text:
    CITY OF MIAMI, a Florida Corporation, Petitioner, v. ST. JOE PAPER COMPANY, a Florida Corporation, Southeast Properties, Inc., a Florida Corporation, Hugh E. Matheson, Jr., Individually, and Sally S. Dommerich, formerly Sally S. Matheson, Individually, Respondents.
    No. 51775.
    Supreme Court of Florida.
    Oct. 5, 1978.
    Rehearing Denied Dec. 14, 1978.

      Guy B. Bailey, Jr. and Jesse C. Jones of Bailey & Dawes, Miami, for petitioner.
    Wm. P. Simmons, Jr. and Eric B. Meyers of Shutts & Bowen, Miami, and Marion E. Sibley of Sibley, Giblin, Levenson & Glaser, Miami Beach, for St. Joe Paper Co.
    Joseph P. Klock, Jr. of Steel, Hector & Davis, Miami, for Southeast Properties, Inc.
    Edmund P. Russo of Russo, Van Doren & Allen, Coral Gables, for Hugh E. Matheson, Jr.
    Nancy G. Linnan, Asst. Gen. Counsel, and J. Kendrick Tucker, Asst. Atty. Gen., Tallahassee for Reubin O’D. Askew, as Governor of the State of Florida.
    Robert L. Shevin, Atty. Gen. of Florida, amicus curiae.
    Chesterfield Smith, Tallahassee, Julian Clarkson, Fort Myers, of Holland & Knight, Tallahassee, for amicus curiae.
    J. Richard Harris of Scott, Burk, Royce, Harris & Loucks, Palm Beach, for The Florida Bar, amicus curiae.
   ADKINS, Justice.

This cause is here on petition for writ of certiorari supported by certificate of the District Court of Appeal, Third District, that its decision reported in 347 So.2d 622 is one which involves a question of great public interest. We have jurisdiction. See Florida Constitution, Article V, Section 3(b)(3).

Petitioner has attacked the constitutionality of Florida Statutes, Chapter 712, the Marketable Record Title Act. Also involved in this case is the question of whether an interloping or wild deed could constitute a root of title.

Petitioner, hereinafter referred to as the city, filed a complaint to quiet its title to a tract of land on the north side of the Miami River at or near the river’s entrance into Biscayne Bay. Upon motion, the amended complaint was dismissed on the ground that it appeared upon the face of the complaint that the city’s claim was barred by the Marketable Record Title Act. The District Court of Appeal, in its opinion, recited the following history of the title, as described in the city’s complaint:

“. . 1. In 1845, the State of Florida acquired from the .United States the lands under navigable waters.
“2. By Warranty Deed recorded December 15, 1898, Henry M. Flagler conveyed to the Florida East Coast Hotel Corporation portions of the mainland north of the Miami River and adjacent to Biscayne Bay:
‘containing fourteen acres, more or less, together with all and singular the riparian rights and submerged lands appertaining thereto.’
“3. By a special act of the Florida Legislature on June 2,1919, the State of Florida granted to the City of Miami ‘for municipal purposes only, all its rights, title and interest ... to all submerged lands, including waterfront and riparian rights’ to an area which included the mouth of the Miami River. The statutory grant included the following section:
******
“ ‘Sec. 2. That this grant shall not affect any other grant heretofore made to any individual or corporation and nothing herein shall be construed as depriving any riparian owner or proprietor of any rights under the laws of this State.’
“4. Beginning in 1920, the Florida East Coast Hotel Corporation bulkheaded and filled a portion of the property in question but left a yacht basin.
“5. On January 10, 1944, the St. Joe Paper Company (one of the defendants) recorded a warranty deed from the Florida East Coast Hotel Corporation which conveyed to it all of the lands with which we are here concerned including the yacht basin which was then in existence. * * * Some time after 1944, St. Joe filled and bulkheaded the yacht basin. “6. All the defendants other than St. Joe claim under recorded deeds from St. Joe Paper Company subsequent to the 1944 deed to St. Joe Paper Company. “7. On February 3, 1949, St. Joe recorded a plat (attached to the complaint) of the lands involved. This plat was approved by the City of Miami prior to recordation.” 347 So.2d at 623 (Fla.1977).

The Marketable Record Title Act is a comprehensive plan for reform in conveyancing procedures. It is a curative act in that it may operate to correct certain defects which have arisen in the execution of instruments in the chain of title. Curative statutes reach back on past events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the parties intended. They operate to complete a transaction which the parties intended to accomplish but carried out imperfectly.

The Marketable Record Title Act is also a statute of limitations in that it requires stale demands to be asserted within a reasonable time after a cause of action has accrued. It prescribes a period within which a right may be enforced.

The Marketable Record Title Act is also a recording act in that it provides for a simple and easy method by which the owner of an existing old interest may preserve it. If he fails to take the step of filing the notice as provided, he has only himself to blame if his interest is extinguished. The legislature did not intend to arbitrarily wipe out old claims and interests without affording a means of preserving them and giving a reasonable period of time within which to take the necessary steps to accomplish that purpose.

This court in Mahood v. Bessemer Properties, Inc., 154 Fla. 710, 18 So.2d 775 (1944), held that the legislature may legitimately use a recording statute as a means of getting rid of stale claims. Florida Statutes 695.20, enacted in 1941, voided contracts for the purchase of lands which were left by the collapse of the Florida Real Estate boom of the 1920’s. Under the terms of the statute, persons who had contracted to purchase land prior to a certain date, but had not placed a deed on record or obtained a decree and were-not in possession, were declared to have no interest in the land unless they had given notice of their claims by recordation in one of several ways specified and within six months from the adoption of the statute.

Catsman, the Marketable Record Title Act and Uniform Title Standards, Volume 3, Florida Real Property Practice (1965) Section 6.2 describes the nature of the act as follows:

“The chief purpose of the act is to extinguish stale claims and ancient defects against the title to real property, and, accordingly, limit the period of search. The act is different from a statute of limitations. In a statute of limitations a claim of a vested, present interest is cut off because of the claimant’s failure to sue. If suit is not filed, the claim is lost. By the Marketable Record Title Act, any claim or interest, vested or contingent, present or future, is cut off unless the claimant preserves his claim by filing a notice within a 30-year period. See § 6.5. If a notice is not filed, the claim is lost. The act also goes beyond a curative act. Curative legislation only corrects certain minor or technical defects through the passage of time, whereas under the Marketable Record Title Act, most defects or clouds on title beyond the period of 30 years are removed and the purchaser is made secure in his transaction.”

This court has acknowledged the constitutionality of the act in Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla.1970), and Odom v. Deltona Corporation, 341 So.2d 977 (Fla.1976). We now specifically hold that the Marketable Record Title Act is constitutional.

Courts of other states have ruled that similar marketable title acts are constitutional. See Wichelman v. Messner, 250 Minn. 88, 83 N.W.2d 800 (1957) (in depth discussion of the Act’s constitutionality); Tesdell v. Hanes, 248 Iowa 742, 82 N.W.2d 119, 123 (1957) (“We are satisfied the legislature had ample authority to enact a limitation . . . subject to a condition that a reasonable time must elapse before it becomes effective.”); Lane v. Traveler’s Insurance Company, 230 Iowa 973, 299 N.W. 553, 555 (1941) (“little doubt of the desirability of statutes giving greater effect and stability to record titles.”) See also discussion in Note, Constitutionality of Market Title Legislation, 47 Iowa L.Rev. 413, 428-29 (1962).

Other decisions by this court upholding the constitutionality of similar legislative enactments make it clear that the Act can constitutionally be applied to bar the city’s claim. In Mahood v. Bessemer Properties, Inc., supra, this court upheld the constitutionality of the application, to a purchaser under a 1925 contract, of a 1941 act which removed from titles to realty the clouds of unperformed contracts of record unless suit be brought within six months. In In Re Estate of Brown, 117 So.2d 478 (Fla.1960), this court held constitutional the application, to a claim arising before its passage, of a 1953 statute which barred claims against an estate after three years. In H. K. L. Realty Corporation v. Kirtley, 74 So.2d 876 (Fla.1954), this court upheld the constitutionality of the application of a twenty-year statute of limitations to mortgages on a given date after one year from such given date on the ground that a reasonable time is provided for the enforcement of a cause of action before the restriction becomes effective. See Buck v. Triplett, 159 Fla. 772, 32 So.2d 753, 754-55 (1947) where the court said:

“We are committed to the rule that statutes of this nature [statute of limitations] are good where a reasonable time is allowed to prosecute an asserted right.”

and Campbell v. Horne, 147 Fla. 523, 3 So.2d 125, 126 (1941) where the court said:

“The law is well settled by decisions of the Supreme Court of the United States and in other jurisdictions, that statutes of limitation affecting existing rights are not unconstitutional if a reasonable time is given for the enforcement of the right before the bar takes effect.”

The city contends that the application of the Act to bar its claim violates the due process clause of the Fourteenth Amendment to the Constitution of the United States.

Although it is a most important limitation on state action, due process has never been an absolute prohibition against state legislation adversely affecting property rights. It has been held over and over again that general limitations on state action do not extinguish the state’s police power to enact legislation “reasonably necessary to secure the health, safety, good order, comfort or general welfare of the community.” See Atlantic Coast Line Railroad v. Goldsboro, 232 U.S. 548, 558, 34 S.Ct. 364, 368, 58 L.Ed. 721 (1914).

In determining whether state action violates due process principles, a court must choose between protecting the individual’s guaranteed rights on one hand and the welfare of the general public on the other. This method of determining whether a state meets the requirements of due process is called the “balancing of interest” test. See Simes & Taylor, The Improvement of Conveyancing by Legislation, 255-56 (1960).

