author: ROBERTS, Justice.

text:
    Nicholas NARDONE, an infant by his father and next friend Nicholas H. Nardone, and Nicholas H. Nardone, Individually, Appellants, v. David H. REYNOLDS et al., Appellees.
    No. 47109.
    Supreme Court of Florida.
    May 19, 1976.

      Abraham H. Shukat, Miami Beach, Alfred S. Julien and David Jaroslawicz, New York City, for appellants.
    S. O. Carson and Edward J. Atkins, of Walton, Lantaff, Schroeder, Carson & Wahl, James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Henry Burnett of Fowler, White, Burnett, Hurley, Banick & Knight, and Steven R. Berger of Carey, Dwyer, Austin, Cole & Selwood, Miami, for appellees.
   ROBERTS, Justice.

Pursuant to Rule 4.61, Florida Appellate Rules and Section 25.031, Florida Statutes, this cause is before us on certificate from the United States Court of Appeals, Fifth Circuit, in an appeal from the decision of the United States District Court, Southern District of Florida, which held that the malpractice action instituted by appellants in 1971, was barred by the Statute Limitations and, accordingly, granted the motions for summary judgments of the sev-era^ defendants-appellees. The following questions have been certified to us based upon the following recited facts:

“j. jn a me<jjcap malpractice case does the iod of limitation (F.S.A. 95.11(4)) commence:

(a) As to the parents and legal guardians of the incompetent minor in their own right
(b) As to the parents and legal guardians of the incompetent minor as next friends in behalf of the minor
(c) As to the incompetent minor in his own right when the parents and legal guardians of the incompetent minor have (i) knowledge of the physical condition and the drastic change therein during the course of medical treatment, but (ii) do not then have (or are not charged with having) knowledge that such physical-mental condition was caused in whole or in part by acts or non-acts of the alleged malpractition-ers?

II. Is knowledge of the contents of the medical doctor, hospital, etc. records concerning the incompetent minor patient which are of a character as to be obtainable by, or available to, the patient (or guardian) but the contents of which are actually not known, imputed to:

(a) The parents and legal guardians of the incompetent minor in their own right ?
(b) The parents and legal guardians of the incompetent minor as next friends in behalf of the minor ?
(c) The incompetent minor in his own right ?

III. Under the Florida doctrine of tolling limitations by fraudulent concealment, where there is knowledge by the parents of the incompetent minor of the physical-mental condition but not the cause as set forth in I above, does non-disclosure by one or more of the alleged malpracti-tioners of possible causes of the such condition unaccompanied by mispresentation toll the statute:

(a) as to all of the alleged malprac-titioners ?
(b) as to individual alleged malprac-titioners who did not participate in the asserted ‘concealment’ ?
IV. Where there is knowledge by the parents as set out in I and III above but no request by them for such information did the alleged malpractitioners, each considered individually, have:
(a) a duty to make disclosure to the parents of the records and the essential, material significant facts relating to possible or likely causes of the minor patient’s condition and change therein ?
(b) If the answer to (a) is ‘yes’ what is the consequence if any on the statute of limitations?”

Following an evaluation by Dr. Chiles, an eye specialist, Nicholas Nardone, age 13, who had been experiencing difficulty with coordination, blurred vision, dyplopia and headaches, was admitted to Jackson Memorial Hospital in January, 1965, where he underwent four brain operations in January, February, and March, and various diagnostic procedures. After initial evaluation by Dr. Chiles, he was transferred to the care of appellee, Dr. Reynolds, who, after examination of Nicholas, performed an exploratory craniotomy on January 26, 1965, and finding an obstruction of the syl-vius aqueduct, inserted a Torkildsen tube (shunt), designed to by-pass the aqueduct and to permit the flow of spinal fluid between the ventricles of the child’s brain into the right side of the child’s head. Following this surgery and insertion of the tube for a period of two weeks, Nicholas suffered from Tachypnea, tachycardia, respiration difficulty, increased intracranial pressure, high temperatures, symptoms of sub-dural hemorrhaging, symptoms of hypoxia, bilateral facial paresis, restlessness, irritability, abnormal protein level, “white blood cell count level, blood in the cerebro-spinal fluid, periods of increased blood pressure and tremors.” In Dr. Reynold’s absence, the hospital called in Dr. Sheffel to assist in observation of the child’s postoperative progress. On February 12, 1965, Dr. Sheffel replaced the Torkildsen tube installed by Dr. Reynolds with a ventriculo-atrial shunt, an operation performed without the presence of Dr. Reynolds, and during this operation, evacuated a copious amount of Xantho chronic fluid beneath the subdural membrane which had been exerting pressure on the infant’s brain. Following this procedure, there was an encouraging, marked, and steadily progressive improvement in his condition. His progress was such that on February 22, his birthday, his mother was told that he would be able to go home in two weeks when he could have his birthday party. The shunt inserted by Dr. Sheffel was operating properly at this time.

Although apparently unclear from the record, briefs and oral argument, Reynolds, Sheffel or both permitted a pantopaque ven-triculogram, a diagnostic procedure wherein dye is introduced into the ventricles of the brain, to be performed on the child on February 25, 1965, which procedure, appellants contend is contrary to proper procedure when there is a shunt, and which procedure appellants contend was negligently performed. None of the Appellees-defendants admit to performing this procedure although the hospital record on the report of radiological consultation dated February 25, 1965, is signed by defendant Gargano, a radiologist employed by Jackson Memorial Hospital. The hospital records pertaining to the pantopaque ventriculogram notes that some of the pantopaque entered the shunt tube and veins of Nicholas’ neck. Appellants contend that Dr. Gargano conceded that retention of the dye in the shunt rendered it non-functional and Dr. Sheffel testified that one of the objectives of maintenance of a shunt is to see that it does not become obstructed. After the PPV procedure, the child’s condition worsened.

From February 25 to March 6, 1965, he exhibited symptoms of subdural pressure, suffered from constant headaches, was difficult to arouse, stopped talking, was drowsy and incoherent, had spiking temperatures and experienced projectile vomiting. On March 7, he could not be aroused, and in an effort to relieve brain pressure, Dr. Sheffel performed an emergency operation evacuating 250-300 ccs of yellow subdural fluid and, at this time, clamped off the shunt. After the operation Nicholas remained in a comatose state. Further surgery was performed by Dr. Reynolds on March 15, 1965, following which the patient did not improve but rather remained in a vegetative condition.

Upon discharge from the hospital in July 1965, the child’s condition was comatose, totally blind. He had suffered irreversible brain damage.

The parents were told and knew that this was the infant’s condition prior to his discharge — totally blind, no longer able to walk and beyond help or hope of recovery— although they were not specifically told of the pantopaque ventriculogram or the possible causes of the son’s ultimate condition.

The parents testified that they were not told that the PPV would be administered, that they never heard the term, and that no one at the hospital told them that it had been performed; and testified that as to the cause of the boy’s condition, they were told that these things happen. None of the physicians sought to disclose the course of treatment to the parents although apparently not requested by them to do so.

After discharge, Nicholas was taken to the family’s temporary home in Hollywood, Florida, where he was under the care of Dr. Dobbrunz (not a party to the suit). Following discharge from the hospital in July, 1965, none of the defendants had any further contact with the child.

With one exception, to be explained below, no request for records, charts, or information pertaining to the child’s hospitalization was ever directed to any of the defendants. Records were available from the hospital at all times upon request.

In September, 1965, Nicholas was admitted to the Columbia Presbyterian Hospital, New York (hereinafter referred to as Columbia) for evaluation where he remained under the care of neuro-surgeons until discharge on October 19, 1965. The physicians at Columbia requested the hospital record from Jackson Memorial Hospital. Appellants contend that Jackson Memorial sent excerpts of the record consisting of the discharge summary, operative reports of January 26th, and March 15, 1965, a radiological report dated November 24, 1965, which contained references to a January 21, 1965, skull film, a neuro-encephalo-gram dated January 26, 1965, and several anteriograms, and contend that the records not sent to Columbia included records of February 12, 1965, and March 7, 1965, relating to surgery performed by Dr. Sheffel, radiological consultations including the PPV, the doctors’ orders, progress records, and nurses’ notes.

Upon examination and consideration of the supplied records, Dr. Vicale of Columbia stated in his final diagnosis and report, as follows:

“Patient in decerebrate state on admission characterized by bilateral hemiplegia with typical tonic decerebrate spasms of the limbs and trunk. On admission both pupils were highly dilated and fixed and both optic nerve heads showed profound secondary optic atrophy. Patient had been in this state since mid March. This condition developed in the early part of March as a result of bilateral subdural hematomas that arose as a complication of a ventriculoatrial shunt done on 2/12/65 at the Jackson Memorial Hospital for the relief of obstructive hydrocephalus owing to stenosis of the cerebral aqueduct (probably of ten years duration at least).
“All of the record, all of the films of the various x-ray studies carried out have been reviewed by Dr. Ernest Wood, Dr. Lester Mount, and myself and it is certain that the brain damage responsible for the decerebrate state is irreversible and that he has bilateral total blindness. The family has been advised against subjecting him to any further diagnostic or therapeutic procedures and to transfer him to a nursing home for further care.
“Final Diagnosis: Decerebrate state— mesencephalic and decorticate types combined — secondary to uncal herniation from bilateral subdural hematomas secondary to ventriculoatrial shunt for obstructive hydrocephalus owing to aqueduct stenosis (of 10 years or more duration).”

At all times, the records of Columbia were available to appellants from either Columbia or Dr. Coceo to whom a copy was sent in October, 1965, but appellants made no request for the same.

In March 1969, Mrs. Nardone called Dr. Reynolds by long distance telephone from their permanent home in Kearny, New Jersey, and asked him to send “the records” for use by a rehabilitation center. Dr. Reynolds sent records including the radiological report of the pantopaque ventricu-logram. Mrs. Nardone gave the material to her husband who testified that “the institute is located in Philadelphia and I didn’t think it merited any purpose in him going there,” and that he “just kept’’ the records and finally brought them over to my lawyers in 1971.

