author: RAWLS, Acting Chief Judge. ERVIN, Judge,

text:
    BAY CONVALESCENT CENTER, INC., a corporation, Appellant, v. Alice W. CARROLL, Administratrix of the Estate of Seth M. Carroll, Deceased, Appellee.
    No. CC-468.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1977.
    Rehearing Denied Dec. 29, 1977.

      Jerry W. Gerde, of Davenport, Johnston, Harris, Gerde & Harrison, Panama City, for appellant.
    Lynn C. Higby, of Isler, Higby, Brown & Smoak, Panama City, for appellee.
   RAWLS, Acting Chief Judge.

By this appeal, Bay Convalescent Center, Inc., seeks review of a final judgment entered in favor of appellee Carroll pursuant to a default judgment and a subsequent order denying its motion to vacate default judgment.

Carroll, as administratrix of the estate of her deceased husband, filed a complaint against Bay, alleging that it negligently allowed its patient (Carroll’s husband) to fall out of a bed, in which he should have been constrained, resulting in serious injuries that caused his death. Bay was served with process on April 5,1975, and, pursuant to motion, a default judgment was entered against Bay on May 3, 1975. Following an ex parte trial as to damages, a final judgment was entered in favor of Carroll on June 16, 1975, pursuant to a jury’s verdict.

By motion to vacate default judgment filed June 19, 1975, Bay alleged as excusable neglect that it had immediately turned the complaint over to its insurance carrier, Foremost Insurance Company, which had assured Bay that it would handle the defense of the cause and that its first knowledge of the trial was receipt of a copy of the final judgment. Bay attached a copy of its proffered answer to the motion to vacate which admitted that decedent was paying patient and set out a general denial as to any negligence on its part. As to excusable neglect, Bay attached an affidavit of its executive vice president, reciting that he had promptly forwarded the complaint to an agent of its insurance carrier. Also, the affidavit had attached to it a letter from Bay’s house physician, which affiant stated he received prior to commencement of the action.

The trial court entered its order denying the motion to vacate default judgment and motion for new trial upon the grounds that Bay had failed to make a factual record showing either excusable neglect or a meritorious defense. As to the grounds of excusable neglect, we only comment that, at the most, it was tenuous; however, in view of the fact that the record clearly fails to contain a factual basis as to any meritorious defense, our decision will be restricted to the latter ground.

A meritorious defense contemplates the proffer of a defense worthy of presentation as determined by matters of substance as distinguished from matters of form. The answer tendered by Bay is basically a matter of form, i. e., a general denial. Bay’s house physician’s letter, which is not verified, simply contains a self-serving opinion that Bay rendered competent nursing care and was not negligent. Glaringly missing in this post judgment proceeding is any proffer by Bay of a meritorious defense.

In discussing the role of an unverified pleading, in conjunction with a motion to set aside a default, this court stated in Metcalf v. Langston:

“ . . . the motion contains an allegation of a meritorious defense and a willingness to immediately proceed to trial. “Were there nothing more to consider we would be constrained to hold that the learned trial judge erred in denying the motion to set aside the default. However, appellees have called to our attention, and we find from the record before us, that appellant’s motion to set aside the default, though signed by its attorney, is not under oath and is not accompanied by any affidavit or other proof of the contents thereof. This leads us to a consideration of the procedural aspects of proceedings requisite to vacating and setting aside defaults.
“Appellant urges that the motion speaks for itself, need not be under oath nor accompanied by affidavit and requires no further proof, citing Rule 1.030, RCP, 30 F.S.A. We do not so interpret that rule. The pertinent portion of that rule is as follows:
‘ * * * Except when otherwise specifically provided by these rules or an applicable statute, pleadings as such need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by him that he has read the pleading or other paper; that to the best of his knowledge, information and belief there is good ground to support it and that it is not interposed for delay.’
“The word ‘pleadings’ is defined in 25 Fla.Jur., Pleadings, § 2 as follows:
‘Pleadings are the allegations made by the parties to a suit for the purpose of presenting the issue to be tried and determined. They are the formal statements by the parties of the operative, as distinguished from the evidential facts on which their claim or defense is based.’
“In 23 Fla.Jur., Motions and Order, § 4, is found the following:
‘It is generally recognized that statements of facts in a motion are not evidence of the facts related therein and are not self supporting. Unless a motion is grounded on facts that are either apparent from the face of the record or papers on file in the case or within the judicial knowledge of the court, it must be supported by affidavits or other proofs. * . * *’
“In State v. Board of Control, Sup.Ct.Fla. 1951, 53 So.2d 116, the court said:
‘ * * * Moreover, the motion is not accompanied by any proof of the matters alleged in the motion — assuming, for the sake of argument only that the averments are sufficient — and it is elementary that a motion is not and of itself proof of the averments therein contained.’ (53 So.2d at pages 118 and 119)
“This Court in Thomason v. Jemigan, Fla.App. (1st) 1962, 146 So.2d 905, reviewing an order vacating a decree pro confes-so in an equity action, said:
‘ * * * Unless the grounds of the application to open a default are evident on the face of the record, they should be supported by an affidavit of merit made by the applicant himself, People’s Ice Co. v. Schlenker (1892), 50 Minn. 1, 52 N.W. 219; and where no legal excuse is shown for failure to comply with the rules, the fact that a meritorious defense exists is immaterial. Karnes v. Ramey (1926), 172 Ark. 125, 287 S.W. 743, 744. Statements of counsel, without more, as is the case here, are insufficient to support such an application. Davis v. Teachnor (Ohio App.1943), 53 N.E.2d 208, 212. ‘Finding nothing in the motion to vacate or in the record to indicate that there was any ^regularity in the service of process or in the proceedings leading to entry of the decree pro confesso, and no good cause being shown in support of the unverified motion, the order setting aside the decree pro confesso is without lawful basis. White v. Spears (Fla.App.1960), 123 So.2d 689; Chaney v. Headley (Fla. 1956), 90 So.2d 297. (146 So.2d at pages 906 and 907)
“In Viking Superior Corporation v. W. T. Grant Company, Fla.App. (1st) 1968, 212 So.2d 331, this Court had occasion to consider the procedural method by which service of process could be attacked said:
‘The generally accepted and approved method of supporting and proving the allegations of a motion is by the vehicle of affidavits.’ (212 So.2d at page 334)
“Rule 1.030 RCP clearly provides that except when otherwise specifically provided, pleadings as such need not be verified or accompanied by affidavit. However, that does not mean that pleadings speak for themselves. The pleadings in a cause, under the Florida Rules of Civil Procedure, are merely a tentative outline of the position which the pleader takes before his ease is fully developed on the facts through discovery and evidence. (Vann v. Hobbs, Fla.App.(2d) 1967, 197 So.2d 43)
“Pleadings are normally prepared by counsel. He must of necessity generally prepare his pleadings based upon information furnished by others. The rule therefore provides that the signature of the attorney on a pleading shall constitute a certificate by him that he has read the pleading, that to the best of his knowledge, information and belief there is good ground to support it and that it is not interposed for delay. His signature does not import, indeed it usually cannot import, truthfulness of the facts therein recited. Seldom does the attorney know of his own knowledge the facts which must be recited in his pleadings. It is for that reason that he is not required to make oath that the pleadings are accurate and it is for that reason that the rule does not recite that his signature constitutes a certificate of accuracy, but only that to the best of his knowledge, information and belief, there is good ground to support it.
“A pleading does not, as such, entitle the pleader to relief. If affirmative relief is desired then it is necessary that proof be adduced. . . . ”

Judge Smith, speaking for this court in Scott v. Premium Development, Inc., supra, reaffirmed the necessity for a movant to factually demonstrate a meritorious defense. A timely defense may be asserted in the early stages of litigation by simple pleadings; however, a meritorious defense, to offset a default and final judgment entered thereupon, requires more than a bare allegation denying negligence.

We are not unmindful of this court’s recent opinion in Burbank v. Southland Corporation wherein it was stated, inter alia: “ . . . Had there been no answer filed with the motion to vacate default or allegations of a meritorious defense asserted in the affidavit, then Scott would have required reversal in this case.” The reference as to “answer” might well give the impression that an unverified answer in all cases is adequate to assert a meritorious defense. Such a conclusion does not meet the teachings of Metcalf. Some cases might not necessitate “affidavit proof”, i. e., Burbank involved an issue as a matter of law — not as a matter of proof. Illustrative of such meritorious defenses is an answer alleging that the statute of limitations precludes the action. But, where facts constitute the basis of a meritorious defense, such must be presented by the movant in a manner as set out in Metcalf.

Finally, the well settled rule that a motion to set aside a default judgment addresses itself to the sound discretion of the trial court is once again reaffirmed by this court. The trial court did not err in denying the motion to vacate and set aside the default judgment, the final judgment, and the motion for new trial.

AFFIRMED.

SMITH, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

Absent in this court’s majority opinion is any mention of what has now become the polestar decision of Florida cases relating to motions to vacate defaults. Northshore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962). In Northshore, defendant moved to set aside the default and attached to his motion an affidavit of his attorney in which it was merely alleged the hospital was not negligent in caring for plaintiff’s infant, in whose behalf the father had brought suit against the hospital for damages resulting from alleged negligence and malpractice. The trial court granted the motion to set aside the default and allowed the defendant five days in which to file an answer. The answer was filed and following discovery, the hospital moved for summary judgment which was granted. On appeal to the Third District Court of Appeal, the motion for summary judgment was reversed in part on the ground the motion to vacate and the affidavit did not disclose sufficient cause to set aside the default since no meritorious defense was presented or pleaded. In reversing the Third District Court of Appeal as to that point, our Supreme Court stated:

“The first point of conflict with prior authority arises from the District Court’s holding that no meritorious defense was presented or pleaded by the petitioner hospital. This holding was made in spite of the fact that the motion, together with the affidavit, alleged that the hospital had a meritorious defense to the action inasmuch as it had not been negligent in its treatment of the infant respondent. In Town of North Miami v. State ex rel. Watson, 156 Fla. 340, 22 So.2d 762, we held that the denial of negligence contained in a responsive pleading alleged a meritorious defense so as to create an issue of fact. A similar holding was reached in State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40. See also Benedict v. W. T. Hadlow Co., 52 Fla. 188, 42 So. 239.” 143 So.2d at 852.