The Marketable Record Title Act, designed to simplify conveyances of real property, stabilize titles and give certainty to land ownership, is certainly legislation concerning the welfare of the public. See Chicago Burlington & Quincy Railroad Company v. Illinois, 200 U.S. 561, 592, 23 S.Ct. 341, 50 L.Ed. 596 (1906).

The city contends, however, that the retroactive nature of the Act makes it an arbitrary and unreasonable exercise of police power. But retroactive statutes have been almost universally declared constitutional when a reasonable time was given to protect property interests by complying with the new requirements. Atchafalaya Land Co. v. F. B. Williams Cypress Co., 258 U.S. 190, 42 S.Ct. 284, 66 L.Ed. 559 (1922); Wheeler v. Jackson, 137 U.S. 245, 11 S.Ct. 76, 34 L.Ed. 659 (1890); Vance v. Vance, 108 U.S. 514, 2 S.Ct. 854, 27 L.Ed. 808 (1883).

Thus, the constitutional objection that retroactive application of a statute results in a deprivation of due process is obviated where the statute gives owners of old claims still enforceable at the time of the statutory enactment a reasonable time to take certain steps to preserve their interests.

For example, in Vance v. Vance, supra, the constitution of Louisiana was amended in April, 1868, to provide that “ ‘the tacit mortgages and privileges now existing in the state shall cease to have effect against third persons after the first of January, 1870, unless duly recorded’.” Despite the retroactive effect of the statute in barring property rights conveyed prior to the enactment of the statute, the court held that the statutory limitation affecting those existing rights was constitutional. The court reasoned that such retroactive application was not prohibited by the due process clause of the Fourteenth Amendment because a reasonable time was given for the enforcement of the action before the bar took place.

Indeed, in Wichelman v. Messner, supra, the Minnesota Marketable Record Title Act was attacked on the very ground that its retroactive features violated due process of law. In upholding the Minnesota Act as a proper retroactive recording act the Supreme Court of Minnesota held:

“The recordation provisions of the act provide for a simple and easy method by which the owner of an existing old interest may preserve it. If he fails to take the step of filing the notice as provided, he has himself to blame if his interest is extinguished. ‘The constitutionality of imposing this duty would seem to have been settled beyond question by the decisions sustaining retroactive recording statutes.’ Scurlock, Retroactive Legislation Affecting Interest in Land, Mich. Legal Studies, p. 82; Klasen v. Thomp son, supra [189 Minn. 254, 248 N.W. 817].” 83 N.W.2d at 817.

Two Iowa cases have similarly upheld the validity of the Iowa Marketable Record Title Act as against the same ground of attack. Tesdell v. Hanes, supra; Lane v. Traveler’s Ins. Co., supra.

We are not confronted with the question of whether the Marketable Record Title Act can be utilized to divest the people of the State of Florida of sovereign lands held in public trust for them. This case is not similar to Odom v. Deltona Corporation, 341 So.2d 977 (Fla.1977), where the Trustees of the Internal Improvement Fund without any notice to the public conveyed certain properties. In the case sub judice, the Legislature did not lose control of lands “irrevocably vested” in the trustees, Trustees of Internal Improvement Fund v. Root, 59 Fla. 648, 51 So. 535 (1910), so the grant to the city was effective. The validity of Chapter 8305, Special Acts of 1919, has been recognized by the Trustees of the Internal Improvement Fund. Trustees of Internal Improvement Fund v. Claughton, 86 So.2d 775, 785 (1956).

The Special Act granted to the city “for municipal purposes only” all of the state’s “right, title and interest insofar as the same can be granted, to all submerged lands, including water front and riparian rights.” The provision that the grant was “for municipal purposes only” was not a reservation or exception, as nothing was severed from that which was granted. See City of Jacksonville v. Shaffer, 107 Fla. 367, 144 So. 888 (1932). This provision is a restriction on the use of the property and does not fall within the category of true easements. See Moore v. Stevens, 90 Fla. 879, 106 So. 901, 43 A.L.R. 1127 (1925).

We next consider the question of whether the Marketable Record Title Act applies so as to bar claims of title in the subject property where it was previously held in public trust by the state, but later conveyed to the city. The city contends that certain exceptions in Florida Statutes, Section 712.04, prevent the application of the Marketable Record Title Act to the city’s claim. This statute reads as follows:

“Subject to the matters stated in § 712.-03, such marketable record title shall be free and clear of all estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to the effective date of the root of title. All such estates, interests, claims or charges, however denominated, whether such estates, interests, claims or charges are or appear to be held or asserted by a person sui juris or under a disability, whether such person is within or without the state, whether such person is natural or corporate, or is private or governmental, are hereby declared to be null and void, except that this chapter shall not be deemed to affect any right, title or interest of the United States, Florida or any of its officers, boards, commissions or other agencies reserved in the patent or deed by which the United States, Florida or any of its agencies parted with title.” (emphasis supplied).

The city says that it is an agency of the State of Florida and thereby stands in the place of the state. The language of this section discloses a sharp distinction between the rights of the state and those of municipalities. Under this section a reservation of an “interest in the state” is protected when expressly set forth in a conveyance from the state. The interest of a municipality is the same as that of any other person and may be extinguished by operation of the act. The term agency (as contained in this section) does not include municipalities for Section 712.01(1) Florida Statutes, defining terms used in the act, contains the following:

“The term person as used herein denotes singular or plural, natural or corporate, private or governmental, including the state and any political subdivision or agency thereof as the context for the use thereof requires or denotes.”

The city argues that its claim was not barred by the Marketable Record Title Act because the root of title relied on by St. Joe (i. e., the deed to it from Florida East Coast Hotel Corporation) is a wild deed. St. Joe counters with the argument that Florida East Coast Hotel Corporation acquired title by conveyance from Henry M. Flagler; therefore, St. Joe’s root of title was not a wild deed. St. Joe relies upon Marshall v. Hollywood, Inc., supra, where Atlantic Beach Corporation, with Marshall as majority stockholder, acquired title to the real property in controversy in 1913. In 1924 a forged deed purported to convey the same property to defendant’s predecessors. The defendant, Hollywood, Inc., claimed under a 1931 deed. The disputed land had remained wild, unimproved, and vacant. It was held that the trial court properly dismissed the complaint. Although the deed initiating the chain of title under which defendant claimed was forged and void, this deed formed but one link in the chain predating the effective root of title. The District Court of Appeal (Marshall v. Hollywood, Inc., supra,) affirmed the judgment dismissing the complaint with prejudice and certified its decision to this court as being one which passed upon a question of great public interest. We approved the decision of the District Court of Appeal, saying:

. . Claims arising out of transactions, whether based upon forgeries or not, predating the effective roots of title are extinguished by operation of the Act unless claimants can come in under any of the specified exceptions to the Act. In this case, petitioner fails to qualify under any of the exceptions to the Act, and, therefore, petitioner’s claims are barred. “4. The certified question involved in this cause was, in effect, whether the Marketable Record Titles to Real Property Act, Ch. 712, F.S. confers marketability to a chain of title arising out of a forged or wild deed, so long as the strict requirements of the Act are met. This question is answered in the affirmative.” Marshall v. Hollywood, Inc., 236 So.2d 114, 120.

In Whaley v. Wotring, 225 So.2d 177 (Fla. 1st DCA 1969), plaintiff’s chain of title was based on his predecessor’s 1908 deed, while defendant’s root of title was a land patent issued in 1897. The court applied the Marketable Record Title Act and held that the patentee’s heirs were precluded from asserting whatever claim, if any, they had under the 1897 land patent, since the 1908 deed in plaintiff’s chain of title had been on record for more than thirty years. The court in its opinion said:

“The purpose of Chapter 712, Florida Statutes, F.S.A., the Marketable Record Title Act, is to render marketable any estate in land recorded for thirty years or more and to make same free and clear of any interest arising from a title transaction, act, event, or omission, which occurred prior to the effective date of the root of title. ‘Root of Title’ is defined as the last title transaction recorded at least thirty years. All interest arising prior to root of title is declared null and void unless such interest falls within one of those classes specifically excepted. By legislative declaration this act is to be liberally construed to effect the purpose of simplifying and facilitating land title transactions by allowing persons to rely upon a deed recorded for a period of thirty years or more. The Act contains a provision for protecting those claims which it would extinguish.” 225 So.2d at 181.

In Wilson v. Kelley, 226 So.2d 123 (Fla. 2d DCA 1969), the plaintiffs contended that an instrument could not qualify as a root of title within the contemplation of the Act unless it constitutes part of the chain of title emanating from the sovereign. In rejecting this contention the court said:

“. . .To hold as suggested by plaintiffs would frustrate the Act’s intended beneficial effects, and the Act’s utility would largely be confined to the elimination of ancient use restrictions and to the curing of formal irregularities, a function already performed by other statutes and usually more quickly than the marketable title act.
“The Act, as a marketable title act, is not concerned with the quality of the title conveyed by the root of title so long as the root purports to convey the estate claimed. This can be so even though a deed is not part of the chain of title emanating from the sovereign and is therefore often called an ‘interloping’ or ‘wild’ deed. It can, under the marketable title acts, form a root of title which may eventually cut off the interest of a person who might otherwise have a claim. Therefore, a marketable title act can cure a break in the chain of title, if the break is sufficiently old.” 226 So.2d at 127.

Unquestionably the deed from Flagler to Florida East Coast Hotel Corporation was a wild deed. The effective root of title was the deed from Florida East Coast Hotel Corporation to St. Joe Paper Company on January 10, 1944, and the wild deed was merely a link in a chain commencing before the effective root of title. The claim of the city would be barred under the reasoning in Marshall v. Hollywood, Inc., supra.

