author: OWEN, Judge. DOWNEY, Judge

text:
    Paul WOOD, Petitioner, v. DEPARTMENT OF TRANSPORTATION of the State of Florida, BUREAU OF AVIATION, DIVISION OF MASS TRANSIT OPERATION, Respondent.
    No. 75-736.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
    Ray Sandstrom and Fred Haddad of Sandstrom & Hodge, Fort Lauderdale, for petitioner.
    George L. Waas, Winifred Sheridan Smallwood and Geoffrey B. Dobson, Tallahassee, for respondent.
   OWEN, Judge.

Petitioner seeks certiorari review of a circuit court decision affirming an administrative order revoking petitioner’s license to operate a heliport facility.

In July 1973 petitioner’s heliport operating license was not renewed. He was informed that this was because of the failure of the facility to meet minimum safety standards as prescribed in paragraph 1 of Ch. 14-60.07, Florida Administrative Code. In particular, petitioner was told that his helipad did not meet the side-slope requirements for approval. Petitioner then sought a writ of certiorari in the circuit court to review the administrative decision not to renew his license, whereupon petitioner and respondent entered into a stipulation providing as follows:

“1. respondent would renew the license but would not be prejudiced by renewal in any revocation hearing of that license;
2. respondent, upon notice, would hold a revocation hearing;
3. petitioner would withdraw his writ.”

Petitioner’s license was renewed and shortly thereafter he was informed by respondent by letter of the following specific violations uncovered in the license inspection of his heliport:

“1. Single strand rope fence was broken in places.
2. No wind sock or indicator on helipad.
3. No fire extinguishers evident.
4. Advertising sign indicates ‘charter’.”

Shortly thereafter respondent informed petitioner’s attorney that an administrative hearing would be held regarding the license issued under the stipulation, and in due course petitioner received written notice of hearing stating that the purpose of the hearing was “to inquire into all matters concerning the licensing of the 17th Street Causeway Heliport, 1701 Southeast 17th Street, Fort Lauderdale, Florida.” (e.s.). Petitioner promptly, and thereafter consistently throughout the proceedings, raised the objection that this notice totally failed to inform him of the nature and subject matter of the hearing in such fashion as would allow him his right to present a defense. As a result of the hearing, the examiner entered an order recommending revocation of petitioner’s heliport license based upon the following findings of fact:

“Upon basis of the evidence presented, the testimony of the parties and upon the personal inspection of the examiner, it is the finding that the said heliport or hel-istop fails to meet the minimum standards of safety as delineated by Ch. 14-160, Rules of the Florida Department of Transportation, for the reason that natural growth and the encroachment of power lines and other structures together with increased human traffic by land and air have made the takeoff and landing from the 17th Street Causeway Heliport hazardous to persons and property on land and in the air.” (e.s.)

The examiner’s recommendation was adopted in the final agency order and upon certiorari review in the circuit court the order was affirmed.

We are of the view that the notice of hearing failed to meet minimum due process requirements in that it did not adequately detail the reasons or grounds upon which respondent would seek termination or revocation of petitioner’s license. See, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). It is clear from the record that petitioner did not and could not know with any reasonable degree of certainty the nature of any alleged violations or grounds for revocation of his license until after the respondent had offered its evidence at the hearing.

While we might surmise that by virtue of the grounds cited as the basis for the earlier refusal to renew his license petitioner and his attorney may have had some insight as to the grounds upon which respondent would seek revocation of the license, we think that this cannot substitute for reasonable notice of the charges against which petitioner was ultimately expected to defend.

The decision of the circuit court is reversed and this cause remanded with directions that the agency order be quashed and petitioner afforded a new hearing upon due and proper notice.

Reversed and remanded.

WALDEN, C. J., concurs.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge

(dissenting).

The Department of Transportation of the State of Florida, Bureau of Aviation, Division of Mass Transit Operation, revoked Wood’s license to operate a heliport. The circuit court denied Wood’s petition for writ of certiorari, and Wood appealed to this court.

The Department moved to dismiss the appeal on the ground that the proper method of review of the circuit court’s judgment in a certiorari proceeding is by a petition for writ of certiorari. This court on June 12, 1975, denied the motion to dismiss, but it directed that the matter proceed as a petition for writ of certiorari pursuant to Rule 4.5(c), F.A.R. This was a mistake on our part in my opinion, since the matter was properly here as a plenary appeal. Jones v. City of Hialeah, Fla.App.1974, 294 So.2d 686, and cases cited therein. Accordingly, I would vacate this court’s order of June 12th and treat this matter as a full appeal.

The only real question presented to this court is whether the circuit court’s conclusion that Wood received adequate notice of the nature of the revocation proceedings is supported by the record filed in that court. In my judgment the record filed there is adequate to support the finding that Wood was fully apprised of the matters to be considered at the hearing on his license revocation.

In January 1973, the Department, sent Wood a letter directing Wood’s attention to alleged serious violations of Chapter 14-60.07 of the Florida Administrative Code pertaining to heliports. In pertinent part the letter stated:

“The pad is surrounded by 25 to 40 foot buildings, trees, and utility poles. Your departure path is between two buildings 90 feet apart situated within 100 feet of the take off point. In short, you are offering helicopter rides to the public from a heliport which fails to meet our recently revised safety and minimum standards criteria as presented in paragraph 1 of Chapter 14-60.07 of the Florida Administrative Code.”

Several months later when Wood’s license came up for renewal, the Department refused to renew ’ it. Wood thereupon sought judicial review of that refusal. To avoid litigation, the parties stipulated that Wood’s license would be renewed but a hearing would be held to determine if it should be revoked. Thereafter, Wood was again notified of some additional specific violations of the Administrative Code pertaining to heliports. Finally, Wood was notified in writing of the time and place of a hearing “to inquire into all matters concerning the licensing of the 17th Street Causeway Heliport . . . .”

Woods contends that § 330.32, F.S.1973, requires that the notice of hearing involved herein set forth the grounds under consideration for revocation. I find no such requirement in that section or any other section of Chapter 330. In proceedings such as those described in § 330.30, F.S., technical nicety and formal exactness are not the rule. As stated in Florida Board of Massage v. Thrall, Fla.App.1964, 164 So.2d 20:

“ * * charges before boards, such as the state board of dental examiners, need not be stated with the technical nicety or formal exactness required of pleadings in the courts, nor are the proceedings before the board required to conform in every respect to that controlling in strictly judicial proceedings, (citation omitted) * * And in such proceedings it is sufficient if the accused is informed with reasonable certainty of the nature and cause of the accusation against him, has reasonable opportunity to defend against attempted proof of such charges, and the proceedings are conducted in a fair and impartial manner, free from any just suspicion of prejudice, unfairness, fraud, or oppression.’ ” 164 So.2d at 22.

The circuit court reviewed the due process question on petition for certiorari and found the proceedings met the constitutional mandate. In our review of that decision we do not look for error in the proceedings before the Department of Transportation hearing examiner; that the circuit court did. “The extent of our review on this appeal is to decide whether, upon the points properly raised, the circuit court applied the applicable law and acted in accordance with established procedure.” Morris v. City of Hialeah, Fla.App.1962, 140 So.2d 615; Ammerman v. The Florida Board of Pharmacy, Fla.App. 1965, 174 So.2d 425. My review of the record leads me to conclude that the circuit court applied the applicable law and followed established procedure.

Accordingly, I would affirm the judgment appealed from.


source: Caselaw Access Project

author: WALDEN, Chief Judge.

license: Public Domain

text:
    James E. BELL, Appellant, v. BOYS, INC., a Florida Corporation, Appellee.
    No. 75-1225.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
    John E. Prewitt, of Oughterson, Ough-terson & Prewitt, Stuart, for appellant.
    Frederick E. Hollingsworth, of Sales & Christiansen, Palm Beach, for appellee.
   WALDEN, Chief Judge.

Defendant property owner contracted with Seagate Construction Co. to construct certain improvements. Seagate contracted with plaintiff to supply certain labor services and materials, but Seagate abandoned the job before completion, without disbursing $6,701.11 due to plaintiff. ■ Plaintiff brought suit against defendant owner. The defendant made a motion to dismiss the complaint. The trial court denied it. We reverse.

The complaint failed to allege the existence of any notice to owner by Fla. Stat. 713.06 (1973). We recognize that untimely notice may not preclude a plaintiff from obtaining either statutory lien or an equitable lien on undisbursed funds (or improperly disbursed funds); Crane Co. v. Fine, 221 So.2d 145 (Fla.1969); Westinghouse Electric Supply Co. v. Midway Shopping Mall, Inc., 277 So.2d 809 (Fla.App. 3rd, 1973); 1800 N. Federal Corp. v. Westinghouse Electric Supply Co., 224 So. 2d 384 (Fla.App. 4th 1969); and that no notice at all may not deprive a plaintiff of all hope of recovery, Crane v. Fine, supra:

“[N]o notice to the owner is necessary for a lienor to participate in the final payment, since the contractor is required to list all unpaid lienors in his final-payment affidavit, whether or not such notice has been given, § 84.061 (3) (d) 2, Fla.Stat. 1965; and, as noted above, if a progress-payment affidavit from the contractor is required by the owner, a lienor listed therein may participate even though he gave no notice, provided a balance remains after the payment of lienors who have given notice.” (Emphasis supplied.) Id. at 152.

However, for the plaintiff who alleges no notice to obtain an equitable claim against undisbursed or improperly disbursed funds there would have to be allegations as to the existence of such funds. This plaintiff has not alleged such facts, and the complaint is fatally defective in this regard.

Plaintiff urges the complaint is sufficient because it alleges that defendant failed to file a notice of commencement prior to commencing to improve the property. Plaintiff cites to Westinghouse Electric Supply Co. v. Midway Shopping Mall, Inc., supra. In the Westinghouse case the Third District held that the allegations of the impropriety of payment of certain monies to a general contractor before the filing of a notice of commencement (Fla. Stat. § 713.06(3) (a) (1973) created an issue of fact sufficient to withstand a summary judgment. The instant complaint makes no allegation of any improper payments to the contractor.

