author: WILLIS, BEN, C., Associate Judge.

text:
    FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellant, v. George B. TAYLOR and wife, Jo Ann Taylor, Appellees.
    No. X-177.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1975.
    Rehearing Denied Sept. 5, 1975.

      James E. Moore, and Harold F. Peck, Jr., Moore & Anchors, Niceville, for appellant.
    C. Thomas Holland, Crestview, for ap-pellees.
   WILLIS, BEN, C., Associate Judge.

The appellant was plaintiff in the trial court in a suit to foreclose a real estate mortgage given by appellees to secure an installment promissory note by them. Appellant is the owner and holder of the note and mortgage. The parties will be referred to as the mortgagors and mortgagee.

The pleadings and other preliminaries to the entry of the Final Judgment are somewhat unique and will be mentioned further. In the Final Judgment, dated October 8, 1974, the trial judge declined the foreclosure of the mortgage, reciting: “. it being the opinion of the Court that it would not be equitable to allow foreclosure of said property because this action is the result of both parties’ conduct”. However, the judgment did require the defendant mortgagors within 15 days to pay certain court costs; to pay certain sums to the mortgagee to cover installments and late charges accruing through October, 1974; and to pay a $450.00 fee to the attorney ad litem. It was found that $1,650.00 is a reasonable fee for plaintiffs attorneys and ordered the plaintiff mortgagee to pay it, and also declared that certain “personal costs” incurred by the mortgagee for attending the final hearing “shall be their own responsibility to pay”. In the final paragraph of the judgment it is provided that if the mortgagors comply with the payments required of them, as above mentioned, the note and mortgage shall be reinstated “and that the obligations and duties provided in the original note and mortgage will proceed under the original terms and conditions”.

The mortgagee raises two points on appeal, namely (1) that the trial court abused its discretion in denying the right to foreclose, and (2) the court erred in failing to assess attorneys fees against the mortgagors when the instruments provide for such collection.

The note involved is a conventional FHA form monthly installment instrument in the principal amount of $13,600.00 with 8Y2% interest on the unpaid balance payable in monthly installments of $104.58 each commencing September 1, 1970 and falling due on the first day of each succeeding month. It has an acceleration clause to the effect that if default be made in the payment of any installment and “such installment is not made good prior to the due date of the next installment, the entire principal sum and accrued interest shall at once become due and payable without notice at the option of the holder of this note”. It also provides that in the event of default in the payment of this note, “and the same is collected by an attorney at law, the — [makers]—hereby agree to pay all costs of collection, including a reasonable attorney’s fee”.

The mortgage is in an FHA form containing the usual covenants including those of payment of the note installments and all taxes and assessments on the property, and . . . “all and singular the costs, charges and expenses, including reasonable lawyer’s fees . . . incurred or paid by the mortgagee because of the failure on the part of the mortgagor promptly and fully to perform the agreements and covenants of said promissory note and this mortgage, and said costs, charges and expenses shall be immediately due and payable and shall be secured by the lien of this mortgage”.

The mortgage also provides :

“Any deficiency in the amount of such monthly payment shall, unless made good by the mortgagor prior to the due date of the next such payment, constitute an event of default under this mortgage. The mortgagee may collect a late charge not to exceed two cents (2‡) for each dollar ($1) of each payment more than fifteen (15) days in arrears to cover the extra expense involved in handling delinquent payments.”

The net effect of the payment provisions is that the monthly installment is due on the first day of the month, but there is a grace period of fifteen days within which it may be paid without further obligation. If not paid within this period a “late charge” may be assessed, and further, if such payment is not “made good” prior to the first of the next month, the mortgagee has the option to declare the entire unpaid principal and accrued interest due and payable “at once” without notice.

The facts involved are not in serious dispute. The mortgagor, George B. Taylor, was during the events involved a noncom-missioned officer in the U. S. Air Force and from about September 1972 until sometime shortly prior to the final hearing on October 8, 1974 was on active duty as a member of an Aerospace Rescue and Recovery Squadron at Clark Air Base in- the PJiillipine Islands. His family, including his wife, the defendant Jo Ann Taylor, was with him in the Phillipines. Apparently until April 1973 the monthly payments were seasonably made and received within the month. The May 1973 payment was a month and twenty days late but was accepted by the mortgagee. The next payment was on September 10, 1973 when payments of three installments were made. These were accepted and applied to the installments due on the first of June, July and August. Mail deliveries to and from the Phillipines *and the U. S. mainland require seven to eighteen days.

On September 29, 1973 the mortgagors mailed two money orders aggregating $121.38, which was the proper sum for the monthly payment due September 1, 1973. The payment includes the $104.58 installment as specified in the note, also escrow funds of $14.42 for accruing taxes and insurance as provided in the mortgage, and a late charge of $2.38. This payment was returned with a covering form letter dated October 4, 1973 stating the remittance is not sufficient to reinstate the delinquent account and that the sum of $240.38 is required “to eliminate the delinquency, which includes the regular installment due the first day of this month and late charge”. Thereafter the mortgagor mailed payments which would have been sufficient to pay the accruals within the month but when received in the succeeding month another installment would have fallen due on the first. In each instance the mortgagee would mail it back because of the lack of the current installment. This continued each month until March 1974 with remittances and returns often crossing in the mail. In April 1974 and thereafter mortgagors discontinued payments as it was likely they would be returned or even misplaced in the mail. However, they set aside monies in an escrow account to be available for payments on the debt.

The Complaint seeking foreclosure, filed April 6, 1974, alleged default by failing to pay payments due September 1, 1973 and all subsequent payments. Pursuant to motion by plaintiff, an attorney ad litem was appointed for defendant mortgagors pursuant to the Soldiers’ and Sailors’ Civil Relief Act (50 U.S.C.App. Sec. 520), as defendant, George B. Taylor, was on active duty in the military services. Constructive service of process on defendants was apparently perfected. However, the attorney ad litem filed a motion to stay proceedings under 50 U.S.C.App. 521 until the serviceman should be able to return. An order staying proceedings for 30 days was entered June 10, 1974. Ultimately the final hearing was conducted in two parts with the plaintiffs evidence being received on August 29, 1974 in the absence of defendant but with the attorney ad litem present and participating and on October 8, 1974 the testimony of mortgagor George Taylor was taken, final arguments heard, and the court’s ruling announced. It does not appear that any formal Answer was filed, but in the attorney ad litem’s affidavit and motion for stay of proceedings it was set forth that defendants had made every good faith effort to pay plaintiff the sums due and they had all been returned. There were other statements of confusion in communications at such distance and a change in amount of monthly payments due to loss of homestead status of the property involved.

It is apparent that the cause was heard primarily on the issue of whether or not the acceleration of the due date of future mortgage installments with resultant foreclosure would be unconscionable and an inequitable result. Just prior to final arguments by counsel, the mortgagee’s counsel asked to submit an affidavit for reasonable attorney fees. The Court did not respond directly and after the arguments on the merits the court inquired of the attorney ad litem if he had any comments to make concerning the attorney’s fees. Counsel stated he hadn’t had time to read the affidavit and inquired how much was being asked. The court replied that it was $1,650.00 based on a minimum of 23 hours. Counsel responded only to say “well .” when the court interrupted to say, “[a]fter you hear the Court’s order, if you feel like you need to have a hearing on it, we’ll set the matter”. Since the court did not assess an attorney’s fee for the mortgagee against mortgagors, counsel for the mortgagors, of course, did not further pursue the matter.

The mortgagor, George Taylor, testified that the reason for the late payment in September was the necessity of having his daughter flown back to the mainland to a hospital in Texas. He further testified that in October and November he was still having financial problems as he had to pay rent for his wife in Texas, presumably in connection with the child’s hospitalization, also pay for his living quarters in the Phil-lipines, and pay the installment on the mortgage in Florida.

The mortgagee contends that the trial court abused its discretion in refusing to honor acceleration of the due date of the debt and accord a foreclosure for the full amount of the unpaid principal and accrued interest. It is fully established in the jurisprudence of this state that an acceleration clause or promise in an installment note or mortgage confers a contract right upon the note or mortgage holder which he may elect to invoke upon default and to seek enforcement. Treb Trading Co. v. Green, 102 Fla. 238, 135 So. 510 (1931); Campbell v. Werner, Fla.App.3rd 1970, 232 So.2d 252. It is essential that valid contracts be safeguarded and the right of enforcement in the event of breach be accorded. A mere offer or willingness of a mortgagor to cure a default, after a valid election to accelerate, is not deemed a sufficient ground to deny acceleration and foreclosure. Campbell v. Werner, supra. Furthermore, mere notions or concepts of natural justice of a chancellor which are not in accord with establishment equitable rules and maxims may not be applied in rendering judgment. The obligation of a mortgagor to pay and the right of a mortgagee to foreclosure in accordance with the terms of the note and mortgage are absolute and are not contingent on the mortgagor’s health, good fortune, ill fortune, or other personal circumstances affecting his ability to pay. Home Owners’ Loan Corp. v. Wilkes, 130 Fla. 492, 178 So. 161.

