text:
    BARBA INVESTMENT COMPANY, Arthur G. Henrichs and Lois G. Henrichs, Appellants, v. William D. WALKER et al., et ux., Appellees.
    No. DD-26.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1977.
    Rehearing Denied Oct. 25, 1977.

      Thomas M. Brady, of Wells, Brown, Ca-tón & Brady, Pensacola, for appellants.
    Joe J. Harrell, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appel-lee.
   ERVIN, Judge.

Barba and the Henrichs appeal a judgment entered in favor of appellees involving a boundary dispute between the parties. The dispute concerns the location of the original monument marking the common corner to Sections 17, 18, 19 and 20 of Township 2 South, Range 27 West. The appellants maintain the appellees’ newly constructed fence line encroaches on the west 120.9 feet of their property. The appellant Barba contends the appellees’ fence line encroaches on the northerly 109.55 feet of its property. The following is a rough sketch, obviously not drawn to scale, showing the section lines, the parties’ properties and the disputed corner:

There are two monuments marking the disputed corner. One was set by Lige Williams who had surveyed a subdivision in the area known as Sandy Cove in 1953. Appel-lees rely upon his monument as the "correct corner location. The second monument was set by W. H. Baskerville in 1962 and was relied upon by Barba’s surveyor, one Benson, in the platting of a subdivision in 1970. In 1972 appellees erected their fence based upon the opinion of one Oscar Pittman, a surveyor, who also had relied upon the survey of Williams. For point of clarity the following sketch roughly illustrates the location of the two disputed monuments:

Since the primary dispute pertains to the determination of the original location of the United States government survey monument for the corner which is common to Sections 17, 18, 19 and 20, the resolution of the question turns upon whether, in view of accepted surveying principles, the corner is lost or obliterated. Since there is no dispute that the original monument is missing, it is necessary to retrace the original survey whenever possible, since it cannot be disregarded or needlessly altered after property rights have been acquired in reliance upon it. Akin v. Godwin, 49 So.2d 604 (Fla.1950); Parish v. Spence, 149 So.2d 58 (Fla. 1st DCA 1963).

In order to reestablish the original position of the subject corner monument, a dependent survey is required which contemplates “a retracement and reestablishment of the lines of the original survey in their true original positions according to the best available evidence of the position of the original corners.” United States Department of the Interior, Bureau of Land Managements and the Manual of Surveying Instructions, Sections 6-1, 6-4. An obliterated corner is defined in the manual as a point at which there are no remaining traces of the monument or its accessories, but whose location has been perpetuated, or, the point for which may be recovered beyond reasonable doubt by the acts and testimony of the interested land owners, competent surveyors, other qualified local authorities or witnesses, or by some acceptable record evidence. Manual, Section 5-9. A lost corner, on the other hand, is defined as a point whose position cannot be determined beyond reasonable doubt, either from traces of the original marks or from acceptable evidence or testimony that bears upon the original position and whose location may be restored only by reference to one or more interdependent corners. Manual, Section 5-20.

In the trial court’s final judgment, entered in favor of appellees, no findings of fact or conclusions of law were stated, therefore we do not know from the judgment whether the court considered the corner obliterated or lost. Nevertheless we have determined from the record that the corner common to Sections 17,18,19 and 20 was by necessity a lost corner. There were no remaining traces of the monument, nor was there collateral evidence presented which recovered the lost position beyond a reasonable doubt. The only surveyor who testified on behalf of appellees was Oscar Pittman who stated that the 1953 survey by Lige Williams was a correct location of the 1829 monument. There is nothing, however, in the record concerning why the Williams marker was placed where it was in 1953. Pittman’s entire survey effort was based upon the assumption that the missing corner monument was an obliterated corner as opposed to a lost corner. No evidence was presented to the trial court which would relate the monument so placed by Williams to anything which predated 1953. The concrete monument located in 1953 is hardly a perpetuation of the original government monument as required by the definition of an obliterated monument. Nor was the collateral evidence presented sufficient to reestablish the original location beyond a reasonable doubt.

The placement of the Baskerville monument, of the two later surveys, more closely corresponded to the government field notes than did Williams’. For example, the original notes reflected that the disputed corner was placed 5,273.4 feet west of a proven corner which was common to Sections 16, 17, 20 and 21. Baskerville’s monument was placed the exact same distance west of the proven corner, i.e., 5,273.4 feet, while Williams’ monument lies approximately 5,153.4 feet west. Moreover the government field notes described the disputed corner’s location as being positioned in the swamp 20 feet east of a creek. Baskerville’s monument lies 44 feet east of the creek in a swamp, whereas the monument placed by Williams lies not in the swamp but on ground eight feet higher than the Basker-ville monument.

The lower court might have been troubled by the testimony of appellees’ surveyor who stated that the boundaries of property owners not involved in the dispute would be shifted if the Baskerville monument was accepted as the true corner. Nevertheless, persons with lands not abutting on a disputed boundary may not be joined as parties to the boundary dispute. Stark v. Marshall, 67 So.2d 235 (Fla.1953); Gibson v. Wright, 179 So.2d 245 (Fla. 1st DCA 1965).

In reversing the trial court’s judgment for appellees, we are cognizant of the rule that we have no authority to reverse where there is competent substantial evidence in support of the judgment. Still, after considering the record we find there was no competent substantial evidence presented by appellees showing that they attempted a dependent survey in an effort to relocate the position of the lost monument. We hold therefore as a matter of law that the disputed corner was a lost corner which could only be established by a retracing of the original government survey. Since the Baskerville survey was the only one of the two shown to have been a dependent survey, judgment must be entered in favor of the appellants in accordance with the surveys of Benson and Bask-erville.

REVERSED.

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


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    John Wesley HENRY, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-1432 and 76-1433.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.
    Rehearing Denied Oct. 25, 1977.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff and Stuart A. Young, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was indicted for first degree murder as a result of the death of two girls. The jury found appellant guilty as charged and the court sentenced him to two concurrent life terms.

Appellant poses three points for consideration on appeal, only one of which we find warrants discussion. The appellate point referred to states that the trial court “erred in refusing to give a complete and adequate charge when reinstructing the jury, at its request, on the degrees of homicide.”

Initially, the jury was properly instructed on all degrees of unlawful homicide. After the jury retired to commence their deliberations, they sent the trial judge a note stating that they were having a problem understanding the difference between murder in the first degree and murder in the second degree and asking the court to clarify the difference between the two offenses. The judge then, in open court, reinstructed the jury on first and second degree murder only. The court overruled appellant’s objection to the limited reinstruction, and it denied appellant’s request that the court reinstruct the jury on all of the degrees of unlawful homicide. Thereafter the jury found appellant guilty of two counts of murder in the first degree.

It seems to be appellant’s contention that anytime the court reinstructs a jury on any degree of murder or of unlawful homicide the court is required to reinstruct fully on all the degrees of murder, plus manslaughter and justifiable and excusable homicide. In support of this contention appellant cites Hedges v. State, 172 So.2d 824 (Fla.1975); Stills v. State, 272 So.2d 174 (Fla. 1st DCA 1973); Martin v. State, 294 So.2d 414 (Fla. 4th DCA 1974); Brown v. State, 294 So.2d 347 (Fla. 4th DCA 1974); Jackson v. State, 317 So.2d 454 (Fla. 4th DCA 1975).

The leading case relied upon by appellant is Hedges v. State, supra. The question presented to the Supreme Court in that case was:

“[Wjhether a charge defining degrees of homicide, including manslaughter, should likewise include a definition of excusable and justifiable homicide.” 172 So.2d at 825.

Quite logically, the Hedges court points out that in instructing the jury on manslaughter it is necessary to define excusable and justifiable homicide and murder because of the definition of manslaughter.

Manslaughter is defined as:
“The killing of a human being by the act, procurement of culpable negligence of another without lawful justification in cases where such killing shall not be justifiable or excusable homicide or murder.”

In analyzing that definition, the Hedges court said:

“One notes immediately that it is in the nature of a residual offense. If a homicide is either justifiable or excusable it cannot be manslaughter. Consequently, in any given situation, if an act results in a homicide that is either justifiable .or excusable as defined by statute, a not guilty verdict necessarily ensues. The result is that in order to supply a complete definition of manslaughter as a degree of unlawful homicide it is necessary to include also a definition of the exclusions.” 172 So.2d at 826.

The principle to be gleaned from Hedges is that in reinstructing a jury the trial court is not required to once again give the jury the Court’s entire charge. Hysler v. State, 85 Fla. 153, 95 So. 573 (1923), “However, the repeated charges should be complete on the subject involved.” Hedges v. State, supra.

In our opinion a number of the appellate decisions following Hedges have misconstrued the rule announced there and extended it beyond its proper sphere. One example of that is this Court’s opinion in Brown v. State, 294 So.2d 347 (Fla. 4th DCA 1974). In Brown the jury requested further information regarding “murder two” and “murder one”, so the court rein-structed them only on those two degrees of murder. Predictably, the defense requested the court to also reinstruct on third degree murder, manslaughter and excusable and justifiable homicide. The court refused that request. The Brown court, relying upon Stills v. State, supra, held that upon reinstruction of the jury on first and second degree murder the court is required to rein-struct upon the other degrees of murder as well as manslaughter and excusable and justifiable homicide, upon request of the defendant. Failure to comply with the defendant’s request, said the Brown court, left the jury with an incomplete and potentially misleading instruction and constituted reversible error. We now recede from that holding in Brown, since we conclude that both Brown and Stills misinterpreted Hedges. Judge Timothy Poulton’s dissent in Brown recognizes the point we would make here. While a court cannot give a complete instruction on manslaughter without defining excusable and justifiable homicide and murder, we conclude that a court can certainly define first and second degree murder fully without also defining manslaughter. The reason for this conclusion is that, unlike the definition of manslaughter, which definition specifically excludes murder, the definitions of first and second degree murder do not by definition specifically exclude manslaughter. Therefore, a court may completely define first degree murder and second degree murder without making any reference to manslaughter and excusable and justifiable homicide.

