text:
    In re the ESTATE of Samuel DONNER, Deceased. Beatrice Rosalie DONNER, Appellant, v. Paul ANTON et al., Appellees.
    Nos. 75-1569 and 76-1062.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied July 13, 1977.
    Sinclair, Louis, Siegel & Heath and Norman A. Sand, Miami, for appellant.
    Abrams, Anton, Robbins, Resnick & Schneider and David L. Kline, Hollywood, Broad & Cassel and Lewis Horwitz, Bay Harbor Island, Heller & Kaplan and Robert Golden, Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

In these consolidated appeals Beatrice R. Donner, a judgment creditor of her former husband’s estate, seeks reversal of an order granting leave to the co-executors to sell certain partnership interests of the deceased, Samuel Donner, and a subsequent order confirming the sale.

Samuel Donner, Samuel Adler, Charles Donner and Howard Mescon were owners of certain ¡undivided interests in rental apartment houses placed in various trusts. During his lifetime Samuel Donner executed a buy-sell agreement giving the other owners an option to buy his interest in these trusts in the event of his death. The agreement provided for an agreed valuation of the trust properties with periodic updates containing the revised valuations which were made to the agreement by amendments. The last amendment with the latest valuation was executed on December 1, 1972. On January 25, 1973 Samuel Donner died and in February Adler, Mescon and Charles Donner exercised their option to purchase Samuel Donner’s interest at the last valuation made on December 1, 1972. In March 1973 the co-executors petitioned for leave to sell the deceased’s interest in the trust properties and appellant objected to the sale for any sum less than full cash value. She also requested the appointment of an appraiser prior to the court’s consideration of the petition and sought the appointment of an administrator ad litem to represent the estate in this matter because of possible conflicts of interest on the part of the co-executors. Mallory Horton, Esq. was appointed administrator ad litem and directed to conduct an investigation into the validity of the buy-sell agreement. In August 1974 Mr. Horton filed his report finding the agreement to be valid and further recommending that the exercise of the option by the purchasers Adler, Mescon and Charles Donner be honored. Following further hearings, additional testimony and an agreement between the co-executors and the purchasers as to the amounts due under the buy-sell agreement, the trial judge on September 9, 1975 entered an order granting leave to sell the deceased’s interest. In the order of September 9 the trial judge found that the agreement and its amendments constituted a valid and binding agreement and there was a valid exercise of the option. Beatrice Donner perfected an appeal from this order and while this appeal was pending, the trial judge on May 10, 1976 entered an order confirming the sale. Beatrice Donner also appealed this order and both appeals were consolidated.

Appellant primarily contends that the trial judge abused his discretion in authorizing the sale of the decedent’s interest in the properties covered by the buy-sell agreement.

We find there is substantial competent evidence to support the determination that (1) the buy-sell agreement including the amendments was valid and binding; and (2) Adler, Mescon and Charles Donner validly exercised their option to purchase thereunder upon the demise of Samuel Donner. Thus, the trial judge was correct in entering the orders of September 5, 1975 and May 10, 1976. See Section 733.37, Florida Statutes (1973); Hirsch v. Bartels, 49 So.2d 531 (Fla.1950); Galatis v. Plasman, 80 So.2d 918 (Fla.1955).

We also considered appellant’s other points on appeal and conclude there is no merit therein.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Beverly A. CLAUGHTON, Appellant, v. Edward N. CLAUGHTON, Jr., Appellee.
    No. 76-2271.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied July 13, 1977.
    Paige & Catlin, Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser, Miami Beach, for appellee.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, Beverly Claughton, appeals an order sustaining her husband’s exceptions to the findings and recommendations of the special master.

Beverly Claughton was awarded $2,500 per month temporary alimony and child support and approximately one year later both Beverly and her husband, Edward, filed petitions for modification of the temporary alimony. They also requested that the matters raised in their modification petitions be referred to a general master and the chancellor entered an order granting their request. The general master conducted a hearing and filed his report recommending that the chancellor’s previous order awarding $2,500 temporary alimony and support remain unchanged with the exception that Edward should, in addition to the alimony and support award, pay Beverly’s share of the mortgage payments on the Hound Ears vacation condominium and her investment expenses on the Saga Bay and Crandon Boulevard properties. No record of the proceedings was attached to the report. Edward filed exceptions to the report and after a hearing, the chancellor entered an order sustaining his exceptions to the master’s recommendations. We reverse.

The findings of fact and recommendations of a special master should be approved and adopted by the chancellor unless clearly erroneous or it appears that the master has misconceived the legal effect of the evidence. See Hopping v. Lovejoy, 53 So.2d 704 (Fla.1951); Moncrief v. Hall, 63 So.2d 640 (Fla.1953); Frank v. Frank, 75 So.2d 282 (Fla.1954); Hartnett v. Lotauro, 82 So.2d 362 (Fla.1955); Holland v. Gross, 89 So.2d 255 (Fla.1956). In the case at bar no record of the proceedings accompanied the general master’s report or the filed exceptions. There being no record upon which to determine that the general master was clearly erroneous in his recommendations or that he misconceived the legal effect of the evidence, the chancellor should have affirmed the recommendations.

Accordingly, the order sustaining exceptions is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.


text:
    Dennis O’CONNOR, Appellant, v. Mary Louise O’CONNOR, Appellee.
    No. 77-271.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied July 13, 1977.
    Dennis O’Connor, in proper person.
    Richard C. Carter, Jr., Angelo P. Demos, Smathers & Thompson, Miami, and William C. Lewis, Coral Gables, Colson & Hicks and Bill Hoppe, Miami, for appellee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Dennis O’Connor, the former husband of Mary Louise O’Connor, appeals a post-judgment of dissolution of marriage order which (1) granted to the former wife permission of the court to remove her residence and that of the defendant children from Miami, Florida, to Memphis, Tennessee and (2) denied the former husband’s motion for contempt against the former wife for failure to make mortgage, insurance and tax payments on the former marital home.

The final judgment of dissolution of marriage gave the wife the custody of the six minor children of the marriage, awarded alimony and child support, and granted to the wife the sole use and occupancy of the marital home so long as the children are minors and reside with her and she does not remarry. The home was held as a tenancy in common.

In the Order Upon Wife’s Petition for Leave to Change Residence and Husband’s Motion for Contempt, the trial judge made the following finding of fact:

“1. The Petition for Leave to Change the Permanent Residence of the minor children of the parties is GRANTED as it is in the best interest and welfare of the minor children to allow such change, there being no substantial evidence to the contrary, and in addition, being to the financial and educational advantage of the minor children.”

The appellant has failed to bring to this court a complete record of the testimony before the trial judge. It appears from the portion of the record that is before us that the findings of the trial judge are supported by substantial evidence. Therefore, no error appears. See Section 61.13, Florida Statutes (1975). Cf. Stamm v. Stamm, 266 So.2d 413 (Fla.3d DCA 1972).

Affirmed.


author: HAVERFIELD, Judge.

text:
    Dale BOWER, Appellant, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY and Asta Membership Group Plan, Appellees.
    No. 77-469.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied July 13, 1977.
    Bolles, Goodwin, Ryskamp, Welcher & Carrier, Alfred Gustinger, Jr., Miami, for appellant.
    Steel, Hector & Davis and Patricia A. Seitz, Stuart Simon, County Atty., and Jon I. Gordon, Asst. County Atty., Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HAVERFIELD, Judge.

Plaintiff, an indigent, appeals an order denying his request for Dade County to absorb his court reporter charges in an action for breach of an insurance contract.

Dale Bower filed a breach of contract action against defendant Connecticut General Life Insurance Company and following a trial of the action, the jury entered a verdict in favor of defendant insurer. Alleging that he is indigent, Bower filed a petition pursuant to Section 57.081, Florida Statutes (1975) for payment of costs incident to the action and also payment by Dade County for the cost of preparation of the trial transcript and record of the case. Attached to the petition was an affidavit of insolvency and attorney’s certificate. On December 30, 1976 the trial judge after a hearing entered an order directing the clerk to issue a certificate of insolvency for the prosecution of an appeal to Bower relieving him from paying all clerk’s fees and court reporter charges pursuant to the above statute. Dade County, appellee herein, then filed a petition to set aside the December 30 order for the reason that Section 57.081, Florida Statutes (1975) is not applicable to costs incident to transcribing records on appeal in civil matters of this sort. The County further argued that transcribing the trial court proceedings is not a function normally performed by the clerk of the court but rather is performed by a third party, court reporters. Defendant insurer also filed the same motion adopting the grounds set forth in the County’s motion and in addition contending Bower’s affidavit and the certificate of his counsel are inadequate. On February 17, 1977 after arguments of counsel, the judge entered an order setting aside that portion of his order of December 30 requiring Dade County to absorb the court reporter charges. We affirm.

The statute in question reads in pertinent part:

“57.081 Costs; right to proceed where repayment of costs waived
“(1) Insolvent and poverty-stricken persons having actionable claims or demands shall receive the services of the courts, sheriffs, and clerks of the county in which they reside without charge. No prepayment of costs to any judge, clerk, or sheriff in the county is required in any action when the party has obtained a certification of insolvency from the clerk in each action, based on affidavits filed with him that the applicant is insolvent and unable to pay the charges otherwise payable by law to any of such officers. The affidavits shall be supported by a written certificate signed by a member of the bar of the county that he has made an investigation to ascertain the truth of applicant’s affidavit and that he believes it to be true; that he has investigated the nature of plaintiff’s claim and that in his opinion it is meritorious as a matter of law; and that he has not been paid or promised payment of any remuneration for his service and intends to act as attorney for applicant without compensation. On the failure or refusal of the clerk to issue a certificate of insolvency, applicant is entitled to a review of his application for the certificate by the court having jurisdiction of the cause of action.”

