author: HATCHETT, Justice. ENGLAND, Justice,

text:
    AVILA SOUTH CONDOMINIUM ASSOCIATION, INC., a Florida non-profit Corporation, in its own interest and behalf of its members, et al., Petitioners, v. KAPPA CORPORATION, a Florida Corporation, et al., Respondents.
    No. 48753.
    Supreme Court of Florida.
    March 31, 1977.
    As Corrected on Denial of Rehearing June 13, 1977.

      Alan S. Becker and Jeffrey E. Streitfeld of Becker & Poliakoff, P.A., Miami Beach, for petitioners.
    Gerald F. Richman and James D. Little, of Frates, Floyd, Pearson, Stewart, Rich-man & Greer, Miami, for respondents.
   HATCHETT, Justice.

Petitioners stated several counts in a complaint, which was met with a motion to dismiss. The trial court dismissed with prejudice the first, fifth, seventh, and eighth counts, and ordered the class action allegations stricken as to the remaining counts. In striking the class action allegations, the trial court ruled Section 711.12(2), Florida Statutes (1975), unconstitutional. In dismissing Count I, which was grounded on Section 501.204, Florida Statutes (1975), the trial court declared Section 501.204 unconstitutional. An appeal was taken from the trial court’s order, but on motion of the appellants, the cause was remanded as to Count I, after Section 501.204, Florida Statutes (1975), withstood constitutional attack in Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976). Still pending here after this partial remand are the questions whether Counts V, VII, and VIII should have been dismissed; whether the class action allegations should have been stricken; and certain other matters raised by cross-assignments of error.

Insofar as the trial court’s order dismissed Counts V, VII, and VIII with prejudice, it was a final order, properly appealable to the District Court of Appeal, unless appealable here on account of “initially and directly passing on the validity of a state statute or a federal statute or treaty, or construing a provision of the state or federal constitution.” Art. V, Section 3(b)(1), Florida Constitution. In granting the motion to dismiss as to Count V, the trial court ruled that Section 711.66(5)(e), Florida Statutes (1975), did not operate retroactively and stated as one reason for this ruling that “retroactive application would be unconstitutional under both the Florida and Federal Constitutions as an impairment of the obligations of contracts.” Because of this constitutional construction, which also touches on the validity of a statute, cf. Deltona Corp. v. Bailey, 336 So.2d 1163 (Fla.1976), we have jurisdiction of the appeal from those portions of the trial court’s order which constitute final orders. Division of Beverage v. Foremost-McKesson, Inc., 330 So.2d 143 (Fla.1976); Metropolitan Dade County Trans. Auth. v. State Dept. of Highway Safety & Motor Vehicles, 283 So.2d 99 (Fla.1973); Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973). Insofar as the order appealed is interlocutory in nature, we have treated the appeal papers as a petition for certiorari. Harris v. Beneficial Finance Co., 338 So.2d 196 (Fla.1976); Rogers v. Johnson, 326 So.2d 185 (Fla.1976); Burnsed v. Seaboard Coastline Railroad Co., 290 So.2d 13 (Fla.1974). Because of the importance of the class action question, and because the trial court ruled Section 711.12(2), Florida Statutes (1975), unconstitutional, we granted certiorari in an unreported order entered September 21, 1976.

The complaint below was filed by Avila South Condominium Association, Inc. (the Association), in its own right and on behalf of the Association members. Membership in the Association, which is a nonprofit corporation charged with managing the Avila South Condominium in Dade County, is limited to owners of the 196 condominium units which comprise the Avila South Condominium. Also named as plaintiffs were four individual members of the Association, who sued in their own right and on behalf of all other persons similarly situated. The three corporate defendants were alleged to have been “owners and developers of the tract, building, and appurtenances submitted to condominium as the Avila South Condominium,” and the same corporations were alleged to own certain recreational facilities which they leased to the Association. The complaint alleged that the individual defendants Wolofsky and Schuster had been the “original incorporators and directors of the Association” and had contracted the recreational lease with the corporate defendants on behalf of the Association, but also that Wolofsky and Schuster were officers and directors of the corporate lessors. In eight counts, the complaint assailed the legality of the recreational lease. Of the various theories underlying the several counts of the complaint, half were rejected by the trial court and appealed here; and the defendants cross-assigned as error the failure to dismiss the remaining counts. Before us for decision are questions touching the sufficiency of the entire complaint with the exception of the first count, which has been remanded to the trial court.

In Count II the plaintiffs sought a declaratory judgment as to the ownership of the condominium units, which are leased by the corporate defendants to the Association for recreational purposes. Although when a proper party brings suit, “declaratory judgment is ... an appropriate means for resolution of such a controversy,” State v. Florida National Properties, Inc., 338 So.2d 13, 20 (Fla.1976) (separate opinion of Hatchett, J.), it is a well-established rule that lessees are estopped from denying their lessors’ title, during the existence of the relationship of landlord and tenant. See Annot., 87 A.L.R.2d 602 (1963); Annot., 51 A.L.R.2d 1238 (1957).

[A] tenant is estopped to assert that a better title than the landlord’s is outstanding in some third person or is in himself. This doctrine, although traceable to the feudal tenures, when the connection between landlord and tenant was much more intimate than it is at present, is not merely technical, but is founded in public convenience and policy, because it tends to encourage honesty and good faith between landlord and tenant. As has been said in this connection, a person entrusted with the possession of property shall not betray that possession.
The doctrine of estoppel of a tenant to deny his landlord’s title extends to all species of tenancy, including tenancies at will, and is fully recognized in courts of equity as well as in courts of law. It applies where an agent executes a lease in his own name as lessor, and the lessee is estopped to deny the agent’s title. 49 Am.Jur. Landlord and Tenant § 109 (1970) (footnotes omitted).

The property in controversy is leased by the corporate defendants to the plaintiff Association. Without regard to the merits of the dispute as to title, therefore, the second count of the complaint was dismissed as to the Association, on the ground that the Association lacked standing to question the defendants’ ownership. See Reibel v. Rolling Green Condominium Association, Inc., 311 So.2d 156 (Fla.3d DCA 1975); Commodore Plaza At Century 21 Condominium Association, Inc. v. Saul J. Morgan Enterprises, Inc., 301 So.2d 783 (Fla.3d DCA 1974).

The Association, which is a corporation not for profit, cannot confer on its members any greater rights as against third parties than the Association itself has. Where a lessee has no standing to sue, any sub-lessee must also lack standing, a fortio-ri. Just as the rights of stockholders in derivative actions are coextensive with those of the corporation, so here the members’ derivative claim for declaratory relief in Count II must fail, because the Association is estopped to deny the defendants’ title. The named, individual plaintiffs sued not only as members of the Association, but also in their capacity as unit owners. When viewed as third party beneficiaries under the recreational lease, the unit owners are in no better position, however, because their rights under the recreational léase still flow from the Association’s rights. Accordingly, we affirm the dismissal of count two.

The trial court decided that counts three and four stated a cause of action as to the named, individual plaintiffs but ruled that “a class action is not appropriate for the counts [III and IV] sounding in fraud and deceit.” Appellees-respondents maintain that Counts III and IV should have been dismissed altogether because the “[p]laintiffs affirmatively accepted the premises” and because it was not alleged in either count that anybody was “precluded from seeing the actual premises prior to closing the purchase.” Brief for Respondents, p. 36. The contention that the premises were “affirmatively accepted” goes to the question whether the contracts were subsequently ratified, even if their inducement was fraudulent. Ratification is an affirmative defense- to a contract action, however, and should be pleaded as such; it need not be negatived in the complaint. It is also unnecessary, in alleging fraud in the inducement, for the plaintiff to plead that he was “precluded” from discovering the truth as to the misrepresented facts, so long as the complaint alleges reasonable reliance on material misrepresentations of existing fact. We therefore reject these challenges to the sufficiency of Counts III and IV, and we also conclude that count four, in alleging that the defendants perpetrated a fraud “with willful and wanton disregard of the rights of the [p]laintiffs,” pleaded an adequate predicate for punitive damages.

The fifth count of the complaint is grounded on Section 711.66(5)(e), Florida Statutes (1975), and the complaint sets forth this portion of the statutory language:

Any grant or reservation made by a declaration or cooperative document, lease, or other document, and any contract made by an association prior to assumption of control of the association by unit owners other than the developer, shall be fair and reasonable.

Plaintiffs allege that the recreational lease is unfair and unreasonable in various particulars, all in violation of Section 711.-66(5)(e), Florida Statutes (1975). The trial court dismissed Count V because Section 711.66 was enacted after the lease was entered into, reasoning that the statute was not intended to be retroactive. Alternatively, the trial court ruled that Section 711.66(5)(e) would be unconstitutional, if given retroactive effect. Because we agree that Section 711.66(5)(e) should not be construed to operate retroactively, we do not reach the constitutional question. Division of Beverage v. Foremost-McKesson, Inc., 330 So.2d 143, 145 (Fla.1976); Williston Highlands Development Corp. v. Hogue, 277 So.2d 260 (Fla.1973); Overstreet v. Blum, 227 So.2d 197, 199 (Fla.1969).

