author: HOLMES, Judge.

text:
    Melvin E. CLEVENGER, Jr. v. STATE of Alabama.
    Civ. 1502.
    Court of Civil Appeals of Alabama.
    April 4, 1979.

      Charles L. Howard, Jr., of Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Mary Lee Stapp, Clyde P. McLendon, Asst. Attys. Gen., for appellee.
   HOLMES, Judge.

This is a paternity case.

The action against the defendant was instituted by affidavit and warrant charging the defendant with paternity of the prosecutrix’s child. The defendant plead guilty to the charge in the family court of Jefferson County.

Thereafter, pursuant to Code of Ala.1975 § 26-12-8, the defendant appealed to the circuit court and demanded a trial by jury. After a de novo trial, the defendant was found to be the father of the child. Hence this appeal.

The defendant, through able and distinguished counsel, has raised numerous assignments of error regarding evidentiary questions, the trial court’s oral charge and other matters which it is contended require reversal. We discuss below each of defendant's issues and the facts, as revealed by the record, as they relate to these contentions.

I

The defendant argues that the trial court erred to reversal in failing to allow cross-examination of the prosecutrix on the issue of whether another young man had sexual access to her. It is contended that by disallowing a particular question propounded of the prosecutrix, the defense was.precluded from showing the defendant was not the father of the illegitimate child. We disagree.

The scope and extent of cross-examination is a matter reserved for the sound discretion of the trial court and the exercise thereof is not reviewable absent a gross abuse. Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975). The defense relies on Kelly v. State, 133 Ala. 195, 32 So. 56 (1902), where the defense attempted to show that another man had associated with the prose-cutrix but the trial court totally excluded evidence on the issue. The total exclusion .of evidence was held to be a gross abuse of discretion.

The facts of Kelly, supra, are inap-posite to the instant situation. The record reveals that the defense thoroughly probed the issue of the prosecutrix’s association with other men, and thus it cannot be successfully argued that there was a denial of the right to cross-examine this witness.

II

Defendant, as in issue I above, alleges reversible error on the ground that his cross-examination of a prosecution witness was improperly foreclosed to his prejudice.

At trial, the defendant advanced the theory that the prosecutrix and a Mrs. Melcher conspired to induce the defendant to travel to Georgia for the purpose of marrying the prosecutrix. The trial court sustained an objection to a question on cross-examination asking the witness whether she had discussed such a trip with the prosecutrix and the defendant. The record reveals that the trial court excluded the question as repetitious in that the defense had propounded numerous questions on the same subject prior to asking the question which was excluded.

It is well within the discretion of the trial court to exclude repetitious questions. Smith v. Dillard, 291 Ala. 96, 278 So.2d 358 (1973). For this reason and the reasons set forth above, we find no error with respect to this contention.

III

Defendant next contends that during the course of the trial, the, trial court prejudi-cially commented on the credibility of one of the prosecution’s witnesses, when after sustaining an objection to the repetitious question discussed in issue II above, the court stated, “This witness has done her best.” We find no reversible error here.

We agree with defendant that it is improper for the court to comment to the jury on the credibility of a witness. Gamble, McElroy’s Alabama Evidence § 469.01 (3rd ed. 1977). However, in this instance, the record reveals that the court’s admonition of the defense, viewed as it must be in light of the repetitious questioning, is clearly not a comment on the credibility of the witness. Put another way, the trial court’s comment was simply a statement that the witness had in fact answered the question to the best of her ability.

Furthermore, we note that the court went to some length, in its instructions to the jury, to inform them that any rulings of the court and anything said by the court, were not to be considered as exhibiting any opinion as to the facts of the case. We find no reversible error in this regard.

IV

There was testimony that the defendant acknowledged the prosecutrix’s unborn child as his own on more than one occasion while in the home of Mrs. Melcher. On direct examination, the defendant denied that he had been there on those occasions and, further, denied having acknowledged the child as his.

During direct examination, by objection, the defense was foreclosed from asking a repetitive question as to whether the defendant was present at the Melcher home with the prosecutrix and others when there was a discussion concerning a Georgia marriage. Defendant contends that the exclusion of the question prevented him from refuting the testimony of the prosecutrix and others. We disagree.

The record clearly indicates that defendant had an opportunity and in fact completely denied visiting the Melcher home on the occasions in which the alleged conversations occurred. Thus, the error, if any there be, is not a ground for reversal in that it was not of a material nature and cannot be said to have injuriously affected the substantial rights of defendant. ARAP 45. See also Pair v. Rice, 23 Ala.App. 187, 122 So. 297 (1929).

V

The defendant additionally assigns as error the reading of the district attorney’s complaint during the court’s instruction of the jury. It is argued that since the complaint showed that the defendant had appealed from an adverse judgment of the family court, this apprised the jury that the trial was not de novo. Because the provisions of Code of Ala.1975 § 26-12-8 required that circuit trials of this nature be de novo, it is argued that the reading violated the statute. We do not agree.

The record is totally devoid of any reference before the jury of the fact that the proceeding was appealed from an adverse judgment of the family court, i. e., there is no reference of other proceedings prior to defendant’s de novo appeal to the circuit court. When the record does not disclose the fact assigned as error, such a ground for error cannot be considered on appeal. Gilmore v. Lee, 282 Ala. 182, 210 So.2d 415 (1968).

VI

The defendant next complains that the court’s instructions to the jury included an improper statement of the purpose of paternity proceedings, i. e., to compel one who is found to be the father of the child in question to support the child and to indemnify the public against the costs of such support. It is contended that this statement injects an improper issue into the proceedings because the only issue for the jury’s consideration in such cases is whether the defendant is the father of the child.

While we should not be understood as necessarily approving the trial court’s instructions, we do not find reversible error in giving such instructions. See ARAP Rule 45; Pair v. Rice, supra.

VIIand VIII

Defendant takes exception to the two jury forms which were read to the jury in the court’s instructions.

One form is as follows: “We, the Jury, find the issue in favor of the defendant, Melvin Eugene Clevenger, Jr., and find that he is not the real father of Jason Spencer, the illegitimate child of Sherri Lee Spencer.” The defendant argues that this language is misleading in that it requires the jury to find that the defendant is not the father, a burden of proof which the law does not impose on a paternity defendant.

Although again, we do not necessarily approve this form, our reading of the record indicates that the court carefully explained to the jury that the State had the burden of proof to reasonably satisfy that the defendant was the father. Furthermore, there was a clear explanation that the accused in such cases is presumed innocent and that it is not his burden to prove his innocence. We therefore find no error in this regard. See ARAP Rule 45.

Defendant additionally maintains that the form to be used in the event the jury found for the State impermissibly injected the name of the State as plaintiff, and because the prosecutrix is the real party in interest, this prejudiced the rights of the defendant in the jury’s deliberations.

It is well settled, by statute and by case law, that in paternity suits, the State is the plaintiff, and the issue in such cases is to be resolved between the State and the accused. Code of Ala.1975 § 26-12-1. See also Kuehlthau v. State, 92 Ala. 91, 9 So. 394 (1891). Thus, it cannot be said that the injection of the name of the State, as plaintiff in the suit, prejudiced the defendant. We therefore find no error with respect to this contention.

IX

The defendant next maintains that the trial court erred to reversal in overruling defendant’s objections to prosecution questions which asked the defendant whether two of the prosecution’s witnesses had told the truth. The record reveals the following colloquy occurred between the prosecutor and the defendant:

Q And you’re saying that everything they said was a lie? What do you say about—
MR. HOWARD: We object to that.
THE COURT: Sustained.
Q Was their testimony the truth?
MR. HOWARD: Objection, your Hon- or.
THE COURT: Overruled.
MR. HOWARD: That’s two people. It’s not up to him to say whether or not they were telling the truth. That’s for the jury to decide.
THE COURT: Overruled.
MR. WRIGHT (Resumed):
Q Were they telling the truth?
A Some; yes.
Q With respect to their testimony about your visits to their home, in January, February, and March, were they telling the truth?
A No, sir.
Q Neither of them?
A No, sir.
MR. WRIGHT: That’s all.

We agree that these questions were improper, but we find they did not prejudice the defendant in this instance.

A question to a witness which asks whether another witness has testified falsely is improper because it calls for a conclusion of the witness and invades the province of the jury to determine the veracity of witnesses’ testimony. H. Curjel & Co. v. Hallet Mfg. Co., 198 Ala. 609, 73 So. 938 (1916). See also Elliot v. State, 48 Ala.App. 515, 266 So.2d 318, cert. denied, 289 Ala. 742, 266 So.2d 321 (1972); Haynes v. State, 40 Ala.App. 106, 109 So.2d 738 (1958), cert. denied, 268 Ala. 546, 109 So.2d 746 (1959). Thus, the trial court was in error in failing to sustain objections to the above noted questions propounded by the prosecution. However, as set forth below, the error was harmless.

A judgment may not be reversed on the ground of improper admission of evidence unless, after examination of the entire cause, it is determined that the error has probably injuriously affected substantial rights of the parties. See, e. g., ARCP, Rule 61; ARAP, Rule 45; Slay v. McKean Paint & Hardware Store, Inc., 55 Ala.App. 487, 317 So.2d 326 (1975). In Slay, we held that where there is ample evidence to support the verdict, without consideration of the improper evidence, the error will not compel reversal.

In the instant case, the jury had before it ample evidence to support its conclusion that the defendant was the father of the illegitimate child, notwithstanding the improper admission of defendant’s testimony.

The record indicates that the defendant testified he had sexual access to the prose-cutrix and admitted to having sexual intercourse with her on a frequent basis. There is corroborated evidence that the defendant acknowledged the unborn child as his own. The record further shows that the defendant told the prosecutrix that he would marry her and that she had no cause to worry over her dilemma. Accordingly, we hold that the admission of the above noted testimony was error, although viewing the entire cause, it did not prejudice substantial rights of the defendant.