First, the statute does not include the costs of transcribing and preparing records on appeal in civil matters. Second, transcribing of the trial court proceedings is not a function or service by the court or the clerk; nor may appellant rely upon Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) and Grissom v. Dade County, 293 So.2d 59 (Fla.1974) as the case at bar involves a breach of contract action in contrast to Boddie and Grissom which presented issues involving adjustments of fundamental human relationships such as dissolution of marriage or adoption. We, therefore, affirm the February 17, 1977 order appealed. Cf. United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973).

Affirmed.


text:
    Larry LEATHERWOOD, Appellant, v. The CITY OF KEY WEST, Merle Papy, and the Insurance Company of North America, a Pennsylvania Corporation, a/k/a INA, jointly and severally, Appellees.
    No. 76-1029.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Rehearing Denied July 13, 1977.
    Larry Leatherwood, in pro. per.
    Papy, Levy, Carruthers & Poole and Sheridan K. Weinstein, Coral Gables, for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Plaintiff, Larry Leatherwood, seeks reversal of a summary final judgment entered in favor of the City of Key West and its liability insurer.

On January 5,1973 plaintiff was arrested by Merle Papy, a City of Key West police officer, on the charge of assaulting an officer and in December the charge was dismissed for Papy’s failure to appear. On April 29, 1975 plaintiff filed suit against Merle Papy, the City of Key West and its liability insurer, The Insurance Company of North America (INA), for false imprisonment, false arrest and malicious prosecution. Subsequently the service as to INA was quashed with leave to re-serve; however, INA was never reserved. Papy, Key West and INA moved for summary judgment and after a hearing, the trial judge granted summary judgment as to Key West and INA. We affirm.

The cause of action for false arrest and imprisonment accrued on the day of plaintiff’s arrest, January 5, 1973. See Gordon v. City of Belle Glade, 132 So.2d 449 (Fla.2d DCA 1961). In addition, plaintiff’s cause of action for malicious prosecution accrued at the time of dismissal of the charge against him in December 1973. See American Salvage and Jobbing Company, Inc. v. Salomon, 295 So.2d 710, 712 (Fla.3d DCA 1974). At the time the respective causes of action against the City of Key West and INA accrued, a one-year statute of limitation was in effect. See Section 95.24, Florida Statutes (1973). Thus, it is abundantly clear the plaintiff’s suit filed in April 1975 was untimely as to these two defendants. Furthermore, contrary to plaintiff’s contention that the City of Key West was estopped to plead the statute of limitations, we find the City is not so es-topped as the alleged acts, which plaintiff contends constitute an estoppel, occurred subsequent to the running of the statute of limitations. We also find no error in the entry of judgment for INA in spite of the fact it was not re-served as INA is held to the same accountability as its insured, the City of Key West, and was still under a duty to defend the City.

Affirmed.

      . “95.24 Liability of cities and villages for damages to person or property.—
      “(1) No action shall be brought against any city or village for any negligent or wrongful injury or damage to person or property unless brought within twelve months from the time of the injury or damages.”


text:
    STATE of Florida ex rel., WESLEY CONSTRUCTION COMPANY, a Florida Corporation, and Charles Brazell, Relators, v. Honorable Thomas G. O’CONNELL County Court Judge, Circuit Court Judge, Pro Tem., et al., Respondents.
    No. 77-399.
    District Court of Appeal of Florida, Third District.
    June 7, 1977.
    Rehearing Denied July 13, 1977.

      Mortimer Fried, Edward C. Vining, Jr., Miami, for relators.
    Goethel & Garcia-Vidal, Coral Gables, for respondents.
    Before HENDRY, C. J., and BARKDULL and HUBBART, JJ.
   PER CURIAM.

In the fall of 1975, the Chief Judge of the Eleventh Judicial Circuit in and for Dade County, Florida, appointed Judge Thomas G. O’Connell (a County Judge of Dade County) as Acting Circuit Judge for the period from October 13, 1975 through November 7, 1975. Said orders of appointment read, in part, as follows:

ifc Sfc Sfc 5{C # *
“ * * * to hear, conduct, try, and determine the cause or causes which shall be presented to him as a temporary and Acting Judge of said Circuit Court, and thereafter to dispose of all matters considered by him during said period.” [emphasis added]
* * * sic * *

During this period of time, Judge O’Connell tried the matter of Biscayne Construction, Inc. v. Wesley Construction Company, Circuit Court Case No. 69-10902. This culminated in a jury verdict for the plaintiff and a final judgment in its favor was entered by Judge O’Connell on November 7, 1975.

Thereafter, and without any further administrative orders assigning Judge O’Connell to duty on the circuit bench, he undertook to entertain post-trial motions filed by the parties. Early in 1977, upon motions filed by Biscayne Construction, Inc., he entered an order on a motion to impose sanctions and petition for injunction and appointment of receiver on February 22, 1977. Upon the filing of this latter order, Wesley Construction Company filed a notice of interlocutory appeal and an application for constitutional writ. Following a review thereof, the court determined to treat the matter as a suggestion for writ of prohibition; it thereupon issued a rule nisi.

The principal matter for consideration and determination in this appeal is whether or not the phrase “thereafter to dispose of all matters considered by him during said’ period” will enable Judge O’Connell to entertain and rule on motions (other than those going to the validity of the judgment, as noted in footnote [1]) presented to him after the expiration of his assignment to the circuit court.

We hold that by the very language of the administrative orders only those matters presented to him during the period of his appointment could be disposed of subsequent to the expiration of the temporary term of his appointment to the circuit court (except post-trial motions, as noted in footnote [1]). He was not appointed for a fixed term and thereafter to dispose of all motions or matters which might be presented to him subsequent to the term of his appointment, relating to the causes which he considered while sitting as a circuit judge. But, as aforementioned, the administrative order, by its very terms, limited those matters that could be considered after the expiration of the assignment period to those that had been “presented to him * * * and * * * considered by him during said period”. The Chief Judge of the Circuit could, of course (subsequent to the initial term of assignment) assign Judge O’Connell to dispose of motions to enforce the judgment in Biscayne Construction, Inc. v. Wesley Construction Company, but this he has not done by the original administrative orders entered in the fall of 1975. There is no doubt that the Chief Judge had the power to appoint Judge O’Connell as an Acting Circuit Judge and there is no doubt that Judge O’Connell qualified to sit as an Acting Circuit Judge. The problem was created by the administrative order, which is self-limiting by its very terms.

Therefore, after the expiration of November 7, 1975, Judge O’Connell was without jurisdiction to act as a circuit judge except in matters that may have been presented (except those as noted in footnote [1]) and considered by him during his period of appointment. It being apparent that the matters upon which he is purporting to act on at the present time were not presented to him during his period of assignment to the circuit bench, he is without jurisdiction to entertain and rule on them, and the rule absolute in prohibition should issue. However, a formal rule will not issue at this time, because the court is confident that Judge O’Connell will not attempt to act as a Circuit Judge pursuant to the administrative orders entered in 1975 in Biscayne Construction, Inc. v. Wesley Construction Company, Circuit Court Case No. 69-10902, in light of the above opinion.

      . Post-trial motions that go to the validity of the judgment, such as motions for new trial and petitions for rehearing, necessarily must be heard by the temporarily assigned judge because a successor or substitute judge may not overrule a predecessor judge’s action in the cause by the granting of a new trial. Lawyers Co-Operative Pub. Company v. Williams, 149 Fla. 390, 5 So.2d 871 (1942); Groover v. Walker, 88 So.2d 312 (Fla.1956); Epperson v. Epperson, 101 So.2d 367 (Fla.1958); City of Miami Beach v. Chadderton, 306 So.2d 558 (Fla. 3rd D.C.A. 1975).

      . The respondent contends that this issue was determined in Wesley Construction Company v. Biscayne Construction, Inc., 341 So.2d 786 (Fla. 3rd D.C.A. 1977). An examination of the cited opinion clearly indicates to the contrary, as the opinion contains the following:
      ‡ * 4$ * # *
      “Appellant has assigned numerous errors which it contends entitles it to a reversal of the order appealed. We, however, find no useful purpose in discussing all of the alleged errors in that the following is dispositive of this appeal.”

      . In view of the disposition of this matter, the merits of the order entered by Judge O’Connell on February 22, 1977 have not been reached in this opinion.


text:
    Ronald BROOKS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-560.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied July 18, 1977.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.

      Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The defendant appeals his conviction of assault with intent to commit robbery and sentence thereon, following trial by jury.

Defendant’s main point on appeal was that the trial court erred in admitting into evidence testimony which established that defendant had exercised his constitutional right to remain silent and failing to grant a mistrial when the prosecutor relied upon this fact as substantive evidence of guilt of the defendant in closing argument.

We need not go into the sordid details of the crime in this opinion. Suffice it to say, the prosecutor inquired of the State’s witness, the police officer who had arrived at the scene just after the stabbing of the victim occurred. The police officer testified that he inquired of the defendant and one Violente what had happened. Violente stated that “Some guy [not the defendant] came out of the back room and stabbed the victim and ran out the door.” The prosecutor then asked the police officer,

“Q. Did Mr. Brooks say anything at all when the statement was made by Mr. Violente in his presence?
* * * * * *
Q. Did he make a statement? Did Mr. Brooks say anything?
A. At that time, no.”

During closing argument the prosecutor stated:

“Additional evidence — the police officer comes on the scene of the crime .
He says, ‘What happened?’ Someone tells him. He goes into the back room, into the kitchen. This young man is seated at the table. Right next to him is the man that stabbed [the victim] many times.
What does he say? He sits there and is very quiet. The police officer says, ‘What happened?’ The other young man says, ‘A fellow ran out of the back room, tall, blond. He stabbed [the victim] several times and ran out the front door.’
That is what you heard the police officer say this young man said. The other young man [the defendant], did he jump up and say, ‘That is not true. Wait a minute, you stabbed him’? Did he say anything at all to tell the police officer what went on?
Not a word, ladies and gentlemen, because he was a part of what went on. That is why he didn’t say it.”

