author: GREEN, OLIVER L., Associate Judge.

text:
    Valentino DeGEORGE, Appellant, v. STATE of Florida, Appellee.
    No. 77-120.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1978.
    Rehearing Denied May 23, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., for appellee.
   GREEN, OLIVER L., Associate Judge.

The appellant was convicted of burglary, possession of burglary tools, use of a firearm while engaged in a criminal offense, and attempted grand larceny. He seeks reversal of his conviction on the charges of burglary and attempted grand larceny. We affirm; however, this appeal raises two significant points which bear discussion.

First, an omission was committed by trial counsel, which has become all too common in both civil and criminal litigation. While there is sufficient testimony in the record to support the verdicts, the principal method of relating the geographical features of the “structure” and its “curtilage” to the jury, was by the use of a diagram which the State’s principal witness drew during his testimony. This diagram was not placed into evidence, and, therefore, is not available for this appeal. Such diagrams can easily be preserved. Even a diagram drawn on a chalkboard can be recorded through photographic reproduction.

It is not our purpose to discuss the technical prerequisites for the introduction of such a diagram into evidence; however, it is highly desirable that this evidence be available in the event of an appeal.

Secondly, we will discuss Sections 810.-011(1) and 810.02, Florida Statutes, as they relate to the facts of this case. The appellant was charged, by Information, with having unlawfully entered or remained on the curtilage of a structure, property of R. Drummond, with intent to commit the offense of larceny therein, and, in the course thereof, was armed with a dangerous weapon, to-wit: a pistol, contrary to Florida Statutes 810.02(3).

The State’s principal witness, Detective William Joseph Berthiaume, testified that on the night of July 27, 1976, he was on a stakeout, observing a place of business known as Drummond’s Outboard Service. The premises were composed of a structure, and an immediately adjacent paved area, partially enclosed by a fence, a brick wall, and the structure itself. Bays of some description were located on this pavement area. The defendant was attempting to dismantle or remove the motors on two boats stored in or near these bays. It is apparent that the pavement area and bays are part and parcel with the business structure, all of which is known as Drummond’s Outboard Service.

The proof fully supported the allegations; however, our research has failed to disclose that the term “curtilage” has ever been associated with a structure other than a dwelling house. The premises in this case involved a structure which was a place of business.

We must, therefore, determine whether the language of the Florida Statutes (Section 810.011(1) and Section 810.01) are sufficiently informative to those of common understanding. The constitutionality of 810.02, Florida Statutes (1975), is not in question. Riddle v. State, 345 So.2d 1073 (Fla.1977), also see Simmons v. State, 354 So.2d 1211 (Fla.1978).

Section 810.02 of the Florida Statutes (1975) provides:

“810.02 Burglars-
“(1) ‘Burglary’ means entering and remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open- to the public or the defendant is licensed or invited to enter or remain.” (Emphasis added.)

Section 810.011, Florida Statutes (1975) provides:

“810.011 Definitions. — As used in this chapter:
“(1) ‘Structure’ means any building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof: (Emphasis added.)

At common law, burglary was considered an offense against the habitation rather than against property. In England, where a person’s house was usually enclosed together with a cluster of outbuildings by a wall or fence, used primarily for purposes of protection from outsiders, it became common to refer to such an enclosure as the “curtilage”. Blackstone’s Commentaries, IY, Page 225.

Florida adopted this common law version at the turn of the Twentieth Century by restricting the curtilage to that of a dwelling house. Chapter 4405, Laws of Florida, 1895, provided that:

“Whoever breaks and enters a dwelling house or any building or structure within the curtilage of a dwelling house, though not forming a part thereof . . . .” Chapter 4405, Laws of Florida (1895). (Emphasis supplied.)

The Florida Legislature thereafter enacted Section 810.01, which provided a distinguishable standard for breaking and entering a dwelling house and that of other buildings. With the enactment of the present Section 810.02, Florida Statutes (effective October 1, 1975), Section 810.01 was abolished and the common law definition of curtilage was expanded to apply to any buildings of any kind, either temporary or permanent, which had a roof over it.

In Phillips v. State, 177 So.2d 243 (Fla. 1st DCA 1965), the traditional common law meaning of curtilage was applied to sustain the reasonableness of a warrantless search and seizure outside the curtilage of a dwelling. The First District Court of Appeal noted the common law meaning of curtilage as, “the yard, courtyard, or piece of ground lying around or near to a dwelling house, included within the same fence.”

The same court, nine years later, in Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974), in the context of another search and seizure, upheld the validity of a search pursuant to a warrant authorizing search of the curtilage beyond the four walls of appellant’s apartment. Again, the court applied the common law test of curtilage in finding a driveway to be a part of the curtilage of a multi-family dwelling. Furthermore, the court found that the curtilage need not be separated from other lands by a fence, nor does the intersection of a divisional fence necessarily affect the relation of a building thus separated by it.

More recently, in Merrick v. State, 338 So.2d 77 (Fla. 4th DCA 1976), the Fourth District Court of Appeal, in construing the validity of a search warrant, applied the common law definition of curtilage in declaring a separate cottage not to be within the curtilage of the larger house described in a search warrant. Each of the above three cases involved the search of an area incidental to a dwelling.

Thus, since there has been no need to do so, no Florida court has yet to interpret “curtilage” to expand beyond its common law definition by applying it to commercial structures.

A plain reading of 810.011(1), extends curtilage to that of a structure, including a building of any kind, for purposes of defining a burglary. Resort to case law and statutory authority of other states sheds little light on our Legislature’s apparent expansion of the common law meaning of “curtilage” in this area.

Examination of prior cases leaves little doubt that curtilage, at law, had no application to any building not used as a dwelling, Turknett v. State, 36 Okl.Cr. 401, 254 P. 985 (1929). In Turknett, an Oklahoma court held that language purporting to give authority to search the “curtilage and appurtenances thereunto belonging” had no meaning as applied to a filling station and park, as such.

Although traditionally the offense of burglary involved the invasion of possessory rights, as distinguished from ownership rights, Jackson v. State, 259 So.2d 739 (Fla. 1st DCA 1972), a few states have found other means to expand the definition of burglary to adjoining areas of a commercial structure without relying on expansion of the term “curtilage.”

This has been accomplished through specific statutory language delineating areas of coverage. Thus, the Supreme Court of Delaware, in Jenkins v. State, 230 A.2d 262 (1967), found a junkyard to be a subject of burglary in the fourth degree. The statute being applied, 11 Del. C395, proscribed the breaking and entering of a “building.” The statutory definition of a “building” included an “enclosure.” The Delaware court held that the junkyard near an office and surrounded by a fence, was an “enclosure” within the meaning of the Delaware statute.

Similarly, an Arizona court dealt with a statute expanding burglary to cover entry of an enclosed commercial yard, used in storing equipment and supplies. State v. Jones, 27 Arizona App. 180, 552 P.2d 769 (1976). The evidence at trial disclosed the location of a company building adjacent to the fenced-in area. In interpreting the statute, A.R.S. 13.302, to require more than entry into the fenced area and removal of items merely being loaded, the Arizona court took note of the fact, “we are aware of no similar provision in the burglary statutes of other states.” Jones, supra.

A further examination of foreign case law reveals that no state has gone as far in expanding the coverage of burglary as Florida. Where other states have sought to expand burglary to non-dwelling structures and their appendages, this intent has been effectuated through specific language clearly defining the applicable coverage, without resort to self-defining common law terminology. No other state has applied curtilage in the manner Florida seeks to treat it. Clearly, if the Legislature desired to expand coverage of the statute pertaining to non-dwelling structures, this court must construe “curtilage” in a manner contrary to its common law meaning.

Florida Statutes, Section 2.01 (Supp., 1975) provides that the common laws of England which are of general and not local nature, are in force in this state if not inconsistent with the constitution and laws of the United States and the acts of the state Legislature. The words, “common laws of England”, refer not only to the common law as declared by England, but also as declared by courts of the American States. State v. Egan, 287 So.2d 1 (Fla.1973); Coleman v. Davis, 120 So.2d 56 (Fla. 1st DCA 1960). A statute that expressly or by implication supersedes the common law and which does not do violence to organic provisions or principles of the state, becomes the controlling law within its proper sphere of operation. Atlas Travel Service, Inc. v. Morelly, 98 So.2d 816 (Fla. 1st DCA 1957). This court may adopt the term “cur-tilage” without reference to the common law restriction to dwellings to preserve the plan meaning of Florida Statutes Section 810.011(1).

We do not seek to determine by this decision, the varied geographical arrangements which may constitute the “curtilage” of a “structure.” It is sufficient for our purposes, to note that in the case below the evidence was sufficient to support the verdict regarding burglary of the curtilage of a structure.

We have examined the appellant’s point concerning his conviction of attempted grand larceny and find no error.

The decision herein appealed is affirmed.

AFFIRMED.

DOWNEY and DAUKSCH, JJ., concur.

      . On the eve of publication of this opinion the Third District Court of Appeal decided Greer v. State, 354 So.2d 952 (Fla.App. 1978), which held that the term “curtilage” properly applies to the area surrounding a business structure.

      . Id.


source: Caselaw Access Project

author: BOOTH, Judge.

license: Public Domain

text:
    Larry Louis LOMBARDI, Appellant, v. STATE of Florida, Appellee.
    No. GG-176.
    District Court of Appeal of Florida, First District.
    April 18, 1978.
    Rehearing Denied May 24, 1978.

      Michael J. Minerva, Public Defender; and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   BOOTH, Judge.

This cause is before the Court on appeal from the judgment of the Circuit Court, Duval County, entered on a jury verdict convicting appellant on two counts of assault on a law enforcement officer, and one count of attempted possession of a concealed weapon.

