author: PER CURIAM.

text:
    Abe SCHONFELD et ux., Appellants, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 77-591.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied June 2, 1978.
    Milton Kelner, Miami, for appellants.
    Stuart L. Simon, County Atty., and R. A. Cuevas, Jr., Asst. County Atty., for appel-lee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Northcutt v. State Road Dept., 209 So.2d 710 (Fla. 3d DCA 1968).


source: Caselaw Access Project

author: KEHOE, Judge.

license: Public Domain

text:
    Willie Jean FERRELL, Appellant, v. The STATE of Florida, Appellee.
    No. 77-666.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied June 2, 1978.

      Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant was charged by an information and convicted for committing an aggravated battery and for the unlawful possession of a firearm while engaged in a criminal offense, i. e., the aggravated battery. Pursuant to the jury’s verdict, the trial court entered its judgment of conviction and imposed the sentence which appellant now appeals.

In the trial court, appellant unsuccessfully moved to dismiss the information on the ground that it charged her with an aggravated battery, but neglected to include the essential elements of a battery. Appellant contends that such neglect resulted in the failure to charge her with a criminal offense under the laws of Florida. Appellant argues that, because of such failure, the trial court erred in not granting her motion to dismiss the information.

Our review of the record and the information compel us to agree with appellant’s contention. Count II of the information reads as follows:

“And RICHARD E. GERSTEIN, State Attorney of the Eleventh Judicial Circuit of Florida, prosecuting for the State of Florida, in the County of Dade, under oath, further information makes that, WILLIE JEAN FERRELL on the 27th day of MAY, 1976, in the County and State aforesaid, did unlawfully commit an aggravated battery upon NEIL McLEOD and in commission of said aggravated battery, did use a deadly weapon, to-wit: A PISTOL, in violation of 784.045(l)(b) Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.”

Because the information failed to affirmatively allege the essential elements of an aggravated battery, i. e., by failing to include the essential elements of a battery, it was reversible error for the trial court to deny her motion to dismiss the information. See, State v. Beasley, 317 So.2d 750 (Fla.1975); Gibbs v. Mayo, 81 So.2d 739 (Fla.1955); Dowling v. State, 98 Fla. 523, 124 So. 12 (1929); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971); and Fla.R.Crim.P. 3.140(b) and 3.140(d)(1). We note that, in the instant case, the charge of the unlawful possession of a firearm while engaged in a criminal offense must stand or fall in conjunction with the aggravated battery charge. Because the latter fell, so must the former. Accordingly, the judgment of conviction and sentence appealed are reversed.

Reversed.


text:
    Edward LUSTIG, Appellant, v. Kenneth N. McCORMICK, Sekinger and Puento-Duanty, P.A., a Florida Corporation, Appellees.
    No. 77-763.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied June 2, 1978.

      Samuel Sheradsky, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard Sherman, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

This is an appeal by the plaintiff from an order dismissing his complaint seeking recovery for medical malpractice. The trial judge set out the facts, which are not disputed on appeal:

“It appears without dispute the Medical Mediation case was filed on September 27, 1975. No order extending the time for hearing on the claim was ever entered, hence under Section 768.44(3), F.S. jurisdiction of the mediation panel terminated 120 days from September 27, 1975. Even if it be assumed an extension in fact had been granted, by reason of the acts of the parties in continuing discovery measures beyond the 120 days, the hearing on the claim could not be held beyond 10 months from the date the claim was filed; that is, July 27,1976. Section 768.-44(3), F.S.
“For some unexplained reason, the Clerk of Court filed a ‘termination of Mediation Panel’ certificate on December 9, 1976, terminating the proceeding because of the time lapse. This complaint was thereafter filed on February 2, 1977, which date is more than 60 days from the expiration of 10 months from the date upon which the claim was filed, but less than 60 days from the date the Clerk issued the Termination of Mediation Panel certificate.
“Section 768.44(4), F.S. states ‘The filing of the claim shall toll any applicable statute of limitations ... In any event a party shall have 60 days from the date the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is otherwise terminated in which to file a complaint in circuit court.’ The plaintiff contends the applicable date from which the 60 day filing must be calculated is the date of the Clerk’s certificate. The statute does not say so — it refers to ‘the date on which the jurisdiction of the panel is otherwise terminated . . . ’, and this, in turn, is defined as no more than 10 months from the date the claim is filed.”

Appellant argues that the provisions of the “Medical Liability Mediation Panels” law, Section 768.44, Florida Statutes (1976 Supp.), were not meant to shorten the general statute of limitations, Section 95.11, Florida Statutes (1975). The trial court’s order shows that this argument was not presented to the trial court. Nevertheless, because of the possibility of fundamental error, we have considered the argument, but find it does not affect the decision in this case. The complaint alleging a wrong diagnosis was made in May of 1973, and it became known through a later diagnosis by another doctor, made on October 15, 1973. The two-year statute of limitations commences to run when the wrongful act occurs or when it becomes known or should have become known. Giving the claimant the benefit of the later date of October 15, 1973, the statute commenced to run on that date.

The medical ■ malpractice claim was not filed until September 27, 1975, which was 18 days before the two-year statute of limitations would have run. As found by the trial court, there was no order of extension, by reason of which it could be considered the jurisdiction of the panel ended after 120 days, and obviously jurisdiction ended according to the statute when there was no hearing on the merits within ten months. Giving the claimant the benefit of tolling the statute for that ten month period, the termination of jurisdiction date of July 27, 1975, left the same eighteen days of the two-year statute of limitations which remained prior to the tolling of the statute.

Thus, action at law could have been filed within eighteen days after July 27,1975, or, as provided in the mediation statute, within sixty days from the termination of jurisdiction, notwithstanding the statute would run in eighteen days.

The action at law was not filed until February, 1977, obviously after the statute of limitations had run and after the special sixty days had run.

Affirmed.


author: PER CURIAM. HUBBART, Judge

text:
    John Carmen ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1924.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied June 2, 1978.
    Joseph Mincberg, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Janet Reno, State’s Atty. and Paul M. Rashkind, Asst. State’s Atty., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. In my view, the appellant herein has met all the necessary prerequisites to seal from public view the court and police records relating to consolidated case # 73-5869 in the Circuit Court for the Eleventh Judicial Circuit of Florida under Section 901.33, Florida Statutes (1977), as interpreted in Johnson v. State, 336 So.2d 93 (Fla.1976), and implemented by Fla.R.Crim.P. 3.692. No valid reason has been advanced either in the trial court or this court for denying the appellant’s motion to so seal such records. The order appealed from which denies such motion should therefore be reversed.


author: RYDER, Judge.

text:
    The CITY OF DUNEDIN, Florida, a Municipal Corporation, Appellant, v. CONTRACTORS AND BUILDERS ASSOCIATION OF PINELLAS COUNTY etc., et al., Appellees.
    No. 77-1110.
    District Court of Appeal of Florida, Second District.
    May 5, 1978.

      C. Allen Watts of Fogle, Watts, Biernacki & Fogle, P. A., DeLand, for appellant.
    John T. Allen, Jr., P. A., St. Petersburg, for appellees.
   RYDER, Judge.

We are revisited by adversaries in a case involving the authority of a municipality to charge a so-called “impact fee” for the privilege of connecting to its water and sewer systems. This time, the issue is whether appellees are entitled to refund of impact fees previously paid under protest to the City of Dunedin.

In City of Dunedin v. Contractors and Builders Association of Pinellas County, 312 So.2d 763 (Fla.2d DCA 1975), we reversed the judgment of the trial court and held certain ordinances adopted by Dunedin in 1972 which imposed “impact fees” valid and enforceable. A properly drafted impact fee ordinance is lawful and not an unauthorized tax. We, however, were concerned by the fact that the terms of the City’s ordinances did not unequivocally mandate the use of the funds for capital improvements of the water and sewer systems, but nevertheless opined the ordinance was valid since the City had in fact earmarked the proceeds for capital improvements to the systems as a whole. Thereafter, we certified the matter to the Supreme Court as one of great public interest.

The Supreme Court, in Contractors and Builders Association of Pinellas County v. City of Dunedin, 329 So.2d 314 (Fla.1976), agreed, in general, with this court’s reasoning regarding the validity of imposing impact fees, but held the Dunedin ordinances defective for failure to spell out necessary restrictions on the use of fees collected. Thus, the Supreme Court quashed this court’s opinion and remanded the matter to the trial court for further proceedings consistent with its opinion.

While the prior appeal was pending, the City of Dunedin had enacted Ordinance No. 74-19. Ordinance 74-19 provided that the proceeds accumulated by the fees can be used only for the expansion of the water or sewer system and trust funds were established therefor. After remand, the City enacted Ordinance No. 76-19. Ordinance 76-19 provided that the use of any funds previously collected under the 1972 Ordinances is restricted to extension or construction of new additions to the treatment plant and systems so as to meet the increased demand which additional connections to the system create.

Also during the appeal of this case, due to the dire need for sewer and water system expansion, the City of Dunedin engaged in the issuance of bonds in 1974 for enlargement of the City’s sewer and water system. However, the disputed impact fees still remain in escrow and have not been spent.

