author: ADKINS, Chief Justice. ENGLAND, Justice SUNDBERG, Judge

text:
    BLACKHAWK HEATING & PLUMBING CO., INC., an Illinois Corporation and Andrew Machatta, Petitioners, v. DATA LEASE FINANCIAL CORP., a Florida Corporation, Respondents.
    No. 45003.
    Supreme Court of Florida.
    July 17, 1975.
    Rehearing Denied Dec. 8, 1975.

      Jos. D. Farish, Jr. and F. Kendall Slink-man of Farish & Farish, and Moyle, Gentry, Jones & Flanigan, West Palm Beach, for petitioners.
    Leigh E. Dunston, Robert T. Scott and Marshall M. Criser of Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for respondents.
   ADKINS, Chief Justice.

Petitioners Blackhawk and Machatta request that this Court enter an order requiring the trial court to comply with our opinion and mandate rendered in Blackhawk Heating & Plumbing Co., Inc. et al. v. Data Lease Financial Corp., Fla.1974, and reported in 302 So.2d 404.

This case involved an agreement relating to the purchase of 870,000 shares of the common stock of Miami National Bank for a purchase price of $10,440,000. Upon rendition of our decision we remanded same to the District Court of Appeal with instructions to further remand same to the trial court for the purpose of determining the rights of the parties under the contract. We also reinstated the temporary injunction which had been entered by the trial court. The temporary injunction contained the following:

“At this stage of the case it is not certain that plaintiff had a valid option contract, or that it properly exercised it. On the other hand, plaintiff may well have a valid option, and its contentions as to the optionee’s performance upon exercise of the option may be valid. The purpose of a temporary injunction being to maintain the status quo, North Dade Water Co. v. Adken Land Co., [Fla.App.] 114 So.2d 347, it would seem appropriate here because there is a myriad of beneficial aspects to the ownership of this stock which could be lost to plaintiff or compromised should the stock be disposed of or otherwise affected., during the pendency of this litigation.”

Even at that stage of the proceeding the Court recognized the advantages flowing from ownership of the stock, as outweighing the advantages of a cash payment.

The agreement of the parties provides:

“6. (a) In the event that either party shall at any time be in danger of defaulting in any payments due in connection with the purchase of MNB Stock, such party shall immediately give the other party timely notice of such fact and shall afford the other party an opportunity to remedy such default. Should the other party remedy such default then the party taking such remedial action shall be entitled to an increase in its equity in MNB Stock equivalent to the new proportion that payments made by it for such stock bear to all payments properly made hereunder.
“(b) Any cash flow benefit, including any tax benefits, derived by Data as a consequence of its holding, hypothecation, assignment, pledge, etc. of MNB Stock shall inure proportionately to Blackhawk in the calculation of any payments due between the parties.” (Emphasis supplied.)

When the mandate was received by the trial court, such court should have carried out and placed into effect the order and judgment of this Court. Rinker Materials Corporation v. Holloway Materials Corporation, 175 So.2d 564 (Fla.App.2d, 1965).

A trial court is without authority to alter or evade the mandate of an appellate court absent permission to do so. Cone v. Cone, 68 So.2d 886 (Fla.1953). If the trial court fails or refuses to comply with the appellate court’s mandate, the latter may, generally speaking, take any steps or issue any appropriate writ necessary to give effect to its judgment. State ex rel. Dowling Co. v. Parks, 99 Fla. 1264, 128 So. 837 (1930).

It now appears that more than six months have elapsed and the trial court has not yet determined the rights of the parties under the contract to purchase the bank stock. Instead, on May 20, 1975, the trial court entertained a motion for authorization to execute and perform an agreement by Data Lease to sell the stock and to modify the temporary injunction reinstated by this Court.

On June 5, 1975, the trial court dissolved the temporary injunction which order, says petitioner, was in violation of our mandate. We agree.

The trial court should have related the findings of the special master to the established Florida law in the construction of contracts and determined the amount, if any, required for the exercise of the option agreement. The order of the trial court dissolving the temporary injunction and authorizing the sale of the stock violated the mandate of this Court and is quashed.

Data Lease has also filed a motion seeking authorization to execute and perform the agreement to sell the stock and to modify the temporary injunction, or, in the alternative, to obtain the leave or consent of this Court to such modification and authorization. The record before this Court fails to show that mere substitution of cash would truly maintain the petitioners in the status quo posture mandated by this court pending outcome of the litigation, or that status quo should be altered.

In order to modify the mandate (which, in effect, would modify the prior decision), the party seeking permission must show some new relevant matter that would probably produce a different result had it been considered by the court. Upon such showing, this court may then amend its mandate or direct the lower court to make a factual determination on the question of whether such an amendment should be made. After permission from this Court, the trial court could modify or amend any judgment mandated by this Court. For a general discussion of these questions, see 5B C.J.S. Appeal and Error §§ 1994, 2002, 2003.

It has not been shown that Blackhawk caused any delay in the enforcement of the option agreement during the proceedings subsequent to our mandate, so it cannot be held responsible for the interest obligations accumulated by Data Lease. It has not been shown that the Bank has been jeopardized in any way.

This entire litigation involves the right of Blackhawk to purchase bank stock and the purchase price to be paid for the stock. It should not be deprived of this contractual right simply because a sale of the stock would be to the advantage of Data Lease.

The motion of Data Lease for authorization to execute and perform the stock sale agreement and modify the temporary injunction or, in the alternative, to obtain leave or consent of this Court to such modification or authorization is denied.

The trial court shall apply the established Florida law in the construction of contracts and determine the amount, if any, required for the exercise of the option and to preserve the assets in question, i.e., the shares of the common stock of Miami National Bank. This was the mandate of our decision in this case.

It is so ordered.

ROBERTS, BOYD and 'SUNDBERG, JJ-, concur.

ENGLAND, J., dissents with opinion.

ENGLAND, Justice

(dissenting).

I respectfully dissent. I find nothing in the record on review to justify our acting to prevent a stock sale by Data Lease.

I have no quarrel with that portion of the majority’s decision which directs the appointment of a master for a determination of the rights of the parties under the option contract. Our first opinion in this case directed that result, and the record before us indicates that Blackhawk attempted to obtain that determination by appropriate request to the trial court, without tangible results. Blackhawk has every right to complain of the delay that has occurred since the entry of our clear mandate on that point. I cannot agree, however, with the majority’s determination that the trial court erred in lifting the temporary injunction to allow a sale of the stock of Miami National Bank.

The threshold question before us, in my view, is whether the trial court or this Court has jurisdiction to modify or lift the temporary injunction. The majority holds that we do, but I hold the opposite view. A review of the chronology of the injunction explains why.

The trial court originally entered a temporary injunction on December 28, 1971, which it dissolved on February 18, 1973. At Blackhawk’s request, that injunction was reinstated by an order of this Court, without hearing, on September 20, 1974. On October 24, 1974, we filed an opinion and entered our mandate disposing of the case presented to this Court on the merits. The injunction was dissolved by the trial court, after hearing, on June S, 1975, in the order which Blackhawk now brings to us for review.

The crux of this case relates to our action reinstating the injunction, based on Blackhawk’s request that we “enter a writ reinstating the temporary injunction previously entered in this cause on December 28, 1971.” It is significant, indeed controlling, that we were not asked to enter an injunction from this Court, but rather to revitalize the trial court’s temporary injunction. The legal effect of that action, coupled with our subsequent remand of the case for further fact-finding and action by the trial court, both divested this Court of jurisdiction and revested the trial court with jurisdiction. Following those acts here, the continuation, modification or termination of the status quo, through the in-junctive process or otherwise, was a matter exclusively within the province of the trial court.

I perceive a significant legal distinction between the original issuance of an injunction by an appellate court, as in Rinker Materials Corp. v. Holloway Materials Corp., and appellate approval of a lower court’s original injunction, as in Mayo v. Florida Grapefruit Growers’ Prot. Ass’n. In the former situation, the lower court is without power to modify the appellate court’s injunction. In this case, however, the mandate merely directs the trial court to determine the rights of the parties under the contract. This directive was the result of the Court’s determinations (1) that there was conflict jurisdiction sufficient to warrant our review, (2) that the option contract was not fatally vague, and (3) that the exercise of that contract was valid notwithstanding the absence of dollar consideration. These conclusions fall short of a determination, even implicit, that Blackhawk would be irreparably harmed by any sale of the stock under any set of circumstances. That matter simply was not before the Court. This case, then, parallels Mayo, where the trial court’s temporary injunction was held subject to future modification or dissolution should equitable principles so require, notwithstanding its approval by the appellate court.

It follows that the trial court acted within the scope of its authority in finding, on the basis of a hearing and briefs, that the injunction could be dissolved to accommodate a sale of Data Lease’s stock. We lack a factual, legal or jurisdictional basis to substitute our judgment for that of the trial judge on that subject.

Beyond the threshold jurisdictional question, there is another reason that the injunction should not now be issued by this Court. If, in contravention of my view, we do have the power to entertain Black-hawk’s request, we should deny the request in any event. The most that would be appropriate in the exercise of our power to supervise our mandate would be a determination that petitioner had made a prima facie showing of changed circumstance or need, sufficient to warrant a factual review of the status quo. Since we inherently lack any fact-gathering mechanism to determine whether the status quo should be preserved, we would after that showing ask the trial court to decide whether the injunction should be modified.

I am satisfied that Data Lease made such a prima facie showing in this case, having requested approval of either a new financing arrangement with First National City Bank or a sale of the stock. That showing entitled Data Lease to an eviden-tiary hearing on the continuation of the injunction, which is precisely what occurred before the present petition was filed here. Thus, the trial court has done already that which we would have directed it to do if in fact we had retained full and exclusive jurisdiction to affect the outstanding injunction. Blackhawk has had its day in the proper court as to “irreparable harm”, the basis for preserving the status quo, and it has lost.

I would dismiss the Petition to Require Compliance with Mandate and allow the trial court’s directive to stand.

ON REHEARING

On consideration of the Petition for Rehearing filed by Respondent, Data Lease Financial Corp., and Response thereto,

IT IS ORDERED that said petition is denied.

ADKINS, C. J., and ROBERTS, BOYD and HATCHETT, JJ., concur.

SUNDBERG, J., dissents with opinion.

