text:
    LEE COUNTY, Florida, etc., Appellant, v. STATE of Florida, etc., et al., Appellees.
    No. 53282.
    Supreme Court of Florida.
    April 12, 1979.

      James T. Humphrey, Jr. of Goldberg, Rubinstein & Buckley, Fort Myers, and Daniel U. Livermore of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appellant.
    Joseph P. D’Alessandro, State Atty., Fort Myers, Jim Smith, Atty. Gen., Martin S. Friedman, Asst. Atty. Gen., Tallahassee, and James H. Seals of Moorey, Seals & Garvin, Fort Myers, for appellees.
    Neal D. Bowen, City Atty., Sanibel, for the City of Sanibel, amicus curiae.
   SUNDBERG, Justice.

We are called upon to revisit the controversy surrounding the proposed validation of Lee County, Sanibel Bridge Improvement Revenue Bonds. In McGovern v. Lee County, 346 So.2d 58 (Fla.1977), we reversed the initial validation of bonds “because the record fails to establish that the majority of improvements will actually make a significant contribution to the traffic over the bridge, and the toll to pay these new proposed revenue bonds would place an undue burden on the residents and visitors to Sanibel Island.” Id. at 60. After a revised bond resolution and second amended complaint, the Circuit Court for Lee County denied validation. The court noted that certain road segments included within the bond issue fully satisfied the definition of “approach road” established in McGovern, but it felt constrained to deny validation to the entire issue because of its belief that it could not rule piecemeal. We have jurisdiction pursuant to article V, section 3(b)(2), Florida Constitution.

The three major issues in this appeal are (1) whether the trial court erred in holding that it could not validate a part of the bond issue and invalidate another part; (2) whether the court correctly applied the test for “approach road” enunciated in McGovern ; and (3) whether the proposed parking facility on Sanibel Island may be funded in part by the proceeds from this bond issue. Appellant maintains that the trial court had authority to validate less than the entire bond issue, but that it erred in interpreting the functional test in McGovern as being two-pronged rather than alternative. Appellees assert that the trial court correctly applied the functional test and that the court lacked authority to validate only a portion of the bonds. For the following reasons, we affirm in part and reverse in part.

Preliminarily, we hold that a circuit court has authority to validate certain portions of a bond issue and invalidate others. The procedure avoids duplicative effort and has been sanctioned in the past. See Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (Fla.1971); State v. Florida State Improvement Commission, 160 Fla. 230, 34 So.2d 443 (1948).

The focal point of this appeal is the question: What is an approach road within the intendment of the Revenue Bond Act of 1953 and sections 159.02(7), (8), Florida Statutes (1977)? In McGovern, this Court formulated a functional, as opposed to locational, test to ascertain whether a road is an approach road. The raison d'etre of the functional inquiry is to assure that the benefits and burdens of a proposed project fall equitably. Hence, “those who directly benefit from the project should bear a substantial portion of the cost and . . . those who bear the substantial cost should benefit from the expenditure of money on the project.” McGovern, 346 So.2d at 64. The principle is achieved in this case if a significant number of persons paying the bridge toll are benefited by the improvements on the purported approach roads, and if a significant number of persons utilizing these roads contribute to the burden of paying the bridge toll.

The parties to this dispute disagree as to the correct interpretation of the functional test. The test provides:

A road or a segment of a road is an approach or approach road if a significant portion of its traffic moves onto the bridge or causeway, or if a significant portion of the traffic moving across the bridge or causeway came from the road or road segment.

Id. at 65.

Appellant contends that the test is alternative, that is, it must show only that a significant portion of the road’s traffic moves onto the bridge, or that a significant portion of the traffic moving across the bridge came from the road. Appellees argue essentially that both prongs of the test must be satisfied.

We perceive the proper interpretation of the functional test to be somewhat of a hybrid. To characterize a road or road segment as an approach road, there must be some logical and substantial nexus between utilization of the road and the bridge or causeway. The appropriate inquiry is whether a significant function of the road is to serve traffic heading to and away from the bridge. In making this determination, the court must ask itself this question: What is the road really used for? If the road serves only incidentally to ferry traffic to and from the bridge or causeway, it cannot be considered an approach road, even though a large portion of bridge traffic may come from this road.

The trial court had ample evidence to support its finding that the Sanibel road projects, SR 847 from the toll plaza to San Carlos Boulevard, and SR 869 from McGre-gor Boulevard to San Carlos Boulevard fit within the McGovern approach road definition. Percentage figures presented in testimony established that a large portion of the traffic on these road segments was either going to or coming from the causeway. Correspondingly, ample evidence supported the judge’s finding that the other road segments were not approach roads. The court correctly noted that the vast majority of persons using these roads were destined for points other than Sanibel, “thus contributing not one penny to the fine highways they have been using; to the contrary they will be enjoying the benefits paid for by persons using a causeway miles away from their exit.” The functional nexus between these roads and Sanibel bridge was simply too tenuous to justify imposition of bridge tolls to fund their improvement.

Appellees assert that the proposed parking facility on Sanibel cannot be constructed under appellant’s bond financing scheme. They cite section 159.02(25), Florida Statutes (1977), for the proposition that the facility must be self-liquidating. Section 159.02(25) states that “[t]he term ‘parking facilities’ shall mean any facility constructed for the purpose of vehicular parking and the use, operation and occupancy of such parking facilities and for which charges are made.” Due to the invalidity of other segments of the bond issue and the court’s perception that it could not rule piecemeal, the trial judge did not respond to this contention.

We believe that section 159.02(25) contemplates a parking facility different in kind than the proposed Sanibel facility. A parking lot must be self-liquidating pursuant to section 159.02(25) only if it constitutes a separate and distinct project. If the facility is an integral part of a more comprehensive project, such as a bridge and improvements to its approach roads, the facility is without the scope of subsection (25) and independent charges for its use need not be imposed. We previously held in McGovern, and now reaffirm, that the Sani-bel parking facility is an integral part of this financing scheme if it bears a direct relation to the use of the bridge and contributes to a major extent to the generation of tolls by drawing traffic across the bridge, or if it directly and substantially benefits the users of the bridge. The evidence adduced at trial is overwhelming that the proposed facility satisfies this test.

Accordingly, the final order of the Circuit Court for Lee County is affirmed as to findings number one, two, and three. The remainder is reversed and the cause remanded for entry of a judgment consistent with this opinion.

It is so ordered.

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

      . For a complete recital of the facts relevant to this appeal, see McGovern.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Dale CARSON, etc., et al., Appellants, v. Richard Franklin MILLER, et al., Appellees.
    No. 55220.
    Supreme Court of Florida.
    April 12, 1979.
    Jim Smith, Atty. Gen., Gary L. Conover, Asst. Atty. Gen., Tallahassee, for appellants.
    William J. Sheppard, Jacksonville, for ap-pellees.
   PER CURIAM:

We have for resolution the following question certified from the Fifth Circuit Court of Appeals pursuant to section 25.031, Florida Statutes (1977), and Florida Rule of Appellate Procedure 9.510:

WHETHER THE RULE PROPOSED BY THE SECRETARY OF THE FLORIDA DEPARTMENT OF OFFENDER REHABILITATION COMPLIES WITH THE REQUIREMENTS OF SECTION 951.23(2)(b), FLORIDA STATUTES.

We hold that this question must be answered in the negative.

Section 951.23(2)(b) provides:

The Department of Offender Rehabilitation is . directed to adopt rules and regulations prescribing standards and requirements with reference to . the number of county and municipal prisoners who may be housed therein per specified unit of floor space

Appellant Wainwright, Secretary of the Department of Offender Rehabilitation, asserts that rule 33-8.02(10) of the Florida Administrative Code satisfies the statute by requiring that

[t]he Secretary shall ascertain the maximum numbers of prisoners that can properly be housed in any detention facility. . . . The Officer-in-Charge . . . shall thereafter insure that the actual prisoner populations do not exceed such maximum numbers; provided, however, that the Secretary may authorize exceptions or modifications when in his opinion there is good cause for such action.

The assertion is untenable.

Section 951.23(2)(b) requires that “standards and requirements” governing the density of detention populations be prescribed by rules adopted in the manner specified in section 120.54, Florida Statutes (1978 Supp.). The Department did not discharge its rulemaking duty by delegating to the Secretary authority to “ascertain” proper housing capacities of the state’s detention facilities. We have consistently held that unambiguous statutory language must be accorded its plain meaning. Thayer v. State, 335 So.2d 815 (Fla.1976); McDonald v. Roland, 65 So.2d 12 (Fla.1953); A. R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157 (1931); Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918).

In carrying out its rulemaking duty, the Department is not obliged to establish a single uniform square footage requirement for all existing county and municipal detention facilities, without regard for variables such as cell sizes, dayroom sizes, recreational area sizes, open cell block areas, individual cell block areas, or common open areas. Section 951.23(2Xb) requires the promulgation of “standards” which are determinative of population densities in varying situations, and the choice of a particular scheme satisfying the statute is left to the Department, to whose action this Court would accord a strong presumption of regularity. See Florida Citrus Commission v. Gift, Inc., 91 So.2d 657 (Fla.1956). Yet plainly the Department must act by rules.

Rule 33-8.02(10), as proposed by the Secretary of Offender Rehabilitation, does not comply with the requirements of section 951.23(2)(b), Florida Statutes (1977). The certified question posed by the Fifth Circuit Court of Appeals is answered in the negative.

It is so ordered.

ENGLAND, C. J., BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., and SMITH, Associate Justice, concur.

ADKINS, J., dissents.


author: McCORD, Chief Judge.

text:
    Robert O. THOMAS and Jack F. West, Appellants, v. Paul L. SUTHERLAND, Appellee.
    No. HH-39.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1978.
    Rehearing Denied May 21, 1979.
    O. 0. McCollum, Jr., of Thames & McCol-lum, Jacksonville, for appellants.
    Alan C. Jensen, Jacksonville, for appellee.
   McCORD, Chief Judge.

Appellants, defendants below, appeal a final judgment entered in appellee’s favor in a suit brought by appellee against appellants on a promissory note. We reverse.

