author: HATCHETT, Justice.

text:
    CONTRACTORS AND BUILDERS ASSOCIATION OF PINELLAS COUNTY et al., Petitioners, v. CITY OF DUNEDIN, Florida, Respondent.
    No. 47662.
    Supreme Court of Florida.
    Feb. 25, 1976.
    Rehearing Denied April 2, 1976.

      John T. Allen, Jr., St. Petersburg, for petitioners.
    C. Allen Watts, of Fogle & Watts, De-land, for respondent.
    Ralph A. Marsicano and Burton M. Mi-chaels, Tallahassee, for the Florida League of Cities, Inc., amicus curiae.
    Thomas G. Pelham of Brown, Smith, Young & Pelham, Tallahassee, for the National Home Builders Association, amicus curiae.
   HATCHETT, Justice.

In an action for declaratory judgment, brought against the City of Dunedin in Circuit Court, provisions of certain ordinances were adjudged defective, as being an ultra vires attempt by the city to impose taxes; and the city was enjoined from collecting fees the ordinances required as a precondition for municipal water and sewerage service. In addition, the Circuit Court ordered the City to refund the fees, but only to persons who had paid under protest. On appeal to the District Court of Appeal, Second District, that court reversed the circuit court judgment, City of Dunedin, Florida v. Contractors and Builders Association of Pinellas County, etc. et al., 312 So.2d 763; and, on June 10, 1975, certified that its decision passed upon a question of great public interest. As is customary in cases where such certificates have been entered, we exercise our discretion to review on its merits the decision below. E. g., Grant v. State, 316 So.2d 282 (Fla.1975); Winston v. State, 308 So.2d 40 (Fla.1974) (reh. den. 1975). See Fla.Const. art. V, § 3(b) (3).

Plaintiffs in the trial court, petitioners here, are building contractors, an incorporated association of contractors, and owners of land situated within the city limits of Dunedin. They do not complain of all the fees Dunedin requires to be collected upon issuance of building permits, but contend that monies which the city collects and earmarks for “capital improvements to the [water and sewerage] system as a whole” (R. 725) constitute taxes, which a municipality is forbidden to impose, in the absence of enabling legislation. It is agreed on all sides that “a municipality cannot impose a tax, other than ad valo-rem taxes, unless authorized by general law,” 312 So.2d at 766, and that no general law gives such authorization here. Respondent contends that these fees are not taxes, but user charges analogous to fees collected by privately owned utilities for services rendered. For the reasons stated in Judge Grimes’ scholarly opinion, we accept this analogy, but we decline to uphold a revenue generating ordinance that omits provisions we deem crucial to its validity. We are unpersuaded, moreover, that the limitations, which the city has in fact placed on fees collected pursuant to Dunedin, Fla., Code §§ 25-31, 25-71 (c) and (d), can suffice to make those fees “just and equitable”, within the meaning of Fla.Stat. § 180.13(2) (1973). In principle, however, we see nothing wrong with transferring to the new user of a municipally owned water or sewer system a fair share of the costs new use of the system involves.

Petitioners contend that Dunedin has imposed a tax under the guise of setting charges for water and sewer connections, relying on Broward County v. Janis Development Corp., 311 So.2d 371 (Fla. 4th Dist.1975) aff’g Janis Development Corp. v. City of Sunrise, 40 Fla.Supp. 41 (17th Cir. 1973); Pizza Palace of Miami v. City of Hialeah, 242 So.2d 203 (Fla. 3d Dist. 1972); and Venditti-Siraro, Inc. v. City of Hollywood, 39 Fla.Supp. 121 (17th Cir. 1973). The Pizza Palace case is wholly inapposite, and the others are readily distinguishable. Only if the moneys collected in Venditti-Siraro and Janis Development had been used to underwrite the administrative costs of issuing building permits, or other costs incurred in enforcing building codes, would those cases be analogous to the present one. Compare State ex rel. Harkow v. McCarthy, 126 Fla. 433, 171 So. 314 (1936) with City of Panama City v. State, 60 So.2d 658 (Fla.1952). The analogy would be very close if the fees had been earmarked for future capital outlay: for example, acquisition of automobiles for building inspectors to use in their work.

But the fees in Janis Development and Venditti-Siraro bore no relationship to (and were greatly in excess of) the costs of the regulation which was supposed to justify their collection. In each case, the fees were required to be paid as a condition for issuance of building permits. In the Janis Development case, $200.00 per dwelling unit built was put into a fund for road maintenance. In Venditti-Siraro, one percent of estimated construction costs went into a fund for parks. Because the surcharges were collected for purposes extraneous to the enforcement of the building code, the courts concluded that the surcharges amounted in law to taxes, which the municipalities had not been authorized to impose. In contrast, evidence was adduced here that the connection fees were less than costs Dunedin was destined to incur in accommodating new users of its water and sewer systems. We join many other courts in rejecting the contention that such connection fees are taxes.

The avowed purpose of the ordinance in the present case is to raise money in order to expand the water and sewerage systems, so as to meet the increased demand which additional connections to the system create. The municipality seeks to shift to the user expenses incurred on his account. A private utility in the same circumstances would presumably do the same thing, in which event surely even petitioners would not suggest that the private corporation was attempting to levy a tax on its customers.

Under the constitution, Dunedin, as the corporate proprietor of its water and sewer systems, can exercise the powers of any other such proprietor (except as Fla.Stat. §§ 180.01 et seq., or statutes enacted hereafter, may otherwise provide.) Municipal corporations have “governmental, corporate and proprietary powers’’ and “may exercise any power for municipal purposes, except as otherwise provided by law.” Fla.Const. art. VIII, § 2(b); City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801 (Fla.1972). “Implicit in the power to provide municipal services is the power to construct, maintain and operate the necessary facilities.” Cooksey v. Utilities Commission, 261 So.2d 129, 130 (Fla. 1972). There are no provisions in Chapter 180, Florida Statutes, expressly governing capital acquisition other than through deficit financing, but it is provided that the “legislative body of the municipality . may establish just and equitable rates or charges” for water and sewerage. Fla.Stat. § 180.13(2) (1973). See generally Annot., 61 A.L.R.3d 1236, 1248-1259 (1975).

When a municipality sells debentures as a means of financing the extension or enlargement of a public utility, the indebtedness thus incurred is eventually made good with utility revenues; and anticipated revenues “may be pledged to secure moneys advanced for the . . . improvement.” Fla.Stat. § 180.07(2) (1973). When money for capital outlay is borrowed, water and sewer rates are set with a view towards raising the money necessary to repay the loan. State v. City of Tampa, 137 Fla. 29, 187 So. 604, 609 (1939); State v. City of Miami, 113 Fla. 280, 152 So. 6 (1933) (reh. den. 1934) (“certificates of indebtedness are payable as to both principal and interest solely out of a special fund to be created . . . out of the net earnings” At 13).

Water and sewer rates and charges do not, therefore, cease to be “just and equitable” merely because they are set high enough to meet the system’s capital requirements, as well as to defray operating expenses. State v. City of Tampa, supra; State v. City of Miami, supra. We see no reason to require that a municipality resort to deficit financing, in order to raise capital by means of utility rates and charges. On the contrary, sound public policy militates against any such inflexibility. It may be a simpler technical task to amortize a known outlay, than to predict population trends and the other variables necessary to arrive at an accurate forecast of future capital needs. But raising capital for future use by means of rates and charges may permit a municipality to take advantage of favorable conditions, which would alter before money could be raised through issuance of debt securities; and the day may not be far distant when municipalities cannot compete successfully with other borrowers for needed capital. The weight of authority supports the view that raising capital for future outlay is a legitimate consideration in setting rates and charges. Hayes v. City of Albany, 7 Or.App. 277, 490 P.2d 1018 (1971); Hartman v. Aurora Sanitary District, 23 Ill.2d 109, 177 N.E.2d 214 (1961); Home Builders Ass’n of Greater Salt Lake v. Provo City, 28 Utah 2d 402, 503 P.2d 451 (1972).

It is also established that differential utility rates and charges may be “just and equitable”. Fla.Stat. § 180.13(2) (1973); Hayes v. City of Albany, supra, notwithstanding the differential. In Brandel v. Civil City of Lawrenceburg, 249 Ind. 47, 230 N.E.2d 778 (1967), the court upheld an ordinance setting differential connection charges where two distinct sewerage systems had been engineered in the same political entity. The user connecting to the more expensive system paid a higher connection charge. Another common type of differential charge makes the character of the user determinative of utility rates:

In determining reasonable rate relationships, a municipality may sometimes take into account the purpose for which a customer receives the service. . Courts have recognized that differences in sewer use rates for residential customers and various other customers may be reasonable. Some customers may be subject to a flat rate while other customers are subject to rates based on water consumption or type and number of receptacles. Rutherford v. City of Omaha, 183 Neb. 398, 160 N.W.2d 223, 228 (1968) (authorities omitted)

Dunedin distinguishes between residential and commercial users, on one hand, and industrial users,' on the other. See ante, pp. 316-317 n. 1, and petitioners do not question this distinction. Here the issue is whether differential connection charges are “just and equitable”, when they vary depending on the time at which the connection to the utility system is made.

Raising expansion capital-by setting connection charges, which do not exceed a pro rata share of reasonably anticipated costs of expansion, is permissible where expansion is reasonably required, if use of the money collected is limited to meeting the costs of expansion. Users “who benefit expecially, not from the maintenance of the system, but by the extension of the system . . . should bear the cost of that extension.” Hartman v. Aurora Sanitary District, supra, 177 N.E. 2d at 218. On the other hand, it is not “just and equitable” for a municipally owned utility to impose the entire burden of capital expenditures, including replacement of existing plant, on persons connecting to a water and sewer system after an arbitrarily chosen time certain.