After remand from the Supreme Court, the trial court conducted proceedings. A motion for summary judgment by the City of Dunedin on the basis of these ordinances was denied. The trial court held an eviden-tiary hearing and subsequently entered its supplemental judgment in which it declared Ordinances 74-19 and 76-19 “legally sufficient to permit the imposition and collection of an impact fee.” However, the trial court also stated that the enactment of Ordinances 74-19 and 76-19 “could not justify denying appellees their right to a refund of the impact fees they had previously paid under protest. For authority, the trial court cited Forbes Pioneer Boat Line v. Board of Commissioners, 258 U.S. 338, 42 S.Ct. 325, 66 L.Ed. 647 (1921).

Further, the trial court wrote in its supplemental judgment that “though not necessary, it is appropriate to pass upon one other issue raised by the parties” and made the finding that all of the improvements for which the impact fees in issue were collected are now in existence and are being paid from the proceeds of the bond issue floated by the City in 1974. This appeal ensues.

There is no question that a municipality may now impose “impact fees.” The only question we have before us now is whether or not those appellees who paid impact fees under protest are entitled to a refund.

The supreme court’s decision in Contractors, supra, is the law of the case. Consequently, we affirm that portion of the judgment finding the ordinances legally sufficient to permit the City to impose and collect impact fees; however, we reverse that portion of the judgment which orders a refund of impact fees paid under protest.

The Forbes case, is inapplicable to the case sub judice. The Forbes case involved the unlawful exaction of tolls by a drainage district from persons utilizing the lock of a canal. As the litigation to recover the fees so collected progressed, the Florida Legislature passed an act that purported to validate their collection. However, the United States Supreme Court held that ratification of an act is not good if attempted at a time when the ratifying authority could not do the act. In other words, the drainage district was without authority to exact a charge for the passage of the plaintiff’s boat through the canal, and the United States Supreme Court held that the authority could not be later conferred retroactively by the State Legislature so as to permit the drainage district to keep the charge exacted from plaintiff.

On the contrary, in instant case the City of Dunedin initially had the authority to exact an impact fee and, further, we are very much persuaded by the words of Mr. Justice Hatchett in Contractors, supra, wherein he wrote “ . . . Nothing we decide, however, prevents Dunedin from adopting another sewer connection charge ordinance, incorporating appropriate restrictions on use of the revenues it produces. Dunedin is at liberty, moreover, to adopt an ordinance restricting the use of moneys already collected. We pretermit any discussion of refunds for that reason.” [Emphasis ours] 329 So.2d 314 at 322.

The very question of refunds was before the Florida Supreme Court at the time it issued its decision. Had the Supreme Court wished to order a refund of these impact fees to appellees then, it would have done so at that time. However, it pretermited this question to allow the City to adopt an ordinance restricting the use of the moneys already collected. Although Mr. Justice Hatchett also indicated that during the trial court’s consideration de novo of the question of refunds the chancellor was at liberty to take into account all pertinent developments since entry of his original decree, we are of the opinion that the City has followed the directions of the supreme court explicitly. It has specifically earmarked the impact funds for the water and sewer system expansion. Those funds may now be used for the purposes of further expansion or retiring bonds issued for the earlier [post-1974] expansion of the system.

Consequently, that portion of the chancellor’s supplemental judgment ordering the return of the fees to those persons paying under protest is REVERSED.

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


text:
    James C. PELEKIS, Gus G. Pelekis and John S. Moraites, Individually and as Trustees of the Demetrius Constantine Pelekis, Foundation, Appellants, v. FLORIDA KEYS BOYS CLUB, INC., et al., Appellees.
    Nos. 76-2348 and 76-2349.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 2, 1978.
    Alfred Gustinger, Jr., Miami, for appellants.
    Edward C. Vining, Jr., Miami, for appel-lees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

James C. Pelekis, Gus G. Pelekis and John S.Moraites appeal an order denying their petition to set aside the final judgment pursuant to Fla.R.Civ.P. 1.540(b). This case has had an extensive history. This action originated with a complaint filed in 1971 by the appellee, Florida Keys Boys Club, Inc., to quiet title in certain property allegedly conveyed to it by Pelekis in 1969. Pelekis counterclaimed and joined J. Bruce Vining and others, denying that he signed any deed to real property conveying title to the Florida Keys Boys Club, and further contending that if he had executed such a document, his signature on it had been fraudulently obtained.

After extensive discovery and much legal sparring among the parties, the ultimate deciding issue became whether or not the signature on the 1969 warranty deed, which purportedly conveyed the subject property to the Florida Keys Boys Club was, in fact, the signature of Pelekis or whether the deed was a forgery and, therefore, of no force or effect. In 1973, the trial court, after an extensive hearing, entered a final judgment adverse to the appellants and quieted title to the Florida Keys Boys Club’s property. The trial court also dismissed appellants’ counterclaim. No appeal was prosecuted from this judgment.

In 1974, appellants filed a motion to vacate judgment alleging that the judgment quieting title should be vacated because (1) newly discovered evidence obtained by means of an ultra-violet examination of the deed justified reopening the case and (2) the witnesses’ signatures on the deed were fraudulently signed by the same person (i. e., Vining), thereby voiding the legal effect of the deed.

The trial court held a hearing on the motion to vacate the final judgment and entered an order denying the motion. The appellants appealed this order on the grounds that the trial court denied a request to depose Vining and his secretary and to compel them to produce exemplars of their handwriting for analysis. This court reversed and remanded the case to permit full discovery and in order to conduct a new evidentiary hearing on the motion to vacate. Pelekis v. Florida Keys Boys Club, 302 So.2d 447 (Fla. 3d DCA 1974).

Upon remand, the trial court entered an order requiring Vining to make available for examination copies of his handwriting. An interlocutory appeal was taken from this order concerning the scope of discovery. This court treated the appeal as a petition for writ of certiorari and held that the rules of discovery did not authorize the procedure employed by the trial court. It quashed the order with directions to the trial court. Florida Keys Boys Club, Inc. v. Pelekis, 327 So.2d 804 (Fla. 3d DCA 1976).

Finally, after a four day hearing on the merits, the trial court again entered an order denying the motion to vacate the final judgment. Appellants now appeal this order.

The appellants contend that the trial court abused its discretion in failing to vacate the final judgment in that the evidence presented clearly established fraud on the part of the appellees and the finding of the trial court was, therefore, against the manifest weight of the evidence.

Neither party has been able to cite to the court a reported case in which the standard of proof necessary for the establishment of fraud in a prior final judgment has been discussed. From a reading of the rule itself, providing that “. . . the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;” we conclude that the determination of fraud rests largely on the conscience of the trial court. See Hartley v. Hartley, 134 So.2d 281 (Fla. 2d DCA 1961). The Florida Rules of Criminal Procedure provide a somewhat analogous rule. See Fla.R.Crim.P. 3.850. The cases decided pursuant to motions to vacate hold that after conducting a full evidentiary hearing, as was done in this case, the trial court will not be reversed upon its determination that the judgment should not be set aside, unless the proof is at least by a preponderance or greater weight of the evidence. See Pender v. Hatcher, 303 So.2d 427 (Fla. 2d DCA 1974). This test is in keeping with the rule that proof of fraud, under our rules consolidating law and equity, should be by the greater weight of the evidence, which Standard Jury Instruction 3.9 defines as by “the more persuasive and convincing force and effect of the entire evidence in the case.” See Rigot v. Bucci, 245 So.2d 51 (Fla.1971). Therefore, we conclude that it is necessary in our review of the record to determine whether or not the evidence before the court can be said to be “by the greater weight of the evidence.” Although the appellants’ evidence before the trial court tended to support their allegations, the ap-pellees produced evidence which, if believed by the court, would constitute competent and substantial evidence upon which to deny the motion. It is not our function as an appellate court to substitute our judgment upon the totality of the evidence for that of the trial court. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Cherney v. Cherney, 146 So.2d 914 (Fla. 3d DCA 1962); and Coulter v. Coulter, 97 So.2d 152 (Fla. 1st DCA 1957). This is not to say that in a proper ease it may not be found that the evidence is so strong that the trial court may be found in error upon its denial of the motion; but in this instance, it is sufficient to say that the record does not present such a case.

The appellees have presented cross-assignments of error which are not necessary to consider in the light of our holding. Accordingly, the order of the trial judge is affirmed.

Affirmed.


text:
    MAISON GRANDE CONDOMINIUM ASSOCIATION, INC., etc., Appellant, v. DORTEN, INC., a Florida Corp., Robert L. Siegel, etc., Appellees. DORTEN, INC., a Florida Corp., Robert L. Siegel, etc., Appellants, v. MAISON GRANDE CONDOMINIUM ASSOCIATION, INC., etc., Appellee.
    Nos. 77-493 and 77-1541.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 2, 1978.
    Smith, Mandler, Smith, Werner & Jaco-bowitz and Patricia M. Silver, Miami Beach, for appellants.
    Schwartz, Klein & Steinhardt, Miami, Conboy, Hewitt, O’Brien & Boardman, New York City, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

These consolidated appeals are brought from a final judgment dated February 17, 1977, and an order allowing interest and denying attorney’s fees dated June 15,1977, entered by the trial court. Both the final judgment and the order appealed are affirmed.

It is axiomatic that an order or judgment of the trial court is generally presumed to be correct. A corollary to the presumption of correctness of the trial court’s decision is, of course, the rule as to the burden of showing error. The one who asserts error has the burden of showing it. Such a burden has been spoken of as a duty. It can be met only by making reversible error clearly, definitely, and fully appear. Failure to meet the burden impels the conclusion that there is no error in the record, and that the order or judgment must be affirmed.