However, it is equally well established in our law that a court of equity may refuse to foreclose a mortgage when an acceleration of the due date of the debt would be an inequitable or unjust result and the circumstances would render the acceleration unconscionable. Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751; Lieberbaum v. Surfcomber Hotel Corp. (Fla.App.3rd 1960), 122 So.2d 28; Althouse v. Kenney (Fla.App.2nd 1966), 182 So.2d 270.

In the case sub judice the mortgagor had not prior to the return of his tendered payment received by the mortgagee subsequent to October 1, 1973, been aware of any purpose or inclination of the mortgagee to be uneasy about this account. After nearly three years of regular payments, there was one lapse of a month plus 20 days in making a payment followed by a three month lapse but immediately after-wards there 'were paid three installments with late charges. The September 10, 1973 payment did not include the installment which fell due September 1. However, prior to October 4 this installment was paid, but mortgagee refused to accept it because the October 1 installment was not included. The lag in mail deliveries was obviously a circumstance which contributed to much of the lack of communication and misunderstanding. It is to be noticed here that the mortgagors were not in the Philli-pines by mere choice but due to a military assignment. Though the personal hardship arising from the daughter’s need of stateside hospitalization is not a circumstance to excuse payment of a debt when due, the distance between the mortgagors and mortgagee’s agent because of military obligations of the mortgagor is not to be ignored as a factor impairing the ability of the parties to communicate demands and responses thereto. The total evidence indicates a good faith effort on the part of mortgagors to meet the mortgagee’s conditions of bringing the account current. Perhaps the mortgagee would have been less adamant in returning tendered payments were it not for the fear that continued acceptance may have worked a waiver or estop-pel to assert an accelerated default. Cited in support of such a concept is Criado v. Milgram, Fla.App.3rd 1970, 237 So.2d 596. This case is not in point as there the estop-pel arose when the assignee of the mortgage knew that the mortgagors had continued to make payments to the assignor after the assignment, and thus assignee was es-topped to assert that mortgagor was in default for not making payments to him. Here, the trial judge was well within his discretion in concluding that it would be unconscionable to precipitate the maturity of the entire balance of over $14,000 which could only result in the loss of the mortgaged property through foreclosure, all because of a technical default of one month’s installment which well could arise from excusable misunderstanding and lack of effective and timely communication. We find no error in that portion of the judgment declining foreclosure and effecting reinstatement of the note and mortgage.

The second point urged by appellant that the court erred in failing to assess attorney’s fees against the mortgagor in this case is based upon Schechtman v. Grobbel, Fla.App.2nd 1969, 226 So.2d 1, and Rockwood v. DeRosa, Fla.App.4th 1973, 279 So.2d 54. In Schechtman there was upheld a refusal to foreclose a mortgage because of a technical breach of an obligation to pay escrow tax monies to the mortgagees when such payments were made into a special tax account which mortgagors opened in a bank. However, it was held the court was in error in considering a prayer for attorney’s fees as moot, and that a mortgage covenant to pay all reasonable lawyers fees incurred or paid by mortgagee because of failure of mortgagor to duly, promptly and fully perform and abide by all agreements, conditions and covenants of the mortgage required the court to take testimony to ascertain an amount for reasonable attorney fees payable to the mortgagee. It was said:

“After all, appellees were the parties in default and the evidence reflects no evidence of any wrongdoing on the part of appellants. Appellants may have sought an inequitable or unconscionable remedy, but their right to proper redress should not be denied.”

The Rockwood case merely follows Schechtman in holding attorney fees, when contracted for, should be assessed when the mortgagor is in technical default, even though acceleration and foreclosure are denied.

The Final Judgment recites at the outset a finding that “this action is the result of both parties’ conduct”. It does provide for the recovery by mortgagee of the court costs and requires the mortgagors to pay a fee for the services of the attorney ad litem. Though the mortgagee did not obtain all it sought, it suffered no monetary loss other than its expenses in attending the hearing and such attorney fees as were incurred. As the court found, and the evidence shows, more provident conduct on the part of each side would have made the action unnecessary. The mortgagors might have sent an extra months payment to be sure of meeting the requirements of reinstatement. The mortgagee might well have been less inflexible and adamant in pursuing its strict policy in view of the serviceman’s station on the other side of the world. Symbolically, the mortgagee resorted to a bulldozer when a garden spade might well have sufficed.

We deem the case sub judice may be distinguished from Schechtman, supra, in that here there is some conduct on the part of the mortgagee which precipitated this action when it might have been resolved by doing equity and certainly short of the methods it chose to pursue. In view of these circumstances we do not find an abuse of discretion on the part of the trial court in declining to assess attorney fees incurred by the mortgagee in this foreclosure action against the mortgagors.

The appellant has filed in this court a petition for an award of attorney’s fees. The same is denied on the authority of Ohio Realty Inv. Corp. v. Southern Bank of West Palm Beach, Fla.Sup.Ct. 1974, 300 So.2d 679, which holds that a mortgagee is not entitled to an award of attorneys fees on appeal in foreclosure action absent a clear indication in the instruments involved that the parties intended mortgage and promissory note provisions as to attorneys fees to include such fees on appeal. We deem the cited case to be controlling here.

Affirmed.

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


source: Caselaw Access Project

author: WALDEN, Chief Judge.

license: Public Domain

text:
    Mary Agnes Russell SIMPSON, Appellant, v. The FIRST NATIONAL BANK AND TRUST COMPANY OF LAKE WORTH, etc., et al., Appellees.
    No. 75-34.
    District Court of Appeal of Florida, Fourth District.
    July 31, 1975.

      Phillip C. Asher of Jackson & Jackson, Palm Beach, for appellant.
    Walter B. Hutcheson, Jr., of McGee, Johnson, Jordan, Hutcheson & Young, Lake Worth, for appellees.
   WALDEN, Chief Judge.

Appellant’s amended complaint stated a sufficient cause of action for declaratory relief under Fla.Stat. § 86.011 (1973). She sought a determination of her rights to contribution from her late husband’s estate, arising out of the fact that they had jointly signed a promissory note, now due. Although the note has not been reduced to judgment and appellant has thus far not made actual payment, the issue is critical at the present. Depending on time sequence and future adjudications, the non-claim statute, Fla.Stat. § 733.702 (Supp. 1974), would bar a future recovery. The non-claim statute reads in part:

“733.702 Limitations on presentation of claims.—
“(1) No claim or demand against the decedent’s estate that arose before the death of the decedent, including claims of the state and any of its subdivisions, whether due or not, direct or contingent, liquidated or unliquidated, or claim for personal property in the possession of the personal representative or for damages, including but not limited to actions founded upon fraud or other wrongful act . . .of the decedent, shall be binding on an estate, or on the personal representative, or on any beneficiary, unless presented as follows:
“(a) Within four (4) months from the time of the first publication of the notice to creditors, . . .” (Emphasis added.)

Appellant is possessed of a contingent claim, based upon her paying the monies due on the promissory note. By the very words of the statute that type of claim must be filed and recognized within the non-claim statute time limit of four months, or be rendered void. In Furlong v. Leybourne, 171 So.2d 1 (Fla.1964), a deceased’s children were the remaindermen to mortgaged property; the deceased’s widow had a life estate in the property. The Supreme Court held that the children could, and should, file a contingent claim against their father’s estate for future payments to be made by them toward the mortgage indebtedness. That court held:

“Filing of contingent claims against an estate is recognized by our laws. Section 733.16, Florida Statutes, F.S.A., refers to the filing of a ‘claim or demand, whether due or not, direct or contingent, liquidated or unliquidated.’ ” Id. at 5.

and

“Had they not timely filed their contingent claim it would have been barred.” Id. at 5.

