author: TYSON, Presiding Judge.

text:
    Joey THOMPSON v. STATE.
    4 Div. 498.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    Rehearing Denied May 24, 1977.

      Jerry E. Stokes, Andalusia, for appellant.
    William J. Baxley, Atty. Gen. and Michael L. Weathers, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged that the appellant, “being over the age of eighteen years, did intentionally and unlawfully sell, furnish or give, to wit: marijuana . to Sheila Williams, a person who had not attained the age of eighteen years . . .” The jury found the appellant “guilty as charged,” and the trial court fixed his punishment at six years imprisonment in the penitentiary. Appellant’s motion for new trial was denied following a hearing thereon.

Love Henderson testified that she was the grandmother of Sheila Williams, age fifteen, and that Sheila lived with her at her home on Packer Street in Andalusia. Mrs. Henderson stated that on the morning of March 31, 1976, around 9:00 a. m., the appellant came to her home and requested to talk with Sheila. Mrs. Henderson told the appellant that Sheila was in bed asleep and that she did not want to awaken her. Appellant informed Mrs. Henderson that the purpose of his visit was to request that Sheila take some money which he owed to Sheila’s brother, Kenny, who was then being held in the Covington County Jail. Upon hearing this, Mrs. Henderson went inside, called Sheila to the door, and left the couple alone on the front porch.

Sheila Williams testified that during her conversation with appellant, he gave her four marijuana cigarettes and requested that she take them to Kenny when she visited her brother at the jail. Sheila stated that appellant instructed her that if anyone caught her with the marijuana to tell them that a Randy Moore gave it to her. Sheila took the marijuana inside her home and hid it. Around 1:00 p. m., she left for the Covington County Jail with the four “joints” hidden in her bra.

Covington County Deputy Sheriff Don Harrell testified that he was alerted of appellant’s plan to smuggle marijuana into the jail by a phone call from a female informant who had seen appellant give the marijuana to Sheila. Deputy Harrell stated that when Sheila arrived at the jail, he allowed her to sign in and go upstairs to her brother’s cell, then immediately sent word that he wanted to talk with her. When Sheila came back downstairs, Deputy Harrell questioned her, then called a Sheriff’s Department secretary, Barbara Blackwell, to come over to the jail. After her arrival at the jail, Ms. Blackwell took Sheila into a private room, conducted a search of her person, and found the four marijuana cigarettes.

Sheila was charged with possession of marijuana and her Miranda rights were read to her by a Deputy Szpek, who, the next day, also took a statement from her. In her statement, Sheila revealed that the marijuana cigarettes were given to her by the appellant. The appellant was later arrested for furnishing or giving away marijuana to a person under eighteen years of age.

I

Appellant contends that the evidence presented at trial was insufficient to sustain his conviction inasmuch as the only testimony which tended to “directly link” him with the commission of the offense was that of Sheila Williams, an accomplice. The decisive question before us therefore is: Was Sheila Williams an accomplice whose testimony would necessitate corroboration? See Title 15, Section 307, Code of Alabama 1940.

In Leonard v. State, 43 Ala.App. 454, 192 So.2d 461, this Court, through Judge Cates, observed:

“The classic test of determining whether the witness is an accomplice is: Could he have been indicted and convicted of the offense charged, either as principal or accessory? [Authorities omitted.]”

The act prohibited by Title 22, Section 258(52), inherently requires the participation of two persons; however, the Legislature has provided punishment for only one, the offender over the age of eighteen. Under this statute, Sheila Williams was the “victim” of the crime, and she could not have been indicted and convicted for this offense even though she may have aided or abetted its commission. Title 22, Section 258(52), was enacted for the benefit and protection of the class of persons to which Sheila Williams belongs, i. e., persons under the age of eighteen. Thus, her testimony needed no corroboration. See Duncan v. State, 20 Ala.App. 209, 101 So. 472; Blocker v. State, 40 Ala.App. 658, 120 So.2d 924; Denny v. State, 49 Ala.App. 621, 274 So.2d 650.

II

Appellant cites prejudicial error in the prosecution’s attempt to establish that on the Saturday before the offense in question, the appellant had furnished Sheila Williams with marijuana. The pertinent inquiry was made during the redirect examination of State Witness Sheila Williams (R. pp. 29-31):

“Q. Now Mr. Prestwood asked you about somebody furnishing you some marijuana. The Saturday before this happened Joey Thompson furnished you some marijuana, didn’t he?
“A. No, sir, I . . . .
“MR. PRESTWOOD: Now, Your Honor we are going to object to that.
“THE COURT: She answered in the negative.
“MR. PRESTWOOD: He’s trying to get another offense.
“THE COURT: Well, she answered in the negative.
“MR. PRESTWOOD: Yes, she said no?
“THE COURT: Yes.
“MR. PRESTWOOD: All right.
“Q. Were you riding in a car with Joey Thompson on the Saturday before this?
“A. I . . . .
“MR. PRESTWOOD: We object to that. We object to that, he is pursuing it, Your Honor and we object to that and we move to exclude it.
“THE COURT: There is nothing wrong with riding in a car, I overrule the objection.
“MR. PRESTWOOD: Well, I know what he is getting at or trying to get at.
“A. No.
“THE COURT: She answered that in the negative, likewise.
“MR. PRESTWOOD: All right, sir.
“Q. Are you answering in the negative or you don’t remember?
“MR. PRESTWOOD: Now we object to him arguing with his own witness, Your Honor.
“THE COURT: Overruled.
“A. I don’t recall.
“Q. You don’t recall? Do you have an independent recollection of walking up to Jacks on Saturday and Joey came up and you got in the car with him and rode off?
“MR. PRESTWOOD: Your Honor, we are going to object to this. He is trying to get in something that you have already sustained the objection to.
“THE COURT: I’ll stop him at the proper time. Overruled, you may answer. You may go ahead and answer.
“A. No, sir.
“Q. You just don’t recall?
“A. No, sir.
“Q. All right. That’s all.
“MR. PRESTWOOD: Subject to recall, we .
“THE COURT: All right. You may go back to the witness room.”

Because Sheila Williams answered in the negative, we are of the opinion that any prejudice which may have arisen from this line of questioning was rendered innocuous. A.R.A.P., Rule 45.

Ill

Appellant contends he was denied his Sixth Amendment right to confront and cross-examine witnesses when the trial court refused to compel Deputy Don Harrell to disclose the identity of his informant who had alerted him of the plan to supply marijuana to inmate Kenny Williams. The request for disclosure came after Deputy Harrell rendered a nonresponsive answer to a question propounded by appellant’s counsel during cross-examination. From the record (R. p. 46):

“Q. Didn’t you mention Joey’s [appellant’s] name to her?
“A. Oh, I’m sure that I mentioned his name to her.
“Q. In what connection?
“A. When I was questioning her about the cigarettes. I knew where she got them.
“Q. Well, did you see Joey hand them to her?
“A. No, sir. My informer did.
“Q. Your informer, who was your informer?
“A. Who . .
“MR. McGILL: We object to that, Your Honor.
“THE COURT: Yes, sustained.
“MR. PRESTWOOD: Well, Your Honor, we are entitled to know who the witnesses are against this defendant, and he is bringing an undisclosed witness in the courtroom.
“THE COURT: The only time they are required to disclose the name of an informer is when it has to do with the identity of the defendant.
“MR. PRESTWOOD: Well, that is what this is.
“THE COURT: I sustain the objection.”

We find no error in the trial court’s ruling. The stated fact that “my informer” saw appellant give Sheila Williams the marijuana cigarettes was hearsay. However, the record reveals that no objection was directed to this nonresponsive answer by way of a motion to strike and, or, request for curative instructions. Had such objection been made and appellant received an adverse ruling thereto, our review of appellant’s claim that he was deprived of his Sixth Amendment right to confront witnesses against him would be cast in a different light. However, under the circumstances here presented, we hold that the trial court’s refusal to compel disclosure was not erroneous. See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639.

IV

The appellant sought to impeach the testimony of Sheila Williams through the testimony of several witnesses by attempting to bring out two factors concerning her interrogation by Deputy Harrell.

The appellant sought to show that Sheila Williams’ testimony was suspect because on the day of her arrest and interrogation at the jail, Harrell admitted that he had deliberately led her to believe that: (1) It was the appellant who had telephoned that she was ¿ringing the marijuana to the jail; and (2) That Deputy Harrell had indicated to her that inasmuch as she was a juvenile, “she would be sent off to an industrial school” if she did not cooperate with the authorities.

In rebuttal the State recalled Deputy Harrell to testify about his telephone conversation with the informant. Harrell stated that his informant was “a female,” and Harrell also stated that the informant indicated “Sheila Williams was coming to the jail with some marijuana for Kenny Williams.” Harrell also testified that because he was attempting to ascertain the truth in his interrogation of Sheila Williams, he did lead her to believe that it was the appellant who had placed the telephone call to him at the jail. Since this line of inquiry was opened up on cross-examination initially by the defense and by the defense’s own witnesses, the remainder of these matters were properly allowed in evidence by the State in rebuttal. Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, cert. denied 292 Ala. 743, 290 So.2d 213; Herriott v. State, Ala.Cr.App., 337 So.2d 165, cert. denied Ala., 337 So.2d 171.

V

As grounds for the appellant’s motion for new trial, he asserts that a prospective juror, Tony Findley, failed to answer questions on voir dire concerning his prior acquaintanceship with the appellant, and as a result thereof this juror was allowed to serve at trial and the appellant was prejudiced thereby.