In the light of these and the other controlling principles of law, we have carefully reviewed the entire record, studied the briefs of the parties, and listened to the oral arguments of counsel. This consideration has led us to the conclusion that the parties have failed to carry their burden of demonstrating any error. Accordingly, the final judgment and order appealed are affirmed.

Affirmed.


text:
    Raymond PRIETO, Jr., Appellant, v. CONTINENTAL INSURANCE COMPANY, Appellee.
    No. 77-913.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 2, 1978.

      Richard Kanner, Greene & Cooper, Miami, for appellant.
    Thornton, Conroy & Herndon, Miami, for appellee.
    Haddad & Josephs, Miami, on behalf of plaintiffs Committee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an order dated March 30, 1977, entered by the trial court granting summary final judgment in favor of appellee, defendant below. For the reasons set forth below, the order is affirmed.

On July 24, 1975, appellant filed a complaint for a declaratory decree seeking a determination by the trial court that appel-lee was obligated to defend him, under a policy of insurance issued to appellant by appellee, against multiple claims for injuries and damages arising out of the collapse of the Drug Enforcement Building in Miami, Florida, in August of 1974. Appellee filed an answer raising, among other things, the defense that it was not obligated to defend appellant because of the completed operations exclusion provision of the policy. Subsequently, appellant filed a motion for summary judgment, and appellee filed a cross-motion for summary judgment. During these proceedings, a Plaintiff’s Committee, representing numerous plaintiffs seeking recovery against appellant, was allowed to intervene in the cause. The Plaintiff’s Committee, with our leave, also intervened in this appeal. After a hearing on appellant’s and appellee’s motions for summary judgment, the trial court on March 30,1977, entered an order granting summary final judgment in favor of appellee. From that order, this appeal was taken.

The relevant portions of the trial court’s order reads as follows:

“THIS CAUSE having come on to be heard before me upon the Motion of the Defendant, CONTINENTAL INSURANCE COMPANY for Summary Judgment and the Court, having heard the argument of counsel, having read the Memoranda of Law submitted, having reviewed the record, exhibits, and the complaint filed herein, and being otherwise advised in the premises herein, it is, “ORDERED AND ADJUDGED that the Defendant, CONTINENTAL INSURANCE COMPANY’S Motion for Summary Judgment be, and the same is hereby granted and Summary Final Judgment be, and the same is hereby entered in favor of CONTINENTAL INSURANCE COMPANY who shall go hence without day but to have and receive its lawful costs to be hereinafter taxed upon proper Motion and affidavit and against the Plaintiff, RAYMOND PRIETO, JR. who shall take nothing by his suit herein. This Court’s ruling is based upon the ground that there is no genuine issue as to any material fact and the Movant, CONTINENTAL INSURANCE COMPANY is entitled to Summary Final Judgment as a matter of law. Additionally, the Court holds as follows:
“1. There is no genuine issue with respect to the fact that the negligence acts, occurrences, and omissions, if any, of RAYMOND PRIETO, JR. constituted a ‘completed operation’ as that term is defined by the policy of insurance issued by CONTINENTAL INSURANCE COMPANY TO RAYMOND PRIETO, JR.
“2. The completed operations exclusion of the policy of insurance issued by CONTINENTAL INSURANCE COMPANY to RAYMOND PRIETO, JR., is unambiguous, clear and enforceable; and, as such, is distinguishable in its language and syntax from the policies involved in the cases cited to this Court in opposition to the Motion.
“3. As a consequence, the policy of insurance issued by CONTINENTAL INSURANCE COMPANY to RAYMOND PRIETO, JR. provided no liability insurance coverage for RAYMOND PRIETO, JR. and/of RPS CORPORATION, for any and all claims against RAYMOND PRIE-TO, JR. and/or RPS CORPORATION arising out of the ‘building collapse cases’ which are the subject matter of the instant litigation.”

Appellant concedes that there are no factual issues in dispute. However, he contends that the trial court erred in granting summary judgment in favor of appellee because the policy exclusion for completed operations was not applicable and, therefore, appellee had a duty to defend him under the contract.

The Plaintiff’s Committee contends, basically, that the trial court erred in entering the summary final judgment as follows: (1) by finding that the policy provided no coverage when the issue was not raised by any of the pleadings in the case; (2) by finding that appellee had no duty to defend any of the allegations made against appellant; and (3) by determining that the policy did not provide coverage to appellant.

The Plaintiff’s Committee’s first point on appeal is without merit. The Plaintiff’s Committee argues that, because appellant’s complaint sought only declaratory relief in regard to the question of appel-lee’s duty to defend, the trial court improperly found that there was no coverage under the policy and, therefore, no duty to defend. The record reflects that the Plaintiff’s Committee was an intervenor in the action below at the time of the hearing on appellant’s and appellee’s motions for summary judgment. The record also shows that there was no misunderstanding or mistake among the parties in regard to the issues raised and those litigated by these motions at the hearing. In our opinion, the issue of the duty to defend was so inextricably interwoven with the question of coverage under the policy that the determination of one necessarily required the determination of the other. Further, we feel that both of these questions were properly raised by the pleadings, etc., before the trial court at the time it ruled on the motions for summary judgment. This opinion is enhanced by our reading of Section 86.011, Florida Statutes (1975), pertaining to the trial court’s jurisdiction to determine the rights, status, and legal relations between the parties in a declaratory judgment action such as this one. See Cruger v. Allstate Insurance Company, 162 So.2d 690 (Fla. 3d DCA 1964).

We also hold that the Plaintiff’s Committee’s third point on appeal, along with appellant’s point on appeal, is without merit. Appellant and the Plaintiff’s Committee argue that the completed operations exclusion provision of the policy was ambiguous, inapplicable, and unenforceable. In support of this proposition, they rely heavily upon Nixon v. United States Fidelity and Guaranty Company, 290 So.2d 26 (Fla.1973), for support. However, we agree with the trial court’s finding, set forth above, that the ambiguous language of the policy exclusions found unenforceable in those cases is not present in the instant case. In the recent case of Sandpiper Construction Company, Inc., v. United States Fidelity and Guaranty Company, 348 So.2d 379 (Fla. 2d DCA 1977), our sister court had before it a similar issue involving nearly the identical policy language providing an exclusion for completed operations. In reaching a decision in Sandpiper, the Second District Court of Appeal, at 380-81, held that such language was not ambiguous and unenforceable. We agree with the decision in Sandpiper, and hold that, in the instant case, the contentious language of the policy provision providing an exclusion for completed operations is not ambiguous and unenforceable. Based on the language used, appellant should have reasonably known that he was not buying coverage for his completed operations when he purchased the policy. See Security Insurance Company of Hartford v. Kaye Milling Supply, Inc., 297 Minn. 348, 211 N.W.2d 519 (1973).

Accordingly, the trial court was correct in finding that the completed operations exclusion provision of the policy was applicable and that, because there was no coverage under the policy, appellee was under no duty to defend appellant. Furthermore, because there existed no genuine issues of any material fact and appellee was entitled to a judgment as a matter of law, the trial court did not err in granting summary final judgment in favor of appellee.

Appellant’s second point on appeal is also without merit. Because of the completed operations exclusion provision in the policy between appellant and appellee, there was no duty on the part of appellee to defend against any of the allegations in the various complaints.

Affirmed.

      . Also, cited in support of this proposition are Aetna Insurance Company v. Stevens, 229 So.2d 601 (Fla. 2d DCA 1969); Miller Electric Company of Florida v. Employers’ Liability Assurance Corporation, 171 So.2d 40 (Fla. 1st DCA 1965); and New Amsterdam Casualty Company v. Addison, 169 So.2d 877 (Fla. 2d DCA 1964).


text:
    Iris R. KRISCHER, Appellant, v. Kenneth N. KRISCHER, Appellee.
    No. 77-2123.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 2, 1978.

      Sandler & Sandler and Arthur S. Weitz-ner, Miami, for appellant.
    Martin M. Dernis and Edward S. Polk, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, plaintiff below, brings this interlocutory appeal from an order entered by the trial court modifying a divorce judgment by increasing the amount of her alimony, but denying her motion for an increase in child support and denying her application for allowance of attorney’s fees and costs.

Appellant, contends among other things, that the trial court abused its discretion by denying her an increase in child support payments and by failing to adequately increase the amount of her alimony payments.

In our opinion, the record reflects substantial competent evidence upon which the trial court could have properly denied appellant an increase in her child support payments and upon which it could have properly increased, by the amount which it did, her alimony payments. Reversal of those portions of the trial court’s order denying appellant an increase in child support and allowing her an increase in alimony would require our revaluation of the evidence and testimony, and the substitution of our judgment for that of the trial court. This we are not permitted to do. See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Appellant’s other points on appeal are without merit. Accordingly, the order appealed is affirmed.

Affirmed.

CHARLES CARROLL (Ret.), Associate Judge, dissents.


author: HOBSON, Acting Chief Judge.

text:
    Delmer SARGENT, Appellant, v. MIDLANTIC NATIONAL BANK, a National Banking Corporation, Appellee.
    No. 77-1778.
    District Court of Appeal of Florida, Second District.
    May 12, 1978.

      Owen L. Luckey, Jr. of Luckey & Harrell, Labelle, for appellant.
    R. Thomas Corbin of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, for appellee.
   HOBSON, Acting Chief Judge.

