author: PEARSON, Judge. PER CURIAM.

text:
    Malcolm K. SMITH and State Farm Fire and Casualty Company, Appellants, v. Leo J. ALLISON, Appellee.
    No. 75-703.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    On Rehearing May 26, 1976.

      Walton, Lantaff, Schroeder, Carson & Wahl and Wayne T. Gill, Miami, for appellants.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appel-lee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.)^ Associate Judge.
   PEARSON, Judge.

Defendants Malcolm Smith and State Farm Fire and Casualty Company appeal an $18,000 judgment entered against them upon a jury verdict in an action seeking recovery under Fla.Stat. Chapter 767 for damages suffered by plaintiff Leo Allison, who lost control of his motorcycle when defendant Smith’s dog ran into his path of travel on the roadway.

The principal point on appeal urges error upon the trial court’s denial of defendants’ motions for a directed verdict at the end of all the evidence. The plaintiff relies for affirmance on several cases interpreting Fla.Stat. § 767.01, the “Damage [Done] by Dogs” statute, which hold that a dogowner has an absolute liability for damage done by his dog. See Allstate Insurance Company v. Greenstein, Fla.App.1975, 308 So.2d 561. See also Romfh v. Berman, Fla.1951, 56 So.2d 127; Vandercar v. David, Fla.App.1957, 96 So.2d 227, 66 A.L.R.2d 912; Knapp v. Ball, Fla.App.1965, 175 So.2d 808; Brandeis v. Felcher, Fla.App.1968, 211 So.2d 606; English v. Seachord, Fla.App. 1971, 243 So.2d 193, cert. dis., Fla.1972, 259 So.2d 136; Rutland v. Biel, Fla.App.1973, 277 So.2d 807. The statute so construed makes the obligations and duties of dogowners virtually those of insurers with regard to injuries caused by dogs, whether by biting or otherwise.

There is no doubt that these cases authorize the imposition of the statutory liability on a dogowner in cases where the damage done by the dog, although not as a result of an attack, is the direct cause of injury. It can reasonably be argued, as plaintiff-ap-pellee does argue here, that reasoning by analogy the courts have interpreted Fla. Stat. § 767.01 to impose an absolute liability in every case where the actions of the dog are a factor in plaintiff’s ultimate injury. Nevertheless, there must be a limit to the rule of absolute liability. We hold that liability in the instant case transcends that limit.

The facts of this case viewed in the light of the jury’s finding are that the defendant has the custody of a small dog owned by his parents which escaped in some unknown manner from a fenced-in yard.

The plaintiff, when he was some distance away, observed the dog in the middle of the road. He testified that there was a car coming toward him, and upon his getting up to and through the intersection, “[a]ll of a sudden, [the dog] turned in front of me to run over to the other side. * * * [I moved] to the right. * * It was a sharp swing to the right. I guess I turned a little bit too far in avoiding him and I crashed.”

The Florida “Damage [Done] by Dogs” statutes is Chapter 767. Section 767.-01 thereunder, concerning “Owners responsible,” provides that “[o]wners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons.” This statute, passed in 1901, obviously has as its intent the protection. of an agrarian society. This court has recently approved the application of the statute to a case where the dog ran into a car, thereby causing an accident. See Allstate Ins. Co. v. Greenstein, Fla.App.1975, 308 So.2d 561. We view the application of the statute in the present case as improper in that the words “damage done by their dogs to sheep or other domestic animals or livestock, or to persons” does not include cases where the dog does not itself inflict any damage. Where, as in the present case, the damage results from some physical agency set into motion by a chain of events which may have been triggered by the presence of the dog, absolute liability should not be imposed. The occasional presence on the streets of an unattended dog is a danger to be reasonably anticipated by any motorist. It is entirely possible that a holding that a dog on the street subjects the owner to absolute liability for any action of a motorist in seeking to avoid the dog would stimulate a great deal of litigation in the future.

In Rutland v. Biel, Fla.App. 1973, 277 So.2d 807, the Court of Appeal, Second District, in reversing a partial summary judgment on the issue of liability in favor of the plaintiff, held:

“Appellant next contends, and we so hold, that F.S. § 767.01 F.S.A. is not applicable to a situation where the dog takes no affirmative or aggressive action toward the injured party. In all the cases we have reviewed under this statute, the dog has acted aggressively.”

The Supreme Court of Flordia in Seachord v. English, Fla.1972, 259 So.2d 136, approved the opinion of the District Court of Appeal, Fourth District, reported at 243 So.2d 193. The District Court opinion (243 So.2d 193, 195) contains the following language:

“In a dog injury case, it is no defense that a plaintiff acted unreasonably (was contributorily negligent), unless his behavior was so blatant as to supersede the dog’s behavior as the legal or proximate cause of plaintiff’s injuries. In view of F.S. §§ 767.01 and 767.04, F.S.A. making an owner of a dog virtually an in-insurer of the dog’s conduct, the conduct on the plaintiff’s part superseding the behavior of the dog would have'to be shown to be more than a mistake on the plaintiff’s part as to the intention of the dog to bite or attack him." [Emphasis added]

Accordingly, we hold that the absolute liability imposed by Fla.Stat. § 767.01 is inapplicable to the facts of this case and, therefore, we reverse the judgment appealed.

Additionally, we wish to point out that the element of “ownership” in the cited statute is of immense importance in an action such as this one. Because of the severe, potential consequences inherent in the statute, there is a clear burden on a plaintiff to show the defendant’s actual ownership of the dog in question, and not merely to show possession or custody. See Reid v. Nelson, 154 F.2d 724 (5th Cir. 1946), cert. den. 329 U.S. 716, 67 S.Ct. 47, 91 L.Ed. 621 (1946). From the record in the present case, we cannot say that the plaintiff has met his burden on this point.

Reversed.

ON REHEARING

PER CURIAM.

Appellee’s petition for rehearing urges that the judgment of the trial court should have been affirmed because the cause was submitted to the jury as a negligence case attendant upon violation of Section 5-6, Metropolitan Dade County Ordinance, which provides in pertinent part:

“(a) No person owning or having possession, charge, custody or control of any dog shall cause or permit or allow the dog to stray, run, be, go or in any other manner to be at large in or upon any public street, sidewalk or park or on private property of others without the express or implied consent of the owner of such private property. This section shall not apply to any dog or dogs when the dog is actually engaged in the sport of hunting in authorized areas and supervised by a competent person.”
* ‡ >ji ij<

We have granted the petition and have heard argument thereon. We adhere to our original opinion filed in this case and add thereto the following comments.

Appellant’s single point urged that the evidence was insufficient to sustain the verdict and judgment. Appellee, in his brief and upon oral argument, urged (1) the presumption of the correctness of the judgment, and urged (2) that motions for directed verdicts are not to he granted where there is conflict upon a material fact, (3) that the Florida “Damage [Done] by Dogs” statute (Fla.Stat. § 767.01) has been held to make dog owners virtually insurers with regard to injuries caused by a dog, and (4) that, assuming arguendo, Smith was not the owner of the dog, then the question of his negligence was a question for the jury.

Addressing ourselves to (4) above, the record before us shows only that Smith had custody of the dog, that the dog was regularly kept inside a fenced yard and that it somehow escaped on this occasion. The fact that the dog was upon the roadway does not justify an inference that Smith was negligent in causing, permitting, or allowing it to do so. The Dade County ordinance does not provide for absolute liability whenever a dog is on a roadway. The ordinance prescribes for liability only when a person permits the dog to run at large.

We adhere to our holding that this record does not support 'a finding of liability under the statute or upon the claim of negligence. Cf. Santanello v. Cooper, 106 Ariz. 262, 475 P.2d 246, 41 A.L.R.2d 881 (1970); and see the discussions at 41 A.L.R.3d 888 (1972) and at 59 A.L.R.2d 1328, 1343 (1958).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dorothea Chase TURNER, as Executrix of the Estate of William H. Turner, Jr., Deceased, Appellant, v. Marie MYERS, Appellee.
    No. 75-1601.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    William H. Turner III, Miami, for appellant.

      Karl Beckmeyer, Miami, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Dorothea Turner, executrix of the estate of William Turner, deceased, appeals an order granting the petition of claimant, Marie Myers, for extension of time for filing suit. Ms. Myers cross-appeals from that portion of the order denying her petition for compulsory payment of claims.

On June 6, 1974 Ms. Myers filed two claims against the Turner estate through her attorneys. On July 9 the attorney for the estate filed objections and served them by regular mail on Ms. Myers’ attorneys. Ms. Myers petitioned for compulsory payment of the claims on the ground that she was never served personally or by registered mail as required by § 733.18(2), Fla. Stat. and, therefore, the objections are deemed to have been abandoned. The petition was denied. Whereupon, Ms. Myers filed a motion for rehearing and a petition for extension of time for filing suit. The trial judge entered an order granting extension of time for filing suit and denying the motion for rehearing.

Dorothea Turner alleges the granting of the extension of time was error. We cannot agree.

The decision to grant or deny a petition for the extension of time for filing suit (pursuant to § 733.18(2), Fla.Stat.) is within the sound discretion of the probate judge and the record fails to reflect an abuse of that discretion. See Smoak v. Graham, Fla.1964, 167 So.2d 559; In re Estate of Sale, Fla.1969, 227 So.2d 199.

We also considered Ms. Myers’ cross-appeal and find that the issue she raises has been adversely determined by the holding In re Estate of Brugh, Fla.App.1975, 306 So.2d 599.

Affirmed.


text:
    INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. Gerard COQUEMARD, Appellee.
    No. 75-1401.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.