In passing, we think it advisable to mention that in Jackson v. State, 317 So.2d 454 (Fla. 4th DCA 1975), the circuit court rein-structed the jury on second and third degree murder and manslaughter, but (at the jury’s suggestion) not on excusable and justifiable homicide. We correctly held there that (because of the reinstruction on manslaughter) the omission of a reinstruction on excusable and justifiable homicide was reversible error.

For the foregoing reasons we find that no reversible error has been demonstrated and the judgment and sentence appealed from is

AFFIRMED.

ALDERMAN, C. J., and ANSTEAD, J., concur.


author: ALDERMAN, Chief Judge.

text:
    Frank BEGEL, Appellant, v. Ira HIRSCH, Appellee.
    No. 76-2518.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.
    Rehearing Denied Oct. 26, 1977.

      Jerome M. Rosenblum, Hollywood, for appellant.
    Jerome F. Pollock, Hollywood, for appel-lee.
   ALDERMAN, Chief Judge.

This is an interlocutory appeal by Frank Begel, the defendant in the trial court, from an order granting a temporary injunction which enjoined him from advertising the name “Frank Begel Bail Bonds” in either Dade or Broward Counties. He was allowed to continue writing bail bonds, but was prohibited from advertising in those counties unless he used a fictitious name. He also appeals the trial court’s denial of his motion for a protective order against a notice to produce. We affirm the temporary injunction and reverse the order denying the motion for a protective order.

In reference to the temporary injunction, Begel raises eight points on appeal. We have considered each of these and find no reversible error.

Begel’s last point, which does not involve the temporary injunction, has merit. The plaintiff, Ira Hirsch, served a notice to produce at deposition which lists, in very broad terms, nineteen categories of items to be produced. The notice recites that the documents sought pertain to the operation of any business by Frank Begel where bonds were written or sold or transacted between 1971 and the present. Some of the items sought are not relevant to the subject matter of this lawsuit, which involves the 1973 sale of Begel’s bond business in Dade and Broward Counties to Hirsch, the operation of a competing business by Begel since 1976, and the alleged injuries caused to Hirsch’s business by Begel.

The trial court erred in denying Begel’s motion for a protective order to the extent that the notice to produce sought production of documents on irrelevant matters. Leonhardt v. Cammack, 327 So.2d 848 (Fla. 4th DCA 1976); Hoogland v. Dollar Land Corporation, Ltd., 330 So.2d 509 (Fla. 4th DCA 1976). The period from 1971, covered by the notice to produce, is too long. The business was not sold to Hirsch until 1973. Furthermore, the documents sought pertain to the operation of any business by Begel where bonds were written, sold, or transacted. This would include business outside Dade and Broward Counties. Also, even if the documents sought were limited to Be-gel’s bonding business in Dade and Broward County during the appropriate time period, the notice to produce is too broad and lacks sufficient specificity. To fully comply, Be-gel would have to produce every scrap of paper which was in any way related to his bond business, even if it were not relevant to the subject matter of the lawsuit. The order denying Begel’s motion for protective order is reversed and upon remand the trial court is directed to enter an appropriate protective order consistent with this opinion.

AFFIRMED in part, REVERSED in part.

ANSTEAD and LETTS, JJ., concur.


author: CROSS, Judge.

text:
    STATE of Florida, Plaintiff, v. Walter Henry BORGEN, Defendant.
    No. 75-2085.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1977.
    C. A. Van Hook, III, Asst. State’s Atty., Sanford, for plaintiff.
    Richard E. Mandell, of Law Offices of Michael Sigman, Orlando, for defendant.
   CROSS, Judge.

This case reaches us by way of a Certified Question from the Juvenile Division of the Circuit Court of Seminole County pursuant to Fla.App. Rule 4.6. The question certified and set forth in the certificate is as follows:

“Whether a defendant who was seventeen (17) years of age on the date of his arrest, to-wit: May 28, 1974, but was eighteen (18) years old prior to July 1, 1974, should be tried in the Juvenile Division of the Circuit Court having jurisdiction over the crime or should be tried in the Criminal Division of the Circuit Court having jurisdiction over the crime under Supreme Court Transition Rule 18?”

Defendant, Walter Henry Borgen, was charged by information on May 31, 1974, with use of a firearm in commission of a felony, robbery, and with two counts of assault with intent to commit a felony. Borgen was born in 1956, and did not attain the age of eighteen (18) years until June 15, 1974, a few weeks after his arrest. As defendant was only seventeen (17) years of age at the time of his arrest, the criminal division of the circuit court on August 22, 1974, transferred the case to the juvenile division pursuant to Florida Transition Rule 18. The juvenile division, upon motion of the state attorney, returned the case to the criminal division of the circuit court for prosecution of Borgen as an adult on the grounds that he, Borgen, had attained the age of eighteen (18) years prior to July 1, 1974. Subsequently, the criminal division of the circuit court again transferred the prosecution back to the juvenile division, based on the fact that Borgen was seventeen (17) years of age at the time of the commission of the alleged crimes, and therefore possessed the substantive right to be tried by the juvenile division. Hence, the above certified question.

Effective July 1, 1974, § 39.01, Florida Statutes, changed the definition of “child” from a married or unmarried person under seventeen (17) years of age to a person who is either under eighteen (18) years of age or who is charged with a violation of law occurring prior to the time that person reaches the age of eighteen (18) years.

Florida Transition Rule 18, 297 So.2d 5 (Fla.1974), was adopted to effectuate and facilitate the adoption of § 39.01, as amended. It provides as follows:

“(a) Transfer of cases to Juvenile Division. Any person who is under the age of 18 years on July 1,1974, and who is under a pending charge as an adult in any court of this State with a violation of law occurring prior to the time that person reached the age of 18 years, and which charge has not yet been disposed of (except those charged under Fla.Stat. § 39.-02(5)(c) and § 39.09(2)), shall be transferred to the juvenile division for the circuit in which he was charged and shall thereafter be treated in that case in all respects as a child; . . . .” (Emphasis added)

By its terms, Fla.Trans. Rule 18 applies only to persons “under the age of eighteen (18) years on July 1, 1974.” Furthermore, such person must be under a pending charge as an adult arising from violation of law occurring prior to the time that person reached the age of eighteen (18) years.

In the instant case, the record discloses that the defendant was not under the age of eighteen (18) years on July 1, 1974, and therefore did not fall within the transfer provisions of Trans. Rule 18. Under the law as it existed at the time of his arrest, defendant was an adult and therefore was properly before the criminal division of the circuit court. The purported transfer of the case to the juvenile division was not authorized by law, and therefore was ineffective to transfer jurisdiction of the matter.

Accordingly, the certified question is answered that the criminal division of the circuit court has jurisdiction.

Question answered.

ANSTEAD and MOORE, JJ., concur.


author: DAUKSCH, Judge.

text:
    Jerome BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 76-724.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1977.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond and Benedict P. Kuehne, Asst. Attys. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

We review an Order adjudging Appellant in direct criminal contempt and reverse. The trial judge ordered the Appellant to give handwriting exemplars to the State for comparison purposes. This was an oral order later reduced to writing. The Order did not specify any time within which the Appellant was to furnish the exemplars, it did not specify a place to furnish the exemplars nor did it specify to whom the exemplars were to be furnished. It said: “The State’s Motion for Handwriting Exemplars is granted.” Also, the Motion did not specify to whom, where and when the exemplars were to be furnished. The Appellant made contact with Phil Sellers, the investigator for the State’s Attorneys’ office and discussed a time and place to furnish the exemplars. They were furnished before trial and on the day of trial. We are aware of no motion by the State to continue the trial nor are we aware of any demonstrated prejudice to the State on account of the Appellant and Mr. Sellers not attending to the matter before the day of trial. Because the Motion and Order did not fully set out what had to be done to comply and because Appellant did comply with the Order, albeit maybe not in the most timely fashion, we find the Defendant not to be in contempt. Additionally it is noted the trial court failed to comply with Fla.R.Crim.P. 3.830 in that a proper order was not entered. Because we determine the Appellant was not in contempt, and is to be discharged, we shall not discuss the correctly maintained points that if the Appellant did commit a contempt violation it was indirect criminal contempt and as such the trial court was required to give certain procedural rights to the Appellant. See Fla.R. Crim.P. 3.840 and Krueger v. State, 351 So.2d 47 (Fla. 3rd DCA opinion filed August 2, 1977).

ANSTEAD and MOORE, JJ., concur.


author: PER CURIAM.

text:
    Aughtman E. CRUCE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-2182.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1977.

      Richard L. Jorandby, Public Defender, Nikki Clark, Legal Intern, and Frank B. Kessler, Chief, Appellate Div., West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Anthony J. Golden and Basil S. Diamond, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

To sustain a charge of aggravated assault there must be proof that the victim was in fear of imminent bodily injury. Lopez v. State, 345 So.2d 757 (Fla. 4th DCA 1977). There was no proof of this necessary element offered at the trial of this case. Accordingly, the judgment and sentence are reversed. Since the evidence at trial established that appellant was guilty of battery, a lesser offense necessarily included in the charge upon which the appellant went to trial, we remand this cause to the trial court with directions to enter a judgment and sentence for battery, a first degree misdemeanor. See Clark v. State, 337 So.2d 798 (Fla.1976).

