author: PER CURIAM. SMITH, Judge,

text:
    I. Irving DAVIDSON, Appellant, v. Hyman GREEN, Irving Green, National Development Corporation, a Delaware Corporation, Honeymoon Isle Development Corporation, a dissolved Florida Corporation, the Trustees of the Central States Southeast and Southwest Areas Pension Fund, an unincorporated association, Reubin O’D. Askew, Governor, Jesse McCrary, Secretary of State, Robert L. Shevin, Attorney General, Gerald Lewis, Comptroller, Ralph Turlington, Commissioner of Education, Doyle Conner, Commissioner of Agriculture, William Gunter, Treasurer, as and constituting the Board of Natural Resources, and as and constituting Trustees of the State of Florida Land Acquisition Trust Fund and Internal Improvement Trust Fund, Harmon Shields, Director of the State of Florida Department of Natural Resources, Kenneth C. Levine, Trustee, Leonard L. Bursten, Trustee, Appellees.
    No. LL-467.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1979.
    Rehearing Denied March 9, 1979.
    Daniel S. Dearing, Tallahassee, for appellant.
    John A. Madigan, Jr., of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, and Stephen C. Chumbris, of Harrison, Green, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellees Hyman Green, Irving Green, Honeymoon Isle Development Corp., National Development Corp., and Trustees of the Central States Southeast and Southwest Areas Pension Fund.
    Jack W. Pierce, Tallahassee, for Reubin O’D. Askew, Governor, and Members Constituting Board of Natural Resources and Trustees of the State of Florida Land Acquisition Trust Fund and Trustees of the Internal Improvement Trust Fund and Harmon Shields. Andrew C. Hall of Storace, Hall and Hauser, Miami, for appellees.
   PER CURIAM.

Affirmed.

MILLS, Acting C. J., and McDONALD, PARKER LEE, Associate Judge, concur.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

The court affirms a venue order of the Circuit Court of Leon County, transferring this cause to the Circuit Court of Pinellas County on the ground that the action is local in nature because it affects title to Pinellas County land. I conceive that venue was properly laid in Leon County, where certain of the named defendants reside, and that the hoary “local action” rule does not in this case overcome plaintiff’s statutory choice of venue. I therefore respectfully dissent.

All defendants except Irving Green and Leonard Bursten, residents of Dade County, and the state officials, residents in Leon, are nonresidents of Florida. The complaint alleges that defendants Hyman and Irving Green conspired to and did defraud plaintiff of his beneficial interest in the stock of a Florida corporation, now dissolved, called Honeymoon Isle Development Corp.; that plaintiff had a beneficial interest, memorialized by a trust agreement exhibited, in defendant Bursten’s shares of the corporate stock; that the defendants Hyman and Irving Green persuaded Bursten to surrender his stock certificate and thereby possessed all of the outstanding stock; that Hyman Green then caused corporate assets, consisting of Pinellas County land, to be transferred to National Development Corporation, and then caused its transfer to Hyman Green individually, and caused the dissolution of Honeymoon Isle Development Corp.; that Hyman Green then assured plaintiff that the state had agreed to purchase the Pinellas County land, and that plaintiff would receive his pro-rata share of the proceeds of sale; that Hyman Green then effected a sale of the land to the defendants state officials, and fraudulently represented that his was the only valid interest in the land; and that Hyman Green, though he has received more than $16,000,000 of the purchase price, refuses to pay over plaintiff’s asserted share, and refuses also to convey the plaintiff a proportionate part of the land yet to be transferred. Plaintiff prays for a declaration of his equitable ownership in “Honeymoon Isle Development Corp.” and for an accounting of its assets and their disposition; for a constructive trust imposed on all assets fraudulently transferred by Hyman Green to himself, including monies paid by the state of Florida. Appellant Davidson filed this three-count complaint in the Circuit Court of Leon County, predicating his choice of venue on the residence there of the defendant state officials, whose joinder as parties defendant was not contested in the trial court or here.

Since 1829 the legislature has granted plaintiffs a choice, when suing resident defendants, between the forum “where the defendant resides,” or “where the cause of action accrued,” or “where the property in litigation is.” Act of November 21, 1829, Section 7; as amended, Section 47.011, Florida Statutes (1977). Notwithstanding the phraseology of the venue statute, seemingly abrogating the common law rule that “all actions were local in character” and “could be brought only in the county where the cause of action arose,” courts mindful of common law restrictions and of early-day territorial limitations on process continue to distinguish between actions in rem and those in personam and between actions transitory and “local”. That distinction maintains some vitality today. E. g., Hendry Corp. v. State Board of Trustees of the Internal Improvement Trust Fund, 313 So.2d 453 (Fla. 2d DCA 1975); see also Carroll v. Carroll, 322 So.2d 53, 54 (Fla. 1st DCA 1975). The commonly accepted distinction was as stated by the Supreme Court in 1932 as follows:

“An action was transitory where the transaction on which it was founded might have taken place anywhere and was considered local where the transaction could only have happened or been consummated in the place where it was made. [Board of Pub. Instruction, supra, 111 Fla. at 12, 143 So. at 741.]

The local action rule was predicated on the forum court’s power to act in respect to the subject matter in litigation, buttressed by considerations of convenience. Thus in 1855, the Supreme Court said, in deciding an action of trespass on lands which debat-ably lay either in Georgia or Florida,

For this action is strictly local in its character, and may not be brought out of the jurisdiction in which the alleged injury was committed. [McMillan v. Lacy, 6 Fla. 526, 530 (1855).]

The doctrinal necessity for the local action rule was stated in a later case contesting the power of a circuit judge to appoint a receiver of real property outside the circuit. State Board of Trustees of the Internal Improvement Fund v. Jacksonville, Pensacola and Mobile R. R. Co., 15 Fla. 201, 284 (1875):

This is a question of great importance, and in view of the conflict of jurisdiction between the second and fourth judicial circuit in this case, it should be settled. Under the constitution, this State is divided into seven judicial districts, and “the Circuit Courts in the several judicial circuits” are invested with general original jurisdiction in law and equity. There is no legislation which authorizes the appointment of a receiver of property which is property which is beyond the territorial limits of the circuits. Under these circumstances we can reach no other conclusion than that no such appointment can be made effectively; and that the Circuit Court, in all of its orders in this case, appointing a receiver of property beyond its limits, went beyond its authority. . . . It is a general principle of the common law that no writ or process can run or be executed beyond the territorial jurisdiction of the court out of which it issues; and independent of legislation, there can be no doubt that the Circuit Court of one circuit cannot through ist [sic] receiver take possession of property in another circuit.

Although the legislature in 1895 made summons, subpoenas and other process in civil actions “run throughout the state,” the power of courts to effectuate their process remained a continuing concern. In Lakeland Ideal Farm & Drainage Dist. v. Mitchell, 97 Fla. 890, 894, 122 So. 516, 518 (1929), the court sustained a demurrer to a bill of complaint praying in the Circuit Court of Polk County for damages and an injunction against continuing trespass allegedly committed on lands of the complainant in Hillsborough. The court stated:

Where ... as here, a single cause of action is presented, in which a present and continuing trespass upon real estate is the sole basis of the suit and a determination of ownership is actually or potentially involved as a major issue, and the gravamen of the action is injury to the freehold and to crops affixed to and growing upon the land, and the principal relief sought is to restrain the continuing acts of trespass which occasion that damage, the rule is otherwise. Such an action is necessarily local in its nature, and must be maintained in the county where the land lies, in the absence of a competent and applicable statutory provision to the contrary. Although the acts of trespass complained of are in the nature of personal acts, the court looks to the underlying major question involved in the case to determine whether the action is local or transitory in its nature.

The court in Lakeland recognized that the injunction sought would be in the nature of a decree in personam, but held that “it could be rendered only after a determination and adjudication, as a predicate for the decree of the title to lands in another jurisdiction.” 97 Fla. at 897-98, 122 So. at 519. Then the court expressed doubt over the chancellor’s power to enforce any in person-am injunction against the trespass:

A decree purely in personam would not be effective under the facts of this case, because the land lies beyond the jurisdiction of the court and the actual commission of an enjoined trespass would likewise lie beyond the reach of its process for contempt: The circuit court of Polk county would therefore be unable to make its injunction effective. [97 Fla. at 898, 122 So. at 519.]

It would seem that the 1895 legislation empowering process to “run throughout the state,” and other legislation permitting writs of attachment to be issued in one county against real property in another, and the common realization that in marriage dissolution proceedings the chancellor has power to enter in personam orders affecting distant property, would by now have removed the historical antecedents of the “local action” rule, and would apply that rule only in cases, such as mortgage foreclosures, in which there is no significant issue to be decided except the enforcement of rights directly upon land. See Largo Land Co. v. Skipper, 98 Fla. 541, 123 So. 915 (1929). See also Georgia Cas. Co. v. O’Donnell, 109 Fla. 290, 292, 147 So. 267, 268 (1933).

There is in this case no appearance of inconvenience to the parties or witnesses in plaintiff Davidson’s choice of Leon County, rather than Pinellas County, as the forum for his action. The trial court’s order was not for a change of venue “[f]or the convenience of the parties or witnesses or in the interest of justice . . .” Section 47.-122, Florida Statutes (1977); rather, the order was predicated directly upon defendants’ assertion that venue could not properly be laid in Leon, where certain of the defendants reside, but only in Pinellas, where lies the land allegedly diverted by other defendants. The issue before the circuit court and here is therefore precisely the same as though plaintiff had chosen to sue the defendants in Dade County, where defendants Irving Green and Leonard Bur-sten reside. To the extent that considerations of convenience may underlie the local action rule, no strong conveniences in the disposition of this action are more readily available in Pinellas than in Leon.

I conceive that this is no case for expanding the local action rule; that here there is no lack of power in the Leon County Circuit Court to effectuate any judgment for damages or to impose a constructive thrust upon the legal title of land held by the defendant Hyman Green; that the legal title to the Pinellas County land is not to be determined; that no relief is requested directly against the land, as distinguished from its titleholder; and that the action should be held wholly transitory and maintainable where any resident defendant resides. In short, I believe this is a case for application of the rules stated but found not applicable in Lakeland Ideal, 97 Fla. at 890, 895, 122 So. 516, 518, in which the Supreme Court quoted approvingly from another decision, saying:

From a very early period, courts of equity having jurisdiction of the person of a party have exercised the power to compel him to perform a contract, execute a trust, or undo the effects of a fraud, notwithstanding it may relate to or incidentally affect the title to land in another jurisdiction. The doctrine is thoroughly well established within this limitation, that the principle question involved must be one of contract, trust, or fraud, raising up a duty which a person within the power of the court may be compelled to perform, although the act when performed may operate to affect, and even to pass, the title to land outside the territorial jurisdiction of the Court.

