text:
    William J. COLONNELL and United Services Automobile Association, Appellants, v. Fred A. MITCHELS and Carol A. Mitchels, Appellees.
    No. 74-1324.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Rehearing Denied Sept. 25, 1975.
    James R. Lyle and J. Thomas McGrady of Bradham, Lyle, Skipper & Cramer, St. Petersburg, for appellants.
    Richard A. Bokor, Tampa, for appellees.
   GRIMES, Judge.

The plaintiffs filed this suit to recover damages for personal injuries received in an automobile accident which occurred on August 17, 1972. At the conclusion of the trial the plaintiffs’ motion for directed verdict was granted. The jury returned a verdict in favor of the plaintiff, Fred A. Mitchels, in the amount of $60,000, and in favor of the plaintiff, Carol A. Mitchels, in the amount of $10,000.

The defendants first argue that the court erred in directing a verdict for the plaintiffs. A careful review of the record leads us to believe that a jury of reasonable persons could have only concluded that the plaintiffs were not negligent and that the defendant, Colonnell, was guilty of negligence which was a legal cause of the accident. Hormovitis v. Mutual Lumber Company, Fla.App.2d 1960, 120 So.2d 42. Hence, the court properly directed a verdict for the plaintiffs, and the defendants’ contention that the court should have given instructions pertaining to the violation of certain ordinances is no longer pertinent. We likewise reject the defendants’ claim that the verdicts were excessive as a matter of law because the evidence of the plaintiffs’ damages was sufficient to support verdicts in the amounts which were returned. However, there is one aspect of Mr. Mitchels’ proof of damages which gives us concern.

Mr. Mitchels’ main injury consisted of a compound fracture of the right patella which required a partial patellectomy. He was deposed on February 20, 1974. On March 28, 1974, the defendants took the deposition of Dr. Albert Wilson, one of the plaintiffs’ treating physicians. Dr. Wilson testified that there was some ossification of the patellar tendon which was causing weakness in Mr. Mitchels’ knee. While admitting the possibility that the ossification could further increase, he said he thought Mr. Mitchels’ injury had reached a state of permanency from which he expected no material improvement or retrogressive change. He gave the opinion that Mr. Mitchels had a 15% permanent impairment of the leg.

On June 21, 1974, the court issued a notice of trial and order directing pretrial conference. The pretrial conference was set for September 4, 1974, and the trial was set for the week of September 16, 1974. The order directed that all discovery and physical examinations be completed prior to the date of the pretrial conference. On August 22, 1974, the defendants propounded supplemental interrogatories to the plaintiffs in which they were asked about any examination or treatment they had received by any physicians since the date of their depositions or previous interrogatory answers. The plaintiffs filed a motion to strike the defendants’ supplemental interrogatories as untimely in violation of the order directing pretrial conference. The motion was granted at the pretrial conference.

Dr. Wilson was called at the trial to testify concerning the plaintiffs’ injuries. In the course of his testimony he said that he had examined Mr. Mitchels most recently on September 10, 1974, and had taken additional x-rays at that time. The defendants objected to testimony concerning this examination as being violative of the order prohibiting physical examinations subsequent to the pretrial conference. In response to the court’s interrogation, • the plaintiffs’ attorney indicated that the recent physical examination was done in order for the doctor to be current in his testimony concerning Mr. Mitchels’ physical condition. The objection was overruled. Dr. Wilson then testified that the ossification of the patellar tendon had increased substantially since his previous examination on March 15, 1974. As a consequence, he concluded that the knee would continue to get worse.

The defendants had no knowledge that the examination of September 10 was being made and did not receive a copy of the medical report. They contend that they were grievously prejudiced by the testimony of Dr. Wilson concerning this examination. They say they never previously sought to have an independent physical examination by another doctor because they saw no reason to question Dr. Wilson’s deposition testimony that Mr. Mitchels’ knee had reached a point of equilibrium.

We believe the court abused its discretion in permitting the doctor to testify concerning the September 10 examination. The court strictly followed the terms of the pretrial order with respect to the defendants’ supplemental interrogations, yet allowed the plaintiffs to introduce damaging evidence obtained in direct violation of the same order. The defendants were confronted with new x-rays taken at that examination which they had never seen and which were admitted into evidence in spite of the fact that all exhibits were supposed to have been presented at the pretrial conference. Even the additional medical expenses incurred because of the examination were allowed into evidence. The purpose of requiring that physical examinations and discovery be completed by the time of the pretrial conference (which was set only twelve days prior to the week of the trial) was to avoid surprise to either side. As we said in Jones v. Seaboard Coast Line Railroad Company, Fla.App.2d 1974, 297 So.2d 861, “litigation should no longer proceed as a game of ‘blind man’s bluff.’ ”

Had the fact of the forthcoming physical examination been made known at the pretrial conference, there is no doubt that something could have been worked out. The examination could have been permitted and the defendants immediately supplied a copy of the report and given the opportunity to have an independent examination should the report be adverse. Cf. Bowen v. Manuel, Fla.App.2d 1962, 144 So.2d 341. Under the circumstances, the defendants were caught completely unawares by extremely prejudicial testimony. Justice would be better served by remanding for a new trial on damages with respect to Mr. Mitchels.

The same practice was followed with respect to Mrs. Mitchels, but Dr. Wil-son testified that when he saw her on September 14, 1974, her condition had not appreciably changed since his previous examination. Therefore, the defendants suffered no prejudice as a result of his testimony concerning the recent physical examination.

The judgment for Mrs. Mitchels is affirmed. The verdict in favor of Mr. Mitchels, was proper, but the judgment is reversed and the case is remanded for a new trial on the issue of Mr. Mitchels’ damages.

HOBSON, Acting C. J., and SCHEB, J., concur.


source: Caselaw Access Project

author: NANCE, L. CLAYTON, Associate Judge. DOWNEY, Judge

license: Public Domain

text:
    Emma BALL, Appellant, v. Balint PAPP, Appellee.
    No. 74-98.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1975.

      Ralph G. Decker, Davids, Decker, Henson & Hadley, Orlando, for appellant.
    Monroe E. McDonald and Wilson Sanders, Sanders, McEwan, Mims & McDonald, Orlando, for appellee.
   NANCE, L. CLAYTON, Associate Judge.

The appellant, Ball, instituted a Supplementary Proceeding under Fla.Stat. § 56.29 (1973) against the appellee, Papp, as defendant in execution. Appellant, plaintiff in execution, impleaded defendant’s wife, Elizabeth, as a third party, in an effort to execute upon corporate stock to satisfy a judgment of $80,440.80, entered in an assault and battery action. The alleged fraudulent conveyance or transfer of stock from Papp to his wife transpired on or about December 9, 1970, the assault and battery action was instituted and summons served upon the defendant May 25, 1972, and judgment was entered in favor of plaintiff and against defendant on or about March 6, 1973, and execution thereon was delivered to the sheriff on March 13, 1973.

Mrs. Papp, the impleaded wife, responded to the rule and the matter proceeded to final hearing. The plaintiff in execution attempted to show “badges” or indicia of fraud on the part of the defendant in execution and the impleaded third party, his wife, as against the plaintiff judgment creditor. At the conclusion of the plaintiff’s case, the Court found in favor of the respondents and against the plaintiff from which ruling the plaintiff has brought this appeal.

Although the parties have denominated this proceeding as an Interlocutory Appeal, because this is a separate and distinct supplementary proceeding from the case in which the original judgment is entered, and the order entered herein is a final judgment, this is a full appeal. Codomo v. Emanuel, 91 So.2d 653 (Fla.1956); Advertects, Inc. v. Sawyer Industries, 84 So.2d 21 (Fla.1955); Richard v. McNair, 121 Fla. 733, 164 So. 836 (1935); State ex rel. Phoenix Tax Title Corporation v. Viney, 120 Fla. 657, 163 So. 57 (1935); 2 Fla.Jur., Appeals, § 3 (1963).

Appellant has raised two points on appeal: first, that the Court erred in failing to find a prima facie case of fraudulent transfer and thereby granting appellee’s Motion to Dismiss and Discharge the Rule to Show Cause; and, second, that the Court erred in failing to award costs to the appellent, plaintiff in execution, against the defendant in execution.

We affirm the judgment of the Court below on appellant’s first point.

Florida Statute § 56.29(6) (a) in effect at the commencement of the action, placed the burden upon the defendant in execution to establish that such a transfer from him within 1 year before issuance of execution, was not made to delay, hinder or defraud creditors, but the Legislature amended this statute effective July 1, 1972, placing the burden of proof upon the defendant in execution to establish that such a transfer within 1 year before the service of process on him, was not made to delay, hinder or defraud creditors.

Clearly, Florida Statute § 56.29 (6) (a) did not place the burden of proof upon the defendant in the instant case, when the plaintiff did not secure her judgment until March 1973, and the amendment to the law establishing the burden of proof upon the defendant in execution concerning transfers of property within a 1 year period prior to service of process upon him, cannot be given retrospective effect, in this cause, concerning a transfer occurring over a year before the effective date of the amendment. In fact, the record reflects that the transfer had, in all events, occurred more than. 1 year prior to the service of process upon the defendant.

These factors being present, the plaintiff in execution has the burden of proof to establish the alleged fraudulent conveyance. Tischler v. Robinson, 79 Fla. 638, 84 So. 914 (1920); Swartz v. Lipsky, 241 So.2d 448 (3d DCA Fla.1970); 37 Am.Jur.2d, Fraudulent Conveyances, § 216 (1968).

The Trial Court heard the testimony of the plaintiff in execution, the im-pleaded third party wife, and another witness (daughter of the plaintiff), and an examination of the transcript and record reflect that there was ample testimony and evidence to support the findings and judgment of the Trial Court.

