author: ALDERMAN, Judge.

text:
    BLAW-KNOX FOOD & CHEMICAL EQUIPMENT CORPORATION and Travelers Insurance Companies, Appellants, v. Seavy L. HOLMES and Agnes J. Holmes, his wife, Frito Lay, Inc., and Fireman’s Fund American Insurance Companies, Appellees. BLAW-KNOX FOOD & CHEMICAL EQUIPMENT CORPORATION and White Consolidated Industries, Inc., Appellants, v. Seavy L. HOLMES and Agnes J. Holmes, his wife, Appellees.
    Nos. 76-1759 and 76-1760.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.

      Leon H. Handley, Janis M. Halker and David C. Beers of Gurney, Gurney & Hand-ley, Orlando, for appellants.
    James W. Markel, Alan F. Scott, Jr., and John L. Graham, Jr., Graham, Markel & Scott, Orlando, for appellee Seavy L. Holmes.
    John R. McDonough, Pitts, Eubanks, Ross & Rumberger, Orlando, for appellees Frito Lay, Inc., and Fireman’s Fund American Ins. Co.
   ALDERMAN, Judge.

Two appeals have been consolidated: Number 76-1760 is from a final judgment for Plaintiff-Appellee, Seavy L. Holmes, against Defendants-Appellants Blaw-Knox Food & Chemical Equipment Corporation and White Consolidated Industries, Inc.; Number 76-1759 is from a final judgment for Third Party Defendants-Appellees Frito Lay, Inc. and Fireman’s Fund American Insurance Companies against Third Party Plaintiffs-Appellants Blaw-Knox Food & Chemical Equipment Corporation and Travelers Insurance Companies. Although we find no reversible error, a number of issues have been raised which merit discussion, specifically those relating to legal or proximate cause, the patent danger doctrine, reduction of taxable costs by comparative negligence, and contribution.

The facts are as follows: Mr. Holmes, an employee of Frito Lay, in the course of his employment, fell from atop a plywood board into the kettle of a potato chip cooker filled with hot oil. The potato chip cooker, known as an M-15 Ferry Fryer, was manufactured and sold to Frito Lay by the J. D. Ferry Co. Defendant Blaw-Knox is the successor in interest to the J. D. Ferry Co. and is a subsidiary of Defendant White Consolidated. The M-15 is basically a long kettle covered by a hood which is hinged to the frame on one side. Potato slices are fed into the back of the cooker by a conveyor system. The slices drop into hot cooking oil and are moved through the cooker by a succession of three turning flow wheels made of perforated metal. The kettle rests on a frame over a firebox. The oil is pumped through pipes heated by hot air and is continuously circulated through the cooker. Each end of the shaft on each flow wheel rests inside a U-shaped bearing mounted to the angle-iron frame of the kettle.

Mr. Holmes knew that the flow wheel in the M-15 had a tendency to pop out of the bearing on one side. When this occurs, the wheel rests catty corner on the bottom of the kettle, the chips cannot pass and the temperature of the oil rises due to lack of circulation. If the flow wheel became dislodged on the hinge side of the cooker, the normal procedure was for an employee of Frito Lay to place a pallet board across the machine, climb out over the hot oil and manually replace the flow wheel shaft into the bearing. Mr. Holmes himself had personally been over the fryer on a board or seen others do so some 150 times during his employment with Frito Lay.

At the time of the accident, Mr. Holmes was the Production Manager of the Orlando plant. After being advised of a problem with the M-15, he went to the kitchen and observed that the temperature gauge on the cooker showed 475 degrees and there was hot oil on the floor. He turned off the burners and blowers, and someone opened the hood of the cooker. Mr. Holmes stood on a ladder and saw that the second flow wheel was out of its bearing on the hinge side of the machine. Someone placed a board across the kettle between the first and second flow wheels, and Mr. Holmes climbed on top of the board and walked across the kettle to the hinge side. He grabbed the flow wheel with some paper towels and with the aid of a flashlight located the bearing and replaced the flow wheel shaft. Still standing on the board he took a broomstick and began stirring the chips to clear the blockage. As he was walking across the board to get down, the board slipped and he fell into the hot oil.

Mr. Holmes in substance alleged that the defendants were negligent in that they:

(1) failed to design the machine so the flow wheels would remain intact;
(2) failed to establish procedures or devise a method whereby plaintiff could safely replace a dislodged flow wheel;
(3) failed to provide safeguard enclosures or other means of protection from the cooker: and
(4) failed to properly instruct the purchasers on the operation and maintenance of the cooker or to instruct on warnings that purchasers should give to their employees.

Under the doctrine of comparative negligence, the jury found that Mr. Holmes was 48% negligent and the defendants were 52% negligent. The trial court in the final judgment reduced the jury’s verdict by the degree of Mr. Holmes’ negligence. The jury, in its special verdict, also found that Blaw-Knox was guilty of active or primary negligence and that Frito Lay was guilty of passive or secondary negligence.

We turn now to a consideration of the legal issues in case number 76-1760. Blaw-Knox and White Consolidated contend that their alleged negligence, as a matter of law, was not a proximate or legal cause of Mr. Holmes’ injuries. A close question is presented. As a general rule, however, the issue of proximate or legal cause is for the jury to determine, unless the issue is so clear that reasonable men could not differ. Loftin v. Wilson, 67 So.2d 185 (Fla.1953). We recognize that there may be instances where the evidence is insufficient, and in those cases, the trial court may decide the issue as a matter of law, e. g., Courtney v. American Oil Co., 220 So.2d 675 (Fla.4th DCA 1968). In the present case, we conclude that the evidence was sufficient for the issue of proximate or legal cause to be submitted to the jury.

The defendants next contend that the trial court erred in not granting their motion for directed verdict based upon the patent danger doctrine. In support of this contention the defendants cite Farmhand, Inc. v. Brandies, 327 So.2d 76 (Fla.lst DCA 1976). The classic statement of the patent danger doctrine is that a “. .. . manufacturer is under no duty to render a machine or other article ‘more’ safe — as long as the danger to be avoided is obvious and patent to all.” Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802, 804 (1950). In Farmhand, the First District recognized that the holding of the New York court in Campo has been roundly criticized. It acknowledged that the Judicial Conference which recommended New York’s comparative negligence statute said that the patent danger rule should be considered as a factor to be weighed by the trier of fact in determining whether to diminish damage. At the time the Farmhand opinion was issued, February 11,1976, it remained to be seen whether the New York court could accept the transformation of the patent danger rule from an exception to liability to a mitigating affirmative defense.

On April 8, 1976 the Court of Appeals of New York announced, “The time has come to depart from the patent danger rule enunciated in Campo v. Scofield." The New York court in Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976), said:

Apace with advanced technology, a relaxation of the Campo stringency is advisable. A casting of increased responsibility upon the manufacturer, who stands in a superior position to recognize and cure defects, for improper conduct in the placement of finished products into the channels of commerce furthers the public interest. To this end, we hold that a manufacturer is obligated to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended .
We next examine the duty owing from a plaintiff or, in other words, the conduct on a plaintiff’s part which will bar recovery from a manufacturer. As now enunciated, the patent-danger doctrine should not, in and of itself, prevent a plaintiff from establishing his case. That does not mean, however, that the obviousness of the danger as a factor in the ultimate injury is thereby eliminated, for it must be remembered that in actions for negligent design, the ordinary rules of negligence apply . . . . Rather, the openness and obviousness of the danger should be available to the defendant on the issue of whether plaintiff exercised that degree of reasonable care as was required under the circumstances. (Citations omitted.) 384 N.Y.S.2d at 121-122, 348 N.E.2d at 577-578.

Deprived of its support from New York, the viability of the patent danger doctrine in Florida has further been put in doubt by the recent Florida Supreme Court opinion in Blackburn v. Dorta, 348 So.2d 287 (Fla., opinion filed May 4, 1977). In Blackburn, the Court held that the affirmative defense of assumption of risk is merged into the defense of contributory negligence, and that the principles of comparative negligence enunciated in Hoffman v. Jones, 280 So.2d 431 (Fla.1973), apply in all cases where such defense is asserted. The Court said there was no discernible basis analytically or historically to maintain a distinction between the affirmative defense of contributory negligence and assumption of risk. The Court found assumption of risk to be a viable, rational doctrine only in the sense that it connotes unreasonable conduct on the part of the plaintiff, which is equivalent to contributory negligence. The Court apparently accepted the argument that assumption of risk serves no purpose which is not subsumed by either the doctrine of contributory negligence or the common law concept of duty.

As suggested by the New York court in Micallef, the patent danger doctrine amounts to an assumption of risk defense as a matter of law, with the added disadvantage that the defendant is relieved of the burden of proving that the plaintiff subjectively appreciated a known risk. So, by the same rationale that the Supreme Court in Blackburn held that assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence, we now hold that the patent danger doctrine is also merged into the defense of contributory negligence and the principles of comparative negligence.

The defendants also contend, if the judgment against them is affirmed, that the court costs taxed against them should be apportioned according to fault under the principles of comparative negligence. This is the first time this issue has been presented to this court, but it has been decided by other appellate courts in Florida. Spicuglia v. Green, 302 So.2d 772 (Fla.2d DCA 1974), cert. den. 315 So.2d 193 (Fla.1975); Florida East Coast Ry. Co. v. Hunt, 322 So.2d 68 (Fla.3d DCA 1975). The defendants recognize that these precedents are contrary to their position, but urge us to adopt a different rule. We reject this suggestion and hold that in a comparative negligence situation where there is no counterclaim, as in the present case, there can be no apportionment of taxable costs according to fault under the principle of comparative negligence. We are not here faced with and have not considered the question of what the rule should be if there is a counterclaim. Compare: Spicuglia v. Green, supra.