At the conclusion of the closing argument, defense counsel objected and moved for a mistrial on the grounds that the prosecutor had referred to the defendant’s exercise of his Fifth Amendment rights. The trial court overruled the objection and denied the motion for mistrial.

We need not determine the applicability of the Fifth Amendment rights to this case, for even if this constitutional safeguard was inapplicable here, the prosecutor’s comments during closing argument on defendant’s pre-arrest silence was so overly prejudicial to defendant’s case as to constitute reversible error. Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977). See United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).

Therefore, the judgment and sentence appealed is reversed and remanded for a new trial.


text:
    Luis VILLAGELIU, Appellant, v. The STATE of Florida, Appellee.
    No. 76-764.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.

      Angelo A. Ali and Mark R. Baer, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Joel D. Rosenblatt, Asst. Atty. Gen., and Lonworth Butler, Jr., Legal Intern, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Luis Villageliu was charged with murder in the first degree in the death of Jerry Hildeman and with assault with intent to commit murder in the first degree upon Jack Esposito, Jr. He was tried before a jury and found guilty of murder in the second degree and aggravated battery. He has appealed the judgment and sentence and presents as his points on appeal: (1) that the evidence is insufficient to support the judgment; (2) that the court unlawfully limited his cross-examination of the State’s witness, Esposito; (3) that a comment of the trial judge prejudiced his defense; (4) that the court erred in failing to consider his motion for acquittal; and (5) that the court erred in giving an instruction upon the evidentiary value of flight of the defendant from the scene. We have reviewed the record and argument after a consideration of the briefs.

The first point directed to the sufficiency of the evidence is met by the fact that the record shows beyond a reasonable doubt that after an altercation with the two victims, the defendant went to his car and returned with a baseball bat with which he beat one unarmed victim to death and injured the other. Under these facts, the defendant cannot successfully maintain his claim that self-defense appeared as a matter of law. See the rule in Mixon v. State, 59 So.2d 38 (Fla.1952); and Hayes v. Wainwright, 302 F.Supp. 716 (N.D.Fla.1969).

The second point, which claims that defendant was unreasonably restricted in his cross-examination of the victim Esposi-to, who was a witness for the State, is not supported by the record. The defendant urges that he should have been allowed to cross-examine the witness further concerning a pending charge for the possession of marijuana. The existence of the charge and the fact that the prosecutor in the present case was committed to a promise to reveal to the trial court in another (marijuana possession) case the fact that the witness had cooperated with the State in the prosecution of the present case was all made known to the jury. Appellant’s point that he should have been permitted to go further into the facts regarding the amount of marijuana involved is rendered moot because the defendant was allowed to introduce into evidence the entire file in the Esposito prosecution.

The third point is without merit because it clearly appears that the comment of the trial judge which was made out of the presence of the jury was not prejudicial to the defendant and could not, except with the aid of a most vivid imagination, be said to have intimidated anyone. Judicial comments during a trial must be carefully scrutinized for their possible effect on the jury or a witness. See the rule in Parise v. State, 320 So.2d 444 (Fla. 3d DCA 1975). Where it appears, as it does here, that the comment could not have prejudiced the defendant’s trial in any way, the comment will not be sufficient to require a new trial. Cf. Lister v. State, 226 So.2d 238 (Fla. 4th DCA 1969).

The trial judge properly refused to rule upon defendant’s motion for a judgment of acquittal made after the defendant had introduced evidence in his own behalf. See Fla.R.Crim.P. 3.380. Even if properly made, a denial of the motion was called for by the fact that the State had presented a case for the jury. Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975).

Lastly, the instruction on flight was proper upon evidence that the defendant ran from the scene of the crimes and only the next day surrendered himself to the police. See Mackiewicz v. State, 114 So.2d 684 (Fla.1959); Proffitt v. State, 315 So.2d 461 (Fla.1975); and Williams v. State, 268 So.2d 566 (Fla. 3d DCA 1972).

Affirmed.

      . The defense called Pierre DeBrosse as a defense witness. The witness completed his entire direct and cross-examination. After this, the trial judge requested that the jury leave the courtroom, which the jury did. The trial judge then inquired whether the witness was permitting persons he knew to be drunk to drive their cars from the Marco Polo Hotel in an inebriated condition. The trial judge then told the prosecutor to refer this matter to an appropriate official. After this remark, the witness was excused and the jury returned to the courtroom. Mr. DeBrosse was never recalled to the witness stand to testify further. No objection appears in the record to anything occurring during this questioning.


text:
    Victor YUANIS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-730.
    District Court of Appeal of Florida, Third District.
    June 28, 1977.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz and David L. McLeod, Asst. Attys. Gen., for appellee.
    Before HENDRY, C. J„ and BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Victor Yuanis seeks reversal of his conviction for robbery, false imprisonment and kidnapping following a non-jury trial and contends that the evidence as to his identity as the perpetrator of the crimes is insufficient, at best tenuous.

Defendant Yuanis relying upon Ross v. State, 190 So.2d 187 (Fla.3d DCA 1966) argues that the victim who identified him as the perpetrator of the crime did not have a sufficient opportunity to observe the features, voice, mannerisms or demeanor of his assailant to make a subsequent positive identification. Moreover, the evidence of identity was unsatisfactory as the victim’s identification testimony was largely uncorroborated and contradicted by the witnesses presented by the defendant.

Contrary to the contention of the defendant, the record demonstrates that the victim had ample opportunity to observe his assailant and made a positive identification of the defendant with respect thereto. Further, the defendant testified that he was, in fact, at the scene of the crime.

This case is controlled by the following holding in State v. Sebastian, 171 So.2d 893, 895 (Fla.1965):

“[4] We know of no statute or case law in this jurisdiction which requires more than one witness in a criminal case nor do we believe it proper for an appellant court to reverse a conviction of guilt upon the basis of insufficiency of the State’s evidence merely because the State produced but one witness and his testimony was contradicted by the defendant

There being conflicts in the evidence as to the identification of the defendant as being the perpetrator of the crime, the duty devolved upon the trier of the facts, in the instant case the trial judge, to resolve the conflict. See Taylor v. State, 199 So.2d 517 (Fla.3d DCA 1967). On this identity issue the record contains substantial competent evidence to support the guilty verdict and, therefore, we will not disturb the convictions on appeal. Cf. Taylor, supra; Jenkins v. State, 211 So.2d 242 (Fla.3d DCA 1968); Hargrett v. State, 255 So.2d 298 (Fla.3d DCA 1971).

Affirmed.


author: HENDRY, Chief Judge.

text:
    Jeff Lee PORTER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1162.
    District Court of Appeal of Florida, Third District.
    June 28, 1977.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   HENDRY, Chief Judge.

Appellant, defendant below, was charged by a two count information with (1) the sale or delivery of a controlled substance and (2) the possession of a controlled substance, both in violation of Section 893.13, Florida Statutes (1975). A jury found appellant guilty on both counts and he was sentenced to a term of six years imprisonment as to count one and five years imprisonment as to count two, to run concurrently with the sentence imposed in count one.

Appellant appeals his final judgment of conviction and sentence on two grounds. Appellant contents initially that the trial court erred in denying his motion for mistrial when, during closing argument, the prosecution offered “highly improper and prejudicial” comments which violated appellant’s right to a fair trial.

Secondly, appellant contends that, pursuant to our decision in Orange v. State, 334 So.2d 277 (Fla.3d DCA 1976), the trial court erred in sentencing him to separate sentences for the offenses of sale and possession of the same controlled substance (heroin), where each of the two offenses was a facet of the same transaction. In that we reverse appellant’s conviction on the basis of his first contention, we need not examine the latter.

During closing argument by the State, the following dialogue took place:

“Mr. Ginsberg: ... I submit to you, ladies and gentlemen, what if you wanted to turn this pusher on the streets again?
“Mr. Person: Objection, your Honor.
“The Court: The objection is sustained.
“Mr. Ginsberg: If you want to let this man—
“Mr. Person: Your Honor, excuse me. For the record, I move for mistrial, also.
“The Court: Motion for mistrial is denied.
“Mr. Ginsberg: If you want to put this man on the street to sell more heroin to people—
“Mr. Person: Your Honor, I objected to that and he continued.
“The Court: The objection is sustained.”

We believe that the State’s admittedly improper remarks went beyond the scope of the issues being tried and were so highly prejudicial as to deprive appellant of his right to a fair trial. Neither the court’s sustaining of appellant’s objections, nor the use of curative instructions by the bench, which were not sought by appellant nor given by the court, could have lessened the impact of those remarks. Glantz v. State, 343 So.2d 88 (Fla.3d DCA 1977); Reed v. State, 333 So.2d 524 (Fla.1st DCA 1976); Chavez v. State, 215 So.2d 750 (Fla.2d DCA 1968).

Accordingly, appellant’s conviction is hereby reversed and remanded for new trial.

Reversed and remanded.


author: HUBBART, Judge.

text:
    In re the ADOPTION OF Jennifer May RAND.
    No. 76-1750.
    District Court of Appeal of Florida, Third District.
    June 28, 1977.
    James J. Traitz, Miami, for appellant.
    No appearance by counsel for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This is an appeal from a final order denying an emancipated adopted child access to certain information in the court file of her original adoption proceeding. The issue presented for review is whether such a person must make a showing of good cause in order to obtain the release of medical information contained in such court file pursuant to Section 63.162(2), Florida Statutes (1975).

The appellant, Jennifer May Rand, filed a petition in the Circuit Court of Dade County for the release of certain records contained in the court file of her original adoption proceeding. Specifically, the appellant prayed for a court order requiring the trial judge or an appointed social worker to review the aforesaid court file and thereafter to release to the appellant the following information: the medical background of both the appellant’s natural parents, the medical reasons for their demise, their ages at appellant’s birth, their heritage, and a physical description of each, if medically pertinent. No cause is stated in the petition for the release of such information.

