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    Donald Bruce GRIMES, Appellant, v. STATE of Florida, Appellee.
    No. 74-863.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 12, 1975.
    Charles R. Stepter, Jr., of Fishback, Davis, Dominick & Simonet, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appealed judgment is reversed and the cause remanded for a new trial with directions that the defendant be permitted to elicit the name and address of the informant witness should the state choose to call him to the stand. This is done by authority of Hassberger v. State, 321 So.2d 577 (Fla.App. 4th 1975).

Grimes and Hassberger were codefend-ants convicted at the same time and under the same circumstances with reference to the confidential informant.

Reversed and remanded.

WALDEN, C. J., and BOOHER, STEPHEN R., Associate Judge, concur.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting):

Based upon a review of the specific facts and circumstances of this case it is my opinion that the judgment of conviction and sentence should be affirmed. I therefore disagree with the majority’s analysis of the facts and law as enunciated in Hassberger v. State, Fourth District Court of Appeal, 321 So.2d 577 opinion filed October 10, 1975, and as applied to this case.

This appeal presents a novel situation of first impression concerning the disclosure of the real name and address of a confidential informant and the conducting of an “in camera” proceedings pertaining to such disclosure.

The defendant Grimes was one of several persons arrested on November 10, 1973 by officers of the Orlando police department for delivery of marijuana. Several days prior to the arrest, the confidential informant identified as “Ed” made contact with the defendant and arrangements were made for “Ed” to purchase a quantity of drugs at a stated location. At the time of the delivery of the drugs, “Ed” was accompanied by Officer Herrera of the Orlando police department. The entire transaction was observed and electronically monitored by Officer Chastain, of the Orlando police department. After delivery of the marijuana to “Ed” and Officer Herrera at the agreed upon location, a prearranged signal was given; the defendant and others (later to become co-defendants) were then arrested by Officers Herrera and Chastain.

Prior to trial and pursuant to the motion of a co-defendant, the lower court entered an order on February 4, 1974, directing that the identity of the confidential informant be disclosed. However, on February 6, after an in camera hearing held pursuant to the state’s ex parte motion, the court modified its prior order of disclosure dated February 4, 1974. In support of its motion the state submitted a written statement, in affidavit form, which asserted that the informant was currently working as an undercover operator on other drug related cases under investigation and that the disclosure of his real name and address “could constitute a great and immediate danger to his life”. The effect of the modification was to relieve the state of the requirement to furnish the real name and address of the confidential informant directing, instead, that the confidential informant be referred to only as “Ed”. The court further ordered that the informant be made available to the defendant for discovery purposes and be present at the trial of the cause.

Thereafter, on March 7, pursuant to a motion of a co-defendant, the court further modified its order of February 6, directing the state to furnish defense counsel with the F.B.I. rap sheet or other local criminal record of said witness “Ed” with any reference to his true name and address obliterated. Subsequently, based upon various motions filed by the defendants and the state the court on March 14, modified its prior order of March 7 to the extent that the state was directed to “furnish to counsel for defense only such information from said witness’s criminal record or F.B.I. rap sheet, if any, which might lead defense counsel to admissible evidence . . . ”. The March 14 order directed the state to furnish the court with “any F.B.I. rap sheet or criminal record” of said witness “Ed”, if any, for an in camera inspection by the court. The March 14 order additionally directed the state to advise the defense that “if said witness has no criminal record or F.B.I. rap sheet, then state attorney may so indicate by affirmative statement or writing, filed of record in this cause . . . ”.

The record on appeal contains an exchange of correspondence between the state attorney’s office and the City of Orlando police department reflecting an inquiry by the state of the police department to ascertain whether any local criminal record or felony record exists with reference to “Ed” and a response by the police department indicating that no criminal record could be found on “Ed”. There is no indication as to whether the substance of this correspondence was communicated to any of the defendants prior to trial as contemplated by the aforementioned orders. Various other pretrial motions to compel discovery were also filed pertaining to the production of tapes and other evidence of electronic surveillance of conversations between “Ed” and the other co-defendants of Grimes. The court granted these motions and directed the state to comply and subsequently defendant Grimes was advised that the tapes of the conversations would be made available to him prior to trial.

The cause came to trial on April 23, resulting ultimately in the conviction of defendant and a sentence to imprisonment at hard labor of six months to five years.

At trial, the state called “Ed” as a witness. A review of the transcript of the testimony reflects that witness “Ed” was subject to extensive direct, cross and redirect examination. The circumstances surrounding witness “Ed’s” participation in the transaction giving rise to defendant’s arrest were dealt with at length as well as the fact that witness “Ed” performed undercover investigative work for law enforcement agencies for which he received payment in cash. The jury was clearly made aware of the nature of witness “Ed’s” role in the transaction as well as his “occupation”, i. e., “a paid professional informant”. Witness “Ed” was also cross-examined with respect to his criminal record as follows:

“Q Okay. And you have testified in Court before?
“A Yes.
“Q Have you ever been convicted of a crime ?
“A No, sir.
“Q Been arrested?
MR. HART: Obj ect to that question. It’s beyond the scope of permissible—
THE COURT: Sustained.”

In addition to witness “Ed”, the state offered the testimony of officers Herrera and Chastain and officer Page, who was an evidence technician and a chemist for the Sanford crime lab. Other than the cross-examination of the state’s witnesses, the defendant produced no testimony in rebuttal of the state’s case.

After having been tried and found guilty of the offense charged, defendant filed a motion for new trial on April 24, 1974, contending that it was error for the court to have deprived the defendant of the right of cross-examination as to the true identity of witness “Ed”. As a result, the trial court issued an order on May 20, 1974, indicating that the court would conduct in camera proceedings to receive “additional evidence upon the necessity in the first instance of keeping the address and real name of the alleged undercover operator Ed confidential throughout the trial”.

On May 28, 1974, the court conducted an in camera proceeding and heard the testimony of the following witnesses: an investigator from the state attorney’s office, the witness previously identified as “Ed”, and officer Herrera. An assistant state attorney was present at the in camera proceeding and participated with the court in the interrogation of the witnesses. A transcript of the in camera proceedings was made and ordered sealed subject to further order of the trial court or examination by the appellate court.

On May 29, the trial court entered a detailed order denying defendant’s motion for a new trial indicating, inter alia, that the evidence adduced at the in camera proceedings confirmed and reinforced the court’s previous order of nondisclosure regarding the real name and address of witness “Ed”. The order indicated that the court was convinced from the evidence “that the maintenance and continuance of the confidentiality of the true name and address of the witness has been maintained throughout these proceedings and trial in order to minimize personal danger to said witness.

The court order also recited that the in camera proceeding had revealed that witness “Ed” had been arrested in connection with two felonies occurring in 1943 and 1957 upon which there were no convictions; and that witness “Ed” was involved in two minor traffic offenses in 1947. In assessing these disclosures from the standpoint of how such evidence would have aided and assisted defense counsel in his cross-examination of witness “Ed”, the trial court observed in part:

“. .. . All of these items being so remote in time that they would have afforded little, if any, grounds for impeachment had there been any legitimate way of getting the items admitted in evidence and this Court can think of no legitimate way.”

Having labored through the maze of pertinent motions, orders, occurrences and evidence we now direct our attention to the thrust of defendant’s contentions, i. e., that defendant’s right to a fair trial was violated: (1) by the trial court’s refusal to require the state to disclose the real name and address of the confidential informant and (2) by the trial court’s action in conducting in camera proceedings.

In the present factual context we are presented with a somewhat unusual set of circumstances not heretofore confronted by the Florida courts in attempting to resolve the “informant dilemma”. This court’s attention has not been directed to any Florida case, nor has our research revealed the existence of any Florida decision, involving the partial disclosure of a confidential informant, i. e., where the prosecution permits the informant to be deposed and presented at trial but seeks to protect the real name and address of such informant.

Although this case presents unique facts, the general principles of law relating to the disclosure of the identity of confidential informers are, nonetheless, pertinent and instructive.

In Treverrow v. State, Fla.1967, 194 So. 2d 250, 252, the Supreme Court of Florida set forth the following principles:

“ ‘As to the question when the privilege of nondisclosure applies and when an exception should be made and disclosure required, no "fixed rule * * * is justifiable.’’ Roviaro v. United States (353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639) supra. As the Supreme Court stated in Roviaro:
“The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (Emphasis supplied.) 353 U.S. 53, 62, 77 S.Ct. 628.

“ ‘Other factors which are considered relevant in determining whether disclosure is required are set forth in an annotation on the subject in 76 A.L.R.2d at page 262. Some of the factors are whether it was necessary for the prosecution to refer to the informer in the presentation of the case, or whether the informer’s existence was first brought out on cross-examination by the defendant; whether the informer was an “active participant” in the offense with which the defendant is charged or is a “mere informer” who supplies a “lead”; whether the accused admits or does not deny guilt; and whether there is independent evidence of the accused’s guilt. The foregoing factors are only some of those considered in determining whether the privilege is applicable and is not intended to be all inclusive.’ ”

A precise application of the foregoing factors is somewhat difficult because they contemplate a circumstance where no disclosure was made. Here, the informant was partially disclosed by being physically produced for discovery and for trial purposes. The pertinent consideration in the disclosure of the witness’s real name and address (and his criminal record) is what Treverrow refers to as the “balancing test”, i. e., balancing the public interest in effective law enforcement against the individual’s right to prepare his defense. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The specific circumstances of each case must be carefully examined to ascertain where the proper balance lies. Here, in particular, the court must weigh the significance and relevancy of the disclosure of the informer’s real name and address (and criminal record) to the defense of the accused and to the fair determination of the cause measured against the public interest in protecting the flow of information to law enforcement.

