text:
    Pedro TAYLOR, Appellant, v. FLORIDA CITY, a Municipal Corporation, et al., Appellees.
    No. 75-140.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Rehearing Denied Dec. 3, 1975.
    John E. Bassett, Miami, for appellant.
    William A. Ingraham, Jr., Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, plaintiff in the trial court, appeals an adverse summary final judgment entered in favor of appellees, defendants in the trial court.

Appellant filed a complaint against ap-pellees alleging that on December 28, 1971, during his attendance at a Florida City Commission meeting he was verbally abused and physically assaulted by appel-lees, and as a result incurred damages. Subsequently, appellees moved for summary judgment against the complaint, and on January 15, 1975, the trial court entered summary final judgment in their favor.

In support of their motion for summary judgment, appellees filed several affidavits setting forth material facts in regard to the issues raised by the complaint. In opposition to appellees’ motion, appellant likewise filed several affidavits which, we feel from our reading of the record, controvert the facts set forth in appellees’ affidavits. It is our opinion that these affidavits, except as to appellee R. S. Shriver, create genuine issues of material facts in regard to appellant’s complaint.

Rule 1.510(e), Florida Rules of Civil Procedure, F.S.A., provides for the granting of summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In the case sub judice, since we have found that issues of material facts were raised by the affidavits of appellant and appellees, it follows that the summary final judgment appealed, except as to Shriver, was incorrectly granted. Reed v. Jim Moran Pontiac, Inc., Fla.App. 1974, 292 So.2d 392; Smith v. Quinn, Fla. App.1974, 291 So.2d 264; Moore v. School Board, Fla.App.1974, 291 So.2d 244; and 30 Fla.Jur., Summary Judgment § 11.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the summary final judgment appealed is affirmed as to appellee R. S. Shriver and reversed as to all other named appellees.

Affirmed in part, reversed in part.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    Winifred KIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. Y-35.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1975.
    Rehearing Denied Dec. 2, 1975.
    Joe J. Harrell of Harrell, Wiltshire, Bozeman, Stone, Swearingen & Hart, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

Kimmons appeals from a judgment and prison sentence entered on a jury verdict of his guilt on a charge that he delivered a barbiturate in violation of § 893.13(1) (a), F.S. 1973. Kimmons urges on appeal that his entrapment defense was established as a matter of law.

The issue is whether the evidence viewed most favorable to the State demonstrates that, at a time when appellant Kim-mons had no intention to deliver drugs, agent Cardwell induced Kimmons to commit the crime by offering and paying Kim-mons eighteen dollars for six capsules of a barbiturate. If at the time of the encounter Kimmons already had the intent and predisposition to commit an offense of the character charged, his conviction will not be vitiated by Cardwell’s conduct furnishing an opportunity to commit the offense. See Lashley v. State, 67 So.2d 648 (Fla. 1953); Spencer v. State, 263 So.2d 282 (Fla.App. 1st, 1972).

On December 1, 1973, agent Cardwell approached Kimmons pursuant to plan and asked to buy drugs. Cardwell and other agents had previously received information from a number of sources, particularly two fifteen year-old girlfriends of Kimmons’ daughter, that Kimmons had delivered drugs to minors. One of the young girls told the agents and later testified that Kimmons furnished her drugs and on one occasion took sexual liberties with her while she was under the influence of the drugs.

After Kimmons and Cardwell talked about buying and selling drugs on December 1 and 12, 1973, and January 10, 1974, Kimmons delivered barbiturates to Card-well for cash on January 10, 1974. Agent Cardwell was the moving party who by requests for drugs initiated and sustained the conversations leading to the purchase. It is virtually undisputed that, prior to December 1, neither Cardwell nor any other agent had information that Kimmons had engaged in the sale, as distinguished from the delivery, of controlled substances to minors or anyone else. Yet by their verdict the jury accepted the disputed testimony of agent Cardwell that, on each of the three occasions when he offered to buy drugs from Kimmons for money, Kimmons replied receptively and encouragingly. The issue then is whether Kimmons’ evident disposition unlawfully to deliver controlled substances, as demonstrated by his prior conduct reported to the agents and described to the jury, was a sufficient predicate for the agent’s proposal on December 1, 1973 and thereafter that Kim-mons deliver drugs for cash.

We hold that the trial court properly submitted the case to the jury. While we cannot deny that public conscience and sentencing judges may discriminate between the mere delivery of controlled substances and their delivery for pecuniary profit, Kimmons was charged not with selling but with delivering drugs [§ 893.-13(1) (a), F.S.1973], The delivery of drugs was the offense which Kimmons was predisposed to commit. We recognize that agent Cardwell was a prospective purchaser of drugs, not a casual solicitor, and we do not condone State overtures which instill hopes for pecuniary gain in the mind of one whose predeposition is only to deliver, on request or otherwise, without acquisitive motives. But here there was evidence from which the jury could find that Kimmons was previously disposed for sexual motives to deliver drugs to a fifteen year-old girl. If the jury could so find, the State was justified in making financial bait available to one whose prior deliveries were thus acquisitive and purposeful.

Kimmons invites us to reformulate the entrapment defense to proscribe prosecutions resulting from State conduct which is likely to tempt and ensnare those who would normally avoid crime as well as those who seek the criminal opportunity. The test proposed is an objective one which shifts attention away from the particular accused’s mental state and concentrates instead on “whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.” Sherman v. United States, 356 U.S. 369, 382, 78 S.Ct. 819, 825, 2 L.Ed.2d 848 (1948) (concurring opinion) ; see also Sorrells v. United States, 287 U.S. 435, 459, 53 S.Ct. 210, 77 L.Ed. 413 (1932) (concurring opinion).

The United States Supreme Court in a closely divided decision has recently declined to modify the entrapment defense in the manner urged by appellant. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). That fact alone would not dissuade us from examining the issue, for the entrapment defense does not arise from the United States Constitution (Id., 411 U.S. at 432-33, 93 S.Ct. 1637) but from public policy, concerning which the State judiciary is as competent an authority within its jurisdiction as the United States Supreme Court is within its. There are intimations of the objective entrapment test in Thomas v. State, 185 So. 2d 745, 747 (Fla.App.3rd, 1966) and, indeed, in our decision of Spencer v. State, 263 So.2d 282 (Fla.App.1st, 1972). But in this case we do not reach the issue of whether the test should thus be restated, for agent Cardwell’s conduct — consisting principally of offering to buy drugs while posing in a role that would make his offer plausible — cannot be condemned as a matter of law under the standard contended for by Kimmons. t

The trial court did not err in directing that Kimmons’ new sentence of imprisonment be served consecutively with the remainder of the term from which Kimmons had been paroled, after conviction of an offense not involving drugs, at the time of this offense. Kimmons argues that his parole had effectively terminated his prior sentence so that, as in Mayo v. State, 56 So.2d 547 (Fla. 1952), there was no sentence outstanding with which the present sentence might have been made to run consecutively. But Mayo involved a pardon. A parole continues and does not terminate a sentence. Sellers v. Bridges, 153 Fla. 586, 15 So.2d 293 (1943).

Affirmed.

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


author: PER CURIAM.

text:
    Winifred H. KIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. Y-43.
    District Court of Appeal of Florida, First District.
    Nov. 5, 1975.
    Winifred H. Kimmons, in pro per.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

This is an appeal from a denial of appellant’s petition for writ of habeas corpus. The case involves a question of whether or not appellant completed serving one of two consecutive twelve-year sentences prior to his release on parole which has subsequently been revoked and a disagreement between appellant and the Division of Corrections as to appellant’s projected release date. Based upon the record which was before the trial court, we would affirm, but both parties have filed material in this court which was not before the trial court and which does not correspond with the record which was before the trial court. The cause is, therefore, remanded to the trial court together with the aforesaid material which has been filed in this court with directions to reconsider the questions involved and hold a hearing, if necessary, to resolve such questions.

RAWLS, C. J., and McCORD and SMITH, JJ., concur.


author: MILLS, Judge. BOYER, Chief Judge McCORD, Judge

text:
    Glenn M. SURRATT, Appellant, v. Claude L. FLEMING and Priscilla Fleming, Appellees (Defendants).
    No. V-262.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1975.
    Rehearing Denied Dec. 2, 1975.
    H. Diane Breithaupt, Gainesville, for Appellant.
    Allison E. Folds, of Fagan, Crouch, Anderson & Folds, Gainesville, Jackson Bryan, of Bryan & Middleton, Palatka and P. Ause Brown, Jr., Gainesville, for Appel-lees.
   MILLS, Judge.

We temporarily relinquished jurisdiction of this case to the trial court for the entry of an order nunc pro tunc setting forth the facts upon which the trial court granted defendants’ motion to vacate and set aside a judicial sale of defendants’ property to appellant. Surratt v. Fleming, 309 So.2d 614 (Fla.App. 1st, 1975).

The trial court entered the requested order, however, the facts recited by the trial court had been resolved adversely to defendant by a previous order; therefore, there was no record to support the trial court’s findings of fact.

The trial court’s nunc pro tunc order recited that the sale was being set aside because the price bid and paid by appellant was such a small amount that it amounted to unjust enrichment.

Mere inadequacy of the price bid and paid is not sufficient to set aside a judicial sale, unless coupled with other circumstances having a tendency to cause the inadequacy. Maule Industries v. Seminole Rock and Sand Company, 91 So.2d 307 (Fla. 1957). The record before us contains no facts or circumstances which would support the trial court’s view.

Accordingly, the order vacating and setting aside the sale of 28 June 1972 and the certificate of title issued to appellant Sur-ratt on 10 July 1972 is reversed and this case is remanded to the trial court to reinstate the certificate of sale and certificate of title.

BOYER, C. J., concurs specially.

McCORD, J., dissents.

BOYER, Chief Judge

(concurring specially).

I concur in reversal.

McCORD, Judge

(dissenting).

