author: ENGLAND, Justice. DEKLE, Justice, Ret.

text:
    Foy BAXTER and Annie Smith Baxter, Petitioners, v. ROYAL INDEMNITY COMPANY, Respondent.
    No. 44842.
    Supreme Court of Florida.
    May 28, 1975.
    Rehearing Denied Sept. 25, 1975.
    J. Ben Watkins, of Watkins & Hill, Miami, for petitioners.
    J. Lewis Hall, Tallahassee, for respondent.
    J. B. Spence of Spence, Payne & Mas-ington, and Robert Orseck of Podhurst, Orseck & Parks, Miami for The Academy of Florida Trial Lawyers, amicus curiae.
   ENGLAND, Justice.

This case is here on a petition for cer-tiorari to the First District Court of Appeal, asking us to review an opinion reported at 285 So.2d 652. A majority of the Court tentatively accepted jurisdiction based on a conflict with other Florida appellate decisions, and we considered the merits and reconsidered jurisdiction after both parties had waived oral argument. Our review of the full record and the briefs of counsel persuade us that the decision below is not in conflict with any Florida appellate case, and that we do not have jurisdiction to consider the merits.

Petitioners brought an action against their automobile insurance carrier after they had received the full amount payable under the uninsured motorist clause contained in their policy, seeking compensatory and punitive damages in excess of the policy's limits. Their second amended complaint was dismissed for failure to state a cause of action, and the First District Court of Appeal affirmed the dismissal. A complete recital of the basis for petitioners’ suit is set forth in the opinion below.

In denying petitioners the legal opportunity to recover more than the policy limits from respondent, the district court held that there is no fiduciary relationship between the insureds and their insurer with respect to the carrier’s liability under the uninsured motorist clause of an insurance contract, and that the parties occupy a debtor-creditor type relationship for purposes of this class of insurance protection. In so deciding the district court recognized as valid, but distinguished, the body of law which has developed in this state to the effect that a fiduciary obligation does exist between insured and insurer under the bodily injury and property damage liability provisions of an automobile insurance contract.

Our review of the authorities alleged to establish the jurisdiction of this Court fails to reveal any conflict in appellate decisions which would authorize our review.

(1)Petitioners allege conflict with the decision of this Court which holds that an insurance company must exercise good faith in order to invoke a contract appraisal (arbitration) clause as a defense to the claim of its insured. The Court in that case, however, merely held that an insured was privileged to come into court to enforce its insurance policy where the carrier invoked a damage-setting arbitration clause in bad faith, i. e., for the purpose of resolving both damages (which was proper under the contract clause) and liability (which was not). Nothing in that case conflicts with the district court’s determination that no “excess” cause of action arises from a carrier’s bad faith invocation of an arbitration clause expressly designed to fix both damages and liability, prior to paying the policy limits demanded.

(2) Petitioners allege conflict with the line of decisions which hold that insurance companies have a fiduciary obligation to their insureds and to persons who stand in the legal shoes of their insureds. All of those cases involve the carrier’s liability for bodily injury or property damage, however, which are precisely the cases which the court below distinguished on policy grounds and did not disturb. Obviously those cases cannot be in conflict with the case now brought here for certiorari review.

(3) Petitioners allege conflict with the case law of Florida which authorizes the imposition of punitive damages in a common law action for fraud or malice, and in tort for malice or an intentional wrong. There is no direct conflict between these non-insurance cases and the district court’s determination that no cause of action for punitive damages can be predicated on a carrier’s insistence on contract arbitration.

(4) Finally, petitioners allege conflict with Government Employees Insurance Co. v. Whitaker, 218 So.2d 198 (1st Dist.C't. Ct.App.1969), a case which did involve an interpretation of the uninsured motorist clause of an insurance contract. In that case the court held that the carrier could not resort to arbitration after it had refused to deal in good faith to resolve its insured’s claim for compensation, and that the insured could proceed in the courts of this state to determine, within policy limits, the amount of his claim. The court held that the carrier, by its conduct, had waived its right to invoke arbitration. Government Employees is the antithesis of the case now before us. Whereas in Government Employees the carrier had refused arbitration until a lawsuit under the policy was commenced, in this case the carrier went to arbitration and tendered the full amount awarded before petitioners sued for excess amounts. Whereas in Government Employees the insured claimed compensation within the policy limits, in this case the insured has collected the full policy limits and now demands damages in excess of the contract terms. Whereas in Government Employees the court held that a contract right to arbitration can be waived by misconduct, in this case we are asked to hold that a contract right to arbitration cannot be invoked by reason of misconduct. We find nothing in Government Employees which conflicts with the decision below.

There being no “direct conflict with a decision of any district court of appeal or of the supreme court on the same question of law”, we are without jurisdiction to consider the merits of petitioners’ case. The writ of certiorari to the First District Court of Appeal is discharged.

ROBERTS, BOYD and OVERTON, JJ., concur.

DEKLE (Retired), J., dissents with opinion with which ADKINS, C. J., and McCAIN, J., concur.

DEKLE, Justice, Ret.

(dissenting):

Can an insurer be held liable to its own insured for a bad faith refusal to settle a claim under an uninsured motorist provision of its policy ?

That is the question presented here on conflict certiorari from the First District Court of Appeal opinion reported at 285 So.2d 652 (1973) which held that á complaint based on such a theory did not state a cause of action. Oral argument was waived after issuance of our writ granting the petition and setting, the cause for oral argument.

Since the cause comes to us in the posture of a dismissal of the complaint for failure to state a cause of action, it must be determined whether the facts alleged in the complaint are sufficient to support recovery of the money judgment sought under any theory of law, without being concerned at this point with the question of the factual correctness of these allegations, but merely their sufficiency to support a cause of action. On this basis, the facts are as follows: The vehicle owned by petitioners, and insured under the policy in question, was struck by another vehicle negligently operated by an uninsured motorist who was solely at fault, resulting in the death of petitioners’ minor son and serious permanent injury to petitioners’ minor daughter. Petitioners made demand on the insurer (respondent herein) for payment to them of the full amount of uninsured motorist coverage provided by the policy they held, which demand was refused by the insurer until the existence and amount of liability imposed upon it were fixed by arbitration as provided by the policy, despite only minimum coverage of $20,000.00 under uninsured motorist coverage, and in the face of one death and a serious injury, and an investigation showing the uninsured motorist to be at fault for the accident. Arbitration proceedings, nevertheless, were conducted at respondent’s insistence and not surprisingly resulted in an order in favor of petitioners, awarding them the full amount of coverage provided by the policy for the death and injuries of the children, just as they had offered to accept at the outset. The amount awarded by the arbitrators was thereupon paid by the insurer, following which the action sub judice was instituted.

In a two-count complaint petitioners allege that the insurer was guilty of bad faith in negotiating, evaluating and paying the benefits due them under circumstances where the insurer owed a legal duty to act in good faith; that because of such bad faith, petitioners seek judgment for the full amount of damages suffered by them as a result of the death and injuries sustained by their children (in excess of policy limits). Secondarily, they allege that as a result of the bad faith negotiations of the insurer, they were caused to incur additional expenses in the collection of benefits due them under the policy and further suffered great mental stress and physical pain as a result of such conduct. Whether the last asserted item of damage is recoverable in such a cause of action is not considered here. The complaint also alleges that the insurer’s bad faith and wanton handling of petitioners’ claim were motivated by malice sufficient to warrant the imposition of punitive damages.

The trial court held that the complaint failed to state a cause of action upon which any relief could be granted and accordingly entered a judgment of dismissal. The First District Court of Appeal affirmed, holding that under such circumstances the insurer was entitled to invoke the arbitration clause for whatever reason it desired and that there was no fiduciary relationship between insurer and insured under the circumstances. Petition for cer-tiorari was filed, and we tentatively accepted jurisdiction on the basis of conflict of decisions. Art. V, § 3(b)(3), Fla.Const.

The question presented, as the district court aptly summarized it at 285 So.2d 654-655, is:

“When an automobile insurance policy contains an ‘uninsured motorist’ clause and the insured is involved in an accident with an uninsured motorist; reasonable investigation reveals that the uninsured motorist was solely at fault, and the damages clearly exceed the policy limits; the insured offers to settle with his insurer within the policy limits but the latter willfully, maliciously, and for its own selfish interest and gain, refuses to settle until the existence and amount of liability is fixed by arbitration; is the insurer liable for punitive damages or for actual damages in excess of the policy limits plus legal interest?”

The district court answered in the negative. For the reasons set forth below the question should, in my judgment, be answered in the affirmative, as Judge Spector put it so well in his able dissent to the DCA opinion. A brief review of some of the major decisions of the courts of this state dealing with an insurer’s obligations to its insured and to third parties will support such an affirmative answer, and will also demonstrate conflict for our jurisdiction.

