author: BASKIN, NATALIE, Associate Judge.

text:
    Gordon R. GROSS, not Individually but as Trustee of Dominion Mortgage and Realty Trust, a Massachusetts Business Trust, Appellant, v. CITY OF RIVIERA BEACH, a Municipal Corporation, et al., Appellees.
    No. 77-1269.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1979.
    Rehearing Denied March 9, 1979.

      Sidney A. Stubbs, Jr. of Jones, Paine & Foster, P. A., West Palm Beach, and Larry A. Klein, West Palm Beach, for appellant.
    Timothy P. McCarthy of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, Palm Beach, for appellees/intervenors.
    Allan V. Everard, Riviera Beach, for ap-pellee/city.
   BASKIN, NATALIE, Associate Judge.

This is an appeal from a Final Judgment denying equitable relief to Appellant-Mortgagee and enjoining the City of Riviera Beach from issuing a building permit for completion of Sandpiper Villas Condominium until its conforms to zoning ordinance requirements for parking.

We affirm the Final Judgment.

Six weeks after issuing a building permit in December, 1972 to the owner-developer of land on which a forty-four unit building was to be constructed, the City of Riviera Beach enacted a new zoning ordinance reducing density. Appellant entered a construction loan agreement of $1,275,000 requiring a valid building permit and compliance with governmental regulations as conditions precedent to the loan. The construction loan agreement provided that if construction ceased for ten days or the property was abandoned by the owner, Appellant had the right, coupled with an irrevocable power of attorney, to enter and complete the project. It was not, however, obligated to do so. The loan was secured by a mortgage.

Construction commenced under the 1972 building permit and continued until April or May of 1974. In the interim, the City of Riviera Beach enacted the new parking and landscape ordinances.

When construction was approximately ninety percent complete, Appellant-Mortgagee filed for foreclosure. Judgment was entered some seventeen months later on April 12, 1976, after vigorously contested litigation. Appellant purchased the property for $10,000 at the foreclosure sale. No effort had been made by Appellant to maintain or extend the building permit.

The City then advised Appellant the 1972 building permit was void since the project did not conform with revised zoning ordinances. A new building permit was issued in June, 1976, conditioned upon Appellant obtaining variances before a certificate of occupancy would be issued. Variances, opposed by adjoining property owners, Inter-venors in this cause, were denied based upon inadequate parking and lack of safety in backing onto public streets.

The trial court predicated its denial of equitable relief and injunction upon its finding that the construction loan agreement gave Appellant the absolute irrevocable right to take possession of the project should the borrower cease construction for a period of ten days or in the event the borrower abandoned the project. The trial court found that construction did cease and the project was abandoned for a period substantially in excess of one continuous year during which Appellant made no effort to exercise its rights and take possession of the property to complete the project. The trial court also found that Appellant allowed the original building permit to expire creating the situation leading to this litigation by its own inaction.

Appellant contends on appeal that as Mortgagee it had no proprietary interest in the condominium by virtue of its construction mortgage, but was merely the holder of a lien on the property, relying on the issuance of the original building permit in making its construction loan and expenditures of over a million dollars. It maintains it was under no obligation to complete the project and that it did not have the right to take possession under Florida law. Appellant contends the City should be equitably estopped from requiring it to bring the project in compliance with revised ordinances which would render marketing unfeasible. Appellant asserts that lengthy litigation prior to foreclosure indicated that although construction ceased, it did not abandon the project, and that undue hardship would result from the decision of the trial court effectively forfeiting the entire project.

Although Appellant was merely the holder of a lien on the property under Florida Statute 697.02, it had the right to complete construction under its contract.

If Appellant were reluctant to proceed under the contract, it still had a sufficient basis to request permission from the court either to extend the building permit, or to enter and renew construction to prevent waste.

In Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla.1976), the court stated:

“. . . the doctrine of equitable es-toppel will preclude a municipality from exercising its zoning power where . ‘[A] property owner (1) in good faith (2) upon such act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he acquired. Salkolsky v. City of Coral Gables, 151 So.2d 433 (Fla.1963).’ ”

Under the terms of the construction loan agreement, Appellant had an irrevocable power of attorney in the event construction ceased for ten days to enter upon the land and complete the project without notice to the borrower. Failure to exercise its contractual power caused Appellant’s building permit to lapse, not good faith reliance upon governmental acts or omissions.

It is the prevailing rule in this jurisdiction that an appellate court cannot reevaluate the evidence and substitute its judgment for that of the trial court. Hollywood Beach Hotel Co., supra.

Because we agree with the trial court that Appellant’s damage resulted from its own inaction, it is not necessary for us to determine whether Appellant is able to seek equitable estoppel as an owner to continue a nonconforming use.

The decision of the trial court produced a harsh and expensive result for the condominium owner, but Appellant’s hardship was self-created and could have been avoided by appropriate recourse to the courts. “When the owner himself by his own conduct creates the exact hardship which he alleges to exist, he certainly should not be permitted to take advantage of it.” Josephson v. Autrey, 96 So.2d 784 (Fla.1957).

The cessation in construction rendering the December, 1973 building permit void precluded Appellant from raising the issue of equitable estoppel thus requiring it to bring the entire project into compliance with the revised ordinances.

We affirm the decision of the trial court.

ANSTEAD and DAUKSCH, JJ., concur.

      . 1973 ordinances would permit 23 apartments instead of 44, 77 off-street parking spaces instead of 100, and would require landscaping around the perimeter of the building.

      . Ordinances of the City of Riviera Beach provide that if construction ceases for a period of 90 days, a building permit becomes void.

      . Florida Statute 697.02: “A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.”


source: Caselaw Access Project

author: GRIMES, Chief Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Jorge L. DOMINGUEZ, Jr., Appellee.
    Nos. 78-1094, 78-1095.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 1979.
    Rehearing Denied Feb. 23, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Britt Whitaker, Tampa, for appellee.
   GRIMES, Chief Judge.

This is an appeal by the state from orders suppressing the seizure of evidence pursuant to two separate search warrants.

On December 20, 1977, Circuit Judge John A. Gilbert issued a search warrant authorizing the search of appellee’s apartment. The search warrant was executed and certain incriminating evidence was seized. However, the apartment appeared to have been vacated,, so Detective Law sought a new search warrant for an apartment to which appellee had moved. The affidavit for the new search warrant contained the same statement of facts used to obtain the earlier search warrant plus a recitation of information learned by the detective from his search of the first apartment. The new search warrant was issued by Circuit Judge James A. Lenfestey on December 22, 1977. This search warrant was executed and further property was seized.

The appellee was later indicted for the murder of John Redmond, Jr. and William Steven Weissman and also charged with the possession of marijuana. The appellee moved to suppress the evidence obtained through both searches. It was agreed that if the first search was deemed invalid the second search would also have to fall. The court ruled that the affidavit in support of the first search warrant was legally insufficient, and the court entered orders suppressing the evidence seized as a result of both searches. As a basis for its conclusion, the court noted “that the affidavit upon which the first search warrant was issued is woefully inadequate in that the affiant does not even name the persons from whom he received the information which is set forth in the chronology of events, so the court has no way of knowing who furnished that information, whether or not that person had an opportunity to observe what is set forth there in that chronology of events or whether or not it was hearsay or hearsay twice or three times removed.”

In Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964), the United States Supreme Court set forth the requirements of an affidavit for a search warrant based upon hearsay evidence.

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was “credible” or his information “reliable. . . ”

However, that same court warned against the supertechnical interpretation of such affidavits when, in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965), it said:

If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

In this appeal the state argues that even though the affidavits did not specifically state who supplied Detective Law with what facts, one can determine this information from a commonsense reading of the statements within the affidavit. Keeping in mind the dictates of Ventresca, we think it reasonable to make the following conclusions from the quoted portions of the affidavit:

Affiant is a member of the Hillsborough County Sheriff’s Department and has been so employed since March of 1970. The Affiant is presently assigned to the Criminal Investigation Division as a detective and is currently assigned to the Crimes Against Persons Bureau, charged with investigations of Murder.
Your Affiant has personally participated in the investigation of the murder of John B. Redmond, Jr., since the date his body was recovered from a shallow grave on December 17, 1977. The information related below was obtained by your Affi-ant through interviews of persons connected with this investigation.
The following is a chronology of events as pieced together through writer’s investigation. The chronology will be followed by a concluding paragraph.

