author: PER CURIAM.

text:
    E. J. FRANKEL et al., d/b/a Roney Plaza Apartments, Petitioners, v. CITY OF MIAMI BEACH, Respondent.
    No. 45932.
    Supreme Court of Florida.
    Sept. 23, 1976.
    Rehearing Denied Jan. 10, 1977.

      Irving B. Levenson of Sibley, Giblin, Le-venson & Ward, Miami Beach, for petitioners.
    Joseph A. Wanick, City.Atty., and Lee H. Schillinger, Chief Asst. City Atty., for respondent.
   PER CURIAM.

We have before us a petition for a writ of certiorari which alleges that the decision of the District Court of Appeal, Third District, in Frankel v. City of Miami Beach, 296 So.2d 605 (Fla.App.3d 1974) conflicts with this Court’s decision in Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (1942). We have jurisdiction pursuant to Article V, § 3(b)(3), Fla.Const.

The pertinent facts are as follows.

Petitioners, owners and operators of the Roney Plaza Apartments in Miami Beach, brought suit as a class action on behalf of themselves and all other consumers of water in Miami Beach, for a declaratory decree (judgment) against the City of Miami Beach as to the effective date of an ordinance increasing the water rate. Ordinance No. 1936 was passed and adopted by the City of Miami Beach on September 25, 1972, increasing the water rate charged all consumers by eight cents per thousand gallons on all billings effective October 1,1972. This actually increased the rate at some time prior to October 1, 1972. Petitioners alleged that the City Charter (Chapter 45-20) prevented this increase from becoming binding until Petitioners and all other consumers were given thirty days written notice of the increase. Because the statements sent to water users on October 1st constituted the first written notice given of the increase, .Petitioners contend that the increased- rate could not become effective until thirty days thereafter. Inasmuch as, by its billing at the increased rate on October 1, the City maintains that there is an earlier effective date, there exists a genuine controversy justifying an action for declaratory judgment: The Circuit Court granted respondent’s motion to dismiss and the Third District affirmed upon the authority of its decisions in Shell Oil Co. v. State, 295 So.2d 648 (Fla.App.3d 1974); Federated Department Stores, Inc. v. Pasco, 275 So.2d 46 (Fla.App.3d 1973); Curtis Publishing Co. v. Bader, 266 So.2d 78 (Fla.App.3d 1972), and the Supreme Court’s decision in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Judge Pearson dissented on the grounds that the Frankel majority’s affirmance of the trial court’s dismissal of the class action was in conflict with this Court’s decision in Tenney v. City of Miami Beach, supra. We agree. Autrey v. Carroll, 240 So.2d 474 (Fla.1970). The Third District’s decision is also in conflict with this Court’s decisions in City of Miami v. Keton, 115 So.2d 547 (Fla.1959); Town of Davenport v. Hughes, 147 Fla. 228, 2 So.2d 851 (1941); State Road Department v. Bender, 147 Fla. 15, 2 So.2d 298 (1941); Allen v. Avondale Co., 135 Fla. 6, 185 So. 137 (1938); Olds v. Alvord, 133 Fla. 345, 183 So. 711 (1938); Dunscombe v. Smith, 127 Fla. 797, 174 So. 38 (1937). Additionally, conflict certiorari jurisdiction is found in that the Third District in deciding Shell Oil Co. v. State; Pasco, and Bader, supra, enunciated a rule of law which conflicted with the rule this Court formulated in Osceola Groves v. Wiley, 78 So.2d 700 (Fla.1955) and Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960). Moreover, the Third District in deciding Frankel and the above cases created a conflict by purportedly accepting the Osceola Groves decision as controlling precedent in cases which materially varied with Osceola Groves, supra. McBurnette v. Playground Equipment Corp., 137 So.2d 563 (Fla.1962).

Florida Rule of Civil Procedure 1.220 provides that class actions may be maintained

“When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.”

In Harrell v. Hess Oil and Chemical Corp., 287 So.2d 291 (Fla.1973), this Court enumerated the prerequisites which a complaint in a class action must contain in order to withstand a motion to dismiss, these being that the complaint must:

“(1) show the necessity for bringing the action as a class suit;
“(2) show plaintiff’s right to represent the class;
“(3) allege that plaintiff brought suit on behalf of himself and all others similarly situated;
“(4) allege the existence of a class, described with some degree of certainty; “(5) allege that the members of the class were so numerous as to make it impracticable to bring them all before the court; “(6) make it clear that plaintiff adequately represents the class; and “(7) show that the interests of the plaintiff were co-extensive (common interest-community of interest) with the interests of other members of the class.” Harrell, supra, at 293-94. (Explanation and emphasis added)

These seven requirements have been held to have been met as to plaintiff classes in numerous cases, e. g., City of Miami v. Keton, 115 So.2d 547 (Fla.1959); State ex rel. Bailey v. Gomez, 152 Fla. 355, 11 So.2d 569 (1943); Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (1942); City of Miami Beach v. Tenney, 150 Fla. 241, 7 So.2d 136 (1942); Town of Davenport v. Hughes, 147 Fla. 228, 2 So.2d 851 (1941); State Road Department v. Bender, 147 Fla. 15, 2 So.2d 298 (1941); Knowles v. Central Allapattae Properties, 145 Fla. 123, 198 So. 819 (1940); Dunscombe v. Smith, 139 Fla. 497, 190 So. 796 (1939); Allen v. Avondale Co., 135 Fla. 6, 185 So. 137 (1938); Olds v. Alvord, 133 Fla. 345, 183 So. 711 (1938); Meier v. Johnston, 110 Fla. 374, 149 So. 185 (1933); Pinellas County v. Town of Belleair Shore, 180 So.2d 510 (Fla.App.2d 1965); and Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla.App.2d 1965). Similarly, these requirements have been held to be satisfied as to a single plaintiff suing the members of unincorporated associations as defendant classes in Ross v. Gerung, 69 So.2d 650 (Fla.1954) and State ex rel. Vile v. Shaw, 52 So.2d 676 (Fla.1951), whereas the complaints in “plaintiff class actions” were found to be legally insufficient in Peters v. Meeks, 163 So.2d 753 (Fla.1964) and Larson v. Warren, 132 So.2d 177 (Fla.1961), and legally insufficient as to “defendant classes” in City of Lakeland v. Chase National Co., 159 Fla. 783, 32 So.2d 833 (1947).

The decisions of this Court cited above have construed Rule 1.220 and its predecessor as allowing class actions to be maintained in Frankel type situations. In Allen v. Avondale Co., supra, the plaintiff brought a class action challenging the continued enforcement of a restrictive covenant contained in the deeds of each purchaser of subdivision lots. This Court upheld the trial court’s ruling that a class action could be maintained even though the rights of each purchaser were separate, and each purchaser sought a separate award of money damages. In Dunscombe v. Smith, supra, we held that one or more bank depositors could maintain a class action on behalf of other depositors who were also beneficiaries to enforce a trust. Even though each beneficiary had a separate and distinct interest from the others and did not have a pecuniary interest in the proceeds that each individual beneficiary was entitled to, we held that the suit presented a question of common and general interest to the class. In Meier v. Johnston, supra, this Court held that one or more members of an unincorporated association can maintain a class action on behalf of the organization and its membership. Similarly, in Town of Davenport v. Hughes, supra, the trial court allowed one property owner to maintain a class action on behalf of all the property owners affected to enjoin the collection of taxes for city bonds. Even though the rights of each property owner were separate, we held that a class action was proper because there were common questions of law and fact. In City of Miami Beach v. Tenney, supra, this Court affirmed the trial court’s order allowing a class action to be maintained by two property owners who challenged the legality of a special assessment imposed on the lots of several hundred property owners. Again, we held that notwithstanding the separate rights of each property owner that there was a common question of law and fact. In the companion case of Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (1942), Mr. Justice Terrell, for the Court, succinctly summarized the purpose of class actions when he reasoned that

“The very purpose of a class suit is to save a multiplicity of suits, to reduce the expense of litigation, to make legal processes more effective and expeditious, and to make available a remedy that would not otherwise exist. The Chancellor had jurisdiction of the parties to the cause and the subject matter of the litigation. When this is the case, those of the class for whose benefit the suit is brought are in effect parties plaintiff. Wheelock v. First Presbyterian Church of Los Angeles, 119 Cal. 477, 51 P. 841; Whiting v. Elmira Industrial Ass’n, 45 App.Div. 349, 61 N.Y.S. 27. If this is not the case and the subject matter of the litigation cannot be held to respond to its necessary cost, then the advantage to be derived from a class suit is nullified. To have required 232 separate suits here would have been prohibitive and ridiculous and would have deprived many of a remedy.” Tenney v. City of Miami Beach, supra, 11 So.2d at 189.

Subsequently, in City of Miami v. Keton, supra, we affirmed the trial court which allowed two plaintiffs to represent 240,000 persons in challenging the authority of the City of Miami to impose fines under its traffic ordinance. This Court held, that although each person had a separate fine and there was no common or joint right, that a class action was proper since the question of law was common to the class.