In New Amsterdam Casualty Co. v. J. H. Blackshear, Inc., 116 Fla. 289, 156 So. 695 (1934), we held that in order for an insurer to be entitled to the benefit of an appraisal clause as a defense to the insured’s claim under a collision provision, the appraisal clause must be invoked in good faith by the insurer. In Auto. Mut. Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938), we determined that an insurer could be held liable to the party injured by its insured, on a basis of “bad faith failure to settle” where the insurance policy itself gave the injured third party a right to proceed against the insurer if the judgment were returned unsatisfied, on the basis that the injured party was a third-party beneficiary of the contract, provided the insured himself was in a position to recover for such “bad faith failure to settle.” In Canal Ins. Co. v. Sturgis, 114 So.2d 469 (Fla.App.1st 1959), aff’d. 122 So.2d 313 (Fla.1960), it was held that an injured third party had no cause of action directly against the insurer for “bad faith failure to settle,” absent the peculiar type of policy provision present in Auto. Mut. Indemnity Co. v. Shaw, supra, the court reasoning that the insurer’s duty of good faith was owed to its insured rather than the third party, who was not legally damaged by the failure to settle but in fact gained thereby, and further reasoning that the amounts in excess of policy limits which the insured might be able to recover were damages resulting from the insurer’s breach of contract or tort, rather than smacking of insurance. Then in American Fire & Casulaty Co. v. Davis, 146 So.2d 615 (Fla.App. 1st 1962), it was held that an insured could sue his own insurer for “bad faith failure to settle,” resulting in an excess verdict against the insured, despite the fact that the insured had not satisfied the excess judgment, the First District reasoning that payment of the excess verdict was not a prerequisite to institution of the action and that the effect of the excess judgment on the insured’s credit rating was sufficient damage to justify proceeding with the cause.

The landmark case of Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), held that a direct cause of action inured to a third party beneficiary against an insurer in motor vehicle liability insurance coverage cases, this Court determining that a policy provision proscribing such a direct action was contrary to public policy and would not be enforced as such. Nationwide Mutual Ins. Co. v. McNulty, 229 So.2d 585 (Fla.1969), established the principle that the insured’s cause of action against his insurer for “bad faith failure to settle a claim under the policy’s liability provisions could properly be assigned to the injured judgment debtor, who could then maintain the action directly against the insurer. So why could not the insured himself bring an action under his own policy here ?

In Thompson v. Commercial Union Ins. Co., 250 So.2d 259, 264 (Fla.1971), this Court held that “a judgment creditor may maintain suit directly against tortfeasor’s liability insurer for recovery of the judgment in excess of the policy limits, based upon the alleged fraud or bad faith of the insurer in the conduct or handling of the suit” even though the insured had not assigned the claim to the judgment creditor, since the judgment creditor was a third party beneficiary of the liability insurance policy. Quoting from Shingleton v. Bus-sey, supra, we noted that the third party beneficiary doctrine encompasses a cause of action against an insurer in favor of members of the public injured through the acts of an insured.

Turning to the case at hand, I fail to perceive a valid distinction between the Thompson and Shingleton third party right of action and a cause of action in favor of the insured for his insurer’s bad faith failure to settle an uninsured motorist claim filed by the insured, notwithstanding the contractual arbitration provisions. See also our recent Campbell v. Government Employees Ins. Co., 306 So.2d 525 (Fla.1974).

It is clear that, had the accident in question involved a motorist who had insurance, and had that motorist’s insurer acted in bad faith in failing to negotiate petitioner’s claim, petitioner, as a third party beneficiary of the other motorist’s insurance policy, would have had a cause of action against that insurer. The difference presented by our case is solely that the other motorist was uninsured, thus placing petitioner’s own insurer in the position of the other motorist’s hypothetical insurer, under the provisions of the policy.. This does not lead to a difference in result, since it is the public policy of this state that every insured is entitled to recover under the uninsured motorist provisions of his policy for the damages he or she would have been able to recover if the offending motorist had maintained a policy of liability insurance.

In holding that the insurer could not be charged with the commission of a tort “merely because it elected to exercise a lawful option open to it under the contracts,” regardless of bad faith or malice, the DCA opinion conflicts with the rule stated in Government Employees Ins. Co. v. Whitaker, 218 So.2d 198 (Fla.App.1st 1969), wherein the same First District previously held that, at least under certain circumstances, “the insurer cannot in good faith refuse to negotiate settlement” under an uninsured motorist clause and demand arbitration, even though the uninsured motorist provisions of the policy contained an arbitration clause. It also conflicts with New Amsterdam Casualty Co. v. J. H. Blackshear, Inc., supra, in which we held that in order for an insurer to be entitled to the benefit of an appraisal clause as a defense to the insured’s claim, the appraisal clause must have been invoked in good faith by the insurer. In holding the arbitration clause here involved to be a complete defense to the claim, the DCA rendered a decision clearly in conflict, giving rise to our jurisdiction pursuant to Art. V, § 3(b)(3), Fla.Const.

The insurer makes much of the adversary nature of the relationship between itself and its insured under the uninsured motorist provisions of the policy, contending that because of this adversary situation, it does not have any fiduciary duty toward its insured to act in good faith in the settlement of his claim, despite the relationship of insurer and insured existing between them. Yet surely it cannot be argued that this relationship is more adverse than that existing between insurer and a third party claimant with whom the insurer has no contractual ties. Such a third party claimant is clearly entitled under the law to bring an action against the insurer for bad faith in settlement negotiations, either with or without an assignment of the cause of action from the insured, despite the lack of any fiduciary obligation of the insurer toward such a third party. Even in a case where a third party claimant is not damaged by the failure to settle, and is in fact benefitted to the extent of the excess of the verdict over the rejected settlement offer, the third party may nonetheless maintain the action for the insurer’s breach of his obligation of good faith.

The State’s public policy is tó place the insured in the same position as if the uninsured motorist had maintained a liability policy with the statutorily-prescribed minimum limits. Accordingly, in a situation involving an accident between its insured and an uninsured motorist, the insurer stands in the shoes of the hypothetical insurer of the uninsured motorist, and owes its actual insured at least the same obligation of good faith it would owe if it in fact were the insurer of that motorist. The public policy involved is thereby fulfilled when the insurer assumes such position of the uninsured motorist’s hypothetical liability insurer, who in turn owes to petitioners an obligation of good faith dealing.

Basically, the insured, in contracting to purchase uninsured motorist coverage, entered into a covenant with the insurer to obtain insurance coverage to protect his interests in the event of an accident involving an uninsured motorist; this agreement contains an implied obligation that the insurer will handle such a claim in good faith. Government Employees Ins. Co. v. Whitaker, supra. It would be anachronistic to hold that an insurer owes a duty of good faith in handling the liability claim of a third person totally unrelated to the parties to the contract of insurance while at the same time holding that the insurer owed no such obligation of good faith to its own insured, who has paid premiums for the uninsured motorist coverage for the specific purpose of protecting himself from damages inflicted by an uninsured motorist.

It is clear that the insurer owes a duty of good faith in settlement negotiations to third party beneficiaries. Thompson v. Commercial Union Ins. Co., supra. It is also clear that an insurer owes its own insured a duty of good faith in handling the insured’s claims under his own policy. New Amsterdam Casualty Co. v. J. H. Blackshear, Inc., supra; Government Employees Ins. Co. v. Whitaker, supra. If anything, more reason for the existence of a duty of good faith is present in the case of an uninsured motorist claim by the insured than in the case of a liability claim by a third party beneficiary, since the additional factor is present that the insured has parted with consideration for the coverage in paying the premium; he is not a stranger to the contract of insurance, but a party to it who has paid his money to the insurer in the reasonable expectation that a good-faith claim will receive good-faith treatment. An obligation of good faith is inherent in the provisions of a liability insurance policy, implied by law. If the facts recited in the complaint sub judice are accurate, this obligation of good faith has been breached; and for that breach, a cause of action arises.

Just as an insured can sue his own insurer for “bad faith failure to settle” a claim under the liability provisions of his policy, so too should he be able to maintain a cause of action, in appropriate circumstances, for his insurer’s “bad faith failure to settle” his own claim under the uninsured motorist provisions of his policy. Justice, public policy, and the implied obligation of good faith in dealing with one’s own insured under the contractual provision, all demand the same result. In my view, therefore, petitioner’s amended complaint did in fact state a cause of action upon which relief could be granted, and hence the trial court, in dismissing the amended complaint, and the DCA, in affirming that judgment, were in error.

I would accordingly quash the decision of the First District Court of Appeal at 285 So.2d 652, with directions to remand the cause to the Circuit Court of the Second Judicial Circuit, in and for Leon County, to reinstate the amended complaint and proceed to trial on it.

I, therefore, most respectfully dissent.

