text:
    STATE of Florida, Appellant, v. Ben THOMAS, Appellee.
    No. 53723.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, and Janet Reno, State’s Atty. and Dennis L. Curran, Asst. State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender, Miami, for appellee.
   PER CURIAM.

The order of the trial court, granting the motion to dismiss on the ground that Section 812.014, Florida Statutes (1977), is unconstitutional, is reversed. See State v. Allen, 362 So.2d 10 (Fla.1978). This case is remanded to the trial court for proceedings consistent with that decision.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Thomas BAILEY, Appellee.
    No. 53746.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Ira N. Loewy, Asst. Attys. Gen., Miami, and Janet Reno, State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender, Miami, for appellee.
   PER CURIAM.

The order of the trial court, granting the motion to dismiss on the ground that Section 812.014, Florida Statutes (1977), is unconstitutional, is reversed. See State v. Allen, 362 So.2d 10 (Fla.1978). This case is remanded to the trial court for proceedings consistent with that decision.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Samuel MILLER, Appellee.
    No. 53788.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox., Ira N. Loewy, Asst. Attys. Gen., Miami, and Janet Reno, State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender, Miami, for appellee.
   PER CURIAM.

The order of the trial court, granting the motion to dismiss on the ground that Section 812.014, Florida Statutes (1977), is unconstitutional, is reversed. See State v. Allen, 362 So.2d 10 (Fla.1978). This case is remanded to the trial court for proceedings consistent with that decision.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Shannon OBRIEN and Patrick Lawson, Appellees.
    No. 53789.
    Supreme Court of Florida.
    Sept. 28, 1978.

      Robert L. Shevin, Atty. Gen., and Calvin L. Fox, Ira N. Loewy, Asst. Attys. Gen., Miami, and Janet Reno, State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender, Miami, for appellee.
   PER CURIAM.

The order of the trial court, granting the motion to dismiss on the ground that Section 812.014, Florida Statutes (1977), is unconstitutional, is reversed. See State v. Allen, 362 So.2d 10 (Fla.1978). This case is remanded to the trial court for proceedings consistent with that decision.

It is so ordered.

ENGLAND, C. J„ and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Tyrone MADISON, Appellee.
    No. 53812.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Ira N. Loewy, Asst. Attys. Gen., Miami, and Janet Reno, State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender, Miami, for appellee.
   PER CURIAM.

The order of the trial court, granting the motion to dismiss on the ground that Section 812.014, Florida Statutes (1977), is unconstitutional, is reversed. See State v. Allen, 362 So.2d 10 (Fla.1978). This case is remanded to the trial court for proceedings consistent with that decision.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Robert JOHNS and Henry Baker, Appellees.
    No. 53813.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Ira N. Loewy, Asst. Attys. Gen., Miami, and Janet Reno, State’s Atty., Miami, for appellant.
    ■ Bennett H. Brummer, Public Defender, Miami, for appellees.
   PER CURIAM.

The order of the trial court, granting the motion to dismiss on the ground that Section 812.014, Florida Statutes (1977), is unconstitutional, is reversed. See State v. Allen, 362 So.2d 10 (Fla.1978). This case is remanded to the trial court for proceedings consistent with that decision.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Alease MILTON, Appellee.
    No. 53814.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Ira N. Loewy, Asst. Attys. Gen., Miami, and Janet Reno, State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender, Miami, for appellee.
   PER CURIAM.

The order of the trial court, granting the motion to dismiss on the ground that Section 812.014, Florida Statutes (1977), is unconstitutional, is reversed. See State v. Allen, 362 So.2d 10 (Fla.1978). This case is remanded to the trial court for proceedings consistent with that decision.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Rafael Alfredo BOCANEGRA and Carlos Deschampa, Appellees.
    No. 53815.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Ira N. Loewy, Asst. Attys. Gen., Miami, and Janet Reno, State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender, Miami, for appellees.
   PER CURIAM.

The order of the trial court, granting the motion to dismiss on the ground that Section 812.014, Florida Statutes (1977), is unconstitutional, is reversed. See State v. Allen, 362 So.2d 10 (Fla.1978). This case is remanded to the trial court for proceedings consistent with that decision.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Oscar FELTON, Appellee.
    No. 53840.
    Supreme Court of Florida.
    Sept. 28, 1978.
    Robert L. Shevin, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, and Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., Miami, for appellant.
    Bennett H. Brummer, Public Defender, Miami, for appellee.
   PER CURIAM.

The order of the trial court, granting the motion to dismiss on the ground that Section 812.014, Florida Statutes (1977), is unconstitutional, is reversed. See State v. Allen, 362 So.2d 10 (Fla.1978). This case is remanded to the trial court for proceedings consistent with that decision.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: ENGLAND, Chief Justice.

text:
    FLORIDA BRIDGE COMPANY, Petitioner, v. William H. BEVIS, Paula F. Hawkins, and William T. Mayo, as and constituting the Florida Public Service Commission, Respondents.
    No. 52341.
    Supreme Court of Florida.
    Oct. 5, 1978.

      Peter J. Winders and James W. Ault of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for petitioner.
    Prentice P. Pruitt, Legal Director, and Norman H. Horton, Jr., Staff Counsel, Tallahassee, for Florida Public Service Commission, respondents.
   ENGLAND, Chief Justice.

Section 347.08, Florida Statutes (1975), authorizes the Public Service Commission to fix and regulate the tolls and charges of any toll bridge in the State of Florida. Florida Bridge owns the bridge and causeway in Charlotte County running between Placida and Gasparilla Island across Gas-parilla Sound. Following an investigation of the earnings, rates and charges of Florida Bridge, the Commission ordered a reduction in the rates which the company charges bridge users. The company has asked us to review the Commission’s order, alleging several defects.

1. President’s salary. Florida Bridge’s president is paid an annual salary of $25,000 and, in addition, receives a $7,000 expense account for time spent in the home office of the company in Venice, Florida. The Commission determined that the president was in his office only 142 days out of approximately 250 working days during the 1974 test year, and on that basis disallowed 108/25oths of the president’s combined compensation of $32,000. The Commission’s justification for reducing the salary allowance is the absence of evidence to establish that the president acted as chief officer of the company on a full-time basis during the days he was away from the home office.

The Commission’s action was arbitrary and constitutes a substantial departure from the essential requirements of law. The record reflects no evidence that the company president rendered services for any business other than Florida Bridge while not present in the company’s home office, nor is there evidence to suggest that the president’s duties were confined to those which he could perform while sitting at his desk in the home office. Indeed, the Commission has made no attempt to determine whether the president’s compensation is excessive in view of the services he provides. The arbitrary ratio by which the Commission reduced the salary and expense account — the ratio of days physically absent from the home office to the total number of workdays in the test year — has no support in logic, precedent, or policy. Metropolitan Dade County Water & Sewer Board v. Community Utilities Corp., 200 So.2d 831 (Fla. 3d DCA 1967). As to this expense item, the Commission’s order is reversed.

2. Non-recurring legal fees. The Commission identified a $5,014.93 legal expense paid in the test year for a challenge to the tax valuation of company property in Charlotte County, and it directed that the fee be spread over five years. By capitalizing and prorating the fee, only $1,002.93 was included as an expense in the test year.

We have held that the Commission has discretion in rate-making proceedings to remove from a test year computation items which are non-recurring in nature. Gulf Power Co. v. Bevis, 289 So.2d 401 (Fla.1974). Rather than entirely removing Florida Bridge’s tax litigation expense from the test year, the Commission, in effect, deleted from the test year those legal expenses which exceeded the average legal fees for a period of five years. Such' treatment of legal fees is clearly within the Commission’s authority. See Westwood Lake, Inc. v. Metropolitan Dade County Water & Sewer Board, 203 So.2d 363 (Fla. 3d DCA 1967).

3. Maintenance expense. The Commission found that maintenance expenses incurred during the 1974 test year were extraordinary and should be allocated over a five-year period rather than all to a single year. Florida Bridge complains that the Commission failed to consider supportive evidence, tendered after the hearing was over but before the Commission’s final decision, showing that the maintenance expenses were not extraordinary. We have previously held that the Commission has discretion to terminate its data-gathering function, and we find no abuse of that discretion here. The reports which Florida Bridge tendered to the Commission after the hearing were newly prepared and had not been subjected to examination by the Commission and its staff, cross-examination or other evidentiary evaluation.

Florida Bridge also contends that the Commission improperly determined that test-year maintenance expenses were extraordinarily high. On this point, there was conflicting evidence before the Commission. It is within the Commission’s authority to evaluate conflicting testimony and accord to each opinion whatever weight it deems appropriate. United Telephone Co. v. Mayo, 345 So.2d 648, 654 (Fla.1977). Consequently, the Commission did not depart from the essential requirements of law in spreading extraordinary maintenance expenses over more than one year for rate-making purposes.

4. Capitalized franchise valuation. In 1968 petitioner recorded on its books an intangible asset entitled “unpaid franchise valuation” in the amount of $657,700. This amount represents losses sustained by the predecessor of Florida Bridge. A witness for Florida Bridge testified that $657,700 was the actual cost of securing the bridge franchise under accepted accounting practices. The Commission found, however, that the franchise entry violated generally accepted accounting principles, and it refused to consider the franchise value in its determination of the company’s rate base. The Commission also maintains that Florida Bridge failed to provide documentary evidence that losses of its predecessor actually correlate to the amount expended for the predecessor’s franchise.

The evidence of record indicates that the original records which established the predecessor company’s losses were destroyed in the ordinary course of business in 1970. Florida Bridge points to other evidence, however, which correlates the amount of loss with capitalized franchise value. Both the Internal Revenue Service and the Commission audited the company prior to 1970, when this franchise entry appeared on the company’s books, and neither objected to the treatment of the franchise value at that time. In addition, the company’s accountant gave unrefuted testimony that he entered the franchise asset on the company’s books in 1968 when, as required by accounting practices acceptable at that time, he relied upon supporting documentation then available showing that the actual out-of-pocket expenditures equalled the amount which was capitalized. The accountant testified further that he would not have capitalized this intangible asset without some evidence of a cost justification at the time.