Clearly the meritorious defense presented by Northshore Hospital to the trial court was nothing more than a general denial as to any negligence on its part. Here Bay Convalescent Center filed a motion to vacate the default judgment and attached to the motion an answer — not only generally denying negligence — but also filed an affirmative defense alleging that the negligence of Alice W. Carroll’s decedent contributed to the injury. While the motion to vacate default did not, when filed, attach an affidavit, it stated an affidavit would be filed as soon as it could be obtained. Two days subsequent to the filing of the motion to vacate judgment, an affidavit of Edward J. Manzione, Executive Vice-President of Bay Convalescent Center, was filed, in which he referred to an attached letter from Dr. Powell Adams, house physician for Bay Convalescent Center, Inc., wherein Dr. Adams stated in his opinion the death of the administratrix’s decedent was not a result of any neglect of care administered while in Bay Convalescent Center.

The court, at hearing held on July 12, 1976, on the motion to vacate default judgment, had before it all pleadings and affidavits filed. It was therefore aware of Bay Convalescent’s general denial of negligence as well as the proffered affirmative defense. I fail to see any distinction between the asserted meritorious defense presented to the trial court in Northshore Hospital and that submitted to the trial court sub judice, except that in Northshore, the trial court set aside the default whereas here the trial court declined to do so. As stated in State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 138 So. 40, 43 (1931), “ . . .if there be any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial on the merits of the case.”

I fear that recent opinions from this court have eroded the liberal policy enunciated in Northshore Hospital, Inc. v. Barber, supra, and other decisions of the Florida Supreme Court permitting the setting aside of defaults. In a case decided by our Florida Supreme Court as early as 1863, it was stated:

“It is the tendency of the Courts of the present age to stand less upon strict rules of practice than formerly, and to keep the door a long time open to a defendant who seems to be honestly striving to get in what he believes to be a good defense.” Waterson v. Seat and Crawford, 10 Fla. 326, 331 (1863).

Lamentably the passage of time finds us returning to a strict application of the rules. I would reverse.

      . The letter from Bay’s house physician stated:
      “TO WHOM IT MAY CONCERN:
      It is my opinion that while a patient in Bay Convalescent Center Mr. Seth Carroll received competent and adequate nursing care.
      I do not relieve that the death of Mr. Seth Carroll is a result of neglectful care while in Bay Convalescent Center.”

      . Scott v. Premium Development, Inc., 328 So.2d 557 (Fla. 1st DCA 1976).

      . Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974).

      . Burbank v. Southland Corporation, 345 So.2d 1108 (Fla. 1st DCA 1977).


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    Rose G. ROWELL, Appellant, v. Frank E. ALL and Lois E. All et al., Appellees.
    No. FF-235.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1977.

      James 0. Shelter, Tallahassee, for appellant.
    J. Lewis Hall, Jr., of Hall & Booth, Tallahassee, for appellees.
   SMITH, Judge.

Plaintiff appeals from a final judgment granting defendants’ motion to dismiss plaintiff’s amended complaint because the pleading reveals on its face that the action is barred by the five-year statute of limitations, Section 95.11(2), Florida Statutes (1975). Plaintiff sued defendants, the remote grantors of plaintiff’s Leon County home, for breach of a covenant of title warranty. Defendants conveyed the property by warranty deed in 1964 to plaintiff’s grantor, who conveyed to plaintiff in 1965. In 1974, when the State of Florida began highway construction across plaintiff’s yard, plaintiff discovered that in 1950 the State had acquired a highway easement by quitclaim from an owner still more remote in the chain of title. The circuit court held that defendants’ breach of warranty occurred in 1964 at the instant of defendants’ conveyance and that the statute of limitations then began to run because the easement, though invisible and undisclosed in fact, was held by the sovereign whose presumed assertion of right is presumed to have constructively evicted the possessor.

A legal fiction, useful enough in a proper context, appears here to have overrun its usefulness. When the grantor’s covenant of warranty is breached by the existence of an undisclosed interest in the government, the grantee may maintain an action on the covenant notwithstanding that the government has not evicted the possessor. 7 G. Thompson, Real Property 372 (1962 repl. vol.). The usual requirement is that the covenantee show his eviction by the holder of the paramount interest. Id., §§ 3196-3200. But the sovereign is said to assert its paramount but undisclosed interest at all times; and the possessor cannot but yield and so is constructively evicted. Thus actual dispossession by the sovereign is not required before the grantor’s action on the covenant of warranty. See generally 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 59 (1965).

When the government’s paramount interest is visible or disclosed at the time the covenant of warranty is made, the grantee is regarded as having contracted mindfully of that interest, and there is no breach of the grantor’s covenant. Van Ness v. Royal Phosphate Co., 60 Fla. 284, 53 So. 381 (1910). But where as here the government’s paramount interest is undisclosed until later, there is an actionable breach of the covenant of warranty. Brewster v. Wegman, 199 So.2d 337 (Fla.2d DCA 1967). Some courts have held that the fiction which justifies the grantee’s action at the time he discovers the government’s interest, though there is no eviction, requires also that the statute of limitations be held to run from the instant the grantor’s covenant was breached, that is to say, when it was made. Annot., 95 A.L.R.2d 913, 942 (1964). By that reasoning the defendants’ covenant of warranty, running to their grantee and to his assigns, was both made and breached in 1964, and Section 95.11(2) foreclosed plaintiff’s action on it after 1969.

There being no Florida precedent requiring that ruling, we decline to run the statute of limitations against a grantee in possession who is unaware of the sovereign’s undisclosed interest and of his own constructive eviction. Rather, we adopt the view of cases holding that the statute of limitations for such a breach of the covenant of warranty does not begin to run until the grantee becomes aware of the sovereign’s theretofore undisclosed interest. Annot., 95 A.L.R.2d 913, 943-45 (1964). The constructive awareness provided the grantee by the recording of an otherwise undisclosed interest does not foreclose his reliance on the grantor’s covenant of warranty. See Brewster, supra.

Plaintiffs action in this case is predicated on the covenant of warranty of her remote grantor, not that of her immediate grantor. We do not consider at this time whether the immediate grantor’s discovery of the sovereign’s easement, before conveying to plaintiff, would start running of the statute of limitations.

REVERSED.

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


author: MELVIN, Judge.

text:
    Ralph E. LOVELACE, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. EE-232.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1977.
    Rehearing Denied Jan. 6, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MELVIN, Judge.

The appellant-defendant filed with this Court his petition for writ of habeas corpus alleging that following the entry of a judgment and sentence against him on June 22, 1971, he requested his court appointed attorney to prosecute an appeal for him and that the attorney failed to do so. Based upon such allegation, we granted under Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967), a full appeal to the defendant. The matter is now before the court on the record and briefs of the parties. The defendant urges reversal of the judgment and sentence upon his bare allegation that “. . . the relator plea was not entered understandingly and voluntarily . . ” The defendant entered a plea of nolo con-tendere to the crime of robbery. He in no way states with any particularity what caused him to involuntarily enter such plea or what it was about the proceedings that he did not understand. So, we have the question as to whether such bare allegation is sufficient to overcome the presumption of correctness that is visited upon a final judgment of a court of competent jurisdiction.

The record does not contain the court reporter’s transcript as to what transpired at the plea session. Those notes have been lost. The record does contain, however, the testimony of an attorney who was present at the time of the entry of such plea. The attorney testified that he was aware of this particular case because he is a relative of the robbery victim. It was the testimony of the attorney that Trial Judge M. C. Blanchard explained to the several defendants, including the defendant Lovelace, in particular, their rights, explored the question of the voluntariness of their plea, and whether they understood the nature of the charge pending against them. Further, the record reveals that the trial judge, in all cases, follows that procedure before accepting a plea of guilty or of nolo contendere. The record also reveals a statement by the court, “Well, what records we do have indicates Defendant was interrogated and his plea was accepted after determining he had done it voluntarily and knowingly. The Clerk so noted it on the Court file at the time and it’s also in the Minutes.”

This defendant, some five and one-half years after a sentence of 10 years in the state prison was imposed upon him, decided that his plea was not voluntarily entered and that he didn’t know what was going on when he entered the plea. Although this Court reviews the judgment and sentence on direct appeal, as distinguished from a proceeding under Fla.R.Crim.P. 3.850, we nevertheless hold that a defendant, seeking on direct appeal to present the question of the voluntariness of his plea, must allege something more than a bare statement that his plea was not voluntarily entered, or that he didn’t knowingly enter it. He should set forth the facts, whatever he perceives them to be, that would classify his plea as being not voluntarily entered and not knowingly entered. See Whitlow v. State, 256 So.2d 48 (Fla.2d DCA 1971).

The defendant has failed to demonstrate reversible error. Accordingly, the judgment and sentence appealed from are

AFFIRMED.

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


text:
    Joseph F. PUTNAM and Vance D. Bishop, as Trustees under Trust No. 17498, Appellants, v. Wilson F. ROUDEBUSH et ux., Appellees.
    No. 76-1560.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.
    Rehearing Denied Dec. 27, 1977.

      Thomas M. Harris of Harris, Harris & Andrews, P. A., St. Petersburg, for appellants.
   McNULTY, JOSEPH P. (Ret.), Associate Judge.

This action is predicated upon an alleged breach of an implied warranty of fitness and merchantability.

