author: PER CURIAM. .

text:
    Henry Eugene HELTON, Petitioner, v. PHOENIX INSURANCE COMPANY, Respondent.
    No. 46111.
    Supreme Court of Florida.
    April 7, 1976.
    Rehearing Denied May 14, 1976.
    Charles L. Cetti of Phillips, Williams, . McGraw, Cetti & Hall, Pensacola, for petitioner.
    Robert P. Gaines of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for respondent.
   PER CURIAM. .

We tentatively granted jurisdiction in this case on the basis of an apparent conflict of appellate court decisions, under Article V, Section 3(b)(3) of the Florida Constitution. Oral argument having been waived and the matter having been fully considered on the parties’ briefs, we now find that the writ was improvidently issued and should be, accordingly, discharged.

OVERTON, C. J„ and ROBERTS, -ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

ADKINS and BOYD, JJ., dissent.


source: Caselaw Access Project

author: McCORD, Acting Chief Judge.

license: Public Domain

text:
    CITY OF TITUSVILLE, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, and the Brevard County Police Benevolent Association, Respondents.
    Nos. Z-172 and Z-196.
    District Court of Appeal of Florida, First District.
    March 26, 1976.
    As Corrected on Denial of Rehearing May 14, 1976.

      Charles E. Freeman, Tallahassee, and Dwight W. Severs, for petitioner.
    Curtis Mack, Jack McLean, Tallahassee, and Joseph Moss, Cocoa, for respondents.
    Edward J. Richardson, Saxon & Richardson, Melbourne, for intervenor.
   McCORD, Acting Chief Judge.

This is a petition for writ of cer-tiorari to the Florida Public Employees Relations Commission from its Order No. 7SC-73-108, entered on July 2, 1975, and is an appeal from the same order. The appropriate method of review is a petition for review under the Florida Administrative Procedure Act, Chapter 120, Florida Statutes. We have consolidated the petition for certiorari and the appeal and will treat them as a petition for review of administrative action.

We will initially outline the events which culminated in the order from which review is taken. The petitioner City of Titusville (hereafter referred to as the City) and respondent Police Benevolent Association (hereafter referred to as PBA) proceeding under §§ 447.201-447.607, Florida Statutes, (Part II) “Public Employees” of Chapter 447 dealing with labor organizations, agreed that a secret ballot election would be held to determine whether PBA would represent a proposed bargaining unit of patrolmen, detectives, and radio dispatchers of the City’s police department. The proposed unit did not include sergeants and lieutenants. The election was held and all members of the proposed unit were permitted to vote. The PBA received a majority of the votes cast on April 9, 1975. The City recognized the PBA as the bargaining agent for the unit.

On May 2, 1975, PBA filed its recognition petition with respondent Florida Public Employees Relations Commission (hereafter referred to as PERC). PERC requested job descriptions of all employees included in the proposed unit and also of those excluded from it and they were furnished by the City. Thereafter, the petition was investigated by the staff of PERC and it filed a report recommending that the unit include all sworn officers of the police department of the rank of patrolman and detective which would exclude the radio operators from the unit as proposed.

The Commission then issued a notice on June 12, 1975, that a hearing would be conducted by it on June 27, 1975. Fifteen minutes was allowed for the hearing. The City did not attend the hearing as it was satisfied with the staff report removing the radio operators. The record of the hearing reveals that it was not a hearing in which sworn testimony and evidence was presented but was merely a discussion between the members of PERC, their staff, and the representative of PBA. Toward the end of the “hearing” one of the PERC commissioners moved approval of the certification except for the radio operators. That motion died for lack of a second and another PERC commissioner made a motion that the unit “include all sworn officers of the Titusville Police Department of the rank of patrolmen, detectives, lieutenants, and sergeants.” That motion was seconded and unanimously passed by all three commissioners. Thereafter, on July 2, 1975, the Commission’s order here under review was entered making no reference to its disapproval of the unit as proposed by PBA and acknowledged by the City but approving the unit to include “all sworn officers of the Titusville Police Department of the rank of patrolmen, detective, lieutenants and sergeants, and excluding the chief of police, commanders, radio operators and all other employees of the City of Titusville.” The order issued Certificate No. 88 to the organization and ordered that “the City of Titus-ville, the employer, and the Brevard County Police Benevolent Association shall bargain collectively in good faith with respect to wages, hours and terms and conditions of employment for the employees in the unit as provided for in F.S. 447, Laws of Florida (1974).”

The City contends that PERC exceeded its legislative authority and acted in contravention of Chapter 447, Florida Statutes, and Commission Rule 8H-2.09 in modifying the agreement between the City and PBA which formed the basis of PBA’s petition for certification.

The petition of PBA for certification was filed with PERC under Subsection (1) of Section 447.307, Florida Statutes, which provides as follows:

“(1) Any employee organization which is designated or selected by a majority of public employees in an appropriate unit as their representative for purposes of collective bargaining shall request recognition by the public employer. The public employer shall, if satisfied as to the majority status of the employee organization and the appropriateness of the proposed unit, recognize the employee organization as the collective bargaining representative of employees in the designated unit. Upon recognition by a public employer, the employee organization shall immediately petition the commission for certification. The commission shall review only the appropriateness of the unit proposed by the employee organization. If the unit is appropriate- according to the criteria used in this part, the commission shall immediately certify the employee organization as the exclusive representative of all employees in the unit.”

In considering the petition under the above statute, the Commission determines whether or not the unit is appropriate “according to the criteria used in this part” — the criteria are set forth in Subsection (4) of Section 447.307 which provides as follows:

“(4) In defining a proposed bargaining unit, the commission shall take into consideration :
(a) The principles of efficient administration of government.
(b) The number of employee organizations with which the employer might have to negotiate.
(c) The compatibility of the unit with the joint responsibilities of the public employer and public employees to represent the public.
(d) The power of the officials of government at the level of the unit to agree, or make effective recommendations to another administrative authority or to a legislative body, with respect to matters of employment upon which the employee desires to negotiate.
(e) The organizational structure of the public employer.
(f) Community of interest among the employees to be included in the unit, considering :
1. The manner in which wages and other terms of employment are determined.
2. The method by which jobs and salary classifications are determined.
3. The interdependence of jobs and interchange of employees.
4. The desires of the employees.
5. The history of employee relations within the organization of the public employer concerning organization and negotiation.
(g) The statutory authority of the public employer to administer a classification and pay plan.
(h) Such other factors and policies as the commission may prescribe by regulations or by its decisions.
However, no unit shall be established or approved for purposes of collective bargaining which includes both professional and nonprofessional employees unless a majority of each group votes for inclusion in such unit.”

Subsection (1) of Section 447.307 gives no authority to PERC to do other than to certify the employee organization if it finds such organization appropriate or to deny certification. PERC has no authority under the statute to change the unit and certify it as changed. If it finds the unit not appropriate, it should enter an order denying certification based upon an evidentiary hearing in which all parties are given notice adequate to apprise them of the issues as specifically as they can be stated so that the parties will know the specific objections which they must meet. The order entered thereafter should include findings of fact and conclusions of law separately stated as required by Section 120.59, Florida Statutes (the Administrative Procedure Act). Such an order is subject to review by this court pursuant to § 120.68, Florida Statutes.

PERC contends its action was executive or quasi-executive action rather than quasi-judicial and is not reviewable under Chapter 120. It cites authority which predates the new administrative procedure act (revised Chapter 120) in support of such contention. PERC would be correct under the old administrative procedure act. Section 120.31(1), Florida Statutes 1973, (the old act) provided in pertinent part as follows:

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

Section 120.20, Florida Statutes, 1973 (the old act) states the legislative intent as follows:

“It is the intent of the legislature to establish minimum requirements for the adjudication of any party’s legal rights, duties, privileges or immunities by state agencies . . . ”

Based upon the foregoing quotations from the old administrative procedure act, it was construed to allow review from judicial or quasi-judicial action only. Dickinson v. Judges of the District Court of Appeal, Fla., 282 So.2d 168 (1973); Bay National Bank and Trust Company v. Dickinson, Fla.App. (1st), 229 So.2d 302 (1969). The new act, however, materially changes the old and it is clear from the entire tenor thereof that all agency action is now reviewable by this court. Section 120.20 of the old act was repealed and no counterpart thereof is contained in the new act. Also, § 120.31(1) of the old act was repealed and the only counterpart contained in the new act is § 120.68(1), Florida Statutes 1975, which provides in pertinent part as follows:

“(1) A party wh'o is adversely affected by final agency action is entitled to judicial review. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”

We find that the action of PERC is subject to review by this court.

Petitioner, in addition, contends that the chairman of PERC did not have authority to deny its petition for rehearing independently of the other two commissioners who heard and ruled upon the case. We agree.

The hearing afforded to interested parties by PERC and the order entered by PERC thereafter were not in compliance with Chapter 120, Florida Statutes. The order is quashed and the cause is remanded pursuant to subsections (6) and (8) of § 120.68, Florida Statutes.

ENGLAND, ARTHUR J., Justice, and LEE, THOMAS E., Associate Judge, concur.

      . Compare State v. King, Fla., 50 So.2d 175, in which the Supreme Court affirmed a Circuit Court ruling that the Public Service Commission may issue a “for hire” permit without holding a hearing, but may not deny such a permit without hearing.


author: PER CURIAM.

text:
    W-G DEVELOPMENT CORPORATION, a Florida Corporation, Petitioner, v. Earl H. STARNES, as Director of the Division of State Planning, Department of Administration of the State of Florida, Respondent.
    No. 75-1006.
    District Court of Appeal of Florida, Second District.
    April 28, 1976.
    Rehearing Denied May 17, 1976.
    A. Broaddus' Livingston, Jacob D. Varn and John W. Boult of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for petitioner.
    Louis F. Hubener, III, Tallahassee, for respondent.
   PER CURIAM.