In light of the record evidence, and in the absence of any charge by the Commission that the company falsified accounts or otherwise attempted to avoid substantiation, the Commission’s rejection of the capitalized franchise value was arbitrary and constitutes a departure from the essential requirements of law. See Deltona Corp. v. Mayo, 342 So.2d 510 (Fla.1977). While the Commission is ordinarily free to disbelieve the testimony of any witness, the combination of circumstances offered in explanation by Florida Bridge was legally sufficient to require the Commission to produce, by some means, competent evidence of a malevolent or fraudulent purpose for the destruction of the records, of inaccuracy in the accountant’s testimony, or of impropriety in the dollar amount assigned to the franchise asset. The Commission did none of these and must, therefore, be reversed on this point.

5. Extraordinary maintenance fund. In its order the Commission directed Florida Bridge to freeze a reserve account which had been established for extraordinary maintenance, and to deposit $35,788 each year into the account until it has accumulated a reserve of $200,000. The purpose of these directives — to ensure that funds would be available for extraordinary maintenance to the company’s bridge facilities— was laudable. Florida Bridge asserts, however, that these directives exceed the Commission’s authority to “fix and regulate tolls, charges, uses and hours” of the Florida Bridge facility. We agree with the company. As stated in City of Cape Coral v. GAC Utilities, Inc., 281 So.2d 493 (Fla. 1973),

“[T]he Commission’s powers, duties and authority are those and only those that are conferred expressly or impliedly by statute of the State. Any reasonable doubt as to the lawful existence of a particular power that is being exercised by the Commission must be resolved against the exercise thereof, and the further exercise of the power should be arrested.” (Citations omitted.)

See also Deltona Corp. v. Mayo, 342 So.2d 510, 512 n.4 (Fla.1977). The Commission’s directives relating to the extraordinary maintenance fund are reversed.

Florida Bridge challenges four other aspects of the Commission’s order, but we deem it unnecessary to consider these matters. The Commission’s modified order is set aside, and this case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

BOYD, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

      . United Telephone Co. v. Mayo, 345 So.2d 648, 651-52 (Fla. 1977).

      . This figure represents the amount which the Commission determined to be excess annual revenue for the company after taxes.

      . § 347.08, Fla.Stat. (1975).

      . 281 So.2d at 496.

      . Two of these issues concern the Commission’s compliance with Florida’s Administrative Procedure Act, Chapter 120, Florida Statutes (1975 and 1976 Supp.). As to these the Commission met the essential requirements of the Act, and no additional action is required to vindicate the company’s procedural rights. The two remaining points raise constitutional issues which are mooted by our remand to the Commission for further proceedings.


author: ALDERMAN, Justice.

text:
    Clarence Harold NAPPIER, Petitioner, v. STATE of Florida, Respondent.
    No. 53408.
    Supreme Court of Florida.
    Oct. 5, 1978.
    Jack 0. Johnson, Public Defender, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for petitioner.
    Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for respondent.
   ALDERMAN, Justice.

The defendant, Clarence Harold Nappier, seeks review of the decision of the Second District Court of Appeal in Nappier v. State, 354 So.2d 929 (Fla. 2d DCA 1978). This decision conflicts with Stern v. State, 296 So.2d 549 (Fla. 3d DCA 1974). In Stern, the Third District Court of Appeal held that, where the defendant, upon conviction, might be subject to an enhanced sentence as an habitual felony offender in a subsequent proceeding pursuant to Section 775.084, Florida Statutes (1973), it is error for the trial judge, when instructing the jury as to the maximum sentence upon conviction, to fail to inform the jury of the enhanced sentence the defendant might receive as an habitual felony offender, and the District Court reduced the enhanced sentence imposed on the defendant Stern. In the present case, the Second District Court reached a contrary conclusion of law and affirmed an enhanced sentence imposed on the defendant Nappier.

To resolve the conflict, we accept jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, and approve the rationale and holding of the Second District in the present case.

Nappier was tried for “strong arm” robbery contrary to Section 812.13(2)(c), Florida Statutes (1975). The trial judge, without objection, instructed the jury that the maximum penalty Nappier could receive upon conviction of “strong arm” robbery was fifteen years. The jury was not informed that, if Nappier were convicted, he might be subject to the enhanced sentencing provisions of Section 775.084, Florida Statutes (1975). The jury returned a guilty verdict. The trial court thereupon adjudged Nappier guilty and, at a subsequent sentencing hearing, found him to be an habitual felony offender within the meaning of Section 775.084, Florida Statutes (1975), and sentenced him to an extended term of thirty years in prison.

On appeal, Nappier, relying on the decision in Stern, argued that the trial judge erroneously instructed the jury and, because of this error, he was entitled to have his thirty-year sentence reduced to fifteen years. The District Court, while acknowledging the holding in Stern, refused to follow that decision, stating:

We decline to follow the decision in Stern for the following reasons: First, had the judge in the case at bar told the jury that appellant could receive up to thirty years in prison because of his status as an habitual felony offender, this would have improperly revealed to the jury that appellant had been previously convicted of a crime. The defendant here did not object 'to the instruction given, nor did he request the trial judge to tell the jury about his past criminal record and the possibility of an enhanced sentence should he be convicted. That question, therefore, is not before us.
Second, as the trial judge instructed the jurors, the determination of the extent of punishment rests solely within the discretion of the trial judge, not the jury.
A third reason can be found within the habitual felony offender statute itself. Section 775.084, Florida Statutes (1975), requires that a separate proceeding must be conducted to determine whether, for the protection of the public, it is necessary to sentence the defendant to an extended term. Thus, at the time the trial judge instructs the jury as to the possible penalties should they convict the accused, he has absolutely no way of knowing whether the defendant will be found to be an habitual felony offender in the subsequent proceeding.

Nappier argues that the District Court’s reasons for rejecting Stern are unsatisfactory. He says that it is fundamentally unfair to sentence a defendant to an extended term in prison when the jury has been previously informed that the maximum penalty which might be imposed upon the defendant in the event of a conviction is a lesser term of imprisonment. His argument is grounded on the premise that the failure to instruct on the possibility of an enhanced sentence somehow diminishes a defendant’s changes of receiving a “jury pardon.”

We find defendant’s argument to be without merit. Accordingly, we approve the rationale and holding of the District Court in this case and discharge the writ.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. W. L. BLACKWELL, Jr., Respondent.
    No. 52978.
    Supreme Court of Florida.
    Oct. 12, 1978.
    H. Glenn Boggs, II, Asst. Staff Counsel, Tallahassee, for complainant.
    Charles B. Cleveland, Miami Shores, for respondent.
   PER CURIAM.

By Petition to be Placed on Inactive List, W. L. Blackwell, Jr., asserts that he has been incapable of practicing law since December 1975 because of physical illness due to diabetes. He states that he will refrain from the practice of law and will not apply for readmission to the active practice for a period of six months. The Board of Governors voted to accept Blackwell’s petition and the Florida Bar requests that Blackwell be placed on the inactive list for a period to extend for at least six months.

The petition of W. L. Blackwell, Jr., is granted and is hereby placed on the inactive list of the Florida Bar for incapacity not related to misconduct. A Petition for Readmission to the Active Practice shall not be filed until after the expiration of six months from this date.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Hugh F. DUVAL, Respondent.
    No. 54531.
    Supreme Court of Florida.
    Oct. 12, 1978.
    Janet W. Behnke, Bar Counsel, Ocala and David G. McGunegle, Asst. Bar Counsel, Orlando, for complainant.
   PER CURIAM.

This is a disciplinary proceeding brought by The Florida Bar. The respondent, Hugh F. Duval, has not filed a petition for review. The respondent was found guilty of three counts of unethical conduct by the referee who recommends disbarment for the third and most serious violation.

The findings of fact of the referee for each of the three counts are summarized as follows:

In the first count it was determined that respondent in a criminal case had received $1500 of a $2500 fee; he talked with his client only one time for a period of twenty-five minutes before the trial date and thereafter failed to appear for his client although numerous attempts were made to contact him by the state attorney.

As to the second count, the respondent was employed to foreclose a lien and received the sum of $2000 for his total fee in concluding that type of proceeding. The respondent delayed filing the necessary suit and thereafter was unavailable to his client, necessitating the court to appoint counsel to represent his client. The referee found that the fee was excessive and that a proper charge would have been $500 for the services performed.

The third, most serious count concerns a defalcation of $15,000 in a real estate transaction in which the respondent acted as an escrow agent for the said sum. The transaction was not consummated, and although demand was repeatedly made upon the respondent for the return of the $15,000, he refused to do so, resulting in a civil suit being filed and a personal judgment being entered against him for said sum. Prior to the entry of the judgment, the trial court had entered numerous orders directing the respondent to respond and to turn over the escrow funds to the proper party.

Upon these findings of fact, the referee found the respondent guilty of violating Disciplinary Rules 2-110(A)(3) and 6-101(A)(3) for the conduct described in Count I; 1 — 102(A)(5), 1-102(A)(6), 2-106(B) and 2-110(A)(3) for the conduct described in Count II; and 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 9-102(B)(3), 9-102(B)(4), and Rules 11.02(3)(a) and 11.02(4) of The Florida Bar’s Integration Rule for the conduct described in Count III.

The referee recommended that the respondent be publicly reprimanded for the conduct described in Count I, suspended for six months and required to refund $1500 as to Count II, and disbarred for the conduct described in Count III.

We have reviewed the record in these proceedings and approve the findings and recommendations of the referee. Accordingly, Hugh F. Duval is hereby disbarred. The disbarment shall be effective on November 13, 1978, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business. The filing of a motion for rehearing shall not alter the effective date of this disbarment.

Execution is directed to issue for the costs of these proceedings against the respondent, in the amount of $2,645.94.

It is so ordered.

