text:
    William Peter WRIGHT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. CC-424.
    District Court of Appeal of Florida, First District.
    June 27, 1977.
    Samuel S. Jacobson of Datz, Jacobson & Dusek, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

William Peter Wright, Jr. (hereinafter referred to as appellant) was indicted, tried and convicted of murder in the first degree and sentenced to life imprisonment, to serve 25 years before becoming eligible for parole. This appeal is from the judgment of conviction and sentence.

Laura Wright, wife of appellant, was found dead after being buried in a hole dug by a bulldozer operated by appellant. The scene of the event was a farm operated by appellant’s father and employer. Appellant asserted in the trial, and asserts here, that the death of his wife was accidental. The State’s contention was, and is, that death was caused by the intentional and premeditated act of appellant in first striking or otherwise causing serious bodily injury to his wife and thereafter burying her with the bulldozer.

The primary contention of appellant is that the only evidence of premeditation introduced in the trial was that of the associate medical examiner of the City of Jacksonville that the deceased had suffered severe injuries before burial. Appellant argues that such was (if admissible) only an inference drawn by him from the examination of the body of the deceased shortly after death. Moreover, such inferences were made by the doctor, a medical expert, far beyond his competence as an expert witness and were, therefore, incompetent. Appellant asserts that the State relies wholly on this evidence as proof of premeditation and cites the opening statement of the State’s attorney before the jury, viz: “We don’t have to consider anybody’s testimony except that of [the medical examiner] and that of the defendant”. Our review of the record convinces us that this is true for, as hereafter set forth, the appellant’s version of the events of the afternoon and evening of the death to the effect that the death was accidental is not controverted except by the inference and deductions of the medical examiner drawn from his examination of the body that injuries of a serious nature had been inflicted on the deceased shortly prior to being buried, and that, in his opinion, such injuries were not caused by the bulldozer or in the process of being buried by the bulldozer. The vital question here is whether the medical examiner was qualified to so testify and convey to the jury his conclusions that there had been prior substantial injuries which contributed to the ultimate death by suffocation.

At the threshold, however, we are faced with the fact that the appellant never interposed any objection to the medical examiner’s testimony. The State says it - is now too late to do so. Appellant argues that the effect of the evidence was so devastating, so extensive and prejudicial that its influence so pervaded the trial that it prevented a calm and dispassionate consideration of the case and a conviction could not have occurred otherwise; therefore, the error was fundamental and should be considered by this Court regardless of objection. Moreover, even if such evidence is now beyond review, we must consider the fact that there were no witnesses to the events causing death. There is no direct evidence of the forces which produced death. The State relies on the circumstances bearing on the case and, particularly, the deductions and inferences drawn from these circumstances to prove that the deceased met her death through the premeditated, deliberate acts of appellant. In an unbroken line of cases, the courts of this state have held that, under such conditions, the evidence must be not only consistent with guilt but inconsistent with innocence, or any reasonable hypothesis thereof. It is the total exclusion of every reasonable hypothesis of innocence which clothes mere circumstances with the force of proof of guilt. “If the facts in proof are equally consistent with some other rational conclusion than that of guilt, ... if the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be.”

The State, in its brief here, accepts the statement of facts presented in appellant’s brief (but not appellant’s assertion that the order of proof was significant). In view of this, we quote, verbatim, that portion of appellant’s brief, viz:

“State’s Case
“A worker at the Wright dairy barn testified that around 10:00 P.M., on November 10, 1975, Wright came to the barn with his wife and then drove with her out into a pasture.
“A short while later Ralph and Betty Jo Higginbotham, Wright’s sister and brother-in-law, who lived at the dairy, heard the Wright bulldozer which was parked in the pasture start up and continue running. Higginbotham immediately got into his pickup truck and drove to the pasture. As he first entered the pasture he could from a distance see somebody crawling on his hands and knees in the lights of another pickup truck or of the bulldozer. As he drew nearer the other pickup truck came out to meet him. At that point he found that the driver of the other truck was Pete Wright.
“As the trucks met, Wright said, ‘Ralph, Ralph, you’ve got to help me . . .1 buried Laura with the bulldozer.’ The two men then drove to the bulldozer and began to dig for her with their hands in a new hole approximately ten feet long and wide and three feet deep at the deepest part.
“When they were unable to locate Laura within a few minutes, Wright said he was going to use the bulldozer to try to dig her out.
“Then with the brother-in-law walking slowly alongside as a guide, Wright began to reexcavate the hole with the bulldozer. They made one push almost all the way across the hole and then saw Laura’s arm come up from under the blade. The brothér-in-law shouted to Wright who backed the bulldozer away. The two young men then got down in the hole and began to dig out around the girl with their hands. They dug the body out as far as her waist. Higginbotham checked for a pulse, and Wright began to give mouth-to-mouth artificial respiration. They shortly determined, however, that she could not be resuscitated.
“The two men then left to report what had happened.
“The Associate Medical Examiner for the City of Jacksonville testified that the immediate cause of death was suffocation from inhalation of dirt and mud. In addition he reported blunt, crushing wounds to the chest and upper thorax area and severe similar head and neck injuries, all of which would have been fatal but for the suffocation. Additionally he noted bruises and a severe laceration upon the lower extremities.
“The balance of the state’s case consisted only of descriptions of the death scene.
“Defense Case
“The principle defense witness was Wright.
“Wright testified that the night in question had started happily enough. After he got off work, the couple went to Jacksonville and bought Laura Wright a car.
“They then returned to their home in Callahan. They had supper, and Wright began to watch the Monday night professional football game. During the course of the evening they had two or three beers.
“While Wright was watching the football game, Laura Wright began to argue with him about a life insurance policy which she thought was being kept in force for Wright’s former wife. This developed into a spat.
“As the argument subsided, they decided during halftime to go for a ride, a good way they had found to get over quarrels. They intended to ride out to see some deer that had been feeding on sorghum planted by Wright’s father in a pasture.
“As they were riding Laura Wright became upset and despondent. She ultimately said she wished she were dead, a statement she had made during previous despondencies.
“Wright testified that things had been going very well for them and that he therefore became impatient with his wife’s attitude. He responded with ‘ . . .if that’s what she wanted, we could arrange that.’ He said that he did this to shock her and show her she really didn’t want to die. He testified he was mad.
“When Mrs. Wright did not desist, he thought he would call her hand by digging a grave for her. He started the bulldozer and dug a hole, figuring ‘ . that would have been it.’ But instead of backing down, Mrs. Wright walked into the hole and lay down in it.
“This, said Wright, surprised him. He decided to scare her out of the hole or call her bluff by pushing a little dirt into the hole. He then shoved some dirt forward and backed the bulldozer up, expecting to see his wife get up and out of the hole. He said he did not think he had pushed enough dirt even to get to where he had seen her lying.
“He then said, ‘All right, Laura, get up.’ When she did not get up he walked over to the hole. At that point he realized, he testified, that she was covered up and jumped into the hole and began to dig frantically with his hands. While he was digging he saw his brother-in-law’s truck approaching and hurried to it for help. His testimony as to the events from that point on was just as his brother-in-law’s had been.
“A land surveyor testified to the exact dimensions of the hole. He said 8.6 cubic yards of dirt had been excavated from it and only 2.8 yards (32V2%) had been pushed back.
“A car salesman testified to the purchase of a car for Mrs. Wright just three or so hours before the fatal events.
“A Caterpillar heavy equipment salesman testified to the very limited speed of the bulldozer and to the inability of the operator to see immediately in front of the blade.
“Various other defense witnesses, including the decedent’s brother, testified to her emotional volatility. A psychiatrist who had previously treated her testified to a history of suicidal impulses.”

Dr. Legowik is a medical doctor. He received his M.D. from Northwestern and was an intern and resident in pathology at Western Memorial Hospital; thereafter, four years of forensic science and one year of forensic pathology. He said he was a specialist in pathology and had been employed as a forensic pathologist for seven years and that he had been qualified as an expert witness in forensic pathology “in excess of 40 or 50 times”. He was offered as an “expert witness in the field of forensic pathology” and, without objection, accepted by the court as such.

Dr. Legowik testified to the effect that the deceased had been injured prior to burial. That constituted the principal element of the state’s theory of premeditation and that, the appellant says was wholly beyond the competence of a forensic pathologist to give. The thrust of his testimony was that the deceased’s injuries were consistent with being bulldozed in the hole after injury, that many of her injuries had not come from being run over by the bulldozer after burial or during the effort to dig her out, nor had they been inflicted by the treads of the machine, that the pattern of injuries was inconsistent with appellant’s story of the events culminating in her death. Examples of such testimony are:

“Q It is consistent with the facts as you know them that the injury could have occurred after the body was covered with the dirt?
“A Remotely possible, but the linear distribution of the injury, the fact that the injury is so linear and relatively clear-cut, one would have to suppose that only a very shallow amount of dirt would have been present, if anything, if the injury were supposed to have occurred as the dirt was placed over the body, because any significant amount, say, more than about two or three inches, would have distributed the force of the injury over a wider area. Because of the nature of the material, it would act sort of like a fluid distributing the energy so that the more material between the body and the striking agent, the more diffuse the pressure is exerted. If you have a very narrow object, you need only apply a small amount of force to create a fairly large amount of injury, but as you widen the area of application of the force to the body, you could apply a large amount of force if you distribute the energy over a wide area, such as — take large balloon tires, or some large—
“Q Excuse me, Doctor.
“A O.K.
“Q Are you saying if she were insulated or protected by a thick coat of dirt, those injuries would not have been caused?
“A I don’t feel that linear pattern of injury would have occurred if a thick coating of the type of earth that I saw at the scene were present over the body.”
“Q Would that injury, then, have been consistent with the blade contacting the body in that manner and then passing on upon her head?
“A I don’t think so. The reason is, if this were, in fact — we see from the way she was in the hole that, whatever the orientation of the body was, the legs and feet were at a lower level than the hips, because you could see the hips when you looked at the upper part of the body. Now, this type of moist earth acts as an anchor for anything to stick in it. Now, if you take a soft body and anchor it and then take a ’dozer blade and scrape over the top of the body, you might get injury, but you will get scraping and abrading type injuries. The injuries are more of a contact type, crushing type, injuries than they are scraping or abrading type injuries.
“Now, the injuries associated with the neck injury, you might speculate that these could be associated with some sort of scraping type, but it would be a motion of only three or four inches backwards and forwards. If the body was really anchored, was embedded in this earth, the several thousand pound bulldozer would have proceeded to separate portions of the body from the other parts of the body. The body wouldn’t — the body wouldn’t stay together. Part of it would be anchored and the other part would be moved off away for her. There was no evidence of any other scraping type injury on the back, legs, buttocks or the like.
* # * # # #
“Q It has been suggested that the treads on the bulldozer went up on to the body of Laura Sykes Wright while she was still in the earth. If that were so, would that explain or be consistent with the crushing type injuries to her upper chest and head which you described?
“A I don’t think so. Now, as I think about this, the reason I have for this is as follows: If the legs are extending out in this fashion (drawing), in order for the treads, if the body is extending out here, which is about the direction it would have to be — in order for the tread to pass over here, it’s going to have to pass over her pelvis and her legs. There were no pelvic fractures, there were no hemorrhage in the posterior left side of the thorax — not the thorax, but of the abdominal wall. There were no bruises of the thighs, there were minimal bruises, and the only significant abrasion or laceration type wounds are those present over the top of the feet, and the top of the feet would be directed away from the direction of travel; so that if the injuring force was coming in this direction, it would encounter the bottom of the feet first. The only way it would possibly hit the top of the feet is when it was passing backwards, if, in fact, it was. But the injuries on the other portions of the body, to me, make it — I find it difficult to believe that no injuries at all occurred until a cleat got up to her chest. Bulldozers don’t scrape along, you know — and she was five foot five — these occurred, say, about two-thirds up her upper body. This would mean that the ’dozer treads would have to be just about four feet between the center of the one here and the next one. To me, I don’t recollect them being that far apart.”

This testimony of the medical examiner was the only testimony, if competent that tended to establish premeditation. The verdict of guilty must be supported by this evidence to stand. We hold such evidence was beyond the competence of the medical examiner to give. The theory of allowing evidence of an expert witness to be received by the triers of fact is to understand and determine an issue of fact. He must be qualified by knowledge, skill, experience, training or education to express an opinion.

The effect on the verdict of the evidence of the expert here was so obvious and extensive that its admission falls within the definition of fundamental error which this Court may and should review, in the interest of justice, regardless of objection at the trial level.

Now reverting to those authorities cited in the opening portions of this opinion concerning circumstantial evidence and the inferences to be drawn therefrom, the inference drawn by Dr. Legowik is not inconsistent with the inference that such injuries could have arisen from the conduct of the deceased beyond the view of the appellant after entering the hole, and beyond his sight. Nor can it be said that appellant’s testimony and the undisputed events which transpired in the afternoon and evening of the death are not “[p]roof[s] consistent with some other rational conclusion than that of guilt” of premeditated murder.

Appellant was the only eyewitness to the death of his wife. His version of the events, if true, would not establish criminal intent, and the other circumstances do not show beyond a reasonable doubt that there was a criminal killing. Under these circumstances, the law is that the appellant’s story must be accepted.

In the Drigger’s case the defendant was charged with murdering his wife by throwing her off a railroad bridge. There, as here, there were prior marital problems. The husband’s version of the death was, as in this case, despondency of the wife and her assertion she was going to kill herself. In his attempt to stop her, he testified they struggled and she fell in the water below causing her death. The pathologist in that case testified the cause of death was suffocation — not drowning — that there were other wounds and physical evidence at the bridge indicating prior injury or death. The Supreme Court in that case, a much stronger case for conviction than this, reversed, holding that “all the evidence” in the case was “as consistent with [defendant’s] version of the tragedy and with his innocence as it was with his guilt”, and so it is here.

REVERSED AND REMANDED FOR A NEW TRIAL.

McCORD, Acting C. J., and DREW, E. HARRIS, and MASON, ERNEST E., (Ret.) Associate Judges, concur.

      . Tyus v. Apalachicola Northern Railroad Company, 130 So.2d 580, 587 (Fla.1961).

      . Head v. State, 62 So.2d 41 (Fla.1952); Bellamy v. State, 96 Fla. 808, 119 So. 137 (1928); and Frank v. State, 121 Fla. 53, 57, 163 So. 223, 224 (1935).

      .Mayo v. State, 71 So.2d 899, 904 (Fla.1954).

      . This quotation is from Gustine v. State, 86 Fla. 24, 97 So. 207 (1923), reaffirmed in Parish v. State, 98 Fla. 877, 124 So. 444, 445 (1929), and again in Head v. State, 62 So.2d 41, 43 (1952).

      . Forensic — “Pertaining to, connected with or used in Courts of law or public discussion and debate; adopted or suited to argumentation.” Pathology — “The science of the origin, nature and course of diseases; also, the sum of the morbid conditions and processes in a disease.” The New Century Dictionary.

      . See Florida Evidence Code — (Effective 7-1-77). Also paragraph 90.702, Fla.Stat. (1976). Also Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1975); Behm v. Division of Administration, State of Florida, Department of Transportation, 292 So.2d 437 (Fla. 4th DCA 1974); and Milis v. Redwing Carriers, Inc., 127 So.2d 453 (Fla. 2d DCA 1961).

      . Rule 6.16, FAR provides: “ . . . The court may also in its discretion if it deems the interests of justice to require, review any other things said or done in the cause which appear in the appeal record . ..”

        .Head v. State, supra.

      . Holton v. State, 87 Fla. 65, 99 So. 244 (1924); Jenkins v. State, 120 Fla. 26, T61 So. 840 (1935); Kelly v. State, 99 Fla. 387, 126 So. 366 (Fla. 1930); Metrie v. State, 98 Fla. 1228, 125 So. 352 (Fla. 1930); Getsie v. State, 193 So.2d 679 (Fla. 4th DCA 1967); and In the Interest of G.C.O., a child v. State, 309 So.2d 608 (Fla. 2d DCA 1975). See also Hodge v. State, 315 So.2d 507 (Fla. 1st DCA 1975); and Weinstein v. State, 269 So.2d 70 (Fla. 1st DCA 1972).

      . Driggers v. State, 164 So.2d 200 (Fla. 1964).


source: Caselaw Access Project

author: PEARSON, Judge. HUBBART, Judge

license: Public Domain

text:
    POINT EAST ONE CONDOMINIUM CORPORATION, INC., et al., Appellants, v. POINT EAST DEVELOPERS, INC., et al., Appellees.
    No. 76-469.
    District Court of Appeal of Florida, Third District.
    June 28, 1977.

      Becker & Poliakoff and Alan S. Becker, Miami Beach, for appellants.
    Steel, Hector & Davis and Darrey A. Davis, Coral Gables, Broad & Cassel and Lewis Horwitz, Bay Harbor Island, for ap-pellees.
    Robert L. Shevin, Atty. Gen., as amicus curiae.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

This is an appeal from a final order dismissing the complaint of (1) condominium associations in several large condominium development units and (2) the individual condominium owners as the claimed representatives of a class of all the owners. The complaint sought a declaration that a 99 year recreational facility lease is unlawful and void. The defendants are (1) the developer of the condominiums, (2) the lessors of the recreational facility lease, and (3) two savings and loan associations alleged to have joined in the declarations of condominium, to have supplied capital for the development and to be holding mortgages encumbering the property. The Attorney General of Florida moved for and was granted leave to file a brief as amicus curiae.

The complaint is in five 'counts, all seeking essentially the same relief and based upon the same ultimate facts, but urging different claims for the illegality of the recreational facility lease. Primarily, the counts are as follows: Counts one and two claim that the lease is void because of the Florida Deceptive and Unfair Trade Practices Act, Section 501.201, et seq., Florida Statutes (1975). Count three claims that the lease violates the Florida Condominium Act, specifically Section 711.66(5)(e), Florida Statutes (1975). Count four claims that the lease violates, by way of its provision for a lien upon the individual units for unpaid rent, the Florida Constitutional ban upon forced sale of a homestead. Count five claims that all of the defendants, including the savings and loan associations through their actions of drafting, approving and execution of the declarations of condominiums and the recreational facility lease, violated Chapter 542, Florida Statutes (1975), which prohibits combinations restricting trade and commerce.

The trial judge in his final order of dismissal set out the basis for his order as follows:

“The subject Community Facility Lease was executed, and the vested rights and obligations of the parties accrued thereunder more than seven years prior to the enactment and effective date of the Florida Deceptive Practices Act and more than eight years prior to the enactment and effective date of the amendment to the Condominium Act. At the time of execution, such leases were authorized by the Condominium Act (Section 711.121, Florida Statutes). The relief sought by plaintiffs would result in the destruction of the pre-existing vested rights of the defendants under the Community Facility Lease. The legislation relied on as the basis for the relief sought in this cause cannot be applied retrospectively to the subject Community Facility Lease without infringing upon the constitutional inhibition against impairment of the obligation of contracts. Plaza del Prado Condominium Association, Inc. v. The Del Prado Management Company, Inc., Fla.App. 1974, 298 So.2d 544; Trustees of Tufts College v. Triple R. Ranch, Inc., Fla.1973, 275 So.2d 521.
“The allegations as to violations of the Florida Deceptive Practices Act and the 1974 amendment to the Condominium Act are incorporated and made a part of all counts of the complaint. The supplemental allegations that the Community Facility Lease also violates the letter and intent of Article X, Section 4, Florida Constitution, is legally insufficient as a basis for the relief sought under any set of factual circumstances. The claim against the defendant savings and loan associations charging that their actions in making mortgages in connection with the condominium project constituted a combination in violation of Chapter 542, Florida Statutes, is legally insufficient as a basis for the relief sought under any set of facts which could be proved.”
* * * * * *

Plaintiffs’ brief on appeal presents four points, each urging error upon the trial court’s order in failing to rule that the complaint afforded a basis for relief upon one of the legal theories advanced in the several counts of the complaint.

