author: ALMON, Justice.

text:
    NATIONAL DISTILLERS AND CHEMICAL CORPORATION, a corporation v. AMERICAN LAUBSCHER CORPORATION, a corporation.
    SC 1482.
    Supreme Court of Alabama.
    Oct. 1, 1976.
    As Corrected On Denial of Rehearing Nov. 19, 1976.

      Robert McD. Smith and Joseph W. Mathews, Jr., Birmingham, for appellant.
    Shores & McKerall, Foley, and Johnston & Shores, Birmingham, for appellee.
   ALMON, Justice.

Appellant, National Distillers and Chemical Corporation, appeals from a judgment in favor of appellee, American Laubscher Corporation, in the amount of $78,911.47 plus interest.

Appellee was a trade creditor of Brad’s Machine Products, Inc., of Gadsden, Alabama, when Brad’s failed financially in December of 1970. Brad’s operated a machine shop in Gadsden. The principal product manufactured by Brad’s was an M-125 booster fuse produced under direct contract with the United States Government. The body of the fuse was machined from brass rods. Brad’s bought the brass rods from the appellant. Appellee sold certain Swiss screw machine parts to Brad’s from 1967 until December, 1970. This suit arose from Brad’s inability to pay appellee for these parts.

Appellee filed suit asserting multiple claims against appellant (which itself was Brad’s creditor). After numerous amendments, the case was submitted to the jury on a claim asserting that appellant and Brad’s had fraudulently conspired to induce appellee to sell goods to Brad’s at a time when Brad’s was insolvent or in failing circumstances and unable to meet its obligations within a reasonable time after they became due. The claim further asserts that the co-conspirators did not disclose the fact of Brad's insolvency or failing circumstances. The jury found in favor of appellee and assessed damages of $78,911.47 with interest from January 1, 1971, for a total of $99,231.17.

Appellant alleges first that the evidence failed to establish a prima facie case of conspiracy and that the jury verdict was contrary to the weight of the evidence. We disagree.

As appellant acknowledges in brief, a conspiracy may be established by circumstantial evidence. As this court stated in Barber v. Stephenson, 260 Ala. 151, 156, 69 So.2d 251, 255 (1954):

“. . . Concededly there was no positive evidence to that effect, but a conspiracy need not alone be established by that character of evidence. Indeed, seldom is such the case. It is only by looking to the conduct of the alleged conspirators during the progress of the conspiracy and the end result achieved that usually such a fact is established. And to that end it is proper to consider evidence extending over a considerable period, both before and after the date of the alleged combination and even after its termination, just so that the proof has a tendency to establish the ultimate fact.”

Roy Compton was Brad’s plant comptroller when Brad arrived in Gadsden. Leon Rudd, an internal auditor for National Distillers, came to Gadsden to provide cash control assistance to Brad’s.

We think the following testimony was pertinent on the question of conspiracy:

“A. [Roy Compton]: We [Rudd and I] both worked together. We- didn’t tell them diametrically opposed — we discussed what our problems were and how we were working them out, and we basically told each creditor the same thing.
“Q. That’s right, you and Mr. Rudd basically told each creditor the same thing?
“A. Certainly.
“Q. What?
“A. That we were getting things worked out and that National was helping us and that we were going to have money on some new contracts coming in and that things were looking better and that we were going to be able to get our bills paid; that is all you could tell them.
“Q. Did you tell them about holding checks?
“A. No, sir.
“Q. You didn’t ever hear Mr. Rudd tell them about holding checks?
“A. Well, no.” (Emphasis added.)
At another point Compton testified:
“A. Well, we continued to make M— 125 fuses for the government, and we — as I mentioned earlier in testimony, Mr. Rudd was a big help to me in staving off creditors and trying to reassure them and working with them and paying a little here and a little there, and trying to work out problems; and it was just a day to day battle.”

The record was replete with financial data which tended to show Brad’s failing financial condition. There was also ample evidence showing appellant’s complicity in the operation of Brad’s. This was a proper case for a jury.

Appellant claims the fraud counts that were submitted to the jury were barred by the Statute of Limitations, Tit. 7, § 26, Code of Alabama 1940, Recompiled 1958. Appellee submits that the claims asserted in the amended complaint arose out of the same conduct, transaction or occurrence set forth or attempted to be set forth in the original complaint and therefore related back under the provision of Rule 15(c) A.R.C.P.

Rule 15(c), in pertinent part, reads as follows:

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading

A review of the pleading is necessary to understand appellant’s contention.

The original complaint filed in April, 1971, alleged in Count 1 that during the years 1969 and 1970 the appellant was engaged in a joint enterprise with Brad’s in the operation of Brad’s business and that the appellant owed the appellee for work and labor done. Count 2 was a common count and Count 3 alleged fraud in that the appellant misrepresented to appellee that Brad’s was solvent and its credit was good.

Count 4 was added by amendment in March, 1972, alleging an instrumentality theory.

In October and November, 1972, appellee struck the first four counts and added Counts 5, 6, 7 and 8. The theory of the amended complaint so far as we are here concerned was that Brad’s was so organized and controlled by the employees of appellant as to make Brad’s merely an instrumentality and alter ego of appellant.

In February, 1973, appellee added Counts 9, 10, 11 and 12. The theory of these counts was that appellant conspired with Brad’s to conceal from the United States Government the true financial condition of Brad’s and that by virtue of that conspiracy to conceal the plaintiff was induced to extend further credit to Brad’s.

In December, 1974, appellee amended the complaint by striking Counts 5, 6 and 8 and adding Counts 13, 14, 15 and 16. These counts were similar to Counts 9 through 12 except they added allegations that the appellant and Brad’s conspired to wrongfully conceal from the appellee and the government the true financial condition of Brad’s.

During trial, at the close of appellee’s evidence, the court allowed appellee to amend the complaint by adding Counts 17 and 18 over appellant’s objection. The essence of these two counts is that the defendant and Brad’s fraudulently conspired to induce the plaintiff to sell goods on credit to Brad’s at a time when Brad’s was insolvent or in failing circumstances.

While several counts remained in the complaint, it was the theory of recovery asserted in Counts 17 and 18 that formed the basis of the trial court’s charge to the jury.

Specifically, appellant argues that the amended fraud counts were barred by the Statute of Limitations because they departed from the facts and duty set forth in the original complaint and appellee failed to allege and prove late discovery. Tit. 7, § 42, Code of Alabama 1940, Recompiled 1958.

For this argument to be valid the amended counts must have arisen out of conduct, transactions or occurrences other than those attempted to be set forth in the original complaint. We do not think this was the case.

It is clear that Brad’s was indebted to appellee and that appellant, through its agent, was involved in the everyday management of Brad’s. For the appellee to recover that debt from the appellant, it was necessary to frame a complaint setting forth liability on the part of the appellant. We are of the opinion that the various amendments to the complaint was an effort on the part of the appellee to allege a theory which would allow recovery. In other words, the various amendments were merely changes in theory rather than declarations upon different conduct. Our conclusion is that the amendments related back to the time of the original filing of the complaint.

“. . . Rule 15(c) is based on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all the notice that statutes of limitation are intended to afford. Thus, if the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment .which merely makes more specific what has already been alleged, such as by specifying particular acts of negligence under a general allegation of negligence, or remedies a defective pleading, will relate back even though the statute of limitations has run in the interim. Similarly, while it is still the rule that an amendment which states an entirely new claim for relief based on different facts will not relate back, if the pleading sufficiently indicates the transaction or occurrence on which the claim or defense is based, amendments correcting specific factual details such as time and place, as well as other items, will relate back.
“The . . . [A.R.C.P.] have broadened the meaning of the concept of ‘cause of action,’ shifting the emphasis from a theory of law as to the cause of action, to the specified conduct of the defendant upon which the plaintiff relies to enforce his claim. And an amendment which changes only the legal theory of the action, or adds another claim arising out of the same transaction or occurrence, will relate back. Thus, an amendment will relate back which changes the theory of recovery as to the type of negligence claimed, or adds additional grounds of negligence, changes the theory of the action from one based on contract to one sounding in tort, changes a demand for equitable relief to one for legal relief, states a different fulfillment of conditions precedent, or increases the amount of damages claimed.” 3 Moore, Federal Practice, ¶ 15.15[3], pp. 1025-1031 (1968 ed.).

Furthermore, the fact that a significant amount of time transpired between the original complaint and the various amendments does not in itself affect our conclusion. In Green v. Wolf Corporation, 50 F.R.D. 220 (N.Y.1970), the amendments were offered almost four years after the initial complaint. The only explanation given by the attorney was that the laws involved were complex and that the new theory advanced simply did not occur to him previously.

“[Njeither long delay nor the fact that a proposed amendment is motivated by an afterthought of counsel as to the best theory upon which to proceed, by themselves, suffice as reasons for denying leave to amend.” Id. at 223.

On the other hand, delay as a predicate for a finding of bad faith would be sufficient reason to deny leave to amend. Id.