REVERSED AND REMANDED, with directions.

ANSTEAD, DAUKSCH and MOORE, JJ., concur.


text:
    Victor Eugene CLEMONS, Appellant, v. Sue Ellen Clemons MORRIS and Southern Bell Telephone and Telegraph Company, Appellees.
    No. 76-2596.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 1977.
    Theodore K. Egner, Fort Lauderdale, for appellant.
    Steven Squire, of Miller, Squire & Brav-erman, Fort Lauderdale, for appellee, Sue Ellen Clemons Morris.
   DAUKSCH, Judge.

The question on appeal is whether Section 61.12, Florida Statutes (1975), applies to judgments for alimony, suit money and child support as well as orders for the same. Hall v. Air Force Finance Center, etc., 344 So.2d 1340, 1343 (Fla.1st DCA 1977), answers the question. Sub judice, the mother obtained a foreign judgment against the father for child support and sued in Florida to make the foreign judgment a Florida judgment and then to garnish his salary. The husband defended by saying Section 61.12, Florida Statutes (1975), only applied to orders and not to judgments. We like the First District Court of Appeal in Hall, supra, hold that Section 61.12, Florida Statutes (1975), applies to judgments for alimony, suit money and child support, as well as orders for the same.

Appellant cites Noyes v. Cooper, 216 So.2d 799 (Fla.3d DCA 1968), as authority but we have considered De Castro v. De Castro, 334 So.2d 834 (Fla.3rd DCA 1976), as limiting that holding because the court somehow determined Noyes v. Cooper, supra, had to do with sums due under a property settlement.

The Order denying Defendant’s Motion for disallowance and/or dissolution of garnishment and the Final Judgment in garnishment, both entered below, are AFFIRMED.

ALDERMAN, C. J., and LETTS, J., concur.


author: HAVERFIELD, Judge.

text:
    Jason TABASKY, Appellant, v. Karen DREYFUSS and Allstate Insurance Company, Appellees.
    No. 76-330.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.

      Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, for appellant.
    Talburt, Kubicki & Bradley and Robert J. Dickman, Miami, for appellees.
    Before HENDRY, C. J., and HAVER-FIELD and HUBBART, JJ.
   HAVERFIELD, Judge.

Plaintiff, Jason Tabasky, appeals a $7,000 final judgment entered in his favor pursuant to a jury verdict in an action to recover damages for personal injuries sustained in an automobile accident.

Tabasky was injured when a car driven by defendant, Karen Dreyfuss, collided with his ear at an intersection. Following the collision, Dreyfuss’ liability insurer, Allstate Insurance Company, sent an investigator to interview the only non-party eye witness to the accident, Virginia Webster, who had been driving behind the Tabasky car prior to the accident, and the investigator reduced to a memorandum Webster’s statement of what occurred. Tabasky filed suit against Dreyfuss and Allstate alleging Dreyfuss was negligent in that she ran the red light. Dreyfuss answered alleging that Tabasky ran the red light, not she. Pretrial discovery ensued and during Webster’s deposition, the investigator’s memorandum was identified, and Webster was questioned about its contents. At time of trial Webster’s deposition was admitted into evidence because she had moved to Georgia. When defense counsel began to read Webster’s cross-examination deposition testimony into the record, he also moved to offer the investigator’s memorandum into evidence. Ta-basky’s counsel objected as follows and the court overruled the objection:

“MR. COHEN: Your Honor, I think that’s a little out of order. It was never introduced in evidence and it was just marked at the time of the deposition and never introduced and made a part of this exhibit.
“THE COURT: On the grounds stated, it is overruled and marked as defendant’s exhibit ‘A’.”

At the conclusion of trial, the jury was instructed on comparative negligence. After deliberating, the jury returned with a $7,000 verdict for Tabasky. Tabasky’s counsel then filed a motion for new trial on the ground, inter alia, that the court erred in allowing defense counsel to introduce the investigator’s memorandum into evidence because it was hearsay. The motion was denied and judgment was entered in accordance with the jury’s verdict.

Plaintiff Tabasky contends that the trial court erred in admitting the investigator’s memorandum into evidence because it was hearsay and substantive evidence.

An appellate court will consider the grounds or objections to the admissibility of evidence as were specifically made in the trial court and cannot consider those objections to admissibility of evidence which are raised for the first time on appeal. See Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656 (1903); Lineberger v. Domino Canning Co., 68 So.2d 357 (1953); Chaudoin v. State, 118 So.2d 569 (Fla.2d DCA 1960); Jennings v. Stewart, 308 So.2d 611 (Fla.3d DCA 1975). The record clearly reflects that plaintiff’s counsel objected to the admissibility of the memorandum solely on the ground it was not introduced into evidence at the time of the Webster deposition, and the objection was properly overruled by the trial judge. The plaintiff having failed to raise the proper grounds for the objection to the introduction of the memorandum at trial, he is now precluded from raising any new additional grounds or objections for the first time on appeal.

In addition, we glean from the briefs and oral argument that plaintiff, in essence, is seeking reversal on the basis of inadequacy of the amount of the verdict. However, in his motion for new trial, plaintiff failed to include a specific allegation that the verdict was inadequate as required and, therefore, again is precluded from raising this issue for the first time on appeal. See Paul v. Ranter, 155 So.2d 402 (Fla.3d DCA 1963); O’Leary v. Watson, 263 So.2d 643 (Fla.3d DCA 1972).

Finally, after reviewing the trial record and considering the favorable verdict for the plaintiff, we conclude that plaintiff’s argument that the introduction of the investigator’s memorandum constituted prejudicial error is, at best, speculative. Cf. Wallace v. Rashkow, 270 So.2d 743 (Fla.3d DCA 1972).

Affirmed.


text:
    Elisha HAM, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 76-435.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    Bennett H. Brummer, Public Defender and Irv J. Lamel, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Hall v. State, 316 So.2d 279 (Fla.1975); Curry v. State, 272 So.2d 12 (Fla. 3d DCA 1973); Hall v. State, 273 So.2d 90 (Fla. 4th DCA 1973); Kelly v. State, 254 So.2d 22 (Fla. 1st DCA 1971), and Garcia v. State, 228 So.2d 300 (Fla. 3d DCA 1969).


text:
    MIAMI NATIONAL BANK, Appellant, v. BARNETT BANK OF MIAMI, Appellee.
    Nos. 76-877, 76-985.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellant.
    Irwin J. Stone, Miami, for appellee.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Miami National Bank appeals from an adverse final default judgment entered in a garnishment action in favor of Barnett Bank of Miami and an order denying motion to set aside the default judgment contending inter alia the trial court erred in refusing to set aside the default judgment under Fla.R.Civ.P. 1.500(d), 1.540(b) on the ground of excusable neglect. We agree and reverse.

Miami National Bank filed an answer one day late containing a meritorious defense to a writ of garnishment served on it by Barnett Bank of Miami. The late filing of the answer was occasioned by the termination of Miami National Bank’s vice-president who was authorized to review writs of garnishment and execute answers and the consequent time involved in re-assigning his duties to another person at the bank. Such a showing constitutes excusable neglect under Fla.R.Civ.P. 1.500(d), 1.540(d) sufficient to set aside the default judgment. Terrazzo and Marble Supply Co. v. Columbia Bank of Ybor City, 173 So.2d 475 (Fla.2d DCA 1965).

The default judgment and the order denying the motion to set aside the default judgment are reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    Charles A. BERRIDY, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 76-935.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    Eugene P. Spellman and Denis Dean, Miami, for appellant.
    Stuart L. Simon, County Atty. and Stephen P. Lee, Asst. County Atty., for appel-lee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

This is an appeal by Charles A. Berridy from a final judgment of the circuit court denying a petition for writ of certiorari contending that his dismissal from employment as a police officer with the Dade County Public Safety Department was in violation of the Personnel Rules and Code of Metropolitan Dade County. The sole question raised by Berridy and to be resolved on this appeal is whether his dismissal by the assistant director, rather than the director, of the Public Safety Department, was in accordance with the County Code and Personnel Rules.

The record reflects that on October 4, 1974, Harold W. Barney, then Assistant Director of the Public Safety Department, notified Berridy by letter that he was dismissed from his position as a police office for conduct unbecoming a county employee, and for violating provisions of departmental rules. On appeal, a hearing examiner found that Harold W. Barney was the head of the Department at the time of Berridy’s dismissal and entered an order upholding the dismissal. In his petition for writ of certiorari in the circuit court, Berridy attacked the validity of his dismissal, the constitutionality of the county’s rules and regulations and the sufficiency of the evidence. The circuit judge entered a final judgment denying the petition for writ of certiorari.

Chapter VIII, Section 5, of the Metropolitan Dade County Personnel Rules provides as follows:

“Section 5. Suspension, Dismissal, Reduction In Grade and Appeals:
Any permanent employee may be suspended without pay, reduced in grade or dismissed by the head of his department for any cause which will promote the efficiency of the County Service. Prior to taking such action, the department head shall consult with the Personnel Director about the circumstances of any such suspension, reduction in grade or dismissal of a permanent employee. A written statement of the reasons for the action shall be furnished to every permanent employee suspended, reduced in grade or dismissed . . . ” (emphasis supplied)

The Personnel Rules also contain the following definition of “department head:”

“DEPARTMENT HEAD shall mean an officer or employee designated by the County Manager or the Board of County Commissioners to be the head of a department and who shall be authorized to appoint or remove employees of his department over which he has jurisdiction, subject to these rules.”

