author: SCHEB, Judge.

text:
    STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. CAREER SERVICE COMMISSION, DIVISION OF PERSONNEL, STATE of Florida DEPARTMENT OF ADMINISTRATION and Stella M. Brumley, Respondents.
    No. 75-1840.
    District Court of Appeal of Florida, Second District.
    July 28, 1976.
    Douglas E. Whitney, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., and Carol L. Reilly, Asst. Atty. Gen., Tallahassee, for Career Service Commission.
    Stephen Lubow, Miami, for Stella M. Brumley.
   SCHEB, Judge.

Petitioner, Department of Health & Rehabilitative Services, seeks a writ of certio-rari to the Career Service Commission, as respondent, to quash the Commission’s order and thereby affirm the petitioner’s dismissal of the Respondent Stella M. Brum-ley, R.N. We decline to issue the writ.

Nurse Brumley, a Career Service employee, was assigned to the petitioner’s Sunland Training Center at Fort Myers. Her services were terminated by the petitioner on June 2, 1975, on charges of unauthorized j administration of drugs, exercise of poor; judgment in the practice of nursing, failure! to properly follow orders, and insubordina-; tion. She sought a review from the Respondent Commission as authorized by Fla. Stat. § 110.061.

After hearing, the Respondent Commission stated:

“. . . this Commission, finds that the action of the Agency dismissing the Appellant was too harsh and should be altered, and that the Agency failed to offer competent, substantial evidence to support the charges alleged against the Appellant. Accordingly, it is
ORDERED that the action of the j Agency dismissing the Appellant, Stella ' M. Brumley, be altered to a seven-day suspension, in lieu of dismissal, beginning June 2, 1975, to and including June 8, 1975.”

Petitioner contends the Respondent Commission’s action was not in accordance with the existing statutes or rules and regulations promulgated thereunder and was not based on substantial competent evidence.

The Career Service Commission in its review of suspensions, reductions in pay, transfers, layoffs, demotions or dismissals of employees who have permanent status in the Career Service under Fla.Stat. Ch. 110 is governed by Fla.Stat. § 110.061, which provides:

“Suspensions, dismissals, reductions in pay, demotions, layoffs and transfers—
(1) Any employee who has permanent status in the career service may only be terminated for cause by the agency or officer by whom he is employed.
(2)(a) The department shall establish rules and procedures for the suspension, reduction in pay, transfer, layoff, demotion and dismissal of employees in the career service for cause and for the investigation and hearing of appeals by the Career Service Commission on such actions.
(b) Written notice of such appeal shall be filed with the commission within twenty days from the date on which notice of suspension, reduction in pay, transfer, layoff, demotion or dismissal is mailed to the employee. All notices to the employee shall be in writing sent by certified mail with return receipt requested.
(c) The commission shall, within thirty days after hearing such appeal, make its finding and decision, copies of which shall be transmitted to the employee, the employing agency concerned, and the department.
(3) The Career Service Commission may order the reinstatement of an employee, with or without backpay, which order shall be conclusive on the agency or officer concerned. The order may include an amount to be determined by the commission and paid by the agency, for reasonable attorney’s fees, witness fees, and other out-of-pocket expenses incurred during the prosecution of an appeal against an agency in which the commission sustains the employee. The action of the commission shall be in writing and shall be served on the parties to such appeal either in person or by mail.
(4) The exercise by the Career Service Commission of the powers, duties, and functions prescribed by this section shall be reviewable only by the judiciary on the grounds that:
(a) The commission did not afford a fair and equitable hearing.
(b) The decision of the commission was not in accordance with existing statutes or rules and regulations promulgated thereunder.
(c) The decision of the commission was not based on substantial evidence.

The Commission’s role as a reviewing board has been defined by a series of judicial opinions during the past few years. In Florida Department of Health and Rehabilitative Services v. Career Service Commission, Fla.App.4th 1974, 289 So.2d 412, the petitioner had discharged one of its employees. The employee appealed and the Commission held that the employer “failed to prove conclusively its charges.” The court there issued its writ, holding that while the burden of proving the basis of termination does rest with the employing agency, the agency need only prove by “preponderance of evidence” that just cause for termination existed.

In Board of Regents v. Hopkins, Fla. App.1st 1975, 312 So.2d 775, the court held the Commission cannot find “just cause” for termination and then exercise its authority to change a dismissal to a suspension. Yet, even where the Commission has termed its order a “suspension,” and that order effectively reinstates the employee, the Commission acts within its authority and its findings should not be disturbed by the court if there is substantial competent evidence to support its order. Board of Regents v. Videon, Fla.App.1st 1975, 313 So.2d 433.

Petitioner argues the Commission cannot decide, as it did here, that dismissal is too harsh and then reduce the employee’s termination to a suspension. In support of its argument, petitioner cites State Department of Health v. Career Service Comm., Fla.App.1st 1975, 315 So.2d 18, where the employing agency dismissed some of its employees for violating their duties as psychiatric aides. On appeal, the Commission agreed the employees were “guilty”, but reduced their penalty to a suspension. On certiorari, the Commission’s order was quashed. Further, petitioner cites State Dept. of Administration v. Hunter, Fla. App.1st 1975, 323 So.2d 24, where after determining that there was “just cause” for the Department of Administration to have terminated some of its employees, the Commission changed the order of termination to a suspension for 90 days without pay. The court granted certiorari and held the Commission was without authority to alter or modify the order of dismissal.

Upon initial reflection, the cases make it understandably difficult to determine the true role of the Commission as an appellate body. Upon closer analysis, the decisions in Dept. of Health and Hunter, supra, relied upon by petitioner for the proposition that the Commission erred in ordering a suspension, are distinguishable. In these two cases, the Career Service Commission found that the employing agency acted with just cause in terminating its employees, but nevertheless, changed the termination to a suspension. In the case before us, the Commission expressly found that the “Agency [petitioner here] failed to offer competent, substantial evidence to support charges alleged against the Appellant [Brumley].” On oral argument the petitioner conceded its burden to prove before the Career Service Commission there was just cause for termination of the Respondent Brumley. Cf., Florida Department of Health and Rehabilitative Services v. Career Service Commission, supra, 289 So.2d 412. Our function is to review the Commission’s ruling to determine whether there was substantial competent evidence before it to support the findings made in the only administrative hearing provided the Respondent Brumley. See DeGroot v. Sheffield, Fla.1957, 95 So.2d 912; Erwin v. Florida State Board of Dentistry, Fla. App.2d 1975, 320 So.2d 2. Numerous witnesses testified for the petitioner and for the Respondent Brumley, and although the evidence was conflicting, the record contains ample evidence to support Respondent Brumley’s contention that she acted in response to orders. In its role as initial fact finder, the Commission has sole authority to determine the credibility of the witnesses. See McFail v. State Board of Dental Examiners, Fla.App.2d 1965, 173 So.2d 458. The Commission obviously placed considerable weight upon Brumley’s testimony and the evidence offered on her behalf.

The Commission’s authority is less clear in ordering that Nurse Brumley’s termination “be altered to a seven-day suspension.” Still, we must look to the substance and not the form of the order. The Commission is empowered to order reinstatement of an employee, with or without pay. It argues that, while inartfully worded, its order is tantamount to a reinstatement without pay for the period from June 2, 1975 to June 8,1975, and with pay thereafter. Thus, the Commission seeks to equate its order with the one entered in Videon, supra. It is indeed unfortunate that the Commission choose such language as “suspension”; however, by its action of having found that there was no competent substantial evidence to support the charges against Nurse Brumley, we are persuaded the Commission effectively reinstated her.

Accordingly, the petition for writ of cer-tiorari is denied.

HOBSON, Acting C. J., and GRIMES, J., concur.

      . We express no opinion on whether the role of this court or of the Commission might be different in a case where the employee first received a hearing before the employing agency. Cf., State Department of Health v. Career Service Comm., supra, 315 So.2d 18.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Robert KLING et al., Appellees.
    No. 76-361.
    District Court of Appeal of Florida, Second District.
    July 30, 1976.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.

      Denis M. de Vlaming and Raymond 0. Gross, Clearwater, for appellees.
   GRIMES, Judge.

The appellees were charged with felony possession of drugs and drug paraphernalia. They filed a motion to dismiss in which they stated that they had been guests for “a day or two” in the house where the drugs were seized by the police pursuant to a search warrant. They asserted that the drugs and paraphernalia were not in their possession and that they had no knowledge of their presence in the house. They further stated that charges of misdemeanor possession of other drugs and paraphernalia seized by the police at the same time had been dismissed upon their motion by a county judge. Thus, they argued that they were entitled to have the circuit court charges dismissed upon the doctrine of collateral estoppel. While observing that had he been the county judge he would not have dismissed the misdemeanor charges, the circuit judge believed that he was bound by the principles of Ashe v. Swenson, 1970, 397 U.S. 436, 25 L.Ed.2d 469, 90 S.Ct. 1189, and dismissed the charges. The state appeals the order of dismissal entered by the circuit judge.

The dismissal must be reversed for two reasons. First, in Ashe the Supreme Court announced that before collateral es-toppel would become applicable, it was necessary to show that the same issue had already been adjudicated in favor of the defendant. Ashe was acquitted of robbing one of a group of several persons playing poker. He was later convicted of robbing one of the other players. The court observed the single rationally conceivable issue in dispute in the first trial was whether Ashe had been one of the robbers. The holding of the court was that once a jury had determined by its verdict that the defendant was not one of the robbers, the state could not constitutionally litigate that issue again before a new jury.

