author: PER CURIAM.

text:
    FLAGLER CENTER BUILDING LOAN CORP., a Florida Corporation, Appellant, v. CHEMICAL REALTY CORPORATION, a New York Corporation, et al., Appellee.
    Nos. 77-1659, 77-1825 and 77-1826.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied Nov. 3, 1978.

      Sibley, Giblin, Levenson & Glaser, Miami Beach, Joseph Pardo, Miami, for appellant.
    Gunster, Yoakley, Criser, Stewart & Hersey and Leigh E. Dunston, Palm Beach, Leland E. Stansell, Jr., Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

These appeals are from a final judgment foreclosing a construction loan mortgage and from two post-judgment orders. The principal issue presented on the appeal from the final judgment is whether the trial court properly found the mortgage in default. On the interlocutory appeals, the question is whether the trial court had jurisdiction to enter the orders after an appeal had been taken from the Final Judgment. Defendant Flagler Center Building Loan Corp. was the borrower and is the appellant here. Plaintiff Chemical Realty Corporation was the lender and is appellee here. Chemical Realty has filed cross-assignments contending that the amount of the debt found due and owing is less than the true amount and that a finding of waiver of the default for failure to meet the completion date for the building is not supported by the record. Other points presented on the appeal and by the cross-assignments must also be decided.

A construction loan and mortgage was entered into between the parties. In December, 1972, Chemical Realty agreed to provide cash for construction up to $6,000,-000.00 to build the Flagler Center Building in downtown Miami. At the time the loan was made, Flagler Center had secured a commitment for long term, permanent financing from Barnett Winston Investment Trust for $6,000,000.00.

By the terms of the construction loan mortgage, the completion date was set for November 30, 1974,[] and default would occur should this date not be met. The commitment for the long term mortgage required a completion date of December 31, 1974. [] The building was not completed by November 30, 1974. Chemical Realty continued to make advancements of funds under the construction loan agreement during December of 1974. The building was not completed by December 31, 1974. On February 25, 1975, Chemical Realty funded a draw against the $6,000,000.00 construction loan fund. This last funding brought the total amount drawn by Flagler Center to $4,909,909.07. There was, therefore, a difference of $1,090,090.93 between the maximum amount agreed to be advanced fpr construction and the amount actually advanced by Chemical Realty.

Chemical Realty filed its complaint for foreclosure on May 6, 1975, and claimed defaults of the mortgage and note as follows: (a) that the principal balance together with interest was due by the terms thereof; (b) that Flagler Center had failed to complete the building on or before the November 30, 1974, completion date; (c) that Flagler Center had failed to keep the commitment of the long term lender in full force and effect as covenanted in the building loan agreement.

Thereafter, in July of 1975, the trial court appointed William L. Pallot as receiver for Flagler Center. After three days of trial, the court found that the bank had waived the default.[] Nevertheless, the trial court found that trie mortgage should be foreclosed and proceeded to “balance the equities” by providing for a remission of interest in the loan from February 25, 1975, to the date of the sale, postponement of the foreclosure sale for ninety days and, finally, made a provision for the further extension of the redemption period if Flagler Center could make definite arrangements for refinancing.[]

Flagler Center filed its notice of appeal from the final judgment of foreclosure on July 27, 1977. On August 2, 1977, the trial court entered an amended final judgment of foreclosure. The following changes were made: (1) the foreclosure sale date was reset to September 22, 1977; (2) an award of $184,926.69 to the receiver and his attorneys as fees and costs was specified; (3) co-conservators for the property were appointed; (4) a special master for the determination of mechanic’s and materialmen’s liens was appointed; and (5) the sum of $225,000 for receiver’s certificates and interest on these certificates was added to the mortgage debt and held to be necessary in order to protect the building. On August 5, 1977, the trial court entered a supplemental order “reflecting additional debt and new sale date” which specifically provided for the adding of the $225,000 for receiver’s certificates to the mortgage debt. On August 22nd, Flagler Center filed a notice of appeal from the amended final judgment. On August 22nd, the defendant also filed its notices of interlocutory appeal from the last mentioned supplemental order. The appeals were consolidated for all appellate purposes.

The initial question presented by Flagler Center is whether a trial court can find a waiver of default and, at the same time, foreclose the mortgage as though there were a default. Chemical Realty responds in two ways. First, it urges that the finding of waiver applied only to the claimed default for failure to complete the building by November 30, 1974. Secondly, it urges that the evidence does not support the trial court’s finding of a waiver of default in the mortgage. A waiver of a default requires action by the mortgagee which misleads the mortgagor so that the mortgagor acts in a way that he would not have acted if he had known that the mortgagee would require performance under the strict terms of the mortgage agreement. See Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751 (1929); New England Mutual Life Insurance Company v. Luxury Home Builders, Inc., 311 So.2d 160 (Fla. 3d DCA 1975); and Harrell v. Lombard, 122 So.2d 625 (Fla. 2d DCA 1960).

The trial judge’s finding of fact that there was an estoppel by waiver of the default in the mortgage is a finding of fact which arrives in this court with a presumption of its correctness. Further, for this court to reverse such a finding of fact, there must be a lack of substantial evidence to support the finding. See Chakford v. Strum, 87 So.2d 419 (Fla.1956); Manchester Insurance & Indemnity Co. v. Novack, 284 So.2d 433 (Fla. 3d DCA 1973). This record reviewed in that light supports the finding of the trial judge in that it shows that in reliance upon the representations of Chemical Realty, the defendant, Flagler Center, critically changed its position by giving up the right and opportunity to complete the building by the deadline. From mid-October to mid-November when Chemical Realty knew that the building was not going to be completed on the due date and the permanent commitment was lost, Chemical Realty paid to the defendant $560,732.54, a sum that would reasonably lead the defendant to believe that the loan was continued in full force and effect.

The position of Chemical Realty that the waiver was void because there was no consideration for it, is not in accord with Florida law. In Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263 (1945), the Supreme Court of Florida found that a waiver without consideration was valid when based upon conduct and when acted upon by the defendant. Cf. New England Mutual Life Insurance Company v. Luxury Home Builders, Inc., 311 So.2d 160 (Fla. 3d DCA 1975).

We hold, therefore, that the court’s finding of waiver of default in the mortgage is supported by the evidence and must be affirmed. With regard to the position of Chemical Realty that the waiver concerned only a single default in the completion date, we find nothing in the record to support this position. The waiver concerned the clear right to foreclose at that time, and the evidence supports Flagler Center’s position that after having waived default, Chemical Realty sought to foreclose simply because it was unable to secure a modification of the terms of the loan.

Although not made a point on appeal, Flagler Center, as appellant, has urged that the trial judge should have required the mortgagee, Chemical Realty, to pay to the defendant an amount of money equaling the difference between the actual amount advanced and the maximum amount the lender agreed to advance for construction purposes. We find no basis in this record for such a contention inasmuch as the mortgage does not require the payment of the full $6,000,000.00 unless and except it is used in the construction of the building and the formal requirements of the funding of the draw for construction purposes are complied with. The fact that Flagler Center was able to construct the building for an amount of money less than it was estimated by the parties would be required, does not obligate the lender on a construction mortgage to advance monies not required for construction purposes.[]

Flagler Center's second point on appeal urges that it was error for the trial judge to add the commissioner’s fees and costs and the commissioner’s attorney’s fees and costs to the amount required from the defendant to redeem the property, because the record contains a proper stipulation that the plaintiff would pay all costs of a commissioner. Upon the subject of the commissioner’s fees and costs, the trial judge made extensive provisions[] but nowhere in the judgment does he refer to a stipulation concerning commissioner’s costs. The question of whether the plaintiff had stipulated to pay the costs of the commissioner was presented to the trial judge by defendant’s Motion to Modify Order Appointing Court Commissioner and to Require Plaintiff to Post Bond for Payment of Cost, Fees, and Expenses of Court Commissioner and Court Commissioner’s Attorneys. After several hearings, the result of the motion was an Order Reserving Judgment on Motion to Clarify. No further ruling appears thereon until the final judgment, above quoted in part, wherein the court held that the commissioner’s costs and fees were chargeable against the property and added to the amount defendant must pay to redeem the property. We must conclude, therefore, that the court found, as a matter of fact, that there was no binding stipulation by the plaintiff to pay the fees and costs of the commissioner. We must then examine the record to determine whether the court’s finding is supported in the record. Cf. Darling v. Rose, 301 So.2d 19 (Fla. 2d DCA 1974).

The hearing on the plaintiff’s application for a receiver was long, and included the testimony of experts, numerous comments of counsel and argument. The defendant relies on the comments of plaintiff’s counsel as an offer or stipulation by the plaintiff to pay the costs of a receivership should the plaintiff get the court to agree to appoint a receiver.[]

The plaintiff did prevail and the costs have been added to the amount the defendant must pay to acquire the building. Perhaps we would have a closer question if the defendant had prevailed and the mortgage was not foreclosed. Here the language used by the attorneys in argument is not definite. If this was a proposal to the court or to the defendant in order to get a receiver, then there is no evidence that it was accepted by the court or the defendant. We think that the language of Fla.R.Civ.P. 1.030(d)[] contemplates something more definite than that which appears in this record as argument of counsel. For although under this rule, “ . . . parol agreements may be made before the court if promptly made a part of the record or incorporated in the stenographic notes of the proceedings . . . ,” the record in this cause does not show an “agreement” sufficient to meet the requirements of a stipulation.

