author: MAGER, Chief Judge.

text:
    Joseph CAMERANO, Appellant, v. Helen CAMERANO (Michalak), Appellee.
    No. 76-129.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1976.
    Curtis R. Mosley of Law Offices of Wolfe, Kirschenbaum, Caruso & Mosley, P.A., Merritt Island, for appellant.
    John H. Evans and Robert A. Wohn, Jr., of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellee.
   MAGER, Chief Judge.

This is an appeal by Joseph Camerano, appellant-respondent, from an amended (post-judgment) order awarding Helen Camerano (Michalak), appellee-petitioner, child support.

The record reflects that a final judgment of dissolution was entered on January 21, 1974 wherein custody of the two minor children, ages 15 and 11 respectively, was awarded to appellee. No child support was ordered at that time. However, the final judgment of dissolution contained the following:

“The court reserves jurisdiction over the parties hereto for child support and any further orders that may be appropriate.”

The record reflects that on August 15, 1975, appellee filed a petition for the award of child support alleging, among other things, that the appellant orally agreed to provide child support for the two minor children; had failed to provide such support pursuant to the agreement; and was able to provide such support; and requesting the award of child support in accordance with the prior alleged oral agreement. The record further reflects that the petition was served upon the appellant by means of sending a copy to the appellant by certified mail to an address in Brooklyn, New York.

On October 3 the trial court entered an order denying appellant’s motion to strike and dismiss appellee’s petition. Thereafter appellant filed an answer denying the essential allegations of appellee’s petition. Appellant also filed a financial affidavit reflecting a total net income of $95.00 per week with expenses reflecting $123 per week and total assets in the amount of $350.

At trial appellee testified that at the time of the divorce the appellant verbally agreed at or prior to dissolution to .pay child support in the amount of $200 per month or $100 per child. Appellee further testified that appellant made some (voluntary) payments to the appellee for child support. In an effort to further demonstrate appellant’s financial ability to pay the appellee further testified that appellant had given one of the minor children an expensive 10-speed bicycle and had promised to buy the two children automobiles and promised to pay college education for the minor children and all the medical bills for which he had insurance.

The testimony of the appellee further reflected that she had since remarried and that her present husband was providing for the support of her two children.

On January 23, 1976 the trial court entered an amended order awarding appellee the sum of $100 per month per child for the support of the two minor children of the parties. A reading of the amended order reflects that the trial court relied upon the verbal agreement between the parties and the appellant’s asserted compliance for a time with such agreement.

In this appeal the appellant contends that the trial court lacked jurisdiction over the person of the appellant by reason of service of the petition by certified mail rather than in accordance with the statutes and rules pertaining to service of process upon residents and non-residents. Appellant further contends that the trial court erred in basing the child support award upon a verbal agreement made prior to the entry of the final judgment of dissolution. Appellant also contends that since the award of child support constituted a modification of the support provisions of the final judgment of dissolution it was necessary to demonstrate a substantial change in the circumstances of the parties which the record does not support.

With regard to the jurisdictional contentions of the appellant and the assertion that the petition for the award of child support was required to be served in the same manner as the required service of process as though it were an initial pleading in an action (Rule 1.070, Fla.R.Civ.P.; sections 48.193(1), (2) and 48.194, Florida Statutes), the decision in Sikes v. Sikes, 286 So.2d 210 (Fla. 1st DCA 1973), and the provisions of Rule 1.110(h), Fla.R.Civ.P., indicate that appellant’s contentions are without merit. In Sikes v. Sikes, supra, the court discussed the nature of post-judgment proceedings involving an increase, decrease or enforcement of child support provisions of a divorce decree indicating that such proceedings are by nature “supplemental to the original decree and are merely a continuation of the original proceeding ”. In this regard the court specifically pointed out: “. . .It has further been held that

parties having been properly brought within the jurisdiction of the trial court at the outset, the supplemental proceedings may be bottomed on a reasonable notice which affords an opportunity to be heard. Such notice may be by mail and its sufficiency in each particular instance is tested by its reasonableness and by the adequacy of the opportunity afforded the opposing party to be heard and to defend against the petition for modification. ...” (286 So.2d at 212).

The Sikes decision was decided in 1973 but makes no reference to Rule 1.110(h), which was adopted in 1971 (253 So.2d 404). Subsection (h) of Rule 1.110, provides as follows:

“(h) Subsequent Pleadings. When the nature of an action permits pleadings subsequent to final judgment and the jurisdiction of the court over the parties has not terminated, the initial pleading subsequent to final judgment shall be designated a supplemental complaint or petition. The action shall then proceed in the same manner and time as though the supplemental complaint or petition were the initial pleading in the action, including the issuance of any needed process. This subdivision shall not apply to proceedings that may be initiated by motion under these rules.”

We find no inconsistency between Rule 1.110 and Sikes v. Sikes, supra. A common sense reading of the rule reflects that if the court’s jurisdiction over the parties is not terminated issuance of new process becomes unnecessary. The specific retention of jurisdiction dispenses with the necessity of further process — under the circumstances process is not ‘-‘needed”. Further support for this proposition may be found in Trawiek’s treatise on Practice and Procedure (1975 edition), sec. 7-7, which provides, in part, as follows, at p. 107:

“§ 7-7 Supplemental pleadings
Many actions have proceedings subsequent to the final judgment that are continuations of the original action and require a determination of issues of fact. Some examples are trust accountings and modification of judgments in dissolution of marriage actions. These proceedings may raise issues of fact that cannot be accommodated by a speaking motion as discussed in § 9-4. In these situations the pleader may file a supplemental complaint or petition, as is appropriate. It has the same effect as an initial pleading. It begins a new proceeding as a continuation of the original action. The term ‘proceeding’ used in this sense does not imply a new or independent action. It means a continuation of the same action by a request for further judicial acts. Unless the court has retained jurisdiction by its former judgment or as a matter of law, new service of process is necessary as discussed in Chapter 8. . . . ” (Emphasis added.)

As heretofore indicated the final judgment of dissolution stated that the trial court specifically reserved jurisdiction over the parties “for child support and any further orders that may be appropriate.” Accordingly, the transmittal of appellee’s petition upon the appellant by certified mail was sufficient service.

We have carefully reviewed the appellant’s remaining contentions and are of the opinion that they are without merit. An examination of the record in its totality reflects the existence of sufficient competent substantial evidence upon which the trial court’s judgment may be sustained. Accordingly, the judgment of the trial court is AFFIRMED.

ALDERMAN, J„ and GREEN, OLIVER L., Jr., Associate Judge, concur.

      . It was suggested that the motion was predicated upon lack of jurisdiction over the person. However, the motion does not appear in the record on appeal.

      . Appellant did not appear at the trial.

      . Since the trial court initially withheld any decision regarding child support, appellee’s petition did not constitute a “modification” of a child support order to be decided by the applicable principles of law. Additionally, the appellant, who did not appear, filed answers to interrogatories regarding his financial circumstances which, in our opinion, were not proper for consideration inasmuch as they were not offered into evidence. Myers v. Roberts, 35 Fla. 255, 17 So. 358 (1895); 20 Fla.Jur., Discovery and Depositions, § 67, p. 446.


source: Caselaw Access Project

license: Public Domain

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. Geraldine GIBBS et al., Respondents.
    No. 76-888.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1976.

      Timothy P. McCarthy, of Levy, Plisco, Perry, Reiter & Shapiro, Palm Beach, for petitioner.
    Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for respondents.
   MAGER, Chief Judge.

Upon review of the briefs and record on appeal in this cause we are of the opinion that the order denying petitioner-defendant’s objection to certain discovery based upon the work product doctrine constitutes a departure from the essential requirements of law which will cause material injury to the petitioner throughout the remainder of the proceedings below for which a remedy by appeal would be inadequate., Pic v. Hoyt Development Co., Inc., 309 So.2d 586 (Fla. 2d DCA 1975); see also Stuart v. Hertz Corporation, 302 So.2d 187 (Fla. 4th DCA 1974); Beta Eta House Corporation v. Gregory, 230 So.2d 495 (Fla. 1st DCA 1970). Moreover, having determined that certiorari will lie we are also of the opinion that the order denying the petitioner-defendant’s motion to dismiss the punitive damage count in respondent-plaintiffs’ complaint should be vacated and set aside. 5 Fla.Jur., Certiorari, § 12, cf. Schoenrock v. Ballard, 185 So.2d 760 (Fla. 1st DCA 1966); Kennedy v. Kennedy, 303 So.2d 629 (Fla. 1974).

In the proceedings below the petitioner-defendant had issued an insurance policy to the respondents-plaintiffs covering certain personal and real property. Respondents filed a breach of contract action seeking compensatory and punitive damages as a result of petitioner’s (bad faith) refusal to pay for certain losses incurred by said respondents as a result of a fire. Interrogatories filed by the respondents sought discovery of the entire content of petitioner’s claim file in furtherance of its bad faith allegation and claim for punitive damages.

Traditionally, discovery orders in actions at law have been reviewable by certio-rari under the proper circumstances, particularly where the work product of a party litigant is the subject matter of such discovery. Brooks v. Owens, 97 So.2d 693 (Fla. 1957); Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970); Travelers Indemnity Company v. Fields, 262 So.2d 222 (Fla. 1st DCA 1972); Nationwide Insurance Co. Pinellas Cty. v. Monroe, 276 So.2d 547 (Fla. 2d DCA 1973); see in particular, Allstate Insurance Company v. Shupack, 335 So.2d 620 (Fla. 3d DCA 1976).

