author: CHARLES CARROLL, Associate Judge.

text:
    BURLEIGH HOUSE CONDOMINIUM, INC., a Florida Non-Profit Corporation, Appellant, v. Herbert BUCHWALD, Individually and as Trustee, Arlene Buchwald, Elliott Harris and Minerva Millis, Appellees.
    No. 78-1136.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Rehearing Denied April 18, 1979.

      Joseph S. Paglino, Miami, for appellant.
    Steel, Hector & Davis and Darrey A. Davis, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

In this action a summary judgment was entered for the defendants, on the grounds that the cause of action presented by the complaint was barred by the statute of limitations and was barred by estoppel by judgment and by res judicata. The plaintiff appealed. We hold entry of summary judgment for defendants was error, and reverse.

On April 15,1977, Burleigh House Condominium, Inc., a condominium association, on behalf of itself and of its members as a class filed a complaint against Herbert Buchwald, individually and as trustee, Arlene Buchwald his wife, Elliott Harris and Minerva Millis. Therein it was alleged that Burleigh House, Inc., of which Buchwald was and is the president, developed the condominium, formed the plaintiff condominium association corporation, and while the developer owned the condominium association caused the latter to enter into a 99-year lease of community recreational facilities; that the lessors were Buchwald as trustee (under a declaration of trust of which defendants Harris and Millis are beneficiaries) and Buchwald’s wife, Arlene Buchwald, who joined in execution of the lease. Under the lease, which contained a rent escalation clause, the rental was to be paid by the future owners of the condominium units, with the lessors having a lien on condominium units to secure the rent payments. In addition, the lease required the unit owners to pay the taxes, insurance premiums, utility charges, repairs and maintenance on the leased premises.

The complaint alleged the lease was unconscionable in that the rental provided for thereby was unreasonable and excessive, and that by dealing with themselves in the making of such lease the defendants breached their fiduciary relationship to the condominium unit purchasers, arid by unjust enrichment obtained exorbitant personal gain. The complaint sought damages for such allegedly improper profits of lessors and sought appropriate relief in equity with respect to such lease on the ground of un-conscionability thereof.

In Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.1977), decided on March 31, 1977, prior to the date of the filing of this action, the Supreme Court of Florida held that in circumstances such as those alleged here a condominium association and condominium unit owners had a cause of action to recover such damages and for such “relief as equity dictates.”

Thus, by Avila there was recognized and held to exist a cause of action which did not exist before that decision. Ten years prior thereto it had been held that suet a cause of action did not exist, in Fountainview Association, Inc. # 4 v. Bell, 203 So.2d 657 (Fla. 3d DCA 1967). In that case this court affirmed an order by which a complaint of a condominium association seeking relief similar to that sought in the present case had been dismissed on the ground that it did not state a cause of action. On consideration of that decision on petition for cer-tiorari, following the District Court’s certification of the decision as being one of great public interest, the Supreme Court discharged the writ of certiorari, upon holding that “the District Court of Appeal correctly decided the issue before it.” See Fountainview Association, Inc. # 4 v. Bell, 214 So.2d 609 (Fla.1968).

Likewise, it had been held that individual condominium unit owners had no such cause of action, in Wechsler v. Goldman, 214 So.2d 741 (Fla. 3d DCA 1968).

The non-existence of such a cause of action, as so held in Fountainview in 1967 was recognized as the law in subsequent decisions prior to Avila, by the Supreme Court in Point East Management Corp. v. Point East One Condominium Corp., 282 So.2d 628 (Fla.1973), cert. den. 417 U.S. 921, 94 S.Ct. 1421, 39 L.Ed.2d 476 (1974), and by the District Court of Appeal in Wechsler v. Goldman, supra, Plaza del Prado Condominium Association, Inc. v. GAC Properties, Inc., 295 So.2d 718 (Fla. 3d DCA 1974); Commodore Plaza at Century 21 Condominium Association, Inc. v. Saul J. Morgan Enterprises, Inc., 301 So.2d 783 (Fla. 3d DCA 1974).

In the instant case, by denying defendants’ motion to dismiss, the trial court recognized that the complaint stated a cause of action. The holding of the trial court that such cause of action presented by the complaint, for damages and for relief against the lease contract on the ground of unconscionability, was barred by the (four-year) statute of limitations, was incorrect. The lease was executed in December of 1969, and the condominium units were sold by 1970 or 1971. The complaint was filed in April of 1977. However, the cause of action declared upon in this case did not accrue until the time of the Avila decision in March of 1977, and the date of that decision marked the commencement of the running of the statute of limitations. Therefore, this action, commenced within a month thereafter, was timely filed.

“A cause of action cannot be said to have accrued, within the meaning of that statute [of limitations], until an action can be instituted thereon.” Berger v. Jackson, 156 Fla. 251, 23 So.2d 265 (1945).

In City of Miami Beach v. Brooks, 70 So.2d 306, 309 (Fla.1954), with reference to the time of commencement of the running of a statute of limitations, the Supreme Court said “the statute attaches when there has been notice of an invasion of the legal right of the plaintiff or he has been put on notice of his right to a cause of action ” (emphasis supplied); and further stated “so that the statute must be held to attach when the plaintiff was first put upon notice or had reason to believe that her right of action had accrued.”

This principle of law that the time of commencement of the running of a statute of limitations may not antedate the time of the accrual of the cause of action, was applied and explained, in a situation similar to that which is involved here, in United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1358 (5th Cir. 1972). That case concerned an action by an owner of a motor vehicle to obtain the return of his vehicle which had been seized and forfeited by the government, under certain circumstances. For a period after such seizure and forfeiture of the vehicle which was longer than the applicable statute of limitations, the state of the law was such that the right of an owner to require restitution of a vehicle so seized and forfeited did not exist. However, two decisions rendered by the Supreme Court of the United States in 1968 established the right of an owner to obtain return of a vehicle which had been seized under such circumstances. In the action filed thereafter by the owner to regain the vehicle, the contention of the government that the action was barred by the statute of limitations was rejected on the ground that his cause of action had not accrued until the time of said 1968 decisions which recognized the existence of the cause of action that could not have been successfully asserted previously. In explaining that ruling, the court said:

“The period of limitations does not always begin on the date of the wrong. See Cooper v. United States, 7th Cir. 1971, 442 F.2d 908. No cause of action generally accrues until the plaintiff has a right to enforce his cause. Hodge v. Service Machine Company, 6th Cir. 1971, 438 F.2d 347; Mack Trucks, Incorporated v. Bendix-Westinghouse Automotive Air Brake Company, 3d Cir. 1966, 372 F.2d 18; Missouri Pacific Railroad Company v. Austin, 5th Cir. 1961, 292 F.2d 415; Versluis v. Town of Haskell, Oklahoma, 10th Cir. 1946, 154 F.2d 935; Cannon v. United States, 1956, 146 F.Supp. 827, 137 Ct.Cl. 104; Levine v. United States, 1956, 137 F.Supp. 955, 133 Ct.Cl. 774. The right to sue is hollow indeed until the right to succeed accompanies. Patently, appellant in the instant case had no reasonable probability of successfully prosecuting his claim against the government prior to the enunciation of the new Marchetti-Grosso rule on January 29,1968. We realize that mere ignorance of one’s rights will not toll the limitations period. Howard v. Sun Oil Company, 5th Cir. 1969, 404 F.2d 596; New York and Cuba Mail Steamship Company v. United States, 1959, 172 F.Supp. 684, 145 Ct.Cl. 652; Adams v. Albany, S.D.Cal.1948, 80 F.Supp. 876. This is not, however, a case in which a plaintiff is ignorant of his rights, but rather a case of a plaintiff without a right.”

Also, that principal was applied in Neely v. United States, 546 F.2d 1059 (3rd Cir. 1976). Dealing with a situation similar to that in the Red Chevrolet case relating to the statute of limitations the court said:

“ * * * To require clairvoyance in predicting new jurisprudential furrows plowed by the Supreme Court, under these circumstances, would be to impose an unconscionable prerequisite to asserting a timely claim. ,
“Accordingly, we hold that rights accruing under Marchetti and Grosso were inherently unknowable prior to January 29, 1968, when those cases were decided. The statute of limitations on such claims was, therefore, suspended and did not begin to run until that date. United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353, 1358 (5th Cir. 1972).”

We find to be without merit the contention of th¿ appellees that the action should be considered to be barred by limitation on the theory that the plaintiff could have filed an action seeking such relief prior to Avila, and failed to do so within the limitation period. In the instant case, prior to the decision of the Supreme Court in Avila, the existence of such cause of action was inherently unknowable, and in fact had been held not to exist. As stated in the above cited federal cases, until there is a right to succeed, a right to sue is hollow. And it has been said that a right without a remedy is a ghost in the law and difficult to grasp. The simple answer to the contention is that during the decade prior to Avila it was the law that a complaint purporting to present such claims would not state a cause of action.

Accordingly, we hold that the cause of action for the relief sought by the plaintiffs in this case accrued on March 31, 1977 by virtue of the Avila decision, and that such cause of action did not exist prior thereto. Therefore, this action which was filed on April 15,1977 was not barred by the statute of limitations.

We agree with the contention of the appellant that the court erred in holding that the plaintiff’s action was barred by estoppel by judgment or by res judicata. The trial court’s holding that this action was so barred was based on three prior cases which the court’s order referred to as those cited in the defendant’s motion for summary judgment.