Furthermore, we particularly note that the questions, as shown above, relate to a collateral point, to wit, not whether the defendant is the father but whether there were discussions in the Melcher home concerning a Georgia marriage. This court will not reverse the court below based on a ruling which could not have legally affected the result of the trial. Pair v. Rice, supra.

X

The defendant’s final contention, as argued in brief, is that the trial court erred in refusing to grant his motion for a new trial. The grounds asserted to the trial court for granting the motion are the issues presented on this appeal. Additionally, the defendant contended that the verdict was not supported by the preponderance of the evidence. For the reasons set forth above, we find no error in the denial of defendant’s motion for a new trial, and accordingly find this case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Jerry Wayne ANDREWS v. STATE.
    4 Div. 692.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.
    Rehearing Denied March 27, 1979.
    Samuel L. Adams, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment Jerry Wayne Andrews and Namon Andrews, whose names are to the Grand Jury otherwise unknown, did have in their possession marijuana, a controlled substance, contrary to law, against the peace and dignity of the State of Alabama.”

A severance was granted and appellant Jerry Wayne Andrews was arraigned, in the presence of retained counsel, and interposed a plea of not guilty. Following a trial the jury returned a verdict stating, “We, the jury, find the defendant, Jerry Wayne Andrews, guilty of the possession of marijuana for his own use.”

The trial court sentenced appellant to the County jail for a period of six months. The Court also imposed a fine of five hundred dollars as additional punishment. The fine having not been paid the Court sentenced appellant to the Houston County Jail for 140 days, “to work out the fine in this case. And, such additional number of days, at the rate of $3.00 a day, to work out the costs.”

The evidence presented by the State was more than ample to prove appellant was in possession of marijuana at the time he was arrested. Dothan Police Officer Jackie Mendheim testified that, in the early night hours on November 17, 1977, he pursued a Dodge van for running three stop signs. When the van ran the first stop sign Men-dheim turned on the blue light of his vehicle. At this time the driver of the van speeded up in an attempt to escape. During the chase Mendheim radioed other police units giving a description of the van and its tag number. The van traveled several blocks before it was finally stopped by other police units. At the time the van was stopped Jerry Wayne Andrews was driving it. There were two other persons riding in the van. Appellant and the passengers got out leaving the sliding door of the van open. Officer Mendheim walked up to the open door of the van and saw marijuana seed, marijuana and pieces of paper on the carpet on the floor of the van. This contraband was in plain view of the officer standing outside the open door. Mendheim went into the Sav-A-Minit store located at the place where the van was stopped and got a small brown bag and placed the marijuana in the bag. The marijuana was subsequently sealed in a police department envelope and Officer Mendheim wrote his name over the seal. It was later turned over to the docket sergeant.

The van was driven to police headquarters by another police officer followed by Officer Mendheim. Between fifteen and thirty minutes after reaching the station house Officer Mendheim took the keys from the officer who drove the van to the police department and went to the van which had been locked by the officer who drove it from the arrest scene. Mendheim unlocked the van and found a plastic bag containing marijuana under the mattress in the back of the . van. The plastic bag was put in an evidence envelope and sealed. Mendheim wrote his initials over the seal.

Dothan Police Officer Wendell White testified that, on November 21, 1977, he received the two evidence packages which were both still sealed with “Mendheim” written on the seal. White added his initials and gave both intact bags to Officer Robert Sorrells. Sorrells personally delivered both sealed packages to the Alabama Department of Toxicology in Enterprise, Alabama.

The State Toxicologist, Dr. G. R. McCa-han, Jr., of the Enterprise Division stated that on November 21, 1977, he received the above described packages and that the seals were still intact. He opened each package without disturbing the seals and conducted a laboratory analysis and determined that both packages contained marijuana. The marijuana was a very small amount.

Appellant did not testify nor did he offer any evidence in his defense.

Only two issues are raised on this appeal in which appellant claims reversible error was committed. He claims the State failed to prove that he had constructive possession of the marijuana found in the van driven by him at the time he was arrested, and that he had knowledge that the marijuana was in the van. He further contends that the trial court committed reversible error when he imposed a $500.00 fine on appellant.

Appellant relies on Roberts v. State, Ala.Cr.App., 349 So.2d 89, in support of his contention that the mere presence of an accused in an automobile is not sufficient to establish the requisite knowledge of the presence of drugs. Appellant overlooks the further holding in Roberts that guilty knowledge may be established by circumstantial evidence. Here, as in Roberts, the marijuana was found on the carpet which covered the entire floor of the van. It was not concealed and it was in plain view. The facts in this case are not distinguishable from the facts in Roberts except as to the quantity of the illegal drugs. In Roberts the Court went on to say:

“The evidence presented raised a question of fact for the jury. Such evidence, if believed, is sufficient to support the conviction and the denial of a motion to exclude the State’s evidence or the refusal to give the affirmative charge does not constitute error. Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760 (1975)”

What was said in Roberts, supra, is equally applicable to this case, and is apt authority for the affirmance of the judgment of conviction. See also Daniels v. State, 49 Ala.App. 654, 275 So.2d 169 and Henderson v. State, Ala.Cr.App., 347 So.2d 540.

Appellant’s second contention contains merit, but does not require a reversal. In Grace v. State, 57 Ala.App. 586, 329 So.2d 643, this Court held:

“In a prosecution by indictment where the jury fails to impose a fine, the trial judge is without authority to do so. Carpenter v. State, 50 Ala.App. 543, 280 So.2d 804; Osner v. State, 54 Ala.App. 520, 310 So.2d 241.”

The judgment of the court below to the extent that it imposed a fine of five hundred dollars, and in lieu of the payment of said fine, sentenced appellant to 140 days to work out the fine, must be treated as sur-plusage. Otherwise, the judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Jerry Wayne ANDREWS.
    78-438.
    Supreme Court of Alabama.
    April 20, 1979.
   ALMON, Justice.

Writ Denied.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


text:
    Lewis ASKEW v. STATE.
    5 Div. 431.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.

      Ruth S. Sullivan, Dadeville, for appellant.
    William J. Baxley, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State.
   ON REHEARING

BOWEN W. SIMMONS, Retired Circuit Judge.

Appellee has timely filed an application for rehearing. The application has merit. The original opinion, filed February 20, 1979, is vacated and withdrawn. This opinion is substituted therefor.

Appellant, on appeal from the District Court, pled not guilty to an information in the Circuit Court which charged that he “did without lawful excuse desert or willfully neglect or refuse or fail to provide for the support and maintenance of his, or her, child, or children, under the age of eighteen years, against the peace and dignity of the State of Alabama.” The jury returned a verdict of guilt and the trial court imposed twelve months imprisonment.

We have carefully reviewed the evidence wherein there was proof by facts and figures that the young child was “then and there in destitute or necessitous circumstances.” Title 34, Section 90, Code of Alabama 1940; Section 30 — L-51, Code of Alabama 1975.

The mother of the dependent child, Jeffery Askew, testified that she had not received any financial support from appellant-defendant, the father, during the last twelve months; that he never made an offer to provide food and adequate clothing for the child. The mother further testified that the child received welfare assistance from Chambers County and without such assistance she would not have been able to provide food and adequate clothing for him.

Ms. Ann Rucks, Director of Pensions and Security, Chambers County, a State’s witness, testified that on February 25, 1970, she had a conversation with defendant about the paternity of the child and that he acknowledge in writing that he was Jeffery’s father. This written acknowledgment was offered and admitted in evidence. The witness further testified that the mother of the child had been receiving welfare from the State for the preceding twelve months.

Thus it appears from the evidence that the mother and the child were both public charges.

We quote from Poke v. State of Alabama, 369 So.2d 840, Supreme Court of Alabama, released March 9, 1979, wherein Justice Maddox, speaking for the Court, observed:

“The failure of proof found by the majority to exist in Turner does not exist here, because there was direct testimony in this case that the children were getting food stamps; therefore, there was proof that the children had already ‘ “become a charge upon the public”.’ ”

The judgment is due to be affirmed. It is so ordered.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

APPLICATION FOR REHEARING GRANTED.

AFFIRMED.

All the Judges concur.


author: ENGLAND, Chief Justice. ALDERMAN, Justice,

text:
    OVERLAND CONSTRUCTION COMPANY, INC., Petitioner, v. Jerry I. SIRMONS, et ux., et al., Respondents, (Two cases).
    Nos. 52799, 52788.
    Supreme Court of Florida.
    March 1, 1979.
    Rehearing Denied May 2, 1979.
    Justus W. Reid of Magill, Sevier & Reid, Palm Beach, and Edna L. Caruso, West Palm Beach, for petitioner-appellant.
    Richard L. Martens of Cone, Owen, Wagner, Nugent, Johnson & McKeown, and Larry Klein, West Palm Beach, for respondents-appellees.
   ENGLAND, Chief Justice.

In this proceeding we are called upon to review the constitutionality of section 95.-ll(3)(c), Florida Statutes (1975), insofar as it absolutely bars the right to bring suit for certain injuries incurred on real property unless the lawsuit is commenced within twelve years after the completion of the improvements which produced the injury. The relevant portion of the statute, which limits actions “founded on the design, planning, or construction of an improvement to real property,” states:

In any event the action must be commenced within 12 years after the date of actual possession by the owner, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer.

In 1961, Overland and another company completed construction of a building in West Palm Beach. In 1975, more than twelve years after Overland’s completion of construction, Jerry Sirmons was injured in the building in the course of his employment. He sued both the owner of the building and its builders. When Overland moved for a summary judgment based on the statutory twelve year ban on lawsuits, the quoted portion of section 95.11(3)(c) was declared unconstitutional by the trial court, thereby allowing Sirmons and the other respondents to proceed with the lawsuit notwithstanding the seeming bar of the statute. Overland has now sought to have the ruling reversed here, pursuant to article V, section 3(b)(3), Florida Constitution, and Burnsed v. Seaboard Coastline Railroad Co., 290 So.2d 13 (Fla.1974).

