author: HUBBART, Judge.

text:
    G.B.B. INVESTMENTS, INC., a Florida Corporation, Appellant, v. Ernest HINTERKOPF and Hilda B. Hinterkopf, as Trustees under the Hinterkopf Trust dated March 14, 1957, recorded in Official Records Book 128, at page 120, Public Records of Dade County, Florida, Appellees.
    No. 76-1343.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Rehearing Denied April 13, 1977.
    Guy B. Bailey, Jr., Batchelor, Brodnax, Guthrie & Primm, Miami, for appellant.
    Cypen & Nevins and Stephen H. Cypen, Miami Beach, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is a counterclaim in a mortgage foreclosure suit in which the counterclaim-ant-mortgagor sought a declaratory decree, injunctive relief and damages against the plaintiff-mortgagee. The trial court dismissed the counterclaim unless the counter-claimant-mortgagor posted either in the registry of the court or through a comparable alternative the amount due on the mortgage plus delinquent interest and taxes. The counterelaimant-mortgagor takes an interlocutory appeal.

The issue presented for review is whether a trial court can condition the hearing of a counterclaim in a mortgage foreclosure suit on the counterclaimant’s payment into the registry of the court of the amount due on the mortgage plus delinquent interest and taxes. We hold that the trial court may not make such a pre-condition for access to the courts and that to do so constitutes a violation of the counter-claimant’s right to free access to the courts guaranteed by Article I, Section 21, Florida Constitution (1968). Accordingly, we reverse.

On January 10, 1969, the appellant-mortgagor, G.B.B. Investments, Inc. [“G.B.B.”] purchased a large tract of land in Dade County, Florida, from the appellee-mortga-gee Ernest Hinterkopf and Hilda D. Hinter-kopf, as trustees under the Hinterkopf Trust [“Hinterkopfs”]. In payment thereof, G.B.B. gave the Hinterkopfs a promissory note in the amount of $3,280,000 secured by a purchase money mortgage. The note was payable in ten annual installments of $328,000 plus 5V2 percent interest beginning January 10, 1970.

The mortgage deed provided that G.B.B. was entitled to release from lien of certain mortgaged parcels of land upon payment of a certain sum per acre. The price paid for each release was to be credited against the next subsequent payment of principal becoming due on the note. The parties subsequently entered into a mortgage modification agreement providing for a different release schedule of properties at a higher release price. G.B.B. also agreed to have a road built onto the property by a date certain or make other arrangements satisfactory to the Hinterkopfs. If this was not accomplished, G.B.B. would be entitled to nor more releases of land.

Several years thereafter, the parties fell into a number of disputes. The Hinter-kopfs eventually filed suit to foreclose the mortgage on the ground of waste. They further amended their suit to allege a default on the January 1976 mortgage payment.

G.B.B. answered denying waste and filed an amended counterclaim against the Hin-terkopfs for a declaratory decree, injunctive relief and damages. G.B.B. alleged in, the counterclaim that it was entitled to a declaration of rights under the mortgage modification agreement. It alleged that the Hin-terkopfs have refused to accept release payments when tendered by G.B.B. for particular tracts of land; that a certain sale of land by G.B.B. to a third party has thereby been thwarted; that it was entitled to the release of certain tracts of land upon proper payment as previously tendered; and that the said mortgage modification agreement was in full force and effect even though the road on the property had not been built since satisfactory arrangements had been made with Dade County to build the road in the near future. G.B.B. further sought damages in its counterclaim for interference with contractual relations in that the Hinterkopfs allegedly interfered with and caused the loss of a contract between G.B.B. and a third party on the sale of certain tracts of land which allegedly should have been released by the Hinter-kopfs.

The trial court upon motion of the Hin-terkopfs entered an order dismissing the G.B.B. counterclaim “unless G.B.B. shall deposit into the registry of this court . the aggregate sum of $427,547.60.” This amount represented the January 1976 mortgage payment plus delinquent interest and real estate taxes allegedly owed by G.B.B. If payment was made after a certain date, the sum required to be deposited would be increased by $197.70 per day. There were alternative provisions in the order for making these payments by setting up a joint bank account and issuing a letter of credit. G.B.B. appeals this order.

I

We are unable to find any authority, and the appellees cite none, which requires a mortgagor in a mortgage foreclosure suit to pay into the registry of the court all mortgage payments plus delinquent interest and taxes as a pre-condition for maintaining a counterclaim against the plaintiff-mortgagee. No Florida statute authorizes it. No Florida case sanctions it. No Florida constitutional provision mandates it.

This lack of authority for such a financial requirement to bringing suit brings the precondition into direct collision with G.B.B.’s constitutional right to free access to the courts. Article I, Section 21, Florida Constitution (1968), expressly provides:

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

This constitutional right has roots deep in Anglo-American legal history dating back to the Magna Charta. Flood v. State ex rel. Homeland Co., 95 Fla. 1003, 117 So. 385 (1928). It first appeared in Florida in the 1838 Florida Constitution and has been retained in every constitutional revision since then. It guarantees to every person the right to free access to the courts on claims of redress of injury free of unreasonable burdens and restrictions. Any restrictions on such access to the courts must be liberally construed in favor of the constitutional right. Lehmann v. Cloniger, 294 So.2d 344 (Fla. 1st DCA 1974).

The courts have generally disapproved financial pre-conditions to bringing claims or asserting defenses in court aside from court related filing fees. A payment to the court clerk to be used in constructing a county law library as a condition for bringing a lawsuit has been declared an undue burden on the right of free access to the courts. Flood v. State ex rel. Homeland Co., 95 Fla. 1003, 117 So. 385 (1928). Requiring a defendant in a criminal case to pay court-appointed counsel fees and certain appellate costs as a condition for being heard on a motion for supersedeas bail following conviction has been struck down on the same ground. Bell v. State, 281 So.2d 361 (Fla. 2d DCA 1973). And requiring payment of a sum of money into the registry of the court unrelated to filing fees as a condition for defending a lawsuit has long been declared constitutionally impermissible. Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897).

The Supreme Court of Florida in Carter v. Sparkman, 335 So.2d 802, 805 (Fla.1976), recently spoke to the limited nature of the restrictions which can be constitutionally placed on a party’s right to free access to the courts. The Court stated:

“Although courts are generally opposed to any burden being placed on the rights of aggrieved persons to enter the courts because of the constitutional guarantee of access, there may be reasonable restrictions prescribed by law. Typical examples are the fixing of a time within which suit must be brought, payment of reasonable cost deposits, pursuit of certain administrative relief such as zoning matters or workmen’s compensation claims, or the requirement that newspapers be given the right of retraction before an action for libel may be filed.”

One might also mention that by statute a taxpayer must pay all tax assessments which he admits in good faith to be owing before he can bring suit to contest a tax assessment against him claimed to be excessive. Section 194.171(3)(4), Florida Statutes (1975). Millstream Corp. v. Dade County, 340 So.2d 1276 (Fla. 3d DCA 1977), opinion filed January 4, 1977.

Unlike the limited restrictions recognized above, we see no valid or reasonable basis for the financial pre-condition imposed by the trial court herein for G.B.B. to maintain its counterclaim. The payment of the alleged overdue mortgage payment plus delinquent interest and taxes was entirely unnecessary in order for the court to reach the merits of the counterclaim. The payment furthermore had no reasonable relationship to any valid public policy purpose. It accordingly must fall as an unreasonable burden on G.B.B.’s constitutional right to free access to the courts.

II

The appellee Hinterkopfs do not seriously defend the financial pre-condition to the maintenance of the G.B.B. counterclaim. Instead, they seek to avoid the issue by arguing that G.B.B. invited the admitted error by alleging in its counterclaim that it stood ready to make the January 1976 mortgage payment upon order of the court. That is a far cry from asking that its counterclaim be dismissed if it failed to make good on this offer. G.B.B. at no time sought or solicited the order appealed from and indeed vigorously resisted it in argument before the trial court. Moreover, G.B.B. contends that it lacks the financial resources to make the January 1976 mortgage payment because of the Hin-terkopfs’ interference in its contract with a third party. In no sense, can it be said that G.B.B. invited the error in this case.

The Hinterkopfs further argue that the trial court was right in dismissing the G.B.B. counterclaim but for the wrong reason. The right reason, argue the Hinter-kopfs, is that the counterclaim failed to state a cause of action for declaratory relief. This contention, of course, does not touch the G.B.B. counterclaim for damages for interference with contractual relations. In any event, the trial court could not have reached this result because it dismissed the counterclaim by its order only if G.B.B. failed to pay the financial pre-condition stated. If the financial pre-condition had been met by G.B.B., the counterclaim would not be dismissed under the order and would stand as a valid cause of action. Consequently, the stipulated financial pre-condition is an essential part of the order appealed from and the merits thereof cannot be avoided on appeal.

Finally, the Hinterkopfs argue that the record on appeal is insufficient. We disagree. Fla.App. Rule 4.2 d.

III

The order appealed from is reversed and the cause remanded to the trial court for proceedings consistent with this opinion.

Reversed and remanded.

      . Chapter 29 of the Magna Charta provides in part: “To none will we sell, deny, or delay right or justice.” T. Plucknett, A Concise History of the Common Law 24 (5th ed. 1956).

      . “[W]e declare . . . That all courts shall be open, and every person, for an injury done him, in his lands, goods, person, or reputation, shall have remedy by due course of law and right and justice administered, without sale, denial, or delay.” Art. I, § 9, Fla.Const. (1838); Art. 1, § 9, Fla.Const. (1861). Virtually the same wording is contained in Art. I, § 9, Fla. Const. (1865), and Decl. of Rts., § 4, Fla.Const. (1885).