The informer’s privilege, which has long been recognized by the court’s of this country and England, is in reality “the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law”. Roviaro, supra; see also Harrington v. State, Fia.App. 1959, 110 So.2d 495; and United States v. Toombs, 497 F.2d 88, 5 Cir. 1974. The purpose of the privilege is “the furtherance and protection of the public interest in effective law enforcement”. As pointed out in Roviaro, supra, 77 S.Ct. at p. 627:

“. . . The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.”

It is generally recognized that the discovery and prevention of crime would be drastically impeded without the aid of confidential informants, particularly in combating the illegal narcotic traffic. United States v. Day, 384 F.2d 464, 3 Cir. 1967; Harrington, supra. The courts have come to recognize that there is no mandatory right of disclosure, but only a permissive right at the discretion of the court, taking into consideration the public’s interest as balanced by the fundamental requirement of fairness to the accused. Day, supra; Roviaro, supra; United States v. Hurse, 453 F.2d 128, 8 Cir. 1971; Treverrow, supra.

One of the most frequent situations where the “balancing test” has resulted in the disclosure of the confidential informer is where circumstances demonstrated that the confidential informer was not only an active participant in the transaction, but the sole and only participant (other than the accused) and the only witness to the transaction. Ricketts v. State, Fourth District Court of Appeal, 305 So.2d 296 opinion filed December 27, 1974; Roviaro, supra; Hurse, supra; Day, supra; Toombs, supra; United States v. Ferguson, 162 U.S. U.S.App.D.C. 268, 498 F.2d 1001, 1974; United States v. Barnett, 418 F.2d 309, 6 Cir. 1969; see also Monserrate v. State, Fla.App. 1970, 232 So.2d 444; English v. State, Fla.App.1974, 301 So.2d 813. These cases illustrate some of the instances where the interest of the accused’s defense or the fair determination of the cause outweighs the public’s interest in nondisclosure. See United States v. Barnes, 486 F. 2d 776, 8 Cir. 1973.

In applying the "balancing test” it is my opinion that the facts and circumstances of this case do not demonstrate that disclosure of the informant’s real name and address (and his criminal record) prior to or during trial was material to the accused’s defense or essential to a fair determination of the cause. See Jackson v. State, 307 So.2d 188, Third District Court of Appeal Case No. 74 — 1206 opinion filed January 28, 1975.

Nor was such nondisclosure an infringement upon the constitutional rights of the accused. In this regard I am not unmindful of the decision of the United States Supreme Court in Smith v. State of Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), recognizing that the Sixth Amendment guarantees a defendant a right of cross-examination; and that included therein is the right to cross-examine as to the witness’s actual name and address. In Smith the defendant was denied the right to ask the principal prosecution witness his name and address; the Supreme Court held that this limitation of cross-examina-joined in the court’s reversal but were care-of the Sixth Amendment and reversed the conviction. However, as Mr. Justice White (joined by Mr. Justice Marshall) pointed out in a concurring opinion in Smith, “the State gave no reasons justifying the refusal to answer a quite usual and proper question.” For that reason Mr. Justice White and Mr. Justice Marshall joined in the court’s reversal but were careful to point out that the right of cross-examination is not unlimited. As Mr. Justice White stated:

“In Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931), the Court recognized that questions which tend merely to harass, annoy, or humiliate a witness may go beyond the bounds of proper cross-examination. I would place in the same category those inquiries which tend to endanger the personal safety of the witness. But in these situations, if the question asked is one that is normally permissible, the State or the witness should at the very least come forward with some showing of why the witness must be excused from answering the question. The trial judge can then ascertain the interest of the defendant in the answer and exercise an informed discretion in making his ruling. . . .”

The several recent federal decisions subsequent to Smith have recognized the “personal safety of a witness” exception to unlimited cross-examination as enunciated by Mr. Justice White with particular regard to the witness’s name, address and place of employment. In United States v. Palermo, 410 F.2d 468, 7 Cir. 1969, the United States Court of Appeals pointed out that “where there is a threat to the life of the witness, the right of the defendant to have the witness’ true name, address and place of employment is not absolute.” See also United States v. Varelli, 407 F.2d 735, 7 Cir. 1969. In United States v. La Barbera, 463 F.2d 988, 7 Cir. 1972, it was again pointed out, at p. 990:

. . The Smith court reaffirmed the earlier ruling in Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L. Ed. 624 (1931), which initially set the perimeters of cross-examination by imposing a duty on the court to prohibit questions threatening a witness’s Fifth Amendment rights as well as questions which, '. . . go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate [the witness]. . ’ Alford v. United States, at page 693, 51 S.Ct. at page 220. A further exception to unlimited cross-examination is represented by Justice White’s concurring opinion in Smith, as to inquiries which, upon a proper showing, endanger the personal safety of a witness. . . . ”

See also United States v. Smaldone, 484 F.2d 311, 10 Cir. 1973. Our own Fifth Circuit Court of Appeals, in United States v. Alston, 460 F.2d 48, 52 (cert. den. 409 U.S. 871, 93 S.Ct. 200, 34 L.Ed.2d 122) similarly observed:

“ . . . We think that a reasonable interpretation of this area of exception, acknowledged by Smith and Alford, to the usual requirement that the witness divulge background information would include an instance in which the physical safety of the witness or his family might be endangered by disclosure (citations omitted). The spectrum of cross-examination is wide and long but it is not infinite in scope. The trial court must have some authority to armor a witness against extra-judicial weaponry.”

See also United States v. McKinley, 493 F.2d 547, 5 Cir. 1974, and United States v. Ellis, 468 F.2d 638, 9 Cir. 1972.

In the instant case the restriction placed upon cross-examination of the undercover informant as to his real name and address was consistent with the “personal safety” exception enunciated in the United States Supreme Court and federal decisions.

The state represented to the trial court that to reveal the real name and address of “Ed” would be a direct danger to his life and safety and would jeopardize other drug related investigations. The state further contended that to furnish the defendant with information regarding the informant’s criminal record could result in the discovery of the witness’s true identity. The evidence presented to the trial judge supported his determination that “disclosure to the defendants of the witness’s true identity and his address would have involved a substantial risk of physical harm, which would outweigh any disclosure of witness to defense counsel.”

In reaching this conclusion I have not overlooked Rule 3.220(c)(2), which provides

“Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial, or a failure to disclose his identity will infringe the constitutional rights of the accused.”

The rule sets forth two conditions for disclosure: (1) where the informer is to be produced at a hearing or trial, or (2) where a failure to disclose his identity would infringe the constitutional rights of the accused.

The application of the rule depends upon the particular facts and circumstances of each case as measured by the balancing test set forth in Roviaro v. United States, supra, and the requisite “personal safety” limitation enunciated in Smith v. Illinois, supra. While the real identity of the informant was not disclosed in the instant case we are of the opinion that there was substantial compliance with these conditions as reflected by the availability of the informant prior to and during trial and the presentation of the witness for cross-examination except as permissibly limited by the “personal safety” exception.

With respect to the unavailability of the witness’s criminal record because of the representation that such information would lead to the discovery of the witness’s real identity, the trial court carefully considered and evaluated the necessity for disclosing this information in light of its usefulness to defense counsel measured by the potential risk and harm to the witness. In the court’s order denying defendant’s motion for new trial, the court made reference to two felony arrests in 1943 and 1957 and two minor traffic offenses in 1947. The trial court properly concluded that “these items being so remote in time they would have afforded little, if any, grounds for impeachment had there been any legitimate way of getting the items admitted in evidence and this Court can think of no legitimate way.” The recent decision of the First District in this state in Braswell v. State, 306 So.2d 609, filed January 28, 1975, amply supports the trial court’s determination as to the remoteness of the offenses and the discretion vested in the trial court in excluding, for impeachment purposes, convictions remote in time.

It is important to observe that, here, there were no felony convictions or for that matter convictions of any “crime” which might have served as a legitimate basis for impeachment. Prior arrests or accusations of crime have been held to be properly excluded from cross-examination. 35 Fla.Jur., Witnesses, sec. 234. Moreover, a violation of a municipal ordinance has been held not to constitute a “crime” so that a record of conviction of a municipal offense is not admissible to discredit a witness. 35 Fla.Jur., Witnesses, sec. 35. See also Braswell v. State, supra.

Noteworthy is the fact that during defense counsel’s cross-examination of witness “Ed” at trial he was asked whether he had ever been convicted of a crime to which he responded in the negative; even had the withheld information pertinent to the witness’s criminal record been furnished to defense counsel its utilization would have been properly restricted so that further inquiry based on such information zvould have been inappropriate, infra.

Therefore, it was not error for the trial court to refuse to require the state to disclose the witness’s real name and address or his criminal record. Whatever error might have resulted from the inability of defense counsel to have access to the witness’s criminal record would under the facts of this case and as hereinabove indicated be characterized as harmless. More particularly, the testimony of officers Herrera and Chastain, independent of the testimony of the confidential informant, was sufficient to establish delivery of marijuana.

In addition to contending that it was error for the trial court to refuse to disclose the true name and identity of the informer and the existence of any criminal record, defendant questions the propriety of the in camera proceedings conducted by the court. The trial court relied upon Rule 3.220 (i), which provides

“(i) In Camera Proceedings. Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or any portion of such showing to be made in camera. A record shall be made of such proceedings. If the court enters an order granting the relief following a showing in camera, the entire record of such showing shall be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.”

