author: MOORE, Judge.

text:
    Ronald M. TAUBER, D. O., Petitioner, v. The STATE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS, Respondent.
    No. 78-787.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1978.
    Walton B. Hallowes, Jr., of Wells, Gattis & Hallowes, Orlando, for petitioner.
    Joseph W. Lawrence II, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, for respondent.
   MOORE, Judge.

Petitioner seeks our writ of certiorari directed to the State Board of Osteopathic Medical Examiners (referred to as Board) as a result of the latter’s temporary suspension of Petitioner’s license to practice osteopathy in the State of Florida. Pursuant to Section 120.60, Florida Statutes (1977), Petitioner received by certified mail a “Notice of Emergency Hearing to Consider Emergency Suspension of License.” The notice of hearing was received on March 15, 1978 for a hearing to be conducted on March 17, 1978. The notice contained the charges against the Petitioner and advised him of his right to be represented by counsel, to present testimony, to call and cross-examine witnesses, and to present written evidence for argument. Subsequent to the hearing, at which time the Petitioner appeared personally and through counsel, the Board, on March 23,1978, issued its order of emergency suspension.

Petitioner’s contentions are two-fold: (1) that he was denied procedural due process under statutory requirements and the Constitutions of the United States and the State of Florida, and (2) that the order of emergency suspension of his license failed to demonstrate an immediate danger and necessity as required by Section 120.-54(9)(a), Florida Statutes (1977). We will consider each of these contentions separately-

The Florida State Board of Osteopathic Medical Examiners is a state agency authorized by the Florida Legislature to examine and license, including the power to suspend or revoke, osteopathic physicians within the State of Florida. Chapter 459, Florida Statutes (1977). The Florida Administrative Procedure Act, Chapter 120, Florida Statutes (1977), governs the procedural format for the Board’s actions concerning the licensing of osteopathic physicians. Section 120.60(5) and (6) provide:

“(5) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license.
(6) If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension of a license, it shall show compliance in its order with the requirements imposed by subsection 120.54(9) on agencies making emergency rules. Summary suspension may be ordered, but a formal suspension or revocation proceeding under this section shall also be promptly instituted and acted upon.” (Emphasis added).

The requirements of Section 120.54(9)(a) are:

“If an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, the agency may adopt any rule necessitated by the immediate danger by any procedure which is fair under the circumstances and necessary to protect the public interest, provided that:
1. The procedure provides at least the procedural protection given by other statutes, the Florida Constitution, or the United States Constitution.
2. The agency takes only that action necessary to protect the public interest under the emergency procedure.
3. The agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. In any event, notice of emergency rules, other than those of educational units or units of government with jurisdiction in only one county or a part thereof, shall be published in the first available issue of the Florida Administrative Weekly. The agency’s finding of immediate danger, necessity, and procedural fairness shall be judicially re viewable.”

Petitioner argues that Section 120.-54(9)(a)(l) guarantees the procedural protection granted under other statutes and cites us to Section 459.14(7) which requires at least 20 days written notice before an osteopathic physician’s license can be suspended or revoked, even temporarily. We disagree.

Section 459.14(7) provides:

“The board may not refuse to issue or renew, or to suspend or revoke, any license for any of these causes unless the person accused has been given at least twenty (20) days’ notice in writing of the charge against him and a public hearing by the board. Within ten (10) days following the entry of the final order by the board, a copy thereof shall be delivered to the respondent, either personally or by registered or certified mail.”

When Section 459.14(7) is read in pari mate-ria with Section 120.60(5) and 120.60(6) it becomes obvious that Section 120.60(5) and Section 459.14(7) both provide for a final determination as to suspension or revocation of a license. Neither section deals with the temporary or summary suspension of a license which is provided for in Section 120.-60(6). In our opinion, there would be no need for the Legislature to have adopted this latter section if both a temporary or summary suspension and a final suspension required the same procedural notice requirements. The Legislature has specifically provided for summary suspension when an agency finds an immediate serious danger to the public health, safety or welfare and promptly institutes formal proceedings subsequent to the summary suspension. To accept Petitioner’s contention therefore would be tantamount to declaring an act of the Legislature to be a nullity. This we will not do.

We next direct our attention to the question of procedural due process as applied to the facts in this case. Due process is necessarily a flexible term and its application depends upon the demands of the particular situation. As stated by the United States Supreme Court in Matthews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976):

“These decisions underscore the truism that ‘[d]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . [D]ue process is flexible and calls for such procedural protections as the particular situation demands.”

Fundamentally, due process requirements are satisfied if an opportunity for a meaningful hearing is provided prior to the final deprivation of a property interest. Weighing the governmental and private interests which are affected, we find that the case sub judice meets the constitutional test of due process.

Unlike the facts in Colorado State Board of Medical Examiners v. District Court of the Seventh Judicial District, 551 P.2d 194 (Colo.1976) where the Supreme Court of Colorado, under statutes similar to those involved herein, sustained the temporary suspension of a medical doctor’s license without a hearing, the Petitioner here was provided notice and an opportunity to be heard. Subsequent to the temporary revocation, formal proceedings were instituted by the Board as required by Section 120.-60(6). At the hearing on the temporary suspension, Petitioner appeared with counsel, testified at considerable lenghth, had an opportunity to present evidence and to examine and cross examine witnesses, and had an opportunity to present argument. We find that the procedure utilized satisfies due process requirements. Were it not for the requirement of prompt, formal proceedings subsequent to the temporary suspension, we might hold otherwise.

Petitioner next contends that the order of emergency suspension fails to demonstrate the requisite “immediate danger” and “necessity” as required by Florida Statute, Section 120.54(9)(a). One need only look to the findings of the Board as contained in its order of emergency suspension to determine the emergency nature of the proceeding below. Summarized, those findings are that on November 16, 1977, the Petitioner’s hospital privileges at Florida Hospital, Orlando, Florida were revoked; that on November 30,1977, Petitioner’s hospital privileges were revoked at Orlando General Hospital, Orlando, Florida, upon a finding of the hospital’s medical staff that Petitioner failed to demonstrate the satisfactory professional skill and judgment expected of him; that on March 6, 1978, one of Petitioner’s abortion patients suffered a perforation of the uterus from which she expired after Petitioner failed to properly supervise her recovery for some 33 hours; and, that Petitioner would continue to act in such fashion as to constitute an immediate serious danger to the public health, safety and welfare.

It is the position of the Petitioner that because the first two of the above findings occurred more than 110 days prior to the emergency hearing, there was no demonstration of an immediate emergency. Petitioner therefore would have us, and the Board, overlook the straw that broke the camel’s back, the death of a patient due to alleged failure to comply with minimal standards of acceptable osteopathic medical practice. We can conceive of no greater emergency of immediate necessity than that which endangers the preservation of human life.

Accordingly, certiorari is DENIED and the Board is directed to conduct formal proceedings pursuant to Section 120.60(6) in a timely manner upon adequate notice.

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


source: Caselaw Access Project

author: BERANEK, Judge.

license: Public Domain

text:
    Harry K. SMITH, Petitioner, v. STATE of Florida ex. rel. David H. BLUDWORTH, State Attorney for the Fifteenth Judicial Circuit and Enforcing Authority under Chapter 501, Part II, Florida Statutes, Respondent.
    No. 78-1316.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1978.
    Timothy P. McCarthy of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, Palm Beach, for petitioner.
    Steven W. Gomberg, Asst. State’s Atty., West Palm Beach, for respondent.
   BERANEK, Judge.

This matter was considered on petition for writ of certiorari pursuant to Fla.R. App.P. 9.100. The petition fails to demonstrate a preliminary basis for review. The brief filed in support of same is not authorized by Rule 9.100(e), but even if same were considered, the ruling remains the same. The petition for writ of certiorari is hereby DENIED.

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


author: McCORD, Chief Judge.

text:
    STATE of Florida, Appellant, v. Larry B. McNEIL, Appellee.
    No. HH-195.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1978.
    Rehearing Denied Sept. 19, 1978.

      Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, for appellee.
   McCORD, Chief Judge.

This is an interlocutory appeal brought by the state from an order granting appel-lee’s motion to dismiss an information charging him with burglary of a structure. The ground for dismissal was double jeopardy. We affirm.

During appellee’s trial for burglary of a structure, the prosecutor, referring to the period immediately following the arrest, asked the arresting officer,

“Did he (appellee) make any statements to you? Did you attempt to question him at all?”

The officer answered,

“We advised him of his rights and he made no statements.”