      . In the court below, but not in their brief on appeal, the Hinterkopfs argued that the financial pre-condition herein was justified on the authority of Itvenus, Inc. v. Poultry, Inc., 241 So.2d 452 (Fla. 3d DCA 1970). That reliance was misplaced. In Itvenus this court held that a trial court had no authority to excuse a mortgagor from making due and owing mortgage payments. The mortgagor was suing the mortgagee at the time for breach of contract to make certain improvements on the mortgaged property. This court did not hold or suggest that if the mortgagor failed to make his mortgage payments, his lawsuit should be dismissed.


source: Caselaw Access Project

author: PAUL, MAURICE M., Associate Judge.

license: Public Domain

text:
    MATHEWS CORPORATION, a Florida Corporation, Appellant, v. TUTTEN ENTERPRISES, INC., a Florida Corporation, Appellee.
    No. 76-90.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1977.

      Robert E. Ziegler and Charles G. Brac-kins, Fort Lauderdale, for appellant.
    Robert N. Fryer, Jr., of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for ap-pellee.
   PAUL, MAURICE M., Associate Judge.

Appellant, defendant below, seeks reversal of a summary judgment entered against it upon a claim citing breach of contract. Briefly, appellant was the contractor for building a serum processing plant for Gray Industries, owner, and in that capacity, entered into a sub-contract with Tutten Enterprises, Inc., plaintiff below on April 16, 1971, whereby Tutten was to perform certain electrical work for the sum of $99,-900.00, to be paid as follows: “It is further agreed that the said Contractor hereby agrees that he will pay to the subcontractor, for the above described work, the sum of $99,900.00, payable as follows: 90% of labor and materials in place. To be billed on the 25th of each month, and payable on receipt of payment from owner ” (emphasis supplied).

In the fall of 1971 .the owner encountered difficulties- and the project was not completed, including the electrical work of the subcontractor, Tutten. The owner of the project, Gray Industries, was adjudicated bankrupt. Defendant itself has not been paid by the owner for all the work performed, including the electrical work performed by Tutten, but is continuing to actively seek payment from the Trustee in Bankruptcy. To date no payment from the bankrupt estate has been forthcoming.

. Subsequent to the work being stopped, and the owner (Gray Industries) being declared bankrupt, plaintiff (Tutten) brought suit against Mathews Corporation to recover for work performed by it under the sub-contract, but for which it had not been paid. During the pendency of the action, the parties entered into an agreement for settlement which provided, among other things, for Defendant (Mathews) to deliver a promissory note to plaintiff (Tutten) for the amount claimed and owing. The note provided that

“. . . Interest to be paid at the same rate and for the same term as is set by the Federal Bankruptcy Court in the matter of the Gray Industries, Inc., Bankruptcy. Principal and interest is due and payable on date Maker, Mathews Corporation is paid by the Bankruptcy Court and/or Trustee in Bankruptcy in the Matter of the. Gray Industries, Inc., Bankruptcy proceeding” (emphasis supplied).

The settlement agreement recited an amount then due and owing of $28,385.60, the defendant (Mathews) making an immediate payment of $5,000.00 and executing the above referenced note for $18,385.60. Additionally, it was agreed that the trial would be continued for up to one year and, in the event the note was not paid within that, time, .the matter would be reset for trial, at. which trial the amount due and owing would not be an issue.

No payment was made and the cause was reset for trial, giving rise to the summary judgment herein complained of; the trial judge finding no issue of material fact. We respectfully disagree with that finding. Having carefully reviewed the pleadings, affidavits, transcript of hearing, and having read the briefs and considered the oral argument, we find that material issues of fact exist which preclude entry of summary judgment.

In Edward J. Gerrits, Inc. v. Astor Electric Service, Inc., 328 So.2d 522 (Fla. 3d DCA 1976), the Third District Court of Appeal considered a provision' in a contract between the contractor and subcontractor as follows, at page 523:

“Section IV — Payments: The General Contractor agrees to pay to the Sub-contractor for the performance of his work the sum of ONE MILLION, TWELVE THOUSAND, FOUR HUNDRED FORTY Dollars and no/100 ($1,012,440.00) which amount includes all work in Section II of this contract, all permits that must be taken out for the performance of his work, all taxes, licenses, fees, etc. The money to be paid in current funds and at such times as the General Contractor receives it from the Owner.” (Emphasis added.)
“The contractor relies upon the rule that where a promise to pay is conditioned upon the realization of a particular fund, then the promise may not be enforced unless the fund is realized. Cohen v. Mohawk, Inc., Fla.1962, 137 So.2d 222; see Mascioni v. I. B. Miller, Inc., 261 N.Y. I, 184 N.E. 473 (1933).
“The sub-contractor urges that the provision for payment to it ‘at such times as the General Contractor receives it from the owner’ is a provision as to time of payment. The Sub-contractor further points out that in such circumstances, some courts have held that the debt still exists and must be paid within a reasonable time. See Mock v. Trustees of First Baptist Church of Newport, 252 Ky. 243, 67 S.W.2d 9, 94 A.L.R. 716 (1934); Thos. J. Dyer Co. v. Bishop International Engineering Co., 303 F.2d 655 (6th Cir. 1962). “We hold that the better reasoned view is that expressed by the Court of Appeals of New York in Mascioni v. I. B. Miller, Inc., 261 N.Y. 1, 184 N.E. 473 (1933). The court dealt there with a provision in a contract providing for ‘payments to be made as received from the Owner.’ The provision in the present contract is a very similar one providing for ‘The money to be paid in current funds and at such times as the General Contractor receives it from the Owner.’ In each case, the subject is not a debt already in existence but an obligation to pay upon a contract which created the obligation. The contract may be reasonably interpreted as shifting to the sub-contractor the risk of the owner’s failure to pay.
“We recognize that every contract is to be construed in accordance with the intention of the parties. On the motion for summary judgment, the contractor, by its affidavit, has introduced into this cause the issue of the intention of the parties. The sub-contractor has maintained as to the summary judgment that the intention is immaterial, but this does not bar a litigation of the issue if it is found to be material.”

We agree with the above quoted holding and reasoning of the Third District Court of Appeal.

Accordingly, the summary final judgment for the plaintiff sub-contractor is reversed and remanded for trial on the issue of the construction of the contract in question and/or the construction to be given to the note in question and for such further proceedings as may be proper in accordance with the views herein expressed.

The trial court, in its discretion, may permit amendments to the pleadings as may be necessary to a complete determination of the issues.

REVERSED.

CROSS, J., and CARLTON, CHARLES T., Associate Judge, concur.


text:
    Ronald T. ELLIOTT, husband, Appellant, v. Nancy L. ELLIOTT, wife, Appellee.
    No. 76-255.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1977.

      P. Shields McManus of McManus & Kennedy, P. A., Stuart, for appellant.
    John A. Darlson of Barranco, Darlson & Daniel, P. A., Stuart, for appellee.
   PAUL, MAURICE M., Associate Judge.

This is an appeal from a final judgment of dissolution of marriage awarding the wife a money judgment against the husband in the amount of $107,413.50 based upon." ... , a special equity in.money loaned by her to Respondent . . . ” and decree ordering respondent/husband “ . . . to indemnify Petitioner for any sums paid by Petitioner pursuant to any judgments which may be entered against her' . . . ” in a certain described civil action then pending in Martin County.

The record reveals that the parties were married to each other on December 31, 1970; the wife alleged a,special equity in certain described properties or businesses of the husband by virtue of money “lent” to him, or bills paid, including an I.R.S. tax lien, from the proceeds of a mortgage on her home or proceeds realized on the sale of her home. It further appears that money was borrowed at various times from commercial banking institutions by signing of joint notes; the wife also .placed certain stocks into, joint ownership with the husband which in turn were pledged as collateral for one or more of the aforementioned loans and which were sold , by the bank to partially liquidate the joint indebtedness.

The husband was adjudicated bankrupt in November of 1975 and all of his businesses have. been lost; husband is now unemployed, receiving unemployment compensation, and owns no property.

The lower court was correct when it summed up the situation saying:

“Obviously, the big'problem jiere is the financial situation and it’s unfortunate that these people lost money and its unfortunate that she had money that she turned over to her husband and he apparently lost it but, the problem is what recourse does she have in this dissolution of marriage suit. She certainly cannot claim alimony when he has no assets, is on unemployment. She has income and assets so it just cannot be alimony and you cannot give it to her under the guides of lump sum alimony because it shows no need for her to have support or his need to pay.”

However, the court was incorrect when it continued, by saying: “Now, certainly she is entitled to have a judgment against him for her special equity and money loaned to him . . . plus, she should be indemnified by him for anything she has to pay in the pending Stuart National Bank .suit which was discussed.”

The record demonstrates that this cause is controlled by the views expressed by this court in Rey v. Rey, 279 So.2d 360 (Fla. 4th DCA 1973) and Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971), and which will not be repeated here since it would have no value except to lengthen this opinion.

The final judgment is AFFIRMED as to the dissolution of marriage and award of the automobile to the wife but is REVERSED as to the award of a money judgment against the husband and requiring the husband to indemnify the wife which may be entered against her in Civil Action 75-359, Circuit Court, Martin County, Florida.

AFFIRMED in part; REVERSED in part.

CROSS, J., and CARLTON, CHARLES T., Associate Judge, concur.


author: PER CURIAM.

text:
    Emily YAWN et al., Appellants, v. Eugenia C. BLACKWELL, Individually and as Executrix of the Estate of Elizabeth Lesesne Collins, Deceased, Appellee.
    No. 75-1402.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied April 6, 1977.
    Prunty, Ross, DeLoach & Olsen, Miami, for appellants.
    Hendricks & Hendricks, Coral Gables, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

The plaintiffs appeal a summary final judgment for the defendant. The plaintiffs in their complaint prayed for the imposition of a trust described as a constructive trust upon real property the title of which is held by the defendant, Eugenia C. Blackwell. The complaint was amended without changing any factual allegations to describe the trust claimed as a resulting trust.