The trial court held the statute unconstitutional as violative of article I, section 21 of the Florida Constitution, which provides:

The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

This constitutional mandate, which has appeared in every revision of the state constitution since 1838, has no counterpart in the federal constitution and derives its scope and meaning solely from Florida case law. The polestar decision for the construction of this provision is Kluger v. White, 281 So.2d 1, 4 (Fla.1973), in which we held:

[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Based on Kluger, then, we must first decide whether the legislature, without providing any reasonable alternative, has abolished a statutory or common law right of action protected by article I, section 21, and if so, whether that action is grounded both on an overpowering public necessity and an absence of any less onerous alternative means of meeting that need.

It is undisputed that a cause of action of the type asserted by Sirmons in this case— the right of an injured person to bring suit against a building contractor with whom he is not in privity for damages suffered as a result of alleged negligence in construction even after the owner has accepted the completed building — is one for which a right of redress is guaranteed by article I, section •21. This common law right, though not expressly recognized by statute until 1975, was acknowledged as extant by this Court in 1959. When the “access to courts” provision of the constitution was re-adopted in 1968, there existed a right of redress against contractors for the type of injury Sirmons suffered, provided, of course, that suit was commenced within four years after the cause of action accrued by the occurrence of the injury.

Section 95.11(3)(c), insofar as is relevant to this proceeding, creates absolute immunity from suit for certain professionals and contractors connected with the construction of improvements to real property after the expiration of twelve years from the completion of the building. It unquestionably abolished Jerry Sirmons’ right to sue Overland for his injuries and provided no alternative form of redress. The only remaining issue under Kluger, therefore, is whether the legislature has shown an overpowering public necessity for this prohibitory provision, and an absence of less onerous alternatives.

The legislature itself has not expressed any perceived public necessity for abolishing a cause of action for injuries occurring more than twelve years after the completion of improvements to real property. Overland suggests that several other states have adopted analogous limitations, principally to counter a trend in the decisional law toward expanded liability for professional engineers, architects and contractors, and that the need for this type of statute is predicated on the difficulty of proof which naturally accompanies the passage of time.

We recognize the problems which inhere in exposing builders and related professionals to potential liability for an indefinite period of time after an improvement to real property has been completed. Undoubtedly, the passage of time does aggravate the difficulty of producing reliable evidence, and it is likely that advances in technology tend to push industry standards inexorably higher. The impact of these problems, however, is felt by all litigants. Moreover, the difficulties of proof would seem to fall at least as heavily on injured plaintiffs, who must generally carry the initial burden of establishing that the defendant was negligent. In any event, these problems are not unique to the construction industry, and they are not sufficiently compelling to justify the enactment of legislation which, without providing an alternative means of redress, totally abolishes an injured person’s •cause of action. The legislation impermissi-bly benefits only one class of defendants, at the expense of an injured party’s right to sue, and in violation of our constitutional guarantee of access to courts.

This analysis of section 95.11(3)(c) naturally calls for an explanation of our recent decision in Bauld v. J. A. Jones Construction Co., 357 So.2d 401 (Fla.1978), where we sustained this very provision in the face of a constitutional challenge by one whose cause of action was curtailed, rather than wholly barred, by the effect of section 95.-11(3)(e). In Bauld, unlike the present case, the injury occurred prior to the enactment of section 95.11(3)(c), at a time when the applicable statute of limitations provided only that suit must be commenced within four years. When section 95.11(3)(c) took effect in 1975, two and one-half years of that period had elapsed, during which time an action could have been filed. Moreover, the savings clause of section 95.022 extended the deadline for instituting existing causes of action which would otherwise have been terminated by the new twelve year limitation for an additional year. Consequently, the absolute twelve year prohibitory provision did not operate to abolish Pearl Bauld’s cause of action, but merely abbreviated the period within which suit could be commenced from four to three and one-half years. Although shortened, the time for bringing suit was found to be ample and reasonable; it was not forestalled altogether.

By contrast, Sirmons’ cause of action was already barred by the twelve year limitation when it first accrued — that is, when his injuries occurred. No judicial forum would ever have been available to Sirmons if the twelve year prohibitory portion of the statute were given effect. Obviously, our decision as to the validity of the statute vis-a-vis Pearl Bauld would not operate to bar our declaring the same statute invalid vis-a-vis Jerry Sirmons.

Some mention should be made of decisions from other jurisdictions concerning similar statutes. In several cases relied on by Overland the courts reviewed statutory provisions similar to section 95.11(3)(c) under a much less exacting standard than our own constitution and decisional law require. The courts in those states essentially determined that their laws constituted a reasonable exercise of the police power, unrelated to any “access to courts” provision in their organic law or a subservient Kluger standard.

A foreign decision which we do find persuasive, however, is Saylor v. Hall, 497 S.W.2d 218 (Ky.1973), in which a like statute was tested against a constitutional provision guaranteeing a right of access to courts similar to our own. The Kentucky court recognized that a majority of other jurisdictions considering the issue had upheld the validity of such statutes against due process and equal protection attacks, but it nonetheless held that

the application of purported limitation statutes in such manner as to destroy a cause of action before it legally exists cannot be permissible if it accomplishes destruction of a constitutionally protected right of action.

We similarly conclude that in Florida, as in Kentucky, the unique restriction imposed by our constitutional guarantee of a right of access to courts makes it irrelevant that this “statute of repose” may be valid under state or federal due process or equal protection clauses.

We hold that, insofar as section 95.-ll(3)(c), Florida Statutes (1975), provides an absolute bar to lawsuits brought more than twelve years after events connected with the construction of improvements to real property, it violates article I, section 21 of the Florida Constitution. The order of the trial court is, therefore, affirmed.

It is so ordered.

ADKINS, SUNDBERG and HATCHETT, JJ., concur.

ALDERMAN, J., dissents with an opinion, with which BOYD and OVERTON, JJ., concur.

ALDERMAN, Justice,

dissenting.

Section 95.11(3)(c), Florida Statutes (1975), prevents a cause of action founded on the design, planning, or construction of an improvement to real property from arising against professional engineers, registered architects, and licensed contractors after twelve years from the date of actual possession by the owner, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer. The majority, relying on Kluger v. White, 281 So.2d 1 (Fla.1973), holds this section to be in violation of article I, section 21, of the Florida Constitution, because the legislature failed to show an overpowering public necessity or that there was no less onerous alternative method.

Although the legislature, in section 95.-ll(3)(c) did not make an express finding that this statute was enacted to meet an overpowering public necessity and that there is no less onerous alternative, it is apparent to me that the limitation on causes of actions imposed by this section was created to meet such a necessity. Some insight into .the purpose of section 95.-ll(3)(c) may be found in Grissom v. North American Aviation, Inc., 326 F.Supp. 465 (M.D.Fla.1971). In that case, the court was considering section 95.11(10), Florida Statutes (1969), the predecessor to section 95.-ll(3)(c), which provided a time limitation of twelve years within which actions may be brought against professional engineers and registered architects. The widow of astronaut Virgil Grissom sued for the wrongful death of her husband, who had been killed while engaged in a “ground test” of an apollo space capsule. One of the issues before the court was the intent of the legislature in passing the twelve-year limitation. In the absence of any legislative history, the court looked to a somewhat similar statutory proposal that had been before the United States House of Representatives— H.R. Bill No. 4181. The court considered House Report No. 91-370, which accompanied H.R. Bill 4181. The report explained the basis for limiting to some definite period the time in which an action could be brought against the engineers, architects, or designers of improvements to realty. The reasons set out in the report are equally applicable to Florida and make clear the overpowering public necessity for section 95.11(3)(c). The report in part said:

“. . . Architects who design buildings or improvements to real property, engineers who design and install equipment, or contractors, who build the improvements under rigid inspection and conformity with building codes, may find themselves named as defendants in such damage suits many years after the improvement was completed and occupied.
Comparatively, modern architecture, engineering, and construction, with the new techniques, technology, and methods, may give the appearance of defective or unsafe conditions to older structures which conditions may be used as a basis for such damage suits. In such cases, the architectural plans used may have been discarded, copies of building codes in force at the time of design or construction may no longer be in existence and the persons who were individually involved may have deceased or may not be located. The purpose of the law is to provide a reasonable time and opportunity for a person who has suffered injury or damages to bring an action. To permit the bringing of such actions without any limitation as to time places the defendant in an unreasonable position if not imposing the impossibility of asserting a reasonable defense.
At hearings before your Committee, specific cases were mentioned to illustrate the need for the pending legislation. In one ease an architectural firm designed an auditorium which was built in 1928. In 1965, a visitor to the auditorium fell on the stairway and was injured. Her allegation in a suit for damages against the owner was that her injury was due to the improper location of a handrail. The owner of the building, in turn, filed suit against the architect for alleged negligence in designing the stairway and handrail. Thus, 38 years after the completion of the construction the architectural firm is now defending itself against a $50,000 lawsuit.
In another instance an engineering firm designed a grain elevator which was built in 1934. The elevator was destroyed by an explosion in 1957. In 1959, the owner sued the engineer for $250,000 alleging that the explosion was due to errors in the design of the ventilation system.
In the first case, none of the architects involved in the design of the auditorium is alive today but the architectural firm is being sued. The plans, specifications, and contracts may have been lost or destroyed. Old building codes, essential to the defense cannot be found. In the grain elevator case, the plaintiff in effect alleged that the engineer should have created in 1934 a ventilation system based on 1959 standards and technology.
Architects, engineers, and contractors have no control over an owner whose neglect in maintaining an improvement may cause dangerous or unsafe conditions to develop over a period of years. They cannot prevent an owner from using an improvement for purposes for which it was not designed. Nor can they prevent the owner of a building from making alterations or changes which may, years afterward, be determined unsafe or defective and appear to be a part of the original improvement.”

