text:
    Jackson B. BURCH, Appellant, v. STATE of Florida, Appellee.
    No. 45359.
    Supreme Court of Florida.
    March 10, 1977.

      Thomas L. Brown of Brennan, Brown & Avery, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause is on direct appeal from conviction of premeditated murder and imposition of the death sentence by the trial court following a jury recommendation of life imprisonment. We have jurisdiction.

Appellant was arrested May 1, 1973, for the stabbing death of a young woman. Her body was discovered April 23, 1973, buried beneath the natural sand floor of a pump house located along a seawall. She had been missing since April 10, 1973, when she was last observed walking along the beach in the same general vicinity. Her body was decomposed when found so that the date and time of death could not be fixed exactly. The corpse revealed 35 or 36 puncture wounds of the type a small knife would produce, but disclosed no evidence of a completed rape. Appellant’s confession, corroborated by physical evidence at the crime scene, established that a rape was attempted before the victim was killed.

I.

The first issue concerns the voluntariness of appellant’s confession. Appellant was questioned for the first time on the morning of May 1. The questioning took place simultaneously with that of two other men, and occurred near the crime scene in the neighborhood where the men worked. All three men then generally asserted ignorance of any facts pertaining to the crime. The two detectives doing the questioning returned after lunch for further inquiry. Appellant was asked to go with them to the sheriff’s office for more questioning that afternoon. Appellant voluntarily agreed, being specifically advised that he was not under arrest and that he could not be compelled to go. During the auto ride to the sheriff’s office, the detectives conversed normally with appellant, and briefly advised him again of his Miranda rights. On arrival, appellant consented to fingerprinting and was fully advised of his Miranda rights. Appellant was told he was there for interrogation and was a suspect in the homicide of the young woman, but that he was not under arrest and could leave at any time. Appellant agreed to remain in the sheriff’s office for questioning.

From approximately 2:30 p. m. until 8:00 p. m., appellant was questioned by one or more of a group of five sheriff’s deputies regarding the killing. He was vigorously accused of the crime, incriminating evidence against him was fabricated to lever a confession, and a pretended polygraph examination was attempted on him with his consent. Appellant maintained his innocence through all those attempts to secure his confession. Appellant then was informed he had failed the pretended polygraph test, i. e., that he had lied when denying the killing. The detective interrogating him stated he would make the decision whether to charge appellant with first or second degree murder and that he wanted to believe appellant had not premeditat-edly killed the girl. He also advised the appellant to consider the difference between a capital crime and a seven-to-twenty year sentence in determining whether to confess and explain the circumstances.

Thereafter appellant admitted the killing. He confessed to forcing the victim into the pump house, removing her clothes, attempting intercourse with her, and upon failing that, mentally blanking out during an apparently frenzied assault on her with his pocketknife. Appellant’s signed confession which resulted from the interrogation was admitted into evidence over protestations of involuntariness and coercion by counsel. Although-fully advised of his rights, appellant never asked to leave, requested an attorney, or asked the interrogator to stop.

The trial judge held the confession admissible. Counsel now asserts the confession was coerced. A coerced confession may vitiate the conviction. Lynumm v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Williams v. State, 188 So.2d 320 (Fla.App.2d 1966). But see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Circumstances that have been construed as sufficient to constitute coercion include driving an accused from county to county’ for three days without benefit of counsel ostensibly to protect him from mob violence incited by his crime; falsely threatening an accused at the scene of the crime and immediately upon her arrest with the loss of her children and welfare support; and confining a prisoner accused of rioting to a punishment cell six and oner half feet wide by either seven or thirteen feet long for thirty-five days, naked, with two other men, fed only twelve ounces of soup and eight ounces of water daily, with a floor-level hole in one corner for excretions.

Circumstances found not coercive to the point of invalidating a conviction appear in Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). In this casé Escobe-do but not Miranda was applicable. There was a false police assertion that the accused’s partner in crime had confessed. The court construed that evidente relevant to the validity of the confession, but held the falsity, “insufficient ... to make [the] confession inadmissible,” 394 U.S. at 739, 89 S.Ct. at 1425. The court applied the “totality of circumstances” test of Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967), to uphold admissibility of the confession. See also Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941).

We view the forces exerted in the instant cause in order to obtain the confession of appellant as somewhat greater in quantity but of the same quality as those in Frazier v. Cupp, supra. The elements of physical coercion common to confessions deemed invalidated are absent. There were complete Miranda warnings, and we hold the confession admissible.

H.

The next issue arises from appellant’s assertion that there was insufficient evidence before the jury to support beyond a reasonable doubt its finding appellant sané. Opinions of four lay-witnesses for the defense, and opinions of three psychiatrists, one for the state and two by the defense, were presented on this issue. Two of the three psychiatrists testified they believed that appellant was sane, that he knew the difference between right and wrong, when he began stabbing the victim, but lost contact with reality as he continued. The third testified he was uncertain whether appellant became temporarily psychotic before or after he began stabbing the victim. The testimony was conflicting and the appellant’s assertion that the state did not meet its burden of establishing beyond a reasonable doubt the sanity of appellant is without merit. The jury had expert testimony from two sources that appellant was sane when the attack commenced. This is sufficient evidence to support its finding of sanity beyond a reasonable doubt. See Byrd v. State, 297 So.2d 22 (Fla.1974).

III.

The final issue concerns the imposition of the death sentence. The trial jury recommended life imprisonment. The trial judge found the mitigating circumstances consisted' of no prior history of criminal activity, and a substantially impaired capacity to appreciate the criminality of his conduct, or to conform it to the law. The trial judge however imposed the death sentence, finding “insufficient mitigating circumstances to outweigh the aggravating circumstances.” In aggravation he found the act was committed while appellant was engaged in the commission or attempt to commit rape, and that the act was especially heinous, atrocious, or cruel.

We previously have expressed our view on the consideration to be given the jury recommendation:

“ . . .A jury recommendation under our trifurcated death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ. . . ” Tedder v. State, 322 So.2d 908, 910 (Fla.1975).

Under the provisions of Section 921.-141(6), Florida Statutes (1975), there are two categories of mitigating circumstances relating to a defendant’s mental condition which are to be considered by the jury. These provisions are:

“(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
* * sf: * sfc
“(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.”

We previously have determined that under our rule of competency the jury could have concluded from the evidence that the de.fense of not guilty by reason of insanity was not available to the defendant. The evidence does however establish that at the time of the offenses the defendant was mentally disturbed, and his capacity to conform his conduct to the requirements of law was substantially impaired as found by the trial judge. It is apparent that the jury’s recommendation for a life sentence was predicated upon the appellant’s mental condition. See concurring opinion by Justice Sundberg in Jones v. State, 332 So.2d 615 (Fla.1976). The legislature specifically authorized the jury to consider such circumstances. For us to approve the imposition of the death sentence, we must find some compelling reason for the trial judge’s rejection of the jury’s recommendation of life imprisonment. We find none, and therefore must overrule the imposition of the death penalty.

The sentence of death is hereby vacated, and the life sentence without eligibility of parole for twenty-five years is hereby imposed. In all other respects, the judgment of the trial court is affirmed.

It is so ordered.

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

ADKINS and ROBERTS (Retired), JJ., and MUSZYNSKI, Circuit Judge, concur in conviction, but dissent on sentence and would impose death sentence.

      . Fla.Const., Art. V, § 3(b)(1).

      . Ward v. Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663 (1942).

      . Lynumm v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963).

        .Brooks v. Florida, 389 U.S. 413, 88 S.Ct. 541, 19 L.Ed.2d 643 (1967).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ronald SCHAMING and Loretta Schaming, Individually and as husband and wife, Petitioners, v. SIMKINS INDUSTRIES, INC., a Connecticut Corporation, and John Sweeney, Respondents.
    No. 49382.
    Supreme Court of Florida.
    March 10, 1977.

      Eugene C. Heiman, of Heiman & Hei-man, Miami, for petitioners.
    Knight, Peters, Hoeveler, Pickle, Niem-oeller & Flynn, and Jeanne Heyward, Miami, for respondents.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ. Upon further consideration of the cause, we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

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

BOYD, J., dissents.


text:
    THE FLORIDA BAR. In re William H. KILBY.
    No. 49497.
    Supreme Court of Florida.
    March 10, 1977.
    William H. Kilby, in pro. per.
    David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, respondent.
   PER CURIAM.

This case is before the Court on Petition for Leave to Resign from The Florida Bar Pursuant to Rule 11.08 of the Integration Rule of The Florida Bar. The petition states in part as follows:

1. There have been no past disciplinary actions against your Petitioner.
2. Pending disciplinary actions are those hereinabove referred to which are in more particular as follows:
(a) As to Case No. B17-76-20, your Petitioner is charged with a complaint by Rodney L. Jacobs wherein Mr. Jacobs has claimed that he has been damaged by Petitioner in the amount of $9300.00. The loss came about in a manner which is accurately described in a letter to the Bar Association from Waste Management on the date of September 11, 1975, as follows:
Waste Management, Inc.
900 Jorie Boulevard — Oak Brook,
Illinois 60521-312/654-8800
September 11, 1975
State of Florida Bar Association
c/o Client’s Trust Fund
Tallahassee, Florida 32304
RE: William H. Kilby
2691 E. Oakland Blvd.
Ft. Lauderdale, Florida 33306
Gentlemen:
In April, 1975 the subject was retained by Waste Management of Florida, Inc. to represent its interests in the sale of 2750 South Ocean Drive, Hollywood, Florida. On May 22, 1975 this real estate sale was closed at which time Mr. Kilby forwarded a check in the amount of $82,163.17 which represented part of the proceeds from said sale. An amount of $9,300.00 was still due from said sale which Mr. Kilby, upon repeated demands from me, acknowledged and advised he would forward same once he withdrew it from an escrow account in Miami. As it has been subsequently determined, no such escrow account exists, per statement from the purchaser’s attorney, and Mr. Kilby refuses to remit to us the $9,300.00 held by him for us or answer any correspondence or telephone calls.
In connection with the above, I am enclosing the following documentation for your file:
1) Copy of my letter of September 2, 1975.
2) Copy of my letter of August 15, 1975.
3) Copy of the closing statement of May 22, 1975.
4) Copy of Mr. Kilby’s letter of June 25, 1975.
5) Copy of Mr. Howard’s letter of May 7, 1975, attorney for purchaser.
6) Copy of Mr. Kilby’s letter of May 19, 1975.
7) Copy of Mr. Kilby’s letter of April 7,1975.
8) Copy of contract dated April 4,1975.
In view of the above, I am herein requesting that the Client’s Trust Fund remit $9,300.00 due to the loss incurred and that such action be taken against Mr. Kilby as the Bar deems appropriate.
Very truly yours,
(s) Rodney L. Jacobs
Attorney at Law
rlj/jec
encl
cc: J. S. Bergerson
H. W. Huizenga
(b) As to Case No. B17-76-30, complaint was made by a Mr. Bradley. This matter pertained to a Small Claims Court case wherein Mr. Bradley retained Mr. Kilby to represent him in Small Claims Court. The retainer fee quoted by Petitioner was $200.00 which Petitioner told Mr. Bradley was non-refundable.
Your Petitioner did some work pertaining to the representation of Mr. Bradley including an appearance in Court on behalf of Mr. Bradley seeking a continuance of the Small Claims Court trial because of a social engagement Mr. Bradley had the same day the matter was scheduled for Court.
Your Petitioner alleges that he had spent at least four hours interviewing Mr. Bradley and in preparation of the case.
Your Petitioner has previously sent to The Florida Bar and to the Supreme Court of Florida a letter resigning from The Florida Bar and requesting that Petitioner’s name be stricken from the roll of attorneys eligible to practice, effective February 20, 1976. Your Petitioner advised Mr. Bradley of the problem and suggested he seek other counsel and refunded to Mr. Bradley the sum of $100.00 of the $200.00 retainer that he had been given, your Petitioner being of the opinion that $100.00 was fair compensation for services rendered until the time it became necessary for your Petitioner to withdraw from representation.
3. There never has been any criminal proceedings instituted against your Petitioner.
4. The pending investigation and proceedings are set for May 27, 1976 at 3:30 p.m. Mr. KILBY has no defenses to these proceedings and the loss that has been sustained by Waste Management and the only defense as to Mr. Bradley’s accusations are set forth herein and if it be the opinion of the Committee that your Petitioner should or must refund to Mr. Bradley the additional $100.00 such will be done within 60 days of notice by either The Florida Bar or the Clerk of the Supreme Court of the State of Florida.
5. Your Petitioner represents unto this Honorable Court and The Florida Bar that since his letter of resignation dated February 20, 1976, he has done no legal work nor has he represented himself to be a lawyer.

In its Response The Florida Bar states in part as follows:

At the July meeting of the Board of Governors of The Florida Bar, the Board voted to oppose the petition for leave to resign unless petitioner Kilby affirmatively consents to a full waiver of confidentiality of the disciplinary proceedings and to condition the filing of any reinstatement application on prior proof of full restitution to any injured clients.

The Petitioner, William H. Kilby, having filed Affirmative Consent to Full Waiver of Confidentiality of Disciplinary Proceedings; And to Condition the Filing of any Reinstatement Application on Proof of Full Restitution, it is ordered by the Court that the Petition for Leave to Resign from The Florida Bar is hereby granted effective this date.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND and ROBERTS (Retired), JJ., concur.


author: HATCHETT, Justice.

text:
    Joseph REINHARDT, etc., Appellant, v. John E. SCHWAB et al., Appellees.
    No. 49509.
    Supreme Court of Florida.
    March 10, 1977.
    F. Kendall Slinkman of Farish & Farish, West Palm Beach, for appellant.
    Francis A. C. Sevier of Magill & Sevier, Miami, for Schwab and St. Paul Fire & Marine.
    Monroe A. Coogler, Jr., of Adams, Sullivan, Coogler & Watson, West Palm Beach, for Merrell and TraVelers.
    Brennan, McAliley, Albury & Hayskar, and Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for J. F. K. Hospital.
    Larry A. Klein, West Palm Beach, for Merrell and Schwab.
   HATCHETT, Justice.

This is a direct appeal from an order of the Circuit Court of Palm Beach County. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellant, as plaintiff, brought an action for medical malpractice. On motion of the appellees, the trial court entered a final judgment on the pleadings relying on Foley v. Morris, 325 So.2d 37 (Fla. 2d DCA 1976).

On November 4, 1976, this Court entered an opinion reversing Foley v. Morris. See Foley v. Morris, 339 So.2d 215 (Fla.1976). We held that since the legislative intent to provide retroactive effect to Section 95.-11(6), Florida Statutes, is not express, clear, or manifest, it does not apply to causes of action occurring prior to its effective date. We therefore reverse the order of the trial court and remand the cause for further proceedings consistent with our November 4, 1976, opinion.

It is so ordered.

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


text:
    SAXONY HOTEL and Employers Service Corporation, Petitioners, v. Harry ZINS and the Florida Industrial Relations Commission, Respondents.
    No. 49815.
    Supreme Court of Florida.
    March 10, 1977.
    John G. Tomlinson, Jr., of Williams, Tom-linson & duFresne, Coral Gables, for petitioners.
    David C. Arnold of the Law Offices of Sam Bloom, Miami, for respondents.
   PER CURIAM.

We have for review by petition for writ of certiorari an order of the Industrial Relations Commission reversing a decision of a Judge of Industrial Claims on the ground, inter alia, that it was not entered within the 30-day period set forth in Section 440.-25(3)(b), Florida Statutes. The Commission’s order was filed on June 11, 1976.

Since the entry of the Commission’s order in the instant case, this Court has decided Scottie-Craft Boat Corp. v. Smith, 336 So.2d 1150 (Fla.1976); Miller v. Oolite Industries, Inc., 336 So.2d 1152 (Fla.1976); and Misal Industries v. Hartman, 339 So.2d 655 (Fla.1976). On the authority of those decisions, we now grant the petition for certiorari in this cause, quash the order of the Industrial Relations Commission, and remand to the Commission for reconsideration in light of our more recent decisions.

It is so ordered.

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


text:
    THE FLORIDA BAR. In re Hallard J. GREER.
    No. 50733.
    Supreme Court of Florida.
    March 10, 1977.
    Joseph G. Donahey, Jr., Clearwater, and James P. Hollaway, Palm Beach, for The Florida Bar, complainant.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On June 13, 1975, Bar counsel for The Florida Bar filed a three count complaint with the referee, charging respondent with violating Florida Bar Oath of Admission, Florida Bar Integration Rule 11.02(3)(a), and Florida Bar Code of Professional Responsibility, DR 1-102(A)(4), DR 1— 102(A)(5), DR 7-102(A)(3), DR 7-102(A)(5), and DR 7-110(B).

On January 16,1976, Bar Counsel for The Florida Bar filed a three count complaint with the referee, charging respondent with violating Florida Bar Code of Professional Responsibility, DR 1-102(A)(4), DR 1-102(A)(6), DR 2-106(A) and (B), DR 6-101(A)(3), and DR 7-101(A)(2).

Thereafter, Respondent tendered his Conditional Guilty Plea pursuant to Article XI, Rule 11.13(6) of the Integration Rule of The Florida Bar in exchange for disciplinary measures which are hereby approved as follows:

A one-year probationary period, subject to the following conditions:
1. That the respondent will be guilty of no violation of his oath of admission to The Florida Bar, of any of the provisions of the Integration Rule, or of any of the disciplinary rules whatsoever, during any said period; that any additional violation would subject the respondent to further appropriate disciplinary action by The Florida Bar for the violations admitted herein.
2. That the respondent audit the course entitled “Ethics” given at Stetson University College of Law in St. Pe-tersburg, Florida, attending such classes faithfully, and providing to the Board of Governors of The Florida Bar proof that he has faithfully attended said classes and that he has successfully taken an examination on professional responsibility from the teacher of said class, or some other qualified person approved by the Board of Governors, prior to the expiration of the probationary period of one (1) year.

All costs, presently the known total of Six Hundred Fifty-Two Dollars and Ten Cents ($652.10), are hereby taxed against Respondent, said sum to be paid within thirty (30) days from this date.

Publication of this opinion shall constitute a public reprimand.

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


author: SCHEB, Judge.

text:
    FLORIDA FRUIT SALES, INC., Petitioner, v. KINGFISHER GROVES, Respondent.
    No. 76-480.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1976.
    Harry E. King and Robert G. Thornhill, Jr., King, Howell & Kaylor, Winter Haven, for petitioner.
    Kingswood Sprott, Jr., Sprott & Grosec-lose, Lakeland, for respondent.
   SCHEB, Judge.

Respondent, Kingfisher Groves,'contracted with the petitioner, Florida Fruit Sales, Inc., a licensed citrus fruit dealer, for the latter to harvest and acquire citrus fruit in Blocks 60 and 61 of the Kingfisher Groves near Merritt Island. A dispute arose and Kingfisher initiated proceedings with the Commissioner of Agriculture under F.S. Ch. 601, contending that Fruit Sales failed to pay it for 3700 boxes of grapefruit it had harvested from Block 60. Fruit Sales denied any obligation to Kingfisher and filed “Affirmative Defenses and Set Off” claiming damages from Kingfisher’s alleged breach of the contract by allowing others to harvest the grapefruit from Block 61 which caused Fruit Sales to suffer a loss of profits of $3,447.50. The Commissioner allowed Kingfisher $3,605.50 on its claim against Fruit Sales relating to Block 60. As to Fruit Sales’ claim in reference to Block 61, however, the Commissioner determined to “. . . leave the parties to such other remedies as they may desire to pursue concerning this citrus.”

Wé hold the Commissioner erred in not allowing Fruit Sales to assert by way of recoupment its claim for damages arising out of the same contract. We grant the writ.

Florida Statutes § 601.66 provides for the Commissioner to determine claims against licensed citrus fruit dealers in certain instances. Chapter 601 is silent as to the Commissioner’s authority to entertain any other claims. Nevertheless, once the Commissioner accepts jurisdiction to determine the damages sustained by a claimant against a dealer, the dealer should be allowed to assert by recoupment its claim arising from the same contractual transaction. If petitioner Florida Sales can establish a right to recoupment, it would have a direct bearing on the extent of Kingfisher’s net entitlement.

We think our view consistent with that taken by the federal court in Andrews Bros. of Calif. v. Central Produce Co., 6th Cir. 1953, 203 F.2d 949, wherein the court held that a defendant was properly allowed to assert a counterclaim in a somewhat similar proceeding before the United States Department of Agriculture under the Perishable Agricultural Commodities Act of 1930, as amended, 7 U.S.C.A. § 499a et seq. See also, the opinion of this court in Holly Hill Fruit Products Co., Inc. v. Bob Staton, Inc., Fla.App.2d 1973, 275 So.2d 583, wherein we held that when the Commissioner determined the liability of a fruit dealer, that dealer’s entire contract was before the Commissioner and it was error for the Commissioner to fail to adjudicate the claimant’s right to interest as provided in the contract.

Accordingly, that part of the Commissioner of Agriculture’s order entered January 15, 1976, which provides:

“The Commissioner makes no ruling or determination surrounding the citrus of Block 61, and leaves the parties to such other remedies as they may desire to pursue concerning this citrus.”

is quashed, and pursuant to Fla.Stat. § 120.-68(8) this cause is remanded to the Commissioner of Agriculture for further proceedings consistent with this opinion.

Certiorari granted and cause remanded.

McNULTY, C. J., and BOARDMAN, J., concur.


text:
    James H. CASON, III, Appellant, v. SCHOOL BOARD OF UNION COUNTY, Florida, Appellee.
    No. BB-120.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1976.
    Rehearing Denied Oct. 4, 1976.
    Selig I. Goldin of Goldin, Turner & Cates, Gainesville, for appellant.
    Wayne M. Carroll, Gainesville, for appel-lee.
   PER CURIAM.

AFFIRMED.

RAWLS, Acting C. J., and McCORD and MILLS, JJ., concur.


text:
    DISTRICT BOARD OF TRUSTEES, POLK COMMUNITY COLLEGE, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Polk Community College Federation of Teachers, Local 2418, AFT, AFL-CIO, FEA/United, Respondents.
    No. 76-258.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 1976.
   The attorney for respondent herein having filed a Motion to Remand this case to the Public Employees Relations Commission for redetermination in light of the amendment of Section 447.203, Fla.Stat., and petitioner having filed no objection thereto, upon consideration, it is.

ORDERED that said motion is granted and the case is hereby remanded for the purposes specified in the motion.

Any party dissatisfied with the decision of the commission on reconsideration may file a new petition for writ of certiorari.

Case Remanded.'


author: HOBSON, Judge.

text:
    HARDEE COUNTY COMMISSIONERS, Petitioners, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY and Raymond Johnson, Jr., Respondents.
    No. 76-481.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1976.
    Michael B. Murphy, of Stanley, Durrance & Wines, Auburndale, for petitioners.
    Kenneth H. Hart, Jr., Luther C. Smith, and Alex D. Littlefield, Jr., Tallahassee, for respondent Florida Dept, of Commerce, Division of Employment Security.
   HOBSON, Judge.

We review by certiorari an order of the Industrial Relations Commission affirming the decision of the appeals referee granting respondent Johnson unemployment compensation.

Here the petitioners, county commission, contend they were afforded no notice of the proceedings before the appeals referee, with the result being that the petitioners were denied the presence of a representative to present facts and evidence bearing on respondent Johnson’s claimed entitlement to unemployment compensation benefits. Section 443.07(4)(b)(2), F.S. 1966, provides as follows:

“Unless the appeal is withdrawn with his permission or is removed to the board of review, the appeals referee, after affording the parties a reasonable opportunity for a fair hearing, shall make findings and conclusions and on the basis thereof affirm, modify, or reverse such determination; provided, however, that whenever an appeal involves a question as to whether services were performed by a claimant in employment or for an employer, the referee shall give special notice of such issue and of the pendency of the appeal to the employing unit and to the commission, both of whom shall thenceforth be parties to the proceeding and be afforded reasonable opportunity to adduce evidence bearing on such question.” (emphasis supplied).

We think this case is controlled by the language in Lewis v. Hot Shoppes, Fla. App. 4th 1968, 211 So.2d 20, where the court said at page 21:

“Due process of law requires either proper notice of the issues to be heard or a basis in the record to show an informed and intelligent waiver of the same.”

Although Lewis, supra, involved the denial of notice to a claimant for unemployment benefits, we think due process requires that notice be accorded employers in equal degree, absent waiver. The question of whether petitioner ever received notice of the hearing before the appeals referee remains a question of fact.

Petition for certiorari is granted and this case is remanded to the Industrial Relations Commission for further proceedings to determine whether or not petitioners were afforded proper notice or waived the same.

McNULTY, C. J., and SCHEB, J., concur.


author: PER CURIAM. BOYER, Chief Judge

text:
    William Cowan Val BOSTWICK, Jr., et al., Appellants, v. ESTATE of Nell L. Cowan BOSTWICK, Appellee.
    Nos. Z-244, Z-281.
    District Court of Appeal of Florida, First District.
    Oct. 1, 1976.
    Rehearing Denied Dec. 23, 1976.
    Charles Cook Howell, Jr., of Howell & Searcy, Jacksonville, for appellants.
    J. D. Raye, and Chester Bedell of Bedell, Bedeílf Dittmar & Zehmer, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS, J., and MELVIN, WOODROW M., Sr., Associate Judge, concur.

BOYER, C. J., specially concurs.

BOYER, Chief Judge

(concurring specially)-

It has been said that one is not entitled to pure justice but only justice under the law. It has also been said that it is better that the law be certain than right. Although I adhere to that which was stated in my dissent in Bostwick v. Cowan, Fla.App. 1st 1976, 326 So.2d 454 and am of the view that application of the principles announced in In Re Will of Wickman, Fla.App. 2nd 1974, 289 So.2d 788, would more nearly insure the achievement of justice, I am persuaded that the path of ultimate disposition of this case was cast in our prior opinion above mentioned (Bostwick v. Cowan, supra) and only in deference to the doctrine of stare decisis do I concur here.


author: McCORD, Judge. RAWLS, Acting Chief Judge

text:
    Jesse ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. AA-312.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1976.
    Richard W. Ervin, III, Public Defender; and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Appellant appeals his judgment and sentence for aggravated assault. He was charged by information with assault “with intent to commit a felony, to wit: murder in the first degree.” He was arraigned, pled not guilty and the case was set for trial. Subsequently, he appeared before the court with his attorney, Assistant Public Defender Craig Dickinson. Assistant State Attorney Hal Richmond called the case and announced to the court that appellant was there on a motion of the public defender. The following proceedings then ensued:

“THE COURT: You have a motion, Mr. Dickinson?
MR. DICKINSON: Yes, Your Honor. We had offered a plea of not guilty at an earlier date. At this time, after having negotiated with the State, we would like to offer a plea of guilty to the lesser included offense of aggravated assault.
THE COURT: Is that what you want to do, Andrews?
THE DEFENDANT: Yes, sir.
THE COURT: You understand that if you plead guilty, then there will not be a trial; you will have no trial by a jury and no opportunity to confront your witnesses, and it’s left entirely up to the Judge as to what punishment is to be given and what’s to be done about this; And the maximum punishment for aggravated assault is five years in the State Prison. Are you aware of that?
THE DEFENDANT: Yes, sir.
THE COURT: And that is something that will be entirely up to the Judge as to whether to send you to prison or place you on probation or whatever.
THE DEFENDANT: Well, Your Honor, at the present time I’m already serving fifteen years.
THE COURT: What?
THE DEFENDANT: I’m already serving fifteen years.
THE COURT: You’re already serving a sentence?
THE DEFENDANT: I’ve did three years and four months.
THE COURT: Well, what did you do; what do you admit doing?
THE DEFENDANT: Well, we had a fight over at the Vocational Center. THE COURT: Where?
THE DEFENDANT: Over here at the Vocational Center.
THE COURT: What did you use in your fight?
THE DEFENDANT: He pulled a knife on me and I had a baseball bat.
THE COURT: You had what?
THE DEFENDANT: I had a baseball bat.
THE COURT: A baseball bat?
THE DEFENDANT: Yes, sir.
THE COURT: Are those the facts that you—
MR. RICHMOND: Yes, sir, he used a baseball bat on one of the other inmates.
THE COURT: —inmates of what, Apala-chee or where?
MR. RICHMOND: Pardon?
THE COURT: Where was he an inmate?
MR. RICHMOND: He’s an inmate over there at Quincy Vocational Center.
THE COURT: All right. Anybody made you any promises to get you to enter this plea?
THE DEFENDANT: No, sir.
THE COURT: —or any threats if you didn’t?
THE DEFENDANT: No, sir.
THE COURT: Are you doing this freely and voluntarily?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with the lawyer you had?
THE DEFENDANT: Yes, sir.
THE COURT: All right. I’ll accept it and refer it for presentence investigation.”

As his first point appellant contends that the court committed fundamental error in accepting a plea of guilty to aggravated assault when the information failed to allege the use of a weapon. Appellant correctly points out that aggravated assault is a Category 4 type lesser included offense within the higher offense of assault with intent to commit murder [see Brown v. State, 206 So.2d 377 (Fla.1968)] because assault with intent to commit murder may or may not involve the use of a deadly weapon. Whether or not aggravated assault is a lesser included offense depends upon whether or not the elements of the offense (in this case use of a deadly weapon) are included in the accusatory pleading and are also shown by the evidence. While the information in this case does not allege use of a deadly weapon, appellant admitted such use (use of a baseball bat) in answer to the court’s questions quoted above. Appellant’s contention now that he was convicted of a crime for which he was not charged is purely a technical one. It was appellant’s attorney who asked that he be allowed to plead guilty to the “lesser included offense of aggravated assault.” Thus, if the trial court’s acceptance of appellant’s plea was error, it was error which was induced by appellant. It would have been very easy at the time for the state to have filed an amended information charging assault with a deadly weapon (aggravated assault). Appellant, as above stated, admitted that he used a baseball bat in the assault. Under these circumstances, we find the error to be harmless rather than fundamental and that appellant cannot take advantage on appeal of an error which he himself induced. See Spadaro v. State, 332 So.2d 110 (Fla. 1 DCA 1976); Castle v. State, 305 So.2d 794 (Fla. 4 DCA 1975); cert. den. 317 So.2d 766 (Fla. 1975); McPhee v. State, 254 So.2d 406 (Fla. 1 DCA 1971).

Appellant contends by his second point that the court erred in accepting his guilty plea without first determining whether appellant was waiving the affirmative defense of self-defense. On the court’s inquiry to establish a factual basis for the plea (quoted above) appellant, referring to the victim, stated: “He pulled a knife on me and I had a baseball bat.” Appellant’s statement that the victim pulled a knife on him would indicate that appellant may have had a valid defense to the charge — self-defense. While before the Supreme Court rendered its opinions in Lyles v. State, 316 So.2d 277 (Fla.1975), and Williams v. State, 316 So.2d 267 (Fla.1975), it might have been a valid argument that by entering a negotiated plea defendant waived such a defense, it is now clear under the opinions in Williams and Lyles and the recent opinion in State v. Kendrick, 336 So.2d 353 (Fla.1976), that the trial court must make a more extensive inquiry into the factual basis than was made in the case sub judice when the record of the guilty plea affirmatively reveals the possibility of a defense. Compare also the recent opinion of the United States Supreme Court in Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).

This cause is remanded to the trial court for the following purposes: (a) to make inquiry of the defendant and his counsel concerning their discussions relative to the defense to the charge; (b) to receive evidence of a factual basis for the plea in the light of the possible defense of self-defense; and (c) to allow the defendant an opportunity to present evidence on his own behalf to show how, if at all, manifest injustice occurred by the acceptance of his plea. The trial court shall thereafter enter such order as it deems appropriate and should such order not vacate the judgment, sentence and guilty plea, appellant shall, within 15 days thereafter, file with this court a supplemental transcript including the proceedings here directed and the order of the trial judge thereon. With the transcript, appellant shall file such further brief as he may desire, and appellee may, within 10 days thereafter, file its further brief.

SMITH, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

Upon the proceedings and facts recited in the majority opinion, I would affirm the judgment of conviction appealed.


text:
    Nelson P. DAVIS, Sr. and Nelson P. Davis, Jr., Appellants, v. James W. MIDDLETON, Appellee.
    No. BB-197.
    District Court of Appeal of Florida, First District.
    Oct. 15, 1976.

      Dale E. Rice, Crestview, for appellants.
    Michael William Mead, of Middleton & Mead, Fort Walton Beach, for appellee.
   PER CURIAM.

Affirmed.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


author: SMITH, Judge.

text:
    H. G. SMITH d/b/a H. G. Smith Realty, Appellant, v. ST. GEORGE ISLAND GULF BEACHES, INC., a dissolved Florida Corporation et al., Appellees.
    No. DD-36.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1976.
    William L. Camper of Huey & Camper and David P. Hopstetter, Tallahassee, for appellant.
    Gene D. Brown of Brown, Pelham, McDonnell & Hart, Elaine N. Duggar of Richardson Law Offices, P. A., and Sam Spector, Tallahassee, for appellees.
   SMITH, Judge.

Smith, plaintiff in the trial court, appeals from an order dismissing his action against appellees Atkinson and Wilson for want of prosecution. Rules 1.420(e), R.C.P., and 4.2a, F.A.R. Other defendants in the Smith action, John Stocks, St. George Island Gulf Beaches, Inc., and Leisure Properties Ltd., a limited partnership, have cross-assigned error in the trial court’s denial of their similar motion to dismiss.

The Smith action seeks recovery of a broker’s commission allegedly contracted for by appellee St. George in connection with sale of its land to cross-appellant Stocks or his principal, cross-appellant Leisure. Smith seeks the same recovery alternatively against cross-appellant Leisure on grounds that its assets acquired from St. George should “in equity and good conscience” be subjected to. the debt; alternatively against cross-appellants Stocks and Leisure on grounds one of them was unjustly enriched by deducting the earned commission from the purchase price paid St. Georgé; alternatively against cross-appellants St. George, Leisure and Stocks and appellees Atkinson and Wilson, stockholders of St. George, for conspiracy to defraud appellant of his commission; and. alternatively against all but St. George for malicious interference with St. George’s contractual relations with appellant.

There was no record activity in the Smith action for more than a year. The question on Smith’s appeal is whether the trial court, in dismissing the action against Atkinson and Wilson, overlooked nonrecord activity sufficient to prevent their dismissal. And, on the cross-appeal, the question is whether the trial court erroneously regarded nonrec-ord activity between Smith’s and Stocks’ counsel sufficient to preserve Smith’s action not only against Stocks but also against St. George and Leisure. Therefore, the issue is whether nonrecord activity may be sufficient to prevent dismissal of plaintiff’s complaint as to three jointly-sued defendants, but insufficient to prevent its dismissal as to two others.

The nonrecord activity on which Smith relies is his participation during the year as a party defendant in other litigation over the same brokerage commission. Shellie Rowell, Smith’s former employee, filed that action to recover his share of the disputed brokerage commission from Smith and Stocks on grounds it was either owed by Stocks or wrongfully relinquished by Smith.

The trial court evidently found, and we agree, that purposeful activity involving Smith’s and Stocks’ counsel in the Rowell action tended to advance the Smith action toward disposition’ in the same sense that'-nonrecord exchange of information-and’evidence may be said to advance an action. See Musselman Steel Fabricators, Inc. v. Radziwon, 263 So.2d 221 (Fla.1972); Ed-dings v. Davidson, 302 So.2d 155 (Fla.App. 1st, 1974); Leverenz v. Schmieder, 294 So.2d 690 (Fla.App. 3d, 1974), cert. den. Fla., 306 So.2d 203. Even if initiative in the Rowell activity lay with Stocks’ counsel, participation by Smith’s counsel was not passive but purposeful. Eastern Elevator, Inc. v. Page, 263 So.2d 218 (Fla.1972).’ We regard it as irrelevant that the purpose' of’ advancing the Smith action by activity in the’ Rowell case was Smith’s purpose alone, not Stocks’. Stocks’ motion to dismiss for lack of prosecution was properly' denied.

Having found nonrecord áctivity by Smith’s and Stocks’ counsel, the trial court preserved Smith’s action not only against Stocks but.also against St. George and Leisure, in which Stocks was a principal stockholder and partner. Neither- St. George nor Leisure was party to the Rowell action, although their lawyer in the Smith action represented Stocks in both actions. Evidently the trial court considered that the lawyer’s common representation and the business relationship of Stocks, St. George and Leisure effectively extended the influence of activity in Rowell through Stocks to St. George and Leisure, defendants only in Smith. The associational theory did not serve, in the trial court’s view, to save Smith’s action against Atkinson and Wilson.

It is ironic and perhaps characteristic of human endeavor of this kind that a Rule designed to relieve the judiciary of concern for inactive litigation should itself produce such a spate of litigation, full of labored analyses of activity and nonactivity. We think it inappropriate to compound the question by distinguishing between those parties who were touched by nonrecord activity and those who were not. We conceive that any nonrecord activity between Smith’s and Stocks’ counsel which tended to advance the Smith action sufficed to save it not only against Stocks and his associated business entities but also against Atkinson and Wilson, who were jointly sued. Rule 1.420(e) speaks of the dismissal of actions, not parties, for nonprosecution; and in Eastern Elevator, supra, it was recognized that action by one defendant within the year was sufficient to foreclose dismissal at the instance of another defendant. Stated another way, plaintiff’s obligation is only to show progress in the case, not progress between himself and each defendant. DeVaney v. Rumsch, 247 So.2d 69 (Fla.App. 1st, 1971). To be distinguished are decisions which consider as separate and unique the interests of nominal defendants not served with process or otherwise brought within the court’s jurisdiction. Koppers Co., Inc. v. Victoire Devel. Corp., 284 So.2d 193 (Fla.1973); Crouse-Hinds Co. v. Capellia, 302 So.2d 800 (Fla.App. 4th, 1974).

To the extent that the order appealed dismisses Smith’s action, it is

REVERSED, otherwise AFFIRMED.

MILLS, Acting C. J., and MeCRARY, ROBERT L., Jr., Associate Judge, concur.


text:
    James E. ZEDALIS et al., Appellants, v. Helen C. FOSTER et al., Appellees.
    No. 76-203.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1976.
    Michael B. Steeves, Clearwater, for appellants.

      William D. Johnson, of Robinson, Mac-pherson, Johnson & Harper, and James A. Helinger, Jr., Clearwater, for appellees.
   NORRIS, WILLIAM A., Jr., Associate Judge.

The trial judge dismissed with prejudice appellants’ complaint alleging that the Board of County Commissioners of Pinellas County failed to give proper notice of a public hearing wherein the commissioners vacated a small road commonly known as Bayshore Drive in the community of Ozona. The trial judge found that the notice provisions of the general law as now contained in Chapter 336, Florida Statutes (1975), controlled over the notice provisions of a 1949 special act relating only to Pinellas County. We agree and affirm.

The special act, Chapter 26155, Laws of Florida, Sp.Acts 1949, required, among other things, that notice be published for two consecutive weeks. In 1955 the legislature enacted Chapter 29965, Laws of Florida, consisting of 169 sections, in order to clarify and codify the laws of the state relating to all public roads, state, county and city. This act was identified as the “Florida Highway Code of 1955” and now appears in part as Chapter 336, Florida Statutes (1975). Section 336.10, Florida Statutes, requires the commissioners to publish only one notice of public hearing prior to vacating a road. This was done by the Pinellas County Commission.

The trial judge was faced with apparently conflicting statutory requirements. Basic rules of statutory construction require that conflicting statutes or parts of statutes be reconciled wherever possible. When reconciliation is not possible the maxim generalia speeialibus non derogant would normally apply, thereby retaining the effectiveness of the special act notwithstanding a subsequent general act on the same subject. However, where, as in this case, the general act is an overall revision or general restatement of the law on the same subject, the special act will be presumed to have been superseded and repealed. Town of Palm Beach v. Palm Beach Local 1866, I.A.F.F., 275 So.2d 247 (Fla.1973). The legislature’s complete revision of a subject is an implied repeal of earlier acts dealing with the same subject unless the contrary intent is clearly shown. Where an act is intended to cover an entire subject of legislation it operates to repeal all former acts dealing with the same subject. Orange City Water Company v. Town of Orange City, 255 So.2d 257 (Fla.1971).

Accordingly, the ordei of the trial judge dismissing the complaint herein with prejudice is

AFFIRMED.

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


text:
    PEACOCK CONSTRUCTION COMPANY, INC., a Florida Corporation, Appellant, v. OVERLY MANUFACTURING COMPANY, Appellee.
    No. 76-955.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1976.
    Archie M. Odom, Farr, Farr, Haymans, Moseley & Odom, Punta Gorda, for appellant.
    Harvey B. Goldberg, Goldberg, Rubinstein & Buckley, Fort Myers, for appellee.
   PER CURIAM.

Affirmed. See Peacock Construction Co., Inc. v. Modern Air Conditioning, Inc., 339 So.2d 294 (Fla.2d DCA 1976).

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


text:
    Andrew P. SERAFINO et ux., Appellants, v. PALM TERRACE APARTMENTS, INC., Appellee.
    No. 76-264.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1976.
    Charles J. Cheves, Jr., of Cheves & Hazen, Venice, for appellants.
    Jack McGill, of Berg & McGill, and T. Lamar Hazen, Jr., Venice, for appellee.
   SCHEB, Judge.

Appellants, as plaintiffs below, sued defendant/appellee, alleging it interfered with the plaintiffs’ contractual relations with Lola McGlocklin Elam by refusing to approve transfer of Elam’s cooperative apartment leasehold to the plaintiffs. A nonjury trial resulted in judgment of $700 for the plaintiffs against the defendant, a nonprofit corporation responsible for approving transfer of leaseholds in the apartment complex. This appeal and cross appeal ensued with the plaintiffs contending the trial court erred in limiting their recovery to $700 and by refusing to also grant judgment against the members of defendant’s board of directors, while defendants urge us to hold the trial judge erred in failing to dismiss plaintiffs’ suit on grounds no cause of action was established. We agree with defendant’s position on its cross appeal. We reverse.

To establish the tort of interference with a contractual or business relationship between parties, it is necessary for the plaintiffs to allege and prove:

“(1) the existence of a business relationship under which the plaintiff has legal rights, (2) an intentional and unjustified interference with that relationship by the defendant, and (3) damage to the plaintiff as a result of the breach of the business relationship.” Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla. 4th DCA 1971); Nichols v. MoAmCo Corp., 311 So.2d 750 (Fla. 2d DCA 1975).

Here the plaintiffs established they had entered into a contract with Elam to acquire her leasehold interest in Apartment No. 14 of Palm Terrace Apartments. That contract required Elam to convey title by “proper assignment of lease.” The lease under which Elam holds her interest provides:

“9. The Lessee may not assign, sell, transfer or sub-lease any of his rights under the lease without the written consent of the Lessor (acting through its Board of Directors), which consent, however, shall not be unreasonably withheld. In granting such consent, the Lessor may take into consideration the desirability of the prospective sub-lessee, assignee or transferee to the end that PALM TERRACE APARTMENTS will be occupied by persons of high moral standards and persons socially acceptable to the other Lessees of PALM TERRACE APARTMENTS. ...”

Evidence before the trial court showed that plaintiffs explained to the defendant’s Credentials Committee that they were purchasing Elam’s apartment as an investment with the intention of renting it to others. Since most of the apartment owners in that complex were retirees, the Committee determined it would be incompatible to the other lessees to allow assignment of Elam’s lease to a nonresident owner. The defendant’s board of directors agreed and declined to approve the proposed assignment to plaintiffs.

Essentially, the issue we reach on the cross appeal is whether or not the defendant Palm Terrace may be held liable to the plaintiffs for intentional interference with contractual relations when the defendant is acting under a pre-existing contract between it and Elam. We are not here dealing with the question of whether there has been a breach of its contract with Elam by the defendant unreasonably withholding its consent to the proposed transfer. There are a legion of cases which hold that such a cause of action lies when a lessor acts unreasonably. See Annotation in 54 A.L.R.3d 679 (1973).

The law recognizes that a contracting party has a justification or privilege to interfere where necessary to protect that party’s own contractual rights provided such interference is without malice. 45 Am.Jur.2d, Interference, Section 29. And, although the texts and cases are somewhat imprecise in their treatment of the subject of privilege, the following statement by the Ohio courts appears to bring the subject into proper focus:

“One who purposely causes a third person not to enter into or continue a business relation with another in order to influence the other’s policy in the conduct of his business is privileged if (1) the actor has an economic interest in the matter with reference to which he wishes to influence the policy of the other, (2) the desired policy does not illegally restrain competition or otherwise violate a defined public policy, and (3) the means employed are not improper.” Petty v. Dayton Musicians’ Assoc., 153 N.E.2d 218 (Ohio Com. PI. 1958), aff’d. 153 N.E.2d 223 (Ohio App.).

In its lease arrangement with Elam the defendant reserved the right to be involved in any assignment of her leasehold interest. The defendant’s interest under the contract is sufficient to allow it to invoke the right or privilege to interfere. For the plaintiffs to have succeeded, it was necessary for them to plead and prove that the defendant, as a third party, acted maliciously. Hunter Lyon, Inc. v. Walker, 152 Fla. 61, 11 So.2d 176 (1942). There was no such allegation or proof. On the contrary, the defendant’s board of directors simply made a judgment on a matter directly related to its interest in having its apartment complex occupied by persons socially acceptable to the other lessees. The defendant’s actions were exercised for proper purposes and through appropriate means. No malice toward the plaintiffs was established. Whether that judgment was unreasonable is a matter of contract between Elam and the defendant. But, even if unreasonable, the defendant’s action did not give rise to a tort action in favor of a third party since the defendant was privileged to act by proper means to protect its own rights from being prejudiced by the plaintiffs. D & S Farms v. Producers Cotton Oil Co., 16 Ariz.App. 180, 492 P.2d 429 (1972), citing W. Prosser, the Law of Torts, § 123, at 969 (3d Ed. 1964). Cf. Babson Bros. Co. v. Allison, 337 So.2d 848 (Fla. 1st DCA 1976).

Accordingly, we hold the defendant was privileged to attempt to prevent performance by Elam by declining to approve the transfer of her leasehold to the plaintiffs. It is, therefore, unnecessary to reach the points raised by the appellants.

We reverse and direct the trial court to vacate the judgment previously entered against the defendant/appellee.

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


author: McNULTY, Chief Judge.

text:
    CITY OF CLEARWATER, a Municipal Corporation, Petitioner, v. JANET LAND CORPORATION, Respondent.
    No. 76-854.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 1976.
    Rehearing Denied Jan. 10, 1977.

      Francis X. Kowalski, Jr., Clearwater, for petitioner.
    H. Rex Owen of Owen & McCrory, St. Petersburg, for respondent.
   McNULTY, Chief Judge.

In this eminent domain proceeding, the City of Clearwater brought this petition for certiorari to review an order setting aside its previously entered Order of Taking. We hold that the trial court departed from the essential requirements of law to the irrevocable substantial injury to the City and grant certiorari.

The record shows that on January 15, 1975, the City filed its amended complaint against respondent to condemn certain specifically described lands. The City alleged that it had prepared a survey and filed it in the office of the Clerk of the Circuit Court. Additionally, a copy of its resolution of necessity and the ordinance authorizing condemnation were attached as exhibits. The City then filed an amended declaration of taking and a motion for an order of quick taking on February 5, 1975. Respondent filed a motion to dismiss but never filed an answer to the amended complaint.

A hearing was held and an order of quick taking was entered on September 5, 1975 entitling petitioner to possession of the property. There was no appeal by respondent from this order.

Thereafter, on April 2, 1976, respondent filed a motion to set aside the order of taking contending that the court lacked jurisdiction to enter it. Respondent argued that the City’s failure to offer in evidence or otherwise prove the resolution of necessity, the ordinance authorizing condemnation and the survey of the property deprived the court of jurisdiction over the subject matter and the parties. The court granted the motion and set aside the Order of Taking on the grounds that the court did indeed lack jurisdiction for those reasons. The order also revested title to the property in respondent and directed petitioner to remove all of its equipment from the land. We quash this order.

There is no question of lack or insufficiency of process, so the court had jurisdiction over the parties. With respect to jurisdiction over the subject matter, it is the matters set forth in the complaint together with the nature of the relief sought which determine subject matter jurisdiction. This being an eminent domain proceeding in which sufficiently described lands, undeniably within the territorial jurisdiction of the trial court, were to be condemned, there can be no doubt but that the trial court had jurisdiction over the subject matter.

Now with respect to whether an accurate survey and a proper resolution of necessity and ordinance authorizing the condemnation must be introduced in evidence or otherwise proved prior to an order of quick taking, this matter only goes to the correctness vel non of the order of quick taking, not to jurisdiction over the parties, the property or of the subject matter. For pleading purposes invoking the jurisdiction of the court, it is necessary only that copies of the resolution and ordinance be attached to the complaint and that an allegation be made that a prepared survey had been filed with the Clerk of the Circuit Court. This was done in this case.

True it is that perhaps these specific prerequisites should have to be established or proved prior to an order of taking and certainly before a final judgment, but the entry of an order of taking prior to their having been proved is not void for lack of jurisdiction, although it may be reversible on proper review if they were put in issue prior thereto. No timely review having been sought, however, the order should stand.

In view whereof, the order quashing the prior order of quick taking,should be, and it is hereby, quashed and set aside; and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON and BOARDMAN, JJ., concur.

      . See Tosohatchee Game Preserve, Incorporated v. Central and Southern Florida Flood Control District, 265 So.2d 681 (Fla.1972).

      . See Sec. 73.021(5), Fla.Stat. (1975).

      . See Ball v. City of Tallahassee, 281 So.2d 333 (Fla. 1973).


text:
    J. Fred RISK and Charles W. Robertson, not Individually, but as Trustees of Indiana Mortgage & Realty Investors, Appellant, v. BARNETT BANK OF ST. PETERSBURG, N. A., a National Banking Association, et al., Appellees.
    No. 76-1032.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 1976.
    William C. Martin, III, of Akerman, Sen-terfitt & Eidson, Orlando, for appellant.
    David T. Henniger of Lloyd & Henniger, P. A., St. Petersburg, for appellee Barnett Bank of St. Petersburg, N. A.
    Douglas J. Loeffler of Fox, George Loef-fler & Downey, P. A., Clearwater, for ap-pellee Peninsular Title Ins. Co.
    Richard T. Earle, Jr., of Earle, Earle & Forizs, St. Petersburg, for appellee Joseph H. Chumbley.
    Charles S. Carrere of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appellee Reliance Ins.- Co.
   PER CURIAM.

Affirmed on the authority of Federal Land Bank of Columbia v. Dekle, 108 Fla. 555, 148 So. 756 (1933), and Federal Land Bank of Columbia v. Godwin, 107 Fla. 537, 136 So. 513,145 So. 883 (1933); see Brannon v. Hills, 111 Fla. 491, 149 So. 556 (1933).

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


text:
    DEPARTMENT OF REVENUE, State of Florida, Appellant, v. T. T. WATSON et al., Appellees.
    No. 75-1721.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 1976.

      Robert L. Shevin, Atty. Gen., Sydney H. McKenzie, III, Chief Trial Counsel, and Joseph C. Mellichamp, Tallahassee, for appellant.
    William G. Lambrecht of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for appellees.
   ON AMENDED PETITION FOR REHEARING

PER CURIAM.

This court affirmed the trial court in our original opinion for the reasons stated in Florida Department of Revenue v. DeMaria, 321 So.2d 101 (Fla. 1st DCA 1976). At the time of our original opinion there was pending before the Florida Supreme Court on a petition for certiorari the DeMa-ria case.

This court issued an order staying our mandate in this case pending the determination by the Supreme Court of the petition for certiorari in DeMaria. The Supreme Court in an opinion filed October 14, 1976, 338 So.2d 838, quashed the decision of the First District Court in DeMaria, which opinion has now become final.

The exact issue involved in this case was involved in DeMaria. Therefore, for the reasons stated in the Supreme Court opinion in DeMaria, the final judgment entered in this case is reversed and remanded to the trial court for further proceedings.

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


author: RAWLS, Acting Chief Judge.

text:
    Reginald F. HAMMER, Appellant, v. STATE of Florida, Appellee.
    No. BB-57.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

The ghost of Hand and Brown continues to hover above the trial bench as to its responsibility to give requested instructions on lesser included offenses in a criminal trial.

Appellant Hammer was charged by an indictment of committing the crime of robbery. The trial court instructed the jury on robbery and on the lesser offense of attempted robbery and, in so instructing, advised the jury that it could bring in one of three verdicts: 1) not guilty, 2) guilty of robbery, or 3) guilty of attempted robbery. Hammer’s trial counsel specifically requested the trial court to instruct the jury on the lesser included offense of assault with intent to commit robbery, aggravated assault, and petit larceny, upon the theory that such offenses are within the dictates of the Supreme' Court’s- Brown decision.

In rejecting the foregoing request, the trial court- observed:

. . I find it difficult to believe that a jury could logically and legitimately determine that assault with intent to commit the crime, aggravated assault or petit larceny could in this instance, in view of the proof shown, be considered lesser offenses.
Now it is the interpretation of this Court of the Brown Decisions and the Anderson Decisions that the Court, of the Supreme Court of Florida, in the Gilford Case expressly overruled those portions of those decisions wherein the Court was mandated to charge on all lesser included offenses, and left it to the point wherein only when there was proof submitted that would enable the jury to determine guilt of a lesser offense should the Court charge on-it.” (emphasis supplied)

The views espoused by the trial judge coincided with this court’s pronouncements in Silver v. State, Johnson v. State, Hand v. State, and Brown v. State. However, in reviewing this court’s decision in Hand the Supreme Court, after observing that as a matter of law every robbery necessarily includes the crime of larceny, concluded that the trial court was obligated to give the requested charge on larceny. And in an obvious effort to resolve this question, the Supreme Court held: “Any prior appellate decisions conflicting with the principle announced herein are overruled.” ,

In reviewing our decision in Brown, Mr. Justice Thornal, speaking for the Supreme Court, set forth explicit guidelines for the bench and bar as to the giving of instructions upon - lesser included offenses. "One example given in Brown was that in order to prove a robbery the state must necessarily prove a larceny as an essential element of the major offense.

The trial court expressly found that Gil-ford, supra, overruled those portions of the Supreme Court’s decisions in Brown and Anderson mandating a charge on all lesser included offenses. At first blush, the trial court’s reading of Gilford was correct for there the court stated:

“. . . The notion of having to charge the jury on something on which there is no proof makes a mockery of the trial, and of the result which will occur if a new trial — or dismissal — would necessarily follow where the verdict finds no support in the record.”

However, as Justice Dekle pointedly observed and reiterated, Gilford involved a category (4) situation as defined by Justice Thornal in Brown. Also, Gilford reaffirmed Brown in every respect, seeking “in a hopeful effort to clarify further and to ‘place at rest’ the milestone case of Brown v. State, supra, and to forestall the seemingly endless attempts to erode and confuse Brown and its progeny.”

But, as illustrated here, and in the recent opinion of the Supreme Court in State v. Terry which the court reviewed upon our certification that the issues presented a question to be of great public interest, the body of the Brown decision refuses to be “placed at rest.” Terry was charged with the crime of assault with intent to commit murder in the first degree. The trial court failed to instruct the jury on the lesser included offenses of assault and battery and bare assault. Terry was convicted of aggravated assault. On appeal, this court, after observing that Terry shot the victim with a pistol and interposed a plea of self defense, held that the trial court did not err in refusing to instruct the jury on the lesser included offenses of assault and battery and bare assault. In an opinion authored by Circuit Judge Siegendorf, the Supreme Court, in holding: “Just as it is legally impossible to prove a robbery without also proving a larceny, so too it is legally impossible to prove an assault with intent to commit murder in the first degree without also proving a bare assault.”, concluded that if sufficient evidence was adduced upon which to instruct the jury on the major offense of assault with intent to commit murder in the first degree, the trial judge should have instructed the jury on the necessarily included offense of bare assault. The Terry court further held that since the accusatory pleading charged the defendant with shooting the victim and the evidence revealed that the victim was shot, it was apparent that the major crime for which the defendant was charged did include the lesser offense of assault and battery (a category (4) situation) and held that the refusal to so charge was reversible error.