Dr. Coceo visited the child in Jackson Memorial Hospital once in January 1965 and had access to such of the medical charts as he desired to see. He never was refused any records. In October, 1969, Dr. Coceo, referring to the Vicale report commented to Mr. Nardone that “it was unfortunate the way things worked out in the (Jackson Memorial) hospital”.

The boy’s condition never changed or improved after his discharge from Jackson Memorial Hospital in July 1965.

The evidence is without dispute that the plaintiffs retained only Dr. Reynolds to diagnose and/or treat the minor. Dr. Shef-fel was a professor of neurosurgery at the University of Miami and member of the staff at Jackson Memorial Hospital. By virtue of that position, he came into contact with the patient. During the course of the boy’s hospitalization, Dr. Sheffel performed the second and third of four surgical procedures. The fourth operation was a 3 :00 a. m. emergency performed by Dr. Sheffel when called to the hospital by a resident. In both cases, Dr. Reynolds was absent or unavailable.

Either Dr. Sheffel or Dr. Reynolds or both referred the parents to a Dr. Dobbrunz in Hollywood, Florida, upon the boy’s discharge from the hospital and there was no relationship or contact between Dr. Sheffel and the plaintiffs at any time after the hospitalization until the suit was filed. The original complaint was filed in May 1971, but Dr. Sheffel was not named in that complaint and was not added as a party defendant until nearly one-half year later.

The depositions of Mr. and Mrs. Nardone establish, without dispute, that they never heard the name Dr. Gargano until the day their depositions were taken on November 11, 1971. They also testified that they never met or corresponded with him at any time. Furthermore, there was never any communication with Dr. Gargano through any other person, and there was total lack of contact with him to elicit any information or to make any requests of him. Dr. Gargano’s testimony, that he has never performed a ventriculogram or put pantopaque in the brain is undisputed.

This action was commenced by the filing of the complaint in May 1971, more than five years after the infant’s discharge from Jackson Memorial Hospital when his condition was as described above.

This action was brought in the United States District Court, Southern District of Florida, by Nicholas Nardone, an infant by his father and next friend Nicholas H. Nar-done and Nicholas H. Nardone, individually. In substance it charged malpractice and concealment against Dr. David Reynolds and Dr. Donald Sheffel, as the surgeons performing the surgical operation and diagnostic procedures, Dr. Freddie Gar-gano, as radiologist, and Dade County, Florida, as operator of Jackson Memorial Hospital. Their respective insurers were also named as defendants.

All of the defendants affirmatively pleaded the statute of limitations and, after several depositions were taken, moved for summary judgment on that basis.

At a preliminary Pre-Trial conference held March 1, 1972, the Court required the plaintiffs within ten days to file a specific factual statement of the specific charges against each individual defendant, including the alleged acts of concealment. Defendants contend that plaintiffs’ response made no reference to any act of concealment on the part of any defendant-appellee.

An evidentiary hearing on the question of fraudulent concealment and the application or non-application or the tolling of the statute of limitations was likewise held for the express purpose of receiving evidence in opposition to the pending motions for Summary Judgment. Except for introducing exhibits and the pre-trial depositions, no further testimony was submitted by the plaintiffs.

Thereafter, the District Judge entered the final Summary Judgment sustaining the defense of the statute of limitations.

The United States District Court, Southern District of Florida, concluded that this action was barred by the statute of limitations since the injuries had occurred, and their existence was apparent and obvious, in 1965, and at all times thereafter; that all relationships between the plaintiffs and their son and the several defendants-appel-lees were terminated in 1965; that there was not and by the nature of things, there could not have been a concealment of the infant’s condition by any of the defendants because his condition was patent, obvious, and known to have culminated during the period in which the child was hospitalized; that there was no fraudulent concealment of any known cause of the infant’s condition; and that plaintiffs seek now to make use of information that at all times has been available to them had they used'due diligence. The District Judge found that, assuming arguendo the relevancy of information relating to the cause as opposed to the condition, the record is devoid of any concealment by any defendant from the plaintiffs of information or facts relating to the causes of such condition as alleged.

On appeal of the summary judgment, the United States Circuit Court of Appeals, Fifth Circuit, determining that the propositions posited by the appeal present questions of gravest public policy to Florida, has certified the above delineated questions to us for our resolution.

Initially as appears from the record, the findings of the United States District Court, and statement of facts in the certificate before us, we reiterate that although the infant’s condition wavered during hospitalization, before discharge, he was totally blind and had suffered irreversible brain damage. His parents were told and knew that this was their son’s condition prior to his discharge from the hospital in July, ■1965. Furthermore, Dr. Vicale’s report and final diagnosis dated October, 1965, explained the irreversible nature of the brain damage and described the child’s condition in detail. Unquestionably, the appellants-plaintiffs below were aware of the extent of the injury in 1965. Dr. Vicale’s report was readily available at all times. But suit' was not commenced until more than five years after the child’s discharge from the hospital. At the time of commencement of this suit by filing of a complaint in May 1971, the applicable statute of limitations, Section 95.11 (4), provided that this action be brought within four years.

Appellants request that this Court adopt the view that the statute of limitations did not commence to run until they became aware of the negligence of the physicians and hospital. Previously, this Court has held that the statute of limitations in a malpractice suit commences either when the plaintiff has notice of the negligent act giving rise to the cause of action or when the plaintiff has notice of the physical injury which is the consequence of the negligent act. City of Miami v. Brooks, 70 So.2d 306 (Fla.1954). Sub judice, the plaintiffs were on actual notice of the decerebrate state of their son, that he had suffered irreversible brain damage, and in accordance with Brooks, supra, the statute of limitations began to run when the injury was known. Plaintiff in Brooks, supra, while a patient at Jackson Memorial Hospital in April, 1944, received an overdose of x-ray therapy treatment for the removal of plantar warts from her foot. However, it was not until August, 1949, that she was advised and first became aware that her heel had been injured by the x-ray therapy treatment received in 1944. No prior indication of the injury was evidenced before 1949, when a sore developed which turned into an ulcer, but in fact the heel gave every appearance of being healthy and in good condition prior thereto. Recognizing that at the time of the application of the x-ray treatment, there was nothing to pxit the plaintiff on notice of any probable or even possible irt-jury, this Court espoused the general rule to be:

“. . . that where an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. 34 Am.Jur. 126, Sec. 160, Limitation of Actions.
“This rule was applied by this Court in the case of Cristiana [Cristiani] v. City of Sarasota, 65 So.2d 878, which case is relied upon strongly by the appellant. In that case a servant of the city, acting within the scope of his employment, carelessly and negligently backed a truck of the city against the tricycle of a minor child, causing him to be thrown to the ground, sustaining violent blows on his head and body, which resulted in blindness of the right eye and which was not discovered until about eighteen months thereafter. The suit was held to have been barred by the statute of limitations, F.S. 95.24, F.S.A., which provides:
“ ‘No action shall be brought against any city or village for any negligent or wrongful injury or damage to person or property unless brought within twelve months from the time of the injury or damages.’
“The Court held the running of the statute not to be postponed, even though the injury did not materialize and was not discovered until later. There is a distinction, however, between notice of the negligent act and notice of its consequences. In the case of Cristiani v. City of Sarasota, while there was no notice of the consequences of the act until eighteen months later, nevertheless, there was notice of the act at the time of the accident and of a right of a cause of action, so that the statute began to run even though notice of its consequences did not materialize until later.”

In Buck v. Mouradian, 100 So.2d 70 (Fla.App.3, 1958), cert. den. Fla., 104 So.2d 592, wherein plaintiff brought a malpractice action against a physician for injuries allegedly caused by the administering of x-ray treatments, the court concluded:

“From an examination of the pleadings, interrogatories and appellant’s admissions, it conclusively appears that she was aware of her injury in 1951 shortly after the treatments administered by the appellee. Her admissions and responses to the appellee’s requests affirmatively established the knowledge on her part of her injury. It is true that the appellant has complained of the appellee’s fraudulent concealment of his negligent act that caused the injury and the true extent of such injury, but nowhere have we been able to find that she was without knowledge of her injury at the time, or shortly thereafter, of the administration of the x-ray treatments. On the contrary, her admissions establish her knowledge.”

This Court in Cristiani v. City of Sarasota, 65 So.2d 878, 879 (Fla.1953), a personal injury action based on the wrongful or negligent act of another, relied on in Brooks, supra, and Buck, supra, opined:

“The general rule seems to be that actions for personal injury based on the wrongful or negligent act of another accrue at the time oí the injury and that the statute of limitations begins to run at the same time. The running of the statute is not postponed even though the injury may not materialize or be discovered till later.”

The severe nature of Nicholas’ injury was readily apparent in 1965 before his discharge and was reaffirmed by Dr. Vicale in October, 1965, who stated in his report that the family has been advised against subjecting him to any further diagnostic or therapeutic procedures and to transfer him to a nursing home for further care. We agree with the United States District Court that since in 1965 the nature of the child’s condition was obvious and known to the plaintiffs, it was then that the cause of action accrued and the statute of limitations commenced to run as to the parents and legal guardians of the incompetent minor in their own right, as to the parents and legal guardians of the minor as next friends in behalf of the minor, and as to the incompetent minor in his own behalf. Readily evidenced by the record, there could be no concealment and was none of the infant’s obvious condition. Cf. Buck v. Mouradian, supra, Slaughter v. Tyler, 126 Fla. 515, 171 So. 321 (1936), Gasparro v. Horner, 245 So.2d 901 (Fla.App.4, 1971), Manning v. Serrano, 97 So.2d 688 (Fla.1957), Brown, et al. v. United States, 353 F.2d 578 (9th Cir. 1965).

With the knowledge of the severity of their son’s resultant condition, the parents through the exercise of reasonable diligence were on notice of the possible invasion of their legal rights. Notice of the consequences of the physician’s acts, assuming arguendo that they were negligent, occurred in 1965. The District Court of Appeal in Vilord v. Jenkins, 226 So.2d 245 (Fla.App.2, 1969), a malpractice action for the negligent performance of a female sterilization procedure wherein the plaintiff became pregnant five years later, held:

“As to the negligence count, the law in this state is that a statute of limitations begins to run when there has been notice of invasion of the legal rights of the plaintiff, i. e., when he has been put on notice of his right of action. In City of Miami v. Brooks, the plaintiff underwent x-ray therapy which, it was said, was negligently administered in 1944. It wasn’t until 1949 that resulting x-ray burns became apparent for the first time. Recognizing the general rule that when there is notice of the negligent act the statute begins to run even if its full consequences are not known, the court went further and held that even though there is notice of the act itself, if its negligent character cannot become known until its consequences become apparent, then the statute does not begin to run until notice of the consequences.” (e.s.)