However, the city says that Florida East Coast Hotel Corporation did not have title to the submerged lands. The city argues that the conveyance of 14 acres “together with all and singular, the riparian rights and submerged lands appertaining thereto” was ineffective so that Florida East Coast Hotel Corporation held record title to nothing more than the initial 14 acres. To say otherwise, the city contends, would result in Florida East Coast Hotel Corporation holding title by a wild deed to the Atlantic Ocean bottom. St. Joe contends that this is immaterial, for the deed from Florida East Coast Hotel Corporation to St. Joe on January 10, 1944, could constitute the root of title even though this conveyance may be classified as a wild deed. Florida East Coast Hotel Corporation bulk-headed and filled a portion of the property in question in 1920, but left a yacht basin. The deed to St. Joe conveyed all of the lands involved and, after 1944, St. Joe filled and bulkheaded the yacht basin. We are asked to hold, without equivocation, that a wild deed may constitute a root of title. We so hold.

The city argues that a wild deed is void and passes no interest whatsoever in the land. This being so, the city contends that a wild deed cannot be the foundation for a vested estate that would fall under the protection of the Act. The city states that the Act requires that there be a “root of title” which involves a “title transaction.” A “title transaction” is defined by Florida Statutes, Section 712.01(3) as one which affects title. The city contends that a wild deed does not affect title.

This court, as well as the First, Second and Fourth District Courts of Appeal have made it clear that the Marketable Record Title Act deviates from common law and prior statutes and, by dicta, have said that a wild deed, properly executed and recorded, may establish a new and valid title after 30 years. Marshall v. Hollywood, supra; Whaley v. Wortring, supra; Wilson v. Kelley, supra.

This court in ITT Rayonier, Inc., v. Wadsworth, 346 So.2d 1004 (Fla.1977) rejected the argument that only a valid deed could act as a root of title. In this decision the terms “root of title” and “title transaction” were construed as follows:

“. .It should be obvious that the deed ‘purports’ to create or transfer an estate. Purport is defined in Webster’s 3d New International Dictionary, unabridged (1962), as ‘profess outwardly: have the often specious appearance of being.’ Certainly the Legislature intended the word ‘purport’ to have its accepted meaning. The 1937 deed meets that meaning.
“The deed ‘affects title’ and, in turn, is a title transaction as those terms have been construed in Florida. In Marshall v. Hollywood, Inc., 224 So.2d 743 (Fla. 4th DCA 1969), the Fourth District Court, speaking through Judge Reed, stated at page 749:
‘The word “affecting” as it is used in the second sentence of Section 712.02 in the clause “affecting the title to the land” does not carry the narrow meaning of “changing or altering”. The word is used in the broader sense meaning “concerning” or “producing an effect upon”. In this broad sense, even a void instrument of record “affects” land titles by casting a cloud or doubt thereon. Clements v. Henderson, 1915, 70 Fla. 260, 70 So. 439; Brown v. Solary, 1896, 37 Fla. 102, 19 So. 161’.” 346 So.2d at 1010.

In this case it appeared that Wadsworth, Sr., died in 1930 possessed of homestead property and survived by his widow and four children. The statute governing the descent of homestead provided that the surviving spouse would receive a life estate in the homestead property subject to vested remainders in any children. In 1937 Mrs. Wadsworth, the surviving spouse, executed a deed conveying the entire fee simple to herself and her son as tenants in common. In 1942 Mrs. Wadsworth and her son conveyed the property to Rayonier. Rayonier claimed a Marketable Record Title free and clear of the children’s vested remainder since that interest arose prior to the 1937 root of title.

The children argued that Florida Statutes, Section 712.03(1) preserves estates, interests, easements, and use restrictions disclosed by and defects inherent in the muni-ments of title on which the estate is based, beginning with the root of title. The children said that this statute preserved their interest because the 1937 deed had two inherent defects: 1) it conveyed their remainder interest and, 2) it conveyed property from Mrs. Wadsworth to herself. These arguments were rejected because the term “defects inherent in the muniments of title” do not refer to defects or failures in the transmission of title, but refer to defects in the makeup or constitution of the deed on which the transmission of title depends. The children’s arguments were geared to defects in the transmission and there was nothing on the face of the deed to indicate that it conveyed the children’s remainder interest, so those interests were not saved from extinguishment.

The 1944 deed to St. Joe purported to create an estate and qualified as a “root of title.” The city gains no help from the provisions of Florida Statutes, Section 712.-03(1) because there was nothing on the face of the deed to indicate that it conveyed any interest of the city. This court made it clear that Florida Statutes, Section 712.-03(1) refers only to defects in the makeup of the deed when we said:

“Section 712.03, Florida Statutes, provides that marketable record title will not extinguish six categories of rights that predate the root of title. The first of them, found in subsection (1), is ‘estates or interests, easements and use restrictions disclosed by and defects inherent in the muniments of title on which said estate is based beginning with the root of title.’ The children argue that their remainder interests are within the first category because the 1937 deed has two inherent defects: (1) it conveyed their remainder interests and (2) it conveyed property from Lotta to herself. The phrasing of their argument shows a misunderstanding of the statute. As the Fourth District Court of Appeal stated in Marshall:
‘The terms “defects inherent in the muniments of title” do not refer to defects or failures in the transmission of title, as the plaintiffs argument suggests, but refer to defects in the make up or constitution of the deed or other muniments of title on which such transmission depends’.” 224 So.2d [743] at 751.
“The face of the deed does not reflect the defect of a conveyance from Lotta to herself.” ITT Rayonier, Inc., v. Wadsworth, supra, at 1010.

The 1944 deed to St. Joe does not reflect that it was a wild deed nor does it appear that there is any defect in the makeup of the deed. This wild deed may properly constitute a “root of title.”

The city also implies that the Marketable Record Title Act operates as a means whereby people can steal land. Florida Statutes, Section 712.03(6) excepts the rights of any person in whose name the land has been assessed on county tax rolls for a period of three years. This section of the statute requires that owners of land pay their taxes and by doing so, would stop any party from pirating their land. Moreover, an interest in land can be preserved by any party by filing a notice within the 30-year period subsequent to the root of title in accordance with Section 712.05, Florida Statutes.

The court in Wilson v. Kelly, supra, also noted the safeguards which would prevent an interloping deed from cutting off another person’s deserving interest in favor of an undeserving person. In this case the court said:

“For those who are concerned with the likelihood that the Act will allow an interloping deed to cut off another person’s deserving interest in favor of an undeserving person, there are safeguards in the Act to prevent this from happening. A claimant will not be cut off if he has been a party to any title transaction recorded within a period of not less than thirty years or if he files a simple notice prescribed by the Act during the time allowed for this purpose. He will not be cut off if he remains in possession or if the land is assessed to him on the tax roll. Even if it is no longer assessed to him he is protected if it was assessed to him at any time during the preceding three years. But if he has been a party to no title transaction recorded for at least thirty years during which time he has also failed to file the notice, and if for more than three years he has allowed the land to be assessed for taxation to someone else, and if neither he nor any person claiming under him is in possession of the land, it would not seem unjust that his claim should be subordinate to another person’s claim that is based upon a chain of title going back to an instrument or court proceeding that has been recorded at least thirty years, and that ‘purports to create or transfer the estate’ claimed by the second person. In the public interest of simplifying and facilitating land title transactions, it does not seem unreasonable for the legislature to create a presumption that one who is negligent in claiming his land has abandoned his claim.” 226 So.2d at 127.

In summary we point out that the question of whether the Marketable Record Title Act can be utilized to divest the state of sovereign land is not considered, as it is not an issue in the case. By this opinion we hold:

1) The Marketable Record Title Act is constitutional;

2) The city is not an agency of the state and does not stand in the place of the state in the application of the provisions of the Marketable Record Title Act;

3) A wild or interloping deed may constitute a root of title.

The decision of the District Court of Appeal, as well as the opinion expressing the views of the court, are approved. The writ of certiorari is discharged.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Andy MARTIN, Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF LEE COUNTY, Florida, and Frank Wanica, Sheriff of Lee County, Florida, Appellees.
    No. 52522.
    Supreme Court of Florida.
    Oct. 5, 1978.
    Rehearing Denied Dec. 8, 1978.
    Steven Carta of Smith & Carta, Fort Myers, for appellant
    Julian Clarkson of Holland & Knight, Fort Myers, and James G. Yaeger, County Atty. and Kenneth A. Jones, Asst. County Atty., Fort Myers, for appellees.
   PER CURIAM.

We have jurisdiction in this case regarding the constitutionality of a county ordinance prohibiting “topless” dancing because the First Amendment to the Constitution of the United States was construed. Article V, Section 3(b)(1), Florida Constitution.

Because we interpret the opinion of the district court to apply only to the scant facts of this record, we adopt that court’s opinion, which is reported at 348 So.2d 916 (Fla.2d DCA 1977).

Accordingly, the decision of the Second District Court of Appeal is affirmed.

It is so ordered.

ENGLAND, C. J, and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., dissents.


author: BOYD, Justice.

text:
    FIRST AMENDMENT FOUNDATION OF FLORIDA, INC., Appellant, v. STATE of Florida, Appellee.
    No. 49745.
    Supreme Court of Florida.
    Oct. 12, 1978.
    Rehearing Denied Dec. 12, 1978.

      David A. Demers of the Law Offices of Carreiro, Brawley, Demers & Demers, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOYD, Justice.