At that point, defense counsel objected and the jury was excused from the courtroom. Defense counsel argued her objection contending that the answer of the officer was a comment upon defendant’s exercise of his Fifth Amendment privilege against self-incrimination. The trial court found that the prosecutor’s question was not prosecutorial misconduct because the answer given by the officer was not expected. We agree. The prosecutor had explained that the purpose of her question was to bring out that defendant had given the officer a false name. The court then offered to give a curative instruction to the jury, which defense counsel refused contending that the error could not be cured. The court called a recess and instructed counsel to research the law. Following the recess, the prosecuting attorney admitted error and stated that she would stipulate to the propriety of a mistrial being granted. The record does not show that defense counsel said anything at this point. The court then said:

“I think we are constrained to do it, because they are simply going to reverse it. So let the record reflect that as mandated by the Supreme Court of the United States of America as to adverse comment concerning a defendant’s lack of response or making no statements or testifying, et cetera, et cetera, et cetera, that in view of that, the Court is constrained and is joined in by the State with the Defense to declare a mistrial. And a mistrial is hereby declared.” (Emphasis supplied.)

Appellee, in support of the trial court’s dismissal of the information on grounds of double jeopardy now contends that the error upon which the trial court granted a mistrial was not fundamental error, and, therefore, a further trial on the same charge constitutes double jeopardy. In United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), the United States Supreme Court stated as follows on this subject:

“Certainly it is clear beyond question that the Double Jeopardy Clause does not guarantee a defendant that the Government will be prepared, in all circumstances, to vindicate the social interest in law enforcement through the vehicle of a single proceeding for a given offense. Thus, for example, reprosecution for the same offense is permitted where the defendant wins a reversal on appeal of a conviction. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); See Green v. United States, 355 U.S. 184, 189, 78 S.Ct. 221, 224, 2 L.Ed.2d 199, 205 [61 A.L.R.2d 1119] (1957). The determination to allow reprosecution in these circumstances reflects the judgment that the defendant’s double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decision making resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error. But it is also clear that recognition that the defendant can be reprosecuted for the same offense after successful appeal does not compel the conclusion that double jeopardy policies are confined to prevention of prosecutorial or judicial overreaching. For the crucial difference between reprosecution after appeal by the defendant and reprose-cution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury, and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has been deprived of his ‘valued right to have his trial completed by a particular tribunal.’ See Wade v. Hunter, 336 U.S. 684, at 689, 69 S.Ct. 834, 93 L.Ed. 974, at 978.
If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error. In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v. Perez, 9 Wheat. [579,] at 580 [6 L.Ed. 165, at 166].” (Emphasis supplied by this court.)

In the case sub judice, appellee neither moved for a mistrial nor consented to a mistrial. His silence in the face of the statements of the state and those of the trial judge in granting the mistrial cannot be construed as consent. See State v. Grayson, 90 So.2d 710 (Fla.1956). Thus, the remaining question for determination is whether or not there was a manifest necessity that the trial judge grant a mistrial or that the ends of public justice would otherwise be defeated if a mistrial were not granted. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; United States v. Jorn, supra. Neither of these circumstances was present upon the trial judge’s declaration of a mistrial here. The error was not fundamental; it was not one which invariably requires reversal. See our opinion in Gillian v. State, Case No. FF-59, opinion filed August 18, 1977, (ruling on petition for rehearing stayed pending the Supreme Court of Florida’s ruling in Clark v. State) 363 So.2d 331; Nevels v. State, 351 So.2d 762 (Fla. 1 DCA 1977); our opinion in Reynolds v. State, Case No. GG-128, opinion filed January 31, 1978, (mandate stayed pending disposition by Supreme Court in Clark v. State and State v. Bostic, 363 So.2d 331). This point is now solidified by the Supreme Court’s opinion in Clark v. State and State v. Bostic, opinion filed July 28, 1978, wherein that court said as follows:

“When there is an improper comment, the defendant, if he is offended, has the obligation to object and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection. The trial may then proceed, but he may not again raise the objection as a point on appeal. If the defendant fails to object or if, after having objected, he does not ask for a mistrial, his silence will be considered an implied waiver. Cf. Spenkelink v. State, 350 So.2d 85 (Fla.1977), cert. den., 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). The important consideration is that the defendant retain primary control over the course to be followed in the event of such error. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).”

The trial judge was correct in ruling that his declaration of a mistrial barred further prosecution of appellant for the crime charged.

AFFIRMED.

BOYER, J., and MASON, ERNEST E., Associate Judge, concur.


author: PER CURIAM.

text:
    James Talmadge CRUMBLEY, Appellant, v. Patricia Ann CRUMBLEY, Appellee.
    No. II-443.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1978.
    W. A. Cleveland, Jr., Jacksonville, for appellant.
    R. Lee Utley of Booher & Utley, Jacksonville, for appellee.
   PER CURIAM.

An appeal from an order directing appellant to pay arrearages in child support upon pain of being sentenced for contempt. The trial court’s order is deficient only in its failure to make the findings of fact required by Faircloth v. Faircloth, 339 So.2d 650 (Fla. 1976). See also Garo v. Garo, 347 So.2d 418 (Fla. 1977).

The order from which the appeal is taken will be affirmed, but further proceedings upon that order, in the nature of sanctions for contempt, must be predicated upon further findings as required by Faircloth, supra.

AFFIRMED.

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


author: ERVIN, Judge.

text:
    BANK OF PORT ST. JOE (a proposed new state banking association), Petitioner, v. STATE of Florida, DEPARTMENT OF BANKING AND FINANCE and Gerald A. Lewis as Comptroller and Head of the Department, Respondent.
    No. JJ-484.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1978.

      Clyde M. Taylor, Jr. of Dickinson, Levy & Taylor, Tallahassee, for petitioner.
    S.Craig Kiser, New Port Richey, David C. Gaskin, Wewahitchka, Fred N. Witten, Port St. Joe, for respondent.
   ON MOTION TO DISMISS

ERVIN, Judge.

Respondent, Department of Banking and Finance, filed a motion to dismiss petitioner’s notice seeking review, alleging that petitioner filed its notice more than 30 days from the rendition of the order sought reviewed, thus precluding our jurisdiction. The order from which the appeal was taken was entered March 31, 1978, and bore a certificate of service of the same date. The notice was not filed until May 3, 1978, or 33 days thereafter. We must first examine the appropriate rules, cases and statutes pertaining to administrative review in an effort to determine whether our jurisdiction was correctly invoked.

Fla.R.App.P. 9.110(b) provides that the jurisdiction of the appellate court is effected by filing notice “with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.” Rendition of an order is defined as “the filing of a signed, written order with the clerk of the lower tribunal.” Fla.R.App.P. 9.020(g). The Department of Banking and Finance, an administrative agency, is a lower tribunal. Fla.R.App.P. 9.020(d); cf. State of Florida, Department of Health and Rehabilitative Services v. Samuel Barr, No. JJ-199 (Fla. 1st DCA, July 18, 1978). It follows from the above cited rules that a notice must be filed with the agency’s “clerk” within 30 days after an order has been rendered, otherwise we have no jurisdiction.

It is true that we previously held in Dubin v. Department of Business Regulation, 252 So.2d 290 (Fla. 1st DCA 1971), and Murphy v. State, Department of Administration, 342 So.2d 147 (Fla. 1st DCA 1977) that three days must be added to allow for mailing, or a total of 33 days, before we are divested from jurisdiction in reviewing agency orders. We believe, however, that the rationale of those decisions has been eroded both by the adoption of the 1978 appellate rules and by the Florida Supreme Court’s decision in Fla. Admn. Comm’n. v. Dist. Court of Appeal, 351 So.2d 712 (Fla. 1977). In Fla. Admn. Comm’n., our Supreme Court held that the First District Court of Appeal was without jurisdiction to entertain an appeal of an agency rule filed more than 30 days after the rule had been filed with the Department of State. While the court’s decision was not concerned with the appeal of an agency order, as here, we do not believe this is a material distinction. The decision broadly stated, “The time limitation of Rule 4.5(c)(1), Florida Appellate Rules, for filing a petition for review is jurisdictional and cannot be waived by the court.” Id. at 715. Additionally, Fla.R. App.P. 9.020(e) defines “order” as including both the rule and order of the lower tribunal.

Turning to the Administrative Procedure Act, we find it is of no assistance as to the type of procedure agencies should follow when filing final orders. It requires only that a “final order in a proceeding which affects substantial interests shall be in writing or stated in the record . . .’’ Section 120.59(1), Florida Statutes (1977). The Act is explicit in its requirement that “an agency decision shall be final when reduced to writing.” Section 120.52(9). Agencies are, however, authorized to adopt rules of practice setting forth the “requirements of all formal and informal procedures . . . .” Section 120.53(l)(b). If an agency does adopt any such rule of practice pertaining to the filing of its final orders, the rule must not be inconsistent with Fla.R.App.P. 9.020(g), requiring that the written order be filed with the clerk of the agency whose order is sought to be reviewed.

Fla.R.App.P. 9.020(g) is clear that before an order is rendered it must be filed with the clerk of the appropriate agency. Here no proof was presented that the order sought to be reviewed had been filed with the person specifically designated as clerk or that there was a person who customarily maintained records of agency proceedings in the absence of specific designation or rule.

