author: NATHAN, Judge.

text:
    Harold R. GARCIA, Representative father and next friend of Elsa Garcia, a minor, Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 75-508.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Rehearing Denied March 23, 1976.

      Robyn Greene, Luis Stabinski and Norman Funt, Miami, for appellant.
    Spencer & Taylor, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   NATHAN, Judge.

Plaintiff, Harold R. Garcia, representative father and next friend of Elsa Garcia, a minor, appeals from an order dismissing his complaint against defendant Allstate Insurance Company for failure to state a cause of action.

Garcia filed a complaint for a declaratory decree alleging that he had uninsured motorist coverage with Allstate, that an uninsured motorist struck his daughter, that Allstate maintains that Garcia’s uninsured motorist coverage is $10,000/$20,000 on each of his two automobiles and that Allstate offered $20,000 in settlement, which is what it claims to be the policy limit. Garcia sought to have the court determine that by virtue of Chapter 71-88, Laws of Florida, he is entitled to uninsured motorist coverage in the same limits as his bodily injury liability coverage, $100,000/$300,000 on each of his two automobiles, or a total of $200,000/$600,000. Allstate filed a motion to dismiss for failure to state a cause of action. Following a hearing, the trial court entered an order dismissing the complaint on grounds that,

“ . . . said Amended Declaratory Action fails to state a cause of action and the face of the plaintiffs’ Complaint showing that the insurance policy providing uninsured motorist limits of $10,000 per person and . $20,000 per accident is not less than the requirements of the Florida Financial Responsibility Law and is in an amount up to the amount of the liability limits shown thereon and the face of the plaintiffs’ Amended Declaratory Action does thereby show that the referred to insurance policy is - in full compliance with F.S. 627.727 as amended by Chapter 71-88, Laws of Florida; and no justicia-ble controversy therefore exists ...”

On appeal, Garcia contends that (1) the trial court erred in dismissing the action without giving him a declaration of the amount of his uninsured motorist coverage, and (2) since he never rejected any portion of his uninsured motorist coverage, he was entitled to uninsured motorist coverage in the amount of his bodily injury liability coverage under Chapter 71-88, Laws of Florida.

As to Garcia’s first point, we treat the order granting Allstate’s motion to dismiss the complaint for declaratory relief as a declaratory judgment under § 86.011, Fla.Stat. In its order of dismissal, as recited above, the trial court did make a declaration of the rights of the parties. Even though the court s interpretation is adverse to the plaintiff it is nevertheless a declaration of rights. See Gates v. City of Jacksonville, Fla.App. 1973, 278 So.2d 645.

As to the second point, we are of the opinion that Chapter 71-88 simply added a maximum limitation in uninsured coverage. Previously, the statute (§ 627.0851, Fla.Stat., 1969) required limits “not less than” the financial responsibility limits and was silent as to the limits that could be provided in excess of the financial responsibility limits. Then, Chapter 71-88 added “and in an amount up to” the liability limits (§ 627.727, Fla.Stat., 1971), and inserted maximum limitation. Any coverage inbe-tween the financial responsibility limits and the liability is in full compliance with the statute.

“In the interpretation of statutes, a court should be astute in avoiding a construction which may be productive of much litigation and insecurity, or which would throw the meaning or administration of the law, or the forms of business, into hopeless confusion or uncertainty.” 73 Am.Jur.2d, Statutes, § 269.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Heriberto MARTINEZ, Appellant, v. OLD SECURITY CASUALTY INSURANCE COMPANY and Allstate Insurance Company, Appellees.
    No. 75-539.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Rehearing Denied March 3, 1976.
    Alfred D. Bieley, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl, Spencer & Taylor, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff appeals a summary final judgment entered in favor of defendant Allstate Insurance Company in his suit to recover benefits under policies issued by Allstate and Old Security Casualty Insurance Company.

Plaintiff, Heriberto Martinez, was a passenger in an automobile owned and operated by Georgina Tano. Georgina’s car was struck from behind by another vehicle whose driver left the scene of the accident. At the time, Georgina’s vehicle was insured by defendant Allstate Insurance Company and plaintiff’s vehicle, although not involved in the accident, was insured by defendant Old Security Casualty Insurance Company. Following the accident, plaintiff sued both insurers for PIP benefits under the Florida Automobile Reparations Reform Act [§ 627.727, Fla.Stat., F. S.A.]. The trial judge granted defendant Allstate’s motion for summary judgment.

Plaintiff primarily contends that the trial judge erred in entering summary judgment for Allstate because, as a passenger, he is entitled to the PIP benefits under the driver’s insurance policy. We cannot agree.

We find that § 627.736(4) (d), which reads in pertinent part as follows, to be dispositive of this issue:

“(d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
;fc jfs ^ H*
“4. Accidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle or, if a resident of this state, while not an occupant of a motor vehicle or motorcycle, if the injury is caused by physical contact with such motor vehicle, provided the injured person is not himself:
“a. The owner of a motor vehicle with respect to which security is quired under §§ 627.730-627.441,

In this case it is undisputed that plaintiff is not a resident or relative of the household of Georgina Taño and that plaintiff owned a vehicle as to which security is required under § 627.736, Fla.Stat., F.S.A. Thus, it is apparent that plaintiff, owner of a vehicle subject to the Florida Automobile Reparations Reform Act, is not entitled to PIP benefits under defendant Allstate’s policy.

We find plaintiff’s second point on appeal without merit.

Affirmed.


text:
    Nathan VLOCK and Sol Lerner, et al., Appellants, v. Jerry CAPODILUPO, Appellee.
    No. 75-403.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    Rehearing Denied March 10, 1976.

      Shalle Stephen Fine, Miami, for appellants.
    Horton, Perse & Ginsberg, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendants appeal a judgment for $128,000 plus interest and attorney’s fees entered in favor of the plaintiff'in an action to recover the outstanding balance due on a promissory note.

Capo Properties, Inc. had a building site, architectural plans, specifications and financing from Flagler Federal Savings & Loan Association for the construction of a luxury highrise condominium on Miami Beach. Plaintiff, Jerry Capodilupo, president and 30% stockholder of Capo Properties, approached defendants Vlock and Lerner and interested them in taking over the project for the total sum of $278,000. On December 2, 1968, the parties entered into a deposit receipt agreement wherein defendants contracted to pay $100,000 in cash and execute a promissory note for $178,000. It was further agreed that Capo Properties was to receive 50% of the profits and the defendants 50%. On December 18, defendants executed the promissory note secured by a purchase money mortgage to Capo Properties. The note provided that defendants pay $50,000 of the principal on March 5, 1969 and the remaining $128,000 on October 15, 1969. Subsequently, Capo Properties assigned its interest in the note to plaintiff. Defendants expected the cost of the project to be about $1,-100,000; however the construction costs exceeded this expectation, and the defendants encountered financial difficulties causing Flagler Federal, the first mortgage lender, to take over the project for the purpose of completing it. Plaintiff then entered into an agreement with Flag-ler Federal transferring his mortgage lien to the proceeds of the condominium sales made by Flagler Federal. In addition, plaintiff, in November 1969, entered into an agreement with defendants whereby he agreed to forbear from bringing any action against them until it could be determined whether or not the note could be paid out of the proceeds from the sale of the condominium units. When it became apparent that plaintiff would not realize the monies due on the note, he filed the instant law suit for recovery of the $128,000 balance, interest from October 15, 1969, and attorney’s fees. Defendants answered and pled that plaintiff deliberately misrepresented that the cost of construction would be $1,100,000 when, in fact, the building cost $1,400,000 to complete. The cause proceeded to trial and at the close of plaintiff’s case, defendants moved to amend the pleadings to conform to the evidence and to apply the Balloon Mortgage Statute [§ 697.05, Fla.Stat., F.S.A.]. The motion was denied. After the trial concluded, judgment was entered for plaintiff for the $128,000 due on his note, plus interest in the amount of $41,169.31, and attorney’s fees of $16,916.93. This appeal followed.

Defendants contend that they are entitled to have the Balloon Mortgage Act applied to the note in question. We cannot agree.

§ 697.05, Fla.Stat., F.S.A. reads in pertinent part:

“697.05 Balloon mortgages; scope of law; definition; requirements as to contents; penalties for violations; exemptions
“(1) Any conveyance, obligation conditioned or defeasible, bill of sale or other instrument of writing conveying or selling real property for the purpose or with the intention of securing the payment of money, whether such instrument be from the debtor to the creditor or from the debtor to some third person in trust for the creditor, shall be deemed and held to be a mortgage, and shall be subject to the provisions of this section.
“(2) (a) Every mortgage in which the final payment or the balance due and payable upon maturity is greater than twice the amount of the regular monthly or periodic payment of the said mortgage shall be deemed a balloon mortgage, and shall have printed or clearly stamped on such mortgage: THIS IS A BALLOON MORTGAGE AND THE FINAL PAYMENT ■ OR THE BAL■ANCE DUE UPON MATURITY IS _, TOGETHER WITH ACCRUED INTEREST, IF ANY, AND ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE.
******
“(3) Failure of a mortgagee, creditor or a third party in trus.t for a mortgagee or creditor to comply with the provision’s of this section shall automatically extend the maturity date of such mortgage in the following manner: The final payment of the balance due and payable is to be divided by the regular monthly or periodic payment and the quotient so secured is to be the number of months or periods the maturity date of the mortgage is extended. The mortgagor shall continue to make such monthly or periodic payments until the principal of the mortgage is paid. All such payments shall be credited to the principal only.”

Upon close scrutiny of this statute, it is clear that one of the essential elements of a balloon mortgage is regular monthly or regular periodic payments. The note in this case does not provide for regular monthly or periodic payments, but only one part payment of principal on March S, 1969 and the remainder of the principal on October 15, 1969. Thus, we conclude the Balloon Mortgage Statute is not applicable to the note in question and the trial judge properly denied defendants’ motion to apply this statute.

We also find appellants’ second point on appeal, that the November 1969 agreement to forbear was tainted by usury, to be lacking in merit.

Affirmed.

