author: PER CURIAM. PER CURIAM.

text:
    HARRY PEPPER & ASSOCIATES, INC., et al., Appellants, v. The CITY OF CAPE CORAL, Florida, et al., and Gulf Contracting, Inc., a Florida Corporation, Appellees.
    No. 76-1708.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1977.
    Rehearings Denied Dec. 16, 1977 and Jan. 5, 1978.

      Philip T. Weinstein of Cunningham & Weinstein, Miami, and Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
    Richard Y. S. Roosa of Pavese, Shields, Garner, Haverfield & Kluttz, Cape Coral, for appellees City and individual council members.
    Daryl J. Brown of Rosin, Abel, Band, Rosin & Brown, Sarasota, for appellee Gulf Contracting, Inc.
   PER CURIAM.

The issue in this case is whether a city has legal authority to accept a bid which, at the time of its submission, is facially nonconforming as to acceptable materials and components, but which is subsequently amended, prior to acceptance, to conform to the specifications as stated in the original proposal. The trial court, in essence, held that it had such authority. We disagree and reverse.

Appellee City desired to build a water treatment plant, and in March 1976 caused to be published the necessary advertisement for bids. The advertisement for bids contained the following provision:

Prebid submitted by manufacturers whose equipment has not been specified is required. The Engineer’s written approval of that equipment must be obtained for that equipment to be authorized for inclusion in the Bid Documents’ Equipment Schedule or project work.

The instructions to bidders contained, inter alia, the following condition:

1) The Contract will be awarded to the lowest responsible bidder complying with the conditions of the Advertisement, Instructions to Bidders, General and Special Conditions, Drawings and Specifications provided such bid is reasonable and provided it is to the interest of the Owner to accept it.

Since a major component of the water plant required the use of expensive and powerful pumps, the specifications for the bids said the following about the various types of pumps to be used:

As a point of information, this project has been designated based on the use of [pumps] ... as manufactured by Johnson Pump Company; FMC Corporation, Peerless Pump Division; or equal.

Each bid required the bidder to specify the manufacturer of the pumps that he proposed to supply under his bid.

After receipt of the bids, it was determined that the lowest bidder was appellee Gulf Contracting (Gulf), and the next lowest bidder was appellant Pepper & Associates (Pepper). However, Gulf’s bid listed a brand of pumps, Aurora, which all parties agree would not be acceptable to the City. After the discovery of this nonconformity Smallwood, an engineer in the engineering firm retained by the City, contacted an officer of Gulf and asked him to write a letter amending Gulf’s bid so it would conform to the bid specifications. A short time later Gulf submitted a letter saying that it would comply with the bid specifications as to the pumps. Smallwood then recommended that Gulf’s bid be accepted.

At a city council meeting on May 28, 1976, appellant Pepper’s representatives appeared before the city council and contended that the proposed award on Gulf’s amended bid was unlawful. The city council then directed the city attorney to report to it on June 3 as to its legal rights with respect to this matter.

At the meeting on June 3, the City, acting on the recommendation of its project engineer and the advice of its attorney, accepted the lower bid of Gulf.

Appellant Pepper then filed a complaint for a temporary injunction to prevent the City from contracting with Gulf. Following a hearing the trial court denied the request for temporary injunction.

Thereafter Pepper filed an amended complaint for injunction, writ of prohibition, and other relief. A hearing was held on the matter. At the close of Pepper’s evidence the City moved for a directed verdict. The trial court granted this motion and thereby denied the injunction. The court then entered its final judgment denying all relief to Pepper, from which this appeal was taken.

The purpose of the bidding process, as asserted in the early landmark case of Wester v. Belote, 103 Fla. 976, 138 So. 721, 723-24 (1931), is:

[T]o protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in its various forms; to secure the best values for the county at the lowest possible expense; and to afford an equal advantage to all desiring to do business with the county, by affording an opportunity for an exact comparison of bids.

See also, 26 Fla.Jur., Public Works and Contracts, Section 14 (1959).

From the above quote it is apparent that the entire scheme of bidding on public projects is to insure the sanctity of the competitive atmosphere prior to and after the actual letting of the contract. In order to insure this desired competitiveness, a bidder cannot be permitted to change his bid after the bids have been opened, except to cure minor irregularities. 10 E. McQuillin, Municipal Corporations, Section 29.68 (Rev. Ed.1966); 64 Am.Jur.2d, Public Works and Contracts, Section 59 (1972); Annot., 65 A.L.R. 835 (1930).

Looking to the specific facts in this case it is clear that prior to the awarding of the contract on June 3 the City was aware of the nonconforming nature of Gulf’s bid. The test for measuring whether a deviation in a bid is sufficiently material to destroy its competitive character is whether the variation affects the amount of the bid by giving the bidder an advantage or benefit not enjoyed by the other bidders. 64 Am. Jur.2d, Public Works and Contracts, Section 59 (1972). Here, there is no doubt that the difference between the conforming and nonconforming pumps was material, yet Gulf was permitted to modify its bid. Further, the inclusion of the nonconforming pumps was an advantage not enjoyed by other bidders, who were required to specify only approved equipment.

No one suggests that Gulf could have been required to perform the contract with conforming pumps, as its bid specifically stated that it would use Aurora, the nonconforming pumps. Therefore, Gulf had everything to gain and nothing to lose. After everyone else’s bids were opened, Gulf was in a position to decide whether it wanted the job bad enough to incur the additional expense of supplying conforming pumps.

In City of Opa-Locka v. Trustees of Plumbing Industry Promotion Fund, 193 So.2d 29 (Fla.3d DCA 1966), the appellee sought to bid on a contract to install certain sanitary sewer services for the City of Opa-Locka. As a condition precedent to any bid being filed, a bidding party had to have a certificate of competency from Dade County. Following submission of bids it was discovered that the appellee had submitted the lowest bid but did not possess the required certificate. The trial court enjoined the City from recognizing appellee’s bid. In affirming the trial court, our sister court stated, “If the City may in its discretion waive this section it would be conducive to favoritism by allowing some bidders to qualify after their bids are accepted . . ” 193 So.2d at 32.

Though the facts of Opa-Locka and this case are dissimilar, in both instances the municipal authority permitted the bidder to bring his bid into conformance with the specifications after the bids were opened. Our sister court did not approve of this procedure, nor can we.

The Supreme Court of Minnesota put the applicable proposition well in Coller v. City of Saint Paul, 223 Minn. 376, 26 N.W.2d 835, 842 (1947):

If officials charged with the letting of public contracts should be permitted in their discretion to permit bids to be changed after they have been received and opened, it would open the door to the abuses which it is the purpose of the requirements of competitive bidding to prevent and suppress.

See also, Application of Glen Truck Sales & Service, Inc., 31 Misc.2d 1027, 220 N.Y.S.2d 939 (Sup.Ct.1961).

Faced with Gulf’s substantially nonconforming bid, the City had but two proper alternatives: to award the contract to the next lowest bidder who met the specifications, or to reject all bids and readvertise for new ones. The City exceeded its authority by allowing Gulf to bring its bid into conformity with the specifications and then accepting it.

Reversed.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Upon petition for rehearing by ap-pellee Gulf Contracting, Inc. our attention is called to the fact that in our initial opinion we reversed the judgment of the trial court without directions. Appellee correctly points out that this would be construed as returning this cause to the trial court just as if the reversed order had never been made. Bock v. Bock, 311 So.2d 684 (Fla. 2d DCA 1975). As noted in our opinion, the judgment appealed from was a directed verdict entered in favor of the city at the close of appellants’ evidence. At that point the trial court denied injunctive relief and entered final judgment against appellants.

Our opinion is hereby amended to remand this cause to the trial court with direction to afford appellees an opportunity to present evidence on the issues involved. See Cape Coral Bank v. Kinney, 321 So.2d 597 (Fla. 2d DCA 1975); otherwise, the petition for rehearing is denied.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.

      . The only legal requirement for bidding cited to the court was that of Ordinance No. 2-13 which provides in relevant part:
      Sec. 2-13. AUTHORIZATION FOR EXPENDITURE OF CITY FUNDS. * * * When a single lease or purchase of equipment, goods, supplies, merchandise, facilities, etc., involving the expenditure of funds of more than fifteen hundred dollars ($1,500.00) within a fiscal year, advertising for bids or the receiving of bids is mandatory.

      . The instructions also contained other conditions requiring approval of the Engineer’s Manager of Plant Design before any substitution in the specified equipment could be made. Any approval sought under this condition was required to be requested no later than 10 days prior to the time of bidding or after.


source: Caselaw Access Project

author: MILLER, ROBERT P., Associate Judge.

license: Public Domain

text:
    Norman D. PERRY, Peter G. M. Menedis, Kenneth E. Horning, and Loretta T. Sherlock, Appellants, v. The CITY OF FORT LAUDERDALE, Florida, a Municipal Corporation, Appellee.
    No. 75-2033.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    Rehearing Denied Jan. 10, 1978.
    William E. Quisenberry, Jr. of DiGiulian, Spellacy, Bernstein, Lyons & Sanders, P. A., Fort Lauderdale, for appellants.
    W. W. Caldwell, Jr., Donald R. Hall, and Bryson K. Lovejoy, Fort Lauderdale, for appellee.
   MILLER, ROBERT P., Associate Judge.