In consideration of the findings of the trial judge, I do not consider that it was an abuse of discretion to vacate and set aside the judicial sale. I would require, however, as additional conditions (to those imposed by the trial judge) that appellees pay appellant interest on the purchase price paid by him and his reasonable attorney’s fee for this appeal.


author: BOYER, Chief Judge. SMITH, Judge

text:
    Jack S. GRAFF and Faith Investment Co., Inc., Appellants, v. R. L. McNEIL et al., Appellees.
    No. X-254.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1975.
    Rehearing Denied Dec. 5, 1975.

      Jack S. Graff of Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellants.
    Robert P. Gaines of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appel-lees.
   BOYER, Chief Judge.

Does the Florida “No-Fault Insurance Act” alter the established law relative to summary judgments? We answer in the negative.

Appellant Graff filed an unsworn complaint seeking damages for injuries allegedly suffered in an automobile accident. That complaint alleged permanent injuries. In answer to interrogatories propounded by the defendant (one of the appellees here) Graff stated that his medical expenses amount to $1.50 for aspirin and that no physician had been consulted incident to his injuries. Another interrogatory requested the name and address of any physician expected to testify that the plaintiff had sustained permanent injury within a reasonable medical probability, to which the plaintiff responded “Unknown to plaintiff at present time.” The defendant filed an affidavit that at the time of the subject collision he had in effect a policy of automobile insurance providing coverage as required by the Florida Financial Responsibility Act and personal protection insurance as required by the Florida Automobile Reparations Reform Act. In ruling on a defense motion for summary judgment the learned trial judge held that under the “no-fault” act a plaintiff may maintain a suit for damages only if he alleges and proves either medical expenses exceeding $1,000 or injuries permanent in character, that such allegations and proof are jurisdictional and that unless the record reflects a justiciable issue as to one of those factors the court is without jurisdiction. The court further found that “the defendants are entitled to have the plaintiff, Graff, raise an issue of fact by a proffer of evidence. He has not done so and the defendants are entitled to summary judgment.”

We emphasize that we here review the propriety of the entry of a summary judgment; not a judgment entered pursuant to directed verdict, not a judgment of dismissal and not a judgment on the pleadings. The distinctions are important.

So far as the procedural propriety of the entry of the summary judgment is concerned this case is very similar to Connell v. Sledge, Fla.App.1st 1975, 306 So.2d 194, wherein we said:

“Appellees filed a motion for summary judgment. No counter affidavits or other evidence were filed by appellant opposing that motion. A final summary judgment was thereupon entered by the trial judge in favor of the appellees, the dentist and his insurance carrier. In his judgment, the trial judge noted that appellant had failed to file any opposing affidavits as he was entitled to do under Rule 1.510(e) RCP.
“Summary judgments are governed by the provisions of Rule 1.510 RCP. Summary judgment proceedings may not be used as a substitute for a trial. (Farrey v. Bettendorf, Sup.Ct.Fla.1957, 96 So. 2d 889). A summary judgment proceeding is not a trial by affidavit or deposition. (Weinstein v. General Accident Fire & Life Assur. Co., Fla.App.1st 1962, 141 So.2d 318). A summary judgment may be granted only in cases where there is no issue of material fact. (Williams v. City of Lake City, Sup.Ct. Fla.1953, 62 So.2d 732). The allegations of the complaint (when the defendant moves for summary judgment) must be accepted, for the purposes of the motion, as true. (White v. Pinellas County, Sup.Ct.Fla.1966, 185 So.2d 468). The burden is upon the party moving for summary judgment to establish that there is no issue of material fact and that he is entitled to a judgment as a matter of law. (Hughes v. Jemco, Inc., Fla.App.1st 1967, 201 So.2d 565). If the pleadings, depositions, answers to interrogatories, admissions, affidavits and other evidence in the file raise the slightest doubt upon any issue of material fact then a summary judgment may not be entered. (Williams v. City of Lake City, supra; Crovella v. Cochrane, Fla.App. 1st 1958, 102 So.2d 307). A party against whom a summary judgment is sought is not required to file a counter affidavit in order to defeat the motion. (Williams v. City of Lake City, supra; National Exhibition Company v. Ball, Fla.App.2d 1962, 139 So.2d 489; Williams v. Board of Public Instruction, Sup.Ct.Fla.1952, 61 So.2d 493).
* * * * * *
“Although, as above stated, the burden is upon the party moving for summary judgment to establish the absence of any issue of material fact and the party against whom summary judgment is sought is not required to file any opposing affidavits, he has the right so to do and if the contents of the file, specifically the items referred to in Rule 1.510 RCP, establish no issue of material fact then it does become incumbent upon the party against whom the judgment is sought to demonstrate, by affidavit or otherwise, the existence of an issue of material fact in order to avoid having a summary judgment rendered against him.” (306 So.2d 196)

As above recited the unsworn complaint alleged an injury permanent in character. In order for the defendant to have been entitled to a summary judgment it was necessary for that allegation to have been negated under oath. No such negatory proof was before the trial court. Although the plaintiff’s answers to interrogatories may well have raised an inference or suspicion that his injuries were not permanent, a summary judgment may not be based upon inferences nor suspicions. The allegations of the complaint (when the defendant moves for summary judgment) must be accepted, for the purposes of the motion, as true. The burden is upon the party moving for summary judgment to establish that there is no issue of material fact and that he is entitled to a judgment as a matter of law. A party against whom a summary judgment is sought is not required to file a counter-affidavit in order to defeat the motion. The foregoing principles of law are not altered by the Florida Automobile Reparations Reform Act. We do not here consider whether the plaintiff’s complaint stated a cause of action under that act. Indeed such appears to be tacitly conceded by appellees. It is the allegata which establishes prima facie jurisdiction not the probata.

We have not overlooked Connolly v. Sebeco, Inc. However, the primary thrust of that case, and obviously the motivating factor which gave rise to the ultimate conclusion, is found in the statement:

“ * * * The plaintiff is obviously on the horns of a dilemma — either there was no negligence in maintaining the stairs [negligent maintenance of the stairs was the basis and gravamen of the plaintiff’s complaint against the defendant] or he [the plaintiff] was guilty of contributory negligence in using them.” (89 So.2d at page 484)

Under the circumstances recited in that case the plaintiff was in the untenable position of either admitting that the defendant was not negligent or that the plaintiff was contributorily negligent. Contributory negligence at that time having been a complete defense under the law of the State of Florida, it follows that entry of summary judgment for the defendant was, as held by the Supreme Court, proper. Such are not the facts sub judice.

Neither is this Court’s holding in Edgewater Drugs, Inc. v. Jax Drugs, Inc. here controlling. In that case, the writer of the opinion said:

“ * * * While a mere allegation in a pleading, unsupported by any evidence, cannot alone create a ‘genuine issue as to any material fact’ that would preclude the entry of a summary judgment * * * such an allegation may perform the function of informing the trial court as to the theory of a party’s claim or defense * * * (138 So.2d at pages 528 and 529)

That language was not intended to suggest that “a mere allegation in a pleading” may be ignored unless it is later supported by evidence. Indeed, a careful reading of the entire opinion reveals that the court there recognized that the allegations in pleadings form the issues and may not be resolved by summary judgment unless the allegations of the pleadings of the party opposing the motion for summary judgment are not supported by evidence under oath but are in fact negated by evidence under oath.

The principle was succinctly stated by our sister court of the Second District in Soper v. Stine, where it is said:

“On a motion for summary judgment, after the movant initially demonstrates the non-existence of factual issues, the non-moving party must make a showing, aside from his pleadings, that a fact issue can be generated, unless the undisputed facts would not entitle the movant to judgment as a matter of law. * * *” (184 So.2d at pages 894-895: Emphasis added)

In that case the court also said:

“Primarily, we base our decision on the failure of the plaintiffs to allege, or by affidavit, deposition, interrogatory, or other appropriate matter, to make any showing that the defendants failed to make payments on the real estate required by the purchase money note and mortgage.” (184 So.2d at page 893: Emphasis added)

By use of the conjunction “or” the court there clearly recognized that the issue as to the defendant’s liability, insofar as passing on a motion for summary judgment was concerned, could be raised by cither an allegation in the plaintiff’s pleadings or by affidavit, deposition, interrogatory or other appropriate matter.

Notwithstanding our above holdings, we deem it appropriate to observe that it would appear that the plaintiff would have been on safer ground, much time and expense would have been saved and this appeal (which has been carefully briefed and argued) would have been rendered unnecessary had appellant followed the simple expediency of filing an affidavit in support of his claim of permanent injuries. Nevertheless, appellant’s point has been preserved and properly presented to us, albeit expensively in time, money and judicial labors, and he is entitled under the laws of the State of Florida to have the point resolved by this Court.

Appellees further urge that in order to maintain an action under the Florida Automobile Reparations Reform Act based on an injury permanent in character it is incumbent upon an injured party to adduce testimony by a physician to that effect. However, it does not appear that such issue was ruled upon by the learned trial judge nor do we find it necessary for us to do so based- upon the record on appeal sub judice.

Reversed and remanded for further proceedings consistent herewith.

MILLS, J., concurs.

SMITH, J., dissents.

SMITH, Judge

(dissenting) :

I would affirm the summary judgment, as the Court did in Connell v. Sledge, 306 So.2d 194 (Fla.App. 1st, 1975), relied on by the majority. There is no shred of evidence giving rise to an inference that appellant Graff’s injuries are permanent. Strong contrary inferences arise from the evidence that, more than four months after the collision, he had treated his injuries with $1.50 worth of aspirin, had consulted no physician or medical facility and had no expert witness in mind to establish permanency. Those inferences are conclusive, at least for the present. The paper issue made by the pleadings docs not require the busy trial judge to keep the case at hand awaiting the emergence, who knows when, of countervailing evidence. Edgewater Drugs, Inc. v. Jax Drugs, Inc., 138 So.2d 525, 528-29 (Fla.App. 1st, 1962); Connolly v. Sebeco, Inc., 89 So.2d 482, 483 (Fla.1956); Soper v. Stein, 184 So.2d 892 (Fla.App. 2nd, 1966).