Appellee sued Neptune Manufacturing Co., Inc., a corporation, hereafter referred to as Neptune, and appellants, Robert O. Thomas and Jack F. West, as makers of a promissory note alleging a default in payment of the June 3, 1975, note installment. At the conclusion of the evidence, the trial court entered final judgment finding that appellants had defaulted on June 3,1975, by failure to make the payment due on that date and entered final judgment on the note. The court also entered final judgment in favor of appellant West against appellee and Neptune on appellant West’s counterclaim for damages to West resulting from West’s payment of a debt of the corporation upon which he was a secondary guarantor and appellee was primary guarantor.

From the evidence it appears that in May of 1974, appellants Thomas and West individually and Thomas in his corporate capacity as president of Neptune, executed and delivered the promissory note to appellee Sutherland. The note was given in consummation of a transaction whereby appellants purchased all of the capital stock of Neptune from appellee, the founder, operator and sole stockholder of Neptune. The transaction consisted of a sales-purchase agreement, a security agreement, and the promissory note. On May 20, 1975, appel-lee notified appellants that they were in default under the security agreement in that the corporation had failed to maintain a ratio of current assets to current liabilities of not less than one-to-one as required by the security agreement and by failure to furnish to appellee quarterly financial reports as required by the security agreement. The notice advised that appellee elected to exercise his right under the security agreement and to vote the corporate stock at a special stockholders meeting which he called for May 23, 1975, and to remove appellants as directors of Neptune. It appears from the record that appellee had learned that appellants had dissipated and transferred a considerable amount of the corporate assets to another corporation they had formed and that information was the primary predicate for his taking over Neptune.

At the stockholders’ meeting, appellants resigned as officers and directors of Neptune and surrendered possession of the corporate stock to appellee. Appellee elected himself president; one Donald Albert, a director; and his brother, secretary, and thereafter for a period of time paid himself a salary. He liquidated a part of the corporate assets for $12,332 without notice to appellants and on November 21, 1975, he resigned, placed the rest of the corporate assets in storage, and took the corporate records to appellant West. He had previously filed this suit on November 9, 1976.

The pertinent provisions of the security agreement relating to the takeover of the collateral are as follows:

“Upon any default of the Debtor and at the option of the Secured Party, the obligations secured by this agreement shall immediately become due-and payable in full without notice or demand and the Secured Party shall have all rights, remedies and privileges with respect to repossession, retention and sale of the collateral and disposition of the proceeds as are accorded to a Secured Party by the applicable sections of the Uniform Commercial Code respecting ‘Default’ in effect as of the date of this Security Agreement.”

The agreement further provides in relation to a repossession by the secured party as follows:

“. . . Unless the collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Secured Party will give Debtor reasonable notice of the time and place of any public sale thereof or of the time after which any private sale or any other intended disposition thereof is to be made.”

There is no showing in the record that the collateral which was disposed of by appellee was perishable, threatened to decline speedily in value or was of a type customarily sold on a recognized market nor has appel-lee contended that such was the case. After repossession of the collateral (or what remained of it), appellant would have been entitled to a judgment for deficiency in the remaining amount owing to him under the promissory note after disposal of such collateral pursuant to the terms of the Uniform Commercial Code [Chapters 671-680, Florida Statutes (1975)]. Unfortunately for appellee, he destroyed his right of action for the deficiency in that he failed to give the notice of sale required by both the security agreement and § 679.504(3), Florida Statutes (1975). Barnett v. Barnett Bank of Jacksonville, 345 So.2d 804 (Fla. 1 DCA 1977); Turk v. St. Petersburg Bank and Trust Co., 281 So.2d 534 (Fla. 2 DCA 1973); Hepworth v. Orlando Bank and Trust Co., 323 So.2d 41 (Fla. 4 DCA 1975); and Washington v. First National Bank of Miami, 332 So.2d 644 (Fla. 3 DCA 1976).

Reversed and remanded with directions to enter judgment in favor of appellants.

BOYER, J., and McLANE, RALPH M., Associate Judge, concur.

      . The security agreement gave appellee a security interest in the stock of Neptune, the inventory and assets of Neptune then existing and subsequently acquired and a certain lease agreement with Progress Enterprises, Inc.


author: HAVERFIELD, Chief Judge. PER CURIAM.

text:
    LEHMAN-EASTERN AUTO RENTALS, INC., et al., Appellants, v. Gerald L. BROOKS, Jr., et al., Appellees.
    Nos. 76-1489, 76-1490, 76-1491, 76-1543 and 76-1544.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied May 9, 1979.
    Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Ryskamp, Jack E. Thompson & Associates, Daniels & Hicks and Sam Daniels, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Thornton, Conroy & Herndon and John Edward Herndon, Jr., Fowler, White, Burnett & Hurley and Henry Burnett, Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appellees.

      Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   HAVERFIELD, Chief Judge.

Defendants/cross-claimants, Lehman-Eastern Auto Rentals and its primary and excess liability insurers, Pan American Insurance Company and Universal Underwriters Insurance Company, appeal summary final judgments which held them liable for the full amount of a $450,000 settlement and assessing against them the costs and attorneys’ fees incurred by the insurers of the other defendants in this negligence action arising out of an automobile accident. The facts giving rise to this appeal are as follows:

Debbie Stafford, an Ohio college student in participation with her political science class, made arrangements to come to the 1972 Democratic National Convention in Miami Beach. Desirous of having the use of an automobile, Stafford contacted Pete Ransom, a hometown friend of her mother, and requested that he arrange for a rental car upon her arrival in Miami. Ransom in turn asked his hometown Ohio car dealer, Howard Niggles Pontiac, to make arrangements for a rental car in Miami. Howard Niggles Pontiac contacted Lehman-Eastern Auto Rentals, reserved a rental car and forwarded $200 on behalf of Ransom who thereafter reimbursed Niggles. When Stafford arrived in Miami and went to pick up the car, Lehman-Eastern refused to deliver the car as she was under 21 years of age. Stafford was advised to get someone over 21 to come in and take delivery of the car. She enlisted the aid of a fellow student, David Kennedy, who was 21. They both went to Lehman-Eastern and Kennedy signed the rental agreement which listed Pete Ransom and Howard Niggles Pontiac as the lessees.

Thereafter, Stafford gave Mark Berman permission to use the car and while driving it Berman struck the plaintiff, Gerald Brooks, Jr. (not a party to this appeal), who sustained serious personal injuries. Brooks filed a suit for damages naming as defendants Mark Berman, Lehman-Eastern, Pete Ransom, Howard Niggles Pontiac, David Kennedy, Debbie Stafford and their liability insurers. Subsequently, Brooks settled his case for $450,000. Each of the liability insurers for the respective defendants contributed to the settlement fund as follows:

Owner — Lehman-Eastern
(Primary) Insurer — Pan American $100,000 coverage $ 10,000 paid toward settlement
(Excess) Insurer — Universal Underwriters $1,000,000 coverage $ 75,000 paid toward settlement
Driver — Berman
Insurer — Associated Indemnity $100,000 coverage $100,000 paid toward settlement
Lessee — Ransom
Insurer — Mayflower Insurance Co. $100,000 coverage $100,000 paid toward settlement
Lessee — Kennedy
Insurer — State Auto Insurance Co. $100,000 coverage $100,000 paid toward settlement
Lessee — Stafford
Insurer — Buckeye Union Insurance Co. $1,000,000 coverage $ 15,000 paid toward settlement
Lessee — Niggles
Insurer — Buckeye Union Insurance Co. $300,000 coverage $ 50,000 paid toward settlement.

After the settlement the cross-claims of Pan American and Universal for indemnity against the other insurers and their counter/cross-claims were left to be resolved. Subsequently, the trial court entered the herein appealed summary final judgments finding that Pan American and Universal were liable for the total amount of the $450,000 settlement and the other insurers were to be indemnified for their contributions, costs and attorneys’ fees. We reverse.

Pan American first contends that it has no liability because the rental agreement provides that the renter would be an insured under Lehman-Eastern’s policy only if the renter has no other valid and collectible automobile liability insurance. We must reject this argument based upon the authorities cited in Executive Rent-A-Car, Inc. v. Uditsky, 297 So.2d 340 (Fla.3d DCA 1974), cert. denied, 310 So.2d 742 (Fla.1975) holding such clauses invalid.

Pan American next argues that its liability is limited to $10,000, the minimum amount required under the Florida Financial Responsibility Law. We find this point has merit.

While primary financial responsibility is placed on an owner’s insurance carrier for the damages caused by the vehicle in the course of its intended use no matter who is driving, the owner and his insurance carrier may contract with the lessee to limit its liability to the statutory minimum coverage. Ins. Co. of North America v. Avis Rent-A-Car, 348 So.2d 1149 (Fla.1977). The subject rental agreement clearly provides that the limits of liability available to the renter shall not exceed the limits of liability specified in the Florida Financial Responsibility Law (i. e. $10,000). Thus, the summary final judgment finding in effect that Pan American provided the first $100,000 in coverage (the limits of its policy with Lehman-Eastern) is erroneous and must be reversed.

Pan American also raises an additional point, whether the other insurers by virtue of the settlement agreement waived their right to deny liability.

With the exception of Associated Indemnity (Mark Berman’s insurance carrier), all the remaining insurers counter/cross-claimed for indemnity on the ground that their respective insureds were not liable. If an automobile liability insurer assumes the defense of an insured and enters into a settlement agreement with knowledge of facts taking the accident or injury outside the coverage of the policy and without disclaiming liability or reserving its right to deny liability or coverage, such insurer is thereafter precluded from denying liability. See U.S. Fidelity & Guar. Co. v. Snite, 106 Fla. 702, 143 So. 615 (1932), 18 A Fla.Jur. Insurance § 815 (1971), and Cf. Pacific Indem. Co. v. California State Auto. Ass’n, 190 Cal.App.2d 293, 12 Cal.Rptr. 20 (1961). The record in the instant case is unclear as to whether the insurance carriers made any agreement (oral or written) between themselves with respect to the preservation of the liability issue upon contributing to the settlement with the plaintiff. This material issue being unresolved, summary judgment is precluded thereby.