OVERTON and ENGLAND, JJ., dissent and concur with SUNDBERG, J.

SUNDBERG, Judge

(on rehearing).

I have voted to grant rehearing in this cause. Since I was among the majority in the opinion filed July 17, 1975, I feel compelled to state the reason for my change in view upon the petition for rehearing.

I was persuaded at the time of the original opinion that the trial court was without power, due to our mandate, to change the status quo dictated by the temporary injunction reinstated by this Court on September 20, 1974. However, careful review of the record of the proceedings held herein has convinced me that (i) our previous mandate would not inhibit the trial court in entering its order complained of and (ii) the temporary injunction of the trial court reinstated by this Court was pendente lite.

The latter proposition appears clear from the posture of the case at the time and the manner in which this Court reinstated the trial court’s injunction, without hearing. Mr. Justice England’s dissent on this point is persuasive.

The matter of the true import of the Court’s original mandate was made clear by paragraph 2. of respondent’s petition for rehearing, wherein it was pointed out that by paragraph 7. of the Option Agreement, “subsequent to the exercise of Black-hawk’s option”, Data was free to dispose of the shares provided the interests of Blackhawk were protected in any such transaction. This Court mandated a remand to the trial court “for the purpose of determining the rights of the parties under the contract”. (Emphasis supplied.) After a full adversary hearing the trial court determined a right of Data under the contract, i. e., the right to dispose of the shares. It is apparent that the trial court— the forum best able to make such determinations — after full consideration of the issues framed an order which permitted the exercise by Data of its rights under paragraph 7. of the Agreement and at the same time devised a method for protection of Blackhawk’s minority stockholder rights. The action of the trial court does not interfere with determination of the ultimate issue in the case — the purchase price to be paid by Blackhawk for the shares as to which it has exercised its option to purchase.

OVERTON and ENGLAND, JJ., concur.

      . 302 So.2d 404, entered on October 24, 1974.

      . Rehearing was denied on November 22, 1974.

      . Prayer for relief in Petition For Writ Reinstating Temporary Injunction, filed on June 29, 1974.

      . What constitutes the “status quo”, and who may be prejudiced by its continuance, are questions which have never properly been before this Court. There has been no evi-dentiary hearing before us to show that Black-hawk would be irreparably harmed by the sale of stock, or to disprove an irreparable consequence to Data Lease if the injunction is preserved.

      . 175 So.2d 564 (2d DCA Fla.), cert, denied, 180 So.2d 657 (Fla.1965).

      . 112 Fla. 117, 175, 151 So. 25, 44 (1933) (on rehearing).

      . In Rinker, moreover, the appellate injunction expressly stated in its mandate that the particular activity should be enjoined. Rinker Materials Corp. v. Holloway Materials Corp., 167 So.2d 875, 882 (2d DCA Fla.1964), cert. quashed, 173 So.2d 145 (Fla.1965).

      . To read our mandate as directing a continuance of the injunction or a maintenance of the status quo requires an inference from its directive to determine the rights of the parties, even if read in conjunction with the separate order reinstating the injunction. I would anticipate significant appellate mischief from a precedent to the effect that mandates from this Court carry “implied” directives which are only amendable by subsequent direct action of this Court.

      .While this Court undoubtedly has initial injunctive powers, they exist in the limited context of an aid to our constitutional jurisdiction under Article V, § 3(b) (4) of the Florida Constitution (1973). These powers typically arise where the lower court refuses to act in the first instance, as in Anderson v. Tower Amusement Go., 118 Fla. 437, 159 So. 782 (1935), or where we attempt to preserve the status quo until the end of our appellate review. See State ex rel. Deeb v. Fabisinski, 111 Fla. 454, 152 So. 207, 156 So. 261 (1933). The former clearly was not the" basis of our order reinstating the trial court’s injunction. The latter may arguably be the basis for our reinstatement order of September 20, but if so the order would have abated automatically when the Court later established the law of the case and remanded for further action below.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    Helen Ruth HUGHES, Petitioner, v. DENNY’S RESTAURANT et al., Respondents.
    No. 46638.
    Supreme Court of Florida.
    Jan. 21, 1976.
    Rehearing Denied April 13, 1976.

      Paul R. Stern of Stern & Bernardini, Daytona Beach, for petitioner.
    E. J. Gierach of Gierach & Ewald, Orlando, for respondents.
   BOYD, Justice.

This cause is before us on petition for writ of certiorari to the Florida Industrial Relations Commission. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

The claimant, petitioner herein, seeks review of an Order of the Industrial Relations Commission dated December 10, 1974, which reversed an earlier Order of the Judge of Industrial Claims holding that petitioner had a 75% permanent partial disability. The facts of the case are as follows.

Petitioner originally sustained an industrial slip-and-fall accident on May 30, 1970; subsequently, an injury was discovered with damage between the C-5 and C-6 interspaces of the spine, as well as some problems in the low back area which do not concern us sub judice. The case was pending before the original Judge of Industrial Claims for a lengthy period of time, during which the principal treating physician, through new diagnostic techniques, identified a condition located at C-4 and C-5 of which he had not been previously aware. This is an entirely different condition from the condition at C-5 and C-6 which had been identified and treated previously. The doctor retracted his former opinions as to cause and origin, as well as his former opinions as to the believability of the patient. That original Judge of Industrial Claims then ruled the claim to be compensable, a ruling reversed by the Industrial Relations Commission on the ground that Rule 3 (presently Rule 8) had been violated in that testimony had been taken more than 90 days after the first hearing. The Respondent-Commission directed a new Judge of Industrial Claims to enter an order based solely upon testimony taken in the first 90 days. The new Judge complied in what is referred to by the Respondent-Commission as “the first order,” wherein petitioner’s claim was dismissed because the claimant’s cervical pathology at C-5-6 could not be causally related to the industrial accident. Thereafter, the claimant filed her petition to modify in accordance with the principles outlined in Sauder v. Coast Cities Coaches, Inc. Once again the principal treating physician appeared and testified (1) that there are two different problems in the cervical area of petitioner’s spine, one of which he had previously identified at C-5 and C-6; (2) that on the basis of a newly discovered diagnostic technique he was able to identify a problem at C-4 and C-5 which he did not originally believe existed; and (3) that, now, he could establish a causal relationship with the condition at C-4 and C-5 and the industrial accident on the basis of the history related by claimant, which history at that point became logical in light of the newly discovered diagnostic technique. The new Judge of Industrial Claims then entered what the Respondent-Commission refers to as “the second order,” which was an order on a petition to modify and which held the claim to be compensable. In this “second order” the Judge of Industrial Claims specifically found as follows:

“1. The mandate of the Industrial Relations Commission required that the only evidence to be considered at the time of entry of the order of January 30, 1974, was the evidence received at the hearing of September 17, 1971, or within a ninety (90) day period thereafter. No consideration whatsoever was given to any evidence received or heard and appearing in the record subsequent to the ninety (90) day period commencing September 17, 1971.
“2. In his deposition of September 7, 1971, Dr. Jules S. Neviaser testified that he noted degenerative changes with auto-fusion or sound change of fusion between the intervertebral bodies of C-S and C-6. He repeated several times that he was concerned about degenerative disease at the level of C-5 and C-6, that is the disc space between those two levels. He also indicated treatment for her for the low back including major surgery. He thought the patient needed the care of a psychiatrist and referred her to one. He stated there was no way he could relate the injuries he found, that is the injuries between C-5 and C-6 and the injuries of the low back to the industrial injury. It was on this basis that the order herein sought to be modified was entered. The doctor never mentioned any injury to the disc space between C-4 and C-5.
“3. In the testimony before the undersigned Judge on Friday, May 17, 1974, with a cine-radiograph introduced into evidence, it appeared that a new ev-identiary factor was first discovered in January, 1972. That this evidentiary factor showed a serious injury requiring surgery at the level of C-4 — C-5, one level above the level for which the doctor thought he was treating the patient. That with all diligence and with the extent of medical knowledge available in the community and the extent of medical facilities available to this doctor in the community at that time Dr. Neviaser testified that he could not have determined or discovered the injury at C-4 — C-5 earlier than January, 1972 ....
“4. The undersigned finds that the claimant has been temporarily and totally disabled from the date of the accident, May 30, 1970 to the last time she was examined by Dr. Neviaser on April 17, 1974 as a result of the neck injury to C-4 — C-5 interspace.
“5. I further find that the injury to claimant’s back is a totally unrelated condition to that of the injury to the claimant’s neck which was sustained in this industrial accident and is not com-pensable. The physician is directed to refile his medical statements eliminating any treatment which was for the back.
“6. I accept as true the professional opinion of Dr. J. S. Neviaser as per his testimony before me on May 17, 1974, that the condition for which he treated this patient was an instability of the cervical spine at the level of C-4 — C-5 requiring surgery and that the injury was within reasonable medical probability caused by the claimant’s industrial accident.” (E.S.)

Based on these findings the Judge of Industrial Claims granted petitioner’s requested modification with certain exclusions.

The Respondent-Commission reversed the “second order, ” holding that the “first order,” which held that there was no causal relationship between these injuries and the industrial accident, established the law of the case and that, therefore, it was unnecessary to consider the merits of the claim. It is from this order of reversal that this petition for certiorari is brought.

Section 440.28, Florida Statutes, reads in pertinent part as follows:

. . upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact the division may ... at any time prior to two years after ... an order rejecting a claim . . . , review a compensation case . . . and . . . issue a new compensation order . . .”