Petitioner filed its petition for writ of certiorari to review the action of the respondent, to wit, the issuance of a binding letter of interpretation under Florida Statute 380.06(4)(a). Upon consideration, we remand this cause to the respondent for further proceedings, including the taking of testimony to establish a sufficient record for review. Upon remand the respondent shall make findings of fact and conclusions of law.

Certiorari granted and the cause remanded for further proceedings in accordance with this opinion.

HOBSON; A. C. J., and GRIMES and SCHEB, JJ., concur.


author: SMITH, Judge.

text:
    HOSPITAL CORPORATION OF AMERICA, d/b/a North Florida Regional Hospital, Petitioners, v. Glenda Ann DIXON, Individually, as wife and as legal guardian of John Judd Dixon, a mental and physical incompetent, Respondents.
    No. AA-344.
    District Court of Appeal of Florida, First District.
    April 28, 1976.

      Richard T. Jones, Jones & Ritch, Gainesville, for petitioners.
    Gerald D. Schackow, Joe C. Willcox, Gainesville, and John R. Saalfield, Jacksonville, for respondents.
   SMITH, Judge.

By petition for certiorari the hospital asserts the trial court departed from essential requirements of law in ordering produced for inspection by plaintiff “all Incident Reports” prepared by the hospital from February 1973 until the date of the order, December 1, 1975, “regarding incidents where patients fell from their beds and wheel chairs while in the hospital . . . .”

The material requested is relevant. Rule 1.280(b)(1), R.C.P. The question is whether the incident reports are privileged documents prepared in anticipation of litigation by the hospital for its insurer and so are discoverable only on a showing that plaintiff has need of the materials in preparation of her case and is unable without undue hardship to obtain a substantial equivalent of the reports by other means. Rule 1.280(b)(2), R.C.P. In the absence of evidence supporting the hospital’s assertion that the documents are of a privileged nature, we are unable to fault the trial court for failing, if in fact the court did fail, to require that plaintiff make the showing specified by Rule 1.280 as amended in 1972. Surette v. Gallardo, 323 So.2d 53 (Fla.App. 4th, 1975). The petition is

DENIED.

MILLS, Acting C. J., and CAWTHON, VICTOR M., Associate Judge, concur.


author: BY THE COURT.

text:
    Perry Eugene LOVE and William Kenney, Jr., Appellants (Defendants) v. STATE of Florida, Appellee (State).
    No. AA-228.
    District Court of Appeal of Florida, First District.
    April 28, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.
   BY THE COURT.

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

Accordingly, the judgments of conviction and sentences are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: McCORD, Judge. BOYER, Chief Judge

text:
    EQUIBANK, N.A., a National Banking Association, Appellant, v. S. Perry PENLAND et ux., Appellees.
    No. Y-190.
    District Court of Appeal of Florida, First District.
    April 28, 1976.
    William S. Cross, Graham, Hodge, Swan & Larson, Ft. Lauderdale, for appellant.
    Walter C. Shea, Jacksonville, for appel-lees.
   ON MOTION TO DISMISS

McCORD, Judge.

This is a motion filed by appellees, S. Perry Penland, et ux., to dismiss the appeal brought by Equibank, N.A., from a final judgment on the pleadings in favor of the Penlands and an order denying Equi-bank leave to amend to reply to the Pen-lands’ affrmative defense. The suit in the court below was brought against the Pen-lands and others to foreclose a mortgage on real property. The Penlands’ alleged liability was predicated on their personal guarantees of a promissory note which secured the mortgage.

Equibank filed notice of appeal on April 14, 1975, and thereafter on October 8, filed a notice of voluntary dismissal without prejudice in the trial court as to all parties (the Penlands included). The Penlands’ motion to dismiss the appeal contends that Equibank’s notice of voluntary dismissal now renders this appeal moot. Equibank opposed the dismissal of the appeal and in responding to the motion to dismiss, alleges that the voluntary dismissal occurred as the result of the Penlands and Equibank reaching an agreement on August 1, 1975, as to the reinstatement and modification of the mortgage and note on the property. The agreement, copy of which Equibank attached to its response states as follows:

“S. Perry Penland and Sybil Penland join in the execution of this Commitment subject to a final determination in the pending appeal, in which event if found to be relieved from their obligatons under the existing loan this acceptance as to the Penlands’ will have no force and effect . . .”

The notice of appeal when filed divested the trial court of jurisdiction and invested jurisdiction in this court. While no order was entered on the notice of dismissal filed in the trial court, such notice was a nullity. Had an order of dismissal been entered, it would have been a nullity as jurisdiction was then in this court rather than the trial court. Thus, the cause remains pending in the trial court.

Rule 1.420(a)(1), F.R.C.P., sets forth the circumstances under which an action may be dismissed by the plaintiff without order of court. The dismissal here does not fit those circumstances. The action may not be dismissed by the plaintiff without order of court in a nonjury case after submission of the case to the court for decision. Here final judgment had been entered.

The motion to dismiss the appeal is denied.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I would grant the motion. On December 12, 1974, Equibank (plaintiff in the trial court and appellant here) filed a complaint to foreclose a mortgage, naming as defendants numerous parties, corporate and individual, including S. Perry Penland and Sybil Penland, appellees here.

On March 26, 1975, the trial judge entered a final judgment granting a motion of Penlands for a judgment on the pleadings in their favor.

On the same date (March 26, 1975) the trial judge entered another order by which he denied an oral motion of Equibank for leave to file a reply to the affirmative defenses asserted by Penlands in their answer to the complaint for foreclosure.

On April 15, 1975, notice of appeal was filed seeking review of both the final judgment and the above mentioned order.

According to an exhibit attached to the response filed herein by Equibank to the motion to dismiss filed by Penlands, a commitment letter was issued by Equibank on August 1, 1975, to one Neil F. Bayne by which Equibank agreed pursuant to the terms thereof to lend certain monies to Bayne to be secured by a first mortgage encumbering the property which was the subject matter of the foreclosure proceeding. The commitment is clearly between Equibank and Bayne. However, the scrivener and typist of the letter of commitment provided at the botton of the last paragraph thereof two lines for the signatures of Penlands, following a short paragraph which provided:

“S. Perry Penland and Sybil Penland join in the execution of this Commitment subject to a final determination in the pending appeal, in which event if found to be relieved from their obligations under the existing loan this acceptance as to the Penlands’ will have no force and effect; and provided further that this acceptance shall in no way ever serve to increase any liability or obligation of the Penlands, if any.”

Thereafter, on October 8, 1975, Equi-bank filed a voluntary notice of dismissal in the above mentioned foreclosure action, in which it is recited that the cause is voluntarily dismissed “without prejudice as to the following named Defendantsnam-ing Penlands and 25 other defendants, including Bayne.

On October 18, 1975, Penlands filed a motion to dismiss this appeal on the ground that voluntary dismissal of the cause from whence this appeal emanated rendered the appeal moot.

Equibank now seeks to avoid dismissal of this appeal on the ground of mootness, relying solely upon that portion of the language which appears at the bottom of the commitment letter between Equibank and Bayne which provides:

“S. Perry Penland and Sybil Penland join in the execution of this Commitment subject to a final determination in the pending appeal, * * *”

However, in so doing Equibank overlooks the concluding clause of the same writing:

“and provided further that this acceptance shall in no way ever serve to increase any liability or obligation of the Penlands, if any.”

Further, if the entire first compound clause of said writing is read in its entirety:

“S. Perry Penland and Sybil Penland join in the execution of this Commitment subject to a final determination in the pending appeal, in which event if found to be relieved from their obligations under the existing loan this acceptance as to the Penlands’ will have no force and effect;”

it becomes clear that the recitation regarding the “final determination of the pending appeal” was not for the purpose of preserving any right to Equibank but was, rather, a predicate for the next clause which relieves Penlands from any obligation under the terms of the commitment.

Analyzing the pending appeal in this case there are only two possibilities if the case continues and is not dismissed: af-firmance and reversal.

If the final judgment and order of the trial judge here appealed are affirmed then the case is concluded in favor of appellees Penlands.

Should we reverse, there is no cause pending in the trial court to which we may remand; it has been dismissed, specifically naming Penlands.

It is apparent that on and after October 8, 1975, there was and is no pending cause in the Circuit Court of Duval County from whence this appeal emanated.

Surely, this Court may not reverse and yet maintain the cause here for further proceedings.

The cause has been dismissed. There is no place for our mandate to go and no one to command.

Equibank now seeks to preserve its position by asserting that since the appeal in this Court deprived the trial court of jurisdiction it was without authority to dismiss the foreclosure action. Such contention misses the point. The trial court did not exercise nor attempt to exercise jurisdiction. It entered no order. The dismssal was voluntary and was by Equibank. This, in the absence of objection by an affected pary, Equibank had the right to do. There has been no objection. Further, Equibank should not be heard to claim its own act (voluntary dismissal) was a nullity.

This appeal is moot. I would grant Pen-lands’ motion to dismiss.


text:
    Bruce Edward HOWELL, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-270.
    District Court of Appeal of Florida, First District.
    April 28, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   BY THE COURT.

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

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Wilson J. MOSS, Appellant, v. STATE of Florida, Appellee.
    No. Z-29.
    District Court of Appeal of Florida, First District.
    April 28, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant was charged by information with seven counts of grand larceny, one count of resisting arrest with violence, and one count of assault and battery. On August 13, 1974, appellant was adjudged guilty on eight counts and sentenced to five years in the state prison on each count, sentences to run concurrently. Sentencing on the assault and battery charge was deferred. On February 18, 1975, the trial judge set aside each of the sentences previously imposed, and appellant was placed on five years probation. On June 4, 1975, the appellant was adjudged guilty of violating his probation and sentenced to six consecutive five year terms, two concurrent five year terms, all in the state prison, and to 60 days in the county jail. Appellant appeals from that judgment and sentence.