Appellant Graff, a lawyer handling his own case here and in the trial court, argued before us that plaintiff’s own testimony can make a case sufficient to go to the jury on the question of the permanency of an injury. To illustrate his point and perhaps to supply substance to his claim of permanency, lawyer Graff in arguing the case complained of his back and advised us that pre-existing arthritis when permanently aggravated by trauma can be treated only by aspirin. If as lawyer/litigant Graff insists his own testimony to the recited facts would make an issue on the question of permanency, it does not seem to me too great a burden for him — who, after all, had an accessible client and a free lawyer — to have recited those facts in an affidavit opposing the motion for summary judgment.

The time to ascertain whether the defendant in automobile personal injury litigation has immunity by reason of § 627.-737(1), F.S.1973, is at or near the outset, not after the already-burdened judicial system has carried the problematical case into trial. I would amend the judgment to render it without prejudice to the filing of a new action should evidence of permanent injuries appear within the limitation period or should appellant Graff otherwise acquire a right of action under § 627.737(2), F.S.1973. Smith v. United States Fidelity & Guaranty Co., 305 So.2d 216 (Fla.App. 1st, 1974); Lasky v. State Farm Ins. Co. 296 So.2d 9 (Fla.1974). And I would affirm the judgment as amended. Cf. Gulf Power Co. v. Stack, 296 So.2d 572 (Fla. App.1st, 1974).

      . Rule 1.510 RCP

      . Rule 1.480 RCP

      . Rule 1.420 RCP

      . Rule 1.140 RCP

      . See Dawson, v. Blue Cross Assaociation, Fla. App. 1st 1974, 293 So.2d 90; Bradham v. Haynes Enterprises, Inc., Fla.App. 1st 1975, 306 So.2d 568 and Forrest v. Carter, Fla.App. 1st 1975, 308 So.2d 141.

      .The procedural propriety of the entry of the summary judgment is the only issue presented squarely for our determination.

      . Thompson v. City of Jacksonville, Fla.App. 1st 1961, 130 So.2d 105

      . Sup.Ct.Fla.1956, 89 So.2d 482

      . Fla.App. 1st 1962, 138 So.2d 525

      . Fla.App. 2nd 1966, 184 So.2d 892

      . Please see McClurkin v. Parrish Volvo, Inc., Fla.App. 1st 1975, 317 So.2d 85

      . See, however, Gallub v. Del Vecchio, Fla. App. 3rd 1974, 301 So.2d 785


author: BOYER, Chief Judge.

text:
    Helen MADER, Appellant, v. In re ESTATE of Dicie W. ROWE, Deceased, Appellee.
    No. Y-211.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1975.
    Rehearing Denied Dec. 2, 1975.
    Frank D. Newman, Newman & Peterson, DeLand, for appellant.
    Lloyd A. Smith, New Smyrna Beach, for appellee.
   BOYER, Chief Judge.

Dicie W. Rowe died on February 8, 1973. Petition for Probate of her Will and for Letters Testamentary was filed by James D. Ownby, the Executor named in the Will. Lloyd A. Smith, Esquire, was designated as attorney of record for the Petitioner in the Petition for Probate of the Will and the same attorney signed the Notice to Heirs or Beneficiaries and various other pleadings filed in the proceeding. He was also designated as “attorney for estate” in the Notice of Probate which was published pursuant to F.S. 732.28(3). Prior to the issuance of Letters Testamentary a Petition for Revocation of Probate of Will was filed by Helen Mader, Appellant here. Although there is no certificate of service appearing on, nor appended to, that Petition the parties agree that on the date of the filing thereof a copy was served upon attorney Lloyd A. Smith, as attorney for James D. Ownby who, as aforesaid, had filed the Petition for Probate of Will and who was designated in the Will as Executor thereof. In due course, pursuant to motion, the learned Circuit Judge entered the Order here appealed reciting that “the court finds that the court lacks jurisdiction of said Petition for Revocation of Probate because of insufficient service of process of said Petition” whereupon said Petition was dismissed.

Although several points are argued in the briefs the only issue which merits our consideration is whether F.S. 732.30(2) requires service upon the personal representative personally as distinguished from his attorney of record. Appellee contends that it does. We hold to the contrary.

Rule 5.050(f), P.G.R. provides that “Unless ordered by the court, service of process is not necessary on any person who has filed a claim, pleading, election or other paper, or who has otherwise appeared in the same proceeding, notice, where required, being sufficient.” Section (g) of the same rule provides that “service of notice, pleadings, motions and other papers subsequent to obtaining jurisdiction of the party and when required by law or by these rules, other than process, shall be made, filed and certified to as provided in Rule 1.080, RCP, except when specifically provided otherwise.” Rule 1.080(b), R.C. P., provides in material part that “When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court.” That rule further provides that “Service by mail shall be complete upon mailing.”

Sub judice the personal representative was represented by an attorney. That personal representative filed the initial pleading in the cause and the court thereby obtained jurisdiction within the meaning of Rule 5.050(g), P.G.R. A copy of the Petition for Revocation was served upon the attorney of record for the personal representative. Although Letters Testamentary had not then been issued he was in fact designated as Executor in the Last Will and Testament which was attached to the Petition for Probate and was therefore “a personal representative” within the contemplation of F.S. 732.30(2). The trial court had jurisdiction of the Petition for Probate, the personal representative who signed that Petition, the Petition for Revocation and the signor thereof. The learned trial judge therefore erred in holding that he was without jurisdiction of the latter petition.

Reversed and remanded.

RAWLS and McCORD, JJ., concur.


author: McCORD, Judge.

text:
    Fred S. PALILLA, Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a corporation, Appellee.
    No. X-187.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1975.
    Rehearings Denied Dec. 4, 1975.

      Eugene Loftin, Jacksonville, for appellant.
    John I. Todd, Jr., Jacksonville, for ap-pellee.
   McCORD, Judge.

This is an appeal from an order denying appellant’s motion for rehearing of final judgment rendered in an action brought by appellee for interpleader and a cross-appeal by appellee.

Appellant was issued a policy of fire insurance by appellee for his dry cleaning business in Jacksonville. The policy provided for $45,000 coverage on the contents of appellant’s Market Street property and $15,000 coverage on appellant’s Justina Road property. (The policy also provided additional insurance on personal property of others with which we are not concerned on this appeal.) On February-13, 1972, while this policy was in effect, the Market Street property was partially damaged by fire and appellant filed a claim with appel-lee therefor. On February 26, 1972, the Market Street property had another fire which resulted in total loss of the property. Creditors of appellant also filed claims with appellee to proceeds of the policy. On December 8, 1972, appellee filed a complaint for interpleader requesting that the conflicting claims be determined in one proceeding. Appellant subsequently filed a counterclaim requesting that a judgment be entered for the losses sustained by him in each of the two fires and seeking reformation of the policy to reflect coverage of $62,-500 for contents of the Market Street property rather than $45,000 as shown by the policy. On October 24, 1973, appellee deposited $75,000 in a savings account pursuant to order of- the court which directed that said funds and interest accruing thereon be held in the account and that no disbursement be made except on order of the court. $45,000 of this $75,000 deposit was the face amount of the policy coverage on building contents.

By the final judgment and order on motion for rehearing, the trial court denied reformation of the policy thereby ruling that the insurance coverage on the contents was $45,000. The court further ruled that appellant was not entitled to recover an amount in excess of the face amount of the policy for both fires, and that appellant was not entitled to an award of interest on the face amount of the policy for the period prior to the aforesaid deposit of the $75,000. The court also made an award of attorney’s fees to appellant.

Appellant contends that the court erred in (1) not reforming the policy; (2) in ruling that payment of the limits of the policy for the fire loss occurring on February 26 removed the liability of appellee for the fire loss which occurred on February 13 thereby limiting the recovery for the loss on both fires to the face amount of the policy; and (3) in not awarding appellant interest. Appellee, by its cross-appeal, contends that the trial court erred in ordering payment by it of attorney’s fees for appellant in an interpleader action.

As to appellant’s first contention that the court erred in not reforming the policy, we find no error. The burden was upon appellant to prove that by reason of fraud, inequitable conduct or mutual mistake, the policy did not express the actual contract intended by the parties. The proof of such must be by clear, convincing and satisfactory evidence. See Allstate Insurance Company v. Vanater, Fla., 297 So.2d 293 (1974). The evidence presented did not meet this test.

We agree with appellant’s second contention. The policy contains the following clause:

“11. LOSS CLAUSE — Any loss hereunder shall not reduce the amount of this policy.”

Construction of this clause appears to be a case of first impression in Florida and other jurisdictions. Neither party has cited a case interpreting this clause, nor have we from our research found any. The law is clear that in the absence of such a clause the insurer is held liable at most, in case of successive losses by fire, for only the difference between the amount paid on the first loss and the amount named on the policy as its coverage. See 44 Am.Jur.2d, Insurance § 1663; Trull v. Roxbury Mut. F. Ins. Co., 57 Mass. 263 (1849); and Crombie v. Portsmouth Mut. F. Ins. Co., 26 N.H. 389 (1853). When, however, we consider the effect of the above loss clause contained in the policy in the case sub ju-dice, the only logical interpretation that we can arrive at as to the meaning of this clause is that where there are successive losses, each loss will be treated independently under the policy — full recovery may be had for each separate loss up to the full amount of the coverage under the policy. To construe it otherwise would reduce the amount of the policy after each loss which would be in violation of the above-quoted loss clause.

We find no error in the trial court declining to award appellant interest prior to the $75,000 deposit. Appellant did not seek interest in any pleading in the court below.

As to appellee’s contention that the trial court erred in awarding an attorney’s fee to appellant, we find no error. See Kurz v. New York Life Insurance Company, Fla.App. (1st), 181 So.2d 537 (1966), and Kurz v. New York Life Insurance Company, Fla.App. (1st), 168 So.2d 564 (1964).