The Roudebushes, as plaintiffs, purchased a condominium apartment from appellants, trustees and developers of the condominium. They complained that the air conditioning system made so much noise in their unit that the unit was rendered uninhabitable. They vacated the premises and brought this action seeking not rescission, but damages for breach of warranty. A judgment for $10,000 was entered in their favor after a jury trial and this appeal ensued. We reverse.

First of all, we recognize that the current state of Florida law extends an implied warranty of fitness and merchantability to the buyer of a new condominium. So where, as here, an air conditioning unit is an integral part of a condominium, it is subject to an implied warranty.

Even where an implied warranty exists, it is possible to assert defenses to it. A defense to implied warranty, at least in the products liability area, has been that the party asserting the implied warranty had a reasonable opportunity to discover the defect and did not do so. If we are to extend implied warranties to condominiums, it seems logical to allow the condominium developer/seller the same defenses that we allow the manufacturer/seller in the products liability field. In the instant case appellants may have been able to utilize this defense had it been properly pled and proven. But, since the defense was not properly pled and proven, there was a proper claim by plaintiffs of implied warranty.

Even so, the Roudebushes’ evidence fell far short of establishing a breach of implied warranty. The warranty involved is that the condominium unit was reasonably fit for the ordinary or general purpose intended, viz., as living quarters. A breach thereof, therefore, would be that it is not so fit; and the test of the breach is an objective one, i. e., whether the premises met ordinary, normal standards reasonably to be expected of living quarters of comparable kind and quality. There was no evidence on behalf of the Roudebushes which went to this test. They merely tended to show that, as to their sensitivity to noise, the premises were uninhabitable. No showing was made, nor was there a basis for comparison to establish, that their sensitivity to noise was not hypersensitivity, but was that of reasonable persons — a burden resting with them as plaintiffs. The subjective, “personal satisfaction” test is not enough.

Additionally, we observe, that even if there is the defect they complain of, it constitutes a continuing nuisance and is a permanent defect in the realty. The usual measure of damages in such a case is the diminution in value of the real estate occasioned by the defect. There is virtually no evidence of such diminution in value. To the contrary, unrefuted evidence on behalf of appellants tended to establish that the unit in question is worth more now than when the Roudebushes purchased it, even with the “defect” such as it is.

In view whereof, the judgment appealed from cannot stand. Accordingly, it should be, and it is hereby, reversed and the cause is remanded with directions to enter judgment in favor of appellants.

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

      . Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA), cert. denied, 264 So.2d 418 (Fla. 1972).

      . Lambert v. Sistrunk, 58 So.2d 434 (Fla.1952); Fletcher Co. v. Melroe Mfg. Co., 238 So.2d 142 (Fla. 1st DCA 1970).

      . See House v. Thornton, 76 Wash.2d 428, 457 P.2d 199, 203 (1969).

      . It appears, for example, that while admitting the noise was undetectable during normal conversation sounds, it was most disturbing to them in the still of the night.

      . Cf. Wisner v. Goodyear Tire & Rubber Co., 167 So.2d 254 (Fla. 2d DCA 1964).

      . Cf. Atlantic Coast Line R. Co. et al. v. Saffold, 130 Fla. 598, 178 So. 288 (1938). See also United States Steel Corporation v. Benefield, 352 So.2d 892 (Fla. 2d DCA 1977).


text:
    STATE of Florida, Appellant, v. Jose T. NOCON, Appellee.
    No. 76-1625.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.
    Rehearing Denied Dec. 27, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Robert E. Jagger, Public Defender, and Susan F. Schaeffer, Asst. Public Defender, St. Petersburg, for appellee.
   McNULTY, JOSEPH P. (Ret.), Associate Judge.

The state brings this appeal from an order granting appellee’s motion to dismiss the indictment herein on the grounds of double jeopardy and collateral estoppel. We reverse.

Appellee was charged in an indictment with the commission of a sexual battery on a female child of seven years. The date of the alleged offense as set forth in the indictment was October 8, 1975. He was also charged in a separate indictment with the commission of sexual battery on the same victim allegedly committed on September 27, 1975. Each indictment was separately filed and each bore a different case number.

Appellee was brought to trial on the first indictment which alleged the October 8 offense. He was found not guilty.

Subsequently, the state sought to bring appellee to trial in the instant case on the indictment charging him with the September 27 offense. Appellee filed a motion to dismiss and argued the collateral estoppel aspect of double jeopardy. The trial court granted the motion in the order appealed from and made the following findings:

“3. Prior to trial, Defense counsel attempted to exclude ‘Williams Rule Testimony’ of offenses allegedly occurring between the victim and the Defendant prior to October 8, 1975. The State alleged that the offense was a continuing one, and that the Jury could only understand the testimony of the victim, doctors, etc. by knowing about the prior offenses. The Motion in Limine was denied and the State was permitted, over defense counsel’s objection, to introduce testimony about alleged prior involuntary sexual batteries between the victim and the Defendant which necessarily included the offense allegedly committed on September 27, 1975, as contained in 75-5493, and presently set for trial.
4. Throughout the trial, including closing argument, the State alluded to the continuing course of conduct by the Defendant, all this over defense counsel’s objection, and the State contended that the only issue in the case was the victim’s credibility, i. e. whether or not they believed the victim that the Defendant had indeed committed involuntary sexual battery upon her.
5. The defense rested at the end of the State’s case and presented no testimony.
6. The Jury returned a verdict of Not Guilty in Circuit Criminal Case Number 75-5405 on March 17, 1976.
7. The witnesses, discovery, etc. is [sic] identical in both the Involuntary Sexual Battery previously tried (75-5405) and the Involuntary Sexual Battery presently set for trial (75-5493).
8. The only rational basis on which the Jury could have rendered its verdict of Not Guilty in the previous trial (Ct. Cr. 75-5405) was on the issue that they did not believe the victim beyond every reasonable doubt that Jose Nocon had had sexual intercourse with her at any time.”

Condensed, the trial court ruled that the state was collaterally estopped from relying on the victim’s credibility as to whether appellee had sexual intercourse with her “at any time,” since her credibility with respect thereto had already been determined by a valid and final judgment in favor of appel-lee. We think the court misconstrued the doctrine of collateral estoppel.

The leading case on the point is, of course, Ashe v. Swenson in which the United States Supreme Court held that collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”

In that case, several masked men armed with a shotgun and pistols robbed six poker players in the home of one of the victims. Subsequently, Ashe was charged in six separate counts with robbery, each count naming as a victim a different one of the six poker players. He was tried alone on one count in a trial in which the single rationally conceivable issue to be tried was his identity as one of the robbers. The jury found him not guilty.

Thereafter, he was again brought to trial, this time under one of the remaining counts for the robbery of another participant in the same poker game as in the first trial. He was convicted.

The Supreme Court reversed on the ground of collateral estoppel, holding that the first jury had determined by its verdict that the defendant was not one of the robbers. He could not constitutionally be prosecuted a second time for the same robbery.

Clearly, the “ultimate fact” spoken of in Ashe was not the credibility of the underlying evidence upon which the prosecution was relying to establish the identity of Ashe as one of the robbers; the critical “ultimate fact” decided was that he was not one of the robbers. It certainly doesn’t necessarily follow that the underlying evidence was not credible as to issues not then being tried, as for example, the identity of one other than Ashe as one of the robbers.

Similarly, here, the “ultimate fact” decided was that appellee did not commit the charged offense on October 8,1975. Merely because the victim’s testimony was not sufficiently credible to persuade a jury of ap-pellee’s guilt on that date does not of itself mean that the jury did not believe her with respect to other offenses not then being tried. The trial court was wrong, therefore, in concluding that the verdict as to the October 8 offense necessarily meant that the jury did not believe appellee had committed sexual battery on her at “any” time. It follows that no critical “ultimate fact” relevant to the September 27 charge, the one here, was finally decided or determined by a prior valid and final judgment. Accordingly, collateral estoppel, and thus double jeopardy, is inapplicable here.

In view whereof, the order appealed from dismissing the indictment should be, and it is hereby, reversed; and the cause is remanded for further proceedings under the indictment.

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

      . 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

      . Id., 397 U.S. at 443, 90 S.Ct. at 1194.


author: BOARDMAN, Chief Judge.

text:
    PAN AMERICAN BANK OF SARASOTA, Appellant, v. A. D. HANCOCK and Amanda Jane Hancock, husband and wife, and Lee-Bradley Corporation, a Florida Corporation, Appellees.
    No. 76-2018.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.
    Rehearing Denied Dec. 28, 1977.

      Leslie Telford and Ronald Alexander Cyril of Nelson, Hesse, Cyril & Weber, Sarasota, for appellant/cross-appellee Pan American Bank of Sarasota.
    Jeffrey G. Wood of Livingston, Patterson & Wood, Sarasota, for appellee/cross-appel-lant Lee-Bradley Corp.
    Johnson S. Savary and Andrew Shaw of Kirk, Pinkerton, McClelland, Savary & Carr, Sarasota, for appellees/cross-appellees A. D. Hancock and Amanda Jane Hancock.
   BOARDMAN, Chief Judge.

Appellees/plaintiffs, A. D. and Amanda Jane Hancock, were awarded damages of $21,577.50 plus interest, plus costs against appellant/defendant, Pan American Bank of Sarasota. The cross-claim filed against Pan American Bank of Sarasota by cross-appellant/defendant, Lee-Bradley Corporation, was denied by the trial court. The court ordered Lee-Bradley Corporation to pay the costs assessed against Pan American Bank.

We affirm the final judgment of the trial court except that part ordering Lee-Bradley Corporation to pay the court costs which we reverse and vacate. Costs are not generally awarded against a successful party. See G. M. Dykes Iron Works, Inc. v. Dehenffe, 131 So.2d 760 (Fla. 3d DCA 1961); 8 Fla. Jur. Costs § 7 (1956). Since Lee-Bradley Corporation was not found liable on any cause of action asserted against it, it was a successful party and is not subject to assessment of costs.