Next, we consider an issue raised in case number 76-1759. Blaw-Knox contends that the trial court erred in directing a verdict in favor of Frito Lay on Blaw-Knox’s third party claim for contribution. This contention is without merit. Mr. Holmes was an employee of Frito Lay and was covered by and received benefits under the provisions of the Florida Workmen’s Compensation Act. The legislature has provided that the liability of an employer under the Workmen’s Compensation Act shall be exclusive and in place of all other liability of such employer. Section 440.-11(1), Florida Statutes (1975). The legislature further provided that there is a right of contribution between joint tort-feasors “when two or more persons become jointly or severally liable in tort for the same injury.” Section 768.31(2), Florida Statutes (1975). Because of the statutory exemption created by Section 440.11(1), we find that Blaw-Knox and Frito Lay, did not become “jointly or severally liable in tort for the same injury.”

We believe the applicable law is correctly stated in United Gas Pipeline Co. v. Gulf Power Co., 334 So.2d 310 (Fla.lst DCA 1976), and we adopt the view expressed therein that no right of contribution exists in favor of the third party tort-feasor because the workmen’s compensation employer and the third person are not under a common liability to the injured person, since the employer’s liability is imposed, as well as limited, by the provisions of the Workmen’s Compensation Act, while that of the third-person tort-feasor rests on the principles of negligence. See also Annot. 53 A.L.R.2d 977, 987 (1957).

A number of other points have been raised in both appeals. We have considered each of them and find no reversible error.

AFFIRMED.

ANSTEAD and DAUKSCH, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Henning HANSEN, Appellant, v. CENTRAL ADJUSTMENT BUREAU, INCORPORATED, a Foreign Corporation, authorized to do business in Florida, Appellee.
    No. 76-2077.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.

      William S. Isenberg, Fort Lauderdale, for appellant.
    Alan J. Kerben, Tampa, for appellee.
   ALDERMAN, Judge.

Plaintiff appeals an order dismissing with prejudice count two of his amended complaint. We find the complaint to be defective, but hold that plaintiff should be allowed an opportunity to amend.

Summarily stated, the complaint alleges that the defendant mailed to the plaintiff an envelope with a window-type opening, in which, directly above plaintiff’s name and address, appeared the word “Debtor”; that this was done with the intent of conveying the meaning that plaintiff was a confirmed and habitual debtor; that the words on the envelope were read by employees of the defendant as well as employees of the postal system, thereby exposing plaintiff to ridicule and distrust.

The applicable statute provides:

In collecting consumer claims, whether or not licensed by the division, no person shall:
(16) Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor. An example of this would be an envelope addressed to “Deadbeat, John Doe.”

Section 559.72, Florida Statutes (1975).

The defendant contended that the word “Debtor,” visible on the outside of the envelope addressed to the plaintiff, could in no way be construed to be a word calculated to embarrass the plaintiff. The defendant refers to the example given in the statute, of an envelope addressed to “Deadbeat, John Doe”, and argues that there is a manifest difference between the words “Deadbeat” and “Debtor”, and that as a matter of law the use of the word “Debtor” in the context of the statute is not actionable.

We disagree; the use of the word “Debt- or” may or may not be actionable depending upon the circumstances. For example: the contents of the letter may have been accidently folded so as to inadvertently cause the word to appear in the window of the envelope. On the other hand, the use of the word may have been a calculated attempt by the defendant to embarrass the plaintiff. While the term “Debtor” may have a legal meaning which is without derogatory connotation, for the general public the word is loaded with unpleasant associations and emotional overtones. It connotes one who is overdue in payments, who shirks his obligations, who has overextended his financial resources. The use of the word “Debtor” in the context of the statute may be actionable. The complaint sufficiently alleges that the defendant mailed a communication to the plaintiff with a word visible on the envelope calculated to embarrass the debtor.

If the use of the word “Debtor” were the only consideration, we would say that the trial court erred in dismissing count two; however, the complaint is defective in another respect. The statute begins with the qualification, “In collecting consumer claims ... no person shall . . .” There is no allegation that the defendant was collecting consumer claims. Plaintiff does not even allege what was in the envelope, nor what the purpose of the communication was. Plaintiff failed to allege ultimate facts necessary to show that he has a cause of action under Section 559.72(16).

A dismissal with prejudice for failure to state a cause of action should not be ordered without giving the party offering the defective pleading an opportunity to amend, unless it is apparent that the pleading cannot be amended so as to state a cause of action. 10 Fla.Jur., Dismissal § 33, at page 544. In this case plaintiff may be able to state a cause of action under Section 559.72(16) if he is allowed to file an amended count two. We reverse the trial court’s order dismissing with prejudice count two of plaintiffs amended complaint, and upon remand the plaintiff shall be allowed to file an amended count two.

REVERSED and REMANDED.

CROSS and DAUKSCH, JJ., concur.


author: DAUKSCH, Judge.

text:
    FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE, a National Banking Association, Petitioner, v. Kenneth D. ROOSE and Gretchen Roose, Respondents. FIRST WISCONSION NATIONAL BANK OF MILWAUKEE, a National Banking Association, Appellant, v. Kenneth D. ROOSE and Gretchen Roose, Appellees.
    Nos. 76-2357, 76-2374.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    James 0. Murphy, Jr., of Rimes, Greaton, Murphy & Batchelder, P. A., Fort Lauder-dale, for appellant.
    Thomas A. Groendyke of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   DAUKSCH, Judge.

This is an appeal of an Order denying a Motion to Dismiss. We have accepted jurisdiction under Fla.App. Rule 4.2 because the matter is in equity.

Appellee is an owner of a condominium apartment and represents a class of other condominium unit owners. He filed this lawsuit against the Appellant who is the mortgagee of the entire condominium project, including the recreation and other common areas.

In a novel and imaginative way Plaintiff seeks to have the court impose a joint adventure relationship upon the mortgagee without alleging sufficient facts to support his legal conclusion that such a relationship exists. Navarro v. Espino, 316 So.2d 646 (Fla.3d DCA 1975). Florida Tomato Packers, Inc. v. Wilson, 296 So.2d 536 (Fla.3d DCA 1974). Hewitt v. Price, 222 So.2d 247 (Fla.3d DCA 1969).

Appellant loaned the now defunct developer the money with which to build the project. A mortgage was received and payments on the mortgage were not received. Worse than that, from the owners’ viewpoint, the developer failed to maintain the recreation areas and the entire project began to waste away from a lack of funds.

The developer had promised to maintain the facilities in a first class manner and the mortgagee was aware of that when the money was loaned. It is alleged the mortgagee also knew the entire property was insufficient security to support the loan. It is further alleged that the unit owners have suffered a diminution in the value of their apartments and that they will be forced to spend time and money to correct the conditions complained of. There is no allegation of any agreement between the mortgagor and mortgagee except the agreement for financing. There is no allegation of a joint proprietary interest in the development. There is no allegation of a community of interest in the performance of a common purpose and no allegation that each would share in the profits and losses. Absent clear allegations in accordance with the guidelines established in the cases cited above, we cannot impose a duty upon a mortgagee greater than the one established as a money lender and security holder.

In another innovative way the Ap-pellee would have a duty imposed on the mortgagee to protect the interests of the owners by supervising the construction and maintenance by the developer. Appellee cites A. R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973) as authority but we find this case distinguishable and say again insufficient factual allegations cause the defeat of this count.

In a final stroke the Plaintiff seeks to have the court order the Defendant to foreclose its mortgage on the recreational complex. He reasons that Defendant cannot choose to foreclose on the valuable vacant land and refuse to foreclose on the recreational facility in order to avoid assuming the burdensome obligation of maintenance.

We find, no support of this proposition in law or logic and cannot sustain the allegation as stating a cause of action.

The Order denying the Motion of Defendant/First Wisconsin National Bank of Milwaukee to dismiss Counts II, III and IV is reversed and this cause is remanded for further proceedings not inconsistent herewith.

REVERSED and REMANDED.

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


author: PER CURIAM.

text:
    Conrado INDART, Administrator of the Estate of Nelson Domingo Cienfuentes, and Amado Indart, Individually and as the guardian of Sonia I. Cienfuentes, Individually and as the widow of Nelson Domingo Cienfuentes, Appellants, v. ORANGE COUNTY, a subdivision of the State of Florida, and the State of Florida, Appellees.
    No. 76-2553.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977

      Stone, Sostchin, Koss & Gonzalez, P.A., Miami, for appellants.
    Steven R. Bechtel, Mateer, Harbert, Bechtel & Phalin, P.A., Orlando, for appellee Orange County.
    Robert L. Shevin, Atty. Gen., and Clarence Holmes, Asst. Atty. Gen., Tallahassee, for appellee State of Florida.
   PER CURIAM.

AFFIRMED. See Circuit Court, etc. v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976) and Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975).

DOWNEY, ANSTEAD and DAUKSCH, JJ., concur.


text:
    John SCHNEIDER, Appellant, v. Norma Jean SCHNEIDER, Appellee.
    No. 77-135.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    J. Russell Hornsby, Orlando, for appellant.
    James E. Foster, Fishback, Davis, Dominick & Simonet, Orlando, for appellee.
   DAUKSCH, Judge.

For our consideration is an Interlocutory Appeal of an Order requiring discovery for a hearing seeking post judgment relief.

