author: GRIMES, Judge.

text:
    Richard James ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 74-574.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 1975.
    James A. Gardner, Public Defender, Sarasota, and Patrick R. Cunningham, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

The appellant was charged with the possession of phencyclidine. After his motion to suppress was denied, he entered a plea of nolo contendere, reserving the right to appeal the denial of his motion pursuant to Ashby v. State, Fla.1971, 245 So.2d 225.

Detective Dorn stopped a motorcyclist named Smith because he thought his vehicle had neither a tag nor a taillight. As it turned out, the vehicle had both. After a routine radio check proved negative, Dorn allowed Smith to proceed. Shortly thereafter, he received a radio measage advising that Smith was wanted in Michigan on two felony narcotics warrants. Dorn then proceeded to the address he had seen on Smith’s temporary Florida driving permit and arrested him as being “a fugitive from justice.”

While Dorn was making the arrest, appellant, who was Smith’s roommate, returned to the apartment with a third person named Allen Serap. Appellant admitted knowing Smith in Michigan for about six years but denied knowing that Smith was a fugitive. However, Serap said it was common knowledge that Smith was a fugitive and that appellant knew it. At this point, Dorn arrested appellant for “harboring a fugitive.” In the course of a search incident to the arrest, two packets of phencyclidine were found on appellant’s person.

The propriety of the search depends upon the validity of the arrest. There is no crime in Florida known as “harboring a fugitive.” However, one is guilty of being an accessory after the fact if he “maintains or assists” a felon to whom he is not related or gives him “any other aid” with the “intent that he shall avoid or escape detection, arrest, trial or punishment.” Fla.Stat. § 776.03 (1973). The fact that Dorn did not describe the offense with technical accuracy would not be a basis upon which to invalidate the arrest. Therefore, the issue is whether Officer Dorn had probable cause to arrest appellant for being an accessory after the fact.

Even assuming the validity of the Michigan warrants and the reliability of the uncorroborated statement of Serap, the only pertinent information known to Dorn was that appellant was sharing an apartment with a person he knew to be a fugitive from Michigan. This did not provide the probable cause necessary to arrest appellant. As related to the instant case, the crime of accessory after the fact requires that a person give aid to a fugitive with the intent that he should escape detection. Dorn had no evidence whatsoever that appellant was doing anything to assist Smith in hiding. As a matter of fact, while presumably not advertising that he was wanted in Michigan, Smith wasn’t even concealing himself. Officer Dorn testified that the names of both Smith and appellant appeared on a utility bill found in the apartment. The common law crime of misprision of felony does not exist in Florida. Holland v. State, Fla.App.2d, 1974, 302 So.2d 806.

Since Officer Dorn did not have probable cause to arrest appellant for the crime of accessory after the fact, the resulting search was invalid and the motion to suppress should have been granted.

The judgment is reversed and the case is remanded for further proceedings consistent herewith.

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

      . The Michigan warrants were never introduced into evidence at the hearing. Officer Dorn testified that Michigan apparently had decided not to extradite Smith. In view of our holding in this ease, it is unnecessary for us to decide whether under Whitely v. Warden, 1971, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306, proof of the sufficiency of the Michigan warrants was a condition precedent to Dorn’s right to arrest Smith in his apartment and thereby be in a position to arrest and search appellant.


source: Caselaw Access Project

author: MAGER, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. William Hollis RICHARDSON, Appellee.
    No. 74-1757.
    District Court of Appeal of Florida, Fourth District.
    July 31, 1975.

      Abbott M. Herring, State’s Atty., Titus-ville, and C. A. Van Hook, III, Asst. State’s Atty., Sanford, for appellant.
    No appearance for appellee.
   MAGER, Judge.

By interlocutory appeal the state seeks to review an order of the trial court granting defendant’s motion to suppress all evidence “illegally” seized.

The state contends that the trial court’s order of suppression was based upon an erroneous interpretation of this court’s decision in Laiser v. State, Fla.App. 1974, 299 So.2d 39. The state asserts that the trial court held the search warrant to be defective only because of the failure of the warrant to indicate with specificity and particularity the court to which the seized property should be returned, i. e. the circuit court or the county court.

Although the order of suppression (which appears in the appendix to the state’s brief) reflects a determination that the controlled substances seized from defendant’s apartment were “illegally seized” no reason is given for this determination; it is impossible, therefore, for this court to ascertain the underlying basis and grounds for the entry of the order of suppression. No further light is shed on this matter because of the absence of any transcript of testimony which might have supplied us with the trial judge’s reasoning. The state points out, however, that the hearing on defendant’s motion to suppress was not reported and that no witnesses were called. While the absence of a transcript may not necessarily be fatal to appellate review where no testimony is presented and the facts are not in dispute, nonetheless, we are unable to ascertain from the face of the order of suppression the essence or extent of the legal issue presented for appellate review.

Most vexing, is the failure of the public defender to file a brief or other response. As this court observéd in Ramirez v. Ramirez, Fla.App.1975, 309 So.2d 25, 26 (footnote 1):

“. . . Failure to file a brief not only places an undue burden upon the appellate court but, additionally, reflects an omission of the responsibility on the part of the appellee to support the ruling of the trial court. If the trial court’s ruling is not worthy of support then the appel-lee ought to confess error and join with the appellant in seeking a reversal. Cf. Holden v. City of Fort Lauderdale, Fla.App.1973, 286 So.2d 218.”

Inasmuch as the instant case involves state-appointed and state-paid counsel representing an indigent defendant in a criminal case the failure to make an appellate presentation is inexplicable and inexcusable.

Although this court might dispose of this case by the simple expedient of affirming because of an insufficient record, or, alternatively, by accepting the unrefuted representations of the state and resolving the issues on the merits, the current status of the record is such as to indicate that either action might be somewhat precipitous. Therefore, in fairness to the litigants and in furtherance of the efficient disposition of the appellate function the practical solution seems to be to relinquish control of this cause to the trial court, temporarily, for the sole and only purpose of having the court enter an order setting forth therein the grounds upon which it granted the order of suppression. Cf. State v. Bruno, Fla.1958, 104 So.2d 588. Hopefully all of the judicial labor involved in this cause will not be completely wasted if in the future both the state and the public defender will take such steps to insure that hearings involving appealable orders will be preserved either stenographically or by stipulation and if appellees will fully discharge their duties and responsibilities imposed by the appellate rules. Presumably, thereby we might be able to avoid further congesting an already overburdened court system, both trial and appellate.

Remand, with directions.

OWEN and CROSS, JJ., concur.

      . Neither sec. 933.07, F.S., nor the decision in Laiser v. State, supra, require this degree of specificity. A search warrant legally complies with the statutory requirements when it contains a command that the seized property be returned either to the issuing judge or another court having jurisdiction. See State v. Jones, Fla.App.1975, 307 So.2d 456.

      . The order of suppression tends to confirm the representation that no testimony was presented: “ . . . Defendant’s Motion to Suppress having come before the Court this date, and the Court having heard argument of both the State and Counsel for the Defendant, and the Court having otherwise fully been advised in the premises, it is hereby,..."

      . See foootnote 2, infra.

      . If necessary, the parties may resort to a stipulated statement of facts in order that the record adequately reflects what actually, transpired. See Rule 3.6h; see also Jackson v. Granger Lumber Company, Inc., Fla.App.1973, 275 So.2d 555; Moyer v. Moyer, Fla.App.1959, 114 So.2d 638.


author: DOWNEY, ..Judge.

text:
    J. K. DAVIS et al., Appellants, v. Raymond Anthony WATSON and the Travelers Insurance Company, Appellees.
    No. 74-1664.
    District Court of Appeal of Florida, Fourth District.
    July 31, 1975.
    Rehearing Denied Sept. 4, 1975.

      Robert L. Shevin, Atty. Gen., and Thomas M. Beason, Asst. Atty. Gen., Tallahassee, for appellants.
    Larry Klein, of Cone, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellee-Raymond Anthony Watson.
   DOWNEY, ..Judge.

Appellee Watson recovered a judgment against appellants Davis and the Game and Fresh Water Fish Commission, an agency of the State of Florida, arising out of a gunshot wound inflicted upon said appellee by appellant Davis, a wildlife officer of the Game and Fresh Water Fish Commission.

Initially, Watson sued only Davis. However, during the pendency of the suit the Commission, by and through the Attorney General, moved to intervene as a defendant. After an order was entered authorizing intervention appellee Watson filed an amended complaint naming Davis and the Commission as defendants. The Commission answered and affirmatively asserted immunity except to the extent of applicable liability insurance, as provided in § 455.06, F.S.1973. On January 10, 1972, the Commission moved the court to limit its liability to the extent of applicable liability insurance coverage. This motion was denied as being premature. Prior to trial the court determined the Commission was not covered by liability insurance for the incident involved in this case. (Watson has not directed a cross appeal at this determination.) Verdict and judgment were ultimately returned against both appellants.

We have reviewed the record with appellants’ assigned errors in mind and find it free from error except as to the entry of judgment against the Game and Fresh Water Fish Commission. In concluding that judgment should not Have been entered against the Commission, we have given serious consideration to Watson’s contention that the Commission waived its immunity as an agency of the state by intervening in the suit.