Last, we address the argument of Universal Underwriters that the court erred in holding that the insurers for the lessees are entitled to indemnification against Universal. In support of this contention, Universal suggests that under the holding in Ins. Co. of North America v. Avis Rent-A-Car, 348 So.2d 1149 (Fla.1977), supra, the primary level of coverage was provided by the insurers for the driver and the lessees; the secondary level of coverage was provided by the owner’s insurer, Pan American; and the third level of coverage was provided by Universal. Pursuant to these priorities in coverage, Universal claims it is entitled to be indemnified by the insurers of the lessees for the $75,000 which it contributed to the settlement.

Under Ins. Co. of North America, supra, the court clearly held that the owner of the vehicle is still primarily liable at least up to the statutory limits. In the case at bar, as we have already stated above, Pan American provided the primary coverage up to $10,000. The second level of coverage then was provided by the insurer of the driver and the insurers of the lessees. Universal would then provide the third level if any excess remains. In the event that it is not necessary to reach the third level of coverage, then Universal would be entitled to indemnity from the insurers of those lessees (if any) whom the trial court determines are liable. However, Universal may be precluded from claiming indemnity if, as discussed above, Universal failed to preserve the issue of liability.

For the reasons stated, the summary final judgments herein appealed are reversed and the cause remanded to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded.

Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.

ON PETITION FOR REHEARING AND/OR CLARIFICATION

PER CURIAM.

In its petition, appellant Universal Underwriters Insurance Company contends that inasmuch as it is an excess carrier and its excess policy was written with the representation that its insured, Lehman-Eastern, has underlying coverage of $100,000, none of its (Universal’s) coverage is exposed until all of the underlying coverage is exhausted. In other words, Pan American (Lehman-Eastern’s primary carrier) must pay out its total of $100,000 of coverage before Universal has any exposure. We find this point well taken.

As we held in our main opinion, Lehman-Eastern and its primary insurer, Pan American, are responsible for the first level of coverage with a liability limit of $10,000 (as provided in the lease agreement). The second level of coverage is provided by the driver and lessees and their liability insurers. In the event that the total amount of damages exceeds the amount of insurance available at the first and second levels of coverage, Universal argues that the third level of additional coverage of up to $90,000 would be provided by Pan American and this amount must be exhausted before Universal would be required to provide any excess coverage. We agree with this position in that Part One, Section IV of Pan American’s policy issued to Lehman-Eastern provides that with respect to a contingent insured (i.e. lessee) that Pan American, up to the limits of its policy (i.e. $100,000), shall be liable for the amount by which the total of the loss exceeds the sum of the limit of liability provided by all other applicable insurance. However, we repeat that Universal may be precluded from claiming indemnity if Universal failed to preserve the issue of liability. To summarize, the various levels of coverage are provided by the respective insurers as follows:

Level 1: Pam American (up to $10,000)
Level 2: Insurers for the driver and lessees
Level 3: Pan American (up to $90,000)
Level 4: Universal as excess insurer. Petition for clarification granted.

Petition for rehearing denied.

      . “IV. LIMITS OF LIABILITY AND LIMITED APPLICATION OF THIS INSURANCE
      “a) The limits of the company’s liability under PART ONE of this policy shall be the amount by which the applicable financial responsibility limit exceeds the sum of the limits of liability under all other automobile liability insurance available to the contingent insured, separately as to bodily injury and property damage, but
      “b) the insurance under PART ONE of this policy SHALL NOT APPLY TO ANY LOSS WITH RESPECT TO WHICH THE CONTINGENT INSURED IS COVERED BY ANY OTHER AUTOMOBILE LIABILITY INSURANCE, WHETHER ON A PRIMARY, CONTRIBUTORY, EXCESS OR ANY OTHER BASIS, UNLESS the total amount of the loss exceeds the sum of the limits of liability of all other policies, bonds, or plans of self-insurance affording such insurance, and then the company shaii be liable, subject to (a) above, only for the excess of the loss above such insurance.”


author: PER CURIAM. MELVIN, Judge,

text:
    Glenn Thomas MOHR, Petitioner, v. STATE of Florida, Respondent.
    No. LL-189.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1979.

      William H. Maness, Jacksonville, for petitioner.
    Robert L. Shevin, Atty. Gen., for respondent.
   ON PETITION FOR REHEARING

PER CURIAM.

Denied.

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

MELVIN, J., dissents.

MELVIN, Judge,

dissenting.

This case involves Florida Statute 800.02.

Petitioner, Glenn Thomas Mohr, was charged in the County Court of Duval County with an “unnatural and lascivious act with another person” in that he did “rub the genital area” of that person contrary to section 800.02, Florida Statutes. He was there found guilty by the court sitting without a jury and sentenced to thirty days in the county jail. He appealed directly to the Supreme Court of Florida, attacking the constitutionality of the statute. The Supreme Court, observing that “the validity of section 800.02, Florida Statutes, having been recently upheld by this court,” transferred the appeal to the Circuit Court in and for Duval County. There the judgment and sentence were affirmed. Mohr then petitioned this court for common law certio-rari, alleging a departure from the essential requirements of law. We, without hearing or briefs denied the petition.

Mohr has now filed a Motion for Rehearing. In my view that motion should be granted and an order to show cause pursuant to Rule 9.100(f), Florida Rules of Appellate Procedure, should be issued directing the State to show cause why relief should not be granted to the petitioner.

A careful reading of the Petition for Common Law Certiorari reflects, in my view, that there has been a departure from the essential requirements of law in two respects: First, the evidence adduced in the trial court does not sustain a conviction of the alleged crime charged. Second, if the conduct of which Mohr is alleged to have been guilty, as proved by the evidence, is sufficient to sustain a conviction under F.S. 800.02, then that statute is unconstitutional as applied to the facts of this case.

Chapter 800, Florida Statutes, is entitled “Crime Against Nature; Indecent Exposure”. F.S. 800.02 is entitled “Unnatural and Lascivious Act” and provides:

“Whoever commits an unnatural and lascivious act with another person shall be guilty of a misdemeanor of the second degree, * * * ”.

An unnatural and lascivious act with another person has generally been conceived of in the legal sense to refer to sexual activity undertaken or completed. The appellate decisions upholding the facial constitutionality of the statute have done so on the theory that the conduct proscribed by the statute is oral or anal sex. (See Franklin v. State, 257 So.2d 21 (Fla.1971); Witherspoon v. State, 278 So.2d 611 (Fla., 1973); State v. Fasano, 284 So.2d 683 (Fla., 1973); Bell v. State, 289 So.2d 388 (Fla., 1973); Thomas v. State, 326 So.2d 413 (Fla., 1975), and Johnsen v. State, 332 So.2d 69 (Fla.App., 1976).)

At its strongest, the evidence in this case reveals only that Mohr, a fully clothed male, while driving an automobile in the company of another fully clothed male policeman touched or squeezed the latter’s genital area. Under no stretch of the imagination would the ordinary citizen consider such an act as being proscribed by F.S. 800.02 as an “unnatural and lascivious act”. From ought that appears from the application of the alleged conduct in this case to the alleged crime a male physician giving another male the traditional Army, Navy, or Marine Corps “short arm examination” would be guilty of a crime.

Clearly the language of the statute does not meet the recognized constitutional test that it inform the average person of common intelligence as to what is prohibited so that he need not speculate as to the statutory meaning, if the mere touching or squeezing of the genital area is to be construed as conduct proscribed by the statute. If the language does not meet that test, then it is unconstitutional. (See Franklin v. State, supra.) If a statute is to be held constitutional it must set forth in language which is relevant to today’s society and is understandable to the average citizen of common intelligence what conduct is proscribed. If any conduct other than that which has traditionally been considered as being proscribed by the statute, viz: Oral or anal sex, is 'to be construed as being in violation thereof then the statute, in such application, is clearly unconstitutional. As stated by the Supreme Court of Florida in Franklin v. State, supra, quoting authority:

“This statute provides a penalty for a crime, but fails to delineate what conduct will violate its terms.”

In my view the evidence does not sustain the conviction. Further, in my view, if the evidence adduced is to be construed as being proscribed by the statute (F.S. 800.02) then, as applied, the statute is unconstitutional. Although the Supreme Court of Florida has repeatedly upheld the constitutionality of the statute it has never done so under factual circumstances such as those presented in the Petition for Common Law Certiorari filed in this court.

I would vacate our prior order denying the Petition and issue an order to show cause, as above mentioned.


author: DANAHY, Judge.

text:
    BIO-MEDICAL APPLICATIONS OF CLEARWATER, INC., Petitioner, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, OFFICE OF COMMUNITY MEDICAL FACILITIES and Kidneycare of Florida, Inc., Respondents.
    No. 78-278.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 1979.
    Rehearing Denied April 27, 1979.

      Harold W. Mullís, Jr. and Mark D. Cohn, of Trenam, Simmons, Kempker, Scharf, Barkin, Frye & O’Neill, Tampa, for petitioner.
    Eric Haugdahl, Asst. Gen. Counsel, Tallahassee, for respondent Department of Health and Rehabilitative Services.
    Woodie A. Liles and Peter A. Knocke, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, for respondent Kidney-care of Florida, Inc.
   DANAHY, Judge.

On this petition for review of final administrative agency action, we are required to determine whether a material error in procedure occurred when a hearing officer refused to consolidate two opposing applications for approval of new chronic kidney dialysis facilities in the same health planning area. Instead, one application was heard and approved prior to the hearing scheduled on the second. The second applicant contends that consideration of the applications seriatim effectively denied it the opportunity to have its proposal considered. We are asked to apply the doctrine of Ashbacker Radio Corp. v. F.C.C., 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945) and rule that under these circumstances a comparative hearing should have been held at which the two applications could be considered simultaneously. We grant that request and find that the failure to conduct a comparative hearing in this case constituted a material error in procedure requiring that the matter be remanded for further agency action in accordance with our Administrative Procedure Act.