Appellant next maintains that the trial court improperly allowed appellee to amend the complaint during trial, after a pre-trial order had been issued, and at the close of appellee’s ease. Appellant argues that at least it was entitled to a continuance.

Rule 15(b) of the A.R.C.P. provides in pertinent part as follows:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in the maintaining of his action or defense upon the merits.”

In discussing Rule 15 this court in Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975), stated as follows:

“. . . We simply state here that if Rule 15 is to be of any benefit to the bench, bar, and the public, the trial judges must be given discretion to allow or refuse amendments. However, we state that amendments are to be freely allowed and refusal of an amendment must be based on a valid ground. We state also that Rule 15 must be liberally construed by the trial judges. But, that liberality does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced.”

In the present case we do not believe that the appellant was unduly prejudiced by the allowance of the amendments at the close of appellee’s case. Counts 9 through 12 had previously charged appellant with fraud on the government which injured appellee and counts 13 through 16 had previously charged appellant with fraud on the government and the appellee, with the two joined in the conjunctive. Basically, all the last amendments (Counts 17 and 18) did was to charge fraud on the appellant, alone and apart from fraud on the government. Since appellant was already defending double charges of fraud on the appellee and fraud on the government, it worked no prejudice to add two counts charging fraud on the appellee alone.

As to whether the entry of a pretrial order should prevent further amendment of pleadings, we discussed this subject in Huskey v. W. B. Goodwyn Company, Inc., 295 Ala. 1, 321 So.2d 645, 648 (1975):

“We believe that Alabama Rule 16 must be read in conjunction with Rule 15 and Rule 1; therefore, liberal allowance of amendment when justice so requires must take precedence over strict adherence to the pre-trial order in Alabama practice. . . . ”

Although the amendments in Huskey were offered before the beginning of trial, we are convinced that the same criteria should be followed where amendments are offered to conform the pleadings to the evidence if, as here, there is no unfair surprise.

Appellant alleges the trial court improperly charged the jury as to the circumstances raising a duty of disclosure of financial condition by the buyer of goods on credit.

Appellee’s requested jury charge number four which was given read as follows:

“No formal agreement is necessary to constitute an unlawful conspiracy. An unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators. The essential combination or conspiracy may be found in a course of dealings or other circumstances as well as in an exchange of words. If you are reasonably satisfied from the evidence that Brad’s Machine Products, Inc., and National Distillers and Chemical Corporation were engaged in a course of dealings with the purpose of inducing suppliers to Brad’s to extend credit to Brad’s at a time when Brad’s was insolvent or in failing circumstances, then National Distillers would be guilty of participation in a conspiracy to defraud. If you are further reasonably satisfied from the evidence that the plaintiff in this case, American Laubscher Corporation, was damaged as a proximate consequence of such a conspiracy, then National Distillers would be liable to the plaintiff for such damage.” (Emphasis added.)

The rule which the appellee attempted to set forth in its requested charge is found in Maxwell v. Brown Shoe Co., 114 Ala. 304, 308, 21 So. 1009, 1010 (1897):

“. . . First, the purchaser must have been insolvent or in failing circumstances at the time of the sale; second, he must then have had either a design not to pay for the property, or have had no reasonable expectation of being able to pay for it; and, third, he must have made some fraudulent representation either as to his financial condition or in respect of his intent not to pay, or of his expectation as to paying or he must have fraudulently concealed his condition or his intent not to pay, or his want of expectation that he would be able to pay.” (Emphasis added.)

Appellant’s argument that Charge 4 omitted any reference to the phrase, “or have had no reasonable expectation of being able to pay for it,” is correct.

However, in another part of the oral charge the court charged as follows:

“A buyer of goods on credit who has no reasonable expectation of paying for them and who is insolvent or in failing circumstances and anyone acting in concert with the buyer in inducing the sale of those goods has a duty to disclose the buyer’s financial condition to the seller of the goods.”

We consider for a credit purchaser to come within the rule in Maxwell, supra, he must (1) be either insolvent or in failing circumstances and (2) have a design not to pay or have no reasonable expectation of being able to pay and (3) fraudulently misrepresent or conceal the elements in 1 and 2 above.

Thus, we consider the infirmity of Charge 4 to have been supplied later in the oral charge. Rule 51, A.R.C.P., Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975).

Appellant claims error because the trial court gave to the jury two different definitions of insolvency. One defined insolvency as the inability of assets to cover liabilities and the second as the inability to pay debts as they become due in the ordinary course of business. Clearly the two are not the same. However, we fail to see any prejudicial error as the evidence showed Brad’s to be insolvent under both definitions.

Appellant further argues that the trial court improperly read to the jury statutes inapplicable to the issues. Appellant contends that the action was framed under Tit. 7, § 109, Code of Alabama 1940, Recompiled 1958 (dealing with suppression of truth) and that it was error to instruct the jury on § 108, Code, supra (dealing with misrepresentations) and § 110, Code, supra (dealing with deceit). The authorities have noted much confusion in the relationship of these sections. Clayton v. Glasscock, 221 Ala. 3, 127 So. 538 (1930); Cartwright v. Braly, 218 Ala. 49, 117 So. 477 (1928).

We see no need at this time to explore the intricacies of these statutes as we regard any error in relation to reading them to the jury, under the circumstances of this ease, to be harmless.

The judgment is affirmed.

AFFIRMED.

All the Justices concur except SHORES, J., who recuses herself.

      . Tit. 7, § 239, Code of Alabama 1940, Recompiled 1958, is sufficiently broad to allow the amendments prior to July 3, 1973, the effective date of the Rules of Civil Procedure. There being no determination that the new rules would work a hardship, all further amendments were controlled by the new rules. Rule 86, ARCP.


source: Caselaw Access Project

author: MADDOX, Justice. JONES, Justice

license: Public Domain

text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, a corporation v. Terry GUTHRIE.
    SC 1451, SC 1452.
    Supreme Court of Alabama.
    Oct. 25, 1976.

      Lybrand, Sides & Hamner, Anniston, for appellant.
    Merrill, Porch, Doster & Dillon, Anniston, for appellee.
   MADDOX, Justice.

The primary issue presented by this appeal is whether the trial court erred in refusing to permit defensive pleadings to be filed during the trial of the case and after the entry of the pre-trial order. In this particular case, we find no error.

Terry Guthrie, a minor, and his father, Wilson Guthrie, filed separate actions naming Alabama Farm Bureau Mutual Casualty Insurance Company, in which they sought recovery under the uninsured motorist provisions of three insurance policies issued to the father by Farm Bureau.

The facts stated briefly are that on May 4, 1973, Terry Guthrie was riding with five other passengers in a car owned and operated by Robert McCrelles, Jr., when the car was forced off the highway to avoid a collision with another vehicle that had cut sharply into McCrelles’ lane. As the McCrelles automobile left the road, it turned over one or more times. Terry Guthrie suffered permanent injury to his right hand. The evidence reflects that the driver of the other car was an uninsured motorist.

The jury awarded Terry Guthrie a judgment in the amount of $32,550 and his father obtained a judgment in the amount of $3,986.99 for medical expenses, plus interest. Farm Bureau filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial. This motion was denied by the trial court on the condition that a remittitur be entered on “all sums not exceeding the amount of $28,-603.01.” The appellees, in their acceptance of remittitur, reserved their right to have the verdict reinstated in its full amount on appeal. Subsequently, Farm Bureau appealed the judgment of the trial court.

In order to demonstrate why we conclude that the trial court did not err in striking defendant’s defenses filed during the trial, we set out, chronologically, the events. The complaints were filed on April 4, 1974. On January 15,1975, a pre-trial conference was held wherein the Guthries and Farm Bureau outlined their respective positions as to the issues involved in these actions. In the pre-trial order, Farm Bureau denied that the other driver, alleged to have been Tyrone Sturkie, was an uninsured motorist. Farm Bureau’s position was that only one insurance policy applied to this accident and that Terry Guthrie was contributorily negligent. However, on June 9,1975, the day of the trial, and almost five months after the pre-trial conference had been held, Farm Bureau filed two motions for summary judgment based upon a pro tanto release and trust agreement executed on February 4,1974, between Mr. and Mrs. Wilson Guthrie and Nationwide Iiisurance Company (hereinafter Nationwide) and the deposition of Wayne Horton, a claims adjustor for Nationwide. The McCrelles automobile that Terry Guthrie was riding in at the time of the accident, as well as a different automobile owned by Robert McCrelles, Sr. were covered under a policy with Nationwide. On June 9, 1975, the trial court denied Farm Bureau’s motions for summary judgment.

On June 10, 1975, the second day of the trial, Farm Bureau presented to the trial court a motion to add Nationwide as a party-plaintiff. Moreover, Farm Bureau filed the following pleas with the trial judge:

“PLEA ONE
“That the plaintiff has been paid by Nationwide Mutual Insurance Company and that the plaintiff in consideration thereof executed a release, without the knowledge and consent of this defendant, and that the said action of the plaintiff in executing such release is a bar to the complaint against these defendants.
“PLEA TWO
“That the plaintiff has been paid the sum of Eleven Thousand Dollars ($11,-000.00) by Nationwide Mutual Insurance Company, a corporation, which payment was made without the knowledge or consent of this defendant, and which this defendant claims as a part of any judgment that may be rendered against them.”

