text:
    Albert E. FORD, Appellant, v. Hazel F. BARNES and James Douglas Barnes, and Jackie Barnes, his wife, Appellees.
    No. 78-501.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    John A. Grant, Jr., of Peavyhouse, Giglio, Grant, Clark, Charlton & Mount, Tampa, for appellant.
    Henry T. Swann, III, and John R. Council of Brewton, Council & Swann, Dade City, for appellees.
   OTT, Judge.

We hold that it is no longer required in Florida that a contract to sell homestead property be executed in the presence of two subscribing witnesses.

In this case, a contract for the sale of homestead property contained the signature of only one witness attesting to the execution by the seller. The trial court held that there must be two witnesses. We reverse upon the authority of our recent holding in Carroll v. Dougherty, 355 So.2d 843 (Fla. 2d DCA 1978).

In Wickes Corp. v. Moxley, 342 So.2d 839 (Fla. 2d DCA 1977) this court discussed the constitutional provision governing the mortgage of a homestead:

[Ujnder the prior constitutional provisions a homestead could only be mortgaged by a “duly executed” instrument; and the courts uniformly held that “duly executed” under these provisions meant that such a mortgage had to be executed with the formality of a deed as required by § 689.01 . . . which . required the presence of two subscribing witnesses.

342 So.2d at 841. In Wickes the court pointed out that Art. X, § 4(c) of the 1968 Constitution omitted the words “duly executed”. The Wickes court reasoned that the deletion of this language — which had been the underpinning for the requirement that there be two witnesses on a homestead mortgage — indicated that two witnesses were no longer required to the execution of a mortgage on homestead property.

In Carroll v. Dougherty, supra, this court was faced with the issue whether “there is any longer a requirement that a contract to sell homestead property be executed in the presence of two subscribing witnesses” and, more specifically, whether “the rationale of Wickes is applicable to contracts to sell homestead realty.” 355 So.2d at 844. Judge Grimes reasoned that:

[B]y virtue of the deletion of the words “duly executed” from the new constitution, we are drawn to the inescapable conclusion that contracts to convey homestead realty fall into the same category as contracts to convey any other kind of real estate.

355 So.2d at 845. Continuing, Judge Grimes stated:

Since our reasoning in Wickes has now been adopted by the supreme court, we believe that court would now hold that the elimination of these words also dispensed with the requirement of two witnesses on a contract to convey homestead.

355 So.2d at 845.

We find no merit with appellant’s remaining contention that the trial court erred in finding that the subject property was homestead property.

Reversed and remanded.

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

      . Carroll v. Dougherty, supra, was decided after the trial court reached its decision.

      . The supreme court affirmed in Moxley v. Wickes Corp., 356 So.2d 785 (Fla.1978).


source: Caselaw Access Project

author: DANAHY, Judge.

license: Public Domain

text:
    Lawrence ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 78-653.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.

      Jack 0. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender, and David Wm. Boone, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant argues that the trial court erred in excluding witnesses which he wished to present at trial. After a careful consideration of the arguments on both sides, we have concluded that we must agree. Accordingly we reverse.

The state charged appellant with tampering with a witness and battery. At trial Otis Burdette testified that he met appellant in a Fort Meade service station. After they talked for a few moments, appellant, without provocation, hit him. Burdett also testified that at the time of this incident, he was scheduled to be a witness against appellant in an upcoming criminal trial. None of the other state witnesses testified that they saw appellant hit Burdette.

Appellant testified in his own behalf. He stated that Burdette cursed him, spit on him and shoved him. Appellant tried to retreat, but when Burdette attempted to hit him, he struck Burdette.

Just before appellant’s trial began, the prosecutor asked the court to exclude several defense witnesses because defense counsel had failed to disclose their names until that day. Defense counsel opposed this motion, saying that appellant had earlier informed him of the names but that he had not found out what they were going to say until late the previous Friday (trial began on Monday). The court then announced that it would not allow the witnesses to testify.

Later, during trial, defense counsel asked the court to reconsider its decision and allow some of the excluded witnesses to testify. Counsel said that in support of the defense’s position they would testify as to the events which occurred at the service station. Counsel also further explained his failure to give the witnesses’ names to the state by saying that someone in his office had put a memorandum containing the names in his file and that he had only recently noticed it. The court, however, reaffirmed its earlier ruling and refused to allow the witnesses to testify. Thereafter, the jury returned its verdict finding appellant guilty as charged.

In reversing the trial court, we need only turn to our decision in Smith v. State, 353 So.2d 205 (Fla. 2d DCA 1977). In that opinion, Judge Scheb, writing for the court, said,

Fla.R.Crim.P. 3.220 provides that the trial court has the discretion to exclude witnesses not included on the witness lists. However, the Supreme Court of Florida has held that this discretion may be exercised only after the court has made an adequate inquiry into all of the surrounding circumstances, and failure of the trial court to inquire into these circumstances constitutes error. Bradford v. State, 278 So.2d 624 (Fla.1973); Richardson v. State, 246 So.2d 771 (Fla.1971). The inquiry should at least cover whether the violation was inadvertent or willful, whether it was trivial or substantial, the extent of prejudice to the state, and the feasibility of rectifying any prejudice by some means short of excluding the witness. Bradford, supra; Williams v. State, 264 So.2d 106 (Fla. 4th DCA 1972). The importance of the omitted witnesses should also, we feel, be taken into consideration.

353 So.2d at 207. We believe that the trial court’s inquiry into whether the witnesses should be allowed to testify fell far short of the standards set out above. The court failed to ascertain the extent to which the state was prejudiced by the failure to disclose. Also the court made no search for a manner in which to rectify any possible prejudice short of the exclusion.

Moreover, where the court did make inquiry, the answers it received favored inclusion and not exclusion. The failure to disclose clearly was not willful and the witnesses were, just as clearly, very important. The testimony of appellant and Burdette was in direct conflict and the stories of any other eyewitnesses to the brawl surely would have assisted the jury in determining what actually happened at that service station.

In view of what we have said, it is obvious that we think appellant deserves a new trial in this case. Therefore we remand the case to the court below for that purpose.

GRIMES, C. J., and SCHEB, J., concur.

      . For a further discussion of that trial, see Adams v. State, - So.2d - (Fla. 2d DCA 1979).

      . Subsequently, the court ordered depositions of the excluded witnesses for it to consider in connection with appellant’s motion for a new trial. The depositions of three of the witnesses substantiated appellant’s version of the incident. The court denied appellant’s motion for a new trial.

      . We have considered appellant’s other point on appeal and find no need to discuss it in view of our disposition of this case.


author: PER CURIAM.

text:
    CITY OF CLEARWATER, Florida, a Municipal Corporation, Gabriel Cazares, Joseph Carwise, Karleen DeBlaker, Karen Martin, and Darwin Frank, as and constituting the Mayor and City Commissioners of the City of Clearwater, Florida, Picot B. Floyd, as City Manager of the City of Clearwater, Florida, and Warren Renando, as Acting Planning Director of the City of Clearwater, Florida, Appellants, v. Charles D. CURLS and Dorothy W. Curls, his wife, Appellees.
    No. 78-963.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    Thomas A. Bustin, City Atty., and Richard C. Griesinger, Asst. City Atty., Clear-water, for appellants.
    C. Peter Burro and Donald 0. McFarland of Phillips, McFarland, Gould, Wilhelm & Wagstaff, P. A., Clearwater, for appellees.
   PER CURIAM.

Among other things, appellants complain that the lower court erred in ordering appellants to rezone certain property to a specific zoning classification and we agree with the appellants as to this point. See The City of Punta, Gorda v. Morningstar, 110 So.2d 449 (Fla.2d DCA 1959); Wood v. Twin Lakes Mobile Home Villages, Inc., 123 So.2d 738 (Fla.2d DCA 1960). However, we find no merit to the other points raised by appellants and affirm the action of the lower court, modifying its order requiring rezoning to a specific zoning classification to read that appellants shall rezone the property sub judice to a zone classification not more restrictive than professional services.

BOARDMAN, Acting C. J., and RYDER and DANAHY, JJ., concur.


author: SCHEB, Judge.

text:
    Tommy ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-995.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant’s probation supervisor filed an affidavit alleging that appellant violated condition (4) of probation by committing grand theft and that he violated condition (9) of probation by visiting a bar. At a revocation hearing appellant admitted the violation of condition (9), but denied any violation of condition (4). The state presented no evidence as to either violation. The court revoked appellant’s probation and sentenced him to fifteen years in prison.

We affirm the revocation of appellant’s probation, but we remand the case for the correction of the written order of revocation which stated that the court had found appellant in violation of both conditions (4) and (9). Since appellant denied violating condition (4) and the state presented no evidence of a violation the court was not authorized to revoke probation on that ground. See Wheeler v. State, 344 So.2d 630 (Fla.2d DCA 1977).

By our decision, we reject appellant’s argument that we should, as we did in Tuff v. State, 338 So.2d 1335 (Fla.2d DCA 1976), order the trial court to reconsider the revocation of probation in light of the fact that we have overturned one of the two violations listed in the revocation order. In Tuff we found such a remand necessary only because the remaining violation was a technical one, and we could not tell whether the court would have revoked probation solely on that ground. Here, because the court heard no evidence on the violation of condition (4), we can assume that it intended to revoke only on the basis of condition (9) which was directly related to appellant’s rehabilitation and not a condition merely administrative in nature.

