author: SCHEB, Judge.

text:
    Noel HOROWITZ and Sadie Horowitz, husband and wife, Appellants, v. AMERICAN MOTORIST INSURANCE COMPANY et al., a corporation, Appellees.
    No. 76-1041.
    District Court of Appeal of Florida, Second District.
    March 23, 1977.
    Rehearing Denied April 21, 1977.
    John B. Cechman of Goldberg, Rubinstein & Buckley, Fort Myers, for appellants.
    David W. Miner, of Mann, Fay and Price, Bradenton, for appellees.
   SCHEB, Judge.

Is a chiropractor competent to give expert testimony under the no-fault insurance law on the question of whether a claimant suffered a permanent injury?

The trial court held a chiropractor is not competent to testify within reasonable medical probability whether a person has sustained permanent injuries within the purview of the Florida Automobile Reparations Reform Act. Thereupon, the trial judge dismissed this suit by appellant/plaintiff for plaintiff’s failure to meet the threshold requirements of permanent injuries under the Act. Plaintiff appeals. We reverse.

This suit arose out of an automobile accident on December 17, 1974, which resulted in injuries to the plaintiff, Horowitz. In an action by Horowitz and his wife, the plaintiffs presented Anthony J. Dorto, a chiropractor for the purpose of establishing that he had suffered a “permanent injury within reasonable medical probability” to qualify him to maintain his tort action against the defendants under Section 627.737, Florida Statutes (1976).

Dr. Dorto presented impressive credentials in the chiropractic field. The court recognized him as a qualified expert in that field. However, the trial judge ruled that “. . .a chiropractor may not testify as to medical probability as the term is used in Florida Automobile Reparations Act . . ” Since the plaintiff failed to establish the threshold requirement of $1,000 medical expenses and offered no other competent medical testimony to establish a permanent injury, the court dismissed the plaintiffs suit.

Dr. Dorto is licensed to practice chiropractic medicine in the State of Florida. His credentials included a baccalaureate degree in science, and professional degrees in radiology and chiropractic medicine. He defined his profession as “. . . the study in science and art of detecting nerve interference and/or pressure from the spinal nerves and other joints in the body.”

Plaintiff Horowitz was first seen by Dr. Dorto three days after the accident occurred. He complained of injuries in his neck and lower back. After examining him and taking x-rays, Dr. Dorto concluded that Horowitz’ problem was between the two disc spaces causing pressure on two nerves. Between that first visit and July 24, 1975, Dr. Dorto saw Horowitz on twenty-six separate office visits. Dr. Dorto testified that he checked Horowitz’ posture, range of motion, and his spine and nerve system. He also took his blood pressure and pulse, checked his heart and lungs, checked the nerve sensation in his legs and arms, the reflexes in his upper and lower extremities and checked out his muscle strength and the diameter of muscles in the upper and lower extremity.

Dr. Dorto testified that the tests he conducted indicated injury to muscle and nerve with the limitation in the range of motion in the lumbosacral spine. He found a lack of sensation in the left lower leg and tenderness at the base of the plaintiff’s spine. Also, he noted muscle spasms of the left trapezius muscle next to the neck and shoulder, as well as under the skull. He treated his patient with physical therapy, traction, diathermy, ultra-sound to massage the nerves and reduce swelling, internal management by vitamins and minerals and adjustments to the spine.

Dr. Dorto opined that because of the restricted range of motion in his lumbosacral spine and the lack of nerve feeling in the outside of his right leg, Horowitz would not have a complete recovery. He attributed this to Horowitz’ automobile accident on December 17, 1974. He was not permitted to state an opinion on whether there was a permanent injury within either a reasonable medical or chiropractic probability.

In Mills v. Redwing Carriers, Inc., 127 So.2d 453 (Fla. 2d DCA 1961), this court stated that to warrant use of testimony from a qualified expert, two elements were required. First, the subject of the inference must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman; and second, the witness must have such skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier of facts in its search for truth.

The definition and scope of permitted practice of a chiropractor is set out in Section 460.11, Florida Statutes (1975), which provides, in relevant part:

“(1) For all purposes ‘chiropractic’ is defined to be a noncombative principle and practice consisting of the science of the adjustment, manipulation, and treatment of the human body in which vertebral subluxations and other malpositioned articulations and structures that are interfering with the normal generation, transmission, and expression of nerve impulse between the brain, organs, and tissue cells of the body, thereby causing disease, are adjusted, manipulated or treated thus restoring the normal flow of nerve impulse which produce normal function and consequent health.
“(2) Any chiropractic physician who has complied with the provisions of this chapter may:
(a) Examine, analyze, and diagnose the human living body and its diseases by the use of any physical, chemical, electrical, or thermal method, and use the x-ray for diagnosing, and may use any other general method of examination for diagnosis and analysis taught in any school of chiropractic recognized and approved by the Florida State Board of Chiropractic Examiners.
(b) Chiropractic physicians may adjust, manipulate, or treat the human body by manual, mechanical, electrical, or natural methods, or by the use of physical means, physiotherapy, including light, heat, water, or exercise, or by the oral administration of foods, food concentrates, and food extracts, and may apply first aid and hygiene, but chiropractic physicians are expressly prohibited from prescribing or administering to any person any medicine or drug or from performing any surgery except as hereinabove stated or from practicing obstetrics.”

We have been unable to locate any Florida decision directly on point. However, in Watson v. Ward, 423 S.W.2d 457 (Tex.Civ.App.1967), damages were awarded to one injured in a collision between two pickup trucks. The only médical evidence offered at the trial was that of a chiropractor who diagnosed the plaintiff’s injury as that commonly known as a whiplash, involving only the muscles, blood vessels, nerves and vertebrae in and around the neck. The chiropractic physician was not qualified to operate on the human body nor was he permitted to write prescriptions for medication. The only treatment given the plaintiff was manipulation of his vertebrae and affected parts and application of heat treatments. Citing Maryland Casualty Company v. Hill, 91 S.W.2d 391 (Tex.Civ.App.1936), the court held the doctor’s testimony that the plaintiff was permanently injured to be admissible.

For other cases holding a chiropractor qualified to testify as to the nature and extent of injuries related to those portions of the body with which a chiropractor deals, see Oklahoma Natural Gas Corp. v. Schwartz, 146 Okl. 250, 293 P. 1087 (1930); Yelloway, Inc. v. Hawkins, 38 F.2d 731 (8th Cir. 1930); Johnston v. Peairs, 117 Cal.App. 208, 3 P.2d 617 (1931); O’Dell v. Barrett, 163 Md. 342, 163 A. 191 (1932). The Annotation in 52 A.L.R.2d 1384 (1957), states:

“It is a general rule that a chiropractor is competent to testify in personal injury action as an expert or medical witness, concerning matters within the scope of the profession and practice of chiropractic.”

A trial court initially exercises discretion in determining whether one tendered as an expert witness has the education and experience required to establish him as an expert. Seminole Shell Co. v. Clearwater Flying Co., 156 So.2d 543 (Fla. 2d DCA 1963). Here, the court accepted Dr. Dorto as an expert in the field of chiropractic medicine. Having accepted him as an expert in his field, and we think correctly so, the trial judge then should have proceeded to determine whether the plaintiff’s injuries were within the scope of professional practice of a chiropractor. On the record before us, we conclude that the plaintiff’s injuries come within the scope of treatment which by law a chiropractor is permitted to render to a patient.

We believe that a chiropractor, licensed by the State of Florida, who presents necessary credentials as to education and experience is qualified to testify as an expert in relation to injuries that are within the ambit of chiropractic discipline.

But do the requirements of the Florida Automobile Reparations Reform Act, Chapter 627, Florida Statutes, dictate a contrary ruling? To maintain a tort action for injuries received from an automobile accident, it is incumbent upon the plaintiff to establish a permanent injury within “reasonable medical probability” under Section 627.737, or to establish medical expense in excess of $1,000. But the Act does not restrict injured persons from receiving treatment by chiropractors. Nor does it limit payment of “medical” expenses to medical doctors. Rather, Section 627.736, Florida Statutes, provides for payment to “any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for bodily injury .” “Medical” relates to the science of medicine and the practice of chiropractic is the practice of medicine, although in a restricted form. See Lowman v. Kuecker, 246 Iowa 1227, 71 N.W.2d 586 (1955). Nothing in the Florida No-fault Law expressly precludes a qualified chiropractor from testifying as to a reasonable medical probability as to the permanency of such injuries, and we find no reason to imply any. We hold a chiropractor who qualifies as an expert witness may give opinion evidence as to permanency of injuries where such injuries are to areas of the body within his permitted practice and his education, training and expertise. For example, the First District Court of Appeal held that a chiropractor was not competent to testify in respect to an eye injury. Aiken v. Miller, 298 So.2d 477 (Fla. 1st DCA 1974). We agree. Moreover, we must also recognize that the weight and credibility to be given the chiropractic testimony, as with any expert testimony, is a matter for the finder of fact.

As a caveat here we point out that in the past the educational and training requirements for chiropractors may have been less uniform than those in the traditional medical fields. Trial judges must therefore look carefully into the backgrounds, education and experience of the witness before determining that a chiropractor is qualified to testify as to matters within the ambit of his permitted practice and his professional expertise.

Accordingly, the judgment of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.

BOARDMAN, C. J., and OTT, J., concur.