Those prior cases and this case did not share the same cause of action, and the issues presented by this complaint were not tried and determined in said prior actions. The cause of action presented here was not pleaded and determined in the prior actions, and since the cause of action presented here did not exist at the time of the said prior actions, it was not a matter which properly should or could have been included in such prior actions.

For a prior judgment to be res judi-cata of a subsequent action, as stated by the Supreme Court in Virginia Carolina Chemical Co. v. Fisher, 58 Fla. 377, 50 So. 504, 507 (1909), “there must be (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality in the persons for or against whom the claim is made.” That statement of requirements for res judicata has been adhered to consistently, and restated in subsequent decisions too numerous to justify their citation here (for example, see cases cited in Matthews v. Matthews, 133 So.2d 91 (Fla. 2d DCA 1961) at 94, n.3).

Regarding the above listed requirements, the appellant contended that those as to identity of cause of action and identity of parties were not met. We agree thereto as to absence of identity of cause of action, but feel that identity of parties sufficiently existed. The parties were not identical. However, the essential defendants were the same, and as to plaintiffs, the condominium unit owners were the real parties in interest whether an action brought on their behalf was filed by the condominium association or by some unit owners.

An added requisite for a prior action to operate as res judicata to bar a subsequent action is that the former must have been disposed of by a judgment rendered on the merits. Kent v. Sutker, 40 So.2d 145 (Fla.1949); Allbright v: Hanft, 333 So.2d 112 (Fla. 2d DCA 1976); Cabinet Craft v. A. G. Spanos Enterprises, 348 So.2d 920, 922 (Fla. 2d DCA 1977). Pursuant to that requirement, a prior action that is terminated on a ground that is technical, where the merits are not brought into question and decided, will not be res judicata of the merits. Thus, in Cabinet Craft v. A. G. Spanos Enterprises, supra, the court said:

“Each of these four conditions existed in the instant case. However, as a general rule, a judgment entered upon any grounds which do not involve the merits of the action may not be used as the basis for the application of res judicata. Kent v. Sutker, 40 So.2d 145 (Fla.1949). Thus, the court in Kent said:
“ ‘. . . Under this rule, an adjudication on grounds purely technical, where the merits cannot come into question, is limited to the point actually decided, and does not preclude the maintenance of a subsequent action brought in a way to avoid the objection which proved fatal in the first action * * * j yy

Tested by the foregoing rules, none of the prior cases relied on by the trial court were res judicata of this action. In the prior case of Abbott v. Burleigh House, Inc., 34 Fla.Supp. 209 (Fla. 11th Cir. 1970), this cause of action was not pleaded, tried or determined. In the prior case of Burleigh House Condominium, Inc. v. Buchwald, as Trustee (Circuit Court No. 73-27193), the action was disposed of by a settlement while on appeal, and the order of the trial court (prior to the appeal and settlement) was one which disposed of the declaratory judgment feature of that action on a technical ground and not on the merits, by holding it was barred by res judicata. The complaint as amended in that case showed the declaratory judgment was sought on questions other than those involved in the present case. The third case relied on by the trial court (Burleigh House Condominium, Inc. v. Buchwald, as Trustee) likewise was not determined by a judgment on the merits, because ultimately it was dismissed on a purely technical ground, for want of capacity of the plaintiff to sue.

We have not overlooked the rule, referred to in Gordon v. Gordon, 59 So.2d 40, 44 (Fla.1952), that under res judicata a final judgment which bars a subsequent suit between the same parties upon the same cause of action also “is conclusive as to all matters germane thereto that were or could have been raised.” In view of that rule, it may be argued that although the cause of action in this case was not the same as the causes of action in the prior cases involved, that the latter should be regarded as res judicata on the ground that the cause of action of the present case properly could have been asserted by the plaintiffs in such prior actions. We must reject that argument as applied to this case. It would have no application to the above discussed second and third of the prior cases, for the reason that in neither of them was there a final judgment on the merits of the matters there involved. As to the other, the Abbott case, it would be unreasonable to assume that this cause of action, established by Avila in 1977, was one that properly could or should have been asserted in Abbott in 1970 after holdings by the District Court of Appeal in 1967 and the Supreme Court in 1968 that such a claim did not constitute a cause of action. The reasons excusing failure to assert such a claim at a time when there was “no reasonable probability of successfully prosecuting the claim”, in dealing with the statute of limitations, have equal application in regard to this feature relating to res judicata.

Estoppel by judgment differs from res judicata in that while there must be identity of the persons or parties to the actions there need not be identity of the cause of action. Under the doctrine of es-toppel by judgment a prior action will operate to bar in a second action those facts and issues which were tried and determined in the prior action. See Gordon v. Gordon, supra. The brute fact is that the issues presented by the cause of action in this case were not tried and determined in any of the above described prior actions.

For the reason stated, the summary judgment entered in favor of the defendants is reversed, and the cause is remanded to the circuit court for further proceedings consistent with the principles announced in Avila, 347 So.2d 599, and Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen, supra, 350 So.2d 502, at 507.

Reversed and remanded.

      . Thereafter, on authority of Avila, in September of 1977 in the case of Commodore Plaza at Century 21 Condominium Association, Inc. v. Cohen, 350 So.2d 502 (Fla. 3d DCA 1977), on considering an appeal from an order dismissing a counterclaim of a condominium association against such a lessor for relief from such a lease on the ground of unconscionability of the lease contract and its excessive rental, the appellate court, upon noting that the dismissal order had been entered prior to the decision in Avila, remanded the matter to the trial court for reconsideration, stating that pursuant to the principles announced in Avila the court could modify the rent, or alter the lease as to the terms found to be unconscionable, by rent adjustment and requiring return of that portion of the rent already paid which represented an unconscionable amount of rent, and that the trial court should do equity between the parties.

      . In Wechsler v. Goldman, 214 So.2d at 744, the court said:
      “ * * * In making that lease the promoters, in effect, were dealing with themselves. It is disclosed that the rental which they thus Imposed on the condominium associations for use of the represented recreational area was exorbitant, amounting to more per year than the assessed value of the property leased; and that thereby the promoters acquired for themselves an excessive profit at the ultimate expense of the purchaser-members of the condominium associations which they had created and sold under Chapter 711, Fla.Stat., F.S.A., the Condominium Act (Laws of 1963, ch. 63-35).
      ******
      “It is not without some reluctance that we hold the plaintiff condominium associations do not have a cause for relief against the claimed exorbitant lease rental obligation imposed on them while both lessor and lessee were owned or controlled by the promoters. However, we affirm the decree on the authority of Fountainview Association, Inc., No. 4 v. Bell, Fla.App. 1967, 203 So.2d 657, which, on review by the Supreme Court of Florida, recently was held to have been correctly decided.”

      . In the order granting summary judgment the court held that the plaintiffs action was barred by the statute of limitations. In a subsequent order, entered on denying plaintiffs motion for rehearing, the court added the grounds that the action was barred by estoppel by judgment and by res judicata.

      . One of the three prior cases listed in the motion for summary judgment, which the court relied upon, was a circuit court decision, Abbott v. Burleigh House, Inc., decided in 1970. The judgment in that case, as reported in 34 Fla.Supp. 209, shows in detail the claims or causes of action presented there. That case involved three actions that had been consolidated, filed by prospective purchasers of condominium units, who had contracted for their purchases, against Burleigh House Inc. [the developer] and Burleigh House Condominium Inc. [the condominium association, which at that time still was owned and controlled by the developer] and against Herbert Buchwald, as trustee [the record title owner of the leased community facilities premises] and Burleigh House Management Corporation [which held a contract to manage the condominium]. One of those consolidated cases was No. 70-14179. It did not contain any cause of action seeking relief against the recreational lease on the ground of unconscionability, or otherwise. It challenged the management contract as not being in accord with representations, and sought to have it revised to conform to alleged representations, and contained a claim that under the condominium statute it was the plaintiffs rather than the defendants who should make the management contract. Additionally therein plaintiffs listed a number of respects in which they alleged the construction of the building and its facilities were deficient and sought to have them corrected. By Case No. 70-14180 the plaintiffs alleged the apartment units did not meet the planned sizes, etc., as per the brochure, and sought specific performance to make the same conform to the brochure. That case also alleged that it had been represented to plaintiffs that the condominium association would be the owner of the community facility or recreational premises, and sought a judgment so holding. The third of those consolidated cases, No. 70-16198, contained a number of counts by which the plaintiffs contended that it had been represented to them that the owners of the units would own the recreational property described in the community facilities lease, and that it would be inequitable for the developers to own the same in view of such alleged representations to the contrary. In that action the court denied the relief sought on those several contentions, all of which were foreign to the cause of action presented in the instant case.
      A second action relied on by the trial court as res judicata of this case was Dade County Circuit Court Case No. 73-27193. There this condominium association sued Buchwald, as trustee. The action was one for declaratory judgment as to the rights of the plaintiff under the recreational lease and as to whether rent was payable for a certain two month period, and in what amount. The questions for which declaratory judgment was sought there were different from the questions presented here as to the lease. The trial court entered two orders. The matter for which declaratory judgment was sought was not tried. No declaratory judgment was entered on the merits thereof. The trial court disposed of the declaratory judgment feature of that case by holding it was barred by res judicata based on the prior Abbott case, the nature of which is discussed above in this footnote. All matters in that second case were settled by agreement between the parties thereto, as shown by a later appeal which was had with reference to the extent of such settlement. Burleigh House Condominium, Inc. v. Buchwald, 328 So.2d 554 (Fla. 3d DCA 1976).
      The third prior case involved was an action by this condominium association against Buchwald and others, filed in the United States District Court, wherein the plaintiff contended that the community facilities lease as made was in violation of federal antitrust laws, and sought damages therefor. That case was not concluded by any judgment on its merits. On an appeal therein the United States Court of Appeals held that the plaintiff did not have standing to bring the action, and remanded the cause with direction to the District Court to dismiss the action. See Burleigh House Condominium, Inc. v. Buchwald, 546 F.2d 57 (5th Cir. 1977).

