author: PER CURIAM. HATCHETT, Justice, BOYD, Justice,

text:
    Carl JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 48165.
    Supreme Court of Florida.
    March 9, 1978.
    Rehearing Denied July 13, 1978.

      Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant, Carl Jackson, was convicted on two counts of murder in the first degree. The jury recommended and the trial judge imposed a sentence of death. Jurisdiction vests in. this court pursuant to Article V, Section 3(b)(1), Florida Constitution. We affirm the conviction and sentence.

On Sunday morning, April 20, 1975, Ann Patterson Butler was found shot in the head behind the counter of the Jr. Food Store in Bay County, Florida. A short time later, the corpse of Mary Frances Price was found in the front seat of a Chrysler automobile parked in a cemetery a short distance away. There were no witnesses to the actual killings. The following facts were adduced at trial:

On the morning of April 20, 1975, Jimmy Harris, an acquaintance of Jackson’s, stopped by appellant’s apartment to collect a debt. Appellant asked Harris to drive him to a friend’s house to pick up the money. Instead of directing Harris to the other person’s house, however, Jackson, with a gun in his belt, told Harris to stop at a Jr. Food Store. He then got out of the car and ordered Harris to drive around the block, return, and pick him up. Harris drove away but did not return. Later that day, after hearing that the Jr. Food Store had been robbed, Harris went to the police and related the above information concerning appellant’s earlier activities.

That same morning, Mr. and Mrs. Price stopped at the Jr. Food Store on their way to church. Mrs. Price waited in the car while Mr. Price went into the store. The keys to the car remained in the ignition. When Mr. Price entered the store, he turned left, away from the counter, and walked to the far corner of the building. After finding the item he wished to purchase, he approached the counter where he found Mrs. Butler, the sales clerk, lying on the floor in a pool of blood. He immediately telephoned the police and then looked out the front door and discovered that his wife and his car were missing. Both were found in a cemetery a few blocks away from the Jr. Food Store. Mrs. Price had been shot in the head at close range.

During the course of the investigation, appellant’s jacket was discovered in the woods a few feet from the abandoned car. His girlfriend testified that he was wearing the jacket when he left their apartment on Sunday morning and returned later that day without it. Another witness testified that shortly after the robbery had taken place he saw appellant in the vicinity walking along the road and stopped to offer him a ride. Once inside the vehicle, appellant asked the witness if he had heard about the murder in the cemetery. Mrs. Price had not at this time been found. In addition, appellant’s fingerprints were found on a package of cigarettes in the front seat of the Prices’ car.

The evidence against appellant, though circumstantial, was strong.

Appellant raises five points on appeal. First, he argues that the trial court erred in denying his motion for change of venue. It is his contention that, due to pretrial publicity, it was impossible for him to receive a fair and impartial trial in Bay County. Twenty-two of the prospective jurors examined admitted to having read about the case or having heard about it on the radio or television. Nine prospective jurors knew one of the victims or knew one or more of the witnesses who would testify at trial. This issue is governed by the test stated in Kelley v. State, 212 So.2d 27 (Fla.2d DCA 1968), which we adopted in McCaskill v. State, 344 So.2d 1276, Opinion filed April 7, 1977:

Knowledge of the incident because of its notoriety is not, in and of itself, grounds for a change of venue. The test for determining a change of venue is whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely upon the evidence presented in the courtroom. Singer v. State (Fla.1959) 109 So.2d 7; Collins v. State (Fla.App.1967) 197 So.2d 574, and cases cited therein. Kelley v. State, 212 So.2d at 28.

The prospective jurors, when questioned, stated that they could decide the issues between the state and the appellant based upon the evidence heard and the exhibits examined in the courtroom. We find nothing in the record to indicate that the trial judge abused his discretion in denying appellant’s motion for change of venue.

In appellant’s second point he attacks the constitutionality of Florida’s death penalty. Similar attacks were rejected by this court in State v. Dixon, 283 So.2d 1 (Fla.1973), and by the United States Supreme Court in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). These cases are dispositive of this issue.

Appellant’s third point involves the admission into evidence of three photographs taken of the victims and admitted over appellant’s objections. It is appellant’s contention that these pictures were unnecessary and served only to inflame the passions of the jury. Indeed, the pictures complained of are gruesome. However, as we stated in Young v. State, 234 So.2d 341 (Fla.1970):

The fact that the photographs are offensive to our senses and might tend to inflame the jury is insufficient by itself to constitute reversible error, but the admission of such photographs must have some relevancy, either independently or as corroborative of other evidence, (footnotes omitted)

And again, in State v. Wright, 265 So.2d 361 (Fla.1972):

[T]he current position of this Court is that allegedly gruesome and inflammatory photographs are admissible into evidence if relevant to any issue required to be proven in a case. Relevancy is to be determined in the normal manner, that is, without regard to any special characterization of the proffered evidence. Under this conception, the issues of “whether cumulative”, or “whether photographed away from the scene,” are routine issues basic to a determination of relevancy, and not issues arising from any “exceptional nature” of the proffered evidence.

See also Bauldree v. State, 284 So.2d 196 (Fla.1973), and Swan v. State, 322 So.2d 485 (Fla.1975). Applying this test of admissibility to this case, we hold that the photographs were relevant and that no error was committed in admitting them into evidence. However, we again caution the prosecutors of this state that gory and gruesome photographs admitted primarily to inflame the jury will result in a reversal of the conviction.