ADKINS, C. J, and McCAIN, J., concur.

      . Fla.Const., art. 5, § 3(b)(3).

      . In this legal posture we must accept as true the allegations of the complaint that respondent acted in bad faith in refusing to pay on petitioners’ demand the full policy limits under their contract, and insisting on the contract right of arbitration.

      . “The legal relationship existing between the insured and his insurer on claims for . damages caused by uninsured motorists is that of debtor and creditor in which no fiduciary relationship is present.” Baxter v. Royal Indemnity Co., 285 So.2d 652, 657 (1st Dist. Ct.App.Fla.1973).

      . New Amsterdam Casualty Co. v. T. H. Blackshear, Inc., 116 Fla. 289, 156 So. 695 (1934).

      . See Campbell v. Gov’t Employees Insur. Co., 306 So.2d 525 (Fla.1974).

      . Thompson v. Commercial Union Insur. Co., 250 So.2d 259 (Fla.1971); Nationwide Mutual Ins. Co. v. McNulty, 229 So.2d 585 (Fla.1970); Shingleton v. Bussey, 223 So.2d 713 (Fla.1969); Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938).

      . E. g., Holbein v. Rigot, 245 So.2d 57 (Fla. 1971); Associated Heavy Equip. Schools, Inc. v. Masiello, 219 So.2d 465 (3d Dist.Ct. App.Fla.1969).

      . E. g., Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957).

      . Fla.Const. art. 5, § 3(b)(3).

      . In connection with the uninsured motorist coverage, the policy stated:
      “ . provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.”

      . Third Dist. has now held similarly, citing First Dist. Baxter, in Midwest Mutual Ins. Co. v. Brasecker, 311 So.2d 817 (1975), op. filed 4-15-75.

      . Thompson v. Commercial Union Ins. Co., 250 So.2d 259 (Fla.1971); Nationwide Mutual Ins. Co. v. McNulty, 229 So.2d 585 (Fla. 1969).

      . Harmon v. State Farm Mutual Auto. Ins. Co., 232 So.2d 206 (Fla.App.2d 1970); Continental Ins. Co. v. Wallace, 233 So.2d 195 (Fla.App.3d 1970); Standard Accident Ins. Co. v. Gavin, 184 So.2d 229 (Fla.App. 1st 1966), cert. dism’d, 196 So.2d 440 (Fla. 1967); Davis v. U.S. Fidelity & Guaranty Co., 172 So.2d 485 (Fla.App.lst 1965); Mullis v. State Farm Mutual Auto. Ins. Co., 252 So.2d 229, 234 (Fla.1971) ; Chandler v. Government Employees Ins. Co., 342 F.2d 420 (CA 5, 1965) (applying Florida law).

      . See footnote 3.

      . Id.

      . See footnote 4.

      . Auto. Mut. Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938); Nationwide Mutual Ins. Co. v. McNulty, supra; Thompson v. Commercial Union Ins. Co., supra.

      . American Fire & Cas. Co. v. Davis, 146 So.2d 615 (Fla.App.1st 1962); Campbell v. Government Employees Ins. Co., supra.

      . Government Employees Ins. Co. v. Whitaker, supra, and Auto Mutual Indemnity Co. v. Shaw, supra, and Campbell v. Government Employees Ins. Co., supra.


source: Caselaw Access Project

author: ADKINS, Chief Justice: BOYD, Justice

license: Public Domain

text:
    Jack WILSON et al., Petitioners, v. Jack SANDSTROM, Director, Department of Corrections and Rehabilitation, Dade County, Florida, et al., Respondents. FLORIDA GREYHOUND OWNERS & BREEDERS ASSOCIATION, INC., a Florida Corporation, et al., Appellants, v. WEST FLAGLER ASSOCIATES, LTD., a Florida limited parnership, Appellee.
    Nos. 47674, 47737.
    Supreme Court of Florida.
    July 21, 1975.
    Rehearing Denied July 29, 1975.

      Richard A. Pettigrew and Guy B. Bailey, Jr. of Pettigrew & Bailey, Miami, for petitioners-appellants.
    Robert L. Shevin, Atty. Gen., and James Dudley Whisenand, Asst. Atty. Gen., and Marion Sibley of Sibley, Giblin, Levenson & Ward, Miami Beach, and Patton, Planner, Nadeau, Segal, Zeller & LaPorte, Miami, for respondents-appellees.
   ADKINS, Chief Justice:

This is an original proceeding in habeas corpus wherein 18 owners of racing greyhounds seek relief from incarceration resulting from violation of an injunctive order of the circuit court entered July 8, 1975. A return to the petition has been filed.

We also have under consideration a review by interlocutory appeal of an order of the circuit judge entered July 3, 1975, granting a mandatory temporary injunction. Our jurisdiction was determined in Wilson v. Sandstrom, Case No. 47,674, opinion filed July 17,1975.

For clarity, West Flagler Associates, Ltd., the owner and operator of the race track is hereinafter referred to as Flagler; the owners of the greyhounds used at the race track are referred to as the kennel owners.

Flagler instituted suit against the kennel owners and a kennel owners’ association seeking a temporary and permanent mandatory injunction requiring the defendants to comply with contracts for furnishing greyhounds to the race track commencing July 3, 1975. The State of Florida and Metropolitan Dade County were allowed to intervene as parties-plaintiff.

Flagler alleged that under the contract it granted exclusive right to the named kennel owners to race their dogs and agreed to furnish purses, and that Flagler has complied with the contract. Flagler was licensed to operate from July 3, 1975, through September 4, 1975, from November 1, 1975, to January 9, 1976, and from May 1, 1976, to July 2, 1976. The contracts between Flagler and the kennel owners encompass these dates and were identical as to form.

Under the contracts the kennel owners agreed not to take any action which would be detrimental to the race track and greyhound racing. It was specifically provided that the kennel owners would not do any act which would bring about a temporary or permanent cessation or suspension of racing during the period of time covered by the contract.

It was alleged that under the rules of the Department of Business Regulation the kennel owners were required to present their dogs for schooling in June for the race meet commencing July 3, 1975. On June 10, 1975, the kennel owners threatened Flagler with indeterminate action. As a result, Flagler alleges it would be unable to conduct its race meet; that the kennel owners are required to supply “chattel of unusual and unique character; namely racing greyhounds which are not readily obtainable in the ready market”. Flagler alleges that it will not be able to get the owners to supply greyhounds and suffers irreparable damage for each day it is not open. It was also alleged that, if notice were given the dog owners, the dogs may be removed from the jurisdiction.

Pursuant to the sworn complaint, the court, on June 30, 1975, without notice, issued a temporary injunction restraining removal of the dogs from the jurisdiction and ordered a hearing to be held on July 3, 1975. On July 3, 1975, the kennel owners appeared and announced that a petition for removal to the Federal court had been filed. Therefore, they would not participate in the hearing. Their request for permission to withdraw from the hearing was granted.

At 5:55 p. m. on July 3, 1975, the Federal court of its own motion remanded the cause to the State court. The State court was still in session at the time of the entry of the order of remand and at 6:10 p. m. on July 3, 1975, an order was entered granting the temporary mandatory injunction. This order recited that the State of Florida was suffering a loss of tax revenue of $64,000 per day, and that Flagler was suffering irreparable damage because of the kennel owners’ refusal to supply dogs. The court ordered immediate compliance with the contracts by the filing of entries not later than July 4, 1975, at 10:00 a. m.; that upon refusal of the kennel owners to file entries that Perrine Palmer take custody and control of the dogs for the purpose of running them.

The kennel owners refused to submit their entry and Palmer attempted to take control of the dogs. Because of the number of dogs and inability to get adequate help, a hearing was held at the request of the receiver on July 5, 1975. Custody of the dogs was thereupon returned to the kennel owners, who were informed that a contempt hearing would be held on Monday, July 7, 1975.

On the morning of July 7, 1975, prior to the contempt hearing, the kennel owners filed a notice of interlocutory appeal seeking review of the order of July 3, 1975. This appeal has been transferred to this Court.

At the hearing on July 7, 1975, each kennel owner was called to the stand and interrogated concerning his knowledge of the order and whether he had willfully and deliberately refused to comply with the order of July 3, 1975. On July 8, 1975, the kennel owners were adjudged guilty of contempt and 18 of them were incarcerated in the Dade County penal facilities. These are the petitioners in the habeas corpus proceeding.

The kennel owners say that the order of July 3, 1975, imposing a mandatory injunction exceeded the jurisdiction of the circuit court. It is contended the mandatory injunction could not be granted until after final hearing, citing F. E. C. Railway Co. v. Taylor, 56 Fla. 788, 47 So. 345 (1908), and Montgomery Pipe & Tube Company v. Mann, 205 So.2d 660 (Fla.App. 3d 1968). Flagler says that temporary mandatory injunction may be granted where it appears that plaintiff has a clear right to invoke the remedy free from reasonable doubt.

