author: GRIMES, Judge.

text:
    Robert CAIVANO and the Stuyvesant Insurance Company, Appellants, v. The STATE of Florida, for the Use and Benefit of COLLIER COUNTY, Appellee.
    No. 76-446.
    District Court of Appeal of Florida, Second District.
    June 1, 1977.
    David E. Stone and Gisela Cardonne-Dienstag, of Stone, Sostchin & Gonzalez, P. A., Miami, for appellant, Stuyvesant Ins. Co.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from a judgment of bond forfeiture.

Robert Caivano was convicted of possession and sale of cocaine. A $10,000 superse-deas bond was issued pending appeal in which Caivano was designated as principal and Stuyvesant Insurance Company was designated as surety. The judgments were affirmed but the cause was remanded for proper sentencing because of a violation of the same transaction rule. Caivano v. State, 276 So.2d 245 (Fla.2d DCA 1973). Caivano appeared for resentencing on February 11, 1974. At this time the court placed Caivano on probation for a period of three years.

The state then appealed from the order withholding sentence and placing Caivano on probation. Treating the appeal as a petition for certiorari, this court concluded the original mandate had been altered and directed that Caivano be resentenced according to its terms. Thereupon, Caivano was ordered to appear on June 18, 1975, to be sentenced according to the original mandate. When Caivano failed to appear for sentencing at that time, proceedings were instituted which resulted in the forfeiture of the bond.

The narrow issue involved is whether Stuyvesant had fully complied with the condition of its bond when it first caused Caiv-ano to appear for resentencing following the original appeal.

The supersedeas bond was issued in connection with Caivano’s appeal from the judgments of conviction. The condition of the bond read as follows:

“NOW THEREFORE if the said Robert Caivano shall diligently prosecute his said appeal and, in the event that said appeal be dismissed or the said judgment and sentence be affirmed, shall be personally forthcoming in the above named court to answer and abide the final order, sentence or judgment which may be passed in the premises by virtue of the appellate court, and, in case the cause is reversed and remanded, shall personally be and appear at the next term of the said court, in which the case was originally determined, thereafter to be held (from day to day and term to term) to answer in the premises and not to depart from the court without leave thereof, then this obligation to be null and void else to remain in full force, effect and virtue.”

When the case was remanded, the bonding company caused Caivano to appear for resentencing. This was all that the bonding company was obligated to do. It was the state and not Caivano which appealed the order placing Caivano on probation. The language of the bond cannot be read to require the bonding company to cause Caiv-ano to reappear for further sentencing should the state’s appeal be successful. The fact that Caivano was at liberty on probation pending the state’s appeal and, therefore, in a position to disobey the subsequent order to reappear was of no concern to the bonding company.

Since the bonding company has fully performed the condition of its bond, there was no occasion for an estreature. Accordingly, the judgment of bond forfeiture is hereby vacated.

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


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Howard Mitchell BACON, Appellant, v. STATE of Florida, Appellee.
    No. 76-832.
    District Court of Appeal of Florida, Second District.
    June 1, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

The issue presented by this appeal is whether the trial court erred in refusing to instruct the jury on the consequences of a verdict of not guilty by reason of insanity.

The state’s information charged appellant with Count I, shooting into an occupied dwelling; Counts II and III, aggravated assault; and Count IV, resisting arrest with violence. Appellant pled not guilty and not guilty by reason of insanity. He was tried by jury and found guilty as charged on Counts I and II, as well as resisting arrest without violence as a lesser included offense under Count IV. The trial court directed a verdict of acquittal on Count III. Appellant was sentenced to eight years in prison on each of the two felony convictions, but was to be placed on probation during the last five-year period of these sentences. He was sentenced to one year in county jail on the lesser included misdemeanor; all sentences to run concurrently.

Appellant asserted the defense of insanity. He testified he had no independent recollection of the events in question. The defense presented expert testimony from a psychiatrist who opined that appellant did not know right from wrong at the time of the commission of the offenses. The trial court charged the jury on the defense of insanity at the time of the alleged crimes, but did not instruct on the consequences of a verdict of not guilty by reason of insanity.

Appellant’s counsel submitted a written request to the trial court for an instruction concerning the consequences of a verdict of not guilty by reason of insanity. The pertinent part of the proposed instruction read:

Should you decide that by reason of insanity he is not guilty, the court advises you that under the law it is still within the power of the court to commit him to a hospital for treatment or to be incarcerated in a penal institution. You should not be swayed, therefore, from the merits of his defense by the fear that he would be freed without restriction of any kind.

The trial judge denied appellant’s request. Appellant contends the trial court’s refusal to instruct on the consequences of a verdict of not guilty by reason of insanity constituted reversible error. We agree.

The consequences of a jury acquitting a defendant for the cause of insanity are described in Fla.R.Crim.P. 3.460, which states:

When a person tried for an offense shall be acquitted by the jury for the cause of insanity the jury, in giving their verdict of not guilty, shall state that it was given for such cause. If the discharge or going at large of such insane person shall be considered by the court manifestly dangerous to the peace and safety of the people, the court shall order him to be committed to jail or otherwise to be cared for as an insane person and such person shall be held in custody until released by order of the committing court, or may give him into the care of his friends, on their giving satisfactory security for the proper care and protection of such person; otherwise he shall be discharged.

The Supreme Court of Florida in Roberts v. State, 335 So.2d 285 (Fla.1976), adopted the “Lyles Rule’’ (Lyles v. U. S., 103 U.S. App.D.C. 22, 254 F.2d 725 [1957]), and held that a trial judge’s refusal to give a requested instruction on the effect of a verdict of not guilty by reason of insanity constituted reversible error. See also our opinion in Ringgo v. State, 339 So.2d 293 (Fla.2d DCA 1976). Unfortunately, the trial judge did not have the benefit of these decisions at the time of trial.

The Florida Standard Jury Instruction on this point had been adopted some months before appellant’s trial and reads as follows:

I charge you that when a person tried for an offense shall be acquitted by the jury for the cause of insanity, the jury, in giving their verdict of not guilty shall state that it was given for such cause. If the discharge or going at large of the defendant shall be construed by the court to be manifestly dangerous to the peace and safety of the public, the court shall order him to be committed to jail or to a mental institution to be cared for as an insane person and such person shall be held in custody until released by order of committing court, or the court may give him into the care of his family or friends, on their giving satisfactory security for the proper care and protection for such person. Florida Standard Jury Instructions in Criminal Cases, Section 2.16 (2d ed. 1975), adopted by In Re Standard Jury Instructions in Criminal Cases, 327 So.2d 6 (Fla.1976).

The basis of the Lyles Rule is that while jurors, from common knowledge, understand the effects of a verdict of guilty or not guilty, there is no commonly understood meaning of a verdict of not guilty by reason of insanity. The obvious purpose of the standard jury instruction is, of course, to allow the jury to know that even if it returns a verdict of not guilty by reason of insanity, the trial judge, if he finds the defendant “to be manifestly dangerous to the peace and safety of the public,” has the power to commit him to jail or to a mental institution.

Appellant’s requested instruction was not artfully drawn. As the state points out, it could have been misleading to the jury in that it did not inform them that confinement, after acquittal by reason of insanity, could result only if the appellant was found to be “manifestly dangerous to the peace and safety of the public.” The state does concede, however, that a proper instruction as to the consequences of a verdict of not guilty by reason of insanity would have been appropriate in this case.

The trend has been to require the trial court to assure that a jury is properly charged with the law applicable to the case in criminal proceedings. See, e. g., Brown v. State, 206 So.2d 377 (Fla.1968); Hand v. State, 199 So.2d 100 (Fla.1967). Recently, in Wilson v. State, 344 So.2d 1315 (Fla.2d DCA 1977), we held it was error in a prosecution for carrying a concealed firearm for the trial court to refuse to instruct the jury that a defendant must have knowledge of the presence of a firearm, even though the request for an instruction on this point was made orally and did not precisely set forth the applicable law. We found there that the defendant’s request clearly suggested to the trial judge the need for such an instruction. Since the point was critical to the defense, we held a proper instruction should have been given by the court.