      . to be taken from the first draw from the construction loan and to be used by Capo Properties to satisfy a mortgage on the subject property held by the Carrier Bank of Miami Beach.


text:
    GOLDEN ISLES HOSPITAL, INC., Appellant, v. CONTINENTAL CASUALTY COMPANY et al., Appellees.
    No. 75-511.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    Rehearing Denied March 10, 1976.

      Smathers & Thompson and Jose R. Garcia-Pedrosa, Miami, for appellant.
    Knight, Peters, Hoeveler, Pickle, Nie-moeller & Flynn and Frederick B. Hart, Miami, Robert S. Zippin and James V. Do-lan, Fort Lauderdale, for appellees.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

In this appeal, the appellant, Golden Isles Hospital, advances the proposition of law that its excess insurer, Continental Casualty Company (CNA), is liable for the Hospital’s loss which is less than the primary insurance coverage specified because the primary insurer became insolvent after the occurrence of the accident out of which liability arose. We hold that under the terms of the Hospital’s policy, it was the Plospital’s duty to keep in force the primary coverage. We affirm.

The Hospital’s statement of its position is:

“Reduced to its simplest terms, the HOSPITAL’S position is as follows:
“(a) CNA insured the HOSPITAL for losses (up to $1,000,000) in excess of the ‘amount recoverable’ from primary insurance;
“(b) CNA’s umbrella excess liability attached at the time of entry of judgment against the HOSPITAL or at the time of satisfaction of that judgment (it matters not which), in accordance with its own |j 1(a) and (b) and |j 10;
“(c) At that time, the ‘amount recoverable’ by the HOSPITAL from its primary insurer was zero;
“(d) Hence, CNA is obligated to indemnify the HOSPITAL for its full $60,000 loss.”

It appears to us that the apparent fault in this argument is that it proposes that the court change the terms of the policy so that the excess insurer would be made the guarantor of the solvency of the primary insurer chosen by the policyholder.

The judgment is affirmed upon the rule that, as between two insurance companies, the collectibility of primary insurance is to be determined as of the date of the occurrence fixing liability. Therefore, it follows that as of the date of the accident there was a valid exclusion of liability upon Continental’s policy for the amount due from the primary insurer. See State Farm Mutual Insurance Company v. Vines, Fla.App.1966, 193 So.2d 180; Friedfeld v. Royal Indemnity Company, Fla.App. 1964, 167 So.2d 586.

Affirmed.


text:
    Manuel ALVAREZ, Appellant, v. The HERTZ CORPORATION, Appellee.
    No. 75-523.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    Rehearing Denied March 10, 1976.
    Horton, Perse & Ginsberg, Dubbin, Schiff, Berkman & Dubbin and Alan E. Greenfield, Miami, for appellant.
    Knight, Peters, Hoeveler, Pickle, Nie-moeller & Flynn, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant, the plaintiff below, urges that the trial court erred in entering a summary judgment for the defendant, Hertz, in an action where the facts revealed that Hertz left the keys in a truck that it owned. The truck, which caused injury to the plaintiff, was stolen from defendant’s fenced lot in which a watchman was constantly in attendance. We hold that the court correctly entered summary judgment upon the facts viewed in the light most favorable to plaintiff’s case. See Lingefelt v. Hanner, Fla.App.1960, 125 So.2d 325; Bryant v. Atlantic Car Rental, Inc., Fla.App.1961, 127 So. 2d 910; Clements v. Barber, Fla.App.1971, 258 So.2d 465.

Affirmed.


text:
    Lee WILLIAMS, III, Appellant, v. The STATE of Florida, Appellee.
    No. 75-937.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Rehearing Denied March 10, 1976.
    Quinn & Payne, Key West, for appellant.
    Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This is an appeal from a judgment and sentence of the Circuit Court of Monroe County entered pursuant to a jury verdict finding defendant guilty of the sale of heroin.

The several grounds relied on by the defendant for reversal have been carefully considered in the light of the record, briefs and controlling principles of law, and we have found no reversible error. The record discloses that the case was fully and fairly tried; that the verdict is supported by the evidence and that the several rulings of the trial judge challenged by the defendant did not, on the record and under the law constitute harmful error. Therefore the judgment and sentence appealed are affirmed.

Affirmed.


author: NATPIAN, Judge.

text:
    GREYHOUND RENT-A-CAR, INC., a Florida Corporation, Appellant, v. Aida CARBON and Manuel Carbon, Individually and as husband and wife, Appellees.
    No. 75-1223.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    Rehearing Denied March 10, 1976.
    Preddy, Haddad, Kutner, Hardy & Josephs and Glenn P. Falk, Miami, for appellant.
    West, Friesner & Goldman, Norman I. Segal, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATPIAN, Judge.

This is an interlocutory appeal by Greyhound Rent-A-Car, Inc., defendant in the trial court, from a partial summary judgment on the issue of liability in favor of the plaintiffs, Aida Carbon and Manuel Carbon, individually and as husband and wife.

On July 28, 1974, the Carbons, residents of New York who did not own a motor vehicle, rented a car in Dade County, Florida, from defendant, Greyhound Rent-A-Car, Inc. On that date, the vehicle driven by Manuel Carbon, in which Aida Carbon was a passenger, was involved in an accident. The Carbons, allegedly injured as a result of the accident, sued Greyhound for personal injury protection (PIP) benefits under § 627.733(4), Fla.Stat. By answer, Greyhound raised the defense that a rental vehicle is not a “motor vehicle” as defined by the Florida Automobile Reparations Reform Act, and, therefore, the plaintiffs were not entitled to PIP benefits. The Carbons filed a motion for summary judgment. Following a hearing, the court granted a partial summary judgment in favor of the plaintiffs on the issue of liability. In this interlocutory appeal by Greyhound from the partial summary judgment, the question presented is one of first impression in Florida: Whether a rental vehicle is a “motor vehicle” as defined in § 627.732(1), Fla.Stat.

Greyhound contends that the rental sedan involved in this case was used as a “public livery conveyance for passengers” and, therefore, was not a motor vehicle. Livery conveyance is defined in Black’s Law Dictionary, Revised Fourth Addition, 1968, at page 1084, as

“A vehicle used indiscriminately in conveying the public, without limitation to certain persons or particular occasions or without being governed by special terms.”

In Couch on Insurance, 2d, § 1040, it is stated that,

“To be a public conveyance requirés the indiscriminate use of the vehicle conveying the public and a holding out of the vehicle to the general public for the carrying of passengers for hire. . the vehicle is not a public conveyance where its use with respect to others is limited to particular persons and particular times and is governed by special terms.”

In our opinion, the vehicle rented by Manuel Carbon was not a public or livery conveyance since it was not subject to indiscriminate use by the general public without limitation to particular persons, particular times or special terms. The vehicle was rented to Manuel Carbon as an individual, and was governed by the special 'terms of the rental agreement. Therefore, we hold that a rental vehicle is a “motor vehicle.” The partial summary judgment is affirmed.

Affirmed.


text:
    David CHAYKIN, Appellant, v. Joan KANT et al., Appellees.
    No. 74-1332.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Rehearing Denied March 3, 1976.

      Horton, Perse & Ginsberg, Hansford D. Tyler, Jr., and David D. Phillips, Miami, for appellant.
    Cushman & Cushman, Miami, Robert W. Rust, U. S. Atty., Mary-Ella Johnson, Asst. U. S. Atty., Barry Kutun, Coal Gables, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

David Chaykin, plaintiff in the trial court, brought suit against Jon R. Kant and Terry A. Kant, the heirs of Samuel J. Kant, deceased, to foreclose a mortgage secured by a note in the sum of $50,000 given by the deceased on his home. The United States government was joined as a party defendant by virtue of an Internal Revenue tax lien which was filed against Samuel J. Kant.

Jon and Terry Kant defended the suit by alleging, in essence, that the note and mortgage were given to Chaykin by the deceased for the purpose of eliminating a possible Internal Revenue tax lien against Kant and thereby protecting his home from a forced sale. The mortgage was recorded. Defendants admit execution of the mortgage and note, but contend failure of consideration in' that, as a part of a scheme or device to defeat the potential tax lien, Kant did execute the note and mortgage to Chaykin and at the same time, gave Chaykin $50,000 in cash. Chaykin, in return, gave Kant a check for $50,000 and a satisfaction of mortgage, prepared by Kant’s lawyer, to hold until Kant desired to record it. Jon and Terry Kant counterclaimed for declaratory relief to declare and determine their rights and interest in the property. The trial court, without jury, after the conclusion of all the testimony, entered final judgment for Jon and Terry Kant, refused enforcement of the note and mortgage, and dismissed Chay-kin’s suit with prejudice, specifically finding that the defendants had proved their defenses. It is from this final judgment that Chaykin appeals, contending that defendants’ evidence was not sufficient to overcome the established validity of the mortgage and note and further that the defendants were estopped to attack the validity of the mortgage and note.

The record reflects that there was substantial competent evidence to support the findings and judgment of the trial court. On appeal, an appellate court does not weigh the evidence, for that is the primary function of the trial judge. Light v. King, Fla.App.1965, 179 So.2d 398; Bosem v. Bosem, Fla.App.1972, 269 So.2d 758, 761.

We do not agree with Chaykin’s contention that since the trial court found in its final judgment that the plaintiff had proved by competent evidence that there was a conspiracy between Samuel J. Kant and Chaykin, the plaintiff, Kant cannot be considered an innocent party and, therefore, Jon and Terry Kant are estopped to assert the invalidity of the mortgage and note. Chaykin, Samuel J. Kant and defendants, Jon and Terry Kant, were, in this case, in pari delicto. Chaykin, the plaintiff, was the party seeking foreclosure of the mortgage and possession of the home and, therefore, the court was correct in not aiding Chaykin by enforcing the mortgage but instead leaving Chaykin where he placed himself and dismissing his suit. Burton v. McMillan, 1907, 52 Fla. 228, 42 So. 879; Chesser v. Chesser, 1914, 67 Fla. 6, 64 So. 357.

Affirmed.


text:
    Jean Vedder WOOTEN et al., Appellants, v. Sylvester COLLINS, Appellee.
    No. 75-153.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Rehearing Denied March 3, 1976.