We are presented with an appeal from a judgment and sentence of the County Court for Pinellas County. As the trial court passed on the validity of a state statute, we have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

After entering pleas of nolo contendere, appellant First Amendment Foundation of Florida, Inc., was convicted, in a number of cases consolidated at the trial court level for purposes of judgment and sentence, of distributing obscene material in violation of Section 847.07, Florida Statutes (1975). Each case was initiated by an information charging one or more violations. With some variation as to the precise conduct alleged to have been depicted, each count of each information alleged that on a certain date the appellant exhibited a certain motion picture film,

knowing the obscene nature thereof, said film considered as a whole, applying contemporary community standards, having its predominant appeal to the prurient interest, being utterly without redeeming social value, and going substantially beyond the customary limits of candor in representing nudity and sexual conduct in that said film graphically depicts and shows nude male and female persons actually engaging in ultimate sexual acts including but not limited to sexual intercourse, masturbation, fellatio, eunnilingus and ejaculation, contrary to Chapter 847.-07, Florida Statutes, and against the peace and dignity of the State of Florida.

The appellant filed motions to dismiss each of the informations on the ground that Section 847.07 is impermissibly vague, giving insufficient definition of what is proscribed thereby denying appellant due process of law.

In connection with each count of each information the state filed a motion for an order to produce the subject film, pursuant to Section 847.08, Florida Statutes (1975). Each of these motions was accompanied by the affidavit of a police officer stating that he viewed the film and giving a detailed narrative and description of the contents of the film and the conduct depicted or represented therein. It was on the basis of these detailed affidavits relating to the contents of each film that each production order was entered. There is no indication that appellant was prevented from retaining copies, of the films ordered produced, for continued exhibition. Appellant objected to the motions for production orders, and moved to quash them once issued, on the ground that Section 847.08 is unconstitutional in that it authorizes an unreasonable seizure without a prior probable cause determination by a neutral magistrate.

In the course of the proceedings that were had prior to the entry of the pleas of no contest, the state issued subpoenas for the taking of depositions directed to appellant’s accountant and to the appellant’s lawyer’s secretary. The secretary was also the appellant’s resident agent for service of process. Motions to quash these subpoenas were denied after hearing. The issues of privileged communication raised in these motions were dealt with further in hearings held on the state’s motion to compel the testimony of the appellant’s accountant. The privilege which the accountant and his client, the appellant, invoked was at that time provided for by Section 473.141, Florida Statutes (1975). The county court granted the state’s motion and the accountant’s deposition was taken in a deposition proceeding held before the county court judge with counsel for the witness and counsel for appellant present. The judge ruled on objections as they were made and ordered the witness to respond when he deemed it proper. The witness was compelled to answer certain questions that were ruled proper as not invading the area of the statutory privilege.

On May 19, 1976, appellant moved for permission to change its plea in each of the cases from not guilty to nolo contendere. The motion was granted. Appellant’s counsel orally reserved the right to appeal all adverse rulings that had been made by the court. Appellant was adjudicated guilty on twenty-nine counts of distributing obscene material and was fined $1500 on each count. This appeal followed.

I.

Appellant contends that Section 847.07 fails to comply with the standards laid down in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), for definiteness in criminal statutes proscribing obscene publications. In Miller the test for the constitutionality of an obscenity law was stated as follows:

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. at 24, 93 S.Ct. at 2615 (citations omitted).

The third component of this test is of course inoperative under Section 847.07 which utilizes the stricter standard that the work, to be deemed obscene, must be “utterly without redeeming social value.” The second component is the one that is crucial to our inquiry here. The United States Supreme Court made clear in Miller what its concern was:

State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. 413 U.S. at 24, 93 S.Ct. at 2614 (citations omitted).

In State v. Aiuppa, 298 So.2d 391 (Fla.1974), we considered the constitutionality of Section 847.07 under the standards of Miller. That is, we were faced with the question whether the statute specifically defines conduct the depiction or description of which shall be deemed to be obscene. We construed the statutory language — defining obscenity in terms of appeal to prurient interest — to refer to the depiction of certain conduct. And we held that the specific acts of sexual conduct the depiction of which was proscribed by the statute included intercourse, cunnilingus, sodomy and fellatio.

The Aiuppa decision stands for the further proposition that authoritative constructions that amplify an anti-obscenity statute that are in force (published) at the time of an obscenity offense apply to define obscenity — for purposes of notice of what is proscribed and for purposes of instructing a jury — so that the judicial constructions may be considered in determining whether the statute meets Miller standards. This principle is also stated in Rhodes v. State, 283 So.2d 351 (Fla.1973).

The Aiuppa rule of applicability of authoritative constructions in force at the time of the offense is applicable here. Aiuppa itself provides such an amplifying construction and was in force at the time of the commission of the obscenity offenses at issue now. The appellant clearly was put on notice that the films it exhibited depicted conduct reached by the statute. The types of ultimate sexual acts “specifically defined by the applicable state law, as written or authoritatively construed,” Miller, above, include precisely those alleged in the informations to have been depicted in these films. The trial court judge was correct in upholding the statute against appellant’s vagueness challenge.

II.

Section 847.08, Florida Statutes (1975), provides that after the filing of an indictment, information or “trial affidavit” charging a violation of Section 847.07, the state may apply to the court for

an order directing the defendant or his principal agent or bailee or other like person to produce the allegedly obscene materials at a time and place so designated by the court for the purpose of determining whether there is probable cause to believe said material is obscene.

Appellant contends that Section 847.08 is unconstitutional in that it authorizes the seizure of property without a warrant based on probable cause. A finding by a neutral magistrate that there is probable cause to believe materials to be obscene is necessary, appellant correctly argues, in order to avoid prior restraint on expression protected by the First Amendment. It is the Fourth Amendment that protects persons against unreasonable seizures, but prior restraint of the right of expression “calls for a higher hurdle in the evaluation of reasonableness.” Roaden v. Kentucky, 413 U.S. 496, 504, 93 S.Ct. 2796, 2801, 37 L.Ed.2d 757, 765 (1973). Appellant’s position is that the authorized procedure does not meet the constitutional standard governing such situations announced in Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). It was held there that a seizure of a film without a prior adversary hearing, for the purpose of preserving it as evidence, was permissible if executed under warrant issued after a probable cause determination by a neutral magistrate provided that after-wards a prompt judicial determination of obscenity was available and provided that copying was permitted if necessary to allow continued exhibition pending the judicial determination.

Appellant argues that since Section 847.08 states that the production order that is authorized is for the purpose of determining probable cause, it is therefore by definition not based upon probable cause. We observe, however, that the motions for the production orders that were issued in this case were accompanied by affidavits detailing the contents of the films. These affidavits described not only the conduct depicted, but gave a detailed narrative of the films in their entirety, thus enabling the court to determine the probable offensiveness of the presentation and the likelihood of the presence of redeeming social value. After the production order is issued, the statute provides for a further adversary hearing on the probable cause issue. Although the statute states that the production order is for the purpose of determining probable cause, the procedure followed in these cases assured that the orders themselves were based upon probable cause. A neutral, detached magistrate issued the orders after presentation to him of affidavits detailing the contents of the films. We construe the statute to require this procedure and hold that as so construed the statute complies with the standards of Heller. The production order, like a warrant for search or seizure, must be based on probable cause. We hold that these orders were so based. The trial court judge was correct in his rulings upholding the statute against appellant’s First and Fourth Amendment attack.

III.

Appellant also contends that the trial court erred in denying its motion to quash the subpoenas directed to appellant’s accountant and appellant’s attorney’s secretary, and in granting the state’s motion to compel. There is nothing in the record to show that any testimony was taken from the secretary. Although a Florida statute in effect at the time forbade compulsory testimony from accountants, Section 473.-141, above, the trial court permitted the accountant’s deposition to be taken in camera, holding that a properly limited examination was permissible. There is no basis upon which to conclude that this testimony was absolutely crucial to the state’s case. Inasmuch as the issue is not “dispositive” of the case, it is not proper for consideration on appeal from a nolo contendere plea. Tiller v. State, 330 So.2d 792 (Fla. 1st DCA 1976).

The judgment and sentence appealed from are affirmed.

It is so ordered.

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

ADKINS, J., concurs in result only.

      . The offense and the meaning of “obscene materials” are defined in the first two subsections:
      (1) A person commits the offense of distributing obscene materials when, knowing the obscene nature thereof, he sells, rents, leases, advertises, publishes, exhibits, or otherwise disseminates to any person any obscene material of any description, offers to do so, or possesses such material with the intent so to do.
      (2) Considered as a whole and applying community standards, material is obscene if:
      (a) Its predominant appeal is to prurient interest; that is, a shameful or morbid interest in nudity, sex, or excretion;
      (b) It is utterly without redeeming social value; and
      (c) In addition, it goes substantially beyond customary limits of candor in describing or representing such matters.


author: ENGLAND, Chief Justice, and OVER-TON, Justice. HATCHETT, Justice, BOYD, Justice,

text:
    FLORIDA BOARD OF BAR EXAMINERS. Re: G. W. L.
    No. 52802.
    Supreme Court of Florida.
    Oct. 26, 1978.

      Richard T. Earle, Jr. of Earle & Earle, St. Petersburg, for petitioner.
    C. Graham Carothers, Tallahassee, for the Board.
   ENGLAND, Chief Justice, and OVER-TON, Justice.

The petitioner, G. W. L., applied for admission to The Florida Bar and received a passing score on the bar examination. The Florida Board of Bar Examiners, acting as our agent for the admission process, undertook an investigation into his character, fitness, and general qualifications to practice law in the state. The Board refused to recommend G. W. L. for admission to the Bar, and he now petitions this Court for admission. We allowed argument because this petition raises a matter of general importance in the admission process, specifically the effect of a bankruptcy petition on a Bar applicant’s fitness to practice law. We agree with the recommendation of the Board and decline to admit the petitioner on the facts and circumstances in the record in this case, but this affirmance is without prejudice and the petitioner may seek a further hearing to offer additional evidence of his present good moral character.