This rule is new and contains subject matter not previously covered by any other rule. I am not aware of any Florida decision interpreting this rule; however, there are several recent federal decisions discussing in camera proceedings in a variety of circumstances which decisions we feel are most helpful and instructive. Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L.Ed.2d 176 (1968) ; Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969); United States v. Danesi, U.S.C.C.D.Conn.1972, 342 F. Supp. 889; United States v. Hurse, supra; United States v. Day, supra; United States v. Jackson, 384 F.2d 825, 3 Cir. 1967; United States v. Toombs, supra. See also Commentary to Standard 4.6, American Bar Association Standards relating to discovery and procedure before trial, October 1970, pp. 204-6.

The federal courts have consistently upheld the validity of in camera proceedings. In United States v. Hurse, supra, the 8th Circuit Court recognized that even an absence of a rule pertaining to in camera proceedings “the courts would have the inherent power to hold an in camera proceeding where the circumstance warrants so that both the informer witness and the public policy in favor of effective law enforcement may be observed while still making a judicial determination of the need for disclosure where essential to a fair trial”. As the court pointed out in United tates v. Day, supra, at p. 470:

“. . . If a court is to impartially balance the conflicting interests it becomes quite evident that to do so requires some knowledge on the part of the judge as to what relevant information the informer actually possesses. But a trial judge is not privy to the activities or cognition of an informer and unless the court is aided by evidence from collateral sources it must indtdge in a judicial guessing game and rule in favor of one interest at the possible expense of the other.” (Emphasis added.)

The very procedure set forth in Fla.R.Cr. P. 3.220(h) was approved in principle in United States v. Jackson, supra, wherein the court observed in part:

. . A record of that in camera session was transcribed and sealed so that only an appellate court would have access to its contents. The advantage of the procedure is that it enables the court to view with a keener perspective the factual circumstances upon which it must rule and attaches to the court’s ruling a more abiding sense of fairness than could otherwise have been realized.”

See also United States v. Danesi, supra. The in camera proceeding is, therefore, a valuable tool to assist the trial judge in fully evaluating the scope of the balance between the public interest and the rights of the defendant. The integrity and correctness of the in camera trial court determination that the identity of a confidential informant ought not to be disclosed is “checked and balanced” by the preparation and preservation of a transcript of the in camera proceedings for later review by the appellate court. United States v. Palermo, supra; United States v. Varelli.

It is recognized that the defendant is placed at a disadvantage by the inability to be present at the in camera proceedings much the same as the disadvantage of not knowing the real name of the confidential informant. Accordingly, a court must be extremely circumspect in conducting an in camera proceeding as prescribed by Rule 3.-220(i) with due regard to the admonitions of Rule 3.220(c)(2), supra, and the principles set forth in Roviaro v. United States, and Smith v. Illinois.

Based upon the specific factual circumstances, I am of the opinion that the trial court did not err in conducting in camera proceedings with respect to the issue of the informant.

However, I would make several specific observations regarding the particular in camera proceedings and the manner in which they were conducted. The first in camera proceeding held on February 6, pursuant to the state’s ex parte motion wherein the state sought to be relieved of the obligation to furnish the real name and address of its informant, was predicated upon an affidavit executed by an assistant state attorney. The affidavit did not contain any matters which we would deem to have been the proper subject of an in camera proceeding inasmuch as the record reveals that the affidavit was in fact later furnished to defense counsel. When it became apparent to the court that the only matters to be brought out at the in camera proceeding were the assertions contained in the affidavit the in camera proceeding should have either terminated or been opened to defense counsel. It must be assumed that nothing else transpired during that proceeding inasmuch as the only item furnished to this court under seal is the affidavit; no other record of the proceeding has been forwarded to this court.

However, I am satisfied that the matters contained in the affidavit (pertaining to the safety of the informant) were of a sufficient nature upon which to predicate an order of nondisclosure; therefore, to the extent that the hearing was conducted in camera I would consider this not to have been harmful to the preparation of defendant’s case.

The other in camera proceeding (which more closely resembles a proceeding Rule 3.220(i) was intended to embrace) was conducted pursuant to defendant’s motion for a new trial. A transcript of the proceedings was properly preserved and transmitted to this court for review. Upon a careful review of that transcript it is my view that the trial court’s decision to relieve the state of the requirement of not disclosing the witness’s real name and address was amply supported by the testimony presented in that proceeding. (See discussion, supra, pertaining to the court’s order denying defendant’s motion for new trial.) It is of concern, however, that this in depth proceeding was conducted after the trial. It would seem more consistent with Rule 3.220(i) and the concept of fairness for such a proceeding to be conducted prior to trial (or during trial where unusual circumstances necessitate) so as to avoid the possibility of discovering that any earlier decision might have been erroneous because it was based upon insufficient information. It would seem somewhat cumbersome to limit disclosure, proceed with trial, and then be confronted with a post trial in camera proceeding which might demonstrate that the nondisclosure was erroneous thereby requiring the grant of a new trial.

Notwithstanding the observations made in Hassberger v. State, supra, the courts have recognized the “personal safety of a witness exception” to unlimited cross-examination; furthermore, our rules of criminal procedure recognize and provide for the conduct of in camera proceedings. In my opinion, the trial court’s decision to permit the informant’s identity to remain undisclosed on the basis of personal safety and the in camera proceedings conducted in connection therewith is amply supported by the particular facts in evidence and the pertinent judicial decisions and rules of judicial procedure.

Our appellate disposition should be par ticularly mindful of the factual circumstances in the case at hand and of the proposition that we should not substitute our judgment for that of the trier of fact; merely because an appellate court might have interpreted the facts differently from that of the trial court does not render the trial court’s determination erroneous when such determination is supported by the evidence.

The determination made by the trial court and the position which is enunciated in this dissenting opinion is not a blanket pronouncement for all times that confidential informants may testify without being identified or that all in camera proceedings will be approved. The import of this decision is the recognition of the existence of certain precedents and principles and the application of those precedents and principles to a specific factual circumstance.

There have been, there are and there will continue to be instances requiring disclosure of the identity as well as the true name and address of a confidential informant just as there have been, there are and will continue to be instances not reqtdring the disclosure of the identity as well as the true name and address of confidential informants. The same will hold true for in camera proceedings.

The instant decision is determined by the instant 'facts. The next decision will be determined by the next set of facts.

A review of the specific factual circumstances in their totality reflects that the defendant’s right to a fair and impartial trial and his ability to properly prepare his defense was not constitutionally impaired.

Having considered all of the points raised by the defendant and being of the opinion that no reversible error has been demonstrated, the judgment appealed from should be affirmed.

Ordered upon Appellee’s October 22, 1975 Petition for Rehearing and alternative application for certification of question of great public interest; the Petition for rehearing is denied, and the application for certification of the following question as one of great public interest is granted:

Can the identity (actual name and address) of a confidential informant be kept secret when the trial court finds (by means of an in camera proceeding on the subject), that the informant’s personal safety is at stake — when that informant appears as a witness in the criminal proceeding?

      . This written statement consisted of an affidavit sworn to by Officer Chastain and apparently was furnished to defense counsel after the ex parte, in camera, proceeding.

      . In the brief filed in this appeal counsel for defendant Grimes stated that the deposition of confidential informant “Ed” was in fact taken on February 15, 1974, but that trial counsel was unsuccessful in ascertaining the real name and address of the confidential informant at the time of said deposition.

      . The record on appeal contains a motion filed by the state seeking to amend the court’s order of March 7 with particular regard to the requirement that the state furnish defense counsel with an “F.B.I. rap sheet”. That motion, although bearing a stamp of the Clerk of the court reflecting that such motion was “filed” on March 20, 1974, which would make it after the court’s March 14 order dealing directly with the F.B.I. rap sheets, was in all likelihood presented to the court on or prior to March 14. This assumption is based on the fact that the court’s order of March 14 makes specific reference to the state “having filed a motion to amend a previous order of this court which was entered on March 7, 1974” and the state’s motion bearing the caption “Motion to Amend Previous Court Order”. The discrepancy between the stamped “filing date” and what seems to have been the day on which the motion was actually presented to the court merits comment and clarification inasmuch as the court’s order of March 14, modifying its order of March 7, was predicated on matters substantially embodied within the state’s motion. Moreover, the appellate brief filed by the defendant refers to the fact that the state’s motion of March 20, 1974, “was never ruled on by the court”. No doubt appellate counsel was as understandably confused as this court about some of the chronology of the preliminary proceedings before the trial court. A reading of the trial court’s order of March 14 can lead to no other conclusion but that the state’s “motion to amend” was actually before and considered by the court prior to the entry of its March 14 order.

      .The state’s motion to amend the order of March 7 also contained the following assertions :
      “(4) That any information contained on a ‘rap sheet’, if one does exist, could he used to discover the true identity of ‘Ed’ and would he a direct danger to Ms life and safety and would further jeopardize other drug related investigations now pending.

      “(5) That information contained in a ‘rap sheet’, if any exists, would only go to the creditability of ‘Ed’ and where previous convictions, if any, are admitted, this point would be moot.”

      . Note, however, that the appellate brief of defendant asserts that counsel “was never furnished with the criminal records of ‘Ed’ ”. It therefore might be assumed that the information pertaining to the existence vel non of “Ed’s” criminal record was not available to defense counsel.

      . There has been considerable difficulty in reconstructing the chronology of the pre-trial events because of the apparent inconsistency between filing dates of motions appearing in the record on appeal and the actual dates on which the court heard such motions (see fn. 3). The problem was somewhat compounded by the fact that neither appellate counsel for the defendant nor counsel for the state participated in the proceeding below. Hopefully, the pertinent chronology as set forth accurately reflects what actually transpired.