The cost of new facilities should be borne by new users to the extent new use requires new facilities, but only to that extent. When new facilities must be built in any event, looking only to new users for necessary capital gives old users a windfall at the expense of new users.

When certificates of indebtedness are outstanding, new users, like old users, pay rates which include the costs of retiring the certificates, which represent original capitalization. State v. City of Miami, supra. New users thus share with old users the cost of original facilities. For purposes of allocating the cost of replacing original facilities, it is arbitrary and irrational to distinguish between old and new users, all of whom bear the expense of the old plant and all of whom will use the new plant. The limitation on use of the funds, shown to exist de facto in the present case, has the effect of placing the whole burden of supplementary capitalization, including replacement of fully depreciated assets, on a class chosen arbitrarily for that purpose.

In Hayes v. City of Albany, supra, the situation was very much like the situation here. An existing system faced the imminent prospect of expansion and, as of a date certain, residential connection fees climbed from $25 to $255. (An hypothetical industrial user’s charges soared from $200 to a prohibitive $400,000.) These charges were to be deposited in a fund restricted as follows:

All monies received from the Sewer Connection Charges plus interest, if any, shall be deposited in the Sanitary Sewer Capital Reserve Fund . . . and shall be expended from that fund only for the purpose of making major emergency repairs, extending or oversizing, separating, or constructing new additions to the treatment plant or collection and interceptor systems. 490 P.2d at 1020.

If the ordinance in the present case had so restricted use of the fees which it required to be collected, there would be little question as to its validity. We conclude that the ordinance in the present case cannot stand as it is written.

The same considerations which underlie statutes of frauds require that a revenue producing ordinance explicitly set forth restrictions on revenues it generates, where such restrictions are essential to its validity. As between private parties, a contract “that is not to be performed within the space of one year”, Fla.Stat. § 725.-01 (1973), or which is “for the sale of goods for the price of $500 or more”, Fla. Stat. § 672.201 (1973), is unenforceable unless reduced to writing, with certain exceptions not pertinent here. Counsel for respondent has represented that the fees collected under the ordinance exceed $196,000.00. Brief for Respondent at 53. Nothing in the record indicates that capital outlay for expansion will be completed within a year’s time.

The failure to include necessary restrictions on the use of the fund is bound to result in confusion, at best. City personnel may come and go before the fund is exhausted, yet there is nothing in writing to guide their use of these moneys, although certain uses, even within the water and sewer systems, would undercut the legal basis for the fund’s existence. There is no justification for such casual handling of public moneys, and we therefore hold that the ordinance is defective for failure to spell out necessary restrictions on the use of fees it authorizes to be collected. Nothing we decide, however, prevents Dunedin from adopting another sewer connection charge ordinance, incorporating appropriate restrictions on use of the revenues it produces. Dunedin is at liberty, moreover, to adopt an ordinance restricting the use of moneys already collected. We pretermit any discussion of refunds for that reason.

The decision of the District Court of Appeal is quashed and this case is remanded to the District Court with directions that the District Court dispose of the question of costs; and that the District Court thereafter remand for further proceedings in the trial court not inconsistent with this opinion. In the trial court’s consideration de novo of the question of refunds the chancellor is at liberty to take into account all pertinent developments since entry of his original decree.

It is so ordered.

ADKINS, C. J., and ROBERTS, OVER-TON and ENGLAND, JJ., concur.

      . The ordinances setting water and sewerage connection charges or otherwise pertinent are the following:
      See. 25-14. Sewage connection required; notice.

      The owner of any house, building, or property used for human occupancy, employment, recreation, or other purpose, situated within the city and abutting on any street, alley or right-of-way in which there is now located or may in the future be located a public sanitary or combined sewer of the city, is hereby required at his expense to install suitable toilet facilities therein, and to connect such facilities directly with the proper public sewer in accordance with the provisions of this chapter, within ninety (90) days after date of official notice to do so, provided that said public sewer is within two hundred (200) feet of the house, building, or properties used for human occupancy. Sec. 25-31. Same — Classes of permits; contents; inspection fees.

      There shall be two classes of building sewer permits: (1) for residential and commercial service; and (2) for service to establishments producing industrial waste. In either case, the owner or his agent shall make application on a special form furnished by the city. The permit application shall be supplemented by any plans, specifications, or other information considered pertinent in the judgment of the city sewer superintendent. No permit will be issued unless the assessment as set forth in section 25-71 (c) and (d) has been paid.
      Sec. 25-32. Same — Costs paid by owner.

      All costs and expense incident to the installation, connection and maintenance of the building and collector sewers shall be borne by the owners. The owners shall indemnify the city from any loss or damage that may directly or indirectly be occasioned by the installation of the building sewer.
      See. 25-71. Meters — Connection or installation charge.

      (a) The connection charge for the installation of a meter inside the city shall be as follows:
      %" meter_$ 95.00
      1" meter_ 170.00
      l-i/2" meter_ 265.00
      2" meter_ 360.00
      (b) The connection charge for the installation of a meter outside the city limits shall be as follows :

        %" meter_$105.00
      1" meter_ 180.00
      l-i/2" meter_ 290.00
      2" meter_ 390.00

        ic) In addition to the meter installation charges described herein, there shall be paid an assessment to defray the cost of production, distribution, transmission and treatment facilities for water and sewer provided at the expense of the City of Dunedin, as follows:
      Each dwelling unit; for water _ _ $325.00 for sewer_ 475.00
      Each transient unit; for water __ 150.00 for sewer_ 275.00
      Each business unit; for water_ 325.00 for sewer_ 475.00
      (d) The assessments as set forth herein shall be payable upon issuance of the building permit for said unit or units in the case of new construction, or in the case of a presently existing structure or structures, such assessments shall be payable when the permits for water or sewer connections are issued.
      Petitioners challenge as unlawful the fees prescribed by Dunedin, Pla.Code § 25-71 (c).

      . Petitioners take the position that the ordinance is bad, if for no other reason, then because it denies equal protection of the laws to new residents of Dunedin. There is a substantial question whether petitioners here have standing to assert new residents’ rights. Construction Industry Association of Sonoma County v. City of Petaluma, 522 F. 2d 897, 44 U.S.L.W. 2093 (9th Cir., 1975). Assuming standing arguendo, the ordinance easily meets the rational basis test, see post, pp. 319-320, and no right to travel interstate is affected, contrary to petitionérs’ assertion. Cf. Annot., 63 A.L.R.3d 1184 (1975). In Shapiro v. Thompson, 394 U.S. 618, 89 S.Ot. 1322, 22 L.Ed.2d 600 (1969), welfare recipients were disqualified as such for one year by moving into Connecticut. Under Dunedin’s ordinance, a joint water and sewer connection costs approximately $800.00, regardless of whether the new user comes from Dunedin, elsewhere in Florida, or from another state or country.

      . In the event of connection to an existing structure, the fees are payable “when the permits for water or sewer connections are issued.” Dunedin, Fla.Code § 25-71 (d). The complaint here did not allege existing structures on the plaintiffs’ land, however.

      . The Supreme Court of Illinois, in Hartman v. Aurora Sanitary District, 23 Ill.2d 109, 177 N.E.2d 214 (1961), observed at 219:
      We have found that such reasonable charges have been uniformly sustained as a service charge rather than a tax. City of Maryville v. Cushman, 363 Mo. 87, 249 S.W.2d 347; State ex rel. Gordon v. Taylor, 149 Ohio St. 427, 79 N.E.2d 127; City of North Muskegon v. Bolema Construction Co., 335 Mich. 520, 56 N.W.2d 371; Chastain v. Oklahoma City, 208 Okl. 604, 258 P.2d 635.

      . Petitioners contend that utility revenues constitute taxes, to the extent such revenues are expended for purposes unrelated to the utility. Nothing prohibits a muncipality’s “making a modest return of its utility operation or certain portions thereof, providing the rate is not unreasonable.” Pinellas Apartment Ass’n v. City of St. Petersburg, 294 So.2d 676, 678 (Fla. 2d Dist. 1974) ; Mitchell v. Mobile, 244 Ala. 442, 13 So.2d 664 (1943). Contra, Madera v. Black, 181 Cal. 306, 184 P. 397 (1919). Augmenting general revenues is a natural use for such profits, and general revenues are expended for the whole range of municipal purposes. Privately held utilities also apply a modest portion of revenues to public or charitable purposes, and such charitable contributions are counted as operating expenses, when rates and charges are calculated. Miami v. Florida Public Service Comm’n, 208 So.2d 249, 258-9 (Fla.1968) (“if contributions are of a reasonable amount to recognized and appropriate charities, then they may be classified as legitimate operating expenses.” At 259) ; Re General Telephone Co., 44 P.U.R. 2d 247 (Fla.R.R. & P.U.C.1962). See generally Annot., 59 A.L.R.3d 941 (1974). Just as a modest surplus over costs of regulation does not invalidate regulatory fees, State ex ret Harkow v. McCarthy, 126 Fla. 433, 171 So. 314 (1936) (parking meters permissible unless “city was making inordinate and unjustified profits” At 317), so a modest profit from operation of a public utility does not transform user charges into taxes. Pinellas Apartment Ass’n v. City of St. Petersburg, supra. On the other hand, unreasonable reliance on utility revenues does amount to “imposing upon [ratepayers] unfair tax burdens.” Mitchell v. Mobile, 13 So.2d at 667. Cf. City of Panama City v. State, 60 So.2d 658 (Fla.1952).

      .Chapter 180 was enacted before the 1968 Constitution was adopted, and some language in the chapter is anachronistic. The statutes refer to “powers granted by this chapter,” Fla.Stat. §§ 180.03(1), .21 (1973), whereas, under the 1968 Constitution, the provisions of Chapter 180 are restrictions on the exercise of power the constitution itself confers, rather than the grant of powers these statutory provisions formerly constituted.