At the hearing Findley testified that the appellant had been to his home with the appellant’s father on one occasion to help him pull a pump, but that was six or seven years before, and that he did not feel like the appellant was “a personal acquaintance” of his since he had not seen him in a number of years. He further related that he had known the appellant years ago as a boy, probably when he was “twelve or fourteen years old” and had not seen him since that time.

The appellant related that he realized who the man was when he saw someone looking at him during the trial and then he looked at the jury list and saw the words “L & N” by the man’s name.

The standards covering this situation are well set forth in the opinions of the Supreme Court of Alabama in Freeman v. Hall, 286 Ala. 161, 238 So.2d 330; and Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247.

Because of the age of the appellant at the time, and due to the fact that Findley had not seen the appellant in seven years, we do not find error in Mr. Findley’s failure to recognize the appellant, and therefore answer the questions asked on voir dire. Smithson v. State, 50 Ala.App. 318, 278 So.2d 766; Malone v. State, 55 Ala.App. 189, 314 So.2d 108.

We have carefully examined this record and find same to be free from error. The judgment is

AFFIRMED.

DeCARLO, BOOKOUT and BOWEN, JJ., concur.

HARRIS, J., concurs in result.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte Joey THOMPSON.
    SC 2640.
    Supreme Court of Alabama.
    July 29, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: BROOM, Justice,

text:
    George Edward CALDWELL v. STATE of Mississippi.
    No. 49487.
    Supreme Court of Mississippi.
    July 20, 1977.
    Anthony J. Sabella, Memphis, Tenn., for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, SUGG and BROOM, JJ.
   BROOM, Justice,

for the Court:

Death penalty for murder was the sentence resulting from trial of the defendant (appellant Caldwell) in the Circuit Court of DeSoto County. Assignments of error briefed raise questions relating to (1) sufficiency of evidence to establish corpus de-licti; (2) refusal of the trial court to grant certain requested defense instructions; and (3) constitutionality of the Mississippi death penalty statute as it was prior to Jackson v. State, 337 So.2d 1242 (Miss.1976). Affirmance would be ordered here except that retrial with bifurcated aspects is required under Jackson which was mandated by decisions of the United States Supreme Court.

FACTS: An argument between defendant Caldwell and a Mr. Patrick (Assistant Manager of Big Star Super Market) concerning payment for a pack of cigarettes led to a gun fight in Hernando, Mississippi, during which Caldwell shot and killed Police Officer Rory W. Key. Caldwell purchased a six-pack of beer, went outside, and returned into the store for the cigarettes. Then he attempted to pay for them without waiting at the end of the check-out line, but Patrick insisted that Caldwell await his turn. At that time Caldwell walked out of the store with the cigarettes unpaid for and he was followed by Manager Patrick who asked Caldwell for payment, whereupon Caldwell handed him a one dollar bill and asked for his change. After Patrick told Caldwell to come back into the store for the change, Caldwell and Patrick both reentered the store where words were exchanged after Caldwell became impatient for the change. Patrick handed the bill back to Caldwell and called the police. Caldwell got into a car with three companions, and as they backed the car out of their parking space they struck a car which was passing them. While they were stopped and checking the cars for damage, Officer Key arrived and Patrick pointed out Caldwell as the subject about whom he was complaining.

The testimony is conflicting as to whether the police officer or Caldwell fired first, but a dozen or more shots were fired. As Caldwell attempted to flee in a car parked on the lot, a member of the sheriff’s staff arrived and fired at Caldwell, striking him in the head.

I.

Argument is made that the state’s evidence failed to establish the criminal agency. Careful study of the record, including consideration of the angle of the path of the bullet downward from the upper left shoulder (point of entrance) to the lower back area (point of bullet exit), causes us to conclude that the evidence and reasonable inferences which the jury was justified in drawing from the testimony sufficiently establishes criminal agency. Elliott v. State, 183 So.2d 805 (Miss.1966), held that criminal agency may be “proven by circumstantial evidence and by reasonable inferences to be drawn from the evidence.” Excerpts of the testimony of Elroy Johnson are as follows:

A. The Defendant went around behind a black Ford pickup. And Mr. Key, I guess his gun was empty, got down between the pickup and and (sic) a car and the Defendant jumped up on the hood of the Ford pickup and shot , Mr. Key.
Q. Now you saw the Defendant, George Caldwell, fire at Mr. Key?
A. Yes, sir.
Q. All right. Did you see Mr. Key get hit?
A. Yes, sir.
Q. Where was the defendant, George Caldwell, when Mr. Key got hit?
A. He was standing on top of the hood of the pickup.

Mr. Johnson then attempted to demonstrate for the jury the position of the defendant and Key, and continued.

A. Well, Mr. Key was down on his knees between the car and the pickup and the Defendant had his left hand on top of the pickup and shot down like this (demonstrated).
Q. All right. You say Mr. Key was on his knees?
A. He was crouched down between the car and the pickup.
Q. What did Mr. Key do after he was hit, if anything?
A. Well, he, as far as I know, just fell forward, fell down.

Johnson then identified the defendant’s gun as that gun which fired the shot he just described. Testimony of the coroner was to the effect that the deceased, Police Officer Key, suffered no gunshot wound other than the fatal one. Upon this record there can be no merit in the argument that criminal agency was not sufficiently established by the evidence and reasonable inferences therefrom.

II.

Next Caldwell argues that the trial court erroneously refused to grant him jury instructions numbered D7, D8, and an unnumbered instruction. Requested instruction D7 dealt with the shooting by the defendant when he “had reasonable cause to believe and did believe that he was imminent (sic) and immediate danger of being killed by the victim or of receiving great bodily harm at the hands of the victim ..” Failure to grant this instruction does not constitute reversible error because the question of whether Caldwell shot his victim in self-defense was adequately presented by other instructions. The instruction requested is so grammatically ambiguous as to render it incomprehensible to a jury composed of laymen. Furthermore, the instruction is abstract and misleading for failure to advise the jury at what point in the shoot-out the defendant was justified or could be considered justified in taking his adversary’s life. Regardless of these features, the instruction is cumulative of other instructions granted. Argument is also made concerning refusal of the court to grant Caldwell his requested instruction D8 and an unnumbered instruction. The unnumbered instruction tells the jury that self-defense is authorized if “there was danger of such design being accomplished.” The instruction was improper for failure to state that such danger must be imminent.

Requested instruction D8 was refused by the trial court and such refusal is urged as error. This instruction would authorize the jury to find the defendant guilty of manslaughter. There is no error in this regard because the facts of the case made out a case of either murder or killing in self-defense. Under Vassar v. State, 200 Miss. 412, 27 So.2d 541 (1946), the manslaughter instruction was properly refused. Our judgment is that the sum total of the instructions granted adequately instructed the jury and there is no reversible error pertaining to the instructions when all of them are considered together.

III.

Caldwell was convicted under Mississippi Code Annotated § 97-3-19(2)(a) and § 97-3-21 (Supp.1976), and the state concedes in its brief that under Jackson v. State, 337 So.2d 1242 (Miss.1976), mandated by earlier decisions of the United States Supreme Court, Caldwell must be granted a new trial. Because this case involves the death penalty, the new trial shall be bifurcated into the separate phases of guilt-finding and sentence-determination. Jones v. State, 342 So.2d 735 (Miss.1977); Henderson v. State, 342 So.2d 744 (Miss.1977); Ivey v. State, 341 So.2d 918 (Miss.1977).

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


author: BOYD, Justice. DREW, Justice (Ret.),

text:
    TOWN OF INDIAN RIVER SHORES, etc., et al., Petitioners, v. Rosemary RICHEY, etc., Respondents.
    No. 50307.
    Supreme Court of Florida.
    June 30, 1977.
    Gordon B. Johnston, Sharp & Johnston, and James T. Vocelle and Fred T. Gallagher, Vocell, Gallagher & Block, Vero Beach, for petitioners.
    Robert L. Shevin, Atty. Gen., and William C. Sherrill and Mary Jo Carpenter, Asst. Attys. Gen., for respondents.
   BOYD, Justice.

Chapter 29163,- Laws of Florida (1953) is the City Charter of the Town of Indian River Shores. Article VI of the Charter governs elections. Section 2 of the Article provides that qualified municipal electors shall be town residents or those who have owned real estate in the Town for at least six months at the time of municipal elections. There is no qualification requirement that the landowners be residents. Section 1 of the Article provides for registration of municipal electors in the municipal registration book. The use of the Charter registration system was discontinued after Chapter 73 — 155, Laws of Florida, was enacted to amend Section 98.041, Florida Statutes. Chapter 73-155, a general law with State-wide effect, provided for a permanent single system of voter registration for all elections, including municipal elections, and for registration by the County Supervisor of Elections or precinct registration officers.

The Town filed suit against the County Supervisor of Elections for a declaratory decree that anyone meeting the Charter election qualifications, residency or ownership of Town land, may register as a municipal elector. The trial judge entered an order of final judgment finding Article VI, Section 2 of the Charter, as a Special Act, to be unaffected by Chapter 73-155 and directed registration of Town landowners who seek to register.

The final judgment was reversed by the District Court of Appeal, Fourth District, 337 So.2d 410 (Fla.4th DCA 1975), and the court certified the following question to be a matter of great public interest:

Does Section 1 of Chapter 73-155, Laws of Florida, 1973, implicitly repeal Article VI, § 2, of Chapter 29163, Laws of Florida 1953, so that only residents of a municipality may vote in a municipal election?