This preface simply reflects that Detective Law obtained the facts thereafter stated through personal interviews conducted during his investigation of the Redmond murder.

1 DEC 77
John Redmond, Jr., drives to the Windjammer Apartment, the residence of Francis David Brew AKA Sunshine. While there Redmond told Francis that he wanted $5,000.00 back that he had given him about a week prior because he needed it for another deal. The money was given back in the form of 50 one hundred dollar bills.

Since Redmond is dead, the logical conclusion to be drawn from this paragraph is that Brew related the details of a transaction between himself and Redmond.

2 DEC 77
William Steven Weissman arrived in Tampa from Melboum (sic) Florida. He had approximately $6,000.00 in cash on his person. Weissman was picked up from the airport by Karen Meredith who observed him to be very nervous. Karen took him to Redmond’s residence which is located at 7228 Potts Rd., Riverview, Florida. During that afternoon Jorge Dominguez and a person known as “Chee-to” arrive. At approximately 7:00 p. m., David Brew arrives and overhears the four talking about a cocaine deal. Jorge got up several times and telephoned an unknown person asking if the “man” had come yet.

Karen Meredith obviously furnished the information concerning Weissman’s arrival at Redmond’s residence with the $6,000. Brew overheard the discussion about the cocaine deal. It appears with somewhat less certainty that Brew was the source of the statement that appellee made telephone calls asking if the “man” had come yet. In any event, this information was not essential to the showing of probable cause.

3 DEC 77

No indication of Redmond or Weissman leaving the Potts Road address.
4 DEC 77
No activity until the afternoon hours when Redmond and Weissman left the house and went target practicing with a 38 special revolver and a 9MM automatic.

The source of this information is not indicated, but the information is not particularly pertinent to probable cause.

5 DEC 77
Approximately 1500 hours Redmond and Weissman arrive at the residence of Francis Brew. They have a 6 pack of beer and said they were in the area killing some time. They stayed for about one hour and left not saying where they were going. (Brew described the manner in which Redmond was dressed and was the same as he was when his body was discovered.) At approximately 12:00 midnight John Redmond’s vehicle is discovered in the airport parking lot. (Weissman’s body in the trunk). The windshield wipers were on indicating that the vehicle was driven to the airport sometime after 20:05 hours when it started raining. (Weissman’s body was wrapped in a green thermal banket (sic) and a white “Grant” sheet, shot twice, wallet missing).

The arrival of Weissman and Redmond at the Brew residence is specifically attributed to Brew. The finding of Redmond’s vehicle was a fact obviously known by the police.

6 DEC 77
Karen calls Jorge Dominguez inquiring about Redmond’s absence. Dominguez siad (sic) that he had seen Redmond Monday the 5th and Redmond told him that he was leaving town. (Redmond nor Weissman took any personal items with them that would indicate they intended to leave.) Dominguez said that he would see Karen later and Figure (sic) out where Redmond went. He never did.

Karen Meredith, apparently, recounted the substance of a telephone conversation she had with the appellee.

6 or 7 DEC 77
Margot Wayman, the apartment manager for the Green Oak apartments on Skipper at 30th St. extention (sic), observes that Apt. 118, the Jorge Dominguez residence had its drapes removed and a red blanket up. She asked Debbie Dominguez (Jorge’s sister) about the drapes and Debbie said that they had burned the old drapes and were in the process of buying new ones.

This firsthand information was specifically furnished by Margot Wayman, apartment manager.

Week of 5-9 DEC 77
Keith Souders of Apt. 119 stated that he heard what sounded like at least two firecrackers exploding at about 22:00 hours.

This is firsthand information specifically furnished by Keith Souders who lived in a nearby apartment.

15 DEC 77
Weissman is found in Redmond’s car at Tampa International Airport, dead and decomposed.

The police knew that Weissman’s body was found in Redmond’s car.

17 DEC 77
Redmond is found hurried (sic) in a shallow grave 8/io mile north of the Dominguez apartment. He was shot twice and laying on a cannon percale Rex-a-matic sheet. His wallet was missing.

The police knew that Redmond’s body was found less than a mile from appellee’s apartment.

20 DEC 77
Your Affiant went to the Dominguez apartment and observed what appears to be blood on the sliding glass door of the apartment (where the now replaced drapes had been).
A photo of the sliding glass door is attached as exhibits B and C.

This evidence was specifically observed by affiant.

Because of your Affiant’s training, past experience and recent investigation your Affiant has reason to believe and does believe that Redmond and Weissman were involved in a drug deal with Jorge Dominguez and “Cheto” which began on approx. 12/2/77 and terminated with Redmond’s and Weissman’s and (sic) bodies being found on 12/17/77 and 12/15/77 respectively. Both bodies were shot and wrapped in bed clothing. Therefore, your Affiant has reason to believe the blood stain on the sliding glass door at apt. 118, 4106 Skipper Road Lutz, Hills-borough County, Florida and the fact that the draperies covering that glass door were removed on approx. 12/6-7/77 that Weissman and Redmond were and further that a neighbor heard what appeared to be “firecrackers” during the week of 12/5-9/77 leads your Affiant to believe that both Redmond and Weissman were murdered at apt. 118, 4106 Skipper Road, Lutz, Hillsborough County, Florida.

The above passage is Detective Law’s summary of the foregoing facts which formed the basis for his belief that Redmond and Weissman were murdered at appellee’s first apartment.

It is evident that all the pertinent facts set forth in the chronological recitation were either known personally by the affiant or other members of the police or were reported from firsthand knowledge to the affiant by Brew, by Meredith or by persons living in nearby apartments. In the case of information furnished to affiant by others, enough facts were set forth in the affidavit to show how these persons had come to know what they reported. Moreover, we believe that the information given to affiant by others was sufficiently corroborated by independent circumstances so as to meet the test of reliability. Aguilar v. Texas, supra.

Despite its technical imperfections, we believe that the affidavit was sufficient as measured by the standard of review set forth in United States v. Ventresca, supra, at 380 U.S. 109, 85 S.Ct. 746, 13 L.Ed.2d 689.

Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. .

See State v. Jacobs, 320 So.2d 45 (Fla.2d DCA 1975).

Not only were the same facts submitted in the affidavit for the second search warrant, but Detective Law was also able to add that he had found substantial amounts of human blood on the carpet and the furniture in appellee’s apartment, a bullet fragment in the wall, and a .22 caliber casing on the floor. He further stated that Redmond had been shot with a small caliber projectile which appeared to be a .22 bullet. At this point the facts in the second affidavit were obviously sufficient to obtain a search warrant for appellee’s new apartment.

In his brief the appellee suggests that even if this court were to determine the affidavits to be sufficient, the evidence seized by virtue of the second search warrant should be suppressed because in executing this warrant the police violated Section 933.09, Florida Statutes (1977), which prohibits forcible entry. Unlike the question of the legality of the search warrants, this issue was a factual question about which testimony was taken at the hearing. The court found that the warrant had been properly executed, and there is competent substantial evidence to support this finding.

The orders of suppression are reversed.

SCHEB and DANAHY, JJ., concur.

      . These were more than anonymous tips. The credibility of a disinterested citizen who reports what he has previously observed in response to police interrogation ought to be acceptable on its face in the absence of anything suggesting the untrustworthiness of such information. Of course, the credibility of Brew and Meredith must be viewed with closer scrutiny because it appears that they were well acquainted with the principals in this case if not themselves involved in criminal activities.

      . The fact that blood stains were found on the sliding glass door of appellee’s apartment in which the drapes had just been replaced was a particularly incriminating circumstance which can hardly be deemed coincidental.


author: PER CURIAM. MILLS, Acting Chief Judge,

text:
    Edward TOLLIVER, Appellant, v. Martha L. MARTINA, etc., et al., Appellees.
    No. MM-81.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1979.
    Rehearing Denied March 12, 1979.
    Cecil G. Costin, Jr., Port St. Joe, for appellant.
    Brandt W. Davis, Apalachicola, for appel-lees.
   PER CURIAM.