Defendant’s motion to dismiss the complaint should be granted, without prejudice to plaintiff’s right to amend its complaint.

Reversed and remanded with directions.

DOWNEY, J., and McCAULEY, JAMES A., Associate Judge, concur.


author: PER CURIAM.

text:
    CANADIAN UNIVERSAL INSURANCE COMPANY, Appellant, v. EMPLOYERS SURPLUS LINES INSURANCE COMPANY, Appellee.
    No. 74-1094.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.

      Wicker, Smith, Pyszka, Blomqvist & Davant, Smathers & Thompson and David S. Batcheller, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by Canadian Universal Insurance Company, .defendant and primary insurer, seeking reversal of a final judgment on the cross-claim of defendant excess insurer in the amount of $38,751.66, representing the excess insurer’s attorney’s fees and costs in defending a bad faith action brought by the plaintiffs against both insurers.

As a result of their infant daughter sustaining severe brain damage due to the negligent handling of her delivery, plaintiffs filed suit against James Archer Smith Hospital, Canadian Universal Insurance Company as primary insurer up to $100,000, and Employers Surplus Lines Insurance Company as excess insurer from $100,000 to $250,000. Although Employers did not engage actively in the negligence litigation, it did urge Canadian to accept plaintiffs’ offer to settle within the combined limits of the two policies (i.e. $250,000). Canadian did not settle and the jury returned a verdict in the aggregate sum of $826,490 in favor of the plaintiffs and against the hospital. Canadian and Employers paid their policy limits leaving a $576,400 excess. Plaintiffs then filed against both insurance companies a second action seeking to recover the excess on the theory that Canadian and Employers acted in bad faith in refusing to settle the case within their combined policy limits when they had ample opportunity to do so and when the case was one of likely and probable liability with damages greatly exceeding the limits of both policies. Both defendant insurers denied liability and Employers filed a cross-claim for indemnity against Canadian for its exercise of bad faith toward Employers by preventing a settlement within the combined policy limits. This cause was tried before a jury which found (1) Canadian exercised bad faith towards the plaintiffs and towards Employers, and (2) Employers did not act in bad faith towards the plaintiffs. Thereupon, the trial judge entered judgment for $576,000 in favor of plaintiffs and against Canadian and a final judgment for Employers on its cross-claim against Canadian for $32,500 in attorney’s fees and $6,251.66 in costs. Canadian appeals this judgment on Employers’ cross-claim. We affirm.

The general rule of law is that where the wrongful act of the defendant has involved the claimant in litigation with others or placed him (or her) in such relation with others as makes it necessary to incur expenses to protect his interest, such costs and expenses, including attorney’s fees, should be treated as the legal consequences of the original wrongful act and may be recovered as damages. See Milohnich v. First National Bank of Miami Springs, Fla.App.1969, 224 So.2d 759 and 9A Fla.Jur. Damages § 80 (1972); 22 Am.Jur.2d Damages § 166 (1965); Annot., 45 A.L.R.2d 1183 (1956).

The jury found that Canadian by refusing to settle within the combined policy limits committed a wrongful act toward Employers. The jury also determined that Employers was not guilty of any bad faith conduct toward the plaintiffs. Thus, as a result of Canadian’s bad faith, Employers became involved in the instant litigation and we only can conclude that the costs and attorney’s fees incurred in defending this bad faith action were properly awarded as elements of damages on Employers’ cross-claim.

Affirmed.


author: McCORD, Acting Chief Judge. •

text:
    John BOWEN d/b/a Arlington Airko Air Conditioning, Heating & Electric Company, Appellant, v. AMERICAN ARLINGTON BANK, a Florida Corporation, Appellee.
    No. W-72.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.

      Ernest D. Jackson, Sr., of Jackson & Micks, Jacksonville, for appellant.
    Richard C. Stoddard of Bryant, Dickens, Rumph, Franson & Miller, Jacksonville, for appellee.
   McCORD, Acting Chief Judge. •

This is an appeal from a summary final judgment in favor of appellee American Arlington Bank on its mortgage foreclosure against appellant and others.

Appellant was named as a defendant in appellee’s foreclosure complaint, he being an alleged mechanic’s lien holder. The complaint alleges, and it is undisputed, that on January 7, 1972, the owner of the property involved in this suit executed a note to appellee secured by mortgage on the property in the amount of $125,000; that the mortgage was recorded on January 11, 1972. Subsequently, on July 18, 1972, appellee and the owner entered into a modification agreement which increased the amount of the indebtedness under the note and mortgage to $175,000. With his answer, appellant filed a counterclaim in which he claimed a lien on the property in the amount of $7,800 for the alleged balance due on a contract for installation of electrical and air conditioning systems in the building constructed thereon, the lien having been recorded in the public records of Duval County on June 6, 1972. While appellant’s answer admits the paragraph of appellee’s complaint which alleges that its mortgage lien is superior to appellant’s claim, the counterclaim affirmatively alleges that appellant’s lien is superior to ap-pellee’s mortgage lien. It is therefore apparent on the face of the pleadings that appellant’s “admission” contained in his answer was an error. In the interest of justice, he should not be held to such “admission.”

The record shows that appellant filed an action to enforce his alleged lien within one year from the recording thereof and that such suit was consolidated with the present action by order of the court entered on March 13, 1974. It does not appear that there has yet been an adjudication of the validity of appellant’s lien in that suit. Appellee contends in its brief that appellant’s lien shows on its face that it was not filed within 90 days after the final furnishing of the labor or services or materials by the lienor as the statute (§ 713.08(5), F.S.) requires and that it is therefore void. Appellant’s claim of lien does not appear in the record filed with this court and there is nothing in the record to show that ap-pellee’s contention was brought to the attention of the court below. Appellee has filed a certified copy of the claim of lien as an appendix in its brief to support its argument made here. While the claim of lien ds not properly a part of the record before us, we will comment that appellee’s argument is based upon an apparent error in the claim of lien which was filed on June 6, 1972. The certified copy of the claim of lien shows the first labor, services or materials to have been furnished on December 15, 1971, and the last to have been furnished on May-20, 1971 — an obvious error in dates. If the latter date was 1972, the claim of lien was filed within 90 days thereafter.

If appellant’s claim of lien is valid, it is inferior to appellee’s $125,000 note secured by mortgage but is superior to the $50,000 increase in the indebtedness which was provided for in the modification agreement recorded subsequent to the recording of appellant’s lien. There are material issues of fact as to the validity of appellant’s claim of lien which do not appear to have been adjudicated by the trial court on appellee’s motion for summary judgment.

Reversed and remanded for appropriate proceedings consistent herewith.

SMITH and MILLS, JJ., concur.


author: SMITH, Judge.

text:
    Thomas Malcolm LOWE, Appellant, v. STATE of Florida, Appellee.
    Nos. Y-138, Y-455.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

Appellant was convicted of breaking and entering an automobile with intent to commit larceny, in violation of § 810.051, F.S. 1973. He was simultaneously acquitted of charges in a second count that, in violation of § 814.03, F.S.1973, he willfully and without authority took possession of and took away the same automobile which belonged to another. Error is assigned in the trial court’s refusal “to give the jury Appellant’s requested instruction on attempt to commit the offenses charged” and appellate counsel for appellant argues that the trial court offended Brown v. State, 206 So.2d 377 (Fla.1968) in that ruling. We do not reach the question of whether, in view of other jury charges given, the failure to charge on attempt was harmless error [Spigner v. State, 304 So.2d 496 (Fla.App. 1st, 1974)] because this record contains no indication that trial counsel requested a charge on the offense of attempt to commit the crime of which appellant was convicted. For aught that appears, the request was for a charge on attempt to commit the offense of which appellant was acquitted. We will not determine substantial questions of law on so ambiguous a record. We have likewise considered appellant’s other points on appeal.

Affirmed.

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


text:
    DIMENSION FOUR INTERNATIONAL, LTD., Appellant, v. HUSKEY REALTY, Appellee.
    No. 75-13.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
    Rehearing Denied Feb. 3, 1976.
    Michael H. Salmon of Katz & Salmon, Miami Beach, for appellant.
    William B. Wilson of Maguire, Voorhis & Wells, Orlando, for appellee.
   PER CURIAM.

Upon review of the record on appeal and after consideration of the briefs and oral arguments of counsel for the respective parties, we determine that the terms of the written brokerage agreement entered into between Dimension Four International, Ltd., and appellee, Huskey Realty, are clear and unambiguous. Therefore, the trial court erred in admitting parol evidence varying the express terms of said agreement.

Accordingly, the final judgment in favor of appellee, Huskey Realty, is vacated and set aside, and the cause is remanded for entry of a final judgment in favor of appellant, Dimension Four International, Ltd.

Reversed and remanded, with directions:

CROSS, MAGER and DOWNEY, JJ., concur.


author: HENDRY, Judge.

text:
    REGAN INSURANCE AGENCY, Appellant, v. KRAUSE & SONS, INC., a Florida Corporation, and Gerald W. Krause, an Individual, Appellees. REGAN INSURANCE AGENCY, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellee. KRAUSE & SONS, INC., a Florida Corporation, and Gerald W. Krause, an Individual, Appellants, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, etc., Appellees. KRAUSE & SONS, INC., a Florida Corporation, et al., Appellants, v. Morris SPANN, Appellee. KRAUSE & SONS, INC., a Florida Corporation, et al., Appellant, v. Carlton E. REGAN, Appellee.
    Nos. 75-36, 75-89 and 75-185 to 75-187.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
    Rehearing Denied Feb. 4, 1976.
    Virgin & Whittle and Gary E. Garbis, Miami, for Regan Ins. Agency.
    Brumer, Moss, Cohen & Rodgers and Burt E. Redlus, Miami, for Krause & Sons and Gerald W. Krause.
    Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for Hartford Accident.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for Spann and Travelers Ins. Co.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   HENDRY, Judge.