326 F.Supp. at 467-8. The federal district court' determined that this same general intent was a major reason for passage of section 95.11(10) and similar statutes in other jurisdictions.

If the legislature, in enacting section 95.-ll(3)(c), had made findings similar to those quoted above, there could be little doubt that it would have shown an overpowering public necessity and the absence of a less onerous alternative. Even without such express recital, however, I believe the need for section 95.11(3)(c) is clear. In the present case, the time lapse was sixteen years, but it could just have well been thirty-two or sixty-four years. Without section 95.11(3)(c), there is no limitation on the number of years after which a suit could be brought against an engineer, architect, or contractor.

The legislature has balanced the conflicting interests and determined that twelve years is a reasonable time after which a cause of action may not arise. In doing so, it has not, in my opinion, violated article I, section 21 of the Florida Constitution. I would reverse the trial court’s order.

BOYD and OVERTON, JJ., concur.

      . The trial court also invalidated the statute on other constitutional grounds, but our disposition of this case makes it unnecessary to address those issues.

        . G. B. B. Investments, Inc. v. Hinterkopf, 343 So.2d 899, 901 (Fla. 3d DCA 1977).

      . See, for example, Carter v. Sparkman, 335 So.2d 802 (Fla.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977); Sun-span Eng’r & Const. Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla.1975); Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla. 1974); Kluger v. White, 281 So.2d 1 (Fla.1973); Flood v. State ex rel. Homeland Co., 95 Fla. 1003, 117 So. 385 (1928).

      . § 2.01, Fla.Stat. (1975), provided that “[t]he common and statute laws of England which are of a general and not a local nature . down to the 4th day of July, 1776, are declared to be of force in this state . . The common law principles as adopted by section 2.01, however, have not been confined as of 1776, but have been held to be “designed for application to new conditions and circumstances.” State ex rel. Burr v. Jacksonville Terminal Co., 90 Fla. 721, 744, 106 So. 576, 584 (1925).

      . Ch. 74-382, § 7, Laws of Fla., codified as § 95.11(3)(c), Fla.Stat. (Supp.1974) (effective January 1, 1975).

      . Slavin v. Kay, 108 So.2d 462, 465-67 (Fla.1959). While the common law rule in effect in 1776 had severely limited a contractor’s liability, a more expansive view was developed by our courts over the years as exceptions to the general rule. For a discussion of the evolution of contractor liability in Florida, see Slavin, and see generally, W. Prosser, Torts § 104, at 680-82 (4th ed. 1971).

      . § 95.11(4), Fla.Stat. (1967).

      . See, for example, Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), appeal dismissed, 401 U.S. 901, 91 S.Ct. 868, 27 L.Ed.2d 800 (1971); Josephs v. Burns, 260 Or. 493, 491 P.2d 203 (1971).

      . § 95.11(4), Fla.Stat. (1971).

      .Under section 95.022, any action barred by the new statute that would not have been barred under prior law could still be commenced at any time before January 1, 1976. Of course, this provision is of no benefit to Sir-mons, or others similarly situated, whose right of action had not arisen prior to January 1, 1975.

      . Several state statutes are identified in Comment, Limitation of Action Statutes for Architects and Builders — Blueprints for Non-action, 18 Catholic U.L.Rev. 361 (1969).

      . Section 14 of the Constitution of Kentucky provides:
      All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

      .497 S.W.2d at 225.


author: BOYD, Justice.

text:
    William Alton GODWIN, Appellant, v. STATE of Florida, Appellee.
    No. 53328.
    Supreme Court of Florida.
    March 29, 1979.

      Douglas L. Grose of Anderson, Thorn, Grose & Quesada, Tampa, for appellant.
    Jim Smith, Atty. Gen., and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   BOYD, Justice.

The appellant was convicted in a jury trial of the crime of sexual battery by a person eighteen years of age or older upon a person eleven years of age or younger, a capital felony forbidden by section 794.-011(2), Florida Statutes (1975). The trial court imposed a sentence of life imprisonment without eligibility for parole for twenty-five years. § 775.082(1), Fla.Stat. (1975). The appellant raised the question of the statute’s constitutional validity, which was inherently passed upon when the court rendered the judgment of conviction. We have jurisdiction of the appeal. Art. V, § 3(b)(1), Fla.Const.

The evidence, which consisted of the appellant’s written confession and the testimony of the victim, was sufficient to support the jury’s verdict. Both items of evidence were properly admitted.

The appellant contends that the statute he was convicted of violating is unconstitutionally vague. This issue has been resolved against appellant’s contention. Harrison v. State, 360 So.2d 421 (Fla.1978).

The appellant contends that the provision in section 775.082(1), Florida Statutes (1975), that a person convicted of a capital felony be required to serve no less than twenty-five years before becoming eligible for parole, constitutes cruel or unusual punishment. This issue too has been resolved against the position taken by the appellant. Banks v. State, 342 So.2d 469 (Fla.1976).

The appellant contends that the trial court erred in imposing sentence without complying with the mandatory procedures provided for by former chapter 801, Florida Statutes (1975). We hold that there was no error because sexual battery is not an offense under former chapter 801. It is not among the crimes listed in section 801.041, Florida Statutes (1975), which provides the definition of an “offense under the provisions of this chapter.” See Beatty v. State, 332 So.2d 365 (Fla. 2d DCA 1976).

The appellant’s other points on appeal have been considered and found to be without merit.

The judgment of the circuit court is affirmed.

ENGLAND, C. J., and ADKINS, OYER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

      . Chapter 801 was repealed by chapter 77-312, section 31, Laws of Florida.


author: ENGLAND, Chief Justice.

text:
    Nadean O. McARTHUR, Petitioner, v. Philip G. NOURSE, Circuit Judge, etc., Respondent.
    No. 53465.
    Supreme Court of Florida.
    March 29, 1979.

      Raymond E. Ford, Fort Pierce, and Chester Bedell and Peter D. Webster of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen., and Basil S. Diamond and Kenneth G. Spillias, Asst. Attys. Gen., West Palm Beach, for respondent.
   ENGLAND, Chief Justice.

This cause is before us on remand from the United States Supreme Court vacating our denial of petitioner Nadean McArthur’s suggestion for writ of prohibition. McArt-hur was tried and convicted of the first degree-murder of her husband by the Circuit Court of Okeechobee County in 1975. On appeal, this Court reversed her conviction and directed that she be afforded a new trial. McArthur v. State, 351 So.2d 972 (Fla.1977). After its petition for rehearing was denied, the state immediately moved for a retrial. McArthur filed a motion to dismiss the indictment on the ground that retrial would subject her to double jeopardy in violation of the Florida and federal constitutions. When the circuit court denied her motion to dismiss and scheduled a new trial date, McArthur filed her suggestion for writ of prohibition with this Court, again asserting that she was being subjected to double jeopardy. We denied her petition, but our denial was vacated and remanded by the United States Supreme Court for further consideration in light of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

In Burks the Court held that a second trial of a defendant would violate the double jeopardy clause of the fifth amendment to the United States Constitution if an appellate court had reversed the first conviction on the ground that the evidence was, insufficient. Overruling its own established precedents, the Court concluded that a defendant’s motion for a new trial does not operate as a waiver of his right to acquittal on appeal under such circumstances. Where a conviction is reversed due to trial error, however, the Court held that the defendant’s interests are sufficiently protected by affording him a new trial, free from error. Thus, in Greene, the Court remanded the case to the Fifth Circuit Court of Appeals to clarify whether Greene’s conviction had been reversed because of insufficient evidence or trial error.

The state argues that McArthur’s conviction was reversed neither for trial error nor for evidentiary insufficiency. Rather, the state contends that the evidence against McArthur was, though technically sufficient, of such tenuous weight that the “interests of justice” required reversal. The state notes that the United States Supreme Court in Greene specifically declined to rule “as to the double jeopardy implications of a retrial ordered on such grounds.”

Our decision in McArthur v. State, turned upon the special standard applicable to a conviction based wholly on circumstantial evidence:

Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.

The state argues that this standard is not a test of sufficiency, but is, instead, a means of analyzing the weight of the evidence. Consequently, the state argues, neither Burks nor Greene prohibit a second trial of McArthur. We disagree.

First, we specifically characterized McArthur’s major contention as a matter of sufficiency — “that as a matter of law there was insufficient evidence of her guilt to support her conviction.” (Emphasis added.) Nothing in our analysis suggests that our reversal of her conviction was predicated on any grounds other than the sufficiency issue. In fact, our opinion concluded with the observation that “[t]he state simply did not carry its burden of proof,” indicating that the state’s case was legally insufficient to support a conviction.

Second, the standard applicable to circumstantial evidence is clearly a test of evidentiary sufficiency. The numerous precedents referring to the “sufficiency” of circumstantial evidence cannot be disregarded on the state’s premise that the distinction between evidentiary weight and sufficiency was unimportant until Burks and Greene were decided. A critical distinction has existed at least since 1967, when rules 3.380 (formerly rule 3.660) and 3.600 of the Florida Rules of Criminal Procedure were adopted. Rule 3.380(a) provides that a motion for judgment of acquittal should be granted if, at the close of the evidence, “the court is of the opinion that the evidence is insufficient to warrant a conviction.” In contrast, rule 3.600(a)(2) provides that a motion for new trial shall be granted if the jury verdict is “contrary to law or the weight of the evidence.” The state’s failure to satisfy the circumstantial evidence test — that the evidence must not only suggest guilt, but must refute every reasonable hypothesis of innocence — is clearly a proper basis for granting a motion for judgment of acquittal rather than a new trial.