Appellants, police officers of the City of Fort Lauderdale, filed suit against the City of Fort Lauderdale seeking a declaratory judgment as to their right to receive overtime pay under the applicable provisions of the City Ordinances relating to that subject matter. The suit further sought an accounting for all such monies due. This appeal is from a summary judgment granted in favor of the City.

The Amended Final Summary Judgment to which this appeal is taken reads as follows:

“THIS CAUSE having come to be heard on Defendant’s Motion for Summary Judgment and the Plaintiffs having been duly noticed for the hearing on said Motion, and the Court having considered the pleadings and the file in this cause and having heard argument of counsel and being otherwise fully advised in the premises, the Court finds:
“1. That there is no genuine issue as to any material fact.
“2. That the Plaintiffs and the class they purport to represent are full time police officers of the City of Ft. Lauder-dale, Florida, and as such are public officers entitled to such compensation as is provided by law.
“3. That Section 2-29.7, City Ordinances, Ft. Lauderdale, Florida, is permissive and not mandatory, and to construe it otherwise when read as a whole would be a strained judicial construction contrary to legislative intent apparent in the language of the ordinance.

Accordingly, it is hereby

ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment be and the same is hereby granted.”

Section 2-29.7, City Ordinances of the City of Fort Lauderdale, reads as follows:

“Section 2-29.7 Overtime
“As a general rule, the requirement of frequent and considerable overtime services in a department shall be considered evidence of understaffing or improper organization and shall be subject to review by the City Manager.
“Overtime work shall include only that work performed by employees at the direction of a department head or his authorized representative, which, as a part of a single tour of duty or by reason of a call-back exceeds the number of hours constituting the established work day and work week for the class and for the department.
“Records of all overtime worked shall be kept by the department head and reports thereof shall be made to the Personnel Director on the form and in the manner prescribed.
“Employees required to work overtime may be granted compensatory time off or may be compensated for such overtime provided that:
(a) The class of work is not excepted from entitlement to overtime compensation in Section 2-25, Schedule IV; or, overtime compensation is specifically authorized by the City Manager because of unforeseen, unusual or emergency conditions requiring considerable overtime services.
(b) Wherever feasible, the department head shall grant compensatbry time off to such an employee. Compensatory time may not be cumulative beyond three months from the time earned.
(c) Where it is not feasible to permit the absence of the employee for the purpose of taking such compensatory time off, the department head may, with the prior approval of the Personnel Director, pay the employee for the time served provided there are funds available in the personal services account of the annual departmental appropriation.
(d) Where case payments are to be made for overtime worked, such payment shall be on an hourly basis and the hourly rate shall be computed by dividing the biweekly period and adjusting to the nearest cent.
(e) Entitlement to compensatory time off or cash payment for overtime hours worked shall be for one and one-half times the overtime hours actually worked.
(f) Employees required to perform work on regularly scheduled holidays may be granted compensatory time off or cash payment for the hours actually worked in addition to any holiday pay to which they may be entitled.”

Appellant urges, among other things, that the lower court’s holding that this portion of the City’s pay plan was permissive only was erroneous. We agree and reverse.

We hold that the following language of the above quoted Ordinance, to-wit: “Employees required to work overtime may be granted compensatory time off or may be compensated for such overtime . . .” is not merely permissive but directory and requires that all employees, who otherwise qualify, who work “overtime” as defined shall receive one or the other. Such interpretation is consistent with the language of Subsection (b) of said section which uses the word “shall.” See also Subsections (d) and (e).

A pay plan for a city which is only permissive and subject to the whims of the governing bureaucracy would be meaningless. We find that this section defines for the employees of that City their rights to compensation for “overtime” and the only meaningful interpretation is that it is mandatory.

This is not the first time that the word “may” has been held to be mandatory. See State v. City of Sebring, 115 Fla. 176, 155 So. 669, 672 (1934), where it was held that the phrase “A special tax may be levied was mandatory and not merely permissive under certain circumstances. In Seaboard Air Line Ry. Co. v. Wells, 100 Fla. 1027, 130 So. 587, 593 (1930), the court said:

“The section of the statute above referred to uses the word ‘may’ in designating the matters to be taken into consideration by the commission upon an application; but this court has held that, where a statute says a thing ‘may’ be done by a public official which is for the public benefit, it is to be construed that it must be done. Mitchell v. Duncan, 7 Fla. 13; Jones v. State, 17 Fla. 411; Weston v. Jones, 41 Fla. 188, 25 So. 888. See also Graham v. City of Tuscumbia, 146 Ala. 449, 42 So. 400; Brokaw v. Com’rs of Highways of Bloomington Tp. (People ex rel. Brokaw v. Commissioners of Highways), 130 Ill. 482, 22 N.E. 596, 6 L.R.A. 161.”

For a similar use of the word “may” in another overtime rule see Metropolitan Dade County v. Maddox, 242 So.2d 165 (Fla.3d DCA 1970).

For the reasons stated above the Amended Final Summary Judgment below is reversed and this case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ALDERMAN, C. J., and CROSS, J., concur.


author: DOWNEY, Judge.

text:
    Wade S. WEEMS, M.D., E. Costatino, Jr., M.D., Weems-Costatino, P.A., and Hartford Accident and Indemnity Company, Appellants, v. Barbara DAWSON, Administratrix of the Estate of Jack Dawson, Deceased, Henry L. Kaye, Esquire, Administrator of the Estate of Von D. Mizell, M.D., Deceased, North Broward Hospital District, etc., et al., Appellees.
    No. 75-2298.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.

      Larry A. Klein, West Palm Beach, and Pyszka, Kessler, Adams & Solomon and Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellants.
    Robert Orseck, of Podhurst, Orseck & Parks, Miami, and Susan Goldman, Miami, and Simons & Schlesinger, Hollywood, for appellees.
   DOWNEY, Judge.

After a jury verdict in favor of the defendants/appellants in a medical malpractice case, the trial judge granted appel-lee a new trial. That order granting a new trial is the subject of this appeal.

Jack Dawson, appellee’s decedent, while working on a construction site, fell one story and landed on a wheelbarrow, causing internal injuries. Dawson was admitted to North Broward Hospital on September 25, 1972, by Dr. Von D. Mizell who assumed the general responsibility and management of the patient throughout his hospital stay. During the course of treatment Dr. Mizell requested consultation with a general surgeon, Dr. Oscar S. Lenit, Jr., and with a firm of urologists, Weems and Costatino, P.A. On September 28, 1972, Drs. Weems and Costatino determined that surgery was indicated and on that day Dawson’s right kidney was removed. The evidence is clear that Dawson continued to have some internal bleeding after the operation, as well as some external bleeding at the operative site. The negligent conduct charged against all of the defendants in this case was asserted to have taken place during the days immediately following the kidney removal. However, this appeal involves only defendants Weems & Costatino. The companion cases are Case Nos. 76-32, 76-33, 76-40 and 76-189, Fla.App., 352 So.2d 1200.

The appellee adduced evidence from several expert witnesses to prove that Drs. Weems and Costatino were negligent in not operating on Dawson a second time during the several days after the kidney removal and prior to his death on October 3, 1972, because all of the signs indicated that Dawson was experiencing severe internal bleeding. Appellee’s witnesses maintained that, based upon those signs, Dawson’s only chance to survive was a second operation in order to locate the source, of the bleeding and stop it. These experts testified that appellants failed to meet the usual and customary standards of care under the same or similar circumstances and in the same or similar community.

It was appellants’ position that, since Dawson had developed a serious blood coagulation disorder following the first operation, a second operation would have been very risky. It was their judgment that it was safer to treat Dawson with blood transfusions and hope the internal bleeding would eventually cease. Several experts testified on behalf of the appellants that their treatment was not negligent because the blood coagulation disorder precluded another operation.

The jury returned a verdict in favor of the appellants, but the trial court granted a new trial, stating in his order:

“[T]he verdict of the jury in the instant case shocks the judicial conscience of this Court so that the Court is of the opinion that said verdict was based upon passion, prejudice, sympathy or some other consideration outside of the evidence, or that the jury failed to understand, weigh or consider the force and credibility of the evidence or failed to follow or understand the charges of this Court, and the Court having carefully considered the principles set forth in the matters of Cloud v. Fallis [Fla.], 110 So 2nd 669, Russo v. Clark [Fla.], 147 So 2nd 1, Pittman v. Smith [Fla.App.], 252 So 2nd 279 and Hubbard v. Brown [Fla.App.], 262 So 2nd 267 and being of the opinion that this Court therefore is duty bound to set aside the verdict of this jury and to grant the plaintiff a new trial upon the ground that said verdict was contrary to the manifest weight of the evidence . . :

This appeal is from that order.