Appellant appeals a final judgment awarding damages to appellee in this suit for conversion. Appellee cross-appeals the denial of interest from the date of conversion to the date of judgment.

We affirm the judgment, but remand this cause for the purpose of amending the final judgment to include interest thereon from the date of conversion to the date of the judgment. Gillette v. Stapleton, 336 So.2d 1226 (Fla. 2d DCA 1976).

GRIMES and SCHEB, JJ., concur.


author: McCORD, Chief Judge.

text:
    Phyllis Walz HARBIN, Appellant, v. STATE of Florida, Appellee.
    No. HH-118.
    District Court of Appeal of Florida, First District.
    May 16, 1978.
    Rehearing Denied June 8, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   McCORD, Chief Judge.

Appellant, convicted below of disorderly conduct and resisting arrest with violence, disputes here the legality of her arrest for disorderly conduct. The record reveals that the arrest took place when appellant began cursing a Gadsden County Deputy Sheriff who had been sent to accompany appellant’s husband to the couple’s trailer while he picked up his clothes after a domestic dispute. Appellant contends that her “mere words” were not sufficient to justify a disorderly conduct arrest under the latest Florida Supreme Court decisions construing § 877.03, Florida Statutes (1975).

In White v. State, 330 So.2d 3 (Fla.1976), the Florida Supreme Court upheld the constitutionality of the disorderly conduct statute with the following limiting construction:

“We hold that mere words, used as a tool of communication, are constitutionally protected. The protection fails only when 1) by the manner of their use, the words invade the right of others to pursue their lawful activities, or 2) by their very utterance, they inflict injury or tend to incite an immediate breach of the peace.”

In State v. Morris, 335 So.2d 1 (Fla.1976), the Court, following White, supra, reversed the disorderly conduct conviction of an appellant who had “use[d] . . . profane language to police officers in the presence of other persons.” More recently, in State v. Saunders, 339 So.2d 641 (Fla.1976), the Court limited the application of § 877.03 even further,

“so that it will hereafter only apply either to words which ‘by their very utterance . . . inflict injury or tend to incite an immediate breach of the peace,’ White v. State, 330 So.2d at 7; see Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others.”

The focus of our inquiry here, then, must revolve around whether appellant’s admittedly profane words tended to “incite an immediate breach of the peace.” The only evidence presented by the State on this point was that a neighbor of appellant’s opened her window during the incident. Other testimony established, however, that the dispute took place in broad daylight at approximately 3:30 in the afternoon, and that it occurred in the yard immediately in front of appellant’s own private residence. On these facts, the most that can be said about appellant’s epithets is that they were offensive to the deputy who made the arrest and perhaps an object of curiosity to the neighbor who opened her window. Compare Williams v. State, 340 So.2d 498 (Fla. 1 DCA 1976), where this Court upheld a disorderly conduct conviction of a defendant who had banged on an apartment door at 11:30 p. m. and twice created such a disturbance that apartment occupants were forced to call the police. In addition, we find it significant here that the only person who arguably could have been “incite[d to] an immediate breach of the peace” was the deputy who had been sent to the scene to keep the peace.

Appellant’s conviction for disorderly conduct is reversed but her conviction under § 843.01, Florida Statutes (1975), for resisting arrest with violence is affirmed. See § 776.051(1), Florida Statutes (1975), and footnote 2 of State v. Saunders, 339 So.2d 641 (Fla.1976).

SMITH and MELVIN, JJ., concur.


text:
    John P. MILLER, Jerry Lyman and Thomas Striegel, Appellants, v. ALLEN ENGINEERING, INC., a Florida Corporation, Appellee.
    No. 76-2711.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.

      William T. McCluan of Crofton, Holland, Starling, Harris & Severs, P. A., and Palmer W. Collins, Melbourne, for appellants.
    Joe Teague Caruso and Curtis R. Mosley of Wolfe, Kirschenbaum, Caruso & Mosley, Cocoa Beach, for appellee.
   PER CURIAM.

The trial court entered a judgment on the pleadings against the appellant, in which he determined among other things, that the basis of appellant’s action was known to the appellant during the pendency of previous litigation between the parties, and hence, the action should have been filed as a counterclaim. A motion for judgment on the pleadings is predicated solely on the contents of the pleadings. The pleadings herein are not sufficient, in and of themselves, to support the trial court’s determination. Accordingly, the judgment is hereby reversed with directions for further proceedings consistent herewith.

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


author: DAUKSCH, Judge.

text:
    Solomon HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 77-30.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    Richard L. Jorandby, Public Defender, and Marc R. Goldstein, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant was convicted of possession of heroin and delivery of heroin. Both crimes occurred during a single transaction in which the appellant delivered heroin to an undercover agent. Appellant was adjudicated guilty of these charges and sentenced to five years on each count to be served concurrently.

This sentence was error because the appellant could only be sentenced for the higher of the two crimes. Story v. State, 355 So.2d 1213 (Fla. 4 DCA 1978).

The appellee has referred us to Section 775.021(4), Florida Statutes (1976) but we have determined that statute is inapplicable here because the appellant committed the crimes before the effective date of the statute. State v. Munford, 357 So.2d 706 (Fla. 1978).

The convictions and the sentence for the delivery are affirmed but the sentence for the possession is set aside.

ANSTEAD and MOORE, JJ., concur.

      . § 775.021(4), Fla.Stat.(1976): “Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.”


text:
    DOCTORS HOSPITAL, Appellant, v. William B. KAUFMAN and Barbara Kaufman, his wife, Florida Polo, Inc., et al., Appellees.
    No. 77-611.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellant.
    Bradford Swing of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellee-Florida Medical Malpractice Joint Underwriting Association.
    Thomas R. Post, Miami, for appellee-Flor-ida Patients’ Compensation Fund.
   PER CURIAM.

Upon consideration of the record on appeal and briefs of counsel for the respective parties, we modify the order on appeal by deleting therefrom any reference as to insurance coverage for Doctors Hospital of Lake Worth by Florida Medical Malpractice Joint Underwriting Association. In all other respects the order appealed is affirmed.

Affirmed as modified.

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


text:
    William J. CHRISTIE, as Stockholder of the House of Care, Inc., Appellant, v. John P. HIXSON and Margie L. Hixson, Individually, and as officers and directors of the House of Care, Inc., and the House of Care, Inc. (a Florida Corporation), Appellees.
    No. 77-761.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    Ronald A. Nour, Daytona Beach, for appellant.
    Peter Haddad, Titusville, for appellees.
   PER CURIAM.

Upon consideration of the record and briefs of counsel for the respective parties, we determine the trial court erred in sustaining objections to interrogatories and in entering a protective order as the objections were non-specific and insufficient. Carson v. City of Fort Lauderdale, 173 So.2d 743 (Fla. 2d DCA 1965). Accordingly, the order appealed bearing date March 28, 1977 is reversed and the cause remanded with directions that the interrogatories be answered.

Reversed and remanded with directions.

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


author: ANSTEAD, Judge.

text:
    Diana Marie DANSIG, formerly Diana Marie Roman, Appellant, v. Robert L. ROMAN, Appellee.
    No. 77-1645.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    James P. O’Flarity of Law Offices of James P. O’Flarity, Fort Lauderdale, for appellant.
    No appearance for appellee.
   ANSTEAD, Judge.

It appears from the record before this court that an order was entered by the trial court rescinding a previous order and deciding other substantive issues without notice or an opportunity to be heard by one of the parties. This was not proper. Lieberman v. Marshall, 236 So.2d 120 (Fla.1970).

Accordingly, the trial court’s order of June 29, 1977 is hereby reversed with directions for further proceedings consistent with this opinion.

REVERSED.

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


text:
    Melvin T. GOLDBERGER, Dean Moses, Earl Worsham, Fred Roehner and Soll Roehner, d/b/a Regency Highland Associates, Appellants, v. UNITED PLUMBING AND HEATING, INC., a Florida Corporation, Hoffco, Inc., a Florida Corporation, Safeco Insurance Co., etc., and Northwestern Mutual Life, etc., Appellees.
    No. 77-1798.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.

      Curtis G. Levine, South Palm Beach, Bas-kin, Schwartz, Brown & Kaplan, Boca Ra-ton, for appellants.
    Robert A. Hingston, of Welbaum, Zook, Jones & Williams, Miami, for appellee-Safe-co Ins. Co.
   DAUKSCH, Judge.

Appellants appeal an order vacating orders discharging mechanics’ liens recorded against their real property by five subcontractors. The order appealed was entered by a successor judge following rotation of the original trial judge to another division of the circuit court. We find that three of the liens properly were discharged and therefore, it was error to vacate the orders discharging the three liens. However, the orders discharging the remaining two liens were improper and that part of the order vacating these two orders of discharge is correct.

Appellee Safeco Insurance Company is the surety on a payment bond posted by the contractor on August 24, 1974. Five subcontractors recorded claims of lien against the owners’ property in early 1976. Three separate lawsuits relating to these liens were filed below and then consolidated. The order appealed pertains to only two of the actions below.

In Case No. 76-493, Appellants filed a complaint to discharge four liens pursuant to Section 713.21(4), Florida Statutes (1975), alleging the existence of a valid contractor’s payment bond as grounds for discharge of the liens recorded against their property. Four subcontractors were named as defendants: United Plumbing and Heating, Inc., Atlantic Steel Fabricators, Inc., Nutting Engineers of Florida, Inc., and Coastal Reinforcing Systems, Inc.