The Court in deciding Lakeland Ideal drew a distinction between local and transitory actions which I think governs this case:

If it should be the defense herein that complainant does not own the land in question, or that the defendant and not complainant owns it, or that defendants entered upon the land as of right, then, . the question of title must first be determined . . . . In that event the circuit court of Polk county would be in the anomalous and unjustifiable position of decreeing upon the title to lands in Hillsborough county as a major issue in the suit. Moreover, although the acts sought to be restrained are in the nature of personal acts, the nature of the act is incidental and subordinate to the major purpose of the suit and the thing chiefly sought, which is to prevent continuing injury to the freehold and to the substance of complainant’s estate, as well as to crops affixed to and growing upon the land. 97 Fla. at 896-97, 122 So. at 519.

In that case, “the question of title [was], at least potentially, more than an incidental factor. Complainant’s right to relief rest[ed] primarily upon his ownership of the land, . . . .” 97 Fla. at 896, 122 So. at 519. Moreover, the plaintiff in Lakeland Ideal “[did] not seek ... to enforce a transitory and personal contract or duty with respect thereto involving only personal or transitory liability.” 97 Fla. at 897, 122 So. at 519 (Emphasis added). In the case before us, however, plaintiff Davidson does seek such a remedy, for the gravamen of his suit is for a constructive trust to undo a fraud. It is only an incidental aspect of Davidson’s suit that the object of the trust, the assets of the now-dissolved Honeymoon Isle Development Corp., may be a parcel of land. Thus, although the remedy sought may result in ultimate recognition of a beneficial interest in land, the essence of this litigation is a question of fraud. This suit sought to vindicate a shareholder’s asserted rights as against corporate manipulation which “might have occurred anywhere.” Board of Public Instruction, supra, 111 Fla. at 12, 143 So. at 741. Had the alleged fraud been intercepted in process, before the corporation alienated its assets and was itself dissolved, the venue of an action to prevent the fraud would not be a “local action” simply because the asset to be preserved was Pinellas County land. I find it impossible to conceive that, because the alleged fraud progressed further, the suit has been transformed to one against the land.

In summary, a determination of ownership of real property is not the major issue in this case, but at most only a subsidiary one. Thus the common-law local action rule should have no application here. Rather, the action should be allowed to remain where the complaint was filed and where the defendant state officials reside. Section 47.011, Florida Statutes (1977).

      . Section 47.011, Florida Statutes (1977), provides:
      “Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.”

      . Board of Public Instruction v. First Nat’l Bank of Gainesville, 111 Fla. 4, 12, 143 So. 738, 741 (1932). Kooman, Florida Chancery Pleading and Practice, § 29, p. 53. The ancient origins of the local action rule, and its tendency to persist even when the rationale for its existence might lack vitality, is discussed in 67 Corpus Juris § 8 et seq. at p. 13-14: “Long after the [jurors] were regularly summoned to hear the testimony of witnesses in court, [as opposed to serving as a body of witnesses or recognitors] our legal theory clung to the idea that jurors must come from the immediate neighborhood of the fact in issue.”

      .The same rule is set forth in Crandall, A Treatise on the Practice in Actions at Law, § 15(b), p. 23 citing Livingston v. Jefferson, 1 Brock. 203, Fed.Cas.No. 8411.

      .Chapter 4397, Section 1, Florida Laws (1895), as amended, Section 48.011, Florida Statutes (1977):
      Summons, subpoenas and other process in civil actions run throughout the state. All process except subpoenas shall be directed to all and singular the sheriffs of the state.

      . Chapter 3721, Section 2, Florida Laws (1887), as amended, Section 76.16, Florida Statutes (1978).

      . See Carroll v. Carroll, supra, 322 So.2d at 54, note 1, and cases cited.

      . The court there held:
      A suit to remove a cloud upon the title to the land is in the nature of a proceeding in rem, or . quasi in rem, and should be brought in the county where the land lies.

      . The court held in Georgia Cas. Co.:

      The circuit court in this state, under our Constitution and laws, cannot by its officers take possession of property beyond its territorial limits.
      A proceeding in rem or in the nature of a proceeding in rem should be brought in the county where the land lies.
      A suit to foreclose a mortgage is to a certain extent and for certain purposes a proceeding in rem, since it is primarily directed against the mortgaged property, but it is more accurately termed “quasi in rem.” (Citations omitted.)

      . See Hendry Corp. v. State Bd. of Trustees of the Internal Improvement Trust Fund, supra, 313 So.2d at 453. There the trial court denied defendant’s motion for a change of venue directed to plaintiffs original complaint, seeking in Hillsborough County damages and injunctive relief for trespass on land in Manatee County. Denying the motion for change of venue as of right, the trial court characterized the suit as “a transitory action for damages.” Plaintiff then filed an amended complaint alleging that his Manatee lands “are swamp and overflowed lands, not sovereign in character,” and seeking “to quiet title to said lands” as against defendant’s claims that the lands were “navigable and therefore sovereign in character.” 313 So.2d at 454. This change in plaintiffs suit was held by the District Court of Appeal, Second District, to bring the case under the control of the local action rule because of the issue of ownership and the convenience of “numerous witnesses” from Manatee County and the necessity for “a view of the property.” 313 So.2d at 454.


source: Caselaw Access Project

author: PEARSON, Judge.

license: Public Domain

text:
    Robert BLEEMER and Bleemer & Levine, Inc., Appellants, v. KEENAN MOTORS, INC., Appellee.
    No. 78-738.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Rehearing Denied March 16, 1979.

      Cypen & Nevins and Arnold Nevins, Miami Beach, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and John R. Kelso, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PEARSON, Judge.

The defendants Robert Bleemer and Bleemer & Levine, Inc., appeal a summary final judgment for $29,465.36, the balance of a purchase price for a Rolls Royce automobile. We hold that there is a genuine issue of material fact as to whether these defendants were the purchasers of the automobile and we reverse.

Bleemer & Levine, Inc., a Miami architectural firm, was retained by Howard Garfin-kle to render architectural and design services for a New Jersey project then being developed by Garfinkle. Instead of paying cash for the services, Garfinkle offered to pay for the services by purchasing a new Rolls Royce automobile for each of the parties. The agreement for this unusual payment for the services was accepted and partner Levine received his Rolls Royce without incident.

The Rolls Royce that was to be the property of Robert Bleemer is the subject of this case. Bleemer went to the Philadelphia showroom of Keenan Motors, Inc., selected the car he wanted and proceeded to complete the sale. While he was there, he orally explained that the car was being purchased for him by Howard Garfinkle. After telephone conversations with Garfin-kle’s office, a Mr. Kravetz, a Garfinkle employee, gave a check for $5,000 for the down payment on the automobile. The automobile was not delivered that day. Bleemer signed all the papers necessary for him to receive the automobile and all of these papers showed Bleemer and/or Bleemer & Levine, Inc., as the purchasers of the automobile. Later, the automobile was delivered to Bleemer in Miami, Florida, but before it was delivered, Keenan Motors received a check for the balance of the cost of the automobile. This check was in the amount of $23,290.00 and was made to the order of Keenan Motors by Mr. Garfinkle.

One of the strange circumstances of this case was that the check was not cashed. Over six months later, when it was presented to the bank, it turned out to be worthless. Thereafter, Mr. Garfinkle was declared a bankrupt. Several months later, the instant action for damages was brought for the balance due on the automobile, breach of contract, and interest on the balance due. Alternatively, the plaintiff sought equitable relief in the form of rescission of the contract and restoration of the automobile (together with reasonable compensation for use and depreciation) or for the balance remaining on the purchase price, plus interest, fees and costs. After the taking of depositions and the submission of affidavits, the trial court entered the summary final judgment which is the subject of this appeal. The judgment awards the plaintiff, Keenan Motors, Inc., the balance of the purchase price of the automobile from the firm of Bleemer & Levine, Inc.

First, it should be noted that the judgment clearly shows that the purchaser of the automobile was Bleemer & Levine, Inc., and not Robert Bleemer, individually. Therefore, Robert Bleemer himself is not a proper party to this appeal.

The question of law presented here is whether the defendants’ claim that Gar-finkle was the purchaser violates the parol evidence rule by seeking to show agreements which were merged into the contract of sale. Ordinarily, representations and negotiations which precede and accompany the making of contracts are presumed to have merged into the written contract. Financial Federal Savings and Loan Association of Dade County v. Continental Enterprises, Inc., 338 So.2d 907, 908 (Fla.3d DCA 1976). And see Jacksonville Paper Co. v. Smith & Winchester Mfg. Co., 147 Fla. 311, 2 So.2d 890, 892 (1941); and All-Dixie Insurance Agency, Inc. v. Moffatt, 212 So.2d 347, 350-351 (Fla.3d DCA 1968).

The defendants, on the other hand, urge that there are factors other than the oral testimony of the contents of the contract which in this instance would show that Garfinkle was the purchaser. We think that the governing principle is that the rule which prohibits the introduction of parol evidence to vary a written instrument has no application where the legal existence or binding force of the instrument is in question. White v. White, 183 Kan. 162, 326 P.2d 306, 311 (1958). And cf. Watson v. McGee, 348 So.2d 461, 464 (Ala.1977). We hold that the oral testimony concerning the facts and circumstances surrounding this sale are such that there is a reasonable inference that Bleemer & Levine, Inc., was not the purchaser. Accordingly, the summary judgment is reversed and the cause remanded.

Reversed and remanded.

BARKDULL, J., dissents.

      . (a) Keenan Motors, Inc., Purchase Order
      (b) Application for Certificate of Title and/or Vehicle Registration (State of Florida)
      (c) Importer’s and Manufacturer’s Statement of Origin to a Motor Vehicle
      (d) Invoice to Bleemer & Levine, Inc.
      (e) Warranty Acknowledgement


author: HENDRY, Judge.

text:
    Claboen NORRIS et ux., Appellants, v. CITY OF MIAMI and Florida Power & Light Company, Appellees.
    Nos. 77-2415, 77-2416.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Rehearing Denied March 16, 1979.