AFFIRMED.

SMITH, J., and McDONALD, PARKER LEE, Associate Judge, concur.

MILLS, Acting C. J., dissents.

MILLS, Acting Chief Judge,

dissenting:

The only issue presented by this appeal from a nonfinal order is whether the allegations of the recall petition are legally sufficient.

The allegations are:
“(1) Have in misfeasance and neglect of their official duties, failed to provide adequate sewage disposal facilities in the City of Apalachicola, thus endangering the health, safety, and welfare of the citizens of said City and of Franklin County;
“(2) Have exhibited and pursued personal animosity between and among themselves to the exclusion and neglect of public business and official duties, thus impeding the functioning of governmental business and processes and impairing the city’s ability to provide essential services to its citizens.”

Martina admits that ground (2) of the petition is insufficient and I agree.

Ground (1) is insufficient because it does not, with reasonable specificity, set forth a violation of a duty to the electorate which could be sufficiently identified for the electorate to determine the truth or falsity of the charge. Nor does ground (1) apprise Tolliver of the charges he would be expected to meet were a recall election held. In my judgment, ground (1) contains no more than a conclusion or opinion. It is not supported by the allegation of any facts. The petition must allege sufficient facts to identify the acts or failure to act which are urged by Martina as misfeasance or negligence on the part of Tolliver. Gilbert v. Morrow, 277 So.2d 812 (Fla. 1st DCA 1973).

I would reverse.


author: HUBBART, Judge.

text:
    Clyde Irwin BLACK, a/k/a Clyde Hill, Appellant, v. The STATE of Florida, Appellee.
    Nos. 78-393, 78-394.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Rehearing Denied March 5, 1979.
    Denis Dean, Special Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   HUBBART, Judge.

This is a criminal prosecution which was consolidated for trial with a violation of probation proceeding in the Circuit Court for the Eleventh Judicial Circuit of Florida. After a jury trial in which the defendant was convicted of certain charged felonies, the trial court entered adjudications of guilt thereon, revoked the defendant’s prior probation, and imposed a series of penitentiary sentences. The defendant appeals.

The central contention made by the defendant for reversal of the convictions herein, and the only contention orally argued before the court, is that the prosecuting attorney indirectly commented in his final argument to the jury on the defendant’s failure to testify at trial. In our view, the issue was not properly presented to the trial court and, accordingly, has not been preserved for appellate review. Although the defendant objected at trial to the challenged argument and moved for a mistrial, he did not object on the specific ground that he now urges on appeal, to wit: that the prosecutor’s argument constituted an indirect comment on the defendant’s failure to testify at trial. As such, the defendant has waived the issue for appellate review. Clark v. State, 363 So.2d 331 (Fla.1978); State v. Jones, 204 So.2d 515 (Fla.1967).

We have considered the other contentions raised by the defendant in his brief and find them to be insufficient to upset this conviction. Accordingly, we affirm.

Affirmed.


author: SCHWARTZ, Judge.

text:
    John PRAET, Appellant, v. Ruth MARTINEZ, Appellee.
    No. 78-2191.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Rehearing Denied March 5, 1979.
    Jerry A. Bums, Miami, for appellant.
    Markus, Winter & Spitale and Kenneth N. Feldman, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The appellant seeks review of a non-final order of the trial court which set aside, under Fla.R.Civ.P. 1.500(d), a default entered by the clerk as provided in Fla.R. Civ.P. 1.500(a). We conclude that this court lacks jurisdiction to consider this proceeding under the “new” rules of appellate procedure, effective March 1,1978, and therefore dismiss the interlocutory appeal.

Only the non-final orders specified in Fla. R.App.P. 9.130(a) are reviewable on interlocutory appeal. See Vista View Apartments v. Hardrives Co., 364 So.2d 494 (Fla.4th DCA 1978). The order in question here is not one of them. Since no final default judgment, as opposed to the simple default involved in this case, had been entered below, the order does not fall within Fla.R. App.P. 9.130(a)(4) which states:

“ . . . Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.” [emphasis supplied]

Nor is the order involved here reviewable under Fla.R.App.P. 9.130(a)(5) as one which was “entered on [motion] filed pursuant to Fla.R.Civ.P. 1.540 ...” This is so because Fla.R.Civ.P. 1.500(d) states:

“(d) Setting Aside Default. The court may set aside a default and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with Rule 1.540(b).” [emphasis supplied]

Our conclusion of non-reviewability is strengthened by contrasting the present rule with the provisions of the former interlocutory appeal rule, F.A.R. 4.2, which specifically provided that it applied to “orders granting or denying motions to vacate defaults.” Furthermore, it is in accordance with the avowed policy of the new rules severely to limit the number and type of appealable non-final orders. Particularly in view of that policy, moreover, we decline to treat this proceeding as an application for common law certiorari under Fla.R.App.P. 9.100(a). The interlocutory appeal is therefore

Dismissed.

      . As is said in the 197J advisory committee and court’s commentary to Rule 9.130:
      “ . it is extremely rare that erroneous interlocutory rulings can be corrected by resort to common law certiorari. It is anticipated that since the most urgent interlocutory orders are appealable under this rule, there will be very few cases where common law certiorari will provide relief . . . ”


author: ANSTEAD, Judge.

text:
    Johnnie G. SULLIVAN and Virginia Sullivan, his wife, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, a Foreign Corporation doing business in Florida, Appellee.
    No. 77-1317.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Rehearing Denied March 9, 1979.

      Walter H. Beckham, Jr., and Robert Or-seck of Podhurst, Orseck & Parks, P. A., Miami, Ferrero, Middlebrooks & Houston, Fort Lauderdale, and Joe N. Unger of Law Offices of Joe N. Unger, Miami, for appellants.
    Todd A. Cowart and James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellee.
   ANSTEAD, Judge.

This is an appeal from a final judgment of dismissal of an action against Liberty Mutual Insurance Company, the workmen’s compensation insurer for Johnnie G. Sullivan’s employer, for wrongful failure to authorize necessary medical treatment for Mr. Sullivan.

In their complaint the Sullivans alleged that Mr. Sullivan had sustained a compen-sable injury on March 8,1971, for which his employer and Liberty Mutual were obligated to provide medical treatment. It was further alleged that on May 9,1974, Liberty Mutual wrongfully withdrew its authorization for one of Sullivan’s physicians to continue treatment and that as a result Sullivan eventually had his foot amputated and suffered other injuries. After various amendments the trial court dismissed Sullivan’s action with prejudice on the grounds that a workmen’s compensation action was Sullivan’s sole remedy for the misconduct alleged. We agree.

In a variety of factual situations Florida appellate courts have consistently refused to extend liability of an employer or carrier beyond that provided under the workmen’s compensation law, Chapter 440, Florida Statutes (1975). See Carroll v. Zurich Insurance Company, 286 So.2d 21 (Fla. 1st DCA 1973) and cases cited therein; Warwick v. Hudson Pulp & Paper Company, Inc., 303 So.2d 701 (Fla. 1st DCA 1974), cert. denied 314 So.2d 776. Under that law an employer, while obligated to compensate his employee for certain injuries regardless of fault, is immune from tort liability. And it has been held that a workmen’s compensation insurer enjoys the same immunity. Carroll, supra; Allen v. Employers Service Corporation, 243 So.2d 454 (Fla. 2d DCA 1971), cert. denied 248 So.2d 167; Conklin v. Cohen, 262 So.2d 717 (Fla. 3d DCA 1972), aff’d in part, rev’d in part 287 So.2d 56. In Carroll, Justice Drew, sitting as an associate judge with the First District, stated for the court:

The question presented for decision here is whether a Workmen’s Compensation Carrier has the immunity of its insured employer against a common law action by an employee under Section 440.11, F.S.A. as it existed prior to July 1, 1970. (Footnote omitted)

In answering this question in the affirmative Justice Drew took issue with an Illinois decision which had held that Florida law was to the contrary:

This problem has been accented here and in other jurisdictions by the decision of the Supreme Court of Illinois in the Nelson case, in which that court undertook to construe our Workmen’s Compensation Act and to determine the public policy of this state in that area. There, that court reached the conclusion that “ * * * we think the Florida legislature would have expressly granted tort immunity to insurers had that been its intent.” With this conclusion, and the reasoning by which it was reached in the decision, we do not agree. From the beginning our courts have, so far as immunity in the sense used here is concerned, considered “employer and insurer”, “employer-carrier” in the same context. The courts, the administrative agencies under the Act, and members of the bar have consistently and constantly considered them as interchangeable words so far as this question is concerned. (Id. at 22) (Footnote omitted)

It has also been held that an employer’s workmen’s compensation liability extends to injuries and aggravations of injuries resulting from medical treatment rendered incidental to the original compen-sable injury. Warwick, supra. Hence, Sullivan’s injuries arising from medical treatment, or lack thereof, rendered incidental to his original injury, are likewise compensable by his employer and his employer’s carrier, Liberty Mutual. That relief, however, is his sole remedy against the employer and the carrier.

