text:
    In re CODE OF JUDICIAL CONDUCT (FINANCIAL DISCLOSURE).
    No. 46773-A.
    Supreme Court of Florida.
    July 28, 1977.
    Gunter Stephenson, Winter Haven, Chairman, and John T. Wigginton, Tallahassee, Member, for the Special Advisory Committee on the Code of Judicial Conduct.
   PER CURIAM.

The Code of Judicial Conduct places more restrictive limitations upon judicial officers as it relates to their financial activities than are now prescribed for other public officials. This Court has previously recognized the need to amend Canons 5 and 6 of the Code of Judicial Conduct relating to financial disclosure and gifts in order to effectively coordinate the method of reporting for judicial officers under Article II, Section 8, of the Constitution of Florida, and the financial disclosure forms prescribed by the Ethics Commission. We established a special committee and requested that it make recommendations to this Court as to how Canons 5 and 6 should be modified to comply with the new constitutional provision, and requested the chairman of the committee, The Honorable Gunter Stephenson, formerly chairman of the Committee on Standards of Judicial Conduct, and The Honorable John T. Wigginton, General Counsel of the Judicial Qualifications Commission, to meet with the Ethics Commission and its staff to attempt to coordinate the means of financial reporting for judicial officers of this state. Their report recommends appropriate amendments which we hereby adopt making only procedural and stylistic changes and adding commentary for full understanding of the amendments.

We hereby amend Canon 5, subsection C(4)(c), to read as follows:

(c) a judge may accept any other gift, bequest, favor, or loan only if the donor is a relative or is not a party or other person whose interests have recently come or may likely come before him, in the immediate future, and, if its value exceeds $100, the judge reports it in the manner prescribed in Canon 6.

Canon 5C(4)(c) remains the same except for its reference to the method of reporting gifts in Canon 6.

We hereby amend Canon 6 to read as follows:

CANON 6
FISCAL MATTERS OF A JUDGE SHOULD BE CONDUCTED IN A MANNER AS TO NOT GIVE THE APPEARANCE OF INFLUENCE OR IMPROPRIETY; A JUDGE SHOULD REGULARLY FILE PUBLIC REPORTS AS REQUIRED BY ARTICLE II, SECTION 8, OF THE CONSTITUTION OF FLORIDA, AND SHOULD PUBLICLY REPORT GIFTS; ADDITIONAL FINANCIAL INFORMATION SHALL BE FILED WITH THE JUDICIAL QUALIFICATIONS COMMISSION TO ENSURE FULL FINANCIAL DISCLOSURE.

A. Compensation for Quasi-Judicial and Extra-Judicial Services and Reimbursement of Expenses:

A judge may receive compensation and reimbursement of expenses for the quasi-judicial and extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge in his judicial duties or otherwise give the appearance of impropriety, subject to the following restrictions:
1. Compensation. Compensation should not exceed a reasonable amount nor should it exceed what a person who is not a judge would receive for the same activity.
2. Expense Reimbursement. Expense reimbursement should be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, to his spouse. Any payment in excess of such an amount is compensation.
B. Public Financial Reporting:
1. Income and Assets. A judge shall file such public report as may be required by law for all public officials to comply fully with the provisions of Article II, Section 8, of the Constitution of Florida. The form for public financial disclosure shall be that recommended or adopted by the Florida Commission on Ethics for use by all public officials. The form shall be filed in the office of the Secretary of State on the date prescribed by law, and a copy shall be filed simultaneously with the Judicial Qualifications Commission.
2. Gifts. A judge shall file a public report of all gifts which are required to be disclosed under Canon 5C(4)(c) of the Code of Judicial Conduct. The report of gifts received in the preceding calendar year shall be filed in the office of the Secretary of State on September 16,1977, and on or before July 1 of each year thereafter. A copy shall be filed simultaneously with the Judicial Qualifications Commission. ■
0. Confidential Financial Reporting to the'Judicial Qualifications Commission:
To ensure that complete financial information is available for all judicial officers, the following documents shall be filed with the Judicial Qualifications Commission on September 15, 1977, and on or before July 1 of each year thereafter, if hot already included in the public report to be filed under Canon 6B(1) and (2):
1. A true copy of the judge’s most recent Federal Income Tax Return filed with the federal government, which shall be transmitted in a sealed envelope and placed by the Commission in safekeeping, and be opened only pursuant to a majority vote of the Commission duly assembled.
2. A verified list of the names of the corporations and other business entities in which the judge has a financial interest as of December 31 of the preceding year, which shall be transmitted in a separate sealed envelope, placed by the Commission in safekeeping, and not be opened or the contents thereof disclosed except in the manner hereinafter provided.
At any time during or after the pend-ency of a cause, any party may request information as to whether the most recent, list filed by the judge or judges before whom the cause is or was pending contains the name of any specific person or corporation or other business entity which is a party to the cause or which has a substantial direct or indirect financial interest in its outcome. Neither the making of the request nor the contents thereof shall be revealed by the chairman to any judge or other person except at the instance of the individual making the request. If the request meets the requirements hereinabove set forth, the chairman shall render a prompt answer thereto and thereupon return the report to safekeeping for retention in accordance with the provisions hereinabove stated. All such requests shall be verified and transmitted to the chairman of the Commission on forms to be approved by it.
Commentary
Subparagraph A prescribes guidelines for additional compensation and the reimbursement of expense funds received by a judge. The substantive wording is identical to the first three paragraphs of Canon 6 in the ABA Code of Judicial Conduct. For additional commentary, see generally, Thode, Reporters Notes to Code of Judicial Conduct 92 (1973) [Canon 61-
Subparagraphs B and C prescribe the three types of financial disclosure reports required of each judicial officer.
The first is the Ethics Commission’s constitutionally required form pursuant to Article II, Section 8, of the Constitution. It must be filed each year as prescribed by law. The financial reporting period is for the previous calendar year. The filing of the income tax return is a permissible alternative. If the income tax return alternative is not filed with this report, it must be filed as part of the confidential report required to be filed by subparagraph C.
The second is a report of gifts received during the preceding calendar year to be filed publicly in the Secretary of State’s office. The gifts to be reported are in accordance with Canon 5C(4)(c). This reporting is in lieu of that prescribed by Section 112.3145(l)(c)(3), Florida Statutes (1975), as stated in the Supreme Court’s opinion rendered in In re Code of Judicial Conduct, 281 So.2d 21 (1973). The form for this report is as follows:
FORM 6A GIFT DISCLOSURE.
All judicial officers must file with the Secretary of State a list of all gifts received during the preceding calendar year of a value in excess of $100.00, as provided in Canon 5C(4) and Canon 6(b)(2) of the Code of Judicial Conduct.
The third financial disclosure report is prescribed in subparagraph C. This provision ensures that there will be complete financial information for all judicial officers available with the Judicial Qualifications Commission by requiring that full disclosure be filed confidentially with the Commission in the event the limited disclosure alternative is selected under the provisions of Article II, Section 8.

The amendment to this Canon requires in 6B(2) a separate gift report to be filed in the office of the Secretary of State on September 15, 1977, and on July 1 of each year thereafter. The form to be used for that report is included in the commentary to Canon 6. It should be noted that Canon 5, as it presently exists, restricts and prohibits the receipt of certain gifts. This provision is not applicable to other public officials.

With reference to financial disclosure if the judge chooses the limited disclosure alternative available under the provisions of Article II, Section 8, of the Constitution of Florida, without the inclusion of his Federal Income Tax Return, then he must file his tax return confidentially with the Commission and also list the names of corporations or other business entities in which he has a financial interest even though the amount is less than $1,000. This information remains confidential until a request is made by a party to a cause before the judge, This latter provision continues to ensure that complete financial information for all judicial officers is available with the Judicial Qualifications Commission and that parties who are concerned about a judge’s possible financial interest have a means of obtaining that information as it pertains to a particular cause before the judge.

The amendments to Canons 5 and 6 are effective immediately, and all judicial officers of this state are directed to comply therewith on the dates prescribed therein.

It is so ordered.

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

APPENDIX

REPORT

The undersigned Gunter Stephenson as Chairman, and John T. Wigginton as member of the Special Advisory Committee on the Code of Judicial Conduct heretofore appointed by this Court, in response to the order entered herein on March 10, 1977, respectfully report that they met with the staff of the Ethics Commission on March 3, 1977, in an attempt to coordinate the means of financial reporting of judicial officers of this State, and as a result thereof recommend to the Court that the following changes be made in Canons 5 and 6 of the Code of Judicial Conduct in order to comply with the new Section 8, Article II of the Constitution of the State of Florida, to witi

1. Amend Canon 6 by changing the last two words in subsection 0(4)(c) “Canon 8G" to “Canon 6A3."

2. Amend the title to Canon 6 to read:

A JUDGE SHOULD REGULARLY FILE SUCH PUBLIC REPORT AS IS REQUIRED BY LAW TO COMPLY WITH THE PROVISIONS OF ARTICLE II, SECTION 8 OF THE CONSTITUTION OF THE STATE OF FLORIDA, AND IN ADDITION SHALL FILE AN ANNUAL FINANCIAL REPORT WITH THE JUDICIAL QUALIFICATIONS COMMISSION.

3. Amend sub-paragraph A3 to read:

“3. Public Reporting. A judge should file such public report as may be required by law to comply fully with the provisions of Article II, Section 8, of the Constitution of the State of Florida. Such report shall include gifts which are required to be reported pursuant to the provisions of Canon 5C(4)(e) of this Code,”

4. Strike Canon 0B in its entirety and substitute in lieu thereof the following:

“B. A judge shall file with the Judicial Qualifications Commission of this State on or before July 1, of each year hereafter a financial report consisting of the following documents:

1. A true copy of the judge’s most recent Federal Income Tax Return filed with the federal government which shall be transmitted in a sealed envelope and placed by the Commission in safekeeping and be opened only pursuant to a majority vote of the Commission duly assembled.

2. A verified list of the names of the corporations and other business entities in which the judge has a financial interest which shall be transmitted in a separate sealed envelope, placed by the Commission in safekeeping, and not be opened or the contents thereof disclosed except in the manner hereinafter provided.