The proceedings here reviewed involve two state regulatory mechanisms prompted by the federal government in an effort to contain the high and rising cost of health care. Both are designed to achieve more efficient and economical uses of health services. One such mechanism is provided in Section 1122 of the Social Security'Act (42 U.S.C. Sec. 1320a-l). Under Section 1122, unless the designated planning agency of a state recommends a proposed capital expenditure for a health care facility, federal health care reimbursement payments (principally Medicare and Medicaid) with respect to services furnished at that facility will be reduced by the amount of certain depreciation and other expenses attributable to the unapproved capital expenditure. The purpose of Section 1122 is to assure that federal reimbursement payments are not used to support unnecessary capital expenditures made by or on behalf of health care facilities. The state’s designated planning agency is required to make findings as to whether a proposed capital expenditure is consistent with the standards, criteria, or plans developed pursuant to federal legislation to meet the need for adequate health care facilities in the area covered by the plan or plans so developed.

The other regulatory mechanism is the certificate of need program required under the National Health Planning and Resources Development Act of 1974 (42 U.S.C. Sec. 300k et seq.) in order for a state to qualify for financial grants under federal health programs. The certificate of need program must provide for review and determination of need prior to the time health services or health care facilities are offered or developed and provide that only those services and facilities found to be needed shall be offered or developed in the state. The program is to be administered by a state agency designated by the state as the state health planning and development agency. The Florida certificate of need program is contained in the “Health Facilities and Health Services Planning Act,” Sections 381.493-381.497, Florida Statutes (1977). Under the Act, no license may be issued to a health care facility which fails to receive a certificate of need.

The Department of Health and Rehabilitative Services (HRS) is Florida’s designated planning agency under Section 1122 to make recommendations with respect to proposed capital expenditures, and is the health planning and development agency charged with the responsibility of administering the certificate of need program. The procedure for obtaining a Section 1122 determination by HRS and for issuance of a certificate of need, and the criteria to be applied in the review of such applications, are combined by HRS to form one review process. Chap. 10-5, Fla.Admin.Code.

Rule 10-5.11 lists the criteria against which certificate of need applications and capital expenditure proposals are judged. These include the need that the population served or to be served has for the proposed health facility and the financial feasibility of the project. Data required to be contained in a certificate of need application and capital expenditure proposal (Rule 10-5.09) include not only a narrative description stating specific purpose and need, but a statement of total cost; documentation showing that the project is financially feasible and can be accommodated without unreasonable charges for services rendered; and documentation showing that the project will foster cost containment through improved efficiency and productivity, including promotion of cost effective factors such as, among other things, design/construction economics.

The proceedings before us for review began with the application of respondent Kid-neycare of Florida, Inc. (Kidneycare) for a certificate of need and capital expenditure approval to install a ten station kidney dialysis center in Clearwater. The application was first reviewed by the Florida Gulf Health Systems Agency, Inc. (HSA) which is the health systems agency for the health planning area consisting of Pinellas, Hills-borough, Manatee and Pasco counties. Review by the designated health planning agency is required by federal and state law and HRS rules. The HSA recommended approval, based on its determination that there would be a need for five kidney dialysis stations in its area by the end of 1978.

HRS, however, disagreed with that recommendation and disapproved the Kidney-care proposal in a letter of denial issued on December 13, 1977. The letter indicated that the HRS disapproval was based upon its determination that there was no demonstrated need for additional kidney dialysis stations in the HSA area. Kidneycare promptly requested a “fair hearing” pursuant to HRS Rule 10-5.10(8). Under the Health Facilities and Health Services Planning Act, under the National Health Planning and Resources Development Act of 1974, and under Section 1122 of the Social Security Act, a disappointed applicant for approval of a proposed medical facility must be afforded a hearing, Kidneycare’s hearing was scheduled for January 12,1978 before a hearing officer of the Division of Administrative Hearings of the Department of Administration.

In the meantime, petitioner Bio-Medical Applications of Clearwater, Inc. (BMA) had filed an application for a certificate of need and capital expenditure approval with respect to a twenty station kidney dialysis center in Clearwater. With respect to that application, the HSA made no recommendation. Accordingly, as provided in the HRS rules and the Health Facilities and Health Services Planning Act, after the expiration of sixty days the BMA proposal was deemed recommended for approval by the HSA. HRS, however, disapproved the BMA application also and on December 29, 1977 BMA requested a “fair hearing,” as Kidneycare had done sixteen days earlier. BMA’s hearing was scheduled for February 17, 1978.

Simultaneously with its request for a fair hearing, BMA filed a motion to intervene in the proceedings pertaining to the Kidney-care application. A hearing was held on that motion on January 9, 1978 (three days before the scheduled Kidneycare hearing). The motion to intervene was granted. BMA then requested that the proceedings pertaining to its application and that of Kidneycare be consolidated. When Kidney-care objected, the hearing officer summarily denied that motion. BMA also filed a motion requesting a continuance of the Kid-neycare hearing, stating as its reason that it wished to employ discovery rules available to an intervenor under applicable rules of procedure. That motion was also denied. It was renewed at the Kidneycare hearing on January 12, and again denied.

On February 14, 1978 the hearing officer issued his recommended order approving Kidneycare’s application for ten kidney dialysis stations. The order set forth the details of the Kidneycare project and contained the statement that “based on the evidence presented, it is found that [Kid-neycare’s] project is financially feasible and that the facility will be adequately staffed to provide effective health care.” The order further stated that “although [BMA] raised questions as to the economic feasibility of the proposed expenditure, and as to such matters as site selection, adequate staffing and efficiency of operation, [Kid-neycare] presented adequate evidence to establish that it would meet such criteria in the event of approval. Therefore, in view of the fact that [HRS] denied [Kidney-care’s] application solely on the basis of need, it is considered that only that aspect need be considered hereinafter.”

The hearing officer, based on the evidence and data submitted to him, found a need for “at least” five additional dialysis stations in 1978 and “at least” another five by mid-1979 in the HSA area and concluded that Kidneycare’s request for ten stations was warranted. He recommended issuance of a certificate of need to Kidneycare and approval of its capital expenditure proposal.

The day following the issuance of the hearing officer’s recommended order, HRS issued an order adopting the hearing officer’s recommendation, notwithstanding the provision in Sec. 120.57(l)(b)8, Florida Statutes (1977) that an agency shall allow each party at least ten days in which to submit written exceptions to the recommended order of a hearing officer.

The BMA hearing took place as scheduled on February 17, 1978, and resulted in the recommendation of the hearing officer that BMA be permitted to open seven kidney dialysis stations in Clearwater, as opposed to the twenty stations for which BMA had applied.

BMA filed its petition in this court, as provided in Section 120.68, Florida Statutes (1977), for review of the action of HRS in issuing a certificate of need to Kidneycare. Section 120.68(8) requires this court to remand for further agency action if it finds that either the fairness of the proceeding or the correctness of the action may have been impaired by material error in procedure or a failure to follow prescribed procedure. BMA asserts that material error in procedure occurred three times: first, in the denial of BMA’s motion for consolidation; second, in the denial of BMA’s motion for a continuance of the Kidneycare hearing; and third, in the failure of HRS to allow ten days for BMA to submit written exceptions to the hearing officer’s recommended order on the Kidneycare application. Our disposition of the first point makes it unnecessary to consider the other two.

In support of its position that denial of its motion to consolidate was material error, BMA contends that the doctrine pronounced in Ashbacker Radio Corp. v. F.C.C., supra, applies. In that case the Supreme Court held that where two bona fide applications for administrative approval are mutually exclusive, the grant of one without a hearing to both deprives the loser of the hearing to which he is entitled.

Both HRS and Kidneycare argue vigorously that the Kidneycare and BMA applications were not mutually exclusive because, they say, theoretically both applications could have been granted to the full extent since a need for thirty dialysis units might have been found. Kidneycare argues further that the requirements of Ashbaeker were met in this case because BMA “enjoyed full participation” in the Kidneycare hearing and thus was not denied a hearing altogether. These arguments are without merit.

In Ashbaeker, the Supreme Court laid down a general principle that an administrative agency is not to grant one application for a license without some appropriate consideration of another bona fide and timely filed application to render the same service; the principle, therefore, constitutes a fundamental doctrine of fair play which administrative agencies must diligently respect and courts must be ever alert to enforce. Railway Express Agency, Inc. v. United States, 205 F.Supp. 831 (S.D.N.Y.1962).

We agree that Ashbaeker should apply whenever an applicant is able to show that the granting of authority to some other applicant will substantially prejudice his application. Great Western Packers Express, Inc. v. United States, I.C.C., 263 F.Supp. 347 (D.Col.1966). In such a case fairness requires that the agency conduct a comparative hearing at which the competing applications are considered simultaneously. Only in that way can each party be given a fair opportunity to persuade the agency that its proposal would serve the public interest better than that of its competitor. Such an opportunity is not afforded by merely allowing an applicant to intervene in the proceedings pertaining to a competing application since the merits of the intervenor’s proposal are not thereby presented for comparative consideration.

We believe that the Ashbaeker doctrine clearly applies in the case before us. We are not the first to observe that where need is determined in accordance with a quantitative standard; that is, by number of units, a fixed pool of needed investments is thereby created. Opposing applicants necessarily become competitors for that fixed pool. Once the determination is made that there is a need for ten kidney dialysis units or stations, the granting of an application for those ten units automatically decreases need by that number and effectively denies another pending application to the extent of those ten units. That clearly is mutual exclusivity within the meaning of Ashbaeker. Cf. National Nephrology Foundation v. Dougherty, 138 N.J. Super. 470, 351 A.2d 392 (Super.Ct.App.Div.1976) (where it has been determined that one kidney dialysis facility is needed in an area, all applications for such a facility in that area compete for one certificate of need and the grant of one operates effectively as the denial of any other).