The Final Judgment provides that “ . . . the costs of the commissioner-ship incurred, including the Commissioner’s fees and costs and the Commissioner’s attorneys’ fees and costs and the Certificates of Indebtedness . . . shall be treated as liens against the property . . . ” The judgment also provides that the “ . . . Commissioner’s fees and costs and the Commissioner’s attorneys’ fees and costs shall be added to the total amount required from the Defendant, FLAGLER CENTER BUILDING LOAN CORP., to redeem the property.” The certificates of indebtedness covering the cost of the receivership, in addition to the receiver’s fees and his attorneys’ fees and costs, amounting in the original judgment to $1,275,260.58, and in the Amended Final Judgment to $1,507,157.44, were added to the mortgage debt required to be paid by the defendant in order to redeem. In addition, the Final Judgment and the Amended Final Judgment conditioned the right to redeem on the payment or the posting of security for the payment of all outstanding mechanics’ liens and their attorneys’ fees.

Receivers costs, in the absence of counter-prevailing equities, see Perry v. Beckerman, 97 So.2d 860 (Fla.1957), are proper as a charge against the mortgaged property and are a part of the expenses of foreclosure which are included in a final judgment and must be paid in order to redeem the mortgaged property. See the general rule in Deauville Corporation v. Blount, 160 Fla. 286, 34 So.2d 537 (1948), with regard to the large discretion vested in the trial court in such matters.

The third point presented by Flagler Center urges that the final judgment improperly added amounts to the mortgage debt in adjudging the amount required for the defendant to redeem the property. The amounts objected to are:

1. The Final Judgment provides that “ . . . the costs of the commissioner-ship incurred, including the Commissioner’s fees and costs and the Commissioner’s attorneys’ fees and the Certificates of Indebtedness . . . shall be treated as liens against the property . . . ” and that “ . . . the Commissioner’s fees and costs and the Commissioner’s attorneys’ fees and costs shall be added to the total amount required from the Defendant, FLA-GLER CENTER BUILDING LOAN CORP., to redeem the property.”

2. The certificates of indebtedness covering the cost of the receivership, in addition to the receiver’s fees and his attorneys’ fees and costs amounting in the original judgment to $1,275,260.58, and in the Amended Final Judgment to $1,507,157.44 were added to the mortgage debt required to be paid by the defendant in order to redeem.

3. In the Final Judgment and the Amended Final Judgment, the court conditioned the right to redeem on the payment or the posting of security for the payment of all outstanding mechanics’ liens and their attorneys’ fees.

We have already dealt with the fact that it is ordinarily proper to include receivers fees and costs in the amount required to redeem mortgaged property. Nothing argued under this point shows error in such a holding.

That portion of the Final Judgment which conditioned the right to redeem upon the payment of mechanics liens was erroneous. See Blue Heron Land Co. v. Brown, 98 Fla. 1238, 125 So. 369 (1930).[] The plaintiff argues that, if error, the ruling was harmless because a special master appointed to settle the lien claims found no valid liens outstanding; this, however, does not appear from the record. Therefore, we hold the provision of the Final Judgment which provided that lien claims must be paid by the defendant in order to redeem should be stricken from the Final Judgment.

The last point presented pertains to the post-judgment orders. The defendant argues that the trial court was without jurisdiction to adjudicate conservators fees and attorneys fees after final judgment. We hold that the trial court was not divested of jurisdiction by the notice of appeal to adjudicate those matters necessary for the conservation of the property or to amend the Final Judgment on matters not going to the validity and correctness of the Final Judgment on appeal. See Brown v. Marion Mortgage Co., 107 Fla. 727, 145 So. 413 (1932); and Yarborough v. Kilbee, 307 So.2d 223 (Fla. 4th DCA 1975).

The points presented by Chemical Realty in its cross-assignments of error are mainly defensive and have been considered above. The assignments otherwise do not present reversible error.

Having found the trial court in error upon its failure to carry into effect the waiver of default which it found upon the evidence, we conclude that the judgment must be reversed. We have considered the issues presented on the cross-appeal and the additional points presented by appellant for the expedition of the settlement of the controversy between the parties. Thereupon, the judgment is reversed and the cause remanded for dismissal of the action in accordance with the views herein expressed.

Reversed and remanded with directions.

      . “11. Events of Default. If one or more of the following events (an Event of Default) shall occur and be continuing
      * * :k * * *
      “(d) The Improvement is not completed in accordance with the Plans and Specifications in the judgment of the Supervising Engineer on or before the Completion Date (as defined in Exhibit B);”
      Exhibit B states:
      “As used in this Agreement, the following terms shall have the following meanings:
      “1. Completion Date — November 30, 1974.”

      . “It is understood that the buildings must be fully completed according to plans and specifications to be submitted to and approved by the Trust in writing, and disbursement made prior to December 31, 1974, otherwise, this commitment may be cancelled at the option of the trust without notice to the applicant and without liability of any kind upon the Trust.”

      . ******
      “Pursuant to the disputed and unresolved understanding between them at the October 1974 meeting and subsequent communications and conduct, and in the face of the knowledge that BWIT would not agree to extend the date of its permanent mortgage commitment, the Defendant, FLAGLER CENTER BUILDING LOAN CORP., continued to work toward completion of the building without delay, in good faith, and the Plaintiff continued to fund the job beyond the deadline set in the Building Loan Agreement in good faith, and acknowledged that ‘it was in the best interest of the parties’ to complete the building. Neither the Plaintiff nor the Defendant, FLAGLER CENTER BUILDING LOAN CORP., had any knowledge or forewarning of the inability of BWIT to fund the permanent mortgage commitment if called upon to do so, or of the impending decline in market conditions, making it virtually impossible for Defendant, FLAGLER CENTER BUILDING LOAN CORP., to obtain permanent mortgage financing elsewhere.
      “Without regard to the conduct of the principals of the Defendant corporation, which might not be considered laudatory or commendable; and although Plaintiffs conduct in funding the job beyond November 30, 1974, was done with noble, commendable motives, it nevertheless constituted a waiver.
      “Plaintiff is entitled to be repaid but its refusal to fund the job until completion and the subsequent filing of this action prior to completion of the building was premature and unwarranted in light of the waiver, and to that extent the equities are with the Defendant.”
      ******

      . “Since no evil motives were intended by either of the principal parties litigant, justice and fairness and a ‘balancing of the equities’ dictate that the Plaintiff’s complaint and the Defendant, FLAGLER CENTER BUILDING LOAN CORP.’s Affirmative Defenses and Counterclaim be adjudicated as follows:
      “It is ORDERED, ADJUDGED AND DECREED:
      “1. That the Plaintiff shall not be permitted to collect any interest on its loan past February 25, 1975 — the date of the last installment paid by the Plaintiff on the funding of the construction job under the Building Loan Agreement. The last installment so paid did not exhaust the funds which Chemical was obligated to advance under said Building Loan Agreement.
      “2. That the Plaintiff shall not be permitted to have the property sold at judicial foreclosure sale prior to ninety (90) days (July 29, 1977) from the date of entry of this Final Judgment of Foreclosure.
      “3. That if the Defendant, FLAGLER CENTER BUILDING LOAN CORP., has made definite arrangements for refinancing but cannot redeem the property within ninety (90) days (July 29, 1977), the Court will consider an application for an extension of the redemption period for a maximum of thirty (30) days (August 28, 1977), provided such application for extension be made no later than twenty (20) days (July 9, 1977) prior to the termination of the above described ninety (90) day period (July 29, 1977).”

      . The mortgage herein states:
      “NOW, THEREFORE, in consideration of the sum of Six million and °“/ioo Dollars ($6,000,000.00) and other valuable consideration paid by the Lender to the Borrower, or as much thereof as may from time to time be advanced by the Lender to the Borrower, the Borrower, to better secure the payment of the principal sum set out in the Note, and interest thereon and premium, if any, has executed and delivered this Mortgage . . ”
      [emphasis added]

      . “4. That the costs of the commissioner-ship incurred, including the Commissioner’s fees and costs and the Commissioner’s attorneys’ fees and costs and the Certificates of Indebtedness issued to conserve and/or improve the property, shall be treated as liens against the property prior in dignity to the Plaintiff’s mortgage and all other lien claims. That is to say, the commissionership costs, including Commissioner’s fees and costs and the Commissioner’s attorneys’ fees and costs and the Certificates of Indebtedness shall be paid first by whomsoever recovers or acquires the property, either through redemption or as a result of the successful bid at judicial foreclosure sale.
      "5. That the amount of any remaining fees and costs due the Commissioner and the Commissioner’s attorneys’ fees and costs shall be set by another judge of this Court pursuant to a stipulation of the parties and a previous Order of this Court based thereon. Said fees and costs should be determined as soon as possible and no later than July 1, 1977.
      “6. That the Commissioner’s fees and costs and the Commissioner’s attorneys’ fees and costs shall be added to the total amount required from the Defendant, FLAGLER CENTER BUILDING LOAN CORP., to redeem the property.
      “7. That the Plaintiff has requested the Commissioner to remain in office until June 30, 1977, and has agreed to bear the expense of the Commissioner’s fees and costs and the Commissioner’s attorneys’ fees and costs from the date of entry of this Final Judgment Of Foreclosure until June 30, 1977. Therefore the commissionership shall be dissolved on July 1, 1977, and thereafter the building manager, Roger Stake, shall operate and manage the building under Court supervision pending the sale or redemption of the property and shall furnish an appropriate bond to be set by the Court.”

      .“MR. SIBLEY: It is going to cost them money. Let’s save the bank money.
      “THE COURT: What I am concerned with is the cost of the receivership, if he can be appointed and agreed upon, because they don’t work cheap.
      “MR. DUNSTON: Right, Judge. It’s our costs; we’re willing to bear the burden of that on this personally. It’s all our money.