Appellant contends the trial court erred in refusing to allow testimony concerning the civil suit brought by appellant against the Jacksonville Sheriff’s Department. That suit was settled in 1974, some three years prior to suit in this case. Appellant contends the evidence is admissible to show bias affecting the credibility of the prosecution witnesses in the instant case.

Appellant testified that officer Gardner, who stopped him for an alleged traffic violation, stated that he, Gardner, understood appellant “liked to complain about officers,” and that appellant was “a troublemaker and he didn’t like troublemakers.” Appellant then attempted to testify concerning the complaint he filed against the Sheriff’s Department in a civil suit but objection was sustained. Appellant also attempted to testify that one of the officers against whom he filed the complaint in 1973 was also involved in this ease. The court again sustained the State’s objection.

During the cross-examination of officer Gardner, the alleged victim of count one, the witness stated he had been with the Sheriff’s force in 1973, but when appellant asked if Gardner was with the force at the time appellant filed his complaint against the Sheriff’s Department, the trial court sustained the objection.

The trial court ruled that due to the remoteness in point of time, evidence of the prior civil suit was not material. On that basis, the trial court distinguished the case of Webb v. State, 336 So.2d 416 (2nd DCA 1976), wherein the defendant in a criminal case was held entitled to introduce evidence of a civil suit against the police department filed a month prior to his arrest for the criminal violation.

We hold that the trial court erred in excluding this evidence, and in disallowing appellant’s requested jury instructions on credibility of the witnesses as affected by bias. In this case, as in the Webb case, the jury was confronted with a direct conflict in the testimony between the accused and his supporting witnesses as to how the incident occurred, and the testimony of the law enforcement officers who were direct participants or witnesses to the alleged offense.

In Webb, the defendant was accused of making a sale of marijuana to a police officer, one Carnahan, in a parking lot. In Webb, as in this case, the testimony of the officer or officers involved was controverted by both the accused and a number of disinterested witnesses at or near the scene. Under these circumstances, we agree with the holding of the Webb decision (336 So.2d 416 at 418):

“We hold that this evidence was improperly excluded. Bias or prejudice of a witness has an important bearing on his credibility, and evidence tending to show such bias is relevant. We make no comment on the merit of appellant’s defense that he was ‘framed’ by the police department because of his civil suit, but we hold he was entitled to have that evidence presented to the jury. . . . And the fact that Carnahan himself was not a party to the civil suit makes no material difference. The city which employed Carnahan and the city’s Police Chief were parties and it is sufficient that they may have had a bias against him . . . ”

The fact that a number of years had passed since appellant filed and settled the lawsuit against the Sheriff’s Department in the instant case goes to the weight- of the evidence as bearing on the bias and credibility of the witnesses against him, but does not render the evidence inadmissible. Its exclusion was prejudicial error under the particular circumstances of this case. There was testimony in the record, including that of a law enforcement officer, as to the treatment of the defendant at the time of his apprehension which could indicate a desire on the part of the officers to punish the defendant, and which went beyond what is necessary, or expected, of law enforcement officers in the usual performance of their duties. While we make no comment on the merits of appellant’s defense to the charges against him, sufficient is shown by the record here to require submission to the jury of the excluded evidence regarding the prior suit against the Sheriff’s Department as bearing on the possible bias of the officers involved.

The other points raised by appellant have been considered and found to be without merit.

Accordingly, the judgment below is REVERSED and the cause REMANDED for further proceedings consistent herewith.

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

      . 13 Fla Jur, Evidence § 115 and cases cited therein. Accord, Simmons v. Wainwright, 271 So.2d 464 (1st DCA 1973); McDuffie v. State, 341 So.2d 840 (2nd DCA 1977).


author: PER CURIAM.

text:
    David ROTHENBERG, Appellant, v. Shirley ROTHENBERG, Appellee.
    No. 76-2053.
    District Court of Appeal of Florida, Third District.
    April 18, 1978.
    Rehearing Denied May 23, 1978.

      Milledge & Hermelee, Miami, for appellant.
    Tobias Simon, Elizabeth duFresne and Theodore L. Tripp, Jr., Miami, for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant here is the former husband of the appellee. He petitioned in the trial court for a reduction of the amount of alimony set by a property settlement agreement and incorporated in a final judgment of divorce entered in 1971. The matter was referred to a general master who, after the taking of extensive testimony, made an equally extensive report recommending a reduction in the amount of alimony to be paid. The circuit judge, after hearing exceptions to the report, entered a judgment adopting the findings and recommendations of the general master. We affirm upon authority of Shaw v. Shaw, 334 So.2d 13 (Fla.1976); and Herzog v. Herzog, 346 So.2d 56 (Fla.1977).

The appellant relies for reversal principally upon the argument that the trial court failed to follow the applicable law as set forth by this court in Anderson v. Anderson, 333 So.2d 484 (Fla. 3d DCA 1976). The holding in the Anderson case, under its own facts, is that “ . . . the ruling of the trial court for continuance of payment of the alimony in the face of a clear showing that the wife had become self supporting, was an error of law.” No such fact clearly appears from this record. The best that can be said here for Mrs. Rothenberg is that she has improved her position in an endeavor to become self-supporting. The finding of the general master that the wife’s salary of $9,000, as a bank employee, does not make her self-supporting arrives in this court with the presumption of correctness. See Shaw v. Shaw and Herzog v. Herzog, supra.

Affirmed.


author: BOYER, Judge.

text:
    Joe W. CORDELL, George S. Taff and Hugh E. Williams, Jr. Appellants, v. WORLD INSURANCE COMPANY, Appellee.
    No. HH-427.
    District Court of Appeal of Florida, First District.
    April 25, 1978.
    Rehearing Denied May 25, 1978.
    Robert M. Ervin and Dean Bunch, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.

      J. Marshall Conrad, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.
   BOYER, Judge.

This is the third time this case has been before this court. (See Cordell v. World Insurance Co., 352 So.2d 108 (Fla. 1st DCA 1977) and Cordell v. World Insurance Co., 355 So.2d 479 (Fla. 1st DCA 1978), Opinion Filed February 24, 1978.) Appellants’ complaint sought damages in one count and recision in another. At the instance of ap-pellee (defendant in the trial court) the learned trial judge entered an order prior to the filing by the defendant of any answer, requiring appellants (plaintiffs in the trial court) to elect which remedy they would pursue, the pertinent provision of the order being as follows:

“Plaintiffs are ordered to elect between the remedy of damages as set forth in Count II of the complaint and the remedy of recision as set forth in Count III of the complaint. To effect this election, plaintiffs are ordered to enter a notice of voluntary dismissal as to either Count II or Count III within seven (7) days of this order.”

The concluding paragraph of the order provided that the defendant should have twenty days from the date of the filing of the “notice of voluntary dismissal, as set forth above,” within which to plead to the amended complaint. Appellants concede that they may not proceed to judgment on two inconsistent counts, but urge that the learned trial judge erred in requiring the election prior to the defendant’s answer and prior to discovery.

Both parties rely upon Deemer v. Hallett Pontiac, Inc., 288 So.2d 526 (Fla. 3rd DCA 1974). In that case it was ordered that the plaintiff make an election of remedies “at the time the issue was at cause and ready for trial.” A substitute judge thereafter scheduled a pre-trial conference “and ordered that the plaintiff make an election of remedies, suspending discovery by plaintiff until such time as he elects his remedies.” The latter order was affirmed by the appellate court which stated:

“ * * * The two remedies sought by the plaintiff were not apposite. They were mutually exclusive. A claim for recision is predicated on disavowal of the contract. A claim for damages is based upon its affirmance.” (288 So.2d 527-528)

However, we need not determine which position is supported by the Deemer case because our decision is controlled by Fla.R. Civ.P. 1.110. Section (b) of that rule provides that “Relief in the alternative or of several different types may be demanded.” Section (g) of the same rule provides: “A party may also state as many separate claims or defenses as he has, regardless of consistency and whether based on legal or equitable grounds or both.” (Emphasis added)

Clearly a party may plead and litigate. inconsistent remedies. Equally clearly, a plaintiff may not recover on two or more judgments entered for the same wrong. Whether election must be required prior to trial, prior to judgment or prior to satisfaction (see 28 C.J.S. Election of Remedies § 3) we need not now determine because, as above stated, appellants have conceded that in this case they must elect prior to judgment. But the learned trial judge did err upon entering the order here appealed prior to discovery, prior to the defendant’s answer, prior to pre-trial conference and prior to the taking of evidence.

REVERSED.

McCORD, C. J., concurs.

MILLS, J., dissents.


author: LETTS, Judge.

text:
    AMERICAN FIRE AND CASUALTY COMPANY, Appellant, v. DAVIS WATER & WASTE INDUSTRIES, INC., d/b/a Davis Meter & Supply Company, a corporation, Clement J. Ford, Jr., Bobby E. Greene and Roy J. Meadows, d/b/a Ford, Greene & Meadows Properties, a Florida general partnership, and Roy J. Meadows, Inc., Appellees.
    No. 77-134.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1978.
    Rehearing Denied May 24, 1978.
    Hugh M. Palmer of Welbaum, Zook, Jones & Williams, Orlando, for appellant.
    Leighton D. Yates, Jr. and Patrick T. Christiansen of Maguire, Voorhis & Wells, P. A., Orlando, for appellees Davis Water and Waste Industries, Inc.
   LETTS, Judge.

The rulings of the trial judge are affirmed. In this case we are once again asked to consider the vexing mechanics liens questions of: first, notice to owners, and second, the transfer of liens to bond. As to the first question, we hold that notice to owners need not be given when the materials furnished relate to subdivision improvements. Second, we hold that the surety on a lien transferred to bond is not automatically released, one year after the filing of a claim of lien, if suit to enforce same has been filed before the transfer takes place.