GRIMES, C. J., and OTT, J., concur.


text:
    Daniel L. McGOWAN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1980.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Joel D. Rosen-blatt, Asst. Atty. Gen., and Clifford M. Miller, Legal Intern, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

This appeal is taken by the defendant pursuant to Florida Rule of Appellate Procedure 9.140(g), which provides for an appeal from an order denying relief under Florida Rules of Criminal Procedure 3.850 without a hearing. We find that the defendant’s motion for post-conviction relief sets forth facts which, if established, would show that he was mentally and physically incapable of making a defense at the time of his trial; also, the record does not conclusively refute that claim. Therefore, the order appealed is reversed and the cause is remanded for an evidentiary hearing.

It is so ordered.


author: HAVERFIELD, Chief Judge.

text:
    Billy Lawrence VANN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2149.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Bergstresser & DuVal, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   HAVERFIELD, Chief Judge.

Billy Lawrence Vann, defendant, appeals his convictions and sentences for aggravated assault and attempted murder in the second degree.

In three informations Vann was charged with: aggravated assault (Case No. 76-10394), attempted murder in the second degree (Case No. 77-860) and carrying a concealed firearm (Case No. 77-2529). Initially he entered pleas of not guilty by reason of insanity to all three charges which arose out of separate incidents. Case No. 76-10394 was tried non-jury and after the prosecution presented a prima facie case and the trial judge rejected his defense of insanity, Yann withdrew his not guilty to all three charges (Cases Nos. 76-10394, 77-860, and 77-2529). When the trial judge informed Vann that the aggravated assault and attempted murder in the second degree charges necessitated mandatory consecutive three-year sentences, Vann moved to withdraw the guilty pleas to these two charges. His motion was denied and Vann was sentenced to consecutive sentences of three years each for aggravated assault and attempted murder and five years probation for carrying a concealed firearm.

Vann first urges as reversible error the rejection of his defense of insanity.

With respect to this issue the record contains the reports of two psychiatrists who opined that Vann did possess the capacity to comprehend the wrongfulness of his actions at the time he committed the acts for which he was charged. We, therefore, conclude that there was sufficient competent evidence to support the determination of the trial judge, sitting as the trier of the facts, that Vann was sane. Cf. French v. State, 266 So.2d 51 (Fla. 3d DCA 1972).

For the next two points on appeal, Vann argues that the trial court erred in (1) refusing to allow him to withdraw his guilty pleas to the charges of attempted second degree murder and aggravated battery; and (2) sentencing him to two consecutive mandatory sentences.

Vann contends that he should have been allowed to withdraw his guilty pleas because he was not aware at the time of the entry of his pleas that the convictions would carry with them a mandatory three-year sentence. The colloquy between Vann’s counsel and the trial judge clearly refutes this assertion. In fact, the trial judge stated in open court that “there may be jail time involved” and requested that defense counsel submit a memorandum on the issue of a mandatory sentence.

As concerns the imposition of the three-year consecutive sentences, again we find no error. Vann argues that based upon the holding in Brown v. State, 353 So.2d 214 (Fla. 2d DCA 1977) the imposition of consecutive mandatory sentences was improper. Brown simply holds that when a defendant is convicted on separate counts each of which fall within that category of crimes requiring a mandatory three-year sentence pursuant to Section 775.087(2), Florida Statutes (1975), consecutive sentences are not mandated thereunder. However, neither are such consecutive sentences prohibited. It is within the discretion of the trial judge to impose concurrent or consecutive sentences. Brown, supra, at 215. The consecutive sentences not being improper, this point on appeal must fail.

Nevertheless, the transcript of the sentence hearing does reflect that the trial judge was inclined to sentence Vann to concurrent three-year terms, but was of the opinion that he was prohibited by Section 775.087(2), Florida Statutes (1975). We, therefore, note that upon remand Vann may timely file a motion for reduction of sentence pursuant to Fla.R.Crim.P. 3.800.

We also considered Vann’s final point on appeal urging error in the denial of his motion for new trial and conclude that no reversible error has been made to appear.


author: SCHWARTZ, Judge.

text:
    Milton GAYNOR d/b/a North Miami Villas, Appellant, v. Fred C. WILLIAMS, etc., et al., Appellees.
    No. 78-427.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Spence, Payne & Masington, Daniels & Hicks, and Mark Hicks, Miami, for appellant.
    Pyszka, Kessler & Adams, Fort Lauder-dale, Rentz, McClellan & Haggard and L. Edward McClellan, Jr., Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Milton Gaynor is primarily a banker and an insurance man. He also individually owns among other properties, an apartment complex called the North Miami Villas, which he runs through a general manager, and from which he derives all the profits. We agree with the trial judge that, as a matter of law, Gaynor is not covered by his umbrella personal liability policy for an accident arising out of the operation of the apartment house, because of an exclusion, common in such policies, which states that it does not apply

“. . . to any business pursuits or business property . . . of an insured . . . ”

The summary judgment entered below in favor of the carrier, Lumbermens Mutual Casualty Company, on the issue of coverage is therefore affirmed.

Gaynor’s ownership of the complex clearly constituted a “continuous and comprehensive . . . activity for financial gain . . .,” and thus fell within the accepted definition of a “business pursuit.” O’Conner v. Safeco Ins. Co. of North America, 352 So.2d 1244, 1246 (Fla. 1st DCA 1977); Peterson v. Highlands Ins. Co., 328 So.2d 49 (Fla. 3d DCA 1976); Otero v. United States Fire Ins. Co., 314 So.2d 208 (Fla. 3d DCA 1975), cert. denied, 328 So.2d 843 (Fla.1976).

Furthermore, it does not matter that the ownership of the apartment house was not Gaynor’s only or main occupation. See Wiley v. Travelers Ins. Co., 534 P.2d 1293 (Okl.1974); Stern v. Ins. Co. of North America, 62 N.J. 582, 303 A.2d 883 (1973). The only case cited by the appellant for the contrary proposition, Southern Guaranty Ins. Co. v. Duncan, 131 Ga.App. 761, 206 S.E.2d 672 (1974), is not persuasive and is, in any case, meaningfully distinguishable. The policy involved there defined “business” as a “trade, profession or occupation, including farming . . .” The policy involved in this case, however, states only that the term “ ‘business’ includes trade, profession or occupation.” Since the word “includes” is a term of expansion, Jacksonville Terminal Co. v. Blanshard, 77 Fla. 855, 82 So. 300 (1919); Greyhound Lines, Inc. v. City of Chicago, 24 Ill.App.3d 718, 321 N.E.2d 293, 302 (1974), the definition here must be read to mean that business includes, but is not limited to the “trade, profession or occupation” of the insured. Both the “common understanding of the term . . . Braley v. American Home Assurance Co., 354 So.2d 904, 907 (Fla. 2d DCA 1978), cert. denied, 359 So.2d 1210 (Fla.1978), and the decided cases show that Gaynor’s “business pursuits” included the activity involved here.

Affirmed.

      . The underlying suit against Gaynor was a wrongful death action brought by the parents of a child who was electrocuted on a negligently maintained fence on the premises.

      . Similarly, the building itself was “business property” within the meaning of the exclusion. Cf. Dewey v. Niagara Fire Ins. Co., 16 Ohio Misc. 297, 242 N.E.2d 692 (C. P. Cuyahoga Co. 1968).

      . The appellant argues that “includes” should be viewed as a word of limitation so that the Lumbermens’ policy provision would be interpreted as meaning that “ ‘business’ comprises trade, profession, or occupation.” Under this view, however, the phrase would mean precisely the same with or without the word “includes.” The adoption of this argument would therefore run directly contrary to the rule that, if possible, each word of a contract should be ascribed some effect and meaning. Florida East Coast R. Co. v. City of Miami, 76 Fla. 277, 79 So. 682 (1918); Royal American Realty, Inc. v. Bank of Palm Beach & Trust Co., 215 So.2d 336 (Fla. 4th DCA 1968).


author: KEHOE, Judge.

text:
    Robert KRAUSE et al., Appellants, v. Janet RENO, as State Attorney, for the Eleventh Judicial Circuit of Florida, and as a citizen of the State of Florida, and Jim Smith, as Attorney General of the State of Florida, et al., Appellees.
    No. 78-539.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.

      George F. Knox, Jr., City Atty., and Sherman Bennett Mayor, Asst. City Atty., for appellants.
    Jim Smith, Atty. Gen., and Frank A. Vickory, Asst. Atty. Gen., Tallahassee, Joseph P. Averill, Paul & Thomson and Dan P. S. Paul, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellants, defendants below, bring this appeal from an order dated February 24, 1978, entered by the trial court in favor of appellees, plaintiffs below. Among other things, the order permanently enjoined appellants from holding any meeting for the purpose of screening applications and making recommendations for the position of Chief of Police for the City of Miami unless such meeting is at all times open to the public, properly noticed in advance, and the minutes of such meetings are recorded and promptly opened to public inspection. We affirm.

On February 21, 1978, Janet Reno, State Attorney, filed a complaint for declaratory and injunctive relief against appellants seeking, among other things, to have the trial court declare that any meeting held by appellants to assist the City Manager of the City of Miami in choosing a new police chief was subject to the provisions of Sections 286.011 and 286.012, Florida Statutes (1977), and to permanently enjoin appellants from meeting unless the provisions of Section 286.011 were met, i. e., basically, that any such meeting be open to the public. Thereafter, appellees Miami Herald Publishing Company and Miami Daily News, Inc., after their petitions to intervene were considered by the trial court, were added as additional parties plaintiff in the cause. Subsequently, after memoranda of law were filed by the various parties, the parties entered into a stipulation of facts upon which the cause came on to be heard on the complaint for declaratory and injunctive relief. After the hearing, the trial court entered the order appealed which, in pertinent part, provides as follows:

“THE ABOVE ENTITLED CAUSE came on to be heard before the undersigned Judge on the Complaint for Declaratory and Injunctive Relief filed by the Plaintiffs, and the Answer to said Complaint filed by the Defendants, ROBERT KRAUSE. The parties have stipulated and agreed that this matter may proceed to final determination based on the foregoing pleadings without observing the formality of deferring the final hearing as provided for pursuant to the Florida Rules of Civil Procedure, and all defendants are before the Court.