There are many issues of fact appearing from the pleadings and affidavits before the trial court. The court determined that there was no genuine issue of material fact because, under the facts presented, the plaintiffs’ claim was actually for the imposition of a constructive trust, which imposition is barred by Section 95.231, Florida Statutes (1975).

“95.231 Limitations where deed or will on record.—
“(2) After 20 years from the recording of a deed or the probate of a will purporting to convey real property, no person shall assert any claim to the property against the claimants under the deed or will or their successors in title.”

See Wadlington v. Edwards, 92 So.2d 629 (Fla.1957).

Plaintiffs urge that the determination was improperly made upon summary judgment. See the discussion in Baskin v. Griffith, 127 So.2d 467, 473-474 (Fla. 1st DCA 1961). The Supreme Court of Florida, in speaking of the application of the twenty year statute of repose has held that there is a difference in the application of the statute to resulting trusts and to constructive trusts.

“Appellant relies on cases holding that a statute of limitations will not run against the rights of a beneficiary as opposed to the trustee in an express trust or in a resulting trust until such time as the alleged trustee denies the trust relationship or otherwise asserts an interest antagonistic to the beneficiary. Appellant then reasons that she was not bound to act until such time as the appellee affirmatively moved to destroy the trust relationship and set up an antagonistic interest.
“The difficulty with appellant’s position simply is that this rule does not apply to constructive trusts. The obvious reason for the distinction is apparent. A constructive trust has its inception in an antagonistic relationship. It is founded in a situation produced by fraud, undue influence, abuse of confidence or mistake. The rights of the beneficiary as against the antagonistic claims of the trustee under a deed such as the one before us come into being when the deed is recorded or at the earliest when the beneficiary knew or should have known of the adverse claim of the trustee.”

* * sft * * *

Wadlington v. Edwards, 92 So.2d 629 at 631-632 (Fla.1957). See also Grapes v. Mitchell, 159 So.2d 465 (Fla.1963); and Peacock v. Firman, 177 So.2d 560 (Fla. 3d DCA 1965).

We hold that it does not appear at this stage of the cause that plaintiffs do not have an action for a resulting trust. Therefore, there are genuine issues of material fact and the trial court will determine from the evidence presented whether a resulting trust came into being.

Reversed and remanded.

HENDRY, C. J., dissents.


text:
    Carol Parent JACOBSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-415.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied April 13, 1977.
    Bennett H. Brummer, Public Defender, Elliot H. Scherker, Asst, Public Defender and Alan M. Medof, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., BARKDULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Williams v. State, 110 So.2d 654 (Fla.1959); State v. Jones, 204 So.2d 515 (Fla.1967); Wingate v. State, 232 So.2d 44 (Fla. 3rd D.C.A. 1970); Broge v. State, 288 So.2d 280 (Fla. 4th D.C.A. 1974); Jenkins v. State, 317 So.2d 90 (Fla. 1st D.C.A. 1975); Dodson v. State, 334 So.2d 305 (Fla. 1st D.C.A. 1976).


text:
    Richard WASHINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1054.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied April 13, 1977.
    Lee & Long, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Margarita G. Esquiroz, Asst. Atty. Gen., and Paul Mendelson, Legal Intern, for appellee.
    Before HENDRY, C. J., NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   DREW, E. HARRIS (Ret.), Associate Judge.

Richard Washington was convicted of the unlawful possession of a controlled substance (heroin), and sale and delivery of such substance. His conviction was based solely on the testimony of Police Officer Barbara Simms, who testified that she and a confidential informant (Jarrow) purchased $100.00 of heroin from Washington.

Prior to the trial, the State and the defendant agreed (and the court approved such agreement) that a polygraph examination would be made of the defendant and that, whether favorable or unfavorable, it would be used and presented in the trial. The expert agreed on to conduct such examination made his report, in which he said:

* * * * 4- *

“It is the opinion of this examiner that Richard Washington never sold heroin to Officer Barbara Simms. He never passed heroin into her hand, that the $150 he received in the presence of Simms and Jarrow was handed to him by Jarrow. That $150 was for the repayment of a loan to Jarrow, the confidential informant.”

On the witness stand, this expert, in answer to the final question in an extensive cross-examination, said:

“It’s definitely my opinion that Richard Washington was telling me the truth that he did not sell heroin to the narcotics officer, nor did he receive money from her; that the $50 that he did receive came from the confidential informant, Jarrow, as repayment of a debt. There are good strong reactions. There is absolutely no doubt in my mind.”

The defendant’s principal contention here is that the closing remarks of the State Attorney to the jury were of such nature and so prejudicial that a reversal and new trial is commanded by the law. The remarks objected to are:

* * * * * *
“When I told them [the police officers] that the man [the accused] took a polygraph examination and the examiner says it appears he’s not being deceptive, why are they still sitting [in the courtroom], why don’t they shirk, why don’t they drop that case?
“ ‘Waksman, we will do another one’, you don’t see them running away.
“The defendant admitted through the polygraph examiner that she [the undercover officer] was in his house. Why didn’t she stay in the office and conduct this investigation? She’s a police officer, everyday floating through Liberty City, everyday their life is on the line.
“We saw wakes, three police officers working — ■” [emphasis added]

Although the transcript of testimony at the trial fails to show any additional prejudicial remarks by the State Attorney, appellant argued in his motion for new trial and here that in addition to the above, and while appellant was making his objection to the court, the State Attorney additionally said: “You know what is happening to the police officers in this community”. He argues that the fact such statement was made is evidenced by the trial judge’s instruction to the jury to disregard the remark, viz: “The jury will disregard any remarks by the prosecutor concerning what may or may not have happened to police officers.” [emphasis added by appellant]. Additionally, appellant argues that while the trial judge admonished the jury, as quoted above, he failed to rebuke the prosecutor for making such remarks.

The State says that the remarks of the State Attorney were justified because of the repeated, although “thinly veiled attacks” on the integrity of the Miami police officers by appellant’s counsel in his opening argument. While there may be some merit to the State’s position and while we would, in many cases, look upon the situation here as falling within the harmless error doctrine, for the reasons hereafter discussed we think a new trial is clearly required by the law.

The trial in this cause was conducted about two weeks subsequent to the shooting deaths of three police officers in Miami Beach, who were in the process of arresting an alleged car thief. During the period between the deaths of these officers and the time of the remarks of the prosecuting attorney, the local newspapers had carried many stories of these killings and had conducted a long series recounting the deaths of some 15 police officers over the past years. At the hearing on the motion for new trial, appellant presented to the trial court some 20 exhibits of various newspaper stories on the deaths of police officers killed in the line of duty, all of which were of wide distribution in the County and, during the short period immediately preceding the trial, examples of headlines or leads on some of the articles are: “Policemen, they died protecting us. The saga of 15 fallen officers.” “A memorial to Dade’s fallen heroes.” “Citizens and brother officers mourn three slain policemen.”

We now turn to the testimony of the only witness for the State, who testified as to the purchase of the heroin from the defendant, Barbara Simms. She had been a plain clothes police investigator for about one year and an undercover agent in the narcotics division about six months prior to the purchase from the defendant and, during such period, had been responsible for 40 to 45 similar arrests. The trial was held April 14th to 16th, 1976, some 8V2 months later. At the trial, she identified the defendant and clearly related the circumstances of the purchase and that she paid the defendant $100.00 for the heroin. The only person present during the transaction was the undercover agent, who did not testify. A recorder hidden on the person of Officer Simms, for the purpose of recording and transmitting any conversation and to enable police officers stationed nearby with receivers to respond to a call for help from her, malfunctioned (according to the State’s evidence) and no part of the dialogue of the sale was available at trial.

We cannot accept the State’s argument that the admonishment of the jury by the trial court, even though he failed to rebuke the prosecutor, cured any error which might have been committed; nor can we agree that, on the record in this case, the error was harmless. There could have been no other purpose in making the questioned remarks, in the light of the flood of publicity as here related, except to bring to the jury’s attention facts far beyond the scope of the issues being tried. Had the evidence of defendant’s guilt here been (as is required in these circumstances) “beyond a reasonable doubt” in the minds of the reviewing court, the harmless error statute may well have been applicable and we would probably have applied it. But such is not the case. There are too many questions yet unanswered, and too much doubt as to the answers given; a grave possibility of the failure to receive a constitutionally guaranteed fair trial in the face of the emotions created by the deaths of the three police officers and the publicity concerning many others who had been killed in the line of duty, for us to say that we have “no reasonable doubt” as to the guilt of the defendant. We think, and hold, that the ends of justice require that the conviction be set aside and that the defendant be tried anew.

We find no merit to the defendant’s Point III concerning the origin and identification of the contraband.

Reversed for new trial.

      . Pait v. State, 112 So.2d 380 (Fla.1959); Deas v. State, 119 Fla. 839, 161 So. 729 (1935).

      . Wingate v. State, 232 So.2d 44 (Fla. 3rd D.C. A.1970); Ricks v. State, 242 So.2d 763 (Fla. 3rd D.C.A.1971); Broge v. State, 288 So.2d 280 (Fla. 4th D.C.A. 1974); Gray v. State, 296 So.2d 612 (Fla. 3rd D.C.A.1974); Pitts v. State, 307 So.2d 473 (Fla. 1st D.C.A.1975).

      . Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).


author: PEARSON, Judge.

text:
    Paul L. MANSELL, Jr., Appellant, v. George B. FOSS, Jr., Appellee.
    No. 76-1617.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied April 13, 1977.

      Edward C. Vining, Jr., Miami, for appellant.
    George B. Foss, Jr., in pro. per.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PEARSON, Judge.