In deciding Frankel, the Third District did not follow the above cases, but erroneously relied upon its earlier decisions in Shell Oil Co. v. State; Pasco, and Bader, supra, which in turn represent an erroneous construction of this Court’s decision in Osceola Groves v. Wiley, supra. Nielsen v. City of Sarasota, supra; McBurnette v. Playground Equipment Corp., supra.

In Osceola Groves, supra, this Court enunciated a special rule for class actions wherein fraud is alleged. Therein, the material allegations of the complaint and facts were as follows:

“Defendant Osceola Groves, Inc. is the alter ego of the defendant C. J. Gonter-man and was organized by him and used for the purpose of defrauding plaintiffs and others similarly situated. The corporation subdivided about 394 acres of land into one acre units and sold these units for $1,000 each to numerous persons each of whom signed similar contracts of sale and lease agreements. Each plaintiff is the owner of units purchased under this scheme by contract from the corporation. Plaintiffs bring the suit as a class suit on behalf of themselves and all others similarly situated, and ‘Said persons constitute a class having a common or general interest in the subject matter of this suit, and they are so numerous as to make it impracticable to bring them all before the court, and for that reason, the plaintiffs sue on behalf of all, as allowed by the 1954 Florida Rules of Civil Procedure, rule 3.6.’
“In the sale contracts of the units of land the corporation promised the plaintiffs to plant each tract with citrus trees, to replace any trees that may die in planting, to cultivate and maintain the trees, and to provide for marketing of the crops. In ninety-nine year leases executed simultaneously with the contract of purchase, the plaintiffs each agreed that the land units should be under control of the defendant corporation for ninety-nine years. In these leases the corporation agreed to maintain the units in keeping with good husbandry and to market the crops, to keep separate accounts for each unit and to make annual reports, to pay to the owner of each unit ‘80% of the earnings of said property’ and to retain ‘20% of the earnings’ for its services in connection with the land. Defendants abided by the agreements until about 1948. Thereafter defendants breached the so-called lease agreements in that they fraudulently operated under the agreements for their own benefits and ‘saw to it that the expense of maintenance arose from approximately $35.00 per acre unit in 1947 to more than $175.00 per acre unit in 1953,’ and they ‘so manipulated the costs of maintenance and operation of each unit that each year the cost of operation and maintenance was nearly equal to or exceeded the return from each unit under a scheme to keep the expenses increasing in order to retain all of the income from the land,’ and they wrongfully, with intent to defraud, took returns from the land which should have gone to plaintiffs. Defendants have wrongfully failed to account for and have withheld from plaintiffs and others similarly situated monies due them in an amount of about $800,000.
“Plaintiffs prayed for an accounting, for an order enjoining disposition of corporate assets, for cancellation of the ninety-nine year lease contracts, for a receiver to take over operation of the groves, and for an order enjoining defendants from doing any more work on the properties involved in the litigation.
“Attached to and made a part of the complaint are copies of the contract of sale and the lease agreement entered into between the corporation and plaintiff Verna B. Wiley. Both of these instruments bear the date December 7, 1943. The complaint does not contain copies of the contract and lease agreement alleged to have been entered into by the plaintiff Bessie E. Duncan.” Osceola Groves, supra, at 701-02.

The allegation of fraud in a class action complaint presented this Court with a question of first impression. In deciding Osceola Groves, we considered the decisions of our sister states and those of the Federal • courts. We observed that:

“With reference to the subject of similar frauds, practiced on various persons as the basis of representative suit, in Note, 1938, 114 A.L.R. 1015, 1019, it is stated:
‘Thus far, neither under existing codes nor under general rules of law, has a representative action to recover damages for similar frauds practiced on numerous persons been upheld. In general, the objections to such suits seem to be the same as those applying to representative suits to rescind for fraud; namely, that the demands of the various defrauded parties are not only legally distinct, but each depends upon its own facts, and that a material difference in facts may exist. Furthermore, a choice of remedies is ordinarily presented, and the plaintiff cannot know that other persons similarly situated will not elect to affirm the fraudulent transaction.’ ” Osceola Groves, supra, at 702.

In applying the above to the facts presented therein, we held that because of the numerous remedies and options available to each prospective plaintiff that it would cause an injustice to allow the suit to proceed as a class action. Specifically, we stated that

In the instant case we note particularly that each of the alleged numerous purchasers of units of land acquired his interest under separate contracts with the defendant and it does not appear that in these contracts was any provision showing a cooperative enterprise or any showing that any purchaser had a pecuniary interest in any development of lands other than those covered by his own contract. Further the complaint shows that other alleged purchasers, if they have any cause of action against defendants, have a choice of remedies available to their individual selection and their rights of actions may be subject to separate and distinct defenses.
“One or two simple illustrations demonstrate conclusively that the facts alleged in the complaint below not only do not present a situation which is the subject of a class suit but that to allow it to proceed as a class suit could work great injustices upon many persons who were not subject to the processes of the court and could well result in depriving such persons of their property without due process of law. For example, it may well be that some of the purchasers have used the alleged losses occasioned by the actions of the sellers to their advantage in their income tax returns over a long period of time. The litigation could terminate in substantial liability for costs. Moreover, there may be many purchasers who are satisfied with their bargains whether the trees had ever been planted or, if planted, regardless of the costs of maintenance. There may be differences in every one of the many contracts involved of a nature that would result in the legal rights of the parties, in each instance being different.” Osceola Groves, supra, at 702-03.

As it may be surmised from the above quoted passage, we held that in order to institute or defend a class action wherein fraud is alleged the members of the class must: 1) be engaged in a cooperative enterprise; 2) have a joint pecuniary interest; and 3) not have a choice of remedies which may be subject to separate and distinct defenses.

In enunciating the above rule, we relied primarily upon the Ninth Circuit’s decision in Associated Almond Growers of Paso Robles v. Wymond, 42 F.2d 1 (9th Cir. 1930) which was directly on point. At the time of our decision in Osceola Groves, supra; Associated Almond Growers, supra, represented the majority position of the Federal courts as to class actions wherein fraud was alleged. Baker v. Spokane Savings Bank (Smith v. Spokane Savings Bank), 71 F.2d 487 (9th Cir. 1934); Associated Almond Growers, supra; Speed v. Transamerica Corp., 5 F.R.D. 56 (D.Del.1945); Willcox v. Harriman Securities Corp., 10 F.Supp. 532 (S.D.N.Y.1933); Gilbert v. Clark, 13 F.R.D. 498 (D.Mass.1952). Subsequent to our adoption of the Federal rule in Osceola Groves, however, the Federal courts receded from that view, Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913 n. 5 (9th Cirv 1964); Cherner v. Transitron Electronic Corp., 201 F.Supp. 934 (D.Mass.1962); and adopted the exact opposite view. Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968), cert. den’d, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969); Harris, supra; Vernon J. Rockier & Co. v. Graphic Enterprises, Inc., 52 F.R.D. 335 (D.C.Minn.1971); Harris v. Jones, 41 F.R.D. 70 (D.Utah 1966); Fischer v. Kletz, 41 F.R.D. 377 (S.D.N.Y.1966). Since the complaint in the instant case does not allege fraud, we have no occasion to consider the desirability of continued adherence to the fraud class action rule adopted in Osceola Groves, supra.

We must examine, however, the misapplication of the Osceola Groves fraud rule by the district courts to class actions wherein fraud has not been alleged since as noted above it was not our intent that the Osceola Groves “fraud rule” be given general application to class actions, e. g., Allen v. Avondale Co., supra; Dunscombe v. Smith, supra.

The district courts have correctly applied the Osceola Groves fraud class action rule in Costin v. Hargraves, 283 So.2d 375 (Fla. App.1st 1973); Equitable Life Assurance Society of United States v. Fuller, 275 So.2d 568 (Fla.App.3d 1973) and Hendler v. Rog ers House Condominium, Inc., 234 So.2d 128 (Fla.App.4th 1970). However, the district courts have misapplied this limited rule in numerous cases. The precedential origin of each of these can be traced back to the misapplication and incorrect interpretation of our decision in Osceola Groves, supra. The following chronological citations with explications shows how the district courts have misapplied this rule and have decided subsequent cases upon the authority of earlier erroneous decisions. Metropolitan Dade County v. Maddox, 242 So.2d 165 (Fla. App.3d 1971) (citing Osceola Groves); Wilson v. First National Bank of Miami Springs, 254 So.2d 362 (Fla.App.3d 1971) (citing Osceola Groves), John E. Withers Transfer and Storage Co. v. Overstreet, 254 So.2d 855 (Fla.App.3d 1971) (citing Osceola Groves), Curtis Publishing Co. v. Bader, 266 So.2d 78 (Fla.App.3d 1972) (citing Wilson which relied upon Osceola Groves); Daniels v. National Brands Tire Co., Inc., 270 So.2d 448 (Fla.App.3d 1972) (citing Osceola Groves and Wilson); Federated Department Stores, Inc. v. Pasco, 275 So.2d 46 (Fla.App.3d 1973) (citing Osceola Groves; Wilson and Daniels); Watnick v. Florida Commercial Banks, Inc., 275 So.2d 278 (Fla. App.3d 1973) (citing Osceola Groves and Wilson); Sams Winn-Dixie Stores, Inc., 294 So.2d 337 (Fla.App.3d 1974) (citing Osceola Groves; Wilson; Pasco and Watnick); Randall v. General Accident Fire and Life Assurance Corp., Ltd., 296 So.2d 61 (Fla. App.3d 1974) (citing Osceola Groves); Jackson v. Alterman Transport Lines, Inc., 301 So.2d 795 (Fla.App.3d 1974) (citing Watnick which relied upon Osceola Groves and Wilson and Pasco which relied upon Osceola Groves, Wilson and Daniels).