We recognize that it has been held that the “mistake of fact” contemplated by this section is one made by either the deputy commissioner or by the Respondent-Commission. Nevertheless, it is our view that, where the state of the medical art advances to the point that new evidence becomes available which was not and could not have been previously known, then, in that limited situation, the Judge of Industrial Claims is justified in concluding that she had made a mistake of fact and in granting a modification where such is supported by the evidence. An analogous situation to the instant one was present in Orme v. M. R. Harrison Construction Co. In that case a claimant fell in 1956 and sustained an injury to his right knee; within a relatively short period of time he had incurred two other accidents affecting his legs and/or knees. In the original 1957 hearing the deputy commissioner found both the first and second industrial employers liable to furnish remedial surgery and hospital care as required to alleviate the disability to claimant’s right knee. Thereafter, in 1959 claimant applied for modification of the compensation order under Section 440.28, Florida Statutes, supra, the basis being a mistake in determination of fact in that claimant’s left knee was in need of surgery. The deputy modified his earlier order and held the original employer solely liable to claimant for the injury to his left knee, which injury occurred as a result of the original industrial accident. On appeal, the full commission reversed the deputy’s order, holding that there was no competent and substantial evidence to support it. This Court reversed the commission’s order and reinstated and affirmed the holding of the deputy, stating that there was ample evidence to support the deputy’s finding as to his mistake of fact (in that he was ignorant of any injury to the left knee at the initial hearing). In the instant case, the record clearly shows that, because of new medical diagnostic techniques, the injury caused by the petitioner’s industrial accident was eventually identified and treated. The testimony to this effect is as follows.

On direct examination the following was elicited:

“Q. [by Mr. Stern]: . . . Did you discover anything subsequent.—
“A. [by Dr. Neviaser]: To my testimony?
“Q. —to your deposition of 1971 ?
“A. Yes.
“Q. . . . What did you discover subsequent to that, and how was that discovery made ?
“A. . . . The patient continued with symptoms . . . and, finally, the study became available to us called a cine radiograph.
“Q. Is this something relatively new, Doctor ?
“A. Yes.
“Q. Can you tell us what a cine radi-ograph is?
“A. ■ A cine radiograph is a motion picture of the throat and the spine.
“Q. An X-ray on motion pictures ?
“A. Yes.
It can show instability present that would not be present on conventional, ordinary means.
And a patient would have normal-appearing X-rays. She would have normal-appearing myelograms.
And they can actually have normal EMG’s.
All those can be normal, yet they can have cervical instability present.
This was demonstrated on cine ra-diographs in 1972 on Mrs. Hughes.
“Q. . . . These cine radiographs showed a particular radiograph, did they not?
“A. Yes. They showed an abnormality between C-4 and S
“Q. . . . Do they also show another problem that you had previously been familiar with ?
“A. Yes.
They showed some narrowing and spurring at C-5, 6.
“A. We’re looking — having the advantage now of looking back through the so-called retrospective scope.
“Q. With 100 percent hindsight, what is the diagnosis of this lady?
“A. She has cervical instability at the C-4, 5 level.
“Q. Had you any knowledge of this when you gave your deposition in September of ’71 ?
“A. No, sir.
“Q. Do you have a professional opinion within reasonable medical probability as to whether the cervical instability which you found at C-4, 5 was causally related to the industrial accident of May 30th, 1970, which you described in the deposition that you gave in September of 71?
“A. ... I would say yes. There is no — there’s just no doubt in my mind.
“Q. No doubt in your mind about what ?
“A. That causal relationship.
“Q. You are saying that there was a causal relationship?
“A. Yes, sir.
“Q. . . . Doctor, in your opinion, was the operation that you performed reasonably necessary—
“A. Oh, absolutely.
“Q. —as a result of the industrial accident of May, 1970 ?
“A. Yes, sir.
“Q. Doctor, could you have known about the necessity of this industrial accident prior to the cine radi-ograph studies that were done in January following your original testimony ?
“A. No, sir. No way.
This is the only method I know of to produce this study ....
“Q. What did you think you were treating in the neck prior to the cine ra-diograph ?
“A. Degenerative disease at C-5, 6, and the lower level.
“Q. You weren’t even aware of the condition—
“A. No.
“Q. —at C-4, 5?
“A. I was not.
“Q. Is that the basis on which you gave your testimony on deposition on September 17th?
“A. Yes, sir.”

On cross-examination the following testimony developed:

“Q. [By Mr. Gierach]: Doctor, the method you used to discover the condition of C-4, S in Mrs. Hughes was available here in the United States, was it not, earlier ?
“A. Yes. In Chicago.
“Q. Was it available in Florida?
“A. No, sir.
“Q. [By the Judge]: When was this equipment obtained in the Daytona Beach area?
“A. It’s only at Ormond Memorial Hospital, and, to my knowledge, I became aware of the existence of this procedure — I think it was after the deposition.
“Q. [By the Judge]: But at least it was in your knowledge after the time of this deposition?
“A. Yes, ma’am.
And I — in fact, to my knowledge, this is one of the first ones that was done in the City of Daytona Beach.
“Q. [By Mr. Gierach] : I would like to have this question answered, whether or not this equipment was available in the United States prior to the time we took your deposition?
“A. Yes. It was available in the United States.”

On redirect examination the following was disclosed:

“Q. [By Mr. Stern] : . . . With one hundred percent hindsight, we now know that there are two different problems in the cervical spine; is that correct?
“A. That is correct, sir.
“Q. There’s a condition at 5, 6, which you described ... as spurring.
“A. Yes, sir.
“Q. And that you knew about from the first time you saw the patient.
“A. That’s correct.
“Q. [By the Judge] Oh, and this is the congenital anomaly ?
“A. No. It’s not. No.
. This is an unrelated finding
[which] I initially thought it was symptomatic].
“Q. [By the Judge] But, then, what actually was contributing to the symptoms was the undiscovered condition immediately above this condition, which was observed on still X-ray, and the condition above was eventually observed on motion X-ray ?
“A. Yes, ma’am.
“Q. [By the Judge] And this was, in your opinion, caused by the industrial accident?
“A. The one above it [C-4, C-5],
“Q. [By the Judge] The one above [C-4, C-5] ?
“A. Yes.
“Q. [By the Judge] And this is the condition for which you performed the operation?
“A. That is correct.
“Q. Your opinion that the condition you saw at surgery—
“A. Yes. Okay.
“Q. —was related to the industrial accident of May 30th, 1970 — did you express that opinion within reasonable medical probability?
“A. Yes.
“Q. Doctor, would you have found this condition but for the cine radi-ograph ?
“A. Not I. No.
“Q. Doctor, can you give us the date of the cine radiograph again ?
“A. January 4, 72.”

On recross examination the following colloquy occurred:

“Q. [By Mr. Gierach]: Doctor, since September 7th, 1971, when we took your deposition, the testimony that was previously given at a hearing before Judge Ottinger represents . a mistake on your part
“A. No . . . it’s not a mistake.
“Q. Did you change your mind, or just a change—
“A. No
“Q. —in the diagnosis ?
"JBy the Judge]: I would call it an amplification of knowledge.
“A. I like that expression.
“Q. An amplification of knowledge?
“A. There was no mistake made....
“Q. The condition that you found on cine radiograph was there at the time that your deposition was taken on September 7th, 1971 ?
“A. Yes. (inaudible) — know about the ways to show it.
.“Q. [By the Judge]: In effect, this is additional facts coming to the knowledge of the medical examiner?
“A. Yes. . . .”

On redirect examination the following was brought out:

“Q. Doctor, do you know of your own knowledge if this was the first cervical study done with that machine in Volusia County?
“A. Yes. To my knowledge, it is the first one.”

Clearly, the evidence adduced at the modification hearing was not merely cumulative nor did it simply controvert evidence taken at the original hearing, which would be contrary to the principles enunciated in Beaty v. M & S Maintenance Co., Hall v. Seaborad Maritime Corp., and Power v. Josehph G. Moretti, Inc. To the contrary, the doctor’s original testimony related to the injury found at C-5 and C-6, while his later testimony on petition for modification pertained to the injury found at C-4 and C-S, a completely different area of injury. Furthermore, the doctor makes dear in his testimony that his original diagnosis was not mistaken but that he now had new information about a different injury, thereby distinguishing this case from Power, supra. Obviously, there is presently evidence of an injury which was lacking before and which the Commission did not examine before because it was not then known. In our view, the petitioner seeking modification on ground of mistake of fact carried her burden of proof.

Contrary to Respondent’s position, this is not a relitigation of identical issues, nor .is it merely “cumulative evidence” seeking to abrogate the previous final finding. The order of January 31, 1974, determined that there was no causal relationship between the industrial accident and the cervical condition then known of at C-5 and C-6. Can that ruling be held to be the “law of the case,” “res judicata" and “estoppel by judgment” in regard to the issue of whether there exists a causal relationship between the industrial accident sustained by petitioner and the injury she suffers at C-4 and C-5 ? We think not. Furthermore, it is our view that the concept of modification is so inherently a part of workmen’s compensation law, unlike tort litigation, that under the circumstances sub judice we do not find the doctrines of “res judicata,” “law of the case” or “estoppel by judgment” to be applicable here.

It is well argued that the views expressed herein could result in an interminable series of litigation if taken to its ultimate extreme. Therefore, to prevent such interpretation, we expressly limit this holding to include only those injuries which may be discovered within the immediate time frame after the original testimony, which injuries could not have been discovered by use of medical technology available to the treating physician at the time of the original examination. In no event should this time period exceed the two-year limitation imposed by Section 440.28, Florida Statutes; we feel this conforms to the legislative intent.

Accordingly, the petition for writ of cer-tiorari is granted, the order of the Industrial Relations Commission is quashed, and the cause remanded with directions to reinstate the May 24, 1974, order of the Judge of the Industrial Claims awarding petitioner-claimant temporary total disability and medical expenses.

It is so ordered.

ADKINS, C. J., and ROBERTS, OVERTON and HATCHETT, JJ., concur.

ENGLAND and SUNDBERG, JJ., dissent.

      . 156 So.2d 162 (Fla.1963).

      . Steele v. A.D.H. Bldg. Contractors, Inc., 174 So.2d 16 (Fla.1965) ; Hall v. Seaboard Maritime Corp., 104 So.2d 384 (Fla.App. 1958).

      . 127 So.2d 104 (Fla.1961).

      . 124 So.2d 868 (Fla.1960).

      . Supra, Note 2.

      . 120 So.2d 443 (Fla.1960).

      . Hall, supra, Note 2.

      . 8auder, supra, Note 1.


author: PER CURIAM.

text:
    Thelmon BROWN, Petitioner, v. CLIFFORD SHOVER BUILDING, INC., et al., Respondents.
    No. 47404.
    Supreme Court of Florida.
    March 3, 1976.
    Rehearing Denied April 13, 1976.