Paul L. Mansell, Jr., appeals a final judgment rendered against him in the trial court. The plaintiff was George B. Foss, Jr., an attorney at law. Foss sued Mansell on a complaint in which he claimed damages because of the breach" of a written contract of employment whereby Mansell retained Attorney Foss for certain litigation and agreed to pay a reasonable fee therefor. Foss claimed that he performed the services but was paid nothing beyond a retainer. After trial before the court without a jury, the trial court found for Attorney Foss but upon a theory different from that set forth in the complaint. No motion was made, nor was there any suggestion by the court, that the pleadings were amended to conform to the evidence. See Fla.R. Civ.P. 1.190 and Dixie Farms, Inc. v. Timmons, 323 So.2d 637 (Fla.3d DCA 1975). The court found as. follows:

.“1. The Court finds the defendant-and the law firm of Fowler, White, Gillen, Humkey and Trenam entered into a written contract for. the law firm to provide legal service to the defendant arising from a dispute between the defendant and certain Monroe County officials concerning a garbage franchise. The agreement was ratified by the defendant in writing, the payment of costs and retainers, and by oral acceptance.
, “2. The legal services were provided on behalf of the law firm largely by George B. Foss, Jr., and from the evidence, it appears something in excess of 900 hours were expended in behalf of the defendant in this litigation.”

On this appeal, appellant Mansell maintains that the trial court erred in allowing into evidence, as a surprise to him, an assignment to the effect that, although the work was performed by a former firm of which Foss was a member, the rights to the fee had been assigned by the firm to Foss, individually. Appellant’s position is supported by the record and we agree that such procedure requires a reversal of the judgment.' “It is well settled that, regardless of what the evidence may otherwise show, plaintiff must recover, if at all, on the case made by her declaration.” Atlantic Co. v. Orendorff, 156 Fla. 1, 22 So.2d 260 (1945). See also Atlantic Coast Line R._ Co. v. Johnson, 40 So.2d 892 (Fla.1949). Whereupon, the final judgment is reversed and the cause remanded to the trial court with directions to provide the plaintiff. with an opportunity to amend his complaint if he so desires.

Reversed and remanded with directions.


author: PER. CURIAM. PER CURIAM.

text:
    Clifford HALLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-23.
    District Court of Appeal of Florida, Second District.
    March 9, 1977.
    Rehearing Denied April 13, 1977.
    Jack 0. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   ON MOTION TO QUASH APPEAL

PER. CURIAM.

Appellant seeks to appeal an order denying a three-part motion filed below: 1) a “Motion for Reduction of Sentence;” 2) a “Petition for Writ of Coram Nobis;” and 3) a “Motion to Set Aside Sentence and Motion for New Trial.” The state’s motion to quash is well taken.

Appellant was convicted of first-degree murder and sentenced to death. The judgment and sentence were affirmed by our Supreme court in Hallman v. State, 305 So.2d 180 (Fla.1974). The underlying basis of the three-part motion, which was denied by the order appealed from, is that subsequent to the full appellate process it was discovered that the victim of the murder may have died because of intervening negligence on the part of doctors at Tampa General Hospital who were called upon to treat her for the wounds that were received at the hands of appellant. In other words, the basis for the relief prayed for by appellate is “newly discovered evidence.”

To begin with, insofar as the order appealed from denies that part of appellant’s motion seeking reduction of sentence, such order is a nonappealable order. This court is thus without jurisdiction to consider it. See Parker v. State, 214 So.2d 632 (Fla.2d DCA 1968).

Concerning that part of appellant’s motion seeking a writ of error coram nobis, it is well settled that permission to seek such a writ must be sought and granted by the appellate court which had previously entertained an appeal from the final judgment in the case and affirmed it by its mandate. The mandate of the appellate court in such case becomes the judgment of the appellate court; and, here, it’s the supreme court. See Russ v. State, 95 So.2d 594 (Fla.1957) and Cayson v. State, 139 So.2d 719 (Fla.1st DCA 1962).

Finally, with respect to that part of appellant’s motion “to set aside sentence and motion for new trial,” the motion is too late insofar as it seeks a new trial and is again predicated on “newly discovered evidence” as a basis for setting aside of the sentence. As to this latter point, appellant asks us to consider the motion alternatively as one filed pursuant to Rule 3.850 and as a collateral attack at least on the sentence. It is clear, however, that “newly discovered evidence” cannot be raised as the basis for relief under that rule. See Hamilton v. State, 237 So.2d 255 (Fla.2d DCA 1970). “Newly discovered evidence” must be raised by petition for writ of error coram nobis which, as we’ve noted, must be addressed to the appellate court which first issued its mandate in the case.

In view whereof, the motion to quash the appeal herein should be and it is hereby granted. The appeal stands dismissed.

BOARDMAN, C. J., and McNULTY and OTT, JJ., concur.

ON REHEARING

PER CURIAM.

Relating here only to that portion of appellant’s appeal herein seeking a writ of error coram nobis, we denied such relief on the ground that permission to seek such writ must be sought and granted by the appellate court which had previously entertained an appeal from the final judgment in the ease and affirmed it by its mandate. (That court, in this case, is the supreme court since the imposition of the death penalty was involved.) We relied for such holding on Ex parte Welles, 53 So.2d 708 (Fla.1951), which held precisely that.

Appellant now asks us to clarify that holding in light of the opinion of this court in Hamilton v. State, 237 So.2d 255 (Fla.2d DCA 1970), in which we held that, notwithstanding a prior appeal to this court, writ of error coram nobis based on newly discovered evidence should be sought and granted by the trial court. A careful reconsideration of Hamilton in the light of Ex parte Welles, supra, persuades us now that we departed from the discipline of Welles and were in error to the extent that we said coram nobis must be sought in the trial court. We therefore reaffirm our holding in Hamilton that newly discovered evidence should be considered through the vehicle of coram nobis, but recede therefrom to the extent that we now hold that permission to seek a writ therefor must be sought and granted by the appellate court which previously had entertained an appeal in the case and affirmed it by its mandate.

In view whereof, petition for rehearing is denied.

BOARDMAN, C. J., and McNULTY and OTT, JJ., concur.

      . But see Kellerman v. State, 287 So.2d 702 (Fla.3d DCA 1973); Fast v. State, 221 So.2d 203 (Fla.3d DCA 1969); Nelson v. State, 208 So.2d 506 (Fla.4th DCA 1968); Tolar v. State, 196 So.2d 1 (Fla.4th DCA 1967).


author: LETTS, Judge.

text:
    Devon Dale BIENZ, Appellant, v. STATE of Florida, Appellee.
    No. 75-1889.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1977.

      Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and Edward M. McGehee, Legal Intern, West Palm, Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

The appellant entered into a negotiated plea of guilty as to breaking and entering with intent to commit a felony to wit: grand larceny, contrary to Florida Statute 810.02. The trial court accepted the negotiated plea and placed the appellant on probation for three years. One month later, the appellant was charged with a violation of one of the conditions of his probation, specifically, condition 7 of his probation order, which stated that:

You will promptly and truthfully answer all inquiries directed to.you by the Court or the Probation Supervisor, and allow the Supervisor to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you. ■ ,

Pursuant thereto, a hearing was held,' and the judge below ordered the probation revoked, and the appellant returned to jail. We disagree and reverse.

The salient facts are that the appellant’s probation supervisor, being dissatisfied with his (the appellant’s) behavior, subsequent to the judge’s order of probation, required the appellant to enter a Halfway House program, required him to reside within that program, required him to follow all the rules and regulations of it, and to remain there until such time as he had the probation supervisor’s permission to leave. Thereafter, the appellant obediently went to the Halfway House, with the strong admonition from his probation supervisor that he “ . . . follow the rules and regulations of the program,” and upon arrival was informed by the residence director that he was “free to leave at any time.” Moreover, he was furnished with a copy of the rules of the facility, which he had to sign a receipt for, which said rules included the following statement:

If any task you are asked to do here seems menial or demeaning, feel free to leave.

Apparently, the appellant was not a model inmate, not very cooperative, and his treatment coordinator at the program described instances involving the appellant breaking several of the rules. This unsatisfactory course of conduct eventually resulted in the coordinator instructing the appellant to wear diapers on the outside of his pants because, in the words of the therapist coordinator:

“ . . . his attitude reflected the actions of a baby, and because of that, as a learning experience for himself, he would wear a diaper . . . . At that coup-selling session, I told him that that would be his learning experience. If he chose not to accept it, he would have to leave the facility.

Accordingly, at 10:00 P.M., on the same day as the command that he wear diapers, the appellant left the facility, and called his probation officer the next morning to report that he had done so, because he did not want to suffer the humiliation of wearing them. Notwithstanding this unsolicited report of his actions, coupled with his immediate voluntary visit to his probation supervisor, on the same day, he was immediately re-arrested, charged with violating condition 7 of his probation, and found guilty of violating said probation “in that he did leave the program without permission (of his probation supervisor).”

There was hearsay testimony at the probation violation hearing about the appellant’s behavior, both before he went to the Halfway House, and after he got there, which may well have justified a revocation of his probation and influenced the judge; however, the record reflects that the charge against him, and the order resulting therefrom, concerned themselves solely with the fact that the appellant had left the Halfway House without his supervisor’s permission.

We cannot agree with the lower court’s decision. The probation supervisor’s instructions were that he obey all rules and regulations of the Halfway House. One such, in writing, provided that if he was asked to do anything “demeaning” he could leave. It is not the function of this Court to probe the Freudian recesses of a psychotherapist’s mind, if, indeed, it could ever be done; suffice it to say that a command from a therapist that an adult male wear diapers in public would certainly be demeaning in the minds of, so called, reasonable men. Certainly the appellant found it so, and quit the program as a result. The rules and regulations of the institution, which his probation supervisor had instructed him to follow, permitted the appellant to do as he did, and he cannot now be faulted for doing it. It is true that the more prudent course for the appellant to follow would have been to notify his supervisor of his intention to depart the program before he did so, but in the light of the repeated statements from the Halfway House personnel that he could leave at any time, we cannot argue that this single act complained of, was, in itself, a probation violation. Had he left and failed to report his departure, then we might be otherwise disposed; however, he voluntarily reported his departure in less than 24 hours and thereafter, on the same day, voluntarily reported to his probation supervisor’s office. Not surprisingly, prior decisions involving such bizarre incidents are sparse; however, we note the case of Kominsky v. State, 33Ó So.2d 800 (Fla. 1st DC A 1976), wherein the court held that an 8:00 P.M. to 6:00 Á.M. curfew was “ . . .so harsh that it will counteract the concept of rehabilitation through the means of probation.” We cannot suppose that obedience to a command to wear diapers is any less harsh.