From the record, we find that effective August 15, 1973, the County Manager, by administrative order, reorganized the Public Safety Department and set out the duties of the assistant director as follows:

“Executes departmental policies and coordinates departmental operations under the guidance of the Director; Reviews divisional activities and performance and makes policy recommendations to the Director; Assumes command in the absence of the Director.” (emphasis supplied)

We further find from the record that on August 6, 1974, E. Wilson Purdy, Director of the Public Safety Department, prepared a leave request for the period from October 4, 1974, through November 1, 1974, which request was approved by the County Manager. On September 30, 1974, Purdy prepared and circulated a memorandum concerning his annual leave which stated: “During my annual leave, October 4 to November 1, 1974, Assistant Director, Harold W. Barney, is in charge of this Department.”

Given the foregoing definition of “department head” together with the administrative order providing that the assistant director assumes command in the absence of the director, and the memorandum of Director Purdy that in his absence, Assistant Director Barney was in charge of the Public Safety Department, we hold that on October 4, 1974, the date on which Berridy was dismissed from his employment, Assistant Director Barney was the department head, and was authorized to remove employees of his department. The circuit judge not having departed from the essential requirements of law in denying the petition for writ of certiorari, the final judgment herein appealed is affirmed.

Affirmed.


text:
    Nelly APARICIO, Appellant, v. The PROTECTIVE NATIONAL INSURANCE COMPANY OF OMAHA, Appellee.
    No. 76-1108.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    H. C. Starkweather, Miami, for appellant.
    Leland E. Stansell, Jr. and Robert A. Glassman, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Camacho v. Allstate Insurance Company, 310 So.2d 330 (Fla.3d DCA 1975).


text:
    Eric P. DURCAN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1144.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    Michael A. Pelle, North Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., and Jose R. Rodriguez, Legal Intern, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and HUBBART, JJ.
   HAVERFIELD, Judge.

Eric Durcan appeals his convictions for three counts of burglary, one count of larceny and one count of breaking and entering; and contends that the trial judge abused his discretion by denying his motions for continuance so that he could bring in testimony to impeach that of the prosecution’s chief witness. We find the continuance was properly denied.

The general rule is that the granting or denial of a motion for continuance is within the discretion of the trial court and the court’s action on such a motion will not be disturbed on appeal unless there is a clear showing that there has been a palpable abuse of that discretion to the disadvantage of the accused, or whereby his rights may have been jeopardized. Mills v. State, 280 So.2d 35 (Fla. 3d DCA 1973); Douglas v. State, 216 So.2d 82 (Fla. 3d DCA 1968) and cases cited therein. We conclude defendant has failed to show an abuse of discretion or that any of his rights were jeopardized.

First, we note that the motions failed to comply with the requirements set forth in Fla.R.Crim.P. 3.190(g) in that the motions were not in writing and contained no certificate of counsel. Cf. Lyles v. State, 312 So.2d 495 (Fla. 1st DCA 1975).

Second, the proposed testimony which would be later produced merely was cumulative and would only tend to impeach the prosecution witness. See Machin v. State, 213 So.2d 499 (Fla.3d DCA 1968).

As defendant made no written motion or timely demand therefor, we have also determined that there is no merit in his second argument that he was deprived of his right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Affirmed.


text:
    A. Lionel BOSEM, d/b/a Biscaya Hotel, Coronet Hotel, and President Madison Hotel, Appellant, v. A. R. A. CORP., a Florida Corporation, d/b/a Dutch Country Paper and Syrup Mfg., Appellee.
    No. 76-1329.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.

      Joe N. Unger, Miami, Harvey Richman, Miami Beach, for appellant.
    Stephen J. Avrach, Miami Beach, for ap-pellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

This is an appeal by the defendant from a final judgment which awarded the plaintiff $16,150.00 in damages on a complaint based upon “goods sold and delivered” and denied the defendant’s set-off and counterclaim.

The defendant has raised but one point on appeal, which we believe to be meritorious, to-wit: that the trial court erred in rendering a final judgment for the plaintiff on a cause of action based upon goods sold and delivered where the evidence presented at trial failed to establish the required elements of sale, delivery and agreed price.

After carefully reviewing the record, we agree with the defendant that based upon the testimony heard by the trial court and exhibits entered into evidence, the plaintiff failed to prove that it delivered certain paper products to defendant’s various hotels and as such, no prima facie case for goods sold and delivered was established. Chase & Co. v. Miller, 81 Fla. 472, 88 So. 312 (Fla.1921); See Pillsbury Company v. Chernin & Pila Dairy & Livestock Co., Inc., 280 So.2d 49 (Fla.2d DCA 1973).

The final judgment appealed from must therefore be reversed; however, in the interest of justice and for the following reason, we remand the cause to the trial court with directions to retry the matter.

During the course of the trial, the plaintiff sought to introduce into evidence ledger sheets and delivery tickets by which it intended to prove the sale and delivery of the goods to the defendant. Objection to the introduction into evidence of these ledger sheets and delivery tickets was sustained, apparently for the reason that the plaintiff was unable to establish the validity of the signatures on the tickets as that of an authorized person receiving the goods. The materials were marked for identification, but were at no time introduced into evidence.

Notwithstanding the fact that the trial judge did not allow the plaintiff to introduce into evidence the ledger sheets and tickets, it appears that the court nevertheless considered same in rendering its decision. As pointed out by able counsel for the defendant however, documents not properly admitted into evidence cannot be the basis for a judgment, in that said documents are not properly before the court. Coca-Cola Bottling Company v. Clark, 299 So.2d 78 (Fla.1st DCA 1974); Simpson v. Woodham, 332 So.2d 693 (Fla.1st DCA 1976). Clearly, the trial judge should not have considered the ledger sheets and tickets without having first admitted them into evidence.

The question which must now be answered is whether, in fact, the court erred in failing to admit the documents. We believe that pursuant to Section 90.-803(6)(a), Florida Statutes (1976 Supp.), relating to the use of business records as evidence of facts contained therein, we must answer the above question in the affirmative.

In light of the above, and taking into account the trial court’s ruling on the merits, which by necessity, impliedly held that the plaintiff had established a prima facie case, it is our view that the cause should be remanded with directions for the court to hold a new trial at which time the court might properly consider the ledger sheets and tickets in its ruling. See English v. Clark, 289 So.2d 33 (Fla.1st DCA 1974); see also Gainesville Gas Co. v. Walters, 37 So.2d 695 (Fla.1948).

Of course, in so ruling to remand the cause for new trial, we do not pass judgment on whether or not the additional exhibits would enable the plaintiff to establish a prima facie case for goods sold and delivered. That decision is one for the trial judge to answer. Chaykin v. Kant, 327 So.2d 793 (Fla.3d DCA 1976).

Accordingly, the final judgment appealed from is reversed and the cause remanded for new trial.

Reversed and remanded for new trial.

      . Defendant contends that it is not proper for this court to consider any alleged error by the trial court in refusing to admit the ledgers and tickets for the reason that the plaintiff has failed to cross-assign as error the refusal to admit the above. Our Supreme Court has stated, however, that a party who is not aggrieved by the lower court’s decision need not file cross-assignments of error in order to have the points considered on appeal. MacNeill v. O’Neal, 238 So.2d 614 (Fla.1970), and cases cited therein.


text:
    GREATER MIAMI STAGE et al., Appellants, v. John BERG et al., Appellees.
    No. 76-1442.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    Kaplan, Dorsey, Sicking & Hessen and Joseph C. Segor, Miami, for appellants.
    Leo Greenfield and John Greenfield, North Miami, for appellees.
    Before HENDRY, C. J„ and PEARSON and HUBBART, JJ.
   PER CURIAM.

This appeal questions the correctness of a summary final judgment rendered in favor of Romolo Egidi, Jr., one of the defendants who was sued individually and as a partner of the other defendants in an action by appellants for wages allegedly due and owing to the appellants.

We have carefully examined the record on appeal and have concluded that the record clearly establishes the absence of any genuine triable issue of material fact and that appellee is entitled to a judgment as a matter of law.

The judgment appealed is affirmed.


author: NATHAN, Judge.

text:
    DEPARTMENT OF TRANSPORTATION of the State of Florida, Tom B. Webb, Jr., Individually and as Secretary of the Department of Transportation of the State of Florida, the Department of Administration of the State of Florida, Conley Kennison, Individually and as Director of the Division of Personnel of the Department of Administration, State of Florida, Appellants, v. Earl W. MOREHOUSE, Appellee.
    No. 76-1493.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.

      Mary E. Clark and Alan E. DeSerio and H. Reynolds Sampson, Tallahassee, for appellants.
    Robert M. Brake, Coral Gables, for appel-lee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   NATHAN, Judge.

This is an appeal by two state administrative agencies and their executive officers, defendants below, from a final declaratory judgment rendered by the Circuit Court of the Eleventh Judicial Circuit, Dade County, Florida, in favor of a former state employee, Earl W. Morehouse. The declaratory decree ordered the state agencies to restore the plaintiff to his prior position with the appropriate emoluments. The primary issue on appeal is whether the circuit court has jurisdiction to render this judgment.

Plaintiff was employed by the Department of Transportation when, on December 4, 1975, pursuant to Section 110.092(4)(a), Florida Statutes (1975), he submitted a written request seeking the department’s approval to run for the office of councilman in the city of Miami Springs, Dade County, Florida, where he resided. His immediate superiors recommended approval, but, on February 12, 1976, the director of the Department of Transportation executed a written disapproval of the request. The sole reason given for the disapproval was that a potential conflict of interest would exist should Mr. Morehouse be elected. The “potential conflict of interest” was not further delineated.