Least importantly, we do not believe there was any express or implied waiver of immunity by the Commission. It consistently maintained in the pleadings that its liability was limited to the extent of liability insurance coverage as provided in § 455.06, F.S.1973. More importantly, even if the Commission had purported to waive its immunity as an agency of the state, it was powerless to do so. Article 10, Sec. 13 of the Florida Constitution, West’s F.S.A., provides that the sovereign immunity of the state may be waived by general law. The Supreme Court of Florida has held that the state’s immunity may not be waived by special or local law. State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (1930); Arnold v. Shumpert, Fla.1968, 217 So.2d 116. So it seems that the power to waive the state’s immunity is vested exclusively in the legislature. Suits v. Hillsborough County, 147 Fla. 53, 2 So. 2d 353 (1941). Therefore the intervention by the Commission through the Attorney General did not operate as a waiver of the Commission’s immunity as an agency of the state. Compare Dunn v. Schmid, 239 Minn. 559, 60 N.W.2d 14 (1953); State v. Hall, Mo.1965, 389 S.W.2d 798; Darnall v. State, 79 S.D. 59, 108 N.W.2d 201 (1961); Department of Pub. Safety v. Great S. W. Warehouses, Tex.Civ.App. 1962, 352 S.W.2d 493.

Accordingly, the judgment against the appellant J. K. Davis is affirmed and the judgment against the Game and Fresh Water Fish Commission, an agency of the State of Florida, is reversed.

Affirmed in part; reversed in part.

CROSS and MAGER, JJ., concur.


author: OWEN, Judge.

text:
    MAYFAIR ENGINEERING CO., an Illinois Corp., Appellant, v. E. Paul PARK, Jr., et al., Appellees.
    No. 74-1480.
    District Court of Appeal of Florida, Fourth District.
    July 31, 1975.
    Rehearing Denied Sept. 29, 1975.
    Michael K. Feldman, Nelson Feldman & Davidson, Bay Harbor Islands, for appellant.
    Alan S. Becker, Becker & Poliakoff, Miami Beach, for appellees.
   OWEN, Judge.

In dispute in this appeal is the right of appellant, condominium developer, to assign for consideration the right to the exclusive use of certain common elements of the condominium, to-wit, thirty-five parking spaces, which right appellant claims to have reserved to itself in the Declaration of Condominium. The trial court held that the thirty-five parking spaces were condominium property and, as such, were not subject to assignment by the developer. We reverse.

The Declaration of Condominium, which was filed before the present controversy arose, provided with respect to the condominium parking areas:

“D. The common elements include parking areas for automobiles of unit owners. Parking areas will be available for use pursuant to this Declaration and the Regulations of the Association.”

The terms of use were thereafter spelled out in Article VIII of the Declaration, as follows:

“DESIGNATION AND ASSIGNMENT OF PARKING SPACES BY DEVELOPER
“Each unit owner shall have the right at no charge to the exclusive use of one automobile parking space, the exact location and designation of which shall be assigned and established by Developer at the time of the initial conveyance of title to a unit owner by Developer to such unit owner. The grant of the right to the exclusive use of one automobile parking space shall be evidenced by separate instrument executed by Developer in non-recordable form and delivered to the unit owner at the time such owner acquires fee title to his condominium unit. An executed copy of the instrument granting such shall be maintained by the Association. The Developer shall designate 35 parking spaces which the Developer in its own discretion may assign to unit owners in addition to the exclusive use of the one parking space previously referred to herein and such second parking space shall be considered as a limited common element appurtenant to such condominium unit owner.”

By this language, all parking spaces were declared, in effect, to be limited common elements as that term is defined in Florida’s Condominium Act, Fla.Stat., Ch. 711 (1969, Supp.1970), which the Declaration expressly incorporated by reference. This meant that each unit owner had the exclusive use of one parking space and the potential exclusive use of any number of the remaining thirty-five, but that all unit owners owned an undivided interest in all of the parking spaces.

While under this Declaration it is clear that the developer did not retain ownership of the thirty-five extra parking spaces (except to the extent that such was retained as an undivided interest appurtenant to the unsold condominium units of which the developer was still owner), undoubtedly he retained, by virtue of Article VIII, the right to assign their exclusive use. Moreover, while Article VIII makes no mention of the fact that the developer could receive consideration for this assignment, we think that this is implicit in the reservation clause, given the valuable nature of the property rights involved. The question for our consideration here is whether Florida’s Condominium Act prohibits such an arrangement.

Appellees, unit owners, contend that upon the filing of the Declaration of Condominium, title to the limited or commn elements became vested in the unit owners and that therefore the developer was no longer fee owner and had nothing to assign or convey. While there is no question that ownership of the thirty-five parking spaces passed to the unit owners upon the filing of the Declaration, we find that that ownership was subject to the use restrictions set out in Article VIII of the Declaration of Condominium and that such restrictions are not prohibited by Florida’s Condominium Act. In fact, rather than finding any prohibition in the act against such a reservation, we find that the act anticipates and is amenable to the enforcement of just such a clause. Fla.Stat. § 711.04(2) provides, in part:

“(2) There shall pass with a unit as appurtenances thereto:
“(a) An undivided share in the common elements.
“(b) The exclusive right to use such portion of the common elements as may be provided by the declaration.” (e. s.)
^ 5Í? ^ 5}i

Just as the Declaration assigned exclusive use of one space per unit, which assignment appellees do not question, it assigned exclusive use to the thirty-five spaces, in effect, to the developer who in turn was empowered to reassign this right to unit owners.

Nor do we believe that Fla.Stat. § 711.05 in any way prohibits the developer’s right to reserve and sell the exclusive use of the thirty-five parking spaces. That section provides, in pertinent part:

“(1) The undivided share in the common elements which is appurtenant to a unit shall not be separated therefrom and shall pass with the title to the unit whether or not separately described.
“(2) A share in the common elements appurtenant to a unit cannot be conveyed or encumbered except together with the unit.”

Otherwise stated, this section provides that title to the undivided share in the common elements appurtenant to a unit cannot be conveyed independent of the condominium unit and vice versa. We are not dealing here with a conveyance of title to any common elements, but rather with the assignment of a right to the exclusive use of such property.

Appellees urge that the situation in the case at bar is analogous to that presented in Ackerman v. Spring Lake of Broward, Inc., 260 So.2d 264 (4th DCA Fla.1972) wherein we invalidated individual recreation leases entered into between the developer and unit owners. However, we find that case to be entirely distinguishable in that, there, the developer did not purport to reserve any interest in the common element at issue, but had leased the area absolutely to the condominium for ninety-nine years. Under those facts, we found that while the developer retained fee simple ownership of the recreation area and had a reversionary interest therein, it “had no present possessory interest in the property which it could validly lease to the individual unit owners”. By contrast, in the case at bar, a present possessory interest is precisely what the developer reserved to itself for assignment to unit owners, at its discretion and impliedly for consideration, in Article VIII.

The unit owners knew or should have known of this reservation clause in Article VIII of the Declaration when they purchased their condominium units and therefore were on notice then of their limited right and interest in the thirty-five parking spaces. Enforcement of the Declaration’s terms thus cannot be said to work a hardship upon them. See, Point East Management Corporation v. Point East One Condominium Corporation, Inc., 282 So.2d 628 (Fla.1973).

The judgment is reversed and this cause remanded for further proceedings consistent herewith.

CROSS and DOWNEY, JJ., concur.

      . Ma.Stat. § 711.03(11) (1969) defines limited common elements as follows:
      “Limited common elements means and includes those common elements which are reserved for the use of a certain unit or units to the exclusion of other units.”


author: PER CURIAM.

text:
    Gary T. LEWIS, Appellant, v. Lucille Easley GAUZENS et al., Appellees.
    No. 74-577.
    District Court of Appeal of Florida, Third District.
    Aug. 12, 1975.
    Rehearing Denied Sept. 18, 1975.
    Talburt, Kubicki & Bradley and Robert J. Dickman, Miami, for appellant.
    Horton, Perse & Ginsberg, Hawkesworth & Schmick, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by Gary T. Lewis and State Farm Insurance Company, defendants in the trial court, from a judgment on a jury verdict for members of the Easley family, plaintiffs, in an action arising out of a 1965 automobile accident in which Lewis struck the vehicle driven by Ralph Easley from behind on the Julia Tuttle Causeway. Ralph Easley’s wife Dorothy and their two children, Woody and Lucille, were passengers in the car.

The evidence showed that the accident, which occurred on the downslope of a bridge on the causeway, was precipitated by another collision near the base of the bridge. Lewis testified that his vehicle was following the Easley vehicle, and as his car crested the bridge, he saw below him what appeared to be an emergency situation. He applied his brakes but rear-ended the Easley vehicle which had already stopped. Easley’s wife, Dorothy, and daughter, Lucille, both claimed to be injured in the accident. Lucille’s injuries cleared up within a few weeks, however, Dorothy suffered injuries to her neck, knee and shoulders and sought medical treatment for such injuries.

In 1969, a suit for personal injuries was filed on behalf of Ralph and Dorothy Eas-ley and their two children. The defendants answered the complaint and the parties proceeded with discovery. In 1972, Dorothy Easley died of a ruptured cerebral aneurysm. The plaintiffs amended their complaint substituting Dorothy Easley’s personal claim for injuries with a wrongful death action and a survival action by Ralph Easley as administrator of her estate.

At the trial, the personal injury actions of Ralph and Woody were abandoned. Un-contradicted medical testimony was to the effect that the 1965 accident was not a cause of Dorothy Easley’s death some seven years later. Thus, the claim for wrongful death was stricken at the close of the plaintiff’s case. At the close of all of the evidence, the jury returned a verdict for the plaintiffs awarding damages for Ralph Easley, individually, in the amount of $10,000, for Ralph Easley, as the administrator of the estate of Dorothy Easley in the amount of $35,000 and for Lucille Eas-ley Gauzens in the amount of $100.