In support of the contention that Section 711.66(5)(e) was intended to have retroactive effect, appellants-petitioners rely on certain language in Ch. 74-104, § 19, Laws of Florida, creating Section 711.-66 et seq., etc. Appellants-petitioners argue that Section 711.66(5)(e) “was not among those sections specifically deemed not to apply to pre-existing condominium contracts, thereby manifesting a legislative intent that it should apply.” Brief for Appellants, p. 9. But a statute “is not to be given retrospective application unless it is required by the terms of the Statute or it is unequivocally implied” Keystone Water Co. v. Bevis, 278 So.2d 606, 608 (Fla.1973). The title of the enactment did not give notice of retroactivity, see Chiapetta v. Jordan, 153 Fla. 788, 16 So.2d 641, 645 (1944), and the language on which appellants-petitioners rely does not “unequivocally imply” a legislative intent that Section 711.66(5)(e) operate retroactively. See Fleeman v. Case, 342 So.2d 815 (Fla.1976). In affirming the dismissal of the count alleging violations of Section 711.66(5)(e), we do not preclude the plaintiffs on remand the possibility of stating an amended claim of unconscionability, independent of Section 711.66(5)(e).

In the sixth count, plaintiffs complain of an alleged violation of the homestead exemption provisions of the Florida Constitution. From the pleadings and exhibits, it appears that the Association, which is obligated under the recreational lease, looks in turn to its members, the unit owners, for money with which to pay the lease obligations. The unit owners’ obligations to the Association, including their pro rata shares of lease payments, are secured by liens on the units, which were created upon the filing of the declaration of condominium. The effect of these arrangements, appellants urge, is that homestead property is subject to forced sale for failure to pay for recreational facilities, in contravention of the strong state policy in favor of protecting the homestead against certain creditors. In order to avail himself of the homestead exemption, however, a debtor must establish the homestead character of his property as of the time the lien attaches. The complaint in the present case fails to allege facts that would qualify any unit as homestead property, as of the time of the creation of the liens. For that reason, we conclude that Count VI fails to state a claim for relief. In reversing the trial court’s denial of the motion to dismiss as to Count VI, we do not decide any other question as to the efficacy of a lien of this kind, however, and direct that plaintiffs be given leave to amend this count on remand.

The seventh count alleges self-dealing by the individual defendants Wolofsky and Schuster, who were the original incorpora-tors and, subsequently, officers and directors of the Association. Wolofsky is also alleged to be “an officer and director of Developer-Defendants FONNIK CORP., and LOSCH CORP.,” and Schuster is alleged to serve in the same capacities for Losch Corporation and Kappa Corporation, the third corporate defendant. As officers and directors of the Association, Schuster and Wolofsky are alleged to have contracted the recreational lease between the Association as lessee and the corporate defendants as lessors. The complaint charges that Schuster and Wolofsky “willfully and knowingly entered into the . . . [recreational lease] contrary to the best interests of the Association and its individual members . . . therefore breaching their obligation of trust as a fiduciary of the said Association.”

In support of their contention that the trial court properly dismissed Count VII, appellees-respondents cite our decision in Point East Management Corp. v. Point East One Condominium Corp., 282 So.2d 628 (Fla.1973) cert. den. 415 U.S. 921, 94 S.Ct. 1421, 39 L.Ed.2d 476 (1974), and decisions of the District Court of Appeal, Third District. Commodore Plaza At Century 21 Condominium Ass’n v. Saul J. Morgan Enterprises, Inc., 301 So.2d 783 (Fla.3d DCA 1974); Plaza Del Prado Condominium Ass’n v. GAC Properties, Inc., 295 So.2d 718 (Fla.3d DCA 1974); Wechsler v. Goldman, 214 So.2d 741 (Fla.3d DCA 1968). The Point East case decided that a condominium association could not prevail in an action for rescission of a contract “merely because it arose from the dealings of the developers with themselves while they constituted all of the members of,” 282 So.2d at 629, the condominium association and at the same time owned all the stock in the corporation with which the association contracted. As authority for this proposition, the Court cited Lake Mabel Development Corp. v. Bird, 99 Fla. 253, 126 So. 356 (1930), the same case which was held to govern in Fountainview Ass’n, Inc. No. 4 v. Bell, 203 So.2d 657 (Fla.3d DCA 1967) cert. discharged 214 So.2d 609 (Fla.1968). The plaintiff associations in Fountainview sought not only to avoid a contract between themselves and a developer-controlled corporate lessor, but also to require the individual officers who contracted on behalf of the association to disgorge profits accruing to them under the contracts. Deciding in favor of the developers, the Third District explained:

The defendants contend that because they were the sole officers and directors of the associations at the time the transactions took place, they were not liable to the associations because there were no other members actually belonging to the associations at that time. .
. This is not a case of first impression in Florida. If it were, we might be inclined to the view espoused by the appellants. However, it appears that the Florida Supreme Court opinion cited by the appellee, Lake Mabel Development Corporation v. B[ir]d, supra, disposes of the question.

Because of the great precedential importance which the decision in Lake Mabel Development Corp. v. Bird, supra, has assumed, it deserves close scrutiny, notwithstanding its relative antiquity.

In the course of foreclosure proceedings, Bird was substituted for his predecessor in title, W. H. Marshall, who sought to foreclose on a mortgage given to him by the Lake Mabel Development Corporation (Lake Mabel), as security for a portion of the purchase price of land, which Marshall and the other organizers of Lake Mabel had sold to the corporation. Lake Mabel admitted the indebtedness, but set up as a defense to the foreclosure the fact that Marshall had profited from the sale of land to the corporation he had organized. The Court decided:

There was no error committed in striking that part of the answer averring that complainant and three other promoters had made a theoretical profit of $1,250 per acre for which they received stock in the defendant corporation. There is no averment in the pleadings or showing made by the record that any stock was ever issued or sold by the corporation to the public.
A corporation cannot, while its promoters own all its outstanding stock, avoid in equity a purchase of property sold to it by its promoters at a large profit, represented by stock of the corporation issued to such promoters, since the corporation thus has full knowledge of the facts and the rights of innocent purchasers of stock have not arisen. 126 So. at 358 (emphasis supplied).

The Court did not pass on the “rights of innocent purchasers of stock” and expressly stated that it was not faced with a situation where ownership interests were “ever issued or sold by the corporation to the public.”

The Lake Mabel decision should be viewed in the context of principles generally applicable to transactions between corporations and their officers and directors:

[A] director occupies a trust relation not only to the present stockholders, but also to those who may become such in the future, and ... for this reason, where directors have profited in some secret way, stockholders who are subsequently admitted may demand that an account of the profits be made to the corporation. .
Transactions in which a corporate fiduciary derives personal profit, either in dealing with the corporation or its property, or in matters of corporate interest, are subject to the closest examination, and the form of the transaction will give way to the substance of what has actually been brought about. Personal dealings with the corporation or transactions with the corporation in which the director has some personal interest may be avoided, unless good faith and fairness are shown. While occupying such a fiduciary relation, the officers and directors of a corporation are precluded from receiving any personal advantage without the fullest disclosure to, and assent of, all concerned. 19 Am.Jur. 2d Corporations § 1281 (1965) (footnotes omitted).

The Florida rule as to recovery on behalf of the corporation from officers or directors-, by a party who later acquires stock, was applied in News-Journal Corp. v. Gore, 147 Fla. 217, 2 So.2d 741 (1941). In that case, R. H. Gore, a minority stockholder, recovered for the benefit of the corporation certain moneys which the other two stockholders had caused themselves to be paid by the corporation; each of the majority stockholders drew a salary from the corporation. The salaries were held to be excessive, and this Court ordered the return of the portion adjudged excess, but only back to the date of Gore’s acquisition of the stock.

While reaffirming our decision in Point East, that self dealing by officers and directors of condominium associations, without more, is not actionable, we believe the time has come to reexamine the laconic imprimatur with which we stamped the Third District’s decision in Fountainview Ass’n, Inc. No. 4 v. Bell, supra. The Third District there held that a condominium association could not recover from former officers and directors even when they were guilty of undisclosed self dealing “upon inflated terms.” 203 So.2d at 658. Insofar as is revealed by the opinion, this decision was based entirely on a misapprehension as to the reach of the Lake Mabel case, as we have undertaken to demonstrate, ante pp. 605-607. Neither the Third District nor this Court articulated any basis in public policy for the Fountainview decision, and it is difficult to conceive of any. Certain public interests may be served by leaving to developers the possibility of self dealing; such flexibility may facilitate financing of some phases of some projects, with resulting economies that can be passed on to the public. But there is absolutely nothing to recommend a rule of law which encourages persons in positions of trust secretly to betray their trust for inordinate personal gain, at the expense of those to whom they owe a fiduciary duty. We now reaffirm our decision in News-Journal Corporation v. Gore, supra, and hold that any officer or director of a condominium association who has contracted on behalf of the association with himself, or with another corporation in which he is, or becomes substantially interested, or with another for his personal benefit may be liable to the association for that amount by which he was unjustly enriched as a result of his contract. However, no director or officer shall be required to return any portion of moneys paid by the association where it is shown that he received the funds with the consent of the association or with the consent of a substantial number of the individuals comprising the association. After careful consideration of the facts in each case, based upon specific findings, the trial judge, in his discretion, shall grant such relief as equity dictates.