      . Section 627.737, concerning limitation on bringing tort actions, was amended by Ch. 76-266, effective October 1, 1976, repealing the $1,000 threshold. As amended, Section 627.-737(2) now provides:
      (2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730 —627.741, or against any person or organization legally responsible for his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:
      (a) Loss of a body member.
      (b) Permanent loss of a bodily function.
      (c) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
      (d) Significant permanent scarring or disfigurement.
      (e) A serious, nonpermanent injury which has a material degree of bearing on the injured person’s ability to resume his normal activity and lifestyle during all or substantially all of the 90-day period after the occurrence of the injury, and the effects of which are medically or scientifically demonstrable at the end of such period.
      (f) Death.


source: Caselaw Access Project

author: McCORD, Judge. SMITH, Judge,

license: Public Domain

text:
    Robert Edward ARNOW, Appellant, v. James H. WILLIAMS, Secretary of the Department of Administration of the State of Florida, Appellee.
    No. BB-347.
    District Court of Appeal of Florida, First District.
    March 24, 1977.
    Bryan W. Henry and James R. English, of Henry & Buchanan, Tallahassee, for appellant.
    Stephen S. Mathues, Asst. Division Atty.; David V. Kerns, General Counsel, Tallahassee, for appellee.
   McCORD, Judge.

Appellant Robert' Edward Arnow is a retired state employee and a member of the state and county officers and employees retirement system. This is an appeal from a final declaratory judgment which determined that the spouse (Nell Margaret Ar-now) of appellant at the time of his retirement will not be entitled to retirement benefits if she survives him.

During his employment with the State, appellant contributed portions of his salary to the retirement system and upon retiring, he elected the option provided in § 122.-08(4), Fla.Stat., 1969, which states in pertinent part as follows:

“Any state or county .officer or employee shall have the right at any time prior to receipt of his or her first monthly installment of retirement compensation to elect to receive a reduced retirement compensation with the provision that the surviving spouse shall continue to draw such reduced retirement compensation, or one-half thereof if so designated, so long as such spouse shall live. The amount of such reduced retirement compensation shall be the actuarial equivalent of the amount of such retirement compensation otherwise payable to such officer or employee . . . Any officer or employee shall have the right at the time of retirement to change the option so provided; and, should the option be changed or not at the time of retirement, such option shall be effective immediately upon retirement and thereafter may not be revoked.”

Appellant retired on April 14, 1971, and selected one of the options available to him at the time under the above statute. Under such option, he gave up the retirement benefits which he would normally be entitled to receive and elected to receive the actuarial equivalent thereof in a reduced amount to him for the balance of his life with one-half of such amount to go to his spouse, Nell, for the balance of her life if she survived him. Sometime subsequent thereto, the marriage between appellant and Nell was dissolved, and appellant married Myrtle Collins Ar-now. He then requested a certification from the administrators of the retirement system to the effect that in the event of his prior death, Nell, if she survived him, would be paid the monthly benefits under the foregoing option which he had selected when he retired. Appellee, the Department of Administration, ruled, however, that no monthly benefits would be paid to Nell because she would not be his surviving spouse. On previous such occasions, the Department has also ruled that the retirement benefits would not be paid to the spouse to whom a retiree was married at the time of his death if such spouse was not his spouse at the time of his retirement and election of the option.

The Department contends, and we agree, that the retirement benefits vest at the time of retirement and at the time the retiree receives his first retirement check. City of Jacksonville Beach v. State, 151 So.2d 430 (Fla.1963). As to a retiree’s spouse at the time of his death who was not his spouse at the time of his retirement, the Department’s position is that such spouse would not be entitled to receive benefits because the retirement rights vested at the time of retirement. The reduced benefit became fixed at that time and the actuarial equivalent of what the retiree would otherwise have received during his life was determined and fixed from a combination of his life expectancy at his then age and his then spouse’s life expectancy at her then age. Thus, if his spouse at the time of his death was not the spouse upon whose age the actuarial equivalent had been determined, that spouse would not be entitled to the benefits. With this we also agree.

The Department also takes the position that the retiree’s benefit may not be recalculated after he retires and receives his first retirement check to give him what he would otherwise have received had he not elected the option. With this we also agree. § 122.08(4) above quoted provides:

“Such option shall be effective immediately upon retirement and thereafter may not be revoked.” (Emphasis supplied.)

As to the question presented in this case, however, we cannot agree with the Department’s contention. Such contention is inconsistent with the other positions it has taken and is inconsistent with a logical and just construction of the above statute. It looks only to the words “surviving spouse” in the foregoing statute and reasons that since Nell is now a divorced wife and will therefore not be appellant’s surviving spouse at the time of his death, she will not be entitled to the benefits appellant elected. Under this reasoning, any benefits which she otherwise would have received (or which would have gone to the retiree had the election not been made) will remain in the retirement fund. If the Department looks only to the words “surviving spouse” the benefits should be paid to Myrtle if she is his spouse at the time of his death, but this it cannot do for the reasons aforesaid. Appellant is thus caught in a Catch-22 situation in which his spouse at the time of his death is not entitled to the benefits because she was not his wife at the time the retirement rights vested. The spouse at the time the rights vested will not be entitled to the benefits because she will not be his wife at the time of his death. He is not entitled to a reassessment of his benefits so that he can draw the increased amount which he otherwise would be entitled to receive had he not elected the option because the option cannot be revoked after retirement.

The only logical interpretation of this statute is that all rights vest at the time of retirement. At that time if the retiree elects an option under which his spouse will benefit if he predeceases her, that person who is his spouse at the time of the election and upon whose age the actuarial equivalent is determined acquires vested rights in the option which the retiree elected. Nowhere in the retirement law is there any indication that dissolution of marriage will terminate a spouse’s retirement benefits unless it is inferred in the phrase “the surviving spouse shall continue to draw such reduced retirement compensation, or one-half thereof if so designated, so long as such spouse shall live.” We cannot read such an unjust interpretation into the phrase. If the Legislature had intended for dissolution of a marriage to cut off benefits to such a spouse, we believe it would have said so in explicit terms. Such spouse is the surviving spouse for retirement benefit purposes, since such spouse was the retiree’s spouse at the time the retirement benefits vested. In our view, the reference to the surviving spouse in the context in which the statute is written, means the retiree’s spouse at the time he retires and designates such spouse to receive the reduced benefits for the balance of her life if such spouse survives him.

We have considered appellant’s claim for attorney’s fee but find such is not authorized.

We do hereby determine that the foregoing decision is one which passes upon a question of great public interest as contemplated by Section 3 of Article V of the Constitution of Florida.

Reversed.

RAWLS, Acting C. J., concurs.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

I would affirm the trial court’s judgment. The spouse of a retiring state employee has no vested interest in prospective retirement benefits, even though the employee selects the statutory settlement option which would pay benefits to his surviving spouse. The spouse’s interest at the time of the employee’s retirement is but an expectancy, and she must survive him as his spouse to receive the benefits. Similarly, the employee’s vested right is only that benefits will be paid for his life and for his then spouse’s life, if she survives him as his spouse.

I share the majority’s concern with the inequity of requiring an employee to elect a settlement option irrevocably at the time of retirement and then, when a marriage dissolution and his death follow, declaring a lapse of benefits which otherwise would be payable to the surviving former spouse. There is inequity in a retirement system which recognizes neither the former spouse nor, if the retiree remarries before his death, the recent and surviving spouse for whom the system made no actuarial provision.

It might be possible for the legislature to permit a retiree in Mr. Arnow’s position to appoint the present Mrs. Arnow to receive at his death the benefits which at retirement his former spouse was actuarially predicted to receive as survivor. That would in many circumstances serve the retiree's wishes better than the remedy the majority have devised. No policy of law is served by the majority’s decision to prefer the former spouse to the later one. But the present retirement statute permits neither alternative. I do not conceive we are justified in rewriting the statute, as in my opinion the majority have done, to make it comport better with justice as we see it.


author: RAWLS, Acting Chief Judge.

text:
    J. O. TOWNLEY and Helen Townley, Appellants, v. MARION COUNTY, a political subdivision of the State of Florida, Appellee.
    No. CC-21.
    District Court of Appeal of Florida, First District.
    March 24, 1977.
    Rehearing Denied April 21, 1977.
    Kenneth E. Brooten, Jr., of Carter & Brooten, Gainesville, for appellants.
    Robert S. Ryder, John P. McKeever, of Pattillo, MacKay & McKeever, Ocala, and Gordon G. Oldham, Jr., Leesburg, for appel-lee.
   RAWLS, Acting Chief Judge.

By their amended complaint, plaintiffs (appellants) challenged the validity of Marion County Ordinance 73-5, whereby zoning regulations promulgated by the board of county commissioners were made applicable to all the area of Marion County outside incorporated municipalities. Upon consideration of the county’s motion for judgment on the pleadings, the trial court entered its final judgment finding Marion County Ordinance 73-5 to be a valid exercise of the powers of self-government granted the Board of County Commissioners of Marion County by Article VIII, Sections 1(g) and 6(d), Florida Constitution (1968), and Section 125.01, Florida Statutes.

Prior to 1973, the Marion County Board of County Commissioners (Board) enforced zoning regulations pursuant to certain special acts of the Florida legislature which restricted its authority to specific limited geographical areas in the unincorporated area of the county. However, neither these special acts nor the areas defined therein are involved in this controversy.

In 1973, the Board, by enactment of the subject ordinance, declared its zoning regulations effective “within the entire territorial limits of Marion County, Florida, lying outside of the incorporated areas of municipalities”.