“The uncontroverted and stipulated facts are as follows:

“1. This is an action*1 for declaratory judgment pursuant to Chapter 86, Florida Statutes, and for a temporary and permanent injunction pursuant to Sections 286.-012 and 286.011, Florida Statutes, and the Florida Rules of Civil Procedure, § 1.610.

“2. Plaintiff Janet Reno, is a citizen of the State of Florida and State Attorney of the Eleventh Judicial Circuit and brings this action in the name of the State of Florida; Plaintiff Robert L. Shevin, is the Attorney General for the State of Florida.

“3. Defendant, Robert Krause, and four other persons were selected by the City Manager of the City of Miami to meet together and jointly screen applications, conduct interviews, evaluate candidates, and recommend four or five of the best qualified candidates, which would culminate in his appointment of a Chief of Police for the City of Miami, Florida, and to assist the City Manager in the process of making his final selection of a Police Chief.

“4. The City of Miami is a political subdivision of the State of Florida.

“5. With the exception of the Defendant, Robert Krause, all of the other selected individuals are private citizens and are not staff or personnel in the employ of the City Manager or of the City of Miami.

“6. The foregoing selected individuals were requested by the City Manager to meet together to jointly review the approximately 165 applications for the position of the Chief of Police of the City of Miami; to recommend the elimination of those applicants who did not appear to be sufficiently qualified; to conduct interviews only among the approximately 15 they decided were the best qualified, and to recommend the names of four or five applicants from whom the City Manager may appoint one to the position of Chief of Police of the City of Miami. The travel expenses of seven or eight of the applicants to be interviewed who reside outside of Dade County will be paid from public funds of the City of Miami and the City of Miami is paying the travel expenses of Watkins to return from Tennessee for the February 25, 1978 meeting and providing any necessary secretarial services required by the group. The City Manager has advised the public that it is unlikely that he will appoint anyone as Chief of Police who is not among the persons who are recommended by this group. However, the City Manager has additionally advised the public that based upon his powers as they are enumerated in Section 16 of the Charter of the City of Miami, and Section 43-2 of the Code of the City of Miami, he is not precluded from appointing any individual who, in his judgment, is qualified to occupy the position, notwithstanding any recommendation by the foregoing group.

“7. On February 8, 1978, Defendant Krause, and the selected individuals held a meeting at Miami City Hall at which the City Manager and the City of Miami turned over to them applications which were received by the City of Miami for the position of Chief of Police and the selected individuals began the process of evaluating the applications and narrowed the field of applicants at the February 8th meeting to approximately 15 to 18 candidates for further consideration.

“8. The public was given no notice of this meeting nor was this meeting at any time open to the public. No minutes were kept of this meeting which were made available to the public. Demand to enter this meeting was made by a newspaper reporter, who is a citizen of the State of Florida, and such demand was denied by the City Manager and the foregoing selected individuals.

“9. Defendants intend to hold another meeting on February 25, 1978, of which no formal notice has been given and which will not be open to the public.

The question posed to this Court for determination is as follows:

“Whether the Defendants composing this advisory group, which was appointed by the City Manager, Joseph Grassie, is subject to the government in the Sunshine Law.

“Application was made by the Miami Daily News, Inc. to intervene as a party plaintiff, and application was made by the Miami Herald to intervene as a party plaintiff and both applications were granted.

“The Court heard and considered the evidence presented, the arguments of the parties as well as the intervenors, reviewed and considered the Memoranda of Law submitted by the parties and the intervenors.

“The plaintiffs rely heavily upon the case of Town of Palm Beach v. Gradison, a Supreme Court of Florida case cited as 296 So.2d 473 to support their position. The defendants direct the Court’s attention to the case of Bennett v. Warden, a Second District Court of Appeals case cited at 333 So.2d 97 as the controlling case, as it pertains to the facts at issue. Unfortunately neither case is squarely on point and each case is clearly distinguishable from the case presently at issue before the Court. In the Bennett case ‘supra’ the Second District Court of Appeals found that the president of a junior college, as an executive officer of the College Board of Trustees, was no different from any other executive officer of any other board, agency or commission of government and, as such was neither a ‘Board’ nor a ‘Commission’ so as to require him to comply with the Sunshine Law by opening all of his meetings with the representatives of the career employees of the college; Bennett, as President of St. Peters-burg Junior College, periodically met in private with a group of junior college employees, who were designated by him as representatives of the career employees of St. Petersburg Junior College for the purpose of discussing with him various problems and suggestions relating to employees working conditions in general and wages and hours in particular; Bennett was merely the executive officer of the Board of Trustees and was neither a ‘Board’ nor a ‘Commission’ and carried out the directions, orders and policies of the ‘Board’ in the day-to-day administration of the junior college. The Court went on to find that the career employees council at the junior college, members of which were appointed by and served at the pleasure of the President of the College, was far too remote in decision-making process relating to working conditions (underscoring supplied) of career employees of college to be capable of making or formulating policy or crystalizing decisions anywhere near that point and, as such, was not a ‘council’, ‘committee’ or ‘group’ which was bound by the open meeting provision of the Sunshine Law as an alter ego of the College Board of Trustees.

“In the case presently before us the decision-making process of the group appointed by the City Manager to assist him in the selection of a Police Chief is not ‘too remote’ but on the contrary has a direct influence on the decision-making authority that appointed them. In the Town of Palm Beach v. Gradison case ‘supra’ a group of citizens were appointed by the Town Council for the purpose of guiding the planning firm that was employed for the purpose of updating and revising the town zoning ordinances, in their efforts to assure that the plan produced would be consistent with the character, image and land-use controls intended by the citizens. The Court found that this was a buffer lay group of citizens whose function was to serve part-time as the alter egoes of the Town Councilmen to make tentative decisions guiding the zoning planners and advising the council as to their ultimate zoning ordinances and as such were subject to the government in the Sunshine Law. That case is distinguished from the present case in that the City Commission of the City of Miami had no relationship whatsoever with the group that Mr. Grassie selected to assist him in appointing a Chief of Police. Cases involving an interpretation and application of the Florida Sunshine Law have been considered in the Second and Third District Courts of Appeal as well as by the Supreme Court of the State of Florida however, there is no case directly on point and it would appear that an application of the Florida Sunshine Law can be determined somewhere between the Town of Palm Beach v. Gradison and the Bennett v. Warden cases.

“In order to determine whether or not the defendants are governed by the Florida Sunshine Law it becomes necessary to examine the law itself and determine the intent of the legislature as it applies to the present case.

“The 1967 Session of the Florida Legislature enacted Chapter 67-356, Laws of Florida 1967 which became effective July 1, 1967, and appears in the Florida Statutes as paragraph 286.011, it has appropriately been labeled Florida’s ‘Government In The Sunshine Law’. It provides among other things that ‘all meetings of any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meetings. The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded and such records shall be open to public inspection. * * * ’

“It is apparent that the legislature intended that the ‘open meeting’ concept was intended to bind every ‘board or commission’ of the state. It is also apparent that the legislature intended to include the acts of deliberation, discussion and deciding that occurred prior to and leading up to the affirmative formal action which renders official the final decisions of a governing body. Chief Justice Adkins in his opinion in the Town of Palm Beach v. Gradison case ‘supra’ makes the observation that ‘every meeting of any board, commission, agency or authority of a municipality should be a marketplace of ideas, so that the governmental agency may have sufficient input from the citizens who are going to be affected by the subsequent action of the municipality. The ordinary taxpayer can no longer be led blindly down the path of government, for the news media, by constantly reporting community affairs, has made the taxpayer aware of government problems. Government, more so now, than ever before, should be responsive to the wishes of the public. These wishes could never be known in nonpublic meetings, and the governmental agencies would be deprived of the benefit of suggestions and ideas which may be advanced by the knowledgeable public. Also, such open meetings instill confidence in government. The taxpayer deserves an opportunity to express his views and have them considered in the decision-making process * * * No governmental board is infallible and it is foolish to assume that those who are elected or appointed to office have any superior knowledge concerning any government problem. Every person (underscoring supplied) charged with the administration of any governmental activity must rely upon suggestions and ideas advanced by other knowledgeable and interested persons. As more people participate in governmental activities, the decision-making process will be improved * * * The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency and relates to any matter on which foreseeable action will be taken.’

“In the instant case the City Manager, who is the Chief Administrative Officer of the City of Miami appointed by the City Council is charged with the responsibility of selecting a Chief of Police for the City of Miami; a matter that is obviously of great import and interest to the public. Mr. Grassie has apparently recognized the wisdom of seeking advice and assistance from a group of citizens appointed by him for the purpose of conducting the screening process and making its recommendations to him for his ultimate and final decision. Mr. Grassie is to be commended for having exercised the good judgment of availing himself of as much input and assistance in connection with this important selection. Having elected to create this group, which by any other name is nonetheless a ‘board’ and empowering them with the responsibility of screening the applicants for the important post of Police Chief and exercising an elimination process to the point of reducing the number of applicants to four or five which they would then recommend to the City Manager and which would constitute an official act on their part, brings them, in the judgment of this Court, clearly within the provision of Section 286.011 of the Florida Statutes.