Nutting Engineers of Florida, Inc. made no response to the complaint. Coastal Reinforcing Systems, Inc. filed a disclaimer of its lien, citing the payment bond as its reason for doing so. Atlantic Steel Fabricators, Inc. answered the complaint, denied the allegations concerning the payment bond, and counterclaimed for foreclosure of its lien. Appellants answered Atlantic Steel’s counterclaim and raised the payment bond exemption as an affirmative defense. United Plumbing and Heating, Inc. answered the Appellants’ complaint to discharge, denied the allegations relating to the payment bond, and as an affirmative defense referred to a pending lawsuit in which it was seeking to foreclose its lien recorded against Appellants’ property.

While Appellants’ action to discharge the four liens was pending, another subcontractor, Atlantic Coast Development, Inc., filed a complaint to foreclose the lien it had recorded against Appellants’ property in March, 1976. (Case No. 76-1330). Count III of the amended complaint alleged the existence of the payment bond and a copy of the bond was attached. The owners moved to dismiss the action on the ground that the allegations affirmatively showed that no cause of action existed against the owners’ property because a § 713.23 payment bond had been posted. The motion to dismiss was granted on a specific finding by the trial court that a payment bond was provided by the contractor pursuant to § 713.23. A motion for rehearing was denied. No appeal was taken.

Approximately four months after Atlantic Coast Development’s foreclosure complaint against the owners’ property was dismissed, the original trial judge entered separate orders discharging all liens recorded against the property by the five subcontractors. The circumstances surrounding the entry of the orders are not disclosed by the record on appeal. Appellee Safeco moved to vacate the orders of discharge. By this time, the original trial judge had been rotated to another division and his successor presided at the hearing on Safeco’s motion to vacate the orders discharging the five liens. The order has the effect of restoring the five liens against the owners’ property.

We find that the orders discharging the liens claimed by Nutting Engineers of Florida, Inc., Coastal Reinforcing Systems, Inc., and Atlantic Coastal Development, Inc. were proper. Therefore, that part of the order vacating these orders of discharge is reversed. The orders discharging the liens claimed by United Plumbing and Heating, Inc. and Atlantic Steel Fabricators, Inc. were improper. That part of the order vacating these two orders of discharge is affirmed.

The legal effect of a contractor’s payment bond is to exempt the owner from the provision of Parts I and II of Chapter 713, Florida Statutes. If the payment bond is valid and in compliance with the statutory provisions of Chapter 713, no mechanics’ lien can be perfected against the owner’s property. As this Court observed in Resnick Developers South, Inc. v. Clerici, 340 So.2d 1194 (Fla. 4 DCA 1976), a serious problem arises for the owner when a lienor who has no right to perfect his lien because of the payment bond exemption does so anyway. In such a situation, several alternatives are available to the owner to remove the claim of lien from the property. If the lienor takes no steps to foreclose his lien, the owner may rely on the passage of time and the claim of lien will die a natural death. Another option available to the owner is to take the affirmative step of filing a complaint to discharge the lien. Section 713.21(4), Florida Statutes (1975). But if the lienor files a foreclosure complaint before the owner has taken any action to have the lien discharged, the owner may raise the payment bond exemption as an affirmative defense. Resnick Developers South, Inc. v. Clerici, supra. If the payment bond defense appears on the face of the foreclosure complaint, the owner may raise the defense by a motion to dismiss. Hunt Truck Sales and Service v. Bonanza Construction, Inc., 353 So.2d 612 (Fla. 4 DCA 1977).

In a proceeding under § 713.21(4), the owner files a complaint for discharge and a summons is issued to each lienor named in the complaint to show cause why his lien should not be enforced by action (filing of a lawsuit to foreclose) or vacated and cancelled of record. If the lienor fails to show cause or to commence an action to enforce his lien before the return date of the summons, “the Court shall forthwith order cancellation of the lien.” A complaint for discharge under § 713.21(4) is a special statutory proceeding and a lienor must strictly comply with its provisions to protect his lien. Wesley Construction Co. v. Yarnell, 268 So.2d 454 (Fla. 4 DCA 1972). A lienor may commence an action to enforce his lien, and thereby avoid cancellation of the lien under § 713.21(4), by filing a lien foreclosure action as a counterclaim to the owner’s § 713.21(4) complaint. Id.

Since Nutting Engineers of Florida, Inc. made no response to the owners’ § 713.21(4) complaint to discharge its lien, the owners were entitled to an order discharging Nutting’s lien. In fact, § 713.-21(4) mandates cancellation of the lien if a timely response is not made. § 713.21(4) does not require a hearing or even notice to the lienor before an order of discharge is entered. See Scott v. Premium Development, Inc., 328 So.2d 557 (Fla. 1 DCA 1976). The lienor is warned by the summons accompanying the complaint that he must take the proper action or his lien will be discharged. Accordingly, the trial court erred in vacating the discharge of Nutting’s lien.

Coastal Reinforcing Systems, Inc. disclaimed its claim of lien on the basis of the payment bond. The order discharging the lien was a formality in the face of the written disclaimer. The order vacating the order discharging Coastal Reinforcing’s lien has the effect of reinstating a voluntarily disclaimed lien and is error.

However, the liens claimed by United Plumbing and Heating, Inc. and Atlantic Steel Fabricators, Inc. were improperly discharged. Both of these lienors timely answered Appellants’ § 713.21(4) complaint to discharge. Atlantic Steel counterclaimed for foreclosure of its lien and United Plumbing and Heating, Inc., by way of affirmative defense, informed the trial court that it had already taken steps to foreclose its lien in a separate pending action. § 713.21(4) mandates discharge of a lien by the court only if the lienor fails timely to show cause or to commence an action to enforce its lien. It may well be that Appellants ultimately will prevail on their payment bond defense, if properly pleaded in the foreclosure actions brought by these two lienors. However, Appellants are not entitled to a summary discharge of the two liens in a § 713.21(4) proceeding since both lienors have taken timely action to enforce their liens. Accordingly, there was no basis for the trial court’s orders discharging these liens in Appellants’ § 713.21(4) proceeding.

Finally, the order discharging the lien filed by Atlantic Coast Development, Inc. was proper and should not have been vacated. The trial court granted the owners’ motion to dismiss Atlantic Coast’s foreclosure action against the property because of the payment bond. A motion for rehearing was denied. When a foreclosure action against the owner is dismissed because of a payment bond exemption, the order is a final and appealable judgment. Hawaiian Inn of Daytona Beach, Inc. v. Dunn, 342 So.2d 132 (Fla. 1 DCA 1977). No appeal was taken in that case. Since Atlantic Coast had no cause of action for foreclosure against the owners’ property, an order discharging its lien was proper.

The order appealed is reversed in part and affirmed in part and remanded with directions to discharge the liens claimed by Nutting Engineers of Florida, Inc., Coastal Reinforcing Systems, Inc. and Atlantic Coast Development, Inc.

REVERSED IN PART AND REMANDED.

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

      . Four of the orders of discharge were entered in the lawsuit brought by Appellants’ to discharge liens (Case No. 76-493) and the fifth order was entered in Atlantic Coast Development’s foreclosure action (Case No. 76-1330).


text:
    STATE of Florida, Appellant, v. Reginald THOMPSON, Appellee.
    No. 77-1836.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    Robert L. Shevin, Atty. Gen. and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The trial court transferred this cause to the county court on the assumption that attempted burglary was a misdemeanor. This court has recently ruled that attempted burglary was a felony of the third degree in Gray v. State, 356 So.2d 848 (Fla. 4th DCA, opinion filed March 14, 1978). Accordingly, the order of transfer is hereby reversed with directions for further proceedings consistent with this opinion.

ANSTEAD, LETTS and MOORE, JJ., concur.


text:
    Salah GOUDA, Petitioner, v. BLUE GOOSE GROWERS, INC., a Foreign Corporation, Respondent.
    No. 77-2737.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    Raymond E. Ford, Fort Pierce, for petitioner.
    J. Stephen Tierney, III, of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for respondent.
   PER CURIAM.

Petition for writ of certiorari DENIED.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.


author: HUBBART, Judge.

text:
    ROBSOL, INC., Champlain Building Corp., MRSR, Inc., and Eton Realties, Inc., Appellants, v. Milton B. GARRIS, Jr., Garris Engineers, Inc., and Robert Hutcheson, Appellees.
    No. 76-2291.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Colson & Hicks, Susan Goldman, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

The plaintiffs Robsol, Inc., Champlain Building Corp., MRSR, Inc., and Eton Real-ties, Inc. appeal a final summary judgment entered in favor of the defendant Robert Hutcheson in an action for damages allegedly sustained in part as a result of the defendant Hutcheson’s breach of contract and negligence as an architect. The plaintiffs contend on appeal that there was a genuine issue of material fact as to whether the defendant Hutcheson was guilty of actionable negligence and breach of contract as an architect in submitting architectural plans to the plaintiffs’ predecessor in interest for a high rise condominium project, which plans violated the applicable municipal bulkhead line as provided for in the City of Surfside local ordinances. We agree and reverse.

