author: BOYD, Justice. SUNDBERG, Justice,

text:
    DESERET RANCHES OF FLORIDA, INC., Appellant, v. Dorothy BOWMAN, etc., et al., Appellees.
    No. 49241.
    Supreme Court of Florida.
    April 21, 1977.
    Rehearing Denied Sept. 6, 1977.
    Philip W. Watson and George T. Eidson, Jr., of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Bruce E. Chapin, Orlando, for appellees.
   BOYD, Justice.

In December 1975 Dorothy Bowman and other trustees of a certain trust filed a complaint in the Circuit Court, Ninth Judicial Circuit, in and for Osceola County, against Deseret Ranches of Florida, Inc. Among the types of relief sought was establishment of a way of necessity pursuant to Section 704.01(2), Florida Statutes:

“(2) Statutory way of necessity exclusive of common law right. — Based on public policy, convenience, and necessity, a statutory way of necessity exclusive of any common law right exists when any land or portion thereof outside any municipality which is being used or desired to be used as a dwelling or for agricultural or for timber raising or cutting or stockrais-ing purposes shall be shut off or hemmed in by lands, fencing, or other improvements of other persons so that no practicable route of egress or ingress shall be available therefrom to the nearest practicable public or private road. The owner or tenant thereof, or anyone in their behalf, lawfully may use and maintain an easement for persons, vehicles, stock, and electricity and telephone service over and upon the lands which lie between the said shut-off or hemmed-in lands and such public or private road by means of the nearest practical route, considering the use to which said lands are being put; and the use thereof, as aforesaid, shall not constitute a trespass; nor shall the party thus using the same be liable in damages for the use thereof; provided that such easement shall be used only in an orderly and proper manner.”

The complaint alleged that plaintiffs owned real property which was surrounded by land owned by the defendant and that no route of ingress or egress was available from their land to the nearest public or private road. Alleging further requirements necessary to establish a cause of action under the statute, Count II of the complaint requested that the court establish a statutory way of necessity over the land of Deseret Ranches to provide access to the nearest road.

Deseret Ranches moved to dismiss Count II of the complaint on the ground that the statute is unconstitutional. The court denied the motion and in so doing directly passed on the constitutional validity of the statute. The interlocutory order was appealed by Deseret Ranches to this Court. The appeal is treated as a petition for cer-tiorari. We have jurisdiction.

Appellant’s only meritorious argument against the statute’s constitutional validity is that it violates Article X, Section 6(a) of the Florida Constitution (1968):

“SECTION 6. Eminent domain.—
“(a) No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.”

The argument is that in contravention of the foregoing provision no purpose which is predominantly public is served by the taking of easements through operation of the statute. Although it is conceded that the statute provides a public benefit, it is argued that the benefit is incidental to a purpose which is predominantly private, that purpose being to provide a private land owner with conventional access to the outside world.

In 1961, before the adoption of the Florida Constitution of 1968, there was advanced in Stein v. Darby a similar argument against the statute, cast in terms of unconstitutionality under both the Florida Constitution of 1885 and the Fourteenth Amendment to the United States Constitution. After an excellent review of the common law history of the doctrine of ways of necessity, the Court concluded that the doctrine is grounded in the public policy against the loss of the use of landlocked property. As to the statutes’ provision for ways of necessity, Stein stated,

“ . . .we find no logic in the argument that the statute in question, which aids to render the earth — from which all sustenance flows — available to the uses of man, is unconstitutional as serving something other than a public purpose.” 126 So.2d at 320.

Appellant contends that the intervening adoption of the 1968 Florida Constitution, including Article X, Section 6(a) and its “public purpose” requirement, mandates a different result from that reached in Stein and, Article X, Section 6(a) aside, that Stein was wrongly decided.

We agree with the reasoning in Stein and hold the statute constitutional under the present Constitution. The inverse of appellant’s contention is true: the statute’s purpose is predominantly public and the benefit to the private landholder is incidental to the public purpose. Although state public policy may have altered with respect to the methods of land use since 1961, sensible utilization of land continues to be one of our most important goals. We take notice that Florida grows in population at one of the fastest rates of any state in the nation. Useful land becomes more scarce in proportion to population increase, and the problem in this state becomes greater as tourism, commerce and the need for housing and agricultural goods grow. By its application to shut-off lands to be used for housing, agriculture, timber production and stock-raising, the statute is designed to fill these needs. There is then a clear public purpose in providing means of access to such lands so that they might be utilized in the enumerated ways. The statute therefore is in keeping with Article X, Section 6(a), Florida Constitution.

Certiorari is denied.

It is so ordered.

OVERTON, C. J., and ADKINS, HATCHETT and DREW (retired), JJ., concur.

SUNDBERG, J., dissents with an opinion, with which ENGLAND, J., concurs.

SUNDBERG, Justice,

dissenting.

I must respectfully dissent from the majority opinion which upholds as nonviolative of Article X, Section 6(a), Florida Constitution of 1968, the provisions of Section 704.-01(2), Florida Statutes (1975). Article X, Section 6(a), is a brief restatement of Article XVI, Section 29, and the Declaration of Rights, Section 12, Florida Constitution of 1885. See commentary to Article X, Section 6, 26A Florida Statutes Ann. 479. The conditions of both the former and current constitutional mandates are the same. No private property shall be taken “except (i) for a public purpose (ii) and with full compensation therefor paid to each owner.” There can be no doubt that the condition of full compensation is met by the statute in question. Section 704.04, Florida Statutes (1975), provides a judicial remedy and compensation to the servient owner when Section 704.01(2) is invoked. My colleagues and I depart on the question of whether the condition of “public purpose” is satisfied by Section 704.01(2). I am firmly convinced that it is not.

It should be noted at the outset that Section 704.01, Florida Statutes (1975), recognizes two types of ways of necessity. By Section 704.01(1), the common law rule of an implied grant of a way of necessity is “recognized, specifically adopted, and clarified.” As pointed out in Stein v. Darby, 126 So.2d 313 (Fla. 1st DCA 1961), such a way of necessity is historically grounded in real property law concepts. No taking of the land of another is involved because an implied grant of the right-of-way is presumed from the conveyance by the common grant- or. It is a right inuring in the estate of the grantee which arises at the time of the conveyance by the common grantor. Principles of eminent domain are not applicable.

However, it is clear from the very title of Section 704.01(2), Florida Statutes (1975), that the statutorily created way of necessity is exclusive of the common law right with no necessity to establish the elements essential to application of the common law rule. It is a delegation by the legislature to private individuals of the sovereign power of the state to exercise eminent domain over the lands of other private individuals. Of course, delegation of the power of eminent domain by the legislature in not unique. Counties and municipalities enjoy such a grant (§ 127.01, Fla.Stat. (1975)) as do quasi-public corporations such as railroad, electric power, gas, and telephone and telegraph companies. See Chapters 360, 361, 362, Florida Statutes (1975). More recently districts and authorities which engage in drainage, flood control, water management, public housing and urban renewal activities, have been properly delegated the power of eminent domain where it is apparent that such activities serve a public as opposed to a private purpose. See Chapters 361, 373, Sections 163.375, 180.22, 298.62, 421.08(3), Florida Statutes (1975). Nonetheless, the test always has been whether or not the purpose of such taking is public or at least primarily public. The public purpose must not be merely incidental, and “public benefit” is not synonymous with “public purpose.” Grubstein v. Urban Renewal Agency of City of Tampa, 115 So.2d 745 (Fla.1959); Adams v. Housing Authority of City of Daytona Beach, 60 So.2d 663 (Fla.1952). On the other hand, incidental private benefit will not be fatal to a proposal if the ultimate, basic objective is a public use. State v. Board of Control, 66 So.2d 209 (Fla.1953).

Grubstein, supra, was heavily relied upon by the District Court of Appeal in Stein v. Darby, supra. Grubstein held valid a special act of the legislature providing for the rehabilitation, clearance, and redevelopment of slums and blighted areas in the City of Tampa in accordance with urban renewal plans. The act authorized exercise of the power of eminent domain by the City to accomplish its purposes and permitted lease or sale of property so acquired to private interests in furtherance of the plan of redevelopment. In holding the act constitutional against an assertion that it violated the predecessor to Article X, Section 6(a), Constitution of Florida, the Court opined that, as under the Housing Authority Law, “slum clearance is the dominant or primary purpose of the enactment, and redevelopment of the cleared property [through sale or lease to private interests] is the subordinate purpose, linked to the primary purpose by the necessity of preventing the recurrence of the slum condition and of putting the property to some use.” 115 So.2d 745 at 750. That clearance of slum areas was the dominant purpose of the act was borne out by quoted findings of the trial court:

. that this slum area is a breeding place of disease and crime, and constitutes a menace to the health, safety, morals and general welfare of the City of Tampa and requires a disproportionate expenditure of public funds to preserve the public health and prevent crime, fire, accidents, and to supply public services to the residents of the area; that the tax income to the City, County and State is low and out of proportion to the amounts of public funds required to be expended in servicing the area; that nationally, where slums have been eradicated and the area redeveloped for the best purposes, the tax income accruing has been approximately seven times greater than when the area was a slum;
4. That the police power of the City of Tampa is inadequate to accomplish the removal or elimination of the slum conditions found, and that the area is so far deteriorated as a slum or blighted section that mere conservation methods would not accomplish the elimination of slum conditions; and that the complete replat-ting and redevelopment of the land on an area-wide basis is the only feasible method of slum elimination in these circumstances;
6. That the proposed Maryland Avenue Slum Clearance and Urban Renewal Project will, if allowed to be carried through to its completion, fit into the City of Tampa’s general plans of development, improve traffic and safety conditions in the area, eliminate the blighted area in question with its disease, crime, fire hazard, and other problems growing out of slum conditions, tie into the proposed system of limited access freeways through the City, reduce a disproportionate drain on the City’s financial structure, provide an improved living and working environment within the City of Tampa, and will materially benefit, protect, and conserve the health, safety, morals and general welfare of all the citizens of the City. .
Id. at 747.

