author: HUBBART, Judge. PEARSON, Judge

text:
    NATIONAL INDEMNITY COMPANY, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL INSURANCE COMPANY, Appellee. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, etc., Appellant, v. The MacNEILL GENERAL AGENCY and Alan Boud Flack, Appellees.
    Nos. 77-1039, 77-1068.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.
    Rehearing Denied Nov. 2, 1978.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, for Nat. Indem.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for Pennsylvania Nat.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Bradford Swing, Miami, for McNeill Agency and Flack.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

The central question presented for review by these consolidated appeals is whether an insurance company can cancel an insurance policy previously issued to a Florida motor carrier regulated by the Florida Public Service Commission, when such policy has been filed with and approved by the Florida Public Service Commission, without first giving the Florida Public Service Commission 30 days notice under Section 323.06(3), Florida Statutes (1977). We hold that such 30 days notice is an essential prerequisite under the above statute for such an insurance cancellation. Accordingly, we reverse.

A

The facts of this case are substantially undisputed. In 1970 the Pennsylvania National Mutual Casualty Insurance Company (“Penn”) issued a motor vehicle liability insurance policy to Fargo-Anchor Moving & Storage, Inc. (“Fargo-Anchor”), a motor transport company currently regulated by the Florida Public Service Commission. On July 21,1970, Penn duly filed this insurance policy with the Florida Public Service Commission (then known as the Florida Railroad & Public Utilities Commission) which was approved. The certificate of insurance provided in part as follows:

“Such insurance shall not expire nor shall cancellation take effect until after thirty (30) days written notice has been given by the undersigned to the Florida Railroad and Public Utilities Commission at its office in Tallahassee, Florida.”

On January 28, 1971, at 12:01 a.m. Penn purported to cancel the above-stated insurance policy with Fargo-Anchor for nonpayment of premium by giving notice to Fargo-Anchor. Penn failed at that time, however, to give notice to the Public Service Commission of such cancellation. Subsequent thereto, on January 29, 1971, Fargo-Anchor obtained a replacement automobile liability insurance policy from National Indemnity Company (“National”) which in turn sent a certificate of insurance to the Public Service Commission on the same day. On February 5,1971, the Commission approved the above policy.

On February 18,1971, a vehicle owned by Fargo-Anchor collided with an automobile in Punta Gorda, Florida, resulting in the death of two people and certain personal injuries to two other people. At the time of this accident, both Penn and National had valid certificates of insurance on file and approved by the Public Service Commission. On March 17, 1971, Penn filed with the Public Service Commission a notice of its prior cancellation of insurance on Fargo-Anchor.

On August 13,1971, the surviving injured plaintiffs and the executrix of the estate of the deceased claimants filed suit on the subject accident against Fargo-Anchor, National and others [but not against Penn] in the Circuit Court for the Eleventh Judicial Circuit of Florida. Ultimately, the trial court ruled that National’s insurance policy did not provide coverage on the subject accident because of a certain geographical limit contained in the policy of insurance. This court reversed such a finding of no coverage. Vollmer v. Fargo-Anchor Moving & Storage, Inc., 288 So.2d 523 (Fla. 3d DCA 1974). Subsequent thereto, National settled with the plaintiffs herein on their claims in the amount of $106,074.07.

On June 6,1975, National filed a declaratory judgment action against Penn seeking a judgment in its favor for restitution or indemnification of the above settlement plus costs and attorney’s fees in the Circuit Court for the Eleventh Judicial Circuit of Florida. National contended in its complaint that Penn’s insurance policy on Fargo-Anchor was in effect at the time of the subject accident and that Penn should, therefore, be required to pay for some or all of the settlement judgment entered for the injured claimants herein.

Penn filed an answer denying that its policy with Fargo-Anchor was in effect at the time of the subject accident. In addition, Penn filed a second amended third party complaint against Frank R. MacNeill and Son, Inc. and its insurer Alan Boud Flack as one of the Underwriter’s of Lloyd’s of London, contending that if its insurance policy was in effect at the time of the subject accident, the third party defendant and his insurer were negligent in not properly notifying the Florida Public Service Commission because they were Penn’s authorized agent employed to perform such duties. MacNeill and its insurer filed a third party answer denying negligence and contending that the Penn insurance policy had been cancelled at the time of the subject accident.

Based on the above facts, all parties moved for summary judgment. The trial court granted the summary judgment in favor of Penn on the main action finding that the Penn policy was not in effect at the time of the subject accident. Based on the same ground, the trial court granted summary judgment in favor of MacNeill and its insurer on Penn’s third party complaint. National appeals from the summary judgment in favor of Penn on the main claim; and Penn takes a precautionary appeal from the summary judgment entered in favor of MacNeill on its third party action.

B

The decision in this case turns on an interpretation of Section 323.06(3), Florida Statutes (1977). All parties agree that at the time of the subject accident herein (1) Penn had failed to notify the Public Service Commission that its insurance policy on Fargo-Anchor had been previously can-celled for nonpayment of premium, and (2) National had filed and the Public Service Commission had approved another insurance policy on Fargo-Anchor. National contends that the Penn policy was in effect at the time of the subject accident because the above statute requires an insurance company to give the Public Service Commission 30 days notice before it can cancel a policy with a motor carrier regulated by the Public Service Commission. Penn and MacNeill counter that the above statute makes an exception to the 30 days notice requirement where, as here, the Public Service Commission has approved another insurance policy which covers the motor carrier in question.

Section 323.06(3), Florida Statutes (1977) provides in pertinent part as follows:

“No certificate or permit shall be valid until such bond has been filed and approved, and no such bond so accepted shall be canceled by the company issuing the same except upon SO days’ notice to the commission, and upon such notice being given by the company issuing said bond or bonds, the certificate or permit of the person or the corporation giving bond shall be revoked, unless a new bond shall be filed and accepted before the date for the cancellation of the said bond. However, the applicant may, in the discretion of the commission, be allowed to file in lieu of bond an insurance policy, which shall be approved by the commission, with some casualty or insurance company authorized to do business in the state.” [Emphasis added].

The statute means exactly what it says. No certificate or permit issued by the Public Service Commission to a motor carrier or other applicant regulated by said Commission shall be valid until a bond or insurance policy on such carrier has been filed with and approved by the Public Service Commission; no such bond or insurance policy can be cancelled by the underwriting surety or insurance company involved except upon 30 days notice to the Public Service Commission; upon such notice of cancellation being given by the surety or insurance company, the motor carrier’s certificate or permit to operate in this state shall be revoked unless a new bond or insurance policy is filed with and accepted by the Public Service Commission before the date of cancellation on the first bond or insurance policy. We are unable to read the “unless” clause in the statute to modify the 30 days notice provision as contended by Penn and Mac-Neill. The “unless” clause is separated from the 30 days notice provision in the statute by an intervening clause which provides for revocation of the motor carrier’s certificate or permit. The “unless” clause therefore modifies only the intervening and immediately preceding clause.

All agree that the 30 days notice provision in the statute is an exception to the general statutory prohibition against a surety or an insurance company cancelling a bond or insurance policy previously filed and approved by the Public Service Commission on a regulated Florida motor carrier. Only upon the surety or insurance company giving 30 days notice to the Public Service Commission can such a cancellation take place. If the “unless” clause is read as an exception to the 30 days notice exception (an awkward construction at best) as urged by Penn and MacNeill, we are back to the general rule prohibiting cancellation if the “unless” clause is applicable. No surety or insurance company could cancel their above-described bond or insurance policy by giving 30 days notice to the Public Service Commission if (as the “unless” clause provides) a new bond or insurance policy is filed with and accepted by the Public Service Commission before the date of cancellation on the first bond or insurance policy. In such event, the first surety or insurance company’s bond or insurance policy would be frozen indefinitely and could not thereafter be cancelled, a result which hardly furthers Penn and MacNeill’s cause. The legislature could not have intended such an unreasonable or absurd result, and we, therefore, decline to adopt the urged construction of the statute which leads to such a result. State Farm Mutual Automobile Insurance Co. v. O’Kelley, 349 So.2d 717, 719 (Fla. 1st DCA 1977); George v. State, 203 So.2d 173, 175-76 (Fla. 2d DCA 1967); Sharon v. State, 156 So.2d 677, 679 (Fla. 3d DCA 1963); State v. Willis, 124 So.2d 48, 51 (Fla. 1st DCA 1960).

We are supported in our decision herein by the analogous decisions of three other courts which have construed the above statute in much the same way as we do in this opinion. American Automobile Insurance Co. v. Pajor, 316 So.2d 612 (Fla. 4th DCA 1975); Kessler v. Pennsylvania National Mutual Casualty Insurance Co., 531 F.2d 248, fn. 9 (5th Cir. 1976); Midstate Hauling Co. v. Reliable Insurance Co., 437 F.2d 616 (5th Cir. 1971). In addition, Rule 25-5.31 of the Public Service Commission is in complete accord with our construction of the statute. Finally, Penn’s certificate of insurance for Fargo-Anchor itself provides that cancellation of the applicable insurance coverage herein could not take effect until 30 days written notice had been given by Penn to the Public Service Commission. We read the applicable statute to require precisely such a provision.