Appellees here sought to distinguish Furlong v. Leybourne, supra, by arguing it dealt only with the subordination of creditor rights to remaindermen. That is too narrow a view of the holding. In this case the analogous problem of the contingent right of contribution from a co-debtor also requires the filing of a claim within the non-claim time limit. Appellees have argued that a claim for contribution may be made against the estate only when it matures, Lopez v. Lopez, 90 So.2d 456 (Fla.1956), and that appellant could obtain relief at such time as she makes the payments, Gibson v. Mitchell, 16 Fla. 520 (1968). In Gibson v. Mitchell, supra, a claimant was allowed to bring action against the beneficiaries for a claim which matured after the non-claim time limit (then two years) had run.

These contentions are not persuasive. The Lopez court held only that a wife who had signed a mortgage note with her husband on property held by the entireties was not entitled to contribution from his estate, not because her claim was contingent, but because she now had complete title to the property and the mortgage was:

“a burden borne wholly by each on the whole estate which each holds, simultaneously with the other, and because there is no benefit or enrichment to the deceased, or his estate, a surviving spouse is not entitled to contribution from the estate of the deceased spouse on a purchase money mortgage executed by both spouses for the purchase of lands, title to which is taken in an estate by the entireties.” Id. at 459.

The only mention of the contingent nature of the claim was made by the court as follows :

“We point out that although we have considered the matter before tis solely on the question of whether contribution should be allowed, we understand that contribution is allowed only when the party seeking contribution has made payment ' of the obligation in question. Ratte v. Ratte, [260 Mass. 165, 156 N.E. 870] supra. While the right to contribution arises at the time of creation of the relationship which creates it, it is only a contingent right until payment is made by the complaining party.” (Emphasis added.) Id. at 459.

and does not negate the notion that that contingent claim could be filed against a decedent’s estate within the time limits of the non-claim statute. True it cannot be collected, but it can be recognized before the statute runs.

The case of Gibson v. Mitchell, supra, is not applicable. The non-claim statute in force at that time did not allow for the filing of contingent claims. The present statute does so allow, and the appellant properly sought to have her claim recognized within the time period prescribed in Fla.Stat. § 733.16(1) (1973), now replaced by Fla.Stat. 733.702 (Supp.1974). The new probate chapter includes the following section, which further indicates that contingent claims must be filed:

“733.703 Form and manner of presenting claim. — A creditor shall file with the clerk a written statement of the claim indicating its basis, the name and address of the creditor or his agent or attorney and the amount claimed. The claim is presented when filed. If a claim is not yet due, the date when it will become due shall be stated. If the claim is contingent or unliquidated, the nature of the uncertainty shall be stated . . .” Fla.Stat. § 733.703 (Supp.1974)

The non-claim statute is designed to facilitate estate probations, to afford a prompt statement of claims, (witness the shortening of the time limitation on claims from two years in the 1920 Florida Statutes § 3739 to four months, Fla.Stat. § 733.702 (Supp.1974)) and to afford creditors and beneficiaries a prompt yet accurate appraisal of their rights.

We reverse with respectful directions to entertain appellant’s complaint to the end that she be afforded a declaratory judgment as to her rights, contingent or otherwise, to contribution from her husband’s estate.

Reversed and remanded.

CROSS and MAGER, JJ., concur.

      . This statute became applicable on July 1, 1975. We cite to this law because an appellate court must dispose of a case according to law prevailing at the time of the appellate disposition. In Re Estate of McCartney, 299 So.2d 5 (Fla.1974); Florida East Coast Railway Co. v. Rouse, 194 So.2d 260 (Fla.1967); Fitzsimmons v. City of Pensacola, 297 So.2d 107 (1st DCA Fla.1974); Personnel Board of Miami Beach v. Majewski, 227 So.2d 498 (3d DCA Fla.1969). We note the prior law, Fla.Stat., § 733.16 (1973), under which the trial court ruled, is identical to the new statute in all pertinent respects.


author: HENDRY, Judge.

text:
    ACME FAST FREIGHT, INC., Appellant, v. David BELL, Appellee.
    No. 74-1556.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Underwood, Gillis, Karcher, Reinert & Gordon, Miami, for appellant.
    Rentz, McClellan & Haggard, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   HENDRY, Judge.

This is an appeal by the defendant from an order denying its motion to vacate final judgment on default.

The trial court entered the order appealed after having considered the defendant’s motion to vacate default and final judgment. The motion was supported by affidavits stating that plaintiff’s suit was filed in the Circuit Court of Dade County, Florida on January 4, 1974 to recover for injuries allegedly received while on the premises of the defendant. The summons and complaint were served on January 11, 1974 upon C. T. Corporation, resident agent for the defendant in Dade County.

On January 14, 1974, the resident agent forwarded the summons and complaint to the office of the defendant at 123 South Broad Street, Philadelphia, Pennsylvania. The defendant received them on January 17, 1974 and on the same day it forwarded them in the normal course of business to its insurance broker, Bradley & Parker Inc. with the understanding that its insurance broker would thereafter forward the summons and complaint to the defendant’s liability insurance carrier, Maryland Casualty Company. For reasons unknown to the defendant, Bradley & Parker have stated that they never received the summons and complaint, consequently, no defensive action was taken on behalf of the defendant.

On April 11, 1974, the plaintiff moved for the entry of a default against the defendant for failure to respond to the complaint. Pursuant thereto the Clerk of the Circuit Court entered the default. Notice of the request for default and the subsequent entry thereof was not given to the defendant.

On June 13, 1974, a trial without a jury was held before the circuit court at which time the court considered evidence of the injuries and damages suffered by the plaintiff. A final judgment was entered by the court on July 22, 1974 in the sum of $20,-830.00 plus costs in the sum of $201.10. No notice of the trial was given to the defendant. Defendant’s first knowledge of the foregoing came to it on August 21, 1974 when it received a letter written by plaintiff’s attorney, advising the defendant that the sheriff was preparing to levy against the assets of the defendant. After receipt of the letter the defendant filed a motion on September 17, 1974, to vacate the default and final judgment on the ground of excusable neglect. On October 9, 1974, a hearing was held by the trial judge at which time evidence and argument of counsel were presented by both parties to the cause.

The court denied the defendant’s motion to vacate the judgment on default and this appeal followed.

The defendant contends that ’ the trial judge erred in refusing to set aside the judgment in default entered against it in light of the liberal view taken by our courts toward allowing the vacation of defaults so that a trial on the merits could be had. North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849; Gordon v. Vaughan, Fla.App.1967, 193 So.2d 474.

The general rule in respect to setting aside a default or final judgment consequent thereon is that relief may be granted within the sound discretion of the trial judge upon showing of the existence of a meritorious defense and a legal excuse for failure to comply with the rules. Robbins v. Thompson, Fla.App.1974, 291 So.2d 225.

Our Supreme Court said in Farish v. Lum’s, Inc., Fla.1972, 267 So.2d 325:

“The exercise of discretion by a trial judge who sees the parties first-hand and is more fully informed of the situation, is essential to the just and proper application of the procedural rules. In the absence of facts showing an abuse of that discretion, the trial court’s decision excusing or refusing to excuse, noncompliance with rules . . . must be affirmed.”
“[I]t cannot be held that, as a matter of law, inadvertance is sufficient to excuse compliance — it may be in some instances, but in other instances, not. It is the duty of the trial court, and not the appellate courts, to make that determination.” See GACL, Inc. v. Zeger, Fla.App., 1973, 276 So.2d 552.

After carefully considering the record, briefs and arguments of counsel, in the light of the rule favoring liberality in granting relief to a defaulting party, we have concluded that the trial court did not abuse its discretion in denying the motion to vacate the default and judgment.

We have considered the question of lack of notice to the defendant of the entry of the default'and the final judgment and find no error as no notice was required. Stevenson v. Arnold, Fla.1971, 250 So.2d 270.

Affirmed.


author: BOYER, Chief Judge.

text:
    G. M. DAVIS et al., Appellants, v. Sam SAILS, Appellee.
    No. X-29.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1975.

      Norman J. La Coe, Gainesville, for appellants.
    Richard T. Jones, Jones & Ritch, Gainesville, for appellee.
   BOYER, Chief Judge.

Appellants, Board of County Commissioners of Alachua County and defendants in the trial court, appeal from a final judgment which ordered rezoning of certain land in that county.

Typically, zoning controversies revolve around a conflict between individual rights of ownership, traditionally deemed to be paramount in democratic societies, versus public interests in the property of an individual, traditionally paramount in totalitarian societies. Florida courts have endeavored to achieve a balance between such conflicting interests, while nevertheless protecting the rights of the individual property owner.