      . But a municipality’s power to tax is subject to the restrictions enumerated in Fla.Const. art. VII § 9 including the restriction discussed above. City of Tampa v. Birdsong Motors, Inc., 261 So.2d 1 (Fla.1972).

      . Special assessments are another common means of financing sewer construction. Fla. Stat. § 170.01 (1973). The fees in controversy here are not special assessments. They are charges for use of water and sewer facilities; the property owner who does not use the facilities does not pay the fee. Under no circumstances would the fees constitute a lien on realty.

      . Petitioners cite Norwich v. Village of Winfield, 81 Ill.App.2d 197, 225 N.E.2d 30 (2d Dist.1967) in which it was held that an Illinois municipality was without authority to raise money for future capital requirements, by collecting connection fees in excess of actual connection costs. But the decision in that case turned on the construction of a statute granting the Tillage of Winfield municipal powers, and is of no relevance to the present case. The Illinois court remarked: “The Village directs our attention to foreign cases. These are of no assistance . This is particularly true in states with so-called ‘home rule’ municipalities [like Florida].”

      . The “costs of expansion” may sometimes be difficult to identify precisely when certain kinds of capital expenditures are made; in this matter, too, “perfection is not the standard of municipal duty.” Rutherford v. City of Omaha, supra 160 N.W.2d at 228.

      . There is authority to the contrary. Hartman v. Aurora Sanitary District, supra; Home Builders Ass’n of Greater Salt Lake v. Provo City, supra. In Provo City, an ordinance like Dunedin’s was upheld even though the fees were used for “general operating expenses.” 503 P.2d at 451. We reject the view these cases represent.

      . If subsection e were excised from Dunedin, Fla.Code § 25-71, the ordinance would be unobjectionable, because reasonable meter connection charges may permissibly furnish utility revenues for unrestricted use within the utility system. The validity of such charges does not depend on limitation of their use.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Robert C. LANDIS, Appellant, v. Barry L. MEARS et al., Appellees.
    No. 75-790.
    District Court of Appeal of Florida, Second District.
    March 19, 1976.
    Robert C. Burke, Jr., of George A. Routh, Clearwater, for appellant.
    Joe R. Wolfe, Clearwater, for appellees.
   SCHEB, Judge.

In this appeal the appellant/defendant Robert C. Landis complains of entry of a judgment by the trial court holding him liable for having executed a lease in his individual capacity.

Appellees/plaintiffs, as lessors, entered into a lease with appellant/defendant which identified the parties as: inafter called the lessor, party of the first part, and NATIONAL AUTO-CLEAN SYSTEMS, INC. ROBERT C. LANDIS & CLIFFORD McCLOSKEY of the County of PINELLAS and the State of FLORIDA hereinafter called the lessee or tenant, party of the second part

“. . . MEARS INDUSTRIAL COMPLEX, BARRY L. MEARS, here-

The document was executed and acknowledged as follows:

Alleging a default under the lease, Mears sued National Autoclean Systems, Inc., Robert C. Landis and Clifford Mc-Closkey. The trial judge, after a nonjury trial entered an order on April 28, 1975, finding the lease to be “ambiguous and unclear on its face” and in due course entered a final judgment against the' appellant. The court, noting that parol evidence was admitted to determine the intent of the parties, found:

“[T]he Defendant LANDIS did know and have actual knowledge that the lease was negotiated to and was intended to bind NATIONAL AUTOCLEAN SYSTEM, INC., ROBERT C. LANDIS and CLIFFORD G. MC CLOSKEY, individually, notwithstanding the manner in which the signatures of ROBERT C. LANDIS and CLIFFORD G. MC CLOS-KEY were affixed to the lease.”

Appellant contends he signed the lease only in a corporate capacity and it was error for the trial judge to have found him personally liable. Appellee, on the other hand, responds that an ambiguity resulted from the manner in which appellant executed the document. This ambiguity, says appellee, allowed the trial court to receive parol evidence to determine the true capacity in which Landis actually signed the instrument. Appellant responds by saying that assuming arguendo there was an ambiguity in the lease, it was a patent rather than a latent one and the court was therefore precluded from receiving parol evidence.

When it becomes necessary to determine the capacity in which parties entered into an agreement, the court looks at the entire agreement of the parties. Thus, in State v. Hollandale, Inc., Fla.App.1960, 125 So.2d 587, where John D. Steele signed an instrument as president of a corporation, but the contract referred to an obligation on the part of “undersigned officers,” this court upheld the trial court’s denial of Steele’s motion to dismiss the complaint against him in his individual capacity. There we said that whether Steele was or was not involved as an individual could only be determined by a review of the evidence. Of course, the principle which allows a court to receive parol evidence has long been recognized in determining the relationship of an undisclosed principal with his agent. See, 1 Fla.Jur., Agency, § 90; Pittman v. Roberts, Fla.App.2d 1960, 122 So.2d 333. And more recently, in Producers Fertilizer Co. v. Holder, Fla.App.2d 1968, 208 So.2d 492, this court indicated that parol evidence is admissible to determine the real parties in interest in a transaction. In Holder, there was a conflict between the seller’s affidavit which stated he sold and delivered fertilizer to a purchaser individually, and the invoices which referred to the purchase as a corporation.

Hazlett v. Willaume, 1918, 76 Fla. 514, 80 So. 309, is a case which points up the necessity of the court to receive extrinsic evidence when there is an ambiguity concerning the capacity in which parties entered an agreement. There, the Supreme Court reversed a judgment of the lower court because the trial judge refused to admit evidence of whether the parties intended an individual or corporate transaction where the words “pres.” and “treas.” were written after their signatures as makers of a note.

In the lease at issue here, the lessees are initially identified as a corporate entity and individuals. The lease, prepared on behalf of 'the appellant Landis, was signed by him on Page 2 with the word “pres.” beside his signature, and opposite the name of the corporation. His signature was affixed in the place designed for signature of witnesses. The acknowledgment, while also unclear, supports the position taken by appellees that appellant acknowledged the lease in an individual capacity. Since there was an ambiguity here, apparent on the face of the instrument, the trial court correctly admitted parol evidence. The trial judge by parol evidence found an intent had been manifested by the parties that the appellant be individually bound on this undertaking. Appellant does not challenge the sufficiency of the evidence on this point.

The rule differentiating between patent and latent ambiguities in respect to admitting parol evidence has been criticized and even discarded in a number of jurisdictions. See, 30 Am.Jur.2d, Evidence, § 1073. Still, Florida courts have adhered to the distinction and ordinarily allow pa-rol evidence where there is a latent ambiguity and reject it where there is a patent ambiguity. Carson v. Palmer, 1939, 139 Fla. 570, 190 So. 720; Ace Electric Supply Co. v. Terra Nova Electric, Inc., Fla.App.1st 1973, 288 So.2d 544; City of Hollywood v. Zinkil, Fla.App.4th 1973, 283 So.2d 581. See also, City of St. Petersburg v. International Assoc. of Firefighters, Fla.App.2d 1975, 317 So.2d 788. The reasoning runs like this: A latent ambiguity exists where a document is rendered ambiguous by some collateral matter. In such instances it is essential for the court to hear that matter to render a proper interpretation. Where, however, the ambiguity is patent, to admit evidence would be improper since it would, in effect, allow the court to rewrite the contract for the parties by supplying information the parties themselves did not choose to include.

We recognize the classic distinction between patent and latent ambiguities as a basis of the court determining whether or not to hear parol evidence; nevertheless, that distinction is not relevant here since the court was only interested in determining the capacity of the parties who entered the agreement rather than in varying or supplying any terms to the agreement. This case is controlled by the principle that where, as here, there is an ambiguity on the face of a contract as to the capacity of parties and their relationship with one another and the surrounding circumstances when they entered into the agreement, the court is proper in receiving parol evidence.

We have examined the other points relied on by appellant, including the question concerning damages, and find such points to be lacking in any substantial merit.

Accordingly, the judgment of the trial court is affirmed.

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

      . The court determined McCloskey was not personally liable because he was merely a corporate employee acting in reliance on the representations of the appellant Landis.

      . In addition to IIazlett v. Willaume, supra, see also, Tomlin v. Ceres Corp., 5th Cir. 1975, 507 F.2d 642; Brown v. Prince, 10th Cir. 1947, 161 F.2d 537; Planters’ Chemical & Oil Co., v. Stearnes, 1914, 189 Ala. 503, 66 So. 699.


author: HOBSON, Acting Chief Judge.

text:
    SECOND NATIONAL BANK OF CLEAR-WATER, Appellant, v. WESTLAKE DEVELOPMENT CORPORATION, Appellee.
    No. 74-1211.
    District Court of Appeal of Florida, Second District.
    March 31, 1976.

      R. Carlton Ward, Richards, Nodine, Gilkey, Fite, Meyer & Thompson, Clear-water, for appellant.
    Carl O. Dunbar, Jr., Dunbar, Dunbar & Whitlock, Dunedin, for appellee.
   HOBSON, Acting Chief Judge.

Appellant, defendant below, appeals a summary judgment directing it to execute and deliver a satisfaction of mortgage to the- appellee. The appellee executed a promissory note and mortgage to appellant in the amount of $3,400,000. The proceeds from the note were to be used for the construction of Phase I of what was to be a three-phase development. Simultaneously with the execution of a note and mortgage, appellee and appellant executed a loan agreement. This loan agreement was made a part of a mortgage by reference.

Subsequently, the appellee tendered to the appellant the principal balance due on the mortgage with accrued interest and requested a satisfaction thereof. The appellant refused to execute and deliver a satisfaction of the mortgage on the ground that under paragraph 34 (t) of the loan agreement it was entitled to liquidated damages for the failure of the appellee to give the appellant a right of first refusal to finance the construction of Phase II and Phase III of the development.