The summary final judgments under review are reversed and the cause remanded to the trial court for further proceedings in accordance with the views expressed in this opinion.

PEARSON, Judge

(dissenting).

I would affirm upon the principle that a legislative act should not be construed so strictly as to defeat the obvious and more plausible intention of the lawmakers. See the principles of law in Gracie v. Deming, 213 So. 294, 296 (Fla. 2d DCA 1968). Common sense would indicate that neither the motor carriers nor the public could expect two liability policies to exist at the same time in a situation such as this. Of course, the public eventually pays for the insurance policies deposited by motor carriers. Therefore, to hold a first insurer liable after the second insurer has been substituted and accepted by the regulatory body is waste. If the legislative language were so clear as to need no interpretation, then the courts could not substitute their judgment; but here, the language is not, in my view, so clear. I would follow the administrative interpretation of the statute shown by the acceptance of the new policy as a substitute. See Greyhound Lines, Inc. v. Yarborough, 275 So.2d 1 (Fla.1973); see also Blair Contracting Company v. Mason, 211 So.2d 15 (Fla.1968).

The close reasoning of the majority cannot be faulted by me. I also recognize that the cited case of American Automobile Insurance Company v. Pajor, 316 So.2d 612 (Fla. 4th DCA 1975), is authority for the majority decision. It is simply my view that the majority overlooks a higher legal principle.

      . This rule provides that cancellation of an insurance policy previously filed with and approved by the Public Service Commission shall not “take effect until after thirty (30) days notice in writing by the company shall have first been given to the Florida Public Service Commission at its office in Tallahassee, Florida, said thirty (30) days notice to commence to run from the date notice is actually received at the office of the Commission.” Fla.Admin.Code Rule 25-5.31.


source: Caselaw Access Project

author: KEHOE, Judge.

license: Public Domain

text:
    John FRITZ, etc., et al., Appellants, v. BELCHER OIL COMPANY, Appellee.
    No. 77-1296.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.
    Rehearing Denied Nov. 2, 1978.

      Haddad & Josephs and Gilbert A. Had-dad, Podhurst, Orseck & Parks, Susan Goldman, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.
    Before HAYERFIELD, C. J., and BARKDULL and KEHOE, JJ.

       Chief Judge Haverfield participated in the decision in this case but did not hear oral argument.

   KEHOE, Judge.

Appellants, defendants and counterplain-tiffs below, bring this appeal from a summary final judgment entered by the trial court on May 6, 1977, in favor of appellee, plaintiff and counterdefendant below. We reverse.

Appellee filed a complaint for declaratory judgment against appellants seeking a declaration of its rights and obligations under Section 607.157(4), Florida Statutes (1975), relating to appellants’ rights as shareholders to inspect and make extracts from books and records, etc., of appellee. The record shows that on April 26, 1976, appellants wrote to appellee stating that they were stockholders who owned in excess of 5% of the outstanding shares of the common stock of appellee and requested, pursuant to Section 607.157 to examine the books and records, etc., of appellee for the following purposes:

“The purpose of this inspection is to evaluate the current financial transactions of BELCHER OIL COMPANY and subsidiaries. The purpose is also to determine the financial impact which will occur to our stock in the Company by reason of the fact that Florida Power and Light Company did not renew its contract with BELCHER OIL COMPANY.”

A subsequent written demand by appellants to examine the books and records, etc., of appellee was made on June 30, 1976. According to this demand, appellants’ agent, a certified public accountant, had not been provided with the records and documents previously requested. Appellants, by this demand sought to examine certain specified records for following purposes:

“. The examination of the appropriate books of account and records relating to directors and specifically, the Carpenter and McKenzie transactions, are for the purpose of determining whether or not such transactions are in the best interest of the corporation.”
s(: * sfc ‡ $ ‡
“It should be noted that there has been a dramatic increase in expenditures for professional services since October 1973, and there has been a dramatic increase in salaries. Our clients, who are stockholders submitting the demand, therefore, wish to examine the appropriate books and records of account of Belcher Oil Company to determine the reasonableness of such executive salaries, as well as the reasonableness of such professional services.”

Another written demand to examine the books and records, etc., whose examination had been refused, was made by appellants on July 2, 1976.

Thereafter, appellants filed a separate mandamus action against appellee and its corporate officers to compel production of appellee’s books and records, etc., and for recovery of the 10% statutory penalty pursuant to Section 607.157. This proceeding was dismissed and appellants pursued their action by filing a counterclaim in the instant case.

In their counterclaim, appellants alleged, among other things, that they were shareholders of record of appellee of more than 5% of the outstanding shares of the company and had held such shares for a period in excess of six months prior to their written demands for examination of the books and records, etc., of appellee; that such written demands for examination were made on April 7, and 26, June 30, and July 2, 1976, for examination at a reasonable time of the books and records, etc.; that each demand was for a proper purpose described therein; that, contrary to Section 607.157(4) and (5), appellee had refused to allow them such examination; and that appellee had refused to comply with Section 607.157 by filing an action for declaratory judgment. Appellants’ counterclaim sought to have the trial court determine as a matter of law that the purpose for the demands made by them was proper; to determine as a matter of fact that there was a refusal within the meaning of Section 607.157; to determine the value of their shares on the date of the refusal and to assess appropriate damages together with the statutory 10% penalty; and to compel production of the books and records, etc.

In response to appellants’ counterclaim, appellee, among other things, filed an amended motion for summary judgment. As grounds for its motion, appellee stated that appellants lacked the requisite standing to prosecute their counterclaim because they were no longer holders of record of any of the outstanding shares of appellee; that, even if appellants had standing, it had complied with each and every reasonable request made by appellants; and that its filing a declaratory judgment action constituted good faith compliance with the requirement of Section 607.157. Thereafter, the trial court granted appellee’s motion for summary judgment and concluded that there was no genuine issue as to any material fact. From the summary final judgment entered by the trial court, appellants bring this appeal.

Among the points raised by appellants on appeal, we believe the following are dispositive of this appeal. First, in regard to the question of whether appellants had standing to prosecute their counterclaim, we are of the opinion that they did have such standing. There is no question in the record that appellants were shareholders of appellee and owned the requisite number of shares at the time each demand was made for examination of the books and records, etc. It was not until February 18, 1977, that appellants, pursuant to a tender offer, sold their shares in appellee. Appel-lee argues that by this conveyance, appellants lost their standing, thereby, rendering their counterclaim moot.

Our examination of Section 607.-157(4) and (5), Florida Statutes (1975), reveals that it was derived from and is substantially similar to current Section 52 of the Model Business Corporation Act. Section 52 of this Act was derived from Section 157.45, Chapter 32, of the Illinois Annotated Statutes, known as the Illinois Business Corporation Act, and the penalty provision contained within the Illinois Act was originally derived from Section 38 of the Illinois General Act promulgated in 1973. In our opinion, the Florida Legislature intended to adopt Section 607.157 as construed by the Illinois courts based upon the facts that the Illinois Statute constitutes the original source of Section 607.157 and the Illinois Statute are substantially identical. The Illinois court in interpreting Section 157.45, of the Illinois Act in the case of McCormick v. Statler Hotels Delaware Corporation, 55 Ill.App.2d 21, 203 N.E.2d 697 (1964), has held as follows:

“It seems clear, therefore, that one need not be a shareholder of a corporation at the time the case comes to trial, or even at the time the suit is filed. A properly qualified shareholder has a cause of action if he is refused permission to see the books and records for a proper purpose. What he does with the stock thereafter does not matter so far as the penalty is concerned. The ten percent fine is in the statute to punish corporate officers or a corporation which violates its legal duty to a shareholder to permit such shareholder to use the corporate books and records, including stockholder lists, for a proper purpose. That duty is breached when the refusal is made. A shareholder does not waive his right to sue for this breach of duty by subsequently selling his stock any more than one waives the right to sue for damages done to an automobile when he sells his car. The case is not a moot one.” Id. 203 N.E.2d at 701.

It is generally accepted that where a Florida statute is patterned after a statute of a sister state, particularly where a uniform law is involved, it is proper to rely upon judicial constructions placed upon the statute by courts of the sister state whose statute provided the “model.” Further, we note that Section 607.157 has not been interpreted by the courts of this State. See State v. Aiuppa, 298 So.2d 391 (Fla.1974); and James Talcott, Inc. v. Crown Industries, Inc., 323 So.2d 311 (Fla. 2d DCA 1976). Further, this promotes the uniformity of such laws. See Mason v. Avdoyan, 299 So.2d 603 (Fla. 4th DCA 1974).

Our review of the matter leads us to the opinion that, pursuant to Section 607.-157, a shareholder’s sale of his shares, which sale is made after a proper written demand for inspection, etc., and after a refusal for such inspection, etc., by a corporation, does not preclude his right to maintain an action for a penalty as provided within Section 607.157(4) and (5). Further, in our opinion such cause of action for a penalty accrues and remains from the time that a proper written demand was made and subsequently refused, i. e., the cause of action relates back to the time that a proper demand was made.