On appeal therefrom, the defendants cite several grounds for reversal, including that it was error for the court to permit Easley to testify as to earnings which he allegedly lost as a commission salesman due to the necessity that he spend more time at home with his injured wife. We agree with the appellant that this is an improper measure of damages. The appellees argue that Easley’s testimony as to loss of earnings is clearly and directly relevant and material to his claim for loss of the services of his wife, but they cite no authority to support the trial court’s admission of such evidence, and we are unable to find authority for the proposition either. “A personal injury to a married woman caused by the tort of a third person gives rise to two distinct causes of action. One cause is for the pain and suffering and the other, accruing to her husband, is for his consequential loss of her society and services and for her medical expenses.” Dixon v. Wright, Fla.App.1968, 214 So.2d 787. See also Waller v. First Savings and Trust Co., 1931, 103 Fla. 1025, 138 So. 780. Therefore, the award of $10,000 on the claim of Ralph Easley in his individual capacity must be reduced by $5,000 in order to reflect the amount due according to the proper measure of damages.

The other points raised on appeal do not demonstrate reversible error.

Accordingly, the judgment is affirmed in all respects except that the $10,000 award to Ralph Easley, individually, is reduced to $5,000.

It is so ordered.


text:
    Barbara ZITO, Appellant, v. WASHINGTON FEDERAL SAVINGS & LOAN ASSOCIATION OF MIAMI BEACH, a United States Corporation, Appellee.
    No. 75-307.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Sept. 15, 1975.

      Shalle Stephen Fine and Steven R. Brownstein, Miami, for appellant.
    Pepper, Clements, Hopkins & Weaver, Miami Beach, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal to review an order striking defendants’ affirmative defense with leave to amend.

Plaintiff, Washington Federal Savings and Loan Association of Miami Beach, ap-pellee, filed a complaint to foreclose mortgage and named as defendants, Joseph and Barbara Zito. Defendants answered and alleged in their answer the following affirmative defense:

“AFFIRMATIVE DEFENSE
“1) The Plaintiff, having advanced the note, the Defendant affirmatively states that the note was not in default and the Plaintiff had ample funds of the Defendant’s to apply to the note.”
* * * * * *

Subsequently, plaintiff filed a motion for summary judgment and after a hearing, the trial judge entered the appealed order finding that the motion of plaintiff was premature in that defendants’ affirmative defense, to which plaintiff had not responded, was not sufficiently definite in its terms for the plaintiff to file a response. Thereupon, the judge ordered that (1) the defendants shall have until February 24, 1975 in which to file an amended affirmative defense; (2) plaintiff shall have until March 3, 1975 to file a response thereto; and (3) the hearing on plaintiff’s motion for summary judgment be deferred pending the filing of the above pleadings.

Appellants argue that the court erred in determining that the defendants’ affirmative defense was not sufficiently definite in its terms.

First, that portion of the affirmative defense alleging that the note was not in default does not constitute an affirmative defense, but is merely a denial. See 25 Fla.Jur. Pleadings § 24 (1959) and cases cited therein.

We then considered the affirmative defense, as alleged by the appellants, that “the Plaintiff had ample funds of the Defendants to apply to the note.”

As in plaintiff’s statement of claim, the requirement of certainty will be insisted upon in the pleading of a defense; and the certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence. See Citizens National Bank of Orlando v. Youngblood, Fla.App.1974, 296 So.2d 92; Walker v. Walker, Fla.App.1971, 254 So.2d 832; 25 Fla.Jur. Pleadings § 23 (1959) and 61 Am.Jur.2d Pleading § 136 (1972).

The affirmative defense pled by the defendant-appellants fails to meet the requisite degree of certainty and, therefore, we conclude that the trial judge did not err in entering the appealed order.

Affirmed.


author: McNULTY, Chief Judge.

text:
    STATE of Florida ex rel. Robert SHEVIN, Attorney General, State of Florida ex rel. Walter Condon, and Walter Condon, Appellant, v. CITY OF SANIBEL, a Municipal Corporation, Appellee.
    No. 75-701.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 1975.
    Robert L. Shevin, Atty. Gen., Jerry E. Oxner, Chief Trial Counsel, and Clarence Holmes, Asst. Atty. Gen., Tallahassee, for appellant State of Florida ex rel. Robert Shevin.
    John R. Asbell, Naples, for appellant Walter Condon.
    No appearance by appellee.
   ON MOTION TO QUASH

McNULTY, Chief Judge.

One Walter Condon, the owner of lands located in the City of Sanibel and the true relator herein, requested the Attorney General for permission to prosecute on behalf of the Attorney General this quo warranto action challenging the validity of the City. Such permission was granted with the caveat that: “It is understood that [the Attorney General’s] office must retain control in this case. To that end, please keep [the Attorney General] advised of any action you take and furnish copies ‘of any pleadings filed herein.” The action was then filed in the name of the State of Florida on the nominal relation of the Attorney General.

After hearing on the order to show cause why a writ of quo warranto ought not issue, and the response of the respondent-city thereto, the trial court denied the petition for writ of quo warranto finding, in effect, that the City of Sanibel was legally formed. The cause was dismissed with prejudice and Condon caused this appeal to be filed. The Attorney General has moved to quash for the reason that he has withdrawn from Condon his permission to further prosecute the case in his name and in the name of the State of Florida. We grant the motion to quash the appeal.

Prior to the institution of this action, § 165.30, F.S.1973, which authorized an owner of land within the territorial boundary of a city to institute quo warranto proceedings challenging the validity of the city in the name of the state, upon refusal of the Attorney General to do so, was repealed. The petition herein seeks, therefore, a common law writ of quo warranto; and at common law the overwhelming weight of authority was that the Attorney General has absolute control of such a quo warran-to proceeding, the rationale being that the state, not the relator, is the real party in interest. This “absolute control” governs appeals as well. Cases to the contrary involve particular statutes.

Accordingly, the Attorney General’s motion to quash and dismiss this appeal should be, and it is hereby, granted.

BOARDMAN and GRIMES, JJ., concur.

      . Chapter 74-192, Laws of Florida 1974.

      . Cf. State ex rel. Attorney General v. Bryan (1905), 50 Fla. 293, 39 So. 929. See also State by Information of Hancock ex rel. Banks v. Elwell (1960), 156 Me. 193, 163 A.2d 342.

      . See Robinson v. Jones (1873), 14 Fla. 256.

      . See, e. g., People v. Wood (1952), 411 Ill. 514, 104 N.E.2d 800; People ex rel. Buchanan v. Mulberry Grove E. S. District (1945), 390 Ill. 341, 61 N.E.2d 256.

      . See, e. g., State ex rel. Handlan v. Wilkie Land Company (1942), 349 Mo. 666, 162 S.W.2d 846; State ex rel. Black v. Taylor (1907), 208 Mo. 442, 106 S.W. 1023; State, by Hagglund, ex rel. Security Savings and Trust Company v. School Dist. No. 9 of Tillamook County (1934), 148 Or. 273, 31 P.2d 751.


author: BOYER, Chief Judge.

text:
    SERVAMERICA, INC., and Stand ’N Snack of America, Inc., et al., Appellants, v. Michael B. ROLFE, Appellee.
    No. X-52.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1975.
    Rehearing Denied Sept. 4, 1975.

      William L. Durden, and Timothy A. Burleigh, of Kent, Sears, Durden & Kent, Jacksonville, for appellants.
    Lawrence C. Rolfe, of Gelman & Rolfe, P. A., Jacksonville, for appellee.
   BOYER, Chief Judge.

Appellants, defendants in the trial court, appeal from a final judgment rendered pursuant to a jury verdict in favor of the appellee, plaintiff in the trial court, for compensatory damages in the sum of $3,000.

While working as an assistant manager at a Winn-Dixie Store, appellee was induced to abandon that position in order to go to work for appellant with the promise that he would ultimately be placed in a supervisory position. Appellee gave up his job with Winn-Dixie and became employed by appellant, but was never promoted to a supervisory position. The lagging economy of the country necessitated institution by appellant of an austerity program whereupon appellee was discharged. He filed suit alleging breach of an oral contract of employment.

Appellant urges that under Florida law an action may not be maintained for termination of a contract of employment without some agreement as to the length of time that the employment is to continue, citing Wynne v. Ludman Corporation, Sup.Ct.Fla. 1955, 79 So.2d 690, and that a contract for employment for an indefinite period of time is terminable at the will of either party, citing Knudsen v. Green, Sup.Ct.Fla. 1934, 156 So. 240. It further urges that inasmuch as there is nothing in the record of this cause to prove that the employment of appellee by appellant was other than for an indefinite period, terminable at the will of either party, the alleged cause of action for wrongful termination of the oral employment contract cannot be sustained.

Appellee concedes the correctness of the principles of law urged by appellant but contends that his action is not for the breach of an oral contract of employment for an indefinite period of time (which he concedes is terminable at will) but 'he urges instead that the gravamen of -his complaint is that appellant contracted to employ him (appellee) in a supervisory capacity, to wit: in a specific position, which was never done.