The eighth and final count of the complaint alleges a violation of Section 542.05, Florida Statutes (1975), in that the defendants “preclude competitors . from offering the same or similar [recreational] facilities.” In dismissing this count, the trial court concluded “that § 711.64 and its predecessor § 711.121 control specifically over the general provisions of Florida Statutes § 542.05 and § 542.10, and that accordingly, Count VIII fails to state a cause of action.” Although Section 711.64 has now been repealed, Ch. 76-222, Laws of Florida, we believe the trial court correctly held that tying recreational facilities to housing is at the heart of the condominium concept, a concept which has been repeatedly sanctioned both by the legislature and by the courts; we affirm the trial court’s dismissal of the eighth count.

On remand, the plaintiffs have available the theories stated in counts three, four, and seven, and the possibility of amending counts five and six to state a cause of action. We turn now to question of standing with respect to each of these claims. At the outset we concur with the trial judge that Section 711.12(2), Florida Statutes (1975), and its successor, Section 718.111(2), Florida Statutes (1976 Supp.) constitute an impermissible incursion by the legislature into the exclusive prerogative of this Court to adopt rules for “practice and procedure in all courts.” Article V, Section 2(a), Florida Constitution. As so aptly stated by Mr. Justice Adkins concurring in In re Florida Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla.1972):

Practice and procedure encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. “Practice and procedure” may be described as the machinery of the judicial process as opposed to the product thereof.
Examination of many authorities leads me to conclude that substantive law includes those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property. As to the term “procedure,” I conceive it to include the administration of the remedies available in cases of invasion of primary rights of individuals. The term “rules of practice and procedure” includes all rules governing the parties, their counsel and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution. See Kellman v. Stoltz, 1 F.R.D. 726 (N.D., Iowa, 1941).

Measured by the quoted standard we can only conclude that the statutes in question deal with matters of procedure and not substantive rights. Essentially the statutory sections seek to define the proper parties in suits litigating substantive rights. Clearly this has to do with “the machinery of the judicial process as opposed to the product thereof.” See cases cited in In re Florida Rules of Criminal Procedure, supra. Accordingly, all portions of Section 711.-12(2), Florida Statutes (1975), and Section 718.111(2), Florida Statutes (1976 Supp.) save and except the first two sentences of each are hereby found to be unconstitutional.

However, the peculiar features of condominium development, ownership, and operation indicate the wisdom of providing a procedural vehicle for settlement of disputes affecting condominium unit owners concerning matters of common interest. Therefore, we adopt the substance of the statutory sections herein invalidated as a rule of procedure by amending Fla.R.Civ.P. 1.220 to read as follows:

Rule 1.220. Class Actions
(a) Generally.
When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.
(b) Condominium Associations. After control of a condominium association is obtained by unit owners other than the developer, the association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all unit owners concerning matters of common interest, including, but not limited to, the common elements; the roof and structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving an improvement or a building; representations of the developer pertaining to any existing or proposed commonly used facilities; and protesting ad valorem taxes on commonly used facilities. If the association has the authority to maintain a class action under this section, the association may be joined in an action as representative of that class with reference to litigation and disputes involving the matters for which the association could bring a class action under this section. Nothing herein limits any statutory or common law right of any individual unit owner or class of unit owners to bring any action which may otherwise be available.

Cf. Carter v. Sparkman, 335 So.2d 802, 806 (Fla.1976).

Counts three and four allege fraud, and for that reason fall under the rule of Osceola Groves v. Wiley, 78 So.2d 700 (Fla.1955), that recovery for fraud on separate contracts cannot be had in a class action. The Association as well was named as plaintiff, but, taken as a whole, the complaint does not fairly allege reasonable reliance, by the Association, as opposed to the individual purchasers, on misrepresentations of existing fact. Neither was the Association alleged to be a party to any of the contracts allegedly fraudulently induced. The Association is therefore authorized to sue only if the fraud claims of the members constitute “matters of common interest.” The clear import of Osceola Groves v. Wiley, supra, is that fraud claims on separate contracts are inherently diverse, as a matter of law, because “the demands of the various defrauded parties are not only legally distinct, but each depends upon its own facts . [and] a choice of remedies is ordinarily presented.” 78 So.2d at 702 (citing Note, 1938, 114 A.L.R. 1015, 1019). We therefore conclude that the Association lacks standing with respect to the fraud claims, for much the same reasons that lead us to the conclusion that fraud claims on separate contracts cannot be consolidated into a class action.

Although not grounded on a contract theory, the self-dealing claim in Count VII is nevertheless concerned with a contract to which the Association is alleged to be a party, namely, the recreational lease. As this cause of action has been pleaded, the Association is the only party that may properly bring suit because the allegation, boiled down, is that a fiduciary duty owed to the Association was breached. While the Condominium Act expressly saves “any statutory or common law right of any individual unit owner or class of unit owners to bring any action which,” is available independently of the Act, Section 718.111(2), Florida Statutes (1976 Supp.), the named, individual plaintiffs in the present case did not plead any injury to themselves distinct from the injury done the Association.

In the event the unconscionability count is amended to state a cause of action on remand, the Association would have standing again because the Association is alleged to be a party to the lease. The named, individual plaintiffs are also interested as third party beneficiaries under the recreational lease and might be able to state a claim whether as individuals or as a class. With respect to the sixth count, however, there is no possibility of a class action because the homestead status of each condominium unit will depend on facts peculiar to it. Corporations have no homestead exemption, of course, so the Association could not properly raise such a claim.

The judgment is reversed insofar as it sustains count two as to the individual plaintiffs, and insofar as it dismisses count seven, and in dismissing counts five and six with prejudice; the judgment is affirmed insofar as it dismisses counts three and four as to the class and the Association, and insofar as it dismisses count eight as to all parties.

OVERTON, C. J., and BOYD, SUND-BERG and DREW (Retired), JJ:, concur. '

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

ADKINS, J., dissents.

ENGLAND, Justice,

concurring in part and dissenting in part.

My brother Hatchett has provided a thoughtful and careful analysis of the difficult issues presented in this case. My limited disagreement with his conclusions reflects my view that, in the area of recreation leases, the incremental steps now being adopted are simply inadequate to redress the gross imbalance which exists between condominium developers and unit owners. I would do more, by reversing the trial court’s dismissal of counts three and four.

In counts three and four, plaintiffs assert a class action for fraud. I would not bar them from pursuing it. Plaintiffs allege that the developers fraudulently misrepresented to all purchasers of condominium units, for the purpose of inducing them to purchase units in the condominium complex, that a separate clubhouse facility would be built for their benefit. They further allege that the clubhouse was never built.

The time .has come, I believe, to acknowledge the possibility that condominium developers in Florida may have spawned a new form of fraud — class fraud by general, public misrepresentations — and to admit that historic rules governing access to the courts are inappropriate to remedy this unique and pervasive problem. I would at least shift the burden of proving up the class by allowing the action and then, if it should develop as a matter of proof by the developers that individual unit owners were not in fact misled by the asserted representations or did not in fact rely on them, the unit owners in that category should simply be dismissed from the class. See Davidson v. Lely Estates, Inc., 330 So.2d 528 (Fla.2d DCA 1976).

      . Section 711.12(2) provides, as follows:
      The association, whether or not incorporated, shall be an entity which shall act through its officers and shall have the capability of contracting, bringing suit, and being sued with respect to the exercise or nonexercise of its powers. For these purposes, the powers of the association shall include, but not be limited to, the maintenance, management, and operation of the condominium property. When the board of administration is not controlled by the developer, the association shall have authority and the power to maintain a class action and to settle a cause of action on behalf of unit owners of a condominium with reference to matters of common interest, including, but not limited to, the common elements, the roof and structural components of a building or other improvement, and mechanical, electrical, and plumbing elements serving an improvement or a building, as distinguished from mechanical elements serving only a unit. In any case in which the association has the authority and the power to maintain a class action, the association may be joined in an action as representatives of that same class with reference to litigation and disputes involving the matters for which the association could bring a class action. If not incorporated, the association shall be deemed to be an entity existing pursuant to this act and shall have power to execute contracts, deeds, mortgages, leases, and other instruments by its officers and to own, convey, and encumber real and personal property. Service of process upon the association, if not incorporated, may be had by serving any officer of the association or by serving the agent designated for the service of process. Service of process upon the association shall not constitute service of process upon any unit owner. Nothing herein shall limit any statutory or common law right or any individual unit owner or class of unit owners to bring any action which may otherwise be available in any court.

      . Section 501.204(1) provides, as follows:
      Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

      . No issue as to futurity has been raised here. See 37 Am.Jur.2d Fraud and Deceit § 57 et seq. (1968).

      . Ch. 74-104 § 19 reads, in part:
      This act shall take effect October 1, 1974; provided however that nothing contained in sections 711.63, other than 711.63(4), and 711.-64, Florida Statutes, shall affect:
      (a) Rights established by contract for sale of a unit by a developer to a prospective unit owner prior to July 1, 1974.
      (b) A condominium or a cooperative as to which rights are established by contract for sale of a unit in the condominium or cooperative -by the developer to a prospective unit owner prior to July 1, 1974.
      (c) The form of a lease that would be otherwise subject to the requirements of section 711.63, Florida Statutes, if the lease form is established by contract for sale of a unit in any condominium or any cooperative by the developer to a prospective unit owner prior to July 1, 1974, which lease form may be used in the making of all leases of the leased property and as to such other property that may be added to the leased property in accordance with the terms of the lease;
      (d)And provided further that if on October 1, 1974 there are less than six remaining unsold units in a condominium or cooperative in which there have been binding contracts for the sale of other units executed prior to October 1, 1974, then the requirements of 711.69, Florida Statutes, shall not be applicable to the sale or offering of such remaining unsold units; and provided further that nothing contained in section 711.65, Florida Statutes, shall affect a condominium or a cooperative as to which rights are established by contracts for sale of ten percent (10%) or more of the units in the condominium or cooperative by the developer to prospective unit owners prior to July 1, 1974, or as to condominium or cooperative buildings on which construction has been commenced prior to July 1, 1974.