As stated by Justice Adkins in State v. Anderson, supra: “The criminal law of this State regarding lesser included offenses has been the subject of much judicial uncertainty, resulting in vague appellate opinions reaching different conclusions on identical facts.”

We opt for the views expressed many times by this court which may be summarized, as expressed by Justice Dekle in Gil-ford, as: “No evidence; no jury charge.” However, we are bound by the latest decisions of the highest court which mandate the reversal of the instant case.

Appellant Hammer was charged with robbery. It is legally impossible to prove a robbery without also proving a larceny. The evidence is undisputed that not more than $80.00 was stolen. The trial court should have given Hammer’s requested instruction on petit larceny, a necessarily included offense as defined in Brown’s category (3). The indictment charged Hammer with “by force, violence, assault or putting in fear, rob or steal”, and the evidence reflected that Hammer pointed a .22 caliber sawed-off rifle and a .25 caliber pistol at the victim in perpetrating the robbery. The trial court, pursuant to the dictates of Brown’s category (4) and' the Supreme Court’s opinion in State v. Terry, should have given the requested aggravated assault instruction to the jury.

Upon the authority of the Supreme Court’s decisions in Brown v. State, supra, and State v. Terry, supra, we reverse for a new trial.

MILLS and SMITH, JJ., concur.

      . Hand v. State, 199 So.2d 100 (Fla.1967).

      . Brown v. State, 206 So.2d 377 (Fla.1968).

      . Brown v. State, supra; State v. Anderson, 270 So.2d 353 (Fla.1972); and Gilford v. State, 313 So.2d 729 (Fla.1975).

      . Silver v. State, 174 So.2d 91 (1 Fla.App.1965).

      . Johnson v. State, 173 So.2d 487 (1 Fla.App.1965).

      . Hand v. State, 188 So.2d 364 (1 Fla.App.1966).

      . Brown v. State, 191 So.2d 296 (1 Fla.App.1966). See also Rafuse v. State, 209 So.2d 260 (1 Fla.App.1968), cert. den: 214 So.2d 626 (Fla.); and Terry v. State, 302 So.2d 142 (1 Fla.App.1974). that the evidence was not susceptible of the inference by the jury that the larceny was accomplished without force.

      . Thus, the Supreme Court brought the larceny instruction within the mandatory category (3), holding in Brown, viz.:
      “(3) Necessarily included offenses should always be covered by an instruction,- even though the trial judge is satisfied that the major crime charged has also been proved. If the evidence is sufficient to go to the jury on the major crime then the necessarily included offense instruction should be givep.”

      .Defendant Hand was charged with robbery. The trial court refused to instruct on the lesser included offense of larceny. This court found

        .State v. Terry, 336 So.2d 65 (Fla.1976).

      . Terry v. State, 302 So.2d 142 (1 Fla.App.1974).

      . The state points out that two justices and two circuit judges reverted to the Supreme Court’s Brown decision, while three justices dissented. It then opines the view that “there is a substantial likelihood that Gilford, not Terry, will be the last word on this subject, since the State need only convince one of the two justices of unknown persuasion to prevail.”


text:
    Thomas J. McGOVERN, Appellant, v. Sam AMIRA, etc., et al., Appellees.
    No. 76-190.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1976.
    Appeal Dismissed Feb. 15, 1977.
    Thomas J. McGovern, pro se.
    DiGiulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauderdale, for appellees.
   ORDERED, on consideration of appellant’s Petition for Rehearing the previous opinion filed August 31, 1976 is hereby withdrawn and in lieu thereof jurisdiction is temporarily relinquished to the trial court for a period of sixty (60) days from the date of this order, for the purpose of determining and clarifying the status of the Order of December 23,1975 holding appellant in contempt, which order is the subject of this appeal, in light of the representations of counsel that the trial court vacated the order of October 6, 1975, the non compliance with which gave rise to the entry of the December 23, 1975 order of contempt.

ORDERED upon February 10, 1977 Motion of Appellant, the above-styled Interlocutory Appeal commenced by the filing of a Notice of Interlocutory Appeal on January 21, 1976 in Broward County Circuit Court Case No. 75-12256, is hereby dismissed on the grounds that the Trial Court ruled that the appellant’s non-compliance with the void order of October 6, 1975 is of no force and effect and that the December 23, 1975 Order of Contempt is therefore null and void.


author: GRIMES, Judge.

text:
    Suzanne L. ERWINE, Appellant, v. GAMBLE, POWNAL & GILROY, ARCHITECTS AND ENGINEERS, et al., Appellees.
    No. 75-917.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1976.

      Robert Orseck, of Podhurst, Orseck & Parks, P. A., Miami, and Ronald A. David, of Wagner, Cunningham, Vaughan, May & Genders, Tampa, for appellant.
    Charles W. Pittman, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee Gamble, Pownal & Gilroy.
    Lawrence J. Robinson, of Drymon, Robinson & Clark, Sarasota, for appellee University of South Florida.
    Charles E. Miner, Jr., General Counsel, Herbert D. Sikes, Counsel, and John D. Carlson, Counsel, State Board of Education, Tallahassee, for appellees State of Florida, State Bd. of Education, Bd. of Regents of the State of Florida, Dept, of Education of the State of Florida, and State University System of the State of Florida.
   GRIMES, Judge.

This is an appeal from a final judgment dismissing the plaintiff’s complaint with prejudice against all defendants.

According to the complaint, the plaintiff, who was a student at the University of South Florida, fell into a pit created by a lowered area of the stage in a theater classroom auditorium on the campus of the University. The complaint alleged that the stage and pit area had been negligently designed by a firm of architects and engineers (hereafter called the architects). The University of South Florida and a number of other entities of the state were also joined as defendants upon theories of negligence and implied contract.

Apparently, the complaint against the architects was dismissed because it failed to allege the time when the negligent acts were committed. The plaintiff chose not to amend to include this allegation, so the complaint was dismissed with prejudice*

The question of when the allegedly negligent acts were committed may ultimately prove crucial because of the statute of limitations. However, the statute of limitations is an affirmative defense. Fla.R. Civ.P. 1.110(d). To be sure, the rule also provides that if an affirmative defense appears on the face of the complaint, the complaint may be challenged by a motion to dismiss. However, there is nothing to compel the plaintiff to allege facts which might give rise to an affirmative defense so long as the complaint otherwise states a cause of action. B.B.S. v. R.C.B., 252 So.2d 837 (Fla. 2d DCA 1971); Stern v. First National Bank of South Miami, 275 So.2d 58 (Fla. 3d DCA 1973).

The architects’ reliance on Fla.R. Civ.P. 1.120(f) is misplaced. This rule simply provides that for the purpose of testing the sufficiency of a pleading, averments of time and place are material. Thus, if a time is alleged which reflects the bar of the statute of limitations, this may be raised by motion to dismiss under Fla.R.Civ.P. 1.110(d).

In construing Federal Rule of Civil Procedure 9(f) which is similar to Fla.R.Civ.P. 1.120(f), 5 C. Wright and A. Miller, Federal Practice and Procedure, § 1309, pp. 439-440 (1969), states:

“It should be made perfectly clear that Rule 9(f) does not require the pleader to set out specific allegations of time and place; it merely states the significance of these allegations when they actually are interposed. . . . ”

The treatise then goes on to point out that whether or not allegations of time and place are required is determined by the substantive nature of the suit. Accord, Jones v. United Gas Improvement Corporation, 383 F.Supp. 420 (E.D.Pa.1975).

In essence, allegations of time and place are necessary only if without them the statement of the claim is so vague and ambiguous that the other party cannot adequately frame an answer. Such is not the case with respect to this complaint. The date upon which the accident occurred is alleged, and the allegations of negligence are sufficiently set forth as to acquaint the architects with the charges so that they may intelligently answer them. Therefore, the complaint as against the architects should not have been dismissed.

The complaint against the University and the other state entities was dismissed because the accident occurred at a time when the legislature had not removed sovereign immunity. The case of Circuit Court of the Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976), (Opinion filed November 24, 1976) recently decided by the Supreme Court makes it abundantly clear that the complaint was properly dismissed against all of the state related defendants. See also Davis v. Watson, 318 So.2d 169 (Fla. 4th DCA 1975).

The judgment to the extent that it dismisses the complaint against the architects is reversed; in all other respects it is affirmed.

McNULTY, C. J., and HOBSON, J, concur.


text:
    INDEPENDENT FIRE INSURANCE COMPANY, Appellant, v. Norman Lee HORN and Ceola Horn, his wife, Appellees.
    No. AA-137.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1976.
    Rehearing Denied March 24, 1977.

      Andrew G. Pattillo; Jr., of Pattillo, MacKay & McKeever, P.A., Ocala, for appellant.
    Gregory E. Tucci, of Blowers, Walkup,' Berk & Tucci, Ocala, for appellees.
   SMITH, Judge.