      Alldredge & Gray and James H. Gray, Jr., Miami, for appellants.
    George F. Knox, Jr., City Atty. and Clinton J. Pitts, Asst. City Atty., Steel, Hector & Davis and Norman A. Coll, Miami, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   HENDRY, Judge.

Appellants/plaintiffs take this consolidated appeal from a “summary final judgment” entered in favor of appellee/defend-ant Florida Power & Light Company, and from a “order granting summary final judgment” entered in favor of appellee/de-fendant City of Miami, in a negligence action.

Appellant Claboen Norris is an independent contractor in the business of cutting and trimming trees. Mr. Norris was hired by Eddie and Shirley Cohn to trim certain trees on their property. Ordinance No. 8301 of the City of Miami required that a permit be obtained from the City permitting the cutting and removal of their trees. Norris began to cut the trees on the Cohn property without the required permit. Shortly thereafter, an inspector from the City of Miami came by and ordered Norris to stop working. Shirley Cohn was informed by the inspector that a permit was needed to proceed with the work. On August 4, 1976, a permit was applied for and obtained by Shirley Cohn pursuant to the aforementioned ordinance and Norris completed the job.

Some time after Norris had completed the job authorized by the permit, Mr. Cohn employed Norris to cut the branches of a number of trees located on an adjacent City of Miami right of way. While the trunks of the trees were situated on the City’s property, certain branches overhung onto the Cohn property creating a hazard to a guesthouse structure thereon. Various power lines owned and maintained by Florida Power & Light Company, were located on the City of Miami’s right of way. In his deposition, Mr. Cohn testified that he had made repeated demands on both the City and Florida Power & Light to trim the trees prior to the date of the accident, August 11,1976. It was Cohn’s testimony that both appellees repeatedly neglected his demands to obviate the hazardous situation.

Pursuant to Mr. Cohn’s instructions, Norris proceeded onto the City of Miami’s property, climbing over a fence dividing the Cohn property from the right of way. As Norris inspected the trees to be cut, he observed Florida Power & Light’s overhead power lines. While severing one of the overhanging limbs from the tree trunks, Norris sustained an electric shock when one of the branches allegedly came into contact with a power line which Norris claims was camouflaged by foliage and tree growth.

Thereafter, appellant filed his complaint for damages against both Florida Power & Light and the City of Miami. As to the City, the following allegations of negligence were pled:

“9. At the abovementioned time and place the defendant, CITY OF MIAMI, was negligent in the following particulars:
“a) In creating and permitting to exist a dangerous and hazardous condition on its property, to wit: large trees growing up into the area of the aforesaid electrical power lines with the limbs of such trees overhanging the adjoining private property.
“b) In failing to take any steps whatsoever to correct the said hazardous condition when it knew or should have known through the exercise of reasonable care that such condition constituted an extreme danger of electrical shock to anyone in the vicinity.
“c) In failing to take any steps to correct the said condition after the abutting land owner had made repeated demands upon the defendant to do so prior to August 11, 1976.
“d) In failing to properly and adequately inspect its property to determine the existence of the said dangerous and hazardous condition.”

As to Florida Power & Light, appellant alleged the following:

“1. At the abovementioned time and place the defendant, FLORIDA POWER AND LIGHT COMPANY, INC., was negligent in the following particulars:
“a) In creating and permitting to exist a highly dangerous condition, to wit: electrical power lines running through and in such close proximity to large trees that same constituted a hazard to anyone in the vicinity.
“b) In failing to take any steps whatsoever to correct the said hazardous condition when it knew or should have known through the exercise of reasonable care that such condition constituted an extreme danger of electrical shock to anyone in the vicinity.
“c) In failing to take any steps to correct the said condition after the abutting land owner had made repeated demands upon the defendant to do so prior to August 11, 1976.
“d) In failing to properly and adequately inspect its electrical power lines to determine the existence of the said dangerous condition.”

Appellees answered the complaint by denying negligence and alleged affirmative defenses. After discovery was completed, motions for summary judgment were filed by appellees. Those motions were granted and judgments were entered in favor of appellees giving rise to this consolidated appeal.

After a careful review of the record we are of the opinion that summary final judgment was proper as to the City of Miami. Section 59-2 of the Miami City Code (in force at the time of the accident) provides as follows:

“Sec. 59-2. Permits - Required - To prune, plant or remove from public land. “It shall be unlawful for any person to trim or prune any tree, shrub or plant or to remove any tree, shrub or plant from any dedicated street, alley, highway, public right of way or easement, public land lying between property lines on either side of a public street, highway, alley, public parking strip, public street, sidewalk or divider, public median strip or planting strip or other land or public place owned by the city without first applying for and obtaining a permit from the director of public works or his authorized representative, with the approval of the city manager.”

Neither appellant nor his employers (the Cohns) sought or was issued a permit to cut the trees located on the City of Miami right of way. The record affirmatively demonstrates that appellant realized that a permit was necessary to cut trees on City of Miami property. Further, it appears that appellant was familiar with the procedure of the City in issuing its permit, i. e., first the City would inspect the tree to be trimmed in order to determine whether or not such trimming could be completed without damage to the tree itself and second, if upon examination, the City’s inspector discovered Florida Power & Light’s powerlines dangerously near the branches to be cut, he would contact the power company to either de-en-ergize the wires or have the power company cut the limbs off the tree. There does appear to be some doubt as to whether or not appellant was cognizant of the fact that the trees were located on City of Miami property; however, the record does reveal that appellant realized that the trees to be cut were on property other than the Cohns’.

Thus, by appellant’s failure to receive permission of the landowner (City of Miami) to enter upon the property and cut the trees (via a permit) and his awareness of the fact that the trees were not located on the Cohn property, appellant was clearly a trespasser as to the City of Miami. See Roberts v. Pacific Gas & Electric Co., 102 Cal.App. 422, 283 P. 353 (3d DCA 1929). As to the precarious status of the trespasser-appellant, the City owed no greater duty than to avoid wilful and wanton conduct toward him and, upon discovery of his presence, to warn him of known dangers not open to ordinary observation. Pedone v. Fontainebleau Corp., 322 So.2d 79 (Fla. 3d DCA 1975). The record, however, is completely devoid of any evidence to the effect that the City of Miami breached its duty to appellant. Therefore, summary final judgment, as a matter of law and fact, was proper as to the City of Miami.

Florida Power & Light Company likewise argues that appellant’s status as a trespasser on the City of Miami right of way precludes him from recovering against the power company in that the record does not demonstrate that Florida Power & Light Company breached any duty it owed to the trespassing appellant by acting in a wilful or wanton manner. It is our view, however, that while appellant occupied the status of a trespasser as to the City of Miami, that status and accompanying duty did not apply to Florida Power & Light Company.

In Florida Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911 (1938), the Florida Supreme Court, quoting with approval from 20 C.J. 350, opined as follows:

“ ‘The doctrine of nonliability to trespassers or licensees has been applied to relieve defendant of liability where the trespass or license was with respect to the property of a third person and not that of the defendant. But according to the apparent weight of authority that doctrine has no application to such class of cases, because conceding that plaintiff was a trespasser as to the owner, he was not a trespasser as to the defendant, and the defendant may be held liable for negligence in failing to exercise proper care and precaution to prevent injury, not only as to persons who had a right to be at the place where the injury occurred, but also to persons whom defendant should reasonably have anticipated might be present and exposed to danger at that place, as in the case of places to which children or other persons are accustomed to resort although without technical right to be at such places.’ ” Supra, at 182 So. 917.

Acknowledged by the Supreme Court in the Bridgeman decision, and apparently contradictory to it, is the earlier Supreme Court case of Key West Electric Co. v. Roberts, 81 Fla. 743, 89 So. 122 (1921), wherein a deceased minor’s status as a trespasser on the property of a third party precluded the minor’s estate from recovering against an allegedly negligent electric company which maintained power lines on the property. The apparent contradiction is explained, however, by the fact that in Bridgeman, unlike in Roberts, the trespasser could reasonably have been anticipated by the electric company to be on the third person’s property.

The Bridgeman rationale appears to be the majority view. See Annotation, 30 A.L. R.3d 777 (1970), Status Of Injured Adult As Trespasser On Land Not Owned By Electricity Supplier, As Affecting Its Liability For Injuries Inflicted Upon Him By Electric Wires It Maintains Thereon; Prosser, Law of Torts, 4th Ed. § 58 (1971). See also Allen v. Texas and Pacific Railway Company, 430 F.2d 982 (5th Cir. 1970), cert. den. 401 U.S. 910, 91 S.Ct. 872, 27 L.Ed.2d 808 (1971); Blackwell v. Alabama Power Company, 275 Ala. 123, 152 So.2d 670 (1963); Weber v. Southwestern Bell Telephone Company, 209 Kan. 273, 497 P.2d 118 (1972); Roberts v. Pacific Gas & Electric Co., supra.

Thus, it would appear sub judice, that as long as Florida Power & Light could have reasonably anticipated appellant’s presence on the City of Miami right of way, its duty to appellant-trespasser was as great a duty as must be exercised by an electric company to the general public. This duty has been expressed as a high degree of care for the safety of the public. Florida Power & Light Co. v. Bridgeman, supra. While this high degree of care expressed in Bridgeman does not raise an electric company to the level of an insurer against all possible accidents, Escambia County Electric Light & Power Co. v. Sutherland, 61 Fla. 167, 55 So. 83 (1911), it does demand that an electric company guard against occurrences which can reasonably be anticipated by the utmost foresight.

In Rice v. Florida Power & Light Company, 363 So.2d 834 (Fla. 3d DCA 1978), we affirmed a summary judgment in favor of Florida Power & Light Company in an action wherein the deceased was electrocuted when he flew a model airplane into an unobstructed overhead power line. In that opinion, we did state that had a clear view of the power lines not existed, or had the power company had actual knowledge that individuals were flying model airplanes near its power lines, then any question of the existence of a duty and breach of that duty would be for the resolution of the jury.

Based upon the record before us, resolving all facts and inferences against the moving party, we are of the opinion that genuine issues of material fact exist which preclude our affirmance of the summary final judgment entered in favor of Florida Power & Light Company. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Lescrynski v. Middlebrook, 260 So.2d 215 (Fla. 4th DCA 1972).