In the light of this determination, the second point which we will discuss relates to question of whether the filing of a declaratory judgment action by appellee constituted good faith compliance or a refusal under Section 607.157 warranting the imposition of a penalty. In response to appellants’ requests for inspection, appellee allowed appellants and their accountant to examine and make extracts from many fundamental corporate documents. It also provided appellants with a conference room in which to examine the documents and offered to photocopy any portion of those documents. Appellee did withhold some documents from appellants, but it never said that it would refuse to show these documents to appellants under any circumstances. Instead, appellee filed a declaratory judgment action asking the trial court to determine whether the withheld documents were “relevant books and records of accounts, minutes, and record of shareholders” that must be made available for inspection under Section 607.157. Appellee also agreed to make some of the withheld documents available for appellants if appellants would agree to keep them confidential. Further, as stated by appellee, Section 607.-157 has not been construed by a Florida court to specify precisely which documents are encompassed within the phrase “relevant books and records of accounts, minutes, and record of shareholders.” Additionally, as stated by appellee, it was aware that the courts of several other states with similar statutory provisions have indicated that not every corporate document comes within the meaning of the phrase set forth above.

Under these circumstances, it is our opinion that appellee’s action in seeking a declaratory judgment for judicial guidance was a rational one and should not in or of itself automatically constitute a refusal, thereby, warranting the imposition of the penalty provided for in Section 607.157. When, as here, a corporation has complied with Section 607.157 as far as it feels it legally can and then files a declaratory judgment in good faith, even though there may be a technical refusal, we do not think that this is the type of refusal contemplated within the statute which would require the automatic and mechanical imposition of a penalty. See Wood, Walker & Co. v. Evans, 461 F.2d 852 (10th Cir. 1972); McCormick v. Statler Hotels Delaware Corp., 55 Ill.App.2d 21, 203 N.E.2d 697 (1964); and Smith v. Chauvin, 212 So.2d 498 (La.App.1968). But see Miles v. Bank of Heflin, 295 Ala. 286, 328 So.2d 281 (1976). We think that the correct interpretation of Section 607.157 is that the trial court may award a penalty, in a sum up to ten percent of the value of a shareholder’s shares, but that such award is within the sound discretion of the trial court and that, in view of all the circumstances in a case, the award may be withheld if it would not serve the ends of justice.

This leads us to the third point which we must discuss. That point is whether, because of our determination that the filing of appellee’s declaratory judgment action was not an “automatic refusal,” a violation of Section 607.157 has occurred which would entitle appellants to the statutory penalty. This question was settled adversely to appellants by the trial court when it entered summary final judgment in favor of appellee. The question of appellee’s compliance with appellants’ requests and the relevancy of the documents, etc., requested for inspection presented the trial court with genuine issues of material fact which could not properly be resolved at this stage of the proceedings by summary judgment. We further note that not all of appellants’ discovery was complete at the time of the entry of the summary final judgment appealed. See, e. g., National Airlines v. Florida Equipment Co. of Miami, 71 So.2d 741 (Fla.1954); and Fla.R.Civ.P. 1.510.

Accordingly, for the reasons set forth above, the summary final judgment appealed is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: PER CURIAM.

text:
    Sol KITTAY et al., Appellants, v. Zena WEINKLE et al., Appellees.
    No. 77-1459.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1978.
    Rehearing Denied Nov. 2, 1978.
    Storace, Hall & Hauser and Andrew C. Hall, Miami, for appellants.
    Pred & Newman, Miami, Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appellees.
    Before HAYERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Hamilton v. Title Insurance Agency of Tampa, Inc., 338 So.2d 569, 571 (Fla.2d DCA 1976); Egidi Industrial Park Corp. v. Wide Open Spaces, Inc., 335 So.2d 870, 871 (Fla.3d DCA 1976); Federated Department Stores, Inc. v. Planes, 305 So.2d 248-249 (Fla.3d DCA 1974); Deemer v. Hallett Pontiac, Inc., 288 So.2d 526 (Fla.3d DCA 1974).


author: PER CURIAM. BERANEK, Judge,

text:
    Dennis SMITH, Appellant, v. HOME INSURANCE COMPANY and American Foreign Insurance Association, d/b/a A. F. I. A. Home Indemnity Company, Appellees.
    No. 77-2574.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1978.

      Larry Klein, and Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellant.
    Eugene L. Heinrich of MeCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and MOORE, J., concur.

BERANEK, J., dissents with opinion.

BERANEK, Judge,

dissenting:

This is an interlocutory appeal from an order vacating a default. The only proof in support of the motion to vacate the default was the sworn motion itself. This motion was sworn to by counsel of record and although counsel obviously had certain facts within his own personal knowledge, the affidavit contains numerous statements which could not have been within his personal knowledge. Realizing that speed was essential in the filing of the motion, I would reverse the trial court on the sole basis that the attorney’s affidavit supporting the motion was insufficient. I would, therefore, reverse and remand with instructions to allow the taking of supplemental evidence in support of the motion to vacate.


text:
    John T. HOCKER, Appellant, v. Marianne W. HOCKER, Appellee.
    No. 11-220.
    District Court of Appeal of Florida, First District.
    Oct. 5, 1978.
    D. Chanslor Howell of Howell & Deas, Jacksonville, for appellant.
    Samuel S. Jacobson of Datz, Jacobson & Lembcke, Jacksonville, for appellee.
   PER CURIAM.

The final judgment of dissolution appealed here is affirmed on both points. Ap-pellee/wife is provisionally awarded her appellate attorney’s fees and the case is remanded in accordance with this court’s opinion in Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st D.C.A. 1977).

McCORD, C. J., and MILLS and MELVIN, JJ., concur.


author: MELVIN, Judge.

text:
    O.K. MOVING & STORAGE CO., INC., Appellant, v. EGLIN NATIONAL BANK, Appellee.
    No. JJ-375.
    District Court of Appeal of Florida, First District.
    Oct. 5, 1978.

      C. Roger Vinson of Beggs & Lane, Thomas N. Tucker of Tucker & Worley, Pensacola, for appellant.
    C. LeDon Anchors of Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellee.
   MELVIN, Judge.

Appellant-plaintiff brings for review the summary final judgment entered in its suit against Eglin National Bank in which the trial court held that the bank was liable for only a portion of the funds represented by checks that had been improperly deposited by an employee of the appellant to her own account, when each check so deposited to her account was the subject of a restrictive endorsement, that is to say, on the back of each check was stamped “For Deposit Only, O.K. Moving & Storage Company, Inc., 80 Carson Drive, N.E., Fort Walton Beach, Florida 32548.”

The final judgment contains the following findings of fact:

“(1) Beginning with the check in the amount of $293.05 deposited on November 26, 1973, and continuing through December 17,1974 with the check deposited in the amount of $292.58, the defendant Eglin National Bank accepted checks made payable to O.K. Moving & Storage Company, Inc., and bearing a restrictive endorsement as follows:
‘For Deposit Only
O.K. Moving & Storage Company, Inc.,
80 Carson Drive, N.E.
Fort Walton Beach, Florida 32548’ and deposited the checks so endorsed into the individual account of Raye Walker. The total amount of the checks so accepted by the defendant Eglin National Bank was $19,356.01. As previously found by the Court, the defendant bank was negligent in so accepting and depositing the said checks, proximately causing the plaintiff’s loss of the aggregate amount thereof.
“(2) There is no evidence that the plaintiff had any contact of any nature with the defendant bank that would have induced the bank to accept, and so deposit the checks.
“(3) The defendant was placed on notice of the transactions involved in this case on or before September 1, 1975.
“(4) The plaintiff was negligent for not discovering the diversion of funds for such a length of time.”

The amount of the funds diverted by unauthorized deposits referred to approximated 15% to 20% of the total receipts of the payee at its Fort Walton Beach branch office. An official of the payee company testified that receipts in the Pensacola and Fort Walton Beach office for 1973-74 were lower than previous years, and he attributed this to “the recession and the little slowdown in the moving”. Further, it appears that the business consisted almost entirely of Government moving contracts for Eglin Air Force personnel. Payments from the Government were seldom received in less than three months and sometimes longer. The secretary of the Fort Walton Beach branch was instructed to deposit all receipts in the corporate account in a Pensacola bank. The company had no checking account in Fort Walton Beach.

We note the finding of the trial court that there was no evidence that the plaintiff had any contact of any nature with the defendant bank that would have induced the bank to open an account, accept the deposits, or to deposit the same in the manner in which they were deposited. The issue here is whether the failure of the plaintiff to discover, under the facts in this case, that the checks that had been restrictively endorsed and had been wrongfully deposited into the account of its employee for over a period of approximately 13 months constituted negligence that.would limit the plaintiff’s recovery in its action against the bank.

The bank argues that the conversion of the plaintiff’s funds continued over such a long period of time that the plaintiff should have discovered such embezzlement and its failure to discover constituted negligence that reduces the liability of the bank.