The record reveals that the appellant has attained her majority and is now married. Throughout these proceedings she has taken the position that good cause need not be alleged or proven for the release of the above information. The appellant specifically waived any hearing to present evidence and argument in support of her petition contending that the trial court had no discretion but to grant the said petition. The trial court denied the petition in the absence of a showing of good cause. This appeal follows.

Section 63.162, Florida Statutes (1975), provides in relevant part as follows:

“Notwithstanding any other law concerning public hearings and records: .
(2) All papers and records pertaining to the adoption, whether part of the permanent record of the court or of a file in the [department] or in an agency, are subject to inspection only upon order of' the court.
* jf< * sk * *
(4) Except as authorized in writing by the adoptive parent or the adopted child, if 18 or more years of age, or upon order of the court for good cause shown in exceptional cases, no person shall disclose from the records the name or identity of either an adoptive parent or adopted child.”

In our view, this statute does not impose a ministerial duty on the court to release all information in the court file of an adoption proceeding when requested to do so by the adopted child upon attaining his or her majority. The statute contains no language lending itself to such an interpretation.

Under subsection (4) of the statute, the adopted child upon attaining the age of eighteen may authorize in writing the release of the name or identity of the adoptive parent or adopted child contained in the court file of an adoption proceeding, but no more. Such an emancipated adopted child is not given the authority to release or demand any other information in the adoption court file. To obtain any other information, the emancipated adopted child must obtain a court order as required under subsection (2) of the statute. The trial court may grant or deny such a requested court order within its sound discretion and its decision thereon will not be disturbed on appeal absent an abuse of discretion. See: 2 FlaJur. “Appeals” § 327 (1955).

The appellant argues that the trial court has no such discretion, but must automatically grant all applications for the release of adoption file information upon demand under subsection (2) of the statute. We cannot agree. The statutory requirement herein implicitly carries with it an exercise of sound judicial discretion else the entry of such an order would be nothing more than an empty gesture hardly requiring the act of a court. The obvious purpose of such a court order is to protect the confidentiality of adoption court files against probes made for other than legitimate reasons, not to open up such files to all comers. The fact that discretion or good cause is not expressly mentioned in subsection (2) of the statute but is in subsection (4) thereof, does not change this result since such a requirement is implicit in the statute. Further, the statute contains no “shall” or other mandatory language requiring the automatic entry of such a court order. The trial judge was, therefore, eminently correct in requiring a showing of good cause before he exercised his discretion to open up the adoption court files as requested by the appellant.

We hold that information contained in an adoption court file shall not be released to anyone except upon court order within the sound discretion of the trial court under Section 68.162(2), Florida Statutes (1975). The trial court abuses its discretion herein when: (1) it refuses to release the requested information although good cause is shown, or (2) it releases the requested information although good cause is not shown. See: Utica Mutual Insurance Co. v. Clonts, 248 So.2d 511, 512 (Fla. 2d DCA 1971); Atlas Travel Service, Inc. v. Morelly, 98 So.2d 816 (Fla. 1st DCA 1957). The only exception to this holding is that the name or identity of the adoptive parents or adopted child may be released upon written authorization of the adoptive parent or adopted child, who shall have attained the age of eighteen, or upon court order for good cause shown in exceptional cases under Section 63.162(4), Florida Statutes (1975).

In the instant case, the petition for the release of the requested medical and other information in the adoption file fails to allege any facts tending to establish good cause for the release of such information. As such, the petition is fatally defective and was properly denied by the trial court.

Our affirmance herein shall be without prejudice to the appellant to refile a proper petition alleging a sufficient showing of good cause for the release of the requested information. This allegation must, of course, be established by sworn proof at any hearing on the petition.

Affirmed.


text:
    Terry F. LEVITEN and Allstate Insurance Company, appellants, v. Thomas R. GAUNT, Appellee.
    Nos. 77-315 and 77-566.
    District Court of Appeal of Florida, Third District.
    June 28, 1977.
    Talburt, Kubieki & Bradley and Robert J. Dickman, Miami, for appellants.
    Edward A. Sirkin and David S. Wieder, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

By these consolidated interlocutory appeals, we are called .upon to review the propriety of an order .denying the defendant’s (Leviten) motion to quash service of process. Service was attempted under Sections 48.161, 48.19, Florida Statutes. The several complaints filed in this cause allege that the defendant (Leviten) “is a resident of the County of Dade, State of Florida”.

We reverse. The attempted service of process was defective. First, it was invalid because the plaintiff failed to present facts which justify the application of the substituted service statute. Fleischman v. Morris, 260 So.2d 278 (Fla. 3rd D.C.A.1972). Second, the attempted substituted process was invalid because of the failure of the plaintiff to allege jurisdictional requirements in his complaint. Penn v. Ashley, 226 So.2d 351 (Fla. 1st D.C.A.1969); Exberger v. First Florida Business Consultants, Inc., 338 So.2d 561 (Fla. 2nd D.C.A.1976). Finally, purported substituted service was invalid due to the failure of the plaintiff to meet the notice requirements of the statutes. Lendsay v. Cotton, 123 So.2d 745 (Fla. 3rd D.C.A.1960); Zarcone v. Lesser, 190 So.2d 805 (Fla. 3rd D.C.A.1966); Atlas Van Lines, Inc. v. Rossmoore, 271 So.2d 31 (Fla. 2nd D.C.A.1972).

Therefore, the order denying the defendant’s (Leviten) motion to quash service of process be and the same is hereby reversed, and the cause is remanded to the trial court for the entry of an order granting the motion to quash.

Reversed and remanded, with directions.


text:
    John Wilbur CRITCHLOW, Appellant, v. Cynthia Bruce CRITCHLOW, Appellee.
    No. 77-492.
    District Court of Appeal of Florida, Third District.
    June 28, 1977.

      Marks, Keith, Mack, Lewis & Allison and John R. Allison III, Miami, for appellant.
    Paul G. Block, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Appellant John Critchlow, seeks review of a protective order preventing him from deposing his wife’s treating physicians in this child custody contest arising out of a dissolution of marriage action.

Cynthia Critchlow, appellee, filed a petition for dissolution of marriage and prayed that custody of the parties’ 3V2 year old child, Kelli, be awarded to her. John filed a counterpetition; but did not challenge Cynthia’s prayer for custody of Kelli. Cynthia subsequently was committed to a hospital for mental treatment and with leave of court, John filed an amended coun-terpetition seeking custody of Kelli due to Cynthia’s mental health. Thereafter, the parties agreed to the appointment of Dr. Richard Greenbaum, psychiatrist, to render a professional opinion as to which party is best suited to have care and custody of Kelli. After individually interviewing John, Cynthia and Kelli, Dr. Greenbaum submitted his report recommending that Cynthia be awarded custody. Pursuant to stipulation of respective counsel, each party obtained copies of Cynthia’s hospital records. Upon motion, the trial court entered an order authorizing John to take the depositions of Drs. Bond, O’Lone and Green-baum, Cynthia’s treating physicians. Cynthia did not object to this order and her counsel attended the deposition of Dr. Greenbaum by John’s counsel. Upon stipulation of respective counsel, the judge entered an agreed order authorizing John to depose Dr. Koenig, Cynthia’s childhood physician. Subsequently, an order was entered granting John temporary custody of Kelli and enjoining Cynthia from attempting to remove Kelli from John’s care. Cynthia then filed (1) a motion for protective order requesting that the depositions of Drs. Bond, O’Lone and Koenig not be taken, and (2) a motion to set aside the temporary custody order. After a hearing, the trial court entered an order denying the motion to set aside the temporary custody order; but granted the motion for a protective order. John appeals the entry of the protective order. We reverse.

Cynthia made no objection to the order authorizing the depositions of Drs. Bond, O’Lone and Greenbaum and even stipulated to the order authorizing the deposition of Dr. Koenig. Thus, we find that Cynthia waived any privilege with respect to the testimony of her treating physicians. Cf. Savino v. Luciano, 92 So.2d 817 (Fla.1957); Tibado v. Brees, 212 So.2d 61 (Fla.2d DCA 1968).

In addition, this case falls within the exception to the privileged communication between a psychiatrist and his (or her) patient as set out in Section 90.242(3)(b), Florida Statutes (1975):

“90.242 Psychiatrists as witnesses; nondisclosure of communications with patient
“(3) There shall be no privilege for any relevant communications under this section:
******
“(b) In a criminal or civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient’s death, when said condition is introduced by any party claiming or defending through or as a beneficiary of the patient. Laws 1965, c. 65-404, § 1, eff. June 25, 1965.”

In her petition for dissolution of marriage, Cynthia alleges that she is a fit and proper person to have custody of Kelli. After her voluntary commitment to the hospital for mental treatment, John filed a motion for leave to amend his counterpetition to reflect that Cynthia is not a fit and proper person to have custody because of her current emotional instability. At a hearing on this motion to amend, the issue of Cynthia’s mental condition was injected into the proceedings and Cynthia’s counsel (upon ore tenus motion) agreed to the appointment of a psychiatrist to examine her and John, and to render a professional opinion as to which party is best suited to have custody thereby introducing Cynthia’s mental condition as an element of her claim for Kelli’s custody.

We also find that Roper v. Roper, 336 So.2d 654 (Fla.4th DCA 1976) relied upon by Cynthia is not controlling because in the instant case, in contrast to Roper, Cynthia’s mental health is a highly relevant issue.

Further, in a dissolution of marriage proceeding where the issue of child custody is presented, it is incumbent upon the chancellor to evaluate, among other crucial factors, the mental health of each of the parents in making a final custody determination which is in accord with the best interest of the minor child or children. See Section 61.13(3)(g), Florida Statutes (1975). In light of Cynthia’s voluntary commitment for treatment of her mental condition, Cynthia’s mental health is vital to a proper determination of permanent custody and, therefore, Section 90.242, Florida Statutes (1975) creating the patient-psychiatrist privilege cannot be invoked under the facts in this child custody case.