      Hawkesworth & Schmick, Miami, for appellant.
    Richard M. Gale, Charles Nackley, Jr., Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant insurer seeks review of a final judgment granting plaintiff’s petition to confirm an arbitration award.

While driving his mother-in-law to the airport, plaintiff, Gerard Coquemard’s car was struck from behind by another vehicle. Gerard wrote down the driver’s name, license tag number and asked him to remain at the scene of the accident until he returned from the airport. During the trip he lost the paper and upon returning to the accident scene, discovered the driver had left. He reported the accident to the police and filed a claim under the uninsured motorist provision of his liability policy issued by the appellant, Industrial Fire and Casualty Insurance Company. They were unable to agree to a settlement and pursuant to the terms of Gerard’s policy, the issues of liability and damages were submitted to arbitration. The arbitrators awarded Gerard $1,500. Industrial refused to pay and Gerard filed a petition to confirm the arbitration award. Industrial filed an application to vacate the award on the ground that there was no hit and run driver involved because it was Gerard’s mistake in losing the paper identifying the tort fea-sor and Industrial should not be made to suffer for Gerard’s mistake. After a hearing on the petition and application, the trial judge entered final judgment confirming the award. We affirm.

First, the issue of liability submitted at the request of Industrial was a matter properly subject to determination in arbitration. See Ebens v. State Farm Mutual Automobile Insurance Company, Fla.App.1973, 278 So.2d 674. Second, Industrial has failed to allege any of the grounds upon which an arbitration award may be vacated and is simply attempting to again litigate the merits of the controversy which it may not do. See § 682.13, Fla.Stat, F.S.A. and Bankers & Shippers Insurance Company v. Gonzales, Fla.App.1970, 234 So.2d 693 and cases cited therein.

Affirmed.


text:
    Manuel PENA, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1577.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.

      Stone, Sostchin & Koss, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant seeks reversal of a judgment of conviction based upon a jury verdict finding him guilty of unlawfully breaking and entering a dwelling house with intent to commit a felony therein, to wit: robbery; grand larceny; and, while unlawfully therein, assaulting persons lawfully therein.

It is appellant’s contention that the evidence was legally insufficient to sustain a conviction and that the trial court erred in denying appellant’s motion for judgment of acquittal and for a new trial.

We have carefully reviewed the record on appeal, considered the briefs and arguments of counsel and have concluded that there is sufficient competent evidence in the record to support the findings of guilt. The findings of the jury will not be disturbed on appeal in the absence of a clear showing that the evidence demonstrates that the findings are erroneous. No reversible error having been demonstrated the judgment appealed is affirmed. Hicks v. State, Fla.App.1962, 138 So.2d 101; Lee v. State, Fla.App.1963, 153 So.2d 351; Fisher v. State, Fla.App.1969, 224 So.2d 415.

Affirmed.


text:
    Peter J. MATHIS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1782.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    George Nicholas, and James K. Parker, Miami, for appellant.

      Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON1 and HENDRY, J J.
   PER CURIAM.

The defendant appeals a judgment finding him guilty of robbery after a jury trial and a sentence of ten years in the state prison. No transcript of the court proceedings is presented. On this record, the only matter that we are able to consider is appellant’s point claiming that: “The court proceedings were violative of the defendant’s sixth amendment rights as he was tried without counsel and therefore the defendant was not afforded his constitutional guarantee of a fair trial.” The matter of appellant’s alleged insolvency has been considered by this court on his motion for an order declaring him to be insolvent for the purpose of procuring an appellate record. Appellant’s motion in the trial court to be declared insolvent was denied after testimony revealed that he had, since being arrested for the crime, disposed of property valued at several thousand dollars by transferring it to relatives. In this court, upon the motion of the defendant, an order was entered requiring the State to respond to the defendant’s motion for an order declaring him to be insolvent. The State’s response consisted of a transcript of the proceedings with regard to insolvency. After reviewing the record and hearing oral argument thereon, this court denied the motion.

Immediately prior to oral argument in this court, the defendant, through his prior attorney, moved the court to consider the transcript which the State had furnished upon insolvency as a part of the record in this cause. This motion was granted.

It is apparent that the defendant has done little to meet the burden placed upon him to show that he was, in fact, insolvent. We, therefore, find that no error has been shown under appellant’s point on appeal. See City of Orlando v. Cameron, Fla.1972, 264 So.2d 421; Keur v. State, Fla.App.1963, 160 So.2d 546; and see Sapio v. State, Fla.App.1969, 223 So.2d 759.

Affirmed.

      . Defendant did file a bare bones affidavit of insolvency.


text:
    Harvey P. AMSTER et al., Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 75-1354.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.

      Turner & Shapiro, Miami, for appellants.
    Stuart Simon, County Atty., and Clifford A. Schulman, Asst. County Atty., for ap-pellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by owners of a tract of land from a judgment of the circuit court denying their petition for certiorari to review a decision of the County Commission of Dade County denying their application for a zoning boundary change.

At the time involved the County Commission was concerned with the problem of residential density of the area in which appellants’ tract was located. During a considerable period which elapsed between the filing of the petition for certiorari and the judgment of the circuit court thereon, a moratorium was in effect for a time, and an Area Study was made at the instance of the County, with regard to the subject of residential density.

In denying certiorari, the court did so “without prejudice to the filing by petitioners of a new zoning application notwithstanding any time limitations imposed on such a filing under presently existing County ordinances”. Preceding that holding there was reference in the judgment to the fact that zoning changes in the area had taken place subsequent to the time of the appellants’ application which the commission had denied. In that regard the court stated:

“In this cause, Petitioners’ application for an intensive zoning use was denied pending the outcome of the South-Dade Junior College Area Study. This Study is now completed and the Commission has considered and acted upon other applications for zoning changes in accordance therewith. It is now appropriate for Petitioners to file a new application for a zoning classification commensurate with the Study and now existing land uses in the area since the zoning character of the area has changed substantially since the initial application. Thus, the legislative zoning authority should now be permitted without restraint or direction to consider this application in light of the presently existing needs and zoning developments in the area concerned. This determination is one that is solely legislative in nature and a function that should not and cannot be assumed by the courts. Dade County v. McGeary, Fla.App.1974, 291 So.2d 28; Hillsborough County v. Ralston, Fla.App.1973, 284 So.2d 456.”

The appellants do not contend the judgment denying certiorari was error, but contend the judgment of the circuit court should have set forth guide lines and directions to the County Commission with respect to the action which it might take on a future application of the appellants for zoning boundary change as to the subject tract. We hold that contention is without merit. The ruling of the circuit court regarding that feature, as reflected in the above quoted portion of the judgment, was eminently correct.

The judgment is affirmed.


text:
    O. A. H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1327.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for ap-pellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, a 15-year-old child, was charged in a petition for delinquency with the following counts: (1) involuntary sexual battery, (2) breaking and entering with intent to commit involuntary sexual battery, (3) involuntary sexual battery, and (4) robbery. The prosecution filed a motion for waiver of juvenile jurisdiction and certification of the case for trial as if the child were an adult, as provided in § 39.-09(2) (a), Fla.Stat. The juvenile judge granted the motion and this appeal ensued.

The thrust of the appeal is that the juvenile court erred in waiving juvenile jurisdiction and certifying the case for trial as if the child were an adult because the order of waiver fails to specify the reasons for finding that the waiver of juvenile jurisdiction was in the best interest of the public, and because the witnesses at the waiver hearing established that there were reasonable prospects of rehabilitation of the juvenile. On consideration of those contentions of the appellant in the light of the record, briefs and arguments of counsel, we conclude that they are without merit.

The order of the juvenile court in pertinent part states:

. . (T)he Court having held a hearing in accordance with Rule 8.110(c) of the Rules of Juvenile Procedures, and Chapter 39 Florida Statutes and having heard the testimony of witnesses and having examined the child’s file and considered :
(1) The nature of the present offense and the extent and nature of the child’s prior delinquency records.
(2) The nature of past treatment efforts and the nature of the child’s response to past treatment efforts.
(3) The techniques, facilities and personnel available to the Court for rehabilitation.
(4) The testimony of a representative of the Metropolitan Dade County Department of Corrections and Rehabilitation concerning the present provisions within said department for the incarceration of juvenile offenders.
This Court being fully advised in the premises of the aforementioned Motion hereby finds that:
[The juvenile] is a child of fifteen (15) years of age or older. It is in the best interest of the public that juvenile jurisdiction be waived.
There is probable cause to believe that [the juvenile] did commit the crimes of two (2) counts of Sexual Battery, Breaking and Entering, and Strong Armed Robbery in the commission of a felony in violation of Florida Statutes 794.011(4), 810.01 and 813.011.
There do not exist reasonable prospects of rehabilitating [the juvenile] prior to his majority.
Metropolitan Dade County Department of Corrections and Rehabilitation operates the Dade County Jail and does not presently maintain a separate section for juvenile offenders.
Therefore, it is ORDERED AND ADJUDGED that:
The Motion for Waiver of Jurisdiction is hereby granted and this cause is transferred to the Circuit Court, Criminal Division of the Eleventh Judicial Circuit In and For Dade County, Florida.”

In our opinion, this order satisfies the due process requirements set out in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 and is in compliance with Rule 8.100(c), of the Florida Rules of Juvenile Procedure. Review of the record shows that there is ample evidence to support the conclusions of fact which are made in the order of transferral. In addition, the juvenile court complied in all respects with Rules 8.100(c) and 8.110(b), RJP, and we find no abuse of discretion in the decision to transfer the appellant to the criminal division for trial as an adult. Accord W. B. v. State, Fla.1975, 313 So.2d 711; see Davis v. State, Fla.1974, 297 So.2d 289.

