author: KEHOE, Judge.

text:
    HEMISPHERE EQUITY REALTY CO., INC., a/k/a Hemisphere Equity Company, and Dade County, Florida, Petitioners, v. KEY BISCAYNE PROPERTY TAXPAYERS ASSOCIATION, John R. Longmire, Walter Surgeon and Kass Olson, Respondents.
    No. 78-2049.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.

      Fine, Jacobson, Block, Goldberg & Semet, and Martin J. Fine, Miami, Stuart L. Simon, County Atty., and Stanley B. Price, Asst. County Atty., for petitioners.
    John G. Fletcher, Coral Gables, for respondents.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Petitioners, Hemisphere Equity Realty Co., Inc., [hereinafter referred to as Hemisphere] and Dade County, Florida, [hereinafter referred to as Dade] brought this petition for writ of certiorari and motion to compel compliance with mandate seeking review of an order of reversal dated October 10, 1978, entered by the trial court sitting in its appellate capacity. After consideration of the petition, etc., pursuant to Florida Rule of Appellate Procedure 9.100(f), we issued an order to show cause why the relief requested should not be granted. After a hearing and consideration of the pleadings, etc., in this matter, we have determined that the petition for writ of certiorari and motion to compel compliance with mandate should be denied and the order to show cause should be discharged.

This case enjoys a long legal history; see Dade County v. Beauchamp, 348 So.2d 53 (Fla. 3d DCA 1977); and Beauchamp v. Dade County, 42 Fla.Supp. 189 (Fla. 11th Cir.Ct. 1975). The following is a summation of this history:

This matter arose out of a moratorium and zoning rollback on the eastern portion of Key Biscayne, Dade County, Florida. On March 29, 1972, the Dade County Manager, pursuant to the provisions of Section 33-319 of the Code of Metropolitan Dade County [hereinafter referred to as Code], imposed a moratorium in an area extending from Crandon Park on the north to Cape Florida State Park on the south, bounded by Cran-don Boulevard to the west and by the Atlantic Ocean to the east. Petitioner Hemisphere’s property, comprising six acres of the moratorium area, is located just south of Crandon Park and is bounded by Cran-don Boulevard to the west and Ocean Lane Drive to the south.

On September 14, 1973, the Board of County Commissioners of Dade County [hereinafter referred to as Commissioners] adopted Zoning Resolution No. Z-284-73 which rolled back the then existing RU-4 district (50 Units per acre and upwards of 12 stories in height) to an RU-4L classification which permitted 23 units per acre and imposed a height limitation of four stories and 50 feet. Thereafter, Beauchamp, who was petitioner Hemisphere’s predecessor in interest to the subject property, filed a petition for writ of certiorari in the Dade County Circuit Court contesting the rezoning of his property. After a hearing, The Circuit Court granted the petition and ordered that the property be rezoned to a classification not less restrictive than 33 units per acre and a height not less restrictive than would be allowable under the County’s planned unit development ordinance. After this decision, both Beauchamp and Dade County filed appeals to this court. On July 6, 1977, we filed our opinion in Dade County v. Beauchamp, 348 So.2d 53 (Fla. 3d DCA 1977). This opinion held, inter alia, as did the trial court, that the RU-4L classification as applied to the subject property was void, and denied the property owner’s cross appeal whereby he requested an RU-4 classification which would permit 50 units per acre. We further concluded that, if the subject property could not qualify as a planned unit development, it would have to be rezoned so as to permit not less than 36 units per acre. After denying a petition for rehearing, our mandate was issued on August 3, 1977. Thereafter, Dade County requested a clarification in view of the fact that it had no specific zoning designation of greater than 36, but less than 50 units per acre. On September 16,1977, we issued our order on the petition for clarification which changed the 36 units per acre to 35.9 units per acre as provided by RU-4M classification in the Code. Certiorari was denied on December 14, 1977, by the Supreme Court of Florida; however, in January of 1978, an alternative writ of mandamus was issued which was clarified to be an order to show cause. Prior to the return date of this order, both the property owner and Dade County filed a joint motion with the Supreme Court to temporarily relinquish jurisdiction back to the Commissioners to enable the property owner to present a zoning application as a means of resolving the litigation in this matter. This motion was granted, and the matter was heard by the Commissioners on February 9, 1978. After continuing negotiations between the County and the property owner (now Hemisphere), suggested development plans were submitted to the Commissioners. Following a public hearing, the Commissioners adopted Zoning Resolution No. Z-35-78 subject to certain conditions to assure development in accordance with the site plans submitted to the Commissioners. This Resolution reads as follows:

The following resolution was offered by Commissioner William G. Oliver, seconded by Commissioner Clara Oesterle, and upon poll of members present, the vote was as follows:
Neal Adams nay Harvey Ruvin absent
Clara Oesterle aye Barry D. Schreiber aye
William G. Oliver aye Ruth Shack aye
Beverly B. Phillips nay Stephen P. Clark absent
James P. Redford, Jr. absent

WHEREAS, Hemisphere Equity Company has applied for the following:

(1) A district boundary change from RU-4L (Limited Apartment house — 23 units per acre) to RU-4 (Apartments 50 units per acre)
(2) SPECIAL EXCEPTION as applied to height requirements to permit a structure including a one-story parking garage and two towers consisting of 6 and 13 stories with a maximum height of 126' (120' permitted) as an apartment building.
(3) VARIANCE OF LOT COVERAGE REQUIREMENTS to permit the aforementioned development with 43.2% (40% permitted) lot coverage.
(4) VARIANCE OF ZONING REGULATIONS as applied to open space requiring a minimum of 40% to the total lot area, to waive same to permit the aforementioned development with 37.5% landscaped open space at grade.
(5) VARIANCE of Floor area ratio requirements to permit the aforementioned development with 2.05 (2.00 permitted).
(6) VARIANCE of setback requirements to permit the building and parking garage setback 50' (62' required) from the side street (S) property line, setback 33' (62' required) from the side (N) property line and setback 43' (52' required) from the rear (E) property line.
OR IN THE ALTERNATIVE
(7) A district boundary change from RU-4L (Limited Apartment house) to RU-4M (Modified Apartment house — 35.9 units per acre)
(8) SPECIAL EXCEPTION as applied to height requirements to permit a structure including a one-story parking garage and two towers consisting of 6 and 13 stories with a maximum height of 126' (50' permitted) as an apartment building.
(9) VARIANCE of Zoning Regulations as applied to the number of stories to permit the aforementioned two towers, with 6 and 13 stories (4 stories permitted) as an apartment building.
(10) VARIANCE of lot coverage requirements to permit the aforementioned development with 43.1% (30% permitted) lot coverage.
(11) VARIANCE of floor area requirements to permit the aforementioned development with 2.05 (.80 permitted).
(12) VARIANCE of setback requirements to permit the structures including a one story parking garage setback 25' from the front (W) property line, setback 25' from the side street (S) property line, setback 15' from the side (N) property and setback 25' from the rear (C) property line (43' required) from all property line.
AND WITH EITHER REQUEST
(13) VARIANCE of zoning regulations as applied to accessory uses to permit one tennis- court in front of the principle building (not permitted) and setback 50' (75' required) from the front (W) property line.
(14) UNUSUAL USE to permit a gate house.
Plans of the proposed apartment development are on file and may be examined in the Zoning Department entitled, “Commodore IV and V” as prepared by Reiff-Fellman and Associates, Architects — Engineers and dated 1-6-78.
SUBJECT PROPERTY: A tract of land-lying, situate and being in Fractional Section 32, Township 54 South, Range 42 East. Said Tract of land being a portion of Tract 2 of SUBDIVISION OF A PORTION OF MATHESON ESTATE, Key Biscayne, in Plat Book 46 at Page 86. LOCATION: The NE corner of Crandon Blvd. and Ocean Lane Dr., Key Biscayne.
WHEREAS, a public hearing of the Board of County Commissioners, Dade County, Florida was advertised and held, as required by law, and all interested parties concerned in the matter were heard, and
WHEREAS, upon due and proper consideration having been given to the matter, it is the opinion of this Board that the requested district boundary change to RU-4, Special Exception and Variances (Requests 1-6) would be incompatible with the neighborhood and area concerned and would be in conflict with the principles and intent of the plan for development of Dade County, Florida; but that the requested district boundary change to RU-4M, Special Exception and Variances (Requests 7-14) would be compatible with the neighborhood and area concerned and would not be in conflict with the principles and intent of the plan for development of Dade County, Florida.
NOW THEREFORE BE IT RESOLVED by the Board of County Commissioners, Dade County, Florida, that the requested district boundary change to RU-4, Special Exception and Variances (Requests 1-6) be and the same are hereby denied without prejudice.
BE IT FURTHER RESOLVED by the Board of County Commissioners, Dade County, Florida, that the requested district boundary change to RU-4M, Special Exception and Variances (Requests 7-14) be and the same are hereby approved, subject to the following conditions:
1.- That the dedication of rights-of-way shall be made in accordance with Section 33-133 of the Code of Metropolitan Dade County unless the Director of Public Works deems such are not necessary or requires a lesser amount. Improvements shall be made of such rights-of-way in order to comply with and in accordance with the requirements of the manual of Public Works construction, as may be deemed lacking, desirable and necessary by the Public Works Director.
2. That a plot use plan be submitted to and meet with the approval of the Zoning Director; said plan to include among other things, but be not limited thereto, type, height and location of structures, density of occupancy for proposed apartments, off-street parking areas, type and location of signs, landscaping, drainage, ingress and egress drives, etc.
3. That in the approval of the plan, the same be substantially in accordance with that submitted for the hearing as prepared by Reiff-Fellman & Associates entitled “Admiral Club of Key Biscayne.”
4. That the development shall be established and maintained in accordance with the approved plan.
5. That an instrument suitable for recording and meeting with the approval of the Director of the Building and Zoning Department be submitted, to the effect that the property would be developed substantially in accordance with the plans submitted for the hearing unless at some future date, either the zoning or plan of development were modified by public hearing; that said agreement shall be binding on the property owners and all other parties of interest and their successors in title.
6. That a recordable agreement be submitted to and meet with the approval of the Zoning Director providing for permanent and safe access for pedes- ' trian and vehicular traffic within the development and particularly for right-of-aceess for fire, police, health and sanitation and other public service personnel and vehicles. The agreement, which shall be covenant running with the land,.shall also include a stipulation that the streets, or accessways, shall be installed and maintained by the applicant, including, but not limited to, sidewalks, drainage facilities, water, sewers and fire hydrants, meeting with the approval of the Directors of the Public Works and Building and Zoning Departments. Such agreement shall be executed by all parties having and interest in the land and its improvements.
The Zoning Director is hereby directed to make the necessary changes and notations upon the maps and records of the Dade County Building and Zoning Department and to issue all permits in accordance with the terms and conditions of this resolution.
PASSED AND ADOPTED this 9th day of February, 1978.