Although the question of Mr. More-house’s receipt of notice was not undisputed, the trial court found that the written disapproval of his request for permission to run was not served on the plaintiff, and that he was given written notice of the disapproval and directed to withdraw his candidacy only after he had qualified. It is axiomatic that factual conclusions of the trial judge come to this court with the presumption of correctness, and will not be reversed unless clearly erroneous. There is ample evidence in the record to support his conclusions.

Plaintiff requested reconsideration. This request was denied, and his employment was terminated. He was informed that, since he had voluntarily acted in disregard of the disapproval, this termination was “deemed a resignation.” Plaintiff attempted to appeal his dismissal to the Career Service Commission but was advised that Rule 22A-7.10D of the Department of Administration Division of Personnel and Retirement precluded appeal. He then filed suit for declaratory decree in the United States District Court for the Southern District of Florida. A summary judgment was entered because the federal court lacked jurisdiction.

In December of 1975, plaintiff filed a declaratory judgment action in the circuit court in Dade County. The trial court found, as fact, that plaintiff’s duties with the Department of Transportation were unlikely to affect the city of Miami Springs, and that at least two other employees within the department had not only been given authority to qualify as candidates for public office, but also had qualified for office before receiving approval.

In its findings of law the circuit court held: that the suit sub judice was a proper cause for declaratory judgment under Chapter 86, Florida Statutes (1975) and that jurisdiction was proper; that while there may be no constitutional right to public employment, there is a right to be free from unreasonably discriminatory practices with respect to such employment; that defendants may not unreasonably withhold approval of a request to run for office; that the due process clauses of the United States and the Florida Constitutions require a hearing prior to discharge where discharge is based on constitutionally or statutorily protected activities; that the defendants had deprived plaintiff of both due process and equal protection of the law in numerous enumerated ways; that there was neither actual nor real potential conflict of interest between plaintiff’s job with the Department of Transportation and that of city councilman in Miami Springs; and that termination of plaintiff’s employment was wrongful. Restoration of Mr. Morehouse to his appropriate position was then ordered.

Appellants assert error on several grounds, foremost of which is that the circuit court was without subject matter jurisdiction in the case. Of course, if this is so, the entire judgment is invalid. Therefore, this issue merits initial attention.

It is appellants’ position that the Administrative Procedure Act, in Sections 120.68 and 120.72, Florida Statutes (1975), provides that the sole method for review of final agency action is the filing of a petition for review in the District Court of Appeal. Section 120.68 reads, in pertinent part:

(1) A party who is adversely affected by final agency action is entitled to judicial review. A preliminary, procedural, or intermediate ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy. (2) Except in matters for which judicial review by the supreme court [sic] is provided by law, all proceedings for review shall be instituted by filing a petition in the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida appellate rules.
(6) When there has been no hearing prior to agency action and the reviewing court finds that the validity of the action depends upon disputed facts, the court shall order the agency to conduct a prompt, fact-finding proceeding under this act after [having] a reasonable opportunity to reconsider its determination on the record of the proceedings.

Section 120.72, dealing with the intent of the legislature in enacting the 1974 Administrative Procedure Act, provides:

(1) The intent of the legislature in enacting this complete revision of chapter 120, Florida Statutes, is to make uniform the rulemaking and adjudicative procedures used by the administrative agencies of this state. To that end, it is the express intent of the legislature that the provisions of this act shall replace all other provisions in the Florida Statutes, 1973, relating to rulemaking, agency orders, administrative adjudication, or judicial review [of administrative action], except marketing orders adopted pursuant to chapters 573 and 601.

It is also necessary to take note of Section 120.73, effective June 25, 1975. This section, dealing specifically with declaratory judgment proceedings in the circuit courts, states:

Nothing in this chapter shall be construed to repeal any provision of the Florida Statutes which grants the right to a proceeding in the circuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of chapter 86.

Having set forth the relevant statutory provisions, we next apply them to the facts of the instant case. As has been noted, Mr. Morehouse was not apprised of the disapproval until after the deadline for qualifying to run. What notice he did receive consisted of a blunt disapproval on grounds of potential conflict of interest without accompanying reasons. When he sought to remedy his dilemma through appeal to the Career Service Commission, he was informed that his actions had amounted to a resignation and that appeal was thereby foreclosed. In short, agency actions placed the plaintiff in a position where he was denied rights to which he was constitutionally entitled, and then foreclosed a reasonable remedy. Plaintiff’s complaint stated sound constitutional and equitable grounds for relief and thus established a basis upon which to predicate jurisdiction in the circuit court under chapter 86, unless it can be said that the Administrative Procedure Act necessarily bars this remedy. Definitively stated, the issue in this case is whether the judicially created companion doctrines of primary jurisdiction and exhaustion of administrative remedies combine to make petition for review in the district court of appeals the sole remedy available when final agency action substantially affects the constitutional rights of a party.

We are guided in our resolution of this case by recent rulings of our sister court in the First District. In State of Florida ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), an incisive opinion which includes an exhaustive review of procedural options under successive versions of the Florida Administrative Procedure Act, Judge Smith made it clear that the current Act provides so abundant an arsenal of remedies for administrative error that it will rarely be appropriate to seek judicial review of agency action other than through the district courts of appeal. Yet it was recognized that “some agency errors may be so egregious or devastating that the promised administrative remedy may be too little or too late. In that case equitable power of a circuit court must intervene.” Id., at 590.

The Willis court left open the question of “the extent to which the undivested statutory jurisdiction of circuit courts to render declaratory judgments under Chapter 86 is nevertheless to be judicially restricted when coercive relief, not a declaration of some doubtful right or status, is plaintiff’s real objective, or when uninvoked administrative remedies are available.” This was precisely the issue dealt with in School Board of Leon County v. Mitchell, 346 So.2d 562 (1st DCA 1977).

In Mitchell, a school board employee sought declaratory judgment in a circuit court as to her statutory and contractual rights. The court denied such relief, noting that a major purpose of the 1974 revision of the Act was to settle the procedure of review and to avoid the attenuated distinctions in the case law between quasi-judicial actions and those which are quasi-legislative or quasi-executive, distinctions which are no longer purposeful or helpful. The court sought to avoid a revisitation of the confusion and controversy surrounding judicial review of administrative actions that Section 120.68 was designed to alleviate when it held that “in the vast majority of cases, the sole method of challenging agency action, whether formally recognized as an ‘order’ or a ‘rule’, as it affects the substantial interests of a party, is by petition for review to the appropriate District Court of Appeal.” It went on, however, to state:

We are not prepared to say that a frustrated litigant . . . may never, under any circumstances, obtain a declaratory decree from the Circuit Court, but the declaratory judgment remedy may be resorted to only in . extraordinary cases. . . . ” Id. at 568.

The problem now before us involves just such an extraordinary situation. An agency rule precluded Mr. Morehouse from appealing his dismissal. Neither the Department of Administration nor its hearing officer would have had the power to declare the rule unconstitutional. State of Florida, Department of Administration, Division of Personnel v. State of Florida, Department of Administration, Division of Administrative Hearings, 326 So.2d 187 (1st DCA 1976), and cases cited therein.

Moreover, the separation of powers provision of the Florida Constitution, Article II, Section 3, stands as a permanent bar to administrative determination of fourteenth amendment problems. The Administrative Procedure Act cannot relegate matters of constitutional proportions to administrative agency resolution, nor can it impair judicial jurisdiction to determine constitutional disputes. Department of Revenue v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976). See also Department of Revenue v. Crisp, 337 So.2d 404, 406 (Fla. 2d DCA 1976).

We admonish against attempts to evade appropriate review procedures by clothing claims for coercive relief in raiment of dubious constitutional dimensions in order to bootstrap such claims into subjects for declaratory decrees. Yet because the summary acts of state agencies and officials were sorely deficient in constitutionally guaranteed safeguards, because the harm done to plaintiff was inordinate, and because nothing in the Administrative Procedure Act divests the circuit courts of jurisdiction to render declaratory judgments in the rare cases where such defects in due process exist, we hold that, under the facts of this case, jurisdiction to render a declaratory decree did lie in the circuit court under Chapter 86, and Section 120.73, Florida Statutes (1975).

Appellants also assert error in the trial court’s denial of their motion to transfer cause for improper venue, and contend that the appropriate venue for an action against a state agency lies in the county where its headquarters are located. A plethora of cases state the general rule that, absent waiver, a state agency or officer enjoys the privilege of venue in the county in which the agency has its official residence. Smith v. Williams, 160 Fla. 580, 35 So.2d 844 (Fla.1948); Gay v. Ogilvie, 47 So.2d 525 (Fla.1950); Henderson v. Gay, 49 So.2d 325 (Fla.1950).

However, this state has long recognized the dichotomy between those cases in which a questioned agency action results in no imminent invasion of a constitutional or statutory right of the plaintiff and those in which the primary purpose of the litigation is judicial protection against an alleged unlawful infringement of a plaintiff’s constitutional rights. Where agency action presents a genuine threat to such interests, venue is proper in the county where the alleged intrusion upon constitutional rights has occurred. Smith v. Williams, supra, at 846-47; State ex rel. Florida Dry Cleaning and Laundry Board v. Atkinson, 136 Fla. 528,188 So. 834 (1938); Department of Revenue v. Crisp, supra. We hold that venue was properly laid in Dade County, the situs of the violations of plaintiff’s constitutional rights.

Appellants’ remaining assertions of error are deemed without merit. The judgment of the circuit court is affirmed in all respects.

AFFIRMED.