At any time during or after the pendency of a cause, any party may request information as to whether the most recent list filed by the judge or judges before whom the cause is or was pending contains the name of any specific person or corporation or other business entity which is a party to the cause or which has a substantial, direct, or indirect financial interest in its outcome. Neither the making of the request nor the contents thereof shall be revealed by the chairman to any judge or other person except at the instance of the individual making the request. If the request meets the requirements hereinabove set forth, the chairman shall render a prompt answer thereto and thereupon return the report to safekeeping for retention in accordance with the provisions hereinabove stated. All such requests shall be verified and transmitted to the chairman of the Commission on forms to be approved by it.”

Respectively submitted this 17th day of March, 1977.

/s/ Gunter Stephenson

GUNTER STEPHENSON

CHAIRMAN

/s/ John T. Wigginton

JOHN T. WIGGINTON

MEMBER

      . The Florida Bar Re: Petition for Advisory Opinion Concerning the Applicability of Chapter 74-177, 316 So.2d 45 (Fla.1975); In Re: Code of Judicial Conduct (Fla., Order of the Court filed October 9, 1975) (order establishing Special Advisory Committee on the Code of Judicial Conduct); In Re: Code of Judicial Conduct (Financial Disclosure), Case No. 46,773-A (Fla., filed March 10, 1977) (order extending date for filing financial disclosure form required by Canon 6 to July 1, 1977); In Re: Code of Judicial Conduct (Financial Disclosure), Case No. 46,773-A (Fla., filed June 22, 1977) (order extending disclosure required by Canon 6, but recognizing need to comply with Article II, Section 8, of the Florida Constitution).

      . The report of the Committee is contained in the Appendix to this opinion.


source: Caselaw Access Project

author: SMITH, ROBERT P., Jr., Associate Judge.

license: Public Domain

text:
    In re ESTATE of Perry CARLTON, Deceased. Lucy Jane Carlton ROGERS, Appellant, v. Alberta Carlton HAYES, Ruby C. Teague, Charles H. Carlton, et al., Appellees.
    No. 75-1874.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1977.
    Rehearing Denied March 25, 1977.
    Robert Jackson, Law Offices of Jackson & Clem, Vero Beach, for appellant.
    Raymond E. Ford, Fort Pierce, and John T. Brennan, Brennan, McAliley, Albury & Hayskar, Fort Pierce, for appellees.
   SMITH, ROBERT P., Jr., Associate Judge.

Lucy Carlton Rogers appeals from a circuit court adjudication in the Estate of Perry Carlton, who died intestate April 4, 1970, that Lucy, adopted daughter of the intestate’s deceased brother Lindley, is not an heir at law of the intestate. At the instance of nieces, nephews and others claiming through deceased nieces and nephews, the circuit court held that Lucy’s claim is foreclosed by the Supreme Court’s decision in In re Hewett’s Estate, 153 Fla. 137, 13 So.2d 904 (1943), and that legislation expanding the rights of adopted children since 1941, the critical date in Hewett, does not affect the result.

At the times relevant in Hewett and in the present case the order of devolution of an intestate’s property was provided by § 731.23, F.S., in relevant part as follows:

“(5) If there is none of the foregoing [no surviving spouse, lineal descendants or parent], to the brothers and sisters and the descendants of deceased brothers and sisters.
“(6) If there is none of the foregoing, the estate shall be divided into moieties, one of which shall go to the paternal and the other to the maternal kindred in the following course:
“(b) If there is no grandfather or grandmother, to the uncles and aunts and the descendants of such of them as may be deceased.”

In rejecting Lucy’s claim as the adopted daughter of Perry Carlton’s brother, the circuit court in this case resolved the controversy on the principal if not the only theory there submitted by Lucy, namely, that legislation intervening since 1941 reversed the result in Hewett, supra, n. 1, 13 So.2d 904. We sustain Lucy’s claim as a matter of law, but by another route.

The Court in Hewett held that the claimant, though by statute the heir at law and lineal descendant of her adoptive father, §§ 72.06, 731.30, F.S.1941, could not claim to be a descendant of her father’s mother Thankful Collwell, the deceased aunt of the intestate. The Hewett court rejected claimant’s argument

“that an adopted child could not ‘for the purpose of inheritance be regarded as a lineal descendant of its adopting parents’ without also being regarded as the lineal descendant of its adopting parents’ ancestors . . ..” 13 So.2d at 906.

Therefore, the Hewett claimant was not among the “descendants of such . deceased [uncles and aunts],” to whom the estate passed by operation of § 731.23(6)(b), F.S.1941, supra.

In the present case the question is not whether statutes have made an adopted child the descendant of her father’s ancestors but rather whether statutes have made an adopted child a descendant of her father, that is to say, a descendant of the deceased brother of Perry Carlton, the intestate. Sec. 731.23(5), F.S.1969, supra. Sec. 731.30, F.S.1941 and 1969, providing that the adopted child “shall be regarded as a lineal descendant of his adopting parents,” plainly had that effect, as was recognized by the court in Hewett, 13 So.2d at 907. It follows that appellant Lucy Carlton Rogers, like the other descendants of deceased brothers and sisters of Perry Carlton, was entitled to share in his intestate estate.

REVERSED.

COBB, WARREN H., Associate Judge, concurs.

CROSS, J., dissents.

      . Sec. 72.06, F.S.1941, provided that an adopted child “shall be declared the child and heir-at-law of the person applying for his adoption.” In 1943 the Legislature added that the adopted child shall be “entitled to all rights and privileges . . . of a child born to such parent or parents in lawful wedlock.” Ch. 21759, § 16, Fla.Laws 1943; as further amended, § 63.151, F.S.1969. Further legislation in 1973 and 1975, which is not arguably applicable to the present case, created the same “relationship between the adopted person and the petitioner and all relatives of the petitioner that would have existed if the adopted person were a legitimate blood descendant of the petitioner.” Sec. 63.-172(c), F.S.1975. See also § 731.30, F.S.1973.


author: McCORD, Judge. McCORD, Chief Judge.

text:
    KAWASAKI OF TAMPA, INC., Petitioner, v. John D. CALVIN, as Director of the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles, et al., Respondents.
    No. DD-53.
    District Court of Appeal of Florida, First District.
    May 3, 1977.
    As Corrected On Rehearing Aug. 18, 1977.

      Paul R. Pizzo, Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, and Joseph C. Jacobs and Robert J. Angerer, Er-vin Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    E. J. Whitney, Asst. Gen. Counsel, Tallahassee, for respondent Calvin.
    James A. Murman, Tampa, for respondent Brandon Kawasaki.
    Peter J. Winders and Eurich Z. Griffin, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for respondent Kawasaki Motors Corp.
   McCORD, Judge.

This is á petition for review of final agency action of the Director of the Division of Mbtof’Vehicle'S of'the^DepaftfnSAt'bf 'Highway Safety and Motor Vehicles, State of Florida, (hereafter referred to as the Director) granting the application of respondent Brandon Kawasaki for a license as a franchised Kawasaki motor vehicle dealer in Hillsborough County. Petitioner, Kawasaki of Tampa, Inc., the only presently licensed franchised Kawasaki motor vehicle dealer in Hillsborough County participated in the proceeding as a protestant to Brandon Kawasaki’s application. On May 26, 1976, a hearing was conducted by the Director and on July 13, 1976, the Director issued his findings of fact and conclusions of law and ordered that a license be issued to Brandon Kawasaki. Thereafter, Kawasaki of Tampa, Inc., filed a petition for rehearing in which it challenged the authority of the Director to issue motor vehicle dealer licenses, contending that such authority is vested by statute in the Department of Highway Safety and Motor Vehicles (the Governor and Cabinet) and not in the Director of the Division of Motor Vehicles. The Director took no action on the petition for rehearing since there was no authorization for the filing of such petition.

Petitioner contends that the Director did not have authority to issue a motor vehicle dealer license. We agree and reverse.

Petitioner, relying upon § 320.27, Florida Statutes (1975), contends that the authority to hold hearings and pass upon applications for motor vehicle dealer licenses is vested in the Department of Highway Safety and Motor Vehicles (the Governor and Cabinet) and not in the Director of the Division of Motor Vehicles. § 320.27, Florida Statutes (1975), provides in pertinent part:

“(4) License Certificate. — A license certificate shall be issued by the department in accordance with such application when the same shall be regular in form and in compliance with the provisions of this section. . . (Emphasis supplied.)

Subsection (l)(a) of § 320.27 defines “department” as follows:

::“(a) .‘Department’ ..means the- 'department of highway safety and motor vehicles.”

Section 320.665(1), Florida Statutes (1975), provides in pertinent part as follows:

“(1) In the event the department shall conduct any hearing pursuant to the provisions of §§ 320.60-320.70, the hearing shall be conducted pursuant to chapter 120, the administrative procedure act, and the department shall have the power to conduct hearings pursuant to that act. .” (Emphasis supplied.)

Section 120.57(l)(a), Florida Statutes (1975), —the Administrative Procedure Act — provides in part as follows:

“(a) A hearing officer assigned by the division shall conduct all hearings under this subsection, except for:
1. Hearings before agency heads
[HJearings before a member of an agency head . . . * * *”

§ 120.52(3) states that agency head “means the person or collegial body in a department or other governmental unit statutorily responsible for final agency action.” § 20.-24(1), Florida Statutes (1975), provides:

“The head of the department of highway safety and motor vehicles is the governor and cabinet.”

