author: ENGLAND, Justice. ADKINS, Justice,

text:
    OCCIDENTAL CHEMICAL COMPANY, Petitioner, v. William T. MAYO, William H. Bevis, and Paula Hawkins, as and constituting the Florida Public Service Commission, Respondents.
    No. 47928.
    Supreme Court of Florida.
    July 14, 1977.
    Rehearing Denied Nov. 21, 1977.

      Robert R. Feagin, III and George L. Var-nadoe, of Holland & Knight, Tampa, for petitioner.
    William L. Weeks, Prentice P. Pruitt and Donald R. Alexander, Tallahassee, for the Florida Public Service Commission, respondents.
    S. A. Brandimore, R. W. Neiser, H. A. Evertz, III and J. A. McGee, St. Petersburg, and B. Kenneth Gatlin and John W. Costi-gan, of Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for Florida Power Corp., intervenor-respondent.
    Woodie A. Liles, Donald W. Weidner and C. Earl Henderson, Tallahassee, for the Citizens of the State of Florida, intervenors.
   ENGLAND, Justice.

Occidental Chemical Company purchases electric power from Florida Power Corporation. When Florida Power sought a general rate increase from the Public Service Commission early in 1974, Occidental intervened in the rate proceeding. Eventually, the Commission granted Florida Power a rate increase of approximately $45,000,000, and Occidental now asks us to review that portion of the Commission’s award order which allocates the rate increase among Florida Power’s classes of customers. Occidental asks, alternatively, that we invalidate the Commission’s entire decision because it was made in violation of Florida’s so-called “Sunshine Law”, Section 286.011, Florida Statutes (1975). In this Occidental is joined by public counsel for the citizens of Florida.

Occidental’s major concern as to its share of the new rates is that the Commission rejected a predominant “cost of service” basis for allocating the company’s new rates among customers, and chose instead to allocate the additional revenues among Florida Power’s customers mainly by a proportional increase of rates previously paid by Florida Power’s several classes of customers.

A limited review of the development of this controversy will place it in perspective. The Commission held several days of public hearings on the proposed rate increase, in which Occidental actively participated. During these hearings the Commission received considerable evidence regarding the amount of Florida Power’s proposed rate increase, and the fairness of its rate structure. Occidental attempted to convince the Commission to use a “cost of service” method for allocating any rate increase among customers, believing its consumption costs Florida Power less to generate and distribute than other customer classes, such as residential. There was general agreement among the witnesses who appeared before the Commission as to the fairness of a “cost of service” rate structure but there was little agreement as to how to determine the costs of serving various users.

At the close of all testimony, some of the hearing participants, including intervenors, requested that they be provided copies of the Commission staff’s recommendations prior to the submission of their briefs. The requests were denied. Counsel for the Commission stated, however, that copies of the staff’s recommendations would be provided to the parties at the same time they were received by the Commission, or two or three days earlier, if possible.

On July 21, 1975, the Commission held a scheduled, public “agenda conference” at which it considered Florida Power’s rate request, and on that date the commissioners and all parties were given a copy of the staff’s 22V2 page proposed partial order. (The recommendations of the rate department staff had been filed with the clerk of the Commission three days earlier, on a Friday. These included a recommendation that the increase in rates be spread proportionally among the company’s classes of customers.) The proposed partial order approved the rate design of the company during the period that an interim rate increase had been in effect, but it made no recommendation for permanent rate design other than rejecting Occidental’s position on “cost of service”.

Florida Power’s portion of the agenda conference lasted for approximately 90 minutes. During that time the only mention of rate design came as staff counsel concluded an oral recitation of recommendations:

“Finally, the overall increase 19.9 percent. This compares with about 15 and a half to 15.9 per cent granted on an interim basis. These increases we are recommending be spread in a proportional manner to that proposed by the company originally.” (emphasis supplied)

The Commission made no inquiry and there was no other discussion on this recommendation, which, of course, implicitly rejected Occidental’s major concern throughout the entire proceeding. After the discussion the commissioners recorded on a vote sheet their individual votes on the staff’s overall recommendation and some minor evidentia-ry matters.

The following day Order No. 6794 was issued, consisting of 27% pages and containing the staff’s 22V2 page proposal essentially verbatim. Discussion in the extra five pages was confined to “General Tariff Design” and “Distribution of Revenues”, the latter section expressly rejecting interve-nors’ attempt to use cost of service as the sole or dominant criterion for allocating rates. The balance of these pages contained the Commission’s confirmation of facts discussed in the first 22V2 pages, a set of formal “findings of fact” essentially repeating matters set out in the first 22V2 pages, directive orders and two partial dissents not relevant here. Among the formal findings were statements

“12. That there is no legal requirement that rates for different classes of service must be either uniform or equal or that they generate an equal amount of return. 13. That in designing rates many factors must be considered, including but not limited to such factors as history of the tariff, rate continuity, public acceptance, value of service, cost of service, conservation, competition, and consumption and load characteristics, and that no single factor is controlling and susceptible of precise quantification but rather each must be viewed collectively in designing said rates.”

Occidental contends that the Commission’s decision regarding cost of service is neither supported by adequate findings of fact nor competent and substantial evidence. The Commission, joined by Florida Power, contests this assertion and further argues that cost of service need not be the sole or dominant factor in structuring rates anyhow.

Three interrelated issues presented for our review are the choice of allocation criterion, the sufficiency of the evidence, and the adequacy of the Commission’s findings. Treating the first, we note that no statute mandates a pure “cost of service” rate structure. In the past, we have recognized that other criteria may be used by the Commission in setting fair and reasonable rates. State v. Bevis, 283 So.2d 348 (Fla.1973) (value of service). See also Market Street Railway v. Railroad Commission of California, 324 U.S. 548, 65 S.Ct. 770, 89 L.Ed. 1171 (1945). In Idaho Power Co. v. Thompson, 19 F.2d 547, 579-80 (S.D.Idaho 1927), the complexity of the problem and the need for a deference to agency expertise were described as follows:

“Rate schedules involve a complexity of considerations. As a whole, they must yield a reasonable return on the investment. A relatively low rate may yield a larger aggregate net return than one that is relatively high. Rates need not be uniform, but, with rare exceptions, each should be above the cost of the particular service. A particular rate may be reasonable from the standpoint merely of cost (including investment); but, if it is prohibitive, because in excess of what the consumer can afford to pay — that is, in excess of its value to the consumer — it may be unreasonable. If it is the duty of the commission to see to it that the rates, both as a whole and for each particular service, are just to the utility and reasonable for the consumer, and nondiscriminatory as between consumers, it must have the power, not only to fix the rates for each class, but to classify.”

It may be, as Occidental contends, that “cost of service” is an ideally fair basis for structuring utility rates between various classes of users. Actually, we do not read Order No. 6794 as deciding otherwise. The Commission simply found on this record that there was no present means to implement a pure “cost of service” rate structure. Given the multiplicity of methods suggested by the experts to allocate expenses between various users, we cannot say that the Commission departed from the essential requirements of law in relying on a range of criteria for this purpose. It is immaterial whether we would agree or disagree with Occidental as to the weight to be given a particular “cost of service” formula. The Commission sets rates; not this Court. Florida Retail Federation, Inc. v. Mayo, 331 So.2d 308 (Fla.1976).

An entirely separate issue is whether the Commission’s rate structure se-lection is supported by competent, substantial evidence. An examination of the relevant portions of Order No. 6794 discloses that, except for a few unexplained re-classifications of customers, the Commission retained the basic rate structure previously approved for Florida Power as being fair and reasonable. It is difficult for us to overturn a decision of the Commission to continue a rate structure previously found to be fair and reasonable, absent a clear showing in the record that the earlier structure was arbitrary or that changed circumstances have made it unreasonable. In this case, Florida Power fully explained why its proposal for new rates was based generally on its previous rate design, and why it proposed to make some modifications. The record contains adequate evidence to support the Commission’s decision.

The third issue is whether the order contains a sufficient supporting statement of facts. All parties agree that the Commission must include in its orders the specific findings of fact upon which its ultimate conclusion is founded. While the order does not identify specific facts in the record supportive of the several “findings” made by the Commission, we find no error sufficient to justify a remand for more specificity. The Commission dealt very specifically with all significant rate design changes. Obviously, the Commission was not required to include in its order a summary of the testimony it heard or a recitation of every evidentiary fact on which it ruled. The order contains a succinct and sufficient statement of the ultimate facts upon which the Commission relied, including commentary expressly directed to Occidental’s contentions.

Finally, we are asked to hold that the Commission violated the Sunshine Law in reaching its decision in this case. Section 286.011(1), Florida Statutes (1975), requires public meetings whenever the Commission takes “official acts”, and it invalidates “formal action” taken in private. Initially, we reject Occidental’s broad-brush argument that all meetings between the commissioners and their staff «must be open to the public. The Commission’s staff is not subject to the law.

Occidental argues, more narrowly, that because the agenda conference lasted only 90 minutes and resulted in adoption of the pre-prepared staff proposal, the commissioners either met in private to reach a consensus or delegated their decision-making responsibility to staff. Admittedly, the adoption of a multi-page decision document at the end of a complex rate case, with minimal pertinent discussion, creates an appearance of pre-judgment. There is, of course, no evidence in this record that the commissioners met in secret or used staff members as intermediaries in order to circumvent public meeting requirements. The Commission suggests that it is just as reasonable on this record to assume, contrary to Occidental’s assumptions, that the commissioners individually studied Florida Power’s petition in light of the extensive data they personally heard developed at the hearings, that they reached independent judgments on the many issues involved in rate-making, and that in doing so they would have been privileged to call upon staff members for legal advice or for an amplification of facts.