      . Section 110.092 provides:
      . (4) As an individual, each employee retains all rights and obligations of citizenship provided in the constitution and laws of the United States. However, no employee in the classified service shall:
      (a) Hold, or be a candidate for, public or political office while in the employment of the state or take any active part in a political campaign while on duty or within any period of time during which he is expected to perform services for which he receives compensation from the state. However, when authorized by his agency head and approved by the division of personnel, an employee in the classified service may be a candidate for or hold a local public office which involves no interest which conflicts or interferes with his state employment. The division of personnel of the department of administration shall prepare and make available to all affected personnel who make such request a definite set of rules and regulations and procedures consistent with the provisions herein.

      . The Rule, captioned “Failure to Resign to Run for Public Office,” states: An employee who becomes ineligible for continuation of employment in accordance with § 110.092(4)(a), Florida Statutes, shall be terminated without the right of appeal to the Career Service Commission.


author: PER CURIAM. NATHAN, Judge,

text:
    Carlos CRUZ and Luz Cruz, his wife, Appellants, v. METROPOLITAN DADE COUNTY et al., Appellees.
    No. 76-1651.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.

      Preddy, Haddad, Kutner, Hardy & Josephs and John A. Thompson, Jr., Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

The plaintiffs Carlos Cruz and Luz Cruz, his wife, sued Metropolitan Dade County claiming damages from the County because Mr. Cruz was injured while swimming in the waters off Rickenbacker Causeway. While Cruz was engaged in the activity of “snorkeling,” he was struck by a motorboat. After discovery and the filing of affidavits, Dade County moved for summary final judgment. The summary final judgment was entered for Dade County, and the plaintiffs have appealed from that judgment.

The uncontroverted evidence before the trial court shows that the area in which Cruz was using the bay for swimming was not a designated county park and recreation area. Although it was known to the employees of the County that the area was sometimes used for swimming purposes, the County did not undertake to supervise swimming activities in the area. About forty-five minutes before the accident, a friend of Cruz’s, who was with him, told him to get out of the water because boats were coming in close and someone might get hurt. Cruz got out of the water but, thereafter, returned to his snorkeling activities.

The controlling question on this appeal is whether or not, under the facts of the case, Metropolitan Dade County had a duty to supervise swimming in the area. We hold that no duty existed to supervise swimming in a portion of the bay which was not designated as a public swimming area. In Waite v. Dade County, 74 So.2d 681 (Fla.1954), the Supreme Court of Florida held that the failure of the County to place barriers on a strip for pedestrians on a bridge concerned functions being performed by the County in its governmental capacity and that the County as a political subdivision of the State of Florida was immune from suit as a result of the failure to perform the function.

There being no genuine issue of material fact and it appearing that the County is entitled to a judgment as a matter of law, the summary final judgment is affirmed.

Affirmed.

NATHAN, Judge,

dissenting:

This is an appeal by plaintiffs from an adverse summary final judgment entered in favor of Dade County, discharging the county from liability. While snorkeling in the water adjacent to Rickenbacker Causeway, plaintiff was struck and injured by a boat operated by an individual who is not a party to this action. Plaintiff brought suit against Metropolitan Dade County and the city of Miami, alleging that either the city, the county, or both were negligent in maintaining and caring for a beach area in that they failed to patrol it properly, to delineate the appropriate swimming area, to post warnings or restrictions for boaters in the area, and to take adequate precautions, knowing that the area was dangerous because both swimming and boating took place there.

Although the location in which the accident occurred was not a “designated” beach or swimming area, the record reflects that employees of the county and the city patrolled there, and knew the area was used by both boaters and swimmers. After discovery, the county moved for summary judgment, asserting, inter alia, (1) that, as a matter of law, Dade County should not be deemed negligent since it had violated no duty to plaintiff, and (2) that even if a duty were to be established, the doctrine of sovereign immunity precluded suit.

In regard to the county’s assertion that it owed no duty to plaintiff as a matter of law, resolution of a dispute by way of summary judgment applies only when there are no issues of material fact in dispute, and therefore the moving party is entitled to a judgment as a matter of law. In the case at bar, there are contested facts presented regarding the governmental entity responsible for the premises, the nature and degree of the responsibility involved, and the applicability of sovereign immunity. Thus there remain mixed questions of law and fact still unresolved, and summary judgment is an inappropriate method of precluding further pursuit of plaintiff’s cause.

The majority holds that no duty existed to supervise swimming in an area not designated as a public swimming area. This does not preclude the existence of a lesser duty in this location, for example the duty to inform the public that swimming would be an individual risk, or to post signs barring boats within a reasonable distance from shore. Whether or not such a duty exists may depend on other issues not yet resolved.

It may well be that appellant cannot recover under the facts and the law applicable to this case. But to bar the pursuit of a remedy in a situation in which the line between law and fact is itself blurred is an inadequate solution. I would reverse and remand for further consideration of the facts and the law.

      . The accident with which we are here concerned occurred prior to the effective date of Sections 768.28 and 768.30, Florida Statutes (1975).

      . The record is unclear as to an accepted definition of a “designated” beach, but it appears that the reference is to areas in which lifeguard protection and numbered parking areas are provided by the county.


text:
    Dorothy SARGAVAKIAN and Edward Sargavakian, Appellants, v. MT. SINAI HOSPITAL OF GREATER MIAMI, INC., and Philip Samet, M. D., Appellees.
    No. 76-1653.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    Law Offices of John R. Sutton, Coral Gables, for appellants.
    Dixon, Dixon, Lane, Mitchell & Harris and Dennis L. Webb, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Affirmed. Martin v. Parks, 165 So.2d 220 (Fla.3d DCA 1964); Rosen v. Parkway General Hospital, Inc., 265 So.2d 93 (Fla.3d DCA 1972). Also see Crovella v. Cochrane, 102 So.2d 307 (Fla.1st DCA 1958), and compare Helms v. Sims, 330 So.2d 71 (Fla.3d DCA 1976).


text:
    James F. SWEENEY, Appellant, v. Lorene WIGGINS and Allstate Insurance Company, Appellees.
    No. 76-1743.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    Clifford B. Wentworth, Fort Lauderdale, for appellant.
    Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HAVERFIELD, Judge.

This is an appeal from a $2 judgment entered in accordance with the jury’s verdict in this action to recover for personal injuries sustained as a result of a boating mishap.

James F. Sweeney, plaintiff-appellant, and Lorene Wiggins, defendant-appellee, along with several other persons set out on a scuba diving trip in Ms. Wiggins’ boat. Upon diving off the rear of the boat, Sweeney was cut in several places either by the boat’s propeller, the coral or a combination of both. Sweeney filed the instant negligence action against Wiggins and her liability insurer, Allstate Insurance Company, alleging that he dived after receiving the “go signal” from Wiggins. Wiggins testified at the jury trial that she specifically told Sweeney not to jump until she got the boat off the rocks, and the moment she saw him jump she put the boat from reverse back into neutral. Sweeney was treated at the hospital for his injuries and received a total of 26 stitches. Conflicting medical testimony as to the extent, if any, of Sweeney’s permanent injury was also presented to the jury. At the conclusion of the trial, the judge rendered a comparative negligence charge to the jury which then retired to deliberate. When the jury returned with its verdict, the judge examined the form and found it to be improper. Whereupon, he recharged the jury on the preparation of the verdict forms and refused to announce the verdict at that time. The jury retired to deliberate further and later that day returned a verdict for Sweeney in the sum of $2. Sweeney’s motion for new trial was denied and final judgment was entered.

Sweeney first argues that because the amount of the verdict was grossly inadequate in that the award was less than his out-of-pocket expenses, the trial judge erred in denying his motion for new trial.

The question presented is whether there was competent substantial evidence to support the verdict which arrives in this court with a presumption of correctness. It is not the function of this court to consider the credibility of the witnesses nor the weight to be given to particular testimony. See Fuote v. Maule, 143 So.2d 563 (Fla. 3d DCA 1962) and cases cited therein. In light of the above principles of law, we note that the jury was given a comparative negligence charge and inherent in their verdict was a finding of negligence on the part of both Sweeney and Wiggins. In addition, testimony was presented to the jury to the effect that Sweeney sustained no permanent disability or loss of earnings.

This issue may be best disposed of by the following statement of Justice Terrell in Snider v. Bancroft Inv. Corp., 61 So.2d 184, 185 (Fla.1952):

For all the record discloses, the charges of the court were acceptable to both parties. The verdict and judgment are presumptively correct, and while we have searched diligently, we fail to find sufficient ground to overthrow this presumption. Mere disappointment at the verdict of a jury or disagreement with it, is not sufficient warrant for a new trial. There must be positive showing of prejudice, misconception, or some other influence that misled the jury. Failing to find any such element in the record, to reverse the judgment would amount to nothing more than a substitution of our appraisal of the evidence for that of the trial court and the jury, which we are not authorized to do.”

We find there was competent substantial evidence to support the jury’s verdict and the trial judge did not err in denying the motion for new trial based upon the inadequacy of the damages awarded. Cf. Weiss v. Goldman, 120 So.2d 812 (Fla. 3d DCA 1960); Gables Lincoln-Mercury, Inc. v. Henkin, 173 So.2d 774 (Fla. 3d DCA 1965).

Sweeney also argues that the trial judge erred in refusing to publish the first verdict returned to the jury. We find no error.