Appellant is seeking termination or reduction of the amount he is required to pay Appellee as alimony. He alleges he has a reduced ability to pay and his ex-wife has a reduced need. On interrogatories the wife seeks to discover the amount of any savings accounts or “commercial accounts” owned by the ex-husband’s present wife. She also seeks to discover whether or not her ex-husband’s present wife has owned any real property “during the last two years.” The Appellant objected to the questions as being irrelevant and immaterial and “an invasion of the right of privacy of the husband’s present spouse.” The court overruled the objections and ordered the Appellant to answer. We disagree with the trial court and reverse. Cited to us are Birge v. Simpson, 280 So.2d 482 (Fla. 1st DCA 1973) and Condon v. Condon, 295 So.2d 681 (Fla. 1st DCA 1974) which are rather on point but have to do with child support. Unless there is some showing on the part of the wife that the husband terminated or reduced his employment in order to keep from paying alimony and that he was relying upon his present wife for his living expenses in completion of the scheme, we can see no possibility of relevance concerning the present spouse’s income. We are aware from the answer to one of the interrogatories that the husband’s present spouse had paid some $1250 to his attorney for his services in this matter but we cannot find that to be within the definition of income.

The Order overruling objections to interrogatories is REVERSED.

CROSS and LETTS, JJ., concur.


text:
    Frank TORRES, Jr., Petitioner, v. CITY OF ORLANDO, Respondent.
    No. 77-324.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    John L. O’Donnell, Jr., Helliwell, Melrose & DeWolf, Orlando, for petitioner.
    Joel A. Spector and Paul A. Rowell, Orlando, for respondent.
   PER CURIAM.

By petition for writ of certiorari, the petitioner Frank Torres, Jr., seeks review of his conviction under an Orlando ordinance, No. 43.56-1, which incorporated Section 847.05, Florida Statutes (1975). The Florida Supreme Court has declared Section 847.05 unconstitutional. Spears v. State, 337 So.2d 977 (Fla.1976). That decision is determinative of the issue raised here. See Wheeler v. State, 344 So.2d 244 (Fla.1977). The second point raised by the petitioner is without merit. Accordingly, the petition for writ of certiorari is granted; the order of the circuit court affirming petitioner’s conviction is quashed; and the cause is remanded to the circuit court with directions to vacate the conviction of petitioner.

DOWNEY, ALDERMAN and AN-STEAD, JJ., concur.


author: BOARDMAN, Chief Judge. GRIMES, Judge,

text:
    CHARTER AIR CENTER, INC., a Florida Corporation, and William P. Cousins, Appellants, v. J. Fred MILLER, III, Appellee.
    No. 76-1520.
    District Court of Appeal of Florida, Second District.
    July 1, 1977.
    Rehearing Denied Aug. 25, 1977.

      Selig I. Goldin, Goldin & Cates, Gaines-ville, for appellants.
    Daryl J. Brown, Rosin, Abel, Band, Rosin & Brown, Sarasota, for appellee.
   BOARDMAN, Chief Judge.

Appellants/defendants, Charter Air Center, Inc., and William P. Cousins, appeal a final judgment entered pursuant to a jury verdict awarding appellee/plaintiff, J. Fred Miller, III, $11,000 plus interest compensatory damages and $7,000 punitive damages.

Miller and Charter Air entered into a written contract for sale to Miller of a 1975 Piper airplane with certain specifications. Randolph Dodson, a salesman for Charter Air, conducted all the negotiations with Miller, and Dodson signed the contract for Charter Air. In early June, 1975, Miller delivered an $11,000 check made to Charter Air as down payment for the airplane. On August 1, 1975, Miller cancelled his order and requested the return of his deposit. Cousins, the president and sole stockholder of Charter Air, did not refund the down payment.

Miller subsequently filed a one-count complaint against Charter Air and Cousins seeking compensatory and punitive damages. Pertinent portions of the complaint are:

5) That prior to entering into said written agreement, Defendants and each of them represented to Plaintiff that Defendant, Charter Air Center, Inc., was an authorized and reputable Piper dealer in good standing and capable of ordering from the Piper Aircraft Company the aircraft that is the subject matter of this action, and that the subject aircraft would be promptly ordered as soon as Plaintiff paid the required down payment.
7) That Defendants received the down payment as paid by Plaintiff, but made no effort whatsoever, as of this date, to order the subject aircraft, and that, in fact, Defendant, Charter Air Center, Inc., had previously lost its Piper franchise and was not even capable of ordering the aircraft as of the date of the written agreement.
8) That Defendants and each of them enticed Plaintiff to enter into the subject written agreement and pay the subject down payment, without ever having the capability or intent of ordering the subject aircraft, and with the specific intent of defrauding Plaintiff out of the subject down payment and converting the said down payment to their own uses and purposes.
10) That in breach of the aforementioned written agreement, Defendants and each of them have failed and refused to return to Plaintiff his aforesaid down payment, and have failed and refused to deliver the certain Piper aircraft to Plaintiff within the specified time.
12) That, as a direct and proximate result of the aforementioned fraudulent misrepresentation of Defendants and each of them, Plaintiff has suffered actual damages in the amount of Eleven Thousand Dollars ($11,000.00), plus interest from June 4, 1975, and that Plaintiff is also entitled to recover punitive damages from Defendants and each of them in an amount exceeding Ten Thousand Dollars ($10,000.00).
13) That Plaintiff has performed all conditions precedent to bringing this action and that performance was due to Plaintiff, pursuant, to said written agreement, in Sarasota County, Florida.

Cousins and Charter Air answered and filed affirmative defenses and a counterclaim for breach of contract against Miller.

We hold that as a matter of law appellee is not entitled to punitive damages from either Charter Air or Cousins or to compensatory damages from Cousins. Appellants have not raised on appeal the question of whether Charter Air is liable for compensatory damages, and the verdict reached by the jury on this issue will not be disturbed.

It is well established that punitive damages may be properly awarded only where the basis for the action is a tort “which involve[s] ingredients of malice, moral turpitude, or wanton and outrageous disregard of the plaintiff’s rights.” 9 Fla. Jur. Damages § 119 (1956). Appellee argues in the case before us that he is entitled to punitive damages based on two causes of action in tort: fraudulent representation and conversion. A close reading of the complaint and transcript of the proceedings in light of the applicable case law reveals, however, that appellee has neither specifically alleged nor proved the elements of a cause of action for fraudulent representation or conversion. See Ramel v. Chasebrook Construction Co., 135 So.2d 876 (Fla.2d DCA 1962). The elements of fraudulent representation are: a false statement pertaining to a material fact, knowledge that it is false, intent to induce another to act on it, and injury by acting on the statement. 14 Fla. Jur. Fraud and Deceit (1975). Appellee did not allege, nor show that he relied on the allegedly false statement that Charter Air was a Piper dealer and could deliver the airplane. Furthermore, the evidence uncontrovertibly establishes that although Charter Air was not a Piper dealer it had the capability of delivering the airplane ordered by Miller and that it had actively negotiated with both a Piper franchiser and a Piper dealer for delivery of the model airplane ordered by appellee. Therefore, even if appellee had relied on a misrepresentation, he suffered no damages or injury from that reliance. The essential element of conversion is wrongful deprivation of property to a person entitled to possession. Star Fruit Co. v. Eagle Lake Growers, Inc., 160 Fla. 130, 33 So.2d 858 (Fla.1948). Appellee alleged in his complaint that the conversion was accomplished by a wrongful taking of the deposit and by misuse of these funds. Nevertheless conversion has not been established in the case before us since appellee has not shown that he was wrongfully deprived of funds under either of those theories. Appellee admits that he voluntarily paid over the down payment to Charter Air and did not bring out evidence of any act committed by Cousins or by agents of Charter Air which would constitute a wrongful taking. Appellee also failed to introduce any facts to support his allegation that Cousins individually or as an agent for Charter Air converted the down payment by using the funds for his own purpose. Moreover, appellee did not support his request for award of punitive damages for a conversion, because he did not prove that if a conversion were committed that it was wilfully and wantonly committed with malice or gross negligence.

Since we have determined that ap-pellee is not entitled to recovery on a tort theory, the only theory which would support an award of damages is breach of contract. Punitive damages are not a proper item of damages for breach of contract unless the act complained of constitutes a tort which was wilfully and wantonly committed or was attended by fraud, malice, or gross negligence. E. g., Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957); Moore v. Southern Bell Telephone & Telegraph Co., 176 So.2d 558 (Fla.2d DCA 1965). As we have stated previously it was not refuted that attempts were made to fulfill Charter Air’s contractual obligation to secure the airplane ordered by appellee.

An officer or shareholder of a corporation cannot be held personally liable on a contract unless he signed the contract in his individual capacity or unless the nature of the corporation was such that the corporate entity should be disregarded such as where it was established or used for fraudulent purposes or where the corporation was merely the alter ego of the shareholder. E. g., Levenstein v. Sapiro, 279 So.2d 858 (Fla. 1973); Advertects, Inc. v. Sawyer Industries, Inc., 84 So.2d 21 (Fla.1955); Riley v. Fatt, 47 So.2d 769 (Fla.1950). Cousins did not participate in the sale of the airplane to Miller nor did Cousins sign the sales contract in any capacity. No allegations were made in the complaint nor was it shown at trial that Charter Air was formed or used for fraudulent purposes or that Charter Air was the alter ego of Cousins. Cousins could not then be held personally liable for breach of the contract.

In view of our disposition of these issues, the other points raised on appeal need not be addressed.

Accordingly, the final judgment is reversed as to the award of punitive damages against Charter Air and Cousins, reversed as to the award of compensatory damages against Cousins, and affirmed as to the award of compensatory damages against Charter Air.

AFFIRMED IN PART and REVERSED IN PART.

OTT, J., concurs.

GRIMES, J., dissents with opinion.

GRIMES, Judge,

dissenting

I must respectfully dissent.

Dr. Miller wanted a certain type of Piper airplane for delivery by no later than a specific date. In the course of negotiations for the purchase of this airplane, Randy Dodson told him that Charter Air was an authorized Piper aircraft dealer. Dodson confirmed that he had made this representation upon the direction of William Cousins, who was the president and sole stockholder of Charter Air. The truth of the matter was that Charter Air’s dealership had been cancelled several months before, and Charter could no longer obtain Piper aircraft at a dealer discount. While this would not have precluded Charter from ordering the aircraft through another dealer, the record suggests that Charter Air would have been in a better position to promptly furnish the aircraft had it been an authorized dealer.

Miller’s $11,000 check was deposited in Charter Air’s bank account on Friday, June 6, 1975. By the following Monday, most of the money was withdrawn to pay operating expenses. While Charter Air made some inquiries about this type of airplane of Piper’s statewide distributor and a Piper dealer in North Carolina, no order was ever placed because Charter Air declined to furnish the requested deposit. The bank records for the period of time in question reflect that Charter was seldom in a position to pay the $10,000 deposit which would have been necessary to insure the delivery of the airplane. In the meantime, Dodson said that Cousins told him to imply to Miller that the airplane he had ordered was in the process of being manufactured. Finally, the several aircraft being manufactured which would have met Miller’s specifications were sold to third parties, and no others were available. Upon being told by Dodson that the airplane had never been ordered, Miller demanded the return of his deposit from Cousins which was refused. When Cousins was advised that Miller was likely to sue, Dodson reported that Cousins said:

"... I can rearrange things and move things out of here so fast there won’t be anything for Doctor Miller to get.”

Thus, it could be inferred that the corporation made false representations to obtain Dr. Miller’s deposit which could be used to pay other bills, rather than to furnish the airplane. Therefore, the jury had a right to conclude that a fraud had been perpetrated which constituted an independent tort involving moral turpitude upon which an award of punitive damages could be made. Griffith v. Shamrock Village, 94 So.2d 854 (Fla.1957). Acknowledging that punitive damages cannot be awarded for breach of contract by itself, the court in Associated Heavy Equipment Schools v. Masiello, 219 So.2d 465 (Fla.3d DCA 1969), upheld an award of punitive damages when there was evidence of fraud in the inducement of the contract.

Though there was no proof that Cousins actually converted any of the money to his personal use, if Dodson is to be believed, Cousins was the architect of the fraud. While a corporate officer is not normally liable for the fraud of other officers or agents of the corporation simply because of his official character, he can be held individually liable for fraudulent acts of his own or those in which he participates. Ramel v. Chasebrook Construction Company, 135 So.2d 876 (Fla.2d DCA 1961). Cf. Levenstein v. Sapiro, 279 So.2d 858 (Fla.1973). 19 Am.Jur.2d Corporations § 1383. In Lloyd v. DeFerrari, 314 So.2d 224 (Fla.3d DCA 1975), the court upheld a judgment for punitive damages against the sole stockholder of a corporation who had acted for the corporation in fraudulently selling a boat with the knowledge that it was previously stolen.

I believe there is sufficient evidence in the record to support the jury verdict of compensatory and punitive damages against both defendants.


author: DOWNEY, Judge. CROSS, Judge,

text:
    STATE of Florida, Appellant, v. James Edward THOMPSON, Appellee.
    No. 75-1799.
    District Court of Appeal of Florida, Fourth District.
    July 8, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellee.
   DOWNEY, Judge.

The State has appealed from an order suppressing evidence in a criminal prosecution against James Edward Thompson for carrying a concealed weapon.

At approximately 3:30 a. m. on the morning of June 10,1975, while on patrol, Corporal Richard Klawe of the Orange County Sheriff’s Department received a radio communication from Deputy Judith Schulte that she heard noises she thought were gunshots in her patrol area. While these two officers met to investigate, an unidentified white male on a bicycle approached them and said he had seen someone fire shots from a car at a house nearby, and that the individual he had seen was across the street in the Winn Dixie parking lot.

The officers approached appellee’s vehicle and saw appellee take something off the dashboard and place it under the front seat. Corporal Klawe asked appellee to get out of the car, and Deputy Schulte took appellee to the rear of her vehicle. Corporal Klawe saw in plain view on the seat of Thompson’s car two ski masks. He opened the door,knelt down and reached underneath the front seat and removed a .22 revolver. Ap-pellee was then arrested.

The issue to be decided is whether the officers had probable cause to search Thompson’s car; we believe they did.

A reasonably good definition of probable cause and its application to warrantless search and seizure situations is set forth in McCain v. State, 151 So.2d 841, 844-845 (Fla.2d DCA 1963):

“In dealing with ‘probable cause’ for search and seizure without a warrant, a court deals with probabilities which are not technical but which are factual and practical considerations of every day life upon which reasonable and prudent men act and not legal technicians. The essence of ‘probable cause’ is a reasonable ground for belief of guilt; and the court in determining whether there was probable cause to make a search without a warrant must first determine sufficiency of knowledge by the searching officer by comparison to what a reasonable man, knowing all the facts which the searching officer knew, would have believed under all of the circumstances.”

Turning now to the knowledge possessed by the police prior to searching Thompson’s car, we find the record clearly demonstrates:

1)Officer Schulte heard several shots (or noises she believed to be shots from a small caliber gun) coming from the vicinity of an area known as Monterey Homes; she informed Officer Klawe of these shots; and the two officers met to investigate.
2) A boy on a bicycle rode up to the police officers and told them he had seen a person fire “a shot, or shots, from their car, at a home,” and that the car was in the Winn Dixie parking lot.
3) As the boy was relating this information, the officers could see the parking lot and a car standing in the parking lot with its headlights on. The car had not been there prior to the shooting.
4) On approaching the car in the parking lot, the officers observed Thompson take something from the car dashboard and appear to be putting it under the driver’s seat.
5) The hood of Thompson’s car was extremely warm, the engine was off and one of the officers observed in plain view two ski masks on the front seat.
6) It was 3:30 a. m. in mid-June in Florida.

We hold that a reasonable man, knowing these facts, would believe Thompson had committed a felony by shooting into a home, justifying his arrest and the search of his car. The facts within the personal knowledge of the officers demonstrated reliability of the unidentified boy who reported seeing the shooting. Here, the reporter appeared in person to give the two officers his eye witness account of a crime moments after it occurred. The fact that the officers did not get his name was unfortunate, but that fact neither added to nor detracted from the reliability of the reporter:

“The essence of reliability may be found in an informant’s statement of facts rather than an allegation of mere conclusory suspicion. An informant who alleges he is an ‘eyewitness’ to an actual crime perpetrated demonstrates sufficient ‘reliability’ of the person. In direct accord, see e. g., Coyne v. Watson, 282 F.Supp. 235 (S.D.Ohio 1967), aff’d 392 F.2d 585 (6 Cir. 1968). These facts provide a similar standard in determining probable cause for arrest without a warrant. Probable cause for an arrest may exist where an unknown citizen makes complaints, as a victim or eyewitness to a crime, where the underlying circumstances demonstrate his first-hand personal knowledge.” McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir. 1969).

It would have been a dereliction of duty for the two officers to ignore this report when it was strongly corroborated by Officer Schulte’s hearing of the shots. That corroborated report, plus the additional fact that the reporter pointed out Thompson’s car to the officers, all regarded in the light of the time the events occurred, lead to the conclusion that the officers in the present case had as much probable cause for the present arrest and the search and seizure as did the officers involved in West v. State, 239 So.2d 611 (Fla.2d DCA 1970); Street v. State, 239 So.2d 870 (Fla.2d DCA 1970); and Baker v. State, 316 So.2d 657 (Fla.lst DCA 1975).

For the foregoing reasons we reverse the order of suppression and remand the cause to the trial court for further proceedings.

REVERSED AND REMANDED, with directions.

ANSTEAD, J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent from the decision of the majority in the instant case, and would affirm the trial court’s decision to suppress the evidence.

The opinion of the majority reveals a total lack of regard for basic principles of appellate review. By reversing the trial court’s determination that the seizure of evidence was illegal, the majority, in effect, has confused its position and function as that of the trial court by reweighing and re-evaluating the evidence. It is the trial court that has the witnesses and evidence before it to weigh and consider in its determination of the existence of probable cause, not this court. The proper method of appellate review of the question in the instant case was only to ascertain from the record whether or not there was substantial competent evidence to support the trial court’s order. I think there was. Therefore, I disagree with the majority’s disposition of the matter in usurping the function of the trial court, and would affirm.


author: GREEN, OLIVER L., Associate Judge.

text:
    SUN FIRST NATIONAL BANK OF ORLANDO, as Trustee, Appellant, v. R. G. C., an Indiana limited partnership, Appellee.
    No. 76-1128.
    District Court of Appeal of Florida, Fourth District.
    July 8, 1977.
    Patrick T. Christiansen of Maguire, Voo-rhis & Wells, Orlando, for appellant.
    Mary Smith Townsend and Frank M. Townsend, Kissimmee, for appellee.
   GREEN, OLIVER L., Associate Judge.

The sole issue in this appeal is whether a mortgagor has an absolute right to timely redeem its property for the amount bid at a foreclosure sale.

The facts pertinent to this appeal are that the appellee-mortgagee was awarded a Summary Final Judgment in a real property foreclosure action against the appellant-mortgagor. The Summary Final Judgment contained a finding that the appellee-mort-gagee was due the sum of $1,988,061.25. A public sale of the mortgaged property was ordered. At the sale the appellee-mortga-gee purchased the property for $1,000.00. The appellant-mortgagor now claims that it is entitled to timely redeem the property for $1,000.00.

There are no Florida appellate opinions on this limited issue. Appellant-mortgagor contends, however, that Section 45.031(7), Florida Statutes (1975), is determinative in that it provides, “the amount of the bid for the property at the sale shall be conclusively presumed to be sufficient consideration for the sale”. This provision has no application to the present issue. Section 45.031(7) only establishes that the amount bid for the property is sufficient consideration. The issue on appeal is whether the amount successfully bid at a foreclosure sale fixes the amount for which the mortgagor may redeem its property.

We hold that a mortgagor has no such right. The Supreme Court of the United States reached a similar conclusion in the case of Collins v. Riggs, 81 U.S. (14 Wall.) 491, 20 L.Ed. 723 (1872). The court held:

To redeem property which has been sold under a mortgage for less than the mortgage debt, it is not sufficient to tender the amount of the sale. The whole mortgage debt must be tendered or paid into court. The party offering to redeem, proceeds upon the hypothesis that, as to him, the mortgage has never been foreclosed and is still in existence. Therefore, he can only lift it by paying it. The money will be subject to distribution between the mortgagee and the purchaser, in equitable proportions, so as to reimburse the latter his purchase money and pay the former the balance of his debt.

We adopt this language as a correct statement of the law in the present case.

The order denying the appellant-mortgagor’s Motion to Redeem is affirmed.

DOWNEY and ALDERMAN, JJ., concur.


text:
    Eugene BARFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 76-1779.
    District Court of Appeal of Florida, Fourth District.
    July 8, 1977.

      Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal of an order denying, without hearing, a motion to vacate filed by the appellant, Eugene Barfield, pursuant to Fla.R.Crim.P. 3.850.

Barfield asserted in his motion that he was denied effective assistance of counsel, citing numerous instances of claimed neglect by his court-appointed counsel. The trial court ruled that the allegations were insufficient.

An evidentiary hearing is required on Rule 3.850 motions unless the motion or record conclusively shows that the movant is entitled to no relief. We have previously held that similar allegations in a motion to vacate were sufficient to require a hearing. Lay v. State, 224 So.2d 369 (Fla. 4th DCA 1969). Accordingly, this cause is reversed and remanded for an evidentiary hearing.

DOWNEY, ALDERMAN and AN-STEAD, JJ., concur.


text:
    Lewis LAP, Appellant, v. Raymond THIBAULT and Allen Pappas, Appellees.
    No. 76-953.
    District Court of Appeal of Florida, Fourth District.
    July 8, 1977.
    Pierce Wood, Melbourne, for appellant.
    S. L. Holland, Jr., and William T. McCluan, Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for appellees.
   PER CURIAM.

We have carefully reviewed the entire record in this cause and find no reversible error. While the analogy of the fiduciary duty of a trustee to protect the trust res is appealing, the doctrine of separation of powers must restrict the judicial branch of the government, when faced, as here, with the question of issuing a mandatory injunction to require a municipality to file legal action to recover city property, to a determination of whether the municipality’s action involves illegality or a palpable abuse of authority amounting to illegality or is fraudulent or clearly oppressive. Hathaway v. Monroe, 97 Fla. 28, 119 So. 149 (1929); McDowell v. Trustees of Internal Improvement Fund, 90 So.2d 715, 718 (Fla.1956).

Affirmed.

DOWNEY and ANSTEAD, JJ., and HARRY W. FOGLE, Associate Judge, concur.


author: PARHAM, Associate Judge.

text:
    John Will TOLBERT, Appellant, v. STATE of Florida, Appellee.
    No. 75-2237.
    District Court of Appeal of Florida, Fourth District.
    July 8, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, Appellate Div., and James H. Earp, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PARHAM, Associate Judge.

The trial court denied the appellant/defendant’s motion to suppress evidence on grounds that a police search of the defendant’s car was a valid inventory search. The defendant thereafter plead nolo contendere to possession of more than 5 grams of marijuana in violation of F.S. 893.13(l)(e). As authorized in State v. Ashley, Fla.1971, 245 So.2d 225, the trial court received the defendant’s plea with reservation of right to appellate review of the legality of the seizure of the evidence.

The sole question on appeal relates to the legality of this “inventory” search made by the police pursuant to impounding the defendant’s car.

The search and seizure complained of herein occurred at approximately 5:00 A.M., March 15, 1975. While on routine patrol in a business district of Orlando, Florida, two police officers, Price and Ludwig, noticed a car parked off Buck Alley with two subjects in it. The officers approached the vehicle and asked for identification, the car being parked near a row of businesses in a high crime area. The car was lawfully parked. A teletype check of the identification given revealed that the defendant was wanted on a municipal contempt of court warrant. Defendant was thereafter arrested on that charge and told that his vehicle would be impounded pursuant to department policy.

During the arresting process, defendant asked that Willie Albert Gray, the other individual in the car, be allowed to take custody and control of defendant’s car. This request was denied. Officer Price testified that he felt he had authority to impound the vehicle pursuant to department regulations. In fact, Officer Price’s testimony showed that the arrest of defendant under the facts herein presented was not one of the situations enumerated in the regulation which required impoundment.

The defendant’s car was summarily “impounded”. A search disclosed more than 5 grams of marijuana under the floor mat. He was then arrested for possession of same.

Willie Albert Gray testified that he was twenty-five years old and had known defendant almost all his life. He further testified that one of the officers said he could take custody of defendant’s car, which the officer later denied.

The facts disclose that two obvious alternative procedures existed that would preclude this warrantless search of defendant’s automobile. The car was lawfully parked. The defendant should have been given the option of leaving same. His friend could have driven the car as requested. This option was denied. The officer in question not only disregarded the plain controlling law on the subject, but the departmental regulations enacted to give proper guidelines to insure proper police restraint in unnecessarily taking over and unreasonably searching citizen’s private automobiles. There was no legal justification for impounding defendant’s automobile. It follows that there was no legal justification for searching same.

The Court below erred in denying defendant’s motion to suppress. We reverse. These cases are controlling: State v. Jenkins, Fla.App.4th, 1975, 319 So.2d 91; Weed v. Wainwright, Fla.App.4th, 1975, 325 So.2d 44; Chuze v. State, Fla.App.4th, 1976, 330 So.2d 166; and Jones v. State, Fla.App.4th, 345 So.2d 809, opinion filed April 22, 1977. See also Altman v. State, Fla.App.2d, 1976, 335 So.2d 626.

We hereby reverse the Order Withholding Adjudication of Guilt and Placing Defendant on Probation and remand the cause for the entry of an order granting defendant’s Motion to Suppress Evidence and for further proceedings.

REVERSED AND REMANDED, with directions.

DOWNEY and ALDERMAN, JJ., concur.


author: BARKDULL, Judge.

text:
    Larry Mark LUTHERMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1334.
    District Court of Appeal of Florida, Third District.
    July 12, 1977.
    Rehearing Denied Aug. 24, 1977.

      Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   BARKDULL, Judge.

Harry Mark Lutherman appeals from convictions of aggravated assault and resisting an officer without violence, pursuant to a jury verdict.

During cross-examination by defense counsel of Officer Martin, the following question was objected to:

“So is it true that Hialeah Gardens and yourself as an individual are under investigation for police brutality as a result of this case?”

The trial court sustained the objection and instructed the jury to disregard. Subsequently, Officer Nieto, another State’s witness, was asked by defense counsel:

“Is it true that you are under investigation as a result of police brutality?”

The State’s objection was sustained and defense counsel was admonished to restrict himself in the future.

The appellant contends that the trial court erred in refusing to permit defense counsel to question the State’s police witnesses concerning an investigation of allegations of police brutality, when the allegations arose from the same incident, as did the charges against the defendant, and where the information sought to be elicited was relevant to show bias or prejudice on the part of witnesses. A defendant in a criminal case is normally accorded a wide range in the cross-examination of prosecution witnesses. Wallace v. State, 41 Fla. 547, 26 So. 713 (1899); Leavine v. State, 109 Fla. 447, 147 So. 897 (1983); Roberts v. State, 164 So.2d 817 (Fla.1964); Kirkland v. State, 185 So.2d 5 (Fla. 2nd D.C.A.1966); 35 FlaJur., Witnesses, § 190. The credibility, bias, or prejudice of a prosecution witness should be of paramount concern to a jury in the exercise of its fact-finding function. Liberality of cross-examination should be permitted in order to demonstrate a bias or prejudice on the part of a prosecution witness. Wallace v. State, supra; Kirkland v. State, supra; 35 Fla.Jur., Witnesses, § 190.

Clearly, in the instant case, where the only witnesses for the prosecution were the two police officers, the jury should have been permitted to hear evidence and to consider it relating to a pending investigation of these same police officers upon a complaint made by the defendant, in order for the jury to correctly determine their credibility.

Wherefore, for the reasons above stated, the jury verdicts, adjudications of guilt, and sentences be and they are hereby reversed, and this cause is remanded for a new trial.

Reversed and remanded, with directions.


text:
    CONCORD FLORIDA, INC., et al., Appellants, v. Matilda SABOWITZ, Appellee.
    Nos. 76-1457 and 76-1558.
    District Court of Appeal of Florida, Third District.
    July 12, 1977.
    Rehearing Denied Aug. 24, 1977.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellants.
    Jay Dermer, Miami Beach, Joe N. Unger, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed. Delano Hotel, Inc. v. Gold, 126 So.2d 301 (Fla. 3rd D.C.A.1961); Huff v. Belcastro, 127 So.2d 476 (Fla. 3rd D.C.A. 1961); Vitt v. Ryder Truck Rentals, Inc., 340 So.2d 962 (Fla. 3rd D.C.A.1977); compare Grant v. State, 171 So.2d 361 (Fla.1965). Also see: Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3rd D.C.A. 1976).


text:
    Rufus SUTTON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-915.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Aug. 26, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

The defendant Rufus Sutton appeals an order revoking probation. The record shows that the probation was revoked for the violation of a condition which was not included in the order placing defendant on probation. Therefore, the order must be reversed and the cause remanded with directions to reinstate defendant’s probation. See Barber v. State, 344 So.2d 913 (Fla. 3d DCA 1977).

Reversed and remanded with directions.


text:
    Emma Lee STEPNEY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-930.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Aug. 24, 1977.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., and Paul Mendelson, Legal Intern, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See: Morey v. State, 72 Fla. 45, 72 So. 490 (1916); Johns v. Ford Motor Credit Company, 226 So.2d 403 (Fla.1st D.C.A. 1969); Hale v. State, 238 So.2d 471 (Fla.lst D.C.A. 1970); State v. Alvarez, 258 So.2d 24 (Fla.3rd D.C.A. 1972); Breedlove v. State, 295 So.2d 654 (Fla.3rd D.C.A. 1974); Mitchell v. State, 321 So.2d 108 (Fla.lst D.C.A. 1975); Sykes v. State, 329 So.2d 356 (Fla.1st D.C.A. 1976).


text:
    Robert BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1037.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

The defendant was granted a delayed appeal pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). On the appeal, the single point presented urges reversal upon the ground that the original object from which his latent fingerprint was lifted was not produced in court. While no case supporting this proposition has been cited, it should be noted that the evidence showed that the object was not available to the State at the time of trial. No error has been shown. Cf. United States v. Sewar, 468 F.2d 236 (9th Cir. 1972); United States v. Herndon, 536 F.2d 1027 (5th Cir. 1976); and Smith v. State, 305 So.2d 868 (Fla. 3d DCA 1975).

Affirmed.


author: HENDRY, Chief Judge.

text:
    R. K. OVERSTREET, as Tax Collector of Dade County, et al., Appellants, v. SEA CONTAINERS, INC., a New York Corporation, Appellee.
    No. 76-1406.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Aug. 26, 1977.
    Stuart L. Simon, County Atty., and Robert L. Krawcheck, Miami, for appellants.
    Lapidus & Hollander and Richard L. La-pidus, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   HENDRY, Chief Judge.

This appeal is taken by Dade County from a final judgment which voided an assessment of ad valorem personal property taxes on marine container equipment owned by appellee, Sea Containers, Inc.

The facts, stated as succinctly as possible, are as follows. Appellee owns and leases marine cargo containers to shipping lines for international commerce. In 1972, appel-lee closed its Miami depot and has since neither maintained an office here nor realized any pecuniary benefit from its Miami operations. Appellee has, however, maintained an on-going relationship with its former agent for the purpose of overseeing the many containers that had been stored in warehouses at the Port of Miami by virtue of the terms of certain leases entered into by appellee and various shipping lines prior to the time appellee closed its Miami office. Said leases called for Miami as the “drop-off” point for leased containers at the termination of the leasing period.

During the years 1974 and 1975, Dade County assessed and taxed appellee’s personal property (containers) at the Port of Miami. The assessments were not apportioned by any formula, but were instead based upon the actual number of containers owned by appellee at the port on the applicable taxing dates. The containers taxed were of two varieties. The record supports the view that most, if not all, of the containers taxed were of the “off-lease” variety, i. e., containers stored at the port awaiting either transport out of Miami to another port or reassignment at Miami via a new lease agreement.

The other variety of container was that which was “on-lease” to a third person (lessee). Appellee could not determine whether any of the containers actually taxed at the port were of that variety, as it did not maintain a check on either the presence or whereabouts of containers while on lease to third persons. The assessor for the county did not impose the tax on the basis of an “off-lease” versus “on-lease” distinction, but rather, solely on the basis of ownership, i. e., the number of containers present at the port, owned by appellee.

This suit was filed challenging the assessment as void on the grounds, inter alia, that the assessed property was not permanently located in Dade County on the taxing dates in question, for the years 1974 and 1975, pursuant to Section 192.032(2), Florida Statute (1975). Dade County argued below, and on appeal, that the permanency requirement of the above statute is inapplicable sub judice, as that statute only pertains to competing counties attempting to tax the same personal property. The county was and is of the view that the general taxing statute, Section 192.011, Florida Statutes (1975), prevails, authorizing the ad valorem tax assessed on appellee’s property.

The trial judge, after a non-jury trial and with benefit of lengthy and scholarly mem-oranda of law determined that Section 192.-032(2) prevailed and no tax could be levied upon appellee, as the property in question was not permanently located in Dade County on the taxing dates. The assessment was held void and this appeal follows.

Initially, we must note that many other points were raised in both the trial court and on appeal concerning the validity of the assessment. One point in particular questioned the method of assessment utilized by the Dade County Assessor as being in violation of both the interstate and foreign commerce clause of the United States Constitution, art. I § 8, in that the tax was unapportioned, creating the possibility of multiple taxation and unduly burdening the instrumentalities of commerce. In rejecting that contention on appeal, we observe that the record is completely devoid of any testimony concerning the use of the stored containers in either foreign or interstate commerce. In fact, there was ample testimony to support the view that the taxed containers were doing nothing more than awaiting re-assignment to a port where ap-pellee maintained an active business. (As will be discussed later, this period of limbo lasted, in most cases, for more than two years.) As such, we believe that the constitutional contention of unapportioned taxation is completely without merit and shall be mentioned no further.

We now come upon the crux of this appeal: the questions of whether Section 192.-032, Florida Statute (1975) requires that personal property taxed must be permanently located in the county which assesses the tax and whether the property in question was, for tax purposes, permanently located in Dade County.

Section 192.032, Florida Statutes (1975) provides, in pertinent part:

“Situs of property for assessment purposes. — All property shall be assessed according to its situs as follows:
******
“(2) Tangible personal property, in that county and municipality in which it is permanently located on January 1 of each year. Property brought into the state after January 1 and before April 1 of any year shall be considered to have been in the state on January 1 of that year; except that tangible personal property brought into the state after January 1 and before April 1 of any year shall be taxable for that year only if the [property appraiser] has reason to believe that such property will be removed from the state prior to January 1 of the next succeeding year. All tangible personal property which is removed from one county in this state to another county after January 1 of any year shall be subject to taxation for said year in the county where located on January 1; except that the provisions of this paragraph shall not apply to tangible personal property located in such county on January 1 on a temporary or transitory basis if such property is included in the tax return being filed in the county in this state where such tangible personal property is permanently located.”

As previously mentioned, appellant contends that the above statutory section does not condition the right to tax upon permanency of the personal property within the county, but rather, said permanency requirement pertains to the resolution of disputes between counties. As such, appellant argues, the purpose of Section 192.032(2) is to determine the taxable situs of personalty. Appellant further contends that because the trial court was not faced with the question of multi-county taxation, the question of a taxable situs never arose and the court therefore needlessly construed the above statute.

Notwithstanding the above contention, it is our opinion that the present controversy can be decided without reaching for legislative interpretation of the above statute, for as we view it, the subject property acquired a “permanent” status, subjecting it to taxation by Dade County.

In City of Lakeland v. Lawson Music Co., Inc., 301 So.2d 506 (Pla. 2d DCA 1974), the court opined that for purposes of taxation, the word “permanent” in a taxing statute does not always denote lasting forever, and does not always have a meaning opposite to temporary.

“In tax cases the requirement of permanency has been found satisfied where presence is consistent with continuity and not sporadically or temporarily present.” Supra, 301 So.2d 508 at 508.

In addition, on the Federal level, the Court of Appeals for the District of Columbia has held that permanency, in the sense that personal property must be fixed like real property is not essential to the establishment of a taxable situs. District of Columbia v. Smoot Sand & Gravel Corp., 87 U.S. App.D.C. 248, 184 F.2d 987 (1950).

Appellee argues that it never intended the containers to permanently remain at the Port of Miami and has since transported all of said containers to its office-warehouse at the port in Savannah, Georgia. Notwithstanding appellee’s intent, the fact is that the containers taxed had remained dormant at the port for periods of time greater than two years prior to the January 1, 1974 tax assessment. Though, eventually, the containers were transported to Savannah, we believe that while warehoused in Miami, a sufficient nexus was established allowing for the assessment of an ad valorem personal property tax.

To hold otherwise, would allow appellee, and all others, to escape the burden of taxation of its personal property by the simple expedient of alleging that it never intended the property to permanently remain in Dade County, notwithstanding the fact that the property sought to be taxed had remained in the county for lengthy periods of time. Such a result we cannot accept.

Finally, while we note that the trial judge “found” that the containers in question were not permanently located in Dade County, we, of course, are not bound by that determination. Though a trial judge’s findings of fact and conclusions of law arrive at an appellate court clothed with a presumption of correctness, the presumption vanishes, if the judge’s interpretation of the legal effect of the facts is erroneous. Becklin v. Travelers Indemnity Company, 263 So.2d 629 (Fla. 1st DCA 1972).

The following language of the trial judge, taken from the record of the proceedings below, is indicative of the manner in which the court viewed the word “permanent.”

“THE COURT: If permanently means permanently in the true sense of the word permanently, I would imagine that maybe we may have a serious question here as to permanently.”

Though the above might at first blush appear to be somewhat cryptic, a careful examination of the record as a whole convinces us that the trial judge’s usage of the word “permanent” was much too narrow in application for purposes of taxation.

Accordingly, the order voiding the ad va-lorem personal property tax is hereby reversed. In that neither the amount of the tax assessed, nor the number of containers taxed was contested at the trial state, this cause is remanded with directions to reinstate the tax on appellee’s personal property as assessed.

Reversed and remanded with directions.

      . Appellee acknowledged at the trial level that his challenge to the assessment was not on the basis of dollar amount, but rather on the ground that the assessment, itself, was void. Appellee did, however, raise the question at the trial level and on appeal, that the possibility existed that some of the containers taxed to appellee by virtue of ownership might have actually been “on lease” to third persons at the time, therefore making those containers exempt from taxation as to the lessor-appellee. In that the record is completely devoid of any substantial competent evidence to the effect that “on lease” containers were actually among the containers counted and taxed, we need not rule upon this contention.


text:
    MERCY HOSPITAL, INC., Petitioner, v. Gerald BADIA, as father and next friend, and personal representative of Jason Badia, Deceased, and Gerald Badia and Judy Badia, as husband and wife, Respondents.
    No. 76-1627.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.

      Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and A. H. Toothman, Miami, for petitioner.
    Highsmith, Strauss & Varner and Leonard L. Elias, Miami, for respondents.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   BARKDULL, Judge.

The respondents, as plaintiffs, filed a complaint sounding in medical malpractice against the petitioner, as defendant, and a request for a medical mediation panel pursuant to the provisions of Section 768.-44(l)(a & b), Florida Statutes (1975). Prompt service of. process was obtained upon the defendant and it filed an answer. Nothing further transpired for 120 days from the filing of the claim for medical •mediation. On July 15, 1976, the clerk of the court noticed a request for an extension of time before the mediation referee, although no motion was filed demonstrating any alleged good cause. On July 19, 1976, the clerk of the court executed a notice of termination of medical mediation proceedings. The matter came on to be heard on the clerk’s notice, and the judicial referee, on August 6, 1976, denied any extension because he lacked jurisdiction.

The statute involved is Section 768.44(3), Florida Statutes (1975), and reads as follows:

“(3) The clerk shall, with the advice and cooperation of the parties and their counsel, fix a date, time, and place for a hearing on the claim before the hearing panel. The hearing shall be held within 120 days of the date the claim was filed with the clerk unless, for good cause shown upon order of the judicial referee, such time is extended. Such extension shall not exceed 6 months from the date the claim is filed. If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with law.”

The judicial referee held that he was without jurisdiction to grant an extension request made after the expiration of the 120-day period. We agree.

The statutes enacted as Part II to Ch. 768 place an impediment to a claimant’s right to seek legal redress in the courts of this State, notwithstanding the provisions of Article I, Section 21, Constitution of the State of Florida (1968). And, the statute should be strictly construed against those seeking the benefits of it, the statute being in derogation of the normal right of a claimant to seek immediate redress in the courts. This pre-litigation burden was recognized by the Supreme Court of Florida in Carter v. Sparkman, 335 So.2d 802 (Fla. 1976), which upheld the constitutionality of these statutes; No affirmative action having been taken by the defendant during the 120-day period, upon the expiration thereof the claimant was at liberty to pursue his cause of action in the circuit court without further delay.

The petitioner has called to our attention the following cases: State v. Vann, 342 So.2d 1073 (Fla. 3rd D.C.A.1977); State v. Jacobson, 343 So.2d 1328 (Fla. 3rd D.C.A. 1977); State v. Cowart, 344 So.2d 624 (Fla. 3rd D.C.A.1977); Richards v. Foulk, 345 So.2d 402 (Fla. 3rd D.C.A.1977). In each of the cited cases the facts are distinguishable from the instant case and we, therefore, do not find them either persuasive or controlling.

For the reasons above stated, the order of the mediation referee, finding that he was without jurisdiction to extend the period after the expiration of the 120-day period provided in Section 768.44(3), Florida Statutes (1975), is affirmed. Even if he had had jurisdiction, which we do not find, he would not have departed from the essential requirements of the law because there was no motion filed showing good cause.

Certiorari denied.

      . The petitioner filed an appeal in this matter which, because of the nature of medical mediation panels being quasi-judicial bodies, we choose to treat as a petition for certiorari. See: Article V, Section 2(a), Constitution of the State of Florida (1968). Also, see: Koota v. Parkway General Hospital, Inc., 346 So.2d 124 (Fla. 3rd D.C.A.1977).


author: HUBBART, Judge.

text:
    Temperance WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-601 and 76-1430.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Rehearing Denied Aug. 26, 1977.
    Horton, Perse & Ginsberg, Manners & Amoon, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This is a criminal prosecution in which the defendant was charged by information in two counts with sale or delivery of a controlled substance, to wit: cocaine, and possession of a controlled substance, to wit: cocaine, in violation of Sections 893.13(l)(a) 1, 893.13(l)(e), Florida Statutes (1975), before the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant was convicted as charged and sentenced to fifteen years in prison plus a $5,000 fine on the sale count and five years imprisonment on the possession count, the sentences on each count to run concurrently.

We find no merit in the defendant’s contention that the trial court erred in refusing to take a defense proffer of testimony from a witness outside the jury’s presence which allegedly showed that a prior witness called by the state had not told the truth on a particular point before the jury. The state had made the witness available to the defense during the trial when it first learned of such testimony. Nothing prevented defense counsel from calling the witness to testify before the jury, but counsel declined to do so. There was no reason for the trial court to hear such testimony as a proffer outside the jury’s presence. It was the duty of the jury, not the trial judge, to assess the credibility of witnesses and such testimony from the witness should have been addressed to the jury. See Bryan v. State, 41 Fla. 643, 661-662, 26 So. 1022 (1899); McDonald v. United States, 282 F.2d 737 (9th Cir. 1960); McGuinn v. United States, 99 U.S.App.D.C. 286, 239 F.2d 449 (1956). We accordingly, affirm the convictions for sale or delivery of a controlled substance and possession of a controlled substance.

We find no merit in the defendant’s further contention that the trial court imposed an excessive sentence on the sale of cocaine count. The fifteen year sentence plus the $5,000 fine imposed was within the statutory maximum set by the legislature for sale of a controlled substance, to wit: cocaine. Section 893.13(l)(a) 1, 775.-082(3)(c), 775.083.(l)(b), Florida Statutes (1975). We find no abuse of discretion in imposing the sentence on this count. Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943); Infante v. State, 197 So.2d 542 (Fla.3d DCA 1967); Cole v. State, 262 So.2d 902 (Fla.3d DCA 1972).

The five year sentence on the possession of cocaine count must be reversed because it arises from the same transaction or occurrence as the sale of cocaine. Because the defendant was convicted of two facets or phases of the same transaction, he could only be sentenced for the higher of such offenses, to wit: the sale of cocaine. Jackson v. State, 311 So.2d 811 (Fla.lst DCA 1975); Orange v. State, 334 So.2d 277 (Fla.3d DCA 1976); Caivano v. State, 276 So.2d 245 (Fla.2d DCA 1973); Jackson v. State, 270 So.2d 30 (Fla.4th DCA 1972); Gonzalez v. State, 268 So.2d 552 (Fla.3d DCA 1972); Jones v. State, 265 So.2d 514 (Fla.4th DCA 1972); Carr v. State, 264 So.2d 871 (Fla.1st DCA 1972); Hunt v. State, 264 So.2d 855 (Fla.lst DCA 1972); Shaw v. State, 264 So.2d 95 (Fla.lst DCA 1972).

Affirmed as to the judgments of conviction; affirmed as to sentence and fine on the sale of cocaine count; reversed as to the sentence on the possession of cocaine count.


author: HAVERFIELD, Judge.

text:
    James Henry THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1831.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Stephen L. Raskin, Miami, for appellant.

      Robert L. Shevin, Atty. Gen. and Anthony Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Defendant, James Henry Thomas, appeals his convictions for burglary and grand larceny, and for his sole point on appeal argues that the trial court erred in failing to grant his motion for mistrial after the bailiff gave the jury a legal instruction during its deliberation. We find this point has merit.

Before the jury’s verdict was announced, the trial judge informed counsel that during the jury’s deliberations the foreman had advised the bailiff that the jury was deadlocked 5-1, and the bailiff responded that the jury had to reach a unanimous verdict. Defense counsel thereupon made a motion for mistrial which was denied. The trial judge then gave the jurors the “Allen charge” over objection of the defense and the jury retired to deliberate. Shortly thereafter verdicts of guilty were returned.

The instruction given to the jurors by the bailiff, which was legally incorrect, is in clear violation of Section 918.07, Florida Statutes (1975). Further, this court has held in Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA 1960) that such communication between a bailiff and the jurors constitutes reversible error regardless of whether the bailiff’s answer is legally correct or not since the court alone is entitled to instruct the jury on the law and must do so in the presence of the jury. See also Slinsky v. State, 232 So.2d 451 (Fla. 4th DCA 1970); Randolph v. State, 336 So.2d 673 (Fla. 2d DCA 1976), and Fla.R.Crim.P. 3.410.

While counsel for the State concedes that the above communication constituted error, he contends that such error was cured upon the trial judge rendering the Allen charge to the jurors and directing them to further deliberate before they had announced their original verdict. We conclude to the contrary.

It is well established that nothing must be said or done by the trial court to embarrass or coerce an unconvinced juror or jurors to agree with the verdict or the majority simply because he or she is in the minority. Jones v. State, 92 So.2d 261 (Fla. 1957). Under the circumstances in the case sub judice, the rendering of the Allen charge may have well deprived the defendant of a “hung jury” for, as the court stated in Bell v. State, 311 So.2d 179, 181 (Fla. 1st DCA 1975): “An impediment to the exercise by a juror of a free and independent judgment is inconsistent with the mandate of Article I, Section 16, Constitution of the State of Florida, that the verdict of the jury must be impartial.”

The convictions of the defendant are reversed and the cause remanded to the trial court for a new trial.

Reversed and remanded.


text:
    James Henry THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1835.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.

      Stephen L. Raskin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Sidney M. Pertnoy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

The defendant was found guilty by a jury on two counts: (1) carrying a concealed weapon, and (2) unlawful possession of a firearm by a convicted felon. He was adjudged guilty on both counts but was sentenced only upon the second count. On this appeal, he challenges the sufficiency of the evidence to support the conviction.

The defendant’s testimony was that he had just taken the gun from another who had threatened defendant with the gun. Defendant’s version of the facts was refuted by testimony that he denied to police officers that he had a gun and the fact that the gun was concealed in the small of his back. The judgment is, therefore, affirmed. See Davidson v. State, 99 Fla. 732, 127 So. 342 (1930); Duncomb v. State, 237 So.2d 86 (Fla.3d DGA 1970).

Affirmed.


author: GRIMES, Judge.

text:
    Johnny Lee BRICE, Appellant, v. STATE of Florida, Appellee.
    No. 76-1119.
    District Court of Appeal of Florida, Second District.
    July 29, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was charged with sexual battery committed by threat of force or violence likely to cause serious personal injury. The jury was instructed on 1) the offense charged, 2) the attempt to commit the offense charged, and 3) sexual battery by force and violence not likely to cause serious personal injury. He was convicted of the latter offense.

Appellant made a timely request for an instruction on the offenses of assault and battery. The court declined to charge or give a proposed jury verdict on either of these offenses. In DeLaine v. State, 262 So.2d 655 (Fla.1972), the supreme court stated that assault and battery and bare assault were lesser included offenses of the crime of rape. The crimes of assault and battery continue to be necessarily lesser included offenses under the new sexual battery statute. Therefore, it was error to refuse to charge on these offenses.

The failure to instruct on a necessarily lesser included offense when requested by the defendant cannot be harmless error. Lomax v. State, 345 So.2d 719 (Fla.1977); State v. Terry, 336 So.2d 65 (Fla.1976). Since appellant was convicted of the least serious offense upon which the jury was charged, the “two steps removed” rationale of DeLaine v. State, supra, is inapplicable.

The judgment and sentence must be reversed, and the case remanded for a new trial.

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

      . § 794.01 l(4)(b), Fla.Stat. (1973).

      . § 794.011(5), Fla.Stat. (1975).

      . § 784.011, Fla.Stat. (1975).

      . § 784.03, Fla.Stat. (1975).


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. David SMITH, Appellee.
    No. 76-1577.
    District Court of Appeal of Florida, Second District.
    July 29, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    James R. Long, Fort Myers, for appellee.
   SCHEB, Judge.

The state filed an information charging appellee Smith with aggravated assault upon Deputy Ronald Rolling of the Lee County Sheriff’s Department. The trial court granted Smith’s motion to dismiss the information and this appeal by the state ensued. We reverse.

In Smith’s motion to dismiss filed under Fla.R.Crim.P. 3.190(c)(4), it was alleged that in February of 1976 Deputy Rolling went to Smith’s residence in response to a neighborhood disturbance complaint called in by one of Smith’s neighbors. As Deputy Rolling approached the door of Smith’s house, Smith pointed a loaded shotgun at him and said, “ ‘[Y]ou step foot inside this house and I’ll shoot you.’ ” The motion also stated that Deputy Rolling had been trespassing on Smith’s property at the time of the incident. The state filed no traverse to the allegations in Smith’s motion.

A hearing was held on the matter, and on September 20, 1976, the trial court entered its order dismissing the information. The order said, in part:

And the Court having determined that the actions of the Defendant in pointing a loaded shotgun at a police officer while simultaneously stating “. . . [Y]ou step foot inside this house and I’ll shoot you” constituted in law a conditional threat, and not unlawful, it is therefore
ORDERED and ADJUDGED that the Information charging the Defendant in the above styled cause be and the same is hereby dismissed.

When a criminal defendant moves to dismiss the information against him the motion should be granted “only where the most favorable construction to the state would not establish a prima facie case of guilt.” State v. Davis, 243 So.2d 587, 591 (Fla.1971). Though our supreme court was careful to note in Davis that there are important differences between a summary-judgment in civil law and a motion to dismiss in criminal law, the court did say the two procedural devices have the same objective, i. e., to avoid trial when the material facts are not genuinely in issue and can legally support only one conclusion.

It cannot be said, however, that as a matter of law the only conclusion the facts in this case would support, would be the innocence of appellee Smith. An element of the crime of aggravated assault (as well as simple assault) is a well-founded fear by the person threatened that violence is imminent. In our view the nature of the threat as conditional should have been regarded as evidence going to the issue of whether Deputy Rolling had a well-founded fear that violence was imminent. Though the conditional nature of the threat may well have lessened the probability that Deputy Rolling had a well-founded fear, the evidence was not such that the trial court could have concluded, as a matter of law, that Rolling did not have such a well-founded fear.

The trial court also found that Smith’s conditional threat was “lawful.” We interpret this to mean that even if the facts would ordinarily have constituted a prima facie case of aggravated assault Smith had the right to use the force he did, and that such right was a complete defense to the charge. We have great reservations about any proposition of law which in effect would have allowed Smith to carry out his threat of shooting Deputy Rolling if the officer had entered Smith’s home. While a man’s home is indeed his castle, one does not have unlimited discretion in the use of deadly force to defend it. This is especially true when the intruder is a police officer in the line of duty. The reasonableness, of the force used is generally a question of fact to be determined by a jury after proper instructions. See generally 25 A.L.R. 508 (1923), and supplements thereto.

We have not overlooked the allegation in Smith’s-motion that Deputy Rolling was trespassing when he approached the door of his house. Smith- argues that we must assume the truth of the trespass allegation because the state failed to traverse it. However, Fla.R.Crim.P. 3.190(d) says, “Factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the State in such traverse.” (Emphasis added.) Whether Deputy Rolling was trespassing is a matter of law, not a matter of fact. Therefore, the failure of the state to traverse this allegation is not determinative of this issue.

In State v. Belcher, 317 So.2d 842 (Fla.2d DCA 1975), we held that when a police officer enters upon private property in the performance of his duty, conduct on his part that would otherwise be a trespass is justifiable. See also Foster v. United States, 296 F.2d 65 (5th Cir. 1962). In viewing the evidence most favorably to the state, as must be done on a motion to dismiss, we cannot conclude that Deputy Rolling was trespassing when he approached Smith’s door in performance of his duty as an officer.

We recognize that at trial “the shoe will be on the other foot,” i. e., the state will have the burden of proof and the presumption of innocence will best with appellee Smith. However, on motion to dismiss, we cannot find that the facts alleged required that the information should have been dismissed.

REVERSED.

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

      . Sec. 784.021(l)(a), Fla.Stat. (1975), defines an aggravated assault to be an assault with a deadly weapon without intent to kill. Sec. 784.011(1), Fla.Stat. (1975), defines an assault to be “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” So aggravated assault incorporates the elements of assault, but includes the additional element of the use of a deadly weapon.

      . In fact, Deputy Rolling’s deposition indicates that he did have a well-founded fear:
      Q. [Defense Counsel]: In your own mind you thought it was conditional?

      [Deputy Rolling]: I didn’t, really. He had the gun on me then, you know. I thought if he was serious enough to point it, he was serious enough to shoot it.


author: OTT, Judge.

text:
    Lowell OLER, Appellant, v. Duane J. SORENSON, Trustee, et al., Appellees.
    No. 76-1923.
    District Court of Appeal of Florida, Second District.
    July 29, 1977.
    R. Thomas Corbin of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, for appellant.
    Richard Smith and Peter W. Martin of Stinnett, Surfus & Martin, Sarasota, for appellees.
   OTT, Judge.

Appellant (buyer) and appellee (seller) entered into a one page written contract for the sale and purchase of a rental mobile home park. The contract was prepared in the form of an informal offer by the buyer which would ripen into a contract upon execution (acceptance) by the seller. Personal pronouns such as “I”, “my” and “you” were used in lieu of the usual terms to designate the parties.

Under the contract the buyer gave the seller a $10,000 check as a deposit for application to the total purchase price at closing.

The contract stated in relevant part that “. . .if consummation [closing] is prevented by my [buyer] failure to carry out this agreement, said V2 deposit will be retained by you [seller].” The contract was not closed due to the “failure” of the buyer. The seller refused to refund any portion of the deposit. This action resulted.

Under the above quoted uncontroverted language of the contract, the appellant (buyer) is entitled to a return of one-half of his deposit or $5,000.

We find no merit in appellant’s remaining points on appeal.

We therefore reverse the lower court, set aside the final judgment and remand this case for entry of a final judgment consistent with this opinion.

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