      . On the effect of a settlement or voluntary dismissal of a prior action as precluding it from operating as res judicata of the matters involved therein, see North Shore Realty Corporation v. Gallaher, 99 So.2d 255 (Fla. 3d DCA 1957); de Cancino v. Eastern Airlines, Inc., 283 So.2d 97 (Fla.1973).


source: Caselaw Access Project

author: MILLS, Acting Chief Judge.

license: Public Domain

text:
    GENERAL DEVELOPMENT CORPORATION, Petitioner, v. The FLORIDA LAND AND WATER ADJUDICATORY COMMISSION, an agency of the State of Florida, the Southwest Florida Regional Planning Council and the Division of State Planning of the Department of Administration, agencies of the State of Florida, and Sarasota County and the Englewood Water Management District, political subdivisions of the State of Florida, and the Englewood Community Organizations, and the City of North Port, Respondents.
    No. BB-69.
    District Court of Appeal of Florida, First District.
    March 9, 1979.
    Rehearing Denied April 23, 1979.

      Parker D. Thomson, Susan W. Diner and Robert T. Wright, Jr. of Paul & Thomson, Miami, for petitioner.
    David Emerson Bruner, Naples, C. Laurence Keesey, Tallahassee, Richard L. Smith, Richard E. Nelson and Leslie Telford of Nelson, Hesse, Cyril, Weber & Smith, Sarasota, Robert A. Dickinson, Englewood, Edward John Walsh, Oakland Park, for respondents.
   MILLS, Acting Chief Judge.

Pursuant to Section 380.07, Florida Statutes (1975), the Division of State Planning (Division) and the Southwest Florida Regional Planning Council (SW Council) appealed to the Florida Land and Water Adjudicatory Commission (Commission) a development order issued by the City of North Port (City) to General Development Corporation (GDC) for the development of Myak-ka Estates, Units 5, 6 and 7. GDC seeks interlocutory review of a “Comprehensive Prehearing Order” entered in that proceeding.

Myakka Estates is an 8,000 acre planned residential community, with related commercial and essential facilities, being developed by GDC in the City of North Port, Sarasota County. Myakka Estates is a Development of Regional Impact (DRI) under Chapter 380.

In May 1974, GDC submitted to the City an application for Development Approval (ADA), which laid out a master plan for the entire Myakka Estates Development. Notice of the ADA was given to the Division and to the Tampa Bay Regional Planning Council (Tampa Bay Council), the regional planning agency at that time for Sarasota County. The Tampa Bay Council reviewed the master plan on the basis that Myakka Estates constituted a single DRI, and recommended that the plan be approved by the City, contingent upon the fulfillment of ten conditions.

On 9 September 1974, after a hearing, the City issued a development order approving the master ADA subject to 18 conditions including all ten recommended by the Council. One of the conditions of the development order reads:

“(q) Applicant shall submit incremental Applications [for] Development Approval on all subsequent Myakka Estates plats; which increments shall be in conformance with the Myakka Estates Master Plan Application for Development Approval approved this date and in compliance with Chapter 380, Florida Statutes.”

The master development order was not appealed by either the Division or Tampa Bay Council, thus, became final. The Division agreed not to appeal the order on the condition that GDC enter into an agreement which would dispose of the Division’s concerns. GDC entered into the agreement on 15 October 1974. The agreement required GDC to submit separate ADAs for nonresidential areas at the time their development was contemplated and required incremental ADAs for the various residential portions of Myakka Estates, according to the agreement, the incremental ADAs were “a condition to development of specific increments of the master residential plan” and “must comply with the 9th of September 1974 Development order.”

On 18 October 1974, GDC submitted to the City the incremental ADA for Units 5, 6 and 7. Copies were furnished to the Division and to the SW Council which was then the regional planning council for Sarasota County. The ADA incorporated without revision major portions of the master ADA. The SW Council recommended that the City not approve the ADA for Units 5, 6 and 7.

On 23, 24, 26 and 27 May 1975, the City held hearings on the ADA for Units 5, 6 and 7. On 26 June the City approved the application and issued a development order subject to certain conditions. The order concluded that the incremental ADA fully complied with the master plan. The order further concluded that the SW Council’s request for denial was directed to the entire Myakka Estates development rather than Units 5, 6 and 7.

In July 1975, the SW Council and the Division appealed the City’s incremental development order. A hearing officer was designated. Sarasota County, Englewood Water District, and Englewood Community Organizations were permitted to intervene.

On 14 November 1975, GDC moved for a preliminary hearing to resolve procedural issues. At the prehearing, GDC presented testimony and argument to demonstrate that the final hearing should be limited to a determination of whether the incremental development order conformed to the master development order.

On 14 January 1976, the hearing officer entered his “Comprehensive Prehearing Order” which is the subject of this review. Basically the order provided that:

(1) The final hearing on the Unit 5, 6 and 7 ADA would be a full evidentiary hearing and not be submitted for appeal on the record because the hearings held by the City did not satisfy the requirements of Chapter 120, in that witnesses did not testify under oath and there was not an adequate opportunity to cross-examine witnesses.
(2) The issue to be determined is whether the ADA meets the standards of Chapter 380, and the scope of inquiry would not be limited by the master development order, the agreement of October 15, 1974, between the Division and GDC, or any “master-incremental” format;
(3) The record created at the hearing would be the sole record;
(4) The hearing would begin by GDC’s presentation of its entire case for approval of the Units 5, 6 and 7 ADA.

GDC contends that there is no need for a full evidentiary hearing under Section 120.-57 since the four-day hearing before the City was neither inadequate nor incomplete. It urges that the appeal before the Commission be determined on the record made below.

Section 380.07, Florida Statutes (1977), permits the owner, developer, regional planning agency or state land planning agency to appeal a development order to the Commission. Section 380.07(3) states:

“Prior to issuing an order, the . Commission shall hold a hearing pursuant to the provisions of Chapter 120. The Commission shall encourage the submission of appeals on the record made below in cases in which the development order was issued after a full and complete hearing before the local government or an agency thereof.”

Although the above quoted subsection states that the Commission “shall encourage the submission of appeals on the record”, it requires the Commission to hold a hearing pursuant to Chapter 120. Chapter 120 contains no particular provision which relates to an appellate review proceeding by an administrative agency. Section 120.57 sets forth the procedures to be used in all proceedings in which the substantial interests of a party are determined, and these procedures should be followed in hearings on appeals to the Commission.

The items which constitute the record in Section 120.57 proceedings are specified in subsections 120.57(l)(b)5, for formal proceedings, and 120.57(2)(b), for informal proceedings. Neither of these subsections specify hearings occurring prior to the commencement of 120.57 proceedings. However, both subsections specify that the record shall include evidence received or considered.

In agency proceedings for a rule or order, evidence that is irrelevant, immaterial, or unduly repetitious is excluded, but all other evidence, if of a type commonly relied upon, is admissible. The evidence may be received in written form and testimony shall be made under oath. Section 120.58(l)(a). A party may conduct cross-examination when testimony is taken or documents are made a part of the record. Section 120.-58(l)(f).

In appropriate cases, where the testimony has been made under oath and the parties have had the right of cross-examination, the testimony and exhibits presented at the hearing before the local government should be admitted into evidence at the 120.57 hearing before the Commission. In cases where the hearing before the local government is full and complete, the record of the local government proceedings might be the only evidence that is necessary.

In the case before us, the testimony given at the hearing before the City was not made under oath and there was not an adequate opportunity for cross-examination. Under these circumstances, the hearing officer did not err in determining that the hearing on appeal from the development order would be a full evidentiary hearing and not submitted “on the record”. In effect, the prehearing order determined that the record of the hearing below would not be admissible as evidence.

We do not find that the hearing officer erred in stating the issue to be determined as whether the ADA for Units 5, 6 and 7 meets the standards of Chapter 380. GDC argues that the Commission cannot ignore the master development order. It does not appear at this point that the Commission has ignored it. One of the conditions of the master development order is that all incremental ADAs must be in conformance with the master ADA and comply with Chapter 380. The prehearing order does not state that the master development order or the agreement between the Division and GDC will be ignored; it states that the scope of inquiry would not be limited by them.

We also do not find any error in the requirement that GDC present its case first since that would facilitate an orderly presentation of evidence.

The prehearing order on review is affirmed.