Subsequently, the Key Biscayne Property Taxpayers Association, John R. Longmire, Kass Olson, and Walter Surgeon appealed the Resolution to the circuit court. Thereafter, the circuit court entered an order of reversal which reads as follows:

“In Dade County v. Beauchamp, 348 So.2d 53, 55 (Fla. 3rd DCA 1977), cert. den., 355 So.2d 512 (Fla.1978), the Third District Court of Appeal required, in effect, that the property involved in this case be rezoned ‘to a classification not less than 35.9 units per acre;’ that is, to classification RU-4M. While that litigation was still pending in- the Supreme Court, the landowner and the County reached what the County refers’ to as a ‘meeting of the minds’ concerning the development of the area; this agreement was embodied in Zoning Resolution No. Z-35-78 which was enacted by the County Commission on February 9, 1978 and which is now challenged in this proceeding.. Under the resolution which in fact rezoned the property to RU-4M, the property owner was granted the right to build two buildings of six and thirteen stories each in accordance with plans it had submitted to the County staff. The plans, however, required, and the resolution provided, the granting of a ‘special exception’ to the 50' height limitation provided in the RU-4M zone, and numerous ‘variances’ from pertinent requirements relating to the number of stories permitted, lot coverage, floor area, setbacks and accessory uses.
“While we agree that there has been no showing of error in the granting of the ‘special exception’ challenged here, see B. S. Enterprises, Inc. v. Dade County, 342 So.2d 117 (Fla. 3rd DCA 1977); Ollos v. Dade County, 242 So.2d 468 (Fla. 3rd DCA 1970); we reach a contrary conclusion concerning the ‘variances’ in question and therefore reverse those portions of the resolution which granted them. We do so simply because as seems to be conceded by everyone, the record shows that there is no legally cognizable ‘hardship’ required both by the terms of the then-applicable Code provision, § 633.311(e), and the controlling cases, in order to justify the variances in question. These authorities, notably Josephson v. Autrey, 96 So.2d 784 (Fla.l957) and Elwyn v. City of Miami, 113 So.2d 849 (Fla. 3rd DCA 1959), specifically hold that ‘variances’ may not be sustained in the absence of a non-self created characteristic, or ‘hardship,’ of the property in question, which renders it virtually impossible to use the land for the purpose or in the manner for which it is zoned. No such characteristic appears in this record.
“The respondents-appellees argue that the ‘hardship’ cases apply only to so-called ‘use variances,’ as opposed to the ‘non-use variances’ involved in this case. The law is otherwise. Indeed, the proposed distinction was specifically rejected by the Third District itself, in interpreting similar Miami Beach zoning provisions in Allstate Mortgage Corp. of Florida v. City of Miami Beach, 308 So.2d 629, 632 (Fla. 3rd DCA 1975), where the court said:
‘It is true that in Josephson the issue centered on a land use variance, while the issue in the instant case concerns a set-back variance. The zoning ordinance for the City of Miami Beach quoted supra does not attempt to distinguish land use variances from setback variances. They are, rather, mentioned in the same paragraph and are subject to the same standards for granting a variance. Therefore,’ we find no reason to distinguish the instant case from Josephson on the basis of the type of variance requested.’
See also, Snyder v. Waukeska County Zoning Board of Adjustment, 74 Wis.2d 468, 247 N.W.2d 98 (1976); Karasik v. City of Highland Park [130 Ill.App.2d 566], 264 N.E.2d 215 (Ill.App.1970).
“The appellees also claim that the prior litigation concerning this property somehow vests the property owner with, at least, the right to the variance as to the number of stories permitted in the area. Again, we disagree. We find nothing in the prior decisions in this case which provides for anything beyond the RU-4M classification, which the owner was granted, but which does not carry with it the departures from the requirements of that zone which were improperly approved by the Commission.
“In accordance with these views, paragraphs 9-13 of the Dade County Zoning Resolution No. Z-35-78 are hereby REVERSED and QUASHED.”

Petitioners’ motion to amend the order of reversal was denied. From the order of reversal, petitioners brought the instant petition for writ of certiorari and motion to compel compliance with mandate.

In their petition, petitioners assert (1) that the circuit court departed from the essential requirements of law in denying the property owner the relief to which this court [in Dade County v. Beauchamp, 348 So.2d 53 (Fla. 3d DCA 1977)] had previously held it was entitled, to-wit: to use the subject property in a manner consistent with surrounding property; and (2) that the circuit court departed from the essential requirements of law by permitting respondents to maintain an action, i. e., the appeal by them of zoning Resolution No. Z-35-78, despite their lack of standing to sue.

In our opinion, as found by the trial court, the individual petitioners, i. e., Long-mire, Olson, and Surgeon, had standing to maintain the action below; however, the Key Biscayne Property Taxpayers Association, Inc., lacked such standing. These individual residents were within the notice requirement area of the Code and, because of the proximity of their property to the subject property, the character of the neighborhood, and the type of zoning proposed, stood to suffer special damages from the effects of the zoning of the subject property. See Skaggs-Albertson’s v. ABC Liquors, Inc., 363 So.2d 1082 (Fla.1978); Renard v. Dade County, 261 So.2d 832 (Fla.1972); and Pensacola Scrap Processors, Inc. v. State Road Department, 188 So.2d 38 (Fla. 1st DCA 1966).

Further, in our opinion, the circuit court in its order of reversal properly ruled that Paragraphs 9-13, inclusive, of Dade County Zoning Resolution No. Z-35-78 should be reversed and quashed. As found by the circuit court, the property owner, petitioner Hemisphere herein, failed to demonstrate any legally cognizable hardship to support the granting of the variances contained in paragraphs 9-13 of the Ordinance. Without such a showing, the variances could not be validly granted by the Commission. See Josephson v. Autrey, 96 So.2d 784 (Fla.1957); Allstate Mortgage Corporation of Florida v. City of Miami Beach, 308 So.2d 629 (Fla. 3d DCA 1975); and Elwyn v. City of Miami, 113 So.2d 849 (Fla. 3d DCA 1959); and Section 33-311(e), Code of Metropolitan Dade County.

For the reasons set forth above, the petition for writ of certiorari and motion to compel compliance with mandate are denied and the show cause order is discharged.

      . We reject the respondents’ contention concerning the individual petitioners’ lack of standing to maintain this action and therefore will consider the case on its merits.


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    Harry L. WILSON, Appellant, v. DADE COUNTY, Board of County Commissioners of Dade County, Florida, and Steven A. Schultz, Appellees.
    Nos. 78-2365, 79-339.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Dennis M. O’Connor, Coral Gables, E. M. Short, Jr., Miami, for appellant.
    Stuart L. Simon, County Atty., for Dade County.
    Steven A. Schultz, in pro. per.
    Before- HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

On April 16, 1979, this court issued an order reversing a temporary injunction entered by the trial court which had the effect of precluding the holding of a referendum election on a “millage roll back” ordinance which had been proposed by an initiative petition. The purpose of this opinion is to explain the reasons for that order.

The petition, which has secured the requisite number of voter signatures provided by Article 7, § 7.01(2) of the Dade County Charter, proposed the adoption of the following ordinance:

“Section 1. The County Millage for the 1979-1980 Fiscal Year shall be four mills per $1,000.00 on all property subject to ad valorem tax in Dade County, Florida, as the Millage fixed and determined to be levied for all County operating purposes. Section 2. This ordinance does not determine the Millage for County Bonded Debt Service or the Library District Fund, or other special District Millages. Section 3. This ordinance shall be included in the Dade County Code.
Section 4. This ordinance shall take effect at the beginning of the next succeeding Fiscal Year, on October 1, 1979.”

Before the county commission could act officially upon the initiative petition, Steven A. Schultz, one of the present appellees, filed suit “against” the commission to enjoin the calling of a special election on the proposed ordinance. The basis of the complaint was that the ordinance would be, if adopted, “illegal and invalid” as in violation of several designated provisions of the Florida statutes, and that the expenditure of public funds for the election would therefore be wasteful and damaging to the plaintiff in his capacity as a Dade County taxpayer. It soon appeared that the county was no more than a nominal party defendant; its position was in full accord with that of Mr. Schultz as to the merits of his complaint. Acting as a third-party plaintiff, the county then filed a third-party complaint against Harry Wilson, a citizen who had acted as the prime mover of the proposal in question. Like Schultz, the county sought a declaratory judgment that the proposal was invalid and that it was not required or permitted to submit it to the electors for adoption or rejection. After a great deal of procedural pushing and hauling, which our disposition of the case makes it unnecessary to detail, the trial judge granted the relief sought by Schultz and the county; he declared the ordinance invalid and entered a temporary injunction against the county forbidding a referendum on the proposal. Wilson, pursuant to F.R. App.P. 9.130(a)(3)(B), brought this interlocutory appeal to review the injunctive order.

Our reversal of the injunction is based solely upon the holding that, on the facts presented, the trial court was not authorized by the applicable law prospectively to interfere with the electoral process by precluding a decision of the voters on the proposed ordinance. Our discussion necessarily begins with a statement of the general rule which we expressed very recently in Metropolitan Dade County v. Shiver, 365 So.2d 210, 212 (Fla.3d DCA 1978):

“The law is well-settled that a court of equity as a general rule will not restrain the holding of an election because a free election in a democracy is a political matter to be determined by the electorate and not the courts. City of Deland v. Fearington, 108 Fla. 498, 146 So. 573 (1933); Joughin v. Parks, 107 Fla. 833, 143 So. 145 (1932); Dulaney v. City of Miami Beach, 96 So.2d 550 (Fla.3d DCA 1957).”