      Paul R. Stern, of Stern, Bernardini and LaRue, Daytona Beach, for petitioner.
    Raymond A. Haas of Goseny, Haas, Cameron and Parsons, Daytona Beach, for respondents.
   PER CURIAM.

By writ of certiorari we have before us an order of the Industrial Relations Commission remanding this case to the Judge of Industrial Claims for a more complete recitation of the facts determined by her.

After noting the stipulations made by the parties, the Judge made the following findings:

“2. The claimant took the position that he was permanently and totally disabled and that his maximum medical improvement date was to be determined by the court in accordance with the report of Dr. Martin dated April 11, 1974; the carrier took the position that the claimant had sustained an 8 percent permanent partial disability as of March 12, 1974.
3. Glenn Ur, an employment counselor, employed by the Florida State Employment Service testified as to the employment opportunities available to the claimant and the claimant testified about his own employment experience.
The Court having considered the claimant’s limitations as expressed by Dr. Davison, his physical limitations as expressed 1 the two orthopaedic whose reports were received in evidence, the expert opinion of Mr. Ur, the experience of the claimant, and the court having observed the claimant in the hearing room, and considered his the [sic] apparent limitations, finds that the claimant has sustained a 60 percent loss of earning capacity and finds that the date of maximum medical improvement occurred on March 12, 1974, the date upon which Dr. G. A. Martin first assigned an anatomical rating to claimant.”

Our review of the record discloses no valid reason for the Commission’s order reversing the award of compensation and remanding the case to the Judge of Industrial Claims for a more detailed recitation of the facts. Pierce v. Piper Aircraft Corp., 279 So.2d 281 (Fla.1973). The award of compensation is supported by substantial competent evidence and its basis is sufficiently explained. This case bears no similarity to Schaefer v. St. Anthony’s Hospital, 327 So.2d 221 (Fla., Opinion filed February 11, 1976), in which the Commission had remanded to the Judge of Industrial Claims for additional findings of fact.

The petition for the writ of certiorari is granted and the order of the Commission is reversed. This case is remanded to the Commission with instructions to reinstate the order of the Judge of Industrial Claims.

ROBERTS, Acting C. J., and ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur.


text:
    R. L. OLIVE and Jeannette Olive, his wife, Appellants, v. CITY OF JACKSONVILLE, a political subdivision of the State of Florida, Appellee.
    No. Y-119.
    District Court of Appeal of Florida, First District.
    March 26, 1976.
    Thomas W. Danaher, Haimowitz & Newton, Jacksonville, for appellants.
    Harry L. Shorstein and William L. Coalson, Jacksonville, for appellee.
   PER CURIAM.

The zoning regulations of the City of Jacksonville provide for various commercial classifications. Relevant here are CG (Commercial General), CN (Commercial Neighborhood) and CPO (Commercial, Professional and Offices). Of the three classifications, CG is the least restrictive and allows the most intensive commercial uses while CPO is the most restrictive and allows the least intensive uses.

In 1948, appellants purchased Lot 19, Hyde Grove Subdivision, Plat Book 18, page 76 of the Public Records of Duval County, Florida, and constructed thereon a single-family residence where they have since resided. At that time, the entire surrounding area was devoted to single-family residences and none of the roads were paved. With the passage of time the character of the neighborhood has changed and plaintiffs’ property is now surrounded on three sides by property zoned CG. Fronting plaintiffs’ property is a Hess Oil Station. To the rear is located a dairy store, a hamburger restaurant, a drug store and a Standard Oil Gas Station. Also adjacent is a proposed shopping center and a Kentucky Fried Chicken restaurant. To the east is a single-family residence. One lot removed from plaintiffs’, property is Lane Avenue, in 1948 a two-lane dirt road but now a four-lane arterial highway leading to Interstate 10. Contingent upon rezoning, appellants have contracted to sell Lot 19 to the owner of Lot 20. For clarity, we here reproduce a portion of plaintiffs' Exhibit II;

Upon appellee denying appellants’ petition to have their property rezoned to CN, appellants filed suit. Following a lengthy trial, the learned and able trial judge entered a final judgment in which he recited, inter alia:

“Since the plaintiffs’ Lot 19 is now surrounded on three sides by property rezoned commercial general, and only on the east by property zoned residential, it is not possible to conclude that failing to rezone the plaintiffs’ Lot 19 to a commercial classification of some sort would be defensible as ‘fairly debatable’. It is not ‘fairly debatable’ but is unconstitutionally discriminatory and confiscatory.”

Having so found, the trial court enjoined appellee from enforcing against the subject property any zoning classification more restrictive than CPO.

In holding not fairly debatable the constitutional necessity of rezoning appellants’ property to a commercial classification the able trial judge was eminently correct. However, recognizing the ability of the trial judge and affording his findings and conclusions the presumption of correctness to which they are lawfully entitled, we nevertheless fail to understand the constitutional rationale for imposing upon appellants’ property a classification more restrictive (CPO) than that sought by appellants (CN) and appreciably more restrictive than that imposed upon the surrounding properties (CG). We fully recognize that “a line must be drawn somewhere” (Kugel v. City of Miami Beach, Fla.App.3rd 1968, 206 So.2d 282). However, in the absence of some physical barrier or other logical boundary, we know of no authority for drawing the line as has been done sub judice. While imposition of CPO zoning classification upon appellants’ property does not render it a “veritable island” as described in Tollius v. City of Miami, Sup.Ct.Fla.1957, 96 So.2d 122, it does render the subject property a literal peninsula.

To deny appellants the zoning classification sought (which is more restrictive and permits a less intensive use than that to which they are entitled but did not request) would constitute spot zoning in reverse (Kugel v. City of Miami Beach, supra).

Closely analogous to the facts of this case are those appearing in Stokes v. City of Jacksonville, FlaApp.1st 1973, 276 So.2d 200, wherein the appellants’ properties constituted a peninsula of residentially zoned lots surrounded by commercial classifications and usages. In that case, we said:

“These residents purchased their homes many years ago in a relatively quiet residential area. The sovereign, not the landowners, determined that it was in the public’s welfare to expand a two-lane highway into a six-lane thoroughfare continuously traversed by noisy, smoke and fume emissioning behemoths which rendered their residences almost uninhabitable. It was the sovereign, not the subject landowners, that granted to the property owners directly across Cassat Avenue the right to develop intense commercial usage of their property without regard to increased vehicular traffic. And it was the sovereign, not the subject landowners, that permitted a service station to the north, and a service station to the northwest, and a service station to the west. These landowners are so surrounded by commercial activity that they must have an empathy with General Custer in his last stand. In short, the sovereign, by its past activities, has changed the character of this immediate neighborhood, and having done so, now refuses to recognize that which it created.” (276 So.2d 204)

The law of Florida relative to zoning matters is thoroughly recited in this Court’s opinion in Davis v. Sails, Fla.App. 1st 1975, 318 So.2d 214, and no useful purpose will be accomplished by repetition here. Suffice to say, that upon application of those principles to the evidence revealed by the record in this case and the findings of the able trial judge, we are forced to the inescapable conclusion that although the trial judge was eminently correct in prohibiting enforcement against appellants’ property any classification more restrictive than commercial he should have enjoined any classification more restrictive than CN, the classification sought by appellants.

Reversed and remanded with directions for the entry of a final judgment enjoining appellee, City of Jacksonville, from enforcing against appellants’ property (here-inabove described) any zoning classification more restrictive than commercial neighborhood (CN).

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


author: MILLS, Judge.

text:
    Raymond L. YOUNG and Jacqueline Young, Appellants (Plaintiffs), v. GIBBS SANITATION SERVICE, INC., and Liberty Mutual Insurance Company, Appellees (Defendants).
    No. X-474.
    District Court of Appeal of Florida, First District.
    March 16, 1976.
    Rehearing Denied April 14, 1976.
    John W. Merting, of Jones, Liberis & Merting, Pensacola, for appellants.
    H. Edward Moore, Jr., and Robert P. Gaines of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellees.
   MILLS, Judge.

This appeal questions the correctness of a summary judgment rendered in favor of appellees.

An examination of the record on appeal conclusively establishes the absence of any genuine triable issue of a material fact and that appellees are entitled to judgment as a matter of law.

Raymond Young was injured when he drove his motorcycle into the rear of a stopped garbage truck owned and operated by appellee Gibbs Sanitation Service, Inc. Young contends there is a dispute as to whether the truck’s flashing lights were in operation and whether Gibbs’ driver negligently stopped the truck on the traveled surface, of the road when it was practical to pull the truck off.

Assuming there is a dispute as to whether the truck’s flashing lights were in operation, there is no statutory requirement that they be in operation.

The photographs taken at the scene immediately following the accident clearly show that the truck was stopped adjacent to the curb, in the parking area, with an unobstructed width of the highway opposite it left for free passage of other vehicles, and a clear view of it available from a distance of at least two hundred feet in each direction.

On a clear day, with an unobstructed view, the plaintiff ran into the truck which was properly stopped on the roadway.

Accordingly, the judgment appealed is affirmed.

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


author: SCHEB, Judge.

text:
    UNIVERSITY COMMUNITY HOSPITAL, Appellant, v. William R. MARTIN, Appellee.
    No. 75-583.
    District Court of Appeal of Florida, Second District.
    March 26, 1976.

      John R. Bush, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Richard M. Mitzel, of Marlow, Mitzel, Ortmayer & Shofi, and David A. Maney, of Gordon & Maney, Tampa, for appellee.
   SCHEB, Judge.

Appellant/defendant University Community Hospital appeals from a judgment entered on a jury verdict awarding appel-lee/plaintiff William R. Martin $350,000. The thrust of the appellant Hospital’s contention is that Martin was an irreversible paraplegic when he was admitted to the Hospital; hence, the fall he sustained as a result of the Hospital’s alleged negligence did not aggravate his then existing injuries. We affirm the judgment of the trial court as to the Hospital’s liability, but reverse and remand to the trial judge to enter an appropriate remittitur.

Plaintiff Martin, age 37, was admitted to the defendant Hospital on August 21, 1968, after having suffered a gunshot wound to his neck. He was treated by Dr. Romano, a general surgeon, and Dr. Trupp, a neurosurgeon. During the first few days of treatment, Dr. Romano formed an opinion that Martin would be a permanent paraplegic. Dr. Trupp was of the opinion that Martin’s spinal column had suffered such severe damage that “nothing we could do would help him” and that eventual spasms in his extremities would be inevitable. On August 22, however, Dr. Trupp noted in the hospital records that Martin “apparently appreciates sensation to his feet. This is an amazingly good thing.”