Although we can find no case applying Ashbacker to a certificate of need and capital expenditure review, more than one writer has drawn a parallel to proceedings before the Federal Communications Commission and the Civil Aeronautics Board, where comparative hearings are standard procedure whenever appropriate for the awarding of licenses in the communications field and in the awarding of airline routes. The Ashbacker court held that a comparative hearing was required where there were two applications pending before the Federal Communications Commission for licenses to operate broadcasting stations and only one such license could be awarded because the operation of two stations at the same location on the same frequency would result in intolerable interference. Ashbacker has also been applied in proceedings before the Civil Aeronautics Board and in a wide variety of other state and federal administrative proceedings involving the issuance of a license, certificate, or permit for entry into a particular market. Similarly, we hold that Ashbacker applies in proceedings for a certificate of need and capital expenditure determination, where approval is necessary for a new entry in the health care market of the health planning area.

Beyond Ashbacker, however, there are other considerations. We agree that a reviewing court, in considering whether a comparative hearing should have been afforded by an administrative agency, should recognize that there are always three competing interests involved: (1) the interest of the applicant in obtaining consideration of its proposal, recognized in the law requiring the agency to conduct a hearing before rejecting a proposal; (2) the interest of the agency [and the public] in establishing orderly procedures that permit agency decisions to be made in a timely and efficient manner; and (3) the interest of the public in assuring that the agency makes the best choice when several alternatives are available.

Ashbacker concerns the private right of the applicant, and we have applied the Ash-backer doctrine in BMA’s favor. As to the interest of HRS, we note that HRS has not defended the hearing officer’s refusal to consolidate on the ground that the administrative process would thereby have been unduly disrupted. HRS says only that under the rules of procedure of the Administration Commission, consolidation of separate matters is discretionary with the hearing officer and that the hearing officer did not abuse his discretion in denying BMA’s request for consolidation in view of the fact that the request was “late,” having been made only three days before the date set for the hearing on Kidneycare’s application. That response offers no reason to justify overriding the other interests here involved. Perhaps BMA could have and should have requested consolidation at an earlier point in time, but the burden of initiating comparative review does not lie solely with an interested applicant. There should be a self-starting mechanism within HRS.

The Ashbacker doctrine does not mean that administrative agencies are placed in a procedural straight]acket; it is for an administrative agency to devise means of achieving comparative consideration, including an appropriate mechanism for determination by the agency whether Ash-hacker requires a comparative hearing in a particular case. Railway Express Agency, Inc. v. United States, 205 F.Supp. 831 (S.D.N.Y.1962). Neither the federal law, nor the state law (including the Administrative Procedure Act), nor the HRS rules, contain provisions establishing specific procedures for accommodating the need for comparative hearings in certificate of need proceedings. We are confident that administrative procedures will be promulgated to deal with administrative problems in affording comparative hearings, if any such problems are anticipated.

As to the third interest involved, there is no question but that the public has an interest in containing the cost of health services. State of N. C. ex rel Morrow v. Califano, 445 F.Supp. 532 (E.D.N.C.1977). Therefore, it goes without saying that the public has an interest in the effectiveness of the certificate of need program and the Section 1122 determination. More than one observer has noted that the success of these mechanisms in limiting capital expenditures will be considerably improved by competitive review whenever such reviews are possible. Additionally, comparing alternatives would permit an analysis of cost effectiveness.

HRS apparently feels that its duty is only to react to each proposal as it is submitted and as if it were isolated from any other. The public would be better served if HRS discarded such tunnel vision. Since cost containment is the purpose and objective of the certificate of need program and the Section 1122 determination, we confess that we are perplexed by the proposition that two separate kidney dialysis centers in the same area, one providing ten stations and the other providing seven, are a more efficient means of health care delivery than one center containing seventeen stations. Perhaps that proposition can be entirely justified, but we believe the public interest demands at least a conscious decision based on comparative consideration rather than a result produced by a separate and isolated assessment of each application.

The issuance of a certificate of need to Kidneyeare is set aside and this matter is remanded for further proceedings consistent with this opinion.

OTT, Acting C. J., and RYDER, J., concur.

      . § 120.68(8), Fla.Stat. (1977).

      . The expression “fair hearing” is used in Section 1122 and is repeated in the HRS rules, but has no more legal meaning than simply the word “hearing,” which, presumably, implies fairness.

      . § 381.494(6)(e), Fla.Stat. (1977).

      . 42 U.S.C. § 300n-l(b)(8).

      . 42 U.S.C. § 1320a-l(b)(3).

      . Hearings on applications for certificates of need and capital expenditure proposals are conducted by that Division. Fla.Admin.Code Rule 10-5.12.

      .An intervenor is a party. Fla.Admin.Code Rule 28-5.02(1).

      . Bovbjerg, Problems and Prospects for Health Planning: The Importance of Incentives, Standards, and Procedures in Certificate of Need, 1978 Utah L.Rev. 83, 114 (1978).

      . Id at 114; Havighurst, Regulation of Health Facilities and Services by Certificate of Need, 59 Va.L.Rev. 1143, 1171 (1973).

      . Pierce, Obtaining Agency Consideration of a Competing Proposal: Alternatives to Ashbacker, 26 Kan.L.Rev. 185, 186 (1978).

      . Id at 199.

      . Fla.Admin.Code Rule 28-5.07 provides that if there are separate matters before a hearing officer which involve similar issues of law, the same agency fact or identity of parties, they may be consolidated. Any party may request consolidation or the hearing officer, on his own initiative, may order consolidation.

      . As BMA points out, only a party may request consolidation (Note 12, supra) and it did not become a party until its motion to intervene was granted, three days before the Kid-neycare hearing. However, presumably, BMA could have requested earlier action on its motion to intervene or have filed that motion earlier, or it could have requested consolidation as a party to its own application at the time that it requested a hearing on its application.

      . Bovbjerg, supra note 8; Budetti, Public Policy Issues Surrounding Certificate of Need, 1978 Utah L.Rev. 39, 41 (1978).


author: SCHEB, Judge.

text:
    MIDLAND-GUARDIAN COMPANY, Appellant, v. T. Richard HAGIN, A. R. Adkins, and Lou Anna Brooker, Appellees.
    No. 78-14.
    District Court of Appeal of Florida, Second District.
    March 7, 1979.
    As Modified On Denial of Rehearing April 20, 1979.

      Paul B. Johnson, of Gregory, Cours, Pan-iello, Johnson, Hays & Hoft, Tampa, for appellant.
    T. Richard Hagin, of Getzen & Hagin, Bushnell, for appellees.
   SCHEB, Judge.

This case presents two issues for our determination. The first is whether the Uniform Commercial Code authorizes an as-signee, who takes a note and retail installment contract “with recourse,” to replevy a mobile home from one who holds legal title subject to the assignee’s lien. The second question is whether the trial court abused its discretion in not allowing the plaintiff assignee to reopen its case after trial to introduce the note, retail installment contract, and assignment. We find that the Code does authorize replevin by such an assignee, and that under the circumstances the trial court abused its discretion in not allowing the plaintiff to reopen its case. We reverse.

In December 1971 appellee Adkins purchased a mobile home from Mustang Mobile Homes in Tampa, Florida. Adkins executed a promissory note in favor of Mustang in the amount of $6,882.96. The note was secured by a retail installment contract giving Mustang a security interest in the mobile home. Mustang assigned the note and retail installment contract to appellant Midland-Guardian “with recourse.”

In January 1975 the mobile home was sold at public sale pursuant to § 85.031(3), Fla.Stat. (1973) for unpaid storage charges owed by Adkins to appellee Brooker. The mobile home was purchased by appellee Hagin, who took title subject to the lien in favor of Midland-Guardian.

Just before the public sale Adkins had defaulted on the note while still owing $3,336.62. Midland-Guardian made demand for payment upon all appellees, without success, shortly after the sale.

On May 30, 1975, Midland-Guardian filed its complaint against appellees for replevin of the mobile home. On June 6 the trial court entered its order to show cause pursuant to § 78.065, Fla.Stat. (1975). A hearing was held on the matter, and on September 30 the trial court entered its order denying Midland-Guardian’s request for prejudgment replevin. The court held that Midland-Guardian was not entitled to replevin for two reasons. First, Hagin had title to the mobile home, and “one of the chief ingredients of ‘ownership’ in the property is the right to its possession.” Second, Midland-Guardian had “recourse back against” Mustang, and Mustang was liable as an unconditional endorser of Adkins’ note. For this latter proposition the court quoted from 28 Fla.Jur. Replevin § 10 (1968 rev.):

Where an assignment of a conditional sales contract and notes conveys all right and interest in the chattels and goods therein described, the assignee may maintain an action in replevin against the purchaser. But he may not maintain such an action where the assignment is not absolute and the assignor has retained an interest in the contract.
Since a mortgagee of personal property has no right of possession in the property, he may not maintain an action of replevin to recover its possession. Such a mortgagee’s remedy is foreclosure of the mortgage. (Footnotes omitted.)

The court granted Midland-Guardian twenty days to “file such pleadings ... as they deem appropriate.”

Midland-Guardian thereafter filed a second amended complaint again seeking replevin, or, alternatively, foreclosure of its lien on the mobile home. Prior to trial the court dismissed the claim for replevin.

The cause went to trial on Midland-Guardian’s foreclosure claim alone. After trial, but before judgment, Midland-Guardian asked to reopen its ease in order to formally offer into evidence the note, retail installment contract, and assignment. Midland-Guardian had neglected to introduce these documents at trial, though they were in the court file in connection with a pretrial motion. The court denied Midland-Guardian’s request to reopen its case, and on September 14,1977, entered judgment in favor of appellees. The judgment was predicated on the fact that Midland-Guardian did not “offer into evidence its alleged Promissory Note and Retail Installment Contract,” and did not prove that “it was the owner and holder thereof at the time of the trial.”

The Replevin Issue

Article 9 of the Uniform Commercial Code, found in § 679.101 et seq., Fla.Stat. (1975), deals with secured transactions. Section 679.102 provides:

(1) [T]his chapter applies so far as concerns any personal property and fixtures within the jurisdiction of this state:

(a) To any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper, accounts or contract rights; and also
(b) To any sale of accounts, contract rights or chattel paper.

(2) This chapter applies to security interests created by contract including pledge, assignment, chattel mortgage, chattel trust, trust deed, factor’s lien, equipment trust, conditional sale, trust receipt, other lien or title retention contract and lease or consignment intended as security * *.