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

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


text:
    James C. MILLER and Richard Miller, Appellants, v. John E. MILLER and Gina C. Miller, Appellees.
    No. 74-1544.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Rehearing Denied Dec. 2, 1975.
    Sepler & Sussman and Irma J. Hernán- - dez, Hialeah, for appellants.
    Peskoe & Fletcher, P. A., Homestead, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This is the second appearance of this cause before this court. See Miller v. Miller, Fla.App.1974, 293 So.2d 760. We are presented here with an appeal from a summary final judgment for the defendant, Gina C. Miller.

The controlling question is whether the plaintiffs are barred from recovery by the principle of res judicata. The record reveals that the claim of an invalid deed from John E. Miller to himself and his wife, Gina C. Miller, was litigated between the spouses in a prior cause for their divorce before the circuit court in 1972. The claim that the deed was invalid because the property was homestead property under the Florida Constitution of 1885 was decided there adversely to the husband, John E. Miller. In that suit, the present plaintiffs, James C. Miller and Richard C. Miller, who are the sons of John E. Miller, were permitted to intervene. The final judgment in that suit allowed the interve-nors to dismiss their petition.

We hold that the present plaintiffs, having been parties to the prior litigation and, therefore, having full knowledge of any claim that they had at that time and having failed to assert their claim, are now barred from such assertion against the defendant. See Ebersbach Const. Co. v. Charles Ringling Co., 1930, 100 Fla. 1270, 131 So. 148, and cf. Butler v. Bertram, Fla.App.1973, 281 So.2d 227. But see Dalhoff & Co. v. Coffman, 37 Iowa 283 (1873).

Affirmed.


text:
    BILL KELLEY CHEVROLET, INC., et al., Petitioners, v. John D. CALVIN, etc., et al., Respondents.
    No. U-145.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1975.
    Rehearing Denied Dec. 5, 1975.

      S. William Fuller, Jr., of Quinton, Leib & Lummus, Miami, for petitioners.
    Charles Knott, Tallahassee, Herman Grayson, Miami Beach, and Joseph C. Jacobs, of Ervin, Varn, Jacobs & Odom, Tallahassee, for respondents.
    J. Robert McClure, Jr., of McClure & Wigginton, Tallahassee, for amicus curiae.
   SMITH, Judge.

Four licensed Chevrolet dealers have petitioned for review of an order entered by the Director of the Division of Motor Vehicles licensing Marshall Berwick as a franchised Chevrolet dealer in Hollywood. Sec. 120.68, F.S.1973. Petitioners urge that the Director granted the license in violation of § 320.642, F.S.1973, providing:

“The department shall deny an application for a motor vehicle dealer license in any community or territory where the licensee’s [General Motors’] presently licensed franchise motor vehicle dealer or dealers have complied with licensee’s agreements and are providing adequate representation in the community or territory for such licensee. The burden of proof in showing inadequate representation shall be on the licensee.”

The Director, who made no detailed findings of fact when initially determining the matter, later supplied the essential findings at our request. Bill Kelley Chevrolet, Inc. v. Calvin, 308 So.2d 199 (Fla. App. 1st, 1974). We then held that the Director is authorized by the quoted statute to license an additional dealer in a territory in either of two circumstances: if the existing dealers have failed to comply with their franchise agreements or if the dealers are not providing adequate representation in their community or territory.

Chevrolet’s franchise agreement with each of its twelve existing dealers in the Miami multiple dealer area provides that the dealer’s territory of responsibility shall be virtually the entire inhabited area of Dade and Broward Counties. Because of the contiguous population and the facility of transportation and communication within the area, each of the twelve dealers has theoretical sales and service responsibilities throughout the territory, including the Hollywood area where General Motors and Berwick proposed, in this proceeding, that Berwick be licensed to operate a new agency.

Notwithstanding their coextensive privileges and responsibilities throughout the populous two-county area, each of the twelve existing dealers enjoys and is recognized by General Motors as enjoying a “geographic sales and service advantage” in the area adjacent to his dealership site. This simply means that, because of proximity and access, the Chevrolet dealer in that area is the one likely to be chosen by that area’s consumer population for Chevrolet sales and service.

On substantial evidence submitted by General Motors and Berwick, the Director held that none of the existing twelve dealers is close enough to the Hollywood population center to exploit a geographic advantage there, although several dealers enjoy business emanating from that area. The Director also found that the existing twelve are in full compliance with their agreements with General Motors, that each well and vigorously represents General Motors within the area of its geographic advantage and that the collective performance of all twelve provides Chevrolet more than satisfactory representation in the two-county metropolitan area, compared as a single unit to other territories. But the evidence shows and the Director found that neither the twelve collectively nor any of them individually is able to adequately represent Chevrolet throughout all parts of the territory, i. e., in the Hollywood area. The Director found that “there is a need for a new dealer [in the Hollywood area] if Chevrolet is to be represented adequately and not lose its percentage of the market in the community.”

We agree with the Director, General Motors and Berwick that § 320.642 does not foreclose additional Chevrolet dealer representation in the “community or territory” — the Miami multiple dealer area^ — -simply because each existing dealer now tends his own garden well and that the product of all twelve, taken together, is adequate by territorial standards. If within the territory described in the nonexclusive franchise agreements there remains an identifiable plot not yet cultivated, which could be expected to flourish if given the attention which the others in their turns received, we think the Director is justified in concluding that the cultivation of the territory is not adequate. We agree with the Director that it would be unreasonable and arbitrary to deny General Motors and its chosen applicant the right to proceed under these circumstances.

The purpose of § 320.642, F.S.1973, is to prevent powerful manufacturers from taking unfair advantage of their dealers by overloading a market area with more dealers than can be justified by the legitimate interests of the manufacturer and its dealers, existing and prospective. Plantation Datsun, Inc. v. Calvin, 275 So.2d 26 (Fla. App. 1st, 1973). Its purpose is not to foster combinations to prevent the introduction of dealer competition which is reasonably justified in terms of market potential. Antitrust laws have proscribed such combinations in the United States since 1890 and in this State since 1915. Tit. 15 U.S.C. § 1 et seq.; Ch. 6933, Fla.Laws 1915 as amended, Ch. 542, F.S.1973. Assuming as we do that the legislature in enacting § 320.642 intended “to serve the best interest of the people and the general welfare of the State” consistent with the purposes of the antitrust laws [Abood v. City of Jacksonville, 80 So.2d 443, 445 (Fla.1955)], we decline to transform the nonexclusive multiple dealer area of Dade and Broward into an exclusive territory in which twelve existing dealers are protected from border to border from further competition notwithstanding their inadequate representation of Chevrolet in an identifiable part of the territory.

The Director’s finding that Chevrolet’s representation in the territory is inadequate distinguishes this case from Hess Marine, Inc. v. Calvin, 296 So.2d 114 (Fla.App. 1st, 1974) and Barnard & Russell Ent., Inc. v. Calvin, 296 So.2d 115 (Fla.App. 1st, 1974). See Lynch-Davidson Motors, Inc. v. Calvin, 311 So.2d 792 (Fla. App.1st, 1975).

We have also considered, but we cannot sustain, petitioners’ other point of attack upon the Director’s order. The petition for review is

Dismissed.

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


text:
    Leron Jane FRIDAY, Appellant (Plaintiff), v. Lottie Mae MESSIER, Appellee (Defendant).
    No. X-481.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
    Rehearing Denied Dec. 5, 1975.
    J. Russell Hornsby, Orlando, for appellant.
    Patrick G. Kennedy, De Land, for appel-lee. t'j t
   PER CURIAM.

Upon considering the briefs, record and oral arguments, we find no reversible error. Accordingly, the final judgment is

Affirmed.

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


text:
    Glen A. CARROLL, Appellant, v. Vernell CARROLL, Appellee.
    No. Y-109.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1975.
    Rehearing Denied Dec. 2, 1970.
    W. Paul Thompson, DeFuniak Springs, for appellant.
    William Howard LaPort, Crestview, for appellee.
   SMITH, Judge.

Mr. Carroll appeals from an interlocutory order sustaining his wife’s choice of Okaloosa County as the forum for her petition for dissolution of their marriage. Appellant complains that the marriage was made in Alabama and was lived out in Holmes County where, therefore, it must have been irretrievably broken. He insists that the cause of action for dissolution did not arise in Okaloosa County, and that the proceeding is not maintainable there. Sec. 47.011, F.S.1973.

On the strength of Ms. Carroll’s affidavit, the trial judge held that the cause of action arose in Okaloosa and that venue was properly laid in that county. He therefore denied appellant’s “plea of privilege,” which was properly treated as a motion to dismiss for improper venue or to transfer. Rule 1.140, R.C.P.; Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100 (Fla. 1955). Ms. Carroll’s affidavit recites that she left the unhappy marital home in Holmes County, returned to her native Okaloosa three months before filing her petition and:

“Our marriage became irretrievably broken after I returned to Crestview, Okaloosa County, Florida. I left Holmes County on the 24th day of July, 1974, which was a Wednesday. On the 28th day of July, 1974, a Sunday, my husband, Glen A. Carroll came to my house in Crestview, Okaloosa County, Florida and demanded the keys to our Plymouth Fury automobile. I was afraid to refuse and gave him the keys. He was very angry and upset and took the automobile leaving me and my child without transportation. I then knew the marriage was completely broken and there was no way to get back together. I decided to get a divorce.”

Since 1829 plaintiffs have been privileged to avoid litigating in the home county of a resident defendant by filing in the county where the cause of action accrued. As amended, § 47.011, F.S.1973. Before 1971, when the legislature enacted laws for dissolution of marriages irrespective of fault (Ch. 71-241, Fla.Laws 1971; Ch. 61, F.S.1973), the venue question was typically whether a wife who had moved to the county of the forum, leaving both estranged husband and marital home elsewhere in Florida, could there maintain the divorce action over her husband’s objection. Despite judicial intimations that a wife might carry venue with her elsewhere when “of necessity” she left the marital home to escape the cruelty constituting her grounds for divorce, a closely divided Supreme Court held in 1951 that the plaintiff wife’s cause of action arose in the county where the asserted cruelty occurred, not in the county into which she was thereby driven. Copeland v. Copeland, 53 So.2d 637 (Fla.1951).