The complaint alleges that the defendant developer submitted its land to condominium by filing a declaration of condominium. Each unit owner, simultaneous with his purchase of a unit at the condominium complex, under the declaration of condominium, became a lessee under the Recreational Facility Lease. The Lease provided for a lien which could be enforced against an individual apartment unit in case the owner of said apartment defaulted in payment of rent prescribed by the lease, as well as a lien upon the assets and common surplus of the association, said lien being a first lien paramount and superior to all others upon any right, title, and interest of the lessees in and to the lease of the demised premises therein. Also, the Lease is made binding on all successors in title to the individual condominium apartments, and the lien provisions constitute a covenant running with the land, even if the condominium itself is terminated.

By virtue of the Lease, each unit owner is obliged to pay a specified sum each month for ninety-nine years, with the sum to be increased in accordance with a cost of living index, but without a corresponding provision for a decrease should the cost of living decrease. Such payments are required by each unit owner regardless of whether the unit owner uses the facilities or not. Additionally, a transferee of a unit must assume performance of the transferor’s obligations as a lessee under the Lease. And, the Lease provides that the assignment of said Lease and conveyance of the lessee’s apartment unit must be simultaneous.

The complaint further alleges that Point East Condominium complex and its facilities have consumer appeal and are unique because of their location, price and the facilities offered. Plaintiffs argue that the facilities, services or personalty involved under the Lease are not part of the sales price or other part of the condominium unit but are separate and distinct facilities, personalty or services. The result is that by offering to sell a unique item with consumer appeal, the defendant developer had sufficient leverage to induce the plaintiffs to accept the ninety-nine year Lease. Plaintiffs argue that the revenues collected under the Lease are unconscionable in that such revenues will eventually exceed several million dollars per year and will be collected well after the defendants have no economic interest left in the condominium complex.

In addition, the above activities of the defendants are alleged to restrain trade because they exclude condominium buyers from exercising their own free choice in selecting other recreational facilities, services or personalty, and preclude competitors of the defendant from offering the same or similar facilities to the plaintiffs. Such activities, therefore, are said to be unscrupulous, unethical, oppressive, and are damaging to the plaintiffs as purchasers of the units of the condominium complex, because plaintiffs are forced to pay fees for recreational facilities which are higher and more restricted than the same or similar facilities available, or that would be available, in a free competitive market. Such activities are said to be damaging to competitors, present or potential, in that such competitors are precluded from offering recreational facilities to the plaintiffs on a competitive basis.

The plaintiffs believe that the Lease agreement, when combined with the sale and resale of the condominium units, constitutes an unlawful tying agreement resulting in unreasonable restraint of trade and the destruction of competition within the lessees’ and defendants’ area of business. Such tying agreements also constitute a per se violation of the Sherman Antitrust Act (15 U.S.C. § 1).

We think that the trial judge’s holding that the Florida Deceptive and Unfair Trade Practices Act does not render the lease void is well supported by the reasoning of the Supreme Court of Florida in Fleeman v. Case, 342 So.2d 815 (Fla.1976). In that opinion, the court, in refusing to apply retroactively Section 711.231, Florida Statutes (1975), “Escalation clauses in leases for recreational facilities or management contracts for condominiums prohibited,” held:

“Even were we ■ to conclude that the Legislature intended retroactive application of this statute, we would be compelled to hold it invalid as impairing the obligation of contract under Article I,, Section 10 of both the United States and Florida Constitutions. Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla.1975). While we ordinarily do not reach constitutional questions not necessary to the disposition of the case, in this instance the principal contention of the parties and the rulings of the trial courts below were predicated on this constitutional issue. Therefore, we deem it appropriate to resolve this issue in this proceeding.”

See also Cragin v. Ocean & Lake Realty Co., 101 Fla. 1324, 135 So. 795 (1931), and Board of Trustees of Internal Improvement Trust Fund v. Medeira Beach Nominee, Inc., 272 So.2d 209 (Fla.2d DCA 1973). Cf. Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.), case no. 48,753, released March 31, 1977.

The holding of the trial judge that Section 711.66(5)(e), Florida Statutes (1975), is inapplicable is supported by the recent opinion of the Supreme Court of Florida in the Avila South case cited immediately above. This section of the Florida Condominium Act was passed by the legislature in 1974 as an amendment to the Act. The portion of the amendment relied upon by the plaintiffs is:

“711.66(5)(e)
Any grant or reservation made by a declaration or cooperative document, lease, or other document, and any contract made by an association prior to assumption of control of the association by unit owners other than the developer . shall be fair and reasonable . . . ”

This portion of the amendment does not set new standards or requirements for recreational facility leases. It is, in its broad language, a restatement of the public policy of the State as it applies to recreational addenda and management contracts made between a condominium developer in his capacity as a developer, on the one hand, and in his capacity as an owner of condominiums, on the other hand. The courts of this state have long reserved the right to refuse to enforce unconscionable contracts. See the general rule in Peacock Hotel v. Shipman, 103 Fla. 633,138 So. 44 (1931), for the proposition that where

“ . . . one party has overreached the other and has gained an unjust and undeserved advantage which it would be inequitable to permit him to enforce, . a court of equity will not hesitate to interfere, even though the victimized parties owe their predicament largely to their own stupidity and carelessness.”
******

See also Halstead v. Florence Citrus Growers’ Ass'n, 104 Fla. 21, 139 So. 132 (1932). Cf. Stewart v. Stearns & Culver Lumber Co., 56 Fla. 570, 48 So. 19 (1908). Thus, we agree with the trial judge that the amendment may not be considered as engrafting new requirements upon old contracts, but we hold that this fact does not preclude proof under the allegations of this complaint that the recreational facility lease is so unconscionable as to be unenforceable in the courts of Florida. We are encouraged in this holding by the recent pronouncement of the Supreme Court of Florida in Fleeman v. Case, 342 So.2d 815 (Fla.1976), where the court in dealing with recreational facility leases said:

“Given the narrow issue presented by these appeals we do not decide questions as to the validity of these leases on any other grounds. Thus, although there is reference to the possibility that in some instances lease arrangements for individual unit owners may be unconscionable, inequitable or contain other deficiencies recognized in law as a basis for judicial invalidation, these matters are not considered or decided here.”

We, therefore, conclude that the third count of the dismissed complaint does not, in its present form, wholly fail to state a cause of action. Cf. Fouts v. Margules, 98 So.2d 394 (Fla. 3d DCA 1957), and Hunter v. Fairmount House, Inc., 191 So.2d 92 (Fla. 3d DCA 1966). Therefore, in accordance with the holding in Avila South (supra), we will, on remand, direct that the plaintiffs be allowed to amend count three upon the possibility of stating an amended claim of unconscionability independent of Section 711.66(5), Florida Statutes (1975).

Plaintiffs’ count four claims that the provision of the Recreational Facility Lease which provides for a lien upon their condominiums for unpaid rent on the Recreational Facility Lease is violative of the Florida Constitution in that it may call for the forced sale of a homestead forbidden by Article X, Section 4, of the Florida Constitution. The possibility that a forced sale of a homestead might under some circumstances arise in the future does not form a basis for a declaration that the lease is unenforceable. The prohibition against forced sale of a homestead is a prohibition against the use of process for that purpose. It does not invalidate the debt or the lien, but under certain circumstances, merely takes priority over the debt or lien. See, for example, Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912), and Quigley v. Kennedy & Ely Insurance, Inc., 207 So.2d 431 (Fla.1968). We, therefore, do not reach the question of whether the lien is exempted from the constitutional prohibition by the method of its creation at the time of the purchase of the condominium. See Platt v. Platt, 50 Fla. 594, 39 So. 536 (1905). The complaint gives no facts which would entitle any of the plaintiffs to a declaration of their possible rights in the future. See Hunt v. Smith, 137 So.2d 232 (Fla. 2d DCA 1962), and Perry v. Genung, 163 So.2d 54 (Fla. 2d DCA 1964). Nevertheless, in accordance with the holding of the Supreme Court of Florida in Avila, South (supra), we direct that plaintiffs be given leaye to amend this count on remand.

The fifth count of the complaint is based upon the allegation that the developer and the savings and loan associations providing the capital violated Chapter 542 Florida Statutes (1975), which is entitled “Combinations Restricting Trade and Commerce.” The count alleges that the plaintiffs believe that the defendants’ activities above described, the declarations and the lease constitute a violation of the above-quoted statutes in that they prevent the plaintiffs and members of the class they represent from exercising their own free choice in selecting other recreational facilities and services, and preclude the competitors of the defendants from offering the same or similar facilities to the plaintiffs. A recreational facilities lease is recognized by the law as a valid adjunct to a condominium purchase. See Point East Management Corporation v. Point East One Condominium Corporation, Inc., 282 So.2d 628 (Fla.1973), cert. denied, at 415 U.S. 921, 94 S.Ct. 1421, 39 L.Ed.2d 476 (1974). The complaint does not allege facts sufficient to show a combination in order to restrain trade.

Accordingly, the trial court’s final order as to the dismissal of counts 1, 2 and 5 is affirmed, and as to counts 3 and 4 is reversed with leave to amend, and the cause is remanded for further proceedings in accordance with this opinion.

Affirmed in part, reversed in part and remanded.

HUBBART, Judge

(concurring in part; dissenting in part).

I concur in the court’s disposition of this case as to counts I-IV of the plaintiffs’ complaint for the reasons stated in Judge Pearson’s able opinion. I must respectfully dissent as to the court’s affirmance of the dismissal on count V of the plaintiffs’ complaint.

The issue presented for review as to count V of the complaint is whether a combination of capital or acts by a condominium developer together with certain savings and loan associations to sell condominium units with unique consumer appeal on the condition that the purchasers become lessees on a ninety-nine year recreational lease in which the developer is the lessor constitutes an illegal tying arrangement prohibited by the state anti-trust act at Section 543.05, Florida Statutes (1975), thereby making the recreational lease invalid. I would reverse the dismissal of this count and hold that such a recreational lease is an illegal tying arrangement prohibited by the state anti-trust act.