      . As to count seven, moreover, I would not waste words trying to explain the continued vitality of this Court’s decision in the Point East case. I would simply concede that it has been overruled and adopt the dissenting views expressed in that case by Justice Ervin. Aside from the result in Point East, the decision provides a vivid example of the mischief which can result from an improvident exercise of “conflict" jurisdiction where no decisional disharmony exists. See Justice Ervin’s dissent.


source: Caselaw Access Project

author: KARL, Justice,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Christine MITCHELL, Respondent.
    No. 49721.
    Supreme Court of Florida.
    Feb. 23, 1977.
    Rehearing Denied May 31, 1977.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., for petitioner.
    Louis G. Carres, Asst. Public Defender, for respondent.
    OVERTON, C. J., and BOYD, ENGLAND and HATCHETT, JJ., concur.
    KARL, J., concurs specially with opinion.
   KARL, Justice,

concurring specially.

I agree with the majority decision discharging the writ of certiorari because the decision of the District Court of Appeal, 333 So.2d 89, First District, is not in conflict with any other decision of this court or any District Court of Appeal in this state. More specifically, their decision does not conflict with Green v. State, 113 Fla. 237, 151 So. 898 (1934).


author:
KARL, Justice.
      HATCHETT, Justice,

text:
    STATE of Florida, Petitioner, v. Daniel W. RODGERS, Respondent.
    No. 50735.
    Supreme Court of Florida.
    April 14, 1977.
    As Revised on Denial of Rehearing June 30, 1977.

      Robert L. Shevin, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., for petitioner.
    James J. English, West Palm Beach, for respondent.
   KARL, Justice.

We have for consideration, on petition for writ of certiorari granted, a question passed upon by the Fourth District Court of Appeals and certified to this Court as a question of great public interest. We have jurisdiction by virtue of Article V, Section 3(b)(3), Florida Constitution.

Respondent, Daniel W. Rodgers, was tried, convicted and sentenced to twenty-five years in prison on a charge of second degree murder. One of the six jurors who found him guilty was, at the time of the trial, only seventeen years of age. During voir dire, the youthful juror lied as to her age, education and work experience but was seated because the facts about which she lied were unknown to counsel and the court.

Although respondent’s counsel, by his own affidavit, admitted he acquired notice of the juror’s minority prior to the jury’s rendition of the verdict, he did not inform the trial judge until after the verdict was received and the jury had been discharged and excused. A motion for new trial was denied, and respondent instituted an appeal to the District Court of Appeal, Fourth District.

Finding that Rodgers was not afforded a fair and impartial jury, as guaranteed by Article I, Section 22, Florida Constitution, because one juror was not qualified to serve, the Fourth District Court of Appeal reversed the judgment, remanded the cause for a new trial and, after denying rehearing, certified the following question to us:

“Where a jury member has been seated on the jury after lying about her age, where she is only 17 years old, and this fact is introduced to the trial court after the jury verdict was rendered, must a new trial be granted even without a showing of actual prejudice to the defendant?”

In its opinion, Rodgers v. State, 338 So.2d 1121 (Fla. 4th DCA, 1976), the court reasoned in part:

“While the age of majority might be considered somewhat arbitrary, whether it is eighteen (18) or twenty-one (21), nevertheless, a person, until he reaches the age of majority, (age 18), is considered by operation of law, ‘incompetent’ to perform certain acts. Thus a minor cannot vote in Federal and State elections. He cannot act as an executor or administrator. His contracts with adults are voidable by him until he reaches the age of majority, and he is not eligible to serve on a jury.”

We find nothing in the Florida Constitution that requires every juror to be at least eighteen years of age. The only such requirement is statutory. Section 40.01(1), Florida Statutes, provides that grand and petit jurors shall be persons at least eighteen years of age who are citizens of this state, who have resided in this state for one year and in their respective counties for six months, and who are fully qualified electors. Other sections of Chapter 40, Florida Statutes, describe qualifications for jurors and identify those who are disqualified. Among those specifically stated to be disqualified are deputy sheriffs. Section 40.07(2), Florida Statutes.

In Ex parte Sullivan, 155 Fla. 111, 19 So.2d 611 (1944), the Court, in a habeas corpus proceeding in which the petitioner was seeking to avoid a judgment of murder in the first degree, determined that, although one of the jurors was found to be a deputy sheriff, the verdict and judgment would not be void. Therein the Court said:

“The fact of being a deputy sheriff is a ground of challenge for cause, Section 913.03, Florida Statutes 1941, F.S.A., but if the right to challenge for cause is not exercised before the juror is sworn to try the cause it is lost, Section 913.04, Florida Statutes 1941, F.S.A. If one of the jurors was in fact a deputy sheriff, it was a matter of record available to the petitioner at the trial and should have been seasonably raised. He should have been challenged for cause and exception taken on refusal of the challenge. The challenged error could have then been reviewed on appeal.”

Subsequently, the Court considered a similar case, also involving a verdict and judgment of conviction for first degree murder, in which three of the jurors were not registered voters at the time of the trial. Concluding that the failure of the jurors to have the statutory qualifications was not a basis for reversal, the Court, in Leach v. State, 132 So.2d 329 (Fla.1961), explicated:

“On voir dire the jurors apparently stated that they were registered voters. While this would have been a valid objection to the jurors when examined on voir dire, it comes too late after acceptance of the jury and the verdict. The jurors could have been challenged for cause during the examination, but having failed to assert the cause, the objection was waived when the appellants accepted the jury. The rule might be otherwise if the disqualification of the jurors, unknown to the defendant at the trial, was subsequently revealed to be one affecting their ability to render a fair and impartial verdict. For example, if after the trial it should develop that a juror was closely related by blood to deceased and had announced his conviction regarding the guilt of the accused and had misrepresented his position when examined, such a disqualification would enter into the very fundamentals of the trial itself. This is not so with reference to the failure of the juror to be a registered voter. The appellants make no contention that they were not fairly heard with an unprejudiced mind by the jurors in question. Their position offers no ground for reversal. Ex parte Sullivan, 155 Fla. 111, 19 So.2d 611; Burns v. State, 89 Fla. 353, 104 So. 447; Section 913.04, Florida Statutes, F.S.A.; 31 Am.Jur. ‘Jury’ Sections 154— 156.” (Emphasis supplied.)

While recognizing that the Legislature has authority under Article I, Section 22, Florida Constitution, to require that jurors have qualifications of age, residence and voter registration, and may statutorily disqualify others by reason of criminal activity, occupation and infirmity, we are of the opinion that the seating of an unqualified or disqualified juror will not result in a reversal of a guilty verdict in the absence of a showing that such qualification deficiency affected the verdict or prevented a fair trial. There is nothing sub judice to demonstrate that the juror’s condition of non-age affected her ability to render a fair and impartial verdict or that she failed to do so.

It is contended by respondent that the age requirement is different than other statutory juror qualifications. This argument proceeds on the premise that a person below the age specified by law lacks competence to serve as a juror. The argument is reinforced by the citation of many statutes imposing restrictions on activities of those who have not attained the threshold age. The premise on which respondent’s argument is based is faulty, and we reject it. A person who is less than eighteen years of age is not, by reason of age alone, lacking in competence. The legislative mandate that jurors be persons who are no less than eighteen years of age imposes the duty of preventing those below that age from being included on a panel of prospective jurors. If a person below that age is somehow included, he or she should not be accepted for duty and may be successfully challenged for cause. However, non-age does not equate with incompetence, and a verdict rendered by a jury with an under-age member may be valid. As this court said in Leach, supra, an objection to a juror with less than complete qualifications comes too late after acceptance of the jury and verdict, unless it can be shown that the deficiency affected the juror’s ability to render a verdict.

Additionally, sub judice the false testimony of the juror on voir dire, although reprehensible, does not appear to have prejudiced the substantial rights of the defendant to the extent that a new trial must be granted under Rule 3.600(b)(4), Florida Criminal Rules of Procedure. There is no evidence in the record to support a finding that her misconduct deprived the defendant of a fair trial.

“Not every irregularity which would subject a juror to censure should overturn the verdict. In order to authorize the setting aside of a verdict on account of misconduct of the jury, it must appear that such misconduct may have had an influence upon the final result, and caused injury to the complaining party.”

5 Wharton’s Criminal Law and Procedure, section 2122, page 312. Cf. Russom v. State, 105 So.2d 380 (Fla.3d DCA, 1958) and Lebowitz v. State, 313 So.2d 473 (Fla.3d DCA, 1975).

We hold that, in the absence of evidence that the defendant was not accorded a fair and impartial jury or that his substantial rights were prejudiced by the participation and misconduct of the unqualified juror, he is not entitled to a new trial.

Accordingly, we answer the certified question in the negative, quash the decision of the Fourth District Court of Appeal and remand with directions that the judgment of conviction by the trial court be reinstated.

It is so ordered.

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

HATCHETT, J., dissents with an opinion.