MELVIN, J., and MASON, ERNEST E., Associate Judge, concur.


author: HENDRY, Judge. SCHWARTZ, Judge

text:
    Harold RATNER and Hilda Ratner, his wife, Appellants, v. MIAMI BEACH FIRST NATIONAL BANK, Rosalyn Housman and Henry L. Housman, Co-Executors of the Estate of Abraham J. Housman, a/k/a Jack Housman, Deceased, Appellees.
    No. 76-1609.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 18, 1979.

      Fleet & Packar and J. Leonard Fleet, Hollywood, for appellants.
    Sidney B. Shapiro, North Miami Beach, for appellees.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

By this appeal we are asked to review the final judgment quieting title in appellees and denying foreclosure to appellants as to a certain piece of real property located in Dade County, Florida.

For the sake of clarity and convenience in gaining an understanding of the legal and equitable significance of the background facts, the transactions involved shall be presented chronologically as follows:

In 1958: Schwartz, the owner of real property hereinafter referred to as Parcel # 1, conveyed by separate deeds a Vs interest to Housman and a Vs interest to Krasner, and Schwartz retained unto himself a Vs interest.
In 1961: Schwartz executed a note secured by a mortgage on his remaining Vs interest in Parcel # 1, said mortgage also included as security his interest in other properties, Parcel # 2 and Parcel # 3; the mortgagees were his sister and brother-in-law, the Ratners.
In 1963: Schwartz conveyed by warranty deed his remaining Vs interest in Parcel # 1 to Housman, who then possessed a % interest in Parcel # 1. The subject deed made no direct mention of the Ratner mortgage of 1961.
In 1968: Schwartz conveyed his interest in Parcel # 3 to the Ratners.
In 1971: Housman, the purchaser of /s interest in Parcel # 1, died, and appel-lees herein were appointed the coexecu-tors of his estate.
In 1972: The Ratners conveyed their interest in Parcel # 3 to Saligman, Trustee, and Hartquist accompanied by a duly executed Release of Mortgage— releasing Parcel # 3 from operation and effect under the terms of the 1961 mortgage between Schwartz and the Ratners. There was no consideration paid by Schwartz to the Ratners for the Release.
In 1974: The executors of the Housman estate filed the action to quiet title as to % interest in Parcel # 1. Appellants counterclaimed to foreclose the mortgage.

After prolonged hearings before the trial court, a final judgment was entered which quieted title to the claimed % interest in Parcel # 1 in the name of the appel-lees/plaintiffs and/or their successors; can-celled the interests of Schwartz and the Ratners in the subject property; awarded damages to the Ratners against Schwartz on the original note of 1961.

The Ratners, mortgagees under the 1961 mortgage, contend on appeal that the trial court committed reversible error in its ruling; appellants assert that they did not lose their right to foreclose the mortgage against Housman, or his successors, as a result of the conveyance of part of the mortgaged land to a third party accompanied by the Release of Mortgage.

We have carefully reviewed the record, which includes inter alia, all pleadings, a copy of the subject mortgage and Release, copies of deeds, transcript of deposition, and conclude that the judgment must be affirmed. Under the facts of this case there are two distinctly separate bases upon which the judgment commands affirmance. Firstly, our Supreme Court long ago determined in Ellis v. Fairbanks, 38 Fla. 257, 21 So. 107 (1897), that where lands are mortgaged to secure a debt and a part of said lands is subsequently sold and conveyed by the mortgagor, the portion unsold is primarily liable under the mortgage; the court further stated that a release subsequently given by the mortgagee to the mortgagor of the part unsold without the assent or agreement of the purchaser, will not prejudice the rights of such purchaser of the part which was sold if the mortgagee gave such release with the knowledge of the rights and equities of the purchaser, and if the part released is sufficient to satisfy the entire debt, the mortgagee cannot resort to the part which has been sold but such release operates as a discharge of the lien to the extent of the value of the land released. The instant case falls within the category of cases dealing with such releases executed by the mortgagee subsequent to the subject conveyance. Here, Abraham J. Housman’s deed was recorded nine years prior to the time that the Ratners executed the Release incident to the conveyance by the Ratners of their interest in Parcel # 3. The recor-dation of the deed by Housman put the appellants on notice or possessed of knowledge of the rights and equities with which Housman was vested. Furthermore, as is clear under the Ellis holding, the Ratners cannot now resort to attempts to foreclose on the land sold to Housman in 1963 since the Release operated as a discharge of the lien to the extent of the value of the land released, and the value of the part released in this case was more than sufficient to satisfy the amount of the original debt.

Secondly, we have considered the doctrine of laches as raised in the trial court by the appellees in the nature of an affirmative defense in the foreclosure action. The subject mortgage and note were signed on June 1, 1961 and reflect a maturity date of December 1, 1961; it was not until 1974 that the mortgagees first attempted to collect on the note, and then only after a quiet title action had been filed in which the mortgagees were named as defendants.

In foreclosure proceedings the court may look to the facts of the particular case to determine if equity may follow the doctrine of laches when the mortgagee has slept on his rights as to work an injustice upon the party against whom relief is being sought. Cone Bros. Const. Co. v. Moore, 141 Fla. 420, 193 So. 288 (1940). In the instant case the facts are clearly ample to take the case out of the general rule and support our conclusion that equity may follow laches rather than the Statute of Limitations. See, Travis v. Mayes, 160 Fla. 375, 36 So.2d 264 (1948).

The judgment appealed is affirmed.

SCHWARTZ, Judge

(dissenting).

The record shows that the 1961 recorded mortgage given by Schwartz on three separate interests in real property secured a note in the principal amount of $21,500.00. By June 24, 1976, when the proceedings below ended, the amount due, with the interest provided in the note, exceeded $60,-000.00. The value of the single parcel which was conveyed to Saligman and which was released from the mortgage in 1972, however, was no more than $23,000.00. Thus, even pursuant to Ellis v. Fairbanks, 38 Fla. 257, 21 So. 107 (1897), under which, as the majority says, “the Release operated as a discharge of the lien to the extent of the value of the land released . . . ,” it is obvious that the appellants may still foreclose on the two unreleased parcels for a substantial portion of the secured debt. See also Jordan v. Sayre, 24 Fla. 1, 3 So. 329 (1888). This is so because the mortgage lien secures not only “the amount of the original debt,” as the majority suggests, but the interest due on the debt as well. Miami Mortgage & Guaranty Co. v. Drawdy, 99 Fla. 1092, 127 So. 323 (1930).

Nor, in my view, does laches bar the appellants’ right to foreclose. There is no suggestion either in the record, the briefs, or the majority opinion that the appellees’ decedent detrimentally relied in any way upon the mortgagees’ delay in asserting their rights in the secured property. It is established that such a resultant injury or prejudice is required to uphold a laches defense. 21 Fla.Jur. Limitations of Actions § 97 pp. 245-247, and cases cited. We have very recently so held in rejecting a claim of laches in the similar factual setting involved in Florance v. Johnson, 366 So.2d 527 (Fla. 3d DCA 1979), a case which I cannot reconcile with the majority opinion. See also Brown v. Hanger, 368 So.2d 63, 65, n.2 (Fla.3d DCA 1979).

I would reverse the judgment under review and remand the cause with directions to proceed below in accordance with the views expressed in this opinion.

      . At the time of institution of suit the statute of limitations was twenty years pursuant to Chapter 95, Florida Statutes; in 1974 it was amended to five (5) years under Section 95.11(2)(c), but did not become effective until January 1, 1975.

      . This amount is in dispute. The deed recited a consideration of $10.00. The $23,000 figure was arrived at merely by a computation involving the documentary tax stamps affixed to the instrument.

      . A personal judgment for $67,899.04 was in fact entered on the note for the Ratners and against Schwartz individually.


author: HENDRY, Judge.

text:
    EMPIRE FIRE AND MARINE INSURANCE COMPANY, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY et al., Appellees.
    Nos. 78-226, 78-227.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 16, 1979.

      Rentz, McClellan & Haggard and L. Edward McClellan, Jr., Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Michael K. McLe-more, Miami, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   HENDRY, Judge.

Empire Fire and Marine Insurance Company appeals from an amended final judgment in favor of the appellee, Transport Indemnity Company on the issue of primary insurance coverage.

The cause arose out of a tractor-trailer/schoolbus/automobile collision at Hialeah, Florida. At the time of the accident the tractor-trailer was being operated under a written trip lease agreement with Altruk Freight Systems, Inc.; Daniel Calhoun, the owner of the tractor-trailer, had leased it to Altruk for the purpose of transporting freight from Missouri to Florida. Under the lease agreement it was provided that (1) Mr. Calhoun was to obtain liability insurance; (2) that Mr. Calhoun was to indemnify Altruk for loss; and (3) that the driver of the tractor-trailer was deemed to be the exclusive employee of Mr. Calhoun. Empire Fire and Marine Insurance Company was Mr. Calhoun’s insurer, and Transport Indemnity Company was Altruk Freight Systems, Inc.’s insurer.

State Farm Mutual Automobile Insurance Company, as subrogee of the automobile driver’s property damage loss, initiated the action. Thereafter the schoolbus driver and Dade County exchanged cross-claims for contribution against the parties responsible for the tractor-trailer, and the school-bus driver filed a cross-claim on her own behalf for personal injuries. By mutual consent of the respective insurers of Calhoun and Altruk, the issue of primary insurance coverage was to be resolved by the trial court without jury and prior to trial on liability and damages.