A peripheral question, not directly raised by the parties but one which we feel should be addressed in the event proof is lacking that the order was rendered, is what are the consequences to a party who improvidently files an appeal from an order which was reduced to writing but never rendered? The Supreme Court, in its construction of former appellate rules 1.8, 3.2(b), and 6.2, pertaining to rendition of both civil and criminal appeals, has supplied a ready answer. Such notice shall “not be subject to dismissal. . . . [but] shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered.” Williams v. State, 324 So.2d 74, 79 (Fla.1975). While the rules have since been amended, there is no logical reason why a different result should now obtain.

Finding there has been a material error in procedure or a failure to follow prescribed procedure, Section 120.68(8), this cause is remanded to respondent for the purpose of holding a hearing to determine whether the order sought to be reviewed was rendered in compliance with the 1978 Florida Appellate Rules.

Remanded for further proceedings not inconsistent with this opinion.

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

      . Rule 4.5(c)(1) of the 1962 rules required, as does Rule 9.110(b), that the appeal be filed within 30 days “of the order . . . to be reviewed.”

      . Committee note to Rule 9.020(e) states that the term “was broadly defined to include all final and interlocutory rulings of a lower tribunal and rules adopted by an administrative agency.” 32 Fla.Stat.Ann. 4 (1978 special pamphlet).

      . Even in the absence of an agency rule of practice, Fla.R.App.P. 9.020(b), in its definition of “clerk”, suggests that evidence may be presented to reveal “the official or agent who most closely resembles a clerk in the functions performed.” The committee note to 9.020(b) states that the term “clerk” includes the person who in fact maintains records or proceedings in the lower tribunal where no person is specifically and officially given that duty. Thus, even if no agency rule is adopted, there would be no violation of the appellate rules if evidence were, presented revealing the person who in fact maintained agency records. We are not asked, nor do we decide at this juncture, whether an agency’s failure to adopt rules of practice designating an agency clerk is a violation of the rulemaking provisions of the APA.

      .See comment to Fla.R.App.P. 9.110(b).


author: GRIMES, Chief Judge.

text:
    CHEEZEM DEVELOPMENT CORPORATION, Appellant, v. MADDOX ROOF SERVICE, INC., Appellee.
    No. 78-61.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1978.
    Rehearing Denied Sept. 13, 1978.
    John T. Allen, Jr., P. A., and Walter D. Logan, St. Petersburg, for appellant.
    No appearance for appellee.
   GRIMES, Chief Judge.

May a party who has failed to interpose a compulsory counterclaim in a suit which is still pending bring an independent action on the same claim? Surprisingly, the answer seems to be yes..

Appellee (Maddox) originally filed suit against appellant (Cheezem) to collect for certain roofing work. Cheezem answered but failed to file a counterclaim. Later Cheezem moved for leave to file a counterclaim against Maddox for improper performance of the roofing work for which Maddox was seeking payment. The motion was denied. This court denied, without opinion, a petition for certiorari directed to the order of denial. Cheezem Development Corp. v. Maddox Roof Service, Inc., 352 So.2d 178 (Fla. 2d DCA 1977).

Cheezem then filed a separate suit against Maddox asserting the same cause of action which Cheezem had tried to file as a compulsory counterclaim in the first suit. On motion by Maddox, the court dismissed the new suit with prejudice because of Cheezem’s failure to successfully interpose the compulsory counterclaim in the first action. The first action remains pending. Cheezem appeals the order dismissing the second suit.

The fact that this court denied a petition for writ of certiorari from the order refusing to permit the filing of the counterclaim in the first suit is irrelevant to the disposition of this appeal. The denial of a petition for certiorari without an opinion does not constitute an adjudication on the merits. Don Mott Agency, Inc. v. Harrison, 362 So.2d 56 (Fla. 2d DCA 1978).

Rule 1.170(a), Florida Rules of Civil Procedure provides in part:

(a) Compulsory Counterclaim. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.

While the rule does not specifically say so, where the first suit has proceeded to judgment, the courts are in agreement that a party who has failed to file a compulsory counterclaim cannot thereafter assert that claim in a separate action. Hightower v. Bigoney, 156 So.2d 501 (Fla.1963); Stone v. Pembroke Lakes Trailer Park, Inc., 268 So.2d 400 (Fla. 4th DCA 1972); Lawyers Title Insurance Corp. v. Little River Bank & Trust Co., 228 So.2d 412 (Fla. 3d DCA 1969); 6 Wright & Miller, Federal Practice and Procedure § 1417 (1971). This interpretation of the rule is grounded on theories of either res judicata or of estoppel. Wright & Miller, supra. The question here is whether the same principle applies when the first suit remains pending.

The point has been reached in Florida only by way of dictum. In holding that a second action could not be brought on a claim which should have been asserted by the defendant as a compulsory counterclaim in an earlier suit in which a default judgment for the plaintiff had been entered, the court in Pesce v. Linaido, 123 So.2d 747, 749 (Fla. 3d DCA 1960), observed:

It has been generally held under Federal Rule 13(a) or similar state rules or statutes that a failure to so assert a compulsory counterclaim precludes assertion thereof in a subsequent action. Annotation 22 A.L.R.2d 621. This penalty has been applied for failure to assert a compulsory counterclaim where the first action has resulted in a consent or default judgment not tried upon its merits, but the action must necessarily have proceeded to a judgment, (emphasis supplied)

Cf. State ex rel. Rosenfeld v. Boyer, 145 So.2d 547 (Fla. 1st DCA 1962).

Rule 1.170(a) was adopted from Fed.R. Civ.P. 13. In construing Rule 13 with respect to a prior pending action, the federal courts have consistently adopted the position suggested by the preceding quotation from Pesce. ACF Industries, Inc. v. Hecht, 284 F.Supp. 572 (D.Kan.1967); Local Union 499, IBEW v. Iowa Power and Light Co., 224 F.Supp. 731 (S.D.Iowa 1964); Bellmore Sales Corp. v. Winfield Drug Stores, Inc., 187 F.Supp. 161 (S.D.N.Y.1960). Thus, in Bellmore Sales Corp., supra, at 162, the court said:

This is a motion ... to dismiss the complaint ... on the grounds that it recites a claim which should be properly raised as a compulsory counterclaim in a prior pending action under Rule 13(a) of the Federal Rules of Civil Procedure.

Note 7 of the Advisory Committee on the Rules states:

‘If the action proceeds to judgment without the interposition of a counterclaim as required by subdivision (a) of this rule, the counterclaim is barred.’ 28 U.S.C. following Rule 13.
The prior action is still pending. It is only after that action proceeds to judgment that any compulsory counterclaim, arising out of the transaction or occurrence that is the subject matter of the prior suit, will be barred.

Applying this principle to the case at hand, we find that Cheezem’s suit against Maddox should not have been dismissed so long as Maddox’s earlier suit against Cheez-em was still pending. We do not pass on any other action the trial judge might wish to take, except to note that abatement would not be authorized under Florida law. Horter v. Commercial Bank & Trust Co., 99 Fla. 678, 126 So. 909 (1930).

We recognize that our holding could precipitate a race to judgment, but, since both cases are assigned to the same judge, he should be in a position to control any untoward activities. See 6 Wright & Miller, Federal Practice and Procedure § 1418 (1971).

REVERSED.

BOARDMAN and RYDER, JJ., concur.


author: MELVIN, Judge.

text:
    The OKALOOSA ISLAND LEASEHOLDER’S ASSOCIATION, Appellant, v. Hayward T. HAYES et al., Appellees.
    No. HH-468.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1978.

      D. Michael Chesser, of Selby, Chesser, Wingard & Bar, Fort Walton Beach, for appellant.
    John R. Dowd, Fort Walton Beach, for appellees.
   MELVIN, Judge.

Appellant-plaintiff, hereinafter referred to as the Association, brings its appeal from a final judgment wherein it was ordered and adjudged that protective covenants and restrictions adopted by the Oka-loosa Island Authority, as the duly authorized agent of Okaloosa County, Florida, were rendered vulnerable to amendment or revision by the Board of County Commissioners of Okaloosa County, pursuant to the provisions of Chapter 75-456, Laws of Florida. This statute abolished the Okaloosa Island Authority and transferred all of its assets and responsibilities to the’Board of County Commissioners of Okaloosa County.

Section 4(1) of Chapter 75-456 provides: “All valid, existing restrictive covenants, easements, and zoning, previously established by the Authority shall remain in full force and effect unless and until they are amended by the County Commissioners in the manner provided by law. All land on the Island previously subject to the jurisdiction of the Authority shall be subject to regulation, zoning and other authority of Okaloosa County, in the same way as any other land in Okaloosa County outside municipalities, and in addition shall be subject to the powers of the County Commissioners granted by this act.”

The Association brought its petition seeking a determination of the rights of the individual leaseholder members as to the authority of the Board of County Commissioners to bring about modification, alterations or to anywise amend the protective covenants and restrictions.