Sub judice, the appellee property owner, plaintiff in the trial court, owns a parcel of land consisting of 37}4 acres in an urbanized section of Alachua County, west of the Gainesville city limits. There are several sinkholes on the property. It is bisected by a power line, bordered on the west by Tower Road, a two-lane north-south country road, on the south by a school site, on the east by lands presently being developed as a mobile home subdivision, and on the north by land owned by the Gainesville-Alachua County Regional Utilities Board, the intended purpose of which is the erection and operation of a sewage treatment plant with a sludge field on the property. Appellee, whose property was zoned agricultural, made application for a change of zoning to R-2, permitting no use except low density multi-family apartments. Defendants, sitting as- a zoning authority, denied the application after a public hearing. The property owner thereafter filed suit, alleging that the refusal by the defendants to rezone the property was arbitrary, unreasonable and confiscatory. At the trial four experts in the field of planning testified. Mr. Frank Blandford, a planning consultant retained by plaintiff, stated that the most appropriate use of the property was multi-family, and that medium density of about 15 units per acre would be appropriate. Mr. Harlan Hanson, who at the time of the application for rezoning was a planning consultant for Alachua County, stated that the site should have multi-family, low-denisty zoning. He recommended against the site • being zoned as single family. He further stated that the site could be developed as a planned unit development (PUD, a combination of single-family and multifamily units) but that he would not recommend it. Mr. Richard Tarbox stated that R-2 zoning would be proper for the property and that the site should not be developed for single-family use because of the sinkholes, the power line easement and the low lying areas on the property. He stated that the site was not practical for a PUD. According to Mr. Tarbox, the plan submitted by the land owner would call for 7.6 gross units per acre which is within R-2 zoning and that the County Planning staff had approved this plan. Mr. Norman Bowman, Director of the City of Gaines-ville Department of Community Development, testified by deposition that the original 1970 Land Use Plan designated the general area of the subject property as a combination or optional classification where either a single-family category could be retained or a multi-family category of eight units could be utilized. The fourth expert, Mr. Norwood Hope, opined that he would develop the property as multi-family on the northeast and southeast portions of the property and either have a buffer zone on the road side or a single-family area along Tower Road only. He considered a PUD as appropriate only if the density were 12 units per acre and that the majority of the property could be used for multifamily dwellings. It was .stipulated that another witness, Mr. A. T. Douglas, would testify the same as Mr. Hope. • Of the three defendant County Commissioners who testified, one, Commissioner Jack Durrance, stated that it was his thinking that the Board wanted to preserve single-family zoning along Tower Road. Mr. Robert Holton, Zoning Administrator of Alachua County, testified that the request contained in the zoning application would be an appropriate use of the site and would conform to the Master Land Use Plan. Mr. Robert Roundtree testified that the proposed sludge farm which was to be located immediately north of the subject property would give off an odor of wet commercial fertilizer when the sludge became wet. Other testimony was adduced which need not be here recited.

After hearing the foregoing testimony, the trial judge withheld his ruling, advising counsel for both parties that it appeared to him that the most appropriate use of the property would be a PUD, with single-family housing fronting on Tower Road and apartments further back on the site away from the road. The Judge further recommended that a new zoning application be submitted requesting a PUD classification. That recommendation was followed, whereupon the County Commissioners voted to rezone the property as a PUD but with an overall density of only five units per acre. The landowner thereupon applied to the Court to set aside the PUD or otherwise increase the density because the five units per acre requirement was unacceptable. The final judgment here appealed was thereupon entered wherein the trial court ruled that agricultural or single-family zoning was inappropriate and the defendants (appellants here) were enjoined from enforcing the PUD which had been approved for the property and were ordered to rezone the property to a zoning classification “more liberal than single-family residential with a density consistent with Section 3 of the Zoning Regulations of Alachua County, Florida and the Land Use Plan for Alachua County”.

Appellants urged those points which are customarily presented by zoning authorities in zoning cases, among them being that the judgment of the court is contrary to the manifest weight of the evidence and that the trial judge ignored, violated or overlooked the “fairly debatable rule”.

The rules of law applicable to zoning procedures and cases are not, in and of themselves, complicated. However, the application of those rules are often the source of extended controversies. In this opinion we will attempt to discuss and explain the rules of law most often used and abused, to the end that, hopefully, future litigation and resulting appeals might be obviated.

The law is so well settled as to require no citations of authority that a city or county has the right and power, within the confines of applicable enabling statutes, to adopt zoning ordinances or regulations. Further, such zoning ordinances or regulations are, like other legislative acts, presumed valid. Two other rules or law, which sometimes become confused and intertwined, are the “substantial relationship rule”, and the “fairly debatable rule”. The substantial relationship rule is substantive law, and may be simply stated as follows: In order for a zoning ordinance or regulation to be valid, it must have Some substantial relationship to the promotion of the public health, safety, morals or general welfare. When correctly applied, this rule is not in any manner modified by the fairly debatable rule. The latter rule, being a rule of procedure or application, may be simply stated as follows: If the application of a zoning classification to a specific parcel of property is reasonably subject to disagreement, that is, if its application is fairly debatable, then the application of the ordinance by the zoning authority should not be disturbed by the courts. Of course, it is always a matter for the court to determine whether a zoning authority acted reasonably or fairly or whether capriciously or arbitrarily. The fairly debatable rule applies to the application of the ordinance and does not modify the requirement that the ordinance itself and the application thereof must have a reasonable relationship to the health, safety, morals or general welfare.

The general law, which is also the law of Florida, as to the validity of a zoning ordinance or classification, as applied to a particular parcel of property, is succinctly stated in Volume 101 C.J.S. Zoning as follows :

“The justification for zoning enactments is the greater benefit which accrues therefrom to the public as a whole, or the paramount interest of the public welfare and the realization that private interests must sometimes be subordinated to the public good, or, * * * it must be found in some aspect of the police power asserted for the public welfare. Such enactments, however, are subject to limitations on the police power, and cannot validly be extended beyond the accomplishment of purposes rightly within the scope thereof.
“To be valid, they must be for the superior interest and rights of the public, or they must be predicated on a public interest and founded on a need of the community, and be conducive to, or sub-serve, the public welfare, or be for the public good. They must have a rational relation to the protection of the basic interest of society, and a public benefit must be derived from them. They are invalid if they disclose no purpose to prevent some public evil or fill some public need.
“In order to be valid as a proper exercise of the police power, especially where their application will cause a destruction of property values, zoning laws, ordinances, by-laws, regulations, and restrictions must advance, promote or tend or be designed to promote, the public health, safety, morals, or general welfare, or be reasonably necessary for the protection of the public health, safety, comfort, morals, or welfare, or have or bear a real and substantial relation to public health, safety, morals, or the general welfare; and it has been held that such enactments must bear the required relation with respect to the particular premises to which they are applied.
* * * * *
“The required relationship of the zoning ordinance or regulation must be real and not feigned. The law will not tolerate an invasion of the right of property under the guise of a police regulation in the professed interest of the public health or safety when it is manifest that such was not the object of the regulation. Hence, a restrictive ordinance which bears no material relation to the public health, safety, morals, or general welfare cannot, under the guise of a zoning regulation, either confiscate property or inflict a substantial injury on the owner thereof.” (101 C.J.S. Zoning § 16; underlining added)

The test as to the validity of a zoning ordinance is not whether it may on some future date bear the required relation to the public welfare, but rather whether it does so now. West Bloomfield T. P. v. Chapman, 351 Mich. 606, 88 N.W. 2d 377; Gust v. Canton T. P., 342 Mich. 436, 70 N.W.2d 772; Barney & Casey Co. v. Town of Milton, 324 Mass. 440, 87 N.E. 2d 9.

In City of Miami Beach v. 8701 Collins Avenue, Sup.Ct.Fla.1953, 77 So.2d 428, the Supreme Court enunciated the polestar of the law applicable to zoning regulations, citing numerous cases and authorities, as follows:

“It is well settled that a zoning ordinance to be valid must bear a substantial relation to the public health, safety, morals or general welfare.” (77 So.2d at page 430)

It is clearly the duty of the court to determine the validity of zoning ordinances as' applied to a specific parcel of property. This proposition was enunciated by the Supreme Court of Florida in a 1949 case, City of Miami Beach v. First Trust Co., 45 So.2d 681. In that case, a parcel of property on Miami Beach had been zoned for single family residences. In due course, adjoining lands were used for multiple family purposes, including hotel and apartment houses. Upon the city refusing to rezone the plaintiff’s property for mul-ti-family residences, suit was commenced, whereupon the chancellor ruled with the city. Appeal was taken to the Supreme Court of Florida, which initially affirmed the chancellor. Upon petition, rehearing was granted, whereupon Justice Terrell stated as follows:

“When the case was before us initially the proposition that got the ear of the Court was the insistence by appellant [City] that the ordinance was presumptively valid, that if fairly debatable the action of the city in passing it should be upheld and the Court should not substitute its judgment for that of the City Council. * * * but on thorough review of the case on petition for rehearing, I am convinced that our judgment was erroneous. When, as here, the constitutional rights of the citizen are assaulted, I do not think the Court can in the manner shown bypass its duty to adjudicate them. * * * ” (45 So.2d at page 688)

The court thereupon reversed the lower court, holding that under the circumstances of that particular case the subject ordinances constituted confiscation, observing:

“ * * * There is no showing that the zoning plan of the city will be jeopardized or materially affected by removal.” (45 So.2d at page 688)

In the case sub judice, as heretofore observed, there was expert testimony before the court that the zoning plan of the county would not be jeopardized nor materially affected by the granting of appellee’s application.