The law is clear that an architect owes a duty of due care to his client in arranging site plans and drawing buildings which are in conformance with building and zoning codes as well as other similar local ordinances. The architect is liable to his client in tort and contract when that duty is breached as to any damages proximately caused by such breach. Graulich v. Berlowe & Associates, Inc., 338 So.2d 1109 (Fla. 3d DCA 1976); Maritime Construction Co. v. Benda, 262 So.2d 20 (Fla. 1st DCA 1972); Bott v. Moser, 175 Va. 11, 7 S.E.2d 217 (1940). See Geer v. Bennett, 237 So.2d 311 (Fla. 4th DCA 1970).

Our review of the record herein reveals sufficient factual conflict as to whether the defendant Hutcheson breached his above-stated duty of due care to his client. The final summary judgment for the defendant Hutcheson is therefore reversed and the cause remanded to the trial court for further proceedings. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed.


text:
    Eleyna McKIBBEN and Robert McKibben, her husband, Appellants, v. Oscar ZAMORA and Nationwide Mutual Insurance Company, etc., Appellees.
    No. 76-2367.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.

      Horton, Perse & Ginsberg, Tobin & Fisch, Miami, for appellants.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   HUBBART, Judge.

This is a negligence tort action for personal injuries and property damage arising out of an automobile accident filed before the Circuit Court for the Eleventh Judicial Circuit of Florida. The trial court entered a final summary judgment for the defendants on the ground of res judicata. The plaintiffs appeal.

The sole issue presented for review is whether a plaintiff is barred by res judicata from bringing a negligence tort action for personal injuries sustained in an automobile accident when the plaintiff has previously obtained a judgment against the same defendant on a tort claim for property damage arising out of the same automobile accident if the plaintiff at the time he filed such property damage claim did not meet the no-fault threshold requirements for personal injury claims under the Florida Automobile Reparations Reform Act [§ 627.-737(2), Fla.Stat. (1975)]. We hold that no exception is presented to the rule which prohibits the splitting of a cause of action between personal injury and property damage claims arising from a single tort incident, and that the plaintiff is barred by res judicata from bringing the second lawsuit for personal injuries herein. Accordingly, we affirm the final summary judgment entered for the defendants in this cause.

The facts of this case are substantially undisputed. On December 7, 1975, the plaintiff Eleyna McKibben was operating a motor vehicle in Dade County, Florida, when she became involved in an automobile collision with another motor vehicle operated by the defendant Oscar Zamora and insured by the defendant Nationwide Mutual Insurance Co. The plaintiff Robert McKib-ben was then and is now the husband of the plaintiff Eleyna McKibben.

On April 12, 1976, the plaintiffs Eleyna and Robert McKibben filed a lawsuit against the defendants Oscar Zamora and Nationwide Mutual Insurance Co. before the County Court of Dade County, Florida. The plaintiffs therein sought certain property damages to their motor vehicle sustained by them due to the defendant Zamora’s alleged negligence arising out of the above automobile accident. Although the defendants herein make a compelling argument to the contrary, we must assume for summary judgment purposes only that the plaintiffs had not reached the no-fault threshold of $1,000 in personal injury damages or a permanent injury within the meaning of the Florida Automobile Reparations Reform Act [§ 627.737(2), Fla.Stat. (1975)] at the time they filed their county court lawsuit. On June 14, 1976, a default judgment was entered in this lawsuit in favor of the plaintiffs and against the defendants in the amount of $915.20 plus costs.

On June 9, 1976, the plaintiffs filed a second lawsuit against the same defendants in the Circuit Court for the Eleventh Judicial Circuit of Florida, again alleging negligence against the defendant Zamora arising out of the same automobile accident, but this time alleging personal injuries as well as property damage in an amount in excess of $2,500 and also alleging a permanent injury. The defendants filed an amended answer to the complaint setting up the affirmative defense of res judicata based on the above county court judgment. Upon motion of the defendants, the trial court entered a final summary judgment in favor of the defendants on the ground that the cause of action was barred by res judicata. This appeal follows.

It is the established law of this state that where a single wrongful or negligent act causes both personal injury and property damage a single cause of action arises which must be claimed or recovered in a single lawsuit or not at all. The law does not permit the plaintiff to split his cause of action by dividing his property and personal injury claims arising from a single tort incident into two lawsuits. This rule is founded on the sound policy reason that the finality established by the rule promotes greater stability in the law, avoids vexatious and multiple lawsuits arising out of a single tort incident, and is consistent with the absolute necessity of bringing litigation to an end. Mims v. Reid, 98 So.2d 498 (Fla.1957); 1 Fla.Jur.2d Action § 61 (1977).

One exception to the above rule has been recognized. An insurance carrier subrogated to the property claims of its insured may bring a suit for property damages sustained by its insured without regard to a prior lawsuit brought by the insured for personal injuries arising out of the same tort incident. Edelman v. Kolker, 194 So.2d 683 (Fla.3d DCA 1967). Similarly, the insured is not barred from bringing a suit for personal injuries based on its carrier’s prior lawsuit for subrogated property damages arising out of the same tort incident. Rosenthal v. Scott, 150 So.2d 433 (Fla.1961), rev’d on rehearing, 150 So.2d 436 (Fla.1963).

The policy reason behind this insurance subrogation exception is to facilitate the prompt settlement of property damage claims by an insured as against his own insurance carrier without prejudicing either the insured’s right to sue the tortfeasor for personal injuries or the insurance carrier’s right to bring a subrogated property claim against the same tortfeasor. A contrary rule would discourage such settlements by requiring the plaintiff insured to bring all of his claims together in a single lawsuit and not settle his property damage claim with his own carrier as soon as possible.

Measured by these established standards, it is clear that the plaintiffs herein are barred from bringing the second lawsuit against the defendant for personal injuries and property damage. The plaintiffs have impermissibly split a single cause of action into a property damage claim and a personal injury and property damage claim both brought against the same tortfeasor and both arising out of the same tort incident. Moreover, the insurance subrogation exception in no way applies to this case. Under the established law, the plaintiffs are accordingly barred from bringing their second lawsuit by the judgment they obtained in the county court on their property damage claim.

The plaintiffs contend, however, that a new exception should be recbgnized to the rule prohibiting the splitting of a cause of action as between property damage and personal injury claims arising out of a single tort incident. It is urged that a plaintiff who is involved in a motor vehicle accident should be able to split his tort claims for property damage and personal injury, arising from such an accident so long as he files his property damage claim at a time when he has not yet met the no-fault threshold requirements for bringing a personal injury claim under the Florida Automobile Reparations Act. We see no sound policy reason for creating such an exception. There is a compelling need in this day and age for bringing an end to litigation arising out of single causes of action in an already overburdened judicial system in this state. We fully recognize that such a choice requires a balancing of the interests, but we are convinced that we must come down on the side of bringing finality to tort litigation arising out of the great number of motor vehicle accidents in this state. To permit the splitting of a single cause of action in such cases simply encourages multiple tort litigation which in our view is unjustified and ill advised.

The judgment appealed from is affirmed.


text:
    Jose A. CABRERA et al., Appellants, v. INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 77-380.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Lawrence D. Faye, Coral Gables, and Thomas G. Sherman, Miami, for appellants.
    Goodhart & Rosner, Greene & Cooper and Sharon L. Wolfe, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 447 (1974); Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla.1976); Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1977); Nichols v. Miami Burglar Alarm Co., 339 So.2d 175 (Fla.1976); Canal Authority v. Ocala Manufacturing Ice & Packing Co., 332 So.2d 321 (Fla.1976); Thompkins v. Metropolitan Dade County, 345 So.2d 1090 (Fla. 3d DCA 1977); Equitable Life Assurance Society of United States v. Fuller, 275 So.2d 568 (Fla. 3d DCA 1973); Werley v. State, 271 So.2d 814 (Fla. 3d DCA 1973); and Curtis Publishing Co. v. Bader, 266 So.2d 78 (Fla. 3d DCA 1972).


text:
    INVESTORS DIVERSIFIED CONSTRUCTION, INC., Joel S. Ratner and Regina Ratner, Appellants, v. NORIN MORTGAGE CORP., Normor, Inc., Midland National Bank and Capital Bank of North Bay Village, Appellees.
    No. 77-526.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.

      Storace, Hall & Hauser and William S. Bischoff, Miami, for appellants.
    Therrel, Báisden, Stanton, Stillman, Brown & Wood and Howard A. Setlin, Miami Beach, for appellees.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendants Investors Diversified Construction, Inc., Joel S. Ratner and Regina Ratner appeal a final judgment for $18,-045.93 entered against them in this action for specific performance and damages and in essence contend that the trial judge erred in refusing to grant them a jury trial. We cannot agree.

Plaintiffs Norin Mortgage Corporation and Normor, Inc. granted defendant developers Investors Diversified Construction, Inc. and Joel Ratner a construction loan which subsequently went into default. The parties entered into a “work-out” agreement whereby the defendants agreed to turn over the completed building to plaintiff lenders which would take a deed in lieu of foreclosure and give back to defendants a $100,000 letter of credit. Paragraph 7 of this agreement (which is the basis for the present action) provided that the defendants:

“. . hereby release, waive, remise and relinquish any and all right, title or interest whatsoever to or in any and all deposits given by a purchaser(s) or lessee^), together with any and all rental payments for the month of March, 1976 and all future months; . . .”