In none of the above foregoing “class action” decisions of the Third District was fraud alleged. Accordingly, the above decisions insofar as they apply the Osceola Groves fraud class action rule to class actions wherein fraud was not alleged are expressly overruled. We express no opinion, however, as to whether the class actions sought to be maintained in the above cases satisfied the requirements of Florida Rule of Civil Procedure 1.220. In satisfying the rule’s requirement “more is required than the mere pleading the language of the statute”. Osceola Groves v. Wiley, supra, at 702, citing City of Lakeland v. Chase National Co., supra, 32 So.2d at 838. In the average class action the information needed to satisfy the requirements of the rule as enunciated in Harrell, supra, at 293-94, can only be obtained through discovery. Consequently, trial courts should reserve ruling on a motion to dismiss until the party seeking to represent or maintain an action against a class has had the opportunity to employ sufficient discovery to ascertain the necessary information that must be plead. Thus, the rules of civil procedure must be liberally construed in permitting the amendment of pleadings. Even though this Court could determine whether the plaintiff’s complaint satisfies the Harrell standards, Marley v. Saunders, 249 So.2d 30 (Fla.1971), we decline to do so except insofar as holding that the complaint does present a common question of law, to-wit: Whether Ordinance 1936 increasing the water rates for all consumers of water in the City of Miami Beach was applied prior to its effective date. As' to the other six standards enunciated in Harrell, supra, we express no opinion. Rather, this determination should be made by the trial court in accordance with our decision herein.

The Third District in affirming the trial court’s dismissal also cited Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). In Eisen, supra, 94 S.Ct. at 2151, the Supreme Court held that procedural due process in class actions requires that

“ . . . individual notice must be provided to those class members who are identifiable through reasonable effort.”

Applying the Eisen due process rule to the instant case, we find that the class Frankel seeks to represent is readily identifiable through reasonable effort. The members of the plaintiff class may be ascertained through discovery. As an example only, individual notice given to the class members by a notice inserted in the defendant’s regular monthly billing to its water users might be found to be adequate. Once notice to the class members has been effected, the Eisen mandate will be satisfied.

The decision of the Third District is quashed and this cause is remanded to the trial court for proceedings consistent with our decision.

It is so ordered.

OVERTON, C. J., ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., and LEE, Circuit Court Judge, concur.

BOYD, J., dissents.

      . Rule 1.220 is identical to its predecessor, Section 14 of the 1931 Chancery Act.

      . We note that in City of Miami Beach v. Jacobs, 315 So.2d 227 (Fla.App.3d 1975), the Third District Court of Appeal affirmed a finding that a class suit was proper although the factual situation apparently was materially identical to this case.

      . The constitutional procedural due process requirement is the only facet of the Eisen decision which must concern us herein. The remainder of the Supreme Court’s decision regards its interpretation of the Federal class action rule which, absent constitutional considerations, is inapplicable to our interpretation of Florida Rule of Civil Procedure 1.220.


source: Caselaw Access Project

license: Public Domain

text:
    Lenora JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 49123.
    Supreme Court of Florida.
    Oct. 7, 1976.
    Rehearing Denied Jan. 13, 1977.
    Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., for respondent.
   PER CURIAM.

We entered our order allowing certiorari and dispensing with oral argument in this case because of conflict between the decision rendered by the District Court of Appeal, Fourth District, 328 So.2d 457, and Edwards v. State, 223 So.2d 746 (Fla. 3d DCA 1969). We have reviewed the arguments of counsel as presented in their briefs submitted to this Court.

The conflict of decision between the instant case and Edwards, supra, having been resolved in King v. State, Fla., 339 So.2d 172, opinion filed this day, the writ of cer-tiorari issued herein is discharged.

It is so ordered.

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


author: ROBERTS, Justice.

text:
    Howard N. GALBUT, as Executor of the Estate of Nathaniel Garfinkl, Deceased, Petitioner, v. Mae Diamond GARFINKL, Respondent.
    No. 49515.
    Supreme Court of Florida.
    Oct. 7, 1976.
    Rehearing Denied Jan. 13, 1977.

      Michael B. Solomon of Theodore M. Trushin Law Offices, Miami Beach, for petitioner.
    Edward A. Perse of Horton, Perse & Ginsberg and William W. Bailey, Miami, for respondent.
   ROBERTS, Justice.

This cause is before us on petition for writjof certiorari granted to review a decision jof the District Court of Appeal, Third District (reported at 330 So.2d 812), certified to us as passing upon a question of great public interest. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Nathaniel Garfinkl filed a petition for dissolution of marriage on August 1, 1973, alleging that his brief marriage to Mae Diamond Garfinkl was irretrievably broken. Respondent, wife, answered denying that the marriage was irretrievably broken stating that with help and proper guidance, the marriage could be saved, and requesting that the dissolution proceedings be continued for a period of three months in order that the parties may attempt reconciliation. She counter-petitioned for temporary alimony to sustain herself during the penden-cy of the proceedings which request was subsequently denied after hearing by order of the trial judge entered April 22, 1974.

By order entered November 27, 1973, the trial court set the cause for trial for the week of January 7, 1974. However, because Nathaniel Garfinkl was taken seriously ill and upon his motion for continuance to that effect, the cause was reset for trial for the week of April 22, 1974. Subsequently, respondent-wife moved for a continuance of the trial since she had become hospitalized and would not be able to appear for trial of the cause. The trial was then reset for the week of September 5, 1974.

The cause came on for hearing on September 13, 1974, with respondent being absent because of her illness although represented at the hearing by her counsel. Since the proceedings could not be completed on that date, the court continued the hearing. Acknowledging the need for the appointment of a commissioner to take the wife’s deposition in New York because of her illness, the trial judge announced at the September 13th hearing that a commissioner would be appointed.

The continued hearing was had on Tuesday, October 8, 1974, at which time the wife’s deposition had not been taken. At the commencement of the hearing counsel for respondent advised the court that they were going to New York Friday to take Mrs. Garfinkl’s testimony and that of her physician. Upon motion of respondent-wife for appointment of a commissioner to take the aforedescribed depositions to be used at the trial, the trial judge entered order filed for record October 9, 1974, appointing a commissioner to take the wife’s deposition on October 11.

At the opening of the continued hearing, the trial judge expressed his intent to enter a partial judgment of dissolution in the cause, as follows:

“THE COURT: You know, at the last hearing I was almost inclined to grant a partial judgment in this case and grant him a divorce, and leave for determination the matter of monies and so forth that may be subject to distribution between the parties. Now nobody made an ore tenus motion to that effect. I think we proved up, there is no contest as to the divorce itself.”

Counsel for petitioner-husband responded:

“MR. GALBUT: I plan to make that, but his cross examination wasn’t even finished. I mean, we haven’t — ”

Counsel for respondent then objected to the precipitous granting of a partial judgment at this time in that it would be premature to grant the dissolution before the wife’s testimony was in.

Upon conclusion of the cross-examination of Nathaniel Garfinkl, his counsel moved the court for a partial judgment in the matter insofar as the granting of a divorce and the trial judge orally expressed his intention to grant the partial judgment for dissolution. By order entered November 15, 1974, the trial court granted a “Partial Final Judgment of Dissolution of Marriage” adjudging that the marriage of Nathaniel and Mae Diamond Garfinkl, being irretrievably broken, is dissolved and reserving for final determination the question of respondent-wife’s petition for affirmative relief.

Subsequently, Nathaniel Garfinkl died on December 13, 1974. His executor was substituted as a party to the suit.

Upon appeal of the partial judgment of dissolution, the District Court of Appeal was confronted with the question of whether the trial court erred in entering the order of dissolution without hearing or considering respondent-wife’s testimony regarding whether or not the subject marriage is irretrievably broken.

The District Court of Appeal reversed the Order of Dissolution and held that it was error for the trial judge to enter the order dissolving the marriage at a hearing where the motion for such an order was made upon the trial judge’s own suggestion; that it was error for the trial judge to announce that he would consider the wife’s deposition and then at the continued hearing to resolve the matter of dissolution without consideration of the same; and that the wife was effectively deprived of notice of hearing since the District Court determined the wife was not given notice that the court would consider dissolution at the second hearing.