In an even earlier case, Ex parte Wise, Sup.Ct.Fla.1940, 141 Fla. 222, 192 So. 872, the owner of a parcel of property which was zoned for residential purposes, but located in an area wherein a number of surrounding properties were used for light businesses, undertook to use his property for the packaging and selling of citrus fruits in defiance of the zoning ordinance. He was thereupon arrested, convicted and sentenced for violation of the zoning ordinance. The Supreme Court of Florida there held the ordinance valid generally, but invalid as applied to the subject owner, stating as follows:

“The ordinance is assailed here on the ground that it is arbitrary, discriminatory, unreasonable, unconstitutional and void.” (192 So. at page 873)
ijc ‡
“This Court, speaking through Mr. Justice Ellis, in Pounds v. Darling, 75 Fla. 125, 77 So. 666, 668, L.R.A.1918E, 949, pointed out the prerequisites of a valid ordinance, and said: ‘ * * * To he valid an ordinance must be reasonable and not in conflict with any controlling provision or principal of law (Waller v. Osban, 60 Fla. 268, 52 So. 970); should it be within the powers expressly or impliedly conferred (Hardee v. Brown [56 Fla. 377, 47 So. 834], supra; Malone v. City of Quincy, 66 Fla. 52, 62 So. 922, Ann.Cas.1916D, 208; Ferguson v. McDonald, 66 Fla. 494, 63 So. 915), and if any doubt exists as to the extent of a power attempted to be exercised by a municipality out of the usual range, or which may affect the common-law right of a citizen, it is to be resolved against the municipality (Anderson v. Shackleford, [74 Fla. 36], 76 So. 343 [L.R.A. 1918A, 139]).’
“An ordinance when in force should not in its application deprive the owner of a reasonable use and enjoyment of his own property, thereby depriving him of his property without due process of law or just compensation. The ownership of property is guaranteed by the State and Federal Constitutions. Frequently it becomes necessary for the property and use thereof to yield to constitutional regulations. While a municipality by ordinance may regulate or limit the use of property in behalf of the general welfare of its citizens, such action is authorized only in a constitutional manner. See City of Palmetto v. Katsch, 86 Fla. 506, 98 So. 352; Liggett Co. v. Amos, 104 Fla. 609, 141 So. 153.” (192 So. at pages 874 and 875)
******
“It is a well-recognized principle of law that a statute or ordinance may be valid as applied to one set of facts, though invalid in its application to another set of facts.” (192 So. at page 875)
* * * * * *
“We therefore hold that the Zoning Ordinance, supra, is valid, but in its application to the building of the petitioner the same is on this record unreasonable and unenforceable.” (192 So. at page 876)

Burritt v. Harris, Sup.Ct.Fla.1965, 172 So.2d 820, is a landmark case in Florida. There the Supreme Court had occasion to pass upon the validity of a zoning ordinance of Duval County as applied to a particular parcel of property. In that case, the Circuit Judge dismissed with prejudice a complaint brought by the property owner attacking the zoning of his property. This Court, in Burritt v. Harris, Fla.App.1st 1964, 166 So.2d 168, affirmed the action of the Circuit Court, Judge Rawls dissenting. Certiorari was taken to the Supreme Court, where the action of the Circuit Judge and the decision of this Court were quashed, the Supreme Court, speaking through Justice Caldwell, saying:

“ * * * Qrcuit Court dismissed the suit and the District Court of Appeal affirmed on the ground that the zoning of the property for residential use was ‘fairly debatable’ and the petitioner had failed to show such zoning to be arbitrary. We must disagree.” (172 So.2d at page 822)
* * * * *
“It is not established that the zoning restriction here imposed bears substantially on the public health, morals, safety or welfare of the community * * * ” (172 So.2d at page 822)
* * * * * *
“The constitutional right of the owner of property to make legitimate use of his lands may not be curtailed by unreasonable restrictions under the guise of police power. The owner will not be required to sacrifice his rights absent a substantial need for restrictions in the interest of public health, morals, safety or welfare. If the zoning restriction exceeds the bounds of necessity for the public welfare, as, in our opinion, do the restrictions controverted here, they must be stricken as an unconstitutional invasion of property rights.” (172 So.2d at page 823)

It might be well at this juncture to discuss a temporary hiatus in the law which followed the Burritt decision. In Lawley v. Town of Golfview, Fla.App. 2nd 1965, 174 So.2d 767, it was held that the Burritt case had “created an innovation in the zoning law of Florida by casting on the zoning authority the burden of establishing by a preponderance of evidence that the zoning restrictions under attack ‘bear substantially on the public health, morals, safety or welfare of the community’ if the ordinance is to be sustained.” Following the Lawley decision, several cases held the burden upon the zoning authority to prove reasonableness of its actions. However, the Supreme Court, in City of St. Petersburg v. Aiken, Sup.Ct.Fla., 217 So.2d 315, recited that Burritt v. Harris had “been erroneously construed as creating ‘an innovation in the zoning law of Florida’.” It is important to note, nevertheless, that the Supreme Court, in City of St. Petersburg v. Aiken, affirmed the Burritt decision and the ultimate holding in that case, the Court stating:

“The Burritt decision, * * * was simply that the zoning restriction 'exceeds the bounds of necessity for the public welfare’ and was therefore arbitrary and invalid.” (217 So.2d at page 316)
******
“The final conclusion in Burritt, in any event, fully accords with the earlier cases.” (217 So.2d at page 317)

So it is that the Burritt case, as emphasized in City of St. Petersburg v. Aiken, supra which simply affirms the prior law of this State and, indeed, the nation, confirms the polestar as to determining the validity of zoning ordinances, to-wit: That zoning restrictions may not exceed the bounds of necessity for the public welfare.

Another case which summarizes virtually all of the law relative to the controversy sub judice, and which is factually quite similar, is Watson v. Mayflower Property, Inc., Fla.App. 2nd 1965, 177 So.2d 355 (certiorari denied by Supreme Court, 183 So.2d 215). In that case, the plaintiff land-owner owned a parcel of property, zoned for single family dwellings, bordered by the Atlantic Ocean on the east and Mayan Lake on the west. The property to the south was zoned for multiple family use. The complainers, who sought to uphold the city’s zoning classification, were the owners,of single family residences across Mayan' Lake to the west of the subject property. The city, in defending its position, urged the same position as the appellant in the case sub judice, to-wit: That it had the power to zone, that the court could not substitute its judgment for that of the governmental agency, and that the zoning under attack was “fairly debatable” and, therefore, not subject to judicial review. The city, in its brief in that case, alleged two points involved, to-wit:

“ ‘Did the lower court erroneously hold that the “fairly debatable” rule was inapplicable to sustain the zoning ordinance when the evidence was such that reasonable men could differ in their conclusions, and where the evidence did not conclusively demonstrate equivalent confiscation of private property interests for the benefit of adjoining landowners?’
“and
“ ‘Is a zoning ordinance which permits an orderly neighborhood development according to a comprehensive zoning plan, and allows a reasonable economic use of such property while protecting adjoining landowners from the inevitable consequences of over-intensive development, invalid merely because it denies the highest economic gain to the plaintiff?”’ (177 So. at page 358)

On the other hand, the owner contended as quoted in the opinion, as follows:

“ ‘It was plaintiff’s position at trial that the present zoning as it relates to its property was unconstitutional, and denied to it the highest and best use of the property, the zoning having no substantial relation to the public health, welfare or safety.’ ” (177 So.2d at page 358)