On review, the burden is upon the appellant to show, affirmatively, error committed on the part of the Trial Court, and upon failure to do so, the Appellate Court must affirm the judgment appealed from. Punkar v. King Plastic Corporation, 290 So.2d 505 (2nd DCA Fla.1974); Mart v. Leibman, 281 So.2d 367 (3rd DCA Fla. 1973); Manis v. Prudhomme, 278 So.2d 292 (4th DCA Fla.1973); Mitchell v. Morse Operations, Inc., 276 So.2d 248 (3rd DCA Fla.1973); Haller v. Santona Land Corporation, 275 So.2d 591 (1st DCA Fla. 1973); American Motor Inns of Florida, Inc. v. Bell Electric Co., 260 So.2d 276 (4th DCA Fla.1972); Staton v. Staton, 231 So.2d 531 (1st DCA Fla. 1970); Citrus Engineering, Inc. v. Sims Crane Service, Inc., 231 So.2d 265 (2nd DCA Fla.1970); Mank v. Hendrickson, 195 So.2d 574 (4th DCA Fla.1967); Kreedian v. BCK Land, Inc., 145 So.2d 550 (2nd DCA Fla.1962); Stengel v. Biggar, 129 Fla. 627, 176 So. 786 (1937); Cobb v. Cobb, 82 Fla. 287, 89 So. 869 (1921); Waterman v. Higgins, 28 Fla. 660, 10 So. 97 (1891); 2 Fla.Jur., Appeals, §§ 314, 316 (1963).

We affirm the judgment of the Court below on appellant’s second point.

The Trial Court ordered each party to bear own costs.

Fla.Stat. § 56.29(11) (1973) provides for taxation of costs against the defendant in execution. An exhaustive search for authority discloses no application of award of costs, in private litigation, statutorily authorized, as against the prevailing party, except in domestic cases, such as under Fla.Stat. Chapter 61, Section 56.29(11) presupposes a prevailing plaintiff in execution. Any other view would license and encourage harassment, and fishing expeditions against judgment debtors. Moreover, in the instant case, there cannot be construed statutory authority for an award of costs as against a prevailing im-pleaded third party.

Further, it would appear that appellant has raised'the second point, for the first time, by way of assignments of error, a matter not raised before the Trial Court.

It is uniformly declared policy of Appellate Courts to confine the parties to points raised in the Court below, if the parties had an opportunity to raise them in the Trial Court. 2 Fla.Jur., Appeals, § 290 (1963).

Judgment affirmed.

CROSS, J., concurs.

DOWNEY, J., concurs in part and dissents in part with opinion.

DOWNEY, Judge

(dissenting in part).

While the evidence adduced in this case certainly reflected some of the “badges” of fraud in the conveyance in question, I agree with the majority opinion that there is sufficient competent evidence upon which the trial court could conclude that appellant failed to prove a prima facie case. Thus, on the main issue involved in this appeal I would concur in an affirmance.

However, appellant also contends that error was committed in the taxation of costs. Section 56.29(11), F.S.1973, provides :

“Costs for proceedings supplementary shall be taxed against the defendant as well as all other incidental costs determined to be reasonable and just by the court including, but not limited to, docketing the execution, sheriff’s service fees, and court reporter’s fees.”

Unlike § 57.041, F.S.1973, the general statute on the recovery of costs by the party recovering judgment, § 56.29(11) mandates in clear, unambiguous language that the defendant in supplementary proceedings shall pay the costs, whether or not he is the prevailing party. The rationale of the legislature in so providing would seem to be evident from the obvious purpose of Chapter 56, F.S., which is, namely, to assist creditors in the collection of their just debts. Moreover, I do not fear that this mandatory statute could lead to harassment of the debtor. While the statute requires the costs to be assessed against the defendant, the amount to be awarded is a discretionary matter with the court, so costs incurred as a result of harassment will surely not be assessed. As a matter of fact, the very section under discussion provides for taxation of only “reasonable and just” items of incidental costs.

I would summarily dispose of appellee’s contention that the question of assessment of costs cannot be considered because it was not raised below with the comment: she never had a chance. The final judgment contained a provision that each party pay his own costs. Appellant learned of the entry of the judgment on the last day of the period for filing a petition for rehearing. Certainly there is no requirement to file an ex post facto motion to tax costs.

Accordingly, I would affirm the final judgment in all respects other than the assessment of costs and would remand the cause with instructions that upon appellant’s motion, the court tax appellant’s appropriate costs against the appellee.


author: PER CURIAM.

text:
    William Arthur LYNN, Appellant, v. STATE of Florida, Appellee.
    No. X-549.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1975.
    Ernest L. Cotton, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We have studied the briefs of counsel and have examined the record on appeal. The court below committed no reversible error. The judgment is therefore

Affirmed.

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


author: MILLS, Judge.

text:
    James Kelly HAMLIN, Appellant, v. STATE of Florida, Appellee.
    No. V-346.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1975.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   MILLS, Judge.

Appellant, an indigent defendant, contends his constitutional rights have been violated by the refusal of the trial court to order the court reporter to prepare a transcript of all proceedings, and subsequent refusal to order preparation of a transcript of the proceedings at which the defendant entered his plea of guilty, was adjudicated guilty, and sentenced.

Pursuant to plea bargaining, defendant pled guilty to the charge of robbery, was adjudicated guilty, and sentenced to life.

The Public Defender of the Eighth Judicial Circuit represented defendant in the trial court, and filed a notice of appeal on his behalf. This Public Defender then designated the Public Defender of the Second Judicial Circuit to handle the appeal. The Public Defender of the Second Judicial Circuit filed a motion for order directing the court reporter to prepare a transcript of all proceedings. The trial court denied the motion on the premise that an indigent defendant is entitled only to that part of the proceedings falling within the scope of his assignments of error. At this time, no assignments of error had been filed. Several months later, the designated public defender filed a motion for order directing the court reporter to transcribe the proceedings at which he pled guilty, was adjudicated guilty, and sentenced. The trial court denied this motion on authority of its General Administration Order No. 5 (1974) and this Court’s decision in Moore v. State, 298 So.2d 561 (Fla.App.1974). Still no assignments of error had been filed. Several months after entry of this order, defendant filed assignments of error in which he raised the above issue. We agree with the trial court and affirm.

Florida Appellate Rule 3.6(g)(2) states that no matter shall be included in the transcript of record that is not within the scope of the assignments of error. No assignments of error were filed in this case until months after the trial court had disposed of defendant’s two motions. Therefore, there was no basis to support defendant’s motions to order the court reporter to prepare a transcript of the proceedings. Moore v. State, 298 So.2d 561 (Fla.App.1974).

In Cueni v. State, 303 So.2d 411 (Fla.App.1974), this Court held that entitlement to a transcript of proceedings must be determined in the context of the substantive law surrounding the assignments of error raised. [Certiorari denied, Cueni v. State, 310 So.2d 738 (Fla.1975)]. As no assignments of error had been filed at the time the motions were presented, the trial court had no basis upon which to make their determination.

The designated public defender urges that without a transcript he does not know what errors to assign on appeal. The answer to this is communicate with the trial public defender, who should be familiar with the case and should know what errors to assign. In this regard, the record contains an affidavit from the trial public defender that to the best of his knowledge no error was made by the trial court.

It is also contended that General Administration Order No. 5 (1974) is void, as it has not been approved by the Supreme Court as required by Civil Procedure Rule 1.020(c). [See also Criminal Procedure Rule 3.025(b), State v. Garrett, 310 So.2d 751 (Fla.App.1975)]. There is nothing in the record before us which shows whether or not the Supreme Court has approved the general administration order, therefore, we must presume that it has. Based on the record, this contention is without merit as it appears from the trial court’s first order of denial that it was not premised on the general order, and the second order of denial, though based on the general order, was also based on the Court’s decision in Moore v. State, supra.

Affirmed.

BOYER, C. J., and McCORD, J., concur.


author: OWEN, Judge.

text:
    Leonard Earl ATKINSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-590.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1975.
    James C. Dauksch, Jr., of Dauksch & Brownlee, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

At the commencement of appellant’s criminal trial the court ordered the sequestration of all witnesses. Subsequently, deeming two of appellant’s alibi witnesses to have violated the order of sequestration, or “rule” as it is frequently called, the judge disqualified them from testifying. We hold that under the facts of this case such was prejudicial error requiring the judgment to be reversed and appellant to be afforded a new trial.

At the commencement of the trial, after the jury had been selected and sworn, the court ordered the sequestration of the witnesses, or as it is more commonly called, “put the witnesses under the rule”. The judge instructed the witnesses that they were required to remain out of the courtroom at all times except when called to testify, and that both before and after testifying they should not discuss any of the facts of the case among themselves nor discuss with any other witness who had previously testified the nature or substance of his testimony. Although cautioning the witnesses as to the penalties for violation of the order, the judge explained that the order did not prohibit them from discussing the case with counsel for either the State or the defendant.

The court’s order of sequestration was in accordance with a time honored practice designed to prevent the shaping of testimony by hearing what other witnesses say, Taylor v. United States, 388 F.2d 786 (9th Cir. 1967), such practice having its roots in antiquity. See, 6 Wigmore, Evidence §§ 1837 et seq. (3rd Ed. 1940). Although at different times courts have, in the exercise of discretion, actually separated the witnesses from one another so as to preclude all conversation between them, separation to this extent is rarely done since it is not only impractical but serves no useful purpose so long as the prospective witnesses abide by the court’s instructions. This is in recognition of the fact that conversations between prospective witnesses on matters unrelated to the facts of the case are not harmful and need not be prohibited. They were not prohibited in the instant case.

Appellant’s defense was alibi, for which he had three witnesses. After the first witness had testified, the State objected to appellant calling the remaining two, alleging they had violated the court’s order of sequestration. It developed, upon the court’s voir dire examination of five persons purporting to have knowledge of the alleged violation (including the two prospective alibi witnesses) that the only proof relating at all to the State’s allegation merely established that the two prospective alibi witnesses had been conversing with one another, a fact which each readily admitted. However, there was not the slightest evidence developed which contradicted their emphatic denial of having discussed the case or their possible testimony. Nevertheless, and without more, the court ruled that appellant’s two prospective alibi witnesses were disqualified from testifying.

At the outset, we question whether there was a valid basis for the court’s apparent conclusion that the witnesses had violated the rule of sequestration as there is a total absence of any proof to that effect. Neither the court’s expressed instructions in this case, nor the commonly accepted construction of the rule’s requirements prohibit absolutely all conversation between or among prospective witnesses. It is only conversation relating to the facts of the case which is proscribed. While the judge was not bound to accept as true the prospective witnesses’ denial of a violation of the rule, there does not appear to be any basis for him to assume, in the absence of other proof, that the prospective witnesses had in fact violated the court’s rule. Though we are inclined to disagree with the court’s conclusion, our decision in this case does not turn upon a determination of whether or not the court’s rule was in fact violated.