        “THE COURT: What is going to happen if they prevail? Who is going to pay those costs?
      “MR. PARDO: There is going to be a cost of the foreclosure proceedings or what, I don’t know. Where will that fall? Go ahead. Excuse me.
      “MR. DUNSTON: You are suggesting that if they prevail in the foreclosure proceeding—
      “THE COURT: Sure. Suppose that they prevail?
      “MR. PARDO: Then a substantial bond should be posted and the attorney for the receiver — the receiver appointed.
      “MR. DUNSTON: There is no question that a receiver is an expensive proposition.”
      ******
      “MR. DUNSTON: If I might go on, however, Mr. Silverman has authorized me to say on behalf of the Plaintiff, because it is our money and we do believe that we will prevail in this matter, that we will bear the cost of the receivership if we don’t prevail, and we will stipulate as to that, and in that light we would ask the Court then to please consider appointing a receiver that can move forward with the project as fast as possible, get the completed C.O.’d and rented up.”
      * * * * * *
      “I want the Court to keep in mind that Chemical Realty has upon itself the burden of saying, ‘We believe that we will prevail and that the building will become ours; in that event we will bear the expense of the receivership, but we do not want Mr. Revitz to be the receiver.’
      “THE COURT: All right, sir.”

      . “(d) Stipulations. No private agreement or consent between parties or their attorneys shall be of any force unless the evidence thereof is in writing, subscribed by the party or his attorney against whom it is alleged; provided that parol agreements may be made before the court if promptly made a part of the record or incorporated in the stenographic notes of the proceedings and agreements made at depositions which are incorporated in the transcript thereof need not be signed ^ when signing thereof is waived.”

      . “A defendant in a mortgage foreclosure proceeding should not be required to pay any amount in excess of what complainant is entitled to recover, together with all costs of such proceeding, before being permitted to save his property from foreclosure sale.”
      # * * * *

      “It is ordered that the final decree, in so far as it ordered defendants to pay taxes, not advanced or paid out by complainants, before being permitted to redeem ... be and it is hereby reversed.”


source: Caselaw Access Project

license: Public Domain

text:
    William W. COUNCE, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-2022, 77-2023.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the judgment appealed is affirmed.

The only point which merits discussion is the propriety of the appellant’s sentence to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed.

Appellant need not be present for this purpose.

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


text:
    Marvin A. McKINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 77-726.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.
    Jack 0. Johnson, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, and Daphne W. Boswell, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the judgment appealed is AFFIRMED.

The only point which merits discussion is the propriety of the appellant’s sentence to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed.

Appellant need not be present for this purpose.

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


text:
    Sam DEESE and Dorothy Deese, Appellants, v. Dean A. SARAFIANOS, Appellee.
    No. 77-1799.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Rehearing Denied Sept. 12, 1978.
    John D. Kurtz of Hustad & Kurtz, West Palm Beach, for appellants.
    Edward L. Kind of Litman, Muchnick & Wasserman, Hollywood, for appellee.
   PER CURIAM.

Affirmed.

DOWNEY, C. J., and CROSS and MOORE, JJ., concur.


text:
    John HENSLEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-1839.
    District Court of Appeal of Florida, Second District.
    July 19, 1978.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court. However, we agree with appellant that the present sentence does not specify the amount of credit for time served in jail as Section 921.161(1), Florida Statutes (1975) requires. Knight v. State, 349 So.2d 232 (Fla.2d DCA 1977). Moreover it was error for the trial court to assess court costs against appellant after he had been adjudged insolvent. Cox v. State, 334 So.2d 568 (Fla.1976). Therefore, we reverse the order assessing costs against appellant and release appellant from any obligation to pay these costs.

We remand the case to the trial court for correction of sentence. Appellant does not have to be present for this proceeding.

SCHEB, A. C. J., and OTT and DAN-AHY, JJ., concur.


author: PER CURIAM. DAUKSCH, Judge.

text:
    William Francis DAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-2135.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1978.
    Rehearing Denied Sept. 20, 1978.
    James K. Freeland, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond and Kenneth G. Spil-lias, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS, DAUKSCH and LETTS, JJ., concur.

ON PETITION FOR REHEARING

DAUKSCH, Judge.

Appellant has filed a petition for rehearing which does not comply with Florida Appellate Rules, 1962 Revision, Rule 3.14. It also does not comply with the new rule Florida Rules of Appellate Procedure 9.330 (1977). Both of these rules require the movant to set out with particularity and without argument what it is alleged this court overlooked or misapprehended in its opinion or decision. This the appellant has failed to do. See concurring opinion on Petition for Rehearing in Petition of Post-Newsweek Stations, Florida, Inc., 359 So.2d 1195 (Fla.1978). See Williams v. State, 113 So.2d 833 (Fla.1959); Texas Co. v. Davidson, 76 Fla. 475, 80 So. 558 (1919); and State v. Green, 105 So.2d 817 (Fla. 1st DCA 1958).

The petition for rehearing is stricken, sua sponte.

Petition for rehearing is STRICKEN.

CROSS and LETTS, JJ., concur.


text:
    Stephen SHORES, Petitioner, v. STATE of Florida, Respondent.
    No. KK-32.
    District Court of Appeal of Florida, First District.
    Sept. 6, 1978.
    Rehearing Denied Oct. 24, 1978.
    Terry N. Silverman, Gainesville, for petitioner.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petition for writ of certiorari is DENIED. See Martin v. First Apostolic Church, 321 So.2d 471 (Fla. 4th DCA 1975).

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


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

text:
    LEON COUNTY CLASSROOM TEACHERS ASSOCIATION, FTP-NEA, and John Ferrigno, Appellants, v. The SCHOOL BOARD OF LEON COUNTY, Florida, and Ned Lovell, Superintendent of Schools, Appellees.
    Nos. EE-436, FF-218.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1978.
    Rehearing Denied Nov. 7, 1978.

      Richard H. Frank, Mark F. Kelly and John J. Chamblee, Jr., Tampa, for appellants.
    David A. Barrett of Barrett, Boyd & Holder, James M. Blue, Tallahassee, for ap-pellees.
   MILLS, Judge.

The Leon County Classroom Teachers Association (LCTA) and the Leon County School Board (Board) entered into a collective bargaining agreement for the 1975-76 school year which contains a grievance procedure beginning:

“6.01 Any claim by an employee that there is a dispute, difference, disagreement or complaint related to contractual terms and conditions of employment including questions of whether or not any disciplinary action taken against or dismissal of an employee was for just cause shall be resolved through the procedure set forth herein.”

The third and final step in the grievance procedure is the submission of the grievance to arbitration.

On 1 March 1975, appellant Ferrigno entered into a contract with the Board. The contract provided that Ferrigno would have probationary status and “. . .no legal cause shall be required of the School Board in the event that the teacher is not reemployed by the School Board after June 16, 1976”. Ferrigno’s contract was not renewed for the 1976-77 school year.

Ferrigno filed a grievance with the Board on 14 May 1976, stating as his grievance that he “. . . was not recommended for a teaching position at the Alternative Learning Center for the 1976-77 school year.” The grievance stated that it related to various sections of the collective bargaining agreement. After the first two steps of the grievance procedure failed to resolve the dispute, a demand for arbitration was submitted to the Board.

On 3 January 1977, the Board filed a complaint for a temporary restraining order and an injunction prohibiting the submission of the grievance to arbitration. The Board also requested a declaratory judgment that the Board was without authority to “. . . delegate to an arbitrator . the right to order the Board to renew a nontenured, probationary instructor’s contract without an affirmative recommendation of the Superintendent and . that the Board does not have authority to order the Superintendent to make an affirmative recommendation. . . The appellants filed a motion to dismiss the complaint for lack of subject matter jurisdiction and failure to state a cause of action. A nonevidentiary hearing was held and the court issued an order taking appellants’ motion to dismiss under advisement and temporarily restraining appellants from pursuing arbitration pending the final order of the court. The appellants filed a notice of interlocutory appeal from the temporary restraining order. While the interlocutory appeal was pending in this court, and without further pleadings or hearings, the trial court rendered its final order. Appellants filed a notice of appeal from the final order. The appeals were consolidated by order of this court.

Firstly, we note that the circuit court had no jurisdiction to enter its final order granting permanent injunctive relief and declaring the rights of the parties while the interlocutory appeal from the temporary restraining order was pending in this Court. De La Portilla v. De La Portilla, 304 So.2d 116 (Fla.1974).

Secondly, injunctive relief must be predicated upon a finding that the party seeking such relief has no adequate remedy at law and will suffer irreparable injury if such relief is not granted. Times Publishing Company v. Williams, 222 So.2d 470 (Fla. 2d DCA 1969). The Board did not allege irreparable injury or make a showing that irreparable injury would occur should the injunctive relief not be granted. Further, the Board invoked the jurisdiction of the court pursuant to Chapter 682, the Florida Arbitration Code, and Chapter 86, the Declaratory Judgment Act. Section 682.-03(4), Florida Statutes, states the circumstances under which a court may stay arbitration proceedings:

“(4) On application the court may stay an arbitration proceeding commenced or about to be commenced if it shall find that no agreement or provision for arbitration subject to this law exists between the . . . [parties]. The court shall summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, shall grant or deny the application.”

The collective bargaining agreement entered into between the Board and the LCTA was attached to the Board’s complaint. The contract provides that “any claim by an employee that there is a dispute, ... or complaint related to contractual terms and conditions of employment . . . ” shall be resolved through the grievance procedure set forth in the contract, which has as its final step binding arbitration.