Burks states that
it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient . . . . The appellate decision unmistakably meant that the [trial court] had erred in failing to grant a judgment of acquittal. To hold otherwise would create a purely arbitrary distinction between those in petitioner’s position and others who would enjoy the benefit of a correct decision by the [trial court].

In light of the decision of the United States Supreme Court in Burks, a second trial of McArthur is prohibited by the fifth amendment to the United States Constitution. Accordingly, the suggestion for writ of prohibition is granted, and the trial court is directed to dismiss the indictment charging Nadean McArthur with the first-degree murder of her former husband.

It is so ordered.

ADKINS, OVERTON, SUNDBERG and HATCHETT, JJ., concur.

      . McArthur v. Nourse, 438 U.S. 902, 98 S.Ct. 3119, 57 L.Ed.2d 1145 (1978), vacating our decision in McArthur v. Nourse, 358 So.2d 132 (Fla.1978).

      . 437 U.S. at 17, 98 S.Ct. 2141.

      . Greene v. Massey was before the Court on review from a decision of the Fifth Circuit Court of Appeals upholding a federal district court’s denial of habeas corpus relief to Greene. Greene v. Massey, 546 F.2d 51 (5th Cir. 1977). Greene had been reconvicted of first-degree murder after we had reversed his original conviction. Sosa v. State, 215 So.2d 736 (Fla.1968). While the per curiam decision of this Court, concurred in by four justices, cites insufficiency of evidence as the basis for reversal, three of the four also concurred in a separate opinion dealing with reversible trial error. 215 So.2d at 737 (Ervin, J., concurring specially).

      . 437 U.S. at 26 n.10, 98 S.Ct. 2151 at 2155 n.10. See also Id. at 22 n.2, 98 S.Ct. 2151.

      . McArthur v. State, 351 So.2d 972, 976 n.12 (Fla.1977).

      . Id. at 976.

      . Id. at 978.

      . See, e. g., Driggers v. State, 164 So.2d 200 (Fla.1964); Davis v. State, 90 So.2d 629 (Fla. 1956); Head v. State, 62 So.2d 41 (Fla.1952); Lyons v. State, 47 So.2d 541 (Fla.1950); Frank v. State, 121 Fla. 53, 163 So. 223 (1935); Bellamy v. State, 96 Fla. 808, 119 So. 137 (1928); Tillman v. State, 353 So.2d 948 (Fla. 1st DCA 1978); Donald v. State, 344 So.2d 633 (Fla. 2d DCA 1977); Sanders v. State, 344 So.2d 876 (Fla. 4th DCA 1977); Interest of B. S. v. State, 320 So.2d 459 (Fla. 3d DCA 1975).

      . In re Florida Rules of Criminal Procedure, 196 So.2d 124, 164-65, 167 (Fla.1967).

      . Tillman v. State, 353 So.2d 948 (Fla. 1st DCA 1978); Richardson v. State, 335 So.2d 835 (Fla. 4th DCA 1976); Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974).

      . 437 U.S. at 11, 98 S.Ct. at 2147. We specifically decline to rule upon the double jeopardy implications of appellate reversals based upon considerations of evidentiary weight.


author: PER CURIAM.

text:
    SMALLEY TRANSPORTATION COMPANY, Petitioner, v. Paula F. HAWKINS et al., Respondents.
    No. 55314.
    Supreme Court of Florida.
    March 29, 1979.
    Ansley Watson, Jr. and David C. G. Kerr of MacFarlane, Ferguson, Allison & Kelly, Tampa, for petitioner.
    Prentice P. Pruitt, Legal Director and M. Robert Christ, Staff Counsel of the Florida Public Service Commission, Tallahassee, and Martin Sack, Jr., Jacksonville, for respondents and intervenors.
   PER CURIAM.

Denied.

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


author: PER CURIAM. ADKINS, Justice,

text:
    THE FLORIDA BAR, Complainant, v. William H. TURNER, III, Respondent.
    No. 55561.
    Supreme Court of Florida.
    March 29, 1979.

      G. Lynn Kilpatrick, Asst. Staff Counsel, Fort Lauderdale, for complainant.
    William H. Turner, III, in pro per.
   PER CURIAM.

We have for review the referee’s report and record in disciplinary proceedings charging William Turner with misconduct. Neither The Florida Bar nor the attorney seeks a review of the disciplinary measure recommended by the referee.

The referee’s report contains the following:

II. Findings of Fact as to Each Item of Misconduct of which the Respondent is charged: After considering all the pleadings and evidence before me, I find: The Respondent, William H. Turner, III, was convicted by a jury in. Dade County, Florida, of a violation of Fla.Stat. § 798.-02 (1976). Although the conviction was reversed on appeal, I find, based on the testimony of Policy (sic) Officer Stack, that Respondent had engaged in conduct which, as alleged in the complaint of The Florida Bar, reflected poorly on Mr. Turner’s conduct as a citizen of the State and an Officer of the Court.
III. Recommendation as to whether or not the Respondent should be found guilty:
I recommend that the Respondent be found guilty, as explained below, and specifically that he be found guilty of the following violations of his Oath as an attorney, the Integration Rule of The Florida Bar and the Disciplinary Rules of The Code of Professional Responsibility, to wit:
DR1-102(A)(3) and Integration Rule 11.-02(3)(a) and (b)
IV.Recommendation as to disciplinary measures to be applied:
Upon the conclusion of the presentation of all evidence and argument in this case, this Referee suggested that Bar Counsel and Respondent try to make a joint recommendation for discipline and guilt. This Referee then received the recommendation, which amounted to a conditional plea of guilty, subject to an agreed discipline, to wit: 45 day suspension, to begin not sooner than July 15, 1978. This Referee has accepted the joint recommendation of Bar Counsel and Respondent, and agrees that it is supported by the evidence and by prior decisions of the Supreme Court of Florida. Accordingly, I recommend that Respondent be suspended from the practice of law in Florida for 45 days, to begin not sooner than July 15, 1978, with automatic reinstatement.

The report and recommendation of the referee is approved. The respondent, William Turner, is suspended from the practice of law for a period of forty-five days, beginning sixty days after the filing of this order, with automatic reinstatement at the expiration of the period of suspension upon the payment of costs in the amount of $728.45, which are hereby assessed against respondent.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, and ALDERMAN, JJ., concur.

ADKINS, J., dissents as to punishment with an opinion, with which HATCHETT, J., concurs.

ADKINS, Justice,

dissenting as to punishment.

The reprehensible lewd and lascivious act, on which the complaint is based, occurred in an isolated area at 3:00 in the morning. Even though the attorney agreed to the discipline which was imposed, I feel that such agreement was reached under the pressure and embarrassment of the disciplinary proceeding and should be examined by this Court in the light of other disciplinary orders. In comparing the facts of- this case with those involved in the matter of In re Inquiry of Lee, 336 So.2d 1175 (Fla.1976), I feel that a public reprimand would be appropriate. I would order that briefs be filed and directed to the suitability of the disciplinary measures recommended by the referee. Fla.Bar Integr.Rule, art. XI, Rule 11.09(3)(f).

HATCHETT, J., concurs.


text:
    THE FLORIDA BAR, Complainant, v. E. Pope BASSETT, Respondent.
    Nos. 55647, 56220.
    Supreme Court of Florida.
    March 29, 1979.
    James N. Powers, Bar Counsel, Orlando, and David G. McGunegle, Branch Staff Counsel and Asst. Bar Counsel, and John A. Boggs, Asst. Staff Counsel, Tallahassee, of The Florida Bar, for complainant.
    William B. Barnett, of Rothblatt & Barnett, Orlando, for respondent.
   PER CURIAM.

The above styled causes are hereby consolidated sua sponte.

These matters are before the Court on Petition for Leave to Resign and Motion for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On December 5, 1978, Respondent filed his Petition for Leave to Resign from The Florida Bar; and then on February 23, 1979, The Florida Bar filed its motion alleging:

1. After investigations by the Ninth Judicial Circuit Grievance Committee “B”, formal Complaints were filed against the Respondent. A five-count Complaint covering Case Nos. 09B78008 and 09B78016 was filed on May 4, 1978. . A separate Complaint for Case Nos. 09B77058 and 09B78014 was filed on June 30,1978. . . . Additional probable cause reports for Case Nos. 09B78038, 09B78045 and 09B78T11 were received on October 10, 1978. The Bar’s Complaint covering those cases was filed on February 2, 1979. .
2. Prior to final hearing on the first four cases originally scheduled in early October and then rescheduled in December, 1978, Respondent submitted a Petition for Leave to Resign pursuant to Fla. Bar Integr. Rule, art. XI, Rule 11.08 on the facts of all pending cases in Case No. 55,647. The Petition was dated November 30, 1978 and the Bar’s response in opposition to that Petition was filed on January 26, 1979 after review by the Board of Governors. The Bar prayed that the court would reject the Petition for Leave to Resign in Lieu of Discipline and return the matters for consideration by the referee.
3. On February 8, 1979, the Respondent through counsel submitted a Conditional Guilty Plea to the Complaints filed in all cases in exchange for disbarment from the practice of law and payment of costs. .
4. A total of seven separate probable cause cases are involved in the Bar’s Complaints. As noted in the Bar’s response to the Petition for Leave to Resign, four of the cases involve allegations of blatant misuse of clients’ trust funds including improper trust reeord keeping. Three concern allegations of failure to act or to return unearned fees with detrimental results to the clients. The Respondent has admitted the truth of the allegations in Paragraph 11 of his Petition for the discipline proceedings. The Respondent has additionally entered a plea of nolo contendere to a grand larceny charge in Circuit Court, Orange County, on the facts involving $27,000 wrongfully withheld from the Hamiltons in Case No. 09B78008. He received five years probation and restitution was ordered. The Bar’s Client Security Fund has recommended and the Board of Governors has authorized a maximum payment of $20,-000 in this matter. The Complaints covering the four cases allege a pattern of continual utilization of trust funds for purposes other than for which they were placed in the Respondent’s care. In Case 09B78008, he also wrote a $3,000 check on his trust account dated April 20, 1976 solely to pay a personal rent obligation owed by he and his wife under a lease option. In Case No. 09B78016, he failed to maintain adequate trust account records on funds given to him in trust by a client between July, 1976 and April, 1977 with $566.87 remaining due to the client and unaccounted for in early 1978. In Case No. 09B78038, he received a total of $45,794.27 in a real estate transaction from his clients. When it closed he was obligated to pay off a First Federal Savings and Loan Association mortgage of $33,468.01 from proceeds of the closing but did not do so. A few months later on June 17, 1976, he paid the Savings and Loan Association $10,000. It was only in November, 1976 that the clients discovered there was an outstanding balance on the mortgage of approximately $24,000. An offer to resolve the issue was not completed. Only after the clients hired an attorney and filed a complaint with The Florida Bar did Respondent pay off the Savings and Loan Association in May of 1977, over a year after the original closing. Again, in Case No. 09B78008, on January 28, 1977, he made partial payment of a civil judgment against him by a check drawn on his trust account for $751. Previous payment on his personal account had been returned for insufficient funds. He also represented the Hamiltons mentioned above in Case No. 09B78008 in a real estate transaction which closed June 1, 1977. They were due a total of $37,012.73. Approximately three weeks after the closing on June 22, 1977, other counsel secured $10,012.73 from the Respondent who had failed to pay over the monies due his clients as promised. At that time he advised the new attorney he did not have the remaining trust funds and in August allowed a default judgment to be entered against him in Circuit Court. He also represented the Elmhurst National Bank of Elm-hurst, Illinois which was trustee for an estate in a series of sales of property. When the Welch purchase closed on July 8, 1977, the bank was due $36,505.72. The money was not forwarded until September 15, 1977 and then by a check which was returned for insufficient funds. Only in November, 1977 did the Respondent send one cashier’s check for $33,000 to the bank and three more for $900, $1,000 and $3,505.72, respectively. Throughout this entire period of time, the realtor and the bank had been continually attempting to contact Mr. Bassett regarding payment. .
5. The Executive Committee of The Florida Bar has approved acceptance of Respondent’s Conditional Plea and recommends it to this court as final disposition of the cases. The Plea calls for the Respondent to be disbarred from the practice of law pursuant to Fla. Bar Integr.-Rule, art. XI, Rule 11.10(4) and to pay costs of the proceedings. Such costs now total $3,341.00.

The Petition for Leave to Resign filed by Respondent, E. Pope Bassett, is hereby denied.

The Motion for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline is hereby approved, and Respondent, E. Pope Bassett, is disbarred from the practice of law pursuant to Florida Bar Integration Rule, article XI, Rule 11.10(4), and is ordered to pay costs in the amount of $3,341.00 and to have published in the Southern Reporter an appropriate opinion based on the bar’s complaints and the conditional guilty plea; and it is further

ORDERED that this disbarment shall be effective April 30, 1979, thereby giving Respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients; and it is further

ORDERED that Respondent shall not accept any new business.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, HATCHETT and ALDERMAN, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. John V. BAUM, Respondent.
    No. 56110.
    Supreme Court of Florida.
    March 29, 1979.
    John A. Boggs, Asst. Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel and Branch Staff Counsel of The Florida Bar, Tallahassee, for complainant.
    Terrell Griffin, Orlando, for respondent.
   PER CURIAM.

This matter is before the Court on Motion for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On February 8, 1979, The Florida Bar filed its motion alleging:

1. After initiation of an investigation, Respondent was temporarily suspended pursuant to the allegations in this cause by this court’s order in The Florida Bar v. John V. Baum, Case No. 53,262 on February 10, 1978. The suspension was pursuant to Fla. Bar Integr. Rule, art. XI, Rule 11.10(5).
2. The Eighteenth Judicial Circuit Grievance Committee “A” subsequently completed their investigation and found probable cause against the Respondent which report was received by The Florida Bar on August 30, 1978.
3. The Bar’s Complaint charging Respondent with misuse of trust funds from his firm was filed with the referee on October 4, 1978. .
4. Prior to a final hearing, the Respondent submitted a Conditional Guilty Plea to the Complaint through counsel on December 14, 1978. .
5. At their January 1979 meeting, the Board of Governors of The Florida Bar approved acceptance of Respondent’s Conditional Plea and recommends it to this court as final disposition of the case. The plea calls for Respondent to be suspended for a period of two (2) years and requires proof of rehabilitation prior to a subsequent reinstatement. Respondent also agrees to pay costs of these proceedings presently amounting to $144.20. It is agreed in the plea, if accepted by the court, that the period of suspension will be deemed to have commenced on February 10, 1978 which is the date of the Supreme Court’s order in The Florida Bar v. John V. Baum, Case No. 53,262 which is reported at 355 So.2d 429 (Fla.1978).
6. If this Conditional Guilty Plea is an acceptable disposition of this case to the court, The Florida Bar respectfully suggests the court may dispose of the case without the need for additional proceedings below through an appropriate Order of Suspension based on the plea as accepted and recommended to this court by The Board of Governors of The Florida Bar and through an appropriate opinion to be published in the Southern Reporter based on the allegations of the Bar’s complaint and the Conditional Plea.

The Motion for Approval of Conditional Guilty Plea is granted, and Respondent, John V. Baum, is hereby suspended from the practice of law in this state for a period of two years, at the expiration of which time he may be eligible for reinstatement upon proof of rehabilitation. This period of suspension shall be deemed to have commenced on February 10, 1978.

Costs in the amount of $144.20 are hereby taxed against the Respondent.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON and HATCHETT, JJ., concur.

SUNDBERG and ALDERMAN, JJ., dissent.


text:
    THE FLORIDA BAR, Complainant, v. Lester S. KAFER, Respondent.
    No. 56200.
    Supreme Court of Florida.
    March 29, 1979.
    David G. McGunegle, Bar Counsel and Branch Staff Counsel, Orlando, and John A. Boggs, Asst. Staff Counsel, Tallahassee, of The Florida Bar, for complainant.
    No appearance for respondent.
   PER CURIAM.

This matter is before the Court on Motion for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On February 22, 1979, The Florida Bar filed its motion alleging:

1. After investigations by grievance committees in the Ninth Judicial Circuit, two Complaints were duly filed against the Respondent by The Florida Bar covering three separate cases. The Complaint in Case No. 09B77059 was filed on April 18, 1978. . . . The Complaint covering Cases 09C78044 and 09C78050 was filed on November 29, 1978. .
2. Two of the cases charge Respondent with accepting eases and cost monies and thereafter failing to perform while misrepresenting the status of the cases to the clients. The third case charges Respondent with misuse of trust funds for his own personal 'use, misrepresentation and failure to pay over the funds on demand of the client. When Respondent attempted to make payment of $1,103.00 to the clients by a check drawn on his trust account in September, 1977, it .was returned for insufficient funds. His trust account during this period did not exceed $381.00. Restitution in the amount of $1,103.00 has been made to the clients at this time.
3. Prior to a final hearing on all Complaints, the Respondent submitted a Conditional Guilty Plea to the Complaints through counsel on January 29, 1979.
4. The Executive Committee of The Florida Bar has approved acceptance of Respondent’s Conditional Plea and recommends it to this Court as final disposition of the cases. The Plea calls for Respondent to be suspended for a period of one year, and requires proof of rehabilitation prior to any subsequent reinstatement. Respondent also agrees to make restitution to the complainants in Case No. 09C78044 in the amount of $1,103.00 which has been completed and to return unexpended cost monies received in the other two cases. This has been done in Case No. 09B77059. Respondent also agrees to pay the costs of these proceedings prior to any reinstatement. Those costs now total $179.00.

The Motion for Approval of Conditional Guilty Plea is granted, and the Court accepts the Respondent’s conditional guilty plea to the bar’s complaints for a consent judgment in exchange for a one-year suspension, payment of costs in the amount of $179.00, and proof of refund of any unex-pended cost monies in Case No. 09C78050, along with proof of rehabilitation required prior to any subsequent reinstatement and the publishing in the Southern Reporter of an appropriate opinion based on the bar’s complaints and the conditional plea; and it is further

ORDERED that this suspension shall be effective April 30, 1979, thereby giving Respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients; and it is further

ORDERED that Respondent shall not accept any new business.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. T. David BURNS, Respondent.
    No. 56261.
    Supreme Court of Florida.
    March 29, 1979.
    Kenneth L. Connor, Bar Counsel, Lake Wales, David G. McGunegle, Branch Staff Counsel, Orlando, and John A. Boggs, Asst. Staff Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

This matter is before the Court on Motion for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On February 28, 1979, the Florida Bar filed its Motion alleging:

1. Subsequent to a finding of probable cause, The Florida Bar filed its complaint covering these cases on June 23, 1978.
2. Prior to the final hearing which was ultimately scheduled for December 11, 1978, the Respondent submitted a Conditional Guilty Plea for Consent Judgment to Count III which is Case 1077030 and Count IV which is 1078004 of the Bar’s complaint. Count I which is Case 1077013 and Count II which is 1077016 were recommended for dismissal after pre-trial investigation. .
3. At their January 1978 meeting, the Board of Governors of The Florida Bar approved acceptance of Respondent’s Conditional Plea and recommends it to this court as final disposition of the cases. The plea calls for a public reprimand based on Counts III and IV of the complaint only to be published as an opinion in the Southern Reporter and payment of costs totaling $323.00.
4. If this Conditional Plea is an acceptable disposition of these cases to the court, The Florida Bar respectfully suggests that the opinion to be published in the Southern Reporter based on Counts III and IV of the complaint can be predicated on the following:
A. In case 1070030 the Respondent was hired by Mr. Sing Wall in late 1976 or early 1977 to represent a relative in connection with a criminal conviction. Mr. Wall agreed to pay the Respondent $1,500.00 and gave him a preliminary payment of $750.00. Subsequent to that time Mr. Wall called the Respondent numerous times at his office without success and also could not reach him at his home. Throughout this period of time, the Respondent did little or nothing to earn the fee which he had been paid by Mr. Wall. During the period of his representation paid for by Mr. Wall the Respondent was not a member in good standing of The Florida Bar as a result of his failure to pay annual dues and deemed unable to practice pursuant to Paragraph 2 of Article VIII of the Integration Rule of The Florida Bar. Respondent’s foregoing actions violated Disciplinary Rules 1— 102(A)(4), 1 — 102(A)(5), 1-102(A)(6), 2-106(A), 6-101(A)(3), 7 — 101(A)(1) and 7-101(A)(2) of The Florida Bar’s Code of Professional Responsibility.
B. In case 1078004, the Respondent was retained and later filed his notice of appearance on July 8,1977 as attorney of record in the case of the State v. Glenn Edward Lewis, Case No. 77—1080, in Polk County, Florida. He also filed a written plea of not guilty. Mr. Lewis paid the Respondent $750.00 to defend him. Prior to that time the defendant had been represented by a public defender. Subsequent to his notice of appearance, an order was entered and mailed to the Respondent and Mr. Lewis advising them that the pre-trial conference previously set for August 15,1977 had been changed in time from 2:00 p. m. to 9:30 a. m. on the same day. The Respondent did not appear either at 9:30 a. m. or at 2:00 p. m. although the defendant did appear in accordance with the order. For a period of some three (3) weeks prior to this pre-trial conference he had attempted unsuccessfully to contact the Respondent. During this period of purported representation, the Respondent was not a member in good standing of The Florida Bar by reason of his failure to pay annual dues and deemed unable to practice pursuant to Section [Paragraph] 2 of Article VIII of the Integration Rule of The Florida Bar. By reason of the foregoing, the Respondent’s conduct violated Disciplinary Rules 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 2-106(A), 6-101(A)(3), 7-101(A)(1) and 7-101(A)(2) of The Florida Bar’s Code of Professional Responsibility.

The Motion for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline is approved, and Respondent, T. David Burns, is hereby disciplined by public reprimand based on Counts III and IV only of the Bar’s complaint to be published in the Southern Reporter.

Costs in the amount of $323.00 are hereby taxed against the Respondent.

It is so ordered.

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


text:
    Robert McCLURE and Constance N. McClure, Appellants, v. Leigh SHEPARD, Appellee.
    No. HH-75.
    District Court of Appeal of Florida, First District.
    June 6, 1978.
    Larry L. Bryan, Jacksonville, for appellants.
    Gerald Sohn and George L. Hudspeth, Jacksonville, for appellee.
   PER CURIAM.

Appellants are appealing two orders, an order denying a motion for rehearing, continuance of sale, and clarification of a final judgment in a foreclosure action, and a second order entering an injunction against appellants and denying appellants’ motion to disqualify the judge. They raise as error the trial judge’s failure to disqualify himself and the foreclosure on certain property which was not given as security for the mortgage and was not described in the final judgment of foreclosure.

In their first point on appeal, appellants allege the trial judge made several improper comments at a hearing evincing a bias or prejudice against them. The appellee denies the alleged statements were made. The record on appeal contains no transcript of that hearing from which this court can determine the truth or falsity of appellants’ allegations.

Similarly, appellants’ second point on appeal pertains to the contents of the mortgage and the final judgment, neither of which was made a part of the record on appeal.

It is axiomatic that the burden is on the appellants to supply this court with a sufficient record so that it may consider the points urged. Appellants have completely failed to supply an adequate record for this court’s consideration.

Accordingly, the orders appealed from are affirmed and appellee’s motion for attorney’s fees on appeal is granted.

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


author: PER CURIAM. SMITH, Judge,

text:
    Lee MALONEY, Appellant, v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, Appellee.
    No. II-252.
    District Court of Appeal of Florida, First District.
    July 6, 1978.
    Terrill J. LaRue, of Stern, LaRue & Wells, Daytona Beach, for appellant.
    Lester A. Lewis, of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach for appellee.
   PER CURIAM.

AFFIRMED.

BOYER, Acting C. J., and BOOTH, J., concur.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

Appellant, a shopper in the A & P, was knocked down and injured when a shoplifter ran into her in an effort to elude A & P employees in a rather extended chase up and down the aisles. The trial court entered summary judgment for A & P. Deposition testimony established that there were thirty to fifty shoplifting attempts per day at this store, yet A & P employees were given no instructions on how to deal with shoplifters, whether and to what extent shoplifters should be chased, and how to warn or otherwise avoid, injury to unaware customers in the path of any chase. An A & P employee, observing the chase from an office, had ready access to the store microphone and loudspeaker system.

I do not think A & P demonstrated its nonliability as a matter of law. See Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977). A jury should decide whether A & P failed to act with reasonable care to protect its customers from the consequences of chasing shoplifters around the store. A & P surely is not an insurer of its customers’ safety, but the foreseeable consequences of dealing with the shoplifting epidemic in this way required A & P to use reasonable care. Graham v. Great Atlantic & Pacific Tea Co., Inc., 240 So.2d 157 (Fla. 4th DCA 1970); Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969); Nance v. Ball, 134 So.2d 35 (Fla. 2d DCA 1961); Walker v. Feltman, 111 So.2d 76 (Fla. 3d DCA 1959). Given that such a duty exists, a jury should decide whether the care used was reasonable under the circumstances.

I would reverse the summary judgment.


author: ERVIN, Judge.

text:
    SNEAD CONSTRUCTION CORP., a Florida Corporation and American Employers’ Insurance Company, a Massachusetts Corporation, Appellants, v. Sidney LANGERMAN, etc., et al., Appellees.
    Nos. GG-199, HH-395.
    District Court of Appeal of Florida, First District.
    July 12, 1978.
    Rehearings Denied Sept. 7, 1978.

      S. LaRue Williams of Kinsey, Vincent, Pyle & Williams, Daytona Beach, for appellants.
    Arthur H. Gehris, III of Elliott, Tindell & Gehris, Daytona Beach, Stephen B. Raku-sin, Gainesville, for appellees.
   ERVIN, Judge.

Appellees, partners in Avanti Construction, sub-contracted with appellant Snead Construction Company to furnish materials and labor in the construction of two hotels in Daytona Beach. Appellant American Employers’ Insurance Company was the surety on Snead’s performance and payment bond. The sub-contract provided that Avanti would be paid monthly, based on a percentage of the completion charge; however, before either project was completed, in February, 1974, Snead withdrew, and Avanti followed. This suit was for sums still owed Avanti by Snead.

Avanti’s evidence was that one hotel was 94% complete and the other 64% complete. Snead’s evidence on the percentage of contract completion differed: 85% and 35% completion. Snead also presented testimony on the actual cost of materials and labor Avanti furnished. The trial judge found Avanti ■ entitled to a total. of $67,603.26, including interest of $10,842.26, computed at 6% from May, 1974. Appellants filed an appeal from that judgment in this court. Thereafter, hearings were held on Avanti’s request for attorney’s fees, and the trial judge granted “reasonable attorney’s fees,” in accordance with Section 713.29, Florida Statutes (1977), over objections of appellants. Appellants’ filed an interlocutory appeal from that order, and we consolidated the cases.

Appellants argue first that the trial court should not have entered judgment for Avanti because it failed to prove the actual value of labor and materials it furnished, citing Golub v. De Linardy Flooring Co., 44 So.2d 75 (Fla.1950). In that case a special master found that 80% of the work contracted for had been completed and awarded plaintiff contractor 80% of the contract price. The Florida Supreme Court reversed because the plaintiff had only shown that his costs generally were 80% of the contract price and that he charged 80% of the contract at this stage of completion. The court stated that he should have “submitted proof as to the value of all labor, services . and materials actually furnished . . .” Golub, supra, at 76. Here, there was testimony on the percentage of completion, substantial testimony that the work shown on the percentage of completion charts was actually done, as well as testimony regarding the actual costs of materials and labor. Also, appellants never objected to the ap-pellees’ use of percentage-of-completion figures during the three days of testimony. Only during final arguments did appellants mention that the relevant measure of damages might be other than that the appellees had sought to prove. Had they actually objected in a timely fashion to the testimony now complained of, and had they been sustained, appellees would have had time to submit other proof. There is no ruling on this question by the trial court anywhere in the record. Appellants have waived this point on appeal. See 2 Fla.Jur. Appeals § 66.

Next, relying on Gerrits v. Astor Electrical Services, 328 So.2d 522 (Fla. 3d DCA 1976), appellants argue their obligation to pay Avanti was conditioned on payment to Snead by the owner. In Gerrits the district court reversed a summary judgment in favor of a sub-contractor and remanded the case for a jury to determine whether the parties intended to shift the risk of non-payment to the subcontractor. The disputed contract provision stated that payments to the sub-contractor were to be made “at such times as the General Contractor receives it from the Owner.” Id. at 523. More recently, the Florida Supreme Court in Peacock Construction Company v. Modern Air Conditioning, 353 So.2d 840 (Fla.1977), held that interpretation of contracts between sub-contractors and contractors was a matter of law:

The reason is that the relationship between the parties is a common one and usually their intent will not differ from transaction to transaction, although it may be differently expressed. Id. at 842.