      Adams, George, Wood, Lee & Schulte, Jeanne Heyward, Miami, for appellants.
    Alldredge & Gray, Miami, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   NATHAN, Judge.

Defendants, Jean Vedder Wooten, Clyde C. Wooten, and United Services Automobile Association, appeal from a final judgment entered after jury trial resulting in a verdict for the plaintiff, Sylvester Collins, in an action arising out of an automobile accident which occurred in December, 1972, in Dade County, Florida. The vexatious questions presented for our determination in this case primarily involve the failure of a plaintiff, during trial of a suit brought against a defendant tort feasor, to meet the necessary threshold requirements to maintain such suit under the Florida No Fault Insurance Act (Florida Automobile Reparations. Reform - Act) ,

Pertinent portions of plaintiff's complaint with reference to damages alleged that he incurred medical bills and expenses in excess of $1,000 and/or suffered permanent injuries. Defendants answered the complaint, admitting the date, time and place of the accident, denied all other allegations of the complaint, and alleged the affirmative defense that plaintiff himself was negligent. Plaintiff filed a reply denying the affirmative defense. The cause proceeded to trial at which time plaintiff’s evidence established medical bills of only $609. There was a disputed issue of material fact as to whether the plaintiff received permanent injuries. At the conclusion of the plaintiff’s case, . the defendants moved for a directed verdict on the ground that plaintiff could not maintain an action against defendants because they were exempt from tort liability as plaintiff failed to meet the threshold requirements under the No Fault Insurance Act. The trial court held that the exemption from tort liability was jurisdictional and, therefore, the general denial in defendants’ answer was insufficient, and that the matter of threshold had to be pled by affirmative defense. The defendants then moved ore tenus to amend their answer to raise an affirmative defense of plaintiff’s failure to meet the threshold requirements of the No Fault Insurance Act. This the trial court denied. At the conclusion of all of the evidence, the defendants requested a jury instruction to the effect that if the plaintiff had not sustained a permanent injury, then the verdict should be for the defendants. The trial court refused to give the requested instruction. After the jury had returned a verdict of $4,500, the trial judge, sua sponte, propounded to the jury an interrogatory- asking whether or not the plaintiff had sustained a permanent injury. After being retired to consider such interrogatory, the jury found that the plaintiff had not sustained a permanent injury as a result of the accident. The trial court, then, over objection, entered a final judgment in favor of the plaintiff and denied defendants’ post trial motion to dismiss, motion to vacate and motion for new trial.

Defendants raise two points on appeal which are dispositive of this case. The first point directs to error by the court in refusing to instruct the jury that if they found that the plaintiff had not sustained any permanent injury as a result of the accident, their verdict should be for the defendants. Second, that the court should have granted defendants’ motion to dismiss and entered a judgment for the defendants after jury verdict where the evidence, as reflected in the special jury interrogatory, showed no permanency and, therefore, did not establish or maintain a cause of action.

In order to answer the questions raised by this appeal, we first must consider jurisdiction of the 'court to entertain the suit. 627.737(1), Fla.Stat., states:

“Every owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance, or use of such motor vehicle unless a person is entitled to maintain an action for pain, suffering, mental anguish, and inconvenience for such injury under the provisions of subsection (2).” (emphasis added)

Subsection (2) provides for the threshold requirements applicable to plaintiff in this case, namely medical expenses under 627.736(1) (a), exceeding $1,000 or permanent injury. From a reading of the language of the statute, the trial court was correct in holding that the court had no jurisdiction to entertain the suit under the statute as defendants were exempt from tort liability unless the plaintiff, by virtue of meeting the threshold requirements, was entitled to maintain a tort action against them. The plaintiff then, in order for the court to initially entertain a suit against the defendant tort feasors, must put into controversy by his complaint, in good faith, the requisite elements necessary to bring him within the provisions of the No Fault Insurance Act. Compare State v. City of Miami, 1933, 113 Fla. 280, 152 So. 6. It is apparent in the instant case that the plaintiff, in his pleadings, alleged in good faith, permanent injury.

The next question to be answered in this case is whether the defendants can raise the issue of the plaintiff’s right to maintain a tort action against them by a general denial or must it be raised by an affirmative defense. The trial court held that the question of whether the suit against a tort feasor is properly within the threshold requirements of the No Fault Insurance Act must be raised by affirmative defense.

While it would seem that the pragmatic approach to this question would be to require that matters be pleaded by affirmative defense under Rule 1.110(d) R.C.P., so that a plaintiff would be on notice of the issue on which the defendant relies, we cannot so hold because the law pertaining to the pleading of affirmative defenses requires that the burden is on the party asserting an affirmative defense to prove it, which would thus place the defendant in the posture of having to prove by a preponderance of the evidence that the threshold requirements were not met by plaintiff when the burden is and should be, on the plaintiff to prove the threshold allegations of his complaint. Also, affirmative defenses are pleas of confession and avoidance. They admit the facts of the opposing party’s complaint but raise some new matters which defeat the opposing party’s valid claim. Moore Meats, Inc. v. Strawn, Fla.1975, 313 So.2d 660. It is well established that if an affirmative defense is not pleaded, it is waived. Failure, then, by defendants to raise the affirmative defense of failure of the plaintiff to meet the threshold requirements, would produce the result of conferring by waiver, agreement or consent, jurisdiction of the subject matter. Jurisdiction of subject matter cannot be conferred by consent, failure to object or waiver. Wilds v. Permenter, Fla.App. 1969, 228 So.2d 408; Ringling Bros.-Barnum & Bailey Combined Shows, Inc., Fla. App.1974, 295 So.2d 314. We, therefore, hold that the trial court erred in ruling that the defendants’ denial by answer that plaintiff had met the threshold requirements, did not raise the jurisdictional issue of tort exemption under the No Fault Insurance Act.

The threshold issue thus having been raised by answer of the defendants, we now turn to defendants’ first point on appeal, the question of whether the court erred in not instructing the jury in accordance with the defendants’ requested charge that if they found that the plaintiff had not sustained any permanent injury as a result of the accident, their verdict should be for the defendants. It is well established that the parties to a suit have the right to have the court charge the jury on a particular instruction as to the law applicable to and supported by the facts in evidence introduced under the issues as formed by the pleadings. Seaboard Air Line Railway Company v. Kay, 1917, 73 Fla. 554, 74 So. 523; Fournier v. Lott, Fla.App.1962, 145 So.2d 885. In the instant case it affirmatively appears that a material issue of permanency was raised by the pleadings and evidence and, therefore, the court should have instructed the jury on the threshold requirements and the effect thereof to determine as a matter of fact whether such threshold requirements were met. Allstate Insurance Company v. Ruiz, Fla.App.1975, 305 So.2d 275. However, in view of the fact that the trial judge used good judgment in submitting a special interrogatory to the jury inquiring as to the existence or non-existence of permanent injury to the plaintiff, and the jury having found in the negative, the record shows that the court lacked jurisdiction over this personal injury action, and, therefore, in answer to defendants’ second point on appeal, the motion by the defendants for an order of dismissal should have been entered. Accordingly, the final judgment for the plaintiff is reversed and the cause is remanded to the circuit court with directions to enter an order of dismissal for want of jurisdiction, and assess costs accordingly.

Reversed and remanded with directions.

      . The No Fault threshold requirements are set out in § 627.737(2) Fla.Stat.


text:
    Lee Allen WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-715.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.

      Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant was found guilty by a jury on two counts of breaking and entering with intent to commit petit larceny. The proof of guilt was overwhelming. The single error urged by the defendant is that the court erred in denying defendant’s motion for a mistrial when a State’s witness, a police officer, disclosed that he had arrested the defendant upon a prior occasion.

The disclosure appears to have been inadvertent :

“Q. When did you first come in contact with Mr. Williams”
A. I don’t remember what date it was, one morning about nine o’clock I arrested him on a bench warrant.”

The curative instruction was full and prompt:

“Ladies and gentlemen of the Jury, you are instructed to disregard the answer of this witness insofar as he referred to an arrest of the Defendant. The Court will advise you that an arrest is not a conviction of any offense. That part of his answer you will disregard and not take into consideration in your deliberations in this case. The State may proceed.”

We hold that the error was harmless, See Warren v. State, Fla.1972, 270 So.2d 8; see also United States v. Constant, 501 F.2d 1284 (5th Cir., 1974).

. .,. ,


text:
    A. D., and H. A. P., juveniles, Appellants, v. The STATE of Florida, Appellee.
    Nos. 75-795, 75-925.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appel-lee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The two juveniles who are appellants here each appeals an adjudication of delinquency. The adjudications came at the close of a joint trial at which the juveniles were found guilty of buying, receiving or aiding in the concealment of stolen property. The only substantial question presented is the sufficiency of the evidence to support the adjudication. We hold that the record supports the adjudication.

Affirmed.


text:
    Gerald NICKLES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-822.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Phillip A. Iiubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
    Robert L. Shervin, Atty. Gen., and Steven D. Ginsburg, Legal Intern, for ap-pellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Singer v. State, Fla.1959, 109 So.2d 7, 29; Falcon v. State, Fla.1969, 226 So.2d 399; Sherman v. State, Fla.1971, 255 So.2d 263; United States v. Bursten, 5th Cir. 1971, 453 F.2d 605.


text:
    James LIEBLER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-859.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Rehearing Denied March 3, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appealing from his conviction, on a non-jury trial, of “unlawfully buying, receiving or aiding in the concealment of stolen property, well knowing the same to be stolen”, the appellant argues the court erred in denying his motion for acquittal and in finding and adjudging him guilty, contending the evidence was insufficient to establish the element of knowledge that the property was stolen.

“It is essential to a conviction for receiving stolen property that the evidence shall show to the exclusion of a reasonable doubt that the accused had knowledge that the property in question was stolen at the time he received it, or that the circumstances of the transaction were sufficiently suspicious to put a person of ordinary intelligence and caution upon inquiry.” Johnson v. State, 127 Fla. 100, 172 So. 708. See also Franklin v. State, 66 Fla. 213, 63 So. 418; Cortes v. State, 135 Fla. 589, 185 So. 323; Monteresi v. State, 160 Fla. 489, 35 So.2d 582. Cf. State v. Graham, Fla. 1970, 238 So.2d 618.