We agree with Sullivan that the legislature may not have set out the carrier’s co-immunity with the employer in a single specific section of the present workmen’s compensation law. For instance, on its face, Section 440.11(2) appears to apply only to “safety services” provided by the carrier. However, when Section 440.11 and the rest of the provisions of the compensation law are examined as a whole we find numerous expressions of intent by the legislature to apply the same liabilities and immunities to the carrier as are applied to the employer. Indeed, Section 440.41 provides that the carrier may actually be substituted for the employer as the responsible party to the employee under the law. We agree with the previous Florida appellate decisions, exemplified by Justice Drew’s opinion in Carroll, which have held that the immunity from tort liability of an employer and its carrier are virtually identical. In this respect we'find ourselves also in substantial agreement with the following observations made in Noe v. Travelers Insurance Co., 172 Cal.App.2d 731, 342 P.2d 976 (1959):

But, beyond the legalistic objection to appellant’s position, we must point out that if delay in medical service attributable to a carrier could give rise to independent third party court actions, the system of workmen’s compensation could be subjected to a process of partial disintegration. In the practical operation of the plan, minor delays in getting medical service, such as for a few days or even a few hours, caused by a carrier, could become the bases of independent suits, and these could be many and manifold indeed. The uniform and exclusive application of the law would become honeycombed with independent and conflicting rulings of the courts. The objective of the Legislature and the whole pattern of workmen’s compensation could thereby be partially nullified.
It is true, however, that, as appellant argues, insurance adjusters should obtain no sanction in overruling or “directing competent physicians and surgeons.” Flagrant interference by a carrier with rendition of medical care, such as described in this complaint, should generate swift relief in the commission. The courts support the commission in affording it.

Sullivan also contends that he sufficiently alleged a cause of action against the insurer for intentionally harming him. Section 440.11(2) provides exceptions to the immunity granted in the case of certain willful assaults and automobile accidents. It would appear that the immunity granted under the statute was not intended to cover instances where a carrier intentionally harms the employee. However, while it is alleged that the insurer intentionally withdrew its authorization for medical treatment, nowhere is it alleged that Liberty Mutual intentionally injured Sullivan. We agree with the trial judge that the allegations were insufficient to come within any exception to the statutory immunity.

Accordingly, for the reasons set out above, the judgment of the trial court is affirmed.

LETTS and MOORE, JJ., concur.

      . The trial court correctly noted in its judgment that under the law the employer and carrier remained liable for any medical services required by the employee and that liability could be enforced through a judge of industrial claims.

      . While the immunity provided under the workmen’s compensation law would normally be the subject of an affirmative defense, we find the allegations of the complaint regarding the status of the carrier are such that the defense could be asserted by a motion to dismiss.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Ora L. EASH, Appellee.
    No. 78-107.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.

      Robert L. Shevin, Atty. Gen., Tallahassee and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Peter M. de Manió, of Scovill, Pitcher & de Manió, Chartered, Sarasota, for appellee.
   OTT, Judge.

The state appeals an order of dismissal. We affirm in part and reverse in part for reasons hereinafter stated.

The appellee was charged by information with possession of greater than five grams of marijuana. Appellee wished to be accepted into a pretrial intervention program pursuant to § 944.025, Fla.Stat. (Supp. 1978). Subsection (1) of that section provides:

The Department of Offender Rehabilitation shall supervise pretrial intervention programs for persons charged with a crime, before or after any information has been filed or an indictment has been returned in the Circuit Court. Such programs shall provide appropriate counseling education, supervision, and medical and psychological treatment as available and when appropriate for the persons released to such programs.

In order to gain admittance into a pretrial intervention program, the appellee had to secure the approval or consent of four persons specified in § 944.025(2):

Any first offender who is charged with any misdemeanor or felony of the third degree is eligible for release to the pretrial intervention program on the approval of the administrator of the program and the consent of the victim, the state attorney, and the judge who presided at the initial appearance hearing of the offender.

Another requirement is that the person desiring admittance into the pretrial intervention program must waive his right to a speedy trial for the period of his diversion. Section 944.025(2) states this requirement as follows:

In no case, however, shall any individual be so released unless, after consultation with his attorney or one made available to him if he is indigent, he has voluntarily agreed to such program and has knowingly and intelligently waived his right to a speedy trial for the period of his diversion.

Appellee’s “Waiver of Speedy Trial” stated in relevant part as follows:

[T]his waiver is in the nature of a tolling of the speedy trial time from the time of his release to the program until the charges against him are either dismissed or the case against him reverts to normal channels for prosecution and he specifically does not waive the time which has already expired from the date of his arrest . . . until he is released to the pretrial intervention program.

The state refused to accept this waiver. Appellee then filed a Motion for Clarification in which he sought a construction of § 944.025(2) as to the right of the state attorney to require a total waiver. This motion provided in relevant part as follows:

(3) Defendant . . . filed .
a Waiver of Speedy Trial with conditions which would make such Waiver effective only during the time of the pre-trial diversion and only in the event he were accepted for pre-trial diversion.
(4) The State Attorney has hampered the orderly procedure and preparation of the necessary investigation by the Department of Health and Rehabilitative Services by clearly indicating that he would not give his approval as required by statute to the defendant being released to the pre-trial intervention program unless the defendant waives all his rights to a speedy trial prior to being accepted.

The court’s order upon appellee’s Motion for Clarification stated as follows:

1. The Florida Legislature enacted Florida Statute 944.025 in an effort to provide an effective method of disposing of first offenders’ cases by channeling the cases directly to the Department of Offender Rehabilitation, thus, freeing the Courts from some of the case overload and, also, saving the Defendant from acquiring a record of convictions and arrests.
2. It is not the intent of the Florida Legislature to coerce a Defendant who might qualify for the pre-trial intervention program into sacrificing a valuable, constitutional right to-wit: Speedy Trial, in order to gain the benefits provided in the Statutes by the Legislature.
3. Florida Statute 944.025 states clearly that the Defendant shall waive his right to Speedy Trial upon release to the pretrial intervention program.
4. The Defendant shall sign his Waiver of Speedy Trial at the time he is released to the pre-trial intervention program and the running of the Speedy Trial time shall be tolled from the date of his release until the Defendant is either discharged or it is determined that he has failed in the pre-trial intervention program and the case has reverted to normal channels for prosecution.
5.Florida Statute 944.025 is found to mean that the Defendant who waives Speedy Trial while released to the Speedy Trial pre-trial intervention program waives Speedy Trial only during the period of diversion.

Appellee again applied for pretrial intervention. [Appellee had been approved by the Department of Health & Rehabilitative Services.] The state again refused to give its consent. Appellee then filed a Motion for Pretrial Intervention Or, In The Alternative To Dismiss. In this motion, the ap-pellee alleged that he was “being discriminated against capriciously without any justifiable reason” and prayed that the court “enforce a uniform standard which is fair and just to all litigants.”