In response to the second question, under the peculiar facts of this case, we find that knowledge of the medical, doctor, hospital, etc. records concerning the incompetent minor patient which are of a character as to be obtainable by, or available to, the patient but the contents of which are not known should be imputed to the parents, etc. The following passage from C.J.S. pertaining to ignorance and concealment of causes of action was quoted with approval by this Court in Franklin Life Ins. Co. v. Tharpe, 131 Fla. 213, 179 So. 406 (1938), and subsequently cited by the District Court of Appeal in Houston, et al. v. Florida Georgia Television Company, 192 So.2d 540 (Fla.App.1, 1966):

“Ignorance and Concealment of Causes of Action — a. Ignorance in General. Omitting at this place any consideration of the effect of a mistake, trust relations in general, or laches, and except where there has been secret fraud or fraudulent concealment on the part of the defendant, the rule is generally established that mere ignorance of the facts which constitute the cause of action will not postpone the operation of the statute of limitations, but the statutes will run from the time the cause of action first accrues notwithstanding such ignorance. The reason of the rule seems to be that in such cases ignorance is the result of want of diligence and the party cannot thus take advantage of his own fault.”

The means of knowledge are the same as knowledge itself. Scroggin Farms Corp. v. McFadden, 165 F.2d 10, 18 (8th Cir. 1948). Relative to the doctrine of federal fraudulent concealment although pertinent here to the issue of imputation of knowledge of the contents of the accessible medical reports, the United States Court of Appeals, Seventh Circuit, opined in Morgan v. Koch, et al., 419 F.2d 993 (7th Cir. 1969), that,

“In addition, the statute is tolled only for those who remained ignorant through no fault of their own. Unawareness of facts or law, alone, does not justify suspending the operation of the statute. Tinkoff v. United States, 211 F.2d 890 (7th Cir. 1954); Laundry Equipment Sales Corp. v. Borg-Warner Corp., 334 F.2d 788 (7th Cir. 1964). The party seeking protection under this doctrine must have exercised reasonable care and diligence in seeking to learn the facts which would disclose fraud. Cf. United States v. Diamond Coal & Coke Co., 255 U.S. 323, 41 S.Ct. 335, 65 L.Ed. 660; Tobacco and Allied Stocks, Inc. v. Transamerica Corp., 244 F.2d 902 (3d Cir. 1957). The plaintiff’s indifference to the true facts of the case is not enough to toll the statute. Under the circumstances of this case and considering the relationship between the various parties, the nature of the fraud alleged, and the subsequent actions of defendants, we agree with the district court that plaintiff failed to show due diligence on her part.”

Cf. 21 Fla.Jur., Limitation of Actions, Section 37, stating in part, “But mere ignorance of the facts which constitute the cause of action will not postpone the operation of the statute of limitations, where such ignorance is due to want of diligence; a party cannot thus take advantage of his own fault.”

Finally, the United States Circuit Court inquires as to whether, under the doctrine of tolling the statute of limitations, where there is knowledge by the parents of their son’s physical-mental condition but not the cause, nondisclosure of the cause unaccompanied by misrepresentation tolls the statute and whether the alleged mal-practitioners had a duty to disclose the possible causes of the injury where there is no request by the parents for such information and where the parents are fully cognizant of the extent of the injuries. It is undisputed that defendants did not engage in conduct of any nature which had the effect of hindering plaintiff from consulting other physicians, or the hospital records or from becoming aware of the facts so as to prevent them from bringing an action. There was no affirmative misrepresentation to the appellants as to the cause of the infant’s condition. Dr. Sheffel, citing Kauchick v. Williams, 435 S.W.2d342 (Mo.1968), posits that concealment is only that which relates to facts known to the defendant as opposed to mere conjecture or opinion. In Kauchick v. Williams, supra, a malpractice action, the court determined:

“A necessary predicate of the duty under such rule is knowledge on the part of the physician 'of the fact of the wrong done to the patient.’ 80 A.L.R.2d 407. See Brown v. Grinstead, 212 Mo.App. 533, 252 S.W. 973, 974[1]; Carter v. Harlan Hospital Ass’n., Inc., 265 Ky. 452, 97 S.W.2d 9, 10; Albert v. Sherman, 167 Tenn. 133, 67 S.W.2d 140, 141[1]; Maloney v. Brackett, 275 Mass. 479, 176 N.E. 604, 607. Here, there was no evidence that Dr. Mattison was aware of matters which would require him to make a disclosure to Mrs. Kauchick. The negligence charged against him was his erroneous computation from the X-rays of the intertuberous space. However, nothing further was produced other than his X-ray reports and the subsequent measurements by Dr. McNalley which disclosed the error in Dr. Mattison’s reading. Mrs. Kauchick testified that X-rays were taken but made no mention of Dr. Mattison by name. He, in fact, testified that he never saw Mrs. Kauchick; that he merely examined and reported upon the X-ray pictures made by another physician at the hospital. Mrs. Kauchick would infer that Dr. Mattison became aware of his error because ‘he was called upon to take X-rays of Mrs. Kauchick after delivery by Caesarean section * * *.’ The evidence did not show that Dr. Mattison took such X-rays. In any event, Dr. Mattison’s knowledge of the Caesarean would not require the inference that his X-ray computation had been erroneous and that he had knowledge thereof. We do not consider the circumstances relied upon sufficient to permit a finding that Dr. Mattison had the requisite knowledge which would impose upon him a duty to speak.
“Mrs. Kauchick testified that she did talk with Dr. Williams following the delivery of the child. However, we do not find support for plaintiffs’ conclusion that Dr. Williams lulled Mrs. Kauchick ‘into a fictitious sense of security that she would have no difficulties from the Caesarean section with her future pregnancies.’ All that Mrs. Kauchick testified was that Dr. Williams told her that she could have other children. Mrs. Kauchick stated: ‘I don’t remember him telling me that I would have to have a Caesarean section again * * *. I didn’t believe I would have to have a Caesarean section again. I didn’t know one way or the other, he didn’t say, I don’t believe I asked him that.’ The claim of fraudulent concealment against Dr. Williams is based on his failure to advise Mrs. Kauchick as to what made the Caesarean operation necessary and his statement, as testified to by Mrs. Kauchick, that he did not know what caused her difficulty.
“Again the difficulty with Mrs. Kau-chick’s position is that there is no evidence to support the finding that Dr. Williams did know what actually caused her difficulty. He testified that he relied upon the X-ray report that her pelvic measurement would permit vaginal delivery. Mrs. Kauchick’s expert medical testimony might support a finding that Dr. Williams’s reliance upon the X-rays and his failure to make a clinical measurement were not in accord with the generally accepted medical practice in the community at the time. However, that would not establish that Dr. Williams was aware that he had been negligent and that, in telling Mrs. Kauchick that he did not know what caused her difficulty, he was endeavoring to conceal his negligence from her in order to avoid an action for malpractice.”

Sub judice, no fraudulent means to conceal were utilized by appellees, and so the question becomes whether non-disclosure by the alleged practitioners of possible causes of the infant’s decerebrate condition constitutes concealment sufficient to toll the statute, and whether there was a duty to disclose the possible or likely causes where there was no request for such information. The philosophy behind the exception to the statute of limitations of fraudulent concealment and the tolling of the statute if such concealment exists, is courts will not protect defendants who are directly responsible for the delays of filing because of their own willful acts. The purposes of the statutes of limitations are to protect defendants against unusually long delays in filing of lawsuits and to prevent unexpected enforcement of stale claims concerning which interested persons have been thrown off guard for want of reasonable prosecution.

“As a statute of repose, they afford parties needed protection against the necessity of defending claims which, because of their antiquity, would place the defendant at a grave disadvantage. In such cases how resolutely unfair it would be to award one who has willftilly or carelessly slept on his legal rights an opportunity to enforce an unfresh claim against a party who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses. Indeed, in such circumstances, the quest for truth might elude even the wisest court. The statutes are predicated on the reasonable and fair presumption that valid claims which are not usually left to gather dust or remain dormant for long periods of time. Riddlesbarger v. Hartford Ins. Co., 74 U.S. (7 Wall.) 386, 19 L.Ed. 257; 1 Wood, Limitations of Actions, supra § 4; Spath v. Morrow, supra. To those who are unduly tardy in enforcing their known rights, the statute of limitations operates to extinguish the remedies; in effect, their right ceases to create a legal obligation and in lieu thereof a moral obligation may arise in the aid of which courts will not lend their assistance. Cf. 34 Am.Jur., ‘Limitation of Actions,’ § 11, p. 20.” (e.s.) Wilkinson v. Harrington, R.I., 243 A.2d 745 at 752 (1968).

Generally, two elements are required before the equitable principle of fraudulent concealment will be utilized to toll the statute of limitations, to-wit: plaintiff must show both successful concealment of the cause of action and fraudulent means to achive that concealment. Cf. Prather v. Neva Paperbacks, Inc., 446 F.2d 338 (5th Cir., 1971), Crummer Company, et al. v. DuPont, 255 F.2d 425 (5th Cir., 1958), 21 Fla.Jur., Limitation of Actions, Section 62. Although it has been held that where the confidential fiduciary relationship of physician-patient exists, there is a duty to disclose material information between the parties, the majority of cases dealing with this subject relate to the duty to disclose to the patient the fact of the injury done to him. Cf. Hudson v. Moore, 239 Ala. 130 (1940), 194 So. 147; Burton v. Tribble, 189 Ark. 58 (1934), 70 S.W.2d 503; Tabor v. Clifton, 63 Ga.App. 768 (1940), 12 S.E.2d 137; Guy v. Schuldt, 236 Ind. 101 (1956), 138 N.E.2d 891; Adams v. Ison (Ky.1952), 249 S.W.2d 791; Hinkle v. Hargens, 76 S.D. 520 (1957), 81 N.W.2d 888; and Thompson v. Barnard, 142 S.W.2d 238 (Tex.Civ.App. 1940), affd. 138 Tex. 277, 158 S.W.2d 486.