Appellant asserts that the trial court was without jurisdiction on February 18, 1975, to set aside the sentences imposed on August 13, 1974. Appellee candidly admits that appellant is correct. We agree.

The trial court was without jurisdiction to mitigate appellant’s sentence on a date more than 60 days after imposition of sentence and not within the same term of court. Florida Rule of Criminal Procedure 3.800(b); Sayer v. State, 267 So.2d 42 (Fla.App. 4th 1972); Ware v. State, 231 So.2d 872 (Fla.App. 3rd 1970); and State v. Evans, 225 So.2d 548 (Fla.App. 3rd 1969), cert. den. 229 So.2d 261 (Fla. 1969).

Reversed and remanded to the trial court with directions to reinstate the original sentence of August 13, 1974, giving credit thereon for time served.

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


text:
    ROBBIE’S YUM YUM TREE WEST, INC., et al., Petitioner, v. DIVISION OF BEVERAGE, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Respondent.
    No. Y-49.
    District Court of Appeal of Florida, First District.
    April 28, 1976.
    Mark H. Rodman and Robert A. Mick, of Henry, Buchanan & Rodman, Tallahassee, for petitioner.
    William D. Moore and William Hatch, Tallahassee, for respondent.
   McCORD, Acting Chief Judge.

This is a petition for certiorari (administrative review) to the respondent Division of Beverage, Department of Business Regulation, from an amended order of the Director of the Division of Beverage revoking petitioner’s beverage license and an order of the Board of Business Regulation quashing petitioner’s administrative appeal to that body.

The proceedings before the Director were pursuant' to Chapter 120, Florida Statutes 1973 (the old Administrative Procedure Act) and § 561.29, Florida Statutes. Petitioner was charged and found by the hearing officer (designated by the Division to conduct the hearing) to have allowed a convicted felon, one Robert Llewellyn, to have a financial interest in the licensed premises in violation of Sections 561.15 and 561.17, Florida Statutes, and was charged and found to have employed said Robert Llewellyn, a convicted felon in violation of Sections 561.29 and 562.13, Florida Statutes. The hearing officer recommended that “a civil penalty of $750 be assessed against the licensee or in lieu of the civil penalty that the license be suspended for a period of 20 days, and further order that Robert Llewellyn is not to have any control or authority whatsoever with the day-to-day operations of the premises.” The Director of the Division of Beverage approved and adopted the hearing officer’s findings of fact, but disagreed with his recommendation of penalty, stating as follows:

“The licensee had, on a previous occasion, admitted charges and paid a penalty for the presence of the undisclosed interest of Robert Llewelyn on the premises some two years earlier. With this warning, the licensee nevertheless continued to operate in such fashion that in hearing on the present charges, the Examiner found and concluded and we hereby find that the undisclosed interested person, Robert Llewelyn, now convicted of a felony, had received through the business some $20,000.00 (twenty thousand dollars), was responsible for the critical function of supervision of the employees in the entertainment business of the establishment, and is related as a son to the principle officer of the corporation. These facts establish that the recommended penalty of the Hearing Examiner would be insufficient to accomplish the purposes of the beverage law and the duties of this Division in enforcing control over this license holder. The imposition of a mere civil penalty would be insufficient to accomplish those purposes, that penalty being limited by statute to only $1,000.00 (one thousand dollars).”

The Director then revoked the license.

Upon our review of the briefs and record, we find there is competent, substantial evidence to support the order from which review was sought and there was no departure from the essential requirements of law. See Deel Motors, Inc. v. Department of Commerce, Fla.App. (1st), 252 So.2d 389 (1971), and Powell v. Board of Public Instruction of Levy County, Fla.App. (1st), 229 So.2d 308 (1970).

Petition dismissed.

MILLS and SMITH, JJ., concur.


text:
    CITY OF DUNEDIN, Florida, Appellant, v. CONTRACTORS AND BUILDERS ASSOCIATION OF PINELLAS COUNTY, a Florida Corporation, et al., Appellees. CONTRACTORS & BUILDERS ASSOCIATION OF PINELLAS COUNTY, A Florida Corporation, et al., Appellants, v. CITY OF DUNEDIN, Florida, Appellee.
    Nos. 74-401, 74-1017.
    District Court of Appeal of Florida, Second District.
    April 28, 1976.
    C. Allen Watts of Fogle & Watts, De-Land, for appellant-appellee, City of Dunedin.
    John T. Allen, Jr., St. Petersburg, for appellees-appellants Contractors and Builders Assn., et al.
    Ralph A. Marsicano, Tampa, and Burton M. Michaels, Tallahassee, for amicus curiae, Florida League of Cities, Inc.
   ■ORDER ON MANDATE

PER CURIAM.

Whereas, the judgment of this court was entered on April 30, 1975 (312 So.2d 763) reversing the judgment of the Circuit Court of Pinellas County in the above-styled case, and

Whereas, on review of this court’s judgment by certiorari, the Supreme Court of Florida, by its opinion and judgment filed February 25, 1976 (329 So.2d 314) and its mandate now lodged in this court, remanded to this court with directions to dispose of the question of costs and to thereafter remand for further proceedings in the trial court, and

Whereas, this court is now of the opinion that the judgment for costs was properly entered.

Now, therefore, it is ordered that the interlocutory appeal on the question of costs is hereby affirmed, and the mandate of this court heretofore issued in this cause on June 10, 1975, is withdrawn. The judgment of this court filed in this cause on April 30, 1975, is vacated, and the opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The cause is hereby remanded to the Circuit Court for further proceedings consistent with the opinion and judgment of the Supreme Court.

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


author: MILLS, Judge. MILLS, Judge.

text:
    Ralph K. ROBERSON, Appellant (Plaintiff), v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee (Defendant).
    No. Y-195.
    District Court of Appeal of Florida, First District.
    April 5, 1976.
    Rehearing Denied May 12, 1975..

      Daniel R. Vaughen, of Vaughen & Sta-ley, Deland, for appellant.
    Richard B. Rosier, of Sands, Smalbein, Eubank, Johnson, Rosier & Bussey, Day-tona Beach, for appellee.
   MILLS, Judge.

Plaintiff appeals from a final summary judgment rendered in favor of the defendant in a suit seeking to recover benefits under the medical payments coverage of an automobile liability insurance policy.

The issue before us is whether the trial court erred in entering the final summary judgment. The specific point is whether a cerebral vascular accident is an accident under the terms of the medical payments clause of the policy.

The facts are not in dispute. While stooping to examine a gas stove in his travel trailer, which was insured by the defendant, the plaintiff suffered a cerebral vascular accident. Plaintiff’s physician stated that somewhere in his brain something suddenly bled. The cause was unknown.

The defendant denied coverage contending there was no accident, because there was no external trauma or force.

The pertinent provisions of the medical payments clause are:

“To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, x-ray, and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services.
“Division 1. To or for the named insured and each relative who sustains bodily injury, sickness, or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, caused by accident, (a) while occupying the owned automobile, . . .”

Neither the term “accident” nor the term “caused by accident” is defined by the policy. In addition, there is an absence of qualifying or exclusionary language. In many policies, the terms are narrowed by limiting liability to injury or death caused by means described as external, violent, or accidental. But that is not done here.

Customarily, an accident is defined as an unexpected or unusual event; it is something which happens by chance and without design; it is an event from an unknown cause. Bennett v. Fidelity & Casualty Company of New York, 132 So.2d 788 (Fla.App. 1st, 1961).

The medical payments clause of an automobile liability insurance policy‘is closely akin to a personal accident policy. Government Employees Insurance Company v. Sweet, 186 So.2d 95 (Fla.App. 4th, 1966). An average person buying a personal accident policy assumes that he is covered for any fortuitous and undesigned injury. Gulf Life Insurance Company v. Nash, 97 So.2d 4 (Fla.1957).

Insurance policies are construed liberally in favor of the insured and strictly against the insurer. An insurer will not be allowed, by the use of obscure terms, to defeat the purpose for which the policy was procured. Where two interpretations are available, the one allowing the greater indemnity will prevail. National Casualty Company v. General Motors Acceptance Corporation, 161 So.2d 848 (Fla.App. 1st, 1964).

In 1952, the Florida Workmen’s Compensation Act defined accident as an unexpected or unusual event happening suddenly. In construing this provision, the Supreme Court of Florida stated that there was an accident if there was an unexpected result, although there was no unexpected cause. Gray v. Employers Mutual Lia bility Insurance Company, 64 So.2d 650 (Fla.1952).

Because the purpose of medical payments coverage is to provide personal accident insurance for bodily injury, sickness or disease caused by accident while occupying an insured automobile; because the insurer chose not to define, qualify, or narrow the term “accident”; because insurance policies should he construed in favor of the insured so as to provide the broadest possible coverage consistent with the language used; because the insured experienced an unexpected result when he stooped over, the cerebral vascular accident suffered by him came within the terms of the medical payments coverage.

Accordingly, the judgment entered in favor of the defendant is reversed, and this case is remanded to the trial court with directions to enter judgment for the plaintiff on the issue of liability only.

RAWLS, Acting C. J., and SMITH, J., concur.

ON PETITION FOR REHEARING DENIED

MILLS, Judge.

The defendant brings to our attention that we did not state the specific point involved on this appeal as it was stated in defendant’s brief. The defendant is correct. We now adopt the point as stated by defendant: whether a cerebral vascular accident is caused by accident under the terms of the medical payments clause of the policy. Having adopted the question as stated by defendant, our opinion remains unchanged.