Some of the issues raised by appellant, through allegations in his complaint and by testimony through deposition, which require determination by a trier of fact are: (1) whether or not Florida Power & Light Company could have reasonably anticipated appellant’s presence on the City of Miami’s right of way and thus, owed appellant a high degree of care; (2) whether or not, assuming Florida Power & Light owed appellant a high degree of care, the power company breached its duty to appellant by allegedly neglecting to properly inspect its power lines resulting in a latently hazardous situation whereby foliage obstructed from view one of the power lines; and (3) whether or not, assuming a duty and breach thereof, appellant’s injuries were proximately caused by Florida Power & Light’s action and/or inaction. Rist v. Florida Power & Light Co., 254 So.2d 540 (Fla. 1971); Florida Power & Light Co. v. Bridgeman, supra; Simon v. Tampa Electric Company, 202 So.2d 209 (Fla. 2d DCA 1967).

Accordingly, while summary final judgment is affirmed as to the City of Miami, we must reverse the summary final judgment in favor of Florida Power & Light Co. and remand the cause for further proceedings consistent herewith.

Affirmed as to City of Miami; reversed and remanded as to Florida Power & Light Company.


author: STETTIN, HERBERT, Associate Judge.

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, et al., Appellants, v. Patricia LEWIS, Appellee.
    No. 78-24.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Rehearing Denied March 21, 1979.

      Charles T. Collett, Tallahassee, for appellants.
    Charles R. Colbrunn of Greater Orlando Legal Services, Inc., Orlando, for appellee.
   STETTIN, HERBERT, Associate Judge.

The issue presented for review is whether declaratory judgment lies to compel compliance of an administrative agency to its own procedures.

Patricia Lewis applied to the Department of Health and Rehabilitative Services (HRS) for Aid to Families with Dependent Children (AFDC). On April 5, 1977, her application was rejected because she failed to supply HRS with information necessary to determine her eligibility. She requested an administrative hearing of this rejection on April 21, 1977, and on April 25, 1977, HRS acknowledged her hearing request by letter to her attorney, which stated:

“Pursuant to our telephone conversation of April 20, 1977 I want to re-emphasize to you, and through you to Ms. Lewis, that she has the right to re-apply while her hearing request is pending. I would encourage her to do so — particularly in view of the recent changes in her circumstances.”

Instead of reapplying for AFDC, thereby prolonging the time within which there would be a granting or denial of eligibility, Mrs. Lewis filed suit in Circuit Court for declaratory relief seeking:

1. (a) the right to submit to HRS current eligibility information at the time of redetermination;
(b) the right to compel HRS to use this current eligibility information at the time of redetermination;
2. an injunction requiring HRS to follow their own rules and procedures for fair hearings and redeterminations of eligibility; and
3. an injunction requiring HRS to pay AFDC benefits to her pending resolution of the suit.

HRS moved to dismiss the complaint on the ground, inter alia, that Mrs. Lewis had failed to exhaust her administrative remedies. The lower court denied the motion and Mrs. Lewis’s motion for temporary in-junctive relief. On motion for summary judgment the Court ruled:

“. . . that Plaintiff was an applicant for the public benefits administered by the Defendant, and that no redetermi-nation of Plaintiff’s eligibility was made because she was an applicant, it is thereupon
ORDERED AND ADJUDGED that Chapter 10-2.34(3) Florida Administrative Code entitled applicants for Aid to Families with Dependent Children to the procedural due process right of a redeter-mination of eligibility where a request for a hearing has been filed. The Florida Department of Health and Rehabilitative Services has no discretion to review and to redetermine upon the receipt of a request for a hearing from an applicant or recipient, but rather it is declared and hereby
ORDERED AND ADJUDGED that the Defendant, State of Florida, Department of Health and Rehabilitative Services, shall review an applicant’s or recipient’s situation upon receipt of request for a hearing, and shall make a determination of eligibility, based on current information, at or before the date of the requested hearing. It is further
ORDERED AND ADJUDGED that the foregoing declared rights are founded upon the Florida Constitution, Article I, Section 2. Basic Rights, and Section 9. Due Process, and therefore, the failure of the Defendant to follow the procedure mandated in Chapter 10 — 2.34 causes unnecessary delay which is tantamount to a deprivation of due process.”

It should be noted neither the complaint nor answer raised any question as to whether the HRS rules or regulations involved in this case were either facially unconstitutional, or unconstitutional as applied.

HRS believes the issue on appeal from this Summary Judgment is simply whether Mrs. Lewis’ failure to exhaust her administrative remedies precluded the circuit court from exercising jurisdiction. This begs the question, for there is a sizable body of recent case law which recognizes exceptions to the standard urged by HRS. In State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. DCA 1st 1977), Judge Smith exhaustively catalogued the judicial remedies available when the issue concerned administrative agency abuses. He concluded that passage of the 1974 Administrative Procedures Act, (amended in 1975), provided an “impressive arsenal of varied and abundant remedies for administrative error [which] requires judicial freshening of the doctrines of primary jurisdiction and exhaustion of remedies, and greater judicial deference to the legislative scheme.” 344 So.2d at 590. Cases where resort to the circuit court remained were those where the agency error was so egregious or devastating that the promised administrative remedy was too little or too late, and where the agency rule attacked was facially unconstitutional.

Willis was closely followed by School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. DCA 1st 1977), where Judge Boyer stated:

“. . . In the vast majority of cases, the sole method of challenging agency action, whether formally recognized as an ‘order’ or a ‘rule’ as it affects the substantial interests of a party is by petition for review to the appropriate District Court of Appeal. ... In those instances where there have been gross or flagrant abuses of power, or where such agencies have attempted to act beyond the powers delegated to them, the courts have unhesitatingly intervened. On the other hand, these agencies have been vested with powers and responsibilities in their field of operation by the legislative branch of the government. The courts have been extremely reluctant to interfere with the actions of such bodies in the proper performance of their duties and responsibilities in the absence of a clear and unmistakably flagrant violation of a constitutional or statutory right of the affected party.” 346 So.2d at 568.

See also Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. DCA 3rd 1977), where a proceeding for declaratory decree attacking an administrative ruling was permitted because the complaint alleged constitutional grounds. The Court warned, however:

“We admonish against attempts to evade appropriate review procedures by clothing claims for coercive relief in raiment of dubious constitutional dimensions in order to bootstrap such claims into subjects for declaratory decrees. Yet because the summary acts of state agencies and officials were sorély deficient in constitutionally guaranteed safeguards, because the harm done to plaintiff was inordinate, and because nothing in the Administrative Procedure Act divests the circuit courts of jurisdiction to render declaratory judgments in the rare cases where such defects in due process exist, we hold that, under the facts of this case, jurisdiction to render a declaratory decree did lie in the circuit court under Chapter 86, and Section 120.73, Florida Statutes (1975),” 350 So.2d at 533.

A distinction between a proceeding essentially seeking a review of agency action, and one essentially seeking a determination of rights has also been used as a litmus in determining jurisdiction. In the former case, the Administrative Procedure Act controls, whereas in the latter, jurisdiction lies in the circuit court. Adams Packing Association v. Florida Department of Citrus, 352 So.2d 569 (Fla. DCA 2d 1977). See also Gulf Pines Memorial Park, Inc. v. Oakland Memorial Park, Inc., 361 So.2d 695 (Fla.1978).

In Carrollwood State Bank v. Lewis, 362 So.2d 110 (Fla. DCA 1st 1978), the court noted that if the administrative proceeding under attack refused to recognize substantial interests, or even to afford a hearing, the remedy is not by declaratory or injunc-tive relief in the Circuit Court, but rather by review (including appeal to the District Court of Appeal) as provided by Chapter 120 F.S., the Administrative Procedure Act. The exception to this scheme of review is when the action is assailed upon constitutional grounds, for that attack can only be made in the circuit court. But the bare assertion of constitutional rights generally is not enough to invoke circuit court jurisdiction, unless the right claimed, such as due process of law, can be directly shown to have been impaired by an administrative statute, rule, or regulation.

In sum, the fact that Mrs. Lewis claimed the right to require HRS to allow redeterminations of eligibility for AFDC during fair hearing proceedings, or even the right to compel HRS to comply with its own rules and regulations in handling such problems, is not a sufficient basis to invoke circuit court jurisdiction. No claim is made that HRS itself cannot remedy any illegality in its procedures or correct any error in the manner in which they are carried out. This being true, the trial court was in error in denying the motion to dismiss the complaint and in granting the motion for summary judgment. The proceedings are reversed and remanded with instructions to dismiss the complaint.

DOWNEY and BERANEK, JJ., concur.


author: BOYER, Acting Chief Judge.

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. ALICE P., Susan A., Jeannette R., Samuel Barr, M. D., and Jacksonville Women’s Health Organization, Inc., and Central Florida Women’s Health Organization, Inc., Respondents.
    No. II-259.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1979.
    Rehearing Denied March 12, 1979.

      George L. Waas and Charles T. Collette, and Kenneth G. Oertel, Tallahassee, for petitioner.
    Terry L. DeMeo, South Miami, Jerry G. Traynham and Ben R. Patterson, Tallahassee, and Frank Susman, St. Louis, Mo., for respondents.
   BOYER, Acting Chief Judge.

By Petition for Review pursuant to F.S. 120.68 and Rule 4.5(c) Fla.App.R., the State of Florida Department of Health and Rehabilitative Services (hereinafter referred to as the Department) seeks review of a Final Order issued by a hearing officer of the Division of Administrative Hearings. Numerous points and sub-points are posed for our consideration. For clarity we will depart from our customary format of opinions and state the issues as we consider them following a recitation of the essential facts, which are not in dispute.

The Department administers the Medicaid program for the State of Florida pursuant to F.S. 409.266 and Chapters 10C-7 and 10C-8 of the Florida Administrative Code. (F.A.C.) That program is jointly funded by state and federal funds. Under the program, the Department makes payments for physicians’ services and for inpatient hospital services rendered to Medicaid recipients. Rules IOC-7.38 and 10C-7.39, F.A.C., are the Department’s rules which describe physicians’ services and inpatient services, respectively.