The major contention made by appellant is that the trial court erred in ruling that its policy provided primary coverage on the ground that the lessee, Altruk Freight System, was in complete control of and governed the operation of the tractor-trailer, thus, Altruk’s insurance is primary. Appellant urges that paragraph 2 of the lease which required Altruk to “accept and maintain exclusive possession, control and use of the equipment and assume complete responsibility therefor . . . ” (this clause was included in the lease agreement under 49 C.F.R., § 1057.3(a), requiring that the lessee have control and responsibility for the operation of the leased equipment) dictates that since the entire operation was deemed to be under the control of Altruk, then it follows that the driver of such leased equipment be considered an employee of the lessee-carrier.

Appellee counters this argument by pointing out that Calhoun not only agreed that the driver was to be considered his own employee but also contracted to indemnify Altruk, paragraph 11 of the lease states: “Notwithstanding paragraph 2 hereof, Contractor shall indemnify and hold Carrier harmless from any . . . damage, liability, claim ... to cargo, persons or property.” In regard to this indemnity clause, a recent United States Supreme Court decision construing a similar lease is controlling here; in the opinion the court noted that the Interstate Commerce Commission requires all trip leases to have a clause making the carrier legally responsible to the public for use of a vehicle but held that an indemnity agreement, where owner agrees to indemnify the carrier, is valid and enforceable as a risk allocation device and is not repugnant to the mandatory acceptance of liability clause. Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975). The holding establishes that such an indemnity clause does not work to circumvent the requirement in I.C.C. regulations as to lessee-carrier’s responsibilities to the public; that it is not prohibited on public policy grounds by the “control and responsibility” requirement of 49 C.F.R. § 1057.3(a); that such a clause does not affect the lessee’s basic responsibility to the public, but only the relationship between the lessee and the lessor; that it does not conflict with the safety provisions of the I.C.C.’s regulations, §§ 1057.4(c) and 1057.4(e), relating to vehicle inspections and driver familiarity with safety regulations. Also see, Gateway Transportation Co. v. Phillips and Phillips Co., 261 N.W.2d 175 (Iowa 1978).

We now directly address the issue of which insurer must provide primary coverage. As stated in Burton v. Diamond Sand and Stone Company, 327 So.2d 95 (Fla. 2d DCA 1976) the employment status of the driver of the leased equipment is of paramount importance and this question must be answered in order to determine primary coverage. In the instant case the trial court did make the specific determination that the tractor-trailer driver was the exclusive employee of the lessor, Calhoun, under the express terms of the lease agreement which states in pertinent part:

“Contractor [Calhoun] shall furnish the drivers named on the reverse side hereof and shall be responsible for and pay drivers’ salaries, any applicable union benefits, Workmen’s Compensation coverage, all taxes based on payroll and all other costs and expenses incident to drivers’ employment. The drivers shall at no time be employees or agents of Carrier [Altruk]. Contractor shall provide Carrier with true copies of the Interstate Commerce Commission physical examination of the drivers, or doctor’s certificates in lieu thereof, and drivers’ daily logs for the seven days prior to the day of the execution of this Trip Lease or certificates in lieu thereof.”

The Burton court pointed out that under the type of factual situation that we are considering here, there is no doubt that the lessor’s insurer is estopped to deny primary coverage based on the doctrine of responde-at superior; the lessee’s insurer would then provide secondary coverage. Also see, Hertz Corporation v. Parsons, 419 F.2d 783 (5th Cir. 1969).

We find no error in the ruling of the trial court that Empire Fire and Marine Insurance Company is the primary insurer and the coverage afforded by Transport Indemnity Company is excess and shall not apply until the limits of the primary coverage of Empire have been exhausted.

For the above-stated reasons, the judgment is hereby affirmed.

Affirmed.


author: HUBBART, Judge.

text:
    The STATE of Florida, Appellant, v. Timothy OLIVER, Appellee.
    No. 78-639.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 18, 1979.

      Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before HENDRY and HUBBART, JJ., and EZELL, BOYCE F., JR., (Ret.), Associate Judge.
   HUBBART, Judge.

This is a criminal prosecution for unlawful possession of marijuana in which the trial court granted the defendant’s motion to suppress the subject marijuana on unreasonable search and seizure grounds. The state takes an appeal therefrom, which appeal we have jurisdiction to entertain. § 924.071(1), Fla.Stat. (1977).

The central question presented for review is whether the police retrieval of evidence discarded in the public streets by a defendant (a) after being illegally ordered to stop by the police but (b) before the police have begun a physical search of the defendant’s person or property, constitutes a search of the defendant’s person within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution. We hold that such evidence has been voluntarily abandoned by the defendant in an area where he has no reasonable expectation of privacy for the purpose of avoiding a police search and for that reason the police retrieval of such evidence from the public streets does not constitute a search of the defendant’s person within the meaning of the above constitutional provisions. Accordingly, we reverse the order under review.

A

The facts surrounding the seizure of the subject marijuana are undisputed. On December 7,1977, at approximately 11:45 a.m., Officer Michael Liotti and Detective Was-serman of the City of Miami Police Department were on patrol in an unmarked police car in the vicinity of Miami Avenue between 65th Street and 70th Street in Miami, Florida. They were investigating residential burglaries in that area and had received reports that some such burglaries may have been committed by young black teenagers on bicycles. The police officers observed the defendant Timothy Oliver and his brother Jerry, both black teenagers, riding bicycles on a pleasant Miami day. The officers had never seen these young men in the area and decided to follow them on the hunch that they might have something to do with the residential burglaries the police were investigating. The officers followed at a safe distance for a few blocks, waited while the pair pulled into a nearby gas station for a soft drink, and then continued to follow them for several more blocks. During the entire time the officers conducted this surveillance, nothing untoward or suspicious occurred other than the two teenagers riding slowly, leisurely looking around the neighborhood.

In the 5600 block of Miami Avenue, the police pulled along side the two teenagers, identified themselves as police officers, and told the two to pull over. Officer Liotti testified that their purpose in doing so was to temporarily detain and question the defendant and his companion concerning the residential burglaries in the area; the officers had no intention of arresting the two young men had they proved cooperative. After being ordered to stop, the defendant and his brother continued riding their bicycles while the defendant was seen to throw a paper bag to the ground on the public street. Detective Wasserman caught up to and detained the defendant and his brother while Officer Liotti retrieved the bag discarded by the defendant. An examination of the bag’s contents revealed a substance which appeared to be marijuana. The defendant was thereupon arrested for unlawful possession of marijuana.

The state charged the defendant by information with unlawful possession of more than five grams of marijuana [§§ 893.-03(l)(c), 893.13(l)(e), (f), Fla.Stat. (1977)]

before the Circuit Court of the Eleventh Judicial Circuit of Florida. The defendant entered a plea of not guilty and filed a pre-trial motion to suppress the subject marijuana on unreasonable search and seizure grounds. The trial court took testimony on the motion wherein the above facts were established and thereafter entered an order granting the defendant’s motion to suppress. The state appeals.

B

The Fourth Amendment to the United States Constitution and Article I, Section 12, of the Florida Constitution guarantees to the people, among other things, the right “to be secure in their persons . . . against unreasonable searches and seizures.” Central to invoking this constitutional guarantee is a threshold showing that a government officer has seized and searched a person. In the instant case, there is no question that the police seized the defendant’s person in the constitutional sense when they ordered the defendant to stop for the purpose of temporary questioning, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); nor is there any doubt that this seizure was unreasonable as it was based on a bare suspicion. Mullins v. State, 366 So.2d 1162 (Fla. 1978). The able trial judge so concluded in the order under review and we are in complete agreement therewith.

The controversy in this case centers on whether the police searched the defendant’s person when they retrieved the suspect marijuana from the public streets following the unreasonable seizure of the defendant. Stated another way, the question is whether the defendant voluntarily abandoned the suspect marijuana when he threw it into the public streets after being ordered to stop by the police or whether such abandonment was involuntary as being fatally tainted by the unreasonable police stop. If it is the former, no search of the person has taken place, Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); if it is the latter, such a search has taken place under the fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Our constitutional analysis must necessarily center on resolving this issue.

C

A search in the Fourth Amendment sense has been narrowly defined as “an inspection or examination of places closed from public or general view, and requires some measure of force or intrusion.” State v. Ashby, 245 So.2d 225, 227 (Fla.1971). More broadly, it has also been held that “the Fourth Amendment governs all intrusions on personal security by agents of the public. If there is an intrusion upon personal security by an officer, there is a search.” Elson v. State, 337 So.2d 959, 963 (Fla.1976). Essentially, then, a search and seizure under the Fourth Amendment covers any official invasion of a person’s reasonable expectation of privacy as to his person, house, papers or effects. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,19 L.Ed.2d 576 (1967); Huffer v. State, 344 So.2d 1332 (Fla.2d DCA 1977).