Affirmed.


text:
    James DELON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1339.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Phillip A. Hubbart, Public Defender, and Karen Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., HAVER-FIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Langdon v. State, Fla App.1976, 330 So.2d 804.


text:
    J. Y., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1294.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, a 17-year-old child, was charged, in a petition for delinquency, with assault with intent to commit murder. He was tried in the juvenile court, adjudicated delinquent and sentenced to probation with the condition that he complete the Boys Town program.

This case stems from an incident which occurred when the victim who had been drinking beer with friends, placed two beer cans on the top of the appellant’s mother’s car as a joke in order to annoy her. The appellant arrived home, saw the cans, and an altercation ensued, resulting in fist-fighting and kicking. The fighting stopped and the appellant went into his house. When he came out a few minutes later, the fight resumed and the appellant stabbed the victim with a knife he obtained in the house, inflicting a serious wound.

In this appeal, the appellant contends that the trial court erred in denying his motion for new trial where the evidence as a matter of law established self defense. We do not agree.

The question of self defense is ordinarily one of fact to be determined by the trier of fact. Scholl v. State, 1927, 94 Fla. 1138, 115 So. 43; Turner v. State, Fla.App.1974, 298 So.2d 559. The findings of the trier of fact are presumed correct, and the appellate court will not sit as a second trier of fact. Hoover v. State, Fla.App.1968, 212 So.2d 95. In examining a record to determine if there is sufficient evidence to support the conclusion of the trier of fact, an appellate court need only find substantial, competent evidence to support the conclusion. Crum v. State, Fla.App.1965, 172 So.2d 24, 25. The adjudication of delinquency having arrived in this court with a presumption of correctness, all inferences to be drawn from the evidence are to be in favor of the adjudication of delinquency. Crum v. State, supra. Our review of the record demonstrates that there was competent substantial evidence to support the adjudication of delinquency.

Affirmed.


text:
    Bethina WASHINGTON, Appellant, v. The FIRST NATIONAL BANK OF MIAMI, an association organized under the laws of the United States, Appellee.
    No. 75-1189.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Feldman & Abramson and Jose Smith, Miami, for appellant.
    Dixon, Dixon, Lane & Mitchell, Friedman, Britton & Stettin and James T. Haley, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ-, and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant, co-signer, appeals a deficiency judgment for $2,638.62 in favor of The First National Bank of Miami entered after the sale of a repossessed automobile.

Bethina Washington, appellant, co-signed an installment sales contract with Claudette Washington when Claudette purchased a 1972 Chevrolet. The contract was assigned to The First National Bank of Miami and when Claudette defaulted on the payments, the Bank filed a complaint to recover the unpaid balance. A final default judgment was entered, but vacated when the judge ruled prior to the clerk’s entry of a default. After institution of the suit, the car was repossessed and sold by the Bank. Thereafter, the Bank filed a second amended complaint claiming money damages for a deficiency after the sale. Be-thina counterclaimed for abuse of process and violation of statutory created rights alleging that the Bank failed to give her notice of the repossession and sale of the automobile. The counterclaim was dismissed and the cause proceeded to non-jury trial. The judge entered final judgment in favor of the Bank in the sum of $2,638.62 principal and interest, $100 as court costs and $485 for a reasonable attorney’s fee.

Appellant contends that the court erred in entering the deficiency judgment because the Bank failed to give her notice of the intended sale of the repossessed automobile. We find this point well taken.

We hold that before a secured party can obtain a deficiency against a debtor or cosigner of an installment sales contract, the debtor must be given notice of what is about to occur. See § 679.9-504(3), Fla.Stat., F.S.A, and Turk v. St. Petersburg Bank and Trust Company, Fla.App.1973, 281 So.2d 534; Hepworth v. Orlando Bank & Trust Company, Fla.App.1975, 323 So.2d 41. The Bank failed to give the required notice of the sale to the appellant and although the bank was permitted by statute to dispose of the collateral (repossessed automobile) without judicial process or notice to the appellant, it was not entitled to a deficiency against the appellant who was not so notified. Appellant’s remaining two points have no merit.

Reversed.

      . “(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the ease of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or who is known by the secured party to have a security interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.”


text:
    Haim ZERWAL, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 75-1211.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.

      Grover, Ciment, Weinstein, & Stauber and Craig G. Goodman, Miami Beach, for appellant.
    Walton, Lantaff, Schroeder, Carson & Wahl and George W. Chesrow, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff, Haim Zerwal, appeals an adverse final judgment entered in favor of defendant, State Farm Mutual Automobile Insurance Company, in an action to recover for lost wages under the PIP provision of his insurance policy.

On October 24, 1973, Mr. Zerwal sustained injuries when the car he was driving collided with a bicycle. He remained home from work through December 24 and upon his physician’s advice, returned to work on December 26. On February 13, 1974 Mr. Zerwal’s application to the Social Security Administration for permanent disability benefits was approved and on the same day he terminated his employment. In the meantime State Farm, pursuant to the PIP provision of Mr. Zerwal’s policy, paid him $2,036.69 for medical expenses and 85% of his lost earnings from October 24 through December 24. Mr. Zerwal then demanded that State Farm pay him additional PIP benefits for lost wages from February 13, 1974 until the present time. State Farm refused and Mr. Zerwal sought recovery of these lost earnings. At the conclusion of trial, the judge instructed the jury as follows:

“Tou are instructed that as a matter of law the amount in dispute is not to exceed $2,963.31.
“This is determined as follows: The aggregate amount of coverage under the terms of the policy is $5,000. Of that amount, $2,036.69 has already actually been paid to date.
“If you find that the Plaintiff is entitled to any additional sums under the terms of the policy, you shall award any such additional amount up to a maximum of $2,963.31.”

The jury returned a verdict for State Farm.

Appellant contends that the above instruction was erroneous in that his policy provided for $2,000 in excess medical coverage, and medical payments made pursuant to the PIP benefits should have been credited to the excess coverage allowing him to recoup the full $5,000 in lost wages.

If the instruction was erroneous, the error was harmless since the jury awarded Mr. Zerwal nothing.

The second point sought to be raised was not properly assigned as error and was raised for the first time on appeal in appellant’s reply brief. Therefore, this second point cannot be considered.

Affirmed.


text:
    Walter W. INGHAM, Jr., and Janet K. Ingham, Appellants, v. E. E. PRICE, Appellee.
    No. 75-1025.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Marvin E. Newman and Jon S. Rosenberg, Orlando, for appellants.
    Robert J. Ritter, Sarasota, for appellee.

      Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellants appeal from an adverse final judgment and order denying their motion for a new trial entered pursuant to an action brought by appellee as an accommodation endorser on a note which appellants, as makers, failed to pay when due. Appel-lee was forced to pay the amount of the note to the promisee bank after it had obtained a judgment against both him and appellants.

We have carefully considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated by appellants. See, e. g., Fernandez v. Arocha, Fla.App.1975, 308 So.2d 45; Wrains v. Rose, Fla.App.1965, 175 So.2d 75; Frell v. Frell, Fla.App.1963, 154 So.2d 706; Morris v. Truax, Fla.App.1963, 152 So.2d 515, and see 2 Fla.Jur., Appeals §§ 314 and 316. Therefore, for the reason stated and upon the authorities cited, the final judgment and order appealed are affirmed.

Affirmed.


text:
    Frances AKELEY, Appellant, v. Beaumont MORGAN and Randy Cooper, Appellees.
    No. 75-1169.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Ginsberg & Goldman, North Miami Beach, for appellant.
    Korner & Sampson, Coral Gables, for appellees.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

The appellant was plaintiff in the trial court and sought recovery for alleged sums due for services as a real estate broker. The plaintiff moved for summary judgment and received a summary judgment as to Count II of the complaint against one of the defendants, and the court granted a summary judgment in favor of the other defendant as to Count II. The court also granted the defendants a summary judgment on Counts I and III of the complaint. This appeal ensued.

The plaintiff now contends the trial judge erred in entering the summary judgment for the defendants on Counts I and III and, further, that he erred in not holding the defendant Morgan liable on the judgment as rendered in her favor.

We have reviewed the record and approve of the action of the trial judge. The material facts were undisputed; therefore, it was appropriate for the trial judge to enter the summary judgments as to Counts I and III, as well as hold the defendant Cooper liable as to Count II. Keller v. Penovich, Fla.App.1972, 262 So.2d 243; Beverage Canners, Inc. v. E. D. Green Corporation, Fla.App.1973, 276 So.2d 239; Fredericks v. School Board of Monroe County, Fla.App.1975, 307 So.2d 463; § 925.01, Fla.Stat. The trial court erred as to the defendant Morgan. He should also be liable under Count II and we reverse the judgment in his favor, and direct the trial court to enter a judgment against the defendant Morgan in favor of the plaintiff as to Count II and, if necessary, modify the judgment against Morgan so that both will be liable, jointly and severally, to the plaintiff.

Affirmed in part, reversed in part, with directions.


text:
    Ross O’COUNTRY, Appellant, v. TOWN SANDWICH SHOP, Appellee.
    No. 75-951.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Robert C. Eber, Miami, for appellant.
    I. R. Mayers, Miami, for appellee.
    Before HENDRY and NATHAN, JJ., and LESTER M. IGNATIUS, Associate Judge.
   PER CURIAM.

This is an appeal by the appellant, the defendant in the trial, seeking a review of final judgment and an adverse ruling denying the defendant’s motion for relief from final judgment alleging a mistake by his lawyer as to date of trial.

The appellant makes two points to be determined by this court on appeal. The appellant alleges that the trial court erred in hearing the case without a jury after his attorney and witnesses failed to appear for trial and a demand for jury trial had been made, and, secondly, the trial court erred in its refusal to set aside the judgment because of the excusable neglect of his lawyer.