As a result of actions taken by the federal government federal funds for elective non-therapeutic abortions were terminated in the summer of 1977 and the Department subsequently received no federal funds to pay for such abortions. Federal funds thereafter could only be used to pay for Medicaid abortions when “the attending physician certifies the abortion is necessary because the life of the mother would be endangered if the fetus were carried to term or if the procedure is necessary to terminate an ectopic pregnancy.”

In an effort to harmonize its rules with the changes made by the federal government, the petitioner promulgated emergency rules on or about September 1,1977, and initiated proceedings for the adoption of permanent rules by publishing a notice of proposed amendments to the subject rules on October 14, 1977.

A petition was thereupon filed pursuant to F.S. 120.54(4) on behalf of Alice P. and Susan A., individually and as representatives of a class on October 28, 1977, 14 days after publication of the notice, asserting in part that the proposed amendments constituted an impoundment of funds appropriated by the Legislature and that the notice of the summary of the estimate of economic impact was incorrect or erroneous.

The Department moved to dismiss the petition on the grounds of lack of standing and the unavailability of class actions in an F.S. 120.54(3) proceeding.

At a pre-hearing conference, the hearing officer denied the motion to dismiss as to standing, reserved ruling as to the motion to dismiss the class action and set the hearing date for November 30, 1977.

On or about November 13, 1977, a petition for intervention on behalf of Jacksonville Women’s Health Organization, Inc., and Central Florida Women’s Health Organization, Inc., and similarly situated providers was filed. That petition was filed by an out-of-state attorney not admitted to The Florida Bar and not then associated as co-counsel with a member of The Florida Bar.

On or about November 17, 1977, an amended petition was filed on behalf of anonymous petitioners Jane Doe and Janet Woe and petitioner Samuel J. Barr, M.D. together with a motion for leave to amend.

The Department opposed the petition for intervention by the corporate intervenors on the grounds that it expanded the issues presented in the original petition and was filed by an out-of-state lawyer contrary to Fla.R.Civ.P. 1.030. The Department also opposed the amended petition on the grounds that, as to Barr, the amended petition raised new issues and established a new cause of action and, as to Jane Doe and Janet Woe, the amended petition failed to demonstrate adequate statutory standing and the process was insufficient.

On or about November 23, 1977, Jeannette R. sought to intervene. On the same day, the other anonymous petitioners (Alice P., Susan A., Jane Doe and Janet Woe) moved for a protective order or partial in camera inspection to prevent their identities from becoming public record in an administrative proceeding.

Based upon Alice P. and Susan A.’s response to the Department’s first set of interrogatories that they were no longer pregnant, the Department again moved to dismiss the original petition premised upon a demonstrable lack of standing in that, not being pregnant, they could not challenge the proposed amendments to the subject rules. On the same day (November 28, 1977 — two days before the scheduled hearing), the Department moved in opposition to the motion for protective order or partial in camera proceedings on the ground that, among others, a hearing officer has no authority to seal public records and moved to dismiss Jeannette R.’s petition for lack of standing and untimeliness, urging the inequity of multiple filings on behalf of anonymous petitioners and others seeking to expand the issues beyond the original petition.

A second pre-hearing conference was held on November 30, 1977. Although counsel for the anonymous petitioners admitted that the purpose of the amended petition was “to include some expanded allegations and two new parties”, the hearing officer stated that he was not concerned with the technicalities of standing but was “interested in reaching the merits in this case.” To that end, the hearing officer ruled that “any woman of childbearing age and regardless of whether they are pregnant or not entitles them to pursue this action”. However, he subsequently amended his finding to embrace only “women of childbearing age who are Medicaid recipients”.

The Department’s motion to dismiss on the grounds that anonymous petitioners Alice P. and Susan A. had procured abortions, thereby vitiating any claim of standing, and that an inadequate petition cannot be revised by subsequent untimely filed pleadings was denied. During the hearing, Alice P. was dismissed as a party without evidence having been adduced regarding her standing.

At the final hearing, Jeannette R. and Janet Woe stated that they were pregnant Medicaid recipients. Both had attempted to use their Medicaid benefits to obtain desired abortions, but were denied them because of the funding cutoff.

Respondent Dr. Samuel Barr, testified generally about the effects of the Medicaid abortion ban from his perspective as a provider and as a physician.

Michael Morton, who prepared the Department’s Economic Impact Statement, testified concerning his qualifications to properly prepare such a study and his understanding of the meaning of the statute. He testified concerning how he prepared the statement, and that, in his opinion, the statute was impossible for anyone to comply with.

Dr. Howard Gitlow, a statistician from the University of Miami who specializes in research in the economics of abortion, explained the technical requirements of the statute. He testified as to those respects in which the Department’s statement did not comply with the statutory requirements, and concluded that the Department’s statement was very poor.

On December 23, 1977 the hearing officer issued the Final Order here sought to be reviewed invalidating the Department’s proposed amendments to Rule Sections IOC-7.38 and IOC-7.39, Florida Administrative Code (F.A.C.), on the grounds that the proposed amendments constituted an im-poundment of legislatively appropriated funds and the Department’s economic impact statement was inadequate and incomplete.

The Department phrases the points argued in its briefs as follows:

I.
WHETHER THE HEARING OFFICER ERRED IN EXERCISING JURISDICTION AS TO A PETITION CHALLENGING PROPOSED AMENDMENTS TO RULES UNDER § 120.54(4), F.S., FILED BY FICTITIOUS PETITIONERS, ALICE P. AND SUSAN A., WHO COULD NOT DEMONSTRATE STANDING WITHIN THE STATUTORY 14-DAY TIME LIMIT IN WHICH TO CHALLENGE A PROPOSED RULE.
II.
WHETHER THE HEARING OFFICER ERRED IN EXERCISING JURISDICTION AS TO PETITIONS FILED AFTER THE PASSING OF THE 14-DAY TIME LIMIT WHEN THESE PETITIONS RAISE NEW ISSUES AND FICTITIOUS PETITIONERS-INTERVE-NORS CANNOT AND DO NOT DEMONSTRATE STANDING.
III.
WHETHER THE HEARING OFFICER ERRED IN CONFERRING STANDING UPON FEMALE MEDICAID RECIPIENTS OF CHILDBEARING AGE WHEN THE CHALLENGED PROPOSED AMENDMENTS DEAL EXCLUSIVELY WITH TERMINATION OF FUNDS FOR ELECTIVE ABORTIONS.
IV.
WHETHER THE HEARING OFFICER ERRED IN ALLOWING THIS CASE TO PROCEED AS A CLASS ACTION.
V.
WHETHER THE HEARING OFFICER ERRED IN RULING THAT THE DEPARTMENT’S PROPOSED AMENDMENTS CANNOT BE PROMULGATED UNDER ANY CIRCUMSTANCES BECAUSE THESE AMENDMENTS CONSTITUTE THE IMPOUNDMENT OF LEGISLATIVELY APPROPRIATED FUNDS.
VI.
WHETHER THE HEARING OFFICER ERRED IN RESTRICTING THE DEPARTMENT’S EXAMINATION AS TO THE VALID AVAILABLE DEFENSE OF CHAMPERTY AND MAINTENANCE.
VII.
WHETHER THE HEARING OFFICER ERRED IN DECLARING INVALID THE DEPARTMENT’S ECONOMIC IMPACT STATEMENTS WHEN THE CHALLENGE THERETO WAS NOT CONTAINED IN THE ORIGINAL PETITION AND THE DEPARTMENT FOLLOWED THE COMMANDS OF § 120.54(2), F.S.

We do not find it necessary to consider the points in the order presented.

As to class action status, we hold that a proposed rule challenge is not, under Florida law, a proper proceeding for the maintenance of a class action.

In Cordell v. World Ins. Co., 355 So.2d 479 (Fla. 1st DCA 1978), we discussed the requisites of a class action and there referred to the leading Florida cases on the subject, quoting from Harrell v. Hess Oil and Chemical Corporation, 287 So.2d 291 (Fla.1973) in which the Supreme Court of Florida succinctly summarized the requisites of a class action, citing Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla. 2nd DCA 1963), as follows:

“The standards which must be met in order properly to plead a class action have been stated many times, but are perhaps set out best in Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla.App.2d 1963). As noted there, a complaint in a class action suit must:
“(1) show the necessity for bringing the action as a class suit;
“(2) show plaintiff’s right to represent the class;
“(3) allege that plaintiff brought suit on behalf of himself and all others similarly situated;
“(4) allege the existence of a class, described with some degree of certainty;
(5) allege that the members of the class were so numerous as to make it impracticable to bring them all before the court;
“(6) make it clear that plaintiff adequately represents the class; and
“(7) show that the interests of the plaintiff were co-extensive with the interests of the other members of the class.” (Harrell v. Hess Oil and Chemical Corporation, 287 So.2d 291, 293 — 294 (Fla. 1973) (355 So.2d at page 480)

Sub judice, neither the original petition filed by the anonymous complainants, the amendments thereto nor the subsequent proceedings properly complied with standards (1), (2), (4), (6), nor (7) as above quoted. Indeed, it is obviously impossible in a proposed rule challenge proceeding to ever comply with standard (1), viz: Show the necessity for bringing the action as a class suit.

In an administrative proceeding wherein a proposed rule is challenged, if a single challenger successfully attacks the proposed rule then it does not become operational as to any other person similarly situated. Accordingly, there is simply no necessity for a class action. An agency may not enforce an invalid rule as to any person substantially affected by it even if the successful challenger is a single individual.

Whether or not a rule adopted following an unsuccessful challenge during the adoption process may be subsequently challenged by the unsuccessful challenger after adoption, or by others similarly situated or similarly interested or affected, is not an issue here presented and will not therefore be addressed by us. (But see State Department of Health, etc. v. Barr, 359 So.2d 503 (Fla. 1st DCA 1978).

Addressing the point relative to champerty and maintenance, we note the holding of the Supreme Court of Florida in Cone v. Benjamin, 157 Fla. 800, 27 So.2d 90 (1946), wherein the court stated:

“The general rule seems to be that a suit will be dismissed because of champerty only when the champertous assignment or other champertous contract is the basis of plaintiff’s claim and is directly involved in the action, and not when the champertous contract is one between the plaintiff and his attorney, collateral in its nature, and which in no wise affects the obligation of the defendant to the plaintiff. It it the champertous contract which is void, and the right of action of the plaintiff is not affected thereby, but must stand or fall upon its own merits or demerits. See 14 C.J.S. Champerty and Maintenance § 38, p. 382, and eases cited.” (27 So.2d at pages 107-108)

Although a court or hearing officer should be ever vigilant of unprofessional or unethical conduct and should be liberal in allowing questions framed to determine whether “the cause is following the client or the client is following the cause” we do not find, under the facts and circumstances of this particular case, that the hearing officer erred in refusing to permit extended questions in that regard.

