier was driving his automobile home from work and one of the tires became flat. During the time he was changing the tire, his car was truck by another automobile which caused his car to strike and injure him. At the time Collier was injured, he was standing outside his car, with it jacked up, removing the spare tire from it. This court held that Collier was “occupying” his car within the meaning of his policy with Industrial Fire. The decision relied for support upon the holdings of a list of cases from other jurisdictions. These decisions are not very helpful to us because they are concerned primarily with a determination of whether a particular insured is “occuping” an automobile. A common element in the cases cited is “physical contact” with the automobile, which the courts have considered as important in determining whether one is “occupying” the automobile.

It is clear from the cases cited by the parties here that other jurisdictions have not been able to define a test or a definite limit for the term “alighting from,” which is the term here in issue. See Annot., 19

A.L.R.2d 513 (1951), and in particular A.L. R.2d Later Case Service updating this annotation. While the term is simple and has a good dictionary definition, the application of the definition to the facts of the cases arising from its use in insurance policies shows that it may be ambiguous in a given situation. Cf. Wolf v. American Cas. Co. of Reading, Pa., 2 Ill.App.2d 124, 118 N.E.2d 777 (1954), cited with approval in Industrial Fire & Casualty Insurance Company v. Collier, 334 So.2d 148 (Fla. 3d DCA 1976). We, therefore, recognize the rule that the policy term must be given a liberal interpretation for the insured. See Stuyvesant Insurance Company v. Butler, 314 So.2d 567, 570 (Fla.1975), and cases cited thereat.

Under such an interpretation, we must reject the physical contact test. It is unreasonable to hold that a person has completed the process of “alighting from” when that person has one foot on the ground and has released contact with the car. See Nickerson v. Citizens Mutual Insurance Company, 393 Mich. 324, 224 N.W.2d 896, 899 (1975); and cf. Saint Paul-Mercury Indemnity Company v. Broyles, 230 Miss. 45, 92 So.2d 252 (1957).

On the other hand, there must be a limit to the activity that can be said to be a part of “alighting from.” Cf. Rice v. Allstate Insurance Company, 32 N.Y.2d 6, 342 N.Y.S.2d 845, 295 N.E.2d 647 (1973); and Carta v. Providence Washington Indemnity Company, 143 Conn. 372, 122 A.2d 734 (1956). We think that a rational limit to the activity that may be said to be encompassed within the term “alighting from” is the time and place at which the insured shows an intention, evidenced by an overt act based on that intention, to undertake a new direction or activity. See Carta v. Providence Washington Indemnity Company, supra at 737. See also Testone v. Allstate Insurance Company, 165 Conn. 126, 328 A.2d 686, 691 (1973); and Lautenschleger v. Royal Indemnity Company, 15 N.C.App. 579,190 S.E.2d 406 (1972); and cf. Nelson v. Iowa Mutual Insurance Company, 163 Mont. 82, 515 P.2d 362, 364 (1973).

In the case now before us, the trial judge found that Elsa Garcia exited the truck from the right-hand side passenger door, thereafter walked to the front of the truck, crossing directly in front of it in “. . . the direction of her home.” The trial judge then found that after crossing in front of the truck, and as she was walking toward her home, she was struck while entering the left-hand lane of the highway. Under these facts, Elsa had completed the act of “alighting from” the truck. She was engaged in a distinctly separate activity having nothing to do with the truck, that is, the crossing of a highway in order to go home. We hold that the activity of Elsa when struck by the passing automobile was too remote in time and place from the act of exiting the truck in which she had been a passenger to be considered as “alighting from” the truck. The summary judgment entered must, therefore, be reversed inasmuch as the trial judge applied an erroneous rule of law in holding the plaintiff liable under the policy of insurance as a matter of law.

Reversed and remanded for further proceedings in accordance with the views herein expressed.

Reversed.

      . “alight ... (1) to spring down, get down, or descend, as from a horse’s back or from a carriage; to dismount . . ” Webster’s New International Dictionary of the English Language (2nd Edition 1960)
      “Alight ... II Referring chiefly to the result: To land. 4. To get down from a horse or conveyance; to dismount or descend for the time; to finish one’s ride, stop.” The Oxford English Dictionary, Vol. I (Clarendon Press 1933)