Likewise, in the instant case the appellant requested an instruction which was vital to his case. The trial court’s failure to give an instruction on the effect of a verdict of not guilty by reason of insanity, was, under these circumstances, prejudicial to the appellant’s defense and therefore reversible error.

Appellant has also contended that it was error for the trial court not to give him credit for time served awaiting sentence. In view of our holding, it is unnecessary to pass on this point; however, we note that the mandatory minimum sentence provision of Section 775.087, Florida Statutes (1975) for felonies involving a firearm does not preclude allowance of credit for time served prior to imposition of sentence. Lingo v. State, 344 So.2d 629 (Fla.2d DCA 1977).

Accordingly, the judgments and sentences are vacated and the cause remanded for a new trial on Counts I, II, and on the lesser offense for which the appellant was found guilty under Count IV.

BOARDMAN, C. J., and GRIMES, J., concur.


text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. T. Lamar HAZEN, Jr., Mary C. Arthur, Harrison E. Murchison, d/b/a "It Bar,” Merrick Vaughn, and Howard J. Maxey, as Executor of the Estate of Melba Ellis Maxey for the use and benefit of Howard J. Maxey, Appellees.
    No. 76-1539.
    District Court of Appeal of Florida, Second District.
    June 1, 1977.

      William M. Sehneikart of Miller & McKendree, Tampa, for appellant.
    Wayne C. Hall of Strode, Hereford & Taylor, Sarasota, for appellee, Harrison E. Murchison, d/b/a “IT BAR.”
   SCHEB, Judge.

In this interlocutory appeal the appellant insurer, USF&G, challenges a partial summary judgment entered in favor of its insured, Murchison. The issue here is whether USF&G’s policy provided coverage for defense of a suit filed against appellee Murchison, d/b/a IT BAR. The circuit court held the policy provided coverage. We disagree and reverse.

The posture of this litigation is somewhat complicated. Harrison E. Murchison and his wife owned and operated the “IT BAR” in Manatee County. Howard Maxey brought suit against Murchison and his insurer, USF&G. Maxey alleged that Murchison had served alcoholic beverages to an obviously intoxicated person, Chris Cush-man; that Cushman subsequently caused the death of Mr. Maxey’s wife, Melba Max-ey, in an automobile accident. The trial court granted summary judgment in favor of Murchison and USF&G. Maxey appealed, and this court affirmed per curiam without opinion. Maxey v. USF&G (Fla.2d DCA 1977), Case Nos. 76-1317 and 76-1465, Opinion filed May 27, 1977.

Now to retrogress for a moment. When Maxey brought suit, Murchison demanded that USF&G defend him under the comprehensive liability policy it had issued to him and his wife for the IT BAR. USF&G refused to do so, citing the following exclusionary language of the policy:

This insurance does not apply:
(h) to bodily injury or property damage for which the insured or his indemnitee may be held liablé
(1) As a person or organization engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages, or
(2) if not so engaged, as an owner or lessor of premises used for such purposes, if such liability is imposed
(i) by, or because of the violation of, any statute, ordinance or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or
(ii) by reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person;
but part (ii) of this exclusion does not apply with respect to liability of the insured or his indemnitee as an owner or lessor described in (2) above.

Murchison then retained counsel and filed a cross-claim against USF&G. He sought indemnity for any judgment against him, as well as attorney’s fees necessitated by USF&G’s alleged breach of its duty to defend him.

Both Murchison and USF&G moved for summary judgment. The trial court awarded Murchison a partial summary judgment, holding in effect that Murchison did have coverage under the USF&G policy. This interlocutory appeal by USF&G ensued.

In entering its partial summary judgment, the trial judge did not detail his conclusions of law. However, appellee Murchison attempts to sustain the trial court’s judgment on the basis that the exclusionary provisions of the policy, quoted above, were ambiguous.

Murchison points to the fact that he was sued as both owner and operator of the IT BAR. He argues that the insurance policy was ambiguous as it related to him for two reasons. First, as the bar operator he purchased a general liability policy, yet the language in (h)(1) excluded coverage for injuries arising out of bar-related activities is at variance with the basic purpose of the comprehensive liability coverage he obtained. Second, that from reading the last sentence of exclusion (h), which states:

. but part (ii) of this exclusion does not apply with respect to liability of the insured or his indemnitee as an owner or lessor described in (2) above;

the average person would conclude that an owner, such as himself, engaged in selling and serving alcoholic beverages would be exempt from the exclusion in (h)(2)(ii).

Further, Murchison claims that even if USF&G had no duty to indemnify him for his losses, it had a duty to defend him. Murchison points out that Maxey sued him in whatever capacity he acted in doing business as the IT BAR, not just in his capacity as the operator. Therefore, on the face of the complaint, he was entitled to be defended as the owner.

We recognize the well established principle that ambiguities in an insurance policy should be resolved against the insurer who prepared it in order to construe the policy as providing for coverage. See, e.g., Rowland v. National States Ins. Co., 295 So.2d 335 (Fla. 1st DCA 1974). Of equal dignity, however, is the principle of law which holds that the policy should receive a reasonable, practical, and sensible interpretation consistent with the interest of the parties. General Accident Fire & Life Assurance Corp. v. Liberty Mutual Ins. Co., 260 So.2d 249 (Fla.4th DCA 1972).

We reject Murchison’s first contention. The exclusion in (h)(1) is clear and unambiguous, and it is the court’s duty to give effect to it. See Midwest Mutual Ins. Co. v. Santiesteban, 287 So.2d 665 (Fla.1973). Murchison’s second point merits some discussion. The allegations of plaintiff Maxey’s complaint do allude to Murchison’s ownership and operation of the bar; however, the gravamen of the complaint is the negligence alleged against Murchison in selling intoxicating beverages to a person already intoxicated. In Reserve Ins. Co. v. Kerr, 44 Cal.App.3d 569, 118 Cal.Rptr. 758 (1975), the court considered an exclusion similar to the one involved herein with the exception of the final portion quoted above. There the court opined that the provision excluded coverage where the owner-operator of a tavern is liable by reason of serving alcoholic beverages to an intoxicated person.

We think this construction makes sense. In our opinion the additional language found in the policy here under consideration does not affect the meaning of the exclusionary language in this situation. We construe the exclusionary provision to exclude liability coverage for one engaged in selling or serving alcoholic beverages, and to exclude coverage as well to an owner or lessor who does not participate in such a business, with one exception: an owner or lessor who does not participate in the business but is held liable for selling alcohol to a minor or one obviously intoxicated. Since Murchison did participate in the business, he cannot avail himself of the “exception to the exception” found at the end of (h)(2). Though the exclusionary language is inartful, in our opinion it is not ambiguous. Assuming, arguendo, an ambiguity in (h)(2), this would be of no benefit to Murchison who as a bar operator fits within the provisions of (h)(1).

In view of our decision affirming the summary judgment in favor of Murchison and USF&G on the issue of liability, it is unnecessary to reach the issue of USF&G’s duty to indemnify Murchison for damages collected by Maxey. The duty of the insurer to indemnify is ordinarily based upon facts established at trial. Here, by virtue of the summary judgments entered below and affirmed by this court, it has been determined that there is no liability on the part of Murchison for damages.

Accordingly, the summary judgment entered in favor of Murchison, d/b/a IT BAR, against USF&G is vacated and the trial court is directed to enter summary judgment in favor of USF&G against Murchison.

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


text:
    FLORIDA SOUTHERN ABSTRACT & TITLE COMPANY, Appellant, v. Peter S. BJELLOS and wife, Violet L. Bjellos, Appellees.
    No. 76-1578.
    District Court of Appeal of Florida, Second District.
    June 1, 1977.
    Paul Ritter, Winter Haven, and A. H. Lane, Lane, Massey, Trohn, Clarke, Vert-rand & Smith, P. A., Bartow, for appellant.
    Joe L. Sharit, Jr., Straughn, Sharit, Bunn & Chilton, P. A., Winter Haven, for appel-lees.
   GRIMES, Judge.

This ease involves the legal responsibility of a title insurance company when it acts in the capacity as a closing agent.

The appellees entered into a written contract to purchase a house from the Coles. The contract was prepared by a real estate broker who was to obtain his commission from the Coles. The contract provided that the appellees would pay for title insurance and also contained the statement “subject to negative termite inspection paid by seller.” The broker placed an order for title insurance with the appellant.