Paragraph 34(t) of the loan agreement reads as follows:

“It is anticipated that BORROWER will develop portions of the above described Property in two (2) additional Phases, identified as Phases II and III for the purposes of this Loan Agreement. In addition to the payment of $250,000.00 for each of said releases, as is set forth in Exhibit ‘D,’ it is understood and agreed that BORROWER will pay to LENDER a fee of Thirty Thousand Dollars ($30,000.00) for each phase to be released, or one per cent (1%) of the actual construction loan required to develop Phases II and III, whichever is greater. Full credit will be given to the Commitment fees which may be imposed for Phase II and Phase III construction loans, if said loans are made by the LENDER. These release fees shall be considered liquidated damages should the LENDER not be given first right of refusal for a bankable construction loan for the Phase II and Phase III buildings. A comparable package as is outlined in the LENDER’S Letter of Commitment, dated January 24, 1973, shall be deemed a bankable package, as meeting the requirements of this condition.”

The appellee contended, and the trial court agreed, that paragraph 34 (t) should not be considered where the appellee tendered to appellant the entire principal balance due, together with accrued interest thereon. Paragraph 34 (t) is clear and unambiguous that it would only apply in the event appellee sought releases from the mortgage of the real property composing Phase II and/or Phase III of the planned development. There being no releases sought by appellee, the trial court was eminently correct in entering summary judgment for appellee.

AFFIRMED.

GRIMES and SCHEB, JJ., concur.


author: PER CURIAM.

text:
    William Charles YOUNGS, Appellant, v. The STATE of Florida, Appellee (two cases).
    Nos. 75-979 and 75-1306.
    District Court of Appeal of Florida, Third District.
    March 30, 1976.
    Phillip A. Hubbart, Public Defender, and Michael S. Hacker, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

William Charles Youngs, defendant in the trial court, has filed two appeals in this court. The first is from an order denying Youngs’ petition for relief pursuant to Rule 3.850, RCrP. The second is from a final judgment and sentence adjudicating Youngs guilty of a probation violation. We will treat them together in this opinion for prompt disposition.

In October of 1969, Youngs was charged by information with robbery. In January of 1970, he pleaded guilty, adjudication of guilt and entry of sentence were withheld, and the court placed Youngs on probation for a period of ten years. In October of 1973, an information was filed charging Youngs with robbery, assault and battery and conspiracy to commit a felony, to-wit: sale of cocaine. The trial judge agreed on the record to schedule Youngs’ probation revocation hearing at the same time as the trial on the substantive charges. Approximately one month before the trial date, however, the probation revocation hearing appeared on the court’s calender. In spite of defense counsel’s statement that he was not prepared at that time, the trial judge proceeded with the hearing. Upon finding that Youngs violated his probation, the court revoked probation, adjudged him guilty and imposed a sentence of seven years in the state penitentiary. At the time of the trial on the substantive charges, Youngs withdrew his prior plea and pleaded guilty as to robbery, nolo contendere as to conspiracy to commit a felony and the state abandoned the assault and battery charge. Youngs was sentenced to a concurrent seven year sentence.

In 1975, Youngs filed a petition for habeas corpus, pursuant to Rule 3.850, RCrP, alleging incompetence of counsel and other irregularities in the 1973 proceedings. A hearing was held before a different circuit judge and relief was granted as to the probation revocation. It was found that the defendant was not sufficiently apprised of the time of the probation revocation hearing; that defendant was not given adequate time to prepare his defense and that defendant was denied his constitutional right to due process. The judgment and sentence on the probation revocation was vacated and set aside. Relief was refused, however, as to the 1973 substantive offenses culminating in charges and convictions. The assistant public defender who represented Youngs testified that he fully advised his client of the nature and consequences of a guilty plea to the 1973 charges. After hearing the testimony of the witnesses and engaging in dialogue with Youngs, the trial judge determined that the plea was freely, voluntarily and knowingly made. The court entered an order denying the motion to vacate and set aside the judgment and sentence on the 1973 substantive charges, leaving such judgment and sentence in full force and effect. This is the basis of Youngs’ first appeal.

Subsequently, another probation revocation hearing was held before the same judge who had previously vacated the judgment and sentence. Youngs was adjudicated guilty of violation of probation and the original sentence was reimposed with credit for all time served. This is the basis of the second appeal.

In our opinion, the trial court did not commit error in entering either the judgment on the probation revocation or the order refusing to vacate the 1973 conviction and sentence.

The point raised by Youngs as to the finding of guilt of violation of probation is that there was no testimony by the clerk, the former prosecutor, the former probation officer or any other individual present at the time, that Youngs was ever properly placed on probation. The strict procedural and substantive rights of a defendant need not be formally adhered to in a probation revocation hearing. Brill v. State, 1947, 159 Fla. 682, 32 So.2d 607. However, the proceedings must meet the minimal criterion of due process. Mato v. State, Fla.App.1973, 278 So.2d 672. In this case, the trial court awarded the defendant a full hearing on the merits. He was represented by a competent attorney, given full opportunity to confront and cross-examine the witnesses testifying against him, and made full use of that opportunity. At the conclusion of the hearing, the court was satisfied that Youngs was the individual who was placed on probation in 1970 and that he violated his probation. No error has been shown in this respect.

The thrust of Youngs’ other appeal sub judice is that the court erred in finding that he knowingly and intelligently entered a plea of guilty, and in failing to set aside the judgment and sentence entered on the substantive charges in 1973. In our opinion, Youngs was not prejudiced in regard to this point because, had the original probation revocation hearing been properly noticed, he would have been guilty of the probation violation in any event as shown in the subsequent hearing. Therefore, if, as Youngs contends, he was induced to plead guilty in order to receive a concurrent sentence with his sentence on the probation violation conviction which was set aside, no prejudice was suffered since he was subsequently re-convicted on the same violation. All other points raised are without merit and will not be discussed.

Accordingly, both the final order denying relief pursuant to Rule 3.850, RCrP, and the final judgment of conviction and sentence on the probation violation are affirmed.

Affirmed.


text:
    Harry ABELSON, Appellant, v. Arie Lionel BOSEM, a/k/a Lionel Bosem, et al., Appellees.
    No. 75-1179.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 22, 1976.
    Heller & Kaplan and Robert Golden, Miami for appellant.
    Sibley, Giblin, Levenson & Ward and Allan M. Glaser, Miami Beach, for ap-pellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal from an order overruling a number of appellant’s objections to interrogatories, and appellees have cross-appealed that part of the order sustaining some of the objections.

The litigation in this cause began when Sari Abelson, the wife of appellant-coun-terdefendant, Harry Abelson, filed a complaint ' seeking rescission of certain agreements and an accounting against her brother, Lionel Bosem, and her sister and brother-in-law, Tova and Bobby Goodis, appellee-counterplaintiffs. The complaint in essence alleged that appellees had violated a certain agreement between the parties, dated March 25, 1971 and entitled “Letter of Intent.” The appellees filed a counterclaim asserting several causes of action arising out of the alleged breach of the “Letter of Intent” by both Sari and her husband, Harry. The complaint was tried separately from the counterclaim and during this trial, the “Letter of Intent” was determined by the trial court to be valid and enforceable. The outcome of the trial was a final judgment dismissing Sari’s complaint with prejudice and reserving jurisdiction to try appellees’ counterclaim for specific performance, damages, an accounting and other equitable relief as a result of Sari’s and Harry’s breach of the “Letter of Intent.” The essential allegations of the counterclaim are (1) Sari Abelson, Lionel Bosem and Tova Goodis are the children of Simon and Rachel Bosem, now deceased; (2) just prior to Simon’s death, Simon conveyed all his properties in Canada to Sari and Harry Abelson as trustees on behalf of the children. Lionel, Tova and Sari, and his wife, Rachel; (3) the March 25, 1971 “Letter of Inetnt” stipulated that as soon as practical title to these Canadian properties should be deeded in the names of the children, Lionel, Tova and Sari, and Simon’s wife, Rachel; and (4) Harry and Sari breached this agreement by selling some of the properties, but the consideration received and the specific properties sold were unknown. Appellees propounded to Harry Abelson, interrogatories which sought a compilation of facts, figures and details on any and all Canadian properties Harry has owned since 1953. Harry filed his objections to all of the interrogatories on the grounds that (1) since appellees had not established their right to an accounting, the interrogatories were premature and he would be put to a lot of trouble for nothing, and (2) appellees merely are seeking to harass him. After a hearing on the objections, the trial judge entered the herein appealed order sustaining Harry’s objections to those interrogatories pertaining to the accounting and overruling his objections to the remaining interrogatories relating to issue of whether Sari and Harry breached the “Letter of Intent.”

We conclude that the appeal and cross-appeal lack merit in that a trial court in its treatment of discovery problems has wide discretion which the reviewing court ordinarily will not disturb, and both the appellant and cross-appellants have failed to demonstrate an abuse of that discretion accorded the trial court. See RCP 1.280 (b) and Charles Sales Corp. v. Rovenger, Fla. 1956, 88 So.2d 551; Girten v. Bouvier, Fla.App. 1963, 155 So.2d 745; Continental Mortgage Investors v. Village By the Sea, Inc., Fla.App.1971, 252 So.2d 833.

Affirmed.


text:
    Stephen R. SONSON and Barbara J. Sonson, Appellants, v. William J. OSWALD and Delores J. Oswald, Appellees.
    No. 74-889.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 22, 1976.
    James F. Pollack, Coral Gables, for appellants.

      Blitstein & Molans, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See: Art. X, Sec. 4(a), Constitution of the State of Florida (1968).


text:
    Joseph F. MAIMONE, Appellant, v. The WACKENHUT CORPORATION, Appellee.
    No. 75-628.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 22, 1976.
    Harvey Richman, Miami Beach, for appellant.
    Richard H. W. Maloy, Coral Gables, for appellee.
    Before BARKDULL, C. J., and HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant seeks reversal of an order enjoining him from operating and administering a security system at a warehouse and storage center in an action for injunc-tive relief and damages for breach of non-competition agreement.