The trial judge ordered that the “pleas be and are hereby stricken as to raising new issues after order on pre-trial.” The trial judge also denied Farm Bureau’s motion to add Nationwide as a party-plaintiff.

Farm Bureau’s argument here is based entirely upon issues not raised at the pretrial conference, that is; that Nationwide, as the insurer of the McCrelles automobile in which Terry Guthrie was riding as a passenger when injured, was the primary insurer; that there were two premiums paid for two automobiles by the same named insured and the policies “stack” insofar as the uninsured motorist coverage is concerned; that since both policies contained uninsured motorist coverage of $10,-000 each, the amount of these policies when stacked resulted in $20,000 worth of coverage; that Farm Bureau was not obligated under its policies until the coverage [$20,-000] of the primary insurer, Nationwide, had been exhausted; that the Guthries settled with Nationwide without exhausting the uninsured motorist coverage and therefore there can be no recovery against Farm Bureau.

The insurance policies under which Nationwide was allegedly obligated to pay were not made part of the record on Farm Bureau’s motion for summary judgment, and are not a part of the record on appeal. Furthermore, as stated previously, the pre-trial conference was held eight months after the complaints were filed. At the pre-trial conference, the parties outlined their respective theories. Approximately five months later, during the trial, Farm Bureau attempted to raise additional theories of defense. Under ARCP 16, the trial judge restricted Farm Bureau to the use of the defenses it asserted at the pretrial conference. Although the purpose of Rule 16 is not to disallow automatically post pre-trial amendments [National Distillers and Chemical Corp. v. American Laubscher Corporation, (decided October 1,1976), Ala., 338 So.2d 1269], the pre-trial procedure becomes ineffective unless the trial judge has the right to disallow amendments to pleadings filed subsequent to the pre-trial hearing. See ARCP 16, Committee Comments. We find no prejudicial error in the refusal of the trial judge to permit the amendment of defendant’s pleadings here.

Even assuming the proffered pleas were timely, there remains a serious question whether under the facts of this case Farm Bureau’s pleas were legal defenses. As stated, we do not have the Nationwide policies before us. We cannot tell absolutely whether the proffered pleas did, in law, raise a valid defense, but we mention the point to show that the appellant has not shown that the trial court committed reversible error in striking the pleas during the trial of the case.

Under Rule 15, the trial judges must be given discretion to allow or refuse amendments. This Court has held that amendments are to be freely allowed and that their refusal must be based on a valid ground. Liberality of amendment does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced. Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975).

The Guthries assert error by the trial court in conditionally requiring remitti-tur. This issue is properly before this Court on appeal in that the appellees are authorized to challenge this remittitur under ARCP 59(f). The trial court’s amended order overruling the motion for a new trial on the condition of a remittitur states:

“. . . [T]he only claims allowed by the Pre-Trial order in this Action were contractual in nature under the uninsured motorist coverage, and the Judgment of Wilson Guthrie was therefore deducted.”

Wilson Guthrie’s recovery was for the total of his son’s medical expenses plus interest from the date of the complaint. The pre-trial order entered by another judge states in part: “W. Guthrie sues for Medical expenses and loss of services of T. Guthrie, his minor son.” The jury awarded the entire uninsured motorist coverage to Terry Guthrie and an additional award to Wilson Guthrie for medical expenses under the medical payment provisions of the Farm Bureau policies. The above-quoted portion of the pre-trial order, in addition to the pleadings and proof, clearly show that the question of medical expenses was placed in issue. Moreover, the jury was orally instructed that “Wilson Guthrie is seeking for medical expenses, and loss of services of Terry Guthrie, his minor son.” The trial judge erred in ordering the remittitur.

For the reasons given, the original judgment will be reinstated by the judgment of this Court. The trial court in all other respects is hereby affirmed.

The original opinion contained some minor errors and has been withdrawn and this modified opinion has been substituted for it.

ORIGINAL OPINION WITHDRAWN; ORIGINAL JUDGMENT OF TRIAL COURT REINSTATED; AFFIRMED.

BLOODWORTH, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

HEFLIN, C. J., concurs in the result.

JONES, J., concurs specially.

JONES, Justice

(concurring specially):

Whether the trial Court erred in disallowing Farm Bureau’s additional defenses and the addition of Nationwide as a party plaintiff turns not on an interpretation of ARCP, Rule 15; rather, it turns on an analysis of the merits of the proffered defenses. The substance of this defense is that, because Nationwide is the primary insurer and its coverage has not been exhausted, Farm Bureau’s coverage has not been invoked. The difficulty with this defense lies not in its timeliness from the standpoint of procedure, but in the incorrectness of its premise from the standpoint of substantive law.

In order to invoke the primary-secondary coverage principle and thus bar plaintiff’s right of recovery against Farm Bureau, stacking of Nationwide’s two policies must be legally operative. Not so, here. The offered pleas do not establish that Terry Guthrie was a named insured under Nationwide’s primary liability policy; nor was he included under its definition of omnibus insured. As a passenger in the vehicle covered by Nationwide, his coverage for uninsured motorist protection is by virtue of the omnibus insured clause of the uninsured motorist provisions of the policy, which also restricts the coverage to $10,000 per person plus medical benefits. Stacking would result if the insured fell within that category of uninsureds whose coverage is mandated by the Uninsured Motorist Statute, e. g., the operator of the insured vehicle by virtue of his omnibus coverage under the primary liability policy. Lambert v. Liberty Mutual Insurance Company, 295 Ala. 414, 331 So.2d 260 (1976); General Mutual Insurance Company v. Gilmore, 294 Ala. 546, 319 So.2d 675 (1975). Thus, where stacking does not result, as here, the primary coverage is exhausted upon the payment of the policy limits of $10,000.

These proffered defenses were properly refused on the ground that they failed to establish a legally cognizable defense to plaintiff’s claim.


author: ADKINS, Justice. ENGLAND, Justice

text:
    Robert L. SHEVIN, Attorney General, and as Head of the Department of Legal Affairs, State of Florida, Petitioner, v. CENVILLE COMMUNITIES, INC., et al., Respondents. Robert L. SHEVIN, Attorney General, and as Head of the Department of Legal Affairs, State of Florida, Petitioner, v. JUDGES OF the DISTRICT COURT OF APPEAL, FIRST DISTRICT, of the State of Florida, Respondents.
    Nos. 47644, 47375.
    Supreme Court of Florida.
    Oct. 21, 1976.
    Robert L. Shevin, Atty. Gen., Rod Tennyson, Sp. Asst. Atty. Gen., and Charles S. Ruberg, Asst. Atty. Gen., for petitioner.
    D. L. Middlebrooks, of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, and Sam Spector and Cynthia S. Tunnicliff of the Law Office of Sam Spector, Tallahassee, for respondents.
    Alan S. Becker, of Becker & Poliakoff, Miami Beach, for amicus curiae..
   ADKINS, Justice.

The Department of Legal Affairs initiated administrative proceedings under Ch. 501, Florida Statutes, against certain condominium developers. After the complaint was filed, the developers filed prohibition proceedings in the District Court of Appeal, First District. While the proceedings were pending in the District Court of Appeal, the Department of Legal Affairs sought a writ of prohibition in this Court seeking to halt the prohibition proceedings in the District Court of Appeal.

The District Court of Appeal entered a writ of prohibition. The Department of Legal Affairs sought a review of this decision by certiorari, contending that it conflicted with other decisions, and affected a class of constitutional officers'. We treated the suggestion for writ of prohibition as a petition for certiorari, consolidated the causes and issued the writs of certiorari.

Upon review of the record, it appears that this writ of prohibition was directed only to the proceeding against the developers and prohibited the Department of Legal Affairs from continuing with the previously filed administrative complaint. The prohibition proceedings in the District Court of Appeal being directed solely to the pending administrative proceedings, there is no conflict of decisions, nor does the decision affect a class of constitutional officers. The writs of certiorari were improvidently issued, and are, therefore, discharged.

It is so ordered.

OVERTON, C. J., and ROBERTS and BOYD, JJ., concur.

ENGLAND, J., concurs with an opinion, with which OVERTON, C. J., and ADKINS, J., concur.

ENGLAND, Justice

(concurring).

I originally agreed to accept tentative jurisdiction and to hear oral argument in this case in order to explore petitioner’s contention that the action of the First District Court of Appeal affected a class of constitutional or state officers. The jurisdictional briefs of the parties raised the possibility that the district court’s order of prohibition would operate to bar the Department of Legal Affairs, the Governor, the Cabinet and Florida’s state attorneys from launching administrative proceedings or adopting rules necessary to enforce and implement the state’s most effective consumer protection legislation — the so-called little FTC act.