The facts of this case are remarkably simliar to those in Knudsen v. Green, supra. There the plaintiff, while an employee of Standard Oil Company entitled to various fringe benefits was induced by the defendant to give up that position in reliance upon the defendant's oral agreement to hire the plaintiff as the master of the defendant’s houseboat (a specific position). The plaintiff gave up his position with Standard Oil and at the direction of the defendant traveled to Maimi where he remained subject to the defendant’s orders for several months when he was ultimately discharged by the defendant without ever becoming employed as master of defendant’s boat, the position for which he was hired. Under those facts the Supreme Court of Florida held:

“Our conclusion is that under the contract as pleaded the defendant Green did not bind himself to employ the plaintiff, nor did the plaintiff obligate himself to remain in defendant’s service for any definite period of time beyond the first month of hiring, and that the hiring, after the expiration of the first month, being indefinite as to its duration, could be lawfully terminated at the will of either party upon the giving of notice of dismissal. See Odom v. Bush, 125 Ga. 184, 53 S.E. 1013; Derry v. Board of Education of City of East Saginaw, 102 Mich. 631, 61 N.W. 61. An agreement to serve and be served at so much per month, with no stipulation as to the term of the services, is determinable at the end of any month at the pleasure of either party to the contract, because a contract for employment fixing an amount to be paid at stated intervals, but with no time limit for its enduring, must be construed as a contract terminable at the end of any month by either party at pleasure. Clark v. Ryan, 95 Ala. 406, 11 So. 22; Cleveland v. Towle, 213 Ala. 129, 106 So. 60.
“It follows, therefore, that if the contract that plaintiff made with the defendant in its essence contemplated a legal right on defendant’s part to terminate it at any time after the first month at the master’s pleasure, the master can be held for no special damages because of his exercise of that right simply because the servant gave up his previous employment in order to accept the new contract with defendant. * * * ”
******
“We hold, therefore, in the present case that under a declaration alleging that a master has entered into a contract of employment with a servant for an indefinite period of time at a monthly salary, that upon a breach of such contract the servant’s measure of damages is the worth of the bargain upon which the action is based; not the loss of advantages derived from another contract between the servant and a previous employer, which contract the servant terminated as an incident to entering into the contract alleged to have been broken.” (156 So. 242 & 243)

In the case sub judiee appellee seeks to distinguish Knudsen v. Green, supra, claiming that since he was never placed in a supervisory position, the position for which he was 'hired, he has a cause of action for that breach although he concedes that had he been so employed in such position appellant could have immediately discharged him without liability. In so arguing appellee overlooks that such were the exact facts in the Knudsen case. There the plaintiff was hired for a specific job, the master of a vessel. Here the plaintiff was hired for a specific job, a supervisory position. In the Knudsen case the plaintiff was placed on the payroll of the defendant but never placed in the actual position for which he was hired. In the case sub judiee the plaintiff became the employee of the defendant but was never placed in the supervisory position for which he was hired. In the Knudsen case the plaintiff claimed the identical damages as those here claimed by the appellee. The Supreme Court there held such was not recoverable. Neither are they sub judiee. Further, the record before us does not reveal the compensation to have been paid by appellant to appellee had he become employed in a supervisory position, therefore even were appellee not barred from recovery by the rules of law announced in the Knudsen case we would nevertheless be here required to reverse because of lack of proven damages for the breach.

Having determined that the defendant (appellant here) was entitled to a judgment as a matter of law, we find it unnecessary to consider the other points raised on this appeal.

Reversed and remanded with directions to vacate the judgment for the plaintiff entered pursuant to the jury verdict and to enter judgment for the defendant.

It is so ordered.

McCORD and MILLS, JJ., concur.


author: PER CURIAM. HOBSON, Acting Chief Judge

text:
    Carl Louis COPPOLA, Appellant, v. STATE of Florida, Appellee.
    No. 75-57.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1975.
    Bruce M. Lyons of Di Guilian, Spellacy, Berstein, Lyons & Sanders, Ft. Lauderdale, and Archie M. Odom of Farr, Farr, Hay-mans, Moseley & Odom, Punta Gorda, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was arrested at an airfield in rural Collier County while loading sacks of marijuana into a truck. He was tried and convicted for violation of the Florida Drug Abuse Law and sentenced to five years. His point on appeal directed to a pretrial protective order is without merit. The speedy trial question is more difficult.

Appellant was arrested on February 23, 1973. An information was filed on March 6, 1973. On March 16, 1973, he entered a plea of not guilty and the cause was set for trial July 23, 1973. Appellant then filed a motion for continuance in which he specifically waived the right to speedy trial. After this motion was granted, the record reflects that the next activity in the case was a notice served on November 18, 1974, setting a trial date of December 2, 1974. On November 25, 1974, appellant filed his motion for discharge for failure to have a speedy trial, which was denied on the same date. Trial was held on December 4, 1974, which resulted in his conviction and sentence.

In Negron v. State, Fla.1974, 306 So.2d 104, the Supreme Court held that a four and one-half month delay in going to trial following a continuance obtained by the state violated the accused’s right to a speedy trial. Some of the language of this opinion is susceptible to the interpretation that once a continuance has been granted at the request of the defendant, the provisions of Rule 3.191(d)(3) RCrP, nevertheless, require him to be brought to trial within 90 days. However, as we read this rule, it comes into play after a motion for discharge has been filed. See State ex rel. Butler v. Cullen, Fla.1971, 253 So.2d 861. In the case sub judice, since the trial occurred within a few days within the filing of the motion for discharge, the 90-day provision of Rule 3.191(d)(3) RCrP was inapplicable. Yet, we wholeheartedly agree that even though the accused has filed for a continuance, which is granted, he is still entitled to a speedy trial under Section 16, Article I, Declaration of Rights of the Florida Constitution, F.S.A. If he is not accorded a speedy trial under Section 16 he should be discharged.

The leading case on the constitutional right to a speedy trial is Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 2d 101. This case involved a claim of the denial of the right to speedy trial under the U. S. Constitution in a case arising from a state which had no speedy trial rule. Speaking for the court, Justice Powell stated:

“We, therefore, reject both of the inflexible approaches — the fixed-time period because it goes further than the Constitution requires; the demand-waiver rule because it is insensitive to a right which we have deemed fundamental. The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.
“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.”

The court observed that all four factors were related and must be considered together with such other circumstances as may be relevant to determine whether there was a deprivation of the right to speedy trial. The court concluded that even though there was a five year delay between Barker’s arrest and trial, he was not deprived of a speedy trial because he suffered only minimal prejudice due to the delay and because he had not made any serious efforts to bring the case to trial.

While Florida is at liberty to interpret its own constitution more strictly, our Supreme Court in State ex rel. Butler v. Cullen, supra, adopted a position strikingly similar to Barker v. Wingo when it said:

“It appears on the face of the petition that petitioners requested a continuance so that they would have additional time within which to prepare their defense. When the continuance was granted, the time limitations in the rule were no longer applicable and the Court had the right and authority to set the case for trial within a reasonable time.
“In other words, the purpose of the Speedy Trial rule is to implement the practice and procedure by which a defendant may seek and be guaranteed his speedy trial. When the time limitations set forth in the rule were waived by petitioners seeking a continuance, then it became incumbent upon the trial court to set a trial date far enough in advance to allow the petitioners adequate time for preparation of their defenses, but, also, guaranteeing to the petitioners their constitutional right to a speedy trial. The facts and circumstances of each case may differ.
“When the continuance was granted and the time limitations set forth in the rule were no longer applicable, the trial judge was nevertheless required to grant petitioners a speedy trial. In the absence of the time limitations specified in the Speedy Trial rule, the right to a speedy trial is necessarily relative. It is consistent with delays and the question of whether a trial date affords petitioners a speedy trial must be determined in the light of the circumstances of the particular- case as a matter of judicial discretion. The mere lapse of time before trial is not the only factor to be considered under such circumstances. Any unreasonable delay arising from the negligence of the prosecution without fault or consent by the accused violates the guaranty of a speedy trial.”

The record in the instant case reflects nothing more than appellant’s motion for discharge and a minute book entry indicating denial of the motion. In view of the sixteen month delay and a silent record, the case is hereby remanded with directions for the trial court to hold an ev-identiary hearing following the principles of Barker v. Wingo, supra, to determine whether appellant was denied his constitutional right to a speedy trial. Should the judge conclude that the appellant’s speedy trial rights were violated, he should vacate the judgment and sentence. A copy of the order should be sent to this court, and the state would have a right to file a new appeal from that order. If the trial judge should determine that appellant’s speedy trial rights were not violated, he should enter an order setting forth his findings in support of this conclusion. This order, together with the record of the hearing, should then be transmitted to this court for review of its legal sufficiency.

Remanded with directions.

BOARDMAN and GRIMES, JJ., concur.

HOBSON, A. C. J., dissents with opinion.

HOBSON, Acting Chief Judge

(dissenting)-

I think the majority opinion is in direct conflict with our Supreme Court opinions in Negron v. State and Butler v. State, supra. In Negron, I interpret the opinion to hold that even though a continuance has been granted at the request of the defendant, the provisions of Rule 3.191(d)(3), RCrP, nevertheless required him to be brought to trial within 90 days.

In my opinion the Butler case, supra, requires the discharge of the appellant in this cause. The majority opinion recognizes that even though the accused has filed for a continuance, which is granted, he is still entitled to a speedy trial under Section 16, Article I, Declaration of Rights. To me, a delay of sixteen months from the date the continuance was granted until the State noticed the appellant for trial is unreasonable and is a denial of a speedy trial.

Our Speedy Trial Rule 3.191(a)(1) requires that

“every person charged with a crime by indictment or information shall without demand be brought to trial * * * within 180 days if the crime charged be a felony, capital or noncapital, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be ' forever discharged from the crime; . . .”

The appellant, herein, was available for trial for a period of sixteen months from the time he moved for a continuance until he was notified by the State of a trial date. Under the pronouncements in Negron and Butler, supra, this was an unreasonable delay of a speedy trial and the appellant is entitled to be discharged.

      . RCrP 3.191(d)(3): “Continuances; Effect on Motion. If trial of the accused does not commence within the periods of time „ established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that (i) a time extension has been ordered as provided in § (d)(2), or (ii) the failure to hold trial is due to the unexcused actions or unexcused decisions of the accused, or of a codefendant in the same trial. If a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interests of justice; provided, however, trial shall be scheduled and commence within 90 days.”


author: HOBSON, Judge.

text:
    CARL B. SMITH & SONS, INC., Appellant, v. Elisabeth Henderson TINKLER, Appellee.
    No. 74-333.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 1975.
    Rehearing Denied Sept. 4, 1975.
    M. W. Graybill and Ted R. Manry, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Gerald W. Nelson and Charles E. Berg-mann of Yado, Keel, Nelson & Casper, Tampa, for appellee.
   HOBSON, Judge.

Appellant appeals a final judgment entered against it and in favor of appellee.