As Shiver goes on to point out, the “[ljimit-ed exceptions to this rule have been recognized . . . only on the narrowest of grounds.” The case at bar falls within none of these limited, narrow exceptions. There is no issue, for example, as to the propriety of the form of the initiative petition, the manner in which it was circulated, nor of the validity or sufficiency of the numbers of voters who signed it. Compare City of Miami Beach v. Herman, 346 So.2d 122 (Fla.3d DCA 1977). Nor does this case involve a finding that the proposal was in any way unconstitutional, as was true in both Adams v. Gunter, 238 So.2d 824 (Fla.1970), and Duval County v. Jennings, 121 Fla. 584, 164 So. 356 (1935); see Dade County v. Dade County League of Municipalities, 104 So.2d 512 (Fla.1958); cf. Rivergate Restaurant Corp. v. Metropolitan Dade County, 369 So.2d 679 (Fla.3d DCA 1979). Neither appellee even claimed, and the trial judge did not hold, that the proposed ordinance was in violation of any provision of either the Florida or the United States constitution.

The appellees rely, however, upon statements in several decisions of this court which suggest that an election may be enjoined “if the ordinance proposed was clearly invalid on its face.” Dulaney v. City of Miami Beach, 96 So.2d 550, 551 (Fla.3d DCA 1957); see City of Miami Beach v. Smith, 251 So.2d 290, 292 (Fla.3d DCA 1971), cert. denied, 257 So.2d 561 (Fla.1971); cf. Lalor v. Dade County, 258 So.2d 843, 845 (Fla.3d DCA 1972). None of these cases actually precluded an election based on such a determination; in fact, there appears to be no Florida appellate decision whatever which has done so. Thus, we agree with the appellant that these statements are no more than dicta. It is not necessary, however, to decide whether we would apply the dicta in a proper case, because this case plainly does not come within the language in question. While we express no view whatever as to the proper resolution of the issues, we do find that the contentions made by Wilson in response to the appellees’ claims that the proposal is contrary to various aspects of Florida statutory and decisional law are, at least, substantial and non-frivolous. The alleged invalidity surely does not “clearly” appear “on the face” of the proposed ordinance. Since this is true, the holding in the Dulaney case, supra, at 96 So.2d 551-552, that the courts may not under such circumstances interfere with an election in advance, applies and controls:

“There is a vast difference between the question of the legality of the election and the validity of the ordinance that might result. It would be true that an election held to pass an ordinance which was later held to be invalid would be useless, but it would not follow that such an election was illegal. An election should not be held if the ordinance proposed was clearly invalid on its face. In the instant case such a certainty does not exist. It follows that the validity of the proposed ordinance can best be considered not under an injunction proceeding hastily brought and defended prior to an election already called, but in a suit brought for that purpose by affected property owners.”

Of course, we express no opinion as to the wisdom of the proposed ordinance; that is a matter for the electorate. And we reemphasize that we also express no opinion as to its ultimate validity; that is a matter which may properly be decided only if the electorate votes in its favor. We simply hold that, just as the courts may not interfere with the mere prospective adoption of a statute or ordinance by the legislature or commission, it is improper to enjoin the electorate from passing upon a proposal which is at least arguably valid and which is not challenged on constitutional grounds. The appellees argue that to permit an election on an ordinance which may later be held invalid is to allow and encourage what may be a totally purposeless act. We cannot agree that the right of the voters to express their views on an issue properly presented for their consideration may be so easily dismissed. To the contrary, the interposition of the courts in the midst of the political process, particularly that part of the process which involves a proposed democratic election, is unwise and properly disfavored. We find no basis for a deviation from that rule in this case.

Accordingly, the temporary injunction under review is reversed and the cause remanded with directions to dismiss the complaint and the third-party complaint. Since we do not pass upon the validity of the proposed ordinance, and hold that the circuit court likewise should not have done so, the dismissal is to be effected without prejudice to a subsequent determination of that issue if it becomes appropriate and necessary to rule upon it; that is, if, and only if, the electorate approves the ordinance at the polls.

Reversed and remanded with directions.

      . Our case no. 78-2365 is an interlocutory appeal from an order below which denied Wilson’s motion to dismiss the amended third-party complaint brought by the county. We find that there is no jurisdiction to review this non-final order under F.R.App.P. 9.130 and therefore dismiss that case.

      . The injunction was “temporary” rather than “permanent” only because the pendency of case no. 78-2365 in this court prevented the trial court from entering a final judgment disposing of the case. F.R.App.P. 9.130(f).

      . The only Florida decisions which have ordered an issue off the ballot because of the invalidity of the proposed enactment, Adams v, Gunter, supra, and Duval County v. Jennings, supra, were both based upon constitutional grounds. An affirmance of the order below, which precludes an election because of a finding of non-constitutionally-based illegality, would therefore be unprecedented in our state.

      . Because the issue is not before us, we likewise have no comment as to the mechanics or timing of the referendum election to be held on the proposal.


author: PER CURIAM.

text:
    Stephen D. McCALL, Appellant, v. STATE of Florida, Appellee.
    No. 78-1092.
    District Court of Appeal of Florida, Second District.
    April 18, 1979.
    •Jack O. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction, but we remand the case so that the trial court may set aside the order assessing costs against appellant. Since the court had adjudged appellant to be insolvent, it was not authorized to assess costs against him. § 939.15, Fla.Stat. (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.


author: RYDER, Judge.

text:
    Roswell C. MERRITT, Appellant, v. Lillian E. MERRITT, Appellee.
    No. 78-2103.
    District Court of Appeal of Florida, Second District.
    April 18, 1979.

      Roger C. Benson of Benson & Dillon, St. Petersburg, for appellant.
    Philip R. Lazzara of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, P.A., Tampa, for appellee.
   RYDER, Judge.

Roswell Merritt appeals the dismissal of his petition for dissolution of marriage alleging that he met the statutory jurisdictional requirements at the time of the filing of his petition and need not show subsequent continuing Florida domicile. We agree and reverse.

Appellant resided in Florida for one year before filing his petition and provided the requisite proof of residency. Nearly a year after filing the petition, but before the final hearing, appellant left Florida to become a resident of California. The trial court found the subsequent abandonment of Florida domicile to defeat jurisdiction to decide the merits of the petition and dismissed the petition.

Florida courts have apparently not addressed this exact question before, but the courts of other states have resolved the issue. Generally, change of domicile by the party seeking a divorce during thé penden-cy of the litigation does not divest a court of jurisdiction. Baker v. Baker, 166 Conn. 476, 352 A.2d 277 (1974); Brewer v. Brewer, 205 Ga. 759, 55 S.E.2d 147 (1949); Hawkins v. Hawkins, 462 S.W.2d 818 (Mo.App.1970). This result gains further weight from general textual material. See The Florida Bar Continuing Legal Education, Florida Family Law § 20.4 (1972); 24 Am.Jur.2d Divorce and Separation § 256 (1966); Cases cited in Annotation, Effect on Jurisdiction of Court to Grant Divorce, of Plaintiff’s Change of Residence Pendente Lite, 7 A.L.R.2d 1414 (1949).

Additionally, we note that there is no common law right to divorce; the action is entirely dependent on statute. See Cases cited in 24 Am.Jur.2d Divorce and Separation § 240 (1966). The only jurisdictional requirement imposed by statute in Florida is that contained in Section 61.021, Florida Statutes (1977). Appellant met that requirement by showing residency for the six month period. A showing of residency sufficient to meet the statutory requirement satisfies the jurisdictional question so that petitioner may obtain recognition of the judgment in other states under the full faith and credit clause of the United States Constitution. Shiffman v. Askew, 359 F.Supp. 1225 (M.D.Fla.1973), aff’d sub nom., Makres v. Askew, 500 F.2d 577 (5th Cir.1974); Caizza v. Caizza, 291 So.2d 569 (Fla. 1974), cert. denied, 420 U.S. 907, 95 S.Ct. 825, 42 L.Ed.2d 836 (1975). Since the statutory requirement was met, the lower court erred by considering other aspects of appellant’s domicile.

We hold that a showing of the statutory residency requirement at the time of filing the petition provides the court with jurisdiction. A later change of domicile of the petitioner before the final hearing does not divest the court of jurisdiction. Cf. Ramsey v. Lovett, 89 So.2d 669 (Fla.1956); 1 J. Pomeroy, Equity Jurisprudence § 181 (1905); Cases cited in Annotation, 7 A.L. R.2d 1414 (1949).

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


text:
    Emilio XIQUES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 78-181.
    District Court of Appeal of Florida, Second District.
    April 18, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Emilio Xiques, Jr., appeals the summary denial of his motion for credit reduction of sentence brought pursuant to Fla.R.Crim.P. 3.850. In his motion appellant sought to have the trial judge credit his sentence with time served before the date he was sentenced. We reverse.

The judgment and sentence of the court, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1977). Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

The order denying appellant relief on his motion is reversed, and the case is remanded for correction of the sentence.

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.


author: MELVIN, Judge. ROBERT P. SMITH,

text:
    ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY and Robert Martin, Appellants, v. Betty P. WHITE, as administratrix of the Estate of Roy Kirk White, Deceased, Appellee.
    No. HH-152.
    District Court of Appeal of Florida, First District.
    April 19, 1979.

      Robert P. Gaines, of Beggs & Lane, Pensacola, for appellants.
    Louis K. Rosenbloum and Lefferts L. Ma-bie, Jr., of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, and Norton Bond, Pensacola, for appellee.
   MELVIN, Judge.

The appellant, the St. Louis-San Francisco Railway Company (the Railroad), takes this appeal from an adverse final judgment awarding, inter alia, the four minor children of the decedent, White, who perished in a grade crossing accident with one of the Railroad’s trains, damages totaling $280,-000. As grounds for reversal, the Railroad urges the following six points: 1) That evidence of the accident site speed limit adopted by the Railroad should not have been admitted over objection; 2) that the court’s instruction that a violation of Section 351.03 constituted negligence was error; 3) that the court’s instruction that violation of an industry standard was evidence of negligence was error; 4) that exclusion of the last sentence of Section 316.171, Florida Statutes, in the court’s instructions to the jury on statutory crossing warning requirements was error; 5) that the damages awarded were so grossly excessive as to require a new trial; and 6) that the trial court erred in denying the Railroad’s motion for directed verdict. For the reasons stated we find appellant’s arguments to be unpersuasive and affirm.