The plaintiff committed no act that would cause the bank to accept the restrictively endorsed instruments and deposit the same into the account of the plaintiff’s employee. Having committed no such act of inducement, there is no negligence on the part of the plaintiff that proximately caused the bank to conduct its operation as it did. In Fargo National Bank v. Massey-Ferguson, Inc., 400 F.2d 223 (8th Cir. 1968), the court held:

“ ‘. . . negligence of the payee effective to bar recovery must be such as directly and proximately affects the conduct of the bank, contributing to and inducing its acceptance of the forged endorsement itself.’ ” (at p. 227)

The court further held that the unbusiness-like manner in which the company conducted its affairs and lack of careful supervision over employees were facts too remote from the bank’s acceptance of the forged endorsements to be the proximate cause of loss resulting from such endorsements.

The bank leans upon the provision of Section 674.103(5) which in part provides:

“The measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount which could not have been realized by the use of ordinary care

Under the facts in this case, the provision of the statute quoted would have no application because of a complete absence of any act on the part of the payee to induce the bank to accept any one of the restrictively endorsed checks. In Miami Beach First National Bank v. Edgerly, 121 So.2d 417 (Fla.1960), the Supreme Court held:

“. . . It is the unconditional duty of the bank to pay the money only to the payee, or his order, and it is the responsibility of the bank, solely, to determine the genuineness of the endorsement and the identity of the person presenting the check for payment. . . . ” (at p. 419)

Earlier, the same court held in Lewis State Bank v. Raker, 138 Fla. 227, 189 So. 227 (1939):

“ ‘A bank, paying a check upon the unauthorized indorsement of the payee and charging the amount thereof to the drawer’s account, becomes liable to the payee for the amount of such check, unless the conduct of the payee excuses such payment, or prevents him from asserting such liability.’ ” (at p. 229)

See also 49 A.L.R.3d 843, Forgery By Debt- or’s Agent — Discharge, wherein the prevailing rule in the United States is stated to be:

“The right of the unpaid creditor to proceed directly against the collecting or drawee banks now appears to be clearly established, notwithstanding the contrary views of some earlier cases. It is generally said that the drawee bank’s payment of the check on a forged indorsement constitutes a conversion of the instrument as to the payee; and this view has been adopted by Uniform Commercial Code § 3-419(l)(c). [Sec. 673.419(l)(c), Fla.Stat. (1977)] Likewise, it is generally said that a bank which has obtained possession of a check upon an unauthorized or forged indorsement of the payee’s signature, and has collected the amount of the check from the drawee,, is liable for the proceeds thereof to the payee or other owner, notwithstanding that the proceeds have been paid to the person from whom the check was obtained, and notwithstanding that the payee’s signature was forged by his employee or agent, such cases taking the view that possession of the check on the forged or unauthorized indorsement is wrongful, and that when the money has been collected on the check, the bank can be held as for money had and received or in action for conversion.” (at p. 849)

The final judgment appealed from is REVERSED with directions to enter judgment in favor of O.K. Moving & Storage Co., Inc., for the total amount of checks so accepted by the bank, namely $19,356.01, together with interest thereon at the legal rate from the date and amount of deposit of each check, together with plaintiff’s costs.

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


author: HENDRY, Judge.

text:
    Thomas J. CONNELL and Gail M. Connell, Appellants, v. OTT RESEARCH & DEVELOPMENT, INC., Appellee.
    No. 77-2114.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Philip A. Holtsberg, Coconut Grove, Joseph M. Gersten, Miami, for appellants.
    Batchelor, Brodnax, Guthrie & Primm and Robert A. Freyer, Manners, Amoon & Whatley, Miami, for appellee.
    Before HENDRY, HUBBART  and KE-HOE, JJ.

       Judge Hubbart participated in the decision i: this case but did not hear oral argument.

   HENDRY, Judge.

Appellants/defendants, the makers of a promissory note in favor of First National Bank of Miami, take this interlocutory appeal from an order denying their motion to dismiss for lack of jurisdiction over the person in a subrogation action filed by ap-pellee/plaintiff, the guarantor of the promissory note. We reverse.

On April 25, 1969, appellants, then residents of Florida, executed and delivered a promissory note in favor of First National Bank of Miami. That same day, appellee entered into a separate contract of guarantee in favor of the bank in which they guaranteed the obligation of appellants. Appellants defaulted under the terms of the note on August 18,1971, by failing to make a payment then due. Pursuant to its contract of guarantee, appellee then became liable to satisfy the indebtedness.

On March 10, 1976, appellee filed what amounts to a subrogation action against appellants, who by that time had moved to Georgia and had become residents of that state. By this action, appellee sought reimbursement of the monies it had paid the bank toward the satisfaction of appellants’ obligation, in addition to interest, costs and attorney’s fees. Appellants were personally served in Georgia pursuant to Florida’s long statutes, Sections 48.193 and 48.194, Florida Statutes (1977). Subsequently, appellants moved to dismiss the complaint for lack of jurisdiction over the person on the ground that any cause of action accrued in favor of appellee prior to the effective date of the long-arm statutes. As such, appellants argued that the utilization of the personal service provision of Section 48.194 was ineffective as a means of gaining jurisdiction over their persons. The trial judge entered an order denying the motion to dismiss and this appeal follows.

It has been clearly determined that Florida’s long-arm statutes are not retroactive in application. International Graphics, Inc. v. MTA-Travel Ways, Inc., 71 F.R.D. 598 (S.D.Fla.1976); Barton v. Keyes Company, 305 So.2d 269 (Fla.3d DCA 1974). Sections 48.193 and 48.194 became effective on July 1,1973. The accrual of the cause of action in favor of appellee, as guarantor of the note, occurred at the time it answered its obligation on the debt by paying same according to the tenor of the note — sometime in 1971. See United States v. Continental Casualty Co., 512 F.2d 475 (5th Cir. 1975); 38 Am.Jur.2d Guaranty § 127 (1968). Sections 48.193 and 48.194 are therefore not available to appellee as a means of gaining jurisdiction over appellants.

In addition, we note that notwithstanding the applicability or inapplicability of the long-arm statutes, the complaint, itself, was defective in that appellee failed to clearly plead the jurisdictional basis for service upon the non-resident appellants as required by law. Yachts v. Ray Richard, Inc., 347 So.2d 779 (Fla.3d DCA 1977).

Accordingly, the trial judge erred in denying appellants’ motion to dismiss the complaint for lack of jurisdiction over the person.

Reversed and remanded for further proceedings.

      . We have not been called upon to determine whether the former long-arm statute, now repealed, Section 48.182, in effect at the time of the accrual of the cause of action, or Section 48.181, still in effect, could be utilized by appel-lee sub judice as a means of gaining jurisdiction over appellants. We leave those avenues open for appellee’s consideration in light of International Graphics, Inc. v. MTA-Travel Ways, Inc., supra.


author: BARKDULL, Judge.

text:
    Samuel GILES, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1155.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.

      Samuel Giles, in pro per.
    Robert L. Shevin, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   BARKDULL, Judge.

By this appeal, the appellant seeks to review an order of the trial court which summarily denied his motion to vacate pursuant to Florida Rules of Criminal Procedure 3.850.

The principal thrust of his sworn motion is that upon conferring with the public defender assigned to his case, he was led to believe that he didn’t stand a chance at trial and that, in return for a plea of guilty, he would be given probation; that, upon being so informed, he did in fact withdraw his plea of not guilty and pleaded guilty to the charge of obtaining property in return for a worthless check, in violation of Section 832.-05(3), Florida Statutes (1975). He was given probation, which was subsequently revoked. He further alleged that the public defender misrepresented his defense, in that he did in fact have a valid defense to the charge, in that the check was accepted with full and prior knowledge that it was worthless. Thus, the appellant contends his guilty plea was not freely and voluntarily given with full knowledge.

The motion on its face, sworn to as true by the appellant, in absence of a direct denial in the record, states a ground for relief under Florida Rules of Criminal Procedure, 3.850, sufficient to require a hearing at which the appellant would have the opportunity to present evidence to sustain (if he could) his allegations of fact. Reddick v. State, 190 So.2d 340 (Fla.2d DCA 1966); Bartz V. State, 221 So.2d 7 (Fla.2d DCA 1969). The record before this court does not show conclusively that the appellant is entitled to no relief, based on the allegations of his sworn motion. Thus, pursuant to the provisions of Florida Rules of Appellate Procedure 9.140(g), we are compelled to reverse the trial court and remand the cause for a hearing. In so doing, we repeat what has been said previously. Where cases have been reversed for evidentiary hearing, if the evidence at such hearing should develop to the satisfaction of the trial judge that there was never any basis in fact for the sworn allegations as made, we would strongly recommend consideration by the trial court or state attorney of either prosecution for perjury or citation for contempt. Breamfield v. State, 166 So.2d 484 (Fla.3d DCA 1964); Thomas v. State, 210 So.2d 488 (Fla.2d DCA 1968); Bartz v. State, supra; Bumgarner v. State, 245 So.2d 635 (Fla.4th DCA 1971).

The order appealed from is thereupon reversed, with directions to the trial judge to conduct an evidentiary hearing on the allegations contained in the appellant’s motion, and then either grant or deny the relief sought by the appellant.