The recent decision of the United States Court of Appeals, Fifth Circuit, in Powell v. Radkins, 506 F.2d 763 (5th Cir., 1975), involved a suit by a female who was sterilized while a ward of the Florida State Department of Health and Rehabilitative Service, Division of Mental Retardation. Therein, the court noted:

“Cases cited by appellant do not support her position. Buck v. Mouradian, 100 So.2d 70 (Fla.Dist.Ct.App.1958), stated that the statute would be tolled when the defendant prevents the plaintiff from discovering the injury inflicted by defendant. Where the plaintiff has sufficient facts to give her reason to discover the injury, as- in the present case, the ‘prevention’ rationale is no longer applicable. Thus Buck would not support tolling in this case. City of Miami v. Brooks, 70 So.2d 306 (Fla.1954), simply stated the general rule that the statute begins to run when the plaintiff has been put on notice of his right to a cause of action. This in no way supports the tolling principle sought by plaintiff.”

However, as aforestated, fraudulent concealment by defendant so as to prevent plaintiffs from discovering their cause of action, where the physician has fraudulently concealed the facts showing negligence, will toll the statute of limitations until the facts of such fraudulent concealment can be discovered through reasonable diligence. But then the question becomes what constitutes fraudulent concealment when as in the case before us, there is no active misrepresentation; in fact, there is mere silence as to possible or likely causes. Several views avail themselves to this Court in reaching a definitive conclusion. Loui-sell and Williams in their manual entitled “Medical Malpractice” explain several of the variant positions adopted by the different states as follows:

“Fifteen states have passed statutes specifically tolling the statute for fraudulent concealment. Ordinarily affirmative acts beyond mere silence by the physician are required. Some courts, because of the fiduciary character of the physician-patient relationship, have held that silence by the physician, where there is a duty to disclose either his negligent act or the fact that an injury indeed occurred, will constitute fraudulent concealment. The most extreme position that has been taken is that actual knowledge by the physician is not necessary where he was negligent in not discovering the injury. This position essentially is equivalent to holding that in malpractice cases the statute tolls until the injury is discovered. A few cases have specifically rejected fraudulent concealment as grounds for tolling the statute in malpractice actions.”

Pertaining to the fiduciary nature of the doctor-patient relationship, the United States Court of Appeals, Fifth Circuit, in Sheets v. Burman, 322 F.2d 277 (1963), quoted the following excerpt from the Indiana Supreme Court in Guy v. Schuldt, 236 Ind. 101, 138 N.E.2d 891 (1956):

“Usually, there must be some active effort on the part of the one to be guilty of concealment but where a fiduciary or confidential relationship exists, such as physician-patient, there exists a duty to disclose material information between the parties and a failure to do so results in concealment. * * * [Wjhere the duty to inform exists by reason of a confidential relationship, when that relationship is terminated the duty to inform is also terminated; concealment then ceases to exist. After the relationship of physician and patient is terminated the patient has full opportunity for discovery and no longer is there a reliance by the patient nor a corresponding duty of the physician to advise or inform. The statute of limitations is no longer tolled by any fraudulent concealment and begins to run.”

and the Fifth Circuit Court of Appeals concluded as to the issue of whether there was fraudulent concealment so as to toll the statute of limitations, as follows:

“In Louisiana as in Indiana, therefore, the statute is tolled as to an injured patient when there is a doctor-patient relationship and the patient relies upon the doctor’s skill and representation. The statute does not commence to run until there is knowledge of the act causing the damage or until the termination of doctor-patient relationship. See Aegis Insurance Co. v. Delta Fire & Casualty Co., 99 So.2d 767, 782 (La.App.1957); R. J. Reynolds Tobacco Co. v. Hudson, 5 Cir., 1963, 314 F.2d 776.”

Allen, et al, v. Layton, et al., 235 A.2d 261 (Del.Super.1967), a Delaware suit, involved a malpractice action against a surgeon and a hospital by a patient for injuries resulting from leaving a hemostat in her body during the course of an operation. Therein the court opined:

“Fraudulent concealment is the intentional nondisclosure of material facts by one owing a duty to disclose. See 23 Am. Jur. Fraud and Deceit, § 578, p. 854. Ordinarily, the defrauding party must have knowledge of the facts concealed. If the surgeon here had known of the hemostat being left in plaintiff’s body, he would have committed fraudulent concealment.”

In Brown v. United States, 353 F.2d 578 (9th Cir., 1965), the United States Court of Appeals, Ninth Circuit, as to the question of whether there had been fraudulent concealment sufficient to toll the statute of limitations, recognized that no government physician stated that there had been negligent treatment of the child, but concluded :

“It is clear, however, that the parents, not later than 1956, were informed as to the exact nature of the disability and its relationship to prior medical treatment. Thus, the trial court properly concluded that to the parents there came knowledge of facts sufficient to alert a reasonable person that there may have been negligence related to the grievance for which the complaint was subsequently made. The tragedy itself, unusual and unexpected, would ordinarily be expected to have alerted the parents to take steps to ascertain whether rights had accrued and if so, to protect those rights.”

A surgeon who knowingly left a ball of gauze in his patient’s abdominal cavity after performing an operation and failed to apprise the patient of the fact was held guilty of continuing negligence and fraudulent concealment tolling the statute of limitations until he performed his duty of removing the foreign substance or the patient learned or through the exercise of reasonable diligence should have learned of its presence. In that case the patient continued under the care and treatment of this physician for several years, but never disclosed to her the presence of this foreign substance in her abdomen. The Arkansas Supreme Court, in Burton v. Tribble, supra, held:

“. . . if, in the exercise of ordinary care and skill, appellee knew that the foreign substance was left in appellant’s abdominal cavity, it then and thereupon became his imperative duty to apprise appellant of this fact and not conceal it from her until the statute of limitation had attached.”

This Court in Proctor v. Schomberg, 63 So.2d 68 (Fla.1953), found that if the dentist who was charged with malpractice in leaving a piece of broken metal instrument or other foreign substance in the area of the bone structure where plaintiff’s impacted wisdom tooth had been removed by the dentist and where x-rays of the affected bone area were taken ten months after removal of the tooth, fraudulently concealed such fact from his patient, the statute of limitations would not commence to run against the patient’s cause of action until the patient discovered or had a reasonable opportunity to discover the injury. Cf. Buck v. Mouradian, supra, wherein a Florida Appellate Court explained that where an injured person is prevented from knowing of his injury due to concealment of the fact of his injury by his physician, the statute of limitations will be tolled when it can be shown that fraud has been perpetrated on the injured party sufficient to place him in ignorance of his right to a cause of action or to prevent him from discovering his injury. Sub judice, as aforestated there was not and could not be any concealment of the patently obvious injury.

After careful analysis of the variant views of other jurisdictions in this country and previous views espoused by this Court and other Florida Appellate Courts, we hold that, although generally the fraud must be of such a nature as to constitute active concealment to prevent inquiry or elude investigation or to mislead a person who could claim a cause of action, we do recognize the fiduciary, confidential relationship of physician-patient imposing on the physician a duty to disclose; but, this is a duty to disclose known facts and not conjecture and speculation as to possibilities. The necessary predicate of this duty is knowledge of the fact of the wrong done to the patient. Cf. Kauchick, supra. Where an adverse condition is known to the doctor or readily available to him through efficient diagnosis, he has a duty to disclose and his failure to do so amounts to a fraudulent withholding of the facts, sufficient to toll the running of the statute. But, where the symptoms or the condition are such that the doctor in the exercise of reasonable diligence cannot reach a judgment as to the exact cause of the injury or condition and merely can conjecture over the possible or likely causes, he is under no commanding duty to disclose a conjecture of which he is not sure. Therefore, his silence as to a possible condition or cause which he is unable to verify in the exercise of reasonable diligence does not standing alone constitute sufficient fraudulent withholding to toll the statute of limitations.

Accordingly, we would answer the third and fourth questions in the negative as to all parties to the suit.

Evident from the record, the United State District Court’s decision, the certificate of facts, and as conceded by the parties, the injury was patent and therefore there could be no concealment and resulting duty to disclose the fact of the injury on the part of the physicians. ' The record is not clear on the cause of the injury and on this issue we render no opinion as to whether this was an adverse condition known to the doctor for which he had a duty to disclose, failure of which would toll the statute.

For the aforegoing reasons, the first question is answered in the affirmative. The nature of the infant’s condition was patent in 1965, before his discharge from the hospital, and was reaffirmed by Dr. Vicale in October, 1965; the records at all times were readily available. Cf. City of Miami v. Brooks, supra, Cristiani v. City of Sarasota, supra, and Buck v. Mouradian, supra. The second question is answered in the affirmative. Again, we note that there was no attempt to conceal records from the plaintiffs, but rather, as conceded by the parties, the records were of such a character as to be obtainable by or available to the plaintiffs. Mere ignorance of the easily discoverable facts which constitute the cause of action will not postpone the operation of the statute of limitations as to the party plaintiffs. As above explained and pursuant to the peculiar facts of this case above described, the third question is answered in the negative. Although the confidential and fiduciary nature of the doctor-patient relationship does impose a duty on the physician to disclose known causes (or causes that should be known through exercise of reasonable care and due diligence) readily available to him through efficient diagnosis and failure to do so constitutes sufficient concealment to toll the statute, there is no concomitant duty imposed on the physician to relate all merely possible or likely causes of the injury. Pursuant to the specific facts (as contained in the certificate) of the instant cause, the fourth question is answered in the negative for the same reason as question three above-explained.

Having expressed our opinion on the questions of law presented, we must leave to the Federal System the establishing of, and application to, the facts in this cause.

OVERTON, C. J., ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., and BOYER, District Court Judge, concur.