As the District Court points out, repeal of a statute by implication is not favored and will be upheld only where irreconcilable conflict between the later statute and earlier statute shows legislative intent to repeal. For the reasons given in the District Court opinion, irreconcilable conflict between Chapter 73-155 and the Charter provision governing municipal elector qualifications is present. The Legislature intended for the general law to repeal the Charter provision. Only residents may register to vote.

It is so ordered.

OVERTON, C. J., and SUNDBERG and HATCHETT, JJ., concur.

DREW (Retired), J., dissents with an opinion.

DREW, Justice (Ret.),

dissenting.

The power of the Legislature over municipalities, under the Constitution of 1885 and now, is plenary. That the Legislature has the power to prescribe the qualifications for voters in municipalities is beyond question.

The optional permanent registration of voters first provided for in 1953 and made mandatory in 1973 on all municipalities is basically a procedural method of registration repeatedly referred to in the act itself as “a system.” It has nothing to do with “qualifications,” a substantive matter. I can discern no reason why a compliance with the provisions of the town charter will in any way present any insurmountable problem to the supervisor of registrations, nor any reason why both acts cannot be fully applied. None have been pointed out to me in either the District Court’s opinion or the majority opinion here. There is only the assertion that there is an “irreconcilable conflict.” If the Legislature wants to change the qualifications of voters in Indian River Shores it can readily do so. We should not do it for them.

I dissent and would quash the District Court of Appeal opinion, and direct the reinstatement of the able trial judge’s judgment.

       Art. V, § 3(b)(3), Fla.Const., gives us jurisdiction.

      . State v. Johns, 92 Fla. 187, 109 So. 228 (1926); North Shore Bank v. Town of Surfside, 72 So.2d 659 (Fla.1954); Gate City Garage v. City of Jacksonville, 66 So.2d 653 (Fla.1953).

      . Art. VIII, § 2(a) presently states that “[m]uni-cipalities may be established or abolished and their charters amended pursuant to general or special law.” Art. VIII, § 2(b) states that municipalities shall have governmental powers “except as otherwise provided by law.” Thus, the Legislature has “life and death” power over municipalities. City of Long Beach Resort v. Collins, 261 So.2d 498 (Fla.1972); State v. City of Tampa, 316 So.2d 570 (Fla.2d DCA 1975).

      . E. g., State v. Dillon, 32 Fla. 545, 14 So. 383 (1893); Town of Jupiter Island v. Gautier, 157 So.2d 868 (Fla.2d DCA 1963); Hisgen v. Rileigh, 115 So.2d 715 (FIa.2d DCA 1959).

      . Ch. 29163, Laws of Florida (1953).

      . Ch. 73-155, Laws of Florida. See particularly Sec. 1 of Ch. 73-155 [§ 98.041, Fla.Stat. (1975)] where the word “system” is used four times. The used words are “registration system,” “this system,” “other systems,” “registered in pursuant of this system.”

      . The brief of appellee and the opinions of both the District Court and majority here constantly confuse “registration” with “qualification.” The brief asserts “there is a positive and irreconcilable conflict between the non-resident freeholder registration ” (of the old and new act). In the opinion of the District Court similar language is used and in the majority here only the words “irreconcilable conflict.” Color coded cards or other means may be used to designate the non-resident freeholder when he registers, and, when the county supervisor furnishes the books to the town for use in a city election, such persons so identified shall be privileged to vote under appropriate instructions. True, it entails more work on the part of the supervisor, but this does not render the act invalid.


author: BOYD, Justice.

text:
    STATE of Florida, Appellant, v. Richard GREENE, Appellee.
    No. 50371.
    Supreme Court of Florida.
    July 7, 1977.
    Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., for appellant.
    Clyde G. Killer, Fort Myers, for appellee.
   BOYD, Justice.

An information was filed in the County Court of Lee County against Richard Greene. It charged that through culpable negligence or reckless disregard for the safety of another in discharging a pistol on January 4, 1976, he had injured a person contrary to Section 784.05, Florida Statutes. Greene moved to dismiss the information because it included language (reckless disregard for the safety of another) struck from the statute by an amendment effective before the date of the charged offense. The motion was denied. Again Greene moved to dismiss the information. The second motion was granted because the trial judge believed the statute to be unconstitutionally vague. We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

We agree with the trial judge that the information was not defective because it contained language not present in the statute. The surplus language did not misinform Greene of the nature of the criminal act charged. We must disagree, however, with the trial judge’s declaration that the statute is unconstitutional.

The purpose of the statute is to make criminal those acts which create an unreasonably great risk of harm to others. The degree of punishment for such acts depends on whether injury is inflicted. If so, the crime is a misdemeanor of the first degree; if not, a misdemeanor of the second degree. The statute follows:

“784.05 Culpable negligence
(1) Whoever, through culpable negligence, exposes another person to personal injury shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084. (2) Whoever through culpable negligence inflicts actual personal injury on another shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”

In defense of the trial court order Greene argues that the members of the public cannot be expected to understand the meaning of “culpable negligence” and therefore cannot know what acts are proscribed by the statute. The state counters that, although difficult to define, the term is one in common use and no more susceptible to a “vagueness” attack than many legal terms employed throughout the statutes of this State.

In Russ v. State, 140 Fla. 217,191 So. 296 (1939), culpable negligence was defined by this Court as the omission of an act which a reasonably prudent person would do or the commission of an act which such a person would not do. To establish the crime of culpable negligence, however, the Court required a degree of negligence higher than the minimum degree necessary to sustain recovery of compensatory damages.

“This Court is committed to the rule that the degree of negligence required to sustain imprisonment should be at least as high as that required for the imposition of punitive damages in a civil action. The burden of proof authorizing a recovery of exemplary or punitive damages by a plaintiff for negligence must show a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.” 191 So. at 298.

Thus, reckless indifference or grossly careless disregard of the safety of others is necessary to prove “culpable negligence.” Whether members of the public would describe reckless acts which create a great risk of danger to others as culpable negligence or not, they know that such acts are criminally outlawed.

The statute is constitutional. The cause is remanded to the County Court, in and for Lee County, for proceedings consistent with this opinion.

It is so ordered.

OVERTON, C. J., and ADKINS, SUND-BERG, HATCHETT and KARL, JJ., concur.

ENGLAND, J., dissents.

      . Ch. 74-383, § 21, Laws of Florida.


author: PER CURIAM.

text:
    OUTBOARD MARINE CORPORATION and Commercial Union Assurance Company, Appellants, v. APECO CORPORATION et al., Appellees.
    No. 76-1058.
    District Court of Appeal of Florida, Third District.
    As Corrected On Denial Of Rehearing July 28, 1977.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellants.
    Corlett, Merritt, Killian & Sikes, Greene & Cooper, Miami, Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and A. H. Toothman, Miami, for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

This is an appeal by Outboard Marine Corporation from an order granting a directed verdict in favor of Apeco on Apeco’s cross-claim for indemnity against Outboard Marine Corporation. The plaintiff, who is not a party to this appeal, sued for damages for injuries suffered in a pleasure boating accident. The complaint charged defendant Outboard Marine Corporation and Apeco Corporation on separate counts for negligence. It was alleged that Outboard Marine Corporation had furnished an inboard-outboard engine which was defective and which caused the accident in which the plaintiff was injured. It was alleged that Apeco Corporation, as the manufacturer and assembler of the boat, had negligently failed to design the boat to provide for reasonable safety features.

At the trial, it appeared from the plaintiff’s evidence that the only proximate cause of the accident was the defect in the engine. Outboard Marine introduced the testimony of an expert witness who testified that in his opinion the boat should have had a longer and more efficient forward rail. The question presented is whether the evidence was sufficient to raise a jury issue that the design of the boat was a contributing factor to the injury of the plaintiff. Our review of the evidence convinces us that the trial court properly determined that the claimed inadequacy of the forward rail had no relationship to the injury of the plaintiff and that the defendant Apeco had no duty to design the boat in order to guard against the violent accident caused by the failure of the steering mechanism, which was a part of the engine supplied by Outboard Marine Corporation. See Matthews v. Lawnlite Company, 88 So.2d 299 (Fla.1956); Green v. American Tobacco Company, 154 So.2d 169 (Fla.1963); and Royal v. Black and Decker Manufacturing Company, 205 So.2d 307 (Fla. 3d DCA 1967).

The appellant has also assigned error upon the court’s order awarding attorney’s fees and taxing costs but no independent argument is directed to this order, and we find no error upon the order.

Affirmed.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Donald McCRAY, Appellee. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Simon STOCKTON, etc., et al., Appellees.
    Nos. 76-197, 76-207.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied Aug. 3, 1977.
    Corlett, Merritt, Killian & Sikes, Greene & Cooper, Miami, for appellant.
    Rosen & Bronis, Edward C. Vining, Jr., and Richard A. Burt, Walton, Lantaff, Schroeder & Carson and George W. Ches-row, Ratiner & Glinn, Miami, for appellees.

      Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant insurer appeals two summary judgments determining that Donald McCray was insured by defendant for the subject accident.