We cannot indulge in speculation as to what did or did not occur with respect to matters contained in the 22V2 page partial order prepared prior to the agenda conference. So far as the record shows, the commissioners did not discuss various points among themselves before making a final decision. They may have utilized some preconceived standard procedure to reduce all issues to writing, in the form of a draft order, in preparation for their joint meeting at the agenda conference. There is no infirmity in their process if they did. Nothing in the Sunshine Law requires each commissioner to do his or her thinking and studying in public. The law is satisfied if the commissioners reached a mutual decision on rate matters when they met together in public for their “formal action”. They were unquestionably free to alter their views on some or all of their staff’s 221/2 pages of recommendations until their votes were recorded at the end of their public meeting.

The “agenda conference” procedure by which the Commission decided those portions of the rate case contained in the 22fh page staff proposal may not produce the robust and open public debate which advocates of open government would like, but there has been no showing that an official act of the Commission preceded the public meeting or that the commissioners met together to reach a final decision out of the public spotlight. The mere inference offered by Occidental is no more persuasive than that offered by the Commission. This case, then, is not controlled by Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), where the record adequately established that the town council had created a citizens committee to serve as its alter ego, and that the council later gave summary approval to the committee’s recommendations in a purely ceremonial public meeting.

We note, however, although it has not been argued by the parties, that the Commission did not specifically approve in any public meeting the last five pages of Order No. 6794. In those pages the Commission for the ■ first time expressly approved as fair and reasonable Florida Power’s proposed distribution of the rate increase among customers, and set the precise percentages by which the rates for each class of customers would be raised. It is unclear whether these findings were made in public. The ambiguous nature of the Commission’s voting procedure makes it impossible for us to determine whether the commissioners were approving not only the proposed partial order of their staff but also the previously-filed recommendations of the rate department. Absent a clear record and a proper presentation of the issue by the parties, we can make no decision on these findings in Order No. 6794.

For these reasons, the petition for the writ of certiorari is denied.

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

ADKINS, J., dissents with an opinion.

BOYD, J., dissents.

ADKINS, Justice,

dissenting.

I dissent from that portion of the decision relating to Section 286.011, Florida Statutes.

This statute in pertinent part provides as follows:

“(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meeting.”

In Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), this Court held that a citizens’ planning committee composed of private citizens, established by the Town Council, which appointed the members, was subject to the government in the sunshine law. The purpose of the committee was to guide a planning firm whose services had been contracted for by the Council in the firm’s production of an updated zoning plan for the town. Numerous meetings between the committee and the planners took place, none of which were open to the public. Upon presentation of the plan to the Council, full public meetings and hearings were conducted and proper procedure followed. The comprehensive zoning plan was approved in essentially the same form as that which had been produced by the planners and the committee.

This Court found the committee to be an arm of the Town Council, and declared that a subordinate group or committee selected by governmental authorities should not feel free to meet in private. The rationale was stated as follows:

“One purpose of the government in the sunshine law was to prevent at non-public meetings the crystallization of secret decisions to a point just short of ceremonial acceptance. Rarely could there be any purpose to a non-public pre-meeting conference except to conduct some part of the decisional process behind closed doors. The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken.” (p. 477)

Characterization of an agency’s decision-making process as “quasi-judicial” does not authorize the agency to make decisions out of the sunshine. Canney v. Board of Public Instruction, 278 So.2d 260 (Fla.1973). The Public Service Commission clearly falls within the term “any agency” as used in the statute, and is therefore subject to the requirements of the Government in the Sunshine Law. Attorney General Opinion 073-344 (1973).

An examination of the circumstances surrounding the instant case compels the conclusion that the influence and input of the Commission staff in the decisionmaking process was so considerable as to subject the staff itself to the requirements of the Government in the Sunshine Law. The staff prepared a proposed order which was first made public at the Commission’s Agenda Conference of July 21, 1975. Discussion of the proposal lasted ninety minutes, after which time the Commission, by a 2-1 vote, issued Order No. 6794 in essentially the same form as proposed by the staff.

The Commission and Intervenor Florida Power Corporation contend that there is nothing in the record to indicate that the Commission blindly adopted the staff’s recommendations without exercising its own final discretion. In support of this contention, respondents note that the Commissioners sat through four weeks of evidentiary hearings, thereby acquiring considerable knowledge of various phases of rate-making and revenue requirements. Nevertheless, I find that the Commission’s decision was crystallized upon completion of the proposed order by the staff, shielded from the “sunshine” to which the law required it to be exposed. Section 286.011, Florida Statutes.

The purpose of the government in the sunshine law is not to open every performance of an administrative duty by an agency employee to public scrutiny. Such an interpretation would hinder governmental function to the point of deleteriously affecting the citizenry whom the law was designed to protect. Where official agency action is to be taken, however, the will of the people as expressed through the legislature is that the deliberations which result in the consummation of such action will be held in full public view.

The Order entered by the Commission following the Agenda Conference was twenty-eight pages long. It is inconceivable that an interested party could have comprehended the full nature and scope of the Order based upon the ninety minutes of discussion devoted to the proposal at the conference. It is also unlikely that the Commission, notwithstanding its expertise in the area acquired at the evidentiary hearings, could have arrived at a final decision on these highly complex matters after such brief consideration. Thus, the decision must have been reached at an earlier point in time. The fact that no specific meeting date of the Commission and/or its staff appears in the record does not preclude this Court’s finding a lack of compliance with the government in the sunshine law. It is sufficient that the surrounding circumstances clearly indicate that action tantamount to finalization was taken out of the sunshine. Requiring evidence of a particular meeting at a specific time and place would serve only to encourage concealment and secrecy in governmental proceedings, thereby undermining the statutory purpose.

Merely showing that the government in the sunshine law has been violated constitutes an irreparable public injury. Town of Palm Beach v. Gradison, supra, at 477; Times Publishing Co. v. Williams, 222 So.2d 470 (Fla. 2d DCA 1969).

Accordingly, Order No. 6794 of the Commission should be declared void for failure to comply with Section 286.011, Florida Statutes, and this case should be remanded to the Commission for further proceedings.

      . We have jurisdiction by reason of Art. V, § 3(b)(3), Fla. Const., and § 366.10, Fla.Stat. (1975).

      . Allocation of overhead and the cost of multiple use facilities, such as transmission lines, was particularly difficult. Additional difficulties resulted from allocating a fair rate of return to each class. Public counsel has pointed out to us an exhibit placed in evidence by Stauffer Chemical Company, an intervenor before the Commission, which shows that the use of any of four different methods of allocating costs produces four different rates of return on Florida Power’s service to the phosphate mining class. These rates of return range from a low of less than 6% to a high of nearly 19%.

      . Minor language changes appeared in two places.

      . Florida Power observes that Occidental did not prepare a “cost of service” study for submission to the Commission, and that Occidental vigorously attacked a cost study which Florida Power had prepared before drafting its rate increase request.

      . § 366.041(4), Fla.Stat. (1975); Greyhound Lines, Inc. v. Mayo, 207 So.2d 1 (Fla.1968). This case antedates the state’s new administrative procedure act, however. See § 120.59(2), Fla.Stat. (1975).

      . The Commission said it considered “value of service”, “competition” and “conservation” as factors relevant to rate design. As there was no evidence or controversy concerning these matters, it is not apparent how the Commission could have developed underlying facts in the hearings. It is clear, however, that the Commission did not implement a major change in rate design as a result of considering those factors. Were we to disregard these findings, the Commission’s order would still be supported by adequate findings.

      . The fact that the Commission’s decision-making process has been characterized as quasi-judicial does not exempt it from the statute. See Canney v. Board of Pub. Instr., 278 So.2d 260 (Fla.1973).

      . § 286.011(1), Fla.Stat. (1975). See Bennett v. Warden, 333 So.2d 97 (Fla. 2d DCA 1976).

      . After briefing, Occidental moved under Fla. App. Rule 3.6(J) for an order requiring the Commission to supplement the record with minutes, notes or summaries of all communications between staff and the commissioners during the pendency of the rate proceeding. We denied the motion. The rule is not a vehicle for counsel to cure record omissions fatal to the points urged on appeal, or to broaden the scope of review to matters not considered by the lower tribunal. Under the administrative procedure act as currently in effect, the “record” for appellate review of a proceeding such as this one would not include communications to the commissioners from advisory staff, if pub-lie records, such as those made before or during an agenda conference. §§ 120.68(5)(a), 120.57(1)(b)(5)(g), Fla.Stat. (Supp.1976). Presumably these communications can be offset or challenged by the parties at the administrative level, by appropriate motion or petition, either during or after the proceedings. See also Pasco County School Bd. v. Public Employees Relations Comm’n, 336 So.2d 483 (Fla. 1st DCA 1976).

      . The members of a collegial administrative body are not obliged to avoid their staff during the evaluation and consideration stages of their deliberations. Were this so, the value of staff expertise would be lost and the intelligent use of employees would be crippled. This case does not present a proper occasion, however, for us to determine whether all private collegial discussions among commissioners become decision-making acts which must occur in public. See Times Publishing Co. v. Williams, 222 So.2d 470 (Fla. 2d DCA 1969), suggesting that all deliberative discussions among commissioners are within the act, and contrast Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), condemning pre-meeting agreements which have the effect of rendering later meetings a “ceremonial sham”.

      . The Court’s ability to review this issue in a certiorari proceeding, unlike its ability to review issues in a criminal proceeding under § 286.011(3) or a declaratory judgment action, is limited. See Dade County v. Marca, S.A., 326 So.2d 183 (Fla.1976), where we reaffirmed the principle in certiorari proceedings that a reviewing court may not consider matters not made a part of the record in the agency whose order is under review.


source: Caselaw Access Project

author: HATCHETT, Justice.

license: Public Domain

text:
    ALLIED VAN LINES, INC., Petitioner, v. Ila M. BRATTON, Respondent. ALLIED VAN LINES, INC., et al., Petitioners, v. Roberta McKNAB, Respondent.
    Nos. 49517, 49596.
    Supreme Court of Florida.
    July 14, 1977.
    Rehearing Denied Nov. 21, 1977.