To understand the ramifications of our decision today, it is necessary to recount the events surrounding the petitioner’s discharge in bankruptcy. In doing so, it must be with the recognition that it is not the act of filing for bankruptcy but the circumstances surrounding this particular bankruptcy application that demonstrate a lack of good moral character and justify the Board’s decision.

G. W. L. completed his secondary education in the northeast and attended an eastern university from September, 1969, until June, 1973. During that period he received approximately $1,900 in 3V2% interest student loans from the university, which amount was to be repaid within ten years after the termination of his status as a full-time student. In September, 1973, the petitioner entered law school. To finance his legal education, he borrowed approximately $2,500 per year from a bank under a government-sponsored 7% interest student loan program. Similar ten-year repayment terms were agreed upon. When he received his Juris Doctor degree in May, 1976, G. W. L.’s financial obligations totaled $9,893. Initial payments were scheduled to begin nine months after graduation with the bulk of the payments not due for three years. There were no exceptional financial problems or identified misfortunes, and the obligations appeared normal for any student attending undergraduate and graduate educational programs on student loans.

For some months prior to his graduation, G. W. L. attempted unsuccessfully to find legal employment locally. On May 19,1976, he simultaneously filed with the Board a late student registration, and an application to take the bar examination in Florida. He also arranged several job interviews in southwest Florida where his parents reside. His initial efforts to secure employment in Florida, however, proved fruitless. On May 20, 1976, three days prior to his graduation from law school, the petitioner executed a voluntary petition for bankruptcy which he filed in the appropriate United States District Court on May 26, 1976. With the exception of one debt in the amount of $8.01, none of the debts listed in his petition were due at the time of filing.

In June, 1976, G. W. L. concluded his personal participation in the bankruptcy proceedings and moved to Florida. He made informal arrangements with the court-appointed trustee to defer action on his petition for discharge for six months, allegedly with the understanding that if he could find a job and begin repaying his creditors he would voluntarily withdraw the bankruptcy petition. Nevertheless, the petition was granted on December 20, 1976, and by order of the bankruptcy court the petitioner was adjudged bankrupt and released from all his debts. Coincidentally, G. W. L. secured employment as a law clerk in a law office in Florida on December 20, 1976, at a wage of $70 per week.

G. W. L. passed the July, 1976, Florida bar examination and the customary background investigation was undertaken. During the course of the investigation, the Board discovered the bankruptcy petition and undertook a more extensive investigation of his activities in connection with that action. By letter of December 6, 1976, the Board notified the petitioner that it wished to inquire into the circumstances surrounding the filing of his voluntary petition for bankruptcy and requested that he appear before the Board in regard to that matter. An informal hearing was held on January 14, 1977, at which G. W. L. appeared, answered questions, and offered his explanation of the matter.

On January 19, the Board notified G. W. L. that it had decided to defer final consideration of his application to permit further investigation. Immediately following the hearing G. W. L. made arrangements for repayment of the debts discharged by the bankruptcy order of December 20, 1976. On February 20, specifications were drawn and served on the petitioner, advising him of the Board’s intent to base its findings and conclusions on the testimony elicited at the informal hearing and informing him of his right to a formal hearing at which he would be entitled to be represented by counsel, to present evidence, to question witnesses, and, if necessary, to use the Board’s subpoena power to secure the attendance of witnesses. The petitioner responded to the specifications by letter dated March 8, 1977, in which he expressly declined a formal hearing and agreed to a determination of his application on the basis of facts then before the Board. The letter also advised the Board that he had secured employment as a law clerk and had voluntarily resurrected his discharged debts.

Within thirty days after receiving the letter, the Board recommended against petitioner’s admission to the practice of law. After rejecting a request for reconsideration, the Board notified G. W. L. of its action by letter dated September 14, 1977. On November 14, the petitioner filed his petition for admission with this Court. The Board submitted a response to the petition on December 16, 1977, and we heard arguments on the matter in chambers on February 6, 1978.

The critical inquiry in this case is whether the manner in which the petitioner voluntarily secured a discharge of his debts in bankruptcy justifies a finding of a lack of good moral character sufficient to make him unfit to practice law in Florida. The Board found that his activities proved him unfit to practice law, based on the following indicia:

(1) The petitioner had worked each summer during undergraduate school and two of the three summers during law school. At the time he prepared his bankruptcy petition, he had not fully tested the Florida job market either as to law-related employment or other jobs commensurate with skills he had earlier developed.

(2) The petitioner explained to the Board that his decision to consider practice in Florida was made after April, 1976, when his car broke down and was sold. This explanation was contradicted by evidence that he considered entering the practice of law in Florida at least as early as February, 1976, when he wrote to the Board for bar admission forms. His parents had lived in Florida for some years before that date.

(3) The petitioner suggested that his motivation for bankruptcy was in part pressure from creditors, particularly in the form of certain “dunning” letters that he allegedly received from bank lenders and from the newspaper with which he had advertised the sale of his car. His debt to the newspaper in the amount of $8.01 was incurred in April, 1976, one month before his bankruptcy petition was filed. The petitioner could not produce copies of the dunning correspondence to which he referred, indicating that he had destroyed those received from lending institutions. The Board found his claim of being driven to bankruptcy by “pressure” from his $8 one-month-old debt or his unmatured student loan obligations unbelievable.

The petitioner argues for admission essentially on two grounds, one legal and the other factual. First, he asserts that bankruptcy is a statutory right, available.to all persons in this country not only for the benefit of the bankrupt but also for the benefit of the general public. Therefore, he claims that a bar applicant’s exercise of the statutory right cannot be said to reflect adversely on the character or fitness of the applicant. Second, he asserts that his decision to act before his significant debts became due was neither a fraud on his creditors nor otherwise morally reprehensible. Although the petitioner concedes that it would have demonstrated a lack of the requisite character and fitness to have contracted for the debts with the concurrent intention to file for bankruptcy and avoid their repayment, he argues that neither the Board’s charges nor the record shows that he had any such preconceived intent.

The Board’s position on the petitioner’s admission application rests on the premise that while the filing of a petition in bankruptcy is lawful and does not of itself demonstrate a lack of fitness, conduct that is not unlawful may nevertheless fall short of the standards of moral character which must be met before one is qualified for admission to the bar. The Board recommends that this Court follow the view of the Oregon Supreme Court that: “Legality is beside the point. The issue is applicant’s sense of ethics.” Application of Alpert, 269 Or. 508, 514, 525 P.2d 1042, 1045 (1974). It insists that its rejection of the petitioner’s application was based on the circumstances surrounding his filing the bankruptcy petition rather than on the election to file itself. As factual support for its conclusion, the Board points out that the petitioner formed his intent to obtain a discharge before graduating from law school, long before the major debts were due, and apparently because (according to his testimony) he “found it an unfortunate but practical way of getting out of this awful situation of having no money and an awful lot of debts. ...”

The Court, under its constitutional authority to “regulate the admission of persons to the practice of law,” has the authority to require proficiency in the law and good moral character before it admits an applicant to practice before the courts of this state. The sole purpose of these requirements is to protect the public. The petitioner in the instant case had demonstrated his proficiency by passing the required bar examination. The issue before us is whether he has established his good moral character, taking into consideration the facts and circumstances under which he sought bankruptcy.

The term “good moral character” has no absolute definition. See Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957). One definition would require that only conduct or acts which historically constitute an act of moral turpitude justify a finding of a lack of good moral character. This Court in State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 611, 146 So. 660, 661 (1933), defined moral turpitude as follows: “Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . .” Recently we expressed the view that issuing a worthless check without the intent to defraud was not an offense of moral turpitude but it was unethical conduct for a member of the bar. The Florida Bar v. Davis, 361 So.2d 159 (Fla.1978). Such conduct was the subject of bar discipline in the Davis case, and the lawyer was suspended for twelve months.

In our view, a finding of a lack of “good moral character” should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual’s honesty, fairness, and respect for the rights of others and for the laws of the state and nation. See Konigsberg, supra.

As we noted in Florida Board of Bar Examiners Re Eimers, 358 So.2d 7 (Fla.1978), the nature of the practice of law provides the unscrupulous attorney with frequent opportunities to defraud the client or obstruct the judicial process. It is our constitutional responsibility to protect the public by taking necessary action to ensure that the individuals who are admitted to practice law will be honest and fair and will not thwart the administration of justice. In our view, a definition of good moral character which limits an adverse finding to those acts which constitute an offense evincing moral turpitude is inadequate because, as we have held in bar disciplinary matters, it would not sufficiently protect the public interest. The Florida Bar v. Davis, supra. The inquiry into good moral character which emphasizes honesty, fairness, and respect for the rights of others and for the laws of this state and nation is a proper and suitable standard for those who desire to be an integral part of the administration of justice in the courts of this state. We recognize, as we did in Eim-ers, supra, that the standard of conduct required of an applicant for admission to the bar must have a rational connection to the applicant’s fitness to practice law, and the standard must be applied with that limitation in mind or the term “good moral character” could become “a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.” Florida Board of Bar Examiners Re Eimers, 358 So.2d 7, 9 (Fla.1978) (quoting Konigsberg v. State Bar of California, 353 U.S. 252, 262-63, 77 S.Ct. 722, 728, 1 L.Ed.2d 810, 819 (1957)).

We must now determine two issues. First, are the facts in this case such that a reasonable man would have substantial doubts about the petitioner’s honesty, fairness, and respect for the rights of others and for the laws of the state and nation? Second, is the conduct involved in this case rationally connected to the petitioner’s fitness to practice law?