The lower court treated this as a motion to require the state to show cause for its failure to accept a waiver consistent with the court’s order of clarification. At the hearing on the motion, the state admitted that it did not intend to follow the court’s order of clarification. The state admitted that the sole basis for refusing to accept such a waiver was that such a ruling conflicted with its “total waiver” policy with regard to speedy trial waivers in pretrial intervention situations.

The lower court ordered that the state had ten days to authorize (or consent to) the appellee’s entry into the pretrial intervention program or else the court would order a dismissal of the information. The state failed to comply within ten days and the lower court dismissed the information filed in the case.

As far as we can determine this is a case of first impression.

At the outset it should be noted that the concept, purpose and all of the rights and responsibilities involved in the pretrial intervention program are creations of the legislature. In this instance we are not forced to glean legislative intent solely from the operative portions of the law or from such bits and pieces as may have been preserved of the legislative proceedings leading to the development and adoption of the law. By § 944.012, the legislature clearly states that it is providing new methods and alternatives to traditional institutional incarceration for the intelligent evaluation, classification, treatment and—where indicated—the incarceration or other institutionalizing of criminal offenders. The coordination and cooperation of all agencies involved is expressly directed or mandated in order to maximize effective and efficient processing and treatment of criminal offenders—including the early identification of nondangerous offenders—and their diversion into specially designed programs that are alternatives to institutional commitment.

One of the special programs for placement of suitable offenders is found in § 944.025 and concerns the “pretrial intervention program.” The statute is the foundational authority or source for everything connected therewith. It is the first place to look for direction in the resolution of the questions presented by this appeal.

Statutory construction, interpretation and' compliance therewith are historically, constitutionally and necessarily functions of the courts. Determination of whether or not the acts of the executive department are authorized or directed by the legislation, review of their acts as to the lawful exercise of their authority or discharge of their responsibilities, and evaluation of compliance or noncompliance with legislative directives and purposes are but some of the many problems involved in the implementation of legislative enactments that are the peculiar responsibility of the judicial branch in the tripartite system of government under which we function.

We think it axiomatic that the original problem that developed between the state attorney and the offender (appellee) in this case was one of those matters that the court system is designed to resolve—the fundamental question of whether or not the appellee’s written waiver of his right to a speedy trial satisfied the legislative requirement for such that is mandated in § 944.-025(2).

Both parties were fully heard at a proper hearing before the trial court on the question of the adequacy or sufficiency of the appellee’s waiver. The state took no appeal therefrom but simply chose to disregard or reject the ruling of the trial court thereon.

Quite properly then the trial court, in effect, issued its order requiring the state attorney to show cause why he continued to withhold consent. Unless predicated upon some rational basis other than the waiver it would clearly be outside the legislative grant or purpose.

The consent of the prosecutor is but one of several safeguards the legislature provided in making sure all agencies concerned in the process were mandatorily involved in determining the suitability of the offender and the program. The prescribed consents of all concerned must be rationally exercised consistent with the legislative purpose and provisions. Again we point out what seems to us to be an elementary proposition, namely, that the courts determine whether the consensual discretion was lawfully exercised. The consent of the trial court itself pikewise directed in § 944.-025(2)] is subject to review by the appellate courts of this state. There is no legislative indication—or for that matter, no fundamental requirement (essential to the constitutional discharge of its duty)—that the prosecutorial consent was, in effect, an absolute right of veto.

The state argues that there is no provision in (2) of the governing statute—§ 944.-025—permitting judicial review of any of the consents required for admission to the program. Quite the contrary, we think that legislative authority for such an absolute veto must be found in the legislation. In its absence it is reviewable as to lawful exercise. We therefore hold that insofar as the legislative act is concerned the act of the prosecutor in withholding his consent was reviewable by the court.

The record clearly indicates that the state arbitrarily and capriciously withheld its consent to appellee’s entry into the pretrial intervention program.

In Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1073, 30 L.Ed. 220, 227 (1886) the Court stated:

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material in their rights, the denial of equal justice is still within the prohibition of the constitution.

See Wiggins v. City of Jacksonville, 311 So.2d 406 (Fla.1st DCA 1975).

The fact that the state received a disappointing ruling in the trial court should not give it license to punish appellee by way of discrimination. Such conduct on the part of the state is tantamount to coercion and has a chilling effect upon the exercise of the right to a vigorous defense.

We further point out that the state’s actions in this case have the obvious effect of stretching the affair out. As pointed out in the record, this was at great expense (relatively speaking) to the appellee.

Accordingly, we affirm the lower court judgment insofar as it proscribes the arbitrary and capricious activity of the state.

The state next advances the proposition that its consent is part and parcel of the prosecutor’s function in filing criminal charges and is therefore nonreviewable in the same manner that a prosecutor may not be mandated to prosecute.

In this connection it should be noted that § 944.025(5) specifically provides that “[a]t the end of the intervention period . [t]he State Attorney shall make the final determination as to whether the prosecution shall continue.” Even though prosecu-torial discretion has been tolled during the program, once the program is completed the prosecutor again has discretion. Thus, it is not as though the prosecutor is removed from discretionary control of the action, rather it is simply an application of the law which tolls — for the period of diversion of the appellee only — the prosecutorial discretion.

We must, however, reverse that portion of the lower court’s order dismissing the information. The sufficiency of the information must be measured by established legal standards and not by this collateral action of the prosecutor. This would constitute an unlawful infringement upon discretion of the prosecutor to prosecute.

We conclude that the lower court may properly review the act of the state attorney in withholding his consent for appellee’s entry into the program. If duly found to be arbitrary and capricious the trial court may order the appellee’s admission to the program notwithstanding such refusal of the state attorney to consent thereto.

Reversed and remanded for further proceedings consistent herewith.

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


author: MASON, ERNEST E., Associate Judge.

text:
    PARKER’S MECHANICAL CONTRACTOR’S, INC., and Airvac, Appellants, v. EASTPOINT WATER AND SEWER DISTRICT et al., Appellees.
    No. KK-122.
    District Court of Appeal of Florida, First District.
    Feb. 1, 1979.
    Rehearing Denied March 12, 1979.

      Dale E. Rice, Crestview, and Watkins & Watkins, Apalachicolo, for appellants.
    Edgar Lee Elzie, Jr., East Point, for ap-pellee Eastpoint.
   MASON, ERNEST E., Associate Judge.

This is an appeal from a final judgment of the Circuit Court of Franklin County wherein the trial court held that appellant, Parker’s Mechanical Contractor’s, Inc., was entitled to the sum of $122,686.73, principal amount, without prejudgment interest on such amount, against appellee, Eastpoint Water and Sewer District; and also held that the appellant, Airvac, was entitled to the sum of $14,636.36 against Technical Marketing, Inc., one of the appellees herein, but denied prejudgment interest on said amount.

Although Technical Marketing, Inc., was made a party appellee herein by Airvac who joined in the appeal of Parker’s Mechanical Contractor’s, Inc., we have not been favored by any brief filed herein by it and will decide the cause as to it based upon the point raised by Airvac and the law applicable to such issue as we find it to be from Airvac’s brief and our own research.

The facts giving rise to this suit are as follows: Parker’s Mechanical Contractor’s, Inc. (hereinafter referred to as “Parker”) was awarded a contract by Eastpoint Water and Sewer District (hereinafter referred to as the “District”) to install a new vacuum collection system in Franklin County. Before letting the contract, the District realized that the type of vaults and vault covers it had planned to require were prohibitively expensive and thus the District engineers compromised on a substitute type of vault and cover. Technical Marketing, Inc. (hereinafter referred to as “Technical”), a subcontractor of Parker to furnish the vaults and covers for the project, demonstrated to the District engineers a cheaper type of vault and cover manufactured by Sonoco Products Company, a third-party defendant below, and an appellee herein (hereinafter referred to as “Sonoco”). All agreed to substitute the Sonoco product for the more expensive Ford Assembly originally planned to be used. But shortly after installation, the Sonoco covers began to break down. Parker recommended that all 250 covers be returned to Technical who had furnished them on the job, but the District engineers rejected the suggestion and decided to replace only 30 of the Sonoco covers and to continue to use the remaining 220.