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


author: McCORD, Chief Judge.

text:
    Walter G. WINSTEAD and Lise H. Faircloth, formerly Lise H. Winstead, Appellants, v. Lois B. ADAMS, Appellee.
    No. II-263.
    District Court of Appeal of Florida, First District.
    June 30, 1978.
    Robert W. Elrod, Jacksonville, and Albert E. Buschman, Jr., Jacksonville Beach, for appellants.
    Charles W. Arnold, Jr., Jacksonville, for appellee.
   ON MOTION TO DISMISS

McCORD, Chief Judge.

Appellee has moved to dismiss this appeal for failure of appellants to comply with the Florida Appellate Rules. This action is an appeal from a summary final judgment entered on December 21, 1977. Notice of appeal was filed on December 27,1977, and on January 18, 1978, assignments of error and directions to the clerk were filed. Under Florida Appellate Rule 3.7, appellant’s brief was due to be filed with this Court on March 7, 1978, and the record on appeal should have been filed with this Court on April 16, 1978. The motion to dismiss points out that as of April 27, 1978, neither the record nor appellant’s brief had been filed. The record was filed the following day, April 28, 1978. We then issued an order directed to appellants to show cause why the motion to dismiss should not be granted, and appellants’ attorneys filed a response thereto mentioning difficulties they had had communicating with their clients. The response, however, included no explanation of why they made no motion for extension of time stating good cause therefor before the time had expired.

This Court in Akin v. Harvey, 283 So.2d 872 (Fla. 1 DCA 1973), said:

“Oftentimes and rightfully so, the judicial system is criticized for inordinate delay in reaching a final judgment disposing of controversies among litigants. It is the responsibility of attorneys to promptly dispatch the duties they owe their clients. Proper functioning of the adversary system depends to a great extent upon lawyers abiding by the procedural rules and timetables prescribed in order for a prompt final decision to be reached. The inordinate, inexcusable delay by appellant in failing to take any action to prosecute the subject appeal within the time periods prescribed by the Florida Appellate Rules requires that the subject motion to dismiss be granted.”

There has been considerable public criticism as to the length of time it takes an appeal to move through the appellate process. Some of this delay is occasioned by the large volume of appeals that the appellate courts are called upon to process and adjudicate but much of it is occasioned by the failure of some attorneys to comply with the Florida Appellate Rules. The latter causes additional processing of the appeal and thereby compounds the court’s problems with the former. We can,' and perhaps should, dismiss the appeal as in Aken v. Harvey, supra, for such dereliction by an attorney. Such action would decrease our case load but would be hard on the litigant. Since the opinion in Aken, the Court has been more tolerant of such failure because it has been reluctant to punish the litigant for his attorney’s dereliction.

Upon our further consideration of this problem, we do not in any degree abandon dismissal as a sanction for noncompliance with the Rules and some appeals will be dismissed for such reason, but we here serve notice that in the future an offending attorney may expect, in addition to dismissal or in lieu thereof, to receive an order directing him to appear before this Court at a specific time and show cause why he should not be held in contempt of this Court and punished for failure to comply with the Appellate Rules. Since we have not previously given notice of this procedure to the Bar, we will not inaugurate it in this case, but we take this means of serving a caveat upon attorneys who in the future ignore the Appellate Rules.

The motion to dismiss the appeal is denied.

MILLS and ERVIN, JJ., concur.


text:
    Henry BERKOWITZ and Renee Berkowitz, his wife, Appellants, v. RIVIANA FOODS, INC., a Foreign Corporation, d/b/a Lum’s and the Maryland Casualty Company, Appellees.
    No. 76-2168.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Feldman, Abramson, Smith & Magidson and John M. Abramson, Miami, for appellants.
    Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appel-lees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

This is an appeal by plaintiffs below from a summary final judgment entered in favor of the defendants in an action for personal injuries sustained by Mr. Berkowitz, a United States postman, when he was entering the defendant’s premises to make a routine delivery and pick-up of mail. The injuries occurred when Mr. Berkowitz bumped his nose on a light fixture while walking on a brick planter near the front door of Lum’s. He alleged that the parking area was flooded by heavy rains and that improperly parked cars blocked the entrance, therefore he chose to walk on the planter to make his entrance into the defendant’s place of business.

The sole question on appeal is whether the trial court erred in entering a summary final judgment in favor of the defendants. From our careful examination of the record on appeal we have concluded that the record conclusively establishes the absence of any genuine triable issue of material fact and defendants were entitled to a judgment as a matter of law.

For the reasons stated the summary judgment is affirmed.

Affirmed.


author: PER CURIAM. PER CURIAM.

text:
    Oscar J. MANNEN and Harvey Factor, Appellants, v. Jerry KURLAND et al., Appellees.
    No. 77-2092.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    On Rehearing Oct. 24, 1978.
    Fowler, White, Burnett, Hurley, Banick & Knight and Karl Connell and George B. Foss, Jr., Miami, for appellants.
    Linet, Weiner, Zedeck & Bergman and Richard H. Bergman, North Miami Beach, Stanley L. Seligman, Hollywood, for appel-lees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970).

ON REHEARING

PER CURIAM.

The petition for rehearing is granted and the order under review is reversed on the authority of Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla. 1978).


author: SMITH, Acting Chief Judge.

text:
    GRAHAM CONTRACTING, INC., Appellant, v. STATE of Florida DEPARTMENT OF GENERAL SERVICES, Appellee.
    No. KK-39.
    District Court of Appeal of Florida, First District.
    July 14, 1978.
    Jon M. Wilson of Van Den Berg, Gay & Burke, P.A., Orlando, for appellant.
    Spiro T. Kypreos, Tallahassee, for appel-lee.
   ON MOTION TO DISMISS APPEAL

SMITH, Acting Chief Judge.

Appellee’s motion to dismiss this appeal is denied. Jurisdiction is relinquished to the Department, however, for appropriate procedures under Section 120.57, Florida Statutes (1977). The Department’s letter dated April 14, 1978, appears to determine appellant’s substantial interests. Yet it does not advise appellant of its opportunity for a hearing under Section 120.57(2), which is appropriate if the controlling facts are not disputed. Nor have we been referred to Department rules which provide notice of an opportunity to be heard as provided in Section 120.57(2). See General Development Corporation v. Division of State Planning, 353 So.2d 1199 (Fla. 1st DCA 1978). We have not been referred to any Department rule limiting the time within which, after April 14, 1978, appellant may appropriately have requested a Section 120.57(1) hearing on disputed factual matters, if any there are. The Department will therefore provide appellant an appropriate hearing on the matter addressed by the Department’s letter of April 14,1978, i. e., the tardiness of appellant’s application for extra compensation and for extension of time. If, upon an appropriate hearing, the Department finds the appellant’s application for extra compensation and for extension of time was untimely, an order so finding will be entered pursuant to Section 120.59 and a copy filed in this court, whereupon the motion to dismiss this appeal may be renewed.

MELVIN and BOOTH, JJ., concur.


text:
    GRAHAM CONTRACTING, INC., Appellant, v. DEPARTMENT OF GENERAL SERVICES, Appellee.
    Nos. KK-284, KK-285.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1978.

      Jon M. Wilson of van den Berg, Gay & Burke, P.A., Orlando, for appellant.
    Spiro T. Kypreos, Tallahassee, for appel-lee.
   SMITH, Acting Chief Judge.

Graham, the general contractor for construction of a state office building, appeals from related final orders of the Department of General Services denying the contractor’s claims for additional compensation and for extensions of the time of performance, and denying also Graham’s request for a formal hearing on the question of whether the contractor’s claims were submitted to the architect within the times prescribed by the contract. Section 120.57(1), Florida Statutes (1977); Fla.R.App.P. 9.110.

By motions to dismiss, the Department contends that this court lacks jurisdiction of these appeals under the Administrative Procedure Act, Section 120.68. Because the motions to dismiss embrace all issues raised by the appeal, we accelerated consideration of the merits, received additional briefs, and heard oral argument. We find that the Department’s position is unfounded, that the court has jurisdiction and that the Department must accord Graham a hearing on the disputed issue of whether Graham’s claims under the contract were timely.

Urging the inapplicability of Section 120.-57, which requires an agency hearing in proceedings determining a party’s substantial interests, and Section 120.68, providing for judicial review of agency action, the Department does not dispute that it is an agency subject to the Administrative Procedure Act, nor that its denial of Graham’s claims for tardiness determined Graham’s substantial interests. Rather, the Department contends that its contract with Graham reserves to the Department alone the determination of Graham’s claims, and thus makes the Administrative Procedure Act in all respects inapplicable; and, moreover, that an appeal to this court pursuant to Section 120.68 and Fla.R.App.P. 9.110 is in effect a suit against the state for money allegedly due under a contract, which is forbidden for lack of legislative waiver of the sovereign’s immunity.

We rejected this argument of the Department, without discussing it, in a recent and similar case involving the same contractor. Graham Contracting, Inc. v. Dept. of General Services, 363 So.2d 809, (Fla. 1st DCA 1978). We now make our ruling explicit.

We have repeatedly held that the 1974 Administrative Procedure Act enforces its discipline on all agency action, unless specifically exempted, which affects the substantial interests of a party. E. g., State ex rel. Dept. of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); Mc Donald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). And the Act subjects all such agency action to the judicial review which Graham here seeks. Section 120.68.

There can be no doubt that the Department’s contract with Graham calls for agency action which potentially affects Graham’s substantial interests and thereby subjects the Department’s action to Chapter 120 discipline and remedies. The agency action required is precisely as stated by the contract:

8.5 Claims and Disputes: Except where under the terms of this contract the Architect’s determination is final, and except as otherwise specifically provided in the contract, all disputes arising under the contract . . . shall be decided by the Architect, subject to written appeal within thirty (30) days to the Department of General Services. Hearings in connection with such appeals shall be held before one or more Hearing Examiners, appointed by the Executive Director of the Department of General Services to hear such appeals, whose findings, if approved by the Executive Director or the Governor and Cabinet, shall be final and conclusive upon the parties thereto as to such disputes. In the meantime, the Contractor shall diligently proceed with the work as directed. In the determination and settlement of any such dispute, the said Review Panel may assess the costs and charges of the proceeding upon either or both parties, as it may deem equitable under the circumstances . . .; and if it deems it equitable, it may award to the successful party, in any dispute, damages for delays, or for necessary costs and expenses, caused by the proceeding, if it finds that the appeal or refusal to accept the Architect’s determination was without reasonable cause. The determination of all such matters in the manner provided in this Article shall be a condition precedent to any right to legal action of either party against the other or any matter of dispute arising under this contract.