Working from the premise that there was sufficient evidence from which the trial court could properly conclude that the two prospective alibi witnesses had violated the court’s order of sequestration, we hold that it was reversible error for the court to disqualify the witnesses from testifying absent a finding that the rule violation was with the knowledge, connivance, or consent of the defendant or his counsel.

In the leading case of Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893), the court stated:

“If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt, and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground, merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.” (e. s.)

While the United States Supreme Court did not spell out the “particular circumstances” which would support a refusal to permit the witness to testify, this was discussed in the opinion in United, States v. Schaefer, 299 F.2d 625, 14 ALR 3rd 1 (7th Cir. 1962), cert. denied 370 U.S. 917, 82 S.Ct. 1553, 8 L.Ed.2d 497 (1962), wherein the court stated, at 631:

“However, we interpret Holder to mean the court may not disqualify the witness merely because he disobeys the rule but that this alternative is available if particular circumstances are shown. From the better reasoned state court decisions we interpret these particular circumstances to mean some indication the witness was in court with ‘the consent, connivance, procurement or knowledge of the appellant or his counsel’.’’ (e. s.)

Other courts have also recognized that the proper recourse against a witness who violates the court’s rule of sequestration is to hold the witness in contempt, but that such conduct, while a proper consideration for the jury in determining the witness’s credibility, should not be the basis of disqualification of a witness for a defendant in a criminal case because of the accused’s constitutional right to have witnesses testify in his behalf. See, State v. Leong, 51 Haw. 581, 465 P.2d 560 (1970); Rainsberger v. State, 76 Nev. 158, 350 P.2d 995 (1960); Braswell v. Wainwright, 463 F.2d 1148 (5th Cir. 1972). This represents what we feel to be the better view, although there is respectable authority to the contrary. See, 75 Am.Jur.2d, Trial, § 63 (1974), and cases cited therein.

Here, completely aside from the questionable evidence of violation of the rule, there was a complete lack of evidence supporting even the slightest inference that the alleged violation was with the knowledge, connivance, or consent of appellant or his counsel. It was thus error for the court to disqualify the two prospective alibi witnesses from testifying on appellant’s behalf. Since alibi was the heart of appellant’s defense, such error was harmful.

We have considered appellant’s remaining points on appeal and conclude that none of them demonstrate reversible error nor require discussion. The judgment is reversed and this cause remanded with directions that appellant be afforded a new trial.

Reversed and remanded.

WALDEN, C. J, and DOWNEY, J., concur.


text:
    DIVISION OF ADMINISTRATION, STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. CONDOMINIUM INTERNATIONAL, INC., et al., Appellees.
    No. 75-290.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.

      Geoffrey B. Dodson and Winifred Sheridan Smallwood, Tallahassee, for appellant.
    Ira M. Elegant, John R. Farrell, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, condemner in the trial court, seeks review of that portion of an order and judgment taxing costs, awarding a total of $62,572.75 as reasonable fees for appraisal services.

This appeal evolves out of a condemnation suit filed by the State of Florida Department of Transportation to condemn certain lands owned by the appellee herein, Condominium International, Inc. The Department of Transportation in its declaration of taking estimated the value of the property to be condemned to be $543,200. The condemnee placed the value thereof between $1,926,000 and $2,070,900. No settlement offers were made by the appellant, and the trial which was scheduled for January 1974 was postponed several times. Ultimately the case was tried in November 1974, and the jury returned a verdict for $1,410,625 in favor of the appellee. The trial itself involved complex appraisal problems, as well as substantial and unique questions of law. Thereafter, appellee filed a motion to tax costs with an affidavit of costs attached thereto. Counsel for the respective parties agreed to all the items contained therein with the exception of the fees for William Pardue, M.A.I. and David P. Bishop, A.S.A., who were the two appraisers employed by the appellee. After an evidentiary hearing with respect to the appraisal fees, the trial judge entered his order and judgment taxing costs, awarding William Pardue $37,572.75 and David Bishop $25,000 as reasonable appraisal fees. The Department of Transportation Appeals therefrom. We affirm.

In a condemnation proceeding, a landowner is entitled to an allowance of an appraiser’s fee in such an amount as is reasonable and necessary. Dade County v. Brigham, Fla.1950, 47 So.2d 602; Cheshire v. State Road Department, Fla.App.1966, 186 So.2d 790.

At the evidentiary hearing, the appraisers testified as to the complex appraisal problems involved in this condemnation suit and the amount of time expended in this matter. Appellee also presented the testimony of another expert witness who testified that the appraisal fees were reasonable and necessary. In contrast, appellant presented no expert testimony with regards to reasonableness of the appraisal fee or the value of the appraisers’ services. Hence, we conclude that there was adequate testimony presented to the trial judge to support the amounts awarded as appraisal fees and no abuse of discretion has been made to appear.

Accordingly, the order and judgment taxing costs is affirmed.

      . Appellee in its affidavit of costs had listed $37,572.75 as Pardue’s fee and $25,000 as Bishop’s fee.


author: HENDRY, Judge.

text:
    DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. CONDOMINIUM INTERNATIONAL, Individually, et al., Appellees.
    No. 75-385.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    See also, Fla.App., 317 So.2d 809.
    Geoffrey B. Dobson, Winifred Sheridan Smallwood and George L. Waas, Tallahassee, for appellant.
    Sibley, Giblin, Levenson & Ward, John R. Farrell, Miami, for appellees,
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HENDRY, Judge.

This is an appeal by the Florida Department of Transportation (D.O.T.) from an order awarding the condemnee-appellee’s attorney a $225,000 fee for his representation of the appellee in an eminent domain case.

The trial judge, in entering the award, rendered a nine-page opinion containing a recitation of the facts and his interpretation of the law supporting the award of the attorney’s fee.

We do not deem it necessary to repeat in detail the particular facts outlined in the trial court’s order, although we would point out that the order has been beneficial in reminding this court that the trial judge was quite aware of the complexities of this case when he entered the award now at issue.

Of importance, was the court’s finding that “[T]his was an exceptionally complex eminent domain proceeding. . . . ” The appellee’s attorney, John R. Farrell, testified that he spent from 2,000 to 3,000 hours on this case. (From the record, it is apparent that Farrell does not keep daily time records, and we agree with the appellant that Farrell’s time estimate was in reality a “guesstimate”, not necessarily an accurate reconstruction).

Farrell further testified that he is an experienced condemnation lawyer (indeed 90 to 95 per cent of his work is exclusively devoted to this field of law) and that this case was the most difficult eminent domain case he has ever handled.

The court in its order summarized the monetary result achieved for Farrell’s client, the appellee, in the following- manner:

“Total Defendant Recovery: (including interest) $1,521,557.73
“Initial D.O.T. Offer $ 543,200.00
“Result Achieved for Defendant $ 978,357.73.”

Furthermore, the court “noted that from the time this eminent domain proceeding was filed until the jury returned its verdict, the Department at no time undertook any steps toward the possibility of settlement without the necessity of trial.”

In addition, the trial judge observed that the appellee had obtained approximately a 300% increase over the D.O.T.’s .original offer despite the “difficult psychological reality” that on October 10, 1972 when the D.O.T. deposited funds into the Registry of the Court (pursuant to the quick-take provisions of Chapter 74, Florida Statutes), the real estate market was in a comparably superior state to the market prevailing on November 4, 1974, the week of trial, when substantial economic recession problems had beset the real estate market.

The court below accepted the testimony of expert witnesses on behalf of Farrell as persuasive and helpful (while at the same time recognizing that it was not binding, on the court). Farrell’s witnesses, George W. Wright, Jr. and Toby Prince Brigham, each condemnation lawyers in their own right, testified respectively that a reasonable attorney’s fee would be $225,000 and in the range of $244,000 to $275,000, (Farrell informed the court that a reasonable fee for himself would be $250,000).

While the court heard no evidence from the D.O.T. to rebut the expert testimony on Farrell’s behalf, the attorney representing the Department at the hearing on the attorney’s fee stated that a reasonable fee would be $150,000. (This figure was arrived at by multiplying 1,000 hours by $150 per hour; in other words, on a strict hourly basis.)

A reading of the testimony in the record reveals that there really is no precise means of reconstructing the amount of hours which Farrell devoted to this case. The cause spanned approximately two and a half to three years, and the D.O.T.’s counsel managed to obtain from Farrell a vague acknowledgment that he had spent approximately one-third of his time on this case alone.

Therefore, in its brief the D.O.T. calculates a reasonable fee which it contends approaches the fee recommended by its own attorney (viz., $150,000).

In doing so, the Department relies on an article which appeared in the April 1974 issue of the legal periodical Juris Doctor (entitled “I’d Rather Do It Myself — How to Start Your Own Law Office” by Stephen Gillers). Therein the author states that the number of standard billable hours an attorney has per year ranges from 1,200 to 1,400.

Taking the latter figure as the amount of time expended by Farrell upon the instant case (y/z of his time divided into the almost three-year period of the case), the D.O.T. multiplied that by $100 per hour (a figure at odds with the $150 figure employed before the trial court) and reaches a sum of $140,000 as a reasonable fee.

While the D.O.T.’s fee computation is plausible, we do not think the formula employed has been shown to include all the legal factors included in awarding a reasonable attorney’s fee.

In Folmar v. Davis, Fla.App.1959, 108 So.2d 772, this court made the following statement of the law relative to attorney’s fees:

“[1-3] The determination of the amount of the recovery was largely in the discretion of the trier of facts taking into consideration the service performed, the responsibility incurred, the nature of the service, the skill and time required, the circumstances under which it was rendered, the customary charges for like service, the amount involved, and the importance and results of the litigation. Also in estimating the value of an attorney’s services his skill, experience, professional reputation, and even his amount of business may be taken into consideration. The testimony of expert witnesses is to aid and assist in the determination, but such testimony is neither conclusive nor binding on the court or the jury. See Munroe v. Birdsey, 102 Fla. 544, 136 So. 886; Baruch v. Giblin, 122 Fla. 59, 164 So. 831; Powell v. Cocowitch, Fla. 1957, 94 So.2d 589.”