It became apparent during oral argument in this case that the writ of prohibition issued by the First District Court of Appeal was not intended to operate as broadly as first appeared. The order “prohibited [the Department of Legal Affairs] from proceeding against the [respondents here] in attempting to exercise any jurisdiction under Chapter 501.204(1), Florida Statutes.” The restrictive view of that order taken by my colleagues is obviously correct, for it is only if the order is confined to the narrow issue presented to the district court by the Attorney General that it would be within the power or authority of that court to enter. For that reason, I agree with the majority that the Department of Legal Affairs, the Governor and the Cabinet, as rule-makers under the act, are not affected by this lawsuit. Similarly, the offices of state attorney throughout Florida, in their capacity as enforcing authorities under the act, are in no way affected by the district court’s decision. It follows that there is no “class” of constitutional or state officers affected by the district court’s limited order, and that only one agency of state government, the Department of Legal Affairs, is affected.

In Spradley v. State we recently contracted our jurisdiction as to matters alleged to affect a class of constitutional or state officers in an effort to stem the erosion of finality in the district courts. My views being wholly sympathetic to that end, I find no policy basis on which to suggest that we revisit and broaden Sprad-ley. It is not amiss, however, to note the effect that Spradley has had on our jurisprudence. My research indicates that, dating from its adoption in May 1974 to the present, only two cases have been accepted by this Court on the jurisdictional ground that a requisite class of officers was affected by a district court’s decision. Many assertions to that effect have been made, of course, but only two have prevailed. It may well be that there simply have not been in litigation during this period many cases decided by the district courts which would fall into the narrow area for which this category of cases has now been reserved. Still, the category is expressly provided in the Constitution and we have a clear obligation to give it meaning when appropriate. Had the enforcement powers of the state attorneys been impinged by the district court in this case, for example, or had the Cabinet’s, we might well have had a different responsibility.

OVERTON, C. J., and ADKINS, J., concur.

      . We have discretionary certiorari jurisdiction to review district court decisions which affect “a class of constitutional or state officers.” Article V, § 3(b)(3), Fla.Const.

      . Part II, ch. 501, Fla.Stat. (1975). We recently upheld the constitutionality of this act in Dep’t. of Legal Affairs v. Rogers, 329 So.2d 257 (Fla. 1976).

      . See Section 501.205, Fla.Stat. (1975).

      . Section 501.203(4), Fla.Stat. (1975).

      . 293 So.2d 697 (Fla. 1974), receding from the broader view of our jurisdiction in this area as applied in Richardson v. State, 246 So.2d 771 (Fla.1971).

      . Among others see Carter v. State, 331 So.2d 293, 294 (Fla. 1976) (concurring opinion); National Airlines, Inc. v. Edwards, 336 So.2d 545, 547 (Fla. 1976) (dissent).

      . Heath v. Becktell, 327 So.2d 3 (Fla. 1976); State v. Laiser, 322 So.2d 490 (Fla. 1975).


author: MILLS, Judge.

text:
    PANAMA CITY, Florida, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION et al., Respondents.
    No. CC-420.
    District Court of Appeal of Florida, First District.
    Sept. 28, 1976.
    Robert A. Hanudel and John Edward Alley, Alley & Alley, Tampa, Rowlett W. Bryant, Sale, Bryant, Daniel & Thompson, Panama City, for petitioner.
    Gerald A. Williams, Curtis L. Mack, Ben R. Patterson, Tallahassee, for respondents.
   ON MOTION FOR ORDER DIRECTING PUBLIC EMPLOYEES RELATIONS COMMISSION TO PREPARE RECORD ON REVIEW

MILLS, Judge.

Petitioner filed its directions to Public Employees Relations Commission to prepare, certify and transmit the record on review to this Court. Public Employees Relations Commission refused to comply. Public Employees Relations Commission contends that it is petitioner’s responsibility to prepare the record. Petitioner now moves for an order directing Public Employees Relations Commission to prepare the record. We grant petitioner’s motion on authority of our decision in Pasco County School Board v. Public Employees Relations Commission, 336 So.2d 483, opinion filed August 23, 1976.

It is the Public Employees Relations Commission’s responsibility to prepare the record for review. Pasco County School Board v. Public Employees Relations Commission, supra. In the absence of a rule prescribing the method of preparation, and until the Supreme Court of Florida has adopted a rule, we suggest that the record be prepared in one of the following manners:

1. Original Record. Public Employees Relations Commission shall transmit all of the designated portions of the original papers and exhibits in the proceeding in which the review is taken, together with a copy of any such parts of the proceedings as were stenographically reported and have been designated by the parties and certified by the reporter for inclusion in the record on review, and certified copies of the order, of which review is sought.

2. Transcript of Record. If the parties shall so stipulate or if the Commission is of the opinion, that the original papers in the case should be kept in the Commission pending the review for use in other proceedings or for other valid reason, the Commission may make an order to that effect, and thereupon it shall be the duty of the Commission to transmit to this Court a certified copy of the record.

The cost of preparing the record shall be borne by the party requesting the record and shall not exceed the cost which a clerk of a circuit court may charge for preparation of a record on appeal in accordance with the Florida Appellate Rules.

Public Employees Relations Commission shall have thirty days from the date of this order within which to prepare and transmit the record on review to this Court. Petitioner shall have thirty days after the date the record on review is filed with this Court to file and serve its brief in support of its petition on review.

McCORD, Acting C. J., and SMITH, J., concur.


text:
    The AMALGAMATED TRANSIT UNION, LOCAL 1464, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, and the City of Tampa, Florida, Respondents.
    No. CC-460.
    District Court of Appeal of Florida, First District.
    Sept. 28, 1976.
    Richard H. Frank, of Frank & Meyer, Tampa, for appellant.
    Jack McLean, Jr., Curtis Mack, Tallahassee, William Sizemore, Tampa, for appellee.
   ON MOTION FOR ORDER DIRECTING PUBLIC EMPLOYEES RELATIONS COMMISSION TO PREPARE RECORD ON REVIEW

MILLS, Judge.

Petitioner filed its directions to Public Employees Relations Commission to prepare, certify and transmit the record on review to this Court. Public Employees Relations Commission refused to comply. Public Employees Relations Commission contends that it is petitioner’s responsibility to prepare the record. Petitioner now moves for an order directing Public Employees Relations Commission to prepare the record. We grant petitioner’s motion on authority of our decision in Pasco County School Board v. Public Employees Relations Commission, 336 So.2d 483, opinion filed August 23, 1976.

It is the Public Employees Relations Commission’s responsibility to prepare the record for review. Pasco County School Board v. Public Employees Relations Commission, supra. In the absence of a rule prescribing the method of preparation, and until the Supreme Court of Florida has adopted a rule, we suggest that the record be prepared in one of the following manners:

1. Original Record. Public Employees Relations Commission shall transmit all of the designated portions of the original papers and exhibits in the proceeding in which the review is taken, together with a copy of any such parts of the proceedings as were stenographically reported and have been designated by the parties and certified by the reporter for inclusion in the record on review, and certified copies of the order, of which review is sought.

2. Transcript of Record. If the parties shall so stipulate or if the Commission is of the opinion, that the original papers in the case should be kept in the Commission pending the review for use in other proceedings or for other valid reason, the Commission may make an order to that effect, and thereupon it shall be the duty of the Commission to transmit to this Court a certified copy of the record.

The cost of preparing the record shall be borne by the party requesting the record and shall not exceed the cost which a clerk of a circuit court may charge for preparation of a record on appeal in accordance with the Florida Appellate Rules.

Public Employees Relations Commission shall have thirty days from the date of this order within which to prepare and transmit the record on review to this Court. Petitioner shall have thirty days after the date the record on review is filed with this Court to file and serve its brief in support of its petition on review.

McCORD, Acting C. J., and SMITH, J., concur.


text:
    UNIVERSITY OF SOUTH FLORIDA COLLEGE OF MEDICINE FACULTY ASSOCIATION, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION et al., Respondents.
    No. CC-461.
    District Court of Appeal of Florida, First District.
    Sept. 28, 1976.
    John J. Chamblee, Jr., of Frank & Meyer, Tampa, for appellant.
    Jack McLean, Jr., Cass Vickers, of Thompson, Wadsworth & Messer, Tallahassee, for appellee.
   ON MOTION FOR ORDER DIRECTING PUBLIC EMPLOYEES RELATIONS COMMISSION TO PREPARE RECORD ON REVIEW

MILLS, Judge.

Petitioner filed its directions to Public Employees Relations Commission to prepare, certify and transmit the record on review to this Court. Public Employees Relations Commission refused to comply. Public Employees Relations Commission contends that it is petitioner’s responsibility to prepare the record. Petitioner now moves for an order directing Public Employees Relations Commission to prepare the record. We grant petitioner’s motion on authority of our decision in Pasco County School Board v. Public Employees Relations Commission, 336 So.2d 483, opinion filed August 23, 1976.