      Reinald Werrenrath, III of Akerman, Senterfitt & Eidson, Orlando, Arnold R. Ginsberg of Horton, Perse & Ginsberg, Hawkesworth, Schmick, Ponzoli & Wassen-berg, Miami, for petitioners.
    Joseph H. Williams of Troutman, Parrish & Weeks, Orlando, for lia M. Bratton, and Richard J. Aaron of Schryver, Hagaman & Aaron, Naples, for Roberta McKnab, for respondents.
   HATCHETT, Justice.

May an interstate shipper avoid the legal consequences of a limitation of liability provision contained in a Bill of Lading issued by a carrier and signed by the shipper, on the ground that the shipper did not read the document and therefore did not assent to its provisions? The Fourth District Court of Appeal [Allied Van Lines, Inc. v. Bratton, 330 So.2d 521 (Fla. 4th DCA 1976)] and the Second District Court of Appeal [Allied Van Lines, Inc. v. McKnab, 331 So.2d 319 (Fla. 2d DCA 1976)] answered this question in the affirmative. Conflict is asserted with Atlantic Coast Line Railroad Company v. Dexter, 50 Fla. 180, 39 So. 634 (1905). We have jurisdiction.

Mrs. Bratton, the “shipper,” hired Allied Van Lines, Inc., to transport her household goods from Ohio to Florida. At the time the goods were picked up, Mrs. Bratton signed a Bill of Lading, presented to her by-agents of the carrier, which contained a provision limiting carrier’s liability to $4,500.00, $1.25 per pound. The shipment was destroyed in transit and respondent sued to recover the full value of her goods. Liability was conceded. The sole issue to be determined was the proper amount of damages. It was Allied’s contention that its liability was limited by the provision contained in the Bill of Lading. Mrs. Brat-ton argued that since she did not read the document and was unaware of any provision affecting carrier’s liability, she was not bound thereby. The question was submitted to the jury on respondent’s assertions of “mistake” and “lack of assent” and a verdict was entered in favor of Mrs. Brat-ton in the amount of $10,630.00. The Fourth District Court of Appeal affirmed per curiam.

In accordance with I.C.C. Approved Tariff No. 144-C, immediately above respondent’s signature on the Bill of Lading in red letters and boldface type, there appeared the following:

UNLESS THE SHIPPER EXPRESSLY RELEASES THE SHIPMENT TO A VALUE OF 60 CENTS PER POUND PER ARTICLE, THE CARRIER’S MAXIMUM LIABILITY FOR LOSS AND DAMAGE SHALL BE EITHER THE LUMP SUM VALUE DECLARED BY THE SHIPPER OR AN AMOUNT EQUAL TO $1.25 FOR EACH POUND OF WEIGHT IN THE SHIPMENT, WHICHEVER IS GREATER.
THE SHIPMENT WILL MOVE SUBJECT TO THE RULES AND CONDITIONS OF THE CARRIER’S TARIFF. SHIPPER HEREBY RELEASES THE ENTIRE SHIPMENT TO A VALUE NOT EXCEEDING
(to be completed by the person signing below)
NOTICE, THE SHIPPER SIGNING THIS CONTRACT MUST INSERT IN THE SPACE ABOVE, IN HIS OWN HANDWRITING, EITHER HIS DECLARATION OF THE ACTUAL VALUE OF THE SHIPMENT, OR THE WORDS “60 CENTS PER POUND PER ARTICLE.” OTHERWISE, THE SHIPMENT WILL BE DEEMED RELEASED TO A MAXIMUM VALUE EQUAL TO $1.25 TIMES THE WEIGHT OF THE SHIPMENT IN POUNDS.

The space providing for the declaration of “actual value” or “60 cents per pound, per article” was left blank by respondent.

Mrs. Bratton testified that at the time she signed the Bill of Lading she realized that she was signing a contract. She also acknowledged that although she did not read the Bill of Lading, no agent of the shipper prevented her from doing so. In addition, several weeks prior to the move, respondent was personally handed an informational booklet entitled “Summary of Information for Shippers of Household Goods, Form BOP 103.” This booklet was an I.C.C. publication and contained a thorough description of all aspects of the move, including the Bill of Lading and the carrier’s liability. Respondent signed a receipt for the booklet, which receipt was admitted into evidence.

In the companion case, the “shipper,” Mrs. McKnab, contracted with Allied for an interstate move of household goods from California to Florida. When the goods were picked up, Mrs. McKnab explained to the carrier’s agent that she wanted all available insurance. The agent affirmatively stated that $1.25 per pound was the maximum possible. The agent not Mrs. McKnab, completed the space providing for selection of coverage, by typing in: “$1.25 per pound per order for service.”

The goods were destroyed by a fire while in the possession of the carrier and respondent sued. Again, the carrier admitted liability but maintained that liability was limited to $1.25 per pound ($9,300.00) as provided in the Bill of Lading. Mrs. McKnab contended that she was not bound by the provision contained in the Bill of Lading because she was not given “a reasonable and fair opportunity to value her goods.” Judgment was entered in favor of Mrs. McKnab in the sum of $33,315. The Second District Court of Appeal affirmed in part and reversed in part, remanding for new trial on the issue of damages. That court found sufficient competent evidence to support a finding of misrepresentation on the part of Allied but stated that “in measuring plaintiff’s [Mrs. McKnab] damages, the proper measure of damages for loss of personal property is its market value on the date of the loss.” Allied Van Lines, Inc. v. McKnab, supra, at p. 320.

It has long been held in Florida that one is bound by his contract. Unless one can show facts and circumstances to demonstrate that he was prevented from reading the contract, or that he was induced by statements of the other party to refrain from reading the contract, it is binding. No party to a written contract in this state can defend against its enforcement on the sole ground that he signed it without reading it. All Florida Surety Company v. Coker, 88 So.2d 508 (Fla.1956).

As to the validity of a limitation clause contained in a Bill of Lading, this Court, more than 70 years ago, put the issue to rest. In Atlantic Coast Line Railroad Company v. Dexter, supra, 50 Fla. 180, 39 So. at page 635, this Court stated:

The rule is quite generally settled in the United States that an acceptance by a shipper or his agent of a receipt or Bill of Lading containing a limitation of the carrier’s liability is binding upon him, when the limitation is not illegal or unreasonable; that it is not essential to the validity of such a limitation that it be shown that the shipper was aware of it, or that he had read it, or that it had been explained to him, or his attention called to it, provided the carrier made use of no improper means to prevent his noticing or objecting to it; and that every shipper is conclusively presumed, in such a case, to have read and assented to the provisions of the receipt or bill of lading given him, whether he in fact assented or not. . Under these circumstances it made no difference whether the plaintiffs ever expressly assented to the contract or not, or even read or knew of its terms and conditions. They are fully bound thereby, and are estopped from gainsaying or repudiating it.

The Dexter decision has been followed in an unbroken line of Florida cases. Seaboard Air Line Ry. Co. v. Schenck, 97 Fla. 16, 119 So. 517 (1929); Noone v. Southern Express Co., 79 Fla. 25, 83 So. 607 (1920).

Federal law is in accord. American Express Company v. U. S. Horseshoe Co., 244 U.S. 58, 37 S.Ct. 595, 61 L.Ed. 990 (1917); Rocky Ford Moving Vans, Inc. v. United States, 501 F.2d 1369 (8th Cir. 1974); Sorensen-Christian Industries, Inc. v. Railway Express Agency, Inc., 434 F.2d 867 (4th Cir. 1970).

We do not consider Chandler v. Aero Mayflower Transit Company, 374 F.2d 129 (4th Cir. 1967), primarily relied on by the trial courts below, to be controlling. In Chandler the Fourth Circuit Court of Appeals was dealing with a situation where a shipper signed a Bill of Lading under the mistaken belief that it was not a contractual document at all. The shipper was told (induced not to read) that the papers he was signing were “inventory” papers. In the cases presently before us, there is no evidence of misrepresentation as to the character of the documents signed. Both shippers knew they were signing a contract. Mrs. Bratton simply did not read the documents furnished or even ask questions about the Bill of Lading. Mrs. McKnab’s situation is different however, for she sought information, was mislead by the carrier’s agent as to available coverage, and was prevented from exercising her right to choose adequate coverage.

In Brannon v. Smith Dray Line & Storage Co., 456 F.2d 260 (6th Cir. 1972), it was held that a shipper is not bound by the valuation in a Bill of Lading when not adequately advised concerning alternatives regarding insurance. An interstate shipper may not avoid the legal consequences of a limitation of liability provision in a Bill of Lading on the ground that the Bill of Lading was not read and therefore its provisions not assented to. But, if a shipper can show that he was induced not to read the Bill of Lading or that the legal significance of its provisions were misrepresented, or that he did not have a reasonable and fair opportunity to exercise his right to choose alternative insurance coverage, then the legal consequences of the contract may be avoided.

Accordingly, we hold that the shipper’s liability in the Bratton case is limited under the liability provision contained in the Bill of Lading to $4,500.00, and the opinion of the Fourth District Court of Appeal is quashed and the case remanded for action consistent with this opinion; the opinion of the Second District Court of Appeal in the McKnab case is dffirmed.

It is so ordered.

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

      . Article V, Section 3(b)(3), Florida Constitution.

      . Q Okay. I will repeat the question. Did you understand that when you signed the bill of lading on October 22nd, 1973, that you were signing a contract between you and Allied Van Lines covering the move?
      A To move me from Canton to Orlando, yes.

      . Q Did anyone prevent you or stop you from reading the bill of lading?
      A No.
      Q Did anyone say anything to you that you took to be an inducement not to read it?
      A No. Like I said before, the house was really cold; and the men were tired. They were in a hurry to get out.

      .Q Did you read the booklet that you received?
      A Yes.
      Q Did you read it from front to back?
      A Yes.
      Q Cover to cover?
      A Yes.
      Q And then, did you sign the receipt and send it back to Allied?
      A Yes.

        Q Isn’t it a fact that you are in the habit of reading all documents carefully which you receive?
      A Yes.