I

The plaintiffs’ complaint at count V alleges that the defendant developer and the defendant savings and loan associations became engaged in a combination of capital and acts to sell, and did sell certain condominium units with unique consumer appeal to the plaintiffs on an alleged illegal condition, namely, that the plaintiff purchasers obligate themselves as lessees on a ninety-nine year recreational lease in which the defendant developer was the lessor. The lease allegedly contained an escalating rent clause and required the condominium unit owners to pay for the taxes, insurance and all operation and maintenance costs for the life of the lease.

The complaint in this count further alleges that by offering to sell condominium units with unique consumer appeal, the defendant developer had sufficient economic leverage in this market to induce the plaintiff condominium owners to agree to be lessees on the aforesaid recreational lease. The defendant developer allegedly filed a declaration of condominium and submitted the recreational lease containing the aforesaid tying arrangements. The defendant savings and loan associations allegedly provided the capital in furtherance of the sale herein and participated in the drafting and/or approval of the above declaration of condominium and recreational lease. The condominium unit owners sought a declaratory judgment voiding the recreational lease, an injunction restraining the future enforcement of said lease and a money damages award.

The defendants filed respective motions to dismiss the complaint contending in effect that the facts alleged in the complaint, even if true, were legally insufficient to invalidate the recreational lease herein. The trial court entered an order granting the defendants’ motions to dismiss on this ground holding in effect that the complaint stated no facts, even if true, which would invalidate the recreational lease. I respectfully disagree.

II

The relevant section of Florida’s antitrust act at Section 542.05, Florida Statutes (1975), makes the following activity unlawful:

“(1) Any person who shall or may become engaged in any combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons or of either two or more of them, for either, any or all of the following purposes:
(a)To create or carry out restrictions in trade or commerce or aids to commerce, or to create or carry out restrictions in the full and free pursuit of any business authorized or permitted by the laws of this state;
(b) To increase or reduce the price of merchandise, produce or commodities;
(c) To prevent competition in the manufacture, making, transportation, sale, or purchase of merchandise, produce, or commodities, or to prevent competition in aids to commerce;
(d) To fix . at any standard or figure whereby its price to the public shall be in any manner controlled or established any article or commodity of merchandise, produce, or commerce intended for sale, use, or consumption in this state; . . . .”

Any contract or agreement made in violation of the above act is void and unenforceable. Section 542.10, Florida Statutes (1975). An action for damages also lies for violation of the above act. Hardrives Co. v. East Coast Asphalt Corp., 166 So. 2d 810 (Fla. 2d DCA 1964).

Florida’s anti-trust act was originally passed in 1915 and is patterned after the Sherman Anti-Trust Act at the federal level. 15 U.S.C. § 1 (1973). Its purpose is to prevent undue or unreasonable restrictions on free competition which are detrimental to the public welfare and obnoxious to public policy. City Gas Co. v. Peoples Gas System, Inc., 182 So.2d 429 (Fla.1965); Lee v. Clearwater Growers Ass’n, 93 Fla. 214, 111 So. 722 (1927).

We deal here with a tying arrangement under anti-trust law wherein a party sells one product in which it has economic leverage to a buyer on the condition that the buyer agrees to purchase another product. Such arrangements have generally been struck down under laws forbidding unreasonable restrictions on free competition since they deny competitors free access to the market for the tied product solely because of the seller’s economic power or leverage on the sale of the main product. Long v. Arizona Portland Cement Co., 89 Ariz. 366, 362 P.2d 741 (1961); Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal.3d 842, 94 Cal.Rptr. 785, 484 P.2d 953 (1971); State ex rel. Brown v. Napoo, 44 Ohio App.2d 140, 336 N.E.2d 439 (1975); Southern Health Ass’n v. Harris Memorial Methodist Hospital, 180 S.W.2d 169 (Tex. Civ.App.1944); Wright v. Southern Ice Co., 144 S.W.2d 933 (Tex.Civ.App.1940).

The United States Supreme Court in Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958) states the applicable law on tying arrangements under anti-trust law:

“For our purposes a tying arrangement may be defined as an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier. Where such conditions are successfully exacted competition on the merits with respect to the tied product is inevitably curbed. Indeed ‘tying agreements serve hardly any purpose beyond the suppression of competition.’ Standard Oil Co. v. United States, 337 U.S. 293, 305, 306, 69 S.Ct. 1051, 1058, 93 L.Ed. 1371, 1382. They deny competitors free access to the market for the tied product, not because the party imposing the tying requirements has a better product or a lower price but because of his power or leverage in another market. At the same time buyers are forced to forego their free choice between competing products. For these reasons ‘tying agreements fare harshly under the laws forbidding restraints of trade.’ Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 606, 73 S.Ct. 872, 879, 97 L.Ed. 1277, 1288.’’

In the instant case, the defendant developers in combination with the defendant savings and loan association allegedly sold condominium units with unique consumer appeal. Using its economic leverage in this market, the defendants have allegedly conditioned the sale of such units on the condominium unit owners’ agreement to buy another tying product, to wit: the ninety-nine year recreational lease. As such, the alleged lease is clearly a tying arrangement under anti-trust law which restrains free competition in the recreational lease market.

The economic leverage which condominium developers have in the sale of condominium units over individual purchasers of such units has often been judicially noted. Avila South Condominium Ass’n v. Kappa Corp., 347 So.2d 599 (Fla.) (Case No. 48,753, opinion filed March 31, 1977) (England, J., concurring); Point East Management Corp. v. Point East One Condominium Corp., 282 So.2d 628 (Fla.1973) (Ervin, J., dissenting); Fountainview Ass'n v. Bell, 214 So.2d 609 (Fla.1968) (Ervin, J., dissenting). Condominium developers sell housing units with unique consumer appeal to an ever expanding population in Florida who are in need of reasonable housing. As such, the developers occupy a unique economic position in this seller’s market which they should not be able to misuse by conditioning the sale of condominium units on the purchaser’s agreement to become obligated on another contract, such as a ninety-nine year recreational lease. Such action constitutes an unreasonable restriction on free competition in the recreational lease market which is detrimental to the public welfare and obnoxious to public policy. City Gas Co. v. Peoples Gas System, Inc., 182 So.2d 429 (Fla.1965); Lee v. Clearwater Growers’ Ass’n, 93 Fla. 214, 111 So. 722 (1927).

The Fifth Circuit Court of Appeal in Miller v. Granados, 529 F.2d 393 (5th Cir. 1976), has recently struck down such tying contracts in condominium unit sales under antitrust law. The Court held that a complaint charging an anti-trust violation against certain condominium developers for requiring condominium unit owners to accept an exclusive management contract for managing the condominium complex as a condition for purchasing the condominium units stated a good cause of action under the Sherman Anti-Trust Act since the management contract was an illegal tying arrangement. The court stated:

“Under the aforementioned authorities we find that Count I of the complaint alleges all of the elements of a tie-in arrangement involving a not insubstantial amount of interstate commerce, and sufficient economic leverage in the market with the potential of destroying free competition, which allegations on their face state a cause of action cognizable under the Sherman Act. Because of the grant by Congress to federal courts of exclusive jurisdiction over the anti-trust laws of the United States, it was error for the District Court to dismiss the complaint.” Id. at 397.

The Miller decision is sound, is in accord with tying arrangements decisions under state and federal anti-trust law, and should be followed in Florida in interpreting our anti-trust act.

It is true that the state condominium act at Section 711.121, Florida Statutes (1975), authorizes condominium associations to enter into recreational leases. This statute, however, does not authorize such leases when made as an illegal tying arrangement prohibited by the state anti-trust act. Condominium recreational leases are in no sense exempt from anti-trust legislation.

It is also true that condominium recreational leases and management contracts comparable to the lease in this case have been upheld in the Florida courts. Point East Management Corp. v. Point East One Condominium Corp., 282 So.2d 628 (Fla. 1973); Fountainview Ass’n v. Bell, 203 So.2d 657 (Fla. 3d DCA 1967), aff’d, 214 So.2d 609 (Fla.1968), although recently they have come under stricter judicial scrutiny. Avila South Condominium Ass’n v. Kappa Corp., 347 So.2d 599 (Fla.) (Case No. 48,753, opinion filed March 31, 1977). None of these cases, however, dealt with the issue presented in this case: namely, whether such leases violate the state anti-trust act. Such decisions therefore do not control the instant case.

Finally, the state anti-trust act was in effect at the time this recreational lease was entered into. No claim has been made or could be made that Section 543,05, Florida Statutes (1975), is inapplicable to this lease.

I join in the court’s opinion in its disposition on counts I-IV on the plaintiffs’ complaint. I dissent as to the court’s affirmance of the dismissal on count V of the plaintiffs’ complaint. I would reverse the dismissal of that count and remand for further proceedings consistent with this opinion.

      . The appeal was filed in the Supreme Court of Florida as one “ . . . initially and directly passing on the validity of a state statute” and “ . . construing a provision of the state . . . constitution.” It was transferred to this court by the Supreme Court as being an appeal within our jurisdiction.

      . See the discussion of the applicability of actions for declaratory relief in Lambert v. Justus, 335 So.2d 818 (Fla.1976).

      . “Section 4. Homestead; exemptions—
      (a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family: (1) a homestead ...”

      . Chapter 542, Florida Statutes (1975) “Combinations Restricting Trade or Commerce,” provides in part:
      “542.05 Combinations prohibited; penalty
      (1) Any person who shall or may become engaged in any combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons or of either two or more of them, for either, any or all of the following purposes:
      (a) To create or carry out restrictions in trade or commerce or aids to commerce, or to create or carry out restrictions in the full and free pursuit of any business authorized or permitted by the laws of this state;

      (c) To prevent competition in the manufacture, making, transportation, sale, or purchase of merchandise, produce, commodities, or to prevent competition in aids to commerce; ...”
      “542.10 Contract in violation of chapter void Any contract or agreement in violation of the provisions of this chapter shall be void and not enforceable either in law or equity.”


author: ERVIN, Judge.

text:
    Silas R. STONE and Charles R. Krisher, Appellants, v. TOWN OF MEXICO BEACH, Florida, Appellee.
    Nos. EE-35, EE-124.
    District Court of Appeal of Florida, First District.
    June 29, 1977.
    Rehearing Denied Aug. 8, 1977.