It is the Public Employees Relations Commission’s responsibility to prepare the record for review. Pasco County School Board v. Public Employees Relations Commission, supra. In the absence of a rule prescribing the method of preparation, and until the Supreme Court of Florida has adopted a rule, we suggest that the record be prepared in one of the following manners:

1. Original Record. Public Employees Relations Commission shall transmit all of the designated portions of the original papers and exhibits in the proceeding in which the review is taken, together with a copy of any such parts of the proceedings as were stenographieally reported and have been designated by the parties and certified by the reporter for inclusion in the record on review, and certified copies of the order, of which review is sought.

2. Transcript of Record. If the parties shall so stipulate or if the Commission is of the opinion, that the original papers in the case should be kept in the Commission pending the review for use in other proceedings or for other valid reason, the Commission may make an order to that effect, and thereupon it shall be the duty of the Commission to transmit to this Court a certified copy of the record.

The cost of preparing the record shall be borne by the party requesting the record and shall not exceed the cost which a clerk of a circuit court may charge for preparation of a record on appeal in accordance with the Florida Appellate Rules.

Public Employees Relations Commission shall have thirty days from the date of this order within which to prepare and transmit the record on review to this Court. Petitioner shall have thirty days after the date the record on review is filed with this Court to file and serve its brief in support of its petition on review.

McCORD, Acting C. J., and SMITH, J., concur.


author: McCORD, Judge. McCORD, Judge.

text:
    HOME VOLKSWAGEN, INC., a Florida Corporation, Petitioner, v. John D. CALVIN, Director of the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles of the State of Florida, et al., Respondents.
    No. AA-447.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1976.
    Rehearing Denied Nov. 22, 1976.
    John W. Zeder, Paul & Thompson, Miami, for petitioner.
    Edwin E. Strickland, Gen. Counsel, Tallahassee, and Enoch J. Whitney, Asst. Gen. Counsel, Dept, of Hwy. Safety and Motor Vehicles, for respondent John D. Calvin.
    Karl J. Leib, Jr., Quinton, Leib & Lum-mus, Miami, for intervening respondents Bob Houston Motors, Inc., Rinehart Volkswagen, Inc., and Hialeah-Springs Motors.
    J. Robert McClure, Jr., McClure, Wiggin-ton, Campbell & Owen, Tallahassee, for amicus curiae Fla. Automobile Dealers Association.
   McCORD, Judge.

This is a petition for review of an order of respondent John D. Calvin, Director of the Division of Motor Vehicles, denying an application for franchise for a motor vehicle dealer license on the ground that petitioner failed to show that the existing dealers were not complying with their franchise agreements or had failed to show that the existing dealers were not providing adequate representation in the territory pursuant to § 320.642, Fla.Stat. (1973).

This proceeding began when on March 30, 1973, Volkswagen South, Inc., a licensed motor vehicle dealer in Miami filed an application for a “satellite” (supplemental) license for an additional place of business in the Homestead area. During 1972, the applicant had communicated informally with George Mortimer, respondent’s dealer license supervisor, regarding the requirements relating to licensing of motor vehicle dealers. In January of 1973, the four Volkswagen dealers in the Miami area (including all three intervenors) wrote Mortimer that they would have no protest to the satellite dealership in the Homestead area. On receipt of the application, Mortimer wrote Charles Goldstein of the applicant company that he had received the application and the letters of “no protest” and “upon completion of the building and final approval by the distributor, there appears to be no reason why this office could not issue your license.” He further stated that, “A positive position will be maintained in this matter as long as the letters of no protest remain in force.” Later, applicant requested clarification from respondent as to what might cause the “no protest” letters to no longer remain in force, and it received a letter from Mr. .Pelham, Chief of the Licensing Enforcement Bureau, dated April 17, 1973, providing as follows:

“Pursuant [to] your request, I have consulted Director John Calvin in regard to the continuing validity of letters of consent to operation of the captioned additional dealer lot by dealers in the surrounding territory.
Director Calvin has advised that these letters of ‘no protest’ would still remain in force as submitted after completion of the building and final approval by the distributor and this office of your business location.”

Later, by letter of July 19, 1974, Henry C. Noxtine, then dealer license supervisor of respondent, advised applicant that the Department was closing its files and refunding the $5 application fee “. . . due to nothing having transpired since [April 1973], as to completion of the building and action on the application, . . .” Although it was not reflected in the Department’s files or otherwise known by the Department, applicant had been engaging in substantial activity and expending money toward construction of new facilities at the satellite location since April 1973. Upon advising respondent of these activities, Noxtine, by_ his letter of August 13,1974, to the applicant, stated as follows:

“Be advised that after further review of this matter we are holding your application in our pending files and anticipate an early completion of all requirements including the location. At which time our field representative will inspect and approve the location so that license can be issued.”

Thereafter, applicant had final building plans prepared and a ground breaking for the satellite location took place in August 1974. Immediately thereafter, O. J. Mitchell, Inspector, District 10, of respondent raised certain questions as to the applicant’s proposed operation in a letter to applicant of August 28, 1974, which stated in part as follows:

“Request, in writing, reasons for the use of the name ‘Home Volkswagen’ in these [newspaper articles dated August 26, 1974] which is different from your original application for an additional location (only) of Volkswagen South, Inc. If you have changed the original concept of your application it will be necessary to re-file new papers again from the very beginning and at the same time cancel the pending application now on file with the Division of Motor Vehicles in Tallahassee.”

Thereafter, telephone conversations ensued between applicant and representatives of respondent and on September 17, 1974, applicant wrote the following letter to respondent:

“Dear Mr. Calvin:
This will confirm our telephone discussion on Friday. Volkswagen South intends to operate its Homestead satellite through a wholly-owned subsidiary. You advised me this was agreeable to your office provided it was agreeable to Volkswagen. My client has confirmed that this arrangement is agreeable with Volkswagen and therefore we will proceed on this basis.
Sincerely,”

Further communications with respondent resulted in the filing of an application for license by petitioner, Home Volkswagen, Inc., a wholly-owned subsidiary of the original applicant, Volkswagen South, Inc. The application was accompanied by a cover letter to respondent stating as follows:

“This application [of Home Volkswagen] is being submitted to you on your assurance that it will be merely a continuation of the application already filed for this location by Volkswagen South, Inc., that no new letters of consent will be required from dealers in the surrounding territory, and that the existing letters of consent for the Homestead location, together with the remainder of the present file will be simply transferred to this file and will be handled as a continuation of the previous file.”

Then in March 1975, Director Calvin advised petitioner by telephone that the application was in order but that a certificate from the Secretary of State confirming due incorporation and good standing of Home Volkswagen, Inc., was required. Such certificate was furnished to respondent and final steps were taken by petitioner to solicit bids for construction of the facility. Then, by letter of May 23, 1975, Enoch J. Whitney, Assistant General Counsel of respondent, wrote a letter to petitioner advising that it would be necessary that its application be treated as a new application because of the withdrawal of previous letters of “no protest” from other Volkswagen dealers in the territory; because there had been no “substantial beginning” and construction of the physical plant and no extension of the distributor’s letters of intent. Whitney further stated that upon receipt of a letter of intent from the distributor (Volkswagen Southeastern Distributor, Inc.), renewing approval of establishment of the proposed dealership, the matter would be set for hearing upon the new application. Petitioner then forwarded to respondent written confirmation from the distributor stating that the letter of intent was still in effect and requested that Mr. Whitney withdraw his previous letter. The only response was an order setting the application for hearing pursuant to § 320.642, Fla.Stat.

It is apparent from the record that Volkswagen South, Inc., and the distributor, Volkswagen Southeastern Distributor, Inc., intended from the beginning that the application would result in a new independent dealership rather than a supplemental license for an additional place of business for Volkswagen South, Inc. This is clear from a letter dated December 13, 1971, from Volkswagen Southeastern Distributor, Inc., to Charles Goldstein of Volkswagen South, Inc., stating in pertinent part as follows:

“This letter constitutes approval of your establishing an extension of your existing dealership in the town of Homestead, Florida, contingent on the following requirements:
* * * * * *
“The condensed content of the program is that after you have had reasonable experience in your satellite dealership, and the operating results reach a sales and profit point that would qualify it as an independent dealership, the assets would be sold to a corporation, to be formed with you as the major investor.”

Then follows a statement as to how Mr. Goldstein might acquire 100% of the new corporation stock. Then the letter adds:

“Of course, you also have an option to sell outright the assets of your satellite operation to a qualified purchaser that is approved by Volkswagen Southeastern Distributor, Inc.
Please acknowledge your understanding of the above by signing below.”

Mr. Goldstein’s name is then signed below in the space provided.

Respondent was correct in construing the application filed by Home Volkswagen, Inc., as a new application to be processed under § 320.642, Fla.Stat., rather than an application for supplemental license by Volkswagen South, Inc., to be processed under § 320.27(5), Florida Statutes. Although Home Volkswagen, Inc., is at present a wholly owned subsidiary of Volkswagen South, Inc., it is a separate corporation and its ownership could be readily changed (as pointed out by Goldstein’s previously quoted letter of December 13,1971).