HATCHETT, Justice,

dissenting.

I could join the majority here if it affirmed the conviction on the ground that the defense had notice before the return of the verdict that one of the jurors probably did not meet the statutory qualifications. Such a disposition would be proper and just because the defense was under a duty to communicate this fact to the trial judge before rendition of the verdict. The defense could not “gamble” on the outcome, lose, and then complain. But the majority’s decision is much broader in scope. They make a rule that will govern even where the state or the defense is free from fault.

I am concerned with the practical application of such a rule. How can the convicted defendant or the state “demonstrate that the juror’s condition of nonage affected her ability to render a fair and impartial verdict or that she failed to do so”? Should the moving party be allowed to call all of the jurors before the court for examination? Do we inquire into their discussions or examine their thought processes in arriving at a verdict? Or, should the juror without the statutory qualifications be questioned as to the part she played in reaching the verdict? Do we try to determine what influence she had on the other jurors? Finally, must the showing of prejudice be by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt?

The majority says, “A person who is less than eighteen years of age is not, by reason of age alone, lacking in competence.” I agree. But the legislature has determined after full study and debate that it is more likely than not that a person under eighteen years of age is incompetent for purposes of jury service. Lines have always been drawn on the basis of age on the theory that those below a certain age are lacking in either experience, maturity, or wisdom to appreciate the complexities and consequences of specified activities. It is the legislature’s job to make the law, and in the absence of a finding that the statute is unconstitutional, it should not be effectively stricken. The court today completes the repeal of Section 40.01(1), Florida Statutes.

I would answer the certified question in the affirmative and affirm the Fourth District Court of Appeal.

ON PETITION FOR REHEARING

The original majority opinion herein has been revised and the petition for rehearing is visited to the revised opinion and is hereby

DENIED.

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

HATCHETT, J., dissents.

      . Rodgers v. State, 338 So.2d 1121 (Fla. 4th DCA, 1976).

      . Chapter 73-21, Laws of Florida, removed the disability of non-age for persons eighteen years of age or older. (Effective July 1, 1973). In Reed v. State, 292 So.2d 7 (Fla.1974), February 13, 1974, this Court stated:
      “Under this law [Ch. 73-21], the 18-year old citizen is now eligible for jury service.”
      Section 40.01(1), Florida Statutes (1975), effective June 9, 1975, provides:
      “Grand and petit jurors shall be taken from the male and female persons at least 18 years of age, .


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Glynis Margaret LAW et al., Appellees.
    No. 49820.
    Supreme Court of Florida.
    May 26, 1977.
    Robert L. Shevin, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., for appellant.
    David A. Demers of the Law Offices of Robert W. Pope, St. Petersburg, for appel-lees.
   PER CURIAM.

Reversed. See State v. Bales et al., 343 So.2d 9 (Fla.1977).

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


author: BOYD, Justice.

text:
    Anna Beatrice ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 49554.
    Supreme Court of Florida.
    June 16, 1977.
    Louis 0. Frost, Jr., Public Defender, and Edward W. Dawkins, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti L. Englander, Asst. Atty. Gen., for appellee.
   BOYD, Justice.

Appellant was convicted in the County Court of Duval County on a nolo contendere plea of obtaining welfare assistance by fraud, contrary to Section 409.325(1), Florida Statutes. She reserved the right to appeal to challenge the constitutionality of the statute on the ground that it is vague.

The statute follows:

“409.325 Fraud. — (1) Whoever knowingly obtains, attempts to obtain, or aids or abets any person in obtaining or attempting to obtain, by means of a false statement or representation, by false impersonations, or by other fraudulent device, assistance or service to which he is not entitled or assistance or service greater than that to which he is justly entitled; or whoever willfully makes any unauthorized disposition of any food commodity donated under any program of the federal or state government; or whoever, not being an authorized recipient thereof, willfully converts to his own use or benefit any such food commodity, shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.”

Appellant complains that the statute lacks requirements and conditions sufficiently specific to protect someone, who, although technically not qualified to receive public welfare, does so in good faith.

In Moore v. State, 505 S.W.2d 842 (Tex.Cr.App.1974), the Texas “public welfare fraud” statute, with language nearly identical to that of our statute, was upheld against a “vagueness” attack. We agree with the Texas court that the language is sufficient to notify the public of the conduct it prohibits.

The statutory requirement which cures appellant’s objection is that before guilt can be established one must have fraudulently and by misrepresentation secured public assistance for himself or assisted others in receiving it. This requirement alerts the public that the statute is aimed at those who, by malicious or deceitful motives, cheat the government by fraudulent conduct.

In Erwin v. State, 262 So.2d 677 (Fla.1972), we said:

“So long as the statute is sufficient to advise the average citizen of common intelligence who may be involved, of the offense proscribed, it withstands the assault of vagueness.” At 678, 679.

The statute meets that standard. Accordingly, the judgment of the trial court is affirmed.

It is so ordered.

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

      . During the proceedings appellant moved to dismiss because the statute was unconstitutionally vague. The motion was denied. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.


author: HAVERFIELD, Judge.

text:
    GLENS FALLS INSURANCE CO., Appellant, v. D. BLACK & SONS, INC., a Florida Corporation, Appellee.
    No. 75-1842.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Rehearing Denied June 29, 1977.
    Smathers & Thompson, Miami, for appellant.
    Gerald M. Walsh and Associates, Fort Lauderdale, Savitt, Kotzen, Riskin & France, North Miami, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Defendant insurer appeals an adverse final judgment determining that plaintiff’s textile goods destroyed in a warehouse fire were covered under defendant’s marine open cargo policy.

Plaintiff-appellee, D. Black and Sons, Inc., an exporter of textile goods, in 1965 obtained from Frank C. Petrine, agent of Searle & Morris Coral Gables Insurance, Inc., an open marine cargo insurance policy issued by the defendant-appellant Glens Falls Insurance Company. The policy provided, inter alia, warehouse to warehouse coverage, i. e. from the time the textile goods left the mill until the goods reached their final destination. Under the terms of the policy, if plaintiff desired insurance on a particular cargo shipment, it was authorized to issue certificates of insurance and a separate premium for each insured shipment was provided depending upon the value and destination. Upon receipt of an order from an overseas buyer, plaintiff customarily purchased the textiles from various mills and directed them sent to a packing plant located at a port such as Charleston, S. C. where the goods are repacked and held for export. Upon the transporting ship’s arrival, a warehouse forwarder would cut export declarations, issue bills of lading for the steamship company which would transport the cargo, and have the goods taken to the terminal and loaded on board. After receiving the bill of lading and a letter of credit from the customer, plaintiff would then decide whether or not to issue a certificate of insurance depending upon whether the customer had adequate coverage.

On November 4, 1972 plaintiff had goods stored in a warehouse in Charleston awaiting shipment and on that date a fire occurred at the warehouse totally destroying the goods. Certificates of insurance had not been issued as the bill of lading had not yet been prepared and forwarded to plaintiff. Following the fire, plaintiff called Frank Petrine of Searle & Morris and inquired as to whether certificates of insurance should be issued on the destroyed goods. Petrine informed plaintiff that it was not necessary and certificates were not issued. Thereafter plaintiff made a claim through Petrine which was denied by Glens Falls. Plaintiff thereupon filed the instant lawsuit against Glens Falls for wrongful denial of coverage and against Searle & Morris on the alternative theory that its agent Petrine failed to procure valid insurance covering the loss. The cause proceeded to a non-jury trial, at the conclusion of which the judge found there was coverage and entered judgment for plaintiff against Glens Falls. The judge incorporated into his judgment an alternative finding that should the judgment against Glens Falls be reversed, then he would enter judgment for plaintiff against Searle & Morris on the theory of negligence. Glens Falls basically contends the judge erred in his determination that plaintiff could insure the goods after they were destroyed by the fire. We find this point well taken.

Ordinarily policies of marine insurance are conditioned on the existence of the subject of insurance at the time the policies are written and if a loss is known to both parties, a certificate of marine insurance thereafter issued could not affect the rights of the parties because it would be without consideration and void. See St. Paul Fire & Marine Ins. Co. v. Pure Oil Co., 63 F.2d 771 (2nd Cir. 1933); 44 C.J.S. Insurance § 235 (1945); 4 Appleman, Insurance Law and Practice § 2401 (rev. Ed. 1969).

It is undisputed that certificates of insurance had not been issued, either at the time the goods were destroyed or anytime thereafter. Further, the record reflects that plaintiff did not pay a premium for the master policy and only paid a premium after it issued a certificate of insurance. Thus, we find that the destroyed goods were not covered. The judgment against Glens Falls is reversed and for a discussion of the effect of the alternative finding of liability for negligence on the part of Searle & Morris, see this court’s opinion in Petrine v. D. Black & Sons, Inc., 338 So.2d 912 (Fla. 3d DCA 1976).

Reversed.


author: ALDERMAN, Judge. DAUKSCH, Judge,

text:
    Charles E. TODD, Jr., Petitioner, v. Joseph M. CARROLL, and the Palm Beach County School Board, Respondents.
    No. 76-2379.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1977.

      Thomas Montgomery, Belle Glade, for petitioner.
    Michael E. Jackson, of Jackson & Jackson, Palm Beach, for respondents.
   ALDERMAN, Judge.