Accordingly, the protective order appealed is reversed and the cause remanded to the trial court to enter an order authorizing John to take the depositions of Cynthia’s treating physicians; but limiting the scope of those examinations to communications, diagnosis and treatments insofar as Cynthia’s mental and emotional state relates to her fitness as a mother.

Reversed and remanded with directions.


author: ERVIN, Judge.

text:
    Sharon BRADLEY, Appellant, v. Reuben W. PEADEN, Appellee.
    No. DD-280.
    District Court of Appeal of Florida, First District.
    June 29, 1977.
    Joseph C. Rubel of Metzger, Viviana, Winn & Rubel, Pensacola, for appellant.
    William B. Richbourg, Pensacola, for ap-pellee.
   ERVIN, Judge.

Mrs. Bradley appeals a final judgment directing verdict in behalf of Reuben Peaden in an action seeking damages for abuse of process.

Mrs. Bradley is the niece of Mr. Peaden. A dispute arose from the sale of some scuba diving equipment owned by Peaden’s daughter and sold by Peaden to Mrs. Bradley. Following the sale, Peaden called Mrs. Bradley and told her that she had paid for only one set of the two sets of equipment which she took and she still owed $125.00 for the additional set. Mrs. Bradley testified she informed Peaden that for the $125.00 paid she intended to buy both sets. According to Mrs. Bradley, Peaden told her that if she did not pay for the equipment or return it, he was going to swear out a warrant for her arrest and with an arrest on her record she would never get a job. When she failed to return the equipment to him, Peaden signed a criminal affidavit charging her with grand larceny. Later she was tried and acquitted. Mrs. Bradley then filed an action alleging (1) malicious prosecution and (2) abuse of process. The first count of malicious prosecution was voluntarily dismissed prior to trial. At the conclusion of the presentation of evidence by Mrs. Bradley, Peaden moved for a directed verdict which was granted.

Appellant argues that where evidence is presented in a case involving abuse of process showing that the defendant used criminal process to coerce her to return certain property or pay a civil debt, the lower court erred in directing a verdict for the defendant at the close of her case in chief. We agree and reverse.

It is of course our responsibility in reviewing an order granting a motion for directed verdict to consider the evidence in the light most favorable to the nonmoving party and to indulge every reasonable inference on behalf of the nonmovant. Bittson v. Steinman, 210 So.2d 30 (Fla. 3d DCA 1968). Applying this rule to the record before us we cannot say that there were no issues of fact which could not be properly resolved by the jury. Count two of her amended complaint alleged, and the evidence presented by her, was to the effect that Mr. Peaden used criminal process in an attempt to recover from Mrs. Bradley $125.00.

This case is similar in its facts to those in Cline v. Flagler Sales Corp., 207 So.2d 709 (Fla.3d DCA 1968), in which the Third District Court of Appeal reversed summary judgment in favor of defendant as to a count charging defendant with abuse of process. There the plaintiff purchased certain goods from defendant and executed a retained title sales contract calling for monthly payments. After plaintiff fell behind in the payments, defendant employed one Schwartz to obtain collection of the amounts due. After being contacted by him, plaintiff offered to return the property; instead however Schwartz caused criminal proceedings to be instituted, leading to her arrest. Later at a preliminary hearing before a justice of the peace, the property was returned and plaintiff was not bound over for further proceedings. Thereafter plaintiff filed an action alleging malicious prosecution in two counts and abuse of process in the third count. In reversing that part of the summary judgment which had granted defendant’s motion as to the abuse of process charge, the court stated:

“In an action for abuse of process it is not essential to show a termination of the proceeding in favor of the person against whom the process was issued and used, or to show want of probable cause or malice. The cause of action consists of the willful or intentional misuse of process; a willful and intentional misuse of it for some wrongful and unlawful object, or ulterior purpose not intended by the law to effect. Nash v. Walker, Fla.1955, 78 So.2d 685; Strickland v. Commerce Loan of Jacksonville, Fla.App.1963, 158 So.2d 814; 1 Am. Jur.2d, Abuse of Process, § 4; 72 C.J.S. Process §§ 119, 120 and Annot.; 14 A.L. R.2d 322, et seq.
“In Prosser on Torts, 3rd Ed., Ch. 23, Misuse of Legal Procedure, § 115, p. 877, it is said: ‘Thus if the defendant prosecutes an innocent plaintiff for a crime without reasonable grounds to believe him guilty, it is malicious prosecution; if he prosecutes him with such grounds to extort payment of a debt, it is abuse of process.’ ” (207 So.2d at 711)

Mrs. Bradley submitted evidence which entitled her to consideration by a jury. The judgment is reversed and the cause remanded to the lower court for further proceedings not inconsistent with this opinion.

BOYER, C. J., and MILLS, J., concur.


author: OTT, Judge.

text:
    Felix LAZAR and Clare Lazar, his wife, Appellants, v. Richard ALLEN, Edward J. Mesmer, and the City of St. Petersburg, Florida, Appellees.
    No. 76-1360.
    District Court of Appeal of Florida, Second District.
    June 29, 1977.

      Ronald H. Schnell, St. Petersburg, for appellants.
    Larry D. Brown, Asst. City Atty., St. Petersburg, for appellee/City of St. Peters-burg.
    Allen P. Allweiss, Allweiss & Kay, St. Petersburg, for appellees/Allen and Mesmer.
   OTT, Judge.

This appeal involves two procedural points. First, whether the defendants’ oral motion for summary judgment on the day the case was set for trial was proper. Second, whether the plaintiffs’ failure to reply to defendants’ affirmative defense precludes an amendment to the pleadings. We answer both points in the negative.

Plaintiffs/appellants, husband and wife, were attempting to find a parking place near the Bayfront Center in St. Petersburg. There was an enormous traffic snarl due to the simultaneous opening of the symphony and circus. The appellant/husband became involved in a dispute with a policeman. At one point, the policeman grabbed him by the lapels of his jacket. The appellant was arrested for disobeying the command of an officer. He was taken to the police station and booked and his car impounded.

As a result of this arrest, a criminal trial was held in March of 1974. The jury returned a verdict of not guilty.

Following the acquittal in the criminal trial, the husband and wife/appellants filed this civil action. Their complaint contained counts in assault and battery, malicious prosecution and false arrest.

With reference to the first issue, defendants obtained a complete transcript of the aforementioned criminal case after the pretrial conference but before the date set for trial. On the morning of the trial, defendants presented the transcript of the criminal case to the trial judge. At this time, defendants orally moved for summary judgment. The motion was granted. This was error.

Fla.R.Civ.P. 1.510(c) provides in relevant part:

The motion [for summary judgment] . shall be served at least twenty days before the time fixed for the hearing.

See H. Trawick, Florida Practice & Procedure § 25.6 (1974).

Florida case law is replete with opinions which maintain the importance of “scrupulously observing the notice requirements of the Rules in connection with motions for summary judgment . . . Cleveland Trust Co. v. Foster, 93 So.2d 112, 114 (Fla.1957). As was pointed out in Cook v. Navy Point, Inc., 88 So.2d 532, 534 (Fla.1956):

A motion for summary judgment is calculated to save valuable trial time and thus to assist in securing speedy and inexpensive justice, but one object of the . . rules of procedure is to prevent surprise, and this equally praiseworthy objective should not be overlooked. [See Nielsen v. Carney Groves, Inc., 159 So.2d 489 (Fla.2d DCA 1964)].

With reference to the second issue, defendants’ answer and affirmative defenses contained the following affirmative defense:

Whatever force [was] exercised by the named Defendants was necessary and used nonmaliciously in accordance with an arrest which was lawful and based upon reasonable and probable cause.

Appellants failed to reply to this affirmative defense. Where a party files no reply to an affirmative defense, this merely denies (as opposed to avoids) the affirmative defense. See Fla.R.Civ.P. 1.110(e). Defendants contend that plaintiffs’ failure to file a reply should prevent plaintiffs from raising for the first time on appeal the contention that even if the arrest was valid the force used was excessive.

We agree that the avoidance was not properly pled. However, since we reverse the trial court on the entry of summary judgment, the' plaintiffs, on remand, should be allowed the opportunity to file a reply to the affirmative defenses. The spirit of modern procedural rules is to allow liberal amendment of pleadings. See Fla.R.Civ.P. 1.190; Cabot v. Clearwater Construction Co., 89 So.2d 662 (Fla.1956).

Nothing herein is to be construed as prohibiting the defendants from properly moving for summary judgment on remand.

This cause is therefore reversed and the summary judgment set aside. The cause is remanded for further proceedings consistent with this opinion.

BOARDMAN, C. J., and GRIMES, J., concur.


author: SCHEB, Judge.

text:
    Juanita WATSON, as Administratrix of the Estate of Charles R. Watson, Deceased, Appellant, v. LUCERNE MACHINERY AND EQUIPMENT, INC., and Central Florida Machinery Co., Inc., et al., Appellees.
    No. 76-1550.
    District Court of Appeal of Florida, Second District.
    June 29, 1977.
    David J. Williams and Craig M. Spanjers, Stanley, Durrance & Wines, Auburndale, for appellant.
    John R. Bush, Maefarlane, Ferguson & Kelly, Tampa, for Central Florida Machine Co., Inc.

      J. Julian Bennett, Winter Haven, for Lu-cerne Machinery and Equipment, Inc., James M. Fiske and Fiske-Gay Associates, Inc.
   SCHEB, Judge.

Charles R. Watson was accidentally killed in a citrus processing plant where he was employed, his head having been crushed by the rotating arm of a machine known as a “Kinsey Sampler.” Watson’s personal representative claimed the machine was defective and brought suit for damages against Lucerne Machinery & Equipment, Inc., the manufacturer of the machine; Fiske-Gay Associates, Inc. and James M. Fiske, the designers; Central Florida Machinery Co., the installer; and Royal Globe Insurance Co., the liability insurer for Central Florida Machinery Co. The trial court granted summary judgment in favor of all the defendants. This appeal by Watson’s personal representative ensued. We affirm.