In the instant case there is no showing of any dominant public purpose to be served through the operation of Section 704.01(2), Florida Statutes (1975). Its dominant or main purpose is to serve the interests of a landlocked private landowner. Any ancillary benefit to the public through development of undeveloped land in this State is just that — a “public benefit” and not a “public purpose”. The assertion in the statute that it is “[bjased on public policy, convenience, and necessity” is not the equivalent of “public purpose” which is the sine qua non of Article X, Section 6(a) of our Constitution.

Furthermore, I am unwilling to discard South Dade Farms v. B. & L. Farms Co., 62 So.2d 350 (Fla.1950), as being without prec-edential value on the subject at hand, as does the majority in footnote 3 to the opinion. The majority categorically concludes without analysis that the absence of a requirement of compensation to the servient owner was the only impediment to the predecessor of Section 704.01(2) found in South Dade Farms. They maintain that this deficiency was cured by the amendment adding Section 704.04, Florida Statutes (1975). Review of a portion of the Court’s opinion in South Dade Farms is instructive on this point:

Of course, in this instance the taking would have no semblance even of basis in the police power. It is purely a matter of taking from one private owner for the use of another private owner.
When the state attempted, by the statute, to accomplish what would result were the present order enforced, its act constituted a violation of the provision that no state shall “deprive any person of * * * property, without due process of law * * Also the Florida constitutional provisions found in the Declaration of Rights that a person shall not “be deprived of * * * property without due process of law * * * ” would be violated, not to mention the provision that private property shall not be “taken without just compensation.” (Emphasis added). Id. at 351.

Section 12 of the Declaration of Rights provided in pertinent part:

No person [i] shall ... be deprived of life, liberty, or property without due process of law; [ii] nor shall private property be taken without just compensation.

It is crystal clear to me that this Court determined that the predecessor of Section 704.01(2), Florida Statutes (1975), violated both conditions limiting exercise of the power of eminent domain, i. e., (1) the taking must be for a public purpose, and (2) just compensation must be paid for that which is taken. Section 704.04, Florida Statutes (1975), may be an elixir for the latter, but it is no cure for the former. Consequently, the principles of stare decisis dictate the result in this case absent any reason to recede from South Dade Farms and none has been demonstrated.

At a time in history when attention has been focused, quite properly, on the protection of civil rights, we must not lose sight of the fact that the fundamental document expressing the organic law of this state and the nation accords no less dignity to the protection of property rights. Enunciated as one of the “basic” and “inalienable” rights by our present Constitution is the right “to acquire, possess and protect property.” Article I, Section 2, Florida Constitution. It is an odious concept indeed that the awesome eminent domain power of the sovereign may be utilized by an individual to take for his own private use the private land of his neighbor against the will of the neighbor regardless of the requirement that full compensation shall be paid. It is no consolation to assert that the right-of-way easement is temporary and shall exist only so long as it is reasonably necessary for the purposes stated in the statute. If Section 704.01(2), Florida Statutes, is held not to violate Article X, Section 6(a), then there can be no rational basis to restrict the power of the legislature to delegate the authority to take permanently.

Mindful as I am of the presumption of validity which accompanies a solemn act of the legislature when it comes to this Court under attack, nonetheless I cannot square the operation of Section 704.01(2) with the constitutional guarantees of Article I, Section 2, and Article X, Section 6(a). Accordingly, I would declare the statute unconstitutional, grant the writ of certiorari, and reverse the order of the trial court.

ENGLAND, J., concurs.

      . Burnsed v. Seaboard Coastline RR., 290 So.2d 13 (Fla.1974).

      . The Supreme Court “May review by certiora-ri .. . any interlocutory order passing upon a matter which upon final judgment would be directly appealable to the supreme court. ...” Art. V, § 3(b)(3), Fla.Const.

      . Arguments that the statute works a denial of property without due process of law are without merit. Section 704.04, Florida Statutes, provides for judicial remedy if the servient owner objects to a claim under Section 704.-01(2). The objections to statutory easements of Section 704.01 voiced by this Court in South Dade Farms v. BSL Farms Co., 62 So.2d 350 (Fla.1950), have also been cured by the enactment of Section 704.04, Florida Statutes, since it provides for compensation to the servient owner if the court finds the statutory claim to exist.

      . 126 So.2d 313 (Fla. 1st DCA 1961).

      . Witness Article II, Section 11, Florida Constitution, and the many enactments of environmental legislation by the Florida Legislature.

      . Ch. 57-1904, Laws of Fla., Special Acts of 1957.


source: Caselaw Access Project

author: ENGLAND, Justice,

license: Public Domain

text:
    CITY OF WEST PALM BEACH, etc., et al., Petitioners, v. Jack W. GORDON, Sr., etc., et al., Respondents.
    No. 48472.
    Supreme Court of Florida.
    May 12, 1977.
    Rehearing Denied July 12, 1977.
    Marjorie D. Gadarian, Jones, Paine & Foster, West Palm Beach, for petitioners.
    Richard W. Slawson, Thompson, Tucker & Slawson, West Palm Beach, for respondents.
    Earl B. Hooten, II, Jacksonville Beach, Marion R. Shepard, Jacksonville, Deborah Bovarnick, Miami Beach, for interested parties.
   The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

OVERTON, C. J„ and ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., concurs specially with opinion.

ENGLAND, Justice,

concurring specially.

In this proceeding and the companion cases of Nobles v. City of Jacksonville and Clifton v. City of Fort Pierce, we are invited to abolish the immunity of municipalities for all non-judicial and non-legislative pre-1975 torts. I would accept the invitation for the reasons well-expressed in Davies v. City of Bath, 364 A.2d 1269, 1272, n. 8 (Me.1976); Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877, 878-79 (1973); and Fuller & Casner, Municipal Tort Liability in Operation, 54 Harv.L. Rev. 437, 441-43 (1941).

      . Case No. 48,100, 349 So.2d 160, denying certiorari to review a decision of the First District Court of Appeal reported at 316 So.2d 565.

      . Case No. 48,379, 349 So.2d 161, denying certiorari to review a decision of the Fourth District Court of Appeal reported at 319 So.2d 195.

      . In Section 768.28, Florida Statutes (1975), the Florida Legislature abolished state and municipal immunity for tort liability to the extent of specifically stated limits and subject to certain express conditions, effective January 1, 1975. § 768.30, Fla.Stat. (1975).


text:
    Miriam Dee NOBLES, Petitioner, v. CITY OF JACKSONVILLE, etc., Respondent.
    No. 48100.
    Supreme Court of Florida.
    May 12, 1977.
    Rehearing Denied July 12, 1977.
    Earl B. Hooten, II, Perry Penland, Jacksonville, for petitioner.
    Marion R. Shepard, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for respondent.
    Richard W. Slawson, West Palm Beach, Deborah Bovarnick, Miami Beach, Marjorie D. Gadarian, West Palm Beach, for interested parties.
   The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., dissents with opinion.

ENGLAND, Justice,

dissents for the reasons expressed in City of West Palm Beach v. Gordon, 349 So.2d 160, opinion filed today.


text:
    Henry V. CLIFTON et ux., Petitioners, v. CITY OF FORT PIERCE, Florida, etc., et al., Respondents.
    No. 48379.
    Supreme Court of Florida.
    March 1, 1976.
    Rehearing Denied May 12, 1977.
    Richard W. Groner, Moyle, Gentry, Jones, Flanigan & Groner, West Palm Beach, for petitioners.
    Edna L. Caruso, Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for respondents.
   This cause having heretofore been submitted to the Court on Petition for Writ of Certiorari, jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under Florida Appellate Rule 4.5c(6), and it appearing to the Court that it is without jurisdiction, it is ordered that the Petition for Writ of Certiorari be and the same is hereby denied.

ROBERTS, Acting C. J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, J., dissents.

On consideration of the petition for rehearing filed by the attorney for petitioners,

IT IS ORDERED by the Court that said petition be and the same is hereby denied.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

ENGLAND, J., dissents with opinion.

ENGLAND, Justice,

dissents for the reasons expressed in City of West Palm Beach v. Gordon, 349 So.2d 160, opinion filed today.


author: BOYD, Justice.

text:
    STATE of Florida, Petitioner, v. John Willie PERKINS, Respondent.
    No. 49609.
    Supreme Court of Florida.
    May 26, 1977.
    Rehearing Denied Sept. 6, 1977.

      Robert L. Shevin, Atty. Gen., and Paul H. Zacks and Charles W. Musgrove, Asst. At-tys. Gen., for petitioner.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, for respondent.
   BOYD, Justice.

Petitioner Perkins was tried and convicted- for the attempted rape of a six-year-old girl. The victim and her brother testified the crime was attempted while the victim was in her bedroom late at night. In addition to this testimony, the testimony of Jacqueline McKree was introduced by the state. McKree testified that, when she was fourteen years old, Perkins had entered her room late at night and grabbed her. Perkins had been charged with a crime stemming from the alleged incident and was acquitted.

The District Court of Appeal, Fourth District, reversed Perkins’ conviction because of error by the trial court in admitting into evidence McKee’s testimony. The court held that evidence of crimes for which a defendant has been acquitted is always barred from admission into evidence under the guarantee against double jeopardy in the Fifth Amendment to the U.S. Constitution. We granted certiorari because of conflict with Lawson v. State, 304 So.2d 522 (Fla.3d DCA 1974), which held that such evidence is not always so barred.