Yet it did not follow from Copeland that a spouse seeking refuge or new surroundings was invariably required to litigate in the inhospitable territory where the marriage was suffered and the other party remained. It was held in Bannerman v. Bannerman, 204 So.2d 234 (Fla.App. 3rd, 1967), cert. dism. 210 So.2d 220 (Fla. 1968) that a woman who left marital home and husband in Leon County could file for divorce in Dade because at least some of the acts of extreme cruelty, asserted as grounds for divorce, occurred in Dade. The divided District Court of Appeal held that the trial court was not required to compare the acts of cruelty done in Dade with “the more substantial” acts which occurred earlier in Leon.

Although the facts in the Bannerman divorce case might have justified minimizing that decision as precedent in a dissolution proceeding, the District Court of Appeal, Second District, carried the Bannerman principle root and branch into marriage dissolution proceedings when deciding Arnold v. Arnold, 273 So.2d 405 (Fla.App. 2nd, 1973). That decision of first impression was that the petitioning spouse may select a forum other than that of the marital home and the respondent’s residence if the events which finally and irretrievably broke the marriage took place in the county of the forum. Thus the court in Arnold sustained venue in Hillsborough County, notwithstanding that both the husband and the marital residence were in Polk, because Mr. Arnold followed his departing wife to Hillsborough and there “caused her undue embarrassment and threatened to do it again.” The court stated that it was in Hillsborough, “after these visits,” that the wife filed her petition. The implication plainly is that the last straw was laid on the marital back in Hillsborough, that Ms. Arnold there perceived the marriage was irretrievably broken and, consequently, that the cause of action arose there and not in Polk.

The Arnold decision supports Ms. Carroll’s choice of Okaloosa County as the forum. Ms. Carroll stated on oath that she knew her marriage was finally and irretrievably broken there on July 28, 1974, when her husband came to Crestview and took away the car in a display of anger and, as it turned out, reckless prelitigation venue tactics. Appellant argues that the Fury incident was inconsequential and that giving effect to Ms. Carroll’s “last straw” recital will invite charades in which, for venue purposes, each spouse attributes the breach to an event which happens to have occurred in the county of his or her choice. If Ms. Carroll may declare that Okaloosa is the forum because she perceives the marriage as broken there when she lost her Fury on July 28, why may not Mr. Carroll trump her play by announcing that the marriage was previously broken in Holmes County, where he lost his wife on July 24?

One of the admirable goals of the 1971 marriage dissolution legislation was eliminating, as far as can be, the systematic frauds and near-frauds that unhappy litigants, their counsel and the courts imposed on one another, under aegis of law, in finding fault as a prerequisite to relief. Jackson, “The No-Fault Concept, Grounds and Defenses,” Florida Family Law § 21.6 (2nd ed., The Florida Bar, 1972). Fault concepts poorly served human needs in marriage and divorce, and it sometimes seemed more decent to minimize or ignore those concepts — see Mr. Justice Terrell’s opinion in Chesnut v. Chesnut, 160 Fla. 83, 33 So.2d 730 (1948) — than to wrench them to fit the case. The debasing strategies that often accompanied fault-based divorce litigation taught us to beware rules of law whose substantial advantages are too easily-invoked by casual perjury. We would therefore not gladly embrace a venue rule that encourages a spouse seeking a dissolution of marriage to plant a foot in the county of choice, take a stance and declare, This is the place — not there, nor there, but here — where I knew my marriage was irretrievably broken.

This is not to say that Ms. Carroll’s cognition of the marriage breach was inconsequential. On the contrary, courts know what every marriage partner knows or intuits: that, just as marriage is both a physical arrangement and a working commitment of spirit, so an irretrievable break is not simply a final disruptive event piled upon others but also one’s recognition of hopeless alienation. It was therefore altogether meaningful for Ms. Arnold to say that she perceived, after her husband’s forays into Hillsborough County, that her marriage was broken, and for Ms. Carroll here to say, “I then knew [after July 28] the marriage was completely broken and there was no way to get back together.” But the question is not whether the law will admit the reality of that perception. The question rather is whether the law will give that subjective event conclusive effect in locating venue.

We conceive that to give determinative effect to Ms. Carroll’s stated perception of the broken marriage would invert the purposes of venue statutes which historically have preferred the convenience of resident defendants and have granted only limited choices to plaintiffs. As long as the legislature considers that there is a need to protect Holmes County residents from the real or imagined hazards of litigation instituted at an adversary’s whim or convenience in Okaloosa, Duval or Dade, we cannot sustain the petitioner’s choice of a distant forum, in a county other than that of the respondent spouse and the marital home, on grounds that the petitioner there decided that the marriage was hopelessly broken. The opportunity to abuse such a rule is too great; and, given the wide discretion and range of choices available to the trial judge in determining issues of rehabilitative and permanent alimony, the rewards for successful forum-shopping are too tempting.

But, Ms. Carroll will insist, the cause of action arose in Okaloosa County not only because she there perceived the irretrievable breach but also because that was the place where her husband offered a final insult by coming in anger for the Fury. It was the coalescence of both events in Oka-loosa, she argues, that gave rise to the cause of action. We regard Mr. Carroll’s momentary presence in Okaloosa County, on July 28, 1974, as having no significance in the resolution of the venue question. Ms. Carroll’s decision to seek dissolution might as well have resulted from an insulting letter or a telephone call received in Crestview, and her husband might have been anywhere when he wrote the letter or placed the call. Ms. Carroll’s decision might also have arisen in the fullness of time from mere separation, from some other cause, or from no identifiable cause. Indeed, Mrs. Carroll might as truly have perceived the marriage as broken had her husband come to Okaloosa County with a desperate request for reconciliation. It would surely be offensive to the purposes of the marriage dissolution laws to penalize Mr. Carroll for reconciliation efforts by subjecting him, on that account, to suit in Okaloosa. That Mr. Carroll evidently came to Okaloosa to retrieve the Fury rather than to restore the marriage cannot be made the critical factor in proceedings for judicial recognition that, despite good faith all round and irrespective of fault, the marriage is broken.

To protect the beneficial purposes of both the marriage dissolution legislation and the venue statute, we are required to look, not for the county or the scattered counties where the breach maybe said to have occurred, but to the single county where the marriage last existed. In that county the intact marriage was last evidenced by a continuing union of partners who intended to remain and to remain married, indefinitely if not permanently. Ordinarily the court will recognize that county naturally, as do the parties themselves, and the venue problem will be no more difficult than finding where the marriage partners called home. Courts have long asked that simple question when determining the domicile of succession. Smith v. Croom, 7 Fla. 81, 97-101, 154-59 (1857), reh. den. 7 Fla. 180. The harder cases inevitably arising in this day of atomic families and separate residences [Judd v. Schooley, 158 So.2d 514 (Fla. 1963)] will respond to a test like that employed to resolve domiciliary controversies in other contexts. See Wade v. Wade, 93 Fla. 1004, 113 So. 374 (1927), invoking the Roman doctrine, and Perez v. Perez, 164 So.2d 561 (Fla.App. 3rd, 1964). In what county were both partners last present with a common intention to remain married and in that place? There the marriage was broken, although recognition of the breach was postponed; there the cause of action for dissolution arose, within the meaning and application of § 47.011. We respectfully disagree with the decision to the contrary by the District Court of Appeal, Second District, in Arnold v. Arnold, 273 So.2d 405 (Fla.App. 2nd, 1973).

We recognize that our decision places 'more severe venue restrictions on the petitioning spouse whose marriage and partner are in Florida than on the comparatively new resident who left spouse and marital home in another state. Taken together, §§ 47.011, 61.021 and 61.061, F.S., permit a resident of six months to file against a nonresident spouse in any county he or she may choose. That is not an anomalous preference for the recently-arrived petitioner but rather an application of the legislature’s time-honored interest in protecting the venue privileges of resident defendants and its refusal to recognize those of nonresidents. Sec. 47.0.11, F.S.1973. The legislature is of course empowered to relax the effect of § 47.011 in dissolution proceedings, as indeed it has done in respect to applications for modification of alimony. Sec. 61.14(1), F.S.1973.

We remand this case with directions that it be transferred within the Fir^t Judicial Circuit to Holmes County where, under § 47.011, F.S.1973, it should have been filed.

Reversed.

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

      . Ms. Carroll makes no attempt to invoke the additional provision of § 47.011 allowing an action to be maintained in the county “where the property in litigation is located.” This provision is commonly understood to refer only to actions local in nature [e. g., Hendry Corp. v. State, 313 So.2d 453 (Fla.App. 2nd, 1975), which a marriage dissolution proceeding is not. Evans v. Evans, 141 Fla. 860, 194 So. 215 (1940) ; McGowin v. McGowin, 122 Fla. 394, 165 So. 274 (1936), affd. 131 Fla. 247, 173 So. 927 (1937). It has been held, however, that the presence of a child in the forum county is sufficient to sustain venue of an action involving his custody and support, despite objection by a defendant residing in a distant county. Dones v. Green, 212 So.2d 919 (Fla.App. 3rd, 1968), citing York v. York, 78 So.2d 406 (Fla.1955) (dictum).

      . Russell v. Russell, 86 Fla. 15, 96 So. 288 (1923) ; Edmundson v. Edmundson, 133 Fla. 703, 709, 182 So. 824, 826 (1938).