In September 1973 defendant-appellant, Joseph F. Maimone, was hired by plaintiff-appellee, the Wackenhut Corporation, as supervisor of plaintiff’s security system at the Food Fair Corporation’s Southern Region Warehouse and Storage Center in Miami. On November 7, defendant signed an employment contract, which in pertinent part provided:

“3. During the tenure of his employment by the Employer and for a period of two (2) years from the date such employment terminates, the Employee will not directly or indirectly, alone or as a member of a partnership, or as an officer, director, stockholder or employee of any corporation, or by or through or as a part of any other entity, tender or perform any service of any value whatsoever, or otherwise engage in any business or other activity (including but not limited to solicitation of Employer’s clients and employees) that is competitive with the 'business conducted by the Employer within the geographical limits of any Area Office (as that term is defined in Section 203 of the Employer’s Administrative Manual, as the same may, from time to time, be revised) where the Employee has been assigned during the two (2) years immediately preceding such termination of employment, or within which geographical limits he is employed in any capacity including but not limited to Project Manager.”

In October 1974 defendant resigned from the employment of plaintiff, formed his own security service and offered his service to Food Fair for a lower cost than that of plaintiff. Food Fair then terminated Wackenhut’s guard service and hired the defendant. Thereupon, Wackenhut filed the instant action for damages and injunc-tive relief for breach of the non-competition provision of the contract set out above. Summary judgment was entered enjoining the defendant “from the operation, direction, supervision or employment in reference to the guarding or administration of security systems at the Food Fair Southern Region Warehouse and Storage Center located at 7000 N.W. 32nd Avenue, Miami, Florida for a period of two (2) years . . .” Defendant appeals.

We find that defendant voluntarily signed this employment contract which contained the non-competition provision and there being no material issues of fact, the trial judge was correct in entering the final summary judgment for plaintiff. See Tasty Box Lunch Co. v. Kennedy, Fla.App.1960, 121 So.2d 52; Orkin Exterminating Company v. Girardeau, Fla.App.1974, 301 So.2d 38.

Affirmed.


author: HENDRY, Judge.

text:
    The MIAMI HERALD PUBLISHING COMPANY et al., Appellants, v. Agustin COLLAZO, and the City of Miami, Appellees.
    No. 75-649.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 22, 1976.

      Paul & Thomson, Parker D. Thomson, Sanford L. Bohrer, Heller & Kaplan, Miami, for appellants.
    Rentz, McClellan & Haggard, Fowler, White, Burnett, Hurley, Banick & Knight, Underwood, Gillis, Karcher, Reinert & Gordon, Miami, John U. Lloyd, City Atty., Fort Lauderdale, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellants, The Miami Herald Publishing Company and Joe Oglesby, bring this appeal from an order of the trial court denying their petition for reconsideration of an order sealing the terms of a settlement agreement. The order also denied appellee The Miami News’ motion to make public the terms of the final judgment. Due to its community of interest with appellants, appellee The Miami News will be considered for the purposes of this appeal as an appellant.

On November 19, 1973, appellee Agustín Collazo was shot by a City of Miami police officer during the course of a burglary investigation. As a result of the shooting, Collazo became paralyzed from the neck down. On January 1, 1974, he filed suit against The City of Miami alleging that police misconduct and improper police training caused his injuries. By amendment, the City’s primary and excess insurance carriers were also joined as defendants.

A jury trial commenced on December 9, 1974, and on December 11, 1974, the case was settled. Prior to entering into a formal settlement, it was agreed by counsel for all parties that the terms of the settlement would not be made known to the press or to the public.

The settlement terms were reported in closed proceedings with only the parties, their counsel, and the court present. These proceedings were reported, in pertinent part, as follows:

“(The following proceedings were had without the presence of the jury.)
“ . . . MR. KNIGHT: Come now the attorneys for their respective clients in open court, and move the Court for an order of dismissal with prejudice.
“Each party to bear their own costs. Grounds therefor counsel submit to the Court being that the parties have amicably disposed of their respective claims under the following terms and conditions:
“1) That the primary carrier for the City of Miami to-wit: Appalachian Insurance Company will tender its full and complete coverage in the sum of $-.
“2) That the excess carrier, Midland Insurance Company will tender to the plaintiff the sum of $-.
“And, in addition thereto, will satisfy the Jackson Memorial lien to the extent of an amount no greater than $-.
“In the event, however, that that lien can be satisfied at a lesser amount that is to his benefit.
“THE COURT: So stipulated, Gentlemen ?
“Mr. McCLELLAN: So stipulated.
“MR. KARCHER: So stipulated.
“But will the Court further instruct counsel so that they may in turn instruct their respective clients or the parties involved thereto, that this is to be a sealed settlement and that the terms and conditions of such settlement are not to be voluntarily disclosed to any media or to any other organization without specific stipulation of the Court? . . . ”
‡ j]< ‡ :j«
"... THE COURT: Let the record also reflect that I have instructed the clerk of the court, the court reporter, and my bailiff that they are not to divulge any of this information at anytime to anyone and you, sir, Mr. Interpreter, you also are not at anytime, to anyone divulge any such information. Do you understand that, sir ?
“THE INTERPRETER: Yes. . . ”
“ . . . (The jury returned to the courtroom at 2:22 p. m.)
“THE COURT: Ladies and Gentlement of the Jury, it must he obvious to you that something has taken place in the interim period, otherwise you would have been called in long before this.
“I have just concluded a conference with the attorneys in my chambers where a question of settlement in this case was discussed.
“Following that discussion an agreement was reached by all parties concerned. This courtroom was then cleared for the purpose of the attorneys talking to their respective clients about the settlement involved. In that it was thought that this should be called a sealed verdict and that the amount of money involved was no one’s business but those of the parties involved themselves, that was the reason this was done.
“A settlement agreement was reached satisfactorily to all of the parties concerned, and in view of those circumstances your services are no longer required in this case. . . . ”

On December 26, 1974, appellee Collazo’s counsel filed a satisfaction of judgment stating that the “sealed judgment as heretofore entered on the 11th day of December 1974 in Chambers for the sum of TEN DOLLARS AND NO/lOO ($10.00) and other good and valuable considerations” had been satisfied.

Thereafter, appellants who had been publishing news articles in their respective newspapers concerning the filing of this action, the trial, and appellee Collazo, filed petitions for reconsideration of the trial court’s order sealing the terms of the settlement agreement and the final judgment. On March 25, 1975, the trial court entered an order denying appellant’s petitions. Basically, both petitions sought to make public the terms of the settlement agreement. From this order, appellants appeal.

Appellants contend that the trial court, by ordering a portion of the proceedings before it sealed from the press and the public, acted in excess of its jurisdiction, abused its discretion, and denied them their constitutional right to gather and publish the news. Appellee The Miami News concurs with the points raised on appeal by appellants and further contends that it has a fundamental constitutional right to have access to all judicial proceedings and the public has no less right.

Appellees Collazo and the City of Miami contend that the parties to civil litigation have a right to settle such litigation on terms that are acceptable to the respective parties without being forced to divulge the terms of the settlement to appellants.

The record shows that the City of Miami has insurance coverage with two carriers for the type of claim made here by appellee Collazo. Premium payments are made from the general operating funds of the City, which funds are obtained through various sources, e. g. real estate taxes paid by taxpayers of the City, including appellants. The premium payable for the City’s police primary insurance policy was increased in November, 1974, from $60,000 to $150,000 per year. The insurance carrier asserted that this adjustment was required by reason of the claims experience of the City.

The present insurance contracts, relevant to this appeal, terminate in November, 1975. Prior to their termination, the City will request bids for continued insurance coverage. The premium which the City will have to pay commencing in November, 1975, for this kind of insurance will be determined by its claims experience, including the settlement in this action.

Judicial powers possessed by a trial court are classified either as inherent powers, stemming from its existence as a court, or as powers which depend upon constitutional or statutory authorization for their exercise. Every court has the inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to valid existing laws and constitutional provisions. These powers, however, must be invoked in the exercise of sound judicial discretion. See, e. g., Petition of Florida Bar, Fla. 1952, 61 So.2d 646; and 8 Fla.Jur., Courts §§ 40 and 41. Our first determination in the case sub judice, will be whether the trial court exceeded such discretion in sealing the terms of the settlement agreement and in denying appellants’ petitions for reconsideration of the order sealing the terms of the agreement. In making this determination, it will be helpful to briefly consider the particular interests of the affected parties.

We should note that the questions presented by this appeal do not directly involve freedom of the press. However, pragmatically it must be recognized that if the press is excluded from a judicial proceeding or denied access to the result of such a proceeding it is unable to print and disseminate information which it deems newsworthy. As stated in Annot., 49 A.L. R.3d 1012 (1973), at page 1013, “ . . . In a larger sense, freedom of the press loses some of its effectiveness when the press is denied access to information, and such a restriction should therefore be allowed only where other fundamental interests require it. . . ”

What is directly involved here is the power and authority of the trial court to conduct a civil trial, involving a governmental entity as one of the parties, i. e., the City of Miami, and, based solely upon the expressed desires of the litigants, deny access to the press, i. e. appellants, of the terms of the settlement agreement concluding such litigation. We note that the trial below was open to the press and the public from its inception and only the terms of the settlement agreement, i. e., the dollar amounts actually awarded to appellee Col-lazo, were sealed.

As set forth in State Ex Rel. Gore Newspaper Company v. Tyson, Fla.App.1975, 313 So.2d 777, at 782, a trial court in controlling its proceedings has the inherent power to preserve order and decorum in the court room, to protect the rights of the parties and witnesses, and generally to further the administration of justice. In furtherance of this power, there are numerous cases recognizing the power of the court to exclude the press and the public. A review and analysis of these cases, civil or criminal, reflect the existence of cogent reasons for such exclusion, all primarily concerned with guaranteeing the parties a fair and impartial trial. Additionally, the Florida Legislature has vested the courts with the statutory authority in certain types of proceedings to exclude the press and the public. See, e. g., § 39.03 Fla.Stat., F.S.A., (certain juvenile proceedings) ; § 63.162 Fla.Stat., F.S.A., (adoption proceedings); § 742.031, Fla. Stat., F.S.A., (bastardy proceedings). Suffice it to say, the power to exclude exists, although it should be exercised cautiously and only for the most cogent reasons.