A perusal of the retail installment contract here involved shows that it was intended to create a security interest as defined in § 671.201(37). Further, a mobile home falls within the definition of “goods” found in § 679.105(f). Under § 679.503 a secured party has the right to possession of the collateral upon default by the debtor. If the secured party cannot obtain possession peacefully without judicial process, he has the right to seek replevin under Ch. 78, Fla.Stat. (1975).

As noted previously, the trial court denied replevin for two reasons. The first reason was that appellee Hagin held legal title to the mobile home. This cannot stand. Section 679.202 explicitly states, “Each provision of this chapter with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debtor.” See also 4 R. Anderson, Uniform Commercial Code, § 9-202.3 at 141 (2d ed. 1971), where the author states, “The Code thus operates independently of whether the secured transaction in question creates a lien in favor of the secured creditor or gives him title.”

The trial court’s second reason for denying replevin, i. e., that Midland-Guardian’s assignment was with recourse, is also invalid. As mentioned previously, the trial court relied upon a quote from 28 Fla.Jur. Re-plevin § 10 (1968 rev.) for its holding in this regard. Yet footnote 15 of this same section warns:

The Uniform Commercial Code, effective in this state January 1,1967, has modified the law in the area of conditional sales and chattel mortgages. In the area of replevin, care must be taken in determining the present applicability of the older authorities by comparison with the present UCC provisions. .

The provisions of Article 9 make no distinction between assignments made with recourse and those made without it. See §§ 679.318 and .405. In fact, such a distinction would do violence to the Code’s philosophy of free assignability. See § 679.318; American Bank of Commerce v. McAlester, 555 P.2d 581 (Okl.1976). Since a secured party has the right to replevin under § 679.503, an assignee of the security agreement must have the same right.

Though the trial court erred in denying replevin for the reasons stated in its order, we do not hold that Midland-Guardian is necessarily entitled to either prejudgment replevin or replevin after judgment. The hearings below were not recorded, and a reconstructed record is before this court. Unfortunately this reconstructed record is inadequate to allow us to determine if prejudgment replevin should have been granted, and the issue of replevin after judgment was not tried.

The Abuse of Discretion Issue

Midland-Guardian also contends that the trial court abused its discretion by not allowing it to reopen its case to introduce the note, retail installment contract, and assignment. In support of the trial court appellees cite Canada Dry Bottling Co. v. K. M. A., Inc., 349 So.2d 846 (Fla. 2d DCA 1977), where we held the circuit court, acting in its appellate capacity, erred in remanding a case to the county court to allow a plaintiff to introduce additional evidence to make its case. We think appellees’ reliance upon Canada Dry is misplaced. Here the documents that Midland-Guardian sought to belatedly introduce were already in the court file, and copies had been attached to the complaints. Further, unlike Canada Dry, the plaintiff here sought to reopen the case before final judgment was entered. We think under these circumstances the trial court abused its discretion in not allowing Midland-Guardian to reopen its case. See Akins v. Taylor, 314 So.2d 13 (Fla. 1st DCA 1975).

Accordingly, we reverse the judgment in favor of appellees and remand this cause for further proceedings consistent with this opinion.

GRIMES, C. J., and BOARDMAN, J., concur.

      . The court did not state why it was dismissing the replevin claim. However, the record indicates that the trial judge determined that the pleading failed to state a cause of action for replevin. Our review of the pleading shows that it contains sufficient allegations to comply with Section 78.055, Florida Statutes (1975).

      . It should be noted that the request by Midland-Guardian was made only after the trial judge furnished written notice to counsel that he was concerned about the effect of the plaintiffs failure to have offered such documents into evidence during the trial.


text:
    Bartholomew ENRIGHT et al., Appellants, v. SEA TOWERS OWNERS’ ASSOCIATION, INC., a Florida Corporation, Appellee.
    No. 78-1149.
    District Court of Appeal of Florida, Second District.
    March 7, 1979.
    Rehearing Denied April 26, 1979.

      Edward A. Linney, St. Petersburg, for appellants.
    Richard A. Zacur of Mensh, Mensh, Zacur & Graham, St. Petersburg, for appellee.
   SCHEB, Judge.

Appellants, owners of units in the Washington Towers Condominium, brought a class action seeking to force the removal of a building from the common area of their condominium. Appellants alleged in their complaint that the Washington Towers Declaration of Condominium prohibited the placement of the building upon their common area by appellee Sea Towers Owners’ Association. The trial court refused to order removal of the building and entered final judgment for appellee. We reverse.

Washington Towers is one of nine separate condominiums in the Sea Towers condominium complex. Sea Towers Owners’ Association (STOA) is the governing federation of the nine condominium associations. STOA acts through a council composed of the board of governors of each condominium association. STOA’s council with the concurrence of the Board of Governors of Washington Towers Association (WTA), voted to move an administration building from the center of the complex to the common area in front of Washington Towers.

The Washington Towers Declaration of Condominium gives each unit owner an interest in the common area that adjoins the building. Thus, appellants argue, any actions which affect their common area must be approved in the manner provided by their declaration of condominium. Subsections C and D of Paragraph 21 of that declaration provide:

C. The said Association is and the same is hereby empowered to give, grant, convey and enter into agreements with another Condominium or Condominiums, creating walkways, streets, easements, license, rights-of-ways, sewer lines and lift stations, water mains and other utility conduits or easements over, on, upon and through that portion of the common elements of this Condominium which is without the building or buildings or any part thereof, situated upon the real property described in paragraph 1, hereof. That, as a condition thereto, and in consideration of such grants, conveyances or agreements, each such Condominium which is or shall become a party thereto shall assume as a common expense their pro-rata share of the cost and expenses of the maintenance thereof. That such cost and expense shall be an equal sum to each Condominium parcel contained in all of the Condominiums having an interest therein.
D. Except as set forth in sub-paragraph C above, all grants, conveyances, agreements or otherwise, entered into by virtue of paragraph 21 of the Declaration of Condominium, shall be approved by not less than the majority of the Board of Governors of the Association and written approval and ratification of 75% of the members entitled to vote. That the agreements, conveyances, or otherwise, should contain a provision certified to by the Secretary of the Association that the same is ratified and approved by a majority of the Board of Governors of the Association. (Emphasis added.)

Appellants contend that under Subsection D STOA had to obtain approval of WTA’s Board of Governors and written ratification of 75% of WTA’s members to move the building onto the common area.

STOA admits that it did not obtain written approval of 75% of WTA’s members, but contends that such approval was unnecessary. STOA argues that the movement of the building onto the common area was accomplished pursuant to a “license” granted by WTA under Subsection C, which does not require written approval of WTA’s members.

Viewing the term “license” in context of its use, we hold that the exception of Subsection C is not broad enough to allow the placement of the building on the common area. This limited exception, though perhaps not artfully worded, was apparently meant to apply only to utility rights-of-way and means of ingress and egress. The necessity to facilitate such grants is obvious. Placement of the building on the common area, on the other hand, effectively deprives the residents of Washington Towers of the use of that area. From our study of the Washington Towers Declaration of Condominium we do not think that it was the intent to allow such utilization of the common area without the approval of 75% of WTA’s members.

We do not address the issue of whether appellants may be entitled to relief; rather, we reverse and remand this cause for further proceedings consistent with this opinion.

BOARDMAN, A. C. J., and OTT, J., concur.

      . Appellants contend that this vote was irregular and therefore void. In light of our disposition of the cause on other grounds, it is unnecessary that we reach this point.


author: BOARDMAN, Acting Chief Judge.

text:
    Helen S. LENTON, Appellant, v. Charles T. LENTON, Appellee.
    No. 78-368.
    District Court of Appeal of Florida, Second District.
    March 21, 1979.
    Rehearing Denied April 27, 1979.

      Kevin K. Broderick of Wendel, Broderick & Chritton, Lakeland, for appellant.
    Christy F. Harris and William M. Mi-dyette, III of Christy F. Harris, Lakeland, for appellee.
   BOARDMAN, Acting Chief Judge.

Helen Lenton appeals the trial court’s order denying her petition to increase alimony payments. She petitioned for modification because of a dramatic improvement in her former husband’s financial condition. After careful study of the record, we find that there is ample evidence to support an increase in alimony to appellant/wife, and we hold it was an abuse of discretion for the trial court to deny the relief prayed for. We reverse.

The facts are not in material dispute. At the time the marriage of the parties was dissolved in January, 1974, the wife’s financial affidavit indicated that her monthly expenses, other than those connected with providing and maintaining the marital home, were approximately $1,650. However, in reliance on the husband’s financial affidavit, which indicated that he would have an income of $41,000 and had assets of $5,000, Mrs. Lenton agreed to accept $500 per month alimony, $400 per month child support for the parties two minor children, and use of the marital home which was to be insured and maintained by Dr. Lenton.

Dr. Lenton’s financial affidavit, upon which Mrs. Lenton had relied, proved to be inaccurate. In the three and one-half years between the dissolution and the time the petition for modification was filed, Dr. Len-ton earned an average of $66,000 annually, and his assets increased to $225,000.

At the hearing on the petition the trial judge found that Mrs. Lenton’s financial needs had not changed since the dissolution, and he refused to increase the $500 monthly alimony. This was error.

In considering modification of alimony the trial court should consider the intent of the parties in making the original support agreement, the parties’ previous and present standards of living, and their previous and present earning capacities. Scott v. Scott, 285 So.2d 423 (Fla. 2d DCA 1973). Here the wife agreed to accept a decrease in her standard of living at the time of dissolution because the husband apparently did not have the means to support her in the same style she had enjoyed during the marriage. However, she should not be held to this agreement when the projection of limited means is not accurate.

A change in circumstances of only one of the parties is sufficient to justify a modification of alimony. Meltzer v. Meltzer, 356 So.2d 1263 (Fla. 3d DCA 1978); Sherman v. Sherman, 279 So.2d 887 (Fla. 3d DCA 1973); Rogers v. Rogers, 229 So.2d 618 (Fla. 2d DCA 1969). This rule is particularly appropriate where, as here, the needs of the spouse receiving alimony were not initially met.