We were confronted with the same question in McCulley Ford, Inc. v. Calvin, 308 So.2d 189 (Fla. 1 DCA 1974), and in Lynch-Davidson Motors, Inc. v. Calvin, 308 So.2d 197 (Fla. 1 DCA 1974). In those cases we pointed out that Chapter 70-424, Laws of Florida, enacted by the 1970 session of the Florida Legislature (the substantive law which has been incorporated in Florida Statutes 1971, Florida Statutes 1973, and Florida Statutes 1975) used the word “director” in the instances where the word “department” appears in the above quoted passages of § 320.27(4) and § 320.665(1). “Director” was defined in that law and subsequently defined in the succeeding editions of the Florida Statutes to mean the Director of the Division of Motor Vehicles. The statutory revision service, in compiling Florida Statutes (1971), had redrafted Chapter 70-424 arbitrarily and contrary to law by substituting the word “department” in Florida Statutes (1971) whenever the Legislature had used the word “director” in Chapter 70-424. The substitution changed the authority to hear applications and issue motor vehicle dealer licenses from the Director of the Division of Motor Vehicles to the Department of Highway Safety and Motor Vehicles if Florida Statutes (1971) or (1973) prevailed over Chapter 70-424. We held in McCulley and Lynch-Davidson that the change was not effective there because the motor vehicle dealer licenses were issued prior to the publication of Florida Statutes (1973); that Chapter 70-424 was at that time the official primary evidence of the law as enacted. Florida Statutes (1971), was then only prima facie evidence of the law. In this regard we said the following in McCulley:

“Chapter 73-70, Laws of Florida 1973, does contain statutory provisions which state that all 1970 Session Laws not included in Florida Statutes 1973, will be repealed effective on the publication of the 1973 Florida Statutes (Sec. 11.2422). However, since Florida Statutes 1973 were not published prior to jurisdiction vesting in this Court, and were not in effect at the time of the actions giving rise to this controversy, we have no occasion to here consider their effect.”

In the case sub judice we have an entirely different situation. Here, at the time of both the hearing and order of the Director (May and July, 1976, respectively) not only had Florida Statutes (1973) been published, but Florida Statutes (1975) had also been published. In both codifications the word “department” appeared rather than “director.” Ch. 73-70, Laws of Florida, enacted Florida Statutes (1973) effective “immediately upon publication” and repealed every statute of a general and permanent nature enacted by the state or by the territory of Florida at or prior to the regular 1971 legislative session. Thus, Chapter 70-424, Laws of Florida, was repealed effective with the publication of Florida Statute (1973), and at all times since then the authority to hear and determine applications for motor vehicle dealer licenses has been vested in the Department of Highway Safety and Motor Vehicles (the Governor and Cabinet) rather than the Director of the Division of Motor Vehicles. Respondents contend that if the change of authority from the Director to the department was effected, the authority to hear and determine such applications was revest-ed in the Director by Fla.Admin.Code Rule 15C-1.08, a rule of the Department of Highway Safety and Motor Vehicles which became effective on June 22,1976 — prior to the Director’s order in the case sub judice but subsequent to the hearing. The rule states in pertinent part as follows:

a * * *
Upon receipt of such notice the Director shall be authorized to proceed with making the determination required by Section 320.642, Florida Statutes, and shall cause a notice to be sent to the presently licensed franchised dealers for the same make or makes of vehicles in the territory or community in which the new dealership proposes to locate, advising such dealers of the provisions of Section 320.642, Florida Statutes, and giving them and all real parties in interest an opportunity to be heard on the matters specified in that Section. The Director may make such further investigation and hold such hearing as he deems necessary to determine the questions specified under Section 320.642. A determination so made by the Director shall be effective as to such license for a period of twelve (12) months from the date of the Director’s Order, or date of final judicial determination in the event of an appeal, unless for good cause a different period is set by the Director in his order of determination.”

Respondents contend that § 20.05, Florida Statutes (1975), grants to the Department authority to adopt such a rule transferring its authority to the director. § 20.05, Florida Statutes (1975), provides in pertinent part as follows:

“Heads of departments; powers and duties. — Each head of a department, except as otherwise provided herein, shall:
(l)(a) * * *
(b) Have authority, without being relieved of responsibility, to execute any of the powers, duties, and functions vested in said department or in any administrative unit thereof through said administrative units and through such assistants and deputies as shall be designated by the head of the department from time to time, unless the head of the department is explicitly required by law to perform the same without delegation. * * * ” (Emphasis supplied.)

§ 120.57, Florida Statutes, sets forth the procedure which must be followed when an agency determines the substantial interest of a party. Subsection (l)(a), the pertinent part of which we have quoted above, requires (with certain exceptions not material here) that a hearing officer assigned by the Division of Administrative Hearings of the Department of Administration conduct all hearings in formal proceedings except hearings before agency heads or a member of an agency head. The law requires, therefore, that applications for motor vehicle dealer licenses shall be heard either by a hearing officer assigned by the Division of Administrative Hearings, the Governor and Cabinet, the Governor or a member of the Cabinet. Since such is explicitly required by law, there is no authority for the Department to delegate its authority in the premises to the Director of the Division of Motor Vehicles. The rule (Rule 15C-1.08) which purports to authorize such delegation is therefore invalid. The hearing proceedings before the Director and the findings and order entered thereon are vacated and set aside.

Reversed and remanded with directions that the application of Brandon Kawasaki proceed to hearing under Chapter 120, Florida Statutes (1975), before the head of the Department of Highway Safety and Motor Vehicles, a member thereof, or a hearing examiner of the Division of Administrative Hearings.

MILLS and SMITH, JJ., concur.

ON PETITION FOR REHEARING

McCORD, Chief Judge.

While this cause has been pending on petition for rehearing, respondents have filed notice of amendments to Chapter 320, Florida Statutes, enacted by the 1977 Legislature of Florida, and a supplement to such notice. Petitioner has filed a response. By the notice and supplement, respondents point out that Chapter 77-357, Laws of Florida, amended Chapter 320, Florida Statutes, and provided that the Director of the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles shall have the power to conduct any hearing pursuant to the provisions of §§ 320.27-320.274, notwithstanding the provisions of § 120.57(l)(a) and providing that the Director shall thereupon make his rulings and orders which shall constitute final agency action. The effect of this statute is to correct the error made by the Division of Statutory Revision in its compiling of Florida Statutes (1971) when it redrafted Chapter 70-424 contrary to law by substituting the word “department” in Florida Statutes (1971) wherever the legislature had used the word “director” in Chapter 70-424.

It is a general rule that legislation is presumed to operate prospectively unless there exists a showing on the face of the law that retroactive application is intended. Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla.1975); Keystone Water Company, Inc. v. Bevis, 278 So.2d 606 (Fla.1973). While such showing does not appear on the face of this statute, it is apparent from the history of this matter as related in our previous opinion, that this statute (as it pertains to this change in the law) is remedial in that it is designed to correct the error of the Department of Statutory Revision by which the law was changed to require that applications for motor vehicle dealer licenses be heard and ruled upon by the Department of Highway Safety and Motor Vehicles (the governor and cabinet) rather than the Director of the Division of Motor Vehicles. We called attention to the error not only in our previous opinion here but also in McCulley Ford, Inc. v. Calvin, 308 So.2d 189 (Fla. 1 DCA 1974), and in Lynch-Davidson Motors, Inc. v. Calvin, 308 So.2d 197 (Fla. 1 DCA 1974). As the Supreme Court stated in Collins Investment Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla.1964):

“The Legislature is presumed to be acquainted with judicial decisions on the subject concerning which it subsequently enacts a statute.”

In Heberle v. P.R.O. Liquidating Company, 186 So.2d 280 (Fla. 1 DCA 1966), this court pointed out that the general rule against retrospective operation of statutes has a well-known exception. There this Court quoted the Supreme Court’s statement of the exception in City of Lakeland v. Catinella, 129 So.2d 133 (Fla.1961), as follows:

“Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law, or the general rule against retrospective operation of statutes.” Cunningham v. State Plant Board of Florida, Fla.App.1959, 112 So.2d 905, certiorari denied Fla., 115 So.2d 701.

Chapter 77-357, in correcting the aforesaid statutory error, is remedial and falls within the above exception. The Director of the Division of Motor Vehicles has heard and determined the ease sub judice, and it is now on review before us. It would serve no useful purpose and would be an exercise of judicial folly for this Court, in the face of Chapter 77-357, to require this application to be heard and decided all over again by the same officer who heard and decided it the first time.

We have considered the briefs, oral argument and record in this cause and find there is competent, substantial evidence to support the order of the Director of Motor Vehicles. Our previous opinion is vacated and set aside.

Although we here vacate our previous opinion, we wish to correct a statement made therein with reference to Chapter 73-70, Laws of Florida (§ 11.2422) where we said:

“Ch. 73-70, Laws of Florida, enacted Florida Statutes (1973) effective ‘immediately upon publication’ and repealed every statute of a general and permanent nature enacted by the state or by the territory of Florida at or prior to the regular 1971 legislative session.”

The foregoing underlined statement was in error in that it did not include additional qualifying language of the statute which followed. Chapter 73-70, by its terms, repealed “every statute of a general and permanent nature enacted by the state or by the territory of Florida at or prior to the regular 1971 legislative session, and every part of such statute, not included in Florida Statutes, 1973 as adopted by § 11.2421, as amended, or recognized and continued in force by reference therein or in §§ 11.2423 and 11.2424, as amended.” (Emphasis supplied to show qualifying language.)

The petition for rehearing is granted. Our previous opinion in this cause is vacated, and the order of the Director of the Division of Motor Vehicles is affirmed.

MILLS and SMITH, JJ., concur.

      . § 20.24(1), Fla.Stat. (1975).


author: PER CURIAM.

text:
    DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. OOLITE ROCK COMPANY, a partnership, Appellee.
    No. 76-2079.
    District Court of Appeal of Florida, Third District.
    June 28, 1977.
    Rehearing Denied Aug. 26, 1977.

      Stuart L. Simon, County Atty., Murray A. Greenberg and R. A. Cuevas, Jr., Asst. County Attys., for appellant.
    Richard H. M. Swann, Hall & Hedrick and M. Lewis Hall, Jr., Miami, for appellee.
    Before HUBBART, J., and CHARLES CARROLL (Ret.) and LESTER, M. IGNATIUS, Associate Judges.
   PER CURIAM.

Dade County appeals from a judgment against it for an attorney’s fee for the appellee, a defendant in an eminent domain proceeding, contending the fee award was excessive. For the reasons stated herein we hold the appellant’s contention as to excessiveness of the fee allowance has merit. The order charging costs against Dade County, which also was challenged by the appellant, we hold was properly entered.

This matter previously was before this court on an appeal by the county from attorney’s fee awards which were made initially in favor of this appellee Oolite Rock Company and another defendant, John T. MacDonald Foundation. On that appeal this court held the fees then allowed were “substantially beyond the bounds of a reasonable discretion, and were clearly excessive” and remanded the cause “to permit the trial court to set quantum meruit attorney’s fee for the said defendants that are realistic and reasonable in amount based on proper guidelines applicable to and as reflected by the circumstances of this case”. See Dade County v. Oolite Rock Company, 311 So.2d 699 (Fla. 3d DCA, 1975).