In February 1973 Jose Martinez purchased and was the legal title holder of a 1973 Camaro financed through GMAC. Donald McCray owned and held title to a 1966 Corvette and a 1963 Corvette. In June 1974 McCray traded his 63 Corvette for Martinez’ Camaro. GMAC would not permit Martinez to transfer the certificate of title for the Camaro to McCray because of an outstanding lien on the 63 Corvette. Martinez executed a notarized document authorizing McCray to operate the Camaro and McCray did likewise with respect to the 63 Corvette. At the time he acquired the Camaro, McCray had an existing insurance policy issued by the appellant United Services Automobile Association (USAA) covering his 66 Corvette. The Camaro was never added and when the policy was renewed in late October 1974 the 66 Corvette was the only vehicle insured. McCray in his deposition testified that he had, in early October 1974, given the Camaro as a gift to his girlfriend, Carol Kiibler. On December 1, 1974 McCray took his 66 Corvette to the shop to be painted and used the Camaro some of the time. On December 26, 1974 while his Corvette was still in the shop, McCray was driving the Camaro in which Pamela Stockton and Carol Kiibler were passengers when he lost control of it resulting in a single car collision. Pamela and Carol were killed and McCray was seriously injured. The personal representatives of Pamela and Carol filed wrongful death actions against Martinez, McCray and USAA. USAA answered and filed a cross-claim for a declaratory action on insurance coverage contending that the Camaro was not an insured vehicle under its policy. McCray then filed a declaratory judgment action seeking an adjudication of coverage. All three cases were consolidated and following pretrial discovery, summary judgments were entered finding that USAA provided coverage to McCray with respect to the subject accident.

USAA appeals and contends there are genuine issues of material facts as to whether McCray owned the Camaro at the time of the accident, whether he was temporarily using the car and whether it was furnished for his regular use. We cannot agree.

USAA’s policy provided coverage to McCray for all sums which he might become legally obligated to pay as damages because of bodily injury including death resulting therefrom arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile. Under this liability section the policy defines an owned and non-owned automobile as follows:

* * * * * *
“An ‘owned automobile’ .
“(a) [A] private passenger automobile described in this policy for which a specific premium charge indicates that coverage is afforded,
* * * * * *
“(e) a private passenger automobile ownership of which is acquired by the named insured during the policy period . or
“(d) a temporary substitute automobile.
“A ‘temporary substitute automobile’
“[A]ny automobile, not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile when withdrawn from normal use because of its servicing .
“A ‘non-owned automobile’ . . .
“[A]n automobile not owned by or furnished for the regular use of . the named insured . other than a temporary substitute automobile.”
* * * # * *

However, in this section the words “own” or “owner” are not defined which creates an ambiguity, and the policy should be construed according to the entirety of its terms as set forth therein and as amplified by any endorsement thereto. See Feldman v. Central National Insurance Co. of Omaha, 279 So.2d 897 (Fla.3d DCA 1973) and Section 627.419(1), Florida Statutes (1975). Further, an insurance policy must be interpreted to provide coverage whenever possible. Sanz v. Reserve Insurance Company of Chicago, Illinois, 172 So.2d 912 (Fla.3d DCA 1965); 18 FlaJur. Insurance § 407 (1971) and cases cited therein. The personal injury protection endorsement in this policy defines owner as “a person or organization who holds the legal title to a motor vehicle . ” It is undisputed that Martinez held the legal title to the Camaro and after the accident received the proceeds of a collision insurance policy covering the car and thereafter transferred the title to the collision insurer. Contrary to USAA’s contention, McCray was not the owner of the car. Cf. Metzel v. Robinson, 102 So.2d 385 (Fla.1958) and Glens Falls Insurance Company v. Gray, 386 F.2d 520 (5th Cir.1967). In addition, there is no question that McCray’s Corvette was in the shop for servicing (i. e. painting) at the time of the accident and, thus, the Camaro was a temporary substitute automobile for which McCray was covered under his policy with USAA. Furthermore, in his deposition McCray testified that he gave any interest he had in the Camaro in early October 1974 to Carol Kii-bler and she had the only set of keys to the car. The deposition testimony of Carol’s girlfriend, Marilyn Solomon, corroborates the above. To refute this fact, USAA relies upon the testimony of Mary Lee Miles, Carol’s roommate, who stated that Carol never told her the Camaro was given to her as a gift. However, Ms. Miles further testified that she rarely socialized with Carol and the gift of the Camaro was not the type of thing Carol would have related to her; therefore, she did not know whether or not the Camaro was, in fact, given to Carol. We find Mary Lee’s testimony is insufficient to contradict McCray’s testimony. See Seaboard Air Line Ry. Co. v. Myrick, 91 Fla. 918, 109 So. 193 (1926).

The policy was ambiguous and the facts were not in dispute. Thus, the trial judge was eminently correct in resolving the ambiguity as a matter of law. See United Services Automobile Association v. Porras, 214 So.2d 749 (Fla.3d DCA 1968).

Affirmed.

      . who was voluntarily dismissed from this action

      . See Sanz v. Reserve Insurance Company of Chicago, Illinois, 172 So.2d 912 (Fla.3d DCA 1965), supra.


author: DOWNEY, Judge.

text:
    Charles DIAMOND and Ida Diamond, his wife, Appellants, v. WOODLANDS HOMEOWNER’S ASSOCIATION, INC. and Al J. Schechter, Trustee, Appellees.
    No. 75-2186.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Rehearing Denied Aug. 10, 1977.

      Henry J. Prominski, Tucker & Prominski, Pompano Beach, for appellants.
    Maurice M. Garcia, Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, for appellee — Al J. Schechter, Trustee.
   DOWNEY, Judge.

In November 1970 the appellants, Charles and Ida Diamond, purchased a residential lot in The Woodlands, Section Seven, in the City of Tamarac, from Behring Corporation (the successor of Behring Properties, Inc.). The deed provided, among other things:

“That said land is free of all encumbrances éxcept the restrictions, reservations and servitudes of record, as recorded in Official Records Book 3877, Pages 583 through 591 of the Public Records of Broward County, Florida, against the subject property which requires the payment of a monthly maintenance and recreation .area charge by the Grantee; which said maintenance and recreation area charge does constitute a covenant running with the land and which shall be binding upon all subsequent heirs, legal representatives, assigns and successors of the Grantee, and which provides for a monthly payment to be made by Grantee in the initial amount of $48.00 in advance.”

Paragraph 9 of the restrictions referred to in the deed provides that: Behring was constructing recreational facilities on a certain parcel in the subdivision and that Behring intended to enter into a lease for that parcel of property and pay an annual rental therefor; each property owner in Section Seven would pay Vuoth of said rental, amounting to $20 per month; the rental would from time to time be adjusted to keep pace with the increased cost of living; Behring would have a lien on the lot of each owner who failed to pay the rent.

The lease contemplated by paragraph 9 of the restrictions had been executed and recorded June 24, 1969. Thereafter the owner and lessor of the recreational parcel conveyed that property to appellee, Al J. Schechter, and the lessee assigned all of its rights under the lease to the parcel to Schechter.

The Diamonds paid the monthly rental due from the time they purchased the property until November 1972. They made no payments thereafter, and they have refused to pay either the basic rental or any amount to meet the cost of living increase in the rental determined as of January 1, 1974. Schechter sued the Diamonds, claiming that, under the formula set forth in the lease, the latter amount is $5.66 per month. The Diamonds claimed that any cost of living increase does not exceed $4.38 per month. The trial judge entered a summary final judgment, finding the Diamonds owed Schechter $767.54 for ground rent from November 1, 1972, together with a cost of living increase effective January 1, 1974, in the amount of $25.66 per month. Thus, it appears the trial court found the cost of living increase in rent was $5.66 per month. The court also found that Schechter was entitled to a lien on the Diamonds’ property-

The Diamonds contend there were genuine issues of material fact presented relative to Schechter’s right to a lien on their property and as to the amount of the cost of living increase in the rent.

We have carefully reviewed the briefs and the entire record in this case and find no error in the trial court’s ruling either as to Schechter’s entitlement to a lien or the amount of the rent increase due to the increase in the cost of living.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

SMITH, ROBERT P., Jr., and SCHWARTZ, ALAN R., Associate Judges, concur.


text:
    Etta E. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-10.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Rehearing Denied Aug. 4, 1977.
    Richard L. Jorandby, Public Defender, and George B. Barrs, Laurie Sistrunk, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon consideration of the record, briefs and argument of counsel for the respective parties, we determine the trial court erred in not declaring a mistrial and appointing separate counsel for indigent co-defendants when it became apparent their interests and defenses were conflicting. Baker v. State, 202 So.2d 563 (Fla.1967).

Reversed and remanded for a new trial.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.


author: ALDERMAN, Judge.

text:
    ST. PAUL FIRE AND MARINE INSURANCE COMPANY, INC., and Jones, Paine & Foster, Appellants, v. MANPOWER, INC., a Foreign Corporation, and Transamerica Insurance Company, a Foreign Corporation, Appellees.
    No. 76-1334.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Rehearing Denied Aug. 4, 1977.

      Edna L. Caruso, of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellants.
    L. Edward McClellan, Jr., of Rentz McClellan & Haggard, Miami, for appellees.
   ALDERMAN, Judge.

This appeal is from an order of the circuit court dismissing with prejudice the appellants’ complaint, which sought common law indemnification from the appellees.

Shell Oil Company, whose rights and claims have been assigned to the appellants, used the services of a labor broker, Manpower, Inc., to obtain an employee to work at a gas station owned and operated by Shell. The employee was injured in the course of his employment. He filed a workmen’s compensation claim against Manpower and its insurer, Transamerica, which was settled for the lump sum of $23,072.65. Manpower and Transamerica then commenced an action against Shell under Section 440.42, Florida Statutes (1975), contending that Shell was the injured man’s employer under the statute and so should reimburse Manpower and Transamerica for the amounts they had paid to the employee. The Judge of Industrial Claims found that the injured man had been an employee of Shell on the date of the accident, and that as actual or “special” employer, Shell must reimburse Transamerica for the monies paid to or on behalf of the employee by Transamerica.