Watson had been employed by Alcoma as a utility man in its citrus processing plant in Polk County for approximately a year and a half before his death. The Kinsey Sampler in use in that plant was designed to statistically select fruit for sampling as the fruit passed through the machine on a conveyer belt. The sampling was necessary in order to meet the requirements imposed by the Florida Citrus Commission. On the day he was killed, Watson was assigned the task of assuring a smooth flow of fruit into some bins. This task was usually handled by another employee who was sick that day, but Watson had performed this same task in the past. The job did not require Watson to come any closer than 10-20 feet from where he met his demise. In fact, he had been warned by his supervisors to stay away from the machine because of the dangers involved during its operation. Watson, nevertheless, assumed the difficult task of crawling into the Kinsey Sampler, thereby exposing himself to the danger of the rotating sampler arm. Though there is some dispute as to whether the motion of the sampler arm was continuous or periodic, no one disputes that the sampler arm was clearly visible.

In opposition to the defendants’ motion for summary judgment the plaintiff introduced an affidavit from an engineering expert, which said that “the guards and safety devices utilized in the construction and installation of the Kinsey Fruit Sampler were not adequate to provide reasonable protection to persons working in and around the said machine.”

While not specifically mentioned by the trial judge, both sides agree that the trial court awarded summary judgment on the basis of the principle of law enunciated in Farmhand, Inc. v. Brandies, 327 So.2d 76 (Fla. 1st DCA 1976). In Farmhand the plaintiff, Brandies, was an eighteen-year-old farmer who operated a machine known as a “Farmhand Feed Master.” The machine received and mixed feed by means of high speed rotating augers housed within a cylinder. To operate the machine it was necessary for Brandies to stand in close proximity to it. Although he was well acquainted with the danger of the whirring augers, one day Brandies’ hand was mangled when he carelessly dropped it into the cylinder while the machine was in operation.

Brandies sued the manufacturer of the machine for damages. The evidence disclosed if a simple guard plate had been installed on the machine the accident would not have occurred. The jury found in favor of the plaintiff Brandies, but the First District reversed, holding that the manufacturer of the machine could not have been liable as Brandies knowingly exposed himself to a patently dangerous condition.

In the case now before us the trial judge apparently determined that the Kinsey Sampler presented such an obvious or patent danger, and since Watson was fully aware of that danger, that there was no legal basis for imposing liability on any of the defendants.

Appellant argues that the patent danger doctrine has been abrogated by West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), wherein the Supreme Court adopted the doctrine of strict liability in tort from the Restatement (Second) of Torts, Section 402(A).

Though there is some language in Justice Adkins’ opinion in West that could be construed as reducing the patent danger doctrine from an absolute defense to a factor to be considered in apportioning the damages, we note the opinion also states:

In order to hold a manufacturer liable on the theory of strict liability in tort, the user must establish the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of the proximate causal connection between such condition and the user’s injuries or damages. 336 So.2d at 87 (emphasis supplied).

So despite the adoption of strict liability in tort for defects in manufactured goods, we must still look in this case for the existence of proximate causation between the alleged defect and the death of Watson.

Watson had been warned previously by his supervisors to stay away from the Kinsey Sampler during its operation because of its dangerous nature. There was no evidence that Watson suffered from any physical or mental impairments and his job did not require him to attend the machine.

It appears to us that Watson’s death was not a result of any defect in the Kinsey Sampler, but was solely caused instead by his own disregard of his supervisors’ warnings to stay away from a machine which presented obvious dangers during operation. His job did not require him to be in the area where he was killed; in fact, he had to kneel down and crawl under a conveyer belt to get to where he was killed. As the Supreme Court said in West, “Strict liability does not make the manufacturer or seller an insurer.” 336 So.2d at 90. See also Isaacs v. Powell, 267 So.2d 864, 866 (Fla. 2d DCA 1972). We conclude that Watson’s demise was caused solely by his own actions and was not contributed to by any defect in the Kinsey Sampler. We think, therefore, the trial court properly awarded summary judgment to the defendants.

In light of our holding it is unnecessary to address the other points raised on appeal.

Affirmed.

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

      . (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property , if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
      In adopting the doctrine of strict liability in tort, the Supreme Court discussed the fact that the Restatement expressed no opinion on whether the doctrine should apply where harm befalls persons other than users or consumers.
      The court concluded, however, that the public policy which protects the user and the consumer of a manufactured article should also protect the innocent bystander. The doctrine was thus made applicable to the user consumer or bystander.

      . Though we could have reached a similar conclusion by utilizing the patent danger rationale of Farmhand, we hesitate to do so in a situation such as this since some evidence that the machine was defective was presented to the trial court. Moreover, in the recent case of Blackburn v. Dorta, 348 So.2d 287, opinion filed May 5, 1977, the Supreme Court held that assumption of the risk has merged into comparative negligence and is no longer an absolute defense. Under Dorta it is arguable that the patent danger doctrine might be included in one of the many variations of assumption of the risk enumerated in Justice Sundberg’s opinion.


author: BOARDMAN, Chief Judge.

text:
    STATE of Florida, Appellant, v. James F. DEARDEN, Appellee.
    No. 76-1791.
    District Court of Appeal of Florida, Second District.
    June 29, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Joseph McDermott, St. Petersburg, for appellee.
   BOARDMAN, Chief Judge.

Appellant, State of Florida, brings this interlocutory appeal from the order of the trial court granting a motion to suppress made by appellee/defendant, James F. Dearden.

The sole point raised on appeal is whether the impoundment and inventory of appel-lee’s automobile were reasonable.

At the hearing on the motion only two witnesses, both police officers for the City of St. Petersburg, were called to testify: Thomas A. Gavin and Richard F. Roseberry. Officer Gavin testified that he saw appel-lee’s automobile cross the grassed area of a median strip while turning into a parking lot. The officer pulled behind appellee’s automobile which appellee had momentarily stopped. Appellee then put his vehicle in reverse and hit the front of Officer Gavin’s police cruiser. Gavin administered a field sobriety test to appellee to determine whether he was driving while under the influence of alcohol and arrested him for DWI. A warrantless inventory was undertaken at the scene to catalogue and protect the personal property in the automobile before it was moved to the police impoundment area. A small bottle containing five capsules which later proved to be barbiturates was found under the front seat of appellee’s vehicle. Appellee was the only occupant of the vehicle. He did not request an alternative to impoundment nor did the police officers suggest any.

Appellee contends that an arresting officer has an affirmative obligation to advise a person arrested while driving an automobile of alternatives to impoundment of his vehicle. While there are opinions which have held that reasonable requests as to the disposition of an arrestee’s vehicle be complied, with, case law has not gone so far as to require that a silent arrestee be consulted as to his wishes concerning the care of his property or be advised of other means of providing for removal.

From a thorough analysis of the relevant case law in Florida, Judge Scheb, in a recent opinion from this court, discerned that the essence of a lawful impoundment of a vehicle is necessity. Altman v. State, 335 So.2d 626 (Fla.2d DCA 1976). We believe that the circumstances attendant to the arrest in the case before us do not demonstrate any reasonable alternative to impoundment and that it was clearly necessary and lawful to impound appellee’s vehicle. At the time of the arrest for DWI appellee was intoxicated which would have diminished his ability to form and articulate any preference he might have had as to the disposition of his property. The automobile was stopped in the “middle line of the traffic driveway” in “a business area where it impeded traffic and commerce. . . .” which necessitated removal.

The scope of the search of appellee’s automobile was well within the boundaries of a valid inventory search. See South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

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

REVERSED and REMANDED.

McNULTY and SCHEB, JJ., concur.


text:
    STATE of Florida, Appellant, v. Manuel BASTARDO, Jr., Appellee.
    No. 77-94.
    District Court of Appeal of Florida, Second District.
    June 29, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Robert H. Grizzard, II, Bartow, for appel-lee.
   OTT, Judge.

The State appeals an order suppressing tangible evidence which the trial court found to be the fruits of an unlawful stop. The State argues that the trial court erroneously applied the more restrictive “probable cause” standard rather than the correct “well-founded suspicion” standard. We agree and reverse for reconsideration.

While on routine night patrol, Deputy Leonard observed the appellee driving an automobile with its trunk lid open. The deputy viewed a television inside the trunk. The appellee further attracted the deputy’s attention because the vehicle had Texas license plates and the appellee appeared to be of Mexican descent. Leonard had not, in his six to nine months experience in that area, noticed anyone of Mexican descent living in the area. Leonard followed the appellee until the appellee appeared to be leaving the area at which time Leonard stopped the appellee to find out what appel-lee was doing in the area and why he had a television in his trunk during the middle of the night. Although the appellee failed to produce a driver’s license, the appellee showed Leonard appellee’s social security card and gave Leonard the appellee’s local address. In the back seat of the appellee’s vehicle, Leonard observed a picture, a clock, a radio and an electric can opener. Leonard recorded this information on a report form.

No arrest was made and the appellee was permitted to go on his way.

Later, while investigating a reported burglary, Leonard was informed that a television and a picture, similar to the one that Leonard saw in the back of the appellee’s vehicle, were taken. Presumably, this information, together with that recorded on the report form, lead to appellee’s apprehension.

Under proper circumstances the police may stop a motor vehicle for reasonable investigation upon something less than probable cause to believe that the occupants have committed a crime. The proper circumstances are those which give rise to a “well-founded suspicion” that the occupants might be involved in criminal activity. State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977); State v. Spanierman, 267 So.2d 102 (Fla.2d DCA 1972). Under such circumstances it is reasonable for an officer to make a reasonable detention of the motorist for the purpose of ascertaining his identity and making inquiry into the circumstances justifiably arousing his suspicion. State v. Othen, 300 So.2d 732 (Fla.2d DCA 1974). Indeed, this is the duty of a good law enforcement officer in detecting and preventing crime.