The final judgment also included a gratuitous statement that “[d]efendant, PAN AMERICAN BANK OF SARASOTA, reserves its right to file a Cross-Claim against the LEE-BRADLEY CORPORATION for all sums assessed and paid under this Judgment by the Bank to Plaintiffs.” Lee-Bradley argues that it was error to

SUA SPONTE, GRANT PAN AMERICAN THE RIGHT TO FILE THE COMPULSORY COUNTER-CLAIM [sic] AFTER THE CLOSE OF THE TRIAL.

We note that the court did not award judgment in favor of Pan American on the trial judge’s suggestion made in announcing the final judgment that it file for indemnification from Lee-Bradley. This point is raised prematurely and is not at issue here. We do not then decide whether Pan American may later be estopped from filing against Lee-Bradley Corporation.

AFFIRMED in part; REVERSED in part, and REMANDED for proceedings consistent with this opinion.

HOBSON, J. and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


author: GRIMES, Judge.

text:
    Shirley HOLLAND, Petitioner, v. FLORIDA REAL ESTATE COMMISSION, Respondent.
    No. 77-903.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.
    Edward R. Miller, Naples, for petitioner.
    Howard Hadley and Vaughan David Hulse, Winter Park, for respondent.
   GRIMES, Judge.

This is a petition for certiorari seeking review of an order of the Florida Real Estate Commission suspending the petitioner’s salesman’s license for a period of one year.

The Real Estate Commission filed a complaint alleging that petitioner had violated Section 475.25(l)(e), Florida Statutes (1975). This statute provides for a suspension of registration for up to two years upon a finding that the registrant has:

“(e) Been guilty of a crime against the laws of this state or any other state or of the United States, involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state, shall be admissible as prima facie evidence of such guilt; . . . ”

The Real Estate Commission’s case before the hearing examiner consisted of the introduction of copies of certain records of a criminal proceeding which had been filed against petitioner in the Dade County Circuit Court. According to the court records petitioner had been charged with fraudulently inducing persons to fill out employment applications and to make deposits for work uniforms with a view toward swindling them out of their deposits. The record of the plea hearing reflects that pursuant to a bargain, petitioner entered a plea of nolo contendere to the felony charge of gross fraud and agreed to assist the state in attempting to locate a man named Swanson, with the understanding that adjudication would be withheld and that he would receive one year’s probation. The court accepted the plea and found the petitioner guilty but withheld adjudication and placed him on probation for one year on a nonre-porting basis.

The petitioner then testified before the hearing examiner concerning the matters which led up to the court proceedings. He said that he had agreed to go to Miami from Naples for a five week period to help a Mr. Swanson establish a new business. Pursuant to Mr. Swanson’s directions, he rented an office and advertised in the newspaper for prospective employees. Petitioner conducted interviews with approximately thirty persons and accepted $20 deposits from about fifteen applicants. Mr. Swanson never returned from a trip to Atlanta, and upon a complaint to the police that the jobs were not forthcoming, petitioner was arrested. The deposits which were still in the petitioner’s possession were returned to the applicants. He said that he pled nolo contendere because his attorney advised him that by doing this there would be no record of any charges against him.

The petitioner also submitted evidence of a net worth of about $500,000 for the purpose of trying to demonstrate that he would not have been involved in a penny-ante fraud of the type with which he had been charged. He then concluded his case with four character witnesses. The hearing examiner found that the petitioner had violated the statute and recommended that his license be suspended for six months. When the matter came before the Real Estate Commission, the findings of the hearing examiner were sustained, but the penalty was increased to a .one year suspension.

Traditionally, the entry of a plea of nolo contendere has been given no eviden-tiary effect beyond the action in which it was entered. 2 S. Gard, Jones on Evidence § 13:44 (6th ed. 1972); Annot., 89 A.L.R.2d 540, 600 (1963). Despite the relaxation of the strict rules of evidence which is permitted by Section 120.58(1)(a), Florida Statutes (1975), we do not believe that evidence of a nolo contendere plea would be admissible as evidence of guilt in an administrative proceeding any more than it would be in court. Therefore, we need not consider whether evidence of petitioner’s plea, by itself, would be sufficient to support the finding of a violation of Section 475.25(1)(e).

The narrow legal question before us is whether the fact that the court made a finding that petitioner was guilty is equivalent to the guilt which is contemplated under Section 475.25(l)(e), in spite of the fact that an adjudication of guilt was specifically withheld.

The only Florida case remotely relevant is Rifkin v. Florida Real Estate Commission, 345 So.2d 349 (Fla.4th DCA 1977). In that case the Real Estate Commission sought to suspend the licenses of certain brokers for having violated the provisions of Section 475.25(1)(e), even though there had never been any court proceedings. The administrative hearing officer took evidence concerning the conduct of the brokers, and he ultimately found them “guilty” of a crime under the laws of Florida involving fraudulent or dishonest dealing. The court granted certiorari and directed that the information against the brokers be dismissed.

In the course of its opinion, the court held that the suspension of a broker’s license could not be ordered under Section 475.-25(l)(e) except upon “an actual adjudication of guilt by a court of competent jurisdiction.” Admittedly, in its use of the term “adjudication of guilt” the court was not faced with the precise issue now before us, but we think that this statement does provide the proper basis for a proceeding under Section 475.25(l)(e). In the eyes of the law a person is not deemed to have committed a crime until an adjudication of guilt has been entered against him.

Section 948.01, Florida Statutes (1975), permits the court to place a defendant on probation “with or without an adjudication of guilt.” The obvious purpose of this statute is to avoid giving certain persons a criminal record when the prospects are good for rehabilitation. In the same vein, Section 901.33, Florida Statutes (1975), permits a person with no previous criminal record to have his arrest record expunged providing he is released “without being adjudicated guilty.”

Since the petitioner was never adjudicated guilty by the Miami court, his license could not be suspended under Section 475.25(1)(e). As in Rifkin, we note that proof of the conduct with which the petitioner was charged would clearly come within the proscription of Section 475.-25(1)(a).

The petition for writ of certiorari is granted, and the order of suspension is reversed.

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


author: RAWLS, Judge.

text:
    Daniel Anderson NAZWORTH, Appellant, v. STATE of Florida, Appellee.
    No. EE-286.
    District Court of Appeal of Florida, First District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 6, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   RAWLS, Judge.

Nazworth was charged with killing a 3-year old child by beating her with his hands, feet and a belt. He now appeals his conviction of second degree murder.

Nazworth; his 16-year old half-brother, John Stinson O’Neal; the mother of the deceased child; and the deceased child lived together in an apartment. At approximately 6:30 on the night the child died, O’Neal drove the mother to her place of work where she was employed as a topless go-go dancer. O’Neal returned to the apartment. During the material time period, only O’Neal and Nazworth were with the child. At approximately 11:00 p. m., O’Neal and Nazworth carried the child to a hospital. She was examined by a physician who testified that the child was dead on arrival and that she suffered from “battered child syndrome”.

Of critical importance is the introduction of certain testimony, over the vigorous objection of defense counsel, given by John Stinson O’Neal at a bond hearing for Naz-worth. The trial court, in the absence of the jury, found that the state had exercised due diligence to locate O’Neal but had been unsuccessful in this endeavor. In summarizing to the trial court the testimony O’Neal gave at Nazworth’s bond hearing, the state candidly admitted that “without his testimony, of course, the Court would be forced to direct a verdict.” Counsel for the state further noted that O’Neal was declared a court witness at the bond hearing. Counsel then stated that the proffered testimony would reflect that on the night of the offense and the material period at time, only O’Neal and Nazworth were with the child; that O’Neal testified he did not strike the child, so the inference is that Nazworth did. A written statement given by O’Neal was then alluded to which the state advised the court that it did not seek to introduce. In referring to the bond hearing, counsel noted:

the court went through the statement line by line and said what is true and what is not true and what are you denying and the court did not infringe, but he clarified certain statements. .
“Therefore, the court did not unduly commit itself one way or another as to whether or not the man was tailing [sic] the truty [sic]. . . . ”

The state then proffered the entire transcript of the bond proceedings with a request that the portions of the actual statement put into evidence be deleted.

At this point, defense counsel vigorously objected to the admission of O’Neal’s testimony given at the bond hearing, primarily, upon the ground that O’Neal stated that he had been arrested for first degree murder and had been threatened with a perjury charge, and thus his testimony, to a great extent, was the result of threats. Excerpts of O’Neal’s testimony adduced at the bond hearing support the observations by defense counsel. Corroboration of the threats were proffered by examination of O’Neal’s mother, who testified that a detective told O’Neal if he didn’t testify as to what was “typed on those papers” that he would get 15 years for perjury. This proffer was erroneously denied by the trial court.

O’Neal’s testimony at the bond hearing basically was to the effect that the bruises and contusions suffered by the minor child were inflicted by her mother. The state’s direct examination and defense’s cross of O’Neal encompassed a total of eight pages. Re-direct examination by the state, utilizing the written statement given by O’Neal within a few hours of the death of the minor child for impeachment purposes, covered 42 pages of the transcript.