The appellants, having purchased Shell’s claim and rights, then filed a complaint in circuit court seeking common law indemnification from Manpower and Transamerica for the amount Shell had been required to expend in reimbursement. The appellants’ complaint alleged that Manpower “expressly warranted both orally and in writing, through its advertisements” that Manpower would provide unemployment and workmen's compensation insurance benefits for personnel (one of whom was the injured employee) which it supplied to Shell. The trial court granted the defendants’ motion to dismiss the complaint on ground of res judicata. We reverse.

The finding of res judicata is based upon the Compensation Order of the Judge of Industrial Claims in which Shell was found to be the “special” employer of the injured workman and hence liable to reimburse those who had paid workmen’s compensation benefits. The Compensation Order reveals, however, that it contains no resolution of the issue of common law indemnification. In fact the Compensation Order states:

The evidence reflects without specific details that there was some type of oral agreement in existence between Shell Oil Company and Manpower, Inc. to which oral agreement the Transamerica Insurance Company was not a party and which oral agreement apparently determined whether or not compensation coverage for special employees such as Robert E. Hamilton in this cause, should be furnished by either the Shell Oil Company or by Manpower, Inc. However, I find that as a Judge of Industrial Claims, I do not have jurisdiction or power to enter ruling on the oral agreement existent between Manpower, Inc. and Shell Oil Company as it affects Transamerica Insurance Company; the efficacy of said oral agreement; or the power or jurisdiction to determine whether said oral agreement between Manpower, Inc. and Shell Oil Company was binding on Transamerica Insurance Company under the terms of the written contract of insurance at the time of this accident entered into between Manpower, Inc. and Transamerica Insurance Company.

The complaint alleges both oral and written warranties. Even thoúgh the Judge of Industrial Claims specified only an oral agreement in stating his lack of jurisdiction, we find that his Compensation Order adjudicated neither the issue of a written nor an oral indemnification agreement. The Judge of Industrial Claims was concerned with determining who was the injured man’s employer under Section 440.42, Florida Statutes (1975). The issue of common law indemnification is entirely separate and was not settled in any way by the Compensation Order.

We therefore determine that the issue of an oral and written indemnification agreement which was raised in the appellants’ complaint is not res judicata, and we reverse the trial court’s order dismissing the complaint.

REVERSED and REMANDED for further proceedings consistent with this opinion.

ANSTEAD and DAUKSCH, JJ., concur.

      . Section 440.42(3), Florida Statutes (1975), provides:
      When there is any controversy as to which of two or more carriers is liable for the discharge of the obligations and duties of one or more employers with respect to a claim for compensation, remedial treatment or other benefits under this chapter, the judge of industrial claims shall have jurisdiction to adjudicate such controversy; and if one of the carriers voluntarily or in compliance with a compensation order makes payments in discharge of such liability and it is finally determined that another carrier is liable for all or any part of such obligations and duties with respect to such claim, the carrier which has made payments either voluntarily or in compliance with a compensation order shall be entitled to reimbursement from the carrier finally determined liable, and the judge of industrial claims shall have jurisdiction to order such reimbursement; provided however, if the carrier finally determined liable can demonstrate that it has been prejudiced by lack of knowledge or notice of its potential liability, such reimbursement shall be only with respect to payments made after it had knowledge or notice of its potential liability.


text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Alvin T. DODSON, II, et al., Appellees.
    No. 76-2217.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1977.
    Rehearing Denied Aug. 10, 1977.
    Interlocutory appeal from the Circuit Court for Brevard County; Roger F. Dykes, Judge.
    James G. Mahorner, Tallahassee, for appellant.
    No appearance for appellees.
   PER CURIAM.

The order appealed from in these consolidated cases dated September 17,1976, denying appellant’s Motion for Change of Venue is reversed upon authority of Game & Fresh Water Fish Com’n v. Carlile, 341 So.2d 1015 (Fla. 4th DCA 1977). The cause is remanded with directions to transfer the case to the Circuit Court of Leon County, Florida.

REVERSED AND REMANDED, with directions.

CROSS, DOWNEY and ANSTEAD, JJ., concur.


author: BARKDULL, Judge. PER CURIAM.

text:
    BOARD OF COUNTY COMMISSIONERS OF METROPOLITAN DADE COUNTY and Dade County, a political subdivision of the State of Florida, and Frank C. Gardner, Appellants, v. Joseph V. Bia LOWAS et al., Appellees.
    No. 76-1739.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied Aug. 3, 1977.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, Stuart L. Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellants.
    Prunty, Ross, DeLoach & Olsen, John W. Prunty, William Bruce Israel and Ray M. Watson, Miami, for appellees.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   BARKDULL, Judge.

Some time prior to July 20, 1973, the appellant, Frank Gardner, and others determined to form a private corporation for the purpose of promoting a commercial tennis club facility. In furtherance of this venture, they caused Sunset Tennis Club, Inc., to be incorporated in July of 1973. They set about to find a suitable site for the club and, after examining some twenty parcels, Frank Gardner purchased approximately four acres of property upon which a residence was constructed. This was in the unincorporated area of Dade County in a EU-1 zoning classification, which provides for single family residences; minimum one acre. This zoning classification is one of the highest residential type zoning classifications under the Dade County Code and has been on the subject property and its surrounding area in excess of twenty-five years. The area in question is a fully developed exclusive one-acre residential area for approximately one mile surrounding the property.

The property was acquired by Gardner on March 13, 1974, and an application for a change in zoning from EU-1 Estate to BU-2 Business (including liquor), together with a request for unusual use special exceptions and numerous variances, was filed and was set for public hearing on June 25, 1974. This proposed tennis club was to be built in accordance with plans submitted to the Zoning Department, dated January 25, 1974. Apparently, upon this application being considered, it was met with substantial opposition from the surrounding neighbors and the application was withdrawn. It was thereafter modified and resubmitted in July 1975, and sought a change from EU-1 Estate zoning for an unusual use to permit a tennis court and variance relative to certain setbacks and fence height requirements. The Planning Department recommended approval with conditions, based on a resubmission of plans submitted dated June 30, 1975.’ The Zoning Director of Dade County recommended that the application should be denied with prejudice in its entirety. The matter occurred before the Zoning Appeals Board (hereafter referred to as ZAB) on February 2,1976. The ZAB found that the request for unusual use would not be compatible with the area and, on said date, denied the request for the unusual use and variance. [It is noted here that the variance would only have been applicable in the event of the granting of the unusual use, and no further reference will be made to the variance.]

Thereafter, Gardner pursued an appeal from the decision of the ZAB to the Board of County Commissioners. In seeking a repeal of the entire decision of the ZAB, the application for appeal reads in part as follows:

******
“Application, or part of Application Appealed (Explain):
“Entire Appealable Application
“appeals the decision of the Dade County Zoning Appeals Board with reference to the above subject matter, and in accordance with the provisions contained in Chapter 33 of the Code of Metropolitan Dade County, Florida, hereby makes application to the Board of County Commissioners for review of said decision. The grounds and reasons supporting the reversal of the ruling of the Zoning Appeals Board are as follows:
“(State in brief and concise language)
“In support of this appeal, the Applicant would state:
“The testimony and exhibits presented before the Zoning Appeals Board concerning the above revealed that the facility planned by the Applicant would meet all of the criteria as stated in Section 33-311 of the Metropolitan Code of Dade County. In addition, the Applicant has shown that his request would have no adverse effect on the present or future development of the immediate neighborhood and that said request is compatible with same.
“Wherefore, the Applicant asks that the County Commission reverse the ruling made by the Zoning Appeals Board and grant the Applicant’s request.” [emphasis added]
* * * * * *

By this application and its very wording, Gardner sought review of the decision of the ZAB and sought a reversal, because the testimony and exhibits before the ZAB demonstrated that his application for unusual use permit met all the criteria of Section 33-311 of the Code of Metropolitan Dade County, and that the request would have no adverse effect on the present or future development of the immediate neighborhood.

In due course, the petition for appeal came on for consideration before the Board of County Commissioners. At that time, the Board of County Commissioners undertook a de novo hearing, without any review of the evidence or exhibits introduced before the ZAB. At this hearing, the applicant produced argument by an attorney; unsworn testimony by himself, an architect, an engineer, and property owners not directly in the area to be affected by the planned facility urging its approval. The vast majority of the people living within 500 feet of the property involved either testified or were shown by exhibits to oppose the application; they were also not sworn and were represented by counsel. There was no attempt by the Board of County Commissioners to review the decision of the ZAB, as requested by the petition of appeal filed by Gardner. There was no attempt by Gardner forces to show why the decision of the ZAB was not supported by substantial competent evidence; there was no attempt to show that the evidence produced before the ZAB met the requirements of Section 33-311(d) of the Code of Metropolitan Dade County to justify an unusual use. At the conclusion of the public hearing, the Board of County Commissioners adopted a resolution overruling the decision of the ZAB and granted the request, subject to certain conditions.

The appellees, as aggrieved property owners, pursued a petition for writ of cer-tiorari to the circuit court. During the pendency of this proceeding, the property owner [Gardner] was permitted to intervene in this proceeding. The circuit court, after reviewing the evidence and exhibits tendered at the hearing before the Board of County Commissioners and following review of the briefs and argument of counsel, entered an order in effect quashing the resolution reversing the decision of the ZAB and granting the unusual use. Thereafter, the Board of County Commissioners and Dade County filed a notice of appeal, which was joined in by Gardner. Upon the appeal, the County and Gardner urge that the circuit court erred in its order granting the writ of certiorari in accepting any of the grounds urged by the petitioners. Following the matter being briefed, it was set for oral argument. Although not raised by the parties during oral argument, the court became concerned as to the authority of the Board of County Commissioners to conduct a de novo hearing and directed counsel for the respective parties to submit briefs demonstrating this authority.

