author: McCORD, Chief Judge.; McCORD, Chief Judge.

text:
    SEABOARD COAST LINE RAILROAD COMPANY, a Railroad Corporation, Appellant, v. Betty Raye WELFARE and her mother, Juanita Welfare, Appellees.
    No. CC-437.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1977.
    Rehearing Denied Oct. 24, 1977.
    William R. Swain of Webb, Swain & Watson, Jacksonville, for appellant.
    W. C. O’Neal of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, for appellee.
   McCORD, Chief Judge.;

This is an appeal from final judgment entered upon a jury verdict in favor of appellee Betty Raye Welfare and a verdict in favor of appellee Juanita Welfare, Betty’s mother, for damages sustained by her as a result of Betty’s injuries resulting from a grade crossing collision with a train of appellant Seaboard Coast Line Railroad Company.

The following facts are undisputed. The collision occurred at approximately 12:00 noon on May 25, 1972, during clear, dry weather at the crossing of Walker Street and appellant’s main line tracks within the city limits of Live Oak, Florida. Betty and two of her teen-age girl friends, Cathy Parker and Gwynth Frier, left school in an automobile driven by Betty to go to lunch. They drove north on South Walker Street to its intersection with U.S. Highway 90 where they stopped at a stop sign. From that intersection which was approximately 150 feet due south of the railroad crossing where the accident occurred Betty drove the car northward on Walker Street toward the crossing at 25 m.p.h. All windows of the car were up and the air conditioning and radio were both on inside the car. The radio was on normal volume. As the car approached the crossing, the line of sight was partially obstructed by a U.S. Mail Truck which was parked about 50 feet south of the crossing in the northbound lane on the east side of Walker Street. Betty drove the automobile up to and around the mail truck and moving at a steady pace without looking to the right or the left, she drove onto Seaboard’s main line tracks in front of appellant’s oncoming freight train. She was not driving in a reckless manner otherwise. She and Gwynth Frier were seriously injured and Cathy Parker was killed in the resulting collision. Betty knew the crossing was there and had been over it hundreds of times before. The driver of another car, Katherine Fielding, had already stopped for appellant’s train in the southbound lane of Walker Street on the opposite side of the crossing, and she blew her horn frantically in an attempt to get the attention of Betty but she did not respond.

Appellant’s train consisting of five diesel engines and 138 cars was making a scheduled freight run from Bainbridge, Georgia, to Jacksonville, Florida, when the collision occurred. When the lead engine reached the whistle post for the Walker Street crossing, approximately 1500 feet west of the crossing, the engineer blew the whistle and blew it again at the crossing where the accident occurred. The crossing was equipped with a standard crossbuck warning sign for automobiles. The speed limit for a train at this crossing was 25 m.p.h. The train had a broken speedometer and was traveling at a speed of approximately 50 m.p.h.

The evidence is in conflict as to whether other warnings of the train’s approach were given by the train crew. The engineer testified that as the train entered the city limits of Live Oak, he turned on the bell and began blowing the horn for the crossings ahead. For each crossing, he blew the standard blow which was two long blows, one short blow, then one long blow. When the lead engine reached the whistle post for the Walker Street crossing (approximately 1500 feet west of the crossing as aforesaid) he again began the standard blow. This continued until the lead engine was 80 to 90 feet from the crossing at which point both the engineer and fireman (who was operating the engine at the time) first saw the automobile being driven by Betty Welfare which was only 40-50 feet from the crossing and was just coming around the stopped U.S. Mail Truck. The fireman corroborated the engineer’s testimony and further testified that the engineer then began sounding a continuous blow which was changed to a staccato blow when it became apparent that Betty was not going to attempt to stop for the crossing; that he put the train into emergency stop 20-30 feet from the crossing but it collided with the automobile at a point just to the rear of the front seat on the driver’s side.

Every witness called by appellees and appellant positively testified that he or she at some time did hear the train horn blow before it got to the crossing. (Betty and Gwynth had no remembrance of the accident.) Witness Wilbur Rye, manager of a service station located about 100 feet from the crossing testified that he heard the train horn being sounded before the impact occurred, but he had no recollection of hearing it prior to the train reaching the crossing. Witness Willie Rudd, an auto mechanic, testified that he worked approximately one-quarter mile from the Walker Street crossing and 300 feet from the tracks; that just prior to the collision he was standing in front of his house talking to a customer when appellant’s train came by; that just as the train got to his house, it blew its horn at the whistle post for the Walker Street crossing; that he did not hear it blow again until after the train hit the car. Witness Ben Houston was at the same location as witness Rudd when the train went by. He testified that he heard the train sound its horn when it reached witness Rudd’s house and that he did not again hear it after it passed the house until the lead engine hit the car. He admitted that his attention was not directed to the train after it passed him and until it hit the car at the Walker Street crossing. Witness Osmond Palmer testified that he was heading south on Walker Street toward the crossing (in the opposite direction that Betty was driving); that he did not hear the train’s horn until just before it got to the crossing and after he had stopped for the crossing behind another car; that as he approached the crossing, he was aware that a train was coming and was slowing down for it; that his windows were up and his air conditioning and radio were on while he was driving just before the collision.

Witness Katherine Fielding testified that she first heard the train horn when she was at her husband’s grandmother’s house located about one block north of the Walker Street crossing; that after hearing the horn she got out into her car, backed out of the driveway and headed toward the crossing; that during this entire period of time she heard the train’s horn blowing, and it was still being sounded when she stopped her car at the crossing to wait for the train to pass; that after she had stopped she observed the car Betty was driving come around the stopped mail truck and head straight for the crossing; that when she first observed Betty’s car the train was sounding its horn and when it became obvious to her that Betty was not going to try to stop, she blew her own car horn to try to get Betty’s attention; that all the while the train’s horn kept sounding. She further testified that the headlight on the lead engine was working at all times and that had Betty looked to her left down the tracks, she could have seen the oncoming train prior to running onto the crossing. Witness Fielding was the only eyewitness to the accident other than the train crew.

Appellant contends that the trial court committed reversible error in not granting its motion for directed verdict made by it at the close of all of the evidence. We agree and reverse.

While at first glance it appears that there is conflict in the evidence as to whether or not the train gave an adequate warning of its approach, when we apply the rule established by the Supreme Court in Seaboard Air Line Railway Company v. Myrick, 91 Fla. 918, 109 So. 193 (1926), the negative testimony of the witnesses who testified that they did not hear the train’s horn blow at particular times prior to the accident must be discarded as it cannot stand against the positive testimony of the train crew and eye witness Fielding that the engine’s horn was blowing constantly for a considerable period prior to the accident. This is so because the negative testimony of the other witnesses does not affirmatively show that their attention was directed to the fact of whether or not the horn was blowing. In Myrick the Supreme Court said:

“It is not alone sufficient for the injured Plaintiff to say that he ‘did not see’ the approaching train, nor hear any whistle or bell or noise of its approach, in order to overcome positive evidence that all ordinary warnings were given of the train’s approach. When negative testimony is relied upon to contradict positive evidence, it should appear that the negative statements were made by persons whose attention was directed to the fact that they were looking, watching, and listening for the fact. Not only that the opportunity for observing the fact existed, but that their attention was directed to the fact.
“A mere statement that T did not see or hear’ the train or noise made by its approach as against affirmative evidence of credible witnesses that it did approach and made sufficient noise in doing so reasonably to attract the attention of others cannot be said to create a conflict of evidence justifying a submission of the question to the jury.”

This rule has been continuously recognized in the following cases: Powell v. Gary, 146 Fla. 334, 200 So. 854 (1941); Loftin v. Kubica, 68 So.2d 390 (Fla.1953); Tyus v. Apalachicola Northern Railroad Co., 130 So.2d 580 (Fla.1961); Seaboard Coast Line Railroad Co. v. Helman, 330 So.2d 761 (Fla. 4 DCA 1976).

Appellee also contends that the train’s speed of approximately 50 m.p.h. in violation of the speed limit of 25 m.p.h. at this crossing was negligence which was the proximate cause of the accident. This case was, of course, tried under the doctrine of comparative negligence and if appellant Railroad was guilty of negligence which was a proximate cause of this accident, appellees were entitled to recover. The train’s speed, however, was not a proximate cause of this accident. No evidence was adduced which supports appellees’ contention. It is clear that the sole proximate cause of the accident was the driving of the car onto the track without stopping, slowing down or looking to the right or to the left. When Betty drove onto the track directly in front of the train the collision was inevitable, and it would have made no difference whether the train was going 25 m.p.h. or 50 m.p.h. Compare Seaboard Coast Line Railroad Co. v. Helman, supra.

Appellant also contends that the trial court erred in allowing into evidence the testimony and expert opinions of Norman Korobow, a human factors engineer, who testified in summary that: (1) The sound and visual stimuli presented by appellant Seaboard at the Walker Street crossing at the time of the collision were inadequate to warn a motorist of an approaching train; (2) The lead engine’s fixed beam headlight, although operating on high beam at the time of the collision, was of “zero value” to the motorist (Welfare), but that an oscillating light (mars light) would have been very effective; (3) The effect of the Hancock air horn on the lead engine on the motorist (Welfare) was inadequate, and there were many louder horns available in the state of the arts at that time; and (4) The standard railroad crossbuck warning signs at the Walker Street crossing were not adequate stimulus. Appellant’s objections to this testimony at the trial should have been sustained. The opinions of the witness as to the above matters were based upon assumed facts set forth in a lengthy hypothetical question propounded by appellees and certain answers to interrogatories read into the evidence at the end of his testimony. One of the primary facts he assumed was that the train blew its horn 1500 feet from the crossing but did not blow it again until it was right at the crossing. As we have previously discussed, this assumed fact was not supported by the evidence. Compare Autrey v. Carroll, 240 So.2d 474 (Fla.1970), and Arkin Construction Co. v. Simpkins, 99 So.2d 557 (Fla.1957). Witness Korobow’s expert opinion testimony invaded the province of the jury. Compare Seaboard Coast Line Railroad Co. v. Kubalski, 323 So.2d 32 (Fla. 4 DCA 1975). Our sister court of the Fourth District in Seaboard Coast Line Railroad Co. v. Helman, supra, in addressing itself to the opinion of a “human factors engineer” who had testified that the horn on a train was simply inadequate in volume or intensity to be heard by the motorist there stated:

“Surely, one cannot raise the noise level in one’s own vehicle, for example by operation of air-conditioner, radio or tape player, etc., while excluding outside noise, for example by closing all windows, and then be heard to claim that a warning signal was inadequate simply because it could not be heard within the vehicle.”