Appellants contend that the trial judge erred in granting appellee a new trial because there was substantial competent evidence in the record to support the jury verdict. There appears much to be said for the wisdom of the argument that, if jury verdicts mean anything, a trial judge should not be authorized to grant a new trial where there is substantial competent evidence to support the verdict. But, while it is not at all clear when a trial judge can be held in error for granting a new trial, the cases do seem uniform now in holding that the existence of substantial competent evidence supporting the jury verdict in the record does not preclude the trial judge from granting a new trial, Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Dubois Fence & Garden Co. v. Stevens, 296 So.2d 116 (Fla. 1st DCA 1974); and Danek v. Hoffman, 189 So.2d 893 (Fla. 2d DCA 1966).

Turning to the principles applicable to the trial court’s consideration of a motion for new trial, we know from the leading case of Cloud v. Fallis, supra, that:

“When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, Poindexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905, Mead v. Bentley, Fla., 61 So.2d 428, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached, . . . ” 110 So.2d at 673.

Furthermore, judicial discretion has been defined as:

“ ‘The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.’ ” Castleweed International Corporation v. LaFleur, 322 So.2d 520, 522 (Fla.1976).

Thus, one attacking an order granting a new trial has the burden to make error clearly appear and it is a very heavy burden. Webster v. Harmon, 240 So.2d 69 (Fla. 4th DCA 1970).

The function of an appellate court in reviewing an order granting a new trial is commented upon in the dissenting opinion of Judge Smith in Ward v. Orange Memorial Hospital Association, Inc., 193 So.2d 492 (Fla. 4th DCA 1967):

“In the very early case of Schultz v. Pacific Insurance Co., 1872, 14 Fla. 73, the Supreme Court, after there noting that the verdict of the jury was founded on complicated and contradictory evidence which required an investigation into the character and credibility of the witnesses in order to compare and weigh the evidence and that this is the proper function of a jury, then continued by stating:
‘While it is true that this is the proper function and province of the jury, it is at the same time true that in cases where there is conflict in the testimony, it is within the province and power of the court to set aside a verdict which does not reach a substantially just conclusion in cases where the conflicts are of such character and the circumstances of such nature as to give just grounds for the belief that the jury acted through prejudice, passion, mistake or any other cause which should not properly control them. This power exists in the court. In exercising it the court does not encroach upon the province of the jury, for the reason that it does not conclusively settle facts in the form of a verdict, but only gives another jury the opportunity of so doing, and of correcting what appears to be a mistake. If this is not properly within the power of the court, then the result is that the first twelve men that happen to constitute a jury in a given case are by law the final arbiters of the facts in that case. There is no such principle of law.’ ” Id. at 496.

That same opinion then goes on to suggest a test to be applied in reviewing such an order:

“ . . . the test on review [of a motion for new trial] is not whether the appellate court agrees with the evidentia-ry conclusions of the trial court or whether the jury verdict finds support in the record but whether there is sufficient evidence to support the evidentiary finding made in the order granting a new trial.” Id. at 497.

Another helpful test for applying these principles to appellate review of an order granting a new trial is contained in the concurring opinion of Justice Overton in the LaFleur case, supra, wherein, it is stated:

“What is the test that an appellate court must apply to review a discretionary act of a trial judge? In an extended comment about the discretionary power, a federal court said: ‘Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.’ Delno v. Market Street Railway Company, 124 F.2d 965, 967 (9 Cir., 1942).
“It is my opinion that in reviewing a true discretionary act of a trial judge, the appellate court must fully recognize the superior vantage point of the trial judge and apply the ‘reasonableness’ test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court’s action was unreasonable and that it had abused its discretion.” 322 So.2d at 524.

As we pointed out earlier, there is substantial competent evidence on both sides of the issue of appellants’ negligence which was presented to the jury. However, the trial judge, as the cases keep reminding us, was on the scene familiar with the temperature and pulse of the trial. In reflecting upon the trial he found that the verdict in favor of appellants was contrary to the manifest weight of the evidence. Furthermore, the transcript of the argument on Motion for New Trial demonstrates that the trial judge was quite convinced that the verdict did not comport with the justice of the case. So we find ourselves in a situation quite analogous to that of the Supreme Court of Florida in Pyms v. Meranda, 98 So.2d 341 (Fla.1957), where it said:

“In the instant case the Judge who presided at the trial heard all of the evidence, viewed all of the witnesses and was in a prime position to give consideration to the credibility of those who testified and the relative weight to be accorded their testimony. After all of this direct contact with the actual trial of the cause, the trial judge reviewing the matter in retrospect on the motion for new trial was of the opinion that the jury acted through sympathy or mistake, that its verdict was contrary to the manifest weight and probative force of the evidence and the justice of the cause and that the verdict was contrary to applicable law.” Id. at 343.

Applying the LaFleur test to this case, we cannot say the trial court’s order granting appellee a new trial is arbitrary, fanciful, or unreasonable, or that no reasonable man would take the view adopted by the trial court. Accordingly, under the established rules, appellants have failed to demonstrate that the trial judge abused his broad discretion in granting appellee a new trial.

AFFIRMED.

ALDERMAN, C. J, and PARHAM, HARRY C., Associate Judge, concur.


text:
    Barbara DAWSON, Administratrix of the Estate of Jack Dawson, Deceased, Appellant, v. Wade S. WEEMS, M.D., E. Costatino, Jr., M.D., Henry L. Kaye, Esq., Administrator of the Estate Von D. Mizell, M.D., Deceased, North Broward Hospital District, a political subdivision of the State of Florida d/b/a Broward General Medical Center, Weems-Costatino, P.A., Professional Insurance Company of New York, a New York Corporation, Hartford Accident and Indemnity Company, a Connecticut Corporation, Argonaut Insurance Company, a California Corporation, Oscar S. Lenit, Jr., M.D., and Oscar S. Lenit, Jr., P.A., General Reinsurance Corporation, a New York Corporation, and Francis Everett Brander, as lead Underwriter subscribing to certificate of insurance numbered 191-71-MC-108, Appellees (three cases). Barbara DAWSON, Administratrix of the Estate of Jack Dawson, Deceased, Appellant, v. Oscar S. LENIT, Jr., M.D., and Oscar S. Lenit, Jr., P.A., Appellees.
    Nos. 76-32, 76-33, 76-40 and 76-189.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    Rehearings Denied Jan. 10, 1978.

      Robert Orseck, of Podhurst, Orseck & Parks, Miami, Sheldon J. Schlesinger of Si-mons & Schlesinger, and Susan Goldman, Miami, for appellant.
    Paul R. Regensdorf, of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee— North Broward Hospital District.
    George E. Bunnell, of Huebner, Shaw & Bunnell, Fort Lauderdale, for appellees— Henry L. Kaye, Administrator of the Estate of Von D. Mizell, M.D., and Francis Everett Brander, as lead Underwriter subscribing to Certificate of Insurance.
    Edna L. Caruso, of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellees — Lenit.
   DOWNEY, Judge.

These consolidated cases arise out of appeals from separate orders entered in a medical malpractice suit brought by appellant against the North Broward Hospital District d/b/a Broward General Medical Center and three doctors, Weems, Costati-no, Lenit and the personal representative of the estate of a fourth doctor, Von D. Mizell. A separate appeal by Weems and Costatino is treated in an opinion filed in Case No. 75-2298, Fla.App., 352 So.2d 1196.

Jack Dawson, appellant’s decedent, while working on a construction site, fell one story and landed on a wheelbarrow, causing internal injuries. Dawson was admitted to North Broward Hospital on September 25, 1972, by Dr. Von Mizell, who assumed the general responsibility and management of the patient throughout his hospital stay. During the course of treatment, Dr. Mizell requested consultation with a general surgeon, Dr. Oscar S. Lenit, Jr., and with a firm of urologists, Weems and Costatino, P.A. On September 28, 1972, it was determined that surgery was indicated as a result of which Dawson’s right kidney was removed. The evidence is clear that Dawson continued to have some internal bleeding after the operation, as well as some external bleeding at the operative site. The negligent conduct charged against all of the defendants in this case is asserted to have taken place during the days immediately following the kidney removal.

Dr. Oscar S. Lenit, Jr., M.D. (Cases No. 76-40 and 76-189).

The jury found Dr. Lenit not guilty and the trial court denied appellant’s motion for a new trial as to Dr. Lenit.