The first point on appeal involves the question of relation back of the claim contained in the final amended complaint to the “cause of action” stated in the original complaint. The original complaint was filed within the time allowed under the Statute of Limitations. Several amended complaints were subsequently filed which also were within the Statute of Limitations. The final amended complaint which was the claim upon which the case went to trial was filed after the Statute of Limitations had run.

We concur with the trial court that under Keel v. Brown, Fla.App.2d 1964, 162 So.2d 321; Brown v. Wood, Fla.App.2d 1967, 202 So.2d 125; and Handley v. Anclote Manor Foundation, Fla.App.2d 1971, 253 So.2d 501, the final amended complaint in the instant cause relates back to the original complaint and the trial court was eminently correct in so ruling.

The remaining two points on appeal attack the sufficiency of the evidence to sustain the jury’s verdict. We have carefully reviewed the record on appeal and have determined, as the trial judge did, that there is competent, substantial evidence to support the jury’s verdict.

Affirmed.

McNULTY, C. J., and BOARDMAN, J., concur.


text:
    Hattie MAJORANA, Appellant, v. T. Joseph CONSTANTINE, as guardian of Arthur R. Long, incompetent, Appellee.
    No. 74-1185.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1975.
    John T. Blakely, of Johnson, Blakely & Pope, Clearwater, for appellant.
    Jerry C. Cobb, of Wightman, Rowe, Weidemeyer, Jones & Turnbull, Clear-water, for appellee.
   GRIMES, Judge.

Arthur R. Long made certain gifts to his housekeeper. After Mr. Long was declared incompetent, his guardian brought suit to set the gifts aside. The court found that Mr. Long and the defendant had occupied a confidential relationship and that the defendant had failed to rebut the presumption of undue influence thereby created. The court imposed a constructive trust upon property which had been purchased by the defendant with the proceeds of the gifts. The defendant does not contest the finding of a confidential relationship but contends that the court misconstrued the burden placed upon her by reason of the presumption of undue influence.

In Rich v. Hallman, 1932, 106 Fla. 348, 143 So. 292, the Supreme Court said:

“ . . . [Wjhere a mutual confidential relation exists and a gift is made to one in whom the confidence is reposed, it is prima facie void because of such relation. The law presumes, in other words, when such relation exists, that the gift was obtained by undue influence or other improper means. When persons occupy positions of trust and confidence as did the parties to this cause, they are held to a strict measure of candor in their dealings, and any transactions between them predicated on a grossly inadequate consideration will be viewed as suspicious. Equity raises a presumption against the validity of such dealings, and imposes on the vendee or the donee the burden of showing the good faith and voluntary conduct of the donor or the vendor as the case may be. 12 R.C.L. 972, and cases cited.”

This principle was reaffirmed in may subsequent cases. E. g., Adams v. Saunders, 1939, 139 Fla. 730, 191 So. 312; Lesperance v. Lesperance, Fla.App.3d, 1970, 233 So.2d 859. However, in the case of In re Estate of Carpenter, Fla.1971, 253 So.2d 697, our Supreme Court held that where a beneficiary of a will was shown to have been in a confidential relationship with the testator and actively participated in the execution of the will, the burden placed upon the beneficiary was only that of coming forward with the reasonable explanation for his active role in the decedent’s affairs rather than that of disproving the undue influence. The court held that, as in the case of other presumptions, the burden of proof remained with the party upon whom it rested in the first place.

While Carpenter was a will contest and the case sub judice involved a suit to set aside inter vivos gifts, the same principles would seem to apply. Our sister court so held in Pate v. Mellen, Fla.App.1st, 1972, 275 So.2d 562.

The judge below was obviously following pre-Carpenter law when he stated in the final judgment:

“The Court finds the testimony and evidence presented by the Plaintiff establishes by clear and convincing evidence that a confidential relationship existed between Arthur R. Long and Hattie Majorana, the Defendant. The Court further finds that the Defendant failed to rebut the presumption that the transfers made to the Defendant were void because of such relation. That is, the Defendant-donee failed to establish that the transfers were made in good faith and voluntary conduct of the donor.”

Since the case was decided upon an erroneous conception of the burden raised by the presumption of undue influence, it is necessary for the case to be remanded for a determination according to the principles of Carpenter. In so doing, we do not purport to pass upon whether the defendant met the burden of coming forward with the evidence necessary to dispel the presumption.

Reversed and remanded.

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


text:
    William BOWMAN, Appellant, v. Suzanne BOWMAN, Appellee.
    No. 75-109.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.

      Kenneth J. Duckworth, Kravitz, Dudley & Duckworth, Hialeah, for appellant.
    No appearance for appellee.
   MAGER, Judge.

Upon review and consideration of the brief of the appellant and the record herein we are of the opinion that no reversible error has been demonstrated and the judgment appealed from should be affirmed. We cannot help but note, however, the fact that the appellee has not favored this court with a brief as is, we perceive to be, his duty. Brown v. Fine, Fla.App.1958, 102 So.2d 830. As this court observed in Ramirez v. Ramirez, Fla.App.1975, 309 So.2d 25 (footnote 1):

“. . . Failure to file a brief not only places an undue burden upon the appellate court but, additionally, reflects an omission of the responsibility on the part of the appellee to support the ruling of the trial court. If the trial court’s ruling is not worthy of support then the appel-lee ought to confess error and join with the appellant in seeking a reversal. Cf. Holden v. City of Fort Lauderdale, Fla.App.1973, 286 So.2d 218.”

Judicial recognition of the duty and responsibility to file an appellee’s brief is not of recent origin. As early as 1897, the Supreme Court of Florida in Chamberlain v. Lesley, 39 Fla. 452, 22 So. 736, 737, made the following pertinent observations which we feel hear repetition:

“This is one of the many cases in this court wherein we are left to make an independent investigation for authorities in support of the judgment of the court below without the aid of a brief or argument on the part of the appellee. The delicate compliment so often paid to our ability and industry by these failures on the part of counsel for appellees to brief cases in this court we cannot fail to appreciate, nevertheless we suggest to litigants and counsel that, owing to the present congested state of our docket, and our earnest endeavors to rapidly dispose of the mass of cases now before us, we are willing to renounce these implied compliments, for a time at least, in order that we may have the benefit of counsel’s investigations, to aid us in performing these responsible duties. Under our rules a party appellant is in many ways punished for his failure to brief his case, and the rules require an appellee to file briefs with us, though no penalty is named for his failure to do so. We think a moment’s reflection on the part of members of the profession will convince them that their duty to this court, their clients, and the state requires that in all cases here represented by them they should brief the questions involved on appeal, not only because it may aid to secure a just and correct decision of these questions, but because this court is thereby enabled to dispose of its business more rapidly than it otherwise could do. In the accomplishment of the task now before us, of clearing the docket, we ask the co-operation of the profession, and the most substantial assistance they can give us is in the manner suggested.”

In furtherance of the object and purposes to he served thereby we are hopeful that the foregoing comments will be accepted in the respectful spirit in which they are intended.

Affirmed.

CROSS and OWEN, JJ., concur.


text:
    Robert R. FRANK et al., Appellants, v. Lee RUWITCH, Appellee. INDUSTRIAL-GUARANTY BANCORP., a Florida Corporation, Appellant, v. Lee RUWITCH, Appellee.
    Nos. 74-1152, 74-1161.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 18, 1975.
    Frank, Strelkow & Gay, for Robert R. Frank, Miami Beach, Richard M. Gale, Miami, for Industrial-Guaranty Bancorp., appellants.
    Heller & Kaplan and Lynn Richard Mat-taway, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendants in the trial court appeal a final judgment entered pursuant to a jury verdict awarding plaintiff $161,086.56 in an action to collect a finder’s fee.

Lee Ruwitch filed a complaint to recover a finder’s fee and alleged that he entered into an oral contract with the defendants, appellants herein, whereby he would receive a 4% finder’s fee if he were to advise the defendants of any Florida banks with deposits in excess of $15,000,000 whose shareholders owned at least 51% of the stock and would sell to the defendants. Ruwitch further alleged that he put the defendants in touch with the Citizens Bank and Trust Company of Sarasota and subsequently, defendant Industrial Guaranty Bancorp, a corporation formed by the other defendants, purchased approximately 85% of the stock in the Sarasota bank for $3,136,080. Thereupon, Ruwitch prayed for 4% of the purchase price or $125,443.20 as his fee. The defendants answered the complaint with a general denial of the allegations. The cause eventually proceeded to a jury trial at which the evidence presented on behalf of the plaintiff tended to show: (1) the individual defendants and others planned. the formation of a bank holding company; (2) one Frank Proctor promised Ruwitch a finder’s fee of 4'% for his help in locating Florida banks for the group to purchase; this promise was reaffirmed by defendant Roberts; (3) plaintiff was the publisher of the Miami Review and, therefore, was thought likely to have contacts helpful to the group; (4) Ruwitch in fact did put the defendants in touch with the subject Sarasota bank; and (5) a purchase of approximately 85% of the stock therein was consummated by the defendants. At the conclusion of the trial, the case was submitted to the jury which found all four defendants liable and awarded Ruwitch a total of $161,086.56 (his fee plus interest thereon). The trial judge entered judgment in accordance therewith and after defendants’ motion for new trial was denied, this appeal ensued.

Appellants first urge as reversible error the admission into evidence of negotiations between the parties including unsigned option agreements made in an effort to compromise and settle Ruwitch’s finder’s fee against the appellants.

The record with respect thereto demonstrates that the testimony of Larry Hoffman, Ruwitch’s attorney, was not objected to. Further, the introduction of the unsigned option agreements were objected to on the sole ground that said documents were nugatory in that they were not signed. Generally an appellate court must confine its review of objections to evidence to those grounds actually raised in the trial court. Lineberger v. Domino Canning Company, Inc., Fla.1953, 68 So.2d 357; Nat Harrison Associates, Inc. v. Byrd, Fla.App.1971, 256 So.2d 50. Accordingly, the objection on the grounds that the unsigned option agreements were settlement or compromise offers and, therefore, inadmissible, cannot be raised for the first time on appeal and we need not review it.