      . Payne v. State, 362 So.2d 688 (Fla.2d DCA 1978), opinion filed September 8, 1978.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Gertrude Lucille BRUNER, Appellant, v. Merle BAILEY, June Rae Bailey, Calder-Escharte, Inc., and Coral Gardens Condominium Assoc., Inc., Appellees.
    No. 77-230.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Christopher B. Knox of Burdick & Dona-hoe, Fort Lauderdale, for appellant.
    Richard G. Gordon and Paul D. Lucas of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellees.
   PER CURIAM.

Upon consideration of the record and briefs of counsel for the respective parties, we determine the only error having been made to appear was in the trial court’s entering summary final judgment on count two (negligence) of the complaint, as genuine issues of material facts exist. Accordingly, summary final judgment as to count two is reversed. In all other respects, the order is affirmed.

Affirmed in part, reversed in part, and remanded.

CROSS and ANSTEAD, JJ., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent. Count two of the complaint attempts to allege a negligent act or acts on the part of the corporate appel-lees which caused injury to the appellant. In my opinion that count fails to state a cause of action upon which damages could be awarded properly. I should affirm the trial court in all respects.


author: DAUKSCH, Judge.

text:
    Kenneth Paul KOVARNIK, Appellant, v. ROYAL GLOBE INSURANCE CO. et al., Appellee.
    No. 77-983.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.

      Mark P. Lang, T. G. LaGrone, Orlando, for appellant.
    J. Richard Caldwell, Jr. of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellee.
   DAUKSCH, Judge.

The plaintiff in the lower court seeks our review of a summary final judgment in favor of the defendant in a suit by an insured against his no-fault automobile liability insurance carrier for recovery of personal injury protection benefits. We find that there exists a genuine issue of material fact precluding the entry of summary judgment and we therefore reverse.

The plaintiff was injured during the course of his employment as a truck driver when the company car he was operating was struck by another vehicle. The benefits he received, by way of “wash out,” from his employer’s workmen’s compensation carrier were not sufficient to cover his losses, so he sent a claim to his own no-fault carrier for personal injury protection benefits. The carrier’s claims examiner replied by letter in the following manner:

This will acknowledge receipt of your letter of January 27 (sic), 1976 addressed to our New York Office.
As I review the No-Fault form which you have forwarded, it appears that your client was injured during the course of her (sic) employment. At least that seems to be the way she (sic) answers that particular question on the P.I.P. application.
For that reason, of course, we cannot entertain this as a No-Fault claim since Workman’s Compensation would be responding to this claim.
Should you have any information that I don’t have which would indicate otherwise, I would appreciate your contacting me.

The plaintiff then mailed his final letter to his no-fault carrier confirming receipt of what he interpreted to be a denial of his no-fault claim and advising that he now had no alternative but to proceed with his own remedies. On the same day the plaintiff settled with the tortfeasor without having given prior notice to, or having received consent from, the plaintiff’s own no-fault carrier. Shortly thereafter, the plaintiff’s no-fault carrier did acknowledge its coverage as excess over the workmen’s compensation benefits received by plaintiff, but upon later notification that the claim against the tortfeasor had been settled the carrier immediately advised that it would not honor the plaintiff’s claim for P.I.P. benefits. The ensuing litigation resulted in a summary final judgment in favor of the no-fault carrier, from which plaintiff appeals.

We note initially that plaintiff’s no-fault carrier would not be justified in denying P.I.P. benefits to the plaintiff merely because plaintiff may have also been entitled to workmen’s compensation benefits. See Comeau v. Safeco Ins. Co. of America, 356 So.2d 790 (Fla.1978); Davis v. Travelers Imdemnity Co., 356 So.2d 794 (Fla.1978). Although a claimant cannot receive both workmen’s compensation benefits and P.I.P. benefits in such a manner as to be over compensated for the same injury; still workmen’s compensation benefits received by a claimant do not decrease the total amount of P.I.P. coverage available under the policy. If workman’s compensation benefits are available, P.I.P. benefits are still primary; however to the extent that payments of workmen’s compensation are made, P.I.P. benefits are supplemental until either the injured party has been fully compensated or until the P.I.P. carrier has paid its policy limits. Most importantly here, is that P.I.P. benefits and workmen’s compensation benefits are concurrent and exhaustion of workmen’s compensation benefits is not a prerequisite to receiving P.I.P. benefits. Fine v. Travelers Ins. Co., 342 So.2d 848 (Fla. 3d DCA 1977); Charter Oak Fire Ins. Co. v. Regalado, 339 So.2d 277 (Fla. 3d DCA 1976). Therefore the defendant’s initial response to plaintiff’s claim for P.I.P. benefits, if it could be reasonably interpreted as an unequivocal denial of coverage, would be a wrongful denial of coverage.

The final summary judgment below was predicated on plaintiff’s failure to notify and receive consent from his no-fault carrier before settling with and releasing the third party tortfeasor. The cases cited by the no-fault carrier in support of the lower court’s judgment involved specific policy provisions (“consent clauses”) which excluded coverage when the insured settled with the tortfeasor without the carrier’s prior consent, or when the insured did anything to prejudice the carrier’s subrogation rights. However in the present case, the parties stipulate that the insurance policy contained no consent clause similar to that described above. This being so, we are unable to follow the reasoning of the trial court in concluding that the plaintiff breached a duty to notify his no-fault carrier before settling with the tortfeasor. No statutory law has been cited which requires consent by the no-fault carrier before the insured settles with the tortfeasor. It seems as if the lower court has injected an exclusionary “consent clause” into this policy as a matter of law. However, we base our reversal on a narrower issue.

Assuming that a duty does exist to notify the carrier before settling with the tort-feasor, even in the absence of a policy “consent clause,” we are faced with the question of what effect the carrier’s wrongful denial of coverage might have on such a duty. Although the question is one of first impression in Florida, the jurisdictions which have considered the matter have uniformly held that once the insurance carrier has denied coverage, it has waived any requirement (or is estopped from asserting any requirement) of prior notice and consent before the insured settles with the tort-feasor. Employers Nat’l Ins. Co. v. Parker, 286 Ala. 42, 236 So.2d 699 (1970); Porter v. Empire Fire and Marine Ins. Co., 12 Ariz. App. 2, 467 P.2d 77 (Ct.App.1970), vacated on other grounds, 106 Ariz. 274, 475 P.2d 258 (1970), modified on other grounds, 106 Ariz. 345, 476 P.2d 155 (1970); Calhoun v. State Farm Mut. Auto Ins. Co., 254 Cal. App.2d 407, 62 Cal.Rptr. 177 (1st DCA 1967); Shook v. Hertz Corp., 349 A.2d 874 (Del.Super.Ct.1975); Porter v. Travelers Indemnity Co., 313 So.2d 641 (La. 3d CCA 1975), cert. denied, 318 So.2d 51 (La.1975); Gay v. Preferred Risk Mut. Ins. Co., 114 N.H. 11, 314 A.2d 644 (1974); Vanguard Insurance Co. v. Polchlopek, 18 N.Y.2d 376, 275 N.Y.S.2d 515, 222 N.E.2d 383 (1966); Childs v. Allstate Ins. Co., 237 S.C. 455, 117 S.E.2d 867 (1961). See generally 25 A.L. R.3d 1275, 1291. (We note that each of these eases involved specific consent clauses in the policy of insurance). The underlying rationale throughout this line of cases is that an insurer may not repudiate a policy, deny liability thereon, and at the same time be permitted to stand on the failure to comply with a provision inserted in the policy for its own benefit. Some of these cases speak in terms of implied waiver, while others speak in terms of equitable estoppel. Whatever the nomenclature, these cases are premised on equitable principles which we find to be applicable to the case under consideration.

The insurance carrier maintains, and the lower court apparently agreed, that its initial response to the plaintiff’s claim for P.I.P. benefits cannot be reasonably interpreted as an outright denial of coverage. We would agree that the carrier’s initial response is not so unequivocal that, as a matter of law, it should be held to be a wrongful denial of coverage. But by the same token, reasonable minds could differ and we cannot say that, as a matter of law, plaintiff’s interpretation of this letter as being a denial of coverage was unreasonable (especially when all permissible inferences are viewed in a light most favorable to the plaintiff on defendant’s motion for summary judgment.) Herein lies the genuine issue of material fact which precludes summary judgment and mandates our reversal. If the plaintiff reasonably relied on this letter as a denial of coverage (which denial would have been wrongful as discussed above), then the principles of equitable estoppel would apply under the case authorities cited above and the defendant could not rely on plaintiff’s failure to notify before settling with the tortfeasor. Under the facts of this case the issue is one for determination by the trier of fact.

Accordingly the final summary judgment is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

DOWNEY, C. J., and MOORE, J., concur.

      . Even when such a policy provision does exist, it is strictly construed against the insurance company as the draftsman since it tends to discourage settlements and avoid liability. Carter v. American Fire and Casualty Co., 219 So.2d 462 (Fla. 4th DCA 1969); Kaplan v. Phoenix of Hartford Ins. Co., 215 So.2d 893 (Fla. 3d DCA 1968), cert. denied, 220 So.2d 365 (Fla.1969).


text:
    Donald MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 77-1050.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Richard L. Jorandby, Public Defender, Harvey R. Schneider, Asst. Public Defender and Michael Lee, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond, Asst. Atty. Gen., and Kenneth G. Spillias, Legal Intern, West Palm Beach, for appellee.
   DAUKSCH, Judge.