      . The testimony of all witnesses begins at p. 14 of the transcript and concludes at p. 196 of the transcript; of the total of 182 pages of testimony 58 pages directly related to witness “Ed” or slightly under one-third of the entire trial testimony.

      . Witness “Ed” refused to describe himself as a “professional paid informant” preferring to be described as a “professional paid investigator”.

      . It is important to note in contrast to the instant case that in Smith, the informant, whose real name and address were withheld, was the only witness to the crucial events giving rise to defendant’s arrest and conviction. The witness entered a restaurant with marked money and emerged with a bag of heroin allegedly purchased from petitioner who testified he had refused to sell the witness the narcotics but another man in the restaurant was believed to have made the sale.

      . We ought not to be concerned with the degree of the witness’s effectiveness in other drug investigations or the degree of the risk and safety to him resulting from the state’s decision to physically produce the witness for trial and the witness’s willingness to appear. This, no doubt, is a determination best left to the wisdom of the agencies and individuals affected. What is of concern and significance is the propriety of the determination of nondisclosure in light of the particular facts, circumstances and considerations.

      . It might be well to note that there is somewhat of a paradox in regard to the burden placed upon the state and the defendant with respect to nondisclosure. The government enjoys the privilege of nondisclosure with the burden placed upon the defendant to demonstrate an exception to this rule (Treverrow v. State, supra), whereas the defendant has the right to cross-examine a witness as to his real name and address with the burden being placed on the state to demonstrate an exception to this rule (United States v. Alston, supra.)

      . The undue length of this dissent is occasioned by the unusual facts and circumstances and novel points involved.


source: Caselaw Access Project

author: MILLS, Judge. BOYER, Chief Judge PER CURIAM. MILLS, Judge

license: Public Domain

text:
    Jack H. BOWEN and Michigan Mutual Liability Company, Appellants, v. Harvey WILLARD, Appellee.
    No. W-431.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1975.
    On Rehearing Oct. 29, 1975.
    Herbert R. Kanning, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellants.
    S. Perry Penland, Jacksonville, for ap-pellee.
   MILLS, Judge.

Appellants-defendants (Bowen and his insurance company) seek reversal of a final judgment in favor of appellee-plaintiff (Willard) rendered on a jury verdict in a personal injury case. The issue raised is whether the trial court erred in denying defendants’ motions for a directed verdict. We are of the opinion it did and reverse.

In a prior appeal by appellee, this court reversed an order of the trial court granting appellants a new trial because the ground granting the new trial was insufficient. Willard v. Bowen et al., 294 So.2d 696 (Fla.App.1974).

Willard sued Bowen, alleging Bowen negligently maintained his building, and negligently failed to warn him of its dangerous condition, as a result of which he was injured. Bowen denied the negligence, and alleged that Willard was con-tributorily negligent. The case went to trial on these issues, and the jury returned its verdict for plaintiff. Bowen then moved the trial court to set aside the verdict of the jury and to enter judgment in favor of defendants, in accordance with defendants’ motions for a directed verdict, or in the alternative, to grant defendants a new trial on the ground that the preponderance of the evidence and the manifest justice of the case required a new trial. The trial court denied the motions for directed verdict, but granted a new trial. On the prior appeal, this court reversed because the ground stated in the order granting a new trial was insufficient. The case was remanded with directions to enter judgment for plaintiff. Defendants now appeal the denial of its motions for directed verdicts.

Plaintiff was an employee of an independent contractor employed by Bowen to repair the roof of his building, which was damaged by fire. The roof and rafters were extensively damaged and were being replaced. The ceiling and joists were only slightly damaged. While working on the roof, Willard stepped onto a scuttle door located in the ceiling and fell through it to the floor. The scuttle door was not designed nor intended to be stood on. It was not defective. It was covered with soot and discolored by smoke. Plaintiff had been in the construction business for twenty years. Bowen was a physician with no experience in building construction. Plaintiff had been working on the roof for eight to ten days before his fall. He worked in the area of the scuttle door on the day prior to his fall. He had inspected the area and thought it safe. Plaintiff recognized that the safest practice was to stand on the ceiling joists. Plaintiff was standing on a joist when he moved backward off it and onto the scuttle door through which he fell to the floor.

It is the duty of a building owner to use reasonable care in maintaining a building in a reasonably safe condition, and to give a business invitee timely notice or warning of latent and concealed perils known to the owner, or which by the exercise of due care should have been known to him, and which are not known by the business invitee, or which by the exercise of due care, could not have been known by him. Hickory House v. Brown, 77 So.2d 249 (Fla.1955).

We are of the opinion that the evidence here fails to establish liability of the defendants for the reason that plaintiff, with twenty years experience in construction, inspected the area at which the scuttle door was located and it appeared safe to him. Bowen, a physician with no construction experience, knew only from observing the ceiling from the floor that a scuttle door was located there. Plaintiff admitted that the scuttle door was not designed to stand on. There was no evidence that it was defective.

Under the above circumstances, the trial court should have granted defendants’ motions for directed verdict.

Reversed and remanded with directions to set aside and vacate the final judgment rendered for plaintiff, and to render a final judgment for defendants.

MELVIN, WOODROW M., Associate Judge, concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I must respectfully dissent. When this case was first before us (Willard v. Bowen, Fla.App. 1st 1974, 294 So.2d 696) we reversed the order of the trial judge granting a new trial based solely upon the phraseology of the order. Although we concluded the opinion in that case with the statement “ * * * the order granting new trial is reversed and the cause is remanded with directions to reinstate the verdict and enter judgment thereon.”, and although such was the provision of the mandate issued by this Court, I am of the view that it was the true intention of the Court, and the better practice, that the case be remanded for the entry of an amended order ruling on the motion for new trial employing the proper words and phrases as alluded to in our said opinion and the cases therein cited. I would now accordingly recede from the final paragraph in this Court’s prior opinion and remand the case to the trial court, affording an opportunity to pass upon the motion for a new trial based upon its merits as distinguished from the technicalities of specific words or phrases.

Should we not recede from and correct that which I conceive to have been an error in choice of wording in the last paragraph of our prior opinion, and consider the case as now before us upon the facts and merits presented, I would affirm the final judgment entered on the verdict of the jury based upon the presumption of correctness thereof in the light of Hickory House v. Brown, Sup.Ct.Fla.1955, 77 So.2d 249 and Tillery v. Standard Sand and Silica Company, Fla.App. 2nd 1969, 226 So.2d 842.

ON PETITION FOR REHEARING GRANTED

PER CURIAM.

Upon consideration of appellee’s timely motion for rehearing, in accordance with our own opinion and mandate in Willard v. Bowen, Fla.App. 1st 1974, 294 So.2d 696, and in the light of Petition of Vermeulen, Fla.App. 1st 1960, 122 So.2d 318, we recede from our foregoing opinion and adhere to our original opinion and mandate in Willard v. Bowen, supra, in which, as aforesaid we directed reinstatement of the verdict and entry of judgment thereon.

It is so ordered and such judgment is

Affirmed.

BOYER, Chief Judge, and MELVIN, WOODROW M., Associate Judge, concur.

MILLS, J., dissents.

MILLS, Judge

(dissenting).

I dissent. I adhere to this court’s opinion filed 18 August 1975.


author: GRIMES, Judge. GRIMES, Judge.

text:
    The CAPE CORAL BANK, a Florida Banking Corporation, as Guardian of the Estate of Loretta Arrowood, Incompetent, Appellant, v. Olivia M. KINNEY, Appellee.
    No. 74-1439.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.
    Rehearing Denied Nov. 26, 1975.

      Fred R. Dudley of Adderly, Aloia & Dudley, Cape Coral, for appellant.
    J. Carl Magaha of Magaha & Fassett, Fort Myers, for appellee.
   GRIMES, Judge.

This is an appeal from a judgment for the defendant, Olivia M. Kinney.

Mrs. Loretta Arrowood, aged 79, had on deposit in her name the sum of $10,646.67 in First Federal Savings and Loan Association of Fort Myers. On January 8, 1971, Mrs. Arrowood, accompanied by Mrs. Kinney, went to the Cape Coral office of First Federal where she closed this account and opened a new one in the name of “Ar-rowood; Loretta C. and/or Kinney; Olivia M. Mrs. as joint tenants with right of survivorship and not as tenants in common.” Several days later Mrs. Arrowood visited her sister-in-law in Cape Coral and asked her to explain the “disappearance” of the money out of her recently closed savings account. The sister-in-law made some inquiries and finally lodged a complaint of possible fraud with the Lee County Sheriff’s Department.

On January 10, 1971, one of the detectives talked to Mrs. Kinney about this. Mrs. Kinney asserted that she was only trying to help Mrs. Arrowood. She said, “To show you I’m not trying to steal the money, here’s the passbook.” Thereupon, the detective delivered the passbook to First Federal.

On January 25, 1971, the Cape Coral Bank was appointed guardian of Mrs. Ar~ rowood’s property based upon a judicial finding that she was mentally incompetent. On February 4, 1971, the bank, as guardian, sent to First Federal a letter requesting withdrawal of all of the monies from the joint account together with an executed withdrawal slip and a copy of the letters of guardianship. Though Mrs. Kinney had not sought to make a withdrawal, First Federal apparently feared a claim in her behalf and refused to pay the money to the bank.

The bank as guardian then filed suit seeking a declaration of its right to the funds in the savings account, joining as defendants first Mrs. Kinney and thereafter First Federal. First Federal filed an interpleader by way of counterclaim and cross-claim and tendered all of the money in the savings account into the registry of the court on February 9, 1973. Mrs. Arro-wood died on February 22, 1974.

For purposes of this appeal, we need not consider the evidence touching upon the questions of fraud, undue influence and mental incompetency. The record reflects that the bank as the duly appointed guardian of Mrs. Arrowood had made a proper request for withdrawal from the savings account at a time when the passbook was in First Federal’s possession. Fla.Stat. § 665.301 (1969). Standing in the shoes of its ward as a joint owner of the account, the bank had the right to withdraw the funds. Fla.Stat. § 665.271 (1969). The request for withdrawal should have been honored by First Federal. The fact that Mrs. Arrowood died three years later does not entitle Mrs. Kinney to the proceeds of the account as her survivor. Had Mrs. Arrowood died soon after the request for withdrawal was denied, a different question might be presented. However, in the interim, the suit for declaratory judgment had been filed, First Federal had filed an interpleader, and the money had been removed from the account and placed in the registry of the court. The issues were drawn concerning the bank’s authority to withdraw long before Mrs. Arrowood died.

The judgment is reversed and the case is remanded for further proceedings consistent herewith.

BOARDMAN, A. C. J., and SCHEB, J., concur.

ON PETITION FOR REHEARING

GRIMES, Judge.

Mrs. Kinney has filed a petition for rehearing in which she complains that our opinion appears to reach certain conclusions concerning the evidence which would constitute the law of the case and thereby prevent her from introducing evidence in her behalf. She correctly states that the judgment on appeal was entered upon a motion for involuntary dismissal under RCP 1.420(b), so Mrs. Kinney was never called upon to present her side of the case. This was the reason why we remanded the case for further proceedings rather than directing the entry of a final judgment for the bank.

By the manner in which this case was argued by both parties, there was never any intimation that further evidence might be available upon the issues involved. Nevertheless, we wish to make clear that the conclusions of law reached in our opinion are predicated upon the assumption that the facts set forth therein are correct. Our opinion should not be construed as prohibiting Mrs. Kinney from attempting to disprove these facts or to present such other evidence as would have been proper had the motion for dismissal not been granted.

Petition denied.

BOARDMAN, A. C. J., and SCHEB, J., concur.


author: PER CURIAM. MILLS, Judge

text:
    James Taylor STOUTAMIRE, Appellant, v. Anna Mae STOUTAMIRE, a/k/a Ann M. Stoutamire, Appellee.
    No. W-514.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1975.
    Rehearing Denied Dec. 2, 1975.

      Charles S. Isler, Jr., Isler, Higby, Brown & Smoak, Panama City, for appellant.
    Robert B. Staats, Staats & Nabors, Panama City, for appellee.
   PER CURIAM.

We have considered the record, briefs and oral argument of counsel and find no error in the trial court’s award to appellee of lump sum alimony consisting of residential property and also which included the requirement that appellant retire the mortgage indebtedness thereon. We also find no error in the trial court’s award to appellee of a special equity in other real property of appellant resulting from improvements made thereon during the thirty-six year marriage of the parties.

McCORD, Acting C. J., and WILLIS, BEN C., Associate Judge, concur.

MILLS, J., dissents.

MILLS, Judge

(dissenting).

I would reverse the trial court’s award of lump sum alimony and special equity to appellee. In my opinion, appellee failed to prove the need for lump sum alimony, failed to prove the ability of appellant to pay lump sum alimony, and failed to prove a special equity.


author: PER CURIAM.

text:
    EDWIN K. WILLIAMS & CO.-EAST, doing business as Marcoin Management Services, Appellant, v. James O. HUSTAD and Joan Hustad, Appellees.
    No. 74-1251.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 18, 1975.
    See also Fla.App., 321 So.2d 601.

      John K. Aurell and James T. Schoen-brod of Aurell & Huck, P. A., Miami, for appellant.
    John A. Gentry, III, of Moyle, Gentry, Jones & Flanigan, P. A., West Palm Beach, for appellees.
   PER CURIAM.

Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we determine that the trial court erred in entering final judgment in the sum of $30,000 for the appellees/counter-plaintiffs, James 0. Hustad and Joan Hustad.

The evidence in the record does not support the jury’s verdict in its assessment of damages. The counter-plaintiffs failed to carry forth the burden of proving future damages with reasonable certainty. Butler v. Mirabelli, 179 So.2d 868 (Fla.App.1965). There was no competent proof as to the amount of actual loss, and the evidence proffered on the question of damages was too speculative, conjectural and vague to allow the jury any reasonable basis on which to make such award. Florida Ventilated Awning Co. v. Dickson, 67 So.2d 215 (Fla.1953).

Accordingly, the judgment appealed is reversed and the cause remanded for a new trial only as to damages.

Reversed and remanded.

WALDEN, C. J., and CROSS and OWEN, JJ., concur.


author: OWEN, Judge.

text:
    James O. HUSTAD and Joan M. Hustad, Appellants, v. EDWIN K. WILLIAMS & CO.—EAST, doing business as Marcoin Management Services, Appellee.
    No. 74-1264.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Rehearing Denied Dec. 3, 1976.

      John A. Gentry, III of Moyle, Gentry, Jones & Flanigan, P.A., West Palm Beach, for appellants.
    James T. Schoenbrod of Aurell & Huck, P.A., Miami, and William B. Le Cates of Carlisle & Tworoger, Fort Lauderdale, for appellee.
   OWEN, Judge.

Appellee, the franchisor under a certain franchise agreement, sued appellants, the franchisees, alleging the latter’s default and seeking specific performance of certain "buy out” and “noncompete” provisions of the agreement. Appellants counterclaimed alleging that it was the franchisor who had defaulted and seeking monetary damages resulting from such alleged breach. The counterclaim was severed and tried to a jury on the issues of whether the franchisor breached the agreement and, if so, the amount of franchisees’ damages resulting therefrom. The jury resolved these issues favorably to the franchisees, awarding $30,000 damages. The judgment entered thereon was subsequently appealed to this court.

Subsequent to entry of the aforesaid judgment in favor of the Hustads, they moved for dismissal of the complaint for specific performance, or alternatively, for summary final judgment on the complaint. The franchisor also moved for summary final judgment. The court entered an order denying both motions. The franchisees filed this interlocutory appeal assigning as error the denial of their motion, and the franchisor filed a cross-assignment of error directed to the same order contending that the court erred in denying its motion. Both parties contend before this court that there are no genuine issues of material fact and that the only issue is one of law.

The franchise agreement expressly provides in paragraph 16 thereof for the rights and duties of the respective parties upon termination under various conditions. Material here is subparagraph 16(C) entitled “Termination by Default”, and subpar-agraph 16(D) entitled “Restrictive Covenant”. Paraphrased, 16(C) provides that if the agreement is terminated by the Hus-tads on account of the franchisor’s breach, the franchisor shall have first refusal to purchase, and the Hustads shall sell to franchisor, all of the Hustads’ accounts and good will of their business at a specified purchase price, and subparagraph 16(D) provides that upon termination of the agreement for any reason the Hustads will not, for a period of three years following termination, compete with the franchisor by carrying on a like business within the franchise territory.

The Hustads contend that appellee’s breach was of a dependent covenant, and that under the principles set out in the case of Steak House, Inc. v. Barnett, 65 So.2d 736 (Fla.1953) such breach “destroyed the entire contract,” thereby relieving the Hus-tads of any further obligation or liability to comply with the requirements of subpar-agraphs 16(C) and 16(D). Such a position is not tenable under the facts of this case.

The breach of a dependent covenant gives the injured party the right to rescind the contract, or to treat it as broken and to recover damages for a total breach. Steak House, Inc. v. Barnett, supra; Mabry Corporation v. Dobry, 141 So..2d 335 (2nd DCA Fla. 1962); 17A C.J. S. Contracts § 425 (1963). The injured party must, however, elect between these two remedies as they are mutually exclusive. Weeke v. Reeve, 65 Fla. 374, 61 So. 749 (1913); Deemer v. Hallett Pontiac, Inc., 288 So.2d 526 (3rd DCA Fla. 1974); Owens v. Smith, 154 So.2d 878 (1st DCA Fla.1963). If the contract is rescinded, it is as though it had never existed, but if the remedy sought is damages for its breach the injured party necessarily thereby recognizes and affirms the initial validity and enforceability of the contract. Even though the breach terminates the contract so that the injured party is no longer obligated to perform that which was to be performed in consideration of the contract, those provisions thereof which, in contemplation of the very breach that occurred, expressly provide for the rights and duties of the respective parties upon termination, should be given effect. Otherwise, such provisions would be totally meaningless.

The Hustads also contend that the agreement is invalid and unenforceable because it lacks mutuality of obligation, lacks mutuality of remedy, and is inequitable, unconscionable, oppressive, adhesive and contrary to sound public policy in that it allows the franchisor, by its own breach, not only to put the Hustads out of their present business through the “buy out” provision, but also to prevent them from engaging in a like business through the “noncompete” provision. Had the Hustads sought the equitable remedy of rescission as they might have, these arguments would most likely be attractive to a court of equity. However, they elected to affirm the validity of the agreement by successfully pursuing their counterclaim for damages and they may not now disaffirm the agreement. See cases cited, supra.

The contract terms are clear and unambiguous. They provide for the rights and duties of the respective parties upon termination (which all parties agree has occurred). There is no legal reason why the termination provisions of the agreement cannot now be specifically enforced. The order appealed is reversed and this cause remanded for further proceedings in accordance herewith.

Reversed and remanded.

CROSS and DOWNEY, JJ., concur.

      . See, Edwin K. Williams & Co. — East v. Hustad, 4th DCA Fla., 321 So.2d 600, 1975.


author: BOYER, Judge.

text:
    BROWARD COUNTY, a political Subdivision of the State of Florida, Petitioner, v. The ADMINISTRATION COMMISSION of the State of Florida and Edward J. Stack, Sheriff of Broward County, Respondents.
    No. X-287.
    District Court of Appeal of Florida, First District.
    March 5, 1975.
    William J. Roberts and Wilson W. Wright, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Asst. Atty. Gen., Harry R. Steinhardt, Ft. Lauderdale, and Clinton H. Coulter, Jr., Tallahassee, for respondents.
   BOYER, Judge.

This case is before us on petition for writ of ceriorari by which this Court is requested to review and quash a final decision of the Administration Commission of the State of Florida in which the Commission approved a budget for the Sheriff of Broward County in excess of the budget earlier unanimously approved by the Board of County Commissioners and later sustained by the State Board of Administration, prior to reversal by the Administration Commission.

Following the reversal order by the Administration Commission petitioner here moved for a rehearing which was denied. Petition for writ of certiorari was filed in this Court within 30 days after the denial of the motion for rehearing but more than 30 days following the reversal order of which rehearing was sought. Respondents now move to dismiss the petition for writ of certiorari, alleging that the order of the Administration Commission was final when entered (F.S. 30.49(5) ) and that there is no provision for a motion for rehearing, concluding therefore that the petition for writ of certiorari in this Court was not timely filed and that we are accordingly without jurisdiction to entertain same.

The Administration Commission is a creature of statute (F.S. 20.31). That Commission has failed to adopt rules as required by its creating statute. (F.S.A. 20.-31(2) )

F.S. 120.021 and F.S. 120.21 defines the term “agency” as used in that chapter to mean, among other things, a commission. It appears therefore, and we hold, that the legislature intended for Chapter 120 Florida Statutes to be applicable to the Administration Commission.

F.S. 120.22 provides for hearings for all parties (unless waived or otherwise provided by law) and F.S. 120.26(4) clearly contemplates provision for a motion for rehearing.

Chapter 120 Florida Statutes, the Administrative Procedure Act, being applicable to the proceedings giving rise to the case sub judice, and that chapter contemplating a hearing and opportunity to seek a rehearing (by submission of exceptions), it follows that the motion for rehearing tolled the time for the filing of the petition for writ of certiorari in this Court. Accordingly, the motion to dismiss must be, and is, denied.

The respondents’ motion to quash, based essentially upon the same allegations as those set forth in the motion to dismiss, is also denied.

The respondents have also moved this Court to issue an order pursuant to Rule 5.12 F.A.R. requiring petitioner to post a bond. That motion is denied.

Respondents have filed an additional motion to expedite this cause. That motion is granted. It appearing that the petitioner filed herein its brief on January 20, 1975, respondents are allowed ten (10) days from date hereof within which to file their brief and petitioner is allowed five (5) days from date of receipt of a copy of respondents’ brief within which to file petitioner’s icply brief.

It is so ordered.

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


author: McCORD, Judge. BOYER, Judge

text:
    BROWARD COUNTY, a political subdivision of the State of Florida, Petitioner, v. The ADMINISTRATION COMMISSION of the State of Florida and Edward J. Stack, Sheriff of Broward County, Respondents.
    No. X-287.
    District Court of Appeal of Florida, First District.
    May 6, 1975.

      William J. Roberts and Wilson W. Wright, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Asst. Atty. Gen., Harry R. Steinhardt, Fort Lauderdale, Clinton H. Coulter and Jack M. Skelding, Jr., Tallahassee, for respondents.
   McCORD, Judge.

Petitioner seeks certiorari from final action of the Administration Commission in relation to the budget of respondent Sheriff of Broward County. The administrative proceedings leading up to the petition for certiorari were pursuant to § 30.49, Florida Statutes, as amended by Chapter 74 — 103, Laws of Florida, 1974, which became effective on July 1, 1974. That section relates to the fixing of the budget of the sheriff in each of the respective counties and provides for review of the approval of a sheriff’s budget by the Board of County Commissioners or the Budget Commission as the case may be. It provides that within 30 days after receiving written notice of the action of the Board or Commission, the sheriff may file an appeal to the Administration Commission and it further provides as follows:

“ . . . Such appeal shall be by petition to the Administration Commission, which petition shall set forth the budget proposed by the sheriff in the form and manner prescribed by the Department of Administration and approved by the Administration Commission and the budget as approved by the board of county commissioners or the budget commission, as the case may be, and shall contain the reasons or grounds for the appeal
“(5) Upon receipt of the petition, the secretary of administration- shall provide for a budget hearing at which the matters presented in the petition and the reply shall be considered. A report of the findings and recommendations of the department thereon shall be promptly submitted to the Administration Commission, which, within 30 days, shall either approve the action of the board or commission as to each separate item, or approve the budget as proposed by the sheriff as to each separate item, or amend or modify said budget as to each separate item within the limits of the proposed expenditures and the expenditures as approved by the board of county commissioners or the budget commission, as the case may be. The budget as approved, amended, or modified by the Administration Commission shall be final.”

Respondent sheriff submitted a proposed budget to the petitioner county commission requesting $8,776,147. After hearings, petitioner approved a budget for respondent sheriff in the amount of $7,574,156. Respondent sheriff then appealed the action to the “Department of Administration.” A hearing was held by the Department and it concluded that respondent sheriff’s budget should be as fixed by the petitioner county commission. The appeal then went to the Administration Commission which is composed of the Governor and the Cabinet and after hearing, it increased respondent sheriff’s budget by $1,056,038.

Under the old Administrative Procedure Act, Chapter 120, Florida Statutes, which was superseded by the new Administrative Procedure Act, Chapter 74-310, Laws of Florida, 1974, (which became effective January 1, 1975) this court construed the statute to mean that it only had authority to review quasi-judicial administrative orders on certiorari. Bay National Bank and Trust Company v. Dickinson, Fla.App. (1st), 229 So.2d 302. § 120.31, Florida Statutes, 1973, provided:

“(1) As an alternative procedure for judicial review, and except where appellate review is now made directly by the supreme court, the final orders of an agency entered in any agency proceedings, or in the exercise of any judicial or quasi-judicial authority, shall be reviewable by certiorari by the district courts of appeal within the time and manner prescribed by the Florida appellate rules.”

That section, however, was repealed by the new Administrative Procedure Act, which became effective January 1, 1975, as aforesaid. This new law does not contain the limitation that this court review only orders entered in the exercise of any judicial or quasi-judicial authority. § 120.68 of the new law provides in part as follows:

“(1) A party who is adversely affected by final agency action is entitled to judicial review.
(2) Except in matters for which judicial review by the supreme court is provided by law, all proceedings for review shall be instituted by filing a petition in the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida appellate rules.”

The action of the Administration Commission in the case sub judice is executive, quasi-executive, or perhaps to some degree quasi-legislative in nature rather than quasi-judicial. The fixing of budgets by its basic nature is not a quasi-judicial function. (The hearing before the Administration Commission merely gave interested persons an opportunity to present facts and argument to assist the Administration Commission in its budget determination and was not a hearing of an adversary nature.) Thus, in spite of our previously having entertained a petition for certiorari in a case of this nature (see Weaver v. Heidtman, Fla.App. (1st), 245 So.2d 295), it does not appear that certiorari was the proper method of review under the old Administrative Procedure Act. It now appears, however, that under the new act a petition for review to the District Court of Appeal is the method of such review.

The old Administrative Procedure Act, which was enacted in 1961, established statutory certiorari review of judicial or quasi-judicial final agency action. Prior to statutory certiorari, the court reviewed judicial or quasi-judicial final action of inferior tribunals by common law certiorari. Justice Campbell Thornal discussed the problem of appropriate review of orders of administrative agencies in De Groot v. Sheffield, Fla., 95 So.2d 912 (1957), an opinion rendered prior to enactment of the Administrative Procedure Act. Speaking for the Supreme Court he said:

“We are here squarely confronted with the problem of determining the appropriate procedure for obtaining review of an order of an administrative agency. Although administrative agencies have been known to the law for many years, it has only been within fairly recent years that a substantial body of jurisprudence has developed with reference to so-called ‘administrative law.’ Because of the expansion of the number of boards, commissions, bureaus and officials having authority to make orders or determinations which directly affect both public and private rights, there has been an increasing number of cases involving the extent of the authority of these agencies as well as the validity or correctness of their conclusions in particular instances. We are told that in our state government there are over one hundred boards, bureaus and officials engaged in administrative activities affecting the rights and property of individuals as well as the public. See French’s Research in Florida Law, p. 54; 1 Florida Law and Practice, Administrative Law, Sec. 30. In addition there are innumerable county and city boards and agencies such as Civil Service Boards and other boards that perform similar functions.
Although over the years many cases in one form or another have come to this court involving the correctness of orders of administrative agencies, we are unaware of any that has squarely and directly raised the problems presented by the instant appeal. Despite the local nature of the particular problem at hand, it appears to us that it is appropriate to undertake to reconcile many of our previous apparently divergent opinions in an effort to establish for the future some orderly procedure in disposing of problems of this nature. We do this also in fairness to the trial judge who undoubtedly was confronted with some of these conflicting viewpoints but who did not have available the opportunity for detailed research that accompanies appellate review. Nonetheless, as pointed out by Kenneth Culp Davis in 44 Illinois Law Review p. 565, ‘No branch of administrative law is more seriously in need of reform than the law concerning methods of judicial review.’ This author then observes, ‘No other branch is so easy to reform.’ The reviewability of an administrative order depends on whether the function of the agency involved is judicial or quasi-judicial in which event its orders are reviewable or on the contrary whether the function of the agency is executive in which event its decisions are not reviewable by the courts except on the sole ground of lack of jurisdiction. In the latter event the order is, of course, subject to direct or collateral attack.
It is in some measure insisted in the case before us that the decision of the Civil Service Board is beyond the scope of judicial review. The contention to this end is that the ultimate decision of the Board is executive in nature and beyond the reach of the courts.”

The Court then determined the order to be quasi-judicial and not purely executive since removal of the public employee was accomplished after notice and hearing based upon the evidence presented at such hearing. (The hearing was adversary in nature.) The Supreme Court went on to say:

“Having determined the nature of the order under consideration we next proceed to ascertain the appropriate method of obtaining review as well as the scope of review available. It must be conceded that over the years orders of administrative agencies have been placed under scrutiny in Florida in both mandamus and certiorari cases. Admittedly, little attention has been given to the propriety of the procedure in particular cases.
Hence the resultant confusion. We interpolate that we pretermit in this instance any discussion of the proper use of the equity injunction and the writ of prohibition. Injunction has been many times employed to assault legislative action at the state and local level where such action allegedly impinged on some constitutional right. Attacks on municipal zoning ordinances are typical. Prohibition has at times been employed as against quasi-judicial action of administrative agencies where the agency proposed to exceed its jurisdiction or exercise jurisdiction which it did not have.
We further mention that we are discussing herewith appellate review in situations where applicable statutes fail to provide specific methods of review as was the case here. When the statute provides the appellate procedure, that course should be followed. Curry v. Shields, Fla.1952, 61 So.2d 326, 327; State ex rel. Coleman v. Simmons, Fla.1957, 92 So.2d 257.” (Emphasis supplied)

Inasmuch as the new Administrative Procedure Act provides that all proceedings for review of administrative agency action (except those going to the Supreme Court) shall be instituted by filing a petition in the District Court of Appeal, it appears that such is the method now to be followed regardless of the nature of the administrative action.

Since the effective date of Chapter 74-103, Laws of Florida, 1974, which amended § 30.49, Florida Statutes, the review of sheriffs’ budgets as fixed by a board of county commissioners or budget commission is to the Administration Commission. In the case sub judice, the hearing by the Department of Administration and its action must be considered as only advisory to the Administration Commission and it was not bound in any way by the action of the Department of Administration. § 30.49(5), Florida Statutes, 1974, provides:

“Upon receipt of the petition, the secretary of administration shall provide for a budget hearing at which the matters presented in the petition and the reply shall be considered. A report of the findings and recommendations of the department thereon shall be promptly submitted to the Administration Commission, which, within 30 days, shall either approve the action of the board or commission as to each separate item, or approve the budget as proposed by the sheriff as to each separate item, or amend or modify said budget as, to each separate item within the limits of the proposed expenditures and the expenditures as approved by the board of county commissioners or the budget commission, as the case may be. The budget as approved, amended, or modified by the Administration Commission shall be final.” (emphasis supplied)

We can only interpret the last sentence of the above statute to mean that the Legislature intended the action of the Administration Commission to be final. Regardless of the method of review, the court exercises a more limited review of quasi-executive or quasi-legislative action than of quasi-judicial action. In Bay National Bank and Trust Company v. Dickinson, supra, this court, in reference to the old Administrative Procedure Act, said:

“ . . . The Act has no application to an agency order rendered in the performance of a quasi-executive or quasi-legislative function in which legal rights, duties, privileges, or immunities are not the subject of adjudication. Such orders as this are rendered pursuant to statutory authority based upon required inquiry and investigation, and involve the exercise of a discretion by the administrative officer or agency rendering it. If quasi-executive or quasi-legislative acts are performed in violation of the mandatory requirements of law, or are infected by fraudulent, capricious, or arbitrary action of the agency, they are subject to assault by appropriate proceedings in court of competent jurisdiction.

Upon consideration of the record in this cause and the briefs and arguments of counsel, we find no departure by the Administration Commission from the essential requirements of law. We further find no merit to petitioner’s contentions that § 30.49, Florida Statutes, is unconstitutional. See Weaver v. Heidtman, Fla. App. (1st), 245 So.2d 295.

Petition for review dismissed.

RAWLS, C. J., concurs.

BOYER, J., concurring specially.

BOYER, Judge

(concurring specially).

I concur that the contention that F.S. 30.49 is unconstitutional is without merit and I further concur in dismissal of the petition for review.


author: HAVERFIELD, Judge.

text:
    Charles W. MADDOX et al., Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    Nos. 74-1276, 74-1277.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Rehearing Denied Nov. 19, 1975.

      Eugene P. Spellman, Miami, for appellants.
    Stuart Simon, County Atty., and R. A. Cuevas, Jr., Asst. County Atty., for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

This is an appeal by members of certain classes of employees of the Department of Public Safety of Dade County from an adverse summary judgment denying compensation for certain overtime claims.

In 1967 appellants filed a class action against Metropolitan Dade County seeking adjudication as to whether the county must pay overtime as it accrues and whether police sergeants in the Department of Public Safety were entitled to overtime pay at all. The court determined that the employees of the Public Safety Department were entitled to be paid for overtime at such time as same accrues, and the police sergeants were entitled to overtime compensation from June 8, 1966. The court ordered an accounting for all sums due. Dade County appealed and this court affirmed. Metropolitan Dade County v. Maddox, Fla.App. 1970, 242 So.2d 165. After certiorari was denied by the Florida Supreme Court, 246 So.2d 786 (Fla.App., 1971), the parties entered into a stipulation which read in pertinent part:

******
“4. In all general areas involving time accumulated by employees of the class, where such time is the subject of conflict between plaintiff and defendant as to its eligibility, the auditor will account for such time separately and present the accounting to the Circuit Court Judge together with such findings of fact as are gleaned from evidence before him. Determination of eligibility for such time will be made by the Court after hearing all arguments pertaining to the facts.
******
“13. It is understood that the basic document for the accounting will be the County’s Unit Time Sheet and such other documents as are available for determining net accumulated overtime, and that the plaintiff class at its own consideration, shall have the right to employ an auditor of its choice to review the methods of auditing employed by the independent auditors herein named and that upon request of the plaintiffs, any ■ and all records employed in the audit will be made available to said plaintiffs’ auditor.”
******

This stipulation set August 15, 1971 as the date for the submission of the final audit. Employees were given until December 20 to file written notice of appeal with respect to alleged overtime not considered in the audit. Employees filed an appeal listing six general items labeled A-F, which contended that various employees had worked in excess of the standard 40 hour week and the overtime was not reflected in the audit. The trial judge found, with the exception of item D, various members of the class did, in fact, work beyond the normal 40 hour week, but credit for same was never requested although a prescribed procedure for claiming and requesting overtime was in existence; and, therefore, employees were guilty of laches precluding their recovery of such sums and an accounting as to those issues. Summary final judgment with the exception of item D was granted in favor of Dade County. This appeal ensued.

Appellants primarily argue that the trial court erred in finding plaintiffs guilty of laches precluding their recovery. We find merit in this contention.

In the first appeal before this court, Metropolitan Dade County v. Maddox, supra, one of the issues raised was whether the trial court erred in finding that laches defeated claims by the police sergeants for accumulated overtime one year prior to the institution of the suit where the police sergeants did not assert their claims. We affirmed and held the trial judge correct in following the maxim that equity follows the law and limits any claim for overtime to one year prior to the institution of the subject lawsuit. See Metropolitan Dade County v. Maddox, supra 169-170.

Therefore, appellants should be entitled to recovery on the claims contained in items A, B, C, E and F for one year prior to the filing of the written notice of appeal on December 20. To hold otherwise would reach an inconsistent result with our af-firmance in the first appeal. However, any claim for overtime compensation must be determined by available documents in accordance with the stipulation agreement.

The summary judgment appealed is modified to allow the claims contained in items A, B, C, E and F for accumulated overtime one year prior to the filing of the December notice of appeal.

Affirmed as modified.


author: McNULTY, Chief Judge.

text:
    Howard P. HORTON, owner of H & H Construction Co., an unincorporated company, Appellant, v. Thomas M. O’ROURKE, Sr., et ux., et al., Appellees.
    Nos. 74-1267—74-1270.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
    Patrick J. Murphy of Crabtree, Butler, Syprett & Meshad, Sarasota, for appellant.
    Frank Clark, III, Titusville, for appel-lees.
   McNULTY, Chief Judge.

Appellant Howard P. Horton, individually and as owner of H & H Construction Company, appeals from a final judgment awarding compensatory damages for breach of four land sale contracts due to an unmarketable title. We reverse.

The operative facts are simply stated. Between March 3, 1972 and May 3, 1972, the four appellee families executed written contracts with H & H Construction Company to purchase homes being constructed on land owned by appellee Overlord Investments, Inc. Upon completion of the homes in the summer of 1972, the families took possession without closing, under rental agreements ranging from $90 to $135 per month. Closing was conditioned upon clearance of all outstanding title defects.

Upon taking possession, the purchasers-lessees received a notice of the existence of a Federal Tax Lien encumbering the property in excess of $94,000. After receiving several assurances that the lien would soon be removed, they made improvements and continued the rental agreement for 22 months. But on March 15, 1974, appellant notified the purchasers in writing that clearance of the defect was impossible. Appellant offered either to return the earnest money deposits or enter into new rental agreements at a higher rate.

Thereafter, on April 15, 1974, appellee Overlord Investments, Inc., record title holder of the land, brought suit to oust each purchaser. After answering, the purchasers-appellees filed individual suits for specific performance against both Overlord Investments and appellant, alleging a principal-agent relationship, which resulted in this appeal.