This court and other courts in Florida consistently have held the view that these standards are applicable in eminent domain proceedings and only where a clear abuse of discretion has been demonstrated will an award of attorney’s fees be disturbed. See, Florida East Coast Railway Co. v. Martin County, Fla.1965, 171 So.2d 873; Ocala Manufacturing Ice & Pack. Co. v. Canal Auth., Fla.App.1974, 301 So.2d 495 (See also, Canal Auth. v. Ocala Manufacturing Ice & Pack. Co., Fla.App.1971, 253 So.2d 495); City of Miami Beach v. Manilow, Fla.App.1971, 253 So.2d 910; City of Miami Beach v. Liflans Corporation, Fla. App.1972, 259 So.2d 515; Compare, Posner v. Posner, Fla. 1975, 315 So.2d 175.

Appellant heavily relies on this court’s recent decision in Dade County v. Oolite Rock Company, Fla.App.1975, 311 So.2d 699 as well as Manatee County v. Harbor Ventures, Inc., Fla.App.1975, 305 So.2d 299.

A careful scrutiny of the holdings in each case convinces us that the court determined, based upon the particular circumstances, that the fees awarded were unrealistic and exceeded the bounds of the trial court’s discretion.

Appellant argues that the award in this case is a straight percentage fee (15% of $1.5 million, the ultimate jury verdict determining the value of the property), a practice specifically rejected by the court in the Manatee County case.

We cannot agree with that contention because the order appealed is not susceptible to such an interpretation. As a matter of fact, the trial court specifically stated that he had considered all the factors contained in Canon 2 of the Code of Professional Responsibility [DR-2-106(B)].

In sum, while we agree that the fee awarded in this case is high, it is not one which we consider so excessive as to constitute an abuse of discretion.

The record shows that Farrell is an experienced and skilled condemnation lawyer who achieved a desirable result for his client and in so doing expended an extraordinary amount of time in what he said was the most difficult eminent domain case he has ever had.

It might be worthwhile to recall that the Florida Constitution, Article X, Section 6(a), reads: “No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit on the registry of the court and available to the owner.”

Further, Fla.Stat. § 73.091, F.S.A. specifically provides that the condemning authority must pay “all reasonable costs of the proceedings in the circuit court, including a reasonable attorney’s fee to be assessed by that court.”

Attorney’s fees have been construed to be an element of costs in a condemnation proceeding and therefore an expense which the owner of private property is entitled to receive as “just compensation” for the taking of his property. See, City of Hallandale v. Chatlos, Fla.1970, 236 So.2d 761; Dade County v. Brigham, Fla.1950, 47 So.2d 602.

The courts of this state recognize that eminent domain cases present one of the most harsh proceedings known in the law. See, City of Lakeland v. Bunch, Fla. 1974, 293 So.2d 66; Brest v. Jacksonville Expressway Authority, Fla.App.1967, 194 So.2d 658. We do not believe it can be gainsaid that landowners are entitled to be represented in condemnation cases by able and competent counsel, who in turn are entitled to be fairly and fully compensated for the services they render.

Therefore, for the reasons stated and upon the authorities cited and discussed herein, the order appealed is affirmed.

Affirmed.

      . The condemnation proceeding in this case was instituted by the D.O.T. in order to acquire land southwest of the Miami International Airport near the Florida International University for a limited access right of way.

      . We agree with the appellant’s suggestion that accurate time records by lawyers involved in condemnation matters (and therefore who might reasonably expect to be compensated from public funds) might facilitate a more exact computation of attorney’s fees. Cf., Lindy Bros. Bldrs., Inc. of Phila. v. American R. & S. San. C., 382 F.Supp. 999 (E.D.Pa.1974); Canon 2 Code of Professional Responsibility [DR 2-106(B) (1) ].


author: WALDEN, Judge.

text:
    Pauline T. RAINES et al., Appellants, v. PALM BEACH LEISUREVILLE COMMUNITY ASSOCIATION, a Florida Corporation not for profit, et al., Appellees.
    No. 74-1002.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1975.
    Rehearing Denied Sept. 4, 1975.
    Wood, Cobb & Robinson, W. Palm Beach, and Robert T. Scott, Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for appellants.
    Cecil H. Albury, Carlton, Brennan, McAliley, Albury & Hayskar, West Palm Beach, for appellees-Vastine, Shorter, Drasal, Smith, Sturges, Pagllard and Phillips.

      Andrew I. Friedrich and H. L. Cooper, Jr., O’Connell & Cooper, West Palm Beach, for appellee-Palm Beach Leisure-ville Community Association.
   WALDEN, Judge.

This appeal concerns the legal interpretation to be given to certain condominium documents. The dispute lies in the area of maintenance — who shall he financially responsible for it and to what degree. As shall be shown, there are two conflicting provisions. Can they be reconciled or does one take precedence over the other ?

For background, we describe the condominium development. It, somewhat unusually, consists of two kinds of habitations. On one hand, there are individual separate one family dwellings, each located on a single lot. We shall call the owners of these dwellings “improved lot owners.” On the other hand, there are multi-storied condominium apartment buildings, each building containing 24 or more apartments, with each building located on a single lot. We shall call the owners of these apartments “condominium unit owners.”

Arrayed in this litigation as plaintiffs-appellants are the condominium unit owners versus defendants-appellees, the improved lot owners and Palm Beach Lei-sureville Community Association.

The condominium unit owners brought suit, complaining that they were being improperly assessed for certain maintenance costs. The trial court held for the improved lot owners and the Association, basing its decision on an interpretation of critical portions of the condominium documents, and said:

“1. The Defendant, Palm Beach Lei-sureville Community Association, in performing its duties as required by the various Declarations of Restrictions pertaining both to Improved Lots and Condominium Apartment is assessing all costs of maintenance, upkeep and replacement of lawns, sprinkler systems and exterior building maintenance equally against each Improved Lot and Condominium Apartment owner.
“2. That the method of assessment described above is in accordance with the language and intent of the governing documents.” (Emphasis added.)

Upon a study of the documents, we reverse.

The critical portions of the condominium unit declarations are Paragraphs 6 and 9.

Paragraph 6 clearly provides the condominium unit owners shall be liable for:

(1) A “pro-rata” share of the cost of sprinkler system operation.
(1) exterior building maintenance and repair of buildings,
(2) lawn maintenance and spraying,
(3) sprinkler system maintenance, alteration and repair.
(2) Maintenance alteration and repair of the sprinkler system within the condominium apartment lot.
(3) A Ys2 share of lawn maintenance and care within the lot.
(4)A Y)2 share of exterior maintenance and repair to the condominium building upon the lot.

Paragraph 6 provides for apportionment equally to the condominium unit owners within a condominium building of the cost of caring for that building and the surrounding grounds comprising their lot. The clause “pro-rata share as hereinafter set forth”, read in context within Sections A, B and C of that paragraph, refers only to the operation of the sprinkler system over the whole project area, and plaintiffs do not contest their obligation to share equally with improved lot owners in the expenses of that operation.

Paragraph 9, entitled “pro-rata share defined” is, however, not in accord with Paragraph 6 as to the obligations of condominium unit owners. In essence, Paragraph 9, with a policy statement, says that the pro-rata share of a condominium unit owner shall be 34i38th (or whatever numberator and denominator prevails at the ."time, depending respectively upon the size of each condominium building and upon the total amount of dwelling in the project area, both condominium and single family), and that each condominium unit owner shall be liable for this “pro-rata” share of Paragraph 6 expenses. This clause is in direct conflict with the directives of Paragraph 6. It is clear the condominium unit owners cannot be liable for both a Ys2nd share of Paragraph 6 expenses on their own lot and a %i38th share of Paragraph 6 expenses over the whole project area.

In construing this contract in favor of the plaintiffs condominium unit owners, we apply to the rule directing that a specific clause takes precedence over a general clause. Cypress Gardens Citrus Products, Inc. v. Bowen Bros., Inc., 223 So.2d 776 (2d DCA Fla.1969). Aetna Life Ins. Co. v. White, 242 So.2d 771 (4th DCA Fla.1970):

“Further, where there are general and special provisions in a contract, relating to the same thing, the special provisions will govern in its construction over matters stated in general terms.” 242 So.2d at 773.

It is only reasonable that condominium unit purchasers properly relied upon the specific language in Paragraph 6, Sections A, B and C, and concluded that they were liable for a %2nd share of the described expenses, even though Paragraph 9 was in conflict. The reference in Paragraph 9 to Paragraph 6 expenses is a general one, and is applicable only to those portions of Paragraph 6 that are not exempted by specificity from that general directive. Section D of Paragraph 6, for example, deals with recreation lands. The condominium unit owners do not contest their obligation to pay a Paragraph 9 pro-rata share of expenses dealing with recreational lands, and it is notable that Section D makes reference to the “pro-rata share as hereinafter defined,” as did the portion of Section A, dealing with sprinkler system operation.

The Association and the improved lot owners have urged that the whole declaration must be considered and the general intent of the contract should prevail. This proposition is a basic one and unquestionably valid. Lalow v. Codomo, 101 So.2d 390 (Fla.1958); see 3 Corbin on Contracts, Purposes and Methods § 549 (1960); 7 Fla.Jur., Contracts § 77 (1956). We feel that our interpretation is in accord with the general intent of the contract, and with the general policy statement in Paragraph 9. The specific provisions of Paragraph 6, read in context with the general provisions of Paragraph 9, evidence a general intent that condominium unit owners pay for certain expenses inherent in condominium ownership, and share on a pro-rata basis (as defined in Paragraph 9) those expenses which accrue to both unit and improved lot dwellers — such as recreation land maintenance.

We support this conclusion by reference to the analogous Paragraph 6 in the improved lot owner declaration, where it appears that improved lot owners are personally liable for certain maintenance singular to their position as single family residence owners. In Paragraph 6, Section A, of the improved lot owners’ declaration, for example, the improved lot owner is made liable, not for a pro-rata share of the maintenance of the sprinkler system in the project area, but within the subdivision, In Paragraph 6, Section B, of the improved lot owners’ declaration the improved lot owner is liable for a pro-rata share “as hereinafter set forth” of the lawn maintenance within the subdivision, upon recreation lands, and, notably, for the full cost of replacement of sod upon his own lot. Section B also contains the statement that the purpose of this maintenance is to keep the subdivision uniform in appearance. This infers that the houses in the subdivision should be kept on a par with each other, but would not lead the improved lot owner to suppose he would in any way be liable for lawn care upon condominium building lots.