      . In Wildey v. Wildey, 30 Fla.Supp. 201 (Cir.Ct., Broward Co., 1968), the chancellor in a divorce suit filed in Broward refused to sustain venue there, where several of the acts of cruelty allegedly occurred but where neither spouse ever lived. Declining to apply Bannerman in those circumstances, the circuit judge ascertained from court files that Ms. Bannerman’s first complaint for divorce, on grounds of cruelty inflicted in Leon County, was denied by a Leon circuit judge for want of a prima facie case, and that her second complaint, held properly filed in Dade, had been substantially strengthened by allegations of the subsequent cruelty inflicted in Dade.

      . “People [in filing divorce complaints] usually allege only the barest of grounds where there is' no real contest. If there actually are no facts which constitute grounds, cruelty is the easiest lie to tell. Even when there are other grounds, cruelty is usually alleged in order to spare everybody the embarrassment of a sordid story of adultery or the unhappy details of alcoholism. As a result the judge often knows nothing of what really caused the marriage to break up. One lawyer, David Levine, has observed, ‘The trial court is precluded from making its determination on the basis of the whole truth and must reluctantly honor the will of the parties like some official vending machine. The result is that the court’s statement of facts, based as it is on minimal evidence, is often a restatement of the petitioner’s version of the marital strife.’ ” Wheeler, No-Fault Divorce, Ch. 1 “Anything but the Truth,” p. 7 (Beacon Press, Boston 1974).

      . One of the stated purposes of the 1971 act is “ [t] o promote the amicable settlement of disputes that have arisen between parties to a marriage.” Sec. 61.001(2) (b), F.S. 1973. The Act specifically authorizes the court in certain circumstances to order the parties to seek professional assistance in reconciliation. Sec. 61.052(2) (b)1.


author: SCHEB, Judge.

text:
    JACK ECKERD CORPORATION et al., Appellants, v. MICHELS ISLAND VILLAGE PHARMACY, INC., a Florida Corporation, Appellee.
    No. 75-677.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1975.

      Richard T. Bennison, MacKenzie, Cas-tagna, Bennison & Gardner, Clearwater, for appellant Eckerd Corp.
    Guy L. Kennedy, Jr., Acting City Atty., and N. S. Gould, Asst. City Atty., Clear-water, for appellant City of Clearwater.
    Allen P. Allweiss, St. Petersburg, and Jack F. White, Jr., Clearwater, for appel-lee.
   SCHEB, Judge.

This interlocutory appeal focuses on the question of whether a property owner, who does not allege a special injury, has standing to enjoin a municipality from issuing a building permit to allow construction which will vary from area standards required by the National Flood Insurance Program.

The appellee, Michels Island Village Pharmacy, Inc. (Michels) was plaintiff below. By its amended complaint it alleged the defendant, City of Clearwater (City) adopted the required standards to enable property owners to obtain federally sponsored flood insurance; then granted a variance as to elevations required of the defendant, Jack Eckerd Corporation (Eck-erd) in construction of its pharmaceutical building. Plaintiff further alleged that by authorizing construction of this building, with its lowest floor substantially below the 100 year flood level, the city had caused all property owners to lose their eligibility for flood insurance protection. Michels contends that it is a beneficiary of that flood insurance program, will suffer irreparable damage as a result of the city’s action, and seeks an injunction against the defendants, Eckerd and City.

The trial court denied motions to dismiss filed by Eckerd and the City and this interlocutory appeal followed. We reverse.

The principle which requires a showing of “special injury” by a plaintiff who seeks to enjoin the operation of a municipal ordinance is firmly implanted in the law of this state. This principle requires the plaintiff to allege its injury will be different in kind from that to be suffered by the public generally. In Boucher v. Novotny, Fla.1958, 102 So.2d 132, the Supreme Court of Florida said:

We have on a number of occasions held that where municipal officials threaten or commit a violation of municipal ordinances which produces an injury to a particular citizen which is different in kind from the injury suffered by the people of the community as a whole then such injured individual is entitled to in-junctive relief in the absence of an adequate legal remedy. With equal consistency, however, we have likewise held that in order to sustain a complaint for relief against threatened or consummated municipal action such as the creation of a nuisance or the blocking of a street the injury suffered by the complaining individual must be special and peculiar to himself and not merely different in degree from that suffered by the remainder of the community. In other words, the complaining citizen along with all other people in the community might suffer some injury and it may be that the extent of the injury suffered by the one complaining is greater in degree than that suffered by many other citizens. Nevertheless, the complaining citizen is without redress in equity unless he can allege and prove special damages peculiar to himself and differing in kind rather than in degree from the damages suffered by the people as a whole.

In Renard v. Dade County, Fla.1972, 261 So.2d 832, the Supreme Court reiterated that the principle in Boucher is still the law of this state. While this court in Save Sand Key, Inc. v. U. S. Steel Corp., Fla. App.2d 1973, 281 So.2d 572, concluded the “special injury” requirement no longer served as a viable expedient to the disposition of cases, the precedential value of that opinion was short-lived as the opinion was quashed in 303 So.2d 9 (Fla.1974). There, the Supreme Court announced its former decisions which require a showing of special injury still prevail. See Doherty & Co. v. Joachim, Fla.1941, 200 So. 238; Town of Flagler Beach v. Green, Fla.1955, 83 So.2d 598.

Michels attempts to distinguish its action from the principle enunciated in Boucher and U. S. Steel by contending it has become a third party beneficiary of the city’s ordinance, adopted to achieve flood insurance eligibility for property owners in coastal areas of the city. The rationale for the requirement of showing “special injury” is to protect public authorities from numerous suits brought by persons who have the same general interest thereby hampering public officers from performance of their duties. Askew v. Hold the Bulkhead-Save Our Bays, Inc., Fla.App.2d 1972, 269 So.2d 696. Such reasoning applies equally here. We find no basis to give appellee standing merely because it alleges a breach of a contractual right, when the plaintiffs in Save Sand Key, supra, were denied standing despite an alleged violation of a property right. With either type of injury, the question must be whether the plaintiff’s alleged detriment is different in kind from that of the general public.

Appellee Michels has failed to allege any special injury differing in kind from injury which may occur to the general public; therefore, its amended complaint does not allege a standing to sue, and should have been dismissed by the trial court.

Reversed.

McNULTY, C. J., and BOARDMAN, J„ concur.

      . 24 C.F.R. 1909-1918.

      . Sections 7-9, Code of the City of Clearwater.

      . The Supreme Court noted in its opinion that a proper “class action” is excluded from the rationale which supports the “special injury” requirement.


author: OWEN, Judge.

text:
    The BEACH CLUB, INC., Petitioner, v. DIVISION OF BEVERAGE, DEPARTMENT OF BUSINESS REGULATION, Respondent.
    No. 75-698.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Robert C. Salisbury, of Caldwell, Pacetti, Barrow & Salisbury, Palm Beach, for petitioner.
    Charles L. Curtis, Tallahassee, for respondent.
   OWEN, Judge.

Petitioner is a corporation organized under the laws of this state as a corporation for profit. Its application to the respondent for a Type II-C “Club” license provided for under Fla.Stat. § 561.20(7) (1973) was denied on the grounds that a corporation for profit is not qualified for this type beverage license. Petitioner seeks judicial review by certiorari pursuant to Fla.Stat. § 120.68 (Supp.1974).

Fla.Stat. § 561.20(7) reads in pertinent part as follows:

“(7) There shall be no limitation as to the number of licenses issued pursuant to § 565.02(4). However, any licenses issued under this section shall be limited to subordinate lodges or clubs of national fraternal or benevolent associations; golf clubs municipally or privately owned or leased; nonprofit corporations or clubs devoted to promoting community, municipal, or county development or any phase of community, municipal, or county development(e. s.)

Without question, petitioner is a corporation for profit which owns and operates a bona fide private club known as The Beach Club in Palm Beach, Florida, which club had been in continuous active existence and operation for a period of more than two years at the time of applying for the subject license. While one of the issues raised by the respondent in connection with this judicial review is whether the petitioner carried its burden of proof to show that its club was “devoted to promoting community . . . development”, we can, for the purpose of our decision and in order to focus clearly on the central issue involved, consider that petitioner’s club did qualify as one “devoted to promoting community development”. Thus, our decision here turns squarely upon our construction of the emphasized portion of Fla.Stat. § 561.-20(7) quoted above.

Our reading of the emphasized portion of Fla.Stat. § 561.20(7) leads to the conclusion that it was the legislative intent (1) that the word “nonprofit” modify or describe the word “clubs” as well as the word “corporations”, and, (2) that, whether the applicant be a “nonprofit corporation” or a “nonprofit club”, it must be “devoted to promoting community, municipal, or county development or any phase of community, municipal, or county development”. We think it would not be logical to ascribe to the Legislature the intent that a corporation devoted to promoting community development, in order to qualify, must be a “nonprofit corporation,” whereas a club devoted to promoting community development could qualify irrespective of whether it was a nonprofit club or a chib for profit. Yet this would be the result if we adopted the construction which petitioner advocates, namely that Fla.Stat. § 561.20(7) and Fla.Stat. § 565.02(4) should be read in conjunction as follows:

“Bona fide clubs, devoted to promoting community development, which have been in continuous active existence and operation for a period of not less than two years in the county where they exist should be entitled to an unlimited number of Type II-C licenses.”

We must reject that construction as rendering meaningless the word “nonprofit”, since it would then permit a corporation for profit to qualify for a club license simply by doing what petitioner has done, i. e., organize and operate a “club devoted to promoting community . . . development”.

Certiorari denied.

WALDEN, C. J., and REASBECK, JAMES, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    BRODY CONSTRUCTION, INC., a Florida Corporation, Appellant, v. FABRI-BUILT STRUCTURES, INC., a Florida Corporation, and Orlando Central Park, Inc., a Foreign Corporation, Appellees. BRODY CONSTRUCTION, INC., a Florida Corporation, Appellant, v. FULLER LUMBER COMPANY, INC., a Florida Corporation, and Orlando Central Park, Inc., a Foreign Corporation, Appellees. BRODY CONSTRUCTION, INC., a Florida Corporation, Appellant, v. MASTER DOOR COMPANY OF ORLANDO, INC., a Florida Corporation, Orlando Central Park, Inc., etc., Appellees.
    Nos. 74-1068, 74-1079 and 74-1605.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Rehearing Denied Dec. 3, 1975.