Appellant also challenges the admission of certain statements elicited at trial regarding the exercise of his Miranda rights. The Bay County Sheriff was sworn as a witness for the state and related the following facts: Upon arrest, appellant was advised of his constitutional rights pursuant to the procedure outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), after which he discussed his whereabouts on the morning of the murders and described the clothing he was wearing on that date. The sheriff then warned Jackson that he was going to ask him questions regarding the two women who were murdered, whereupon the defendant stated, “I want a lawyer.” It is appellant’s contention that the sheriff’s statement constitutes an impermissible comment upon appellant’s exercise of his rights under the Fifth and Sixth Amendments to the United States Constitution. Appellant correctly states our holding in Bennett v. State, 316 So.2d 41 (Fla.1975), that any comment upon a defendant’s standing mute or silent or refusing to testify in the face of an accusation is fundamental error requiring reversal for a new trial. But this is not a Bennett situation. In Bennett the prosecutor elicited testimony from his own witness to the effect that after being advised of his constitutional rights, defendant “refused to sign the waiver . . .” This statement suggests that defendant had a duty to respond and was held to be an impermissible comment on defendant’s exercise of his Fifth Amendment rights. In the present case, the appellant’s statement, “I want a lawyer” was brought out on cross-examination by counsel for the defense. But for the insistence of appellant himself, the fact would not have come before the jury. Appellant cannot initiate error and then seek reversal based on that error. Gagnon v. State, 212 So.2d 337 (Fla.3d DCA 1968); Borst v. Gale, 99 Fla. 376, 126 So. 290 (1930).

Later that evening, after appellant had informed the sheriff that he wished to speak to a lawyer, but before a lawyer was summoned, appellant asked to speak to the chief investigator concerning the charges against him. At this time, appellant was again advised of his rights, whereupon he proceeded to make a statement. Although appellant denied any involvement in the murders for which he was later tried, the substance of the statement was damaging because it was inconsistent with prior statements. Appellant contends that the trial court erred in admitting the statement into evidence. We find no authority to uphold his position. There is nothing in the record to indicate that the interrogation by the sheriff did not cease once appellant requested an attorney. The decision to have a lawyer is not irrevocable. If the evidence shows, as it does in this case, that a defendant voluntarily seeks out a law enforcement officer to make a statement, after being fully advised of his rights on two occasions, he may do so, thereby waiving the protection afforded by Miranda. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), wherein the United States Supreme Court held that a statement given by defendant to an investigating officer was admissible even though the defendant had asserted his right to remain silent during an earlier interrogation that same day.

Having determined that no reversible error has been made to appear which would require a new trial, we proceed to examine the sentence imposed.

In the trial court’s written findings, upon which the sentence of death was based, the Court considered as a separate aggravating circumstance the fact that the murder of Mrs. Butler was committed for pecuniary gain [Section 921.141(5)(f), Florida Statutes (1973)] while appellant was engaged in the commission of a robbery [Section 921.141(5)(d), Florida Statutes (1973)]. We have held that this procedure constitutes error, at least where mitigating circumstances are present. Provence v. State, 337 So.2d 783 (Fla.1976). Where there is a doubling up of aggravating circumstances, but no mitigating circumstances, as is the case here, a sentence of death may be upheld. Elledge v. State, 346 So.2d 998 (Fla.1977).

Accordingly, the judgment is affirmed and the sentence of death upheld.

It is so ordered.

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

HATCHETT, J., concurs specially with an opinion.

BOYD, J., concurs in part and dissents in part with an opinion.

HATCHETT, Justice,

concurring specially-

In Spenkelink v. State, 350 So.2d 85 (Fla.1977), I expressed by belief that Section 921.141, Florida Statutes (1975), is unconstitutional on its face and as applied. Both the United States Supreme Court and this Court have held otherwise. I see no purpose to be served by reiterating my views in future cases where the death penalty is imposed.

BOYD, Justice,

concurring in part, dissenting in part.

I concur in affirmance of the judgment of guilt. I dissent to upholding the sentence because of the improper doubling of the aggravating circumstances. Provence v. State, 337 So.2d 783 (Fla.1976).

In a case where the stakes, life or death, are so great, I cannot treat that mistake as lightly as does the majority. I do not read Elledge v. State, 346 So.2d 998 (Fla.1977), to hold otherwise. The existence of unknown mitigating circumstances in Elledge and the finding of none by the trial judge here is not a sufficient basis, to my mind, for not applying the Elledge reasoning. The following, from Elledge, summarizes my view,

Would the result of the weighing process by both the jury and the judge have been different had the impermissible aggravating factor not been present? We cannot know. Since we cannot know and since a man’s life is at stake, we are compelled to return this case for a new sentencing trial at which the [impermissible factor] will not be considered. Elledge, at 1003.

I would vacate the sentence of death and remand for a new sentencing proceeding.

      . Appellant was also convicted of robbery and kidnapping for which he received the following sentences: life imprisonment on the robbery charge and 15 years on the kidnapping charge.