“While it may be contended, though it has not been raised in the pleadings presently before the Court, that such public scrutiny may discourage competent and capable applicants from seeking this position, such a risk is outweighed by the advantages of the public being informed by the right to participate as to the background, qualifications, character and all other attributes that may be considered by the group in making its assessment of the applicants for this important position. The public at large is and should be vitally interested in the selection of a Police Chief for the City of Miami and an evaluation, interview and screening of these applicants for this position should be conducted ‘in the Sunshine’. It is accordingly

CONSIDERED, ORDERED AND ADJUDGED as follows:

“1. That the defendants Gerald Watkins, Johnny Jones, Jeanne Bellamy, Leslie Pantin and Robert Krause be and they are hereby permanently enjoined and restrained from holding, conducting or participating in any meeting wherein public business is discussed or contemplated or transacted or at which official acts are to be taken unless such meetings are at all times open to the public and properly noticed in advance and the minutes of such meetings are recorded and promptly opened to public inspection. That such public business and official acts shall extend to and include, but not be limited to the screening of applications, conducting interviews, evaluating candidates, and recommendations thereof for the position of Chief of Police for the City of Miami.

“2. Each of the defendants, GERALD WATKINS, JOHNNY JONES, JEANNE BELLAMY, LESLIE PANTIN and ROBERT KRAUSE are directed, within ten days from the date of this order to prepare a resume of the proceedings reflecting those matters acted upon at the meeting of February 8, 1978 which minutes shall be promptly made available for public inspection.

“3. The prayer of the Plaintiffs that a declaratory decree declaring that any duly appointed board or committee of the City of Miami which takes official acts or is a step in any official decision-making process is subject to Sections 286.011 and 286.012 of the Florida Statutes be and the same is hereby denied. Until such time as we have the benefit of further appellate review or legislative modification, each situation which has not previously been resolved by prior judicial decision will have to be reviewed on its merit, however, if there is any doubt as to whether such board or committee is governed by Section 286.011 of the Florida Statutes, the members of any such board, agency, authority or commission should follow the open-meeting policy of this state.

“4. That the defendants and any replacements or substitutions appointed in addition to or in substitution of any or either of them are subject to the government in the Sunshine Law and subject to Sections 286.011 and 286.012 of the Florida Statutes.

“5. Jurisdiction of this cause and of the parties hereto are reserved for the purposes of enforcing this order.”

Based upon the foregoing, appellants appealed contending that: (1) a permanent injunction should not have been issued to force an advisory group or committee selected by the City Manager, which committee serves under the Manager’s direction for the purpose of assisting him in the discharge of a purely administrative duty, to meet within the contemplation of Section 286.011, Florida Statutes (1977) [“Government in the Sunshine Law”]; (2) the City Manager and advisory groups or committees appointed by him for assistance are not agencies, boards, or commissions within the contemplation of Section 286.011; and (3) the Legislature did not intend for Section 286.011 to be extended to administrative deliberative processes which culminate in the completion of a purely administrative act.

Section 286.011, Florida Statutes (1977), provides:

“(1) All meetings of any board or commission of any state agency or authority or of- any agency or authority of any county, municipal corporation or any political subdivision, except as otherwise provided in the constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, regulation or formal action shall be considered binding except as taken or made at such meeting.
“(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded and such records shall be open to public inspection. The circuit courts of this state shall have jurisdiction to issue injunctions to enforce the purposes of this section upon application by any citizen of this state.
“(3) Any person who is a member of a board or commission or of any state agency or authority of any county, municipal corporation or any political subdivision who violates the provisions of this section by attending a meeting not held in accordance with the provisions hereof is guilty of a misdemeanor of the second degree, punishable as provided in § 775.-082 or § 775.083.”

The courts of this State have been called upon on frequent occasions to interpret the legislative intent underlying the Sunshine Law. Enacted approximately a decade ago, the Sunshine Law reflects Florida’s commitment to openness in government. It is beyond doubt that the Statute is to be construed liberally in favor of open government. The Florida Supreme Court announced in Board of Public Instruction v. Doran, 224 So.2d 693, 699 (Fla.1969), the principle that “[sjtatutes enacted for the public benefit should be interpreted most favorably to the public.” Indicative of this policy is the Florida Supreme Court’s pronouncement in City of Miami Beach v. Berns, 245 So.2d 38, 40 (Fla.1971), that:

“One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.”

Among the important public aspects to be served by open meetings of governmental bodies are the following: First, there is the citizen input factor. For example, in Town of Palm Beach v. Gradison, 296 So.2d 473, 475 (Fla.1974), our Supreme Court stated that “[ejvery meeting of any board, commission, agency or authority of a municipality should be a marketplace of ideas, so that the governmental agency may have sufficient input from the citizens who are going to be affected by the subsequent action of the municipality.” Second, in addition to this need for citizen input, representative government requires that it be responsive to the wishes of the governed, because that is its ultimate source of consent. Third, open meetings produce stability and public confidence in government. Fourth, open meetings reported by the news media insure that our system of government will function as a genuine participatory democracy, i. e., the governed have a right to participate in their government. A fifth interest served by open meetings is the “checking effect” that open meetings have on governmental abuses. Meetings in public facilitate this “checking value.” Even if most persons are unable to attend such meetings, they allow the news media to “watchdog” the conduct of public officials. Another interest to be served by open meetings is the public can better evaluate public officials and their projects by being privy to the decision-making process. Thereby, for example, the public may vote intelligently on retaining officials, restructuring their offices, and approving or rejecting their projects. Also, public access to governmental meetings enables members of the public to understand more completely the decision-making processes of government and thereby consider future governmental developments and the consequences of those developments for their own lives. Although this list is not all inclusive, we believe that it is persuasive of the several important interests to be served in assaying the Legislative intent and in applying the provisions of our Sunshine Law.

The selection of a police chief for the City of Miami affects the security, the lives, and the property of every resident of the City. The City Manager fully realized the significance of this appointment and formulated a “blue ribbon” citizens group to perform much of the work necessary to this task. From the record before us, it certainly appears that the Manager is to be commended for utilizing this method of selection. However, as set forth in the stipulation of facts stated above, the citizens group attempted to perform its part of the decision-making process in closed meetings. We feel that all of the aspects underlying the public’s interest in governmental public meetings existed in the instant case; however, even in light of the clear legislative intent in interpreting our Sunshine Law and these attendant interests, this does not answer the primary issue in this appeal, i. e., whether the citizens group meetings were covered by Section 286.011.

Based upon the stipulated facts in this cause and upon the points raised by appellants on appeal, two critical questions present themselves for our determination of whether Section 286.011 is applicable as found by the trial court. For purposes of our discussion, we can summarize these two questions as follows: (1) whether the advisory group was a “board” within the meaning of Section 286.011, and (2) whether when the City Manager opted to utilize the advisory group he placed himself within the definition of “agency” as that term is used in Section 286.011. If, in this case, the answer to both of these questions is affirmative, the trial court’s order must be affirmed.

In construing the Sunshine Law, the Florida courts have consistently looked at the substance of a meeting, rather than its form, in determining its nature. Since the decision by the Florida Supreme Court in Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), there can be no doubt that an advisory board appointed to make recommendations to an appointing authority is subject to the dictates of the Sunshine Law. In that case, the Court based its decision upon the public policy sought to be furthered by the Sunshine Law and stated:

“One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance. Rarely could there be any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed door. The statute should be construed so as to frustrate all evasive devices. This can be accomplished only by embracing the collective inquiry and discussion stages within the terms of the statute, as long as such inquiry and discussion is conducted by any committee or other authority appointed and established by a governmental agency, and relates to any matter on which foreseeable action will be taken.” Id. at 477.

This case announced the principle that an advisory board appointed by a governmental agency and deliberating on matters upon which foreseeable action might be taken must meet in the open. As shown by the stipulated facts herein, the citizens group undertook an elimination process to narrow down to a select few those applicants whom the City Manager publicly announced he would consider for police chief. Although the Manager was not technically bound to appoint the police chief from the applicants submitted by the advisory group, his announced intention was to do so, and, in fact, he did. Thus, in this case, the advisory group was an integral part of the decision-making process. In our opinion, once the City Manager utilized the advisory group to assist him, he created a “board” as that term was contemplated in Section 286.-011.

The question of whether the City Manager was an “agency” as that term is contemplated by Section 286.011 is one which, in our opinion, must also be answered in the affirmative. The Sunshine Law itself contains no definition of “agency” or “authority.” Therefore, this court may look to similar or analogous statutory provisions which give effect to the same public policy underlying the Sunshine Law or which also concern the processes of state and local government. The statute most analogous to the Sunshine Law is Chapter 119, Florida Public Records Law, which also exists to assure openness in and access to government. Section 119.011(2), Florida Statutes (1977), defines “agency” as “. . . any state, county, district, authority, or municipal officer, department, division, board, bureau, commission or other separate unit of government created or established by law and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.” Section 20.03(11), Florida Statutes (1977), of the Government Reorganization Act defines “agency” to include an official, officer, commission, authority, council, committee, department, division, bureau, board, section, or another unit or entity of government.” Section 120.52(3), Florida Statutes (1977), of the Administrative Procedures Act defines “agency head” as “. . . the person or collegial body in a department or other governmental unit statutorily responsible for final agency action.” In our opinion, considering the definition of the term “agency” as defined in analogous and related statutes and based upon the ordinary dictionary definition of the word, we believe that once the City Manager, as the chief executive officer of the City of Miami, opted to utilize the advisory group, i. e., “board”, to directly assist him in the decision-making process to select a new police chief for the City, he placed himself, under these facts, within the definition of the term “agency” as it is used in Section 286.011. Thus, once the City Manager opted to utilize the advisory board, he also opted, at least for this limited purpose, to have himself defined as an “agency” within the contemplation of Section 286.011.