In that case, the chief building inspector testified that in his opinion the application for rezoning should have been granted although there was “no physical reason why the property could not be used for the purposes for which it was zoned”. There was other testimony that the zoning sought did not affect safety or public health and an appraiser testified that the property was of much greater value if zoned as requested than as then zoned. The chancellor held that the zoning classification restricting the use of the subject property to single family dwellings was arbitrary and unreasonable and had no substantial relation to the public health, safety or general welfare, and insofar as it applied to plaintiff’s land, was unconstitutional. The District Court of Appeal extensively quoted the chancellor’s order with approval. Because of its peculiar applicability to the case sub judice, portions of that order and opinion are quoted as follows :

“As a preface, it is stated in 35 Fla.Jur., Zoning Laws, § 10, that, ‘The right of an owner to devote his land to any legitimate use is properly within the terms of the Constitution and the legislature may not under the guise of the police power impose unnecessary or unreasonable restrictions on that use. To be valid, a zoning ordinance must have a substantial relation to the public health, saftey, morals, or general welfare. The courts usually will hold a zoning ordinance invalid when it clearly appears that the restrictions are arbitrary and unreasonable and have no substantial relation to health, safety, morals, or the general welfare.’
“In City of Miami Beach v. Lackman, Fla. (1953) 71 So.2d 148, 152, it was said that, ‘An ordinance may be said to be fairly debatable when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity.’ And in Sarasota County v. Walker, Fla., (1962) 144 So.2d 345, the statement appears that, ‘If the question of the validity of a zoning ordinance is fairly debatable, the court should not substitute its judgment for that of the enacting governmental agency.’” (177 So.2d at page 359; underlining added)
******
íí * * * highest and best use for the property is for hotels and apartments. The present zoning * * * has reduced the value of the land from approximately two million dollars to a half million dollars. The zoning plan of the city will not be jeopardized or materially affected by removing the zoning restrictions. Due to the changed conditions the validity of the ordinance is not fairly debatable. It was not shown that the public health or safety would be endangered * * *” (177 So.2d at page 361; underlining added)
******
“ * * * in City of Miami Beach v. Lachman, supra, the statement appears that, ‘While Village of Euclid, Ohio v. Amber Realty Company [272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016] approved the zoning and segregation of private property into residential, business, and industrial districts, it was equally emphatic that if such zoning did not have some substantial relation to the public health, safety, morals, and general welfare, it would be held to be arbitrary, unreasonable and unconstitutional. There is no warrant whatever in this, or any other, case to support the thesis that zoning boards are infallible and that any kind of a zoning proposition they promulgate will be upheld. In other words, zoning boards are in the same category as all other administrative boards. Their ordinances and regulations will be given serious consideration and their judgments great weight, but where it is conclusively shown that they deprive one of his property without due process or otherwise infringe on State or Federal constitutional guarantees unreasonably, such ordinances and regulations cannot be said to be reasonably debatable and will be stricken down.’ Also see Tollius v. City of Miami, Fla., 96 So.2d 122; City of Miami Beach v. Prevatt, Fla., 97 So.2d 473.” (177 So.2d at pages 361 and 362; underlining added)

In Fogg v. City of South Miami, Fla.App.3rd 1966, 183 So.2d 219, the court considered a case wherein a parcel of property was zoned in a classification to permit business but to prohibit a “drive-in operation”. The owner of the property attacked the zoning as being arbitrary and unreasonable and, of course, the city claimed it to be within their power and “fairly debatable”. The chancellor agreed with the city and the property owner appealed. The District Court of Appeal reversed, stating:

“We reverse upon a holding that the ordinance, as applied to this particular business, has no relation to the public welfare.” (183 So.2d at page 219)

The Appellate Court quoted the chancellor’s statement of the issue as follows:

“ ‘The ordinance under attack meets the “fairly debatable” rule. The effect of this Ordinance on the zoning plan and the economic welfare of the City — as well as its effect upon the housewife’s quest for milk — is for the elected officials of the City to decide. The Courts should not invade the authority of those elected officials absent a paramount constitutional right and duty to do so. Such right and duty have not been shown in this case.’ ” (183 So.2d at page 221)

The Appellate Court then stated:

“While we agree with the chancellor’s statement of the question, we must disagree with his answer. The ‘public welfare’ with which the City and the courts must be concerned is the welfare of the whole community. A benefit or anticipated benefit to a special group within the City is not enough. Burritt v. Harris, Fla.1965, 172 So.2d 820; City of Miami Beach v. Seacoast Towers—Miami Beach, Fla.App.1963, 156 So.2d 528; cf., Rabin v. Conner, Fla.1965, 174 So.2d 721.” (183 So.2d at page 221; underlining added)
“Having concluded that the exclusion of the use in question, as to plaintiff’s business, has no substantial relation to the generál welfare, we hold that the chancellor erred in holding that the prohibition against drive-in retail dairy products stores was not invalid.” (183 So.2d at page 221)

Another case which, factually, is very similar to the case sub judice is Kugel v. City of Miami Beach, Fla.App. 3rd 1968, 206 So.2d 282. That case is peculiarly applicable inasmuch as there the court considered a situation wherein, as here, the character of the subject neighborhood was in transition. In Kugel, the owners, whose property was zoned for residential use, attacked the zoning as being so restrictive as to be unconstitutional. The chancellor entered a decree in favor of the city, finding that the city had acted reasonably in determining a demarcation line between business properties and the property owned by the plaintiffs. The Appellate Court stated the question before it as follows :

“On this appeal we are presented with the question of whether such restrictive zoning, as that alleged in the complaint and proved in the record, can be justified upon the ground that a line must be drawn somewhere and that since the legislative authority has drawn that line, the courts ought not change it.” (206 So.2d at page 283)

In responding to that question, the Appellate Court stated:

“The Supreme Court of Florida set out the applicable reasoning in Burritt v. Harris, Fla.1965, 172 So.2d 820 at 823:
‘The constitutional right of the owner of property to make legitimate use of his lands may not be curtailed by unreasonable restrictions under the guise of police power. The owner will not be required to sacrifice his rights absent a substantial need for restrictions in the interest of public health, morals, safety or welfare. If the zoning restrictions exceeds the bounds of necessity for the public welfare, as, in our opinion, do the restrictions controverted here, they must be stricken as an unconstitutional invasion of property rights.’
“We hold that the zoning of appellants’ property is arbitrary and unreasonable and the same amounts to confiscatory regulation of appellants’ property.” (Citing numerous authorities; 206 So.2d at page 284; underlining added)
“Appellee also suggests that this Court should treat the residential zoning of appellants’ property as an exercise of the legislative authority of the city council, and that as such, it falls under the fairly debatable rule adhered to by this Court in the City of Miami v. Zorovich, Fla.App.1967, 195 So.2d 31. In that case, we held that zoning regulations which promote the integrity of a neighborhood and preserve its residential character are related to general welfare of the community and are a valid exercise of the legislative power. See also Parking Facilities, Inc. v. City of Miami Beach, Fla.1956, 88 So.2d 141; City of Miami Beach v. Wiesen, Fla.1956, 86 So.2d 422. The present case does not come within the bounds of this rule because the record clearly reveals that to change the residential zoning of appellants’ property will in no way act to destroy the integrity of a neighborhood. The character of the property has already been changed by other actions of the municipality. The zoning regulation in question, as applied to appellants’ property, is arbitrary and unreasonable and cannot be characterized as ‘fairly debatable.’ ” (206 So.2d at page 285)

As in the Kugel case, the arbitrary and unreasonable application of the zoning classification sought by appellants to be imposed on the subject property is not fairly debatable. The character of the subject property and other properties in the area have already been changed by other zoning actions of appellants, viz: the adjoining mobile home area, sewage treatment plant and sludge farm.