The briefs and the several amended Ordinances of Dade County [attached as an Appendix] have been examined. Initially, we recognized that these zoning ordinances of the County are not any model of clarity. It is clear, by Section 33-312, that if no appeal from a ruling of the ZAB is made, its decision is final and effective. It is also clear, by Section 33-312, that as to regulatory matters the decision of the ZAB is merely advisory. It also appears, by Section 33-313, that an aggrieved party to a ZAB decision may seek an appeal of this decision to the Board of County Commissioners [this is what was done in the instant case and what was sought was a reversal based upon the testimony and exhibits before the Board]. Generally, through Sections 33-302 through 33-316, it appears that the decisions of the ZAB in non-regulatory matters and district boundaries are final unless reversed by the Board of County Commissioners, which would appear to mean on the record as made before the ZAB. Section 33-313. Of course, in regulatory matters, as well as district boundary changes, Section 33-314(a) provides that it is the duty of the Board of County Commissioners to directly hear and act upon such applications. It would appear, by reference to these sections, that in all matters except those exclusively reserved for an initial public hearing before the Board, that the decisions of the ZAB would be final unless, upon appeal, the Board of County Commissioners should find that the evidence presented before the ZAB did not support its ruling. However, Section 33-315 is most ambiguous and reads, in part, as follows:

“If an application is before the board of county commissioners pursuant to this article, be it by way of appeal, recommendation or otherwise, it shall have authority to consider and take final action upon any and all matters and requests contained in the application, any other provisions in this article notwithstanding. In making any final decisions, the commission shall be guided by the standards and guides applicable to the zoning appeals board or as otherwise specified in this chapter. It shall consider all relevant and material evidence offered to show the impact of the development upon Metropolitan Dade County. * * * ” [emphasis added]
******

Apparently, it can be argued that the Board of County Commissioners not only can receive evidence in those matters which must initially be brought before it [regulatory and district boundary changes], but may also receive evidence when considering a matter on appeal from the ZAB. It is obvious that if this interpretation is correct, both applicants and aggrieved citizens in many zoning controversies will be required to face two adversary hearings, and Section 33-313 is in conflict with Section 33-315. If this is the intention of the legislative fathers of the County, it should be spelled out with more clarity. However, because of our ultimate decision in this cause, we will accept the right of the County, in this instance, to have taken testimony.

Having attempted to outline the procedure as provided by the Code of Metropolitan Dade County, we now turn to the petition of appeal by Gardner. As previously indicated, he sought a reversal of the ZAB decision based upon a review of the testimony and exhibits presented before the said Board. It was impossible for the County Commission to base a reversal on the ground as urged because there is no showing that the evidence and exhibits produced before the ZAB were ever brought to the attention of the Board of County Commissioners.

The word “appeal” has a special meaning: it means to review the actions of a lower court or tribunal or agency. It is a plea to a higher supervisory body to reverse, alter, or modify a decision by a subordinate agency upon the record as made before that agency; generally, upon the proposition that the initial determination was not in accordance with law or regulations and/or that the decision was arrived at through bias or prejudice or that the decision of the subordinate agency was not supported by substantial competent evidence. So, if we were limited to reviewing the action of the Board of County Commissioners solely as an appellate body, obviously its decision was in error. The circuit court was correct because the Board made no attempt to review a record before the subordinate body. But, as previously pointed out, Section 33-315 of the Code of Metropolitan Dade County apparently authorizes [at an appeal proceeding] the receiving of additional evidence by the Board and that it did in the instant matter. However, it did not consider, as requested by the appellant or as indicated by the nature of an appellate proceeding, the evidence and exhibits tendered before the ZAB. Obviously, the efforts of the ZAB and its decision must bear some weight.

The Board of County Commissioners is not authorized to ignore the ZAB decision, but is only authorized to consider an appeal therefrom. Even though it may be permitted to receive additional evidence on the appeal, it still would have to measure the decision of the ZAB at the time it made its decision and such additional evidence as it may have received before the Board. Not having had the evidence before the ZAB brought to the attention of the Board of County Commissioners, it did not have the entire matter before it and, therefore, acted beyond the terms of its own code when it reversed the action of the ZAB. The Board of County Commissioners departed from its own legal requirements and, therefore, the actions of the circuit judge were correct in quashing the resolution of the Board of County Commissioners reversing the order of denial by the ZAB.

An “unusual use” is defined in the Code of Metropolitan Dade County as follows:

“Sec. 33 — 311(d)
“Special exceptions, unusual and new uses. Hear application for and grant or deny special exceptions; that is, those exceptions permitted by the regulations only upon approval after public hearing, new uses and unusual uses which by the regulations are only permitted upon approval after public hearing; provided the applied for exception or use, including exception for site or plot plan approval, in the opinion of the zoning board, would not have an unfavorable effect on the economy of Dade County, Florida, would not generate or result in excessive noise or traffic, cause undue or excessive burden on public facilities, including water, sewer, solid waste disposal, recreation, transportation, streets, roads, highways or other such facilities which have been constructed or which are planned and budgeted for construction, are accessible by private or public roads, streets or highways, tend to create a fire or other equally or greater dangerous hazards, or provoke excessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such applied for exception or use in relation to the present and future development of the area concerned and the compatibility of the applied for exception or use with such area and its development.”

To be entitled to an unusual use, the applicant must show [among other things] that the use intended is compatible with the neighborhood and will not destroy the character thereof. Section 33-311(d). From the evidence that was produced before the County Commission, it is apparent that what the applicant attempted to do, with all candor, was organize a tennis club for profit, consisting of at least eight tennis courts, a clubhouse, a youth club, a swimming pool, and a pro shop in an exclusive one-acre estate district. Regardless of its nomenclature, the impact of such a request, if granted, would have been totally out of character with the neighborhood, and, in effect, amounted to a rezoning of the property, which was what the applicant originally asked for. He recognized, in his original application, that it was a business; a commercial venture. All that was eliminated between the original application and the amended application was the reduction of the number of tennis courts from ten to eight, elimination of the lighting and the right to sell intoxicating beverages. The club expected to have 160 family members, a swimming pool, an active youth program, teaching professionals, sales at a pro shop and, by its very nature, would have generated traffic, noise and activity, which are not compatible to an exclusive one-acre residential area [which was the finding of the ZAB].

It appearing, in fact, that the applicant was seeking a zoning change under the guise of an unusual use permit, the action of the Board of County Commissioners was in effect “spot zoning”, and the trial judge was eminently correct in quashing the action of the Board of County Commissioners upon this theory, if none other. Elwyn v. City of Miami, 113 So.2d 849 (Fla.3rd D.C.A. 1959); Friedland v. City of Hollywood, 130 So.2d 306 (Fla.2nd D.C.A.1961); Board of Adjustment of City of Fort Lauderdale v. Kremer, 139 So.2d 448, (Fla.2nd D.C.A. 1962); 35 Fla.Jur., Zoning Laws, § 16.

Therefore, for the reasons above stated, the final order granting writ of certiorari be and the same is hereby affirmed.

Affirmed.

APPENDIX

“ARTICLE XXXVI. ZONING PROCEDURE

“Sec. 33-302. Definitions.

“In construing the provisions hereof and each and every word, term, phrase or part thereof where the context will permit the definitions provided in Section 1.01, Florida Statutes, and Chapter 33 of the Code of Metropolitan Dade County, Florida, and the following additional definitions, shall apply:

# * ‡ * $

“(k) Record. The word ‘record’ when pertaining to the record of any board shall mean and include any application, exhibits, appeal papers, written objections, waivers or consents, considered by such board, transcript or stenographic notes taken for the department at a public hearing held before such board, if any, the board’s minutes and resolution showing its decision or action, and if the record of a lower board is transmitted to a higher board, the record of the higher board shall include that of the lower board. The word ‘record’ shall also include any and all applicable portions of Chapter 33 of the Code of Metropolitan Dade County, Florida, the report and recommendations of the planning director, building and zoning director and the developmental impact committee; the comprehensive development master plan for Metropolitan Dade County, Florida; and Ordinance No. 75-22, or as amended, or applicable neighborhood or area studies or plans approved by action of the board of county commissioners, as well as applicable district boundary maps, aerial photographs and final zoning resolutions. It shall also include the record made as a result of any previous zoning application on the same property. The clerk of the county commission shall identify all exhibits used or referred to at the zoning hearing. All exhibits so identified or introduced shall be a part of the record.”

* * * * * *

“Sec. 33-304. Applications.

“(a) All requests for * * * changes in the zoning regulations, * * * unusual uses, * * * and variances, shall be made by filing an application therefor with the director on application forms prescribed by him or by rule and regulation of the developmental impact committee. * * ”

******

“Sec. 33-306. Zoning appeals board — Establishment.

“(a) There is hereby established a zoning appeals board composed of nine (9) members appointed by the county commission.

“(b) This board is created and established pursuant to Section 4.08 of the Home Rule Charter, and for the purpose of facilitating the zoning powers granted by the Home Rule Charter to the Board of County Commissioners, and to provide a board to hear, consider and review appeals from the zoning regulations or decisions of an administrative official, and to take appropriate action as in this article provided and limited. * i(c *

******

“Sec. 33-308. Zoning appeals board — Organization.