In the instant case, the motions filed both in the county court and in the circuit court simply stated that the drugs and paraphernalia were seized in the house in which they had been staying as guests. In a case of constructive possession, much would depend upon where the illegal items were found. Differing results might well obtain with respect to drugs found in a common area of the house and drugs found in a defendant’s suitcase. See Spataro v. State, Fla.App.2d 1965, 179 So.2d 873. There was no showing in this record that the drugs and paraphernalia covered by the misdemeanor charges were located together with the drugs and paraphernalia upon which the felony charges were based. Thus, it cannot be said that the appellees carried the burden of proving that the county judge passed on the same issue that was before the circuit court. Busbee v. State, Fla.App.1st, 1966, 183 So.2d 27.

Second, and more fundamental, is the fact that even if all of the drugs and paraphernalia were in the same location when they were seized, the dismissal of the misdemeanor charges by the county judge does not bring into play the doctrine of collateral estoppel. In Ashe the majority opinion made it clear that collateral estop-pel in a criminal case was a part of the Fifth Amendment guarantee against double jeopardy. The only reason that Ashe could not be prosecuted for the second robbery was that he had already been placed in jeopardy for the first. Hence, it is necessary to consider what constitutes jeopardy.

In Serfass v. United States, 1975, 420 U.S. 377, 43 L.Ed.2d 265, 95 S.Ct. 1055, the district court had dismissed an indictment upon a procedure substantially similar to that which is contemplated by a motion to dismiss under RCrP 3.190. In the course of the government’s appeal from the order of dismissal, it became necessary to determine whether the defendant had suffered jeopardy, because if he had, the government was not entitled to an appeal. The U. S. Supreme Court held that jeopardy had not attached when the judge granted the motion to dismiss the indictment because the defendant “had not been ‘put to trial before the trier of facts, whether the trier be a jury or a judge.’ ” The court further observed:

“. . . Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.”

The court rejected the defendant’s contention that the disposition of his motion to dismiss predicated upon evidentiary facts outside of the indictment which would constitute a defense on the merits at trial was the functional equivalent of a trial on the merits. The court said that the word “acquittal” had no significance for purposes of the Double Jeopardy Clause “unless jeopardy has once attached and an accused has been subjected to the risk of conviction.”

The court in United States v. Linetsky, 5th Cir. 1976, 533 F.2d 192, recently interpreted Serfass with respect to a case in a posture somewhat similar to ours. A California district court had dismissed an indictment charging that the defendants had used the mails to send obscene advertisements and film on the premise that the materials in question were, as a matter of law, not obscene. The Ninth Circuit Court of Appeals had declined to issue a writ of mandamus directing that the judgment be vacated. Thereafter, the defendant was charged in Florida with violating the same statute by mailing the same materials into Florida. On an appeal from a conviction in the Florida district court, the court of appeals held the collateral estoppel doctrine of Ashe v. Swenson to be inapplicable because in obtaining the dismissal of the California indictment, the defendants had not run the risk of conviction by being put to trial before the trier of fact.

Our Supreme Court stated in State v. Grayson, Fla.1956, 90 So.2d 710:

“. . .A person is placed in jeopardy when he is put upon trial under an indictment or information sufficient in form and substance to sustain a conviction before a court of competent jurisdiction and a jury has been impaneled and sworn and charged with his deliverance. . .”

Since the appellees were never placed in jeopardy on the charges against them in county court, they are not entitled to rely upon the doctrine of collateral estoppel to uphold their claim of double jeopardy. The' orders of dismissal are reversed, and the cases are remanded for further proceedings.

BOARDMAN, Acting C. J., and SCHEB, J., concur.

      . There is a third reason why the dismissal might have been improper, but the state has not argued it. The appellees’ motions were verified but only by their attorneys. None of the facts set forth therein were within the personal knowledge of the attorneys. RCrP 3.190(c)(4) provides that the facts upon which a motion to dismiss is based shall be sworn to. Certainly, the rule contemplates an oath by a person having firsthand knowledge of the facts. Cf. State v. Love, 1940, 143 Fla. 883, 197 So. 534. However, the state did not dispute the facts at the hearing and has not contended on this appeal that the motions were insufficiently verified.


author: PER CURIAM.

text:
    Martin BOCANEGRA, Appellant, v. The STATE of Florida, Appellee.
    No. 75-830.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Pollack, Tunkey, Robbins, Weiner & Leen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of United States v. Burke, 495 F.2d 1226 (5th Cir.1974); United States v. Harper, 460 F.2d 705 (5th Cir.1972); United States v. Prieto-Olivas, 419 F.2d 149 (5th Cir. 1969); Williams v. State, Fla.1975, 316 So.2d 267; Hernandez v. State, Fla.App.1975, 323 So.2d 318; Ballard v. State, Fla.App.1975, 323 So.2d 297; Borders v. State, Fla.App.1975, 312 So.2d 247; Williams v. State, Fla.App. 1975, 307 So.2d 877; Starling v. State, Fla.App.1972, 263 So.2d 645; Grech v. State, Fla.App.1971, 243 So.2d 216; Patrick v. State, Fla.App.1967, 203 So.2d 62; Pessolano v. State, Fla.App.1964, 166 So.2d 706; and Rules 3.150, 3.151, and 3.152 Florida Rules of Criminal Procedure, 33 F.S.A.


author: McCORD, Judge.

text:
    CHIPOLA NURSERIES, INC., Appellant, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee. BUILDERS HOME, INC., et al, Appellants, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    Nos. BB-261, BB-262.
    District Court of Appeal of Florida, First District.
    July 19, 1976.
    As Corrected Aug. 3, 1976.
    Elaine N. Duggar of Richardson Law Offices, Tallahassee, for appellants.

      Geoffrey B. Dobson, Winifred Sheridan Smallwood, John F. Harris, Tallahassee, for appellee.
   McCORD, Judge.

On May 24,1974, the trial court entered a stipulated final judgment covering both of the above cases. It awarded appellants certain sums for the condemnation of their properties, such award providing that it covered the property taken and damages of any nature “except for interest as provided by law, which interest, together with attorneys’ fees and costs of these proceedings will be further set by this court.” Thereafter, on January 15, 1975, the court entered a partial judgment on costs based upon a stipulation. Appellants’ attorney contends that subsequently, on May 6,1975, he sent appellee a proposed stipulated order on interest but received no response; that he sent follow-up letters on October 17, October 31 and November 12; that appel-lee’s attorney responded by denying responsibility for interest. None of this correspondence was placed in the court file, but it was alluded to in argument before the trial court and is appellants’ explanation for the delay until January 28, 1976, in filing their “Motion for Entry of Order Assessing Interest.” After hearing, the trial court on February 10, 1976, entered its order ruling that, “This Court does not have jurisdiction to hear the defendant’s motion.” It ordered “that Defendants’ motion for entry of the Order Assessing Interest and Defendants’ motion for Attorneys Fees for this hearing are hereby denied.” Appellants have taken this appeal from that order.

Appellee contends that the trial court lost jurisdiction during the lapse between the entry of the “final” judgment and the filing of appellants’ motion for order assessing interest.

In Mills v. Beims, 132 So.2d 228 (Fla.2d DCA 1961), our sister court of the Second District held:

“The usual test as to whether a decree or order is final or interlocutory is whether or not the case is disposed of, and if a question remains open for judicial determination. Alderman v. Puritan Dairy, 1940, 145 Fla. 292, 199 So. 44; Cone v. Benjamin, 1940, 142 Fla. 604, 195 So. 416; 19 Fla.Jur., Judgments and Decrees, Sections 258, 259, and other cases therein cited.”

To the same effect the Supreme Court in Gore v. Hansen, 59 So.2d 538 (Fla.1952), quoting from previous opinions stated:

“ ‘A judgment is final when it adjudicates the merits of the cause and disposes of the pending action, leaving nothing further to be done but the execution of the judgment.’ Howard v. Ziegler, Fla., 40 So.2d 776, 777; Hoskins v. Jackson Grain Company, Fla.1952, 59 So.2d 24.”

In addition, the fact that a judgment is labeled “final judgment” does not make it a final judgment unless it is, in fact, such a judgment. In this connection the Supreme Court in Bancroft v. Allen, 138 Fla. 841, 190 So. 885 (1939), stated:

“Although this decree was entitled ‘Final Decree’ it did not terminate the case, but instructed the pendente lite trustee to amend the bill of complaint and proceed with further litigation. For that reason said order, although entitled ‘Final Decree’, can not be classed as a final decree as it did not terminate the case or finally adjudicate any of the issues.”

Since the trial court in the case sub judice, in its judgment of May 24,1974, specifically left the question of interest for future adjudication, that judgment was not a final judgment. Compare Hyman v. Hyman, 310 So.2d 378 (Fla.2d DCA 1975). The judicial labor in this cause not having been concluded, the trial court has jurisdiction to conclude it by ruling upon the reserved question. We point out, however, that taxing of costs after entry of final judgment does not render a final judgment any less final. Roberts v. Askew, 260 So.2d 492 (Fla.1972); Chatlos v. City of Hallandale, 220 So.2d 353 (Fla.1969); and Craft v. Clarembeaux, 162 So.2d 325 (Fla.2d DCA 1964). Costs must be taxed within a reasonable time following final judgment, however. Roberts v. Askew, supra. Appellee contends that the adjudication of interest in the case sub judice should be treated in the same manner as taxing of costs after final judgment and argues that appellants have delayed bringing the question before the trial court within a reasonable time and thus jurisdiction has been lost. We disagree and consider that adjudication of interest falls in a different category from costs. We, therefore, decline to extend the established law in relation to taxing of costs to the adjudication of interest. Costs arise out of the litigation itself and are not a claim or part of a claim which forms the basis for the suit.

Appellee also argues that to return the case to the trial court would serve no useful purpose as, under the statute, § 74.-061, Florida Statutes, appellants are not entitled to interest. This is a question which was not ruled upon by the trial court, and we, therefore, decline to consider it on this appeal.