On consideration of this appeal we find no reversible error has been shown. There was substantial competent evidence to support the judgment of conviction. The circumstances of the transaction as revealed in the record were sufficiently suspicious to put a person of ordinary intelligence and caution upon inquiry as to the stolen character of the property involved. The question as-to proof of such element, based on the evidence, was within the province of the judge as the trier of the facts.

The judgment is affirmed.


text:
    Emmy Lou TIRONE, Appellant, v. Antonio TIRONE, Appellee.
    No. 75-1142.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Ellis Rubin and H. Lee Bauman, Miami, for appellant.
    Sibley, Giblin, Levenson & Ward, Miami Beach, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The order appealed here is entitled “Order On All Pending Motions.” The initial portion of this order provides as follows:

“THIS CAUSE came on to be heard, after due notice, on the ‘Husband’s Motion to Dismiss Wife’s Motion for Relief from Final Judgment and/or in the Alternative, for More Definite Statement’, the husband’s ‘Motion to Remove Exhibits’ and the husband’s ‘Contempt Motion and Notice of Hearing’ re: the execution of deeds as provided in paragraphs 3 and 4 of the Final Judgment and the tax matters contained in paragraph 7 of the Final Judgment; and at said hearing the parties each personally appeared, the wife, however, remaining in the Court’s ante-chamber claiming that she was nauseous; the husband’s attorney of record, Irving B. Levenson of the law firm of Sibley, Giblin, Levenson & Ward, and the wife’s attorney of record, Daniel Neal Heller; and H. Lee Bauman, associate of Ellis Rubin, the wife’s attorney who the Court finds does not have standing to appear, having failed to submit and have entered an order on his motion for substitution of counsel filed at the time of the hearing conducted in this cause on April 28, 1975, which was orally granted, conditioned upon Mr. Heller being paid as heretofore agreed, as evidenced by the record in this case, that is, by a mortgage on the home which is to become solely the property of the wife after conveyance to her of the husband’s half interest therein, as provided in paragraph 3 of the Final Judgment; . . .” (Emphasis added)
* * * % ‡ *

One of the things decided by the order is a denial of the wife’s motion for relief from final judgment filed pursuant to RCP 1.-540.

The thrust of the appeal is that the court may not deprive the wife of the right to have an attorney on a rule 1.540 motion because she has not paid the attorney who handled her initial cause. We hold that access to the courts may nob be conditioned upon actual payment to one’s attorney in a prior litigation. The extent to which a change of lawyers in pending litigation can be conditioned upon a security of the rights of the prior lawyer is governed by RCP 1.030(e). In representing a client, an attorney acts pursuant to a contract for personal services and, therefore, may be discharged by the client at any time with or without cause. See 610 Lincoln Road, Inc. v. Kelner, Fla.App. 1974, 289 So.2d 12. Therefore, the trial judge was in error in holding that the wife’s attorney had no standing to appear and, having so determined, was in error in proceeding to a final determination of that motion. Therefore, the order appealed is reversed insofar as it rules upon the motion for relief from final judgment, and the cause is remanded for further proceedings thereon.

Reversed and remanded.

HENDRY, J., dissents.


text:
    Gwenn Cantor GAMSE, Appellant, v. Edmond GAMSE, Appellee.
    No. 75-1292.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Rehearing Denied March 23, 1976.

      Richard Touby, Miami, for appellánt.
    Krongold & Bass, Miami, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

This interlocutory appeal is taken by Gwenn Cantor Gamse, the wife in these divorce proceedings from an order on mandate of this court and an order on motion for rehearing.

This case is before this court for the second time. Our opinion in the previous appeal, Gamse v. Gamse, Fla.App.1974, 291 So.2d 620, sets forth all of the relevant facts leading up to the 1968 divorce decree. The mandate states as follows:

“. . .in considering modification of the divorce judgment to decrease the size of the monthly payments of alimony, the trial court should take into consideration not only the husband’s income but also his capital assets and that the reduction of the income of the husband, in a substantial respect, may have been brought about voluntarily and not of necessity, with a view to thereby obtaining a reduction or avoidance of the alimony.”

The trial court entered an order on the mandate in which it made findings as to the reduction of Edmond Gamse’s income, and reduced the amount of alimony. Edmond then moved for a rehearing. The court denied the motion, but amended its order on mandate to reflect that there was a clerical error as to the amount of alimony, and ordered that a smaller amount be paid.

It appears that our previous opinion in this case, cited above, has been misconstrued not only by both parties, but also by the trial judge in failing to take additional testimony in considering the modification of the final divorce judgment. In so considering such modification, the trial court should take into consideration not only the husband’s income but also his capital assets and that the reduction of the income of the husband, in a substantial respect, may have been brought about voluntarily and not of necessity. ,

We, therefore, reverse and remand to the trial court with directions to take further testimony consistent with this opinion.

It is so ordered.


text:
    SELECTOURS, INC., a Florida Corporation, Appellant, v. NEW LIFE TRAVEL SERVICE, INC., a Florida Corporation, and William Vandecar, Appellees.
    No. 75-1370.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Adams, George, Wood, Lee & Schulte, Miami, for appellant.
    Korner & Sampson, Coral Gables, for appellees.
    Before PEARSON and NATHAN, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849.


text:
    FLORIDA KEYS BOYS CLUB, INC., et al., Petitioners, v. James C. PELEKIS et al., Respondents.
    No. 75-1544.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Edward C. Vining, Jr., Miami, for petitioners.
    Alfred Gustinger, Jr., Miami, for respondents.

      Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Asso-date Judge.
   PER CURIAM.

This interlocutory appeal is from an order requiring defendant, J. Bruce Vining, to make available for examination copies of his handwriting in a cause claiming forgery of a signature on a deed. The appeal was heard without objection to the propriety of the interlocutory appeal. We have, therefore, considered the appeal as a petition for writ of certiorari. The order appealed is, in part, as follows:

* * * * * *
“1. Counterdefendant’s motion to strike is denied.
2. Defendant-Counterclaimant’s motion to produce is granted as follows:
J. Bruce Vining is hereby required to appear at the Offices of Alfred Gustinger, Jr., 600 Concord Building, Miami, Florida on October 6th, 1975 at 2:30 p. m. and write ‘James N. Datton, James N. Patton, Joseph Boliuhuis, Joseph Bolinhuis’ 15 times each with his right hand and 15 times each with his left hand, that all parties may have present handwriting experts during said examination.
3. That in the event a handwriting expert for either party indicates further signatures and writings are needed to finalize a handwriting: evaluation, the Court may require further handwriting examples.
******

A prior opinion in this litigation gives the history of the case. This court held that the trial court erred in refusing to require J. Bruce Vining and Doreen Skinner to submit to a deposition and to produce examples of their handwriting. Upon the return of the cause to the trial court, James C. Pelekis, Gus G. Pelekis and John S. Moraites filed a motion entitled “Motion to Produce” in which the following was stated:

“COMES NOW the Defendant-Coun-terclaimant, JAMES C. PELEKIS, and moves the Court for an Order requiring the Defendant, J. BRUCE VINING to present himself and submit to a handwriting analysis by an expert to be selected by JAMES C. PELEKIS, and would respectfully show unto the Court as reason therefor that a handwriting expert testified in this matter during the last hearing that an examination of this nature would be required to properly prepare and present the Defendant-Counterclaimant pending Motion to Set Aside Final Judgment.
“WHEREFORE the Defendant-Coun-terclaimant JAMES C. PELEKIS, moves the Court for an Order requiring the Defendant, J. BRUCE VINING, to present himself and submit to a handwriting analysis.”

The appellees, who were the moving parties below, claim as a basis for their motion RCP 1.350, “Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes,” and RCP 1.280(b), “Scope of Discovery.” As authority for the order requiring Vining to make available copies of his signature for examination, appellees cite 29 Am.Jur.2d Evidence § 810 (1967), and Fla.Stat. § 92.-38. Appellants, on the other hand, urge that a party may not be required to produce documents that do not exist, relying upon Fryd Construction Corporation v. Freeman, Fla.App.1966, 191 So.2d 487; and Balzebre v. Anderson, Fla.App. 1974, 294 So.2d 701. Appellants also rely upon the criminal appeal case of Simmons v. State, Fla.App.1971, 248 So.2d 229, for the proposition that a signature manufactured for the litigation may not be used as a basis for a finding of forgery.

We hold simply that the rules for discovery do not authorize the procedure employed by the court. The methods under the statute and our rules by which a standard for the comparison of signatures may be established is set out in Chemical Corn Exchange Bank & Trust Co. v. Frankel, Fla.App.1959, 111 So.2d 99, 72 A.L.R.2d 1270. The process of the forced manufacturing of specimens in the hope that one of them will afford a basis for a claim of forgery is not contemplated by our rules of discovery. Cf. Vargos v. Clark, 8 F.R.D. 635 (D.D.C.1949; and Cabrera v. Evans, Fla.App.1975, 322 So.2d 559.

The defendant may be required to produce samples of his signature made prior to the litigation. See RCP 1.350 and 1.280, and Fla.Stat. § 92.38. Upon return of this cause to the trial court, an order requiring the production o.f specimen signatures of the defendant, which are not manufactured for the occasion, may be entered. Therefore, the order under review will be quashed with directions to enter an appropriate order for the production by the defendant of some designated number of samples of his previously-made signature or writings.

Quashed with directions.

It is so ordered.

      . City of Sarasota v. Colbert, Fla.App.1957, 97 So.2d 872.