Dr. Lenit is a general surgeon who was called in for consultation by Dr. Mizell. There was evidence adduced that during the course of the operation to remove Dawson’s kidney Dr. Weems told a nurse to call Dr. Lenit to the hospital and that Dr. Lenit came into the operating room for a few minutes, looked at the patient and then departed, promising to be available if needed. Other witnesses testified that Dr. Lenit was never in the operating room and that he had no professional relationship with Dawson during or after the operation. Several experts testified that, whether or not Dr. Lenit was in the operating room, his conduct in the case did not fall below the required standard of care. On the other hand, one expert testified that, if Dr. Lenit had been in the operating room during the operation, he should have followed the patient thereafter. In any event, the testimony can be characterized as in conflict. There is substantial competent evidence to support the jury verdict in Lenit’s favor and the trial judge, as he had a right to do on this record, approved the verdict by denying plaintiff-appellant’s motion for new trial.

We have examined appellant’s other contentions regarding the comments of Lenit’s counsel in closing argument and fail to find any reversible error.

Dr. Von D. Mizell, M.D., (Case No. 76-33)

The court directed a verdict in favor of Dr. Mizell. It is this order which appellant appeals.

Dr. Mizell was the physician who admitted Dawson to the hospital and who continued in charge of Dawson’s general management and care. However, the evidence does not show that Dr. Mizell acted in concert with Drs. Weems and Costatino vis-a-vis the kidney operation and post operative care and the ensuing complications. As. Dr. Turke, one of plaintiff-appellant’s witnesses, testified:

“A Well, normally speaking, when a consultant takes over and does the operation, he is the primary treating physician at that time and the referring physician takes a back seat, unless there is some prior arrangement.
“Suppose an internist sends a patient to me and says, T want you to follow the blood and the electrolytes’ — that is all that he would be doing.
“But in a surgical procedure it is the surgeon’s primary responsibility.” (T. 688)
******
“Do you have an opinion as to whether Yon D. Mizell in any way deviated from the standards of care with regard to the care and treatment of this patient?
“A No.
“Q You have no opinion or he did not?
“A No, I don’t think he deviated. He called in consults when he knew he was in over his head.” (T. 671-672)

Thus, we believe the applicable rule is to be found in Dohr v. Smith, 104 So.2d 29 (Fla.1958), rather than in O’Grady v. Wickman, 213 So.2d 321 (Fla.4th DCA 1968). In Dohr two of the patient’s false teeth became dislodged and lost while the anesthetist was administering oxygen during surgery to remedy a duodenal ulcer. The plaintiff contended that both the surgeon and anesthetist were negligent, the surgeon vicariously as “captain of the ship.” However, the court held:

“The surgeon may have been generally in command from the beginning of the operation to the end or, as appellants term him in the brief, ‘captain of the ship’ but it is clear to us that he and the anesthetist were working in highly expert fields peculiar to each and that despite the common goal, the successful repair of the patient’s ulcer, their responsibilities were not inextricably bound together. Hudson v. Weiland, 150 Fla. 523, 8 So.2d 37.” 104 So.2d at 32.

Finally, we note that there is no expert testimony that Dr. Mizell’s care and treatment of Dawson fell below the required standard of care. All of those expressing an opinion on the subject (one of whom was the plaintiff’s expert) opined that Dr. Mizell’s conduct was within the limits of the required standard of care.

Accordingly, in our opinion the trial judge was correct in directing a verdict in favor of the personal representative of Dr. Mizell’s estate.

North Broward Hospital District (Case No. 76-32)

The appellant appeals from the trial court’s granting North Broward Hospital a directed verdict.

The focal period in this case is the post operative period from September 30 through October 2. Thus, the negligence of the North Broward Hospital District arises, if at all, out of the failure to respond to the need for furnishing fresh blood to Dawson during that three day period.

On September 30th, two days after the operation, Dawson was still suffering from internal bleeding from an unknown source and his blood chemistry was continuing to deteriorate. On that date, Dr. Costatino ordered two units of the “freshest blood available.” That same night he again ordered one unit of the freshest blood possible. On October 1st Dr. Costatino ordered two units of blood for Dawson. And on October 2nd he ordered two units of the freshest blood be prepared and cross-matched and given that evening.

The hospital contends that it furnished “blood” or “freshest available blood” or “freshest possible blood” as ordered by the doctor. But the evidence shows that the hospital advised Dr. Costatino that it was having trouble getting fresh blood since there was difficulty in cross matching blood for Dawson. Dr. Costatino testified that he was told by the hospital blood bank that “in the morning they would call in another group of donors to check to see if they could get a walking fresh donor.” There is also evidence that the first time the hospital ever asked Mrs. Dawson to bring in some neighbors or friends to be fresh donors was on the night of October 2nd. Mrs. Dawson furnished the donors the next morning, but Dawson expired in the early morning hours of October 3rd. It is clear from the evidence that bank blood is not as effective as fresh blood and that using bank blood, did not give Dawson the best chance available to remedy his blood chemistry problems; that fresh blood would increase his chances of survival.

Finally, one of the appellant’s experts testified that in a hospital the size of the North Broward Hospital you should be able to get fresh blood in a matter of an hour.

In its brief the hospital states:

“While the HOSPITAL takes no issue with the proposition that fresh blood may have been necessary to give MR. DAWSON his ‘best chance,’ what is required in order to support the plaintiff’s position on this appeal is some direct medical testimony to the effect that the failure to give such a best chance contributed to his death or that, if given, MR. DAWSON would have been alive today. In the absence of such testimony, it is respectfully submitted that the directed verdict in favor of the HOSPITAL must be affirmed.”

But as appellant points out, the ease of Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla.3d DCA 1974) rejected that contention of the hospital in stating:

“. . . The issue of proximate cause was as to whether appellee’s malpractice contributed to the cause of death. In this connection, the testimony that appellant’s decedent would have had a better chance to survive if he had received prompt medical attention was sufficient to form a basis for the submission of the issue to the jury.” (Emphasis supplied.) Id. at 750.

In view of the foregoing, it appears to us that there was sufficient evidence upon which the jury could have found the hospital negligent. As the Supreme Court of Florida pointed out in Castlewood International Corporation v. LaFleur, 322 So.2d 520 (Fla.1976), in contrasting our appellate function in reviewing an order granting a motion for directed verdict and an order granting a new trial:

“Where a trial judge is applying a rule of law such as ruling on a motion for a directed verdict, this is not a discretionary act, and an appellate court may substitute its judgment for that of the trial judge. However, where the act of the trial judge is a true discretionary act, the test of reviewability is entirely different.” Id. at 523.

Accordingly, we find the trial court erred in directing a verdict in favor of the North Broward Hospital District.

The judgments appealed from in Cases Numbered 76-33, 76-40 and 76-189 are affirmed. The judgment appealed from in Case Number 76-32 is reversed and remanded for a new trial.

ALDERMAN, C. J., and PARHAM, HARRY C., Associate Judge, concur.

      . Dr. Mizell was deceased at the time of trial.


text:
    Barbara Lou CICCARELLI, Appellant, v. Virgil CICCARELLI, Appellee.
    No. 76-936.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    Rehearing Denied Jan. 9, 1978.
    Earl L. Maxwell, Jr., West Palm Beach, and Robert L. Saylor, North Palm Beach, for appellant.
    Larry A. Klein, West Palm Beach, for appellee.
   MILLER, ROBERT P., Associate Judge.

This is an appeal by the appellant-wife of a Final Judgment in a dissolution case wherein the Circuit Judge did not follow the exact recommendations of the Special Master who took the testimony below.

Originally appellant contested the trial judge’s failure to follow the Special Master’s recommendations concerning visitation rights and the major portion of the briefs are concerned with that point. However at oral argument appellant’s counsel has announced such matter as being now moot in that a subsequent order has been entered by the trial court allowing visitation. The other two variances between the Master’s report and the Final Judgment have to do with the length of time for the payment of rehabilitative alimony and the amount of attorney’s fees to be awarded appellant’s counsel.

The Special Master recommended payment of rehabilitative alimony for a period of three years, but the Final Judgment though ordering payment of rehabilitative alimony in the same amount per month provided that it shall only run two years. The Master further recommended payment of the attorney’s fees in the amount of $3,600.00 to appellant’s counsel and the Final Judgment provided that appellee should pay $2,500.00 “in addition to any temporary fees already awarded.”

The appellant contends that the modifications of the recommendations made by the Special Master were made by the trial judge without his having actually reviewed the testimony heard by the General Master. In fact appellant contends, and the record bears out, that the partial transcript filed as a portion of the record on appeal was not transcribed until after the entry of the Final Judgment.

This court is certainly aware that where there is conflicting testimony and the veracity of the witnesses is a question to be considered that the master, who has seen and heard the witnesses and observed their demeanor while testifying, is in a better position than the trial court to determine such conflicts and that the trial court should not, in such cases, overturn the findings of the master unless they are clearly erroneous. See Harmon v. Harmon, 40 So.2d 209 (Fla.1949), and Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974).