We do not agree with the District Court that respondent-wife did not have sufficient notice that the trial judge would consider the merits of the dissolution action, nor do we agree that the trial judge acted improperly in suggesting that a motion for partial judgment be made. In fact, as evidenced by the record, the husband’s counsel informed the court that he had fully intended to make such a motion but felt that it would be more appropriate to complete the cross-éxamination of Mr. Garfinkl before doing so. He then, after said cross-examination, did make such a motion which the trial judge granted. We remain mindful of the well established proposition that in the absence of a controlling statute or overriding rule of procedure, trial courts have a broad discretion in the trial of a cause. Rose v. Yuille, 88 So.2d 318 (Fla.1956); Bowen v. Manuel, 144 So.2d 341 (Fla.2d DCA, 1962); F & B Ceco, Inc. of Florida v. Galaxy Studios, Inc., 216 So.2d 75 (Fla.3d DCA, 1968).

However, we do agree that the trial judge erred in announcing that he would consider the wife’s deposition and then proceed to determine the matter without receipt or consideration thereof. In Ryan v. Ryan, 277 So.2d 266 (Fla.1973), this Court explained:

“It is suggested that a circuit judge would hesitate to adjudicate that a marriage is not ‘irretrievably broken’ under the present statute when the petitioner simply says that is the fact; that the judge becomes nothing more than a ministerial officer receiving the ‘irretrievably broken’ message and having so received it, being thus compelled to drop this legislative guillotine upon the marriage, thus excising the troublesome mate from the petitioner because the petitioner has subjectively and unilaterally determined that his marriage is irretrievably broken.
“We do not view the matter of dissolution as being such a simple, unilateral matter of one mate simply saying ‘I want out.’ All of the surrounding facts and circumstances are to be inquired into to arrive at the conclusion as to whether or not indeed the marriage has reached the terminal stage based upon facts which must be shown. Even in uncontested dis-solutions, the court would properly make inquiry to determine this fact, for the statute itself in § 61.052 provides in subsection (2) the basic predicate: ‘Based on the evidence at the hearing. [and even] (a) . if the respondent does not . . . deny that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of the marriage, if the court finds that the marriage is irretrievably broken.’ (emphasis added)
* sj< sj« * * sfc
“And so it is that in every instance the court should make that determination by proper inquiry. It is never a simple matter of ‘Is your marriage “irretrievably broken”?’ ‘Yes, your honor, I believe it is.’ And that ends it, like the oriental ritual of the husband severing his marriage by tossing three stones in the sand one by one and in sequence saying, ‘I divorce thee; I divorce thee; I divorce thee.’ There must be appropriate evidence (albeit uncorroborated as the statute allows) that in truth and in fact the marriage is irretrievably broken.”

The District Court in certifying its decision to this Court stated that it passed upon a question of great public interest in that it holds that an order dissolving a marriage prior to final judgment shall be regarded as an interlocutory order and not as a partial judgment.

The trial judge in a marriage dissolution proceeding has the power to reserve jurisdiction for the purpose of settling property rights after entering the decree of dissolution. Hyman v. Hyman, 310 So.2d 378 (Fla.2d DCA, 1975), certiorari discharged 329 So.2d 299 (Fla.1976); Kipnis v. Kipnis, 330 So.2d 67 (Fla.3d DCA, 1976); Becker v. King, 307 So.2d 855 (Fla.4th DCA, 1975), certiorari dismissed 317 So.2d 76 (Fla.1975); In re the Marriage of Golub, 310 So.2d 380 (Fla.2d DCA, 1975); Klarish v. Klarish, 296 So.2d 497 (Fla.3d DCA, 1974).

Section 61.052, Florida Statutes, provides in pertinent part:

“If, at any time, the court finds that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of the marriage. . . .”

We find that the partial judgment of dissolution is final insofar as the marital status of the parties is concerned although it must be reversed on grounds hereinabove stated. Cf. Becker v. King, supra. In Klarish v. Klarish, supra, wherein appellant contended that the trial court had erred in entering a final judgment of dissolution prior to the time disposition had been made of the entire case, the District Court of Appeal explained:

“First, in the area of domestic relations, it is common practice for a chancellor to enter a judgment dissolving the marriage and to reserve jurisdiction to determine the severable issues of alimony, child custody and support pending further investigation into these matters. See, e. g., Lippincott v. Lippincott, Fla. App.1973, 287 So.2d 144.
“Second, Fla.Stat. § 61.052(2), F.S.A. clearly states that ‘if, at anytime, the court finds that the marriage is irretrievably broken the court shall enter a judgment of dissolution of the marriage.’ [Emphasis supplied]”

Accordingly, we would affirm in part the decision of the District Court reversing the order dissolving the marriage insofar as it found error on the part of the trial judge in announcing that he would consider the respondent’s deposition and then at the continued hearing resolve the matter without evidence from the wife. The remainder of the decision is quashed for the reason here-inabove stated and the cause is remanded for further proceedings consistent herewith. It is so ordered.

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


author: PER CURIAM

text:
    Rudolph Valentine LEE, Appellant, v. STATE of Florida, Appellee.
    No. 47690.
    Supreme Court of Florida.
    Dec. 9, 1976.
    Roy E. Dezern and Walter R. Stedeford, Jacksonville, for appellant, .
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky and Richard L. Wilson, Asst. Attys. Gen., for appellee.
   PER CURIAM

On June 22, 1972, appellant was adjudicated guilty of murder in the first degree and sentenced to death. One week later the United States Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which held unconstitutional the imposition of the death penalty in the cases before it. On July 19, 1972, appellant filed a motion to correct his sentence because it was illegal under Fur-man. The trial court granted the motion, appellant’s sentence was reduced to life imprisonment, and the State appealed to the First District Court of Appeal.

Before the District Court rendered a decision, the death sentences of every other defendant condemned to death under Florida’s pre-Furman death penalty statute were reduced. In re Baker, 267 So.2d 331 (Fla.1972); Anderson v. State, 267 So.2d 8 (Fla.1972); Adderly v. Wainwright, 58 F.R.D. 389 (M.D.Fla.1972). At the time these decisions were rendered, appellant was under a sentence of life imprisonment and therefore was not affected by them. While appellant’s appeal was pending before the District Court, the Legislature passed a death penalty statute designed to meet Furman objections, Section 921.141, Florida Statutes (1973), and the statute was upheld as constitutional by this Court, State v. Dixon, 283 So.2d 1 (Fla.1973). Applying the new statute, the District Court reversed the order which had reduced appellant’s sentence and held that subjecting appellant to the new sentencing procedure did not collide with constitutional ex post facto principles. State v. Lee, 286 So.2d 596, 600 (Fla. 1st DCA 1974).

This Court reversed, in part, on a question not considered by the District Court, but affirmed, in part, and remanded for a sentencing procedure under the new death penalty statute. Lee v. State, 294 So.2d 305 (Fla.1974). The sentencing procedure was conducted and appellant was again sentenced to death. We now review the second sentence of death.

Had the able attorney who represented the appellant at trial not requested the trial judge to reduce the death sentence under the then-recent Furman decision, this appellant’s sentence would have been reduced to life in Anderson v. State, supra. The United States Supreme Court in upholding our death penalty statute this year noted specifically that it is our responsibility to “review each death sentence to ensure that similar results are reached in similar cases.” Proffitt v. Florida, 428 U.S. 242, 258, 96 S. Ct. 2960, 2969, 49 L.Ed.2d 913 (1976), citing State v. Dixon, 283 So.2d 1, 10 (1973). We do not think the question of whether a person should live or be put to death by the State should be determined by the legal procedures of when his request for reduction of sentence was made. We hereby recede from our prior decision in Lee v. State, 294 So.2d 305 (Fla.1974), to the extent that it conflicts herewith.

We have considered the issue carefully, and it is our judgment that the constitutional mandate of equal protection requires reduction of appellant’s sentence from death to life.

It is so ordered.

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

ADKINS and ROBERTS (Retired), JJ., dissent.


author: SUNDBERG, Justice.

text:
    FRED McGILVRAY, INC., a Florida Corporation, Appellant, v. Reubin O’D. ASKEW, Governor, et al., Appellees.
    No. 48754.
    Supreme Court of Florida.
    Dec. 9, 1976.

      Richard P. Kenney, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Caroline C. Mueller, Asst. Atty. Gen., for appel-lees.
   SUNDBERG, Justice.

This cause comes before us on appeal from the Circuit Court in and for Leon County. Our jurisdiction vests under Article V, Section 3(b)(1), Florida Constitution.

The trial court, the Honorable Ben C. Willis, prepared a summary final judgment which even counsel for appellant describes as “a model of clarity.” We adopt as our own the court’s findings of fact and analysis of the law applicable thereto:

“This cause is before the Court on the Motions for Summary Judgment of both the plaintiff and the defendants, and the Court having considered the pleadings, depositions, affidavit and other papers on file and having heard argument of counsel for the parties and being otherwise advised, it is

“ORDERED AND ADJUDGED:

“1. The Court has jurisdiction of the parties and the subject matter of this cause, which presents a justiciable controversy within Chapter 86, Florida Statutes for rendition of a declaratory judgment.