Even assuming arguendo that these grounds for objection were raised in the trial court, we cannot agree with appellants that said evidence was inadmissible for the two fold reason that (1) the option agreements illustrate that the admission of liability upon which Ruwitch’s claim was based was unconditional, and (2) these agreements were drawn up before this cause of action was instituted. See Mutual Benefit Health & Accident Association v. Bunting, 133 Fla. 646, 183 So. 321 (1938) and Allstate Insurance Company v. Winnemore, 413 F.2d 858 (5th Cir. 1969).

Appellants also contend that the trial court erred in refusing to direct a verdict for them in that there was an insufficiency of evidence to permit the case to go to the jury. We cannot agree.

Appellants admit the evidence was conflicting and there being competent substantial evidence contained in the record to sustain the jury’s verdict, we will not disturb said verdict on appeal. See 2 Fla.Jur. Appeals § 345 (1963) and cases cited therein.

As another contention on appeal, appellants alleged the trial judge erred in giving the following verdict special interrogatories :

“1. Do you find that there was an agreement to pay Lee Ruwitch a fee of 4 percent of the ultimate stock purchase price for information regarding the availability of stock in the Citizens Bank and Trust Company of Sarsota? YES _NO_
“(If your answer is no; then you are to answer no further questions.)
“2. Do you find that the defendants, or either or any of them, are liable to the plaintiff under said agreement?
“YES _ NO_
“(If your answer is no, then you will answer no further questions.)
“3. If your answer to question number 2 was in the affirmative, place a check mark opposite the name of the defendant or defendants you find liable.
“ROBERT R. FRANK _
“JOHN W. ROBERTS, JR_
“JACK H. STEIN -
INDUSTRIAL-GUARANTY BAN-CORP. _
“4. What do you find to be the total compensation, in dollars, which is owed to Lee Ruwitch?
“$_”
jfc ‡ ‡ >)< :}«

The appellants allege reversible error because the trial judge precluded the jurors from answering a special interrogatory as to the existence vel non of an agency relationship between the persons making the finder’s fee contract with Ruwitch and the appellants as requested by them.

Despite the fact that the trial judge refused to give this requested special interrogatory, we find the jury was instructed thoroughly by the trial judge on the issue of agency. Thus, we conclude the trial judge did not abuse his discretion in renduring the special interrogatories. See 76 Am.Jur.2d Trial §§ 1177, 1180 (1975) and Cf. Beckwith v. Bailey, 119 Fla. 316, 161 So. 576 (1935). The real question herein appears to be which of the defendant-appellants should be liable rather than the question of liability itself, and the special interrogatories, properly elicited from the jury its answer thereto. In the final analysis, it is undisputed that all the appellants reaped the benefits of the information furnished by Ruwitch as they subsequently purchased 85% of the bank stock, and it would seem it was an almost impossible task for them to deny the existence of their agency relationship with Proctor and Roberts.

After a scrutiny of appellants’ remaining points on appeal, we have determined that no reversible error has been made to appear.

For the reasons stated, the judgment appealed is affirmed.

Affirmed.


author: SCHEB, Judge.

text:
    Daryl Lynn SAMUELS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1433.
    District Court of Appeal of Florida, Second District.
    July 18, 1975.
    Rehearings Denied Aug. 25, 1975.

      James A. Gardner, Public Defender, Sarasota, Harold H. Moore and Richard J. Cole, II, Asst. Public Defenders, Braden-ton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant pled nolo contendere to a charge of possession of phencyclidine, a controlled substance; reserving, however, the right to appeal the trial court’s denial of his motion to suppress. The trial court withheld adjudication of guilt and placed appellant on probation for two years.

Appellant alleges the court erred in denying his motion to suppress by finding that he had consented to the search of his automobile from which the contraband was seized.

From the testimony on the motion it appears that at approximately 11:00 p. m. on November 8, 1974, Patrolman Burnett of the Lake Wales Police Department received information from an informant whom he later learned had given other officers reliable information in the past. The informant stated that at a certain recreation center on Highway 60 East, he had seen some THC in an orange Roadrunner automobile driven by a fair young man with glasses. Burnett stated the informant did not indicate how much earlier that evening he had seen the contraband nor could the informant state if the drugs were still in the car. Patrolman Burnett radioed this information to Detective Helms, who in turn relayed it to Lt. Busbee. When finally given the name of the informer, Lt. Busbee recognized the name as that of a reliable informant.

At about midnight, Patrolman Burnett, who was in a patrol car with another officer, saw a Roadrunner automobile matching the informant’s description which appeared to be coming from the place mentioned by the informant. The driver also fit the description furnished the officer. He stopped the car, although it had been exceeding the speed limit by only 5 miles per hour. Patrolman Burnett acknowledged he stopped the car because of the information about contraband and not for the offense of speeding. A conversation ensued between Patrolman Burnett and the appellant, who was driving the Roadrunner. About that time another patrol car arrived with Detective Helms, Lt. Busbee, and another officer. Lt. Busbee had a conversation with appellant, searched the car, and in the glove compartment found a small plastic bag of pills which as it turned out were phencyclidine. As to the critical issue of consent, the testimony varied as to the conversation between the police officers and the appellant.

Patrolman Burnett testified: The appellant originally refused to consent to a search of his car. Then he told appellant that the police had a right to search the car under the “stop and frisk” law. Appellant replied that a warrant was necessary. Then the other police arrived. Lt. Busbee advised appellant of his Miranda rights and then asked appellant three times whether he could search the car, and each time the appellant said “yes.” Patrolman Burnett further testified that appellant asked Lt. Busbee what he would do if he did not consent and Busbee replied he would search anyway. During this conversation, Lt. Busbee also told appellant that he had the right to refuse consent.

Lt. Busbee testified: He told appellant that he had the right to deny permission to search. The appellant said he knew that, but three times gave permission to search. While Lt. Busbee searched the trunk, appellant asked what the police would have done if he had refused permission to search. Lt. Busbee discounted this as joking or small talk.

Appellant testified: He denied permission to Patrolman Burnett and requested a warrant. Patrolman Burnett replied that no warrant was necessary. Then Lt. Bus-bee arrived and asked, only once, for permission to search. Appellant replied, “What if I were to refuse?” Lt. Busbee replied, “We’d search — probably search it anyway.” At that point appellant allowed the search.

Where the question of consent to the search of a vehicle arises, the trial court must follow the standard of requiring the evidence to be clear and convincing before it can find consent. Sagonias v. State, Fla.1956, 89 So.2d 252. While ordinarily an appellate court should not substitute its judgment for that of the trial court where there is evidence to support the trial court’s determination, when the question of consent is raised on appeal, it is essential for this court to determine that the evidence was clear and convincing. This role of the appellate court was recently emphasized in Bailey v. State, Fla.1975, 319 So.2d 22.

This court in Talavera v. State, Fla.App.2d 1966, 186 So.2d 811 at 814, stated:

A distinction is recognized . . . between submission to the apparent authority of an officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather, for an occupant to waive his rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search, being cognizant of his rights in the premises.

Although recognizing the evidence presented on the issue of consent was “borderline”, the trial court denied the motion to suppress holding that “. . . Mr. Samuels . . . was in complete control of knowing what he was doing and that he wasn’t the slightest bit coerced.”

From the totality of the circumstances, we find the evidence is not clear and convincing that appellant consented to a warrantless search. It was undisputed that the appellant initially denied the one officer any permission to search and even contested that officer’s claim of legal authority to search under the “stop and frisk” law. While there is conflicting testimony as to subsequent developments, strong circumstances appear that any subsequent consent may have merely been a submission to the lawful authority after additional police officers were on the scene. Then too, the state’s case is not bolstered by the evidence that the police told the appellant they probably would search even without his consent.

Another aspect of the case is of vital significance: Whether there was probable cause, i. e., whether the officers who seized the contraband from the appellant’s vehicle did so on a belief reasonably arising out of circumstances known to them that such vehicle contained contraband. Although there is evidence to the effect that this was the case, “probable cause” is a matter for initial determination by the trial court.

Fla.Stat. § 933.19 adopts the rule formulated in Carroll v. U. S., 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, which permits a warrantless search of a motor vehicle on the open highway where there is probable cause to believe the vehicle contains contraband. Of course, where, as here, probable cause is based on a tip by an informant, it is also necessary that the court make factual findings with respect to the reliability of informant arid the credibility of his information. Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. U. S., 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and State v. Lee, Fla.App.2d 1975, 313 So.2d 441.

Accordingly, the case is reversed as to the trial court’s finding that the appellant consented to the search and seizure, but remanded for determination as to whether there was probable cause for search of the appellant’s vehicle and a seizure of contraband.

Reversed and remanded.

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


author: WALDEN, Chief Judge.

text:
    TOWN OF PALM BEACH, a Florida Municipal Corporation, et al., Appellants, v. STATE ex rel. Milton F. STEINHARDT, Appellee.
    No. 75-437.
    District Court of Appeal of Florida, Fourth District.
    July 31, 1975.
    Rehearing Denied Sept. 29, 1975.

      H. David Faust, Burns, Middleton, Farrell & Faust, Palm Beach, for appellants.
    Michael B. Davis, Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for appellee.
   WALDEN, Chief Judge.

This is an appeal by the Town of Palm Beach from an order of mandamus entered by the trial court directing the Town to issue a paving permit to appellee, Mr. Stein-hardt. We reverse that order on the grounds that there was no clear legal right on the part of appellee to be issued that permit.