The residence was inspected on April 16, 1974, by Wright Pest Control, Inc. which found an active infestation of subterranean termites. Wright treated the termite infestation on April 18, 1974. Wright then issued a termite “guaranty” which guaranteed to inspect the premises annually and to further treat the premises for subterranean termites if an infestation is found, providing an annual premium is paid to the company. On April 19, 1974, Wright sent a letter to the Coles which simply stated that on that date he had inspected the property and did not visually observe any termite activity.

The closing took place on May 3, 1974. The appellant undertook to supervise the closingj and no attorneys were involved. At the closing, the appellees were furnished with Wright’s termite guaranty. They did not receive a copy of Wright’s letter of April 19, 1974, nor did they know of its existence. The transaction was closed, and the appellees moved into the house.

Two months later a heavy infestation of drywood termites was discovered in the attic. The appellees incurred substantial expense in repairing the damage caused by the termites. Appellees then filed suit against the appellant contending that had they been properly informed by the closing agent that a negative termite inspection report had not been furnished, they would have been put on notice to look further into the possibility of termites being in the house and thereby avoid the damages they ultimately suffered. Following the taking of depositions, the court entered a summary judgment to the extent of ruling as a matter of law that the appellant had breached a legal duty owed to the appellees to see that the appellees were furnished a negative termite inspection report prior to the closing of the purchase. The court left open for determination at the trial the issues of (1) whether there was a causal connection between the appellant’s breach of duty and the appellees’ damages and (2) the amount of damages. Among the witnesses at the trial was an expert who testified that the house had been infested with drywood termites at the time of closing. The court ultimately entered a judgment for the ap-pellees in the sum of $8,329.

On this appeal, the appellant first contends that its motion for summary judgment should have been granted because there is no evidence that it breached any legal obligation owed to the appellees. The appellant argues that since the only fee it received was for the issuance of title insurance, it undertook no responsibility to ap-pellees with respect to whether they received a negative termite inspection report at closing. We cannot accept this proposition.

While the appellant makes no specific charge for its services in supervising the closing, there is no doubt that these services are provided as an inducement to the purchase of title insurance. When the appellant undertakes to supervise a closing, it is obligated to do so in a reasonably prudent manner. As our supreme court in Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932), stated:

“In every situation where a man undertakes to act, or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another, just as if he had bound himself by an obligatory promise to exercise the required degree of care. Street’s Foundations of Legal Liability, vol. 1, page 92. And even ‘where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case. . .

The appellee, Mr. Bjellos, testified that when the question of termite inspection came up at closing, the Coles handed the appellant’s closing agent a piece of paper which she looked at and stated “that’s just great” and went on with the closing. Mr. Bjellos said he was not furnished any documentation with respect to termites at the closing but later discovered the Wright termite guaranty among the papers which he carried home with him. Mrs. Bjellos and Mr. Cole did not recall any conversation about termites or termite inspection at the closing. The appellant’s closing agent said that the only thing involving termites which occurred at the closing was when Mr. Cole handed the appellees a “termite bond.” She said she never looked at the document to see if it constituted a negative termite inspection report. Appellant’s vice president admitted that where the contract calls for a negative termite inspection report, the closing agent should not close the transaction without such a report being furnished.

The provision in the contract calling for a negative termite inspection carried with it .the necessary implication that the parties were entitled to be informed that this had been accomplished. The so-called “guaranty” furnished at closing did not constitute a negative termite inspection report. Therefore, we believe that the court correctly concluded that the appellant had breached a legal duty to the appellees in failing to properly carry out its responsibility as a closing agent. We do not suggest that the appellant was obliged to render a legal opinion upon the sufficiency of whatever documentation was furnished at closing, but under the circumstances the appellant’s agent was at least obligated to examine the instrument presented and point out the possibility that it did not constitute the “negative termite report” which was a condition to closing. Therefore, the court properly denied the appellant’s motion for summary judgment.

On the other hand, we believe the court erred in entering a partial summary judgment for the appellees. In the first place, the record contains an affidavit of Mr. Cole in which he states that about a week before closing he told Mr. Bj ellos that Wright Pest Control, Inc. had discovered some termites in the house and had treated the house for these termites. This was sufficient to create a genuine issue of fact on the causal connection between the appellant’s failure to ascertain whether a negative termite inspection report had been obtained and the appellees’ purchase of the house. The judge apparently viewed the causal connection issue he had left open for trial as pertaining only to the question of whether there were termites in the house when it was purchased, because he declined to permit appellant to cross-examine Mr. Bjellos about his alleged conversation with Mr. Cole concerning termites prior to closing.

Moreover, appellant suggests that it was irrelevant that appellees did not receive a negative termite inspection report at closing because a letter equivalent to such a report was actually mailed by Wright to the Coles several days before. The appellees respond by arguing that the failure to receive this report at closing prejudiced their ability to sue Wright for not pointing out the existence of termites because they are now unable to show that when they bought the house they relied upon his letter. This strikes us as a mixed question of law and fact which also should not be determined by summary judgment.

Since the final judgment is predicated in part upon the erroneous partial summary judgment, it must be reversed. The case is remanded for proceedings consistent with this opinion.

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


author: HUBBART, Judge.

text:
    TOWER ESTATES, INC., Appellant, v. Robert D. SLEWETT, Alan Slewett, Bernard E. Slevan, and Harvey Goldstein, Appellees.
    No. 77-274.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.

      Dubbin, Schiff, Berkman & Dubbin and Evan Langbein and Alan Greenfield, Miami, for appellant.
    Sparber, Zemel, Roskin, Heilbronner & Karp and Herbert C. Zemel, Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wright and William F. Berger, Miami, for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

This is a mortgage foreclosure suit in which the mortgagor’s affirmative defense was struck and his counterclaim severed from the main action. The mortgagor takes this interlocutory appeal.

Robert D. Slewett, Alan Slewett, Bernard E. Slevan and Harvey Goldstein [mortgagee-appellees] brought suit to foreclose a mortgage on certain real property against Tower Estates, Inc. [mortgagor-appellant] for default on due and owing mortgage payments. Tower Estates filed an answer admitting the default but setting up as an affirmative defense that it would be inequitable to allow the foreclosure because at the time the mortgage was executed, Tower Estates had purchased from Slewett, et al. a tract of land which is presently accessible through the mortgaged land and if foreclosure were allowed, Tower Estates .would have no ingress or egress to its separate land. Tower Estates further filed a counterclaim requesting that the court grant it an easement of ingress and egress pursuant to Section 704.01, Florida Statutes (1975), over the mortgaged land.

The trial judge upon motion by Slewett, et al. struck Tower Estates’ affirmative defense. This action was eminently correct because Tower Estates’ alleged right to an easement on the mortgaged land in no way affects the merits of the foreclosure action. See: 22 Fla.Jur. “Mortgages” § 328 (1958); 55 Am.Jur.2d “Mortgages” § 582 (1971). Indeed, the alleged easement could only become effective in the event foreclosure were in fact ordered.

The trial judge also denied the mortgagee’s motion to strike the counterclaim, but ordered that the counterclaim be severed and tried separately from the main action. We find no error in denying the motion to strike but believe that the counterclaim should be tried in the main foreclosure action and not severed therefrom. In our view, it is more reasonable to settle the mortgagor’s alleged right of easement over the mortgaged land at the time of the foreclosure action so that in the event foreclosure is ordered, the mortgaged land may be sold free of any possible encumbrances, See: 22 FlaJur. “Mortgages” § 372 (1958). In the event foreclosure is not ordered, the counterclaim will of course be moot.

The order appealed from is affirmed insofar as it strikes Tower Estates’ affirmative defense and denies the motion to strike its counterclaim. The order appealed from is reversed insofar as it severs the counterclaim from the main foreclosure action and the cause is remanded to the trial court to try the said counterclaim together with the main foreclosure action.

Affirmed in part; reversed in part.


author: GRIMES, Judge;

text:
    Carl Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. 76-596.
    District Court of Appeal of Florida, Second District.
    June 3, 1977.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge;

This is an appeal from a conviction for aggravated battery. Appellant’s only point of merit pertains to the admissibility of certain inculpatory statements he made to the police.