      . Q All right, Sheriff, at this point did you show the defendant, this defendant, Carl Jackson, this is the defendant that you were talking to, right here? (Indicating.)
      A Yes, sir.
      Q Did you show Carl Jackson anything?
      A Yes, sir.
      Q All right, I show you State’s Exhibit Number One for Identification and ask you if you can identify that?
      A Yes, sir, this is a brown jacket which I took out of a bag and handed it toward Carl Jackson, and he said — I said, “Is this your jacket?” And he said, “That’s my jacket.”
      Q If the Court please, we move to introduce the jacket as State’s Exhibit Number One for Identification into evidence.
      THE COURT: Do you desire to cross examine the witness?
      MRS. COSTELLO: One moment, Your Hon- or.
      THE COURT: Well, the Court will withhold ruling until the defendant has had the opportunity to cross examine the witness.
      MR. JONES: You may inquire.
      CROSS EXAMINATION BY MRS. COSTELLO:
      Q How do you know this is the jacket that you showed Carl Jackson?
      THE WITNESS:
      A I initialed it, and the date, right here. Here are my initials and the date. (Indicating.)
      Q Okay, and you put those on at that time?
      A Yes, Ma’am.
      Q Mr. Jackson said that was his jacket?
      A Yes, Ma’am.
      Q He had previously denied having a jacket, is that correct?
      A Yes.
      Q That was not in question and answer form, was it?
      A Repeat that, please, Ma’am.
      Q Sheriff, you just read the statement to the jury you say you took from Mr. Jackson. They were in question and answer form, is that correct?
      A Yes.
      Q And in that statement Mr. Jackson denied having a jacket, is that correct?
      A There’s two situations. He said he was wearing a jacket on one question in this statement, and then another one he said he wasn’t wearing a jacket.
      Q All right. Why wasn’t this oral statement taken down and recorded by the stenographer?
      A It was.
      Q Not in question and answer form, was it?
      A This—
      Q The part where you say he admits that’s his jacket, that particular jacket?
      A I see what you’re getting at. When I asked — he answered the question, “Why are you trying to say something?” And the question, it wasn’t really a question, it was a statement, “I want to talk to you about those two women that were murdered.”
      Q At that point, that was the period where the stenographer stopped taking down questions and answers in that form, is that correct?
      A Right. 1 reached down, there was a bag sitting at my feet, between Mr. Jackson and myself. I reached down and pulled this jacket out of the bag and handed it toward him, unfolded it, and said, “Is this your jacket?”
      Q I understand that was your statement.

        MR. JONES: Let the sheriff finish his explanation.
      MRS. COSTELLO: I don’t think he’s responding to the question.
      THE COURT: Go ahead and proceed.
      THE WITNESS:
      A What do you want me to do now?
      (Laughter.)
      THE COURT: Ladies and gentlemen, we are very happy to have all of you here in court. This is your court. You have a perfect legal right to be here. We want you here to see your court in operation. A man is on trial for his life here today. This is a very serious matter. There’s nothing funny about it. Now, this is several times that we’ve had to have order in the courtroom. We do not wish to clear the courtroom. We wish to have you here so that you may see your court in operation. But, you must realize this. You must conduct yourselves accordingly. You may proceed.
      MRS. COSTELLO: Thank you, Your Honor. Sheriff, I would just like for you to explain why the form that you had previously followed, asking questions and receiving responses that were recorded by the stenographer, why that was stopped.
      THE WITNESS:
      A The statement says—
      Q Sheriff, I don’t think—
      THE COURT: Let him finish his answer.
      THE WITNESS:
      A I’m just reading the statement. The statement says — the suspect, at this point, said he didn’t know anything about what we were talking about. At this point I pulled the jacket out. I said — at this point I pulled out a tan jacket from the bag and unfolded it and asked if that was his jacket. The suspect said it was, and 1 asked him where he left it and he said that he left it in the car. At this point, he said, “I want a lawyer.”

      .The Court finds, from the evidence, that sufficient aggravating circumstances exist as enumerated in Subsection (5) of Section 921.141, Florida Statutes, that justify a sentence of death, and that there are insufficient mitigating circumstances, as enumerated in Subsection (6) of said Section 921.141, to outweigh the aggravation circumstances. The aggravating circumstances found by the Court are as follows:
      1. The murder of ANN PATTERSON BUTLER was committed while the Defendant was engaged in commission of a robbery.
      2. The murder of ANN PATTERSON BUTLER was committed for pecuniary gain.
      3. The murder of MARY FRANCES PRICE was committed while the Defendant was engaged in flight after committing a robbery.
      4. The murder of MARY FRANCES PRICE was committed while the Defendant was engaged in the commission of the crime of kidnapping.
      5. It is the Court’s opinion, from the evidence, that both of the aforesaid capital felonies were committed for the additional purpose of avoiding a lawful arrest.


source: Caselaw Access Project

author: SUNDBERG, Justice, BOYD, Justice,

license: Public Domain

text:
    In re Petition of POST-NEWSWEEK STATIONS, FLORIDA, INC., for change in code of judicial conduct.
    No. 46835.
    Supreme Court of Florida.
    July 5, 1978.
   On consideration of the Motion for Rehearing [of Fla.App., 358 So.2d 1360] and Alternative Motion for Expedited Proceedings filed by Petitioner, POST-NEWSWEEK STATIONS, FLORIDA, INC., and the Petition for Rehearing filed by SUNBEAM TELEVISION CORPORATION,

IT IS ORDERED by the Court that said Motion and Petition be and the same are hereby denied.

ENGLAND, C. J., and OVERTON, HATCHETT and ALDERMAN, JJ., concur.

SUNDBERG, J., concurs specially with an opinion with which ENGLAND, C. J., concurs.

BOYD, J., dissents with an opinion.

ADKINS, J., dissents.

SUNDBERG, Justice,

concurring specialty-

Because of a palpable violation of Florida Appellate Rule 3.14 b. providing that petitions for rehearing “must set forth concisely, and without argument, the alleged omissions, oversights, causes or grounds on which it is based” and pursuant to Florida Appellate Rule 3.14 d. providing for the striking of such petition in the event of a substantial violation of any material provisions of the rule, I would strike the applications for rehearing. See Williams v. State, 113 So.2d 833 (Fla.1959); Texas Co. v. Davidson, 76 Fla. 475, 80 So. 558 (1919), and State v. Green, 105 So.2d 817 (Fla. 1st DCA 1958).

ENGLAND, C. J., concurs.

BOYD, Justice,

dissenting.