Testimony of a witness taken in the course of a judicial proceeding, when a proper predicate has been laid, may be admitted into a subsequent trial. Putnal v. State, 56 Fla. 86, 47 So. 864 (1908). As a whole, Florida cases which have permitted the use of transcripts of prior judicial proceedings have involved a defendant’s former trial or preliminary hearing. Putnal v. State, supra; Bexley v. State, 51 So. 278 (Fla.1910); Johnson v. State, 68 Fla. 528, 67 So. 100 (1914); Blackwell v. State, 79 Fla. 709, 86 So. 224 (1920); Richardson v. State, 247 So.2d 296 (Fla.1971); and James v. State, 254 So.2d 838 (Fla. 1st DCA 1971). As quoted in Richardson v. State, supra, Professor Wigmore, in explaining this rule, states:

“. . . The statement may have been made before the present trial, but if it has been already subjected to proper cross-examination, it has satisfied the rule and needs no exception in its favor. This is worth clear appreciation, because it involves the whole theory of the rule.” (emphasis supplied)

As may be gleaned from the facts surrounding the subject controverted testimony, a proper predicate was not laid*for the admission of O’Neal’s testimony nor was the testimony subject to proper cross-examination. A bond hearing is for the purpose of setting bond. The inquiry conducted bears little or no resemblance insofar as defendant is concerned with trial. O’Neal’s testimony at the bond hearing was tainted with the same infirmities as we found present in Davis v. State, 334 So.2d 823 (Fla. 1st DCA 1976). The extensive re-direct of O’Neal by the state after the limited cross-examination by Nazworth’s counsel did not afford defendant an opportunity for proper cross that would have been available had O’Neal testified at trial.

The judgment appealed is reversed with directions that a new trial be granted.

McCORD, C. J., and SMITH, J., concur.

      . The bill of particulars alleged that the crime was committed between 6:00 p. m. and 12:00 midnight on June 16, 1976.

      . O’Neal testified: “He told me I was going to get the electric chair for murder ... He told me I was going to jail for the belt and beating her.” In answer to a question: “How many different stories did you tell them?”, O’Neal’s response was: “. . . about five.”


text:
    KILGORE ACE HARDWARE, INC., a Florida Corporation, Don C. Kilgore and John M. Kilgore, Individually and as officers of Kilgore Ace Hardware, Inc., Appellants, v. H. D. NEWSOME and F. L. Lay, Appellees.
    No. 76-1857.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.
    Rehearing Denied Dec. 28, 1977.

      E. C. Watkins, Jr., Tampa, for appellants.
    Britt Whitaker, Tampa, for appellees.
   McNULTY, JOSEPH P. (Ret.), Associate Judge.

Plaintiffs-appellants challenge a final judgment dismissing their amended complaint in an action at law for damages. We reverse.

Appellants’ amended complaint consists of three counts. Each count depends on an alleged employer-employee relationship having existed between the appellant hardware corporation and appellee Newsome. It is further alleged that appellee Lay was a regular customer of the hardware corporation. The various counts of appellants’ amended complaint then attempt to state a cause of action for (1) civil conspiracy between appellees to damage unlawfully appellants’ business and business reputation; (2) for breach by appellee Newsome of his employment contract with appellant Kil-gore Ace Hardware, Inc.; and (3) for trade libel or slander.

Appellees moved to dismiss the amended complaint for failure to state a cause of action. The trial court granted the motion, with leave to appellants, to amend. Appellants declined to amend further, and the trial court then entered the final judgment of dismissal appealed from. We think the court was wrong. Read as a whole, the complaint stated a cause of action under two of the three legal theories — civil conspiracy and trade slander. The court was correct, however, on the contract count. No contract was pleaded, merely an employer-employee relationship generally.

First of all, we agree with appellants that an employee owes a duty to his employer to exercise diligence and good faith in matters relating to his employment. The amended complaint alleges that Newsome deliberately breached this duty by maliciously conspiring with Lay to steal appellants’ customers. Specifically, it is alleged that Newsome and Lay solicited such customers and importuned them to trade with a competing hardware business which Newsome (while still employed by Kilgore Ace Hardware, Inc.) was organizing with Lay. Additionally, it is alleged, that in furtherance of their conspiracy Newsome and Lay uttered false and malicious state'ments concerning the business reputation, competence, and ability of appellants Kil-gore Ace Hardware, Inc. and its officers, appellants, Don C. Kilgore and John M. Kilgore; that Newsome made many of the false and malicious statements while still employed by Kilgore Ace Hardware, Inc.; that these false utterances were published to customers of Kilgore Ace Hardware, Inc. for the sole purpose of damaging appellants in their business and advancing the business interests of Newsome and Lay; and that appellants in fact have been permanently damaged in their business reputation by the slanderous statements of appellees and have lost regular account customers due to said statements.

Clearly as to the civil conspiracy count the allegations are sufficient. Civil conspiracy is “an agreement, confederation, or combination of two or more persons to do an unlawful act or do or accomplish a lawful act or legal end by unlawful means, to do something wrongful either as a means or an end, or to effect an illegal purpose either by legal or illegal means or to effect a legal purpose by illegal means.” Here, the confederation of two or more persons is alleged. The alleged unlawful end and purpose of the conspiracy was the breach of the employee’s duty to his employer and the slandering of the appellants in their trade by the conspirators. Given damages as alleged, a cause of action at law exists for civil conspiracy. In this respect, the instant case differs materially from Renpak, Inc. v. Oppenheimer in which, under somewhat similar but distinguishable facts, injunctive relief in equity was denied.

With respect to the trade libel or slander count, it is now well recognized that a person, and a corporation as well, may recover damages for injuries suffered because of written or oral publication of false defamatory matter which tends to be prejudicial in the conduct of a trade or business or to deter third persons from dealing in business with him. The allegations in count three of the amended complaint herein surely fall within this rule.

In view whereof, the judgment appealed from is affirmed with respect to its dismissal of the count sounding in contract. With respect to the remaining two counts, however, it should be, and it is hereby, reversed and the cause is remanded for further proceedings not inconsistent herewith.

GRIMES, A. C. J., and OTT, J., concur.

      . See 21 Fla.Jur. Master and Servant § 8. Cf. Blackshear Mfg. Co. v. Umatilla Fruit Co., 48 F.2d 174 (5th Cir. 1931).

      . The pleaded statements, allegedly false and malicious, were: “the Kilgores did not care about [their] customers or the public;” [they] were “incompetent to serve [their] customers;” and that a customer would be “unable to obtain service from the [Kilgores] due to [their] inability ... to run a hardware business.”

      . See Renpak, Inc. v. Oppenheimer, 104 So.2d 642 (Fla.2d DCA 1958).

      . Id.

      . See Diplomat Electric, Inc. v. Westinghouse Electric Supply Company, 378 F.2d 377 (5th Cir. 1967); cf. Collier County Publishing Co., Inc. v. Chapman, 318 So.2d 492 (Fla.2d DCA 1975). Also cf. Upton Cooler Corp. v. Alldritt, 73 So.2d 848 (Fla. 1954).


author: PER CURIAM.

text:
    ZURICH INSURANCE COMPANY, Memorial Park, Inc., and Edward Beckhans, Appellants, v. Clara BARTLETT, as Administratrix of the Estate of Julian Clarence Bartlett, Deceased, Appellee.
    No. 77-110.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.
    Rehearing Denied Dec. 28, 1977.
    Charles S. Carrere of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Peters-burg, for appellants.
    John L. McFadyen of Lloyd & Henninger, St. Petersburg, for appellee.
   PER CURIAM.

Partial summary judgment on the issue of liability was rendered against appellants, defendants below, under the doctrine of estoppel by judgment. This interlocutory appeal ensued. We reverse.

Appellee’s decedent, Julian Clarence Bartlett, and one Nadeau were riding on the bed of a truck owned by appellant-Memorial Park, Inc. and driven by appellant Beckhans. An accident occurred in which Bartlett was killed and Nadeau seriously injured. Subsequently, Nadeau brought a negligence action against Memorial Park and Beckhans and joined appellant Zurich Insurance Company, Memorial’s carrier. Judgment was rendered in favor of Nadeau and he was awarded substantial damages.

This wrongful death action arising out of the same accident was thereafter filed on behalf of the decedent Bartlett. Plaintiff/appellee moved for summary judgment on the issue of liability contending that the negligence of appellant Beckhans had been conclusively determined in the prior action. The trial court granted the motion holding:

“WHEREFORE, it is ordered that the partial summary judgment requested by plaintiff is granted to the effect that Edward Beckhans negligently operated the truck in which plaintiff’s decedent was riding contributing to his death.”

The trial court misperceived the doctrine of estoppel by judgment.

Estoppel by judgment, simply stated, is a principle of law which recognizes within the concept of res judicata that once an identical, relevant issue as between the same parties has been decided by a prior valid judgment that issue can never again be retried between them. Here, the previously decided issue sought to be relied upon was the negligence of the driver Beckhans in the subject accident. That issue, however, was only decided as between appellants and Nadeau — not as between appellants and the decedent Bartlett’s adminis-tratrix. The identity of parties, therefore, essential to application of the doctrine of estoppel by judgment, was not present here. See Seaboard Coast Line Railroad Company v. Cox, 338 So.2d 190 (Fla.1976).

In view whereof the order appealed from should be and it is hereby reversed and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN, C. J., GRIMES, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


author: SCHEB, Judge.

text:
    James H. WILLIS, Jr., d/b/a Pacer Men’s and Women’s Wear, Appellant, v. L. W. FOSTER SPORTSWEAR CO., INC., a Pennsylvania Corporation, Appellee.
    No. 77-130.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.
    Rehearing Denied Dec. 28, 1977.
    William F. Casler, St. Petersburg Beach, for appellant.
    David A. Luczak, Largo, for appellee.
   SCHEB, Judge.

The trial court awarded plaintiff/appel-lee a summary final judgment against defendant/appellant. On appeal we consider whether the court erred in denying defendant’s motion for rehearing where the motion was accompanied by a counteraffidavit that created an issue of material fact. We hold that the trial judge did not abuse his discretion in failing to consider defendant’s counteraffidavit on rehearing. We affirm.

Plaintiff sued defendant for $2,511.40, plus interest and costs, on an open account. Plaintiff’s amended complaint incorporated certain exhibits purporting to establish the debt. Defendant answered with a general denial. On September 1, 1976, plaintiff moved for summary judgment. Attached to the motion was an affidavit of one of its corporate officers in proof of its claim. The affidavit in turn incorporated copies of the exhibits attached to plaintiff’s complaint.