“2. There is no genuine issue of material fact and summary judgment may be entered as a matter of law.

“3. The plaintiff contests an assessment totalling $6,848.95 plus interest for alleged accrued sales and use taxes under Chapter 212, Florida Statutes. The plaintiff was a subcontractor to Roberts Realty, Ltd. for a construction project in the Bahamas wherein the plaintiff supplied materials to the contractor and fabricated or installed these materials for improvement of real property in the Bahamas in connection with plumbing and air conditioning equipment on the construction project. The contract was a cost plus fee type of contract. The tax assessed is principally on tangible personal property ordered by the plaintiff from various vendors, both within and outside the state, which were shipped by the vendors to the plaintiff or to Roberts Realty, Ltd., in care of Transworld Marine in Miami where they were stored and/or later loaded onto barges chartered by the general contractor for shipment to the Bahamas. In some instances the property purchased in the Miami area and some from out of state vendors were either picked up by plaintiff from the vendor or shipped to plaintiff’s Miami address, but all eventually reached the Bahamas in connection with the contract. There were no bills of lading or export declarations in connection with these items, and the barge transporting them is not a common carrier.

“4. Other types of property taxed involved a relatively small amount of money and are not in serious contention. They will be merely mentioned, but not discussed. They are: employee purchases for plaintiff reimbursed to employee by expense accounts but not showing initial payment of sales taxes; items claimed to have been taxpaid but invoices list no sum for sales taxes; freight charges on goods not shown to be sold F.O.B. shipping point; charges for labor sold along with sale and repair of property; and certain sales taxed at 3% when it should have been 4%.

“5. The question is whether or not goods purchased by plaintiff from various vendors and delivered to Transworld Marine at Miami and from there loaded onto a barge chartered by the plaintiff’s prime contractor and shipped to the Bahamas in furtherance of plaintiff’s construction subcontract are subject to sale and use taxes, or are they exempt as being a tax on exports forbidden by Clause 2, Section 10, Article I, U. S. Constitution, known as the Import-Export Clause. There is no issue but that the property involved is tangible personal property which would be subject to such taxes unless they are ‘exports’ within the Import-Export Clause above mentioned. The plaintiff contends that they are ‘exports’ and thus not taxable, in accord with State ex rel. Sunair Electronics, Inc. v. Green, Fla.App. 1st — 1965, 177 So.2d 490; cert. denied, 180 So.2d 464. The state contends that they became taxable prior to their export, because the purchase or use activated the tax prior to their entry into the export stream.

“6. Section 212.06(5), Florida Statutes, states that it is not the intention of the sales and use tax law (Chap. 212) to levy a tax on property imported, produced or manufactured in the state ‘for export’, but expressed tests for this as the delivery of the property ‘to a licensed exporter for exporting or to a common carrier for shipment outside of the state or mails the same by United States mail to a destination outside the state.’ In the case at bench there is no contention that any of these conditions are met. However, the statute further expresses an intention not to levy a tax ‘on any sale which the state is prohibited from taxing under the Constitution.’ This latter expression merely states what would be applicable regardless of the provisions of the statute.

“7. In the Sunair case, supra, it was held that the taxpayer’s act of placing electronic equipment sold to a foreign purchaser aboard purchaser’s aircraft, but not installing it thereon, committed the equipment to the export stream and effectively passed title thereof from the taxpayer to the purchaser so that this transaction did not constitute a sale by the taxpayer in the open market rendering it subject to the state sales tax.

“8. The case at bench differs from Su-nair in that here the property is purchased and delivered and comes to rest at a storage place prior to being loaded onto the instru-mentalities, i. e. the barges, which will move them outside the country to the foreign destination. This case is more analogous to, and is controlled by, Kosydar v. National Cash Register, 417 U.S. 62, [94 S.Ct. 2108] 40 L.Ed.2d 660 (1974). In that case NCR manufactured certain electronic machines especially for export which were not suitable in the domestic trade. Prior to shipment abroad they were stored in a warehouse in Ohio, which state sought to impose an ad valorem tax on them. The Supreme Court of Ohio ruled the tax was prohibited as the goods were exports and came within the Import-Export Clause of the Constitution. The Supreme Court of the United States reversed and in so doing stated the question to be whether a sufficient commencement of the process of exportation has occurred so as to immunize the articles from taxation. It was said that ‘at least some such entrance [into the export stream], is a prerequisite to the Clause’s operation’, and that its ‘protections are not available until the article at issue begins its physical entry into the stream of exportation.’ This case cited the case of Empresa Siderurgica v. County of Merced, 337 U.S. 154, [69 S.Ct. 995,] 93 L.Ed. 1276, which in turn referred to the early case of Coe v. Errol, 116 U.S. 517, 29 L.Ed. 715. In the Coe case it was said:

‘Do the owner’s state of mind in relation to the goods, that is, his intent to export them, and his partial preparation to do so, exempt them from taxation?’

A negative answer was given with the comment that not ‘until they have been shipped or entered with a common carrier for transportation to another state or have started upon such a transportation in a continuous route or journey’ have they entered the status of being beyond the power of the state for taxation. Referring to the test in Coe, the Supreme Court of the U. S. in Empresa stated:

‘Under that test [Errol v. Coe ] it is not enough that there is an intent to export, or a plan which contemplates exportation, or an integrated series of events which will end with it. . . It is the entrance of the articles into the export stream that marks the start of the process of exportation. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing less will suffice.’

“9. It is not perceived that Kosydar is inconsistent with or overrules Sunair. The latter case finds support in the U. S. Supreme Court decisions of Spaulding & Bros. v. Edwards, 262 U.S. 66, [43 S.Ct. 485] 67 L.Ed. 865, in which the goods were delivered to a common carrier for transport to the purchaser at its foreign destination, and Richfield Oil Corp. v. State Bd. of Equalization, 329 U.S. 69, [67 S.Ct. 176] 91 L.Ed. 80, in which oil purchased by the New Zealand government to be delivered F.O.B. Los An-geles was pumped from the seller’s storage tanks into the hold of the New Zealand tanker and thereafter transported to its foreign destination. In both of those cases attempts to collect state sales taxes were held to violate the Clause. The Kosydar, Coe and Empresa cases involved ad valorem taxes. However, the principles are the same. The goods become immune from state taxation when they are sufficiently committed to the export stream at the time the tax would accrue as to make certain the foreign destination. When there is no delivery to a common carrier for delivery to the purchaser abroad, or no preparation of bills of lading or export declarations are made, or no physical placing of the goods on the instrumentality for removal from the country, prior to accrual of what would be taxable transactions under Chapter 212, then the immunities of the Import-Export Clause do not attach.

“10. The case of Sumitomo Forest Co. v. Thurston, U.S.C.C.A.9-1974, 504 F.2d 604, is in accord with the foregoing and in that case it was stated:

‘Certainty of export evidenced by financial and contractual relationships does not by itself render goods “exports” before their commencement of their journey abroad.’

“11. The case of Farmer’s Rice Cooperative v. County of Yola, [44 Cal.App.3d 1] 118 Cal.Rep. 500, is very similar to the case at bench and is in accord. This involves an ad valorem tax but the principles are the same.

“12. In view of the foregoing it is hereby declared that the goods purchased by the plaintiff and delivered to Transworld Marine without export declaration or bill of lading for foreign export duly executed are not exempt from Chapter 212 taxes under the Import-Export Clause of the U. S. Constitution. Such declaration is deemed dis-positive of the issues involved and the collection of taxes and accrued interest shall follow in due course without the necessity of further judicial action. However, if it should become necessary to further implement this judgment jurisdiction is retained for that purpose, but this judgment is deemed to be final and no further judicial labor is contemplated.

“ORDERED AND ADJUDGED in Chambers at Tallahassee, Florida this 12th day of September, 1975.”

Appellant has phrased the question involved in this appeal as, “Does the State of Florida have constitutional and statutory authority to impose the sales tax on goods purchased from outside and within the State of Florida and for the sole purpose of being exported from Florida to the consumer in the Bahamas?” We believe that appellant’s language assumes too much, and we therefore find that the question which the trial court answered affirmatively is better phrased by appellees:

“Whether the items at issue in the instant case which items were purchased inside the State of Florida or from outside the State of Florida and delivered into the State of Florida were ‘exports’ and thus whether the Florida Department of Revenue was correct in assessing sales and use taxes on these items pursuant to Chapter 212, Florida Statutes.”