The grievance filed by Ferrigno, also attached to the complaint, states that the grievance occurred on 27 and 28 April 1976. The Board’s complaint alleged that on or about 28 April, Ferrigno was advised by his principal that he would not be recommended for a teaching position for the 1976 — 77 school year. The form grievance complaint states the grievance as:

“John Ferrigno was not recommended for a teaching position at the Alternative Learning Center for the 1976 — 77 school year.”

The grievance states that it is related to, among others, Articles 10.01, 10.02, 13.04, 13.08 of the negotiated contract. Articles 13.04 and 13.08 concern the procedure to be used by the administration in evaluating employees. Article 10.01 states:

“10.01 No teacher shall be disciplined, including reprimand, suspension, with or without pay, demotion, or discharge without just cause.”

Article 10.02 states:

“10.02 If disciplinary action is to be taken against an employee based on a complaint by a parent, student, or other individual the employee shall be given a hearing before the building administrator. If a decision is rendered against the employee, the employee shall have an opportunity to respond in writing to any record that appears in the personnel file.”

The relief sought through the grievance proceeding is stated as:

“John Ferrigno be recommended for a teaching position at the Alternative Learning Center for the 1976-77 school year.
“The removal of the letter not recommending his return for the 1976-77 school year and other the other (sic) information related directly to the letter.”

In its temporary restraining order, the court stated that the arbitrator had “. . . doubtful jurisdiction to arbitrate the issue of the non-renewal of an annual contract teacher . . . ”, and therefore, Ferrigno and the LCTA were “. temporarily restrained from pursuing the arbitration of the issues in this cause.”

The grievance filed by Ferrigno does not seek to arbitrate the issue of the Board’s non-renewal of his contract. The grievance does indicate that it relates to evaluation procedures and the right of an employee to respond to complaints made against him. Clearly, any dispute regarding those issues would come under the broad language of the arbitration agreement.

This case is quite similar to one decided by the Supreme Court of Massachusetts in School Committee of Danvers v. Tyman, 360 N.E.2d 877 (Mass.1977). In that case a nontenured teacher, who was not rehired, filed a grievance which alleged a failure to follow appropriate evaluation procedures, inadequate classroom observations and evaluations, and discrimination. Arbitration was requested in accordance with the collective bargaining agreement. The School Committee filed a complaint seeking an order staying arbitration. The Committee’s argument was that arbitration of the grievance was barred because under state law the committee had an absolute power to pass on the question of whether a nontenured teacher’s contract should be renewed. The Supreme Court vacated the lower court’s order staying arbitration, stating:

“In this case, the school committee agreed to submit to arbitration on a wide range of subjects. Unless there is positive assurance that an arbitration clause is not susceptible to an interpretation that covers the asserted dispute, or unless no lawful relief conceivably can be awarded by the arbitrator, an order to arbitrate should not be denied. In this case, no occasion for a stay of the arbitration arises merely from the possibility of an arbitrator’s award which might purport to intrude into the school committee’s inviolate authority.
“Any threat to the school committee’s authority has not matured yet because it is far from clear that the arbitrator’s award will encroach on the school committee’s exclusive domain.” 360 N.E.2d at 881 (cites omitted).

The injunctive orders are reversed and the cause remanded with directions to dismiss the complaint.

ERVIN, J., concurs.

BOYER, Acting C. J., concurs in part, dissents in part.

BOYER, Acting Chief Judge,

concurring in part and dissenting in part.

I concur that the circuit court had no jurisdiction to enter its final order while the interlocutory appeal was pending in this court. (De La Portilla v. De La Portilla, 304 So.2d 116 (Fla.1974)) I therefore concur in reversal, but on that ground only. . In my view, had the learned trial judge had jurisdiction at the time the final judgment here appealed was entered he would have been imminently correct on the merits.

As recited in the majority opinion, the relief sought through the grievance procedure was that:

“John Ferrigno be recommended for a teaching position at the Alternative Learning Center for the 1976-77 school year.
“The removal of the letter not recommending his return for the 1976-77 school year and other the other (sic) information related directly to the letter.”

That relief was not and is not available via arbitration. Accordingly, using the language of School Committee of Danvers v. Tyman, 360 N.E.2d 877 (Mass.1977), relied upon by the majority, “no lawful relief conceivably can be awarded by the arbitrator.”

Appellant Ferrigno was a probationary employee. His contract specifically provided, as acknowledged by the majority, that “no legal cause shall be required of the School Board in the event that the teacher is not reemployed by the School Board after June 16,1976.” The entire thrust of appellants’ position is that in the absence of a showing of just cause or good cause it was incumbent upon the School Board to renew Ferrigno’s contract. That contention is in direct conflict with the contract itself.

Good cause need not be shown for failure to renew a contract between a School Board and a probationary non-tenured employee, unless specifically so provided by a contract pursuant to a law allowing such a provision. If the contrary were true then probationary status and tenure would be rendered a nullity, because there would be no difference.


author: MELVIN, Judge.

text:
    STATE of Florida, Thru the AGENCY OF STEPHEN BOYLES, State Attorney for the Seventh Judicial Circuit, in and for Volusia County, Florida, Appellant, v. Gary SIMER, Appellee.
    No. HH-460.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1978.
    Rehearing Denied Nov. 8, 1978.

      Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., and Michael H. Lambert, Asst. State’s Atty., for appellant.
    Paul A. Bernardini of Dunn, Bernardini, Smith & Burnett, Daytona Beach, for ap-pellee.
   MELVIN, Judge.

This appeal is from a judgment entered in favor of appellee Simer (plaintiff below) in a case involving personal injuries to him. The essential allegations of Simer’s second amended complaint were that Eaton, a special investigator and an agent of the State Attorney of the Seventh Judicial Circuit, an agency of the State of Florida, had, through his negligence in arresting and detaining one Maloney, caused injury to Simer. Specifically, the complaint alleged that Eaton’s negligence had created a certain peril to himself necessitating Simer’s rescue attempt, which, coupled with Eaton’s further negligence, resulted in Simer’s injuries.

The essential facts adduced at the jury trial were uncontradicted. Eaton, a special investigator for the state attorney’s office, was in civilian clothing and driving his unmarked, state vehicle when he encountered Maloney, who was driving erratically and at an excessive speed. Maloney stopped across from Eaton’s stationary vehicle and began to curse Eaton for his driving ability. Eaton left his car and approached Maloney’s to investigate. Upon seeing Maloney’s hand on a tire tool located on the seat of the car, Eaton informed Maloney that he was a law officer and that he should remove his hand from the tire tool. Replying that he would beat Eaton without relying upon a weapon, Maloney sprang from his car and struck Eaton in the face with his fist. Eaton returned the blow and the two scuffled for five to ten minutes, during which time Eaton succeeded in applying a “headlock” to Maloney. Eaton testified that Maloney smelled of alcohol and that he increased his efforts to escape when he (Eaton) denied his requests to be physically released.

During the struggle, at least two vehicles passed and ignored Eaton’s request for assistance. Finally, Simer stopped and Eaton told him that he was a police officer and needed help. Eaton asked Simer if he knew how to operate a radio and upon Simer’s affirmative answer, asked that Simer use Eaton’s car radio to call for help. Simer did so. Eaton testified that he overheard Simer’s call and seconds later heard the siren of a police car that would arrive in approximately a minute.

Eaton testified that Maloney, on hearing the siren, conceded his arrest and, again, asked to be released, stating that he was “whipped”, and would stand by and await the arrival of the police. Eaton stated that in his 15 years of law enforcement experience he had often seen resisting prisoners calmed when they realized the futility of their position.

Tired by the five to 10 minute struggle, Eaton relaxed his grip on Maloney’s head. As he did so, Maloney bolted from his arms, dove through the open door of his still running car and placed it in gear. In the meantime, Simer, who had made the call from Eaton’s car, decided, without any further request from Eaton, that he could further preclude Maloney’s escape by disabling his car. Having decided to open the hood of Maloney’s car and disable it by pulling the ignition wires of the running engine, Simer, unfortunately, arrived at the front of the vehicle just in time to be run over by the escaping Maloney. Simer suffered leg and back injuries and the aggravation of a pre-existing back injury.

On these facts, the jury returned a verdict for Simer finding his total damages to be $30,000.00, and assessing his negligence at 15 percent, the State of Florida’s negligence at 25 percent and State Farm Mutual Automobile Insurance Company, as Simer’s uninsured motorist carrier, liable for 60 percent of the damages. The State brings this appeal challenging the sufficiency of the evidence supporting the finding of negligence against it.

Although we commend Simer for his initial actions in stopping to render aid to Eaton and in radioing for assistance as he was requested to, we agree with the State that Simer’s injuries were not occasioned by any negligence on the part of the State and must, therefore, reverse.

In view of our finding that there was no negligence on the part of the State in the instant case, we find it unnecessary to discuss the State’s partial waiver of its sovereign immunity for liability for torts.

It is easier to be critical than it is to be correct.

.“Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.” Fla. Standard Jury Instructions 4.1.

Simer invokes the rescue doctrine which provides generally that one who is injured in reasonably undertaking a necessary rescue may recover for his personal injuries from the person whose negligence created the peril necessitating the rescue. 57 Am.Jur.2d Negligence § 227, citing Perotta v. Tri-State Insurance Company, 317 So.2d 104 (Fla. 3d DCA 1975), cert. den. 330 So.2d 20 (Fla.1976).

In Perotta, Perotta was the social guest of the Sawyers, whom he sued for personal injuries he sustained while attempting the rescue of a third party’s child. The two and one-half year old child, Terri, had, during a lapse of her parents’ supervision, fallen into the Sawyers’ patio pool. Observing the danger to the child, Perotta ran to her rescue and jumped into the pool to save her. Although he was able to remove Terri unharmed from the pool, Perotta, unfortunately, had jumped into the shallow end, causing injuries to himself.