Juxtaposed with the right to exclude, is the right of the press or public to know. Here we start with some propositions repeatedly reaffirmed by the United States Supreme Court: that a trial is a public event; what transpires in the courtroom is public property; those who see or hear what transpired may report it with impunity; and there is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it. See, e. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) ; Strohle v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 (1952); and Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947). As quoted in State Ex Rel. Gore Newspaper Company v. Tyson, supra 313 So.2d at 785, the Supreme Court of California in an 1893 decision significantly observed:

“ ‘ . . . In this country it is a first principle that the people have the right to know what is done in their courts. The old theory of government which invested royalty with an assumed perfection, precluding the possibility of wrong, and denying the right to discuss its conduct of public affairs, is opposed to the genius of our institutions, in which the sovereign will of the people is the paramount idea; and the greatest publicity to the acts of those holding positions of public trust, and the greatest freedom in the discussion of the proceedings of public tribunals that is consistent with truth and decency, are regarded as essential to the public welfare. Therefore, when it is claimed that this right has in any manner been abridged, such claim must find its support, if any there be, in some limitation expressly imposed by the lawmaking power, or the right to exercise the authority claimed must be necessarily implied as essential to the execution of the powers expressly conferred. . . . ’ In re Shortridge, [99 Cal. 526] 34 P. 227, 228, 229.”

An informed public depends on accurate and effective reporting by the news media. No individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities. For most citizens the prospect of personal familiarity with newsworthy events is hopelessly unrealistic. In seeking out the news the press, therefore, acts as an agent of the public at large. It is one of the primary means by which we receive that free flow of information and ideas essential to intelligent self-government. The underlying right to know is the right of the public generally. See Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed. 2d 514 (1974); and Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966).

Although we are unaware of any specific constitutional or statutory provision giving the press or the public a right to attend a judicial proceeding, the “open court” concept is an indispensable part of our system of government and our way of life. See, e. g., Saxbe v. Washington Post, supra; Mills v. Alabama, supra; Sheppard v. Maxwell, supra; E. W. Scripps Company v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896 (1955); and Brant, The Constitution and the Right to Know, in Mass Media and the Law 73 (D. Clark and E. Hutchison ed. 1970). As stated in State Ex Rel. Gore Newspaper Company v. Tyson, supra 313 So.2d at 783, “[t]he court’s primary concern is , for the litigants and in particular for their fundamental right to a fair trial. But the personal preference of litigants and a fair trial for litigants are two entirely different considerations.”

We turn now to the appeal sub judice in light, of the principles set forth above. The record indicates the trial court, at the request of the parties, ordered that the terms of the settlement agreement, which implied liability on the part of the City of Miami for the actions of one of its police officers acting in his official capacity, were not to be made public. The only reasons shown in the record for not making the settlement terms public were the preference and agreement of the parties not to do so. Additionally, the trial court stated it was no one’s business except that of the parties. Counsel for appellees also argue in their brief that the sole reason, for sealing the terms of the settlement agreement, was to assure the terms of the agreement would not adversely affect other pending claims against the City of Miami and its insurance carriers. Thus, the fair trial considerations, which have played a dominant role in other cases upholding the right to exclude or censor, appear to be absent in the present case. Here the terms of the settlement agreement were sealed after the basic trial process had ended. In our opinion, appellees’ fear of the possibility that public knowledge of the settlement terms might affect other pending litigation involving them is not a cogent reason for sealing the terms of the settlement agreement, because they did not show that such disclosure would result in any immediate threat to the administration of justice. We think the right of the press and public to know should weigh heavily against a possible tendency to influence pending cases, particularly in borderline situations such as here. See Craig v. Harney, supra; Pennekamp v. Florida,, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946); and Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941). Further, appellants’ right to know the terms of the settlement agreement is particularly compelling here because of the nature of the issues being litigated, i. e., alleged police misconduct and improper police training involving a City of Miami police officer acting in his official capacity. These issues created a substantial monetary liability for the City and influenced its insurance rates for the future, which costs must be borne by the taxpayers. Moreover, the activities complained about are by their very nature newsworthy. It is particularly in matters such as these that freedom of communication should be kept open and that none of the real issues or facts become obscured. See Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). In short, we perceive none of the persuasive or cogent reasons generally required to justify denying the right of the press or public to know what takes place in the courts. As stated in State Ex Rel. Gore Newspaper Company v. Tyson, supra at 313 So.2d 787:

“History past and present has poignantly demonstrated the destructive effect of secrecy on our society — sowing seeds of suspicion and distrust between government and the governed. It would seem somewhat paradoxical for the very institution which has fostered a recognition of government in the sunshine and whose pronouncements are concerned with, the administration of justice to take a backward step by enshrouding its own proceedings in secrecy solely to accommodate litigants. See the Judicature, vol. 58, No. 2, August 1974 ‘Let the Sunshine In: The Case for an Open Judicial System’.”

We concur. Although it has been argued that the actual trial court proceedings were open to appellants and the entire court’s file in the matter is available for their inspection, the fact remains that the terms of the settlement agreement upon which the parties relied in concluding their litigation, pursuant to an order of the trial court, remains sealed, unavailable, and unknown to appellants. We think this result, based on the facts of the instant appeal, are incompatible with the right of appellants to know. Also see United States v. Dickinson, 465 F.2d 496 (5 Cir., 1972). Therefore, we hold that the trial court abused its discretion in sealing the terms of the settlement agreement. Due to this determination, it is unnecessary for us to consider the other points raised on appeal by appellants.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the order of the trial court ordering the terms of the settlement agreement between the parties sealed is reversed.

Reversed.


text:
    Ulysses Ulice GILBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 75-971.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 22, 1976.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Battle v. State, Fla.App.1974, 292 So.2d 594; Nelson v. State, Fla.App.1963, 157 So.2d 96; Mc-Cullers v. State, Fla.App. 1968, 206 So.2d 30.


text:
    William L. DUNCAN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-973.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 22, 1976.
    Phillip A. Hubbart, Public Defender, and Julian Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed upon authority of Fla.Stat. § 924.33; and cf. DeLaine v. State, Fla.1972, 262 So.2d 655.


text:
    Ira MACKLER, an individual, Appellant, v. WORLD WIDE MEATS, INC., an Iowa Corporation, Appellee.
    No. 75-742.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Reheai’ing Denied April 22, 1976.
    Leo J. Greenfield, North Miami, for appellant.

      A. Jay Cristol and Steven Mishan, Miami, deClaire, Becker & Van Kleek, Boca Raton, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Yates v. Ball, 1937, 132 Fla. 132, 181 So. 341; Flowers v. Finley, Fla.App.1975, 311 So.2d804.


text:
    BRICKELL CONSTRUCTION CORP., a Florida Corporation, Appellant, v. Francisco PUJOL et al., Appellees.
    No. 75-1372.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 22, 1976.
    McCormick, Bedford & Backmeyer, Miami, for appellant.
    Mahoney, Hadlow, Chambers & Adams and John K. Aurell and James T. Schoen-brod, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

This is an interlocutory appeal seeking reversal of an order appointing a receiver in a mortgage foreclosure action.

Appellant-defendant, Brickell Construction Corporation, on August 10, 1972 obtained financing from TMC Mortgage Investors, a Massachusetts business trust, for the development of a 200 unit condominium complex known as Golden Gate. In May 1975 the defendant corporation defaulted in its payments and plaintiffs, as trustees of TMC, filed suit seeking to foreclose the mortgage and to recover damages. In addition, plaintiffs prayed for the appointment of a receiver pendente lite to which they alleged they were entitled pursuant to the terms of the mortgage. The trial court, after hearing, appointed a receiver over all the real and personal property of the Golden Gate Condominium development. Defendant Brickell Construction Corporation appeals.

Defendant first argues that the trial court committed reversible error in permitting plaintiffs to maintain this suit in that a trust is not a legal entity and, therefore, no one can sue on behalf of a name.

The record clearly reflects that TMC Mortgage Investors is the holder of the promissory note and mortgage and plaintiffs, as trustees of TMC, are entitled to maintain this action on its behalf. See Boyd v. Boulevard National Bank, Fla.App.1975, 306 So.2d 551; Your Construction Center, Inc. v. Gross, Fla.App.1975, 316 So.2d 596.

We also considered defendant’s second contention that the trial court erred in appointing a receiver where the plaintiffs did not have clean hands and where no emergency existed, and conclude it contains no merit.

Affirmed.


text:
    Robert Jerry GLAS, a/k/a Kenneth Robert Fusco, Appellant, v. The STATE of Florida, Appellee. Raymond C. DIAZ, Appellant, v. The STATE of Florida, Appellee.
    Nos. 75-829, 75-857.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Rehearing Denied April 22, 1976.
    Phillip A. Hubbart, Public Defender, and Mark King Leban and Elliott Scherker, Asst. Public Defenders, for appellants.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Co-defendants, Robert Jerry Glas a/k/a Kenneth Robert Fusco and Raymond C. Diaz, were charged in the same information with robbery and carrying a concealed firearm. Both defendants pled nolo contendere to robbery and the State abandoned the charge of carrying a concealed firearm against both defendants. The trial court entered judgments of conviction and sentenced Glas to 25 years in. the state penitentiary, 20 years to be stayed and withheld and at the completion of 5 years, probation for 20 years and sentenced Diaz to 15 years in the state penitentiary, 12 years to be stayed and withheld and at the completion of 3 years, probation for 12 years.

Since the charges against Glas and Diaz arose from the same incident, the separate appeals from the judgment of conviction and sentence of Glas and of Diaz will be treated together in his opinion.

The facts are that on November 3, 1974, two men 'entered a Cumberland Farm store and at gunpoint, forced the cashier to hand over the money. In addition to the cashier, there were three other witnesses, two in the store, a customer and the cashier’s 14-year-old son, and a man who, while walking his dog across the street, observed the license number, the make and color of the car in which the robbers escaped, and the driver. With the license number and description of the getaway car and driver, the police were able to locate the defendants shortly after the robbery and in less than 2 hours, the witnesses were contacted and asked to return to the store for a show-up to identify the suspects. The defendants were viewed behind a one-way mirror, and both Glas and Diaz were identified by the three witnesses who were in the store. A third suspect, who was later dismissed as a defendant in the case, was identified by the man who had been across the street as the driver of the getaway car.

Defendants, Glas and Diaz, both made motions to suppress the show-up and subsequent line-up and in-court identifications. The court granted the motions as to some of the witnesses, but denied Glas’ motion as to identification by the customer and Diaz’s motion as to identification by the customer and the cashier, since each one identified the respective defendant(s) both in and out of court. When the court found identification by these witnesses to be untainted and admissible, both Glas and Diaz pled no-lo contendré to the charge of robbery, and they were both convicted and sentenced on that charge. (The State abandoned the charge of carrying a concealed firearm.)

The points raised on appeal are (1) that the pretrial identification was unnecessarily suggestive and conducive to irreparable mistaken identification so as to constitute a denial of due process, and (2) that the State failed to show that the in-court identifications were made independently and without the taint of the improper pretrial identifications.

In discussing the first point, we look to the test for identifications stemming from pretrial confrontations as set out in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411:

“. . . Whether, under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. (T)he factors to be considered in evaluating the likelihood of misidentification include the opportunty of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontations.”

Applying these factors to the evidence adduced in this case, we find that the trial court’s conclusions are amply supported by the record. In our opinion, the pretrial identifications were reliable and there was no substantial likelihood of misiden-tificatiofi. See Neil v. Biggers, supra.

As to the defendants’ second point, that the State failed to establish by clear and convincing evidence that the in-court identifications were made independently of the pretrial identifications, the record does not support this view of the evidence. Rather, the record shows that independent of the pretrial identifications, the in-court identifications were based on the observations of the witnesses during and at the scene of the crime. Therefore, no reversible error has been shown on this point. Accord Daniels v. State, Fla.App.1972, 262 So.2d 725; Hanks v. State, Fla.App.1974, 305 So. 2d 817; Sweet v. State, Fla.App.1975, 313 So.2d 130.

The trial court’s ruling on a motion to suppress comes to this court with a presumption of correctness. In testing the accuracy of the trial court’s conclusions, we should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in a light most favorable to sustain these conclusions. Rodriguez v. State, Fla.App.1969, 189 So. 2d 656, 660, concurring opinion by Judge Barkdull; State v. Bell, Fla.App.1971, 249 So.2d 748, 750. In so doing, we have concluded that the trial court was correct in denying the motions to suppress the pretrial and in-court identifications by the witnesses.

Affirmed.


author: OWEN, Judge.

text:
    Inge PINEBROOK, a/k/a Inge Fletcher, Appellant, v. William E. PINEBROOK, Appellee.
    Ne. 74-1655.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1976.

      Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto, Dean & Hallowes, P. A., West Palm Beach, and Gilbert T. Brophy, Tequesta, for appellant.
    Willard C. Wheeler, Jr., Jupiter, for ap-pellee.
   OWEN, Judge.

Appellant-wife is appealing from an order dismissing with prejudice her complaint to establish and enforce a California divorce decree as is relates to certain real property located in Florida.

The wife’s amended complaint is in two counts: the first seeks enforcement of that provision of the California divorce decree directing the parties to sell certain real property located in Jupiter — Tequesta, Florida, and to divide the proceeds therefrom equally between them; the second count requests, alternatively, that the Florida court provide for a division of the property in question based upon the concept of tracing community funds. In response to the complaint, the defendant-husband, appellee, filed a motion to dismiss the complaint on the ground that the court lacked jurisdiction “over the subject matter” because that aspect of the judgment sought to be enforced was a personal judgment which had been entered without acquiring personal jurisdiction over him in California. From the trial court’s order granting this motion and dismissing the complaint with prejudice, the wife now appeals.

The essential issue with which we are confronted is: whether the California court had personal jurisdiction over defendant so as to permit entry of a valid personal judgment against him which is, in turn, entitled to enforcement in this state under the full faith and credit clause of the United States Constitution.

We note initially that the submission and decision of this issue on a motion to dismiss was premature and improper. No suggestion has ever been made, here or below, that the court in which appellant’s amended complaint initiating the present action was filed was not the proper forum to entertain such an action, or that service of process over the husband consonant with the applicable Florida statutes was not obtained, and in the absence of these factors, the lower court lacked neither jurisdiction over the subject matter nor over the parties and the motion to dismiss should have been denied. Defendant’s motion, contesting, as it did, the jurisdiction of the California court to enter the judgment which the wife seeks to enforce in Florida, was plainly addressed to the merits of the cause and was properly a subject for a defensive pleading, not a motion to dismiss for lack of jurisdiction. Perceiving, however, that little would be accomplished by requiring the defendant and the lower court to present and decide this issue in its proper procedural context, as the practical result would undoubtedly be the same, and the identical issue would undoubtedly be returned to us, we have elected to address the merits of the case in its present posture.

The parties were married in California in 1964. They established a marital domicile in that state which they maintained for over eight years’ duration. At the time of the institution of the divorce action in California in 1973, the appellant and the parties’ minor son continued to reside in California. However, appellee was then residing in Utah and it was there that he was served with the summons and divorce complaint by certified air mail, return receipt requested. The record reflects that appellee signed the return receipt, but he made no appearance in the California action. A judgment of dissolution of marriage was subsequently entered, awarding appellant custody of the-parties' minor child, ordering appellee to pay alimony, child support and attorney’s fees, and directing the parties to sell the Florida real property (which is the subject of the present action) and to divide the proceeds therefrom. Appellee’s contention in this court is that the California judgment is a nullity insofar as it purports to order him to dispose of the Florida property because such is a personal judgment which can only be entered upon the acquisition of personal jurisdiction.

In order to determine whether or not the California court obtained personal jurisdiction over appellee, we must make a two-fold inquiry, Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679 (1968), cert. denied, 393 U.S. 847, 89 S.Ct. 130, 21 L.Ed. 2d 117 (1968); Mitchim v. Mitchim, 518 S.W.2d 362 (Tex.1975) ; Fox v. Fox, 526 S.W.2d 180 (Tex.Civ.App.1975); Wright v. Wright, 114 N.J.Super. 439, 276 A.2d 878 (Ch.1971): (1) does the law of the forum state (here, California) authorize acquisition of such jurisdiction by service of process in the manner here employed ; (2) were there sufficient minimum contacts between appellee and the forum state relevant to the cause of action to satisfy traditional notions of fair play and substantial justice.

With respect to the first question, § 410.-10 of California’s Civil Procedure Code, Title V: Jurisdiction and Service of Process, vests the California courts generally with the broadest possible jurisdiction:

“§ 410.10. [Jurisdiction exercisable]
A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.”

Subsequent sections in this title specify how this jurisdiction is to be invoked, Specifically, for our purposes, § 413.10 provides:

“§ 413.10. [Application of this chapter or foreign law to service in or outside this state and outside United States: Court’s direction]
Except as otherwise provided by statute, a summons shall be served on a person: (a) Within this state, as provided in this chapter.
(b) Outside this state but within the United States, as provided in this chapter or as prescribed by the law of the place where the person is served.
* if: s}:

This same chapter provides for five different forms of service of process [1] personal delivery, [2] delivery to a specified person, usually at defendant’s abode or place of business, [3] delivery by ordinary mail with return acknowledgement, [4] delivery by registered or certified air mail with return receipt, [5] publication), and § 415.40 expressly authorizes the use of any of these five forms for serving out-of-state defendants:

"§ . 415.40. Service on person outside state.
A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by any form of air mail requiring a return receipt. ...”

Clearly, California law authorized the manner of service employed in this case and allowed for the type of jurisdiction, based upon this service, that was exercised. The only caveat, insofar as California law is concerned, is that the exercise of this jurisdiction comport with the constitutional requirements of due process. These requirements are basically two: first, the manner of service employed must be reasonably calculated to give actual notice, Mullane v. Central Henover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); second, there must be sufficient minimum contacts, relevant to the cause of action, between the forum state and the person sought to be reduced to its jurisdiction to satisfy traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

As to the due process requirement that the form of service be reasonably calculated to give actual notice, we think that this requisite was satisfied in this case by serving appellee by certified air mail, return receipt requested. Such form of service has been deemed sufficient to acquire personal jurisdiction over out-of-state defendants in other types of actions, e. g., Travelers Health Ass’n v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950); McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) ; Rosenblatt v. American Cyanamid Company, 86 S.Ct. 1, 15 L.Ed.2d 39 (1965) (Goldberg, J. in Chambers), app. dism’d. 382 U.S. 110, 86 S.Ct. 256, 15 L.Ed.2d 192 (1965), and, although the divorce cases which we have examined which have dealt with the problem of acquiring personal jurisdiction over out-of-state residents have all been premised upon personal extraterritorial service, e.g., Soule v. Soule, 193 Cal.App.2d 443, 14 Cal.Rptr. 417 (1961), cert. den. 368 U.S. 985, 82 S.Ct. 600, 7 L.Ed.2d 523 (1962); Farah v. Farah, 25 Ill.App.3d 481, 323 N.E.2d 361 (1975); Hines v. Clendenning, 465 P.2d 460 (Okl.1970); Mizner v. Mizner, and other cases cited, supra, we see no reason to distinguish between these types of service and/or cases, or to require a more rigorous form of notice in divorce actions, the sole relevant criterion in every case being, under the particular circumstances of the case, whether the service is reasonably calculated to give notice so that defendant may appear and be heard.