We reverse and remand with instructions to enter judgment for plaintiff on the issue of liability only. ■

RAWLS, Acting C. J., and SMITH, J., concur.


text:
    David REAVES, Appellant (Plaintiff), v. J. D. HEMBREE et al., Appellees (Defendants).
    No. W-371.
    District Court of Appeal of Florida, First District.
    March 26, 1976.
    Rehearings Denied May 14, 1976.

      Barry D. Graves of Jones & Ritch, Gainesville, for appellant.
    Stephen B. Lewallen, Robert B. Cates of Hodgkinson & Cates, C. Valentine Bates of Jones, Bates & DeCarlis, and Leonard Ireland, Gainesville, for appellees.
   MILLS, Judge.

Reaves seeks reversal of an adverse final judgment entered by the trial court following a nonjury trial of a suit to impose a constructive trust on real property.

The basic issue before us is whether the trial court erred by failing to impose a constructive trust on the property.

Reaves, Wade Hembree, and J. D. Hem-bree entered into a contract to buy certain real property on which to construct and operate an apartment complex. Under a verbal agreement, Reaves and the Hem-brees were to share equally in the undertaking. Reaves was to provide architectural services, Wade Hembree was to provide construction services, and J. D. Hembree was to obtain financing for the project.

Because they were unable to obtain financing, it was necessary to take Hembree National Corporation into the venture. It was to obtain financing and to do this it was necessary to agree that title to the property be placed in the name of Hem-bree National. It was verbally agreed that Hembree National would have a one-half interest in the project, and Reaves, Wade Hembree, and J. D. Hembree would have a one-sixth interest each. On completion of the project, Hembree National was to re-convey a one-sixth interest in the property to each of the three individual members of the venture.

Hembree National took legal title to the property and executed a $65,000.00 purchase money mortgage to the grantors. It obtained a $1,100,000.00 construction loan from Commonwealth Corporation and a permanent commitment from Metropolitan Life Insurance Company to purchase the construction loan upon completion of the project.

During the course of the construction, financial problems were encountered. It appeared that foreclosure might become necessary. Interim financing of an additional $195,000.00 was necessary. During this period, the relationship between ■ the joint venture became strained, and efforts were made to sell the project without success.

Shortly after the complex was completed, Metropolitan took the first mortgage as agreed, and Commonwealth took a second mortgage. Several weeks later, without the knowledge or consent of Reaves, Hem-bree National sold or traded the complex to Ro-An Development Corporation at a purported loss to it of several hundred thousand dollars.

Hembree National and Ro-An had some of the same directors and employers. At a meeting of the directors of Hembree National Corporation, held at J. D. Hembree’s home, attended by Roberts, a director who was also president of Ro-An, the complex was conveyed to Ro-An. At this meeting J. D. Hembree informed all present that Reaves claimed an interest in the complex.

The trial court found that there was a joint venture between Reaves, Wade Hem-bree, J. D. Hembree, and Hembree National. However, because óf a cost overrun, there being no unjust enrichment as a result of fraud, undue influence, abuse of confidence, or mistake, the court refused to impose a constructive trust.

There is a fiduciary relationship between joint venturers. They owe each other the utmost good faith, fairness, and honesty. This is especially true of the venturer who is entrusted with the control of the property of the venture. Donahue v. Davis, 68 So.2d 163 (Fla.1953).

Generally a coventurer has no right to dispose of the property of the venture to a third party without the consent of the other coventurers. Accordingly, a purchaser of the property of the venture from a joint venturer, with knowledge of the right and title of the other venturers or with knowledge of facts sufficient to put him on inquiry of the rights of the other venturers, takes the property subject to these rights. 46 Am.Jur.2d 79.

A constructive trust is raised where property, though acquired without fraud, ought not to be retained by him who holds it. Quinn v. Phipps, 93 Fla. 80S, 113 So. 419 (1927).

There was a joint venture between Reaves, the two Hembrees, and Hembree National. Hembree National, to whom the property of the venture was entrusted, owed the three individual venturers the utmost good faith, fairness, and honesty. A fiduciary relationship existed between the venturers.

Hembree National had no right to dispose of the property of the venture without the consent of Reaves. Ro-An took the venture property from Hembree National with knowledge of facts sufficient to put it on inquiry of the rights of Reaves, in fact, had actual knowledge of Reaves’ interest. Therefore, Ro-An took the property subject to Reaves’ one-sixth interest.

Hembree National, a fiduciary, abused the confidence of Reaves and wrongfully converted the property of the venture by disposing of it to Ro-An when it should have conveyed a one-sixth interest to Reaves. Because Ro-An, the transferee of the property, was not a bona fide purchaser for value, it holds Reaves’ one-sixth of the property as a constructive trust.

The trial court erred. We reverse and remand with directions to set aside the judgment for appellees and to enter a judgment for appellant consistent with this opinion.

BOYER, C. J., and MELVIN, WOODROW M., Associate Judge, concur.

PETITION FOR REHEARING DENIED

MILLS, Judge.

In its petition for rehearing, Hembree National notes that certain facts recited in the opinion of this Court were incorrect. Although changing these facts will not affect the decision, for the sake of accuracy the following corrections are made:

1. Interim financing of $350,000 was obtained to complete the construction. The $195,000 financing mentioned in the opinion was a third mortgage on the property executed shortly before Ro-An bought the project.

2. The meeting of the board of directors, at which those present were informed of Reaves’ interest in the project, was not held at J. D. Hembree’s home as mentioned in the opinion, but rather at a country club in Titusville. The sale of the project and execution of the deed were held at a later date at J. D. Hembree’s home.

BOYER, C. J., and MELVIN, WOODROW M., Associate Judge, concur.


text:
    Willie Jasper DARDEN, Appellant, v. STATE of Florida, Appellee.
    No. 75-895.
    District Court of Appeal of Florida, Second District.
    April 30, 1976.
    Jack O. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We previously affirmed the appellant’s convictions but vacated the general 20-year sentence for robbery and assault with intent to commit first degree murder with firearms, and vacated the judgment and sentence for using a firearm while committing a felony. We remanded for re-sentencing with directions to the trial court to apportion the appellant’s negotiated 20-year sentence between the robbery and the assault convictions. Darden v. State, Fla.App.2d 1975, 306 So.2d 581.

The trial judge apparently misconstrued our previous opinion since upon remand he sentenced the appellant Darden to 20 years for robbery and 15 years for assault with intent to commit first degree murder with firearms, with the sentences to run concurrently.

We now vacate the sentences and again remand to the trial court with directions that the negotiated 20-year sentence be apportioned between the robbery and the assault counts. It was improper to sentence the appellant for 20 years on one count and then impose any further sentence, albeit concurrent, on the other count. The sum total of all sentences to be imposed must not exceed 20 years.

HOBSON, A. C. J., and GRIMES and SCHEB, JJ., concur.


text:
    BUDGET INVESTORS, LTD., a Florida Limited Partnership, Appellant, v. MINNEHOMA FINANCIAL COMPANY, a Delaware Corporation, Appellee.
    No. 75-153.
    District Court of Appeal of Florida, Second District.
    April 23, 1976.
    Eli H. Subin, Subin, Shams, Rosenbluth & Moran, Orlando, for appellant.
    Robert J. Pleus, Jr., and John B. Lieb-man, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Orlando, for appellee.
   PER CURIAM.

This case at first gave us pause. We now conclude after careful consideration that the trial judge was eminently correct in entering a final judgment in favor of appellee Minnehoma Financial Company.

McNULTY, C. J., and HOBSON and GRIMES, TT., concur.


author: BOYER, Chief Judge. BOYER, Chief Judge.

text:
    PETROLEUM CARRIER CORPORATION et al., Appellants, v. Philip D. GATES and Mary B. Gates, Appellees.
    No. Y-496.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    As Modified on Petition for Rehearing May 18, 1976.
    Robert P. Gaines, Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellants.
    Richard P. Warfield, Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellees.
   BOYER, Chief Judge.

Appellants, defendants in the trial court, appeal from a final judgment based on a jury verdict awarding appellees damages in the approximate amount of $31,000. Appellants request a new trial, arguing that the award of damages was excessive and that the trial court erred in directing a verdict on the issue of liability.

Appellees, Mr. and Mrs. Gates, initiated this action by filing their complaint for damages which was based on an accident between an automobile driven by Mrs. Gates and a tractor-tank trailer vehicle owned by appellant Petroleum Carrier Corporation. According to Mrs. Gates, three tractor-tank trucks were proceeding in a westerly direction on Highway 98 in the right lane while she was driving her Mercedes in the left lane. She noticed the lead tank truck moving from the right lane to the left lane in order to avoid an obstruction in the right lane.' When she was about a block away from "the obstruction, she claims that she slowed down, not by putting on her brake, but by easing off on the accelerator as the lead tank truck moved from the right to the left lane. As she slowed down, she was struck in the rear by the second of the three tank trucks.

The drivers of the three tank trucks view the accident somewhat differently. The driver of the lead truck stated that he did not see the collision because he was too far ahead (west) on Highway 98. The driver of the second tank truck testified that he was in the right lane, saw the obstruction ahead, slowed down to allow a car to pass him in the left lane, and finally moved into the left lane. He testified that he did not see the accident. The driver of the third tank truck, Steven C. Foster, stated that he saw the obstruction shortly before the driver of the second truck put on his left turn signal light. Mr. Foster turned on his own left turn signal and looked into his rear view mirror where he viewed Mrs. Gates’ Mercedes move from behind him into the left lane to pass. When the Mercedes passed his truck, Mr. Foster steered his truck into the left lane. He testified that when he noticed the brake lights on the Mercedes, he began applying his brakes. Foster’s truck rapidly overtook the Mercedes, and it appeared to him that the Mercedes had come to an almost complete stop, although he admitted on cross-examination that he could not tell whether the car was still moving or not. He testified that he was unable to stop his truck before striking the rear of Mrs. Gates’ automobile.