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


text:
    Henry James EARLY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1460.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant, defendant below, appeals a final judgment of conviction and sentence, i. e., probation for five years, for grand larceny entered by the trial court after a nonju-ry trial. Appellant’s motion for a new trial was denied.

Appellant contends that the trial court erred in denying his motion for a new trial because the evidence was insufficient to support his conviction and the only evidence presented as to the value of the item stolen, a portable police radio, was inadmissible because it was hearsay.

We have carefully examined the record and have concluded that it contains substantial competent evidence to support the final judgment of the trial court. See Fotianos v. State, 329 So.2d 397 (1st D.C.A.Fla. op. filed April 1, 1976); Samet v. State, Fla.App.1973, 284 So.2d 450; Crum v. State, Fla.App.1965, 172 So.2d 24; Lee v. State, Fla.App.1963, 153 So.2d 351; and 2 Fla.Jur., Appeals § 344. Further, we have considered the other points raised by appellant on appeal and find them to be without merit. Therefore, for the reasons stated and upon the authorities cited, the final judgment of conviction and sentence appealed are affirmed.

Affirmed.


text:
    Katherine Sanders LACH, Appellant, v. Edward Paul LACH, Appellee.
    No. 75-1423.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Jacobi & Seidler, Coconut Grove, for appellant.
    Wolf & Schoninger, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See: Shaw v. Shaw, Fla.1976. 334 So.2d 13.


author: PEARSON, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. Robert SHUPACK, Respondent.
    No. 76-44.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Papy, Levy, Carruthers & Poole and Steven J. Cohen, Coral Gables, for petitioner.
    Harold M. Braxton, Miami, for respondent.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PEARSON, Judge.

We have been presented with a petition for certiorari to review two orders of the circuit court in an action by the respondent, Robert Shupack, against his own insurance company. The first order denied the petitioner Allstate Insurance Company’s motion to strike two counts of the plaintiff’s complaint. The first count with which we are here concerned in count 2, which claims punitive damage upon the ground that Allstate Insurance Company showed bad faith in the non-payment of no-fault benefits. Count 3 claimed damages for libel because the petitioner had answered an interrogatory propounded by the respondent by referring to matters which indicated that the respondent was intoxicated at the time of the accident.

Petitioner’s motion to strike these two counts was, in effect, a motion to dismiss the counts as having no legal basis in the law. We do not ordinarily review by certiorari an order denying a motion to dismiss a complaint. See the rule in Pullman Co. v. Fleishel, Fla.App.1958, 101 So.2d 188. We, therefore, decline at this time to review the denial of petitioner’s motion to strike the count of the complaint claiming punitive damages for failure to pay the claim for no-fault benefits under the policy issued by the petitioner.

Count 3 makes a claim grounded in libel seeking damages for matters contained in an answer to an interrogatory. Such a claim is so clearly barred by the decided cases that we have decided it is a departure from the essential requirements of the law. We, therefore, grant certiorari and quash that portion of the court’s order which denied the motion to strike the claim of damages for libel. See Taylor v. Alropa Corporation, 138 Fla. 137, 189 So. 230 (1939).

The second order on which petitioner seeks a review is an order requiring the production of the insurance adjustor’s file, including all correspondence between the insurance company and its attorneys. Orders on discovery are properly reviewed upon petition for certiorari where the order is a clear departure from the essential requirements of law. See Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541, 545 (1942). In the instance now before us, the record reveals that the merits of respondent’s claim for uninsured motorist benefits under his policy have not been determined and are now m the process of arbitration. We hold that until the merits of respondent’s claim to benefits have been determined, it is a departure from the essential requirements of law to require petitioner to produce its entire file and all correspondence with its attorneys relative to the claim. See Keir v. State, 152 Fla. 389, 11 So.2d 886 (1943). We, therefore, quash the order requiring the production of the adjustor’s file and the correspondence of the petitioner with its attorneys with the express provision that a motion for discovery of these matters may be made pursuant to respondent’s bad faith claim at such times as the merits of the uninsured motorist claim have been determined.

Accordingly, the orders reviewed are quashed in part, as above set forth, and certiorari is denied as to all other portions thereof.

It is so ordered.


text:
    Johnnyce B. WILLIAMS, Appellant, v. Gerard D. WILLIAMS, Appellee.
    No. 76-854.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    James L. Wall, Jr., Miami, for appellant.
    Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, Sinclair, Louis, Siegel & Heath, Miami, and Alan M. Rubin, Orlando, for appellee.
    Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

Affirmed on the authority of Carroll v. Carroll, Fla.App.1975, 322 So.2d 53.


author: BOARDMAN, Judge.

text:
    Charles Lamond PRIDGEN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1823.
    District Court of Appeal of Florida, Second District.
    July 28, 1976.
    Jack 0. Johnson, Public Defender, Steven H. Denman, Asst. Public Defender, and David S. Bergdoll, Research Asst., Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant, a minor, waived juvenile court jurisdiction and was charged with robbery and larceny of a motor vehicle. The waiver agreed to by the state noted that the possible sentences for the crimes charged were life and five years respectively. The waiver also provided that appellant would enter a plea of guilty to attempted robbery and larceny and that both of these crimes were felonies of the third degree with possible sentences to five years and/or $5,000. The waiver also provided that the state would recommend to the court concurrent sentences and rely on the presentence report.

Thereafter, pursuant to the plea bargain, appellant entered his pleas of guilty. The court agreed that it would accept the recommendation of the state attorney and the sentences would run concurrently. Whereupon, the court sentenced appellant to ten years for attempted robbery and five years for auto theft to be served concurrently. Appellant pointed out to the trial court that he was informed that both crimes were punishable by no more than five years and that any sentence would run concurrently. The court then set aside the sentences and announced it would resentence in accordance with the plea bargain. The court then imposed five-year sentences on each count to be served consecutively. Appellant filed a motion for mitigation of sentence which was denied. This timely appeal followed from the judgments and sentences.

This court has held in several cases that when the trial judge finds that he cannot in good conscience honor a plea bargain, he must affirmatively take action to permit the defendant the opportunity to withdraw his plea. Kiefer v. State, Fla.App.2d 1974, 295 So.2d 688, and cases cited therein.

Accordingly, we vacate the judgments and sentences and permit the appel-. lant to withdraw his pleas. Should he do so, the state would be permitted to prosecute appellant for the robbery and larceny of a motor vehicle since the reduction of the charges was part of the plea bargain.

REVERSED and REMANDED with directions to the trial court consistent with this opinion.

McNULTY, C. J., and SCHEB, J., concur.


author: McNULTY, Chief Judge.

text:
    John S. HAMILTON et ux., Appellants, v. LARGO PAINT & DECORATING INC., Appellee.
    No. 76-85.
    District Court of Appeal of Florida, Second District.
    July 28, 1976.
    John P. Frazer of Frazer & Hubbard, Dunedin, for appellants.
    Robin A. Vaillancourt & Gary A. H. Laursen of Vaillancourt & Laursen, Largo, for appellee.
   McNULTY, Chief Judge.

Appellants bring this interlocutory appeal from an order denying their motion to dismiss appellee’s complaint on the ground that the action was barred by the limitation period within the mechanic’s lien law. We agree with appellants and reverse.

On November 27,1972 the appellee Largo Paint and Decorating, Inc. recorded a claim of lien in the sum of $2,138.94 for the installation of certain carpeting in appellants’ residence. On February 22, 1973, Largo Paint and Decorating did file its complaint to foreclose the lien. More than two years thereafter, however, on April 14, 1975, when no action had been taken for more than one year, the trial court on its own motion and after due notice dismissed the suit for lack of prosecution pursuant to Rule 1.420(e), R.C.P.

Largo Paint and Decorating then filed a new suit on September 18, 1975, again seeking to foreclose its lien in Count I thereof and, alternatively in a Count II, praying for damages for breach of contract arising out of the same transaction upon which the lien was predicated. Appellants filed a motion to dismiss and to strike the mechanic’s lien count on the grounds that the cause was barred by the one year limitation period prescribed § 713.22(1), F.S. 1973, and to dismiss the breach of contract count as being less than the minimum jurisdiction of the circuit court. The trial court denied these motions on December 15, 1975 holding that, although the mechanic’s lien law requires suit to be brought within one year from the filing of the claim of lien, the statute was tolled during the period within which the first suit was pending. We disagree.

It appears settled in Florida that when an action is dismissed for lack of prosecution the time during which it is pending does not toll a statute of limitations and cannot be deducted from the total elapsed time in computing such statute. The error is patent.

It follows, therefore, that the foreclosure count of the complaint herein must fall. As a consequence, the remaining count praying for damages in a sum less than the minimum jurisdiction of the circuit court should be transferred to the county court pursuant to Rule 1.060(a), R.C.P.

In view whereof, the order denying appellants’ motion to dismiss and strike the lien foreclosure count should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON and GRIMES, JJ., concur.

      . See Barrentine v. Vulcan Materials Company (Fla.App.1st, 1968), 216 So.2d 59. Also cf. Harris Paint Company v. Multicon Properties, Inc. (Fla.App.1st, 1976), 326 So.2d 43.


author: RAWLS, Acting Chief Judge.

text:
    GENERAL ELECTRIC COMPANY, a corporation, Appellant, v. COMMERCIAL STANDARD INSURANCE COMPANY, a corporation, Appellee.
    No. AA-213.
    District Court of Appeal of Florida, First District.
    July 30, 1976.

      Philip C. Owen, of Fischette, Parrish, Owen & Held, Jacksonville, for appellant.
    George Stelljes, Jr., of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellee.
   RAWLS, Acting Chief Judge.

The sole issue in this appeal is whether appellant-plaintiff’s cause of action is governed by the five-year statute of limitation as prescribed in Section 95.11, Florida Statutes, or by the one year statute as set out in Section 713.23, Florida Statutes. The trial judge, in dismissing plaintiff’s complaint, held that the one year statute was applicable. We reverse.