A portion of the suppression order herein involved states that:

[T]he Court finds that the Deputy C. Leonard stopped and detained the Defendant on a mere suspicion, thus the case of State v. Rhiner [Rheiner] [sic] [Fla.App.], 297 So.2d 130, is controlling and further applying the test of probable cause, Deputy Leonard did not have probable cause to detain the Defendant . (emphasis supplied)

It is obvious that the trial court applied the probable cause standard. This would not be error if the trial court also determined that the stop failed to satisfy the “well-founded suspicion” test. Thus, the precise issue presented is whether the trial court’s use of the phrase “mere suspicion” was intended to mean suspicion less than a “well-founded” suspicion. We think not. We interpret the trial court’s use of that phrase to mean that the stop was grounded on “mere” suspicion as compared to probable cause. This interpretation is borne out by the trial court’s reliance on the probable cause test applied in State v. Rheiner, 297 So.2d 130 (Fla.2d DCA 1974), which the trial court felt was controlling. In Rheiner this court held .that the defendant’s arrest was made without probable cause and that evidence seized as a result of a search incident to that arrest should have been suppressed. In the case at bar, there was no arrest requiring probable cause. Under the circumstances here presented, the trial court could justifiably find that the stop was predicated upon a well-founded suspicion. Accordingly, we remand for reconsideration in the light of this opinion and the appropriate standard.

In passing, we are confident that should the trial court find that the stop was made without well-founded suspicion, the trial court will consider the question of what evidence, if any, was actually the fruit of the unlawful stop. The record before us discloses that at least the driver, vehicle, license plate, and the television in the trunk were observed by the officer prior to the stop.

McNULTY, Acting C. J., and GRIMES, J., concur.


text:
    Jenny PHILLIPS, a minor, by and through her father and next friend, Verldon Phillips and Verldon Phillips, Individually, Plaintiffs, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Victoria Brickler and Ethel Evans, Defendants.
    No. 77-261.
    District Court of Appeal of Florida, Second District.
    June 29, 1977.
    David A. Maney, Gordon & Maney, Tampa, for plaintiffs.
    Thomas J. Ellwanger, Fowler, White, Gil-len, Boggs, Villareal & Banker, Tampa, for defendants.
   SCHEB, Judge.

The Circuit Court for the Thirteenth Judicial Circuit has certified the following question to this court pursuant to Fla.App. Rule 4.6(a):

IS THE CONTINGENT FEE AGREEMENT BINDING ON THE MINOR CHILD OR IS IT THE DUTY OF THE COURT TO SET A REASONABLE ATTORNEY’S FEE FOR SERVICES RENDERED TO THE MINOR CHILD WITHOUT REGARD TO THE CONTINGENCY AGREEMENT?

In certifying the question to this court, the trial judge set forth the facts as follows:

This personal injury action was settled by the parties before trial. The action was brought by the plaintiff-father and next friend of the injured minor child. The only remaining matter pending before the Court is a petition for approval of settlement of the minor’s claim and the petition also seeks Court approval of an attorney’s fee for services rendered to the minor child in an amount equal to 40% of the gross recovery, and this claim for attorney’s fee is based upon a contingent fee agreement between the father of the minor child and the attorney.
The minor child was not a party to the contingent fee agreement and there has been no prior Court approval of the contingent fee agreement with respect to the minor. The gross amount of the proposed settlement for the minor child is $4,500.00 and consequently it is not necessary under the statute to require the appointment of a guardian.
The Court believes that the question certified is one without any controlling precedent in the State of Florida. The Court’s own research indicates little harmony in the decisions of foreign jurisdictions passing on the question.

It appears that an answer to the certified question will facilitate the proper disposition of this cause, and therefore the question is one we should answer. Fla.App. Rule 4.6(a).

The circuit court has the inherent jurisdiction and right to protect minors and their property. Thus, the trial court’s authority is sufficiently broad to determine whether a contract on behalf of a minor for payment of legal fees is reasonable.

The next friend of a minor has power to act on that minor’s behalf and, where necessary, to conduct litigation to enforce the claims of a ward. Garner v. Schilling, 128 Fla. 353, 174 So. 837 (Fla.1937). When a next friend or guardian seeks recovery for damages resulting from personal injuries to a minor, it is frequently both desirable and advantageous to employ an attorney under a contingent fee contract. Contingent fee arrangements in cases of this type, where reasonable, are recognized under Fla. Bar Code Prof.Resp., E.C. 2-20. Reasonable contingent fee contracts have been upheld by our Supreme Court. Cone v. Benjamin, 157 Fla. 800, 27 So.2d 90 (1946).

Accordingly, a contingent fee arrangement entered into on behalf of a minor will be binding on the minor if the trial court determines: 1) that it was reasonably necessary to employ an attorney on behalf of the minor; and 2) that the contract by which the attorney was employed was fair and reasonable at the time it was entered into.

Here, a minor was injured in an accident. The trial judge must first ascertain if it was necessary for the next friend to employ an attorney on behalf of the minor. Then he must determine if employment by means of a contingent fee contract was appropriate. We defer to the trial court to determine whether the next friend’s decision to employ an attorney on a contingent fee basis was reasonable and if so whether the specific contract of employment was fair and reasonable under the circumstances.

Accordingly, we remand this cause to the trial court for further proceedings consistent with this opinion.

McNULTY, Acting C. J., and GRIMES, J., concur.

      . The contingency fee arrangement provided that the attorney is to receive one-third of any recovery if the claim is “settled without suit or demand for arbitration,” and 40% “in the event suit or demand for arbitration is filed.” Since suit was filed, the attorney’s claim is for 40% of the gross settlement.

      . The trial judge’s reference appears to be to Sec. 744.387(2), Fla.Stat. (1975), effective January 1, 1976. This statute allows the natural guardian (parent) of a minor to settle a claim on the minor’s behalf that does not exceed $5,000, without the appointment of a legal guardian and without posting bond.

      . Our circuit courts have the constitutional jurisdiction to control and protect minors and their property. Art. V, § 5, Fla.Const. The trial judge continues to exercise the historic role of the chancellor, which allows him broad discretion in making orders for the protection of minors. See Fisher v. Guidy, 106 Fla. 94, 142 So. 818 (1932).

      . In Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (1942), a contingency fee of one-third of the amount recovered was found to be reasonable. On the other hand, in McCreary v. Joel, 186 So.2d 4 (Fla.1966), a contingency fee of two-thirds of the amount recovered was held to be unreasonable.


author: RAWLS, Acting Chief Judge.

text:
    Bernard BERKLEY, Petitioner, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent.
    No. BB-181.
    District Court of Appeal of Florida, First District.
    June 30, 1977.

      Thomas G. Pelham, Brown, Pelham, McDonnell & Hart, Tallahassee, for petitioner.
    Ross A. McVoy, Tallahassee, for respondent.
   RAWLS, Acting Chief Judge.

Petitioner Berkley challenges an order entered by respondent, Department of Environmental Regulation (department) denying his application for a permit to construct a seawall and fill his privately owned lands.

The following two points posed by petitioner viz:

The department erroneously denied Berk-ley’s application on the ground that it did not comply with the requirements of Section 258.165, Florida Statutes, the Biscayne Bay Aquatic Preserve Act. and
Berkley established by the overwhelming weight of the evidence that his proposed filling is necessary to enhance the utility and quality of the preserve,

are meritorious.

In 1974, by enactment of Chapter 74-171, the legislature created the Biscayne Bay Aquatic Preserve. The subject property is located within the boundaries set forth in said chapter. Section 258.165(8)(b), Florida Statutes, provides, inter alia:

“(b) No further dredging or filling of submerged lands of the preserve shall be approved or tolerated by the Board of Trustees except:
2. Such other alteration of physical conditions as may be necessary to enhance the quality or utility of the preserve.

In reviewing petitioner’s application the hearing officer and the secretary, in adopting the hearing officer’s recommendations with modification in the final agency order, found that the Biscayne Bay Aquatic Preserve Act was applicable to the subject property.

A comprehensive Florida Aquatic Preserve Act incorporating previously established aquatic preserves, including the Biscayne Bay Aquatic Preserve, was enacted by the legislature in 1975 (Chapter 75-172). This later act expressly excludes all privately owned submerged lands with the provision that the board (Board of Trustees of Internal Improvement Trust Fund) “may negotiate an arrangement with any such private owner by which such land may be included in the preserves.” The hearing officer, in his recommended order, found that the following language in Section 258.-39, Florida Statutes, viz:

“(11) Biscayne Bay-Cape Florida to Monroe County Line Aquatic Preserve, as described in the Official Records of Dade County in Book 7055, pages 852-856, less, however, those lands and waters as described in s. 258.165.”

“specifically exempts therefrom those lands and waters as described in Section 258.165, Florida Statutes, which is the Biscayne Bay Aquatic Preserve Act. Accordingly, the Biscayne Bay Aquatic Preserve Act is expressly excluded from Chapter 75-172, Laws of Florida [Sections 258.35-258.46, Fla.Stat.].” He erred. The language above quoted clearly exempts the Biscayne Aquatic Preserve from the boundaries of the newly established Biscayne Bay-Cape Florida to Monroe County Line Aquatic Preserve. However, it does not exclude the Biscayne Bay Aquatic Preserve from the provisions of the later act. Subsection (27) under the same Section 258.39 specifically includes “the Biscayne Bay Aquatic Preserve, as established by s. 258.165” as being within the purview of the Florida Aquatic Preserve Act.