It seems clear from the language of the broadly written Sunshine Law that the Legislature intended to open to the public all meetings of any body over which its authority extends at any time when official acts are to be taken by that body. Here it is uncontested that “official acts” were taken. The meetings of various boards, committees, commissions, etc., existing throughout the State of Florida which are subject to the “dominion and control of the Legislature” are intended to be open to the public. See, e. g., City of Miami Beach v. Berns, 245 So.2d 38 (Fla.1971). Obviously, the Legislature’s dominion and control extends to any number of such bodies which are considered “executive” and is not limited, as urged by appellants, to those boards, etc., which are appointed by bodies which are “legislative” in nature. Appellants assert that the selec tion of the police chief is solely within the prerogative and discretion of the City Manager, the City’s chief administrative officer, who is by law free from interference by the City’s legislative body, i. e., the City Commission, in his decision-making process. From these facts, appellants argue that the board appointed by the City Manager is not within the “dominion and control of the Legislature,” i. e., the City Commission, and thus is not subject to the Sunshine Law. We believe that this is a non sequitur; both the City Commission and City Manager are ultimately within the dominion of the Florida Legislature, the legislature contemplated by Section 286.011. Further, the distinction, as urged by appellants, is not found in the Sunshine Law nor has it ever been read into the Law by the courts as determinant of whether a body must meet in the open. In our opinion, it is the fact of the board, not the source of the board, taking official acts which is subject to the Legislature’s “dominion and control” which is determinative. We feel that to interpret the Sunshine Law otherwise would submerge it into a semantical quagmire, thereby thwarting its manifest objective.

For the reasons and based upon the authorities set forth above, we hold that the points raised by appellants on appeal are without merit. Accordingly, the order appealed is affirmed.

Affirmed.


text:
    Ira ZUCKERMAN, Appellant, v. Michele J. ZUCKERMAN, Appellee.
    No. 78-555.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Tew, Mason, Spittler & Graves and Jeffrey Allen Tew, Miami, for appellant.
    Buchbinder & Elegant and Harris J. Buchbinder, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Knoblock v. Knoblock, 351 So.2d 387 (Fla. 1st DCA 1977); Colman v. Colman, 314 So.2d 156 (Fla. 4th DCA 1975).


author: PEARSON, Judge.

text:
    Thomas DWYER, Appellant, v. BURRELL LEASING COMPANY and Miami Ice Machine Company, Appellees. UNITED STATES ICE MACHINE MANUFACTURING CORPORATION, Appellant, v. Thomas DWYER, Appellee.
    Nos. 78-556, 78-1171.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.

      Tew, Critchlow, Sonberg & Traum, P.A. and Steven R. Reininger, Tew, Mason, Spittler & Graves and Jeffrey Allen Tew, Miami, for Thomas Dwyer.
    Neil Flaxman, Coral Gables, for U. S. Ice Mach. Mfg. Corp.
    Horton, Perse & Ginsberg and Edward A. Perse, P. J. Carroll & Associates, Miami, for Burrell Leasing.
    Swink, Swink & Swink and William F. Swink, Miami, for Miami Ice Mach.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PEARSON, Judge.

These appeals arise from the same cause. Thomas Dwyer was the plaintiff in an action to recover damages for breach of an employment contract with United States Ice Machine Manufacturing Corporation and defendants Burrell Leasing Company and Miami Ice Machine Company, upon a theory that these latter two companies were also liable on the contract of employment. He suffered a final judgment upon a directed verdict dismissing the defendants, Burrell Leasing Company and Miami Ice Machine Company. Thomas Dwyer appeals this judgment.

The cause was tried upon Dwyer’s claim for damages against United States Ice Machine Manufacturing Corporation. The jury returned a verdict for the plaintiff and the defendant, United States Ice Machine Manufacturing Corporation, appeals that judgment.

With regard to Dwyer’s appeal from the order dismissing Burrell Leasing Company and Miami Ice Machine Company, we hold that upon this record the court correctly directed a verdict for these defendants on the ground that the evidence presented was insufficient to support a finding by the jury that these companies were the alter egos of United States Ice Machine Manufacturing Corporation in their dealings with the plaintiff Dwyer. See the legal principle in Levenstein v. Sapiro, 279 So.2d 858 (Fla.1973); and Bermil Corporation v. Sawyer, 353 So.2d 579 (Fla. 3d DCA 1977).

With regard to the appeal by United States Ice Machine Manufacturing Corporation from the judgment against it, it is argued as a point on appeal that it was error to exclude from the evidence a written agreement between Dwyer and his former employer which could be read by the jury as placing Dwyer under obligations to his former employer which obligations were inconsistent with his performance under the contract upon which he is now claiming damages. An examination of the record shows that the central issue placed before the jury was whether or not the termination of Dwyer’s employment was due to the fact that he was wrongfully discharged or that he was properly discharged for a failure to perform his contract of employment according to its terms. It thus was necessary for the jury to decide whether Dwyer properly performed his contract of employment prior to his discharge. The legal obligations of Dwyer to his former employer after the termination of that employment were relevant to his ability to perform the contract upon which his suit was based. Because of its relevancy to that issue, it was error to exclude the contract with the former employer which contained restrictive covenants and obligations imposed upon Dwyer having effect after the termination of his employment.

Dwyer’s argument that the exclusion of the contract from evidence may be held to be harmless error because some of its terms were discussed on cross-examination is not tenable on this record because the contract in its entirety was relevant. We also hold that Dwyer’s position that the contract, on its face, was unenforceable in some of its provisions is not necessarily legally correct and is not a basis for the exclusion of the contract as a whole.

Having found reversible error in the failure to admit substantial, relevant evidence, the judgment based upon the jury verdict must be reversed and the cause remanded for a new trial. See Prior v. Oglesby, 50 Fla. 248, 39 So. 593 (1905); see also McBrayer v. State, 112 Fla. 415, 150 So. 736 (1933).

Having reached the conclusion that the cause must be retried, it is unnecessary to discuss the additional points presented upon the appeal by United States Ice Machine Manufacturing Corporation.

Accordingly, the judgment upon the directed verdict for the defendants Burrell Leasing Company and Miami Ice Machine Company is affirmed, the judgment against United States Ice Machine Manufacturing Corporation is reversed and the cause is remanded for a new trial upon the complaint against that defendant.

Affirmed in part, reversed in part and remanded.


author: PER CURIAM. SCHWARTZ, Judge

text:
    Goldwyn CHRISTENSSON and Elaine J. Christensson, his wife, Appellants, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 78-784.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Ezzo, Garel & Saylor, Miami, for appellants.
    Stuart L. Simon, County Atty. and Stuart H. Sobel, Asst. County Atty., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Commercial Carrier Corp. v. Indian River County, 342 So.2d 1047 (Fla. 3d DCA 1977); Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977); Rajchl v. City of Miami, 353 So.2d 630 (Fla. 3d DCA 1977).

SCHWARTZ, Judge

(dissenting).

Since I agree with Judge Hubbart’s dissent in Cheney v. Dade County, 353 So.2d 623, 626 (Fla. 3d DCA 1977), I similarly dissent from the affirmance of the judgment now under review.


text:
    Anthony ALTAMORE, Appellant, v. MGIC DEVELOPMENT CORPORATION et al., Appellees.
    No. 78-787.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.

      Franklin, Ullman, Kimler & Entin, North Miami Beach, and Ronald A. Dion, Miami, for appellant.
    Adams & Ward and Amy Shield Levine, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

The plaintiff appeals from a final judgment on a jury verdict which awarded zero damages. The defendant-appellee concedes that, under the circumstances of this case, the judgment would be error except for the fact that the erroneous verdict was occasioned by error which the plaintiff-appellant himself caused.

Briefly stated, the facts are as follows: The plaintiff was injured by a guard dog while working on a job that was being guarded by the dog. The control of the dog was that of the defendants. The trial judge entered a verdict for the plaintiff on the issue of liability. The cause was submitted to the jury on damages only. While certain damages were controverted, the existence of a broken arm and medical expenses therefor were not controverted in the evidence. There was evidence introduced by the plaintiff that he had received workmen’s compensation benefits. The trial court instructed the jury that the amount of the workmen’s compensation paid should not be taken into consideration in the amount of their verdict. The single verdict submitted was for the plaintiff with the amount of damages left blank. The jury returned a verdict of zero damages. A motion for new trial on the basis of an inadequate verdict was denied.

We reverse upon authority of the law as set forth in Worley v. Kirkland, 360 So.2d 447 (Fla.1st DCA 1978). See also Pickel v. Rosen, 214 So.2d 730 (Fla.3d DCA 1968).

Appellees’ argument that the error was invited is not applicable in view of the fact that the only reasonable explanation of the jury’s action is its disregard of the collateral sources instruction relative to the workmen’s compensation benefits paid.

Having found that the trial court should have granted a new trial on the basis of appellant’s first point, we do not consider further argument in the cause.

Reversed and remanded with directions to grant a new trial on the issue of damages only.