We are not unaware that a disparity exists between Paragraph 6, Section C, of the condominium unit owners’ declaration and Paragraph 6, Section C, of the improved lot owners’ declaration. The former requires the condominium unit owners to pay their specific fractional share of their own building maintenance, and the latter requires the improved lot owners to be liable only for their total pro-rata share of exterior maintenance and repair within their subdivision. (It is notable that under the specifics of their Paragraph 6 the improved lot owners would not be lead to suppose they would in any way be liable for exterior maintenance upon condominium buildings.) If this literal situation prevailed, then collections for the improved lot exterior building maintenance would not equal the total cost of that maintenance; the collection would only equal the improved lot owners’ “pro-rata” share less the condominium unit owners’ “pro-rata” share, as we hold the condominium unit owners are not liable under their contract for such amount.

In recognition of this disparity, and in order to respond to the general intent of the contracts — which we find to be the intention to house both condominium unit owners and improved lot owners, each to sustain certain expenses incident to this choice of accommodations, we hold the provisions of both declarations are most fairly and reasonably interpreted by requiring the condominium unit owners to be liable solely for a share equal to a fraction (the numerator of which is one, and the denominator the number of apartments in the subject building) of their Paragraph 6 expenses (except for sprinkler operation and recreation expenses which are subject to their Paragraph 9 pro-rata liability); and for improved lot owners to be liable for their fractional share (dependent upon the number of improved lots within the subdivision) of their Paragraph 6 expenses (except for sprinkler operation, sod replacement on individual lots, and recreation land expenses which are subject to Paragraph 10 pro-rata liability, as Paragraph 10 defines fractional pro-rata share in the improved lot owners’ declaration).

In conclusion, we find, although the issue is close, that the trial court was in error in finding the condominium unit owners liable for all their Paragraph 6 expenses in the project area on a pro-rata basis as defined in their Paragraph 9. Reversed and remanded with directions for further proceedings consistent herewith.

Reversed and remanded.

MAGER, J., and MOE, LEROY H., Associate Judge, concur.

      . A management association whose Board of Directors is elected by all Beisureville residents.

      . The parties stipulated that the three items of service in issue were:

      . “6. RESERVATIONS FOR LAWN, SPRINKLER SYSTEM MAINTENANCE, ETC.

      “A. Sprinkler System, The COMMUNITY ASSOCIATION shall operate, maintain, repair and alter a fresh water sprinkler system constructed over, through and upon all of the LOTS, accordingly, there is hereby reserved in favor of the COMMUNITY ASSOCIATION the right to operate, maintain, repair and alter a fresh water sprinkler system over, through and upon the LOTS, and each APARTMENT OWNER shall be liable to the COMMUNITY ASSOCIATION for Ms prorata share, as hereinafter set forth, of the reasonable cost of operation of said system,, and the maintenance, alteration and repair of the portion of said system lying within the LOT.

      “B. Lawn Maintenance and Spraying. The COMMUNITY ASSOCIATION shall maintain and care for all lawns, trees and shrubbery upon the LOT, accordingly there is hereby reserved in favor of the COMMUNITY ASSOCIATION the right to enter over, through and upon all of the LOTS for the purposes of maintaining and caring for the lawns, shrubbery and trees located hereon. Each APARTMENT OWNER is hereby made liable to the COMMUNITY ASSOCIATION for a one-thirty-second fractional share of the reasonable cost of all such maintenance and, care from time to time performed by the COMMUNITY ASSOCIATION. “Maintenance and care” within the meaning of this subpara-graph B . Each such owner shall be further liable to the COMMUNITY ASSOCIATION for a one-thirty-second fractional share of the full reasonable replacement of sod, trees and shrubbery (as the same shall be determined from time to time by the BOARD in its sole discretion) upon the LOT. In the exercise in this regard, the BOARD shall be governed by the principal that all lawns shall be fully maintained, free from unsightly bald spots or dead grass, and uniform in texture and appearance with surrounding lawns in the PROJECT AREA, and that dead or dying trees and shrubbery shall be replaced with healthy plants.
      “C. Exterior Maintenance and Repair of Buildings. The exterior of the building located on the LOT shall be maintained and repaired on a periodic basis by the COMMUNITY ASSOCIATION, and there is hereby reserved in favor of the COMMUNITY ASSOCIATION the right to enter upon all of the LOT and building located thereon for the purpose of conducting a periodic program of exterior maintenance and repair, which maintenance and repair shall include, but shall not be limited to repainting and repair of exterior walls, shutters, trim, eaves, roofs, or any portion of the foregoing. The times when such maintenance and repair and the extent thereof shall be determined by the BOARD in its sole discretion. Each APARTMENT OWNER is hereby made liable to the COMMUNITY ASSOCIATION for a one-tUrty-second fractional share of the reasonable cost of the conduct of such periodic maintenance and repair from time to time performed by the COMMUNITY ASSOCIATION. The COMMUNITY ASSOCIATION shall not be responsible for repairing or replacing a building or structure which in the BOARD’S opinion, shall have been destroyed, nor shall the COMMUNITY ASSOCIATION be responsible for repairs beyond’ the exterior surfaces of buildings, all such repairs being the responsibility of the APARTMENT OWNER as provided by Declaration of Condominium relating to this APARTMENT.” (Emphasis added.)
      There is a separate declaration with an analogous paragraph for improved lot owners. We deal, initially, only with the unit owners’ declaration. It was the language in that declaration that formed the contract between sellers — who are not parties in this suit— and the unit owners.

      . The term “Lot” is defined in the unit declaration as “the foregoing described lands.” Those lands comprise the parcel upon which the condominium building is constructed.

      . There are 32 units within the condominium affected by the declaration under discussion.

      . PRORATA SHARE DEFINED. DEVELOPER shall cause the LOT to be made subject to the condominium form of ownership as provided by Chapter 711, Florida Statutes, said condominium to consist of one two-story apartment building containing thirty-two APARTMENTS.

      The condominium is to be constructed and maintained under the Palm Beach Leisureville plan of community-wide maintenance applicable throughout the PROJECT AREA. According and in order that all buildings, structures and improvements within the PROJECT AREA may be maintained to an equally high degree by one organization, and in order that the cost of such maintenance may be kept low through bulk contracting, the COMMUNITY ASSOCIATION has been incorporated to provide maintenance services throughout the PROJECT AREA. And since the maintenance program which may he a direct benefit to one group of residence buildings will also serve indirectly to benefit all portions of the PROJECT AREA, the cost of such maintenance shall be borne equally by the owners of the several lots in the subdivided portions of the PROJECT AREA, together with the APARTMENT OWNERS. Prior to the filing of this Declaration of Restrictions the DEVELOPER caused lands within the PROJECT AREA to be platted into subdivisions containing a total of 1,106 lots, each of which bears an equal share of the expenses incurred by the COMMUNITY ASSOCIATION in the performance of its services and obligations. There being 1,106 previously platted lots and apartments within the PROJECT AREA and thirty-two (32) APARTMENTS to be constructed upon the LOT, the DEVELOPER hereby establishes a new fractional prorata share with respect to the following subdivisions:
      $ h* ^ * ♦
      said new fractional prorata share being a one-one-thousandth-one-hundred-thirty-eighth (l/ji38th) share. Until such time as additional lands in the PROJECT AREA are platted and lots therein improved by DEVELOPER, each Improved Lot (as defined in the several declarations of restrictions referred to below) in the foregoing referred to subdivisions shall be liable for a one-o'ne-thousandth-one-hundred-thirty-eighth (Ytizd^h) share of all expenses in-curved by the COMMUNITY ASSOCIATION in its performance of its services and obligations under paragraph 6 of the following declarations of restrictions, to-wit:
      ‡ ‡ *

        which fractional share is hereby defined as the Prorata Share. The Prorata Share which shall be applicable to the LOT, as defined herein shall be thirty-two-one-thousandth-one-hundred-thirty-eighth . The respective prorata shares herein defined and established shall continue until such times as DEVELOPER shall cause additional lands in the PROJECT AREA to be subdivided of record, or declares said lands to be subject to the condominium form of ownership, at which time DEVELOPER shall also file among the Public Records of Palm Beach County, Florida, a declaration of restrictions similar in substance to this Declaration, which declaration shall establish a new fractional Prorata Share which shall be equally applicable to all lots in all subdivisions created by DEVELOPER within the PROJECT AREA according to this plan, which fractional share shall then be the Prorata Share defined herein. In every such subsequent declaration of restrictions the numerator of the fractional prorata share applicable to the LOT shall be 32, and the denominator of said fractional prorata share shall be the sum total of the lots previously platted by DEVELOPER within the PROJECT AREA, together with the number of APARTMENTS created by Declarations of Condominium filed by DEVELOPER with respect to lands within the PROJECT AREA . . . .” (Emphasis supplied.)

      . “D. Recreation, Lands. Each APARTMENT OWNER shall enter into a lease for an undivided one-five-thousandth fractional leasehold interest in and to certain lands within the PROJECT AREA, as well as to certain additional lands which may be made subject to said lease at a latter date, and the COMMUNITY ASSOCIATION has agreed that the operation, maintenance, repair and insuring of the buildings, structures and other improvements from time to time located thereon together with the payment of ad valorem real and personal property taxes and assessments levied thereon shall be the responsibility of the COMMUNITY ASSOCIATION acting for and on behalf of the APARTMENT OWNERS as Lessees. Accordingly, each APARTMENT OWNER is hereby made liable to the COMMUNITY ASSOCIATION for a prorata share, as hereinafter set forth, of the reasonable cost of the operation, maintenance, repair and insuring of the buildings, structures and parking facilities from time to time located upon the lands made subject to the aforesaid leases, together with a prorata share as hereinafter set forth of the ad valorem real and personal property taxes and assessments levied thereon.”