The jury’s initial verdict was not in proper form and the trial judge was eminently correct in informing the jury about the defect in the verdict, refusing to announce it and instructing the jurors as to the proper preparation of the verdict forms. See Miami Coin-O-Wash, Inc. v. McGough, 195 So.2d 227 (Fla. 3d DCA 1967). Until a verdict is received and published by the clerk of the court it is still within the control of the jury and when the jurors are sent back, their first unaccepted and unrecorded verdict is a nullity. See Stevens Markets, Inc. v. Markantonatos, 189 So.2d 624 (Fla.1966); Wohlfiel v. Morris, 122 So.2d 235 (Fla. 3d DCA 1960); Tobin v. Garry, 127 So.2d 698 (Fla. 2d DCA 1961); Glecer v. Fletcher, 299 So.2d 134 (Fla. 3d DCA 1974).

Affirmed.

      . Finding for Sweeney and assessing his damages in the sum of zero dollars.


author: HUBBART, Judge.

text:
    Raymond M. HAMRA, Appellant, v. Barbara HAMRA, Appellee.
    No. 77-1427.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1977.
    William J. Brown, Miami, for appellant.
    Markus, Winter & Spitale, Miami, for ap-pellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

By this interlocutory appeal, we are asked to review an order holding the appellant-husband [Raymond M. Hamra] in contempt of court for failure to pay a child support award entered previously by the trial court in a marriage dissolution action. The order permits the husband to purge himself of contempt upon payment of the child support arrearages at a date and time certain or otherwise serve thirty days in the county jail. We reverse.

The law is clear that in order to hold a party in willful contempt of court and imprison said party for non-payment of a money judgment or other court order requiring the payment of money, the trial court “must make an affirmative finding that either (1) the [said party] presently has the ability to comply with the order and willfully refuses to do so, or (2) that the [said party] previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order.” Faircloth v. Faircloth, 339 So.2d 650, 651 (Fla.1976). See also Altieri v. Altieri, 341 So.2d 525 (Fla. 1st DCA 1977); Pearce v. Pearce, 341 So.2d 282 (Fla. 1st DCA 1977). No such finding is contained in the contempt order in this case. Accordingly, the order appealed from is reversed and the cause remanded to the trial court to make the above affirmative finding if supported by the record herein or otherwise to vacate the order of contempt.

Reversed and remanded.

      .The contempt of court order in this cause reads as follows:
      “THIS CAUSE having come on to be heard upon Notice to Show Cause, and the Court having heard argument of counsel and having taken testimony and being otherwise fully advised in the premises finds as follows:
      1. That the Respondent, RAYMOND M. HAMRA, is in arrears in child support in the amount of $1,120.00 up to May 7, 1977.
      2. That the Respondent, RAYMOND M. HAMRA, has not yet paid any portion of the award of attorney’s fees in the amount of $18,-000.00 heretofore entered by this Court.
      NOW, THEREFORE, it is ORDERED and ADJUDGED:
      1. That the Respondent, RAYMOND M. HAMRA, is in contempt of this Court for failure to pay the aforesaid child support.
      2. That the said Respondent may purge himself of such contempt by paying the said $1,120.00 support arrearages to the Petitioner, BARBARA HAMRA, by no later than 5:00 p. m. Monday, June 20, 1977.
      3. That upon Affidavit of the Petitioner, BARBARA HAMRA, or her attorneys stating that the aforesaid payment has not been made within said time limit, and without further order of this Court, the Respondent, RAYMOND M. HAMRA, shall be taken into custody and confined in the County Jail of Dade County, Florida, for a period of thirty days under the work release program.
      4. That the Respondent, RAYMOND M. HAMRA, shall commence payments of $100.00 per week on account of the $18,000.00 attorney’s fees heretofore ordered by this Court, said payments commencing on August 9, 1977 and continuing until said total sum of $18,-000.00 is paid in full.
      5. That the Exceptions to the General Master’s Report be and the same are hereby denied, save and with the exception of attorney’s fees heretofore awarded to the attorney for the Petitioner, BARBARA HAMRA, to wit: STUART A. MARKUS, the Court having stricken said attorney’s fees from the Order of the General Master and that a hearing on that portion of the Order and upon attorney’s fees for this hearing shall be by proper notice of hearing.
      6. That the Respondent, RAYMOND M. HAMRA, by and is hereby ordered to follow the terms of the Order Upon the General Master’s Report entered on the 9th day of June, 1977 and if any of those funds are due and payable they should be paid forthwith by RAYMOND M. HAMRA, or he shall be in contempt of Court as heretofore ordered.
      DONE and ORDERED in Chambers, at Miami, Dade County, Florida, this 22 day of June, 1977, nunc pro tunc as of June 9, 1977.
      /s/ SAM I. SILVER CIRCUIT JUDGE”
      We do not interpret this order as finding the husband in contempt of court for non-payment of the attorney’s fee award or as imposing any jail sentence upon failure to pay such award coupled with appropriate purging provisions. If such an order is entered upon remand in this cause, the requirements set forth in Faircloth v. Faircloth, 339 So.2d 650, 651 (Fla.1976), must be followed as hereinafter discussed in the text of this opinion.


author: McCORD, Chief Judge.

text:
    COUNTRY CLUBS OF SARASOTA, LTD., Appellant, v. ZAUN EQUIPMENT, INC., Appellee.
    No. FF-125.
    District Court of Appeal of Florida, First District.
    Oct. 5, 1977.

      John W. Griffis, III, of Trawick, Griffis & Ferrell, Sarasota, for appellant.
    Robert A. Skeels of Milam & Wilbur, Jacksonville, for appellee.
   McCORD, Chief Judge.

This interlocutory appeal is from an order denying appellant’s (garnishee’s) motion for relief from final judgment in garnishment entered upon a default which had been entered on the same day. As to appellant’s contention that appellee did not obtain legal service of the writ of garnishment, we disagree. As to appellant’s further contention that the default and the final judgment entered thereon should have been set aside by the trial court, we agree and reverse.

Appellant Country Clubs of Sarasota, Ltd., is a Florida limited partnership organized and existing under the Florida Limited Partnership Law Part I, Chapter 620, Florida Statutes (1975). It was formed with two general partners in late 1975; RMS Development Corp., a Florida Corporation, and Florida Country Clubs, Inc., a Florida Corporation, referred to hereafter as RMS and FCC respectively. Subsequent to appellant filing its certificate of limited partnership and limited partnership agreement with the Florida Department of State, it duly filed and recorded with that Department amendments to its certificate of limited partnership and limited partnership agreement twice during the next few months. The most recent amendment, dated April 1, 1976, listed FCC as a general partner with plenary authority over the affairs of garnishee including exclusive control over appellant’s business and its managements, exclusive authority to borrow or lend money on behalf of appellant; exclusive authority to disburse appellant’s funds; exclusive authority to execute instruments conveying appellant’s property; and authority to defend in its own name or in appellant’s name all civil suits against appellant. At no time material to this action did appellant further amend its certificate of limited partnership and limited partnership agreement.

This garnishment action was predicated upon a judgment in appellee’s favor against Gulf-To-Bay Lawn Sprinklers of Sarasota, Inc., in the amount of $8,549.14. Based upon information appellee had received to the effect that appellant owed Gulf-To-Bay Lawn Sprinklers between $7,000 and $8,000, appellee obtained issuance of a writ of garnishment against appellant. Before doing so, however, appellee’s attorney obtained from the Department of State the latest information on appellant’s composition, and the officers and agents of its corporate general partners. The writ was served on appellant on August 31,1976, through its general partner FCC by personally serving David A. Steves, FCC’s registered agent, for service of process and also FCC’s attorney. Thereafter, Mr. Steves called appel-lee’s attorney to advise that he had been served with the writ and to obtain additional time to respond. Subsequently, appel-lee’s attorney received a letter from Mr. Steves confirming that appellant would have an additional 20 days to respond to the writ. When this time expired, appellee’s attorney called Mr. Steves, and Steves requested and was extended an additional week to 10 days to respond. When this time elapsed with no response being filed, appellee’s attorney wrote Mr. Steves a letter. Several days later Mr. Steves called appellee’s attorney and either told him to go ahead and take a default because his people didn’t think anything could be done about it (he had previously stated that he considered the service was deficient) or told him that they were not going to take any action. Mr. Steves testified that his only contact in this matter was with the officials of FCC; that he had no connection with RMS. Following the attorney’s last above communication with Steves, appellee obtained a default judgment and a final judgment on November 24, 1976, for the full amount of its claim against Gulf-To-Bay Lawn Sprinklers — $8,549.14.

At the hearing on the motion to set aside the final judgment, appellant put in evidence an assignment dated August 7, 1976, of FCC’s partnership rights, title and interest in appellant to RMS. Robert A. Schroeter, credit manager of appellee, testified as follows to statements made by Mr. Salsman, vice-president of RMS, in regard to the garnishment:

“Q O.K. What were the statements that Mr. Salsman made in regard to the purported writ of garnishment?
' A He said something had come across his desk with the name Gulf-To-Bay, a garnishment, Gulf-To-Bay, and he did not pay much attention to it because of the fact it was Gulf-To-Bay and something about he didn’t pay much attention to it.
“Q Did he ever make any reference to whether he saw a writ of garnishment?
“A He didn’t know what it was, he said with the name Gulf-To-Bay. He said he didn’t know exactly what it was.”

It is entirely unclear whether or not the paper that went over Mr. Salsman’s desk was the writ of garnishment or the final judgment in garnishment. Appellant contends that FCC at the time of service of the writ of garnishment was no longer a corporate general partner of appellant and that § 48.061, Florida Statutes, does not permit process against a limited partnership by service on the resident agent of a former corporate general partner. § 48.061(2) provides:

“Process against a domestic limited partnership shall be served on any general partner and is as valid as if served on each individual member thereof. After service on any general partner, plaintiff may proceed to judgment and execution against the limited partnership and all of the general partners individually. Service of process may be made under §§ 48.071 and 48.21 on limited partnerships.”