      . Appellees restate appellant’s first point on appeal, as follows:
      “A jury properly awarded zero damages after there had been a directed verdict on liability and where error, if any, was invited by the plaintiff.”


text:
    Sylvia HOFFMAN, Appellant, v. Gerald M. HOFFMAN, Appellee.
    No. 78-791.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Morton R. Goudiss, Miami Beach, for appellant.
    Mitchell M. Goldman, Miami and Sidney B. Shapiro, North Miami Beach, for appel-lee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Kippy Corporation v. Colburn, 177 So.2d 193 (Fla.1965); and see Allen v. Allen, 230 So.2d 29 (Fla. 1st DCA 1969).


text:
    Raymond STRAUSS and Berkell Strauss, P.A., a professional association, Appellants, v. Vladimir IGREC, a/k/a Walter Igrec and Maria Igrec, his wife, Appellees.
    No. 78-902.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Corlett, Merritt, Killian & Sikes and Linda Loomis Shelley, Miami, for appellants.
    Horton, Perse & Ginsberg and Edward A. Perse, Brumer, Moss, Cohen & Rodgers, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

This appeal urges thát there was insufficient evidence to support the verdict of the jury that the appellant was guilty of legal malpractice. Our review of the record convinces us that this position is not well taken and that the judgment should be affirmed upon the principles stated in Holstun v. Embry, 124 Fla. 554, 169 So. 400, 405-406 (1936).

The second point raised urges that the trial court erred in failing to grant a remittitur upon the theory that certain damages must have been included in the verdict and that these damages are improper. First, our examination of the record fails to show that this alleged error was presented to the trial court for correction. Also, the judge, apparently on his own motion, granted a remittitur of $1,000 upon a theory different from that advanced by the appellant here. The judgment must be affirmed. See Cohen v. Margoa, Inc., 281 So.2d 406 (Fla. 3d DCA 1973).

Affirmed.


text:
    Margo C. WOODMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Margo C. Woodman, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, PEARSON and BARKDULL, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of her motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of her motion is affirmed.

Affirmed.


text:
    Glen O. JONES, Appellant, v. STATE of Florida, Appellee.
    No. LL-145.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1979.
    Glen O. Jones, in pro per.

      Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We have considered the record in appellant’s pro se appeal from an order denying relief under Fla.R.Crim.P. 3.850 without a hearing. The transcript of testimony of the arraignment proceedings reflects that appellant, in the presence of counsel, changed his plea from not guilty of attempted murder to guilty of the lesser offense of aggravated battery. It also reflects that before accepting the plea, the trial court effectively complied with the provisions of Fla.R. Crim.P. 3.172. See also Thornton v. State, 354 So.2d 892 (Fla.3d DCA 1978).

We therefore conclude that the trial court’s order denying relief without a hearing is supported by the record showing conclusively that the appellant is entitled to no relief.

AFFIRMED.

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


text:
    John Victor HARRIMAN, Appellant, v. STATE of Florida, Appellee.
    No. LL-97.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1979.
    Michael J. Minerva, Public Defender; and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

The judgment and sentence for burglary are affirmed. However, the cause is remanded to correct the erroneous sentence set forth in the “Uniform Commitment to Custody of Division of Corrections” which fails to specify credit for jail time previously served. Duncan v. State, 354 So.2d 451 (Fla.1st DCA 1978). Appellant need not be present for this purpose.

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


author: BOOTH, Judge.

text:
    Ernest Eugene TILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. MM-26.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1979.

      Ernest Eugene Tillman, in pro. per.
    Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   BOOTH, Judge.

This cause is before us on appeal from the summary denial of appellant’s motion to vacate judgment and sentence under Rule 3.850, Florida Rules of Criminal Procedure, and appellee’s motion to dismiss the appeal.

The motion to vacate alleged newly discovered evidence. This allegation is stated in a purely conclusionary form, without supporting facts and, standing alone, is insufficient to require the trial court to hold a hearing. Further, with respect to newly discovered evidence as grounds for collateral attack on a judgment under Rule 3.850, particular allegations required are stated most recently in the well-reasoned decision of the Third District in State v. Gomez, 363 So.2d 624 (Fla. 3d DCA 1978):

“It is also the weight of authority in this state that newly discovered evidence tending to establish the innocence of a convicted defendant is a valid ground for collateral attack of a criminal conviction under a writ of error coram nobis providing: (1) such evidence was unknown at the time the judgment of conviction was rendered and (a) could not have been discovered through the use of reasonable diligence for presentation at the original trial or on a motion for new trial, or (b) was not discovered because of actual dominating fraud, duress, or other unlawful means, and (2) such evidence is of such probative force that had it been so produced, it would have prevented rendition of the judgment of conviction under attack. This ground has been reserved for those infrequent, but greatly unsettling cases where a miscarriage of justice has in all likelihood occurred in which a person stands convicted of a crime which he did not commit. .
Based upon the above lines of authority, our decisions have recognized that newly discovered evidence, whether in the form of a third party confession or other demonstrative or testimonial evidence, may constitute a valid ground for collateral attack of a criminal conviction under Fla. R.Crim.P. 3.850 . . . Implicit in such decisions, however, is that the newly discovered evidence must meet the above traditional coram nobis requirements for such ground. Accordingly, the trial court is not compelled to accept the ground absent a showing that such requirements have been met. . . . ” (emphasis supplied)

We hold that the mere assertion of newly discovered evidence is insufficient to require the trial court to hold a hearing because of the general rule regarding con-clusionary allegations and because it fails to meet the particular requirements of that ground as stated in the Gomez case, supra.

The motion to dismiss filed in this Court correctly points out that the appellant’s ground for relief under Rule 3.850 is, in truth, nothing more than an attack on the sufficiency of the evidence to sustain the conviction. Indeed, the allegation of “newly discovered evidence,” is never explained or amplified in appellant’s brief in this Court, a brief devoted entirely to reviewing the sufficiency of the evidence. The issue of sufficiency of the evidence was presented on appeal from the conviction and disposed of by this Court in Tillman v. State, 353 So.2d 948 (Fla. 1st DCA 1978).

Accordingly, the motion to dismiss is GRANTED.

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

      . Capo v. State, 363 So.2d 410 (Fla. 1st DCA 1978) and cases cited therein; Morrison v. State, 283 So.2d 137 (Fla. 2nd DCA 1973); Whitlow v. State, 256 So.2d 48 (Fla. 2nd DCA 1971).


author: SMITH, Judge.

text:
    William Joseph THAMES, Appellant, v. STATE of Florida, Appellee.
    No. KK-355.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1979.
    Rehearing Denied March 21, 1979.
    Michael J. Minerva, Public Defender, Janice G. Scott and John D. C. Newton, III, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

Thames appeals from his conviction of possession of more than five grams of marijuana, contending that the evidence was insufficient to show his possession of the substance. Police, executing a search warrant, found the marijuana in the top drawer of a dresser in the bedroom where Thames was sleeping. Others shared possession of the house. Yet, the drawer that contained the marijuana also contained mail addressed to Thames, and a photograph of Thames was hung on the wall of the bedroom. The evidence was sufficient to show that Thames was in exclusive possession of the bedroom or, if it was in his joint possession only, he had knowledge of the presence of the marijuana in the drawer and the ability to maintain control over it. See Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976).

AFFIRMED.

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


text:
    John AVERY, Appellant, v. Sherry WAGNER, Appellee.
    No. 78-546.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    John L. Avery, Jr., West Palm Beach, for appellant.

      No appearance by appellees.
   PER CURIAM.

In this suit for partition it appears the appellant was legally entitled to have the court order the partition. Therefore this cause is remanded for entry of a judgment partitioning the property owned by the parties as tenants in common.

REVERSED and REMANDED.

CROSS, DAUKSCH and LETTS, JJ., concur.


text:
    Emma Jean AKINS, Appellant, v. STATE of Florida, Appellee.
    No. 77-2489.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, and William H. Larkins, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a conviction and sentence for manslaughter. The appellant claims that the proof of identity of the victim was insufficient and that the imposition of a mandatory three year minimum sentence under Section 775.087, Florida Statutes (1975) was error. We find the evidence sufficient as to the identity of the victim. However, Section 775.087, prescribing a mandatory minimum sentence of three years for certain offenses when a firearm is involved, does not apply to manslaughter. Jones v. State, 356 So.2d 4 (Fla. 4th DCA 1977). Accordingly, this cause is reversed with directions that the appellant’s sentence be amended to omit the mandatory three year provision. The appellant need not be present when the sentence is amended.

REVERSED WITH DIRECTIONS.

CROSS, ANSTEAD and LETTS, JJ., concur.


text:
    David R. McCONNELL and Robert C. Wetenhall d/b/a McConnell Wetenhall Shopping Centers, Appellants, v. CITY OF CASSELBERRY, Florida, a Florida Municipal Corporation, G. Troy Ray, Jr., Tax Collector of Seminole County, Florida, and Terry Goembel, Property Appraiser of Seminole County, Florida, and William A. Jacob, Trustee, Appellees.
    No. 78-393.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.

      W. Michael Clifford and James M. Corn-gan, of Maguire, Voorhis & Wells, P. A., Orlando, for appellants.
    Franklin G. Whigham, of Stenstrom, Davis & McIntosh, Sanford, for appellee City of Casselberry.
    Joe Horn Mount and Harry A. Stewart, Sanford, for appellees G. Troy Ray, Jr., and Terry Goembel.
   PER CURIAM.

AFFIRMED. See Lykes Bros., Inc. v. City of Plant City, 354 So.2d 878 (Fla.1978).