Following a non-jury trial on the four consolidated cases, a final judgment was rendered denying specific performance, exonerating Overlord from any obligation to purchasers-appellees and awarding the purchasers pecuniary damages against appellant. In arriving at the amount of such damages, the court applied the standard measure of contract damages whereby a purchaser ordinarily receives the benefit of his bargain, measured by the court in this case by the difference between the value of the land when it should have been conveyed less the contract price as yet unpaid.

In the one meritorious point on appeal, appellant contends that application of this standard measure of damages giving purchasers in a land sale contract the benefit of their bargain is error in the absence of a showing of bad faith. We agree.

In Florida and many other jurisdictions , the courts follow the English rule announced in Flureau v. Thornhill whereby in the absence of bad faith the damages recoverable for breach by the vendor of an executory contract to convey title to real estate are the purchase money paid by the purchaser together with interest and expenses of investigating title. Lest there be unjust enrichment, under the facts in this case, we would add to that here the cost of improvements made by purchasers in contemplation of the conveyance, with the express or implied approval of the vendor, which inure to the benefit of the vendor.

Appellees’ reliance on A. J. Richey Corp. v. Garvey as authority to the contrary is misplaced in that, in that case, there was clearly a lack of good faith. Here, there is no suggestion of bad faith on appellant’s part. Indeed, the record reveals that he dealt above board, made every effort and went to considerable expense to clear the title defect and to consummate ultimately the contract to convey. In sum, there is not a scintilla of evidence to establish bad faith even if it were alleged or otherwise put in issue; the undisputed evidence is to the contrary.

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

GRIMES and SCHEB, JJ., concur.

      . See Gassner v. Lockett (Fla.1958), 101 So.2d 33; Liberis v. Carmeris (1933), 107 Fla. 352, 146 So. 220; Key v. Alexander (1926), 91 Fla. 975, 108 So. 883; Southern Realty and Utilities Corp. v. Gettleman (Fla.App.3d, 1967), 197 So.2d 30; Resnick v. Goldman (Fla.App.3d, 1961), 133 So.2d 770 ; 33 Fla. Jur. Vendor and Purchaser § 173 (1960).

      . 77 Am.Jur.2d Vendor and Purchaser § 522 (1975) ; 5 A. Corbin Contracts § 1097 (1964).

      . 2 W.B1.1078 (1776).

      . (1938), 132 Fla. 602, 182 So. 216.


text:
    FORD MOTOR COMPANY, etc., Appellant, v. Lee BERGER, etc., et al., Appellees.
    No. 74-749.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Rehearing Denied Dec. 1, 1975.
    Dixon, Dixon, Lane & Mitchell, Miami, for appellant.
    Rentz, McClellan & Haggard, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, defendant in the trial court, seeks review of an order granting a new trial.

Lee Berger, plaintiff in the trial court and appellee herein, instituted the present action against the defendant-appellant, Ford Motor Company, for injuries sustained as a result of an accident wherein plaintiff was struck and injured by a 1970 Ford Maverick automobile manufactured and sold by Ford. The basis of Ford’s liability was the alleged negligent manufacture or inspection by Ford Motor Company of the master brake cylinder of the subject automobile causing the brakes to fail or, in the alternative, that the defendant Ford breached its implied warranty of the fitness thereof. In response Ford answered and stated as an affirmative defense that the proximate cause of the accident was the negligence of the driver of the automobile over whom Ford had no control.

The case was tried before a jury which returned a verdict in favor of Ford Motor Company. Plaintiff moved for a new trial and the trial judge entered an order granting the motion which reads in pertinent part:

“Having been the trial judge and having heard and considered all the evidence adduced in this five day jury trial and having been in the position to and having made first hand observation of the jury and the witnesses and the evidence adduced during the course of the trial, I am of the opinion that a verdict for FORD MOTOR COMPANY was clearly against the manifest weight of the evidence. Indeed it is clear that negligence and/or a breach of implied warranty on the part of the Defendant, FORD MOTOR COMPANY, was a contributing cause to this accident and to the grievous injuries sustained by the minor Plaintiff, LEE BERGER. The jury verdict cannot stand and a new trial must be and it is hereby Ordered. Therefore it is
ORDERED and ADJUDGED:
“That the Plaintiffs’ Motion for New Trial be and the same is hereby granted.”

Defendant Ford appeals therefrom. We affirm.

We find the following holding in Cloud v. Fallis, Fla. 1959, 110 So.2d 669, 673 dis-positive of the case sub judice:

* * * * He *
“[3] The burden to make error clearly appear is on the appellant. Although when such an attempt is made the record must be examined by the appellate court, the assailant cannot content himself simply to submit the record and expect the order to be upset if the reviewing body finds, in cold type without benefit of any of the circumstances known to the trial judge, and never to be known to the appellate court, that there appears to be some ‘substantial competent evidence’ supporting the verdict.”
******

Although appellant has demonstrated that there is some substantial evidence in the record to support the jury’s verdict, we conclude appellant has not carried its burden of demonstrating that the trial judge clearly abused his sound, broad discretion in granting a new trial. If the trial court determines that the verdict does not comport with the manifest weight of the evidence and the substantial justice of this case, it becomes the duty of the court to grant a new trial. See Cloud v. Fallis, supra.

Accordingly, the order granting a new trial herein appealed is affirmed.

Affirmed.


text:
    CITY OF CORAL GABLES, a Municipal Corporation of Florida, Appellant, v. E. F. P. BRIGHAM, Appellee.
    No. 74-1465.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Rehearing Denied Dec. 3, 1975.

      Charles H. Spooner, City Atty., and Robert D. Zahner, Asst. City Atty., for appellant.
    Sinclair, Louis & Siegel, Brigham & Brigham, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The City of Coral Gables appeals from a summary judgment allowing E. F. P. Brigham to keep a tool shed on his residential property, which had been prohibited by the City. Brigham cross-appeals because the trial judge did not declare two sections of the Zoning Code of the City to be unconstitutional, as he had requested. From the record, it appears that Brigham had had a tool shed in the backyard of his single family home for twenty years. He saw a Sears Roebuck advertisement for a 9/ x 9' x 6' “All Aluminum Metro Approved Lawn Building”; he purchased and installed it as a replacement for his original shed. The City sent a “Notice of Violation” for “maintaining a shed which is prohibited * * * Requirements for Correction: REMOVE”. By letter, Brigham requested a permit from ' the Building Department and enclosed a check. The City returned the check, reiterated that the shed was “prohibited”, and demanded its removal within five days. Brigham appealed to the Zoning Board and the City Commission, but found no relief. He sued in circuit court and won a summary judgment permitting him “to have and maintain his small utility shed or tool house on his property as an accessory use under the Zoning Code of the City of Coral Gables”. Brigham had also sought to have § 11.07 [requiring building permits] and § 11.03 [requiring approval of a Board of Architects] of the Code declared unconstitutional. The trial judge did not do so. The City appealed and Brigham cross-appealed.

The appellant contends the trial judge erred in entering a summary final judgment allowing Brigham to have and maintain a utility shed as an accessory use under the City Zoning Code. We reverse.

It is an issue of material fact as to whether the tool shed was an “accessory use”. This was material to a determination of whether or not the property owner would be required to get a permit, and if he was required to get a permit then it would be material for the trial court to determine if the structure he proposed to maintain met the building code requirements of the municipality. Wisner v. Goodyear Tire & Rubber Co., Fla.App. 1964, 167 So.2d 254; City of Pinellas Park v. Cross-State Utilities Co., Fla.App.1965, 176 So.2d 384; Herold v. Computer Components International, Inc., Fla.App.1971, 252 So.2d 576; City of Hallandale v. State ex rel. Sage Corporation, Fla.App.1974, 298 So.2d 437.

Neither counsel favored the trial court with the benefit of the entire Zoning-Code of the City of Coral Gables and, therefore, we do not have an opportunity to examine it. We do not, by this opinion, touch upon the alleged invalidity of the several sections of the zoning ordinance for constitutional infirmities, as urged by the appellee on his cross-appeal. This is something that first must be determined by the trial court in the event he should find that the property owner is required to comply with the Zoning Code in order to maintain his tool shed.

We return the matter to the trial court for a trial on the issue of whether or not the improvement sought to be maintained by the property owner is, in fact, an “accessory use”, and if so is the property owner entitled to maintain it on his premises.

Reversed and remanded, with directions.


text:
    Logan B. HORNE et al., Appellants, v. C & R BUILDING MATERIALS, INC., a Florida Corporation, Appellee.
    No. 75-286.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Rehearing Denied Dec. 3, 1975.
    David M. Thomson, Miami, for appellants.
    Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

By this appeal, we are called upon to review the propriety of a final judgment establishing an equitable lien, which also awarded interest and certain costs.

We find no error in the final judgment under review as to the award of the equitable lien and the costs. Lewis v. Meginniss, 30 Fla. 419, 12 So. 19; Carter v. Suggs, Fla.App.1966, 190 So.2d 784; Crane Co. v. Fine, Fla. 1969, 221 So.2d 145. However, we find that the trial judge erred in awarding interest from the date of the completion of the work under the authority of Gerber Groves, Inc. v. Belle Glade Agricultural Contractors, Inc., Fla. App.1968, 212 So.2d 669; Sharpe v. Ceco Corporation, Fla.App.1970, 242 So.2d 464.

Therefore, we affirm the final judgment as to the impression of the equitable lien and as to the cost award, but modify same by striking the award of interest therefrom.

Affirmed in part; reversed in part.