On August 26, while Martin was in an intensive care unit, nurses at the hospital placed him on a special bed used to allow immobilized patients to be rotated to a vertical position. The nurse who was responsible for checking out the bed failed to check on the position of an essential bolt, and as the bed was rotated Martin fell. There was conflict in the testimony as to injuries caused by the fall. Martin claimed he struck his back on a chair, while the nurse testified she caught him prior to the time he struck anything. After this incident, Martin was examined by Dr. Gomez, who noted the patient had not sustained any injury when a section of the bed had almost fallen down. Martin testified, however, that his pain intensified after the fall and that it was only after the fall that he had begun to suffer spasms. Moreover, he testified to a decrease in sensation. He was discharged from the defendant Hospital on October 17, 1968, after which he was a patient in various other hospitals. He has since undergone several operations, but he remains paralyzed.

Dr. Feegle, a pathologist, testified as an expert witness for the plaintiff Martin. It was Dr. Feegle’s opinion that the fall striking the mid portion of Martin’s back in the area through which the bullet had passed had caused some degree of neurological and spinal cord damages, which in turn caused additional injury to the wound site. And, while Dr. Feegle could not assess any particular degree of aggravation caused to the already existing damage, he did testify that Martin’s fall from the bed injured him to some additional degree. For the defendant, Dr. Trupp testified that he had seen no medical changes in Martin on August 26, or thereafter, which warranted any inference that any injury such as a fall occurring in the Hospital had worsened his condition, but rather that all of Martin’s problems were consistent with the original gunshot injury and inconsistent with any other injury.

Initially, we reject the Hospital’s argument that the plaintiff’s evidence did not warrant submission of the case to the jury. We find competent substantial evidence from which the jury found that Martin suffered additional injury resulting from the Hospital’s negligence in allowing him to fall from the bed. Martin testified he had fallen out of bed and there were notes from one of the nurses indicating that after such fall he was unable to move his toes. Even Dr. Trupp acknowledged there had been some sensation in Martin’s feet prior to the fall, but there was none there after it. This testimony, together with Dr. Feegle’s testimony that the fall had caused some degree of re-injury to the original injury, was a sufficient eviden-tiary basis for the jury to have concluded that: (a) Martin fell; (b) that such fall was a result of the Hospital’s negligence; (c) that such negligence was the proximate cause of some re-injury or aggravation of the plaintiff’s existing injury; and (d) that the plaintiff suffered some general damages as a result thereof.

On the issue of damages, the trial judge instructed the jury as follows:

“ . . . if you find that the testimony proved negligence which was a legal cause of loss, injury or damage to William Martin in and for which the University Community Hospital is responsible, you should award William Martin an amount within that the greater weight of evidence shows will fairly and adequately compensate him for such losses or injuries or damages including any such damages William Martin is reasonably certain to incur or experience in the future.
You should consider the following elements: Any bodily injury sustained by William Martin and any resulting pain and suffering, disability, disfigurement, mental anguish, and loss of capacity for the enjoyment of life experienced in the past or to be experienced in the future. There is no exact standard for figuring the compensation to be awarded, but any such award should be fair and just in light of the evidence.
Any aggravation of the existing disease or physical deformity or aggravation of any such resulting from such injury, if you find that there was such cm aggravation, you should determine if you can, what portion of William Martin’s condition resulted from this injury and allow in your verdict only for the aggravation.
However, if you cannot make a determination or if it cannot be distinguished which condition is apart from the injury, you should consider and make an allowance in your verdict for the entire condition, any earnings or working time lost in the past and the ability to earn money in the future.
. . . [F]or your determination . is whether the event was negligence in allowing Mr. Martin to fall and if so, whether such negligence was a legal cause of the loss, injury, or damages sustained by him.” (Emphasis supplied).

Thus, once the jury determined the Hospital was liable to Martin, it became their duty to attempt to determine what part of Martin’s condition resulted from the Hospital’s negligence. We think it was here that the jury erred because we believe from a study of the evidence that it was patent that the aggravation of Martin’s condition caused by such injuries sustained at the Hospital could be distinguished from the condition which resulted from his original injuries.

Despite Dr. Trupp’s testimony that on August 22, prior to the fall, Martin apparently appreciated some sensation to his feet, no medical evidence demonstrated any possibility that Martin would recover from the problems inflicted by the original gunshot wound. Dr. Romano’s testimony on this point was as follows:

“Q What was your prognosis, if any, when he left University Community Hospital ?
A Well, the patient was a paraplegic, he was paralyzed for life about the lower extremities.
Q When you observed him over the period of time from August 21, 1968 through August 25, 1968, did you form an opinion as to whether or not he would be a paraplegic for the rest of his life ?
A In my opinion he was going to be, yes, sir.
Q And does that mean confined to a wheelchair ?
A Yes, sir.
Q Doctor, I want to be very clear about this. You formed this opinion as early as the period of time from the 21st through the 25th of August, 1968, is that true?
A Yes, sir.”

Dr. Trupp’s testimony corroborated Dr. Romano’s prognosis that Martin would be a permanent paraplegic. Finally, such prognosis was never contradicted by Dr. Feegle or by any other medical testimony.

Where a plaintiff seeks to recover damages by reason of the defendant’s negligence, the plaintiff must not only prove the extent of his injuries, but also that they were proximately caused by the negligence of the defendant. Chomont v. Ward, Fla.1958, 103 So.2d 635. We recognize this requirement has been relaxed where the evidence indicates the defendant’s negligence has proximately resulted in an aggravation of a pre-existing injury and the entire consequence cannot reasonably be divided as between several independent causes, Hamblen, Inc. v. Owens, 1937, 127 Fla. 91, 172 So. 694, 696; Washewich v. Le Fave, Fla.App.4th 1971, 248 So.2d 670. See also, Standard Jury Instruction 6.2(b), which was given by the trial judge.

Here, however, it was possible for the jury to separate the damages consequent from the two injuries, since all the evidence indicated Martin would remain a paraplegic for the rest of his life regardless of the fall. Additional damages beyond those awarded for pain and suffering associated with the fall would properly be limited to the damages caused beyond that point; i. e., primarily the loss of sensation and increase in pain. Taking the evidence in the light most favorable to the plaintiff, he is entitled to full compensation for these elements of damage, but there was no showing of any additional medical bills and no further loss of earning capacity caused by the fall.

Even though the amount awarded a plaintiff in an action to recover damages for personal injuries rests largely in the descretion of the jury, Sproule v. Nelson, Fla.1955, 81 So.2d 478, nevertheless, where a verdict is so manifestly excessive as to shock the judicial conscience, or where it is apparent the jury has misconceived the merits of the case as relates to the damages recoverable, then so much of that verdict as appears excessive may be set aside by the trial court or by this court. See, Bartholf v. Baker, Fla.1954, 71 So.2d 480 ; 9A Fla.Jur., Damages, § 98 (1972). Here, from the size of the verdict, we think it evident the jury not only failed to separate the fall from the original injury, but also was quite likely swayed by sympathy to award damages which it based, in part, upon the tragic injury originally sustained by the plaintiff Martin. Considering all circumstances, a verdict of $350,000 is shocking to our judicial consciences.

We consider a remittitur appropriate in this case. In so ordering, an appellate court has two courses open to it. It may either set the amount of the remit-titur itself, see Washwell, Inc. v. Morejon, Fla.App.3d 1974, 294 So.2d 30, or remand for the trial judge to set an appropriate remittitur, see Smith v. Goodpasture, Fla. App.2d 1965, 179 So.2d 240; Burch v. Gilbert, Fla.App.1st 1963, 148 So.2d 289.

Due to the familiarity of the trial judge with the proceedings and his availability to review this case upon remand, we adopt the latter course and remand to the eminent trial judge, Honorable James, A. Len-festey, to enter an appropriate remittitur. If, in the opinion of the trial judge, it should be impossible for him to determine a proper amount of remi'ttitur, then he is directed to grant a new trial on the question of damages only.

McNULTY, C. j., and GRIMES, J., concur.


text:
    Thomas J. McGOVERN et al., Appellants, v. Sam AMIRA, as Director, Officer and Stockholder of and on behalf of Dependable Air-Conditioning & Appliances, Inc., and Amira Air-Conditioning & Appliances, Inc., all Florida Corporations, Appellees.
    No. 75-1832.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.
    Rehearing Denied April 14, 1976.
    Thomas J. McGovern, Fort Lauderdale, for appellants.
    Salvatore V. Fiore and Bruno L. Di Giulian of Di Giulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauderdale, for ap-pellees.
   PER CURIAM.

This is an interlocutory appeal from an order granting a temporary injunction. We have considered the record, briefs and oral arguments. It is our opinion that no reversible error has been demonstrated with one exception. The injunction was entered without bond. This was error which must be corrected. The evidence manifestly shows that appellants will incur risks and danger of loss depending on the ultimate outcome of this litigation. F.R. C.P. 1.610(b); International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 390 v. Miami Retail Grocers, 76 So.2d 491 (Fla.1954); Von Hagen v. Puntervold, 258 So.2d 27 (Fla.App. 3rd 1972); Tampa Port Authority v. Deen, 179 So.2d 416 (Fla.App. 2nd, 1965).

The order is affirmed except as to the requirement that no bond be posted. The cause is remanded with instructions to require an injunction bond for such costs and damages as defendants might suffer in the event it is ultimately determined that the injunction was wrongfully entered.

Affirmed in part and reversed in part, with directions.

WALDEN, C. J., DOWNEY, J., and MORROW, RUSSELL O., Associate Judge, concur.


text:
    Levie CODIE, Appellant, v. Hazel Lee CODIE, Appellee.
    No. 75-1045.
    District Court of Appeal of Florida, Second District.
    March 26, 1976.
    William T. Haverfield, II, of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellant.
    Anthony J. Diamond, Fort Myers, for appellee.
   PER CURIAM.

In this appeal from an alimony award, we find no reversible error in the granting of a lump sum in the amount of $10,300. The court ordered such sums payable within thirty-five (35) days, however, and the record affirmatively demonstrates no present ability on the part of appellant to comply therewith.