Appellant was arrested at 5:00 a. m. in the morning and placed in handcuffs. He was then given Miranda warnings. At the trial, officer Spivey explained what happened next:

“Q Did you ask Mr. Jones if he understood those rights?
A Yes.
Q And what did he respond?
A He said that he didn’t want to say anything.
Q Did he eventually say anything?
A Yes, he did.
Q Was that pursuant to your questions?
A Yeah.”

The officer later recounted what occurred at the police station:

“Q And would you tell the Judge, please, what if any conversation you had with Mr. Jones at the Bradenton Police Department.
A Yes, sir. I asked did the defendant, did he want to tell his side and he said no, he just wanted to talk to his lawyer. We asked him who his lawyer was and he said Mr. Schultz. I asked him if he wanted to call him and he said, yes. All right, I didn’t press the issue. I told him what I had through investigation learned. He said, ‘No, that’s not correct.’ He said, ‘Let me remember now to make sure.’
They had been playing pool and he said that Mr. Cadle had pulled his hair and said it made him mad, that he done it two or three times and he told him to quit but Mr. Cadle didn’t do that so he said he went out to his car, got his gun, came back in and shot him. He said although I did not — when I shot him, I didn’t run out of the bar. I walked out of the bar.
* m sj« * *
Q Now Officer Spivey, he said he wanted to talk to his lawyer. Would you describe to the Court, please, how it is that the questioning continued and how this conversation ensued?
A Yes, sir. I would tell him how I had it for my report. He would say, ‘That’s not correct. It was this way.’
Q Was he volunteering these things to you?
A If I asked him questions, he would say, T don’t choose to answer, sir.’ but if I would say something or if I would go on to say how I, through investigation what I had learned; then he said, ‘No, that’s not right. It happened this way.’
Q And so you weren’t questioning him?
A Whenever I asked him questions he would say T don’t choose to answer,’ and so I would drop that.”

The admission of the inculpatory statements over appellant’s objection violated the principles of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Miranda court made it clear that when a suspect in police custody indicates that he wishes to remain silent, further interrogation at that time must cease.

We are compelled to reject the state’s contention that the inculpatory statement given at the police station was admissible because it was not the product of direct interrogation. No one can seriously doubt that officer Spivey was attempting to obtain incriminating statements when he continued to converse with appellant about the incident after appellant had told him he did not want to talk. In Brewer v. Williams, — U.S. —, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), the U.S. Supreme Court recently quashed some incriminating statements obtained by the police in an equally subtle manner after the suspect’s attorney had made it clear that his client did not wish to make a statement.

This is not a case in which interrogation has been terminated at a suspect’s request and later resumed under circumstances in which it is apparent that the suspect has changed his mind and desires to make a statement. Rivera Nunez v. State, 227 So.2d 324 (Fla. 4th DCA 1969); cf. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Here, the appellant clearly indicated that he didn’t want to talk, and the state failed to meet the heavy burden of showing that he thereafter made a knowing intelligent waiver of his right to remain silent. See State v. Dixon and Godbolt, (Fla. 2d DCA 1977) (Case No. 75-1384, Opinion filed May 4, 1977; Singleton v. State, 344 So.2d 911 (Fla. 3d DCA 1977).

REVERSED and REMANDED for a new trial.

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


author: HOBSON, Acting Chief Judge.

text:
    FLORIDA PAROLE AND PROBATION COMMISSION, Appellant, v. William Robert BAKER, Appellee.
    No. 76-1064.
    District Court of Appeal of Florida, Second District.
    June 3, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellee.
   HOBSON, Acting Chief Judge.

Appellant appeals an order of the circuit court granting appellee’s petition for writ of habeas corpus and ordering his release.

Prior to appellee filing his petition for writ of habeas corpus in the circuit court, he filed a petition for writ of habeas corpus in this court alleging the identical facts as alleged in his petition in the circuit court. This court, on April 20, 1976, denied his petition. On April 21st he filed a petition for rehearing which this court denied on May 13, 1976.

The petition filed in the circuit court was mailed on April 26, 1976 and received on May 5, 1976, both dates being prior to this court’s denial of his petition for rehearing.

The circuit, district and supreme courts have concurrent jurisdiction in habe-as corpus. It is well established that a petitioner may not have three direct, repetitious applications for habeas corpus available to him upon the same subject matter. The two petitions both involve the same subject matter and, in fact, the petition filed in the circuit court was filed prior to this court’s denial of appellee’s petition for rehearing.

For the reasons stated above we hold that the defense of res judicata is established on this record.

The order appealed granting the writ of habeas corpus and ordering appellee released is hereby reversed and the cause remanded.

McNULTY and OTT, JJ., concur.

      . Florida Constitution, Art. V, §§ 3, 4 and 5.

      . State ex rel. Miller v. Kelly, 88 So.2d 118 (Fla.1956) and State ex rel. Scaldeferri v. Sandstrom, 285 So.2d 409 (Fla.1973).


text:
    STATE of Florida, Appellant, v. Larry SMAIL, Appellee.
    No. 76-1843.
    District Court of Appeal of Florida, Second District.
    June 3, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Wilbur C. Smith, III, Smith, Carta & Snow, Fort Myers, for appellee.
   GRIMES, Judge.

This is an appeal from an order of discharge under the speedy trial rule.

Appellee was originally charged with narcotics violations in a three-count information. The information was dismissed. On appeal this court affirmed the dismissal of the count involving an alleged sale but reversed the dismissals of two counts charging possession. State v. Snail, 323 So.2d 626 (Fla.2d DCA 1975). The mandate was received by the court below on January 9, 1976.

Thereafter, appellee obtained an order on March 8, 1976, which suppressed the evidence which the appellee had been charged with possessing. The state filed an interlocutory appeal on March 24, 1976. The order of suppression was ultimately reversed. State v. Smail, 337 So.2d 421 (Fla.2d DCA 1976). The trial court received our mandate on October 15, 1976.

The case was set for trial on November 8, 1976. However, at a hearing on November 6, 1976, appellee’s motion for discharge for failure to comply with the speedy trial rule was granted. The order of discharge was entered on November 12, 1976, and the state now appeals this order.

Upon the filing of the mandate following this court’s reversal of the order dismissing the two counts of the information, the state had ninety days within which to bring appellee to trial. Tucker v. State, 344 So.2d 284 (Fla.2d DCA 1977); see State v. Vinson, 294 So.2d 418 (Fla.2d DCA 1974). However, during this period of time the court entered an order of suppression from which the state filed a notice of interlocutory appeal. Thereafter, the state filed a motion to extend the speedy trial period but apparently this motion was never called up for hearing because no order was ever entered. In granting the motion for discharge, the court concluded that the pending interlocutory appeal from the order of suppression did not automatically toll the speedy trial time and that since no order extending the speedy trial time had been entered, the speedy trial time had long since run by the date of the motion for discharge. Thus, the issue framed by the briefs on this appeal is whether the speedy trial time was automatically stayed pending the state’s interlocutory appeal from the order of suppression in the absence of an order to this effect.

The interlocutory appeal was taken pursuant to Section 924.071, Florida Statutes (1975), which reads as follows:

“924.071 Additional grounds for appeal by the state; time for taking; stay of cause.—
(1) The state may appeal from a pretrial order dismissing a search warrant, suppressing evidence obtained by search and seizure, or suppressing a confession or admission made by a defendant. The appeal must be taken before the trial.
(2) An appeal by the state from a pretrial order shall stay the ease against each defendant upon whose application the order was made until the appeal is determined. If the trial court determines that the evidence, confession, or admission that is the subject of the order would materially assist the state in proving its case against another defendant and that the prosecuting attorney intends to use it for that purpose, the court shall stay the case of that defendant until the appeal is determined. A defendant in custody whose case is stayed either automatically or by order of the court shall be released on his own recognizance pending the appeal if he is charged with a bailable offense.”

The Third District Court of Appeal in Mullin v. State, 307 So.2d 829 (Fla.3d DCA 1974), and the Fourth District Court of Appeal in State v. Cannon, 332 So.2d 127 (Fla.4th DCA 1976), have held that an interlocutory appeal filed under this statute does not automatically toll the speedy trial time. On the other hand, the First District Court of Appeal in State v. Pearce, 336 So.2d 1274 (Fla.1st DCA 1976), has ruled that the speedy trial time is automatically tolled by virtue of the statutory language which indicates that an appeal under that section brings about a stay of the case. Faced with conflicting decisions, we are persuaded by the rationale of State v. Pearce, supra, that the speedy trial time is tolled. In Mullin v. State, supra, the language in Section 924.-071 relating to the stay of the case was apparently not called to the court’s attention. The court in State v. Cannon, supra, did consider the effect of the statute but concluded that the pertinent language had been superseded by the speedy trial rule. This overlooks the fact that Section 924.071, as a whole, only became effective upon being incorporated into Fla.App. Rule 6.3(b). See State v. Smith, 260 So.2d 489 (Fla.1972). Our conclusion is consistent with Carroll v. State, 251 So.2d 866 (Fla.1971), in which the supreme court reasoned that the speedy trial time mandated by statute prior to the enactment of the speedy trial rule is tolled pending an appeal under Section 924.071.

The fact that the speedy trial time was tolled pending the appeal from the order of suppression does not necessarily resolve the instant appeal. There still remains the question of how many days the state had to bring the appellee to trial following receipt of the mandate which reversed the order of suppression. The appel-lee can logically argue that the state had only fifteen days left within which to bring him to trial following receipt of the second mandate, since seventy-five of the ninety days available after the first mandate had already run by the time the state filed its notice of appeal from the order of suppression.

However, we believe this case falls more nearly within the rationale of Tucker v. State, supra. In most cases, and certainly in the instant case, an order suppressing evidence has the practical effect of making it impossible for the state to proceed with its case. The order of suppression entered below was just as detrimental to the state’s position as was the order dismissing the indictment in Tucker. When the state successfully obtained a reversal of the order of suppression, it was then for the first time in a position to proceed to trial and was entitled to the ninety days specified by Fla.R. Crim.P. 3.191(g) within which to do so. We have no hesitation in adding that had the state not prevailed on its appeal from the order of suppression, the appellee would have had to have been tried within fifteen days, because under those circumstances it could not be said that the appellee played any part in bringing about the trial delay. See State v. Williams, 344 So.2d 311 at 312 n. 3 (Fla.2d DCA 1977).

We recognize that this decision, as in Tucker, constitutes an extension of the literal language of Fla.R.Crim.P. 3.191(g), but we believe it to be our responsibility to interpret the speedy trial rule in a manner consistent with reason and logic. The rule is designed to serve the laudable purpose of insuring that persons charged with crimes are not allowed to languish in jail or otherwise suffer the indignities of a pending prosecution for an unreasonable length of time. The rule was well written and endeavored to cover as many contingencies as could be reasonably contemplated. However, there was little experience under similar rules upon which to draw, and it was impossible for the drafters of this rule to foresee the myriad of factual circumstances which have since occurred. Should we decline to interpret the rule in the manner in which we have done, the state will have been thwarted in its efforts to provide the appellee with a speedy trial without any lack of diligence on its part. Such a result would violate the spirit, if not the letter, of the rule.

REVERSED and REMANDED.

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


author: SMITH, Judge.

text:
    Barbara J. SEITZ, Appellant, v. DUVAL COUNTY SCHOOL BOARD, Appellee.
    No. CC-57.
    District Court of Appeal of Florida, First District.
    June 7, 1977.
    Rehearing Denied June 22, 1977.

      Sidney L. Matthew, Tallahassee, for appellant.
    Dawson A. McQuaig, William Lee Allen, Eva D. Peck and Wesley L, Smith, Jacksonville, for appellee.
   SMITH, Judge.

Seitz appeals from a Duval County circuit court judgment reviewing and affirming on petition for certiorari an order of the Duval County School Board dismissing Seitz, a tenured teacher. The proceeding arises under the Duval County Teachers’ Tenure Act, Chapter 21197, Laws of Florida (1941). The circuit court had jurisdiction pursuant to that Act to review the School Board’s order by petition for certiorari. Alford v. Duval County School Board, 324 So.2d 174 (Fla. 1st DCA 1975). We have jurisdiction of the appeal. Laney v. Holbrook, 149 Fla. 670, 6 So.2d 623 (1942); Article V, Section 4(b)(1), Constitution of Florida; Florida Hotel & Rest. Comm’n v. Dowler, 99 So.2d 852 (Fla.1958).

After a full hearing, the School Board ordered Seitz dismissed on two grounds: (1) Seitz’ insubordination in refusing to meet and confer with her principal in his office “regarding her leaving a class unattended,” her refusal having been grounded on the principal’s unwillingness to permit a teachers’ union representative — another teacher at the same school — to attend the conference; and (2) Seitz’ unreasonable absence from and her refusal or inexcusable failure to perform her duties by leaving classes unattended, taking students from the campus without authority and ordering students to leave her classroom and sit in the hallway in violation of school policy. The reviewing circuit court found substantial competent evidence to support the Board’s findings on the second ground. We agree.

Having determined that Seitz was properly dismissed for her absence from the performance of her duties and her refusal or inexcusable failure to discharge those duties, the circuit court found it unnecessary to pass on Seitz’ substantive defense to the insubordination charge: that the Florida Public Employees Relations Act (PERA), Section 447.501(l)(a), Florida Statutes (1975), prohibits public employers from interfering with, restraining or coercing employees in their exercise of the right to engage in “concerted activities for . . . mutual aid or protection,” Section 447.03, which Seitz urges includes the right of union presence in a supervisor’s conference which the employee reasonably apprehends will result in disciplinary action. See NLRB v. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975). After the Board’s dismissal proceedings began, but before the hearing, Seitz filed with PERC an unfair labor practice charge alleging the Board’s proceedings coerced her in the exercise of a PERA-secured right. Section 447.-503, Florida Statutes (1975). PERC’s denial of the Board’s motion to dismiss that charge is the subject of the Board’s petition for interlocutory review now pending before us in a companion case, Duval County School Board v. Seitz and PERC, No. FF-254, 346 So.2d 647.

The contract negotiated by Seitz’ union with the Board contains no provision for attendance by a union representative at a principal’s conference such as Seitz was summoned to, although the union sought such a provision in negotiations. Therefore Seitz had no right of union presence at the principal’s conference unless that right is extended by PERA as a matter of policy to all public employees. Though we could decide that substantive issue of law, which is properly presented by Seitz’ appeal in this case, it is more appropriate that we defer to and await PERC’s prior determination of the issue in proper agency proceedings. Section 447.207, Florida Statutes (1975); Maxwell v. School Board of Broward County, 330 So.2d 177 (Fla. 4th DCA 1976); PERC v. Fraternal Order of Police, etc., 327 So.2d 43 (Fla. 2d DCA 1976). Any inconvenience in our bifurcation of the issues into proceedings before the Board and PERC, operating in their respective jurisdictions, is outweighed by the benefit of preserving PERC’s primary authority to initially define and implement public employees’ substantive rights under PERA. See Town of Dedham v. Labor Relations Commission, 365 Mass. 392, 312 N.E.2d 548 (1974); Board of Education v. Helsby, 37 A.D.2d 493, 326 N.Y.S.2d 452 (1971).

Our deference to PERC’s primary jurisdiction of Seitz’ substantive claims under Weingarten does not require or permit that we dispose of Seitz’ appeal in this case without regard for the School Board’s finding that Seitz was insubordinate in refusing to attend the principal’s conference. We have no assurance that the School Board would have discharged Seitz, rather than suspending her or imposing another lesser sanction, absent the finding of insubordination.

The School Board was justified in discharging Seitz. Her substantive claim to the right of union presence at the principal’s conference was when made and is now unrecognized in Florida. It had no foundation in her contract. Seitz acted knowingly and with union advice when she refused to confer alone with her principal on matters critical to her duties. She had the clear opportunity to assert her conceived right, acquiesce in the principal’s decision under protest, participate in the conference unattended, and preserve a claim that the conference was coerced in violation of PERA and was an unfair labor practice. Thus, without sacrificing her opportunity to vindicate her asserted right and those of other public employees, she might have acknowledged the concomitant right and duty of the School Board, through its principal, to inquire into her derelictions as a teacher. Instead, Seitz chose unnecessarily to frustrate the Board’s claim of right in order to satisfy her own, thereby exacerbating disharmony which she created. We will grant Seitz no remedy for the consequence. Her insubordination in unnecessarily declaring herself free of accountability for violations of school policy, coupled with her subsequent absence once again from class, fully justified dismissal.

We do not here foreclose PERC’s consideration of Seitz’ claim that the Board, by denying her a substantive right secured by PERA, committed an unfair labor practice which should be remedied otherwise than by reinstatement. In the companion case, therefore, we have today denied the School Board’s petition for review of PERC’s order denying the Board’s motion to dismiss the unfair labor practice charge. Duval County School Board v. Seitz and PERC, 346 So.2d 647, No. FF-254 (Fla. 1st DCA). When final agency action has been taken, that and other interlocutory orders and the final order may appropriately be reviewed, if necessary, in accordance with Section 120.68 and the principles of McDonald v. Dep’t of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

We have considered Seitz’ other points on appeal in light of the record. There is no error in the circuit court’s judgment.

AFFIRMED.

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

      . We held in Alford that the Administrative Procedure Act, ch. 120, Fla.Stat. (Supp. 1976) supplanted the administrative and review procedures provided by Florida Statutes (1973) but not those prescribed by the Duval County Teachers’ Tenure Act, a special act.

      . Causes for discharge under the special act include “[¡Immoral character or conduct, insubordination, or physical or mental incapacity to perform the duties of the employment” and “[e]xcessive or unreasonable absence from the performance of duties imposed by the employment, or refusal or inexcusable failure to discharge the duties of such employment.” Ch. 21197, § 4(a), (c), Laws of Florida (1941).

      . Weingarten sustained the NLRB’s decision, construing Sections 7 and 8(a)(1) of the NLRA, 29 U.S.C. §§ 157, 158(a)(1) (1970), that the right of an industrial employee to engage in “concerted activities for . . mutual aid or protection” includes the right “to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline. . . 420 U.S. at 256, 95 S.Ct. at 963, 43 L.Ed.2d at 177.

      . Neither do we pass on the question of Seitz’ standing before PERC to file the unfair labor practice charge. See § 447.503(1), Fla.Stat. (1975), authorizing unfair labor practice proceedings “[w]henever it is charged by an employer or an employee organization . . , But see Fla.Admin.Code Rule 8H-4.01.


author: PER CURIAM.

text:
    DUVAL COUNTY SCHOOL BOARD, Petitioner, v. Barbara SEITZ and Public Employees Relations Commission, Respondents.
    No. FF-254.
    District Court of Appeal of Florida, First District.
    June 7, 1977.
    Dawson A. McQuaig, Gen. Counsel, and William Lee Allen, and Eva D. Peck, Asst. Counsel, Jacksonville, for petitioner.
    Sidney L. Matthew, Tallahassee, for respondent Seitz, and Gene L. Johnson, Tallahassee, for respondent PERC.
   PER CURIAM.

The petition for review of PERC’s interlocutory order denying petitioner’s motion to dismiss the unfair labor practice charge is

DENIED. Seitz v. Duval County School Board, 346 So.2d 644, (Fla. 1st DCA, op. filed this date); Panama City v. PERC, 333 So.2d 470 (Fla. 1st DCA 1976); Amalgamat ed Transit Union v. PERC, 344 So.2d 319 (Fla. 1st DCA 1976).

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


text:
    Darling SIPLIN, Appellant, v. STATE of Florida, Appellee.
    Nos. DD-207, FF-236.
    District Court of Appeal of Florida, First District.
    June 7, 1977.
    Richard W. Ervin, III, Public Defender, Michael M. Corin and Louis G. Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Case No. DD-207 is an appeal from an order denying postconviction relief under Florida Rule of Criminal Procedure 3.850. The public defender representing appellant filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We then allowed appellant a period of time within which to file a brief in proper person. Instead of only filing a brief, appellant filed a petition for habeas corpus covering the same subject matter and a brief in proper person therewith. We then entered an order consolidating the two cases, denying the petition for habeas corpus and ruling that we would consider appellant’s habeas corpus brief as his brief on the appeal. Upon consideration of the record and the brief, the order of the trial court is

AFFIRMED.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


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

text:
    OAKDALE PARK, LTD., Appellant, v. James BYRD and Henry Harrell, Appellees.
    No. DD-21.
    District Court of Appeal of Florida, First District.
    May 25, 1977.
    Rehearing Denied June 27, 1977.

      Gary W. Tennyson, of Tennyson & Powell, Panama City, for appellant.
    Clayton J. M. Adkinson, of Thompson & Adkinson, DeFuniak Springs, for appellees.
   RAWLS, Acting Chief Judge.

Oakdale Park, Ltd., appeals from an order fixing attorney’s fees and costs in an action to foreclose mechanic’s lien and arbitration proceeding resolving the dispute. Appellees entered into a subcontract with Oakdale whereby they were employed to furnish materials and labor and other services to Oakdale. The subcontract contained a mandatory arbitration clause. In pursuing their claim of lien, appellees filed a verified claim in which they stated that they were entitled to certain sums for labor and materials last furnished on June 20, 1974, and July 17, 1974. On November 6, 1974, without mentioning or seeking arbitration pursuant to their contract, appellees filed their complaint to foreclose mechanic’s lien, including a request for attorney’s fees. No mention was made therein of arbitration pursuant to the contract. Upon Oak-dale’s motion in the foreclosure proceedings, the trial court ordered the parties to arbitrate, which arbitration resulted in an award of damages to appellees but did not award an attorney’s fee. Oakdale paid the amount of the award to appellees, and the court thereafter entered the order appealed.

We agree with the reasoning and conclusion of our sister court in Beach Resorts Intern. v. Clarmac Marine Const., 339 So.2d 689 (Fla. 2nd DCA 1976). There the court held that “the mechanic’s lien statute, in cases initiated as lien foreclosures but submitted to mandatory arbitration, is not operative unless the judgment entered confirming, vacating or modifying the arbitration award must be enforced in favor of the plaintiff.” The Second District ruled that payment of the arbitration award and acceptance thereof constitutes settlement of the controversy between the parties; that the mode and substance of recovery in such instance is defined by the Arbitration Code and not the Mechanic’s Lien Law. Judge Hobson, speaking for the court, stated:

“This construction should not be deemed as an attempt to oust the trial court of its jurisdiction over the lien foreclosure. Instead, the operation of both the Arbitration Code and the Mechanic’s Lien Law is interdependent and compatible. There was no reason to impose a mechanic’s lien, as Beach Resorts was at all times ready and willing to comply with the decision of the arbitrator and the order of the trial judge in confirming the same. In the absence of a refusal to abide by the trial court’s judgment, it was error to impose a mechanic’s lien and award of attorney fees attributable to the arbitration previously conducted.”

Of particular import in the instant case is that the record does not demonstrate any necessity on the part of appellees, in order to protect their claim of lien, to resort to foreclosure proceedings. Had appellees promptly sought redress through their agreed upon arbitration forum and had their claim not been resolved prior to expiration of the jurisdictional time for mechanic’s lien foreclosure, then, in such event, they would have possessed a right to file the action for foreclosure of mechanic’s lien in order to protect same. A party, who has entered into a contract requiring arbitration, may not flagrantly disregard this contractual prerequisite, march down to the courthouse, file a complaint of foreclosure, and demand an attorney’s fee by reason of ignoring at the outset his contractual duty to arbitrate.

REVERSED.

SMITH, J., concurs.

McCORD, J., dissents.

McCORD, Judge,

dissenting.

Appellees had a right to file the action for foreclosure of mechanic’s lien in order to protect their lien although the dispute was subject to adjudication by mandatory arbitration unless waived. A failure of appellant to invoke mandatory arbitration in the foreclosure suit would have constituted a waiver. Appellees were not required to anticipate that there would be no waiver and thus forego filing the foreclosure suit. Since they had a right to protect their lien by filing the suit, I consider that appellees are entitled to a reasonable fee for the services of their attorney but limited to only a fee for the filing of such suit; that they are not entitled to a reasonable attorney’s fee for the arbitration proceeding. I would, therefore, remand for the fixing of a reasonable fee as so limited.


author: SANDERS, Chief Justice. DIXON, Justice CALOGERO, Justice, DENNIS, Justice,

text:
    STATE of Louisiana v. Henry C. SHIVERS.
    No. 59080.
    Supreme Court of Louisiana.
    May 16, 1977.
    Concurring Opinion June 13, 1977.

      Daryl Gold, Simms & Gold, Leesville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Henry Shivers with possession of heroin with the intent to distribute in violation of LSA-R.S. 40:966. After a trial, the jury found defendant guilty as charged. The court sentenced defendant to life imprisonment. He appeals his conviction and sentence, relying upon two assignments of error. Finding reversible error in his first assignment of error, it is unnecessary that we consider his second assignment.

In his first assignment of error, defendant correctly maintains that the trial court erred in denying his motion to suppress the heroin. The facts surrounding the seizure of the evidence which is the basis of his motion are:

On December 10, 1975, at approximately noon, Agent Jack Miller met with a proven confidential informant and arranged for the informant to make a heroin purchase from Junior Porter, a suspected marijuana and heroin dealer, at Porter’s house located at 4108 Mayfield Street in Shreveport. Agent Miller requested Agent Sam Bolen’s assistance in establishing surveillance of the informant’s activities relative to the narcotics transaction.

At approximately 8:00 that evening, Agent Miller searched the informant and finding no narcotics on his person, gave him fifty dollars with which to make the purchase. Agents Miller and Bolen positioned themselves separately at locations near Mayfield Street and maintained radio contact. Agent Miller saw his confidential informant drive up in front of 4108 Mayfield, park his car, and exit his vehicle according to prearranged plans. Miller, however, could not see the informant enter 4108 Mayfield from his vantage point. A short time thereafter, Miller saw the informant return to his car and drive away. Agent Miller immediately drove to the prearranged meeting place and met with his informant, who told him that he had made the buy from Junior Porter at 4108 May-field. Miller radioed Agent Bolen, who was still at his surveillance location and informed him that “a purchase had gone down at the third house west of Broadway on Mayfield.” Agent Bolen was not located where he could witness the activities of the informant. Agent Miller ran a field test on the substance believed to be heroin which his informant had purchased from 4108 Mayfield in a one cent party balloon. The test proved the presence of heroin in the substance. When Agent Miller tried to radio Bolen that the substance purchased was indeed heroin, he was unable to make radio contact because Bolen was in the process of stopping a vehicle. Agent Bolen stopped the vehicle after witnessing the following occurrences:

With the knowledge that Agent Miller’s informant had purchased a substance thought to be heroin from the third house west of Broadway on Mayfield, Bolen saw a black car stop in front of the third house from the corner. Two men exited the vehicle and entered the third house from the corner on the north side of Mayfield. They remained inside only a short time and then returned to their car. A brown car also pulled up and a man exited and entered the third house from the corner on the other side of Mayfield, directly across the street from the house which the other two men had entered and exited. The man quickly returned to his car and drove away in the direction of Agent Bolen, who v/as positioned inside a 1972 red Ford vehicle with three antenaes, a somewhat conspicuous, although unmarked, police unit. The brown car turned on its left turn signal indicator but did not make the left turn and instead turned off the blinker and proceeded directly ahead to a position approximately thirty feet from Bolen’s vehicle and turned on its bright lights and slowed to a stop. It then immediately proceeded onward and turned at the next corner and returned to its previous location in front of 4108 Mayfield. The driver of the brown vehicle had a short conversation with the men in the black car and then both vehicles drove away. Agent Bolen radioed other police to stop the brown vehicle and radioed Agent Miller to assist him in stopping the black vehicle. Agent Bolen, through the use of siren and red flashing police lights, pulled the black car over. Miller drove to the scene as the black car was coming to a stop.

Bolen asked the men to get out of the car and come to the rear of the vehicle with their hands where he could see them. He stated that he had “reasonable grounds to believe the vehicle contained narcotics.” Henry Shivers, the driver, and Claude King, his passenger in the front seat, exited the car in compliance with the officer’s orders. Agent Bolen asked Miller to “take custody” and Miller “patted down” the two men. Once they exited the car and presented identification, Bolen recognized Shivers, by name, and Claude King, by sight, as persons suspected of being involved in narcotics.

Agent Bolen looked into the automobile and finding a thirteen-year-old boy in the back seat, ordered him out. Bolen then began a search of the car. He found a syringe and needle under the edge of the passenger’s side of the front seat and a paper bag containing “one cent” balloons (the usual packaging for heroin in that area) on the front seat of the vehicle. After his find, Agent Bolen walked to the rear of the car and asked Agent Miller if he had searched the individuals. Miller told him that he had only patted them down for weapons. Bolen then began walking to the car to continue his search of the vehicle, when he stopped and reached into thirteen-year-old Anthony Shiver’s left pocket. Finding nothing, he then reached into the boy’s right pocket and found a tin foil packet containing a substance, which when tested proved to be heroin.

The Fourth Amendment to the United States Constitution provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Article 1, § 5 of the Louisiana Constitution of 1974 also provides:

“Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.”

The right of law enforcement officers to stop, interrogate, and frisk one reasonably suspected of criminal conduct is recognized by LSA-Code of Criminal Procedure Article 215.1, which provides:

“A. A law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or a misdemeanor and may demand of him his name, address and an explanation of his actions.
“B. When a law enforcement officer has stopped a person for questioning pursuant to this Article, and reasonably suspects that he is in danger of life or limb, he may search the outer clothing of such person for a dangerous weapon or for any other thing the possession of which may constitute a crime.
“C. If the law enforcement officer finds a dangerous weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”

The right to stop and frisk is equally well recognized in the jurisprudence, both federal and state. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Dixon, La., 337 So.2d 1165 (1976); State v. Cook, La., 332 So.2d 760 (1976); State v. Perique, La., 340 So.2d 1369 (1976); State v. Rogers, La., 324 So.2d 403 (1975); State v. Jefferson, La., 284 So.2d 882 (1973).

The right to make an investigatory stop and question the individual detained must be based upon reasonable suspicion that he has been, is, or is about to be engaged in criminal conduct. State v. Cook, supra; State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970). When such a stop is made, the officer may question the person concerning his identity and actions. If the officer reasonably suspects that he or another is in danger, he may also for protection conduct a limited search of the outer clothing of such person. The limited search is often referred to as a frisk. Normally, a frisk is a pat-down of the outer surfaces of a suspect’s clothing. It represents a minimal intrusion upon personal privacy.

In the instant case, Agent Bolen, the officer who actually stopped defendant’s vehicle by signalling the red police lights and siren, was acting upon the following information:

The Porter brothers, reputed narcotics dealers, were under surveillance. They resided on opposite sides of Mayfield Street from each other; both resided in the third house from the corner of Broadway. A confidential informant had made a buy of what the officers believed to be heroin from one of the two Porter residences. The two men in Shiver’s black automobile had entered and exited quickly from one of the Porter residences, and had conversed with the driver of a brown car, who Agent Bolen believed had recognized him as an undercover narcotics officer.

With this knowledge Agent Bolen stopped the vehicle in which the two men were riding. He radioed other police to stop the other vehicle. After stopping Shiver’s vehicle and being presented identification, Agent Bolen recognized Claude King, on sight, and Henry Shivers, by name, as persons involved in drug violations. He then searched the vehicle, wherein he found narcotics paraphernalia which motivated him to search the pockets of young Anthony Shivers for narcotics.

In our opinion, the totality of the circumstances was such as to give rise to a reasonable suspicion that the occupants of the vehicle were engaged in narcotics offenses. Hence, the officers had the right to stop the vehicle under Article 215.1 of the Louisiana Code of Criminal Procedure.

Under the stop and frisk statute, the officers were authorized to question the men about their presence at the known drug outlet, and if they reasonably suspected danger, to frisk the outer garments of the occupants. However, under the statute, the officers were not authorized to search the vehicle. There is no evidence that the syringe and needle found under the passenger side of the front seat, nor the bag of balloons found on the front seat were in plain view. Consequently, we conclude that the seizure of these items was unconstitutional.