We have for consideration an Order denying the defendant’s motion to dismiss filed under Florida Rule of Criminal Procedure 3.190(c)(4). This rule allows a type of summary judgment in the administration of criminal law by providing, inter alia; “. . . the court may at any time entertain a motion to dismiss on any of the following grounds:

(1) The defendant is charged with an offense for which he has been pardoned; or
(2) The defendant is charged with an offense of which he has previously been placed in jeopardy; or
(3) The defendant is charged with an offense for which he has previously been granted immunity; or
(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. The facts on which such motion is based should be specifically alleged and the motion sworn to.”

In this case the defendant pleaded nolo contendere after the court denied his motion to dismiss and specifically reserved his right to appeal that order. The court placed the defendant on probation and he appeals as authorized in Chapter 924, Florida Statutes (1977). We note, first of all, the defendant was placed on probation for a period of two years for the crime of attempted grand larceny. Since attempted grand larceny is a misdemeanor of the first degree the sentence is excessive by one year. The maximum sentence, probation and/or confinement, cannot exceed the maximum for which the defendant could have been confined. Myers v. State, 347 So.2d 1053 (Fla. 4th DCA 1977).

The dispositive question, however, is whether the trial court erred in not granting the motion to dismiss. We must find error and reverse.

The motion of the defendant set out the facts alleged by the defendant to be the only evidence against him. He said those facts are insufficient to establish a prima facie case of guilt against him. Here are the facts alleged in the motion:

(a) That on May 29, 1976, in the early morning hours a 1975 Buick automobile owned by Larry Earl Miller was broken into and approximately one hundred and fifty dollars ($150.00) was taken. The money was taken from the glove compartment of the vehicle. Larry Earl Miller testified that he parked the vehicle at approximately 5:30 A. M. in the vicinity of his residence located at 2054 Jacobs Place, Orlando, Florida.
(b) That there are no witnesses who saw any individual break and enter Larry Earl Miller’s vehicle. Additionally, there are no witnesses who are able to place any individual in the vicinity of the above car at the time of the alleged breaking and entering.
(c) That the only evidence of any nature against DONALD MOBLEY consists • of his fingerprints having been found on the front passenger door glass window in the upper rear corner of the glass. These latent prints were lifted by Officer Stone of the Orlando Police Department. The latents were later identified by Officer F. E. Hitechew of the Orlando Police Department as belonging to DONALD MOBLEY.
(d) That Larry Earl Miller testified at his deposition he was a close friend of the Defendant for approximately seven (7) years. He additionally testified that the Defendant had ridden in his car on numerous occasions as a passenger in the front seat of the vehicle. He further testified that on May 20,1976, the Defendant had ridden with him to work. Mr. Miller then testified that he exited the vehicle at his place of work and requested that the Defendant run an errand for him in his 1975 Buick automobile. The Defendant was then given possession of this vehicle and drove the ear to a dry cleaners- and picked up some clothing for Mr. Miller. The car was later returned to the victim on the same day.
(e) Larry Earl Miller then testified that he parked his car in front of his residence at approximately 5:30 A. M. on May 29, 1976. He stated that he did not see anyone enter or exit his vehicle and did not determine that anything was taken until 7:30 A. M. that same day.
(f) That under the circumstances set forth above, in no event can the State of Florida meet the requirement established by the Florida case law that the circumstances must be such that the print could only have been made at the time of the crime as opposed to some other point in time.

The State filed a demurrer which said “That the Facts and other matters alleged as grounds in support of said Motion, and each and every count or part thereof, are not sufficient in law to constitute lawful grounds for dismissal of this cause.”

The only evidence against the Defendant is that his fingerprints were found on the glass window. That evidence directly proves his fingers were on the glass at some time. It is circumstantial evidence the prints were placed there at the time the break into the car occurred and that the defendant was the burglar. It is legally insufficient evidence to prove even a prima facie case that the defendant was the burglar because in order to convict a person of a crime where the evidence is only circumstantial the evidence must be not only consistent with guilt but inconsistent with innocence. Wright v. State, 348 So.2d 26 (Fla. 1st DCA 1977).

Because the defendant was a lawful occupant of the car shortly before the burglary occurred it is quite reasonable to hypothesize the prints were placed there at a time before the burglary and not at the time of the burglary. That is a reasonable hypothesis of innocence from which defendant should have been given the benefit of the doubt. See also Knight v. State, 294 So.2d 387 (Fla. 4th DCA 1974); Williams v. State, 308 So.2d 595 (Fla. 1st DCA 1975); and Florida Standard Jury Instructions in Criminal Cases 2.14. Because the evidence failed to establish a prima facie case of guilt the court should have dismissed the information.

The order placing the defendant on probation is reversed.

REVERSED.

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.


author: DOWNEY, Chief Judge.

text:
    James Arthur MOSLEY and a 1972 Chevrolet Monte Carlo, Vin: IH575H2B44883, Appellants, v. STATE of Florida ex rel. BROWARD COUNTY, Florida, for the use and benefit of Broward County Sheriffs Office, Appellee.
    No. 77-1239.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Sheldon M. Schapiro of Stone & Schapiro, Hollywood, for appellants.

      Robert L. Shevin, Atty. Gen., Tallahassee, John D. Cecilian and Benedict P. Kuehne, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

On July 21, 1976, at about 2:15 p. m., Carrie Jones, a confidential informant, under surveillance by two deputy sheriffs, approached a gold Monte Carlo automobile parked near Tony’s Bar. Appellant and another male were seated in the vehicle; Carrie talked to the occupants of the vehicle and then returned to the ear in which the deputies were located, obtained $20 and returned to the Monte Carlo. In the meantime appellant exited the driver’s side of the Monte Carlo and walked around the side of a building nearby and returned within a minute. When Carrie returned to the Monte Carlo she was given two tinfoil packets of heroin in return for the $20. These packets were turned over to the deputies, marked and eventually analyzed chemically, proving to be heroin.

On July 29, 1976, one of the deputies observed appellant just west of Tony’s Bar at approximately 2:00 p. m. The deputy arrested appellant for the heroin transaction on July 21st and he and another deputy proceeded to “inventory” the gold Monte Carlo legally parked about thirty feet away from where appellant was arrested. They found twenty-six packets of heroin in the car. The deputies “inventoried” the car as they were going to tow it in due to its involvement in the July 21st heroin transaction.

The appellee commenced this proceeding to forfeit the gold Monte Carlo owned by appellant. After hearing the evidence adduced, the trial court ordered the vehicle forfeited pursuant to Sections 943.41-943.-44, Florida Statutes (1977), the Florida Uniform Contraband Transportation Act.

The thrust of appellant’s attack upon the judgment appealed from is that the search of appellant’s car on July 28th was unlawful and violated appellant’s Fourth Amendment rights, that the search was not incident to a lawful arrest, and, therefore, a forfeiture of the vehicle based upon the fruits of the July 28th search can not stand.

We do not quarrel with appellant’s contention that the July 28th search was unlawful and that, if the forfeiture were based on the fruits of that search, the forfeiture too would be unlawful. However, we believe the vehicle was subject to forfeiture for the heroin transaction which took place on July 21st and the mere fact that the car was not seized on that date, but eight days later, is of no consequence because the statute of limitations for forfeiture proceedings is four years. Section 95.-ll(3)(n) Florida Statutes (1975).

Sections 943.41-943.44 constitute the Florida Uniform Contraband Transportation Act. It was the intention of the Legislature that the passage of this Act would facilitate “ ‘uniformity between the laws of Florida and the laws of the United States’ which was ‘necessary and desirable for the effective drug abuse prevention and control.’ ” The Legislature intended that the Florida forfeiture statute be uniform with the federal counterpart. Accordingly, it is most appropriate that we consider the federal cases construing the uniform act as well as our own Florida cases.

In Griffis, recently decided by the Florida Supreme Court, it was held that it was not the purpose of this statute to authorize vehicle forfeiture for mere personal possession and consumption of controlled substance. Rather, the court found that the Act was intended to stifle drug trafficking. The Supreme Court spoke of “drug trafficking operations”, but approved the Third District Court of Appeal’s terminology allowing forfeiture of vehicles “significantly involved in a criminal enterprise.” Other cases have resorted to the statutory language authorizing forfeiture when a vehicle is being used “to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.”