The record does demonstrate, on the other hand, wherewithal to comply with the alimony award well within two (2) years from the taking of testimony. So, this appeal having taken some eight months during which the time for compliance with the judgment has been stayed, we think that in the absence of a material change in circumstances in the meantime appellant ought be in a position to comply with the judgment within approximately the next ensuing year.

In view whereof the judgment appealed from should be, and it is hereby, reversed insofar as it requires appellant to comply therewith within thirty-five (35) days; and the cause is remanded for further proceedings and the entry of an appropriate judgment not inconsistent herewith. In all other respects, the judgment is affirmed.

McNULTY, C. J., and HOBSON and SCHEB, JJ., concur.


author: WALDEN, Chief Judge. DOWNEY, Judge

text:
    ORANGE COUNTY, Florida, a political subdivision of the State of Florida, et al., Appellants, v. BUTLER ESTATES CORPORATION et al., Appellees.
    No. 75-553.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1976.
    Rehearing Denied April 14, 1976.
    Steven R. Bechtel, of Mateer & Harbert, Orlando, for appellants.
    Davisson F. Dunlap, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Orlando, for appellees.
   WALDEN, Chief Judge.

The zoning authority of Orange County appeals a trial court order requiring it to rezone appellees’ property in accord with the following guideline:

“any rezoning less than close to sixteen (16) dwelling units per gross residential acre for garden apartments on the Petitioners’ property would not comply with . . . [this court’s] Amended Order.”

For background this court has affirmed, as modified, a past order of the trial court in this same causé, in Orange County v. Butler Estates Corporation, 303 So.2d 66 (4th DCA Fla.1974):

“Although the final judgment directing appellant to rezone appellees’ property to a zoning classification no less liberal than a P-D zoning classification is not a judicial assumption of a legislative power, we are of the view that to direct the appellant to rezone such property ‘in accordance with the [appellees’] application’ does, indeed, constitute an encroachment upon the exercise of the legislative power of the appellant.” Id. at 67.

This opinion was rendered upon an appeal by the zoning authority which had originally sought to deny appellees’ rezoning request altogether. Upon remand the trial court entered an order with the following directive:

“. . .to [forthwith] rezone the Petitioner’s property to a zoning classification not less liberal than a P-D zoning classificátion with a guideline as to units per gross residential acre, the zoning on the adjacent property, [the ‘Russell Tract’].”

The “Russell Tract” had been approved at 19.1 units per acre. The Zoning Authority of Orange County rezoned the subject property, in an attempt to comply with the order. The trial court then found that this rezoning was not in accord with the amended order, and entered the order now appealed. We reverse, and hold that the rezoning was sufficient to comply with the trial court’s amended order. The facts and circumstances attending the rezoning rendered the decision of the zoning authority a fairly debatable one.

The property in question covers approximately 113.5 acres. The developer had originally requested zoning for 1,595 multi-family dwelling units at a gross residential density of 14.9 dwelling units per acre. After the trial court entered its amended order, appellees presented a revised plan proposing 1,671 dwelling units • at a gross residential density of 15.9 dwelling units per acre. Following a public hearing the Board of Commissioners approved a development of what they deemed to be 10.1 gross dwelling units per acre. This figure was arrived at by reducing the total planned development acreage by 38 acres, on the grounds that that acreage was in a natural drainage and flood prone area, and was in an area not properly situated for proposed recreation and business sites. Appellees owners, however, included the 38 acres in the acreage total when making a determination of gross unit per acre permitted by the revised zoning, and concluded the development had been approved at only 6.1 units per acre. The determination of units per acre must be made upon the number of gross acres, a term defined in Art. XXIX § 2 of the Orange County Planned Development District:

“An acre of land committed to the explicit use of residential, commercial, or industrial buildings or structures, or which provides access or contributes to the amenities of the development, such as private or public park areas, open space, streets, access drives to parking lots, and parking lots, hand devoted to school buildings, water areas, utility plants, and property similarly used shall not be included.”

The determination of the Zoning Authority to delete the 38 acres from development was one within its discretion, but when the gross acreage measurement was calculated the 38 acres should have been included in the land total. We note that full credit was given on total acreage set aside as flood prone areas when the adjacent tract was rezoned. The unit allowance is, therefore, 6.1 units per acre. Notwithstanding this figure is less than, the 19.1 units per acre permitted the adjacent property, (the Russell Tract), the zoning authority has presented ample evidence of considerations that affected its decision and made it a fairly debatable one. Although the Russell Tract was permitted a higher density, it is closer to a commercial intersection; the zoning authority found by studies that the Russell Tract lent itself to a more logical vehicular pattern. It does not follow that simply because one tract of land has a certain density or use, that the adjoining properties must receive, or are suited for, the same use. In City of Miami Beach v. Wiesen, 86 So.2d 442 (Fla.1956), the Supreme Court noted that such a theory would lead to the eventual destruction of any zoning plan by “judicial erosion.” See City of Miama Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941). The zoning authorities presented evidence the two properties were dissimilar in regard to soil types and flood prone areas. They presented testimony relative to the dissimilar shapes of the properties, and their dissimilar locations. The Zoning Board gave evidence that the plan for the Russell Tract provided for a graded density towards the instant property, and that the instant rezoning was a continuation of that receding density. The zoning authorities were mindful that they wished to keep high density development from extending into areas planned for continued agricultural zoning. It is notable that the majority of the surrounding properties were zoned for only one unit per acre under the rural classification. Therefore this situation can be distinguished from authorities holding zoning to be arbitrary and confiscatory, most of which deal with areas that had become islands by virtue of more liberally zoned surroundings. Tollius v. City of Miami, 96 So.2d 122 (Fla.1957); City of South Miami v. Hill-bauer, 312 So.2d 241 (3d DCA Fla.1975); Davis v. Sails, 318 So.2d 214 (1st DCA Fla.1975) ; Stokes v. City of Jacksonville, 276 So.2d 200 (1st DCA Fla. 1973) ; Metropolitan Dade County v. Pierce, 236 So.2d 202 (3d DCA Fla. 1970); Manilow v. City of Miami Beach, 213 So.2d 589 (3d DCA Fla. 1968).

These considerations warrant the decision that the rezoning was fairly debatable and therefore proper. City of St. Petersburg v. Aikin, 217 So.2d 315 (Fla. 1968); City of Miami Beach v. Wiesen, supra; City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953); Watson v. Mayflower Property, Inc., 223 So.2d 368 (4th DCA Fla.1969); McCormick v. City of Pensacola, 216 So.2d 785 (1st DCA Fla. 1968). Though a judicial forum might disagree with a zoning decision, it is not permitted to substitute its discretion for that of the legislative body if the issue is a fairly debatable one. City of Miami Beach v. Wiesen, supra; City of Miami v. Schutte, 262 So.2d 14 (3d DCA Fla.1972). It was petitioners’ burden to prove the rezoning, made upon a new petition, was an abuse of discretion, City of Miami Beach v. Wiesen, supra; Town of Hialeah Gardens v. Hebraica Community Center, Inc., 309 So.2d 212 (3d DCA Fla.1975); Board of County Commissioners v. Ralston, 284 So.2d 456 (2d DCA Fla. 1973); Miles v. Dade County, 260 So.2d 553 (3d DCA Fla. 1972); Watson v. Mayflower Property, Inc., supra; Manilow v. City of Miami Beach, supra; McCormick v. City of Pensacola, supra; Metropolitan Dade County v. Kanter, 200 So.2d 624 (3d DCA Fla. 1967), but these petitioners did not sufficiently carry that burden. This being so, there is nothing to warrant any judicial intervention into the decision of the Zoning Authority.

We reverse the final order of the trial court and hold the action of the zoning authorities was proper under the fairly debatable rule and the mandates of the law of the case.

REVERSED AND REMANDED.

OWEN, J., concurs.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge

(dissenting).

While agreeing with much of what is said in the majority opinion, I cannot agree with the conclusion reached therein.

This litigation commenced when the county commission refused to rezone appel-lees’ property. The circuit court ruled the zoning classification was confiscatory and directed the county to rezone the property to no less liberal a zoning classification than P-D, in accordance with the property owner’s application. On appeal this court, in Orange County v. Butler Estates Corporation, Fla.App.1974, 303 So.2d 66, affirmed the judgment of the trial court as modified — the modification being the deletion of the words “in accordance with the [appellees’] application.”

Upon remand the trial court ordered the county to rezone the property to a classification no less liberal than a P-D zoning classification “with a guide line as to units per gross residential acres, the zoning of the adjacent property [the Russell Tract]”. Thereupon the appellees and the County Zoning and Planning staff made numerous attempts to reach a satisfactory resolution of the problem without success. So after several public hearings the county commission rezoned the property to a P-D zoning classification with numerous conditions, including a residential density of 10.1 dwelling units per acre, after excluding 38 acres from consideration in determining the gross number of residential acres available.

Upon further consideration of this rezoning and after hearing the testimony of the County Planning Director, the trial court entered the judgment appealed from holding that the county had not complied with the court’s order in that it had improperly excluded the 38 acres from consideration in determining the proper number of gross residential acres involved. The court also held the number of allowable dwelling units per acre was also insufficient. The judgment then directed the county to reconsider the matter and allow not less than approximately 16 dwelling units per gross residential acre.

In my judgment this record justifies the county commission in treating appellees’ property somewhat differently than the adjacent property known as the Russell Tract. The dissimilarities are sufficiently numerous to warrant a less liberal use of appellees’ property. However, the record also supports the trial judge’s conclusion that the county was not justified in excluding the 38 acres in question in determining the number of gross residential acres available so as to calculate the number of dwelling units per acre to be allowed. As the trial court found, if those 38 acres are included in the calculation, the property owner would be allowed approximately 6.1 dwelling units per acre. But in my opinion the the propriety of restricting appellees’ use of their property to 6.1 dwelling units per acre, even after after giving full consideration to such differences as exist between appellees’ property and the Russell Tract, would not be fairly debatable. On the contrary, I believe it would be an arbitrary determination and thus unacceptable. As a matter of fact, even the appellants have not argued here that allowance of 6.1 dwelling units per acre is a reasonable restriction. Appellants simply contend that taking the gross residential acreage which the county determined to be approximately 75 acres, the allowable dwelling units of 10.1 per acre is fair.