Following a subsequent hearing, the trial court awarded an attorney’s fee of $29,000 to the appellee Oolite and entered judgment thereon against the county, and entered the separate order on costs. A settlement between the county and the MacDonald Foundation, as to attorney’s fee for the latter, obviated necessity for the court to make a fee award for that defendant.

The nature and circumstances of the eminent domain case, and the kind and character of the legal services performed by attorneys for Oolite prior to the voluntary dismissal of the proceeding by the county, are set forth in the opinion in Dade County v. Oolite Rock Company, supra (Oolite One, herein), to which reference is here made, and such matters will not be repeated here.

We affirm the charging of the costs against the county. There was no necessity for additional costs to be incurred in the proceeding subsequent to the mandate in Oolite One, since the trial court could have made a revised fee allowance without the need for any further discovery depositions or evidence. However, this court left the matter open for the trial court to proceed or permit the parties to proceed as the court should choose. Therefore, the costs incurred which were approved and allowed by the trial court, must be borne by the county as the condemnor, as required by law in such actions.

Regarding the fee allowance, we hold the fee award of $29,000 was excessive to such extent as to constitute an abuse of discretion, after giving due consideration to the guidelines and standards applicable to such awards, as bearing on this case. We base this holding on several grounds which apply to the situation presented by this case.

A basic factor which made the fee award excessive is that the work for which it was allowed was not of a kind or type of legal work for which a fee in such amount would be reasonable or justified. Here the fee awarded for 66 hours of legal work which was of low rather than of high cost type, amounted to an allowance of $439 per hour therefor. It is common knowledge that various types of legal work command differing scales of compensation. The work involved here consisted of time spent in conferences, making investigations and in taking and attending the taking of discovery depositions and the filing of an answer, preliminary to a pre-trial hearing on the question of the necessity of the county for the taking of the party’s land for a public park (which hearing was not held by reason of the prior voluntary dismissal of the proceeding by the county, the condemn- or). As stated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir., 1974); “It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it”. Taking a discovery deposition or attending a discovery deposition being taken by some other party usually is handled by a junior member of a firm. If a senior partner or head of a firm wishes to do such work himself, the fact that he does so does not raise its type level. For that and time conferring with his client or with others with reference to a case, it is self-evident that for a lawyer to charge his client a fee at a rate of $439 per hour would be grossly excessive. With reference to the required pleading, an answer simply announcing the defendant’s denial or challenge of the county’s necessity to take its property for park purposes would, as it did in this case, operate to place the burden on the condemnor, prior to trial, to prove such reasonable necessity. See Oolite One, footnote 2 (311 So.2d at 701). As pointed out in Oolite One, in view of the county’s voluntary dismissal of the action (which was without prejudice) prior to any such preliminary or pre-trial hearing, the effort of the appellee to claim that the above-referred to work of its attorney resulted in a “recovery”, is without basis. Insistence by appel-lee’s attorney that the voluntary dismissal without prejudice by the county prior to hearing on the merits is the equivalent in law of an adjudication in favor of the defendant on the merits, cannot make it so, when under the law it is not.

Oolite was entitled to award of a fee in an amount which would be reasonable to be paid by such a client to its attorney on a quantum meruit basis for the legal work which was involved, predicated on a rate of charge or fee scale for such work that is customary in the community. In Oolite One and in the earlier case of Manatee County v. Harbor Ventures, Inc., 305 So.2d 299, 301 (Fla. 2d DCA, 1975) this court and the Second District Court of Appeal stated that when a party is required and ordered to pay a reasonable sum as fee or compensation for the services of the attorney for an opposing party, the fee awarded should be such amount as could reasonably be expected would properly be charged by the lawyer to the client and paid by the client, if by law the latter rather than his adversary was required to pay the same.

While the reasonableness of a fee should not necessarily be determined by the amount it represents per hour for the work done, it is evident that work of the kind involved here, regardless of who performed it, could not reasonably demand compensation of $439 per hour. The fee allowed by the trial court was substantially greater than it is considered would customarily be charged to a client for the work involved. In this case, incident to the hearing on which the fee was allowed, a lawyer testifying for the fee claimant, of experience and legal standing comparable to the best, although testifying that his rate of charge was $150 per hour, recommended that Ool-ite’s attorney be paid by the county $35,000, which amounted to in excess of $500 per hour, for the work of the kind involved here.

The county, as appellant, argued that this court in Oolite One had made it the law of the case that a fee of $200 per hour was appropriate to be allowed. This court did not so rule, as the law of the case, although in Oolite One, in commenting on the testimony of a witness for the county who had said that a fee in that amount would be proper, this court stated that a fee in such amount would appear to have been reasonable and even generous for the services in this case (311 So.2d at 707, footnote 10).

Although it is repetitious, we again state and emphasize that in making awards of attorney fees which by contract or by law are required to be paid by one party for the services of the attorneys of an opposing party in a case, the award should not be for more than the rate or amount customarily charged and paid between attorney and client in the community for services of the kind that are involved. Tendency of a court to award substantially more, even when the payment is to be made out of public funds, which is not without example, is to be avoided. For a lawyer to charge a client or seek to obtain a court award of a fee substantially in excess of that which by custom in the community he could reasonably expect his client to pay, while not unethical, is 'unseemly. Cf. Canon 2 DR 2-106(A), Code of Professional Responsibility. The same applies to attorneys testifying in aid of the fee applicant. Brickell v. Di Pietro, 152 Fla. 429, 12 So.2d 782 (1943).

On appeal from an award of attorney’s fee, when the court determines the fee awarded is excessive so as to be beyond the bounds of reasonable discretion, the appellate court may reverse the award and remand the matter to the trial court for reconsideration and reassessment, as was done on the earlier appeal in this case, or may amend the judgment by reducing the fee award to an amount which the court shall determine to be not more than is reasonable and proper in the circumstances of the case. Here, for the reasons stated, the judgment awarding the attorney’s fee is amended by reducing the amount thereof from $29,000 to $14,000. The judgment as thus amended is affirmed. The order or judgment for costs is affirmed.

It is so ordered.

      . See Canon 2 of the Code of Professional Responsibility, DR 2-106(B); Oolite One (311 So.2d at 702); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).


author: GRIMES, Judge.

text:
    Grace Irene THOMAS, Appellant, v. J. R. BERRIOS, M.D., et al., Appellees.
    No. 76-1663.
    District Court of Appeal of Florida, Second District.
    June 29, 1977.
    Rehearing Denied Aug. 29, 1977.

      Charles P. Schropp, Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellant.
    David W. Young, Blake & Ford, P. A., Tampa, for appellee J. R. Berrios, M.D.
   GRIMES, Judge.

This case involves the extent to which expert testimony is necessary to prove the plaintiff’s case in a malpractice action.

Appellant had come to Lykes Memorial Hospital in Brooksville with complaints of heavy menstrual periods lasting for five to seven days which were often accompanied by pain sufficiently severe to require her to remain in bed for up to three days. The appellee, Dr. Berrios, who specialized in obstetrics and gynecology, was called in as a consultant. Dr. Berrios recommended performance of a dilation and curretage (D & C) to rule out cancer or polyps as the cause of appellant’s condition, to be followed by a hysterectomy if the results of the D & C were negative. The D & C was performed and proved negative. Dr. Berrios then performed a hysterectomy or surgical removal of the uterus.

Shortly following surgery, appellant began to suffer from an infection. It was finally determined that the cause of the infection was the presence of an opening or fistula in the left ureter which permitted urine to enter the body. Appellant was transferred to Tampa General Hospital where she underwent corrective surgery which consisted of attaching the damaged left ureter to the right ureter.

The appellant brought a malpractice action against Dr. Berrios. In his deposition, Dr. Berrios acknowledged that the appellant’s ureter must have been damaged during the operation. He felt that the most likely cause of the injury was an inadvertent contact with the ureter by a clamp or a suture, though he could point to no specific incident during the course of surgery which would indicate how or when such contact might have occurred. He maintained that he had committed no act of negligence and cited statistics from various medical publications to the effect that injuries occur in one-half percent to five percent of the cases in which hysterectomies are performed without any negligence on the part of the operating surgeon.

The deposition of Dr. Finney, who conducted the corrective surgery, was also taken. Dr. Finney testified that he had been unable to see the actual fistula in the left ureter because it was obscured by scar tissue which resulted from the appellant’s pri- or surgery. He stated that he could not say that the damage to the appellant’s ureter was occasioned by any negligence on the part of other surgeons. He corroborated Dr. Berrios’ statistics concerning the incidence of unavoidable injuries occurring during hysterectomies.

The appellant filed an affidavit in which she stated that Dr. Berrios did not advise her prior to her hysterectomy of any problems which might arise from the operation. Dr. Berrios had admitted as much when he testified that he had not advised appellant of complications which could occur from the surgery because she had a history of anxiety. He stated that it was the customary practice in the community not to tell a prospective hysterectomy patient that there was a statistical possibility that a ureter might be cut in the performance of the operation. The court entered a summary judgment in favor of the doctor, and the appellant has prosecuted this appeal.

The appellant’s case was primarily predicated upon (1) the failure to obtain an informed consent to the operation, and (2) negligence in the conduct of the surgery. The appellant submitted no expert testimony in support of either of these theories. Therefore, the main issues on this appeal are whether expert testimony is required in order to prove either the absence of informed consent or negligent medical treatment.