Both Lawson and this case were decided under Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), where it was held that the doctrine of collateral es-toppel is embodied in the U.S. Constitution’s Fifth Amendment guarantee against double jeopardy. The rule of Ashe, as stated by the U.S. Supreme Court, is that,

“. . . Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rationale jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ ” 397 U.S. at 444, 90 S.Ct. at 1194.

Thus, the Ashe rule forbids the admission in a subsequent trial of evidence of an acquitted collateral crime only when the prior verdict clearly decided in the defendant’s favor the issue for which admission is sought. From Ashe we know the double jeopardy clause of the Fifth Amendment to the U.S. Constitution does not forbid the admission of all evidence of acquitted collateral crimes, but only that evidence which the state is collaterally estopped from introducing. Thus, the District Court in this case misapplied the Ashe rule, while in terms of the Fifth Amendment, Lawson was correctly decided.

Our inquiry into this case does not end with harmonization of the conflict. This Court has never been squarely presented with the issue of whether evidence of crimes for which a defendant has been tried and acquitted may be admitted at a subsequent trial. We undertake to confront the issue now while we have before us the record of a proceeding in which such evidence was admitted.

The preliminary inquiry in the admission of evidence of other crimes is whether such evidence is relevant. Under the rule announced in Williams v. State, 110 So.2d 654 (Fla.1959), evidence of other crimes is admissible in a criminal trial if relevant to prove anything other than the bad character of the defendant or his propensity to commit the crime charged. However, Williams makes no distinction between evidence of acquitted crimes and evidence of collateral crimes for which there has not been an acquittal (including uncharged crimes, crimes for which the charges have been dropped and convicted crimes).

Federal courts generally permit the admission of evidence of collateral crimes resulting in acquittals when relevant. Contrary to the general trend, the Fifth Circuit does not permit admission of such evidence. Blackburn v. Cross, 510 F.2d 1014 (5th Cir. 1975); Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972). Similarly, there is a split over the issue in state jurisdictions. And, too, there is disagreement within our state’s District Courts of Appeal, as shown by the decision in this case when compared with other decisions.

In Wingate the Fifth Circuit made the following observation,

“It is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded he did not commit. Otherwise a person could never remove himself from the blight and suspicious aura which surround an accusation that he is guilty of a specific crime. Wingate was charged with robbing Heilman and Angel and as a result of those charges he endured the perils of trial. He was acquitted of those very charges and that should end the matter.”

We agree with Wingate that it is fundamentally unfair to a defendant to admit evidence of acquitted crimes. To the extent that evidence of the acquitted crime tends to prove that it was indeed committed, the defendant is forced to reestablish a defense against it. Practically, he must do so because of the prejudicial effect the evidence of the acquitted crime will have in the minds of the jury in deciding whether he committed the crime being tried. It is inconsistent with the notions of fair trial for the state to force a defendant to resurrect a prior defense against a crime for which he is not on trial. Therefore, we hold that evidence of crimes for which a defendant has been acquitted is not admissible in a subsequent trial. Nothing we say here forbids admission under the “Williams Rule” of relevant evidence of collateral crimes for which acquittals have not been obtained.

Accordingly, that portion of the District Court’s decision inconsistent with this opinion is quashed, reversal of Perkins’ conviction is affirmed and the cause is remanded for proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and SUNDBERG, HATCHETT and DREW (Retired), JJ., concur.

      . Perkins v. State, 332 So.2d 649 (Fla. 4th DCA 1976).

      . We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

      . See Engdall v. State, 319 So.2d 144 (Fla. 4th DCA 1975), Mager, J., dissenting.

      . United States v. Burkhart, 458 F.2d 201, 208 (10th Cir. 1972); United States v. Woods, 484 F.2d 127 (4th Cir. 1973); Hernandez v. United States, 370 F.2d 171 (9th Cir. 1966).

      . See 86 A.L.R.2d 1136 (1962), and cases collected under § 3. Contra: State v. Little, 87 Ariz. 295, 350 P.2d 756 (1960); McDowell v. State, 142 Tex.Cr.R. 530, 155 S.W.2d 377 (1941).

      . Lane v. State, 324 So.2d 124 (Fla.2d DCA 1975). Davis v. State, 277 So.2d 311 (Fla. 4th DCA 1973).


author: SUNDBERG, Justice.

text:
    Talbot D’ALEMBERTE, Chairman, W. George Allen, LeRoy Collins, E. Harris Drew, John A. Grant, Jr., Lois Harrison, Charlotte F. Hubbard, James L. Pleitz and John D. Rawls, members of and constituting the State of Florida Commission on Ethics, Appellants, v. William (Dale) ANDERSON, Appellee.
    No. 49851.
    Supreme Court of Florida.
    May 26, 1977.
    Rehearing Denied Sept. 7, 1977.

      Robert L. Shevin, Atty. Gen., and William C. Sherrill, Jr. and Thomas A. Beenck, Asst. Attys. Gen., for appellants.
    Walter M. Meginniss and William F. Crary of Crary, Buchanan & Meginniss, Stuart, for appellee.
   SUNDBERG, Justice.

Appellant has prosecuted an appeal in this Court following a decision of the District Court of Appeal, First District, declaring Section 112.313(1), Florida Statutes (1973), unconstitutional. Jurisdiction is predicated on Article V, Section 3(b)(1), Florida Constitution.

In May of 1974, M & W Land, Inc., a foreign corporation, (M & W) filed a petition to annex certain lands it owned into the city of Stuart, Florida. M & W was involved in a joint venture with Rossmoor Corporation. Rossmoor was to develop the land. The annexation was controversial for several reasons. For one thing, the annexation was to result in a 20 percent increase in the size of the city of Stuart. For another, some members of the community considered the annexation an attempt by M & W to avoid planned unit development zoning regulations which had recently been enacted for Martin County, Florida, in which Stuart is situate.

In August, 1974, Rossmoor invited the City Commission and other city employees of Stuart to visit Laguna Hills, a residential community developed by Rossmoor in California. The invitation included eighteen spouses and guests of the public officials and employees. Rossmoor wanted the Commission to see an example of the planned community concept proposed for the land which was to be annexed. Commissioner Anderson (the appellee herein) and his wife agreed to make this trip on the weekend of' August 23-25, 1974.

Before leaving for California, the City Commission asked the Stuart City Attorney whether, in his opinion, making the “fact finding” trip would violate the Sunshine Law. The City Attorney informed the Commission that he thought no violation was present. Appellee expressly declared that he did not intend to be swayed by Rossmoor’s generosity. Nevertheless, newspaper articles printed before the trip was made demonstrated public concern over possible compromise of the Commission’s neutrality by acceptance of the invitation.

Appellee and his wife made the trip to California. Rossmoor paid for their air fare to and from California, hotel accommodations, limousine service, evening meals, and one midday meal. The value of the trip accepted by appellee and his wife was $1,223.82. The total cost to Rossmoor for all who made the trip was $25,691.60.

After the Stuart City Commission passed two ordinances which annexed the land to be developed by Rossmoor, a complaint against appellee was filed with the appellant Commission on Ethics. A member of the Commission was appointed as hearing examiner, and a fact-finding hearing was held on November 21, 1974. Subsequent to the hearing, the examiner filed his report with the Commission. On December 13, 1974, the full Commission found that appel-lee violated Section 112.313(1), Florida Statutes (Supp.1974), by accepting the trip. This statute provides:

ACCEPTANCE OF GIFTS PROHIBITED. — No officer or employee of a state agency, or of a county, city, or other political subdivision of the state, or any legislator, or legislative employee shall accept any gift, favor, or service, of value to the recipient, that would cause a reasonably prudent person to be influenced in the discharge of official duties.

By a 4 to 3 decision, the Commission voted to transmit the finding of violation to the Governor and to the State Attorney for the Twelfth Judicial Circuit with the recommendation that no further action be taken.

Appellee petitioned the First District Court of Appeal for certiorari review of the Ethics Commission’s decision. Certiorari was granted. On June 30, 1976, the court issued an opinion declaring Section 112.-313(1), Florida Statutes (1973) as amended by Ch. 74-177, § 3, Laws of Florida, unconstitutionally vague and quashing the decision of appellant Commission. Specifically, the District Court’s opinion holding the former section unconstitutionally vague was directed at the phrase “that would cause a reasonably prudent person to be influenced in the discharge of official duties.”

It should be noted that Section 112.313(1), Florida Statutes (Supp.1974), was amended by Ch. 75-208, § 4, Laws of Florida, and now appears in relevant part as Section 112.313(2)(a), Florida Statutes (1975). The portion of the statute found unconstitutional remains unchanged by the amendment.

Governmental conflicts of interest compose “an evil which endangers the very fabric of a democratic society.” United States v. Mississippi Valley Generating Co., 364 U.S. 520, 562, 81 S.Ct. 294, 315, 5 L.Ed.2d 268 (1961). That fabric remains interwoven by citizens’ confidence in the competence and integrity of their representatives. In order to assure that integrity and concomitant public confidence, situations which create potential conflicts of inr terest, as well as actual misconduct, must be avoided. See Section 112.311, Florida Statutes (1975). It was in pursuit of this laudable objective that the Legislature enacted the statute in controversy. Nonetheless, because we find the statute to be fatally ambiguous, we concur in the decision of the District Court of Appeal, First District.