In Peacock the trial court had entered summary judgment for the sub-contractor against the contractor and its surety. The contractor appealed, arguing that the parties’ contract made payment by the owner to the contractor a condition precedent to its duty to pay the sub-contractor. There, the clause was that final payment to the sub-contractor would be made

[wjithin 30 days after the completion of the work included in this subcontract, written acceptance by the architect and full payment therefor by the owner. Id. at 841.

The Florida Supreme Court found the provision was ambiguous. It held the clause could be construed as setting a condition precedent or as fixing a reasonable time for payment. The court stated that the intent in most sub-contracts is that risk of nonpayment does not fall on the sub-contractor and construed the provision as only setting a reasonable time for payment. If parties do intend to shift the risk of non-payment to the sub-contractor, “the contract must unambiguously express that intention;” further, “the burden of clear expression is on the general contractor.” Id. at 843. The provisions in this case are ambiguous and must be construed in favor of the subcontractor. The contracts do not state that the contractor will not be obligated to pay the sub-contractor if the former is not paid by the owner. The language is that no payments shall be made “until” the contractor is paid by the owner. The contracts unambiguously state that the mutual agreement of the parties is “that the sum to be paid by the contractor to the sub-contractor for said work and materials shall be . . ” as stated in each contract. Neither is the sub-contractor’s payment to be made only out of sums the contractor receives from the owner. In the absence of a clear expression that the contractor would be free of any obligation to pay under the sub-contract if he were not paid by the owner, this provision cannot be held to shift the burden of non-payment to the sub-contractor, and it was entitled to payment within a reasonable time.

Appellant also contests the trial court’s award of interest at 6% from May of 1974. The general rule in ex contractu actions is that the person to whom a debt is due is entitled to interest on the debt from its due date. 18A Fla.Jur. Interest, § 6. There are no special, circumstances here to justify deviation from that rule.

Appellant relies on Sharpe v. Ceco Corporation, 242 So.2d 464 (Fla. 3d DCA 1970) and Gerber Groves, Inc. v. Belle Glade Agricultural Contractors, 212 So.2d 669 (Fla. 2d DCA 1968). In Gerber, a sub-contractor/plaintiff first sought payment from the prime contractor with whom he had a contract. When the prime contractor was unable to pay, the sub-contractor sued Gerber Groves, which had sold the land improved under the sub-contract in dispute and which was obligated to make the improvements under the sales contracts. The trial court found equitable liens in favor of the sub-contractor. Denying prejudgment interest on cross-appeal, the district court said:

[The sub-contractor] at the outset contracted with and looked to [the prime contractor] for its money. Only after [the prime contractor] “went broke” . did [the sub-contractor] make claim upon Gerber, who had a litigable position on which to deny liability. Gerber, at 672.

In Sharpe v. Ceco Corporation, 242 So.2d 464 (Fla. 3d DCA 1970), a sub-contractor sought to foreclose a mechanic’s lien against the owner and cross-claimed against the general contractor on the contract. The general contractor and the owner counterclaimed for costs of correcting defective work. The sub-contractor was awarded an affirmative judgment after set-off of $20,-000 for the counter-claim. The district court affirmed denial of attorney’s fees on authority of Gerber Groves, supra, with no further explanation. The facts in this case are not comparable to Gerber, where there was a reasonable dispute over the defendant’s liability to pay anything, since Gerber neither owned the land or was in privity with the sub-contractor. Ceco, appellant argues, is applicable because appellant also counter-claimed. However, appellant’s counter-claims were not granted. This case is most like Jacquin-Florida Distilling Co. v. Reynolds, Smith and Hills, 319 So.2d 604 (Fla. 1st DCA 1975), in which this court awarded the plaintiff/appellee pre-judgment interest after a contract dispute over the distillery company’s liability to pay the architectural firm for engineering services according to the parties’ contract. The architects were entitled to “interest on the debt as a result of [the distillery’s] failure to pay when due, irrespective of [the distillery’s] good faith in contesting the claim.” Id. at 608. Snead has contested Avanti’s claim in good faith; but, all points being in favor of Avanti, the sum sued for was due within a reasonable time after Snead stopped construction in February, 1974. The trial judge correctly assessed interest from May, 1974.

The trial judge’s order on the appel-lees’ motion for attorney’s fees stated that they were entitled to “reasonable attorney’s fees pursuant to Fla.Stat. § 713.29.” Appellants contend that attorney’s fees should have been assessed according to Sections 627.756 and 627.428, Florida Statutes (1977). Section 713.29, Florida Statutes (1977), provides that in actions to enforce mechanic’s liens under Chapter 713, the prevailing party is entitled to “reasonable attorney’s fees.” Section 627.428 provides reasonable attorney’s fees to an insured who prevails in a suit against an insurer. Section 627.-756(2) applies the attorney’s fees provision in 627.428 to suits by “owners, subcontractors, laborers and material men . . .” against surety insurers on performance or payment bonds. However, that section states further that “the amount . shall not be more than 12.5% of the amount which the judgment or decree awards such plaintiff under the bond (exclusive of the costs of suit and attorney’s fees or compensation) . . . .”

We agree with appellants that Section 627.756(2) is applicable. Section 624.13 of the Insurance Code states that the code’s provisions regarding types of insurance, insurers or as to “a particular matter” prevail over all other such provisions. Sections 627.428 and 627.756 are within the insurance code, and Section 627.756 deals specifically with suits on performance or payment bonds against surety insurers to construction contracts. By mandate of Section 624.-13, then, attorney’s fees in suits by sub-contractors like appellee against a surety on a performance or payment bond are governed by the specific provisions in 627.756.

Appellees urge that Midway Shopping Mall, Inc. v. Corky Corp., 257 So.2d 905 (Fla. 3d DCA 1972), and Traveler’s Indemnity Company v. Howell and King, Inc., 336 So.2d 1 (Fla. 4th DCA 1976) are controlling. In both of those cases it was held that Section 713.29 governed attorney’s fee awards in suits by sub-contractors to enforce liens against a general contractor and its surety because the Mechanic’s Lien Act was “to be construed liberally to afford laborers and materialmen the greatest protection possible with justice and equity.” Midway Shopping Mall, Inc., supra, 257 So.2d at 907. Further, language in the surety agreements, that claimants could sue “for such . . . sums as may be justly due,” Traveler’s Indemnity, supra, 336 So.2d at 3, or obligating the surety to pay “for all labor and material used or reasonably required for use in the performance of the contract, . . . ” Midway Shopping Mall, supra, 257 So.2d at 908, was said to include the reasonable attorney’s fees Section 713.-29 provides for.

Here, the parties’ contract did not cause the provisions in Section 713.29 to prevail over those in Section 627.756. Language in the surety agreement that claimant could sue on the bond “for all sums justly due . . .’’is not inconsistent with Section 627.756(2). The legislature has simply further defined what attorney’s fees are due such claimants. Nor is Section 627.756(2) inconsistent with the general rule that the mechanic’s lien law is to be liberally construed, given its narrow, specific language.

Case No. GG-199 is remanded for an award of attorney’s fees consistent with this opinion. AFFIRMED in part; REVERSED in part.

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

      . The contract provides: “No payment for work under this agreement shall be made to the Sub-Contractor until the Owner shall have paid the contractor therefor.”

      . See also Aetna Casualty and Surety Co. v. Warren Brothers Co., etc., 355 So.2d 785 (Fla.1978).

      . See Frank v. Butte and Boulder Mining and Lumber Co., 48 Mont. 83, 135 P. 904 (1913) (Contract that repayment of loan was to be out of “first earnings of . . . business” did not make the debtor generally liable; Campisano v. Phillips, 26 Ariz.App. 174, 547 P.2d 26 (Ariz.App.1976) (The contract between architect and owner of apartments stated that payment was to be made “out of construction loan draws” and owner was not obligated to pay from any other fund.) Distinguished from Mig-not v. Parkhill, 237 Or. 450, 391 P.2d 755 (1964).

      .See Mignot v. Parkhill, 237 Or. 450, 391 P.2d 755 (1964), cited as part of the majority view the Florida Supreme Court would follow in Peacock Construction v. Modem Air Conditioning, Inc., 353 So.2d 840, 841, n. 6 (Fla.1977). The disputed contract provision there stated: “[T]he Contractor shall not be obligated to pay Subcontractor for any of the work until such time as Contractor himself receives the money from Bate Lumber Co.” Mignot, supra, 237 Or. 450, 391 P.2d at 757.


author: SMITH, Acting Chief Judge.

text:
    STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. Samuel BARR, M.D., et al., Respondents.
    No. JJ-199.
    District Court of Appeal of Florida, First District.
    July 18, 1978.
    Rehearing Denied June 29, 1978.
    George L. Waas and Charles T. Collett, Tallahassee, for petitioner.
    Jerry G. Traynham of Patterson & Traynham, Tallahassee, for respondents.
   ON MOTION FOR TAXATION OF COSTS

SMITH, Acting Chief Judge.

The Department of Health and Rehabilitative Services, which prevailed as the result of our decision announced by opinion filed May 18, 1978, has filed a motion for taxation of eosts in the amount of $50, representing the filing fee paid by the Department upon commencement of this proceeding here. Rule 9.400(a)(1), Fla.R. App.P., provides for the taxation of costs to the prevailing party, including the filing fee, and its provisions are applicable to proceedings such as this, in which we reviewed a non-final order of the Division of Administrative Hearings, Department of Administration, DOAH is a “tribunal” within the meaning and application of the 1978 Rules of Appellate Procedure. Rule 9.020(d). Costs are taxable by the lower tribunal on motion served within 30 days after issuance of our mandate, and an order of the lower tribunal taxing costs may be enforced by appropriate proceedings in “the circuit court where the subject matter of the enforcement is located.” Section 120.69(1), Florida Statutes (1977). The Department’s motion is therefore inappropriately filed in this court, and is DENIED.

ERVIN and BOOTH, JJ., concur.