Under the circumstances, we find it error for the judge to conclude that the appellant was guilty of violating his probation, by leaving the program without permission, and we do so, without the necessity of considering whether or not the probation supervisor had the necessary authority, on his own, to commit the appellant to such an institution in the first place.

Reversed.

MAGER, C. J., and CROSS, J., concur.


text:
    David ROLLINS, Appellant, v. Evelyn ROLLINS, Appellee.
    No. 76-302.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1977.

      Robert H. Springer and Donald P. Kohl, Kohl, Springer, Springer & Vassallo, West Palm Beach, for appellant.
    John C. Gesch, Thompson, Tucker & Slawson, West Palm Beach, for appellee.
   PER CURIAM.

Appellant contends the trial court erred in a) awarding appellee $100 per month periodic alimony, b) giving appellee permanent possession of the marital home which had been held by the entireties, and c) refusing to partition the marital home property. .

Our consideration of the briefs and record leads us to conclude the court erred in giving appellee permanent possession of the home and refusing to partition said property-

Accordingly, the provisions of the final judgment awarding appellee permanent possession of the marital home and refusing to partition said property are reversed, and the cause is remanded with directions to grant partition of said property. In all other respects the final judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.

. DOWNEY and ANSTEAD, JJ., and FO-GLE, HARRY W., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    In re Mildred Bass KEENE, w/f age 75; DOB 7-15-1900.
    No. 76-933.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1977.

      J. Russell Hornsby and James M. Campbell, Orlando, Co-counsel for appellants.
    Fred H. Cumbie II of Miles & Cumbie, St. Cloud, for appellee.
   DOWNEY, Judge.

The trial judge dismissed a Petition for Incompetency upon the filing of a report of the examining committee reporting that the alleged incompetent was indeed competent.

Appellants are daughters of Mildred Bass Keene, the alleged incompetent. They contend the trial court erred in placing too much emphasis upon the report of the examining committee and in not completing the hearing which was held pursuant to Section 744.331(4), Florida Statutes (1975). It is appellants’ position that the report of the examining committee is simply evidence to be considered by the trial judge along with other evidence bearing upon the competency of the person involved. For authority supporting that contention, appellants cite Opinion of the Attorney General 050-583. However, Section 394.22(6)(b), Florida Statutes (1950), was the statute in effect at that time and it provided that “the court may without taking any further action terminate the proceedings and dismiss the application.” Whereas, the statute controlling these proceedings in pertinent part provides:

“If the report of the examiners is that the alleged incompetent is not mentally or physically incompetent, the court shall dismiss the petition.” (Emphasis added.)

Proceedings to determine the competency of a person are generally controlled by statute and where a statute prescribes a certain method of proceeding to make that determination, the statute must be strictly followed. 41 Am.Jur.2d, Incompetent Persons, § 9.

The trial court strictly followed the mandate of the Legislature in dismissing the petition for incompetency and thus did not err in entering the order dismissing appellants’ petition which sought to have Mildred Bass Keene declared to be incompetent.

AFFIRMED.

ANSTEAD, J., and FOGLE, HARRY W., Associate Judge, concur.


text:
    John C. FULFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1850.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Rehearing Denied April 13, 1977.

      Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal from a judgment entered in 1954 finding the appellant guilty of assault with intent to commit manslaughter. Appellant was found guilty by a jury, adjudicated guilty and sentenced to ten years in the state prison. He has served his sentence and has been released. Nevertheless, the office of the Public Defender filed in this court. a petition for habeas corpus on his behalf wherein it was alleged that he was being confined in Louisiana State Prison, serving a life sentence for murder and that because of the Florida sentence, he has been classified as a third offender and, therefore, the Florida conviction constitutes a “burden” or “disability.” See Carafas v. La Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20. L.Ed.2d 554 (1968).

Out of an abundance of caution and because of the allegations of the petition, this court treated the petition as a delayed appeal pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). Briefs have been filed and arguments heard. Appellant has been totally unable to substantiate by the record any of the claims made in his petition now considered as a direct appeal. The public defender takes the position that because of the lapse of time (23 years), the appellant is unable to produce a proper record and, therefore, a new trial must be granted. We specifically reject this proposition and point out (1) that the lapse of time is not shown to be' because of fault of the State, and (2) a new trial would be tantamount to a reversal because the possibility of finding the witnesses after this delay is so small as to be non-existent.

Thereupon, the judgment and sentence are affirmed.

Affirmed.

      . No appeal was taken from the judgment and sentence but in 1974 appellant filed a motion to vacate pursuant to Fla.R.Crim.P. 3.850. The motion was denied and an appeal was filed in this court. We affirmed the denial. See Fulford v. State, 311 So.2d 203 (Fla.3d DCA 1975).


text:
    Blanca ARRIETA, Appellant, v. VOLKSWAGEN INSURANCE COMPANY and Protective National Insurance Company, Appellees.
    Nos. 75-1918, 75-1919.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Rehearing Denied April 13, 1977.

      Kuvin, Klingensmith & Lewis, Coconut Grove, Wayne, Genden & Bach, Miami, for appellant.
    Thompson & Freyer, Rentz, McClellan & Haggard, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

These appeals are from the same order and have been consolidated for all appellate purposes. The order appealed is a final judgment which dismissed . the plaintiff Blanca Arrieta’s complaint against defendants Volkswagen Insurance Company and Protective National Insurance Company of Omaha. Arrieta’s complaint sought an order “ . . . compelling the Defendants to proceed with the arbitration process in accordance with the terms of the insurance contracts . . . ” The controlling question presented is whether an injured plaintiff who has available $30,000.00 in uninsured motorist coverage, pursuant to Section 627.727, Florida Statutes (1975), may, by petition, without bringing an action against the tortfeasor, who has available $10,000.00 liability coverage, compel arbitration under his own uninsured motorist coverage. The trial court held that prior to an action against the tortfeasor, the action upon the uninsured motorist coverage could not be maintained and, accordingly, the court dismissed the complaint.

The trial judge has set forth the factual basis for the ruling as follows:

“1. That there is no dispute herein that on or about July 14, 1974 Plaintiff was involved in an automobile accident, while riding as a passenger in a vehicle owned by Francisco Belarde; that it is further stipulated between counsel that the accident was caused by the negligence of one Tomas Manuel Acosta.
“2. That at the time and place of the accident it is agreed that the tortfeasor, Acosta, was insured for bodily injury liability insurance with limits represented by Plaintiff’s counsel to be $10,000/$20,-000; that the Court has been advised by Plaintiff’s counsel that he has not proceeded against the alleged wrongdoer or his insurance company for damages arising out of the accident, notwithstanding the availability of the insurance on the alleged wrongdoer’s vehicle; that, further, Plaintiff’s counsel advises the Court that he does not intend or desire to so proceed.
“3. That it is further stipulated between counsel that at all times material to this cause the Defendant, Volkswagen Insurance Company, did have insurance coverage available to Miguel Arrieta on two separate vehicles; that each policy provided uninsured motorist coverage of $10,000/$20,000; that further, it is stipulated that Francisco Belarde, owner of the vehicle in which Plaintiff was riding, had a policy of insurance in full force and effect at the time and place of the said accident with Family Protection limits of $10,000/$20,000; that said insurance protection has been afforded to Mr. Belarde by Protective National Insurance Company-
“4. That Plaintiff’s counsel takes the position herein that he does not have an obligation to first establish the amount of his damages by suing the alleged wrongdoer, or to thereby establish an insufficiency of insurance available from the alleged wrongdoer, but that he has the right to proceed directly against the Defendants herein on the theory that their combined coverage exceeds that total coverage available from the wrongdoer; .that Defendants oppose this .theory on the grounds that Plaintiff has not at this time shown an insufficiency of insurance coverage from Acosta to satisfy his claim.
“5. The Codrt, after due consideration of the above stipulations and representations, rejects Plaintiff’s argument, to wit: That he is entitled to proceed directly against the Defendants and the uninsured motorist coverage available through their policies without first establishing an insufficiency of insurance through an action against the, alleged wrongdoer.
“6. The Court, therefore, grants the Motions to Dismiss, finding that there is not at this time sufficient basis to require the Defendants to submit to arbitration, and that Plaintiff has failed to alleged sufficient facts to establish the applicability of the Defendants’ uninsured motorist coverage.” [Emphasis supplied]

Appellant’s position is as follows: In 1973, the Florida legislature modernized and expanded uninsured motorist coverage to make such coverage applicable in a factual situation such as that presented in the case at bar. At that time, the Uninsured Motorist Statute was amended to include the concept of “underinsured motorist coverage.” Basically, such concept classifies a motor vehicle as an “uninsured motor vehicle” if there is liability insurance coverage for the offending vehicle, but the limits of liability insurance are less than the uninsured motorist' coverage limit's applicable to the'innocent injured person. The pertinent statutory section provides:

“(2) For the purpose of this [uninsured motorist] coverage, the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
* * * * * *
“(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.” Section 627.727(2), Florida. Statutes (1975).

Thus, by statutory definition, Arrieta' sustained injuries as a'result of an'“uninsured motor vehicle” because the tortfeasor’s liability limits were less than the .uninsured motorist limits applicable to the plaintiff.