The action required of the Department under clause 8.5 is agency action by an order as defined by Section 120.52(9):

“Order” means a final agency decision which does not have the effect of a rule and which is not excepted from the definition of a rule, whether affirmative, negative, injunctive, or declaratory in form. An agency decision shall be final when reduced to writing.

In this case the Department’s orders denying Graham’s claims under the contract and denying Graham the requested Section 120.57(1) hearing on disputed factual issues are contained in letters. Though they do not meet the requirements for orders imposed by Sections 120.57 and 120.59, they are orders nonetheless, and final in the sense of being dispositive in the absence of judicial review. See Capeletti Brothers, Inc. v. State, Department of Transportation, 362 So.2d 346. (Fla. 1st DCA, 1978). “An agency’s failure to enter a proper order, or to afford a hearing, is an occasion for judicial review, not an impediment of it.” Harris v. Florida Beal Estate Comm’n, 358 So.2d 1123, 1125 (Fla. 1st DCA 1978). See also General Development Corp. v. Division of State Planning, 353 So.2d 1199, 1207 (Fla. 1st DCA 1977).

The Department, as the state’s contracting agency for millions of dollars of public works, contends in effect that its contracts may exempt Department action from the Administrative Procedure Act, so that neither the Act’s procedural discipline of agency proceedings nor its provision for judicial review is applicable. The Department’s companion argument is that, because the legislature has not elsewhere authorized suits against the Department on state contracts, the Department is utterly unaccountable in its decisions to resolve contract disputes in its favor and against contractors. We reject that position in its entirety. The Department’s contract with Graham does not purport to exempt the Department from the Administrative Procedure Act; and, if it did, no such contract could be given supervening effect over the Act, which disciplines this and all other agency action not specifically exempted. The legislature has not authorized the Department to contract to itself the power to decide its own monetary disputes with contractors and to place its decisions, and the proceedings in which they are made, beyond the discipline of Chapter 120.

There is no difficulty here with sovereign immunity. We may assume, though we need not decide, that Graham has, in a sense, sued the state by this appeal. Although the relief immediately requested is simply Department compliance with Chapter 120, Graham’s ultimate goal is additional money and construction time under its contract. Certainly that is “an interest of value in a material sense to the State as a distinct entity” and is the sort of interest which cannot be enforced by suit against the state without waiver of sovereign immunity. State ex rel. Florida Dry Cleaning and Laundry Board v. Atkinson, 136 Fla. 528, 538, 188 So. 834, 839 (1938); Hampton v. State, 90 Fla. 88, 99-100, 105 So. 323, 326-27 (1925), and cases cited; Circuit Court of the Twelfth Jud. Circuit v. Dept. of Natural Resources, 339 So.2d 1113 (Fla. 1976), impliedly receding from Gay v. Southern Builders, Inc., 66 So.2d 499 (Fla. 1953); State ex rel. Division of Administration, Dept. of Transp. v. Oliff, 350 So.2d 484 (Fla. 1st DCA 1977). See also Circuit Court of the Twelfth Jud. Circuit, supra at 1116, and Dickinson v. Board of Public Instr. of Dade Co., 217 So.2d 553, 560 (Fla.1968) (dissent), concerning the use of legislative claims bills to discharge “moral obligations,” i. e., unenforceable legal obligations of the state.

It cannot be doubted that the Administrative Procedure Act’s “impressive arsenal of varied and abundant remedies for administrative error” includes judicial power to enforce, in proper cases, contractors’ money claims against state agencies which have groundlessly denied them. Section 120.68 grants judicial power, on review of agency action, to decide “the rights, privileges, obligations, requirements, or procedures at issue between the parties,” and “to provide whatever relief is appropriate,” whether “mandatory, prohibitory, or declaratory in form.” Section 120.68(13)(a). See also Section 120.69(l)(b).

If these provisions make Section 120.68 appeals suits against the state for which legislative waiver of sovereign immunity is required, Article X, Section 13, Constitution of Florida, the short answer to the Department’s claim of immunity is that these are the remedies which the legislature has provided by Chapter 120. To the extent of those remedies, the legislature has waived any claim of state immunity for state action wrongfully depriving citizens of contract rights. This court’s decision in State Road Dept. v. Cone Bros. Contracting Co., 207 So.2d 489, 491 (Fla. 1st DCA 1968) is not to the contrary. Although the court denied judicial review of the State Road Department’s action on a contract dispute, it did so construing the 1961 Administrative Procedure Act and in circumstances in which the legislature had provided a remedy in circuit court. Section 337.19, Florida Statutes (1967).

We likewise reject the Department’s contention that Chapter 120 is unconstitutional because its enacting bill gave no notice of an intention to waive the sovereign’s immunity to the extent provided in the Act. Article III, Section 6, Florida Constitution. The title of Chapter 74-310 gives sufficient notice of “providing judicial review” and of “providing for enforcement of agency action.” Contrast State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (1930). Any imperfection in the title to the 1974 Act was cured by reenactment of Florida Statutes in 1975. Belcher Oil Co. v. Dade County, 271 So.2d 118 (Fla.1972).

The Department’s remaining grounds for denying Graham Chapter 120 remedies on its contract claims are also unavailing. Graham’s failure to assert to the Department that Graham has paid or is liable for the extra compensation and extended time requested for the benefit of a subcontractor is not shown to deprive Graham of substantial interests in the relief requested. Graham is subject to substantial penalties for failure to complete construction within the allotted time, as extended. Only Graham is in privity with the Department, and the contract requires that the contractor exact the subcontractors’ compliance with the time constraints on claims. If there is a reason why a contractor should be required to do more than to vouch for the claim as meritorious, that reason does not appear in the contract, or in any law to which we have been referred, or in any Department rule. Graham may not thusly be denied a hearing.

The Department begs the question by its claim that the uncontroverted record shows Graham’s claims were tardy. Because there have been no proceedings satisfying either Section 120.57(1) or 120.57(2), we have no record; we have only a batch of correspondence by which Graham contends and the Department denies that there are disputed factual issues. These free-form proceedings may end the controversy if they are accepted as ending the controversy, but not if a substantially affected party timely invokes Section 120.57(1) or (2) remedies. Capeletti Bros., Inc. v. State, Department of Transportation, supra. If the operable facts are agreed on, or if the factual dispute Graham relies on for entitlement to a Section 120.57(1) hearing is in the Department’s judgment irrelevant, the Department may conduct Section 120.57(2) informal proceedings, make a record of Graham’s proffer on asserted factual issues requiring formal proceedings, and enter an order satisfying Section 120.59. See also General Development Corp., supra, 353 So.2d at 1209, and the model rules governing informal proceedings in the absence of agency rules more particularly appropriate to recurrent controversies before the agency. Fla.Admin.Code Rule 28-5.41 et seq.

Evidently because the Department has erroneously conceived that Chapter 120 is inapplicable to the Department, it has no rules describing the general course and method of its operations and prescribing rules of practice and procedure for the resolution of disputes under its typical claims and disputes; clause. Lamentably, four years after the adoption of Chapter 120 and three years after it became effective, the Department remains in violation of Section 120.53(l)(a), (b), and (c). Its counsel also advises, upon our inquiry at oral argument, that the Department maintains no subject-matter index of its orders entered these past three years in such controversies. If that is true, the Department also violates Section 120.53(2) and deprives itself, its contractors, the general public; and this court of the continuity and rationality such a resource would provide. See McDonald, supra, 346 So.2d at 582.

The Department’s action on Graham’s claims is set aside and the cause is remanded to the Department for further proceedings in conformity with Section 120.57(1) or (2). Pursuant to Section 120.57(l)(b)9, costs of $50 and attorneys’ fees of $1500 are assessed for Graham and against the Department. See Capeletti Bros., Inc. v. State, Dept, of Transportation, supra.

REVERSED, REMANDED.

ERVIN and BOOTH, JJ., concur.

      . Section 8.3.2 of an A.I.A. contract document, incorporated in Graham’s contract with the Department, provides that claims for extension of time shall be made in writing to the architect “no more than twenty days after the occurrence of the delay; otherwise they shall be waived.” Section 12.2.1 of the same document provides that a contractor claiming entitlement to an increase in compensation shall give the architect written notice “within twenty days after the occurrence of the event giving rise to such claim. ... No such claim shall be valid unless so made.”

      . State ex rel. Dept. of General Services v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977).


author: BOARDMAN, Judge. BOARDMAN, Judge.

text:
    Antonio F. PENA, Individually, the Tony Pena Corporation, a Florida Corporation, and Tony Pena Financial Corporation, a Florida Corporation, Appellants/Cross-Appellees, v. TAMPA FEDERAL SAVINGS AND LOAN ASSOCIATION, a corporation, Thomas M. Sherrill, Clarice L. Sherrill, his wife, Earl H. Ware, Jr., and Lacey and Fleming Advertising, Inc., a corporation, Appellees.
    No. 77-1427.
    District Court of Appeal of Florida, Second District.
    July 26, 1978.
    Rehearing Denied Oct. 13, 1978.

      James L. Lee, Jr., Tampa, for appellants/cross-appellees.
    Gregory E. Mierzwinski and Wm. Earle Tucker of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appel-lee/cross-appellant Tampa Federal Savings and Loan Association.
   BOARDMAN, Judge.

Appellants/cross-appellees/defendants, Antonio F. Pena (Antonio), The Tony Pena Corporation (Pena Corp.), and Tony Pena Financial Corporation (Financial Corp.) appeal the partial final summary judgment entered in favor of appellee/cross-appel-lant/plaintiff Tampa Federal Savings and Loan Association (Tampa Federal) in an action to foreclose a mortgage. Tampa Federal cross appealed.