      . Q Did you approach the subject of protecting your goods if they were damaged or lost?
      A That was what I stressed all the time in our conversation. “I want all the insurance I can get on these things when I get ready to move.”

      . Q Let me ask the question. Did you have any discussions with him at the time regarding the evaluation of your goods for insurance to protect you in the event of a loss?
      A No.
      Q Did you ask him any questions at the time regarding that?
      A I finally said, “Now what about insurance?” It had never been discussed. The move had been discussed and the packing had been discussed, how many boxes I would need and how many things were being crated. That sort of thing.
      Q What was his response to your question?
      A He said, “Yes, we give sixty cents per hundred pounds,” I believe is the way they expressed it.
      And I said, “That doesn’t sound like very much insurance for all the things that I have here that you have seen.”
      And he said, “Well, we will give you a dollar and a quarter and that is as much as you can get.”
      And I felt that was it and that I was covered.
      Q In other words, he said you couldn’t have any more than $1.25 a pound?
      A A dollar and a quarter.
      Q Did he at that time explain you could place a higher evaluation on your property?
      A No, sir.

      .Q Now, let me show you Plaintiffs Exhibit 2. Were you ever given the document to sign?
      A I must have been given the document, because my signature is on there.
      Q On that document is typed the words “One dollar twenty five cents per pound per Order for Service?”
      A Uh-huh.
      Q Did you type that in there?
      A No, sir.
      Q Someone other than yourself typed that evaluation on the Bill of Lading?
      A Yes, sir.
      Q Was that typed in there at the time it was presented for your signature?
      A No, sir.
      Q I show you Defendants’ Exhibit 2, which is a copy of the same document, and ask you if there are any differences between these two documents?
      A Well, I don’t know, Oh, yes.
      Q All right. Just briefly say what the difference is. It is obvious, but please testify.
      A One copy has all the items typed in; the other does not.
      Q Did you ever see a copy of the document with the items typed in?
      A No, sir.


author: PER CURIAM.

text:
    C. V. GRIFFIN, Sr. and C. V. Griffin Groves, a Florida Corporation, etc., et al., Petitioners, v. STATE of Florida, DEPARTMENT OF CITRUS, Respondent.
    No. 49749.
    Supreme Court of Florida.
    July 28, 1977.
    Rehearing Denied Nov. 21, 1977.
    Charles E. Davis and Stephen P. Kanar of Fishback, Davis, Dominick & Simonet, Orlando, for petitioners.
    Monterey Campbell of Campbell, Dunlap, Coward & Blakeman, Bartow, for respondent.
    Raymer F. Maguire, Jr. of Maguire, Voo-rhis & Wells, Orlando, for amicus curiae.
   PER CURIAM.

This case is before the Court under its conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution, and Fla.App. Rule 4.5 c (6).

After hearing argument, we are of the opinion that the writ of certiorari heretofore granted in this cause should now by discharged. Accordingly, the writ of certio-rari is discharged.

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

KARL, J., dissents.


author: NEWELL, EMERY J., Associate Judge. PER CURIAM.

text:
    Patrick L. ANDRESS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1866.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    On Rehearing Nov. 22, 1977.
    James M. Russ and Marshall B. Kapp, Law Offices of James M. Russ, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   NEWELL, EMERY J., Associate Judge.

Defendant was charged in a one count information with possession of marijuana in excess of five (5) grams. Defendant filed a pretrial motion to suppress tangible evidence which was denied by the trial judge. The case proceeded to trial by jury, culminating in a guilty verdict. Subsequently, and after post-trial motions were denied, the Court entered its order withholding adjudication of guilt and placing defendant on probation for four years.

At the pre-trial hearing on the motion to suppress evidence, the defendant alleged a warrantless search and contended that this was sufficient to place the burden of producing evidence to justify that search upon the State. The trial court rejected this argument stating it was the defendant’s motion and his obligation to proceed. No evidence was presented by the State or the defendant at this motion hearing.

This specific question was considered in State v. Hinton, 305 So.2d 804 (Fla.4th DCA 1975), wherein it was held the burden of sustaining the search shifted to the State once the defendant presented a prima facie showing of a warrantless search. See, too, Bicking v. State, 293 So.2d 385 (Fla.1st DCA 1974), and Mann v. State, 292 So.2d 432 (Fla.2d DCA 1974). The Hinton case further held it was not necessary for defendant to introduce testimonial or documentary evidence with respect to the nonexistence of a warrant in the court file— that the court is able to take judicial notice of this fact. It was, therefore, a mistake for the trial court to rule that the defendant had the burden of proving that the warrantless search was invalid. Because of this mistake, the trial court should, upon remand, hold another hearing on the motion to suppress. Mann v. State, supra.

Defendant further alleges error on the part of the trial judge in denying his requested jury instruction on scienter or knowledge. The denied instruction was:

“That he knew he had possession of cannabis; that he knew the material he possessed was cannabis, and that he knew the cannabis was in excess of five grams by weight.”

We agree defendant was entitled to an instruction that an essential element of the offense was knowledge by the defendant that the material he possessed was marijuana. See Cohen v. State, 125 So.2d 560 (Fla.1960); Hilding v. State, 291 So.2d 111 (Fla.4th DCA 1974); Rutskin v. State, 260 So.2d 525 (Fla.1st DCA 1972) and Schaufele v. State, 269 So.2d 400 (Fla.4th DCA 1972). Though Cohen involved the sale of obscene material, it was held that the defendant must have had knowledge of the obscene character of the periodical.

We are not persuaded, however, that a proper instruction on scienter should include knowledge of the weight of the contraband marijuana. Appellant does not argue this specific point in his brief nor does he offer any citations. We believe an analogy may be drawn between the value of property in larceny cases (of which there are many reported) and the weight of marijuana. Clearly the State must prove the value of stolen property to be $100.00 or more in order to sustain a verdict of grand larceny; but we are aware of no authority for the proposition that the defendant must know the value of the stolen goods at the time of taking. Is there any more reason that it must be shown he knows the weight of marijuana possessed? We think not and conclude that the jury instruction was too broad as requested and should have been given only with respect to defendant’s knowledge of the material possessed.

Accordingly, the order under review is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

CROSS and DOWNEY, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

On May 20,1977, we published an opinion reversing the judgment and sentence of the trial court upon the ground that the wrong burden of proof had been applied during a suppression hearing. However, the opinion went on to point out that the trial court should have instructed the jury that in order to convict a person of possession of cannabis it was necessary for the state to prove the defendant knew the substance was, in fact, cannabis.

Upon Petition for Rehearing the State has convinced us that we should withdraw that part of our opinion having to do with knowledge that the substance possessed was cannabis. On the record presented to us we conclude that appellant’s second point on appeal fails to demonstrate error.

Accordingly, the Petition for Rehearing is granted. This court’s opinion of May 20, 1977, is modified so as to eliminate therefrom that part of the opinion beginning on page 350 with the fourth full paragraph and continuing through the end of the opinion on page 351.

We also believe the proper disposition of the case is to reverse the judgment and sentence appealed from and remand the cause for a new suppression hearing and a new trial. Land v. State, 293 So.2d 704 (Fla.1974).

REVERSED AND REMANDED.

CROSS and DOWNEY, JJ., and NEW-ELL, EMERY, J., Associate Judge, concur.


author: DAUKSCH, Judge. DAUKSCH, Judge.

text:
    DUNHAM-BUSH, INC., Appellant, v. THERMO-AIR SERVICE, INC., and Broward Marine, Inc., Appellees.
    No. 76-1399.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    On Rehearing Nov. 15, 1977.

      Robert W. Stern, Miami, for appellant.
    Ben J. Weaver of Weaver & Weaver and Nancy Little Hoffmann, Fort Lauderdale, for appellee-Broward Marine, Inc.
   DAUKSCH, Judge.

Appellee-Broward Marine, Inc., a boat builder, was sued by Thermo-Air Service, Inc., an air conditioning contractor, on an open account for repairs made by Thermo-Air Service, Inc. to chiller systems located on two yachts owned by Broward Marine, Inc. Broward Marine, Inc. filed a third-party complaint for indemnification against Appellant Dunham-Bush, Inc., the manufacturer of the chiller systems.

The third-party complaint was dismissed with leave to amend. The amended version was substantially similar to the' original. Dunham-Bush, Inc. again moved to dismiss. The motion was denied.

A consent judgment in favor of Thermo-Air Service, Inc. was entered in the original action against Broward Marine, Inc. A non-jury trial was held on the third-party action and final judgment resulted in favor of Broward Marine, Inc.

Dunham-Bush, Inc. raises six issues in this appeal. It first contends that the lower court erred in denying its motion to dismiss the amended third-party complaint. We agree and therefore we need not reach the remaining issues.

We find that the amended third-party complaint fails to allege sufficient facts to state a cause of action for indemnity based on breach of warranty because certain minimum allegations are absent. The complaint should set forth factual allegations designating the basis for the right to indemnity such as contract, either express or implied, or from the existence and violation of a duty as between tortfeasors. Florida Power Corporation v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976). Or, equity may be applied to support a claim for indemnity as a result of the peculiar relation between the parties. Mims Crane Service, Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla. 2d DCA 1969). In the case sub judice, the amended third-party complaint merely stated that “this is an action for indemnity.” A factual allegation concerning the basis for this claim should have been stated.

In order to properly plead a cause of action for breach of warranties under the Florida Uniform Commercial Code a complaint should contain at least the following allegations:

1) Facts in respect to the sale of the goods;

2) Identification of the types of warranties created, i. e. express warranty (Section 672.313, Florida Statutes [1975]); implied warranty of merchantability (Section 672.-314, Florida Statutes [1975]); implied warranty of fitness for a particular purpose (Section 672.315, Florida Statutes [1975]);

3) Facts in respect to the creation of the particular warranty. For example, in the case of an implied warranty of fitness for a particular purpose, the complaint should allege that the seller had reason to know the particular purpose for which the goods were purchased by the buyer and that the buyer relied on the seller’s judgment in providing suitable goods. Section 672.315, Florida Statutes (1975);

4) Facts in respect to the breach of the warranty;

5) Notice to seller of breach. Section 672.607(3)(a), Florida Statutes (1975);

6) The injuries sustained by the buyer as a result of the breach of warranty.