Arrieta’s right to “stack” the uninsured motorist coverage upon the two vehicles owned by him is .not in issue. See Liberty Mutual Insurance Company v. Evelyn Furman, 341 So.2d 1056 (Fla.3d. DCA 1977), released February 1, 1977, and cases cited therein. ...

The appellee insurance companies take the -position that because the true purposé of uninsured motorist coverage is to enable .recovery within statutory limits of compensation which would have been available if a tortfeasor had been properly insured, see Government Employees Insurance Company v. Graff, 327 So.2d 88 (Fla.1st DCA 1976), plaintiff cannot avail herself of her uninsured motorist coverage without there first being a determination of whether the tortfeasor’s coverage is adequate to cover plaintiff’s damages. Appellee relies on the provision of the statute that uninsured motorist coverage is excess coverage. Section 627.727(1) provides:

“The coverage provided under this section shall be excess over but shall not duplicate the benefits available to an insured under any workmen’s compensation law, disability benefits law, or any similar law; under any automobile liability or automobile medical expense coverages; or from the owner- or operator of the uninsured' motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.”
sf: sj: s}s %

Thus, we are presented with a question of method rather than a question .of legal rights. We have not been referred to a case holding that uninsured motorist coverage arbitration requires a suit- against the tortfeasor. Of course, this was not likely where the courts were dealing with an uninsured tortfeasor prior to the 1973 change which included underinsured motorists as uninsured motorists under the circumstances mentioned above. We know of no case since 1973 so holding.

What are the practicalities of the two methods? If it is necessary to sue the tort-feasor first, then there must be a trial to establish negligence and the amount of damages. But both negligence and the amount of the damages have been held to be a part of the arbitration of uninsured motorist claims. See Bankers & Shippers Insurance Company v. Gonzalez, 234 So.2d 693 (Fla.3d DCA 1970). A settlement with the tortfeasor is precluded because by settling, the plaintiff may lose his uninsured motorist coverage. See Sena v. State Farm Mutual Automobile Insurance Co., 305 So.2d 243 (Fla.3d DCA 1974)., If a plaintiff may proceed upon his own uninsured motorist coverage before pursuing the tortfeasor, one of two possibilities arises: (1) The courts may hold that the plaintiff may recover in such uninsured motorist arbitration only those damages which exceed the liability coverage of the tortfeasor. (2) The courts may hold that the plaintiff may recover the full amount of his damages and the defendant insurance companies will be forced to pursue the tortfeasor and his insurance company. Although the question is not now before us, we- think that the first alternative is the m'ore likely because otherwise the plaintiff will have lost interest in the action.

The law favors arbitration of claims. See Fenster v. Makovsky, 67 So.2d 427 (Fla.1953). The principle has validity and a special public interest in view of the present state of automobile negligence litigation.

Finally, the statute as written by the legislature makes no reference to the necessity for a lawsuit prior to arbitration. The test is set out in the statute (Section 627.727(2), supra). For all purposes of the statute, a motor vehicle is “uninsured” when its liability insurer “has provided limits” less than the uninsured motorist limits applicable to the injured person. The test is clearly dependent only on “limits” of liability. We may not infer a test contrary to that set out by the legislature. See Smith v. Ryan, 39 So.2d 281 (Fla.1949); and Palm Springs General Hospital, Inc. of Hialeah v. State Farm Mutual Automobile Insurance Company, 218 So.2d 793 (Fla.3d DCA 1969).

We, therefore, hold that the trial judge erred when he held that the plaintiff had no right to arbitration of his uninsured motorist claim.

Reversed and remanded for further proceedings in accordance with the views herein expressed.

      . Pertinent portion quoted infra.


text:
    Esaw JONES, Appellant, v. STATE of Florida, Appellee.
    No. 76-187.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.

      Bennett -H. Brummer, Public Defender, and Elliot'H'. Scherker, Asst.’Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and NATHAN, J„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from a jury conviction of involuntary sexual battery with force likely to cause serious personal injury. Defendant Esaw Jones has raised several alleged errors which merit consideration by this court.

Prior to trial, the State filed a motion to take venous blood and saliva samples from the defendant. This motion was granted, although defendant objected on the grounds that the taking of blood constituted a search and the State had neither sought a search warrant nor demonstrated grounds which would have supported the issuance of a search warrant.

Although the blood sample was never actually admitted into evidence, a criminologist with the Dade County Public Safety Department testified at trial that she had examined the sample and drawn certain conclusions which .indicated that the defendant could in fact have sexually assaulted the victim.

It is virtually axiomatic at this point that such testimony would be inadmissible if the blood were taken pursuant to an illegal search. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). While the Florida Rules of Criminal Procedure authorize a judicial officer to require an accused to permit the taking of samples of his blood, such discovery is expressly subjected to constitutional limitations. Fla.R.Crim.P. 3.220(b)(1)(vii).

The United States Supreme Court delineated the parameters of these constitutional limitations in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). There the Court noted that the “interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.” 384 U.S. at 769-770, 86 S.Ct. at 1835, 16 L.Ed.2d at 919.

A review of the facts surrounding the State’s motion to obtain blood samples from the defendant herein has revealed insufficient probable cause to justify a compelled giving of blood. The State’s motion simply stated that it had “become important in the investigation to take venous blood and saliva samples for comparison and/or elimination . . . . .” There were no factual allegations whatsoever to demonstrate that the “desired evidence” would be found. Under these circumstances, we feel that the trial court should have denied the State’s motion.

Despite our finding that the taking of blood samples from the defendant in this instance was an unreasonable search and seizure, we feel that the subsequent hearing of testimony by the county criminologist constituted harmless error under the facts of this case. The victim identified the defendant on the stand and there was additional testimony by another witness which corroborated the facts as related by the victim. At the same time, the testimony concerning the blood samples was confusing and complex, and at best served only to demonstrate a remote possibility of any link between the defendant and the alleged crime. We feel that the testimony of the criminologist could only have had a negligible impact on the jury, especially in the face of an otherwise overwhelming case against the defendant. We therefore are of the opinion that the testimony relating to the blood samples was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); see also Dampier v. State, 180 So.2d 183 (Fla. 1st DCA 1965).

Defendant further argues that the trial court erred in failing to properly question prospective jurors on voir dire regarding their ability to follow and apply basic due process requirements — in particular the presumption of innocence and the State’s burden of proof — and in refusing to permit defendant’s counsel to so question prospective jurors.

The record discloses that the prospective jurors were collectively examined by the trial judge as to the presumption of innocence, burden of proof and reasonable doubt, as specifically authorized by Rule 3.300(b), Fla.R.Crim.P. The fact that the trial judge did not allow voir dire examination individually and outside the presence of the remaining prospective jurors was not error here, as this was discretionary with the trial judge and we find no abuse of that discretion. Branch v. State, 212 So.2d 29 (Fla. 2d DCA 1968). We do not feel that the trial judge abused his discretion by refusing to allow questions to the prospective jurors concerning their ability to apply particular propositions of law. See Price v. State, 295 So.2d 338 (Fla. 4th DCA 1974); see also Barker v. Randolph, 239 So.2d 110 (Fla. 1st DCA 1970); Mizell v. New Kingsley Beach, Inc., 122 So.2d 225 (Fla. 1st DCA 1960).

Defendant’s remaining points on appeal are without merit.

Affirmed.


author: CARROLL (Ret.), Associate Judge.

text:
    S & S AIR CONDITIONING COMPANY, a Florida Corporation, Appellant, v. Edwin A. CANTOR and Leo Masin, Appellees.
    No. 76-372.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Rehearing Denied April 13, 1977.

      Ronald S. Golub, Miami, for appellant.
    Arthur S. Davis, Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ'., and CHARLES CARROLL (Ret.), Associate Judge.
   CARROLL (Ret.), Associate Judge.

This appeal is by a subcontractor from a summary judgment entered in favor of the owners Edwin A. Cantor and Leo Masin, in its suit against them for foreclosure of a mechanic’s lien. The problem which the case presented, resolved in favor of the defendant owners, was whether plaintiff’s preliminary notice mailed to the nonresident owners, in care of their Miami attorney, which was given as their post office address on their deed to the property upon recordation thereof nine months earlier, was an effective service of the notice on the owners.

In the action filed by the plaintiff-appellant against the owners and the general contractor, Inland Construction Company of Florida, Inc., for foreclosure of the lien it was alleged the owners had contracted with Inland for certain construction on described property; that the contractor made a subcontract with plaintiff, under which plaintiff performed; that $3,396.00 due to plaintiff therefor remained unpaid; that the plaintiff timely gave to owners a preliminary notice as required by Chapter 713 Florida Statutes by mailing such notice to the owners c/o Arthur Davis, M-110, Biscayne Building, Miami, Florida; and that plaintiff had timely filed and recorded a claim of lien. Exhibits filed with the complaint included a copy of the preliminary notice and the original of the recorded claim of lien. Separate summonses issued for service on the owners, Cantor and Ma-sin, were returned unserved, with notation of failure to find said defendants in Dade County. The defendant owners then were served by publication. A summons issued for service on the defendant-contractor was returned unserved for similar reason, and no service was obtained on that defendant.

The owners, herein referred to as the defendants, moved to dismiss the complaint on the ground that the service of the preliminary notice to owners, in the manner alleged, was insufficient. The motion was granted, and the action was dismissed. The plaintiff appealed. This court reversed (313 So.2d 422), stating among other things: “The allegations of the complaint are such that they do not clearly show service under any of the methods provided”, and holding that the plaintiff should be given an opportunity to amend the complaint to allege valid service, before the complaint should be dismissed for failure to follow the statute in that regard.

Pursuant to an order of the circuit court, after remand, the plaintiff filed an amended complaint in which it was alleged the plaintiff had duly given to the owners the preliminary notice required by the statute, and a copy of the mailed notice was attached. The sufficiency of the allegations of the amended complaint with respect to the preliminary notice was not challenged or tested by the defendants by motion to dismiss. No motion to dismiss the amended complaint was filed.