Plaintiff’s complaint alleged that it furnished certain equipment and appliances to a contractor who utilized same in the performance of construction work in Duval County, Florida. A further allegation was that the contractor had executed a payment bond providing for payment to persons furnishing labor and materials in the performance of said construction work. The complaint also alleged that although the bond was purportedly given in accordance with Section 713.23, Florida Statutes, that such was not the case, because the statute provides that a bond given pursuant to it shall be in at least the contract price, whereas the instant bond was only in ten percent of the contract price.

Appellee-defendant argues that the amount of the bond is immaterial because, admittedly, plaintiff’s claim is in an amount substantially less than the amount set forth therein. Section 713.23, Florida Statutes, provides, inter alia:

“. . . The payment bond required to exempt an owner under parts I and II of this chapter and chapter 85 shall be furnished by the contractor in at least the amount of the original contract price No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after one year from the performance of the labor or completion of delivery of the materials and supplies. . . .” (emphasis supplied)

Although the subject bond is entitled “Statutory Payment Bond Pursuant to Sections 713.02(6) and 713.23, Florida Statutes”, such statement does not make it such, because it was not in at least the amount of the original contract price and thus not as required in Section 713.23. Since the purported statutory bond was not furnished in accordance with the requisites of the clear terms of Section 713.23, Florida Statutes, defendant is not protected by the one year limitation provision of the statute. United Bonding Ins. Co. v. City of Holly Hill, 249 So.2d 720 (1 Fla.App.1971).

REVERSED with directions that plaintiff’s complaint be reinstated.

McCORD and SMITH, JJ., concur.

      . The construction contract required “10% Performance and payment bonds”.


text:
    Fredric Winton ALTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1232.
    District Court of Appeal of Florida, Second District.
    July 30, 1976.
    Richard A. Lazzara, of Levine, Freedman & Hirsch, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

The trial court denied the appellant/defendant’s motion to suppress evidence on grounds that a police search of the defendant’s car was a valid inventory search. We reverse.

Defendant’s arrest occurred approximately one block from his home after the defendant lost control of his automobile as a result of a slight accident following a high speed chase by the police. After the arrest two officers conducted an inventory search of the defendant’s car and found in excess of 5 grams of marijuana in the glove compartment. No search warrant was obtained and no claim was made that the defendant consented to the search. Nor was any contention made that the officers had probable cause to believe the defendant had contraband in his vehicle. Defendant moved to suppress. No evidence was taken on defendant’s motion, however defense counsel outlined the factual situation and the prosecutor agreed. It was stipulated the defendant had requested permission from the officers to make arrangements for someone else to take care of his car. In fact, from the stipulation it appears the defendant’s friend was available on the scene to take charge of his car rather than have it impounded by the police.

After reviewing the stipulation and hearing argument of counsel, the trial judge denied the defendant’s motion to suppress. Thereafter, defendant pled nolo contendere to possession of more than 5 grams of marijuana in violation of P.S. § 893.13(l)(e). As authorized in State v. Ashby, Fla.1971, 245 So.2d 225, the trial court received the defendant’s plea with reservation of right to appellate review of the legality of the seizure of the evidence.

The sole question on this appeal relates to the legality of this “inventory” search made by the police pursuant to impounding the defendant’s car.

While we have not been cited to any opinions by the Supreme Court of Florida on this subject, questions involving inventory searches of vehicles impounded by the police have been reviewed on several occasions by the appellate courts of Florida since Miller v. State, Fla.App.2d, 1962, 137 So.2d 21, wherein this court held that a police officer properly performed his duty to protect the owner’s property by securing those valuables which were in plain sight and by impounding the automobile but that it was unreasonable for the officer to have dug beneath the floor mat from which he uncovered some lottery tickets. In that case appellant had been found unconscious following an automobile accident, and the car was impounded. The officer went to the hospital, made an illegal arrest of the appellant and then returned to the car and made the search after it has already been safely impounded.

Our next judicial venture in this area of the law was in Godbee v. State, Fla.App.2d, 1969, 224 So.2d 441, where the defendant had been lawfully arrested on a fugitive warrant but had escaped leaving his automobile illegally parked. The court, speaking through Judge McNulty, held that the police officers were entitled to search defendant’s automobile without a warrant for the sole purpose of making an inventory of the contents even though probable cause did not exist for issuance of a search warrant and the search was not incident to an arrest. Judge McNulty distinguished Miller, supra, where there was no lawful arrest and the search was essentially an exploratory one predicated on suspicion of the police. Godbee, however, points out the true basis on which courts uphold inventory searches, i. e., that under routine police procedure it is essential when impounding a car to inventory it and its contents for preservation thereof as well as to insulate the police and garage owner from responsibility in the event of theft or destruction. However, in Godbee Judge McNulty included the following caveat:

“. . .. The reasonableness of any search without a warrant is measured from the standpoint of the conduct of the searchers. If their conduct is in some way reprehensible; or if they precipitate a search and are motivated therein solely by a desire to ‘hunt’ for incriminating evidence; or if they do so without any plausible explanation or justification; the invasion is an unreasonable one. Here the tests have been met, and there is no evidence in this record from which it can be said that the officers did not act in good faith and in the prudent discharge of their official duties. There was ample justification for taking the ear into custo dy in the first place, and reasonable cause to inventory it. 224 So.2d at 443. (Emphasis supplied.)

Thus, in considering the validity vel non of an inventory search, it becomes essential to initially determine whether it is necessary for the police to conduct the search. In Urquhart v. State, Fla.App.2d, 1971, 261 So.2d 535, we held an inventory search valid where the defendant was arrested for speeding, careless driving and for drinking. After Urquhart was placed in a police car, an inventory was made of the contents of his vehicle for the purpose of impounding it. During the inventory the police uncovered certain items which led to the defendant’s arrest and conviction on a breaking and entering offense. Relying on Godbee and Gagnon v. State, Fla.App.3d, 1968, 212 So.2d 337, this court found nothing wrong with the procedure. But in concurring specially in the denial of rehearing in Urquhart, Judge Mann pointed out that while the right of citizens against dangerous drivers is more important than the individual’s right not to have his car towed away, still the individual’s right of privacy is superior to the power of the police to impound the car unnecessarily. Thus he cautioned enforcement officers “. . . [they] would make a grave mistake in relying excessively and unnecessarily upon inventory searches as a way around the Fourth Amendment.”

In State v. Volk, Fla.App.2d, 1974, 291 So.2d 643, the trial judge suppressed evidence produced in consequence of an inventory search of a motor vehicle. On appeal this court affirmed, finding that there was no necessity for impounding the vehicle and that such impoundment was done contrary to the usual procedure followed in traffic cases. In Volk, this court’s opinion referred to other authorities indicating that where other drivers were available to remove an arrestee’s car to a safe place that such was an alternative to the need for police custody and impoundment. Thus, necessity has always been considered by this court to be a threshold requirement to validate a war-rantless nonconsensual search of an automobile where the search was beyond that incident to a valid arrest and one not based upon probable cause.

A series of recent decisions of our sister courts indicates their accord with this prerequisite. In State v. Jenkins, Fla.App.4th, 1975, 319 So.2d 91, while upholding an inventory search as being reasonable, the Fourth District stressed that where the position of a car did not create a hazard an individual should be afforded the choice of leaving his car in its location or calling someone else to take possession of it. And in Weed v. Wainwright, Fla.App.4th, 1975, 325 So.2d 44, that court held that where there was no reason for search of defendant’s car after an officer had arrested its occupants, that such a search was illegal when the officers merely presumed the car “unattended.” There the owner’s car was left parked during business hours at a parking lot furnished by a grocery supermarket. Finally, in Chuze v. State, Fla.App.4th, 1976, 330 So.2d 166, a police officer had arrested the defendant and given him the option of calling his automobile club to remove his vehicle from the scene of the arrest. The defendant called his motor club; however, before its tow truck could arrive additional officers arrived on the scene. These newly arrived officers proceeded to conduct what they termed an inventory search preparatory to having the police tow and impound the vehicle. As in the case before us, the search in Chuze yielded marijuana in excess of 5 grams. Chuze pled nolo contendere and appealed from denial of his motion to suppress the evidence seized from his automobile. In reversing, the Fourth District concluded that such a search was not an inventory search conducted in good faith but rather a pretext for a warrantless exploratory search of defendant’s vehicle which violated the defendant’s rights under the Fourth Amendment to the United States Constitution.

Likewise, in a forfeiture proceeding In Re 1972 Porsche 2-door, Fla.App.3d, 1975, 307 So.2d 451, the Third District found there was no necessity to justify the police having towed away a car and conducted a search thereof for inventory purposes where the defendant was arrested at someone else’s residence and his car was legally parked on a public street outside his friend’s residence. More recently, the First District in Benton v. State, Fla.App.1st, 1976, 329 So.2d 385, held an inventory search was unjustified where the defendant was arrested for reckless driving and there was no indication that his car was illegally parked and the owner refused to grant permission to have his car taken to the police station.

On the other hand, numerous cases have upheld the officer’s right to take possession of the vehicle and conduct an inventory search. See, for example, State v. Cash, Fla.App.1st, 1973, 275 So.2d 605, where the ear was on a motel parking lot and the owner of the lot requested that it be removed.

A common pattern running through these cases is that the police must act in good faith and not use the inventory procedure as a subterfuge for a warrantless search of a vehicle. A prime criterion to determine if the police have taken lawful custody of a motor vehicle is whether or not it is justifiable for the police, acting under routine police procedure, to become bailees of the vehicle. Here it was stipulated the defendant desired and had the ability to have his car removed by someone without intervention of the police. Therefore, the underlying necessity for police custody did not exist. When the driver of a motor vehicle is arrested and a reliable friend is present, authorized and capable to remove an owner’s vehicle which is capable of being safely removed; or where the arrestee expresses a preference as to towing service and designates an appropriate carrier and destination for the vehicle, it is unnecessary for the police to impound it. In either of these instances the rationale for an inventory search does not exist.