Tampa Federal filed this action to foreclose 57 lots. The 57 lots were at one time held solely by Pena Corp. but 56 of them had been transferred to Financial Corp. pri- or to institution of the foreclosure suit. Antonio was president and sole stockholder of both corporations.

Tampa Federal filed a motion for summary judgment seeking foreclosure of the 57 lots owned by both corporations. In the instrument designated “PARTIAL SUMMARY FINAL JUDGMENT OF FORECLOSURE” the trial judge granted the motion for summary final judgment as to the 56 lots owned by Financial Corp. Because Antonio and Pena Corp. had made allegations of fraud, the judge reserved jurisdiction for trial on the foreclosure of the one remaining lot held by Pena Corp. and on the counterclaim of Antonio and Pena Corp.

Appellants argue that the court did not have the authority to enter a partial summary judgment. Although it may be surprising, the Florida Rules of Civil Procedure, unlike the Federal Rules of Civil Procedure, do not permit entry of a final summary judgment until the entire case is resolved. This is true even where there are distinct and severable multiparties or multi-claims. The Florida rules incorporated the summary judgment rule, Rule 56 of the federal rules, but did not incorporate Rule 54 of the federal rules which specially allows for partial judgments as to several claims or parties joined in one action.

Under the scheme set out by the federal rules and followed by the Florida rules, a party may move for summary judgment as to one or more claims. See Fed.R.Civ.P. 56; Fla.R.Civ.P. 1.510. In both jurisdictions where the entire case cannot be finally disposed of on the motion for summary judgment, the trial judge is empowered by the summary judgment rule to separate those issues which require further litigation from those which are properly resolved on the record by summary judgment. The issues which are appropriate for immediate summary resolution are to be noted by an order stating that they have been disposed of by motion for summary judgment and reciting any pertinent undisputed facts. The rule does not contemplate that this order shall be a final judgment on the issues which have been decided. The provisions of the order are to be ultimately incorporated into the final judgment at the end of the case. Pointer Oil Co. v. Butler Aviation of Miami, Inc., 293 So.2d 389 (Fla.3d DCA 1974).

Rule 54(b) of the federal rules allows for a final judgment, including a final summary judgment, to be entered on resolution of multiple claims or of the issues between two or more of the parties. The trial judge must, however, expressly find that a final judgment should be entered under the circumstances and state that the judgment is final. Because there is no counterpart in the Florida rules to federal Rule 54(b), the Florida rules do not authorize entry of a partial summary judgment as a, final judgment. Fontainebleau Hotel Corp. v. Young, 162 So.2d 303 (Fla.3d DCA 1964). We hereby recede from our obiter dictum to the contrary in Morris v. Truax, 152 So.2d 515 (Fla.2d DCA 1963).

Because a sale under a foreclosure decree may not be had until the decree is final, it is also necessary to vacate that part of the summary judgment which directs a sale pri- or to resolution of the entire case. The remaining provisions of the summary judgment shall be considered as interlocutory and may be subject to review upon appeal from the final judgment.

On cross-appeal Tampa Federal argues that summary judgment should have been granted as to all 57 of the lots since (1) there were no issues of material fact except for those created by the counterclaim and defense of fraudulent representations and (2) the counterclaim and defense depended on an alleged oral agreement at variance with the terms of the written agreement which were inadmissible under the parol evidence rule. The argument is not sound, however, in light of the general rule that although an oral agreement may not be introduced to vary the written agreement it may be introduced to show that the written agreement was procured by fraudulent means. See 14 Fla.Jur. Fraud & Deceit § 80 (1957); Roper v. Florida Public Utilities Co., 131 Fla. 709, 179 So. 904 (1938).

REVERSED in part, and AFFIRMED in part.

GRIMES, C. j., and OTT, J., concur.

ON REHEARING

BOARDMAN, Judge.

Subsequent to the time this court filed its original opinion in this case, we have had the opportunity to reconsider our decision. Upon re-examination of opinions from the Florida courts, we have determined that our original opinion was not entirely correct. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla. 1974) convinces us that the summary judgment rule, incorporated in the Florida Rules of Civil Procedure from the Federal Rules of Civil Procedure, has not been construed by the Florida courts as it has been by the federal courts. Therefore, Fontainebleau Hotel Corp. v. Young, 162 So.2d 303 (Fla.3d DCA 1964) is to be confined to its facts, that is to situations involving resolution of less than all of a single claim. We now hold that except in certain cases of joint liability it is appropriate to enter a final summary judgment by which one or more parties are removed from the action. Since the summary judgment below fully disposed of the claims involving Financial Corp., it becomes necessary to consider the merits of that party’s appeal.

The point which merits our attention is whether the trial court erred in failing to permit Financial Corp. to amend its answer to include the affirmative defenses and counterclaims of Antonio and Pena Corp. Any abuse of discretion in this regard could not have prejudiced Financial Corp. by failure to allow the requested amendment. The basis for the remaining counterclaim and defense was a loan agreement entered into by Tampa Federal and Pena Corp. Putting aside the issues of (1) whether the counterclaim and defense are meritorious, (2) whether fraudulent representation should be considered a defense to a foreclosure in this posture, and (3) whether Financial Corp. technically pleaded the counterclaim and defense properly, Financial Corp. was not a party to either the alleged oral contract or the written contract. Therefore, it cannot secure relief from foreclosure nor receive an award of damages for reliance on any misrepresentations since Financial Corp. was not defrauded by Tampa Federal. See, e.g, Mailing Corp. v. Ladan Corp., 85 So.2d 607 (Fla.1956); see 14 Fla. Jur. Fraud and Deceit § 43 (1957). Since no claim for deficiency is being made against Antonio and Pena Corp., the fact that their counterclaim and defense remain pending should not affect the disposition of the 56 lots. Accordingly, the foreclosure and sale of these lots were appropriate.

Our original opinion is modified to the extent set forth above which has the effect of affirming the ruling of the trial court. Otherwise, the petition for rehearing is denied.

GRIMES, C. J., and OTT, J., concur.

      . It seems clear that where two parties may be contractually liable, a final judgment, summary or otherwise, should not be entered which purports to dismiss only one of them. See Conboy v. City of Naples, 226 So.2d 108 (Fla.2d DCA 1969); Ervin R. Welch & Co. v. Johnson, 138 So.2d 390 (Fla.2d DCA 1962).

      . Our recent decision in Bourne v. Barnett Nat'l Bank, 361 So.2d 455 (Fla.2d DCA 1978) which relied upon our original opinion is not affected by our reconsideration because in Bourne the several counts in the complaint were sufficiently related that a final summary judgment should not have been entered on less than all of them. See Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).


text:
    Chester W. HUTCHINS, as personal representative of the Estate of David T. Hutchins, a Deceased minor, Appellant, v. Kelly F. MILLS et al., Appellees.
    Nos. GG-490, HH-60.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1978.
    Rehearing Denied Oct. 30, 1978.

      Gardner Sharpe, Jr., of Billings, Frederick, Wooten & Honeywell, Orlando, for appellant.
    Carle A. Felton, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, G. Kenneth Gilleland, Tallahassee, Robert L. Shevin, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., for appellees.
   PER CURIAM.

The litigation followed a tragic accidental shooting of the decedent by the defendant, Kelly F. Mills, while Mills was hunting in the Camp Blanding Wildlife Management Area in Clay County.

Mills, his motor vehicle liability insurance carrier, Great American Insurance Company, the State of Florida, the Florida Game and Fresh Water Fish Commission were named defendants. We are not concerned with other defendants in the pending appeals.

The trial court entered a final summary judgment in favor of Great American Insurance Company on the issue of coverage on Mills’ truck. Plaintiff took an appeal.

The State of Florida and the Game and Fresh Water Fish Commission filed motion to dismiss the second amended complaint. The court granted the motion for lack of jurisdiction over the subject matter. After denial of petition for rehearing, plaintiff appealed.

The appeals were consolidated.

For consideration of the court of the summary judgment motion, the parties stipulated:

“On November 10,1974, GREAT AMERICAN INSURANCE COMPANY insured KELLY F. MILLS under a policy of automobile liability insurance which provided liability coverage for a pick-up truck owned by the Defendant, KELLY F. MILLS which indemnifies for bodily injury (caused by accident) and “arising out of the ownership, maintenance or use of the automobile”. That on the date of the accident, the Defendant, KELLY F. MILLS, was hunting deer and while standing in the bed of the said parked pick-up truck, in order to give him greater visibility in locating game, shot another hunter by accident. The truck was not in motion. Nothing about the maintenance or operation of the vehicle caused the accident or injury.
“The accident did not arise out of the inherent nature of the automobile as a motor vehicle.”

The policy of insurance provides coverage for bodily injury or death of third parties caused by accident and “ . . . arising out of the ownership, maintenance or use of the automobile”. The trial judge ruled as a matter of law that the accident and resulting death “ . . . did not arise out of the ‘ownership, maintenance, or use’ ” of the insured truck. We agree.

Neither ownership nor maintenance here play any part in determining coverage. The basic issue is whether or not the language “arising out of the . . . use” of the Mills truck affords coverage under the undisputed facts.

The appellant places emphasis on Fidelity & Casualty Co. of N. Y. v. Lott, 273 F.2d 500 (5th Cir., 1960). Here the insured while attempting to shoot a deer used the top of his parked automobile as a gun rest. A passenger in the vehicle was mortally wounded by the deflection of the discharge from the gun. The court held that the words “incident to and arising out of the use of a motor vehicle” would not be limited to situations when injury occurred either because of its operation or when standing after “normal use”. We think this is a strained and unrealistic construction of the insuring phrase. The court’s avenue of approach leading to coverage does not persuade us.

A decision we fully embrace is Norgaard v. Nodak Mutual Insurance Company, 201 N.W.2d 871 (N.D.1972). The court’s review of the authorities does impress us. Lott, supra, is severely criticized. In Norgaard a contrary conclusion was reached by following rational and logical reasoning.

In Norgaard the insurance company refused to defend an action brought against its insured. After judgment against the insured, he filed suit against the insurance company to recoup the amount of the judgment and certain legal expenses. The facts were not in dispute. Norgaard and three companions drove into the countryside in the insured vehicle for a bird hunt. While the car was stopped Norgaard used the roof of his automobile as a gun rest and discharged the gun. As the gun fired a companion, Baldock, while alighting from the automobile, was shot, the wound causing his death.

The trial court held that Baldock’s injury and death “ . . . did not result from the ownership, maintenance or use of the automobile . . .”. Hence, there was no coverage under the policy. The Supreme Court agreed saying: “It is our view that the death resulted not from the ownership, maintenance or use of the automobile, but from the use of the rifle, the rifle being an independent cause of Stanley’s death.” (P. 874)

The court had this to say concerning decisions relied upon by Norgaard:

“ * * * Although those decisions may be somewhat distinguished upon the facts, we do not rest our opinion in this case upon such distinctions, but rather base our opinion upon the idea that “use”, to result in liability on the part of the insurance carrier, must be such use as arises out of the inherent nature of the automobile.”

It continued with the pertinent observation:

“In the. instant case, the automobile was being used merely as a bench rest for the rifle. A fence post could have served the same purpose.”

To fortify its attack on Fidelity & Casualty Co. v. Lott, supra, the court quotes from Roland H. Long’s work, “The Law of Liability Insurance” (1972). He says the construction given by the Court of Appeal, Fifth Circuit, of the policy language “ ‘arising out of the use of an automobile . was both fallacious and latitudianarian’ ” (P. 895).

The opinion continued quoting Long on the phrase ‘arising out of’:

“ ‘The term is ordinarily understood to mean ‘originating from,’ or ‘growing out of,’ or ‘flowing from.’ It does not require a finding that the injury was proximately caused by use of the automobile, but only that it arose out of the use. An injury does not arise out of the use of an automobile if it is directly caused by some independent act or intervening cause wholly disassociated from, independent of, and remote from its use.’ Long, supra, § 1.22, pp. 1-57 and 1-58.”

Again, Norgaard quotes from an annotation in 89 A.L.R.2d 153. It says the cases agree that where there is no causal connection or relation between the accident and use of the vehicle, coverage is absent.

The court concluded that the use of the rifle constituted an independent and intervening cause of death so the incident was not covered by the policy.

We have referred frequently to the Nor-gaard decision for it is the most comprehensive and best discussion on the point before us that has come to our attention.

We hold that at the time of the injury causing death the “use” of Mills’ vehicle was not such as arises out of the inherent nature of the motor vehicle. Further, that the use of the firearm by Mills constituted an independent cause of the accident.

Stated another way, there was no causal connection between use of the truck as a deer stand and the resulting death of the deceased.

We agree with the trial judge’s conclusion and the authorities he cites.

The summary final judgment is therefore affirmed.

The other facet of the case is found in the claim against the State of Florida and its agency, Game and Fresh Water Fish Commission.

The accidental shooting and death of David T. Hutchins is alleged to have occurred on November 10, 1974. Suit was filed on September 15, 1976, without prior compliance with Section 768.28(6) F.S. Notice was not given the State until counsel’s letter of January 24, 1977. The State’s prior motions to dismiss the complaints apparently triggered counsel’s late notice of claim.

The trial judge held that the mandate of the statute (768.28(6)) denied the Circuit Court jurisdiction. His order of dismissal recites absence of jurisdiction of subject matter for the required notice of claim had not been given prior to institution of the suit.

Prior to the effective date of F.S. 768.-28(6) courts did not have subject matter jurisdiction of tort suits against the State and its agencies because they enjoyed sovereign immunity pursuant to Article X, Section 13, Florida Constitution. (Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976)). However, by enacting F.S. 768.28 the legislature provided for waiver of sovereign immunity in tort actions. Therefore, pursuant to that statute, courts do now have subject matter jurisdiction to consider suits which fall within the parameters of the statute.

F.S. 768.28(6) is analogous to Section 95.241, Florida Statutes 1973, now revised, which required a written notice of claim to be given a municipality within ninety days of the occurrence or discovery of certain injuries as a prerequisite to the maintenance of an action against the municipality for those injuries. In Rabinowitz v. Town of Bay Harbor Islands, 178 So.2d 9 (Fla. 1965), the Supreme Court held that a municipality may waive or be estopped to assert the benefit of claim notice statutes such as Section 95.241, Florida Statutes 1973. Under that rationale, it follows that under certain conditions, the state or its agencies might be deemed to have waived the claim notice requirements of 768.28(6). If it may be so waived it cannot be jurisdictional.

However, since there are no allegations and no evidence of waiver or estoppel in this case, the trial court correctly dismissed the claim against the State and the Commission. We reach such result not because the trial court lacked subject matter jurisdiction of the claim but because appellant failed to plead a compliance with F.S. 768.28(6) which is in the nature of a condition precedent and which must be plead by appellant in order to state a cause of action. 25 Fla.Jur. Pleadings § 57, p. 222.

The appellant contends that a wrongful death action is exempt from Section 768.28 Florida Statutes. If we assume the position is correct, which we gravely doubt, the plaintiff has no right of action against the State. Only with the limited waiver of sovereign immunity found in the statute does he have a vehicle into court. Florida courts have often construed Article X, Section 13, Florida Constitution, as providing complete sovereign immunity unless waived by the legislature or constitutional amendment. See Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, (Supra).

After plaintiffs complaints were dismissed for failure to exhaust the statutory administrative remedies he, without leave of court, filed a third amended complaint and a motion to abate. He sought by the motion to abate the action. His reason, he says, was to allow the State and its agency the opportunity to consider the claim. Obviously, this was an empty gesture made for the purpose of attempted revival of a judicially dead litigation. The motion is completely without merit.

The order of the trial court dismissing the complaints and denial of the motion to abate is hereby affirmed.

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

ON PETITION FOR REHEARING

PER CURIAM.

Upon reconsidering the verbiage of our foregoing opinion we determine that we should not and do not, at this time, “fully embrace * * * Norgaard v. Nodak Mutual Insurance Company, 201 N.W.2d 871 (N.D.1972).” That opinion and the authorities therein cited are most persuasive and helpful. However, the facts of that case are distinguishable from those sub judice and while we yet adhere to the conclusion reached in our foregoing opinion we are not prepared at this time, on considering the facts of this case, to fully embrace what we consider to be a further step as announced in the Norgaard decision. In the case sub judice the pick-up truck had absolutely no connection with the accident giving rise to this controversy. Mills was not driving the pick-up truck nor does it appear that it was being used incident to the hunting, except that Mills was merely standing in the bed of the truck for the purpose of obtaining greater visibility. He could just as well have been standing on a ladder, a stump, a log or he could have been up in a tree. Under those circumstances the use of the vehicle was not related to the accident. However, had the hunters been riding in the truck looking for game, and then paused to shoot, quite a different situation would have been presented. We are not therefore prepared at this time, those not being the facts of this case, to hold that were those the facts a different result would or would not be required. We will leave that question which is not now before us for a later day.

Accordingly, we yet affirm and while we consider the Norgaard decision as persuasive precedent, we do not “fully embrace” either the decision or the totality of its reasoning.

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

McLANE, RALPH M., Associate Judge, dissents and adheres to the original opinion.


author: BOYER, Acting Chief Judge. BOOTH, Judge, BOYER, Acting Chief Judge.

text:
    STATE of Florida DEPARTMENT OF NATURAL RESOURCES, Appellant, v. HUDSON PULP & PAPER CORPORATION, Frank A. Ford, as trustee, Hercules Power Company, now known as Hercules Inc. of Delaware, Rotaler Corporation, Formerly Cousins Investment Company, and Barnett Bank of Hollywood, as trustee, Appellees.
    No. II-68.
    District Court of Appeal of Florida, First District.
    Sept. 18, 1978.
    On Rehearing Nov. 8, 1978.

      Jack W. Pierce and Kent A. Zaiser, Tallahassee, for appellant.
    David W. Foerster of Foerster & Hodge, Jacksonville, for appellees.
   BOYER, Acting Chief Judge.

A brief chronological recitation of this case is necessary to an understanding of the legal issues involved. Notwithstanding the several parties designated as appellees, the real parties to this appeal are the State of Florida Department of Natural Resources, hereinafter called the Department, and Frank A. Ford, as Trustee for Emma Gar-rard Ford, Ray Ford Veech, Jean Ford Pen-rod and Frank A. Ford, hereinafter called Ford.

In 1975 the Legislature of the State of Florida passed Chapter 75-251, Laws of Florida, which provides in material part as follows:

“The Board [the Governor and Cabinet as the head of the Department of Natural Resources] is empowered and authorized to acquire by the exercise of the power of eminent domain, in accordance with Chapter 73, any land or water areas, related resources and property, and any and all rights, title and interest in such land or water areas, related resources and other property in the Volusia recharge area lying and being in Volusia County, Florida, and containing approximately 3,100 acres. This area may be more specifically described and defined by administrative action of the Department of Natural Resources.”