This crossing accident occurred at the intersection of Meadows Road and the Railroad’s tracks in northern Escambia County on June 16,1974. Meadows Road is a rural, two-lane road running in an east/west direction at the crossing site, while the Railroad’s single set of tracks run generally in a north/south direction and cross the road at approximately 90 degrees.

On the day of the fatal accident, White’s truck, which was moving from west to east on Meadows Road at approximately 45 miles per hour, was struck by the Railroad’s train, which was running from north to south. Although it was still daylight and the weather was apparently not a eontribu-ting factor in the accident, visibility, or the lack of it, was a significant factor leading to the collision. The photographs and survey evidence introduced show that as White approached the crossing, his field of vision of the northern section of the track and, thus, of the approaching train was almost totally obstructed by the heavy woods and bushes contained within the northwest quadrant of the intersection. The same trees and bushes had the effect of camouflaging the western section of Meadows Road and White’s approaching pickup truck from the view of the train’s crew. Indeed, the evidence reveals that neither White nor the train’s crew could have had an unobstructed view of any significant portion, respectively, of the track or road until each was within 50 to 25 feet of the crossing.

Approaching the crossing from the west, there is a standard Department of Transportation railroad advance warning sign some five feet to the right of the road and 222 feet west of the tracks. This sign is simply a 36-inch yellow disc marked with a black X flanked by a black letter R to the left and right. Five feet beyond and 20 feet to the right of the DOT sign there is a rectangular warning sign of the ■ type described in Section 316.171. The surface of this sign, however, is so obliterated by age and rust that its warning is incomprehensible. Beyond this sign, there is nothing: No lights, gates or even the standard black and white crossbuck warning sign to mark the location of the tracks.

The court denied the Railroad’s motion for directed verdict and submitted the case to the jury, which found the Railroad 70% negligent, White 30% negligent and damages to White’s four minor children at $100,000 each. Accordingly, the court entered a judgment for $280,000 against the Railroad.

At trial, the plaintiff introduced a mechanical speed tape from one of the train’s three engines that indicated that the train was running at 40 miles per hour immediately prior to the application of its emergency brakes. This evidence was contradicted by the testimony of the train’s engineer that he was only going 32 or 33 miles per hour. Over the objection of the Railroad, plaintiff was also allowed to introduce an operating rule of the Railroad specifying a speed of no more than 35 miles per hour for the crossing area. The Railroad urges that its speed limit was immaterial and, therefore, improperly admitted into evi-clence.

A jury question on negligence is presented when there is evidence that the train involved in a crossing accident was operating at a speed in excess of its speed limit. In Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187 (Fla.1977), the defendant railroad was found to have been exceeding its own 20 mile per hour speed regulation by 5 miles per hour at the time of the crossing accident. At trial, the issue of the train’s speed was presented to the jury, which found for the plaintiff Helman. On appeal to the District Court of Appeal, the trial court was reversed, the District Court finding it “. . abundantly clear that the excessive speed was not the proximate cause of the collision.” (Seaboard Coast Line Railroad Co. v. Helman, 330 So.2d 761 at 765). Finding that the District Court had improperly reweighed and reevaluated the evidence, our Supreme Court reversed stating:

. . Because there was some competent evidence to support the jury verdict that respondents were- negligent in traveling at an excessive speed and in failing to sound their whistle when required, the jury was concomitantly imbued with the function of deciding whether such negligence was a proximate cause of the injury. . . .” (349 So.2d at 1190)

In the instant case, there was competent evidence presented to the jury from which it could have found that the railroad was exceeding its own speed limit by at least five miles per hour. Therefore, the Railroad speed limit was properly presented to the jury. See also Martin v. Favorato, 79 So.2d 780 (Fla.1955); Leslie v. Atlantic Coast Line Railroad, 103 So.2d 645 (Fla. 1st DCA 1958); and Seaboard Coast Line R. Co. v. Buchman, 358 So.2d 836 (Fla. 2d DCA 1978).

In charging the jury in this case, the trial court stated that if the jury found that the Railroad had violated Section 351.03, Florida Statutes (requirement to place cross-bucks) such violation was negligence per se. The court went on to instruct that if the jury found such negligence to exist, they must then determine whether such negligence was the legal cause of the injury. The Railroad urges the giving of this instruction over its objection as reversible error. We disagree.

In deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973), the Court considered the trial court’s instruction that violation of a railroad safety statute was negligence per se. Specifically, the trial court had instructed that a violation of Section 357.08, Florida Statutes, which required, during the hours of darkness, the marking of trains blocking public roads by the use of a lighted fuse or other visual warning device, was negligence. In finding for deJesus, the Supreme Court upheld the trial court’s instruction finding that a violation of any statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury is negligence per se, although not necessarily actionable negligence.

In Duncan v. Monark Boat Company, Inc., 330 So.2d 843 (Fla. 1st DCA 1976), this Court held that violation of Section 371.60, Florida Statutes (boat safety statute) was negligence per se, See also Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1977), cert. den. 348 So.2d 946 (Fla.1977) (affirming the giving of a negligence per se instruction with respect to a violation of the Dade County Fire Prevention and Safety Code) and Florida Freight Terminals, Inc. v. Cabanas, 354. So.2d 1222 (Fla. 3d DCA 1978) (finding error in refusing to give instruction that violation of applicable Federal Aviation Administration regulation was negligence per se).

Death may not be left, without any required warning, to stalk unfettered a railroad-highway intersection.

We hold that Section 351.03, Florida Statutes, was enacted to protect the motoring public from collisions with trains by requiring the placement of crossbucks to warn of the existence of, and to locate the railroad’s tracks and that violation of such statute is negligence per se. deJesus, supra.

Also while instructing the jury, the court stated:

“. . . violation of a standard prescribed by an industry is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that the railroad violated such standards, you may consider that fact together with the other facts and circumstances in determining whether such person was negligent.”

As stated earlier, there .was no railroad-supplied, crossing protection equipment at the site of this fatal accident, the sole warning to the public of this crossing being the yellow D.O.T. advance warning signs. The industry standard referred to in the court’s instruction recommended as mandatory the placement of railroad-highway crossing signs (crossbuck) at all crossings.

In our earlier opinion in St. Louis-San Francisco Railway Company v. Burlison, 262 So.2d 280 (Fla.App.1972), cert. den. 266 So.2d 350 (Fla.1972), this Court considered and rejected the railroad’s argument regarding the admissibility of industry standards, stating:

“The evidence adduced concerning recommended signalization and defendant’s failure to provide the recommended signalization is, standing alone, sufficient evidence upon which the jury’s finding of negligence can rest. We do not hold that failure to conform one’s own practices with those generally recognized by an industry safety council or committee is negligence per se. We hold merely that evidence of noncompliance can be considered by the jury which may, but need not, find negligence as a result of the failure to follow a generally recognized safety rule.
We can assume that in promulgating the safety rule in question, the American Association of Railroads consulted with leading experts in the field of railroad highways crossings and garnered from their facts and recommendations an acceptable standard of conduct tending to preserve the safety of the highway using public, evolving standards with which an operating railroad could conform without unduly restricting its operational or fiscal capacities.” (262 So.2d at 281)

In Florida Freight Terminals, Inc. v. Cabanas, supra, the District Court of Appeal, Third District, held it reversible error for the trial court to refuse to instruct that violation of an applicable Federal Aviation Administration (FAA) regulation was negligence per se. The particular regulation made the pilot in command responsible for the tying-down of all cargo to eliminate the possibility of its shifting. Evidence presented at trial indicated that the plane’s load of Christmas trees had shifted to the rear, upon takeoff, causing the plane to crash. Florida Freight requested that the jury be instructed that violation of the FAA regulation was negligence per se; however, the court denied the request and, instead, instructed that violation of the regulation was non-conclusive evidence of negligence. Extending the rationale of deJesus v. Seaboard Coast Line Railroad Company, supra, and Sloan v. Coit International, Inc., 292 So.2d 15 (Fla.1974), that it is negligence per se to violate a statute designed to protect a particular class of persons from their inability to protect themselves or to violate a statute which establishes a duty to take precautions to protect a particular class of persons from a particular type of injury, the District Court held that the jury should not have been at liberty to decide that violation of the regulation was not negligence and reversed because the trial court refused to give the per se instruction.

We need not go as far as Florida Freight. The requirement to place cross-bucks is established by statute and by industry standard. We have already held that the court may instruct that a violation of the statute (Section 351.03) is negligence per se. We have also held that violation of an industry standard is admissible as evidence of negligence. St. Louis-San Francisco Railway Company v. Burlison, supra. We see no detriment to the appellant by the trial court instructing that violation of an industry standard is evidence of negligence. Conversely, it would appear proper to instruct that compliance with a standard is non-conclusive evidence of freedom of liability. Accordingly, we hold that it was not error to instruct that a violation of an industry safety standard is non-conclusive evidence of negligence.

Also, while instructing the jury in this case, the trial court read the following portion of Section 351.03, Florida Statutes:

“Every railroad company shall exercise reasonable care for the safety of motorists whenever its track crosses a highway and shall put up large signboards at or near said crossing with the following inscription in large letters on both sides of the boards: LOOK OUT FOR THE CARS! . . .All motorists approaching a railroad crossing shall exercise reasonable care for their own safety and that of their passengers and for the safety of railroad train crews operating trains across such crossings.”

A proviso of Section 351.03, Florida Statutes, not read to the jury stated:

“This requirement for posting signs shall not apply to railroad crossings having signs as required by s. 316.171.”

Section 316.171, Florida Statutes, states:

“Signs at dangerous crossings. Every railroad company operating or leasing any track intersecting a public road at grade and falling within the purview of ss. 316.158 and 316.159 shall place and maintain a suitable signboard on each side of the track or tracks on the right side of the highway not less than 10 feet from the ground and 40 inches by 50 inches, 200 feet from the crossing, which said board shall be painted with black lettering and white background with the following inscription thereon: STOP— RAILROAD CROSSING — FLORIDA LAW. For use at night the signboard shall be equipped with a suitable mirror reflector of such size, color, and description as may be approved by the department of transportation for use at railroad crossings, so designated that same will reflect the rays of a motor vehicle headlight. Where railroad warnings signs have already been placed, or shall hereafter be placed, at any railroad crossing by the department of transportation, the railroad companies shall not be required to erect or maintain additional signs or reflectors at such crossings.” (Emphasis added)

The Railroad, argues, unpersuasively, that the trial court erred in giving the instruction on Section 351.03, Florida Statutes, without including the proviso referring to Section 316.171, Florida Statutes, urging that, because the D.O.T. had erected advance warning signs at the accident crossing, in the instant case, it (pursuant to the above, underlined sentence of Section 316.171) was not liable to erect any warning signs at the crossing.