The issue on appeal was whether the trial court properly granted the Sawyers’ and their insurance carrier’s motion for summary judgment. Affirming, the Second District stated:

“. . . There may well be an issue of fact as to whether Terri was a social guest or uninvited licensee. Assuming she was a social guest, the Sawyers owed a duty of reasonable care under the circumstances and a duty to maintain the premises in a reasonably safe condition. In any event, irrespective of the duty herein involved, in order for the Sawyers to be liable for the injury of Perotta, it must be shown that the Sawyers’ negligence was the proximate cause of the injury. Perotta does not complain of any visible or latent defect in the pool or pool area, but contends that the Sawyers should have barricaded the pool. We do not agree. Here the parents’ failure to control and supervise their two and one-half year old child when they placed the child in the pool area, which they not only observed on the date of the incident but knew was there before they brought the child on the premises, constituted an active and efficient intervening cause.” (at page 105)

In the instant case, Special Investigator Eaton, a law enforcement officer with over 15 years service, testified that it was his view that physically restrained individuals would peacefully stand by when they realized their position was hopeless. Eaton testified that he could hear the siren of the police car coming to his assistance and thought from his experience that Maloney would stand by. He testified, further, that he wasn’t aware that Maloney’s car was running and that he thought Simer was in a safe position near his truck and not near the hood of Maloney’s car.

Foreseeability and proximate cause are essential principles of negligence actions that must be alleged and proved. As stated by Judge Rawls, writing for this Court in Bryant v. Jax Liquors, 352 So.2d 542 (1977), “ ‘Probable cause’ is not ‘possible cause’. ‘Foreseeable’ is not ‘what might possibly occur’.”

While Special Investigator Eaton might be charged with notice that his well-intended civilian assistant would possibly leave his position of safety and engage in the unrequested act of attempting to disable Maloney’s running car by standing in front of it and might thereby be run over by Maloney, who unexpectedly bolted from custody and made good his escape, we hold under the specific facts of this case that the series of events leading to Simer’s unfortunate injuries were not “foreseeable” and, therefore, that the evidence was insufficient to support the jury’s finding of negligence against the State.

Accordingly, that portion of the final judgment entered against the State of Florida is REVERSED.

BOOTH, J., concurs.

SMITH, Acting C. J., dissents without opinion.


author: PER CURIAM. HAVERFIELD, Chief Judge,

text:
    The CITY OF MIAMI BEACH, Appellant, v. Amelia King BUCKLEY et al., Appellees.
    No. 76-1911.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Nov. 3, 1978.

      Joseph A. Wanick, City Atty., Reichen-thal & Weinstein, Miami, and Lee H. Schil-linger, Coral Gables, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and George B. Foss, Jr., Carr & Emory, W. Frank Esslinger, Miami, for ap-pellees.
    Before HAYERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

The petitioner City of Miami Beach appeals a final judgment entered upon a jury verdict in favor of the defendant landowners herein in a condemnation action. The city urges that the trial court erred in its instructions to the jury. The record affirmatively shows that the city did not object to the jury instructions in the trial court, and, accordingly, we cannot consider the city’s assignments of errors related to the giving of such instructions. Starkey v. Chew, 241 So.2d 870 (Fla.3rd DCA 1970); City of Miami Beach v. Belle Isle Apartment Corp., 177 So.2d 884 (Fla.3d DCA 1965). The city also urges as error certain trial court rulings concerning the introduction of evidence upon the issue of the probability of rezoning the condemned parcels of land as a factor in determining the valuation of the said land. We find no error in these rulings. Board of Commissioners of State Institutions v. Tallahassee Bank & Trust Co., 100 So.2d 67 (Fla.1st DCA 1958), cert. den. 116 So.2d 762 (Fla. 1959); Board of Commissioners of State Institutions v. Tallahassee Bank & Trust Co., 108 So.2d 74 (Fla.1st DCA 1958); Swift & Co. v. Housing Authority of Plant City, 106 So.2d 616 (Fla.2d DCA 1958). The city finally urges that the trial court erred in allowing the defendants to amend their pleadings to allege a probability of rezoning as a factor to be considered in the valuation of the condemned land. We find no error as the ruling was well within the trial court’s discretion. Dixie Farms, Inc. v. Timmons, 323 So.2d 637 (Fla.3d DCA 1975); Trent v. Channel 10 WPLG-TV, Post-Newsweek Stations, Fla., Inc., 309 So.2d 631 (Fla.3d DCA 1975); Strickland v. St. Petersburg Auto Auction, Inc., 243 So.2d 603 (Fla.4th DCA 1971); Fla.R.Civ.P. 1.190(e).

HAVERFIELD, Chief Judge,

dissenting.

I find merit in the City’s contention that the trial court erred in permitting the landowners to introduce evidence as to the probability of the condemned parcels of land being rezoned from single family residential to high density multiple family so that the jury was allowed to consider this factor in determining the valuation of these parcels.

When property is taken by eminent domain, the compensation to be awarded the owner is its fair market value at the time of the taking. See Yoder v. Sarasota County, 81 So.2d 219 (Fla.1955); State Road Department v. Chicone, 158 So.2d 753 (Fla.1963) and Section 73.071, Florida Statutes (1977). This value, as a measure of compensation, should be based on the highest and best use to which the property is being or might reasonably be put. State Road Department v. Chicone, supra. If, therefore, there is a reasonable probability that the existing zoning may be changed or an exception may be made thereto, the effect of the probability of the change upon the value of the property may be taken into consideration by the jury. Board of Commissioners of State Institutions v. Tallahassee Bank and Trust Company, 108 So.2d 74 (Fla.1st DCA 1958), cert. quashed, 116 So.2d 762 (Fla.1959). Nevertheless, value must not be based Upon purely speculative uses and it is improper to speculate on what property would be worth with speculative improvements at some unannounced future date. Yoder v. Sarasota County, 81 So.2d 219 (Fla.1955), supra.

To warrant admission of testimony as to the value of land under condemnation for a purpose prohibited by the then existing zoning ordinance, the burden is upon the landowner to first demonstrate, inter alia, that there is a reasonable probability that the property will be rezoned in the immediate or near future. See Board of Commissioners of State Institutions v. Tallahassee Bank and Trust Company, 100 So.2d 67 (Fla.1st DCA 1958), cert. denied, 101 So.2d 817 (Fla.1958). Further, whether there is sufficient evidence of the reasonable probability of rezoning to warrant submitting the issue to the jury is in the first instance a question for the court. See Annot., 9 A.L. R.3d 291, 324 (1966) and cf. Swift & Company v. Housing Authority of Plant City, 106 So.2d 616 (Fla.2d DCA 1958).

Reviewing the record in light of the above principles of law, I initially note that the trial court failed to hear the testimony and review the evidence in limine and in the first instance make a determination as to whether there was sufficient evidence as to the reasonable probability of rezoning to warrant submission of the issue to the jury. More important, I find that there is no reasonable probability of rezoning in the near or immediate future. This finding is based upon previous unsuccessful attempts to have the subject or neighboring parcels rezoned to high rise multi-family residential and this court’s holding in Langston v. City of Miami Beach, 242 So.2d 481 (Fla.3d DCA 1971) that “there was no probability shown that this property would be rezoned to permit a higher economic use.” See also Smith v. City of Miami Beach, 213 So.2d 281 (Fla.3d DCA 1968), cert. discharged, 220 So.2d 624 (Fla.1969). Also, unlike the case of Board of Commissioners of State Institutions v. Tallahassee Bank and Trust Company, 108 So.2d 74 (Fla.1st DCA 1958), 6supra, there is no finding of “bad faith” or “conspiracy” on the part of the City.

For the above reasons, I would reverse the judgments herein appealed and remand the causes for a new trial.

      . This case involved the condemnation of neighboring parcels of land.


author: BOOTH, Judge. ERVIN, Judge,

text:
    Willie McCANTS, Appellant, v. STATE of Florida, Appellee.
    No. HH-217.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.
    Rehearing Denied Nov. 7, 1978.

      Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the judgment of the Circuit Court, Escam-bia County, adjudicating appellant guilty of two counts of sale of heroin and sentencing him to five years imprisonment on each count, with sentences to run concurrently.

The sole question presented is the correctness of the trial court’s ruling denying disclosure of the confidential informer. This ruling was made at the close of the hearing on appellant’s motion for disclosure. Testimony at that hearing established that the informer met Officer George Washington, an undercover officer on loan from Mobile, Alabama, City Police Department; that Officer Gray directed the informer to ride with Officer Washington, who was unfamiliar with Pensacola, for the purpose of pointing out locations in the city as well as suspected drug dealers, including the defendant; that the informer was advised not to participate in any manner or form in the transaction but that if necessary he could be present in the car and that he should avoid seeing the drug buy. Officer Gray also testified that he had used this informer many times before; that he had participated in twenty-six to thirty cases for the Drug Task Force and was still working with them, having made contact with Gray on the very morning of the disclosure hearing. Concerning the danger to the informant from disclosure of his identity, Officer Gray testified: “He would have to leave town or be killed, I would say, within a week . . . ”, and that the case against appellant would be nolle prossed if the informant’s name had to be mentioned.

Defense counsel, on the other hand, made the following argument as the basis for requiring disclosure:

“My argument is this man was present when a buy went down. The only evidence against my defendant is the word of George Washington. I think my defendant has the right to examine anybody who has information relevant to the offense. Mr. Gray didn’t have to place this man in that position. They chose to do that and since they chose to do that, they have made him an essential witness in the case. For my man not to be able to examine him deprives us of an adequate defense.”