These consolidated appeals arise from a final judgment after a jury trial where ap-pellees, plaintiffs below, Morris Spann, Ruth Spann, and the Travelers Insurance Company, as subrogee, sued Krause and Sons, Inc., and Gerald W. Krause for damages arising out of a vehicular accident, and where defendants, Krause and Sons, Inc., and Gerald W. Krause, as third party plaintiffs, filed a third party complaint against Hartford Insurance Company, Re-gan Insurance Agency, and Carlton E. Re-gan, as third party defendants, for their wrongfully denying coverage under an insurance policy issued to them and for their negligence in failing to provide sufficient coverage under the policy.

At the conclusion of the evidence, the trial court granted a directed verdict on the issue of liability between plaintiffs and defendants in favor of plaintiffs. Thereafter, the case went to the jury on the issue of damages and the third party claims. In accordance with the jury’s findings, the trial court entered a final judgment awarding plaintiffs $17,000.00 from defendants and awarding the same amount to defendants as third party plaintiffs from Regan Insurance Agency, third party defendants. From this final judgment entered by the trial court dated December 16, 1974, appellants bring these consolidated appeals.

Appellant Regan Insurance Agency raises the following three points on appeal: first, that the final judgment against it is inconsistent as a matter of law, second, that the trial court erred in not entering a judgment or a judgment n.o.v. in its favor against appellee Hartford Insurance Company, and third, that the trial court erred in not granting its motions for a mistrial or a new trial based upon the prejudicial remarks of plaintiffs’ counsel during closing arguments to the jury.

Appellants Krause and Sons, Inc., and Gerald W. Krause raise the following three points on appeal: first, that the trial court erred in directing a verdict on the issue of liability in favor of plaintiffs and against Gerald W. Krause, second, that the trial court erred in not granting their motions for a new trial based on excessiveness of plaintiffs’ verdict against Gerald W. Krause, and third, that the trial court erred in not granting their motions for a mistrial due to the conduct of plaintiffs’ counsel during his closing argument.

We will first consider the similar third points raised by appellants. The record discloses that, during argument, appellants objected to several statements made by plaintiffs’ counsel as being inflammatory and prejudicial. Based on these objections, appellants moved for a mistrial, but their motions were denied. However, the trial judge gave a curative instruction to the jury in regard to these statements. Subsequently, appellants’ motions for a new trial, based on the same points, were also denied.

Counsel are accorded a wide latitude in making arguments to the jury and, unless their remarks are highly prejudicial and inflammatory, statements made to the jury during closing arguments will not serve as a basis for reversing a judgment. Metropolitan Dade County v. Dillon, Fla.App. 1974, 305 So.2d 36; Decks, Inc. v. Nunez, Fla.App.1974, 299 So.2d 165; Tate v. Gray, Fla.App.1979, 292 So.2d 618; and Dixie-Bell Oil Co., Inc. v. Gold, Fla.App.1973, 275 So.2d 19. In the instant appeals, we conclude that the statements made by plaintiffs’ counsel and objected to by appellants were so prejudicial as to constitute reversible error when their motions for a mistrial or new trial were denied by the trial court, even in light of the curative instruction given. However, we further conclude that none of the points raised in the appeals constitute reversible error in regard to appellees Hartford Insurance Company and Carlton E. Regan. Therefore, the cause should be remanded to the trial court for a new trial on the issues of damages, except the final judgment appealed is affirmed as to Hartford Insurance Company and Carlton E. Regan. In light of this determination, it is unnecessary for us to discuss the other points raised on appeal by appellants.

Affirmed in part, reversed in part.


author: SCHEB, Judge.

text:
    James M. FOLEY, Appellant, v. George A. MORRIS, M.D., and the Hartford Accident & Indemnity Company, Appellees.
    No. 75-33.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
    Guy N. Perenich, of Muscarella, Perenich & Carroll, Clearwater, for appellant.
    Stephen L. Rosen, of Marlow, Mitzel, Ortmayer & Shofi, Tampa, for appellees.
   SCHEB, Judge.

The appellant/plaintiff James M. Foley sued .the appellees/defendants, George A. Morris, M.D. and his insurer, The Hartford Accident & Indemnity Company, for alleged medical malpratice. The trial judge dismissed the plaintiff’s complaint on the ground his 'cause of action was barred by the statute of limitations. We affirm.

On September 17, 1974, the plaintiff filed his complaint against Dr. Morris and his insurer, Hartford. The plaintiff alleged the defendant physician left a rubber drain in his body during surgery performed on April 14, 1971; that said drain was removed on September 11, 1971, by Dr. William E. Kilgore when he performed further surgery on plaintiff necessitated by defendant Dr. Morris’ original negligence. Further, that on November 13, 1972, Dr. Kilgore performed additional surgery allegedly made necessary by the negligence involved in the first operation. Defendants sought dismissal on basis that the plaintiff’s cause of action was barred by the statute of limitations, Fla.Stat. § 95.-11(6) (1973), effective July 1, 1972. The trial court granted the motion and entered a final order of dismissal from which the plaintiff now appeals.

The question we address is: Whether the plaintiff’s cause of action was governed by the four-year statute of limitations (Fla.Stat. § 95.11(4) (1973)), which was effective until July 1, 1972, or by the new two-year statute of limitations (Fla. Stat. § 95.11(6) (1973)), which became effective July 1, 1972.

The plaintiff contends the four-year statute of limitations applies. He argues that for the new statute to apply, it must be given retroactive effect and that Ch. 71-254 which created Fla.Stat. § 95.11 (6) (1973) did not so provide. Plaintiff relies principally on Maltempo v. Cuthbert, Fla.App.2d 1974, 288 So.2d 517, and DeLuca v. Matthews, Fla.App. 4th 1974, 297 So.2d 854, which cases also involve legislative changes in the limitations period applicable to these same statutes. Further, plaintiff contends that assuming, arguendo, the new two-year statute is applicable to his claim against Dr. Morris, it did not commence running until November 13, 1972, the date of the last surgery performed by Dr. Kilgore.

The defendants, however, argue the statute commenced running from the notice of invasion of plaintiff’s rights which occurred no later than September 11, 1971, when Dr. Kilgore removed the rubber drain from the plaintiff’s body. Also, they contend that since the plaintiff waited over two years after the effective date of the new statute of limitations, he had the full benefit of the new limitations period.

On the date of the alleged malpractice, i. e., April 14, 1971, there was no statute of limitations explicitly applicable. Rather, medical malpractice actions fell within the “catch all” provision of Fla.Stat. § 95.-11(4), which provided a four-year limitations period for actions for relief not otherwise specified in Fla.Stat. Ch. 95. Effective July 1, 1972, however, Fla.Stat. § 95.-11(6) provides a specific two-year statute of limitations for medical malpractice actions.

In Maltempo v. Cuthbert, supra, this court held that where there is reasonable doubt concerning legislative intent to provide for a retroactive limitations period, the benefit of that doubt should be given to the party with an existing cause of action. Maltempo recognizes the legislative power to retroactively shorten a period of limitations, as long as persons with existing causes of action are afforded a reasonable period of time in which to file suit. However, in that case the legislature did not provide any time for persons with existing causes of action to sue and the court rejected the argument that the legislature, having given a lengthy notice of passage of the new act prior to its effectiveness, intended retroactive effect.

But, is it necessary that the new statute be applied retroactively if the plaintiff’s cause of action is to be governed thereby? We think not. Here the plaintiff waited until he received full benefit of the new two-year statute of limitations before he filed his complaint whereas in both Maltempo, supra, and DeLuca, supra, the plaintiff did not have benefit of the entire new period after the new act was passed. In fact, if the court had given the new statute of limitations retroactive effect in Maltem-po, the plaintiff’s cause of action would have expired at the very time the act first became effective.

We have not been cited to, nor does our research disclose any Florida case directly on point. However, in Sohn v. Waterson, 1873, 84 U.S. (17 Wall.) 596, 21 L.Ed. 737, the U.S. Supreme Court discussed three different modes of giving a statute of limitations prospective effect and found the preferable course to be that a new statute of limitations commences to apply when the cause of action is first subjected to the operation of the new statute.

Several state courts have applied the Sohn principle to situations similar to this case. In O’Donoghue v. State, 1965, 66 Wash.2d 787, 405 P.2d 258, the plaintiff was injured on May 15, 1963, at a time when the statute of limitations was two years. On June 13, 1963, an act became effective limiting the statute of limitations to 120 days. On December 10, 1963, the plaintiff filed suit. This was within two years from the time of the injury, but after 120 days from the effective date of the shorter limitations period. The court, relying on Sohn, dismissed the complaint, holding that in no sense had there been a retrospective application of the law, stating that “a new statute of limitations takes effect upon the preexisting rights of action and limits them, but in every such case the full time allowed by the new statute is available to the complainant; in other words, the limitation of the new statute as applied to pre-existing causes of action commences when the cause of action is first subjected to the operation of the statute, unless the Legislature has otherwise provided.”

Olivas v. Weiner, 1954, 127 Cal.App.2d 597, 274 P.2d 476, involved the following factual situation: In 1941, the California legislature passed a law stating that any action on behalf of a minor for personal injuries sustained prior to, or in the course of birth must be brought within six years from the date of the birth. Until that time such an action could be brought within one year after the child attained his majority. The plaintiff, who was born in December 1931, filed his complaint in June 1953, a date within the former limitations period. The California court wrote:

If six years was a reasonable time within which to sue for future injuries (and it undoubtedly was), it was all the more ample for those that had previously occurred.

There, the plaintiff argued that the amendment operated retrospectively and was therefore invalid. But, citing Sohn v. Waterson, supra, the court on appeal dismissed this argument, holding that anyone having a right of action under the statute had six years after the amendment became effective within which to file his complaint.

Finally, in a recent case remarkably similar to the case at bar, Greenhalgh v. Payson City, Utah 1975, 530 P.2d 799, the plaintiff’s cause of action against a physician arose in January 1970, while a four-year statute of limitations was in effect. Then in 1971, the legislature enacted a two-year statute of limitations, effective on May 11, 1971. The new act specifically said: “This act shall not be construed to be retroactive.” Suit was filed in December 1973, before the four-year statute would have expired. The Utah court said to apply the new two-year statute to the case when the two-year limitations period was computed as starting on May 11, 1971, did not constitute a retroactive application of the new act. The court held the action to be barred.