Section 316.158, Florida Statutes, authorizes the Department of Transportation to designate particularly dangerous highway grade crossings for the purpose of erecting traffic control devices. Section 316.171, Florida Statutes, requires a railroad to erect a special signboard at such D.O.T.-declared, dangerous crossings, unless the D.O.T. has already placed railroad warning signs at such crossings.

Had this particular crossing been designated as a dangerous crossing pursuant to Section 316.171, the Department of Transportation could have placed its own railroad warning signs at the actual site of the crossing, as well as the yellow, circular advanced warning signs. Had the D.O.T. placed such crossing site warning signs, the crossbucks required by Section 351.03 would be rendered unnecessarily duplicative and the railroad would have been relieved of its duty to place the crossbucks by the operation of the above, emphasized sentence of Section 316.171. If the crossing in this case had been declared dangerous pursuant to Section 316.171 and the D.O.T. had not placed warning signs at the crossing site the Railroad would still have been under a statutory duty to place crossbucks pursuant to Section 351.03.

However, in the instant case it was stipulated to by the parties and testimony was heard from an expert witness of the D.O.T. to the effect that not only had the instant crossing not been declared dangerous but, indeed, at the time of trial, no crossing in the State of Florida had been declared dangerous pursuant to Section 316.158, Florida Statutes.

Thus, the D.O.T., while it did place advance warning signs some 222 feet in advance of the crossing, was not required to, and did not, place railroad warning signs at the actual crossing. It remained the Railroad’s responsibility to mark the crossing site with crossbucks as required by Section 351.03 and it failed to do so. Accordingly, its reliance upon Section 316.171 is totally without merit. See McArthur v. St. Louis-San Francisco Railroad Co., 306 So.2d 575 (Fla. 1st DCA 1975), cert. den. 316 So.2d 293 (Fla.1975).

Appellant’s point that the award of $280,000 to the decedent’s four minor children for his wrongful death is excessive is without merit. Bould v. Touchette, 349 So.2d 1181 (Fla.1977); City of Miami v. Jiminez, 266 So.2d 46 (Fla. 3d DCA 1972).

Lastly, the Railroad’s argument that the trial court erred in not granting its motion for directed verdict is without merit. Seaboard Coast Line R. Co. v. Buchman, supra.

Appellee’s cross-assignment of error has been considered and is, in our opinion, without merit.

AFFIRMED.

BOOTH, J., concurs.

ROBERT P. SMITH, Acting C. J., specially concurs.

ROBERT P. SMITH,

Acting Chief Judge, specially concurring:

I concur in the judgment of affirmance and in the Court’s disposition of all issues except the propriety of charging the trial jury that any violation by the railroad of an “industry standard” is “evidence of negligence.” Such a charge is an argumentative comment on the evidence, which in Florida is the function of trial counsel, not that of the trial judge. Although I cannot regard the charge as harmful in the particular circumstances of this case, it was error nonetheless; and I deplore our reversion to the discredited and abandoned practice of bestowing judicial favor on certain evidence by charges to the jury. For the same reason I disagree with the majority opinion’s decision that:

Conversely, it would appear proper to instruct that compliance with a standard is non-conclusive evidence of freedom of liability.

This is not to say that violation of an industry standard is not evidence of negligence. Of course it is. St. Louis-San Francisco Railway Co. v. Burlison, 262 So.2d 280 (Fla. 1st DCA 1972, cert. den., 266 So.2d 350 (Fla.1972). But that is no reason for the trial judge to sing a duet with claimant’s lawyer. Nor, if there is evidence that the railroad complied with an industry safety standard, is that an occasion for. the trial judge to give an “on the other hand” charge distinguishing that evidence from all the evidence from which the jury is to infer negligence or the lack of it. Evidence of an industry standard is simply evidence, and it neither requires nor justifies judicial comment. As the railroad’s counsel said in objecting to the charge given in this case,

Jumping off a roof is evidence of negligence on the part of the jumper, too, but the Court wouldn’t give any instructions [on] that fact. This is nothing more than common known [sic; comment on] evidence.

And as I wrote in an analogous case,

But while any jury will likely infer negligence when a driver runs down a pedestrian, it is hardly thought necessary or appropriate — at least, not yet — that the trial judge should incite such a finding on a jury issue by a res ipsa charge.

Dayton Tire and Rubber Co. v. Davis, 348 So.2d 575, 589-90 (Fla. 1st DCA 1977) (dissenting opinion), reversed, 358 So.2d 1339 (Fla.1978).

For decades our Supreme Court has disapproved judicial comment on the evidence. Lithgow Funeral Centers v. Loftin, 60 So.2d 745 (Fla.1952); Florida East Coast Ry. Co. v. Carter, 67 Fla. 335, 65 So. 254 (1914); Williams v. Dickenson, 28 Fla. 90, 9 So. 847 (1891). In 1967 the Court strengthened that commitment by generally approving “the theory and technique of charging civil juries as recommended by the Committee [on Standard Jury Instructions, Civil] and embodied in its proposed instructions.” In the matter of the use by the trial courts of the Standard Jury Instructions, 198 So.2d 319 (Fla.1967); Fla.Std. Jury Instr. (Civil) at v (order of April 19, 1967). The central “theory and technique” so approved was:

[T]he trial judge will define negligence for the jury as briefly and as generally as accuracy permits, not with a purpose to banish from the case the necessary elaborations, paraphrases and particulars of negligence, but rather to rely on the jury, assisted by the lawyers’ arguments, to deduce from the general definition the specific application appropriate to the case.
One of the unfortunate roles assumed by trial judges in the past is that of advocating both sides of the case by reading to the jury a series of argumentative charges favoring one side of the case and then, “on the other hand,” reading another series of equally argumentative charges favoring the other side of the case. It has been the Committee’s purpose to omit such argumentative charges and to remove all advocacy from the charge . .. [Fla.Std. Jury Instr. (Civ.) at xix, xx.]

Thus since 1967 trial judges have been discouraged from charging juries on negligence subprinciples which serve to decide legal issues confronting trial and appellate courts, but which in jury charges produce interminable charge conferences, overemphasis of certain evidence or theories, confusion wrought by “on the other hand” charges, and appeals, but nothing of substantial value. See Dayton, 348 So.2d at 591.

I should be among the first to say that the “theory and technique” of the standard instructions, and the recommended charge themselves, are not sacrosanct. By judicial decisions the law moves interstitially, and uncritical adherence to the standard charges may tend to freeze the law’s development in the stage where the committee found it when writing the charges. The Supreme Court made allowance for necessary growth in the law when it provided:

[T]he Court recognizes that no approval of the forms by the Court could relieve the trial judge of his responsibility under the law properly and correctly to charge the jury in each case as it comes before him. This order is not to be construed as any intrusion on that responsibility of the trial judges. [198 So.2d at 319; Fla.Std. Jury Instr. (Civ.) at v.]

It was therefore not apostasy for the trial judge, stating reasons as he did, to consider it appropriate to charge this jury that violation of an industry standard is “evidence of negligence.” I nevertheless consider the reasons inadequate and the charge erroneous.

The charge given was an adaptation of standard charge 4.11, which reads:

Violations of a traffic regulation prescribed by [statute] [ordinance] is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that a.person alleged to have been negligent violated such a traffic regulation, you may consider that fact, together with the other facts and circumstances, in determining whether such person was negligent.

Charge 4.11, pertaining to traffic regulations, is of course to be distinguished from standard charge 4.9, which characterizes as “negligence” any violation of a nontraffic penal statute. As the court today holds, following deJesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla.1973), a railroad’s violation of a statute requiring erossbuck warning signs is “negligence,” and charge 4.9 is appropriate. The committee commented, in recommending charge 4.9,

When the legislative authority enacts such a statute or ordinance, it thereby prescribes a minimum standard of reasonable care to which every reasonably careful person will adhere. The jury is not at liberty to determine that the violation of such a standard is not negligence. [See Richardson v. Fountain, 154 So.2d 709 (Fla. 2d DCA 1963), cert. den., 157 So.2d 818 (1963).]

Standard charge 4.11, pertaining to traffic regulations prescribed by statute or ordinance, and which the trial judge here adapted to standards of care prescribed by industrial organizations, does not rest on so firm a public policy as charge 4.9, and so does not prescribe an unbending standard of care. Therefore evidence of such a violation is characterized as “evidence of negligence,” but “not . . . conclusive evidence of negligence.” Even such a limited comment as this, given after reading an ofttimes long series of traffic statutes or ordinances, is in my opinion problematic, lending judicial emphasis to nonexclusive standards of reasonable care which the jury is not obliged to apply to the exclusion of other standards suggested by the evidence, the argument, and the jurors’ common sense. The justification for charge 4.11 is that pre-1967 decisions on which it was based suggested its necessity, and that the jury must be told something concerning the effect of statutory or ordinance standards to which the jury may otherwise absolutely defer, especially if they are intoned -in the charge by the trial judge. In my opinion the chief value of charge 4.11, when employed to explain the effect of a statute or ordinance, or the effect of a regulation, lies in its advice that the standard, of which the jury must be advised, is not conclusive. To the extent that the charge suggests that such a standard is more important than “reasonable care under the circumstances,” I regard it as an unfortunate, if unavoidable, intrusion on the function of counsel and the jury.

Therein lies my aversion to the court’s extended application, in this case, of charge 4.11. The trial judge does not read industry standards to the jury, nor does the judge read back other evidence submitted for the jury’s consideration. Therefore there is no need to cancel or qualify the seemingly authoritative effect of the judge’s reading of a statute. If standards prescribed by traffic statutes or ordinances are thought to occupy some middle ground of importance, greater than those standards which are suggested by the evidence and argument but lesser than standards to which charge 4.9 applies, there is no reason, in my opinion, to assign “industry standards” to that favored middle ground. To the extent that “industry standards” are prescribed by government, charges 4.9 and 4.11 permit judicial comment because the charging judge is, for the jury, the source of applicable law. But standards prescribed by voluntary industrial organizations are not law, and endorsement of them should not be found in the mouth of a trial judge. A charge such as this has none of the justifications of 4.11 but has all of its disadvantages.