Therefore, I would approve the trial judge’s action in sending the matter back to the county commission for further consideration so that the commission could, in its legislative wisdom, arrive at a more reasonable determination of the number of allowable residential dwelling units per acre. On the' other hand, the portion of the judgment under consideration which specifies the number of dwelling units which the commission must allow as no less than 16 is, I think, an incursion into the sphere of legislative influence which should be avoided. That is the sense of the modification this court imposed on the trial court’s original judgment in the first appearance of this case in this court.

Of course, I realize that a point may be reached where it may become necessary for courts to “take the bull by the horns” as they have sometimes done when a legislative body simply refuses to act. See, e. g., Hillsborough County v. Twin Lakes Mobile Home Village, Inc., Fla.App.1964, 166 So.2d 191. But there is no suggestion here of bad faith on the part of the appellants. On the contrary, the record is replete with evidence that all of the parties here have extended themselves in an effort to resolve this controversy in a manner consistent with their divergent views. So we have no reason to believe that the appellants would not once again in good faith attempt to follow the instructions of the court and exercise their legislative discretion fairly and reasonably.

As a final point, I think we would be remiss if we did not note that the trial judge has labored mightily in this case to help facilitate the resolution of this controversy. The judgment under review demonstrates that he has given the matter considerable thought and reflection in his efforts to reach a practical and acceptable determination of the issues.

For the foregoing reasons I would modify the judgment on appeal to eliminate the provision thereof requiring appellants to allow a designated number of dwelling units per acre and affirm the judgment as modified.


author: CROSS, Judge.

text:
    Samuel J. TRAMMEL, Appellant, v. RELIANCE INSURANCE COMPANY and Larry Frady Crane Service, Appellees.
    No. 75-1076.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1976.
    Rehearing Denied April 14, 1976.
    Thomas A. Hoadley of Howell, Kirby Montgomery, D’Aiuto & Dean, and Edward W. Starr, West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellees.
   CROSS, Judge.

Appellant, Samuel J. Trammel, seeks review of a final judgment entered in favor of appellees, Larry Frady Crane Service and Reliance Insurance Company, in an action seeking damages for personal injuries sustained by the appellant as a result of alleged negligence in the operation of a crane.

Upon review of the record on appeal and after consideration of the briefs submitted by counsel for the respective parties, we determine that the trial court erroneously instructed the jury that assumption of risk was a complete bar to recovery in a negligence action. The assumption of risk doctrine has been completely abrogated by the adoption of the comparative negligence principle. Rea v. Leadership Housing, Inc., 312 So.2d 818 (Fla.App.1975). Accordingly, the judgment entered in favor of appel-lees, Larry Frady Crane Service and Reliance Insurance Company, is reversed and the cause is remanded for a new trial.'

Reversed and remanded.

OWEN and MAGER, JJ., concur.


author: DOWNEY, Judge.

text:
    RONAL BUILDERS, INC., Appellant, v. POWELL BROTHERS, INC., Appellee.
    No. 75-492.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.
    Rehearing Denied April 14, 1976.
    Leo Greenfield of Law Offices of Leo Greenfield, P.A., North Miami, for appellant.
    Richard G. Gordon of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lau-derdale, for appellee.
   DOWNEY, Judge.

We have fully considered the appellate points raised and conclude that they are without merit.

Appellant contends that the lien involved herein is a fraudulent lien as provided in § 713.31(2) (b), F.S.1973. Such a defense is an affirmative one and must be pleaded. That was not done here. See Midway Shopping Mall, Inc., v. Airtech Air Con., Inc., Fla.App.1971, 253 So.2d 900.

Since appellee had not completed the contract the final payment was not due and the affidavit requirement of § 713.-06(3) (d)(1) is inapposite. Appellee was entitled to a lien for so much of the contract price as was unpaid less the final payment or 10%, whichever was greater.

For the foregoing reasons we affirm the judgment appealed from.

AFFIRMED.

OWEN, J., and DRIVER, B. J., Associate Judge, concur.


text:
    Leon J. McCOMBS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-680.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1976.
    Rehearing Denied April 14, 1976.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of receiving stolen property. Tangible evidence (i. e., the stolen property) introduced by the State over objection had been the subject of a pretrial motion to strike, hearing on which was held during trial. The tangible evidence was taken from the person of appellant while he was in custody as a result of a warrantless arrest for which the arresting officer did not have probable cause. The arrest was illegal and thus the tangible evidence was the fruit of an illegal search of appellant’s person. It was error to deny the motion to suppress. Upon remand such motion should be granted.

The judgment is reversed and this cause remanded for a new trial.

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


text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. David A. SMITH, a minor, By and Through his mother and next friend, Pearl Smith, Appellees.
    No. 75-502.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.

      High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellant.
    Horton, Perse & Ginsberg, Welsh & Carroll, Joel R. Teague, Miami, for appel-lees.
    Before PEARSON and NATHAN, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the Travelers Insurance Company, defendant in the trial court, from a final judgment in favor of the plaintiff, David A. Smith, a minor, by and through his mother and next friend, Pearl Smith, in an action for the determination of personal injury protection (PIP) benefits under the provisions of the Florida Automobile Reparations Reform (No-Fault Insurance) Act, specifically §§ 627.732, 627.733 and 627.736, Fla.Stat.

The minor plaintiff, David A. Smith, was crossing a street when he was struck by an automobile owned by Sam Jarrett and being operated by Gary Woodard with Jarrett’s permission and consent. Jarrett did not have insurance on the automobile, but Woodard, the driver, is the named insured in the appellant’s (Travelers Insurance Company’s) policy. Neither plaintiff, David A. Smith, nor his mother, Pearl Smith, owned a motor vehicle or resided in a household where there was a motor vehicle. ■

The plaintiffs filed an application for PIP benefits with the defendant, Travelers. When coverage was denied, the plaintiffs filed a complaint and then an amended complaint for damages in the circuit court. Travelers failed to timely respond and a default was entered against it. Following negotiations, the default was voluntarily set aside by the plaintiffs in return for admissions by Travelers, as reflected in a letter agreement in which Travelers admitted all of the factual allegations of the plaintiffs’ amended complaint, except the allegation of the plaintiffs’ entitlement to personal injury protection benefits for medical and other expenses set forth in the No Fault Act under the policy issued by Travelers to Gary Woodard. Thus, with all of the facts being admitted, including

“9. That the motor vehicle which was being operated by GARY WOODARD is a motor vehicle which he was controlling and using as a temporary substitute motor vehicle for the motor vehicle which he usually operates, and is, therefore, an insured motor vehicle under the policy issued by the Defendant, THE TRAVELERS INSURANCE COMPANY”, (emphasis added)

the only issue remaining is the legal question of coverage. Based on the facts as stipulated, the trial court made a determination that the plaintiffs are entitled to coverage under the policy and entered judgment in their favor.

In the liability protection section of Woodard’s policy, it is provided that,

“ ‘owned automobile’ means :
(d) a temporary substitute automobile;
‘temporary substitute automobile’ means any automobile . . . not owned by the named insured, while temporarily used with the permission of the owner as a substitute for the owned automobile . . . when withdrawn from normal use because of its breakdown, repair servicing, loss or destruction . .

In the personal injury protection section, it is provided in pertinent part that PIP benefits will be paid for enumerated expenses

“incurred as a result of bodily injury, caused by an accident arising out of the ownership, maintenance or use of a motor vehicle and sustained by:
(2) any other person while ... a pedestrian, through being struck by the insured motor vehicle.
‘Insured motor vehicle’' means a motor vehicle of which the named insured is the owner and with respect to which (a) the bodily injury liability insurance of the policy applies and (b) security is required to be maintained under the Florida Automobile Reparations Reform Act.”

In construing Woodard’s policy, we are mindful that it must be considered in its entirety to determine the intentions of the parties. New Amsterdam Casualty Company v. Addison, Fla.App.1964, 169 So.2d 877. In construing the provisions of an insurance policy to determine the intention of the parties, the proper rule of interpretation, as set out in Aetna Casualty & Surety Company v. Cartmel, 1924, 87 Fla. 495, 100 So. 802, 803, is:

“ ‘The policy must be liberally construed in favor of the insured so as not to defeat without a plain necessity his claim to the indemnity which in making the insurance it was his obj ect to secure.’ ”

After construing an insurance policy, if ambiguity exists because of the existence of more than one possible interpretation, the ambiguity must be resolved against the insurance company that drafted the particular language in question and in favor of the insured; and when the terms of an insurance policy are susceptible of two interpretations, that interpretation which sustains the claim for indemnity must be adopted. Aetna Insurance Company v. Webb, Fla.App.1971, 251 So.2d 321, 323. See also Stuyvesant Insurance Company v. Butler, Fla.1975, 314 So.2d 567, 570. In our opinion, the policy under review is ambiguous on the question to be decided, ■ in that the provisions for coverage refer to “owned automobiles,” “temporary substitute automobiles” and “insured motor vehicles.” In applying the rules for interpretation and construction as set out above, we resolve the ambiguity in favor of the plaintiffs. The parties have admitted that the vehicle driven by Woodard was a “temporary substitute automobile.” Under the liability section of the policy, a temporary substitute automobile is an “owned automobile” for purposes of liability coverage. Resolving the ambiguity in favor of PIP coverage, we find that the temporary substitute automobile, which is an owned automobile under the liability section, is also an insured automobile under the PIP section.

Accordingly, the final judgment herein appealed is affirmed.


text:
    William W. SOLKIN, Appellant, v. COX ENTERPRISES, INC., etc., et al., Appellees. Wayne AKERS, Appellant, v. PALM BEACH NEWSPAPERS, INC., etc., et al., Appellees. Kathryn J. AKERS, Appellant, v. PALM BEACH NEWSPAPERS, INC., etc., et al., Appellees.
    Nos. 75-1786, 75-1788 and 76-293.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1976.
    Rehearing Denied April 14, 1976.
    F. Kendall Slinkman, of Farish & Farish, West Palm Beach, for appellants,
    Larry Klein and Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellee-Cox Enterprises, Inc.
   PER CURIAM.