I would grant the petition for rehearing. This Court should continue the prior order permitting use of cameras in court until conclusion of the matter by the Court.


author: HAVERFIELD, Chief Judge.

text:
    In re ESTATE of Ethel RIFKIN, Deceased. Patricia KOSLOW and Alan Winston, Individually and as Executors, etc., Appellants, v. Harry RIFKIN, Appellee.
    No. 77-1775.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Rehearing Denied July 14, 1978.
    Shalle Stephen Fine, Miami, for appellants.

      Marvin W. Lewis, Miami Beach, for ap-pellee.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   HAVERFIELD, Chief Judge.

Petitioners, Patricia Koslow and Alan Winston, the children of Ethel Rifkin, deceased, appeal a summary final judgment finding that the respondent, Harry Rifkin, as the surviving spouse of Ethel, was entitled to receive the $50,000 specific legacy as provided in her last will and testament in this declaratory judgment action seeking a determination that the marriage between Harry and Ethel is void and, therefore, Harry is entitled to take nothing. under Ethel’s will.

Prior to the marriage of Harry Rifkin and Ethel Winston, they entered into an antenuptial agreement whereby Ethel agreed to bequeath Harry $50,000 upon his surviving as her widower, provided that no proceeding had been instituted for dissolution of marriage or separate maintenance up to the time of her death and the parties were living together as husband and wife. Ethel executed a last will and testament incorporating the above provision of the agreement. Upon Ethel’s demise, they had been living as husband and wife. Her will was admitted to probate and Alan Winston and Patricia Koslow, appellants herein, qualified as the designated co-executors. A court order was entered directing payment of the $50,000 legacy to Harry. Thereafter, Patricia and Alan filed the present petition for declaratory judgment in which they prayed that the marriage between Ethel and Harry be declared void ab initio and Harry be directed to pay back all monies received from Ethel’s estate. The facts giving rise to this action are as follows:

Prior to marrying Ethel, Harry had been married to Renee Davis. Being dissatisfied with this marriage, Mrs. Davis removed herself to Denver, Colorado and after establishing residency there, filed an annulment action. As permitted by Colorado statute, constructive service was made on Harry by publication. Harry did not appear and a decree of annulment which reads in pertinent part was entered:

“THIS CAUSE, having been tried on the 19th day of August, 1971, upon its merits, the plaintiff being represented by Jon F. Kidneigh, attorney of record, and the defendant not appearing in person or by attorney; and the Court having examined the record herein, finds that it has jurisdiction, and having considered the evidence and statements of counsel FINDS:
“That an annulment should be granted to the plaintiff upon the statutory grounds of fraud in the inducement to marry, and that plaintiff should be returned to her name of Renee Davis; THEREFORE
“IT IS ORDERED, ADJUDGED AND DECREED that an annulment be granted to the plaintiff and the marriage between plaintiff and defendant is hereby dissolved and plaintiff is returned to her former name of Renee Davis.
“IT IS FURTHER ORDERED that this Court retains such jurisdiction of this action as is conferred by law.”

In their petition for declaratory judgment, Patricia and Alan contend that the marriage between Harry and Renee was unlawfully annulled, that they are still legally married to one another and consequently the marriage of Harry to Ethel, the decedent, was null and void. In support of this contention, Patricia and Alan allege (1) in an annulment action, personal service is required notwithstanding the Colorado statute providing for constructive service because annulment is an in personam action as held by the Colorado Supreme Court in Owen v. Owen, 127 Colo. 359, 257 P.2d 581 (1953); (2) the Colorado annulment statute provides that the action must be brought within one year after the discovery of the grounds and the action by Renee Davis was brought more than a year after the discovery of the grounds; and (3) Renee Davis was not a domiciliary of the State of Colorado. Harry answered denying the invalidity of the Colorado annulment decree and pled as affirmative defenses full faith and credit and lack of standing of Patricia and Alan to collaterally attack the Colorado annulment decree. Pretrial discovery ensued and both parties filed motions for summary judgment. An affidavit in opposition to Alan’s and Patricia’s motion for summary judgment was filed by Renee Davis who alleged therein that she was a bona fide resident of Denver, Colorado for two years and after her separation from Harry, she did not know where he was residing. In addition, affidavits were filed by two Colorado attorneys who stated that since the enactment of Section 46-3-8 of the Colorado Revised Statutes (1963), Owen v. Owen, supra is no longer the law. After several hearings, the trial court ruled that the Colorado annulment decree be given full faith and credit and decreed that as surviving spouse Harry was entitled to receive the specific legacy provided for in Ethel’s will. Thereupon, final summary judgment was entered in his favor. Patricia and Alan appeal.

Their first contention is that the court erred in upholding the validity of the Colorado annulment statute because in Owen v. Owen, supra, the Colorado Supreme Court held that annulment is an in personam action requiring personal service as opposed to an action in rem and this matter being one for judicial not legislative determination, the Colorado legislature could not void this determination by enacting the subject annulment statute designating an annulment proceeding as an action in rem (permitting constructive service) and, therefore, the statute is invalid. We find this point lacks merit.

It would be entirely inappropriate for this court to pass upon the validity of a Colorado statute. It also appears the validity of the annulment statute has been upheld in Young v. Colorado National Bank of Denver, 148 Colo. 104, 365 P.2d 701 (1961) and Edwards v. Edwards, 481 P.2d 432 (Colo.App.1970).

Where a statute specifically authorizes constructive service upon a non-resident defendant in an action for annulment of a marriage, the court has power to entertain the action upon constructive service on the non-resident defendant. See 4 Am. Jur.2d, Annulment of Marriage § 65 (1962) and Annot. 43 ALR 2d 1086, 1095 (1955).

Last, constructive service in an action for annulment of marriage does not contradict the public policy of this state as our own statutes so provide. See Section 49.011(4), Florida Statutes (1975).