We agree with the foregoing statement which is equally applicable to the case sub judice. The witness’ opinions were not based upon correct factual assumptions, and they invaded the province of the jury.

In stating his opinion that crossbucks alone are not sufficient warning of a railroad crossing, witness Korobow’s conclusion would impose upon appellant a greater duty than is imposed by law. In Atlantic Coast Line Railroad Co. v. Wallace, 61 Fla. 93, 54 So. 893 (1911), the Supreme Court said:

“The province of the jury is to determine whether under the facts and circumstances in evidence the defendant was negligent as alleged, and, if there was such negligence, whether it was a proximate cause of the injury complained of. While a determination of whether there was negligence does not depend solely upon a compliance with the requirements of statutes, ordinances, or other lawful governmental regulations, for circumstances may require additional precautions and care, yet the prescribing of particular facilities that may be regarded as essential or useful in preventing injuries from trains at railroad crossings in municipalities or elsewhere is a function that is legislative or administrative in its nature. Ordinarily it is not for a trial jury to determine whether particular methods or facilities should have been used to prevent an injury alleged, when such methods or facilities are not prescribed by competent authority or necessarily required by implication of law. But the jury should determine from all the circumstances in evidence in the particular case whether the defendant is liable in damages for a negligent injury as alleged. Any evidence tending to show whether the railroad company exercised all the care and diligence required by the circumstances of the case is admissible; and the jury should determine whether the requisite degree of care was exercised, and not whether a particular kind of safeguard should have been used. The necessity or advisability of requiring the maintenance of gates at railroad crossings in streets of a municipality may be a matter for the Legislature, the local authorities, the railroad commissioners, or a grand jury to determine; but such determination was not within the province of the trial jury in this case.”

See also McNulty v. Atlantic Coast Line Railroad Co., 198 So.2d 876 (Fla. 2 DCA 1966), cert. discharged, 199 So.2d 706 (Fla.1967); Myers v. Seaboard Air Line Railroad Co., 202 So.2d 624 (Fla. 4 DCA 1967), cert. den., 210 So.2d 224 (Fla.1968); Caudell v. Florida East Coast Railway Co., 201 So.2d 583 (Fla. 3 DCA 1967).

Appellant also contended that the trial court committed reversible error in allowing into evidence the testimony and expert opinions of William Fogarty. He testified as an expert witness in the area of accident reconstruction and safety engineering and his testimony was objected to on the same grounds as appellant had asserted in relation to witness Korobow’s testimony. The objections should have been sustained as his testimony contains the same flaws as did witness Korobow’s testimony.

Reversed and remanded with directions to vacate the judgment for appellees and enter judgment for appellant.

MILLS, J., and YAWN, THERON A., Jr., Associate Judge, concur.

ON PETITION FOR REHEARING

McCORD, Chief Judge.

In their Petition for Rehearing, appellees . call our attention to the fact that the Supreme Court in Helman v. Seaboard Coast Line Railroad Company, 349 So.2d 1187 (opinion filed July 28, 1977, Petition for Rehearing denied September 15, 1977), reversed Seaboard Coast Line Railroad Company v. Helman, 330 So.2d 761 (Fla. 4th DCA 1976), which latter opinion we cited and quoted from in our opinion in the case sub judice. Although we confess that we overlooked and did not consider the Supreme Court’s opinion in Helman, it not having been cited to us by either party, we have now reviewed it and do not find that the Supreme Court’s reversal goes to the particular point for which we cited it. The Supreme Court in its opinion in Helman summed up the basis for its reversal as follows:

“ . For the District Court’s decision to be sustained, there needed to be a complete absence of competent evidence to support the verdict, or, in the alternative, it was necessary that the evidence be of such a nature that reasonable men could only conclude that the behavior of the individual driving petitioner’s truck was the sole proximate cause of the accident. Neither is apparent from the record in the instant cause.”

In the ease sub judice, not only was there a complete absence of competent evidence to support the verdict, but also the evidence was of such a nature that reasonable men could only conclude that the behavior of the individual driving the vehicle was the sole proximate cause of the accident. We have considered the other points raised by appel-lees’ Petition for Rehearing and find them to be without merit.

Petition for Rehearing Denied.

MILLS, J., and YAWN, THERON A., Jr., Associate Judge, concur.


source: Caselaw Access Project

author: SMITH, Acting Chief Judge. ERVIN, Judge

license: Public Domain

text:
    FLORIDA FIRST NATIONAL BANK OF JACKSONVILLE, a corporation, Appellant, v. Alfred DuPont DENT and Andrew G. P. Hobbs, Individually and trading and doing business as Computer Institute of North America, Inc., Appellees.
    No. DD-203.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1977.
    Rehearing Denied Oct. 27, 1977.

      John W. Harrell of Harrell & Perrine, and David W. Foerster of Foerster & Hodge, Jacksonville, for appellant.
    John F. Fannin of Milam & Wilbur, Jacksonville, for appellees.
   SMITH, Acting Chief Judge.

Florida First National Bank of Jacksonville appeals from an adverse final judgment entered on a directed jury verdict for appellees Dent and Hobbs at the close of the Bank’s case. The Bank’s fourth amended complaint, insofar as here pertinent, asserted in three counts (1) that appellees are liable individually and as partners “doing business in the name of Computer Institute of North America, Inc.,” for rentals and the cost of leasehold improvements under a lease by the Bank to Computer Institute of North America, Inc.; (2) that appellees are liable as guarantors of Computer Institute’s obligations by virtue of a guaranty instrument executed October 2, 1969, six weeks after the date of the lease; and (3) that appellees are individually liable under another guaranty instrument executed by them May 3, 1971. The principal issue before us is whether the trial court erred in excluding from evidence, when offered by the Bank, the purported lease agreement between the Bank, as landlord, and Computer Institute of North America, Inc., as tenant. When that evidence was excluded, the Bank offered no further evidence.

The Bank’s appeal does not preserve by argument any error in the trial court's dismissal of count 3 before trial. That count was dismissed for failure to state a cause of action in that the exhibited guaranty instrument of May 1971, though containing purported undertakings by the Bank in consideration of appellees’ guaranty, was not executed in any fashion by the Bank. The Bank’s brief simply states, in argument of the trial court’s asserted error in refusing to admit the lease document, that “the trial court was in error” in dismissing count 3. The Bank refers to no assignment of error and submits no argument in support of that conclusion to which appellees could conceivably have been required to respond. The point is waived. See Fla.App.R. 3.7f(4) and 8.7L

Following extended proceedings in the trial court to settle the pleadings, and on an order and counsel’s pretrial stipulation defining the issues for trial, a jury was impaneled to try the issues of whether the appellees “in their individual capacity and also as partners doing business in the name of Computer Institute of North America, Inc.” are liable to the Bank under the lease document for performance of the tenant’s obligations; and, alternatively, whether ap-pellees are liable, by virtue of the October 1969 guaranty instrument they executed, for performance of the tenant’s obligations under the lease document. The Bank’s case collapsed when the court excluded the purported lease document which was the foundation of count 1. Appellees’ answer had denied the Bank’s execution of the lease, thus putting the Bank to proof, and had specifically averred the lease was not executed in behalf of the Bank by one authorized to do so. The trial court held the lease document inadmissible because it was not executed in behalf of the Bank by an agent “in the presence of two subscribing witnesses,” Section 689.01, Florida Statutes (1969), and it was not signed by the Bank’s “president or any vice-president or chief executive officer.” Section 692.01, Florida Statutes (1969). The lease document was purportedly executed in behalf of the Bank by an assistant vice-president without subscribing witnesses. The Bank offered no proof that the Bank had authorized its assistant vice-president to execute a lease in its name. We agree with the trial court' that an assistant vice-president is not a vice-president whose presumed authority to execute a lease for a bank is derived from Section 692.01.

As a result of confusion in the Bank’s pleading and proof, the trial court mistook the question of the admissibility of the irregularly-executed lease document as a question of its legal effect. If the Bank’s case rests entirely on the efficacy of the lease document, it fails for lack of execution by the Bank. But even under the narrow theory of liability on which the Bank’s case against appellees went to trial, the lease document was admissible in evidence to show the unenforceable obligations of Computer Institute of North America, Inc., which appellees allegedly guaranteed by the guaranty instrument dated October 1969. Appellees’ answer raises serious and unresolved doubts of whether that guaranty instrument was intended to guarantee performance of the tenant’s obligations under the lease document, but the guaranty was a pleaded theory of liability which the trial court foreclosed by excluding the lease document from evidence. There are circumstances in which a guaranty agreement is enforceable against a party to secure performance of obligations under a prior instrument which is itself unenforceable. See Warren v. Tampa Mtg. Inv. Co., 112 Fla. 555, 150 So. 738 (1933); 38 C.J.S. Guaranty § 16 (1943); 38 Am.Jur.2d Guaranty § 52 (1968). The trial court erred in excluding the lease document from evidence and the error is reviewable on appeal from the final judgment notwithstanding that, in the ensuing disarray, the Bank did not clearly offer the October 1969 guaranty instrument which allegedly imposed on appellees the tenant’s unenforceable obligations under the lease document.