The Palm Beach Code § 33-1 defines basement as follows:

“Basement. A story, the floor of which is two feet or more underground and having at least one-half of its height above the average level of adjoining ground. Basement shall not be considered a story with regard to height regulations hereafter mentioned if the same does not exceed eight feet in height above the average level of the adjoining ground, and if designed for any adapted to and used for the purpose of auto storage, furnace and other utility purposes. Exterior walls of basements of a building shall be set back from all property lines as required for the building exteri- or wall line of the story next above.”

Mr. Steinhardt has built a multi-family dwelling with a basement, (ostensibly not a story according to this definition), five stories and a penthouse. The problem arises because the basement floor is flush with the parking lot area, in violation of the quoted code section. As such, the basement is a story, making the building six stories with a penthouse — an impermissible structure under the Town Code § 33-7:

“(B) Building height limit:
* * * * * *
“(2) For buildings other than single family dwellings and accessory buildings the height shall not exceed fifty feet, except as provided in section 33-11, subsection (L); provided however, that one penthouse story not to exceed twelve feet in height may be added to such buildings beyond this height if all parts of such penthouse story are kept within the limits of a prism having an angle of forty-five degrees projected from all building exterior wall lines the measurement of said angle beginning at the top of the building exterior wall height of fifty feet. In no event, however, shall such building contain more than five stories and a penthouse . . . .” (Emphasis supplied.)

The building plans approved by the Town specifically provided:

“Parking lot elevation to be 24" above basement floor (slope up).”

Mr. Steinhardt has argued that the term “underground” does not equate with the phrase “average level of adjoining ground,” and urges that the term underground should be interpreted together with the Town Code proscription for measuring the height of buildings, § 33-11:

“. . . determining height
* * * * * *
“The height of all buildings shall be measured from the grade established by the town for the crown of the public street or road at its highest elevation abutting the property, or in the event such elevation is below Plus 7% feet U. S.C. & G.S. datum, then it shall be measured from Plus feet U.S.C. & G.S. datum. . . . ”

Mr. Steinhardt urges that “underground,” in the basement definition, means below the point from which height elevation is measured. We find, however, that the basement definition clause and the height measurement clause are mutually exclusive. For example, the requirements necessary for a basement to be a non-story would be thwarted if the height clause datum were used for a beginning measurement of “underground.” Using Mr. Stein-hardt’s thesis, should the ground upon which the building were to be built be above the highest elevation covered in the height clause, perhaps 10 feet above it, the basement would have to be 12 feet underground to conform to the 2 foot underground requirement of the basement definition. If the property being developed were 10 feet below the measurable elevation in the height clause the basement could be on stilts and still ostensibly conform to the 2 foot underground requirement.

We hold the two clauses in the Town Code are independent, to be construed individually, and practicably so. For a basement to qualify as a non-story under the definition of “basement” in the Town Code, the basement floor should be 2 feet underground, 2 feet under the ground on which the building is constructed, whereas for a building to conform to height limitations, reference should be made to the Building Height Provision of the Town Code.

We are aware that for Mr. Steinhardt to comply with the Town Code and the provisions of the plans which he successfully submitted to the Town for approval, he must elevate his parking lot, which has been cleared and leveled, 24 additional inches. If Mr. Steinhardt should be somehow aggrieved or placed under hardship by this requirement of which he necessarily had knowledge, then his remedy is to be found in resort to administrative relief, such avenues being available in the Town of Palm Beach, and not heretofore traveled by Mr. Steinhardt.

We hold that the issuance of the peremptory writ of mandamus was error in that its issuance was based upon an erroneous interpretation of the Town’s Ordinance and because Mr. Steinhardt did not establish a clear legal right to the issuance of a paving permit and the writ commanding same. State ex rel. Lacedonia v. Harvey, 68 So.2d 817 (Fla.1953); Rhoades v. Sweet, 276 So.2d 221 (3d DCA Fla.1973).

We reverse and remand with respectful instructions to quash the peremptory writ of mandamus.

Reversed and remanded.

CROSS and DOWNEY, JJ., concur.

      . Mr. Steinhardt has argued that the new modification in the Town Code of the basement definition supports his interpretation of “underground” as being measured by the crown of the road, or Plus 7!4 feet U.S.C. & G.S. datum as noted in the height clause. The modification reads:

        “Basement: A story where the floor of which is two feet or more underground and having not more than one-half of its height . . . above the average level of adjoining grounds,” and appellee urges it would result in a four foot story unless “underground” were measured in relation to the height clause. Nonetheless, the modification would result in a four foot story should the adjoining ground be level with the height clause datum, and it appears, therefore, that the clause is an unfortunate one, but not one mandating a reading of the two code sections — re basement definition and height measurements — together.


author: McCORD, Judge.

text:
    YAMAHA INTERNATIONAL CORPORATION, Petitioner, v. Robert EHRMAN et al., Respondents.
    No. Y-424.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1975.
    James E. Tribble, Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner.
    Coleman R. Rosenfield, Fort Lauderdale, and Brumer, Moss, Cohen & Rodgers, Miami, for respondents.
   ON MOTION TO DISMISS

McCORD, Judge.

This is a motion to dismiss a petition for review of a final administrative order of the Director of the Division of Motor Vehicles. Respondent points out that Rule 4.-1, Florida Appellate Rules, states that “all appellate review of the rulings of any commission or board shall be by certiorari as provided by the Florida Appellate Rules.” Respondent further correctly states that there is no provision in the Florida Appellate Rules for a petition for judicial review of a final administrative order.

Although respondent’s references to the Florida Appellate Rules are correct, Article V, § 4(b)(2) of the Constitution of Florida provides:

“District courts of appeal shall have the power of direct review of administrative action, as prescribed by general Iww.” (emphasis supplied)

The now repealed Administrative Procedure Act provided for such administrative orders to be “reviewable by certiorari by the district courts of appeal within the time and manner prescribed by the Florida appellate rules” (§ 120.31(1), Florida Statutes, 1973). The new Administrative Procedure Act, which became effective January 1, 1975, provides in pertinent part as follows (§ 120.68, 1974 Supplement to the Florida Statutes 1973):

“(1) A party who is adversely affected by final agency action is entitled to judicial review . . . ”
“(2) Except in matters for which judicial review by the supreme court is provided by law, all proceedings for review shall be instituted by filing a petition in the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida appellate rules.” (emphasis supplied)

The foregoing statute dropped the provision of the previous statute that review of administrative action be by certiorari. It substituted the above-quoted underlined verbiage by which proceedings for review are now instituted by filing a petition for such review in the District Court of Appeal and set forth specific requirements for the record and briefs. It further specified the extent and limitations of judicial review. (Though we do not here determine the question of whether or not the court is bound by such extent and limitations.)

The Supreme Court has not yet adopted appellate rules governing petitions for review of administrative orders and until such rules are adopted, it is our ruling that the appropriate rules for such review are those governing certiorari [Rule 4.5(c), Florida Appellate Rules], but as amplified by the requirements of § 120.68, 1974 Supplement to Florida Statutes 1973. Although the petition in this cause is properly styled, it does not contain a concise statement of the cause and the reasons relied upon for reversal of the order sought to be reviewed as is required by the aforesaid rule. It is noted that although petitioner, upon filing its petition did not at the same time file the record and its brief as is required by the aforesaid rule, the record and brief have now been filed, though not complete under the requirements of said § 120.68.

The motion to dismiss the petition for review is denied but petitioner is directed to file with this court within twenty (20) days from the date hereof (1) an amendment to the petition, (2) an amended brief and (3) a supplemental record complying with the above requirements. Subsequent filings by respondents shall be in accordance with the time limits set forth in the aforesaid Rule 4.5(c).

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


text:
    Dale L. McINTIRE and Roberta L. McIntire, Appellants, v. GREEN-TREE COMMUNITIES, INC., a Foreign Corporation, Appellee.
    No. 74-1080.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 1975.

      George W. Thomas, Jr., of Jacobson & Thomas, Sarasota, for appellants.
    No appearance for appellee.
   GRIMES, Judge.

This is an appeal from an order dismissing an amended complaint without leave to further amend.

The contract attached to the amended complaint reflects that appellants agreed to purchase a house in appellee’s subdivision to be built by appellee. The contract which was on appellee’s printed form contained the following pertinent provision:

“MUTUAL COVENANTS AND AGREEMENTS
% sf: * * * *
12. The Seller, subject to the provisions of this contract, agrees to use its best effort to deliver the completed residence mentioned herein on or before approximately November 15, 1973. However, the Seller cannot and will not be responsible for any damages or inconveniences caused to Buyer for failure to complete residence mentioned herein by such date, regardless of the reason for such delay.” (emphasis added)

There was a provision printed in boldface type which stated that the contract contained the entire agreement of the parties and that no representation or statement not specifically set forth therein would be binding upon either party.

There was also typed in on the face of the contract the following words:

“4. Additional $200.00 due on or before December 15, 1972.
5. Balance of the deposit — $500.00— due on or before February 15, 1973.
6. Balance of the cash difference $1,595.00 due on or before June 15, 1973.
7. Balance of Purchase Price by Mortgage in the approx, amount of $22,700.00.
8. House to be completed by approx. November 15, 1973.”

According to count I of the amended complaint, the appellee had agreed to have the house completed by no later than November 15, 1973, and provision number 8 was typed into the contract to give this assurance. Thereafter, the appellants obtained a mortgage commitment for an interest rate of 8% provided the mortgage was executed on or before December 7, 1973. The house was not completed and delivered to appellants until March 12, 1974. As a consequence, the appellants claimed damages resulting from the fact that they were required to obtain a 'mortgage at an interest rate of 8)4% and had to rent an apartment from November 15, 1973, to March 12,1974.