      R. Edward Cooley, of Graham & Mar-kel, P.A., Winter Park, for appellant.
    Lee Jay Colling and A. J. Stanton, Jr., of Colling, Latham, Stanton & Sanders, Orlando, for appellees-Fabri Built Structures, Inc., and Fuller Lumber Co., Inc.
    Patricia C. Fawsett, of Akerman, Sen-terfitt, Eidson & Wharton, Orlando, for appellee-Orlando Central Park, Inc.
    Charles J. Collins, Jr., of Steed & Collins, Orlando, for appellee-Master Door Co. of Orlando, Inc.
   DOWNEY, Judge.

Appellant Brody Construction, Inc., as general contractor, entered into a contract with appellee Orlando Central Park, Inc., as owner, for the construction of a large residential apartment complex. Disagreements arose between appellant and Orlando Central. As a result of those disagreements appellant sued Orlando Central, alleging among other things, that Orlando Central failed to pay certain materialmen, including Fabri-Built Structures, Inc., Fuller Lumber Company, Inc., and Master Door Company of Orlando, Inc.

While Brody’s action against Orlando Central was still pending, appellees Fabri-Built, Fuller and Master Door each filed suit against Brody for materials which were allegedly supplied to Brody and which were incorporated into the Orlando Central complex. Master Door’s suit also named Orlando Central as a defendant. Brody filed third party claims against Orlando Central in the Fabri-Built and Fuller suits and a cross-claim against Orlando Central in the Master Door suit. By these claims against Orlando Central, Brody sought to be indemnified for any amount if might be ordered to pay to any of said ma-terialmen. The court dismissed with prejudice the third party claims and the cross-claim. The court also denied Brody’s motion to consolidate the Fabri-Built, Fuller, and Master Door cases with Brody’s original suit against Orlando Central. These consolidated appeals are from the judgments dismissing Brody’s third party claims and cross-claim with prejudice and from the order denying Brody’s motion to consolidate.

Although the judgments under review do not specify any ground for their entry, it appears that the court based those judgments upon a conclusion that Brody was splitting its cause of action, since the disagreement among the parties in their arguments before us revolves around the question whether Brody’s filing of the third party claims and the cross-claim against Orlando Central constituted a splitting of its cause of action.

The rule against splitting causes of action is designed to prevent a multiplicity of suits. Thus, if the splitting of a cause of action does not result in a multiplicity of suits, the reason for the rule does not exist, and the rule becomes inapplicable. Gaynon v. Statum, 151 Fla. 793, 10 So.2d 432 (1942). Since the materialmens’ suits were already pending, appellant’s attempt to file the third party and cross-claims did not result in a multiplicity of suits and there was no reason to invoke the rule in this case. Stanley Builders, Inc., v. Nacron, Fla.1970, 238 So.2d 606.

The actions by the materialmen against Brody on the one hand and by Brody against Orlando Central on the other involve, among other things, the same materials. In the event the materialmens’ claims for payment are denied because the materials are defective, such denial would effectively insulate both Brody and Orlando Central from liability for payment of those claims only if Brody’s third party claims and cross-claim are allowed in the materialmens’ cases. However, if Brody’s third party claims and cross-claim are not allowed in the three materialmens’ cases, the defense of defective materials might be successfully asserted by Orlando Central in Brody’s action against Orlando Central, but unsuccessfully asserted by Brody in the three materialmens’ cases. This would be manifestly unjust. Thus, it appears to us that these circumstances require reversal of the judgments under review.

Appellant also contends the denial of its motion for consolidation was error. However, the consolidation of actions ordinarily rests in the sound discretion of the court, 1 Fla.Jur., Actions, § 36, and appellant has failed to demonstrate abuse of that discretion.

Accordingly, we reverse the judgments appealed from and remand the causes with instructions to reinstate Brody’s third party claims and cross-claim.

CROSS and OWEN, JJ., concur.


text:
      The SCHOOL BOARD OF LEE COUNTY, Florida, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION et al., Respondents.
    No. 75-1286.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.
    Motion for Clarification Granted Nov. 11, 1975.
    Harry A. Blair, P.A., Fort Myers, Hogg, Allen, Ryce & Norton, P.A., Coral Gables, for petitioner.
    Patricia A. Renovitch, Tallahasse, for respondent Public Employees Relations Commission.
    Ronald Gustav Meyer, Tampa, for respondent TALC.
    Joseph S. Durkin, Coral Gables, for respondent United Teachers of Lee.
   The attorney for respondents, The Florida Public Employees Relations Commission, having filed a Motion to Dismiss this Petition for Writ of Certiorari, upon consideration, it is

Ordered that said Motion be and the same is hereby granted.


text:
    The SCHOOL BOARD OF LEE COUNTY, Florida, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION et al., Respondents.
    No. 75-1286.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1975.
    Harry A. Blair, P.A., Fort Myers, Hogg, Allen, Ryce & Norton, P.A., Coral Gables,. for petitioner.
    Patricia A. Renovitch, Tallahassee, for respondent Public Employees Relations Commission.
    Ronald Gustav Meyer, Tampa, for respondent TALC.
    Joseph S. Durkin, Coral Gables, for respondent United Teachers of Lee.
   This Court having previously dismissed the above-styled petition for writ of certio-rari and petitioner having filed a Motion for Clarification, upon consideration, it is

Ordered that said Motion for Clarification be and the same is hereby granted and the order of dismissal entered on October 15, 1975, 322 So.2d 63, is hereby amended to be “without prejudice to petitioner’s asserting its administrative remedies by obtaining a ruling from the Public Employees Relations Commission.”


author: McCORD, Acting Chief Judge. McCORD, Acting Chief Judge.

text:
    STATE of Florida DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. STATE of Florida CAREER SERVICE COMMISSION et al., Respondents.
    No. Z-32.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1975.
    On Rehearing Dec. 2, 1975.

      Edwin E. Strickland and Enoch J. Whitney, Tallahassee, for petitioner.
    Dave Kerns and Ben R. Patterson, Tallahassee, for respondents.
   McCORD, Acting Chief Judge.

Respondent Pravin J. Parekh, an employee of petitioner, filed an appeal before respondent Career Service Commission from his discharge by petitioner. Petitioner here seeks a writ of prohibition to prevent respondents, the Career Service Commission and the State Personnel Director, from requiring certain employees of petitioner to appear in response to subpoenas for discovery depositions in the appeal proceedings. The subpoenas were issued by the State Personnel Director rather than by the Career Service Commission. We issued rule nisi and have considered respondents’ return and the briefs and oral arguments of the respective parties.

Petitioner contends that the Career Service Commission and the State Personnel Director have no authority to order depositions in the proceeding before the Commission. We disagree with petitioner’s contention as to the authority of the Commission in such respect but agree that the State Personnel Director does not have such authority. § 120.58(1)(b), Florida Statute 1974 Supplement, (the new Administrative Procedure Act) provides as follows:

“An agency, or its duly empowered presiding officer, or a hearing officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas upon the written request of any party or upon its own motion, and to effect discovery on the written request of any party by any means ávailable to the court and in the manner provided in the Florida rules of civil procedure.” (Emphasis supplied.)

The foregoing statute only authorizes an agency or its duly empowered presiding officer or a hearing officer to issue subpoenas. The subpoenas to the witnesses whose depositions are desired in the cause were not issued pursuant to the authority granted by the above statute to the agency (the Career Service Commission), its duly empowered presiding officer or a hearing officer but they were issued by the State Personnel Director. The statute does not confer such authority upon the State Personnel Director. We do not consider this circumstance sufficient to issue a writ of prohibition. We believe that with this clarification subpoenas which have been issued will be cancelled and new subpoenas issued by the proper authority.

Petitioner contends that the new Administrative Procedure Act is not applicable to this proceeding before the Career Service Commission as that act did not become effective until January 1, 1975; that this proceeding was begun when respondent Parekh was dismissed by petitioner’s letter dated December 23, 1974, effective December 31, 1974. We cannot agree with this contention of petitioner. Respondent Parekh filed his appeal to the Commission on January 8, 1975. The filing of the appeal began the administrative adjudicative proceedings, and since they were begun after January 1, 1975, the new Administrative Procedure Act is applicable to them.

§ 120.58(1) (b) quoted above empowers an agency to effect discovery by any means available to the courts and in the manner provided by the Florida Rules of Civil Procedure. Petitioner contends that this attempt by the legislature to impose the Florida Rules of Civil Procedure on administrative agencies is an unlawful delegation of judicial power in violation of the separation of powers provided for in Article II, § 3 of the Constitution of Florida. Petitioner also contends that the Supreme Court has authority to adopt rules for practice and procedure only for the courts under Article V, Section 2, Subsection (a) of the Florida Constitution, and does not have authority to adopt rules for practice and procedure before administrative agencies, citing Canney v. Board of Public Instruction of Alachua County, Florida, 278 So.2d 260 (1973). We find no violation of the doctrine of separation of powers by the legislature’s action. In Can-ney the Supreme Court merely held that it could not promulgate rules of practice and procedure for administrative bodies (except in those instances where the Constitution or laws so provide). The rules of practice and procedure which the Supreme Court has adopted are for the courts but the legislature certainly has the power to make the same rules applicable to administrative proceedings. Such action is then legislative action and not the action of the Supreme Court. We find no constitutional prohibition against the legislature prescribing the rules of procedure for adjudicatory proceedings before administrative agencies.