Examination of the pleadings discloses that appellant’s point that the trial court erred in hearing the case without jury trial is without merit.

The record .on appeal reveals that the trial court carefully considered the arguments of counsel and the affidavits filed in connection with the motion for relief from the trial court in refusing the appellant’s motion for new trial and relief from final judgment. See Winter Park Arms, Inc. v. Akerman, Fla.App.1967, 199 So.2d 107, 109, wherein the court stated:

“In considering the exercise of discretion courts must recognize that litigants may not properly be allowed with impunity to disregard the process of the court; and, indeed, it would be an abuse of discretion to vacate a judgment where the moving party shows no legal ground therefor and offers no excuse for his own negligence or default.”

For a further discussion of the application of judicial discretion, we find in Farish v. Lum’s, Inc., Fla.1972, 267 So.2d 325, 327, as follows:

“The exercise of discretion by a trial judge who sees the parties first-hand and is more fully informed of the situation, is essential to the just and proper application of procedural rules. In the absence of facts showing an abuse of that discretion, the trial court’s decision excusing, or refusing to excuse, noncompliance with rules, such as Rule 1.370, must be affirmed.”

Affirmed.


author: DOWNEY, Judge.

text:
    John Willie PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1390.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1976.
    Richard L. Jorandby, Public Defender, Bruce Zeidel and Craig S. Barnard, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

This is an appeal from a judgment of conviction of attempted rape and a 15 year sentence.

Appellant poses two points for reversal. We deem only the following point worthy of consideration:

The trial court erred in admitting collateral evidence of a charge upon which appellant had been tried and acquitted.

As our courts have frequently mentioned in the recent past, the use of collateral crime evidence in the prosecution of criminal cases has begun to take on dimensions far beyond the proper limits of that rule. See Lawson v. State, Fla.App.3d 1974, 304 So.2d 522, and cases cited therein. Here, we are faced with an attempt to prove some ostensibly relevant issue by showing that appellant had allegedly previously committed an offense similar to the one for which he was on trial, although he had been tried and acquitted upon the earlier charge. We note that the numerical weight of authority appears to hold that acquittal of a defendant of another offense does not render proof of that offense inadmissible at a later criminal trial where such proof is otherwise competent. Anno: Evidence — Other Offense — Acquittal, 86 A.L.R.2d 1132, 1135 (1962). However, the United States Court of Appeals, Fifth Circuit, has recently recognized that the doctrine of collateral estoppel is embodied in the double jeopardy clause of the Fifth Amendment and that that doctrine as part of the double jeopardy clause precludes the state from introducing evidence concerning charges of which an individual has been tried and acquitted.

In Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972), the defendant (Wingate) was convicted in the state court of robbing a small store on July 9, 1968. To show a course of conduct, the state introduced evidence, among other things, that Wingate had robbed one individual at a Farmstore on December 11, 1967, and another individual at a gas station on January 2, 1968. The defense objected to this testimony on the grounds, among others, that Wingate had been acquitted on both charges. The District Court of Appeal, Third District, affirmed, 2-1, 232 So.2d 44, and the Supreme Court of the United States denied certiorari, 400 U.S. 994, 91 S.Ct. 467, 27 L.Ed.2d 443.

Wingate then sought federal habeas corpus relief. The district court denied relief, but the circuit court reversed the denial and ordered that the writ issue unless Wingate was retried. The circuit court held the evidence in question was inadmissible because the question of Wingate’s involvement in the December 11th and January robberies had been litigated in the earlier trials and decided in Wingate’s favor:

“In both instances the state sought to prove to the later jury what it had failed to prove to the earlier juries — that Win-gate had robbed Heilman and Angel.
“In doing so the state violated Win-gate’s rights under the double jeopardy clause of the Fifth Amendment as applied to the state through the Fourteenth Amendment.”
“We hold that under Ashe [v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469] where the state in an otherwise proper prosecution seeks for any purpose to relitigate an issue which was determined in a prior prosecution of the same parties, then the evidence offered for such a relitigation must be excluded from trial and the state must be precluded from asserting that the issue should be determined in any way inconsistent with the prior determination.
“It is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded he did not commit. Otherwise a person could never remove himself from the blight and suspicious aura which surround an accusation that he is guilty of a specific crime, Win-gate was charged with robbing Hellman and Angel and as a result of those charges he endured the perils of trial. He was acquitted of those very charges and that should end the matter.” 464 F.2d at 214-215.

See, too, Blackburn v. Cross, 510 F.2d 1014 (5th Cir. 1975), and the dissenting opinions of Judge Pearson in Blackburn v. State, 208 So.2d 625, 626 (Fla.App.3d 1968), and Judge Rawls in Johnson v. State, 285 So.2d 436 (Fla.App.1st 1973). Cf. Davis v. State, 277 So.2d 311 (Fla.App.4th 1973).

We therefore hold that the trial court committed prejudicial error in admitting (over the appellant’s objection in the present trial) evidence of a charge upon which appellant had been tried and acquitted.

Accordingly, we reverse the judgment and sentence appealed from and remand the cause for a new trial.

Since the cause must be retried we think it appropriate to make the following comment relative to appellant’s first point, which questioned the propriety of certain testimony by a police officer as to Miranda warnings. The state must establish that a defendant has been given Miranda warnings if it intends to offer into evidence an inculpatory statement of the defendant given in the course of a custodial interrogation. See, e. g., Woods v. State, Fla.App.1968, 211 So.2d 248. Since the state was not seeking to introduce any statement of the appellant into evidence, it did not have to establish that appellant had been given Miranda warnings; therefore the testimony upon which appellant bases his first point was unnecessary.

REVERSED and REMANDED.

CROSS and MAGER, JJ., concur.


author: GRIMES, Judge.

text:
    The BOARD OF COUNTY COMMISSIONERS OF HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, Appellant, v. CASA DEVELOPMENT LTD., II, et al., Appellees.
    No. 75-1383.
    District Court of Appeal of Florida, Second District.
    May 28, 1976.
    Rehearing Denied June 18, 1976.

      John W. McWhirter, Jr., of Cason, McWhirter, Henderson & Stokes, Tampa, for appellant.
    John R. Bush of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.
   GRIMES, Judge.

This is an appeal from an order overturning the Hillsborough Board of County Commissioners’ denial of an application for issuance of a water and sewer franchise.

In 1973, appellees obtained an appropriate zoning classification for the construction of a residential development on 820 acres in northwest Hillsborough County. In 1975, appellees filed an application for water and sewer franchises under the provisions of Chapter 59-1352, Laws of Florida, Special Acts of 1959, whereby Hillsbor-ough County is authorized to issue water and sewer franchises to parties in the unincorporated areas of the county desiring to render public water and sewer service. At its regular meeting of February 5, 1975, the Board denied the application.

Appellees first filed a notice of appeal in the circuit court. They later filed a petition for writ of certiorari in the same action, characterizing it as an amendment to their appeal. The action thereafter proceeded as if it were certiorari, except that the court permitted a limited supplementation of the record with respect to matters that were directly brought to the commissioners’ attention at the time of the meeting in which the application was denied. The court ultimately rejected the Board’s action in denying the application and ordered the Board to issue water and sewer franchises to the appellees for periods of twenty-five years.

There is immediately apparent a serious question concerning the nature and scope of judicial review which was available to attack the action of the Board in denying the application. The Administrative Procedure Act does not pertain because the Board of County Commissioners is not an agency covered by the Act. Sweetwater Utility Corp. v. Hillsborough County, Fla.App.2d, 1975, 314 So.2d 194. However, the Special Act which authorized Hillsborough County to issue water and sewer franchises contains a provision of its own relating to review of board action under that law. Thus, Section 7 of the Special Act states:

“Section 7. Within fifteen (15) days from the effective date of any action, rule or regulation adopted or promulgated by said board of county commissioners, any person, firm or corporation aggrieved thereby may appeal such action of said board to the circuit court of said county, and it shall be the duty of said board to cause to be prepared and certified at the cost of appellant a transcript of all proceedings taken and had before said board, and said court shall hear and determine the cause on such record. In the event the action of said board is not sustained, the court shall tax the cost of preparing the transcript against said board.”

Relying upon this provision, the court concluded that he had the authority to “hear and determine” the cause pursuant to ap-pellees’ notice of appeal.

Despite its clear language, we hold that the Special Act was ineffective to confer jurisdiction on the circuit court to hear an appeal from the commission order. Cf. Codomo v. Shaw, Fla.1958, 99 So.2d 849. The jurisdiction of the circuit court is specifically set forth in Article V, Section 5 of the 1968 Constitution of Florida as follows :

“§ 5. Circuit courts
(a) Organisation. There shall be a circuit court serving each judicial circuit.
(b) Jurisdiction. The circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law. They shall have the power to issue writs of mandamus, quo warranto, cer-tiorari, prohibition and habeas corpus, and all writs necessary or proper to the complete exercise of their jurisdiction. Jurisdiction of the circuit court shall be uniform throughout the state. They shall have the power of direct review of administrative action prescribed by general law.”

Consistent with the spirit of Article V to provide a uniform court system throughout the state, circuit courts have jurisdiction of appeals and the power of direct review of administrative action only when provided by “general law.” Obviously, the Special Act in question does not qualify as a “general law.”

Since Article V, Section 5 does grant circuit courts the power to issue writs of certiorari, the next question to be considered is whether the court could properly review the county board’s action by way of certiorari. The answer to this question turns upon whether the action of the Board was quasi-judicial or quasi-legislative in nature.