We now turn to the second due process requirement and the second prong of our initially posed inquiry, whether appellee had sufficient minimum contacts with the forum state, California, to justify the imposition of personal jurisdiction. The power of a court to obtain personal jurisdiction over an out-of-state defendant has been greatly expanded since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877) which held that personal jurisdiction over a nonresident could only be obtained by personal service within the boundaries of the forum state or by the defendant’s voluntary appearance in the action. The basic modern rule was announced in International Shoe Co. v. Washington, supra:

“Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565, 572. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ’traditional notions of fair play and substantial justice.’ ” (emphasis supplied)

See also, McGee v. International Life Insurance Co., supra; Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The minimum contacts test has repeatedly been recognized as applicable to individuals as well as to corporations. Calagaz v. Calhoon, 309 F.2d 248 (5th Cir. 1962); Hamilton National Bank of Chattanooga v. Russell, 261 F.Supp. 145 (E.D. Tenn.1966); Owens v. Superior Court of Los Angeles County, 52 Cal.2d 822, 345 P.2d 921, 78 A.L.R.2d 388 (1959); J. W. Sparks & Co. v. Gallos, 47 N.J. 295, 220 A.2d 673 (1966); 62 Am.Jur.2d, Process, § 79, at 861 (1972). The types of contacts which have been held sufficient to justify subjecting an out-of-state defendant to a personal judgment have included doing business in the forum state, International Shoe Co. v. Washington, supra; soliciting and entering into contracts with residents of the forum state, McGee v. International Life Insurance Co., supra; Anno., 49 A.L.R.2d 668 (1956); producing and/or distributing goods anticipating their use in the forum state, see, Anno., 19 A.L.R.3d 13 (1968) ; Anno., 20 A.L.R.3d 957 (1968) ; committing a tortious act in the forum state, either with a dangerous instrumentality, Edmundson v. Hamilton, 148 So.2d 262, 99 A.L.R.2d 279 (Fla. 1962); Anno., 99 A.L.R.2d 287 (1965); 62 Am.Jur.2d, Process, § 82 (1972), [watercraft or motor vehicles, e.g.], or without, Owens v. Superior Court of Los Angeles County, supra; Anno., 78 A.L.R.2d 397 (1961), and, in recent years, as recognized by a growing body of case law, establishing and maintaining a marital relationship in the forum state, e.g., Mizner v. Mizner, supra; Mitchim v. Mitchim, supra; Fox v. Fox, supra; Dillon v. Dillon, 46 Wis.2d 659, 176 N.W.2d 362 (1970); Stucky v. Stucky, supra; Hines v. Clendenning, supra; Soule v. Soule, supra; Wright v. Wright, supra; Renwick v. Renwick, 24 Md.App. 277, 330 A.2d 488 (1975); Egbert v. Egbert, 125 N.J.Super. 171, 309 A.2d 746 (Ch.1973); see also, Rodriguez v. Rodriguez, 8 Ariz. App. 5, 442 P.2d 169 (1968).

The rationale for applying the minimum contacts test in matrimonial cases was well stated by the Supreme Court of Nevada in Mizner v. Mizner, supra, 439 P.2d at 680-1:

“. . .it seems to us that the minimum contacts concept of in personam jurisdiction is peculiarly suited to matrimonial support cases. If such contacts are in fact present in the particular case before the court, then the extension of in personam jurisdiction beyond the borders of the forum state may prove to be a sensible step in solving some of the hardships arising from family separation. Courts must know by this time that strict application of the Pennoyer rule to family support cases has encouraged migratory divorce by offering a shield to a spouse wishing to avoid financial responsibility. The state of the matrimonial domicile has a deep interest in its citizens and a legitimate purpose in taking steps to preclude their impoverishment. Accordingly, it is our opinion that in personam jurisdiction may be acquired over a non-resident defendant in a divorce action by extraterritorial personal service of process if (1) a statute of the support ordering state has authorized the acquisition of such jurisdiction in that manner, and (2) there exist sufficient contacts between the defendant and the forum relevant to the cause of action to satisfy ‘traditional notions of fair play and substantial justice.’ The demands of due process are satisfied in these circumstances.” [footnotes omitted]

As was pointed out by the New Jersey court, writing in Egbert v. Egbert, supra, 309 A.2d at 748:

“The existence of a marital domicile in a state has as many consequences as economic activity does . . . .”

Although the Mizner and Egbert cases were concerned specifically with the enforcement of matrimonial support provisions, we find their rationale equally compelling with regard to a provision directing a division of property such as involved in the case at bar. The enforcement of such a provision can be just as critical to the overall economic situation of the spouse remaining in the forum state as enforcement of a periodic support provision.

The minimum contacts held sufficient to satisfy due process in the cited matrimonial cases have consisted of as simple an act as maintenance of the last marital domicile within the forum state, coupled with the petitioning spouse’s continued residence in the forum state, Egbert v. Egbert, supra; Renwick v. Renwick, supra; in conjunction, in some cases, with the fact or assumption that the cause of action (for divorce) arose out of conduct in the forum state, Mizner v. Mizner, supra; Soule v. Soule, supra; Hines v. Clendenning, supra, and/or in conjunction, in other cases, with continuous and systematic maintenance of the family in the marital domicile after separation, Stucky v. Stucky, supra; Mitchim v. Mitchim, supra; Fox v. Fox, supra. At least two of these three factors are present in the case at bar and we therefore conclude that the facts of this case reflect sufficient minimum contacts to justify the acquisition of personal jurisdiction over appellee by the California courts.

Having concluded, therefore, (a) that California law permits acquisition of personal jurisdiction over a nonresident by extraterritorial mailed service, return receipt requested, and (b) that requiring a defendant to submit to such jurisdiction under these circumstances is consonant with the requirements of due process, we hold that the California divorce decree, insofar as it constituted a personal Judgment, is valid and therefore entitled to enforcement in our courts under the full faith and credit clause of the United States Constitution. Newton v. Newton, 245 So. 2d 45 (Fla.1971); Overly v. Overly, 66 So. 2d 706 (Fla.1953).

We find that the trial court further erred in dismissing the second count of appellant’s amended complaint, which requested the court to take in rem jurisdiction of the Florida realty, to trace community assets to that property, and to vest in appellant title to her share. Appellee has not briefed and thus appears to have conceded this point to appellant. We have, nevertheless, examined the grounds stated in his motion to dismiss the complaint below and disagree with his contention that the second count initiates an in personam proceeding and that it cannot be maintained upon mere constructive service as was had in this case. See, Fla.Stat. § 49.011(1) (1973).

The cause is reversed and remanded to the trial court with instructions to reinstate appellant’s amended complaint and lis pendens.

REVERSED and .REMANDED.

WALDEN, C. J., and DOWNEY, J., concur.

      . Herein lies the distinction between the case at bar and numerous eases upon which ap-pellee relies, wherein the forum state lacked the statutory or other legal authority for the jurisdiction which it purported to exercise. E. g„ May v. Anderson, 845 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) [no authority in the forum state for obtaining jurisdiction over the person] ; Farley v. Farley, 227 Cal.App.2d 1, 38 Cal.Rptr. 357 (1964), cert. den. 379 U.S. 945, 85 S.Ct. 438, 13 L.Ed.2d 543 (1964) ; Barber v. Barber, 51 Cal.2d 244, 331 P.2d 628 (1958) [no authority in the forum state for exercising jurisdiction over the subject matter]. Appellee concedes that California did at one time have a statute which authorized the acquisition of personal jurisdiction over nonresidents by extraterritorial service (former § 417 of the California Code of Civil Procedure), but he argues that this section has been repealed and that the current California Code no longer provides for such jurisdiction. We disagree. The California Legislature replaced § 417 with § 410.10, supra, and it is apparent from the face of this statute that it was intended to expand, not restrict, the permissible bases of jurisdiction. This is, in fact, California’s own interpretation of its new statute. See, the Historical Note following § 410.10; Schoch v. Superior Court of Contra Costa County, 11 Cal.App.3d 1200, 90 Cal.Rptr. 365 (1970).

      . This second requirement is, of course the second prong of our original inquiry, which we shall address shortly. Because the California statutes define judicial jurisdiction as coextensive with that which is constitutionally permissible, this question becomes necessary for the resolution of both of our initially posed queries, but we need of course, only answer it once.

      . Appellant calls our attention to the case of Foris v. Foris, 103 N.J.Super. 316, 247 A.2d 156 (Ch.1968) as an example of a matrimonial case approving acquisition of personal jurisdiction by service by registered or certified mail in another state. The defendant in Foris, however, at the time of such service, was still a domiciliary of the forum state; he was simply absent from its borders. This fact was crucial to the determination of that particular case in which the court relied heavily upon the principle set forth in Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940) :
      “ . . . the authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. . . . That relationship is not dissolved by mere absence from the state. . . . One such incidence of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a. reasonable method for apprising such an absent party of the proceedings against him.”
      See also, Stucky v. Stucky, 186 Neb. 636, 185 N.W.2d 656, 659 (1971) ; 62 Am.Jur. 2d, Process, § 71 (1972).

      . Appellee’s motion alleges, in pertinent part: “Count II of the Amended Complaint requests this Court take ‘in rem jurisdiction’. A proceeding in rem is ‘ . . . one taken directly against property, having for its object the disposition of such property by authority of law . . . .’ The allegations of Count II do not show an in rem proceeding but rather an in personam proceeding asking the Court to declare Defendant personally obligated for money damages on the basis of constructive or substituted service.”