Absence of Informed Consent

In obtaining the consent to an operation or a course of treatment, a physician has an obligation to advise his patient of the material risks involved. Miriam Mascheck, Inc. v. Mausner, 264 So.2d 859 (Fla.3d DCA 1972); Bowers v. Talmage, 159 So.2d 888 (Fla.3d DCA 1964). The extent of the duty is aptly described in ZeBarth v. Swedish Hospital Medical Center, 81 Wash.2d 12, 499 P.2d 1 (1972), as follows:

“The duty of a medical doctor to inform his patient of the risks of harm reasonably to be expected from a proposed course of treatment does not place upon the physician a duty to elucidate upon all of the possible risks, ■ but only those of a serious nature. Nor does it contemplate that the patient or those in whose charge he may be are completely ignorant of medical matters. A patient is obliged to exercise the intelligence and act on the knowledge which an ordinary person would bring to the doctors’ office. The law does not contemplate that a doctor need conduct a short course in anatomy, medicine, surgery, and therapeutics nor that he do anything which in reasonable standards for practice of medicine in the community might be inimical to the patient’s best interests. The doctrine of informed consent does not require the doctor to risk frightening the patient out of a course of treatment which sound medical judgment dictates the patient should undertake, nor does the rule assume that the patient possesses less knowledge of medical matters than a person of ordinary understanding could reasonably be expected to have or by law should be charged with having. Nor should the rule declaring a duty to inform be so stated or applied that a physician, in the interest of protecting himself from an overburden of law suits and the attendant costs upon his time and purse, will always follow the most conservative therapy — which, while of doubtful benefit to the patient exposes the patient to no affirmative medical hazards and the doctor to no risks of litigation. Thus, the information required of the doctor by the general rule is that information which a reasonably prudent physician or medical specialist of that medical community should or would know to be essential to enable a patient of ordinary understanding to intelligently decide whether to incur the risk by accepting the proposed treatment or avoid that risk by foregoing it. A doctor or specialist who fails to discharge this duty to inform would thus be liable as for negligence to the patient for the harm proximately resulting from the treatment to which the patient submitted. ...”

The duty of the physician to inform and the extent of the information which may be required varies in each case depending upon the particular circumstances. Blye v. Rhodes, 216 Va. 645, 222 S.E.2d 783 (1976). The factors involved in making this determination are often complicated and technical, and in any event involve considerations beyond the expertise of the ordinary layman who is uneducated in medicine. Consequently, we have no hesitation in following the lead of our sister court in Ditlow v. Kaplan, 181 So.2d 226 (Fla.3d DCA 1966), by holding that expert testimony is required in informed consent cases to establish whether a reasonable medical practitioner in the community would make the pertinent disclosures under the same or similar circumstances. Our ruling accords with those of most courts which have considered this issue. Annot., 52 A.L.R.3d 1084 (1973).

Negligent Treatment

In an annotation at 81 A.L.R.2d 597 on the necessity of expert evidence in a malpractice action not involving informed consent, the annotator points out that the overwhelming weight of authority supports the view that expert witnesses are essential to the plaintiff’s case. Annot., 81 A.L.R.2d 597 at 601 (1962). The rule requiring expert testimony has often been applied where the negligence allegedly occurred during an operation. Id. at 631. However, the annotator goes on to point out that most courts recognize an exception to the rule in those cases in which a doctor’s want of skill or lack of care is such as to be within the comprehension of laymen and to require only common knowledge and experience to understand and judge it. An obvious example of the exception to the rule is where an injury occurs to an unrelated part of the body which is not under treatment. Id. at 645.

Florida has adopted the principle that expert testimony is not always required to prove a case of negligent treatment, as contrasted to a charge based on an incorrect diagnosis or the adoption of the wrong method of treatment. In Atkins v. Humes, 110 So.2d 663 (Fla.1959), our Supreme Court held that expert testimony was unnecessary to sustain a malpractice action predicated upon the negligent application of a cast which caused a pressure sore on the patient’s arm resulting in a disability known as Volkmann’s contracture and the negligent failure to relieve the pressure in the face of clear warnings of this condition. Reasoning that some instances of negligent treatment are so obvious as to render expert opinion unnecessary, the court said:

“. . . Jurors of ordinary intelligence, sense and judgment are, in many cases, capable of reaching a conclusion, without the aid of expert testimony, in a malpractice case involving a charge of negligence in the application or administration of an approved medical treatment.

The same principle was followed in Montgomery v. Stary, 84 So.2d 34 (Fla.1956), where a doctor applied a hot towel to a newborn baby’s arm for a prolonged period of time resulting in the loss of the infant’s fingers and thumb. Accord, Dohr v. Smith, 104 So.2d 29 (Fla.1958). In short, the effect of some medical treatment is so uncalled for that it doesn’t take a doctor to tell a reasonable man that this occurred because of negligence.

Does ureter damage which occurs during a hysterectomy fall in this category? We think not. While there are other types of surgery which are more complicated, no one can dispute the fact that the removal of the uterus from a woman’s abdomen is a significant surgical procedure. The record reflects that the ureter lies in close proximity to the uterus and that the ureter is not visualized during the course of the operation because it is covered in tissue. Dr. Berrios testified that in accordance with accepted procedure he identified the course and location of the ureter by feeling it with his glove covered fingers. He said he was confident that he never touched the ureter with an instrument or suture and that no clamp was placed closer than one centimeter away. Under these circumstances, to permit a jury without the benefit of expert opinion to conclude that the damage to the ureter occurred because of the doctor’s negligence would be to permit speculation on a subject well beyond the jury’s expertise.

In Modrzynski v. Lust, 55 Ohio L.Abs. 106, 88 N.E.2d 76 (Ohio App.1949), the court held that a trial judge had erred in denying a motion for directed verdict where the plaintiff failed to produce expert testimony that a fistula occurring in her bladder following a hysterectomy was the result of the doctor’s negligence. The court stated:

“By the great weight of authority, when the physician’s want of skill or lack of care in the treatment of a patient or in conducting a major operation is in question, expert medical testimony is necessary to establish the claimed negligence of the physician and that such negligence has some causal connection with the claimed injury. What is or is not standard practice and treatment in a particular case, or whether the conduct of the physician measures up to the standard is a question for experts and can be established only by their testimony.”

In another case involving a bladder fistula occurring during a hysterectomy, the court in Siverson v. Weber, 57 Cal.2d 834, 22 Cal.Rptr. 337, 372 P.2d 97 (1962), said:

“It is obvious that neither the cause of plaintiff’s fistula nor the question whether, in the light of past experience, it was probably the result of negligence by defendants is a matter of common knowledge among laymen. . . .”

In discussing the nature of a hysterectomy and the risks involved, the court in Dees v. Pace, 118 Cal.App.2d 284, 257 P.2d 756 (1953), said:

“An hysterectomy operation as disclosed by the medical testimony is a complicated one and it would lie beyond the realm of the common knowledge and experience of laymen as to whether or not this result would ordinarily occur in the absence of negligence. None of the doctors testified that in the small number of cases in which a fistula occurs that they are probably the result of negligence. On the contrary the undisputed expert testimony shows that a fistula is a recognized hazard in all hysterectomies, one of the calculated risks; and while it does not occur very often from any cause, it may occur where the operation is performed under ideal conditions by the most skillful surgeon without negligence on his part.”

The appellant relies heavily upon a passage in Atkins v. Humes, supra, in which the Supreme Court cited Goodwin v. Hertzberg, 91 U.S.App.D.C. 385, 201 F.2d 204 (1952), as an example of a case in which a jury had a right to conclude that negligence occurred without the benefit of expert testimony. This case involved the perforation of the patient’s urethra during an operation. We think that whatever significance the Supreme Court’s reference to Goodwin may have had has been nullified by that same court’s recent decision in Sims v. Helms, 345 So.2d 721 (Fla.1977) (Opinion filed March 31, 1977). While Sims specifically dealt with a need for expert testimony in a case involving a doctor’s choice of methods and procedure rather than the negligent administration of approved medical treatment, the court cited with approval several hysterectomy cases standing for principles precisely in accord with our view in the instant case. Among these were Riedisser v. Neison, 111 Ariz. 542, 534 P.2d 1052 (1975); Halligan v. Cotton, 193 Neb. 331, 227 N.W.2d 10 (1975); and Shoberg v. Kelly, 1 Wash.App. 673, 463 P.2d 280 (1970). In Halligan, the court distinguished Goodwin v. Hertzberg, supra, on the ground that the doctor in that case had made factual admissions which could reasonably be interpreted as admitting a lack of skill and care. In the Riedisser case, summary judgment was entered for the doctor in the face of a record which supported the view that the ureter had been “nicked” during surgery.

The appellant cannot point to any evidence that Dr. Berrios failed to meet the appropriate standard of care in his performance of the hysterectomy other than the fact that an injury apparently occurred as a result of the surgery. As recently noted by the Supreme Court in Sims v. Helms, supra:

. . Negligence cannot be inferred from the fact that the surgery was unsuccessful or terminated in unfortunate results. . . . ”

Therefore, we hold that the appellant was obligated to furnish expert testimony in support of her claim of negligent surgery.

Propriety of Summary Judgment

For her final point on appeal, the appellant argues that even if expert testimony is held to be necessary to support her case upon both of the theories previously discussed, the granting of summary judgment was improper under the rationale of Holl v. Talcott, 191 So.2d 40 (Fla.1966). In Holl, the Supreme Court emphasized the requirement of the moving party to prove the nonexistence of genuine issues of material fact before he becomes entitled to summary judgment. The summary judgment entered below does not conflict with Holl, because the facts in Holl were different and its principle has been preserved.

One of the movants’ deficiencies in Holl was that their medical affidavits did not undertake to explain what had caused the plaintiffs comatose condition. While the medical evidence in this case did not explain what caused the damage to the appellant’s ureter, the depositions did demonstrate that the cause could not be determined because of the scar tissue which obscured the site of the first operation. The Holl opinion on rehearing recognized that a doctor could obtain a summary judgment in a malpractice action by showing conclusively that the plaintiff is unable to present the requisite proof of the negligence charged in the pleadings. Moreover, in Holl the plaintiff did present the affidavit of a doctor in support of her charges.

We note further that both the Rledisser and Shoberg cases cited by the Supreme Court in Sims v. Helms, supra, involved summary judgments which were affirmed on the basis that the plaintiff had failed to come forward with medical testimony in support of the complaint.

In this case, Dr. Berrios filed his motion for summary judgment on July 10, 1975. The motion was set down for hearing on September 10, 1975. The appellant filed a motion for continuance for the purpose of obtaining additional time to prepare affidavits in opposition to the motion. The hearing was postponed and the motion was finally heard some nine months later in May of 1976. The only affidavit which had been filed by the time of the hearing was that of the appellant referred to earlier in this opinion. Had the appellant been able to find expert testimony in support of her position, she had ample time within which to present it to the court. Having failed to do so, she cannot now complain that summary judgment was entered against her.