The defendants filed an answer. Therein defendants denied in part, and disclaimed knowledge in part, as to the material allegations. As an affirmative defense the answer averred failure of the plaintiff to comply with the preliminary notice to owners requirement of Section 713.06(2)(a), Florida Statutes.

In a filed reply to said affirmative defense, the plaintiff alleged the preliminary notice they mailed to the owners had been sent to them at their post office address as shown on the public records of Dade County; that in reliance thereon as being effective, in the absence of any notification to the contrary, plaintiff had proceeded to perform its subcontract; that plaintiff’s notice to owners and the preliminary notices sent by a number of other subcontractors similarly addressed to the owners in care of Davis had not been rejected or returned; that Davis was the owners’ attorney, and had been clothed by them with apparent authority; and that the defendants were estopped to deny that the preliminary notice which the plaintiff mailed to them in care of Davis was an effective service thereof on the defendant owners.

The defendants filed a motion for summary judgment, asserting, as grounds therefor, that there was an absence of genuine triable issues of fact and that defendants were entitled to judgment as a matter of law.

In support of the motion for summary judgment there was filed an affidavit of the defendants’ Miami attorney, Arthur Davis, stating he was not a partner, agent or associate of the defendants, and was not authorized to receive the plaintiff’s notice to the defendants. Also there was filed an affidavit of the two owners stating that the subcontractor’s notice was not served on them, and that Davis was not their agent for any purpose except to defend them against the actions brought against them relating to the property involved. Masin filed an affidavit stating he had a residence in Miami Beach, and was listed in the local telephone directory. Also in evidence was the deposition of Davis, taken by the plaintiff, which disclosed facts referred to later in this opinion.

On the hearing on the motion for summary judgment, the evidence submitted in support of and in opposition to the motion, including the deposition of Davis, showed the following facts. Cantor resided in New Jersey. Masin resided part-time in New Jersey and part-time in Miami Beach, Florida. Cantor and Masin were in business together in New Jersey. They had no business office in Florida. Davis acted as attorney for the defendants when they purchased the land involved. The office of Davis in Miami was M-110, Biscayne Building. On the face of the deed which was recorded upon acquisition of the land, in the space provided for the address of the grantees, it was stated that the grantees’ post office address was c/o Arthur S. Davis, giving his said office address. The fact of the conveyance, with said stated post office address of the grantees, was relayed by the clerk of the circuit court to the tax assessor and was used in subsequent taxation of the property, with tax bill being sent to the owners in care of Davis, and by the latter, forwarded to the owners. The owners did not file a notice of commencement of construction on the land, as required of them by Section 713.13 Florida Statutes (1975), on which they might have given the same address as they gave on the deed or some other local or out-of-state address.

Using the post office address of the owners as they had supplied it in their recorded deed to the property involved, by mailing the notice to the defendants in care of their attorney Davis, and having received a receipt for the registered mail by which the notice was sent, the plaintiff-subcontractor made a substantial change of position in reliance on the effectiveness thereof. Davis testified he did not return the notice, and did not keep it, and that he “probably” mailed the item to the owners in New Jersey. Under the circumstances, whether or not the notice mailed to the owners in care of Davis, after being received and receipted for was sent on by him to the owners, was not a matter of concern to the plaintiff-subcontractor. The preliminary notices of five other subcontractors were served on the owners by mail in that manner, and were similarly treated and handled by Davis as a conduit.

We find merit in the contentions of the appellant that in giving preliminary notice to the owners by mail, the plaintiff-subcontractor was entitled to use the post office address of defendants which had been supplied by them upon recording their deed, and that on the facts disclosed the defendant-owners were estopped to deny the effectiveness of the plaintiff’s preliminary notice as mailed and addressed to them. It appears that the elements of estoppel were present. See Steen v. Scott, 144 Fla. 702, 198 So. 489, 493 (1940); Davis v. Evans, 132 So.2d 476, 481 (Fla. 1st DCA 1961); Richards v. Dodge, 150 So.2d 477, 481 (Fla.2d DCA 1963); Quality Shell Homes & Supply Co. v. Roley, 186 So.2d 837, 841 (Fla. 1st DCA 1966).

The appellees cite Continental Home Parks, Inc. v. Golden Triangle Asphalt Paving Co., 291 So.2d 49 (Fla.2d DCA 1974), in support of their contention that the service of the preliminary notice on the defendants by mailing it to them in care of Davis, was insufficient under the statute to effect a service thereof on the owners. In that case, a subcontractor attempted to serve such a notice under a different subsection of Section 713.18, which provided as an alternate method of service, actual delivery of the notice to the owner, specifying: “if a corporation, to an officer, director, managing agent, or business agent thereof”. In that case it was held that delivery to an employee of the corporation who was not an officer, director or its managing or business agent was not a valid actual delivery service under the statute.

The appellant contends, and we agree, that the Continental case is not applicable here. In Continental, the actual delivery service attempted on the corporation was by delivering the notice to a person other than the person or persons to whom the statute stated it was to be delivered. In the instant case, under the subsection (c) for service of such a notice on the owner by mailing, the notice was mailed to the owners, Cantor and Masin, “c/o Arthur S. Davis, M-110 Biscayne Bldg., Miami, Florida” as being the address of the owners. The position of the appellees that the notice was sent to Davis rather than to the owners is incorrect. In that posture of the matter, the contention of the appellees that they had not designated Davis as a person upon whom such notice could be served, instead of upon them, is irrelevant.

Additionally, the contention of the appellant that Davis was clothed with apparent authority to act for the owners, at the least as a conduit of correspondence mailed to the owners, is not without merit, in view of his role in the matter as referred to above. See Fidelity & Casualty Co. of New York v. D. N. Morrison Const. Co., 116 Fla. 66, 156 So. 385 (1934); Thomkin Corp. v. Miller, 156 Fla. 388, 24 So.2d 48 (1946); Parsley Brothers Construction Co. v. Humphrey, 136 So.2d 257, 259 (Fla.2d DCA 1962).

For ■ the reasons stated the' summary judgment is reversed, and the cause is remanded for further proceedings not inconsistent herewith.

      . § 695.21 Fla.Stat. (1975), provides that upon the recordation of such an instrument it is made the duty of the clerk of the circuit court to.obtain “the correct post-office address of the grantee or grantees named in such instrument”, and it is made “the duty of the person presenting such instrument for recordation to furnish such information to said official”. § 695.22 Fla.Stat. (1975), requires the clerk to furnish to the county appraiser a daily schedule of such recorded instruments, setting forth the names and addresses of the grantees and the property descriptions.

      . In this connection, in addition to having acted as the attorney for the owners upon their purchase of the property, Davis had acted as their attorney in a matter incident to the construction on the property. Before the owners entered into the construction contract they submitted the contract to Davis for his examination (and presumably for his approval thereof).


text:
    Alan A. LIPTON, Appellant, v. SOUTHEAST FIRST NATIONAL BANK OF MIAMI, Appellee.
    No. 76-390.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Quinton, Leib & Lummus and James D. Adams, Miami, for appellant.
    Friedman. & Britton and J. T. Haley, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by one of the defendants below from an adverse summary judgment. The appellee bank filed, an . action against the appellant and Francesca. Lipton and Francesca International, Inc.. Thereby the plaintiff sought recovery against the corporation on a promissory note alleged to have been made and delivered to it by the corporation; and to recover from Alan A. Lipton and Francesca Lipton on a written guarantee thereof alleged to have been executed and delivered by them to the bank; and on a promissory note alleged to have been made and delivered to the bank by Alan Lipton and Francesca Lipton.

The answers of the defendants denied the allegations of the complaint, but did not contain any specific denial of the signatures' on the instruments sued upon. Section 673.307(1) Florida Statutes 1975, provides: “Unless specifically denied in the pleadings each signature on an instrument is admitted”.'

On motion of the plaintiff bank for summary judgment, supported by. the instruments and an affidavit showing the bank to be the holder of the instruments and showing the amounts in default, and an affidavit as to reasonable attorney’s fees, summary judgment was entered in favor of the plaintiff against the defendants as sought in the complaint.

Appealing therefrom Alan Lipton contends the evidence presented by the plaintiff in support of the motion for summary judgment did not establish that Alan Lipton signed the guarantee and the promissory note upon which his name appeared as the maker, and on the basis of which recovery was sought against him. That contention is without merit. No extended discussion is necessary. Since the defensive pleadings did not specifically deny Lipton’s signatures on the instruments, his signatures thereon were admitted by virtue of the above cited and quoted statutory provision, and no issue was presented thereon.

Affirmed.


author: PER CURIAM. NATHAN, Judge,

text:
    W. B. and D. B., juveniles, Appellants, v. The STATE of Florida, Appellee.
    No. 76-544.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Rehearing Denied April 13, 1977.
    Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by two juveniles (brothers), from delinquency orders. The petition charging W. B. with delinquency alleged, as grounds, disorderly conduct and obstructing a police officer in the performance of his duty in making arrest therefor. The petition against D.B. alleged assault on a police officer, and resisting arrest with threat of violence to a police officer in the performance of the arrest of said defendant for the assault.

It appears the incident involving D.B. occurred at the same place, after the arrest of W.B. The mother of the juveniles arrived on the scene after the arrest of W.B. and at some time during the incident involving D.B. She filed a complaint of police brutality, and later made a written statement with reference to the matter. A hearing was undertaken on her complaint, before the Internal Review Board of the Public Safety Department, at which the arresting officers made statements. The outcome of that hearing was not disclosed.

On this appeal there is no contention that the evidence produced at the hearing on the delinquency petitions was not sufficient to sustain the adjudications of delinquency. Appellants contend the court committed reversible error by denying their motion for pre-trial production of the statements of the officers before the Board of Review.