In Kellerman v. Chase & Co., 101 Fla. 785, 135 So. 127 (1931), Chase & Co. had purchased a crop of tomatoes by contract from Kellerman and others. Upon the failure to deliver, Chase & Co. applied to the circuit court and secured a temporary mandatory injunction requiring Kellerman to deliver the tomatoes. In upholding the validity of the temporary mandatory injunction, this Court said:

“It is a general rule that a mandatory injunction can only be properly granted on a final hearing, as its effect before that time is like awarding execution before trial and judgment. See Fla. East Coast Rwy. Co. v. Taylor, 56 Fla. 788, 47 So. 345, and cases there cited. However, in this case it not only appears that the plaintiff has a clear right free from reasonable doubt to invoke the remedy, but it also appears that to delay the remedy would necessarily involve a denial of the right because it is shown positively by both the allegation of the bill and the proof submitted that the tomato season covers a period of only some five or six weeks, and it is a matter of common knowledge that the tomato crop is of the most perishable character.

“In Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625, 626, this court, speaking through Mr. Justice Terrell, said:

‘It is well settled that mandatory injunctions are rarely granted before final hearing, or before the parties have full opportunity to present all the facts in such manner as will enable the court to see and judge what the truth may be; however, instances are not wanting where relief by mandatory injunction was granted on the proper showing made. Taylor v. Florida East Coast R.R. Co., 54 Fla. 635, 45 So. 574, 16 L.R.A. (N.S.), 307, 127 Am.St.Rep, 155, 14 Ann.Cas. 472; Florida East Coast R. Co. v. Taylor, 56 Fla. 788, 47 So. 345; City of Ocala v. Anderson, 58 Fla. 415, 50 So. 572; 14 R.C.L. 317.’ ”

A mandatory temporary injunction may be issued requiring specific performance of a contract. Bowling v. National Convoy and Trucking Co., 101 Fla. 634, 135 So. 541 (1931). See also, Price v. Gordon, 129 Fla. 715, 177 So. 276 (1937). In Daniel v. May, 143 So.2d 536 (Fla.App. 2d 1962), a mandatory temporary injunction was issued to require the defendants to remove a building encroaching on a setback line.

We conclude as a general rule, that a temporary mandatory injunction is proper where irreparable harm will otherwise result, the party has a clear legal right thereto, and such party has no adequate remedy at law. In the case sub judice we are confronted with a fourth consideration, i. e., the public interest.

Public consideration was specifically recognized by the Court in F. E. C. Railway Co. v. Taylor, supra, cited by the kennel owners, when the Court declined to issue a mandatory temporary injunction to force the railroad to build a spur track and depot. The rationale for not issuing the injunction was the detriment to the paramount public interest.

State Road Department of Florida v. Fugoli, 123 So.2d 473 (Fla.App. 1st 1960), involved a situation where the State sought such an . injunction for the removal of property encroaching on the public right of way. The appellate court in holding that mandatory injunctive relief was appropriate, said:

“The relief contemplated should be readily available where the public right or injury to many is concerned, and is to be distinguished from those cases where in-junctive relief may be deferred without undue hardship pending the result of an action at law. Such considerations drive to the very heart of the inherent power of courts of equity to provide the type of relief here sought. 123 So.2d at 475.”

In Zetrouer v. Zetrouer, supra, this Court affirmed the issuance of a mandatory temporary injunction to require defendants to open a road and remove a fence.

The record clearly shows that Flagler had a clear legal right to the issuance of an injunction and that irreparable harm would result if such injunction were not issued. Also, the State of Florida, through the loss of an estimated $64,000 a day in revenue, is irreparably harmed in that there is no other source to offset this loss of revenue. Furthermore, the State is losing the confidence of the public in its ability to properly regulate the gambling activities in pari-mutuel wagering. The State Deputy Economist testified to the tremendous impact that greyhound parimutuel revenue loss will have upon the budgets of the State and counties. The Finance Director of Dade County submitted an affidavit stating that the budget for the county fiscal year beginning October 1, 1975, had been established in reliance upon the continued receipt of funds derived in part from pari-mutuel dog racing activities in Dade County.

Furthermore, the State of Florida has granted to Flagler specific dates for racing —July 3rd to September 4th. Once these racing days are lost, they may be lost forever, as another track is scheduled to open on the day Flagler is scheduled to close. In addition, the damage to Flagler in the minds of the public resulting from this boycott and refusal of the kennel owners to perform their contracts cannot possibly be measured in dollars and cents.

There is no adequate remedy at law. The trial court, sitting as a court of equity, certainly had the power and authority to protect the public interest or rights and also to avoid injury to many who are concerned with the continued operation of the track and the receipt of funds from the pari-mutuel revenues.

Regardless of the authority of the court to enter such an injunction, the kennel owners say that the contract is primarily one for a personal service and incarceration for failure to comply with the provisions of a contract requiring personal services amounts to involuntary servitude, thereby violating the provisions of the United States Constitution, Thirteenth Amendment, § 1. We must first consider whether the contract does, in fact, relate to personal services.

In considering the contracts and the rules of the Board of Business Regulation relating to greyhound racing (Ch. 7E-2), it appears that the kennel owners had a contractual obligation to produce racing greyhounds at the track, while all things relating to the registration, training, etc., of the greyhounds prior to production of the greyhounds were prescribed and limited by the rules and regulations of the Board of Business Regulation.

The owners of greyhounds have no control over the greyhounds after they are brought to the track for a race. According to the rules, an owner must bring the greyhound to the track at least one hour before post time of the first race of each program of each day. Rule 7E-2.14(3). The greyhound is then weighed in and placed “in lock out kennels under the supervision of the paddock judge and no owner or other person excepting the paddock judge, veterinarian, kennel master, scales clerk, lead out, judges or commission representatives shall be allowed in or near the lock out kennel”. Rule 7E-2.14(12). This means that the representative of the kennel owner is required by rules of the Board of Business Regulation to present his greyhound to Flagler at least one hour before the first race. The greyhound is then placed in a lock out pen, and no person is permitted to approach that pen except officials designated by the rules.

■Thereafter “under the supervision of the paddock judge, the kennel master shall unlock the lock out kennels immediately before weigh-in time to see that the kennels are in perfect repair and that nothing has been deposited in any of the kennels for the greyhounds’ consumption . . Rule 7E-2.15(3). This means that just prior to the race the official of the Department of Business Regulation or those designated by the rules will unlock the lock out pen, inspect the greyhounds and thereafter they will be re-weighed and the identification re-inspected. The greyhounds are led to the starting post by grooms provided by the track operation and licensed by the Department. Rule 7E-2.16.

It thus appears that under the rules regulating greyhound racing, the owner, trainer, or helper or agent of the owner has absolutely nothing to do with the grey-' hound except to present it to Flagler at least one hour before the first race. The owner’s responsibility for the condition of the dog is established and regulated by the rules relating to greyhound racing. The contracts make no changes in this responsibility. The duties and obligations of the owners and trainers relative to the training and schooling of the greyhounds are to the State, not to Flagler. The kennel owners supply a unique product, not readily obtainable on the market, and the contract merely provides that this unique product be produced by the kennel owner at a specified time.

A contract is properly considered a personal service contract when it involves one such as a football player or boxer signing to perform a game or a match. In the case sub judice the kennel owners simply contracted to furnish greyhounds properly schooled and trained under the regulations of the State of Florida for racing purposes at Flagler. A greyhound is not a “party” as provided in the United States Constitution, Amendment Thirteen, § 1.

Even if we assume that some personal service is involved in the requirement that the kennel owners produce their unique product, temporary relief should nevertheless be granted. As stated in 17 FlaJur., Injunctions, § 37, pp. 397, 398:

“Contracts of Service.
Many of the cases in which equity has been asked to enjoin a breach of contract arise from disputes concerning contracts for personal services. Underlying the exercise of the injunctive power in such cases is the difficulty of replacing such service, and the inadequacy of damages as compensation for such loss. In-junctive relief, therefore, is often invoked to prevent violation of contracts calling for personal services or acts of a special character, or for such services by persons of eminence in their calling, possessing special qualifications. It follows clearly that reasons for equitable intervention are wholly lacking in cases of ordinary employment, where no personal contract or peculiar influence of the employee over the customers of his employer exists, and where the services are without special merit and are such as can be readily supplied or obtained from others without much difficulty or expense. In such cases injunctive relief will be denied.”