“The director shall serve as secretary for the zoning appeals board, shall be in attendance at all meetings as an advisor and be permitted to propound questions and give evidence and shall designate the time and place where it shall meet; provided, he shall have authority to designate a staff member of the department to act in his stead. * * * The chairman, or vice chairman, or acting chairman, may administer oaths and compel the attendance of witnesses in the same manner prescribed in the metropolitan court. * * *

“Minutes will be kept of all meetings and proceedings and shall include and state the vote of each member on each question, and the motion shall state the reason upon which it is made; such reason or reasons being based upon the prescribed guides and standards and good zoning and planning principles. * * * The zoning appeals board shall keep accurate records of its public hearings which shall be filed, together with its minutes and resolutions, with the department. * * * is authorized to retain a qualified reporter to record and transcribe the public hearing proceedings of the zoning appeals board, and shall provide county transportation for such board for the purpose of making inspections of sites involved in zoning applications. * * * ”

******

“Sec. 33-309. Zoning appeals board — Application.

“All hearings before the zoning appeals board or the board of county commissioners shall be initiated by the filing with the department an application on forms prescribed by the director. * * * Only applications which the zoning appeals board or the board of county commissioners are authorized to consider and act upon shall be accepted for filing.”

******

“Sec. 33-310. Zoning appeals board — Notice and hearing prerequisite to action by the board.

“(a) When an application has been filed hereunder, it shall be promptly transmitted to the appropriate board, together with the written recommendations of the directors of the building and zoning and the planning departments or of the development impact committee, such recommendations to become a part of the hearing file and record, and open for public inspection. No action on the application shall be taken by the zoning appeals board or the board of county commissioners until a public hearing has been held upon at least fifteen (15) days’ notice of the time and place of such hearing published in a newspaper of general circulation in Dade County. * * * ”

******

“Sec. 33-311. Zoning appeals board — Authority and duties.

“Except as otherwise provided by the ordinance, the zoning appeals board shall have the authority and duty to consider and act upon applications, as hereinafter set forth, after first considering the written recommendations thereon of the directors of the building and zoning and the planning departments, and such board is advised that the purpose of zoning and regulations is to provide a comprehensive plan and design to lessen the congestion in the highways; to secure safety from fire, panic and other dangers, to promote health, safety, morals, convenience and the general welfare; to provide adequate light and air; to prevent the over-crowding of land and water; to avoid undue concentration of population; to facilitate the adequate provisions of transportation, water, sewage, schools, parks and other public requirements, with the view of giving reasonable consideration among other things to the character of the district or . area and its peculiar suitability for particular uses and with a view to conserving the value of buildings and property and encouraging the most appropriate use of land and water throughout the county. The zoning appeals board or any of its members may inspect the premises and area under consideration.”

******

“(d) Special exceptions, unusual, and new uses. Hear application for and grant or deny special exceptions; that is, those exceptions permitted by the regulations only upon approval after public hearing, new uses and unusual uses which by the regulations are only permitted upon approval after public hearing; provided the applied for exception or use, including exception for site or plot plan approval, in the opinion of the zoning board, would not have an unfavorable effect on the economy of Dade County, Florida, would not generate or result in excessive noise or traffic, cause undue or excessive burden on public facilities, including water, sewer, solid waste disposal, recreation, transportation, streets, roads, highways or other such facilities which have been constructed or which are planned and budgeted for construction, are accessible by private or public roads, streets or highways, tend to create a fire or other equally or greater dangerous hazards, or provoke excessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such applied for exception or use in relation to the present and future development of the area concerned and the compatibility of the applied for exception or use with such area and its development.”

******

“Sec. 33-312. Zoning appeals board — Decisions.

“All decisions of the zoning appeals board shall be by resolution. The decision, if for denial, shall specify whether it is with or without prejudice. * * * Within fourteen (14) days, but not thereafter, any decision of the zoning appeals board, save and except a decision pertaining to a regulatory amendment may be appealed to the board of county commissioners, as provided by section 33-313 hereof, otherwise, it shall become final. * * * ”

******

“It is hereby intended that the zoning appeals board’s decision concerning a requested regulation amendment shall be considered only as a recommendation, which shall be transmitted, together with the zoning appeals board’s record on each such application, to the board of county commissioners for final action by way of approval, disapproval or modification pursuant to section 33-314 hereof. * * * ”

“Sec. 33-313. Appeals to board of county commissioners.

“Any appealable decision of the zoning appeals board may be appealed by an applicant, governing body of any municipality if affected, or any aggrieved party whose name appears in the record of the zoning appeals board by filing with the department a petition in a form prescribed by the director and a written statement specifying in brief, concise language the grounds and reasons for reversal of the ruling made by the zoning appeals board, * * * whereupon, the director shall transmit to the county commission the appeal papers, the decision and record of the zoning appeals board. * * * Upon the taking of an appeal, the county commission, after first hearing why the decision of the zoning appeals board should or should not be sustained, shall consider the appeal and by resolution either affirm, modify or reverse the zoning appeals board’s decision, and such action of the county commission shall be by majority vote of all members present, save and except when the action taken involves a variance, be it before the county commission by way of appeal or under its authority to consider an application containing a request for a variance pursuant to sections 33-314 or 33-315 hereof or otherwise, the variance shall not be approved or granted except upon a two-thirds vote of all the members present; provided, no appeal shall be heard or considered until at least fifteen (15) days’ notice has been advertised in a newspaper of general circulation in Dade County, identifying the appeal and advising the time and place of the meeting at which the county commission will hear, consider and take final action on such appeal. * * * ”

“Sec. 33-314. Finality of district boundary changes and regulation amendments.

“(a) In addition to the powers set forth in sections 33-313 and 33-315, the board of county commissioners shall have the authority and duty to directly hear and act upon applications for the following matters:

“(1) District boundary changes. The board shall hear and grant or deny applications for district boundary changes on individual pieces of property or on a neighborhood or area-wide basis.
* *****
“(3) Where an application for district boundary change also contains a request for unusual use, new use, variance or special exception which is incidental or related thereto, or where there is pending on the same property or portion thereof more than one application for district boundary change, variance, special exception, unusual or new use, the said application or applications shall be heard in their entirety solely by the board of county commissioners and when possible acted upon at the same public hearing.

“(b) The board, after hearing why the application should or should not be granted, shall consider the matter in accordance with the criteria specified in this chapter, and shall by resolution either grant or deny the application. In granting any variances, special exceptions, new uses or unusual uses, the board of county commissioners may prescribe any reasonable conditions, restrictions and limitations it deems necessary or desirable in order to maintain the plan of the area and compatibility therewith. Such action of the board of county commissioners shall be final; provided, no such action shall be taken until notice of time and place of the meeting at which the board of county commissioners will consider and take final action on the application has been first published as provided in section 33-310 hereof. Anything in this article to the contrary notwithstanding, when an application for a district boundary change or special exception, new use, unusual use or variance is filed by the director or planning director it will only be decided by the county commission after receiving the recommendations of the two (2) directors and after the required noticed public hearing, and such decision shall then be final. * *

******

“(d) Recommendation of the zoning appeals board for or against regulation amendments when received by the board of county commissioners shall be considered and if it is determined to amend the regulations in any manner, such amendment shall be enacted by ordinance as provided by law. . He * *

“Sec. 33-315. Action by the board of county commissioners.

“If an application is before the board of county commissioners pursuant to this article, be it by way of appeal, recommendation or otherwise, it shall have authority to consider and take final action upon any and all matters and requests contained in the application, any other provisions in this article notwithstanding. In making any final decisions, the commission shall be guided by the standards and guides applicable to the zoning appeals board or as otherwise specified in this chapter. It shall consider all relevant and material evidence offered to show the impact of the development upon Metropolitan. Dade County. Detriments or benefits shall not be denied consideration on the grounds that they are indirect, intangible or not readily quantifiable. In evaluating the application, it shall consider where applicable, among other factors related to the general welfare, whether, and the extent to which:

“(1) The development permitted by the application, if granted, conforms to the comprehensive development master plan for Metropolitan Dade County, Florida; is consistent with applicable area or neighborhood studies or plans, and would serve a public benefit warranting the granting of the application at the time it is considered;

“(2) The development permitted by the application, if granted, will have a favorable or unfavorable impact on the environmental and natural resources of Metropolitan Dade County, including consideration of the means and estimated cost necessary to minimize the adverse impacts; the extent to which alternatives to alleviate adverse impacts may have a substantial impact on the natural and human environment; and whether any irreversible or irretrievable commitment of natural resources will occur as a result of the proposed development;

* * * * * *

“The board of county commissioners may defer action on any matter before it in order to inspect the site in question, to refer the matter back to the zoning appeals board or the developmental impact committee for further consideration and recommendation, to refer the matter to any department for its recommendation or for any other justifiable and reasonable reason. When any final action has been taken by the board of county commissioners, its record, together with a certified copy of its minutes and resolution pertaining to such action shall be transmitted to the department for filing, and the same shall be open to the public for inspection at reasonable times and hours. He He He

“Sec. 33-316. Exhaustion of remedies; court review.

“No person aggrieved by any zoning resolution, order, requirement, decision or determination of an administrative official or by any decision of the zoning appeals board may apply to the court for relief unless he has first exhausted the remedies provided for herein and taken all available steps provided in this article. It is the intention of the board of county commissioners that all steps as provided by this article shall be taken before any application is made to the court for relief; and no application shall be made to the court for relief except from resolution adopted by the board of county commissioners, pursuant to this article. Zoning resolutions of the board of county commissioners shall be reviewed by the filing of a petition for writ of certiorari in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, in accordance with the procedure and within the time provided by the Florida Appellate Rules for the review of rulings of any commission or board; and such time shall commence to run from the date the zoning resolution sought to be reviewed is transmitted to the clerk of the commission. * * The director of the building and zoning department shall employ a qualified court reporter to report the proceedings before the board of county commissioners who shall transcribe his notes only at the request of the county or other interested party, at the expense of the one making the request. Such transcript, as well as the transcript of the proceedings before the zoning appeals board, when certified by the reporter, may be used in a court review of a matter in issue. * * * ”

******

ON PETITION FOR REHEARING

PER CURIAM.