Upon filing the motion for summary judgment, plaintiff’s counsel served defense counsel with a copy of the motion and a notice scheduling a hearing on October 15. No discovery was attempted by either party. Defendant did not file any counteraffi-davits prior to the hearing, nor does the record disclose any request by defense counsel for a continuance or leaye to file any counteraffidavits. Several days after the hearing the court entered a summary final judgment in favor of plaintiff for $2,875.93.

Since the pleadings and plaintiff’s affidavit demonstrated there was no genuine issue as to any material fact, the trial court did not err in entering summary judgment in favor of plaintiff. However, after summary judgment was entered, defendant filed a timely motion for rehearing, accompanied by his own affidavit, making specific denials of plaintiff’s claim. The trial court denied the motion for rehearing.

The counteraffidavit filed with defendant’s motion for rehearing specifically controverted the facts of plaintiff’s affidavit upon which the summary judgment was based. Therefore, the counteraffidavit was sufficient to create a material issue of fact. This being so, it is obvious to us that the trial judge declined to consider the defendant’s counteraffidavit. So, the issue we now address is whether the trial court abused its discretion in refusing to consider defendant’s counteraffidavit filed with his motion for rehearing.

Florida R.Civ.P. 1.510 governs summary judgments. Subsection (e) states the court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or affidavits. Subsection (f) provides that the court may also order a continuance to permit affidavits to be obtained, depositions to be taken, discovery to be had, or to make such other orders as are just. Thus the rule provides adequate safeguards to assure a nonmoving party a fair opportunity to come forward and show that a genuine issue of fact exists before the court rules on a motion for summary judgment. However, once a summary judgment has been entered, the granting or denial of rehearing is a matter within the sound discretion of the trial court; but, as pointed out in Blue v. Blue, 66 So.2d 228 (Fla.1953), this discretion cannot be exercised arbitrarily.

At the outset, we recognize the Third District Court of Appeal has held that a trial court does not have the discretion to ignore an affidavit filed with a motion for rehearing merely on the grounds that the affidavit was not filed prior to the hearing on the motion for summary judgment. See Berrol v. Concord Fla., Inc., 305 So.2d 310 (Fla.3d DCA 1974); National Properties, Inc. v. Ballenger Corp., 277 So.2d 29 (Fla.3d DCA 1973). We believe these holdings go too far, and are based on an erroneous interpretation of the obiter dictum in Holl v. Talcott, 191 So.2d 40 (Fla.1966). In Holl the supreme court observed that the liberal presumptions which favor the nonmoving party in a summary judgment procedure should continue and be similarly applied on a subsequent motion for rehearing. Holl was a medical malpractice case where the defendants moved for summary judgment and submitted several affidavits. The plaintiffs submitted a counteraffidavit which the trial court struck for legal insufficiency. The court then granted summary judgment to the defendants on the basis of their affidavits. On rehearing the plaintiffs attempted to submit another counter-affidavit of the same affiant to cure the defects in their stricken affidavit. The court declined to consider the new counter-affidavit and denied the motion for rehearing. The Third District Court of Appeal affirmed the actions of the trial court, but its decision was quashed by the supreme court.

We think Holl is distinguishable from the instant case. In Holl the nonmoving parties submitted a counteraffidavit in opposition to the original motion for summary judgment that was found technically deficient; whereas here, defendant did not submit a counteraffidavit until he filed a motion for rehearing. It is one thing for a court to receive an amended or supplementary affidavit on a motion for rehearing; it is quite another to allow a nonmovant to initially create an issue of fact at this late stage. To permit the latter would allow a nonmoving party to sit back, review the entire proceedings, and not attempt to negate the nonexistence of a material issue of fact until rehearing. Such a procedure certainly is not sanctioned by the rules and is not conducive to the orderly administration of justice.

We can envision circumstances where the exigencies of the situation may persuade a trial judge to allow affidavits to be first presented on a motion for rehearing. An example of this might be where, through no fault or lack of diligence by the nonmoving party, proof may not become available until after the motion for summary judgment is heard. However, such a case would be the exception and not the rule, and the trial judge should require a convincing showing of exigent circumstances.

Federal R.Civ.P. 56 is the prototype of Fla.R.Civ.P. 1.510, so the federal decisions under Rule 56 are instructive. In Engelhard Industries, Inc. v. Research Instrumental Corp., 324 F.2d 347 (9th Cir. 1963), the plaintiff obtained a summary judgment under Rule 56. Thereafter, on motion for rehearing, the court rejected affidavits tendered by the nonmovant. On appeal the Ninth Circuit affirmed, stating that the party seeking to introduce affidavits for the first time on rehearing is obliged to show not only that the evidence was newly discovered or unknown until after the hearing, but also that with reasonable diligence it could not have been discovered and produced at the hearing.

Here, there was no attempt by defendant to file any counteraffidavit to controvert the affidavit filed by plaintiff before summary judgment was entered. Nor was there any showing on the motion for rehearing of exigent circumstances which would have persuaded the court to allow the filing of a counteraffidavit. We hold, therefore, that under these circumstances it was not an abuse of discretion for the trial court to decline to consider defendant/appellant’s counteraffidavit on motion for rehearing.

No other point raised by appellant merits discussion.

Affirmed.

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


author: HOBSON, Judge.

text:
    TOWN OF LONGBOAT KEY, Appellant, v. Paul H. KIRSTEIN and Philip P. Kirstein, Appellees.
    No. 77-135.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.
    Rehearing Denied Jan. 5, 1978.

      Robert J. Elkins and Isaac Welch White-sell, Jr. of Wood, Whitesell & Karp, Sarasota, for appellant.
    Johnson S. Savary of Kirk, Pinkerton, McClelland, Savary & Carr, Sarasota, for appellees.
   HOBSON, Judge.

Appellant appeals a final judgment entered wherein the trial court ordered

“. . . [A]nd the TOWN OF LONGBOAT KEY is directed to change the zoning of the above described real estate from R-2 to C-l commercial use and the TOWN OF LONGBOAT KEY is enjoined from prohibiting the Plaintiffs from using their property under an appropriate C-l use as established within the zoning ordinance.”

Appellant contends, and we agree, that the final judgment violates the separation of powers in that it orders appellant to change the zoning from R-2 to C-1 and the injunction portion of the order is tantamount to ordering the appellant to change the zoning from R-2 to C-1. City of Tampa v. Consolidated Box Company, 110 So.2d 446 (Fla.2d DCA 1959); City of Miami Beach v. Weiss, 217 So.2d 836 (Fla.1969).

For the foregoing reason the final judgment appealed is reversed and the cause remanded for entry of a final judgment in favor of the appellant.

BOARDMAN, C. J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


author: ERVIN, Judge.

text:
    Henry L. KIMBROUGH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. FF-88.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1977.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Kimbrough raises two points on appeal: 1. That the court erred in vacating his plea of guilty, previously accepted, to Count II of the information and in forcing him to go to trial on Counts I and II. 2. That the court erred in denying his motion for continuance. As to the first point, we conclude the court appropriately vacated the plea of guilty since it lacked a factual foundation. Williams v. State, 316 So.2d 267 (Fla.1975). The second point is, however, far more troubling.

On January 18, 1977, Kimbrough, with his assistant public defender, entered a plea of guilty to Count II of the information charging battery. The state tentatively agreed to nolle prosequi Count I, charging false imprisonment, in the event the court accepted the plea of guilty to Count II.

After very thoroughly advising appellant of his various rights, the court accepted the plea, referred the case for presentence investigation, and instructed defendant to return to court on February 14, 1977, for sentencing. During the intervening period, the assistant public defender who had represented appellant at the arraignment proceedings resigned and a new assistant later appeared in court with him at sentencing.

At the sentencing proceeding, the court determined it would not accept appellant’s plea to Count II because of inconsistent responses he made relating to the offense; it then vacated the plea of guilty and asked his attorney whether he was prepared to go to trial that date. Appellant’s second assistant public defender, E. E. Durrence, answered he was prepared. The court set Kimbrough’s ease for trial immediately following another case scheduled for trial that morning.

Later when the case was called for trial, Mr. Durrence was not present but a third assistant public defender, Weslie Wallace, appeared with appellant stating that he was asked to handle the case since he had been in the courthouse handling non-related matters, but that he had no knowledge whatsoever about Mr. Kimbrough’s case, had just received the file, had not even seen Mr. Kimbrough, felt he could not competently represent him, and asked for £ continuance. The request was denied; the court observed the trial had been originally set for December 20, 1976, later changed to January 18, 1977, at which time defendant changed his prior plea of not guilty to one of nolo con-tendere.

After the jury was selected and following the opening statement by the Assistant State Attorney, the court, at 12:15 p.m., declared a recess for lunch until 1:30 p.m., at which time trial was resumed. Kimb-rough was the only witness called by the defense, and at the conclusion of the case, the jury deliberated 20 minutes and found appellant guilty as charged as to both counts of the information.

Any appeal seeking a reversal of a conviction on the ground of denial of a continuance necessarily attacks the discretion exercised by the trial court since only a palpable abuse of discretion justifies reversal. Berriel v. State, 233 So.2d 163 (Fla. 4th DC A 1970). Nevertheless the reasonableness of the time of appointment must be taken into consideration. We stated in Hawkins v. State, 184 So.2d 486 (Fla. 1st DCA 1966), that even though counsel had been appointed to represent defendants more than one month prior to trial, because the defendants who were incarcerated had been unable to speak to trial counsel until the day before the trial, it was an abuse of discretion to force defendants to go to trial the following day after counsel had represented to the court that he was unprepared for trial.

If either the first or second assistant public defenders who were assigned Kim-brough’s case had defended him at trial, there would be no problem since both members of the office had been appointed long before trial. Should, however, we indulge a presumption that adequate time exists to prepare for trial by reason of timely appointment of the institution, despite the fact the institution’s agent who actually handled the trial was not personally prepared just prior to trial? It is a novel question and one which has not been addressed previously by Florida courts.