      . We note, although not material to the instant cause, that relative to the statute of limitations in malpractice suits, Subsection (6) of Section 95.11, Florida Statutes, was amended in 1971 by Chapter 71-254, to take effect July 1, 1972, as follows:
      “ (6) ’Within two years. — An action by another than the state upon a statute for a penalty or forfeiture; an action for libel, slander, assault, battery, or false imprisonment ; an action arising upon account of an act causing a wrongful death; and an action to recover damages for injuries to the person arising from any medical, dental, optometrie, chiropodial, or chiropractic treatment or surgical operation, the cause of action in such cases not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury.” (e. s.) and this section was subsequently amended in 1974 to provide:
      “(4) Within two years.—
      (a) An action for professional malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence; provided, however, that the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.”
      which act became effective January 1, 1975, but further provided that any action that will be barred when this act becomes effective and that would not be barred under prior law may be commenced before January 1, 1976. Cf. DeLuca v. Mathews, 297 So.2d 854 (Fla.App. 4, 1974).

      . The Third District Court of Appeal in Buck, supra, explained: “The general rule is to the effect that when there has been notice of the invasion of a legal right or a person has been put on notice of his right to a cause of action, the statute of limitations begins to run. However, in a tort action based upon malpractice, the application of the general rule becomes difficult where the injured person is prevented from knowing of his injury due to the concealment of the fact of his injury by the treating physician. In such cases, there is a well-recognized exception which tolls the running of the statute when it can be shown that fraud has been perpetrated upon the injured party sufficient to place him in ignorance of his right to a cause of action, or to prevent him from discovering such injury. We therefore come to the point of considering the sufficiency of the pleadings, interrogatories and admissions of the parties to support the appellant’s claim of fraudulent concealment of her injury, and the negligent act of the appellee.”


source: Caselaw Access Project

author: BY THE COURT.

license: Public Domain

text:
    Daniel KING, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-434.
    District Court of Appeal of Florida, First District.
    June 10, 1976.
    Richard W. Ervin, III, Public Defender, and Douglas C. Kearney and Louis G. Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: BOYER, Chief Judge.

text:
    Ernest E. JOHNSTON and D. Rian Martin, Appellants, v. Stephen C. O’CONNELL et al., Appellees.
    No. AA-480.
    District Court of Appeal of Florida, First District.
    June 10, 1976.
    Stanley Bruce Powell, of Douglass & Powell, Tallahassee, for appellants.
    John K. Folsom of Folsom & Stein-mayer, Ben H. Wilkinson, Tallahassee, for appellees.
   BOYER, Chief Judge.

Appellants, defendants in the trial court, appeal a partial summary judgment on the issue of liability in favor of plaintiffs, ap-pellees here.

In January of 1973, Turkey Roost Plantation, of which appellees constitute the Board of Trustees, sold to defendants a parcel of property described as:

That part of the Northeast Quarter of Section 11 and that part of the Northwest Quarter of Section 12, Township 1 North, Range 2 East, lying North of • State Road 10 (U.S. 90), Leon County, Florida.

The contract which predated the sale described the property as consisting of approximately 79 acres, more or less. In that contract were various terms and conditions of sale, one of which provided:

“The acreage rate offered is $1,250.00 per acre. The survey will be supplied to purchasers by the sellers ascertaining exact acreage and dimensions of this tract of land. The purchase price will be adjusted at the rate of $1,250.00 per acre to the exact acreage figure reflected by the survey. The down payment will remain the same in any event and the annual payments will be adjusted accordingly in the mortgage instrument and note.”

Pursuant' to the above quoted paragraph, a survey was procured which showed the exact amount of acreage to be 88.47 acres, or 9.47 acres more than anticipated. The purchase price was increased by employing the rate recited in the contract and the sale was closed on that basis. Appellants thereupon took possession of the property and made certain improvements. Some eight months later it was discovered that the survey had incorrectly determined the right-of-way of U. S. 90 to extend 100 feet on either side of the center line when, in fact, the right-of-way extended only 33 feet on either side of the center line. The surveyor thereupon prepared a corrected survey which showed the subject tract to contain 94.69 acres, an increase of 6.22 acres over the original survey. Both parties accept the accuracy of the corrected survey. When the purchasers refused the demand of the sellers for payment for the additional 6.22 acres at the agreed rate of $1,250 per acre (or an increase in the purchase money mortgage by a like amount), the sellers commenced suit.

Count 1 of the complaint sought compensation for unjust enrichment and Count 2 sought reformation of the purchase money mortgage or, in the alternative, a reconveyance of the 6.22 acres. The learned trial judge entered a summary judgment on the issue of liability, but did so on the theory of unjust enrichment, holding that there was an issue to be resolved by the trier of fact as to “the average market value at the time of closing of 6.22 acres of the tract conveyed by” the sellers to the purchasers.

The evidence in this case demonstrates a classic example of mutual mistake, thus reformation. There is no question but that the purchasers contracted to purchase such property as the seller should convey, determined by an accurate survey, at the rate of $1,250 per acre. Neither party was aware of the error in the initial survey which was relied upon at the time of closing. The learned trial judge was therefore eminently correct when he held that the purchasers were responsible for payment for the additional 6.22 acres revealed by the corrected survey to have been conveyed to them. However, he erred in basing his order on the theory of unjust enrichment, thereby holding that the amount of compensation was to be fixed by a trier of fact based upon “the average market value at the time of closing”. The price per acre was clearly fixed by the contract at $1,250 per acre. There is no issue in that regard. In accordance with Count 2 of the complaint, the purchase money mortgage should be reformed to secure the payment by the purchasers (mortgagors) to the sellers (mortgagees) of an additional $7,775.00 (6.22 acres times $1,-250 per acre) or in the alternative the purchasers, appellants, should be required to reconvey to appellees the 67 foot strip which was erroneously reflected by the original survey to have been included in the right-of-way of U.S. 90.

We have considered the other points raised by appellants and find them to be without merit.

Affirmed in part and reversed in part and remanded for further proceedings consistent herewith.

IT IS SO ORDERED.

McCORD and MILLS, JJ., concur.


author: PER CURIAM.

text:
    Janice K. SLATE, Appellant, v. Kenneth R. SLATE, Appellee.
    No. W-464.
    District Court of Appeal of Florida, First District.
    June 14, 1976.
    Ernest D. Jackson, Sr., Jackson & Micks, Jacksonville, for appellant.
    Barry L. Zisser, Zisser & Robison, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED. Young v. Young, 305 So.2d 92 (Fla.App. 1st, 1974).

RAWLS, Acting C. J., SMITH, J., and SWIGERT, WILLIAM T., Associate Judge, concur.


author: McNULTY, Chief Judge.

text:
    HEY KILEY MAN, INC., Appellant, v. AZALEA GARDENS APARTMENTS et al., Appellees.
    No. 75-442.
    District Court of Appeal of Florida, Second District.
    June 9, 1976.
    Lex Taylor of Taylor & Laurent, Lake-land, for appellant.
    Stephen C. Watson of Hahn, Breathitt & Roberts, Lakeland, for appellees.
    Richard B. Oole, of Griffin, Gillis, Stead & Farfante, Tampa, for appellee Blue Seal Excavating & Paving Company, Inc.

      James S. Moody, Jr., of Trinkle, Red-man, Clawson, Alley & Swanson, Plant City, for amicus curiae.
   McNULTY, Chief Judge.

We construe this day Florida’s Mechanics’ Lien Law as it relates to the protection afforded a subcontractor several times removed from privity with an owner by intervening subcontractors. Final summary judgment was entered herein against the plaintiff-appellant, technically a sub-sub-subcontractor in its action to foreclose a mechanics’ lien filed pursuant to § 713.01, et seq., F.S.1973. The trial court determined that, as a matter of law, appellant was beyond the protection of the Mechanics’ Lien Law. We reverse.

Appellant, Hey Kiley Man, Inc., is a small service corporation supplying labor on a contract basis. Between March 21 and April 8, 1974, under a contract with T. R. Contractors, Inc., appellant furnished labor in the site preparation for construction of the Azalea Gardens Apartments. T. R. Contractors, Inc. was a sub-subcontractor on the project under Blue Seal Excavating and Paving Company, Inc. which, in turn, was still another subcontractor under the general contractor, Phillips-Whit-ten Construction Company, Inc.

Having received no payment for the labor furnished to T. R. Contractors, Inc., the appellant filed a proper notice to owner pursuant to § 713.06(2), F.S.1973, and timely recorded a claim of lien in the amount of $880.40 pursuant to § 713.08, F. S.1973. The claim of lien was subsequently transferred to the security of a bond by defendants Blue Seal Excavating and Paving Company, Inc., as principal, and Auto Owners Insurance Company, as surety, and this action ensued.

Both sides moved for summary judgment; and after a hearing and consideration of memoranda of law submitted by the parties, the lower court determined that the case is controlled by the 1966 supreme court case of Conway v. Sears, Roebuck and Company and by this court’s subsequent dicision in J. P. Driver Company v. Claxton, We think not.

Rather we agree with appellant that the Conway and Driver cases are no longer applicable. Conway construed the precursor of the present Mechanics’ Lien Law as it existed in 1961 and this court in Driver merely applied the rationale of Conway to the 1963 revision of the statute without a thorough analysis of the purposes to be served by the act or the significance of the revision.

Prior to 1961, the Mechanics’ Lien Law was construed by our supreme court to exclude sub-subcontractors from its coverage. In 1961, however, the legislature extended the benefits of the law to sub-subcontractors by enacting § 84.021, F. S.1961, which read:

“It is the legislative intent that materi-almen furnishing materials to a subcontractor as defined in § 84.01 and a subcontractor as defined performing any part of a sub-contractor’s contract shall, subject to compliance with the provisions of this chapter, have a lien and be entitled to the benefits of this chapter.”

and the Conway case, supra, construing this section, held that a i«&-sub-subcontractor was too remote in point of privity with the owner to be entitled to a lien under that new provision.