It is axiomatic that a directed verdict should be entered only where the state of the evidence is such that a jury of reasonable men could not reach a contrary result. Prior to the adoption of the comparative negligence rule by the Florida Supreme Court in Hoffman v. Jones, Sup.Ct. Fla.1973, 280 So.2d 431, numerous cases had held that the question of contributory negligence was ordinarily a matter for a jury’s determination. (E.g. Seibels, Bruce and Company v. Giddings, Fla.App.3rd 1972, 264 So.2d 103). Because of the very nature of the comparative negligence doctrine, situations in which directed verdicts will be appropriate will occur with even less frequency, particularly in cases where the plaintiff’s own negligence .is in issue. We. do not here express an opinion as to whether a directed verdict should ever be granted where the negligence of both parties is at issue. We do, however, believe that such cases will be extremely rare.

In the instant case, there is sufficient evidence from which the jury could have concluded that the sole proximate cause of the ■ collision was the inattention of Mrs. Gates, or that the sole proximate cause of the collision was the failure on the part of Mr. Foster' to have his vehicle under control, or that both drivers were negligent to some extent., Consequently, we remand the cause to the trial court so that the issue of liability might be submitted to a jury.

Appellants further argue that the award of damages was excessive and should be set aside. We do not find it necessary to address that issue as we are of the view that the retrial of the case will be more orderly if the issues of both liability and damages are tried together.

Reversed and remanded for further proceedings consistent herewith.

HATCHETT, JOSEPH W., and LEE, THOMAS E., Associate Judges, concur.

ON PETITION FOR REHEARING

BOYER, Chief Judge.

Upon consideration of the Petition for Rehearing timely filed herein, we recede from that portion of our foregoing opinion requiring a retrial of the issues of both liability and damages. Damages have already been determined by a jury. Although generous, it was clearly within the evidence and we do not find it excessive. Upon further consideration, we are of the view that there is no good reason for subjecting the parties to the expense of a retrial on the issues already settled by the jury. Upon retrial on the issues of liability the trier of fact may, upon appropriate instructions from the court, apply the law of causation and negligence and thereby determine the defendants’ proportionate liability, if any, for the plaintiffs’ damages which have already been determined.

As hereby modified, we adhere to our original opinion.

LEE, THOMAS E., and HATCHETT, JOSEPH W., Associate Judges, concur.


text:
    CAPRI WATER WORKS, INC., Appellant, v. COLLIER COUNTY, Appellee.
    No. 75-1632.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.
    Robert A. Neinas, Neinas & Goodlette, Naples, for appellant.
    Donald A. Pickworth, Collier County Atty., Naples, for appellee.
   PER CURIAM.

Affirmed. See Honolulu Rapid Transit Company v. Dolim, 9th Cir. 1972, 459 F.2d 551.

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


author: SCHEB, Judge.

text:
    Ruth Ann DOANE, Appellant, v. James E. DOANE, Appellee.
    No. 75-1372.
    District Court of Appeal of Florida, Second District.
    April 21, 1976.
    Rehearing Denied May 19, 1976.

      Edward A. Perse, of Horton, Perse & Ginsberg, and Beckham & McAliley, Miami, for appellant.
    Thomas E. Maloney, of Maloney & Crane, P. A., Naples, for appellee.
   SCHEB, Judge.

The appellant/wife challenges a final judgment in a dissolution of marriage suit, contending the trial court erred in (1) awarding insufficient alimony and child support; (2) awarding custody of the parties’ minor son to the appellee/husband; and (3) ordering partition and sale of the marital home when the youngest child attains majority. We affirm the award of alimony, reverse on the issue of custody and therefore remand for redetermination of child support, and reverse the order directing partition and sale of the marital home.

The parties were married in 1965 and have three children; James, Jr., age 10, Danielle, age 9, and Kelly Ann, age 8. The father is in his 50’s and the mother in her 30’s. The mother petitioned for custody of all three of the children, while the father requested custody of only their son. The children are well adjusted and get along well together. While the testimony shows that the mother has spent more time with the children and seemed to be in charge of their discipline, the record amply sustains the trial judge’s conclusion that both parties are fit and proper persons to be vested with custody of the children. Each is morally qualified and so situated to satisfactorily serve as a custodial parent. The trial judge awarded custody of James, Jr. to the father, and Danielle and Kelly Ann to the mother.

It is the function of the trial judge to award custody based upon his determination of what is in the best interest of the children. We have repeatedly held that in making this determination, the trial judge is vested with very broad discretion; our most recent expression to this effect being in Hosking v. Hosking, Fla.App.2d 1975, 318 So.2d 559. We recognize that an appellate court should not reverse the trial judge’s findings and award of custody absent an abuse in the exercise of that discretion. Dinkel v. Dinkel, Fla.1975, 322 So.2d 22.

In Arons v. Arons, Fla.1957, 94 So.2d 849, our Supreme Court held it was error to divide the custody of children by granting custody of the oldest child to the divorced husband and custody of the two younger children to the divorced wife. The court, speaking through Mr. Justice O’Connell said:

“We are impressed with the fact too that the decree of the chancellor, which divides the children of the parties, will result in further destruction of what is left, after divorce, of this family unit. We are of the view that the children in a family should not be separated from each other and distributed about in different homes, except for the most compelling cause. For while brothers and sisters may not have a legal right to remain together, to share each others lives, and to grow up together, certainly they have a natural right to do so. Justice requires that society exercise its moral duty to insure that children in a family enjoy this right until such time as absolute necessity and the welfare of the children, itself, requires their separation. Such necessity does not exist here.”

We recognize that the Arons decision is not without exceptions. Division of custody of the children in a family has been upheld in several cases. In each of these cases, however, there was substantial evidence of peculiar circumstances to justify such an award.

Here, the final judgment entered by the trial judge does not recite any compelling reason to provide for divided custody of the children between the parties, and our review of the evidence fails to reveal any compelling cause to separate the brother from his sisters. There was testimony by a psychiatrist that the boy would prefer to be with his father but the psychiatrist’s testimony also indicated that at that time the boy was better off being with his mother and sisters.

One of the most tragic results of a dissolution of marriage is the deprivation of the mutual privileges and responsibilities of parenthood. And, even though the trial judge does have broad discretion in matters of custody, we feel that here he abused his exercise of that discretion by separating the siblings. Whenever possible the family unit should not be further fractured as a consequence of a marriage being dissolved. Here, the brother and sisters would be deprived of growing up together with some common denominator of discipline and the advantages of sharing mutual experiences within the home and family unit. Although each parent appears to be a fit and proper person, we think that considering the various factors affecting the physical, mental, and moral development of children of such tender years, and in the absence of compelling reasons to the contrary, it is appropriate that custody of James, Jr., along with the other siblings, be vested in the mother. We hold the trial judge erred in not awarding custody of all three children to the mother who prayed for such custody.

The trial court awarded the wife $50,000 in lump sum alimony and required the husband to pay $500 per month child support and assume financial responsibility for all educational and medical expenses of the children. The wife was given exclusive use of the marital home, furnishings, and equipment until the youngest child obtains majority. During that period the husband is required to pay all taxes, insurance and utilities incident to the former marital home. The wife has not demonstrated any abuse of discretion on the part of the trial judge in the amounts of these awards; however, in view of our decision on custody, it is necessary for the trial court to redetermine the amount of child support.

The final judgment further provided:

“When the youngest son (sic) reaches majority or the wife remarries the marital home and its furnishings and appliances shall be sold and the net proceeds of the sale will be divided equally between the parties. The Court reserves jurisdiction for the purpose of overseeing any such sale.”

Since there was no prayer for partition and no consent to the trial of that issue, the trial court erred in providing for the sale of the marital home and distribution of the net proceeds thereof. See Rankin v. Rankin, Fla.App.2d 1972, 258 So.2d 489.

Reversed in part and affirmed in part and remanded to the trial court for further proceedings consistent with this opinion.

McNULTY, C. J., and BOARDMAN, J., concur.

      . See, e. g., Dulle v. Dulle, Ma.App.3d 1976, 325 So.2d 441; Reinhart v. Reinhart, Fla.App.1st 1974, 291 So.2d 103; Pollak v. Pollak, Fla.App.3d 1967, 196 So.2d 771; Brackin v. Brackin, Fla.App.1st 1966, 190 So.2d 816.


author: LEE, THOMAS E., Associate Judge.

text:
    Robert A. FITZSIMMONS, a minor, by his father and next friend, Thomas A. Fitzsimmons, and Thomas A. Fitzsimmons, Appellants, v. CITY OF PENSACOLA, a Municipal Corporation, Appellee.
    No. Y-69.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1976.
    Rehearing Denied May 18, 1976.
    R. P. Warfield, of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellants.
    Robert P. Gaines, Pensacola, for appel-lee.
   LEE, THOMAS E., Associate Judge.

This cause is before this court on the sole issue of the propriety of the trial court entering a summary judgment in favor of the defendant on the ground there was no genuine issue as to any duty on the part of the defendant to maintain in a safe condition the dock or wharf upon which the minor plaintiff was injured. It is our opinion that the court erred in granting summary judgment.

The pleadings, depositions and oral argument presented to this court have been considered in toto. Norman v. Bank of Hawthorne, Fla.App., 321 So.2d 112, “A trial court, in ruling on a motion for summary judgment, may not resolve controverted issues of fact. The principles of law applicable to summary judgment have been heretofore thoroughly discussed by this Court (Connell v. Sledge, Fla.App. 1st, 1975, 306 So.2d 194, Forrest v. Carter, Fla.App. 1st, 1975, 308 So.2d 141 and Burlingham v. Allen, Fla.App. 1st, 1975, 317 So.2d 781, opinion filed August 13, 1975) and nothing will be added to the jurisprudence of this State by again reciting those principles here.” See, also, Campbell v. Anheuser-Busch, Inc. and Nexbitt, Fla.App., 265 So.2d 557.