Independent appeals from a circuit court judgment awarding fire insurance benefits of $2,000 and attorney’s fees to appellees Horn, whose five-room frame dwelling was destroyed by fire. Independent paid the Horns $1,000.for loss of insured contents hut resisted paying benefits-for, the dwelling itself because of asserted. misrepresentations in the printed application completed by an insurance agent and . signed by Ms. Horn. Independent tendered repayment of the premiums paid for coverage on the dwelling.

In the blank where other insurance ■on the dwelling was to be described, the word “none” was written. A space in the application following the statement, “the property described is free of any mortgage, loan deed, title retention contract or other financial encumbrance except as follows,” was left blank. In fact, the property was encumbered by the Horns’ mortgage to Gulf Shore Dredging Company, which maintained a $6,000 fire insurance policy issued by American Security Insurance Co. American paid benefits in due course to the mortgagee.

Following a nonjury trial, the trial court found that Independent, “realizing the type of persons the HORNS were and are now, failed to ascertain sufficient information from the HORNS relative to ‘other insurance’ and whether or not said property to be insured was encumbered'by a mortgage when taking the insurance application”; and, further, that Independent would in any event have issued the policy notwithstanding its knowledge of the undisclosed facts, at the same rate and for the same benefits.

The Horns, who are not educated people, of course knew their dwelling was mortgaged when they applied for Independent’s policy. They testified they also knew the mortgagee insured the dwelling when they purchased it in 1965, and for 2 years thereafter, but denied knowledge of other insurance when they applied for the Independent policy in October 1972. Substantial evidence therefore supports the trial court’s finding that “they were unaware of the existence of other insurance .

There is less support in the record for the trial court’s finding that Independent, had it known the facts, would have issued the same policy anyway. Independent’s uncon-tradicted evidence was that, to - avoid ove-rinsuring the property, it “in most cases . just simply reject[s] the policy if it already has insurance on it,” and that “we normally assume” there is other insurance if the property is mortgaged. If the application reveals a mortgage, Independent inquires of the mortgagee concerning the existence and amount of other insurance.

The question before us, therefore, is whether the policy was vitiated by Ms. Horn’s submission of an innocent but incorrect answer to the inquiry concerning insurance or by her failure to reveal the mortgage in response to a pertinent inquiry.

In Life Ins. Co. of Virginia v. Shiffiet, 201 So.2d 715 (Fla.1967), the Supreme Court held that misrepresentations in an application for insurance, material to acceptance of the risk, vitiate the policy even if made by an applicant without knowledge of the representations’ incorrectness. That holding was questioned in National Standard Life Ins. Co. v. Permenter, 204 So.2d 206 (Fla.1967), in which the Court discharged certio-rari for lack of conflict jurisdiction but added, in Mr. Justice Ervin’s concurring opinion which was joined in by three other justices, that incorrect answers on an insurance application should not invalidate the policy in cases in which (1) the applicant in good faith makes “an erroneous expression of opinion or judgment” or (2) the applicant misunderstands an inquiry which is “couched in language or refer[s] to subjects and special fields beyond his or their understanding.” 204 So.2d at 207. Mr. Justice Ervin cautioned that this more lenient view of representations in insurance applications ought not to prevail if the applicant carelessly made positive statements of which he had no knowledge and should reasonably have revealed he was without sufficient information to answer properly, nor if the applicant incorrectly answered a question he “understood or reasonably should have understood” or concerning which the applicant could reasonably have been expected to reveal his lack of knowledge. In Garwood v. Equitable Life Assur. Soc. of U. S., 299 So.2d 163 (Fla.App.3d DCA 1974), cert. den., 321 So.2d 553 (Fla.1975), the District Court of Appeal adopted Mr. Justice Ervin’s views as expressed in Permenter and held Garwood’s policy was invalidated because he

“. . . did have sufficient information to have answered the specific questions on the insurance application differently from the answers which in fact he gave.” 299 So.2d at 165.

Although Ms. Horn’s signed application contained a positive statement that there was no other insurance on the property, the trier of the facts effectively found she did not know other insurance was in force and, because of her general lack of understanding, she could not reasonably have been relied on to reveal her lack of knowledge concerning the mortgagee’s insurance. Her signing and submitting an application that erroneously answered “none” to the inquiry concerning other insurance does not, therefore, vitiate the policy.

Independent’s inquiry concerning mortgages was motivated at least in part by its experience that a mortgagee “normally” insures the property to the extent of its security interest. Independent was therefore entitled to a disclosure of the Gulf Shore mortgage in the space provided in the application for that purpose. A misrepresentation that there was no mortgage, a fact material to acceptance of the risk, would normally vitiate a policy issued in response to the application. Even assuming Ms. Horn was fully responsible for omitting to answer the inquiry concerning mortgages, however, there was no misrepresentation, only a failure to answer the question or to complete the dangling statement. A failure to answer or fill in the blank is not equivalent to answering in the negative. Absent an intent to deceive, of which the trial court found none, Ms. Horn’s incomplete response to questions in the application gave Independent adequate reason to reject the application, but no right to disclaim coverage under a policy once issued. See Fisher v. Missouri State Life Ins. Co., 97 Fla. 512, 121 So. 799 (1929); 9 G. Couch, Cyclopedia of Insurance Law § 38:68 at 382-83 (2d ed. 1962); 4 J. Appleman, Insurance Law and Practice § 2512 at 610-611 (1969); 16A id. § 9252 (1968). See also 12 id. § 7356 (1943).

AFFIRMED. Fees for the appellate services of thek Horns’ attorney will be awarded by the trial court.

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

ON PETITION FOR REHEARING

SMITH, Judge.

As indicated in my earlier opinion in behalf of the court, the application signed by Ms. Horn contained the following declaratory statement:

“It is warranted that the property described is free of any mortgage, loan deed, title retention contract or other financial encumbrance except as follows:
Mortgagee Name
Mailing Address — Street or P.O. Box
City State Zip Code
“I declare that the statements and answers above are complete and true and are written strictly in accordance with my directions.”

Independent’s petition for rehearing is correct in calling attention to the unarticu-lated holding, in the last paragraph of the opinion, that an applicant’s failure to fill in a blank space following a declaratory statement is equivalent to an applicant’s failure, in such a blank, to answer a question, and that neither is a misrepresentation. Independent’s petition is also correct in suggesting that Couch’s treatise discusses the subject, not in Section 38:68 to which I cited, but in Section 38:71 which states:

“[W]here the question is in the form of a positive statement, followed by a blank space provided for exceptions, leaving such space blank is equivalent to a statement by the applicant that there are no exceptions.” 9 G. Couch, Cyclopedia of Insurance Law and Practice, Section 38:68 at 388 (2d ed. 1962).

At our invitation counsel have submitted additional briefs. Courts in other jurisdictions have indeed drawn a distinction between an applicant’s failure to answer a printed question, which is not considered a misrepresentation, and his failure to list exceptions to a printed declaratory statement, which is. In formal logic the distinction is unquestionable; in the practicalities of preparing, submitting and accepting insurance applications, the difference is less substantial. In every case to which we have been cited and which we have found drawing the distinction to the applicant’s detriment, there remained for the trier of fact a question whether the false statement deduced from the printed declaratory statement was intentionally or fraudulently made. Moriarty v. Metropolitan Ins. Co., 180 Ky. 207, 202 S.W. 630 (1918); Metropolitan Life Ins. Co. v. Trunick’s Adm’r, 246 Ky. 240, 54 S.W.2d 917 (1932); Guarraia v. Metropolitan Life Ins. Co., 90 N.J.L. 682, 101 A. 298 (1917); Richardson v. Alta Life Ins. Co., 153 Pa.Super. 310, 33 A.2d 783 (1943); Becker v. Kansas Cas. & Sur. Co., 105 Kan. 99, 181 P. 549 (1919). That ameliorating question of intent is absent in Florida, where false material statements on the application vitiate the policy regardless of intent. Life Ins. Co. of Virginia v. Shifflet, 201 So.2d 715 (Fla.1967).

We believe that in Florida the rule is and should be that, absent intent to defraud or conceal, an insurance applicant’s failure to fill out, check or otherwise manually indicate in the blank his adoption or acquiescence in a printed declaratory statement in an application is equivalent to applicant’s failure to answer a question in a blank space provided. In either case, still assuming no fraudulent intent on the applicant’s part, the insurer accepts the application at its risk. Phrased in terms of Mr. Justice Ervin’s opinion in National Standard Life Ins. Co. v. Permenter, 204 So.2d 206 (Fla.1967), the insurer’s acceptance of such an application constitutes fault contributing to the alleged misrepresentation or incorrect statement. The policy is not vitiated by such circumstances.

. The prayer of the petition for rehearing is

DENIED.

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

      .- The application described the quoted statement as a warranty but § 627.409(1), F.S.1975, provides in part: “All statements and descriptions in any application for an insurance policy shall be deemed to be representations and not warranties.” A misrepresentation in the application invalidates the policy only in the circumstances described by the statute, infra n. 2.

      . Sec. 627.409(1) also provides: “Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy unless either:
      (b) Material either to the acceptance of the risk . ; or
      (c) The insurer in good faith would . not have issued the policy or contract . . . if the true facts had been made known to the insurer as required ... by the application . .”

      . Ms. Horn testified only that she did not “remember” the agent orally asking questions concerning a mortgage. That testimony was not competent to prove the negative. See Gibbs v. Amer. Nat. Bank of Jacksonville, 155 So.2d 651, 654 (Fla. 1st DCA 1963), cert. disch., 170 So.2d 821 (Fla.1964). The agent himself did not testify.