This point was emphasized in Metropolitan Dade County v. Pierce, Fla.App.3rd 1970, 236 So.2d 202, wherein the Appellate Court had occasion to consider a case wherein the Circuit Court had reversed an order of the zoning authority refusing to rezone a parcel of property to permit multiple family dwellings. The Appellate Court affirmed the lower court’s finding that the owners desired use was compatible with uses which the county had already permitted in the area and that denial of the application to rezone had no relationship to the public health, morals, safety or welfare of the community. The portion of the case which is peculiarly applicable to the case sub judice is that portion wherein the Appellate Court discusses the “fairly debatable” rule, the Court saying as follows :

“Since Village of Euclid v. Amber [Ambler] Realty Co., 272 U.S. 365, 47 Sup. Ct. 114, 71 L.Ed. 303 (1926), courts have applied the ‘fairly debatable’ rule to cases involving zoning matters. This rule is based on the predicate that legislative functions are to be performed by our legislative bodies and judicial functions are confined to the judiciary. The rule itself is clear, however, its application has often caused us difficulty. The Supreme Court of Florida has recently clarified its application. When the zoning authority itself has encroached upon its comprehensive zoning scheme it cannot be said to be ‘fairly debatable’ when property in the area is rezoned to a classification compatible with the area’s changed condition. City of Miami [Beach] v. Manilow, Fla., 226 So.2d 805 (1969), Case No. 37,929, opinion filed September 10, 1969.” (236 So.2d at pages 203 and 204)

The Third District Court of Appeal again considered a similar situation in Manilow v. City of Miami Beach, Fla. App.3rd 1968, 213 So,2d 589. There the Appellate Court discussed in lengthy detail the factual situation and then stated:

“The factual situation herein is quite similar to that of Kugel v. City of Miami Beach, Fla.App.1968, 206 So.2d 282, 284, 285, where this court stated that ‘the changes in the area have resulted in a large concentration of nonresidential activity in a residential area’ and ‘that the character of the property has already been changed by other actions of a municipality’. We will not add to this opinion with the other similarities in Kugel. The court therein held that ‘where changed conditions created a situation where the zoning of appellant’s property is so unreasonable as to constitute a taking of his property’, then the courts are justified in striking down the arbitrary zoning classification.” (Citing numerous cases; 213 So.2d at page 593; underlining added)
******
“The rationale applied in Kugel, supra, appears to be appropriate here. To deny the relief sought herein, as in Kugel, would constitute spot zoning in reverse. See Smith (& DeMaris Investing Co.) v. City of Miami Beach, Fla.App.1968, 213 So.2d 281.” (213 So.2d at page 593; underlining added)
******
The record reflects that plaintiff carried the burden of showing that this property was unsuitable for use under a single family residence classification and that it would be arbitrary and unreasonable to impose on this property a zoning classification more restrictive than RE multiple family zoning.” (213 So.2d at page 593; underlining added)

The reference to “spot zoning in reverse” reciting in Manilow and Kugel is applicable in the case sub judice. Reference to the physical location of the subject property readily reveals that were the zoning restrictions sought to be imposed by appellants to prevail the end result would be “spot zoning in reverse”.

As stated in Shearer v. Metropolitan Dade County, Fla.App.3rd 1966, 189 So.2d 501:

“* * * It is not the function of the court to rezone property, but it is our function, when facts and circumstances disclosed so prompt, to determine at what point zoning restrictions become arbitrary. Burritt v. Harris, supra. That point has been reached here. * * *” (189 So.2d at page 503)

In another case, City of Clearwater v. College Properties, Inc., Fla.App. 2nd 1970, 239 So.2d 515, the Appellate Court again affirmed the action of the- lower court quashing the city’s denial of plaintiff’s application for change of zoning and enjoining the city from enforcing its zoning regulation as applied to the plaintiff’s property. There the Court found that the property which was the subject of that suit was surrounded by other properties used or zoned for purposes compatible with the zoning sought, and that there was no demand for property in the area zoned in the manner that the subject property was then zoned, and further that the existing zoning had no reasonable relationship to public health, safety, morals or general welfare. The Court thereupon stated:

“In the case sub judice the block in which the subject property is situated is surrounded by B zoning, except for the narrow parkway strip to the east, and is similar to the ‘veritable island’ described in Tollius v. City of Miami, Fla.1957, 96 So.2d 122, where our Supreme Court held that the propriety of the restrictions on the use of the property was not ‘fairly debatable.’ Mr. Justice Thomas, speaking for the Court in that case, said:
‘There must be a substantial and reasonable relationship between the need for zoning restrictions and the public health, morals, safety or welfare to justify interference, by exercise of the police power, with an owner’s right to the enjoyment of his property. Only in the presence of such necessity will he be required to make a personal sacrifice for the good of the people. City of Miami Beach v. Lachmann, Fla., 71 So.2d 148.’
“In Burritt v. Harris, Fla.1965, 172 So.2d 820, as modified by City of St. Petersburg v. Aikin, Fla.1968, 217 So.2d 315, the Supreme Court said:
‘If the zoning restriction exceeds the bounds of necessity for the public welfare, as, in our opinion, do the restrictions controverted here, they must be stricken as an unconstitutional invasion of property rights.’ ” (citing numerous cases)
‘To deny the relief sought herein * * * would constitute spot zoning in reverse.’
“We hold that the property owners sustained the burden of showing that the zoning of the subject property is arbitrary and unreasonable, has no reasonably debatable relationship to the public health, safety or general welfare, and that their property should be rezoned for a use consistent with surrounding areas and circumstances.” (Citing numerous cases; 239 So.2d at pages 517 and 518)

Judge Johnson, speaking for this Court in William Murray Builders, Inc. v. City of Jacksonville, Fla.App. 1st 1971, 254 So.2d 364, succinctly summed up the law incident to zoning cases when he said:

“ * * * One’s right to devote his real estate to any legitimate use is properly within the protection of the Constitutions of the United States and Florida. Legislators may not, under the guise of the police power, impose restrictions which are unnecessary or unreasonable upon the use of private property or upon the pursuit of useful activities. State ex rel. Henry v. City of Miami, 117 Fla.594, 158 So. 82 (1934). An action imposing restrictions on private property must be kept within the limits of necessity for the public health, morals, safety or welfare, or it will be recognized as an unlawful taking. Hence, while it is not the function of a court to rezone property, it is pur function to determine at which point zoning restrictions become arbitrary. Burritt v. Harris, 172 So.2d 820 (Fla.1965).” (254 So.2d at page 366)

In summary, we find that the able and learned trial judge did not misapply the “fairly debatable rule” and that the final judgment here appealed is not only well grounded in the law, but also the evidence.

Affirmed.

McCORD and MILLS, JJ., concur.


author: McNULTY, Chief Judge. SCHWARTZ, ALAN R., Associate Judge

text:
    Agnes MASZEWSKI, Appellant, v. John PISKADLO, Appellee.
    No. 73-1018.
    District Court of Appeal of Florida, Second District.
    July 25, 1975.

      W. K. Zewadski of Zewadski & Smith, St. Petersburg, for appellant.
    Joan LoBianco Walker, St. Petersburg, for appellee.
   McNULTY, Chief Judge.

Appellant, an 83-year-old married woman, seeks enforcement of a contract under which she claims a right to reside in a house in which appellee, a 79-year-old widower, owns a life estate. The trial judge entered a final judgment on the pleadings in favor of defendant-appellee and this appeal ensued. We affirm.

The question herein is the enforceability of the alleged contract. The trial judge determined that it was unenforceable for three reasons. We need only consider one, however, that relating to the lack of mutuality of obligation.

The facts are these. In 1966 the appellant was “enticed,” it is said, by appellee and induced to leave her apartment and move in with him in a house which, at that time, he owned in fee simple. On April 19, 1967 appellee deeded fee simple title to appellant reserving a life estate. That deed was recorded on the same day. The parties continued living together until some time in 1970 when the relationship between them became strained. Sometime during that year appellant allegedly attempted to leave the premises but in a spirit of apparent reconciliation appellee requested that she remain. Illustrative of this reconciliation the “agreement” sued upon herein was entered into on the 4th day of June, 1970. The parties thereafter continued living as they had been until 1973 when appellee changed the locks and dispossessed appellant. This action followed.

The agreement sued on first recites the aforesaid deed of April 19, 1967 and recognizes the respective freehold interests of the parties. The provisions directly pertinent to this action then followed:

“It is mutually agreed by and between the parties hereto that during the remainder of their lifetimes, they shall live together in harmony in the above described residential premises. Neither shall have the right to dispossess the other from these premises.
“However, should either desire to separate, there shall he no inhibition against one of the parties on his or her own volition from separating from the other and leaving said premises.” (Italics ours.)

At first blush it might appear that this exchange of promises not to dispossess one another is sufficient consideration; but it’s illusory. To begin with, appellee gave up the right to dispossess appellant but appellant gave up nothing since, appellee being a life tenant, appellant couldn’t have dispossessed him in the first place. There was nothing, therefore, to support his promise.

Additionally, while appellant alleges in her complaint that in consideration for that promise on appellee’s part she forebore leaving the premises when she had a right to leave, she is estopped from establishing that fact under the parol evidence rule because she expressly reserved the right to leave at anytime under the terms of the written agreement she’s suing on. The sum total of the agreement, then, is that he can’t dispossess her but she is free to go at anytime. He has nothing to enforce.