For the reasons stated, the summary judgment appealed is reversed and remanded for further proceedings.

BOYER, C. J., and HATCHETT, JOSEPH W., Associate Judge, concur.


author: McCORD, Judge.

text:
    Ann R. AKINS and Richard Donald Akins, Appellants, v. HUDSON PULP & PAPER COMPANY, INC., a corporation, et al., Appellees.
    No. Z-344.
    District Court of Appeal of Florida, First District.
    April 23, 1976.
    Rehearing Denied May 18, 1976.
    John Sproull, of Harriett & Sproull, Pal-atha, for appellants.
    Bruce S. Bullock and W. Douglas Childs, of Bullock, Sharp & Childs, Jacksonville, for appellees.
   McCORD, Judge.

This is an appeal from a summary judgment in favor of appellees, Hudson Pulp and Paper Company, Inc. (hereafter referred to as Hudson); June Barkett, a registered nurse in the employ of Hudson and Employers Mutual Liability Insurance Company of Wisconsin, Hudson’s insurance carrier. The suit was brought by appellant Ann Akins and her husband against appellees for damages allegedly suffered by Ann Akins when June Barkett allegedly treated a back injury which appellant had previously sustained and advised her to return to work. Appellant Richard Akins sued for loss of services of his wife, Ann, consortium and medical expenses. Prior to the suit, Ann Akins filed and litigated a claim for compensation under the Workmen’s Compensation Law, and appellees in their answer here asserted the affirmative defenses of res judicata and collateral es-toppel, based upon the order of the Judge of Industrial Claims. An examination of that order reveals that appellant contended in that proceeding that she sustained a compensable accident on November 4, 1971, and she contended in the alternative that her employment aggravated a pre-existing condition. The Judge of Industrial Claims found that there was no accident arising out of and in the course of her employment which either caused or aggravated her injury. Had there been any such aggravation, it would have been compensable under the Workmen’s Compensation Law. Howard v. Department of Public Safety, Fla., 187 So.2d 889 (1966); Victor Wine and Liquor, Inc. v. Beasley, Fla., 141 So.2d 581 (1961).

There is no dispute as to the material facts from the depositions on file and which were before the trial judge. It appears that before going to work on the morning of Thursday, November 4, 1971, Ann Akins coughed and felt an intense pain in her back down to her leg and toes. She went to work, however, where she worked as a bag-catcher, putting bundles of fifty paper sacks weighing approximately eight pounds per bundle into a bail-er. At 11:10 a. m., she left the job and went to the first aid station manned by ap-pellee Barkett, a registered nurse employed by Hudson. Ann Akins testified that nurse Barkett advised her the pain was due to a sciatic nerve which could only be relieved by soaking in a tub of hot water; that nurse Barkett also gave her two green pills and she then returned to work. She managed to complete her shift, went home, and went to bed. She called her regular doctor the next morning but could not get an appointment until the following Monday when she saw him and was hospitalized. Ultimately, it was determined that she had a ruptured disc. Appellee Barkett’s affidavit averred that she did not recall appellant seeking treatment at the first aid station for industrial injuries on the date in question and there was no record thereof. She stated that it was the policy of the company to dispense mild analgesic preparations to employees suffering from nonwork-re-lated disconfort; that one such preparation was a green and white tablet called Men-trax; that no records were kept of non-work-related complaints.

Appellant Ann Akins as above stated had litigated this same claim against Hudson in an action before the Industrial Relations Commission under Chapter 440, Florida Statutes, the Workmen’s Compensation Law. § 440.11(1), Florida Statutes, provides as follows:

“The liability of an employer ■. shall be exclusive and in place of all other liability of such employer to the employee . . . .”

By the second amended complaint of appellants in this cause, appellants contend that nurse Barkett, and Hudson vicariously, in treating and prescribing for Ann Akins, were guilty of negligence in failing to use the care and skill that a registered nurse of ordinary skill and learning in Putnam County would have used by failing to refer her to a physician for more adequate diagnosis and care; by failing to prescribe bed-rest and limitation of her activities; by failing to counsel or advise her against continuing work at her place of employment and engaging in other physical activities that might aggravate the injury; by allowing and directing plaintiff to return to her work station and perform the requirements of her work until the end of the work shift on which she was presently engaged; and by failing to properly diagnose the seriousness of her injury. The complaint then in effect alleges that such negligence on the part of Hudson and nurse Barkett caused her subsequent pain and suffering, three back operations, medical expense and loss of earnings and earning capacity in the past and future.

From appellant’s own testimony it appears that she went home after her work shift, went to bed and called her doctor the following morning but could not get an appointment until the following Monday when she saw him and was hospitalized. She has shown nothing that nurse Barkett did which would have aggravated her preexisting condition other than a contention that it was aggravated when, at nurse Bar-kett’s direction, she returned to her employment after visiting the first aid station. This matter was litigated before the Judge of Industrial Claims and was adjudicated against her contention. No review of the judge’s order was sought and it has become final. Section 440.11, Florida Statutes, and estoppel by judgment apply to bar this suit. In Gordon v. Gordon, Fla., 59 So.2d 40 (1952), the Supreme Court said:

“The difference which we consider exists between res adjudicata and estoppel by judgment is that under res adjudicata a final decree or judgment bars a subsequent suit between the same parties ' based upon the same cause of action and is conclusive as to all matters germane thereto that were or could have been raised, while the principle of estoppel by judgment is applicable where the two causes of action are different, in which case the judgment in the first suit only estops the parties from litigating in the second suit issues — that is to say points and questions — common to both causes of action and which were actually adjudicated in the prior litigation.”

Although nurse Barkett was not a party to the action before the Industrial Relations Commission, that action involved the same claim that is here being made. As stated in 46 Amjur.2d, Judgments, Section 571:

“It is said that where the liability of a master is derivative, a judgment on the merits in favor of the servant from whom the liability is derived may be set up as a defense by the master, although he was not a party to the earlier action. Similarly, where suit is brought against an employer for the alleged wrong of an employee, it is held that a judgment on the merits for the employer bars an action against the employee, . . . ”
(Emphasis supplied)

See also Annotation 31 A.L.R. 194.

Affirmed.

BOYER, C. J., and RAWLS, J., concur.


author: PER CURIAM. BOYER, Chief Judge

text:
    LYNRO, INC., a corporation, Appellant (Defendant), v. SOUTHEASTERN ASSOCIATES, INC., a Florida Corporation, Appellee (Plaintiff).
    No. W-420.
    District Court of Appeal of Florida, First District.
    April 28, 1976.
    Rehearing Denied March 18, 1976.
    Barry S. Sinoff and C. Wayne Alford of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for appellant.
    S. Gordon Blalock of Blalock, Holbrook, Lewis, Paul & Issac, Jacksonville, for ap-pellee.
   PER CURIAM.

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

Accordingly, the final judgment is affirmed.

RAWLS and MILLS, JJ., concur.

BOYER, C. J., concurs m part and dissents in part.

BOYER, Chief Judge

(concurs in part and dissents in part). '

I am of the view that the able and learned trial judge erred in dismissing Appellant’s Amended Counterclaim, Count 1 of which alleged a breach by Plaintiff (Appellee here) of the subject lease; Count 2 of which sufficiently alleged fraud in the inducement and Count 3 of which alleged a cause of action in negligence. I would therefore reverse as to that point. I otherwise concur.


text:
    BANKERS FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. James B. NEWMAN et al., Appellees.
    No. 75-2111.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1976.
    Rehearing Denied May 17, 1976.
    Ernest J. Rice, and John F. Lowndes, of Lowndes, Persol, Drosdick & Doster, P.A., Orlando, for appellant.
    William B. Wilson, of Maguire, Voorhis & Wells, P.A., Orlando, for appellee Curtis Katz.
   PER CURIAM.

Upon examination of the briefs and record on appeal and upon due consideration of oral argument we are of the opinion that the trial court erred in determining that the provisions of a surety bond issued by the plaintiff-appellant to secure payment of a promissory note created a contractual obligation to pay attorney’s fees in the event of default on the bond. See United Bonding Insurance Co. v. Inter National Bank of Miami, 221 So.2d 20 (Fla.App.3d 1969). While the promissory note provides for the payment of attorney’s fees on default, the bond itself imposes no such obligation. Moreover, the suit below was neither a suit on the note nor a suit against the surety to enforce the provisions of the surety bond but, rather, was a suit for declaratory judgment filed by plaintiff to determine its rights and obligations under the subject bond which suit was dismissed by the plaintiff prior to any determination resulting in the appealed order taxing costs and awarding attorney’s fees. In all other respects the final judgment is affirmed.

AFFIRMED, in part; REVERSED, in part.

CROSS and MAGER, JJ., and TROW-BRIDGE, C. PFEIFFER, Associate Judge, concur.


author: OWEN, Judge.

text:
    SEABOARD COAST LINE RAILROAD COMPANY and William A. Cagle, Appellants, v. Linda S. HELMAN, Appellee.
    No. 75-148.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    Rehearing Denied May 17, 1976.

      Frederick J. Ward of Giles, Hedrick & Robinson, P. A., Orlando, for appellants.
    James O. Driscoll of Driscoll, Conrad, Langston & Layton, P. A., Orlando, and Gordon V. Frederick, Sanford, for appellee.
   OWEN, Judge.

This is a personal injury action arising out of a railroad crossing collision between appellants’ train and the vehicle in which plaintiff was a passenger. The jury trial resulted in a verdict and judgment adverse to defendants/appellants.