Part G, paragraph 8 of the covenants and restrictions document provides:

“The Authority expressly reserves the right to classify and re-classify from time to time areas for zoning purposes and to prescribe, amend or revoke regulations and restrictions applicable to such áreas and buildings and structures thereon and the use thereof, but no classification, regulations or restrictions shall apply to any portion of the Island then under lease without the consent of the lessee thereof.
******
“The Authority, notwithstanding the terms and provisions contained in this instrument, hereby expressly reserves the right, in its absolute discretion, at any time to annul, waive, change or modify any of the covenants and restrictions herein contained as to any lot, parcel or part of said Island not then under lease and, with the written consent of the majority in number of the lessees of the lots in any area designated by the Authority, as to the lots or parcels in such designated area.”
The trial court ruled:
“1. The Protective Covenants and Restrictions, adopted by the Okaloosa Island Authority and in effect on the date that Chapter 75-456, Laws of Florida, became effective as a Law of the State of Florida, is hereby determined to be the zoning ordinance regulating and restricting the weight, size, type of construction, location, and use of buildings and other structures on that portion of Santa Rosa Island under the jurisdiction of the Board of County Commissioners of Okaloosa County, Florida.
“2. The authority of the said Board to amend, modify, alter, repeal or otherwise change said zoning ordinance, or any provision thereof, shall be in the same manner as any other zoning ordinance adopted by the said Board and in the same manner as provided therein, in accordance with the laws of the State of Florida.
“3. So much of the said Protective Covenants and Restrictions as formerly required consent of a portion of the lessees of said island prior to action of said Authority becoming effective thereto, shall no longer be in effect, so far as the Board of County Commissioners are concerned, inasmuch as such requirement would be tantamount to an unlawful delegation of authority. It "must be assumed that the Legislature of the State of Florida, by enacting Chapter 75-456, did not intend to make such an unlawful delegation and, therefore, impliedly revoked such prior provision.”

Where a duly authorized agency of the Government in negotiations with a citizen for the leasing of property lawfully enters into a covenant or restriction and provides that such covenant or restriction may be modified only in a certain manner, the Government is bound to honor its contract.

In dealing with its citizenry, the Government is required to adhere to the same strict rule of rectitude of conduct and the turning of the same square corner as the Government requires of its citizens. See Daniell v. Sherrill, 48 So.2d 736 at 739 (Fla.1950). Just as one by deep deliberation may not add “one cubit unto his stature”, Matt. 6:27 (King James version), even so, the Government through the convenient process of legislative enactment may not render ineffective by “one jot or one tittle”, Matt. 5:19 (King James version), its solemn covenant with its citizenry.

The provision in the protective covenant whereby the consent of a portion of the leaseholders in a designated area is required before a change could be made does not constitute an unlawful delegation of authority. See State v. City of Tallahassee, 130 Fla. 418, 177 So. 719 at 721 (1937).

We presume it to have been within the knowledge of the legislature in the enactment of Chapter 75-456 that valid provisions of a valid contract executed by an agency of the Government cannot be modified or erased by the authority of such legislation.

In summary, as to such restrictive covenants, we hold that Chapter 75 — 456 did not place in the Board of County Commissioners any greater authority than that previously held by the Island Authority of Oka-loosa County.

The final judgment appealed from is reversed with directions to enter a final judgment in accord with the views that are herein expressed.

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


author: MILLS, Judge.

text:
    Rufus ALFORD, Administrator of the Estate of Brenda Ann Alford, Deceased, Appellant, v. Glenn O. SUMMERLIN, Appellee.
    No. DD-262.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1978.

      Anderson E. Hatfield, Gainesville, for appellant.
    L. William Graham and Joe C. Willeox, of Dell, Graham, Willeox, Barber, Rappenecker, Ryals & Henderson, Gainesville, for ap-pellee.
   MILLS, Judge.

Mr. Alford filed a complaint against Dr. Summerlin charging the doctor with medical malpractice resulting in the death of his minor daughter. Dr. Summerlin moved to dismiss the complaint on the ground that it was barred by the two-year statute of limitations. The trial court granted the motion to dismiss on authority of Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). Mr. Alford appeals.

Mr. Alford contends the trial court erred in granting the motion to dismiss because he alleged in his complaint that the doctor fraudulently concealed the negligent treatment of his daughter and then fraudulently concealed the cause of death from him, thus, tolling the statute of limitations.

The doctor contends that the child’s death put her father on notice of any injury which may have resulted from his alleged medical malpractice so as to require Mr. Alford to make reasonable inquiry to discover any cause of action for his daughter’s death and to commence suit on any action within two years of the date of his daughter’s death.

The allegations of the complaint necessary for consideration of the issues raised by this case are: upon initial hospitalization, the child’s condition was diagnosed as acute appendicitis or mesenteric adenitis. The doctor negligently failed to surgically open the child to exclude his initial diagnosis of acute appendicitis. She was discharged after one day in the hospital, although vomiting and complaining of stomach pain. She was readmitted nine days later. The doctor operated on the child but she died nine days later. Immediately after the operation the father inquired of the doctor if he had found a ruptured appendix. The doctor responded that the appendix had not ruptured. The doctor knew that the child’s appendix had ruptured and so stated in his operative report. However, the doctor put statements in the hospital records which were inaccurate or unsupported in order to confuse the records and the cause of the child’s death. Upon inquiry by the father after the child’s death, the doctor told him he did not know why she died, when he knew or should have known her death was caused by complications resulting from the untreated ruptured appendix.

Mr. Alford’s daughter died on 27 September 1972. Suit for her wrongful death was commenced on 30 December 1974. Unless tolled by acts of fraudulent concealment by the doctor, the action is barred by the two-year statute of limitations provided in Section 95.11(4)(b), Florida Statutes (1975).

Section 95.11(4)(b) provides:

“An action for medical malpractice shall be commenced within two years from the time the incident giving rise to the action occurred or within two years from the time the accident is discovered, or should have been discovered with the exercise of due diligence: however, in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued.”

The statute of limitations is tolled when it can be shown that fraud has been perpetrated upon an injured party sufficient to place him in ignorance of his right to a cause of action or to prevent him from discovering the injury. Buck v. Mouradian, 100 So.2d 70 (Fla.3d DCA 1958). The fraudulent concealment of facts showing negligence will toll the statute of limitations until the fraudulent concealment can be discovered through the exercise of reasonable diligence. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). To hold otherwise, would be a harsh rule and prevent relief to an injured party who was without notice during the statutory period of any negligent acts that might have caused injury. City of Miami v. Brooks, 70 So.2d 306 (Fla. 1954).

We must take the allegations of the complaint as true. The only facts we have before us are those alleged in the complaint. These facts show that the doctor fraudulently concealed his negligent treatment of the minor child and fraudulently concealed the cause of her death. Based on the allegations of the complaint, there were no facts which would have eaused Mr. Alford to believe that the doctor negligently treated his daughter and that the negligent treatment caused the death of his daughter until shortly before he filed this action.

Dr. Summerlin argues that the death of the child put Mr. Alford on notice of any injury which may have resulted from malpractice in her treatment so as to require him to make reasonable inquiry to discover any cause of action for her death and to commence suit on the action within two years from date of death.

Not so. The only facts we have are those alleged in the complaint which we must consider as true. These allegations clearly show fraudulent concealment of negligent treatment and cause of death which toll the running of Section 95.11(4)(b). Mr. Alford has the right and the obligation to adduce evidence to support the allegations of his • complaint. If he fails to do this at the appropriate time, the trial court may then rule on the applicability of the statute of limitations. In Nardone, the court did not rule on the applicability of the statute of limitations until extensive discovery and ev-identiary hearings had been conducted. The court had all of the evidence, pro and con, before it on this issue before it ruled.

Dr. Summerlin also urges that the statute of limitations was not tolled because the hospital records disclosing the causes of the child’s death were always available to her father. There is nothing in the record, the complaint, furnished us to support this contention.

Although Nardone differs factually and procedurally from this case, the general principles of law stated in Nardone are applicable here and we have applied them to the limited pleading situation presented by this case.

The final order appealed is reversed and we remand to the trial court for further appropriate action.

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


text:
    Robert REIDER and Fannabel S. Reider, Appellants, v. P-48, INC., a Florida Corporation, Appellee.
    No. EE-142.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1978.

      H. Charles Woerner, Jr., of Foxman & Woemer, South Daytona, for appellants.
    J. Lester Kaney, of Cobb, Cole, McCoy, Bell, Bond & Kaney, Daytona Beach, for appellee.
   PER CURIAM.

Appellants, Mr. and Mrs. Reider, brought this action in the trial court seeking return of certain deposit moneys paid toward the purchase of two condominium units which were to be constructed by Appellee, P-48, Inc. and for recovery of expenses incurred by Appellants in improving the units in preparation for closing the transaction. Appellants also sought to have a vendees lien enforced against the property to secure such repayment. Appellee filed a counterclaim seeking damages incurred as a consequence of Appellants’ alleged refusal to close the sale of the units. The case was tried by the court, sitting without a jury. The court found that Appellants breached their contract to purchase the units by failing to close on the date specified by Appel-lee. The final judgment upheld the operation of the liquidated damages clause of the contract and ruled that Appellants recover nothing from Appellee. The court further ruled that in view of its holding that Appel-lee would be permitted to retain the deposit moneys under the liquidated damages clause, that Appellee should recover nothing from Appellants on its counterclaim.