In extending charge 4.11 to cover “industry standards,” I fear the majority are misled by the discrete written form in which the railroad crossbuck standard was evidenced in this particular case. Ante p. 1010 fn-. 1. Certainly the industry’s cross-buck standard is not made equivalent to a statute or ordinance by the fact that it is written. Particular customs or standards of reasonable care in organized commercial activity, be it railroading, manufacturing, medical practice, or some other, are not always proved by so handy a document as Bulletin No. 7 of the Association of American Railroads. Standards are subject also to proof by expert witnesses. E. g., Ashburn v. Fox, 233 So.2d 840 (Fla. 3d DCA 1970); Millar v. Tropical Gables Corp., 99 So.2d 589 (Fla. 3d DCA 1958). I think it no more justifiable for a trial judge to comment favorably on a vocational standard evidenced in writing than to comment on a standard shown by opinion testimony or other competent evidence. If it is the Court’s purpose to restrict the charge to standards of associations “composed of and directed by the very operators that are to be guided by the standards,” ante p. 1011 fn. 2, justification of the charge becomes even more attenuated, suggesting as it does that judicial comment is appropriate where there is an asserted admission against interest, but not otherwise. We do not ordinarily single out admissions against interest for comment in the charge.

Claimants’ counsel need not celebrate today’s decision. The availability of a jury charge commenting favorably on the vocational standard suggested by claimant’s evidence inevitably makes available, as the majority have today foretold, a countervailing charge that compliance with a vocational standard is evidence of due care. That is the phenomenon of judicial evenhandedness. Thus do self-serving vocational standards become more important as straw men in the defense of tort actions. See Homan v. County of Dade, 248 So.2d 235 (Fla. 3d DCA 1971). There can be no more telling climax to a strategy of trial to the jury, whether by claimant or defendant, than a charge by the trial judge which seems to endorse one’s theory of claim or defense.

Though I am persuaded that the subject charge was error, and that the Court’s approval of it and a countervailing charge bodes ill for jury trials in Florida, I cannot conclude on this record that the judgment should be reversed. In the light of the evidence on liability and the court’s proper charge that violation of the crossbuck statute was negligence, I consider it extravagant but harmless that the court added that violation of an industry crossbuck standard is “evidence of negligence.”

I therefore concur in the judgment on this point and in the court’s opinion on all others.

      . Railroad-Highway Grade Crossing Warning Systems: Recommended Practices, Bulletin No. 7, Communication and Signal Section, Association of American Railroads.
      Based upon a color and shape recognition scheme prescribed by the National Joint Committee on Uniform Traffic Control Devices Manual on Uniform Traffic Control Devices for Streets (MUTCD) and Highways, the black and white (regulatory colors) crossing signs (cross-buck shape to indicate a crossing) were recommended as mandatory at all railroad-highway crossings. In conjunction with those, the MUTCD would require of public authorities the placement of railroad advance warning signs. These 36 inch round yellow signs (yellow indicating a general warning and the round shape indicating the advance warning of a railroad crossing) are recommended to be placed from 1500 feet in advance of the track on high speed roads to 250 feet in relatively low-speed urban areas. The recommended placement of the advance warning signs for rural crossings such as in the instant case is 750 feet. The D.O.T. advance warning sign in the instant case was placed 222 feet in advance of the tracks.

        The minimal protective scheme proposed by the industry for grade crossings is two-fold and its purpose is clear: 1) Circular yellow advance warning signs placed by the.public authorities to warn of one’s approach to a crossing, and 2) black and white crossbucks, placed by the railroad, to mark the actual site of the crossing.

      . In a special concurring opinion in Jackson v. Harsco Corp., 364 So.2d 808, 810 (Fla. 3d DCA 1978), Judge Barkdull criticized the Florida Freight decision for raising administrative regulations to the dignity of penal statutes or ordinances for the purposes of instructing on negligence. In so doing, Judge Barkdull compared the electorates’ power of the ballot to change the makeup of a legislative body that enacts a given penal statute or ordinance with the public’s contrasting inability to so affect administrative bodies that promulgate regulations. We do not perceive this problem to exist with respect to industry safety standards, especially, when as in the instant case, the standard is promulgated by a voluntary association, composed of and directed by the very operators that are to be guided by the standards.

      . In response to railroad counsel’s spontaneous request for “an instruction that running into a train is evidence of negligence and that failing to stop, look, and listen is evidence of negligence and all the other things that can be argued is evidence,” the trial court replied that “that would be covered by your standard instruction on negligence, but consideration of an industry standard is something the jury might not understand.” The court later said that if the charge were error, “it should be a harmless error because it’s exactly what the jury is entitled to consider .

      . For example, charges incorporating complex statutes such as Section 316.1575, Florida Statutes (1977), requiring driver “[o]bedience to signal indicating approach of train,” tend to cancel any benefit in adhering to the committee’s recommendation that the trial court not charge in common law terms on “[rjeciprocal duties at railroad crossing (duty to yield right of way to approaching train.)” Fla.Std. Jury Instr. (Civ.) 4.14b comment.

      . Florida Freight Terminals, Inc. v. Cabanas, 354 So.2d 1222 (Fla. 3d DCA 1978).


author: PER CURIAM. PER CURIAM.

text:
    Edward A. WHEATON and Edith Wheaton, his wife, Appellants, v. BOHNERT ROOFING & SUPPLY CO., INC., Appellee.
    No. 78-1121.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.

      Brumer, Moss, Cohen & Rodgers, Daniels & Hicks and Sam Daniels, Miami, for appellants.
    Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appel-lee.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   ON REHEARING GRANTED

PER CURIAM.

The petition of the appellants for rehearing having brought to our attention that in our opinion filed March 13, 1979, certain statements relating to the amounts in the judgment were inaccurate and that the judgment as originally entered by the trial court was correct as to the amounts therein, the petition is granted. Whereupon our opinion filed March 13, 1979, is withdrawn and is replaced by this revised opinion, which shall stand as the opinion and judgment of this court on the above-styled appeal.

REVISED OPINION

PER CURIAM.

This is an appeal by the plaintiffs below from a judgment entered for the defendant Bohnert Roofing & Supply Company, Inc., upon the granting of said defendant’s renewed motion for a directed verdict after verdict and judgment had been rendered in favor of plaintiffs. We find error and reverse.

The plaintiff, Edward A. Wheaton, a building contractor, was injured in a fall to a lower floor when a planking panel supplied by the defendant upon which he was standing or walking in the course of laying such panels on rafters, broke under his weight. Wheaton filed this action for damages against the defendant-supplier. His wife, the plaintiff Edith Wheaton, joined in the action, seeking derivative damages. As amended, the complaint charged the defendant-supplier with negligence by furnishing planking material which because of defect or weakness was insufficient to support his weight when walked upon, knowing that it would be so used in its installation, and by failing to warn the plaintiff thereof. The complaint as amended also sought recovery therefor against said defendant on the theory of strict liability of the supplier. See West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976).

On trial of the action the jury found the plaintiff Edward Wheaton and the defendant Bohnert Roofing & Supply Company, Inc. each were guilty of negligence, assigning 25% of the negligence to the plaintiff Wheaton and 75% thereof to the defendant Bohnert, and found the total amount of damages to be $75,000.00 as to the claim of the plaintiff Edward Wheaton and $15,-000.00 as to the claim of the plaintiff Edith Wheaton. As verified by the questioning of the jury by the court, those damages were determined by the jury as the amounts to be awarded to the plaintiffs after deducting from the total damages the portion properly allocable to the negligence of the plaintiff, as the court had charged the jury to do.

After the verdict and judgment, and within the time required, the defendant Bohnert filed its motion for judgment to be entered in accordance with its motion for directed verdict upon which ruling had been reserved [Fla.R.Civ.P. 1.480(b)] and moved for new trial. The trial court granted the motion for directed verdict and entered judgment for said defendant. The order of the court provided that in the event the judgment so entered should be reversed, the motion for new trial was conditionally denied.

The rule relating to a trial court’s consideration of a defendant’s motion for a directed verdict, as stated by the Supreme Court in Mullis v. City of Miami, 60 So.2d 174, 176 (Fla.1952), that “[t]he court should not direct a verdict for the defendant, unless it is clear that there is no evidence whatever adduced that could in law support a verdict for plaintiff”, is applicable also when the trial court has for consideration a defendant’s motion after verdict for judgment based on the motion for directed verdict made at trial which was not granted. Whitman v. Red Top Sedan Co., Inc., 218 So.2d 213 (Fla. 3d DCA 1969).

On review of a judgment for defendant based on a directed verdict, the appellate court is required to observe the settled rule, as stated by the Supreme Court in Rodi v. Florida Greyhound Lines, 62 So.2d 355, 356 (Fla.1953), to consider the testimony adduced in the cause in the light most favorable to the plaintiff, disregarding conflicts in the evidence and indulging in plaintiff’s favor every reasonable intendment deducible from the evidence.

On consideration of the evidence disclosed in the record in light of the rule set out above, we are impelled to conclude the trial court was in error in holding that no evidence was adduced that in law could support a verdict for the plaintiffs.

Included in the facts and testimony in the record were the following. Edward Whea-ton was a building contractor on the construction of a residence. The specifications called for use of “Fibertex” roof decking, which was a planking material made of pressed wood fibers. The material was supplied by the defendant Bohnert, and was delivered by it by truck and raised to roof level. The delivery was made by Bohnert’s roofing superintendent Milton Bullema, who was familiar with the product and had used it previously. Wheaton had had no experience with the product. With a carpenter-helper, Wheaton proceeded to install the panels on the rafters. The first row of panels was nailed down. In order to shorten the time of unloading, Bullema requested that Wheaton put the panels in place on the rafters without taking the time to nail them down. The panels were nine feet long, 32 inches wide, and by specification and building code were to be two inches thick. Each weighed between 100 and 125 lbs. They were equipped with tongue and groove, and in placing a row of panels it was necessary to carry them from the truck lift, across the panels already laid. There was evidence that Wheaton was concerned as to whether the unnailed panels were strong enough to support him. When he questioned Bullema on that feature, Bulle-ma assured him they were safe to walk upon. Also Wheaton questioned the safety of the panels when some appeared to him to be “culls”, and he observed that some were less than two inches thick. Again he was assured by Bullema that it was safe to walk on the panels. The exact thickness of the panel which broke was not established, and the evidence did not show any specific defect of the panel which broke. However, the evidence showed that of these panels which he was thus assured were of sufficient strength to support him, when Whea-ton stepped on one it failed to support him, and broke under his weight.