Searches of the person therefore include any physical touching of an individual’s body or clothing that causes hidden objects or matters to be revealed, such as rummaging through one’s pockets or clothing, Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), patting down one’s outer clothing without going into the pockets or other inner recesses, Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed. 889 (1968), knocking property loose from an individual by tackling him, Ippolito v. State, 80 So.2d 332 (Fla.1955), extracting an individual’s blood by means of a hypodermic needle, Schmer-ber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), or taking scrapings from beneath his fingernails, Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). A police demand that an individual disclose or hand over a concealed object is treated as a search, Moore v. State, 181 So.2d 164 (Fla.3d DCA 1965); United States v. Hallman, 365 F.2d 289 (3d Cir. 1966); Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961), as is a police demand that an individual open drawers and physically move the contents therein from side to side for police viewing. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

It is not a search, however, for the police to retrieve property which a defendant has voluntarily abandoned in an area where he has no reasonable expectation of privacy, Freyre v. State, 362 So.2d 989, 991 (Fla.3d DCA 1978), as where a person discards property (a) in the open fields while being pursued by the police, Hester v. United States, 265 U.S. 57,44 S.Ct. 445, 68 L.Ed. 898 (1924), or (b) in the public street either prior to an attempted police stop, Mitchell v. State, 60 So.2d 726 (Fla.1952); Holliday v. State, 104 So.2d 137 (Fla.1st DCA 1958); State v. Jackson, 240 So.2d 88 (Fla.3d DCA 1970), or after such a stop has been attempted or completed, State v. Nittolo, 317 So.2d 748 (Fla.1975); State v. Padilla, 235 So.2d 309 (Fla.3d DCA 1970), or (c) in a hotel room or shack which has been vacated, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Jones v. State, 332 So.2d 615 (Fla.1976). Central to this line of cases is the court’s conclusion that the police seizure of such evidence does not invade a reasonable expectation of privacy belonging to the person in question. In each case, the person has made a voluntary decision to avoid a police search by discarding evidence in an area where he has no Fourth Amendment protection. As a consequence, he cannot later claim that, notwithstanding his conduct, he was the victim of a police search as to the evidence he discarded.

In the instant case, we are concerned with whether the defendant voluntarily abandoned the suspect marijuana in view of the prior illegal police stop of the defendant. Admittedly, the cases here are in some conflict, but the weight of authority is that a person’s otherwise voluntary abandonment of property cannot be tainted or made involuntary by a prior illegal police stop of such person. Freyre v. State, 362 So.2d 989 (Fla.3d DCA 1978); Smith v. State, 333 So.2d 91 (Fla. 1st DCA 1976); Riley v. State, 266 So.2d 173 (Fla.4th DCA 1972). Contra: Stanley v. State, 327 So.2d 243 (Fla.2d DCA 1976). Only when the police begin to conduct an illegal search can a subsequent abandonment of property be held involuntary as being tainted by the prior illegal search, Kraemer v. State, 60 So.2d 615 (Fla.1952); Earnest v. State, 293 So.2d 111 (Fla. 1st DCA 1974); State v. Neri, 290 So.2d 500 (Fla.2d DCA 1974), and even that result may vary depending on the facts of the case. Freyre v. State, 362 So.2d 989, 991 (Fla.3d DCA 1978).

Fundamental Fourth Amendment interests as well as sound logic support the prevailing case law in this subject. Until an actual police search has begun, it cannot be assumed that the police will search a person whom they have temporarily stopped on the street or that they will search such a person’s car or other personal belongings. Not every temporary detention necessitates such action. State v. Lundy, 334 So.2d 671, 673 (Fla.4th DCA 1976). As a consequence, a person’s abandonment of property subsequent to an illegal police stop can hardly be considered the product of the stop. In any event, no person can have a reasonable expectation of privacy [which is at the core of Fourth Amendment protection] with respect to property which he has decided to discard in the public streets in hope of avoiding a police search. Such a decision precludes him from later asserting Fourth Amendment protection as to such property.

In the instant case, the defendant discarded property in the public streets after being illegally ordered to stop by the police. This otherwise voluntary abandonment of property in an area where the defendant had no reasonable expectation of privacy was in no sense prompted or tainted by the illegal police stop. Indeed, all agree that the police officers herein intended to stop and briefly question the defendant, rather than to arrest and search him. Moreover, the defendant no longer had any reasonable expectation of privacy in the property which he discarded because he divested himself of all possession therein by dropping it in a place where the public had complete access. This voluntary decision to avoid a police search by abandonment precludes him from now claiming that he was the victim of a search as to the property he discarded. No interest protected by the Fourth Amendment or Article I, Section 12, of the Florida Constitution was invaded when the police retrieved the suspect marijuana from the public streets.

D

This decision in no way authorizes open season by the state on people who walk or drive in the public streets. The court is fully cognizant that the state’s claim of abandonment like other testimony, can be spuriously as well as credibly asserted at the trial level. It is the function of the trial court to carefully weigh abandonment testimony against the other circumstances in the case, particularly where, unlike this case, the police officer involved has a past history of giving remarkably similar testimony in other cases. Although this court is precluded from re-weighing or reevaluating abandonment testimony, we do reserve the right, as in any other case, to reject “ ‘inherently incredible and improbable testimony or evidence.’ ” Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976). The abandonment or plain sight doctrine should never be cynically employed by the state as a way around the Fourth Amendment. In the instant case, our review of the record reveals no such inherently incredible or improbable testimony.

The order under review is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


author: SCHWARTZ, Judge.

text:
    Maria SALCEDO and Edilberto Salcedo, her husband, Appellants, v. ASOCIACION CUBANA, INC., a Florida Corporation, Appellee.
    No. 78-1213.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 18, 1979.
    Friedman & Lipcon and Marc Reynolds, Miami, for appellants.
    Preddy, Kutner & Hardy and Stephen T. Brown, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The plaintiff appeals from a final order which dismissed her complaint on the ground that the statute of limitations barred the action. We reverse upon a holding that the defendant has become estopped to assert the limitations defense by successfully asserting a legal position earlier in litigation between the parties which was inconsistent with its present one and which was responsible for the assertedly fatal delay in filing the instant action.

The plaintiff alleged that on November 3, 1973, she was negligently exposed to x-rays by the defendant-clinic’s employees when they told her to lift up her son, who had sustained an arm fracture, to a machine so that he could be x-rayed. According to her complaint, Mrs. Salcedo was pregnant at the time and was forced to undergo a therapeutic abortion because of the effect of the x-rays upon the fetus.

Throughout the litigation which followed, the plaintiff and her counsel have consistently maintained that her action against the clinic was, properly viewed, not a “malpractice” case, and that it was therefore governed by the general four year statute of limitations. Section 95.11(4), Florida Statutes (1973). This was so, because only her son was a patient of the clinic when the accident occurred and the injury did not therefore arise out of the defendant’s “medical . . treatment . . . ” of Mrs. Salcedo so as to require the application of the two year limitations period provided by Section 95.11(6), Florida Statutes (1973). Consistent with this position, the plaintiff filed an action against the clinic in the Dade County Circuit Court in July, 1977, well before the four year statute would have expired on November 3, 1977. The defendant, however, moved to dismiss that case on the ground that it was in fact a medical malpractice case, and that the submission of the claim to mediation was therefore a prerequisite to a circuit court action under Section 768.44(l)(a), Florida Statutes (1975). This contention was accepted by the circuit court which, contrary to Mrs. Salcedo’s position, dismissed the case so that mediation could be pursued. On October 12,1977, in accordance with this ruling which had thus been secured by the defendant, the plaintiff duly submitted her claim to mediation. The mediation proceeding continued for 131 days, or until February 20, 1978, when, as reflected by a clerk’s certificate to that effect, it was terminated by stipulation of the parties. On March 10, 1978, well before the running of the 60 day period from the date “. . .on which the jurisdiction of the [mediation] panel terminated” which Mrs. Salcedo was granted by Section 768.44(4) Florida Statutes (1975), she filed the present action in the Dade County Circuit Court. The defendant promptly pounced. Suddenly agreeing with the plaintiff’s position that the four year statute applied after all and that the case was not properly a “malpractice” action which should have been submitted to mediation, the clinic, represented by new counsel, moved to dismiss because the case had been filed too late — in fact, 127 days after November 3,1977. The trial judge, who was not the judge who had dismissed the prior, admittedly timely-filed claim, agreed with this new position. Holding that the applicability of the limitations defense appeared on the face of the complaint, the lower court dismissed the action and Mrs. Salcedo appealed. We reverse.

It is apparent to us that an application of the most elementary principles of equity and “good conscience,” Federated Mutual Implement & Hardware Ins. Co. v. Griffin, 237 So.2d 38, 42 (Fla. 1st DCA 1970), cert. denied, 240 So.2d 641 (Fla.1970), requires that the judgment below be set aside. The defendant, after securing the dismissal of a timely-filed action by successfully contending that the case must be submitted to medical mediation, has now successfully argued — directly to the contrary — that mediation was inappropriately invoked. Under the ruling below, the very delay occasioned by the acceptance of the defendant’s prior argument, has resulted in the barring of the claim through the court’s agreement with the later contention that the plaintiff was right in the first place. But the universal rule which forbids the successful assertion of inconsistent positions in litigation precludes the acceptance of any such result. This rule, under which a party is held to be “estopped” from doing so, has been applied in countless decisions in Florida, see 12 Fla. Jur. Estoppel and Waiver §§ 51-52 (1957) and cases cited, and in every other jurisdiction. 28 Am.Jur.2d Estoppel and Waiver §§ 68-75 (1966). Its elements were summarized in the leading case of Palm Beach Co. v. Palm Beach Estates, 110 Fla. 77, 148 So. 544, 549 (1933):

“The real meaning of the rule concerning estoppels of the kind relied on by appellees is that a party, who in an earlier suit on the same cause of action, or in an earlier proceeding setting up his status or relationship to the subject-matter of his suit, successfully assumes a factual position on the record to the prejudice of his adversary, whether by verdict, findings of fact, or admissions in his adversary’s pleadings operating as a confession of facts he has alleged, cannot, in a later suit on the same cause of action, change his position to his adversary’s injury, whether he was successful in the outcome of his former litigation or not.”