Thereafter, in calculating the required pro-rations, a dispute arose as to whether under paragraph 7 above plaintiffs were entitled to the security deposits or prepaid rents. The defendants took the position that these monies belonged to them because they were earned as collected and as a result of their refusal to turn over the prepaid rents collected prior to March, 1976, the lenders filed the instant lawsuit. The defendants having failed to file responsive pleadings, a default judgment and thereafter a final judgment was entered. They then moved to vacate the final judgment and after hearing argument of counsel, the trial judge by order of December 15, 1976 vacated the final judgment, directed defendants to file an answer on that same day and set the trial for December 29. Defendants filed their answer and on December 27 filed a demand for a jury trial. On December 29 defendants at the commencement of the trial renewed their demand for a jury trial and requested a continuance. The trial judge denied the demand for a jury trial and continuance and the cause was tried non-jury. At the conclusion of the trial, the judge found that paragraph 7 of the agreement included prepaid rents advanced prior to March, 1976 to be utilized for months subsequent thereto. Thereupon, the judge entered final judgment for $18,045.93 in favor of plaintiffs. This appeal ensued.

It is clear that the order of December 15 vacating the final judgment and setting the case for trial did not contemplate a jury trial. In addition, it appears that counsel for defendants drew up the order which is silent with respect to a jury trial. Thus, we find no abuse of discretion on the part of the trial judge in trying the cause non-jury. Cf. Wertman v. Tipping, 166 So.2d 666 (Fla. 1st DCA 1964).

Furthermore, the construction of paragraph 7 (which is the basis for this action) was a matter of law to be determined by the court, not a jury. See City of Orlando v. H. L. Coble Construction Co., 282 So.2d 25 (Fla. 4th DCA 1973) and 7 Fla.Jur. Contracts § 73 (1956).

Affirmed.

      . The building originally was intended to be a condominium but later was changed to a rental.


text:
    Marvin WILLIG, Trustee, Appellant, v. Al H. BLAKE et al., Appellees.
    No. 77-1254.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Grusmark, Jaffe, Karten, Miami, for appellant.
    Stuart Simon, County Atty., and Robert L. Krawcheck, Asst. County Atty., for ap-pellees.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an order denying his petition for reconsideration entered by the trial court on May 25, 1977, following its granting of summary judgment in favor of appellees, defendants below. We affirm.

Appellant’s point on appeal is set forth in his brief as follows:

“Whether the filing of a complaint simultaneously with the payment of a tax assessment in full raises sufficient issue of a material fact to wit: whether the payment was under protest and not voluntary as to prevent the granting of a summary final judgment against the plaintiff.”

Appellant’s complaint was filed on December 3, 1976. About the same time, appellant made a full payment of the amount of a tax assessment due and owing to appel-lee Al H. Blake, Tax Collector, Metropolitan Dade County [hereinafter referred to as Tax Collector]. At the time of this payment, the Tax Collector had not been served with process in regard to the complaint. In fact, the record shows that appellant did not deliver process to the sheriff for service until December 9, 1976, approximately six days after the payment was made. Service of process was made on December 13, 1976. Thereafter, appellees filed their answer and defenses wherein they set forth the following affirmative defense:

“The complaint should be dismissed due to the plaintiff’s [appellant] payment of taxes in full and without protest.”

Subsequently, appellees filed a motion for summary judgment on the basis that the taxes had been paid in full without protest. On April 6, 1977, the trial court entered summary final judgment in favor of appel-lees. Appellant then filed a petition for reconsideration which the trial court denied in an order dated May 25, 1977. From this order, appellant brings his appeal.

Appellant’s primary argument in support of his point on appeal is that the filing of his complaint on the same day that he paid the taxes showed that the taxes were not paid voluntarily, but under protest. We disagree with appellant.

The record shows that the Tax Collector was not made aware of the filing of the complaint at the time the taxes were paid in full without protest. In fact, he was not served with process until approximately six days later. By paying the taxes in full without protest, appellant chose to ignore the statutory provisions governing the payment of taxes upon an assessment in dispute. Section 194.171, Florida Statutes (1975), establishes the procedure whereby a taxpayer, before bringing an action, shall pay to the Tax Collector only the amount of tax which is admitted in good faith to be owed. This Section does not contemplate or require the taxpayer to pay any more taxes than those which he admits to be due and owing. Consequently, any payment made by a taxpayer, unless specifically paid under protest, should be presumed to be a good faith payment of the taxes admitted to be due and owing. If the taxpayer takes it upon himself to depart from the statutory scheme, then he is under an obligation to put the Tax Collector on actual notice that he is contesting the taxes paid. In the instant case, there was no actual notice of protest given to the Tax Collector at the time the taxes were paid. Therefore, the payment of the taxes in full without proper protest gave rise to appellees’ complete affirmative defense upon which the trial court granted summary final judgment in their favor. See State ex rel. Victor Chemical Works v. Gay, 74 So.2d 560 (Fla.1954); North Miami v. Seaway Corp., 151 Fla. 301, 9 So.2d 705 (1942); and Tietig v. Dade County, 214 So.2d 634 (Fla. 3d DCA 1968). Because the summary final judgment was correctly entered by the trial court, appellant’s petition for reconsideration was properly denied. Therefore, no other error having been made to appear, the order of the trial court denying appellant’s petition for reconsideration is affirmed.

Affirmed.


text:
    EASTSIDE PROPERTIES, INC., a Florida Corporation, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 77-1820.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Milledge & Hermelee and Earl G. Gallop, Miami, for appellant.
    Stuart Simon, County Atty. and Robert A. Ginsburg, Asst. County Atty., for appel-lee.
    Before HENDRY, J., and CHARLES CARROLL (Ret.), and PARKER, J. GWYNN, (Ret.), Associate Judges.
   PER CURIAM.

Appellant applied to Dade County for rezoning classification of two adjoining parcels of land, from single family residential to that which would permit townhouse development (for one eighteen acre portion) and permit a community shopping center (on the other portion comprising thirty-one acres). The County Commission denied the requested rezoning, but liberalized the zoning of the thirty-one acre tract to permit townhouses thereon. The applicant for the rezoning sought review by certiorari in the circuit court. A judgment was entered denying certiorari, and this appeal followed.

Appellant argues that its proposed development of its property is consistent with the County’s comprehensive development master plan and is compatible with surrounding land uses. Secondly, appellant argues that the County’s professional staff determined that adequate services are available to, and that no off-site impacts result from, the proposed development. Third, appellant contends that gauged by conventional zoning concepts, the zoning placed on the property by the County is without any foundation and is punitive, arbitrary and unreasonable.

Those questions were considered by the circuit court in the review there of the action of the County Commission. The reassertion of these contentions here represents an attempt to have a second appeal. Basically, the circuit court determined and held that the question dealt with by the County Commission was one that was fairly debatable.

The judgment of the circuit court, which reveals careful and thorough consideration of the relevant facts and the applicable law, after stating the action taken by the Commission on the rezoning application, was as follows:

“The subject property is unimproved real property consisting of a total of 49.-341 acres in southwest Dade County, Florida, in the vicinity of Killian Drive and the West Dade Extension of the Florida Turnpike. The Court has considered the record herein and the briefs and oral argument of counsel.
“The hearing before the County Commission focused primarily on two issues:
“1. Whether the proposed community shopping center was needed within the community it is designed to serve;
“2. Whether the proposed community shopping center would be properly located on the subject property considering the surrounding community development.
“1. Need for the Proposed Shopping Center. Petitioner sought to establish the need for the proposed shopping center by relying upon an economic analysis which concluded that the shopping center would be economically feasible according to national standards. The Petitioner’s report is dated April, 1975, a year and a half prior to the hearing before the County Commission and more than two years prior to the hearing before this Court. The figures in the report have not been updated. The report restricts itself to analyzing shopping centers within a three mile radius of the proposed project. The Dade County Planning Department has identified 13 shopping center sites in the same three mile area. In addition to the sites enumerated in its report, the Planning Department in its presentation to the Commission also identified the nearby Briar Bay Shopping Center located on Southwest 136 Street west of South Dixie Highway. The record also indicates that if the radius were extended one additional mile, it would include both the 80 acre Dadeland Regional Shopping Center as well as the Sunniland Shopping Center extending south on Dixie Highway from Killian Drive.
“Thus, the Board of County Commissioners was presented with conflicting testimony on the need for additional commercial shopping centers to serve the residential community surrounding the subject property. The failure of the Petitioner to use current figures or to include within its study, the impact of Dadeland, Sunniland and Briar Bay makes this issue fairly debatable.
“2. Character of Neighborhood. Petitioner placed major emphasis upon its location between the Turnpike on the west and Woodlawn Cemetery to the east. The subject location does not mandate commercial rather than residential zoning. The record indicates that the Turnpike is well buffered in this location and would be compatible with residential zoning. Petitioner’s reliance upon a cemetery property is misplaced. According to the Dade County Code, such property exists as a special exception in the Interim (GU) Zone and is not to be used to justify more intensive use for adjacent property.
“The subject property does abut liberal business zoning on its narrow southern extremity but with that exception, it is surrounded by various classifications of residential zoning and uses. Killian Drive is wholly residential from Dixie Highway on the east to the subject property on the west. The existing commercial areas are located on Dixie Highway, Kendall Drive and to the south of the subject property on major thoroughfares — not in the heart of the residential community.
“The County’s professional staff strongly objected to the location of the proposed community shopping center and termed it a nuisance in terms of traffic generation, noise, congestion, air pollution and glaring lights. Their recommendations are probative to support the fairly debatable action of the County Commission.
“The appropriateness of the subject property for the proposed commercial use was strongly contested before the County Commission and the Court finds and determines that this issue was fairly debatable.
“Finally, the Petitioner failed to establish that residential uses for the subject property would deprive it of the economic benefit from its ownership of the property. Petitioner, as noted above, presented the County Commission with extensive economic analysis and research designed to establish the economic viability of a commercial shopping center. This was not done regarding possible residential use. Therefore, in light of the legal principles enunciated above, the Petitioner has failed to carry its burden of proof in establishing the illegality of either the existing zoning classification or other residential zoning classifications which may be available to it.
“Petitioner’s argument that the quasi-judicial procedure reviewable in Circuit Court by certiorari constitutes a denial of due process is without merit. Marca v. Dade County, 326 So.2d 183 (Fla. 3d DCA 1976) [Dade County v. Marca, S. A., 326 So.2d 183 (Fla.1976)]; Dade County v. Yumbo, S. A., 348 So.2d 392 (Fla. 3d DCA 1977).
“In conclusion, economic feasibility is not the legal standard for review of zoning decisions by the Board of County Commissioners, nor is it necessarily synonymous with the public need. The Court will defer to governmental judgments concerning proper land use allocation unless they are shown to be arbitrary and capricious and fail to be grounded in the public health, safety and welfare. For all the reasons stated above, the Petitioner has failed to carry its extraordinary burden of proof in this regard. It is accordingly
ORDERED and ADJUDGED as follows:
“1. The Petition for Writ of Certiorari be and the same is hereby denied.
“2. Dade County Zoning Resolution No. Z-233-76 be and the same is hereby upheld as valid and constitutional as applied to the subject property.”