Affirmed upon the authority of Elmex Corp. v. Atlantic Federal Savings & L. Ass’n, 325 So.2d 58 (Fla.App.4th 1976); Hermetic Seal Corporation v. Savoy Electronics, Inc., 290 F.Supp. 240 (S.D.Fla. 1967) aff’d 401 F.2d 775 (5 Cir. 1968).

WALDEN, C. J., and CROSS and MA-GER, JJ., concur.


text:
    CITY OF GAINESVILLE, Florida, a Municipal Corporation, and Peter D. Fancher, Appellants, v. Edward M. HOWARD, a minor by and through his father and next friend, Ralph M. Howard, and Ralph M. Howard, as Trustee for Marilyn D. Howard, Appellees.
    No. AA-291.
    District Court of Appeal of Florida, First District.
    March 16, 1976.
    Rehearing Denied April 12, 1976.
    Joe C. Willcox, of Dell, Graham, Will-cox, Barber, Rappennecker, Ryals & Henderson, Gainesville, for appellants.
    Robert O. Stripling, Jr., of Chandler, O’Neal, Avera, Gray, Lang & Stripling, Gainesville, Irving J. Whitman of Whitman & Wolfe, Miami, R. Franklin Ritch, of Jones & Ritch, Gainesville, and Robert D. Gobelman, Jacksonville, for appellees.
   PER CURIAM.

This interlocutory appeal, having been found to be without substantial merit, is dismissed pursuant to Florida Appellate Rule 4.2c.

BOYER, C. J., and RAWLS and SMITH, JJ., concur.


author: McCORD, Judge.

text:
    Carlyle HATCHELL, Appellant, v. STATE of Florida, Appellee.
    No. W-230.
    District Court of Appeal of Florida, First District.
    March 16, 1976.
    Rehearing Denied April 12, 1976.
    Richard W. Ervin, III, Public Defender, David J. Busch, Asst. Public Defender; and Carlyle Hatchell, in pro per.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Appellant was charged by information with second degree murder, was tried by jury, found guilty, was adjudged guilty by the court and sentenced. Appellant was represented throughout the trial proceedings and the initial stages of the appeal by private counsel. He has subsequently been represented on this appeal by the public defender. After the filing of the information, appellant’s counsel made a “Motion Suggesting Insanity” in which he requested that the court appoint experts to examine the defendant and fix a time for hearing to determine defendant’s present mental condition. The court then entered an order appointing a psychiatrist to examine appellant and stated in the order that it appeared there were reasonable grounds to believe that appellant was unable to prepare his defense or to stand trial in the case. The psychiatrist subsequently filed a detailed report of his examination concluding:

“In my opinion, the patient at the present time is probably mentally competent to understand the charges facing him and to adequately assist counsel in his own defense. The patient’s amnesic reporting for the alleged event is probably an accurate representation as such amnesias are common in individuals given to alcohol problems. In my opinion he was mentally competent at the time of the alleged offense, though it is possible that he misread the intentions of the other individual or suffered from some diminished coordination which would compromise his control over a weapon. It is my opinion that he understood the nature, quality and wrongfulness of his acts at that time.”

It does not appear that a sanity hearing was thereafter held or that the trial judge made an affirmative ruling as to appellant’s sanity, or that appellant made any further motion for hearing or for ruling by the court on the proposition. He and his counsel were apparently satisfied with the psychiatric report and his competency to stand trial because the next thing that occurred was a plea of guilty by appellant to the lesser included offense of manslaughter with a negotiated sentence. Subsequently, however, appellant moved to withdraw his guilty plea and the court granted same. Appellant was thereafter tried by jury and found guilty of murder in the second degree. Rule 3.210(a)(1) and (2) states as follows:

“(1) If before or during trial the court, of its own motion, or upon motion of counsel for the defendant, has reasonable ground to believe that the defendant is insane, the court shall immediately fix a time for a hearing to determine the defendant’s mental condition. The defendant shall designate his attorney to serve as his representative under Fla.Stat. § 394.459(11), F.S.A., in the event the defendant is found mentally incompetent. The court may appoint not exceeding three disinterested qualified experts to examine the defendant and to testify at the hearing as to his mental condition. Other evidence regarding the defendant’s mental condition may be introduced at the hearing by either party.
(2) If the court decides that the defendant is sane, it shall proceed to trial.”

It is our view that appellant waived the foregoing requirements of the Rule as to hearing and a specific ruling by the court on his sanity. He went to trial without making any objection or making any further request for a sanity hearing. The record shows that appellant’s counsel announced to the court at the outset of the trial that he was ready for trial. The record further shows that appellant did not plead “not guilty by reason of insanity”; that he did not raise any issue as to the lack of sanity hearing in either his motion for new trial or in his' assignments of error. Such question was raised for the first time in appellant’s brief on appeal. In addition, the transcript of the trial gives every indication that appellant was fully capable of understanding the charges against him and assisting his counsel in his defense.

In addition to the insanity issue, appellant contends that the trial court erred in not granting his motion for a judgment of acquittal; that the state failed to demonstrate an essential element of the crime of second degree murder, to wit: depraved mind. We have examined the record and find it sufficient to support the jury’s verdict.

Affirmed.

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


author: PER CURIAM. SMITH, Judge

text:
    Archie Nathaniel WEATHERSPOON, Appellant, v. STATE of Florida, Appellee.
    No. X-494.
    District Court of Appeal of Florida, First District.
    March 10, 1976.
    Rehearing Denied April 12, 1976.

      S. Gunter Toney, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

On this appeal from a judgment of conviction on two counts of robbery, to which appellant pleaded nolo contendere reserving the right to appeal, we are concerned with the admissibility in evidence of a confession obtained, after Miranda warnings were given, during appellant’s detention for six hours between his arrest and his delivery, as a 17-year old juvenile, to the intake officer of a juvenile detention center.

The relevant facts are: Munford’s Maj ik Market was robbed at 7:36 a. m. on August 14, 1974 by one McDaniel who was arrested at 8:00 o’clock and who implicated appellant. Appellant was taken into custody at approximately 10:30 a. m. on the same date. At 11:00 a. m. appellant’s parents, grandmother and aunt arrived at the police station. Appellant’s father identified himself and inquired about his son and was told that appellant was being held. Appellant was observed being escorted upstairs. The relatives remained in the lobby of the police department until 4:00 or 4:30 p. m. when finally allowed to speak with appellant. In the meantime, according to the testimony of one of the officers, that officer had gained knowledge between 2:30 o’clock and 3:00 o’clock p. m. that appellant was a juvenile. Thereafter, at .3:35 Pm. appellant confessed to the crimes charged against him.

In Florida, juveniles are afforded rights and considerations not available to adult offenders. (See Chapter 39, Florida Statutes) It is uncontradicted that on the date of the offenses here charged appellant was in fact a juvenile. The applicable laws were not observed by the state. The challenged confession was extracted while appellant’s parents waited in frustration to see and talk to their son, and after at least one of the officers became aware of appellant’s true age. That confession should not have been admitted.

Reversed.

BOYER, C. J., and SACK, MARTIN, Associate Judge, concur.

SMITH, J., dissents.

SMITH, Judge

(dissenting):

The trial court made explicit findings that the police were misled by appellant’s statement that he was 18 years old and by circumstances corroborating the statement and that the officers dealt with appellant as a juvenile immediately upon learning his true age. We are bound to give those findings effect, supported as they are by substantial competent evidence in the record. Accordingly, the confession given during the detention was not inadmissible by reason of the officers’ failure to deal more promptly with appellant as a juvenile. There was no “unreasonable delay” in delivering appellant to the appropriate intake officer. Sec. 39.03(3)(a), F.S.1973. Nor was the delay such as to require exclusion of the confession under the doctrine of Jacobs v. State, 248 So.2d 515 (Fla.App. 1st, 1971), cert. den. 253 So.2d 877 (Fla.1971), and Oliver v. State, 250 So.2d 888 (Fla. 1971). I would affirm.


author: PER CURIAM. PER CURIAM.

text:
    Charles Louis BODDIE, Appellant, v. STATE of Florida, Appellee.
    No. Z-99.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1976.
    Order of Affirmance April 8, 1976.
    Grant F. Spinner, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant, defendant in the trial court, was charged by information with possession of heroin. A defense motion to suppress the evidence was denied whereupon defendant entered a plea of nolo contend-ere. From the resulting judgment and sentence this appeal is taken.

Nothing in the record on appeal indicates that the plea of nolo contendere was entered with any reservation of the right to appeal. (See State v. Ashby, Sup.Ct. Fla.1971, 245 So.2d 225; Rule 3.6, subd. b, FAR and Rule 3.7, subd. f(3), FAR).

A nolo contendere plea admits all facts which are well pleaded and waives all formal defects in the pleadings of which the accused could have availed himself by a plea of not guilty or motion to quash. (Peel v. State, Fla.App.2nd, 1963, 150 So. 2d 281 and Farrell v. State, Fla.App. 1st, 1975, 317 So.2d 142).

On December 10, 1975 appellant filed a motion for an extension of time “to allow the court reporter to transcribe proceedings which were not included in the original directions to the clerk, but are necessary for fair determination of the issues herein.” That motion was granted. A supplemental record has been filed but it too fails to reveal that the plea of nolo contendere was entered with any reservation of the right to appeal. The record does not reveal any attempt to supplement the record by stipulation between the parties as to whether or not there was any such reservation. Neither does there even appear in the record any affidavit of his attorney (see Beverly v. State, Fla.App. 1st, 1975, 322 So.2d 597).

Accordingly, of the Court’s own motion, appellant is allowed to and until March 1, 1976, within which to file a supplemental record reflecting that his plea of nolo contendere was in fact conditioned on a reservation of right to appeal, failing so to do this Court will have no alternative but to affirm the judgment and sentence.

BOYER, C. J. and RAWLS and Mc-CORD, JJ., concur.

Order of Affirmance

PER CURIAM.

Appellant having failed to file supplemental record as permitted by this Court’s per curiam opinion of February 20, 1976 and it appearing that the record fails to reflect that the appellant’s plea of nolo contendere was entered with any reservation of right to appeal any point of law, the judgment and sentence giving rise to this appeal are

AFFIRMED.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.