The trial court heard the testimony at the hearing, ascertained that the State would not introduce any evidence obtained by, or testimony of, the confidential informer at trial and denied disclosure.

The case was tried to the court, without a jury. At trial Officer Gray testified that he described appellant to Officer Washington; that he told Washington the appellant would be at the Grand Hotel and would have quantities of heroin for sale. Officer Gray also described appellant’s car, a 1965 Cadillac, burgundy in color with “superfly” figures stuck on it. Following these instructions, Officer Washington went to the Grand Hotel and recognized appellant from the description given him by Officer Gray. He found appellant, as described by Gray, in front of the Grand Hotel and noted that appellant “was going back and forth to different cars.” Officer Washington also stated that he saw appellant’s car, which Washington described as “a burgundy Cadillac all dressed down with a lot of wide whitewalls . . . ” in the vicinity of the hotel.

Officer Washington purchased heroin from appellant on two different occasions, February 18th and March 4, 1977, and plainly identified appellant at trial as the seller. The confidential informer was seated in the car, a fact stated during the testimony of both Gray and Washington, but did not participate in the purchases.

In addition to the testimony of Gray and Washington the State presented witnesses who identified the substance purchased from appellant as heroin. The appellant then took the stand and denied that he sold heroin to Washington. He admitted that he owned a 1965 burgundy Cadillac, but stated that it was at his house on the days in question and that he hadn’t driven it in six months. Appellant also admitted that he had been to the Grand Hotel but denied that he had done so frequently or on the occasions in question.

At no time during the hearing on disclosure did appellant or his counsel indicate to the court any line of defense, such as alibi or entrapment, to which the informer’s testimony could be material. Once disclosure was denied, appellant seized the opportunity to testify at trial, denying that either he or his car was present at the Grand Hotel on the dates of the sales. On appeal, this testimony has been enlarged into the defense of “misidentifieation,” in an effort to make the informer’s disclosure material.

In Roviaro v. U. S., 353 U.S. 53 at 59, 77 S.Ct. 623 at 627, 1 L.Ed.2d 639 (1957), the court stated:

“What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law . . . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law — enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.”

In the instant case, no particular defense was raised by appellant which the trial court could have considered in weighing the possible significance of the informer’s testimony. The informer’s testimony was not used at trial nor was the informer, as in Roviaro v. U. S., supra, an active participant in the criminal occurrence. The individual who purchased the drugs from appellant was not the informer but Officer Washington, who testified at trial and was subject to cross-examination by appellant’s counsel.

In Roviaro v. U. S., supra at 62, 77 S.Ct. at 628, the Supreme Court stated a balancing test to determine when fundamental fairness would require disclosure of the confidential informer, stating:

“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend upon the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (emphasis supplied)

In Treverrow v. State, 194 So.2d 250 (Fla. 1967), the Supreme Court of Florida emphasized the Roviaro requirement that consideration be given to “the possible significance of the informer’s testimony” and listed a number of factors, stated in an earlier opinion of the District Court of Appeal, Second District, in Spataro v. State, 179 So.2d 873 (Fla. 2nd DCA 1965) and 76 A.L. R.2d at 262, for consideration by the trial court in determining whether an exception to the privilege of non-disclosure is to be allowed. The Treverrow case also states the rule as to the burden of the defendant in overcoming the privilege of non-disclosure, as follows (194 So.2d at 252):

“Clearly, since it is the State which has the privilege of non-disclosure [of confidential informer] the burden is upon the defendant claiming an exception to the rule to show why an exception should be invoked.” (emphasis supplied)

The test for “materiality” of evidence required to be disclosed by the State in a criminal case is stated by the United States Supreme Court in U. S. v. Agurs, 427 U.S. 97 at 109, 112-113, 96 S.Ct. 2392 at 2400, 2401-02, 49 L.Ed.2d 342 (1976):

“The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial .”

In State v. Sobel, 363 So.2d 324 (Fla. 1978), the Supreme Court, quoting from Agurs, supra, held the State’s failure to produce a tape-recording made during the purchase by a confidential informer of illegal drugs from the defendant did not require' reversal of the conviction for sale of those drugs. The Supreme Court noted that “the purpose of the discovery rule is to aid a defendant in the preparation of his case, not to give him a procedural escape hatch for the avoidance of prosecution.”

The privilege of non-disclosure of a confidential informer is limited by the fundamental requirement of fairness to the person accused of the commission of a crime. The possible danger to the informer if disclosure is allowed, is an important factor to be considered and must' be weighed against the materiality of the disclosure to the defense. Thus, the trial court in ruling on appellant’s motion for disclosure was required to weigh appellant’s general assertion that he had a right to examine anyone with information relative to the offense as against the testimony given at the hearing that the informer’s life would be in danger if his identity was revealed. Roviaro recognizes the importance of the trial court’s function in “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense . . . ” In this case the trial court balanced those interests and found that the public interest in protecting the flov.' of information and the life of the confidential informer outweighed the claim of appellant to obtain such information as might result from disclosure of the informer’s identity.

Accordingly, the judgment below is AFFIRMED.

MILLS, Acting C. J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

The majority relies upon the contradictory testimony of Officer Washington at trial that his identification of appellant was based not upon information furnished to him by the informer, but rather from his recollection of the description provided by Officer Gray. The motion for disclosure, however, was made pre-trial, when, during the deposition of Officer Gray, the deponent refused to disclose the identity of a confidential informant. The deposition was adjourned temporarily and reconvened in the presence of the court for the purpose of complying with Fla.R.Crim.P. 3.220(j), which permits a party to apply to the court to enter such order as necessary to complete discovery. What Officers Gray and Washington may have later stated at trial was simply not appropriate to the argument made pre-trial that the identity of the confidential informer, based upon the record then before the court, should be disclosed. The point before us contends that the court erred in denying the motion to disclose. The circumstances surrounding the informant’s responsibilities were described by Officer Gray during his pre-trial deposition as follows:

The informant met at the prearranged location with me and George Williams. He was advised by myself as to what I wanted him to do. I made a list of names of people I knew were trafficing [sic] in heroin and I advised the confidential informant not to participate in any manner or form in the transaction. That if necessary he could be present, in the car, but if necessary to keep from even seeing the buy, to either look out of the window or step out of the car and go have a beer. The only thing I wanted him to do was to introduce George Washington to these persons and not to participate in any fashion in the transaction, (e.s.)

Clearly then the informant was instructed to participate minimally in the transaction by introducing the appellant to Officer Washington. Officer Washington testified, previous to Gray, on deposition that he had received a description of appellant from Gray, and when he went to the vicinity where he was advised appellant would be, the following occurred:

A. . the informant advised me that this was the subject we were looking for, Willie McCants. I called Willie McCants over to the car.
Q. The informant advised McCants that you were looking for him?
A. No, the informant told me that was McCants—
Q. Oh, okay.
A. —standing in front of the Grand Hotel.
Q. All right.
A. I called him to the car, to the vehicle, .

While Washington stated that Gray had previously shown him a photograph of appellant, his deposition testimony was explicit that the informant advised him that the person on the street corner was appellant. However, there was additional participation by the informant in that after Washington called appellant over to the car, according to Washington, appellant spoke first to the informant.

In my opinion the appellant clearly brought to the attention of the court the relevancy of the informant’s testimony when he stated: “The only evidence against . defendant is the word of George Washington.” Only the informer could have corroborated appellant’s testimony that he was not involved in the drug transactions on the two dates alleged, February 18 and March 4, 1977. The lower court conceded the relevancy of the confidential informant’s testimony by stating:

I can understand this witness will undoubtedly have relevant information, but since the State doesn’t intend to use him in trial, I don’t think any constitutional rights are impaired. I hope not.

I think the defendant’s motion adequately brought the defense of misidentification before the court. If disclosure of an informer’s identity is relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause, the state’s privilege of non-disclosure must give way. State v. Hassberger, 350 So.2d 1, 2 (Fla.1977); State v. Matney, 236 So.2d 166 (Fla. 1st DCA 1970). Unlike the facts in Hawkins v. State, 312 So.2d 229 (Fla. 1st DCA 1975), the informer’s identity here was material in determining the guilt or innocence of defendant, who took the stand and denied his guilt. The following statement by the Fourth District Court of Appeal in Woods v. State, 355 So.2d 437, 439 (Fla. 4th DCA 1978), is instructive: “[H]ad the informant corroborated appellant’s contention it may well have led to an acquittal.” And, as in Woods, only the informant could have corroborated appellant’s testimony that he was not involved in the drug transactions on the dates alleged.

Our Supreme Court has proposed the following criteria be considered in determining whether the privilege against disclosure should be accorded the state: (1) Whether it is necessary for the prosecutor to refer to the informer in the presentation of the case, or whether the informer’s existence was first brought out on cross-examination by the defendant; (2) whether the informer was an active participant in the offense with which the defendant is charged or is a mere informer who supplies a lead; (3) whether the accused admits or does not deny guilt, and (4) whether there is independent evidence of the accused’s guilt. Treverrow v. State, 194 So.2d 250 (Fla. 1967).

Applying the above criteria to this case, the state referred to the confidential informant during its case in chief. The informant was present during all the criminal transactions with which appellant ' was charged, and in fact first pointed out appellant to the undercover agent prior to the sale. The informant was the person to whom appellant allegedly first spoke when he approached the automobile prior to the drug transaction. Moreover, during the trial, the appellant denied ever having sold any narcotics to Washington, or indeed, ever having seen Washington before. Other than Washington’s testimony, there was no evidence linking appellant to the sales.