An assault on the constitutionality of a statute vel non must necessarily succeed if the language does not convey sufficiently definite warnings of the proscribed conduct when measured by common understanding and practice. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Newman v. Carson, 280 So.2d 426 (Fla.1973); Zachary v. State, 269 So.2d 669 (Fla.1972); Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972); Smith v. State, 237 So.2d 139 (Fla.1970); Hunter v. Allen, 422 F.2d 1158 (5th Cir. 1970). Due process of law will not tolerate a statute which “forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning.” Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927); State v. Llopis, 257 So.2d 17 (Fla.1971); Brock v. Hardie, 114 Fla. 670,154 So. 690 (Fla.1934).

Though easily enunciated, the vagueness test is often difficult to apply. The test is not an inflexible one. As Justice Frankfurter commented:

“There is no such thing as ‘indefiniteness’ in the abstract, by which the sufficiency of the requirement expressed by the term may be ascertained. The requirement is fair notice that conduct may entail punishment. But whether notice is or is not ‘fair’ depends upon the subject matter to which it relates. That which may appear to be too vague and even meaningless as to one subject matter may be as definite as another subject matter of legislation permits . .” Winters v. New York, 333 U.S. 507, 524, 68 S.Ct. 665, 674, 92 L.Ed. 840 (1948).

What constitutes unconstitutional vagueness is itself vague. Thus, this Court has found the same or highly similar statutory language unconstitutionally vague when used in one particular statute, but sufficiently unambiguous when used in a different legislative act. In Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976), this Court upheld the constitutionality of Section 501.204, Florida Statutes (1975) (the Little FTC Act), which proscribed “unfair methods of competition and unfair or de-eeptive acts or practices in the conduct of any trade or commerce.” We held that the potentially ambiguous language had acquired a sufficiently well-established meaning in trade usage, the common law, and federal trade law to meet the constitutional challenge of vagueness. To those members whose conduct was regulated by the Act, i. e., individuals who trade in the marketplace, the terms were imbued with particular meaning developed from usage in the trade. In addition, the statute itself expressly provided:

It is the intent of the legislature that in construing subsection (1) of this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.

The federal courts had amassed an abundance of law construing the words under attack. That law provided this Court with additional guidance to meet a constitutional challenge of vagueness. Conversely, in Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968), this Court held in part that Sections 573.17(3)(b) and (c), Florida Statutes (1967), which statutory sections employed language similar to that challenged in Rogers, supra, were invalid as an unconstitutional delegation of legislative power. The question arose in a suit filed by the appellant, as Commissioner of Agriculture of the State of Florida, to collect an assessment made against the appellee under the authority of Section 573.21(1), Florida Statutes, to pay the cost of administering a Sweet Corn Marketing Order promulgated by the Commissioner pursuant to Section 573.17(3). Appellee defended on the basis that Section 573.17(3), Florida Statutes, was unconstitutional on various grounds, one of which was that the act constituted an unlawful delegation of legislative power. In holding that the authorization of programs “for the prevention, modification or removal of trade barriers which obstruct the free flow of celery or sweet corn to market” [§ 573.17(3)(b), Fla.Stat.] was unconstitutional, we stated:

We are not directed to any decisions upholding such a delegation of authority; nor is it suggested what standards, either by common usage or by reference to the purposes of the Act, can be implied in limiting the Commissioner’s authority in this respect. (Emphasis added)

In addition, the authorization to prohibit “unfair trade practices” [§ 573.17(3)(c), Fla. Stat.] was subject to the same infirmity. Relying on Robbins v. Webb’s Cut Rate Drug Co., 153 Fla. 822, 16 So.2d 121 (1944), a case considering whether a similar authorization respecting “unfair or unreasonable economic practices among barbers” was an unconstitutional delegation of legislative authority, the Joe Hatton Court quoted the following language from Robbins:

[These terms or phrases] have no set meaning in law or in common usage. To vest in a Commission the unbridled discretion to define such terms without any rule or standard whatever to guide them is a clear delegation to enact the law or define what it shall be; in other words, a delegation of straight legislative power which will not be permitted. Id. at 122.

Whether a particular statute is valid and falls closer to that end of the spectrum illustrated by the rationale of Rogers or is invalid and falls closer to that end exemplified by Joe Hatton is contingent on how well-defined the controversial language has become through common law, trade usage, or perhaps federal law (if the intent of the Legislature is to bestow precision to the statute through reference to federal law).

The case sub judice falls closer to the Joe Hatton end of the spectrum. Unlike Rogers, we find no meaningful precedent exuding from federal law which interprets the ambiguous language, nor does the statute expressly request that we attempt to do so. Additionally, the indefinite language in the statute does not employ technical words which have acquired a pellucid connotation to those specific individuals governed by the statute. Here, the reasonably prudent man test is utilized. The inherent vagueness in the statutory language cannot be sanitized by resort to signification acquired through custom in the trade as in Rogers.

While the “reasonably prudent person” language is not enriched with interpretive meaning, it has acquired a well settled common law import. Appellants suggest that decades of judicial construction should sustain the language against a charge of vagueness. We disagree. While the reasonably prudent man doctrine has been applied successfully by the courts, historically it has been employed to measure conduct. In the case sub judice, we are not measuring conduct. We are gauging a person’s mental processes. However, the inquiry is not whether the official would be influenced in the discharge of his official duties, but whether a reasonably prudent official under like circumstances would be influenced. Conceptually, the reasonably prudent man test is an inapposite tool to determine whether a particular official would be influenced in the discharge of his duties by a gift. The statutory language denies ap-pellee due process because the objective standard enunciated in the act is inapplica-bly related to the subjective mental process which the statute seeks to measure.

Appellants remind us that the statute in issue is non-criminal. Even though a less stringent examination as to vagueness is utilized in scrutinizing non-criminal statutes, a statute of this nature must nevertheless satisfy minimal constitutional standards for definiteness. Further, there are sanctions in the current Section 112.317, Florida Statutes (1975), which provide for such inexorable penalties as impeachment, suspension, removal from office, or a $5,000 civil fine. To the non-complying official, the penalties, though non-criminal, are nonetheless significant and substantial.

Appellants further suggest that any alleged vagueness in the statute is cured by Section 112.322(2)(a), Florida Statutes (1975). That provision gives the insecure official an opportunity to obtain an advisory opinion from the Ethics Commission. Our response is that this provision results in an unlawful delegation of legislative authority to the Commission. See Article II, Section I, Florida Constitution. The rule for the guidance of courts in determining the question of unlawful delegation of legislative power was stated in State v. Atlantic Coast Line Railway, 56 Fla. 617, 47 So. 969 (1908):

“The Legislature may not delegate the power to enact a law or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law, complete in itself, designed to accomplish a general public purpose, and may expressly authorize designated officials within definite valid limitations to provide rules and regulations for the complete operation and enforcement of the law within its expressed general purpose.” Id. at 976.

More recently, the law was stated in Conner v. Joe Hatton, Inc., supra, that:

When the statute is couched in vague and uncertain terms or is so broad in scope that no one can say with certainty, from the terms of the law itself, what would be deemed an infringement of the law, it must be held unconstitutional as attempting to grant to the administrative body the power to say what the law shall be. See [Sarasota County v. Barg, 302 So.2d 737 (Fla.1974),] State ex rel. Davis v. Fowler, 1927, 94 Fla. 752, 114 So. 435, 437; and Lewis v. Florida State Board of Health, Fla.App.1962, 143 So.2d 867, 875. As stated in 1 Fla.Jur., Administrative Law, at page 243 . . .. Id. at 211.

Under principles enunciated in Atlantic Coast Line Railway and Joe Hatton, supra, utilization of Section 112.322(2)(a), Florida Statutes (1975), to remedy statutory vagueness is unlawful. That provision palpably states that the advisory opinions are not restricted to the particular fact situation presented, but can be requested to establish standards of permissible conduct. In essence, the determination of what is lawful or prohibited conduct is delegated to the Ethics Commission. It is not proscribed by the Legislature nor is it delegated to the Ethics Commission accompanied by meaningful standards and guidelines for the Commission to follow.

As the Legislature cannot shift its constitutional duties to someone else, neither can we. Consequently, we must exercise our duty and find Section 112.313(2)(a), Florida Statutes (1975), unconstitutional for the reasons stated herein. At the same time, we are not critical of the Legislature in its attempt to establish and implement standards to govern the ethical conduct of public officials in accepting gifts and favors which might affect performance of their official duties. Indeed, the people of this state have recognized the need for such ethical standards and have mandated the Legislature to act in this area by adopting the language of Article III, Section 18 of our Constitution.

The decision and judgment of the District Court of Appeal, First District, is affirmed.

OVERTON, C. J., and BOYD, ENGLAND, HATCHETT and KARL, JJ., concur.

ADKINS, J., concurs in result only.

      . § 501.204, Fla.Stat. (1975), states:
      (1) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
      (2) It is the intent of the legislature that in construing subsection (1) of this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.

      . § 573.17(3)(b), Fla.Stat. (1967), stated:
      Provisions for the establishment of plans and programs for advertising and sales promotion to maintain present markets or to create new or larger markets for celery or sweet corn grown in Florida, or for the prevention, modification or removal of trade barriers which obstruct the free flow of celery or sweet corn to market. The commissioner is hereby authorized to prepare, issue, administer and enforce plans and programs for promoting the sale of celery or sweet corn. Provided that any such plan or program shall be directed toward increasing the sale of celery or sweet com without reference to a particular private brand or trade name.
      § 573.17(3)(c), Fla.Stat. (1967), stated:
      Provisions relating to the prohibition of unfair trade practices. In addition to the unfair trade practices, now prohibited by law, applicable to the distribution or handling of celery or sweet corn within this state, the commissioner is hereby authorized to include in any marketing order issued hereunder provisions designed to correct any trade practice affecting the distributing or handling of celery or sweet corn within this state which the commissioner finds, after a hearing thereupon in which all interested persons are given an opportunity to be heard, is unfair and detrimental to the effectuation of the declared purposes of this act.