The amended third-party complaint in the case sub judice does not include the above-stated essential allegations and therefore falls short of stating a cause of action.

REVERSED and REMANDED with instructions to dismiss the amended third-party complaint.

MAGER, J., and KANEY, FRANK N., Associate Judge, concur.

ON PETITION FOR REHEARING

DAUKSCH, Judge.

The lower court was instructed by our opinion issued August 12, 1977, to dismiss the amended third-party complaint. Appel-lee now requests that the opinion direct that on remand Appellee be given the opportunity to amend its complaint. To avoid any question as to our intent, we clarify our opinion by instructing the lower court to dismiss the amended third-party complaint without prejudice to Appellee’s right to file an amended complaint, all of which could have been avoided had the trial court permitted Appellee to amend its pleadings to conform to the evidence at trial as permitted in Fla.R.Civ.P. 1.190.

KANEY, FRANK N., Associate Judge, concurs.

ANSTEAD, J., concurs in conclusion only.


author: KANEY, FRANK N., Associate Judge.

text:
    Robert N. CLARK, as the City Clerk of Sunrise, Appellant, v. Dennis J. WALTON, Appellee.
    No. 76-1119.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1977.
    Rehearing Denied Nov. 23, 1977.

      H. Mark Purdy of Parkhurst, LaHurd & Purdy, P. A., Fort Lauderdale, for appellant.
    Frank E. Hamilton, III, of Hamilton, Douglas & Bennett, P. A., Fort Lauderdale, for appellee.
   KANEY, FRANK N., Associate Judge.

The Appellant, as City Clerk maintained custody and control of all documents and records of the City of Sunrise, Florida. The names and home addresses of all municipal employees were maintained only in personnel files and this information was also programmed into a computer used for payroll purposes.

Appellee was a union organizer, who desired the names and home addresses of all city employees.

Taking the position that even if these records were “Public records” they were privileged, Appellant offered to supply the names and business mailing addresses of the city’s employees.

Finding this to be unacceptable, Appellee filed a Petition for Writ of Mandamus in the Circuit Court in and for Broward County seeking to compel the Appellant to provide the names and home addresses.

After a hearing, the court entered a Final Judgment granting Pre-Emptory Writ of Mandamus.

This appeal followed.

We affirm.

In the case of Warden v. Bennett, 340 So.2d 977 (Fla.2d DCA 1976), the Second District Court of Appeal faced the samé issue we face here, viz, whether a union organizer has the right to obtain the names and home addresses of employees of a public entity, which are contained in the personnel records of that public entity.

In Warden, the Second District Court of Appeal said that the public entity was obligated by the Public Records Act to furnish the union organizer with the requested information.

Following the lead of our sister court, we also hold that the public entity is obligated by the Public Records Act to furnish the requested information.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.


text:
    Angel GUERRA, Plaintiff, v. GULF INSURANCE COMPANY, Garland E. Denmark and Reid & Son, Inc., Defendants.
    No. 77-1243.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1977.
    Irving.G. Lawrence, P. A., Tampa, for plaintiff.
    David A. Maney and Lee S. Damsker of Gordon & Maney, P. A., Tampa, for petitioner Richard Mulholland.
   PER CURIAM.

In the exercise of our discretion and within the purview of Fla.App. Rule 4.6, we decline to answer the question certified by the trial court.

McNULTY, A. C. J., and OTT and RYDER, JJ., concur.


author: OTT, Judge.

text:
    Harold E. BAILEY, Appellant, v. Frank DEEBOLD, Sr., Appellee.
    No. 77-265.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1977.
    Rehearing Denied Nov. 15, 1977.
    Donald W. Belveal, Tampa, for appellant.
    Julian Clarkson, Fort Myers, for appellee.
   OTT, Judge.

The trial court granted appellee’s motion to set aside a default and final judgment. We reverse.

The litigation below arose out of plaintiff/appellant’s boat being damaged. On January 24, 1974 the appellant filed suit against an individual doing business as a marina. Then, in November 1974 the complaint was amended to bring in Matanzas Marine Corporation and the appellee as additional parties defendant.

Appellee was served with process on April 28, 1976. In May of 1976 appellee— by his own admission — learned that a default had been entered against him. (The official entry of the default was on May 19, 1976.)

On June 21, 1976 the interlocutory default was reduced to a final money judgment against appellee.

In August 1976 the appellant took out two separate writs of garnishment seeking to attach a bank account of the appellee and a payment on a mortgage debt owed to appellee. The writ directed to the bank account resulted in a final garnishment judgment on September 14, 1976 to the extent of the funds of appellee in the bank account; the other writ — involving the periodic mortgage payment then due from Matanzas Marine Corporation to appellee— resulted in a final garnishment judgment entered on October 4, 1976 for the mortgage payment then due. The appellee was aware of both garnishment actions.

On October 1, 1976 the appellant filed a separate action in the nature of a Creditor’s Bill naming appellee and Matanzas Marine Corporation as parties defendant. Appellant sought to reach the entire mortgage indebtedness owed by Matanzas Marine Corporation to the appellee insofar as required to satisfy the appellant’s original money judgment against the appellee.

It was in response to this complaint that the appellee finally filed an answer and a further pleading entitled “Motion for Relief from Judgment and a Stay of Post-Judgment Proceedings.” Appellee filed these documents on November 8, 1976. An identical motion was filed in the original action.

Insofar as pertinent, appellee’s Motion for Relief from Judgment and a Stay of Post-Judgment Proceedings alleged the following:

4. That [in the month of May] [appellee] contacted the office of [a named law firm] and requested that the said law firm represent the [appellee] in defending the case which responsibility the said law firm agreed to undertake.
5. . sometime during the month of May, 1976 [appellee] learned that a default judgment had been entered against him and thereafter wrote a letter to the attorney for the [appellant] [named] expressing his concern
7. During the pendency of the lawsuit [appellee] was outside the Lee County area and at times outside the State of Florida and had assumed that the law firm previously referred to which he had retained to represent him had done so and that this matter was being handled in a proper and timely manner.
8. That all of the developments that occurred pertaining to the progress of the lawsuit were the result of [appel-lee’s] dependence on other parties to represent him and his failure to properly enter a defense was due to excusable neglect and surprise on the part of the [appellee].

Fla.R.Civ.P. 1.540(b) provides in relevant part:

On motion and upon such terms as are just, the court may relieve a party . from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; . .
The motion shall be made within a reasonable time, and . . . not more than one year after the judgment, decree, order or proceeding was entered or taken.

Florida courts have been distinguished by their “long standing policy of liberality toward the vacating of defaults.” North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962). There, a complaint in malpractice and negligence was served on the president of a hospital. He turned it over to the administrative offices of the hospital for transmission to the insurance carrier. Through inadvertence the administrative office misplaced the complaint. As a result, the complaint was not transmitted to the insurance carrier. The complaint had been filed on February 10, 1960; the default was entered on March 10, 1960. The interlocutory default was not reduced to final judgment before the defendant’s motion to vacate was filed on March 15, 1960. The trial court set aside the default.

The supreme court held that under those circumstances a showing of gross abuse of discretion was necessary for reversal at the appellate level. The court cited the case of State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40, 43 (1931) for the proposition that:

if there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.

See Igleheart v. Jayne, 338 So.2d 81 (Fla.4th DCA 1976) (dissenting opinion). The Third District Court of Appeal decided two cases in 1976 which follow the Barber rule. In Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla.3d DCA 1976) the court vacated a default on facts much similar to those in Barber. In Imperatori, the secretary to a hospital administrator had misfiled the summons and complaint in a “terminated case” file instead of in the “pending ease” file. The court held that the misfiling constituted excusable neglect on the authority of Barber.

Excusable neglect was also found to lie in Flaxman v. Metropolitan Life Insurance Company, 340 So.2d 515 (Fla.3d DCA 1976). In that case, the court found that the defendant — who had lost the summons and complaint — had amply demonstrated excusable neglect in his affidavit. Furthermore, the court found that plaintiff’s attorney had not disclosed the filing of a suit to the defendant even though he was actively in contact with the defendant relative to the claim after the suit had been filed. These “equitable considerations” argued for af-firmance of the lower court’s action in vacating the default.

The Fourth District Court of Appeal vacated a default due to excusable neglect in Travelers Insurance Company v. Bryson, 341 So.2d 1013 (Fla.4th DCA 1977). There, an answer was filed on the same day the default hearing was held. Counsel for the defense was absent from the hearing because the day of the hearing had not been properly noted on his calendar. The court found this to be excusable neglect and vacated the default in keeping with the “liberal policy.” Another reason for the court’s liberality in this case was that the period of time which had elapsed from the filing of suit to the default (the suit was filed on January 7, and the default entered on March 5th) “was not an extended period, and the end to be accomplished by [Fla.R. Civ.P. 1.500] would . . . not be frustrated or defeated ... by vacating the default.” 341 So.2d at 1015.

Most recently, the supreme court held that the circuit court had not abused its discretion in vacating a default in view of the defendant’s “diligence in moving to vacate the default.” Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977).

We adhere to the “liberal approach” established and clarified by the above authority. See Chamberlin v. Mid-Century Insurance Company, et al., 350 So.2d 364 (Opinion filed October 5, 1977); Smith v. Rutland, 341 So.2d 283 (Fla.2d DCA 1977). Under the circumstances of the instant case, however, we hold that the motion to vacate was not “made within a reasonable time” (albeit within the maximum authorized period of one year) and that the appellee was guilty of gross neglect. Where a party, as here, admits to notice of default in May, the subsequent entry of a final judgment against him, two separate garnishment judgments and the institution of a separate creditor’s complaint before he initiates a response he does not justify the delay or show “excusable neglect.”

The order of the trial court setting aside the judgment is reversed and the original final default judgment is hereby reinstated.