On petition for rehearing, the Board of County Commissioners contends that because of “boiler plate” language in the Commission’s resolution, the record of the Zoning Appeals Board was before the County Commission.

A complete re-review of the testimony before the Commission reveals that at no time during the proceeding before the Board was it introduced in evidence or brought to the attention of the board. In fact, to demonstrate that the Commission was conducting a de novo hearing, the motion granting the. relief to the property owners was as follows:

“* * * Mr. Mayor, I would like to move the recommendation of the Planning Department; approval subject to conditions.” [R 120]

Therefore, the petition for rehearing is denied.

      . ******
      “The applicant is requesting an Unusual Use to permit a tennis club including eight tennis courts, two clubhouses, a swimming pool, and pro shop. A companion request is included for a Variance of height and setback requirements to permit three of the proposed tennis courts with 10' high fence (8' permitted) to setback Ttí (15' required) from side (W) property line. “The subject property is 4.8 acres, is zoned EU-1 and lies between SW 75 Av., and Palmetto Expressway approximately 300' north of Sunset Drive. This single family estate area is completely developed and the proposed tennis club would be tantamount to a spot commercial use totally incompatible with the existing zoning and development in the area.
      “A use of this type and magnitude would completely disrupt the estate use in the area. The activity, noise, traffic, etc. would destroy the peace and quiet of the estate residential neighborhood.

      “No legal zoning hardship has been shown to warrant approval of the Variance request and the entire application should be denied with prejudice.
      “The proposed club would provide membership for 160 families.” [emphasis added]
      * * * * * *

      . ******
      “WHEREAS, upon due and proper consideration having been given to the matter, it is the opinion of this Board that the requested Unusual Use would not be compatible with the area and its development would not conform with the requirements and intent of the Zoning Procedure Ordinance; and that the requested Variance of Setback and Height Requirements would not be compatible with the area and its development and would not be in harmony with the general purpose and intent of the regulations and would not conform with the requirements and intent of the Zoning Procedure Ordinance;
      “NOW THEREFORE BE IT RESOLVED by the Metropolitan Dade County Zoning Appeals Board that the requested Unusual Use be and the same is hereby denied with prejudice.
      “BE IT FURTHER RESOLVED that the requested Variance be and the same is hereby denied with prejudice.” [emphasis added]
      ******

      . Pertinent parts of the Code of Metropolitan Dade County, Florida, are filed with this opinion as an Appendix, pages A through F.

      . Among other things, the petition alleged that: (1) The actions of the Commission constituted illegal spot zoning; (2) The applicant failed to show any essential need on behalf of the neighboring area for granting the unusual use permit or variances; and (3) The action of the Commission results in a breach of the integrity of the entire neighborhood in which the property involved is located.

      . No reason was stated in the order, but if the trial court was correct for any reason revealed by the record this ruling will be sustained. Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla. 1962); Rivello v. Cooper City, 322 So.2d 602 (Fla. 4th D.C.A.1975); Aetna Insurance Company v. Settembrino, 324 So.2d 113 (Fla. 3rd D.C.A.1976).

      .******
      “ * * * Upon the taking of an appeal, the county commission, after first hearing why the decision of the zoning appeals board should or should not be sustained, shall consider the appeal and by resolution either affirm, modify or reverse the zoning appeals board’s decision.
      ******

      . Appellants urge that, because private tennis courts are permitted on the one-acre sites, a commercial tennis facility would be compatible with the neighborhood. We disagree. There is a difference of degree in the use of plus the profit motive in the one and not in the other.


text:
    TAMARAC VILLAGE, INC., Appellant, v. BATES & DALY CO., a Florida Corporation, Appellee.
    No. 75-1796.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Rehearing Denied Aug. 4, 1977.

      Herbert Buchwald, Miami Beach, for appellant.
    Philip M. Warren, Pompano Beach, for appellee.
   DOWNEY, Judge.

We have for review a final summary judgment for appellee, Bates & Daly Co., foreclosing its mechanic’s lien against appellant, Tamarac Village, Inc., the owner of the real property in question.

The primary issue on appeal is whether the owner may claim as proper payments a) certain payments it made to the general contractor before the owner recorded a notice of commencement and before appellee began to furnish any labor and material under appellee’s subcontract, and b) payments it made to complete the construction without recording a notice of recommencement after the general contractor had abandoned the construction project.

The following is the pertinent chronology of events:

a) On August 27, 1973, Tamarac, as owner, contracted with a general contractor to improve its property;
b) between September 10, 1973, and October 12, 1973, Tamarac paid the contractor a total of $15,315.08;
c) on October 16, 1973, Tamarac recorded its Notice of Commencement;
d) between October 26, 1973, and November 1,1973, Bates furnished labor and materials to the improvement to the extent of $1,762.52;
e) on November 23, 1973, the general contractor abandoned the job;
f) on November 30, 1973, Bates served notice to owner upon Tamarac;
g) on December 3,1973, Bates recorded its claim of lien.

After the general contractor abandoned the contract, Tamarac had the construction completed at a cost of $64,963.36. Tamarac paid $100,226.56 toward the improvement, or $20,501.56 in excess of the adjusted contract price of $79,725.00.

Several of the critical events which must be kept in mind are:

1) Tamarac paid $15,315.08 to the general contractor prior to recording its notice of commencement;

2) Bates served its notice of intention to claim a lien pursuant to Section 713.06(2)(a) within 45 days of the time it commenced its work but 7 days after the general .contractor abandoned the contract;

3) Tamarac had the construction completed, but it did not record a notice of recommencement as required by Section 713.07(4), Florida Statutes (1973).

The circuit court entered summary judgment in which it found that:

“counsel for each of the parties having agreed that there is no genuine issue of material fact, and that therefore the Court can and should now decide this cause as a matter of law, the Court finds that there was a failure on the part of the Defendant-Owner to timely file a Notice of Commencement, prior to the Owner making some payment under the contract, and the Court further finding that there was a failure on the part of Defendant-Owner to file a Notice of ReCommencement, therefore, a surplus of funds has been created from which the Plaintiff is entitled to recover on its lien in the amount of $1,762.52.”

The court thereupon adjudged that Bates was entitled to have Tamarac’s property sold to satisfy Bates’s lien claim (plus interest, costs, and attorney’s fees).

On appeal, Tamarac contends that: (a) since Bates did not commence work until after Tamarac had paid the general contractor $15,315.08, those payments were not improper, even though they were made before Tamarac recorded its notice of commencement; (b) even if the $15,315.08 payments were improper, Bates still cannot recover because the reasonable cost of completion exceeded the contract price and therefore there was no surplus fund to satisfy Bates’s claim of lien; and (c) since Bates, contrary to the requirements of Section 713.06(2)(a), did not serve its Notice to Owner before the general contractor .abandoned the job, the lien is unenforceable. We disagree with all of Tamarac’s contentions.

If an owner fulfills all the duties the Mechanics’ Lien Law places upon him, his liability for all mechanics’ lien claims cannot exceed the contract price. See Alton Towers, Inc. v. Coplan Pipe & Supply Co., 262 So.2d 671 (Fla.1972), and Section 713.06(1), Florida Statutes (1973). However, if the owner makes improper payments, then he has failed to comply with the Mechanics’ Lien Law, and his liability for mechanics’ lien claims may exceed the contract price. See, e. g., Renuart Lumber Yards v. Stearn, 95 So.2d 517 (Fla.1957).

We hold that the payments Tamarac made before it recorded its notice of commencement were improper payments under Section 713.06(3)(a), Florida Statutes (1973). In addition, we hold that Tamarac’s failure to file a notice of re-commencement as required by Section 713.07(2), Florida Statutes (1973), rendered the payments Tama-rac made to complete the project also improper payments. See Melnick v. Reynolds Metals Company, 230 So.2d 490 (Fla. 4th DCA 1970), and Bill Ader, Inc. v. Maule Industries, Inc., 230 So.2d 182 (Fla. 4th DCA 1969). Thus, Tamarac could not deduct the pre-notice of commencement payments of $15,315.08, nor the reasonable cost of completion, from the adjusted contract price. Accordingly, there remained in Ta-marac’s hands improperly paid portions of the adjusted contract price sufficient to satisfy appellee’s lien.

For the foregoing reasons the judgment appealed from is affirmed.

AFFIRMED.

ALDERMAN, J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.

      . See Section 713.01(3), Florida Statutes (1973) for the definition of “contract price”.


text:
    Mary Jane SCRUGGS, Appellant, v. Thomas Leslie SCRUGGS, Appellee.
    No. 76-1124.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1977.
    Rehearing Denied Aug. 11, 1977.
    V. Craig McCaghren, McCaghren Law Offices, West Palm Beach, for appellant.
    John T. Christiansen, Sales & Christian-sen, Palm Beach, for appellee.
   PER CURIAM.

Upon review and due consideration of the briefs and record on appeal we are of the opinion that the final judgment is affirmed in all respects except the separate award to the husband of the family organ is not supported by the record; such property should be awarded to the parties jointly. In all other respects the final judgment is affirmed.

MAGER, C. J., CROSS, J., and KO-VACHEVICH, ELIZABETH A., Associate Judge, concur.