We find that the evidence does not support the trial court’s finding that Appellants breached their contract by failing to close the purchase of the condominium units on the date specified by Appellee. We further find that even if Appellants had so breached said contract, Appellee was not in sufficiently “strict compliance” with its contract obligations as would entitle it to retain the deposit moneys.

In 1971 and 1972, Mr. and Mrs. Reider, Appellants, agreed to purchase two adjoining units (# 104 and # 105) in a condominium development known as the “Atlantis” being built by the seller, Appellee P-48, Inc. Appellants agreed to pay a purchase price of $39,800.00 for Unit # 105 and a purchase price of $18,200.00 for Unit # 104. Appellants paid a deposit of $7,900.00 towards the purchase price of Unit # 104. At the time of the said contracts, construction of the units had not yet commenced. The units were to be constructed in accordance with certain plans and specifications and construction was commenced in the fall of 1972. Substantial delay in the anticipated completion of the project was encountered by reason of difficulties which the Appellee had with its general contractor regarding correctness and quality of construction. In March, 1974, Appellee sent letters to the purchasers of the various units in the Atlantis, including Appellants, advising them that a certificate of occupancy on the Altantis had been obtained and that, although delays in completion had “been very frustrating to all of us” and that “even now there are items in some apartments and in the common areas to be completed”, Appellee wished to close the sale of the units immediately. In response, Appellants advised Appellee by letter dated March 20,1974, that while they did not wish to unnecessarily delay closing, there were a number of items in need of repair before they would agree to close. Subsequently, Appellee advised Appellants by letter dated May 30, 1974 that Appellee had “completed all of the repairs which it expects to make on Unit # 104-105” and stated that unless certain closing documents were executed by Appellants and checks tendered by June 4, 1974, Appellants would be considered in default and the units would be immediately listed for resale. By letter dated May 31, 1974, Appellants advised Appellee that they were prepared to close provided that certain designated construction defects were reme1 died. In the alternative, Appellants advised Appellee in that letter that they would agree to close if Appellee would agree to place $2,500.00 in an escrow account of Ap-pellee’s attorney to assure that the necessary repairs would be properly made, with provision that in the event that the repairs listed were not made within 30 days of closing, Appellants would be able to direct that the escrow funds be disbursed for the necessary repairs. Having received no response to their May 31, 1974 letter, Appellants again wrote to-Appellee on June 24, 1974, reiterating Appellants’ desire to close on the conditions set forth in the previous letter. Again, Appellee failed to respond to Appellants’ letter. Finally, on July 26, 1974, Appellants wrote to Appellee and demanded return of the deposit money. Ap-pellee failed to do so and Appellants instituted this action.

The trial judge found in his Findings of Fact that the subject units were ready for closing on May 1, 1974 and that Appellants defaulted in refusing to close at that time. Such finding is not supported by the evidence. In fact, Appellee tacitly concedes such since Appellee’s position on appeal appears to be that the units were ready for closing on June 4, the date by which Appel-lee demanded in its May 30 letter that Appellants return the necessary closing documents and checks. Appellee contends on appeal that Appellants were in default by reason of their failing to close by June 4.

We find that, in view of the condition of the subject premises on June 4,1974, Appellants had no duty to close the purchase on that date as demanded by Appellee. Accompanying Appellants’ above referred May 31, 1974 letter to Appellee was an itemized list of defects and deficiencies in these units which remained to be remedied. Included in such “punchlist” were several substantial items which the evidence showed were still unresolved on June 4. One of the problems centered around the condition of the sliding glass doors on the oceanfront side of the units. The doors did not meet specifications, and they rattled and whistled whenever there was an ocean breeze. This was a problem throughout the Atlantis. In fact, an obviously frustrated Appellee/Developer wrote to his general contractor on December 18, 1974:

“The Directors of the Atlantis Association are complaining strenuously about the delay. Their complaints are very much in order. When the wind blows from an eastward direction the noise from the sliding glass doors is very annoying and they should not be expected to endure this noise any longer.”

It was also shown that the sliding glass doors installed at the Atlantis did not meet structural load specifications. The doors failed a structural load test administered in September, 1974 and the defects in such doors were not remedied until mid 1975. Also, air conditioning ducting into certain areas of the units as called for in the plans and specifications was deleted by Appellee as a cost cutting measure resulting in insufficient cooling. The parking stall for Unit # 104 was not constructed in accordance with the minimum space requirement of the applicable city ordinances and presented a substantial problem in accommodating a standard size automobile. A closet was so reduced in size inadvertently by the carpenters as to make it virtually unusable. The wash basin in the dressing area to the master bedroom was improperly installed. It is clear from the evidence that these as well as several other deficiencies were as yet unresolved on June 4, 1974. In addition, there were a number of defects of a substantial nature in the condominium common areas which remained unresolved on that date. Moreover, the person who was Ap-pellee’s manager at the Atlantis in June, 1974, testified that units 104 and 105 were not ready for closing in the first week of June, 1974, that she would not have accepted them, that Mr. Reider was the only one who could not move into his unit, that Mr. Reider “was having more trouble than anyone” and that she sympathized with Mr. Reider because of the problems he was having.

The trial court held that Appellants’ complaint sought to rescind the contracts and, in so doing, “placed upon themselves the much greater burden of proving equitable grounds to support rescission.” The trial court went on to cite the principle of law that “mere breach of a contract, or a partial failure of consideration, will not support an action for rescission, the requirement being that the party seeking rescission show an independent equitable ground for rescission in addition to these elements”. The learned trial judge failed to apply the correct principles of law applicable to this type of case. The contract in the case at bar was executory. Further, it is clear from the contracts between the parties that the Appellants did not agree to pay the purchase price, other than the requisite deposits, for the units until the stipulated improvements had been accomplished. The promise of the Appellants to pay the purchase price and the promise of the Appellee to construct the units in accordance with the plans and specifications were dependent covenants to be concurrently performed. The final accomplishment of the improvements as agreed between the parties was an essential part of the consideration supporting Appellants’ promise to pay the balance of the purchase price. A vendee’s refusal to pay out his money in strict performance of his own covenants when the vendor cannot or will not perform acts to be concurrently done does not constitute a default by the vendee. Sun City Holding Co. v. Schoenfeld, 97 Fla. 777, 122 So. 252, 254 (1929).

Appellee had no right to require Appellants to close the purchase of the units on June 4, particularly without satisfactory assurance that the remaining substantial deficiencies would be remedied. By ignoring Appellants’ repeated requests over a substantial period of time to put the units in a posture for closing or to make appropriate provision therefor, Appellee abandoned the contracts, thereby giving Appellants the right to demand return of the moneys which they had already paid. In Cox v. Grose, 97 Fla. 848, 122 So. 513, 515 (1929), the court stated:

“Where one of the parties to a contract unjustifiably abandons it, and refuses or fails to proceed with it, such action alone may not constitute a technical rescission of the contract. Such conduct, however, may be treated as an offer to rescind, and may and generally will justify the other party in declaring a rescission of the contract and in insisting upon a restoration of the status quo, provided such other party is not himself in inexcusable default.”
******
“Prima facie a sufficient period had elapsed to evince a purpose on the part of the defendant not to complete the contract, but to abandon it. Thus there had occurred prima facie an abandonment, which was tantamount to an offer to rescind on the part of Grose, the vendor-defendant, followed by the bringing by Cox, the vendee, of this action in general assumpsit to recover the earnest money. Such action on the part of the plaintiff constituted an election on his part to dis-affirm the contract, which he was prima facie entitled to do under the circumstances, thereby effecting a rescission.”

Under the law, Appellants had the right to affirm the contracts and sue Appellee for damages, or to disaffirm the contracts and bring an action to recover back the payment that had been made, but they were not limited to such remedies. They had the right, at their election, to seek a rescission and cancellation of the contracts and to an adjudication of a lien against the property for the amount of the purchase price already paid. John Ringling Estates v. White, 105 Fla. 581, 141 So. 884 (1932); Resnick v. Goldman, 133 So.2d 770 (Fla. 3rd DCA 1961). The trial court was correct in construing Appellants’ Complaint as one invoking the latter remedy, that is, rescission and cancellation. The Complaint sought to invoke the equitable powers of the trial court including the imposition of a vendee’s lien on the subject property. In Resnick v. Goldman, supra, the court stated:

“Equity takes cognizance of suits for rescission of executory contracts to convey, and a claim by a purchaser for return of a down payment under such a contract is properly brought in equity where to aid recovery a lien may be claimed and imposed on the property involved.”

See also O’Steen v. Thomas, 146 Fla. 73, 200 So. 230 (1941). Various kinds of expenses incurred by the purchaser may also be awarded as damages in such a suit. Sundie v. Lindsay, 166 So.2d 152 (Fla. 3rd DCA 1964); Resnick v. Goldman, supra.