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


author: DOWNEY, Judge.

text:
    James Arthur EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 75-549.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

The sole question involved in this appeal is the failure of the trial court to track the Standard Jury Instruction 2.11(b) on reasonable doubt.

This case was tried in February 1975 before adoption of Florida Standard Jury Instructions, Second Edition, effective February 4, 1976. The Second Edition contains a revised instruction on reasonable doubt, eliminating several paragraphs contained in original instruction No. 2.11(b). In any event, the instruction given by the trial court substantially covers the subject matter contained in Standard Jury Instruction No. 2.12(b) on reasonable doubt. Accordingly, any error in failing to follow the Standard Jury Instruction as promulgated is harmless. Leverette v. State, 295 So.2d 372 (Fla. 1st DCA 1974).

Lest this conclusion be seen as license to depart from the Standard Jury Instructions as promulgated without good reason, we point to the decision of the Supreme Court of Florida in State v. Bryan, 287 So.2d 73 (Fla.1973), which sets out the proper approach to the Standard Jury Instructions.

Accordingly, the judgment and sentence appealed from is affirmed.

AFFIRMED.

ANSTEAD and LETTS, JJ., concur.


text:
    Rudolph GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 76-232.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.

      Richard L. Jorandby, Public Defender, and Richard S. Power, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was initially charged in Count I of the information with involuntary sexual battery by using a deadly weapon or actual physical force likely to cause serious personal injury, a life felony. Immediately before trial, the State filed an amended information charging appellant in Count I with involuntary sexual battery by threatening to use force likely to cause serious personal injury, a first degree felony.

Although the State contends on appeal that the amended information did not reduce the charge from a life felony to a felony of the first degree, the trial transcript belies that contention. The prosecutor stated without equivocation that the amended information charged appellant with a first degree felony. We agree with the prosecutor. Therefore, the court was in error in sentencing appellant to forty-six years, two hundred and sixty-five days imprisonment on Count I. The maximum sentence allowable for Count I as amended, a first degree felony, is thirty years.

We have carefully examined all of appellant’s other points and find no reversible error involved therein.

Accordingly, the sentence appealed from is modified so as to reduce the sentence on Count I to thirty years. In all other respects the judgment and sentence appealed from are affirmed.

AFFIRMED AS MODIFIED.

ALDERMAN, C. J., DOWNEY, J., and PARHAM, HARRY C., Associate Judge, concur.


author: DOWNEY, Judge. DAUKSCH, Judge,

text:
    Keith F. ISAACS, Appellant, v. STATE of Florida, Appellee.
    No. 76-897.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Anthony J. Golden, Robert L. Bogen, Asst. Attys. Gen., and Charles A. Stampelos, Legal Intern, West Palm Beach, for appellee.
   DOWNEY, Judge.

Only one of the three points appellant poses for our consideration has merit. In that point appellant contends that the order, under review, which placed him on probation for a period of seven years, is not authorized by law. Since the offense to which appellant entered his negotiated plea was a third degree felony breaking and entering, the maximum probationary period allowable by law is five years. See, e. g., Holmes v. State, 343 So.2d 632 (Fla.4th DCA 1977).

Although it has no merit, the point which concerns several conditions of probation imposed by the trial court warrants discussion. Appellant contends that the following conditions are unreasonable: a) appellant must have no contact with Bruce Arnold, Michael Smith, Billy Arnold, or Howard Isaacs (appellant’s brother); b) the court retains custody over the person of the appellant and authorizes any probation supervisor and any law enforcement officer to search, at any time, the appellant and all vehicles and premises concerning which he has legal standing to give consent to the search; and c) appellant must submit to physical or chemical examinations upon the request of any probation supervisor or law enforcement officer to determine systemic presence of controlled substances or unlawfully acquired drugs. We reject appellant’s contention and approve those conditions of probation. Steve v. Heath, 343 So.2d 13 (Fla.1977); Pace v. State, 350 So.2d 1075 (Fla.4th DCA 1977), Case No. 76-2010.

For the foregoing reasons the order under review is modified to reflect a probationary period of five years; in all other respects it is affirmed.

AFFIRMED as modified.

LETTS, J., concurs.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

As I predicted in Pace v. State, 350 So.2d 1075 (Fla.4th DCA, Case No. 76-2210, Opinion filed June 24, 1977, see also dissent upon denial of rehearing, Opinion filed October 11, 1977), a very insidious, to me, trend was developing. Under Pace, supra, the probationer was required to submit to search, with or without probable cause or even suspicion, by any law enforcement officer at any time.

Now the standard is that the probationer must submit himself or herself to physical or chemical examination at anytime by any law enforcement officer.

I feel it unnecessary to reiterate but reaffirm my convictions stated in Pace, supra.


text:
    Nelson Roy MULLIGAN a/k/a John Nelson Mulligan, Appellant, v. Beverly MULLIGAN a/k/a Beverly Evans, Appellee.
    No. 76-1156.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.
    Larry Klein, West Palm Beach, and Foley, Colton & Butler, West Palm Beach, for appellant.
    T. Jack Hawkins, Lake Worth, for appel-lee.
   PER CURIAM.

The appellant is challenging a judgment in favor of his former wife, the appellee, for amounts due for past support, alimony, educational expenses, and medical expenses. The judgment was for $85,-000.00, and the appellant has failed to demonstrate a lack of evidence in the record to support the award. The appellant also claims error by the trial court in failing to set out in the judgment the amounts due for each category claimed by the appellee. We agree that it would be helpful to this court in reviewing the matter if this had been done, but there is no legal requirement that the trial court make such specific findings. Accordingly, the judgment is affirmed.

DOWNEY, ANSTEAD and MOORE, JJ., concur.


author: ALDERMAN, Chief Judge.

text:
    Johnny Lee SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1377.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.

      Richard L. Jorandby, Public Defender, and James L. Eisenberg, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

The defendant, having been convicted of burglary, appeals the term and condition of his sentence.

The defendant’s first point has merit and requires a modification of his sentence. He received five years imprisonment to be followed by twelve years probation. The maximum sentence that could have been imposed was fifteen years. The sentence, being excessive by two years, is hereby modified by eliminating the last two years of the probationary period. Sherman v. State, 344 So.2d 870 (Fla. 4th DCA 1977).

The defendant’s second point challenges the validity of the condition of his probation which provides:

9) SEARCH: The court retains custody over the person of the probationer and authorizes any probation supervisor and any law enforcement officer to search, at any time, the probationer and all vehicles and premises concerning which he has legal standing to give consent to search.

We have recently ruled on the identical issue in Pace v. State, 350 So.2d 1075 (Fla. 4th DCA opinion on petition for rehearing filed October 11, 1977). On authority of and for the reasons set out in Pace, we approve the condition of probation involved in this appeal.

AFFIRMED as modified.

DOWNEY and ANSTEAD, JJ., concur.


text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY and Dora P. Bernstein, Appellants, v. LAUDERDALE RENT-A-CAR, INC., and Chicago Insurance Company, Appellees.
    No. 76-1611.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.

      Stephen W. Bazinsky of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellants.
    Gilbert E. Theissen and Gerald M. Walsh of Gerald M. Walsh & Associates, P.A., Fort Lauderdale, for appellees.
   KANEY, FRANK N., Associate Judge.

This is an appeal by an insurance carrier from a trial judge’s decision determining responsibility for the payment of damages to an accident victim. The victim was struck by an automobile driven by Appellant, Dora P. Bernstein, who had a policy of insurance with the Appellant, Hartford Accident and Indemnity Company. The vehicle had been leased from the Appellee, Lauderdale Rent-A-Car, Inc., which had a policy of insurance with the Appellee, Chicago Insurance Company.

The victim sued Dora P. Bernstein as operator of the vehicle, Lauderdale Rent-A-Car, Inc. as owner of the car and their insurance carriers. Pursuant to a stipulated agreement, the Defendants agreed to a reasonable settlement of the victim’s claim and, by cross-claims, present the question of insurance coverage to the trial judge.

The accident which triggered this cause took place on August 5, 1973. Dora P. Bernstein had been insured with the Hartford for a number of years. In 1971, she sold her car and began a series of one year leases with Lauderdale. In February of 1973 she bought the policy of insurance in question. It was for a one year term and it named a 1973 Chevrolet as her car. On August 1, she turned in the Chevrolet and leased a 1973 Buick for a one month period. She did not notify the Hartford. Five days later the accident occurred.

The trial judge entered a finding that the Hartford insured Mrs. Bernstein in her 1973 Buick on the day of the accident, and directing that the Hartford reimburse Chicago Insurance Company for its half of the settlement payment plus its costs in this cause.

Following testimony being taken, the trial court made findings of fact which included the findings that Bernstein’s 1973 Buick was an owned vehicle and that Lauderdale Rent-A-Car, Inc., was a named insured under the Hartford policy.

The law is well settled that an appellate court cannot place itself in the shoes of the trier of fact, if there is competent and substantial evidence which accords with logic and reason before the trier to sustain its verdict. Glass v. Parrish, 51 So.2d 717 (Fla.1951), and State Farm Fire & Casualty Co. v. Hicke, 184 So.2d 685 (Fla. 2d DCA 1966).

Appellants’ reliance on Roth v. Old Republic Insurance Co., 269 So.2d 3 (Fla.1972), is misplaced. This case is factually distinguishable from Roth. In Roth the lessee paid the lessor for insurance. Here, Bernstein was required to procure her own insurance.

Similarly, the recent decision by our Supreme Court in Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977, Opinion filed May 12,1977), is distinguishable on its facts from this case. In that case the Supreme Court was dealing with claims for excess over the basic coverage provided the lessor by the contract. In the instant case the $37,500 claimed was within the $100,000 limits set by the Hartford policy.

We have carefully considered the Appellants’ other contentions and have determined that they are without merit. Therefore the Final Judgment entered in the court below is AFFIRMED.

ALDERMAN, C. J., and DAUKSCH, J., concur.