Pursuant to that authority the Department filed a complaint seeking to acquire by eminent domain certain lands lying within the Volusia Recharge Area, as part of a fresh water well field to meet the present and future potable water needs of the area and to preserve a large, relatively undisturbed, fresh water ecosystem of regional importance. Prior to the filing of the complaint Ford had become the owner of, in a manner neither questioned nor material here, and the record title holder of the subsurface oil, gas and mineral rights under the three parcels which the Department sought to condemn. Ford answered the complaint and demanded full compensation for his subsurface rights. After the complaint was filed the Department acquired by warranty deed the surface interests in the two parcels of land owned by Hudson Pulp and Paper Corporation and Rotaler Corporation. Both deeds specifically recited that the conveyance was subject to oil, gas and mineral reservations of record. Ford thereupon filed a motion for summary judgment alleging, inter alia, ownership, as trustee, “of oil, gas and other minerals situate, lying and being on and under the lands described in [the Department’s complaint in eminent domain], said minerals including, but not limited to, water, titanium, phosphate, metals, clay, top soil, muck, peat, humus, and sand” and that his ownership “includes the right of ingress and egress at all times on said lands for the purpose of mining, drilling, exploring, operating and developing said land for the extraction of the aforesaid minerals.” The motion concluded with the prayer that the court “enter a summary judgment of liability, in favor of said respondent and against the petitioner, for the payment of full compensation for the aforesaid interest in land held by said respondent.” The Department then filed and served a notice of voluntary dismissal, dismissing from its complaint and action in eminent domain the two parcels of property which it had acquired from Hudson and Rotaler, as above mentioned. Ford thereupon filed a motion to strike the notice of dismissal, alleging, inter alia, that the Department had “acquired title to the lands designated herein as Parcel No. 1 and Parcel No. 2, excepting the interest in and to said lands held by” Ford and that “to allow a dismissal of this proceeding, as to the interest in said lands of [Ford] is prejudicial to the rights of [Ford] to receive full compensation for the interest in said lands held by [Ford]”, concluding that he (Ford) “is entitled, under the circumstances present in the subject proceedings, for an adjudication of his rights in and to the lands heretofore acquired by the [Department] and designated herein as Parcel No. 1 and Parcel No. 2.”

Acting on said motions, the trial judge granted Ford’s motion for summary judgment and his motion to strike the Department’s notice of dismissal, reciting that “Judgment is hereby entered against [the Department] and in favor of [Ford] as to liability for the payment of full compensation for the taking of the ownership interest of said [Ford] by [the Department] in the lands described in the complaint heretofore filed herein.” The order further recited that jurisdiction was retained for the purpose of empaneling a jury to determine the issue of full compensation as to Ford’s ownership interest. It is from that order that this appeal is taken.

The complaint describes parcel one and alleges the owner to be Hudson Pulp and Paper Corporation subject to “oil, gas and mineral reservations * * * rights of ingress and egress, rents and royalties now vested in Frank A. Ford, Trustee, * * Parcel two is described by legal description, the owner alleged to be Rotaler Corporation, formerly Cousins Investment Company, subject to “oil, gas and mineral reservations * * * rights of ingress and egress and royalties now vested in Frank A. Ford, Trustee, * * * Neither the answer filed by Ford, his motion for summary judgment nor motion to strike the notice of dismissal are under oath, therefore they cannot be given the dignity of an affidavit or sworn statement. There is nothing in the record, other than the bare allegations of the answer and motion for summary judgment, to substantiate Ford’s assertions that he is entitled to oil, gas and other minerals “on” the subject lands nor the “top-soil, muck, peat, humus and sand”. It, is pertinent to note that in his motion for summary judgment Ford did not pray for a judgment of liability for compensation for any interest owned by him and taken or condemned by the Department; but, instead, prayed for compensation for the interest “held” by him. The difference is not a matter of semantics, for there is not one iota of evidence in the record that the Department has, will or intends to condemn or take any interest owned by Ford. Indeed, the record clearly reveals that at the time the summary judgment was entered, and the motion striking the voluntary notice of dismissal was granted, Ford was in the identical position that he was in prior to the passage by the legislature of Chapter 75-271, Florida Statutes and prior to the filing by the Department of this action. The summary judgment was, therefore, premature. If and when the Department takes, abridges or interferes with Ford’s property rights then, unless the Department proceeds by way of eminent domain, Ford has an appropriate remedy by inverse condemnation or, if the invasion of his rights be by tort, such other remedy as the lay may afford. However, until such time as such an event occurs, Ford being in the identical position that he was in prior to the time that the suit was filed, the taxpayers of the State of Florida should not be required to pay.

It is noted that the statute vesting authority for the subject eminent domain action specifically provided that the taking should be in accordance with Chapter 73 of the Florida Statutes. That chapter generally provides the manner of exercising the power of eminent domain, while chapter 74 provides a discretionary means of taking possession and title to lands sought to be condemned by an order of taking prior to entry of final judgment establishing compensation therefor. Under chapter 74, upon payment of a sufficient deposit, title to the lands may be vested in the condemnor. In the case sub judice, however, the condemnation proceedings were pursuant to chapter 73. As a result, no title or interest whatsoever passed to the appellant by condemnation prior to the filing of its notice of dismissal.

Rule 1.420, Fla.R.Civ.P., entitled “Dismissal of Actions”, provides as follows:

“(a) Voluntary Dismissal; Effect Thereof. (1) By Parties. Except in action wherein property has been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court (i) by serving or during trial, by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if such motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim. If a lis pendens has been filed in the action, a notice or stipulation of dismissal under this paragraph shall be recorded and cancels the lis pendens without the necessity of an order of court.” (emphasis added)

In accordance with that rule a plaintiff has the absolute right to voluntarily dismiss an action without an order of court by serving or stating on the record during trial a notice of dismissal at any time before a hearing on a motion for summary judgment, before retirement of the jury, or before submission of a non-jury case to the court for decision. Kubicek v. South Broward Hospital District, 231 So.2d 838 (Fla. 4th DCA 1970); and Meyer v. Contemporary Broadcasting Co., Inc., 207 So.2d 325 (Fla. 4th DCA 1968). Moreover, the trial court has no discretion in granting or denying such a dismissal by the plaintiff.. Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1971).

Said rule has been construed to apply only to voluntary dismissal of entire causes of action, rather than partial dismissal of individual parties or claims based on the same cause, inasmuch as the rule is entitled “Dismissal of Actions”, not “Dismissal of Parties”. Deseret Ranches of Florida, Inc. v. Bowman, 340 So.2d 1232 (Fla. 4th DCA 1976) (dismissal of a count of the complaint), and Shannon v. McBride, 105 So.2d 16 (Fla. 2d DCA 1958) (dismissal of a party). However, neither of those cases was an action in eminent domain and they are distinguishable on that basis. In exercising the power of eminent domain, the condemnor has broad discretion in joining many like parcels to be acquired in one action or in trying them separately, depending on the nature and ownership of each parcel. Consequently, each parcel takes on the character of a separate and distinct cause of action consolidated with others, rather than different counts of the same cause. That view was recognized in Conner v. State Road Dept., 66 So.2d 257 (Fla.1953), in which the Court said, in allowing the voluntary dismissal of a portion of the lands to be condemned, that it was “committed to the doctrine that proceedings for condemnation of private property may be dismissed by the condemnors at any time.” It went on to explain that “any time” meant before compensation is made or possession of the property is taken by the condemnors. (See also 27 Am.Jur.2d Eminent Domain § 455.) To allow otherwise might result in violation or abuse of the principle that a condemning authority cannot take more lands or a greater interest therein than necessary to serve the particular public use for which it is being acquired. Canal Authority v. Miller, 243 So.2d 131 (Fla.1970); Dade County v. Paxson, 270 So.2d 455 (Fla. 3d DCA 1972), and Ball v. City of Tallahassee, 269 So.2d 750 (Fla. 1st DCA 1972), quashed on other grounds, 281 So.2d 333.

As to eminent domain cases generally, it is well-settled that proceedings may be abandoned or dismissed by the condemn- or at any time before the rights of the parties become vested. State Road Dept. v. Zetrouer, 105 Fla. 650, 142 So. 217 (1932); City of Miami Beach v. Cummings, 266 So.2d 122 (Fla. 3d DCA 1972); 27 Am.Jur.2d Eminent Domain § 453. The exercise of that right by the condemnor is not without its commensurate obligations to the landowner: Upon such an occurrence, the landowner is entitled to reasonable attorney’s fees for services rendered or incurred prior to dismissal and for costs of the litigation. Jacksonville Terminal Co. v. Blanshard, 77 Fla. 855, 82 So. 300 (1919), and 85 Fla. 500, 96 So. 286 (1923); DeSoto County v. Highsmith, 60 So.2d 915 (Fla.1952); and Ocala Manufacturing, Ice & Packing Co. v. Canal Authority, 301 So.2d 495 (Fla. 1st DCA 1974).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT HEREWITH.

Ford has filed a motion for attorney’s fees incident to this appeal. Although he is entitled, under the authorities above cited, to reasonable compensation for his attorney incident to the proceedings in the trial court and such costs as are taxable by law, he is not entitled to attorney’s fees nor costs incident to this appeal. That motion is therefore denied.

IT IS SO ORDERED.

SMITH, J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I would affirm the decision of the able trial court granting summary judgment as to liability of appellant for the payment of compensation to appellee Ford. The trial court’s order correctly states:

“The interest in lands acquired by the Petitioner from the Respondents Hudson Pulp & Paper Corporation and Rotaler Corporation, and the specific purpose for acquiring same as authorized by Chapter 75-251, Laws of Florida, is substantially inclusive of and comprises the interest in said land held and owned by the Respondent, Frank A. Ford, as Trustee; that to allow a voluntary dismissal of this proceeding in the face of an objection thereto by said Respondent, is to summarily deprive said Respondent of his statutory right to a jury adjudication as to the sums to be awarded to him as full compensation for his ownership interest in the subject lands.” (emphasis supplied)

I do not agree with the majority view that appellee’s ownership of subsurface mineral rights is unaffected by the transfer of the land from private ownership to the Department of Natural Resources “for use as part of a fresh water wellfield,” and for preservation of “a large, relatively undisturbed fresh water ecosystem with ecological values.” Nor do I agree that appellee be required to wait and see to what extent the Department’s ownership interferes with his property rights before seeking a remedy in the form of inverse condemnation.

I respectfully dissent.

ON MOTION FOR REHEARING

BOYER, Acting Chief Judge.

Appellee, Frank A. Ford, has filed a motion for rehearing directed only to the concluding paragraph of the foregoing opinion wherein we recited that appellee is not entitled to attorney’s fees nor costs incident to appeal.

Upon reexamination of the facts of this case, the avenue by which it reached this court, and the applicable statutory and case law, we conclude that Ford’s petition for rehearing is well founded. We therefore recede from our denial of attorney’s fees and costs incident to this appeal.