Defendants filed two motions for production of evidence. The first was filed under Fla.R.Crim.P. 3.220(a)(2), requiring the prosecutor to disclose to defense counsel “any material information within the States’ possession or control which tends to negate the guilt of the accused as to the offense charged”. The State responded with certain information, including the statement made by the defendants’ mother, but not including the statements of the officers before the Review Board. According to the record, such statements were not produced because the State did not view them as material information tending to negate the guilt of the defendants. There was no showing made to the contrary. We find no error in that regard. See United States v. Evanchick, 413 F.2d 950, 953 (2nd Cir. 1969); United States v. Gonzalez, 466 F.2d 1286, 1288 (5th Cir. 1972).

The defendants took the deposition of the arresting officers, on pretrial discovery. They also took the deposition of a hearing officer before whom the arresting officers had appeared on the hearing before the Review Board. During the deposition of the hearing officer, he was asked to produce a transcript of the statements or testimony given by the arresting officers before the Review Board. He refused.

Defendants, by a second motion sought an order requiring him to do so, or for the production thereof otherwise. That motion, filed under subsection (a)(1)(h) of said rule, was heard on the day before the hearing on the delinquency petitions. The court denied the motion.

The appellants contend that ruling of the court was error for which the adjudications of delinquency should be reversed and a new trial granted. We cannot agree.

On motion of a party or person from whom the discovery is sought, or for good cause shown, the court may control and limit discovery in a number of listed respects, including “that certain matters not be inquired into”. Fla.R.Civ.P. 1.280(c).

Here the defendants had the benefit of direct discovery from the arresting officers, as well as the opportunity to cross examine them when the officers testified at the delinquency hearing. The inquiry before the Review Board would call for testimony of the officers relating to their actions in making and following arrests, whereas their testimony at the delinquency hearing would relate to the conduct of the defendants for which they were arrested, as alleged in the delinquency petitions. The purpose or advantage which the defendants claimed would be gained by production of the officers’ Review Board testimony was for it to be used at trial to show a difference, if any should exist, between their statements before the Board and their statements on discovery depositions or when they should testify at trial. In view of the above stated circumstances, and the absence here of a contention that the evidence of guilt of the defendants was not supported by the evidence, we hold the challenged ruling of the trial court was not an abuse of discretion, and was not such as to require the granting of a new trial.

Affirmed.

NATHAN, Judge,

dissenting.

I must respectfully dissent. In my opinion, this case should be remanded and the trial judge directed to make an in camera inspection of the disputed statements to determine whether they reflect upon the question of delinquency. See U. S. v. Agurs, 427 U.S. 246, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Briskin v. State, 341 So.2d 780 (Fla.3d DCA 1976), opinion filed December 20, 1976.


text:
    Roberto LOPEZ, Jr., a minor, by and through his father and next friend, Roberto Lopez and Roberto Lopez, Individually, Appellants, v. Francisco LA FUENTE and Josefa La Fuente, his wife, Appellees.
    No. 76-567.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Levenstein, Burke & Associates, and Linda Dakis, Miami, for appellants.
    Gabriel Diaz-Bergnes, Miami, for appel-lees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

This case is an action for negligence against certain non-residents of Florida. The trial court dismissed the complaint for lack of jurisdiction over the person and later denied the plaintiff leave to amend. The plaintiff appeals.

There are two issues raised by this appeal'. The first is whether a complaint alleging negligence in the maintenance of real property owned or otherwise lawfully possessed in this state by a non-resident defendant pleads sufficient facts which, if true, would give the court personal jurisdiction over the defendant. If not, a second issue is presented as to whether the plaintiff should be given leave to amend his complaint to properly plead sufficient jurisdictional facts.

The plaintiff-appellant, Roberto Lopez, Jr., individually and through his father, sued the defendant-appellees, Francisco and Josefa La Fuente, in the Circuit Court of Dade County. The complaint sounded in negligence and alleged that the minor plaintiff fell and sustained injuries as an invitee of an apartment building, which property was “owned or controlled, or erected, or developed or managed, or maintained, or was the lessee of, or operated by the two non-resident defendants.

The defendants moved to dismiss the complaint on the ground that they were not doing business in Florida and were not amenable to process under the statutes employed by the plaintiff for accomplishing that purpose. Attached to the motion was an affidavit signed by the defendants stating that they sold the property in question on a date subsequent to the plaintiffs injury but prior to the filing of the plaintiff’s complaint. The trial court dismissed the complaint with prejudice. The plaintiff then filed a motion to set aside the order of dismissal on the ground that, among other things, the order did not give the plaintiff leave to amend his complaint. This motion was denied.

The trial court was clearly correct in dismissing the complaint for lack of jurisdiction over the person of the non-resident defendants. The complaint merely alleges that the plaintiff was injured on property owned or otherwise lawfully possessed by two non-resident defendants due to the defendants’ negligence. “The mere ownership and maintenance of real property [by a non-resident] does not constitute a ‘business’ or a ‘business venture’ within the meaning of § 47.16(1) [now 48.181(1)], Florida Statutes, F.S.A.” sufficient to acquire personal jurisdiction through substituted service of process over the non-resident. James v. Kush, 157 So.2d 203, 205 (Fla.2d DCA 1963). And where a complaint fails to allege sufficient facts to invoke personal jurisdiction over the defendant, the complaint may be properly dismissed. O’Connell v. Loach, 194 So.2d 700 (Fla.2d DCA 1967).

The plaintiffs contend that the defendants are amenable to suit by substituted service of process under Section 48.181(1), Florida Statutes (1975), because the accident in this case happened in an apartment building which the defendants operated for profit as lessors. The simple answer to that argument is that such facts are not alleged in the complaint. If they had been, a different issue would be presented.

The plaintiff, however, should have been given leave to amend his complaint to properly plead facts which, if true, would invoke personal jurisdiction over the nonresident defendants. Elmex Corp. v. Atlantic Federal Savings and Loan Assn. of Ft. Lauderdale, 325 So.2d 58 (Fla.4th DCA 1976). Fla.R.Civ.P. 1.190(a) provides for liberal amendments to pleadings and the Florida courts have long followed the, policy of allowing such amendments absent some abuse of the privilege, especially as to a first amendment where no responsive pleading has been filed. See e. g. Romish v. Albo, 291 So.2d 24 (Fla.3d DCA 1974); Turner v. Trade-Mor, Inc., 252 So.2d 383 (Fla.4th DCA 1971); Petterson v. Concrete Construction, Inc., 202 So.2d 191, 197 (Fla.4th DCA 1967); Hunter v. Fairmount House, Inc., 191 So.2d 92 (Fla.3d DCA 1966); Richards v. West, 110 So.2d 698 (Fla.1st DCA 1959); Fouts v. Margules, 98 So.2d 394 (Fla.3d DCA 1957).

The fact that the defendants may have divested themselves of the subject property prior to the filing of the complaint herein is of no moment since the crucial question is whether the defendants were amenable to suit in this state under Section 48.181(1) Florida Statutes (1975), at the time the cause of action arose. Masters, Inc. v. Corley, 222 So.2d 465 (Fla.3d DCA 1969). We hold that the plaintiff should be given leave to amend his complaint to properly allege such a cause of action against the defendants. O’Connell v. Loach, 194 So.2d 700 (Fla.2d DCA 1967).

The order dismissing the plaintiff’s complaint is affirmed as to the dismissal and reversed to the extent that the dismissal was with prejudice. The plaintiff should be given leave to amend his complaint.

Affirmed in part; reversed in part.


text:
    Lawrence HAYES, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 76-605.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Rehearing Denied April 6, 1977.
    Schweikert & Birnesser, Hollywood, for appellant.
    Stuart L. Simon, County Atty., and Stephen P. Lee, Asst., County Atty., for appel-lee.
    Before HENDRY, C. J., and BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958); O’Brien v. Food Fair Stores, North Dade, Inc., 155 So.2d 836 (Fla.3d DCA 1963); Manís v. Miller, 327 So.2d 117 (Fla.2d DCA 1976).


text:
    Bobby Marion FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. 76-778.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.

      John J. Quinn, Key West, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This appeal questions the correctness of a trial judge’s ruling in a criminal prosecution relating to the delivery of contraband, contrary to statute.

The appellant has preserved three points on appeal: First, whether the trial court erred in refusing to require a law enforcement agent to produce his notes, from which he refreshed his memory. We find no error in this ruling, because it was clear that the agent had refreshed his memory the night before he testified and did not have the notes in the courtroom. Therefore, no error has been made to appear in this ruling. Williams v. State, 208 So.2d 628 (Fla.3rd D.C.A. 1968); Allen v. State, 243 So.2d 448 (Fla.1st D.C.A. 1971); Marshall v. State, 321 So.2d 114 (Fla.1st D.C.A. 1975). Secondly, it is urged that the trial judge erred in limiting cross-examination. The record does not clearly show that the trial judge did any such thing. But, even if it did appear that he had limited cross-examination, it would have been within his discretion and, therefore, no error has been made to appear in this regard. Thomas v. State, 249 So.2d 510 (Fla.3rd D.C.A. 1971), Smith v. State, 305 So.2d 247 (Fla.3rd D.C.A. 1974). Lastly, that the trial court erred in denying a motion for mistrial made during the closing argument on the part of the State, allegedly because of improper comment. If the comment was improper, which we do not here find, it was justified in response to remarks by defense counsel, and, therefore, no error has been- made to appear, in this regard. Wingate v. State, 232 So.2d 44 (Fla.3rd D.C.A. 1970); Gray v. State, 296 So.2d 612 (Fla.3rd D.C.A. 1974); Lawson v. State, 304 So.2d 522 (Fla.3rd D.C.A. 1974).

The verdict, adjudication of guilt, and sentence here under review be and the same are hereby affirmed.

Affirmed.