ANSTEAD and BERANEK, JJ., and SIEGENDORF, ARDEN M., Associate Judge, concur.


text:
    GENTRY MANUFACTURING COMPANY, INC., Appellant, v. Adam C. HECK and Jacasa Properties, Inc., et al., Appellees.
    No. 77-2105.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    George L. Clapham, Orlando, for appellant.
    Philip W. Watson and William C. Martin, III, of Akerman, Senterfitt & Eidson, Orlando, for appellees.
   PER CURIAM.

AFFIRMED. See Vista Landscaping, Inc. v. Heck, 366 So.2d 1264, Case No. 77-2106 (Fla. 4th DCA, opinion filed this date).

ANSTEAD and LETTS, JJ., and WETH-ERINGTON, GERALD, Associate Judge, concur.


text:
    Jimmy Wayne SIMPSON and Jewell Shannon Harrison, Appellants, v. Adam C. HECK, Jacasa Properties, Inc., et al., Appellees. PEACE VALLEY DRYWALL, INC., Appellant, v. Adam C. HECK, Jacasa Properties, Inc., et al., Appellees.
    Nos. 77-2153, 77-2154.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Joseph G. Bywater of Pittman & Bywa-ter, Lakeland, for appellants.
    Philip W. Watson and William C. Martin, III, of Akerman, Senterfitt & Eidson, Orlando, for appellees.
   PER CURIAM.

AFFIRMED. See Vista Landscaping, Inc. v. Heck, 366 So.2d 1264, Case No. 77-2106 (Fla. 4th DCA, opinion filed this date).

ANSTEAD and LETTS, JJ., and WETH-ERINGTON, GERALD, Associate Judge, concur.


text:
    VISTA LANDSCAPING, INC., Appellant, v. Adam C. HECK and Jacasa Properties, Inc., et al., Appellees.
    No. 77-2106.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Vernon Swartsel of Anderson & Rush, Orlando, for appellant.
    Philip W. Watson and William C. Martin, III, of Akerman, Senterfitt & Eidson, Orlando, for appellees.
   PER CURIAM.

This is an appeal from a final summary judgment denying a subcontractor’s claim for an equitable lien against the undis-bursed balance of a second loan made by the appellees, to complete construction of an apartment project.

The appellant claims that he is entitled to an equitable lien against the loan funds on the basis of unjust enrichment and affirmative deception. First, appellant asserts that any time there is an undisbursed loan fund in existence on a completed construction project, a subcontractor or supplier is entitled to an equitable lien to the extent of his unpaid account. As a second ground, appellant claims that the lender here induced him into completing work on the project by representations that there were additional loan funds available to pay for all his work.

As to the first point, the appellant relies principally on Morgen-Oswood & Associates, Inc. v. Continental Mortgage Investors, 323 So.2d 684 (Fla. 4th DCA 1975). However, we do not believe the factual circumstances giving rise to the equitable lien in Morgen-Oswood are presented here. For instance, it is undisputed that the appellant’s lien rights on the project in question are superior to any claim or lien of appellees arising out of the second loan. The only prior lien rights being asserted by the appellees are those arising out of the initial loan which was totally disbursed well before the project was completed. We believe the second issue has been determined adversely to the appellant’s claim by the Supreme Court’s decision in Rinker Materials v. Palmer First National Bank, 361 So.2d 156 (Fla.1978).

Accordingly, the judgment of the trial court is affirmed.

ANSTEAD and LETTS, JJ., and WETH-ERINGTON, GERALD, Associate Judge, concur.


author: BERANEK, Judge.

text:
    BROWARD COUNTY, a Political Subdivision of the State of Florida, Appellant, v. FORT LAUDERDALE CHRISTIAN SCHOOL, Appellee.
    No. 77-2388.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.

      Alexander Cocalis, Acting Gen. Counsel for Broward County, Fort Lauderdale, for appellant.
    Neis R. Pearson, Fort Lauderdale, for appellee.
   BERANEK, Judge.

This is an appeal from the trial court’s dismissal of a complaint with prejudice. Broward County sued the Fort Lauderdale Christian School to enjoin its operation of a food service establishment without a permit as required by a county ordinance. The court dismissed the complaint because Section 509.241(2)(b)(l), Florida Statutes, exempts school cafeterias from certain State licensing requirements. The trial court reasoned that the State had preempted the field of legislation in this area and that the county ordinance was therefore inconsistent with the general law. Article VIII, Section 1, Florida Constitution, provides that counties may enact ordinances not inconsistent with general law.

We have reviewed the general law on the subject as contained in Chapter 509, Florida Statutes, and the county ordinance which requires a permit for the operation of a food establishment. Chapter 509 exempts rather than includes school cafeteria operations and the theory of preemption does not apply. The county ordinance is not inconsistent with the general law stated in Chapter 509, and the trial court thus erred in granting the motion to dismiss with prejudice. The trial court’s order to this effect is reversed and the matter remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

CROSS, J., and SMITH, CHARLES E., Associate Judge, concur.


text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. William J. ST. JOHN, Wang Laboratories, Inc., and William H. Ellis, Appellees.
    No. 77-2528.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Dale O. Morgan of Dean, Ringers, Morgan & Lawton, Orlando, for appellant.
    David B. King of Peed & King, Orlando, for appellees.
   PER CURIAM.

AFFIRMED. See Markert v. Johnston, 367 So.2d 1003 (Fla.1978).

ANSTEAD and LETTS, JJ., and STET-TIN, HERBERT, Associate Judge, concur.


author: DOWNEY, Chief Judge.

text:
    John H. JONES, for the Use and Benefit of State Farm Fire and Casualty Company, Appellant, v. Lawrence Raymond BRADLEY and Standard Guaranty Insurance Company, Appellees.
    No. 77-2157.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Peter M. Evans of Weathers & Narkier, P. A., West Palm Beach, for appellant.
    Margarie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellee-Standard Guaranty Ins. Co.
   DOWNEY, Chief Judge.

John H. Jones was injured in an accident with Raymond Bradley. Jones sued Bradley and his insurer, Standard Guaranty Insurance Company. Standard asserted as a defense that it afforded Bradley no coverage for this accident because it was not notified of the accident some year and one half earlier. Summary judgment was entered for Standard and against Jones.

Jones then made a claim against State Farm Fire & Casualty Company, apparently for uninsured motorist coverage and was paid $14,750 plus $1,783.95 in Personal Injury Protection benefits. Thereupon Jones, for the use and benefit of State Farm Fire & Casualty Company, instituted this suit against Bradley and Standard Guaranty Insurance Company. Standard affirmatively pleaded the same lack of coverage defenses it had earlier asserted and in addition asserted the defense of res judicata and estop-pel by judgment. Summary judgment was entered against Jones and State Farm and in favor of Standard. It is that judgment which appellants seek to overturn by this appeal.

The sole point presented by appellants is: Whether a defendant in a prior lawsuit may successfully rely on the doctrine of res judicata in a subsequent lawsuit where the plaintiff was not a party in the prior lawsuit.

In support of the foregoing point appellant points to the criteria necessary to maintain the defense of res judicata: 1) identity in the thing sued for; 2) identity of the cause of actions; 3) identity of the persons and parties to the actions; and 4) identity of the quality and capacity of the person for or against whom the claim is made. Obviously, the thrust of appellant’s argument concerns category number three, “identity of the persons and the parties to the actions.” All other criteria are clearly met.

It must be conceded that the plaintiff in the first action was not identical to the plaintiff in the second. Jones sued individually for his injuries in the first suit and he proceeds for the use and benefit of State Farm in this second action. But the term parties as used in the doctrine of res judica-ta includes parties and their privies, and privies in this context means persons identified with a litigant in interest.

Turning now to the determination of whether State Farm is in privity with its insured Jones so as to make the judgment against Jones in the first suit binding against State Farm in this suit, we need to determine the status which State Farm occupies vis-a-vis its insured and the tort-feasor Bradley and Standard Guaranty Insurance Company.

The complaint in this case alleges that State Farm, having paid Jones the damages he incurred as a result of Bradley’s negligence, is subrogated to Jones’ rights against Bradley. Thus, as a subrogee, State Farm stands in the shoes of its subrogor and is entitled to all of the rights of its subrogor but also suffers all of the limitations thereunto appertaining. As the Supreme Court of Alabama said in Crutchfield v. Johnson & Latimer :

A person entitled to subrogation must work through the creditor whose rights he claims. He stands in the shoes of the creditor and is entitled to the benefit of all the remedies of the creditor and may use all means which the creditor could to enforce payment.
******
But he can only enforce such rights as the creditor could enforce, and must exercise such rights under the same conditions and limitations as were binding on the creditor, and hence, can be subrogated to no greater rights than the one in whose place he is substituted, (cites omitted)

It could not be seriously contended that Jones individually could maintain a second suit involving this identical cause of action in view of the doctrine of res judicata. Nor can Jones’ subrogee do so since the subro-gee is bound by the same limitations as is Jones.

In Carper v. Montgomery Ward & Co., 123 W.Va. 177, 13 S.E.2d 643 (1941), Carper’s home had been damaged by a furnace negligently installed by Montgomery Ward. Carper sued Ward for the use and benefit of her insurance carrier. Ward asserted the defense of res judicata, alleging that Carper had recovered judgment against Ward for the same damages in a prior action. When this defense was held good the case was appealed. The Supreme Court of West Virginia recognized the four requirements (earlier mentioned in this opinion) for application of the doctrine of res judicata but held the facts presented in that case fulfilled all of those requirements. With reference to the identity of parties plaintiff in the two suits the court said:

We think also that they set forth an identity of parties to the action, as well as identity of the quality in the person for or against whom the claim is made. All three allege that the former action had as defendant therein the defendant in this action; and the fact that the former action was brought by plaintiff in her own right and this action as assignor for the use and benefit of the insurance company does not destroy the identity of party plaintiff in both actions. (Id. 13 S.E.2d at 645).