It was certainly not the intent of the legislature that the provisions of § 320.642, Fla.Stat., could be circumvented by construing § 320.27(5), Florida Statutes, to allow issuance under it of a supplemental license to a corporation other than the original licensee. Such would obviously defeat the purpose of the statute — to protect automobile dealers against unfair treatment by the manufacturer. See Plantation Datsun, Inc. v. Calvin, 275 So.2d 26 (Fla.App. 1st 1973).

Petitioner contends that respondent is now estopped to deny the issuance of the license because of its efforts and expenditures in reliance upon respondent’s representations that the application was a proper one under § 320.27(5), Florida Statutes. These representations, however, with one exception, were made in relation to the application of the existing licensed dealer, Volkswagen South, Inc., and not Home Volkswagen, Inc. The one exception was the March 1975 telephone statement of Director Calvin to petitioner that the application was in order after respondent had been advised that the application was submitted on the Director’s assurance that it would be merely a continuation of the application already filed by Volkswagen South, Inc. This statement of Director Calvin was made, however, after the expenditures on which petitioner relies for estoppel had been made and the statement was repudiated by Mr. Whitney’s letter of May 23, 1975. Under these circumstances, the state is not estopped to deny the application of Home Volkswagen, Inc., and the record made at the hearing on the application does not show that the existing dealers were not complying with their franchise agreements or that they had failed to provide adequate representation to the licensee in the territory as required by § 320.642, Fla.Stat.

AFFIRMED.

RAWLS, Acting C. J., and SMITH, J., concur.

ON PETITION FOR REHEARING

McCORD, Judge.

In its petition for rehearing, petitioner contends that our opinion was in error in characterizing the original application of Volkswagen South, Inc., as an application under § 320.27(5), Fla.Stat. It contends that the application was filed under § 320.-642, Fla.Stat., and that respondent Director did not ever characterize it as an application under § 320.27(5). It argues that since the existing dealers in the territory had filed letters of no protest to the original application and respondent Director had subsequently approved amendment of it to change it from an application of Volkswagen South, Inc., to one for a new corporation, Home Volkswagen, Inc., a wholly-owned subsidiary of the original applicant, the withdrawal by the existing dealers in the territory of their letters of no protest should not have been allowed by respondent Director; that this court should rule that respondent Director is now estopped to deny issuance of the license to the new corporation in view of its expenditures made in reliance upon respondent Director’s tacit approval of the amendment to the original application.

§ 320.27 relates to application for motor vehicle dealer licenses. It pertains to new motor vehicle license applications and subsection (5) thereof applies to supplemental licenses. Subsection (5) authorizes issuance of a supplemental license to a previously licensed dealer for an additional place of business not contiguous to the premises for which the original license was issued.

§ 320.642 states as follows in relation to denial of a motor vehicle dealer license:

“The department shall deny an application for a motor vehicle dealer license in any community or territory where the licensee’s presently licensed franchised motor vehicle dealer or dealers have complied with licensee’s agreements and are providing adequate representation in the community or territory for such licensee. The burden of proof in showing inadequate representation shall be on the licensee.”

In spite of petitioner’s contention that the original application was not for a supplemental license under § 320.27(5), it bore all of the earmarks of a supplemental license. The operation proposed to be carried on under it was characterized by petitioner as “a branch of an existing dealer where a skeleton crew would be kept to provide sales and service to an area which it considered it was not servicing properly because of the distance involved.” It is obvious that the letters of no protest of the other dealers in the territory were based upon the original application by a dealer already licensed in the territory and not upon an application for an additional license of a new legal entity in the same territory. Respondent’s allowance of withdrawal of the letters of no protest was proper in view of the changed nature of the application. We find no merit to petitioner’s estoppel argument as it relates to the amended application, and we, therefore, adhere to our previous opinion with the exception of the following modification. In view of the circumstances related in our previous opinion and this opinion on petition for rehearing, our affirmance is without prejudice to further amendment of the application to reconvert it into an application of Volkswagen South, Inc., for a supplemental license under § 320.27(5), Fla.Stat., provided such amendment is made within thirty (30) days from the date hereof. Should such occur, respondent is directed to issue supplemental license to Volkswagen South, Inc.

RAWLS, Acting C. J., and SMITH, J. concur.


author: PER CURIAM.

text:
    The McNEILL CO., INC. and Solomon Construction Co. of Quincy, Appellants, v. The EXCHANGE NATIONAL BANK OF TAMPA et al., Appellees.
    No. CC-469.
    District Court of Appeal of Florida, First District.
    Oct. 15, 1976.
    James C. Truett and Gayle S. Swedmark, of Madigan, Parker, Gatlin, Truett & Swed-mark, Tallahassee, for appellants.
    Anthony J. McNicholas, III, of Holland & Knight, Tallahassee, for appellee-The Exchange National Bank of Tampa.
   PER CURIAM.

This interlocutory appeal having been found to be without substantial merit, it is

DISMISSED. Rule 4.2, F.A.R.

BOYER, C. J., and MILLS and SMITH, JJ., concur.


author: BOYER, Chief Judge.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Petitioner, v. PAN AMERICAN CONSTRUCTION CO., etc., et al., Respondents.
    No. CC-389.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1976.

      George L. Waas, Tallahassee, for petitioner.
    Francis L. Carter and William L. Gray, III, of Blackwell, Walker, Gray, Powers, Flick & Howell, Miami, for respondents.
   BOYER, Chief Judge.

The Department of Transportation (DOT) seeks review by way of certiorari of a final order declaring Rule 14-76.03, FAC invalid.

The genesis of the controversy is found in a petition for fair hearing filed by Pan American Construction Company (Pan American) with the Division of Administrative Hearings challenging the validity of the asphalt price adjustment rules adopted by DOT pursuant to F.S. 337.143. After Pan American filed an amended petition two hearings were held. Following the second hearing, the legislature enacted amendments to F.S. 337.143, altering the asphalt price adjustment formula which served as the basis for the rule challenged by Pan American. Those amendments were signed into law on June 17, 1976. (Please see Chapter 76-174, Laws of Florida 1976) Pursuant to the 1976 amendments, DOT adopted implementing emergency rules which purport to supersede the rules challenged by Pan American in their amended petition for fair hearing. On June 28, 1976, the hearing examiner issued the final order of which review is now sought. Being clear, succinct and concise, no useful purpose will be served by paraphrasing that order. It provides as follows:

“This matter came before this division on the Petition of the Pan American Construction Company filed under Section 120.56, Florida Statutes, challenging the validity of certain rules adopted by the Respondent, Department of Transportation. The rules challenged are in Chapter 14, Florida Administrative Code; specifically, 14-76.01 through .06. This chapter is headed PAYMENT ADJUSTMENT-BITUMINOUS MATERIAL.
“These rules have been adopted by the Department of Transportation under the authority of Section 337.143, F.S. In pertinent part that section states:
‘(l)(a) The adjustment shall be calculated separately for each month during which bituminous material is incorporated into a project, using the following formula: Pa = Id plus 5 cents, where:
‘1. Pa = The adjusted unit price for bituminous material; and
‘(2) Id = The department’s Asphalt Price Index in effect during the month in which the material is incorporated into the project.
‘(b) The department shall determine the Asphalt Price Index by averaging quotations in effect on the first day of each month at terminals which could reasonably be expected to furnish bituminous materials to road construction projects in the state.’
“Section 120.56, F.S., states in part:
‘(1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground:
‘(a) That the rule is an invalid exercise of validly delegated legislative authority. ‘(b) That the rule is an exercise of invalidly delegated legislative authority.’ “The Respondent, Department of Transportation does not challenge the fact that the Petitioners are substantially effected by the challenged rules and that they have adequate standing to file this Petition before this division. Petitioners claim that under Section 120.56, F.S., the rules in question are invalid exercises of valid legislative authority. Specifically, the Petitioners claim that the rules exceed and are contrary to the statutory authority of Chapter 373, F.S., which these rules allegedly implement. Section 373.143, F.S., permits adjustments to contract unit prices for bituminous material in contracts which bids were received by the Department of Transportation prior to April 1, 1974. That statute gives only one formula for reimbursement and gives a contractor the right or option to have this section applied to applicable contracts. Rule 14 — 76.03, F.A.C. requires a contractor to certify to the Department of Transportation the cost of materials and demonstrate the existence of irreparable economic harm in the performance of his contracts. The rule further goes on to elaborate on how the department may determine a variety of adjustments to the contract price. Rule 14-76.03(2), F.A.C., states in part:
‘The department shall not pay any amount greater than that documented by each contractor and justified by the department, and in no event shall a department pay an amount which is greater than that authorized by the formula.’ “The statute gives the Department of Transportation no authority to elaborate on the price adjustment formula. The statute mandates the price adjustment by use of the statutory equation.
“Clearly, by rule, the department has attempted to modify the existing statute. “While the statute gives only one formula for contract price readjustments regarding bituminous material, the rules of the Department of Transportation enlarge the statutory formula by adopting additional criteria which could reduce the contract price adjustments otherwise available to applicable contractors under the statute.
“The position of the Respondent, Department of Transportation, has been that the above referenced rules have been necessary to avoid giving contractors windfall profits. Such a response begs the question. The only issue in this proceeding is whether the rules have been adopted pursuant and conforming to statutory authority. Section 337.143, F.S. permits the Department of Transportation to adopt reasonable rules to implement the bituminous contract price adjustment formula, but does not give the Department any authority to modify the statutory formula. It is beyond dispute that an administrative agency may not adopt a rule which conflicts with or modifies an existing statute. State v. Atlantic Coast Line R. Co. [56 Fla. 617,] 47 So. 969, Louisville and N. R. Co. v. Railroad Commissioners [63 Fla. 491,] 58 So. 543, State ex rel. Railroad Commissioners v. Florida East Coast R. Co. [64 Fla. 112,] 59 So. 385, Atlantic Coast Line R. Co. v. State [106 Fla. 278,] 143 So. 255, Grissom v. Van Orsdel [(Fla.App.)] 137 So.2d 246, De Thorn v. Beck [(Fla.App.)] 280 So.2d 448. “Although the Petitioners claim they are challenging the validity of Rules 14-76.01 through .06, F.A.C., it is clear their real challenge is to 14 — 76.03, F.A.C. As it is undisputed that this rule attempts to modify and add to the single reimbursement formula contained in Section 337.-143, F.S., it is similarly beyond dispute that Rule 14-76.03, F.A.C., is an invalid exercise of validly delegated legislative authority and is therefore invalid.”