As indicated above, we believe that the trial judge applied the law properly to the facts as he found them to be expressed in the pleadings and proof and in the motions of both parties for summary judgment. Of essential importance to this determination was whether there existed valid ocean bills of lading and export declarations, which would, of course, be convincing indicia of a commitment to the stream of exports. The trial judge expressly found that no such documents existed as to the items whose taxable status is at issue in these proceedings. Various documents, including bills of lading and export declarations, are appended to appellant’s brief in this Court, but we agree with appellees that these papers were never properly before the lower court for purpose of the hearing on the motions for summary judgment. The documents were merely attached to an “Agreed Statement of Facts” prepared and filed by the appellant, but never accepted by appellees. In fact, appellees filed a response entitled “Answer to Agreed Statement of Facts” which denied and controverted the assertions in appellant’s statement. Consequently, the contents of appellant’s “Agreed Statement of Facts” had no procedural or evidentiary significance in determination of the motions for summary judgment presented to the trial judge. If appellant wished the purported documents to be before the court on the motion for summary judgment, Rule 1.370(a), Fla.R.Civ.P., would have been the appropriate procedure to utilize.

Central to our determination that appellant had no valid indicia of a commitment to export was an affidavit executed by the DOR tax examiner who conducted the audit of appellant’s books and records. The affidavit recites in detail the inability of McGil-vray or its vendors to show valid export declarations or bills of lading concerning the goods whose taxability is now at issue. The examiner stated in support of his conclusion that these items were subject to state sales and use taxes:

“The goods were being shipped not by a common carrier but by, in effect, McGilvray’s own transportation. There were for the most part no Shipper’s Export Declarations or Bills of Lading. In a few cases there were only unsigned Shipper’s Export Declarations or Bills of Lading. . . . ”

Section 212.06(5), Florida Statutes (1969), establishes a presumption that tangible personal property is not to be considered “as being imported, produced or manufactured for export unless the importer, producer or manufacturer delivers the same [i] to a licensed exporter for exporting, or [ii] to a common carrier for shipment outside the state or [iii] mails the same by United States mail to a destination outside the state.” This presumption, of course, is rebuttable by the taxpayer. The facts properly before the trial court negated the assertion that the goods qualified for exemption by delivery to a common carrier and likewise failed to establish through proper documents or otherwise that the property had been committed to the stream of exports. Accordingly, the taxpayer in this case failed to carry its burden of overcoming the statutory presumption. It must follow, then, that the property here at issue “[came] to rest in this state and [became] a part of the mass property of this state.”

The final summary judgment in favor of appellees is affirmed.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, HATCHETT and ROBERTS (Retired), JJ., concur.

      . Section 212.06(5), Florida Statutes (1969), reads:
      “It is not the intention of this chapter to levy a tax upon tangible personal property imported, produced or manufactured in this state for export, provided that tangible personal property shall not be considered as being imported, produced or manufactured for export unless the importer, producer or manufacturer delivers the same to a licensed exporter for exporting, or to a common carrier for shipment outside the state or mails the same by United States mail to a destination outside the state; or in the case of aircraft being exported under their own power to a destination outside the continental limits of the United States, or in the case of parts and equipment installed on aircraft of foreign registry, by submission to the department of duly authenticated copies of an aircraft manifest and a duly signed and validated United States customs declaration, each showing the departure of the aircraft and the export of the parts and equipment from the continental United States; and further with respect to aircraft, the canceled United. States registry of said aircraft; nor is it the intention of this chapter to levy a tax on radio broadcasting, or any sale which the state is prohibited from taxing under the constitution or laws of the United States.”

      . Section 212.06(6), Florida Statutes (1969), enunciates:
      “It is however, the intention of this chapter to levy a tax on the sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this state of tangible personal property after it has come to rest in this state and has become a part of the mass property of this state.”


author: PEARSON, Judge.

text:
    T. C. (Ted) WARD, Appellant, v. Charles L. GIBSON, Appellee.
    No. 76-160.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied July 29, 1976.

      Hal H. McCaghren, West Palm Beach, for appellant.
    Shutts & Bowen and Richard M. Leslie, Miami, for appellee.
    Before BARKDULL, C. J„ and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

The question raised on this interlocutory appeal is whether the defendant is bound to appear for deposition when service is made upon an attorney who has previously appeared in the trial court on his behalf for the purpose of testing the court’s jurisdiction over his person and who, thereafter, has appealed an order of that court denying his motion to dismiss. We hold that under such circumstances, the defendant is-not required to appear for deposition!

This appeal is-from an order denying defendant’s motion to quash service of a notice of taking deposition.. The appeal is permitted pursuant to FAR 4.2 as one relating to jurisdiction over the person. The circumstances arose when defendant’s attorney appeared in the cause and filed a motion to dismiss for lack of jurisdiction over the person of the defendant, pursuant to RCP 1.140. Thereafter, the plaintiff served upon this attorney a notice of taking defendant’s deposition. The trial court denied defendant’s motion to dismiss and the motion to quash service of notice of taking deposition. The defendant has appealed from both orders, with this particular appeal arising from the latter order.

The Florida Rules of Civil Procedure eliminate the former distinction between a general and a special appearance by providing that “[n]o defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.” See RCP 1.140. A defendant who moves to dismiss upon the ground that the court has not acquired jurisdiction over his person may maintain that position and proceed without waiving his defense either by interlocutory appeal or by pursuing the merits of the cause. In the present instance, the defendant chose to proceed by way of interlocutory appeal to test the propriety of the order which found that the trial court had jurisdiction over his person. We hold that inasmuch as the subject matter of such an interlocutory appeal is the very question of the trial court’s right to proceed with an exercise of jurisdiction over the defendant, the trial court has a right to proceed with the cause but not to destroy the subject matter of the appeal. See the rule in Mandrachia v. Ravenswood Marine, Inc., Fla.App. 1960, 118 So.2d 817, 821; and Strauser v. Strauser, Fla.App. 1974, 303 So.2d 663. The service upon the attorney of record of a notice to take the deposition of the defendant presupposes that the court has acquired jurisdiction of the defendant.

We recognize that a person not a party to this cause may be required to attend the taking- of his deposition, -but in such instances a separate service upon the witness is required. 'See -RCP 1.310(a). If the defendant here is considered a witness, then he cannot be required to attend the taking of a deposition until service of a subpoena requiring his attendance at the deposition is effectuated. If the defendant is considered a party to the cause for the purpose of taking his deposition, then the question on the appeal testing the jurisdiction over his person is decided a second time adversely to the defendant. Inasmuch as the jurisdiction of the trial court over the defendant is the subject matter of an interlocutory appeal, the trial court may not proceed in the cause as to such subject-matter until the appeal is heard and determined. Thursby v. Stewart, 103 Fla. 990, 138 So. 742, 751 (1931).

We, therefore, hold that the court erred in denying defendant’s motion to quash service upon his attorney of the notice of taking deposition prior to a determination of the interlocutory appeal challenging the jurisdiction of the trial court to proceed against the defendant in the cause.

Reversed.


text:
    Edwin G. GARNER and Kathryn N. Garner, his wife, Appellants, v. C. A. GIBEAUT, INC., a Florida Corporation, and Liberty Mutual Insurance Company, a Foreign Corporation authorized to do business in the State of Florida, Appellees.
    No. 75-2068.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1976.
    Rehearing Denied Jan. 11, 1977.
    Abraham B. Rosenberg, of Friedman & Rosenberg, Hollywood, for appellants.
    Frank E. Maloney, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   PER CURIAM.

On authority of Martel v. Gibeaut, Inc., 330 So.2d 493 (Fla. 4th DCA 1976), this case is AFFIRMED.

MAGER, C. J., ALDERMAN, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    KERR-McGEE CHEMICAL CORPORATION, a Delaware Corporation, Appellant, v. CHB FARMS, INC., a Florida Corporation, et al., Appellees.
    No. 75-1570.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1976.
    Rehearing Denied Jan. 11, 1977.

      Ralph W. Nimmons, Jr., Douglas H. Mor-ford, Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellant.
    Craig R. Wilson, Ruffolo & Wilson, West Palm Beach, for appellees.
   DOWNEY, Judge.

We have for review the propriety of the trial court’s refusal tb-direct a verdict on behalf of appellant, Kerr-McGee Chemical Corporation, against the appellees, Executors of the Estate of Charles H. Brady, Jr., in a suit appellant had filed against Brady (who died during the prosecution of this litigation), and others, based upon a contract of guaranty.

Appellant’s predecessor sold various farm products to CHB Farms, Inc., between July 1970 and April 1971. Appellees, Horton and Brady, the principal owners of that corporation, executed a guaranty agreement with appellant’s predecessor in which they unconditionally guaranteed payment of any indebtedness incurred by CHB to appellant’s predecessor and its successors or assigns. The agreement also provided that it could be modified only in writing signed by the parties and that it should remain in full force and effect until written notice of its termination was received by registered mail by appellant’s predecessor at its office in Jacksonville, Florida.

In June 1970 Brady sold his interest in CHB to Horton at a time when said corporation was indebted to appellant. After appellant learned from Horton that Brady was no longer connected with the corporation, appellant directed its salesman, Liven-good, to obtain (a) notes from CHB representing the current indebtedness and (b) an additional guaranty agreement from Horton and his wife. Livengood did as he was directed.

Eventually appellant sued CHB, Brady, and the Hortons in three counts: (a) on an open account, (b) on the guaranty agreement signed by Horton and Brady, and (c) the guaranty agreement signed by Mr. and Mrs. Horton.