      Cecil G. Costin, Jr., Port St. Joe, for appellants.
    Thomas B. Ingles, Panama City, for ap-pellee.
   ERVIN, Judge.

Appeals were taken in these consolidated cases from final judgments sustaining the validity of certain sections of two ordinances adopted by the Town of Mexico Beach pertaining to the assessment of charges for garbage collection, the imposition of liens upon the appellants’ real property for non-payment of the charges and attorneys’ fees for enforcement of the liens. Both cases were brought by the town on complaints to enforce liens filed upon appellants’ land for their failure to pay a fee for garbage service as required by Ordinance number 35 and Ordinance number 50. Answers were filed by appellants alleging, inter alia, that the town was without authority to collect the charges and to impose liens for failure to pay such charges.

On June 19, 1973, Mexico Beach adopted Ordinance number 35 establishing a garbage service and provided that the fee for garbage collection would be set by resolution. By resolution passed simultaneously, the residential rate for owners under the age of 65 years was set at $3.50 per month. Section 15 of the ordinance provided that all owners of businesses or residences would be liable for a garbage collection fee whether or not such owner uses the service. Section 13(d) of Ordinance 35 sets forth the penalty for late payment, including a provision for assessment of a lien on the owner’s property.

Subsequent to the adoption of the ordinance and the resolution, Mexico Beach began collecting garbage and billed property owners for the town’s charges. Appellant Stone, who owned a summer cottage in Mexico Beach, occupied his cottage only during the summer months of 1974. His premises were not occupied during any other time of the year. Upon vacating the cottage at the end of the summer, Stone tendered an amount to the town clerk sufficient to pay for four months garbage service which he considered due as a result of his summer occupancy. Tender of payment was refused by the town clerk.

Appellant Krisher, a year-round resident of Mexico Beach, testified that he never had any trash or garbage for the town to collect; therefore he had never used the service which he refused to pay. On August 8,1974, the town filed its claims of lien against both appellants’ property. Finally on January 28, 1975, Ordinance number 50 was adopted, amending Section 13(d) of Ordinance number 35 to include the assessment of costs and attorney’s fees incurred in the enforcement of liens impressed upon the owner’s property for non-payment of the fees.

Subsequently the Town of Mexico Beach filed its complaint in the Circuit Court of Bay County, Florida, to foreclose the liens on the real property owned by both appellants for their failure to pay for garbage collection services allegedly rendered by the town between July 1,1973 and July 1,1974, pursuant to the ordinances of the town. The court upheld the validity of the pertinent sections of the ordinances, found there was due from Krisher the sum of $46.20 for garbage collection charges, and attorney’s fee in the amount of $525.00, plus costs. The court also held that the sum of $34.65 for garbage collection charges was due from appellant Stone, and awarded the town’s attorney a fee of $525.00, and costs. The court additionally imposed a lien upon the real property of both appellants for the amounts involved and ordered their properties to be sold in order to satisfy the liens.

Appellants attack the validity of the ordinances, arguing first that the ordinances do not distinguish between occupied and unoccupied premises, but charge a flat rate regardless of occupation and proof of any production of garbage. Hence they argue the ordinances are unreasonable in their application and contrary to constitutional standards. We find this argument to be without merit. The lower court properly analogized the imposition of fees for garbage collection with those of sewage disposal. In State v. City of Miami Springs, 245 So.2d 80 (Fla.1971), the city passed a sewer ordinance which charged a flat rate, unrelated to use, to single family residences and a variable rate based on actual use to all other users. Our Supreme Court held that such classifications were not unreasonable, arbitrary or in conflict with the state or federal constitutions or laws. Thus if the City of Miami Springs may impose a charge of $7.00 per month for sewage disposal upon single family residences unrelated to use, we see here no constitutional infirmity in Mexico Beach imposing a flat rate, regardless of use, to fees charged for the collection and disposal of garbage.

Next appellants argue the Town of Mexico Beach does not have the legal authority to impose a lien on the property owned by appellants for nonpayment of garbage collection charges. This argument too is without merit. The exact point has previously been decided contrary to appellants’ objections. Stein v. City of Miami Beach, 250 So.2d 289 (Fla. 3rd DCA 1971) upheld an ordinance of the City of Miami Beach which provided for the imposition of special assessment liens upon real property following nonpayment by the owners of such property for garbage fees.

Appellants’ third point complains that the titles to ordinances 35 and 50 of the Town of Mexico Beach were not legally sufficient under Section 166.041(2), Florida Statutes (1975), added by Ch. 73-129, § 1, effective October 1, 1973, to authorize the imposition of a lien by the town on the real property of appellants as well as attorney’s fees for the enforcement of such lien. The title to ordinance number 35, adopted on June 19,1973, provides:

“AN ORDINANCE ESTABLISHING A GARBAGE UTILITY IN THE TOWN OF MEXICO BEACH PROVIDING DEFINITIONS OF CERTAIN TERMS RELATING TO SAID GARBAGE UTILITY; PROHIBITING PRIVATE COLLECTION AND TRANSPORTATION OF GARBAGE; PROVIDING COLLECTION PRACTICES FOR SAID GARBAGE UTILITY; PROHIBITING CERTAIN ACTS WITH REGARD TO THE COLLECTION AND DISPOSAL OF GARBAGE; REQUIRING GARBAGE CANS TO BE EASILY ACCESSIBLE; PROHIBITING THE DEPOSITING OF GARBAGE OR TRASH UPON UNOCCUPIED PREMISES; PROHIBITING THE BURNING OF GARBAGE OR TRASH WITHOUT A PERMIT; PROVIDING FOR THE DISPOSAL OF BUILDING AND REMODELING REFUSE AND SPENT OILS OR GREASES; LIMITING THE ACCUMULATION OF GARBAGE OR TRASH; PROVIDING SERVICE CHARGES; PROVIDING PENALTIES FOR THE FAILURE TO PAY SERVICE CHARGES.”

The title to ordinance number 50, adopted June 28, 1975, merely added the words, “AN ORDINANCE AMENDING ORDINANCE 35”, and then repeated in toto the words from the title to Ordinance number 35. While there is nothing in the title to either ordinance which specifically refers to the imposition of a lien upon an owner’s real property following the refusal of the owner to pay service charges, still we believe the title sufficiently apprises the public of the subject involved. Florida decisions have repeatedly stated that statutes will be upheld against constitutional attacks alleging title defects unless there are plain and substantial violations of organic constitutional requirements. E. g., King Kole Inc. v. Bryant, 178 So.2d 2 (Fla.1965); Farabee v. Board of Trustees, Lee County Law Lib., 254 So.2d 1 (Fla.1971); City of Naples v. Moon, 269 So.2d 355 (Fla.1972). As stated in the Bryant decision, “The title is sufficient if it fairly gives such notice as will reasonably lead to inquiry into the body thereof.” (178 So.2d at 4) Here the title of the ordinances referred to service charges and provided for penalties upon the failure to pay such charges. We believe that a protesting property holder was sufficiently placed on notice by the use of such words to read further, and if he failed to do so, he acted at his own peril upon his refusal to pay the charges.

We agree, however, that the court erred in sustaining the assessment of attorney’s fees in favor of the town. It was only after the liens had been filed that the town amended Ordinance 35 to include the requirement that the owner be responsible for the payment of attorney’s fees incurred in any action brought by the town to foreclose such liens. True, a retrospective statute pertaining to civil matters is not per se unconstitutional. Charlotte H. & N. R. Co. v. Welles, 78 Fla. 227, 82 So. 770 (1919); Board of Com’rs. v. Forbes Pioneer Boat Line, 80 Fla. 252, 86 So. 199 (1920). Such a statute may be held invalid if it impairs the obligation of contracts or vested rights. State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739 (1924); Summer v. Mitchell, 29 Fla. 179, 10 So. 562 (1892). Retrospective legislation may also be invalidated when a new obligation or duty is imposed or an additional disability is established in connection with previous transactions. McCord v. Smith, 43 So.2d 704 (Fla.1949).

We do not find it necessary to pass upon the constitutionality of Ordinance 50, which provided the “amendment shall apply to all lien foreclosure or lien enforcement proceedings filed after the effective date of this ordinance.” While the town did not file suits to foreclose the liens until after Ordinance 35 had been amended, there was nothing in the ordinance clearly expressing the town’s intention to impose its attorney’s fees upon property holders in actions to enforce liens which had been previously filed but not yet sought to be foreclosed.

It is a long standing rule of statutory construction that a statute operates prospectively unless the intent that it operate retrospectively is clearly expressed. State ex rel Riverside Bank v. Green, 101 So.2d 805 (Fla.1958); Springer v. Colburn, 162 So.2d 513 (Fla.1964).

It appears from the amended ordinance itself that there was no clear and unambiguous intention expressed by the town that attorney’s fees be applied retroactively to liens previously filed since the amendment provides that if a lien is filed against the property of one refusing to pay a fee, . . the owner shall be responsible for all attorney’s fees. . . (Emphasis supplied.) Such language, consistent with appropriate rules of construction, can only be given prospective effect.

Moreover, an award of attorney’s fees “is in derogation of common law and . acts for that purpose should be construed strictly.” Great American Indemnity Company v. Williams, 85 So.2d 619, 623 (Fla.1956). Compare Oakdale Park, Ltd. v. Byrd and Harrell, 346 So.2d 648 (Fla. 1st DCA 1977), where we held that before a party may recover costs and attorney's fees in an action to foreclose a mechanic’s lien, the parties to a contract must strictly follow the terms of the contract calling first for arbitration.

Accordingly those portions of the final judgments assessing attorney’s fees in favor of the town are reversed. In all other respects the judgments are affirmed.