Challenging the order, DOT asserts two points:

“I. A SUBSTANTIVE CHANGE IN THE FORMULA PROVISION OF SECTION 337.143, FLORIDA STATUTES, UPON WHICH THE HEARING EXAMINER RELIED IN DECLARING INVALID RULE 14-76.03, F.A.C., WHICH CHANGE BECAME EFFECTIVE AFTER A HEARING BUT BEFORE ISSUANCE OF THE FINAL ORDER; RENDERS SUCH FINAL ORDER IN ERROR AS A MATTER. OF LAW.
“II. THE FACT THAT RULE 14-76.03, F.A.C., WAS SUPERSEDED PRIOR TO THE ISSUANCE OF THE FINAL ORDER RENDERS SUCH FINAL ORDER IN ERROR AND A HEARING EXAMINER WHO DERIVES HIS AUTHORITY FROM CHAPTER 120, FLORIDA STATUTES, DOES NOT HAVE THE AUTHORITY TO DECLARE INVALID RULE 14-76.03, F.A.C., WHEN SUCH RULE IS SUPERSEDED SUBSEQUENT TO A HEARING BUT PRIOR TO THE ISSUANCE OF A FINAL ORDER.”

The statute here construed has subsequently been amended by the 1976 session of the legislature (Ch. 76-174, Laws of Florida), and the rules of petitioner here construed have been superseded by rules adopted under the new statute. Petitioners contend that this cause is now moot because of the change in the statute and rules. While normally the law as it exists at the time of review will be applied to a pending case, in this proceeding, begun under the old law and rules adopted pursuant to it, we consider that respondents are entitled to construction of such law and rules. Their rights under contracts with petitioner which were in existence during the life of the former statute and rules may be affected by the construction of that statute and the rules adopted pursuant to it.

We have carefully considered the petition and supporting briefs and find them to be without merit. Accordingly, the Petition for Writ of Certiorari is

DENIED.

McCORD and MILLS, JJ., concur.


author: McCORD, Judge.

text:
    Florence E. LINEHAN and Daniel J. Linehan, her husband, Appellants, v. B. E. EVERETT d/b/a Dixie Ambulance Service, et al., Appellees.
    No. AA-63.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1976.
    As Modified on Denial of Rehearing Dec. 1, 1976.

      John F. Roscow, III, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Langdon & Helpling, Gainesville, for appellants.
    Stephen A. Rappenecker of Dell, Graham, Willcox, Barber, Rappenecker, Ryals & Henderson, Gainesville, and Charles Vocelle of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appellees.
   McCORD, Judge.

Florence E. Linehan and Daniel J. Line-han, plaintiffs below, appeal a final judgment in their favor entered pursuant to jury verdicts.

This action grew out of two successive automobile accidents in which Florence Li-nehan was injured. Both occurred on September 8, 1970. In the first, a truck owned by appellee Hudson Pulp and Paper Company collided with her automobile and in the second, the ambulance owned by appellee D. E. Everett d/b/a Dixie Ambulance Service, which was taking her to the hospital from the first accident, hit a bridge abutment. It subsequently developed from x-rays that in addition to chest injuries, Mrs. Linehan had a compressed fracture of the vertebrae. There was a difference of opinion between the various doctors who examined or treated her as to whether or not this fracture was an old fracture or one she received in one or the other of the two accidents. The Linehans contend on the first point that the court erred in permitting Dr. Edward Kissam to answer a hypothetical question asked him on cross-examination by appellees. We disagree and find no error as to the first point.

Upon being taken to the hospital from the accidents, Mrs. Linehan was examined and treated in the emergency room by Dr. Thomas Deal. In his testimony, given approximately five years later, Dr. Deal testified that he had no independent recollection of his examination and treatment of her, but from his notes, he was advised upon entering the emergency room that she complained of chest and back pains and that he “essentially did a complete physical examination.” He found injury to her chest but no evidence of back injury. His notes show that her back was within normal limits and upon being asked how he made that determination he stated, “I would have to just assume that I did the kind of back examination that I do with anyone, especially complaining of back pain, and that would mean to check and see how her range of motion was, how much she could move her back without pain or tenderness, and a careful examination of palpation up and down her back for any localized areas of tenderness. And depending on what I found and what kind of thing she was complaining of, more examination, and apparently the examination was normal, according to this.” He testified that if her back had not been normal, he would have put down something different. He was asked the question, “In order to reach the examination that Mrs. Linehan’s back was within normal limits, would you have palpated her back?” and he responded, “Yes, palpated up and down and usually percussion, strike with your fist up and down and back to find localized areas of tenderness, to see if any place is particularly injured.” He testified that the fact that he wrote in his notes that her back was within normal limits “indicates to me that I did an examination of her back, and did not find anything abnormal.”

Dr. Kissam, an orthopedic surgeon, testified that he first saw Mrs. Linehan on January 13, 1971, and treated her thereafter. He diagnosed a compressed fracture of the vertebrae and gave an opinion that it was related to the first of the two accidents. On cross-examination by appellees, he was asked the hypothetical question to which exception is taken. He was asked to assume an enumerated statement of facts which appellees contend were supported by testimony in the record as to the procedures and findings of the initial examination by Dr. Deal in the emergency room. These included the foregoing statements of Dr. Deal which were enumerated as hypothetical facts in the question. Dr. Kissam gave the following answer to the question:

“Assuming everything said as fact, I would not find any evidence of back injury on that examination that could be related to any accident.”

Appellant contends the hypothetical question included within the facts to be assumed by Dr. Kissam the opinion of Dr. Deal that Mrs. Linehan’s back was within normal limits and Dr. Deal’s assumption that he had properly conducted the back examination which were not facts. We consider these statements of Dr. Deal to have been sufficiently factual to be included in the hypothetical. If the jury found from Dr. Deal’s testimony that he had not conducted the back examination or had not conducted a sufficiently thorough examination to show whether or not Mrs. Linehan’s back was within normal limits, the jury would simply disregard Dr. Kissam’s answer to the hypothetical question. It all depends upon the credibility that the jury attaches to Dr. Deal’s testimony as to whether or not they believe he conducted a back examination and, if so, whether or not they believe the examination revealed the back to be within normal limits. He testified that the back examination was based upon his standard procedure in such cases where he has an initial report of back pain. Thus, there is evidence that the back examination was made and that it revealed the back to be within normal limits, both of which are factual. We find no error in the trial judge allowing Dr. Kissam to answer the hypothetical question.

The Linehans in addition contend the trial court erred in granting a motion in limine made by appellees which prohibited counsel for the Linehans from commenting in their closing argument to the jury on the fact, or draw inferences from the fact, that the appellees’ physician who had examined Mrs. Linehan at the appellees’ request was not called by appellees to testify at the trial. We agree that such was error. Mrs. Linehan testified she had been seen by Dr. McAuley, the examining physician for the appellees; that she was present in his office for approximately two and one-half hours in which one-half hour was spent on a physical examination of her by the doctor, and one hour was spent being questioned by him. This examination occurred about three months prior to the trial. The attorneys for appellees announced in chambers that they did not intend to call Dr. McAuley as a witness nor introduce his deposition into evidence and asked the Linehans’ attorney whether or not he intended to comment on such in his closing arguments to the jury. Upon receiving an affirmative reply, appellees made a motion in limine to prohibit the Linehans’ counsel from commenting on the nonappearance of Dr. McAuley. The motion was granted over the Linehans’ objection. While we have not found or been cited any Florida authority on this particular point, the weight of authority in other jurisdictions is to the effect that counsel may comment in closing argument on the failure of a defendant to call a medical witness who has been shown to have examined the complaining party at the instance of the defense. Penny v. Thurman, 34 Ohio App.2d 190, 63 Ohio Ops.2d 319, 297 N.E.2d 555 (1972); Satiemmo v. Days Transfer, Inc., 9 Ill.App.2d 487, 133 N.E.2d 539 (1956); Feldstein v. Harrington, 4 Wis.2d 380, 90 N.W.2d 566 (1958); Rodman Supply Co. v. Jones, 370 S.W.2d 951 (Tex.Civ.App.1963); Kickham v. Carter, 335 S.W.2d 83 (Mo.1960); Guin v. Mastrud, 206 Minn. 382, 288 N.W. 716 (1939); St. Louis S. F. & T. Railway Co. v. Green, 37 S.W.2d 123 (Tex.App.1931). We agree with the foregoing authority. The Linehans’ attorney should have been allowed to comment on the appellees’ failure to produce Dr. McAuley. The Linehans were entitled to have the jury draw such inference as they might deem justified from the failure of appellees to call Dr. McAuley.