There can be no more confusing statute in Florida than the one on liens under Chapter 713. The frequent impracticality of its application in the field, coupled with ill conceived, confusing, patchwork amendments, all topped off by conflicting appellate decisions, have all combined to make life miserable for judges, lawyers, legislators and the vitally affected construction and lending industries.

In the case at bar, materials were furnished for subdivision improvements by a lienor not in privity. Chapter 713.02 Fla. Stat. (1975) defines eight different classes of potential lienors and the ensuing sections chronologically deal with each class. Thus, § 713.03 concerns itself with liens for professional services, § 713.04 applies to subdivision improvement lienors, § 713.05 deals with lienors in privity, and § 713.06 discusses liens of persons not in privity.

The problem before us arises because the appellee, who furnished materials for subdivision improvements, filed no notice to owner and the appellant challenges the trial judge’s ruling that he did not have to, in order to perfect his lien. We agree with the trial judge, but concede that the statutory language is confusing because these successive sections of the chapter, quoted above, do not handle the question of notice to owner, uniformly.

Thus we see that:

(1) § 713.03 specifically states that no notice is required.
(2) § 713.04 is silent on whether notice is required or not.
(3) § 713.05 again states that no notice is required.
(4) § 713.06 states that notice to owner Is required.

Prom the above four line analysis, it should be easy to conclude that, because § 713.04 (the one we are here concerned with, re subdivision improvements) does not require notice to owner, the legislature did not intend that such had to be given under that section. However, the lienor in our case was also not in privity with the owner and accordingly the appellant argues that he is therefore also covered by § 713.06, which does require the notice. Nonetheless, it is still our conclusion that notice is not required in this case. The first sentence of § 713.04 begins, “Any lienor who, regardless of whether in privity . . . furnishes material to real property for the purpose . .” (emphasis supplied). It is our opinion that by reason of this language, the lienor in the instant case falls squarely under § 713.04 and not § 713.06.

The appellant also argues that since both § 713.03 and § 713.05 specifically state that no notice is required, the concomitant failure to so state in § 713.04 should be interpreted to mean that it is required under this latter section. We reject this argument. Each of these sections is separate and distinct and stands alone. The lienor in this case is not subject to § 713.06(2), which is the only one of these sections requiring notice to owner, because it says that it only applies to “lienors under THIS SECTION” (emphasis supplied). The lienor before us is not subject to that SECTION. The final puzzling question then, is: If each section is separate and stands alone and only § 713.-06(2) mandates a notice to owner, why did the legislature under § 713.03 and § 713.05, specifically include language excusing the filing of any such notice? We believe the answer is that it was an unnecessary precaution. Had these two sections remained silent on the subject, the result should have been the same.

By a somewhat different route we note that S. Rakusin in I. Florida Mechanics Lien Manual, § 804(1) 1974, agrees with our conclusion. We also note that the legislature has seen fit to exclude lienors, who furnish materials for subdivision improvements, from the necessity of filing a notice of commencement under § 713.13 (see subpar-agraph 4 thereof). This exclusion appears to dove tail without our thinking as to the legislative purpose in the case now before us.

By this holding, we recognize that we are in direct conflict with the case of Booth v. Lombardi, Inc., 309 So.2d 51 (Fla. 2d DCA 1975). We also recognize that this question is one which will continue to arise among the plethora of cases on mechanics liens, now reaching the appellate level, as a result of the building down-turn of two years ago. Accordingly, we certify the following determinative question to the Supreme Court of Florida, deeming it to be a question of great public interest:

IS A LIENOR, NOT IN PRIVITY WITH THE OWNER, WHO FURNISHES MATERIALS FOR SUBDIVISION IMPROVEMENTS UNDER § 713.04 OF THE FLORIDA STATUTES (1975) REQUIRED TO SERVE A NOTICE ON THE OWNER AS DIRECTED BY § 713.06(2) OF THE FLORIDA STATUTES (1975)?

The appellant also argues that the joining of the surety company as a defendant in the action was untimely; this because the joinder was not accomplished until 2V2 years after the recording of the claim of lien and 276 years after the transfer of the lien to bond. This argument is not without merit by reason of Chapter 713.-24(4) Fla.Stat. (1975), which reads:

“If no proceeding to enforce a transferred lien shall be commenced within the time specified in § 713.22 or if it appears that the transferred lien has been satisfied of record, the clerk shall return said security upon request of the person depositing or filing the same, or the insurer.”

We are content, however, that this section clearly intends that any future proceedings be commenced within the year set forth in § 713.22 and does not seek to address itself to the situation where the suit has already been filed prior to the transfer, which was the case here. In other words, since suit has already been filed, a “ . . . proceeding to enforce a transferred lien . . . ” was in existence within the one year period. As appellee points out, to accept appellant’s construction of the statute would destroy its purpose under certain circumstances. For example, imagine an un transferred claim of lien sued upon within the year of filing the claim. If appellant’s urging were correct, the defendant in such a case, could lie back and defend the suit (with dilatory tactics if necessary) until the year goes by. Thereupon he should transfer the lien to bond, which would remove the lien from the real estate, yet at one and the same time the bonding company would not be liable on its bond, because more than one year had gone by since the claim of lien was filed. Such a result would be unjust and destructive of the obvious legislative intent. See Ervin v. Capital Weekly Post, 97 So.2d 464 (Fla.1957).

We also hold that the award of attorneys fees was proper and that the remainder of the points on appeal concern themselves with questions of fact from which we perceive no reversible error.

AFFIRMED.

ANSTEAD, J„ and TIMOTHY P. POUL-TON, Associate Judge, concur.

      . We are assuming that the period refers to one year from the filing of the claim of lien as in § 713.22. However, the briefs in this case raise the specter of it being one year from the date of the transfer. While we do not believe the legislature intended the latter, the choice is not crucial in the instant case.


text:
    Stella WATTENMAKER, Appellant, v. Morris Edgar WATTENMAKER, Appellee.
    No. 77-572.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Rehearing Denied May 24, 1978.
    Stephen Cahen, Miami, for appellant.
    Pepper, Clements, Hopkins & Weaver, Miami Beach, for appellee.

      Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Stella Wattenmaker, the respondent in the trial court, appeals a final judgment dissolving her marriage to Morris Watten-maker. The marriage lasted slightly less than four years. The parties were of mature age. Stella has no financial claim except the claim to alimony growing out of the marriage relationship.

The points presented urge error upon (1) the denial of her motion for continuance of the last of several trial sessions, and (2) the denial of her claim for alimony. The denial of the continuance has not been shown to be an abuse of the particular discretion of a trial judge in such matters. See In Re Gregory, 313 So.2d 735 (Fla.1975). The trial judge’s ruling that the circumstances of the parties do not call for the assessment of alimony to the wife must be affirmed under the rule set forth in Shaw v. Shaw, 334 So.2d 13 (Fla.1976); and Herzog v. Herzog, 346 So.2d 56 (Fla.1977).

Affirmed.


text:
    Phyllis Friedson DOLLINGER, Appellant, v. Howard Irwin DOLLINGER, Appellee.
    No. 77-933.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Rehearing Denied May 24, 1978.
    Robert A. Shupack and Herbert J. Marcus, North Miami Beach, for appellant.
    Edward P. Swan, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Dwyer v. Dwyer, 327 So.2d 74, 75 (Fla. 1st DCA 1976); Bell v. Bell, 307 So.2d 911, 914-15 (Fla. 3d DCA 1975); White v. White, 296 So.2d 619, 623 (Fla. 1st DCA 1974).


text:
    ROYAL GLOBE INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Dr. Fred GEHL, Appellee.
    Nos. 77-2008 and 77-2316.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Rehearing Denied May 24, 1978.

      Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellant.
    Louis Winter, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

These consolidated interlocutory appeals are from orders of the trial court denying appellant’s motion to dismiss based on lack of subject matter jurisdiction, and denying appellant’s motion for change of venue based on forum non conveniens.

The case arises out of property damage sustained by the plaintiff/appellee on August 6, 1974, following a fire in his chiropractic office in St. Louis County, Missouri. In 1976 the appellee filed suit in the United States District Court for the Eastern District of Missouri, against the appellant, claiming damages for his fire loss under the policy. The policy was issued in Missouri to appellee, who then lived and worked there. The property loss occurred in Missouri and was first denied there, and all witnesses live in Missouri. The appellee later voluntarily dismissed the suit without prejudice.

Subsequently, a lawsuit, entitled Commerce Bank of University City vs. Planned Programs, Inc., LBM, Inc., Fred Gehl, Jr., and Royal Globe Insurance Company, was filed in the St. Louis County Circuit Court, based on the same fire loss. In that action, the Commerce Bank is claiming a portion of the proceeds of the same policy sued on here. Both appellant and appellee are parties to the suit, and Royal Globe has filed in that case a cross-claim and a counter-claim, together with a petition for declaratory judgment, requesting the Missouri court to declare rights and liabilities of Commerce Bank and Fred Gehl, Jr., with respect to the proceeds payable to Fred Gehl, Jr., under the insurance policy involved. This lawsuit is still pending in Missouri.

On April 8, 1977, the appellee filed this suit in Dade County, Florida, against the appellant for the same fire loss, appellee having moved his residence to Florida.

It is the well established law of Florida that where two courts have concurrent jurisdiction of a cause of action, the first court to exercise jurisdiction has the exclusive right to hear all issues or questions arising in the case. Hogan v. Millican, 209 So.2d 716 (Fla. 1st DCA 1968); Taylor v. Cooper, 60 So.2d 534 (Fla.1952); Hunt v. Ganaway, 180 So.2d 495 (Fla. 1st DCA 1965); Blake v. Blake, 172 So.2d 9 (Fla. 3d DCA 1965). This is true even though the second suit might have been brought originally in another court with concurrent jurisdiction.