Plaintiff/appellee tried this case on three theories of negligence on the part of the defendants in the operation of the train at the crossing: (1) defendants operated the train at an excessive speed under the circumstances; (2) defendants failed to give warning of the train’s approach, or a warning which was adequate under the circumstances; and (3) defendants failed to maintain a lookout or failed to maintain a proper lookout under the circumstances. Appellants’ primary contention is that the evidence is legally insufficient to sustain a finding of negligence in any of these respects as the proximate cause of the collision and the plaintiff’s resulting injuries and damages. Having reviewed the evidence relative to the negligence issues in a light most favorable to appellee, we conclude that appellants’ point is well taken and that the court erred in not granting appellants’ motion for directed verdict at the close of all of the evidence.

The collision under which this suit arose occurred at 8:05 p. m. on August 26, 1972, at the intersection of State Road 431, a paved two-lane highway running in a north and south direction, and a branch line track of appellant-railroad which at that point runs in an east-west direction. This is in an unincorporated area of Seminole County, Florida. The weather was cloudy with slight drizzling rain falling, dusk, but not yet dark. Appellants’ train, consisting of the engine, seven cars and caboose, was eastbound. Plaintiff was a passenger in a 1969 Ford pickup truck operated by her husband, Larry Helman, southbound on State Road 431. In the northwest quadrant of the intersection of the road and the track was a residence surrounded by trees and shrubbery, so located that a southbound motorist would have his view of eastbound trains obstructed until he was within seventy-five feet of the crossing. Mr. Helman had entered State Road 431 approximately a half a mile north of the railroad crossing, and from that point had driven south to the point of collision at a speed of approximately forty miles per hour. The window on the passenger side of the truck’s cab was up, the windshield wipers were on, the defroster on, and the lights on low beam. Although Mr. Helman was familiar with the road and well aware of the railroad crossing which he was then approaching, he neither heard nor saw the train until he was on or nearly on the track, an instant before the collision. The left front of the engine struck the right front and side of the truck. Appellee, Linda Helman, had no recollection of the accident or of the events immediately preceding it.

We consider first the evidence relating to the alleged lack or inadequacy of warning given by appellant as the train approached the crossing. Since the crossing was well marked (indeed, Mr. Helman was thoroughly familiar with it) and since the dual headlights on the engine were on bright intensity, plaintiff’s claim of lack or inadequacy of warning apparently relates solely to the audible warning system.

There was the not unexpected testimony of the train crew. The engineer testified that when the train was approximately one thousand feet west of the crossing, he turned on the automatic bell as one of his warning signals and that it was in continuous operation thereafter to the time of the collision. At the same time, so he said, he commenced the warning air horn signal consisting of two long blasts, a short blast, and a long blast with a pause between each, and he continued to blow the horn in this fashion with maximum intensity up to the time of impact. The brakeman, riding in the engine on the left side, substantially corroborated the engineer’s testimony.

There was the testimony of disinterested witnesses. Mr. Marvin Motes, operating a pickup truck northbound on State Road 431, was about fifty yards south of the crossing when he both saw and heard the train approaching from the west. When he brought his vehicle to a stop on the south side of the crossing, the train was then approximately a hundred yards west of the crossing with the horn blowing in--termittently. The window of his truck was down but the radio was playing. After Mr. Motes had come to a stop, he observed some three hundred fifty feet north of the crossing the vehicle driven by the witness Susan Thomas (hereafter discussed), and he then observed at about the same distance the Helman vehicle on State Road 431, approaching the crossing from the north. He continued to observe the Hel-man vehicle up until the collision, during which time the train’s horn was being blown intermittently. Susan Thomas was on First Street, approximately three hundred fifty feet north of the crossing, and had stopped at the intersection with State Road 431 to allow the southbound Helman vehicle to pass. Miss Thomas had her window down and heard the train horn blow two or three times from the time the Helmans passed her up to the time of the collision. Morris Hansen, whose residence was on the west side of State Road 431 approximately one-half mile north of the railroad crossing, testified that he was in his house with the windows closed and watching a television program when he heard the train horn blow at least three long blasts for the State Road 431 crossing.

Against this positive testimony of two train crew members and’ three disinterested witnesses, plaintiff pitted the negative testimony of Mr. Helman that he did not hear a train horn, and the negative testimony of the train’s conductor, riding in the caboose, that he did not hear the train horn.

The leading case in this jurisdiction on the sufficiency of negative testimony to sufficiency contradict positive evidence so as to create an issue for the trier of fact is the case of Seaboard Air Line Ry. Co. v. Myrick, 91 Fla. 918, 109 So. 193 (1926), wherein the court said:

“It is not alone sufficient for the injured plaintiff to say that he ‘did not see’ the approaching train, nor hear any whistle or bell or noise of its approach, in order to overcome positive evidence that all ordinary warnings were given of the train’s approach. When negative testimony is relied upon to contradict positive evidence, it should appear that the negative statements were made by persons whose attention was directed to the fact that they were looking, watching, and listening for the fact. Not only that the opportunity for observing the fact existed, but that their attention was directed to the fact. The word ‘see’ or ‘hear,’ when used in a negative statement, is often used to express the negation of apprehension or conscious knowledge. One may see or hear and yet not observe; that is, not have a conscious knowledge of the object or noise he actually sees or hears, and, ordinarily, when questioned as to the fact, will say that he did not see or hear. Yet it is certain that in a case like this the defendant cannot be held liable for a failure of duty because the noise of the approaching train, the sounding of its whistle, and ringing of its bell failed to awaken the mental activity of the person injured to that degree where he could be said to have had a conscious knowledge of the existence of the warning sounds.
A mere statement that ‘I did not see or hear’ the train or the noise made by its approach as against affirmative evidence of,credible witnesses that it did approach and made sufficient noise in doing so reasonably to attract the attention of others cannot be said to create a conflict of evidence justifying a submission of the question to the jury. See Culhane v. N. F. Cen. & H. R. R. R. Co., 60 N.Y. 133; Tolman v. Syracuse, B. and N. Y. R. R. Co., 27 Hun. 325; McKeever, Administratrix v. The New York Central & Hudson River Ry. Co., 88 N.Y. 667.”
(109 So. at 195-96.)

This rule of law has been consistently recognized and applied by the courts. See, Powell v. Gary, 146 Fla. 334, 200 So. 854 (1941); Loftin v. Kubica, 68 So.2d 390 (Fla.1953); and Tyus v. Apalachicola Northern Railroad Company, 130 So.2d 580 (Fla.1961). In this last cited case, the court emphasized that there were certain circumstances under which so-called negative testimony could be “positive in effect” stating, at 585:

“The gist of our rule in relation to negative testimony in the face of positive testimony to the contrary is that if a jury decides that the attention of the witness whose testimony is negative in character, is actually directed to the fact or situation, about which he later testifies, regardless of the reason therefor, said jury may consider such negative testimony and accord to it the weight it may deem proper.”

Bearing in mind this teaching of the Tyus case, we have examined the record to see if there are facts from which the jury could reasonably infer that either Mr. Helman or the train conductor had his attention actually directed to the matter of audible signals as the train approached the crossing. We find none, and this being so, it follows under the rule of the Myrick case, supra, that such negative testimony had no probative value. We must conclude that plaintifff/appellee did not establish any negligence on the part of appellants in failing to give an adequate warning of the train’s approach.

Plaintiff/appellee introduced evidence of a human factors engineer who opined that the one hundred sixteen decibels of the engine’s air horn was simply inadequate in volume or intensity to be heard by the driver of the Helman vehicle because the horn’s sound at two hundred feet in front of the engine dropped to approximately seventy-three to seventy-five decibels which was inaudible in the cab of the pickup truck where the noise level was at ninety-three to ninety-seven decibels. Considering the positive testimony of the several disinterested witnesses who were able to hear the horn’s sound at various distances from the crossing, such opinion testimony would have no probative value beyond explaining why Mr. Helman did not hear the train’s horn. Surely one cannot raise the noise level in one’s own vehicle, for example by operation of air-conditioner, radio or tape player, etc. while excluding outside noise, for example by closing all windows, and then be heard to claim that a warning signal was inadequate simply because it could not be heard within the vehicle.

We next consider the evidence relating to the claim that the train was being operated at an excessive speed under the circumstances. The company rule provided for a speed of twenty miles per hour at this crossing. Nowhere do we find any suggestion made that operation of the train at twenty miles per hour is negligence, and all the witnesses’ trial testimony on the issue of speed placed the train’s speed at twenty miles per hour or less as it entered the crossing. The only evidence to the contrary was the deposition testimony of the train’s engineer which, placed into evidence by plaintiff/appellee, stated the train’s speed at twenty-five miles per hour. Faced with this apparent inconsistency, the engineer testified that the deposition testimony had been incorrectly reported and he then sought to confirm the inaccuracy of the deposition in two ways: first, by pointing to his testimony that the train was travelling at twenty-five miles per hour at a point approximately six hundred or seven hundred feet west of the crossing when he made a service application of the brakes preparatory to bringing the train to a stop several hundred yards east of the crossing, the effect of which was to materially reduce the speed of the train by the time it reached the crossing; second, by pointing out that at the deposition he had exhibited to plaintiff’s counsel the written statement which he had given to his employer on the day following the accident, in which written statement the engineer had stated that the train’s speed as it entered the crossing was twenty miles per hour. Assuming, however, that on this evidence the jury could find that (1) the train was travelling twenty-five miles per hour when it entered the intersection, and (2) speed in excess of twenty miles per hour was negligence, it is abundantly clear that the excessive speed was not the proximate cause of the collision. The driver of the pickup truck in which plaintiff/appellee was passenger neither looked nor listened for the train and was completely unaware of the train’s approach until an instant before the collision. At that point the collision was inevitable, irrespective of whether the train was then travelling twenty-five miles per hour or only twenty miles per hour.