      . “And since the maintenance program which may be a direct benefit to one group of residence buildings will also serve indirectly to benefit all portions of the PROJECT AREA, the cost of such maintenance shall be borne equally by the owners of the several lots in the subdivided portions of the PROJECT AREA, together with the APARTMENT OWNERS.”

      . Taking for example the cost of exterior building maintenance, the Defendant Association has at one time assessed condominium apartment owners for the exterior building maintenance costs incurred in maintaining 1500 single family residences, as well as those costs incurred maintaining just thirteen (13) separate apartment buildings. The exterior maintenance costs as to the 1500 units would far exceed the cost of maintaining a separate condominium apartment building.

      . “6. IMPROVED LOTS
      * * * * *

      “A. Sprinkler System. The ASSOCIATION shall operate, maintain, repair and alter a fresh water sprinkler system constructed over, through and upon all of the SUBDIVISION, accordingly, there is hereby reserved in favor of the ASSOCIATION the right to operate, maintain, repair and alter a fresh water sprinkler system over, through and upon all of the SUBDIVISION and the owners of IMPROVED LOTS in the SUBDIVISION shall be liable to the ASSOCIATION for a prorata share, as hereinafter set forth, of the reasonable costs of operation of said system and the maintenance, alteration and repair of the portion of said system not lying within a LOT.”
      “Subdivision” is described as “the foregoing lands,” and those lands comprise the property upon which the development of improved lots is found.

      . “B. Lawn Maintenance and Spraying. The ASSOCIATION shall maintain and care for all lawns, within the SUBDIVISION, accordingly there is hereby reserved in favor of the ASSOCIATION the right to enter over, through and upon all of the SUBDIVISION for the purpose of maintaining and caring for such lawns. Each owner of an IMPROVED LOT in the SUBDIVISION is hereby made liable to the ASSOCIATION for a PRORATA SHARE as hereinafter set forth, of the reasonable cost of all such maintenance and care from time to time performed by the ASSOCIATION. . . . Each such owner shall be further liable to the ASSOCIATION for a PRORATA SHARE as hereinafter set forth, of the reasonable cost of replacement of sod, (as the same shall be determined from time to time by the BOARD in its sole discretion) upon the RECREATION LANDS and for the full reasonable cost of all such required replacement upon such owner’s LOT. In the exercise of its discretion in this regard, the BOARD shall be governed by the principal that all lawns shall be fully maintained free from unsightly bald spots or dead grass, and uniform in texture and appearance with surrounding lawns in the SUBDIVISION.”

      . “C.
      * * * * *

        The owner of each IMPROVED LOT in the SUBDIVISION is hereby made liable to the ASSOCIATION for a prorata share, as hereinafter set forth, of the reasonable cost of the conduct of such periodic maintenance and repair from time to time performed by the ASSOCIATION.

      The ASSOCIATION shall not be responsible for repairing or replacing \ a building or structure which in the BOARD’S opinion shall have been destroyed, nor shall the ASSOCIATION be responsible for repairs beyond the exterior surfaces of the buildings, all such repairs being the responsibility of LOT OWNER.”


author: NATHAN, Judge. PEARSON, Judge

text:
    E. Wilson PURDY, in his capacity as Director of the Dade County Public Safety Department, and Metropolitan Dade County, a political subdivision of the State of Florida, Appellants, v. Alan Burton COLE, Appellee.
    No. 74-1245.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.

      Stuart Simon, County Atty., and Stephen P. Lee, Asst. County Atty., for appellants.
    Raymond M. Seidler, Miami, for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

Metropolitan Dade County and E. Wilson Purdy, as Director of the Dade County Public Safety Department, defendants, appeal a final judgment in favor of Alan Burton Cole, plaintiff, in an action for declaratory relief, damages and reinstatement of employment wherein Cole was reinstated as a police officer with back pay.

Cole was employed as a police officer on probationary status with the Dade County Public Safety Department. While so serving as a police officer, he was assigned to the police detail at President Nixon’s Key Biscayne, Florida, residence as a security guard whereupon he was allegedly investigated for security reasons by the United States Secret Service. Information obtained therefrom prompted an investigation by the Internal Review Section of the Metro Public Safety Department. After

such investigation, which included a verified statement from Cole, a report was made to the Director of Public Safety containing the following findings of facts:

“1. While attending the University of Kentucky in 1970, Officer Cole took part in anti-police demonstrations that were held on campus.
2. That Officer Cole was turned down for the draft due to his physical exam. On the application Officer Cole listed his classification as IA.
3. That Officer Cole made application for the Miami Police Department in March 1971. He was rejected for medical reasons. He failed to put this on his application.
4. That Officer Cole made application for the Miami Beach Police Department and was rejected as a result of the oral interview. He also failed to make notes of this on his application to the Public Safety Department as required.
5. That Officer Cole did wilfully, falsify his application for employment with the Public Safety Department.”

Subsequently, Cole was notified in a letter signed by the Acting Director of the Public Safety Department that his employment was terminated. The letter reads:

“You are hereby released from your position as Police Officer with the Dade County Public Safety Department, effective May 7,1973.
This personnel action is taken based on the following; provisions of the Personnel Rules of Metropolitan Dade County Florida:
Chapter VIII, Section 5: ‘A probationary employee may be discharged or reduced in class or rank, or replaced on the eligible list by the head of the department without charges or hearing.’
Chapter VIII, Section 7, Paragraph Q: ‘Cause for Dismissal, Demotion or Suspension: That the employee, after employment, is found to have made a false statement in his application for employment.’
All department property issued to you, which is still in your possession, is to be returned immediately, and you are to report to the Personnel Section to complete the' necessary checkout procedure.”

Upon termination of his employment by the Public Safety Department, without an administrative hearing, Cole then commenced this litigation seeking declaratory relief, reinstatement and damages. Cole claims he was discharged for constitutionally protected activities, and therefore he was entitled to an administrative hearing pursuant to the personnel rules of Metro Dade County, prior to discharge irrespective of his probationary status. He claims violation of his constitutional rights of freedom of speech, assembly and due process under the United States and Florida Constitutions. In support thereof he cites several United States Supreme Court decisions. The defendants answered the complaint and alleged that Cole was dismissed due to misrepresentations, falsifications or omissions on his employment application; that he accepted employment with Dade County subject to published personnel rules and a one-year probationary period and with full knowledge that misrepresentations, falsifications or omissions on an employment application constitute grounds for dismissal under the personnel rules and that there is no constitutional requirement for notice or hearing prior to discharge of a probationary employee, nor is there such a requirement in Dade County’s personnel rules.

In the final judgment entered in this cause, the trial judge made extensive findings of fact herein paraphrased as follows: The termination of Cole’s employment was not preceded by any constitutionally effective hearing before the Public Safety Department, although one was requested by Cole. The grounds for Cole’s discharge stem from alleged falsification of information in his employment applications, which fall into two separate and constitutionally discrete classifications; first, Cole’s alleged failure to include information as to prior applications to and refusals of employment by other police agencies, as well as a misrepresentation as to his selective service classification, which constitute non-constitutionally protected bases for dismissal; second, those claims vigorously asserted by the Public Safety Department to Cole that he “falsified” his application by not revealing the lawful and constitutionally protected activities of asserting his First Amendment rights of free speech and free assembly during a 1970 campus demonstration at the University of Kentucky while a student there. The court further found that the reasons asserted by the Public Safety Department for Cole’s discharge do not distinguish between the two types of alleged misrepresentations and the report of the Public Safety Department’s investigation refers to the constitutionally protected “charge” in a prominent and predominate manner. Therefore, at least one of the reasons for Cole’s dismissal was that he participated in constitutionally protected activities and because it was thought that failure to reveal same to the Public Safety Department constituted a “misrepresentation” sufficient to justify dismissal.

The trial court, in addition to the above finding, stated that the main reason for Cole’s discharge was the information gleaned from the report made by the United States Secret Service regarding constitutionally protected activities, rather than the misrepresentations and falsifications as to non-constitutionally protected activity on the application; that there were, however, omissions on the application.

The trial court further stated in its findings of fact that subsequent to his discharge, Cole has applied for employment with other police agencies, but such discharge has effectively precluded him from obtaining police employment. Based upon such findings, the trial court ordered the Public Safety Department to restore Cole to his employment in the capacity he occupied before the date of discharge and to grant him all back pay and benefits which otherwise would have accrued from that time until his reinstatement.

Our review of the record discloses that according to Chapter VIII, § 7 of the Personnel Rules of Metropolitan Dade County, see letter from Acting Director to Cole, supra, a false statement in an employment application is cause for dismissal of a county employee. Further, Chapter VIII, § 5 of the Personnel Rules also recited in the letter, states that a probationary employee may be discharged without charges or hearing. Therefore, as a probationary policeman, Cole had no property interest in his employment, and he may be dismissed without a hearing and without cause. Board of Regents of State Colleges v. Roth, infra, and compare Metropolitan Dade County v. Peterson, Fla.App.1975, 311 So.2d 119.

The record reflects that there was an implication that Cole was labeled as a “subversive.” The findings of fact of the internal review section, supra, in efféct charge him with dishonesty or immorality which is damaging to his standing in his community and stigmatizes him by severely injuring his prospects of future employment. When charges are made against an employee which affect his liberty or honesty and integrity or the discharge is based upon constitutionally protected activities, by asserting his first amendment rights of free speech and free assembly, then the due process clause of the United States and Florida Constitutions require that a hearing be held prior to discharge. See Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515; Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548; Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570; U.S. Const. amends. I and XIV, and the Fla. Const. Art. I, §§ 4, 5, 9.

Findings of fact by the trial court are presumed to be correct unless an abuse of discretion is clearly evident. Bond v. Key, 1939, 141 Fla. 160, 192 So. 599. Findings of fact by the trial court will not be overturned unless they are clearly erroneous. Eldredge v. Pettingill, Fla.App.1973, 275 So.2d 266, 267. There is sufficient evidence to support the findings of fact made by the trial court. However, we disagree with the reinstatement of Cole since the record reflects that he admitted that he omitted or falsified information on his employment application. In the transcript of Cole’s Statement to the Internal Review Section of the Public Safety Department, he was asked why he failed to include in his application that he had been turned down by the City of Miami Beach Police Department, and he responded under oath,

“Well because in all reality I would have not been hired by the County. I don’t believe that they would have given me the opportunity to explain the situation then as I have had the opportunity to do now. And it is the truth, I know it. They wouldn’t hire me. ... I was turned down at the oral of Miami Beach. How do you get a chance to prove that you can do police work when the paperwork stops you from getting in the street to prove it, and that’s the truth.”