As stated, no Florida case appears to be directly on point. Statutes of limitation, however, are generally considered to be procedural. Colhoun v. Greyhound Lines, Inc., Fla.1972, 265 So.2d 18. Therefore, we conclude that where the plaintiff has had the benefit of the entire new period of limitations to file suit on a pre-existing cause of action, application of the new statute is prospective in that the statutory change relates only to procedures to occur in the future. No substantive right has been impaired. Accordingly, we hold the trial court was correct in holding the plaintiff’s cause was governed by the new two-year statute of limitations, Fla. Stat. § 95.11(6) (1973), which became effective July 1, 1972.

We reject plaintiff’s argument that the new statute did not commence running until November 13, 1972, on which date plaintiff claims surgical intervention finally brought to light the “full extent” of his injury. Ordinarily a statute of limitations commences running when the plaintiff has been placed on notice of his right to a cause of action. City of Miami v. Brooks, Fla.1954, 70 So.2d 306; and Vilord v. Jenkins, Fla.App.2d 1969, 226 So.2d 245. The plaintiff’s complaint alleges that Dr. Kilgore removed the rubber drain from his body on September 11, 1971. Thus, the plaintiff was certainly aware of his cause of action prior to July 1, 1972, the effective date of the new two-year limitations period.

Affirmed.

HOBSON, A. C. J., and BOARDMAN, J., concur.

      . Fla.Stat. § 95.11(6) amended by Laws of Florida, Ch. 71-254, enacted June 23, 1971, and effective July 1, 1972, provided:
      (6) WITHIN TWO YEARS ....
      an action to recover damages for injuries to the person arising from any medical . . . treatment or surgical operation, the cause of action in such case not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury.

      . We note that the 1975 session of the legislature further addressed this rule of when the statute commences to run by enactment of Ch. 75-9, amending Fla.Stat. § 95.11(4), effective May 20, 1975, and providing in subsection (h) :
      (b) An action for medical malpractice shall be commenced within two years from the time the incident occurred giving rise to the action, or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence, provided, however, that in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued. ... In those actions covered by this paragraph where it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the four-year period, the period of limitations is extended forward two years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed seven years from the date the incident giving rise to the injury occurred.


author: McNULTY, Chief Judge.

text:
    Lucy Ware MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-619.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1975.

      William C. Ballard, of Baynard, McLeod, Lang & Ballard, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   McNULTY, Chief Judge.

Appellant, a news reporter claiming a First and Fourteenth Amendment privilege of confidentiality of news sources, was twice found guilty of contempt for refusing to answer certain questions propounded, in the first case, before a state attorney’s “investigation” in Pasco County, and, in the second, for refusing to answer the same questions before a county grand jury. We reversed the first conviction in a previous appeal on grounds which we will briefly discuss, infra. The present appeal is from the second order of contempt and as to this we are compelled to affirm.

Both cases have their origin in events which occurred on or about November 1, 1973. At that time there was an ongoing grand jury investigation into matters concerning the public officials of Dade City in Pasco County. On that date there appeared in the Pasco edition of the St. Pe-tersburg Times an article entitled, “Jury Assails Dade City, Indicts No One,” under the byline of appellant Lucy Ware Morgan. It is agreed by all that a reading of the article printed under the headline would leave little doubt that the source of much of the information contained therein was a leak somewhere in the grand jury itself or in the array of court personnel having access to the grand jury’s activities.

The state attorney, on that same day, caused appellant to appear before him in what he advised was an “investigation” into that leak. He announced at the time that specifically he was looking into a violation of § 905.24, F.S.1973, which concerns itself with grand jury secrecy. Having been sworn to answer all questions appertaining thereto appellant nonetheless refused to divulge the source of certain <3f her information and claimed a First and Fourteenth Amendment privilege of confidentiality of such source. She was called before the circuit court immediately thereafter and upon her further refusal to reply to the questions aforesaid was held in contempt. She appealed that judgment of contempt and that appeal was the aforementioned first appearance of the matter before us.

We reversed the finding of contempt in that case on the narrow ground that the “investigation” then being conducted by the state attorney, and during which the appellant refused to answer the questions posed, was an unauthorized investigation and thus could not form the basis for a contemptuous act before it. Section 905.24, supra, the precise statute involved therein, provides as follows:

“Proceedings of grand jury to he kept secret. — Grand jury proceedings are secret, and a grand juror shall not disclose the nature or substance of the deliberations or vote of the grand jury.”

It will be noted that there is no penalty prescribed for a violation thereof nor is a violation declared “unlawful.” This being so, we reaffirmed in that first case, the well-settled Florida rule that, absent a prescribed penalty or a declaration of unlawfulness, a statute proscribing certain acts is not a criminal statute; and the state attorney being empowered only to conduct investigations into violations of the criminal law, we concluded that his “investigation” was unauthorized. We never reached, in that case, the question of a constitutional privilege to confidential news sources. We do now.

The circumstances underlying the conviction of contempt in the present case find their beginning on or about November 13, 1973, while the aforesaid first appeal was pending in this court. On that date appellant was caused to appear before the grand jury itself. It was announced by the grand jury that it, too, was investigating and looking into the possible leaks to its proceedings. Appellant was granted transactional immunity from anything she might be called upon to say and again she was asked the source of her information. Again she insisted on her claimed First and Fourteenth Amendment rights to confidentiality of the source, was again caused to be brought before the circuit court and was again found to -be in contempt of court. This time she was sentenced to a flat term of imprisonment in the county jail for a period of ninety days.

At the outset, we hold that, unlike the state attorney’s “investigation,” the grand jury was clearly well within its proper authority in investigating matters which imperiled its own integrity or its entitlement to the secrecy afforded by Ch. 905, F.S.1973. It is irrelevant as to these matters whether the violations of secrecy or the “leak” constituted a crime or not. Furthermore, the court itself was empowered to assist the grand jury, an arm of that court, in the exercise of its proper functions. The court order to respond to the proposed questions was therefore duly entered and the judicial finding of contempt was proper upon refusal to answer unless, of course, there was a recognizable right to refuse. We hold that there was no such right in this case.

Our own Supreme Court held fairly early on in Clein v. State that there was no privilege of confidentiality. It was held there that newspersons are under the same duty to testify, when properly called upon, as any other person. In the light of the more recent United States Supreme Court decision in Branzburg v. Hayes, however, it is probable that the ruling in Clein is no longer the law, or, at least, has been considerably diluted. As we read Branzburg, as have other courts construing it, there is to some degree a recognizable limited or conditional First Amendment privilege to confidentiality of news sources which, nonetheless, must yield when outweighed by a more compelling public interest. Branzburg, as here, was concerned with a grand jury setting, and it was determined there that a valid inquiry into criminal activity was of sufficient compelling nature as to override whatever conditional privilege was vested in the press. Additionally, it has been suggested that Branzburg may also require that a determination be made that society’s interest is “immediate, substantial, and subordinating”; that there be a “substantial connection” between the information desired of the witness and the interest of society in the subject matter of the investigation; “and that the means of obtaining the information is not more drastic than necessary to forward the asserted governmental interest.” If this be so, and we take it to be so, we nevertheless think the record clearly shows each of such criteria to have been met here, leaving only the question of whether the judicial inquiry in which the Branzburg “privilege” must yield need necessarily be concerned with criminal activity.

We therefore now explore that question, viz., whether, assuming a valid investigation into matters properly the subject of a grand jury inquiry, such matters need be of the magnitude of possible criminal violations before the “privilege” must yield. We agree with the Ninth Circuit in Farr v. Pitchess and think not.

In Farr, the trial court entered an order relating to pre-trial publicity, within the purview of Sheppard v. Maxwell, calculat-ed to assure the infamous Charles Manson, charged with murder, a fair trial. A “confidential source” violated that order and divulged certain information to Farr, a news reporter, who was subsequently held in contempt for refusing on First Amendment privilege grounds to reveal the source. The Ninth Circuit, supra, ultimately upheld the conviction holding, first of all, that the Branzburg rationale may be extended to the trial setting and, secondly, that the efforts to enforce a court order entered to preserve the integrity of a murder trial, though so enforceable only by contempt process, were of sufficient compelling public interest as to outweigh a Branzbttrg “privilege.”

Here, as in Farr, the feared violation of the grand jury’s secrecy most likely did not involve anything more than contempt of court. Indeed, the only “crime” set forth in Ch. 90S, supra, relates to revealing the testimony of a witness before the grand jury, and there is no contention made here that such was the nature of the leak under investigation. But we are of the view that preservation of the rule of secrecy in grand jury proceedings and preservation of the integrity of the grand jury as an arm of the judicial branch of government is of compelling public interest equal to that recognized in Farr and is equally sufficient to override a claimed First Amendment privilege of confidentiality of a news source. If a newsman’s privilege against disclosure of news sources is to serve as a bar to disclosure of the names of anyone who would violate that integrity or who would frustrate the legislative mandate of grand jury secrecy, then the courts are powerless to preserve the integrity or enforce the mandate.

We conclude, therefore, that the actions of appellant in this case constituted a direct challenge to the power and duty of the court to protect and render effective its own processes and to preserve the integrity of the grand jury under its charge. We conclude further that the matter is of sufficient compelling public interest as to outweigh whatever First Amendment privilege of confidentiality of news sources appellant has under the rationale of Branzburg, supra.

We consider now appellant’s contention that the sentence imposed herein was “harsh and excessive.” However severe, the sentence is nevertheless valid and within recognized legal limits. As such, it is beyond our power to disturb it.

In view whereof, the judgment and sentence appealed from herein should be, and they are hereby, affirmed.

BOARDMAN and GRIMES, JJ., concur.

      . Morgan v. State (Fla.App.2d, 1975) 309 So.2d 552.

      . (Fla.1950), 52 So.2d 117.

      . 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

        . See, e. g., Farr v. Pitchess (9th Cir. 1975) 522 F.2d 464; Carey v. Hume, 160 U.S.App.D.C. 365, 492 F.2d 631 (1974); U. S. v. Liddy, 155 U.S.App.D.C. 382, 478 F.2d 586 (1972); Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972). In fact, the “privilege” was allowed to stand in Bursey, supra.