Some of the contracts under consideration were executed more than a year prior to the beginning of the racing season, but all were executed at least five months prior to the beginning of the racing season. On June 10, 1975, the kennel owners advised Flagler by Notice of Intent dated June 10, 1975, as follows:

“We the undersigned representatives of the attached list of kennel owners at West Flagler Associates Limited, have been authorized to serve you with this notice in accordance with Greyhound Racing Rules and Regulations # 7E 2.-02(21) (b).
“Please be advised that we wish to enter into immediate negotiations on all matters between the kennel owners and the track, relating to the meet which com-menees at your track on July 3, 1975. The purpose of this notice is to advise you and the State of Florida, that in the event you refuse to negotiate these matters in good faith, that the individual kennel owners may take such action which may affect the public welfare, and such action may be taken on or after June 25, 1975.”

Obviously, the underlying reason for breach of the contract was hope for better provisions. There is no allegation or contention relating to fraud or duress in the execution of the contract. Flagler seeks the enforcement of the contract while the kennel owners demand that the terms be re-negotiated.

The case sub judice is not similar to Pinellas County Classroom Teachers’ Association, Inc. v. Board of Public Instruction, 214 So.2d 34 (Fla.1968), where an order of the trial court enjoining public school teachers from striking and giving them alternatives of working and complying with their contracts, or terminating their contracts, was affirmed by this Court. A “strike” contemplates employment. The kennel owners are independent contractors, fitting the definition in 17 Fla. Jur., Independent Contractors, § 2, p. 174:

“Another commonly accepted definition is that an independent contractor is one who, in the exercise of an independent employment, contracts to do certain work according to his own methods, and without being subject to the control of his employer except as to the product or result of his work.
“The difference between an independent contractor and a servant is well recognized, the chief distinction being the right of control over the work.”

The kennel owners contracted to provide greyhounds which were properly trained and schooled under State regulations. They were not subject to the control of Flagler except as to the product or result of their work. When the greyhounds were delivered to the track, the kennel owners exercised no further control over the greyhounds. This relationship contains all the elements of an independent contractor as opposed to an employee.

The kennel owners say that the contract does not contain sufficient mutuality of obligations so as to allow it to be enforced by mandatory injunction. The terms of any contract should be such that at least some of them might be enforced against the other party to the contract. As stated in 17 Fla.Jur., Injunctions, § 35, p. 396:

“For the injunctive remedy to apply to restrain the breach of a contract, the contract must be certain and unambiguous in its terms. Further, the contract should be one in which there is mutuality of remedy as well as of obligation. That is, the terms must be such that equity might enforce at least some of them against the other party to the contract. This does not mean, however, that each party need have precisely the same remedy in form, effect, or extent. A mere difference in rights stipulated does not necessarily destroy mutuality of remedy. Thus the fact that a lease is terminable at the option of one party only does not preclude that party from enjoining a breach of its terms by the other.”

The contracts in question give the kennel owners the right to withdraw dogs providing adequate notice of the reasons for the withdrawal is given to the track. The track cannot arbitrarily refuse the owners’ withdrawal or substitutions. It also provides that in the event of the withdrawal of dogs, either the track operator or the kennel owner may pursue any legal or equitable remedy, including a complaint to the State of Florida.

The contract is clear and unambiguous as to its terms. In consideration of the kennel owners’ agreement to furnish the dogs, the track owner is required to accept the dogs tendered by the kennel owners and pay to the kennel owners a specified consideration for the furnishing of the dogs.

The contract does not give any party unbridled discretion to do or refuse to do any act. The kennel owners could enforce the contract just as Flagler. The contention that there is lack of mutuality is without merit.

The kennel owners contend that the notice of interlocutory appeal directed to the order granting the mandatory injunction automatically stayed the mandatory injunction and the subsequent hearing and order holding the kennel owners in contempt was erroneous or void.

Under general law, in other jurisdictions, a mandatory injunction is automatically stayed by an appeal from the order or decree granting it. 42 Am.Jur.2d, Injunctions, § 348. An annotation entitled, “Stay of Injunction by Appeal”, 93 ALR 723, recognized that Florida General Statutes of 1920, § 2922 and § 3170, departed from the general rule and provided that any injunction could be suspended if authorized by supersedeas order of the court. This statute was incorporated in F.S. § 59.13, which, in turn, was incorporated as Rule 5.1, Florida Appellate Rules, which provides as follows:

“When it shall be made to appear to the lower court that an appeal to review an interlocutory order or decree in equity has been or is about to be taken to the Court, the lower court may, in its discretion, grant a supersedeas or stay upon appellant’s giving a good and sufficient bond conditional that such appeal shall be taken within 10 days, and to pay all costs, damages and expenses occasioned by reason of the stay of proceedings, together with such other and further conditions as may be fixed by the lower court in the event the order or judgment of which a review is sought is not quashed, modified or reversed.”

Under this rule the interlocutory appeal would not operate as an automatic stay of the temporary mandatory injunction. An application for supersedeas must be made to the trial court or to the District Court of Appeal.

The kennel owners sought a stay from the trial court and in the District Court of Appeal, Third District, which were denied. Under our rules of procedure a mandatory injunction is not automatically stayed by an appeal, but only upon supersedeas.

City of Miami v. Cuban Vill-Age Co., 143 So.2d 69 (Fla.App. 3d 1962), cited by the kennel owners, involved an appeal from orders prohibiting certain actions by the City and compelling other actions. The court held that the notice of appeal was effective to stay the operation of a mandatory injunction. The City was not required to furnish a supersedeas bond under a then existing statute, so the formal application for a supersedeas was unnecessary. However, a litigant who may be required to post a bond must, of course, make formal application for a supersedeas in order to gain a stay.

In the case sub judice the interlocutory appeal did not operate as an automatic stay of the temporary mandatory injunction.

The kennel owners say the attempted Federal removal ousted the trial court of jurisdiction and the order granting the mandatory injunction on July 3rd was erroneous. When removal is shown to be improper the State court’s actions are not void. F & L Drug Co. v. American Central Ins. Co., 200 F.Supp. 718 (Dist.Ct. Conn. 1961).

In Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563, 61 S.Ct. 715, 85 L.Ed. 1044 (1941) the Supreme Court rejected a similar argument. Although that case proceeded under an earlier version of the removal law, the jurisdictional proscription was similar:

“While the opinion does not expressly consider the effect of a petition for removal on subsequent proceedings in the state court, the clear import of the decision is that the proceedings are valid if the case was not in fact removable.
“The rule that proceedings in the state court subsequent to the petition for removal are valid if the suit was not in fact removable is the logical corollary of the proposition that such proceedings are void if the cause was removable. 312 U.S. at 566, 61 S.Ct. at 717.”

Furthermore, in 76 C.J.S. Removal of Causes § 239, it is stated:

“Where the right to remove a cause from a state court to a federal court does not in fact exist, and after an attempted or colorable removal the cause is remanded by the federal court for want of jurisdiction, the jurisdiction of the state court is to be regarded as never having been lost, the federal court never having acquired jurisdiction; or at most the state court is' said to have merely had its jurisdiction suspended during the period of the attempted or colorable removal of the cause. Proceedings had in the state court after the attempted removal and pending the remand are generally held to be valid and effectual, except, perhaps, where such proceedings were in violation of an injunction lawfully issued by the federal court; but there is authority to the contrary.”

In the case siib judiee the cause is remanded to the State court within hours after the petition for removal was filed. The cause was remanded at 5 :55 p. m. on July 3rd and the injunction order was entered at 6:10 p. m. on July 3rd, after the cause had been remanded. The trial court had jurisdiction.

We conclude that the order of July 3, 1975, granting the mandatory injunction was within the jurisdiction of the court and error has not been shown. We also conclude that the trial court had jurisdiction to consider the contempt proceedings of July 8th.

The record clearly demonstrates that the kennel owners willfully and deliberately violated the injunctive order of the court. The courts and judges have inherent power by due course of law to punish by appropriate fine or imprisonment or otherwise any conduct that in law constitutes an offense against the authority and dignity of a court or a judicial officer in the performance of judicial functions. State ex rel. Buckner v. Culbreath, 147 Fla. 560, 3 So.2d 380 (1941). The sole reason for the incarceration of the kennel owners was their willful failure to comply with the temporary injunctive order of the court. Just as in any other contempt proceedings, the kennel owners carry the keys of their prison in their own pocket. Demetree v. State, 89 So.2d 498 (Fla.1956).

In an effort to renegotiate an existing contract by ignoring an injunctive order of the judiciary, the kennel owners have gravely affected the public interest, the revenue of the State of Florida and the revenue of individual counties. Misunderstandings among parties should be adjusted where possible without litigation, for a fair settlement is preferable to a good law suit. On the other hand, the judicial process is always available in the event the fair settlement is not reached. When the judicial process is involved, all parties are bound by the orders and judgments of the court having jurisdiction until such orders or judgments are reversed or modified by an appellate court. Although the kennel owners may feel justified in their complaints, their course of action in depriving the State and the counties of needed revenue certainly warrants the actions of the trial court. Their business is profitable only by virtue of a State statutory permission to operate dog tracks guided by regulatory measures adopted by the State. It might be said they are “biting the hand that feeds them”.