In our view, both questions must be answered in the affirmative. We find that the Board had ample record evidence from which it could conclude that the principal motive of the petitioner in filing his petition for bankruptcy was to defeat creditors who had substantially funded seven years of educational training. Whether that motive was present as the debts were incurred or was formed toward the end of his law school training, the Board could fairly conclude from the petitioner’s own testimony and prior behavior that he exercised his legal right to be freed of debt by bankruptcy well before the first installments on his debt became due, with absolutely no regard for his moral responsibility to his creditors. The petitioner’s admittedly legal but unjustifiably precipitous action, initiated before he had obtained the results of the July bar examination, exhausted the job market, or given his creditors an opportunity to adjust repayment schedules, indicates a lack of the moral values upon which we have a right to insist for members of the legal profession in Florida. The petitioner’s course of conduct in these personal affairs raises serious questions concerning the propriety of his being a counselor to others in their legal affairs, and is rationally connected to his fitness to practice law.

The fundamental purposes of the federal bankruptcy act are to facilitate the rehabilitation of the bankrupt debtor and to provide a means for equitable distribution of the bankruptcy assets among his or her creditors. At an early date in the history of the act, it was construed to “relieve the honest debtor from the weight of indebtedness which has become oppressive, and to permit him to have a fresh start in business or commercial life, freed from the obligation and responsibilities which may have resulted from business misfortunes.” Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 176, 49 L.Ed. 390, 394 (1904). Although the discharge bars the underlying legal remedy for collecting a debt, the underlying moral obligation to repay the debt remains and in fact constitutes sufficient consideration to make a subsequent reaffirmation legally enforceable. Kesler v. Department of Public Safety, 369 U.S. 153, 170, 82 S.Ct. 807, 817, 7 L.Ed.2d 641, 653 (1962); Silva v. Robinson, 115 Fla. 830, 156 So. 280 (1934).

The record before us reflects that the petitioner suffered no unusual misfortune or financial catastrophe prior to his filing the bankruptcy petition. His position was no different than that of other students who used student loans to obtain and complete their education. Although he did not have employment at the time of his graduation and for six months thereafter, the student loans were not yet due and for the most part would not be due for at least a year. In our view, his filing of the bankruptcy petition showed a disregard not only for the rights of his creditors but also for future student loan applicants. The filing of the bankruptcy petition was not illegal, but in our view it was done in such a morally reprehensible fashion that it directly affects his fitness to practice law.

To foreclose any misconstruction of this decision, we must emphasize that this ruling should not be interpreted to approve any general principle concerning bankruptcies nor to hold that the securing of a discharge in bankruptcy is an act inherently requiring the denial of admission to the bar. We further do not wish this decision to be construed to hold that any comparable exercise of a clear legal right will necessarily imperil bar admission.

In making our final determination in this case, we cannot ignore the fact that the action of this individual was not unusual conduct in his graduation year. In 1976 there were 8,461 bankruptcy petitions filed by college graduates in order to eliminate legal responsibility for student loans. The number was sufficient to move Congress to amend the bankruptcy act to limit the circumstances under which an adjudication of bankruptcy will operate to discharge federally insured student loan obligations. 20 U.S.C.A. § 1087-3 (1978). See State v. Wilkes, 41 N.Y.2d 655, 394 N.Y.S.2d 849, 363 N.E.2d 555 (1977). Student loan bankruptcies have resulted in litigation elsewhere. E. g., Girardier v. Webster College, 563 F.2d 1267 (8th Cir. 1977); Handsome v. Rutgers University, 445 F.Supp. 1362 (D.N.J.1978). A concurring judge in the Girardier case expressed his view on the “fresh-start” purpose of the bankruptcy act as it pertains to student loan bankruptcies thusly: “[AJppellants have obtained far more than the fresh start contemplated by the Bankruptcy Act — they have obtained a head start because each has secured something of value that cannot be lost or taken away and which will give each appellant a continuing, lifelong economic benefit. . . .” 563 F.2d at 1278.

We find the conduct of the petitioner in the instant case, although not illegal at the time, morally reprehensible. While we recognize that a significant segment of his generation behaved similarly, in our minds his conduct was clearly wrong. There may be justification for the assertion tjiat the moralities of this exercise of a clear legal right were not fully considered or understood by the young people who undertook these student loan bankruptcies. Many have now found their future professional careers tarnished or jeopardized. In bar discipline or admission matters, we customarily take into account the youth and inexperience of attorneys in considering the appropriate action and we believe we should do so in this instance.

G. W. L. waived his opportunity for a formal hearing on his moral fitness for bar admission. Therefore, he did not present other evidence of good moral character to the Board to offset the lack of good moral character indicated by his conduct leading up to the bankruptcy discharge. At a future hearing, the petitioner may be able to present evidence of good moral character to offset the circumstances now in the record.

Taking all of these factors into account, we now approve the finding of the Board of Bar Examiners, without prejudice to G. W. L. to apply for a formal hearing before the Board to present evidence of his present good moral character.

It is so ordered.

SUNDBERG and ALDERMAN, JJ„ concur.

HATCHETT, J., concurs in part and dissents in part with an opinion.

BOYD, J., dissents with an opinion, with which ADKINS, J., concurs.

HATCHETT, Justice,

concurring in part, dissenting in part.

I concur with the majority in returning this case to the Board of Bar Examiners for further action in accord with the rule announced today. That rule is that “the securing of a discharge in bankruptcy is [not] an act inherently requiring the denial of admission to the Bar.”

Because there may be other cases involving applicants who have filed bankruptcy petitions, I find it important to more carefully delineate the scope of this court’s review where bankruptcy is a factor. In doing so, I dissent to that portion of the opinion which finds that the applicant’s activities proved him unfit. The majority’s suggestion that a prospective lawyer seeking release from bankruptcy must consider future employment prospects before filing his petition places a “chilling” effect on his exercise of his right to be “freed from debt” and invades areas exclusively reserved for federal action under Article I, Section 8, of the Constitution of the United States. The fact that the applicant failed to produce (or chose not to produce) written evidence of correspondence at an informal hearing proves nothing. The Referee in bankruptcy found sufficient evidence to grant the applicant’s petition in bankruptcy. This court is prohibited from further investigation into that finding.

Requesting Bar admission forms in February is insufficient proof that one had already made a decision to practice law in Florida in April.

While I disapprove of the course of conduct followed by this applicant and hundreds of other students who used this lawful route to avoid repayment of loans, I do not think we should impermissibly stretch the boundaries of our jurisdiction to accommodate this special situation.

BOYD, Justice,

dissenting.

The Court holds that, alone, voluntary discharge of debts in bankruptcy is not sufficient to reject a candidate for admission to The Florida Bar. And it maintains that G. W. L. is not rejected simply because he filed for discharge in bankruptcy. But, the Board of Bar Examiners’ refusal to recommend G. W. L.’s admission is upheld because the Court finds on the present state of the proceedings an indication of poor moral character and lack of fitness to practice law in view of G. W. L.’s conduct leading up to the proceedings in bankruptcy.

I am unable to draw the distinction the Court makes in this case. The bottom line of the Court’s decision is that G. W. L. may not be admitted now because of his avoidance of the repayment of federally insured student loans through his legal right to avail himself of the federal bankruptcy laws. Obviously, any American taxpayer is justified in resenting the use of the bankruptcy laws to avoid the indebtedness of federally insured student loans. But, to deny anyone admission on that basis presents for me two problems. The first one is it amounts to a denial of equal protection since the Board candidly admitted at oral argument that it does not consider voluntary bankruptcy by an out-of-state practitioner as a black mark on his fitness to practice when he seeks admission to The Florida Bar. For another, the decision is tantamount to disrespect for an act of the federal judicial system. Principles of comity demand that no adverse inferences be drawn from the federal decree of bankruptcy-

For the foregoing reasons I reluctantly dissent. I would admit G. W. L. to the Bar.

ADKINS, J., concurs.

      . Our authority to admit attorneys to practice in Florida derives from Article V, Section 15 of the Florida Constitution. The Board’s authority derives from the Rules of the Supreme Court Relating to Admissions to the Bar (1975 Revision), Article I, Section 2, 32 Fla.Stat.Ann. 273 (Supp.1978).

      . Fla.Sup.Ct.Bar Admiss.Rule, art. II, § 12.

      . Fla.Bd.Bar Exam. Rule I, § 1.

      . Fla.Sup.Ct.Bar Admiss. Rule, art. II, § 12.

      . Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230, 1235 (1934).

      . Fla.Sup.Ct.Bar Admiss.Rule, art. IV, § 19.

      . With respect to his undergraduate education, the petitioner testified: “I went to school for practically nothing out of my own pocket at [an eastern university].”

      . G. W. L. at one point claimed that his law-related employment overtures were not favorably received because his law school was new and unknown to Florida attorneys and that several prospective employers wanted to await his admission to the bar before hiring him. He has offered no explanation why, if that was the case, he did not withdraw his bankruptcy petition when, during the six-month “holding” period which he had arranged in the fall of 1976, he learned that he had passed the July bar examination.

      . Although not precisely germane to this proceeding, we agree with the petitioner that unfitness is demonstrated if it can be shown that an applicant formed an intent not to repay debts when the debts were incurred.


text:
    Douglas Ray MEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 47533.
    Supreme Court of Florida.
    Nov. 2, 1978.
    Certiorari Denied Nov. 27, 1978.
    See 99 S.Ct. 592.

      John F. Howard, Sebring, for appellant.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

On October 28,1976, this Court affirmed, inter alia, the conviction of appellant for murder in the first degree and the sentence of death imposed thereon by the Circuit Court for Taylor County, Florida. See Meeks v. State, 339 So.2d 186 (Fla.1976). Subsequent to our decision in that cause, however, the United States Supreme Court released its decision in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). This Court thereupon issued a Gardner inquiry to the sentencing court to determine whether the death sentence of appellant had been based upon the consideration of evidence which was not known to appellant or which he had no opportunity to explain or deny.