The primary issue posed is whether the trial court erred in holding that a county, not operating under a county charter, could enact zoning regulations inconsistent with Part II, Chapter 163, Florida Statutes. We hold that it cannot.

It is elementary that counties are political subdivisions of the state and thus derive their powers from the constitution and laws of the State of Florida. Article VIII, Section 1(a), Florida Constitution. Counties not operating under county charters shall have only such power of self-government as provided by general or special law. The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law. Article VIII, Section 1(f), Florida Constitution.

An abstract of the Board’s authority to enact the subject ordinance is necessary then for our determination. It is conceded by the Board that such authority is not derived from a special act. So, the constitutional grant of self-government as is provided by general law must be scrutinized. Section 125.01(1), Florida Statutes, reiterates the constitutional grant of authority, viz:

“(1) The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power shall include, but shall not be restricted to, the power to:
“(h) Establish, coordinate, and enforce zoning and such business regulations as are necessary for the protection of the public”, (emphasis supplied)

Clearly, the legislature has by general law granted to the Board the power of zoning the property here involved.

Having already observed that we are not concerned here with any special law, our inquiry is thus restricted to the question of whether the subject ordinance conflicts with any general law.

Part II, Chapter 163, Florida Statutes, entitled County and Municipal Planning for Future Development, is a general law that provides a mechanism for the adoption and enforcement of zoning regulations. It specifically exempts special acts relating to zoning or planning. Section 163.165, Florida Statutes, expresses the legislative intent as:

“(2) The provisions of this Act in its interpretation and application are declared to be the minimum requirements necessary to promote the public health, safety

The broad powers of zoning granted by the provisions of Section 125.01(l)(h) do not establish any objective guidelines and standards under which such authority may be exercised. However, when read in pari materia with the provisions of Part II, Chapter 163, Florida Statutes, we perceive a clear legislative scheme for implementation of the broad zoning authority granted to non-charter counties by the provisions of Chapter 125, Florida Statutes.

The trial court, citing an Attorney General’s Opinion (075-63), was of the view that the language of Sections 163.160 and 163.-315, Florida Statutes, are “to be effective only when the governing body of the county takes formal action declaring an election to proceed under Part II and that the powers granted are supplemental and in addition to such other authority as might exist in county government in the area of zoning, planning and plan implementation.”

It is our view that the “supplemental and in addition to such other authority” relates to specific zoning powers granted by special acts or to charter counties. The clear language of legislative intent expressed in Section 163.165(2), that the provisions of the Act are declared to be minimum requirements for the protection of the “public health, safety, comfort, good order, appearance, convenience, morals and general welfare; to conserve the value of land, buildings and resources”, supplements the broad powers granted in Chapter 125, Florida Statutes. These minimum detailed objectives, coupled with the other extensive due process requisites of Chapter 168, provide a palatable juridical definition of “protection of the public” as found in Section 125.-01(l)(h), Florida Statutes.

The Board having conceded by its brief:

“For purposes of disposition of the Motion for Judgment on the Pleadings, the COUNTY conceded that in enacting Ordinance 73-5 it had not adopted a formal resolution electing to proceed under Chapter 163, Part II, Florida Statutes, nor adopted a comprehensive general plan and provided for annual review thereof in the manner prescribed by Chapter 163, Part II, Florida Statutes.”

the judgment of the trial court is REVERSED.

SMITH and ERVIN, JJ., concur.

      . Appellants’ view that Part II, Chapter 163, Fla.Stat., is a limitation on the scope of Section 125.01, Fla.Stat.: “. . . the power to carry on county government. To the extent not inconsistent with general or special law . .” is reinforced by an awareness that Section 125.01(l)(h), Fla.Stat., was not adopted as the law of this state until May of 1971, while Part II, Chapter 163, Fla.Stat., became effective in 1969.


author: PER CURIAM.

text:
    William C. EVANS, Jr., Appellant, v. Ann Shoemaker CORBIN, Appellee.
    No. EE-23.
    District Court of Appeal of Florida, First District.
    March 25, 1977.
    Rehearing Denied April 21, 1977.
    L. William Graham of Dell, Graham, Willcox, Barber, Ryals & Henderson, Gainesville, for appellant.
    Anderson E. Hatfield, III, Gainesville, for appellee.
   PER CURIAM.

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

Accordingly, the orders appealed are affirmed.

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


text:
    Ann Shoemaker CORBIN, Appellant, v. William C. EVANS, Jr., Appellee.
    No. EE-120.
    District Court of Appeal of Florida, First District.
    March 25, 1977.
    Rehearing Denied April 21, 1977.
    Anderson E. Hatfield, III, Gainesville, for appellant.
    L. William Graham of Dell, Graham, Willcox, Barber, Rappenecker, Ryals & Henderson, Gainesville, for appellee.
   PER CURIAM.

Reversed and remanded with instructions to reinstate the complaint and to proceed thereafter in accordance with law. See Evans v. Corbin, Fla.App., 343 So.2d 1314, opinion issued March 25, 1976.

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


author: PER CURIAM. MILLS, Judge,

text:
    Sidney MARTIN and Elizabeth Martin, husband and wife, Appellants, v. Hugh ADKISSON and Frances M. Adkisson, husband and wife, Appellees.
    No. CC-339.
    District Court of Appeal of Florida, First District.
    March 29, 1977.
    William C. Andrews, of Andrews & DeL aney, Gainesville, for appellants.

      Tito S. Smith and Edward E. Hedstrom, of Dowda, Hedstrom & Fields, Palatka, for appellees.
   PER CURIAM.

Appellants, who were defendants in the trial court, here appeal a Final Judgment in favor of appellees, plaintiffs in the trial court.

The parties are adjoining landowners in Alachua County. Appellants’ property is located on the northerly boundary of appel-lees’ tract. The natural flow of surface water in the area is in a northerly direction. A drainage ditch crossing both properties has been in existence in excess of 40 years. Prior to initiation of the action giving rise to this appeal, appellants, while having some bulldozer work done on their land, created a blockage of the drainage ditch resulting in flooding of appellees’ property. Following a trial, during which the trial judge as finder of fact viewed the subject properties and ditch, a final judgment was entered in favor of appellees. This appeal followed.

Appellants urge four points. First they question the sufficiency of the evidence to support the findings of the trial judge. The evidence was conflicting and the trial judge viewed the premises. The facts of this case are remarkably similar to those recited in Manning v. Hall, 110 So.2d 424 (Fla.2d DCA 1959). As did the court in Manning, we are of the view that the evidence was sufficient to support the final judgment and therefore affirm as to that point.

Appellants second and third points relate to specific provisions in the final judgment. Appellants argue that by use of the language in the final judgment “that said ditch lies within 20 feet left and 30 feet right of the following described ditch survey line” followed by the description of a survey line, the trial court improperly imposed an easement across 50 feet of appellants’ property. We do not so construe the final judgment. It is established law that on appeal an order or judgment being reviewed should, if susceptible of more than one construction, be construed in such a manner as to render it valid. Actions of a trial court are presumed correct. The language complained of does nothing more than describe an area in which the ditch is located. There is nothing in the final judgment to indicate that the trial judge intended to afford either an easement or access over any property other than the ditch itself and such adjacent property as is necessary for compliance with the final judgment.

Although paragraph four of the adjudicatory portion of the final judgment provides “The Defendants are further ordered to use reasonable care in seeing that the drainage ditch remains open and unobstructed and should Defendants fail to use reasonable care, the Plaintiffs, their agents and/or employees shall have the right to enter upon Defendants’ property described above for the purpose of opening or removing obstructions from the ditch” we do not construe such provision, when read in pari-materia with the other provisions of the final judgment, as requiring the defendants, appellants here, to keep the ditch open and unobstructed. It is clear that the intent of the language, when read in conjunction with paragraph two which requires removal of the obstructions which resulted from the bulldozing on defendants’ land, is to afford appellants an alternative, viz: Either keep the ditch open themselves or permit appellees to enter upon the property for the purpose of opening or removing obstructions therefrom.

Finally, appellants urge that the trial court erred in awarding damages to the appellees in the sum of $448.75. Our review of the record refutes appellants’ position and sustains such an award.

AFFIRMED.

BOYER, C. J., and DURDEN, J. ROBERT, Associate Judge, concur.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent.

I would reverse the final judgment because (1) the trial court’s finding that the drainage ditch is a mutual drain is not supported by competent substantial evidence [Manning v. Hall, 110 So.2d 424 (Fla. 2nd DCA 1959)]; (2) the trial court’s requirement that Martin clear the ditch of all obstructions and that Martin see that the ditch remains open and unobstructed is contrary to the law [11 Fla.Jur. 259, par. 35]; (3) the trial court’s granting to Adkisson of the right to enter Martin’s property and to maintain the ditch within 20 feet left and 30 feet right of a ditch survey line described in the judgment is too broad and unnecessary; and (4) the trial court’s award of damages to Adkisson is error in view of (1) above.


text:
    NBS DEVELOPMENT, INC., and Ricardo Nunez, Appellants, v. Roberto SUERO et al., Appellees.
    Nos. 76-346, 76-349.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Heller & Kaplan and Robert Golden, Miami, for appellants.
    Lapidus & Hollander, Miami, for appel-lees.
    Before HENDRY, C. J., and BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

In 1972 the individual appellees, referred to as the Suero group, and the appellant Ricardo Nunez and certain other persons, referred to as the Nunez group, entered into a partnership agreement for the construction and consequent sale of a condominium. In this subsequent litigation involving the two groups, a partial summary judgment was entered in favor of the plaintiffs (Suero group) from which two of the defendants appealed.

By the pleadings and exhibits, and the evidence on motion for summary judgment, it was disclosed that initially the contribution of the Suero group was the land involved, which they purchased from a member of the Nunez group for the purpose, at a price of $92,500, and transferred to the partnership, designated at the L.E.S.N. Apartments, Ltd.; and that the contribution of the Nunez group was their undertaking to arrange for the financing of the construction, pay for the architectural services, obtain the building permits and handle the construction. It was provided in the contract that in event the Nunez group should fail to perform as agreed the property supplied to the partnership by the Suero group would be reconveyed to that group.

The Nunez group formed a corporation, NBS Development, Inc., which became the general contractor, and which corporation was designated and stated in the documents to be the owner of fifty percent interest in the project. The Suero group was so designated to own the other fifty percent thereof, in varying amounts among the members of the Suero group. It was provided that after completion and sale the proceeds were to be applied first to pay the construction loan, next to reimburse the Suero group for the cost of the land which they had supplied, and then to be ■ shared according to such designated ownership interests.

The institutional lender to which an application was made for a construction loan to be made to L.E.S.N. Apartments, Ltd. insisted that the individual members of the said partnership also sign as makers. When that circumstance arose, a further written agreement was made by the parties, modifying the prior agreements, by which the parties assented to that requirement of the lender. Also that modification agreement in some respects changed the order for payment of profits to the members, after payment of the loan and reimbursement of the Suero group for the land.

Accordingly, in October of 1972, a loan in the face amount of $420,000.00 was made to The L.E.S.N. Apartments, Ltd. by Washington Federal Savings and Loan Association, evidenced by a promissory note which the said partnership entity and individuals of the two groups signed as co-makers, and which was secured by a mortgage on the property. In the separate Construction Loan Agreement executed in connection therewith, it was stated that the net proceeds of the loan passing to the borrower were $409,861.00 and that “The total cost of construction of the afore-described improvements shall be in the amount of $445,-131.00”.

Construction was undertaken, and when it was nearing completion (90% completed according to Nunez) the construction loan money was exhausted. Completion of the project would have required an additional expenditure, the amount of which was in dispute but which the Nunez group responsible for the construction estimated to be approximately $30,000.00. For reasons which are in dispute, the parties did not obtain that additional financing, as a result of which construction was not completed, and the investment was lost when the lender acquired the property by foreclosure of the mortgage.

The Suero group filed this action against the Nunez group and against The L.E.S.N. Apartments, Ltd. and NBS Development, Inc. The complaint as amended was in four counts. Two counts were grounded on a contention by plaintiffs that the loss was occasioned by failure of the Nunez group to properly perform its obligation with reference to construction of the improvement. The first count alleged such improper performance and sought damages on the ground of breach of contract, and the fourth count alleged the loss resulted from negligence of the Nunez group in the performance of construction. The second count charged the Nunez group with fraud in the transaction. The third count alleged the defendants had accepted payment for one of the apartments in advance, and had not returned the same until such purchaser had threatened to file suit for recovery thereof.

The defendants answered, denying the allegations of improper performance. Appended to the answer was a counterclaim, and the answer incorporated the allegations of the counterclaim as affirmative defenses. The latter included an averment that the loss was brought about by failure and refusal of the plaintiff group to cooperate with defendants to secure the additional financing necessary for completion of the improvement, without which such added funds were not obtainable. Motion of plaintiffs to strike the affirmative defenses and to dismiss the counterclaim was denied, and plaintiffs filed responses thereto.

Plaintiffs moved for summary judgment. Discovery depositions of certain of the parties were taken. The defendant Ricardo Nunez filed an affidavit in opposition to the motion, which contained statements of certain facts in contradiction of plaintiff’s contention of nonperformance or improper performance by defendants, and stated certain facts in support of the affirmative defense above mentioned.

The trial court granted a summary judgment on the first count of the amended complaint, holding the plaintiffs were entitled to recover damages from NBS Development, Inc. and Ricardo Nunez, in an amount fixed by the court at $79,500.00 and holding the counterdefendants were entitled to judgment on the counterclaim. NBS Development, Inc. and Ricardo Nunez appealed.

On consideration of the record, briefs and argument, we hold entry of the summary judgment was error. The evidence did not demonstrate absence of genuine issues of material facts as to the affirmative defenses, the sufficiency of which had been challenged and upheld on motion to dismiss and strike. Emile v. First National Bank of Miami, 126 So.2d 305 (Fla.Sd DCA1961). On the pleaded contentions of the parties plaintiff and defendant, relating to the count and contentions on which summary judgment was entered, the evidence presented genuine issues of material facts which could not be resolved on motion for summary judgment, including issues as to whether the loss was caused by failure of the contractor corporation to properly perform in the handling of the construction, or was caused by improper conduct of the plaintiffs by refusal to furnish the cooperation necessary to obtain financing needed for completion of the improvement, or whether the loss by foreclosure was due to economic or other circumstances for which the parties were not responsible. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Visingardi v. Tirone, 193 So.2d 601 (Fla.1966); Megdell v. Wieder, 327 So.2d 781 (Fla.3d DCA1976); Furlong v. First National Bank of Hialeah, 329 So.2d 406 (Fla.3d DCA1976).

Upon disposing of the appeal on that basis, we refrain from expressing opinion on whether the contract provision for recon-veyance of the property to the Suero group in event of failure of performance by the Nunez group was a provision for payment by means of or out of a particular fund, and if so, whether that would preclude the granting of damages or relief on a different basis than that thus contracted for, notwithstanding the loss of the property by foreclosure.

The summary judgment appealed from is reversed, and the cause is remanded for further proceedings.

      . “9. It will be the obligation of the Nunez group to fulfill all of the steps necessary for the construction and termination of said Condominium building until the obtention of C. O. in collaboration with the Suero group.
      “10. In the event that the Nunez group fails to fulfill its above obligation, the partnership will convey the property to the Suero group, thereby restoring title to it.”


text:
    Helen WIENER, Appellant, v. Seymour James WIENER, Appellee.
    No. 76-684.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.

      Spiegelman & Spiegelman and Ronald A. Gottlieb, Miami, for appellant.
    Joseph Pardo, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

The appellant sought to enforce a property settlement agreement; the appellee sought to modify it. The chancellor conducted a number of hearings and finally concluded that the appellant was not entitled to a money judgment for certain ar-rearages of alimony; that the appellee was not entitled to modify the arrangement the parties had worked out and, further, that the parties by oral agreement had declared a moratorium on the appellee’s responsibility during the period of time that he was unemployed. The final order rendered reads, in part, as follows:

******
“THE PARTIES HERETO were divorced on July 16, 1965. The Final Decree awarded the Plaintiff, HELEN WIENER, alimony and support and by various Petitions for Modification, because of the changed circumstances of the Defendant, SEYMOUR JAMES WIENER, said Petitions were granted and the original amount of support was reduced to $560.00 per month, apportioned $420.00 per month as alimony and $140.00 per month as child support.
“On October 5, 1971, this Court provided that because of the changed circumstances of the Defendant, that the' previous Order requiring the Defendant to pay the above sums, was deferred until on or about January, 1972, at which time, the Court was to re-examine the support requirements as to the needs of the Plaintiff and the ability of the Defendant to pay.
“Since the date of the last Order, October 5, 1971, the Defendant testified and this Court does find that the parties hereto had entered into an agreement whereby the Defendant was to refrain from petitioning the Court for modification and refrain from petitioning the Court to reexamine the support requirements as to the needs of the Plaintiff and the ability of the Defendant to pay and the Defendant agreed to pay to the Plaintiff the $300.00 per month which was required by the mortgage payment, which was,given to the Plaintiff as part of the settlement agreement, and to waive the payment of any alimony to the Plaintiff until such time as the Defendant became employed. “The parties further agreed that, at the time that the Defendant became employed again, that he would commence to pay to the Plaintiff $150.00 per month in addition to the $300.00 per month under the mortgage agreement, making a total payment to the Plaintiff by the Defendant of $450.00 per month.
“This Court finds that the parties hereto abided by said arrangement and this Court finds that said new agreement is legally binding between the parties and the payments made thereunder were complied with by the Defendant, SEYMOUR JAMES WIENER.

“The case of Margaret C. Luedke v. John Claud Behringer, (Fla.App.1962), 143 So.2d 218, brought to the Court that very issue and considered the allegations of arrearages in support made by a Plaintiff-Wife, in regard to whether the agreement between the parties subsequent to the entry of a decree was a binding agreement. The Court said, in upholding said agreement:

“ ‘The Plaintiff, however, contends that the parties’ agreement of March 24, 1951, subsequent to the decree, regarding the maintenance and education of their minor daughter, was not a legally binding agreement and that the payments made, even though pursuant to such agreement, were in fact insufficient, and that the circumstances justified a Judgment against the Defendant for arrearage. The Chancellor’s refusal to enter Judgment with respect to past support is sustained by the trend of decisions in similar cases. See Dutcher v. Dutcher, 103 Kansas 645, 176 P. 975; Annotation 84 A.L.R. 299
* * * * * *

“This Court does find, from the testimony presented, that the stipulated amounts of support was duly paid by the Defendant, SEYMOUR JAMES WIENER, to the Plaintiff, HELEN WIENER, and further, that the new agreement had been honored by the parties, and the Plaintiff, HELEN WIENER, in this case, had not suffered in the interim.

“It is clear, in the law, that a party may waive any rights to which he or she is legally entitled, whether guaranteed by the Constitution, conferred by Statute, secured by contract, or by a Final Decree entered by the Court. 12 Fla.Jur. Estoppel and Waiver, § 5; 56 AmJur. Waiver, § 4; Gilman v. Butzloff, [155 Fla. 888,] 22 So.2d 263. This waiver may be express or implied. Thomas N. Carlton Estate, Inc. v. Keller, (Fla.1951), 52 So.2d 131. * * * * * *

“This Court, on January 21, 1976, at the time of the entry of the Order Denying Plaintiff’s Motion for Contempt, did enter a Judgment in favor of the Plaintiff, against the Defendant, in the sum of FOUR THOUSAND FOUR HUNDRED TEN DOLLARS ($4,410.00), for past due arrearages of alimony from January 1, 1975 up to January, 1976, and has also ordered the Defendant to continue making payments to the Plaintiff, in the sum of FOUR HUNDRED TWENTY DOLLARS ($420.00) per month, commencing February 1, 1976, and continuing each month thereafter until further Order of this Court. The Defendant is still paying to the Plaintiff, in addition to the above-mentioned $420.00 per month, THREE HUNDRED DOLLARS ($300.00) per month on the mortgage which she has on the Defendant’s property.

“This Court has taken into consideration all of the equities between the parties and has attempted to do equity by the entry of the Orders herein referred to. “The Plaintiff has also raised the question of whether a written contract, which specifies it is not to be varied except by a written agreement, can it be modified by a subsequent oral contract. The Plaintiff, in his [sic] Memorandum of Law to this Court, has recognized that a written agreement may be altered or modified by an oral agreement if the latter has

(1) been accepted, and

(2) has been acted upon by the parties in such a manner as would work a fraud upon either party to refuse to enforce it. “This Court further finds that the written contract of agreement has been altered and has been modified by the oral agreement between the parties, which has been accepte'd and has been acted upon by the parties, and it would work a fraud upon the Defendant, in this cause, if this Court refused to enforce the oral agreement.

“In 10(a) FlaJur., Dissolution of Marriage, # SIS, [sic] the author states:

“ ‘It seems obvious that if the parties are free to make a separation agreement or property settlement, they are likewise at liberty to make a new or supplemental agreement without judicial intervention. Citing Ash v. Ash, (Pla.App.1967) 197 [193] So.2d 677.’

“Further, in said works, the author states the following:

“ ‘An agreement between former spouses, releasing the former husband from his obligations under an earlier divorce decree which requires him to pay child support, is valid as between the parties. Citing Warrick v. Hender, Fla.App.) [sic] 198 So.2d 348. See also ANNOTATIONS: Validity and Effect, as Between Former Spouses, of Agreement Releasing Father From Further Payment of Child Support Provided For In An Earlier Divorce Decree. 57 A.L.R.2d 139.’

“This Court further finds that even though the parties may have stipulated, in a written contract, that it is not to be varied by the parties unless by an agreement in writing, the general rule is that they may modify it by subsequent oral contract. 7 Fla.Jur. Contracts, § 170; 12 Am.Jur. Contracts, § 428.

“Based upon the foregoing findings of fact and applicable law, this Court, after due consideration, it is:

“ORDERED, ADJUDGED and DECREED that the Plaintiff’s request for Judgment for arrearages of alimony, from October, 1971 through and including December, 1974, be and the same is herein denied.” [emphases supplied]

* * # # * *

The appellant urges that there was no evidence to support the chancellor’s finding of a moratorium in the payments required under the agreement, and that even if there was such an oral agreement it was contrary to the express provisions of the written property settlement agreement and, therefore, not binding.

We find no error. First, there is substantial, competent evidence in the record to support the chancellor’s finding that there was an oral modification agreement and, therefore, this finding should not be disturbed. Cole v. Cole, 130 So.2d 126 (Fla. 1st D.C.A.1961); Wilson v. Wilson, 210 So.2d 732 (Fla. 1st D.C.A.1968); Patterson v. Patterson, 214 So.2d 381 (Fla. 1st D.C.A. 1968). Secondly, even though the written agreement had a provision that provided it could not be modified except by subsequent written agreement, the parties by their actions could either waive their rights thereunder or orally modify same. Professional Insurance Corporation v. Cahill, 90 So.2d 916 (Fla.1956); Larnei Builders, Inc. v. Nicholas, 123 So.2d 284 (Fla. 3rd D.C.A. 1960); Doral Country Club, Inc. v. Curcie Brothers, Inc., 174 So.2d 749 (Fla. 3rd D.C. A.1965).

Therefore, the order under review be and the same is hereby affirmed.

Affirmed.


text:
    GULFSTREAM CENTER ENTERPRISES, INC., and Steven Paskind, Appellants, v. The STATE of Florida ex rel. Richard E. GERSTEIN, as State Attorney for the Eleventh Judicial Circuit of Florida, Appellee.
    No. 76-741.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Augus M. Stephens, Jr., Max B. Kogen and Geoffrey C. Fleck, Miami, for appellants.
    Richard E. Gerstein, State Atty. and Kurt Marmar, Asst. State Atty., for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of North Bay Village Lions Foundation, Inc. v. City of Miami Beach, 338 So.2d 236 (Fla. 3d DCA 1976).


author: NATHAN, Judge.

text:
    Doris BAUMGARDNER, Individually, and as Executrix of the Estate of Donald Baumgardner, et al., Appellants, v. Yvonne KENNEDY et al., Appellees.
    No. 76-742.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Richard C. Carter, Miami, for appellants.
    Adams, George, Lee & Schulte and David L. Willing, Miami, for appellees.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

This is an appeal by defendant Doris Baumgardner, individually and as executrix of the estate of Donald Baumgardner, from-an adverse final judgment quieting title to a parcel of commercial real estate.

The record reflects that in 1948, one Dona J. Stevenson conveyed title to the property by warranty deed to two brothers, Homer and Donald Baumgardner. Each brother had an undivided one-half interest in the property. Subsequently, Homer and Donald each executed a warranty deed conveying to their respective wives, Doris and Florence Baumgardner, an undivided one-half interest of an undivided one-half interest of the whole property. The warranty deed to each wife contained the following clause:

“This is a deed from husband and wife and the full intent and meaning of the said transfer is to create an estate by the entirety between the grantor and the grantee herein in and to an undivided one-half (V2) interest of the above-described property.”

In 1958, Homer died and his wife, Doris became the owner of an undivided one-half interest in the property. In 1971, Donald died. His wife Florence was adjudicated incompetent and later died. Donald left a will, naming his sister-in-law, Doris, as executrix, in which he established a trust with the life estate to Florence, and the remainder to Doris Baumgardner and Elbert Baumgardner, defendants in the quiet title suit. Donald’s will was probated, and City National Bank was appointed trustee, and also Florence’s guardian.

It appears that during the probate of Donald’s will, Doris represented to the probate court that an undivided one-half of an undivided one-half (or one-fourth) interest in the commercial property passed to Florence by the warranty deed, and that the remaining one-fourth interest passed by Donald’s will into his estate, and thus into the trust. The court entered a final order of discharge based upon these representations.

After the final order of discharge in Donald’s estate, Yvonne Kennedy, administra-trix of the estate of Florence Baumgardner, deceased, and Yulee Crews, sole surviving heir to Florence’s estate, appellees herein, filed a complaint to quiet title alleging that they are the owners and holders of an undivided one-half interest in fee simple in the property. From a final judgment quieting title in favor of Kennedy and Crews, defendant Doris Baumgardner, individually, and as executrix, takes this appeal.

The primary issue here presented is the interest Florence obtained by the warranty deed. The plaintiff-appellees contend that Florence owned an undivided one-half interest by the entirety and therefore, no interest in the property passed into Donald’s estate. The defendant-appellant contends that one-fourth of the property passed through the estate and only one-fourth became Florence’s by the entirety. She further contends that even if an undivided one-half interest might have vested in Florence by the entirety, the order of discharge bars a subsequent claim by the plaintiff-appellees.

In the final judgment quieting title, the trial court found, and we agree, it is clear that Donald, by the warranty deed, intended to and did create an estate in himself and his wife, in his undivided one-half interest in the property, which upon the death of either would vest the full title in the other. The trial court apparently relied on Little River Bank and Trust Company v. Eastman, 105 So.2d 912 (Fla.3d DCA 1958), and we find that it is controlling in this case.

Moreover, there was competent substantial evidence to support the findings of the trial judge in that the most reasonable inference from the language of the warranty deed is that Donald intended to and did create an estate by the entirety of his one-half undivided interest in the property.

The fact that the probate court may have incorrectly considered a one-fourth interest in the property as being a part of Donald’s estate, could not divest the title thereto from the true owner.

Affirmed.


text:
    CAROL CIVIC ASSOCIATION, INC., a Florida Corporation, et al., Appellants, v. The STATE of Florida ex rel. Richard E. GERSTEIN, as State Attorney of the Eleventh Judicial Circuit of Florida, Appellee.
    No. 76-759.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.

      Angus M. Stephens, Jr., Max B. Kogen and Geoffrey C. Fleck, Miami, for appellants.
    Richard E. Gerstein, State Atty. and Kurt L. Marmar, Asst. State Atty., for appellee.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of North Bay Village Lions Foundation, Inc. v. City of Miami Beach, 338 So.2d 236 (Fla. 3d DCA 1976).


author: HAVERFIELD, Judge.

text:
    Irving WALDMAN and North Miami General Hospital, Appellants, v. Harry FRANKEL, as Administrator of the Estate of Mary Frankel, Deceased, and Harry Frankel, Individually, Appellees.
    No. 76-2166.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Hastings & Goldman and Samuel Z. Goldman, Miami Beach, for appellants.
    Michael L. Lechtman, Miami, for appel-lees.
    Before HENDRY, C. J., and HAVER-FIELD and HUBBART, JJ.
   HAVERFIELD, Judge.

Defendants appeal an order denying their motions to dismiss for failure to prosecute.

On January 16, 1969 plaintiffs, Mary (now deceased) and Harry Prankel, filed a malpractice action against defendant-appellants, Dr. Irving Waldman and North Miami General Hospital, Inc. The cause was set down for trial on September 9, 1974; however, prior thereto, on September 5 plaintiffs filed a motion for continuance, and their attorney filed a motion for leave to withdraw. These motions were granted on September 13. On September 5, 1975 Stephen Hertz as attorney for plaintiffs filed a notice of appearance along with a set of interrogatories directed to defendant Dr. Waldman. After a lapse of almost one year, plaintiffs on September 2,1976 filed a motion to compel answers to interrogatories but omitted any notice of hearing thereon. On September 8 Dr. Waldman and North Miami General filed motions to dismiss for failure to prosecute pursuant to Fla.R. Civ.P. 1.420(e). On September 10 plaintiffs filed a notice of hearing on their September 2 motion to compel. After several hearings on the motions to dismiss for failure to prosecute and the filing of memoranda of law with respect thereto, the trial judge denied these motions to dismiss and defendants appeal the order of denial. We affirm.

A ruling on a motion for order of dismissal for failure to prosecute is subject to attack only on the ground that it constitutes an abuse of discretion and this heavy burden rests with the losing party, in this case the defendants. Popkin v. Críspen, 213 So.2d 445 (Fla. 4th DCA 1968); Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So.2d 126 (Fla. 3d DCA 1975). Furthermore, judicial restraint should be practiced in the court’s inherent power to dismiss actions for want of prosecution to the end that persons have the guarantee and privilege of having their cause adjudicated. Popkin v. Crispen, supra.

Turning to the instant case, we find that plaintiffs’ motion to compel answers to interrogatories constituted sufficient record activity. See, e. g. Musselman Steel Fabricators, Inc. v. Badziwon, 263 So.2d 221 (Fla.1972). In addition, defendant Dr. Waldman’s failure to answer the interrogatories attributed to the delay in bringing this cause to trial. Cf. Grossman v. Segal, 270 So.2d 746 (Fla. 3d DCA 1972).

No abuse of discretion has been demonstrated by the defendants and, therefore, the order denying their motions to dismiss is affirmed.

Affirmed.


text:
    Norris H. BARR, Appellant, v. Ruth O. BARR, Appellee.
    No. 76-2222.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.

      Weiss & McDonald, Hollywood, for appellant.
    Sabatino & Doyle, Bay Harbor Island, for appellee.
    Before NATHAN and HUBBART, JJV and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an interlocutory appeal by the husband, Norris H. Barr, from an order of the Dade County Circuit Court denying the husband’s motion to transfer cause to Bro-ward County Circuit Court, and finding that the Dade County Circuit Court has jurisdiction of the parties.

A petition for dissolution of marriage was filed by the wife, Ruth 0. Barr, in Dade County Circuit Court. The husband was served in Broward County, and he proceeded to file a sworn “motion to dismiss and/or transfer for improper venue”, stating that the parties were married in Hollywood, Broward County, Florida, on December 20, 1975; that in April of 1976, they separated, the separation being effectuated at Bro-ward County; that when the marriage became irretrievably broken and at the time of the separation, the parties were living in Broward County; that at all times material, the husband was and is a bona fide resident of Broward County; that in accordance with Section 47.011, Florida Statutes, venue would only be proper in the Broward County Circuit Court; and that jurisdiction does not lie in Dade County.

The wife then filed an affidavit of domicile stating that at the time of the filing of the petition for dissolution of marriage, she was a resident of Dade County; and that she is and has been employed at Mount Sinai Medical Center in the recovery room, Miami Beach, Florida.

There was a hearing on the husband’s “motion to dismiss and/or transfer for improper venue.” The trial court entered its order denying the motion, and this interlocutory appeal ensued.

As held in Carroll v. Carroll, 322 So.2d 53, 57 (Fla. 1st DCA 1975), for purposes of Section 47.011, Florida Statutes (1975), which provides that,

“Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. . . .” (emphasis supplied)

a cause of action for dissolution of marriage arises in the Florida county in which the parties were last present with a common intent to remain married. In our opinion, this holding is dispositive of the venue issue in this case, and we find that the only county in which venue is proper is Broward. See Winter v. Curtis, 311 So.2d 815 (Fla. 3d DCA 1975), and Auritt v. Auritt, 334 So.2d 68 (Fla. 3d DCA 1976).

Therefore, the trial court erred in denying the husband’s motion to transfer to Broward County, and we reverse. This cause is remanded to the trial court with directions to enter an order transferring the action to the Circuit Court of Broward County as provided for by Rule 1.060, Fla.R. Civ.P.

Reversed and remanded.


author: PEARSON, Judge.

text:
    STATE of Florida ex rel., Sadie LOVE, Relator, v. Ira S. JACOBSON, M.D., et al., Respondents.
    No. 77-341.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Rehearing Denied April 20, 1977.
    Cohen & Kokus and Linda Koenigsberg, Miami, for relator.
    Law Offices of Howard E. Barwick, Miami Shores, by M. Lee Gay, Jr., Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for respondents.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

Relator Sadie Love is a claimant in a medical mediation proceeding pursuant to the Medical Liability Mediation Panel Law, Section 768.44, Florida Statutes (1976 Supp.). She filed her suggestion for writ of prohibition alleging that the medical mediation panel lacked jurisdiction to proceed with the mediation because more than six months had expired from the date of the filing of the claim and that although the time was extended to six months from the date of the filing of claim, no further order was made to extend the time to the ten months provided for jurisdiction of the panel. This court issued a rule nisi and responses upon the merits have been filed.

It appears without contradiction from the petition, responses and briefs filed herein that on January 19, 1977, after the expiration of the six month period, claimant made an ore tenus motion either to terminate jurisdiction or to extend to ten months the time to hear the cause. In response thereto, the judicial referee denied claimant’s motion to terminate jurisdiction but did not expressly rule upon the motion to extend to ten months the time to hear the cause. We hold that the order of the judicial referee denying claimant’s motion to terminate jurisdiction was correct. The statute, by providing that if there is no hearing on the merits within ten months of the date the claim is filed the jurisdiction of the mediation panel terminates, thus provided that jurisdiction of the panel to holding a hearing on the merits necessarily extended until the expiration of such ten month period.

Whereupon, upon consideration of the suggestion for writ of prohibition and the responses filed, it is ordered that the rule nisi is quashed and the suggestion for writ of prohibition is dismissed.

It is so ordered.


author: McCORD, Judge. MILLS, Judge,

text:
    GEORGE W. DAVIS & SONS, INC., a Florida Corporation, Appellant (Plaintiff), v. Reubin O’D. ASKEW, etc., et al., as and constituting the head of the Department of Revenue of the State of Florida, Appellees (Defendants).
    Nos. AA-186 and AA-208.
    District Court of Appeal of Florida, First District.
    March 30, 1977.
    E. C. Deeno Kitchen and Brian S. Duffy, Ervin, Varn, Jacobs & Odom, Tallahassee, for appellants in AA — 186, for appellees in AA-208.
    Robert L. Shevin, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., for appel-lees in AA-186, for appellants in AA-208.
    Julian Bennett, Hilton, Bennett, Logue, Paulk & Burke, Panama City, for appellees in AA-208.
   McCORD, Judge.

These are two consolidated appeals from the same final judgment. Each party is both appellant and appellee, but George W. Davis & Sons, Inc., (hereinafter sometimes called Davis) having filed notice of appeal first, will be treated as appellant and the Department of Revenue of the State of Florida (hereinafter sometimes called the Department) will be treated as appellee and cross-appellant.

The final judgment enjoined the Department (defendant below) from collecting from Davis (plaintiff below) taxes on admissions for transactions (individual admission fees for sport fishing on party boats in the Gulf of Mexico) between July 1, 1970, and the filing in the Circuit Court of Leon County of the mandate of this court in Department of Revenue v. Pelican Ship Corporation, 257 So.2d 56 (Pla. 1 DCA 1972). Davis contends the trial court erred in not encompassing within the injunction a period extending beyond the filing of the aforesaid mandate. The Department contends the trial court erred in enjoining it from collecting any of the taxes. We agree with the ruling of the trial judge and therefore disagree with the contentions of both parties.

The trial court in its final judgment made a well-reasoned analysis of this case as follows:

“Plaintiff operates deep-sea fishing boats which sail from Panama City out to the high seas, where paying customers, for a charge made when they board the ship in Panama City, fish, relax and, in due time, return to Panama City. For many years, plaintiff collected from its customers and remitted to the state the admissions tax imposed by Chapter 212, Florida Statutes. In 1966, plaintiff became aware of an injunction against the collection of this tax secured by a competitor operating out of Destin. This injunction, of course, applied only with reference to the taxes of the competitor, but was based upon a holding that the tax was invalid as applied to operations which, for all practical purposes, were identical with those of plaintiff.
Plaintiff was informed that this case was being appealed, and it continued to collect from its customers and remit to the state the ‘admission’ taxes on its charges to its customer.
In April 1968, the District Court of Appeal, First District, decided the Kelly case and held, in quite explicit language, that the admission tax laws did not apply to operations such as those of Kelly Boat Service, Inc. which, as above stated, were, for all practical purposes identical with those of plaintiff. Plaintiff was informed by a representative of the Florida Revenue Commission that the case would be appealed further and so, for a time, it continued to collect and remit to the state admission taxes on the amounts it charged its customers.
Thereafter, numerous conferences were had between plaintiff’s president and representatives of the Revenue Commission. The parties are not in agreement as to exactly what transpired at these conferences, but the court is convinced that the Revenue Commission felt bound by the Kelly decision insofar as operations within the First Appellate District were concerned, but was not satisfied with that decision, and continued to collect the tax in the remainder of the state. The Revenue Commission made it plain to plaintiff that it would not, so long as Kelly was in effect, attempt to enforce collection of any admissions tax upon plaintiff’s operations, although its officers disclaimed any abandonment of their views that Kelly was wrong.
In the spring of 1969, plaintiff ceased to collect admission taxes from its customers but, as an anchor to windward, it at that time increased its charges so that it could absorb the tax if it were later collected.
Finally, in the fall of 1969, after further indications that the Department of Revenue would not enforce collection of admission taxes upon its operations, plaintiff abandoned any plans to collect or absorb the tax, and thereafter operated on the theory that the tax would never be enforced. This status was unchanged until the decision of the District Court of Appeal in Pelican , which held the admission tax on admissions legally indistinguishable from those of plaintiff to be taxable.
After Pelican, the Department of Revenue demanded, and plaintiff paid, the tax beginning in the fall of 1972.
A most careful examination of Kelly and Pelican leads this court to the conclusion that any legal scholar, including the circuit judge who decided Pelican (and whose decision was reversed) would find it most difficult, if not impossible, to anticipate the distinction from Kelly drawn by the Court in Pelican.
It is not the function of this court to say that either decision was wrong. It is the function of this court to protect the legal rights of citizens who try earnestly to pay their just taxes.
After the decision in Kelly, plaintiff found itself in this position: A court of final appellate jurisdiction had held the admissions tax inapplicable to a factual situation which any reasonable man, including a learned lawyer, would find to be legally indistinguishable from that of plaintiff. The Department of Revenue recognized this by advising plaintiff that it would not, at least for the time being, attempt to enforce collection of the tax upon plaintiff’s operations. At least one major competitor was protected by a court order from the duty to collect the tax. Under these circumstances, the plaintiff was justified in ceasing to collect the tax from its customers. Had plaintiff continued to collect the tax, and had Kelly not been ‘distinguished’ by Pelican, plaintiff would have been collecting money which, under Kelly, did not belong to the state, and which plaintiff would have been legally and morally obligated to return to its customers upon demand. In the last analysis, the law is what the courts say it is. It is the duty of all citizens to obey the law as announced by the courts.
When plaintiff, following the language of Kelly, ceased to collect the admission tax from its customers, it was guided by the highest authority available to it at the time. It should not be penalized for so doing.
The appellate court of this state has long applied the principles of estoppel to the state and its agencies, sometimes going further than this court and reversing this court for refusing to hold the state es-topped by the acts of its officers.
Ordinarily, where a tax legally owing by a citizen is not collected due to the error of the taxing officials, the state should not be estopped from back assessing and collecting that tax. The citizen is merely paying at a later date that which he should have paid in the beginning.
But when the state makes a private business, in effect, its agent for the collection of taxes from others, and makes the business liable for the tax it fails to collect as a means of enforcing the collection, a different situation is presented. While Kelly was in effect, plaintiff was confronted with what any reasonable man would consider an authoritative holding that the tax was not legal and should not be collected by plaintiff from its customers. •
It would be most unconscionable to now say that plaintiff should have anticipated Pelican and, notwithstanding Kelly, should have exacted the tax from its customers.
However, when the mandate came down in Pelican, the law as (apparently) determined in Kelly was superseded by the law as announced in Pelican, and plaintiff should have then immediately begun collecting the tax from its customers. Plaintiff was then no longer protected by Kelly or any representative of any of the staff of the Department of Revenue.”

The Florida Supreme Court has held that in certain circumstances, estoppel will lie against the state. Daniell v. Sherrill, 48 So.2d 736 (Fla.1950), 23 A.L.R.2d 1410; Trustees of the Internal Improvement Fund v. Bass, 67 So.2d 433 (Fla.1953). The courts of Florida have also, in certain instances, upheld estoppel against assessment of back taxes by a municipality. City of Naples v. Conboy, 182 So.2d 412 (Fla.1965); and Coppock v. Blount, 145 So.2d 279 (Fla. 3 DCA 1962). Also other jurisdictions have upheld estoppel against the collection of taxes. See U. S. v. Bureau of Revenue, 87 N.M. 164, 531 P.2d 212 (Ct.App.N.M.1975); In re Estate of Kruse, 36 Cal.App.3d 909, 112 Cal.Rptr. 50 (1974); Pilgrim Turkey Packers, Inc. v. Dept. Rev., 261 Or. 305, 493 P.2d 1372 (1972). It is apparent that, although the instances thereof are not numerous, es-toppel will lie against the government and a taxing agency may be estopped from collecting back taxes if the circumstances of the particular case are sufficiently strong to warrant an estoppel. This case involves exceptional circumstances under which justice and right require that estoppel be invoked.

In Straughn v. Kelly Boat Service, Inc., supra, hereafter referred to as Kelly I, this court held admission taxes such as those involved in this suit to be void. There the court said:

“The basic question presented for our determination in this appeal is whether the plaintiff’s said operations were subject to the sales, use, and admission tax laws of the State of Florida (Chapter 212, Florida Statutes, F.S.A.).
******
In view of our above holding that the taxes involved in this appeal are void, there is no necessity here for us to pass upon the other points raised by the appellants in this appeal, and we do not here pass upon them, one way or the other. Accordingly, the final decree appealed from herein must be and it is Affirmed.” (Emphasis supplied)

The court file in Kelly I shows that a petition for rehearing was filed which raised the question of the’ court’s decision in relation to the admission tax. It was denied.

Confronted with the above decision in the later case, Department of Revenue v. Pelican Ship Corporation, supra, this court evidently determined that it had erred in its ruling in Kelly I. The opinion in Pelican took the view that in Kelly the court had only ruled the taxes involved in the suit other than the admission taxes were void and stated:

“. . . The admissions transaction was not squarely ruled upon by our decision in Kelly Boat Service. Yet, if there is language in that decision tending to indicate that we held the admissions to be not taxable, then the matter should be clarified by receding from any such language.”

It is clear that in Kelly I this court ruled the admissions tax void and later in Pelican receded from such ruling and held the admission tax valid. As stated by the trial court in its final judgment, it would be unconscionable for us to now say that Davis, who, with the approval of the Department of Revenue, followed the law as pronounced by the final decision of this court in Kelly I, must now pay back taxes for the interim period between this court’s opinion in Kelly I and its opinion in Pelican.

While as a general rule, substantive tax liability may not be discharged by estoppel, here we do not have the usual tax situation in which an estoppel has been denied. This is not a tax which the taxing authority, through error or mistake in interpreting the law, failed to assess against a taxpayer and upon later discovering the error, seeks to now require the taxpayer to pay what he should have paid at the previous time. Here, the tax is one which the law requires the taxpayer to collect for the state. The taxpayer is, in a sense, collecting agent for the state. During the interim between the court’s final opinion in Kelly I and its opinion in Pelican reversing its decision in Kelly I, appellant had no authority to collect the tax. As the trial court pointed out in its final judgment:

“Had plaintiff co'ntinued' to collect the tax, and had Kelly not been ‘distinguished’ by Pelican, plaintiff would have been collecting money which, under Kelly, did not belong to the state, and which plaintiff would have been legally and morally obligated to return to its customers upon demand.”

There is no way that appellant can now reverse time and go back and collect this tax from its past patrons. Under these circumstances, we find that the trial court was correct in ruling that the state is es-topped to now require that Davis pay these taxes from its own pocket.

We have not overlooked this court’s opinion by a different panel in Department of Revenue v. Kelly Boat Service, Inc., 324 So.2d 651 (Fla. 1 DCA 1975), hereafter referred to as Kelly II, which reached a different conclusion from the ruling here on the question of payment of the back admission taxes. We have examined the record of that case and find that the primary focus of appellees there was upon their contention that the admission tax was illegal — an issue which had been decided in Pelican but with different parties. Appellees there also contended that if the tax was valid, the law established by Pelican should be given prospective application only and not retrospective application. Although appellees in Kelly II referred to estoppel on several occasions throughout that voluminous record, there was never any clear focus on a contention of estoppel. There was no evidence presented in Kelly II (as was presented here) which would indicate that the Department, through its actions had encouraged appellees not to collect the tax during the interim between the decision in Kelly I and the decision in Pelican. In fact, the only evidence on that point was that the Department had never told Kelly or any of the other boat operators who testified in that case that the tax was not due. The decision in Kelly II was bottomed squarely upon the record there before the court when this court said:

“The state is not foreclosed, by reason of our 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise, to assert that on the facts shown by this record Kelly should satisfy its full tax liability incurred within three years prior to August 1, 1973.”

Based upon the record in the case sub judi-ce, we find as aforesaid that estoppel should be applied in this case for the period of time between the rendition of this court’s opinion in Kelly I and its opinion in Pelican.

Affirmed.

RAWLS, Acting C. J., concurs.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent. The trial court entered a judgment in a declaratory judgment action holding the Department's assessment of delinquent taxes on admissions to Davis’ deep sea fishing boats for the period of 1 July 1970 to 2 February 1972 was void. Davis appeals contending the court erred in failing to hold that the assessment of taxes for the period of 2 February 1972 to November 1972 was void. The Department cross appeals contending the court erred in holding the assessment of taxes for the period of 1 July 1970 to 2 February 1972 was void. The issue before us is whether the Department is estopped from assessing the delinquent admissions tax.

Davis operated party and charter deep sea fishing boats in the Gulf of Mexico. The boats embarked from Panama City where an admission charge was collected from the customers. For many years prior to January 1969, Davis collected from its customers and remitted to the Department the admissions tax imposed by Chapter 212, Florida Statutes.

In April 1968, this Court held in Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla. 1st DCA 1968), that the State did not have authority to impose and collect sales taxes on the sale of food and drink and the rental of fishing equipment which occurred on a deep sea fishing boat outside the territorial limits of Florida in the Gulf of Mexico. Davis contended that our decision also held that the Department had no authority to impose and collect an admissions tax. The Department arrived at a similar construction to the extent that it made no effort to collect the admissions tax in North Florida counties within the district of the First District Court of Appeal, although it did collect the tax throughout the rest of the State. The trial court agreed with Davis’ interpretation of our decision.

. Thereafter, numerous conferences were held between Davis and representatives of the Department. These representatives made it clear to Davis that as long as Kelly was in effect it would make no attempt to enforce collection of admission taxes on his operation, although they disagreed with Kelly.

As a result of his construction of Kelly and his conferences with representatives of the Department, Davis ceased collecting and remitting admissions taxes as of January 1969. He continued this practice until our decision in Department of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla. 1st DCA 1972), which held that a business operation similar to the one here was subject to the admissions tax. After Pelican, the Department demanded, and Davis paid, the admissions tax commencing in November 1972.

The trial court held that because of Davis’ construction of Kelly, with which it agreed, and the Department’s conduct after Kelly, it was estopped to assess a delinquent admissions tax for the period 1 July 1970 to 2 February 1972, the date the mandate in Pelican was issued.

Davis, the Department and the trial court incorrectly read and interpreted Kelly. It clearly appears in Kelly that we did not rule on the validity of the admissions tax. This is cárefully pointed out in our subsequent decision in Pelican.

Although the trial court’s judgment and Davis’ counsel make persuasive and appealing presentations in support of Davis’ theory of estoppel, the law is to- the contrary.

As a general rule, substantive tax liability may not be discharged by estoppel.

“Generally, however, for surmounting considerations of public policy it has been held that in the collection of sales taxes, as in regard to the collection of other taxes by the state, no laches, waiver, or estoppel can be imputed to the state. It seems to be universally recognized that, generally, a state cannot be estopped by the acts and conducts of its officers or agents in the performance of the governmental function of collecting taxes legally due. The reason for the rule is obvious: no administrative officer is vested with the power to abrogate the statute law of the state, nor to grant to an individual an exemption from the general operation of the law.
“. . . Laches or failure to collect a tax by a state tax commission or agency administering the tax no matter how long such conduct is continued, does not estop the state from requiring payment which is due and unpaid and not barred by the statute of limitations. .
“. . .A rule or regulation of a state tax commission purporting to exempt a taxpayer from the payment of his tax where no authority to do so has been specifically granted to it by the legislature cannot operate as an estoppel to collect such tax in the case of transactions which have been closed so that the seller cannot collect the tax from the purchaser. ...” 68 Am.Jur.2d, Sales and Use Taxes, Section 162, Page 216-218.

In North American Co. v. Green, 120 So.2d 603 (Fla.1959), the Supreme Court of Florida held that where the Comptroller erroneously announced his adherence to a legal interpretation that a transaction was not taxable, he is not estopped from later asserting that tax liability exists.

Likewise, in the case of Dominion Land and Title Corporation v. Department of Revenue, 320 So.2d 815 (Fla.1975), the Supreme Court rejected a contention by the taxpayer that the failure of the officials charged by statute to collect taxes when due constituted an estoppel to assert penalties.

In addition, Section 212.14(6), Florida Statutes (1973), permits the Department to back assess for all unpaid admissions taxes for a three-year period. The statute vests in the Department no discretion to waive this tax liability.

Davis’ misunderstanding or misconstruction of Kelly does not excuse his failure to pay the tax imposed by statute. Although there may be exceptional circumstances under which a substantive tax liability may be discharged by estoppel, those exceptional circumstances are not present in this case. The acts of the Department’s representatives cannot estop the Department from collecting delinquent admissions tax legally due the State and which are not barred by the statute of limitations.

I would reverse that part of the judgment which holds the delinquent tax assessed for the period of 1 July 1970 to 2 February 1972 void and I would affirm the trial court’s refusal to hold void the tax assessed for the period of 2 February 1972 to November 1972.

      . Kelly Boat Service, Inc., v. Straughn, Circuit Court of Okaloosa, on appeal, Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla. 1 DCA 1968).

      . Dept. of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla. 1 DCA 1972).

      . The record shows that plaintiff has other business with respect to which the sales and use taxes have been regularly paid.


text:
    Don BRUNO and Steven Robert Eller, Appellants, v. STATE of Florida, Appellee.
    No. BB-388.
    District Court of Appeal of Florida, First District.
    March 30, 1977.
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

The opinion of the Florida Supreme Court in Croteau v. State, 334 So.2d 577 (Fla.1976), mandates a reversal of this cause. Neither the trial judge nor the state had the benefit of the Croteau opinion at the hearing on the motion to suppress the evidence relied upon to sustain the judgments of conviction appeal, which resulted in an order denying same entered on January 23, 1976. It is in the posture of a “Monday morning quarterback” that we now review the judgments of conviction entered on April 5, 1976.

On October 27, 1975, Bruno’s probation officer, in the course of his supervision, conducted a routine home contact with his probationer. In carrying out this mission, the probation officer visited the house in which Bruno was residing. According to the officer’s testimony, entrance to the house was gained pursuant to the following circumstances:

“I can’t recall if I actually knocked on the door. When I approached the residence, I saw my probationer, Don Bruno, standing there. And we had visual eye contact. I. was about to knock.”

On cross examination, in answer to the question of whether the probation officer was allowed entry by Bruno, the following colloquy transpired:

“A [probation officer] I felt it was a mutual — we had made eye contact. He knew my purpose of coming to the residence was to see him, obviously, and I felt very comfortable upon entering the residence.
Q [defense counsel] Did he open the door for you?
A No.
Q How did you gain entry to the house? A I opened the screen door.
Q You opened the screen door. Did you ask permission to come inside the house?
A I can’t recall. I visit a number of houses.”

After gaining entrance in the foregoing fashion, the officer detected the odor of marijuana and observed marijuana “roaches” in an ash tray in the living room. As the officer made his way to Bruno’s bedroom, Bruno was exiting the bedroom with a styrofoam container in his hand. The officer took the styrofoam container and, upon opening it, he observed, what he believed to be, eight bags of marijuana inside. After the police arrived, the probation officer went back into the house to make a more thorough search. He found amphetamines in a metal container in a box on a table in Bruno’s bedroom. Also, a police officer and the probation officer saw on Eller’s dresser in his bedroom narcotic paraphernalia (pipe).

Pursuant to pleas of nolo contendere, reserving their right to appeal the denial of their motion to suppress, Bruno was adjudicated guilty of possession of amphetamines and possession of more than five grams of marijuana, and Eller was adjudicated guilty of possession of more than five grams of marijuana.

The Florida Supreme Court held in Croteau v. State, supra:

“. . . that one facing trial for a new and discrete criminal offense [as Bruno and Eller were in the instant case] be given the full protection of the Fourth Amendment and the corollary means by which the search and seizure principle is vindicated. ... In short, we conclude that a probation officer has authority to enter upon the living quarters of his probationer to observe his life-style and any material evidence thereby discovered is admissible in proceedings for revocation of probation, but this does not validate an otherwise unreasonable search for contraband resulting in prosecution'for a separate criminal offense.”

Clearly, entrance was gained in the instant cause by means of the authority of the probation officer and for the purpose of conducting a routine contact with his probationer. The'contraband discovered through a warrantless search, such as was conducted in the instant case, cannot be utilized in the prosecution of a new and discrete offense.

The trial court erred in not granting appellants’ motion to suppress, therefore, the judgments of conviction are reversed. Such reversal is without prejudice to the state in utilizing the fruits of the search in proceedings for revocation of probation.

MILLS and SMITH, JJ., concur.

      . An occupant of the house testified that she was Steve’s (Eller) fiancee and at approximately 5:30 p. m. on this date “Steve and I had just got to his [Steve’s] house.”