Similarly, in Auto-Owners Insurance Company v. Atlantic National Insurance Company, 207 So.2d 329 (Fla. 2d DCA 1968), the Hertz Corporation turned one of its automobiles over to Hawkins for servicing. While the automobile was in Hawkins’ control it was involved in an accident injuring several people. The injured parties sued Hertz and Hawkins and recovered a judgment. Hertz then successfully sued Hawkins for indemnity. Hawkins was insured by Auto-Owners and Hertz by Atlantic National. Auto-Owners brought a suit against Atlantic National for declaratory judgment to determine the respective rights of the parties. Atlantic National pleaded among other defenses that of res judicata.

The District Court of Appeal affirmed a judgment for Atlantic National based upon the defense of res judicata because it concluded the liability of Auto-Owners was based upon the liability of Hawkins and Atlantic National’s liability was based upon that of Hertz. As between the two insureds their respective rights had already been determined. Thus, Auto-Owners was liable because Hawkins was liable and the issue could not be relitigated in a new suit by Auto-Owners against Hertz’s carrier, Atlantic National.

The final case we would mention is Gould v. Weibel, 62 So.2d 47 (Fla.1952). Although the case involved a “loan receipt” as opposed to a subrogation claim, some of its language may be helpful here. The defendant therein had moved to require the plaintiff’s insurance carrier to be made a party plaintiff since the carrier had loaned plaintiff an amount equal to his damages and taken back a loan receipt. The trial court required such joinder but the Supreme Court on appeal held that to be error. In commenting on the absence of any necessity to have the carrier as a party the court said:

No contention is here made that the substantive rights of the defendant will be prejudiced by the failure to join the insurers as parties plaintiff, nor that the defendant will be subjected to a second claim for the one wrong; and, indeed, such contentions could not be sustained. The judgments in the instant suits will be final and conclusive and will bar any further action on the same claim by either the plaintiffs or the insurers, even though the insurers had not been joined as parties plaintiff. (Id. at 49).

Therefore, inasmuch as it is clear Jones could not bring this suit individually and as appellant is subrogated to Jones’ rights and limitations it follows that appellant is in privity with Jones. Thus, the defense of res judicata precludes appellant from bringing the second suit and the trial court was correct in entering a summary judgment for Appellee-Standard Guaranty Insurance Company. Accordingly, the judgment appealed from is affirmed.

CROSS and LETTS, JJ., concur.

      . 19 Fla.Jur. Judgments and Decrees, § 111.

      . Ibid. § 154.

      . Ibid. § 156.

      .243 Ala. 73, 8 So.2d 412, 414 (1942).


author: DAUKSCH, Judge.

text:
    AERO MECHANICAL ELECTRONIC CRAFTSMAN and Pacific Automobile Insurance Company, Appellants, v. Lillian PARENT and Victor Parent, her husband, Sears Roebuck and Company, Inc., the Newman Company and American Reserve Insurance Company, Appellees.
    No. 77-2526.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.

      Gerald M. Walsh of Gerald M. Walsh & Associates, P. A., Fort Lauderdale, for appellants.
    Larry Klein, West Palm Beach, and Pysz-ka, Kessler, Adams & Solomon, Fort Laud-erdale, for appellees — Sears Roebuck & Co., Inc., the Newman Co., and American Reserve Ins. Co.
   DAUKSCH, Judge.

This is an interlocutory appeal in a products liability case in which a foreign corporation challenges an order denying its motion to dismiss for lack of jurisdiction. The determinative issue is whether the third party complaint for indemnification or contribution and supporting affidavits allege sufficient facts to warrant the exercise of personal jurisdiction over appellant under the Florida Long Arm Statute relied upon, Section 48.193(l)(f)(2) (1975). Finding those alleged facts to be insufficient, we reverse the denial of appellant’s motion to dismiss.

The plaintiff purchased an allegedly defective portable toilet from a department store in Hollywood, Florida and sustained personal injuries when the product collapsed during normal use. A complaint was filed naming as defendants Sears, Roebuck & Co., Inc., as the retailer, and Newman Importing Co., Inc. as the distributor. The defendants filed a third party complaint impleading the appellant, as a component parts manufacturer, for indemnification or contribution. Appellant is not a Florida corporation, nor is it otherwise licensed to do business in Florida. The appellant, in California, injected plastic into molds submitted to it by an independent plastics company and then shipped the completed plastic toilet seats to another California manufacturing company, Alfa Manufacturing Co., which assembled the seats by attaching steel legs and in turn shipped the completed product to The Newman Importing Co., a California based distributor, who distributed the product to the Sears, Roebuck & Co. in Chicago, who in turn distributed the product to the Sears, Roebuck & Co. department store in Hollywood, Florida, from which the injured plaintiff purchased the product.

The statute provides that a non-resident corporate manufacturer submits itself to the jurisdiction of the courts of this state if it has caused injury to persons or property within this state arising out of its act or omission outside of this state; provided that products manufactured by it outside this state were used or consumed within this state in the ordinary course of commerce, and such , use or consumption resulted in the injury. Under the broadest interpretation, a product could fortuitously reach this state in the ordinary course of commerce without the manufacturer having any reason to anticipate this might happen; for example, where the manufacturer, through a factory outlet, sells directly to an individual who apparently is going to consume the product himself but subsequently sells it. To say that this subjects the manufacturer to the personal jurisdiction of a foreign court would offend “traditional notions of fair play and substantial justice” and thus violate due process. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

An essential element of such ‘fairness’ in our society has always been that a person is not asked to bear a special burden (such as defending in a foreign forum) unless he has done something in a purposeful manner or with such knowledge as to make his deeds the equivalent of purposeful action. In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 226 (6th Cir. 1972).
The later decision in Hanson v. Denckla [357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)], suggested the limits of the International Shoe doctrine, requiring that a defendant must have ‘purposefully avail[ed] itself of the privilege of conducting activities within the forum State if long-arm jurisdiction is to be exercised over him. In-Flight Devices Corp., supra at 225.

A broad interpretation of the present statute would render it unconstitutional since there would be no requirement of even minimal contacts with this state. Florida courts have traditionally required more than just minimal contacts. In construing Section 48.193(l)(f)(2), our courts have required a more substantial contact with Florida than the mere possibility that the product might reach this state. See Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla. 1st DCA 1977); Dunn v. Upjohn Co., 350 So.2d 127 (Fla. 1st DCA 1977). Most recently and the most closely in point is Harlo Products Corp. v. J. I. Case Co., 360 So.2d 1328 (Fla. 1st DCA 1978).

There the plaintiff filed a products liability action and the defendant impleaded a non-resident component parts manufacturer whose only alleged connection with Florida was the manufacturing of component parts which were ultimately used throughout Florida. The first district, consistent with its holdings in Dunn, supra, and Jack Pickard Dodge, Inc., supra, found that the application of Section 48.193(l)(f)(2) to the facts of that case would be unconstitutional because the mere presence in Florida of the non-resident’s product is not a sufficient contact for the assertion of personal jurisdiction over the non-resident by a Florida court. Cf. Hyco Manuf. Co. v. Rotex Int. Corp., 355 So.2d 471 (Fla. 3d DCA 1977).

Here the jurisdictional issue centers around the statutory phrase in the ordinary course of commerce. We also interpret the phrase in the ordinary course of commerce to mean that the non-resident must at least have some reason to anticipate that his product will reach another state in the ordinary course of interstate commerce. The manufacturer could then be said to have acted in a purposeful manner or with such knowledge as to make its deeds the equivalent of having purposefully availed itself of the privilege of conducting activities within our state. See Hanson, supra; In-Flight Devices Corp., supra.

Applying the foregoing to the present case, we find no allegation in the third party complaint that appellant knew or had any specific reason to anticipate that its product would be shipped in interstate commerce when it left appellant’s plant en route to another California manufacturer for further production. Had this and all other necessary jurisdictional facts been alleged in the third party complaint the burden would then shift to the appellant to make a prima facie showing of the inapplicability of the Long Arm statute, whereupon the third party plaintiff would be required to substantiate its allegations. See Electro Engineering Products Co. v. Lewis, 352 So.2d 862 (Fla.1977). In the present case the burden never shifted to appellant since the third party complaint only alleged that the defective product left appellant’s control and ultimately reached the plaintiff.

To say that the third party plaintiffs alleged sufficient jurisdictional facts under Section 48.193(l)(f)(2) is to give that statute a literal, and unconstitutional, interpretation. Although the Florida Supreme Court has upheld the constitutionality of Section 48.193(l)(f)(2) in Electro Engineering Products Co., supra, it did so as applied to facts which demonstrated a much more substantial contact with Florida than that which is alleged here.

Accordingly, we reverse the interlocutory order appealed from and remand this cause with directions to dismiss the third party complaint, without prejudice, for lack of in personam jurisdiction.

REVERSED AND REMANDED.

CROSS and LETTS, JJ., concur.

      . 48.193 Acts subjecting persons to jurisdiction of courts of state.
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
      (f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury either:
      1. The defendant was engaged in solicitation or service activities within this state which resulted in such injury; or
      2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury.