author: NATHAN, Judge.

text:
    CITY OF MIAMI, Florida, a Florida Municipal Corporation, Appellant, v. COCONUT GROVE MARINE PROPERTIES, INC., Coconut Grove Marine, Inc., Grove Yacht Sales and Brokerage Inc., all Florida Corporations, Grove Design and Purchasing Co., and Billy Paul Kelley, Appellees.
    No. 77-480.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Rehearing Denied June 16, 1978.

      George F. Knox, Jr., City Atty., and Michel E. Anderson, Asst. City Atty., for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Phillip E. Walker, Miami, for appellees.
    Before NATHAN, HUBBART and KE-HOE, JJ.
   NATHAN, Judge.

The City of Miami, defendant in the trial court, takes this appeal from a judgment in an action for damages stemming from alleged misuse of the City’s condemnation power. _ Plaintiffs, former owners, corporations and businesses, filed this action for damages against the City for wrongful taking of private property for a private use. The complaint alleged that the City, having taken plaintiffs’ property ostensibly for a public purpose, bestowed the property and plaintiffs’ business upon another private business. The damages sought by the plaintiffs include (1) the difference between the amount plaintiffs received in a prior condemnation action, and the amount the City would have had to pay if the zoning had been changed to high rise pursuant to the plaintiff-owner’s application; (2) damages for loss of business, profits, clientele, good will and future business; and (3) punitive damages for misuse of public funds for private purpose.

Prior to January 30, 1974, plaintiff Coconut Grove Marine Properties, Inc., was the owner of the property located at 2550 South Bayshore Drive, Miami, Florida, which is the subject of this litigation. In 1971, plaintiff applied to the City of Miami Planning and Zoning Board for a zoning change and variances to allow the construction of a high rise complex including a marina, boat slips and apartments. The applications were denied and plaintiff appealed to the Miami City Commission. Plaintiffs now allege that the City Commission indefinitely deferred ruling on the applications in order to acquire the property at a lower price than the City would have had to pay had it not wrongfully prevented rezoning. Plaintiffs further allege a breach of the public trust so as to allow punitive damages.

The record reflects that in 1972, the City held a special bond election called the “Parks for People” bond issue, pursuant to which the issuance of bonds was approved by the electorate for “acquiring, constructing, developing, extending, enlarging, filling and improving public park and recreational facilities in the City. . . . ”

In 1973, the Miami City Commission approved a resolution declaring the property owned and leased by the plaintiffs to be “necessary and for a public purpose to provide for park and recreational facilities,” and ordered that the property owned by plaintiff Coconut .Grove Marine Properties, Inc., and on which plaintiffs operated their businesses, be acquired “for additional park facilities for the expansion of Dinner Key Marina by gift, purchase or condemnation.”

The condemnation proceedings instituted as a result of an ordinance declaring plaintiff’s property to be necessary “for a public purpose to provide park and recreational facilities,” resulted in the entry of a settlement agreement pursuant to which Coconut Grove Marine Properties, Inc., and the City of Miami waived trial by jury and consented to the entry of a final judgment vesting title to the property in the City. The final judgment provided that the City would pay $950,000.00 as full and just compensation for the property taken and “for all other damages of any nature whatsoever which has or may result from the condemnation action to Coconut Grove Marine Properties, Inc.” The final judgment further provided that Underwood Marine Corporation, lessee of the property and a defendant in condemnation, “shall be permitted to remain in possession” of the leased portion. of the property for one year, and thereafter on a month to month basis. Since entry of the final judgment in condemnation in 1974, the City of Miami has continuously leased the property to private businesses for nautically related purposes; namely to a private marine sales outlet and marina, and to a store selling clothing and marine related items. This, plaintiffs contend, deprived them of the clientele and good will which they established having previously conducted similar business on that property. .

Subsequent to the final judgment in condemnation, the City Commission advertised for bids for redevelopment of the property. One of the proposals submitted is a highly comprehensive shopping mall similar to Ghiradelli Square in San Francisco, Ports of Call in Los Angeles and Trolley Square in Salt Lake City. This is the basis for the plaintiffs’ claim in the instant case, that the property was wrongfully taken for a nonpublic purpose.

After hearing the evidence, the trial judge found that when the Miami City Commission only announced its intention to use the “Parks for People” bond proceeds for public parks and beaches, the people voting in the special bond election were never informed that the City would invite proposals for private commercial utilization such as a shopping mall, which would exclude free and uninhibited access to or by the public. The court concluded that eminent domain proceedings are a lawful and constitutional exercise of governmental authority for the acquisition of private property; but that the invitation for bids contemplated a use that is predominantly private and commercial, and therefore, the condemnation was not “necessary and for a public purpose to provide for park and recreational facilities.” Thus, the court ruled, a city may take private property for private use, but under the facts presented in this case, plaintiffs have a cause of action for damages for the taking. The court stated that it “recognize[d] the City’s ability to initiate curative legislation,” but also pointed out that the shopping area concept is a significant departure from the Master Plan which provides for a serene panoramic park atmosphere. The trial court then entered the judgment herein appealed, ruling that the City shall have the opportunity to modify the proposal and readvertise for bids; that plaintiffs’ petition for injunction be denied without prejudice; and that plaintiffs’ prayer for compensatory damages be denied without prejudice. '

At the outset, we note that the trial judge improperly treated this action as a suit for declaratory decree. Secondly, we are of the opinion that the judgment does not constitute a final judgment, and therefore, is not appealable by way of plenary appeal. We shall, however, consider this cause to be a petition for writ of certiorari, and treat it accordingly.

The City of Miami contends that under the facts of this case, where the property was totally taken by condemnation, and where the former owner entered into a settlement agreement in the prior condemnation action, in which it agreed to accept a specified sum as full compensation for the property taken and for all other damages of any nature which have resulted or may result from the condemnation, the former owner cannot file a new lawsuit seeking business damages for businesses which were located on the condemned property.

Generally, business damages do not constitute a part of the constitutionally protected concept of “just” or “full” compensation unless such damages come within the scope of the applicable statutory law. State Road Department v. Bramlett, 189 So.2d 481 (Fla.1966). See Section 73.071(3), Florida Statutes (1975), which provides in pertinent part that compensation for business damages may be awarded “[wjhere less than the entire property is sought to be appropriated.” (emphasis supplied). The right to business damages is a matter of legislative grace and not constitutional imperative. Jamesson v. Downtown Development Authority of City of Fort Lauderdale, 322 So.2d 510, 511 (Fla.1975). Failure to meet the statutory requirements will result in disallowance of the claim. State Road Department v. Peter, 165 So.2d 771 (Fla.2d DCA 1964). Plaintiffs in the instant case failed to claim business damages in the initial condemnation action. They did not meet the statutory requirements for such a claim at that time, and they still do not. From the facts in this case, the plaintiffs cannot seek business damages now when they were never entitled to such damages in condemnation.

Plaintiffs contend that they are not challenging the City’s right to take private property for public purposes, and they fervently deny that this is an action for business damages. It is, they argue, an action based on a wrongful taking. As stated in Carlor Co. v. City of Miami, 62 So.2d 897, 900 (Fla.1953), it is elementary that a condemnation judgment or award cannot be collaterally attacked except where there is fraud or where the judgment is void for want of jurisdiction. Moreover, the burden is on the party collaterally attacking a final judgment in eminent domain to demonstrate that the matter was not concluded in the previous action. City of Miami v. Osborne, 55 So.2d 120 (Fla. 1951). In the condemnation proceedings, the plaintiffs (defendants in condemnation) filed an answer admitting necessity and public purpose, entered into a settlement agreement which resulted in a final judgment which provided for the City’s right to lease the property for a private purpose (a marina and nautically related businesses), and plaintiffs received the benefits of the final judgment, which all parties and the court agreed was a fair judgment. In that action, then, the matters of the necessity of taking; the amount of compensation; the right of the City to condemn; and the question of whether the taking was for a valid public purpose, were all conclusively determined.

The City next contends that a settlement agreement and final judgment in condemnation may not be attacked so as to allow additional damages without allegation and proof of extrinsic fraud. Extrinsic fraud is defined by Black’s Law Dictionary, Revised Fourth Edition, as follows:

“Extrinsic or collateral fraud justifying extrinsic relief against a judgment or decree means some intentional act or conduct by which the prevailing party has prevented the unsuccessful party from having a fair submission of the controversy.” (emphasis in original; citation omitted)

It is a universal rule that in cases of attacks on judgments to set them aside because of fraud, it is necessary that the fraud be extrinsic rather than intrinsic, the reasoning of the courts being that if this restriction were not placed on suits of this kind, litigation would become interminable; thus, the rule is invoked even though injustice may result in individual instances. Fair v. Tampa Electric Company, 158 Fla. 15, 27 So.2d 514, 515 (1946). There are no allegations and no evidence to support a finding of extrinsic fraud in this case. In fact, we find that the record fails to reflect evidence of fraud of any type. .Therefore, the plaintiffs’ allegations of fraud do not warrant creditable consideration by this court.

The City’s third and final contention is that a governmental authority may constitutionally acquire land by the eminent domain power and then lease the land for commercial use in furtherance of the public purpose. We agree. See, for example, Panama City v. State, 93 So.2d 608 (Fla.1957), wherein the Florida Supreme Court held that concession buildings containing shops and stores were incidental to a marina and did not destroy the public nature of the project. As stated in Baycol v. Downtown Development Authority of Fort Lauderdale, 315 So.2d 451, 455 (Fla.1975),

“We have long been committed in a consistent series of cases to the proposition that eminent domain cannot be employed to take private property for a predominantly private use; it is, rather, the means provided by the constitution for an assertion of the public interest and is predicated upon the proposition that the private property sought is for a necessary public use. It is this public nature of the need and necessity involved that constitutes the justification for the taking of private property, and without which proper purpose the private property of our citizens cannot be confiscated, for the private ownership and possession of property was one of the great rights preserved in our constitution and for which our forefathers fought and died; it must be jealously preserved within the reasonable limits prescribed by law.
Applying reason to this basic proposition, our decisions have, however, consistently allowed an incidental private use where the purpose of the taking was clearly and predominantly a public purpose.” (emphasis in original).

In the ease of State ex rel. Ervin v. Cotney, 104 So.2d 346, 348 (Fla.1958), it was held that a public body cannot use its power and funds to acquire property, either by purchase or by exercise of the eminent domain power, for the sole purpose of making the property available to private enterprise for private uses; but if a valid public purpose will be effectuated by a proposed plan of acquisition and/or improvement of the property by a public body, the fact that a sale or lease of a portion of the improvement to private parties was contemplated will not invalidate the plan. The fact that a private corporation or individual will incidentally profit from the transaction does not, in itself, defeat a public purpose. Hanna v. Sunrise Recreation, 94 So.2d 597, 601 (Fla.1957).

For the foregoing reasons, we have determined that the trial court departed from the essential requirements of law. Therefore, we reverse the judgment and deny the plaintiffs’ prayer for relief with prejudice.

It is so ordered.

      . It appears from the record before us that plaintiffs never took action to compel the City Commission to act on the applications for rezoning and variances; and further, that the matter was not raised in the initial condemnation suit.


source: Caselaw Access Project

author: PEARSON, Judge.

license: Public Domain

text:
    James T. PRUCHA, Jr., Appellant, v. GUARANTEE RESERVE LIFE INSURANCE COMPANY OF HAMMOND, Appellee.
    No. 77-539.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Rehearing Denied June 16, 1978.

      Walton & Garrick, Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

James T. Prucha, Jr., the appellant here, brought an action against the appellee, Guarantee Reverse Life Insurance Company of Hammond, upon a policy whereby he was entitled to recover eighty percent of the premiums paid after ten years if no claims had been made under the policy. The facts developed by the pleadings are that the policy had been assigned to another insurance company. The plaintiff paid premiums to the second insurance company, which subsequently went through rehabilitation proceedings in Indiana.

The trial judge herein dismissed the complaint with prejudice. For this purpose, we must treat the order dismissing the complaint as a summary final judgment. We reverse upon a holding that the defendant was not entitled to a judgment as a matter of law.

The facts are not disputed. The defendant has accepted the plaintiff’s statement, which is as follows:

“On January 4, 1966, GUARANTEE RESERVE LIFE INSURANCE COMPANY sold a non-cancelable income policy to Plaintiff. This policy contained a Return of Premium Rider which provided for the return to Plaintiff of 80% of the premium paid if no benefits were paid under the policy for a ten year period. No benefits were paid for a ten year period, resulting in the claim for the return of premium benefits. GUARANTEE denied this claim based upon their [having] rein-surfed] this contract with Underwriters National Assurance Company.
“Letters were received by Plaintiff on January 9,1969, from GUARANTEE and Underwriters National informing Plaintiff that his policy had been purchased from GUARANTEE by Underwriters National and directed that he make future premium payments to Underwriters National.
* * * * * *
“The notice to Plaintiff contained the language, ‘The only change will be that you will send your premium from this date on to Underwriters . . . Let me repeat, all the provisions of your policy remain the same; there are no changes.’ This letter also indicates that there was reinsurance in a financially secure company. None of the notices to Plaintiff informed that GUARANTEE would be released from liability.
* * * * * *
“On January 27, 1969, Plaintiff wrote to Underwriters concerning premium due notices and informed them that his policy had been assigned without his knowledge and without his approval.
******
“Plaintiff was never informed that GUARANTEE would be relieved of obligations under its policy.
******
“An Indiana trial court on December 7, 1976 added to its prior judgment by providing that GUARANTEE was not liable to its policyholder with the return of premium rider.
“Plaintiff was not a party to the Indiana proceeding. He requested exclusion pursuant to the Indiana court’s directions.”

The facts being uncontroverted, the point to be decided is whether the defendant was, as a matter of law, entitled to judgment. The defendant’s position in support of the judgment is that because it sold the block of insurance policies (including plaintiff’s policy) to Underwriters National Assurance Company, and Underwriters explicitly agreed to assume and pay, when due, all of Guarantee’s obligations arising out of the policies, and accordingly, for seven years, plaintiff paid his premiums to Underwriters without objection and, thereafter, Underwriters underwent a rehabilitation plan under the supervision of an Indiana court, which adjudged that as a policyholder, plaintiff was bound by the plan, therefore, plaintiff is bound by that judgment even though he did not appear therein. The judgment of the Indiana court was that Guarantee was released from all obligations on the policies. The defendant urges that the Florida courts are bound by the Indiana determination under the principles of comity. See Hartford Accident & Indemnity Co. v. City of Thomasville, Ga., 100 Fla. 748, 130 So. 7 (1930).

This analysis of the applicable law relies alternatively on two theories: (1) the principle of novation of contract by acquiescence, and (2) the principle that Guarantee’s liability on the policy was effectively withdrawn from the jurisdiction of other state courts by the rehabilitation proceedings in Indiana.

The facts before the trial judge are insufficient to constitute a novation. The plaintiff was not presented with an effective alternative to the course that he pursued. The mere assignment of the policy could not of itself transfer the liability of the contracting party. See 13A Appleman Insurance L. & P. § 7755 (1976), citing American National Ins. Co. v. Briggs, 70 S.W.2d 491 (Tex.Civ.App.1934). Novation is predicated upon consent. See Tysen v. Somerville, 35 Fla. 219, 17 So. 567 (1895). Plaintiffs consent was not asked for. His consent may not be implied where he had no opportunity not to consent. Faced with the accomplished fact of the transfer, all the plaintiff could do was to continue paying the premiums or abandon his investment. Cf. State of Florida ex rel. O’Malley v. Department of Insurance, 155 Ind.App. 168, 291 N.E.2d 907 (1973).

The second alternative principle is that the question of Guarantee’s liability on the policy has been foreclosed by the holding of the Indiana court in the rehabilitation proceedings. The holding of the Indiana court is entitled to great weight and consideration, but it is not binding upon the plaintiff because he was not a party to the rehabilitation proceedings. We are not here concerned with the binding effect of a rehabilitation plan upon policyholders of the rehabilitated company. See Carpenter v. Pacific Mutual Life Insurance Company of California, 10 Cal.2d 307, 74 P.2d 761 (1937). The question here is whether the judgment of the Indiana court in a rehabilitation proceeding for one insurance company may, by judicial fiat, relieve another insurance company of contracts with persons not party to the rehabilitation proceedings. We hold that such a judgment is beyond the scope of the Indiana proceedings and is not binding on the courts of Florida in dealing with the contract rights of its own citizens. See Hartford Accident & Indemnity Co. v. City of Thomasville, Ga., 100 Fla. 748, 130 So. 7, 8 (1930); Herron v. Passailaigue, 92 Fla. 818, 110 So. 539, 542 (1926); and Carriers Insurance Company v. LeRoy, 309 So.2d 35, 37 (Fla. 3d DCA 1975). Cf. State of Florida ex rel. O’Malley v. Department of Insurance, 155 Ind.App. 168, 291 N.E.2d 907 (1973); and cf. the general principles of law in Gillen v. United Services Automobile Association, 300 So.2d 3 (Fla.1974).

The judgment for defendant Guarantee Reserve Life Insurance Company of Hammond is reversed and the cause is remanded to the trial court to enter a judgment for the plaintiff.

Reversed and remanded.

      . ■ The order could be considered a judgment on the pleadings except that the parties have agreed to a statement of facts, some of which are not reflected in the pleadings.


author: PER CURIAM.

text:
    William R. SMYTH and Eleanor C. Smyth, his wife, Appellants, v. JANE C. COUSINS, INC., a Florida Corporation, Appellee.
    No. 77-550.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Rehearing Denied June 16, 1978.

      Richard H. W. Maloy & Associates and Bernard P. Siegel, Coral Gables, for appellants.
    Ira W. Kay, Jr., and M. J. Kortis, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff purchaser appeals a final summary judgment entered in favor of Jane C. Cousins, Inc., one of the defendants in an action for cancellation of a deed and damages for negligent misrepresentation arising out of the sale of a single family residence.

In 1967, defendant Elizabeth Mitchell (not a party to this appeal) pdrchased the subject residence and renovated a substantial portion by adding approximately 2300 sq. feet to the original 1200 sq. feet and a swimming pool. In 1974, when Ms. Mitchell was a real estate salesperson working out of the office of the defendant-appellee, Jane C. Cousins, Inc., she listed her residence for sale with the Coral Gables Board of Realty Multiple Listing Service, of which Cousins was a member. To have a property listed with this service, a seller had to apply through a broker member and Ms. Mitchell listed through Cousins. It was Cousins’ policy not to participate in commissions on property owned by salespersons connected with that office. Ms. Mitchell paid the listing fee and prepared for the use of realtors subscribing to the service, a sales brochure which described her residence as being built in 1973. At the bottom of the brochure was the following in bold print:

“THIS OFFERING SUBJECT TO OMISSIONS, ERRORS AND PRIOR SALE WITHOUT NOTICE.”

Subsequently, the listing expired and all the subscribing realtors were so informed. Some eight months later, plaintiff-appellants, William and Eleanor Smyth, came in contact with Helen Gaylor of Coral Gables Realty. Ms. Gaylor made several inspections of the Mitchell residence with the Smyths who were given a copy of the expired sales brochure. The Smyths purchased the residence and after taking possession they made extensive repairs and discovered that the residence was originally built in 1950. The Smyths then filed the present action against Ms. Mitchell and Cousins. Following pretrial discovery, Cousins moved for summary judgment. After hearing argument of counsel, the trial court entered summary judgment as to Cousins. The Smyths appeal. We affirm.

In order to sustain an action for negligent misrepresentation there must be some affirmative action on the part of the defendant broker in advertising the sale of the property. See Nantell v. Lim-Wick Construction Company, 228 So.2d 634 (Fla.4th DCA 1969) and Cf. Diaz v. Keyes Company, 143 So.2d 554 (Fla.3d DCA 1962). There is no showing in the record that Cousins participated in any part of the sale, received a commission or made any representations to the Smyths in connection therewith. Further, the brochure was prepared for the 'use of the relators belonging to the multiple listing service and the listing had expired. Under the circumstances, we find that the Smyths are precluded from relying upon the brochure. See Ruwitch v. First National Bank of Miami, 291 So.2d 650 (Fla.3d DCA 1974); Walker v. Mebane, 279 So.2d 386 (Fla.4th DCA 1973).

Affirmed.


author: HUBBART, Judge.

text:
    Carl EIERLE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1163.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Rehearing Denied June 9, 1978.
    Martin S. Saxon, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   HUBBART, Judge.

The defendant Carl Eierle appeals a conviction for first degree murder and a life imprisonment sentence after a jury trial before the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant makes two contentions on appeal: (1) a judgment of acquittal should have been entered upon motion because the evidence was insufficient to establish that the death of the deceased was caused by the criminal agency of another, and (2) the medical examiner’s testimony at trial that the deceased met her death through suffocation or strangulation was inadmissible in evidence. We cannot agree with either contention and affirm.

A careful review of the record reveals that the deceased wife of the defendant was discovered dead by the police lying face down in a cemented septic tank eighteen inches below the ground in a freshly dug area in the defendant’s back yard. The defendant had been seen by a neighbor shortly prior thereto digging in the area. The defendant also had threatened to kill the deceased and was last seen in her company shortly prior to the discovery of the dead body. An autopsy was performed and according to the medical examiner the deceased met her death by suffocation or strangulation. This was more than sufficient evidence to establish that the deceased met her death through the criminal agency of another. Sweetser v. State, 258 So.2d 287 (Fla.3d DCA 1972); Freeman v. State, 101 So.2d 887 (Fla.2d DCA 1958).

As to the admissibility of the medical examiner’s testimony, a review of the record shows that the witness was a qualified pathologist, that he conducted a thorough autopsy on the deceased’s body, and that by a process of elimination he concluded, based on a reasonable medical certainty, that the deceased had died from suffocation or strangulation. He found no evidence of disease, trauma to the body, obstruction to the throat, drugs, insect or snake bites. He did state on cross-examination that he regarded his opinion as a “guess”, but he clarified this testimony on redirect examination by stating that this was his opinion based on a reasonable medical certainty.

A medical witness may reach a conclusion by the process of elimination through excluding natural causes of death. This process of elimination will not render the witness’ conclusion inadmissible, but merely affects the weight to be given his testimony which must be determined by the jury. Vaillancourt v. State, 288 So.2d 216 (Fla.1974).

The judgment of conviction and sentence appealed from is affirmed.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Jill Denise MIDDLEMISS et al., Appellants, v. Gottlieb WESNER et al., Appellees.
    No. 77-105.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    Carol M. Anderson and Don Lacy of Anderson & Anderson, Fort Lauderdale, for appellants.
    Nancy Little Hoffmann, and Druck, Grimmett, Norman, Weaver & Scherer, Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed.

CROSS, J., and CRAWFORD, GRADY, Associate Judge, concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

The appellants, Jill Denise Middlemiss and her father, are seeking a new trial of a personal injury action, claiming error by the trial court in making certain comments to the jury.

Under Florida’s no fault law then in effect, Miss Middlemiss was required to prove a permanent injury or medical expenses in excess of $1,000.00, in order to maintain her personal injury claim. Since her medical expenses were less than $1,000.00, her case relied solely on proof of a permanent injury. She presented a doctor who testified that in his opinion she had received a permanent injury, and the appellees presented a doctor who opined that she had not. During the cross-examination of the doctor called by the appellees, the following took place:

Q. Dr. Dickens, do you very often testify in court?
A. I don’t know what you mean by “very often”. I mean, I testified on the average of, oh, maybe two or three times a month.
Q. And do you very often testify for the defense?
A. I imagine I do; that’s right.
MS. ANDERSON: Okay, thank you. I have nothing further.
THE COURT: Members of the jury, I want to inform you, at this time, the Court appointed Dr. Dickens to examine the plaintiff at the defendant’s motion. The Court appointed Dr. Dickens to examine the plaintiff. Okay, you can step down, Doctor.

Immediately thereafter, the appellants objected to the court’s comments and moved for a mistrial, which was denied by the court, as was a subsequent request that the jury be instructed that no greater weight be given the doctor’s testimony simply because he was court-appointed. The jury found by special interrogatory verdict that Miss Middlemiss had not sustained a permanent injury and was, therefore, not entitled to recover.

In response to appellants’ objection and motion for mistrial, and out of the presence of the jury, the court stated:

THE COURT: Your questioning exceeded the bounds of propriety. When you did, it was necessary for me to establish to this jury that the Court had the confidence in this doctor to appoint him, and that is exactly why I did, and I appointed him. I reposed the confidence of this Court in this doctor, and your questions were intended to slant that. This is the difficulty and that’s why I asked you, because I figured you were going to get into that, and I wanted to head you off. But you persisted in it, and when her persist in that, you are going to pay the consequence.
MS. ANDERSON: If I could continue with my objection. The comment by the Court to the jury that the doctor was' Court appointed was prejudicial to the plaintiff in that it gave the jury the impression that the doctor had a special competence, and a competence and integrity not otherwise appointed to other doctors, such as the plaintiff’s doctor. The question that I asked I have asked in other cases. It has never been objected to. It is not, to the best of my knowledge, error. I did not mention the fact that this doctor was Court appointed, nor did I ask him — he did testify on direct he came here either by appointment of the Court or by the request of the defendants.
THE COURT: That’s right; that’s exactly right, and your questions were calculated to elicit the fact that he testified for the defense, and he was being paid by the defense. You persisted in that questioning, and I wanted the jury to know — I don’t want them to be misled that he is a defendant’s doctor; he is not. In this particular instance, he was appointed by the Court under the rules of practice, under proper application by the defendants to examine the plaintiff under the rules of practice, under the order of this Court to examine, and I want the jury to know that because I don’t want the jury to be misled that he was a minion of the defendants, because he is not.

The record reveals that Dr. Dickens was appointed to examine Miss Middlemiss in an agreed order stipulated to by counsel.

On appeal both sides agree that the standard of conduct by a trial judge is correctly stated in Hamilton v. State, 109 So.2d 422, 424-425 (Fla. 3d DCA 1959):

The dominant position occupied by a judge in the trial of a cause before a jury is such that his remarks or comments, especially as they relate to the proceedings before him, overshadow those of the litigants, witnesses and other court officers. Where such comment expresses or tends to express the judge’s view as to the weight of the evidence, the credibility of a witness, or the guilt of an accused, it thereby destroys the impartiality of the trial to which the litigant or accused is entitled. (Emphasis supplied.)

The appellees contend that the statements made by the trial court, in the presence of the jury, were correct and did not deviate from the standard set out above. I cannot agree.

The comments by the court must be considered in the light of the court’s own statements in explanation made outside the jury’s presence. In most cases, this court is limited to a consideration of the “cold record” which does not always reveal the actual atmosphere in the courtroom. Limited by that record it is often difficult to evaluate allegedly prejudicial comments made during the course of a jury trial. Here, we have no such problem. The trial court clearly stated that his purpose was to let the jury know that the court had reposed its confidence in this doctor and that the doctor was not biased in favor of the appel-lees. And as evidence of the prejudicial effect on the appellant the court even categorized his remarks as a “consequence” to be suffered because of counsel’s cross-examination concerning the doctor’s previous court appearances. I can only assume that the trial court accomplished his stated purpose.

The statements were not justified by appellants’ counsel’s conduct. There was nothing improper in the cross-examination of the doctor. Indeed, there was no objection made by appellees to the questions asked about the doctor’s previous court appearances. Certainly both sides were entitled to wide latitude in cross-examining both medical witnesses to discover any possible bias or prejudice since the issue of permanent injury largely rested on the credibility of their testimony.

While the trial court’s comments were technically accurate in that Dr. Dickens was court-appointed, there is nothing in the record to indicate that the appointment was made upon an independent determination by the court of the qualifications of Dr. Dickens. To the contrary, the appointment was made by agreement of the parties. However, regardless of the circumstances surrounding the appointment, it is up to the parties to elicit those circumstances. For instance, it would have been entirely proper for the appellees to establish the fact that appellants’ counsel had agreed to Dr. Dickens’ examination of Miss Middlemiss. But when the trial court takes it upon itself to express “confidence” in the witness as a “consequence” of attempted impeachment, I believe it constitutes a comment by the court on the credibility of the witness. And, no matter what the circumstances may have been in the selection of the doctor to examine the plaintiff, the court’s role in his selection does not entitle the doctor’s testimony to any greater weight or credibility than that of other expert medical witnesses. An instruction to this effect would probably have mitigated the consequences of the harmful comments, but no such instruction was given.

The issue of permanent injury was at all times a crucial one, and a necessary predicate to appellants’ claim. Since there were only two medical experts to testify, that issue boiled down to which of the two medical opinions the jury would accept. Accordingly, the credibility of the doctors became crucial, and it is impossible for me to conclude that the trial court’s expression of confidence in Dr. Dickens did not constitute prejudicial error.


author:
PER CURIAM.
      ANSTEAD, Judge,

text:
    Carlos LANGE, Appellant, v. COLLISION CLINICS INTERNATIONAL, a Florida Corporation, Appellee.
    No. 77-169.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    Bernard A. Jackvony of Sciaretta & Jackvony, Fort Lauderdale, for appellant.
    Thomas E. Brandt of Law Offices of Donald R. Niles, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

AFFIRMED.

LETTS, J., and MINER, CHARLES E., Jr., Associate Judge, concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

In this replevin action I think the trial court erred in granting a motion for summary judgment for the defendant, Collision Clinics International, after the property in question was returned to the plaintiff, Carlos Lange, during the pendency of the re-plevin action. Lange was entitled to a trial on damages.


text:
    Louis F. SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-2086.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.
    Jack O. Johnson, Public Defender, Bar-tow, and Stephannie L. DaCosta, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Martha J. Cook, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant contends that he received an illegal sentence for kidnapping. We agree.

Appellant entered guilty pleas to charges of kidnapping, assault, aggravated battery, and escape. On November 21, 1977, the court adjudged him guilty and sentenced him to prison terms of five years for assault, five years for aggravated battery, life for kidnapping and five years for escape. The first three sentences were to run concurrently with each other but consecutive to the sentence for escape.

At the time the court sentenced appellant, the penalty for kidnapping was life in prison. Section 787.01, Florida Statutes (1977). However, the state charged appellant with violating Section 805.01, Florida Statutes (1973), and at the time appellant kidnapped his victim, October 3, 1973, a violation of that section was only a second degree felony carrying a maximum prison term of fifteen years. Section 775.082, Florida Statutes (1973). Therefore, any sentence over fifteen years was excessive because a defendant is subject only to the penalty in effect at the time he committed the offense. Castle v. State, 330 So.2d 10 (Fla.1976), aff’g, 305 So.2d 794 (Fla.4th DCA 1974).

While the state concedes that what we have said is true, it contends that appellant may not appeal the excessive sentence since he entered a plea of guilty. We disagree with that conclusion.

Section 924.06, Florida Statutes (1977), which governs a defendant’s right to an appeal, says:

(1) A defendant may appeal from:
(a) A final judgment of conviction when probation has not been granted under chapter 948, except as provided in subsection (3);
(b) An order granting probation under chapter 948;
(c) An order revoking probation under chapter 948; or
(d) A sentence, on the ground that it is illegal.
(2) An appeal of an order granting probation shall proceed in the same manner and have the same effect as an appeal of a judgment of conviction. An appeal of an order revoking probation may review only proceedings after the order of probation. If a judgment of conviction preceded an order of probation, the defendant may appeal from the order or the judgment or both.
(3) A defendant who pleads guilty or nolo contendere with no express reservation of the right to appeal shall have no right to a direct appeal. Such' a defendant shall obtain review by means of collateral attack.

Reading Subsection (l)(d) and Subsection (3)together, we believe that the legislature did not mean to cut off a defendant’s right to direct appeal from an illegal sentence when he has entered a guilty plea. Rather, we think that Subsection (3) only restricts direct appeals from any error which occurs prior to the acceptance of the plea by the court, or from any error in the acceptance itself.

Accordingly, we vacate the sentence appellant received for kidnapping and remand the case to the trial court for resentencing.

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.

      . This section went into effect on July 1, 1975. Ch. 74-383, § 22 and § 67, Laws of Florida.


text:
    Leroy WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 78-566.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.
   PER CURIAM.

In this case, appellant Leroy Williams appeals to this court from an order summarily denying a post-conviction motion for relief under Fla.R.Crim.P. 3.850.

Appellant, Ernest Lee Dixon, and Herbert Godbolt were indicted for the murder of Gerald “Pops” Brown. After a jury trial, appellant was found guilty of murder in the third degree and sentenced to imprisonment for a period of fifteen years.

Appellant alleges in his motion that he was denied effective assistance of counsel in that his court-appointed attorney failed to object to the use of his confession and failed to move to suppress evidence pertaining to the body of the victim.

It appears from the record that appellant’s allegation of defense counsel’s failure to object to the use of his confession is not true. A defense motion to suppress his confession was made and denied. The lower court’s summary denial, without hearing, of that portion of appellant’s post-conviction motion concerning his confession was therefore proper.

However, the record does not directly refute appellant’s other allegation. There is no indication that appellant’s counsel ever moved to suppress evidence relating to the body of the victim. But an order entered by the trial court on September 15, 1975 indicates that counsel for appellant’s co-defendants did file such a motion, that the motion was granted, and that evidence pertaining to Brown’s body was therefore not used against them.

Fla.R.Crim.P. 3.850(e) provides in pertinent part as follows:

If the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing. In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the other [sic]. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting attorney of the court, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. (Emphasis added)

The portions of the records attached to the trial court’s order do not conclusively show that appellant’s second allegation is untrue. With respect to this situation, Fla. R.App.P. 9.140(g) provides in part that “Unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing.” Accordingly, we hereby reverse and remand this cause to the trial court for an evidentiary hearing to determine whether defense counsel failed to move to suppress the evidence pertaining to the victim’s body as was done by counsel for appellant’s co-defendants, and if so, whether such failure constituted a denial of appellant’s right to effective aid of counsel.

Reversed and remanded.

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    SIMS CRANE SERVICE, INC., a Florida Corporation, Appellant, v. AM-CAL CONSTRUCTION COMPANY, a Foreign Corporation, and Leo T. Cote, Appellees.
    No. HH-384.
    District Court of Appeal of Florida, First District.
    May 19, 1978.
    Rehearing Denied June 13, 1978.
    Carl D. Dawson, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Robert L. Cowles, of Cowles, Coker & Myers; Joseph 0. Stroud, Jr., of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellees.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the order appealed is affirmed.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

The third party complaint in this case, states a cause of action and should not have been dismissed. Florida Gas Company v. Spaulding, 243 So.2d 129 (Fla.1970); Sunspan Engineering and Construction Company v. Spring-Lock Scaffold Company, 310 So.2d 4 (Fla.1975); Florida Power Corp. v. Taylor, 332 So.2d 687 (Fla. 2nd DCA 1976).


author: HENDRY, Judge.

text:
    Sidney KESSLER, Appellant, v. Nathan S. GUMENICK, Harry Grandis and Jerome Gumenick, a partnership, d/b/a Southgate Towers Hotel and Apartments, and Home Insurance Company, Appellees.
    No. 77-285.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.

      Herman Grayson, Miami Beach and Frank M. Brezina, Miami, for appellant.
    Horton, Perse & Ginsberg, Hawkesworth, Schmick, Ponzoli & Wassenberg, Miami, for appellees.
    Before PEARSON and HENDRY, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant/plaintiff appeals from an “order granting motion for summary judgment” in favor of appellees/defendants in a negligence action that can be categorized as a “slip and fall.”

Appellant contends that there were genuine issues of material fact left unresolved by the trial judgment thus precluding the entrance of a summary judgment. We disagree with appellant’s contention; however, before discussing the merits, we note that from a procedural standpoint, the order appealed is but an order granting a motion and is not appealable as such. Accordingly, as urged by counsel for appellees, this appeal should be, and is hereby dismissed. Shupack v. Allstate Insurance Company, 356 So.2d 1298 (Fla. 3d DCA 1978); see also Florida Roofing & Sheet Metal Contractors Self-Insurers Fund v. Citizens National Bank of Orlando, 223 So.2d 757 (Fla. 4th DCA 1969); Harris v. Mosteller, 253 So.2d 275 (Fla. 2d DCA 1971); and Washington Security Co. v. Tracy’s Plumbing & Pumps, Inc., 166 So.2d 680 (Fla. 2d DCA 1964).

For the sake of argument, a properly entered final summary judgment would have nevertheless been affirmed. While appellant did present an issue of fact as to whether or not there existed water on the floor directly in front of the apartment house elevator (apparently tracked into the building via bathers returning from the apartment’s swimming pool) thereby causing a hazardous condition, the record is completely devoid of any evidence, either direct or circumstantial, addressed to the issue of whether or not appellees had either actual or constructive knowledge of the danger prior to the time of appellant’s slip and fall and thus, could have with reasonable diligence, remedied the situation. In that no proof was offered with respect to the knowledge of appellees, it is our opinion that, sub judice, appellant failed to present a prima facie case of negligence. Padilla v. Tulso Enterprises, Inc., 307 So.2d 884 (Fla. 3d DCA 1974); Haley v. Harvey Building Inc., 168 So.2d 330 (Fla. 2d DCA 1964). Accordingly, a summary final judgment would have been proper.

For the reason stated at the' outset, this appeal is dismissed.

Appeal dismissed.


author: KEHOE, Judge.

text:
    Ricardo CABEZA, Appellant, v. Lina CABEZA, Appellee.
    No. 77-416.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Arango & Galarraga, Coral Gables, for appellant.

      Lopez & Saldise and Carlos L. DeZayas, Miami, for appellee.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, respondent below, brings this appeal from an order on petition for modification of final decree awarding appellee, petitioner below, the exclusive use and possession of the marital home and requiring appellant to pay the mortgage payments on the home.

After a careful review of the entire record, we are of the opinion that the trial court lacked jurisdiction to enter the order appealed and that, even if it had jurisdiction, appellee was not entitled to possession of the home. See Nahoom v. Nahoom, 341 So.2d 257 (Fla. 3d DCA 1977); Church v. Church, 338 So.2d 544 (Fla. 3d DCA 1976); Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976); Collazo v. Collazo, 318 So.2d 104 (Fla. 3d DCA 1975); and Vandervoort v. Vandervoort, 277 So.2d 43 (Fla. 3d DCA 1973). Accordingly, the order appealed is reversed.

Reversed.


text:
    Willie T. BAILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-557.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., PEARSON, J., and CRAWFORD, GRADY L., (Ret.), Associate Judge.
   PER CURIAM.

On this appeal from a revocation of probation, the defendant urges that the trial court erred in admitting into evidence a statement obtained from the appellant by police officers after appellant was taken into custody where the State did not establish that such statement was made after the appellant had been advised of his right to remain silent and his right to counsel. Extended argument is made on the necessity for Miranda warnings to a defendant charged with a violation of probation. See State v. Heath, 343 So.2d 13 (Fla.1977).

We do not reach this point because we find in the record testimony that the “Miranda rights” were given to the defendant prior to his statement. At the revocation hearing, the objection of defendant was only that “no proper predicate” was laid for the introduction of defendant’s statement to the officer. The objection is too general to raise the point now argued which is based upon the proposition that a general statement of the giving of “Miranda rights” is not sufficient to show compliance with the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

A point directed to the sufficiency of the affidavit of violation of probation is without merit. See Simmons v. State, 287 So.2d 720 (Fla.3d DCA 1974).

Affirmed.


text:
    Willie B. HALL and Cora D. Hall, Appellants, v. UNIVERSAL DRY WALL, INC., and Travelers Insurance Company, Appellees.
    No. 77-846.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Abramson, Scremin, Mendigutia & Lib-man and Sidney Z. Brodie, Miami, for appellants.
    Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellees.
    Before HAVERFIELD, C. J., HUB-BART, J., and PARKER, J. GWYNN, (Ret.), Associate Judge.
   PER CURIAM.

Willie B. Hall and his wife, Cora D. Hall, take this interlocutory appeal from an order dismissing their complaint with prejudice as to the appellees, Universal Dry Wall, Inc. and Travelers Insurance Company.

The appellants filed this lawsuit alleging that Mr. Hall was seriously injured while riding as a passenger in a pick up truck owned by Universal Dry Wall and insured by Travelers. At the time of the accident, although Mr. Hall apparently was employed by Universal Dry Wall and engaged in duties within the course and scope of his employment, there are no allegations in the complaint so alleging.

In their complaint, the Halls sought damages against the appellees for injuries arising out of the accident. Dade County was also made a defendant below but is not a party to this appeal.

The appellees moved to dismiss the complaint on the ground that Mr. Hall was an employee of Universal Dry Wall at the time of the accident and has received and accepted workmen’s compensation benefits from his employer and therefore the appellees were legally immune from the claims brought against them in this lawsuit. The trial court agreed and dismissed the com-| plaint with prejudice as to the appellees. This interlocutory appeal followed.

We reverse on the authority of Preston v. Grant Advertising, Inc., 166 So.2d 219, 222 (Fla.3d DCA 1964) where we stated:

“The allegation of the defendant as to the Workmen’s Compensation Law is a matter of defense and not properly the subject of a motion to dismiss. See Southeastern Title and Insurance Company v. Curtis, Fla.App.1963, 155 So.2d 855.-."

The appellees’ assertion that they are immune from suit as a result of their payment of workmen’s compensation benefits to the appellant is not a proper ground for a motion to dismiss. Nor have any recent amendments to the Florida Rules of Civil Procedure abrogated or modified the law on this point.

The trial court erred by dismissing the appellants’ complaint with prejudice. This cause is remanded with directions to reinstate the complaint.

Reversed and remanded.


text:
    Margaret MARHEFKA and John Marhefka, her husband, Appellants, v. MONTE CARLO MANAGEMENT CORPORATION, and the Old Republic Insurance Company, Appellees.
    Nos. 77-908, 77-909 and 77-928.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellants.
    Rentz, McClellan & Haggard, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

This appeal is by the plaintiffs below from an order and a judgment by which their second amended complaint was dismissed with prejudice. We find error and reverse.

The appellants filed a complaint against Monte Carlo Management Corporation, doing business as Monte Carlo Hotel, and its liability insurer, for damages for personal injuries suffered by Margaret Marhefka, herein referred to as the plaintiff, and for derivative damages resulting to her husband.

By the second amended complaint it was alleged that at the time of the incident involved the plaintiffs, who were residents of New Jersey, were guests of the Monte Carlo Hotel, as defined in Section 509.-013(3), Florida Statutes (1975); that as a means by which guests of the hotel were furnished access to the Atlantic Ocean the defendant had constructed and maintained “a set of wooden steps leading from the pool-cabana area of said hotel down to the beach”; that the defendant invited its guests to use and enjoy the beach and ocean and had advertised that said beach and ocean were available to its guests; that the steps were owned by and under the exclusive care and control of the defendant; that when the ocean tide was high the steps extended into the water, in which debris, logs and other partially submerged articles collected; that the wooden steps leading into the water were not protected from the debris at such times and were a dangerous condition; that the defendant did not close such steps to use by its guests during periods of high tide, and did not warn its guests of the above described dangerous condition of the steps, which was known or should have been known to defendant; further that defendant was negligent by failing to barricade or otherwise block use of the steps by its guests during such periods, in which the use thereof was thus dangerous, as it was known or should have been known to the defendant; that while the plaintiff was using said steps to descend to the ocean beach area she was struck violently and forcibly by a floating wooden plank causing her injuries.

The defendants moved to dismiss, stating as grounds that the amended complaint failed to state a cause of action, failed to disclose any duty owed by the defendant to the plaintiff, and failed to state any relationship between the action of the debris in the ocean and the steps. After hearing, the court entered an order on March 31, 1977 granting defendants’ motion and dismissing the second amended complaint with prejudice. Plaintiffs filed appeals Nos. 77-909 and 77-925 from that dismissal order. The court entered a second order, entitled Final Judgment, on April 18, 1977, which also dismissed the second amended complaint with prejudice, and entered judgment for the defendants on the basis of said dismissal. The plaintiffs filed appeal No. 77-908 from the latter order. The dismissal of the action with prejudice was error.

The defendant was under a duty to the hotel guests to maintain the premises in a reasonably safe condition. That duty extended to the means which the defendant had provided expressly for use by the hotel guests for ingress to the ocean beach area, and the complaint alleged a dangerous condition of the latter as a breach of the defendant’s duty to the plaintiff hotel guest. Whether such occurred involved factual questions to be determined by the trier of the facts.

In McNulty v. Hurley, 97 So.2d 185, 187 (Fla.1957) the Supreme Court said:

". . . The owner or occupant owes an invitee the duty of keeping the premises in a reasonably safe condition, and, as plaintiff contends, also to guard against subjecting such person to dangers of which the owner or occupant is cognizant or might reasonably have foreseen. First Federal Sav. & Loan Ass’n v. Wylie, Fla. 1950, 46 So.2d 396 and Messner v. Webb’s City, Inc., Fla.1952, 62 So.2d 66.”

The position taken by the defendant-ap-pellee was that the duty of the defendant to its hotel guests to keep the premises in a reasonably safe condition did not extend beyond its premises, and could not be extended to the steps facility which were not shown to be on its premises. That proposition is not applicable to the steps involved in this case where, as alleged, the steps were furnished by the hotel operator as the exclusive means of access to the ocean from its property, and when such facility represented an invitation to its guests to use that means for ingress and egress between its property and the immediately adjacent beach (at low tide) and to the ocean waters (at high tide). Shields v. Food Fair Stores of Florida, 106 So.2d 90, 92 (Fla. 3d DCA 1958); Reed v. Ingham, 125 So.2d 301 (Fla. 2d DCA 1961); Thompson v. Ward Enterprises, 341 So.2d 837, 839 (Fla. 3d DCA 1977).

In Shields v. Food Fair Stores of Florida, supra, an operator of a supermarket had provided and maintained a short entrance driveway connecting its parking area to a nearby street, for use of its customers as an invited means of entering its premises from the street. It was alleged the connecting road section was negligently maintained by the defendant and had become dangerous, and that the plaintiff customer using it to enter defendant’s premises from the street, while riding a bicycle, had been caused to fall and become injured due to the defective condition of the connecting roadway. In Shields the plaintiff-appellant argued that the duty of the defendant to its invitees to maintain its premises in a reasonably safe condition, which includes the need to provide reasonably safe entrances and exits, requires that the conditions it provides for use of its customers leading into or away from its premises likewise should be maintained in a reasonably safe condition. In that case, as here, the defendant contended its duty did not extend beyond its property line. That contention was rejected, and the dismissal of the complaint was reversed in Shields, in which this court said:

“The appellee met that argument obliquely, by contending that an occupant of premises is under no obligation to maintain in a state of repair a public street adjacent to his premises and is not liable for injuries to passers-by from defects so located, citing numerous authorities bearing on that point.
The duty owed to invitees by an occupier of premises to maintain them in a reasonably safe condition includes and extends to approaches to the premises which are open to invitees in connection with their business on the premises, and which approaches are so located and constituted as to represent an invitation to visit the place of business and to use such means of approach. (Citations omitted)
While the authorities state the rule in general terms and show its application to approaches in or adjacent to buildings, there is no reason why the rule will not apply with equal force to approaches to a parking area supplied by a store-owner for use of invitees. Moreover, the amended complaint alleged actual maintenance of this entranceway connecting the parking area of the appellee to the street.”

For the reasons stated, the judgment is reversed and the cause is remanded for further proceedings.


text:
    Eduardo OCHOA and Iowa Mutual Insurance Company, Appellants, v. Fernando LOPEZ, Appellee.
    No. 77-1141.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.

      Stephens & Schwartz, Joe N. Unger, Miami, for appellants.
    Horton, Perse & Ginsberg, Stabinski, Funt, Tucker & Levine, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and PARKER, J. GWYNN • (Ret.), Associate Judge.
   KEHOE, Judge.

This is an appeal by defendants, Eduardo Ochoa and Iowa Mutual Insurance Company (Iowa Mutual), of a final judgment awarding damages to appellee Fernando Lopez, plaintiff below, in a personal injury action arising from an automobile accident. The accident occurred when four young men were traveling home to Miami from college in North Carolina. Lopez was riding as a passenger in his own car at the time of the accident. His car was being driven by Ochoa whose negligence in causing the accident was uncontested at trial. Iowa Mutual was Lopez’s insurer. The only issues presented by this appeal concern the propriety of the damage award and the liability of Iowa Mutual for personal injury protection (PIP) benefits under the policy it had issued to Lopez.

Appellants contend that the trial court committed prejudicial error in instructing the jury that it could consider, as an element of appellee’s damages, his claim for loss of ability to earn money in the future. Appellants argue that the amount of the damages awarded for loss of future earnings was based on speculative evidence. A careful review of the record reveals that this argument is without merit. In our opinion, there was substantial competent evidence adduced at trial to support the .jury’s verdict; therefore, the award was not based on speculative evidence.

Appellants also contend that the trial court erred in directing a verdict awarding PIP benefits to appellee under Florida law. The Florida Automobile Reparations Reform Act mandates that every motor vehicle which is required to be registered in Florida must be covered by an insurance policy' which provides PIP benefits. See Section 627.731, .733, and .736, Florida Statutes (1975). The Motor Vehicle Licenses Law, Section 320.02(1), Florida Statutes (1975), requires every owner of a motor vehicle operated or maintained in this state to apply for registration of that vehicle in Florida. Therefore, the central issue determinative of Iowa Mutual’s liability for PIP benefits was whether the Lopez car was required to be registered in Florida.

The evidence showed that the vehicle was purchased, registered and licensed in North Carolina, and, until the day of the accident, had been driven primarily in North Carolina. The policy was issued in that state. It contained no provision for PIP coverage, nor was a premium charged for it. Although Lopez was a temporary resident of North Carolina, he held a Florida driver’s license and was a permanent resident of Miami, Florida.

The issue of whether the Lopez car was required to be registered in Florida presented questions of fact not resolvable pursuant to a motion for a directed verdict. A directed verdict should not be entered if the evidence permits different reasonable inferences. Riccio v. Allstate Insurance Co., 357 So.2d 420 (Fla. 3d DCA, opinion filed March 14,1978). Therefore, we reverse the directed verdict, and remand the case to the trial court with directions to try the narrow issue of whether the vehicle was required to be registered in Florida.

Affirmed in part, reversed in part, and remanded with directions.


text:
    Tsuong R. SHIEH, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Daniel Frost, and the State of Florida, Florida Highway Patrol, and D. D. Cole, Appellees.
    No. 77-1220.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    S. Peter Capua, Miami, for appellant.
    Stuart L. Simon, County Atty., and Mark A. Dresnick, Asst. County Atty., for appel-lees.
    Before PEARSON and HUBBART, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

The summary final judgment is affirmed upon authority of the rule stated in Kaiser v. State, 328 So.2d 570 (Fla. 3d DCA 1976). The denial of the appellant’s motion for rehearing is affirmed upon authority of Maryland Casualty Company v. Murphy, 342 So.2d 1051 (Fla. 3d DCA 1977).

Affirmed.


text:
    Abraham LEIBISKI and Naomi Leibiski, Appellants, v. The CONCORD FLORIDA, INC., etc., et al., Appellees.
    No. 77-1457.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Jay Dermer, Miami Beach, Joe N. Unger, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before HENDRY and BARKDULL, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Stark v. Vazquez, 168 So.2d 140 (Fla.1964); Metropolitan Dade County v. Espinosa, 344 So.2d 1290 (Fla. 3d DCA 1977); Taylor v. Craig, 354 So.2d 105 (Fla. 3d DCA 1978).


text:
    Leroy A. HIPKINS, Appellant, v. CITY OF MIAMI, etc., Appellee.
    No. 77-1522.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.

      J. E. Ludiek, North Miami, for appellant.
    George F. Knox, Jr., City Atty. and Clinton J. Pitts, Asst. City Atty., Miami, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See, e. g., Sapp v. City of Tallahassee, 348 So.2d 363 (Fla. 1st DCA 1977), and Henderson v. City of St. Petersburg, 247 So.2d 23 (Fla. 2d DCA 1971). See generally Florida First National Bank v. City of Jacksonville, 310 So.2d 19 (Fla. 1st DCA 1975), and Annot., 46 A.L.R.3d 1084 (1972).


text:
    Nancy HERNANDEZ, Appellant, v. METROPOLITAN DADE COUNTY, etc., Appellee.
    No. 77-1552.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Eugene P. Spellman and Denis Dean, Miami, for appellant.
    Stuart Simon, County Atty. and Amy N. Dean, Asst. County Atty., for appellee.
    Before PEARSON,, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. Metropolitan Dade County v. Marusa, 295 So.2d 704 (Fla. 3d DCA 1974); Metropolitan Dade County v. Corozzo, 212 So.2d 891 (Fla. 3d DCA 1968); McKim v. McNayr, 168 So.2d 78 (Fla. 3d DCA 1964).


author: HAVERFIELD, Chief Judge.

text:
    Steven Joseph HOMER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1561.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.

      Robert S. Appleton, Marathon, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAYERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   HAVERFIELD, Chief Judge.

Defendant, Steven Joseph Homer, seeks reversal of an order withholding adjudication of guilt upon a jury verdict of guilty of vehicular homicide [Section 782.071, Florida Statutes (1976)], placing him on 7 years probation and fining him $5,000.

Homer first urges as reversible error the court’s denial of his motion to discharge for failure to afford him a speedy trial pursuant to Fla.R.Crim.P. 3.191. The facts relevant to this issue are as follows:

On the night of July 4, 1976, the vehicle operated by Homer struck a pedestrian who was standing near the middle of the highway and threw her across the road. She was then run over by a second vehicle which approached simultaneously in the opposite direction and was declared dead on the scene. Homer was initially charged with driving under the influence of alcoholic beverages [Section 316.028, Florida Statutes (1975)] and trial was set on this charge for September 14. However, Homer’s attorney requested a continuance until September 17 and a notice resetting the trial on that date was sent out by the court. The trial date was again continued to October 15. On September 27 the state filed an information charging Homer with vehicular homicide and on October 8 entered a nolle prosequi as to the driving under the influence charge. Trial on the vehicular homicide was set for February 7, 1977 and on January 31 Homer filed his motion for discharge on the ground that 180 days had already elapsed since he had been taken into custody as a result of the incident upon which the vehicular homicide charge was based and, therefore, he had been denied his right to a speedy trial under Fla.R.Crim.P. 3.191. The motion was denied and a jury trial ensued at the conclusion of which the jury found Homer guilty of vehicular homicide.

Where a continuance has been granted, the time limitations under Fla.R. Crim.P. 3.191 (the speedy trial rule) are no longer applicable and the court then has the right and authority to set the case for trial within a reasonable time. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Rosenwasser v. Smith, 308 So.2d 600 (Fla.3d DCA 1975). When Homer requested and was granted a continuance, the time limitations under the speedy trial rule were waived. We further note that the filing of the new information for vehicular homicide, subsequent to the continuance granted to Homer on the initial driving under the influence charge, did not vitiate his waiver or revive the 180 day limitation inasmuch as the charges in both informations were based upon the same conduct or criminal episode. See Clark v. State, 318 So.2d 513 (Fla.4th DCA 1975); State v. Luck, 336 So.2d 464 (Fla.4th DCA 1976). Last, when a continuance is granted, a rule of reasonableness is applicable and the court is vested with discretion in determining whether or not a delay in a particular case has prejudiced a defendant or subjected him to undue pretrial oppression and anxiety. King v. State, 303 So.2d 389 (Fla.3d DCA 1974). Homer has not argued that the trial court abused its discretion in setting the ease for trial on February 7, 1977, that his case was prejudiced as a result, or he was subject to undue pretrial oppression and anxiety.

Homer next argues that the trial court erred in permitting the state to introduce photographs at the trial which were not made available to him for inspection in response to his motion for discovery. We cannot agree.

Pursuant to Homer’s requests for discovery, the state responded that certain evidence, including the accident report, was at the state attorney’s office or the Florida Highway Patrol station in Marathon. Homer’s counsel was shown a copy of the accident report which referred to 55 photographs which at the time had been forwarded to Tallahassee. Although counsel was thereby made aware of the existence of the photographs, he never moved to compel their production prior to trial. In addition, prior to their introduction, the trial court permitted Homer’s counsel to view the photographs and to speak with the witness who took them. See Richardson v. State, 246 So.2d 771 (Fla.1971); Spradley v. State, 293 So.2d 697 (Fla.1974).

Homer also contends that the trial court erred in denying his motion for judgment of acquittal.

There being sufficient evidence as to Homer’s drinking on the night of the accident and his vehicle’s mechanical defects, the court correctly denied his motion for acquittal. See Garmise v. State, 311 So.2d 747 (Fla.3d DCA 1975).

We also examined Homer’s remaining points and conclude no reversible error has been made to appear.

Affirmed.


text:
    Herbert W. VIRGIN, III, and Chester E. Whittle, Jr., Appellants, v. Robert H. SLATKO, Appellee.
    No. 77-1600.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Rehearing Denied June 15, 1978.

      Podhurst, Orseck & Parks and Michael S. Olin, Miami, for appellants.
    Sam Speetor, Tallahassee and Arthur E. Huttoe, Miami, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

This interlocutory appeal is from an order for an accounting. The main thrust of the appeal is that the trial judge misconstrued the contracts between the parties. We hold that an accounting was properly ordered under the law concerning partnership contracts set forth in Frates v. Nichols, 140 So.2d 321 (Fla.3d DCA 1962). See also Obel v. Henshaw, 130 So.2d 892 (Fla.3d DCA 1961).

A second question presented is whether the order properly included “good will” as an asset of the partnership. As a general proposition, a business dependent solely upon the personal and professional qualifications of the persons carrying it on does not possess “good will.” See Bailly v. Betti, 241 N.Y. 22, 148 N.E. 776 (1925); Cook v. Lauten, 1 Ill.App.2d 255, 117 N.E.2d 414 (1954); and Siddall v. Keating, 8 A.D.2d 44, 185 N.Y.S.2d 630 (1959). We hold that the evidence before the trial court does not bring the present dissolution within the meaning of the provisions in the first partnership contract, which provided for “good will” only upon the “ . . . retirement of a partner, loss of license of a partner, or the death of a partner . . . ” Therefore, in that particular only, the order appealed is reversed. . In all other particulars, the order appealed is affirmed.

Affirmed in part, reversed in part and remanded for further proceedings in accordance with the order appealed, as modified.


text:
    Sadie LOVE, Petitioner, v. Ira S. JACOBSON, M.D., North Dade Hospital, Inc., and the Honorable Boyce F. Ezell, Jr., Respondents.
    No. 77-2208.
    District Court of Appeal of Florida, Third District. .
    May 23, 1978.
    See also, Fla.App., 343 So.2d 1328 and, Fla., 352 So.2d 172.

      Cohen & Kokus and Linda Koenigsberg, Miami, for petitioner.
    Fowler, White, Burnett, Hurley, Banick & Knight and Thomas F. Martin, Miami, Howard E. Barwick and M. Lee Gay, Jr., Miami Shores, for respondents.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is an original petition for a writ of certiorari challenging the jurisdiction of the medical mediation panel to entertain a medical malpractice claim under Section 768.44, Florida Statutes (1977). We have jurisdiction to entertain the petition. Art. V, § 4(b)(3), Fla.Const.; Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977).

The issue presented for review is whether a medical mediation panel has jurisdiction to hear a medical malpractice claim under Section 768.44(3), Florida Statutes (1977), where a hearing on said claim has commenced, but has not concluded within ten months of the date the claim was filed due to the alleged delaying tactics of the claimant. We hold that the medical mediation panel under said circumstances has lost jurisdiction to hear such medical malpractice claim after the expiration of the ten month statutory period under Section 768.44(3), Florida Statutes (1977). Accordingly, we grant the petition for a writ of certiorari herein.

It appears without dispute that on June 29, 1976, the petitioner Sadie Love filed a medical malpractice claim under Section 768.44, Florida Statutes (1977), against the respondents Dr. Ira S. Jacobson and North Dade Hospital, Inc. in the Circuit Court for the Eleventh Judicial Circuit of Florida. The claim fell before a medical mediation panel under the above statute in which the respondent circuit judge was the judicial referee.

Under Section 768.44(3), Florida Statutes (1977), the last day on which the petitioner’s claim could be heard was ten months from the date the claim was filed, to wit: April 29, 1977. Part of that ten month period, however, was stayed by this court’s issuance of a rule nisi in a prior prohibition action in this case, which rule was subsequently quashed. State ex rel. Love v. Jacobson, 343 So.2d 1328 (Fla. 3d DCA 1977). This stay necessarily meant that the ten month period expired on July 1, 1977.

On June 21, 1977, the mediation panel herein commenced a hearing on the petitioner’s claim but was unable to conclude the matter and had to continue the hearing to another date. A defective petition for writ of prohibition subsequently filed by the petitioner Love attempted to challenge the panel’s jurisdiction to proceed, but this court dismissed the petition as failing to state a prima facie case.

On July 18, 1977, the hearing before the mediation panel was resumed but again was not concluded and had to be continued to November 8, 1977. On September 27,1977, the petitioner Love filed a motion which in effect sought to terminate the jurisdiction of the mediation panel; the motion was denied by the judicial referee. The petitioner Love then filed the instant petition for a writ of certiorari which properly challenges the jurisdiction of the mediation panel to hear her claim under Section 768.-44(3), Florida Statutes (1977).

The law is well-settled that a medical mediation panel has no jurisdiction to entertain a medical malpractice claim under Section 768.44, Florida Statutes (1977), “[i]f no hearing on the merits is held within 10 months of the date the claim is filed . . § 768.44(3), Fla.Stat. (1977). Such hearing must be concluded before the expiration of the above ten month statutory period. Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977); Aldana v. Holub, 354 So.2d 1272 (Fla. 1st DCA 1978); Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977).

The only exception recognized by some but not all of the cases to the strict ten month statutory period has been limited to the unique case where a judicial referee at the instance of the claimant stayed the panel proceedings pending a decision of the Florida Supreme Court in Carter v. Sparkman, 335 So.2d 802 (Fla.1976), on the constitutionality of Section 768.44, Florida Statutes (1977). State ex rel. Lund v. Keough, 352 So.2d 572 (Fla. 2d DCA 1977); State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla. 3d DCA 1977); State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977). These decisions were rendered during the early existence of the medical mediation statute when its constitutionality was very much in doubt. It was felt in these eases that the judicial referee’s action was reasonable under the circumstances because had the Carter decision gone the other way a good deal of unnecessary labor by judicial referees and mediation panels would have been avoided. Even in this line of cases, this court was careful to point out that the exception recognized therein would not occur again and could not later be broadened or expanded. The court stated in State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla. 3d DCA 1977), as follows:

“Since the circuit judge in this case and in the Mercy Hospital case entered their stay or transfer orders under the peculiar circumstances of awaiting a Florida Supreme Court decision on the constitutionality of the Medical Malpractice Reform Act, it is clear that these or similar circumstances will never again occur. The ten month statutory limit for holding medical malpractice mediation hearings is clear and unequivocal. It should be rigidly enforced so as to mitigate the plaintiff’s pre-litigation burden imposed by the Act.” Id. at 626-27.

Other courts have declined to expand the exception recognized by the above cases beyond the limited facts therein involved so as to create a broader or new exception to the ten month statutory period under Section 768.44(3), Florida Statutes (1977). In fact, these courts have been critical of the results reached by the earlier line of cases and have underlined further the Florida courts’ strict adherence to the ten month statutory period within which a medical mediation claim must be heard by the mediation panel. Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA, 1977); Aldana v. Holub, 354 So.2d 1272 (Fla. 1st DCA 1978).

In the instant case, the petitioner’s medical malpractice claim was filed before a medical mediation panel and has been pending there for a period of time in excess of ten months. Although a hearing was commenced prior to the expiration of the statutory ten month period, that hearing was not concluded and the ten month period has subsequently expired.

The respondents Jacobson and North Dade Hospital contend that some of the delays in bringing this claim to hearing were in part attributable to the plaintiff herself. We pass no judgment on whether this claim has any merit because we believe it to be irrelevant. It matters not who is responsible for the delay in the progress of the medical mediation panel, the statute involved is clear and unequivocal that the medical mediation panel loses jurisdiction to proceed on a medical malpractice claim under Section 768.44(3), Florida Statutes (1977), when ten months expire from the date of the filing of the claim and no hearing has been held thereon. Such a hearing must be concluded prior to the ten month period which has not been accomplished in this case.

The result reached in this case as well as other cases in this state emphasizes the extreme necessity on the part of the judicial referee to move the medical malpractice claims along to fruition according to the strict time guidelines laid down by Section 768.44(3), Florida Statutes (1977). The Supreme Court of Florida in Carter v. Sparkman, supra, has made it clear that the ten month statutory period represents the outer limits of constitutional tolerance as a pre-litigation burden on the plaintiff’s constitutional right' of access to the courts. Carter v. Sparkman, 335 So.2d 802, 806 (Fla.1976).

The petition for writ of certiorari is granted, the order under review is quashed and the cause is remanded to the judicial referee with directions to terminate the jurisdiction of the medical mediation panel to hear the petitioner’s medical malpractice claim herein.


author: BOARDMAN, Chief Judge.

text:
    Wilfred A. BANNISTER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 78-245.
    District Court of Appeal of Florida, Second District.
    May 24, 1978.

      Joseph B. Whitebread, Jr., of Dempsey & Slaughter, Tampa, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for respondent.
   BOARDMAN, Chief Judge.

Petitioner Wilfred A. Bannister, Jr., has come to this court seeking review of an order taxing costs. We have examined his arguments and find that they have merit. Accordingly, we grant certiorari.

The state sought permission from the trial court to have a psychiatrist examine petitioner who was relying on an insanity defense in his trial on charges of sexual battery and kidnapping. Petitioner’s counsel agreed to the examination on the condition that he be allowed to be present during the interview. The court ruled that petitioner’s counsel could be present at the examination.

Although the record is unclear, it appears that the state attorney’s office informed petitioner’s counsel’s secretary of the time for which the examination of petitioner was set, but that she never gave the message to counsel. In any event when the psychiatrist employed by the state attorney arrived from Miami to interview petitioner, defense counsel was not present and when contacted refused to waive his right to be present. Petitioner refused to talk to the psychiatrist. The psychiatrist returned to Miami without examining petitioner and sent a bill to the state attorney for his time and expenses totaling $1,220. The state thereafter filed a motion to tax the psychiatrist’s bill to petitioner, and the trial court granted that motion.

In reviewing the court’s order, we take no position as to who was at fault in this episode. We reverse solely on the ground that we do not believe that the trial court had the power to require petitioner to pay the psychiatrist’s fee and expenses either as a sanction or as costs.

Although the state’s motion was styled a motion to tax costs, it appears that it was intended as a request for imposition of a sanction rather than costs in the strict sense and was considered by the trial court as a request for a sanction. Florida Rule of Criminal Procedure 3.220(j) controls the imposition of sanctions for failure to abide by rules of discovery in criminal cases, and it provides that the court may impose sanctions only when a party has violated a discovery rule. We are unable to find any discovery rule which would have compelled a psychiatrist examination of petitioner. Certainly, Florida Rule of Criminal Procedure 3.220 does not. Furthermore, at the time the state sought to examine petitioner Florida Rule of Criminal Procedure 3.210, which pertains to examination of a defendant who asserts an insanity defense, stood repealed by Section 918.017, Florida Statutes (1977).

Even if we treat Rule 3.210 as a rule of discovery and if it had been effective at the time this controversy arose, petitioner is not subject to imposition of a sanction because he did not violate nor fail to comply with the rule. Under Rule 3.210 when a defendant raises the defense of insanity at the time of the offense the court must allow the state attorney’s psychiatric expert witness access to the defendant for examination and observation. The court, however, cannot compel the defendant to cooperate with the psychiatrist by answering questions posed as part of the mental examination. Parkin v. State, 222 So.2d 457 (Fla. 1st DCA 1969); see State v. Battle, 302 So.2d 782 (Fla. 2d DCA 1974). Nonetheless, the state is not disadvantaged in this regard since in appropriate circumstances, such as total noncooperation with any psychiatrist save his own, the court may properly refuse to admit any evidence propounded by the defendant relevant to the issue of his sanity. McMunn v. State, 264 So.2d 868 (Fla. 1st DCA 1972).

Viewing the motion by the state as a motion to tax costs, the trial court was also without authority to enter the order at issue here. The most obvious requirement not satisfied by these facts is that petitioner had not been convicted when the request was made or the order was entered. See § 939.01, Fla.Stat. Moreover, none of the statutes specifying taxable costs in a criminal proceeding pertain to examination of petitioner by the psychiatrist employed by the state attorney. The only expert witness fees taxable to a defendant as costs are those reasonable fees of an expert subpoenaed to appear and testify before the state attorney or of a court appointed psychiatrist who testifies in a criminal trial. §§ 90.231, 914.06, 918.11, Fla.Stat. In all other instances costs incurred by a witness in a criminal case, including one who qualifies and testifies as an expert, are taxable only to the extent authorized by Section 90.14, Florida Statutes, that is five dollars per day of attendance plus six cents per mile travel expenses. None of these statutes are applicable to the case before us.

We grant the petition for writ of certio-rari. We reverse the order taxing costs to the defense and remand the case for further proceedings consistent with this opinion.

HOBSON and RYDER, JJ., concur.

      . We of course do not consider whether the actions of petitioner and his counsel were such as could subject them to the contempt powers of the court. Suffice it to say, that if we were to view this order as a contempt citation, we would have to reverse on the ground that the court did not follow the procedures provided for contempt proceedings. See Fla.R.Crim.P. 3.840.

      . The Supreme Court of Florida has since declared § 918.017, Fla.Stat. (1977) to be unconstitutional, thereby reinstating Rule 3.210. State ex rel. Boyd v. Green, 355 So.2d 789 (Fla.1978).

      . An exception is the interstate extradition witness specifically provided for in §§ 942.01-06, Fla.Stat.


text:
    Sarah PATRICK, Appellant, v. Robert Eugene PATRICK, Appellee.
    No. II-32.
    District Court of Appeal of Florida, First District.
    May 26, 1978.

      T. Michael Jones of Selby, Chesser, Win-gard & Barr, Fort Walton Beach, for appellant.
    Harold F. Peek, Jr., Niceville, for appel-lee.
   PER CURIAM.

Wife appeals the trial court’s refusal to grant her a special equity in a grocery business owned by husband; she also appeals the court’s denial of her request for permanent alimony. Husband cross-appeals the court’s requirement that he maintain a $5,000 life insurance policy on himself with the wife as beneficiary. He contends in addition that the court erred in restricting his visitation rights with the parties’ minor child to the condition that no other person be in his home while the child is with him there. We affirm on the two points raised by wife and reverse on the points raised by husband’s cross-appeal.

A review of the record makes it clear that the trial court did not abuse its discretion in failing to award wife a special equity and permanent alimony. In addition to child support and rehabilitative alimony awards, she was given the parties’ mobile home free of encumbrances, a lump sum award, and attorney’s fees. There was testimony that she had recently obtained a real estate license and could with some additional education make a living in that occupation. Viewed as a whole, there was no error in the trial court’s adjustment of the equities between the parties.

There was error, however, in the requirement that husband keep a life insurance policy in force with wife as beneficiary. As this court held recently in Watterson v. Watterson, 353 So.2d 1185, 1190 (Fla. 1st DCA 1977): “There is nothing in the record to justify an award of alimony after death, and therefore it was error to require the husband to maintain life insurance on his life for the benefit of wife to provide support for her in the event of and after the husband’s death.” See also Todd v. Todd, 311 So.2d 769 (Fla. 1st DCA 1975) and Putman v. Putman, 154 So.2d 717 (Fla. 3d DCA 1963). This type of a requirement is particularly inappropriate where, as here, permanent alimony is not awarded in the judgment. Roberts v. Roberts, 283 So.2d 396 (Fla. 1st DCA 1973).

Finally, we reverse the court’s restriction of husband’s visitation privileges with his child. As written the appealed provision would prohibit the child from visiting husband’s home when doctors, preachers, cousins, or even grandparents were present. The limitation is clearly overbroad and must be stricken.

The judgment is therefore affirmed in part and reversed in part. Wife’s motion for appellate attorney’s fees is denied.

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


author: MELVIN, Judge.

text:
    Julian E. WHITING, Jr., and Frances B. Whiting, Appellants, v. The CITY OF TALLAHASSEE and West American Insurance Company, Appellees.
    No. II-72.
    District Court of Appeal of Florida, First District.
    May 26, 1978.
    Douglas L. Stowell, Sam Spector, of Spector & Tunnicliff, Tallahassee, for appellants.
    William S. Burns, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.
   MELVIN, Judge.

The trial court dismissed with prejudice appellants’ complaint seeking recovery from the city for property damage which occurred in their Tallahassee residence after the city failed, in spite of two requests by appellants, to terminate its water service to the house. The facts revealed by the complaint were that appellants had entered into a utility service contract with the city in 1973, commencing with payment of a security deposit and continuing with payment of the monthly bills as they became due. In October, 1976, appellants, who were moving, requested the city to terminate all utility service to their house. They received a final bill in November at their new residence indicating that service had been terminated. They paid this bill. In December, they returned to the house and discovered that water was still being furnished to it. They called the city and again requested that water service to the residence be terminated and that the faucets be left open. In January, 1977, they returned to the house and discovered broken water pipes and water leakage throughout.

Appellants alleged in their complaint against the city that the property damage in the house had been caused by “willful negligence and breach of contract in failing to turn off the water as requested . . The trial court dismissed the complaint with prejudice, finding that “the better expression of the law” was a 1931 Indiana case, Frankfort Waterworks Co. v. McBride, 92 Ind.App. 680, 175 N.E. 140 (1931), which held that a cause of action based upon a contract to “turn off the water” was insufficient because it “lacks the important element of a consideration and it lacks mutuality.” We find that the complaint states a cause of action and reverse.

The contract sued upon was not only the contract to turn off water, but was rather the larger contract between the parties by which they implicitly agreed that in exchange for the appellants’ security deposit, monthly payments, and final payment, the city would furnish, and terminate, service at the times requested by appellants. This contract had all necessary requisites of mutuality and consideration. Moreover, the city represented to the appellants in the final bill that water service had been terminated. It represented again that service would be terminated when appellants called the second time. Appellants allegedly relied on these representations to their detriment, and the damage which occurred was directly traceable to the city’s failure to do what it said it would do. We find that a cause of action was stated in contract and in negligence.

The order of dismissal is REVERSED and the case REMANDED for trial.

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


author: RYDER, Judge.

text:
    David McCLURE, Appellant, v. STATE of Florida, Appellee.
    No. 77-1748.
    District Court of Appeal of Florida, Second District.
    May 26, 1978.
    Jack 0. Johnson, Public Defender, and F. Linton Sloan, Jr., Sp. Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant contends the trial court erred in denying his motion to suppress certain evidence. We agree.

During the suppression hearing, the testimony disclosed that Police Sergeant Robert Foster was on patrol in an unmarked police unit during the early morning hours of March 1, 1977. As he drove past an apartment complex, he observed two men alight from a parked Volkswagen and walk to the apartment of one Samuel Anthony Mozola, Jr., who Foster described as a well-known drug dealer. Foster also noticed the men were watching him. After they entered the apartment he radioed for Officer Wak-owiak to come to the area as a backup. Wakowiak did so and parked in a street near the apartment complex.

Subsequently, the two men, who had earlier drawn Foster’s attention, left Mozola’s apartment, returned to their vehicle, and began to drive off. When their car came even with Wakowiak’s police cruiser, appellant, who was the driver, stopped and stared at Wakowiak for fifteen to thirty seconds. At this point, Wakowiak put on his overhead flashing light, left his patrol car, walked over to appellant and asked for his identification. After appellant produced his license, Officer Wakowiak noticed a plastic bag containing marijuana lying next to the driver’s seat. Officer Foster also noticed the marijuana as he attempted to ascertain appellant’s passenger’s identification. The officers arrested appellant for possession of marijuana to which charge he later pled nolo contendere reserving the right to appeal the denial of his motion to suppress.

As we have noted many times before, an investigatory detention is valid only when a police officer had a reasonable or founded suspicion of the presence of criminal activity. Foss v. State, 355 So.2d 225 (Fla.2d DCA 1978); Lower v. State, 348 So.2d 410 (Fla.2d DCA 1977); Lewis v. State, 337 So.2d 1031 (Fla.2d DCA 1976). Clearly, then Officer Wakowiak’s detention of appellant was improper. While appellant’s stare was most certainly annoying to Wakowiak, neither it nor the fact that appellant had visited a person alleged to be a drug dealer could serve as the basis for a founded suspicion of criminal activity. See Vollmer v. State, 337 So.2d 1024 (Fla.2d DCA 1974).

Since the detention initially was improper, the seizure of the marijuana was also illegal. Lower v. State, supra. Accordingly, we vacate the order withholding adjudication and placing appellant on probation and remand the case for further proceedings consistent with this opinion.

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


text:
    Mary L. HANEY, Appellant, v. Spencer A. HOLMES and Barbara J. Holmes, his wife, Appellees.
    No. 78-43.
    District Court of Appeal of Florida, Second District.
    May 26, 1978.
    W. K. Zewadski and Radford W. Smith of Zewadski & Smith, St. Petersburg, for appellant.
    Clark Stillwell of Tucker, Hicks, Blanchard, Brannen & Stillwell, P. A., Inverness, for appellees.
   PER CURIAM.

Mary L. Haney, plaintiff below, seeks to appeal an order which states “the Defendant’s Motion for Judgment on the Pleadings be in [sic] the same is hereby granted.” This is not a final decision, order, judgment or decree within the contemplation of Florida Appellate Rule 3.2(b). Likewise, this case is not one which formerly would have been cognizable in equity, so the order is not subject to an interlocutory appeal. Fla. R.App.P. 4.2(a).

Therefore, we have no jurisdiction, and this appeal is hereby dismissed sua sponte. Rizzuto v. DiPaolo, 357 So.2d 490 (Fla. 2d DCA 1978); Arnold v. Brady, 178 So.2d 732 (Fla. 2d DCA 1965).

BOARDMAN, C. J., and OTT and RYDER, JJ., concur.


text:
    Lola E. TURNER, Appellant, v. GENERAL INSURANCE COMPANY of Florida, Appellee.
    No. 77-1452.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Wolf son, Appel & Maram and Anthony J. Brown, Miami, for appellant.
    Batchelor, Brodnax, Guthrie & Primm and Robert A.- Freyer, Miami, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Griffin v. Stonewall Insurance Co., 346 So.2d 97 (Fla. 3d DCA 1977).


text:
    Raymond M. HAMRA, Appellant, v. Barbara HAMRA, Appellee.
    No. 77-1647.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    William J. Brown, Miami, for appellant.
    Markus, Winter & Spitale and Laurie Silvers, Miami, for appellee.
    Before HENDRY and BARKDULL, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Martinez v. Martinez, 153 Fla. 753, 15 So.2d 842 (1943).