The appellee’s present suit in Florida duplicates an action pending in Missouri, and there is no jurisdiction over the subject matter to place the case properly before a Florida court. The motion to dismiss should have been granted by the trial judge.

The case of Houston v. Caldwell, 347 So.2d 1041 (Fla. 4th DCA 1977) holds that the doctrine of forum non conveniens is applicable whenever the cause of action arose outside the jurisdiction of the forum state and there are at least two forums where the defendant is amenable to process. These two essential elements are met in the present case because the cause of action arose in Missouri and the defendant is amenable to process there. The Court in the Houston case goes on to state that once the threshold requirements are met, application of the doctrine of forum non conveniens turns on considerations such as justice, fairness, and ease of access to sources of proof. There is no dispute that the present case concerns a loss occurring in Missouri among Missouri residents and that it is presently the subject of a lawsuit in Missouri where all the witnesses are located.

The recent decision of New Plan Realty Trust v. Towers Apartments, 350 So.2d 99 (Fla. 1st DCA 1977) held that the trial court there properly exercised its discretion in granting a stay in a Florida suit pending trial of the same issues in a New York suit. The court reasoned that the whole purpose of such a stay is to avoid duplication of proceedings in the two courts.

The facts are clear that the present cause of action arose in Missouri and is presently in litigation there. Both the doctrine 'of exclusive jurisdiction and the doctrine of forum non conveniens operate in this instance to bar pursuit of this action in the Florida courts.

Reversed and remanded for proceedings not inconsistent with the views herein expressed.


author: HENDRY, Judge.

text:
    The STATE of Florida ex rel. Janet RENO, as State Attorney for the Eleventh Judicial Circuit, etc., Appellants, v. Luis Bulas BARQUET et al., Appellees.
    No. 77-30.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied May 26, 1978.
    Janet Reno, State’s Atty., and Alan E. Krueger, Asst. State’s Atty., for appellants.
    Black & Denaro, Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, plaintiff below, the State of Florida, appeals from a “final order granting motion to dismiss amended complaint.” The final order is self-explanatory and is set forth as follows:

“This action was heard on Defendant’s Motion to Dismiss First Amended Sworn Complaint filed by defendants.
“1. Plaintiff seeks, in Count 1, injunc-tive relief from deceptive and unfair trade practices and, in Count II, an accounting and disgorgement of all illicit proceeds.
“2. Plaintiff contends Defendants operated a clinic at 620 Southwest 1st Street where Defendants conducted pregnancy examinations and abortions. It is alleged defendants were unlawfully engaged in the practice of medicine; the principals not being duly licensed to practice medicine.
“3. Upon this showing and a hearing this Court issued a temporary injunction prohibiting the further unlawful practice of medicine at this location.
“4. Defendant has filed a motion to dismiss Count II of the Complaint for, inter alia, failure to state a cause of action. This Count demands an accounting for all income obtained from January 22, 1975 to date for any activities of defendants at 620 Southwest 1st Street. Upon completion of this accounting all properties and instrumentalities used by defendants and all proceeds and income obtained by defendants at this location would forfeit to the State.
“5. All actions under Count II are brought pursuant to Chapter 501, Part II, Florida Statutes entitled Florida Deceptive and Unfair Trade Practices Law popularly known as the “little F.T.C. Act.” Sections 501.204 and 501.205 Florida Statutes are constitutional. Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976).
“6. Section 501.207 Florida Statutes of the Act provides all remedies for violations of the Act. The Office of the State Attorney, who is an enforcing authority under the Act, may bring an action to obtain a declaratory judgment, 501.-207(l)(a), or to enjoin any violations, 501.-207(l)(b). The question arises here whether the State Attorney may obtain damages on behalf of the State under 501.207(l)(c). It appears to me they may not.
“7. 501.207(l)(c) explicitly provides all actions for actual damages shall be brought on behalf of an( aggrieved consumer. The first Complaint was dismissed for failure to name aggrieved consumers and the Amended Complaint does not remedy this omission. The State, in its memorandum to this Court at page 42, states it is not seeking any damages in its own name yet that is what their Complaint expressly requests. It is not possible for both the State and aggrieved consumers to obtain actual damages suffered by the consumers; to hold otherwise would subject Defendants to double damages.
“IT IS THEREUPON
“ADJUDGED that the First Amended Sworn Complaint is dismissed without leave to amend.
“ORDERED at MIAMI, DADE COUNTY, FLORIDA on 20th December, 1976.”

Section 207 of Chapter 501, Florida Statutes (1977), clearly provides the methods by which the State may enforce the provisions of the “little F.T.C. Act.” The State’s attempted enforcement of Chapter 501 based upon a parens patriae action was neither a method provided for by the statute nor grounded upon the law in Florida. Dobbs v. Sea Isle Hotel, 56 So.2d 341 (Fla.1952); Alsop v. Pierce, 155 Fla. 185, 19 So.2d 799 (1944); Shell Oil Company v. State, 295 So.2d 648 (Fla.3d DCA 1974).

Accordingly, the order appealed from is hereby affirmed.

Affirmed.


text:
    ARGONAUT INSURANCE COMPANY, a Foreign Corporation, and B. G. Gross, M.D., Petitioners, v. Abigail PERALTA and Pedro Peralta, Respondents.
    No. 78-7.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied May 24, 1978.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman and William S. Reese, Miami, for petitioners.
    Sullivan, Cochran, Ranaghan, Bailey & Gleason and Philip M. Warren, Pompano Beach, for respondents.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By this petition for writ of certiorari, the petitioners seek review of an order of the trial court directing them to produce certain medical records of the petitioner, B. G. Gross.

The respondent, Abigail Peralta, employed Dr. Gross to perform certain cosmetic surgery. The procedure was unsuccessful and the respondents institute the instant action seeking damages for medical malpractice. In the course of discovery, the respondent propounded to Dr. Gross an extensive notice to produce, containing among other things the following:

“2. Any and all business records of Defendant, B. G. Gross, M. D. including can-celled checks, check ledgers, receipt ledgers, disbursement ledgers, and any and all other business records which relate to the injection of silicone in patients for the period of 1966 to present.
“23. Any and all photographs in the possession of the Defendant, B. G. Gross, M. D. or his attorneys relating to the injection of liquid silicone.
“28. Any and all medical reports, written memoranda, consent forms,' relating to silicone injections in Defendant, B. G. Gross’ patients from 1966 to present.”

The petitioners objected thereto, alleging the materials were irrelevant, the request was burdensome, and it constituted a violation of the doctor-patient privilege between Dr. Gross and persons not involved in the suit. The trial court denied the objections but ordered that the patients’ names and addresses be deleted from the records and that their faces on the photographs be blanked out.

On review, the petitioners contend it was error to order production of medical records and photographs of persons not a party to the action. We agree.

While liberal construction is to be given to rules of discovery, the request must still seek relative matters and must not be so excessive so as to be unduly burdensome to the party ordered to produce. Riddle Airlines, Inc. v. Mann, 123 So.2d 685 (Fla.3d DCA 1960); International Business Machines Corporation v. Elder, 187 So.2d 82 (Fla.3d DCA 1966); Jones v. Seaboard Coast Line Railroad Company, 297 So.2d 861 (Fla.2d DCA 1974); 10 Fla.Jur., Discovery and Depositions, § 13. Certainly, requiring the petitioner to produce his records for a period of about eleven years would be so excessive and burdensome as to require entry of a protective order. Furthermore, at this stage of the proceedings in the trial court there has been no showing of relevancy to the cause of the documents sought to be produced and they too should have been entitled to a protective order on that ground. Hoogland v. Dollar Land Corporation, Ltd., 330 So.2d 509 (Fla.4th DCA 1976).

Lastly, we are confronted with the question of doctor/patient privilege as to persons not a party to the suit. Surely when one brings a medical malpractice suit, such as the instant case, one’s medical history'becomes the subject matter of the suit and he would waive any claim to privilege he might have under the law, if any. However, to permit a party to inject into the public record medical information of a stranger to the suit, under the guise that it has a bearing on the competency of the doctor, would be unconscionable. The question in medical malpractice is whether or not the doctor, in treating the plaintiff, used a standard of care commensurate with that used in the community and that question can be answered by utilizing other methods of proof than the invasion into medical records of strangers.. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Talcott v. Holl, 224 So.2d 420 (Fla.3d DCA 1969).

We have not overlooked West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla.1st DCA 1975) and Springer v. Greer, 341 So.2d 212 (Fla.4th DCA 1976), relied upon by the respondent. However, we find they are not applicable. Neither of these cases seek specific medial information about persons not a party to the case, but rather they merely seek information about the occurrence of a specific incident which could be provided without going into the medical history of the persons involved.

Therefore, certiorari is granted and the order reviewed is hereby quashed, and this cause is remanded for further proceedings not inconsistent herewith.


author: GRIMES, Acting Chief Judge.

text:
    GASPARILLA INN, INC., Appellant, v. SUNSET REALTY CORP., Appellee.
    No. 77-1283.
    District Court of Appeal of Florida, Second District.
    May 3, 1978.

      Howard S. Rhoads of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, P.A., Fort Myers, for appellant.
    Robert G. Jacobson of Farr, Farr, Hay-mans, Moseley & Odom, Port Charlotte, for appellee.
   GRIMES, Acting Chief Judge.

This is an appeal from the denial of a request for mandatory injunction and a cross-appeal from the award of monetary damages in lieu thereof.