In summary, we hold that all of the orders entered by the trial court were proper under the circumstances and without error. The writ of habeas corpus is discharged and the petitioners therein are remanded to the custody of respondent, such incarceration to begin on Tuesday, July 22, 1975, at 5:00 p. m.

The orders of the trial court reviewed by interlocutory appeal are affirmed.

All litigation has been carefully considered, and, in view of the public interest involved, the time for filing a petition for rehearing is limited to Wednesday, July 23, 1975, at 5:00 p. m. However, this decision and order shall be effective forthwith and the granting of this privilege of rehearing shall not operate as a stay of any proceedings in this cause.

It is so ordered.

ROBERTS, OVERTON and ENGLAND, JJ., concur.

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

BOYD, Justice

(concurring in part and dissenting in part).

' I concur in that portion of the majority opinion holding that courts should not permit defiance of lawful orders and that the urgent public economic interests involved here require speedy and conclusive action. It is obvious that the racing contract for the Flagler Track has been broken, and I agree that those responsible should be held liable. Determination of liability should be made at an early date, and in the meantime this Court should authorize the Flagler Track to operate with other dogs, if the parties should be unable to reach an agreement suggested by counsel for the owners during argument at this Court, whereby the dogs would run with sufficient proceeds being placed in the registry of the Court until final determination of the rights of the parties thereto shall be made.

I respectfully dissent to that portion of the majority opinion which authorizes specific performance of the racing contracts by the owners, as I feel this constitutes involuntary servitude in conflict with the Thirteenth Amendment to the Constitution of the United States. In expressing this view I recognize that in some instances courts may require specific performance, but the unique nature of the services involved by the owners, handlers and trainers in the instant case is such as to place them under the protection of the Thirteenth Amendment.

ORDER

Petition for Rehearing is denied. Our opinion is not res judicata to the main proceeding of this cause and is without prejudice for the petitioners and appellants to raise in the main proceeding the issues presented herein, including claims for damages for an improperly issued temporary injunction and the enforcement thereof.

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


author: OVERTON, Justice.

text:
    FLORIDA LIMOUSINE SERVICE, INC., Petitioner, v. The FLORIDA PUBLIC SERVICE COMMISSION, Respondent.
    No. 44609.
    Supreme Court of Florida.
    Oct. 16, 1974.

      Gregory A. Presnell, Akerman, Senter-fitt, Eidson & Wharton, Orlando, for petitioner.
    Prentice P. Pruitt and M. Robert Christ, Tallahassee, for respondent.
    Murray H. Dubbin, Dubbin, Schiff, Berkman & Dubbin, Miami, for intervenor.
   OVERTON, Justice.

This petition for writ of certiorari seeks review of an order of the Florida Public Service Commission granting permanent authority to American Sightseeing Tours, Inc., for the transportation of passengers in a closed-door service between McCoy-Orlando Airport in Orange County, Florida, and Walt Disney Theme Park in Orange and Osceola Counties, Florida, by the shortest route on regular schedules and restricted to transportation by vehicles having a minimal capacity of 38 passengers.

Petitioner, Florida Limousine Service, Inc., intervened and protested the application. Said petitioner is a carrier authorized to transport passengers over irregular routes and schedules from McCoy-Orlando Airport in vehicles of 12-passenger capacity or less.

Public hearings were held on the subject application for temporary authority before the Commission and permanent authority before a hearing examiner. The Commission granted the temporary authority, but the hearing examiner thereafter recommended denial of permanent authority. The Commission overruled the hearing examiner and granted the permanent authority, finding:

“The Commission finds that the applicant has presented substantial competent evidence that there exists a need for a scheduled service, that it is qualified to provide that service, and the grant of this authority will not adversely affect the existing transportation in the territory involved and the transportation as a whole throughout the State of Florida.

Evidence before the Commission included, by stipulation, testimony that was before it in the temporary application proceedings. The Commission is not bound by the findings of fact of the hearing examiner, and the power to ultimately decide factual questions remains vested in the Commission. There was conflicting testimony, but the findings of the Commission are supported by competent substantial evidence and it has not departed from the essential requirements of law. Petitioner had a full opportunity to present its evidence in support of denial of the application and was not denied any substantial procedural rights.

Petition for writ of certiorari is denied, and

It is so ordered.

ADKINS, C. J., and BOYD, McCAIN and DEKLE, JJ., concur.

      . Nicholas v. Wainwright, 152 So.2d 458 (Fla.1963); Coast Cities Coaches, Inc. v. Florida Railroad d Public Utilities Commission, 139 So.2d 674 (Fla.1962).

      . Coast Cities Coaches, Inc. v. Florida Railroad d Public Utilities Commission, supra note 1.


author: ENGLAND, Justice. SUNDBERG, Justice

text:
    William R. SLAY, Appellant, v. DEPARTMENT OF REVENUE of the State of Florida, a State Agency, Appellee.
    No. 47534.
    Supreme Court of Florida.
    July 31, 1975.
    Rehearing Denied Sept. 25, 1975.

      M. Stephen Turner of Thompson, Wads-worth & Messer, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Larry Levy, Asst. Atty. Gen., for appellee. ■
    Warren H. Edwards, Bonifay, for Holmes County District School Board, in-tervenor-amicus curiae.
   ENGLAND, Justice.

This matter is before us on petition for constitutional writ, asking us to review an order of the Leon County Circuit Court dismissing appellant’s complaint, and asking us to enjoin the Department of Revenue (“the department”) from interfering with the collection of 1974 real property taxes in Holmes County.

On December 9, 1974, the department disapproved the 1974 real property tax assessment roll for Holmes County on the authority of Section 193.114(6), Fla.Stat. (1973), stating that assessments in the county were not in substantial compliance with the constitutional requirement of just valuation. Appellant, as the property appraiser and a taxpayer of Holmes County, asked the circuit court to declare the department’s disapproval of the tax roll illegal and unconstitutional. The circuit court dismissed his complaint on the ground that the exclusive forum to obtain a review of the department’s action was the Assessment Administration Review Commission established under Section 195.-098(1), Fla.Stat. (1973) (“the Commission”). The circuit court also upheld the constitutionality of the Commission, thereby giving us jurisdiction to review the court’s order.

Holmes County’s tax assessments were first criticized in 1973, when the department warned the county that a failure to correct deficiencies would result in a disapproval of the 1974 tax roll. Forewarned of this consequence, appellant had endeavored to find funds sufficient to correct assessment deficiencies. His efforts were not successful until late 1974, when the county hired a professional reappraiser approved by the department to conduct a massive reappraisal of the Holmes County tax rolls. Reappraisal is now schetluled to be completed in late 1975, and it is estimated that tax notification and review processes will delay the collection of 1974 taxes until at least November 1975.

In his petition here, appellant requests that we authorize immediate real property tax collections in Holmes County on some basis, possibly even the 1974 tax roll disapproved by the department. He further asks that we enjoin the department from interfering with this collection process. A number of collateral issues are raised by the parties which, by reason of the posture of the case before us, we decline to consider. Despite their legal differences, both parties acknowledge the practical and financial difficulties of Holmes County, and both recognize an emergency need to provide some form of relief.

As we view this cause, Holmes County has admitted the invalidity of its 1974 tax assessment roll. By failing to pursue an administrative appeal to the Commission, the County left intact the department’s disapproval. By contracting for a massive reappraisal of properties, the County acknowledged the invalidity of assessments forming the basis of its proposed 1974 roll. In this posture, we do not have before us the range of remedies which would have been available on appeal from a Commission proceeding, had Holmes County pursued one. Nonetheless, we are not powerless to provide Holmes County with the relief which both parties concede it needs. Our courts have inherent equity powers to provide relief if the law does not clearly provide a remedy. The circuit court need not have held that the judiciary lacked jurisdiction to provide some form of relief.

We hold that chapter 195 is inapplicable to this proceeding, but that through chapter 194 the circuit courts are available to provide equitable relief to a county of this state in the face of this financial emergency. The proper venue of this case is Holmes County. Accordingly, this cause is remanded to the Leon County Circuit Court for entry of an order (1) transferring the cause to the Circuit Court for the Fourteenth Judicial Circuit, and (2) directing the latter court to assume jurisdiction of the parties and the cause pursuant to Part II of Chapter 194. We direct that court, following transfer, to conduct appropriate proceedings to provide Holmes County with such equitable relief as the court deems necessary, including, in the court’s discretion, the grant of authority to issue tentative 1974 real property tax notices and to collect tentative 1974 real property taxes on the basis of the existing but invalid 1974 tax roll. The court shall retain and exercise its jurisdiction, however, to protect the rights of all taxpayers of Holmes County, including those who owned property on January 1, 1974 and any subsequent purchasers, transferees of owners.