Finally, we turn to the evidence relating to the alleged failure of appellants to maintain a proper lookout under the circumstances. The only evidence relating to this was from the train crew, primarily the brakeman. He testified that he was, in fact, watching the crossing, that he saw the Helman pickup truck as quickly as it was possible for him to have seen it after it reached a point where his view was no longer obstructed by the residence and trees in the northwest quadrant of the intersection, and that he immediately yelled a warning to the engineer and immediately reached for and applied the emergency brake. Of course, even with a proper lookout and an immediate application of the emergency brake after the danger was noted, the train and the truck were then in such close proximity that the collision was no longer avoidable. It is thus clear not only that was there no evidence to show that appellants had failed to maintain in a proper lookout, but also that the absence of a proper lookout (had such been the case) could not have been the proximate cause of the subsequent collision.

The judgment is reversed and the cause remanded with direction to enter judgment for appellants.

REVERSED and REMANDED.

WALDEN, C. J., and REASBECK, JAMES M., Associate Judge, concur.


author: MILLS, Judge. BOYER, Chief Judge

text:
    ZERO FOOD STORAGE DIVISION OF AMERICAN CONSUMER INDUSTRIES, INC., a New Jersey Corporation, Appellant (Plaintiff), v. DEPARTMENT OF REVENUE, State of Florida, a board and agency of the State of Florida, Appellee (Defendant).
    No. V-496.
    District Court of Appeal of Florida, First District.
    March 30, 1976.
    Rehearing Denied May 18, 1976.

      Ronald A. Shapo, of Shevin, Shapo & Shevin, and Pallot, Poppell, Goodman & Slotnick, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., for ap-pellee.
   MILLS, Judge.

The trial court upheld the Department’s assessment of rental taxes (Section 212.-031, Florida Statutes) against Zero. This appeal results.

From 1 May 1969 to 1 April 1970, Zero occupied a building owned by American Consumer Industries, Inc., who also owned Zero. Zero contends that there was no tenancy between American and it, and that the monthly sum of money paid by Zero to American was a cash contribution between subsidiary and parent, not rent. However, the monthly sum paid by Zero to American was carried on the corporate books as rent. The trial court found that the monthly payment made by Zero to American was rent. We agree.

Zero operated a cold storage warehouse in the building which was used for the storage of food only. Zero urges that under the provisions of Section 212.08(1), Florida Statutes, it is exempt from taxation. This section exempts food from the tax imposed by Chapter 212, Florida Statutes. Chapter 212 imposes a sales tax, a use tax, rental taxes and admission taxes. Each tax is assessed for the exercise of a separate and distinct taxable privilege. The preamble to Section 212.08 provides:

“The sale at retail, the rental, the use, the consumption, the distribution and the storage to be used or consumed in this state, of the following tangible personal property, are hereby specifically exempt from the tax imposed by this chapter.”

The exemption referred to in Section 212.08 applies only to tangible personal property, and does not apply to the renting of real property with which we are involved here. The trial court held that Zero was subject to the rental tax. We agree.

American sold the building to Prudent Investors Trust in April 1970, and it was leased by Prudent to Zero from 1 May 1970 through May 1972. During this period, Zero rented parts of the building to others for a profit. Zero paid the rental tax on the rent it paid to Prudent, but did not collect the rental tax from those to whom it sublet.

Zero contends that Section 212.-031 (2) (b), Florida Statutes, prohibits the state from collecting more than one tax on the rental for the use of the property, and prohibits the pyramiding of taxes. Therefore, it is not required to collect rental taxes from its sublessees. The tax provided by Section 212.031(1), Florida Statutes, is a tax on the privilege of renting property. It is not a tax on the property.

Section 212.031(2)(a), Florida Statutes, places the tax on the tenant. The legislative intent is expressed in Section 212.-12(11), Florida Statutes: whenever there is any question respecting a duplication of the tax, the end consumer or last retail sale shall be the sale intended to be taxed. The Department has interpreted the provisions of Section 212.031 (2) (b) by Regulations 12A~1.70(6) and 12A-1.70(7). Subsection (6) provides that a tenant who sublets and collects rentals on a taxable portion of the property must register as a dealer and collect and remit the tax on subrentals. Subsection (7) provides that when a tenant sublets a portion of the leased property, he may take credit on a pro rata basis for the tax that he paid to his landlord on the space he subleases. Proration shall be computed on a square footage or other basis acceptable to the Department.

The Department’s method is consistent with the intent of the statute. It is reasonable and provides equal treatment to all similarly situated. The rental tax is paid by the ultimate consumer on only that amount of the building he occupies. Only one tax is collected on the occupancy or use of the entire property. There is no pyramiding. The tax is only collected from a tenant or subtenant on the rent charged for the space occupied by him. This is done by giving a credit to the prime tenant for the space he sublets only one tax is collected on the actual occupancy or use of the property. The trial court held that neither Section 212.031(2) (b) nor the Department’s administration of it was arbitrary, unreasonable, or discriminatory, and that the Department’s administration of the section provided equal treatment to all who were similarly situated. We agree.

Under the provisions of Section 212.-12(2), Florida Statutes, the Department assessed a penalty against Zero because it did not pay the tax within the timé required by Chapter 212, Florida Statutes. Zero contends the Department abused its discretion in assessing the penalty becauáfe it acted in good faith.

The trial court refused to set aside the penalty. We agree. Zero should have timely paid the tax under protest, and then brought suit.

The final judgment is affirmed.

TENCH, BENJAMIN M., Associate Judge, concurs.

BOYER, C. J., concurs in part and dissents in part.

BOYER, Chief Judge

(concurring in part and dissenting in part).

I dissent. As to the first point, appellant argues that the trial court erred in classifying as rental payments subject to taxation pursuant to F.S. 212.031 cash contributions from a wholly owned subsidiary to its parent. The monies were not transferred on any fixed date. No rental deductions were ever taken by either party. There was no written lease nor rental agreement. Each party to the transfers considered the “payments” as simple inter-corporate transfers bearing no relation to the rental value of the premises. Appellant is correct. The power to tax is the power to destroy. Uncertainties and ambiguities in taxing statutes must be resolved in favor of the taxpayer. (See Department of Revenue v. Brookwood Assoc., Ltd., Fla.App. 1st 1975, 324 So.2d 184) We may take judicial notice that the legislature convenes annually. If it desires to remove any uncertainties in the taxing structure it is free to do so. I would reverse.

As to the last point relating to the penalty assessed pursuant to F.S. 212.12(2), the final judgment in favor of appellee should be reversed so far as it approves a penalty for failure to pay taxes on the inter-corporate cash transfers referred to in the pre-ceeding paragraph hereof.

In all other respects I concur in affirmance.


author: MILLS, Judge.

text:
    Opal C. GRIZZARD and Warner L. Grizzard, Appellants (Plaintiffs), v. COLONIAL STORES, INC., d/b/a Big Star Foods, Appellee (Defendant).
    No. X-290.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Rehearing Denied May 18, 1976.

      Clyde N. Wells, Jr., Jacksonville, for appellants.
    John C. Taylor, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
   MILLS, Judge.

The question raised by this appeal is whether the trial court erred in directing a verdict in favor of the defendant in a slip and fall case.

While shopping in the Big Star grocery store, Mrs. Grizzard slipped in a foreign substance on the floor, fell, and injured herself.

Mrs. Grizzard does not contend that the substance was placed on the floor by an agent or servant of Big Star.

To hold Big Star liable for her injuries, Mrs. Grizzard must prove that the substance on the floor existed for a sufficient length of time to charge Big Star with constructive knowlege. This may be proved by circumstantial evidence. Winn Dixie Stores, Inc. v. Williams, 264 So.2d 862 (Fla.App.3d, 1972).

The foreign substance in which Mrs. Grizzard slipped was identified as partially frozen, partially liquified orange juice concentrate. A partially opened can of orange juice concentrate which was partially frozen and partially liquified was found in a nearby freezer after the fall. A jury could find that the substance on the floor was there long enough to partially thaw. A jury could further find that the frozen concentrate was on the floor for a sufficient time to constitute notice. The manager-trainee made an inspection of the area where Mrs. Grizzard fell several minutes before her fall. But this is not to say that the substance could not have been on the floor and not seen by the manager-trainee. The color of the floor was similar to the color of the concentrate.

We consider the evidence sufficient to charge Big Star with constructive knowledge of the condition. Therefore, a jury issue is raised as to Big Star’s negligence.

The final judgment for the defendant is reversed and set aside, and this case is remanded for a trial on all issues.

BOYER, C. J., and McCORD, J., concur.


text:
    John STEPHENS, Petitioner, v. Harry MORRISON, State Attorney for the Second Judicial Circuit of the State of Florida, and Judges of the Second Judicial Circuit, in and for Leon County, Florida, Respondents.
    No. BB-78.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Rehearing Denied May 18, 1976.

      Frank A. Graham, Jr., of Graham & Vossler, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for respondents.
   PER CURIAM.

John Stephens, Relator, was tried under two counts of an information with delivering worthless bank checks. He appealed his conviction and sentence whereupon this Court reversed, reciting that there was a fatal variance between the allegata (of the charging information) and the probata. (Stephens v. State, Fla.App. 1st 1975, 324 So.2d 190)

Subsequent to our opinion and mandate in that case, the State again charged Stephens by information with violations of the same statute by issuance of the same checks involved in that case. Stephens then filed herein a Suggestion for Writ of Prohibition: on the ground of double jeopardy and we issued Rule Nisi. Upon consideration we determine that the Petition for Writ of Prohibition should be granted and the Rule Nisi made absolute.

IT IS SO ORDERED.

BOYER, C. J., and RAWLS and SMITH, JJ., concur.