      . See Liddy and Bursey, id.

      . Note 4, supra.

      . (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600.

      . See Shillitani v. United States (1966) 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622; Baker v. Eisenstadt (1st Cir. 1972), 456 F.2d 382; United States v. DiMauro (8th Cir. 1971), 441 F.2d 428. Also cf. Colombo v. New York (1972) 405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762.


text:
    Kenneth Glenn WEED, Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Appellee.
    No. 75-785.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1975.
    Rehearing Denied Feb. 9, 1976.
    Richard L. Jorandby, Public Defender, and Channing E. Brackey, Asst. Public Defender, for defendant.
    Robert L. Shevin, Atty. Gen., and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Chief Judge.

This is a plenary appeal via habeas corpus from a conviction of breaking and entering with intent to commit grand larceny. Since the issues have been well briefed and discussed' in depth at oral argument we shall concisely present our dispositive conclusions.

The inventory search of appellant’s automobile was unreasonable and illegal in that it did not meet the criteria and guidelines provided in the case of State v. Jenkins, 319 So.2d 91 (Fla.App. 4th, 1975). In State v. Jenkins, supra, this court approved an inventory search when the totality of the circumstances demonstrated the search was a bona fide inventory made in the ordinary course of police procedure. The court held that:

“Whether or not an inventory search is unreasonable and has been misused will depend on the particular facts and circumstances of each case.”

In the Jenkins case the defendant was the sole occupant of the searched vehicle, he had been arrested late at night and the car was on the open highway. The Jenkins defendant did not protest the inventory search. In this case all the occupants of the car, defendant and two others, were arrested, but the arrest was made during trade hours and the car was parked in a Winn-Dixie parking lot. Defendant did protest the search. There was no reason given by the State for an inventory search except that the car was “unattended.” That is not sufficient to justify the search. See: In re 1972 Porsche 2 Dr., ’74 Fla.Lic.Tag ID 91780, 307 So.2d 451 (Fla.App. 3rd, 1975), in which the court stated:

“At the hearing in the trial court, the state relied simply on the policy of the Dade County Public Safety Department. It was contended that the vehicle was inventoried, searched, and towed as a matter of ‘self-protection’ since the car was not located at the owner’s, Higgins’, residence and therefore potentially was subject to a claim that either the car or loose articles lying therein were taken. We find such a rationale legally insufficient.” Id. at 453.

For inventory searches approved by appellate tribunals see State v. Jenkins, supra; Urquhart v. State, 261 So.2d 535 (Fla.App. 2nd, 1971); State v. Ruggles, 245 So.2d 692 (Fla.App. 3rd, 1971); Godbee v. State, 224 So.2d 441 (Fla.App. 2nd, 1969); Knight v. State, 212 So.2d 900 (Fla.App. 3rd, 1968).

The contraband and confessions obtained from this defendant were .tainted by the illegal inventory search, and should have been suppressed. Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The appealed judgment is reversed and the case remanded for a new trial.

Reversed and remanded.

OWEN and DOWNEY, JJ., concur.


author: BOARDMAN, Judge.

text:
    SARASOTA COUNTY, Florida, a political subdivision of the State of Florida, Appellant, v. GENERAL DEVELOPMENT CORPORATION, a Foreign Corporation doing business in the State of Florida, and the City of North Port, Florida, an incorporated municipality of the State of Florida, Appellees.
    No. 75-77.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.

      Richard E. Nelson, Nelson, Payne, Hesse & Cyril, Sarasota, for appellant.
    William C. Strode, Strode, Hereford & Taylor, Sarasota, for appellee Gen. Development Corp.
    James H. Thompson, Thompson & Geithman, Englewood, for appellee City of North Port, Fla.
    James D. Whisenand, Asst. Atty. Gen., Tallahassee, as amicus curiae for The Florida Land and Water Adjudicatory Commission.
   BOARDMAN, Judge.

Appellant, Sarasota County (County), timely appeals an order dismissing its complaint for declaratory and injunctive relief filed against appellees, General Development Corporation (GDC) and the City of North Port (City).

The complaint alleged that GDC was contemplating a certain land development known as Myakka Estates, lying entirely within the City and situate in the County, which constituted a “ ‘Development of regional impact,’ ” as defined in Fla.Stat. § 380.06 (1973). GDC had obtained from the City an order approving the development. The County complained of improprieties in the procedures followed in obtaining the City’s approval under § 380.06, and alleged that it was attempting to appeal ' this order to the Florida Land and Water Adjudicatory Commission. The complaint also asserted that GDC had recorded plats of its subdivision without the approval of the Board of County Commissioners of Sarasota County.

The complaint contained four prayers for relief, to wit: (1) a judgment declaring that GDC and the City had not complied with the requirements of Chapter 380 with regard to the approval of Myakka Estates as a development of regional impact, (2) a judgment declaring the County’s right to appeal the order of approval to the Florida Land and Water Adjudicatory Commission, (3) a judgment that GDC had violated certain general and local laws concerning the recording of subdivision plats, and (4) an injunction prohibiting construction or sale of lots in the subdivision unless the plats are approved by the Board of County Commissioners. The complaint was dismissed for lack of jurisdiction over the subject matter for the reason:

. that the Plaintiff, SARASOTA COUNTY, is not a proper party to file an appeal to the Florida Land and Water Adjudicatory Commission, pursuant to Section 380.07 of the Florida Statutes and finds that in any event said plaintiff has failed to exhaust its administrative remedies under Chapter 380, Florida Statutes, since the appeal is still pending. . . .

With respect to the appeal from an order of a local government concerning a development of regional impact, Fla.Stat. § 380.07 (2) provides:

. Within thirty days after the order is rendered, either the owner, developer, an appropriate regional planning agency, or the state land planning agency may appeal the order to the Florida land and water adjudicatory commission by filing a notice of appeal with the commission. .

This statute was recently construed by the First District Court of Appeal in Sarasota County, Florida v. Beker Phosphate Corporation, Fla.App.1st, 1975, 322 So.2d 655, which held that parties other than those specifically enumerated in the statute' had no right to seek review of a development of regional impact order. We are persuaded by the reasoning of that opinion and the specific language of the statute that Sarasota County has no right of appeal from the City’s order to the Florida Land and Water Adjudicatory Commission.

In its first prayer for relief, the County seems to be collaterally attacking the order approving the development of regional impact by alleging a departure from the procedures prescribed by Chapter 380. We cannot see how the County has standing to make these complaints. The City is clearly the “local government” having zoning jurisdiction over the land in question under Fla.Stat. § 380.06(5) (1973). There is no suggestion that the County has zoning authority over this land. Fla.Stat. § 380.11 (1974), which was added to Chapter 380 in 1974, and provides that certain parties, including counties and municipalities, are authorized to bring “. . . an action for injunctive relief, both temporary and permanent, against any person or developer found to be in violation of the provisions of this act, or any rules, regulations, or orders issued thereunder,” should be read in the context of the entire chapter. Thus, this section simply means a county or municipality otherwise having jurisdiction or standing under Chapter 380 could seek injunctive relief for violations. For example, the City could seek to enjoin GDC for the violation of a condition of its order approving Myakka Estates as a development of regional impact, but under the statutory scheme the County simply has no standing because the land is not within its zoning authority.

The order dismissing the complaint for lack of jurisdiction seems to be directed entirely to the County’s claims under Chapter 380. There were no motions to dismiss for failure to state a cause of action. The allegations and the two remaining prayers pertaining to the County’s right to exercise control over subdivisions by way of certain recording statutes were never reached by the trial court. Chapter 380 does not purport to affect whatever authority the County might have under these statutes. Therefore, the order appealed is hereby reversed, and the cause is remanded for further proceedings upon the remaining viable issues raised in the complaint.

Reversed and remanded.

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


author: BOARDMAN, Acting Chief Judge.

text:
    Ronald M. RODGERS, a/k/a Arthur J. Pellerin, Appellant, v. STATE of Florida, Appellee.
    No. 74-1344.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1975.
    James A. Gardner, Public Defender, Sarasota, and Harold H. Moore, Asst. Public Defender, and Dennis J. Plews, Legal Intern, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

The appellant, Ronald M. Rodgers, also known as Arthur J. Pellerin, was convicted after trial by jury on all counts of a trial court imposed the following sentenc-nine-count amended information. The es:

The sentences were to run consecutively. After trial, appellant filed a motion for new trial, motion for arrest of judgment and a motion for correction and reduction of sentences. It is from the order of the trial court denying said motions that this timely appeal is taken.

The facts are not in real dispute. Appellant and Raymond Ducci (not involved in this case) entered and robbed Cox’s Jewelry Store in the City of Naples around 1:00 P.M. on July 25, 1974. Davis and Louise Kicklighter were operating the store at the time. Their daughter, Pricilla, was also present. It was Ducci who forced the Kicklighters to lie down behind one of the display cases. Mr. Kicklighter managed to activate a silent burglar alarm. As soon as the two men left the store with jewelry, etc., Officer Ojanovac of the Police Department of the City of Naples, pulled up in front of appellant’s Cadillac. Ducci fired at least two shots in Officer Ojanovac’s direction. The officer was only slightly injured.by flying glass. Ducci and appellant wheeled out of the parking lot with Ojanovac and Kicklighter in pursuit. Officer Ojanovac lost them during the chase. Mr. Iverron, a state’s witness, testified that he was employed by the telephone company as a telephone installer; while he was working outside he heard several shots fired and saw a green Cadillac automobile drive rapidly down the street and pull into the carport of an unoccupied house; he saw a gun in the hand of one of the two male occupants and he called the police. Lucille and William Martin lived directly across the street from the house where appellant and Ducci pulled into the carport. The testimony showed that the owners of that house had asked the Martins to look out for it in their absence. Mr. Martin went out to see what the two men wanted and met them in the middle of the street and, after a brief exchange of words, appellant stuck a gun in his back and ordered him to take them into his home. It was then decided by the intruders that Mr. and Mrs. Martin would be taken as hostages and forced to drive appellant and Ducci to Ft. Lauderdale. Mr. Martin drove his car with his wife in the front passenger seat and appellant and Ducci in the backseat. Officer Woodill had heard Officer Ojanovac’s call for assistance, spotted the Martins’ Lincoln Continental and pulled it over. Appellant and Ducci surrendered without resistance. Two handguns were confiscated at the time the arrest was made and appellant and Ducci were taken into custody.