Turning now to the issue of standing: The Final Order here challenged contains the following recitation:

“ * * * After hearing all the testimony in this proceeding it is the determination of this Hearing Officer that all women of childbearing age who are Medicaid recipients are substantially affected by the proposed rule and have adequate standing to challenge it pursuant to Chapter 120, F.S.”

That holding is clearly erroneous. Whatever the law may be in Federal courts or other jurisdictions, the Florida law on the subject has been clearly and unambiguously settled by this court’s opinion (which the respondents characterize as a “somewhat restrictive view”) in Florida Dept, of Offender Rehab, v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), cert, denied 359 So.2d 1215 (Fla.1978). In that case this court refused standing to a prison inmate to challenge a rule even though he had prior to the challenge been directly affected by its operation. Clearly under the rationale of the Jerry case the hearing officer’s holding that all women of childbearing age, whether pregnant or not, who are Medicaid recipients are substantially affected by the proposed rule and therefore have standing, is much too broad to countenance our approval. No useful purpose will be here achieved by attempts to paraphrase the holding in the Jerry case nor by lengthy quotations therefrom. The opinion is clearly and lucidly written, numerous authorities are cited and the court’s reasoning allows no room for doubt.

Nor does the hearing officer’s holding find support in this court’s opinion, Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977). The observation of the author of the Jerry case distinguishing the Gadsden State Bank case wherein he stated “Finally we note that Jerry has not been made a party by agency rule as in Gadsden State Bank v. Lewis, supra” (353 So.2d at page 1236) is equally applicable here.

Respondents seek to distinguish the Jerry decision on the basis that the court was there concerned with a rule challenge pursuant to F.S. 120.56 whereas sub judice respondents were challenging a proposed rule in accordance with F.S. 120.54(4), urging that the test for standing to challenge a proposed rule is easier to meet than that for the challenge of an adopted rule. The thrust of respondents’ argument is that although both statutes contain the “substantially affected” test, F.S. 120.56(2) requires that a petition challenging an adopted rule show the person seeking relief is substantially affected by the rule while F.S. 120.-54(4)(b) requires only a showing that the challenger of the proposed rule would be substantially affected by it; concluding that the difference between the present tense “is” employed by the legislature in F.S. 120.56(2) as compared to the future tense “would be” contained in F.S. 120.-54(4)(b) is significant and indicates a lower threshold of standing in the latter than in the former. We reject that reasoning. It is clear that the legislature adopted the verb tense applicable to the subject under consideration. As to an already adopted rule a person otherwise having standing must demonstrate that he or she “is” substantially affected by the rule. On the other hand, the present tense is inapplicable to a rule which has not yet come into existence since it is only proposed. Under those circumstances the legislature quite properly and logically provided that a challenger who surely cannot show that he “is” affected by the proposed rule because it has not yet even come into existence, must show that he “would be” substantially affected by it. There is no difference between the immediacy and reality necessary to confer standing whether the proceeding is to challenge an existing rule or a proposed rule.

As we held in Agrico Chemical Co., et al. v. State of Florida, Department of Environmental Regulation, et al, 365 So.2d 759 (Fla. 1st DCA 1978), the burden is upon the challenger of a proposed rule to demonstrate its invalidity. The burden is also upon the challenger, when standing is resisted, to prove standing.

Notwithstanding the erroneous standard adopted by the hearing officer, we must determine whether or not the several challengers in fact had standing. As already recited the challenge was initially made by Alice P. and Susan A. Alice P. was dismissed as a party without standing having been proved and that dismissal is not an issue here.

Unlike Roe in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the record in the case sub judice reveals that Susan A. was not pregnant at the time the rule challenge was filed. It is apparent, therefore, that she did not meet the test for standing required by the Jerry decision. The record is silent as to the standing of Jane Doe. Janet Woe and Jeannette R. both testified that they were pregnant Medicaid recipients desiring abortions and unable to obtain same because of the “cutoff” of Medicaid funds. Samuel Barr, M.D., testified that he had been a Medicaid provider for five years, that he was the Director of an abortion clinic and had held that position for the past four and one-half years, that approximately thirteen per cent of the clinic’s abortions in that period were Medicaid funded, and that since the Medicaid funding was cutoff the number of Medicaid eligible patients patronizing the clinic had decreased significantly. Other than the allegations of the unsworn petition to intervene, the record reflects no basis for a finding of standing of Jacksonville Women’s Health Organization, Inc. and Central Florida Women’s Health Organization, Inc.

The query, then, is whether Janet Woe and Samuel J. Barr, M.D., who came into the proceeding by way of an amended petition and Jeannette R., as intervenor, all of whom meet the threshold test, otherwise have standing.

F.S. 120.54(4)(b) requires that one seeking an administrative determination of the invalidity of a proposed rule must file his petition of request with the Division within fourteen days after the date of publication of the notice required by subsection (1) of the statute. That fourteen day period is jurisdictional. Failure to file a valid petition or request within that fourteen day period is grounds for dismissal upon proper motion directed to jurisdiction. F.S. 120.-54(4)(d) provides that: “Other substantially affected persons may join the proceeding as parties or intervenors on appropriate terms which will not substantially delay the proceedings.”

The Department contends that since Janet Woe and Samuel J. Barr, M.D., came into the case via an amended petition filed November 18,1977 and Jeannette R. by motion to intervene filed November 23, 1977, both substantially beyond the fourteen day jurisdictional period for the contest of a proposed rule, they are without standing. We agree.

Whether or not the above quoted portion of F.S. 120.54(4)(d) allowing other substantially affected person to join as parties or intervenors should be construed as permitting such joinder after expiration of the fourteen day jurisdictional period provided by paragraph (b) of the statute we need not here determine for the reason that obviously such joinder contemplates the existence of a valid proceeding. It was never intended by the legislature that such provision be construed as being a vehicle for the breathing of life or validity into an otherwise dead or invalid proceeding. Sub judi-ce, as we have held, the original remaining petitioner, Susan A. (Alice P. having been dismissed) was without standing. She was the only party (other than Alice P.) who filed within the fourteen day jurisdictional period. Susan A., being without standing, that filing was a nullity. There was therefore no validly existing proceeding to which the other persons (or corporations) could become parties or intervenors. The Department’s several motions to dismiss should have been granted.

We gratuitously observe that dismissal of a petition pursuant to F.S. 120.-54(4) for failure to comply with the statutory jurisdictional requirement is not fatal to any rights of the challenger as to the proposed rule after its adoption because such dismissal for lack of jurisdiction has no affect upon the availability of a rule challenge pursuant to F.S. 120.56 after the rule has been adopted.

We have heretofore declined to hold the issues herein raised to have been rendered moot by the passage of time and the expiration of the fiscal year for which the allegedly impounded funds were appropriated because the controversy is “capable of repetition, yet evading review”. (See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and U. S. v. New York Telephone Company, 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376.) However, the Department has now furnished us with a copy of the relevant portions of an issue of the Florida Administrative Weekly, dated December 15,1978, revealing a notice that the Department has withdrawn “the proposed amendments to Rules 10C—7.38 and IOC-7.39 relating to Medicaid funding for abortions, which amendments were noticed in the October 14, 1977 issue of the Florida Administrative Weekly” (said proposed rules being those which are the subject matter of this proceeding). That information is attached as an exhibit to a Suggestion of Mootness. In view of the withdrawal of said proposed rules, whether they are “an invalid exercise of delegated legislative authority” (F.S. 120.54(4)(a)) is moot and the controversy here is not therefore now capable of repetition, yet evading review.

Having so resolved the case, it is unnecessary for us to decide whether a party claiming monetary benefits (as here) or damages, as distinguished from declaratory relief (as in Roe v. Wade, supra), is entitled to maintain the action anonymously or under a pseudonym.

The Department’s motion to dismiss the Petition for Administrative Determination of Proposed Rules, as amended, should have been granted. The remaining issues raised by this proceeding are moot.

IT IS SO ORDERED.

SMITH and BOOTH, JJ., concur.

      . Neither did she meet the standard of Roe v. Wade because, as specifically recited by the author of that opinion, Roe was pregnant at the time the suit was filed.

      . Janet Woe and Jeannette R. were both pregnant medicaid recipients at the time each sought to become a party. Barr’s testimony established that he was “substantially affected” prior to, and at the time of, the filing of the amended petition.


author: BOYER, Judge.

text:
    Virgil Q. MAYO and Sue Klein Gissendaner, Appellants, v. Eva OWENS, Delma Owens, George M. Walden and his wife, Rozelle Walden, Huey P. Brantley and his wife, Betty W. Brantley, Clyde E. Gainey and his wife, Geraldine Gainey, Ruth Gainey, Robert F. Walden and his wife, Ruby Walden, Newton Walden, Wesley C. Haefner and his wife, Kathlyn Haefner, D. L. Kyle and his wife, Betty Kyle, Clarence V. Smith and his wife, Dorothy Smith, Christinia Ann Brown, and James E. Farmer, Albert Joiner, and George M. Walden as trustees for the Bristol Church of God, Appellees.
    Nos. JJ-377, LL-40.
    District Court of Appeal of Florida, First District.
    Feb. 1, 1979.
    Rehearing Denied March 15, 1979.
    H. Guy Green, Marianna, for appellants.
    Frank A. Baker, Blountstown, for appel-lees.
   BOYER, Judge.

By this appeal we are called upon to construe Chapter 712, Florida Statutes, commonly known as the Marketable Title Act. Appellant also raises procedural issues which, however, we find to be without merit.

On October 1, 1947 there was filed and recorded in the office of the Clerk of the Circuit Court of Liberty County, Florida a certain deed dated September 24,1947 from Ruth Gainey and ten other persons designated as parties of the first part in favor of George M. Walden and Rozelle Walden, his wife, designated as parties of the second part. Except as to name, marital status and county of residence none of the parties were otherwise described, nor was there any recitation of relationship. (Except as to the marital relationship of some of the parties.) The deed purported to convey certain land in Liberty County, Florida which was described by reference to section, township and range. The legal description concluded with the phrase “being the same lands conveyed by M. J. Solomon to Green Walden.” Except for that recitation there was no other mention of either M. J. Solomon nor Green Walden, nor was there any recitation as to whether M. J. Solomon or Green Walden were dead or alive nor whether either were related to any of the parties to the transaction.