On that evidence the jury reasonably could have, and in fact did find the defendant-supplier guilty of negligence to a certain degree [and also could have and did find the plaintiff Wheaton guilty of negligence in some degree].

It was not unreasonable for the jury to find negligence on the part of the plaintiff, where he proceeded to walk on the unnailed panels when he had misgivings as to their safety, and after having observed that an unnailed panel “gave” when he walked on it. However, the jury reasonably could find that the reason the plaintiff so continued to walk on said unnailed panels in the performance of work in the manner requested by Bullema, was because of and in reliance on Bullema’s assurances of safety. The jury’s finding of negligence of the defendant-supplier was reasonable, based on the evidence that its employee was responsible for the plaintiff’s action of walking on the panels while unnailed and because defendant’s agent advised plaintiff it was safe to do so when in fact it was not. In point on this feature are Propper v. Kesner, 104 So.2d 1 (Fla.1958), and Sonnenborn v. Gartrell, 179 So.2d 385 (Fla. 3d DCA 1965). See also Lebrecht v. Bethlehem Steel Corp., 402 F.2d 585 (2nd Cir. 1968); Virginia Dare v. Schuman, 175 Md. 287, 1 A.2d 897 (1938).

For the reasons shown above, without need to deal with other grounds, the judgment is reversed, and the cause is remanded with direction to reinstate the judgment previously entered in favor of plaintiffs. Reversed and remanded.

      . The court had charged the jury that if they found both the defendant and the plaintiff Wheaton guilty of negligence, “you will award the Wheatons the total amount of the damages sustained by them reduced in the same proportion that Mr. Wheaton’s negligence contributed to his own injury and damage.”
      Further, relating to the form of special verdict submitted to the jury, the court charged:
      “And the fourth question is what is the total amount of damages if any do you find that the plaintiffs have sustained as a result of the accident? Edward A. Wheaton, and a blank, and Edith Wheaton, and a blank. And whatever figure that you place here will be a final calculation, if any, taking into consideration the percentage, if any, as to a comparative negligence.”

      . Regarding Wheaton’s concern as to whether it was safe to walk on the panels which were unnailed and some of which he observed to be of less than required thickness and of questionable quality, and the assurances he received from Bohnert’s agent as to their safety, Whea-ton’s testimony included the following:
      “A * * * But my plans was to anchor the whole thing as we went.
      “Q And why didn’t you pursue that?
      “A Well, because I was told that I was taking up too much time and was told just to lay it on the rafters.
      “Q Who told you this?
      “A The driver.
      “Q Of the truck?
      “A That’s correct.
      “Q And he said he couldn’t wait for you to nail all the—
      “A Well, he didn’t have that much time. It was too time-consuming. And I said, well, will the stuff hold, and he said sure it will hold.”
      * * * * * " *
      “Q And what about when you walked on the planking material but on a portion of the planking material that was just over open space, that did not have a rafter?
      “A Then it would give. As a matter of fact, we stopped after our first — after we started leaving our first plank on the second row, as you would step—
      “Q The first row was nailed down”
      “A Yes, yes.
      “Q You’re sure of that?
      “A Oh, I’m positive * * * ”
      “Q Did the driver of the truck — I’m going to call Mr. Bullema, because he’s already indicated he was the driver — did he ever indicate to you that there was anything dangerous about walking, over these portions that was not nailed down?
      “A No. As a matter of fact, we just didn’t —if I indicated that we just nailed one row, that’s incorrect. We had started nailing, and I don’t know whether we had the second row nailed and part of the third, I don’t remember.
      I do remember we were laying them and nailing them until we were told it was taking too much time, and we didn’t have to do that, just let’s get it unloaded, and we could do that after he was gone.
      “Q You asked him if it was safe to do so, and he indicated yes?
      “A Oh, yes, yes.”
      5(5 ¡(í í}5 ‡
      “Q * * * When you were laying these planks, did you observe any variation in the thickness of the planks?
      “A Sure, sure, sure.
      “Q Could you tell me how you observed that?
      “A Well, it was just a definite difference in it. There was a good half inch, and I asked the man — I said, gee, what’s the story? The look like you’ve got some culls in there. “Q What’s a cull?
      “A Well, something other than standard. “Q Okay.
      “A And he said no, that’s the way it comes from the factory. And I said is it safe? I said, they’re really giving quite a bit.
      He said, no, we do this all the time. * * ”
      [After Wheaton called Bullema’s attention to the fact that he noted some panels were less than the specified thickness.]
      “Q And the response was this is the way it comes?

        “A Well, the man, and he was very frank about it, I mean, he wasn’t telling me a lie, I’m sure. You know, that’s the way it came from the factory, but it was safe. I said it sure is giving a lot, and he said no, it’s safe. He said I’ve used it for years.”
      [Regarding the safety in walking on panels which were nailed down as compared to un-nailed panels, Bullema testified as follows.]
      “Q Did you ever mention to Mr. Wheaton that these planks are weaker when they are not nailed down?
      “A No, I did not mention it, but I figured he would know that because he’s a contractor and a builder.”


author: ERVIN, Judge.

text:
    Kristen DOYLE, a minor, by and through her father and next friend, Joseph Doyle, and Joseph Doyle and Mary Jean Doyle, Individually, Appellants, v. SHANDS TEACHING HOSPITAL AND CLINICS a/k/a University of Florida Teaching Hospital, a/k/a J. Hillis Miller Health Center, Appellees.
    No. KK-257.
    District Court of Appeal of Florida, First District.
    April 24, 1979.

      Wagner, Cunningham, Vaughan, Hapner & Genders, Tampa, Walter H. Beckham, Jr., Joel D. Eaton and Robert Orseck of Pod-hurst, Orseck & Parks, Miami, for appellants.
    William Graham of Dell, Graham, Will-cox, Barber, Ryals, Henderson & Monaco, Gainesville, for appellees.
   ERVIN, Judge.

The appellants’ daughter was born on March 5, 1974, at Shands Teaching Hospital, part of the University of Florida Medical School, in Gainesville, Florida. On March 4, 1976, one day before the limitations period in § 95.11(4)(b), Fla.Stat. (1975), would have expired, appellants filed a medical malpractice claim, seeking damages from Shands, the J. Hillis Miller Health Center and the State of Florida as defendants for the alleged negligent delivery of their daughter which resulted in brain injury. The summons issued named Shands and the Health Center and directed service on Shands in care of the acting administrator. The summons was forwarded to the administrator of the J. Hillis Miller Health Center Insurance Trust Fund, which was created by the Board of Regents of the State of Florida to provide general liability coverage to the Health Center and its components, including Shands Teaching Hospital. See Fla.Admin.Code Rule 6C-10.01. The administrator of the trust fund handles all claims directed to alleged malpractice of the health center or its components. Appellants’ mediation claim was submitted to both the claims committee under the trust fund and the “trust fund board,” both of which are charged with deciding whether mediation under Ch. 768 will be waived or not. No answer was served within 20 days, and the clerk notified the parties that the panel’s jurisdiction had terminated. See § 768.44(l)(c) and Fla.R.Med.P. 20.190.

The appellants filed their claim in circuit court naming Shands, the Health Center and the State, as before. Service was effected in exactly the same manner, and the Hospital appeared and moved to dismiss and quash the service of process on grounds that it was not a legal entity capable of being sued and that the suit could only be perfected by naming the Board of Regents of the State of Florida as defendants. The trial court granted the motion. Appellants filed their amended complaint, naming the Board of Regents, the Health Center and Shands. After the appellee’s motions to strike were granted, the appellants filed a third amended complaint, and the Board affirmatively answered by responding that the circuit court lacked subject matter jurisdiction because the claim had not first been submitted to medical mediation proceedings. The circuit court dismissed the case on those grounds, stating that service of process on the hospital administrator in the medical mediation claim did not give the panel jurisdiction over the Board of Regents and that the appellants’ claim in circuit court had never been submitted to mediation as required by the Florida Medical Malpractice Act. This appeal followed.

We agree that the trial court lacked subject matter jurisdiction because no medical malpractice proceedings were held. Appellants argue that the appellee should not be able to avoid a malpractice claim simply because the State of Florida was not named in its proper capacity.' Appellees respond that process was never had over the State in any capacity.

We are aware that Florida courts have placed a strict construction upon the time periods in § 768.44. See Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977); State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977); State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla. 3d DCA 1977). However, those events requiring termination all presume service upon a properly named defendant, otherwise no answer could be filed or a hearing ever held. As a result of the failure to serve the State of Florida in its proper capacity, the medical mediation claim has remained in limbo since it was filed. Necessarily, no mediation proceedings were ever held, and the circuit court lacked subject matter jurisdiction of the case before it.

Section 768.44(4) provides that the “filing of the claim shall toll any applicable statute of limitations . until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated.” (e. s.) The jurisdiction of the panel was never terminated since appellants named the correct party defendant, the State of Florida, although not in its correct capacity as the Florida State Board of Regents. Appellants may now, if they wish, amend their medical mediation claim to correct the misnomer, and the amended claim will relate back to the filing of the original claim. Transition Rule 21(a), in effect at the time appellants filed their claim, states that “[t]o the extent applicable, the rules of civil procedure shall apply to all proceedings before the Medical Liability Mediation Panels.” Therefore, if filed, the amended pleading will relate back to the date of the original pleading “[wjhen the claim . arose out of the conduct, transaction or occurrence set forth ... in the original pleading. . . . ” Fla.R.Civ.P. 1.190(c). Moreover, “the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.” Fla.R.Civ.P. 1.190(e). If the amended pleading introduces a new defendant, it does not relate back to the filing of the original pleading for purposes of tolling the statute of limitations as to that defendant. 21 Fla.Jur., Limitation of Actions, § 71 at p. 219.