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    Giesela FRANK, Appellant, v. CAMPBELL PROPERTY MANAGEMENT, INC., and Medical Arts Gardens, Inc., Appellees.
    No. 76-2117.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.
    Paul H. Bass of Krongold & Bass, Miami, for appellant.
    Pomeroy, Betts & Wiederhold, Fort Lauderdale, and Joe N. Unger, Miami, for appellee-Campbell Property Management, Inc.
    Peter A. Miller of Preddy, Haddad, Kut-ner, Hardy & Josephs, Miami, for appellee-Medical Arts Gardens, Inc.
   DOWNEY, Judge.

The sole question presented on this appeal is whether the defense of res judicata which does not appear on the face of the complaint can be raised by motion to dismiss. The answer is unequivocally that it cannot.

Appellant sued appellee corporations for malicious prosecution, basing the suit on the allegedly improper acts of William B. Campbell, agent of the appellee corporations. Appellees moved to dismiss the complaint on several grounds, one of which was that the plaintiff’s claim was res judicata because the plaintiff had previously suffered an adverse judgment in a suit against William B. Campbell. Attached to the motion was the order of the Circuit Court dismissing with prejudice the action against William B. Campbell. The complaint is devoid of any reference to the prior litigation. Nevertheless, the trial court dismissed this action on the grounds of res judicata.

On a motion to dismiss a complaint the court must look solely to the allegations of the complaint. Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So.2d 857 (Fla.2d DCA 1975); Trawick’s Florida Practice and Procedure, § 10.4 (1975). If the face of the complaint contains allegations which demonstrate the existence of an affirmative defense then such defense can be considered on motion to dismiss. Fla.R.Civ.P. 1.110(d). Otherwise an affirmative defense may not be considered on motion to dismiss a complaint. Temples v. Florida Industrial Construction Co., Inc., 310 So.2d 326 (Fla.2d DCA 1975).

Two cases have been called to our attention which upheld the granting of a motion to dismiss a complaint on the grounds of res judicata. Hinchee v. Fisher, 93 So.2d 351 (Fla.1957), and Warriner v. American Nat. Bank & T. Co. of Chicago, 313 So.2d 81 (Fla.3d DCA 1975). However, it is impossible to tell whether the complaints in those cases contained allegations which justified consideration of the affirmative defense of res judicata on motion to dismiss. In any event, the question of the propriety of raising that defense was never alluded to. We feel confident that if the defense did not appear on the face of the complaints in those cases those courts would have followed the long standing rule precluding consideration of such defense on a motion to dismiss.

In the instant case appellees contend that even if technically the defense of res judica-ta was not ripe for decision on the motion to dismiss, the parties argued the prior litigation and the trial judge was fully aware of it. Appellees argue there is no question here that based upon all the cited authority this case is in law and fact res judicata. So let us be done with this case! The argument is inviting, but expedition at the expense of the rules is insidious. The next expediter along would use this case as prec-edential authority for the same short cut. In addition, appellant did not consent to the disposition of the motion on the basis of the validity of the affirmative defense. Appellant twice urged the trial court that the appellees’ argument was premature and improper. Finally, we do not know what the trial court may find when the entire record of the prior litigation is presented to him in support of the affirmative defense.

Accordingly, we choose to stand by Rule 1.110(d) and require the presentation of affirmative defenses as provided therein.

REVERSED and REMANDED for further proceedings.

DAUKSCH and MOORE, JJ., concur.


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    John Wesley JONES and Gertrude May Jones, his wife, title holders of Parcel Number 134, Appellants, v. DIVISION OF ADMINISTRATION, State of Florida DEPARTMENT OF TRANSPORTATION and Arrow Construction Corp., et al., Appellees.
    No. 77-133.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.

      Jerald C. Cantor of Meyer, Leben, Fixel & Cantor, Hollywood, for appellants.
    H. Reynolds Sampson, Gen. Counsel, and Alan E. DeSerio, Atty., Tallahassee, for ap-pellee-State of Florida Dept, of Transp.
   ALDERMAN, Chief Judge.

In this eminent domain action the defendant-landowner appeals from the trial court’s order granting the State’s motion for new trial. We conclude that the ground upon which the motion was granted is legally insufficient, and we reverse.

During the trial both sides presented expert witnesses, who testified as to the value of the property to be taken and the amount of severance damages. The first witness was the landowner’s expert. He began to testify, but before he reached the question of damages, the landowner’s attorney noticed that the State’s expert was sitting in the courtroom. At that point the landowner’s attorney “invoked the rule” and the judge ordered all witnesses to remain outside the courtroom and not discuss any testimony.

The new trial was granted on the following ground:

The Court erred in granting the Motion by the Defendant to invoke the “Rule” to exclude witnesses from the Courtroom after the Jury was sworn, and subsequent to the Defendant’s expert witness beginning testimony, over the objection of the Plaintiff, to the prejudice of the State in the presentation of the case.

The motion for new trial was based on the theory that sending the State’s expert from the courtroom after the landowner’s expert had begun to testify gave the jury the impression that the State’s expert was doing something wrong, thus damaging his credibility.

The trial court’s initial decision to invoke the rule was not an abuse of judicial discretion. Although the preferred time to request the exclusion of witnesses is before any witness has testified, the benefit of sequestration (as an aid in detecting inconsistencies and fabrications) is too great to automatically deny exclusion simply because the request is made after commencement of testimony at the trial. Derrickson v. State, 321 A.2d 497 (Del.1974); 6 Wigmore on Evidence § 1840 (3d Ed.). There is no legal basis to conclude that sequestration of the witnesses in this case had a prejudicial effect on the minds of the jurors. The possible psychological effect of a correct procedural ruling is not a sufficient ground for a new trial.

Reversed and remanded with directions that judgment be entered for the landowners pursuant to the jury’s verdict.

REVERSED and REMANDED with directions.

DOWNEY and LETTS, JJ., concur.


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    Joseph DAWSON and Utica Mutual Insurance Company, Appellants, v. Linda SCHEBEN, John H. Quinn, John H. Glenn, Henri Landwrith and Wallace Schoetielkotle, d/b/a Holiday Inn of Altamonte Springs, Florida, and Home Insurance Company, etc., Appellees.
    Nos. 77-561, 77-562.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.
    C. Chobee Ebbets of Gosney, Cameron & Parsons, Orlando, for appellants.
    Nolan Carter, Orlando, for appellee-Sche-ben.
    Duncan B. Dowling, III, of Rogers & Dowling, Orlando, for appellees-Quinn et al.
   ALDERMAN, Chief Judge.

These consolidated interlocutory appeals involve two orders of the trial court in a negligence case. Linda Scheben, the plaintiff, alleged that Joseph Dawson injured her by falling on her when he became involved in an altercation with an unidentified man in the lobby of a Holiday Inn. Dawson filed a third party complaint seeking contribution from the Holiday Inn.

One of the orders appealed from granted 'summary judgment to the plaintiff, Sche-ben, on the issue of liability, leaving only the question of damages to be settled by jury trial. The other order granted summary judgment for the third party defendants on Dawson’s claim for contribution. We reverse both orders. The record shows that factual issues exist which preclude summary judgments. City of Orlando v. Ashlock, 342 So.2d 1002 (Fla. 4th DCA 1977). Additionally, different inferences might be drawn even from some of the undisputed facts. Cincinnati Insurance Co. v. Schneider, 349 So.2d 728 (Fla. 4th DCA, opinion filed August 23, 1977).

REVERSED and REMANDED.

DOWNEY and LETTS, JJ., concur.


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    Thomas BREAMFIELD, Relator, v. The Hon. D. C. SMITH, Circuit Judge, Nineteenth Judicial Circuit of Florida, St. Lucie County, Florida, Respondent.
    No. 77-1496.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.
    Thomas Breamfield, in pro. per.
    Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Subsequent to the receipt of the response of the respondent herein this court received a certified copy of an Order of the Circuit Court in St. Lucie County Case No. 2851, State of Florida v. Thomas Breamfield, in which the court ruled upon petitioner’s motion for post conviction relief, filed pursuant to Fla.R.Crim.P. 3.850. The entry of said Order is the relief which the petitioner sought by virtue of this petition for writ of mandamus, thus rendering this proceeding moot.

Accordingly, the petition for peremptory writ of mandamus is DENIED.

DOWNEY, LETTS and MOORE, JJ., concur.


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    Robert G. FERSLEW and Phyliss Ferslew, Appellants, v. Anna RELAFORD, Appellee.
    No. DD-365.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1977.
    Rehearing Denied Nov. 18, 1977.

      Brent W. Turbow and Arthur T. Boone, Jacksonville, for appellants.
    Ellis E. Neder, Jr., Jacksonville, for ap-pellee.
   PER CURIAM.

Appellants appeal the lower court’s order of remittitur, following the entry of a verdict in their favor for damages resulting from appellee’s refusal to renew their lease; appellee appeals the denial of her motion for directed verdict. As to appellant’s claim, having considered the record we determine no abuse of discretion has been shown. E. g., Brewer v. Sun Ray Drug Company of Fla., 105 So.2d 369 (Fla. 2nd DCA 1958); Price v. Jordan, 115 So.2d 444 (Fla. 2nd DCA 1959).

As to appellee’s cross-appeal, we also find no reversible error. We will, however, address two points raised by appellee. She first urges the lower court erred in denying her motion for directed verdict on the ground appellants failed to show at the time they exercised their option to renew the lease they had not defaulted under any of the terms of the lease, alleging that appellants, had not shown they maintained insurance on the premises or paid any excess ad valorem taxes, as required by the lease. Nevertheless, appellee failed to complain of any of the alleged defaults within a reasonable time. “It is a well recognized principle in the law of contracts that the strict performance of the contract may be waived, . . . .” Livingston v. Malever, 103 Fla. 200, 137 So. 113, 116 (1931).