For their second point on appeal it is urged that the action for annulment was not brought by Renee Davis within one year of the discovery of the fraud as required by the annulment statute and, therefore, the action was barred by the statute of limitations.

We conclude this point lacks merit as the defense of the statute of limitations is personal to the defendant who may waive it by failure to impose it timely. See Schoolfield v. School Dist. No. 1 in Custer County, 101 Colo. 56, 70 P.2d 353 (1937).

Finally, we find that the underlying issue which is dispositive of this case is “full faith and credit”. It is well established law that every state is required to recognize and respect the valid final decrees and orders of the courts of all other states. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942). Further, a decree of any state is presumed valid and ordinarily will be honored in any state where an attempt is made to bring suit on the same cause of action. Newton v. New ton, 245 So.2d 45 (Fla.1971). The Colorado court having had jurisdiction over the subject matter and the parties and the annulment decree being otherwise regular on its face, the trial court correctly determined that the decree was entitled to full faith and credit. See 19 Fla.Jur., Judgments and Decrees §§ 343-4 (1958).

Summary judgment affirmed.

      . Section 46-3-8: “Suits for annulment or determination of marital status shall be actions in rem, effecting a specific status. The process, practice, and proceedings shall be in accord-anee with the Rules of Civil Procedure, for other civil actions, in rem, affecting a specific status.”


author: BOYER, Judge.

text:
    GOODYEAR TIRE & RUBBER CO., Petitioner, v. Ramon A. COOEY, Respondent.
    No. EE-460.
    District Court of Appeal of Florida, First District.
    June 23, 1978.

      Robert M. Ervin, and Thomas M. Ervin, Jr. of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, W. Brantley Brannon of Bran-non, Brown, Norris, Vocelle & Haley, Lake City, for petitioner.
    Don Dansby and Bishop Dansby, of Dans-by & Dansby, Perry, W. K. Whitfield, Edgar C. Booth, Tallahassee and Stephen Kur-vin, Panama City, for respondent.
   BOYER, Judge.

Petitioner, Goodyear Tire and Rubber Co., hereinafter Goodyear, seeks review by common law certiorari of an interlocutory discovery order entered by the trial judge dated January 7,1977. The case involves an alleged tire failure which allegedly caused an accident resulting in the death of one Victor MacDonald, of whose estate respondent Cooey is administrator.

In response to motions filed by Cooey the trial judge, after hearing, entered the order here appealed which requires the alleged manufacturer of the tire, Goodyear, to produce a long list of items, particularly documentation, at Goodyear’s place of business for inspection by plaintiff’s counsel and an expert witness employed by the plaintiff. The order also requires that the expert be allowed to enter Goodyear’s tire plant located at Union City, Tennessee for the purpose of inspecting the processes, procedures and equipment used in the production of tires substantially identical to or similar to the tire which allegedly failed. The order specifically provides that “subject to the contempt power of this court, plaintiff’s expert, * * * shall never in any way, form or manner, except when required to testify during the trial of this case, disclose or divulge any information obtained” as a result of such discovery.

The order was entered over the objection of the defendant, Goodyear, who alleged in the trial court and now here that the information sought constitutes trade secrets, that inspection of the plant will reveal trade secrets, that the discovery with reference to documentation is burdensome in that it will cost Goodyear no less than $20,-000.00 to comply and that no necessity has been shown or can be shown for the divulging of such information.

It is well established that interlocutory orders rendered in connection with discovery proceedings may be reviewed by common law certiorari when the petitioner can demonstrate that the order complained of does not conform to the essential requirements of law and may cause material injury through subsequent proceedings for which remedy by appeal will be inadequate. (West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975)) The reason for such a holding was succinctly stated in Boucher v. Pure Oil Company, 101 So.2d 408 (Fla. 1st DCA 1958) wherein the author of that opinion said:

“ * * * If plaintiff is wrongfully required to answer defendant’s interrogatories, she is beyond relief. We conceive no means by which on appeal this court could extract such knowledge, once gained, from the mind of the defendant, for truly ‘the moving finger having writ moves on nor any appeal shall lure it back to cancel half a line.’ ” (101 So.2d at page 410)

To the same effect is Marine Investment Company v. Van Voorhis, 162 So.2d 909 (Fla. 1st DCA 1964) and Meiklejohn v. American Distributors, Inc., 210 So.2d 259 (Fla. 1st DCA 1968).

We have jurisdiction.

Fla.R.Civ.P. 1.350, allows discovery of documents and inspection of premises without prior leave of court or the showing of good cause. So far as here material, that rule provides as follows:

“(a) Request; Scope. Any party may request any other party (1) to produce and permit the party making the request, * * * to inspect and copy any designated documents, * * * that constitute or contain matters within the scope of Rule 1.280(b) and that are in the possession, custody or control of the party to whom the request is directed; or * * (3) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing or sampling the property or any designated object or operation on it within the scope of Rule 1.280(b).”

Rule 1.280(c), so far as here material, states:

“Upon motion by a party * * * and for good cause shown, the court * * * may make any order to protect a party * * * from annoyance, * * * or undue burden or expense that justice requires, including * * * (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; * * * ”

It is clear therefore that while there is no initial burden upon the party seeking discovery to demonstrate the need therefor, a resisting party or a party seeking a protective order has the burden of showing “good cause”. However, the matter does not end there. Once the party seeking a protective order has shown good cause therefor the party seeking the discovery then has the burden, if discovery is to be nevertheless allowed, of demonstrating reasonable necessity. In Adkins, Florida Civil and Criminal Discovery, at page 42, it is acknowledged that while the discovery of trade secrets is within the discretion of a court, great care must be taken in ordering any such disclosure to avoid abuse of that discretion, and the court should limit such disclosure as much as possible. To the same general effect is 98 C.J.S. Witnesses § 446b, Trade Secrets, at page 279, wherein it is stated:

“If disclosure will depreciate its value, a witness has a qualified, but not an absolute, privilege of refusing to disclose a trade secret; he should not be compelled to disclose such secret where to do so is not essential to the ends of justice, * * ”

In 27 C.J.S. Discovery § 5, Privilege of Witness and Privileged Matter, at page 16, the general rule is stated as follows:

“Trade secrets. Disclosure of trade secrets is not required on discovery except in such cases and to such extent that the disclosure is indispensable to the ascertainment of the truth.”