At the close of the evidence appellant made a motion for a directed verdict against the Co-executors of Brady’s estate. The court denied the motions. The jury returned a verdict in favor of appellant as to Mr. and Mrs. Horton, but against appellant as to the Co-executors of Brady’s estate. Kerr-McGee appealed from the final judgment in favor of the Co-executors, contending that the court should have directed a verdict in its favor.

Initially, Brady had filed numerous affirmative defenses, including one asserting that Brady had been discharged and released from his guaranty agreement by virtue of appellant’s obtaining the additional guaranty agreement from Mr. and Mrs. Horton. That affirmative defense and others were stricken by the trial court. The only affirmative defenses not stricken asserted lack of consideration and lack of mental capacity. The appellees, Co-executors, concede that neither of the latter defenses was proven at trial. The trial judge instructed the jury:

“The issue for your determination on the claim of the Plaintiff Kerr-McGee against the Defendant Estate of Charles H. Brady, Jr., is whether the guaranty agreement of 1969 was terminated under the provisions of the agreement or by agreement of the parties.”

In our opinion the record is devoid of any evidence upon which to base even a reasonable inference that Brady was discharged or released from his guaranty agreement. Viewing the evidence most favorably in support of the verdict, we find absolutely no communication whatsoever between Brady and appellant. Appellees rely solely upon the following facts to support their position that there was sufficient evidence to permit the jury to find that Brady had been discharged from his obligation on the 1969 guaranty agreement.

After Brady severed his relationship with CHB, Horton advised Livengood, a salesman for appellant, of the severance. For-rester, appellant’s credit manager, sent a memo to Livengood and told him to obtain two promissory notes from CHB to represent their current debt to appellant. In addition, the memo directed Livengood to have both Mr. and Mrs. Horton sign an enclosed additional guaranty agreement. The memo concluded with the admonition, “as the Chinese say, no notes — no guaranty — no credit.” CHB signed the notes and the Hortons signs the guaranty agreement.

The Horton guaranty was silent as to any effect it might have on the prior Brady-Horton guaranty. Horton testified that, after Brady terminated his relationship with the corporation, Livengood came to Horton and brought the notes and additional guaranty “because the old one was no longer any good since Brady was no longer a member of the corporation . . . .” Forrester testified that he obtained the additional guaranty after Brady left the corporation “to strengthen the account.” He acknowledged that it was perhaps not legally correct. Appellant had received a notice of sorts that “Brady wanted out” and For-rester wanted to “get additional security by tying Mr. Horton more closely to the debt by bringing his wife into it.” We think the foregoing factors were insufficient to raise a jury question as to Brady’s liability as a guarantor and that the following factors demonstrate that the court should have directed a verdict in appellant’s favor as to Brady’s liability.

First, there was no evidence to show that the Horton guaranty was designed to take the place of the Brady-Horton guaranty. Because of this lack of evidence, the Horton guaranty was simply an additional security agreement for appellant’s protection, it did not relieve Brady of his obligation under the 1969 guaranty agreement. Bryant v. Food Mach. & Chem. Corp. Niagara Chem. Div., 130 So.2d 132 (Fla.3d DCA 1961); 38 Am.Jur.2d, Guaranty, § 85; 38 C.J.S. Guaranty § 35. Nor can the statement made by the salesman, Li-vengood, that the old agreement was no good because Brady was no longer a member of the corporation be taken as anything more than Livengood’s opinion as to the effect of Brady’s departure on the agreement. Moreover, the termination of Brady’s interest in the corporation did not also terminate his liability on the guaranty agreement. Franklin Nat. Bank of Long Island v. S & L Const. Corp., 16 A.D.2d 682, 227 N.Y.S.2d 577 (1962). Last, Brady did not attempt to terminate his liability by writing the appellant in accordance with the provisions of the agreement, so no other act by Brady could constitute a termination. Haynie v. First National Bank of Atlanta, 117 Ga.App. 766,162 S.E.2d 27 (1968); Manufacturers’ Finance Co. v. Rockwell, 278 Mass. 502, 180 N.E. 224 (1932).

We, therefore, hold it was error to deny appellant’s motion for directed verdict against the appellees, Fidelity National Bank of Pa. and Mary Catherine Brady, as Co-executors of the Estate of Charles H. Brady, Jr., deceased. Accordingly, the judgment for said appellees is reversed and the cause is remanded to the trial court with instructions to enter judgment for plaintiff-appellant, Kerr-McGee Chemical Corporation, and against the Co-executors of the Estate of Charles H. Brady, Jr., deceased for $13,141.15 (the amount due plaintiff of $14,230.15, less the set-off of $1,089.00).

REVERSED AND REMANDED.

ALDERMAN, J., and DANAHY, PAUL W., Jr., Associate Judge, concur.


author: NATHAN, Judge.

text:
    GANCEDO LUMBER COMPANY, INC., Appellant, v. FLAGSHIP FIRST NATIONAL BANK OF MIAMI BEACH, Appellee.
    No. 75-1794.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Rehearing Denied Dec. 23, 1976.
    Anthony Villaamil, Miami, for appellant.
    Therrel, Baisden, Peterson, Stanton, Still-man, Brown & Wood, Miami Beach, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by Gancedo Lumber Company, Inc., one of 44 defendants, from a summary final judgment in foreclosure in favor of plaintiff, Flagship First National Bank of Miami Beach, and against all defendants, on plaintiff’s complaint to foreclose a mortgage on property owned by the defendant, The Fountains at Fontainebleau Park, Inc.

The bank was the owner and holder of a mortgage and note executed by The Fountains for the construction of improvements on real property in Dade County. The Fountains defaulted on the mortgage and note and abandoned the property without completing the improvements. Gancedo had entered into an agreement with the contractor, Lastra Construction, Inc., also a defendant, for the furnishing of construction materials with respect to the improvement of the property. A substantial sum of money for materials delivered remained due and owing to Gancedo.

By way of answer and affirmative defenses to the complaint filed by the bank, Gancedo claimed an interest in and an equitable lien on the property for the balance due it, superior to that of the bank on the ground that the bank would be unjustly enriched. Gancedo further alleged that the bank had the opportunity and duty to supervise and correct any defaults by The Fountains by the terms of the note and mortgage, and that because of the bank’s negligent breach of its duty to correct and supervise, the bank caused the damages suffered by Gancedo, entitling Gancedo to an equitable lien superior to that held by the bank.

The record reflects that the contractor and The Fountains came in with an answer, affirmative defenses and counterclaim, asserting that the bank delayed funding, and ultimately stopped disbursements. Such breach of contract, they contended, resulted in their inability to complete the building. The bank filed a motion for summary judgment. It appears that between the time of the filing of the motion and the entry of judgment thereon, the case was settled between the plaintiff and all defendants except Gancedo. The trial judge entered a summary final judgment in favor of the bank, in which he determined that there were no genuine issues as to any material fact, that the bank held a lien superior to any claim or estate of any and all defendants and that the bank was entitled to judgment as a matter of law.

The question presented on this appeal is whether Gancedo, a subcontractor, is in a position to have an equitable lien where it is not in privity with the bank. The record contains affidavits and other testimony which indicate that the bank may have delayed construction draws and withheld funding because of disputed items without giving notification of its reasons, and that it stopped funding the construction loan entirely with a substantial amount undis-bursed causing the construction to come to a complete standstill. These allegations however, apply to and support the claims of The Fountains and the contractor, and not to Gancedo’s claim. Where Gancedo’s only contract is with the contractor, there is no privity with the bank, and therefore, the subcontractor cannot establish an equitable lien on the property superior to the bank’s lien.

In order to establish an equitable lien superior to the bank in this case, Gancedo must predicate relief upon some material misrepresentation, fraud, mistake or some factual circumstance tending to show that the bank (the lender) exercised “affirmative deception” on the subcontractor in order to keep it on the job. Merritt v. Unkefer, 223 So.2d 723 (Fla.1969); J. G. Plumbing Service, Inc., v. Coastal Mortgage Company, 329 So.2d 393 (Fla. 2nd DCA 1976). Since the record in this cause fails to demonstrate affirmative deception or other factors entitling Gancedo to relief, we affirm.

Affirmed.


author: FOGLE, HARRY W., Associate Judge.

text:
    Frank T. CORK and Henriette Cork, Appellants, v. Robert GABLE et al., Appellees.
    No. 75-581.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1976.
    Rehearing Denied Jan. 14, 1977.

      Patrick J. Murphy of Crabtree, Butler, Syprett & Meshad, P. A., Sarasota, for appellants.
    W. Robert Mann of Mann, Fay & Price, Bradenton, for appellees Larsen Brothers and United States Fidelity and Guaranty.
   FOGLE, HARRY W., Associate Judge.

This is an appeal from a summary judgment entered in favor of Larsen Brothers and its liability insurance carrier, United States Fidelity and Guaranty Company.