Additionally, with respect to the claim for punitive damages, it is clear from the face of the pleadings and from a reading of the applicable decisions that respondent has failed to demonstrate, as is required, the existence of a willful and independent tort separate and distinct from the breach of contract. Masciarelli v. Maco Supply Corp., 224 So.2d 329 (Fla.1969); Henry Morrison Flagler Museum v. Lee, 268 So.2d 434 (Fla. 4th DCA 1972); see World Insurance Company v. Wright, 308 So.2d 612 (Fla. 1st DCA 1975). An insuror’s bad faith refusal to settle a claim of its insured is not per se a willful and independent tort giving rise to a claim for damages. MacDonald v. Penn Mutual Life Insurance Company, 276 So.2d 232 (Fla. 2d DCA 1973). See also Butchikas v. Travelers Indemnity Company, Supreme Court of Florida Case No. 47,733 opinion filed June 30, 1976; Baxter v. Royal Indemnity Company, 285 So.2d 652 (Fla. 1st DCA 1973) cert. discharged 317 So.2d 725 (Fla.1975).

Accordingly, certiorari is granted and the cause remanded to the trial court for further proceedings consistent herewith.

CROSS and ALDERMAN, JJ., concur.


author: PER CURIAM.

text:
    Frederick Franklin GABBARD et al., Appellants, v. Mark William LUCAS, a minor, by and through his father and next friend, et al., Appellees.
    No. 76-1075.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1976.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellants.
    Jack H. Cook of Phillips & Babbitt, West Palm Beach, for appellees.
   PER CURIAM.

Review is improvidently sought here by interlocutory appeal of an order (denying leave to file a counterclaim) in an action formerly cognizable at law. We treat the interlocutory appeal as a petition for writ of certiorari. Mac Papers, Incorporated v. Coin Machine Acceptance Corp., 210 So.2d 463 (Fla. 3d DCA 1968).

Since no irreparable harm or injury has been made to appear and an adequate and complete remedy by appeal after final judgment is available, we deny the petition for certiorari.

Certiorari denied.

CROSS, DOWNEY and ALDERMAN, JJ., concur.


author: HENDRY, Judge.

text:
    HENDERSON DEVELOPMENT COMPANY INC., a Florida Corporation, Appellant, v. Edward G. GERRITS, Appellee.
    No. 75-1272.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Malcolm H. Friedman, Coral Gables, for appellant.
    Cypen & Nevins and Wayne A. Cypen, Miami Beach, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   HENDRY, Judge.

Appellant was the defendant below and appellee was the plaintiff.

The following facts appear from the record: On December 20, 1974, appellee filed a complaint for specific performance to compel appellant to convey to him a certain condominium unit. The complaint alleged (1) that appellee and appellant entered into a written contract for the sale of the condominium unit on April 3, 1973; (2) that prior to the closing date, appellee inspected said condominium unit and discovered that appellant had created certain deficiencies in said unit; and (3) that appellee advised appellant that he was ready, willing and able to close the transaction as soon as the deficiencies were corrected. Along with the complaint, appellee filed a notice of lis pendens.

Appellant filed its answer denying that it had created any deficiencies in the unit. By way of affirmative defense, appellant alleged that it had conveyed said condominium unit to a bona fide purchaser for value upon the failure of appellee to attend the closing of the unit as scheduled on October 3, 1974. With the aforementioned in mind, appellants argued in the lower court that a decree for specific performance would infringe upon the rights of the innocent third person and therefore, should not be granted.

On June 23,1975, the lower court entered a final judgment of specific performance in favor of appellee. The lower court found specifically that appellant had created the deficiencies in said condominium unit and had not acted reasonably in an effort to correct the deficiencies prior to the aforementioned closing date.

The lower court also found that on December 14, 1974, appellant conveyed said unit to a third party purchaser, but had not offered any proof to substantiate its affirmative defense that the third party was a bona fide purchaser for value who lacked notice or knowledge of appellee’s outstanding contract.

On July 1, 1975, appellant filed a motion for rehearing, which motion was denied. This appeal follows from the entry of the above final judgment of specific performance.

Appellant’s basic contention is that the lower court erred as a matter of law in granting a final judgment for specific performance in favor of appellee in that appel-lee had conveyed title to said unit to a bona fide purchaser for value. Appellant argues that the placing of the burden of proof upon it to prove that the third party was a bona fide purchaser was error and that it was up to appellee to offer evidence to rebut appellant’s affirmative defense.

Appellee contends that the lower court did not commit error in granting specific performance in favor of appellee in that the lower court correctly held that appellant failed to meet his burden of proof as to its affirmative defense of bona fide purchaser.

We agree with appellee in his contention. The granting or withholding of a judgment for specific performance is a matter within the sound judicial discretion of a court of equity and will not be disturbed on appeal unless clearly erroneous. Molina v. Reiss, 254 So.2d 853 (Fla. 3d DCA 1971).

The lower court correctly held that the burden of proof was on appellant to prove his affirmative defense of bona fide purchaser. Hough v. Menses, 95 So.2d 410 (Fla.1957). Therefore, the court having held that the burden had not been met, a decree of specific performance was capable of being rendered. Krantz v. Donner, 285 So.2d 699 (Fla. 4th DCA 1973).

In appellant’s reply brief, appellant was quick to point out that appellee’s main brief utilized the deposition and affidavit of the alleged bona fide purchaser in violation of F.A.R. 3.7(g). Both the affidavit and deposition of the purchaser were not a part of the record-on-appeal and were not before the lower court and therefore, appellant argues that we should not consider the matters included in said brief. Florida Livestock Board v. Hygrade Food Products Corporation, 141 So.2d 6 (Fla. 1st DCA 1962).

In reaching our decision in this matter, we have limited our review to only the record on appeal and conclude that there was substantial competent evidence to support the chancellor’s finding. Any other points raised by appellant are without merit and need not be discussed.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment appealed is affirmed.

Affirmed.


text:
    BUCKLEY TOWERS CONDOMINIUM, INC., a Florida non-profit Corporation, Appellant, v. Herbert BUCHWALD, Trustee, Appellee.
    Nos. 75-1675 and 75-1809.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.

      Joseph S. Paglino, Miami, for appellant.
    Steel, Hector & Davis, Miami, for appel-lee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant, plaintiff below, appeals an order of the lower court, dated October 28, 1975, granting appellee’s, defendant below, motion for sequestration.

This appeal originates from a continuous feud between appellant-condominium association and appellee-developer over a “community facility lease” (ninety-nine year recreation lease). Our decision in Buckley Towers Condominium, Inc. v. Buchwald, 321 So.2d 628 (Fla.3d DCA 1975), presents the factual circumstances upon which this appeal is based and for our purposes, we need not enumerate those same facts.

Suffice it to say that in appellant’s previous appeal to this court, we affirmed an order of the lower court which enforced a settlement agreement entered into between appellant-association and appellee-developer. In that case, appellee, as lessor of the community facilities lease at the condominium complex, was awarded a money judgment for unpaid delinquent rents due under the aforementioned lease.

In conjunction with the plenary appeal mentioned above, appellant applied to the lower court for a supersedeas order. The court entered such an order, however, appellant refused to accept its terms and sought modification of supersedeas in this court. We declined to modify and appellant appealed to the Florida Supreme Court, which dismissed the appeal. Buckley Towers Condominium, Inc. v. Buchwald, 327 So.2d 31 (Fla.1976). After we rendered our judgment in the plenary appeal, appellant again appealed to the Florida Supreme Court, however, said appeal was likewise dismissed for lack of jurisdiction at 330 So.2d 15 (Fla.1976). At no time did appellant ever agree to a supersedeas bond and therefore, the terms of the settlement agreement, which the lower court enforced by its order, and which we affirmed on appeal, are still in full force and effect.

Notwithstanding our decision affirming the lower court’s order, appellant has refused to obey said order by failing to pay appellee rent due him under the terms of the community facility lease, the recognition of said lease and its terms being made an integral part of the settlement agreement. Based upon this continual refusal, appellee filed a motion for sequestration requesting the trial court, pursuant to Fla. R.Civ.P. 1.570, to sequestrate the funds in possession of appellant-association, as security for payment due under the terms of the lease.

Appellant, thereupon, filed a motion objecting to the hearing on appellee’s motion for sequestration based upon insufficient notice and sought a cancellation or continuation of said hearing. The lower court denied appellant’s motion.

Pursuant to an evidentiary hearing, the lower court ordered sequestration of funds held by appellant-association and appointed a receiver to both manage the collection of said funds and distribute to appellee, out of said funds, monies owed him by virtue of his status as lessor under the community facility lease.

In light of the above factual background, appellant has taken two appeals. The first appeal is founded upon the lower court’s denial of appellant’s motion for continuance based upon insufficient notice. The second appeal is based upon the lower court’s order sequestering funds held by appellant-association and appointing a receiver to manage and distribute said funds. By order of April 15, 1976, these appeals were consolidated.

Appellant’s basic contentions are twofold: (1) that appellant’s counsel did not receive proper notice for the hearing on appellee’s motion to sequester the rents and therefore, it was error to deny his motion for continuance and (2) it was error to sequester the funds in appellant’s possession because the prerequisites of Fla.R.Civ.P. 1.570 had not been met. In addition, during oral argument, appellant raised the issue of the legality of the community facility lease, in light of Section 711.231, Florida Statutes (1975), which concerns itself with escalation clauses in recreation leases.

Appellee responds by stating that the trial judge did not abuse his discretion in declining to grant appellant’s motion for continuance, based upon insufficiency of notice; nor did the trial judge abuse his discretion in exercising his powers pursuant to Fla.R.Civ.P. 1.570, to sequestrate the rent due appellee under the terms of the settlement agreement.

In addressing ourselves to appellant’s first contention, we find the following dates to be of significant importance. Appellee filed and served his motion for sequestration on October 22, 1975. The motion was set for hearing on October 28, 1975. On October 24, 1975, the trial judge held an emergency hearing on appellant’s motion for continuance, which was based upon lack of notice and scheduled out of state commitments. Pursuant to the hearing and argument on appellant’s contentions, the trial judge denied the request.