      . § 112.322(2)(a), Fla.Stat. (1975), reads as follows:
      Every public officer, candidate for public office, or public employee, when in doubt about the applicability and interpretation of this part to himself in a particular context, may submit in writing the facts of the situation to the Commission on Ethics with a request for an advisory opinion to establish the standard of public duty. Any public officer or employee who has the power to hire or terminate employees may likewise seek an advisory opinion from the commission as to the application of the provisions of this part to any such employee or applicant for employment. An advisory opinion shall be rendered by the commission, and all of said opinions shall be numbered, dated, and published without naming the person making the request, unless such person consents to the use of his name.

      . “The best security for the fidelity of mankind is to make their interest coincide with their duty.” The Federalist No. 23, at 437 (Mentor ed. 1961) (Alexander Hamilton).

      . We commend to the consideration of the Legislature the code of ethics adopted by the Pennsylvania legislature. Specifically see Pa.Stat. Ann. Title 46, § 143.5(b) (1969). By prohibiting receipt of gifts or compensation which is either intended or which would influence the member’s public performance, that general assembly avoided some of the vagueness which plagues statutes containing only the “which would” language, while making the section broader in scope than those statutes which only contain the intent element. That statute also adopts a subjective test of knowledge.
      The language of Canon 5c of the Code of Judicial Conduct may also provide some guidance. While the proscribed conduct is similar to that under § 112.313(2)(a), Fla.Stat. (1975), the Canon is far more specific in defining that conduct.


text:
    MILAR GALLERIES, INC., a Florida Corporation, Bertha Weisberg, Julius Weisberg, Frank J. Denaro, Harriette C. Denaro, Petitioners, v. Sonia MILLER, Respondent.
    No. 49903.
    Supreme Court of Florida.
    June 2, 1977.
    Rehearing Denied Sept. 21, 1977.
    Nat Gursten, North Miami, for petitioners.
    Michael A. Reichman, of Franklin D. Kreutzer, Miami, for respondent.
   SUNDBERG, Justice.

This cause is a petition for writ of certio-rari to review an unreported order of the District Court of Appeal, Third District, Case No. 76-280 (Fla.3d DCA June 10,1976) (order granting motion to dismiss), which is alleged to be in conflict with Webster v. State, 235 So.2d 499 (Fla.1970), Lowe v. State, 184 So.2d 164 (Fla.1966), and Burlingham v. Allen, 295 So.2d 684 (Fla.1st DCA 1974), upon the issue of the sufficiency of the content of a notice of appeal. Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioners filed suit against respondent in circuit court seeking damages allegedly caused by respondent’s fraudulent representations. Subsequently, respondent retaliated by filing suit against petitioners, seeking to foreclose a mortgage on certain personal property owned by and in possession of petitioners. Upon motion by respondent, the circuit court consolidated the two causes for trial, since each arose from the same set of facts and involved basically identical questions of law. At the culmination of the proceeding, the trial court rendered a final decree of foreclosure and a final judgment and directed verdict in favor of respondent and against Milar Galleries, Inc., et al. Petitioners timely filed a single notice of appeal seeking review of the two final judgments. The style of the notice of appeal properly specified case designations of the consolidated proceedings in the circuit court. However, the notice of appeal stated that: “Milar Galleries, Inc., plaintiffs in Case No. 75-5442 in the above styled cause, takes and enters its Appeal to the Third District Court of Appeal of Florida to review the Order, Judgment and Decree of the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida.” Only the corporate appellant was specifically named in the notice of appeal. The term “et al.” was included in the style but was omitted in the body of the notice. Respondent sought a dismissal of the appeal on the grounds that: (1) appellant only filed a single notice of appeal from two separate and distinct judgments, thereby resulting in prejudice to respondent as it became difficult to file a proper motion to quash the appeal, and (2) the notice of appeal was vague since the style of the notice of appeal included all the plaintiffs below, whereas the notice itself included only the corporate plaintiff. Respondent’s motion to dismiss the appeal was filed subsequent to the entry of petitioners’ assignments of error and brief which referred to the individual plaintiffs below as well as the corporation plaintiff. The District Court of Appeal, Third District, citing Borland v. South Patrick Utility Corporation, 122 So.2d 44 (Fla.2d DCA 1960), entered an order dismissing the appeal as to the second enumerated judgment and striking from the appeal all parties except the named corporate plaintiff. It is from this order that petitioners have requested this Court to exercise its discretionary review.

The purpose of a notice of appeal is to disclose to an adverse party and the reviewing court that an appeal from an appealable order, judgment or decree of the trial court is intended. Seaboard Air Line R. R. v. Holt, 80 So.2d 354 (Fla.1955). As long as parties have received that notice and have not been prejudiced by any deficiencies or ambiguities in the notice of appeal, the dismissal of such an appeal is inconsistent with the concept of appellate review and with proper administration of justice. See Robbins v. Cipes, 181 So.2d 521 (Fla.1966).

These sentiments were codified in Fla. App. Rule 3.2c. which states in part:

Deficiencies in form or substance in the notice of appeal shall not be jurisdictional and shall not be ground for dismissal of the appeal unless it be clearly shown that the complaining party was misled or prejudiced by such deficiencies.

In accordance with the intent of this rule, we are unable to sustain the order of the District Court of Appeal, Third District.

Where two cases are consolidated for trial, and there are common issues of law and fact, as in the instant cause, a single notice of appeal describing separate judgments is sufficient unless the deficiency causes prejudice to the adversary. See Webster v. State, supra; Lowe v. State, supra. Here, respondent herself moved for consolidation on the ground that both causes involved identical questions of law. Further, we are unable to accept respondent’s contention that she was prejudiced by the deficiency in the notice. The notice of appeal states that petitioners seek to have reviewed “the Order, Judgment and Decree of the Circuit Court . . . Both the decree and the judgment are identified by full title, date of issuance, date of recording, and book and page number of recording.

Respondent finds solace in the holding of Borland v. South Patrick Utility Corporation, supra, which stated that “where two causes are consolidated for convenience at trial, one notice of appeal is insufficient to review two judgments.” Id. at 45. Such solace is deluding. Borland was decided before the amendment to Rule 3.2c. As we stated in In Re Florida Appellate Rules, 211 So.2d 198, 201 (Fla.1968):

Decisions, orders, judgments or decrees in civil actions and judgments or sentences in criminal actions rendered or entered after September 30, 1968 shall be governed by these rules which shall supersede all conflicting rules and statutes.

Thus, the instant cause is not controlled by Borland, which was decided in 1960.

Respondent alleges additionally that a notice of appeal naming only one party as appellant cannot give the court jurisdiction to hear the appeal on behalf of other parties. To hold otherwise would place an undue hardship on respondent, forcing her to speculate on the identities of the appealing parties. We gainsay this argument, for Fla.App. Rule 3.2c. does not contemplate that an inadvertent pretermission of the term “et al.” in the body of the notice be considered a jurisdictional defect. The notice of appeal is sufficient if it identifies the appealing parties so that counsel and the court will not be misguided. State ex rel. Poe v. Allen, 196 So.2d 745 (Fla. 1967); Robbins v. Cipes, supra. In Robbins, this Court enunciated the procedure for determining if the defect mandates dismissal:

. in testing the sufficiency of the notice, the record itself should be examined. Where the examination of the notice of the appeal and other appellate documents such as assignments of error, briefs and other pertinent papers show that the parties have not been misled or prejudiced by any deficiencies or ambiguities in the notice itself, the dismissal of such an appeal would not only be contrary to prior precedents of this Court but inconsistent with the concept of our appellate procedures and the true administration of justice. Id. at 522.

In the instant case, the language of the notice of appeal should be read to include all the plaintiffs. The body of that appellate document referred to “Plaintiffs in Case No. 75-5442 . ..” Further, the assignments of error and brief of appellants properly identified all petitioners as appellants in the district court. Because a reading of the notice of appeal together with the assignments of error and brief would dictate the conclusion that all the parties to the initial action were prosecuting an appeal, we are unable to find how respondent was prejudiced, and she has been unable to demonstrate such unfairness. See Brown v. Winn-Dixie Stores, Inc., 267 So.2d 78 (Fla. 1972).

Accordingly, the writ of certiorari is granted, the order of the District Court of Appeal, Third District, is quashed, and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and ENGLAND, JJ., concur.


author: PER CURIAM.

text:
    T. C. (Ted) WARD, Appellant, v. Charles L. GIBSON, Appellee.
    No. 76-91.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Rehearing Denied July 9, 1976.
    Hal H. McCaghren, West Palm Beach, for appellant.
    Shutts & Bowen and Xavier Suarez, Miami, for appellee.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an interlocutory appeal by the defendant, T. C. (Ted) Ward, from an order denying his motion to dismiss for insufficient process and insufficient service of process.

Charles L. Gibson, plaintiff, filed a verified complaint against Ward seeking compensatory and punitive damages allegedly owed pursuant to an oral contract. The summons directed that it be served together with a copy of the complaint, on T. C. (Ted) Ward at an address and apartment number in Fort Lauderdale, Florida, or on Allyn Gibson at the same address. When the Sheriff of Broward County was unable to serve Ward, a special process server was appointed by the court. The process server served one Allyn Gibson, Ward’s roommate, at Allyn Gibson’s leased parking space in the garage of the large hi-rise condominium apartment complex where Allyn Gibson and Ward reside. Ward filed a motion to dismiss on the ground of lack of jurisdiction because of insufficient process and service of process. The motion was denied.