AFFIRMED.

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


author: HOBSON, Acting Chief Judge.

text:
    GEORGE HUNT, INC., a Florida Corporation, Appellant, v. WASH-BOWL, INC., a Florida Corporation, Appellee.
    No. 76-1521.
    District Court of Appeal of Florida, Second District.
    July 8, 1977.
    Rehearing Denied Sept. 1, 1977.

      Daniel N. Martin, Delzer, Edwards, Martin, Coulter & Parker, Port Richey, for appellant.
    James L. Yacavone, III, Fowler, White, Gillen, Boggs, Villareal & Banker, Clear-water, for appellee.
   HOBSON, Acting Chief Judge.

In this breach of contract action the plaintiff/appellant attacks the final judgment below denying it monies owed pursuant to a construction contract. The plaintiff specifically contends the verdict in favor of the defendant was a product of an erroneous jury instruction on the defense of fraud in the inducement. We reverse, but for different reasons.

This controversy involves an alleged cost-plus contract entered into between the parties hereto, the contract being for the construction by plaintiff of a laundry facility in Pasco County, Florida. The plaintiff constructed the building and subsequently sought payment for its efforts. The defendant refused payment and the plaintiff commenced this action.

The complaint filed by the plaintiff reflected the facts as briefly stated above asserting the cost-plus agreement, full performance, and entitlement to $23,621.28, which plaintiff posits is the amount owed. The complaint was framed entirely on breach of express contract. No request is contained therein for the value of services and materials or quantum meruit.

The defendant filed its answer admitting the genuineness of the written contract attached to the complaint, but denied the remaining allegations as to the terms of the contract, performance, and the right to payment. In addition, the defendant interposed certain affirmative defenses alleging that plaintiff had represented to the defendant, prior to the execution of the disputed document, that plaintiff would construct the facility at a cost commensurate with the cost charged for two previously constructed projects. Defendant further alleged it had relied on representations of the plaintiff relating to the projected cost of the project. The essence of this affirmative defense was to set forth the specific defense of misrepresentation or fraud in the inducement of the contract. Moreover, other affirmative defenses alleged that the parties orally agreed that the plaintiff would secure the best available prices for all materials and labor, that plaintiff breached such agreement by failing to do so, and that such failure was done either negligently or intentionally in wilful and wanton disregard of the obligations owed to the defendant, resulting in damage to it.

At the conclusion of testimony the defendant presented to the court, inter alia, a requested jury instruction pertaining to the issue of fraud, and the measure of damages if the jury were to find that appellant had committed fraud. The plaintiff questioned the instruction on fraud in that the measure of damages would not be a verdict in favor of the defendant, but a reduction of the amount due so as not to allow the plaintiff to profit from its own wrongdoing.

The trial court accepted the defendant’s instruction which was given as follows:

“In order for the Defendant to prove fraud in the inducement, the Defendant must show by the greater weight of the evidence that: One, Plaintiff made a false statement concerning a specific material fact; two, the Plaintiff’s knowledge that the representation is false; three, an intention that the representation induced another to act on it; and, four, consequent injury by the other party acting in reliance on the representation.” /

The jury was also instructed as to other factors relating to the costs allocable in a cost-plus contract. Furthermore, the jury was given the option of returning a verdict for the plaintiff, with a space designated for an amount to be paid or, conversely, for the defendant, with no allowance for any monies to be paid to the plaintiff in that event. The jury found for the defendant.

Although the plaintiff frames the issue in this case in terms of the alleged invalid instruction on fraud, insofar as it denies any damages where the defendant prevails in its defense, we are inclined to reverse this case for another reason. In the first place we find no error with the form of the instruction on fraud in the inducement since it sets forth all elements which must be met to support a finding of fraud. However, we are troubled with the subsequent finding of fraud in that the record and briefs before this court show no consequent injury accruing to the defendant as a result of the alleged misrepresentation. In fact, we are hard pressed to see how the defendant has changed its position at all in reliance on the representations of the plaintiff since the defendant has paid nothing on the contract and incurred no expense as a result of it.

It is recognized, in Florida and other jurisdictions where fraud is asserted as a defense to a contract, that all essential elements of the fraudulent conduct, including some injury, must be met. 14 Fla.Jur., Fraud and Deceit §§ 41, 72 (1957); 37 Am. Jur.2d, Fraud and Deceit § 291 (1968); An~ not., 91 A.L.R.2d 346 (1963). Cf. Hanley v. Bullard, 80 Fla. 578, 86 So. 439 (1920); Casey v. Welch, 50 So.2d 124 (Fla.1951). As stated in the early case of Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408, 410 (1930),

“It is of the very essence of an action of fraud and deceit that the same shall be accompanied by damage, and neither damnum absque injuria nor injuria abs-que damnum by themselves constitute a good cause of action. .
“This principle is so generally understood and universally recognized that citation of authority is a work of supererogation.”

This rule then is applicable whether the pleadings alleging fraud are defensive or offensive in nature and is not dependent on the stage of performance of the contract at the time suit is instituted.

Florida decisions defining injury go in both directions in explaining what constitutes damage sufficient to warrant actionable fraud defensively and offensively. Early cases reflect a requirement that the injury sustained must ordinarily be pecuniary in nature. See e. g., Pryor v. Oak Ridge Dev. Corp., 97 Fla. 1085, 119 So. 326 (1928). Other Florida decisions seem to align themselves with the general rule enunciated in 37 Am.Jur.2d, Fraud and Deceit § 292 (1968), “[DJamage need not be subject to accurate measurement in money, but may result from the fact that the defrauded party has been induced to incur legal liabilities or obligations different from those represented or contracted for . . Cf. Ft. Myers Dev. Corp. v. J. W. McWilliams Co., 97 Fla. 788, 122 So. 264 (1929).

Thus, the injury sustained must cause a party to suffer some loss, be it pecuniary or otherwise. However, this showing of injury, arising out of misrepresentation or concealment, need not amount to actionable fraud to justify its use as an element in an affirmative defense to a contract action. Busch v. Baker, 79 Fla. 113, 83 So. 704 (1920). All that is required is that the defensive pleading setting forth the essential elements show injury or damage. 14 FlaJr., Fraud and Deceit § 72 (1957).

Turning to the case sub judice, we are unable to see in either the defendant’s answer or its proof any evidence of present actual injury which has resulted from the plaintiff’s alleged misrepresentations. Defendant contends the evidence of overcharging, double-billing, and charging for items not provided overwhelmingly shows injury. We disagree. As correctly asserted by the plaintiff, the defendant has not paid any portion of the monies owed on the contract. It is difficult, without speculation as to future injury possibly caused by these misrepresentations, to see how, if at all, the defendant has been injured in reliance on the promises of the plaintiff. In fact, the defendant is essentially in the same position it was prior to the plaintiff’s unilateral performance. Therefore, using the general rules stated above as to what constitutes damage or injury, we find the defendant has incurred no significant change in position sufficient to find injury which would make its defense of fraud operative as a bar to the plaintiff’s breach of contract action. Absent competent and substantial evidence in the record on appeal as to one of the essential elements of fraud, the judgment for the defendant must be reversed. 14 Fla.Jur., Fraud and Deceit § 89 (1957). Cf. Casey v. Welch, supra.

There being no fraud in the inducement of this contract, on remand a new trial is ordered for purposes of assessing damages arising out of the defendant’s breach of the contract. At this new trial on damages the defendant should be permitted to present, in mitigation of damages, evidence of alleged overcharging, doublebilling, charging for items not provided, etc. Accordingly, the final judgment below is reversed and the cause remanded consistent with views expressed herein.

OTT, J., concurs.

McNULTY, J., concurs in conclusion only.

      . Cases on the necessity of showing damage to establish fraud as a defense to an action on contract are collected in Annot., 91 A.L.R.2d 346 (1963). Florida cases collected in this annotation are categorized as falling within the ambit of the general rule requiring a showing of damage to establish a defense of fraud. Allen v. United Zinc Co., 64 Fla. 171, 60 So. 182 (1912); Hanley v. Bullard, 80 Fla. 578, 86 So. 439 (1920). However, these cases are labeled as containing no reference to whether damage must be shown in both pleading and proof, pleading alone, or proof without pleading. In light of the general principles stated above, namely, that a showing of injury need not be such that it amounts to actionable fraud, we submit that a pleading setting forth a clear injury, caused by the alleged misrepresentation or concealment, would be sufficient, without proof of damages, to state a defense of fraud, assuming the existence of the other elements.


author: MILLS, Judge.

text:
    WIGGS AND MAALE CONSTRUCTION COMPANY, Appellant, v. John D. HARRIS, etc., et al., Appellees. BLACKSTONE DEVELOPERS, a partnership, Appellant, v. John D. HARRIS, etc., et al., Appellees. ED WATERS AND SONS CONTRACTING COMPANY, INC., Appellant, v. BLACKSTONE DEVELOPERS, a partnership, etc., et al., Appellees.
    Nos. Z-21, Z-63 and Z-116.
    District Court of Appeal of Florida, First District.
    July 15, 1977.
    Rehearing Denied Sept. 2, 1977.
    John E. Houser, John I. Todd, Jr., J. Edwin Gay, Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellants.
    J. Edwin Gay, Rogers, Towers, Bailey, Jones & Gay, and John I. Todd, Steven A. Werber, John E. Houser, Jacksonville, for appellees.
   MILLS, Judge.

Blackstone Developers (Blackstone) and Wiggs and Maale Construction Company (Wiggs), defendants below, appeal from a final judgment entered in favor of Harris, Mixon and Penland, plaintiffs below, following a jury trial in a negligence action for damage to a building. In addition, Wiggs, cross-defendant below, appeals from a final judgment entered in favor of Blackstone, cross-plaintiff below, following a directed verdict in an: indemnification action and Wiggs, cross-plaintiff and cross-defendant below, appeals from a final judgment entered in favor of Ed Waters and Sons Contracting Company, Inc. (Waters), cross-defendant and cross-plaintiff below, following a jury trial in indemnification actions Wiggs and Waters brought against each other. Although Waters appealed, it abandoned its appeal. The appeals have been consolidated for our consideration.