Appellee additionally complains the trial court erred in denying her motion for directed verdict since appellants did not provide her with written notice of their intention to exercise their option to renew as required by Paragraph 17 of the lease. The record shows that such written notice would have been useless since appellee had already indicated she would not allow renewal. Where one party to an executory contract informs the other, before the time for consummation arrives, he will not perform his part of the contract, it is unnecessary for the other party to take further action. Behrman v. Max, 102 Fla. 1094, 137 So. 120 (1931).

AFFIRMED.

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


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    Irving E. DUNN and Thomas C. Johnson, Appellants, v. James R. MITCHELL et al., Appellees.
    Nos. 76-1223 and 76-1314.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.
    Rehearing Denied Nov. 18, 1977.

      Horton, Perse & Ginsberg and Edward A. Perse, Adams, George, Lee & Schulte, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and James D. Little and Stephen N. Zack, Miami, Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellees.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957); Bernard Marko and Associates, Inc., 230 So.2d 42, 44 (Fla.3d DCA 1970).


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    Thomas FIERSTOS, Appellant, v. Walter S. CULLUM, Joan C. Cullum, his wife, and the Continental Insurance Co., Appellees.
    No. 77-42.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1977.
    Rehearing Denied Nov. 18, 1977.
    Ronald H. Schnell, of Carr & Schnell, St. Petersburg, for appellant.
    Mark E. Hungate and James B. Thompson, of Fowler, White, Gillen, Boggs, Villa-real & Banker, St. Petersburg, for appel-lees.
   OTT, Judge.

This was a negligence action by a tenant against his landlord arising out of the alleged failure of the landlord to exercise reasonable care in the maintenance and repair of a common stairway.

The case went to the jury on instructions as to the standard of care, comparative negligence and special verdict that were most favorable to the defendant.

The jury returned its special verdict finding the landlord solely negligent and awarding the tenant $7,000 in damages.

Upon the landlord’s motion the trial court entered judgment for the landlord, notwithstanding the jury verdict.

The evidence in the case was in direct-conflict. Plaintiff/appellant testified that he had fallen while descending an interior stairway in the apartment building in which he lived; that he caught his foot on a loose antenna wire — black in color — which ran just under the lip of a step; that the stairway was reasonably dark because the only light in the vicinity was blocked by a protruding porch; that he had previously noted the loose wire, reattached it under the stair lip, informed the landlord thereof and requested that he correct the condition.

The landlord, on the other hand, testified that he inspected the premises daily and had never seen any such wire; flatly denied that the appellant had ever complained about any loose wire running across the stairway or requested any repair.

There was competent evidence before the jury which it was their prerogative to believe. Credibility of the witnesses, the weight to be given the evidence and whether the actions of the parties were reasonable were all distinctly within the province of the jury. Under the circumstances the trial court erred in substituting its judgment for that of the jury. See Rosenfelder v. Huttoe, 66 So.2d 226 (Fla.1953); Dixon v. Thompson, 217 So.2d 887 (Fla. 1st DCA 1969).

We therefore reverse the trial court, order the judgment set aside and direct that judgment be entered on the jury verdict. Having so determined it is unnecessary to consider the remaining point on this appeal.

Reversed and Remanded.

McNULTY, Acting C. J., and RYDER, J., concur.


author: RYDER, Judge.

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    CRUISING WORLD, INC., a Florida Corporation, Appellant, v. Fred W. WESTERMEYER, d/b/a Sunset Marine and John R. Munz and Mab Wreford, Appellees.
    No. 77-276.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1977.
    Rehearing Denied Nov. 10, 1977.

      Donald Wm. Giffin, St. Petersburg and J. Hardin Peterson, Jr. of Peterson, Myers, Curtis, Craig & Crews, Lakeland, for appellant.
    P. Wallace Pope, Jr. of Johnson, Blakely, Pope & Bokor, P. A., Clearwater, for appel-lee Westermeyer.
   RYDER, Judge.

John R. Munz and Mab Wreford own all the stock in Master Marine, Inc., and that corporation’s major asset is certain waterfront real property utilized as a marina in Pinellas County. Munz is also the president of Master Marine, Inc.

Fred W. Westermeyer, d/b/a Sunset Marine, is in the business of building and repairing boats.

Early in 1972, Master Marine, acting through Munz, and Westermeyer entered into an oral lease of the waterfront marina property owned by Master Marine, Inc. On July 2, 1973 Master Marine, Inc. as lessor and Westermeyer, d/b/a Sunset Marine, as lessee entered into a four year written lease of the same property. Paragraph 11 of that lease states, in part, that, “. Lessee [Westermeyer] shall have an option during the term of this lease to purchase the property at the same terms and conditions as offered by any bona fide purchaser, and . . . Lessor [Master Marine] shall give the Lessee ten (10) days in which to accept or refuse the terms offered by said bona fide purchaser. . . . ”

The real estate owned by Master Marine is adjacent to that owned by Cruising World, Inc. Early in 1976, Cruising World, first through a real estate salesman and then through its attorney, approached Munz regarding the possible purchase by Cruising World of the Master Marine marina property. During these discussions, Cruising World was informed by Westermeyer that his lease with Master Marine contained either a right of first refusal or an option to purchase the property. Cruising World’s first offer for purchasing the property was rejected by Master Marine as too low in price, but the negotiations continued until Cruising World and Munz agreed upon a sale price of $220,000.00 for the real estate. Munz, thereafter, retained an attorney to review a written option proposed by Cruising World. Counsel advised Munz to restructure the sale of the real estate to a sale of all the stock in Master Marine in order to achieve federal tax benefits. Until that time, Cruising World had never expressed an interest in buying the stock of the corporation.

On July 9, 1976, Munz and Wreford individually entered into a written option granting Cruising World the right to purchase all the stock of Master Marine. Cruising World, Inc. tendered the sum of $10,000.00 to the attorney for Munz and Wreford. On July 13, 1976, Master Marine notified Westermeyer that it had granted an option to Cruising World to purchase all the stock subject to the rights of Wester-meyer under Paragraph 11 of the lease. Westermeyer then on August 17, 1976 delivered to Munz’s counsel a purchase option identical in substance to the Cruising World option, and made demand upon Munz and Wreford to return the deposit of the other party.

Munz and Wreford filed an interpleader complaint in the Circuit Court for Pinellas County, Cruising World and Westermeyer filed their answers to said complaint and filed cross-claims against each other, and answers and Westermeyer filed a counterclaim against Munz and Wreford.

The trial court entered final judgment denying Westermeyer’s counterclaim for reformation of his lease with Master Marine; denying the cross-claim of Cruising World, Inc. against Westermeyer; and finding that appellee Westermeyer is protected by the option and right of first refusal contained in the July 2, 1973 lease and, further, finding that the option executed by Westermeyer on August 17,1976 is superior to the option of July 9, 1976 among Cruising World, Munz and Wreford; that Cruising World has no rights under the option of July 9,1976; and accordingly entered judgment in favor of the appellee Westermeyer and against appellant Cruising World. Cruising World appeals and Westermeyer cross appeals as to other questions.

We reverse in part and affirm in part.

Shares of stock are personal property. And, it is now well settled that shares are personalty, even where the property of a corporation consists wholly or chiefly of real estate. 11 Fletcher, Corporations § 5096 (1971 rev. ed.).

The Florida Supreme Court in Damico v. State, 153 Fla. 850, 16 So.2d 43 (1944), stated through Justice Chapman in a concurring opinion, “a share of stock represents a proportionate or aliquot interest in the property of the corporation, but does not vest the owner thereof with any legal right or title to any of the property, his interest in the corporate property being equitable or of a beneficial nature. The sale or transfer of stock of the corporation does not reduce or impair the corporate assets.” 16 So.2d at 45.

The Court of Civil Appeals of Texas considered almost the exact question as the instant case in McClory v. Schneider, 51 S.W.2d 738 (Tex.Civ.App.1932) and stated in a particularly well written opinion:

“The appellee contends that a purchase of all the capital stock is tantamount to a purchase of the properties and assets. If we could approve that condition, the error would be harmless, but we do not so understand the law. A transfer of stock of a corporation or a transfer of certificates of stock which only evidenced the stock, is held not to be a transfer of the property and assets of the corporation itself. The owner of a share of stock in a corporation owns no part of the capital, and is not the owner nor entitled to the possession of any definite portion of its property or assets. Hence, the purchaser of stock in a corporation does not purchase any portion of the corporation’s assets, nor is a sale of all the stock of a corporation a sale of the physical properties of the corporation.” 51 S.W.2d at 741.

This proposition has been upheld in Stockton v. Lucas, 482 F.2d 979 (Em.App. 1973).

However, the most convincing case arises out of the State of New York. There an action was brought by a tenant for specific performance of an option provision in a lease giving the tenant the right of first refusal in the event of a proposed sale of the premises by the corporate landlord, which was subsequently merged into another corporation and conveyed the leased premises to that corporation. In Torrey Delivery, Inc. v. Chautauqua Truck Sales and Service, Inc., 47 A.D.2d 279, 366 N.Y. S.2d 506, at page 510 (1975), the New York Court stated,

“It has long been the law in New York that a ‘corporation in respect of corporate property and rights is entirely distinct from the stockholders who are the ultimate or equitable owners of its assets; that even complete ownership of capital stock does not operate to transfer the title to corporate property; and that ownership of capital stock is by no means identical with or equivalent to ownership of corporate property’ . . . Ownership of capital stock being distinct from ownership of corporate property, it follows that the sale of such stock is not a sale of corporate property.”

Consequently, as the option to purchase the land between Westermeyer and Master Marine went directly to the land itself, said option did not extend to the sale of the corporation’s stock. Westermeyer, however, stands in the same shoes with Cruising World as he did with Master Marine insofar as his lease is concerned.

Therefore, insofar as the sale of the corporate stock is concerned, we do reverse and remand with directions to the trial court to enter judgment in accordance with this holding.

Further, insofar as the points raised by appellee Westermeyer on cross appeal, we find no demonstrable error and affirm the trial court.

McNULTY, Acting C. J., and OTT, J., concur.