In 1963 the Mechanics’ Lien Law was again revised; but as our sister court in the Third District observed in Ceco v. Goldberg, the underlying reason for the latter revision was not so much to alter the scope of persons entitled to mechanics’ liens, but rather to remedy procedural defects which resulted in the recording of remote “hidden liens” against owners of realty by persons not in privity. So the 1963 revision placed potential lienors into two categories, those in privity with the owner and those not in privity. With respect to those not in privity with the owner, a lienor has ever since been required to give notice to an owner that he has furnished or is about to furnish services or materials to enhance the owner’s property as a condition precedent to perfecting his lien. Prior to that revision, however, such notice to the owner was merely permissive. It’s obvious, then, that it is no longer a concern to protect owners from remote “hidden liens”; they’re now protected.

Additionally, and significantly we think, the aforesaid 1963 revision also omitted the language of the aforequoted § 84.021, supra, which, according to Conway, supra, specifically limited protection to sub-subcontractors; but, for the first time and without express limitation, it added protection for “[p]ersons” not in privity with the owner who perform labor, services or furnish materials provided they give the notice now required. The transition, for the purposes perceived by the Third District in Ceco, supra, was now complete.

Notwithstanding, this court in the Driver case, supra, concluded from the fact that the legislature in 1963 eliminated the “sub-subcontractor” protection under the 1961 Act (which, as noted, was the section construed in Conway, supra) that even a JM&-subcontractor is no longer entitled to a mechanics’ lien under the revised statute; thus going back to the very early rule in Richard Store Company v. Florida Bridges and Iron, supra. But as we said, the Third District subsequently declined to follow Driver in Ceco, supra, and instead reasoned that the statute should be construed broadly in order best to protect the interests of both the owners and those for whose benefit the Mechanics’ Lien Law was enacted in the first place, that is, those who would furnish labor, services and materials to the benefit of the owners. That court examined the act as a whole, noting that an owner is now protected against “hidden liens” of persons not in privity with him and concluded that the only logical definition of the term “subcontractor” as it appears in the present § 713.06(1) and its predecessors back to 1963 must include sub-subcontractors as well. By a parity of reasoning we see no reason why it should not also extend even to the facts here and include a ¿w&-sub-subcontractor.

Accordingly, we recede from Driver, supra, and subscribe to the views of our sister court as expressed in Ceco Corp. v. Goldberg, supra. We therefore read the term “subcontractor” within the provisions of § 713.06(1), supra, to include anyone not in privity with the owner performing a portion of a contract to enhance realty; and we see no sense in drawing an arbitrary line cutting off would-be lienors, based on degrees of remoteness from privity, assuming the protective notice requirement for perfecting a lien pursuant to § 713.06(2)(a), supra. To hold otherwise would be to suffer full protection to an owner while yet denying protection to one contributing services and materials to the substantial benefit of such owner merely because he was one arbitrary step too remote.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN and GRIMES, JJ., concur.

      . (Fla.1966), 185 So.2d 697.

      . (Fla.App.2d 1967), 193 So.2d 440.

      . Section 84.01, et seq., F.S.1961.

      . See Richard Store Company v. Florida Bridges and Iron (Fla.1955), 77 So.2d 632.

      . (Fla.App.3d, 1969), 219 So.2d 475.

      . Section 84.051, F.S.1963, now § 713.05, F.S.1975.

      . Section 84.061, F.S.1963, now § 713.06, F.S. 1975.

      . Section 84.061(2) (a), F.S.1963, now § 713.-06(2) (a), F.S.1975.

      . See § 84.04(1) (a), F.S.1961.

      . Section 84.022(4), F.S.1963, now § 713.02 (4), F.S.1975.

      . This conclusion was buttressed by the fact that the term “sub-subcontractor” has been continously retained within the definitions section of statutes since 1963, § 84.011(17), F.S.1963, now § 713.01(17), F.S.1975.


author: WALDEN, Chief Judge.

text:
    STATE of Florida, Appellant, v. Primus HAYES, Appellee.
    No. 75-1034.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1976.
    David H. Bludworth, State’s Atty., and Gerald A. McGill, Asst. State’s Atty., West Palm Beach, for appellant.

      Richard L. Jorandby, Public Defender, and James R. Merola, Special Asst. Public Defender, West Palm Beach, for appellee.
   WALDEN, Chief Judge.

A two count information was filed against defendant charging him with (1) breaking and entering with intent to commit petty larceny, and (2) petty larceny.

Defendant moved to dismiss the Information under Rule 3.190(c)(4), F.R.Cr.P. The stipulated facts were:

“1. The home of Thomas Wright located at 1601 N.E. 1st Court, Boynton Beach, Florida, was broken into and property was taken on or about October 28, 1974.
“2. During police investigation a latent fingerprint matching that of Defendant’s rolled print was found on a jalousie window which was found in the bushes near Mr. Wright’s home.
“3. The State cannot determine when the latent print was made.
“4. Mr. Wright has never given the Defendant permission to be on his premises.
“5. Mr. Wright’s house was up for sale for a period of six months, including the month of October, 1974. A ‘For Sale’ sign was located on the front lawn and Berg Realty had permission to show the house. There is no evidence whether the house was ever shown to the Defendant.
“6. Mr. Wright’s home was broken into three weeks prior to October 28, 1974, although a different entry was apparently used than the one in this case. Nothing was taken and no suspects were apprehended in that prior burglary.
“7. There is no other circumstantial or direct evidence connecting Defendant with the burglary.”

The trial court granted the defendant’s motion and dismissed the Information, stating:

“The court believes that the matter is governed by Williams v. State, 308 So.2d 598 [595] (1 DC A 1975). But for the Williams case, the court would have considered the evidence sufficient to be presented to the jury under the circumstantial evidence available.”

The state appeals. We affirm.

We are faced with two points on appeal. The first is particularly provocative and apparently one of first impression in Florida. The state cited no case in support of its argument of it.

POINT I
Is a Circuit Court of the Fifteenth Circuit of Florida “bound” by the decision of a District Court of Appeal other than the Fourth District Court of Appeal ?

We opine and answer the question in the affirmative by flatly stating that a Circuit Court wheresoever situate in Florida is equally bound by a decision of a District Court of Appeal regardless of its appellate district.

The basic principle:

“Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. This rule is based on expediency and public policy . . . 21 C.J.S. Courts § 187.

The purpose of the rule is to preserve harmony and stability and predictability in the law, Forman v. Florida Land Holding Corporation, 102 So.2d 596 (Fla.1958); Old Plantation Corp. v. Maule Industries, Inc., 68 So.2d 180 (Fla.1953), see 20 Am.Jur.2d Courts § 183 et seq. The doctrine is generally applied to courts of last resort, see United States Steel Corpo ration v. Save Sand Key, Inc., 303 So.2d 9 (Fla.1974). In Florida the District Courts of Appeal are courts of final appellate jurisdiction except for a narrow classification of cases made reviewable by the Florida Supreme Court, Ansin v. Thurston, 101 So.2d 808 (Fla.1958); Taylor v. Knight, 234 So.2d 156 (1st DCA Fla.1970). The District Courts of Appeal are required to follow Supreme Court decisions. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). As an adjunct to this rule it is logical and necessary in order to preserve stability and predictability in the law that, likewise, trial courts be required to follow the holdings of higher courts — District Courts of Appeal. The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district court level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision, see 21 C.J.S. Courts § 196, § 198. Alternatively, if the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it, 21 C.J.S. Courts, supra. Contrarily, as between District Courts of Appeal, a sister district’s opinion is merely persuasive. Spencer Ladd’s, Inc. v. Lehman, 167 So.2d 731 (1st DCA Fla.1964), modified on different grounds at 182 So.2d 402 (Fla.1965).

No Florida case has spoken directly to this issue, see Bunn v. Bunn, 311 So.2d 387, 389 (4th DCA Fla.1975) (“Additionally, under the doctrine of stare decisis, an appellate court’s decision on issues properly before it and decided in disposing of the case, are, until overruled by a subsequent case, binding as precedent on courts of lesser jurisdiction.”)

Courts in other jurisdictions have decided this issue. In People v. Blount, 82 Misc.2d 964, 370 N.Y.S.2d 437 (Nassau County Ct. N.Y.1975), the court noted:

“Where a question has not yet been decided by the appellate courts in a certain department, inferior courts in that department must follow the determinations of the appellate courts in any other department until such time as their own appellate tribunals or the Court of Appeals passes upon the question.” Id. at 442.

Likewise, the court in Garcia v. Hynes & Howes Real Estate, Inc., 29 Ill.App.3d 479, 331 N.E.2d 634 (3rd DCA 1975), held that the “. . . opinions of any Appellate Court necessarily are binding on all Circuit Courts across the State, but not on the other branches of the Appellate Court.” Id. at 636. The court then set forth the following ranking, “A trial court, located in an appellate district where a conclusion on an issue is reached, should adhere to that conclusion and not to one promulgated in another district. A decision by the Illinois Supreme Court . . . would be binding on all courts.” Id.

One further illustration is Hale v. Superior Court of City and County of San Francisco, 15 Cal.3d 221, 124 Cal.Rptr. 57, 539 P.2d 817 (1975). In a footnote the court states, “Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state . . . .” Id. 124 Cal.Rptr. at 62, 539 P.2d at 822.

These cases set forth the hierarchy best designed to promote judicial stability and predictability. Therefore, in the absence of a contrary Fourth District Court of Appeal opinion a Palm Beach County Circuit Court is bound to follow an opinion of another District Court of Appeal, such as a First District Court of Appeal opinion. This would also promote the constitutional provision that the Supreme Court hear cases in which there is conflict between the District Courts of Appeal. Hence, if a circuit court is bound to follow a “foreign” district’s decision, on appeal the circuit court’s territorial district court will have the opportunity to follow the other District Court of Appeal opinion or to go a different route, inasmuch as the other district’s opinion is only persuasive authority for a court of the same level, Spencer Ladd’s, Inc., supra. It is then the prerogative of the Supreme Court to resolve any resulting conflict.

POINT II
Assuming, arguendo, that the above issue is answered in the affirmative, does Williams v. State compel the granting of the amended Motion to Dismiss in the instant case?

We agree that the Williams case mandates the dismissal of the Information inasmuch as the state has not shown, from the scant stipulated facts, that the defendant’s fingerprints could only have been made at the time the crime was committed, Knight v. State, 294 So.2d 387 (4th DCA Fla.1974); Tirko v. State, 138 So.2d 388 (3rd DCA Fla.1962).