Blackstone owned property adjacent to and south of the Law Exchange Building. Blackstone wished to construct a building on its property. Wiggs was the general contractor on the project. Wiggs contracted with Waters to install sheet pile along the northern property line. The sheet pile was installed on 4 May 1972, and on 17 May the south wall of the Law Exchange Building settled causing it to crack. The owner of the Law Exchange Building instituted this suit against Blackstone, Wiggs and Waters. Various cross claims were filed by the defendants.

At the trial, testimony was presented that the damage to the Law Exchange Building was caused by sand under the building being compacted by the pile driving operations. The verdict forms permitted the jury to find for the plaintiffs either against Blackstone, Wiggs and Waters, or to find for the plaintiffs against only Blackstone and Wiggs. The closing arguments of counsel and the instructions of the court made it clear that the jury should not return a verdict against all three unless the jury found that the pile driving was performed in a negligent manner. The jury returned a verdict against all three defendants, thus finding Waters negligent in performing pile driving.

The court directed a verdict in favor of Blackstone against Wiggs and Waters and the case was then submitted to the jury on Wiggs’ cross claim against Waters and Waters’ cross claim against Wiggs. Wiggs cross claimed against Waters on the basis of an indemnity agreement in their written contract and on the active-passive tort-feasor theory. Waters’ cross claim for indemnity was based solely on the active-passive tortfeasor theory. Based on University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973), the court instructed the jury that if it should find that Wiggs was guilty of negligence which was a legal cause of damage, the indemnity agreement would not apply. Although Wiggs objected to this instruction at the charge conference, the giving of the instruction was not assigned as error and, therefore, whether the instruction was correct is not presented by this appeal.

The jury returned a verdict against Wiggs on its cross claim against Waters, and returned a verdict in favor of Waters on its cross claim against Wiggs. By these verdicts, the jury found that Wiggs was actively negligent and that Waters was either not negligent or passively negligent. In other words, the jury returned conflicting verdicts. To reach its first verdict, holding all three defendants liable to the plaintiffs, it had to find that Waters was actively negligent; in reaching its second verdict in favor of Waters on its cross claim, it had to find that Waters was not actively negligent.

Wiggs contends that it was error to resubmit the question of Waters’ negligence to the jury the second time, since Waters’ negligence had been determined by the first verdict. However, Wiggs made no objection to the submission of Waters’ cross claim to the jury. No objection was made to the forms of the verdict, and when the verdict in favor of Waters on its cross claim against Wiggs was read, no objection was raised as to its inconsistency with the first verdict. Further, after the first verdict was returned, Wiggs did not move for a directed verdict on Waters’ cross claim. Clearly, Wiggs had many opportunities to bring to the court’s attention the possibility that inconsistent verdicts might be rendered. It did not do so. Even after the second verdict was rendered, Wiggs remained silent. Therefore, any error relating to the receipt of the inconsistent verdicts has not been preserved for purposes of appeal and the judgment in favor of Waters is affirmed. Lindquist v. Covert, 279 So.2d 44 (Fla. 4th DCA 1973); Crawford v. DiMicco, 216 So.2d 769 (Fla. 4th DCA 1968).

The appeal taken by Blackstone and Wiggs against the plaintiffs is without merit and the judgment is affirmed. The appeal taken by Waters is dismissed.

McCORD, C. J., and MELVIN, WOODROW M., Associate Judge, concur.


text:
    Ignacio MENDOZA, Appellant, v. METROPOLITAN DADE COUNTY et al., Appellees.
    No. 76-1469.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Aug. 24, 1977.
    William Huggett, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Gregor M. Gaebe, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed upon authority of the rule stated in Hettenbaugh v. Keyes-Ozon-Fincher Insurance, Inc., 147 So.2d 328 (Fla. 3d DCA 1962).


author: SCHEB, Judge.

text:
    The BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, Florida, and Frank Wanicka, Sheriff of Lee County, Florida, Appellants, v. Robert DEXTERHOUSE and Andy Martin, Appellees.
    No. 76-1442.
    District Court of Appeal of Florida, Second District.
    July 20, 1977.
    Rehearing Denied Sept. 1, 1977.

      Julian Clarkson, James T. Humphrey, County Atty., and Kenneth A. Jones, Asst. County Atty., Fort Myers, for appellants.
    Wilbur C. Smith, III, of Smith, Carta & Snow, Fort Myers, for appellee Andy Martin.
   SCHEB, Judge.

Appellant Lee County enacted an ordinance making it unlawful for those who sell alcoholic beverages for consumption on the premises to permit females to expose their breasts on the premises. Appellees, who operate affected businesses in the unincorporated areas of the county, challenged the ordinance as being unconstitutional. The trial court held those portions which had the effect of proscribing topless dancing were overbroad and in violation of first amendment rights, and enjoined enforcement by the county and its sheriff. We hold the ordinance is a valid exercise of the police power by the Board of County Commissioners of Lee County. We reverse.

Appellees began featuring “topless dancing” at their establishments, whereupon the County Commissioners enacted the challenged Ordinance No. 75-9, the relevant portions of which provide as follows:

SECTION 2. PROHIBITION
2.1 It shall be unlawful for any person maintaining, owning or operating a commercial establishment located within the unincorporated areas of Lee County, Florida, at which alcoholic beverages are offered for sale for consumption on the premises:
A. To suffer or permit any female person while on the premises of said commercial establishment, to expose to the public view that area of the human female breast at or below the areola thereof. .
2.1(sic) It shall be unlawful for any female person, while on the premises of a commercial establishment located within the unincorporated areas of Lee County, Florida, at which alcoholic beverages are offered for sale for consumption on the premises, to expose to public view that area of the human female breast at or below the areola thereof. .

Arguing they would sustain irreparable injury through criminal prosecution and loss of business, appellees filed for a declaratory judgment contending said ordinance was unconstitutional. Appellees asked the court to enjoin the county and its sheriff from enforcing its provisions against them. In holding the above-quoted sections of the ordinance void, the trial judge stated:

The case of Salem Inn, Inc. v. Frank, 522 F.2d 1045 (1975), however, is in point. There, the Federal Circuit Court of Appeals, Second Circuit, struck down a town ordinance nearly identical to the Ordinance in question on the ground that the ordinance was invalid for overbreadth under the First Amendment to the Constitution of the United States. Without comment on whether this Court agrees or disagrees with the decision in the Salem Inn case, this court feels, nevertheless, bound to follow the Federal decision on a point of Federal law.

At the outset we observe that the Salem case was not binding on the trial court. The only federal decisions binding upon the courts of our state are those of the United States Supreme Court. State v. Dwyer, 332 So.2d 333 (Fla.1976).

This appeal presents two basic issues. First, whether Ordinance No. 75-9 is a valid exercise of the county’s police power rather than a violation of the freedom of speech and expression guaranteed by the first amendment to the United States Constitution, Second, is the ordinance in conflict with Chapters 561 and 562, Florida Statutes (1975), which place the regulation of alcoholic beverages exclusively within the control of the Division of Beverage of the Department of Business Regulation?

Lee County, a non-charter county, is authorized to enact ordinances effective in its unincorporated areas, provided such ordinances are not inconsistent with general or special laws. Article VIII, Section 1(f), Florida Constitution. In enacting Ordinance No. 75-9, the County Commission of Lee County recited in one of the preambles of the ordinance that there was a direct relationship between “. . . concurrent consumption of alcoholic beverages and the nude and semi-nude activities [of females] . . . and an increase in criminal activities, moral degradation, and disturbance of the peace and good order of the community.” On this premise the county’s elected commissioners, relying on the county’s police power, sought to prohibit the above-outlined activities, as well as other activities described in other portions of the ordinance not invalidated by the trial court.

Police power regulations which bear a substantial relation to the public health, peace, safety, morals, or welfare should be upheld where the ordinance is within the ambit of the legislative authority of the local government. Courts recognize the propriety in allowing people, through their elected officials, to exercise police power authority. City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957).

The County Commissioners concluded there was a necessity for the ordinance. It is not our function to review the wisdom of their action. Rather, we should only determine if this ordinance is within the scope of their constitutional and statutory authority and demonstrates a rational exercise of their police power designed to correct conditions adversely affecting the public.

We reject the contentions that the ordinance is overbroad and violative of the constitutional guarantees of free speech and expression. First amendment protection is applicable only where a “communication element” is present. United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In Hoffman v. Carson, 250 So.2d 891 (Fla.1971), our supreme court quoted with approval from City of Portland v. Derrington, 253 Or. 289, 451 P.2d 111, cert. denied, 396 U.S. 901, 90 S.Ct. 212, 24 L.Ed.2d 177 (1969). There the Supreme Court of Oregon declared:

When nudity is employed as sales promotion in bars and restaurants, nudity is conduct. As conduct, the nudity of employees is a fit subject for governmental regulation as is the licensing of the liquor dispensaries and the fixing of their closing hours. 451 P.2d at 113.

We agree. Adult females who choose to display their breasts in public to patrons in a bar, or who are required to do so by their employer, are engaged in conduct incident to a commercial endeavor. They are not expressing their right of free speech or expression.

In California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the United States Supreme Court considered state regulations which prohibited certain sexually explicit conduct, including “topless” and “bottomless” dancing, in licensed bars and nightclubs. The Court rejected the argument that these regulations were forbidden by the first amendment. Moreover, the Court did not find “irrational” the State Beverage Department’s conclusion “that the sale of liquor by the drink and lewd or naked dancing and entertainment should not take place in bars and cocktail lounges for which it has licensing responsibility.” 409 U.S. at 118, 93 S.Ct. at 397.

But even if there is no constitutional prohibition against police power regulation of the conduct proscribed by the ordinance, has the State of Florida preempted the right to regulate in this field?

Appellees correctly point out that the regulation and operation of establishments selling alcoholic beverages is by statute vested in the Division of Beverage which is granted full power or authority to adopt regulations to carry out the beverage laws of this state. Sections 561.02 and 561.11, Florida Statutes (1975). Local control over establishments selling alcoholic beverages is limited to: (1) hours of operation; (2) location of business; and (3) sanitary regulations. Section 562.45(2), Florida Statutes (1975).