The appellant took the witness stand and testified in his own behalf. He admitted that he participated in the alleged offenses, but that he did so out of his fear of Ducci; that Ducci had threatened to kill him, his girl friend and her children. His defense to each charge was coercion.

Upon careful review of the record and briefs, we think it advisable to discuss the four points raised by appellant.

In point one, appellant contends that the trial judge erred in permitting the state to proceed to trial joining the above offenses in a single information. In support of this contention, appellant relies on a decision of this court in the case of Kilgore v. State, Fla.App.2d, 1972, 271 So.2d 148. The cited case is distinguishable on facts and, further, was reversed by this court on grounds not applicable here. In Kilgore, süpra, the defendant, on the day of trial, became aware that he was to be tried on two separate informations charging separate and distinct felonies before the same jury. The state filed its motion to consolidate the two cases for trial over the defense counsel’s timely objection. The motion was granted. In this case the record is clear that appellant, several weeks prior to trial, was cognizant that he would be tried before the same jury for all of said offenses that had been initially charged in four separate informations. It was only at a hearing held on the day prior to the scheduled trial date that attorney for appellant moved for separate trials. The said motion was granted. Later that same afternoon, however, the state filed its motion to amend informations requesting therein that all offenses be tried jointly. This motion was granted and the case proceeded to trial. We hold that no reversible error is shown to appear. We point out that notwithstanding the said offenses were committed against different victims, they occurred within a half hour period and were a part of the same continuing criminal escapade. Ashley v. State, Fla.1972, 265 So.2d 685.

In point two, the appellant contends that the trial court erred in not granting his motion to disqualify the trial judge, a county judge. In support of this position, which we submit is not well taken, appellant relies on Section 26.57, Florida Statutes. The statute does, provide, among other things, that a county judge may try felony cases where there is no resident circuit judge.

Appellant contends that by implication a county judge cannot try felony cases when there is a resident circuit judge. However, Article V, § 2, Florida Constitution, provides that the Chief Justice of the Supreme Court may assign judges to any court for which the judge is qualified, and that the Chief Justice may delegate to the Chief Judge of the Circuit Court the power to assign judges in his circuit. See also Rule 1.020(b) (3) (ii), RCP. In State ex rel. Treadwell v. Hall, Fla.1973, 274 So.2d 537, the Supreme Court held that qualified county judges may “be assigned as temporary circuit judges for the performance of any judicial service a circuit judge can perform.” (Emphasis added)

We mention that the appellant does not attack the qualifications of the trial judge, the Honorable Thomas T. Trettis, Jr., county judge. The record shows that the chief judge of the circuit signed an order under authority granted to him in Article V, § 2, supra, appointing the trial judge to preside over appellant’s trial. If we were to adopt appellant’s reasoning, under no circumstances could a county judge be temporarily appointed to hear and determine circuit court matters when a circuit judge resides in the county. Such a conclusion is entirely inconsistent with the spirit and intent of the provisions of Article V, § 2, Florida Constitution, one purpose of which is to streamline and expedite the orderly administration of justice.

As to point three, appellant attacks the verdicts reached by the jury on Count 5 and Count 6. Appellant was charged in Count 5 with breaking and entering with intent to commit a felony, to wit: false imprisonment and kidnapping. Over appellant’s objection, the jury was instructed that he could be 'convicted of the lesser included offense of breaking and entering with intent to commit a misdemeanor. As previously stated above, the jury verdict returned on Count 5 was as follows:

We, the Jury, find the Defendant guilty as charged on Count 5, Breaking and Entering with the intent to commit a misdemeanor. . . .

It is therefore apparent that the jury found the appellant had the intent to commit an unspecified misdemeanor, which was not stated in the accusatory writ. We cannot determine whether this misdemean- or was included within the offense of false imprisonment or kidnapping, particularly in view of the fact that the court never defined the elements of any misdemeanor which appellant might have been intending to commit. Accordingly, the judgment must be set aside and the companion judgment on Count 6 must also fall.

Lastly, appellant contends that only one sentence is legal under the same transaction doctrine. We have considered this question in several prior cases and have consistently held that where different victims are involved in crimes, an accused, upon conviction, may be sentenced for each separate offense regardless of whether such criminal conduct may be said to have occurred within a single criminal episode. See, e. g. Ellis v. State, Fla.App.2d, 1974, 298 So.2d 527.

The judgments on Counts 5 and 6 are vacated; in all other respects, the case is affirmed.

GRIMES and SCHEB, JJ., concur.

      . Convicted of B & E with intent to commit a misdemeanor (Count 5).


text:
    Leigh S. WILSON, as Sheriff of Brevard County, Florida, Appellant, v. STATE of Florida ex rel. Robert TARTER, Appellee.
    No. 75-124.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Rehearing Denied Feb. 4, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellant.
    Maurice B. Gralla, Gralla & Norwich, Cocoa Beach, for appellee.
   PER CURIAM.

Pursuant to Part I of the Uniform Interstate Extradition Act (Chapter 941.01— 941.42, F.S.1973) the Governor of Florida issued a rendition warrant for the arrest and extradition of appellee to the State of Ohio.

Appellee filed a petition for writ of ha-beas corpus alleging his unlawful detention because:

(1) the papers from Ohio were not properly authenticated;
(2) identity had not been established;
(3) his presence in Ohio at the time of the crime had not been established;
(4)the papers accompanying the request for extradition were insufficient to show probable cause for the issuance of an arrest warrant or to show that appellee was substantially charged with a crime in Ohio.

The trial court discharged appellee from custody for the reason that the warrant issued by the Governor of Florida was void for failure to comply with § 941.-07, F.S.1973, in that the rendition warrant was insufficient to recite the facts required by that statute, since the term “allied papers” appearing in the rendition warrant “is so vague as to fail to incorporate any document by reliable reference.”

We have examined the record in detail and find the rendition warrant and attachments issued by the Governor of Florida meet the statutory requirements. The warrant, under the hand of the Governor and Seal of the State of Florida, states that the Governor has received “a copy of Demand, Affidavit, Indictment and Allied Papers” from the Governor of Ohio charging ap-pellee with the commission of a crime in the State of Ohio.

The papers attached to appellant’s return clearly show the jurisdictional prerequisites which are the exclusive subject of inquiry in habeas corpus proceedings arising from extradition cases. State v. Cox, Fla.App.1974, 306 So.2d 156; State v. Gale, Fla.App.1975, 312 So.2d 824. Those authenticated papers show that ap-pellee was charged with the commission of a crime in the State of Ohio, was present in that state on the date in question, had been indicted for the crime, and had fled that jurisdiction. In his petition appellee does not question the validity of the papers attached to appellant’s return; he simply alleges that the Governor’s warrant and attachments are insufficient to support extradition.

We concede that the papers from the Governor of Florida could have been more adroitly prepared and identified, and we would recommend a more definite detailed description of the attached papers. However, the use of the term “allied papers” has been approved in an analogous situation under the Uniform Interstate Extradition Act in Clonts v. Stynchcombe, 229 Ga. 672, 194 S.E.2d 94 (1972).

Accordingly, the judgment appealed from is reversed and the case is remanded with directions to enter an order delivering appellee to the appropriate agent for the State of Ohio.

Reversed and remanded.

CROSS, MAGER and DOWNEY, JJ., concur.


author: GRIMES, Judge.

text:
    Richard WELCH, Appellant, v. STATE of Florida, Appellee.
    No. 75-962.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
    Wilbur C. Smith, III, of Smith & Carta, Fort Myers, for appellant.
    Joseph P. D’Alessandro, State’s Atty., Fort Myers, for appellee.
   ON MOTION TO REVIEW REVOCATION OF BAIL

GRIMES, Judge.

Welch was convicted of possession of a controlled substance and sentenced to thirty months in the state prison. Upon the filing of an appeal, the lower court entered an order granting bail. Welch posted the required supersedeas bond. Thereafter, Welch was arrested for sale of a controlled substance and possession of firearms by a convicted felon. The state then filed a motion to revoke supersedeas bond. Following several hearings the court entered an order revoking Welch’s superse-deas bond. All of these matters occurred prior to the filing of the record on appeal with this court.

The order revoking the supersedeas bond stated that the court was applying the principles of Younghans v. State, Fla.1956, 90 So.2d 308, and gave as reasons for the revocation “that the court has probable cause to believe that the defendant has no respect for the law and has a high propensity to commit criminal acts.” Citing this court’s opinion in Waller v. State, Fla.App.2d, 1968, 208 So.2d 147, Welch contends the denial of bail pending appeal cannot be predicated upon disrespect for law and the propensity to commit crime unless these matters relate to the tendency of the defendant to remove himself from the jurisdiction of the court. Welch correctly states that Waller stands for the proposition that the defendant’s disrespect for the law and the probability that he may commit the same crime again locally cannot be equated with whether he would flee from the jurisdiction to avoid punishment if his conviction was affirmed. We note that the Fourth District Court of Appeal in Baker v. State, Fla.App.4th, 1968, 213 So.2d 285, has interpreted Younghans so as to reach a contrary conclusion. Referring to Waller, that court said:

“. . . We are aware of our sister court’s opinion in Waller v. State, to the effect that any lack of respect for the law, as contemplated by Younghans has reference to whether the defendant would be tempted to remove himself from the jurisdiction of the court. We do not believe the language employed in Younghans was intended as this restrictive and therefore place a broader construction upon the criterion of respect for the law.”

We now have the opportunity to reconsider Waller, and we have reached the conclusion that the principles stated therein should be modified. In so doing, we approve the language of Baker in which the court said:

“In the administration of justice it is the courts’ duty to protect society from the habitual offender. Obviously then, in determining bail the court may consider the record,of a felon where it can be anticipated that he will continue a course of crime until finally behind prison walls. In so doing, the responsibility of the court is fulfilled while giving application to settled principles of law and constitutional guarantees. In fact under the common law and early English statutes, the form of recognizance upon the bail of a defendant was ‘for his appearance to take his trial and to be of good behavior in the meantime.’ Reg. v. Badger, 4 Q.B. 467, 114 Eng.Reprint 975.
“It must be recognized that the granting of bail and the amount thereof is not a strict legal right but rather is a legal favor, resting in the sound judicial discretion of the trial judge.”