In 1969 the parties to this suit each owned one half of an island situated between a navigable bayou on the west and Charlotte Harbor on the east. Appellee owned the north half of the island and appellant the south half. Appellee wanted to provide vehicle access to its part of the island over a twelve foot high bridge across the navigable bayou. Since this would block the bayou to boat traffic, the appellee was required to build a canal across its half of the island in order to provide navigable access to Charlotte Harbor.

After obtaining the appropriate permits, the appellee caused the canal to be dug. The canal which ran east and west was located entirely within the boundaries of the appellee’s land, but the south shoreline of the canal was located only fifteen feet from the common property line between appellee and appellant. The appellee later built a seawall along the north shoreline but the south shoreline remains unprotected. Part of appellant’s golf course is located on its land lying south of the canal. Eventually the fifteen foot buffer south of the canal eroded away, and the canal’s southern shoreline began to creep onto appellant’s land at various points.

Appellant filed suit against appellee seeking a mandatory injunction to require ap-pellee to prevent further erosion of appellant’s land and damages for injuries to the land caused by the canal. Prior to trial the appellant dropped its claim for past damages. Following the taking of testimony and a view of the property, the court concluded that in certain areas the appellee’s canal would cause water to trespass on the appellant’s land and that the erosion caused by the trespass would be of a continuing nature and require remedial action. Paragraphs 5 and 6 of the final judgment stated:

5. In the Court’s opinion, rather than mandatorily requiring construction of preventative devices (which would be one form of appropriate relief in this case but which would require subsequent court administration and supervision), the Court has arrived at a monetary equivalent to the relief requested for those areas where remedial attention is needed. That is, the Court finds that the monetary equivalent to the construction necessary to once and for all abate and terminate the erosion problems caused by the trespass is $36,000.00.
6. The Court finds from the testimony (which included expert projections and expert opinions of future erosion problems) that the erosion will continue in those areas designated in paragraph seven and will not continue in the areas not specifically designated in paragraph seven. The total area litigated is the northerly boundary of the island from the northwest corner to the northeast corner.

Thereafter, by reference to certain exhibits the court endeavored to designate those areas where the erosion would continue. The judgment provided that the award when paid would once and for all settle the dispute existing between the parties and specified that if the $36,000 was not paid within twenty days a mandatory injunction would be entered for construction of preventive devices sufficient to stop the erosion in the areas designated by the court.

The appellant contends that the court should have ordered a mandatory injunction requiring the appellee to construct preventive devices sufficient to stop the erosion throughout the length of its property line or, in any event, should have awarded to the appellant sufficient monies to do the necessary construction along the entire canal. The appellee argues that it cannot be held liable for damage to the appellant’s property because there was no proof that it proximately caused any injury to the appellant. The appellee also asserts that appellant’s claim is barred by the statute of limitations and laches. Finally, the appel-lee argues that even if liability is established the appellant has suffered no damages for appellee’s trespass because the value of appellant’s land has been enhanced by virtue of it having become waterfront property.

We will first discuss the question of appellee’s liability because if the court was wrong here, there would be no need to consider the other issues. However, we find no error on this point. The witnesses generally agreed that the erosion was caused primarily by the wake of boats traversing the canal at high speed rather than by any inherent defect in the design or construction of the canal. Be that as it may, the appellant’s claim is predicated upon the fact that appellee excavated a canal under circumstances where'the southern shoreline would erode unless some sort of shoreline stabilization were installed. The continuing presence of boat wakes was certainly foreseeable, particularly since the admitted purpose of the canal was to carry boat traffic. See Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla.3d DCA 1976); Leib v. City of Tampa, 326 So.2d 52 (Fla.2d DCA 1976). The evidence clearly supports the court’s conclusion that the appellee’s construction of the canal was proximately related to the continuing damage to appellant’s property through erosion. Likewise, in view of the equivocal nature of the evidence as to when the canal began to erode into the appellant’s land, we cannot say the court erred in rejecting the appellee’s affirmative defenses of limitations and laches.

The more difficult questions relate to the relief awarded to the appellant. Since the court indicated that the appellant had made a case for injunctive relief, the appellant argues that it was error to direct the payment of a monetary sum in lieu thereof. Yet, it is well settled that the determination of whether to grant a mandatory injunction rests largely within the discretion of the trial court. State Road Dept. v. Newhall Drainage Dist., 54 So.2d 48 (Fla.1951); Turk v. Hysan Products Co., 149 So.2d 584 (Fla.3d DCA 1963). The courts are seldom reversed for refusing to grant mandatory injunctions. See McDowell v. Trustees of the Internal Improvement Fund, 90 So.2d 715 (Fla.1956). Had the court declined to grant appellant any relief, another question might be presented. Here, the court fashioned relief in the form of a monetary award, and in this factual situation there is considerable logic in such an approach.

On the other side of the coin, the appellee contends that once the court decided to deny the injunction, there was no alternative to dismissing the case because the appellant had already dropped its claims for damages caused by the trespass of appel-lee’s canal. Appellee further argues that even if the court was authorized to award damages, the court adopted an improper measure of damages. Ordinarily, the measure of damages for trespass is the difference in the value of the land before and after the trespass. Hutchinson v. Courtney, 86 Fla. 556, 98 So. 582 (1923). The only witness on comparative values testified that if appellant’s land were adapted to its highest and best use, its value would be substantially increased by the construction of the canal regardless of the erosion, and that even its value for use as a golf course had been enhanced to some extent by virtue of the proximity of the water. Appellee suggests that, at the most, appellant was entitled to nominal damages.

We would find nothing wrong with the appellee’s analysis if this were a simple suit claiming damages for trespass. However, the monetary amount was not an award of damages, as such, but was an alternative vehicle toward accomplishing without the need for court supervision what might have been obtained through a mandatory injunction. According to the testimony, there were three ways to stop the erosion. The first was to fill up the canal, the second was to close it off at each end, and the third was to construct some sort of device which would prevent further erosion from taking place. Thus, we believe it was within the court’s prerogative to decline to grant a mandatory injunction and to require, in lieu thereof, the appellee to pay the appellant an amount of money sufficient to cover the costs reasonably necessary to prevent further erosion.

The method employed is somewhat analogous to relief sometimes granted when one has built a structure which slightly encroaches upon his neighbor’s property. When the construction has been completed and there is no showing of intentional encroachment, the courts are reluctant to grant a mandatory injunction requiring the removal of the property because of the inordinate cost. Nevertheless, monetary awards have been entered against the encroaching party which are higher than the market values of the small portions of property which have been taken. The unspoken rationale for upholding these decisions seems to be that the encroaching party is in no position to complain since the result could have been worse. E. g., Graven v. Backus, 163 N.W.2d 320 (N.D.1968); Oertel v. Copley, 152 Cal.App.2d 287, 313 P.2d 105 (1957); Drenkowski v. Goodman & Cook, 43 N.J.Super. 206, 128 A.2d 505 (Ch.Div.1957). Here, at least the court attempted to tie in the monetary award to what it would cost to prevent further erosion.

We disagree with the judgment in only one particular. The court found that the erosion would continue to occur only in certain specified areas which approximated half the length of the canal. The amount of the monetary award was predicated upon what the court believed it would cost to erect erosion preventing devices in these areas. However, except for one specific location, the undisputed testimony of the expert witnesses was to the effect that the canal would continue to erode along its entire length. One of the experts called by appellant said that the erosion would likely extend another fifty feet into the appellant’s land. The appellee’s expert only disagreed with respect to the length of time the bank might take to reach this point. Thus, there was no evidence in the record upon which the court could have concluded that the erosion will not continue except in those areas specifically designated, and the court’s view of the property could not provide a foundation for these findings. Atlantic Coast Line R. Co. v. Hendry, 112 Fla. 391, 150 So. 598 (1933). In fact, one of the experts testified that the erection of separated seawalls in only those areas where the erosion was the worst would aggravate the erosion in the areas adjacent to those seawalls.

Accordingly, we affirm that part of the judgment which denies a mandatory injunc-' tion but awards to the appellant an amount equivalent to the cost of the construction necessary to abate the erosion problems caused by the canal. The case is remanded for a re-evaluation of the amount of the award so that it will cover the cost of preventing further erosion along the entire length of the canal except for the two areas specified in footnote 4. Since the testimony concerning the manner and cost of remedial construction seemed to be incidental to the issues to which the parties directed their attention at the original trial, the court should entertain further testimony concerning the cost of appropriate construction reasonably necessary to stop the erosion.

SCHEB and OTT, JJ., concur.

      . The counts for injunction which remained in the amended complaint did include a prayer for damages incident to the granting of injunctive relief. See McGriff v. McGill, 62 So.2d 28 (Fla. 1952); Winn & Lovett Grocery v. Saffold Brothers Produce Co., 121 Fla. 833, 164 So. 681 (1935).

      . At the time of the trial the southern bank of the canal had eroded across the appellant’s property line in nine separate places. The areas in which the court concluded that further erosion, would occur bear some approximation to the locations in which the erosion had crossed the property line but do not seem to coincide in every instance.

      . In response to a question from the court, one of the appellant’s expert witnesses testified that it would probably cost from $35 to $50 a foot to erect a suitable seawall which would stop the erosion.

      .In a specified area at the east end of the canal, sand has been carried against a short seawall and has been deposited at this location as accretion, thereby preventing erosion. There is also some erosion around the mouth of what appears to be an outlet drain crossing appellant’s property which cannot be attributed to the appellee.


text:
    CINCINNATI FAN AND VENTILATOR COMPANY and Atlantic Mutual Insurance Company, Petitioners, v. Frank E. GARCIA, Respondent.
    No. 78-581.
    District Court of Appeal of Florida, Second District.
    May 3, 1978.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for petitioners.
   PER CURIAM.