Charles E. Todd, Jr., by petition for writ of certiorari, seeks to have reviewed a decision of the Palm Beach County School Board terminating his employment as administrative dean of Glades Central High School. We have jurisdiction pursuant to Section 120.68, Florida Statutes (1975).

The first issue is whether the doctrines of res judicata or estoppel by judgment apply in this case. We hold that they do not. Initially a petition for revocation of Mr. Todd’s teaching certificate was filed by the Professional Practices Council of the Department of Education, pursuant to Section 231.28, Florida Statutes (1975). It was alleged that Mr. Todd committed certain acts which would justify revocation or suspension of his teaching certificate. After hearings before a hearing committee of the Professional Practices Council, the State Board of Education concluded that the findings of the hearing committee did not support revocation or suspension of Mr. Todd’s teaching certificate. However, the State Board of Education found that there was cause to believe that Mr. Todd used poor professional judgment in some of his relationships with students and ordered that he be issued a letter of warning. Subsequently the Superintendent of Schools for Palm Beach County filed a petition with the Palm Beach County School Board recommending that Mr. Todd be dismissed from his job. The factual allegations upon which the recommendation was based were substantially the same as those alleged in the proceeding before the State Board of Education.

We hold that the doctrines of res judicata or estoppel by judgment are not applicable under the facts of the case where two separate and distinct governmental units independently considered similar factual allegation, but for different purposes. The State Board of Education was acting on a petition of the Professional Practices Council for revocation or suspension of Mr. Todd’s teaching certificate. This involved his right to teach anywhere in the State of Florida, and not just in Palm Beach County. The Palm Beach County Board of Education was not a formal party to the proceeding before the State Board of Education and it is not bound by the findings of fact of the hearing committee of the Professional Practices Council. The subsequent proceeding before the Palm Beach County School Board involved different parties and related only to Mr. Todd’s right to continued employment in the Palm Beach County School system.

Mr. Todd next alleges that the proceeding below should be dismissed because the School Board did not comply with the notification requirements of Section 231.-36(4), Florida Statutes (1975). In rejecting this argument we hold that the notification requirements of Section 231.36(4) have been superseded by the provisions of the new Administrative Procedures Act, Chapter 120, Florida Statutes (1975). Section 120.-72(1), Florida Statutes, provides:

“The intent of the legislature in enacting this complete revision of chapter 120, Florida Statutes, is to make uniform the rulemaking and adjudicative procedures used by the administrative agencies of this state. To that end, it is the express intent of the legislature that the provisions of this act shall replace all others provisions in the Florida Statutes, 1973, relating to rulemaking, agency orders, administrative adjudication, or judicial review, except marketing orders adopted pursuant to chapters 573 and 601.” (Emphasis supplied.)

The obvious intent of the legislature was to enact the new Administrative Procedures Act in place of the prior general law relating to administrative adjudication.

The last point involves Mr. Todd’s contention that his dismissal is not supported by sufficient findings of fact by a majority of the members of the Palm Beach County School Board. Written findings of fact were not prepared by the School Board. Instead, each member made an oral statement on the record. Each member stated that he found Mr. Todd guilty of differing degrees of unprofessional conduct. However it is not clear whether a majority of the School Board actually found him guilty of the specific acts of immorality or misconduct in office with which he was charged. We believe the ends of justice would best be served by remanding this case to the School Board for the purpose of its making specific written findings as to whether Mr. Todd is guilty of any of the specific acts of immorality or misconduct in office with which he is charged.

For that reason we relinquish jurisdiction for sixty days with instructions that the Palm Beach County School Board file with this court its written findings as to Mr. Todd’s guilt or innocence of the specific acts with which he is charged.

ANSTEAD, J., concurs.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent in part. While I don’t disagree with the decision to relinquish jurisdiction in regard to the sufficiency of the evidence matter I do disagree with the holding of the court in regard to res judicata and estoppel by judgment. Upon complaint of the Palm Beach County School Board thru one of its supervisory agents the Professional Practices Council of the Department of Education made inquiry into certain charges against Mr. Todd in order to make recommendation to the State Board of Education concerning the revocation or suspension of Mr. Todd’s teaching certificate. The State Board of Education, which is the cabinet of our State, found the evidence insufficient to revoke or suspend Mr. Todd’s teaching certificate. Obviously the Palm Beach County School Board was not satisfied with the findings of the State Board of Education so it decided it would conduct its own investigation of the matter and proceeded to fire Mr. Todd from the Palm Beach County school system. The findings of the local school board are not available to us as the majority opinion indicates but on the scant evidence provided us it appears the tally of the vote of the individuals on the local board was quite close. The action of the local school board in reporting Mr. Todd to the state school board was an effective relinquishment of its authority and the local school board should be barred from attempting to re-assume the authority once relinquished not only on the basis of fairness but on the basis of res judicata and estoppel by judgment. The facts alleged against Mr. Todd were the same in both proceedings and were supportive of the charges which were identical in both proceedings. So the only question remaining is whether or not the parties were the same. I agree the Palm Beach County School Board is not the same as the State Board of Education but I disagree that they are not the same parties in this case. The Professional Practices Council became involved in this case upon the complaint of the Palm Beach County School Board so it was effectively a party to the matter; it was more than the complaining witness. The local school board went about gathering the case for the State Board of Education and thus participated in the prosecution which it precipitated and in fact filed in the record exceptions to the findings of the hearing committee at the state level and participated in the hearings before the cabinet sitting as the state school board. The local school board chose its forum, the state school board, presented its witnesses at all the hearings on the state level and received the justice the state school board found it deserved. It wasn’t happy so it came back home and fired Mr. Todd anyway. Not only was the matter res judicata and not only was the school board estopped by the previous judgment of the state school board, Mr. Todd’s right of due process by law was probably violated by the school board in twice putting him to answer to the same charges. But the due process question was not raised and we need make no decision in that regard. The assertion of the school board that the firing of Mr. Todd from the Palm Beach County school system is a far less onerous penalty than the revocation or suspension of his license seems rather hollow when one considers the chances of this 18 year veteran teacher finding employment in some other Florida county. As to estoppel by judgment application to administrative hearings see Carol City Utilities, Inc. v. Miami Gardens Shopping Plaza, 165 So.2d 199 (Fla.3d DCA 1964). See also Smith v. United Services Automobile Association, 259 So.2d 501 (Fla.1st DCA 1972).

      . Alford v. Duval County School Board, 324 So.2d 174 (Fla. 1st DCA 1975), is distinguishable because it applies only to the Duval County Teachers’ Tenure Act.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Charles E. TODD, Jr., Petitioner, v. Joseph M. CARROLL and the Palm Beach County School Board, Respondents.
    No. 76-2379.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Rehearing Denied July 25, 1977.
    Thomas Montgomery, Belle Glade, for petitioner.

      Michael E. Jackson of Jackson & Jackson, Palm Beach, for respondents.
   PER CURIAM.

This cause was initially considered by this court when Charles E. Todd, Jr., petitioned for writ of certiorari to have reviewed a decision of the Palm Beach County School Board terminating his employment with the Palm Beach County School system. Todd v. Carroll, 347 So.2d 618 (Fla. 4th DCA, opinion filed February 25, 1977). At that time we determined that it was not clear whether a majority of the school board members had actually found Todd guilty of the acts with which he was charged. We remanded the cause to the School Board so that the members individually could make written findings as to whether Todd was guilty of any of the specific acts of immorality or misconduct with which he was charged.

We have now received affidavits from each member of the Palm Beach County School Board as that Board was constituted when Todd was discharged from his position. While a majority of the members do not find Todd guilty of every act with which he was charged, five of the six members do find him guilty of making improper advances toward female students. This is one of the specific acts of misconduct in office with which he is charged, and is sufficient to support the Board’s termination of Todd’s employment.

The petition for writ of certiorari is denied.

ALDERMAN and ANSTEAD, JJ., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I must respectfully dissent as I did before in this matter. Todd v. Carroll, 347 So.2d 618 (Fla. 4th DCA, opinion filed February 25, 1977).

For the reasons stated in my previous dissent and for the further reason that the evidence is insufficient to support the action of the Palm Beach County School Board I would issue the writ of certiorari and reverse the Order dismissing Mr. Todd from employment by Palm Beach County School Board as a dean and teacher.


author: PEARSON, Judge.

text:
    CITY OF MIAMI, a Florida Municipal Corporation, Appellant, v. ST. JOE PAPER COMPANY, etc., et al., Appellees.
    Nos. 76-423 and 76-686.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.

      Guy B. Bailey, Jr., Miami, for appellant.
    Shutts & Bowen and William P. Simmons, Jr. and Eric B. Meyers, Sibley, Giblin, Levenson & Glaser, Steel, Hector & Davis, Miami, Russo, Van Doren & Allen, Coral Gables, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

The City of Miami appeals a final judgment dismissing its amended complaint as to defendants, St. Joe Paper Company, Hugh E. Matheson, Jr., and Southeast Properties, Inc. The second appeal is from a summary final judgment for defendant Sally S. Dommerich. The City states that the issues are essentially the same on both appeals, which have been consolidated for all appellate purposes. The City’s complaint sought “to quiet and confirm title, for ejectment” upon “all or substantial portions” of several lots and tracts, being filled land on the north side of the Miami River at or near the river’s entrance into Biscayne Bay.