E. g., Federated Mutual Implement & Hardware Ins. Co. v. Griffin, supra; see also 12 Fla.Jur. Estoppel and Waiver §§ 54-55, pp. 489-443, and cases cited. It is difficult to imagine a situation to which this doctrine would more clearly apply than the one in the present case. Its effect is to estop the clinic from successfully claiming the benefit of the delay involved in the submission of the case to mediation which its former inconsistent position induced.

There can be no doubt that one may in fact be estopped from claiming the benefit of the statute of limitations. E. g., North v. Culmer, 193 So.2d 701 (Fla. 4th DCA 1967); 51 Am.Jur.2d Limitation of Actions § 431 et seq. (1970); 53 C.J.S. Limitations of Actions § 25 (1948). Even more specifically, such an estoppel may arise because of the applicability of the cited rule which precludes the taking of self-contradictory legal positions. Cases collected, Annotations, Estoppel to Rely on Limitations, 130 A.L.R. 8, 56-59 (1941); 24 A.L.R.2d 1413, 1443—1444 (1952). We find the holding in Gentry v. Barron, 109 Ga. 172, 34 S.E. 349, 350 (1899) particularly analogous and persuasive. Headnote four of the court’s syllabus states:

“One who procures an adjudication that an action against him upon a promissory note not under seal was prematurely brought, for the reason that the note was not due and payable until after a designated day, which had not arrived before the filing of the plaintiff’s petition, is estopped from setting up the statute of limitations in defense to a second action on the same note, brought after a dismissal of the first, and within less than six years from the day above indicated.”

See also, e. g., Girardi v. Gates Rubber Co. Sales Division, 253 F.Supp. 690 (N.D.Cal. 1965).

In earlier times, the rule we apply in this case was said to reflect the feeling that a party may not “mend his hold,” Ohio & M. R. Co. v. McCarthy, 96 U.S. 258, 268, 24 L.Ed. 693 (1878), or “blow hot and cold at the same time” or “have his cake and eat it too.” See Federated Mutual Implement & Hardware Co. v. Griffin, supra, at 237 So.2d 42; State v. Board of Commissioners of Clinton County, 166 Ind. 162, 76 N.E. 986, 1001 (1906). Today, we might say that the courts will not allow the practice of the “Catch-22” or “gotcha!” school of litigation to succeed. However it may be characterized, the estoppel doctrine means in this case that, having successfully claimed that mediation was a required condition precedent to the filing of this action, the defendant may not now be heard to say that the delay specifically caused by the pendency of that very proceeding has resulted in the running of the statute of limitations. Since the defendant is thus estopped to plead the defense upon which the action was dismissed below, the final order under review is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HENDRY, J., dissents.

      . The 1973 statute is applicable since the 1975 revisions of § 95.11 are not retroactive. Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA 1978), cert. denied, 361 So.2d 831 (Fla.1978); but see Carpenter v. Florida Central Credit Union, 369 So.2d 935 (Fla.1979). The same results would follow, however, under the 1975 law. §§ 95.11(3); 95.11(4)(b), Fla.Stat. (1975). See also Gonzales v. Jacksonville General Hospital, Inc., 365 So.2d 800 (Fla. 1st DCA 1978).

      . An earlier action, filed in 1975, was dismissed without prejudice for lack of prosecution.

      . See Chambers v. Gaul, 365 So.2d 213 (Fla. 4th DCA 1978); Jones v. North Dade Hospital, Inc., 359 So.2d 56 (Fla. 3d DCA 1978).

      . The clinic argues here that the plaintiff “should have appealed” the adverse ruling in the previous litigation. But no formulation of the estoppel doctrine requires anything beyond a party’s initial success in securing a ruling in accordance with a position he later abandons. Indeed, the rule applies even if the party is ultimately unsuccessful “. . .in the outcome of his former litigation . . Palm Beach Co. v. Palm Beach Estates, supra, 148 So. at 549. (In this case, the clinic was successful in winning a dismissal of the prior action.) We wonder also whether, consistent with its present position, the clinic would have confessed error in the appeal it now claims the plaintiff was required to pursue.

      . Secondary holding overruled in Rinker Materials Corp. v. Palmer First National Bank and Trust Co. of Sarasota, 361 So.2d 156 (Fla. 1978).

      . Those cases which hold that a limitations period is tolled while an injunction secured by the defendant prevents the commencement of a cause of action, cases collected, 130 A.L.R. 59-60, 24 A.L.R.2d 1444, and when an action is postponed pursuant to an agreement that suit shall not be brought pending the outcome of other litigation (here, the mediation proceeding), cases collected, 130 A.L.R. 60-61, 24 A.L. R.2d 1444-1445, are likewise closely related to our situation.

      . The mediation required by the court’s acceptance of the defendant’s position lasted 131 days and this action was filed “only” 127 days after the statute allegedly ran. It is therefore not necessary to decide whether the defendant would have been estopped to claim the inapplicability of the 60 day period from the end of the mediation proceeding, as provided by § 768.-44(4), Fla.Stat. (1975). See n.3, supra.


text:
    ABLE BUILDERS SANITATION CO., and Independent Portable Sanitation, Inc., Petitioners, v. The STATE of Florida, Respondent.
    No. 78-1690.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 16, 1979.

      Bierman, Sonnett, Beiley & Shohat and Lawrence E. Besser, Fine, Jacobson, Block, Goldberg & Semet and Theodore Klein, Miami, for petitioners.
    Janet Reno, State’s Atty. and Stephen V. Rosin, Asst. State’s Atty., for respondent.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   HUBBART, Judge.

This is an original petition for a writ of certiorari seeking review of a trial court order which refused to quash a state attorney investigative subpoena duces tecum in a criminal case. All agree that we have jurisdiction to entertain the petition. Art. V, § 4(b)(3), Fla.Const.; Fla.R.App.P. 9.100(a); see: Seaboard Air Line R. Co. v. Timmons, 61 So.2d 426 (Fla.1952); Travelers Indemnity Co. v. Salido, 354 So.2d 963 (Fla. 3d DCA 1978).

The central question presented for review is whether a state attorney under Section 27.04, Fla.Stat. (1977), may validly issue and enforce an investigative subpoena duces te-cum on a corporation when (a) the subpoena is returnable after the state has filed an information against such corporation, and (b) the subpoena seeks the production of documents which the state is not entitled to under the discovery provisions of the Florida Rules of Criminal Procedure. We hold that the state may not validly issue or have enforced such a subpoena duces tecum. Accordingly, we grant the petition for writ of certiorari and quash the order under review.

A

The facts of this case are undisputed. On August 1, 1978, the State Attorney for the Eleventh Judicial Circuit of Florida filed an information charging a number of corporations and other parties with an illegal combination in restraint of trade [§ 542.05, Fla. Stat. (1977)] before the Circuit Court for the Eleventh Judicial Circuit of Florida. Two of the corporations charged in the information were petitioners Able Builders Sanitation Co. and Independent Portable Sanitation, Inc. Prior thereto, the state attorney had issued an ex parte investigative subpoena duces tecum [under § 27.04, Fla.Stat. (1977)] which was returnable on August 18, 1978 or seventeen days after the above information had been filed. The subpoena duces tecum directed the petitioner Able Builders, through its registered agent Stanford Freedman, to produce certain corporate documents to wit: price lists, rental bills, and control cards pertaining to the rental of portable toilet units from January 1, 1976 through July 31, 1978. All agree that such corporate documents were directly relevant to the instant prosecution. The parties further agree that this or a similar subpoena duces tecum was also served on the petitioner Independent Portable Sanitation.

It appears without dispute that the petitioner did not invoke the reciprocal discovery provisions of the Florida Rules of Criminal Procedure subsequent to the filing of the information herein by filing a demand for reciprocal discovery under Fla.R. Crim.P. 3.220. The petitioners filed appropriate motions to quash the subpoena duces tecum served upon them, which motions the trial court denied. This petition for writ of certiorari follows.

B

[1 — 3] It is the established law of Florida that the state attorney under Section 27.04, Fla.Stat. (1977), may subpoena witnesses, either before or after an indictment or information has been filed, to take ex parte testimony in his office as to any violation of the criminal law within his jurisdiction. Gordon v. Gerstein, 189 So.2d 873 (Fla. 1966); Barnes v. State, 58 So.2d 157 (Fla. 1952). This investigative power, however, may not be exercised in such a way as to defeat the discovery provisions of the Florida Rules of Criminal Procedure. It is therefore clear that under Fla.R.Crim.P. 3.220(b)(3) a state attorney must (1) give reasonable notice to defense counsel as to the time and place a subpoenaed witness is to be examined under the above statute and (2) allow defense counsel to be present and to examine the subpoenaed witness, where an indictment or information has been filed and the defendant has furnished the state with a list of witnesses he expects to call at the trial or hearing, which list contains the name of the witness the state has subpoenaed. Similarly, the state may not use its investigative subpoena power after an indictment or information has been filed to discover documents and other physical evidence from the defendant which the state is not otherwise entitled to under the reciprocal discovery provisions of the Florida Rules of Criminal Procedure. Any other result would allow the state to violate the criminal discovery rules of the Supreme Court with impunity, a result which we cannot countenance.