The income which the husband actually earned was approximately 60% greater than the estimate relied upon by the wife. The cause is remanded with instructions that the $500 per month alimony be increased by 60% to $800 per month. The additional payments are to be commenced as of April 5, 1977, the date the petition for modification was filed. The trial court’s ruling is otherwise affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED with directions consistent with this opinion.

SCHEB and OTT, JJ., concur.


author: PER CURIAM.

text:
    Carl A. PURVIS and James Robert Prescott, Jr., Appellants, v. STATE of Florida, Appellee.
    Nos. 78-974, 78-975.
    District Court of Appeal of Florida, Second District.
    March 23, 1979.
    Rehearing Denied April 30, 1979.
    J. Hardin Peterson, Jr. of Peterson, Myers, Craig, Crews, Brandon & Mann, and Clinton A. Curtis, Lakeland, for appellant Purvis.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant Prescott.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellants were convicted of (1) burglary, (2) grand larceny, (3) possession of more than five grams of marijuana, and (4) possession of more than a hundred pounds of marijuana with intent to sell. Appellants were sentenced to five-years imprisonment on each of the first three convictions, and fifteen years on the fourth. The first three sentences were to run consecutively, and the sentence on the fourth conviction was to run concurrently to the sentences on the first three.

Appellants attack their convictions on several grotinds. We have examined their contentions carefully, and find only one point which merits discussion. Appellants contend that they should not have been sentenced for possession of more than a hundred pounds of marijuana with intent to sell and possession of more than five grams, since both charges were based on possession of the same marijuana. We agree.

It was necessary for the state to establish that appellants possessed more than five grams of marijuana in order to show that they possessed over a hundred pounds with intent to sell. Therefore, possession of more than five grams was a category three lesser-included offense under Brown v. State, 206 So.2d 377 (Fla.1968). A defendant cannot be sentenced for a lesser-included offense as well as the greater offense. § 775.021(4), Fla.Stat. (1977); Ennis v. State, 364 So.2d 497 (Fla. 2d DCA 1978).

Accordingly, we vacate each appellant’s conviction and sentence for possession of more than five grams of marijuana. Otherwise, we affirm.

SCHEB, Acting C. J., and OTT and DAN-AHY, JJ., concur.


author: HUBBART, Judge.

text:
    JUVENILE DIABETES RESEARCH FOUNDATION, Appellant, v. Dr. Steven RIEVMAN, Vivi DeArmas, and Marietta Tye, Appellees.
    No. 77-2436.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Rehearing Denied May 16, 1979.

      Martin D. Kahn, North Miami, Susan Goldman, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Rash & Katzen, South Miami, for appellees.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   HUBBART, Judge.

The central issue raised by this appeal is whether in an action for breach of an employment contract [brought by an employee for an alleged wrongful discharge prior to completion of the contract] the defendant employer [if he chooses to raise the issue] must plead as an affirmative defense under Fla.R.Civ.P. 1.110(d) and prove at trial as a set-off on damages what the plaintiff employee actually earned, or could have earned through the use of due diligence at other employment of like nature, to mitigate the employee’s damages for the remainder of the term of employment under the contract. Based on the authority and reasoning which follow, we hold that the defendant employer has the burden: (1) to plead the above as an affirmative defense in the nature of a set-off on damages, and (2) to prove at trial such defense by the greater weight of the evidence. Accordingly, we reject the defendant employer’s contentions on this appeal, including others unrelated to this issue, and affirm.

A

The facts of this case are as follows. Sometime in February 1975, one of the plaintiffs herein Dr. Steven Rievman sent a letter to the defendant Robert Kronowitt as executive director of the defendant Juvenile Diabetes Research Foundation suggesting the development of an educational or counseling facility for diabetics in Broward County, Florida. The plaintiff Rievman thereafter met with the defendant Kronow-itt on several occasions in which plans were formulated for a Diabetes Life Center. The defendant Foundation agreed to establish such a center and to hire the plaintiff Dr. Rievman as Director and the plaintiffs Vivi DeArmas and Marietta Tye as employees at the center. Salary terms and conditions of employment as to each plaintiff were also agreed upon. Thereafter, some six months went by during which the defendant Foundation experienced delays in obtaining the necessary funding to open the diabetes center. The starting date on the opening of the center and the plaintiffs’ consequent employment were set back on several occasions.

Finally, on February 15,1976, the defendant Kronowitt notified the plaintiff Riev-man by telephone that the center would open and the plaintiffs could begin work the next day. There was testimony that during this telephone conversation other employment terms were agreed upon which among others was a condition that the plaintiffs’ employment at the center be for one year. The next day The Diabetes Life Center opened as planned and the plaintiffs commenced work. The plaintiffs worked at the center and received payment from the defendant Foundation for their work as agreed upon through May 1976 when the center was closed and the plaintiffs discharged. Under the balance of the unexpired employment contract subsequent to such discharge, each of the plaintiffs were entitled to an ascertained amount of money in salary; no unpaid balance was due on any of the plaintiffs’ salary, however, for services rendered prior to the discharge.

There is evidence that the following month in June the plaintiffs formed a corporation called The Diabetes Life Center, Inc. which did work similar to that of the defunct center and for which donations were obtained. It is not clear, however whether the plaintiffs were employed by the new corporation, and, if so, at what salary or for what length of time.

On September 28, 1976, the plaintiffs filed an action in the Circuit Court for the Eleventh Judicial Circuit of Florida for breach of contract against the defendant Foundation, which was later amended to include the defendant Kronowitt. The defendants filed an answer denying the claim and asserting as their sole affirmative defense the statute of frauds; mitigation of damages was never pled by the defendants as an affirmative defense. The defendant Foundation filed a motion for summary judgment on the ground that the oral contract herein was unenforceable under the statute of frauds, which motion was denied.

The cause came on for a non-jury trial in which the facts as previously detailed were established. The defendants moved for an involuntary dismissal at the close of all the evidence and urged that the plaintiffs had failed to establish that they had properly mitigated their damages as required by law. The trial court impliedly denied the motion by entering a final judgment in favor of the plaintiffs and against the defendant Foundation in the amount of the salaries the plaintiffs would have earned on the unexpired term of their employment contract; the claim against the defendant Kronowitt was dismissed. A petition for rehearing was subsequently denied; the defendant Foundation appeals.

B

The law is clear that the purpose of an award of damages in a breach of contract action is to place the injured party in the same financial position as he would have occupied if the contract has been fully performed. Hodges v. A. P. Fries & Co., 34 Fla. 63, 69, 15 So. 682, 684 (1894); Popwell v. Abel, 226 So.2d 418, 422 (Fla.4th DCA 1969); First National Insurance Agency, Inc. v. Leesburg Transfer & Storage, Inc., 139 So.2d 476, 482 (Fla.2d DCA 1962). It is, therefore, the established law of this state that in an action for breach of an employment contract [brought by an employee for an alleged wrongful discharge prior to completion of the contract] the prima facie measure of damages is the contract price of salary or wages for the unexpired term of the contract together with any unpaid balance due under the contract for services rendered before the wrongful discharge. Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928); 2 Fla.Jur.2d “Agency and Employment” § 134, p. 315 (1977). The plaintiff employee has the burden of proof at trial in such action to establish his damages as thus measured by the greater weight of the evidence. McCormick on Damages § 159 (1935).

These prima facie damages, however, are subject to reduction upon proof of an amount which the employee actually earned, or could have earned through the use of due diligence in other employment of like nature, for the remainder of his term of employment under the contract. Southern Keswick, Inc. v. Whetherholt, 293 So.2d 109 (Fla.2d DCA 1974). In this connection, it is often said that the plaintiff employee has a duty to mitigate his damages by reasonably seeking other employment of like nature subsequent to the breach of contract; the penalty for failing to comply with that duty is a reduction in his recoverable damages in the amount he could have earned had he complied with such duty. Punkar v. King Plastic Corp., 290 So.2d 505, 508 (Fla.2d DCA 1974). By the overwhelming weight of authority in this country, the defendant employer has the burden of proof at trial to establish the above reduction in mitigation of damages as thus measured by the greater weight of the evidence. 11 Williston on Contracts § 1360 (3d ed. Jaeger 1968) and cases collected; 5 Corbin on Contracts § 1039, p. 251 (1964) and cases collected; McCormick on Damages 627-628 (1935) and cases collected; 3 Sutherland on Damages § 693, p. 2560 (1916) and cases collected; Annot., 17 A.L.R.2d 968, 978-982 (1951) and cases collected; Annot., 134 A.L.R. 242, 243-254 (1941) and cases collected; Ballard v. El Dorado Tire Co., 512 F.2d 901 (5th Cir.1975) (applying Florida law).

In our view, this result rests on sound ground because the failure to mitigate damages, or, indeed, the successful effort to do so, does not defeat the plaintiffs’ right to recovery, but only reduces the amount of his recoverable damages. As such, it does not make sense to place the burden of proof on such issue on the plaintiff employee for if he had such a burden, the failure of proof thereon would necessarily require a dismissal of the plaintiff’s claim at trial — a result which our law does not permit. It is, therefore, clear that the mitigation of damages issue is more properly considered a defensive matter in the nature of a set-off on damages which must be specifically pled by the defendant employer as an affirmative defense under Fla.R.Civ.P. 1.110(d) and proved at trial by the greater weight of the evidence. Annot., 44 A.L.R.3d 629, 639 (1972).

C

In the instant case, the plaintiffs clearly established a prima facie case of damages for breach of a contract herein by proving what the contract price of salary was for each plaintiff on the unexpired term of the contract subsequent to the wrongful discharge. It was thereafter incumbent upon the defendant Foundation to prove, if it could, as a set-off on damages what the plaintiffs actually earned, or could have earned through the use of due diligence from other employment of like nature, for the remainder of the term of employment under the contract. Absent such proof, the plaintiffs were entitled to judgment on the prima facie measure of damages as thus established.