The controlling question appears to be whether the City’s claim is barred by the Marketable Record Title Act, Chapter 712, Florida Statutes (1975). This question must be determined from the allegations of the complaint if it is to be determined, as it was, at the pleading stage. See Stern v. First National Bank of South Miami, 275 So.2d 58 (Fla.3d DCA 1973). We hold that the amended complaint was properly dismissed on this ground.

The allegations of the amended complaint, rearranged chronologically for the purpose of clarity in determining the applicability of the Marketable Record Title Act, are:

1. In 1845, the State of Florida acquired from the United States the lands under navigable waters.

2. By Warranty Deed recorded December 15, 1898, Henry M. Flagler conveyed to the Florida East Coast Hotel Corporation portions of the mainland north of the Miami River and adjacent to Biscayne Bay:

“containing fourteen acres, more or less, together with all and singular the riparian rights and submerged lands appertaining thereto.”

3. By a special act of the Florida Legislature on June 2, 1919, the State of Florida granted to the City of Miami “for municipal purposes only, all its rights, title and interest . . to all submerged lands, including waterfront and riparian rights” to an area which included the mouth of the Miami River. The statutory grant included the following section:

***** *
“Sec. 2. That this grant shall not affect any other grant heretofore made to any individual or corporation and nothing herein shall be construed as depriving any riparian owner or proprietor of any rights under the laws of this State.”

4. Beginning in 1920, the Florida East Coast Hotel Corporation bulkheaded and filled a portion of the property in question but left a yacht basin.

5. On January 10, 1944, the St. Joe Paper Company (one of the defendants) recorded a warranty deed from the Florida East Coast Hotel Corporation which conveyed to it all of the lands with which we are here concerned including the yacht basins which was then in existence. Recorded with the deed was a map which is reproduced for reference. Some time after 1944, St. Joe filled and bulkheaded the yacht basin.

6. All the defendants other than St. Joe claim under recorded deeds from St. Joe Paper Company subsequent to the 1944 deed to St. Joe Paper Company.

7. On February 3, 1949, St. Joe recorded a plat (attached to the complaint) of the lands involved. This plat was approved by the City of Miami prior to recordation.

The City raises eight points on appeal. The first point urges that the City should have again been given a right to amend its complaint. This point does not present error because the City had once amended its complaint and no new fact in relation to the points on appeal was alleged. In addition, the record does not show a tender or a request to amend.

The second point urges that the area covered by the yacht basin is not protected by the Marketable Record Title Act, even if the act should be held applicable to the remaining area, because the yacht basin was not filled until 1949. This point does not present error because there is nothing within the act which refers to the physical characteristics of the land. If the legislature had intended to exempt unfilled land, it would have been necessary for the legislature to have provided so. See Sawyer v. Modrall, 286 So.2d 610 (Fla.4th DCA 1973); cf. Odom v. Deltona Corporation, 341 So.2d 977 (Fla.1976).

The third point urges that the trial judge improperly took notice of facts outside the record and applied these facts to find estoppel or waiver of the City’s rights. We do not consider this point because our review of the judgment is based entirely upon the record as it has been presented.

The fourth point urges that the “Butler Bill” (the Riparian Rights Act of 1921, Section 271.01, Florida Statutes, which was repealed in 1957) cannot provide an alternative ground for the dismissal of the amended complaint. We do not consider this point in view of our holding herein.

The fifth point urges that the Marketable Record Title Act is inapplicable because the 1948 conveyance was a wild or void deed. This point is not sustainable in view of the holding of the Supreme Court of Florida in Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla.1970). See also Wilson v. Kelley, 226 So.2d 123 (Fla.2d DCA 1969); and Whaley v. Wotring, 225 So.2d 177 (Fla. 1st DCA 1969).

The sixth point urges that the City is exempt from the provisions of the Marketable Record Title Act either as a trustee of the public or as an agency of the State. This position is not sustainable in view of the holding of the Supreme Court of Florida in Odom v. Deltona Corporation, 341 So.2d 977 (Fla.1976), where the court held:

“It seems logical to this Court that, when the Legislature enacts a Marketable Title Act, as found at Chapter 712, Florida Statutes, clearing any title having been in existence thirty years or more, the state should conform to the same standard as it requires of its citizens; the claims of the Trustees to beds underlying navigable waters previously conveyed are extinguished by the Act. Stability of titles expressly requires that, when lawfully executed land conveyances are made by public officials to private citizens without reservation of public rights in and to the waters located thereon, a change of personnel among elected state officials should not authorize the government to take from the grantee the rights which have been conveyed previously without appropriate justification and compensation. If the state has conveyed property rights which it now needs, these can be reacquired through eminent domain; otherwise, legal estoppel is applicable and bars the Trustees’ claim of ownership, subject to rights specifically reserved in such conveyances.”

The seventh point urges that the City is exempt from the provisions of the Marketable Record Title Act by the reason of exceptions embodied in the act. The argument is two pronged: (1) the Act intended to preserve governmental use in land; (2) the City’s legislative grant was “for municipal purposes only” and, therefore, the grant was a reservation by the State of the public’s rights in the filled property. Neither of these arguments presents error in view of the holdings of the Supreme Court in Odom v. Deltona Corporation, 341 So.2d 977 (Fla.1976), which held the Act applicable to the State’s interest in lands.

The eighth point is as follows:

“Where, as construed and applied, Florida Statute Chapter 712 destroys a constitutionally protected interest, impairs obligations of contracts, permits a void deed to form a root of title, fails to give adequate notice and otherwise deprives a land owner of due process of law, the trial judge erred in holding the act constitutional.”

The trial court did not rule upon the constitutionality of the act, but did apply the act as though it were constitutional. We consider the issue to be fundamental and shall, therefore, treat the question as though raised initially on this appeal. See Palm Beach County v. Green, 179 So.2d 356 (Fla.1965). In order to expedite the ruling on this question, we will certify this decision to the Supreme Court as one passing upon a question of great public interest.

Although the Supreme Court of Florida has not specifically held the Marketable Record Title Act constitutional, it has implicitly done so in Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla.1970), and Odom v. Deltona Corporation, 341 So.2d 977 (Fla.1976).

The Marketable Record Title Act extinguishes claims of thirty years or more which conflict with a record chain of title which is at least that old. The act was passed in 1963 and provided the City with ten and one-half years within which it could assert its claim. In view of the length of time provided and the easy way in which the City could have protected its claim, see Section 712.05, Florida Statutes (1975), we find no reason to hold that the act was unconstitutionally applied to the city. Cf. Campbell v. Horne, 147 Fla. 523, 3 So.2d 125 (1941); Mahood v. Bessemer Properties, Inc., 154 Fla. 710, 18 So.2d 775 (1944); Buck v. Triplett, 159 Fla. 771, 32 So.2d 753 (1947); H. K. L. Realty Corporation v. Kirtley, 74 So.2d 876 (Fla.1954), and In re Brown’s Estate, 117 So.2d 478 (Fla.1960).

Accordingly, the judgments are affirmed.

      . “20. All or substantial portions of Lots 1 through 10, inclusive, of Block 3; Lots 7 and 8 of Block 5; Lots A and B of Block 1; and all of Tracts C and D of the said plat of DuPont Plaza, were irrevocably conveyed by the State of Florida to Miami in its grant of June 2, 1919, and Miami owns of right title and interest thereto in fee simple absolute, subject only to the requirement that they be used for municipal purposes only.”

      . A map attached to this deed is included as an exhibit to the amended complaint. It shows that Flagler intended to convey all the land east of “Mrs. J. D. Tuttle’s Home Reservation.”

       See Appendix.


author: NATHAN, Judge.

text:
    Sam KAUFMAN et al., Appellants, v. Ralph H. SHERE and Inez Shere, his wife, Appellees.
    No. 76-1429.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied July 27, 1977.
    Becker & Poliakoff and George I. Platt, Miami Beach, for appellants.
    Patton, Kanner, Nadeau, Segal, Zeller & LaPorte, Miami, for appellees.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   NATHAN, Judge.

This is an interlocutory appeal and cross appeal from a partial summary judgment in a class action challenging the validity of a Rent Adjustment or “escalation” clause in a condominium recreation lease. The plaintiff Kaufmans are unit owners in Fifth Moorings Condominium and plaintiff Fifth Moorings Condominium, Inc., is the condominium association. Defendants Ralph Shere and the late Inez Shere, his wife, were officers and directors of the corporation which developed the Fifth Moorings Condominium, which is part of a complex that includes seven other condominiums. Defendants were also the lessors of the recreational facilities, which serve the entire Moorings complex.

The lease was assumed by all unit owners as a mandatory condition for purchasing their condominiums. In May of 1974, defendants demanded an increase in rent pursuant to the escalation clause, which calls for periodic rent adjustments in accordance with the Consumer Price Index. Plaintiffs initiated this action on July 1,1975, seeking, inter alia, declaratory relief with respect to their rights and obligations urider Florida Statutes § 711.236, which became law on June 5, 1975. Essentially, that section of the Condominium Act declares escalation clauses in condominium recreation leases void for public policy and prohibits their enforcement.

The trial judge did not pass on the constitutionality of retroactive application of Section 711.236, since he found that the legislature had declared escalation clauses to be unenforceable prospectively only. He also ruled that the Declaration of Condominium by which Fifth Moorings Condominium was created and governed had provided for the adoption of future legislative acts as amendments to the Declaration and that Section 711.236 should therefore be given prospective operation and effect with respect to the Fifth Moorings Condominium.