Reversed and remanded for a new trial.

BOYER, C. J., and SCHLEGEL, LEW E., Associate Judge, concur.


text:
    Robert MICK, D.D.S., Petitioner, v. FLORIDA STATE BOARD OF DENTISTRY, Respondent.
    No. DD-160.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1976.

      Lester W. Jennings, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and Carol L. Reilly, Asst. Atty. Gen., L. Haldane Taylor, of Taylor & Brecher, Jacksonville, for respondent.
   ON MOTION TO DISMISS AND MOTION TO STRIKE

BOYER, Chief Judge.

Respondent has moved to dismiss the above-styled Petition for Review, primarily on the ground that the petition was untimely filed. The final order rendered by respondent was dated July 26, 1976, and was mailed to petitioner who received it on July 29, 1976. The Petition for Review was filed in this Court on August 30, 1976.

In an effort to demonstrate the timeliness of his petition, petitioner relies on Dubin v. Department of Business Regulation, Fla.App.1st 1971, 252 So.2d 290. In that case, this Court, noting the irregular procedure by which some administrative agencies publish and make part of the public record their written orders, held that when an agency sitting in a quasi-judicial capacity mailed a copy of its written order to the affected parties, three days will be added to the 30 day period for filing a petition challenging that order. Applying the Dubin rationale to the case sub judice, the 30 day period for filing a Petition for Review commenced on the date that the final order was rendered (July 26, 1976) and would have normally ended on August 25, 1976; but since the final order was mailed to petitioner, three days will be added for mailing which extended the period for filing the petition by three days, or until August 28, 1976. Since August 28, 1976, was a Saturday, and August 29,1976, was a Sunday, the filing of the Petition for Review on August 30, 1976, was timely. (See Rule 3.18, FAR)

Respondent cites two cases which purportedly support the Motion to Dismiss. First, respondent argues that when evidence of actual mail delivery on a specific date is presented, the time for filing a Petition for Review runs from the date of actual delivery, citing Concepcion v. Southern General Builders, Inc., Sup.Ct. Fla.1969, 219 So.2d 425. Sub judice, petitioner received notice of the final order on July 29, 1976. Counting that date as the first day of the 30 day period, the time for filing a Petition for Review would have ended on August 27, 1976. A review of the Concepcion case, however, reveals that it is inapplicable to the case under consideration. The Supreme Court in Concepcion was dealing with an Industrial Relations Commission rule which specifically provided that a certain act must have been taken within 20 days after “delivery of notice” by the Judge of Industrial Claims. There is no corresponding rule of appellate procedure requiring that a certain act be taken within so many days from the “delivery of notice”. Even were we to apply the “delivery of notice” date as respondent suggests, the petition would nevertheless be timely. Under Rule 3.18, FAR, in computing any period of time, the day of the act or event from which the designated period of time begins to run is not to be included. Thus, beginning with the day after the date of the event (delivery of notice), the 30 day period would have ended on August 28, 1976, which as previously noted was a Saturday. Thus, a petition filed on August 30, 1976, (the following Monday) would be timely.

Respondent also relies on Shevin ex rel. State v. Public Service Commission, Sup.Ct. Fla.1976, 333 So.2d 9. In that ease, the Public Service Commission rendered its order orally and never reduced it to writing. Petitioner there argued that this Court’s Dubin decision extended the time for filing his petition by three days. The Supreme Court noted that under those circumstances, the time for filing a Petition for Review was to be measured from the actual date upon which the administrative action was taken. By analogy, respondent argues that the time in the instant case should be measured from the date that the agency took its action, rather than from the date when the action was reduced to written order. However, as the Supreme Court noted in its decision, there was no written order whatsoever, and the rule laid down in Dubin could have no application to an order that was never reduced to writing and was never mailed.

We, therefore conclude that the logic of the Dubin decision is applicable to the case sub judice and that the Petition for Review filed on August 30, 1976, was timely filed.

Petitioner has filed a document entitled “Directions to Respondent Agency for Preparing Record on Appeal” in the body of which he directs respondent “to prepare the original and two copies of the record on appeal in this cause as set out in Section 120.57(5) [correctly Section 120.57(l)(b) 5], Florida Statutes, and to furnish the original to the District Court of Appeal, First District, and copies to the attorneys for the respondent agency and to the undersigned attorney for the petitioner.” Respondent has filed a Motion to Strike that document alleging, inter alia, that review from final agency action must be sought pursuant to Rule 4.5(c), FAR, which clearly requires petitioner to prepare and file the record when he files his petition, citing Yamaha International Corp. v. Ehrman, Fla.App.1st 1975, 318 So.2d 196 and other cases.

In the Yamaha case, we did indeed hold that the appropriate rules for such review are those governing certiorari (Rule 4.5(c), FAR), but as amplified by the requirements of Section 120.68, Florida Statutes. We thereupon directed petitioner to file, among other things, “a supplemental record complying with the above requirements.”

The Yamaha decision was rendered during the early months of our struggle with attempting to apply the Florida Appellate Rules and the traditional concepts of appellate review to petitions for review filed pursuant to the new Administrative Procedure Act, which became effective January 1, 1975. Subsequent experience, continuing in the absence of any rule promulgated by the Supreme Court of Florida, has required that we determine the party responsible for preparation of the record to be used on review. (Please see The Amalgamated Transit Union, Local 1464 v. Public Employees Relations Commission, and the City of Tampa, Florida, Fla.App. 1976, 338 So.2d 1285; University of South Florida College of Medicine Faculty Association v. Public Employees Relations Commission, et al., Fla.App. 1976, 338 So.2d 1286 and City of Panama City, Florida v. Public Employees, Relations Commission, et al., Fla.App. 1976, 338 So.2d 1284.) Although said cases sought review of actions involving the Public Employees Relations Commission, we have determined that the procedures there established should be made applicable to reviews generally under the Administrative Procedures Act. Accordingly, we hold, without in any manner receding from our decision in Yamaha International Corp. v. Ehrman, supra, that in the absence pf a rule prescribing the method of preparation, and until the Supreme Court of Florida has adopted an appropriate rule, the petitioner should designate to the agency those documents or things under the control or in possession of the agency which the petitioner desires to have included in the record and the record should then be prepared by the agency in one of the following ways:

1. Original Record. The agency shall include in the record all of the designated portions of the original papers and exhibits in the proceedings in which the review is taken, together with a copy of any such parts of the proceedings as were steno-graphically reported and as have been designated by the parties and certified by the reporter or other officer for inclusion in the record on review, and certified copies of the order of which review is sought.

2. Transcript of Record. If the parties shall so stipulate or if the agency is of the opinion that the original papers in the case should be kept in possession of the agency pending review for use in other proceedings or for other valid reasons, the agency may make an order to that effect, and thereupon it shall be the duty of the agency to include in the record a certified copy of such papers, exhibits or other transcript of proceedings.

Upon preparing the record in accordance with one of the foregoing suggestions and in accordance with the designations received from the petitioner, the agency should transmit same to the petitioner upon being paid by the petitioner the cost of preparation, which shall be borne by the party requesting the record; the charges not to exceed the cost which a Clerk of a Circuit Court may charge for preparation of a record on appeal in accordance with the Florida Appellate Rules.

The record for review should be transmitted to the Clerk of the Appellate Court by the petitioner as required by Rule 4.5(c), FAR.

We recognize that Rule 4.5(c)(1), FAR, provides in part: “Unless otherwise ordered by the Court, it [the petition] shall be accompanied by a certified transcript of the record of the proceedings the petitioner seeks to have reviewed or so much thereof as is essential.” We also recognize that in many instances it will not be possible to file the record, prepared as above provided, simultaneously with the petition. In such instances, the petition should be accompanied by a motion, pursuant to the above mentioned rule, requesting an extension of time, for a definite period, within which to comply with the foregoing and within which to file such record for review.

Respondent’s motion to strike the directions served upon it by petitioner is denied.

It is so ordered.

RAWLS and McCORD, JJ., concur.