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


author: RAWLS, Judge.

text:
    HUDSON PULP & PAPER CORP., a Florida Corporation, Appellant, v. COUNTY OF VOLUSIA, a political subdivision of the State of Florida, and Department of Revenue, State of Florida, Appellees.
    Nos. EE-411, EE-468.
    District Court of Appeal of Florida, First District.
    June 29, 1977.
    Rehearing Denied Aug. 8, 1977.
    Franklin Reinstine of Reinstine, Rein-stine, Panken & Oberdorfer, Jacksonville, for appellant.
    William K. Howell, Jr., John R. Godbee, Jr., and Warren 0. Tiller, DeLand, Robert L. Shevin, Atty. Gen., Harold F. X. Purnell and Larry Levy, Asst. Attys. Gen., for ap-pellees.
   RAWLS, Judge.

By its amended complaint seeking injunc-tive relief, Hudson Pulp & Paper Corp. (Hudson) challenged the constitutionality of Volusia County (county) Ordinance 73-21 which established a Municipal Service District composed of the unincorporated area of Volusia County and provided for the levy of ad valorem taxes of not more than ten mills. The trial court dismissed Hudson’s complaint upon the ground that it failed to state a cause of action.

Hudson’s primary challenge to the subject ordinance’s constitutionality is founded upon the theory that its property (23,000 acres) is of rural character, used for forestry purposes, and is so situated that it cannot receive the benefits of municipal services. Hudson then reasons that the ordinance is invalid and void in that it violates Article I, Sections 2 and 9, and Article VII, Section 9(b), of the Florida Constitution, and the Fifth and Fourteenth Amendments of the Federal Constitution.

The basic charter of this state adopted in 1968 drastically altered the structure of our local governments. As stated in State ex rel. Volusia County v. Dickinson, 269 So.2d 9 (Fla.1972):

“When Section 1(g), Article VIII and Section 9(a), Article VII are read together, it will be noted that charter counties and municipalities are placed in the same category for all practical purposes. That upon a county becoming a charter county it automatically becomes a metropolitan entity for self-government purposes. This is so because Section 1(g) of Article VIII provides a charter county ‘shall have all powers of local self-government not inconsistent with general law. . The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law.’ This all inclusive language unquestionably vests in a charter county the authority to levy any tax not inconsistent with general or special law as is permitted municipalities.”

Volusia County is a charter county with all necessary powers to accomplish municipal services within special districts. The challenged ordinance was enacted by the county’s governing body. Services being provided in the special district created (garbage collection, water supply and distribution, fire protection, etc.) are those which a “metropolitan entity” has traditionally required.

We hold that Volusia County, by the authority of the applicable provisions of the 1968 Florida Constitution and its charter authority adopted pursuant thereto, validly enacted the challenged ordinance; thus, the trial court was correct in dismissing the amended complaint.

AFFIRMED.

BOYER, C. J., and McCORD, J., concur.

      . Section III of Ordinance 73-21 entitled “TYPES OF SERVICES” provides:
      “The types of municipal services to which this ordinance shall apply shall include, but not necessarily be limited to, the following:

        1. Maintenance, re-surfacing and construction of non-arterial roads in unincorporated areas.
      2. Municipal-type police patrol and service.
      3. Water supply and distribution.
      4. Sewerage collection and treatment.
      5. Solid waste collection.
      6. Fire protection.
      7. Recreation programs and facilities.
      8. Non-arterial street lighting.
      9. Local storm drainage.
      10. Such other services as are ordinarily considered to be municipal services.”

      . Chapter 70-966, Laws of Florida.


author: PER CURIAM.

text:
    SOUTHEAST ZAYRE, INC., James Moso, and Victor Thomas Hindery, Appellants, v. Raymond CARSWELL, Appellee.
    No. CC-315.
    District Court of Appeal of Florida, First District.
    June 30, 1977.

      Craig Cameron and Ray Haas, Gosney, Cameron & Parsons, Daytona Beach, for appellants.
    Maurice Wagner, Richard D. Berton and Irwin A. Connelly, Wagner, Bertone & Con-nelly, Daytona Beach, for appellee.
   PER CURIAM.

A jury found in favor of appellee on his claim of assault and battery, malicious prosecution, slander, false imprisonment, and negligence, and the trial court entered a final judgment accordingly. The defendants at trial, appellants here, have raised several points on appeal, the most significant of which (and the only one which merits discussion) concerns the failure of the trial court to grant a mistrial on the basis of alleged improper and prejudicial conduct on the part of the appellee’s counsel during the course of the trial.

The factual circumstances surrounding the incident giving rise to this dispute were hotly contested by the parties at trial. According to appellee, he went to appellant Southeast Zayre, Inc.’s store in Daytona Beach on July 23, 1974, browsed for a few minutes, and proceeded to a nearby supermarket where he purchased a dozen eggs and some syrup. He then returned shortly thereafter to Zayre’s to purchase some candy for his son. As he was proceeding to the candy section of the store, he noticed a Zayre security guard, appellant James Moso, place a bag further down the aisle in which he was walking. Appellee considered picking up the bag and handing it to appellant Moso, but decided against it, when he noticed several other Zayre employees apparently surveilling the scene. According to appellee, he told Moso and the other employees, in effect, that if he was under investigation for shoplifting, he should not be, because he had not taken anything. Deciding not to purchase candy at the store after all, appellee proceeded toward the exit door. Before he could open the door, Moso grabbed him by the neck and pulled him back. A struggle ensued, during which another Zayre employee, appellant Thomas Hindery, retrieved a .357 pistol from Moso’s car and pointed it at appellee’s head. According to appellee, five Zayre employees at one time or another were pummelling him. He emptied the bag which he had brought in from the supermarket to show that it contained only eggs and syrup, but to no avail. He was finally taken back to the manager’s office and waited for the arrival of the police. He overheard Moso request the investigating officer to inform appellee that appellee would be faced with six criminal charges unless he signed a release. After the investigating officer indicated that he would make no such statement to appel-lee and that he would make no arrest, ap-pellee was permitted to leave.

Appellants’ version of the incident differed drastically from that of appellee. Appellant Moso stated that on appellee’s initial visit to the Zayre store, appellee placed some store property within the bag that he was carrying. After appellee left the store and then returned in a few minutes, Moso placed the shopping bag on or next to the counter near the snack bar. According to Moso, when appellee noticed the Zayre employees watching him as he was about to pick up the bag, he came over to the employees and began cursing them, informing that he was “wise” to them. Moso told appellee to leave the store which he proceeded to do, but not before passing a counter on which packages of underwear were located. Moso testified that appellee took one of the packages and placed it inside the supermarket bag that he had with him. At that point, Moso claims that he merely attempted to look inside the shopping bag. Before he could so so, appellee began cursing him and eventually initiated a fight. According to Moso, he and the other Zayre employees did not strike appellee, but merely attempted to restrain him. A gun was brought into the store, which was never pointed at appellee but only at the ceiling. Moso claimed that appellee voluntarily went to the manager’s office with him. As was the case with appellee, appellants called additional witnesses to support their version of the incident.

Appellants argue that in the highly contested trial, their case was prejudiced by the conduct of one of appellee’s counsel, Maurice Wagner. Appellants’ argument rests on the manner in which Mr. Wagner examined and cross-examined witnesses. The trial court sustained objections made by appellants’ counsel on the grounds that the question asked was argumentative. At times, Mr. Wagner would, in the guise of asking a question, make personal comments on the witness’ testimony. Mr. Wagner also continued to ask questions to which the trial court has sustained an objection. Counsel for appellant moved for a mistrial which was denied, but Mr. Wagner’s argumentative style of questioning continued unabated. A request by appellant’s counsel for the trial court to at least lay down some guidelines was denied. On the third day of trial, counsel for appellants again moved for a mistrial, to which Mr. Wagner responded that “I have never intentionally asked a question that the court has sustained an objection to. . . .” However, the veracity of that assertion by Mr. Wagner was called into question when just a few minutes later, the following exchange occurred:

“MR. WAGNER:
A. And, if that were the case then he could not have seen Raymond Carswell pick up any merchandise, could he?
MR. CAMERON:
Objection, Your Honor, he is leading.
THE COURT:
Sustain the objection.
MR. WAGNER:
Q. If he were with you there was no way he could have seen Raymond Cars-well pick up merchandize?
MR. CAMERON:
Objection, Your Honor. The same question.
THE COURT:
Sustain the objection.”

Without reciting further examples of argumentative questions and improper comments to witnesses, we conclude that such conduct on the part of attorney Wagner was so grossly repetitive and prejudicial that a new trial is required. That appellants’ counsel at times asked leading questions to which objections were sustained is no excuse for Mr. Wagner's own conduct. Nor is it valid argument that the factual issues at trial were intensely disputed. An adversary in the furtherance of his client’s interest is entitled, and, indeed obligated to, to forcefully present his theories at trial and thoroughly examine his witnesses as well as vigorously cross-examine the opposing party’s witnesses. However, no counsel is permitted to repeatedly ask argumentative questions after objections to those questions have been sustained, nor is he allowed to comment upon the unfavorable testimony of a witness in the presence of a jury. See Tyus v. Apalachicola Northern Railway Company, 130 So.2d 580 (Fla.1961). Accordingly, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

BOYER, C. J., MILLS, J., and JOPLING, WALLACE, Associate Judge, concur.

      . Although a second counsel for appellee, Irwin Connelly, actively participated in the trial of the cause, appellants focus solely on the actions of Mr. Wagner. We consequently limit our consideration to the actions taken by Wagner at trial.

      . For example, after appellant Moso answered a question, Wagner observed, “It strikes me that your recollection is rather accurate about matters that are beneficial to you but you can’t remember anything — anything at all that puts you in a bad light or position.”