Traditionally, the review of the actions of commissions and boards acting in a quasi-judicial capacity has been by certiorari in which the reviewing court examines the record to determine whether the action taken below was in accord with essential requirements of law and supported by competent substantial evidence. Harris v. Goff, Fla.App.1st, 1963, 151 So.2d 642. Where agencies and boards have acted in a quasi-executive or quasi-legislative capacity, the proper method of attack is a suit in circuit court for declaratory or injunctive relief on grounds that the action taken is arbitrary, capricious, confiscatory or violative of constitutional guarantees. Harris v. Goff, supra.

When determining whether certain action was quasi-judicial in nature as contrasted to quasi-legislative, the district court of appeal stated in Bloomfield v. Mayo, Fla.App.1st, 1960, 119 So.2d 417:

“It seems clear from the decision of the Supreme Court that the test of a quasi-judicial function turns on whether or not the statutory tribunal had exercised a statutory power given it to make a decision having a judicial character or attribute, and consequent upon some notice or hearing to be had before it as a condition for the rendition of the particular decision made. . . . ”

Before an administrative proceeding can be quasi-judicial in character, there must be a requirement for a hearing to be held upon notice at which the affected parties are given a fair opportunity to be heard in accord with the basic requirements of due process, including the right to present evidence and to cross-examine adverse witnesses, and the judgment of the agency or board should be contingent upon the showing made at the hearing. DeGroot v. Sheffield, Fla. 1957, 95 So.2d 912; Harris v. Goff, supra.

Measured by this test, the action of the Board of County Commissioners of Hillsborough County was clearly quasi-legislative in character. The Special Act contained no criteria which required the issuance of a franchise under specified circumstances. While there was a public hearing upon notice, a quasi-judicial type of hearing was neither contemplated nor conducted. About all that happened was that ap-pellees’ representative made some unsworn statements in support of the application and the county attorney responded with opinions of his own. It was obvious from the discussion that the appellees had been negotiating with the county for some time concerning the issuance of a franchise upon certain conditions. Appellees were unwilling to meet these conditions, so the Board voted to deny the ' application. Therefore, a review by certiorari was an inappropriate remedy. Town of Belleair v. Moran, Fla.App.2d, 1971, 244 So.2d 532.

The appellees’ reliance upon State v. Furen, Fla.1960, 118 So.2d 6, as authority for the procedure followed below is misplaced. First, that case was decided before the adoption of the new Constitution, and the constitutional jurisdiction of the circuit court at that time was substantially different. Moreover, the board action taken in that case was ultimately considered to be quasi-judicial in nature. The net effect of the Furen cases was that in the review of quasi-judicial board action, the circuit court acts as a court of original jurisdiction for purposes of the right to appeal its ruling to the district court of appeal. See Alliance for Conservation of Nat. Resources v. Furen, Fla.App.2d, 1960, 122 So.2d 51.

The confusion generated by the posture of the case below was manifested by the decision to admit some but not all of the testimony proffered with respect to the Board’s recent change of policy on the issuance of water and sewer franchises in view of ecological demands and the development of its own regional waste treatment facility. In essence, the proceeding was neither “fish nor fowl.” The record of the hearing before the County Commission was inadequate in the sense that it was not the record of a quasi-judicial hearing. Therefore, the court allowed the record to be supplemented in a limited manner but severely curtailed the Board’s effort to present testimony tending to show that its action was not arbitrary, capricious, confiscatory or violative of constitutional guarantees.

While it appears that the appellees improvidently sought a review of the denial of their application for a franchise by way of appeal and/or certiorari, we are loath to dismiss their action when they have not yet had their day in court. This is particularly true in view of the fact that they followed a procedure specifically set forth in the Special Act which authorized the issuance of the franchises. Therefore, we hereby reverse the judgment and remand the case with directions for the pleadings to be recast and the case to be tried as if the appellees had filed an original suit in circuit court for declaratory or injunctive relief. This will also permit a full-blown consideration in the proper forum of the appellees’ contention that the County Board was estopped to refuse to issue the requested franchises. We believe our determination to remand is consistent with the constitutional mandate that no cause should be dismissed because an improper remedy has been sought. Fla. Const, art. V, § 2 (1968). See State v. Johnson, Fla.1974, 306 So.2d 102.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


author: MILLS, Judge. BOYER, Chief Judge

text:
    Myles SMYER, Appellant (Defendant), v. Henry M. GAINES, as administrator of the Estate of Lilly M. Gaines, Deceased, Appellee (Plaintiff).
    No. W-502.
    District Court of Appeal of Florida, First District.
    June 3, 1976.

      Robert P. Gaines of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.
    Fredric G. Levin of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   MILLS, Judge.

Smyer appeals from a final judgment based on a jury verdict awarding damages to Gaines, as the surviving husband of and as administrator of the estate of his deceased wife, and to his deceased wife’s parents in a wrongful death action brought under the Florida Wrongful Death Act, effective 1 July 1972.

The issues raised by the appeal are:

1. Whether, in a wrongful death action, the remarriage of the surviving spouse should be considered by the jury in mitigation of damages claimed for the loss of support and services of the deceased spouse.

2. Whether, in a wrongful death action, a condition to recovery of damages by the parents for loss of decedent’s services is that the parents incur the expense of replacing the lost services.

3. Whether the verdict for the decedent’s spouse, estate and parents was excessive.

Gaines’ wife was killed in a collision between a car driven by her and a car driven by Smyer. Gaines was appointed as administrator of the estate of his deceased wife. He filed a wrongful death action against Smyer seeking damages as the surviving husband, as administrator of the estate, and on behalf of the surviving parents. Smyer admitted liability for the death of Mrs. Gaines.

Several days before the trial Gaines remarried. Evidence of his remarriage was submitted to the jury.

The parents of Mrs. Gaines adduced testimony that their deceased daughter performed, with reasonable regularity, many duties of a household nature for them, but they did not replace these services with hired help.

Although the Florida Wrongful Death Act provides that evidence of remarriage of the decedent’s spouse is admissible, there is neither legislative history nor case law which would indicate the purpose for which this evidence is admitted.

The court instructed the jury that:

“In this case the surviving spouse, Henry Gaines, has remarried. The evidence of remarriage can only be considered by you as it might affect the loss of companionship and protection and mental pain and suffering of the surviving spouse. It shall not be considered by you in mitigation of any of the other elements of damage.”

Smyer does not object to the instruction as given by the court, but argues that the instruction did not go far enough. He contends that evidence of remarriage should be considered by the jury in mitigation of all the elements of damage. Therefore, the court erred in failing to instruct the jury that it should also consider the evidence of Gaines’ remarriage in mitigation of his loss of support and services of his deceased wife. Gaines concedes that evidence of remarriage is admissible under the new Florida Wrongful Death Act. However, he argues that public policy, the collateral source doctrine, and legislative intent all limit the purpose for which the evidence can be introduced.

The Florida Wrongful Death Act was originally proposed by the Florida Law Revision Commission, and its recommended act was for the most part passed as recommended. However, the recommended act did not include the subsection on the admissibility of remarriage. This was added to the recommended act by the legislature. Obviously, the legislature could have inserted the provision providing for evidence of remarriage anywhere in the act. Therefore, the placement of this provision within the act would be of prime importance in determining legislative intent.

Section 768.21, Florida Statutes:

“Damages.— . . . Dangers may be awarded as follows:
(1) Each survivor may recover the value of lost support and services
(2) The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.
(3) Minor children of the decedent may also recover for lost parental companionship, . . .
(4) Each parent of a deceased minor child may also recover
(5) Medical or funeral expenses . . . may 'be recovered by a survivor who has paid them.
(6) The decedent’s personal representative may recover for the decedent’s estate the following:
(a) Loss of earnings of the deceased from the date of injury to the date of death, . . .If the decedent’s survivors include a surviving spouse or lineal descendants, loss of net accumulations beyond death and reduced to present value may also be recovered.
(b) Medical or funeral expenses due to the decedent’s injury or death that have become a charge against his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).
(c) Evidence of remarriage of the decedent’s spouse is admissible.
(7) All awards for the decedent’s estate are subject to the claim of creditors . .” (Underlining added)

Since the legislature could have included the evidence of remarriage under any section of the act, it is significant to note that it chose to place it merely as a subsection under the recovery for the decedent’s estate. This would indicate that the evidence of remarriage is not to mitigate the damages of the surviving spouse. This interpretation would fit the collateral source doctrine, the public policy of Florida, and the legislative intent of the .Wrongful Death Act.

Damages for wrongful death may not be reduced by amounts received by beneficiaries as compensation from a collateral source. Wadsworth v. Friend, 201 So.2d 641 (Fla.App. 4th, 1967).

The placement in the act of subsection (6) (c) of Section 768.21, Florida Statutes, “Evidence of remarriage of the decedent’s spouse is admissible”, indicates that there are only two purposes for which the evidence could be used: (1) it could mitigate the damages going to the decedent’s estate from the loss of net accumulation, since the loss of net accumulation can only be regained by the estate when there is a surviving spouse or lineal descendants; (2) rather than to mitigate any damages, the evidence could be introduced for the sole reason of allowing the truth to be known and to keep the court from having to participate in a fraud upon the jury. In Seaboard Coastline Railroad Company v. Hill, 270 So.2d 359 (Fla.1972), the dissent stated:

“ . . . Assuredly, the jury should not be presented, as it was here, with what is really not a true picture of the existing situation and asked to participate in a charade.
“A law suit must be tried in an atmosphere of truth. The witnesses are sworn to tell the WHOLE truth. We recognize that certain evidence must be withheld from consideration when it is truly irrelevant or so prejudicial as unfairly to affect the the trial and a fair consideration of the evidence which is relevant. However, we cannot conjure up a fictitious set of circumstances for a jury to evaluate and withhold the true facts. . . .”