While the majority relies upon Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), which holds there should be a balancing of the public interest in protecting the flow of information against the individual’s right to prepare his defense, it failed to cite the following caveat made by the court:

A further limitation of the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of the cause, the privilege must give way. 353 U.S. at 60-61, 77 S.Ct. at 628, 1 L.Ed.2d at 645.

The majority concludes from Roviaro that the public interest in protecting the flow of information and the life of the confidential informer outweighs the claim of appellant to obtain the identity of the informant. Under the facts of this case, I must respectfully disagree. Once relevancy of the information is apparent, then the privilege must give way. If the government elects not to disclose such information, then it should be prepared to face the possibility at some point in the prosecution of making the hard choice whether to go forward with its ease and expose the identity of its informer, thereby jeopardizing his life, or refuse to do so, resulting in the case’s dismissal. The defendant should not be hampered in the preparation of his defense by the government’s decision not to disclose material evidence. In my view the conclusion reached by the majority achieves an imbalance favoring the prosecution.

I would reverse and remand for new trial with directions that the identity of the government’s informer be disclosed to the defense.

      . See, 64 Journal Criminal Law and Criminology 56, 63 (1973).


author: BOYER, Judge.

text:
    VENEZIA A, INC. and Venezia C, Inc., Appellants, v. Reubin O’Donovan ASKEW, Governor of the State of Florida, et al., Appellees.
    No. 11-353.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.
    Rehearing Denied Nov. 7, 1978.

      Joseph W. Beasley and George W. Wright, Jr. of Kelly, Black, Black, Wright & Earle, Miami, Roberts, Miller, Baggett & LaFace, Tallahassee, for appellants.
    Jack W. Pierce, Tallahassee, Robert L. Shevin, Atty. Gen., Martin S. Friedman, Asst. Atty. Gen., Douglas C. Kearney, Asst. Atty. Gen., for appellees.
   BOYER, Judge.

Appellants, plaintiffs in the trial court, filed a two count complaint against defendants, seeking by count I inverse condemnation and by count II damages for breach of contract. Ruling on the defendants’ motion to dismiss, the trial court denied the motion as to count I but granted it as to count II on the basis of the doctrine of sovereign immunity. Upon review being sought here we denied relief on the grounds that certio-rari would not lie, the order sought to be reviewed was not subject to interlocutory appeal and that a dismissal of one or more, but not all, of the counts of the multicount complaint was not a final order or judgment from which a full appeal may be taken. (Venezia A, Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975).

A nonjury trial was thereupon held on the issues made by count I and the defendants’ answers thereto, following which the trial judge entered the final judgment now appealed. We quote it in toto:

“THIS CAUSE came on to be heard before the Court upon the amended complaint, the answer and the affirmative defenses thereto, the testimony of witnesses, and the argument of counsel of all parties, and the Court being fully advised in the premises, upon consideration, the Court finds as follows:
“1. That the Plaintiffs in this cause, Ve-nezia A, Inc. and Venezia C, Inc., are the assignees of those certain contracts between Magnolia Development Corporation and the Defendants, then Trustees of the Internal Improvement Fund of the State of Florida, being Contract No. 21670 and Contract No. 21672, and that certain agreement between Magnolia Development Corporation and the Trustees, both contracts and the agreement being dated November 1, 1957.
“2. Contract No. 21670 specifically required the contract purchaser to fill one-half of the land area described in the contract within 5 years from November 1, 1957. Contract No. 21672 also specifically required the contract purchaser to fill all of the land area described therein within 5 years from November 1, 1957. The agreement specifically stated that ‘Whereas it was agreed that the contract purchaser should not only have the right to remove the fill material where it abuts its land, but should agree that it would remove said fill from said waterways,
“3. There is no question from the evidence that Contract No. 21670 and Contract No. 21672 were amended at a later meeting of the Trustees to extend the time within which the Plaintiffs in this cause would have to fill the lands described in the contracts. The agreement of November 1, 1957, was also amended by the Trustees whereby the Plaintiffs were required to dredge a channel only 300 feet instead of 500 feet in width, but all other material terms and conditions of the agreement were unchanged.-
“4. The Court further finds by testimony and stipulation of counsel that the purchase price of the lands was paid by the Plaintiffs to the Trustees although the condition of filling the property, which was a condition precedent to acquiring a deed, has not been accomplished.
“5. The Court further finds that from 1962 until 1972 the Plaintiffs filled approximately 80 to 100 acres of the lands, subdivided the filled lands into lots, and sold the lots at a rate of approximately 10 lots per year. These lands were filled without a permit required by or obtained from the Trustees, but with a permit obtained only from the U. S. Corps of Engineers. However, the lands so filled were acquired by a deed from the Trustees since the lands had been paid for and filled, as required by the contracts.
“6. It further appears to the Court that on October 17, 1972, the Plaintiffs appeared before the Trustees and requested a permit to fill either all or a portion of the lands they sought to acquire under the above-mentioned contracts even though they had paid for the lands but had not complied with the express conditions of the contracts and the agreement which required them to fill. Since it is unclear from the statement made at that time to the Trustees by the agent of the Plaintiffs that ‘[w]e are here today only seeking a permit to fill in excess of 140 acres . . . ’ and from the two pages of the survey attached to the application to fill admitted into evidence, the Court is unable to determine the exact amount of acreage the Plaintiffs sought a permit to fill.
“IT IS THEREFORE ORDERED AND DECREED as follows:
“1. That the Plaintiffs, by virtue of being the assignees of Contracts No. 21670 and 21672 and that certain agreement dated November 1, 1957, between Magnolia Development Corporation and the Trustees of the Internal Improvement Fund, had an inherent and contractual right and obligation to fill the real property described therein before obtaining a deed from the Trustees. This right was not extinguished or impaired by a subsequent change in the dredge and fill permit laws in Chapter 253, Florida Statutes. Moreover, this right to fill was a part of the contracts between Magnolia Development Corporation and the Trustees of the Internal Improvement Fund, which right continued despite the change in the law, inasmuch as it is well settled that the Legislature cannot impair the contractual rights or obligations of parties to a contract.
“2. That the Plaintiffs in this cause have a continuing right to fill the property described in the above-mentioned contracts and agreement pursuant to the schedule provided therein and pursuant to any other laws applicable.
“3. That the two above-mentioned contracts and the agreement in and of themselves constituted a permit to fill and, therefore, it was unnecessary for the Plaintiffs to obtain from the Trustees a permit to fill the subject lands.
“DONE AND ORDERED at Leon County, Florida, this 12th day of December, 1977.”

Appellants’ primary contention is that in order for them to fill the property described in the final judgment a dredge and fill permit will have to be obtained from the United States Corps of Engineers and that the Secretary of the Army will not accept the contracts as constituting all requisite state permits and that therefore, notwithstanding the holding of the trial court that the subject contracts and agreements in and of themselves constituted a permit to fill, it will not be allowed to do so and that accordingly it is entitled to inverse condemnation. We find such contention to be premature. No application has been made to the Corps of Engineers for a dredge and fill permit nor has such a permit been refused. Whether or not the Corps of Engineers will honor the state permit decreed by the final judgment here appealed is conjectural. If the requisite permits are issued then clearly appellants have no right to inverse condemnation. Equally clearly they have no such right until they can demonstrate that such permits cannot be obtained: Whether or not such a showing will entitle appellants to relief, against whom and where, are matters not now before us and upon which we refrain from speculating.

Appellants rely upon Askew v. Gables-By-The-Sea, Inc., 333 So.2d 56 (Fla. 1st DCA 1976), but that reliance is misplaced. Whether future actions (or inaction) by the state will cause the principles of that case to become applicable remains to be seen; but those principles, in order to be the basis for the granting of relief, must be applied to proven facts, not suspicions, speculation and conjecture.

The well reasoned final judgment of the learned trial judge, above quoted, is affirmed.

We also affirm dismissal of count II of the complaint on the ground of sovereign immunity. (See Article X, Section 13 of the Constitution of the State of Florida.)

AFFIRMED.

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


text:
    Robert BINGHAM, Big E Corporation and Hartford Accident & Indemnity Company, Individually and Jointly, Appellants, v. Clifton MANSON and Brenda Manson, his spouse, Appellees.
    No. KK-140.
    District Court of Appeal of Florida, First District.
    Sept. 21, 1978.
    Rehearing Denied Nov. 7, 1978.

      Carl K. Staas, of Boyd, Jenerette, Leemis & Staas, Jacksonville, and Sharon L. Wolfe, of Greene & Cooper, Miami, for appellants.
    P. J. Carroll, and Edward A. Perse, of Horton, Perse & Ginsberg, Miami, for ap-pellees.
   BOYER, Judge.

We are again, by this interlocutory appeal, called upon to resolve a venue issue.

Appellees, who were plaintiffs in the trial court, residents of Dade County, were involved in an automobile accident in the State of South Carolina. They commenced an action in Dade County against Robert Bingham, a resident of Duval County, Big E Corporation, a bankrupt Florida corporation having its principal office in Duval County and Hartford Accident & Indemnity Company, a foreign corporation doing business in Florida. In response to appropriate proceedings challenging venue the case was transferred to Duval County.

After conducting discovery proceedings while the case was lodged in the Circuit Court in and for Duval County the plaintiffs (appellees here) filed a motion to change venue back to Dade County pursuant to F.S. 47.122, the “convenience statute”. That motion was granted. This appeal followed.

Venue statutes are creatures of the legislature and not the courts. When the language of a statute is clear and unambiguous it is not the prerogative of the courts to construe it differently from the plain meaning of the words employed, nor is the wisdom of the statute within the ambit of the court’s authority.