It is black letter law that a motion for continuance is grounded in the sound judicial discretion of the trial court and the ruling of the court will not be disturbed unless an abuse of discretion is clearly shown. In re Gregory, 313 So.2d 735 (Fla.1972); Diaz v. Diaz, 258 So.2d 37 (Fla.3d DCA 1972). Based upon the chronology as set forth above, we cannot say that the trial judge abused his discretion in denying appellant’s motion for continuance, and in so doing, impliedly holding that notice was adequate.

As for appellant’s other contention, we look to the text of Fla.R.Civ.P. 1.570, Enforcement of Final Judgments, which in pertinent part, provides:

“ . . . If any other judgment, injunction or mandatory order for the specific performance of any act or contract is not complied with, the court may hold the disobedient party for contempt or may sequestrate his property . . . ” 31 Fla.Stat.Ann. 252 (1967).

The trial judge’s sequestration order did no more than enforce the settlement agreement of the parties. The Florida Supreme Court has held that courts of chancery have the power to enforce their orders and decrees lawfully made and entered. Burkhart v. Circuit Court of Eleventh Judicial Circuit, 146 Fla. 457, 1 So.2d 872 (1941). That same court has also held that the aid of a receiver in enforcing a final judgment might be enlisted under proper circumstances. Fleming v. Otis Elevator Co., 107 Fla. 557, 145 So. 201 (1933).

We have held that the appointment of a receiver rests in the sound discretion of the court and is to be exercised according to the facts of each particular case. Recarey v. Rader, 320 So.2d 28 (Fla.3d DCA 1975). After a careful review of the record and the long history this case has endured, we do not feel that the trial judge abused his discretion in either sequestering the funds held by the association or in appointing a receiver to manage those funds. In so holding, we have closely examined appellant’s contention that necessary prerequisites have not been met (i.e., an order of contempt, a writ of execution returned nulla bona) as a precondition to the utilization of Fla.R.Civ.P. 1.570 and after a careful reading of the aforementioned rule, we do not believe that contention meritorious.

Finally, during oral argument, appellant for the first time raised the issue of the legality of the community facility lease in light of Section 711.231, Florida Statutes (1975). The question of the legality of said lease, not having been argued in the briefs nor assigned as error is not appropriately before us and we need not consider its merits. F.A.R. 3.7(i), 32 F.S.A. 160 (1967).

Any other points raised by appellant are without merit and need not be discussed.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited and discussed, the judgment appealed is affirmed.

Affirmed.


text:
    CITY OF STUART, a political subdivision, Petitioner, v. A. J. McMULLIAN, III, Director, Division of Employment Security, State of Florida Department of Commerce, Respondent.
    No. BB-283.
    District Court of Appeal of Florida, First District.
    Dec. 17, 1976.
    Rehearing Denied Jan. 25, 1977.
    Ford L. Thompson and Robert M. Rhodes of Thompson, Wadsworth, Messer, Turner & Rhodes and W. R. Scott, Tallahassee, for petitioner.
    James R. Parks, Miami, and Kenneth H. Hart, Jr., Tallahassee, for respondent.
   PER CURIAM.

The primary issue posed by petitioner is that Section 443.07(5)(b), Fla.Stat., explicitly prohibits respondent from charging petitioner for unemployment compensation benefits erroneously paid by respondent and finally reversed and disqualified by an appeals referee. Baptist Baptist Hospital, Inc. v. White is decisive of the issue involved in this cause and requires reversal.

REVERSED.

BOYER, C. J., RAWLS, J., and MCDONALD, PARKER LEE, Associate Judge, concur.

      . Sec. 443.07(5)(b), Fla.Stat., provides in part: “. . If a determination allowing benefits is affirmed in any amount by an appeals referee, or is so affirmed by the commission or if a decision of an appeals referee, allowing benefits is affirmed in any amount by the commission, such benefits shall be promptly paid regardless of any further appeal, and no injunction, supersedeas, stay, or other writ or process suspending the payment of such benefits shall be issued bv any court, but if such decision is finally reversed, no employer’s account shall be charged with benefits so paid pursuant to the erroneous determination and benefits shall not be paid for any subsequent weeks of unemployment involved in such reversal.” (emphasis supplied)

        . Baptist Hospital, Inc. v. White, 313 So.2d 106 (1 Fla.App.1975).


author: DOWNEY, Judge.

text:
    Joseph P. PENZA, Appellant, v. Theodore NECKLES, Individually and Daniel Resnick, Individually d/b/a Crown Associates, Appellees.
    No. 75-689.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Steve E. Moody, Moody & Jones, Fort Lauderdale, for appellant.
    Michael J. Padula, Allsworth, Doumar, Schuler, Padula & Laystrom, Fort Lauder-dale, for appellee-Theodore Neckles.
   DOWNEY, Judge.

Joseph Penza sued Daniel Resnick (individually, and d/b/a Crown Associates) and Theodore Neckles in what was primarily a contract action (Circuit Court Case No. 73-5643). After a non-jury trial, the court on December 31, 1974, entered final judgment for appellant and against Resnick and Neckles, jointly and severally, for $29,-392.42. Neckles filed an appeal from that final judgment (District Court of Appeal Case No. 75-162). Shortly after filing his notice of appeal in 75-162, Neckles asked this court to relinquish jurisdiction of the cause to the circuit court so that he might file a motion (pursuant to Fla.R.Civ.P. 1.540(b)) to vacate the final judgment. This court granted the request and the circuit court, after an evidentiary hearing, ruled that a post final judgment document that Penza had executed operated to discharge Neckles from any liability to Penza on the final judgment. This appeal by Pen-za is from that order, this court having stayed Case No. 75-162 until the outcome of the present appeal.

The post final judgment document between Penza and Resnick is set forth on a standard general release form which in pertinent part states:

“That I, JOSEPH P. PENZA
first party, for and in consideration of the sum of Twenty-Five Hundred and no/100 Dollars, or other valuable considerations, received from or on behalf of
DANIEL RESNICK, individually and d/b/a CROWN ASSOCIATES, a partnership, and also partners of CROWN ASSOCIATES, other than THEODORE NECKLES.
second party, the receipt whereof is hereby acknowledged,
HEREBY remise, release, acquit, satisfy, and forever discharge the said second party, of and from all, and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which said first party ever had, now has, or which any personal representative, successor, heir or assign of said first party, hereafter can, shall or may have, against said second party, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of these presents. This release releases Daniel Resnick and all partners of the partnership Crown Associates with the exclusion of THEODORE NECKLES. Any interest whatsoever which the said THEODORE NECK-LES may have in Crown Associates or in any monies or other properties coming into Crown Associates at any time is not released in any manner whatsoever. Any monies or personal properties or real properties owned by Crown Associates in which THEODORE NECKLES has any interest whatsoever, is specifically not released by this general release form. Any interest held by any of the partners of Crown Associates in Crown Associates or in any other assets whatsoever, which THEODORE NECKLES may have an interest in, is not released in any manner by this general release form.”

The appellate question presented is whether the circuit court’s conclusion that the foregoing instrument “satisfied, released and/or discharged” Neckles from the final judgment of December 31, 1974, was proper.

At common law the release of one joint and several obligor released all joint and several obligors on the same obligation. 66 Am.Jur., Release, §§ 35, 36; 4 Corbin on Contracts, § 931; Anno: Joint Debtor’s Release, 53 A.L.R. 1420. And the rule was the same as to the release of joint tort-feasors. Louisville & N.R. Co. v. Allen, 67 Fla. 257, 65 So. 8 (1914). Of course, the common law rule on joint tort-feasors was changed to a large degree by the Florida Legislature in 1957 (Chapter 57-395, Laws of Florida), but the common law rule still prevails to this day in matters other than tort.

Since the rule was the same in both tort and contract cases, we can look to several Florida cases which predate Chapter 57-395, Laws of Florida, for guidance in resolving the appellate issue in this case. Clearly, if the instrument involved here had not attempted to reserve to Penza all of his rights against Neekles, the answer would be simple. However, the instrument involved makes it quite clear that for $2500 paid by Resnick, Penza had no intention of releasing Neekles from the $29,392.42 judgment.

In Louisville & N.R. Co. v. Allen, supra, the Supreme Court of Florida recognized that a release of one of several joint tort-feasors releases all joint tort-feasors. The court then addressed the question of the effect of an express reservation of rights in the release to sue the other joint tort-fea-sors stating:

“We must now consider the effect of this reservation. Upon this point the courts are hopelessly divided and in irreconcilable conflict. We have devoted much time to its consideration and have examined all the authorities which we could find bearing upon the subject. We shall not cite them all, but shall select a few of the leading cases upon each side of the question, from which and the notes appended thereto the other authorities may readily be found, if desired. We have reached the conclusion not only that the numerical weight of authority, but that the better-reasoned cases, are to the effect, as was held in Abb v. Northern Pacific Ry. Co., 28 Wash. 428, 68 P. 954, 58 L.R.A. 293, 92 Am.St.Rep. 864: ‘The acceptance of a sum of money from one joint tort-feasor in satisfaction of a claim for damages, and the execution of a release and discharge of such joint tort-feasor from all damages by reason of the injuries inflicted, operates as a release of the other joint tort-feasor, though the parties to the agreement may stipulate that the release of one shall not discharge the other.’ We are impressed with the reasoning in this case. See the authorities cited therein. The authorities upon both sides of the question up to that time are collected in the monographic notes in 58 L.R.A. 293 and 92 Am.St.Rep. 872. In line with the holding in the cited case, see, McBride v. Scott, 132 Mich. 176, 93 N.W. 243, 61 L.R.A. 445, 102 Am.St.Rep. 416, 1 Ann. Cas. 61; Farmers’ Savings Bank v. Aidrich, 153 Iowa 144, 133 N.W. 383; Flynn v. Munson, 19 Cal.App. 400, 126 P. 181; Ducey v. Patterson, 37 Colo. 216, 86 P. 109, 9 L.R.A.(N.S.) 1066, 119 Am.St.Rep. 284, 11 Ann.Cas. 393. Perhaps the leading case on the other side of the question, and certainly as well reasoned as any reaching that conclusion which we have found, is Gilbert v. Finch, 173 N.Y. 455, 66 N.E. 133, 61 L.R.A. 807, 93 Am.St.Rep. 623, wherein it was held that: ‘If a release of one or more joint tort-feasors contains no reservation, it operates to discharge all; but, if the instrument expressly reserves the right to pursue the others, it is not technically a release, but a covenant not to sue, and they are not discharged.’ To the like effect are Edens v. Fletcher, 79 Kan. 139, 98 P. 784, 19 L.R.A.(N.S.) 618; Walsh v. New York Cent. & Hud. R.R. Co., 204 N.Y. 58, 97 N.E. 408, 37 L.R.A.(N.S.) 1137. We cannot follow this line of cases.”