Due to this admission, the Public Safety-Department had the right to discharge him for non-constitutionally protected activities.

Therefore although we find that the trial court erred in reinstating Cole since the Public Safety Department had a right to discharge him, we also find that Cole is entitled to a hearing, if he so desires, as to the charges relating to his constitutionally protected activities and charges affecting his honesty and integrity which he wishes to challenge or explain. We reject the argument that trial court proceedings serve the purpose of being the hearing to which Cole is entitled. He is entitled to an administrative hearing in order to clear his name after which it shall be left to the Public Safety Department to reinstate Cole or to affirm the discharge as of the original date of discharge.

For the reasons stated, the judgment of the trial court is affirmed in part, reversed in part and remanded with directions to provide for an administrative hearing.

PEARSON, Judge

(concurring in part and dissenting in part).

I concur in the reversal; I see no need for a remand. I would reverse with directions to dismiss the complaint.

The following paragraph from the majority opinion states the law applicable to this case:

“Our review of the record discloses that according to Chapter VIII, § 7 of the Personnel Rules of Metropolitan Dade County, see letter from Acting Director to Cole, supra, a false statement in an employment application is cause for dismissal of a county employee. Further, Chapter VIII, § 5 of the Personnel Rules also recited in the letter, states that a probationary employee may be discharged without charges or hearing. Therefore, as a probationary policeman, Cole had no property interest in his employment, and he may be dismissed without a hearing and without cause. Board of Regents of State Colleges v. Roth, infra, and compare Metropolitan Dade County v. Peterson, Fla.App.1975, 311 So.2d 119.”

Anything further is, in my opinion, sur-plusage.


author: PEARSON, Judge.

text:
    HERTZ INTERNATIONAL, LTD., and the Hertz Corporation, Appellants, v. Virginia RICHARDSON and Frederick Richardson, Appellees.
    No. 74-1234.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 8, 1975.

      Wicker, Smith, Pyszka, Blomqvist & Davant and Richard A. Sherman, Miami, for appellants.
    Podhurst, Orseck & Parks, Colson & Hicks, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PEARSON, Judge.

The appellants, The Hertz Corporation and Hertz International, Ltd., were defendants in the trial court. They appeal a final judgment pursuant to a jury verdict for Virginia Richardson and Frederick Richardson, her husband. The plaintiffs alleged in their complaint that the defendant corporation rented to plaintiffs a defective automobile and that by reason of the defect, they were injured.

The substantial points presented urge: (1) The proof was insufficient to establish the responsibility of these defendants for the act of another corporation which actually furnished the defective automobile; and (2) the Hertz Corporation was improperly joined as a defendant without service of process and the court, therefore, did not have jurisdiction to enter judgment against The Hertz Corporation.

Frederick and Virginia Richardson, husband and wife, were on a trip to England. Upon arriving at the Heathrow Airport in London, they rented a car at a Hertz counter and proceeded to drive to London. Approximately ten miles from the airport the brakes failed and they ran into the automobile traveling ahead of them. As a result of the accident, Mrs. Richardson received injuries to her neck and lower back.

The plaintiffs claimed that the defendant corporations were liable upon the doctrine of apparent or ostensible authority in that they held out the corporation or persons operating the Hertz counter and rental car business at Heathrow Airport, as the agents of The Hertz Corporation and Hertz International, Ltd. See Stuyvesant Corp. v. Stahl, Fla.1952, 62 So.2d 18.

The jury accepted this basis of liability as proved. The trial court found it legally sufficient under the facts presented. In reviewing the sufficiency of the evidence to support the conclusion of law and fact, we must accept the evidence in the light most favorable to the decision of the trial court. Industrial Waste Services, Inc. v. Henderson, Fla.App.1974, 305 So.2d 42. Thus viewed, the facts relative to the issue appear to be as follows: At Heath-row Airport, the counter to which Dr. and Mrs. Richardson presented themselves had signs designating it as the “Hertz” counter. A girl in a “Hertz” uniform served Dr. Richardson from behind the counter, and negotiated the rental of the car with him. The signs in the area were the same as the Hertz signs he had observed on the many, prior occasions he had rented Hertz cars. Some of the signs he had seen simply said “Hertz” some said “Hertz-Rent-A-Car.” All were similar in color and make-up. The counter contained the words “Hertz-Rent-A-Car” and the photographs were described as depicting the Hertz counter which was like most Hertz counters throughout the United States and the world.

The documentation given to Dr. Richardson at the counter left the impression that this was a “Hertz” transaction. The information sheet, the actual Hertz rental agreement, the envelope containing the documentation and the ultimate 19 point check card, all of which were furnished to the plaintiffs, showed “Hertz” as the entity with whom the plaintiffs were dealing. The rental agreement was a standard Hertz lease. On this instrument, to the left of the top caption, the standard Hertz insignia is found. The word “lessor” in small letters appears to the right of the insignia. In black, dark lettering on top of the word “lessor” appear the words “Hertz-Rent-A-Car.” Immediately under the word lessor are the words “Daimler Hire, Ltd.,” in smaller type than the words “Hertz-Rent-A-Car.” The box entitled “Owning District,” contains the word “Hertz.”

Dr. Richardson obtained the form and the keys, and then a man from the counter escorted him and a porter carrying the luggage to the car lot and the subject vehicle. Upon getting into the car, Mrs. Richardson observed a “Hertz 19 point check” card on the back seat. This instrument contained the word “Hertz” in various places. Toward the bottom of the check list were these words: “This Hertz car has passed.” The latter statement was signed with the signature of a “quality inspector.” The word “Hertz” in heavy set type, was printed on the back of the instrument, and the following words also appeared: “Hertz rents Fords and other fine cars.” This too was in heavy set printing.

The back of the instrument contained the handwritten words “brake fluid low.” A check mark through the word “fluid” and an “x” across the check mark, coupled with the initials “o.c.” (thought to be O.K.) were also found on the back. At this juncture (at the airport), Dr. Richardson checked the brakes and found them to be satisfactory.

Answers to interrogatories showed that The Hertz Corporation, in fact, owned all of the stock of Hertz International, Ltd.; Hertz International Ltd., in turn, owned all of the stock of Y.K.P., Holding, Ltd., which, in turn, owned all of the stock of Daimler Hire, Ltd. A defense witness testified that Daimler is an English company “which operates the car rental business under the Hertz name in England.” According to the witness, he believed “that all stations operated in England under The Hertz Corporation are corporate locations of Daimler Hire.”

The evidence further shows that Hertz International, Ltd., is a Delaware corporation with general offices in New York City. The Hertz Corporation is also a Delaware corporation operating rental stations in the United States, and the Hertz “system” is comprised of the self-owned rental stations and franchised operations (representative operators under license from Hertz). These operate under the “Hertz” service mark or trademark.

Hertz International, Ltd., is a holding company, owned by The Hertz Corporation. Hertz International owns shares in companies formed in various countries throughout the world “which operate under the Hertz flag,” and Hertz International has “the exclusive right to grant licenses, franchises, [and] utilization of the mark outside the United States.” •

Stuyvesant Corp. v. Stahl, Fla. 1952, 62 So.2d 18, establishes the applicability of the doctrine of apparent authority to situations similar to the one before us. The remaining question is whether the evidence as set forth is sufficient to support the finding of liability in this case. We hold that the' evidence is sufficient, based upon the law as set forth in the following cases we shall now discuss.

In Knickerbocker Fine Cars, Inc. v. Peterson, Fla.App.1960, 118 So.2d 639, this court dealt with a similar question of the sufficiency of the evidence for ostensible agency. We relied upon the statement of the test as applied by the Supreme Court of Florida in T. G. Bush Grocery Co. v. Conely, 1911, 61 Fla. 131, 55 So. 867, 869, wherein the court stated:

“ Where a principal has, by his voluntary act, placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform a particular act, and therefore deals with the agent, the principal is estopped, as against such third person, from denying the agent’s authority.’ ”

We think that measured by the standard of “a person of ordinary prudence, conversant with business usages and the nature of the particular business” the evidence was sufficient to support the jury’s finding that the plaintiffs were justified in believing that a Hertz Corporation leased the car. See Greyhound Rent-A-Car, Inc. v. Austin, Fla. 1974, 298 So.2d 345; Economy Cabs, Inc. v. Kirkland, 1937, 127 Fla. 867, 174 So. 222. See also Seaboard Properties, Inc. v. Bunchman, 278 F.2d 679 (5th Cir. 1960).

The second substantial question presented is whether the court had jurisdiction to enter a judgment against the defendant, The Hertz Corporation.

Suit was originally filed against “The Hertz Corporation d/b/a Daimler Hire, Limited.” The Hertz Corporation moved to dismiss. Thereafter, plaintiffs amended the complaint and dropped The Hertz Corporation as a defendant. In its place Hertz International, Ltd., was substituted. Service was had on Hertz International. Thereafter, pretrial procedures and discovery were conducted and the same counsel who originally had represented The Hertz Corporation continued to represent Hertz International, Ltd., for almost ten months after the substitution. At that time, the present counsel was substituted. During the trial, plaintiff moved to add The Hertz Corporation as a defendant. The motion was granted and eventually final judgment was entered against both Hertz International, Ltd., and The Hertz Corporation.

Appellees urge that The Hertz Corporation was at all times fully aware of the suit and the basis upon which the “Hertz system” was being charged with liability. It is urged that because of these facts and the fact that the same counsel continued to represent the “Hertz system,” the renaming of The Hertz Corporation was simply the correction of a misnomer. As such, it is urged that it did not amount to the adding of a new party and that such a procedure has been approved by Florida law. See Green v. Peters, Fla.App. 1962, 140 So.2d 601; McNayr v. Cranbrook Investments, Inc., Fla.1963, 158 So.2d 129; Cabot v. Clearwater Construction Company, Fla.1956, 89 So.2d 662; and Sexton v. Panning Lumber Company, Fla.App.1972, 260 So.2d 898, cert, den., Fla.1972, 271 So.2d 764.