All agree that the materials herein sought by the subpoena duces tecum were not discoverable by the state under the applicable discovery provisions of the Florida Rules of Criminal Procedure. The petitioners herein had been informed against and had not filed a demand pursuant to Fla.R.Crim.P. 3.220(a)(xi) for the state to allow them to inspect any tangible papers or objects which the state intended to use in the hearing or trial and which did not belong to the petitioners. In fact, no reciprocal discovery demand was filed in any form by the petitioners under Fla.R.Crim.P. 3.200. As a consequence, the petitioners were not obligated under Fla.R.Crim.P. 3.220(b)(4)(iii) to produce for the state’s inspection “[a]ny tangible papers and objects which [they] intend[ed] to use in the hearing or trial.” Indeed, even if such a reciprocal discovery demand had been filed by the petitioners, the state would have been limited to a subpoena duces tecum of those documents the petitioners intended to use at trial or at a hearing in this cause. It is therefore clear that the subpoena duces te-cum issued by the state in the instant case could not properly be enforced and should have been quashed upon the petitioner’s motions.

The state argues that Barnes v. State, 58 So.2d 157 (Fla.1952), authorizes the state attorney to employ his investigative subpoena power under Section 27.04, Florida Statutes (1977), to obtain, as here, discovery materials which are denied to him by the Florida Rules of Criminal Procedure. We cannot agree. No reading of Barnes suggests such an expansive holding. Indeed, the Florida Rules of Criminal Procedure with its detailed discovery provisions had not been adopted by the Florida Supreme Court at the time of the Barnes decision and such issue was therefore not before the Court. See: Datz, Rules of Criminal Procedure, 42 Fla.Bar J. 285 (1968); In re Florida Rules of Criminal Procedure, 196 So.2d 124 (Fla.1967); 272 So.2d 65 (Fla.1972); 343 So.2d 1247 (Fla.1977). Moreover, it is axiomatic that the state has no statutory authority to disregard the discovery provisions of Florida Rules of Criminal Procedure.

The petition for a writ of certiorari is granted, the order under review is quashed and the cause is remanded to the trial court for further proceedings.


author: HAVERFIELD, Chief Judge.

text:
    Nancy HEWITT, Individually and as next friend of Robert Hewitt, a minor, Petitioners, v. Henry CAFFEE, M.D., South Miami Hospital, et al., Respondents.
    No. 79-7.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 16, 1979.

      Deutsch & Blumberg and Edward R. Blumberg, Miami, for petitioners.
    Magill, Sevier & Reid, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for respondents.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   HAVERFIELD, Chief Judge.

Claimant, Nancy Hewitt, files the instant petition for writ of certiorari seeking a determination that the jurisdiction of the medical mediation panel has terminated in that a hearing on the merits has not been held within six months of the filing of her claim as required by Section 768.44(3), Florida Statutes (1977). The salient facts are as follows:

On June 13, 1978 Nancy Hewitt filed her claim for medical mediation naming as defendants, Henry Caffee, M.D. and South Miami Hospital. Dr. Caffee and the Hospital timely responded and then filed a motion to extend the time for final hearing. The judicial referee on October 11 entered an order extending the time for final hearing from 120 days to six months from the date of filing of the claim. Thereafter, the cause was set down by the judicial referee for final hearing on December 11. Subsequently, defendant Hospital moved to limit the December 11 hearing to permit only the introduction of medical records. The judicial referee then entered the following order:

* * * * * *
“ORDER LIMITING PROCEEDINGS
“THIS CAUSE came on to be heard upon Defendant SOUTH MIAMI HOSPITAL’S motion to limit proceedings and set date for completion of final hearing, and the court being fully advised in the premises, it is
“ORDERED that said motion be and the same is hereby granted as follows:
“1. The proceedings now set for December 11, 1978 are limited to a commencement hearing to permit only the introduction of medical records that have been obtained pursuant to subpoena or discovery proceedings.
“2. Upon introduction of medical records as desired by the parties, the final hearing of the Medical Mediation Panel will be recessed and completed at a subsequent date.
“3. The parties may proceed with discovery subsequent to the commencement hearing.”
* sit * * * *

This so-called commencement hearing was noticed for and held on December 8 (instead of December 11). The full panel convened and the Hospital introduced a set of hospital records. Hewitt objected to this five minute hearing as not being a final hearing or one on the merits. Her objections were overruled and the hearing concluded. Final hearing was then set for March 1, 1979. Hewitt filed the instant petition for writ of certiorari alleging that the medical mediation panel lost jurisdiction for failure to hold a hearing on the merits within six months of the filing of her claim.

The dispositive issue is whether the hearing of December 8 limited to the introduction by the Hospital of a set of medical records can be properly characterized as the commencement of a final hearing on the merits.

As this appears to be a case of first instance we turn to Black’s Law Dictionary (4th Ed.) which offers the following definition of a “hearing” and final hearing”:

***** *
“HEARING. Proceeding of relative formality, generally public, with definite issues of fact or of law to be tried, in which parties proceeded against have right to be heard, and is much the same as a trial and may terminate in final order. In re Securities and Exchange Commission, D.C.N.Y., 14 F.Supp. 417, 419. Synonymous with trial, and includes reception of evidence and arguments thereon. Grant v. Michaels, 94 Mont. 452, 23 P.2d 266. It is frequently used in a broader and more popular significance to describe whatever takes place before magistrates clothed with judicial functions and sitting without jury at any stage of the proceedings subsequent to its inception, and may include proceedings before an auditor. Me-nard v. Bowman Dairy Co., 296 Ill.App. 323, 15 N.E.2d 1014, 1015.
“FINAL HEARING. Describes that stage of proceedings relating to the determination of a suit upon its merits as distinguished from those of preliminary questions. Menard v. Bowman Dairy Co., 296 Ill.App. 323, 15 N.E.2d 1014, 1015. It may also be used with reference to a dismissal on the motion of plaintiff. Christensen v. General Electric Co., D.C.N.Y., 248 F. 284, 286.”
******
The federal courts have defined a hearing as requiring a trial of an issue of fact. “Trial of an issue of fact necessitates an opportunity to present evidence.” See Hawkins v. Board of Control of Florida, 253 F.2d 752, 753 (5th Cir. 1958).

Further, Section 768.44(6), Florida Statutes (1977) below clearly sets out what is to transpire at the final hearing:

******
“(6) The claim shall be submitted to the hearing panel under such procedural rules as may be established by the Supreme Court, however, strict adherence to the rules of procedure and evidence applicable in civil cases shall not be required. Witnesses may be called; all testimony shall be under oath; testimony may be taken either orally before the panel or by deposition; copies of records, x-rays, and other documents may be produced and considered by the panel; and the right to subpoena witnesses and evidence shall obtain as in all other proceedings in the circuit court. The right of cross-examination shall obtain as to all witnesses who testify in person. Both parties shall be entitled, individually and through counsel, to make opening and closing statements. No transcript or record of the proceedings shall be required, but any party may have the proceedings transcribed or recorded . . . ”
******

Last, Section 768.44, Florida Statutes (1977) contemplates the just, speedy and inexpensive determination of every claim. See Fla.R.Med.P. 20.010.

After a review of the record in the case at bar, we conclude that the December 8 hearing cannot be considered or characterized as the commencement of a final hearing. That hearing simply permitted defendant to introduce a set of medical records. The claimant, Hewitt, was not permitted to make an opening statement, to call witnesses on her behalf, etc., as contemplated under Section 768.44(6) Florida Statutes (1977). Defendant South Miami Hospital admitted in its motion to limit proceedings that it had not completed the preparation of its defense. Thus, it is apparent that this “limited” hearing of December 8 was a device to extend the six-month statutory period within which a final hearing must be commenced as provided in Section 768.44(3), Florida Statutes (1977). See also Fla.R. Med.P. 20.160(e). To condone such dilatory tactics would, in effect, be permitting any party to a medical mediation proceeding at his or her option to thwart the very purpose of the proceeding to secure a “just, speedy and inexpensive determination of every claim.”

As no final hearing on the merits was held within six months after the filing of Hewitt’s claim, the jurisdiction of the medical mediation panel terminated as a matter of law and Hewitt may now pursue her cause of action in the circuit court without further delay. See Burchett v. Clontz, 363 So.2d 15 (Fla. 4th DCA 1978); Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978).

Upon remand the Clerk of the Circuit Court is hereby directed to send a notice of termination to all parties pursuant to Fla.R. Med.P. 20.190(c).

Certiorari granted.

      . “(3) The clerk shall, with the advice and cooperation of the parties and their counsel, fix a date, time, and place for a hearing on the claim before the hearing panel. The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the claim is filed . . . ”

      . “(e) The clerk shall set a final hearing on the claim before the panel. The hearing is to be held within 120 days from the date the claim is filed. Upon a showing of good cause prior to the expiration of the 120 days from the date the claim was filed, the judicial referee, by written order, may extend the time for commencing the hearing. In any event, the hearing shall be begun no later than six months from the date of the filing of the claim.”