Appellant contends that the foregoing statute requires personal service on a corporate general partner and that such can be accomplished only by serving corporate officers or directors. Nothing in the above statute, however, makes this requirement. Strictly speaking, there can be no personal service upon a corporation because it is a fictitious person. There can only be such constructed or substituted service as the law may provide. Clearwater Mercantile Co. v. Roberts, Johnson, Rand Shoe Co., 51 Fla. 176, 40 So. 436 (1906). Personal service on a corporation means personal service on its officers or agents. Smetal Corporation v. West Lake Inv. Co., 126 Fla. 595, 172 So. 58 (Fla.1936). § 48.081, Florida Statutes (1975), provides for such personal service on officers or agents of a corporation including, as an alternative to all corporate officers, the registered agent designated by the corporation to accept service of process on its behalf. Thus, in the case sub judice, service upon the registered agent of FCC is as good personal service as may be obtained on FCC and such service upon FCC is legal service upon a partnership of which it is a member.

Appellant cannot rely upon FCC’s assignment of its partnership interest to appellant’s other general partner RMS to defeat service of process. At the time of such service, appellant held itself out to the world through its certificate of limited partnership on file with the Florida Department of State as a partnership whose partners were FCC and RMS. In reliance upon appellant’s act, appellee served FCC. If that service were to now be held invalid, appellee will have acted to its detriment in reliance upon appellant’s act. Appellant is therefore estopped to deny that FCC was no longer a partner at the time of service.

Appellant also contends that the default judgment should be set aside because it did not know of the service of the writ of garnishment and is not guilty of any gross negligence in failing to respond to the writ. Having ruled that the court had jurisdiction, we must look to the facts as shown by the evidence in resolving the question of whether or not the trial judge abused his discretion in denying appellant’s requested relief from the final judgment.

Notice to one who is in fact a partner at the time of such notice would, of course, notify the partnership of the suit. Here, however, there is uncontradicted evidence that FCC, the “partner” who was served and thereby received the notice, was no longer a partner at the time of such service.. The service was made upon its resident agent who had no connection with the remaining partner, RMS. Although there may be an inference that RMS had actual notice of the garnishment proceeding, such is only an inference, and there is no evidence that RMS knew of the suit until after the final judgment had been entered. If appellant is held to the default judgment in this garnishment action without being afforded an opportunity to prove its defense, it thus may be forced to satisfy appellee’s judgment against Gulf-To-Bay Lawn Sprinklers from its own funds rather than from garnishment of money owing to appellant by Gulf-To-Bay. Certainly if it had no knowledge of the garnishment action until after final judgment, it could not be guilty of gross negligence in failing to respond to the writ. The closest the proof came to knowledge on the part of RMS was the above-quoted testimony that its vice-president, Mr. Salsman, told appellee’s credit manager that something had come across his desk with the name “Gulf-To-Bay, garnishment” on it and that he didn’t know what it was. While this could have been the writ of garnishment, it could also have been the final judgment in garnishment. It would only be material to the question presented here if it were the former.

The purpose of default is to speed a cause and prevent a defendant from impeding the plaintiff in the prosecution of his claim. Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9 (1942). Defaults are not intended to furnish an advantage to a plaintiff so that a defense may be defeated or judgment reached without the difficulty that arises from a contest by a defendant. Hamilton v. Bogorad, Klein, etc., Inc., 275 So.2d 41 (Fla. 3 DCA 1973). Defaults and default judgments may be vacated within the judicial discretion of the trial court upon a showing of excusable neglect and the existence of a meritorious defense. Compare Florida Investment Enterprises, Inc. v. Kentucky Company, 160 So.2d 733 (Fla. 1 DCA 1964); North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). This discretion should be liberally exercised and all reasonable doubt resolved in favor of granting applications for relief so as to permit a determination of the controversy upon the merits rather than upon procedural technicalities. Gordon v. Vaughan, 193 So.2d 474 (Fla. 3 DCA 1967); Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540 (Fla. 3 DCA 1972). The rule with respect to remedying defaults in actions generally is applicable to garnishment proceedings. F. W. Dodge Co. v. Southern Industrial Savings Bank, 207 So.2d 516 (Fla. 3 DCA 1968). Upon the evidence presented in this case it was an abuse of discretion for the trial judge not to vacate the default and the final judgment entered upon the default.

Reversed and remanded.

RAWLS, J., concurs.

SMITH, J., concurs and dissents.

SMITH, Judge,

concurring and dissenting:

I join in the majority’s decision that service of the writ of garnishment on FCC was effective service on the limited partnership. Persons who hold themselves out as partners are estopped to deny the partnership relationship to the detriment of those relying on it. F. J. Dubos and Company v. Jones, 34 Fla. 539, 16 So. 392 (1894); Webster v. Clark, 34 Fla. 637, 16 So. 601 (1894). Since the primary purpose of serving process is to give the named defendant notice of the proceeding, State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145,127 A.L.R. 1263 (1940), it is anomalous to hold that service was sufficient but that the default judgment should be vacated because appellant received no actual notice of the proceeding. See Barnett Bank of Clearwater, N.A. v. Folsom, 306 So.2d 186 (Fla. 2d DCA 1975). In Folsom process was served on Chester Johnson’s wife at their home. She never brought the summons to his attention. The court held the proper test of the validity of service was not whether the summons was in fact brought to defendants attention, but rather whether complainant could properly presume that process would be brought to his attention. The court held that process was properly served and that the judgment was not subject to vacation simply because the defendant had no actual knowledge of the suit.

Compare Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977), in which Wright served a summons and complaint on Sterling, a foreign corporation, by serving Sterling’s resident agent. Through a clerical error Sterling was not notified of the suit until after default was entered. After the trial judge vacated the default, the District Court of Appeal, Second District, reversed, relying on Folsom. On petition for writ of certiorari, the Supreme Court reversed, holding that while lack of knowledge of the suit would not justify vacation of the default, the trial court acted within its discretion because the agent’s failure to notify Sterling was inadvertent and constituted excusable neglect.

There is an evident distinction between this case and Sterling Drug and an inescapable similarity between this case and Folsom. In Sterling Drug the default resulted from inadvertent error which could have constituted excusable neglect whether committed by the agent or by the corporation. In Folsom no excusable neglect was shown on the part of Johnson and his wife. Here there was evidence that appellant’s general partner, upon whom process was properly served, decided to ignore the summons on counsel’s erroneous advice that service was insufficient. That is not excusable neglect. In my view, a defendant who seeks to have a default judgment set aside for excusable neglect must account not only for his own neglect but also for that of'his agent who had knowledge of the action and some duty, by law or by contract, to inform the defendant. Cf. Allen v. Wright, 350 So.2d 111 (Fla. 1st DCA 1977). The trial judge did not err in denying appellant’s motion to set aside the judgment. I would affirm.

      . Wright v. Sterling Drug, Inc., 321 So.2d 460 (Fla. 2d DCA 1975).


author: MILLS, Acting Chief Judge.

text:
    Robert A. PETERSON, Petitioner, v. The STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent.
    No. GG-394.
    District Court of Appeal of Florida, First District.
    Oct. 5, 1977.
    Howard S. Rhoads of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, for petitioner.
    Carole Haughey and William P. White, Jr., Tallahassee, for respondent.
   ON MOTION TO DISMISS

MILLS, Acting Chief Judge.

The Department of Environmental Regulation (Department) entered an order adverse to Mr. Peterson. He filed a notice of appeal with the Environmental Regulation Commission (Commission) and filed a petition for review with this court. The Department has moved to dismiss the petition filed here because Mr. Peterson has not exhausted the administrative remedy of appeal to the Commission. We agree and grant the motion to dismiss.

Section 403.171, Florida Statutes (1975), enacted in 1967, provides that “Any party aggrieved by any action of the department may seek appropriate judicial review”.

Section 403.121(3), Florida Statutes (1975), enacted in 1967, provides that every order of the department is reviewable only in accordance with the Administrative Procedure Act.

In 1975, by Section 20.261(3), Florida Statutes (1975), the legislature created the Commission and by Section 403.804(1), Florida Statutes (1975), provided that “The commission shall also act as an adjudicatory body for final actions taken by the department, except for those appeals and decisions authorized in ss. 20.261(12) and 253.76”.

Subsequently, after public notice and hearing, the Department adopted rules governing appeals of its final orders to the Commission. Section 120.53(2)(b), Florida Statutes (1975). The rules were published by the Secretary of State and are set forth in Chapter 17-1, Part III of the Florida Administrative Code. Section 120.55(l)(b), Florida Statutes (1975).

The provisions of Sections 403.171 and 403.121(3), and 403.804(1) are inconsistent. If possible, we must construe the inconsistencies so as to reconcile them. Wiggins v. State, 101 So.2d 833 (Fla. 1st DCA 1958). Otherwise, we must resolve the inconsistencies in favor of the last expression of the legislative will. Cable-Vision, Inc. v. Freeman, 324 So.2d 149 (Fla. 3d DCA 1976).

The inconsistencies of Sections 403.-171 and 403.121(3), and 403.804(1) can be reconciled by construing them to provide for judicial review of final agency action after review of the action by the Commission. This construction also gives effect to the last expression of the legislature. We so construe them.

Having so construed Sections 403.171, 403.121(3) and 403.804(1), the review action by the Commission must be exhausted before judicial review can commence here. Phillips v. Santa Fe Community College, 342 So.2d 108 (Fla. 1st DCA 1977).

The Department’s motion to dismiss is granted.

SMITH and ERVIN, JJ., concur.