The order of the Leon County Circuit Court granting the department’s motion to dismiss appellant’s complaint is reversed, and the court is directed to proceed expeditiously with the mandate of this Court.

The time for filing a petition for rehearing is limited to Friday, August 15, 1975, at 5:00 p.m. However, this decision and order shall he effective forthwith and the granting of this privilege of rehearing shall not operate as a stay of any proceedings in this cause.

It is so ordered.

ADKINS, C. J., and BOYD and OVER-TON, JJ., concur.

SUNDBERG, J., concurs with an opinion.

SUNDBERG, Justice

(concurring).

I concur in the result reached by the majority herein, but wish to make clear that such concurrence is predicated on the peculiar facts presented in this case in that I do not wish our result to be interpreted as authorizing the circumvention of the requirements of Section 195.098, Florida Statutes. As I view the posture of the proceedings before this Court the action of the Department of Revenue in disapproving the 1974 real property tax assessment role for Holmes County is not in issue. The appellant, for all intents and purposes, has conceded the defect in the 1974 tax role and is in the process of securing a reappraisal of real property values in Holmes County for purposes of preparing a valid tax role for that year. Consequently, there is no meritorious basis for a review proceeding before the Assessment Administration Review Commission.

There is, however, the practical problem of collecting real property taxes in Holmes County for the year 1974 in order to provide the revenues necessary to fund continued performance of County functions, including school functions. Under such circumstances and assuming that the appellant has exerted a good faith effort to secure a reappraisal at the earliest practicable date, he is entitled to seek equitable relief from the circuit court under the provisions of Part II of Chapter 194, Florida Statutes— not to test the validity of the 1974 tax role, but to fashion a method for collecting real property taxes in the County on some equitable interim basis pending completion of the reappraisal now in progress, provided, of course, that appellant demonstrates to the circuit court that he has acted in good faith and with due diligence to secure the reappraisal necessary to formulate a valid 1974 real property tax assessment role.

      . Fla.Const. art. VII, § 4 (1971).

      . The office which appellant occupies is constitutionally created. Fla.Const. art. VIII, § 1(d) (1968), amended by H.J.R. 1907, adopted November 5, 1974 and effective January 1, 1975. The position was formerly denominated “tax assessor”.

      . Fla.Const. art. V, § 3(b)(1) (1972). Following initial disapproval of the 1974 tax roll, Holmes County had timely appealed' the department’s ruling to the Commission. On the date set for hearing, however, the county voluntarily withdrew the appeal.

      . The tax collection process for 1975 real property taxes will occur almost simultaneously with the collection of 1974 taxes. Appellant poses the hardship to Holmes County taxpayers as an additional reason for immediate temporary relief.

      . Appellant asks that we declare the Commission to be unconstitutional, in that its role constitutes an usurpation of the functions of the judicial branch of government. As there is no act of the Commission before us, there is no occasion to consider this question. Appellant also asks that we invalidate the department’s disapproval of the tax roll, as an infringement by the executive branch on the functions of a constitutional officer. By failing to pursue an appeal to the Commission, the action of which would have been reviewable here, appellant has failed to exhaust an administrative remedy described in the law as the exclusive method for reviewing departmental disapproval. Finally, the department asks that we dismiss the petition for lack of standing. The standing problem was cured between the filing of appellant’s appeal and oral argument by appearance of the Holmes County School Board.

      . Appellant could have preserved his constitutional challenge to the authority of the Commission in the event of an adverse determination in that review proceeding, and brought the challenge here on appeal “as a matter of right”. Section 195.098(3), Fla. Stat. (1973).

      . Section 195.098(3) (a)-(f), Fla.Stat. (1973).

      . Farrington v. Flood, 40 So.2d 462 (Fla. 1949). See also Fla.Const. art. I, § 21 (1968). The relief granted under the circumstances of this case is not generally available as a substitute for the normal processes of tax collection or as a means to circumvent departmental disapproval. We are satisfied that, in this case, Holmes County is proceeding in good faith to develop a valid tax roll, and that this proceeding was not instituted as an “end run” around the department’s disapproval. Equitable relief is available only where the applicant has “clean hands”.

      . The circuit court held that the exception in Section 195.098(1), Fla.Stat. (1973), effectively barred the relief appellant requested. That was a correct analysis of Count I of appellant’s complaint. Under Count IX, however, the court was requested to authorize interim tax bills, and such other equitable relief as was necessary to eliminate financial hardship. The circuit court has jurisdiction as to Count II under the main provision of Section 195.098(1), and under Sections 194.171 and 194.181, Fla.Stat. (1973). We do not fault the circuit court, however, for reluctance to assume broad equitable powers. There is undoubtedly some truth in the court’s observation in the colloquy which followed counsel’s suggestion that similar equitable relief could be fashioned below:
      “MR. MESSER: ... I think the Supreme Court can [send out supplemental tax bills if the initial roll is too low], but if the Supreme Court can do it, Judge Willis, this court could do it.
      THE COURT: Not necessarily. They can get away with a lot of things I can’t.”

      . Section 194.171(1), Fla.Stat. (1973).

      . Fla.R.Civ.Proc. 1.060(b); Section 47.122, FPla.Stat. (1973).


author: ROBERTS, Justice.

text:
    STATE of Florida, Petitioner, v. Anthony Frank NITTOLO et al., Respondents.
    No. 46642.
    Supreme Court of Florida.
    July 30, 1975.
    Rehcarings Denied Oct. 1, 1975.
    Robert L. Shevin, Atty. Gen., C. Marie Bernard, Asst. Atty. Gen., and John Scar-ola, Asst. State’s Atty., for petitioner.
    Donald P. Kohl and Richard W. Springer of Kohl, Springer, Springer and Vas-sallo, Charles W. Musgrove, West Palm Beach, Richard L. Jorandby, Public Defender, Bruce Zeidel and Maureen L. McGill, Asst. Public Defenders, for respondents.
   ROBERTS, Justice.

This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, Fourth District, in State of Florida v. Nittolo, Hover and McKinnon, 303 So.2d 690 (Fla.App., 1974), which conflicts with State v. Gustafson, 258 So.2d 1 (Fla.1972), affirmed 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), and State v. Jackson, 240 So.2d 88 (Fla.App. 3, 1970). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution (1973).

Respondents were charged by information with possession of marijuana in excess of five grams. They moved to suppress the evidence to be used in this prosecution on the grounds that the search resulting in discovery of the evidence was pretextual, that the defendants were stopped on the pretext of a traffic violation in order to permit a search for evidence of an unrelated offense, and that the search and seizure was not incidental to a valid arrest. The motion to suppress the quantity of marijuana found in a cellophane bag that the arresting officer had seen thrown out the passenger side of the vehicle in which defendants were occupants, was granted by the trial court based upon the trial court’s determination that the fruit of the poisonous tree doctrine was applicable because of illegal activity by police prior to contraband being thrown out the window, and the District Court affirmed without opinion with Judge Mager dissenting with opinion.

The factual basis relative to the arrest, search and seizure is as follows. In the instant situation, a police officer received word from his dispatcher about five o’clock in the morning to be on the lookout for a vehicle which was suspected of containing , illegal narcotics or drugs. Apparently, a description of the vehicle was furnished to the police officer who was advised merely to observe the vehicle if located. Ultimately the police officer in question saw a vehicle fitting the description and followed it for a few blocks until it made a right turn on red at an intersection marked “No Right Turn on Red.” After turning on his floodlights to illuminate the vehicle and his flashing blue light and while the cars were still moving, the officer observed something thrown from the passenger side of defendant’s vehicle. The police officer stopped his vehicle to retrieve the object which turned out to be a cellophane bag containing marijuana; in the meantime, a fellow officer stopped the defendant’s vehicle. The police officer who was originally in pursuit arrested the defendants after retrieving the substance and determining the same to be marijuana.

We agree with petitioner that the District Court erred in affirming the trial court’s order suppressing the marijuana as illegally obtained on a pretextual traffic stop and would adopt the able dissenting opinion of Judge Mager, as follows:

“The evidence suppressed was a quantity of marijuana found in a cellophane bag that the arresting officer had seen thrown out the passenger side of the vehicle in which defendants were occupants. The order of suppression was based upon the trial court’s determination that the ‘fruit of the poisonous tree doctrine’ was applicable because of the ‘illegal’ activity by the police prior to the contraband being thrown out the window.