The public policy may be found in F.S. 90.506, recently adopted by the legislature, which, however, does not become effective until July 1, 1978. That statute provides:

“A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by him if the allowance of the privilege will not conceal fraud or otherwise work injustice. When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require. The privilege may be claimed by the person or his agent or employee.”

The conditions for the exercise of a court’s power to compel discovery of trade secrets and secret processes, and whether that power should be exercised at all, is governed by the facts of each case. Ray v. Allied Chemical Corp., D.C.N.Y.1964, 34 F.R.D. 456.

The evidence sub judice reveals that the Goodyear plant located at Union City, Tennessee is one of the company’s most modern plants, employing many recent developments and trade secrets, most of which are not even patented for the fear of loss of secrecy. The testimony reveals that many of those secrets are immediately discoverable by any expert allowed unrestricted access to the plant. The evidence does not reveal that tires reasonably similar to the one involved in this case are manufactured at that plant. The subject order requiring petitioner to allow respondent’s expert to enter said plant for the purpose of inspecting, the processes, procedures and equipment there is restricted only by the words “engaged in producing the Goodyear Custom Steel Guard Radial Tire or tires substantially identical or similar in construction.” There is no finding that in fact the equipment located in that plant is used “in producing the Goodyear Custom Steel Guard Radial Tire or tires substantially identical or similar in construction” to the tire involved in this case. Neither does the evidence reveal the necessity for such access and inspection. In short, without holding that the plaintiff is not entitled to access to said plant, we do find that a sufficient predicate of reasonable necessity has not been laid and that the challenged order is overbroad.

Petitioner also questions the propriety of requiring it to allow in its plant an expert who was formerly an executive of one of its major competitors, who does not reside in the State of Florida and who will not be, after completion of this case, subject to the jurisdiction of a Florida court; pointing out that under such circumstances the requirement of secrecy on pain of contempt is of little enforceability and comfort. While we appreciate petitioner’s concern, we are not prepared to hold that the trial judge erred in requiring that the expert have access, under reasonable conditions and restrictions, to those portions, if any, of petitioner’s plant which contain equipment or reveal procedures reasonably relevant to the issues in this case. (See Rule 1.280(b)(1) Fla.R.Civ.P.) We do hold, however, as above stated, that the order appealed is overly broad and lacking in sufficient specificity, conditions and safeguards.

The same overbreadth, lack of specificity and finding of necessity is equally applicable to that portion of the order granting respondent’s motion to produce. Indeed, the record reflects that on numerous matters and in numerous instances respondent’s expert himself testified that the requests were overbroad and sought information not reasonably necessary or relevant.

Petitioner’s assertion that the production of documents required by the court’s order is overly burdensome, is valid only in so far as the order requires, as a result of overbreadth and lack of specificity and the finding of necessity as above mentioned, production of irrelevant or unnecessary materials. The mere fact that compliance with the court’s order will be costly is not, in and of itself, a ground for valid objection.

The petition for certiorari is granted, the challenged discovery order quashed, and the case is remanded for further proceedings consistent herewith.

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


author: PER CURIAM. HUBBART, Judge

text:
    William T. BURNS, III, Appellant, v. CONSOLIDATED AMERICAN INSURANCE COMPANY et al., Appellees.
    No. 77-1381.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.

      Krongold, Bass & Rosen and Paul H. Bass, Coral Gables, for appellant.
    Corlett, Merritt, Killian & Sikes, Greene & Cooper and Sharon Wolfe, Miami, Walsh, Kahn & Gustafson and Michael K. Gray, Fort Lauderdale, for appellees.
    Before BARKDULL and HUBBART, JJ., and PARKER, J. GWYNN (Ret:), Associate Judge.
   PER CURIAM.

This is an appeal by an insured, William T. Burns, III [Burns], plaintiff in the trial court, from a final summary judgment rendered in favor of defendants, Consolidated American Insurance Company [Consolidated], the insurer, and Kenneth E. Willits and Willits Insurance Agency, Inc. [Willits], the agent who placed the insurance policy, coverage under which is contested herein. We are asked to determine whether summary judgment was properly rendered in view of the following facts.

In January, 1975, when he was building a new home, Burns went to Willits, seeking coverage on the premises under construction. The two had dealt with each other previously, and, in 1974, Willits had secured a homeowner’s policy on the home in which Burns then resided. Pursuant to this January, 1975 meeting, Willits procured for Burns a second policy, substantially identical to the first, covering the house under construction. Both policies were issued by Consolidated, and both, by their terms, excluded coverage for theft “in or to a dwelling while under construction, or of materials or supplies therefor until completed and occupied.” Prior to the assertion of any claim by Burns, Consolidated communicated with Willits, requesting that the agent notify Burns of the theft exclusion.

In mid-June, 1975, Burns sustained a theft loss at the house under construction. Both sides agree that Willits told Burns after this incident that the policy covering the new home did not cover the theft loss, but that Willits agreed to try to recover something for Burns under the unscheduled personal property coverage of the first homeowner’s policy, if Burns would supply a list of the stolen property. It appears that Burns never supplied the list, and no recovery was had. In mid-July, 1975, Burns sustained a second theft loss on the new house, for which Willits denied coverage.