The petition for writ of certiorari is denied without prejudice to the right of petitioners to seek review of the matters contained therein by way of an appeal from the final judgment. Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla. 2d DCA 1973). See also Pratt v. Durkop, 356 So.2d 1278 (Fla. 2d DCA 1978).

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.


author: SCHEB, Judge.

text:
    Jack L. MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 77-1757.
    District Court of Appeal of Florida, Second District.
    May 5, 1978.
    Rehearing Denied May 25, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant Mitchell was found guilty of selling heroin in violation of Section 893.-13(l)(a)(l), Florida Statutes (1975). On this appeal he contends he was denied due process of law because the police failed to produce a tape recording they made of the alleged drug transaction, even though he requested the tape through discovery. Under the peculiar circumstances of this case we agree with appellant and, therefore, reverse his conviction.

The state filed an information on May 18, 1977, charging appellant with sale and delivery of heroin on the preceding March 14. On May 23 appellant filed a comprehensive demand for discovery pursuant to Fla.R. Crim.P. 3.220. Paragraph 8 of the demand asked “whether there has been any electronic surveillance including wiretapping of the premises of the Defendant or of conversations to which the Defendant was a party; and, any documents relating thereto.” The state’s compliance was delivered to defense counsel on October 10, the day of the trial, and indicated the state had no “electronic surveillance of the premises of which the accused was a party, and documents relating thereto.”

At trial Detective White of the Pinellas County Sheriff’s Department testified that on March 14 he was working undercover to assist the Hillsborough County Sheriff’s Department in narcotics investigations. White said that on that day he attempted to make a buy from appellant at the New Lounge in Tampa. He identified appellant as having sold him two tinfoil packets of heroin for $20. During the transaction White was wearing an electronic transmitter, commonly called a body bug.

Detective Doss from the Hillsborough County Sheriff’s Department testified that he and his colleague, Detective Latimer, monitored and recorded the transmission from White’s body bug from their position across the street from the New Lounge. Doss testified that only background noise, music, and unintelligible voices were picked up on the tape. He further testified that he did not know appellant and did not see the transaction.

The defense called Detective Latimer, who also testified that there were no distinguishable voices on the tape. The defense attempted to impeach Latimer on the basis of his discovery deposition, taken five days before trial, in which Latimer purportedly said there were voices on the tape which could be made intelligible by means of some sort of electronic device. However, the deposition itself was never introduced into evidence. From Latimer’s testimony it appears that he had said in his deposition the tape was clear and that if it wasn’t it could be “cleared up” by means of an electronic device. The detective further testified that he did not learn that the tape had been erased until after his deposition.

Appellant took the stand on his own behalf. He stated that although he worked near the New Lounge ánd had been there on occasion, he did not recall being there on March 14. He emphatically denied ever having met Detective White or ever having sold or given heroin to anyone.

Thus, it was undisputed that when the officers conducted the investigation which led to the charge against appellant they made a tape recording of the transaction with the expectation that this voice evidence would identify appellant as a heroin seller. Likewise, it is undisputed that despite defense counsel’s timely demand the tape was never produced, but was, in fact, erased while in the possession of the state. The evidence does not reveal whether the erasure was intentional or inadvertent; nor even when it occurred. However, it may be inferred the erasure was made after defendant’s discovery demand.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963), the United States Supreme Court held:

[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The First District Court of Appeal applied the Brady principle in Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975). There it was held that the unintentional destruction of a tape recording of a transaction out of which defendants were charged, after timely demand for discovery, violated the defendants’ right to due process. In a specially concurring opinion Chief Judge Boyer noted that the mere inadvertent destruction of evidence would not ipso facto lead to reversal, but rather it must be demonstrated that the destroyed evidence was material and that the defendant was prejudiced by the destruction. 317 So.2d at 144.

The facts of Sobel v. State, 349 So.2d 747 (Fla. 3d DCA 1977), are almost identical to those of this case. Sobel was convicted of sale and delivery of a controlled substance. The testimony reflected that the drug transaction took place in Sobel’s car with an undercover officer and informant in the back seat. There, as here, the undercover officer was outfitted with an electronic transmitter, the signal from which was monitored and recorded by another officer elsewhere. Only this latter officer heard the tape made of the transaction, and he testified that he destroyed it because he could only hear indistinct sounds and static. There, also, the defendant denied taking part in the transaction which led to his arrest. On appeal the third district held that the defendant had been denied due process because he was unable to examine the destroyed tape and utilize it in his defense if he so desired.

We agree with the rationale of our sister courts in the first and third districts. In the ordinary situation the trial court must make an evidentiary determination as to whether the evidence withheld by the state is material to the defendant’s guilt or punishment. However, undisclosed evidence which does not raise a reasonable doubt as to the defendant’s guilt will not require a reversal. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Briskin v. State, 341 So.2d 781 (Fla. 3d DCA 1977). See Antone v. State, 355 So.2d 777 (Fla.1978).

Unfortunately, the tape in the instant case has been destroyed and is not susceptible to review under the above standard. But it must be noted that here, just as in Sobel and Farrell, the only testimony available as to the nature of the evidence came from the persons responsible for its destruction. And while we do not in any way impugn the credibility of the officers who testified, we must point out that the testimony of Detective White, who identified appellant as having participated in the transaction, was in direct conflict with appellant’s testimony. So, the testimony devolved into a one-against-one situation, and it therefore became crucial to appellant to have access to the tape which he claims would have corroborated his version of the critical events. This circumstance, coupled with the testimony of Detective Latimer possibly indicating discernible voices on the tape, raises a reasonable doubt in our minds as to appellant’s guilt.

Accordingly, the trial court is directed to vacate appellant’s judgment and sentence, and discharge him.

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

      . We realize the tape may have been erased before the discovery demand. In any event, we think the police should have preserved it. It has now become common practice for defense counsel to seek discovery of any evidence that may be favorable to a defendant. Prudent police practices would seem to require law enforcement agencies to preserve and protect such evidence, even if it appears to them to be of doubtful value.


author: DANAHY, Judge.

text:
    Frederick J. HOHL and Clara Hohl, Individually and as Administrators of the Estate of Norman Kent Hohl, Appellants, v. CROOM MOTORCROSS, INC., a Florida Corporation, and National Automobile Racers Insurance Company, a Foreign Corporation, Appellees.
    No. 77-2006.
    District Court of Appeal of Florida, Second District.
    May 5, 1978.
    John M. Edman of Meros, Coit, Edman & Meros, St. Petersburg, for appellants.

      Charles P. Schropp of Shackleford, Farri- or, Stallings & Evans, Tampa, for appellees.
   DANAHY, Judge.

This wrongful death case came to us as an interlocutory appeal from an order denying a motion to file an amended complaint. The order may not be reviewed by interlocutory appeal, but we choose to treat the appeal as a petition for certiorari. Certio-rari is granted and the order is quashed.

Petitioners’ decedent died on April 14, 1974 from injuries sustained in an accident on a motorcycle racetrack which occurred on April 7, 1974. A two-year statute of limitations applied to actions for wrongful death.

On April 2, 1976, petitioners filed this action for their decedent’s wrongful death, naming as defendants Croom Motorcross, Inc. and National Automobile Racers Insurance Company. The former was described in the complaint as the owner and operator of the racetrack in question at all material times; the latter was named as the liability insurer.

On January 24, 1977, petitioners took the deposition of Samuel G. Yarn, president of Croom Motorcross, Inc. He testified that Croom Motorcross, Inc. operated the racetrack. However, his further testimony revealed that Croom Motorcross, Inc. was incorporated sixteen days after the accident which caused the death of petitioners’ decedent and its incorporation was stimulated by that event; that prior to the incorporation of Croom Motorcross, Inc., the racetrack in question was operated by Samuel G. Varn and H. Fred Varn, his brother, as a partnership; and that the brothers and their mother were the sole stockholders and officers in the corporation subsequently formed. Samuel G. Varn further testified that the name of the predecessor partnership business was “The Pitstop Presents.” However, his testimony also indicated that while operated by the partnership, the racetrack (or a race or races there) used the name “Croom Motorcross” and that the racetrack was located in an area known to motorcycle riders as “The Croom.” Finally, Samuel G. Varn testified that the correct name of the liability insurer of the racetrack was National Auto Racing Services, Inc.

On February 11, 1977, petitioners moved for leave to file an amended complaint. The proposed amended complaint, which was attached to the motion, was identical to the original complaint except that the defendants therein named were described as “Sam Varn and H. Fred Varn, individually, and doing business as The Pitstop Presents and National Auto Racing Services, Inc., a foreign corporation.” The trial judge denied the motion for leave to file an amended complaint, apparently on the basis that, as to the defendants named in the proposed amended complaint, the statute of limitations barred petitioners’ action. We believe the trial judge should have granted the motion.

In the trial court and in this court, petitioners’ argument in support of the motion centered on their contention that former Section 734.27, Florida Statutes (1973), which was in effect on the date the cause of action accrued, applied to the action and prevented the bar of the statute of limitations. That statute was repealed effective July 1,1975. Even if, despite its repeal, the statute were available to petitioners, it clearly did not and cannot here apply to an action for wrongful death.