By various conveyances not here material, portions of the property described in the above mentioned deed were conveyed by the grantees George M. Walden and Rozelle Walden, his wife, to various persons.

On May 28, 1975 a circuit judge in and for Liberty County, Florida entered a “Final Judgment Determining Heirs” in a proceeding entitled “In Re: Determination of the Heirs of Green Walden, Deceased” which final judgment determined that Virgil Q. Mayo and Sue Klein were both heirs of said Green Walden and that “their respective interests in and to his estate that have not been otherwise descended or conveyed, are as follows:” Vis each. Seven other persons were determined by said final judgment to also be heirs of said Green Walden and to each be entitled to a Vs interest in his estate. Said final judgment neither described nor mentioned any real nor personal property. That final judgment was filed in the office of the Clerk of the Circuit Court of Liberty County, Florida on the date of its entry, May 28, 1975.

On March 6,1977, Eva Owens and numerous other persons (appellees here) filed a multiple count complaint in the Circuit Court of Liberty County against Virgil Q. Mayo and Sue Klein (appellants here) seeking to quite title to the property which is the subject matter of this suit. Each count derived title from the deed first above mentioned dated September 24, 1947 alleging “actual, continuous, open, notorious, hostile, and exclusive possession, for more than seven years.” Each count also alleged that the defendants, Virgil Q. Mayo and Sue Klein, claimed an interest in the subject property “by virtue of being heirs-at-law of Green Walden, deceased”.

On May 2, 1977 the plaintiffs (appellees here) filed an amended complaint (entitled “First Amended Complaint”) to which the defendants (appellants here) filed an answer containing affirmative defenses.

By order dated January 12, 1978 the plaintiffs were permitted to file a supplemental pleading adding to each count of their complaint (“First Amended Complaint”) the following paragraph:

“The Defendants claim an interest in the subject disputed parcel as heirs-at-law of Newton Walden, Deceased, and Green Walden, Deceased, who both died intestate on or before September 23,1947. As of October 2, 1977, the Defendants had filed no notice or other paper pursuant to Section 712.06, Florida Statutes, in the public records of Liberty County, Florida, with respect to the Plaintiffs or the subject disputed parcel. The subject disputed parcel has not been assessed in the names of either of the Defendants, or Green Walden, Deceased, Newton Walden, Deceased, or Susie Walden, Deceased, on the tax rolls of Liberty County, Florida, since 1972. As of October 2, 1977, the instrument under which the Plaintiffs claim, a warranty deed from Ruth Gainey and her husband, C. F. Gai-ney, et al, referred to in paragraph 2 above, recorded October 1, 1947, in Deed Book 33 at page 190, had been filed and had been recorded in the public records of Liberty County, Florida, in excess of thirty years.”

The Defendants moved to dismiss the supplemental pleading which motion was denied.

By order dated March 16, 1978 the trial court, acting on a motion for summary judgment filed by the plaintiffs, held:

“The Affidavits in support of the Plaintiffs’ Motion for Summary Judgment refer to a certain Final Judgment determining the heirs-at-law of Green Walden, Deceased, and a copy of that Final Judgment determining heirs is attached to the Affidavits. There is no genuine issue of material fact as to the Plaintiffs’ right to the relief prayed for based on Florida Statutes Chapter 712, and the sole question of law before this Court is whether the Final Judgment Determining Heirs presents an exception to Chapter 712 as set out in F.S.A. Section 712.03(4). This Court is of the opinion that said Final Judgment Determining Heirs is not such a title transaction giving rise to any estate or interest in or of the Defendants as to constitute an exception to the Plaintiffs’ right to recover pursuant to Florida Statutes Chapter 712. Therefore, it is hereby ordered that the Motion for Summary Judgment of the Plaintiffs, GEORGE WALDEN, ROZELLE WALDEN, and NEWTON WALDEN, as to Counts I and X of the Complaint filed in this cause is hereby granted. Upon proper motion and hearing, Final Judgment shall be entered in favor of said Plaintiffs in accordance with this Order, and Court retains jurisdiction to enter such other Order incident thereto that it may deem necessary.”

Appeal was taken from said Order and assigned this Court’s case no. JJ-377.

Thereafter the plaintiffs George Walden, Rozelle Walden and Newton Walden filed a Motion for Final Judgment which was granted, which final judgment recited, inter alia, that:

“The defendants are jointly and individually perpetually enjoined and restrained from further clouding in any manner or form the title to the said properties and each and every piece and parcel thereof, or from asserting any title, claim, or right to the above described parcel of real property owned by the plaintiffs, or from taking possession thereof, except by virtue of valid assignment of interest from the plaintiffs to the defendants.”

Appeal was taken from that final judgment and assigned this Court’s case no. LL-40.

The two cases have been consolidated by prior Order of this Court.

The first issue is as set out by the learned trial judge, viz: Whether the “Final Judgment Determining Heirs” which was entered and recorded before the expiration of thirty years following the date of recor-dation of the 1947 deed is a “title transaction” within the contemplation of F.S. 712.-03(4).

F.S. 712.01(3) defines “title transaction” to mean “any recorded instrument or court proceeding which affects title to any estate or interest in land.”

F.S. 712.02 provides:

“Any person having the legal capacity to own land in this state, who, alone or together with his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s. 712.03. A person shall have a marketable record title when the public records disclosed a record title transaction affecting the title to the land which has been of record for not less than 30 years purporting to create such estate either in:
“(1) The person claiming such estate; or
“(2) Some other person from whom, by one or more title transaction, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed.”

F.S. 712.03 entitled “Exceptions to Marketability”, provides in material part:

“Such marketable record title shall not affect or extinguish the following rights: ******
“(4) Estates, interests, claims, or charges arising out of a title transaction which has been recorded subsequent to the effective date of the root of title.”

The term “root of title” is defined by F.S. 712.01(2) as follows:

“ ‘Root of title’ means any title transaction purporting to create or transfer the estate claimed by any person and which is the last title transaction to have been recorded at least 30 years prior to the time when marketability is being determined. The effective date of the root of title is the date on which it was recorded.”

Appellees rely upon the 1947 deed as being their “root of title”.

Since the entry of the order and final judgment here appealed by the learned trial judge this court has rendered an opinion in Kittrell v. Clark, 363 So.2d 373 (Fla. 1st DCA 1978) wherein it was held that the probate and recording of a Will which devised all of the decedent’s real property to his wife but did not particularly describe any real property, even though the various documents filed in the probate proceeding failed to refer to the real property interest involved in that case, nevertheless constituted a “title transaction” within the meaning of F.S. 712.01(3). The court specifically rejected the proposition that in order to qualify as a “title transaction” the affecting instrument must specifically describe the estate or interest which it affects, saying:

“Appellant suggests that we construe ‘title transaction’ to require the description of the land it purports to affect and that this would be consistent with the provisions of Sections 712.03(1) and 712.06(l)(c) which require an accurate description of the land or interest involved. This is a persuasive and appealing argument but we may not supply that which the legislature did not choose to include in Sections 712.01(3) and 712.03(4). This is the sole prerogative of the legislature and we will not encroach upon its authority.” (363 So.2d at pages 374, 375)

Applying the principle of that case to the facts sub judiee it appears that the “Final Judgment Determining Heirs” which was filed and recorded within 30 years from the date of execution and recordation of the 1947 deed (root of title) constituted “a title transaction which has been recorded subsequent to the effective date of the root title”. (F.S. 712.03(4)) Clearly, although said Final Judgment Determining Heirs did not describe any particular property, it determined appellants to be heirs-at-law of Green Walden, deceased, and it adjudicated “their respective interests in and to his estate”, thereby “affecting title to any lands owned by Green Walden at the time of his death.” (See F.S. 712.01(3))

It would appear, therefore, that based upon the principle of Kittrell v. Clark, supra, we should hold that the Final Judgment Determining Heirs adjudicating appellants to be heirs-at-law of Green Walden, deceased, was and is, contrary to the holding of the learned trial judge in the order appealed in Case No. JJ-377, “a title transaction giving rise to [an] estate or interest in or of the defendants [so] as to constitute an exception to the plaintiffs’ right to recover pursuant to Florida Statute Chapter 712.” However, our task is not so simple. As already repeatedly stated, the Final Judgment Determining Heirs simply determined that appellants are heirs-at-law of Green Walden, deceased, and that their respective interests in and to his estate is Vi6 each. However, there is nothing in the record on appeal to establish that Green Walden had any interest in the subject property at the time of his death. As already recited, the 1947 deed contained no recitation as to any relationship between any of the parties thereto and Green Walden. The only reference to Green Walden in that deed is the concluding clause of the legal description recited therein, to wit: “Being the same lands conveyed by M. J. Solomon to Green Walden.” Although an affidavit filed in support of the plaintiffs’ motion for summary judgment recites that “Green Walden, deceased, died without a Will, domiciled in Liberty County, Florida, on or before September 23, 1947.” and that “His estate was never probated.” There is not one recitation any place in the record that Green Walden was the owner of any property at the time of his death.

Accordingly, the record being silent as to the interest, if any, of Green Walden in the subject property at the time of his death, the record is insufficient to sustain a summary judgment in favor of, or against, any party to this proceeding. The case simply was not “ripe” for disposition in any manner at the time of the entry of the order and Final Judgment appealed in these consolidated cases. (See Connell v. Sledge (and USF & G), 306 So.2d 194 (Fla. 1st DCA 1975), cert. dism. 336 So.2d 105 (Fla.1976).)

Having so ruled, we find it unnecessary to consider the other points raised by the parties.

Reversed and remanded for further proceedings consistent herewith.

' McCORD, C. J., and MELVIN, J., concur.

      . However, the trial court disposed of the case without considering the issue of adverse possession.


author: PER CURIAM.

text:
    Charles Lee PERRITTE, Appellant, v. STATE of Florida, Appellee.
    No. LL-99.
    District Court of Appeal of Florida, First District.
    Feb. 1, 1979.
    Rehearing Denied March 15, 1979.
    Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Richard Prospect, Asst. Atty. Gen., for appellee.
   ON MOTION TO DISMISS

PER CURIAM.