In September, 1975, Burns filed a complaint against Consolidated, alleging breach of contract and negligence. Consolidated answered, generally denying the allegations except as to the issuance of the policy, and raising, as affirmative defenses, that the policy did not cover the losses incurred, and that the agent was not authorized to commit the company to coverage which was contrary to the terms of the policy. The complaint was later amended to include Willits and his agency as parties defendant, alleging that Willits agreed to cover the new house against theft, and that plaintiff had relied upon Willits’ representations and assurances. By his answer, Willits generally denied these allegations. In 1977, Willits and Consolidated filed separate motions for summary judgment, both of which were granted, after several delays, prior to trial. Consolidated’s motion did not state with particularity any of the grounds upon which it was based.

Burns contends that when he saw Willits in January of 1975 he asked for coverage which would include protection against the risk of theft on the home being constructed. Willits denies this, contending that only a specific amount of coverage was discussed. Moreover, Willits contends that he told Burns, before any loss occurred, that theft coverage was excluded from the policy on the new house while it was being built. Burns denies this.

Two facts are uncontroverted: The policy at issue excludes coverage for theft on the home under construction; and Burns was informed of this exclusion prior to the second theft loss.

By this appeal plaintiff urges that two errors were committed in the rendition of summary judgment. First he asserts that, formally, defendant Consolidated’s motion for summary judgment was insufficient to support the order rendered. It did not meet the requirements of Florida Rule of Civil Procedure 1.510(c) in that it failed to state with particularity the grounds upon which it was based and the substantial matters of law to be answered.

As to this point, Consolidated correctly points out that this issue was raised for the first time on appeal. Since plaintiff never raised in the trial court the question of whether Consolidated’s motion complied with the requirements of the rule, and never objected to the entry of summary judgment on this ground, any error pertinent thereto was waived. See Bernard Marko & Associates, Inc. v. Steele, 230 So.2d 42 (Fla.3d DCA 1970); Frank v. Pioneer Metals, Inc., 121 So.2d 685 (Fla.3d DCA 1960).

Moreover, the purpose of the rule is to put the opposing party on notice as to the grounds which will be asserted against him. In the instant case, plaintiff was aware of the grounds before the motion was decided and therefore suffered no prejudice, so that any error would have been harmless. This argument is without merit.

Plaintiff’s second assertion of error reaches the heart of the matter for he contends that summary judgment was erroneously granted because genuine issues of material fact remain disputed. We agree, but it is necessary to separate the circumstances which require reversal from those which do not.

Because both sides agree that Willits informed Burns of the exclusion prior to the second theft loss, summary judgment was properly granted in favor of both defendants as to this aspect of the cause. Burns is not entitled to any recovery on this loss when he admittedly knew the policy he owned did not cover the risk encountered. An agent who agrees to obtain insurance, and, through his own fault or neglect, fails to do no, may be liable in damages, but if, after diligent effort, the agent is unable to procure the requested coverage, his only duty is to inform the party of his inability within a reasonable time. Cat ’N Fiddle, Inc. v. Century Insurance Company, 200 So.2d 208 (Fla.3d DCA 1967), vacated on other grounds, 213 So.2d 701 (Fla.1968), modified and conformed, 214 So.2d 503 (Fla.3d DCA 1968). Failure of an insured to take appropriate action when he.becomes aware that the coverage he thought he had was not obtained by the agent constitutes both a waiver of his right to performance under an alleged oral contract and an estop-pel against his right to assert the claim under the alleged oral agreement. First National Insurance Agency, Inc. v. Leesburg Transfer & Storage, Inc., 139 So.2d 476 (Fla.2d DCA 1962).

We turn next to the question of whether summary judgment was appropriate as to the first claim. Defendant Willits admits that the parties disagree on whether or not Burns specifically requested theft coverage on the house under construction, but contends that affirmance is nonetheless proper because Burns filed a supplemental affidavit after final summary judgment had been rendered. We regard this argument as immaterial since the record reveals an earlier affidavit by Burns, timely filed, which indicates that Burns indicated to Wil-lits at the time the second policy was ordered, his intent that the policy cover “all perils.” The question of what coverage was requested, singularly material to the cause of action against the agent, remains in dispute. Therefore, summary judgment should not have been rendered in favor of Willits on the claim of loss arising from the first theft incident.

The problem of whether summary judgment was properly entered in favor of Consolidated on the first theft loss is somewhat more complex. Consolidated contends that the trial court was correct in granting summary judgment in its favor because the policy unambiguously excludes theft coverage on the house under construction. (The policy also provides that its terms may only be modified or waived by a written instrument, and no such writing exists.) The company asserts that the doctrines of waiver and estoppel cannot be utilized to create coverage for a risk which is expressly excluded by the terms of the policy.

As a general statement of law, Consolidated is correct in asserting that an agent’s representations as to coverage cannot operate by way of estoppel to create coverage where the terms of the policy are unambiguous. Hydraulic Equipment Systems and Fabrication, Inc. v. Pennsylvania Millers Mutual Insurance Company, 277 So.2d 53 (Fla.3d DCA 1973). See also Unijax, Inc. v. Factory Insurance Association, 328 So.2d 448 (Fla.1st DCA 1976); Six L’s Packing Company, Inc. v. Florida Farm Bureau Mutual Insurance Co., 268 So.2d 560 (Fla.4th DCA 1972); Johnson v. Dawson, 257 So.2d 282 (Fla.3d DCA 1972); State Liquor Stores # 1 v. United States Fire Insurance Co., 243 So.2d 228 (Fla.1st DCA 1971).