F.S. 73.131(2) provides as follows:

“The petitioner shall pay all reasonable costs of the proceedings in the appellate court, including a reasonable attorney’s fee to be assessed by that court, except upon an appeal taken by a defendant in which the judgment of the trial court shall be affirmed.”

The fee authorized by F.S. 73.131(2) is allowed by legislative mandate, not judicial grace, and this court does not have the right to ignore the statute. State Road Department of Florida v. Hancock, 250 So.2d 307, 308 (Fla. 2nd DCA 1971).

Further, appellee Ford is entitled to an attorney’s fee for services rendered by his counsel on appeal in this appellate court notwithstanding that the condemnor, State of Florida Department of Natural Resources, was the successful party on appeal. State Road Department v. Levato, 199 So.2d 714 (Fla.1967). As the Florida Supreme Court in Levato stated:

“The language of the statute is clear and the district court operated within its orbit in allowing compensation to the attorney for the owner in defending the judgment of the lower court even though such appeal resulted in a reversal. The Legislature provided one exception to the rule of payment and that is where an appeal is taken by a defendant in which the judgment of the trial court is affirmed, but this exception does not apply to the facts in this case.” (199 So.2d at page 717)

We adhere to our conclusions as reached in the foregoing opinion on the merits: We recede from our holding with reference to attorney’s fees and costs incident to this appeal. In conformity with the procedures suggested by this court in Smith v. Tallahassee, 198 So.2d 380 (Fla. 1st DCA 1966) and recognized by the Supreme Court of Florida in City of Hallandale v. Chatlos, 236 So.2d 761 (Fla.1970), we further remand to the trial court for determination of the value of attorney’s fees and costs to be fixed incident to appellate proceedings in this case.

IT IS SO ORDERED.

SMITH and BOOTH, JJ., concur.


text:
    Alice M. UTTER, and Charles M. Utter, Appellants, v. JACKSONVILLE UTILITIES MANAGEMENT, INC., and United States Fidelity and Guaranty Insurance Company, Appellees.
    No. II-186.
    District Court of Appeal of Florida, First District.
    Sept. 18, 1978.
    Richard E. Gentry, Jacksonville, for appellants.
    J. Edwin Gay of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellees.
   PER CURIAM.

Appellants contend on this appeal that the trial court erred in dismissing with prejudice their complaint against appellees for injuries Mrs. Utter received when she fell in a hole surrounding a water meter owned and maintained by Jacksonville Utilities. We agree and reverse. The appellees claimed in their motion to dismiss that appellants had failed to allege a duty to maintain the parking lot where the injury occurred. Appellants amended their complaint to allege that appellee had a duty to maintain its utilities so as to prevent injuries to the general public, but “negligently maintained its water meters and water lines, such that a hole surrounded the water meter on the premises.” The amended complaint thus appears to allege a causal connection between appellee’s negligent maintenance of its water meter and the creation or failure to repair a hazardous hole surrounding it. Appellants should have been given the opportunity to prove those allegations. The order is reversed and the case remanded for further proceedings.

SMITH, Acting C. J., and MELVIN and BOOTH, JJ., concur.


author: MELVIN, Judge.

text:
    Maxwell Roy FOREHAND, Appellant, v. Robin J. FOREHAND, Appellee.
    No. JJ-368.
    District Court of Appeal of Florida, First District.
    Sept. 18, 1978.

      L. J. Arnold, III, of Arnold & Wilson, Green Cove Springs, for appellant.
    Myron C. Prevatt, Keystone Heights, for appellee.
   MELVIN, Judge.

Appellant/husband seeks review of a final judgment of dissolution of marriage which awarded to the appellee/wife as a special equity the full and complete ownership of the marital premises. Husband urges that the court erred by failing to recognize his special equity in the marital home.

The marital home of the parties was originally titled in the wife’s name and had been acquired by her prior to the marriage. In connection with obtaining a $6,000 mortgage-loan, the wife transferred title to the marital home to the parties as a tenancy by the entireties. The trial court, in awarding the marital home to the wife, found that no gift was intended by this transfer. This finding by the trial court will not be disturbed. However, the record reveals that during the marriage, the husband utilized monies he received from the sale of the property which he had acquired prior to the marriage to make substantial improvements to the marital home. It is undisputed that the husband contributed $5,117.83 for these improvements.

Based on the record, we conclude the trial court did err by not recognizing the husband’s proven special equity in the marital home to the extent of $5,117.83. Sanders v. Sanders, 362 So.2d 284 (Fla. 1st DCA 1978), Opinion filed June 6, 1978. Further, the final judgment fails to provide that the $6,000 mortgage on the marital home, now titled solely in the wife’s name, should be the wife’s sole obligation.

Accordingly, the cause is reversed and remanded with directions to the trial court to award a special equity in the marital home to the husband in the amount of $5,117.83 but with such provisions as the trial court deems proper in reference to the exclusive and uninterrupted possession of the marital home by the wife and children during their minority or so long as the same is utilized as the place of residence for the children.

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


author: DOWNEY, Chief Judge.

text:
    R. J. RUDD, d/b/a Dr. R. J. Rudd & Associates, Appellant, v. Golden E. ZIMMERLEY, Appellee.
    No. 78-218.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1978.
    Rehearing Denied Nov. 27, 1978.
    J. F. Johnson, Jr., Coral Springs, and John Coniglio, P. A., Wildwood, for appellant.
    Robert Dyer of Roby, O’Neill, Dyer & Bogner, Orlando, for appellee.
   DOWNEY, Chief Judge.

Appellant seeks review of an interlocutory order denying his motion to set aside a default.

It appears from the briefs and appendices that appellee filed a suit for damages against appellant, a non-resident of Florida, on November 16, 1977. Counsel for appel-lee, attempting service upon appellant under the Long Arm Statute, mailed a copy of the summons and complaint to the Secretary of State, which was received by the Secretary’s office on November 18, 1977. Also on November 16, 1977, counsel mailed a copy of the summons and complaint with a cover letter to appellant at his address in California, which was received by appellant on November 18, 1977. By said summons “each defendant [was] required to serve written defenses to said complaint or petition on [plaintiff’s counsel] within 20 days after service of this summons upon you, exclusive of the day of service”. The summons warned that failure to do so would result in a default being entered against the defendant. Thus, appellant was required by this directive to serve his response not later than December 8, 1977.

On November 23, 1977, the Secretary of State acknowledged service of the summons and complaint. Counsel for appellee sent appellant another copy of the complaint, summons and notice of the Secretary of State’s receipt of the- suit papers which appellant received on December 5, 1977. Once again the summons admonished the defendant therein to plead to the complaint within 20 days of service of the summons or suffer a default. Thus, while the initial 20 day period for responding to the complaint was still running counsel for appellee sent appellant another summons advising appellant he had 20 days from December 5,1977, to plead before default would be taken. That period ended December 26, 1977.

However, on December 16, 1977, appellant was served by the Sheriff with yet another copy of the complaint and an alias summons which advised appellant that he must plead thereto within 20 days from service thereof, which period gave appellant until January 5, 1978, to plead.

On January 4,1978, appellee moved for a default which was entered that date by the Clerk. A motion to dismiss was received by the clerk on January 5, 1978, which the clerk returned to appellant advising that a default had been entered January 4, 1978.

On January 13, 1978, appellant filed a motion to set aside the default, stating that appellant had come to Florida on January 4, 1978, to obtain counsel; that counsel had advised him to check with the clerk’s office and to determine the last day he could timely plead and was told by the deputy clerk that the 20 day period ended January 5, 1978. The motion states counsel prepared the motion to dismiss on January 4th and mailed it to the clerk who received it January 5, 1978.

The trial court denied the motion to set aside the default on the grounds that the file showed service of process was perfected under the Florida Long Arm Statute and appellant’s motion failed to set forth “any grounds for ‘excusable neglect or meritorious defense’.”

If appellant’s motion to dismiss had been untimely, it would have been necessary to allege excusable neglect and a meritorious defense in order to set aside the default. Clark v. Roberto’s, Inc., 320 So.2d 870 (Fla. 4th DCA 1975). However, if the period of time to plead is governed by the alias summons served upon him on December 16, 1977, then appellant’s motion to dismiss was timely and the default was premature.

We think the circumstances of this case in the context of the drastic result justify a holding that the appropriate time period for appellant to plead was set forth in the alias summons and that the motion to dismiss was timely filed. Without further belaboring the point, appellant was never delinquent in pleading, inasmuch as he received new instructions regarding pleading before each prior time period expired. Had appellant been a lawyer, perhaps he would have been judicious enough to plead within the first time period, but what are the uninitiated to do when they receive successive instructions giving them new dates within which to plead? We feel at the very least that appellee is estopped by the foregoing conduct to assert a default in pleading by the appellant.

In view of the unusual circumstances of this case we feel the trial court erred in refusing to vacate the default. Accordingly, the order appealed from is Reversed and the cause is remanded to the trial court with directions to vacate the default and for further proceedings.

REVERSED AND REMANDED with directions.

CROSS and ANSTEAD, JJ., concur.


text:
    Gloria F. SMITH, Appellant, v. William F. SMITH, Appellee.
    No. II-119.
    District Court of Appeal of Florida, First District.
    Sept. 27, 1978.

      John P. Welch of Jones & Welch, Pensacola, for appellant.
    George G. Phillips, Pensacola, for appel-lee.
   PER CURIAM.

This is an appeal from an order modifying a prior award of child support. The record reflects that there was no pleading requesting a modification of child support, nor was there any indication that financial information adduced at the hearing to prove arrearages and ability to pay would be considered by the court as a basis for modification. See Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Avery v. Avery, 314 So.2d 198 (Fla. 1st DCA 1975); Williams v. Williams, 272 So.2d 827 (Fla. 1st DCA 1973).

Accordingly, we reverse that provision of the order reducing child support.

Appellant’s request for appellate attorney’s fees is granted. This case is remanded to the trial court for fixing the amount.

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