In United States v. One 1950 Buick Sedan, 231 F.2d 219 (3rd Cir. 1956), a narcotics agent and an informant entered a car owned by Gaskins as it stopped for a traffic light. The agent advised Gaskins he wanted to buy one-sixteenth of an ounce of heroin. Gaskins agreed to get it for him and told the agent to meet him shortly thereafter at a specific bar. The agent exited the car. Gaskins drove away and later delivered the contraband to the agent in the designated bar. The trial court held that the government had not proven that Gaskins had used the vehicle in question to either transport or facilitate the sale of narcotics. The Circuit Court of Appeals reversed, holding:

“The facts and circumstances presented by the government and accepted by the district court showed that the arrangements for the sale and the handing over of the purchase money occurred in the automobile. The appellees have urged that this does not mean the automobile ‘facilitated’ the sale within the meaning of the statute. The use of the automobile, they say, was incidental because the negotiations and the payment could easily have taken place on the sidewalk outside the car. The term ‘facilitate’ is a term used in everyday transactions between people. There is no indication that Congress ascribed to this word any meaning other than its ordinary and accepted meaning. Webster defines facilitate as ‘to make easy or less difficult; to free from difficulty or impediment; as, to facilitate the execution of a task.’
“The question then is whether there was a reasonable ground for belief that the use of the automobile made the sale less difficult and allowed it to remain more or less free from obstruction or hindrance.
“Negotiations for an illegal sale of narcotics do not take place openly and publicly. It is always convenient that some degree of privacy attend all phases of the sale. The automobile certainly proved a convenient place for conversation and payment. Of course, the parties might have talked on the sidewalk. By the same token, they could have transacted their business in a million other places. But that does not mean that the automobile did not facilitate the sale. The ap-pellee’s argument might have substance had the negotiations and payment taken place in an automobile parked in the middle of the desert miles away from any place or anyone, for then it would be doubtful whether the fact of negotiations and payment in rather than outside the automobile made the transaction less difficult or allowed more freedom. But the automobile here was parked in a street in the City of Philadelphia at 2 p. m. Under those circumstances, a reasonable belief is certainly warranted that the automobile facilitated the sale.” Id. at 222.

The episode under consideration in the case at bar involved the use of the vehicle in question to facilitate the sale and delivery of contraband. While it appears that appellant departed his car to procure the illicit drug, the negotiations therefor, the delivery thereof, and payment were all accomplished in the semi-privacy of the subject vehicle.

We think the 1950 Buick Sedan case, supra, is particularly significant because it involved a single sale. We mention that because the use of the word “operation” in Griffis, supra, and “enterprise” in Porsche and Camaro, supra, might lead one to believe the statute in question applies only to large organized operations or enterprises. Though the statute surely applies to them, it also is intended to eliminate the single dope peddler who is trafficking in illicit narcotics. We hold that the sale or delivery of heroin from an automobile as we have here constitutes trafficking in drugs.

Accordingly, the judgment declaring a forfeiture of appellant’s motor vehicle is affirmed.

AFFIRMED.

ANSTEAD and DAUKSCH, JJ., concur.

      . Griffis v. State, 356 So.2d 297, 299 (Fla. 1978).

      . Id. at 299.

      . Id.

      . Id. at 302. See Nichols v. State, 356 So.2d 933 (Fla. 2nd DCA 1978).

      . In re Forfeiture of 1969 Chevrolet Camaro, 334 So.2d 82 (Fla. 3rd DCA 1976); In re Forfei

        ture of 1972 Porsche, 307 So.2d 451 (Fla. 3rd DCA 1975).

      . Section 943.42(3), Florida Statutes (1977).

      . In Platt v. United States, 163 F.2d 165, 167 (10th Cir. 1947), the court held that what is meant by the word “facilitate” is that if an automobile is used to assist in the commission of the crime, it is subject to forfeiture.


author: LETTS, Judge.

text:
    Georgia HAINES, Appellant, v. SOUTHERN LIFE AND HEALTH INSURANCE COMPANY, and Coastal States Life Insurance Company, Appellees.
    No. 77-1244.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., and George B. Mehlman, West Palm Beach, for appellant.
    Nancy J. Cliff and Edward N. Winitz of Thornton, Conroy & Herndon, Miami, for appellee — Southern Life & Health Ins. Co.
    Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach for appel-lee — Coastal States Life Ins. Co.
   LETTS, Judge.

This appeal arises from a summary judgment upholding the denial, by two insurance companies, of accidental death benefits because the insured took 120 days from the date of the accident to die and the policy terms required death within 90 days. We affirm.

The appellant concedes that the present law in Florida, articulated by the Second District, would uphold such 90 day limitations. Stinchomb v. Mutual Life Insurance Company of New York, 305 So.2d 84 (Fla.2d DCA 1974), cert. den., 318 So.2d 402. In Stinchomb the facts involved a leg amputation which occurred some 73 days beyond the allowable 90 days. As that court said:

We cannot blame appellant and his doctor for having delayed the amputation in the vain hope the leg might be saved.

However, the court also said:

If the language in an insurance policy is sufficiently plain and unambiguous there is no occasion to apply the rule of construction which requires ambiguities to be construed against the insurer.

In the case at bar, the language of the policies is likewise plain and unambiguous and while we do not like the result, we cannot strike down the clear terms of these contracts, unless they are void as being against public policy. We have sympathy for the proposition that one who buys a policy for accidental death, should get paid off if he dies from such an accident, regardless of the time he takes to do so, while fighting to save his life and, therefore, the Insurance Company’s money. Nevertheless these contracts are valid on their faces.

Appellant urges that such limitations are indeed against public policy because they inject into the “agonizing, difficult and delicate deliberations of the treating physicians and family of a mortally injured person, a potentially sinister economic factor suggesting nontreatment.” In plain language it is suggested that the family of the stricken victim might either “pull the plug”, or never plug it in, to get the insurance money. This argument is not without support in the law and two jurisdictions, Pennsylvania and New Jersey, have recently adopted this theory. See Burne v. Franklin Life Insurance Company, 451 Pa. 218, 301 A.2d 799 (1973), and Karl v. New York Life Insurance Company, 139 N.J.Super. 318, 353 A.2d 564 (1976).

Predictably the insurance companies argue that the policies are not against public policy because some bureaucrat in Tallahassee has approved the forms. We reject that theory. However, it is true that public policy considerations require of the state an affirmative duty to preserve life. Satz v. Abe Perlmutter, 363 So.2d 160 (Fla.4th DCA, Case No. 78-1486, Opinion filed September 13, 1978). Notwithstanding, there is no showing of any tendency on the part of the public to engage in murder or suicide in order to defeat the time limitations and collect on accident insurance. Accordingly, any change must come from the legislature. Even then, we suggest there would always have to be some time limitation, otherwise our already overcrowded courts will be further cluttered by claims that a football injury, of 20 years before, caused confinement to a wheelchair which, in turn, caused total failure of other vital organs. A line must be drawn somewhere.

We would stress that so far as the record reveals, we are not presented with an insured who, from the moment of his accidental misfortune, lay in a continuing coma or had his life maintained solely by reason of some mechanical device. The record reveals only that the appellant was involved in an accident which it is admitted he died of 120 days later. From such a record, the cause must be affirmed.

AFFIRMED.

MOORE and BERANEK, JJ., concur.


text:
    Daniel WEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1365.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals his conviction of aggravated assault. We affirm.

In closing argument the prosecutor commented on the fact that a particular witness had not testified and was conveniently out of the State. Defendant objected but did not move for a mistrial. On appeal defendant asserts fundamental error and contends the trial court should have declared a mistrial.

The issue in the case was whether the defendant had used a knife in a fight. Defendant and another defense witness testified that the absent witness was the real knife wielder. The prosecutor’s comment about the absence of the witness who had obvious knowledge concerning this fact was thus proper argument. The defendant himself injected this issue and cannot now complain that the State was precluded from mentioning the absence of the witness. Buckrem v. State, 355 So.2d 111 (Fla.1978); Allen v. State, 320 So.2d 828 (Fla. 4th DCA 1975); Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1957).

The judgment is affirmed.

ANSTEAD, DAUKSCH and BERANEK, JJ., concur.


text:
    Miles Herbert MARTIN, Jr., Appellant, v. Shirley Davis MARTIN, Appellee.
    No. 77-1736.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Allison E. Folds of Fagan, Crouch, Anderson, Folds & Reiman, Gainesville, for appellant.
    Jeffrey B. Clark of Clark & Freedman, Orlando, for appellee.
   PER CURIAM.

We have considered all of appellant’s points on appeal and find merit in only one point having to do with the award to the wife of permanent alimony in the amount of $1300 per month after July 1, 1978. In our judgment the record supports an award of permanent alimony, but the amount awarded is excessive.

Accordingly, the final judgment is modified to provide for permanent alimony for the appellee in the sum of $950 per month instead of $1300 per month. As so modified the final judgment is affirmed.

AFFIRMED AS MODIFIED.

DOWNEY, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


text:
    Doris NANIA, Appellant, v. PORT SALERNO REALTY, INC., a Florida Corporation, Appellee.
    No. 77-2276.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    James L. S. Bowdish of Crary, Buchanan & Meginniss, Stuart, for appellant.
    William Selmi, Jr., of Peer, Selmi & Koebe, P.A., Jensen Beach, for appellee.
   PER CURIAM.

This is an appeal from a final judgment entered upon the appellee’s motion for summary judgment or for judgment on the pleadings. The trial court did not specify whether it was entering a judgment on the pleadings or a summary judgment. However, this court finds unresolved issues in both the pleadings and the evidence requiring reversal of the trial court’s decision.