This litigation began on June 4, 1976, when Airvac filed suit against the District, Parker and Technical to foreclose a mechanic’s lien on the undisbursed monies contained in a fund retained by the District. Airvac’s claim arose out of some valves it sold to Technical for use in the Parker-District contract job and for which it claimed there was a balance due it in the sum of $14,636.14. It was determined at the trial that the claim for a mechanic’s lien was filed too late under the Mechanic’s Lien Statute, and the court awarded Airvac only a monetary judgment and only against Technical to whom it had sold the valves.

In answer to Airvac’s claim, each of the defendants filed general answers and cross-claims. The District filed a cross-claim against Parker and Technical alleging defective covers and pumps. Parker filed a cross-claim against the District for $122,686 for payment under the contract for work performed. Technical filed a cross-claim against Parker for $16,791, alleged to be due it under its subcontract. Also Technical filed a third-party complaint against Sonoco because of the alleged defective covers.

A pretrial conference was held and the trial court entered an order decreeing that Airvac was owed $14,636 for the valves it furnished for the project and declared that it would provide for the method and manner of payment of that claim in the final judgment. In the pretrial order the court further decreed that Parker was entitled to $122,686.73 from the District, subject to any setoffs established at the trial because of the District’s cross-claim against Parker. In such pretrial order, the court stated that the parties agreed that the District owed Parker a balance under the original contract in the sum of $122,686.73, “subject to any setoffs which may be established at the trial of this cause bv reason of Cal improper color coding throughout the system, (b) water and sewer pumps which did not meet contract specifications and (cl defective vault and manhole covers.” (Underscoring and parentheses added.)

Further, the court stated in paragraph 3 of the pretrial order as follows:

“3. The issues concerning defective color coding and water pumps are between Eastpoint Water and Parker’s Mechanical. The issues on the allegedly defective manhole covers will involve the question of whether the manhole covers manufactured by Sonoco and furnished by Technical Marketing Corporation were not in accordance with specifications. If the manhole covers are found inadequate on the claim of Eastpoint Water and Sewer, the trial will then become whether this is the responsibility of the contractor, the supplier or the manufacturer. The question of inadequate manhole covers will be resolved subsequent to the issues on color codes and water and sewer pumps.”

None of the parties took exception or objected to these pretrial findings of the trial court.

Trial was had before the court without jury, and after the evidence was heard, the court granted Parker’s motion for directed verdict as to the pump claim, holding that the pumps had a design defect that was not Parker’s fault, but denied Parker’s motion for directed verdict as to the vault covers. Then the court entered final judgment in favor of Parker in the amount of $122,-686.73 against the District, which was the full principal amount claimed by Parker in its cross-claim against the District which was filed October 13, 1976, but the court denied Parker’s claim for prejudgment interest on the ground that the amount of Parker’s claim was not liquidated but was uncertain at the time of Parker’s final billing on June 21, 1976. It is from this denial of prejudgment interest that Parker appeals.

The point on the appeal of Parker is whether the court erred in denying Parker prejudgment interest on the ground that its bill was not liquidated and certain.

In this connection the record discloses that the general contract between Parker and the District provided that the District was obligated to make payment to Parker of the balance due on the contract price within 30 days of completion and acceptance of the work by the District and that in the event of the District’s failure to make such payment within said time, interest at the maximum legal rate would be added to said balance to run from the end of said 30-day period and to continue until payment is received by Parker.

The contract also provided that Parker would save the District harmless from all claims growing out of the lawful demands of subcontractors, laborers and material-men, and upon the demand of the District would furnish to it satisfactory proof that all such claims have been paid, discharged, or waived; that if Parker failed to do so, the District may withhold from Parker’s unpaid compensation a sum of money deemed reasonably sufficient to pay all such lawful claims.

We affirm the final judgment’s denial of prejudgment interest to Parker for the reason concluded by the trial judge — that at the end of 30 days after the project was completed and the work approved by the District’s engineer and accepted by the District, the amount due to Parker was uncertain and unliquidated because of the numerous claims and cross-claims unresolved and at issue. For instance, there was Air-vac’s complaint for a mechanic’s lien against the District, Parker and Technical, which was filed prior to the submission of Parker’s final bill to the District. It is true that the court in its final judgment limited Airvac’s claim to a monetary judgment against Technical and thereby held the District not liable therefor, yet in its pretrial order dated December 8, 1977, the court held that the monies due Airvac were due for valves incorporated in the water and sewer system installed for the District and were due either by Parker, Technical or the District. Because of this claim and to its extent it was evident that when Parker made demand for final payment on the contract, the amount due on the contract was uncertain and, therefore, unliquidated.

Then there was Technical’s cross-claim against Parker for $16,791.45 for goods (fiberglass holding tank, valves, etc.) allegedly owed by Parker upon delivery of said goods to it during the years 1974 and 1975, and used in the District’s water and sewer project. At trial, Technical claimed it was owed $18,707.70 for this claim but was awarded judgment for only $12,478.95 against Parker. Clearly because of this circumstance and to the extent of Technical’s actual claim against Parker, the latter’s claim against the District was uncertain and unliquidated. At the time Parker made demand on the District for payment, the latter was not assured that Technical would not claim a lien just as Airvac had done.

Finally, there was the cross-claim of the District against Parker and Technical for defective vault covers.

Thus, at the time Parker claims it was due as final payment on the construction contract a liquidated sum of $122,686.73, it is evident that there were outstanding claims of various subcontractors and that Parker had not submitted proof to the District that all such claims had been paid, or that it admitted that there were such disputed claims and the alleged amounts thereof, which would have authorized the District under the general contract to withhold sufficient monies from the final payment demanded to satisfy such claim if and when they were definitely established as to existence and amounts thereof.

The fact that the District’s engineer certified that the work was completed and approved by him as required by the contract before final payment was due is not proof concerning the existence or lack thereof of outstanding claims and liens claimed by subcontractors or persons furnishing materials to the project and, therefore, is not conclusive upon the issue of the right of Parker to the final payment claimed by it to be due. Furthermore, Parker’s obligation before it was entitled to final payment was not only to complete the project but to obtain a discharge or waiver of all such subcontractor claims. Nor did the engineer’s certificate that the work was completed and approved according to specifications foreclose the District’s right to cross-claim in this litigation for alleged defective workmanship in the construction of the project. This cross-claim was filed in the Airvac main suit prior to the date — July 22, 1976 — when Parker would have been entitled to its final payment had all liens and claims of subcontractors been paid and had the work been free of defective workmanship.

So it is clear from all of the above cited circumstances, coupled with the trial court’s pretrial order, that prior to final judgment herein the claim of Parker against the District was an unliquidated one right up to the time that the court in its findings and final judgment settled the disputed issues and finally determined the principal amount owed to Parker after considering the evidence concerning the alleged setoffs.

We are familiar with the principle of law that in actions ex contractu it is proper to allow interest at the legal rate from the date the debt was due, rather than from the date of judgment. 9a FlaJur., Damages, § 87, and cases cited under footnote 9. But the rule is otherwise where there was not a conclusive determination of the exact amount due at the time of demand for payment. Here, as we have noted, there was a genuine dispute as to what was due on July 22, 1976, because of the various demands and claims of subcontractors outstanding at that time, and the dispute between Parker and the District at that time concerning defective workmanship. It is true that the court in its final judgment found that the amount demanded by Parker was the correct amount, but this was an issue of genuine dispute between these two parties until final hearing and judgment, and the damages did not become certain until the court rendered its judgment. So that in essence the judgment was one for unliquidated damages and the trial court was correct in so holding and in denying prejudgment interest. See Bryan and Sons Corp. v. Klefstad, 265 So.2d 382 (Fla. 4 DCA 1972). In the final analysis it is evident from the record that the subcontractors’ claims for which Parker was responsible caused its claim to be unliquidated at the time Parker demanded payment on July 22, 1976, a date which occurred right in the midst of the litigation between all the parties to the suit below. We, therefore, affirm as to the judgment for Parker against the District in the amount determined by the court, and without prejudgment interest.