Even if Appellants were properly deemed to have been in default for failure to close the purchase of the units on June 4, 1974, it was error for the trial court to find that Appellee was entitled to retain the deposit money under the liquidated damages clause of the contracts. In Picard v. Burroughs, 304 So.2d 455, 456 (Fla. 1st DCA 1974), this Court stated:

“In order to successfully invoke a forfeiture provision in a contract for the sale and purchase of real estate, the party seeking the forfeiture must (in the absence of a specific provision in the contract to the contrary) first prove strict compliance with those provisions of the contract required to be complied with by the party seeking the forfeiture, or else prove that such compliance has been either excused or prevented by the party against whom the forfeiture is sought. There must, of course, also be proof that the party against whom the forfeiture is sought has defaulted under the terms of the contract and that such default was neither excused nor caused by the party seeking to invoke the forfeiture provision. The evidence in the case sub judice clearly reveals that neither party complied with the provisions of the purchase and sell agreement.” [Emphasis Supplied]

For the reasons previously set forth in this opinion, Appellee can hardly be said to have strictly complied with his obligations under the contracts.

The Final Judgment below is reversed and this case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

■ ERVIN, Acting C. J., MELVIN, J. and NIMMONS, RALPH W., Jr., Associate Judge, concur.

      . Subsequent to the original contracts, Appellants and Appellee agreed to certain changes so as to combine the two adjoining units into one residence.

      . There was testimony at the trial that this former manager of the project had either quit or been terminated.

      . The distinction between executory and executed contracts as to the right of rescission is discussed in Musselwhite v. Oleson, 60 Fla. 342, 53 So. 944 (1910); see also Walker v. Close, 98 Fla. 1103, 125 So. 521, 528 (1929) and 7 Fla. Jur., Contracts, Section 171.

      . Covenants are always considered dependent unless the contrary intention appears. Walker v. Close, supra, fn. 3.

      . The liquidated damages clause of the subject contract provides, in pertinent part, as follows:
      “If Purchaser defaults in the performance of his obligations hereunder, then Seller may, at its election, terminate this Agreement. In such event all advance deposits paid by the Purchaser aforesaid shall be retained by or for the account of the Seller as consideration for the execution of this Agreement and in full settlement of any claims for damages, and the Seller, and any escrow holder, shall be relieved of all obligations hereunder.”


author: BOYER, Judge.

text:
    CARROLLWOOD STATE BANK, Appellant, v. Gerald A. LEWIS, as Comptroller of Florida, and as head of the Department of Banking and Finance of the State of Florida, and Exchange Bank of Temple Terrace, Appellees. CARROLLWOOD STATE BANK, Petitioner, v. STATE of Florida, DEPARTMENT OF BANKING AND FINANCE and Gerald A. Lewis, Comptroller, State of Florida and the Exchange Bank of Temple Terrace, Respondents.
    Nos. HH-33, HH-262.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1978.
    Rehearing Denied Sept. 26, 1978.

      J. Riley Davis and Wilbur E. Brewton of Taylor, Brion, Buker & Greene, Tallahassee, for appellant.
    William L. Lyman and S. Craig Kiser, Anthony J. McNicholas, III, and Hume F. Coleman of Holland & Knight, Tallahassee, for appellees.
   BOYER, Judge.

The primary issue presented by these consolidated cases is the propriety of an order of a circuit judge dismissing a complaint by Carrollwood State Bank (hereinafter Car-rollwood) against Gerald A. Lewis, as Comptroller of Florida, and as head of the Department of Banking and Finance of the State of Florida, (hereinafter Department) and The Exchange Bank of Temple Terrace (hereinafter Exchange Bank). In entering that order the learned circuit judge obviously relied upon a prior decision of this court, State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977).

We are neither unmindful of nor unsympathetic to the present plight of circuit courts in ruling upon motions to dismiss declaratory judgment actions commenced pursuant to chapter 86, Florida Statutes, involving parties or issues relating to or cognizable under the Administrative Procedure Act, chapter 120 Florida Statutes.

In the Willis case, supra, Judge Smith of this court made a valiant endeavor to explain the relationship between the Administrative Procedure Act (hereinafter APA) and chapter 86. That case clearly rings the alarm as to dangers in attempting to proceed under chapter 86 when there is an adequate remedy under the APA. Heeding that alarm the party seeking relief in School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977) sought dual refuge by filing a declaratory judgment action in the circuit court and a petition for review in this court. Although certainly wise in that case, the necessity of invoking multiple jurisdictions in multiple courts via multiple remedies in order to assure safety is an onerous burden on the litigants and courts alike and substantially increases the cost of delivery of legal services. We recognize our joint responsibility with the legislature to lighten such unnecessary burden.

While these consolidated cases do not furnish a proper vehicle for resolving all of the questions left unanswered by both Willis and Mitchell, we will nevertheless address such of those questions as the facts of these cases will permit.

In April of 1977 the Department published in the Florida Administrative Weekly a notice that a branch bank application filed by Exchange Bank was approved. That branch bank was to be located across the street from Carrollwood. Carrollwood was theretofore unaware of the application of Exchange Bank and upon learning of its approval promptly wrote a letter to the Department requesting an administrative hearing, urging that public convenience and necessity would not be served by the branch bank and that local conditions did not assure the successful operation of the existing banks in the area, much less the proposed branch bank. By order dated May 2, 1977 the Department denied the request for a hearing stating that Carrollwood did not have standing and was not a party whose substantial interests were determined by agency action. On June 13, 1977 Carroll-wood filed its complaint for declaratory and injunctive relief pursuant to chapter 86 Florida Statutes in the Circuit Court for Leon County. As above stated, the defendants in that action filed a motion to dismiss, citing our Willis opinion, which motion the trial judge granted. This appeal (case no. HH-33) was timely filed from that order of dismissal.

Carrollwood thereafter filed with the Department a petition for formal proceedings, asking that an administrative hearing be held on the branch bank application. In a letter dated August 22, 1977 the Department notified Carrollwood that because a formal order had already been issued on the matter (the above mentioned order of May 2, 1977) the Department would not again consider a petition for administrative hearing. Carrollwood requested that it receive a formal order denying its request, which was never forthcoming. Carrollwood thereupon filed in this court (case no. HH-262) a petition for review of the letter dated August 22, 1977, taking the position that that letter constituted final agency action.

The two cases were consolidated by order of this court. It is apparent that the necessity of our consideration of the first case (HH-33) depends upon the manner in which we resolve the second (HH-262).

As above stated, by order dated May 2, 1977, the Department denied the request of Carrollwood for a hearing, stating that it did not have standing and was not a party whose substantial interests were determined by agency action. That order was clearly final agency action as to Carroll-wood. It finally determined Carrollwood’s rights in the proceeding and under F.S. 120.68. Such final action was subject to judicial review by this Court for a period of 30 days. (See Rule 4.5, F.A.R. 1962; Yamaha International Corporation v. Ehrman, 318 So.2d 196 (Fla. 1 DCA 1975); and Shevin ex rel. State v. Public Service Commission, 333 So.2d 9 (Fla. 1976).) Long after its review period had expired, Carrollwood filed a petition for formal proceedings with the Department asking that an administrative hearing be held on the branch bank application. That petition could only be considered as a late filed petition for rehearing on the previous final order.

Clearly the position taken by the Department in its order of May 2, 1977 denying Carrollwood’s request for an administrative hearing on the ground that Carrollwood had no standing and was not a proper party or a person whose substantial interests were determined by the agency, was untenable. (See Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977); Jefferson National Bank of Miami Beach v. Lewis, 348 So.2d 348 (Fla. 1st DCA 1977) and Central Bank of South Daytona v. Lewis, 348 So.2d 348 (Fla. 1st DCA 1977)). However, the refusal by the Department to consider the second petition, after having already denied a hearing, though erroneously, but formal order, the time for review of which had expired, was not error. We affirm as to case no. HH-262.

The query remains however as to whether Carrollwood, having failed to seek timely review of the Department’s May 2nd order, was entitled to relief in the circuit court.