Our comment on the prerequisite of necessity for impoundment as the threshold to justify an inventory search is a timely caveat to law enforcement officers particularly in view of the recent opinion of the United States Supreme Court in South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 48 L.Ed.2d -, 19 CrL 3314, opinion filed July 6, 1976. In Opperman the respondent’s car had been impounded after it was discovered by police illegally parked in a “tow away” zone. Following standard police procedures, officers inventoried its contents and discovered marijuana in the glove compartment, for the possession of which respondent was subsequently arrested. After his motion to suppress the evidence was denied, he was convicted. The Supreme Court upheld the police procedures as reasonable under the Fourth Amendment pointing out that the protective search was carried out in accordance with the standard police procedures and was constitutionally permissible.

Interestingly, in Opperman the respondent’s motion to suppress challenged the inventory only as to items inside the car not in plain view. The court noted however that once the police were lawfully inside the car and inventoried personal property in plain view, it was not unlawful to unlock the glove compartment to which vandals would have ready and unmolested access once inside the car. It is not necessary and we do not pass on the question of the scope of the search before us since we hold that the threshold requirement of necessity to make an inventory search was not present in this case.

We also note that while Opperman was not primarily concerned with the authority of the police to take the car into custody, the Supreme Court mentioned several circumstances which do justify such an im-poundment: to permit the flow of traffic, preserve evidence, or remove an illegally parked car which jeopardizes both public safety and the efficient movement of vehicular traffic. -U.S.-, 96 S.Ct. 3092, 19 CrL at 3315. This is consistent with the Florida cases that require necessity for im-poundment before the inventory search can be justified.

Reversed.

HOBSON, Acting C. J., and GRIMES, J., concur.

      . See also the excellent Annotation at 48 A.L.R.3d 537 on Lawfulness of “Inventory Search’ ■ of Motor Vehicle Impounded by Police.

      . Florida courts have also upheld inventory searches in the following cases: Gullo v. State, Fla.App.4th, 1973, 280 So.2d 501; State v. Galloway, Fla.App.3d, 1972, 266 So.2d 53; State v. Ruggles, Fla.App.3d, 1971, 245 So.2d 692; Knight v. State, Fla.App.3d, 1968, 212 So.2d 900; Gagnon v. State, Fla.App.3d, 1968, 212 So.2d 337; Roush v. State, Fla.App.3d, 1967, 203 So.2d 632; Jackson v. State, Fla.App.3d, 1966, 192 So.2d 78. Cf. Mattson v. State, Fla.App.1st, 1976, 328 So.2d 246, in which the court found the car was lawfully impounded but then upheld a subsequent search on grounds of probable cause rather than on an inventory search.

      . Of course, as the court implied in Chuze, supra, the police need not wait an unreasonable length of time to accommodate the owner’s wishes.

      . The Court cited Godbee v. State, Fla.App.2d, 1969, 224 So.2d 441, as Florida authority in support of the proposition that State courts have overwhelmingly concluded that, even if an inventory is challenged as a “search”, such an intrusion is constitutionally permissible.


text:
    Paul A. SCHMIDT, Appellant, v. John P. MUELLER et al., Appellees.
    No. 75-1097.
    District Court of Appeal of Florida, Second District.
    July 30, 1976.
    George O. Kluttz of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellant.
    Daniel A. Carlton of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellees.
   SCHEB, Judge.

Appellant/plaintiff contends the trial court erred in dismissing his case on the ground the real party in interest was not before the court. We agree and reverse.

Plaintiff Schmidt sued appellees/defend-ants contending the defendants Muellers were liable to him for a real estate commission and that the defendaht Gram interfered with his contractual relationship with the Muellers. During the non jury trial the plaintiff alluded to having incorporated his real estate business thereby assigning his business assets to Paul Schmidt, Inc., the new corporation of which he was president. Defendants Muellers moved to dismiss on grounds the new corporation was not before the court as a party-plaintiff.

The trial judge dismissed the action holding . . that the corporation had not been substituted as party Plaintiff; that the real party in interest was, therefore, not within the jurisdiction of this Court and the action should be dismissed.” In its order of dismissal the trial judge noted the plaintiff had made an oral motion to substitute the newly-formed corporation as plaintiff but the court found “. that the Motion is too late.” Plaintiff Schmidt’s petition for rehearing was denied and this appeal ensued.

Rule 1.260(c), RCP, provides:

“(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.”

The Rule is explicit. And once the trial judge concluded the plaintiff had transferred his cause of action to his newly-formed corporation two alternatives were available to the court: (1) to allow the action to be continued in the name of the plaintiff Schmidt; or (2) to allow Paul Schmidt, Inc. to be either substituted for or joined with the original party-plaintiff. See Miami Airlines, Inc. v. Webb, Fla.App.3d, 1959, 114 So.2d 361.

Defendants Muellers fail to show that any prejudice would have occurred unto them by the action being continued in the name of the plaintiff Schmidt. In effect they point to no real obstacle to exercise of the first alternative by the court. They do argue, however, that had the plaintiff been allowed to join or substitute the corporation that they would be compelled to respond to a claim brought by an unknown corporation whose interest and status would have been unknown to them. The simple answer is that Florida Rules of Civil Procedure are sufficiently flexible to allow the court to grant any further relief by way of continuance, discovery or otherwise to protect the defendants even if the court chose to exercise the second alternative.

Accordingly, the order of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.

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


author: SMITH, Judge.

text:
    Edward James WHALEN, Appellant, v. STATE of Florida, Appellee.
    No. AA-488.
    District Court of Appeal of Florida, First District.
    July 28, 1976.

      Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Convicted of robbery and sentenced to a term of confinement for 99 years, Whalen’s sole contention on appeal is that the trial court erred in denying his motion for continuance which was presented on the day of the scheduled trial.

Two court-appointed psychiatrists examined Whalen two months before trial and submitted written reports — one seven weeks and the other 17 days before the scheduled trial — to the effect that Whalen was competent to assist counsel but that the examiners lacked sufficient information to ascertain his competency at the time of the alleged offense. Both reports revealed an extensive history of psychiatric disorder and treatment which Whalen related to the psychiatrists and, presumably, to his lawyer.

On Friday before the scheduled Monday trial, the trial judge routinely entered an ex parte order, as requested by defense trial counsel, for yet another psychiatric examination. By then, apparently, defense counsel had awakened to the necessity of gathering the scattered details of Whalen’s prior medical history and was in a position to submit a more substantial history of psychosis for expert evaluation. Yet counsel apparently could not, or at least did not, prevail on the newly-appointed psychiatrist to examine and evaluate Whalen over the weekend before trial. The result was that the trial judge was confronted at 11:30 on the morning of trial with a motion for continuance based on the propositions that the prior examinations were hampered by lack of sufficient information and that “we [the defense] had assumed that these doctors would obtain this information, and when we found out they didn’t, then we sent off and got them ourselves for the doctors’ benefit”. The jury venire for the case was to report for service that afternoon. The motion for continuance was denied on objection of the state attorney, who had arranged for the appearance in Ocala of several local witnesses and one from Tallahassee.

Following the guilty verdict and as part of the pre-sentence investigation, Whalen was finally examined by the third psychiatrist. His report was in many respects entirely consistent with the reports of the two earlier examinations but it also emphasized the possibility that Whalen’s excessive consumption of alcohol — which Whalen had earlier denied — produced “fugue-like personality changes [enjgrafted on top of his basically psychotic personality” and that:

“Since the patient has no recall of the robbery in question and no recall of his state of mind at that time it is difficult to form an opinion as to whether he really knew the difference between right and wrong relative to the alleged act at the time of the alleged act. It seems likely that Mr. Whalen as we see him today, was not in full possession of his faculties and did not know the difference between right and wrong at that time.”

Although it is not entirely clear from the record, we may assume that the divergence in professional opinions was due at least in part to the more substantial history made available to the third psychiatrist.

The trial judge acted within proper discretionary limits in denying the motion for continuance. Whalen’s trial counsel represented him for more than three months before the scheduled trial and had ample opportunity to collect Whalen’s medical records and verse his psychiatric examiners thoroughly in Whalen’s history. Yet counsel sanguinely “assumed” that the psychiatrists would adequately inform themselves. Even when it became, evident that they had not done so, counsel did not timely move for a continuance to better prepare an insanity defense. Given the defendant’s opportunity to fully develop his defense and the delay and inconvenience which a sudden continuance would have cast on the jurors, witnesses, court and prosecutor, we decline to. fault the trial judge for failing to prophesy on ths day of trial the results of the future examination by the third psychiatrist. There was no error in the denial of a continuance. Coney v. State, 258 So.2d 497 (Fla.App.3d, 1972), cert. den. 262 So.2d 448 (Fla.1972); Girtman v. State, 270 So.2d 380 (Fla.App.3d, 1972).

AFFIRMED.

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


text:
    Lillie Mae THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. AA-82.
    District Court of Appeal of Florida, First District.
    July 30, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon appellant being put to trial on the charge of possession of a controlled substance, to wit: heroin, with intent to sell, the jury returned a verdict of guilty to the lesser included offense of possession of a controlled substance, to wit: heroin. The trial court entered its “Judgment and Sentence” adjudicating appellant guilty of possession with intent to sell and sentenced appellant to five years imprisonment. Although the sentence of five years is consistent with the lesser included offense of possession, it is obvious that the judgment of conviction does not comport with the jury’s verdict. Therefore, this cause is reversed with directions that the trial court enter a judgment in conformity with the jury’s verdict.

We have carefully reviewed the briefs and record and find that no error of sufficient magnitude occurred during the trial of appellant which would require setting aside the guilty verdict rendered by the jury.

Affirmed in part; reversed in part.

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


author: MILLS, Judge.

text:
    In re ESTATE of Beatrice S. RASMUSSEN, Deceased. John B. MATTINGLY, Petitioner, v. Honorable Edwin DUFF, II, Sheriff of Volusia County, Respondent. John B. MATTINGLY, Appellant (Executor), v. The Honorable J. Robert DURDEN, Circuit Judge, Probate Division, Seventh Judicial Circuit, Appellee (Judge).
    Nos. Y-203 and 293.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1975.

      John R. Lawson, Jr. and John Radey, Holland & Knight, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., and Isham Adams, Daytona Beach (in Y-293 only), for appel-lee.
   MILLS, Judge.

The executor seeks review of an order of commitment rendered by the Probate Division of the Volusia County Circuit Court which adjudges him guilty of contempt, and commits him to jail until he complies with the court’s order which directs him to produce copies of documents pertaining to his administration of the estate. Before filing this interlocutory appeal, the executor filed a petition for writ of habeas corpus with this court which the court granted pending disposition of the appeal. The issues raised here are: (1) whether the order of commitment is for civil or criminal contempt; and (2) whether an executor may invoke the privilege against self-incrimination when ordered to produce copies of records pertaining to his administration of an estate.

Mattingly was executor of the Rasmussen Estate from 1 July 1965 until it was closed by blanket order on 20 November 1972. On 3 April 1975, the court of its own motion reopened the estate, because it found that Mattingly had neglected to perform the duties required of him by law; he had neglected to distribute a bequest of $1,234.46 to the Deland Public Library, and he had converted this sum to his own use. Because of its findings, the court issued an order directing Mattingly to show cause why he should not be held in contempt for failure to pay the bequest; ordered Mat-tingly to explain the transfer of the $1,234.46 from the estate account to his personal trust or escrow account; and ordered Mattingly to produce all deposit slips, bank account books, cancelled vouchers, receipts and all other documents pertaining to his administration of the estate. Before the show cause hearing, Mattingly paid the bequest to the Library and filed its receipt and release. At the hearing, he filed his response to the order stating that he could not locate his estate file, but was continuing his search, and would inform the court as soon as he located it; he testified to the same. The court pointed out that the estate file contained an order of distribution, based on Mattingly’s petition therefor, requiring a distribution of $10,790.21 to the Presbyterian Church of Deland and $7,234.47 to the West Volusia Memorial Hospital, but the file contained no receipts or other indication that these disbursements had been made. Mattingly was unable to recall the actions taken by him in the administration of the estate. At the request of Mattingly, the hearing was continued to a later date. At the subsequent hearing, Mattingly informed the court that he had located the documents required by the court’s show cause order, but refused to produce them on the ground that they might incriminate him. Mattingly raised the privilege against self-incrimination, because there were criminal and bar grievance proceedings pending against him concerning similar circumstances. The court held Mattingly in contempt, and committed him to jail until he produced the documents.

Mattingly contends the proceeding was for indirect criminal contempt, therefore, he was entitled to a bill of particulars. Apparently, the Judge considers the matter a civil contempt.

A criminal contempt proceeding is instituted solely to vindicate the authority of the court or punish for conduct offensive to the public in violation of a court order. In a civil contempt proceeding, an offended party is seeking personal relief. Direct contempt is committed in the presence of the court; indirect contempt is committed out of the presence of the court. When imprisonment is ordered in a criminal contempt proceeding, it is punitive in nature, and is for a fixed term. In a civil contempt proceeding, the imprisonment is coercive in nature, and is made contingent upon compliance with the court’s order. Usually a criminal contempt proceeding is brought in the name of the public, while civil contempt is brought in the name of the party for a personal wrong committed against him in violation of the court’s order. Demetree v. State, 89 So.2d 498 (Fla.1956).

Often, it is difficult to determine whether an act is civil or criminal contempt. The act may have characteristics of both. We are confronted with such a situation here. Under the circumstances of the case before us, it is our opinion that the major factor to be considered is the purpose for which the court exercised its contempt authority. Mattingly had petitioned the court for an order of distribution to certain beneficiaries; the order was rendered, but after about two and one-half years the estate file contained no information which indicated the distribution had been made. In the interest of the estate, of the beneficiaries, and of the proper administration of the estate, the court ordered the executor to produce his file pertaining to his administration of the estate, so that the court could determine whether the executor had performed the duties required of him by law.. When the executor refused to produce the records, the court inflicted coercive punishment, contingent upon production of the records. The contempt proceeding conducted by the court in this case was for civil contempt. It is interesting to note that the executor seeks review by interlocutory appeal which is the proper method to follow when seeking review of a judgment of civil contempt; if, as the executor contends, this was a criminal contempt, the executor should have brought a full appeal. Local Lodge No. 1248 of International Ass’n of Machinists v. St. Regis Paper Co., 125 So.2d 337 (Fla.App. 1st, 1961).

The privilege against self-incrimination is a personal one. The individual and his records are both constitutionally protected. However, this immunity is designed to protect personal documents or papers, or at least those in his possession in a purely personal capacity. State v. Dawson, 290 So.2d 79 (Fla.App. 1st, 1974). The documents sought in the case before us were not personal to Mattingly; they were documents which he was required to prepare or keep in carrying out his fiduciary duties as executor of the estate. We agree with the probate court that the executor, Mattingly, was not entitled to the constitutional protection sought by him. To hold otherwise, would permit a fiduciary to neglect his duties, and then to refuse to comply with a court order, which seeks to compel him to comply, by taking the “fifth”. We do not mean that an individual serving in a fiduciary capacity is prohibited from asserting his privilege against self-incrimination as to purely personal documents which may be located in the file or records maintained by him in his fiduciary capacity.

The interlocutory appeal is dismissed, and the writ of habeas corpus is quashed.

BOYER, C. J., and TENCH, Associate Judge, concur.


text:
    Tommy F. TUCKER and Pauline Tucker, his wife, Appellants, v. Johnny Berry WALKER, et al., Appellees.
    No. 75-1607.
    District Court of Appeal of Florida, Second District.
    July 28, 1976.

      J. L. Skip Miller of Miller & Anderson, St. Petersburg, for appellants.
    Edward M. Waller, Jr. of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for Johnny Berry Walker and Ins. Co. of North America.
   SCHEB, Judge.

Appellants, Tommy F. Tucker and his wife Pauline, were plaintiffs below. They sued the defendants/appellees, Johnny Berry Walker, Insurance Company of North America, Frederick J. Schmidt, and State Farm Insurance Company, alleging that on June 29,1973, Mr. Tucker was injured while a passenger in a vehicle, owned and operated by Walker, which struck the Schmidt vehicle ahead of it.

Tucker claimed damages for injuries to his head, shoulder and arm resulting from the accident with Walker, even though he had injured the same parts of his body in a later accident on July 7, 1973. Defendants denied all material allegations and affirmatively defended on the ground they were exempt from tort liability since plaintiff Tucker failed to meet the “no-fault threshold requirements” under the Florida Automobile Reparations Reform Act, Fla.Stat. Ch. 627.

At trial, plaintiff Tucker offered evidence of medical expenses in excess of $1,000. His physicians testified that his injuries were permanent but they were unable to apportion those injuries as between the two accidents. The examining physician for the defendants testified that Tucker’s disability pre-dated either accident. The defense contended that most, if not all, of the plaintiff’s medical expenses were not the result of the accident caused by defendants. In special verdicts, the jury found the plaintiff Tucker did not sustain a permanent injury and did not incur medical expenses in excess of $1,000 as a result of the accident of June 29, 1973.

Plaintiffs moved for a new trial. Alternatively, they sought to dismiss without prejudice since the jury found Tucker failed to meet the threshold requirements. Both motions were denied and final judgment was entered in favor of the defendants. This appeal ensued. Plaintiffs contend the trial court should have dismissed their suit without prejudice once the jury found that plaintiff failed to establish either injuries or medical expenses in excess of $1,000, as required under Fla.Stat. § 627.737. We disagree and affirm.

Once a final judgment is rendered on the merits of a cause by a court of competent jurisdiction, that judgment becomes conclusive on the questions and facts which were in issue and constitutes a bar to a subsequent suit involving the same subject matter. Thus, under the doctrine of res judicata, the parties may not relitigate matters already litigated and determined in a prior suit, Gordon v. Gordon, Fla.1952, 59 So.2d 40; Shirley v. Shirley, Fla.App.2d 1958, 100 So.2d 450. Here, the plaintiffs pled and offered evidence of the permanency of Tucker’s injuries and medical expenses in excess of $1,000, resulting from the alleged negligence of the defendant Walker. The jury found to the contrary. Once the jury found against the plaintiffs on these questions, the final judgment became res judicata as to those issues.

Plaintiffs argue, however, that Lasky v. State Farm Ins. Co., Fla.1974, 296 So.2d 9, mandates a different result. In Lasky the Supreme Court upheld the constitutionality of the permanent injury and medical expense thresholds of Fla.Stat. § 627.737. There, the trial court dismissed the plaintiff Lasky’s complaint with prejudice where he had not passed the threshold requirement of incurring in excess of $1,000 medical expenses. On appeal, the Supreme Court held such dismissal should have been without prejudice, otherwise, Lasky would be barred from any recovery despite his subsequent qualification to sue. See also Smith v. U. S. Fidelity and Guaranty Co., Fla.App.1st 1974, 305 So.2d 216. But unlike in Lasky and Smith, supra, here the plaintiff claimed to have met the thresholds of permanency and medical expenses, but those issues were resolved against him by the jury.

The judgment entered herein does not bar the plaintiffs from bringing a later action within the limitations period, should Tucker sustain medical expenses in excess of the $1,000 threshold requirement of Fla. Stat. § 627.737(2) subsequent to the trial of this cause.

We have considered and find no merit in the other points raised by plaintiffs. Accordingly, the judgment appealed from is affirmed.

HOBSON, Acting C. J., and GRIMES, J., concur.

      . A summary judgment in favor of Schmidt and his insurer, State Farm, was not appealed.

      . The plaintiff could have requested and the court directed that a special verdict be entered to determine the actual medical expenses attributable to the accident of June 29, 1973. In such an instance a plaintiff who accrued medical expenses subsequent to date of the jury verdict could achieve the threshold by adding these new expenses to the amounts previously determined. No such request was made here. Rather, it is patent from the evidence and argument of counsel that the plaintiff concluded his medical bills were all attributable to the negligence of the defendant Walker. The jury found otherwise and there is no way this court can now determine which, if any, of the expenses amounting to less than $1,000 were attributable to Walker’s negligence.


author: WALDEN, Judge.

text:
    STATE of Florida, Appellant, v. Rocky Ray DARNELL et al., Appellees.
    No. 75-1324.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellees.
   WALDEN, Judge.

This appeal concerns the validity of an administrative order of the 18th Judicial Circuit (not approved by the Supreme Court of Florida) which circumscribes the power of the State to re-file an Information subsequent to a nolle prosequi.

What happened can be gained from the appealed order of dismissal:

“1. That on March 11, 1975, Information # 75-195-CFA, B, C, was filed against these Defendants charging them with the offense of Conveying Tools Into Jail, a Violation of Florida Statute 843.11, and the offense of Contraband in County Detention Facility, a Violation of Florida Statute 951.22. On March 17, 1975, the Defendants were arraigned and trial set for May 5, 1975.
“2. That on May 9, 1975, the State Nolle Prosequied the foregoing information.
“3. That on May 9, 1975, Information # 75.-262-CFA, B, C, which is the subject of this motion, was filed charging a new charge of Attempted Escape under Florida Statute 944.40, and in Count 2, charged verbatim the same offense of Contraband in County Detention, that was Count 2 of Information # 75-195-CFA, B, and C.
“4. That the State did not obtain leave of court to amend Information # 75-195-CFA, B, C.
“5. That the action of the State clearly violated the Administrative Order of the Eighteenth Judicial Circuit, Sections VIII (O) and (P).
“IT IS THEREUPON ORDERED AND ADJUDGED that the motion to dismiss be, and the same is hereby denied as to Count 1 of this Information and as to Count 2, be, and the same is hereby granted.”

The State appeals the dismissal of Count 2. We reverse.

Sections O and P, Section VIII of the Administrative Order provide:

“VIII.
* * * * * *
“0. NOLLE PROSEQUI:
“At any time after an information or indictment has been filed and before a trial jury has been sworn to try the cause, or a guilty plea has been accepted by the court, the state attorney, or his assistant, may without leave of court and with or without giving reason, indicate he is unwilling to prosecute the case further either as to some counts, some of the persons accused, or altogether, by announcement on record in open court or by the filing of a formal nolle prosequi with the trial court; whereupon, the trial court may, with or without notice, dismiss the indicated counts, persons or case, and enter the appropriate order releasing accused from custody, cancelling undefault-ed bail bonds, releasing recognizance obligations and witnesses. Nolle prosequi will be used only to indicate a good faith decision to discontinue prosecution without intent to refile charges on the same facts and when used to override the authority of the court or circumvent immediate trial adversities (when denied a continuance, to avoid discovery obligations, to avoid motion and hearing to amend, or to deny the accused a speedy trial), a nolle prosequi may bar another prosecution. (footnote citations omitted.)
“P. DOUBLE FILINGS:
“When an information has been filed and capias issued, it may be amended pursuant to RCrP Rule 3.140(j), but a second information will not be filed against the same accused on the same offense or any related offense (as defined in RCrP Rule 8.151(a), without leave of court after motion, notice and hearing. This rule is to avoid procedural double jeopardy and resulting adverse effect upon the uniform case reporting system (Florida Transition Rule 5), the automatic bail bond schedule (VII.B. herein), the court trial dockets (VII.C.5 herein), the court tickler system (VII.C.16 herein) and to require the state to follow RCrP Rule 3.140(j).” (Emphasis supplied.)

It is to be noted that Count 2 was not dismissed because it constituted double jeopardy or because it did any of the other things which Section P of the Rule in question recites as the basis for the enactment of the Rule. Rather it was dismissed solely because of the failure of the State to first obtain leave of the trial court to re-file the Count.

There is no doubt but that the State may nolle prosequi an information within its discretion (without obtaining the approval of the Court) at any time prior to the swearing in of the jury, State v. Sokol, 208 So.2d 156 (3rd DCA Fla.1968). Further, there is no requirement in the law of this state that the trial court’s permission must be first obtained as a condition for the state to re-file such information, State v. Wells, 277 So.2d 543 (3rd DCA Fla.1973). Such re-filing would not, of course, prevent an attack upon it based on traditional substantive or procedural grounds such as, for instance, double jeopardy.

This court had occasion to consider whether a certain general order of a Circuit Court was of a kind and magnitude so as to require prior approval of the Supreme Court. See State v. Garrett, 310 So.2d 751 (4th DCA Fla.1975) (which question, certified by this Court, was later declared moot in 316 So.2d 262, because, in the meantime the Supreme Court adopted a general statewide rule which encompassed the local rule.)

It is our opinion that the Sections 0 and P, Section VIII of the Administrative Order of the 18th Circuit are inoperative and ineffective for the approval by the Supreme Court required in F.R.C.P. 1.020(b)(3) has* not been obtained. We do this upon the principles announced in State v. Garrett, supra.

We observe that this rule may or may not be a good one in its operation — and it is not within our province to make this determination. It is our holding that the Supreme Court should be allowed to pass upon its correctness and desirability and to either disallow its usage; make it the subject of a statewide rule (as was done in State v. Garrett, supra) or sanction a different and unique prosecutorial procedure solely for use in the 18th Circuit.

An attack was not made upon the Rule in the trial court. However, we exercise our discretion to treat it as a matter of fundamental error. F.A.R. 3.7(i) and 6.16(a).

The appealed order dismissing Count 2 of Information # 75-262 CFA, B, C, simply because the State failed to seek the Court’s permission to re-file as required by the mentioned sections of the Administrative Order, is

REVERSED.

DOWNEY, J., and MELVIN, WOODROW M., Associate Judge, concur.


text:
    Tony SMITH, Appellant, v. The OCEAN STATE BANK, Appellee.
    No. Z-154.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1976.

      Thomas A. Larkin, Jacksonville, for appellant.
    James E. Hodge of Poerster & Hodge, Jacksonville, for appellee.
   McCORD, Judge.

The trial court dismissed appellant’s second amended counterclaim and entered summary judgment for appellee on appel-lee’s suit against appellant upon a note. Appellee contends the trial court erred in dismissing the second amended counterclaim in that it stated a cause of action for intentional and unjustified interference with a business relationship. Appellee contends that the counterclaim is cast as a suit for tortious interference with contract rights. Since it did not appear to this court that the trial court considered the contentions here made by appellant, we temporarily relinquished jurisdiction to the trial court' for such consideration and further order. The order has now been entered and it states that the trial court fully considered both contentions of appellant and found that the second amended counterclaim did not state a cause of action under either theory stating,

“This court considers ‘intentional and unjustified’ interference with a business relationship to be one and the same as ‘tortious’ interference with a business relationship. This court also considers tor-tious interference with contract rights to be included within the definition of ‘tor-tious interference with a business relationship.’ ”

The second amended counterclaim alleges in substance that on August 21, 1974, Tony Smith (appellant) borrowed $16,293.43 from The Ocean State Bank (appellee) and gave the bank a personal note therefor; that Smith used the proceeds from the loan to purchase silver through the American Coin' Exchange which purchase in. no way involved the bank; that prior to, the due date of the note, the vice-president of the bank contacted an agent of the American Coin Exchange by telephone on two occasions and each time advised the agent “that Mr. Tony Smith had no right to use the proceeds of the loan which the bank had made to Mr. Smith for the purchase of silver and that The Ocean State Bank was entitled to any proceeds resulting from said purchase” which statement was untrue; that as a result of the bank’s malicious, wanton and unlawful interference with the contractual relationship between Smith and the American Coin Exchange, said relationship was disrupted and destroyed and the Exchange refused to sell the silver and give him the proceeds without the approval of the bank “and all assets were thereupon frozen”; that as a result of the actions of the bank, Smith sustained certain losses and damages which were set forth in the second amended counterclaim.

As the trial judge pointed out, tor-tious interference with a contract and tor-tious interference with a business relationship are basically the same cause of action. The only material difference appears to be that in one there is a contract and in the other there is only a business relationship.

In 45 Am.Jur.2d Interference, § 39, we find the following with reference to tor-tious interference with contractual rights:

“A party to a contract, whether of employment or otherwise, has a right of action against a person who had procured a breach or termination of the contract by the other party thereto. The theory of this doctrine is that the right to perform a contract and to reap the profits resulting from such performance, and also the right to performance by the other party, are property rights which entitle each party to protection against all the world, and to seek compensation by action in tort for any injuries to such contract. The, interest protected has been.said to be the,right of the individual to security in his business relations, that ■ is, the right to have preserved the undertaking of persons with whom he has commercial dealings. ' ' '
f ‘ * * * *
The elements essential to recovery for tortious interference with a contract are: (1) the contract; (2) the wrongdoer’s knowledge thereof; (3) his intentional procurement of its breach; (4) the absence of justification; and (5) damages resulting therefrom.”

Under § 50 of the same heading relating to interference with business relationship we find the following:

“The basic elements which establish a prima facie tortious interference with a business relationship are the existence of a valid business relation (not necessarily evidenced by an enforceable contract) or expectancy; knowledge of the relationship or expectancy on the part of the interferer; an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and resultant damage to the party whose relationship or expectancy has been disrupted. One is liable for commission of this tort who interferes with business relations of another, both existing and prospective, by inducing a third person not to enter into or continue a business relation with another or by preventing a third person from "continuing a business relation with another.”

In Franklin v. Brown, 159 So.2d 893 (Fla.1st DCA 1964), this court said:

“The intentional and unjustified interference with the advantageous business relationship existing between others which results in injury constitutes a tort under the law of this State .
******
“Even though appellant asserts no cause of action against Welton Smith for breach of contract, this in itself does not bar appellant from asserting a cause of action against appellee if the latter’s conduct constitutes a tortious interference with appellant’s business relationship with Welton Smith. If by his wanton conduct appellee intentionally destroyed the subject matter of the contract existing between appellant and Welton Smith, or otherwise unlawfully rendered the latter’s performance under the contract impossible, appellee would be liable in tort to the same extent as if he had unlawfully induced Welton Smith to breach its contract with appéllant.”

In Dade Enterprises v. Wometco Theatres, 119 Fla. 70, 160 So. 209 (1935), the Supreme Court said:

“If one maliciously interferes with a contract between two persons, and induces one of them to breach the contract to the injury of the other, the injured party may maintain an action against the wrongdoer, and where the act was intentional, malice will be inferred. To do intentionally that which is calculated in the ordinary course of events to damage, and which in fact does damage, another person in his property or trade, is malicious in the law, and is actionable if it is done without just cause or excuse.”

Our sister court of the Third District, in analyzing this Court’s opinion in Franklin v. Brown, supra, concluded in John B. Reid and Associates, Inc. v. Jimenez, 181 So.2d 575 (Fla. 3d DCA 1965), that the elements necessary to establish the tort of intentional and unjustified interference with a business relationship are the following:

“First, the existence of a business relationship under which the plaintiff has legal rights. However, it is specially pointed out that this relationship need not be evidenced by an enforceable contract. Second, that in order to secure an advantage, the defendant, by fraud, induces plaintiff’s business associate to act in a way which destroys plaintiff’s business relationship. It is specifically noted that this inducement may be by means of the concealment of a fact which the circumstances require that the defendant should reveal. Third, that the plaintiff is damaged as a result of the breach of the business relationship.”

While in both John B. Reid and Associates, Inc., and Franklin the element of fraud was present, it is not necessarily a required element of this tort. Our sister court of the Fourth District came to this conclusion in J. Rolfe Davis, Inc. v. Symon, 232 So.2d 439 (Fla. 4th DCA 1970). The court there stated:

“Fraud is not a necessary element in every action for an intentional and unjustified interference with an advantageous business relationship. If neither the pleadings nor proof raise it then an instruction on fraud is not required.” (Numerous authorities cited.)

Subsequently, the same case was again before the court [Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla. 4th DCA 1971)] and it stated the elements of the tort as follows:

“The elements of the tort, then, are: (1) the existence of a business relationship under which the plaintiff has legal rights, (2) an intentional and unjustified interference with that relationship by the defendant, and (3) damage to the plaintiff as a result of the breach of the business relationship. Cf., John B. Reid & Associates, Inc. v. Jimenez, Fla.App.1965, 181 So.2d 575; Mead Corporation v. Mason, Fla.App.1966, 191 So.2d 592.”

The foregoing statement of the elements of this tort were quoted in Nichols v. MoAmCo Corp., 311 So.2d 750 (Fla. 2d DCA 1975).

From our analysis of the question, we conclude that the basic necessary elements to establish tortious interference with a business relationship are the following: The existence of a business relationship not necessarily evidenced by an enforceable contract; (2) knowledge of the relationship on the part of the interferer; (3) an intentional and unjustified interference with that relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship.

All of the foregoing elements are included in the allegations of Smith’s second amended counterclaim. It therefore stated a cause of action and the trial court erred in dismissing it. While it would not have been error to enter the final summary judgment had the court properly dismissed the second amended counterclaim, it was error to enter final judgment since the counterclaim was improperly dismissed. If Smith is successful in the prosecution of his counterclaim, any damages awarded to him would be set-off on the bank’s suit on the note. Final judgment and execution should await disposition of the entire case.

Reversed and remanded.

BOYER, C. J., and MELTON, HOWELL W., Associate Judge, concur.


author: JONES, Justice.

text:
    The HOME INSURANCE COMPANY, a corporation v. Walter L. GRAYDON d/b/a Decatur Food & Freezer Service.
    SC 1694.
    Supreme Court of Alabama.
    July 16, 1976.
    Eyster, Eyster & Key, Decatur, for appellant.
    No appearance for appellee.
   JONES, Justice.

The sole issue presented by this appeal is whether the trial Court erred in finding that Buster Corley, at the time of the accident in question, was not an employee of Walter Graydon within the meaning of the exclusionary clause of the insurance policy issued by the defendant, The Home Insurance Company, to Graydon.

We affirm. We hold that The Home Insurance Company is under a duty to defend Graydon in a suit brought for personal injuries by Corley.

The pertinent facts are as follows. Cor-ley had been previously employed by Walter Graydon, the owner of Decatur Food & Freezer Service. At the time of the accident, however, Corley was employed by Stewart’s Infra Red Company. Shortly before the accident, Graydon’s wife, Myrtice, contacted Corley and requested that he come in to help as her husband, who normally performed such employment functions, was out from work due to illness. No agreement was reached as to the amount of nature of compensation Corley was to receive. Corley testified that he received no pay for the work he did and did not intend to charge for his work. He did state, however, that he would have accepted pay if it were offered him.

Corley went directly from his full time employment in the late afternoon of August 1,1974, to the Decatur Food & Freezer Service and began cutting meat. After he went into the storage area and took a hind quarter of meat off the wall, Corley’s foot became caught between the wooden slabs on the floor as he started backwards, causing him to fall and injure himself.

At the time of the injury, Decatur Food & Freezer Service carried a general Business Liability Policy with the third party defendant, The Home Insurance Company. “Coverage E” of this policy contains the basic statement of the benefits extended:

“This company will pay on behalf of the insured all sums to which the insured will become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, due to an occurrence, and this company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, or false, or fraudulent, and may make such investigations, settlement of any claim or suit as it deems expedient; but this company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of this company’s liability has been exhausted by payment of judgments or settlements.”

This policy contains an exclusions section setting forth those situations to which the policy does not apply. The Home Insurance Company contends coverage should be denied under “Section K” of the exclusions clause:

“(k) under Coverage E, except with respect to liability assumed by the Insured under an insured contract, to bodily inju-. ry to any employee of the Insured arising out of and in the course of his employment by the Insured or to any obligation of the Insured to indemnify another because of damages arising out of such injury.”

The trial Court made the following findings of fact:

1. Mrs. Graydon was not authorized, expressly, or impliedly, to hire employees for her husband’s business. For all that appeared this was the first and only time she had called and asked someone to “come in and help out.”
2. Mr. Graydon had no knowledge of her acts in requesting Corley to “help out” in the business during his illness until after the accident occurred.
3. Corley agreed to “come in and help out” as a favor to Mrs. Graydon because of his friendship with Mr. Gray-don and did not ask for nor require any compensation for his service although he would have taken pay if offered.
4. Corley was regularly employed elsewhere at the time of the accident and came in to “help out” around 5:00 P.M. on August 1, 1974, after he had completed his workday for his regular employer.
5. Mrs. Graydon exercised no control or supervision of Corley and gave him no instructions at all other than requesting that he “come in and help out” while her husband was ill.
6. Mr. Graydon exercised no control or supervision of Corley as he had no knowledge of his presence until after the accident.

Applying the rule of ore tenus, we sustain the findings of fact by the trial Court since there has been no showing that these facts are clearly and palpably wrong, or without supporting evidence, or manifestly unjust. Sterling Oil of Oklahoma v. Pack, 291 Ala. 727, 287 So.2d 847 (1973).

We now turn to an application of the law to the facts as found by the trial Court. Although this issue has never been directly before this Court, the Fifth Circuit in Ward v. State, 241 F.2d 134 (5th Cir. 1957), has interpreted a similar factual situation involving Alabama law. Judge Rives, speaking for the Court of Appeals, stated:

“The word ‘employee’ as used in Exclusion (d) of the policy was, we think, used in its ordinary, everyday sense, not in its strictly legalistic meaning . . . ” 241 F.2d at 142.

We think this rule is applicable in the instant case. The facts support the legal conclusion that Corley was not an employee within the usual ordinary sense. He was regularly employed elsewhere and came in to help because of his friendship with Mr. Graydon. Corley neither asked for nor required any compensation for his services.

A close examination of the facts, presumed here to be correct, reveals a critical flaw in The Home Insurance Company’s case. Generally, whether the injured party was in fact an employee of the insured is to be determined by the master servant relationship, and whether the injured party is an employee of the insured depends upon the particular circumstances of the case. In accordance with this general principle of employment law, the existence of control over the employee is an essential element in determining by whom he is employed. Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757 (1939); Couch on Insurance, § 45:549 (2d Ed. 1964).

Mr. Graydon had no knowledge of Cor-ley’s action until after the accident. Mrs. Graydon was not authorized expressly or impliedly to hire employees for her husband’s business; and, furthermore, Mrs. Graydon exercised no control or supervision over Corley. This essential element of control is lacking, and we therefore hold that the trial Court was correct in concluding that Corley was not an employee within the terms of the insurance policy.

AFFIRMED.

HEFLIN, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.