Ward’s point on appeal is that service upon one other than the defendant at a place other than the defendant’s usual place of abode is not valid service on the defendant. Section 48.031, Fla.Stat., provides that,

“Service or original process is made by delivering a copy of it to the person to be served with a copy of the complaint . or by leaving the copies at his usual place of abode with some person of the family who is 15 years of age or older and informing the person of their contents . . . ”

In our opinion, under the facts presented in this case, service was not made at the defendant’s “usual place of abode” as required by § 48.031, supra. Accordingly, the order denying the motion to dismiss is reversed.

Reversed.


author: SMITH, Judge.

text:
    The STATE of Florida, Appellant, v. David A. TOFFOLIO and Russell L. Johnson, Appellees.
    No. EE-200.
    District Court of Appeal of Florida, First District.
    March 9, 1977.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Donald K. Rudser and Charles F. McClamma, Asst. Attys. Gen., Tallahassee, for appellant.
    Giles P. Lewis, Joseph S. Farley and Bartley K. Vickers of Mahon, Farley & Vickers, Jacksonville, for appellees.
   SMITH, Judge.

The State appeals from an interlocutory order granting appellees’ motions to suppress as evidence the marijuana taken from their vehicle in a warrantless search. Acting on suspicion that appellees were dumping garbage illegally, an officer approached their vehicle, which was parked in a vacant lot next to the highway. At the vehicle, the officer smelled marijuana. He searched for it, seized it and arrested appellees for possession of it.

Appellees did not claim to have any interest in the vacant lot creating an expectation of privacy protected by the Fourth Amendment. The officer was privileged to approach the vehicle. Once there, the smell of marijuana emanating from the vehicle justified searching the vehicle and seizing the marijuana. Berry v. State, 316 So.2d 72 (Fla. 1st DCA 1975); State v. Boyle, 326 So.2d 225 (Fla. 2d DCA 1976); Mattson v. State, 328 So.2d 246 (Fla. 1st DCA 1976).

REVERSED.

MILLS, Acting C. J., and ERVIN, J., concur.


text:
    Willie Cornelius WALKER, Appellant, v. STATE of Florida, Appellee.
    No. DD-209.
    District Court of Appeal of Florida, First District.
    March 9, 1977.
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED.

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


text:
    STOCKTON, WHATLEY, DAVIN & COMPANY, a Florida Corporation, and New Hampshire Insurance Company, a New Hampshire Corporation, Appellants, v. Richard N. BROCK and Jeanne D. Brock, his wife, Appellees.
    No. CC-455.
    District Court of Appeal of Florida, First District.
    April 13, 1977.
    E. Harper Field and Michael L. Granger of Keen, O’Kelley & Spitz, Tallahassee, for appellants.
    W. J. Oven, Jr., Tallahassee, for appel-lees.
   PER CURIAM.

It is axiomatic that the findings of a trial judge sitting as a trier of fact without a jury are entitled to the same presumption of correctness as is accorded to a jury verdict. Our examination of the record, consideration of the briefs by able counsel and the hearing of oral argument fails to reveal prejudicial error. Accordingly, the final judgment here appealed is

AFFIRMED.

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


author: BOYER, Chief Judge.

text:
    Linda Ann HOGAN, through her mother and next friend, Hazel Jordan, and Hazel Jordan, Individually, Appellants, v. Gayla KEEN et al., Appellees.
    No. BB-137.
    District Court of Appeal of Florida, First District.
    May 11, 1977.
    Thomas A. Larkin, Jacksonville, for appellants.
    W. Brantley Brannon, Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appellees.
   BOYER, Chief Judge.

From summary judgment entered in favor of appellees (defendants), appellants have appealed, claiming that there are material issues of fact which should have precluded the entry of summary judgment.

Most of the material facts concerning the incident out of which this lawsuit arose are undisputed. On July 1,1973, appellant Linda Ann Hogan while a passenger in an automobile driven by appellee Gayla Keen was involved in an accident and was injured.

The pleadings, however, reveal a significant and apparently determinative issue of fact. The complaint alleges that the automobile being driven by appellee Keen was owned by appellee Sarah Kathrin Wentz. Appellees’ answer denied that appellee Wentz owned the automobile at the time of the accident. In her affidavit, appellee Wentz stated that on October 1, 1972, she had sold her car to her brother Billy who agreed to make payments on her car note. When all of the payments had been made, she agreed to turn the certificate of title over to her brother. While the payments were being paid, she kept the title certificate as security. According to appellate Wentz, from the time of delivery in October of 1972 until the accident in July of 1973, Billy had full possession and control of the automobile.

Appellant asserts that Billy’s deposition raises a material issue as to the ownership of the automobile. Billy, when asked if he had purchased an automobile from his sister, replied, “Not in the sense of just outright buying it from her, no, sir. She allowed me to use an automobile that was owned by her.” Billy acknowledged that the agreement that he reached with his sister guaranteed him ownership of the automobile if he made all of the remaining payments due under the note. It is undisputed that there was no written contract concerning the ownership of the Plymouth. Regarding insurance, although Billy paid the premiums, the policy remained in the name of appellee Wentz, and the insurance company paid her for the value of the car after the accident.

In our view, there is a conflict in the record concerning the issue of ownership of the automobile at the time of the accident which requires reversal. In a similar case, the court discussed the issue of whether a summary judgment was properly entered:

“The prime question presented for decision is whether £he evidence which was before the court when he granted summary judgment reveals without dispute that a bona fide sale of the vehicle in question was made by defendant to Lei-lich at any time prior to the accident. Whether a sale was actually consummated is a question of law to be determined from the facts in evidence. The mere assertion by defendant that he sold the vehicle to Leilich, and Leilich’s assertion that he purchased the vehicle, are mere conclusions of law and of no probative effect.
* * * * * *
“Whether in the case we now review the defendant and Leilich both entertained an intent to transfer beneficial ownership of the vehicle to Leilich prior to the date of the accident must be determined from their overt acts which occurred at the time of agreement to purchase and sell and at all material times thereafter. The mere fact that the evidence concerning the intent of the parties is uncontrovert-ed does not necessarily mean that there is no genuine issue as to this material fact, if the uncontradicted evidence is lawfully susceptible to two or more conflicting inferences. A court which draws its own inference from among the lawful inferences, and enters a summary judgment based thereon, deprives the parties of their right to a trial by a jury contrary to the purpose and intent of the rule governing summary judgments.” Register v. Redding, 126 So.2d 289, 291 (Fla. 1st DCA 1961).

Similarly, in the case sub judice, there is a disputed issue of fact as to whether the sale of the automobile occurred prior to the accident in question. That issue should be resolved by a jury after hearing all of the evidence. Accordingly, the judgment appealed is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

REVERSED.

MILLS, J., and DURDEN, J. ROBERT, Associate Judge, concur.


author: RAWLS, Judge.

text:
    Frederick PAXTON, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation, Respondent.
    No. FF-494.
    District Court of Appeal of Florida, First District.
    May 26, 1977.
    William G. Babcock, Gainesville, for petitioner.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent
   RAWLS, Judge.

By petition for writ of habeas corpus, Paxton seeks a belated appeal from his 1974 convictions of robbery and resisting an officer with violence. Petitioner refers us to this court’s opinion in Paxton v. State, 304 So.2d 485 (Fla. 1st DCA 1974), and alleges that this court affirmed his convictions without reaching the merits of his appeal because no assignments of error were filed therein.

In considering the instant petition, we have re-examined the original file in Paxton v. State, supra, and glean therefrom that on December 28, 1973, a four-count information was filed against Paxton and another co-defendant charging them jointly with: 1) robbery, 2) possession of a firearm during a criminal offense, 3) assault with intent to commit a felony, and 4) resisting an officer with violence. At the outset of the arraignment proceedings, Paxton’s attorney announced that Paxton wished to enter pleas of guilty to robbery and resisting an officer with violence. The trial court, prior to accepting the pleas of guilty, adduced from Paxton that he was 39 years of age; possessed a two-year college education; had never been treated for any mental illness nor to his knowledge had he ever suffered from any mental or emotional disability. The trial court further meticulously instructed Paxton as to the rights he was waiving and that a plea of guilty admitted the truth to the charge, and Paxton acknowledged that he understood the consequences of his plea and admitted that he committed the acts set forth in the charges. The following statement was made by Pax-ton: “As fur as the robbery goes, I just was in the store standin’ up, and the resistin’ arrest, I just drove the car away. I didn’t do nothin’ else.” The trial court advised him that the maximum offense for robbery was life imprisonment and the maximum offense for resisting arrest with violence was five years or five thousand dollars, and then adduced from Paxton that no threats, force or other inducement save the agreement with the state to dismiss Counts II and III (possession of a firearm and assault with intent to commit a felony) had been given. Determining that the pleas of guilty were freely and voluntarily obtained with the advice of competent counsel, the trial court thereupon accepted them.

By the instant petition Paxton asserts that the failure of this court to rule upon the merits of the one assignment of error in his prior appeal (the trial court erred in accepting his pleas of guilty without first determining that there was an underlying factual basis for the pleas as required by Fla.R.Crim.P. 3.170[j]) deprived him of his constitutional right to an appeal. As reflected in the concurring opinion of the author of this opinion, the record was reviewed in the prior appeal. In addition, we now review the record in light of the Supreme Court’s opinion in Williams v. State, 316 So.2d 267 (Fla.1975), and determine therefrom that Paxton has failed to show that a manifest injustice resulted from the trial court’s failure to inquire into great detail as to the factual basis upon which the negotiated pleas of guilty were accepted.