After Agent Bolen found the materials in the car, he returned to the rear of the car and asked Agent Miller if he had searched the individuals. He answered that he had patted them down.

After the unproductive frisk, Agent Bolen was unauthorized to make a search of Anthony Shiver’s person for narcotics and seize the packet of heroin in his pocket. Bolen testified that after finding the syringe and balloons, he was sure that the boy had the heroin because he was just “too quiet.” As we have noted, however, the syringe and balloons were seized in an unconstitutional search. Hence, they cannot supply probable cause for a search of the person. Any evidence produced as a result of an illegal search and seizure is tainted and thus inadmissible under the fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverthorne v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).

We conclude that although Agent Bolen was legally entitled to make the investigative stop of defendant, he exceeded his statutory and constitutional authority in searching defendant’s vehicle, as a result of which he ultimately obtained the evidence which is the subject of defendant’s motion to suppress. Therefore, we hold that the trial court erred in denying defendant’s motion to suppress.

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded for a new trial.

DIXON, J., concurs with reasons.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs and assigns reasons.

SUMMERS, J., dissents.

DIXON, Justice

(concurring).

While I agree with the result reached by the majority, I respectfully disagree with the reasons used to support the conclusion. It is unnecessary to determine whether or not Agent Bolen was authorized to search the vehicle. The stop of the car and its passengers was not supported by probable cause and therefore could not form the basis for a subsequent valid search and seizure. The Fourth Amendment to the United States Constitution and Article 1 § 5 of the Louisiana Constitution are the basis for an essential requirement of a free country: no one may be subject to a search or seizure without probable cause.

As the majority appears to concede, the “stop” of defendant’s vehicle was not supported by probable cause. Rather, the action of the police is sought to be sought to be justified as a lawful “stop and frisk” pursuant to C.Cr.P. 215.1 (reproduced in the majority opinion). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court delineated the underlying principles to be applied in these cases:

“If this case involved police conduct subject to the Warrant Clause of the Fourth Amendment, we would have to ascertain whether ‘probable cause’ existed to justify the search and seizure which took place. However, that is not the case. We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, . . . (citations omitted). But we deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.
“Nonetheless, the notions which underlie both the warrant procedure and the requirement of probable cause remain fully relevant in this context.” 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905. (Emphasis added).

It is clear that the Fourth Amendment is the standard against which the police conducted must be judged. Since the facts known to Agent Bolen did not reach the level of probable cause, the stop of defendant’s car was unauthorized and therefore nothing seized pursuant to that stop was admissible.

There is no meaningful distinction between the terms “stop and frisk” and “arrest (seizure of the person) and search,” except as a matter of degree. The Supreme Court, in Terry v. Ohio, supra, recognized the danger of classifying police conduct according to this terminology:

“Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden ‘seized’ Terry and whether and when he conducted a ‘search.’ There is some suggestion in the use of such terms as ‘stop’ and ‘frisk’ that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a ‘search’ or ‘seizure’ within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime — ‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’ Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.” 392 U.S. at 16-17, 88 S.Ct. at 1877, 20 L.Ed. at 903. (Emphasis added).
“The distinctions of classical ‘stop-and-frisk’ theory thus serve to divert attention from the central inquiry under the Fourth Amendment — the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security. ‘Search’ and ‘seizure’ are not talismans. We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a ‘technical arrest’ or a ‘full-blown search.’” 392 U.S. at 19, 88 S.Ct. at 1878-79, 20 L.Ed.2d at 904. (Emphasis added).

In one of the companion cases to Terry, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the Supreme Court (through the same author) said:

“Section 180-a, unlike § 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to ‘stop’ people, ‘demand’ explanations of them and ‘search [them] for dangerous weapon[s]’ in certain circumstances upon ‘reasonable suspicion’ that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of § 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. State of California, 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure ‘is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.’ Cooper v. State of California, 386 U.S. 58, 61, 87 S.Ct. 788, 790, 17 L.Ed.2d 730 (1967).” 392 U.S. at 60-61, 88 S.Ct. at 1901-02, 20 L.Ed.2d at 933-34. (Emphasis added).

Whether the procedure that was employed in this case is termed a “stop,” an “investigatory stop” or a “temporary detention,” when Agent Bolen pulled the defendant’s car over, ordered the passengers out and to the back of the car and told Agent Miller to “take custody” of the occupants, the defendant was under arrest. C.Cr.P. 201 defines arrest as follows:

“Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.”

See State v. Kinnemann, supra.

Unless the arrest was for probable cause, it was not lawful. Neither the majority nor the State contend that probable cause to arrest existed at the time that the defendant’s vehicle was stopped. Therefore, any evidence seized pursuant to the unlawful arrest was inadmissible.

CALOGERO, Justice,

concurring.

Although I believe that the majority correctly reverses the accused’s conviction, I concur in the decision for the reasons stated by Mr. Justice Dixon, and because I believe that the majority wrongly states in footnote three that we should examine both the evidence taken at the trial of the case as well as the evidence taken at the suppression hearing when we review the correctness of the trial judge’s ruling on a motion to suppress.

DENNIS, Justice,

concurring.

I concur in the decision for the reasons stated by Justices DIXON and CALOGE-RO.

      . At the hearing on the motion to suppress, Agent Miller testified that the confidential informant made the heroin purchase at 4108 Mayfield, the home of Clyde Porter. At the trial on the merits, he testified that he was confused at the hearing on the motion to suppress and that the informant made the heroin purchase at Junior Porter’s residence, 4108 Mayfield. See footnote 3.

      . See footnote nos. 1 and 3.

      .In determining whether the ruling on the motion to suppress was correct, we are not limited to the evidence adduced at the trial of the motion. We may consider all pertinent evidence given at the trial of the case. State v. Smith, 257 La. 1109, 245 So.2d 327 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967); In accord: People v. Braden, 34 Ill.2d 516, 216 N.E.2d 808 (1966); Commonwealth v. Young, 349 Mass. 175, 206 N.E.2d 694 (1965).

      . It should be noted that even if the analysis employed by the majority is used, Agent Bolen did not have sufficient grounds to “reasonably suspect” that the defendant was committing, had committed or was about to commit a crime. C.Cr.P. 215.1. Taking the facts known to the agent as described in the majority opinion, the activity of the occupants of the defendant’s car is as consistent with purely innocent behavior as with suspected criminal activity. Although the defendant and another individual entered a house on Mayfield Street where the confidential informant “may” have purchased heroin, and that house was the residence of either Junior or Clyde Porter (“reputed” narcotic dealers), the two men left the house carrying nothing. At this time Agent Bolen did not even know who these two men were. Subsequently, the driver of a brown automobile (whom Agent Bolen suspected had identified his vehicle as a police unit) spoke with the men in the black car and then both cars drove off. At this point Agent Bolen pulled the defendant’s car over. Only after the occupants left the car (according to Agent Bolen’s instructions) was Agent Bolen able to identify the occupants. The circumstances surrounding this stop are analogous to those in State v. Saia, 302 So.2d 869 (La.1974), when this court found that the seizure of the defendant could not be justified as a “stop” under C.Cr.P. 215.1. See also, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
      In State v. Kinnemann, 337 So.2d 441 (La.1976), two police officers received information from a confidential informant that an individual was selling pounds of marijuana and cocaine from a specific residence on Dante Street and that the informant had seen the contraband in the house. The officers staked out the premises and saw one of the defendants enter the house, to reappear fifteen minutes later, with two paper bags. The defendant then re-entered his car and drove off. The police followed the car for a short while and then stopped the vehicle. In that situation, this court held that the actions of the defendant were more consistent with innocence than with guilt (notwithstanding the fact that the defendant, emptyhanded, had entered a residence suspected of being a drug distribution outlet and emerged a short time later with two paper bags) and that the police did not have probable cause to even stop the defendant’s vehicle. The facts in Kinnemann are even more indicative of possible guilt than those in the present case, and yet the stop was unauthorized under C.Cr.P. 215.1. Similarly, the facts known to the agent here did not support an “investigatory stop” under C.Cr.P. 215.1.