Respondent Commission contends that petitioner lacks standing to seek a writ of prohibition in the instant case in that only the employees who were served with the subpoenas can seek to prohibit respondent Commission from requiring that their depositions be taken. The Commission relies upon § 120.58(2), Florida Statutes 1974 Supplement, in support of their contention. It provides as follows:

“Any person subject to a subpoena or order directing discovery may, before compliance and on timely petition, request the agency having jurisdiction of the dispute to invalidate the subpoena or; order on the ground that it was not lawfully issued, is unreasonably broad in scope, or requires the production of ir- ■ relevant material, but the decision of the agency on any such request shall not be proposed agency action governed by § 120.57.”

While the person to whom a subpoena is directed may seek to have it invalidated under the above statute, the statute does not provide that a party to the proceeding may not question the subpoena. In a somewhat analogous situation, the District Court of Appeal, Fourth District, in construing certain of the Florida Rules of Civil Procedure in Sunrise Shopping Center, Inc. v. Allied Stores Corp., Fla.App., 270 So.2d 32 (1972), held that a party to a proceeding, as well as a witness to whom a subpoena is directed, has standing to question the subpoena. We find in the case sub judice that petitioner, a party to the proceeding before the Career Service Commission, has standing to question the subpoenas issued in this cause. It is a fundamental right of a party to a proceeding to question the legality of any phase of the proceeding which may adversely affect it. The foregoing statute extends the right to question a subpoena also to the person su-poenaed.

The rule nisi heretofore issued is discharged and writ of prohibition is denied.

MILLS and SMITH, JJ., concur.

ON PETITION FOR REHEARING GRANTED

McCORD, Acting Chief Judge.

The petition for rehearing of respondents, Career Service Commission, the State Personnel Director and the Division of Personnel, Department of Administration, calls our attention to certain statutes and a rule of the Department of Administration which they contend authorizes the State Personnel Director to issue subpoenas for witnesses in connection with appeals of employees before the Career Service Commission. Upon reconsideration we agree. Section 110.081, Florida Statutes, empowers both the Department of Administration and the Career Service Commission “to administer oaths, subpoena witnesses, and compel the production of books and papers pertinent to any investigation of personnel practices or hearing authorized by this chapter.” The chapter covers the operation of the State Career Service System. Section 110.022, Florida Statutes, empowers the Department of Administration, through the Division of Personnel to adopt rules and regulations providing for appeals of employees in the Career Service. In addition, § 110.061(2) (a), Florida Statutes, provides in pertinent part as follows:

“Suspensions, dismissals, reductions in pay, demotions, layoffs and transfers.— * * * (2) (a) The department shall establish rules and procedures for the suspension, reduction in pay, transfer, layoff, demotion and dismissal of employees in the career service for cause and for the investigation and hearing of appeals by the career service commission on such actions.” (Emphasis supplied.)

Pursuant to the foregoing statutory authority, the Department of Administration adopted its Rule 22A-10.05 D. 6., Florida Administrative Code, which provides in pertinent part as follows :

“D. Upon receipt of an appeal from an employee the State Personnel Director shall: * * * 6. At the request of the Career Service Commission, subpoena witnesses and compel the production of books and papers pertinent to the appeal. . . "

We recede from that portion of our foregoing opinion which rules that the State Personnel Director does not have authority to issue subpoenas to witnesses for the Career Service Commission.

MILLS and SMITH, JJ., concur.


author: PEARSON, Judge.

text:
    FLORIDA EAST COAST RAILWAY CO., a Florida Corporation, Appellant, v. Ethel K. HUNT, Administratrix of the Estate of Russell G. Hunt, Deceased, Appellee.
    No. 74-1190.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Rehearing Denied Dec. 1, 1975.
    Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellant.
    Podhurst, Orseck & Parks, Colson & Hicks, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

The defendant, Florida East Coast Railway Company, appeals a final judgment entered upon a jury verdict for the plaintiff, Ethel K. Hunt, Administratrix of the Estate of Russell G. Hunt. The jury found Russell Hunt to have been 90% at fault and the Railroad 10% at fault in causing the accident that is the subject of this litigation.

The accident occurred when Russell Hunt drove his car into the side of an F. E. C. Railroad Company flatcar which was engaged in a switching operation and blocking a railroad crossing at N.W. 71st Street near N.W. 36th Court in Miami, Florida. The collision took place at about 6:30 in the evening just as it was getting dark. Mr. Hunt died as a result of the injuries sustained.

Florida law requires a railroad crew to place lighted fusees in the roadway when the crew is engaged in a switching operation from one-half hour after sunset to one-half hour before sunrise. The engineer of the train, Mr. Smith, and the conductor, Mr. Loftus, testified that lighted fusees had been placed prior to the accident. The switchman, Mr. Patterson, testified that the fusees had not been placed prior to the accident but that several were placed after the accident. He explained his prior contrary statement to the effect that fusees had been placed prior to the accident by asserting that he made the statement because he and two other members of the crew had agreed to “ . . . keep their stories together.”

The factual issue as to whether the fusees had been placed prior to the accident became the main issue in the trial. The Railroad in order to counter the damaging effect of Patterson’s testimony, attempted to offer the testimony of two Railroad employees to show that Patterson’s general reputation for truth and veracity was bad among his fellow employees at the Railroad. The two witnesses whose testimony was proffered were Mr. Loftus, mentioned above, and a Mr. Stack, who was Patterson’s railroad superintendent. The trial court sustained the plaintiff’s objection to the testimony upon the ground that such proffered testimony of the two witnesses was not admissible to show the general reputation of the witness Patterson. The ruling is assigned as ‘error and is the point most strongly urged on this appeal.

We hold that error does not appear because the general rule that testimony with regard to reputation for truth and veracity must be bottomed upon the reputation in the person’s community of residence and neighborhood is controlling.

See Nelson v. State, 1893, 32 Fla. 244, 13 So. 361; Stanley v. State, 1927, 93 Fla. 372, 112 So. 73, and Ecker v. National Roofing of Miami, Inc., Fla.App.1967, 201 So.2d 586. The defendant acknowledges this to be the general rule in Florida but urges that this State has recognized an exception to the rule in Hamilton v. State, 1937, 129 Fla. 219, 176 So. 89, and that the exception is applicable here.

In considering the law as to reputation witnesses, we initially point out that we fully concur and agree that Hamilton does state an exception to the general rule, where the proper circumstances exist. In that case, there was a showing of an unavailability of reputation witnesses from the community or neighborhood where the defendant lived and a further showing that the defendant was well known among the people with whom she worked. Upon appeal by the defendant, the Supreme Court held that the trial court should have allowed in as reputation witnesses the co-employees of the defendant. In the present case, however, there is no similar showing of an unavailability of reputation witnesses from the community or neighborhood where Patterson resided. We find, therefore, that a special problem is presented here. For, if we are to hold that Loftus and Stack should have been allowed to testify below as reputation witnesses, we are doing more than merely approving of the exception in Hamilton extending the general rule to include co-workers, but rather we would, in effect, be permitting persons to testify who are intimately involved in the very controversy being litigated, and who have vested interests in the outcome of the trial. To allow Loftus to testify that Patterson's reputation at work for truthfulness was bad would set a poor precedent in the law. Loftus would be bound in on all sides. That is to say that were he to testify that Patterson’s reputation for truthfulness at work was not good, he would, of course, simply be stating obliquely that Patterson’s testimony about the lack of fusees displayed prior to the accident is untrue. Naturally, such testimony would be self-serving inasmuch as Loftus was himself a party to the alleged agreement that Patterson referred to. On the other hand, were Loftus to testify the other way and laud Patterson’s reputation at work for truthfulness, he would then be as much as telling the jury that Patterson was correct in his testimony and that his story was true. Similar arguments can be made concerning the proffered testimony of the Railroad Superintendent, R. F. Stack. Though not a party to the alleged agreement of the employees to keep their stories together, Stack’s position with the Railroad and his connections with the various principals and witnesses in the controversy place him in a posture not too much better than Loftus.

We note with interest, however, the contrary view taken in two very similar cases brought to our attention by the appellant. See Atlantic & B. R. Co. v. Reynolds, 1903, 117 Ga. 47, 43 S.E. 456, and Brotherhood of Railroad Trainmen v. Vickers, 1917, 121 Va. 311, 93 S.E. 577. From the reasoning in the Brotherhood of Railroad Trainmen case, we have inferred that our discussion set out above may be viewed as actually going to the question of “credibility” rather than to the question of “competency” to testify. Though we find merit in such reasoning, we nonetheless are more concerned with the intended and desired results to be gained from the testimony of reputation witnesses, that is, the gathering of evidence as to a person’s “general reputation” in his or her “community” or “neighborhood.” The rule, as we view it, is not one to be applied, relative to one’s “working community,” in too restrictive a manner so as to confine reputation testimony to particular co-employees. In other words, where there are close ties, as here, between the reputation witnesses and the matter in controversy, testimony relied on to ascertain the nature of one’s “general” reputation in his community or neighborhood would be reduced to testimony rendered not from co-employees in the more normally understood meaning of that term, but rather from very specifically placed co-employees, testifying not about someone’s “general” reputation, but rather about that reputation as viewed under the predominant cloud of the specific controversy at hand. Finally, the entire concept of “community” or “neighborhood,” from which Hamilton extended the general rule to one’s place of employment as well as one’s place of residence would be reduced to that particular part of the “community” or “neighborhood” upon which the litigation itself is focused. In short, the Hamilton decision does not apply under the present circumstances.

We now turn to the defendant’s remaining points, which are:

“Whether the lower court erred in failing to apply the doctrine of comparative negligence to the plaintiff’s motion to tax costs;”
and
“Whether the lower court erred in failing to grant the defendant’s motion for judgment notwithstanding the verdict when it appeared that the jury found the plaintiff’s decedent to be 9 times more negligent than the defendant.”

Having considered the arguments presented us, we find that neither point presents reversible error. As to the first point, see Spicuglia v. Green, Fla.App.1974, 302 So.2d 772; as to the second point, see Hoffman v. Jones, Fla.1973, 280 So.2d 431, 439.

Affirmed.

      . Fla.Stat. § 357.08.