“The courts have allowed the seizure of evidence ‘voluntarily abandoned’ where no improper or unlawful act was committed by the law enforcement officers prior to such abandonment. State v. Jackson, Fla. App.1970, 240 So.2d 88; Fletcher v. Wainwright, 399 F.2d 62 (5 Cir. 1968). For example, in Fletcher, officers (without an arrest warrant, search warrant, or probable cause to arrest) while investigating a jewel theft, kicked in a hotel door to gain admittance causing one of the occupants to throw stolen jewelry out the window during the incident. The Fifth Circuit in Fletcher held, in part, that ‘since the initial entry was improper and the items were thrown out the window as a direct result of that illegality, the police were not entitled to the fruits and the admission of the jewelry in evidence . . .’. But see State v. Jackson, supra.

“I am unable to find any similarity between the facts and the conduct of the officers in the case in question and those involved in the Fletcher case.

* * * * *

“The conduct on the part of the police which the trial court found to be ‘illegal’ was ‘his (the police officer’s) effort to stop the vehicle upon a pretext’. It is difficult to understand how a ‘pretextual stopping’ occurred when the facts clearly demonstrate that the stopping did not take place until after the item thrown was discarded through the window of defendant’s vehicle, picked up and determined to be marijuana. The incident never reached the stage of a pretextual arrest so as to necessitate a concern for the propriety of a search. Perhaps some argument might have been made that had the police officer stopped the vehicle for a minor traffic violation, i. e., turning right where prohibited, it would have been improper to perform a general search of the person and vehicle. But see State v. Gustafson, Fla.1972, 258 So.2d 1, aff’d Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). We need not indulge in such hypotheticals or speculative reasoning. The police officer was where he should have been, doing that which he was trained to do; and the mere fact that the defendants panicked and discarded what later turned out to be contraband ought not to give rise to an after-the-fact contention that the officer was going to stop the vehicle ‘as a pretext for a warrantless search’. Suppose the arresting officer did intend to secure evidence of a more serious crime when he attempted to stop the defendant’s vehicle for a minor traffic violation. The fact is the so called pretextual stopping never occurred in the instant case. Moreover, what difference should it make as to the motive of the arresting officer; instead, what ought to be examined is ‘the conduct of the accused’ giving rise to the ultimate detention and search. State v. Holmes, Fla.App.1971, 256 So.2d 32.

“It seems to me to suppress the evidence under the instant circumstances requires us to strain our Constitution ‘through a filament of unrealistic exactitude’. See Mattier v. State, Fourth District Court of Appeal, 301 So.2d 105. What the state and federal Constitutions forbid is not all searches and seizures but only unreasonable searches and seizures; the Constitution does not forbid the application of common sense in the detection of crime and the apprehension of criminals. State v. Holmes, supra. As I indicated in Mattier v. State, supra, ‘there is no war between the Constitution and common sense.’

“. . . The conduct preceding the stopping of defendant’s vehicle and their ultimate arrest was neither illegal nor improper so as to necessitate the application of the so called ‘fruit of the poisonous tree doctrine’. See State v. Jackson, supra.” Cf. Mitchell v. State, 60 So.2d 726 (Fla.1952).

Accordingly, the decision of the District Court is quashed and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

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


text:
    STATE of Florida, Appellant, v. Robert Louis BEASLEY, Appellee.
    No. 44929.
    Supreme Court of Florida.
    July 30, 1975.
    Rehearing Denied Oct. 3, 1975.

      Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellant.
    Phillip A. Hubbart, Public Defender, and Roy S. Wood, Jr., Asst. Public Defender, for appellee.
   OVERTON, Justice.

The constitutionality of this state’s riot statute, Section 870.01(2), Florida Statutes (1973), is the issue in this cause. The ap-pellee was charged by information with the offense of riot in that he, on February 14, 1973, “did incite or encourage a riot, in violation of 870.01(2), Florida Statutes.” No further specifics were set forth in the information.

The appellee-defendant filed a motion to dismiss the information. The trial judge, in an extensive order, directly held the statute facially unconstitutional. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

We reverse the trial court and hold the statute is constitutional upon our authoritative, limiting construction. We affirm, however, the order dismissing the information on the grounds that it contains insufficient allegations under Rules of Criminal Procedure 3.140(b), (d)(1), to establish the elements of this offense.

We have a responsibility to avoid a holding of unconstitutionality if a fair construction of the statute can be made within constitutional limits. The United States Supreme Court recognized this restrictive construction doctrine in Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965). The Fourth Circuit Court of Appeals adopted this doctrine in United States v. Cassiagnol, 420 F.2d 868 (4th Cir. 1970), cert. den. 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654. The Fifth Circuit Court of Appeals acknowledged the restrictive constitutional construction doctrine in Wiegand v. Seaver, 504 F.2d 303 (5th Cir. 1974). In that case the court struck down our disorderly conduct statute because we had not authoritatively and restrictively construed the statute’s application so that it applied solely to that speech which the state could constitutionally regulate. We previously applied this restrictive construction doctrine in State v. Ecker, 311 So.2d 104 (Fla.1975).

The subject statute, Section 870.01(2), Florida Statutes (1973), reads as follows:

“All persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”

The term “riot” is not defined in the statute and, therefore, the common law definition must be applied. Fields v. State, 85 So.2d 609 (Fla.1956); Smith v. State, 80 Fla. 315, 85 So. 911; See 77 C.J.S. Riot § 1 a, pp. 421-422. The term “riot” at common law is defined as a tumultuous disturbance of the peace by three or more persons, assembled and acting with a common intent, either in executing a lawful private enterprise in a violent and turbulent manner, to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner. 1 Hawkins on Pleas of the Crown 513 (8th Ed. 1824) ; Ballantine’s Law Dictionary 1121 (3d Ed. 1969); Black’s Law Dictionary 1490 (4th Ed. 1968); Salem Manufacturing Company v. First American Fire Insurance Company, 111 F.2d 797 (9th Cir. 1940).

When considering the offense of inciting to riot, the words uttered by such person or the act done by him must be such as to support a finding that they were said or done with intent to provoke a riot. In the light of all the circumstances, the language used must clearly intend to incite a breach of the peace. Commonwealth v. Egan, 113 Pa.Super. 375, 173 A. 764 (1934). We recognize that, our statute may not be used to interfere with an individual’s right to free speech. See Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). For our statute to be constitutional, the words used must be such that they advocate violence and tend to incite an immediate breach of the peace.

Appellee contends that the term “riot” as used at common law is so vague that a citizen of common intelligence must guess at its meaning. We disagree. We believe that citizens understand the term “riot” to mean a group acting defiantly and unlawfully in a violent manner. In fact, the term probably has a better common understanding by a citizen than the term “disorderly conduct” or “loitering” as they have been used and upheld by federal courts in Shuttlesworth v. Birmingham, supra, and United States v. Cassiagnol, supra.

We hold Section 870.01(2), Florida Statutes (1973), establishing the criminal offense of riot and inciting and encouraging a riot, is constitutional subject to the following restrictive limitations. The offense of riot is as it is defined at common law, and each of the common law elements of the offense must be established by the circumstances of the incident. Specifically, the charging document must articulate facts which establish that three or more persons acted with a common intent to mutually assist each other in a violent manner to the terror of the people and a breach of the peace.

With reference to the offense of inciting or encouraging a riot, the charging document must establish circumstances justifying a clear and present danger of a riot in accordance with its elements as heretofore set out and that the language used by the defendant tended to incite the persons assembled to an immediate breach of the peace. Conduct which involves a clear and present danger of force or violence is not constitutionally protected even though it is intertwined with protected speech and conduct. It is no abridgment of free speech or assembly to make- criminal the promoting, encouraging, and aiding of an assembly, the purpose of which is to wreak violence. Cole v. Arkansas, 338 U.S. 345, 70 S.Ct. 172, 94 L.Ed. 155 (1949).

The legislature could adopt a statute which expressly defines the offense of riot, such as is contained in the federal statute, 18 U.S.C. pp. 257-260, §§ 2101, 2102. Any statutory definition, however, must include the element that the prohibited conduct encourages or constitutes a breach of the peace. Such a statute can be more, encompassing than the common law definition of riot. A redrafting of our statute to include a definition is, however, not constitutionally required.

The circumstances in the present case may or may not justify a charge for inciting a riot. The facts are not sufficiently before us. The information as drawn is clearly inadequate. See Rules of Criminal Procedure 3.140(b) and 3.-140(d)(1), and Florida Criminal Rules and Practice at 53 (The Florida Bar CLE 1974); Kittleson v. State, 152 Fla. 242, 9 So.2d 807 (1942); Rosin v. Anderson, 155 Fla. 673, 21 So.2d 143 (1945); Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962).

We reverse the holding of the trial judge that the statute is facially unconstitutional. We affirm the dismissal of the information on the grounds of inadequate allegations, without prejudice to the State to file an amended information. This cause is remanded for proceedings not inconsistent herewith.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD and ENGLAND, JJ., concur.