Petitioners, however, pose an alternative argument which has merit. They assert that the proposed amended complaint should have been allowed because, under Fla.R.Civ.P. 1.190, it would relate back to the filing of the original complaint. Rule 1.190 provides in part as follows:

(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party and leave shall be given freely when justice so requires.
(c) Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading. (emphasis added)

It is clear that, under some circumstances, an amendment of a complaint to add defendants or substitute defendants will be deemed to relate back to the time of the filing of the original complaint and thus defeat the bar of the statute of limitations. In Cabot v. Clearwater Construction Company, 89 So.2d 662 (Fla.1956), the supreme court adopted a liberal approach in reversing an order denying a motion to amend so as to change the description of the defendant. There the initial complaint named as a defendant “Clearwater Construction Company, a corporation organized and existing under the laws of the State of Florida.” The court held that the trial judge should have permitted an amendment showing the defendant to be “Robert M. Snyder, doing business as Clearwater Construction Company, not incorporated.” The court recognized that, if the complaint were dismissed and the filing of a new suit required, the action might have been barred by the applicable statute of limitations. The court characterized the case as being one of “misnomer” and made the following observation:

The amendment requested would not in any fashion change the cause of action. Actually, according to the return of the sheriff the real party-defendant was served. His own special appearance and participation in the cause suggests that he obviously had notice of the proceeding against him. Id. at p. 665.

Following Cabot, several Florida cases have extended the misnomer rule further. Those cases suggest that an amendment should be permitted where the originally named defendant is related to the proper defendant and, through its participation in the proceedings or otherwise, has led the plaintiff to believe that the correct defendant was sued. Argenbright v. J. M. Fields Co., 196 So.2d 190 (Fla.3d DCA 1967); Galuppi v. Viele, 232 So.2d 408 (Fla.4th DCA 1970) and B & H Sales, Inc. v. Fusco Corporation, 342 So.2d 105 (Fla.2d DCA 1977). In each of these cases, circumstances were found which made it unfair or unjust to deny the plaintiff the right to change the defendant so as to avoid the bar of the statute of limitations.

The portion of the record below included in petitioners’ appendix does not reveal whether the facts in this case fit the holdings in Cabot and its progeny; however, there is enough here to persuade us that this case should be remanded so that the trial judge can make that determination. Such a determination may require further proceedings to ascertain all of the pertinent facts.

We know that Samuel G. Varn and his brother, H. Fred Varn, are two of the three stockholders and officers of Croom Motor-cross, Inc. and were the sole partners in the predecessor business. We also know that the name of the corporation is the same as a name used by the partnership in the operation of the racetrack. And we know that the attorneys representing Croom Motor-cross, Inc. appeared below and in this court to argue on behalf of the predecessor partnership in opposition to petitioners’ motion to file an amended complaint.

We do not know on whom service of process was made with respect to the original complaint, and when. We do not know what defensive pleadings have been filed by Croom Motorcross, Inc., and when. And we do not know what facts, if any, may be present which would support a conclusion that petitioners were misled into believing that Croom Motorcross, Inc. was the correct party defendant.

Had the trial judge granted the motion for leave to file the amended complaint, and had the new defendants asserted the statute of limitations by way of defense, petitioners would have had an opportunity to present proper arguments against the bar of the statute of limitations. Denial of the motion constituted a departure from the essential requirements of the law which effectively foreclosed petitioners from their day in court without an adequate remedy by appeal.

The petition for certiorari is granted. The order below is quashed and this cause is remanded for further proceedings consistent with this opinion.

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

      . Former § 734.27 provided:
      If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof and the cause of action survives, the action may be commenced by his ' personal representative after such expiration and within twelve months from the granting of letters.
      (Letters of administration were issued to petitioners ten months prior to their motion to file an amended complaint.)

      . The same rules developed by the federal courts were incorporated in Federal Rule of Civil Procedure 15(c) in 1966 by the addition of the second sentence:
      (c) Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. (emphasis added)
      The 1966 amendment to the federal rule embraces both an estoppel test and cases of misnomer. 3 Moore’s Federal Practice, Para. 15.-15, at 1050 (2d Ed. 1974).


text:
    Arthur E. BOLINGER and Donna M. Bolinger, his wife, Appellants, v. Joseph L. MURRELL, Sr., and U. S. Fidelity & Guaranty Company, Appellees.
    Nos. 78-44, 77-1952.
    District Court of Appeal of Florida, Second District.
    May 5, 1978.
    Ronald H. Schnell of Carr & Schnell, St. Petersburg, for appellants.
    Henry E. Coleman, Tavares, for appel-lees.
   PER CURIAM.

Reversed. See Travelers Insurance Company v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978); Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971).

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


author: MILLS, Judge.

text:
    Jerry L. CRIPE, Appellant, v. BOARD OF REGENTS and Dallas Fox, Appellees.
    No. HH-371.
    District Court of Appeal of Florida, First District.
    May 8, 1978.

      Herbert T. Schwartz of Schwartz & Wilson, Gainesville, for appellant.
    Ashmun N. Brown, Gainesville, for appel-lees.
   MILLS, Judge.

The trial court dismissed Cripe’s complaint for defamation and for other relief with prejudice. Cripe appeals contending the trial court erred in finding the alleged defamatory statements were absolutely privileged and in finding he failed to exhaust his administrative remedies as to the other relief he sought.

It appears from the complaint and attached exhibits that Cripe was employed by the Division of Planning and Analysis of the University of Florida. Fox was the Associate Director of the Division and Cripe’s immediate supervisor. The alleged defamatory statements attributed to Fox were contained in several employee performance evaluation reports which he was required by Fla.Admin.Code Rule 6C-5.24 to make on Cripe. Fox rated Cripe’s performance unsatisfactory and as a result Cripe was terminated as an employee.

In McNayr v. Kelly, 184 So.2d 428 (Fla.1966), our Supreme Court stated that executive officials of government are absolutely privileged as to defamatory statements made in connection with the performance of the duties and responsibilities of their office. In the McNayr case, a county manager was held to be an executive official of government to whom absolute privilege was extended. The question we must decide is whether an associate director of a division of the University of Florida is an executive official of government to whom absolute privilege is extended.

There is uncertainty as to how far down the ladder absolute privilege extends. There is authority that minor officials are entitled only to qualified privilege. Recent decisions, however, have moved away from the distinction on the basis of rank and look rather to the duties which the officer is required to perform. 26 A.L.R.3d 496 and see 510-515.

In our judgment, an Associate Director of the Division of Planning and Analysis of the University of Florida who is required by a division rule to evaluate the job performance of employees supervised by him is absolutely privileged as to defamatory statements made by him in connection with the evaluations. To hold otherwise would defeat the purpose of the rule requiring employee performance evaluations. A supervisor would not be candid in his evaluations because of a fear of being sued for defamation. An employee who was dissatisfied with his rating would sue and the already overburdened taxpayers would become burdened again with additional governmental expenses to pay.

In addition to seeking damages for his alleged defamation, Cripe also sought to have the evaluation reports of Fox removed from his personnel records and sought to be reinstated to his former job or to a comparable job.

A prerequisite to seeking judicial relief is exhaustion of administrative remedies. School Board of Flagler County v. Hauser, 293 So.2d 681 (Fla.1974). For expungement of records and for reinstatement to his former job or to a comparable job, Cripe should have proceeded under Chapter 120, Florida Statutes (1975). Cripe failed to pursue and exhaust his administrative remedies.

We affirm the order appealed.

McCORD, C. J., and BOYER, J., concur.


author: DAUKSCH, Judge.

text:
    ALLIED BONDING AGENCY, INC., a Florida Corporation, Appellant, v. STATE of Florida and Raymond Arthur McAbee, Appellees.
    No. 77-600.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    C. J. Collom of Cullom & Cullom, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond and John D. Cecilian, Asst. Attys. Gen., West Palm Beach, for appellee-State of Florida.
   DAUKSCH, Judge.

The trial court estreated the bond of a defendant who failed to appear and the appellant was required to forfeit the amount of the bond since it was the surety for the defendant. Within one year of the forfeiture the surety apprehended and surrendered the defendant to the court. The court readmitted the defendant to bail and a short time later the defendant was permitted to enter his plea of nolo contendere to the crime originally charged. When the bondsman went to the court to have the forfeited bond remitted this was denied even though Section 903.28, Florida Statutes (1975) says the court shall order the remission unless the delay has thwarted the proper prosecution of the defendant. United Bonding Insurance Company v. State, 242 So.2d 140 (Fla. 1 DCA 1970); Leach v. State, 293 So.2d 77, (Fla. 1 DCA 1974). The record discloses no evidence the delay, caused by the defendant’s having failed to appear, thwarted the proper prosecution of the defendant. Of course, any disappearance of a defendant delays and thereby somewhat thwarts prosecution but we cannot say every disappearance thwarts prosecution or the statute, Section 903.28, Florida Statutes (1975), would be rendered meaningless. That provision of the statute which provides remission of the forfeited bond is meant to reward a diligent surety for the return of the principal. Leach, supra. To disallow the remission would be to allow the diligent to go unrewarded and the lack of reward would surely lead to the thwarting of the prosecution because there would be no incentive to the surety.

The order denying the remission is reversed and this matter is remanded for entry of an order granting full remission of the bond to the surety.

REVERSED AND REMANDED.

CROSS and ANSTEAD, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    Edward F. KEEZEL, II, Appellant, v. STATE of Florida, Appellee.
    No. 77-863.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.

      James K. Freeland, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond and John D. Cecilian, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

The trial judge found Keezel, a lawyer, guilty of two instances of criminal contempt arising out of Keezel’s representation of a defendant in a criminal case.

The first alleged contempt occurred when Keezel arrived for trial twenty-five minutes late. The second alleged contempt involved Keezel’s announcement in the presence of the jury venire that he had been retained as counsel only the preceding day. This statement was a response to a direct question by the judge. The trial judge fined Keezel $50.00 for the first contempt and $150.00 for the second.

Fla.R.Crim.P. 3.830 requires that before a person is found guilty of a direct criminal contempt and punished the Judge must advise the person of the accusation against him and inquire whether the person has any cause to show why he should not be adjudged guilty of contempt. The Judge must also give the person the opportunity to present evidence of excusing or mitigating circumstances. Neither one of these important facets of this rule was honored by the trial judge here. No doubt Keezel knew what the facts were upon which the adjudication was based, but he was not given the slightest opportunity to show cause why he should not be held in contempt nor to show any excusing or mitigating circumstances.