We offer these thoughts with reference to the facts:

1.It was not shown whether the print was found on the inside or outside of the window.

2. It was not shown whether the jalousie window was at the place of entry.

3. It was not shown when the print was made.

4. The defendant could have made the print either when being shown the house by Berg or when independently viewing the house and either picking up the window from the bushes or by touching it before removal.

5. The defendant could have made the print if he were on the premises on October 28, 1974, even though a different entry was used.

Since the state suggests that there is confusion and uncertainty abroad among the circuit courts as to whether they are bound to follow the decision of a foreign District Court of Appeal (a suggestion which surprises us), and since under that rationale Circuit Courts in the First, Second and Third Appellate Districts would not feel bound by this instant decision, we do hereby offer upon appropriate application to certify the question contained in Point I as being one of great public interest.

AFFIRMED.

DOWNEY, J., and MELVIN, WOODROW M., Associate Judge, concur.

      . The panel dislikes the characterization of courts as being “higher” or “lower” and prefers to distinguish them either by proper name or by the terms “appellate court” or “trial court” inasmuch as they differ, not in importance, but only in their jurisdictional mandates. However, the issue here and the cases discussing it make necessary such references.


text:
    AETNA LIFE INSURANCE COMPANY, Appellant, v. Catherine A. NAKIS, as Executrix of the Estate of John E. Nakis, Deceased, Appellee.
    No. 75-1134.
    District Court of Appeal of Florida, Second District.
    June 11, 1976.

      Michael C. Addison and Malcolm V. McKay, Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for appellant.
    Scott Charlton and John W. Frazier, Peavyhouse, Giglio and Grant, Tampa, for appellee.
   McNULTY, Chief Judge.

John E. Nakis died forty-six and one-half months after he became totally disabled. Appellant insurance company thereupon terminated monthly payments which it had theretofore been paying as a “Disability Benefit” payable under a group policy of which the decedent was a beneficiary. Appellee, Executrix of the decedent’s estate, prevailed below in her action to recover the balance of the maximum number of monthly payments payable under the policy. We reverse.

The question, obviously, is whether death constitutes total disability within the meaning of the policy. We think not. The policy provides that the monthly payments payable thereunder “will begin on the day of disability . . . and will end on . (1) the date the [insured] ceases to be totally disabled.” A separate provision defines “totally disabled” as:

“ . . . the inability of the [insured], due to disease or accidental bodily injury, to perform each and every duty pertaining to his occupation, or, if retired, the inability of the [insured] due to sickness or accidental bodily injury, to engage in the usual activities of a person of like age and sex in good health.”

Additionally, the policy provides:

“No benefit will be payable under the group policy
(b) For any day on which the [insured] is not under the care of a legally qualified physician or surgeon other than himself . ”

Unquestionably this was a disability policy, not a life insurance policy. The fair and clear import of the provisions thereof insure against such period as an insured, otherwise in reasonably good health, cannot perform any of his usual occupational pursuits or, in the alternative if retired, cannot engage in normal retirement activities. To construe it otherwise would be to convert it into a “death benefit” policy, obviously not the intent of the parties.

Appellee’s “ambiguity” arguments are untenable. Particularly, she alludes to the provision of the policy calling for payment directly to “[insured] if living, otherwise to the estate of the [insured],” and suggests that such provision compels the conclusion that the parties contemplated “death” as the equivalent of “total disability.” The argument cannot stand. The provision can only mean that accrued benefits may be paid to the estate of a deceased insured; it cannot, in the absence of other language clearly to the contrary, make it a “death benefit” or life insurance policy under which death is a condition precedent to liability.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON and SCHEB, JT„ concur.

      . Cf. Griffin v. Travelers Indemnity Company (Fla.App.1st, 1976), 328 So.2d 207; Benton v. State Farm Mutual Automobile Ins. Co. (Fla.App.1st, 1974), 295 So.2d 344.


text:
    Reubin O’D. ASKEW, Governor of the State of Florida, et al., Appellants, v. GABLES-BY-THE-SEA, INC., a Florida corporation, Appellee.
    No. Z-92.
    District Court of Appeal of Florida, First District.
    June 3, 1976.

      Ross A. McVoy, Dept, of Environmental Regulation, Tallahassee, Robert L. Shevin, Atty. Gen., and Kenneth F. Hoffman, Asst. Atty. Gen., for appellants.
    Marion E. Sibley of Sibley, Giblin, Leven-son & Ward, Miami Beach, for appellee.
   PER CURIAM.

This controversy between appellee and the State has suffered an extensive judicial journey. In entering the partial summary judgment in favor of appellee, Gables-By-The-Sea, Inc., the learned trial judge traced the trials and tribulations that appellee has suffered for more than a decade by the actions of the sovereign. We adopt as this court’s opinion the trial court’s Partial Summary Judgment, viz.

“. . . The Court has examined the pleadings of the parties and the depositions and exhibits attached of Bernard Barnes of the Department of Pollution Control; Harmon W. Shields, Executive Director of the Florida Department of Natural Resources; Joseph W. Landers, Jr., of the Florida Board of Trustees of the Internal Improvement Trust Fund; Dr. O. E. Frye, Jr., Executive Director of the Department of Game and Fresh Water Fish Commission; and Bernard E. Goods, Chief of the Regulatory Branch of the U. S. Corps of Engineers, Jacksonville District. The Court has also considered the final judgment rendered in this cause on the 10th day of September, 1970; the supplemental final judgment rendered in this cause on January 21, 1972; and the opinions and judgments in this cause rendered by the District Court of Appeal of Florida, First District; namely, Kirk, Governor of State of Florida et al. v. Gables By The Sea, Inc., 251 So.2d 880, and Askew, Governor of State of Florida et al. v. Gables By The Sea, Inc., 258 So.2d 822. Based thereon the Court finds that:

“1. In the Judgment of this Court on the 10th day of September, 1970, it was finally adjudicated: [Defendants are appellants here and Plaintiff is appellee.]

‘On January 6, 1936, plaintiff acquired by purchase from the Trustees of the Internal Improvement Fund a substantial tract of bottoms in Biscayne Bay and within the City of Coral Gables. This tract extended seaward to the then established bulkhead line.
‘Some time after the purchase of these bottoms, the bulkhead line was reestablished some distance seaward from its previous location.
‘In 1956 plaintiff began to seek the necessary permits to dredge from the adjacent public bottoms and fill its land. Under date of May 17, 1956, the Trustees agreed to the issuance by the U. S. Corps of Engineers of a permit for this dredging. Everyone concerned seems to have regarded this as, at least, a license to plaintiff to remove the fill from the public bottoms.
‘During 1957 plaintiff sought to acquire by purchase from the Trustees a parcel of bottoms consisting of the area between the bulkhead line as it had previously existed and the new bulkhead line which had been established somewhat seaward from the old line.
‘Plaintiff filed a formal application with the Trustees, accompanied by a map which indicated the bottoms to be acquired, the areas to be filled and areas from which the proposed fill was to be dredged. This map clearly indicates that the area to be filled embraced the parcel previously acquired and the proposed new acquisition.
‘Under date of September 25, 1967, in the light of this background plaintiff purchased and paid for the second parcel of bottoms — that lying between the old and the new bulkhead lines.
‘. . . prior to October 18, 1965 the City of Coral Gables approved a fill permit to plaintiff and on November 2, 1965, this permit was formally approved by the Trustees. It is also admitted that this permit was extended until December 31, 1968.
‘The extension of the fill permit took the form of an approval by the Trustees of an extension of a permit issued by the Corps of Engineers.
‘On May 21, 1968, the Trustees adopted a resolution prohibiting any person from thereafter dredging pursuant to any preexisting permit unless dredging operations had already commenced. Plaintiff respected this resolution and, not having begun dredging, did not thereafter attempt to dredge under its permit.’

In that judgment it was adjudicated:

T. The right of plaintiff under the circumstances of this case to dredge fill material from public bottoms to fill the submerged land purchased from the Trustees was an incident to the purchase of submerged land and became a vested right.
‘2. This right did not extend in per-petuam and would be lost if not exercised within a reasonable time.
‘3. A reasonable time does not extend beyond the expiration date of the last extension granted by the Trustees.
‘4. The granting of dredge and fill permits by the Trustees served to perpetuate the rights of plaintiff for the life of such permits.
‘5. The action of the Trustees in attempting to abrogate an extension of a fill permit previously granted was without lawful authority, and void.
‘6. Plaintiff should not be penalized for obeying the demands of the highest officers of the State and respecting the order not to dredge.
‘7. Plaintiff is entitled to dredge from the designated areas under the terms and conditions of its permit in effect on May 21, 1968, for a number of days after this judgment becomes final, and the time for appeal expires, equal to the number of days from the adoption of the above-described resolution of the Trustees to December 31, 1968.
‘If such filling would injure the aquatic life of the vicinity to such an extent as to adversely affect the public interest, the State has the power of eminent domain to take, for just compensation, the plaintiff’s property. But the State cannot, after selling submerged land to private owners, deny such owners the right to use those lands in the only way in which private ownership can be of any value.’

And the Court found:

‘The plaintiff has the lawful right to dredge material from the areas indicated on the application for a dredge and fill permit and to use such material to fill its privately owned submerged land indicated on such application for a period of time consisting of 223 days beginning on the day this judgment becomes final by the expiration of the time of appeal, or the filing of the mandate of an Appellate Court affirming this judgment, whichever is the later date.’

“2. The permit granted by the U. S. Army Corps of Engineers which permitted the Plaintiff to dredge and fill the land involved was not revoked and remained outstanding and valid until the date of its expiration on December 31, 1968. The Defendants, by the revocation of the state permit, were the direct cause of the expiration of the federal permit, and thus, prevented the Plaintiff from dredging and filling its property pursuant to said federal permit.