Section 768.17, Florida Statutes, provides :

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. . , .”

Virtually all of the American jurisdictions, with the exception perhaps of Mississippi and Wisconsin, have ruled that the surviving spouse’s remarriage does not affect the damages recoverable in actions for the wrongful death of the deceased spouse. There are two reasons for this rule: (1) the cause of action arises at the time of the decedent’s death, and the damages are determinable as of that time; and (2) the rule providing for mitigation of damages on account of the surviving spouse’s remarriage is highly speculative, because it involves a comparison of the prospective earnings, contributions and services of the deceased spouse with those of the new spouse. However, in many jurisdictions the evidence of the remarriage is admissible, but cannot be used to mitigate damages. 87 A.L.R.2d 252-253.

In our judgment, evidence of remarriage of the decedent’s spouse is admissible so that the whole truth be known. It may not be considered in mitigation of any elements of damage recoverable under the act by the surviving spouse. Therefore, the court did not err in refusing to instruct the jury that it should consider the evidence of Gaines’ remarriage in mitigation of his loss of support and services of his deceased wife. Although the court erred in giving the instruction which is set forth above, Gaines has not cross-assigned this as error; therefore, a reversal is not required.

Section 768.18, Florida Statutes, defines “survivors” as including a decedent’s parents.

Section 768.21(1), Florida Statutes, states that each survivor may recover the value of lost support and services. This section further states that in evaluating loss of support and services, the survivor’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered.

Section 768.18, Florida Statute, defines services as meaning “tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to a survivor of the decedent. The services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case.”

The same section defines support as including “contributions in kind as well as money.”

The major thrust of Smyer’s argument is that no evidence was presented that the parents had incurred any “necessary expenses” to replace the services provided by their daughter. Smyer argues that the statute specifically requires that the task be regularly performed and that there be a necessary expense to the survivors arising from the loss.

In the recommendations and report on the Florida Wrongful Death Act prepared by the Florida Law Revision Commission, it was noted that the most serious defect in the prior wrongful death law was that there as a strict hierarchy of beneficiary classes and that the cause of action vested exclusively in the highest beneficiary class. Under this scheme, if there was a surviving spouse neither minor children nor other dependent persons could be compensated for their losses. However, damages for all three classes were computed according to the loss to survivors theory. The Florida Law Revision Commission notes that the new act would expand the loss to survivors theory of damage. Under the new theory, “A spouse and all blood relatives dependent in whole or in part upon the decedent should be allowed to recover the full value of lost support and services.” It does not appear that the measure of damages for lost support and services was intended to be changed by the new law. It would seem, therefore, that prior case law dealing with loss of support and services would still be applicable under the new statutes.

In Smith v. Whidden, 87 So.2d 42 (Fla.1956), the court stated:

. . In a case such as this where the nature of the wife’s services is shown by the evidence and it is established that the husband has lost such services because of the death of his wife . , he is entitled to recover, insofar as reasonably measurable, the value of that which the defendant’s negligence has deprived him of enjoying. It is not essential as a condition to recovery that he immediately hire someone to render the service. It is sufficient to prove that he had previously enjoyed the service and had been deprived of it by the negligence of the defendant. . . .” (Underlining added)

Under the new act, the surviving spouse and all other dependent blood relatives are to receive compensation for the loss of services and support previously provided by the decedent. Just as it is not necessary for the surviving spouse to hire someone to render the services that the decedent previously had performed, it is also unnecessary for any other dependent to have to hire someone to perform those same services as a condition of recovery.

In his instructions to the jury, the Judge added the following statement at the end of the standard jury instruction:

“Where services are rendered gratuitously to the survivor, the defendant is not entitled to reduce the damages and the survivor is entitled to recover at the reasonable value of the lost services.”

This instruction was unnecessary and may have confused the jury. However, the giving of this instruction is harmless error.

A carefully chosen jury heard the evidence presented by the skilled and expert counsel at a trial presided over by an experienced and knowledgeable judge, who declined to grant a new trial because of claimed excessiveness. It is our view that the verdict and judgment are supported by the evidence and law.

Therefore, the judgment is affirmed.

WILLIS, BEN C., Associate Judge, concurs.

BOYER, C. J., concurs specially.

BOYER, Chief Judge

(concurring specially) .

I concur in affirmance. I agree that the legislature wisely provided that evidence of remarriage of the decedent’s spouse is admissible in wrongful death actions in order that the courts not be a party to a charade as mentioned in the majority opinion. I am anxious, however, that our opinion in this case not be construed as either a mandate or authorization for the trial court to negatively instruct a jury to the effect that the jury may not consider remarriage in mitigation of damages. I am also of the view that the opinion in this case should not be construed as a prohibition against defense attorneys arguing to the jury logical conclusions which may be drawn incident to damages or otherwise from remarriage by the surviving spouse.


text:
    Roy HESTER, Appellant, v. John A. GATLIN et al., Appellees.
    No. 75-1360.
    District Court of Appeal of Florida, Second District.
    April 23, 1976.

      Lynn H. Groseclose of Sprott & Grose-close, Lakeland, for appellant.
    Ted R. Manry, III, and Stephen H. Sears of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee Lauren Metzler Frank.
   GRIMES, Judge.

This is an appeal from a summary judgment entered against the third party plaintiff (Hester) and in favor of the third party defendants (Frank and Gilchrist).

An automobile owned by Hester and driven by Wells had slowed or stopped preparatory to making a lefthand turn. Gat-lin was slowing or stopping immediately behind when he was struck by an automobile driven by Frank. ■ As a result of the collision, Gatlin was knocked into Hester’s automobile. Then Gilchrist rear-ended Frank.

Gatlin first sued Frank and Gilchrist for personal injuries. This suit was concluded by a settlement of $6,500. Gatlin then filed a new suit against Hester. Hester filed a third party complaint for indemnification and/or contribution against Frank and Gilchrist. On August 18, 1975, the court granted summary judgment in favor of Frank and Gilchrist on the basis that the third party complaint purported “to seek indemnification and/or contribution among active joint tortfeasors contrary to the law of the State of Florida.”

The predicate for Hester’s appeal is that his third party complaint is now governed by the Uniform Contribution Among Tort-feasors Act. Fla.Stat. § 768.31 (1975). Hester correctly points out that subsection (7) of this statute provides that it shall apply to all causes of action pending on June 12, 1975. Thus, the court’s conclusion that there was no contribution among joint tortfeasors in Florida was no longer accurate at the time the summary judgment was entered. See Lincenberg v. Issen, Fla.1975, 318 So.2d 386.

Be that as it may, there are two reasons why the summary judgment must still be affirmed. The first reason is found in the Uniform Act itself. Subsection (5) of the statutes states:

“(5) Release or covenant not to sue. —When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
(a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and,
(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.”

Therefore, when Gatlin released Frank and Gilchrist, it had the effect of discharging them from the claim for contribution made by Hester.

Furthermore, by the terms of the release which Gatlin signed when he settled with Frank and Gilchrist, he also released Hester. The pertinent language of the release stated:

“KNOW ALL MEN BY THESE PRESENTS:
That the Undersigned, being of lawful age, for the sole consideration of Six Thousand Five Hundred and no/100 Dollars ($6,500.00) to the undersigned in hand paid, receipt whereof is hereby acknowledged, do/does hereby and for my/our/its heirs, executors, administrators, successors and assigns, release, acquit and forever discharge Robert Dell Gilchrist; Allstate Insurance Company; Lauren Metzler Frank; Gloria Stone Frank; Aetna Casualty & Surety Company, and any and all other persons and/or corporations who are or may be liable for injuries or damages sustained as a result of the subject accident and his, her, their or its agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or may hereafter accrue on account of or in any way growing out of and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or events which occurred on or about the 16th day of December, 1969, at or near State Road 600 and Reynolds Road, in Polk County, Florida. . . .” (Emphasis supplied.)

The fact that the consideration for this release only flowed from Frank and Gilchrist did not prevent Hester from obtaining its benefits as a third party beneficiary. See Albert’s Shoes v. Crabtree Construction Co., Fla.1956, 89 So.2d 491. The inclusion of the italicized language in the release was also beneficial to Frank and Gilchrist, if for no other reason than to be available as an additional defense to a claim for contribution such as is being made by Hester in this case.

We recognize that our holding will have the effect of causing the dismissal of Gat-lin’s claim against Hester upon remand. However, Gatlin is a party to this appeal, and his attorney is aware of the arguments being advanced with respect to the release. Rule 1.180, RCP, contemplates that a third party defendant may raise any defenses which the third party plaintiff has to the plaintiff’s claim. See 3 Moore’s Federal Practice, § 14.13, discussing this aspect of Federal Rule 14, from which our rule was derived. Since Frank and Gilchrist have conclusively demonstrated that Gatlin cannot recover from Hester, it is obvious that Hester would have no liability for which to seek contribution from Frank and Gilchrist.

This court is not bound by the erroneous rationale or reasoning of a trial court if the record reveals an alternative basis upon which to uphold the order or judgment. MacNeill v. O’Neal, Fla.1970, 238 So.2d 614; Hall v. Florida Board of Pharmacy, Fla.1965, 177 So.2d 833. Therefore, while the stated reason for the action of the trial court was in error, the summary judgment is, nevertheless,

AFFIRMED.