Given the state of the pleadings and the stipulation of narrow issues on which this case went to trial, the trial court surely did not err in declining to receive evidence supporting count 1 that the corporate tenant (and, allegedly, appellees) went into occupancy under the lease and by that conduct validated it. Although the fourth amended complaint contains jurisdictional allegations to the effect appellees did business in Florida by taking occupancy under the lease in Jacksonville, Section 48.181, Florida Statutes, the trial court separately tried the jurisdictional issues and determined them favorably to the Bank in advance of the trial on the merits. On the Bank’s motion the court thereafter struck from appellees’ answer to the fourth amended complaint their denial of the occupancy allegations which might have preserved for trial an issue of appellees’ ratification of the lease document. On further consideration of this protracted litigation, the trial court may in its discretion determine whether the Bank should be permitted further pleading to relieve its failure to allege and preserve a theory of liability under count 1 resting on appellees’ asserted occupancy individually or as partners “doing business in the name of Computer Institute of North America, Inc.”

On remand the trial court may accept as having been fairly tried and determined, and as the law of the case, that appellees have prevailed on counts 1 and 3 as pleaded. The trial court’s ruling which dismissed count 3, predicated on the guaranty instrument dated May 1971, shall not be revisited. The legal and factual issues on count 2, not here passed on, shall be determined by the trial court. The Bank’s further pleading of count 1 on the issue of appellees’ occupancy shall be in the informed discretion of the trial court.

REVERSED and REMANDED.

CREWS, JOHN J., Associate Judge, concurs.

ERVIN, J., concurring in part and dissenting in part.

ERVIN, Judge

(concurring in part and dissenting in part):

I concur in the dismissal of count three of the Bank’s amended complaint. That cause of action, based on the second guaranty agreement, must fail because it was' not signed at all by any representative of the Bank.

I dissent, however, to the majority’s treatment of count one. The lease agreement was signed by the Bank’s assistant vice-president and attested by only one signature. Section 698.01, Florida Statutes (1969), did indeed require two subscribing witnesses. But that section expressly allowed an alternate method of conveyance— by Sections 692.01 and 692.02. Those sections required, and require, only execution by a corporate president, “any vice-president” or the chief executive officer, and the impression of the corporate seal.

It is my belief that the common and ordinary meaning attributable to the words “any vice-president” includes an assistant vice-president. “Any” is all inclusive, without limitation. I see a distinction between “a vice-president” and “any vice-president”. The latter is broader and logically seems to have been intended by the legislature to include such junior officers as here.

I, of course, concur in the majority’s finding that the guaranty agreement entered into after the signing of the lease, the subject of count two, is admissible.


author: ERVIN, Judge.

text:
    STATE ex rel., DIVISION OF ADMINISTRATION, State of Florida, Department of Transportation, Relator, v. The Honorable R. Hudson OLIFF, as Judge of the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida, Respondent.
    No. GG-256.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1977.
    Rehearing Denied Oct. 27, 1977.

      Alan E. DeSerio, Robert I. Scanlan, H. Reynolds Sampson, Tallahassee, for relator.
    Cecilia A. Bryant of Bryant, Dickens, Franson & Miller, R. Hudson Oliff, Jacksonville, for respondent.
   ERVIN, Judge.

Henrietta Kinnon filed her amended complaint in two counts against the Department of Transportation. The first alleges the location and size of the drainage easement upon her property constitutes a breach of the contract she entered into with the Department. The second alleges false representations by the Department’s agents in the making of that contract. The first count sounds in contract and the second in tort. The Department moved to dismiss the complaint since the agreement was entered into in April, 1974, during which time the Department enjoyed sovereign immunity. While sovereign immunity in tort actions has been waived by Section 768.28, Florida Statutes (1975), to the extent of liability coverage, the Department contends such was not the law in April, 1974. Section 768.30 provides the waiver of sovereign immunity for tort did not take effect for the Department until July 1,1974. As to count two, the Department argues it was and is immune from contract actions.

The trial court denied the motion to dismiss and suggestion for writ of prohibition was filed in this court.

A rule nisi was entered and Ms. Kinnon answered. As to the question of tort immunity, she alleged in her complaint the construction of the drainage easement was not completed until on or after January 15, 1975. She contends it was not until that time that she could have known of any cause of action she may have against the Department. This, of course, would be after the effective date of Section 768.28. This cause of action, sounding as it does in fraud, accrues when the fraud or deceit was or should have been discovered. Section 95.031(1), Florida Statutes (1975); Tullo v. Horner, 296 So.2d 502 (Fla. 3rd DCA 1974). The question of discovery is a factual one, not appropriately passed upon at the pleadings stage. The trial judge correctly denied the motion to dismiss as to the first count.

Ms. Kinnon next argues Section 337.19(1), Florida Statutes (1975), allows contract actions against the Department. That section reads:

“Suits at law and in equity may be brought and maintained by and against the department on any claim under contract for work done; provided that no suit sounding in tort shall be maintained against the department.”

This action is not one based on a claim “under contract for work done” and is not applicable here. Statutes purporting to waive sovereign immunity are strictly construed, and must be clear and unequivocal. Seaside Properties, Inc. v. State Road Department, 121 So.2d 204 (Fla. 3rd DCA 1960). Further, since the Supreme Court opinion in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976), it is clear agencies are immune from contract actions generally.

The trial judge being without subject matter jurisdiction over the count alleging breach of contract, the writ of prohibition is issued as to that portion of the complaint only.

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

      . We may assume false representations alleged in the complaint are not negligent misrepresentations, for if so, the cause of action accrued at the time the injury took place, and not at the time of discovery. Cristiani v. City of Sarasota, 65 So.2d 878 (Fla.1953). The injury here, the construction of the allegedly oversized drainage easement assuredly took place prior to July 1, 1974, the effective date of § 768.28.

      . But see State Road Department of Florida v. Tharp, 146 Fla. 745, 1 So.2d 868 (1941), where the Department was found to have no immunity against a suit alleging a “taking” of property in derogation of constitutional rights.


author: HAVERFIELD, Judge.

text:
    Joan RUTECKI and Stanley Rutecki, her husband, Appellants, v. Rubin SORKIN, Appellee.
    No. 76-1212.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Rehearing Denied Oct. 25, 1977.

      Highsmith, Strauss & Nelson and Leonard L. Elias, Miami, for appellants.
    Richard M. Welsh, Joe N. Unger, Miami, for appellee.
    Before PEARSON, HAYERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Plaintiff tenant seeks reversal of an adverse final summary judgment entered in favor of landlord in this action to recover damages for injuries sustained as a result of tenant slipping and falling on landlord’s premises.

Defendant, Dr. Rubin Sorkin, is the owner of an apartment complex and has as one of his tenants the plaintiff-appellant, Joan Rutecki, who is friendly with the manager, Bonnie Georgoras. The record reflects that Georgoras asked Rutecki to help her clean up some garbage strewn on the sidewalk around one of the dumpsters in the rear of one of the buildings. Rutecki testified in her deposition that when she accompanied Georgoras to the subject area, she noticed the garbage strewn around consisted in part of broken glass and some slippery substance like mayonnaise or mustard; and upon stepping into the midst of this garbage and bending down to pick it up, she slipped and fell causing serious injury to herself. She then filed the instant negligence action against Dr. Sorkin. Following pretrial discovery, Dr. Sorkin moved for summary judgment which, after a hearing, was granted in his favor on the grounds that (1) he owed no duty to Rutecki, and (2) Rutecki assumed the risk. We reverse.

First, the Supreme Court recently abolished the doctrine of assumption of the risk and, therefore, the summary judgment cannot be sustained on this ground. See Blackburn v. Dorta, 348 So.2d 287 (Fla.Supreme Court, opinion filed May 5, 1977).

Second, the alternative ground that defendant Sorkin owed no duty to Rutecki cannot support the entry of summary judgment in that the issue of whether defendant, under the circumstances, owed a duty to Rutecki is a question for the jury to determine. As- our Supreme Court pointed out in Blackburn v. Dorta, supra, at pp. 290-291 in discussing the relationship of assumption of the risk to the issue of the duty, if any, on the part of a defendant to a plaintiff:

“The breed of assumption of risk with which we deal here is that which arises by implication or implied assumption of risk. Initially it may be divided into the categories of primary and secondary. The term primary assumption of risk is simply another means of stating that the defendant was not negligent, either because he owed no duty to the plaintiff in the first instance, or because he did not breach the duty owed. Secondary assumption of risk is an affirmative defense to an established breach of a duty owed by the defendant to the plaintiff. Meistrich v. Casino Arena Attractions, [31 N.J. 44, 155 A.2d 90] supra.
******
“It is apparent that no useful purpose is served by retaining terminology which expresses the thought embodied in primary assumption of risk. This branch (or trunk) of the tree of assumption of risk is subsumed in the principle of negligence itself. Under our Florida jury instructions, the jury is directed first to determine whether the defendant has been negligent, i. e., did he owe a duty to the plaintiff and, if so, did he breach that duty? To sprinkle the term assumption of risk into the equation can only lead to confusion of a jury. See McGrath v. American Cyanamid Co., [41 N.J. 272, 196 A.2d 238] supra (see footnote 3). An example of this concept is presented in the operation of a passenger train. It can be said that a passenger assumes the risk of lurches and jerks which are ordinary and usual to the proper operation of the train, but that he does not assume the risk of extraordinary or unusual lurches and jerks resulting from substandard operation of the train. The same issue can be characterized in terms of the standard of care of the railroad. Thus, it can be said that the railroad owes a duty to operate its train with the degree of care of an ordinary prudent person under similar circumstances which includes some lurching and jerking while a train is in motion or commencing to move under ideal circumstances. So long as the lurching or jerking is not extraordinary due to substandard conduct of the railroad, there is no breach of duty and, hence, no negligence on the part of the railroad. The latter characterization of the issue clearly seems preferable and is consistent with the manner in which the jury is instructed under our standard jury instructions.”

Last, defendant in his brief readily admits that the correctness of the summary judgment is based in large part upon the applicability of the doctrine of assumption of the risk which now has been merged into the doctrine of comparative negligence under the holding in Blackburn, supra.

Accordingly, the summary judgment is reversed and the cause remanded to the trial court for further proceedings. Cf. Carlin v. Goldman Industries, Inc., 347 So.2d 827 (Fla. 3d DCA, opinion filed July 6, 1977).

Reversed and remanded.

      . This opinion was not available to the trial judge at the time he entered the summary final judgment in this action.


author: PER CURIAM.

text:
    DIVISION OF PARI-MUTUEL WAGERING DEPARTMENT OF BUSINESS REGULATION, State of Florida, Appellant, v. W. F. CAPLE, Appellee.
    No. 76-1569.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Rehearing Denied Oct. 26, 1977.

      William A. Hatch, Tallahassee, for appellant.
    Rentz, McClellan & Haggard, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal from a permanent injunction which prohibits the appellant Division of Pari-Mutuel Wagering from temporarily suspending the appellee from his occupation as a thoroughbred racehorse trainer. The trial court order also declared that Sections 1.06(15) and (16) of Chapter 7E, Florida Administrative Code, are unconstitutional and invalid.

We concur with the trial judge’s well-reasoned opinion that the above cited sections of the Administrative Code violate the principles of law set forth in State v. Baldwin, 159 Fla. 165, 31 So.2d 627 (1947), and we therefore affirm the order of the trial court.

However, because of changes in the Code concerning the ultimate responsibility of trainers for insuring compliance with the Code and given the considerable lapse of time since the Baldwin opinion, we hereby certify the following question to the Supreme Court as a question of great public interest:

Is a thoroughbred horse trainer an absolute insurer under Administrative Rule 7E, Sections 1.06(15) and (16)?

The judgment of the trial court is affirmed and the above question is certified as noted.


author: SMITH, Judge.

text:
    The UNITED FACULTY OF FLORIDA FEA/UNITED, AFT-AFL-CIO and Florida Public Employees Relations Commission, Appellants, v. Robert BRANSON et al., Appellees. Robert BRANSON et al., Appellants/Petitioners, v. PUBLIC EMPLOYEES RELATIONS COMMISSION et al., Appellees/Respondents.
    Nos. BB-98, BB-295, CC-37 and DD-410.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1977.
    Rehearing Denied Oct. 28, 1977.

      Sidney L. Matthew, of Tallahassee, for United Faculty of Florida, FEA/United, AFT-AFL-CIO.
    Stephen Marc Slepin, of Slepin Schwartz, Tallahassee, for Branson, et al.
    Jack L. McLean & Gene L. Johnson, Tallahassee, for Public Employees Relations Commission.
   SMITH, Judge.

These four consolidated cases concern the March 1976 faculty union election in the State University System, as a result of which the Public Employees Relations Commission (PERC) certified the United Faculty of Florida (UFF) as bargaining agent on June 22, 1976.

In Case BB-98, PERC and UFF appeal from a Leon County circuit court judgment granting declaratory and injunctive relief in litigation preceding the election and certification. The circuit court ordered PERC to permit the ten plaintiffs, all professors in the university system, to examine the “dated statements signed by at least 30 percent of the employees in the proposed unit, indicating that such employees desire to be represented for purposes of collective bargaining by the petitioning organization [UFF].” Section 447.307(2), Florida Statutes (1975). The ten professors asserted entitlement to inspect those signature cards as public records examinable under Section 119.07, Florida Statutes (1975). They urged also that PERC’s refusal to permit inspection effectively denied plaintiffs “a reasonable opportunity to verify and challenge the signatures” as having been “obtained by collusion, coercion, intimidation, or misrepresentation or [as] otherwise invalid.” Section 447.307(2). Over objection by PERC, UFF and intervenor American Association of University Professors, the circuit court found it had jurisdiction under Chapter 119, providing for enforcement of the Public Records Law, and the declaratory judgment provisions of Chapter 86, to which recourse is preserved by the Administrative Procedure Act, Section 120.73, Florida Statutes (Supp.1976). The circuit court held the signed and dated cards are public documents which may be inspected under Chapter 119 and that the ten professors “may verify and challenge” the cards by authority of Section 447.307(2).

In Case BB-295, the ten professors appeal from the circuit court’s subsequent order declining to restrain the scheduled election on grounds PERC persisted in denying inspection of the signature cards. The circuit court denied the restraining order on the ground it lost jurisdiction when PERC and UFF appealed to this court in Case BB-98. Fla.App. Rule 5.12(1), provides for supersedeas without bond upon appeal by any public body. Section 119.11 provides there shall be no automatic stay on appeal of orders entered under Chapter 119 and requires that a stay application show a “substantial probability that opening the records for inspection will result in significant damage.”

In Case CC-37 the ten professors petition for review of PERC’s order issued by Chairman Curtis Mack on April 2, 1976, which certified UFF as bargaining agent following the election on March 2 and 3, 1976. Petitioners attack Chairman Mack’s order on the substantive grounds later addressed to the June 22, 1976 order of the full Commission in Case DD-410, and on the additional ground that Chairman Mack was disqualified to be chairman of PERC because he was otherwise employed by the State. Section 447.205(1), Florida Statutes (1975).

In Case DD-410, the ten professors petition for review of the June 22, 1976 PERC order which rejected petitioners’ objections to the certification of UFF following the election. Petitioners urge on numerous grounds that PERC’s certification of UFF was erroneous and must be set aside.

Cases BB-98 and BB-295

Twice recently we have emphasized limitations on the circuit court’s jurisdiction to enjoin or grant declaratory relief concerning agency action for which Chapter 120 provides a remedy. State ex rel. Dep’t of Gen. Serv. v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). Yet, as we indicated in Willis, 344 So.2d at 588, the Public Records Act explicitly authorizes injunction suits against administrative agencies notwithstanding the existence of administrative remedies. Section 119.11, Florida Statutes (1975). Recourse to the circuit court was preserved by amendment to Section 120.73 in 1975:

“Nothing in this chapter shall be construed to repeal any provision of the Florida Statutes which grants the right to a proceeding in the circuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of chapter 86. . ”

The ten professors’ claim of entitlement to inspection of the signature cards was based both on the Public Records Act, Chapter 119, and on the Public Employees Relations Act (PERA), Section 447.307. No statute authorized the circuit court to assume jurisdiction of the latter as well as the former claim.

After the circuit court ruled in Case BB-98, the Supreme Court held, in School Board of Marion County v. PERC, 334 So.2d 582, 584-85 n. 10 (Fla.1976), that the Marion County School Board had not satisfied formal requirements of Section 447.307(2) for inspection of signature cards, and so denied the School Board’s request for inspection without prejudice to renewal in proper form. The Court denied the Marion County School Board’s claim to free access under Chapter 119, saying “[t]o this extent section 447.307(2) may actually operate as an exemption to section 119.01, as recognized in section 119.07(2)(a).” (emphasis added) While the Court’s language was tentative, its denial of relief under Chapter 119 was unequivocal. Thus, signature cards discoverable under PERC restrictions are exempt from the free access provided by the Public Records Law, Chapter 119. See also Bassett v. Braddock, 262 So.2d 425 (Fla.1972).

In accordance with our view expressed in Willis and Mitchell, we hold that the circuit court’s jurisdiction was limited to determining the applicability of Chapter 119 and did not extend to determining, as well, whether the signature cards should have been produced for inspection by the ten professors pursuant to Section 447.-307(2). Adequate remedies for administrative determination of that question, and for judicial review, existed under Chapter 120, and no emergent or other unusual circumstances were sufficiently shown to bypass the administrative remedy. Much could doubtless be said for the economy of considering all questions pertinent to the signature cards in a single proceeding, but were we to approve an expansion of the circuit court’s jurisdiction to decide pendant questions determinable under available and adequate administrative remedies, we would quickly dissipate the benefits of a uniform Administrative Procedure Act. Because the circuit court erred in finding signature cards are public records and lacked jurisdiction to consider the other question, the judgment in BB-98 must be reversed and the case dismissed. We therefore do not reach the question of whether the circuit court ought to have enjoined the election pending UFF’s appeal here.

Case CC-37

We dismiss the ten professors’ interlocutory petition for review of Chairman Mack’s order of April 2, 1976 overruling petitioners’ objections to the election and certifying UFF. PERC’s final order having that effect is now before us for review, and no useful purpose would be served by reviewing the chairman’s interlocutory action. Panama City v. PERC, 333 So.2d 470 (Fla. 1st DCA 1976); Amalgamated Transit Union v. PERC, 344 So.2d 319 (Fla. 1st DCA 1976).

Case DD-410

The ten professors, complaining of PERC’s order overruling their objections of March 11, 1976 to the election held March 2 and 3, 1976, and of PERC’s subsequent order certifying UFF as exclusive bargaining agent for the unit, urge error in (1) PERC’s refusal to permit the ten to inspect signature cards submitted by UFF as indication of employee interest in collective bargaining representation, Section 447.307(2); (2) PERC’s refusal to register their organization, the Committee of Concerned Faculty, as an employee organization under Chapter 447; (3) PERC’s overruling of objections by the ten to post-election procedures of PERC and its chairman leading to certification; and (4) PERC’s refusal to accord the ten a Section 120.57(1) trial-type proceeding on factual issues raised by petitioners’ objections to the election, post-election processes and eventual certification.

Petitioners’ demand for inspection of signature cards submitted by UFF pursuant to Section 447.307(2) was untimely. The statutory scheme requires submission of “dated statements signed by at least 30 percent of the employees in the proposed unit,” indicating a desire for collective bargaining representation, as a predicate for a PERC hearing and order for an election. Section 447.307(3). Hearings on UFF’s petition for certification were held in March through May 1975, pursuant to notice which is not shown here to have been inadequate. Section 447.307(3)(a). Following closure of hearings on May 19, 1975, several months elapsed in settling the identification of bargaining units. A preliminary order for election was entered by PERC February 5, 1976. A further order specifying details of the election was entered February 23, 1976.

The ten petitioners made no request to inspect the signature cards submitted by UFF until January 27, 1976, long after hearings on the adequacy of UFF’s preliminary showing were closed in May 1975. Petitioners’ initial letter demand was simply that; it made no assertion of petitioners’ belief that the cards submitted were invalid on grounds specified in Section 447.307(2):

“Any employee, employers, or employee organization having sufficient reason to believe any of the employee signatures were obtained by collusion, coercion, intimidation, or misrepresentation or are otherwise invalid shall be given a reasonable opportunity to verify and challenge the signatures appearing on the petition.”

A formal demand for inspection of cards was made February 12, 1976, after PERC’s preliminary order for election, which we may assume satisfied the statutory requirement for demonstration of a “sufficient reason to believe” a number of the signature cards were invalid. School Board of Marion County v. PERC, supra.

PERC did not err by refusing to accede to petitioners’ tardy request for access to the signature cards. The time to appropriately challenge UFF’s satisfaction of threshold requirements was when notice was given of its petition, or during the hearings ended May 19, 1975. Petitioners have not shown they had no “reasonable opportunity” to verify and challenge the signatures before closure of the hearings on that potential issue.

Petitioners’ application of January 21, 1976 for registration of their employee organization, Committee of Concerned Faculty, was denied by PERC’s chairman on January 22, 1976 on the ground that the organization, whose purpose was to oppose collective bargaining in the academic community, was “not required to register with the Commission.” There was no error in this. Section 447.203(10) broadly defines “employee organization” as including any association or professional society or group “however organized or constituted” which represents or seeks to represent public employees in matters relating to their employment by a public employer. But registration of employee organizations is necessary only for those which desire to request recognition by a public employer or an election for collective bargaining purposes. Section 447.305(1). Other employee organizations, though they have standing to timely request inspection of signature cards submitted under Section 447.307(2) and to complain of unfair labor practices under Section 447.503, have no statutory right of participation in an employee election. PERC may no doubt provide by rule for registration of employee organizations which seek participation in proceedings where their member employees could appear individually, but PERC’s refusal to register the Committee of Concerned Faculty in February 1976 was inconsequential and was not error.

The ten professors’ objections to election and post-election procedures by PERC and its chairman were properly overruled as having been made by persons without standing. Petitioners as employees of the State University System had and enjoyed the right to campaign and vote against union representation, or against representation by any particular organization, but individual employees who were not previously recognized as formal parties to Section 447.307 proceedings must express all their objections at the ballot box. Neither the employer nor any participating employee organization timely asserted before PERC the objections to election and post-election procedures here urged by petitioners.

Finally, because petitioners’ substantial objections to the certification process were submitted either tardily or without standing, PERC did not err in denying petitioners’ belated request, in April 1976, for a formal hearing pursuant to Section 120.57.

The circuit court’s judgment in No. BB-98 is REVERSED. The appeal in No. BB-295 and the petition for review in No. CC-37 are DISMISSED. The prayer of the petition for review in No. DD-410 is DENIED.

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

      . Section 119.07(2)(a) exempts from inspection “[a]ll public records which presently are provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law . . .


author: PER CURIAM: SMITH, Judge,

text:
    Samuel GARTNER and Clara Gartner, Appellants, v. ATLANTIC NATIONAL BANK OF JACKSONVILLE, a National Banking Association, Appellee.
    No. DD-212.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1977.
    Rehearing Denied Oct. 27, 1977.
    Adam G. Adams, II, of Adams & Adams, Steven A. Werber, of Corrigan, Werber & Moore, Jacksonville, for appellants.
    Anderson M. Foote, Jr., of Ulmer, Murchison, Ashby & Ball, Jacksonville, for ap-pellee.
   PER CURIAM:

Appellee Bank instituted this suit against Appellants alleging that the Appellants were indebted to the bank in the sum of $1,695,000.00 upon a written instrument of guaranty guaranteeing the obligations of Plummer’s Cove Ltd. as debtor of the bank upon construction loans. Appellants filed answer admitting the execution and delivery of the guaranty but denied that they were indebted to the bank under such guaranty. In addition to such answer of admission and denial, Appellants filed affirmative defenses alleging that the bank was guilty of negligent and inequitable conduct in the disbursement and general inspection and management of the construction loan fund and agreement out of which the subject indebtedness arose. Appellants further alleged by such affirmative defenses that the bank’s conduct in the handling of such construction loan fund and agreement was without the knowledge or consent of the Appellants and that such conduct prejudiced them, thereby totally or partially relieving them of their obligations under the guaranty agreement. Appellants also filed a counterclaim against the bank for damages claimed to have been suffered by them as the result of the alleged negligent conduct of the bank. The bank did not reply to the affirmative defenses but did answer the counterclaim. In such answer, the bank admitted that substantial portions of the work performed by the owner’s contractor were not done in a workmanlike manner or in accordance with the plans and specifications, and that the contractor was paid by the owner for work which was not done or which was incorrectly performed. The bank further admitted that the surety on the contractor’s performance bond claimed to be released from its obligation under its bond by reason of the owner’s (debtor’s) conduct and by reason of alleged negligent conduct on the part of Appellee Bank. The bank admitted by such answer to the counterclaim that there were insufficient loan funds available to complete the project. But it denied that any negligent conduct on its part played any part in the defaults of the contractor or in the fact that there existed such insufficient loan funds for such purpose of completion.

Following the filing of its answer to Appellant’s counterclaim, the Appellee Bank moved for summary judgment both as to the main suit of Appellant’s and the counterclaim. Appellants had asked for jury trial in their answer and counterclaim.

The disbursement of funds by the bank from the construction loan was to be controlled by the provisions of a building loan agreement between the bank and the debt- or (owner). The guaranty agreement, subject of this suit, obligates the guarantors, among whom are the Appellants, to guarantee the due and prompt payment and performances by the debtor of all its in-debtednesses and liabilities under said building loan agreement. It is stated in the guaranty agreement that the purpose of the guaranty was to induce the bank to extend credit to the owner (debtor) pursuant to such building loan agreement.

Appellants allege that in and by the terms of the building loan agreement, the bank promised that as a condition to advancing funds to the debtor: (a) the loan documents would be current in all respects, (b) improvements would be constructed with good quality materials and in good and workmanlike condition and in strict accordance with the plans; (c) that the bank would obtain from the debtor evidence that prior bills had been paid and that there were no liens filed against the property, (d) that there were sufficient undisbursed loan funds to complete the project, and (e) that the bank would obtain from the debtor an architect’s or engineer’s certificate certifying the correctness of each such advance. Appellants contend that the bank disbursed the loan proceeds to the debtor without first having assurance that these conditions were met, thereby jeopardizing their obligations under their guaranty agreement.

In support of its motions for summary judgment, the bank attached affidavits of two of its officers in which they stated that they were not aware of changes in the plans and specifications and that they were not requested to approve changes and did not do so. But Mr. Nuzum gave a deposition in which he stated that in the course of his duties as loan officer of the bank, he customarily inspected the project and that the purpose of his inspection was to determine that the project was being built in accordance with the plans and specifications. He further stated that the inspecting architect for the project was either selected or approved by the bank, and that he, Nuzum, relied on the architect’s certification in making disbursements. That at no time did he question the architect’s certifications. He further deposed that early in 1974 he suspected that there would not be enough money to complete the project resulting from the contractor changing his schedule of values so that he could get more money on the front end of the contract. Contrary to his affidavit statement that he did not approve any changes in the plans and specifications, he acknowledged in his deposition that an additional loan of $120,-000.00 was made for the purpose of paying the costs of change orders to the contract. He further' stated in his deposition that he did approve payments to the contractor based upon such changes.

Although Appellants did not file any counter-affidavits in opposition to the motion for summary judgment, it is evident from the admissions made by the bank in its answer to the counterclaim and the testimony of Nuzum given in his deposition which is a part of the record in this case that justiciable issues of fact exist in the record on the question of the bank’s alleged negligence in the management of the construction loan fund and whether such conduct on its part materially affected the Appellant’s liability under their guaranty agreement, all such as to forestall the entry of summary judgment. See Dorsy et al. v. Maryland National Bank, 334 So.2d 273 (Fla. 3 DCA 1976); Davis v. 7-Eleven Food Stores, Inc., 294 So.2d 111 (Fla. 1 DCA 1974); Jenkins v. Graham, 237 So.2d 330 (Fla. 4 DCA 1970).

Our Supreme Court has held that the constitutional right to jury trial demands that particular care be accorded in ruling on motions for summary judgment to the end that controverted issues of fact be resolved not upon pleadings and depositions but by the jury functioning under proper instructions. Drahota v. Taylor Construction Company, 89 So.2d 16 (Fla.1956).

We therefore reverse the summary final judgment entered by the trial judge and remand for further proceedings in accordance with the views herein expressed.

MASON, ERNEST E., Associate Judge (Retired) and DREW, E. HARRIS, Associate Judge (Retired) concur.

SMITH, Acting C. J., dissents.

SMITH, Judge,

dissenting:

The guarantors’ argument, adopted by the majority opinion, transforms contractual obligations of the owner/debtor and guarantors to the bank into obligations at law of the bank to the guarantors. The duties thus transformed and imposed on the bank, exactly contrary to the written contracts between the parties, provide the only and inadequate basis for the guarantors’ claim that the bank acted negligently in the disbursement of the construction funds and so have released the guarantors.

The allegations of the guarantors’ complaint to the contrary notwithstanding, it was not the bank but the debtor which in writing covenanted to fulfill “the following conditions as to each advance”: (a) “That the terms and conditions of the Loan Documents have been complied with and there is then no existing default thereunder”; (b) “That the Improvements have been constructed in a good and workmanlike manner in strict accordance with the Plans and materials used therein are of good quality”; (c) “That the Owner has procured (if required by Mortgagee) verified mechanics’ lien waivers and receipted bills showing payment of all parties who have furnished materials or performed labor of any kind entering into the construction or installation of any of the Improvements”; (d) “That the Owner has furnished to the Mortgagee evidence satisfactory to the Mortgagee that the undisbursed proceeds of this Loan will be sufficient to pay the cost of completing the Improvements as required by the Loan Documents”; and (e) “That Owner has furnished to Mortgagee, at no cost to Mortgagee, in connection with each request for an advance, the certificate of such architect or engineer as Mortgagee shall designate that such advance, in the amount requested, is properly to be made by Mortgagee hereunder.”

It was not the bank but the guarantors who contracted to assume performance of the debtor’s obligations under the note and loan agreement concerning conditions for the advancement of funds. By the contract documents the bank undertook no similar duty affecting disbursements:

“Mortgagee may, at its option, disburse funds to Owner whether under the terms of this Building Loan Agreement such disbursement is required or not.”

The burden of the guarantors’ affirmative defense and counterclaim is that the bank, “without complying with or requiring said Owner to comply with the aforesaid conditions,” disbursed funds to the owner for the payment of work not performed by the owner’s contractor “in a workmanlike manner or in accordance with the plans and specifications” and “acquiesced in numerous changes and deviations from the plans and specifications.” That is alleged to have resulted in a disclaimer of liability by Highlands Insurance Company on the owner’s payment and performance bonds, to which security the guarantors, upon satisfaction of the owner’s liability, would be subrogat-ed. However, the bank undertook no duty to protect the guarantors’ access to the security from the consequences of the owner’s failure to perform as agreed and as assured by the guarantors. Any doubt is dispelled by the explicit terms of the guaranty agreement:

“Guarantors authorize the Bank, without notice or demand, and without affecting Guarantors’ liability hereunder, to make further advances to renew, compromise, extend, accelerate or otherwise change the time of payment of or otherwise to change the terms of the indebted-nesses or other obligations of the [owner], or to increase or decrease the rate of interest; to take and hold security for the payment of this Guaranty or the obligations of the [owner], and to exchange, waive and release such security; to apply all security and to direct the order and manner of sale thereof; to release or substitute collateral.” (Emphasis added.)

The additional loan of $120,000, referred to in the majority opinion, was supported by an additional promissory note executed by the owner, subject to the loan agreement, and by a separate “absolute and continuing” guaranty, incorporating the same terms, executed by the guarantors.

We need not speculate on the result if the bank were accused of fraud or overreaching; or of taking control of the debt- or’s affairs and the construction project itself, Dunson v. Stockton, Whatley, Davin & Co., 346 So.2d 603 (Fla. 1st DCA 1977); Dorsy v. Maryland Nat’l Bank, 334 So.2d 273 (Fla. 3d DCA 1976); or of releasing security in hand after the guarantors discharged the owner’s debt. The guarantors’ contract does not offend public policy. Its terms authorizing the bank to release security — assuming the bank’s actions in law constituted a release of security — are countenanced by Section 673.606(l)(b), Florida Statutes (1975). The trial court gave effect to the contract as in my opinion it was bound to do. Home Development Co. of St. Petersburg v. Bursani, 178 So.2d 113, 117 (Fla.1965), quoting Beach Resort Hotel Corp. v. Wieder, 79 So.2d 659, 663 (Fla.1955). I find no conflicts in the record evidence, but any that can be made to appear are immaterial. I would affirm.

      .Contrast Keller v. Gen. Motors Acceptance Corp., 233 La. 320, 96 So.2d 598 (1957), the cited authority for the overbroad American Jurisprudence statement, adopted by the Court in Dorsy, that “[T]he law imposes on the creditor an obligation not to deal with the debtor, or any security for the debt, in such a manner as to harm the interests of the guarantor.” 38 Am.Jur.2d Guaranty 1135 (1968). The guaranty agreements here provide that “Guarantors shall have no right of subrogation until all of the obligations of the [owner] to the Bank have been paid in full, even though such obligations are in excess of Guarantors’ liability hereunder.”

      . “The holder discharges any party to the instrument to the extent that without such party’s consent the holder . . . [unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse” (emphasis added).

      . “ ‘[Cjourts may not rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain.’ ”


text:
    Michael E. PITTARO, Appellant, v. STATE of Florida, Appellee.
    No. 75-1959.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1977.
    Rehearing Denied Oct. 25, 1977.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal we are of the opinion that the final judgment should be affirmed except that portion which directs defendant-appellant to make restitution “in the amount of $500.00” which the record does not support. At most, the record supports $253.48 as the amount appropriated from the defendant’s employer.

Accordingly, the final judgment containing special condition of probation is modified to the extent that restitution shall be in the amount of $253.48.

AFFIRMED, AS MODIFIED.

DAUKSCH, ANSTEAD and LETTS, JJ., concur.


author: KANEY, FRANK N., Associate Judge.

text:
    Sal E. MIRENDA, Jack Lamp, Cromwell Development Corporation, Oxford Development Corporation and Berrington Construction Company, Appellants, v. Harry R. STEINHARDT, Appellee.
    No. 76-856.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1977.
    Rehearing Denied Oct. 28, 1977.

      Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellants.
    Ray Sandstrom of Sandstrom & Hodge, Fort Lauderdale, for appellee.
   KANEY, FRANK N., Associate Judge.

Defendants below file this appeal from a Final Judgment in favor of Plaintiff-Appel-lee in the amount of $4,600 together with costs of $1,198.

The Plaintiff sued the Defendants for fraud and breach of contract, alleging a loss of view of the Intracoastal Waterway from the balcony of his condominium apartment.

After visiting the condominium apartment project known as Cromwell West which was then under construction and development by the Defendant-Cromwell Development Corporation, and discussing the matter with Defendant-Sal Mirenda, president of Cromwell Development, Plaintiff on August 9,1972, entered into and executed a written contract for the purchase of apartment unit 412 at Cromwell West in Fort Lauderdale.

Plaintiff testified that his primary reason for selecting a unit at Cromwell West was the fact that it had a view of the Intracoas-tal Waterway which was located some 400 to 600 yards to the east of Cromwell West. He said that he had observed and experienced this view for himself prior to executing the contract and that the brochure made available by Cromwell Development contained the following statement: “Fish from your own dock or just relax and watch the yachts ply the Intracoastal Waterway to the open sea from your own private balcony.” Based on these statements and being advised by Defendant-Mirenda that Cromwell was going to build an identical building to the east but that the view of the Intracoastal from Cromwell existing on August 9,1972, would remain constant he executed the contract, and paid a $2,000 deposit into escrow. The closing was to be held in mid-December, 1972, but was not held until May, 1973.

Prior to August of 1972 the plans for the building on the east, which was called Cromwell East, were on file with the appropriate governmental bodies. Had anybody chosen to look at them they would have seen that Cromwell East was to be built much closer to the north property line than was Cromwell West therefore masking the view of the Intracoastal from Cromwell West.

Mirenda testified that he did not look at these plans and discover the view blockage until late 1972. In January of 1973 he sent a letter to all those persons who had executed contracts. The letter stated that because of the location of Cromwell East some of the purchasers would be prevented from having a view of the Intracoastal, and advising them that if they wished to rescind their contract for that reason to notify Cromwell Development in writing and the deposit would be refunded.

Plaintiff received this letter but did nothing whatsoever about it. At the closing in May, 1973, he did not mention the letter instead he paid the contract price and took a warranty deed.-

In February, 1974, he brought this lawsuit.

37 Am.Jur.2d Fraud and Deceit, § 394, states the general rule which is followed in Florida.

. . Where a contract is wholly executory, neither party having performed any part of it, if one party ascertains that the other has been guilty of fraud in the procuring or making of the contract or with reference to the subject matter thereof, he may repudiate the contract, since it is in no way binding upon him, and in such circumstances the defrauded party may not remain silent as to the fraud and perform the contract and then claim damages for the fraud. It is very generally held that one who discovers that fraud has been practiced upon him while the transaction remains wholly executory, but nevertheless either executes or performs it on his part or requires performance on the part of the other thereby waives the fraud and cannot subsequently maintain an action for damages therefor.”

Street v. Bartow Growers Processing Corp., 67 So.2d 228 (Fla.1953), follows this general rule. In that case our Supreme Court said:

“The party claiming fraud, misrepresentation or deceit cannot sit idly by and wait until conditions suit him to put the other party on notice or to take action with reference to rescission of a sales contract, or to claim damages because of a claimed inaccurate financial statement.”

While both parties agree that this is the law in Florida, they differ over whether the contract was still executory.

Appellee contends that the contract had gone beyond that stage because after signing it, he had ordered and became obligated to third parties for custom drapes, household furnishings and the like.

Were we to accept Appellee’s contention we would destroy executory contracts. Any time a party enters into a contract he changes his position from what it was just before he signed. Generally after signing a contract a party will begin preparations to perform the contract. The preparations to perform do not make the contract executed.

Thus where the Appellee’s response to the letter advising that the statement concerning his view of the Intracoastal might not be true was to say and do nothing except to complete the contract and accept a warranty deed, he cannot recover from the developer on the basis of the developer’s misrepresentation. The case should not have been submitted to the jury on this ground.

One of the counts in the complaint was for breach of contract. The trial judge’s instructions on this count was a lengthy background briefing on the law of contracts. His instructions included a dissertation on the legal requisites for the formation of a contract even though there had been no dispute about the fact that Appellee and Cromwell Development had entered into a contract. He instructed on the law relating to determination of whether a contract is unenforceable for vagueness or indefiniteness, and the fact that separate writings taken together may sometimes form an agreement. There had been no testimony nor argument touching on either of these points. This was clearly error. Instructions to the jury must be predicated upon facts in proof, and a charge on an issue as to which evidence has not been submitted will constitute error. Bashaw v. Dyke, 122 So.2d 507 (Fla. 1st DCA 1960); 32 Fla.Jur., Trial, § 38.

The Florida Supreme Court said in Sirmons v. Pittman, 138 So.2d 765 (Fla. 1st DCA 1962), at page 770:

“As a general proposition, instructions to the jury should clearly and concisely state the issues of fact and the law applicable to the case . . . The parties to the trial are entitled to have the issues of fact submitted to the jury without the introduction of extraneous matter that may mislead the jurors or divert their minds from a consideration of the evidence pertinent to the real issues. It follows, as a further general proposition, that the jury should not be charged with abstract rules of law applicable to any case, or with mere statements of law in general terms, even though correct, unless they are made applicable to the issues in the case at bar.”

Was this a harmless error? We cannot say. The case was submitted to the jury on two grounds. Which did they render a verdict upon? The only way to determine is to resubmit the cause to another jury without the extraneous charges on the law of contracts. The case must be reversed for a new trial.

We have considered the Appellants’ other points and find them to be without merit.

REVERSED and REMANDED.

ALDERMAN, C. J, and DAUKSCH, J., concur.


author: BARKDULL, Judge.

text:
    COMMODORE PLAZA AT CENTURY 21 CONDOMINIUM ASSOCIATION, INC., et al., Appellants, v. Norman COHEN, Trustee, Appellee.
    Nos. 76-767, 76-1010, 76-1225, 77-536 and 77-538.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Rehearing Denied Oct. 25, 1977.

      Joseph S. Paglino, Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Gerald F. Richman, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   BARKDULL, Judge.

Commodore Plaza at Century 21 Condominium Association, Inc., defendant/counter-plaintiff/lessee in the trial court, appeals from 5 orders, all arising out of a single circuit court ease between the parties.

On March 21,1973, plaintiff (Norman Cohen, Trustee), the assignee-lessor of rights under a ninety-nine year lease which had previously been entered into between Saul J. Morgan, et al., as lessors, with the Association, as lessees, filed a complaint against the lessees for the appointment of a receiver, an injunction, punitive damages, and the recovery of lease rental payments due under the ninety-nine year lease between the parties, together with attorney fees and interest. The lease provided for rental payments of the recreational area of the condominium properties, at the rate of $19,620.00 per month. At the time of the filing of the complaint, it was alleged that the lessees were in default in the amount of $48,708.86. At the time of the filing of the complaint, the plaintiff sought the appointment of a receiver; in lieu of the appointment of a receiver, the trial court required the rental monies due from the Association to be deposited into the registry of the court.

During the course of the proceedings, the Association made a formal tender of possession of the leased premises to the owner/lessor, contending the .46% of an acre [which included a beach area which faced on Morgan Bay or Maulé Lake] was unusable and constituted a public nuisance because the owner/lessor failed to obtain a permit for a bathing facility pursuant to Section 514.03, Florida Statutes (1973).

At trial, the lessor entered voluntary dismissals against certain of the individual defendants named in the complaint, and the trial court entered a directed verdict on the lessor’s claim for rentals due under the lease, except for those rental monies covered by an escalation clause of the lease. The case then went to a jury on a special interrogatory for a determination of whether or not the bathing beach was a nuisance in fact. The jury found a nuisance in fact did not exist. On April 8, 1976, the trial court entered a final judgment, wherein the court determined that the Association was obligated to lessor in the sum of $887,-784.72, of which $140,179.17 was due to an escalation clause or cost-of-living clause, that sum to be withheld pending a decision on that question in a cause then pending in the Supreme Court of Florida. The court ordered the Association to pay lessor $747,-605.57; the court further ordered that the $140,179.17 be placed in an interest-bearing bank account.

Thereafter, a hearing was held on the question of costs and interest. On May 11, 1976, after hearing, the trial court entered an order and final judgment on costs and interest. The court determined that the Association was indebted to the lessor in the sum of $86,600.70 as interest and court costs. Of this sum, $77,908.00 was allocated, as interest and the balance of $7,698.90 as costs. The court offset the sum of $658.36 as costs taxed in favor of the individual defendants who had been dismissed by the lessor, and entered a total cost judgment for lessor in the sum of $84,942.34.

At another hearing held on June 15, 1976 on the question of attorney’s fees, the trial court entered an order dated June 17, 1976, awarding fees of $155,000.00 to the lessor’s attorneys.

On December 29, 1976, the lessor filed “Motion for Distribution of Monies in Accordance With Final Judgment and Supreme Court Decision”, requesting that the leasehold rentals that were attributable to the escalation clause of the lease, plus all of the monies that have been deposited in the interest-bearing account pursuant to stipulation, be distributed to the lessor, Norman Cohen, Trustee. On February 22, 1977, the trial court entered an order on distribution of monies pursuant to the final judgment and Supreme Court decision. The court awarded the sum of $271,596.62 to the lessor, representing the sums due under the lease through February 10,1977. Thereafter, on March 10, 1977, the trial court entered final judgment on the amount found to be owing in the previous order on distribution. The trial court ordered the Association to pay to the lessor, Norman Cohen, Trustee, the sum of $271,596.62.

This court ordered that all of the appellate cases be consolidated for all appellate purposes.

APPELLATE CASE NO. 76-767

In support of this appeal, the appellant contends that upon showing the appel-lee had failed to obtain a permit pursuant to Section 514.03, Florida Statutes (1973), the operation of the beach in the instant case became a nuisance as a matter of law [pursuant to the terms of Section 514.06, Florida Statutes (1973)], to be decided by the trial court, not the jury. The appellant further contends that by virtue of said nuisance there was a constructive eviction as to at least a portion of the demised premises and it was therefore error to fail to abate a portion of the rental attributable to that eviction. We find these points to be without merit.

There was substantial competent evidence before the jury upon which it could have determined that use of the demised premises did not constitute a nuisance in fact. Thus, there must be a showing in the instant ease that the appellee violated one of the provisions of Ch. 514, Florida Statutes (1973), in order to impose the sanctions provided for by Section 514.06, Florida Statutes (1973). The appellant presupposes, by its argument, that the appellee must have a permit and, therefore, is in violation of Ch. 514, Florida Statutes (1973). The appellee, on the other hand, has alleged that in cases such as the instant case, where uncontrolled waters are involved, the State agency charged with enforcement of Ch. 514, Florida Statutes (1973) does not issue permits. Therefore, a question of fact was raised as to necessity that the appellee herein obtain a permit pursuant to Section 514.03, Florida Statutes (1973). The jury, by its verdict, impliedly found in favor of the appellee on this question and, inasmuch as the record contains substantial competent evidence to support such a finding, we will not disturb that verdict. South American Fire Insurance Company v. Maxwell, 274 So.2d 579 (Fla. 3rd D.C.A. 1973); Thompson v. Jacobs, 314 So.2d 797 (Fla. 1st D.C.A. 1975). Furthermore, in reviewing the record before us we find that the trial judge at pre-trial conference, held February 27, 1976, stated:

******
“ * * * the court has determined that failure to obtain a permit to construct a beach is not a defense to payment of the rents due under the lease. * * * ” ******

Thus, the appellant has at least had a determination as a matter of law of a portion of its point on appeal.

APPELLATE CASES NOS. 76-1010 and 76-1225

By these appeals, the appellant seeks review of the propriety of the trial court’s award of interest to the appellee and the award of attorney fees, entered by the trial court in the appellee’s favor. As our decision thereon is based on the same theories of law, we shall discuss both these cases simultaneously.

In the instant cases, the trial court [subsequent to the entry of the jury verdict and the entry of the final judgment] held a hearing on the question of costs, after which he awarded interest to the appellee on the final judgment. Another post-judgment hearing resulted in the appellee being awarded attorney fees.

In actions at law, interest and attorney fees are properly recoverable as a part of damages in a breach of contract case and, as such, are to be determined by the jury where a case is tried by a jury. Wabash Fire and Casualty Company v. Holloway, 139 So.2d 145 (Fla. 3rd D.C.A. 1962); Riess v. Goldman, 196 So.2d 184 (Fla. 3rd D.C.A. 1967); Grayson v. Fishlove, 266 So.2d 38 (Fla. 3rd D.C.A. 1972); Franklin v. Boyd, 272 So.2d 191 (Fla. 3rd D.C.A. 1972); Schulman v. Cort Aviation Corporation, 330 So.2d 114 (Fla. 3rd D.C.A. 1976); Newcombe v. South Florida Business Negotiators, Inc., 340 So.2d 1192 (Fla. 2nd D.C.A. 1976); 18A Fla.Jur., Interest, § 18. Where the jury, in its verdict, fails to allow or indicate a desire to allow interest and/or attorney fees, there is no authority for the trial judge to assess interest over and above the jury verdict. Wabash Fire and Casualty Company v. Holloway, supra; Riess v. Goldman, supra; Grayson v. Fishlove, supra; Franklin v. Boyd, supra; Schulman v. Cort Aviation Corporation, supra; Newcombe v. South Florida Business Negotiators, Inc., supra; 18A Fla.Jur., Interest, § 18.

Prior to the trial of this cause, the appellant insisted upon its right to trial by jury of all issues raised by the pleadings. Notwithstanding this demand, the trial court determined to submit the cause to the jury on special interrogatories. Both sides were requested to submit interrogatories they desired to be submitted to the jury for its determination. The appellee failed to submit any interrogatories pertaining to interest and/or attorney fees, and there was no evidence before the jury upon which it could determine those issues. After a conference on the issues to be submitted to the jury, the cause was sent to the jury on an interrogatory to primarily determine whether or not the leased premises constituted a nuisance. Failure of the appellee to present these questions as to interest and/or attorney fees by special interrogatory in an action at law would constitute a waiver of. any entitlement for these elements of damages [Newcombe v. South Florida Business Negotiators, Inc., supra], and the trial court would ordinarily have no authority to assess these items of damages against the appellant. However, a review of the pleadings in this cause reveal that the complaint, the affirmative defenses raised in the answer, and the counterclaim have all raised issues that were both equitable in nature and questions at law.

The trial court, prior to sending the cause to the jury, severed the equitable and legal issues and determined the equitable issues in favor of the appellee, finding the appellant liable for rentals under the terms of the lease. This finding was subject to modification only in the event the jury found the existence of a nuisance, which it did not do. Subsequent to the jury’s determination, the trial court held a hearing where the contents of the final judgment in Case No. 76-767 were determined. At said conference, the appellant did not object to the trial court’s reservation of jurisdiction to determine interest or attorney fees. Furthermore, the appellant did not raise this issue on appeal in Case No. 76-767. At subsequent hearings on the questions of interest and/or attorney fees, the appellant did not challenge this reservation of jurisdiction nor did it request a jury trial on either of these issues prior to hearing thereon, as permitted by the ruling in Riddle Airlines, Inc. v. McGahey, 144 So.2d 92 (Fla. 3rd D.C.A. 1962). Therefore, having acquiesced in these procedures, the appellant cannot now challenge the trial court’s authority to determine these issues. State Road Department v. Lewis, 190 So.2d 598 (Fla. 1st D.C.A. 1966); Dade Air Conditioning and Heating Corp. v. Jannach, 218 So.2d 193 (Fla. 3rd D.C.A. 1969); Holmes v. School Board of Orange County, 301 So.2d 145 (Fla. 4th D.C.A. 1974). The other points raised by the appellant, by its appeals from orders awarding interest and attorney fees, we find to be without merit. See: Teate v. Anderson, 122 Fla. 81, 164 So. 849 (1935); Penn-Florida Hotels Corporation v. Atlantic National Bank of Jacksonville, 126 Fla. 344, 170 So. 877 (1936); Parker v. Brinson Construction Company, 78 So.2d 873 (Fla.1955); Huntley v. Baya, 136 So.2d 248 (Fla. 3rd D.C.A. 1962); Belman Hotel Corporation v. Maher, 170 So.2d 591 (Fla. 3rd D.C.A. 1965); English and American Insurance Company Limited v. Swain Groves, Inc. 218 So.2d 453 (Fla. 4th D.C.A. 1969).

Therefore, we hereby affirm the orders appealed in Cases Nos. 76-1010 and 76-1225, on the present record, subject to modification after further proceedings as hereinafter provided.

APPELLATE CASES NOS. 77-536 and 77-538

The appellant in these cases seeks review of an order of the trial court requiring disbursement of those funds representing the escalated rentals to the appellee, and a final judgment for the amount of said funds. Ruling on the escalated rentals was deferred by the trial court, pending the Supreme Court determining the validity of Section 711.231, Florida Statutes (1975). Jurisdiction was retained by the trial court to order distribution of the escalated rentals based upon that ruling.

During hearings before the trial court on contents of the final judgment to be entered in this cause, considerable controversy arose as to the distribution of the escalated rentals paid into the registry of the court. The appellant contended at length that the escalated rents should not be distributed to the appellee, pending determination of the validity of Section 711.231, Florida Statutes (1975). The controversy was resolved by the parties agreeing to the trial court’s deferring of ruling on the distribution of the escalated rentals, pending determination of that issue by the Supreme Court of Florida. Arsenault v. Thomas, 104 So.2d 120 (Fla. 3rd D.C.A. 1962); Union Trust Company v. Baker, 143 So.2d 565 (Fla. 2nd D.C.A. 1962); Holmes v. School Board of Orange County, 301 So.2d 145 (Fla. 4th D.C.A. 1974). Therefore, we find no error in the order and judgment appealed in Cases Nos. 77-536 and 77-538, and hereby affirm.

Lastly, this court, by its order of May 2,1977, permitted the appellant to file a supplemental brief wherein it alleged error on the part of the trial court in dismissing the appellant’s original answer and counterclaim, wherein the appellant alleged [as affirmative defenses] unconscionability of the leasehold and unconscionability of the amount of rental for the facilities provided. The appellant also counterclaimed, alleging [among other things] that the ap-pellee was unjustly and illegally enriched under the terms of the lease. In support of its contention, the appellant relies on Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.1977).

Inasmuch as the trial court did not have the benefit of Avila South Condominium Association, Inc. v. Kappa Corporation, supra, in reaching its decision, we hereby remand this cause to the trial court for reconsideration of the appellant’s original pleadings in light thereof and for further proceedings not inconsistent therewith. In this regard, if it is the trial court’s final determination to modify the rental due under the lease, pursuant to the principles announced by the Supreme Court in Avila South Condominium Association, Inc. v. Kappa Corporation, supra [which would relate back to the time of the filing of the counterclaim], then the trial court should reconsider [in addition to the amount of rent that may be due] the amount of attorney fees and interest. If the trial court should ultimately alter the terms of the lease because it finds it to be unconscionable, then the rent would have to be adjusted accordingly and, if the rent has already been paid, then the trial court may have to make appropriate provisions to require the return of that part of the rent paid which represents unconscionable rent, or it may determine to apply such excess payments to future payments. In other words, the trial court may be required to do equity between the parties in light of all the circumstances, including the length of time that this litigation has been pending.

Affirmed in part, reversed in part, and remanded with directions.

      . The lease provided, in regard to attorney fees: “ * * * In any proceeding arising by reason of an alleged failure of the Lessee to perform any of its duties and obligations pursuant to the provisions hereof, or by reason of an alleged breach of any of the terms and/or conditions or covenants of this Lease, or by reason of any default in the payment of any monies, rentals or sums due or becoming due under the terms and provisions hereof, or by reason of any action by the Lessor to require the Lessee to comply with its duties and obligations hereunder, the Lessor shall, in the event it shall prevail in such action, be entitled to recover its reasonable attorney’s fees incurred, * * * ”

      . ******
      “THIS CAUSE came on before the Court on Plaintiff’s Motion for the Appointment of a Receiver and the Court having considered said Motion, heard testimony of the Plaintiff, NORMAN COHEN, Trustee, heard arguments of counsel and being otherwise duly advised in the premises, it is hereby:
      “ORDERED and ADJUDGED that the Motion for Application of a Receiver be and the same is hereby denied provided, however, that the Defendant Association be and the same is hereby ordered to place into the Registry of the Court or into such bank account or other interest-bearing form of account as is mutually agreed upon by counsel for the respective parties, the sum of $48,708.86, plus the monies due under the terms of said lease for the months of February, March and April, 1973 not later than ten (10) days from the date hereof. In the event said monies are placed in an interest-bearing account, all interest thereon shall become the property of the prevailing party. It is further
      “ORDERED and ADJUDGED that all further monthly rentals as stated under the terms of the lease shall be paid in the same manner as aforesaid on the first day of each month thereafter pendente lite until further Order of Court.”
      $ * ¡(5 * $ $

      . While the trial judge stated he directed a verdict, it is clear that what he had in fact done, was to enter a summary judgment on this issue.

      . This is the subject matter of appeal filed under Clerk’s File No. 76-767.

      . This is the subject matter of appeal filed under Clerk’s File No. 76-1010.

      . This is the subject matter of appeal filed under Clerk’s File No. 76-1225.

      . Fleeman v. Case, 342 So.2d 815 (Fla.1976).

      . This is the subject matter of appeal filed under Clerk’s File No. 77-536.

      . This is the subject matter of appeal filed under Clerk’s File No. 77-538.

      . In this connection, see: Evans v. St. Regis Paper Company, 287 So.2d 296 (Fla.1973); also, Ch. 77-221, Laws of Florida (1977).


author: HENDRY, Chief Judge.

text:
    Artemio CRESPO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1408.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Rehearing Denied Oct. 25, 1977.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   HENDRY, Chief Judge.

Appellant, defendant below, appeals his conviction and sentence for the attempted sale or delivery of a controlled substance (cocaine), in violation of Section 776.04, Florida Statutes (1973).

In seeking reversal of his conviction, appellant has raised three points on appeal. Firstly, appellant contends that the trial court erred in precluding defense counsel from eliciting the address of a confidential informant on cross-examination, in violation of the sixth and fourteenth amendments to the United States Constitution.

We rejected this same contention in a prior appeal brought by appellant to this court from a separate conviction involving the same confidential informant and arising from the same series of drug transactions. See Crespo v. State, 344 So.2d 598 (Fla.3d DCA 1977). In that case, we opined as follows:

“Arthur Moore, a confidential informant, was a key witness for the prosecution. There was no concealment of his identity. The ruling related only to his present address. Here the withholding of the present address of the witness Moore was not without some basis therefor in the interest of the witness and the State. Those factors may not have been of the kind sufficient to have justified the ruling, if disclosure of Moore’s address had been essential in order for him to be properly placed in his environment. However, in this instance revelation of the then present address of the witness was not needed for that purpose. The defendant Crespo had known the witness Moore in Key West for seven or eight years. . . . Thus, without his present address disclosed, the witness was sufficiently placed in his environment for the purpose of cross-examination, and as his environment might avail the jury in weighing his general credibility.” [Citations omitted.] Supra at 599.

We adopt this court’s ruling as set forth above and apply it sub judiee, rejecting appellant’s contention.

Appellant next claims error on the part of the trial court in restricting the extent of his cross-examination of the informant-Moore on two important factual issues, to-wit: the amount Moore was paid in return for his testimony and whether there were pending criminal charges against Moore. After a careful review of the record, it is our opinion that, notwithstanding the trial court’s restriction, defense counsel did in fact elicit from Moore the information sought. As such, any error committed by the trial court would be harmless, as appellant’s rights were not injuriously affected. See Section 924.33, Florida Statutes (1975).

Lastly, appellant contends that the trial court erred in admitting into evidence tape recorded conversations between the informant and him without an intercept warrant having first been obtained by the authorities. In that the confidential informant was present at trial and testified as to both the contents of the conversation and his consent to the taping of said conversation, we find no violation of appellant’s fourth amendment rights. Tollett v. State, 272 So.2d 490 (Fla.1973); State v. Muscara, 334 So.2d 167 (Fla.3d DCA 1976).

In addition, after carefully reviewing the record, we are of the opinion that, notwithstanding appellant’s contention to the contrary, the State provided an adequate predicate as to the authenticity of the recorded conversation enabling the tapes of said conversation to be introduced into evidence. See Gomien v. State, 172 So.2d 511 (Fla.3d DCA 1965).

Accordingly, appellant’s conviction and sentence are hereby affirmed.

Affirmed.