While the holding in Waller may have been correct on the facts, we no longer subscribe to the rationale of that opinion.

The record in the instant case reflects that Welch was convicted of a previous felony several years ago. At the time of sentencing for the judgment now on appeal, Welch made an impassioned plea that he now saw the error of his ways, and he promised to lead a new life free of crime. Yet, less than three months later he was arrested for selling a controlled substance to an undercover agent. In addition to the thirty months he will have to serve if his conviction is affirmed, he faces the possibility of further sentences in the maximum amount of twenty years for the new offenses. Applying what we now conceive to be the law to the facts of the case, we conclude that the court did not abuse its discretion in revoking Welch’s bail.

Motion denied.

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


author: PEARSON, Judge. HAVERFIELD, Judge

text:
    The STATE of Florida, Appellant, v. Tommy Lee BUTLER, Appellee.
    No. 74-1790.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Rehearing Denied Feb. 4, 1976.
    Richard E. Gerstein, State Atty., and John Lipinski, Asst. State Atty., for appellant.
    Kessler & Jasinski, South Miami, for ap-pellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

The State has appealed an order dismissing an information charging the defendant with carrying a concealed firearm in violation of Fla.Stat. § 790.01. The dismissal was entered upon a sworn motion filed pursuant to CrPR 3.190(c)(4), which provides for dismissal where: “There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” The State has not challenged the applicability of the procedure employed but has presented a single point:

“Whether the trial court erred in dismissing a charge of carrying a concealed firearm upon the finding that a gun contained in a closed but unlocked center console within arm’s reach of the defendant did not violate the provisions of 790.05, Florida Statutes.”

The trial judge has set forth his conclusions of law:

“ . . . the Court is apprised of the opinion of the Attorney General, (Op. Atty.Gen. 070-161, May 2, 1972), in that, that opinion, holds that a pistol contained in a closed glove compartment does not violate Florida Statute 790.05 unless the pistol is in close proximity to the driver of said automobile. The Court further determines that there is no distinction between a closed glove compartment and a closed center console and the Court finds that a pistol contained in a closed, but unlocked console, is securely encased and that there is little or no difference in the accessibility of the firearm in either location, thus leaving the decision of arrest to the opinion of the police officers, . . .”

The judge has given two grounds for his holding. The first is that a pistol in a closed center console is not in close proximity to, or in easy reach of, the driver. See Watson v. Stone, Fla.1941, 4 So.2d 700. The second ground is that a pistol in a closed center console is securely encased and, therefore, exempt from the concealed firearm category. See Fla.Stat. § 790.25(3), which provides:

“The provisions of §§ 790.05 and 790.06 shall not apply in the following instances.
(.I) Any person traveling by private conveyance when the weapon is securely encased, . . . ”

We should examine these grounds in the inverse order because if the weapon is “securely encased,” it is exempt and there is no need to determine whether the weapon is in “close proximity of the driver.” Encased is simple in meaning. The prefix “en-” means “in.” The principal word “case” means an enclosed container. Gun cases are well known articles. We think that we should give to the words of the statute their ordinary meaning and should apply the statute in a straight-forward, literal manner. See Merrill Lynch, Pierce, Fenner & Smith, and Pritchard v. Byrne, Fla.App.1975, 320 So.2d 436 (released Sept. 23, 1975). We, therefore, hold that a gun placed in an unlocked receptacle which is a part of the automobile is not “securely encased.”

We are mindful of the decision in State v. Hanigan, Fla.App.1975, 312 So.2d 785. This recent decision of the Court of Appeal, Second District, holds that a revolver in a holster with the leather strap snapped over the hammer is so securely encased as to be exempt. That holding may be distinguished from our own, however, on the basis that the nature, proportions, and securing devices of the “encasements” involved here and in the Hanigan case are appreciably different. Nevertheless, we confess to a conflict in the reasoning applied in the two cases, in that we understand the court in Hanigan to reason that the same rationale which exempts a person in his home from a charge of carrying a concealed firearm also exempts a person who carries a concealed firearm in his vehicle. We differ upon this basis in that we apply a strict construction to § 790.25(3) (l), the exemption section. We concur fully in the conclusion of our sister court that the problem of a clarification of the circumstances in which a person may legally handle firearms is a pressing one for the legislature.

Turning now to the apparent holding of the trial judge that a pistol in a closed center console of an automobile is not “in close proximity to, . [the driver] ... or within his easy reach,’ ” it is our conclusion that the decided cases in this state clearly hold that such a gun is concealed on or about the person for the purposes of the statute. See Watson v. Stone, Fla.1941, 4 So.2d 700; Lawson v. State, Fla.App.1971, 251 So.2d 683; State v. Hanigan, Fla.App.1975, 312 So.2d 785.

Accordingly, the order dismissing the information is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

HAVERFIELD, Judge

(dissenting).

I am constrained to dissent.

An analysis of the majority opinion seems to say that if the defendant’s pistol was in a gun case by his side rather than in the closed center console, then he would be exempt from the provisions of §§ 790.05, 790.06, Fla.Stat. I find this reasoning difficult to follow.

I agree that the words oí § 790.25 (3) (i), Fla.Stat. should be given their ordinary meaning and conclude that defendant’s pistol in the closed center console was securely encased. Cf. State v. Hanigan, Fla.1975, 312 So.2d 785 and see 1972 Fla.Atty. Gen.Ann.Rep. 265.

I, therefore, would affirm the order of dismissal.

      . Attorney General Opinion, 072-161, May 2, 1972.

      . The Oxford Universal Dictionary (1955 ed.) defines the word “encase (or incase”: “. • . to put into or enclose within a ease ... to overlay, surround, hem in; . . . to conver, invest . . . ”


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. James D. TOTE, Individually, et al., Appellees.
    No. 75-300.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Kuvin, Klingensmith & Coon and R. Fred Lewis, Miami, for appellant.
    Gilbert, Silverstein & Heilman, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   HENDRY, Judge.

Appellant brings this appeal from an order of the trial court entered on appellee James D. Tote’s, plaintiff below, petition for equitable distribution. Appellant became an interested party in the trial court upon the filing of the motion.

On July 2, 1974, appellee James D. Tote filed an action for damages against ap-pellees American Used Cars, Inc., Israel Mesa, and Old Reliable First Insurance Company seeking recovery for damages resulting from a motor vehicle accident. Subsequently, the case was settled and ap-pellee Tote received $8,000.

Following the accident, appellant paid $3,869.04 to appellee Tote for personal injury protection benefits pursuant to the Florida Automobile Reparations Reform Act and its policy of insurance with ap-pellee Tote. After the case was settled, appellee Tote filed a petition for equitable distribution. On January 28, 1975, the trial court entered its order, after a hearing, on appellee Tote’s petition and awarded appellant $500 as full and complete settlement of its personal injury protection lien. From the order, appellant brings this appeal.

Appellant contends that the trial court erred and abused its discretion in awarding it only $500 pursuant to § 627.736(3) (b), Fla.Stat., F.S.A., providing for equitable distribution of the amount recovered by ap-pellee Tote. Appellee contends that the trial court did not abuse its discretion and, therefore, the order appealed should be affirmed.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that no abuse of discretion has been demonstrated. See Liberty Mutual Insurance Company v. Avila, Fla.App.1975, 317 So.2d 784; American Fire and Casualty Company v. Oller, Fla.App.1975, 313 So.2d 67; Central National Insurance Company v. Fernandez, Fla.App.1975, 307 So.2d 906; and Reyes v. Banks, Fla.App.1974, 292 So.2d 39. Therefore, for the reasons stated and upon the authorities cited, the order appealed is affirmed.

Affirmed.


author: MAGER, Judge.

text:
    The ELMEX CORPORATION, Appellant, v. ATLANTIC FEDERAL SAVINGS AND LOAN ASSOCIATION OF FORT LAUDERDALE, a Florida Corporation, Appellee.
    No. 75-1314.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.

      Peter H. Leavy, Myers, Kaplan, Levin-son & Kenin, Miami, for appellant.
    Robert N. Fryer, Jr., Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for ap-pellee.
   MAGER, Judge.

This is an interlocutory appeal by The Elmex Corporation, an Ohio corporation, defendant below, from an order denying defendant’s motion to dismiss the complaint and quash substituted service of process of Atlantic Federal Savings and Loan Association of Fort Lauderdale, plaintiff below.

The plaintiff filed suit to recover money damages resulting from an alleged breach of a condition of a contract entered into by and between the plaintiff and defendant. At the outset of its complaint plaintiff alleged :

“ (1) Plaintiff is a corporation under the laws of the State of Florida having its principal place of business in the State of Florida and Defendant, THE ELMEX CORP.j is a corporation incorporated under the laws of the State of Ohio and derives substantial revenue from the sale of items of tangible personal property, both directly and through wholesalers and distributors, to persons and firms within the State'oí Florida.

The complaint reflected an offer by plaintiff to purchase certain merchandise from defendant for the sum of $41,400 and the forwarding of a purchase order by plaintiff to the defendant for that purpose. The complaint alleges that the purchase was conditioned upon the merchandise being 100 per cent refundable and upon payment by the defendant of one-half of the' freight charges (which conditions appear on the face of the purchase order).

The plaintiff’s complaint further alleges that defendant accepted the offer when it shipped the merchandise from its warehouse located in Dallas, Texas to plaintiff in Florida. Defendant subsequently billed plaintiff for $41,999.95, representing the cost of the merchandise and freight charges which was paid in full. Plaintiff alleges that a return of a portion of the merchandise for refund was refused by defendant and, further, that defendant failed to give plaintiff credit for one-half of the freight charges incurred in the delivery and return of the merchandise. Asserting defendant’s alleged failure to perform the agreement, plaintiff claimed damages in the amount of $37,033.67.