The petition for writ of habeas corpus is denied.

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

      . See also Ross v. State, 325 So.2d 430 (Fla. 4th OCA 1976).


author: MILLS, Judge. BOYER, Chief Judge,

text:
    Gary William LAVIGNE, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. EE-365.
    District Court of Appeal of Florida, First District.
    June 1, 1977.

      Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury convicted Lavigne of robbery with a firearm. He appeals.

The issue which is determinative of this appeal is whether the trial court erred when it allowed the testimony of a police officer concerning an oral statement made to him by Lavigne which was not disclosed by the State in response to Lavigne’s demand for discovery.

As provided by Fla.R.Crim.P. 3.220(a)(1)(iii), Lavigne made written demand upon the State to disclose the substance of any oral statements made by him and known by the State, together with the name and address of each witness to the statement. The State responded, “Statements made to Greg Denton on day in question”. Later the State added to its response “oral admissions made to James Larry Andrews”. Although the State knew that Lavigne made an oral statement to police officer Sciadini, it did not include this information in its responses to the demand for discovery. In response to Lavigne’s notice that he intended to claim an alibi, the State furnished the name of Sciadini as a rebuttal witness. Several days before the trial, the State informed Lavigne that Sciadini would be called as a witness and made him available to Lavigne for interview or deposition. Lavigne neither interviewed him nor took his deposition. At the trial, the State used Officer Sciadini as a rebuttal witness and he was permitted to testify concerning an oral statement made to him by Lavigne. Lavigne objected on the ground that the State failed to comply with his demand for discovery and that the testimony elicited came as a surprise to him. Without making a full inquiry into the circumstances surrounding the State’s failure to comply with Lavigne’s demand for discovery, as required by Richardson v. State, 246 So.2d.771 (Fla.1971), the trial court overruled the objection.

Where the State violates a Rule of Criminal Procedure; the trial court must make a full inquiry into all the circumstances surrounding the breach to determine whether the defendant is prejudiced by the State’s noncompliance. The State has the burden of showing to the trial court that there is no prejudice to the defendant. Failure of the trial court to make a full inquiry requires reversal of a conviction. Richardson v. State, supra; Cumbie v. State, 345 So.2d 1061 (Fla.1977), opinion filed 17 March 1977.

The State did not furnish Lavigne with the substance of the oral statement made by him nor did it inform him that Officer Sciadini was a witness to the statement. This was a violation of Fla.R. Crim.P. 3.220(a)(1)(iii). Nevertheless, the trial court failed to make a full inquiry into all the . circumstances surrounding the breach and failed to determine whether La-vigne was prejudiced.

The State argues that it informed Lavigne that Sciadini would be a witness at the trial, that the State made Sciadini available for interview or deposition, that La-vigne did not move for a continuance, that Lavigne does not claim prejudice and that the trial court’s inquiry was sufficient. None of these arguments has merit. La-vigne had no reason to interview or take Sciadini’s deposition because he had not been informed by the State as required by a rule of criminal procedure that Sciadini was a witness to an oral statement made by him. There is no requirement that Lavigne ask for a continuance because the State violated a rule of criminal procedure. The law does not require that a defendant claim prejudice; the law requires that the State prove there is no prejudice to the defendant. The trial court did not make the inquiry required by Richardson v. State, supra. This was error.

Because we are required to reverse the judgment of conviction and remand for a new trial, it is unnecessary that we discuss the other points raised by Lavigne.

Reversed and remanded for a new trial.

McCORD, J., concurs.

BOYER, C. J., concurs specially.

BOYER, Chief Judge,

concurring specially.

The law succinctly announced by my brother Mills in the foregoing opinion authored by him is to me shocking, but I concede that it appears to be in conformity with the latest pronouncement by the Supreme Court of Florida in Cumbie v. State, 345 So.2d 1061 (Fla.1977), Case No. 49,134 not yet reported. The effect of the opinion is to explicitly declare the harmless error statute (F.S. 924.33) and doctrine (Urga v. State, 155 So.2d 719 (Fla. 2nd DCA 1963) inapplicable, as a matter of law, to situations wherein a trial judge permits evidence from a witness whose name was not revealed by the State to a defendant who has made demand for discovery in accordance with the Rules of Criminal Procedure, without the trial court conducting an inquiry into the question of prejudice, whether or not the defendant, on appeal, claims to have been prejudiced.

It is noted that in the foregoing opinion Judge Mills unequivocally asserts:

“Where the State violates a Rule of Criminal Procedure, the trial court must make a full inquiry into all the circumstances surrounding the breach to determine whether the defendant is prejudiced by the State’s noncompliance. The State has the burden of showing to the trial court that there is no prejudice to the defendant. Failure of the trial court to make a full inquiry requires reversal of a conviction.
* * * * * *
“ * * * The law does not require that a defendant claim prejudice; the law requires that the State prove there is no prejudice to the defendant. * * * ” (Emphasis added)

In the foregoing opinion Judge Mills cites as authority, inter alia, Richardson v. State, 246 So.2d 771 (Fla.1971), as did the Supreme Court in Cumbie v. State, supra. However, in Richardson v. State, the Supreme Court said:

“ * * * we hold that the violation of a rule of procedure prescribed by this Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant. * * * Furthermore, the Rule in question must be considered by an appellate court in pari materia with the provisions of our harmless error statute, viz, F.S. 924.33, F.S.A. which provides that rulings or proceedings in criminal cases that are not prejudicial or harmful do not require reversal. As stated in Howard v. State, Fla.App., 239 So.2d 83, supra:
“ ‘The cited statute is but a codification of the “ harmless error” ’ doctrine which has been developed by judicial decision to avoid reversal in eases where it appears that justice has been served and that in all probability a new trial with the same admissible evidence would not alter the end result.’
“See Urga v. State, 155 So.2d 719, Fla. App.1963, and cases cited therein.
“Therefore, petitioner’s contention that the State’s non-compliance with the Rule entitles him, as a matter of right, to have a non-listed witness excluded from testifying, or to have a mistrial where it becomes evident during the trial that there existed a witness who probably had knowledge of facts relevant to petitioner’s defense, is not tenable. The Rule was designed to furnish a defendant with information which would bona fide assist him in the defense of the charge against him. It was never intended to furnish a defendant with a procedural device to escape justice. * * * (246 So.2d at page 774)

Later, in Williams v. State, 316 So.2d 267 (Fla.1975), the Supreme Court, citing and quoting from Richardson v. State, supra:

“We agree with this Standard. It is in accordance with Richardson v. State, 246 So.2d 771, 774 (Fla.1971), where we said: “ ‘. . . [W]e hold that the violation of a rule of procedure prescribed by this Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant.
“The quoted American Bar Association Standard clearly puts the burden on the defendant to ‘prove’ a ‘manifest injustice’ has occurred. In other words, clear prejudice must be shown. * * * ” (316 So.2d at page 274; emphasis added)

On the same date the same court, in Estes v. State, 316 So.2d 276 (Fla.1975), affirming the result reached by this Court which affirmed appellant’s conviction, said:

“Williams v. State, 316 So.2d 267 (Fla. 1975), is controlling. There has been no showing by the defendant of prejudice or manifest injustice. We agree with the District Court of Appeal that the defendant has failed to demonstrate in this record how he has been prejudiced by the particular guilty plea procedure used in this cause. * * * ” (316 So.2d at p. 277)

Therefore, in Richardson v. State, Williams v. State, and Estes v. State, the Supreme Court cited and applied the “harmless error” statute and doctrine and required a showing of prejudice as a condition to reversal.

However, in Cumbie v. State, supra, the Supreme Court, in a unanimous per curiam opinion, stated and apparently held:

“The trial court erred in admitting into evidence the testimony concerning the alleged statement of the petitioner without conducting an inquiry into the question of prejudice, and this error is reversible as a matter of law. * * * ” (Emphasis added)

Although I personally find it somewhat difficult to reconcile the several cases above cited, it is apparent (at least as of the date of the opinion sub judice) that the Cumbie decision is the latest pronouncement of our Supreme Court and we are mandated to follow it. (Hoffman v. Jones, 280 So.2d 431 (Fla.1973)

I therefore, albeit with trepidations, concur not only with the result reached but also with the reasoning applied by Judge Mills in the foregoing opinion.


text:
    Bruno FAIOLA, Appellant, v. HALIFAX HOSPITAL DISTRICT, d/b/a Halifax Hospital Medical Center, etc., et al., Appellees.
    Nos. DD-279, DD-427.
    District Court of Appeal of Florida, First District.
    June 15, 1977.
    Kevin K. Broderick, of Wendel, McAr-thur, Broderick & Chritton, Lakeland, for appellant.
    Bruce S. Bullock and Robert M. Sharp, of Bullock, Sharp & Childs, Jacksonville, Robert G. Tardif, Miami, Alfred A. Green, Jr. of Green, Strasser & Hammond, Daytona Beach, and Arthur A. Frankl, Springfield, Mass., for appellees.
   PER CURIAM.

REVERSED. Foley v. Morris, 339 So.2d 215 (Fla.1976).

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


text:
    Richard F. MINZEY and Jo Ann Minzey, his wife, Appellants, v. Amy SHAPIRO, Appellee.
    No. 76-372.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Rehearing Denied Sept. 15, 1977.
    Kathleen B. Johnson of Law Offices of Norman F. Solomon, Miami, for appellants.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, and H. Lawrence Asher, Miami, for appellee.
   PER CURIAM.