We reverse the judgment in favor of Airvac against Technical because of its denial of prejudgment interest. This judgment was for an amount remaining due on a contract whereby Airvac furnished certain valves to Technical who in turn under a subcontract with Parker delivered them to the latter for incorporation into the sewer and water project under Parker’s contract with the District. There was never any denial by Technical of its obligation to pay for these goods, although it was joined as a party defendant in Airvac’s suit against the District and Parker. The trial court, both in its pretrial order and in its final judgment, found that Technical owed Airvac a balance of $14,636.14 for the valves which were incorporated in the system and for which demand for payment by Airvac was made on May 5,1976. No party took exception to this finding. The only question left for consideration concerning this claim is whether Airvac is entitled to prejudgment interest dating from May 5, 1976. We hold that it is because this claim is clearly a liquidated one under the principle set forth in 9a Fla.Jur., Damages, §§ 87, 88 and Bryan and Sons Corp., supra. The trial court erred in not including prejudgment interest on its award of damages to Airvac against Technical. We, therefore reverse this award with directions to the court below to modify the judgment in Air-vac’s favor to include prejudgment interest at the legal rate of interest on the $14,-636.14 awarded, such interest to be calculated from May 6, 1976.

Affirmed in part and reversed in part and remanded for further proceedings below in accordance with the views herein expressed in the last paragraph of this opinion.

ERVIN, Acting C. J., and MELVIN, J., concur.


author: PER CURIAM.

text:
    NATIONAL COMMUNICATIONS INDUSTRIES, INC., Appellant, v. Vincent TARLINI, Appellee.
    No. KK-244.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1979.

      David A. Monaco of Cobb, Cole, McCoy,' Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for appellant.
    Peter L. Niles, Daytona Beach, for appel-lee.
   PER CURIAM.

Appellee entered and won a contest for which the prize was a trip to Rome for two, including transportation, hotel accommodations, and rental car. For various disputed reasons which are not at issue on this appeal, he never took the trip to Rome and he sued the company that ran the contest. During the trial before the court below, appellee was allowed to testify, over objection, as to the amount of damages suffered, based on his conversations with travel agents.

Appellant urges that the testimony given by Mr. Tarlini as to the amount of damages was not competent evidence and, therefore, the $1,700.00 damage award was improper. We agree and reverse.

The testimony was not competent for several reasons. First of all, it was inadmissible hearsay. Secondly, it was opinion testimony by a non-expert and did not come within the exception which would allow non-experts to testify on a subject within common knowledge or about matters they themselves perceive. Finally, the rates testified to were not shown to be available within the time frame of the breach of contract. The damage must be determined as of the date of the breach of contract. Fowler v. Smoak, 57 So.2d 429 (Fla.1952).

Accordingly, we reverse and remand for a new trial on the issue of damages.

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


author: McCORD, Chief Judge.

text:
    GULF STATE BANK, a proposed new bank, Petitioner, v. STATE of Florida, DEPARTMENT OF BANKING AND FINANCE, and Gerald A. Lewis, as Comptroller and Head of the Department, Respondents.
    No. JJ-23.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1979.
    Rehearing Denied March 9, 1979.

      J. Riley Davis of Taylor, Brion, Buker & Greene, Tallahassee, for petitioner.
    S. Craig Kiser, William Lyman, Tallahassee, for respondents.
   McCORD, Chief Judge.

Petitioner seeks review of respondent Department’s denial of its application for authority to organize a corporation for the purpose of conducting a state chartered general banking business in Pensacola Beach, Florida. The application was denied on the ground that the application did not meet the requirements of § 659.03(2)(b), (c), (d) and (f), Florida Statutes (1977). The final order declared that, although petitioner could perhaps remedy the other defects:

“In view of the fact that one of these criteria, ‘local conditions assure reasonable promise of successful operation,’ cannot be remedied by the Applicant, it would not be within the lawful discretion of the Department of Banking and Finance to grant the application.”

The Department reached the above conclusion after a hearing in which evidence was presented as to all factors in § 659.03(2). As to § 659.03(2)(b) (that local conditions assure reasonable promise of successful operation), the Department found that there is no significant commercial activity in the area; that the commercial activity that does exist is relatively small and tourist oriented; that the population base is small though affluent; that the activity and population in the area are highly “seasonal”; that the year-round and some less than year-round residents are estimated to total approximately 4,000 in 1979 and during the tourist season, the estimated population for 1979 is about 8,000. Although petitioner projects deposits for the first three years of operation at 2.5, 3.5 and 4.5 million, respectively, those projections are not supported by the experience of the nearest existing bank, Century Bank, which is located across a toll bridge three miles away. From these findings, the Department concluded that local conditions are not conducive to assuring reasonable promise of success. That conclusion amounts to a discretionary opinion decision which is highly charged with policy considerations for which the Department is responsible. McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1 DCA 1977), and Fraser v. Lewis, 360 So.2d 1116 (Fla. 1 DCA 1978). McDonald and Fraser recognize that although this type of agency discretion within its own area of expertise is within the Department’s realm of authority, it is not unbridled. The Department’s order must sufficiently “expose and elucidate its reasons for discretionary action taken.” McDonald at 584. As in Fraser, we find here that the Department sufficiently elucidated its reasons for its discretionary denial of the bank charter application on grounds that local conditions do not assure reasonable promise of success. Since, as the Department noted, that condition cannot be remedied by the applicant, ■ we do not consider petitioner’s remaining-points contesting the Department’s other reasons for the denial.

Petition for review is denied.

MILLS and ERVIN, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. Naomi MILLS and Tolman Mills, her husband, Appellees.
    No. 78-1535.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1979.
    Rehearing Denied Feb. 23, 1979.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellant.
    Claudos S. Spears of Allison, Spears & Heistand, St. Petersburg, for appellees.
   BOARDMAN, Acting Chief Judge.

Appellant/defendant Kentucky Farm Bureau Mutual Insurance Company (Kentucky Mutual) brings this interlocutory appeal from an order denying its motion to dismiss the amended complaint filed by appel-lees/plaintiffs Naomi and Tolman Mills.

Appellees were involved in an automobile accident in Citrus County, Florida, on February 2, 1976. The accident was caused by Charlotte Kline Black, an uninsured motorist. At the time of this accident appellees were residents and citizens of Kentucky visiting Florida. Appellees had purchased a policy of automobile insurance in Kentucky from Kentucky Mutual on their automobile which was titled and licensed within that state.

Appellees filed suit in the Circuit Court of Citrus County against Kentucky Mutual as their uninsured motorist carrier. Summons was issued on January 18, 1978, and service was had on the Florida Insurance Commissioner. In their amended com- ' plaint, appellees alleged Kentucky Mutual had designated the commissioner as its agent for service of process under Section 624.422, Florida Statutes.

Appellant moved to dismiss that complaint stating that the court lacked jurisdiction over the person of Kentucky Mutual because it conducted no business in the state of Florida; that there was insufficiency of process and insufficiency of service of process; and that appellees had failed to plead sufficient jurisdictional facts. Kentucky Mutual admitted that it had executed a “POWER OF ATTORNEY TO ACCEPT SERVICE OF PROCESS,” but had done so merely to indicate compliance with any applicable financial responsibility laws. By affidavit J. Robert Wade, the president of Kentucky Mutual, testified that Kentucky Mutual is a Kentucky insurance company that has never issued insurance policies within the state of Florida, never transacted insurance business within the state of Florida, and has no employees, insurance agents, or offices within the state of Florida. Kentucky Mutual does not advertise or solicit business in Florida.

The sole issue for our consideration is whether the Florida courts have jurisdiction over Kentucky Mutual.

Service of process on the insurance commissioner will establish personal jurisdiction over an insurer which has expressly appointed the insurance commissioner as its agent to accept service to become authorized to conduct insurance transactions in Florida pursuant to Section 624.422, Florida Statutes, or over an insurer which is unauthorized to conduct insurance transaction in Florida but performs one of the acts set out in Section 626.906. In this case the insurer does not fall into either of those categories.