Defendant filed a Motion to Dismiss Complaint and Quash Process asserting that the complaint failed to set forth the necessary allegations giving rise to the use of substituted service of process and failed to demonstrate the (nonresident) defendant’s minimum contacts with the state.

In support of its motion defendant submitted a sworn affidavit of its vice-president which averred that the defendant corporation does not maintain or have in the State of Florida: any business office, bank account, telephone listing, books of account or any other books and records, goods stored, leased or owned property. The affidavit further avers that defendant does not have any employees or agents who performed any functions for the defendant in the State of Florida.

Plaintiff filed an opposing affidavit executed by its purchasing agent reciting substantially those allegations contained in plaintiff’s complaint relating to the purchase order, delivery of and payment for the merchandise in question.

The trial court entered a judgment and order denying defendant’s motion to dismiss, essentially concluding that the plaintiff carried its burden of presenting facts sufficient to justify substituted service under sec. 48.181, F.S.

We agree with the order denying defendant’s motion to dismiss, but for reasons other than those set forth in the court’s judgment and order. Kephart v. Pickens, Fla.App.1972, 271 So.2d 163.

Although defendant seeks a reversal predicated primarily upon the contention that a single sale of goods to a Florida corporation does not constitute “doing business” within the meaning of sec. 48.-181, F.S., we do not perceive the disposition of this appeal to turn upon this determination. As it will, hopefully, more clearly appear later in this opinion, such a determination would be premature at this stage of the proceedings. The issue to be resolved is whether the plaintiff has met the burden of presenting facts sufficient to justify substituted service of process so as to withstand a motion to dismiss, i. e. has the plaintiff alleged (and proven) all requisite jurisdictional facts justifying the applicability of the long-arm statute, sec. 48.-181, F.S.

The courts have consistently observed that statutes relating to substituted service of process (in lieu of personal service of process) must be strictly construed; and the burden of proof to sustain the validity of substituted service of process rests upon the person seeking to invoke the provisions of such statutes. Viking Superior Corporation v. W. T. Grant Company, Fla.App.1968, 212 So.2d 331; Youngblood v. Citrus Assoc. of N. Y. Cotton Exch. Inc., Fla.App.1973, 276 So.2d 505; Fawcett Publications v. Rand, Fla.App.1962, 144 So.2d 512; Young Spring & Wire Corp. v. Smith, Fla.1965, 176 So.2d 903. It is plaintiff’s burden to plead (present) facts which clearly justify as a matter of law the applicability of the substituted service statutes in order to meet a legal challenge to such service. Young Spring & Wire Corp. v. Smith, supra; American Baseball Cap, Inc. v. Duzinski, Fla.App.197S, 308 So.2d 639. It is also plaintiff’s burden (at some stage of the proceedings) to prove the allegations warranting the application of the substituted service statute in order to overcome a competent challenge to such service. See Henschel-Steinau Company v. Harry Schorr, Inc., Fla.App.1974, 302 So.2d 198.

There are, therefore, two separate and distinct considerations (or burdens to be carried) in the determination of the applicability of the substituted service statute: (1) the legal sufficiency of the pleadings; (2) the legal sufficiency of the proof.

A defendant seeking to challenge the legal sufficiency of matters alleged in a complaint relating to the application of the long-arm statute may do so by filing a motion to dismiss (or abate) on the ground of lack of jurisdiction over the person. The motion, in essence, must be treated as admitting all facts properly pleaded pertinent to the conduct and activities of the defendant in the forum state and constitutes an assertion that as a matter of law such facts are nevertheless legally insufficient to demonstrate the applicability of the long-arm statute. It may be unnecessary for the defendant to do anything more than file a simple (unsupported) motion where the allegations of the complaint are legally insufficient. See Lyster v. Round, Fla.App.1973, 276 So.2d 186; Lake Erie Chemical Company v. Stinson, Fla.App. 1964, 162 So.2d 545; Nichols v. Seabreeze Properties, Inc., Fla.App.1974, 302 So.2d 139; cf. Fawcett Publications, Inc. v. Brown, Fla.App. 1962, 146 So.2d 899. However, a complaint may present jurisdictional facts which (when deemed admitted for the purposes of the motion) would be sufficient to withstand such motion.

The determination of the motion is based on a consideration of the facts reflected in the pleadings or apparent from the face of the record. The court determines whether the facts are sufficient as a matter of law to justify the application of the long-arm statute. See Nichols v. Seabreeze Properties, Inc., supra; see also Lyster v. Round, supra.

A defendant seeking to inject factual matters which do not appear on the face of the record is required to support the motion to dismiss with an affidavit, deposition or other proof. See Viking Superior Corporation v. W. T. Grant Company, supra. If the supporting proof reflects facts in opposition to or in contravention of those matters contained in the complaint the issue becomes then “one of proof” with the burden shifting to the plaintiff to dearly show by competent proof that the allegations of the complaint justify the application of the long-arm statute. For example where an affidavit is presented, reciting various activities and conduct in which a defendant does not engage in the forum state thereby negating or opposing the allegations of fact in the complaint, then the burden shifts to the plaintiff to present by opposing affidavit or other proof those material facts supporting the allegations in the complaint which, as a matter of law, would give rise to a determination that the defendant is “doing business” in the forum state.

Competent proof presented by a plaintiff may be evidenced by a sworn affidavit either reciting matters substantially alleged in the complaint or asserting with particularity specific facts which support a general allegation in a complaint. The evidence offered either by plaintiff or defendant must reflect mate'rial facts or facts legally pertinent to the determination of the issue of “doing business”. See Fawcett Publications v. Rand, supra; Young Spring & Wire Corp. v. Smith, supra; but see Harris v. Bean, Fla.App.1966, 182 So. 2d 464.

In the instant situation defendant’s motion to dismiss failed to overcome the legal sufficiency of the allegations contained in plaintiff’s complaint; and defendant’s affidavit in support of its motion did not contain statements of material fact requiring the plaintiff to come forth to substantiate by competent proof the jurisdictional allegations contained in its complaint. The defendant’s affidavit, although setting forth numerous instances of non-business activity in the State of Florida failed to address (negate or oppose) plaintiff’s allegation that the defendant “derives substantial revenue from the sale of items of tangible personal property . . directly ... to persons and firms within the State . . . ”; the affidavit makes no reference whatsoever to this allegation. There was no necessity, therefore, for the plaintiff to prove an allegation of fact which was not controverted by anything contained in the affidavit. For the purposes of withstanding a motion to dismiss a plaintiff is not required to prove a jurisdictional fact not at issue. Compare with Young Spring & Wire Corp. v. Smith, supra; Fawcett Publications v. Rand, supra; see also Harris v. Bean, supra.

Accordingly, defendant’s motion to dismiss and quash process was properly denied since the pleadings contained sufficient jurisdictional facts not otherwise put in issue by defendant’s affidavit.

If the plaintiff’s allegation that defendant derived substantial revenue from the sale of tangible items in Florida becomes a disputed factual issue, which plaintiff is unable to substantiate by competent proof, then all that remains for the plaintiff to rely on is the transaction involving the single sale and purchase of merchandise. We do not perceive that the single isolated act of defendant’s shipment of merchandise from Texas to the plaintiff in Florida constitutes “doing business” in Florida so as to invoke the application of the longarm statute. See Lyster v. Round, supra.

In particular, the present state of the record does not reflect that the subject transaction satisfies the criteria outlined in Horace v. American National Bank and Trust Co., Fla.App.1971, 251 So.2d 33. While a single transaction may, under certain circumstances, create “the necessary substantial connection with the forum state so as to make the exercise of jurisdiction reasonable and consonant with the due process tenets of fair play and substantial justice . . .”, Horace, supra, plaintiff’s complaint and affidavit show a single transaction having no substantial connection with the forum state within the contemplation of the circumstances discussed in Horace, supra. See also Southern Machine Company v. Mohasco Industries, Inc., 6 Cir. 1968, 401 F.2d 374; Lyster v. Round, supra.

In summary, from the present posture of the pleadings and proof the plaintiff at this stage of the proceedings has met the burden of presenting facts sufficient to justify the application of the long-arm statute. The trial court therefore properly denied defendant’s motion to dismiss and quash process; however, the court’s determination that it has jurisdiction to hear this matter based upon Horace v. American National Bank and Trust Co., supra, is, at present, premature and not supported by the record.

WALDEN, C. J., and OWEN, J., concur.

      . From the face of the purchase order attached to the complaint it appears that the purchase order was sent to defendant at a Dallas, Texas address.

      . Defendant also challenged the sufficiency of the process and the sufficiency of the service of process the validity of which contention were not raised in this appeal.

      . It is well settled that an appeal court will affirm an order of the trial court on appeal consistent with any theory revealed by the record, regardless of the reason stated in the order under review.

      . The statute invoked by the plaintiff in this cause, § 48.181, F.S., provides for substituted service of process upon nonresidents operating, conducting, engaging in or carrying on “a business or business venture in the state”.

      . Defendant’s challenge to the long-arm statute seeking dismissal because “the complaint fails to state a cause of action” is a misnomer. It is not the sufficiency of the plaintiff’s cause of action that the defendant seeks to challenge but rather the sufficiency of that which has been alleged so far as it bears upon the jurisdiction of the court over the person of the defendant. Hence the proper motion would be for dismissal (abatement) predicated upon lack of jurisdiction over the person. The parties’ amenability to the jurisdiction of the court may also be reached by a motion to quash for insufficiency of process or insufficiency of service of process. See Trawick’s Fla.Prac. & Proc., 1975 ed., § 8-22.

      . The proceeding before the lower court based upon complaint and motion, with affidavits or other proof, is in the nature of a “mini-trial” or “trial within a trial” in which the issue of the applicability of the long-arm statute is decided.

      . Specifically, the third criteria discussed in Horace, supra, at page 36, namely, that the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable has not been satisfied. The “substantial enough connection” is not satisfied by the dollar amount of the transaction. It is a determination to be made by an examination of the particular facts and circumstances of each case. Fawcett Publications v. Rand, supra, See also Horace v. American National Bank and Trust Co., supra.