“3. In the supplemental judgment rendered on the 16th day of February, 1972, upon the prior issuance of the Rule Nisi directed to the Board of Air and Water Pollution Control, Department of Air and Water Pollution Control for the State of Florida, it was found that:

‘In the last analysis the issues involved are between the plaintiff on the one hand and the State of Florida, acting through its agencies, on the other. Though the Trustees of the Internal Improvement Fund and the Board of Air and Water Pollution Control and the Department of Air and Water Pollution Control are separate and distinct agencies of the State, they are nevertheless mere agencies of the State and the question before this Court is not whether the actions of one may be the actions of another but whether or not the State is bound by the results of litigation involving one of such agencies.’

“4. In an effort to overturn this adjudication the Board of Air and Water Pollution Control of the Department of Air and Water Pollution Control took an appeal to the District Court of Appeal of Florida, First District, and the District Court of Appeal of Florida, First District, held:

‘It is the conclusion of this Court that the appeal herein is dilatory in nature, is sought by appellants for the sole purpose of further frustrating and delaying compliance with the mandate of this Court and the final judgment of the trial court, is frivolous, and not taken in good faith. This Court does hereby conclude that the final judgment entered by the trial court is an appropriate order rendered in strict compliance with the mandate of this Court.’

“5. The Plaintiff, through the due course of law, was not able to procure the issuance of a permit from the Defendants until June 19, 1972. This permit granted to the Plaintiff a 223-day period to dredge and fill its land from the date of the issuance of an extension to the U. S. Corps of Engineers’ permit, which had expired, as above pointed out.

“6. On May 30, 1972, the Corps of Engineers had advised the Plaintiff: . . .

‘Since the Department of the Army permit for this work expired 31 December 1968 no further work should be performed until the permit has been revived and extended.’

Pursuant to this notification the Plaintiff on July 28, 1972, filed its application for a revival and extension of the permit. Attached to the application was the permit issued by the Board of Trustees of the Internal Improvement Trust Fund, and the application filed by the Plaintiff with the Corps of Engineers provided: . .

‘Dredging must be completed within a period of 223 days after issuance of final Corps of Engineers permit in accordance with Florida Internal Improvement Fund Permit.’

“7. The Corps of Engineers on August 17, 1972, sent out notice to state agencies and other persons advising of the application made by the Plaintiff for the extension of its permit for the said 223-day period, and requested comments for approval or objections to the issuance of the extension. On August 23, 1972, a report was made to the Director of the Board of Trustees of the Internal Improvement Trust Fund received by that Director on August 28, 1972, from the divisions controlled by the Defendants; namely, the Division of Interior Resources, the Bureau of Beaches and Shores and Survey and Management Section of the Department of Natural Resources in which these divisions make the following comment: .

‘This is in response to your request for comments relative to the above-captioned Corps of Engineers notice.
‘The Division of Interior Resources does object to the issuance of the referenced item. .
‘The Bureau of Beaches and Shores does not object to the issuance of the referenced item.
‘The Survey and Management Section objects to the issuance of the referenced item. . . .’

“8. The Trustees of the Internal Improvement Trust Fund on September 12, 1972, through their Executive Director, advised the Corps that it would be inappropriate for the Trustees to comment ‘inasmuch as we are under a court order to grant a permit.’ . . . However, the Trustees attached to their letter a report made to the Trustees on August 30, 1972, from the Department of Natural Resources, above referred to, together with the attached comments of said division of said department, one of which was a letter of August 6, 1969, from the then Florida Board of Conservation, now the Department of Natural Resources, in which the marine biologist from said Board of Conservation makes findings of the damage and injury that will occur to the environment and to the ecology if the dredge and fill permit is granted and in which its Chief of Survey and Management states:

‘This massive dredge and fill project will have definite and permanent adverse effects on marine biological resources.’

Also attached to said letter of the Trustees to the Corps was the attached report of the Department of Natural Resources, the Division of Interior Resources, in which that department finds ‘that the construction, if permitted, would dredge an area and open that ares [sic] to intrusion by sea-water almost to the saltwater intrusion line.’ It also finds that the aquifer will be damaged ‘through the misuse of land and resources available.’ .

“9. The Florida Game and Fresh Water Fish Commission filed a vigorous protest with the Corps to the extension of Plaintiff’s permit. In said protest the said commission contended that the extension of the dredge and fill permit would cause serious injury and damage to the ecology and environment and ecosystem.

“10. The Pollution Board did not itself file a protest, however, a member of the Pollution Control Board, James F. Redford, Jr., in the name of the Izaak Walton League, did protest. In this protest he pointed out that the Court had ordered a certification by the Florida Pollution Control Board without affording the department an opportunity to study the project. He further stated: . . .

‘If the Corps should deny such a hearing and issue a permit to Gables-By-The-Sea, I can assure you of a lawsuit against the Corps of Engineers by the Izaak Walton League, Tropical Audubon Society, Florida Audubon Society, Sierra Club, and by property owners in the subdivision involved.’

He refers to ‘the strange and convoluted history of this project.’ The Attorney General advised Redford in connection with the application before the Corps of Engineers as follows: . . .

‘Although I will prepare a more extensive memorandum for the Board’s consideration, it is my initial feeling that in view of the past court orders in this case, it would be best for the board not to attempt to interfere with the certification by a declaratory action in federal court. I think the matter would best be solved by a private plaintiff or by the Corps’ own analysis of the project.’

“11. David B. Harris of the Environmental Protection Section of the Florida Game and Fresh Water Fish Commission (See § 20.25(17), F.S.), September 11, 1972, advised the property owners engaged in protesting the issuance of the Corps’ permit as follows: . . .

‘To bring pressure on the “Corps” I would recommend that you start a massive letter writing campaign to the District Engineer. This tactic has proved very successful in the past and I believe it would be effective in this case.’

The Corps of Engineers on November 22, 1972, sought permission to deny the application, and, thereafter, on January 18, 1973, denied said application, giving as its reasons that it is not consistent with current public interest, would destroy a biologically productive area, and was opposed by federal agencies, ‘the State of Florida Game and Fresh Water Fish Commission and Department of Natural Resources, the Dade County Planning Department, and was the subject of over 500 letters of opposition from the general public.’ . . .

“12. The motion for summary judgment presents two issues. First, whether the Plaintiff is entitled to a mandatory injunction requiring the Defendants to institute condemnation proceedings. Second, whether the Court can award damages or a compensatory fine against the Defendants for having joined in the effort to procure from the Corps of Engineers a denial of this permit. Turning first to the question of whether or not the Plaintiff is entitled to a mandatory injunction, this Court has found in the final judgment rendered on the 10th day of September, 1970, the state cannot ‘after selling submerged land to private owners deny such owners the right to use those lands in the only way in which private ownership can be of any value.’ The Court has also held that the action of the Trustees in revoking the permit thus denying the Plaintiff the right to use its land in the only way in which private ownership can be of any value rendered the land totally useless so far as the Plaintiff, as a private owner, is concerned. This unlawful revocation of the Plaintiff’s permit ultimately resulted in the denial to the Plaintiff of the right to use its land for private purposes. The unlawful action of the Defendants caused the valid permit issued to the Plaintiff by the Corps of Engineers to expire. The long delay due to the Defendant’s [sic] determination to deny the Plaintiff the use of its land by utilizing every court process to delay the granting of a permit not only caused the loss by expiration of the Army permit but surely was a contributing factor in the Corps’ refusal to grant an extension, for there is no contention that the permit granted by the Corps in 1965, which did not expire until December 31, 1968, would have caused any different, supposed ecological injury than it is now contended would be suffered through the extension of the said permit for 223 days.

“The Court concludes that the Defendants have permanently denied to the Plaintiff the use of its land and the Plaintiff is entitled to a judgment requiring the Defendants to institute condemnation proceedings in Dade County, Florida, pursuant to the provisions of law governing such actions.

“The Court finds from the pleadings, depositions, and admissions, all on file, together with the affidavits of the parties, that there is no genuine issue as to any material fact, and the Plaintiff is entitled to a judgment as a matter of law on the issue and prayer for the rendition of a mandatory injunction against the Defendants requiring the Defendants to institute and maintain condemnation proceedings against the property of the Plaintiff shown and described in the permit granted by the Defendants on June 19, 1972.

“13. Turning to the issues of whether or not damages should be awarded to Plaintiff for costs and expenses to which it has been put due to the actions of the state agencies and officials involved, the Court deems that no such right has been established and, even if it had, the extent of the alleged damages have not been shown. The right to just compensation through eminent domain proceedings is the only relief to which the plaintiffs are entitled.

“It is thereupon,

“CONSIDERED, ORDERED AND ADJUDGED:

“A. A mandatory permanent injunction is hereby granted against the Defendants, the Board of Trustees of the Internal Improvement Trust Fund, enjoining, requiring and commanding the said state agency to forthwith institute condemnation proceedings in Dade County, Florida condemning, pursuant to the applicable statutes, the Plaintiff’s property involved in this litigation, for which it shall in said condemnation proceedings pay such just compensation as may be awarded together with reasonable attorneys fees as may be allowed to the Plaintiff’s attorneys in said condemnation proceedings, as is provided by law.

“B. Summary judgment is denied on the claim for assessment of damages for costs and expenses.

“C. Jurisdiction is reserved to enforce the injunction herein granted. . . .”

AFFIRMED.

RAWLS, Acting C. J., and McCORD and MILLS, JJ., concur.


text:
    George ROLLINS and Margaret Rollins, Appellants, v. Eugene C. THOMAS et al., Appellees.
    No. Z-134.
    District Court of Appeal of Florida, First District.
    June 14, 1976.
    Robert W. Morrison, Tampa, for appellants.
    L. William Graham of Dell, Graham, Willcox, Barker, Rappenecker, Ryals & Henderson, James E. Clayton, Gainesville, for appellees.
   PER CURIAM.

We now visit this case for a second time. (See Thomas v. Rollins, Fla.App. 1st 1974, 298 So.2d 186) Since our prior opinion, a trial has been held on the merits following which the trial court entered a final judgment imposing a constructive trust in favor of appellees. From that final judgment this appeal is taken. An examination of the record reveals conflicting evidence. It was the province of the trial judge to resolve that conflict. If appellees’ version of the evidence is accepted as true the requisites for a constructive trust were established. We find no error.

AFFIRMED.

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


text:
    Johnnie Ivey WILSON, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-391.
    District Court of Appeal of Florida, First District.
    June 14, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.