But where . . pleadings are amended to show . . that the defendant is sued in a different capacity, the amendment does not bring in a new party defendant. It merely changes the capacity in which the same defendant is sought to be charged. Hence it cannot be contended that the suit in such a case is barred by the statute of limitations. Id.

Here, an amendment of the appellants’ medical mediation claim to name the State of Florida in its capacity as the Florida State Board of Regents would neither introduce a new party into the existing action nor state a new cause of action. See Gaiuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA 1970), in which it was held an amendment to a complaint naming the defendants in their individual capacity, rather than as a corporation, related back to the date the original complaint was filed. The court noted, as in this case, “the question . is one of substance, since if the plaintiff’s request is denied, her claim is lost . Id. at 409. And, that “[t]he pleadings filed and other actions taken by [the misnamed defendant] . . . were of a nature calculated to lead the plaintiff to believe that she had sued the correct party.” Id. at 411.

Appellees rely upon Louis v. South Broward Hospital District, 353 So.2d 562 (Fla. 4th DCA 1977), but that case is distinguishable. There, two days before the limitations period was to run, the plaintiff, filed his complaint, naming only a hospital which was neither an entity capable of being sued, nor the hospital the plaintiff sought to sue. Service was made on “a different legal entity,” but not the one the plaintiff meant to sue. Id. Plaintiff amended his complaint to name “South Broward Hospital District” which was both an entity capable of being sued and the correct entity for plaintiff’s suit. The trial judge granted summary judgment for the defendant on the ground that the statute of limitations had run. In Louis, supra, the plaintiff did not initially name the correct defendant in an incorrect capacity, as here.

The summary judgment is affirmed without prejudice to appellants’ right to amend their medical mediation claim by naming the State of Florida in its correct capacity as a party defendant.

MILLS, Acting C. J., and MASON, ERNEST E., Associate Judge, concur.

      . Section 240.042(1), Fla.Stat. (1975), states that the Florida Board of Regents is a “body corporate” and grants it the right to sue and be sued. Sections 241.461 and 241.471 authorize the operation of the J. Hillis Miller Health Center and the University of Florida Medical School.

      . Three alternative events, under § 768.44, trigger termination of medical mediation: (I) The failure to respond to the service of summons within 20 days. (2) The failure to hold a hearing or extend the time for hearing within 120 days after the claim is filed. (3) The failure to hold or complete a hearing within 10 months after the claim is filed.

      . See, In re: Transition Rule 21, 316 So.2d 38 (Fla.1975).

      . In Garcia v. Dade County Public Health Trust, 369 So.2d 634 (Fla. 3d DCA 1979), on facts similar to those in this case, the Third District Court of Appeal reversed the trial court’s order dismissing the appellants’ complaint for failure to mediate. There, however, although not properly named, the county agency — unlike the Board of Regents here — had been correctly served in the mediation proceeding. The court held that the agency’s failure to respond to the appellants’ mediation claim “constituted purposeful inaction which lulled the claimants into reliance on their filed claim as being effective . .and held that the amended complaint would relate back to the filing of the mediation complaint.


author: MELVIN, Judge.

text:
    Myrtle BALL, Appellant, v. Thomas ATES and Hartford Insurance Company, Appellees.
    No. LL-151.
    District Court of Appeal of Florida, First District.
    April 24, 1979.

      James A. Hightower of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P. A., Pensacola, for appellant.
    Philip D. Beall of Beall, Lindsay & Lindsay, P. A., Pensacola, for appellee.
   MELVIN, Judge.

Myrtle Ball fell and injured herself while working for Thomas Ates. Upon a suit against Ates and his insurer, Hartford Insurance Company, the jury verdict found Ates to be five percent negligent. The trial court subsequently entered a judgment in accordance with the motion for directed verdict by the defendants and Ball appeals. We affirm.

The evidence shows that Ball was injured when she slipped and fell as she attempted to step over a puddle as she was going out to feed Ates’ dogs. She testified that the water had been standing in that same place for at least a day, that she knew it was there, and that feeding the dogs had become one of her regular tasks. Under these circumstances we agree with the trial court that there was no showing of negligence on the part of Ates. The risk Ball encountered was an ordinary risk, not an unusual one, and she had knowledge of it equal or superior to that of Ates. In Vermont Mutual Insurance Company v. Conway, 358 So.2d 123 (Fla. 1st DCA 1978), we reversed the trial court’s denial of a directed verdict where a painter placed his ladder on a driveway which he knew had been recently hosed down and then sued the property owner for the injuries suffered when the ladder slipped. In the instant case as in Vermont Mutual the rule is that a defendant’s knowledge of danger must be superior to that of a business invitee in order to create a duty to warn of dangers unknown to the plaintiff.

AFFIRMED.

McCORD, C. J., and LARRY G. SMITH, J., concur.


text:
    Robert James BEARD, Appellant, v. STATE of Florida, Appellee.
    No. MM-359.
    District Court of Appeal of Florida, First District.
    April 24, 1979.
    James B. Libson, Public Defender, and William C. Johnson, Jr., Asst. Public Defender, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from the denial of a motion for post-conviction relief under Rule 3.850, Fla.R.Crim.P. Though appellant raised several grounds, only one has any merit and that is that he was sentenced to imprisonment “at hard labor.” As held by this court in Ussery v. State, 350 So.2d 839 (Fla. 1st DCA 1977), that provision is technical surplusage and is hereby stricken. In all other respects, the judgment of the trial court is affirmed.

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


text:
    John Junior DILLS, a/k/a Jackie Dills, Appellant, v. STATE of Florida, Appellee.
    No. LL-16.
    District Court of Appeal of Florida, First District.
    April 24, 1979.
    Harry L. Shorstein of Shorstein & Roma-nello, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant challenges the sufficiency of the evidence for his conviction for unlawful possession of a controlled substance with intent to sell. We reverse.

The statement of the facts of the case as set forth by appellant in his brief and agreed to by the state fails to establish that appellant was in actual or constructive possession of the marijuana. Daudt v. State, 368 So.2d 52 (Fla.2d DCA, 1979).

REVERSED and REMANDED with directions to discharge the appellant.

McCORD, C. J., and BOOTH and SMITH, LARRY G., JJ., concur.


text:
    William Edwin ROSE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2298.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.

      Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendant, William Rose, appeals an order revoking his probation and sentencing him to 2Vz years in prison followed by five years probation.

On February 2, 1975 William Rose was charged by information (# 75-1320) with (I) possession of a controlled substance, eth-chlorvynol, in violation of Section 893.13, Florida Statutes (1975); and (II) possession of a habit forming, toxic or harmful drug, glutethimide, without a valid prescription in violation of Section 500.151, Florida Statutes (1975). Subsequently, on April 11, 1975 Rose was charged by information (# 75-3858) with (I) possession of a controlled substance, ethchlorvynol (placidyl) in violation of Section 893.13, Florida Statutes (1975); and (II) possession of a controlled substance, ethchlorvynol, in a container other than that in which it was lawfully dispensed in violation of Section 893.-13(2)(a)(7), Florida Statutes (1975). At a hearing on May 9 Rose changed his pleas from innocent to guilty as to both informa-tions.

He was sentenced on information # 75-1320 as follows: as to Count I, six months in jail; and as to Count II, two years probation to commence at the expiration of the sentence in Count I. With respect to Counts I and II, in information # 75-3858 Rose was given the same sentences as in information # 75-1320, to be served concurrently. After his release from jail, an affidavit of violation of probation was filed against Rose on November 15, 1976. A revocation hearing was held and at the conclusion, the trial judge revoked Rose’s probation. On information # 75-1320 (Count II) he was sentenced to five years probation with a term of 2V2 years imprisonment as a special condition of probation. On information # 75-3858 (Count II) he was sentenced to a one-year period of incarceration to run concurrently with the sentence imposed with respect to information # 75-1320.

Rose appeals the revocation of probation and sentences alleging that the court was without jurisdiction to revoke his probation because the maximum authorized probationary period (which was six months) had already expired at the time the revocation of probation affidavit had been filed. Rose argues that on May 9, 1975 he pled guilty to Counts I and II contained in information # 75-1320; and that Count II, possession of a habit forming drug without a prescription, is a misdemeanor of the second degree. The maximum authorized probationary term for a misdemeanor of the second degree is six months. See Section 948.04, Florida Statutes (1975) and Alderman v. State, 356 So.2d 928 (Fla. 2d DCA 1978). The imposition of the two-year period of probation was unlawful and, therefore, the six-month maximum authorized probation as to Count II commenced after service of his six-month period of incarceration imposed by Count I. Rose then calculates that his probation expired on May 15, 1976, six months prior to the filing of the affidavit of violation of probation on November 15, 1976. Rose presents a similar argument with respect to his conviction on Count II of information # 75-3858.

We cannot agree with Rose’s arguments because his calculations are erroneously based upon the premise that he began to serve his concurrent sentences on May 9, 1975 and the ensuing probationary terms commenced on November 9, 1975. The record at the revocation of probation hearing reflects that Rose was released from jail in June, 1976 and, therefore, the November 9, 1976 affidavit of violation of probation was filed within the time period Rose was serving his probation. Thus, the trial court had jurisdiction to revoke his probation. See e. g. Carpenter v. State, 355 So.2d 492 (Fla. 3d DCA 1978).

Rose for his second point on appeal contends that the trial court erred in imposing a sentence of five years probation with 2V2 years imprisonment as a special condition after revoking his probation as to Count II of information # 75-1320. We find this point well taken.

As pointed out above, possession of a harmful drug without a valid prescription is a misdemeanor of the second degree with a maximum of six months imprisonment or six months probation. See State v. Holmes, 360 So.2d 380 (Fla.1978); Waits v. State, 328 So.2d 223 (Fla. 2d DCA 1976).

Accordingly, the sentence imposed on Count II of information # 75-1320 is reversed and the cause is remanded to the trial court for imposition of a new sentence not inconsistent herewith.

In all other respects the order revoking probation and sentence, imposed on information # 75-3858 are affirmed.

Affirmed in part, reversed in part.

      . Sections 500.151 and 500.24(1), Florida Statutes (1975).