In the Willis case, supra, is found the following:

“Does the complaint of the respondent contractors demonstrate some compelling reason why the Administrative Procedure Act does not avail them in their grievance against the Department, and why the circuit court must therefore intervene? We think it does not. No lack of general authority in the Department is suggested; nor is it shown, if that is the case, that the Act has no remedy for it. No illegal conduct by the Department is shown; nor, if that is the case, that the Act cannot remedy the illegality. No departmental ignorance of the law, the facts or the public good is shown; nor, if any of that is the case, that the Act provides no remedy for it. No claim is made the Department ignores or refuses to recognize relators’ substantial interests, or refuses to afford a hearing, or otherwise refuses to recognize that rela-tors’ grievance is cognizable administratively. The respondent contractors have made no showing that remedies available under the Act are inadequate.” (344 So.2d at page 591: emphasis added)

Sub judice, on the other hand, the record reveals that the May 2,1977 order of the Department clearly refused to recognize Carrollwood’s substantial interests and refused to afford a hearing. That order was attached to and incorporated in the complaint for declaratory relief, the dismissal of which is the subject of this appeal. However, notwithstanding the recitals in the Willis opinion regarding refusal to recognize substantial interests or refusal to afford a hearing, such refusals do not, if an adequate remedy is available via review under Chapter 120 Florida Statutes, form a proper basis for declaratory or injunctive relief in Circuit Court. That remedy is, however, available when the constitutionality of a statute, rule or regulation is challenged, or when the constitutionality of the application of an otherwise valid statute, rule or regulation is at issue. The administrative process cannot resolve a constitutional attack upon a statute, rule or regulation. (State Dept. of Admin., etc. v. State Dept. of Adm., etc., 326 So.2d 187 (Fla. 1st DCA 1976)). Yet, the mere assertion of a constitutional right, such as (for example) the right of due process of law, in the absence of an assertion that deprivation results from a statute, rule or regulation, is not sufficient to invoke circuit court jurisdiction because in such instance an adequate and complete remedy lies in timely review under the Administrative Procedure Act.

Our sister court of the Third District in a well reasoned opinion authored by Judge Nathan, Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. 3rd DCA 1977), considered a somewhat similar case involving the constitutionality of a rule, and held that the circuit court properly retained jurisdiction to render a declaratory judgment. In that case the plaintiff was an employee of the Department of Transportation whose employment was terminated. He attempted to appeal his dismissal but was advised that a certain rule precluded appeal under the circumstances of his case. The circuit court held that a suit for declaratory judgment under chapter 86 was appropriate and that, inter alia, the due process clauses of the United States and the Florida Constitutions require a hearing prior to discharge where discharge is based on constitutionally or statutorily protected activities and that the plaintiff had been deprived of both due process and equal protection of the law. The appellant employer, DOT, contented that the employee’s remedy was in the District Court of Appeal pursuant to the Administrative Procedure Act and not in circuit court under chapter 86. Judge Nathan, after discussing the relevant facts and applicable statutes observed:

“ * * * In short, agency actions placed the plaintiff in a position where he was denied rights to which he was constitutionally entitled, and then foreclosed a reasonable remedy. Plaintiff’s complaint stated sound constitutional and equitable grounds for relief and thus established a basis upon which to predicate jurisdiction in the circuit court under chapter 86, unless it can be said that the Administrative Procedure Act necessarily bars this remedy. Definitively stated, the issue in this case is whether the judicially created companion doctrines of primary jurisdiction and exhaustion of administrative remedies combine to make petition for review in the district court of appeals the sole remedy available when final agency action substantially affects the constitutional rights of a party.” (350 So.2d at page 532)

Then followed an analysis of this court’s opinions in Willis and Mitchell, with the court concluding:

“ * * * Neither the Department of Administration nor its hearing officer would have had the power to declare the rule unconstitutional. State of Florida, Department of Administration, Division of Personnel v. State of Florida, Department of Administration, Division of Administrative Hearings, 326 So.2d 187 (1st DCA 1976), and cases cited therein.
“[2] Moreover, the separation of powers provision of the Florida Constitution, Article II, Section 3, stands as a permanent bar to administrative determination of fourteenth amendment problems. The Administrative Procedure Act cannot relegate matters of constitutional proportions to administrative agency resolution, nor can it impair judicial jurisdiction to determine constitutional disputes. Department of Revenue v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976). See also Department of Revenue v. Crisp, 337 So.2d 404, 406 (Fla. 2d DCA 1976).
“[3] We admonish against attempts to evade appropriate review procedures by clothing claims for coercive relief in raiment of dubious constitutional dimensions in order to bootstrap such claims into subjects for declaratory decrees. Yet because the summary acts of state agencies and officials were sorely deficient in constitutionally guaranteed safeguards, because the harm done to plaintiff was inordinate, and because nothing in the Administrative Procedure Act divests the circuit courts of jurisdiction to render declaratory judgments in the rare eases where such defects in due process exist, we hold that, under the facts of this case, jurisdiction to render a declaratory decree did lie in the circuit court under Chapter 86, and Section 120.73, Florida Statutes (1975).” (350 So.2d at pages 532, 533: emphasis added)

In Department of Revenue of Florida v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976), cited in Department of Transportation v. Morehouse, supra, Judge Smith, writing for this court, after observing that the complaining party had alleged violations of the due process clauses of the Florida and United States Constitutions, said:

“It is clear to us that the circuit court has jurisdiction to act and properly denied the motion to dismiss. * * *
“If as Builders contends the Rule is on its face unconstitutional by due process standards, there is no remedy for it in ch. 120, F.S. 1975. The Administrative Procedure Act could not and does not relegate Fourteenth Amendment questions to administrative determination, nor restrict the occasions for judicial consideration of them by reference in § 120.73 to ch. 86, F.S., nor otherwise impair the judicial function to determine constitutional disputes.” (Citations omitted: emphasis added: 330 So.2d at page 865)

To the same effect is Adams Packing Association v. Florida Department of Citrus, 352 So.2d 569 (Fla. 2d DCA 1977) wherein that court, after discussing our Willis opinion, held jurisdiction to be properly in the circuit court in a case wherein the constitutionality of a regulation of the Department of Citrus was at issue.

The Supreme Court of Florida, in Department of Revenue v. Amrep Corp., 358 So.2d 1343 (Fla. 1978), considered a case involving the validity of a tax wherein the trial judge in a proceeding commenced under Chapter 86, Florida Statutes, declared the taxing statute there under attack to be unconstitutional on equal protection grounds. The Department of Revenue had taken the position via a motion to dismiss that the court lacked jurisdiction to hear the case because the taxpayer had failed to exhaust its administrative remedies under the Administrative Procedure Act. After recognizing the constitutional jurisdiction of circuit courts “ ‘in all cases involving legality of any tax assessment or toll’ ” and reciting that by its very terms F.S. 120.73 provides that nothing in Chapter 120, Florida Statutes 1975, shall be construed to repeal any provision of the Florida Statutes which grants the right to a proceeding in the circuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of Chapter 86, Florida Statutes 1975, the court went on to quote with approval that portion of this court’s opinion in Department of Revenue of Florida v. Young American Builders hereinabove quoted, concluding: “We hold, therefore, that this action was properly cognizable before the circuit court.”

In an even more recent opinion by the Supreme Court of Florida, Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., et al., 361 So.2d 695 (Fla.1978) Case No. 53,378, Opinion filed May 25,1978, that court recited that “as a general proposition, the circuit court should refrain from entertaining declaratory suits except in the most extraordinary cases, where the party seeking to bypass usual administrative channels can demonstrate that no adequate remedy remains available under Chapter 120”. Nevertheless, though further reciting “that the mere assertion of constitutional questions should not automatically entitle a party to bypass administrative channels,” the court held that under the facts of that case where the constitutionality of a statute was one of the issues involved it was “pointless to require applicants to endure the time and expense of full administrative proceedings * * *.” Thus, without citing Department of Transportation v. Morehouse, supra, the Supreme Court appears to have reached the same conclusion as did the Third District in that case via the same reasoning; sounding however essentially the same caveat.

Sub judice, the dismissed complaint merely alleged that both the Florida and United States constitutions “provides for substantive and procedural due process of law.” Following that assertion is the statement: “However, defendant Comptroller has denied plaintiff’s request for hearing.” No statute, rule nor regulation, nor the application thereof is challenged; nor is there any allegation nor demonstration of inadequacy of administrative remedies under chapter 120.

The learned trial judge did not err in his order of dismissal. As to Case No. HH-33 we therefore also affirm.

McCORD, C. J., and MASON, ERNEST E., Associate Judge, concur.

      . In passing, we observe that it would be most helpful if state agencies would adopt rules of procedure to implement the Administrative Procedure Act. Here, the Department had given no notice of the application of The Exchange Bank of Temple Terrace for a. branch bank, and it had not established a time limit for protesting parties to make known their protests. As a result, a hearing was requested by Carrollwood after the Department had given notice of approval of the application. Much confusion could be avoided by timely adoption of agency rules.


text:
    STATE of Florida ex rel. FLORIDA STATE BOARD OF NURSING, Petitioner, v. John E. SANTORA, Jr., Circuit Judge, Respondent.
    No. JJ-94.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1978.
    Julius Finegold, Jacksonville, for petitioner.
    Robert L. Shevin, Atty. Gen., Barry L. Silber, Asst. Atty. Gen., Raul A. Cossio, Miami, for respondent.
   BOYER, Judge.

The Cuban Nurses Association in Exile, Inc., on behalf of all its members and others similarly situated, commenced an action in circuit court for injunctive and declaratory relief pursuant to chapter 86 of the Florida Statutes challenging a rule adopted by the Florida State Board of Nursing which requires applicants for licensure whose basic nursing education was received in another country or territory to, inter alia, “write the same licensing examination as is administered to graduates of an accredited nursing program in Florida.” The defendants in that suit filed a motion to dismiss which was denied by the trial judge, respondent here. Petitioner, one of the defendants in the trial court, thereupon filed a petition for writ of prohibition resulting in our issuance of a rule nisi. The respondent has filed a return and both parties have filed briefs in support of their respective positions.