We are of the opinion, therefore, and so hold, that the contract sued on is void for lack of mutuality of obligation and thus unenforceable. Accordingly, the judgment appealed from should be, and the same is hereby, affirmed.

HOBSON, J., concurs.

SCHWARTZ, ALAN R., Associate Judge, dissents with opinion.

SCHWARTZ, ALAN R., Associate Judge

(dissenting).

The plaintiff, an 83-year-old married lady, appeals from a final judgment on the pleadings rendered against her in an action for the alleged breach of a 1970 written contract between her and the defendant, a 79-year-old widower, under which he agreed to permit her to live in a house in which he retained a life estate, after his having deeded the fee to her.

The complaint affirmatively alleged that the consideration for the contract consisted of the plaintiff’s agreement, at the defendant’s request, not to leave the home in which they had been residing together since 1966. The contract provided that the parties were to live in harmony together there for the remainder of their joint lifetimes, and that neither could dispossess the other. However, it was alleged that Mr. Piskadlo had breached the agreement in 1973 by evicting Mrs. Maszewski from the premises.

After the defendant answered, denying most of the allegations of the complaint and raising what were characterized in the pleadings as “affirmative defenses” to the effect that a) the contract was void for lack of consideration; b) it was unenforceable as illegal and contrary to public policy and c) the defendant had the right to occupy the premises pursuant to his retained life estate, he moved for judgment on the pleadings in his favor. The trial judge granted the motion and entered judgment upon three separate grounds: 1) that the contract provided merely for a “mutual exchange of love and affection and is devoid of any contractural relationship enforceable in a court of law;” 2) that since it provided for the cohabitation of a married woman and an unmarried man it violated “the public policy of this State and [was] therefore void and unenforceable” and 3) that the plaintiff’s failure to file a reply to the “affirmative defenses” under Rule 1.110(e), Fla.Rules Civ.Proc., resulted in their having been admitted. I would hold that none of the assigned grounds justifies the determination below and, therefore, would reverse the judgment for determination of the case after a trial on the merits of the issues presented.

On a motion for judgment on the pleadings under Rule 1.140(c) the truth of the allegations of the party opposing the motion, in this case, the plaintiff’s complaint, must be assumed, Pelle v. Gluckman, Fla.App.3d 1972, 269 So.2d 33, 34. Statements in the pleading of the movant, here, the answer, are deemed to be untrue. City of Pompano Beach v. Oltman, Fla.App.4th 1969, 228 So.2d 610. The essential question before us, then, is whether the complaint states a cause of action for the relief sought against the defendant, Butts v. State Farm Mut. Auto Ins. Co., Fla.App.3d 1968, 207 So.2d 73. Applying these tests, it seems clear that an action upon the contract involved here is, on the face of the pleadings, barred neither by lack of consideration nor by its alleged violation of the public policy of the State, as statutorily or judicially expressed.

As has been pointed out, the complaint (perhaps unnecessarily, since lack of consideration is an affirmative defense which should be raised in the answer under Rule 1.110(d), Biro v. Geiser, Fla.1967, 199 So.2d 461), specifically states the consideration allegedly involved, the plaintiff’s agreement not to do what she had a legal right to do — move out of the home at the time of the parties’ agreement. There can be no doubt that this “forebearance,” undertaken at the defendant’s request and for his benefit, constitutes a legally cognizable consideration for the defendant’s promise, in return, not later to kick the plaintiff out of the home against her will during their mutual lifetimes. Boymer v. Birmelin, Fla.App.3d 1969, 227 So.2d 358, 362, and cases and authorities cited; Valparaiso v. Long, Fla.App.1st 1962, 141 So.2d 334; State v. Lum, 95 Conn. 199, 111 A. 190 (1920). The fact that the terms of the contract itself do not recite this claimed consideration is immaterial; there is no requirement that they do. 1 Corbin on Contracts, 2d ed. 1963, § 120, p. 517.

I cannot agree with- the Court’s conclusion that the parol evidence rule precludes the plaintiff from demonstrating that this consideration existed. Mrs. Maszewski’s forebearance, which allegedly preceded and induced the agreement, is not at all inconsistent with or contrary to its express terms. Since this is true, as the Court said in Asphalt Paving, Inc. v. Ulery, Fla.App. 1st 1963, 149 So.2d 370, 377:

“Parol evidence of such a transaction is admissible, even when it shows a different consideration than that recited in an instrument. See 1 Restatement of Contracts, Sec. 82, page 93.”

Accord: Mallard v. Ewing, 121 Fla. 654, 164 So. 674 (1936); Jackson v. Parker, 153 Fla. 622, 15 So.2d 451 (1943); Paradise Beach Homes, Inc. v. South Atlantic Lumber Co., Fla.App.1st 1960, 118 So.2d 825, 827; Wise v. Quina, Fla.App.1st 1965, 174 So.2d 590, 596-597.

Nor does it affirmatively appear that the contract is an unlawful one. It is well-established that courts will not, unless the contrary dearly appears, presume that apparently proper agreements are either entered into for illegal or immoral purposes or are to be performed in that manner. E. g. Diversified Enterprises, Inc. v. West, Fla.App.2d 1962, 141 So.2d 27; Cunningham v. Weatherford, 159 Fla. 864, 32 So.2d 913 (1947); Inter-Continental Promotions, Inc. v. MacDonald, 5 Cir. 1966, 367 F.2d 293, 301-303. Without in any way deprecating the hopeful and encouraging results of recent investigations into “sex and the senior citizen,” it certainly cannot be said the contract between these parties necessarily, as the answer claims, requires a violation of F.S. § 798.01 which forbids living in an open state of adultery, but the violation of which requires not only that the parties share the same home, but that they engage in acts of intercourse as well. Grice v. State, 75 Fla. 751, 78 So. 984 (1918); see especially Cunningham v. Weatherford, supra, in which the Supreme Court refused to presume that a 76-year-old man had improper purposes in mind when he agreed to pay a youthful lady $20,000 at his death in return for living in his home and caring for him while he lived.

The appellee also argues that the contract is unenforceable as one in derogation of the marriage between Mrs. Maszewski and her husband. It is contended that her going to live permanently with Mr. Piskad-lo would inevitably result in. her marriage with Mr. Maszewski being or becoming “irretrievably broken.” F.S. § 61.052 (l)(a). We may assume that the public policy of the State, which favors marriage and which is expressed through judicial decisions which refuse to enforce agreements which facilitate divorce or which impair the security of the marriage relation, see Frohock v. Frohock, 117 Fla. 603, 158 So. 106 (1934); Posner v. Posner, Fla.1970, 233 So.2d 381; Simpson, Law Of Contracts, § 218, p. 445, is just as viable even though divorce is now dissolution and even though only the irretrievably broken nature of the marriage is now pertinent. But there is nothing on the face of these pleadings which requires a determination that this contract would promote the dissolution of the Maszewskis’ marriage. It may be — in fact it seems more than possible — that the marriage was already irretrievably broken at the time that the plaintiff made her agreement; it may be that the agreement had no effect upon .her relationship with her husband or their willingness or desire to remain married. The point is that the issues will have to await proof as to the particular effect of the alleged agreement upon the particular relationships between and among these particular persons. It was improper to assume the worst as a matter of law and resolve the question of unenforceability upon the face of the pleadings alone.

Finally, the plaintiff’s failure to “reply” to the defendant’s self-styled “affirmative defenses” makes no difference. The “defenses” were not sought to be “avoided” but were rather “denied” by the plaintiff —in the case of lack of consideration, by specific anticipatory allegations in the complaint. Thus the terms of the archaically phrased rule in question, Rule 1.110(e), which requires a reply only in the case of “avoidance” never came into play. Moore Meats, Inc. v. Strawn, Fla., 1975, 313 So.2d 660, see Trawick, To Reply or Not to Reply, Fla.Bar Journal 702 (Dec.1973).

      . We footnote here the distinction between establishing consideration by parol and modifying or contradicting the terms of a written instrument by parol. Consideration may be established by parol, of course; but if the written instrument expressly speaks to consideration or any facet of its parol is inadmissible to contravene it. See, e. g., 13 Fla. Jur. Evidence §§ 395-6.

      . It will come as no surprise to a student of the appellate process, who has the time and energy to read this opinion and note its length and tone, for the author to reveal that it was originally prepared as an opinion for the Court. Subsequently, “we hold” was changed to “I would holdand an additional paragraph was added to rebut the basis of the majority opinion — thus does a noble contribution to the law of Florida fade into an unheeded cry from the wilderness.