This rule is frequently violated we would suppose due to the circumstances and atmosphere which frequently prevail in direct contempt situations. Often the trial judge has been provoked or has become exasperated by delays or by other conduct which tries his patience. But patience is one of the characteristics which go to make up a good judicial temperament. Adjudicating a person, and particularly a lawyer, in contempt is a serious matter to be approached judiciously. No doubt that is why the rule requires that the person be afforded an opportunity to explain his conduct before being adjudicated guilty.

Keezel may or may not have been guilty of contempt, but the adjudication here was premature and must be reversed so that Keezel will be afforded the opportunities granted by the rule to explain his conduct.

This case involves another question of more general interest which we deem worthy of mention. Keezel paid the $200.00 fine and, accordingly, appellee suggests the question raised on appeal is moot and should not be considered. There is respectable authority for such a contention, but for the reasons hereafter set forth we conclude the matter is not moot.

Many of the cases discussing appeals as moot where the contemnor has paid the fine or served the sentence levied for contempt of court rely upon the decision of the Supreme Court of the United States in St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943). There the court held that the case was moot because the petitioner had fully served his sentence before certiorari was granted. However, in a later case the court refined the rule by stating that St. Pierre “must be read in [the] light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” (88 S.Ct. at 1900). In the case of United States v. Schrimsher (In re Butts), Attorney at Law, 493 F.2d 842 (5th Cir. 1974), some of the legal consequences which might accrue to a lawyer as a result of an adjudication of contempt were pointed out when the court said:

“. . . Butts’ conviction for contempt presumably could be used for impeachment and sentencing purposes in any future criminal proceeding. This conviction would be especially damaging if Butts were ever again accused of being in contempt of court. Conviction for contempt of court could also have serious adverse career consequences for Butts. His conviction could provide a basis for disciplinary action by a bar association. Opportunities for appointment to the bench or to other high office might be foreclosed as a result of this blot upon his record. The conviction might damage Butts’ reputation in the legal community, and this in turn might affect his ability to attract clients and to represent them effectively, especially in open court. In light of these possible collateral consequences, Butts’ appeal is not ‘abstract, feigned, or hypothetical’ so as to justify dismissal for mootness.” (cites omitted) Id. at 844.

Envisioning the possibility of definite adverse legal consequences flowing from Keezel’s adjudication of contempt, we find the issue not moot even though Keezel has paid the fine levied and may not be able to effect its return.

In view of the foregoing, we reverse the order appealed from and remand the cause to the trial court with directions to allow appellant a hearing so as to conform to the requirements of Fla.R.Crim.P. 3.830.

REVERSED AND REMANDED with directions.

MOORE, J., and RIVKIND, LEONARD, Associate Judge, concur.

      . Jacobs v. State, 327 So.2d 896 (Fla. 3rd DCA 1976); McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975); Weech v. State, 309 So.2d 246 (Fla. 4th DCA 1975), and Miller v. State, 305 So.2d 826 (Fla. 4th DCA 1975).

      . Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).


text:
    Shannon SHIRLEY by her mother and guardian Dollie Shirley and Dollie Shirley, Individually, Appellants, v. ROPER BROTHERS, INC., National Beverages, Inc., Pepsico, Inc., and Insurance Company of North America, Appellees.
    No. 77-883.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    William A. Grimm of Troutman, Parrish & Weeks, P. A., Winter Park, for appellants.
    Michael A. Estes of D’Aiuto, Walker & Buckmaster, Orlando, for appellees — Roper and INA.
    W. David Rogers, Jr., of Rogers & Dowl-ing, Orlando, for appellees — National Beverages and Pepsico.
   PER CURIAM.

Our consideration of the briefs and record leads us to the conclusion that no genuine issue of fact exists in this case and the trial court was correct in granting summary final judgment.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

DOWNEY, C. J., and CROSS and LETTS, JJ., concur.


text:
    STATE of Florida, Plaintiff, v. Vivian McCORMICK, Defendant.
    No. 77-1034.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Douglas Cheshire, Jr., State’s Atty., and Norman R. Wolfinger, Asst. State’s Atty., Titusville, for plaintiff.
    Peter Haddad, Titusville, for defendant.
   PER CURIAM.

The trial court has certified the following question to us:

“Whether the use of the object in question must produce great bodily harm, permanent disability, or permanent disfigurement resulting from an assault and battery to sustain the burden of proof under Florida Statute 784.045(l)(b). If the State must show these elements and cannot, would it not be a simple assault and battery?”

Our answer to the above question would not be determinative of the cause and the question is not without controlling precedent in this State as required by Rule 4.6, Florida Appellate Rules. The certified question, therefore, must be denied. See Oglesby v. Powell, 318 So.2d 406 (Fla.App. 1st 1975).

Certified question denied.

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


text:
    STATE of Florida, Appellant, v. Charles DAWSON and Craig Gordon Christiansen, Appellees.
    Nos. 77-1777, 77-1778.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed and remanded for further proceedings consistent with the views expressed in Gray v. State, 356 So.2d 848 (Fla. 4th DCA 1978).

CROSS, ANSTEAD and MOORE, JJ., concur.


author: DOWNEY, Judge.

text:
    AMERICAN INTERNATIONAL FOOD CORPORATION, a Florida Corporation, Appellant, v. Jacqueline J. LESKO, Appellee.
    No. 77-1926.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.

      Steven J. Vann of Dayton, Sorota & Zschau, Clearwater, for appellant.
    Richard D. Schuler of Montgomery, Ly-tal, Reiter, Denney & Searcy, West Palm Beach, for appellee.
   DOWNEY, Judge.

Once again we are called upon to decide where a cause of action accrued in order to determine the proper venue of the litigation.

Appellee sued appellant for damages in Palm Beach County. The complaint alleged, in pertinent part, in Count I that appellee purchased ah orange grove in Charlotte County and contracted with appellant to maintain the grove. In addition to the maintenance contract, appellant agreed to market the fruit and account to appellant for the profit. However, appellee alleged that appellant:

“. . . breached the above agreements and (sic) failing to properly care for these citrus trees, failing to provide the Plaintiff with an accounting for approximately two and one-half years (2V¿), failing to pay any profit from the grove or (sic) in excess of two (2) years, failing to provide the Plaintiff with a satisfactory title insurance policy.”

In a second count the complaint alleged fraud and misrepresentation in the formation of the contracts. In both counts appel-lee prays for damages against appellant in excess of $2500.00.

Appellant moved the court to transfer the cause to DeSoto County, alleging that the venue in Palm Beach County was improper because appellant had no office in Palm Beach County for the transaction of its customary business; the property involved in the litigation is located in Charlotte County; and the cause of action did not accrue in Palm Beach County. The trial court’s denial of that motion precipitated this interlocutory appeal.

It is apparent that venue in Palm Beach County can only be proper if the cause of action accrued in that county inasmuch as neither the appellant’s place of business nor the property in litigation is in Palm Beach County. Appellee contends that the cause of action did accrue in Palm Beach County because that is the residence of the appellee and that is where the default occurred. The appellee maintains that the default was appellant’s failure to account for and pay the profits to her in Palm Beach County. Appellee relies upon the generally accepted rule that where there is an express promise to pay a sum of money and no place of payment is stipulated, the debtor should seek the creditor; hence, the venue of a breach consisting of a failure to pay money due is where the creditor resides. Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966). Appellant, on the other hand, contends that the cause of action accrued where the breach of contract occurred and in this case the breach took place in Charlotte County where performance was required.

While the end result of the successful operation of the grove by appellant would be that appellant eventually pay money by way of profits to appellee, we believe the nature of the breach of contract here as set forth in the gravamen of appellee’s complaint shows the cause of action accrued in Charlotte County. Appellee alleged appellant failed to properly care for the trees in the grove, failed to account for profits for over two years and failed to furnish appel-lee with a satisfactory title insurance policy.

The general rule providing for venue in the county of the residence of the creditor where the claim is for a specific sum of money and no place of payment is stipulated is usually linked to situations where the default involves an omission to pay a certain sum of money which is due or already earned. Mendez, supra. However, if the claim is for failure to perform under the contract and the performance was to take place elsewhere, that rule does not apply. The mere fact that eventually the benefits of the contract will be enjoyed by the plaintiff at his county of residence is not decisive.

Like the Knowles case, supra, this case does not involve a debtor-creditor relationship. It is not a suit on a promise to pay a certain sum of money owed. It is, instead, a suit for breach of contract and for a tort to recover unliquidated damages. The failure to perform and the misfeasance charged in the complaint occurred in Charlotte County.

Accordingly, the proper venue of this suit was either Charlotte or DeSoto County. The choice of venue belonging to the plaintiff, the plaintiff should move the court to transfer the cause to either Charlotte County or DeSoto County within twenty days from the issuance of this opinion. Absent such motion the trial court should transfer the cause to DeSoto County. Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

CROSS and LETTS, JJ., concur.

      . Payments of anticipated profits represents the benefits of the contract referred to in James A. Knowles, Inc. v. Imperial Lumber Company, Inc., 238 So.2d 487 (Fla. 2nd DCA 1970).

      . Id.


text:
    Jos. D. FARISH Jr., Appellant, v. Nancy D. W. WAKEMAN, Appellee.
    No. 77-1988.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Robert M. Montgomery, Jr. of Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellant.
    Wade R. Byrd of Stewart, Vander Hulse, Call & Byrd, Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED upon authority of Wakeman v. Farish, 356 So.2d 1323, Fourth District Court of Appeal Case No. 77-813, Opinion filed April 4, 1978.

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