A case similar in its facts is Moore v. United States, 432 F.2d 730 (3rd Cir. 1970), in which defendant filed a motion to vacate sentence following a conviction for bank robbery. He alleged he was inadequately represented by a member of the staff of the “Voluntary Defender’s Office”. A staff attorney was appointed to represent him at the arraignment on February 12,1965. The case was scheduled for trial on March 29, 1965, and another member of the defender’s office appeared and requested a short postponement of the trial so that he might personally confer with him. The continuance was allowed until the following day when the trial was begun and concluded.

On appeal from the denial of his motion to vacate, the Third Circuit Court of Appeals stated the recognition of the right of a defender organization to supply legal services to indigents makes it apparent that in such institutional representation the timeliness of the appointment must be measured by the time of the court’s appointment of the institution and not by when individual staff members are assigned to perform their specialized function. The court, however, stated:

“Whether an indigent is represented by an individual or by an institution, he is entitled to legal services of the same level of competency as that generally afforded at the bar to fee-paying clients. In both cases, therefore, the standard of adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place.” 432 F.2d at 736.

After reviewing the record of trial proceedings, the court concluded that Moore was entitled to an evidentiary hearing on the question of whether he had been afforded adequate counsel. It stated it did not doubt that counsel acted in an effective manner as far as the trial judge was able to observe his conduct, continuing:

“But representation involves more than the courtroom conduct of the advocate. The exercise of the utmost skill during the trial is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance. Such omissions, of course, will rarely be visible on the surface of the trial, and to that extent the impression of a trial and to that extent the impression of a trial judge regarding the skill and ability of counsel will be incomplete.” Id. at 739.

Since Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), it has been accepted that a state defendant has a right not only to the timely appointment of counsel but also to the assistance of counsel whose quality of performance does not fall below a minimum level of effectiveness. See also McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960) it was stated:

“We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” 280 F.2d at 599. (Emphasis in original.)

This standard was applied by the Fifth Circuit Court of Appeals when granting a writ of habeas corpus after a state conviction where defense counsel never investigated the circumstances of the crime charged. King v. Beto, 429 F.2d 221 (5th Cir. 1970).

In McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir. 1974), defendant’s attorney did nothing more than interview the defendant; he never interviewed prosecution witnesses. The court quoted from a prior opinion:

“ ‘The mere appointment of counsel, no matter how able, for a defendant charged with the commission of a crime without opportunity to consult, advise or to make such preparation for arraignment and trial as the facts of the case fairly demand would be a travesty and would not satisfy the requirements of the Fifth and Sixth Amendments.’ Maye v. Pescor, 162 F.2d 641, 643 (8th Cir. 1947). (Emphasis added.)”

The American Bar Association Standards Relating to the Prosecution Function and the Defense Function, Section 4.1, places the duty upon defense counsel to conduct a prompt investigation of the circumstance of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. It requires that the investigation include efforts to secure information in the possession of the prosecution and law enforcement authorities. The above section was designed no doubt to give teeth to the dictum that the “denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense could convert the appointment of counsel into a sham . . . .” Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940).

The Supreme Court has found a “denial of the accused’s constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel.” White v. Ragan, 324 U.S. 760, 764, 65 S.Ct. 978, 980, 89 L.Ed. 1348 (1945). Timely appointment and opportunity for adequate preparation are absolute prerequisites for counsel to fulfill his constitutionally assigned role of seeing to it that available defenses are raised and the prosecution put to its proof. Cf. United States v. Ash, 413 U.S. 300, 312-313, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

The record of the trial proceedings reflects a valiant effort by defense counsel to represent his client. He extensively cross-examined the state’s prosecution witnesses pertaining to the events involving the false imprisonment and battery charges. Yet he called no witnesses other than the defendant. And the record in our opinion does not refute counsel’s allegations that he was unprepared for trial, thus depriving defendant of adequate representation. The error no doubt could have been corrected had the court insisted that the assistant public defender who represented he was prepared for trial go forward with his defense. Nevertheless that attorney did not assist him at trial, and a defendant should not be bound to his prejudice by the expressions of an attorney he is prepared, who then abandons his client and apathetically entrusts him to the care of another attorney who knows nothing of the case. A defendant’s judicial fate may not depend upon such capricious circumstances.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


author: HENDRY, Chief Judge.

text:
    John GAINES, Appellant, v. TREASURE SALVORS, INC., Appellee.
    No. 76-1953.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Robert A. Huth, Jr. and C. Lavon Ward, Fort Lauderdale, for appellant.
    Horan & Finley and David Paul Horan, Key West, for appellee.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ.
   HENDRY, Chief Judge.

This is an appeal by appellant/plaintiff from a summary judgment rendered in favor of appellee/defendant, on appellant’s complaint for breach of contract.

On February 20, 1968, appellant and ap-pellee entered a contract for the financing of an expedition to locate and salvage the treasure of a sunken Spanish ship, the Nuestra Señora de Atocha. By the terms of the contract, appellee agreed to conduct the expedition and pay appellant one percent of the treasure recovered in exchange for One Thousand Dollars. The contract was to expire one year from the commencement of the expedition. At the end of that period of time, if no profit had been realized, certain collateral given to appellant by appellee, in the form of ancient coins, was to automatically vest in appellant.

The expedition commenced at sea on February 28, 1968. After the duration of one year, appellant was notified by letter, dated March 14, 1969, of the lack of the expedition’s success in locating the sunken treasure ship. The letter informed appellant that the contract had expired and, as no profits had been realized, appellant was entitled to keep the collateral.

On July 22, 1970, appellee sent a second letter to appellant, again stating that the contract had expired and formally transferring legal title to the coins to appellant. Appellant did not respond to either letter but instead kept the collateral. Years later, on August 28, 1975, upon learning of appel-lee’s eventual success in discovering the sunken ship, appellant filed a complaint for breach of contract.

The trial judge was of the opinion that the statute of limitations had run on an action for breach of contract and found no genuine issues of material fact prohibiting him from entering summary judgment in favor of appellee. From the entrance of said judgment, this appeal follows.

After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that there were no genuine issues of material fact and that appellee was entitled to a summary judgment as a matter of law. Firstly, it is both clear and unequivocal that, by its terms, the contract was to last for only one year. Secondly, even assuming a breach of contract could have been maintained, any cause of action for same would have accrued on February 28, 1969, or, at the latest, July 22, 1970, when appellant was put on notice that ap-pellee deemed the contract to be at an end. Instead of objecting to the letters of the above dates, appellant took permanent possession of the collateral and silently acquiesced for over five years. When, at last, appellant decided to file his complaint, the cause of action had been effectively barred by the statute of limitations. Section 95.-ll(2)(b), Florida Statutes (1975).

Accordingly, the judgment appealed from is hereby affirmed.

Affirmed.


text:
    CITY OF MIAMI BEACH, a Florida Municipal Corporation, and Elaine Matthews, City Clerk of Miami Beach, Florida, Appellants, v. MR. SAMUEL’S INC., a Florida Corporation, Appellee.
    No. 75-816.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1977.
    Joseph A. Wanick, City Atty., for appellants.
    Moran & Gold, Miami, for appellee.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on April 6, 1976 (334 So.2d 47) affirming the final judgment issuing the peremptory writ of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed October 27, 1977, 351 So.2d 719, and mandate now lodged in this court, quashed this court’s judgment with directions to remand to the trial court for discharge of the Writ of Mandamus.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on July 6, 1976 is withdrawn, the judgment of this court filed April 6, 1976 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment of the circuit court is reversed and the Writ of Mandamus is discharged. Costs allowed shall be taxed in the circuit court (Rule 3.16b, Florida Appellate Rules).


text:
    Maude JOHNSON, Appellant, v. PALMER FIRST NATIONAL BANK & TRUST COMPANY OF SARASOTA, as executor of the Will of Nellie L. Meneely, Deceased, Appellee.
    No. 77-294.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1977.
    George Browning, III, and James R. Dir-mann of Dirmann & Scott, Sarasota, for appellant.
    Jack R. Bissell and Henry P. Trawick, Jr., of Trawick, Griffis & Ferrell, Sarasota, for appellee.
   GRIMES, Judge.

This is an appeal from a judgment entered upon a directed verdict for the plaintiff.

The plaintiff/appellee (bank) as executor of the Estate of Nellie Meneely filed a complaint against the defendant/appellant (Mrs. Johnson) seeking to set aside certain checks which Mrs. Meneely had written to Mrs. Johnson before her death. Mrs. Johnson counterclaimed for the proceeds of a further $3,000 check upon which the bank had stopped payment. Upon the request of Mrs. Johnson, the matter came on for jury trial. At the conclusion of testimony, both sides moved for directed verdict. The court denied Mrs. Johnson’s motion and reserved ruling on the bank’s motion. The jury returned a verdict for Mrs. Johnson on the bank’s claim and awarded her the $3,000 on her counterclaim. Thereafter, the court entered an order granting the bank’s motion for directed verdict, the effect of which was to render judgment for the plaintiff in the approximate sum of $160,000, subject to the offset of an amount that the defendant was to be permitted to prove at a later hearing which would represent the value of unpaid services provided to the decedent prior to her death.

The evidence reflected that Mrs. Meneely was 96 years of age when she died on October 12,1973. She and her husband had resided in Sarasota for many years. After her husband passed away in 1966, she lived by herself. While she seldom went out, she did receive visitors from time to time. She talked with others on the telephone daily. Her physical health declined during her later years, and she could only walk with the aid of a walker. There was no evidence of mental incompetence, though she became more forgetful in later years. One witness said that Mrs. Meneely had a dominant personality and was always very strong willed.