The rule of statutory construction applicable to the two statutes now being considered was cogently stated in Sparkman v. State:

“ . . . Where there is material repugnance in statutory regulations, or where there is anything from which an intent that a later act shall supersede a prior act may be fairly inferred, it will be given that effect, particularly when the later act covers a broader general subject and contains a portion of the particular provisions of the former act, and adds to some portions and omits other portions of such particular provisions so as to make such particular regulations contained in the prior act conform to the purpose and policy of the later act, covering a broader subject, including the lesser.” (emphasis supplied)

The 1974 Biscayne Bay Aquatic Preserve Act encompassed only a single subject, the Biscayne Bay Aquatic Preserve, which incorporated the “body of water in Dade and Monroe Counties known as Biscayne Bay”. Thus, all property privately owned and publicly owned was included by the terms of the 1974 act (except those submerged lands conveyed to the United States for the establishment of the Biscayne National Monument). The Florida Aquatic Preserve Act of 1975 established aquatic preserves among numerous areas of Florida’s extensive sea-shorelines. Thus, the later act is a subsequent general act that specifically defined “Boundaries of preserves” as:

“the submerged lands included within the boundaries of Dade . Monroe . . . Counties, as hereinafter described [the Biscayne Bay Aquatic Preserve, as established by s. 258.165] with the exception of privately held submerged lands lying landward of established bulkheads . . ..” (emphasis supplied)

The subject lands admittedly being privately held and lying landward of the established bulkhead, the provisions of Section 258.39, Florida Statutes, clearly excluded them from the Biscayne Bay Aquatic Preserve Act of 1974. In view of our construction of the foregoing statutes, we do not reach petitioner’s constitutional question.

We next consider the evidentiary question. The subject property was conveyed to Berkley on April 17, 1974, by his immediate predecessor in title who acquired same by a conveyance from the Board of Trustees of the Internal Improvement Trust Fund in 1964. The application by Berkley sought to fill approximately two acres seaward of uplands owned by him to the established bulkhead line with material to be hauled in from uplands. This property is the only privately owned submerged land in the area that has not been bulk-headed and filled. At the evidentiary hearing upon his application, Berkley submitted the testimony of two highly qualified expert witnesses, Dr. Howard Teas and Mr. George Love. A biological report on the San Souci Estate Site on Biscayne Bay (the subject property), authored by Dr. Teas, was introduced into evidence. The testimony of Dr. Teas explained in detail a survey made of the property to see what appeared to be biologically valuable, which substantially reflected the following: That the subject submerged property has been in years past substantially altered by the excavation of large pits; that the crux of his findings, from a biological view, was the extreme depths of the water (the water is rarely clear enough to see more than six feet); by diving he found depths up to 20 feet just offshore; in checking dissolved oxygen levels with a calibrated probe at six stations, he consistently found a deficiency of oxygen below a standard minimum of five parts per million — the bottoms were anaerobic. In summary, Dr. Teas testified that in the current state, the water quality of the area is poor and unproductive. Mr. George Love testified in detail as to the engineering plans for containing storm water on Berkley’s property after same was filled. At one point he categorically stated: “ . . .no storm water will go into the Bay directly.” This witness further testified that there “will be a vast improvement over what’s there now, because in the case of a vary hard rain, a considerable amount of runoff now exists from the land into the Bay.” The evidence reflects that Dr. Teas and Mr. Love worked closely in devising the proposed plan for mangrove plantings and rip rap construction that will encourage aquatic growth, which plan had been accepted and approved by Berkley.

Mr. Brian Barnett, the sole witness adduced by the department, testified that he was employed by the Game and Fresh Water Fish Commission as an environmental specialist. His testimony was that the area is basically in nature to that which Dr. Teas testified to. This witness further stated that a field representative of the commission had told him that the shoreline area of Biscayne Bay was a relatively productive area. As to Berkley’s proposed rip rap plan, Mr. Barnett stated that his department had not envisioned:

“ a, plan as ambitious as this one, basically because the cost involved in this one usually would not be undertaken by a developer, just because some State agency thinks it’s a great idea, put mangroves in or put seedlings, but it’s certainly a great improvement Over at least what is typically done, yes.”

The only other evidence offered in opposition to the application was a letter from the Game and Fresh Water Fish Commission and a letter from the Department of Natural Resources. These letters basically set forth unsupported conclusions of adversé effect.

The secretary adopted the hearing officer’s recommendations with modifications which are not material to our conclusion; such final agency action being primarily founded upon the provisions of Section 258.-165, Florida Statutes, which we have previously concluded is not applicable to the subject property.

It is well settled that we may not substitute our judgment for the agency; however, it is our responsibility to determine whether the findings of fact and conclusions of law of the agency are supported by competent substantial evidence and to set aside such action which is not so supported. This record with clarion clarity demonstrates the necessity for judicial review of final administrative action which ignored the almost uncontroverted testimony adduced by the petitioner. Clearly, the manifest weight of the evidence presented by Berkley required a finding that the project would enhance quality or utility of the preserve. At the final hearing before the secretary of the department, counsel for the department cogently summarized the evidence in this proceeding when he stated:

“Mr. Berkley wants to fill may be two acres or a little less than that actually, but he’s willing to go out and improve and enhance outside his project. He is willing to go out and do a project that will actually enhance the bay and in my judgment improve the habitat that was lost. He’s willing to put in rip raps and mangroves and take the deep anoxic areas, fill them in so that the grasses can come back, and improve and actually enhance the bay.
“The thing that I thought was perhaps most impressive — it’s a sparsely vegetated bottom right now. The most that it has to offer, as the Game and Fresh Water Fish commented, that there was a feeding habitat there but this will be replaced.”

Assuming, arguendo, that Section 258.-165, Florida Statutes, is applicable to Berk-ley’s property, we find that the department erred in denying the instant application.

The petition for review is granted and the final order of the Department of Environmental Regulation is quashed with directions that the department grant Berk-ley’s application.

McCORD, J., and McDONALD, PARKER LEE, Associate Judge, concur.

      . Section 258.165, Fla.Stat. (1975).

      . Sections 258.35-258.46, Fla.Stat. (1975).

      .Section 258.40(1), Fla.Stat. (1975).

      .It is significant that this subsection also defines the Pinellas County Aquatic Preserve and Boca Ciega Aquatic Preserve. This subsection provides as to the Pinellas and Boca Ciega Aquatic Preserves: “If any provision of this act is in conflict with the aquatic preserves established by s. 258.16, chapter 72-663, Laws of Florida, or s. 258.165, the stronger provision for the maintenance of the aquatic preserve shall prevail.” The above quoted subsection does not provide and is void of any language that the old Biscayne Bay Aquatic Preserve Act will control if in conflict with the later statute.

      . Sparkman v. State, 71 Fla. 210, 71 So. 34, 39 (1916).

      . Section 258.39, Fla.Stat. (1975).

      . Sec. 258.39, Fla.Stat., also provides in the last paragraph of this section: “Any and all submerged lands theretofore conveyed by the Trustees of the Internal Improvement Trust Fund . . . and any and all uplands now in private ownership are specifically exempted from this dedication.”

      . Petitioner further argues that: “The Biscayne Bay Aquatic Preserve Act, assuming that it is applicable to Berkley’s application, is unconstitutional.” As noted, the act purports to place the burden upon a private landowner to demonstrate that filling submerged land will “enhance the quality or utility of the preserve” prior to the granting of a permit to fill. The Supreme Court in Zabel v. Pinellas County Water and Nav. Con. Auth., 171 So.2d 376 (Fla.1965), in an extensive opinion, established that such a statutory burden would render the statutory provision unconstitutional.

      . Berkley contends at the outset that pursuant to this court’s opinions in Askew v. Taylor, 299 So.2d 72 (Fla. 1st DCA 1974), and Kirk v. Gables By the Sea, Inc., 251 So.2d 880 (Fla. 1st DCA 1971), that the department is estopped from denying his permit. In support of this argument, Berkley contends that the record reflects that at the time his predecessor in title purchased the subject property from the Trustees that it was the intention of the parties filling would take place out to the bulkhead line, citing the following finding of the hearing officer’s recommended order:
      “The property in question was conveyed to Berkley’s immediate predecessors in title by the Trustees in 1964' pursuant to a contract for land purchase executed in 1961. The Trustees contracted to sell, and sold, the property to Berkley’s predecessor in title after receiving the buyer’s application to purchase which expressed the buyer’s intent to bulkhead and fill the property. At the time in question all submerged land sold by the
      Trustees was with the understanding that the property would be bulkheaded and filled.” In view of our decision herein, we find it unnecessary to pass upon this point posed by Berk-ley.

      . Dr. Teas, a professor of biology at the University of Miami and biology consultant, is the holder of a bachelor’s degree in biology from Louisiana State University; a master’s degree in biology from Stanford; and a doctorate in biology from the California Institute of Technology. He has conducted extensive biological research in the Biscayne Bay area with federal support on the productivity of Biscayne Bay, grassbeds activity, and the productivity of mangrove areas. He is also the author of several publications on mangroves and estuarive matters.

      . Mr. George Love is a graduate engineer from Georgia Tech and has practiced his profession for 35 years.

      . The testimony of Dr. Teas was supported by the deposition of Mr. William Kidd, a professional engineer who was Executive Director of the Trustees of the Internal Improvement Trust Fund at the time the subject property was sold to Berkley’s predecessor in title. Mr. Kidd testified that it is essential that bulkheads be completed in order to obtain a smooth, uniform bulkhead line. Otherwise, jagged recessed areas such as the property in question are created which collect debris and trash and cause sanitation problems. According to Mr. Kidd, the filling of the land on each side of the property and the existence of two spoils fingers have further affected the property by removing it from normal flushing action of the bay’s waters. In Mr. Kidd’s opinion, the bulkheading and filling of the property are necessary to prevent the collection of garbage and trash and to facilitate the rapid flow of water along the shore in order to flush out potential pollutants.

      . Mr. Barnett is a graduate of the University of South Florida and holds bachelor’s and master’s degrees from that institution.