It is true that where one corporation uses several names a correction can be made to show the actual entity sued. The present situation transcends that proposition. It was clear from the filing of the first amended complaint that there were two separate corporations. Extensive discovery was carried out. No misrepresentations- were made nor is there a basis for implying misrepresentation. We hold that this is a situation in which the plaintiff knew of the existence of The Hertz Corporation from the beginning and chose to proceed in the suit after dropping The Hertz Corporation as a party defendant. A party must either be in a suit or out; there is no area of limbo where it is subject to recall. Once a party is dropped from a suit, that party can be joined again only by service of process. See Shannon v. McBride, Fla.App.1958, 105 So.2d 16; Scott v. Permacrete, Fla.App.1960, 124 So.2d 887. We conclude, therefore, that appellant has demonstrated error under its second point and that the judgment against The Hertz Corporation must be reversed.

Accordingly, the judgment appealed is affirmed as to the defendant Hertz International, Ltd., and the judgment appealed is reversed as to The Hertz Corporation.

Affirmed in part and reversed in part.

      . We are mindful of the holding in Jefferson Realty of Fort Lauderdale, Inc. v. United States Rubber Company, Fla.1969, 222 So.2d 738; however, we find the present case clearly distinguishable from the cited case on the basis of different circumstances, particularly with regard to the fact that the Jefferson Realty ease does not give rise to the situation for which we cite the Shannon and Seott cases above.


text:
    G-W DEVELOPMENT CORPORATION, a Florida Corporation, and George G. Graham, Individually, Appellants, v. The VILLAGE OF NORTH PALM BEACH ZONING BOARD OF ADJUSTMENT and Mader & Ryan, Inc., a Florida Corporation, Appellees.
    No. 74-1047.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1975.

      R. Harris Turner, Turner & Shapiro, Miami, for appellants.
    Mádison F. Pacetti, Caldwell, Pacetti, Barrow & Salisbury, Palm Beach, for ap-pellee-Village of North Palm Beach Zoning Board of Adjustment.
    Frederick Hollingsworth and Gary I. Zwickel, Sales & Christiansen, Palm Beach, for appellee-Mader & Ryan, Inc.
   OWEN, Judge.

Absent statutory authority, does the circuit court have jurisdiction to review a quasi-judicial decision of a municipal zoning board? We answer this question in the affirmative.

For a number of years Fla.Stat. § 176.16 (1971) provided the means for statutory certiorari review of municipal zoning decisions. However, with the repeal of Ch. 176, F.S. by Ch. 73-129, Laws of Fla. (1973) (effective October 1, 1973), questions arose as to the proper method, if any, to obtain judicial review of municipal zoning decisions in those municipalities which had not seen fit to implement the provisions of Fla.Stat. § 163.250 (1973) by appropriate ordinance as provided in Fla. Stat. § 163.175 (1973).

The Village of North Palm Beach, a municipal corporation, is in this latter category. Thus, when appellants, being aggrieved by a decision of the municipal zoning board of adjustment sought review by a petition for writ of certiorari in the Circuit Court of Palm Beach County, they found their petition dismissed by the court on the grounds that it lacked jurisdiction to entertain it. Although we agree that the circuit court did not, because of the repeal of Ch. 176, F.S., have jurisdiction by statutory certiorari to review the municipal zoning decision, we hold that the court did have jurisdiction by common law certiorari to review such decision.

The jurisdiction of the circuit courts derives from Art. V, § 5(b) of the Florida Constitution (1972) which provides as follows :

“Jurisdiction. The circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law. They shall have the power to issue writs of mandamus, quo warranto, certiorari, prohibition and habeas corpus, and all writs necessary or proper to the complete exercise of their jurisdiction. Jurisdiction of th.e circuit court shall be uniform throughout the state. They shall have the power of direct review of administrative action prescribed by general law.” (e. s.)

This constitutional provision confers upon the circuit courts two independent jurisdictional bases for reviewing administrative action: the first is by common law certio-rari; the second is as may be prescribed by general law, otherwise commonly referred to as statutory certiorari.

Courts and other legal authorities have always recognized a distinction between review by common law certiorari and review by appeal which is provided by law. Arvida Corporation v. City of Sarasota, 213 So.2d 756, 761 (2nd DCA Fla. 1968); Rogers & Baxter, “Certiorari in Florida”, 4 U. of Fla.Law Review 477, at 493 et seq. (1951); 5 Fla.Jur., Certiorari, § 5 (1955). There are at least four distinguishing features.

First, and perhaps most significantly, common law certiorari is generally available only “where no direct appellate proceedings are provided by law.” Board of Public Instruction of Duval County v. Sack, 212 So.2d 819, 821 (1st DCA Fla. 1968); 5 Fla.Jur., Certiorari, § 8, at 491, and § 24, at 515; 14 Am.Jur.2d, Certiorari, § 11 (1964). The writ is available to obtain review where no other method of appeal is available. De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957); Codomo v. Shaw, 99 So.2d 849, 852 (Fla.1958). Thus, review by common law certiorari and that by appeal are ordinarily mutually exclusive.

Second, common law certiorari is entirely discretionary with the court, as opposed to an appeal which is taken as a matter of right. Arvida Corporation v. City of Sarosota, supra; 5 Fla.Jur., Certiorari, § 10; 14 Am.Jur.2d, Certiorari, § 4.

Third, the scope of review by common law certiorari is traditionally limited and much narrower than the scope of review on appeal. As stated in 5 Fla.Jur., Certiorari, § 24, at 514-16:

“As a general rule, it has been stated, certiorari goes only to jurisdiction and legality or regularity in procedure. More broadly, it is said that common-law certiorari lies to determine whether the lower court exceeded its jurisdiction or did not proceed according to the essential requirements of the law in cases where no direct appellate proceedings are provided by law. Or, as it has been so often even more fully expressed, cer-tiorari is a common-law writ that issues in the sound judicial discretion of a superior court to an inferior court, not to take the place of an appeal, but to cause the entire record of the inferior court to be brought up by certified copy for inspection, in order that the superior court may determine from the face of the record whether the inferior court has exceeded its jurisdiction or has not proceeded according to the essential requirements of the law in cases where no direct appellate proceedings are provided by law. As so conceived, review on cer-tiorari is said to be limited as compared with review on appeal.” [footnotes omitted]

See also, Arvida Corporation v. City of Sarasota, supra; Rogers & Baxter, supra, at 493-502 and cases cited therein; 1 Fla. Jur., Administrative Law, § 181 (1955). In the case of appellate review of administrative decisions by statutory certiorari, the “review” is sometimes even broader and may be, as was the case with Chapter 176, “in the nature of a trial de novo”. Dade County v. Carmichael, 165 So.2d 227, 229 (3rd DCA Fla.1964).

Finally, common law certiorari will only lie to review judicial or quasi-judicial action, Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541, 544 (1942); 2 Yokley, Zoning Law and Practice, § 18-8, at 378 (1965), never purely legislative action, id. § 18-9, at 394, in contradistinction to review by appeal which is provided by law and by which the legislature can authorize review of a wider scope. An example of this is provided by Chapter 176 itself which authorized review of “any decision of the board of adjustment”, § 176.16, F.S. (e. s.), which has been interpreted to include review of such purely legislative action as adopting zoning ordinances. See, Dade County v. Carmichael, supra.

Considering Art. V, § 5, in the light of this traditional and well defined distinction between statutory and common law certiorari, it becomes obvious that the drafters of this provision intended to provide for both methods of review; the second sentence granting the circuit courts the power to issue writs of certiorari obviously refers to common law certiorari; the last sentence conferring “the power of direct review of administrative action prescribed by general law,” just as obviously refers to statutory certiorari. They cannot, as appellees in the case at bar argue, possibly refer to one and the same power, because, by definition, certiorari review is not direct appellate review and is not provided for by law, but, entirely to the contrary, is only available, at the discretion of the court, when there is no other right to review provided by law.

Once it is determined that the Constitution confers two separate types of certiora-ri jurisdiction upon the circuit court, there is no problem in concluding that where the legislature fails to provide for statutory review, or statutory certiorari as it is called, common law certiorari is still available. This principle has been recognized rather uniformly by cases and legal writers alike: see, Codomo v. Shaw, supra, at 852; Board of Public Instruction of Duval County v. Sack, supra; State v. Simmons, 104 Fla. 487, 140 So. 187, 190 (1932); 2 Yokley, Zoning Law and Practice, § 18-9, at 389-90; Rogers & Baxter, supra.

In short, the Florida Constitution has always vested common law certiorari jurisdiction in the circuit courts. Wherever the legislature has seen fit to vest the circuit court with statutory certiorari jurisdiction, such jurisdiction is independent and cumulative, so that where the statutory remedy for some reason fails, or is simply rescinded, as here, common law certiorari is still available to review, at least to the limited extent that review is permitted under the writ, the quasi-judicial action of inferior tribunals. Chapter 176, F.S., having been repealed, leaving the circuit court with no statutory certiorari jurisdiction to review the orders of the North Palm Beach Municipal Zoning Board, the court still had jurisdiction to review by petition for common law certiorari.

The argument is made that it was the legislative intent under the “Municipal Home Rule Powers Act”, Ch. 73-129, Laws of Fla. (1973), that municipalities should continue to exercise all powers theretofore conferred on them by Ch. 176, F.S., (and other chapters not here relevant) if the municipality so provided by ordinance. We expressly do not here decide the question of whether such provision, now codified as Fla.Stat. § 166.042 (1973) would enable a municipality, by ordinance, to confer upon the circuit court statutory certio-rari jurisdiction of the type formerly authorized by Fla.Stat. § 176.16 (1971), as that question is not before us because at the time this cause of action arose the Village of North Palm Beach had not sought to enact such an ordinance.

The order dismissing with prejudice appellants’ amended complaint is reversed and this cause remanded for further proceedings consistent herewith.

Reversed and remanded.

WALDEN, C. J., and MORIARITY, HERBERT W., Associate Judge, concur.

      . See generally, 5 Fla.Jur., Certiorari, § 9, for the exceptions to this rule which are not relevant here.