Certainly the issues argued in the briefs concerning visitation rights would be governed by the above principle of law. However that issue is now apparently moot.

With regard to the remaining matters the trial court had before it the Special Master’s findings which included facts concerning the parties’ education, income or capacity to obtain income, their professions, their assets and the need of the appellant. There is no showing that any issue existed concerning these facts. The chancellor merely decided from these facts that the rehabilitative alimony should only run for a period of two years rather than three years. We find such change consistent with the findings of fact of the Master and certainly within the bounds of the chancellor’s discretion. See Vogel v. Vogel, 323 So.2d 306 (Fla. 3d DCA 1975).

Likewise we find the variance in the amount of the attorney’s fee from that recommended by the Master to be consistent with the findings of fact contained by the Master’s report. For these reasons the Final Judgment below is AFFIRMED.

ALDERMAN, C. J., and CROSS, J., concur.


author: DAUKSCH, Judge. ALDERMAN, Chief Judge,

text:
    Robert Earl PAULEN, Appellant, v. STATE of Florida, Appellee.
    No. 76-1938.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 10, 1978.

      Richard L. Jorandby, Public Defender, Frank B. Kessler and Jerry L. Schwarz, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

A manslaughter conviction is appealed. We reverse.

Appellant is accused of having killed a person by driving his automobile into her while he was under the influence of intoxicating liquor. At trial a policeman was asked “. . . when you advised him of his Miranda warnings, did he make any statements to you?” Policeman: “As I recall, at that time he didn’t.” It came out that Appellant later voluntarily made statements in regard to the accident and his activities before the accident.

In Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976), it was held that it is improper to allow testimony concerning an accused’s silence after Miranda warnings. It is fundamental, constitutional error incapable of being rendered harmless by later events. See also Williams v. State, 335 So.2d 854 (Fla. 4th DCA 1976); especially Judge Dow-ney’s special concurrence which indicates the facts there are quite on point. Appellant must be afforded a new trial.

REVERSED and REMANDED.

CROSS, J., concurs.

ALDERMAN, C. J., dissents with opinion.

ALDERMAN, Chief Judge,

dissenting:

In my opinion no error was committed. The officer’s testimony, when considered in context, cannot reasonably be interpreted as a comment on the defendant’s right to remain silent.

The prosecutor by his questioning established that the defendant had been given his Miranda warnings:

Q And at that point in time when he became a suspect, you did advise him of his Miranda warnings?
A Yes, sir. I did.
Q And at that time what did he tell you?

Defense counsel then interjected:

Your Honor, I don’t know what point in time that was. This witness hasn’t yet testified to when he told him this.

The prosecutor established that Miranda warnings were given shortly after the officer arrived at the scene of the crime. He then proceeded:

Q Okay. And when you advised him of his Miranda warnings, did he make any statements to you?
A As I recall, at that time he didn’t. I filled out a sheet later which I asked questions and he answered them at that time.

Certainly a police officer should be able to establish by his testimony when he gave Miranda warnings to a defendant. Likewise, if a defendant makes any statements, the officer should be allowed to testify when the statements were made — -particularly if, as in the present case, it is defense counsel who insists that the officer tell when the defendant’s statements were made. I do not believe that it is a comment on a defendant’s right to remain silent, for an officer to say that the defendant had been given his Miranda warnings at the scene of the crime and that at a later time he made a statement to the officer. If such were the case it would be impossible to say when a defendant made any statements because it could be implied that he said nothing before that time. This is absurd; but the court in effect reaches the same result in this case by reversing defendant’s conviction based solely upon the testimony quoted above. I fail to see how the officer’s testimony, when considered in the context in which it was given, could be reasonably interpreted as a comment on the defendant’s right to remain silent.

Even if the officer’s testimony is interpreted to have been a comment on the defendant’s right to remain silent, by no stretch of the imagination, in the context of the present case, can I conceive this testimony to have been harmful to the defendant. I recognize that the Supreme Court has said that any comment on an accused’s exercise of his right to remain silent is reversible error, without regard to the harmless error doctrine. Bennett v. State, 316 So.2d 41 (Fla.1975); Shannon v. State, 335 So.2d 5 (Fla.1976). This court has consistently followed Bennett and Shannon, although in two recent cases we have certified questions to the Supreme Court which would allow it to reconsider its position. Collins v. State, 340 So.2d 516 (Fla. 4th DCA 1976); Sylvester v. State, 341 So.2d 203 (Fla. 4th DCA 1977). The State has taken certiorari in Collins and Sylvester, but no final decision has yet been rendered by the Supreme Court. To reverse the present case solely on the basis of the officer’s testimony quoted above, would, in my opinion, allow the defendant a new trial because of something that at the most was harmless and which in no conceivable way affected the rights of the defendant.

I would affirm.


author: DAUKSCH, Judge.

text:
    Winston L. GARESCHE and Elizabeth Garesche, his wife, Appellants, v. TEXTURED COATINGS OF AMERICA, INC., etc., et al., Appellees.
    No. 76-1952.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 9, 1978.

      F. Hartselle Baker, Orlando, for appellants.
    Ronald A. Cyril, of Nelson, Hesse, Cyril & Weber, Sarasota, for appellee Textured Coatings of America, Inc.
    Pierre Lee Steward, Orlando, for appellee Blackton, Inc.
   DAUKSCH, Judge.

Appellant sued the manufacturer, distributor and applicator of Tex-Cote, a fiberglass and asbestos material advertised to be an end to painting problems on house exteriors. The complaint alleges breach of warranty, fraud and negligence on the part of the various Defendants in the advertising, manufacturing and applying of the product. Upon a review of the evidence presented we find the court erred in directing a verdict for the Defendants.

For example, Appellants proved they relied upon allegedly untrue statements in a Textured Coatings of America, Inc. brochure which was distributed by or through the other Appellees. Appellants established their reliance thereon was to their detriment and otherwise established a prima fa-cie case against the Appellees. In addition, the uncontroverted proof was that the Tex-Cote, which had deteriorated to an unsightly peeling, could not be removed and it would take $1,650.00 to cover the unappealing areas with aluminum siding. Of course, maybe the Appellees at trial can prove otherwise but the matter should be tried. We remand this matter for trial on all issues.

REVERSED and REMANDED with directions.

CROSS and ANSTEAD, JJ., concur.


author: LETTS, Judge. DAUKSCH, Judge,

text:
    Calvin E. LINDA, Appellant, v. Ina LINDA, Appellee.
    Nos. 77-959, 77-760.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 9, 1978.

      Barry D. Schreiber, North Miami Beach, for appellant.
    James Fox Miller, of Miller & Schwartz, P.A., Hollywood, for appellee.
   LETTS, Judge.

This interlocutory appeal comes to us from an order denying discovery in a dissolution of marriage proceeding. The question presented is whether an adulterous wife must disclose the actual name of her lover. We affirm.

The so called “no fault” divorce law was enacted, in part, to get rid of emotional and financial blackmail made possible by the continued threat of mental torture by way of embarrassing harassment through public washing of dirty linen.

Unfortunately, the appellate courts have chipped away at it and much of the fault concept has returned. Yet, in our opinion the appellate courts are not to blame for this retrogression because the Florida Statute § 61.08(2) (1973) as enacted, provides in part:

In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties, (emphasis supplied).

Pursuant to this provision, this very court in Oliver v. Oliver, 285 So.2d 638 (Fla. 4DCA 1973) held that evidence of the wife’s gross misconduct was admissible. Subsequently, in Pro v. Pro, 300 So.2d 288 (Fla. 4DCA 1974), we required the husband to answer the question as to whether or not he had committed adultery upon the same premise stated in Oliver. However, in both of these cases the courts were careful to note that the extent to which such evidence would be admitted would be left to the trial judge’s discretion. In that regard we would repeat what we said recently in McAllister v. McAllister, 345 So.2d 352 (Fla. 4DCA 1977), at 354-355,

At all events, we would urge that evidence of misconduct be limited to gross situations such as existed in Oliver, with no mitigating circumstances, otherwise, as was conceded in that case, we will return to the very type of “. often sordid and provocative testimony of fault . . . that lead to the enactment of the so-called no-fault dissolution of marriage chapter.”

In the case now before us, the trier of the fact exercised that discretion and ruled that the name of the wife’s lover need not be revealed. In order to overturn that, we must find that the judge abused his discretion and we see nothing in the record to establish that he did.

The question of whether or not the wife actually committed adultery would be proper where, as here, she is claiming alimony. However, the record does not suggest why it is important to know the name of the person she committed it with. If the record revealed, for example, that her acts involved an incestuous relationship with her brother rendering her unfit for custody of the children, then we might be otherwise disposed. Yet, the record here is silent as to why this particular question is important. This being so, we cannot find the honorable trial judge to be in error.

AFFIRMED.

CROSS, J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting.

I respectfully dissent. The question presented is whether an admitted adulterous wife must disclose the name of her lover(s) when asked in discovery proceedings in a case in which the wife seeks alimony and child custody. I would answer in the affirmative.

Section 61.08, Florida Statutes (1975), provides:

“The court may consider the adultery of a spouse and the circumstances thereof in determining whether alimony shall be awarded to such spouse and the amount of alimony, if any, to be awarded such spouse.” (Emphasis added.)

Section 61.13(f), Florida Statutes (1975), provides, inter alia, that the moral fitness of a parent is relevant to child custody determination. Here, the wife has denied committing adultery in the marital home and the husband has sought to find the name or names of the persons with whom the wife committed adultery. While I would not limit the holding, it is quite relevant to a child custody issue whether the wife has made her small children aware of her immoral conduct and the husband does not have to accept on its face her bare assertion that her adultery only occurred outside her home. Therefore, the names of any witnesses to the adulterous conduct, especially the participants, are relevant to issues in the dissolution case or at least might lead to relevant evidence. Fla.R. Civ.P. 1.280(b)(1) provides:

“Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

See Pro v. Pro, 300 So.2d 288 (Fla. 4th DCA 1974), and Oliver v. Oliver, 285 So.2d 638 (Fla. 4th DCA 1973). McClelland v. McClelland, 318 So .2d 160 (Fla. 1st DCA 1975).

In the most recent and well reasoned opinion of Judge LETTS in McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), it was held that the trial court should consider a party’s misconduct when determining alimony. Therefore the details of misconduct, even if admitted as in McClel-land, supra, may be admissible at trial and certainly are discoverable as mentioned above.


author: MELVIN, Judge.

text:
    W. M. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. FF-493.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1977.
    Michael J. Minerva, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   MELVIN, Judge.

Appellant-defendant appeals from a judgment and sentence for the crime of aggravated battery.

The judgment was based upon what purports to be defendant’s plea of no contest. The defendant urges error for failure of the trial court to determine: 1) voluntariness of his plea, and 2) whether there was a factual basis for the charge to which the plea was addressed. We consider these matters in reverse order. This Court, in Tucker v. State, 316 So.2d 297 (Fla.1st DCA 1975), held that as to pleas of nolo contendere, such determination is not required. As applied to a plea of guilty, a factual determination is required. Williams v. State, 316 So.2d 267 (Fla.1975).

We note that effective July 1, 1977, Fla. R.Crim.P. 3.172(a) requires the trial judge to satisfy himself that the plea of guilty or nolo contendere is voluntarily entered and that there is a factual basis for it, before accepting the plea.

We are concerned with the more serious question as to whether the defendant ever knowingly entered a plea with knowledge as to its possible or probable consequence. The defendant rejected the court’s offer to appoint the public defender and elected to represent himself. The record is silent as to the extent of his education.

The record reveals that upon his arraignment, these events occurred:

“THE COURT: Do you understand the charge?
“THE DEFENDANT: Yes, sir.
“THE COURT: How do you plead?
“THE DEFENDANT: Guilty of an accident, your honor.
“THE COURT: What did you say?
“THE DEFENDANT: Guilty of an accident, judge, your honor.
“THE COURT: What do you mean, ‘an accident’?
“THE DEFENDANT: I didn’t mean to shoot her. Her auntie pushed her into the shot. I didn’t intend to shoot her, and her auntie pushed her over there just as I went to pull the trigger.”

The defendant went into what he said were the details of a family fuss, that all he intended to do was to shoot into the ground “. . . to make them all behave, and her auntie pushed her right into the shot.” Whereupon, the following transpired:

“THE COURT: Well, if it was a pure accident, you are not guilty.
“THE DEFENDANT: That’s what it was, an accident, because I wasn’t shooting at her.
“THE COURT: Well, I guess I’ll have to enter a plea of not guilty. Are you sure you don’t want a lawyer to represent you, because you’ve got to go to trial now.
“THE DEFENDANT: I have to go to trial?
“THE COURT: Yes. You plead not guilty, so far as I’m concerned.
“THE DEFENDANT: I plead guilty to the shot. I plead guilty to that.
“THE COURT: That is not what you are charged with, you are charged with aggravated battery, that is, a shooting with a deadly weapon, and with inflicting bad injuries.
“THE DEFENDANT: It just cut the skin on her leg right there. It just cut the skin on the outside, didn’t go in.
“THE COURT: All right, I’m entering a plea of not guilty. If what you say is true, you are not guilty of the charge. Do you want to enter a plea of no contest and let me refer it for pre-sentence investigation? (Emphasis supplied)
“THE DEFENDANT: Yes, sir. I would appreciate it.
“THE COURT: All right, I’ll do that. I will accept a plea of nolo contendere and refer it for a presentence investigation. Are you in jail?
“THE DEFENDANT: Yes, sir.
“THE COURT: All right, Mr. Sheriff, get him in touch with the probation officer. All right.”

The defendant had, in two short sentences, been advised that: 1) the court was entering for him a plea of not guilty, and 2) if his statement was true, he was not guilty of the charge. Whereupon, the court asked defendant if he wanted “. . .. to enter a plea of no contest and let me refer it for pre-sentence investigation?” (Emphasis supplied) In this posture, the defendant could have assumed that a plea of not guilty was the same as a plea of no contest. No one advised him as to the drastic difference, or as to the consequence of a no contest plea.

The judgment and sentence is reversed, the no contest plea set aside and the cause is remanded for further proceedings.

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


text:
    Frances E. SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. GG-290.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 10, 1978.
    Michael J. Minerva, Public Defender, Catherine L. Dickson and Louis G. Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., Susan E. Mole and Pamela L. Lutton, Asst. Attys. Gen., for appellee.
   MELVIN, Judge.

We review the order of the circuit court denying appellant the right to receive a copy of the most recent clinical summary as to his mental condition as prepared by the staff of the Florida State Hospital. He claims entitlement to such record based upon Section 394.459(9), Florida Statutes (1975). The record reveals the policy of the hospital is to deny a patient access to such record. No testimony was offered as to any possible adverse effect the review of the record would have on the defendant.

The pertinent part of said section provides:

“ . . . The clinical record shall not be a public record and no part of it shall be released, except: (a) The record may be released to physicians, attorneys, and government agencies as designated by the patient, his guardian, or his attorney. . . . ” (Emphasis supplied)

Any ambiguity in the statute as to whether the report should be released to the patient should be resolved in favor of the patient. Whealton v. Whealton, 184 So.2d 228 (Fla.2d DCA 1966). The legislature, in its wisdom, placed with the patient the right to designate the person and agencies named in the section who may have access to his record. It would follow that, in order to properly exercise that right, the legislature clearly intended that the patient have access to the record in order to determine whether and to whom he wished the report to be released.

REVERSED for further proceedings consistent with this opinion.

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


author: GRIMES, Judge.

text:
    Arnold Jefferson McEVER, III, Appellant, v. STATE of Florida, Appellee. Betty Lou HABER, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-1437 and 75-1438.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.
    Rehearings Denied Jan. 6, 1978.
    Bennie Lazzara, Jr. of Gonzalez & Laz-zara, P.A., Tampa, for appellant McEver.
    Mark R. Hawes and Barry A. Cohen, Tampa, for appellant Haber.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

These are appeals from convictions of first degree murder. The cases were tried together. Upon the jury’s recommendation of mercy, both appellants were sentenced to life imprisonment.

James Joseph Brandt was the admitted killer of Albert Haber. Brandt pled guilty to first degree murder, and pursuant to a plea bargain he received a life sentence. Brandt testified that Betty Lou Haber engaged him and her son by a previous marriage, Arnold Jefferson McEver, to kill her husband in the Haber home on the night of January 24, 1975. The plan was to make it appear as though the murder had occurred during the commission of a burglary. Brandt said that before Mrs. Haber went out for the evening, she left open a sliding glass door to facilitate the entry into the Haber residence that night. Brandt explained that he and McEver went to the residence as planned and put some fake pry marks on the door to make it look like a forceful entry had occurred. The house was placed in disarray in order to make it appear that it had been burglarized. Then Brandt and McEver lay in wait for Mr. Haber to enter the house.

When Haber came home, Brandt struck him with a rifle butt. Then Brandt and McEver beat him several times in the head. The men took some guns and other items from the house with them when they left. Brandt later decided that Mr. Haber might not be dead so he returned alone and shot him in the mouth with a revolver. An autopsy later revealed that the beating rather than the gunshot wound caused Mr. Haber’s death. While Brandt was the only witness who directly implicated the appellants in the killing, there was other substantial evidence which corroborated the fact that McEver participated in the murder and that Mrs. Haber was active in the planning of how it was to be accomplished.

The appellants argue ten points on appeal. The only one which merits discussion relates to the giving of jury instructions on felony-murder over the appellants’ objections. The appellants did not object to the instructions on premeditation, but they contended there was no evidence that the murder had been committed in the course of the commission of any of the felonies specified by the statute. Section 782.04, Florida Statutes (1973). From an examination of the instructions, it is evident that the court believed that there was sufficient evidence from which the jury could conclude that the murder might have been committed in the course of a burglary because the court charged the jury on breaking and entering with intent to commit a felony. The court defined a felony as being any crime punishable by death or imprisonment in the state penitentiary. However, there was no designation of the felony which the appellants may have intended to commit as a result of the breaking and entering nor were the elements of any such felony defined.

As the basis for their argument that reversible error was committed, the appellants rely upon Robles v. State, 188 So.2d 789, 793 (Fla.1966). In that case defendant had broken into an apartment of a women with whom he had been keeping company after she had sought to terminate the relationship. Upon gaining admission, a scuffle ensued and one of the women’s daughters was killed by a knife wielded by the defendant. On the appeal from a conviction of first degree murder the Supreme Court discussed the propriety of the felony-murder instruction which had been given by the court below. The court first held that there was sufficient evidence in the record from which it could be concluded that the defendant was guilty of burglary on the theory that he broke into the apartment with the intent to commit the felony of aggravated assault upon his estranged female companion. However, the court found it necessary to reverse because of the failure properly to instruct upon the elements of burglary. Thus, the court stated:

. . We are not prepared to say that the elements of the supporting felony under the felony-murder rule must be explained to the jury with the same particularity that would be required if burglary, were the primary crime charged. Nevertheless, we do hold that they must be defined sufficiently to assure the accused a fair trial of the commission of the secondary crime as well as the primary one.”

See also Wright v. State, 250 So.2d 333 (Fla. 2d DCA 1971), in which this court reversed a conviction on the same theory in spite of overwhelming evidence of premeditation. This decision was later quashed on other grounds by the Supreme Court in State v. Wright, 265 So.2d 361 (Fla.1972), but the principles set forth in our opinion were reaffirmed.

At the outset, we have considerable doubt whether the appellants could have been convicted of burglary since the only evidence on the subject indicates that the entry into the Haber home was with' the consent of Mrs. Haber. Though noncon-sent is not a separate element of the crime of breaking and entering with a felonious intent, it must be proven as part of the element of breaking. State v. Jackson, 281 So.2d 353 (Fla.1973).

In any event, even if we were to assume that one could commit burglary by entering the marital domicile with the permission of one spouse for the purpose of committing a felony against the other, there is a serious problem in this case involving the sufficiency of the instructions. While the court meticulously explained what constituted a breaking and gave a good definition of a dwelling house, the instructions contain no indication of the nature of the felony which the appellants may have intended to commit upon their entry into the house. Thus, how can it be said that the. jury was informed of all of the essential elements of burglary when one of those elements is the entry with intent to commit a felony and no felony has been specified or explained?

In Robles, the conviction was reversed for the improper instruction on felony-murder in spite of the failure of defense counsel to object to the charge. Therefore, the error in the form of the felony-murder instruction given in' this case cannot be said to have been waived because the appellants’ objection was simply directed to the giving of the instruction rather than to the form in which the instruction was given.

Ordinarily, where, as here, there is ample evidence of premeditation and also evidence of felony-murder, the giving of an erroneous felony-murder instruction requires reversal because it cannot reasonably be said upon which theory the jury returned its verdict. Cf. Wright v. State, supra. Even though there may be substantial evidence of premeditation, there is always the possibility that the jury’s verdict was premised upon the theory of felony-murder, about which the jury was misinstructed. In this ease, however, because of its peculiar posture we are able to say that the giving of the faulty felony-murder instruction constituted harmless error because it can be affirmatively demonstrated that the jury’s verdict must have been predicated upon premeditation — not upon felony-murder.

In Florida, there are three degrees of felony-murder. Third degree felony-murder is irrelevant to our discussion because it relates to a killing during the perpetration of a felony other than a burglary or other certain serious felonies not involved here. Both first and second degree felony-murder relate to an unlawful killing which occurs during the perpetration of specified serious crimes, which include burglary and robbery. Under the statutory language which was effective when this crime was committed, the only difference between the two was whether the person charged was “engaged in the perpetration” of the felony at the time the killing occurred. Thus, if the person was present during the commission of the underlying felony, he was guilty of first degree felony-murder; whereas an accessory before the fact who was not present during the commission of the felony was guilty only of second degree felony-murder. State v. Dixon, 283 So.2d 1 (Fla.1973).

In this case, there was no basis upon which Mrs. Haber could be convicted of first degree felony-murder because there is no evidence that she was present when the underlying felony was committed. To the contrary, it affirmatively appears that she was not. Since the jury was charged upon both first and second degree felony-murder and was instructed regarding the difference between the two, if the jury had intended to convict Mrs. Haber of felony-murder we must assume that it would have followed the court’s instructions and found her guilty of second degree felony-murder. But they found her guilty of first degree murder. Therefore, the jury could only have based its conviction of Mrs. Haber upon evidence of premeditation which, in turn, could only have been established if the jury believed that the conspiracy between her and Brandt and McEver was carried out, and there was more than enough evidence to support this conclusion. Mrs. Haber’s conviction must stand. It thus follows that McEver had to have been also found guilty by reason of premeditation — i. e., by the consummation of the conspiracy — else Mrs. Haber’s conviction would fall.

Stated otherwise, it would have been irrational for the jury to have concluded that McEver was guilty only of felony-murder (in which premeditation is irrelevant, the wilful perpetration of the specified felony being a substitute therefor) when the determination was made that Mrs. Haber was guilty of premeditated murder. We con-elude, therefore, that the erroneous or incomplete instruction on felony-murder was rendered harmless by the inescapable conclusion that the jury had to have convicted both appellants upon the theory of premeditation.

Accordingly, the judgments and sentences are hereby affirmed.

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

      . On the same theory, the court could have given an instruction on breaking and entering with intent to commit a misdemeanor, which was also a felony at that time, so at least to that extent the appellants were favored.

      . Since the appellants removed Mr. Haber’s wallet from his person through means of force and violence, perhaps robbery would have been a more appropriate crime upon which to predicate a felony-murder instruction.

      . The confusion is understandable since we are really talking about a felony twice removed from the murder. The felony-murder instruction was based upon the felony of breaking and entering with intent to commit a felony. This necessitated a further definition of the felony sought to be committed as a result of the breaking and entering.

      . We note in passing that very little mention of the felony-murder theory was made by either counsel during the course of their lengthy closing arguments.


author: SCHEB, Judge.

text:
    David J. CLOONEY, Appellant, v. Douglas Wayne GEETING, V. E. Anderson Mfg. Co., Liberty Mutual Insurance Co., Appellees. Amaro SAUMELL and Dianne Saumell, Appellants, v. Douglas Wayne GEETING, V. E. Anderson Mfg. Co., Liberty Mutual Insurance Co., Appellees.
    Nos. 76-1583 to 76-1585, 76-1596 to 76-1598.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.
    Rehearing Denied Jan. 6, 1978.

      J. B. Spence of Spence, Payne & Masing-ton, Miami, and Robert Orseck of Podhurst, Orseck & Parks, Miami, for appellant Cloo-ney.
    Charles H. McQuillan of McQuillan & Beltz, Bradenton, for appellants Amaro Saumell and Dianne Saumell.
    Daniel A. Carlton of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellees.
   SCHEB, Judge.

These consolidated appeals are from a final judgment adjudicating claims arising out of a motor vehicle accident. We hold the trial court erred in refusing to instruct the jury on concurrent causation. We order a new trial.

A recitation of the basic facts elicited at the trial is essential to the understanding of the issues before us. Thus, we go back to the morning of January 24, 1975, when Dianne Saumell was driving her car first in a line of vehicles heading west on State Road 64, a two-lane highway, about three miles east of Bradenton. Her brother, David Clooney, was riding with her.

Henry Bragg, another driver, was also heading west into Bradenton. Bragg came upon the line of cars and decided to pass. Approaching from the opposite direction was a truck driven by Douglas Geeting and owned by his employer, Anderson Manufacturing Co. Just as Bragg began to pass the westbound cars, an eastbound car started to pass the Anderson Mfg. truck. Realizing their peril, the drivers of the two passing cars completed their passing maneuvers, but quickly cut back into their own lanes narrowly avoiding a head-on collision. As the Bragg car re-entered the right lane, the Saumell car went off the pavement and proceeded down the shoulder of the road. Mrs. Saumell attempted to avoid a row of mailboxes, lost control, and swerved back onto the road. Her car then crossed the centerline and veered into the path of the oncoming Anderson Mfg. truck. The Sau-mell car was totally destroyed in the accident and Clooney sustained severe injuries to his spinal cord. As a result of his injuries Clooney was rendered a quadraplegic.

Clooney filed suit, naming as defendants: Anderson Manufacturing Co.; Anderson’s insurer, Liberty Mutual; Anderson’s employee/driver, Geeting; Bragg, the driver of the car that forced the Saumell car off the road; and, Bragg’s insurer, Hanover. The driver of the car that passed the Anderson Mfg. truck fled the scene without identifying himself and hence was not named a defendant. Anderson Mfg. filed a third-party complaint against the Saumells and their insurer, seeking to recover damages to its truck. The Saumells then counterclaimed against Anderson Mfg., Geeting, and Liberty Mutual, seeking damages for Mrs. Saumell’s personal injuries and for destruction of their car.

At the conclusion of the jury trial, counsel for appellants requested Standard Jury Instruction 5.1(b) on concurrent causation, which states:

In order to be regarded as a legal cause of injury or damage, negligence need not be the only cause. Negligence may be a legal cause of injury or damage even though it operates in combination with the act of another or some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such injury or damage.

The trial court refused to give the requested instruction, although Florida Standard Jury Instructions 5.1(a) on legal causation in general and 5.1(c) on intervening causation were given. The jury awarded Cloo-ney $500,000 against Bragg, but found Anderson Mfg. and Geeting not liable. The Saumells were found liable for the damages to the Anderson Mfg. truck, but the jury found Anderson Mfg. and Geeting not liable on the Saumells’ counterclaim.

Appellants’ first contention on appeal is that the court’s refusal to instruct the jury on concurrent causation prejudiced their action against Anderson Mfg. and Geeting. In Ruiz v. Cold Storage & Insulation Con tractors, 306 So.2d 153 (Fla.2d DCA 1975), we said that it is error for a trial judge, upon request, not to instruct the jury on concurrent causation when two criteria are met: first, the facts as viewed most favorably to the plaintiff support the need for such an instruction; and second, the failure to give the instruction may mislead the jury. See also Little v. Miller, 311 So.2d 116 (Fla. 4th DCA 1975).

As to the first criterion: Viewing the evidence most favorably to appellants, as we must on the posture of the case now before us, we find it sufficiently shows concurrent negligence of Mrs. Saumell, Geet-ing, and Bragg to warrant the requested instruction.

At the trial there was considerable evidence indicating that Mrs. Saumell and Bragg were negligent, and that the accident could have been avoided had they used better judgment. The jury could well have found that Mrs. Saumell had time to slow down or even gain control of her car, or that she was negligent in veering back onto the highway.

There was also evidence from which the jury could have concluded that Geeting was negligent in his operation of the Anderson Mfg. truck. When the unidentified vehicle passed the Anderson Mfg. truck, Geeting was proceeding at approximately 45 m. p. h. At the point of impact the truck was still going almost this speed, though Geeting had seen the near collision between the two passing cars and had seen the Saumell car leave the road and proceed toward 'him in an erratic manner. Clooney’s expert witness testified that Geeting had five seconds in which he could have slowed down or even stopped his truck before the accident. Nevertheless, Geeting apparently did not apply his brakes until immediately before impact with the Saumell car, in which Cloo-ney was riding.

As to the second criterion: The trial court’s failure to give the concurrent causation instruction may very well have misled the jury. At trial a vast amount of testimony and documentary evidence was presented. From the evidence and the instructions the jury could well have concluded that Mrs. Saumell’s negligence . and Bragg’s negligence outweighed the negligence of Geeting and thereby relieved Anderson Mfg. and Geeting of liability. This, of course, is not a proper conception of the law, as would have been demonstrated to the jury had the requested instruction on concurrent causation been given. We therefore conclude it is incumbent upon us to award a new trial on all issues between the appellants and appellees.

Appellant Clooney also argues the trial court erred in striking Counts II through V and his claim for punitive damages from his complaint. Since it is necessary to remand for a new trial, we address this issue also. Counts II and III of the complaint alleged that Anderson Mfg. was negligent in hiring and continuing to employ Geeting in light of his incompetence and past driving record. Count IV charged that Anderson was negligent in entrusting its truck to Geeting. Finally, Count V alleged that Anderson’s behavior showed a wilful and wanton disregard for the rights of Clooney.

We do not think the trial court erred in striking Clooney’s claim for punitive damages. Clooney alleged that Anderson Mfg. knew that Geeting was neither physically nor mentally able to properly drive the truck, and that its safety manager had pointed this out prior to the accident. We find these allegations insufficient to show the necessary malice or the wanton, wilful, or outrageous conduct required to support a claim for punitive damages. As we said in Carter v. Lake Wales Hospital Assoc., 213 So.2d 898 (Fla.2d DCA 1968), and repeated recently in Florida Power Corp. v. Scudder, 350 So.2d 106 (Fla.2d DCA 1977), gross negligence is not enough to give rise to punitive damages — there must be a wilful and wanton disregard for the rights of others. We do not think Clooney’s allegations allege ultimate facts which rise to this level.

There being an insufficient pleading as a predicate for punitive damages, it follows that the trial court did not err in striking Clooney’s Count II through V alleging negligent hiring, employment, and entrustment by Anderson Mfg.

Negligent hiring and employment have been found to be legitimate bases of recovery in this state. See, e. g., Mallory v. O’Neil, 69 So.2d 313 (Fla.1954); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970).

While no cases in this state have explicitly held the theory of negligent entrustment can be utilized in an automobile situation, we find cases where it was apparently relied upon as the basis of recovery. See, e. g., Bould v. Touchette, 349 So.2d 1181 (Fla. 1977); Wright Fruit Co. v. Morrison, 309 So.2d 54 (Fla.2d DCA 1975). Courts of other jurisdictions have addressed this problem and found the theory of negligent entrustment to be a viable one in automobile accident cases. See, e. g., Armenia v. Churchill, 42 Cal.2d 448, 267 P.2d 303 (1954). We see no reason why this theory is not available to claimants injured in automobile accidents in this state.

Justice requires, however, that a caveat be imposed on the use of any of the theories we have mentioned. Where these theories impose no additional liability in a motor vehicle accident case, a trial court should not allow them to be presented to the jury. The reason for this is a very practical one: Under these theories the past driving record of the driver will of necessity be before the jury, so the culpability of the entrusting party can be determined. As was said in Dade County v. Carucci, 349 So.2d 734, 735 (Fla.3d DCA 1977), “Ordinarily, the evidence of a defendant’s past driving record should not be made a part of the jury’s considerations.”

Here Counts II through V impose no additional liability on Anderson Mfg. Anderson has not denied ownership or permitted use of the truck driven by Geeting; therefore, it is liable for Geeting’s negligence under the vicarious liability doctrine. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Since the stricken counts impose no additional liability but merely allege a concurrent theory of recovery, the desirability of allowing these theories is outweighed by the prejudice to the defendants. See Armenia v. Churchill, supra.

We recognize that factual situations could arise where one of the referred-to theories would impose additional liability. If the allegations in this case had been sufficient to allow the claim for punitive damages to go before the jury, this would be such a case. Another example might be where an owner or authorized custodian of a motor vehicle who knows that the vehicle has defective brakes allows one who is not aware of this dangerous condition to use it, and because of the bad brakes an accident occurs. If the driver were found not to be negligent, the owner could not be held vicariously liable. So the means of imposing liability on the owner would be through his own negligence of lending the car with bad brakes, i. e., negligent entrustment. See generally Wright Fruit Co. v. Morrison, supra.

Upon remand of this case for a new trial we realize that Clooney may be able to amend his complaint to allege sufficient ultimate facts to form the basis of a claim for punitive damages. If this occurs, additional theories of recovery may be pleaded; however, we repeat our cautionary note. No theory which permits the past driving record of Geeting should be presented to the jury unless there is a proper claim for punitive damages.

Our disposition of this case makes it unnecessary to discuss any of the other points urged by appellants.

Reversed and remanded for a new trial.

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

      . The following instruction modeled after Fla. Stand. Jury Inst. 5.1(a) was given:
      Negligence is the legal cause of injury if it directly and in natural and continuous sequence contributes substantially to the producing of such injuries so that it can reasonably be said that but for the negligence, the injury would not have occurred.
      The following instruction modeled on Fla. Stand. Jury Inst. 5.1(c) was also given:
      Negligence may also be a legal cause of injury or damage even though it operates in combination with the act of another or some other cause occurring after the negligence occurred. If such other cause was itself reasonably foreseeable and the negligence contributed substantially to producing such injury or damage or the resulting injury or damage was reasonably foreseeable consequences of the negligence and the negligence contributes substantially to producing it.

      . Bragg and his insurer Hanover will not be involved in the new trial as they have been dismissed as parties to these appeals by order of this court.

      . We recognize the practical problem faced by a defendant against whom punitive damages are properly alleged but who feels he will be unfairly prejudiced by evidence of a prior driving record of someone involved in the case. In cases of this type summary judgment practice, or motions in limine could be utilized. See 23 Fla.L.Rev. 531 (1975) for a recent exposition of the role of motions in limine.