After realleging pertinent allegations of count I, the following additional allegations were included in count II supporting appellants’ claim for the same damages on a different theory:

“6. That at the time of execution of the contract the Defendant had a secret intent not to perform its part of the agreement entered into between the parties in the time specified, but fraudulently represented that they would perform as an inducement to the Plaintiffs to enter into said agreement.
“7. That due to a design and plan of construction, known to the Defendant at the time of signing the contract, the Defendant used the lot upon which the residence of the Plaintiffs was to be constructed, for a roadway to carry materials and supplies and to move equipment from the storage facilities and construction yard of the Defendant to other homes being constructed on other lots, and as a result thereof failed to complete the residence for the Plaintiffs within the time specified in said contract.”

The dismissal of both counts was apparently predicated upon the provisions of printed paragraph 12 which provided that there would be no damages for delay in the event the construction was not timely completed.

With reference to count I, appellants argue that the several typed provisions reflected an intent to require delivery by November IS. Appellants then cite the recognized rule of construction that a typed portion of a contract will control where it is inconsistent with the printed portion. ' However, appellants overlook the fact that there really is no inconsistency between the typed and printed portions of this contract. Both of them provide that the house shall be completed “by approximately November IS, 1973.” Therefore, this contention cannot be sustained.

On the other hand, we think appellants have stated a cause of action under count II. The provisions of paragraph 12 should not permit appellee to be relieved of responsibility should it be proven that: appel-lee was guilty of fraud. This provision is similar in many respects to the “no damages for delay” clause often found in construction contracts. Many contracts involving public construction include a provision which states the public body will not be responsible for damages in the event of delay which may result in extra expense to the contractor. These clauses have generally been held to be valid. However, they are normally ineffective where the delay is caused by the active interference, concealment or fraud of the party seeking the benefit of the provision. While it has been held that unreasonable delay is not excused by a “no damages for delay” clause, the weight of authority favors the view that the inquiry into the reasonableness of the delay was what the clause was intended to avoid and that the unreasonableness of a delay alone does not avoid the operation of the clause.

In Southern Gulf Utilities, Inc. v. Boca Ciega Sanitary District, Fla.App.2d, 1972, 238 So.2d 458, this court held that a “no damages for delay” clause was valid but stated that it was not to be read literally so as to preclude every conceivable claim against the party it was designed to protect. In that case, the complaint was held to state a cause of action for damages caused by the knowing delay of a public authority which transcended mere lethargy or bungling. In the case sub judice, the appellants allege that the circumstances which caused the delay were brought about by appellee and were even foreseen but concealed by appellee when the contract was made. For purposes of pleading, this appears to bring the case within the exception to the “no damages for delay” clause recognized in Southern Gulf Utilities, Inc. v. Boca Ciega Sanitary District, supra.

The judgment is reversed, and the case is remanded for further proceedings consistent herewith.

McNULTY, C. J., and BOARDMAN, J., concur.

      . Allegheny Mutual Casualty Company v. State, Fla.App.2d, 1965, 176 So.2d 362.

      . See 10 A.L.R.2d 801.

      . E. g., Cunningham Brothers, Inc. v. City of Waterloo, 1962, 254 Iowa 659, 117 N.W.2d 46; Western Engineers, Inc. v. State Road Commission, 1968, 20 Utah 2d 294, 437 P.2d 216.

      . Ippolito-Lutz, Inc. v. Cohoes Housing Authority, N.Y. Sup.Ct.1964, 22 A.D.2d 990, 254 N.Y.S.2d 783.

      . E. g., Yonkers Contracting Co v. Maine Turnpike Authority, S.D.Maine, 1962, 208 F.Supp. 517; Psaty & Fuhrman v. Housing Authority, 1949, 76 R.I. 87, 68 A.2d 32.


author: BOARDMAN, Judge.

text:
    TRANSAMERICA INSURANCE COMPANY, Petitioner, v. Robert MAZE and Shelby Mutual Insurance Company, Respondents.
    No. 75-754.
    District Court of Appeal of Florida, Second District.
    July 30, 1975.
    Kenneth L. Ryskamp, Bolles, Goodwin, Ryskamp & Welcher, Miami, for petitioner.
    James C. Delesie, Sr., Macfarlane, Ferguson, Allison & Kelly, Tampa, for respondents.
   BOARDMAN, Judge.

This cause is before the court on Petition for Writ of Certiorari seeking review of an interlocutory order entered by the trial court compelling petitioner and its co-defendants to produce statements of witnesses they intend to use at trial.

The said order was entered upon a Request to Produce filed by Robert Maze and Shelby Mutual Insurance Co., respondents, who were also co-defendants below. The request was based on Rule 1.350 RCP and petitioner was requested to produce “any and all statements taken from any and all persons which may be used at trial.” Petitioner timely objected to said request assigning the following grounds:

1. That there is no showing that said information is not equally available to defendants, Maze and Shelby Mutual.
2. That defendant Transamerica Insurance Company had not determined which of said statements will be used at trial.

The trial court after hearing argument entered an order on all pending motions, the pertinent part of which follows:

“. . .6. The objection of . and Transamerica Insurance Company to the request filed by Robert Maze and Shelby Mutual Insurance Company of Shelby, Ohio, be and the same is hereby overruled in that said production shall be granted as to statements of witnesses said defendants intend to use at trial ..."

Rule 1.350(a), supra, provides for the production of documents that constitute or contain matters within the scope of Rule 1.280(b) and that are in the possession, custody or control of the party to whom the request is directed.

Rule 1.280(b)(2), RCP, 30 FSA, provides, inter alia, that a party may obtain statements

. . prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including his attorney, consultant, surety, indemnitor, insurer or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. . . .” (emphasis supplied)

The request to produce did not assign any reasons for the statements but merely sought them; while the rqle clearly places the burden on the movants, respondents here, to show a need for the sought after statements in the preparation of their case. Further, the movants must demonstrate they are unable, without undue hardship, to obtain the equivalent of the statements by any other means. See Raulerson v. Finney, Fla.App.3rd 1973, 280 So.2d 484. Likewise, a review of a variety of federal cases dealing with the identical federal rule (Rule 26) reveals the federal courts, in deciding whether to allow discovery of materials, will examine the motion to produce or other appropriate pleading in order to ascertain the extent of the movant’s own diligence in preparing his case for trial. As stated in Florida Civil Practice Before Trial, Third Edition, Section 16.8 at page 396:

“. . . RCP 1.280(b)(2) should not be allowed to benefit lawyers who simply leave it to the opposition to investigate and prepare a case for trial.”

Respondents in the instant case did not make a showing of why the statements are even needed or not obtainable by their own diligence. Absent the prescribed showing as provided in 1.280(b)(2), supra, the attorney-client privilege and/or work product doctrine should remain intact and undisturbed. The respondents are not entitled to unlimited disclosure as a matter of right. See, Hickman v. Taylor, 1947, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451.

Lastly, we point out and emphasize that we are not holding that the statements sought to be obtained here would under any and all circumstances be protected from discovery under the work product theory.

The Petition for Writ of Certiorari is granted quashing paragraph 6 of the trial court’s order of May 12, 1975.

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


text:
    James JACKSON a/k/a James Watkins, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-961 to 74-964.
    District Court of Appeal of Florida, Second District.
    July 30, 1975.
    Rehearing Denied Aug. 25, 1975.
    James A. Gardner, Public Defender, Sarasota, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

The appellant, through his Public Defender, filed an “Anders Brief” (see Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493) concluding there are no meritorious grounds of appeal. We have carefully reviewed the records of the trial court and we agree the judgment of the trial court should be affirmed, however, some minor sentencing irregularities must be corrected.

Appellant was charged by four separate informations with violations on December 13, 1973, of the Comprehensive Drug Abuse and Health Act, Fla.Stat. § 893.13. Originally he pled not guilty, then revoked such pleas and pled nolo contendere to each of the charges. After requesting the required presentence report (RCrP 3.710) the sentencing judge, on July 31, 1974, imposed the following sentences:

Case Number Charge Sentence .
74-766 Sale of heroin 6 months-three years
74-767 Possession of heroin 6 months-three years
74-768 Sale of marijuana 6 months-three years
74-769 Possession of marijuana 6 months-three years

The judgments were rendered in open court and in writing (RCrP 3.670) and the sentencing hearing was conducted (RCrP 3.720) and record thereof made and transcribed (RCrP 3.721).

The sentencing judge ordered the sentences in 74 — 766 and 74-767 (heroin offenses) would merge; that the sentences in Case Nos. 74 — 768 and 74 — 769 (marijuana offenses) would merge; and that the sentences would run concurrently (RCrP 3.-722). As required by Fla.Stat. § 921.-161(1), the defendant was allowed credit for 158 days he was in the county jail.

The appellant was a decorated veteran who stated he became involved in drugs while he served in the United States Army in Vietnam. We think the court wisely utilized the indeterminate sentence method authorized by Fla.Stat. § 921.18, with a recommendation for drug rehabilitation treatment while the appellant is confined to the Division of Corrections.

Certain corrections must be made in the sentences adjudged, albeit they are more in form than substance. Since the convictions occurred on separate counts involving sale and possession of drugs, these were facets of the same transaction. Therefore, only one sentence on the charge of “sale” should be imposed for the heroin offenses and one sentence should be imposed for the marijuana offenses. Yost v. State, Fla.App.3d 1971, 243 So.2d 469; Caivano v. State, Fla.App.2d 1973, 276 So.2d 245. Moreover, since the sentence in 74 — 769 refers to “possession of heroin” when, in fact, the information charged “possession of marijuana”, this sentence must be corrected.

Accordingly, the judgment in each of the cases is affirmed, however, we remand for resentencing consistent with this opinion. It is not necessary for the appellant to appear in court at the time of resentencing.

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

      . Since we have recently remanded several cases because of procedural irregularities in the sentencing process, we have noted pertinent references to some of the sentencing procedures.

      . The trial judge attempted to accomplish this by imposing two sentences and then merging them, however, technically this would not comply with the “same transaction rule.”