The Allen case was followed in Roper v. Florida Public Utilities Co., 131 Fla. 709, 179 So. 904 (1938), which held:

“The fact that the release contains a provision to like effect as the second paragraph in the agreement here quoted [a reservation of rights to sue other joint tort-feasors] does not relieve it from the rule here approved. We had the identical question in Louisville & N.R. Co. v. Allen, supra, and while we found that there was much contrariety of opinion on the question, we held that a stipulation between the parties that the release of one will discharge the other was the law of this state.”

Appellant relies heavily upon the case of Atlantic Coast Line Railroad Company v. Boone, 85 So.2d 834 (Fla.1956), and Albert’s Shoes v. Crabtree Construction Company, 89 So.2d 491 (Fla.1956), as demonstrating that Florida has drifted away from the old common law rule and is now in accord with the so-called modern view. While we would prefer that result, the two cases cited are distinguishable and will not support that conclusion.

Both Boone and Albert’s Shoes involved covenants not to sue. In Boone the plaintiffs’ covenant not to sue one joint tort-fea-sor was stated in such broad terms that it amounted to a covenant to not sue anyone for the wrong done. The plaintiffs were thus held to be precluded from maintaining their suit against the other joint tort-feasor involved in the action. In Albert’s Shoes the injured party had covenanted not to sue one joint wrongdoer but in so doing it specifically reserved its right to sue the other joint wrongdoer. That narrowly drawn covenant not to sue permitted the plaintiff to maintain its action against the second joint wrongdoer.

As pointed out in Boone and Albert’s Shoes, there is a recognized distinction between a covenant not to sue and a release. The former recognizes that the obligation or liability continues, but the injured party covenants not to assert any rights thereon against the covenantee. The latter is an outright cancellation or discharge of the entire obligation. In the case at bar we are dealing with a general release executed by Penza, the obligee, releasing Resnick, one joint and several obligor. It is quite evident that Penza did not intend to release or discharge Neckles, the other joint and several obligor, from liability under the judgment. However, the release Penza gave Resnick discharged Neckles from liability, because under the law in Florida as we understand it, the common law rule still prevails and a release of one joint and several obligor releases all others.

Because we feel that this result does not square with justice, we have considered the propriety of treating the release in question as a covenant not to sue, since then it would more nearly have evidenced the intention of the parties (Penza and Resnick). However, such a course of action was condemned in the Allen case. Perhaps the only way to preclude this type of inequitable result is through legislative action similar to that which brought about the elimination of the rule among joint tort-feasors in Chapter 57-395, Laws of Florida.

Since we perceive the question involved to be one of great public interest, we certify the following question to the Supreme Court of Florida:

Does the written release of one joint and several obligor release all other joint and several obligors on the same obligation when the release expressly states that is not the intention of the obligee to release any other joint and several obligor and when the release expressly reserves the right in the obligee to sue any and all other joint and several obligors?

AFFIRMED.

CROSS, J., and SCHULZ, GEORGE E., Associate Judge, concur.

      . “The trend of modem authority tends to modify the strict common-law rule by which joint debtors were often released by an inadvertent or ill-advised release of one of them. The modern view is that the intent of the parties, as expressed by their acts and particularly their writings, should be considered in determining the question of release. Thus, it is held that a release which reserves the creditor’s rights against the other judgment debtors does not release and discharge all.” 47 Am.Jur.2d Judgments, § 989, p. 85. (Footnotes omitted). See too, 4 Corbin on Contracts, §§ 931, 933; Anno — Joint Debtors — Release, 53 A.L.R. 1420, 1471.


text:
    Lewis QUINN, Appellant, v. ADVANCED LIGHTING PRODUCTS, INC., a North Carolina Corporation, Appellee.
    Nos. 75-1061 and 75-1644.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.

      William J. Terry, Tampa, for appellant.
    C. Ken Bishop and Kenneth D. Morse, of Jones & Bishop, P.A., Altamonte Springs, for appellee.
   PER CURIAM.

Upon due consideration of the briefs and record in this consolidated appeal from a final judgment entered pursuant to a jury verdict in Case No. 75-1061 and an order granting summary final judgment in Case No. 75-1644, we are of the opinion that the order granting appellee, Advanced Lighting Products, Inc.’s motion for summary judgment based upon the doctrine of res judica-ta was error.

In appeal No. 75-1644, the appellant Lewis Quinn, who was the plaintiff below, filed an action against the appellee seeking damages predicated upon the theory of quantum meruit. In appeal No. 75-1061, the appellee, who was the plaintiff below, filed an action seeking compensatory and punitive damages, injunctive relief and repayment of money allegedly loaned by ap-pellee to appellant. In that suit appellant counterclaimed alleging a breach of an oral contract. The jury found against the ap-pellee as to its damage claim and found against the appellant as to its counterclaim for contractural services. Although appellant contends that the trial court erred in not allowing proof of performance of an alleged oral contract or an amendment of the pleadings to allege a claim of recovery under the theory of quantum meruit, it is unnecessary to consider these contentions in light of our reversal in appeal # 75-1644. In this regard, based upon the facts and circumstances of these cases, the action seeking recovery on quantum meruit was not barred by the doctrine of res judicata. Although there is no Florida case directly on point, the following statement appears in 50 C.J.S. Judgments § 649, p. 92: See also, Universal Const. Co. v. City of Fort Lauderdale, 68 So.2d 366 (Fla.1953); Super Service Products Corp. v. North Store Corp., 214 So.2d 664 (Fla.3d DCA 1968).

“ . . . The general rule that a judgment for defendant will not bar a subsequent action by plaintiff based on a new and more correct theory applies where plaintiff, in an action to recover on an express contract for services to be rendered or goods to be furnished, has been defeated on the ground that the contract was invalid, or was not proved, or had not been fully performed, and he may thereafter sue on the theory of an implied contract or quantum meruit. However, a suit on such other theory may be barred where an express contract was shown, or where the ground of the prior decision was that no such services were rendered or goods furnished or that the services were performed so negligently as to be worthless. . . . ”

Accordingly, having found no other reversible error, the final judgment in appeal No. 75-1061 is affirmed and the order granting summary final judgment in Case No. 75-1644 is vacated and set aside and the cause remanded to the trial court for further proceedings consistent herewith.

MAGER, C. J., DOWNEY, J., and STEWART, JAMES R., Jr., Associate Judge, concur.

      . The quantum meruit action was filed after the rendition of a jury verdict in the action alleging breach of oral contract.


text:
    John SPANN, Appellant, v. STATE of Florida, Appellee. James BURKS, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-1648, 75-1741.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Richard L. Jorandby, Public Defender, and Daniel T. O’Connell, Asst. Public Defender, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

During the course of appellants’ trial the arresting officer testified that appellant Spann gave an incriminating statement after receiving Miranda warnings. He also testified that appellant Burks remained silent. No objection was made. However, the Supreme Court has held such testimony constitutes fundamental error of constitutional dimension. Bennett v. State, 316 So.2d 41 (Fla.1975). See also Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967); Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976); Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976).

We have examined appellants’ other point on appeal and found no reversible error. Accordingly, the judgment appealed from is affirmed as to appellant Spann and reversed and remanded for a new trial as to appellant Burks.

CROSS and ALDERMAN, JJ., concur.


author: ALDERMAN, Judge. WALKER, WILLIAM L., Associate Judge

text:
    Joseph Curtis SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 75-1867.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

Defendant appeals his conviction of involuntary sexual battery and subsequent sentence to life imprisonment pursuant to Section 794.011(3) Florida Statutes (Supp. 1974).

The victim testified that she was asleep on a couch in her home when she was grabbed from behind by an unknown intruder whom she later identified in a police lineup and at trial as the appellant. With his arm around her neck, he pulled her into a bedroom of the house. As she was being pulled she suffered a scratch on her neck which could have been caused by a fingernail; also something hurt her ribs. She did not see any weapon and did not feel she was going to be strangled. In the bedroom she was forced to lie down on the bed, and yielded to appellant’s demand for sexual intercourse. Out of fear, and hoping to get rid of the intruder, she did not resist. She testified: “I was cooperating with him. I guess at the time it was easier to cooperate than have it forced.” Appellant then asked for money and the victim, under the pretext of going to borrow some money, went next door and phoned the police.

Appellant raises three points on this appeal, but only one has merit. The trial judge refused to instruct the jury or to submit verdicts on Sections 794.011(4)(b) and 794.011(5), Florida Statutes (Supp. 1974). The trial judge was of the opinion these sections of the statute did not establish degrees of sexual battery or lesser included offenses, but were simply sentencing guidelines for the trial judge in the event the defendant was found guilty of sexual battery. In denying defendant’s requested instructions the trial judge, referring to § 794.011(4)(b) and § 794.011(5), said:

“I am using those as a sentencing guideline if the jury comes back with yes or no. After that, it’s up to you to convince me that falls within a certain sentencing area, and that’s the way I am going to treat it. We are going to try and do it that way and make it understandable to the jury. These people come off the street and don’t know anything about the law. They just decide whether or not this man did it, and I will decide what degree, until the court of appeals tells me in precise language that I can’t do that that way . . .” (Trial Transcript, page 196)

In fairness to the trial judge we point out that at the time he was presented with this issue he did not have the benefit of the Standard Jury Instructions in Criminal Cases, authorized by the Supreme Court on February 4, 1976, Fla., 327 So.2d 6. From our own experience as trial judges, we understand and appreciate the frustration of the trial judge in this case who, under the pressure of time during a trial and without controlling precedent, had to construe and apply a new statute. So it is without criticism of the able trial judge, after full consideration of the issue, that we reverse.

The Information against the defendant charged in part as follows:

“. . . Joseph Curtis Smith did, in violation of Florida Statute 794.011, commit a sexual battery upon a person over the age of eleven (11) years, . without that person’s consent and in the process thereof used or threatened to use a deadly weapon or used actual physical force likely to cause serious personal injury.”

A person found guilty of this offense as charged, under § 794.011(3), would be guilty of a life felony. There was no evidence that the defendant “used or threatened to use a deadly weapon.” Therefore if he is guilty of a life felony it must be based upon the jury finding that he “used actual physical force likely to cause serious personal injury.” The evidence in our opinion is sufficient to support such a finding. However it is not so overwhelming that the jury, if given the opportunity, might have found that although the defendant did not use “actual physical force likely to cause serious personal injury”, he did coerce the victim to submit by “threatening to use force or violence likely to cause serious personal injury on the victim”, which under § 794.011(4)(b) would be a felony of the first degree. Likewise, the jury from the evidence might have concluded that the defendant used “physical force and violence not likely to cause serious personal injury”, which under § 794.011(5) would be a felony of the second degree.

We hold that the first degree felony offenses under § 794.011(4) and the second degree felony offense under § 794.011(5) are lesser-included offenses of § 794.011(3). Under Brown v. State, 206 So.2d 377 (Fla.1968) they fall into what has been designated as category four offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. In this case both the accusatory pleading and the evidence would support the jury finding the defendant guilty of one of the lesser offenses. Instructions should have been given and verdicts submitted to the jury for the offenses set out in § 794.011(4)(b) and § 794.011(5). The particular instruction requested by defendant was perhaps irregular, but under the circumstances would have been adequate. However if this case is retried we suggest that the trial court utilize the Standard Instructions.

We have considered the other points raised by appellant and in reference to them find that no reversible error was committed by the trial court.

We reverse and set aside the conviction and sentence under § 740.011(3) and remand with instructions that upon the State’s election, the appellant shall be either adjudged guilty and sentenced for a second degree felony under § 740.011(5), or in the alternative be granted a new trial. Lightfoot v. State, 331 So.2d 388 (Fla. 2nd DCA 1976); McClain v. State, 288 So.2d 285 (Fla. 4th DCA 1974).

ADAMS, ALTO, Associate Judge, concurs.

WALKER, WILLIAM L., Associate Judge, dissents, with opinion.

WALKER, WILLIAM L., Associate Judge

(dissenting):

I would affirm the trial court.

Defendant was convicted of a sexual battery. The single count information charged the Defendant “did, in violation of Florida Statute 794.011, commit a sexual battery upon a person over the age of eleven (11) years, . . . without that person’s consent and in the process thereof used or threatened to use a deadly weapon or used actual physical force likely to cause serious personal injury.”

Appellant, among his assignments of error, alleges:

“(3) That the trial court erred in failing to include the felony of the first degree of Involuntary Sexual Battery and the felony of the second degree of Involuntary Sexual Battery as lesser included offenses of the life felony of Involuntary Sexual Battery.”

The various “sexual battery” offenses, though contained in the same Statute and under the same verbal heading and punished in different degrees have different elements not included each in the other and are not degrees of the same offense.

Though there was a charge of a threat to use a deadly weapon, there was no evidence of a deadly weapon nor a threat. There was a charge of the use of actual physical force likely to cause serious personal injury, but no charge of a threat to cause serious personal injury. Therefore, under the charging document, the defendant could not have been convicted of a threat to use physical force under § 794.011(5).

There was no language in the charging document contending the Defendant used force “not likely to cause serious personal injury”, but instead the State charged the defendant used physical force “likely to cause serious personal injury.” One charge, in my opinion, necessarily excludes the contrary and it is therefore not a necessarily included offense. It is a separate charge not made by the State anywhere in the charging instrument. Again the defendant could not have been so convicted.

The real evidence of force was that of dragging the victim to the bedroom by a grip around her neck. Had the jury not believed this to have been force to cause serious personal injury, the State would not have carried its burden and the Defendant would have been discharged. In short, I would hold physical force not likely to cause serious personal injury is not necessarily included in force likely to cause serious personal injury.

To repeat, the necessary elements of the other offenses are not included in the charging document nor in the evidence and there was no reversible error under Brown v. State, 206 So.2d 377 (Fla.1968). I find no reversible error in the other points raised and would affirm.

      . 794.011(3) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony, punishable as provided in § 775.-082.

      . 794.01 l(4)(b) When the offender coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute these threats.

      . 794.011(5) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury shall be guilty of a felony of the second degree, punishable as provided in § 775.082.


text:
    GENIE DRYWALL & CONSTRUCTION, INC., Appellant, v. LYTTONS, INC., a Florida Corporation, Appellee.
    No. 75-2026.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    James R. Dressier, Cocoa Beach, for appellant.
    Edward L. Trader and Thomas E. Shine, Melbourne, for appellee.
   PER CURIAM.

This is an appeal from an order granting appellee, defendant below, a new trial after rendition of a $13,000 jury verdict in favor of appellant in a breach of contract action.

The first reason stated by trial court for granting appellee’s motion for new trial was:

“That the verdict is not supported by the evidence presented at the trial.”

This was an insufficient ground upon which to grant a new trial. In Hodge v. Jacksonville Terminal Company, Fla., 234 So.2d 645 (1970), the Supreme Court had before it an order granting a new trial which specifically stated:

“. . . the Court has reached the conclusion that there was no evidence upon which the jury could lawfully have found that the defendant violated the Safety Appliance Act (45 U.S.C., Sec. 9 et seq.) as charged in Count II of the Amended Complaint and that the Court erred in submitting that issue to the jury for determination. . . . ” At p. 647.

The Court in Hodge, in reversing the order granting a new trial, held that more is required than a cursory disposition upon the ground that “the verdict is contrary to the evidence.” In Hodge, as in the present case, the motion for new trial did not allege and the trial judge did not find that the verdict was against “the manifest weight of the evidence.” See also Nunberg v. Brodsky, 224 So.2d 727 (Fla. 3d DCA 1969).

We have considered the other reasons stated by the trial court for granting the motion for new trial and conclude that they also are not legally sufficient.- We hold that the trial court in this case abused its discretion.

REVERSED and REMANDED with instructions that final judgment be entered in accordance with the jury verdict.

MAGER, C. J., ALDERMAN, J., and STOKES, ROBERT G., Associate Judge, concur.

      . The record in this case also reflects that there was in fact sufficient evidence presented at the trial to support the verdict.


text:
    FRED’S EXCAVATING & CRANE SERVICE, INC., a Florida Corporation, Appellant, v. The CONTINENTAL INSURANCE COMPANY, a corporation, and Bucyrus-Erie Company, Inc., et al., Appellees.
    No. 76-71.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    William Murrell, Jr., and William R. Lyle, Jr., Murrell, Lyle & Associates, Orlando, for appellant.
    Nicholas Yonclas, of Akerman, Senterfitt & Eidson, Orlando, for appellees-Employers Mutual Liability Ins. Co. of Wisconsin and Bucyrus-Erie Co., Inc.
   PER CURIAM.

This is an appeal from an order of the circuit court of Orange County dismissing, for failure to state a cause of action, Counts III and Count IV of Appellant’s third amended complaint. Appellant declined to further amend its complaint and the dismissals were with prejudice.

We find no error in the trial court’s dismissal of Count III, which attempted to allege a cause of action for breach of an implied warranty of fitness for a particular purpose, because Count III fails to allege a particular or unusual use different from the purpose for which the item sold is ordinarily used. However, as to Count IV, we find that it sufficiently alleges a cause of action for negligence and hold that the trial court erred in dismissing Count IV.

REVERSED IN PART; AFFIRMED IN PART, and remanded for further proceedings consistent with this opinion.

MAGER, C. J., ALDERMAN, J., and STOKES, ROBERT G., Associate Judge, concur.


text:
    Virginia LAMBERT, Appellant, v. Robert A. LAMBERT, Appellee.
    No. 76-370.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Kenneth S. Rappaport, Kurzinger & Honchell, Boca Raton, for appellant.
    John E. Bollinger, West Palm Beach, for appellee.
   DOWNEY, Judge.

The appellant wife seeks review of an interlocutory order authorizing the appellee husband and his elderly mother to share the marital residence with appellant pendente lite. The order was entered after notice and a hearing at which the parties testified. However, no transcript of said hearing nor any stipulated record is presented for our consideration of the trial court’s exercise of discretion.

Accordingly, no error has been demonstrated and the order appealed from is

AFFIRMED.

CROSS and ALDERMAN, JJ„ concur.


author: HENDRY, Chief Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Gladys GUERRA, Appellee.
    No. 76-991.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.

      Talburt, Kubicki & Bradley, Miami, for appellant.
    Horton, Perse & Ginsberg, Highsmith, Strauss & Nelson, Miami, for appellee.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Chief Judge.

Appellant-insurer, defendant below, by interlocutory appeal seeks review of a post-judgment order rendering attorneys’ fees in favor of appellee, plaintiff below.

Appellee was a passenger in a motor vehicle involved in an accident. Said vehicle was owned by one Mario Caldevilla and, at the time of the accident, was driven, with his consent, by his wife, Isis. Appellant insured both Mario and the vehicle.

Appellee was not an owner of a motor vehicle, pursuant to Section 627.736(4)(d) 4.a, Florida Statutes (1975), however, appel-lee’s husband, Jesus, owned an automobile which was insured by Gateway Insurance. Some time after the accident, Gateway Insurance was declared to be insolvent and a receiver, Florida Insurance Guarantee Association (FIGA), was appointed in its stead.

In accordance with the above statute, ap-pellee submitted proof of claim and an application for PIP benefits to appellant — as the insurer of the “owner of a motor vehicle” involved in an accident. Appellant, however, declined to pay, on the ground that the claim should be filed with FIGA, as the insurer of appellee’s husband’s vehicle, pursuant to Section 627.736(4)(d) 4.b, Florida Statutes (1975).

Upon being denied coverage, appellee commenced suit against appellant, which was allowed to implead FIGA so that all parties would be before the court. During the pendency of the action, FIGA paid ap-pellee’s full PIP claims. Appellee accepted payment from FIGA and summary judgment was entered in favor of appellant.

Subsequent to the entry of said summary judgment, appellee, by order, was awarded attorneys’ fees. It is from this award that appellant takes this interlocutory appeal.

In Criterion Insurance Company v. Gutierrez, 319 So.2d 70 (Fla. 3d DCA 1975), we held that with respect to any disputes between the insured and the insurer arising under the Florida Automobile Reparations Act, Section 627.736(8), Florida Statutes (1975), which allows for attorneys fees upon “any dispute” between an insured and the insurer, must be read in conjunction with Section 627.428, Florida Statutes (1975).

Section 627.428, Florida Statutes (1975) provides in part that:

“(1) Upon the rendition of a judgment or decree by any of the courts of the state against an insurer and in favor of an insured . . . , the trial court . shall adjudge or decree against the insurer and in favor of the insured . a reasonable sum as fees or compensation for the insured’s . . . attorney prosecuting the suit in which the recovery is had.”

Based upon the above statute, we are unable to see how the lower court could have properly awarded a summary judgment in favor of appellant-insurer on the coverage question and by subsequent order, awarded appellee reasonable attorneys’ fees.

Appellee contends that the real reason the summary judgment was entered in favor of appellant was because appellant “persuaded” FIGA to pay the PIP award and not because the “dispute” was judicially ruled upon in appellant’s favor. Therefore, appellee argues that she is still entitled to attorneys’ fees in that the trial court never reached the merits of the complaint.

Appellee’s contention is, however, unsubstantiated by and goes beyond the record-on-appeal and therefore, we cannot properly consider it. Sheldon v. Tiernan, 147 So.2d 593 (Fla. 2d DCA 1962).

Notwithstanding the above, even assuming the merits of the complaint had not been reached, we are of the opinion that pursuant to Sections 627.736(4)(d) 4.b and 627.736(4)(d) 3, Florida Statutes (1975), FIGA, as appellee’s husband’s insurer had the primary responsibility to pay the PIP claim. See Farley v. Gateway Insurance Company, 302 So.2d 177 (Fla. 2d DCA 1974).

Inasmuch as appellant was entitled to summary judgment as a matter of law, any award of attorneys’ fees to appellee was improper, in light of Sections 627.428 and 627.736(8) Florida Statutes (1975). The order appealed must therefore be reversed.

Reversed.


author: ALDERMAN, Judge. SCHWARTZ, ALAN R., Associate Judge

text:
    DAIRY SERVICE CORPORATION, Petitioner, v. STATE of Florida, DEPARTMENT OF CITRUS, Respondent.
    No. 76-784.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.

      Stephen P. Kanar of Fishback, Davis, Dominick & Simonet, Orlando, for petitioner.
    Monterey Campbell of Campbell, Dunlap, Coward & Blakeman, Bartow, for respondent.
   ALDERMAN, Judge.

Petitioner, Dairy Service Corporation, pursuant to Section 120.68, Florida Statutes (1975) seeks review of certain actions of the Florida Department of Citrus.

Petitioner is a licensed citrus fruit processor engaged in the business of processing, reprocessing, packaging, transporting and selling citrus products. Petitioner received from Brazil one thousand drums of orange concentrate. One hundred fifteen drums were utilized by petitioner in reprocessing. Without protest, petitioner paid the “Equalizing Excise Tax,” pursuant to Section 601.-155, Florida Statutes (1975), on those one hundred fifteen drums. Thirty-five drums were transhipped out of the State of Florida without removal of the contents from the original containers. Respondent did not seek to impose a tax on those thirty-five drums. A question arose, however, concerning the taxation of the remaining eight hundred fifty drums. The contents of those drums were emptied into railroad tank cars which were already partially filled with domestic orange concentrate. The co-mingled concentrates were then shipped out of the State of Florida.

Section 601.155(1), Florida Statutes (1975), provides in part:

“The first person who exercises in this state the privilege of processing, reprocessing, or packaging orange juice products, . . . shall pay an excise tax upon such privilege with respect to such processing, reprocessing, or packaging

By letter, respondent advised petitioner that a tax would be due on the eight hundred fifty drums because “. . . once you remove the import product from its original drum, even to put into a tanker, you have entered into a packaging operation." Petitioner responded by letter, contending that “. . . there was no processing, reprocessing or packaging done thereon by Dairy Service.” The correspondence continued with a letter to petitioner wherein respondent, after consultation with its attorney, restated its claim that a tax was due. Petitioner again denied liability. Subsequently on March 17, 1976, a meeting of the Processing Committee of the Florida Citrus Commission was held. According to the minutes of that meeting there was a discussion of the specific situation involving petitioner, as well as the general application of Section 601.155. Respondent’s general counsel and staff members requested instructions as to how they were to proceed in the present case and similar cases in the future. The following resolution was adopted by the Processing Committee: “. . . When imported concentrate comes into the state from a foreign source, when it is removed from its original container and put into another container— whatever kind — it then becomes taxable.” On the same day the report of the Processing Committee was presented to the Florida Citrus Commission. The minutes of that meeting reflect that the Commission approved and adopted the recommendation of the Processing Committee. On the next day petitioner was advised by letter of the action of the Florida Citrus Commission. Petitioner paid the tax under protest and filed a written petition, which among other things requested a formal hearing pursuant to Sections 120.56 and 120.57, Florida Statutes (1975). Respondent denied petitioner’s request upon the ground that the issue was moot, contending that petitioner had already been given a written agency declaratory statement pursuant to Chapter 120.565, Florida Statutes (1975).

Section 120.565, Florida Statutes (1975), provides:

“Declaratory statement by agencies Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statement as to the applicability of any statutory provision or of any rule or order of the agency. Agency disposition of petitions shall be final agency action.”

As mandated by Section 120.565 the Florida Citrus Commission adopted the following Rule:

“Petition for agency declaratory statement on applicability of statute, rule or order.
(1) Any interested person may file with the executive director of the Department of Citrus a written petition for a declaratory statement by the agency as to the applicability of any statutory provision of Chapter 601, Florida Statutes, or any rule or order of the Department of Citrus, to a set of facts as specifically set forth in the written petition.
(2) The Department shall immediately acknowledge receipt of the petition and advise the petitioner in such acknowl-edgement of the date the petition for a declaratory statement will be presented to the agency head for disposition.
(3)Whenever possible, petitions for declaratory statement will be presented at the next regular meeting of the agency head. However, petitions received within fourteen days 'of a meeting of the agency head need not be presented at that meeting but may, if necessary, be held for presentation at the next following meeting. Agency action on the petition shall be taken, unless otherwise agreed to by the petitioner, within 60 days of receipt of the petition.”
§ 20-102.06, Florida Administrative Code.

It does not appear from the record that petitioner ever filed a written petition for a declaratory statement as contemplated by Rule 20-102.06. It does appear that a dispute arose between petitioner and members of respondent’s staff as to whether or not a tax under Chapter 601.155 was due on eight hundred fifty drums of orange concentrate. The matter was first presented by respondent’s staff to the Processing Committee because, according to the minutes of that meeting, “a situation has developed which suggests that for both the specific situation as well as for future reference, the Commission should provide the staff direction as to the application of the Statute.” Neither the Processing Committee, nor the Florida Citrus Commission when it adopted the Processing Committee’s recommendation, had from petitioner “a written petition for declaratory statement by the agency as to the applicability of any statutory provision of Chapter 601, Florida Statutes, or any rule or order of the Department of Citrus, to a set of facts as specifically set forth in the written petition.”

We hold that the action of the Florida Citrus Commission on March 17, 1976, was not a “declaratory statement” under Chapter 120.565, Florida Statutes (1975) and Rule 20-102.06, Florida Administrative Code. Also the subsequent petition by Dairy Service Corporation for hearings under Section 120.56 and 120.57 was not a request for a “declaratory statement.” Therefore denial of this petition upon the ground that the issues raised are moot was incorrect. The issue is whether petitioner is entitled to a hearing under Sections 120.56 or 120.57.

We conclude that petitioner is not entitled to a hearing under Section 120.56. This Section of the Administrative Procedure Act allows any person substantially affected by a rule to seek an administrative determination of the invalidity of the rule. The “agency action” presently under review is not a “rule” of the Florida Citrus Commission.

However petitioner should have been allowed a hearing under Section 120.-57. The provisions of this Section apply in all proceedings in which the substantial interest of a party are determined by an agency. The adoption of the recommendation of the Processing Committee by the Florida Citrus Commission was a proceeding in which the substantial interest of Dairy Services Corporation was determined.

Certiorari is granted and the case remanded to the Florida Citrus Commission with directions that Dairy Services Corporation be allowed a hearing as provided by Section 120.57, Florida Statutes (1975).

SMITH, ROBERT P., Jr., Associate Judge, concur.

SCHWARTZ, ALAN R., Associate Judge, dissenting, with opinion.

SCHWARTZ, ALAN R., Associate Judge

(dissenting).

Notwithstanding the Petitioner’s failure to follow the procedural niceties prescribed by Rule 20-102.16, Florida Administrative Code — of which it seems it was, in any case, entirely unaware — I think that its correspondence with the Commission clearly constituted a request for an opinion as to the “applicability of [the] statutory provision” in question to its particular situation; and that the Commission’s opinion on that subject therefore amounted to the “declaratory statement” on that issue contemplated by F.S. § 120.565. We are told that this section of the Administrative Procedure Act was inserted into the statute specifically to provide for such statements by the Citrus Commission itself, which regularly renders them, and I can think of no situation to which the statute could more clearly apply. The Citrus Commission’s action of March 17, 1976 simply was a “statement” which “declared”, contrary to the position asserted by the Petitioner, that the general language of F.S. § 601.155(1) “applied” to the process acknowledgedly engaged in by Dairy Service Corporation. Since the procedure provided by F.S. § 120.565 does not require a pre-agency action hearing, I disagree with the majority’s conclusion that one must now be held.

Treating this petition, then, as one which seeks review, under F.S § 120.68(2), of the “final agency action” taken, as I believe, under F.S. § 120.565, I would reach the merits of the Citrus Commission’s action. On that issue, I think that the Commission’s conclusion that the Petitioner’s activities amount to a “packaging” of the orange juice concentrate which subjected it to taxation under F.S. § 601.155(1), represented a correct, and constitutionally permissible, Brown v. Maryland, 12 Wheat (U.S.) 419, 6 L.Ed. 678 (1827), General Oil Co. v. Crain, 209 U.S. 211, 230-231, 28 S.Ct. 475, 52 L.Ed. 754 (1907), interpretation of the statute. I would deny the petition for certiorari.


text:
    Joseph T. GARO, Appellant, v. Agnes Mae GARO, Appellee.
    No. 76-834.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.

      Joseph T. Garo, in pro. per.
    No appearance for appellee.
   PER CURIAM.

This pro se appeal is brought by a husband whose marriage was dissolved by a final judgment in Florida in 1973 — a judgment which was amended in a few particulars by a court order in 1974. The order appealed from is a Final Judgment of Foreclosure of Lien in which the court in March 1976 granted the. demands contained in the former wife’s Petition for Supplemental Judgment and Lien on Property.

The appellant, who moved to Massachusetts after his marriage was dissolved, while his former wife remained in Florida, did not attend the hearing. He did not retain counsel to represent him, but he did file an answer. He also sent mailgrams to the judge and the clerk of the circuit court where the hearing would be held, requesting that a court reporter make a record and transcript of the proceedings. It is not, however, the function of a judge or a clerk of court to obtain court reporters in civil actions, and there is no transcript of what transpired at the hearing.

Because of the lack of a transcript, this court is unable to determine precisely what the circuit judge took into consideration in arriving at his conclusions, and we are in no position to be certain that there was reversible error despite the points raised by the appellant.

We must therefore affirm the lower court. Steinhauer v. Steinhauer, 336 So.2d 665 (Fla. 4th DCA 1976).

AFFIRMED.

MAGER, C. J., and DOWNEY and ALDERMAN, JJ., concur.


text:
    Dr. Merle E. PARKER, Appellant, v. William P. LAYER, Supt. of Public Instruction, Seminole County, Florida, et al., Appellees.
    No. 76-955.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Dr. Merle E. Parker, in pro. per.
    Ned N. Julian, Jr., of Stenstrom, Davis & McIntosh, Sanford, for appellees.
   DOWNEY, Judge.

By way of interlocutory appeal appellant seeks review of an order dismissing his complaint with leave to amend. Appellant filed suit seeking to enjoin appellees (the County Superintendent of Public Instruction, The County School Board, and the principal of the allegedly offending public school) from designating a smoking area on the school premises in violation of Section 859.06, Florida Statutes (1975). The trial court granted a motion to dismiss, with leave to amend, upon the grounds that the complaint failed to state a cause of action and appellant had failed to allege standing to sue.

We have considered the record and briefs and fail to find error demonstrated.

AFFIRMED.

MAGER, C. J., and ALDERMAN, J., concur.


author: PER CURIAM. MAGER, Chief Judge

text:
    Barbara T. SUMMERLIN, as Executrix of the Estate of William H. Tinsman, Deceased, and State Farm Mutual Automobile Insurance Company, Petitioners, v. John R. EPPS, Respondent.
    No. 76-1065.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Jonathan D. Schuman, of Weathers & Narkier, West Palm Beach, for petitioners.
    Stephen N. Montalto, of Mark Marks, P. A., North Miami, and Martha C. Warner of Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for respondent.
   PER CURIAM.

The petition for writ of certiorari to review an order of the trial court denying petitioners’ motion for leave to file a counterclaim in a suit formerly cognizable at law is denied upon authority of the following decisions of this court: Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975); Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976).

We fully recognize that the Third District Court of Appeal held to the contrary on almost identical facts in Romish v. Albo, 291 So.2d 24 (Fla. 3d DCA 1974). But as the above cited decisions of this court pointed out, the kind of order now before us is reviewable on plenary appeal. If on plenary appeal reversible error is found to inhere in said order, petitioner would be entitled to litigate her proposed counterclaim. Surely under these circumstances where petitioner attempted to assert the counterclaim in this suit, the compulsory counterclaim rule would not militate against her.

Petition for Writ of Certiorari DENIED.

CROSS and DOWNEY, JJ., concur.

MAGER, C. J., dissents, with opinion.

MAGER, Chief Judge

(dissenting):

In my humble opinion the factual circumstances of this case fall squarely within the holding of Romish v. Albo, 291 So.2d 24 (Fla. 3d DCA 1974). The decisions of this court, as cited in the majority opinion, are factually distinguishable and are therefore not controlling. The criteria for granting certiorari as set forth in the opinions of this court has been met. Allstate Insurance Company v. Gibbs, Fourth District Court of Appeal, Fla.App., 340 So.2d 1202, 1976; Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976). Accordingly, cer-tiorari should be granted with leave to the petitioners to file their counterclaim.


author: ALDERMAN, Judge.

text:
    Julia Evelene JOHNSTON, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE et al., Respondents.
    No. 76-1237.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Leon B. Cheek, III, Altamonte Springs, for petitioner.
    Kenneth H. Hart, Jr., General Counsel, Tallahassee, and James R. Parks, Miami, for respondent Florida Department of Commerce Division of Employment Security.
   ALDERMAN, Judge.

A petition for writ of certiorari is presented by a former employee of Corporate Group Services, Inc. seeking review of an order of the Industrial Relations Commission which denied petitioner unemployment compensation benefits. We have jurisdiction under Article V, Section 4(b), Florida Constitution and Section 443.07(4)(e), Florida Statutes (1975).

Petitioner had been employed by Corporate Group Services, Inc. as a clerical worker. Shortly after her transfer to a new department of that corporation, she was informed by an officer of her employer that her employment- was being terminated. The reason given was that petitioner was not sufficiently qualified for her duties in the new department.

It is undisputed that petitioner was discharged from her employment. She was told on May 13, 1975 that she could work for two more weeks, and when she asked if it would hurt her in any way to leave sooner, her employer told her that it would not. Petitioner thereupon chose to leave at the end of the same day on which she was told she was being laid off. Her reasons for not wanting to stay for the remaining two weeks were that she was upset over being fired and did not want to continue in an unpleasant atmosphere.

Upon leaving her job, petitioner applied for unemployment compensation benefits and was refused. The denial of benefits was based upon the fact that she had voluntarily quit prior to the effective date of the termination notice, and therefore her quitting was without good cause attributable to her employer. The applicable statute is Section 443.06(1), Florida Statutes (1975):

“443.06 Disqualification for benefits.— An individual shall be disqualified for benefits: (1) For the week in which he has voluntarily left his employment without good cause attributable to his employer or in which he has been discharged by his employing unit for misconduct connected with his work, if so found by the division, and for not more than 12 weeks which immediately follow such week, as determined by the division in each case' according to the circumstances in each case or the seriousness of the misconduct. Provided, however, that disqualification under this subsection shall continue for the full period of unemployment next ensuing after he has left his work voluntarily without good cause or has been discharged for misconduct connected with his work and until such individual has become reemployed and has earned wages equal to or in excess of 10 times his weekly benefit amount, and provided, further, that good cause as used in this subsection shall include only such cause as is attributable to the employer or consists of illness or disability of the individual, other than pregnancy, requiring separation from his employment. An individual shall not be disqualified under this subsection for voluntarily leaving temporary employment to return immediately when called to employment by the permanent employer who temporarily terminated his employment within the previous 6 calendar months.”

In reference to the facts of this case we interpret Section 443.06(1), Florida Statutes, to mean that where an employer notifies its employee that his or her employment is being definitely terminated as of a given date, the employee has not “voluntarily left his employment without good cause attributable to his employer” if he or she chooses not to work during all or part of the period between notification and the date given by the employer as the date of termination. In such a situation the employer has fired the employee; the employee has not discharged himself, but rather, being faced with the inevitable, has decided to leave before what might be called the notice period is up. In a case of that kind, the period of voluntary unemployment is that portion of the notice period (the notice period being the time, if any, between notice of discharge and actual discharge) during which the employee chooses not to work. The employee is ineligible to receive unemployment benefits during the notice period, , for he could continue on the job if he wished. The period of involuntary unemployment begins with the date which the employer designated as the termination date when it gave the employee notice. If the employee is otherwise eligible for unemployment compensation benefits, his leaving work after he was given definite notice will not deprive him of those benefits during the period of involuntary unemployment.

The facts of this case clearly distinguish it from Quick v. North Central Florida Community Mental Health Center, 316 So.2d 301 (Fla. 1st DCA 1975). There a nurse was given a choice of resigning or being terminated. She chose to sign a letter of resignation to be effective one month later, but then she quit work immediately. The nurse, however, had a third alternative: She could have exercised a grievance procedure with her employer which might have resulted in her not being discharged at all. For that reason the termination of her employment by her employer was not definite, despite her employer’s wishes in the matter, and she was held to have voluntarily left her employment without good cause attributable to her employer.

At least in New York there have been cases which appear to conflict with our holding here. Schneider v. Levine, App. Div., 324 N.Y.S.2d 535 (1971); Berkowitz v. Levine, 41 A.D.2d 791, 341 N.Y.S.2d 239 (1973). Those cases (marked by strong dissenting opinions) are not persuasive. We prefer to cite with approval the reasoning of the Pennsylvania court in Department of Labor and Industry v. Unemployment Compensation Board of Review, 133 Pa.Super. 518, 3 A.2d 211 (1938), which involved facts similar to those of the present case.

“In our view of the case the claimant’s employment was broken or severed as a result of the act of the employer in notifying him that he would be laid off on December 24, seven days later. His leaving was due to this positive act of the employer, which was never withdrawn or modified. His leaving a few days in advance of the time fixed for his lay-off, with the employer’s full assent, cannot be construed as ‘voluntarily leaving work’, but only as anticipating by a few days, with the consent of the employer, the effective date of his dismissal. He did not leave the work of his own motion or accord, but in consequence of the action of the employer laying him off. His dismissal became effective as of December 24, 1937 ...” (At 215.)

The petition for writ of certiorari is granted. The order of the Industrial Relations Commission is quashed, and the case is remanded for further proceedings consistent with this opinion.

MAGER, C. J., and DOWNEY, J., concur.


text:
    Martin Arthur STEINHARDT, Petitioner, v. STATE of Florida, Respondent.
    No. 76-1238.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Mark R. Baer, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Certiorari denied.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


text:
    DESERET RANCHES OF FLORIDA, INC., Appellant, v. Dorothy BOWMAN, formerly Dorothy Diane Blake, et al., Appellees.
    No. 76-1359.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Philip W. Watson of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Bruce E. Chapin, Orlando, for appellees.
   ALDERMAN, Judge.

This is an interlocutory appeal from two orders of the Circuit Court of Osceola County-

The first order denied appellant’s motion to tax costs. The suit arose from a dispute over the right of the appellees to travel over appellant’s ranch in order to reach their property. Appellees had filed an amended complaint containing two counts. Count One sought to establish a prescriptive easement. Count Two was based upon a statutory way of necessity. Appellees subsequently attempted to rid themselves of Count Two of their amended complaint by filing what was entitled a “Notice of Dismissal Without Prejudice of Count II,” reciting that they did so pursuant to Fla.R. Civ.P. 1.420(a)(1). Appellant contends that the appellees inadvertently dismissed their entire lawsuit by filing this Notice of Dismissal and therefore appellant was entitled to a judgment for costs under Fla.R.Civ.P. 1.420(d). The trial court concluded that under Rule 1.420(a) a plaintiff may not dismiss less than an entire action, and held that the Notice of Dismissal was a nullity and of no effect. Appellant argues to the contrary that appellees’ “Notice of Dismissal Without Prejudice of Count II” had the automatic instantaneous effect of terminating the lawsuit and depriving the trial court of jurisdiction, except for the assessment of costs pursuant to Rule 1.420(d).

We agree with the trial court. Only an entire action may be voluntarily dismissed under Fla.R.Civ.P. 1.420(a)(1); there can be no partial dismissal, no dismissal of less than all causes of action. Dave Hess, Inc. v. Black Angus of Pompano, Inc., 288 So.2d 286, 287 (Fla. 4th DCA 1974); Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970); Scott v. Permacrete, Inc., 124 So.2d 887, 889 (Fla. 1st DCA 1960). See also Smith, Kline & French Laboratories v. A. H. Robins Co., 61 F.R.D. 24 (E.D.Pa.1973); Etablissements Neyrpic v. Elmer C. Gardner, Inc., 175 F.Supp. 355 (S.D.Tex.1959); Neiman-Marcus Co; v. Lait, 14 F.R.D. 159 (S.D.N.Y.1953); Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105 (2d Cir. 1953); Trawick, Florida Practice and Procedure § 21-2 (1975).

The proper method of deleting less than all counts from a pleading is amendment of the pleading pursuant to Fla.R. Civ.P. 1.190. Appellees attempted to do the impossible when they filed a Notice of Dismissal as to one count of a two count complaint. They should have limited themselves to filing their second amended complaint according to Fla.R.Civ.P. 1.190, omitting the undesired count. Because appel-lees’ Notice of Dismissal was a nullity, the action was not terminated by it, and the trial court was not divested of jurisdiction. Consequently appellant’s motion to tax costs was properly denied.

The remaining issue stems from the trial court’s second order which denied appellant’s motion to dismiss appellees’ second amended complaint. Appellees by their second amended complaint seek to establish a prescriptive easement over appellant’s property. Appellant argues that because there is no mention of the width of the easement in the complaint, the complaint fails to state a cause of action. We agree that the easement is not sufficiently identified and that the complaint in its present form fails to state a cause of action. This is so in spite of appellees’ careful delineation of the route and termini of the claimed easement. Particularly where rural rights-of-way of the kind alleged here are involved, width is an essential part of their description. The actual visible track may vary in width; user may vary. Appel-lees have described only the course of the alleged easement. From thé complaint the full extent of their claim cannot be determined. Are they seeking a pathway or trail adequate for a man on foot or horseback to travel, or are they claiming a right of way sufficient in width to accommodate a modern highway? We hold that it is necessary for those claiming a prescriptive easement to allege and prove its route, termini, and width. Downing v. Bird, 100 So.2d 57 (Fla. 1958). The trial court’s order denying appellant’s Motion to Dismiss is reversed with directions that appellees’ second amended complaint be dismissed with leave to amend.

AFFIRMED in part, REVERSED in part, and remanded for further proceedings consistent with this opinion.

MAGER, C. J., and DOWNEY, J., concur.

      . “Rule 1.420. Dismissal of Actions
      (a) Voluntary Dismissal; Effect Thereof.
      (1) By Parties. Except in actions wherein property has been seized or is in the custody of the court, an action may be dismissed by plaintiff without order of court (i) by serving or during trial, by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if such motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim. If a lis pendens has been filed in the action, a notice or stipulation of dismissal under this paragraph shall be recorded and cancels the lis pendens without the necessity of an order of court.”

      . “(d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed a claim in any court of this State commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.”

      . It is not clear from the record on appeal whether appellees obtained leave of court to file their second amended complaint as provided by Fla.R.Civ.P. 1.190(a); however the trial court’s denial of appellant’s motion to dismiss cured any procedural defect which might have existed.


text:
    Shirley Jean PRESS, Appellant, v. Anthony David PRESS, Appellee.
    No. 76-1553.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Rudolph Browd of McCain & Browd, Miami, for appellant.
    David M. Rogero of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS, DOWNEY and ALDERMAN, JJ., concur.


text:
    S. R. GORDON, Appellant, v. WARREN HEATING & AIR CONDITIONING, INC., etc., Appellee.
    No. 76-1584.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.

      Kenneth J. Scherer, Law Offices of Robert S. Levy, West Palm Beach, for appellant.
    Gregory B. Dickenson of Warwick, Paul & Campbell, Palm Beach, for appellee.
   ALDERMAN, Judge.

The appellee, plaintiff below, brought an action to foreclose a mechanic’s lien. Eventually appellee voluntarily dismissed the action and immediately instituted a new lawsuit based on the same mechanic’s lien. The trial court entered an order denying the appellant’s motion for attorney’s fees and costs, “without prejudice to claim the same” in the new action. The issues before us are whether the appellant is entitled to attorney’s fees and costs for the dismissed action, and if so whether a judgment for those fees and costs must be entered as soon as the original action is dismissed rather than as a part of the new action.

The controlling legislation is Section 713.-29, Florida Statutes (1975):

“In any action brought to enforce a lien under part I of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as part of his costs.”

In conjunction with the preceding we must also consider Fla.R.Civ.P. 1.420(d):

“Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed a claim in any court of this State commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.”

We hold, in accord with previous judicial interpretations of Section 713.29, Florida Statutes, that where a mechanic’s lien claim is voluntarily or involuntarily dismissed, the party against whom the claim was brought is the “prevailing party” and is entitled to recover attorney’s fees and costs. Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla.3d DCA 1975); Jackson v. Hatch, 288 So.2d 564 (Fla.2d DCA 1974); Lion Oil Co., Inc. v. Tamarac Lakes, Inc., 232 So.2d 20 (Fla.4th.DCA 1970).

Secondly, the appellant should have been awarded costs and attorney’s fees immediately following dismissal of the first action. The trial court has no authority to defer a ruling on costs pending the outcome of another action. Keener v. Dunning, 238 So.2d 113 (Fla.4th DCA 1970). Fla.R.Civ.P. 1.420(d) states unequivocally that, “Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.” (Emphasis supplied.) Furthermore, the same rule makes it mandatory, where a new action is brought on the previously dismissed claim, for the trial court to stay proceedings in that new action until its order for payment of costs of the claim previously dismissed has been complied with. This rule has the obvious salutary effect of discouraging repeated lawsuits on the same claim by exacting payment of costs before the party whose claim was dismissed is allowed to proceed with a new edition of the identical cause of action.

REVERSED and REMANDED for further proceedings consistent with this opinion.

MAGER, C. J., and DOWNEY, J., concur.


text:
    SCHMIDT MOTOR SALES, INC., a Florida Corporation, Petitioner, v. INSURANCE COMPANY OF NORTH AMERICA, a Foreign Corporation authorized to do business in the State of Florida, Respondent.
    No. 76-1754.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Petition for Writ of Certiorari to Circuit Court, Orange County; William C. Gridley, Judge.
    James R. Lavigne of Nichols & Tatich, Orlando, for petitioner.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is hereby denied.

CROSS, DOWNEY and ALDERMAN, JJ., concur.