Mrs. Johnson went to work for the Me-neelys in 1961. Both Mr. and Mrs. Meneely were fond of Mrs. Johnson, and Mr. Meneely had given her gifts before he died. In the latter years, Mrs. Johnson worked for Mrs. Meneely from five to seven days each week. A neighbor described their relationship as follows:

“Q What were Maude’s duties, if you know? What did she do around the house or what did she do for Mrs. Meneely?
A She did everything. And what I mean is physically she took care of her and she took care of the house as far as I could see. She did her shopping. She was her companion. She was her nurse.
Q Was it a difficult job?
A Nobody, but nobody, I don’t think, could have put up with it other than Maude. That’s my personal opinion.
Q Did you ever see any indication of dominance of Mrs. Meneely by Maude Johnson when you were over visiting?
A Would you explain that? You mean Maude dominating Mrs. Meneely?
Q That’s correct.
A No, sir.”

Mrs. Johnson testified that she used the proceeds of the checks to buy a new house and to meet other personal expenses.

The bank found no bank statements or cancelled checks among Mrs. Meneely’s possessions after her death. By checking its microfilms, the bank learned that from 1970 to 1973 there were checks drawn on Mrs. Meneely’s bank account payable to Mrs. Johnson’s order in the sum of $163,650.68. Some of the checks were marked “personal household,” “loan,” and “Christmas.” The checks appeared to have been written by someone other than Mrs. Meneely but there was no suggestion of forgery with respect to Mrs. Meneely’s signature. The practice of having someone else write her checks was apparently not new since a neighbor who used to fill out her tax returns had done this until 1971. At the time of her death, Mrs. Meneely still had $120,000 in savings. Her closest living relative at the time of her death was a niece in Texas.

There was no direct evidence of undue influence. The bank contended that Mrs. Meneely and Mrs. Johnson occupied a confidential relationship and that Mrs. Johnson had failed to meet the legal burden thereby placed upon her. In Majorana v. Constantine, 318 So.2d 185 (Fla.2d DCA 1975), this court held that where the donee of a gift is shown to have been in a confidential relationship with the donor, the donee then has the burden of coming forward with a reasonable explanation for his active role in the donor’s affair but is not obligated to disprove undue influence. Following the principle laid down by our supreme court with respect to wills in In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), we held that as in the case of other presumptions, the burden of proof remained with the party upon whom it rested in the first place.

Thus, the underlying issues in this case were whether a confidential relationship existed, and if so, whether Mrs. Johnson met the burden of giving a reasonable explanation for her active role in Mrs. Me-neely’s affairs. The court properly instructed the jury on both of these issues, and the jury returned a verdict in favor of Mrs. Johnson. Since the verdict was a general verdict, we cannot tell how the jury resolved either issue, but it would have been necessary for the bank to prevail on both issues in order to obtain a favorable verdict. While there was clearly enough evidence to support the conclusion that a confidential relationship did exist, it cannot be said upon this record as a matter of law that the jury would not have been entitled to reach a contrary conclusion. Moreover, there was competent substantial evidence explaining Mrs. Johnson’s active role in Mrs. Meneely’s affairs. Mrs. Johnson was working for her on a full-time basis and was necessarily caring for her physical needs as well as doing the ordinary housekeeping chores. While (presumably because of the Dead Man’s Statute) neither party specifically explored the transactions reflected by the checks, under the rationale of Carpenter and Majorana, the burden was not upon Mrs. Johnson to do so in order for her to prevail.

Upon proper instructions, the jury returned a verdict which is supported by competent substantial evidence. Under these circumstances, the court is not permitted to substitute its judgment for that of the jury. The order directing the verdict for the plaintiff is hereby reversed with directions to enter a judgment in accordance with the verdict.

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


author: OTT, Acting Chief Judge.

text:
    W. A. GASPARINO and City of Tampa, Petitioners, v. Corine MURPHY, as Administratrix of the Estate of Larry Marcell Murphy, a minor Deceased, Respondent.
    No. 77-397.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1977.

      Henry E. Williams, Jr., City Atty., Stann W. Given and Matías Blanco, Jr., Asst. City Attys., Tampa, for petitioners.
    Delano S. Stewart, Tampa, for respondent.
   OTT, Acting Chief Judge.

We grant the petition for a writ of certio-rari.

Petitioner is a City of Tampa policeman. On August 7, 1975 petitioner was on duty during the early morning hours. At about 1:40 a.m. while in uniform and on routine patrol he received notification of a burglary. In covering the “buffer zone” — the area of the neighborhood surrounding the location of the burglary — petitioner encountered Larry Murphy. According to the petitioner, Murphy pulled an eleven-inch butcher knife and attempted to stab him in the neck. Petitioner fired four shots killing Murphy.

Respondent instituted a wrongful death action as administratrix of Murphy’s estate. The amended complaint alleged negligence and excessive force. Paragraph 6 of the amended complaint stated:

That the [defendant’s] conduct was negligent in that he lacked the requisite training in apprehending a suspect; that he used force in excess of the amount required in arresting the 16 year old suspect; further that each shot fired by the officer was intended to inflict death and not merely to deter the suspect . . .

Respondent moved to require petitioner to submit to a compulsory psychiatric examination. The motion stated as follows:

. there is a controversy between plaintiff and defendants as to the mental state of the defendant ... on August 7, 1976 [sic] and that a psychiatric examination of said defendant is necessary in order that the plaintiff . may be in a position to determine the state of mine [sic] or any psychiatric problems that the defendant may have had on August 7, 1976. [sic]

The court ordered the compulsory psychiatric examination to be held. It is from this order that the writ of certiorari is sought.

We hold that the order does not conform to the essential requirements of law and may cause material injury to petitioner for which remedy by appeal would be inadequate.

The requirements for the extraordinary writ of certiorari to issue in this situation are set forth in West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975). In that case the trial court had entered an interlocutory order overruling petitioner’s [hospital] objections to the production of certain incident reports sought under Fla.R.Civ.P. 1.350(a) (Production of Documents and Things, etc.). The court held:

. interlocutory orders rendered in connection with discovery proceedings may be reviewed by common law certio-rari where the petitioner can demonstrate . that the order does not conform to the essential requirements of the law and may cause material injury through subsequent proceedings for which remedy by appeal will be inadequate, 308 So.2d at 636.

See Meiklejohn v. American Distributors, Inc., 210 So.2d 259, 263 (Fla. 1st DCA 1968).

It goes without saying that petitioner could suffer irreparable injury by virtue of a compulsory psychiatric examination. Discovery of this type is of the most personal and private nature. The potentially negative effects of requiring petitioner to bare his inner self against his wishes are self-evident.

In Fred Howland, Inc. v. Morris, 143 Fla. 189, 196 So. 472 (1940) the court held that “[a]t common law a compulsory examination . . . was unheard of and would have been denounced as a most iniquitous practice.” 196 So. at 473.

In Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891) the court held:

No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. 141 U.S. at 251, 11 S.Ct. at 1001.

The “essential requirements of law” before a party can be subjected to a compulsory mental or physical exam by the court are now set forth in Fla.R.Civ.P. 1.360(a) which provides in relevant part:

[When] the mental or physical condition . of a party ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician . . . . The order may be made only on motion for good cause shown . . . . [Emphasis supplied]

The two essential prerequisites that must be clearly manifested are: (1) that petitioner’s mental condition is “in controversy”— i.e. directly involved in some material element of the cause of action or a defense; and (2) that “good cause” be shown—i.e. that the mental state of petitioner, even though “in controversy,” cannot adequately be evidenced without the assistance of expert medical testimony.

With reference to (1), petitioner’s mental state is not made the issue (and “in controversy”) in this case. Rather, it is his conduct which is at issue; specifically whether such conduct was negligent, unreasonable or involved the use of excessive force. While petitioner’s mental state may shed some light on why he acted as he did, it is not involved in either establishing the standard of care or in determining whether or not it has been violated. Neither has it been made an issue by any defense to the complaint.

With reference to (2), expert medical testimony is still inappropriate in the instant case. Even if we assume that aberrant behavior is involved there is no showing that this cannot be adequately evidenced without expert testimony. The behavior, acts or conduct of petitioner, in so far as pertinent to this case, can be both evidenced to and judged by the court or jury without the assistance of expert medical testimony. In this case the testimony of an examining psychiatrist is not shown to be essential or even useful.

The landmark case which interpreted the “in controversy” and “good cause” requirements [under Federal Rule of Civil Procedure 35(a) which is nearly identical to Fla. R.Civ.P. 1.360(a)] was Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). In Schlagenhauf the court held that the “in controversy” and “good cause” requirements of Rule 35:

. are not met by mere conclusory allegations of the pleadings—nor by mere relevance to the case—but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination. 379 U.S. at 118, 85 S.Ct. at 242-43.

Allegations of negligent conduct coupled with the claim that there is a controversy as to petitioner’s mental state does not place a party’s mental state “in controversy” nor make a showing of “good cause.”

We could not agree more with the supreme court’s statement that to properly to balance [the] competing interests is a delicate and difficult task.” Hickman v. Taylor, 329 U.S. 495, 497, 67 S.Ct. 385, 387, 91 L.Ed. 451 (1947). Under the facts and circumstances we feel that no basis has been demonstrated for the invasion of petitioner’s right of privacy. Thus, we hold that the discovery sought might cause irreparable harm to the petitioner.

Accordingly, the writ of certiorari is granted, the order of the trial court reversed and set aside with directions that the motion of respondent be denied.

RYDER, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


text:
    Dwight Eugene HALL, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-603 and 77-604.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1977.
    Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, Bartow, and Howard L. Dimmig, II, Legal Intern, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The orders revoking appellant’s probation and sentencing him to two consecutive ten year terms are affirmed, but these cases are remanded for resentencing of appellant. The present sentences do not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977). Moreover, the phrase “at hard labor” in the sentences is improper. Brooks v. State, supra. The appellant does not have to be present at re-sentencing.

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.