Our review of the record reveals that the defendant Foundation never pled mitigation of damages as an affirmative defense nor proved such defense at trial by the greater weight of the evidence. There is evidence, which the defendant Foundation established on cross-examination, that the plaintiffs subsequent to their discharge formed another corporation which apparently did work similar to that of the defendant Foundation. All agree, however, that beyond that there is a complete failure of proof on the mitigation issue. There is no evidence as to whether the plaintiffs were employed by the new corporation, and, if so, for what length of time and at what salary. There is also no evidence that the plaintiffs failed to perform their duty to mitigate damages by seeking other employment of like nature.

The defendant Foundation contends, however, that it was entitled to an involuntary dismissal of the plaintiffs’ action because of the above failure of proof on mitigation of damages. We cannot agree. Under the existing law, such a failure of proof could never defeat the plaintiffs’ claim. On the contrary, it was the burden of the defendant Foundation to plead and prove mitigation of damages as a set-off which it failed to do. As the plaintiffs clearly established a prima facie case of damages for breach of the contract herein and the defendant Foundation presented insufficient evidence to reduce the damages award, it is our view that the trial court was eminently correct in entering the final judgment from which this appeal is taken.

D

We have examined the other contentions raised by the defendant Foundation on this appeal and find them to be without merit. Federated Department Stores, Inc. v. Planes, 305 So.2d 248 (Fla.3d DCA 1974); Dade National Bank of Miami v. Kay, 131 So.2d 24 (Fla.3d DCA 1961). In particular, we find that there was sufficient evidence upon which the trial court could have concluded that all the terms of the one year oral contract of employment with the plaintiffs were not reached until one day prior to the beginning of performance under the contract. As such the oral contract of employment was clearly not barred by the statute of frauds. 3 Williston on Contracts § 502 (3d ed. Jaeger 1960); 2 Corbin on Contracts 556-558 (1950). The final judgment appealed from is, accordingly, affirmed.

Affirmed.

      . Rubin v. Shapiro, 198 So.2d 854 (Fla.3d DCA 1967), does not reach a contrary result. In our view, this case is confined solely to suits by public employees for re-instatement and back pay. It is not concerned, as here, with a suit by an employee for breach of an employment contract and therefore any rules announced therein can have no application to the measure of damages and burden of proof in this action.


text:
    Roberto DeBENEDICTIS and Vincent Carola, Appellants, v. STATE of Florida, Appellee.
    No. 78-795.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1979.
    Rehearing Denied May 23, 1979.
    Jerome M. Rosenblum, Hollywood, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment and sentence entered by the Circuit Court of Broward County. Appellants were tried and found guilty of four counts of grand larceny by fraudulent misrepresentation and four counts of criminal attempt. Appellants allegedly ran a fraudulent telephone solicitation operation whereby donations were sought for various “police” organizations and publications.

Appellants have raised eight points for consideration on appeal. We have considered each of these points on the basis of the briefs and record filed herein and find that appellants have failed to demonstrate reversible error. The judgments and sentences below are, therefore, affirmed.

ANSTEAD and BERANEK, JJ., and SIEGENDORF, ARDEN M., Associate Judge, concur.


text:
    Dominic ZECCOLA, Appellant, v. Ralph P. EZZO, Individually and Ezzo & Garel, P. A., Appellees.
    No. 78-957.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Rehearing Denied May 15, 1979.
    Cagle & Rice and Lawrence C. Rice, South Miami, for appellant.
    Wicker, Smith, Blomquist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The defendant conclusively established, without genuine issue of material fact, that the plaintiff was on actual notice of the basis of his claim for legal malpractice more than two years before the present action was filed. The summary judgment entered below for the defendant because of the bar of the statute of limitations, Section 95.-ll(4)(a), Florida Statutes (1975), is therefore affirmed. See Robinson v. Sparer, 365 So.2d 438 (Fla. 3d DCA 1978); Steiner v. Ciba-Geigy Corp., 364 So.2d 47 (Fla. 3d DCA 1978); compare Green v. Bartel, 365 So.2d 785 (Fla. 3d DCA 1978); Rosen v. Sparber, 369 So.2d 960 (Fla. 3d DCA 1978).

Affirmed.


text:
    Carlos Enrique KNAPP, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1299.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Rehearing Denied May 16, 1979.

      Brian R. McComb, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Appellant was arrested and charged with violating two conditions of his probation. After a hearing the trial court revoked the probation and sentenced appellant to five years in the state prison.

Appellant urges reversal on the grounds that there was a violation of his due process rights in connection with his probation violation hearing. It is appellant’s contention that he was not given proper and adequate notice of the hearing and that the court erred in denying his motion for a continuance thereby depriving appellant of an opportunity to produce witnesses and otherwise prepare a defense to the charges. We find merit in appellant’s contention and reverse.

Reversed. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Mato v. State, 278 So.2d 672 (Fla. 3d DCA 1973); Hines v. State, 358 So.2d 183 (Fla.1978).

Reversed and remanded for further proceedings.


text:
    HART PROPERTIES, INC., Appellant, v. Leon GARFIELD, Appellee.
    No. 78-1393.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Rehearing Denied May 15, 1979.
    George & Thompson and Charles K. George, Jeanne Heyward, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and William S. Frates, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The defendant-employer appeals from a judgment entered against it on a jury verdict for the plaintiff in an action for breach of an employment contract. Contrary to the appellant’s contentions, we find no error either in the trial court’s rulings in excluding proffered evidence, Perper v. Edell, 44 So.2d 78 (Fla.1949); Atlantic Coast Line R. Co. v. Ganey, 125 So.2d 576, 578-579 (Fla. 3d DCA 1960); in the jury instructions, see Atlantic Coast Line R. Co. v. Shouse, 83 Fla. 156, 91 So. 90, 99 (1922); DeBold v. Ocean Reef Club, Inc., 368 So.2d 95 (Fla. 3d DCA 1979) (Case no. 78-1073, opinion filed March 6,1979); or in the denial of the defendant’s motion for new trial on the asserted ground that the verdict was contrary to the manifest weight of the evidence. Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187 (Fla.1977); see McCutcheon v. National Acceptance Corp., 143 Fla. 663, 197 So. 475 (1940). Consequently, the judgment below is

Affirmed.


author: SCHWARTZ, Judge.

text:
    In re ESTATE of Fred COHEN and Flagship First National Bank of Miami Beach, a Banking Corp., as Executor and/or Administrator of the Estate of Fred Cohen, Appellant, v. Chet HOLLAND, Appellee.
    No. 78-1429.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Rehearing Denied May 15, 1979.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Clifford B. Wentworth, Thomas & Thomas and Frank Thomas, Hollywood, for ap-pellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The defendant, the executor of the estate of Fred Cohen, appeals from a final judgment entered against the estate upon a jury verdict for the plaintiff, Chet Holland, in an action for personal services rendered by Holland as a marine surveyor and consultant. The appellant primarily argues that there is no competent evidence that Holland was employed by Cohen personally during his lifetime, rather than by one or more corporate entities in which Cohen had interests and for which he may have been acting in hiring the plaintiff. We disagree. Our review of the record reveals that there was substantial evidence from which the jury could have, as it did, properly concluded that Cohen contracted in his individual capacity and thus that he was individually liable upon Holland’s employment agreement. Smith v. Texas Co., 111 Fla. 762, 149 So. 585 (1933); Financial Fire & Casualty Co. v. Southmost Vegetable Cooperative Assn., 212 So.2d 69 (Fla.3d DCA 1968), cert. denied, 219 So.2d 701 (Fla.1968); see Bryce v. Bull, 106 Fla. 336, 143 So. 409 (1932); I. W. Phillips & Co. v. Hall, 99 Fla. 1206, 128 So. 635 (1930). Since this is the case, we of course have no authority to interfere with the jury’s determination. Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187 (Fla.1977).

Affirmed.

      . The contract was an oral one, and Holland himself could not testify as to his negotiations with Cohen because of the Dead Man’s Statute, Sec. 90.05, Fla.Stat. (1975).


text:
    Robert BAKER, Appellant, v. BENNETT M. LIFTER, INC., a Florida Corporation, Appellee.
    No. 78-1437.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Rehearing Denied May 15, 1979.
    Herman Cohen, Miami, for appellant. Ainslee R. Ferdie, Coral Gables, for ap-pellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The plaintiff appeals from an adverse summary judgment in an action for breach of an “employment” contract under which the plaintiff was to operate the cocktail lounge at the Marco Polo Hotel, which is owned by the defendant-appellee. The basis of the ruling below was stated in the summary judgment as follows:

“. . . paragraph 13 of the agreement in question provides either party with the right to terminate the contract for any reason by giving the other party three (3) days written notice, and . there is no genuine issue of material fact that the Defendant, BENNETT M. LIFTER, INC., elected to terminate the contract in question, . . . ”

We reverse because the record demonstrates that although the defendant may have “elected” or desired to terminate the agreement, there remains, at the least, a triable issue as to whether, prior to the alleged breach, it gave Baker the three day written notice required by the terms of the agreement itself. See Bernecker v. Bernecker, 60 So.2d 399 (Fla.1952); Cadillac LaSalle Co. of Palm Beach, Inc. v. Claude Nolan, Inc., 118 Fla. 250, 158 So. 883 (1935); cf. Saul J. Morgan Enterprises, Inc. v. 57th Avenue Development Corp., 305 So.2d 18 (Fla. 3d DCA 1974), cert. denied, 314 So.2d 586 (Fla.1975); 7 Fla.Jur. Contracts § 174 (1956). Since the defendant likewise did not conclusively establish either (a) that the written notice requirement had been waived, Ramagli Realty Co. v. Speier, 110 So.2d 71 (Fla. 3d DCA 1959), cf. Thompson v. Gross, 353 So.2d 191 (Fla. 3d DCA 1977); (b) that it had not in fact breached the agreement by interfering with the plaintiff’s ability to perform, Gulf American Land Corp. v. Wain, 166 So.2d 763 (Fla. 3d DCA 1964); or (c) that the plaintiff had sustained no damages as a result of the alleged breach, we conclude that summary judgment was inappropriately entered, Holl v. Talcott, 191 So.2d 40 (Fla.1966); Beckerman v. Greenbaum, 347 So.2d 141, 142 (Fla. 2d DCA 1977); and the cause is therefore remanded for trial.

Reversed and remanded.