Upon examining the second amended complaint filed in the trial court, a copy of which has been filed in this proceeding, together with the order of respondent denying the above mentioned motion to dismiss; and upon consideration of the arguments and authorities set forth in the briefs, we conclude that the facts of this case fall squarely within the holdings of this court as announced in State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977) and School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977).

It is a well settled principle of law that one who seeks a constitutional remedy, whether a right or an exemption, has the duty of clearly and positively presenting the issue at the pleading stage. (See Henderson v. Antonacci, 62 So.2d 5 (Fla.1952); Smith v. Ervin, 64 So.2d 166 (Fla.1953) and Jones v. City of Sarasota, 89 So.2d 346 (Fla.1956).) A reading of the complaint, as amended, filed by the plaintiffs in the trial court reveals that although they hinted at and skirted around constitutional issues, there is no clear and positive statement of deprivation by virtue of the challenged rule. (See Carrollwood State Bank v. Lewis, 362 So.2d 110, (Fla. 1st DCA 1978) Opinion filed August 22. 1978. Case No. HH-33 and HH-262.)

No useful purpose will be accomplished by reciting here that which was stated in our Willis, Mitchell, and Carrollwood opinions. Suffice to say, here, as in Willis, there has been no showing that the remedies available under the Administrative Procedure Act are inadequate, nor does it appear that the rule challenge initiated in the circuit court is of such character as to justify the intervention of that court via a declaratory judgment proceeding. (School Board of Leon County v. Mitchell, supra, Carrollwood State Bank v. Lewis, supra)

The rule nisi in prohibition heretofore issued is made absolute.

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


author: BOYER, Acting Chief Judge. SMITH, Judge,

text:
    BARILE EXCAVATING & PIPELINE CO., INC., a Florida Corporation, Appellant, v. VACUUM UNDER-DRAIN, INC., a Florida Corporation, Appellee.
    No. II-69.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1978.

      R. Michael Kennedy of Kinsey, Vincent, Pyle & Williams, Daytona Beach, for appellant.
    Joseph T. Garlovsky of Judge & Warren, Daytona Beach, for appellee.
   BOYER, Acting Chief Judge.

Appellant seeks reversal of a final order of dismissal of its second amended complaint with prejudice. The complaint consists of two counts. Both counts of the original complaint were dismissed with right to amend. By an explanatory order dated April 18, 1977 count one of the amended complaint was dismissed with prejudice and count two with further leave to amend. A motion to dismiss was directed to the second amended complaint and upon the plaintiff stating to the court that it did not wish to further amend that motion was granted with prejudice.

The case arises out of a written rental contract whereby appellee, Vacuum Under-Drain, Inc., rented to appellant certain equipment (well points, pumps, etc.) intended to be used by appellant incident to a contract which had been awarded to appellant for the installation of 6,000 feet of sanitary sewer pipe in Broward County. The first count of the second amended complaint purports to be based upon an alleged breach of implied warranty of fitness for a particular purpose. The modern view, which has been adopted by the Supreme Court of Florida, is that in the absence of an agreement to the contrary, where a lessor of personal property has reason to know the particular purpose for which it is leased by the lessee and that the lessee is relying upon the lessor’s skill or judgment to select or furnish suitable property, there is an implied warranty of fitness for such purpose. In W. E. Johnson Equipment Co. v. United Airlines, Inc., 238 So.2d 98 (Fla.1970) the late Justice Drew, speaking for the court, said:

“Whether the warranty of fitness applies to a particular transaction depends upon an evaluation of the total commercial setting of the transaction, including but not limited to consideration of the factors mentioned herein.
“The general rule can be stated as follows: In the absence of an agreement to the contrary, where the lessor has reason to know any particular purpose for which the leased chattel is required and that the lessee is relying upon the lessor’s skill or judgment to select or furnish a suitable chattel, there is an implied warranty that the chattel shall be fit for such purpose.” (238 So.2d at page 100)

However, appellant’s reliance on the above cited case is misplaced. First, it will be noted that the introductory clause to the general rule as stated by Justice Drew is “in the absence of an agreement to the contrary,”: Sub judice, count one of the second amended complaint, which incorporated the written contract between the parties, reveals “an agreement to the contrary”. Second, although count one was apparently intended to state a cause of action based on an implied warranty, the allegations set up instead an express warranty which, however, is in direct contradiction to the provisions of the written contract itself. We accordingly conclude that the learned trial judge did not err in dismissing count one.

Although count two of the second amended complaint is entitled “misrepresentation” and that word is repeated in the allegations, it is apparent from the verbiage that the plaintiff is attempting to allege a breach of an allegedly orally modified contract. Since no breach of the written contract is alleged it is necessary to determine whether or not the plaintiff (appellant here) successfully pleaded an oral modification, not barred by the parole evidence rule.

In his order of April 18, the reasoning of which was adopted by the trial judge in the order here appealed, he stated:

“That Count II attempts to allege an oral modification of written contract. Written contracts (not under seal) can be modified by subsequent oral agreement of the parties, even though the written contract purports to prohibit such modification. See Vita-Spray of Florida, Inc. v. Gumenick, 144 So.2d 533 (Fla. 3d DCA 1962); Doral Country Club, Inc. v. Curcie Brothers, Inc., 174 So.2d 749 (3d DCA 1965). This subsequent modification may even result from the conduct of the parties. Fletcher v. Laguna Vista Corporation, 275 So.2d 579 (Fla. 1st DCA 1973).”
^ ‡ ‡ * ‡
“Count II of the amended complaint is not subject to dismissal on the basis of the liquidated damage clause of the contract attached as Exhibit A. See Poinsettia Dairy Products v. Wessell Co., 166 So. 306 (Fla.1936); Stenor, Inc. v. Lester, 58 So.2d 673 (Fla.1952); and Nicholas v. Miami Burglar Alarm Co., Inc., 266 So.2d 64 (3d DCA 1972).”

We agree with those principles. The issue, therefore, is whether appellant in the second count of its second amended complaint adequately pleaded an oral modification of the written contract which is attached as an exhibit. We find that it has. Although certainly not a model pleading, the second count of the second amended complaint alleges the written contract between the parties; that subsequent to the execution of the contract appellee’s agent continued to represent the adequacy and suitability of the equipment furnished pursuant to the contract and that in the event same proved to be inadequate that different equipment would be furnished; that notwithstanding repeated assurances by appel-lee’s agent that adequate equipment would be furnished none was in fact ever furnished and that damages resulted from the breach. Further, a reading of the entire count leads to the inescapable conclusion that the plaintiff claims to have relied upon the promises, representations and assurances of appellee’s agent. The law has long been well settled that reliance is sufficient consideration.

The principles applicable to consideration of a complaint as to adequacy to state a cause of action have been repeatedly stated by this court and no useful, purpose will be accomplished by repetition here. Dawson v. Blue Cross Assn., 293 So.2d 90 (Fla. 1st DCA 1974) and Thomas v. Rollins, 298 So.2d 186 (Fla. 1st DCA 1974).

We conclude, therefore, that the second count of the second amended complaint adequately states a cause of action, not for misrepresentation, but instead for breach of an oral modification to a written contract and that the learned trial judge erred in dismissing same.

We do not find it necessary to address the other issues raised by the parties in their briefs.

Affirmed in part and reversed in part and remanded for further proceedings consistent herewith.

BOOTH, J., concurs.

SMITH, J., concurs in part and dissents in part.

SMITH, Judge,

concurring in part and dissenting in part:

I agree that the trial court correctly dismissed count 1 of appellant’s complaint, which attempts to allege an express oral warranty which is negated by the written contract. I think the trial court was also correct in dismissing count 2, which purports to be a claim for “misrepresentation.” I agree with the majority that the trial court should have sustained that count on any theory well pleaded, notwithstanding appellant’s erroneous characterization of its cause of action. However, I do not believe that appellant’s count 2 can be transformed into a simple claim that appellant orally agreed to rent, and appellee orally agreed to supply for an agreed rental, a water pump of a certain capacity. Such an agreement is not well pleaded. Nor is it satisfactorily pleaded that appellee’s failure to perform caused damages by delay for the period, not stated, in which appellant was prevented from obtaining the equipment elsewhere. Finally, the ad damnum clause is too broad and too saturated with erroneous notions of misrepresentation, in my opinion, to justify judicial surgery on the pleading. That clause is:

As a direct and proximate result of Defendant’s misrepresentations, Plaintiff has sustained damages for delay in completing its previously existing contractual obligations, together with expenses incurred as a result of the required extra man-hours and equipment attempting to cure inadequacies and problems caused by Defendant’s misrepresentations. In addition thereto, Plaintiff has sustained damages in renting new equipment to replace Defendant’s and sustained lost profits for its equipment for that period of delay occasioned by Defendant’s misrepresentations.

I would affirm the trial court’s dismissal on count 2.