F.S. 47.131 provides:

“When it appears to the court to which an action has been transferred by a change of venue that any of the grounds for change of venue exist in the county to which the action has been transferred, the court may order a second change of venue, but it shall not be made to the county from which it was originally transferred.” (Emphasis Added)

Appellee urges that convenience of the parties or witnesses constitutes an exception to the concluded clause of the statute above emphasized. We find no such exception. Indeed, it is pertinent to note that the legislature apparently contemplated such a contention by providing that when it appears to the court to whom the case was transferred that “any of the grounds for change of venue exist in the county to which the action has been transferred” a second change of venue may be ordered “but it shall not be made to the county from which it was originally transferred.” More explicit language could have hardly been employed. Clearly, convenience of the parties and interest of justice are within the meaning of the phrase “any of the grounds for change of venue” as that phrase is used in F.S. 47.131.

There, is, though, an even more compelling reason for reversal.

The statutes provide three basic venue alternatives:

(a) Where the defendant resides, or if a domestic corporation, where such corporation has, or usually keeps an office for transaction of its customary business;
(b) Where the cause of action accrued;
(c) Where the property in litigation is located.

It will be noted that in both F.S. 47.011 and 47.051 the legislature saw fit to employ the limiting word “only”.

By F.S. 47.122 the legislature provided: “For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.”

We conclude that the concluding phrase of the last quoted statute “in which it might have been brought” refers to the three venue alternatives provided by F.S. 47.011 and F.S. 47.051 and is therefore a limitation upon the operation of F.S. 47.122. We essentially held as much in the Ringling Bros, case wherein we said:

“It follows therefore that Sarasota County is a county in which the action ‘might have been brought.’
“We having found that Sarasota County was a proper forum for the bringing of the action, and it having been established that such is the more convenient forum, it follows that the order transferring the case to Sarasota County pursuant to Florida Statutes § 47.122, F.S.A., was proper.”

Our reasoning that the legislature intended to limit change of venue for the convenience of the parties or witnesses or in the interest of justice to a court in another county “in which it might have been brought” under F.S. 47.011 or 47.051 is strengthened by the absence of any such limiting language in the general change of venue statute, F.S. 47.101.

In summary, we hold that inasmuch as Dade County was not one of the alternative counties where the subject action was permitted to have been brought under F.S. 47.011 and it was the county from which the action was transferred to Duval County, the learned trial judge erred when entering the order here appealed by which the action was transferred from Duval County to Dade County.

Reversed and remanded for further proceedings consistent herewith.

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

      . See Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, 295 So.2d 314 (Fla. 1st DCA 1974); Perry Building Systems, Inc. v. Hayes & Bates, Inc., 361 So.2d 443 (Fla. 1st DCA 1978), Opinion filed August 11, 1978; and Bassett v. Talquin Electric Cooperative, Inc., 362 So.2d 357 (Fla. 1st DCA 1978), Opinion filed August 14, 1978.

      . Leave was obtained in the bankruptcy proceeding to proceed against the corporation to the extent of its liability insurance coverage.

      . The amended complaint alleged Hartford Accident & Indemnity Company to be the insurer of the vehicle owned by Big E Corporation which was involved in the accident.

      . No contentions are made nor points presented calculated to raise the principles of Permenter v. Bank of Green Cove Springs, 136 So.2d 377 (Fla. 1st DCA 1962) nor is it contended that the presence of Hartford Accident & Indemnity Company in the suit vests venue in Dade County. (See Walt Disney World Co. v. Leff, 323 So.2d 602 (Fla. 4th DCA 1975) and Florida Statute 47.011)

      . The relevant portion of that order provides: “That the Plaintiffs’ Motion for Change of Venue for forum non conveniens and for the convenience of the parties and witnesses, and in the interest of justice is hereby granted. This cause shall be transferred from the Fourth Judicial Circuit in and for Duval County to the Eleventh Judicial Circuit in and for Dade County, Florida.”

      . We confine our opinion to the points raised, which were phrased by appellant thusly:
      “I. Did the trial court err in transferring this case to Dade County wheré the case had originally been transferred from Dade to Du-val and the transfer back to Dade is prohibited by Florida Statutes § 47.131?
      “II. Did the trial court err in transferring this case to Dade County pursuant to Florida Statutes § 47.122, where Dade County was not a county where the action ‘might have been brought’?”

      . The basis for application of F.S. 47.122.

      . See F.S. 47.011 and F.S. 47.051.

      . We are not here concerned with nonresident individuals (F.S. 47.011) nor are we concerned with an agent or representative of a foreign corporation (F.S. 47.051).

      . Appellee urges, without citation of authority, that the concluding clause of F.S. 47.122 applies to jurisdiction of the court to which transferred rather than venue. We reject that contention.

      . Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, supra.

      . 295 So.2d at page 323. See also Bassett v. Talquin Electric Cooperative, Inc., supra.


author: MILLS, Acting Chief Judge.

text:
    Julius B. KITTRELL, Appellant, v. John A. CLARK et al., Appellees.
    No. EE-419.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1978.
    Rehearing Denied Nov. 7, 1978.
    Harvey R. Klein and H. Randolph Klein, Ocala, for appellant.
    Kenneth H. MacKay, Jr. and Thomas C. Ranew, Jr. of Pattillo, MacKay & McKeever, Ocala, for appellees.
   MILLS, Acting Chief Judge.

The question presented by this appeal is whether the probate of an estate of a former party in interest within 30 years after the recording of the root of title preserves the prior interest from extinguishment under the Marketable Record Title Act even though there is no description, inventory or mention in the probate proceedings of the property in question.

In 1903, R. S. Hall, appellee Hallie Hall Blocker’s grandfather, conveyed certain land to H. M. and O. Goethe, “excepting and reserving from the operation of this conveyance all phosphate minerals, and oils upon, in or under any or all of the . land.” In 1905, H. M. Goethe, et al., conveyed the land to C. J. McGehee, et al., d/b/a McGehee Lumber Company by warranty deed containing the following clause:

“Reserving, however, unto said first parties, ... all phosphate, minerals and oils upon . . . the lands above described, which were conveyed to first parties by R. S. Hall, [et al.]. . . . ”

In 1910 McGehee Lumber Company conveyed the property without reservation to Florida National Land Company, and in 1914 Florida National Land Company conveyed the property to John A. Clark. The latter deed, relied upon by appellant Kit-trell as his root of title, made no reference to, and purported to convey, the phosphate, minerals and oils in the land previously reserved to R. S. Hall. In 1919, R. S. Hall died and his will, which devised all his real property to his wife, Mamie Hall, was probated in Marion County. The will did not particularly describe any real property, and nothing filed in the estate, including the Federal Estate Tax Return, which listed numerous real estate holdings, contained any description or reference to the subject mineral and oil rights. The estate of Mamie Hall, probated in 1948, does not contain any reference to the subject rights, and the Petition for Probate of Will recites that no real estate was owned by the decedent. No estate appears of record for W. Robert Hall, appellee’s father, and the estate of Sarah D. Hall, appellee’s mother, probated in 1968, contains no reference or inventory of the phosphate, minerals and oils. The appellant received title to the property in question in 1957 from John A. Clark, and filed this suit to quiet title in 1976.

Chapter 712 is Florida’s Marketable Record Title Act. The Act provides that any person who, along with his predecessors, “ . . . has been vested with any estate in land of record for thirty years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claim except the matters set forth as exceptions to marketability in Section 712.03.” Section 712.02. Section 712.-03 lists the rights that are not extinguishable by the marketable record title. Among the rights that are not extinguished are estates or interests “ . . . arising out of a title transaction which has been recorded subsequent to the effective date of the root of title.” Section 712.03(4). A “title transaction” is defined as “ . . . any recorded instrument or court proceeding which affects title to any estate or interest in land.” Section 712.01(3).

Appellee Blocker contends that the probate of R. S. Hall’s estate in 1919 was a court proceeding affecting title to the subject phosphate, mineral and oil interest which occurred subsequent to the date of the root of title, and therefore the interest is preserved pursuant to Section 712.03(4).

Under the common law in effect in Florida in 1919, no probate of a will of real estate was necessary. Redfern, Wills and Administration in Florida, fourth edition, § 10.07. However, under the Revised Statutes of 1892, wills of real estate could be admitted to probate. Section 1808, Florida Statutes (1892). Insofar as it concerned personalty, the probate of a will was conclusive as to its validity; insofar as it concerned real estate, probate was prima facie evidence as to the validity of the will. Section 1810. Wills which were admitted to probate were to be recorded by the county judge. Section 1814.

The will of R. S. Hall conveyed all of the real property owned by him to his wife. The will was admitted to probate and recorded in the office of the county judge.

We conclude that the probate and recording of R. S. Hall’s will in 1919 was a “title transaction” within the meaning of Section 712.01(3) even though there was no description, inventory or mention in the will or probate proceedings of the specific property in question. Section 712.01(3) does not require that the “title transaction” specifically describe the estate or interest which it affects, and in 1919 there was no requirement that an inventory of real estate be filed in estate proceedings. Since the probate of R. S. Hall’s estate was a title transaction recorded subsequent to Kittrell’s root of title, the phosphate, minerals and oils interest was preserved from extinguishment by Section 712.03(4).

Appellant suggests that we construe “title transaction” to require the description of the land it purports to affect and that this would be consistent with the provisions of Sections 712.03(1) and 712.06(1)(e) which require an accurate description of the land or interest involved. This is a persuasive and appealing argument but we may not supply that which the legislature did not choose to include in Sections 712.01(3) and 712.03(4). This is the sole prerogative of the legislature and we will not encroach upon its authority.

The judgment appealed is affirmed.

SMITH and ERVIN, JJ., concur.