The response of the sentencing judge stated that the sentence of death was grounded, in part, on the psychiatric report of Dr. Carrera. This report contained statements purportedly made by appellant to the examining psychiatrist in which he admitted having agreed with his accomplice to the armed robbery, which culminated in the murder in issue, that witnesses to the robbery should be shot. The testimony adduced at appellant’s trial revealed that both he and his accomplice fired shots at two individuals who were present during the robbery, one of whom died from the shooting. Appellant, however, had contended that he had never intended to kill anyone. Although the report recited that appellant’s counsel was present during the examination which formed the basis for the report, the response of the trial judge to the Gardner inquiry stated that “[ijnsofar as the Court is now aware, [the report] has never been seen by counsel for the State or the defendant.”

On July 28,1977, following our receipt of the aforementioned response of the trial judge, this Court remanded the cause to him for an evidentiary hearing on resen-tencing only, pursuant to Gardner v. Florida, supra. During this evidentiary hearing appellant’s counsel acknowledged that he had, in fact, been present at the psychiatric examination during which appellant made the aforementioned incriminating statements. Appellant was then afforded an opportunity to rebut this portion of the report of Dr. Carrera but, instead, his testimony confirmed the accuracy of its contents.

The trial judge found no evidence to alter the decision arrived at by him at the time of the original sentencing and, accordingly, adhered to the sentence of death and his written findings of fact in support thereof.

Based upon the foregoing, this Court finds no violation of the Gardner'principle in that appellant has had access to and an opportunity to rebut all information relied upon by the trial judge in imposing the sentence of death. Therefore, the sentence of death reimposed upon appellant in this cause subsequent to the evidentiary hearing is affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and HATCHETT, JJ., concur.


author: HATCHETT, Justice.

text:
    James T. KIMBALL, d/b/a American Transportation, Petitioner, v. Paula F. HAWKINS, William T. Mayo, and Robert T. Mann, as and constituting the Florida Public Service Commission, Respondents.
    No. 53363.
    Supreme Court of Florida.
    Nov. 2, 1978.

      J. B. Curasi, Tallahassee, for petitioner.
    Prentice P. Pruitt, Legal Director, M. Robert Christ and Paul Sexton, Staff Counsels, Tallahassee, for respondents.
    Gregory A. Presnell of Akerman, Senter-fitt & Eidson, Orlando, for intervenor, Tam-iami Trail Tours, Inc. d/b/a Trailways.
    Ansley Watson, Jr. of Macfarlane, Ferguson, Allison & Kelly, Tampa, for intervenor, Gulf Coast Motor Line, Inc.
    John H. Wilbur and James F. Valenti, Jr. of Milam & Wilbur, Jacksonville, for inter-venor, Greyhound Lines, Inc.
   HATCHETT, Justice.

We have for review an order of the Florida Public Service Commission denying a motor carrier’s application for certificate of public convenience and necessity. Jurisdiction vests in this court under Article V, Section 3(b)(3), Florida Constitution. The Petition for Writ of Certiorari is denied.

Pursuant to application filed with the Public Service Commission, petitioner sought a certificate of public convenience and necessity authorizing (1) transportation of passengers from points on State Road 699 between St. Petersburg and Belleair Beach to dog tracks located in Tampa, St. Petersburg, and Sarasota, and (2) transportation of passengers to various tourist attractions, sporting, historical, and cultural events in Hillsborough and Pinellas Counties. The hearing examiner recommended that the Commission grant that portion of the authority sought pertaining to special operations to tourist attractions and other local events, finding: (1) petitioner was qualified to provide the limited transportation recommended to be authorized; (2) petitioner’s proposal to originate package tours to Bay area restaurants, nightclubs, and other attractions, would meet a valid need for local service; and (3) the grant of authority within the Bay area would not create competition with over the road package tours offered by protestants, or significantly detract from their existing charter business. In Order No. 13748, the Commission denied petitioner’s application in its entirety and found:

. public convenience and necessity does not require the grant of the Amended Application; that the Applicant has failed to prove he is qualified and possesses the necessary experience to provide the transportation proposed; that there is no proof to show that the existing certificate holders have not provided the transportation reasonably required by the Commission; that the grant of the authority requested would adversely affect the transportation facilities and transportation as a whole in the territory involved.

It is petitioner’s contention that by rejecting the hearing examiner’s findings without specifically stating that those findings were unsupported by competent, substantial evidence, the PSC departed from the essential requirements of law. In support of his position, petitioner relies on Section 120.57(1)(b)(9), Florida Statutes (1975), which provides in pertinent part as follows:

The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order [of the hearing examiner], but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

Respondent argues and we agree, that this section of the Administrative Procedure Act is inapplicable to this proceeding.

Section 120.57(1)(b)(9) states that an agency may not reject or modify the findings of fact contained in the “recommended order” of the hearing examiner without expressly stating that those findings are unsupported by competent substantial evidence. Section 120.52(13) defines “recommended order” as follows:

“Recommended order” means the official recommendation of a hearing officer assigned by the division to an agency for the final disposition of a proceeding under s. 120.57. (Emphasis added.)

“Division” means the Division of Administrative Hearings, Department of Administration. Section 120.52(5). Clearly, under these sections, the findings contained in a recommended order of an assigned hearing officer are entitled to great weight. They may not be rejected or modified unless they are unsupported by the evidence.

The factual findings of an examiner for the Public Service Commission, however, are not entitled to the same presumptive weight. Section 120.57(1)(a)(3) specifically provides:

A hearing officer assigned by the division shall conduct all hearings under this subsection, except for:
3. Hearings before . . . the Public Service Commission or its examiners.

Since Section 120.52(13) defines a recommended order as that of a hearing officer assigned by the Division for a proceeding under Section 120.57, the recommended order of an examiner employed by the PSC is not a recommended order contemplated by Section 120.52(13) and is therefore outside the requirements of Section 120.57(1)(b)(9). Under that section, an agency is bound by the examiner’s findings only when the examiner is assigned by the DOA.

Our reading of the general provisions of Section 120.57 are consistent with the more specific provisions of Section 323.-07, Florida Statutes (1975):

The Commission may prescribe qualifications for the appointment of hearing examiners and the procedure before hearing examiners, provided, however, that the commission shall not be bound by the findings of fact or conclusions of law of such hearing examiners, and shall have authority to take additional testimony and evidence, and to grant and hear oral arguments and rehearings in all cases. [Emphasis added.]

This section reflects the Legislature’s intent to extend to the Public Service Commission broad discretion in making its decisions. To the extent that Morgan Drive Away of Florida, Inc. v. Florida Public Service Commission, 313 So.2d 690 n. 2 (Fla.1975), holds otherwise, it is overruled.

The only test to be applied in reviewing the Commission’s order is whether it is supported by competent, substantial evidence. Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976); American Sightseeing Tours, Inc. v. Bevis, 326 So.2d 437 (Fla.1976); The Sentinel Star Express Co. v. The Florida Public Service Commission, 322 So.2d 503 (Fla.1975). Petitioner argues that this order is not so supported. In Fargo Van & Storage, Inc. v. Bevis, 314 So.2d 129 (Fla.1975), we held that a presumption of correctness attends the orders of the Public Service Commission and that the burden falls on the petitioner to prove the incorrectness of such orders. Since petitioner has failed to supply the record in this case to substantiate his claim that the order entered below was not supported by competent substantial evidence, we find that he has failed to meet his burden.

In light of our determination above, we need not decide whether the recommendation of the hearing examiner comports with the requirements of Section 323.03(3)(c), Florida Statutes (1975).

Accordingly, the order of the Public Service Commission denying petitioner’s application for a certificate of public convenience and necessity must stand. Petition for Writ of Certiorari is denied.

It is so ordered.

BOYD, Acting C. J., and OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

      . Subsequent to the enactment of the new Administrative Procedure Act, the Legislature substantially revised Ch. 323, Fla.Stat. See Ch. 77-434, Laws of Fla. Section 323.07 remained unchanged, further evidencing the Legislature’s intent to leave broad discretion in the PSC.

      . Section 323.03(3)(c) provides as follows:
      When application is made by a motor carrier for a certificate to operate as a common carrier in a territory or on a line already served by a certificate holder, the commission shall grant same only when the existing certificate holder or holders serving such territory fail to provide service and facilities which may reasonably be required by the commission.


text:
    In re FLORIDA RULES OF JUDICIAL ADMINISTRATION.
    No. 54525.
    Supreme Court of Florida.
    Nov. 2, 1978.
   PER CURIAM.

On June 30, 1978, this Court adopted the Florida Rules of Judicial Administration to take effect on 12:01 a. m., July 1,1978. On July 21, 1978, this Court entered an order suspending the effective date of Rule 2.070(f), Fla.R.Jud.Admin., until 12:01 a. m., January 1, 1979, to afford the court reporters of this state a reasonable transition period to comply with the provisions of the rule. This Court further invited the Florida Shorthand Reporters Association to submit clarifying language for uniform interpretation of the rule by all court reporters.