Appellants filed suit against appellees for damages for personal injuries sustained by Frank Cork. At the time of the accident on April 24, 1972, Cork was an employee of Royal Engineering Company. The record reflects that Royal was either a wholly owned subsidiary or a division of International Paper Company. Under an oral contract, International was selling cardboard shipping boxes to Richfield Packing, Inc. for use in Richfield’s tomato packing operation. In order to provide these boxes ready for use by Richfield, International arranged for Royal to fabricate, install and maintain box-folding equipment at Richfield’s plant.

Cork was employed by Royal to drive a truck carrying some of the equipment, including an air compressor, to the Richfield plant. The equipment was to be lifted into the second-story loft. International/Royal hired Larsen Brothers to furnish a crane and operator at an hourly rate. While Larsen’s employee, Gable, was operating the crane, which was in the process of moving the air compressor from the truck to the loft, the crane came in contact with the electrical wires, resulting in burns and other injuries to Cork. The court entered the summary judgment on the premise that Larsen was immune from suit because of the exclusive remedy provisions of the Florida Workmen’s Compensation Law.

The position of Larsen and USF&G is that they are immune from suit because International Paper was the statutory employer of both Cork and Gable under Sections 440.10 and 440.11, Florida Statutes (1971). They argue that International/Royal “undertook a general obligation . to furnish specific work, paper-board products and fabricating techniques” to Rich-field Packing in accordance with a negotiated agreement and subcontracted a part of its obligation to Larsen Brothers. We disagree.

Section 440.10(1) reads as follows:

“440.10 Liability for compensation “(1) Every employer coming within the provisions of this chapter, including any brought within the chapter by waiver of exclusion or of exemption, shall be liable for and shall secure the payment to his employees of the compensation payable under §§ 440.13, 440.15 and 440.16. In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.”

Section 440.11 provides that the liability of an employer prescribed in Section 440.10 shall be exclusive and in place of all other liability.

In Jones v. Florida Power Gorp., 72 So.2d 285 (Fla.1954), our Supreme Court held that before a party is entitled to the immunity provided by these sections there must be a contractual obligation on the part of the contractor, a portion of which he sublets to another. This rationale was also discussed by the Supreme Court in West v. Sampson, 142 So.2d 74 (Fla.1962). The First District Court of Appeal later said:

“ . . .In West v. Sampson our Supreme Court indicated, if it did not specifically so hold, that the type of contractual obligation by which one must be bound in order to be held a contractor within the meaning of the statute is the conventional type of contract entered into between a general contractor and an owner of property for whose benefit improvements are to be constructed or specified work is to be performed, by which the contractor agrees for a stated consideration to construct an improvement or perform the work in accordance with agreed plans and specifications.” State v. Luckie, 145 So.2d 239 (Fla. 1st DCA 1962).

The instant case is somewhat analogous to Florida Power and Light Company v. Brown, 274 So.2d 558 (Fla.3d DCA 1973). There, Pompano Fashion Square made arrangements to have Florida Power supply electricity to the shopping center’s power lines. In order to do this it was necessary for Florida Power to place some of its equipment in underground and above ground vaults on the shopping center’s property. Florida Power contracted with McClure Company to do some of the work necessary to install the Florida Power equipment and to make the electrical connections. In the course of this work one of McClure’s employees suffered electrical burns and brought suit against Florida Power. Reasoning that the “contract” between Florida Power and Fashion Square did not result in the type of contractual obligation contemplated by the statutes, the court held that Florida Power was not a “contractor” within the meaning of Sections 440.10 and 440.11.

In the same sense, we do not believe that International/Royal occupied the position of a general contractor to Richfield. The essence of the transaction was the sale of cardboard boxes. No doubt because of the economics involved, it was advisable for these boxes to be folded at the Richfield plant. While this necessarily entailed having box-folding machinery installed at the plant, the installation was only incidental to the sale of the boxes to Richfield. Since International was not a general contractor under the statutes, it was not the statutory employer of Cork and Gable. Therefore, even though Cork had received workmen’s compensation benefits, the appellants were entitled to sue Larsen Brothers as a third-party tortfeasor.

REVERSED.

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


author: BOARDMAN, Judge.

text:
    Kenneth CALDWELL, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-1556, 75-1557, and 75-1558.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1976.
    Rehearing Denied Jan. 11, 1977.
    Jack O. Johnson, Public Defender, Bar-tow, Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant appeals the judgments and sentences for involuntary sexual battery (Case No. 75-1558), robbery (Case No. 75-1557), and breaking and entering while armed with intent to commit a felony (Case No. 75-1556). We have carefully considered the several points raised by appellant and find that only one is meritorious.

The jury found appellant guilty as charged, and he was sentenced to three consecutive 100-year terms. Prior to pronouncing sentence the judge said

while ya’ll were at lunch the jury sent out a question as to the difference between sexual battery and involuntary sexual battery, and I just sent word back that there was no difference. Apparently the terms are interplayed in the verdicts.

The judge’s statement is the only evidence in the record of this incident. We are unable to determine what additional instructions the jury actually received. The statement indicates that the judge may not have instructed the jury himself but relayed the instructions to the jury through a third party. Since it is uncertain what the jurors were told we cannot view this procedural violation as being harmless error. Inquiries from the jury must be answered in open court after notice to both the defendant’s counsel and the prosecution. Fla.R.Crim.P. 3.410. No one is permitted to communicate with the jurors without permission from the court given in open court in the presence of the defendant or his counsel. Section 918.-07, Florida Statutes.

Therefore we reverse the judgment on involuntary sexual battery and remand for a new trial. Appellant has not alleged that the court’s manner of responding to a question concerning the involuntary sexual battery charge in any way tainted the jury verdict on the other two counts, and we are unable to discern from our independent review of the record any prejudice to the other counts. Accordingly we affirm the judgments and sentences in Case Nos. 75-1556 and 75-1557.

AFFIRMED in part, and REVERSED and REMANDED in part.

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

      . Randolph v. State, 336 So.2d 673 (Fla. 2d DCA 1976); Slinsky v. State, 232 So.2d 451 (Fla. 4th DCA 1970); Holzapfel v. State, 120 So.2d 195 (Fla. 3d DCA 1960). The decision in Ennis v. State, 300 So.2d 325 (Fla. 1st DCA 1974) (holding a violation of Fla.R.Crim.P. 3.410 harmless) is distinguishable in that the court there found no uncertainty as to what the jury was told.


text:
    In re the ESTATE of Sarah SHAW, Deceased. TEMPLE NER TAMID, Creditor, Appellant, v. Marshall H. ADER, Personal Representative, et al., Appellees.
    Nos. 76-802 and 76-803.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1976.

      Stanley H. Apte, Miami Beach, for appellant.
    Joseph Teichman, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, Temple Ner Tamid, seeks review of a protective order and order granting appellee personal representative’s motion to vacate order to produce documents wherein the trial judge determined that the Temple was not an interested party and, therefore, not entitled to its requests for discovery.

Sarah Shaw died testate on February 21, 1975 and estate proceedings were commenced on March 17, at which time Marshall Ader was appointed personal representative. The bulk of the estate consisted of cash and bonds listed as being given or loaned to Sarah’s sons, Graham and Robert. On June 27 Temple Ner Tamid, as creditor, filed a claim for $29,500 against the estate. This claim was objected to and the Temple filed suit in the civil division of the circuit court, which suit is presently pending.

The Temple petitioned the probate court for an accounting of the assets of the estate and for production of documents and to otherwise cause the personal representative to act to amass the assets of the estate and reach the beneficiaries for estate assets on the basis that the personal representative was improperly administering the estate so as to reduce the assets in order that no funds would be available to pay creditors, and that he was representing and promoting the interest of the beneficiaries, Graham and Robert, to the detriment of the creditors. The probate court on December 3 entered an order granting the petition. Thereafter the personal representative moved to set aside the December 3 order on the grounds that the Temple is not contemplated by law as an interested party. Graham and Robert Shaw also filed motions for protective orders and objected to discovery for the same reason. After hearing this matter, the probate judge set aside the December 3 order and found the Temple to be a contingent creditor and, therefore, not entitled to the relief sought. The judge further held that to allow a contingent claimant to obtain such information would provide a means for it to obtain information it cannot obtain in its pending lawsuit in the civil division of the circuit court, which is a lawsuit asking for judgment for the very $29,500 which has been objected to by the estate. We affirm.

A contingent claim such as that of appellant against an estate is one where the liability depends upon some future event which may or may not happen (i. e. in the case sub judice, whether appellant prevails in its suit in the civil division) and, which, therefore, makes it wholly uncertain whether there ever will be liability. See Annot., 94 A.L.R. 1155 (1935).

The Temple’s status is presently that of only a contingent judgment creditor and its requests for an accounting and amassing of assets, etc. before an adjudication on the merits in its suit in the civil division is premature. See David v. Tansill, 297 So.2d 84 (Fla. 4th DCA 1974). We find that the probate judge was eminently correct in his determination that appellant is not an interested party for the purpose of the requested discovery proceedings before it achieves the status of judgment creditor.

Affirmed.