author: PER CURIAM. ENGLAND, Justice, HATCHETT, Justice, ADKINS, Justice,

text:
    THE FLORIDA BAR. In re AMENDMENT TO the INTEGRATION RULE AND the BYLAWS OF the FLORIDA BAR DUES.
    No. 53726.
    Supreme Court of Florida.
    May 12, 1978.
    The Board of Governors of the Florida Bar, Russell Troutman, President, Winter Park, Robert L. Floyd, President-elect, Miami, Marshall R. Cassedy, Executive Director, and Norman A. Faulkner, Staff Counsel, Tallahassee, for The Florida Bar, petitioner.
    Jay H. Beckerman, Tallahassee, and Charles Friend, Tallahassee, for respondents.
   PER CURIAM.

This matter is before us on petition of The Florida Bar to amend Article VIII of the Integration Rule relating to dues, Article XVII of the Integration Rule relating to the Clients’ Security Fund, and Article XVI of the Bylaws relating to the Clients’ Security Fund. The Bar requests that this Court amend Article VIII by increasing the maximum amount of annual dues which The Florida Bar is authorized to set from $75.00 to $125.00 per year and amend Article XVII by increasing the amount which may be allocated from the annual dues of members of The Florida Bar to the Clients’ Security Fund from $10.00 to $15.00.

Petitioner contends that an increase in dues is essential to adequately fund the disciplinary program of the Bar since the dramatic increase in the number of Florida lawyers and the effect of inflation have severely taxed the ability of the Bar, in the area of discipline, to meet its obligations to the public and to the legal profession with current revenues. Under the current budget, petitioner submits, the disciplinary process of the Bar is unable to expeditiously process grievances, while under the recommended increase in dues, the grievance process would be budgeted an increase of approximately 130% over the previous budget, which would permit much speedier disposition of grievances. The Bar cites the report of the Supreme Court Special Committee on Lawyer Disciplinary Procedures for the recognition by the Committee of the need for increased funding for the disciplinary program. The Chairman of the Committee, in his letter submitting the report of the Committee, stated:

If our recommendations are accepted, The Florida Bar staff will have to be expanded. We are mindful that this will require the expenditure of additional money and that an increase in income to the Bar will have to be provided. We do not apologize for this fact, however, because the recommendations are deemed to be highly desirable and the cost involved will be money well spent in developing a better system and fostering increased confidence in the process.

Petitioner also contends that additional funding of the Clients’ Security Fund is necessary to continue a viable program of reimbursing clients. It says that the present appropriation of $5.00 per lawyer per year is not sufficient to meet the needs of this fund.

Petitioner specifies the other areas of Bar activity which will benefit from the increase in dues, including membership records, public affairs and lawyer information services. It alleges that increases in the funding of these departments will result in greater service by the Bar to its members.

Due notice was published in The Florida Bar News, and the petition was set for oral argument. All interested parties were given an opportunity to be heard. Having been fully advised in this matter, we find that The Florida Bar has made an adequate showing for increasing the maximum dues to be charged from $75.00 to $125.00. However, any increase in dues must be authorized by the membership of The Florida Bar at its annual meeting. The next meeting of the membership will be on June 16,1978, at the 1978 annual convention.

In order to be able to exercise his or her right to vote for or against the proposed increase in bar dues, a member of the Bar must be physically present at the Bar convention meeting. At oral argument, opponents of the dues increase alleged that to attend the Bar convention a member of the Bar must pay a registration fee of $55.00 and that, in effect, the payment of $55.00 becomes a prerequisite to a member of the Bar being permitted to vote. If such a prerequisite does, in fact, exist, we find it to be unreasonable and hold that members of the Bar should be- given an opportunity to vote on any question at the business meeting without payment of a convention registration fee. This holding, however, does not require that Bar members who have not paid the registration fee be allowed to participate in other convention activities. We hereby direct the Bar to devise a method by which members of the Bar may attend the business meeting at the convention to vote on the increase, and other matters of Bar business there considered, without payment of the $55.00 convention registration fee.

The following amendments to the Integration Rule and the Bylaws proposed by The Florida Bar are, therefore, approved:

Article VIII
DUES
1. On or before July 1, 1978.4976, and on or before July 1 of each year thereafter, every active member of The Florida Bar shall pay annual dues to The Florida Bar in such an amount as shall be set at an annual meeting, and shall also file with the executive director a statement setting forth his business and residential addresses and any other information that may be required by the Board of Governors, provided that at no annual meeting shall the dues be fixed at more than S125.0Q per annum.
Article XVII
CLIENTS’ SECURITY FUND
2. The Board of Governors may allocate from the annual dues of the members of The Florida Bar not more than $15.00 $-10.00 per member per annum to a Clients’ Security Fund.
Bylaws
Article XVI
CLIENTS’ SECURITY FUND
3. Administration and Funding:
The fund shall be administered in accordance with regulations to be adopted by the Board. The committee shall have such duties in the administration of the fund as shall from time to time be prescribed by the Board. The Board shall allocate to the fund from the annual dues of the members of the Bar not more than $15 $10 per member per annum, and the Board is authorized to accept for the fund any contribution or gift offered to it for use in furtherance of the purposes of the fund.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG and ALDERMAN, JJ., concur.

ENGLAND, J., concurs with an opinion, with which OVERTON, C. J., and SUND-BERG, J., concur.

HATCHETT, J., specially concurs with an opinion.

ADKINS, J., dissents with an opinion.

ENGLAND, Justice,

concurring.

The attorneys who are here protesting the Bar’s proposed $50 dues increase have focused our attention on an issue critical to this controversy but infrequently discussed in public — whether The Florida Bar should function under a republican form of government with elected representatives, as is presently the case, or whether it should be operated under the autocratic authority of this Court. This issue underlies the pleas of the protestants that we reject the recommendation of the elected board of the Bar for a variety of policy and evidentiary reasons. I concur in approving the board’s recommendation because I believe the decision on the fundamental issue of governance was made in years past, and the protestants suggest no compelling reason why autocracy should now supplant democracy in the Bar.

The concerns of the protestants with “fat in the budget” of The Florida Bar, and with a misallocation of priorities, are arguments properly addressed to the board of governors through every Florida lawyer’s elected representatives in the judicial circuits of the state. We have provided the mechanism to elect board members and we established elaborate procedures to assure openness and responsibility in the budget preparation process. Under our rules, a committee of The Florida Bar is obliged to prepare a tentative budget for the forthcoming fiscal year which is made available to all members of The Florida Bar, by publication, for commentary and criticism. The budget committee is required to receive and hear all comments at a public meeting, following which a proposed budget is prepared for submission to the full board. The proposed budget is then published in the Bar Journal, together with notice of a meeting to be held on a specific date to consider and adopt a final budget.

If members of The Florida Bar do not avail themselves of the processes we have created to voice their concerns with the level and direction of Bar expenditures, or if having done so their positions are rejected, this Court cannot be expected to override the deliberative judgment of the board based solely on the entreaties of those aggrieved. Members’ supervision of the Bar is tantamount to the superintendence of the people over their legislative and congressional delegates. If those delegates do not reflect the views of the majority of the governed, the electoral process is essentially the only available means by which to effect change.

The role of the Supreme Court in the budget process must be limited not only by the procedures we have created for direct control by the membership of the Bar, but as well by the practicalities of Bar governance. Although we must approve any increase in the dues “cap”, we have delegated to the board, and to the membership of the Bar through its ratification or rejection of any dues increase, the responsibility to adopt a budget that is suitable for the priorities which the organized Bar deems essential to the discharge of its assigned duties. Our responsibility when confronted with a dues increase, it seems to me, is limited to assuring that the purposes proposed by the board for new monies are within the scope of the Bar’s responsibility as the agent of this Court to improve the administration of justice in Florida. Clearly, the board’s objectives with respect to the $50 dues increase which is now sought are within that ambit — indeed, 95% of the dues increase will be allocated to a responsibility which this Court has persistently urged the Bar to undertake more vigorously and more expeditiously. Our only other role with respect to the financial operations of the Bar is a post-expenditure audit review (a function we share with the membership at large), to assure that the .funds which were budgeted have been spent and accounted for properly. Beyond these two limited functions, the organized Bar in Florida is largely self-governing in financial matters, as fully as a democratic society with a republican form of government.

The members of the board were well aware of the dissatisfaction which their proposed dues increase would engender. They now face voter response to the same extent that Florida legislators face the response of the voters when they adopt a tax increase. That is extraneous to this proceeding, however. Nothing brought to us by the protestants suggests that the board acted without regard to the interests of the public and its membership, or that it.proceeded in violation of the rules of procedure established for the budget process. Mere disagreement with the details and breadth of the board’s budget cannot be a basis for Court intercession. More significantly, any dissatisfaction with the dues increase itself can be expressed directly and unequivocally by the vote of the membership at the annual convention.

For these reasons, I join, in approving a $50 increase in the dues “cap”, subject to membership approval or rejection at The Florida Bar Convention under the revised voting procedures prescribed in the majority opinion.

OVERTON, C. J., and SUNDBERG, J., concur.

HATCHETT, Justice,

specially concurring.

I join the majority in authorizing the membership of The Florida Bar to vote on whether or not to impose a dues increase from $75 to a maximum of $125 per year by amending Article XVII of the Integration Rule.

For the past two and a half years, if not longer, this court has increasingly criticized The Florida Bar regarding disciplinary procedures and delays in the handling of discipline cases against lawyers. In fact, this court created a committee, known as the Karl Committee, to study the grievance procedure and to make recommendations for change. That report has been filed with the court and will soon be reviewed for adoption or rejection. While it is yet unclear the action that the court will take on this report, it is clear that additional funds will be needed to streamline grievance procedures and assure to the accused lawyer a speedy determination of the charges. Ninety five percent of the requested dues increase is allocated for this important aspect of the Bar’s program. Central to the Bar’s existence is the duty to discipline its members. When the Bar is no longer able to carry out this function, its reason for existence will be lost.

While I generally agree with Justice England’s analysis of the relationship between this court and the Bar, I differ in one important respect. This court should have two different standards of review of Bar recommendations, depending upon the nature of proposed action. The Bar fulfills two important and separate functions. First, it exists as an arm of this court, administering the policies governing the practice of law in this state, which this court has determined are consistent with the proper administration of justice and in the best interests of our citizens. Such matters include admissions and discipline policies. In this area, recommendations of the Board of Governors are advisory only, and do not carry with them any presumption of correctness. Recommendations of The Florida Bar in these areas will be followed only if they persuade the court that such policies will best fulfill the important state interest sought to be achieved.

Secondly, the Bar is the representative organization for all attorneys admitted to practice in this state. In this regard, the Bar provides additional services to these attorneys, separate from those involving the strict regulation of the practice of law. The court should have a lesser role in approving modifying, or rejecting Bar policies with regards to these activities. The appropriateness of such policies and the question of whether such activities should be paid out of dues should be matters determined by the general Bar membership, through its elected representatives. This court should review the policy positions taken by the Board of Governors to determine whether the notice and hearing procedures taken by the Bar with regard to these proposals have complied with due process standards or have violated other constitutional rights of the membership. It is not the court’s function to review whether policy positions are “good” or efficiently administered. If attorneys disagree with certain policies taken by the Board, then recourse should be through “representative democracy” as outlined in Justice England’s concurrence.

No due process or constitutional objections were raised by the opponents to the dues increase. The appropriateness of the increase should be determined by the Bar membership. Although Justice Adkins may be correct to the extent that he recommends a general ballot as the best means to determine the Bar membership’s attitudes on this issue, that question has not been properly raised, and therefore should not be determined until such later time as a proper petition and briefs on this matter have been presented to the court.

ADKINS, Justice,

dissenting.

By a two-thirds increase in bar dues the receipts of the Florida Bar will rise from $5,065,000.00 to $6,178,100.00. The Bar is still a young organization, but the increase in dues and expenditures has caused the budget to assume a middle-age spread— that is, certain areas in the Florida Bar program are not in proper proportion to its size.

The majority of practicing lawyers never approved integration, only a majority of those participating. The court pointed this out in Petition of Florida State Bar Association, 40 So.2d 902 (Fla.1949) by saying:

“Of the 2,700 ballots mailed to the members of the bar, 1,631 were voted and returned. Of the returned ballots 1,131 voted in favor of integration and 500 voted against integration. The opponents of bar integration challenge the number 2,700 as being an accurate count of the practicing attorneys in the State but our investigation reveals no support for this challenge. We are of the view that the referendum was fairly conducted.”

The court then compared the proposed program with a similar one in California. In discussing the latter program, the court said:

“To support such a program the integrated bar of California has a membership of 15,000 and a budget of $250,000 per an-num which is of course out of the reach of the Florida Bar. It is detailed here for the purpose of giving the objectives of bar integration. Its end result is a stronger and better informed bar and it has so enlarged the confidence of the public in the integrated bar of California, that its aid is sought for recommendation to judicial appointments and it is called on frequently to sponsor movements for the common good. Whatever it fosters it has the advantage of being able to call to its aid one hundred per cent of its members.”

This two-thirds increase in bar dues is a major change in members’ obligations and essentially a judgment upon the proper role of the Florida Bar. Fifty dollars is a notable sum to add to the annual expenses of many attorneys. Despite some well-publicized, well-paid attorneys, many lawyers, such as those employed by the state, earn only a moderate salary. Fifty dollars is a major sum to them.

The Bar, by its own admission, needs a dues increase to revise disciplinary proceedings while maintaining its wide-flung activities in lobbying, CLE, large buildings, consumer information dissemination and other areas. Only because of the combined costs of the disciplinary proceeding changes and continuance of the other activities does the Bar need the fifty-dollar dues increase. By reducing spending in either area, with, of course, a concomitant reduction in activity, the Bar could subsist on the present dues or survive with a much less dramatic increase.

Discipline is the main justification for the Bar’s existence and its most sacred duty. Lawyers and courts, and through them the Bar, hold their unique position solely because they -have solemnly promised to regulate their own behavior in the public interest and police their own ranks more closely then even the most assiduous layman could or would. The Bar’s disciplinary and ethical role should never be abandoned.

But the Bar’s other more peripheral activities may well be abandoned, if they cannot be financed under a reasonable dues structure. Many activities such as the Bar’s lobbying and public information services clearly are far removed from disciplining and regulating attorneys. Perhaps some activities should not even be funded by dues mandated by this court. An attorney who feels that way can more easily and effectively express his opinion by voting against a dues increase as by writing dozens of letters to his representative on the Board of Governors. The decision to fund is as major a policy decision as any other. And this fundamental policy decision should be submitted to the vote of all the Bar’s members, not just those who attend one meeting.

The court is not pontificating on constitutional law nor laying down precedents to guide posterity. It is acting as an administrator. The court administers a powerful regulatory agency whose funding is required of all who wish to practice law in Florida. Like any administrator the court should be fair. It should do its best to achieve its goal while not unfairly restricting or burdening those regulated. I believe that a major financial and policy decision made by less than the entire Bar membership is fundamentally unfair.

A look at the restrictions placed by law and custom on all other American forms of self-governing communities convinces me that this court should exercise more restrictive supervision. The Legislature is restricted by Florida’s constitution. The right to amend the constitution is available to the people if their representative body steps too far out of line. The public has a right to be heard before any state agency can promulgate rules which affect them. Section 120.54, Florida Statutes (1977). Shareholders in corporations are guaranteed that at least a majority of them must agree with their directors before major decisions such as amending the Articles of Incorporation are made. Section 607.-181(l)(c), Florida Statutes (1977). Even fraternities or children’s informal neighborhood clubs usually have some sort of constitution and provide for group approval of dues increases and changes in the constitution.

Members of the Florida Bar do not have even these elemental democratic controls over their governors. In the absence of this court’s supervision, there is little restriction on precipitous actions by the Board of Governors. Unlike almost all other representative governing bodies the Bar is not restricted by the document creating it. Not one of this court’s grants' of power to the Bar prohibit it from any action. The Florida Constitution and the United States Constitution apply to the Bar. But even today courts hesitate to strictly apply constitutional standards to an integrated bar. Since the Bar is fettered only by this court, the court should be all the more certain that it reserves some power over fundamental decisions for the lawyers.

The right to vote at meetings during the Bar Convention also lacks substance. The Bar and the majority graciously allow attorneys to vote without charging a $55.00 poll tax. But impediments to voting in the meeting remain. An attorney must find the time to travel to the convention site, must make the trip, and must pay the not insignificant costs of the journey. The convention site this year is in Hollywood, a place very accessible, very delightful, but not very near to the attorneys in Pensacola.

An attorney should not have to go to such troubles and expenses to vote on a major issue. This court should establish some reasonable manner for the Bar membership as a whole to directly control the ultimate decision on a dues increase. Voting by mail as in the Board of Governor’s election would be best. Proxy voting at the very least should be allowed. Without these changes the Bar is not a democracy or a republic. It is a plutocracy which cannot be made to look after the best interest of its members or the general public.

Also, we should re-examine the necessity of out-of-state attorneys, judges and retired judges paying the same amount of dues as the local practicing attorney. Although we have determined that dues are not taxes (Petition of Florida Bar Assoc., supra,) they are in the same posture as special assessments, the amount of which should be determined by the benefits received. The practicing attorney is in the best position to make this judgment and should, by vote, be given an opportunity to express his views. Out of $5,000,000, this postage should be a minor item. In fact the ballot could be placed upon one of the myriad advertising folders which deluge the offices of attorneys.

      . This Court has not yet considered the report of the Supreme Court Special Committee on Lawyer Disciplinary Procedures, and reference to' this letter does not imply approval of that report at this time.

      . See Fla.Bar Integr. Rule, art. III.

      . Fla.Bar Integr. Rule, art. IX, § 2.

      . Id. at § 3.

      . Id. at § 4.

      . Id. at §§ 5, 6.

      . The Florida Bar v. Papy, 358 So.2d 4, No. 50,810 (Fla. opin. filed March 2, 1978); The Florida Bar v. Randolph, 238 So.2d 635 (Fla.1970); The Florida Bar v. King, 174 So.2d 398 (Fla.1965); State ex rel. The Florida Bar v. Oxford, 127 So.2d 107 (Fla.1960).

      . Fla.Bar Integr. Rule, art. IX, § 12.

      . It is against the possibility of a rejected budget that we require an alternative budget to be developed at the present level of Bar income. See Fla.Bar Integr. Rule, art. IX, § 7.


source: Caselaw Access Project

author: OTT, Judge.

license: Public Domain

text:
    TYMBER SKAN PROPERTIES LTD., Donald L. Myrick and Betty L. Myrick, Appellants, v. LUTHERAN MUTUAL LIFE INSURANCE COMPANY OF WAVERLY, IOWA, an Iowa Corporation, Appellee.
    No. 77-385.
    District Court of Appeal of Florida, Second District.
    April 12, 1978.
    As Modified On Denial of Rehearing May 24, 1978.

      Harold S. Wilson, Clearwater, for appellants.
    Leslie D. Franklin and David E. DeSerio, St. Petersburg, for appellee.
   OTT, Judge.

This appeal is from a post final summary judgment order of the trial court in a mortgage foreclosure action. We reverse in part and affirm in part as more specifically appears below.

In due course final summary judgment was entered for the mortgagee (ap-pellee). There was no appeal therefrom nor were any timely and appropriate postjudgment motions filed. The final summary judgment was therefore conclusive as to all matters involved in the litigation except as to those matters properly and expressly reserved therein for subsequent determination. All of the parties are limited or bound by the terms of the final judgment both as to what is finally adjudicated and as to that which was or could be the subject of postjudgment consideration. The final judgment cannot be otherwise supplemented or modified by either party at this point.

The property foreclosed upon consisted of a total of 57 rental units and certain furnishings, appliances, fixtures and equipment. The indebtedness was secured by a real property mortgage, a security agreement and financing statement and an assignment of leases and rents. A receiver was appointed to manage and operate the rental property pending the foreclosure proceedings.

The dates and actions pertinent to this appeal are as follows:

1. November 19, 1976 Final Summary Judgment of foreclosure was entered.
2. November 25,1976 Notice of Sale was published.
3. December 13, 1976 The clerk’s sale was held and clerk’s certificate of sale was filed.
4. January 6,1977 The clerk filed his Certificate of Title.
5. January 14,1977 Application filed for approval of receiver’s accounting, for direction . as to disbursement of remaining funds and for discharge of the receiver and his surety.
6. January 26,1977 Hearing was held on receiver’s application.
7. January 81,1977 The order on the receiver’s application was entered.
8. March 1,1977 Notice of appeal from order of January 31,1977.

The Notice of Sale and Certificate of Title described the property to be sold as follows:

Block “N”, Re-subdivision of RICHEY BAY PARK, as shown on plat recorded in Plat Book 4, page 43, Public Records of Pasco County, Florida.

This is conclusive as to the property sold at the judicial sale and ultimately titled in the mortgagee (purchaser at the sale). The mortgagee therefore secured no ownership interest in the rentals except those accruing subsequent to securing the title to the rental property.

The mortgagee became the purchaser at the foreclosure sale upon its bid in the exact amount of the mortgage debt fixed in the summary final judgment, namely, $714,-940.84. The mortgagee also filed its certificate of payment of the clerk’s fee for sale and publication costs.

Approximately eight days after the Certificate of Title was filed the receiver filed his final accounting (for the period ending December 31, 1976) and applied for discharge of himself and his surety. This accounting was subsequently supplemented to cover the period from January 1, 1977 through January 6, 1977.

After notice to all parties and a hearing the court entered an order dated January 31, 1977 approving the receiver’s final accounting (as supplemented), directing the receiver to turn over to the mortgagee (purchaser of the mortgaged real property) the net proceeds of the receivership remaining in his hands and discharging the receiver and his surety.

The mortgagor complains of this post final summary judgment order in the following particulars:

(1)The approval of certain disbursements and receipts in the receiver’s accounting as follows:

a. receiver’s fees in the amount of $2,500.00
b. insurance premium in the amount of $2,716.00
c. accrued but unpaid sewage fees in the amount of $2,990.52
d. certain bills received and actually paid by the receiver between December 31, 1976 and January 6, 1977 which totaled $2,045.96
e. the inclusion (in the receiver’s receipts) of only 20% of the January rents as rental receipts of the receivership — in other words — the proration of January rental receipts to cover only the period January 1, 1977 thru January 6, 1977.

(2)In ordering the receiver to pay the net proceeds of the receivership over to the purchaser at the mortgage sale.

With reference to (l)(a) and (b) it was established at the hearing that these items were duplications of specific items allowed to the mortgagee in the final judgment as part of the secured indebtedness fixed therein. It was not error to allow or approve these disbursements from the receiver’s funds since the mortgagee, although having claimed and been allowed these items as part of the secured indebtedness fixed in the final judgment and its bid at the sale of real property, had not actually paid them out. It was error, however, not to require the receiver’s account to be reimbursed therefor by the mortgagee.

With reference to (c) a close question is presented. This amount was listed as “[t]o be placed in escrow for payment of sewer fees accrued during the term of the Receivership.” In other words, no actual payment of these charges had been made by the receiver. According to the receiver’s statement of income and expenses for the period December 31, 1976 through January 6, 1977 “[t]he charge for sewer service has not been paid due to problems with the Receiver of the sewer plant. The sewer charges may be less, but should be no more than the listed escrow monies.” No showing was made at the hearing that sewer charges were improperly or unnecessarily incurred by the receiver in the operation of the rental property nor was there any showing that the sewer charges in question were not incurred during the period of the receiver’s control. Consequently, it is our opinion, and we so hold, that no error has been made to appear in this action of the trial court. Upon remand, however, the trial court should direct that such sum be held in the registry of the court pending the determination of the actual amount payable for such services during the term of the receivership and subject to its order of disbursement thereof accordingly.

The only attack on items (1)(d) and (e) at the hearing was predicated upon the mortgagor’s position that the receiver was not entitled to pay any bill in the period from January 1 to January 6 and, as to rentals, that the mortgagor was entitled to the benefit of all rentals actually in the hands of the receiver at the time the receivership terminated. In paragraph 12 of the final judgment the trial court specifically directed that “the Receiver’s term of full control shall not extend beyond the filing of the Certificate of Title.” The Certificate of Title was made and filed on January 6, 1977. Mortgaged property remains the property of the mortgagor until duly and finally divested of the ownership thereof— normally the order confirming the sale of the mortgaged property but in this case, the date of the clerk’s Certificate of Title, January 6,1977. See Shavers v. Duval County, 73 So.2d 684, 687 (Fla.1954); Hoffman v. Semet, 316 So.2d 649, 651 (Fla. 4th DCA 1975); 22 Fla.Jur., Mortgages §§ 107, 108 (1958). All legitimate expenses of the receivership up to January 6,1977 are properly allowed. We hold that no error has been made to appear as to the trial court’s approval of these two items.

As stated above, the mortgagee acquired no ownership interest in the real property or the rentals derived therefrom prior to acquiring ownership of the real property on January 6, 1977. The trial court therefore erred in ordering that any remaining proceeds of the receivership be paid over to the purchaser at the foreclosure sale, except to the extent applicable to the secured indebtedness as hereafter provided. As previously noted, the real property together with the improvements thereon was all that was ordered to be sold and noticed for sale at the public sale. The assignment of the rentals was only as further security for the payment of the secured indebtedness. The final judgment detailed the items comprising the secured indebtedness and fixed the same at $714,-940.84 at that time. It further provided that interest would accrue after the date of the final judgment at the rate of 6% per annum. In paragraph 8 of the final judgment the court directed that the mortgagee’s secured indebtedness shall be the sum fixed in the judgment ($714,940.84) “plus interest hereafter accruing . . . and costs advanced per paragraph 7 hereof . .” (Paragraph 7 of the final judgment specifically delineated these additional costs as “the cost of publishing the Notice of Sale and the Clerk’s fee of $15.00 for making the sale . . . .”) Paragraph 9 of the final judgment then provided that the total bid of the mortgagee (assuming it was high bidder) would be credited against the total indebtedness “secured by said mortgage, financing statement, assignment of leases and other documents . . . .” We hold that the total secured indebtedness must be calculated pursuant to the above provisions of the final judgment and the actual bid of the mortgagee then credited against such total secured indebtedness. If there is any deficiency remaining it is payable out of the proceeds, if any, remaining in the receiver’s account pursuant to the reservation of jurisdiction by the trial court as to the receiver’s receipts, disbursements and disposition of any remaining funds.

We point out that in paragraph 12 of the final judgment the trial court also reserved jurisdiction to determine what fees, if any, should be allowed the attorneys for the receiver. So far as the record reveals this still remains unresolved but could be properly allowed by the trial court out of the receiver’s funds.

Two other items should be disposed of. Appellee/mortgagee asserts that it is entitled to be paid the costs of surtax and documentary stamps on the deed in the amount of $2,931.50 and to attorney’s fees for its attorney in the amount of $4,000 for services performed after the date of judgment. Apparently the payment of these items was to come out of the funds in the hands of the receiver.

The final judgment is silent as to who pays the documentary stamps if the mortgagee is the successful bidder and clearly they are not adjudicated as a part of the secured indebtedness. Appellee has failed to cite any authority to this court that the purchaser is entitled to reimbursement for documentary stamps in the absence of such a provision in the final judgment. The final judgment specifically directs that any successful bidder other than the mortgagee must pay the documentary stamps in addition to his bid. It would appear that there is no reason why the mortgagee should be treated differently than any other bidder. Thus, the mortgagor must prevail on this point.

With reference to the mortgagee’s attorney’s fees the final judgment provided “Attorneys’ fees for Plaintiff’s attorneys [$25,000.00] which said sum this Court, on the basis of affidavits and testimony presented in open court, finds and determines to be reasonable and just.” However, with reference to the period at issue— namely, the period from the date of judgment to the date of the hearing on the receiver’s fees — there was no provision in the final judgment. Since no jurisdiction was retained for such purpose the mortgagor must prevail on this point.

With reference to the rights of the Jem Aluminum Products, Inc. we affirm the trial court’s determination that its lien was against the real property only, was inferior to the lien of Lutheran Mutual Life Insurance Company and was wiped out by the foreclosure of the superior lien. Accordingly, Jem Aluminum’s appeal is not well taken.

The order of the trial court of January 31,1977 is set aside and the cause remanded for further proceedings and the entry of an order consistent with this opinion.

BOARDMAN, C. J., and SCHEB, J., concur.


author: MILLS, Acting Chief Judge. ERVIN, Judge,

text:
    CITY OF WINTER HAVEN, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Teamsters Local Union No. 444, Respondents.
    No. FF-81.
    District Court of Appeal of Florida, First District.
    May 9, 1978.
    Rehearing Denied June 21, 1978.

      Lawrence Braisted, Winter Haven, Donald T. Ryce, Jr. of Hogg, Allen, Ryce & Norton, Tampa, for petitioner.
    William E. Powers, Jr., Tallahassee, Thomas J. Pilacek of Pilacek & Swindle, Orlando, for respondents.
   MILLS, Acting Chief Judge.

The City of Winter Haven (City) petitions for review of a PERC order finding it guilty of an unfair labor practice and ordering it to sign and give effect to a certain collective bargaining agreement which it had submitted to the Teamsters Local # 444 (Union).

The Union and the City reached an impasse on 28 May 1975. On 29 July 1975 a special master was appointed, and on 15 September 1975 the special master issued his report which recommended, among other things, that the employees in the unit (firefighters) receive a minimum salary of $8,098.00, “plus the average salary increase in the current bargaining period for Cities in the local operating area. . . . ”

On 18 September 1975, the City Commission met in special session. Mr. Paul Poth-in, the City’s labor consultant, reported that he had reviewed the special master’s report with the City Attorney and the City Manager and that:

. .it appears as though the recommendations of the Special Master are consistent with the city’s last and best offer to the employees. Therefore, my recommendation and that of the City Manager would be that the City Manager be directed to offer the Union the contract proposal if, in fact, they do ratify what our offer was.”

Mr. Pothin added that if the Union did not ratify he recommended:

. . that those benefits be implemented unilaterally by the administration without contract so that the employees will not be deprived of benefits that we’ve already stated that we feel are proper.”

The benefits were described as holidays, raising of the minimum pay, “. . . and those other elements that are contained in the award”. Mr. Pothin’s recommendation was approved by the Commission.

On 19 September 1975, the City Manager informed the Chairman of PERC by letter with a copy to the Union, that the City Commission had adopted the findings of the special master; that the Union had been furnished certain contractual provisions to be added to the provisions tentatively agreed upon and that “subsequent to ratification by the local membership, the City agrees to enter into and execute the agreement in whole”. On the same date a collective bargaining agreement containing the following provision was given to the Union:

“(a) No employees covered by this agreement shall be paid at a rate of less than $8,098.00 per annum.
(b) Further, the City agrees to pay the employees covered by this agreement the ‘average salary increase’ granted for cities in the ‘local operating area’ effective October 1, 1975.”

On 25 September the Union received a letter or letters from the City Manager which stated that there had been a misunderstanding and that the City was rejecting the special master’s award regarding wages and the Union should delete Paragraph (b) from the tentative agreement. Later on that same day, the Union ratified the agreement with Paragraph (b) still included. On 26 September 1975, the Union notified the City of the ratification and thereafter presented the City Manager with a copy of the agreement for his signature. The City Manager refused to sign the agreement because of the wage provision.

The Union filed an unfair labor practice charge, PERC issued a complaint, and a hearing before a hearing officer was held on 4 March 1976. On 6 July 1976, the hearing officer issued his recommended order concluding that the City had committed an unfair labor practice and exceptions were filed by the City. PERC held a hearing on 3 August 1976, and on 25 January 1977 issued its decision and order which affirmed the hearing officer’s rulings on motions and adopted his findings of facts and recommendations.

The major issue raised in this proceeding is whether the correspondence from the City Manager to the Union on 25 September effectively rejected the special master’s report and revoked the agreement submitted to the Union. PERC concluded that because “. . . there is no evidence in the record that would indicate that the City Commission authorized the City Manager to revoke its acceptance of the special master’s recommendation”, the revocation was ineffective.

The chief executive officer of a public employer is required by law to bargain collectively in good faith with the representative of the employee organization and to consult with, and attempt to represent the views of, the legislative body of the public employer. Section 447.309(1), Florida Statutes (1975). Any agreement reached between the chief executive officer and the employees’ bargaining agent must be ratified by the legislative body of the public employer at a regularly scheduled meeting before it becomes binding on the employer. Section 447.309(1). If the legislative body does not ratify the tentative agreement, or if the majority of the employees do not ratify, the agreement is returned to the chief executive officer and the employee organization for further negotiations. Section 447.309(4).

If the impasse occurs, a special master may be appointed to define the areas in dispute, to determine facts, and to render a decision on unresolved issues. After hearings are held the recommended decision of the special master is sent to the representatives of the parties and the “. . . decision shall be discussed further by the parties in negotiations and shall be deemed approved by both parties unless either party, by formal action, rejects the decision within 15 calendar days of the transmission of the decision.” Section 447.403(2)(b). If the decision of the special master is rejected by either of the parties, the chief executive officer submits to the legislative body a copy of the decision and his recommendations for settling the dispute. The employee organization may also submit recommendations. The legislative body then conducts a public hearing at which the parties explain their positions and thereafter the legislative body takes such action as is in the public interest. Section 447.403(2)(c).

Sections 447.309 and 447.403 clearly delineate the specific functions of the chief executive officer and the legislative body throughout the course of the collective bargaining process. As provided in Section 447.309(1), the chief executive officer is to consult with and attempt to represent the views of the legislative body; however, the authority of the chief executive officer to represent the public employer during negotiations is derived from the Act and is not dependent upon a grant of authority from the legislative body of the public employer. Further, the discussions and consultations of the chief executive officer with the legislative body relative to collective bargaining are exempt from Section 286.011 and need not be held in the “sunshine”. Section 447.-605(1), Florida Statutes (1975). Therefore, PERC’s conclusion that the rejection of the special master’s decision was ineffective because there was nothing in the record to show that the City Commission had authorized the City Manager to reject the decision is unfounded.

PERC also contends that the rejection was ineffective because the 18 September meeting constituted the final legislative action contemplated by Section 447.-403(2)(c)(4) and therefore was binding. This contention has no merit. The provisions of Section 447.403(2)(c) are applicable only after the special master’s decision has been rejected by one of the parties. The special master’s decision was not rejected until 25 September.

Finally, PERC argues that the special master’s report was not rejected by “formal action” as required by Section 447.-403(2)(b), contending that formal action within the context of Section 447.403(2) involves ratification at a meeting of the legislative body. However, PERC’s own rules rebut its argument. Rule 8H-5.13, F.A.C., clearly indicates that the formal action required by Section 447.403(2)(b) is' accomplished “. . by serving a written statement upon all other parties, within fifteen (15) calendar days from the date said recommended decision was transmitted to the parties, specifically indicating which particular recommendations are being rejected.” In this case the City Manager gave the Union a written statement within the requisite time period stating specifically which recommendation was being rejected. Therefore, we hold that the rejection of the special master’s decision was valid and the City was not bound by the recommended decision. However, this holding does not end our inquiry.

After the special master’s decision was received, the City drafted an agreement, which adopted the recommendations of the special master, and forwarded it to the Union which subsequently ratified it. PERC apparently found that the City’s revocation of part of the agreement prior to the Union’s ratification was invalid and found that the City had committed an unfair labor practice by refusing to sign the agreement as originally offered to the Union.

Section 447.403, Florida Statutes, describes the procedure to be followed in resolving impasses; however, the fact that impasse resolution procedures have been put into effect does not preclude the parties from attempting to reach an agreement at the negotiating table pursuant to Section 447.309. Section 447.309(1) provides:

“Any collective bargaining agreement reached by the negotiators shall be reduced to writing, and such agreement shall be signed by the chief executive officer and the bargaining agent. Any agreement signed by the chief executive officer and the bargaining agent shall not be binding on the public employer until such agreement has been ratified at a regularly scheduled meeting of the public employer and by public employees who are members of the , bargaining unit . . .."

We do not find any evidence in the record, and PERC did not find, that the Union negotiators had agreed to the terms of the tentative agreement offered by the City. Obviously the draft agreement was not.an “agreement reached by the negotiators”, and the City Manager had no obligation to sign it. If the Union’s bargaining agent had agreed to the City’s offer prior to the City’s revocation of the offer, then the refusal of the City Manager to sign such agreement clearly would be an unfair labor practice. However, that is not what occurred in this case, and PERC’s conclusion that the City had committed an unfair labor practice by refusing to sign the agreement is erroneous.

We therefore hold that the City’s rejection of the special master’s decision was valid and that the City did not commit an unfair labor practice by refusing to sign the agreement as ratified by the Union.

REVERSED.

SMITH, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissents.

The minutes and transcript of the September 18, 1975 meeting of the City Commission make clear the findings, opinions and awards of the special master were adopted. A week later, the City Manager stated in his letter the “implementation of the findings of [the special master] relative to wage increases is not accepted by the City.”

The question then is whether the city manager can, in the absence of any proof of the offer’s revocation by the City, override the unanimous vote of the legislative body, the City Commission, which adopted the special master’s report. I agree with PERC that he cannot. Ramsey v. City of Kissimmee, 139 Fla. 107, 190 So. 474 (1939); Brown v. City of St. Petersburg, 111 Fla. 718, 153 So. 141 (1933).

While the chief executive officer of the public employer has the duty to bargain with employee representatives, this duty does not vest him with authority to revoke approval passed in an open and transcribed commission meeting. There is a lack of mutuality when the chief executive officer clearly cannot bind the employer to the terms of the contract, yet can effectively reject a contract after the employer has approved it.

I would deny the petition for review.


author: NATHAN, Judge.

text:
    Elizabeth H. QUINN and Allstate Insurance Company, a Foreign Company doing business in Florida, Appellants, v. Truman Alan MILLARD, by his father and next friend, Merle A. Millard, et al., Appellees.
    Nos. 77-565, 77-281 and 77-179.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 21, 1978.

      Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellants.
    Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Ezzo & Garel, Miami, for appellees.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   NATHAN, Judge.

Appellants herein, defendants below, present multi-faceted consolidated appeals from a final judgment awarding damages to the plaintiffs in a personal injury suit and from the court’s denial of their petitions for contribution between joint tort-feasors.

The event giving rise to the action below was an automobile accident. Two boys, Francis M. Quinn, Jr. (Frank), and Truman Alan Millard (Truman), were driving home from their summer jobs when their automobile collided with a station wagon driven by Wesley McMillan. Frank was driving a small sedan in which Truman was a passenger. McMillan’s wife, Annie, was a passenger in his station wagon.

The evidence adduced at trial indicated that Frank was exceeding the speed limit while driving in a southerly direction on a north-south street, and that McMillan failed to yield the right of way after stopping at a stop sign and attempting to turn northward from an easterly direction on an east-west street. A violent collision ensued in which all occupants of both cars were injured, Truman most severely.

Truman and his father, Merle A. Millard, filed suit against Elizabeth H. Quinn (Quinn), Frank’s mother, who owned the car in which Frank and Truman were riding; her insurer, Allstate Insurance Company; and Wesley McMillan and Underwriters Adjusting Company, the local representative of Fidelity and Casualty Company of New York (F&C), McMillan’s insurer. Truman sought damages for bodily injury, mental suffering and loss of earning capacity; his father sought damages for medical obligations and loss of his son’s services.

In their answer to the complaint, defendants Quinn and Allstate included a motion for an order confining Allstate’s liability to the limits of its policy coverage. The record reveals no order directly responsive to this motion. During the course of discovery, Quinn and. Allstate moved to amend their answer to claim a set off of sums they believed were received by Millard from McMillan’s insurer. This motion was granted.

Although no formal dismissal of McMillan and his insurer was announced prior to trial, it appeared, when trial began, that the only remaining defendants in the case were Quinn and Allstate. Just after resting their case, plaintiffs announced that they were taking a voluntary dismissal against McMillan and F&C, since these defendants had remitted several checks to Millard in partial payment of an apparent settlement agreement with the Millards. Defendants Quinn and Allstate opposed allowing dismissal of the other defendants unless the jury were made aware of the alleged settlement. Voluntary dismissal was taken. The jury was not informed of any settlement between plaintiffs and former defendants McMillan and F&C. In due course the jury returned verdicts in favor of Truman in the sum of $275,000 and in favor of his father in the sum of $40,000. Final judgment was rendered against Quinn and Allstate in those amounts, plus costs.

Defendants filed numerous post-trial motions, among them a second motion for limitation of judgment against Allstate, motions to complete certain depositions after trial, a motion for remittitur and a motion to set aside the final judgment for plaintiffs. All the foregoing motions were denied except for the motion to limit judgment, upon which no ruling was made. A post-trial motion to set off the sums paid by McMillan’s insurer to Millard was granted. Defendants also petitioned the court for contribution between joint tortfeasors, but these motions were twice denied. Additional facts pertinent to defendants’ various arguments will be discussed in conjunction with these issues.

Defendants present eight points on appeal. They first assert that the trial court erred in failing to confine the liability of Allstate to its policy limits of $100,000, and contend that, by entering judgment against Allstate in the total sum of $315,-000, the trial court was, in effect, rewriting the contract of insurance between Quinn and Allstate.

Although this contention is incorrect inasmuch as the trial court did not enter judgment solely against Allstate, defendants are correct in asserting that there was error in the court’s failure to resolve the issue of the extent of Allstate’s liability by ruling on the motion for limitation of liability. Instead, judgment was entered against both defendants with no specification of the sums recoverable from each. Cf. Soler v. Kukula, 297 So.2d 600 (Fla. 3d DCA 1974) (order of trial court specified limitations of insurer’s liability).

The trial court’s denial of defendants’ motion to set aside final judgment for plaintiffs did not treat the question of the limitation of Allstate’s liability under the terms of the policy it had issued to Quinn. Therefore this issue was left unresolved, a situation which is unfair to all parties.

It affirmatively appears from the record that the limit of Allstate’s coverage under the policy is $100,000, and no disagreement appears among any of the parties to this cause on this point. However, the record before us does not contain a copy of the policy itself. Therefore we direct that, on remand, the trial court shall verify the policy limits and incorporate its finding on this point to govern a modification of the judgment against Allstate and Quinn. See Stella v. Craine, 281 So.2d 584 (Fla. 4th DCA 1973). And cf. Williams v. Banning, 259 So.2d 725 (Fla. 2d DCA 1972) (where an insured contests his policy limits and no proof of those limits is in evidence, the filing of a cross claim is the proper procedure). The court shall then confine Allstate’s liability to the limits of its policy coverage.

Defendants’ next assertion of error deals with the testimony of two policemen who were permitted to testify as expert witnesses on the subject of accident reconstruction. One of these officers, Robert Needleman, was not present in the courtroom. His deposition was read in lieu of his actual appearance, since he had informed counsel at the time his deposition was taken that he would be out of town during the trial. The other officer, Robert Dixon, testified in the courtroom. Both officers had arrived at the scene after the collision occurred, and gave opinion testimony as to the speed at which the Quinn vehicle was traveling at the time of impact and as to the precise location of the two cars on the roadway at the time of impact.

Specifically, defendants contend that the court committed prejudicial error in allowing both officers to testify as experts for three reasons, all of which were asserted upon repeated objections raised at trial: (1) Plaintiffs did not make a sufficient showing that the witnesses met the necessary criteria of expertise in the area of accident reconstruction; (2) The officers’ opinions were based on data which was insufficient to substantiate their conclusions; and (3) No proper predicate in the form of hypothetical questions was laid for the officers’ opinion testimony.

Since essentially similar facts apply to the testimony of both witnesses, the rationale of our decision regarding Officer Dixon’s testimony would apply equally to Officer Needleman, but for the applicability of Florida Rule of Civil Procedure 1.330(d)(3)(A) and (B) to the latter’s testimony. The rule states:

(3) As to taking of deposition.
(A) Objections to the competency of a witness or to the competency, relevancy or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form or the questions or answers, . . . and errors of any kind that might be obviated, removed or cured if promptly presented are waived unless timely objection to them is made at the taking of the deposition. (Emphasis supplied)

If defendants had raised objections at the time of deposition on the grounds stated in their in-court objections and in this appeal, plaintiffs might have been able to obviate or cure any alleged deficiencies by offering greater proof of the officer’s competency as an expert, by probing for additional data to support his conclusions, or by framing appropriate hypotheticals, if indeed such hy-potheticals were necessary. The purpose of the rule is to give a party just such opportunities and to avoid undue dissension at trial. Since the required objections were not timely raised, defendants will not be allowed to profit by their own omissions, and we find no prejudicial error in the admission of this witness’ deposition. Florida Rule of Civil Procedure 1.330(d)(3)(A) and (B); Evans v. Perry, 161 So.2d 27 (Fla. 2d DCA 1964).

We next consider the applicability of defendants’ objections to Officer Dixon’s testimony. As to the assertion that he was not qualified to testify as an expert, the record reveals that plaintiffs’ counsel did question him on his credentials and the court specifically determined that he was qualified. While our decision as to whether or not he was shown to have possessed the requisite expertise in accident reconstruction might have differed from that of the trial judge, it is a well established principle that such determination lies within the discretion of the trial court and its decision will not be disturbed on appellate review unless both clearly erroneous and prejudicial to the opposing party. Myers v. Korbly, 103 So.2d 215 (Fla. 2d DCA 1958); Upchurch v. Barnes, 197 So.2d 26 (Fla. 4th DCA 1967) and cases cited therein; Warning Safety Lights, Inc. v. Gallor, 346 So.2d 92 (Fla. 3d DCA 1977) and cases cited therein. Since no such strong infirmities appear, this court will not disturb the trial court’s ruling that Officer Dixon qualified as an expert witness.

It does not necessarily follow that his opinions were properly admitted, for it must also appear that they were not based on data which was patently insufficient and that they were presented properly. Defendants argue that, since plaintiffs’ counsel asked no hypothetical questions of the witness, the form of the questions was improper. This argument fails because, although the witness did not see the accident happen, he testified on the basis of his own physical findings at the scene shortly after the accident. Therefore, no hypothetical questions were necessary.

The issue of whether the witness’ conclusions were based on a predicate consisting of sufficient data is less easily resolved, for certain relevant data, e. g. the weight of the cars and their passengers, was omitted from consideration and no evidence was provided as to how the data offered (skid marks, gouge marks, drag factor) was utilized in drawing the conclusions reached. While an expert’s opinion cannot be utilized to supply substantial facts necessary to support that opinion, the sufficiency of the facts required to form an opinion must normally be decided by the expert himself because neither trial judges nor ap-' pellate judges are usually in a position to determine precisely which facts are dispensable and which are essential to the validity of the opinion reached. Therefore, it is usually up to the opposing side to refute these conclusions, and, unless the omissions are glaring, such deficiencies relate to the weight rather than the admissibility of the expert’s testimony. See generally, Nat Harrison Associates, Inc. v. Byrd, 256 So.2d 50 (Fla. 4th DCA 1971). Defendants did not refute the adequacy of the data underlying the witness’ opinions at trial by presenting any experts of their own, and we cannot say with certainty that any omitted data was necessary to the formation of sound opinions on either the speed of the vehicles or the point of impact. But cf. Delta Rent-A-Car, Inc. v. Rihl, 218 So.2d 469 (Fla. 4th DCA 1969) (omission of obviously necessary fact will sustain objection on ground of inadequate predicate).

More persuasive to our conclusion that no prejudicial error resulted from the admission of either officer’s expert testimony is that three neutral eyewitnesses who had previously testified at trial gave their opinions on the speed of the vehicles and the point of impact. Their testimony coincided with the opinions of the officers. We are not unmindful of the weight the testimony of police officers, qualified as experts by the court, is likely to have on a jury, see generally Mills v. Redwing Carriers Inc., 127 So.2d 453 (Fla. 2d DCA 1961), but the opinions stated by plaintiffs’ expert witnesses nevertheless constituted only cumulative evidence such that, even if error had existed in their admission, such error would have been harmless. Delta Rent-A-Car Inc. v. Rihl, supra; Myers v. Korbly, supra; Atlantic Coast Line Railroad Company v. Hilborn, 195 So.2d 596 (Fla. 3d DCA 1967).

By their third argument, defendants contend the trial court erred in refusing to allow them to re-open their case after both sides had rested and plaintiff had completed his closing argument, asserting that they had received information indicating that Officer Needleman was not outside the court’s jurisdiction after all, and that it was crucial that his in-court testimony be obtained. The trial court found there was insufficient basis upon which to grant defendants’ request. Since such a decision lies within the discretion of the trial judge and we find nothing in the record which indicates abuse of that discretion, the point requires no further discussion and is deemed without merit.

Defendants’ fourth argument challenges the correctness of the trial court’s ruling which allowed a psychiatrist to testify as to Truman’s mental condition. The assertion that defendants were not timely notified of plaintiffs’ intention to call the doctor as a witness is refuted by the record. The contention that the doctor’s testimony was inadmissible because he was an examining physician and not a treating physician is governed by this court’s decision in Steiger v. Massachusetts Casualty Insurance Company, 253 So.2d 882 (Fla. 3d DCA 1971), which held that the testimony of a psychiatrist is admissible when based on his own examination of the patient and his expertise in psychiatry. Therefore this argument, too, is without merit.

Fifth, defendants contend the trial court erred in failing to admit evidence of a settlement agreement reached between McMillan’s insurer and the Millards. The basis of defendants’ argument is that the agreement was a “Mary Carter” arrangement and perforce inadmissible. Ward v. Ochoa, 284 So.2d 385 (Fla.1973); Maule Industries, Inc. v. Roundtree, 284 So.2d 389 (Fla.1973).

A “Mary Carter” agreement is essentially a pact between a plaintiff and one or more of multiple defendants which is kept secret from the jury and thus operates unfairly to the advantage of the assentors over the non-participating defendants. The plaintiff is commonly guaranteed a stipulated minimum recovery against the participating co-defendant(s) regardless of the outcome of the litigation, and also that the participating co-defendant(s) will proceed to trial in the guise of true adversaries. The consenting co-defendant(s) have the advantage of a pre-determined limit to their liability regardless of the verdict. The excluded defendants) would have to bear the prejudicial impact of this secret arrangement if the settlement were hidden from the jury, the prejudice arising from the weight the triers of fact would be likely to give to the testimony of an apparent co-defendant. See Ward v. Ochoa, supra.

Thus at least two fundaments underlie the rationale for admitting “Mary Carter” agreements into evidence: the secrecy of the agreement between a plaintiff and an active co-defendant; and the injustice which is likely to arise from the jury’s igno-ranee of the settlement. In the case at bar, the bases for asserting the admissibility of the settlement agreement are infirm. McMillan was not an apparent defendant so that the court’s refusal to admit the settlement agreement resulted in no significant misapprehensions on the part of the jury.

Claim was originally filed against both McMillan and Quinn (and their respective insurers), so that McMillan was still technically a co-defendant until plaintiffs took a voluntary dismissal against him after presentation of their case in chief. However, it is clear from the record that both sides developed their cases in awareness that Quinn and Allstate were the real defendants in the action. Even the trial judge was surprised by the dismissal since he had assumed that McMillan was no longer a party to the suit. No indication was given the jury from the initiation of the trial to its conclusion that McMillan had ever been a co-defendant, this despite the fact that Quinn and Allstate had ample opportunity prior to the voluntary dismissal (which occurred outside the presence of the jury) to inform the jury of this fact. Accordingly, defendants’ contention that the jury would have evaluated McMillan’s testimony differently if they had known that he had settled with plaintiffs is without merit, and absent prejudicial impact resulting from the exclusion of the settlement, there is no basis for finding the existence of a “Mary Carter” situation.

The court granted defendants’ motions for a set off of the sums the Millards received from McMillan’s insurer. This was the correct procedure to follow. See generally, Atlantic Ambulance and Convalescent Service, Inc. v. Asbury, 330 So.2d 477 (Fla. 4th DCA 1975). But cf. Ward v. Ochoa, supra, and Weinstein v. National Car Rentals, 288 So.2d 509 (Fla. 3d DCA 1973) (where true “Mary Carter” Agreement exists, set off is an insufficient remedy). We find no error in the failure to admit the settlement agreement into evidence.

Defendants’ sixth argument, dealing with the trial court’s refusal to allow post-trial completion of the deposition of F&C’s local representative is deemed without merit.

By their seventh argument, defendants assert that the trial court erred in directing a verdict against them and in favor of plaintiffs on the claimed defenses of comparative and contributory negligence on the part of Truman. Defendants contend that two factors militate against the correctness of the court’s direction of a verdict on this issue: (1) Since the adoption of comparative negligence in this state, the defense of contributory negligence is available when a passenger fails to protest the driver’s negligent actions and intentionally exposes himself to known risks; and (2) Truman’s failure to buckle his seat belt contributed to the severity of his injuries.

We do not rule on the viability or applicability of these principles because it is unnecessary for us to treat abstract concepts. The record in this case simply does not reveal sufficient evidence to support the assertion that Truman intentionally exposed himself to known risks, nor does it provide any evidence indicating that less serious injuries would have resulted had-Truman been wearing his seat belt when the collision occurred. Abstract principles unsupported by the evidence adduced at trial do not provide an adequate basis for appellate review. Having reviewed the record most favorably toward defendants on this question as we are compelled to do, we are unable to conclude that a jury could reasonably have found that Truman was contributorily negligent. Accordingly, we affirm the trial court’s direction of a verdict on the defenses of contributory and comparative negligence.

Finally, defendants urge that the trial court erred in granting a motion to quash their first petition for contribution between joint tortfeasors and in denying their second petition for contribution, both against McMillan and F&C. Since McMillan and his insurers were not parties to the suit at the time the first petition was filed, having been dismissed earlier, the court was without jurisdiction to entertain the petition, and the motion to quash was properly granted. Although summons was issued against McMillan and F&C prior to submission of the second petition, the summons was improperly issued for the same reason: McMillan and F&C were not parties to the suit. Therefore the trial court did not err in denying defendants’ petitions for contribution. See also Section 768.31(4)(a)(b) and (c), Florida Statutes (1977).

Affirmed in part; reversed in part; and remanded with directions to modify the final judgment in accordance with the instructions contained herein.

      . A third party complaint by the McMillans against Quinn and Allstate and a separate lawsuit by Quinn and Allstate against McMillan and F&C, both of which were severed from the action sub judice, also emanated from the same accident. These suits have only indirect relevance to these appeals. See discussion, infra, pertinent to defendants’ fifth argument on appeal.

      . The record does not reveal the formalities by which F&C was substituted for Underwriters Adjusting Co. as a party defendant.

      . The final judgment read in pertinent part: “[I]t is hereby considered, ordered and adjudged that Plaintiff Truman Alan Millard does have and recover from the Defendants Elizabeth H. Quinn and Allstate Insurance Company, the sum of . $275,000; and it is further considered, ordered and adjudged that Plaintiff Merle A. Millard does have and recover from the Defendants Elizabeth H. Quinn and Allstate Insurance Company the sum of . $40,000, together with their costs to be determined, for all of which let execution issue.”

      . Prior to empaneling the jury, the court announced that the defendants in the case were the Quinns (mother and son) and Allstate. When defense counsel was asked by the court to introduce the defendants, he responded:
      “This is Elizabeth H. Quinn and she is the mother of Francis Michael Quinn, Jr., and they are the defendants in this case.”
      Additionally, both Mr. McMillan and his wife appeared as plaintiffs’ witnesses, and defense counsel was permitted to inform the jury that separate actions were pending between the Quinns and the McMillans. Thus the jury had to have been aware that these individuals did not stand united in opposition to the plaintiffs and that each felt the other bore some responsibility for the collision, a point of considerable importance to Quinn’s defense. See note 1, supra.

      . We note parenthetically that plaintiffs’ argument that § 768.041 F.S. (1977) precludes admission of the settlement agreement is refuted by the record which makes it clear that no release or covenant not to sue was executed between Millard and McMillan or F&C. The statute does not bar admission of a settlement agreement when neither document has been executed.


author: LETTS, Judge.

text:
    Richard L. SCHMIDT and Nancy Schmidt, Appellants, v. BOWL AMERICA FLORIDA, INC., a Florida Corporation, and Proprietors’ Insurance Company, Foreign Insurance Corporation, Appellees.
    No. 77-228.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.

      Thomas V. Infantino, of Felder & Ber-man, Winter Park, for appellants.
    Jeff B. Clark, of Clark & Freedman, P. A., Orlando, for appelleés.
   LETTS, Judge.

The complaint sought damages against a defendant bowling alley resulting from a slip and fall while bowling. The bowling alley’s Motion for Summary Judgment was granted by the trial court, and the injured plaintiff’s Motion for Rehearing, alleging genuine issues of material fact precluding a Summary Judgment, was denied. The Final Judgment stated that plaintiff “did not see the yellow marking crayon until after he slipped on it.” The trial court concluded that the defendant bowling alley did not have constructive notice of the existence of the marking crayon prior to the slip, and that there were insufficient facts from which to infer that the crayon had been lying on the floor for a “sufficient length of time.” We reverse.

The bowling alley allowed “moonlight bowling” so called because the main lights over the bowling approachways and lanes are turned off. The “grease pencils” used in scoring are yellow and similar in color to the floor coloring. The bowling alley issued, replaced and collected the special marking pencils used for scoring. On the day in question, the lanes and approach-ways were swept at approximately 6:00 P.M. and not after. Later, the Presbyterian Bowling League used Lane 7 from 7:00 P.M. to 10:00 P.M., at which time all lights were on. Moonlight bowling later began and appellant commenced bowling at 11:30 P.M. No other bowlers had bowled on Lane 7 after the Presbyterian Bowling League completed its play. Immediately after his fall, appellant discovered a streak of marking crayon on the approachway at the exit where he fell. A similar streak was found on the bottom of his shoe.

The bowling alley owes a bowler the duty to exercise reasonable care to maintain the alley in a safe condition and to guard against subjecting him to known dangerous conditions or those which reasonably might have been foreseen. Nance v. Ball, 134 So.2d 35 (Fla. 2nd DCA 1961). In a Motion for Summary Judgment, the opposing party is entitled to the benefit of all inferences reasonably to be drawn from the facts disclosed. All evidence, including the bowler’s status as a business invitee, must be viewed in the light most favorable to the party moved against, Gordon v. Hotel Seville, Inc., 105 So.2d 175 (Fla. 3rd DCA 1958), with all doubts and inferences resolved against the movant. City of Saint Petersburg v. Norris, 335 So.2d 333 (Fla. 2nd DCA 1976).

Appellant acknowledges that the bowling alley did not have actual knowledge of the dangerous condition. Nonetheless, a commercial establishment may still be held liable for injuries, if the dangerous condition on the floor has existed for a sufficient length of time to charge the owner with constructive knowledge, Montgomery v. Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla.1973). The proof may be direct or circumstantial, Montgomery, supra. All inferences of fact from the depositions, interrogatories and pleadings must be drawn against the party moving for Summary Judgment, Leaks v. Adeimy, 195 So.2d 47 (Fla. 4th DCA 1967). A Summary Judgment is not proper if the facts are reasonably susceptible of conflicting inferences, Touart v. Gonzalez, 156 So.2d 656 (Fla. 1st DCA 1963).

Applying the above principles of law to the facts here, it must be concluded that the trial court erred in granting the Summary Judgment since there existed sufficient circumstances to warrant allowing a jury to determine whether a reasonable time for discovery of the dangerous condition existed. Jenkins v. Bracklin, 171 So.2d 589 (Fla. 2nd DCA 1965). Evidence that no inspection had been made during a particular period of time prior to an accident may warrant an inference that the dangerous condition existed long enough so that the exercise of reasonable care would have resulted in discovery. Jenkins, supra. In Lee v. The Southland Corporation, 253 So.2d 268 (Fla. 2nd DCA 1971), the plaintiff was injured when she slipped and fell in front of the defendant’s store. The District Court of Appeal reversed the directed verdict and said:

“. . The jury could have found as a reasonable inference that the gummed tape in question had been utilized by Southland in a previous delivery of merchandise to the store; in which event, by its very nature, it could have constituted a hazard for customers or others walking into or out of the store. This is not to even infer that such was actually the case or that the jury would necessarily have so found. It is simply to say that such was within the orbit of legal possibility. . . ”

Id. page 269

In view of the rule that all doubts are to be resolved against the granting of a Summary Judgment and in favor of a trial on the merits, Peoples Gas System, Inc. v. B & P Restaurant Corp., 271 So.2d 804 (Fla. 3rd DCA 1973), the judgment of the trial court is hereby reversed.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

CROSS and ANSTEAD, JJ., concur.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Lawrence S. LANGSTON, Appellee.
    Nos. 77-1807, 78-271.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.

      Spencer & Taylor, Miami, for appellant.
    Hacker, Phelps & Matters, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

On September 23, 1975, Lawrence S. Langston, a resident of Maryland who was a student at the University of Miami, while riding as a passenger on a motorcycle owned and operated by one Willie Fusco, suffered a severe injury as a result of a collision of the motorcycle with an uninsured vehicle. Langston collected $15,-000.00 under the uninsured motorists coverage of a liability policy issued to Fusco Universal Underwriters Insurance Co.

Langston was an insured under a policy with uninsured motorists coverage which had been issued in Maryland by Allstate Insurance Company to his mother, Jean Langston, a resident of Maryland, as the named insured. Lawrence Langston, in Dade County, Florida, sought arbitration of his uninsured motorists claim against Allstate.

In Maryland, Allstate had filed an action against Jean Langston and Lawrence Lang-ston, in which said defendants had been served and were represented by counsel. Therein Allstate sought a determination and declaration of the amount of uninsured motorists coverage under its policy which was available to the defendant, Lawrence Langston, by reason of his injury sustained in the accident involving the uninsured motorist. It was alleged therein the provision for such coverage in the Allstate policy, issued in accordance with the laws of Maryland, was $20,000.00 for each person. The limit of the Universal policy, held by Fusco, also was $20,000.00 for each person. Allstate’s contention was that under the terms of its policy the coverage obligation to Langston was $5,000.00, being its policy limit of $20,000.00 offset by the $15,000.00 received by Langston from such other insurance. Langston contended the coverage to which he was entitled was $40,000.00, based on stacking the two policies without any such offset.

Because of the pendency of the action in Maryland for determination of the coverage obligation of Allstate in the premises, Allstate filed an action in the Circuit Court of Dade County, alleging the above facts and seeking to have the arbitration deferred until determination of coverage in the Maryland action. A copy of the complaint filed in Maryland was attached. An application of Allstate for a temporary restraining order to defer arbitration pending determination of the Maryland action on coverage was denied.

The arbitration proceeded in Dade County, Florida, and resulted in the following award:

“The Undersigned Arbitrator, designated under the arbitration provision of Policy No. 0-18-550435, having been duly sworn and having heard the proofs and allegations of the parties, AWARDS as follows: “The Arbitrators AWARD to the claimant is FORTY THOUSAND DOLLARS AND NO CENTS ($40,000.00). This AWARD is subject to a judicial determination of the applicable policy limits. Claimant contends stacking applies applies. Respondent denies this. Respondent contends it is entitled to a $15,000.00 set-off. Claimant denies this. Claimant contends there is $40,000.00 in coverage. Respondent contends the coverage is $5,000.00. The Arbitrators make no decision in this regard. If the coverage is $5,000.00 the AWARD is $5,000.00. If the coverage is $40,000.00 the AWARD is $40,000.00.
“This Award is in full settlement of all claims submitted to this arbitration.”

Langston filed an answer, and a counterclaim reciting the above-quoted award, and praying for an order confirming the award. Later, Langston filed an amended motion for summary judgment, in which he contended that the above-quoted arbitration award, as a matter of law, entitled him to a judgment for $40,000.00, and moved for entry of a judgment therefor.

Thereafter, with leave of court Allstate filed an amendment to its complaint for injunction wherein it recited said arbitration award and pointed to the provision therein that the amount to which Langston would be entitled thereunder was “subject to a judicial determination of the applicable policy limits”, and alleged that such determination had not yet been made by the court in the pending action in Maryland where that question was to be determined, and requested that proceedings on the arbitration award be stayed until decision of the Maryland case. Langston filed an answer thereto. The record does now show any order entered on that stay application made by Allstate.

On July 26, 1977, the court entered a judgment entitled “Summary Final Judgment Confirming Arbitration Award”. Therein, the court recited that the matter was heard on the defendant’s (Langston’s) amended motion for summary judgment to confirm the award and enter judgment thereon, and ordered as follows:

“ORDERED AND ADJUDGED that said Award of Arbitrator be and the same is hereby confirmed and it is further adopted as the judgment of this court and judgment be and the same is hereby entered as follows:
“ ‘The Arbitrators AWARD to the claimant is FORTY THOUSAND DOLLARS AND NO CENTS ($40,000.00). This AWARD is subject to a judicial determination of the applicable policy limits. Claimant contends stacking applies. Respondent denies this. Respondent contends it is entitled to a $15,000.00 set-off. Claimant denies this. Claimant contends there is $40,-000.00 in coverage. Respondent contends the coverage is $5,000.00. The Arbitrators make no decision in this regard. If the coverage is $5,000.00 the AWARD is $5,000.00. If the coverage is $40,000.00 the AWARD is $40,-000.00.’ ”

Two days later, on July 28, 1977, the court entered two additional orders. One was entitled “Order Granting Defendant-Counterclaimant’s Amended Motion for Summary Judgment”. That order did not contain confirmation of the arbitration award, but recited that the motion for summary judgment was granted, and ordered “that accordingly summary judgment shall be entered against Allstate Insurance Company in the amount of $40,000.00”. The other, entitled “Final Judgment”, ordered that Lawrence Langston recover from Allstate Insurance Company the said amount of $40,000.00, with provision therein for execution to issue.

Allstate moved for rehearing, contending that the above order and judgment entered on July 28, 1977, changed the award and deviated therefrom, and that there had been no request to modify or correct said award but only a motion to confirm the same. The motion for rehearing was denied and Allstate appealed from said orders of July 28, 1977 (Appeal No. 77-1807). Thereafter, Allstate moved to vacate said July 28, 1977 judgments, and filed a separate appeal from an order denying that motion (Appeal No. 78-271).

The court did not commit error by refusing Allstate’s request to enjoin arbitration until such time as the limit of its coverage was determined. This is so because the matter to be decided in the Maryland court action, while it related to coverage, is not a question of whether there is coverage under the Allstate policy, but a question as to the amount of coverage which is available to the claimant under the Allstate policy in the circumstances involved.

In Government Employees Insurance Co. v. Mirth, 333 So.2d 545, 547 (Fla. 3d DCA 1976), this court said:

“Under a liability indemnity insurance policy providing uninsured motorist coverage, issues relating to the merits of the claim against the tort-feasor are triable on the arbitration, but an issue bearing on coverage is not to be so tried, and is triable by the court. Cruger v. Allstate Insurance Company, Fla.App.1962, 162 So.2d 690; Zeagler v. Commercial Union Ins. Co. of N. Y., Fla.App.1964, 166 So.2d 616. *. * *”

If the Maryland action had involved a contention of absence of coverage, arbitration should and presumably would have been enjoined pending such coverage decision. However, because the coverage question being litigated in Maryland is the amount of limit of the insurer’s liability, the arbitration properly could proceed, for determination of the issues relating to the merits of the claim and the amount of damages. The arbitration award fixed the liability and damages, but by its wording disclosed the arbitrators were aware of the divergent views of the parties as to the limit of Allstate’s coverage obligation under its policy, and properly noted the award against Allstate necessarily was subject to the limit of Allstate’s liability under its policy as the same should be determined.

Thus whether Allstate is obligated to pay the full amount of the damages fixed by the award, or less, will depend on determination of the amount of its obligation under its policy. The action initially filed in Maryland for coverage determination conferred on that court the jurisdiction to litigate and settle the question. Wade v. Clower, 94 Fla. 817, 114 So. 548 (1927). For that reason, the question as to the coverage limit could not have been decided in the subsequently filed action in Dade County, Florida, even if the latter action had been brought for that purpose. The action here was a suit to enjoin arbitration, for the reasons stated above, and did not purport to present for determination the said coverage question.

Where the policy was' issued in Maryland to a resident of that State, the construction and legal effect of the terms of the policy and the rights and obligations of the parties thereto are to be determined by the laws of that State. Aetna Casualty and Surety Co. v. Enright, 258 So.2d 472 (Fla. 3d DCA 1972); Allstate Insurance Company v. Clendening, 289 So.2d 704, 709 (Fla.1974); H. S. Equities, Inc. v. Hartford Accident & Indemnity Co., 334 So.2d 573 (Fla.1976).

The Florida Arbitration Code, by Section 682.12, Florida Statutes (1975) provides that upon application by a party to the arbitration the court shall confirm an award, unless within the time limits imposed grounds are urged for vacating or modifying or correcting the award. Here there was an application by the claimant for confirmation of the award, with no request for the award to be vacated or modified or corrected. Section 682.15 thereof provides that upon confirming an award the court shall enter judgment thereon in accordance with the award. That is what the court did by the judgment entered on July 26, 1977.

We are impelled to conclude, as appellant contends, that the subsequent order and the judgment, each of which was entered on July 28, 1977, were not judgments in conformity to the award, and were not in conformity to said Section 682.15, Florida Statutes (1975). Moreover, the order and the judgment of July 28, 1977 necessarily were based on the Florida court making a determination of the rights and obligations of the parties with regard to the liability limit of the insurer to the claimant in the circumstances, by which the court in this case decided the insured’s policy limit obligation was. $40,000.00, as contended for by claimant, rather than $5,000.00, as contended for by Allstate. The court in this case was not entitled to so decide, when jurisdiction for determination of such disputed question of coverage was lodged in the previously filed action in Maryland, where such matter had been raised and was being litigated by the parties.

Accordingly, the order and judgment which were entered herein on July 28, 1977 are reversed, and the arbitration award as confirmed by the judgment entered on July 26, 1977 shall stand as confirmation of the award, and as the judgment entered in conformity thereto.

It is so ordered.


author: PER CURIAM.

text:
    Charles J. VALENTI, Sr., Appellant, v. JEROME S. GROSS, INC., a Florida Corporation, Appellee.
    No. 76-2242.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Goodwin, Ryskamp, Welcher & Carrier, Miami, for appellant.
    Lapidus & Hollander, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by Charles J. Valenti, Sr. from an order dismissing with prejudice his complaint against appellee, Jerome S. Gross, Inc., which sought contribution.

The transactions out of which' this suit for contribution arose were the subject of prior litigation, the judgment in which, on review by this court, was affirmed in part and reversed in part. See: Valenti (and Jerome S. Gross, Inc.) v. Coral Reef Shopping Center, Inc. (and Percival Corporation), 316 So.2d 589 (Fla. 3d. DCA 1975).

The facts involved in the prior litigation and the several rulings of the trial court which were reversed or affirmed are set forth in detail in the opinion of this court in 316 So.2d 589. For the purpose of the present appeal we need make only limited reference thereto.

Under a contract to purchase a shopping center from Coral Reef, the purchaser, Valenti, made a down payment of $35,000.00, which was deposited with the broker, Jerome Gross, Inc. (Gross). Under a separate contract to purchase certain unimproved adjacent land, from Percival Corporation (Percival), a $15,000.00 down payment made by Valenti likewise was deposited with said broker. The purchaser, Valenti, failed to close, and instructed the broker not to deliver the down payments to the sellers, who then filed separate actions against Valenti and Gross for declaratory judgments to determine and establish their right to obtain and retain the down payments. Other claims, counterclaims and cross claims which were involved in those actions, and the rulings thereon in the trial court and on appeal, are not material here.

The holding of the trial court that the sellers, Coral Reef and Percival, were not entitled to the down payments was reversed by this court, without stating any directions to the trial court incident thereto. The trial court (Judge Testa), following remand of the cause, as a means of effecting the recovery by the sellers of the down payments which had been deposited with the broker, entered an order in which there were included separate judgments in favor of Coral Reef and Percival for the amounts of the respective down payments due them plus interest and costs. Such judgments were entered against the purchaser, Valenti, and broker, Gross, “jointly and severally”.

Thereafter Valenti filed this action against Gross alleging he had obtained a satisfaction of the above judgments by paying the amounts thereof to the sellers, and alleged that Gross was liable to him (Valenti) for contribution for one-half thereof.

In granting the motion of the defendant Gross to dismiss and dismissing the complaint, the trial court (Judge Testa) stated the grounds upon which such ruling was made, as follows:

“2. Plaintiff has conceded that his claim is based upon liability between the parties as found by the Third District Court of Appeal in the case of Valenti vs. Coral Reef Shopping Center, Inc., Fla.App., 316 So.2d 589. A copy of the opinion was furnished to this Court at the hearing on Motion to Dismiss.
“3. The opinion of the District Court of Appeal, above referred to, plainly imposes no joint liability upon the Plaintiff and Defendant herein.
“4. Valenti vs. Coral Reef Shopping Center, Inc., Fla.App., 316 So.2d 589 did affirm this Court’s finding in favor of Gross and against Valenti in the Cross-claim in that case asserted by Valenti.”

The appellant Valenti argues that Gross is liable to him for contribution because of the form of the judgments entered by the court in favor of the sellers for the down payments in the prior litigation after remand. We cannot agree. The trial court in this case, in dismissing the complaint, correctly recognized that the circumstances were not such as to call for contribution by the broker. The language of the judgments entered by the trial court after remand, designating the purchaser and the broker as being jointly and severally liable to the sellers for the withheld down payments, was without basis, and may be regarded as surplusage. The down payments had been “paid” by the purchaser at the outset. The broker, as an escrow holder thereof, had no obligation other than to deliver such sums to the sellers, whom this court had held to be entitled thereto. [In the prior litigation, for a certain reason, it had been held that the broker was not entitled to any commission.] Accordingly, we hold that dismissal of the action by the trial court was not error.

Affirmed.

      . The complaint does not explain how the down payment amounts, initially held by Gross, were paid over to the sellers by Valenti as he alleged. In argument here there was mention that when the sales were not consummated the down payments held by the broker were placed in an interest bearing bank account. Presumably those monies, claimed as payments by Valenti, were withdrawn and delivered to the sellers.