The following rule meets this Court’s purpose to require uniform court reporter transcripts for all judicial proceedings in and for all courts throughout the state and therefore replaces Rule 2.070(f), Fla.R.Jud.Admin., adopted by the Court on June 30, 1978, effective 12:01 a. m., January 1, 1979.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

RULE 2.070(F), FLORIDA RULES OF JUDICIAL ADMINISTRATION

(f) TRANSCRIPTS. Transcripts of all judicial proceedings, including depositions, shall be uniform in and for all courts throughout the state. The form size, spacing and method of typing transcripts are as follows:
(1) All proceedings shall be typed or printed on paper 8V2 inches by 11 inches in size, prepared for binding at the top or on the left side margin.
(2) All margins, measured from the edge of the paper, shall be no more than one inch from the top, no more than lVs inches at the left side and % inch at the right side for type or print of nine characters to the inch, and no more than 1% inches at the left side and V2 inch at the right side for type or print of ten characters to the inch.
(3) There shall be no fewer than 25 typed or printed lines per page and all typing or printing shall be double spaced, with all lines numbered 1 through 25, respectively, and with no more than a double space between paragraphs.
(4) Type size or print shall be pica or comparable type or print of no fewer than nine or ten characters to the inch.
(5) Colloquy material shall begin on the same line following the identification of the speaker, with no more than two spaces between the identification of the speaker and the commencement of the colloquy. The identification of the speaker in colloquy shall begin no more than ten spaces from the left margin, and carry-over colloquy shall be indented no more than five spaces from the left margin.
(6) Each question and answer shall begin on a separate line no more than five spaces from the left-hand margin with no more than five spaces from the “Q” or “A” to the text. Carry-over question and answer lines shall be brought to the left-hand margin.
(7) Quoted material shall begin no more than ten spaces from the left-hand margin with carry-over lines beginning no more than ten spaces from the left-hand margin.
(8) Indentations of no more than ten spaces may be utilized for paragraphs and all spaces on a line as herein provided shall be utilized unless the testimony of the speaker ends short of marginal requirements.
(9) One-line parentheticals may begin at any indentation. Parentheticals exceeding one line shall begin no more than ten spaces from the left-hand margin, with carry-over lines being returned to the left-hand margin.
(10)Individual volumes of a transcript, including depositions, shall be no more than 200 pages in length, inclusive of the index.


text:
    Philip A. HENDELES, etc., Petitioner, v. SANFORD AUTO AUCTION, INC., et al., Respondents.
    No. 52415.
    Supreme Court of Florida.
    Nov. 9, 1978.

      John M. Green, Jr. and Steven H. Gray of Green, Simmons, Green & Hightower, Oca-la, for petitioner.
    Andrew G. Pattillo, Jr. of Pattillo, Mac-Kay & McKeever, Ocala and Kenneth M. Beane, Casselberry, for Sanford Auto Auction, Inc.; and Randy R. Briggs and Edwin C. Cluster of Ayres, Cluster, Curry and McCall, Ocala, for Curtis Hulsey, respondents.
   PER CURIAM.

We granted certiorari in this case for conflict with Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977). The estate of Carol Hendeles Brady brought an action against respondents for wrongful death caused by an automobile accident. The complaint sought damages from parties alleged to have had ownership or possession of the offending automobile, who were also alleged to have entrusted it to the driver who caused the fatal accident. Each of the respondents as parties defendant denied ownership, possession, and entrustment as to itself. Thus the question of the unauthorized use of the car, along with the circumstances surrounding it — the key was left in the ignition — was placed in issue. It appears from the record that the trial judge’s order of summary judgment for the respondents was based on his belief that the evidence showed the car to have been stolen. The district court of appeal affirmed, per curiam, without opinion.

In Vining we held that the chain of causation between the statutory violation, under Section 316.097, Florida Statutes (1975), of one in charge of an automobile who leaves it standing unattended, unlocked, with the key in the ignition, and the injury caused by the operation of the automobile by a thief, is not necessarily broken by the intervening criminal act of the driver in stealing the car. The key to proximate cause, we said, is foreseeability. The question of the foreseeability of the intervening theft under the circumstances, and of the likelihood of subsequent danger to others, when reasonable persons might differ, is for the jury.

Vining had not been decided when this case was before the trial court. But it controls now since disposition of a case on appeal should be made in accord with the law in effect at the time of the appellate court’s decision rather than the law in effect at the time the judgment appealed was rendered. Florida East Coast Railway Co. v. Rouse, 194 So.2d 260 (Fla.1967).

There were disputed issues of material fact before the trial court. The factual questions either placed in issue by the pleadings or upon which evidence was adduced in the form of documents, affidavits, and depositions included, among possible others: which of the respondents had ownership, possession or control of the vehicle, or whether they had same jointly; whether the party or parties in control of the vehicle entrusted it, negligently or otherwise, to the driver; and whether it was foreseeable under the circumstances that the car might be stolen with resultant danger to others.

Therefore, the trial court erred in holding that there were no disputed issues of material fact. And our Vining decision, filed since the time of the trial court’s action, compels reversal of its implicit holding that, since it appeared the' car was driven without permission, there could be no liability on the part of the person or persons having ownership or control.

The decision of the district court is quashed and it is directed that the cause be remanded to the trial court for proceedings consistent with this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, HATCHETT and ALDERMAN, JJ., concur.


author: SUNDBERG, Justice.

text:
    Julia McCain LAMPKIN-ASAM, Petitioner, v. DISTRICT COURT OF APPEAL, Third District, Respondent.
    No. 54134.
    Supreme Court of Florida.
    Nov. 9, 1978.
    Tobias Simon, Miami, and Andrew A. Graham and Joan H. Bickerstaff, Cocoa, for petitioner.
    S. Harold Skolnick, Miami, for respondent.
   SUNDBERG, Justice.

By petition for writ of mandamus, we are asked to determine whether Florida Rule of Appellate Procedure 9.040(b), the 1977 revision of Florida Appellate Rule 2.1 a.(5)(d), alters the result reached in Southeast First National Bank of Miami v. Herin, 357 So.2d 716 (Fla.1978). In that case this Court held that the failure to file timely a notice of appeal in the lower tribunal deprived the appellate court of jurisdiction, even though the notice was filed in an otherwise timely fashion but in the district court of appeal. We have jurisdiction pursuant to Article V, Section 3(b)(5), Florida Constitution.

Petitioner was the plaintiff in a libel action in the Circuit Court of Dade County. On March 8, 1978, the trial court entered a final judgment in favor of one of the three defendants.

Thereafter, petitioner sought to appeal the adverse judgment by mailing a notice of appeal on April 5, 1978, two days prior to the thirty-day jurisdictional time limit. However, the notice was inadvertently sent to the District Court of Appeal, Third District, rather than to the Circuit Court of Dade County. Upon receipt the clerk of the district court mailed the notice to the clerk of the circuit court, who in turn filed the notice on April 14, 1978. On April 19, 1978, the District Court of Appeal, Third District, dismissed the appeal as not timely filed.

Petitioner maintains that Florida Rule of Appellate Procedure 9.040(b) supersedes Florida Appellate Rule 2.1 a.(5)(d) and the rationale underlying Southeast First National Bank v. Herin, supra, State ex rel. Diamond Berk Insurance Agency, Inc. v. Carroll, supra, and In re Estate of Hatcher, supra. It is argued that Rule 2.1 was broadened in the new rules so as to protect from dismissal notices which are filed in the wrong court.

We cannot agree with this contention. Florida Rule of Appellate Procedure 9.040(b) in no way altered the meaning or effect of Rule 2.1 a.(5)(d) or the cases construing it except as stated in the committee notes with respect to the results reached in Nellen v. State, 226 So.2d 354 (Fla.1st DCA 1969), and Engel v. City of North Miami, 115 So.2d 1 (Fla.1959), which have no application here. Hence Southeast First National Bank, Diamond Berk Insurance Agency, and Hatcher, supra, are dispositive of the issue before us.

The reasoning of the late Mr. Justice Drew in Southeast First National Bank, supra, ably demonstrates why Florida Rule of Appellate Procedure 9.040(b) is inapplicable to this case:

This rule was designed to permit the transfer of cases where the appeal is taken to the wrong appellate court. For instance, where an appeal in a bond validation proceeding is taken to the District Court of Appeal instead of to the Supreme Court, or where an appeal in a case where the death penalty has been imposed is taken to the District Court instead of the Supreme Court, or where an appeal where life imprisonment has been imposed is taken to this Court instead of the District Court. There are also instances where jurisdiction depends on whether the trial court directly passed on the validity or constitutionality of a statute. Where it is determined that the jurisdiction of the wrong court has been invoked, the rule, and the constitution, as amended, provide for such transfer. The necessity for such a rule was the result of the creation of the District Courts of Appeal in Revised Article V of the Florida Constitution in 1957, and the proscribed [sic] jurisdiction of the courts of the appellate system in the constitution.

357 So.2d at 717-718 (citations omitted). Inasmuch as the transfer provision of Florida Rule of Appellate Procedure 9.040(b) does not apply herein, the untimely filing of the notice of appeal constitutes a jurisdictional defect depriving the district court of jurisdiction to entertain petitioner’s appeal:

[T]he timely filing of a notice of appeal at the place required by the rules is essential to confer jurisdiction on the appellate court.
* * * * * *
A court has no power to act in the absence of a jurisdictional foundation for the exercise of the power.

State ex rel. Diamond Berk Insurance Agency, Inc. v. Carroll, 102 So.2d at 130, 131.

Had there been any intent by adoption of the new appellate rules to authorize indiscriminate filing of notices of appeal in any tribunal, Florida Rule of Appellate Procedure 9.110(b) would not provide that jurisdiction of an appellate court shall be invoked by filing a notice “with the clerk of the lower tribunal.”

There being no legal basis for the relief sought, the petition for writ of mandamus is hereby denied, and the order to show cause heretofore issued is quashed.

It is so ordered.

ADJKINS, Acting C. J., and BOYD, OVERTON, HATCHETT and ALDERMAN, JJ., concur.

      . The Court in Southeast reaffirmed the holdings in State ex rel. Diamond Berk Insurance Agency, Inc. v. Carroll, 102 So.2d 129 (Fla.1958), and In re Estate of Hatcher, 270 So.2d 45 (Fla. 1st DCA 1972).

      . Fla.R.App.P. 9.110(b).

      . Fla.R.App.P. 9.110(b) provides:
      “Jurisdiction of the court under this rule shall be invoked by filing two copies of a notice, accompanied by filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.”