Appellant seeks review of a trial court order committing him to the care and custody of the Department of Health and Rehabilitative Services. The order was entered pursuant to § 917.19, Fla.Stat. (1977), upon a finding that appellant was a mentally disordered sex offender. Appellant’s commitment as a mentally disordered sex offender followed the tender of a plea of no contest to the charge of lewd and lascivious assault upon a six-year old child. Prior to commitment, appellant had moved to withdraw his previously entered plea of no contest, but the motion was denied and the commitment order entered.

The State argues that the appeal must be dismissed for lack of jurisdiction. Fla.R. App.P. 9.140(b) sets forth those appeals permitted by a defendant in a criminal proceeding and the State argues that the order under review is not one from which appeal would lie under Rule 9.140.

Appellant contends that a commitment order entered pursuant to § 917.19, Fla. Stat. (1977), is tantamount to a “final judgment of conviction” within the meaning of § 924.06(l)(a), Fla.Stat. (1977), or a “final judgment adjudicating guilt” within the meaning of Fla.R.App.P. 9.140(b)(1)(A). In the alternative, appellant argues that the appeal should be treated as a petition for writ of habeas corpus.

In the first instance, we reject appellant’s argument that Ch. 917, Fla.Stat. (1977), makes it a prerequisite that one who enters a plea of no contest be previously adjudicated guilty prior to receiving treatment as a mentally disordered sex offender. Ch. 917 contains no requirement that formal adjudication of guilt precede commitment for treatment. In the instant case, the record shows that appellant has never been formally adjudicated guilty to the charges on which the no contest plea was entered. Formal adjudication of guilt and sentencing follows, rather than precedes, commitment for treatment under the mentally disordered sex offender statute. See Gammill v. Wainwright, 357 So.2d 714 (Fla. 1978). For the foregoing reasons, we find no authority for this appeal under Fla.R. App.P. 9.140(b).

Further analysis of the jurisdictional basis for this appeal leads us to consider § 917.24, Fla.Stat. (1977), which provides as follows:

917.24 Civil Proceedings — The proceedings provided for in this chapter are civil and shall not alter the tests of mental capacity applied in criminal prosecutions.

The State’s argument for dismissal and appellant’s response thereto seize on the fact that the commitment order now on appeal evolved out of a criminal transaction. We perceive, however, that both the State and appellant overlook the fact that commitment and treatment under Ch. 917 is a break in the criminal process. Criminal proceedings are recommenced only upon the offender’s discharge from a mentally disordered sex offender treatment program. Section 917.215, Fla.Stat. (1977). By the explicit operation of § 917.24, Fla.Stat. (1977), a commitment order entered pursuant to § 917.19, Fla.Stat. (1977), is an order entered in a civil proceeding. Fla.R.App.P. 9.140, applicable to appeal proceedings in criminal cases, is not applicable to this appeal. Jurisdiction vests pursuant to Fla.R. App.P. 9.110.

Appellee’s motion to dismiss is denied.

BOYER, Acting C. J., and MILLS and ERYIN, JJ., concur.


author: MILLS, Acting Chief Judge.

text:
    AMERICAN AND FOREIGN INSURANCE COMPANY, Appellant, v. AVIS RENT-A-CAR SYSTEM, INC., Appellee.
    No. KK-430.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1979.
    Rehearing Denied March 21, 1979.
    Charles Cook Howell, III, of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appellant.
    Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
   MILLS, Acting Chief Judge.

American and Foreign Insurance Company (A&F), the automobile liability carrier of Robert Hulsey, appeals from a final judgment entered in favor of Avis Rent-A-Car System, Inc. (Avis).

A group of employees, while in the course of their employment with Blue Cross Blue Shield, rented a vehicle from Avis. An accident occurred while Hulsey, a permissive user of the rented vehicle, was driving. Mary Flesher, a passenger in the vehicle and co-employee of Hulsey, brought suit against Hulsey, A&F, and Avis for the injuries she sustained as a result of the accident. Final judgment was entered against Hulsey and A&F for $233,000 plus costs. A&F brought the present action against Avis seeking subrogation in accordance with the Avis rental agreement.

Avis’ rental agreement provided in part:

Lessor provides coverage for person using the vehicle with the permission of lessor (and not otherwise) in accordance with the standard provisions of an automobile liability insurance policy, a copy of which is available for inspection at the main office of lessor on request, against liability for bodily injury, including death (limits $100,000 each person, $300,000 each accident) and property damage ($25,000) arising out of use of the vehicle, which coverage includes mandatory No fault benefits as required by law. Lessor reserves the right, where permitted by law to provide said coverage under certificate of self insurance in lieu of or in combination with an insurance policy.

Avis asserted as an affirmative defense that the policy mentioned under the above-quoted paragraph of the Rental Agreement, in accordance with the standard provisions of an automobile liability insurance policy, provided no coverage for Hulsey in that it contained the following exclusion:

Persons insured .

None of the following is an insured .
(i) any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment; .

This exclusion was contained in a comprehensive general and automobile liability policy issued by Liberty Mutual Insurance Company to Avis. The trial court determined that the conditions applicable to the insurance coverage promised by the rental agreement where those set out in the Liberty Mutual Insurance policy issued to Avis. Relying on the “cross-employee” exclusion therein, the court found that Hulsey was not an insured under that policy. We reverse.

Avis may not rely upon the “cross-employee” exclusion contained in the Liberty Mutual policy to deny the coverage promised by the rental agreement. The rental agreement promised that Avis would provide liability coverage for permissive users “in accordance with the standard provisions of an automobile liability policy, a copy of which is available at the main office of lessor [Avis].” The agreement fails to identify or sufficiently describe the Liberty Mutual policy as the policy referred to by the agreement. In fact, the agreement even fails to identify the main office where “the” policy was located and available for inspection. Furthermore, Avis presented no evidence to establish that a “cross-employee” exclusion is among “the standard provisions of an automobile liability insurance policy.” Nor did Avis establish that the “cross-employee” exclusion contained in the Liberty Mutual policy is within “the standard provisions of an automobile liability insurance policy.” For these reasons, Avis failed to establish its affirmative defense that the rental agreement provided no coverage for Hulsey.

Accordingly, the final judgment entered in favor of Avis is reversed. The cause is remanded with instructions that final judgment be entered in favor of A & F.

SMITH, J., and MASON, ERNEST E., Associate Judge, concur.


author: McCORD, Chief Judge.

text:
    Kathryn WOODMAN, Individually, and Kathryn Woodman, as guardian and next friend of Jennifer Woodman, Appellant, v. Ed DEVER, as owner of Sea Lodge Motel, Gerald and Barbara Lawson, as lessees of the Sea Lodge Motel, and Auto-Owners Insurance Company, et al., Appellees.
    No. II-208.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1979.
    Rehearing Denied March 14, 1979.

      Elizabeth J. Gulden of Billings, Frederick, Wooten & Honeywell, Orlando, for appellant.
    J. Robert Hughes of Barron, Redding, Boggs & Hughes, Panama City, for appel-lees.
   McCORD, Chief Judge.

Appellant appeals the trial court’s dismissal with prejudice of Counts III and IV of appellant’s complaint which sought money damages for the mental pain and emotional stress suffered by her daughter. We affirm.

Appellant filed a complaint against appel-lees seeking money damages for physical and mental injuries sustained by appellant and mental injuries sustained by her minor daughter, Jennifer. The complaint alleges that appellant and her two daughters were registered in appellees’ motel on July 24, 1975; that appellant locked the doors to the room before she and her daughters went to sleep; that an unknown intruder entered the room where appellant and her daughters were sleeping and sexually assaulted and robbed appellant; that appellees were negligent in their failure to provide an adequate security system for appellant’s protection. Count III of the complaint alleges that Jennifer was a witness to the act of violence on her mother, and seeks damages for Jennifer’s emotional distress and mental pain and suffering as a result of the witnessing of this act. In Count IV of the complaint, appellant, as mother of Jennifer, seeks damages for medical expenses incurred in the treatment of Jennifer’s psychological injury, which resulted from the witnessing of her mother’s assault. Appel-lees moved to dismiss the two counts asserting that because there were no allegations therein of physical impact, appellant may not recover for emotional distress or mental pain and suffering. The trial court granted the motion to dismiss with prejudice.

Review of this case involves consideration of a judicially established precedent in Florida, often referred to as the impact rule. That rule has established that no recovery can be had for injuries resulting from mental pain and suffering or emotional disturbance unaccompanied by any physical impact in the absence of wantonness, willfulness or malice. Appellant urges this Court to recede from that doctrine in this case. To support that proposition, appellant relies on Stewart v. Gilliam, 271 So.2d 466 (Fla. 4 DCA 1972), in which the Fourth District rejected the impact rule as being “at variance with modern-day needs and with concepts of justice and fair dealing” and allowed the plaintiff there, who had suffered a heart attack shortly after being frightened when the defendant’s car struck her home, to present her case to the trier of fact. However, the Florida Supreme Court reversed the Fourth District Court of Appeal’s decision in Gilliam, stating:

“We do not agree that, especially under the facts of this case, there is any valid justification to recede from the long standing decisions of this Court in this area. There may be circumstances under which one may recover for emotional or mental injuries, as when there has been a physical impact or when they are produced as a result of a deliberate and calculated act performed with the intention of producing such an injury by one knowing that such act would probably — and most likely — produce such an injury, but those are not the facts in this case.” Gilliam v. Stewart, 291 So.2d 593 (Fla.1974).

In considering the rule previously, the Supreme Court, in Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950), said:

“. . . we do not feel constrained to extend this rule to cases founded purely in tort, where the wrongful act is such as to reasonably imply malice, or where, from the entire want of care of attention to duty, or great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages.”

While the impact rule is not so stringently applied as to thwart recovery in all cases in which mental anguish is unconnected with physical injury, the case sub judiee is not such a ease. It does not involve the exceptions set forth in Kirksey or Gilliam. Compare also Dowling v. Blue Cross of Florida, 338 So.2d 88 (Fla. 1 DCA 1976). The trial court correctly applied the long recognized impact rule to the facts of this case and did not err in dismissing Counts III and IV of appellant’s complaint.

We have considered appellant’s remaining point and find it to be without merit.

AFFIRMED.

MILLS and ERVIN, JJ., concur.