      . Pelekis v. Florida Keys Boys Club, Fla.App. 1974, 302 So.2d 447.
      “Defendant-appellants seek review of the denial of their motion to vacate final judgment pursuant to RCP 1.540(b).
      “Appellee, plaintiff in the circuit court, originally brought an action against the appellants to quiet title to certain parcels of land. Defendant-appellants filed a counterclaim and alleged therein that the deed was false and fraudulent and was forged by some unknown person. The chancellor found against the appellants on their counterclaim and title was quieted in the plaintiff-appellee. Approximately one year later, defendant-appellants filed a motion to vacate final judgment on the ground that the final judgment was procured by fraud and the movant had newly discovered evidence thereof, to wit: that the warranty deed to plaintiff-appellee actually was two separate instruments which had been taped together and that the signatures of the two witnesses to the signature of appellant Pelekis probably were made by the same individual.”
      Hi * # *


author: SCHEB, Judge.

text:
    V. Donald REBHOLZ and Joyce M. Rebholz, his wife, Appellants, v. Picot B. FLOYD, in his capacity as City Manager of the City of Clearwater, a Municipal Corporation, et al., Appellees.
    No. 75-936.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1976.
    Rehearing Denied March 23, 1976.

      Jack S. Carey, of Carey & Harrison, St. Petersburg, for appellants.
    John S. Wagstaff, of Phillips, McFarland, Gould & Korones, Clearwater, for appellees Floyd and Blanton.
    • Howard P. Ross, of Parker, Battaglia, Parker, Ross & Stolba, St. Petersburg, for appellee Fred Bullard Corp.
   SCHEB, Judge.

This appeal presents the question of whether mandamus will lie upon petition of an affected property owner to compel municipal officials to enforce certain zoning requirements. The trial court declined to issue an alternative writ on grounds that a remedy against another party was available to petitioner. We reverse.

Appellants, petitioners before the trial court, are owners of an apartment unit in the Sand Key Club, a condominium subject to the zoning ordinances of the City of Clearwater. The respondents below are city manager and director of building respectively, and are charged with enforcement of the City’s building and zoning ordinances. They, together with Fred Bul-lard Corporation, the developer of the condominium which intervened in the proceedings in the trial court, are appellees herein. Appellants alleged the developer caused various violations of density, set backs, and parking requirements, all contrary to specified provisions of the City’s zoning code. Further, they alleged their efforts to have the appellees enforce the relevant provisions of the zoning ordinances have been unavailing. Contending these alleged violations affect their use and enjoyment of the property, appellants sought issuance of an alternative writ of mandamus by the trial court.

Appelleés tnoved" to'dismiss the petition and after argument the trial judge determined :

. . . there is an adequate remedy at law against the developer Fred Bullard Corporation and therefore mandamus does not lie accordingly (sic) the Motion to Dismiss is granted with leave to amend the complaint to make a claim against the Fred Bullard Corporation.

Appellants’ motion for reconsideration was denied and this appeal followed.

The petition, in alleging various violations, makes a clear case that the developer has “. . . removed 54 parking spaces from use by the residents of Sand Key Club Condominium #1 without approval by the City of Clearwater.” Thus, at least to the extent of the off-street parking, the petition sets forth a clear violation of the City’s ordinances.

A writ of mandamus may be invoked to compel proper enforcement by public officials of zoning ordinances where acts of third parties adversely affect the rights of petitioners. City of Miami Beach v. Sunset Islands, Fla.App.3d 1968, 216 So.2d 509. See also, Annotation, Remedies to Compel Municipal Officials to Enforce Zoning Regulations, 35 A.L.R.2d 1135 (1954). Here the trial court’s refusal to issue the alternative writ was based on the court’s opinion that petitioner had another remedy, i. e., to file a complaint against Fred Bullard Corporation, the developer, which had allegedly caused the zoning violations by certain conveyances to Fred Bul-lard and his wife as individuals. The existence and adequacy of another remedy may be relevant to issuance of a peremptory writ. However, the court’s opinion that there was such a remedy was not a sufficient ground to decline to issue an alternative writ. Here the relevant ordinance created a direct duty on the appellees. Thus, since the petitioner alleged a prima facie case, the trial court should have issued the alternative writ or at least an order to show cause why an alternative writ should not be granted. RCP 1.660(a); Trawick, Florida Practice and Procedure, § 36—4; Reedus v. Friedman, Fla.App.3d 1973, 287 So.2d 355. After response by the City and presentation to the trial court, the court can determine whether a clear duty has been established on the City to merit issuance of a peremptory writ. See McDaniel v. City of Lakeland, Fla.App.2d 1974, 304 So.2d 515.

The degree of discretion ordinarily vested in municipal officials in respect to their method and level of enforcement of zoning ordinances is delimited here since the City’s governing body imposed a continuing affirmative duty on these officials to enforce the requirements which were imposed as prerequisites to the original zoning approval. Further emphasis is supplied by the City’s requirement that the developer furnish an attorney’s opinion or other suitable evidence certifying to the ownership or control of such parking facilities as a prerequisite to approval of the project. Section 33.03(3), Code of Clear-water.

As part of the mechanics to secure approval of a plat of subdivided land, the developer ordinarily is required to assure the City of his title and to dedicate the required public accesses for roads, utilities, etc., to the general public. But here, the City is concerned with a more sophisticated type of development and these more complex regulations impose even greater responsibilities on the developer, e. g., plat plan, parking easements, etc. Of what avail are these zoning regulations concerning open space, density, set backs, parking, recreational areas, etc., unless the City requires continued compliance ? The City cannot suffer such requirements to be nullified by subsequent actions which reduce or remove these required amenities from their intended beneficiaries. It therefore becomes apparent that the basic purpose of the City approval of the developer’s plot plan showing the parking spaces required is to “tie down” the developer for benefit of the project, its owners, and of course the City generally. An owner adversely affected by violations of these requirements should be able to call upon the City to enforce its zoning regulations. And while the trial judge felt the petitioner had other adequate remedies, the existence and effectiveness of any such other remedy is not, from the petition, so apparent as to preclude issuance of the alternative writ.

Finding as we do that the relevant ordinances create a duty of enforcement on the appellees and that appellants’ position sufficiently alleges a clear violation of city zoning regulations affecting their rights, we hold it was error for the court to dismiss the petition and thereby refuse to issue the alternative writ. We express no opinion as to whether ultimately petitioner will establish that the writ is well founded and will be entitled to a peremptory writ.

Reversed and remanded for further proceedings consistent with this opinion.

HOBSON, A. C. J., and STOKES, ROBERT G., Associate Judge, concur.

      .Appellees contend we do not have jurisdiction here because the appeal was taken from denial of appellants’ motion for reconsideration, which appellees contend was a nonap-pealable order. However, we have previously held that an order dismissing a petition for a writ of mandamus is a final order. State v. Scofield, Fla.App.2d 1960, 120 So.2d 825. The timely filed petition for reconsideration, being in effect a petition for rehearing, stays the appeal time. Laytner v. Humble Oil & Refining Co., Fla.1972, 262 So.2d 675. And although the appellants appealed from an order denying the motion for reconsideration, rather than the court’s granting the motion to dismiss, the notice of appeal will be treated as being from the final judgment, absent a showing of prejudice to the appellees. Eggers v. Narron, Fla.1970, 238 So.2d 72; DeLoache v. DeLoache, Fla.1975, 274 So.2d 883; F.A.R. 3.2(c). Here all the necessary records on appeal are before this court and clearly dem onstrate the trial court’s action of which the appellants complain. Accordingly, there being no showing of prejudice to appellees, we reject the appellees’ contention.

      .Section 33.03 of the Code of the City of Clearwater (the zoning ordinance) provides in part:
      “(1) A plot plan to scale showing the re- • quired off-street parking area shall be submitted with the building plans when application for a building permit is made. It shall show arrangement as well as adequate area for proper ingress and egress and shall be subject to approval by the building official.
      (3) Area reserved for off-street parking or loading in accordance with the requirements of this section shall be permanent. There shall be furnished an attorney’s opinion or other suitable evidence certifying to the ownership or control.
      (4) Required off-street parking or loading area shall not be reduced or changed to any other use unless the permitted use which it serves is discontinued or modified, except where equivalent parking or loading space is provided to the satisfaction of the building official upon which evidence a parking lot occupancy permit will be issued! (5) Parking spaces shall be reserved for the sole use of the occupants of the building or lot and the visitors thereto. . . .”

      .While we have not been cited to any Florida cases on this point and our research has not disclosed any, an interesting observation on the question is stated in 52 Am.Jur.2d, Mandamus, § 49:
      “To bar mandamus, the other remedy must not only be adequate in the general sense of the term, but also specific and appropriate to the circumstances of the particular case. It must be a remedy that will effectively afford relief upon the very subject matter involved and enforce the right or performance of the duty in question. It must be one to which the complaining party may at all times resort at his own option fully and freely, without let or hindrance, and which is available against the party from whom the duty is owing, as distinguished from one against a third person.”
      See also 55 C.J.S. Mandamus § 17 at n. 68.

      . Section 34.04 of the Code of the City of Clearwater (the zoning ordinance) provides:
      “It shall be the duty of- the city building official to administer and enforce the provisions of this ordinance. . . . ”
      The definition section of the Code (Art. II, Definitions) provides: “. . . the word ‘shall’ is mandatory and not directory.”


author: RAWLS, Acting Chief Judge.

text:
    GREEN VALLEY SCHOOL, INC., a Florida Corporation, not for profit, Appellant, v. COWLES FLORIDA BROADCASTING, INC., a Florida Corporation, owner and operator of WESH-TV-Channel Two, et al., Appellees.
    No. X-24.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1976.
    Rehearing Denied March 26, 1976.
    Craig T. James of Clayton & James, De-land, for appellant.
    P. S. Paul and Sanford L. Bohrer of Paul & Thompson, Miami, for appellees.
   RAWLS, Acting Chief Judge.

On February 10, 1973, at 6:00 p. m:, ap-pellees Todd and Rozier, employees of ap-pellee Cowles Florida Broadcasting, Inc., published the following narration on WESH-TV, Channel 2 (television station owned by appellee Cowles) :

“FRED BREWSTER [newscaster]: The President of a controversial private school in West Volusia County was arrested last night along with three staff members as a platoon of law enforcement officers raided the facility. The President was charged with ‘False Imprisonment’ and the staffers held on narcotics charges. Channel 2’s Dean Todd was there and files this report:
“DEAN TODD: No less than SO law enforcement officers from all departments in Volusia County except DeLand and the Sheriff’s Office gathered last night in DeLand under the leadership of Chief Investigator Jack Lynady of the State Attorney’s Office. They were about to swoop down on the controversial Green Valley School in Orange City after over two years of investigation they planned to arrest Ronald Nowicki, Headmaster and President. Charge: ‘False Imprisonment’
“The Law Department sprang after a Phys. Ed. Instructor, identified only as a Mr. Kelley, told police it was common practice to lock up the students for days, even weeks at a time. But there was even more. There were allegations of rampant sexual conduct between students themselves and between staff members and female students.
“Nowicki was rousted out of his bed at his small, untidy apartment in a building known as the Monastery. With him was a young, female staff member — he told investigators they were on night duty together.
“About 65 students live on the campus and while Nowicki was being advised of his rights the other officers began securing the other buildings in military fashion. According to officers, some of the male and female students were living in the same dormitories. Most of the rooms were in apparently permanent shambles. The rooms were filthy, even those of most of the staff members were in complete disarray.
“It wasn’t long before officers began turning up drugs by the armload. Many were vitamins, many were prescription drugs which have not been identifiéd by the searchers.
“Something else was turned up during the searches: These are electric shock collars. They are made for dog training, but here, according to some of the students, they are used on them, occasionally. Also turned up were a set of shackles and handcuffs used to bind the children. Apparently such implements were expected to be found by the raiders.
“This is 15 year old Mitchell Spalding of San Diego, California, on the right; 14 year old Marc Corren of Miami Beach. The State of California pays $16,000.00 a year for Spalding to stay here. The filth is astounding. Spalding and Corren both told Channel 2 News they had electric cattle prods used on them by staff members and that it was common.
“DEAN TODD: Did they use a cattle prod on you?
“MITCHELL SPALDING: Urn, yea, they used it once on me.
“DEAN TODD: For what?
“MITCHELL SPALDING: For nothing. I was asleep and they came up drunk and
“DEAN TODD: Who did?
“MARC CORREN: Me.
“MITCHELL SPALDING: Ah . . .
“MARC CORREN: Staff, staff members man.
“MITCHELL SPALDING: Ah, it was Mike Hannigan and I, I was asleep at the time and so I don’t know who else did it. But they come up with this bull shocker, ya see, ya know, they really bull shocked me but I hadn’t done anything.
“MARC CORREN: I mean that is enough to drive a cow sick man, it could even hurt you, you can feel pain for the next four days.
“DEAN TODD: This is the block house, inside it is bare. Students are reportedly locked inside for days. Eighteen year old Sue Borman of Levitt Town, Pennsylvania, told us that she had been locked in there once, for a week.
“Simultaneously, a Marina, owned by the Green Valley School also was raided. Some six of the students were found when law enforcement officers came upon the area West of DeLand, a short distance South of the Hontoon Marina. The main object of the search was an old boat, a World War II mine-sweeper converted into a diving rig called the ‘FEARLESS’ and reportedly housed students in certain detention cells. But the ‘FEARLESS’ apparently has not left its birth [sic] for two years. It has, aboard it, a decompression chamber. It is supposed to be used primarily by divers stuck with the bends or nitrogen narcosis.
“Informed sources told us that students had been locked in here, as punishment. A brig, located in the bow of the ship, was .filthy and rat infested, students reportedly were housed in here, human excrement was also found in this area.
“Back at the school, officers continued to find more pills, some in the room of an instructor. A collection of color slides which graphically detailed several nude women was found in the therapy room as well as a host of electric instruments.
“The searches continued until dawn. Investigator, Lynady summed up the arrest that had been made then:
“JACK LYNADY: A man was arrested for ‘False Imprisonment’, another man was arrested for possession of, ah, marijuana, and ah drug paraphernalia, two girls were arrested for ah . . .
“DEAN TODD: It may be sometime before the full implications of last nights raid are known.
“The Federal Government reportedly pays the School about $600,000.00 a year, various states and private individuals pay ‘exorbitant’ amounts to house delinquent children and some with medical problems here.
“The apparent owner, George von Hilsh-mier, was in Canada. He apparently runs one or two other similar schools; one located in New York.
“Accompanying the officers last night were Internal Revenue Agents who confiscated 'the School’s financial records.
“Some of the children reacted to the raid with fear, some with surprise or amusement. They may have a lot to tell later.
“This investigation, which began two years ago, may be just beginning.
“Dean Todd, Channel 2 News, Orange City.
“FRED BREWSTER: State Attorney, Steven Boyles, said the School could be closed as a public nuisance. Boyles told Channel 2 Green Valley is chartered by-the Circuit Court under a State Statute on private schools, and that a ruling as to the application of the law as it relates to the Green Valley School might be obtained from the Attorney General.
“Further charges may be filed pending the outcome of the lab tests of the various drugs taken last night.”

As a result of the foregoing, Green Valley filed its complaint sounding in libel and slander and malicious trespass. Extensive discovery was had together with numerous hearings, resulting in a large pasteboard box of records numbering some 22 volumes and more than 3,000 pages. The trial court entered summary judgment in favor of appellees; hence this appeal.

Two points are posed for our consideration, viz: 1) The record shows substantial issues of material fact, and 2) The trial court erred in denying appellant’s Motion and Application for Disqualification.

Additional facts are material. Prior to the above mentioned raid, Jack Lynady, Chief Investigator for the state attorney’s office of the Seventh Judicial Circuit, procured a search warrant commanding:

“. . . ALL AND SINGULAR THE SHERIFF AND/OR DEPUTY SHERIFFS OF VOLUSIA COUNTY, FLORIDA, OR INVESTIGATORS FOR THE STATE ATTORNEY’S OFFICE, SEVENTH JUDICIAL CIRCUIT, STATE OF FLORIDA [to search]:
“. . . Those lands described in deed of record in Official Records Book 1196, page 629 of the Public Records of Volu-sia County, Florida, believed to be the property owned by Green Valley School, Inc., is being used as a means to commit the felony offenses of false imprisonment, child abuse, and lewd and lascivious behavior. . . . ”

The warrant further authorized the search to be conducted either in the daytime or nighttime. Lynady arranged a raiding party of some fifty policemen from several municipalities within Volusia County and employees of the state attorney, who were designated “special investigators” by the state attorney. Lynady also invited appel-lees Rozier and Todd and other news media personnel to participate in the midnight raid. The party was briefed by Lynady during the evening of February 9, 1973, and at approximately 11:30 p. m. the search party, accompanied by Rozier and Todd (and other news media personnel), arrived upon the premises of Green Valley. Excerpts from various affidavits and depositions regarding the raid reveal the following :

Edward Brenner — Teacher and Counsel-lor
“4. At about midnight or sometime thereafter, I was awakened by several beefy, ununiformed men who claimed that they were policemen and who ordered me to remain just outside my room. These individuals refused to produce identification, displayed no badges, and would not produce a warrant. I asked them by what authority they were there and they refused to tell me anything more than ‘this is a raid, and we are going to get the goods on you.’
“6. These obese persons began abusing the children in my care with verbal threats and by telling them to ‘tell everything you know and it will go easy on you kid’. They asked each child many leading questions. Two of the children, both of whom were obviously highly agitated, and both were known to me to be highly disturbed children began to answer questions about abuse and illegalities in a positive manner. They were then stopped by the cigar smoking fat man questioning them who shouted to others to ‘call the TV camera, get Todd over here’.
“7. A white station wagon clearly marked as belonging to Channel Two then arrived and another plump man and a TV camera man with several other individuals got out. They then filmed Mitchel Spaulding, a boy then just a few months out of a mental hospital and now again in a state mental hospital, who was to my eyes and who appears to me on the TV program filmed by Channel Two, to be highly disturbed and agitated. They also filmed Michael Corren, a boy with a long delinquent history who also was very obviously under great mental strain.
“8. The cigar smoking person who claimed he was a policeman took the lead in telling the boys what to say. In no way did the transaction resemble a questioning. The boys were told what to say and parrotted it. This was obvious to the plump person from Channel Two who seemed to be the announcer and who subsequently has been identified to me on the TV program as Dean Todd. It was also obvious to the individual accompanying him.
“Any dirt, filth, pictures, or other disarray and mess was caused primarily by the first group of overweight cigar smoking men who called themselves police. These men pointedly and particularly arranged furniture, sheets, trash, and vitamin pills in groups for the TV camera men. This was done in the full view of the second group of men, including Dean Todd, the plump man who seemed to be the leader of the group emerging from the white station wagon.”
Susan Borman- — Student
“7. I love Green Valley School and I saw the television program on WESH-TV and it was just one lie after another. It was especially a lie when it said I said I had been locked up for weeks in the Bomb Shelter. I did not say it, I only kept telling them to leave me alone and that I did not want to get into trouble. . . . I was afraid of what they would do to me especially after they [sic] way they tore up my room. I did not know what my rights were and they just came into my room like burglars and scared me to death and then told me I could go to jail after they tore my room all apart and made it a terrible mess. Every where you could see them tearing up rooms like animals.”
Faye Brown — Staff Member of Green Valley
“4. At 1:45 a. m. a group of roughly dressed men entered the Medical Center and announced that they were searching the entire building and campus.
“7. The WESH-TV Channel Two Team appeared at the Medical Center shortly after the men arrived and were told by one of them, ‘We aren’t ready for you yet, come back later.’ They entered the building without knocking and were not invited to come in.”
Wendy Clark — Teacher
“2. I was awake when a group of men, who refused to identify themselves to me, swarmed into the Quads and made all the children leave their rooms and stand in front of them. They would not identify themselves to me, they showed me no warrant or any other piece of paper. They were dressed more or less like hunters and their mood and actions were like that of a group of college boys at a ‘panty raid.’ The only indication that they were policemen, was that they told me I would be arrested if I moved from in front of my room.
“3. I found the experience terrifying and so did the children in my charge. Several of the girls were jerred [sic] at and their inadequate clothing pointed at repeatedly by the strangers and especially the men from the station wagon from WESH-TV. . . . Their behavior was like that of nasty boys while crashing a girl’s picnic when the adults are away.”
Harry Detweiler — Public School Teacher from Ashland, Oregon — Volunteer in order to learn about successful methods of working with very disruptive children. “2. Sometime after midnight on February 9th [February 10], 1973, I was awakened by a great deal of racket in the Administration Building where I occupied the single bedroom upstairs. By the time I came down the stairs there were more than twenty people in the building.
“3. The men had obviously gotten in by breaking a door and one of the men had cut himself pretty badly. No one would give me a warrant or any identification although they asked for my identification.
“4. There are several thousand slides in one of the three treatment rooms upstairs. The men were going through the slides with a great air of comedy. The majority of the slides have to do with innocuous subjects and are used to treat phobias by the psychiatrists or their aides here. A few of the trays deal with nude human figures and these were greeted with great enthusiasm by the men, and especially those whom it was easy to identify as newsmen and the men from WESH-TV Channel Two.
“6. WESH-TV and the still photographers spent a great deal of film on a large plastic bag full of comfrey tea (an old fashioned herbal tea). It was clearly labeled and to the eye does not look anything like parsley, oregano or the marijuana identification kits they give out to school teachers. The newsmen were totally uninterested in my statements that it was unfair to take pictures of herb tea and call it drugs. In the WESH-TV program I saw that the bag of tea was shown while Dean Todd talked about 'armloads of drugs.’ ”
Carole Rice — Student at Green Valley for several years
“3. My girlfriend, Cathy Hynds, had been in bed dressed in a man’s tee shirt. It was barely long enough to cover her legs. The police would not let her get dressed.
“4. The station wagon came over and the camera man took pictures of my room. The room looked awful, but I always have a clean room and it was only because the cops had torn it up.
“5. While the man who is called Dean Todd on the TV was standing by my room, he kept pointing at Cathy Hynds and laughing and joking and being awful. I was so mad that I cried. Poor Cathy was humiliated. When I saw that fat face again at a press conference I was so mad I had to leave. He acted like a bully that night. All of those men were joking and laughing and making nasty remarks. They must think we are stupid because one would be sticky sweet and say he was helping us and another would be nasty and say ‘tell us where your drugs are,’ ‘do you take them in your arm,’ ‘where’s your needles?’ They kept it up for hours.
“7. I saw the TV broadcast that Dean Todd did and he is just a liar. He helped those cops mess up things, and he only took pictures after the cops called him over with some special goodie they had made up. He was ugly and obscene to the girls and made Cathy especially humiliated.”
Martin Hoade — Counsellor at Green Valley for four years
“14. I am also familiar with the ship, the ‘Fearless,’ and have been entirely through the ship on many occasions. I have at no time seen any evidence of rats. The ship has never been used for feeding, even during its career in the U. S. Navy, and the permeation of the ship with diesel fuel during the period in which the Navy was not using it, it was docked at Washington, D. C. There- is no brig on the ship. The ship was delivered to the School in March, 1972, contrary to the news report of WESH-TV. At no time during that eleven months have I seen the ship or its quarters to be filthy, no child has been locked in any portion of the ship, and most particularly has no child been locked in the recom-pression chamber. I have had free access to the ship and the nature of my duties make it necessary for me to go onto the ship at irregular intervals. It is physically impossible to lock the recom-pression chamber from the outside, and
Peggy Milner
“1. My name is Peggy Milner and I am presently a teacher at the Glaydin School in Leesburg, Virginia, and I was for three years a Teacher, for tw.o years Dean of Women, and for one half a year Academic Dean at Green Valley School.
“19. I have seen the tape of the broadcast made by WESH-TV purporting to be news of the raid. It is utterly unfair and distorted.
“24. The TV crew from WESH-TV had complete access to the Campus. They focused on two areas, the Boy’s Dome, in which six children lived and the Quadrangles, in which about ten children lived. They did not enter any area until it had been thoroughly disrupted by police and mud dragged in on belongings scattered on the floor. They saw no evidence of sexual misconduct, they saw no evidence of sexual misconduct between staff and children. They observed areas in which less than ten of a Staff of more than forty lived and deliberately lied about the condition of both Staff and children and their quarters.”
Ronald E. Nowicki, headmaster and teacher at Green Valley for seven years, testified on deposition:
“Furthermore I called Channel Two after the six o’clock news and I stated that I considered the six o’clock news to be mostly false and malicious and if they repeated it at eleven o’clock we would file a suit, and it was repeated in toto at eleven o’clock.
“A. I told him that the rooms were a mess after the raiders had looked through them, not before that. And that I was not rousted from my bed, that I was in fact on duty that night and cooking in the kitchen.
“Q. Now, other than these two facts which you have stated, do you have any other facts or any other evidence which would support your contention that the newscasts were specifically designed and prepared to defame, slander and libel Green Valley School ?
“A. Yes, the newscasts said that IRS men participated in the raid and seized financial files.
“Q. Anything else ?
“A. Some statement to the effect that the beverage control people were there, but I have no knowledge of that either.
“Q. Do you have any knowledge that Channel Two was not in fact told that IRS men would participate ?
“A. They didn’t state that in their broadcast. They didn’t say that they had been told, they said IRS men was [sic] there and seized financial files.”

This record further reflects other evidence to impeach the statements: “after over two years of investigation they planned to arrest Ronald Nowicki, Headmaster and President”, “rampant sexual misconduct”, “rooms were filthy”, “drugs by the armload”, and other items reported as eyewitness news. The record clearly reflects extensive communication between appellee Cowles’ employees and the state attorney’s office immediately prior to the raid.

Appellees, in their excellent brief -and appendix, first contend that appellant cannot recover for libel because the allegedly false statements are true in every respect. They then set forth excerpts of the allegedly false statements and compare each, primarily, with an article prepared by one Robert Sherrill which was attached to an affidavit executed by him. In his affidavit, Mr. Sherrill stated that he had prepared an article on Green Valley School which was submitted to Mr. Paul, attorney for the Miami Herald. The affidavit further stated that as an experienced reporter :

“. . . I would expect any reporter worth paying a salary, to examine search warrants and their supporting documents and to put very hard questions to policemen before and after accompanying policemen on any action which involved a search warrant and the invasion of the privacy of homes.
“8. As an experienced reporter I know that police raids involving fifty or more raiders are very unusual. If I were invited to go on such a raid I would be more than exceptionally careful to examine all documents involved, to research the background of the raid, and I would be inclined to regard information from the police as insufficient and probably misleading.
“11. I have read a transcript of an WESH-TV broadcast alleged to describe conditions at the school. . . '. So far as I can see, the report had no purpose other than to try to excuse a raid that was inexcusable and probably illegal.”

The article attached to the foregoing affidavit was not sworn to and, when read in conjunction with the affidavit, clearly was not intended to be considered as sworn testimony. By extracting excerpts of the article and excerpts from the affidavit of Lynady, appellees contend that as a matter of law the alleged false statements are true in all material respects.

It is elementary that a summary judgment should be sparingly granted so as not to infringe on the constitutional right to a jury trial; that a summary judgment is not a substitute for trial and should not be granted unless the facts are so crystallized that nothing remains but questions of law.

Appellees urge by their brief that:

“As Appellant admits in its brief, to recover against Appellees for libel Appellant as a public figure must satisfy the New York Times standard . . . that is it ‘may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.’ ”

Appellees then quote this court’s statement in Damron v. Ocala Star-Banner Company, viz:

"Apparently, the Federal Supreme Court has ruled that a public figure is without recourse when the news media, without proof of ‘express malice’ of ‘convincing clarity’ chooses to publish defamatory falsehoods about such public figure. Thus, we are compelled to affirm the [summary judgment for the defendant] . . ..”

and conclude that there is not a shred of evidence in this record to support any theory of express or actual malice.

Gertz v. Welch, in which the United States Supreme Court re-examined the “New York Times” doctrine, left dangling in the air on a case-by-case basis the question of what constitutes a “public figure”. A reading of Gertz discloses an apparent re-evaluation by that court of its prior immunization of the press from libel actions.

New York Times Co. v. Sullivan and later cases explicating the doctrine there expressed have been the subject of innumerable appellate decisions, law review articles, and scholarly treátises. The continuous dichotomy created by the need to protect “freedom of press” while preserving “the rights of private individuals and public figures” has to a great extent been resolved by the United States Supreme Court in Cantrell v. Forest City Pub. Co., with only one dissenting opinion. There, Mrs. Cantrell and her son survived a motion for directed verdict, and a judgment in their favor was entered upon a jury verdict. Upon appeal the Sixth Circuit Court of Appeals reversed, holding that the trial judge should have granted defendant’s motion for a directed verdict. The United States Supreme Court reversed the Sixth Circuit and directed that the judgment be affirmed as to Forest City Publishing Company and its employee (reporter), Joseph Eszterhas. In so doing, the Supreme Court once again examined New York Times Co. v. Sullivan, supra, and Time, Inc. v. Hill. Of interest here is that the trial judge instructed the jury that liability could be imposed only if it concludes that the false statements in the Sunday Magazine feature article on the Cantrells had been made with “knowledge of its falsity or in reckless disregard of the truth.” In commenting upon the opinion of the appellate court, the Supreme Court stated:

“The Court of Appeals appears to have assumed that the District Judge’s finding of no malice ‘within the legal definition of that term’ was a finding based on the definition of ‘actual malice’ established by this Court in New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 95 A.L.R.2d 1412: ‘with knowledge that [a defamatory statement] was false or with reckless disregard of whether it was false or not.’ As so defined, of course, ‘actual malice’ is a term of art, created to provide a convenient shorthand for the standard of liability that must be established before a State may constitutionally permit public officials to recover for libel in actions brought against publishers. As such, it is quite different from the common-law standard of ‘malice’ .generally required under state tort law to support an award of punitive damages. In a false-light case, common-law malice — frequently expressed in terms of either personal ill will toward the plaintiff or reckless or wanton disregard of the plaintiff’s rights —would focus on the defendant’s attitude toward the plaintiff’s privacy, not towards the truth or falsity of the material published. See Time, Inc. v. Hill, 385 U.S. at 396 n. 12, 87 S.Ct. 534, at 546 n. 12, 17 L.Ed.2d 456. See generally W. Prosser, Law of Torts 9-10 (4th ed.).”

Thus, it is “mica” clear that in weighing the facts of this summary judgment proceeding upon the scales of Cantrell, supra, the instant summary judgment discharging appellees from liability as a matter of law must be reversed.

To uphold appellees’ assertion that their entry upon appellant’s property at the time, manner, and circumstances as reflected by this record was as a matter of law sanctioned by “the request of and with the consent of the State Attorney” and within the “common usage and custom in Florida” could well bring to the citizenry of this state the hobnail boots of a nazi stormtrooper equipped with glaring lights invading a couple’s bedroom at midnight with the wife hovering in her nightgown in an attempt to shield herself from the scanning TV camera. In this jurisdiction, a law enforcement officer is not as a matter of law endowed with the right or authority to invite people of his choosing to invade private property and participate in a midnight raid of the premises.

Finally, we reach the question of the refusal of the trial judge to disqualify himself from further participation in these proceedings. Numerous depositions in the discovery proceedings were taken in open court under the auspices of the trial judge. Appellant sought disqualification of the trial judge by filing motions with affidavits attached. The motions and supporting affidavits do not as a matter of law require a reversal by this court of the judge’s order denying same. However, the record as a whole supports appellant’s contention that: “. . . Plaintiff fears it will not receive a fair trial in the Court where the above suit is pending . . . .” As was stated by this court in State ex rel. Arnold v. Revels:

“We know of nothing more vital in the administration of justice in America than that the judge who sits in judgment on the life, liberty, pr property of persons before his court be perfectly impartial. We think it a judge’s duty not only to harbor no prejudice toward such persons but also to avoid the appearance of such prejudice.”

In the present proceedings it may well be that, if we were able to look into the mind of the trial judge, we would find no actual prejudice toward appellant. However, this record reflects a number of instances (which will not be detailed) in which the trial judge failed to avoid the appearance of bias or prejudice towards appellant. In consideration of “the totality of the circumstances” present in this case, upon remand, we direct the Chief Judge to assign another judge to preside over further proceedings.

Reversed and remanded with directions.

SMITH and MILLS, JJ., concur.

      . Approximately the same version of this broadcast was presented on Channel 2 News at 11:00 p. m. the same night.

      . Appellant contends that the search warrant is deficient in that it fails to describe with particularity the premises to be searched and, further, that the record referred to described at most 25 percent of the premises searched by the raiding party.

      . Mrs. Emmett Rozier, Lynady’s personal secretary and the wife of appellee Rozier, was designated as a member of the search party.

      . Robert Sherrill deposed that for the last 26 years he has written for newspapers and magazines. Among his employers' have been Time, Life, Harper’s, Esquire, the New York Times Magazine, and The Miami Herald.

      . Murrell v. Vick, 178 So.2d 133 (2 Fla.App.1965).

      . Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla.1952).

      . Shaffran v. Holness, 93 So.2d 94 (Fla. 1957).

      . Few York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the U. S. Supreme Court equated reckless disregard for the truth with subjective awareness of probable falsity: “There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”

      . Damron v. Ocala Star-Banner Company, 263 So.2d 291 (1 Fla.App.1972).

      . Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

      . Cantrell v. Forest City Pub. Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974).

      . Cantrell v. Forest City Pub. Co., 484 F.2d 150 (6th Cir.1973).

      . Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967).

      .The Supreme Court, in commenting upon the evidence, stated: “There was no dispute during the trial that Eszterhas, who did not testify, must have known that a number of the statements in the feature story were untrue. In particular, his article plainly implied that Mrs. Cantrell had been present during his visit to her home and that Eszterhas had observed her ‘wearfing] the same mask of non-expression she wore [at her husband’s] funeral.’ These were ‘calculated falsehoods,’ and the jury was plainly justified in finding that Eszterhas had portrayed the Cantrells in a false light through knowing or reckless untruth.”

      . Fletcher v. Florida Publishing Company, 319 So.2d 100 (1 Fla.App.1975).

      . State ex rel. Arnold v. Revels, 113 So.2d 218 (1 Fla.App.1959).

        . Department of Revenue v. Golder, 322 So.2d 1 (Fla.1975).


author: BOYER, Chief Judge.

text:
    In Interest of K. P., a child, Appellant, v. STATE of Florida, Appellee.
    No. Z-343.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1976.
    Rehearing Denied March 26, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   BOYER, Chief Judge.

The primary question presented in this appeal is whether the rebuttable common law presumption that a child under the age of 14 is presumed to be incapable of committing a crime is applicable to juvenile court proceedings in Florida.

Although there is no transcript of the testimony adduced at the delinquency hearing below, the reconstructed record as attested to by the trial judge indicates that appellant on March 2, 1975, took and removed a lawn mower from the property of Stanley Flook without the owner’s knowledge, permission, or consent. The lawn mower was subsequently located but had been dismantled. At the time the alleged offense occurred, appellant was 12 years old. He was 13 years of age at the time of the delinquency hearing. His counsel argued at the hearing for a judgment of acquittal on the grounds that the State had failed to present any evidence other than the crime itself to rebut the common law presumption that a child under the age of 14 is incapable of committing a crime. The trial judge rejected this argument found defendant to be a delinquent child, and placed him on probation with the Division of Youth Services for an indeterminate period of time.

The presumption of incapacity developed at common law was designed to shield developing children from the full force of the criminal process. It was felt that children below a certain age had not the mental capacity to appreciate the wrongfulness of their acts. Thus, children below the age of seven years old were conclusively presumed not to have the capacity to commit a crime, while children between the ages of seven and fourteen were rebuttably presumed incapable of committing a crime. As a part of the common law, this rebuttable presumption has, by statute, been declared to be in force in this State; “provided, the said . common law be not inconsistent with the constitution and laws of the United States and the acts of the legislature of this state.” (F.S. 2.01)

Appellant argues that the rebuttable presumption of incapacity is not inconsistent with any statutory or constitutional provision and relies on two appellate decisions of this state directly on point. (In the Interest of E. P., Fla.App.4th 1974, 291 So.2d 238 and State v. D. H., Fla.App.2nd 1975, 309 So.2d 601.) Both cases specifically held that the common law presumption of incapacity to commit a crime was applicable to delinquency proceedings. The State disagrees with the foregoing two decisions, asserting that the presumption of incapacity is inconsistent with the provisions of Florida’s Juvenile Court Act, (Chapter 39, Florida Statutes)

Ideally, the juvenile court system in Florida is designed to substitute for retributive punishment alternative methods of training and treatment designed to further the correction and rehabilitation of children who violate the laws and to provide for the care, guidance and control which will be conducive to the child’s welfare and the best interests of society. (F.S. 39.001) Such purposes do not conform to the generally accepted characteristics of the “criminal process”. In fact, it was the very attempt to depart from the traditional treatment of juvenile offenders as ordinary criminal defendants that led to the creation of juvenile courts throughout the country.

The common law presumption of incapacity, on the other hand, was available as a defense to children charged with crimes and susceptible to receiving punishment as if they were adults. The intent of the presumption. was to afford juveniles some limited protection against the ordinary criminal process. Given the extensive protections afforded juveniles in Florida’s Juvenile Court Act, the defense of incapacity would ' appear to be unnecessary. Moreover, the survival of the incapacity defense could act to defeat the juvenile statute’s effectiveness by preventing the reformation of children who successfully argue the defense. (See 34 Md.L.Rev. 178, “Juvenile Procedure — Common Law Presumption of Criminal Incapacity of Minors Under Age 14 Inapplicable to Juvenile Delinquency Proceedings” (1974).) Having examined the intent of both the common law presumption of incapacity and Florida’s Juvenile Court Act, we conclude that the former is inconsistent with the latter and thus inapplicable to the instant proceedings.

Our disposition of the primary issue is not entirely dispositive of the instant appeal. Before this Court can affirm the decision of the lower court, the record must affirmatively support the lower court’s finding that appellant is a “delinquent child” who is, under Florida law, “a child who commits a violation of law, regardless of where the violation occurs, except a child who commits a juvenile traffic offense and whose case had not been transferred to the circuit court by the court having jurisdiction.” (F.S. 39.-01(12)) It has been held that “a violation of law, regardless of where the violation occurred”, is a violation of any law of the United States, of Florida, of another state, or of a city or town ordinance. (J. D. D. v. State, Fla.App. 4th 1972, 268 So.2d 457) But in order to show that there has been “a violation of law” by a juvenile the State must prove the same elements of the offense as would be required were the person charged an adult. (See In Re Glassberg, 1956, 230 La. 396, 88 So.2d 707 and In Re State In Interest of Unsworth, La.App. 4th 1973, 276 So.2d 337) The State, then, in a juvenile court delinquency proceeding does not have the burden of rebutting the common law presumption that a child between the ages of seven and fourteen is incapable of committing a crime, but when intent is an element of the offense charged it must demonstrate beyond a reasonable doubt that the child acted with the requisite intent at the time the act was committed.

Sub judice, the delinquency petition charged appellant with having committed an act which would have constituted the crime of petit larceny under F.S. 811.-02. Under that statute, the State must show that the defendant acted with the intent to deprive or defraud the true owner of his real or personal property or the use and benefit thereof. Of course, the requisite criminal intent may be inferred from the circumstances. (Williams v. State, Fla.App. 4th 1970, 239 So.2d 127) The reconstructed record on appeal merely indicates that appellant took and removed the victim’s lawn mower without the owner’s knowledge, permission, or consent. The record further reveals that the lawn mower had been subsequently- discovered but had been dismantled. There is no evidence in the reconstructed record as to who dismantled the lawn mower. This evidence falls short of a showing that appellant acted with the intent to drprive or defraud the owner of his property.

We, therefore, reverse and remand for a new hearing, at which time the State will be afforded an opportunity to present evidence pertaining to the issue whether appellant acted with the necessary criminal intent.

Reversed and remanded.

RAWLS and McCORD, JJ., concur.