Section 624.422, Florida Statutes (1977), provides:

(1) Each insurer applying for authority to transact insurance in this state, whether domestic, foreign or alien, shall file with the department its appointment of the insurance commissioner and treasurer and his successors in office, on a form as furnished by the department, as its attorney to receive service of all legal process issued against it in any civil action or proceeding in this state, and agreeing that process so served shall be valid and binding upon the insurer. The appointment shall be irrevocable, shall bind the insurer and any successor in interest as to the assets or liabilities of the insurer, and shall remain in effect as long as there is outstanding in this state any obligation or liability of the insurer resulting from its insurance transactions therein.

It is true that Kentucky Mutual did execute a power of attorney in accordance with this section. However, the operative language of that statute is “[t]he appointment . shall remain in effect as long as there is outstanding in this state any obligation or liability of the insurer resulting from its insurance transactions therein.” Since it is undisputed that Kentucky Mutual had never conducted any insurance transactions in Florida, it is clear that it had no outstanding obligations in Florida resulting from those transactions at the time the insurance commissioner was served in this case.

Section 626.906, Florida Statutes (1977), provides:

Any of the following acts in this state, effected by mail or otherwise, by an unauthorized foreign or alien insurer is equivalent to and shall constitute an appointment by such insurer of the insurance commissioner and treasurer, and his successor or successors in office, to be its true and lawful attorney, upon whom may be served all lawful process in any action, suit, or proceeding instituted by or on behalf of an insured or beneficiary, arising out of any such contract of insurance; and any such act shall be signification of the insurer’s agreement that such service of process is of the same legal force and validity as personal service of process in this state upon such insurer:
(1) The issuance or delivery of contracts of insurance to residents of this state or to corporations authorized to do business therein;
(2) The solicitation of applications for such contracts;
(3) The collection of premiums, membership fees, assessments or other considerations for such contracts; or
(4) Any other transaction of insurance.

Service under Section 626.906 is not binding on appellant since Kentucky Mutual has not conducted any of the acts set out in Section: 626.906.

Appellees further argue on appeal that independent of Sections 624.422 and 626.906, the Florida courts would have personal jurisdiction over Kentucky Mutual because it assumes the position of the uninsured tortfeasor motorist. The insurer in an action brought by its insured under his motorist coverage may raise any defenses which would be available to the uninsured tortfeasor and is as responsible for the damages award as would be the uninsured tort-feasor. Mobley v. Allstate Insurance Co., 276 So.2d 495 (Fla.2d DCA 1973). However, there is no rule or reason to create such a. rule applicable to personal jurisdiction over a foreign insurer based only on jurisdiction over the uninsured tortfeasor. Appellant is correct in pointing out that the test for establishing personal jurisdiction over a defendant is “sufficient minimum contacts” between the defendant and the state where jurisdiction is alleged. See, e. g., International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Drake v. Scharlau, 353 So.2d 961 (Fla.2d DCA 1978).. Furthermore, appellees did not allege any facts establishing such a jurisdictional basis. as required. See, e. g., Cosmopolitan Health Spa, Inc. v. Health Industries, Inc., 362 So.2d 367 (Fla.4th DCA 1978).

Accordingly, the trial court has no jurisdiction over Kentucky Mutual, and the action should be dismissed. We reverse the; order appealed.

REVERSED with directions.

RYDER and DANAHY, JJ., concur.


text:
    Roy Allen FALIN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1737.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Rehearing Denied March 9, 1979.

      Fine, Jacobson, Block, Goldberg & Semet, Theodore Klein, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto and Paul Mendelson, Asst. Attys. Gen., for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The appellant was the co-defendant of Betty Jean Winchell, whose convictions for possession of various items of contraband we considered in Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978). On this appeal, Falin primarily contends that the circumstantial evidence against him was insufficient to support his convictions for the same offenses of which Ms. Winchell had also been found guilty: possession of marijuana, cocaine, methaqualone and a narcotic implement. We agree with this contention and reverse the judgment below.

The facts of the case were accurately summarized in the Winchell opinion at 362 So.2d 993-994:

“. . . Roy A. Falin, was stopped by the police in North Bay Village for the purpose of inquiring as to his presence in the area and to obtain some identification. As a result of this inquiry, Falin was arrested for not having a valid driver’s license. Falin seeking to establish his identity, advised the officer that he was staying with a girl friend (appellant) in room 112 at a Holiday Inn located in North Bay Village. After taking Falin to the police station, a police officer and his sergeant went to the motel to verify the information given by Falin. After checking with the desk clerk, the officers found that the room was registered to Falin, but noted for occupancy by two persons. The officers then proceeded to the room and knocked on the door. Appellant opened the door and, in plain view, the officers saw, among other things, several bags of marijuana, a scale, a pipe, and a box of sandwich bags. After making this observation from outside the room, the officers then entered the room, seized the marijuana and pipe, and arrested appellant for possession of a controlled substance. While appellant was sitting down in the room, the officers observed a firearm in an open suitcase at her feet. The pistol was seized and turned out to be a BB gun which was a replica of a German Luger. In seizing the pistol, two more bags of marijuana in the suitcase were seized. Also, a bag containing cocaine, which was wrapped inside a brown paper bag was seized. During this time, no other search was made. Instead, the room was then sealed by the officers and a search warrant was obtained from the circuit court to search the room. The search conducted pursuant to the warrant revealed additional contraband, including one tablet of methaqualone found in a corner of the room lying on the rug and a bag of cocaine found secreted inside the back of a radio . . . ”

Of prime significance in the consideration of this case is the fact that, unlike Winchell who was in the hotel room when the contraband in question was seized, Falin was in a police station miles away. There was no direct proof whatever as to when he had last been in the room, or whether the drugs and implements had even been present at the same time that he was, much less whether he knew about or had the ability to control them.

While, as we held in Winchell, at 362 So.2d 995, it was demonstrated that Falin was in joint possession of the room where all the contraband was found, there is plainly insufficient evidence of his knowledge and constructive possession of any of the items themselves. Winchell v. State, supra, at 362 So.2d 995; Sindrich v. State, 322 So.2d 589 (Fla. 1st DCA 1975); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967). His conviction therefore cannot stand.

In arguing, as it must, that the circum--' stantial evidence eliminates all reasonable hypotheses of innocence, Davis v. State, 90 So.2d 629 (Fla.1956); State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976), the state: points primarily to two items of circumstan-' tial evidence — Falin’s admission that he owned the BB gun which was found in the suitcase with the two bags of marijuana and his silence in response to a police officer’s question as to whether the drugs which had been found “belonged to him.” The state’s reliance is not justified. Clear-, ly, the BB gun, like any other item of personal property, may have been transported by someone other than the owner; the fact that Falin owned it does not even exclude the hypothesis that he did not know that the gun was present, let alone a lack of knowledge about the drugs. As to the so-called “admission by silence,” even the authorities cited by the state demonstrate that silence constitutes no more than what is itself mere circumstantial evidence of-guilt. As stated in Martinez v. United States, 295 F.2d 426, 429 (10th Cir. 1961):

“An admission may be inferred from silence, where the silence is improper or unnatural . . . ” [emphasis supplied]

In this case, Falin’s silence about the ownership of the drugs is just as reasonably attributable to his desire not to say that they belonged to his friend, Ms. Winchell, as to his unwillingness to admit that they belonged to him.

In sum, there is no evidence in the record which eliminates the perfectly reasonable hypothesis of innocence that the drugs and implement came into the room without Fa-lin’s knowledge and, indeed, after he had ' already left. See also Arant v. State, 256 So.2d 515 (Fla. 1st DCA 1972). The judgment below is therefore reversed and the • cause remanded with directions to discharge the defendant.

Reversed and remanded.

      . In Winchell we reversed even the co-defendant’s convictions for possession of the metha-qualone tablet and the cocaine found in the suitcase and in the radio, because of insufficient evidence of knowledge and constructive possession. Her convictions for possession of marijuana and the narcotics implement were affirmed only because they were in her plain view on top of the dresser when she was arrested in the room. The former holding applies, in spades, to Falin. The latter holding obviously, however, has no application whatever to his situation.