      . Mr. Wagner’s ignoring of the sustaining of an objection to a question is exemplified by the following which occurred during his examination of appellant Moso:
      “MR WAGNER:
      Q. Incidentally, are you still employed as a security guard in the stores of Volusia County?
      A. Yes sir, I am.
      Q. Still carrying on the same kind of activity that you were carrying on before?
      MR. CAMERON:
      Objection. Your Honor that is argumentative and highly irregular.
      THE COURT:
      Sustain the objection.
      MR. WAGNER:
      Q. Have you changed your modis operandi?
      MR. CAMERON:
      Objection, Your Honor.
      MR. WAGNER:
      Q. Your methods and procedures now?
      MR. CAMERON:
      Objection.
      THE COURT:
      Sustain the objection.
      MR. WAGNER:
      Q. Are you still following the same—
      MR. CAMERON:
      Objection Your Honor, Do we still have to keep going on and on and on.
      THE COURT:
      Sustain the objection to that line of questioning. What he does now is immaterial.”


text:
    Thomas G. HIGGINS, Appellant, v. Anne Elizabeth HIGGINS, Appellee.
    No. EE-49.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    James W. Grimsley, Smith, Grimsley, Barron & Remington, Fort Walton Beach, for appellant.
    David H. Levin, Levin, Warfield, Middle-brooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   PER CURIAM.

Although appellant challenges several aspects of the final judgment of dissolution of marriage the only provision requiring discussion is the requirement that appellant maintain a $75,000 life insurance policy in addition to a $15,000 government life insurance policy. In the case of Riley v. Riley, 131 So.2d 491 (Fla. 1st DCA 1961), we held that a trial court may require a divorced father to maintain insurance on his life as security for the payments of maintenance and support, but may not order him to establish an insurance estate for the child. Sub judice, appellant was required to pay by the terms of the final judgment $250 a month for the parties’ remaining minor child. At the end of four years, when the child reaches the age of 18, appellant will have been obligated to pay a total of $12,-000, which is more than adequately secured by the $15,000 government insurance policy. Thus, the trial court erred in ordering appellant to maintain the $75,000 Prudential life insurance policy. In all other respects, the final judgment is affirmed.

Appellee has moved for attorney’s fees for services rendered by her attorney on appeal, but that motion is denied.

AFFIRMED IN PART; REVERSED IN PART.

BOYER, Chief Judge, McCORD, J., and DREW, E. HARRIS (Ret.), Associate Judge, concur.


author: BOYER, Chief Judge.

text:
    METROPOLITAN DADE COUNTY, etc., et al., Appellants, v. Amelia KELLY et al., Appellees.
    No. FF-352.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Rehearing Denied Aug. 8, 1977.
    John E. Finney, Miami, for appellants.
    J. Richard Moore, Corrigan, Werber & Moore, Charles Cook Howell, III, Howell, Howell, Liles & Braddock, Jacksonville, for appellees.
   BOYER, Chief Judge.

The trial court denied appellants’ motion to dismiss, and appellants filed a timely notice of interlocutory appeal. Two issues are presented: Improper venue, raised by appellant Metropolitan Dade County, and whether the complaint fails to state a cause of action, raised by appellant Pena.

The accident giving rise to this appeal occurred on February 3, 1975, when appel-lee Amelia Kelly was injured while a passenger in an automobile being operated by appellee Robert Hulsey who had rented the vehicle from appellee Avis Rent-A-Car. The Hulsey-driven auto collided with a bus owned by appellant Dade County and operated by appellant Pena, a county employee. Mrs. Kelly and her husband sued Hulsey, Avis, and Hulsey’s insurance carrier, appel-lee American and Foreign Insurance Company. The original defendants filed a third party complaint against appellants for contribution.

The venue issue is atypical. Generally, the State of Florida as well as its agencies and subdivisions has a right to be sued in the county where its headquarters are located. Appellees acknowledge the general rule, but assert that different considerations are involved when the State or one of its subdivisions is not a party to the original action. Given the facts that venue in Duval County is proper as to the principal action and appellant Dade County is merely a third-party defendant in a proceeding ancillary to the principal action, appellees assert that the governmental venue privilege should not apply. The Federal authorities tend to support appellees' position. Wright on Federal Courts, § 76; 3 Moore, Federal Practice, § 14.28(2), Odette v. Shearson, Hammill and Co., 394 F.Supp. 946 (S.D.N.Y.1975); see also Dorr-Oliver, Inc. v. Linder Industrial Machinery Company, 263 So.2d 237 (Fla. 3d DCA 1972).

Notwithstanding the inherent force of appellees’ position, we feel compelled to reach a contrary result. In Amelia Island Mosquito Control District v. Tyson, 150 So.2d 246 (Fla. 1st DCA 1963), the original defendant in a negligence ease brought in the Control District as a cross-defendant. After recognizing the split of authority as to whether the District's general venue privilege applied to a proceeding ancillary to the original action, this Court held that the District could claim its venue privilege. Similarly, in City of Bradenton v. Finley, 208 So.2d 675 (Fla. 3d DCA 1968), the Court held that the City, a third party defendant, was entitled to invoke its common law right to be sued only in the county where it is located. Similarly, in the case sub judice, appellant Dade County’s motion to dismiss on the basis of improper venue should have been granted, or the case should have been transferred to the proper venue.

Appellant Pena, in arguing that the complaint failed to state a cause of action as to him, relies upon § 768.28(9), Florida Statutes (1975) which provides:

“No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort for any injury or damages suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer,' employee, or agent acted in bad faith with malicious purpose or in a manner exhibiting wanton and wilful disregard of human rights, safety or property.”

Since appellees do not claim that Pena acted in bad faith, Pena’s motion to dismiss should have been granted. Although the issue raised by Pena is not included in one of the enumerated categories of FIa.App. Rule 4.2, we find it proper to dispose of the issue in the interest of judicial economy and accordingly treat that part of the interlocutory appeal as a petition for common law certiorari.

REVERSED.

RAWLS and McCORD, JJ., concur.


text:
    Charlotte D. PHIPPEN, Appellant, v. STATE of Florida, Appellee.
    No. 76-516.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    Rehearing Denied Aug. 11, 1977.
    Richard E. Mandell of Michael Sigman, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review we find the evidence, as a matter of law, insufficient to convict the Appellant.

REVERSED with directions to discharge the Appellant.

CROSS, ALDERMAN and DAUKSCH, JJ., concur.


author: DAUKSCH, Judge.

text:
    Freddie Lee Clyde HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 76-681.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    Rehearings Denied Aug. 10, Sept. 21, 1977.
    Richard L. Jorandby, Public Defender, James K. Green, Legal Intern and Frank B. Kessler, Chief, App. Div., West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

AFFIRMED on authority of Dobbert v. State, 328 So.2d 433 (Fla.1976) and State v. Diggs, 336 So.2d 446 (Fla.4th DCA 1976). See also Garrison v. State, 340 So.2d 1171 (Fla.4th DCA 1976).

MAGER, C. J., and CROSS, J., concur.


text:
    Charles A. FINKEL, Appellant, v. SUN TATTLER COMPANY, INC., a Florida Corporation, et al., Appellees.
    No. 76-1409.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    Rehearing Denied Aug. 10, 1977.
    Quentin V. Long, Long & Finkel, P. A., Hallandale, for appellant.

      Harold B. Wahl, Wahl & Gabel, Jacksonville, and Hugh S. Glickstein, Glickstein, Rubin & Rubinchik, Hollywood, for appel-lees.
   PER CURIAM.

It is undisputed and well settled that the Supreme Court of the United States has established a dual standard in libel and slander cases — one standard applicable to public officials or public figures — another standard applicable to private individuals. (New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).

No useful judicial purpose would be served to embark upon a discourse regarding the relative merits of such duality or the privileges resulting therefrom. Suffice it to say, such a distinction exists and we apply the applicable law relating thereto.

Accordingly, based upon our understanding of New York Times v. Sullivan, supra, and its progeny, it appears that the appellant is a public official or public figure by virtue of his former status as city attorney and his current activities relating thereto or emanating therefrom. See also Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). Therefore the New York Times v. Sullivan “actual malice” standard is the applicable rule by which to measure accountability of appellee for any alleged libel.

Having so concluded, it does not necessarily follow that a summary judgment on this legal proposition is dispositive of the entire cause. In our opinion there exist genuine issues of material fact with respect to the presence or absence of malice on the part of the appellee which preclude the entry of summary judgment. See Firestone v. Time, 231 So.2d 862 (Fla. 4 DCA 1970) cert. den. 237 So.2d 754 (Fla.1970).

Under such circumstances, any litigant, whether public official or private individual, is entitled to a trial on the merits of his or her claim. Our traditional sense of justice and fair play demands no less, particularly where one’s reputation or good name is alleged to have been impugned. The free speech protections of the First Amendment and the right of access to our courts under the Florida and United States Constitutions can be properly recognized, balanced and preserved in the sunshine of a trial on the merits.

Affirmed, in part; reversed, in part, and remanded.

MAGER, C. J., and DAUKSCH, J., and KANEY, FRANK N., Associate Judge, concur.


text:
    Timothy WITKO, a minor by and through his guardian and next friend, Charladean E. Witko, and Charladean E. Witko, Individually, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellees.
    No. 76-1551.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    Rehearing Denied Aug. 10, 1977.

      Gary A. Esler, Esler & Kirsehbaum, Fort Lauderdale, for appellants.
    William D. Ricker, Jr., and Ronald A. Fitzgerald, Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   PER CURIAM.

The question presented in this appeal is whether a minor plaintiff, who does not own a motor vehicle, may recover personal injury protection benefits under the Florida Automobile Reparations Act from the insurer of a motor vehicle which struck and injured him while he was a pedestrian, when such plaintiff was a resident of the household of his mother who owned a motor vehicle for which security was required, but which motor vehicle was uninsured. Based upon the reasons and rationale expressed by our sister districts in Commercial Union Insurance Co. v. Williams, 309 So.2d 617 (Fla.lst DCA 1975); Farley v. Gateway Ins. Co., 302 So.2d 177 (Fla.2d DCA 1974); and Gateway Insurance Co. v. Butler, 293 So.2d 738 (Fla.3d DCA 1974), the question posed is answered in the affirmative and the summary final judgment entered in favor of the defendant-appellee is reversed and the cause remanded to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

MAGER, C. J., and DAUKSCH, J., and KANEY, FRANK N., Associate Judge, concur.


text:
    DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. Victor R. BEAUCHAMP, Appellee.
    No. 75-1467.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Rehearing Denied Aug. 3, 1977.