In accordance with these findings, the trial court granted a partial summary judgment allowing the rent increase of May 21, 1974, but prohibiting any further rent escalations after June 4, 1975. Plaintiffs appealed the upholding of the May, 1974 increase, arguing that Section 711.236 should be applied retroactively. Defendants have cross appealed, asserting that Section 711.-236 is unconstitutional and that the Declaration of Condominium should not be interpreted as incorporating the provisions of Section 711.236.

With regard to plaintiffs’ argument that Section 711.236 should be applied retroactively, we find that the Florida Supreme Court’s recent ruling in Fleeman v. Case, 342 So.2d 815 (Fla.1977), is completely dis-positive of this question. The Court there ruled that Section 711.236 is inapplicable to contracts which antedate its enactment. Thus, the trial judge properly refused to invalidate the rent increase of May 21,1974, which occurred before the effective date of the statute.

The only remaining question is whether the Declaration of Condominium of Fifth Moorings was properly interpreted as including the prospective invalidation of escalation clauses mandated by Section 711.-236.

The critical contested provision of the Declaration reads as follows:

“1. Except where variances permitted by law appear in this Declaration or in the annexed By-Laws or in the annexed Charter of FIFTH MOORINGS CONDOMINIUM, INC., or in lawful amendments thereto, the provisions of the Condominium Act as presently existing, or as it may be amended from time to time, including the definitions therein contained, are adopted and included herein by express reference.”

Plaintiffs argue that this language clearly provides for the incorporation of Section 711.236 as part of the Declaration of Condominium, while defendants contend that the quoted provision was applicable only where the Declaration was at variance with the Condominium Act at the time that the Declaration was filed. We do not find this latter argument persuasive.

The contested clause unequivocally states that provisions of the Condominium Act are adopted “as it may be amended from time to time." (Emphasis added.) We perceive no ambiguity in this language, and thus find that it was the express intention of all parties concerned that the provisions of the Condominium Act were to become a part of the controlling document of Fifth Moorings whenever they were enacted. Even if we were to find an ambiguity, we would be forced to construe it against the defendant developer/lessors as authors of the Declaration of Condominium. See Bouden v. Walker, 266 So.2d 353 (2d DCA 1972); see generally 49 Am.Jur.2d, Landlord and Tenant, § 143.

We hold that the trial judge properly ruled as a matter of law that Florida Statutes § 711.236 was incorporated into the Fifth Moorings Declaration of Condominium by virtue of the express wording of the Declaration itself. In light of this holding, the prohibition against further rent increases subsequent to the effective date of Section 711.236 was also proper.

Affirmed.

      . Section 711.236 comes within Chapter 711, Florida Statutes (1975); Chapter 711 was known as the Condominium Act. Section 711.-236 was created by Ch. 75-61, Laws of Florida and codified as § 711.231, Fla.Stat.

      . Of course, such provisions would only be incorporated to the extent that they were valid, and thus Section 711.236 could only be adopted prospectively.


author: ALDERMAN, Judge.

text:
    Nicholas J. CAPUANO, Appellant, v. STATE of Florida, Appellee.
    No. 76-1480.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1977.
    Nicholas J. Capuano, in pro. per.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

Appellant seeks reversal of an order denying a motion to expunge his arrest record pursuant to Section 901.33, Florida Statutes (1975). The trial court held that Section 901.33 is not retroactive and therefore not applicable to appellant’s arrest which occurred prior to the effective date of the statute. We reverse.

The State contends that an order denying a motion to expunge is non-appeal-able, pointing out that it is not included in Section 924.06, Florida Statutes (1975), as ope of the orders from which a criminal defendant may appeal. We reject this con-tentiofi\^Although appellant was formerly a defendant in a criminal case, he was not a defendant at the time he filed his motion. Section 901.33 provides that he may file his motion to expunge with the court wherein the charge was brought. The relief sought is civil in nature. The fact that the'statute directs that the motion to expunge be filed" with the same court wherein the moving party was formerly charged does not change the nature of the relief sought. We hold that a final order under Section 901.33 is reviewable by appeal.

Turning now to the merits of this appeal, we observe that subsequent to the trial court’s order, the Supreme Court decided the case of Johnson v. State, 336 So.2d 93 (Fla.1976). In Johnson, the court held that the Legislature could not require the destruction of judicial records, but that to achieve the legislative intent, a court in a proper case could order that an arrest record be sealed.

Although the court in Johnson did not specifically treat the question of retro-activity, it is obvious from the facts of that case that the statute was given retroactive effect. We therefore conclude that the trial court erred in denying appellant’s motion upon the grounds that Section 901.33 is not retroactive.

REVERSED and REMANDED for further proceedings consistent with the opinion of the Supreme Court in Johnson v. State, supra.

MAGER, C. J., and DOWNEY, J., concur.


text:
    Alvy M. HIGGINS, Appellant, v. William Ray HIGGINS, Appellee.
    No. 76-2252.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1977.
    Robert L. Saylor of Law Offices of Robert L. Saylor, North Palm Beach, for appellant.
    William Ray Higgins, in pro per.
   PER CURIAM.

Affirmed. Pierson v. Sharp, 283 So.2d 880 (Fla. 4th DCA 1973); Schmidt v. Reyes, 274 So.2d 242 (Fla. 1st DCA 1973); Curtiss-Wright Corp. v. King, 207 So.2d 294 (Fla. 3d DCA 1968); Johnson v. Eatonville, 203 So.2d 664 (Fla. 4th DCA 1967); Davis v. Zona, 198 So.2d 43 (Fla. 2d DCA 1967); Best v. Barnette, 130 So.2d 90 (Fla. 2d DCA 1961); Broward County Port Authority v. F. M. Rule & Co., 119 So.2d 82 (Fla. 2d DCA 1960).

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


author: PER CURIAM. MAGER, Chief Judge,

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY, Petitioner, v. Nereus F. (Pete) LOWE and Wanda Lowe, Respondents.
    No. 76-2330.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1977.
    Edna L. Caruso, of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for petitioner.
    M. Lanning Fox, of McRoberts & Warner, Chartered, Stuart, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari DENIED.

DOWNEY and LETTS, JJ., concur.

MAGER, C. J., dissents, with opinion.

MAGER, Chief Judge,

dissenting:

Petitioner-defendant seeks to review by certiorari an order denying petitioner’s motion to dismiss Count II of respondent-plaintiff’s complaint.

A review of the appellate record reflects that the order sought to be reviewed constitutes a departure from the essential requirements of law which will cause material injury to the petitioner throughout the remainder of the proceedings below for which a remedy by appeal would be inadequate. Allstate Ins. Co. v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976).

Count II of the plaintiff’s complaint seeks punitive damages as a result of defendant’s alleged wrongful attempt to cancel certain policies of insurance. In Allstate we held:

“Additionally, with respect to the claim for punitive damages, it is clear from the face of the pleadings and from a reading of the applicable decisions that respondent has failed to demonstrate, as is required, the existence of a willful and independent tort separate and distinct from the breach of contract, (citations omitted) An insuror’s bad faith refusal to settle a claim of its insured is not per se a willful and independent tort giving rise to a claim for damages (citations omitted).” (340 So.2d at 1204).

Although there is language in Allstate which may be susceptible to the interpretation that the grant of certiorari was based solely upon an issue involving the work product doctrine, such was not the intended effect. What should have been said there and what is unequivoeably and unmistakenly stated here is the proposition that certio-rari may lie to review an order denying a motion to dismiss a punitive damage count where such order is determined to constitute “a departure from the essential requirements of law which will cause material injury to the petitioner throughout the remainder of the proceedings below for which a remedy by appeal would be inadequate.” Allstate, supra.

It would seem that there is a material injury to the petitioner if he is required to defend against a measure of damages which, as a matter of law, has been held not ' to be recoverable. Any evidence introduced in connection with the punitive damages count could have the potential effect of tainting any judgment rendered for compensatory damages only — it would seem difficult, if not impossible, for a defendant to demonstrate reversible error (on the inclusion of the punitive damages count) where compensatory damages only were awarded.

Stated rhetorically, if the punitive damages count is not proper, shouldn’t it be eliminated at the outset of the proceedings, and, if not, shouldn’t the failure to do so be reviewable by certiorari? Perhaps we might thereby obviate the necessity of an appeal or an appellate issue.

Accordingly, I would grant certiorari.


text:
    James Dale GROWDEN, Appellant, v. STATE of Florida, Appellee.
    No. 76-310.
    District Court of Appeal of Florida, Fourth District.
    May 13, 1977.
    Richard L. Jorandby, Public Defender, James K. Green, Legal Intern, and Frank B. Kessler, Chief, Appellate Division, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review and consideration of the briefs, record on appeal and oral argument we are of the opinion that no reversible error has been clearly demonstrated, and the judgment and sentence is thereby affirmed except to the extent that reference in the sentence to imprisonment “at hard labor” is improper and is accordingly deleted. See McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

AFFIRMED, as modified.

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


text:
    Jerry GAMBELL, Appellant, v. STATE of Florida, Appellee.
    No. 75-1240.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Richard L. Jorandby, Public Defender, and Steven H. Parton, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Holland v. State, 340 So.2d 931 (Fla. 4th DCA 1976).

DOWNEY, ANSTEAD, and DAUKSCH, JJ., concur.