This is an action for a real estate broker’s commission. Although the appellant acknowledged in both the pleadings and in deposition that the appellee broker had presented a written offer to purchase the appellant’s property, the appellant denied that the terms of such offer were in accordance with the listing agreement between the parties. We agree that this is a valid, unresolved issue that precludes the entry of a judgment on the pleadings or a summary judgment. McAllister Hotel v. Porte, 98 So.2d 781 (Fla.1957).

ANSTEAD, MOORE, and BERANEK, JJ., concur.


author: MOORE, Judge.

text:
    Charles Patrick SOUTHARD, Appellant, v. STATE of Florida, Appellee.
    No. 77-2508.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and William H. Larkins, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond and Kenneth G. Spil-lias, Asst. Attys. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellant entered pleas of nolo conten-dere to, and was convicted of, two counts of uttering a forgery. He was sentenced pursuant to the two convictions and argues on appeal that the trial court erred in not giving him credit for time spent in a Santa Barbara, California, county jail pending his return to Florida to answer the charges. At our request the parties have briefed this issue.

It is appellant’s contention that Section 921.161(1), Florida Statutes must be interpreted to include all time spent in any county jail, whether it be in Florida or some other jurisdiction. This issue has been decided adversely to the appellant’s contention in Karlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974).

We find it unnecessary to reach a conclusion in the case sub judice. Appellant has failed to demonstrate, either in the trial court or before this Court, that he was in fact incarcerated in California pursuant to a Florida detainer. The record is void of any official reference to any incarceration in California, whether it be pursuant to a Florida detainer or California charges. It being the burden of the appellant to demonstrate error, we therefore find that he has failed to sustain that burden. The sentence and conviction are therefore affirmed.

AFFIRMED.

DOWNEY, C. J., and CROSS, J., concur.

      . § 921.161(1), Fla.Stat.
      “A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.” (emphasis added).


author: ANSTEAD, Judge.

text:
    Robert H. HOSKINS, III, Appellant, v. Mary Taylor HOSKINS, Appellee.
    No. 78-637.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.

      Rex P. Cowan, Winter Haven, and David Roth of Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellant.
    Ronald Sales, Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from an order denying the husband’s motion for change of venue. We reverse.

The parties were married in Polk County and resided there together until their separation in January, 1977, when the wife moved to Palm Beach County. The husband leased an apartment for the wife in Palm Beach County and visited with her on an average of one weekend a month in attempts to reconcile. The wife wanted the husband to move to Palm Beach County and the parties looked at potential residences there, but the husband continued to reside in Polk County. The wife also visited the husband in Polk County. In February, 1978, the wife filed for dissolution in Palm Beach County. The husband’s request for a change of venue to Polk County was denied.

In the recent case of Carroll v. Carroll, 341 So.2d 771 (Fla.1977), the Supreme Court approved a holding by the First District Court of Appeal which held:

“To protect the beneficial purposes of both the marriage dissolution legislation and the venue statute, we are required to look, not for the county or the scattered counties where the breach may be said to have occurred, but to the single county where the marriage last existed. In that county the intact marriage was last evidenced by a continuing union of partners who intended ... to remain married, indefinitely if not permanently. Ordinarily the court will recognize that county naturally, as do the parties themselves, and the venue problem will be no more difficult than finding where the marriage partners called home. Courts have long asked that simple question when determining the domicile of succession. Smith v. Croom, 7 Fla. 81, 97-101, 154-59 (1857), reh. den. 7 Fla. 180. The harder cases inevitably arising in this day of atomic families and separate residence [Judd v. Schooley, 158 So.2d 514 (Fla. 1963)] will respond to a test like that employed to resolve domiciliary controversies in other contexts. See Wade v. Wade, 93 Fla. 1004, 113 So. 374 (1927), invoking the Roman doctrine, and Perez v. Perez, 164 So.2d 561 (Fla.App. 3rd, 1964). In what county were both partners last present with a common intention to remain married and in that place? There the marriage was broken, although recognition of the breach was postponed; there the cause of action for dissolution arose, within the meaning and application of § 47.011. ...” 322 So.2d at 57.

The Carroll decision specifically rejected a prior opinion of the Second District in Arnold v. Arnold, 273 So.2d 405 (Fla. 2d DCA 1973), which held that venue may lie in the county where the events took place which finally rendered the marriage irretrievably broken. In Carroll, for instance, the wife alleged that those events took place in Oka-loosa County where she moved from the marital home which was located in Holmes County. The First District and the Supreme Court ruled that venue should be in Holmes County because that was the last place the marriage partners resided together with the common intention to remain married and to remain there. In essence the Arnold test was rejected as being too dependent on subjective considerations and hence, conducive to forum shopping.

Mrs. Hoskins claimed that she finally decided the marriage was broken while she was residing in Palm Beach County. But Mr. Hoskins never resided in Palm Beach County. He visited his wife in Palm Beach County, just as she visited with him in Polk. But just as she remained a resident of Palm Beach, so did Mr. Hoskins remain a resident of Polk, despite their exchange of visits. And if Mr. Hoskins never became a resident of Palm Beach County, it can hardly be said that the Hoskins resided together in Palm Beach County with the joint intention to remain married and to remain in Palm Beach County. The last place where they resided together was Polk County and under the holding in Carroll, venue should be in Polk County.

Accordingly, the order denying the husband’s motion for change of venue is reversed with directions that venue of this action be transferred to Polk County.

REVERSED WITH DIRECTIONS.

DAUKSCH and LETTS, JJ., concur.

      . Carroll v. Carroll, 322 So.2d 53 (Fla. 1st DCA 1975).


text:
    Henry A. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 78-679.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and William H. Larkins, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is the second appearance of this case before this Court. In Davis v. State, 356 So.2d 1252 (Fla. 4th DCA 1978), the facts were stated. The conviction on Count I for attempted trespass on a conveyance is now before us for review. In view of this Court’s more recent pronouncements on the issues raised under the Count I conviction in the case of In the Interest of M. E., 357 So.2d 1052 (Fla. 4th DCA 1978), we find no error in the Count I conviction and judgment and sentence below are therefore affirmed.

AFFIRMED.

ANSTEAD, DAUKSCH and BERANEK, JJ., concur.


text:
    Edna Carol BUBANI and Travelers Indemnity Co., Petitioners, v. Ervin ROGERS, By and Through his mother and next friend, Edith Rogers Foster, and Edith Rogers Foster, Individually, Respondents.
    No. 78-1022.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.

      Nancy Little Hoffmann, Ft. Lauderdale, and Gordon James, III, of Grimmett, Scherer & James, Ft. Lauderdale, for petitioners.
    David J. Halberg, Miami, for respondents — Ervin Rogers and Edith Rogers Foster.
   MOORE, Judge.

This is a petition for a common law writ of certiorari to review an order of the trial court which denied the defendant-petitioner’s motion to dismiss the action until the plaintiffs-respondents paid the costs which had been assessed against them as a result of a previous voluntary dismissal.

In 1976 the plaintiffs filed a complaint for a personal injury action. The plaintiffs then announced a voluntary nonsuit and the defendant’s motion to tax costs was entered in the amount of $1,108.33. The plaintiffs then filed a new complaint for the same cause of action without having satisfied the cost judgment from the first case. The defendant moved to dismiss the action until the prior cost judgment is satisfied. The motion was denied and the trial court stayed the cost judgment pending the outcome of the second action.

Subsequent to the filing of this petition the defendant moved to stay the lower court proceedings pending review. That motion was denied but the trial court required the plaintiffs to deposit the amount of the cost judgment in the court registry pending the outcome of this petition for certiorari.

The propriety of the trial court’s actions is dependent upon an interpretation of Fla. R.Civ.P. 1.420(d) which states:

“(d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed a claim in any court of this State commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.”

This court has recently made it clear that costs assessed in the initial action must be paid before the plaintiff can proceed with the new action:

“Furthermore, the same rule makes it mandatory, where a new action is brought on the previously dismissed claim, for the trial court to stay proceedings in that new action until its order for payment of costs of the claim previously dismissed has been complied with. This rule has the obvious salutary effect of discouraging repeated lawsuits on the same claim by exacting payment of costs before the party whose claim was dismissed is allowed to proceed with a new edition of the identical cause of action.” Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234, 1235-1236 (Fla. 4th DCA 1976).

The same result has also been reached in Paley v. Cocoa Masonry, Inc., 354 So.2d 945, 946 (Fla. 2d DCA 1978):

“The intent of the rule is clear enough. If a party voluntarily dismisses a claim, he cannot proceed in a second suit against the adverse party on that claim without first paying those costs assessed against him by the court in the original action.”

It is clear that the second suit cannot proceed until the costs previously assessed in the first action have been paid. The fact that the trial court has ordered that those funds be paid into the court registry does not render this case moot because the defendant is entitled to the actual receipt of those funds.

Furthermore, although the defendant’s motion was entitled a “motion to dismiss,” it requested that the action be dismissed until the prior cost judgment is satisfied. In essence, this is a motion to stay the action rather than a motion to dismiss.

Accordingly, the petition for writ of cer-tiorari is granted and this cause is remanded for additional proceedings consistent with this opinion.

DAUKSCH and LETTS, JJ., concur.