      Stuart L. Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellant.
    Welbaum, Zook, Jones & Williams and Peter C. Jones, Miami, for appellee.
    Snyder, Young, Stern, Barrett & Tan-nenbaum and Barry Scott Richard and William L. Rogers, North Miami Beach, as ami-cus curiae.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Dade County appeals an order holding that the zoning classification of RU-4L (23 units per acre) is too restrictive as applied to Victor Beauchamp’s property and directing that the County rezone Beauchamp’s property to a classification not less restrictive than 33 units per acre. Beauchamp cross-appeals on the ground that the 33 units per acre zoning classification is too restrictive.

On September 14,1973 the County adopted a comprehensive ordinance which rezoned Beauchamp’s 6.07 acres of land located on the corner of Crandon Boulevard and Ocean Lane Drive, Key Biscayne, from RU-4A (50 units per acre) to RU-4L (23 units per acre with a height limitation of four stories). Beauchamp thereupon filed a petition for writ of certiorari praying that the ordinance be declared unconstitutional and void as to his property. The record in this cause is voluminous and the learned trial judge, after reviewing testimony and numerous exhibits and hearing oral argument, found, in part, as follows:

******
“Petitioner, VICTOR R. BEAU-CHAMP, is the owner of 6.07 acres on Key Biscayne which said property is described on Exhibits ‘A’, ‘B’ and ‘C’ attached to the Petition for Writ of Certio-rari. The property is located on the corner of Crandon Boulevard and Ocean Lane Drive and extends to the east approximately 600 feet where it is adjacent to the high rise Commodore Club Apartments. To the east and southeast of the property are four (4) high rise apartment buildings built to a height to 12 and 13 stories in a zone permitting 50 units to the acre. Also, in a southeasterly direction is a nine (9) story high rise at 50 units to the acre. To the south is a six (6) story high rise built at a density of 36 units per acre and an eleven (11) story building built under a zoning classification which permitted 87 units per acre. Between these two (2) buildings are two (2) ‘models’.
“On the west is Crandon Boulevard and across Crandon Boulevard is a shopping area with many shops, including restaurants, bars and gas stations. In addition, to the northwest and directly adjacent to Petitioner’s property is a gas station. The property is bounded on the north by Crandon Park.
******
“. . . practically surrounded on three sides by seven (7) high rise apartment buildings and extensive commercial development. In addition, the Commission allowed the owners of 90 per cent of the undeveloped land in the area to be rezóned to build to a density of 33 units per acre and height as allowed under PUD (Planned Unit Development) development.
“These facts show that the roll back to RU-4L (23 units) in effect would make the subject property out of character with the existing structures. Furthermore, there are numerous high rise structures on Crandon Boulevard between the Beauchamp property and the State Park on the south end of the Island.”
******

Thereupon, the trial judge held that the ordinance was too restrictive and arbitrary as applied to Beauchamp’s property and ordered the County to rezone the property to a classification not less restrictive than 33 units per acre.

The burden of a party seeking relief from a zoning resolution is an extraordinary one which places upon the petitioner the duty of showing from the record before the trial court that the zoning ordinance challenged is no longer fairly debatable. See Marca, S. A. v. Dade County, 332 So.2d 142 (Fla.3d DCA 1976) and cases cited therein. In attempting to determine what constitutes fairly debatable, our Supreme Court has indicated that the debate must be upon grounds that “make sense”. City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953); See also City of Miami v. Schutte, 262 So.2d 14, 16 (Fla.3d DCA 1972).

It cannot be said to “make sense” for the County to permit on one hand a density of only 23 units per acre and on the other hand to have permitted 50 and 87 units per acre on surrounding development land, as well as allowing 33 units per acre on the remaining vacant land in the area. The property is surrounded by seven high rise apartment buildings and commercial development and, thus, the RU-4L classification makes it out of character with the existing structures. There are numerous high rise structures on Crandon Boulevard and the effect of the roll back to 23 units per acre is spot zoning in reverse. See Kugei v. City of Miami Beach, 206 So.2d 282 (Fla.3d DCA 1968); Manilow v. City of Miami Beach, 213 So.2d 589 (Fla.3d DCA 1968); City of Miami v. Schutte, supra. The trial court’s finding that the zoning ordinance as applied to Beauchamp’s property is arbitrary, unreasonable and void is amply supported by the record and we will not disturb this finding on appeal. See Town of Surfside v. Andrews, 193 So.2d 207 (Fla.3d DCA 1966); City of South Miami v. Hillbauer, 312 So.2d 241 (Fla.3d DCA 1975).

On cross-appeal Beauchamp contends that the trial judge should have ordered the County to rezone his property to a classification not less restrictive than 50 units per acre. We disagree.

The owners of the undeveloped land in the area obtained a zoning density of 33 units per acre pursuant to the planned unit development concept and, therefore, the trial judge ordered the County to rezone Beauchamp’s property to permit no less than the same density. We note, however, that there is no specific County zoning classification designating 33 units per acre. If Beauchamp’s property does not qualify under Section 33-284.11, Code of Metropolitan Dade County, for a planned unit development which would permit 33 units per acre, then, in that event, the County shall be required to rezone the subject property to a classification not less than 35.9 units per acre.

It is so ordered.


text:
    Henry Lee THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2133.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Henry Lee Thomas, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Turner v. State, 272 So.2d 129 (Fla. 1973); Compare, Rubiera v. Dade County, 305 So.2d 161 (Fla.1974). Whereupon, the public defender’s said motion to withdraw is granted and the order or judgment appealed is hereby affirmed.


text:
    Robert T. STRONG and Julie Y. Strong, Appellants, v. Hortensio DELGADO and Nellie Geraldine Delgado, his wife, Appellees.
    No. 75-1219.
    District Court of Appeal of Florida, Fourth District.
    July 8, 1977.
    Rehearing Denied Aug. 10, 1977.
    James W. Knight, Jr., of Huebner, Shaw & Bunnell, Fort Lauderdale, for appellants.
    Kenneth G. Stevens, Fort Lauderdale, for appellees.
   PER CURIAM.

Upon consideration of the record and briefs of the respective parties, we determine the trial court erred in entering final judgment of foreclosure of a mortgage on a harmless technical breach of the mortgage agreement for it would be inequitable and unjust. Accordingly, the final judgment of foreclosure is reversed and the cause remanded to the trial court for further proceedings consistent with the views herein expressed.

Reversed and remanded, with directions.

MAGER, C. J., and CROSS and ALDERMAN, JJ., concur.


text:
    Jerry A. MARGOLIN, M.D., Appellant, v. MORTON F. PLANT HOSPITAL ASSOCIATION, INC., et al., Appellees.
    No. 77-457.
    District Court of Appeal of Florida, Second District.
    July 8, 1977.
    Rehearing Denied Aug. 11, 1977.
    F. Wallace Pope, Jr., of Johnson, Blakely, Pope & Bokor, Clearwater, for appellant.
    James A. Martin, Jr., and Emil C. Mar-quardt, Jr., of McMullen, Everett, Logan, Marquardt & Cline, Clearwater, for appel-lees.
   PER CURIAM.

This is an interlocutory appeal from an order granting a motion to dismiss with prejudice Count IV of the amended complaint. The trial court found that this count did not state a cause of action.

In Count IV the appellant/doctor asserts that he was denied fundamental due process rights by appellee/Morton Plant Hospital Association, Inc. in removing him from the hospital staff. Even though the hospital in question is a private hospital this count states a cause of action for injunctive relief because it includes allegations that in the course of revoking the appellant’s staff privileges the hospital substantially departed from the provisions of its own bylaws. McElhinney v. William Booth Memorial Hospital, 544 S.W.2d 216 (Ky.1977); Berberian v. Lancaster Osteopathic Hospital Asso., 395 Pa. 257, 149 A.2d 456 (1959); Joseph v. Passaic Hospital Asso., 26 N.J. 557, 141 A.2d 18 (1958).

REVERSED and REMANDED for proceedings consistent with this opinion.

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

      . West Coast Hospital Association v. Hoare, 64 So.2d 293 (Fla.1953); Moles v. White, 336 So.2d 427 (Fla.2d DCA 1976).


text:
    Louis SHANNON, Appellant, v. STATE of Florida, Appellee.
    No. DD-95.
    District Court of Appeal of Florida, First District.
    July 11, 1977.

      Curtis A. Golden, Barry W. Beroset, of Murphy & Beroset, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant was charged by amended information with robbery “in violation of Section 812.13(b) (sic), Florida Statutes.” That statute, properly cited as Section 812.-13(2)(b), relates to the crime of robbery where the offender carries a weapon and classifies the crime as a first degree felony. According to the minute book record, the jury found defendant “guilty of robbery”, with no reference - to a weapon. Further, according to the transcript of the sentencing hearing, the trial court merely adjudicated appellant guilty of robbery (again, no reference to a weapon) and sentenced him to 10 years imprisonment. However, the minute book entry reflects that the trial court, prior to imposing the 10 year sentence, adjudicated appellant guilty of robbery as charged in the amended information, which, as above recited, charged robbery with a weapon. Robbery where the offender carries a weapon, being a first degree felony, is punishable up to 30 years or when specifically provided by statute up to life imprisonment, while “simple” robbery without a weapon is a felony of the second degree punishable by a term of imprisonment not exceeding 15 years. The difference is important, notwithstanding that the sentence imposed was for 10 years, because if appellant was sentenced for robbery with a firearm as a weapon then by virtue of Section 775.087(2) he will be ineligible for parole for a minimum of three years. Further, our review of the record reveals no evidence of use of a firearm nor any other weapon.

We have considered the remaining points raised by appellant and have found them to be without merit. Accordingly, while there was sufficient evidence in the record to sustain appellant’s conviction, we reverse the sentence and remand for re-sentencing for the crime of robbery, but without a weapon, and for clarification of the record.

REVERSED AND REMANDED.

McCORD, C. J., and BOYER and RAWLS, JJ., concur.