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


text:
    FLORIDA STEEL CORPORATION, Appellant, v. A. G. SPANOS ENTERPRISES, INC., et al., Appellees.
    No. 75-1113.
    District Court of Appeal of Florida, Second District.
    June 2, 1976.
    Jary C. Nixon of Nixon & Farnell, Tampa, for appellant.
    R. Timothy Peters of Goza, Hall & Peacock, P. A., Clearwater, for appellee A. G. Spanos Enterprises, Inc.
   GRIMES, Judge.

This case involves the question of whether a superseded judgment is subject to garnishment pending appeal.

Florida Steel Corporation was the mate-rialman on a housing project being built by American Construction Company of Florida and American Structures, Inc. for A. G. Spanos Enterprises, Inc. Florida Steel brought suit against the contractors for monies owing for the delivery of materials. Spanos, the project owner, was joined as a defendant for the purpose of obtaining a mechanic’s lien. Judgment was entered against the contractors for the amount owing Florida Steel. Florida Steel obtained a mechanic’s lien against Spanos in a lesser amount because it was unable to prove that all of its materials were incorporated into the Spanos project. Spanos satisfied the judgment against it, thereby reducing the amount of the judgment against the contractors, but the balance owed by the contractors remained unsatisfied.

In a separate suit, the contractors had filed an action for the balance of the construction contract price allegedly owed them by Spanos. Spanos defended on the grounds that the contractors were guilty of poor workmanship and had finally abandoned the project. The contractors prevailed and judgment was rendered in their favor for an amount in excess of the unsatisfied amount of the Florida Steel judgment against the contractors. Florida Steel then obtained a writ of garnishment directed to Spanos as garnishee. Spanos filed an answer to the writ denying that it was indebted to the contractors at that time because Spanos was appealing the judgment entered against it in favor of the contractors. Following a traverse by Florida Steel, the court dissolved the writ of garnishment on the basis that judgment was not a debt subject to garnishment because it had been superseded pending the appeal. Florida Steel appeals this order.

Garnishment procedures in Florida are governed by Florida Statutes, Chapter 77. Fla.Stat. § 77.01 (1975) states, in part:

“Every person who has sued to recover a debt or has recovered judgment in any court against any person, natural or corporate, has a right to a writ of garnishment, in the manner hereinafter provided, to subject any debt due to defendant by a third person, and any tangible or intangible personal property of defendant in the possession or control of a third person. . . .” (Emphasis added.)

The final judgment against Spa-nos was clearly a debt within the meaning of the statutory language of Fla.Stat. § 77.01. Long ago, our Supreme Court recognized that a judgment may be garnished. Jax Ice and Cold Storage Company v. South Florida Farms Company, 91 Fla. 593, 109 So. 212 (1926).

A closer question is whether a final judgment is subject to garnishment when an appeal is pending. There is little doubt that a judgment based upon a liquidated claim can be garnished because a liquidated claim is subject to garnishment even though it has not been previously reduced to judgment. Alabama Hotel Co. v. J. L. Mott Iron Works, 1924, 86 Fla. 608, 98 So. 825. Moreover, a judgment ob tained on an unliquidated claim can be garnished once it has become final and no longer subject to appeal. However, most of the cases which have considered this subject hold that a judgment upon an un-liquidated claim cannot be garnished pending an appeal. 6 Am.Jur.2d, Attachment and Garnishment, Sec. 136; 121 A.L.R. 420; 85 L.Ed. 755; Pacific Gas & Electric Co. v. Nakano, 1939, 12 Cal.2d 711, 87 P.2d 700. Almost all of these cases are judgments upon tort claims, but it appears that the principle of these cases would be equally applicable to a judgment upon an unliquidated contract claim such as that against Spanos in the instant case.

On the other hand, there are several Florida cases involving garnishments against liability insurance carriers which suggest that our state has accepted the minority view. Grange Mutual Casualty Company v. Stroud, Fla.App.2d, 1965, 173 So.2d 171; Conley v. Singleton, Fla.App.1st, 1965, 171 So.2d 65; American Southern Insurance Co. v. Driscoll, Fla.App.1st, 1960, 125 So.2d 105. In Grange Mutual Casualty Company v. Stroud, supra, this court said:

“It is well settled in Florida that a plaintiff who has obtained a judgment against a defendant may proceed in garnishment against the defendant’s insurer immediately upon the entry of a final judgment by the tiral court, regardless of whether an appeal is taken, where the judgment is not superseded. . . . ”

Since it could be argued that garnishment against a liability insurance carrier seeking to collect on a judgment against its insured is more remote than the garnishment on a judgment entered directly against the garnishee, there would appear to be no reason why the rule in Florida should be any different in non-insurance cases.

Thus, we now focus upon the situation where, as in the instant case, the judgment debt sought to be garnished has been superseded pending appeal. The insurance cases cited above clearly imply that there can be no judgment of garnishment and execution against the insurance company while the judgment against the insured is superseded pending appeal. Similar considerations dictate that the same rule should apply to the instant case. It would be patently unfair for a garnishee to be able to supersede the effect of the judgment against him with respect to execution by his creditor and yet be unable to prevent a third party from collecting on the same judgment by way of garnishment.

Therefore, up to this point, we are in total agreement with the action of the court below. However, we believe the court should have granted Florida Steel’s request to stay the garnishment proceedings rather than to dissolve the writ. Under these circumstances, should the appeal be successful and the judgment reversed, the writ of garnishment could then be dissolved. If the appeal is affirmed, the plaintiff would be entitled to a judgment of garnishment and should be in a position to stand in the shoes of the defendant to the extent of being able to collect upon the supersedeas bond. In this way, the plaintiff can maintain his priority against subsequent garnishing plaintiffs and will not be required to monitor the outcome of the appeal so as to be able to immediately reinstitute garnishment proceedings upon an affirmance before the money owing under the judgment is paid to the defendant.

Our conclusion is in harmony with the opinion in Pennsylvania Thresh. & F. Mut. Cas. Ins. Co. v. Barrett, Fla.App.3d, 1965, 174 So.2d 417, involving an attempt to collect upon a superseded judgment pending appeal by way of garnishment in which our sister court said:

“. . . A supersedeas has the effect to suspend all further proceedings in relation to a judgment superseded, but it does not, like a reversal, annul it. The supersedeas, being preventive in nature, does not set aside what the trial court has adjudicated, but stays further proceeding in relation to the judgment until the appellate court acts thereon. Bacon v. Green, 1894, 36 Fla. 313, 18 So. 866. The act of the trial judge in the court below involved a proceeding in relation to the judgment superseded and should have been stayed until the disposition of the appeal had become final. . . .”

Accordingly, the order dissolving the writ of garnishment is hereby reversed and the case is remanded for further proceedings consistent with this opinion.

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


author: PER CURIAM. BOYER, Chief Judge

text:
    Ronald Harry BURK, Appellant, v. Joy Margaret BURK, Appellee.
    No. AA-197.
    District Court of Appeal of Florida, First District.
    June 3, 1976.
    Richard A. Krause, Ormond Beach, for appellant.
    H. Pope Hamrick, Jr., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS and SMITH, JJ., concur.

BOYER, C. J., dissents.'

BOYER, Chief Judge

(dissenting).

I respectfully dissent. Appellant is appealing an order of the trial judge denying appellant, the father of three children, relief by way of modification of a final judgment of dissolution of marriage by which appellant was, pursuant to his own improvident stipulation, required to pay child support payments which are now substantially beyond his ability. Certainly a father should, if at all possible, support his minor children. That obligation is not changed by dissolution of the marriage of the parents of the children. The children remain entitled to support. However, sub judice it appears that appellant initially undertook by his own stipulation to pay more support than he could afford. There has since been a change in circumstances by virtue of which his income has been reduced. Although the change in circumstances is to some degree attributable to appellant’s own actions, there is no indication that he had intentionally engineered a change in circumstances for the purpose of attempting to reduce his support obligations. Without a sufficient remainder to reasonably maintain himself appellant will be in no position to produce the income necessary to pay child suupport in any amount. I fully recognize and agree that fixing child support is usually left to the sound discretion of the trial judge: And rightly so. It appears, however, from the record in this case that appellant’s feet are smiply being held to the fire which it appears he built himself by entering into the initial stipulation. I would not kill the goose that lays the golden egg. In my view appellant is entitled to at least some relief in the form of reduction of his child support obligations in reasonable proportion to the reduction in his income since entry of the final judgment of dissolution. I would reverse with such directions.


text:
    BROWARD COUNTY BOARD OF RULES AND APPEALS, Petitioner, v. RUSH HAMPTON INDUSTRIES and Florida Board of Building Codes and Standards, Department of Community Affairs, State of Florida, Respondents.
    No. 75-1490.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1976.

      Charles G. Brackins of Rogers, Morris & Ziegler, Fort Lauderdale, for petitioner.
    E. Hugh Chappell, Jr., Fort Lauderdale, for respondent Rush Hampton Industries.
    Robert L. Shevin, Atty. Gen., and Charles R. Ranson, Asst. Atty. Gen., Talla-hasse’e, for respondent Florida Board of Building Codes and Standards.
   DOWNEY, Judge.

The Broward County Board of Rules and Appeals petitions for a writ of certio-rari to review an order of the respondent Florida Board of Building Codes and Standards of the Department of Community Affairs of the State of Florida denying the Broward Board’s motion to dismiss for lack of jurisdiction an administrative appeal which respondent Rush Hampton Industries took to the Florida Board.

This litigation had its genesis in an order of the Broward Board dated May 8, 1975, which held, in effect, that use of a certain type of air circulator unit that Rush Hampton manufactures would not be allowed in Broward County after December 12, 1974, the effective date of an amendment to the Broward County Edition of the South Florida Building Code. Being dissatisfied with the decision of the Bro-ward Board, Rush Hampton Industries on May 13, 1975, filed a petition for writ of certiorari to the Circuit Court of Broward County pursuant to Section 203 of the South Florida Building Code.