We recognize the limited areas within which local government can legislate; however, there is a distinct difference between enactments which govern conduct of individuals while on the premises of their establishments, as opposed to the regulation of the licensees themselves in the sale and dispensing of alcoholic beverages. Illustrative of the distinctions are two decisions of the Supreme Court of Florida. In State ex rel. Anthony Distributors, Inc. v. Pickett, 59 So.2d 856 (Fla.1952), it was held an ordinance which authorized the City of Sarasota to investigate the character of licensees and to decline licenses to those it determined to be unfit was in direct contravention of the Beverage Act, Chapters 561 and 562, Florida Statutes (1951).

On the other hand, during an era when local governments were permitted to exercise their police power in a more protective manner in respect to women, the City of Miami passed an ordinance prohibiting barmaids from selling intoxicating liquors by the drink over the bar. In Nelson v. State ex rel. Gross, 157 Fla. 412, 26 So.2d 60 (Fla.1946), the court found that ordinance was not in conflict with the provisions of the Beverage Act, noting that the state plan of regulation did not cover that area. Similarly, in City of Miami v. Jiminez, 130 So.2d 109 (Fla.3d DCA 1961), the Third District Court of Appeal upheld a City of Miami ordinance prohibiting female employees in drinking establishments from accepting drinks paid for by customers. When Pickett, Nelson and Jiminez were decided, the Beverage Act, just as it does now, limited local authorities to regulating hours of operation, location, and sanitary requirements for liquor establishments.

As in Nelson, the statutory scheme of state regulations does not embrace the area of conduct covered by the Lee County ordinance. We conclude that the ordinance now before us is one directed at the discipline and good order of persons while in establishments selling alcoholic beverages, and does not in ■ any manner ■ interfere or conflict with the state’s regulation of the sale of such beverages.

In sum, we have determined the assailed provisions of Ordinance No. 75-9 have a rational basis and represent a valid exercise of Lee County’s police power. Further, the acts proscribed by the ordinance represent conduct rather than speech or expression, and as such there is no contravention of the constitutional guarantees of free speech and expression. Finally, we have concluded that the provisions of the ordinance are not in conflict with the Beverage Act.

REVERSED.

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

      . The portions of the ordinance not invalidated by the trial court are as follows:
      SECTION 2. PROHIBITION
      2.1 It shall be unlawful . . .
      (A) . . .
      (B) To suffer or permit any female person, whife on. the. premises . of.. said, commercial establishment, to employ any device or covering which is intended to give the appearance of or simulate such portions of the human female breast as described in Section 3.1(A).
      (C) To suffer or permit any person, while on the premises of said commercial establishment, to expose to public view his or her genitals, pubic area, buttocks, anus, or anal cleft or cleavage.
      2.2 .. .
      2.3 It shall be unlawful for any person, while on the premises of a commercial establishment located within the unincorporated areas of Lee County, Florida, at which alcoholic beverages are offered for sale for consumption on the premises, to expose to public view his or her genitals, pubic area, buttocks, anus, or anal cleft or cleavage, or to employ any device or covering which is intended to give the appearance of or simulate the genitals, pubic area, buttocks, anus or anal cleft or cleavage.

      . We do not mean to imply that nudity can never be expression protected by the first amendment, only that it is not under the circumstances of this case. In the format of a legitimate stage production for example, we might very well find nudity to be expression. See generally, California v. La Rue, 409 U.S. 109, 114, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972).


text:
    CABINET CRAFT, INC., Appellant, v. A. G. SPANOS ENTERPRISES, INC., Appellee.
    No. 76-1994.
    District Court of Appeal of Florida, Second District.
    July 22, 1977.
    Rehearing Denied Aug. 29, 1977.

      Peter N. Meros, Meros, Coit, Wells, Ed-man & Meros, P. A., St. Petersburg, for appellant.
    Ray J. Peacock, Goza, Hall, Peacock & Peters, P. A., Clearwater, for appellee.
   GRIMES, Judge.

This is an appeal from a summary judgment dismissing a suit on grounds of res judicata and collateral estoppel.

Appellee (Spanos) entered into two contracts with appellant (Cabinet Craft) whereby Cabinet Craft would supply labor and materials for the installation of cabinets in two projects being built by Spanos. The projects were partially completed when the parties became involved in a dispute. Thereafter, Spanos sued Cabinet Craft for breach of contract for failure to furnish and install all the cabinets and claimed damages for delay in the completion of the projects.

Cabinet Craft filed a counterclaim asserting that it was really Spanos which had breached the contracts. Cabinet Craft alleged that during the course of construction Spanos announced that the projects were going to be closed down for three months. Cabinet Craft then notified Spanos that performance could not be stopped under the contract because' this would put Cabinet Craft out of business. Spanos then advised Cabinet Craft that it would continue to perform under the contract only if Cabinet Craft would agree to substantially reduce the number of cabinets to be installed. Cabinet Craft stated that it declined to agree to this modification and was forced to withdraw from the job. According to Cabinet Craft the loss of these contracts forced it out of business. Cabinet Craft claimed loss of future profits under the contracts as well as payment for materials previously furnished before the contracts were terminated.

Prior to trial, Cabinet Craft’s answer and counterclaim were dismissed pursuant to Section 607.357(6), Florida Statutes (1976), because Cabinet Craft, Inc. had been dissolved for failure to file its annual reports with the State of Florida and to pay its annual stock taxes. Spanos’ cause of action was then tried before the court without a jury. The court found that the parties had mutually agreed to terminate the contracts and entered a final judgment against the claims of Spanos. Cabinet Craft subsequently obtained the reinstatement of its corporate status and moved for rehearing of the order which had stricken its pleadings. In its order denying the motion for rehearing the court stated that Cabinet Craft’s pleadings had been stricken to avoid penalizing Spanos by delaying the trial because of Cabinet Craft’s noncompliance with the Florida Corporation Law. The court pointed out that Cabinet Craft had been put on notice by Spanos’ pleadings which denied that Cabinet Craft was qualified to do business in the state. Cf. Marinelli v. Weaver, 208 So.2d 489 (Fla.2d DCA 1968). No appeal was taken in the case by either party.

Thereafter, Cabinet Craft filed a new action against Spanos. The allegations of the complaint were essentially the same as those of the counterclaim in the previous suit. Spanos obtained a summary judgment on the premise that since the previous suit involved the same issues, Cabinet Craft’s claims were barred by res judicata and estoppel by judgment.

In Donahue v. Davis, 68 So.2d 163 (Fla.1953), our Supreme Court said:

“The rule is well settled that in order to make a matter res judicata four conditions must concur, namely: (1) Identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action, and (4) identity of the quality in the person for or against whom the claim is made. . . . ”

Each of these four conditions existed in the instant case. However, as a general rule, a judgment entered upon any grounds which do not involve the merits of the action may not be used as the basis for the application of res judicata. Kent v. Sutker, 40 So.2d 145 (Fla.1949). Thus, the court in Kent said:

. . . Under this rule, an adjudication on grounds purely technical, where the merits cannot come into question, is limited to the point actually decided, and does not preclude the maintenance of a subsequent action brought in a way to avoid the objection which proved fatal in the first action. . . . ”

The answer to the question of whether a previous action has been adjudicated upon the merits for purposes of res judicata is not always as easy as it may first appear. For example, the dismissal of an action for failure to comply with a court order to pay money into the registry of the court was held to be an adjudication on the merits which barred the institution of a subsequent suit on the same cause of action. Hinchee v. Fisher, 93 So.2d 351 (Fla.1957). On the other hand, a dismissal of a suit for failure to prosecute under Fla.R.Civ.P. 1.420(e) does not preclude the refiling of an identical suit. Gibbs v. Trudeau, 283 So.2d 889 (Fla. 1st DCA 1973).

The dismissal of a corporation’s claim because of the failure to maintain its legal corporate status appears analogous to the dismissal of a claim for lack of prosecution. Certainly there has been no adjudication of the substance of the claim. Furthermore, the language of Section 607.-357(6) which provides that a corporation shall not maintain or defend any action “until” its annual report has been filed and the taxes paid seems to contemplate the possibility of curative action. Moreover, the dismissal would not have come about for failure to comply with a court order. Cf. Rashard v. Cappiali, 171 So.2d 581 (Fla.3d DCA 1965). Therefore, where a plaintiff corporation’s suit is dismissed prior to trial for failure to comply with the statute, we do not believe that this constitutes an adjudication upon the merits which would preclude the refiling of a new suit on the same cause of action against the same party.

Nevertheless, we have difficulty in applying this principle to the instant case. When Cabinet Craft’s pleadings were stricken the case was in a default posture. Yet, the court still had jurisdiction over Cabinet Craft, and for purposes of res judi-cata, a judgment entered upon default is just as conclusive as one which was hotly contested. Hay v. Salisbury, 92 Fla. 446, 109 So. 617 (1926). When the case went to trial on the claims of Spanos and the court ruled that the contract had been terminated by mutual agreement, this constituted an adjudication on the merits. Therefore, since Cabinet Craft’s counterclaim was by its nature a compulsory counterclaim, once a judgment on the merits of the subject matter of the action was entered, Cabinet Craft could not file a new suit on the same cause of action. State v. Boyer, 145 So.2d 547 (Fla.lst DCA 1962); Pesce v. Linaido, 123 So.2d 747 (Fla.3d DCA 1960); see also Hay v. Salisbury, supra, in which the plaintiff in an action to specifically enforce an agreement to sell real estate was deemed barred by res judicata because she had previously suffered a default judgment in a suit brought against her by the landowners to quiet the title against her claims.

In view of our disposition of this appeal, it is unnecessary to analyze the applicability of the doctrine of estoppel by judgment.

AFFIRMED.

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

      . We need not be concerned whether the court erred in striking Cabinet Craft’s pleadings rather than staying the case for a reasonable time to permit a reinstatement of the corporate status, because Cabinet Craft did not appeal.

      . Had Cabinet Craft’s counterclaim not been compulsory, there would have been no adjudication upon the merits and a new suit could have been filed in the same manner as a corporate plaintiff whose prior action has been dismissed prior to trial for failure to comply with Section 607.357(6).