We find that there is a genuine issue of material fact concerning the affirmative defense of usury raised by the appellants, Richard F. Minzey and Jo Ann Minzey, precluding the entry of summary judgment. Accordingly, the judgment is reversed and the cause is remanded for further proceedings consistent herewith.

ALDERMAN, ANSTEAD and DAUKSCH, JJ., concur.


text:
    Raymond SWIFT, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-1006-76-1010.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Rehearing Denied Sept. 15, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and James K. Green, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971).

DOWNEY, ANSTEAD and DAUKSCH, JJ., concur.


text:
    Philip DASH, Appellant, v. Abel HOLTZ, Appellee. Philip DASH, Appellant, v. BANK OF MIAMI BEACH, Appellee. Philip DASH, Appellant, v. Charles DELMONICO et al., Appellees. Charles DELMONICO et al., Appellants, v. Philip DASH, Appellee.
    Nos. 76-1381, 76-1382, 76-1450, 76-1324.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Rehearing Denied Sept. 13, 1977.

      Shevin, Shapo & Shevin and Ronald A. Shapo, Miami, for Dash.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford and Judy D. Shapiro, Miami, for Holtz.
    Cypen & Nevins and Stephen H. Cypen, Miami Beach, for Bank of Miami Beach.
    Lawrence C. Porter, Miami, for Delmoni-cos.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. Rivers v. Brown, 62 Fla. 258, 56 So. 553 (1911); Forbes v. Fort Lauderdale Mercantile Co., 83 Fla. 66, 90 So. 821 (1922); and see Rothstein v. Forty-Five, Twenty-Five, Inc., 145 So.2d 565 (Fla.3d DCA 1962).


author: NATHAN, Judge.

text:
    B. W. B. CORPORATION et al., Appellants, v. Joseph B. MUSCARE et al., Appellees.
    No. 76-1138.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Rehearing Denied Sept. 13, 1977.
    Robert M. Brake, Coral Gables, for appellants.
    Charles A. Gould, Jr., Miami, for appel-lees.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   NATHAN, Judge.

Appellants, William S. Barkett, Sr., Eloise J. Barkett and B.W.B. Corporation are defendants in a suit by attorneys for services rendered defendants in a quiet title action. Appellants, as defendants therein, had filed a third party complaint against Joseph P. Muscare and Helen F. Muscare alleging that the Muscares had sold and conveyed to them the real property involved in the quiet title suit, at which time the Muscares concealed an unrecorded outstanding contract for sale of the property to a third party. Thus, appellants alleged that it was the Muscares responsibility to pay the attorneys and costs of the quiet title suit. A judgment for attorney’s fees and costs was entered against appellants. This appeal is from a jury verdict and judgment in favor of the Muscares on appellants’ third party complaint.

The essential facts are not in dispute. In September of 1966, the Muscares leased the property to Tropicana Country Club, Inc., for one year, with an option to purchase the property, which option and lease were recorded. In March of 1967, Tropicana exercised the option and the Muscares and Tropicana signed a contract of purchase and sale which was not recorded. The transaction was never closed. Tropicana subsequently vacated the property, with neither party signing a release. In November of 1969, the Muscares conveyed the property to appellants by warranty deed. At the closing, the Muscares signed an affidavit which stated:

“[T]he above-described property is free and clear of all liens, taxes, encumbrances and claims of every kind, nature and description whatsoever, except for mortgages, if any, described in the Deed given between the parties named herein, and except for real estate and personal property taxes for the year 1969.”

Shortly after the purchase, appellants applied for a mortgage loan, at which time the title company advised appellants concerning the cloud on their title. A second affidavit was thereafter executed by the Muscares wherein it was stated that the option to purchase had never been exercised by the country club.

Appellants first contend that since the Muscares executed affidavits stating that the subject property was free and clear of all encumbrances and that Tropicana Country Club could not and would not exercise its option to purchase the property, these statements were a fraud on appellants and therefore appellants were entitled to a judgment as a matter of law. Appellants next contend that since the Muscares breached the covenants contained in the warranty deed, the court should have directed a verdict at the close of all the evidence. We agree with this second argument.

The Muscares gave appellants a warranty deed which is substantially the same as the form for warranty deeds prescribed by Section 689.02, Florida Statutes (1975). Section 689.03, Florida Statutes (1975), provides that a conveyance executed substantially in the form set out in Section 689.02 “shall be held to be a warranty deed with full common law covenants, and shall just as effectually bind the grantor, and his heirs, as if said covenants were specifically set out therein.”

The usual common law covenants included in a warranty deed in Florida are the covenants of seisin, good right to convey, quiet enjoyment against encumbrances and that the grantor will warrant and defend the title. Coral Gables, Inc. v. Payne, 94 F.2d 593 (4th Cir. 1938). The covenant of seisin has been described as “an assurance that the grantor has the very estate in quantity and quality which he purports to convey.” Burton v. Price, 105 Fla. 544, 141 So. 728 (1932).

In the instant controversy, there was an outstanding contract for sale of the property between the Muscares and the Tropicana Country Club. A contract to sell real property has long been held to establish the vendee as the beneficial owner of the property, with the vendor retaining only naked legal title in trust for the vendee as security for the latter’s performance. In re Estate of Sweet, 254 So.2d 562 (Fla.2d DCA 1971). This equitable interest resides in the vendee even though he has not paid the purchase price. Aycock Bros. Lumber Co. v. First National Bank of Dothan, 54 Fla. 604, 45 So. 501 (1907). Thus, since Tropicana had an equitable interest in the Muscare’s property at the time that it was conveyed to appellants, the Muscares did not have the quality of estate which they purported to convey through the warranty deed. The Muscares therefore breached the covenant of seisin. For this reason, we hold that appellants were entitled as a matter of law to recover the costs which they were required to expend in order to quiet title. In light of this holding, it will not be necessary to consider appellants’ other point on appeal.

The order of the trial court is reversed with directions that judgment be entered in favor of appellants on their third party complaint and the cause remanded for a determination of the amount of damages sustained by appellants in prosecuting the quiet title suit.

Reversed and remanded.


text:
    J. A. BELCHER, Sr., J. A. Belcher Jr., Stewart D. Allen and H. E. Snodgrass, Appellants, v. Irwin Edward SCHILLING, Individually, and as Trustee under the Trust of Louis C. Schilling, Louis C. Shilling, Individually, and as Trustee under the Trust of Minnie E. Schilling, and Jerome Schilling, Appellees.
    No. 76-975.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Rehearing Denied Sept. 15, 1977.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble and Mark Hicks, Miami, for appellants.

      Colson & Hicks, Susan Goldman, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal of an adverse final judgment for the defendants entered in accordance with the jury’s verdict in this libel action.

Plaintiffs J. A. Belcher, Sr., J. A. Belcher, Jr. and Stewart Allen (Belcher group) are members of the board of directors of the Belcher Oil Company as were the defendants Irwin Schilling and Louis Schilling (Schilling group) until October, 1973. In 1972 policy disagreements split the board into two opposing factions, the Belcher group (appellants) and the Schilling group (defendant-appellees) which included the then president of the company, Edwin Belcher III. The Belcher group decided to oppose the re-election of Edwin Belcher as president in the October 1973 company election, and in early 1973 began to solicit proxies from shareholders who they believed favored their company policies. As a result, on October 23, 1973 Edwin Belcher and the defendant Schilling group were defeated and a slate headed by the Belcher group was elected. Thereafter, on November 2, 1973 the Schilling group filed suit against the Belcher group and sought to set aside the election for the reason, inter alia, that some of the proxies had been obtained by misrepresentation, fraud and deceit. Subsequently, on November 8 the parties to this suit entered into a stipulation which provided that the status quo of the company would be maintained. In the meantime, the Belcher group had been negotiating with Kenneth Johnson of the Exxon Company to become the new president of Belch-er Oil Company. Upon learning of these negotiations, the attorney for the Schilling group on January 4, 1974 sent Johnson a letter which in essence informed Johnson of the stipulation to maintain the status quo of the company and of the pending lawsuit charging the Belcher group with, inter alia, fraud and deceit in the 1973 company election. As a result, the Belcher group filed the present libel action against the Schilling group grounded upon this January 4 letter to Johnson. The cause was tried before a jury and at the close of all the evidence, the trial judge instructed the jury that although the subject letter was libelous per se, it was qualifiedly privileged as a matter of law; therefore, for plaintiffs (Belcher group) to prevail the jury must find that plaintiffs proved the existence of actual malice. The jury returned a verdict for the defendants (Schilling group) and judgment was entered accordingly. The Belcher group appeals and basically contends that the judge erred in instructing the jury that the letter was qualifiedly privileged. We cannot agree.

A communication made in good faith on any subject matter by one having an interest therein or in reference to which he has a duty is privileged if made to a person having a corresponding interest or duty even though it contains matters which would otherwise be actionable and though the duty is not a legal one but only a moral or social obligation. See Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907); Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942); Fiore v. Rogero, 144 So.2d 99 (Fla. 2d DCA 1962); O’Neal v. Tribune Company, 176 So.2d 535 (Fla. 2d DCA 1965). Reviewing the facts of this case in light of the above principle of law, we find the trial judge correctly determined as a matter of law that the subject letter of January 4, 1974 was qualifiedly privileged. The letter being of a privileged nature, the duty devolved upon the plaintiffs to prove the existence of actual malice on the part of defendants. See 20 Fla.Jur. Libel and Slander § 119 (1958). Inherent in the jury’s verdict for the defendants was the finding that plaintiffs failed in their burden. We cannot say that this verdict was contrary to the manifest weight of evidence and, therefore, we affirm the judgment appealed.

Affirmed.