On June 2, 1975, Rush Industries also filed an appeal from the May 8th order to the Florida Board pursuant to § 553.81 F. S.1974, whereupon the Broward Board moved to dismiss that appeal for lack of jurisdiction on the ground that Rush Hampton had previously sought a petition for writ of certiorari in the circuit court to review the same order. When the Florida Board denied the motion to dismiss, the Broward Board petitioned this court for a writ of certiorari to review the Florida Board’s order of denial.

The issue for our determination is whether the passage of The Florida Building Codes Act of 1974, Chapter 74-167, Laws of Florida (codified in §§ 553.70-553.87 F.S.1974), requires that appeals from decisions of the Broward County Board of Rules and Appeals be to the Florida Board of Building Codes and Standards or district court of appeal rather than to the circuit court pursuant to the Special Act applicable to Broward County. Stated another way, do the provisions of the General Act (Chapter 74-167) have the effect of repealing those provisions of the Special Act applicable to Broward County that concern appellate review of decisions of the Broward County Board of Rules and Standards so as to vest exclusive jurisdiction to review such decisions in the Florida Board of Building Codes and Standards? Our answer is in the affirmative.

Chapter 71-575, Laws of Florida (a special act), provides, among other things, that “The South Florida Building Code, Dade County, 1970 edition, as amended, shall apply to all municipalities and unincorporated areas of Broward County, Florida.” In pertinent part, The South Florida Building Code provides that “Any person aggrieved by a decision of the Board of Rules and Appeals . . . may apply to the appropriate court for a writ of certiorari to review such decision.”

In 1974 the legislature passed the Florida Building Codes Act (Chapter 74-167, Laws of Florida), thereby creating within the Department of Community Affairs the Florida Board of Building Codes and Standards. § 553.74, F.S.1974. The Board is to regulate building codes throughout the state. §§ 553.76-553.77, F.S.1974. The legislature expressed the intent underlying the adoption of the act in the following way:

“Intent. — The purpose and intent of this act is to provide a mechanism for the promulgation, adoption, and enforcement of state minimum building codes which contain standards flexible enough to cover all phases of construction and which will allow reasonable protection for public safety, health, and general welfare for all the people of Florida at the most reasonable cost to the consumer.” § 553.72, F.S.1974.

The act contemplates the use of an Interim State Building Code culminating in a State Minimum Building Code by 1977. § 553.-78(7), F.S.1974. Uniformity throughout the state is intended as nearly as possible. § 553.78(6), F.S.1974.

With reference to appellate review the legislative intent is further demonstrated by § 553.73, which provides:

“(1) By January 1, 1975, local governments and state agencies with building construction regulation responsibilities that do not have in effect codes regulating the construction of buildings shall adopt an interim building code which covers all types of construction. By October 1, 1975, such code shall include the provisions of part V relating to accessibility by handicapped persons.”
* * * * * *
“(3) After January 1, 1975, local governments and state agencies with building construction regulation responsibilities may provide for more stringent requirements than those specified in the interim state building code, provided:
“(a) There is a determination of a need to strengthen the Interim State Building Code requirements, based upon demonstrations that local conditions justify more stringent requirements than those specified therein, for the protection of life and property; and
“(b) Such additional requirements are not discriminatory against materials, products, or construction techniques of demonstrated capabilities.
“(4) All code requirements in effect by any code enforcement jurisdiction on January 1, 1975, which are not inferior to the Interim State Building Code requirements, are presumed to meet the conditions of subsection (3), except that an aggrieved party shall have the right of appeal to the board in accordance with the provisions of § 553.81.”

Thus, a local government which has in effect as of January 1, 1975, a building code not inferior to the Interim State Building Code is governed by the provisions of § 553.73, F.S., and one aggrieved by a deci-sibn of a local board enforcing building code regulations has a right to appeal to the State Board of Building Codes and Standards. Should the State Board decline to review the decision in question or should either party be aggrieved by the decision of that board, judicial review is available to the district court of appeal. § 553.81(3) F.S.1974.

Thus, it appears to us that the legislature enacted a general revision of the subject matter of area building codes requiring statewide minimum standards with an eye to statewide uniformity. Although the wisdom of the various portions of the act is not ours to judge, we note that several aspects of the procedure for review may well be an improvement over the old procedures. For example, instead of going into court immediately to review the decision of the local government enforcing agency, review will generally be had by the State Board of Building Codes and Standards comprised of members who have special expertise in the building industry. In addition, one step in the procedure for judicial review is eliminated. Judicial review commences with the district courts of appeal, whereas heretofore certiorari to the circuit court (pursuant to a special act such as Chapter 71-575) was often followed by an appeal to the district court of appeal.

We are fully cognizant of the rule that a general act will not be held to impliedly repeal a special or local act unless it is clear the legislature intended that result. We find that intent clearly manifested by the scope and purpose of Chapter 74-167, Laws of Florida.

Petitioner’s reliance on the case of Alford v. Duval County School Board, 324 So.2d 174 (Fla.App. 1st, 1975), as authority for a contrary conclusion is misplaced. The court there held that the Administrative Procedure Act, Chapter 120 F.S., did not repeal by implication the provisions for appellate review of the Duval County Special Act referred to as the Duval County Teachers Tenure Act. That special act involved the tenure and discipline of school teachers and provided for specific appellate review of decisions pertaining to that subject matter. The Administrative Procedure Act of course pertains generally to all sorts of administrative proceedings throughout the state. Absent an express provision preempting the field, the court looked to the language of the general act and rather than finding any intent to repeal the special act provision it found an express provision to the contrary. The Administrative Procedure Act, § 120.72(1), provides that it is intended to replace all provisions in the Florida Statutes, 1973, relating to rulemaking, agency orders, administrative adjudication, or judicial review (with certain exceptions not material here). The court found that by its terms the Administrative Procedure Act applied only to replacement of general laws, not special acts. Thus, the Alford decision is neither persuasive nor controlling in this case.

Accordingly, we hold that the exclusive method for reviewing the May 8, 1975, order of the Broward County Board of Rules and Appeals is by appeal to the Florida Board of Building Codes and Standards. Therefore, we affirm the decision of the Florida Board of Building Codes and Standards denying appellant’s motion to dismiss for lack of jurisdiction.

CROSS, J., and SCHULZ, GEORGE E., Associate Judge, concur.

      . Appellant had such a code in effect as of January 1, 1975, viz., the South Florida Building Code. See § 553.73(2) F.S.1974.


text:
    William A. PACETTI, Appellant, v. Rosa PACETTI, Appellee.
    No. 75-933.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Korner & Sampson and Donald Mason, Coral Gables, for appellant.
    Irene Redstone, Miami, for appellee.
    Before HENDRY and NATHAN, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   PER CURIAM.

This is an appeal to review an award of alimony by the trial court two years after the divorce where the divorce decree made no specific provision for alimony.

After twenty years of marriage the appellant, William A. Pacetti, a medical doctor, obtained a divorce from his wife, Rosa Pacetti, a default having been previously entered against her. She was not represented by counsel nor did she appear at the final hearing which was held while she was out of town. The court awarded custody of the four minor children to Rosa Pacetti.

The trial court in its final judgment directed William A. Pacetti to make all mortgage and utility payments on the home of the parties and further directed the appellant to make child support payments in the sum of $100.00 per week. No appeal was taken from the Final Judgment.

The record on appeal disclosed that in April of 1972 the appellant took out a second mortgage on the marital home and kept the proceeds. However, Rosa Pacet-ti’s equitable share of the proceeds subsequently was reimbursed to her.

In September 1972, the marital home was sold and Rosa Pacetti moved into a mobile home purchased for her by William A. Pacetti out of her portion of the equity in the marital home.

In October 1972, Rosa Pacetti filed a petition for modification of the Final Judgment of divorce claiming that the husband was in arrears in child support and sought other relief as the court felt proper. The petition was referred to a General Master who concluded and recommended to the court, in his report, that there was no ar-rearage of child support; that William A. Pacetti reimbursed Rosa Pacetti the sum of $3,981.19 representing the balance of one-half of the proceeds derived from the second mortgage, and required the appellant to pay the sum of $50.00 per week for child support. The Master’s report further recommended to the court that even though the said final judgment did not provide for alimony to the petitioner, that it consider the mortgage and utility payments on said marital home to be alimony for the petitioner. That said payments have been treated by the parties as alimony by common consent, and the wife should continue to receive and the appellant should be required to pay the wife the sum of $145.00 per month as alimony together with utility payments on the mobile home where the wife and children are to reside. The Master’s recommendations were adopted by the trial court.

The appellant contends that the provisions of the final judgment in the 1970 divorce was a property settlement, not an alimony award, and a judge two years after the divorce decree cannot award alimony where the original divorce decree made no provision for alimony.

The appellee contends that the 1970 decree requiring the husband to make the mortgage payments was in the nature of alimony and not property settlement, and it was proper for the trial court to convert the monthly mortgage payments into a monthly cash alimony payment.

We have considered the record, the briefs, and the arguments of counsel and have concluded the lower court was correct in interpreting that the payments required to be made under the final decree of divorce were in the nature of alimony and not as a fixed right attached to property, and that there was a change of circumstances which permitted the court to modify the original decree. It is obvious that the appellant himself has treated the mortgage payments as alimony as he reported same in his annual income tax return as alimony. See Waddell v. Waddell, Fla.App.1974, 305 So.2d 30; Fisher v. Fisher, Fla.App.1967, 202 So.2d 868.

The order affirming Master’s report granting alimony is affirmed.