But the situation before us cannot be resolved on the basis of broad statements of law which do not take into account the mixed questions of law and fact presented by the instant ease. The record reveals that the insurer requested that Willits notify Burns of the theft exclusion before any loss occurred. This fact raises two unresolved questions of fact: Whether the company’s notice to Willits was in fact conveyed to Burns. See generally, Cat ’N Fiddle, Inc. v. Century Insurance Company, 213 So.2d 701 (Fla.1968); Whether the company itself was aware of the coverage allegedly requested by Burns. While estoppel cannot be invoked to create coverage clearly excluded by a written contract of insurance, the concept may be utilized against an insurer when its conduct has been such as to induce action in reliance on it. Mutual of Omaha Insurance Company v. Eakins, 337 So.2d 418 (Fla.2d DCA 1976).

Questions of fact as to the requested coverage and the existence vel non of an oral contract of insurance which included terms other than those specified in the written policy remain unresolved. A parol contract to insure may be enforced against a principal as long as all the elements of a written contract are proven. Collins v. Aetna Insurance Company, 103 Fla. 848, 138 So. 369 (1931). The rendition of summary judgment at this point in the proceedings precluded proof of the existence of these elements. An insurer may be liable for coverage not included in a written contract if its agent failed to provide it or to notify the insured that such coverage was excluded from the policy issued. Emmco Insurance Company v. Marshall Flying Service, Inc., 325 So.2d 453 (Fla.2d DCA 1976). See also Liberty Mutual Fire Insurance Company v. Sanderman, 286 So.2d 254 (Fla.3d DCA 1973); Durbin Paper Stock Company v. Watson-David Insurance Company, 167 So.2d 34 (Fla.3d DCA 1964).

If such a parol contract existed, the issue is not one of estoppel creating coverage, but one of estoppel to deny the existence of an oral contract creating coverage. Was an oral contract, different from the written contract, created at the time coverage was sought on the second house? Since material questions of fact remain unresolved, summary judgment should not have been rendered in favor of the insurer vis-a-vis the first claimed theft loss. Therefore, the summary judgments rendered in favor of both defendants on the first claim of loss is reversed.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this holding.

HUBBART, Judge

(concurring in part; dissenting in part).

I concur in the court’s opinion and disposition of this case except insofar as the court reverses the trial court’s entry of the final summary judgment in favor of the defendant Consolidated American Insurance Co. on the plaintiff’s first theft loss claim. I dissent solely as to the latter disposition.

There is clearly no insurance coverage under Consolidated American’s insurance policy on either the plaintiff’s first or second theft loss claim. And in my judgment there is clearly no parol contract of insurance between Consolidated American Insurance Co. and the plaintiff which covers the plaintiff’s first theft loss claim. The fact that Consolidated American Insurance Co. requested that the defendant Willits notify the plaintiff of the theft loss exclusion in the instant insurance policy prior to the assertion of any claims herein in no way raises a genuine issue of material fact as to the existence of such a parol contract of insurance. State Farm Fire and Casualty Co. v. Hicks, 184 So.2d 685 (Fla.2d DCA 1966).

The entry of the final summary judgment in favor of Consolidated American Insurance Co. on the basis of no insurance coverage as to both theft loss claims herein was accordingly correct and should be affirmed.


author: PER CURIAM.

text:
    William B. MILLS, as Trustee under the Last Will and Testament and Codicils thereto of Alfred I. duPont, Deceased, Appellant, v. Edward BALL, J. C. Belin, T. S. Coldewey, Alfred duPont Dent, W. L. Thornton, Florida First National Bank of Jacksonville, as Trustees under the Last Will and Testament and Codicils thereto of Alfred I. duPont, Deceased, T. Edward Austin, Jr., State Attorney in and for the Fourth Judicial Circuit of the State of Florida and the Nemours Foundation, a corporation organized under the laws of Florida, Appellees.
    No. II-50.
    District Court of Appeal of Florida, First District.
    June 30, 1978.

      John H. Wilbur and Christine Rieger Milton, of Milam & Wilbur, Jacksonville, for appellant.
    Claude Ogilvie, Jacksonville, for appellee, The Nemours Foundation.
   PER CURIAM.

This is an interlocutory appeal from an order of the trial court denying a motion of appellant, William B. Mills (a defendant below) to dismiss and to strike a cross-claim filed by appellee, The Nemours Foundation, (a defendant below) and treating the cross-claim as affirmative defenses. This is a declaratory judgment action which was brought by Edward Ball and other trustees under the Last Will and Testament and Codicils of Alfred I. duPont, deceased, against Mills, also a trustee under said Will and Codicils. The Nemours Foundation, beneficiary under the aforesaid Will and Codicils was also made a defendant in the cause. The petition for declaratory judgment of Ball and other trustees seeks a judicial declaration as to the validity of an increase in the number of trustees and the actions of the trustees — Ball contending that the trustees were validly selected and their actions were legal and Mills contending to the contrary. By its cross-claim which the trial court designated and treated as affirmative defenses, Nemours, in support of the validity of the selection of the additional trustees and their acts subsequent thereto, raises questions of estoppel, waiver, and res judicata against Mills’ contention to the contrary. In a sense these affirmative defenses are directed to Mills, but in reality they are directed to the cause of action itself and are questions which should properly be ruled upon in this proceeding. While this pleading in this declaratory judgment action is not in compliance with strict rules of pleading, we consider, as did the trial judge, that these are questions which Nemours should be allowed to raise and have determined in this suit. The ruling of the trial court is, therefore,

AFFIRMED.

McCORD, C. J., MILLS, J., and McLANE, RALPH M., Associate Judge, concur.