We find need to add little to the disposition of the matter by the circuit court as revealed above. Review of such action by the County Commission is by petition for certiorari in the circuit court as provided by Section 33-316 of the Code of Metropolitan Dade County. Such review is restricted to the record as made before the County Commission. DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957); Dade County v. Marca, S.A., supra, 326 So.2d 183 (Fla.1976). In the circuit court judgment, the court regarded as being without merit the petitioner’s argument that such a restricted review, limited to the record of the proceedings before the County Commission, was lacking in due process because the Commission’s decision was the result of quasi-judicial action. That argument was repeated here. We hold it is without merit. The proceeding before the County Commission was not quasi-judicial. It was legislative. The action of a governing body of a county or municipality in amending its comprehensive zoning ordinance is legislative action as distinguished from quasi-judicial action. Schauer v. City of Miami Beach, 112 So.2d 838 (Fla.1959). No want of due process was shown. We hold that the circuit court correctly found that the challenged legislative action of the County Commission was the result of its decision of a matter that was fairly debatable. See Dade County v. Yumbo, S. A., 348 So.2d 392 (Fla. 3d DCA 1977).

Judgment affirmed.


text:
    STATE of Florida, Petitioner, v. Brent JETT, Custodian of Records of Florida Cultural Exchange, Inc., and Florida Cultural Exchange, Inc., a Florida Corporation, Respondents.
    No. 77-1918.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.

      Janet Reno, State’s Atty., and Stephen Y. Rosin, Asst. State’s Atty., for petitioner.
    Orr, Nathan & Williams, Miami, for respondents.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

Petitioner, respondent below, brings this petition for writ of certiorari seeking review of an order entered by the Circuit Court, Eleventh Judicial Circuit, quashing a subpoena duces tecum issued at the request of the Office of the State Attorney. For the reasons set forth below, we grant the petition and quash the order under review.

This action was initiated by petitioner when an Assistant State Attorney requested the issuance of a subpoena duces tecum which reads in part, as follows:

“TO ALL AND SINGULAR THE SHERIFFS OF THE STATE OF FLORIDA: GREETINGS
We command you to summon BRENT JETT, CUSTODIAN OF RECORDS OF FLORIDA CULTURAL EXCHANGE, INC., or any other Director, Officer or Employee of FLORIDA CULTURAL EXCHANGE, INC., AS CUSTODIAN OF RECORDS
1995 Oakland Park Boulevard
Suite 375
Fort Lauderdale, Florida 33306
to be and appear before the State Attorney on the 6th Floor of the Metropolitan Dade County Justice Building, 1351 N.W. 12th Street, Miami, on the 22nd day of July, 1977 at 10:00 o’clock A.M. and to bring with him and produce for inspection all the following corporate records:”

The subpoena duces tecum was issued by the Clerk of the Circuit Court, Eleventh Judicial Circuit on July 5, 1977, and was returnable on July 22, 1977. On July 13, 1977, respondents, movants below, filed a motion to quash the subpoena duces tecum on the ground, among other grounds, that it failed to contain an ad testificandum clause. We note that neither the above quoted portion of the subpoena duces tecum nor the other unquoted portions contained an ad testificandum clause. Subsequently, the Circuit Court held a hearing on the motion and, thereafter, entered an order dated August 8, 1977, quashing the subpoena duces tecum on the ground that it failed to include an ad testificandum clause. From this order, petitioner brings its petition for writ of certiorari.

Petitioner contends that the Circuit Court departed from the essential requirements of law by quashing the subpoena duces tecum on the basis that Section 27.04, Florida Statutes (1975), limits the State Attorney to request the issuance of only subpoenae which require the person subpoenaed to testify, i. e., subpoenae with an’ad testifican-dum clause. Petitioner argues that the State Attorney is authorized to request both the issuance of subpoenae ad testifi-candum and subpoenae duces tecum. Further, petitioner argues that such subpoenae duces tecum are valid, even though they do not contain an ad testificandum clause.

In response, respondents in their brief concede that the State Attorney has the authority to request the issuance of both subpoenae ad testificandum and subpoenae duces tecum. However, respondents argue that, pursuant to Section 27.04, Florida Statutes (1975), any such subpoenae duces tecum, to be valid, must contain an ad testificandum clause.

The basic question presented by the instant petition for writ of certiorari is whether a subpoena duces tecum, which the State Attorney may request to have issued pursuant to Section 27.04, must contain an ad testificandum clause to be valid. This was the precise question decided, adversely to petitioner, by the Circuit Court when it entered its order quashing the subpoena duces tecum issued at the request of the State Attorney.

It is undisputed, in the instant matter, that Section 27.04 gives the State Attorney the right to use the process of court to request the issuance of both subpoenae ad testificandum and subpoenae duces tecum. The only question for our review is whether such subpoenae duces tecum issued pursuant to the Section must contain an ad testi-ficandum clause. In answering this question, we note that the Supreme Court of Florida has held that Section 27.04, Florida Statutes (1975), is to be liberally construed because of its remedial nature. See Barnes v. State, 58 So.2d 157 (Fla.1951); and Collier v. Baker, 155 Fla. 425, 20 So.2d 652 (1945). Neither petitioner or respondents cite, nor does our independent research reflect, any controlling Florida authority on the question of whether subpoenae duces tecum must contain an ad testificandum clause to be valid. However, this question has been raised and considered by the United States Supreme Court, as well as by other courts. Our study of the cases decided by these courts leads us to the conclusion that an ad testificandum clause is not essential to the validity of a subpoena duces tecum. See, e. g., Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911); McGarry v. Securities and Exchange Commission, 147 F.2d 389 (10th Cir. 1945); Duncan v. Carson, 127 Va. 306, 103 S.E. 665 (1920); and Commonwealth v. Southern Express Co., 160 Ky. 1, 169 S.W. 517 (1914). Based on this conclusion, we hold that a subpoena duces tecum, issued pursuant to the provisions of Section 27.04, Florida Statutes (1975), is valid, even though it contains no ad testificandum clause. Accordingly, the petition for writ of certiorari is granted and the order under review is quashed.

Granted.

      . Compare General Motors Corp. v. State, 357 So.2d 1045 (Fla. 3d DCA, 1978).


text:
    Robert M. JASINSKI, Petitioner, v. Sherman William AUSTIN, Respondent.
    No. 77-2073.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Kessler & Jasinski, Hialeah, for petitioner.
    Sherman William Austin, in pro per.
    Before HENDRY, BARKDULL and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an order of affirmance entered by the Circuit Court of Dade County in an appeal from a final judgment of the County Court of Dade County. We have treated the proceeding before us as a petition for writ of certiorari; see Dresner v. City of Tallahassee, 164 So.2d 208 (Fla. 1964); Galloway v. State, 305 So.2d 278 (Fla. 2d DCA 1974), and have concluded that there was no departure from the essential requirements of law. Petition for cer-tiorari is therefore denied.

It is so ordered.


text:
    Johnnie Lee HAMPTON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-828.
    District Court of Appeal of Florida, Third District.
    May 16, 1978.
    Johnnie Lee Hampton, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON and HENDRY, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

The defendant, Johnnie Lee Hampton, having appealed the denial without hearing of his motion to vacate judgment filed pursuant to Fla.R.Crim.P. 3.850, and this court having examined the record submitted and appellant’s motion filed in the trial court, and the court proceeding pursuant to Fla.R. App.P. 9.140(g) finds that the record shows conclusively that the appellant is entitled to no relief, whereupon, the order appealed is affirmed.


author: GRIMES, Acting Chief Judge.

text:
    Darline Stover GRANTHAM, Appellant, v. STATE of Florida, Appellee.
    No. 77-221.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.

      Jack O. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Martha J. Cook, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant was charged by information with two counts of manslaughter. One count charged her with manslaughter by culpable negligence and the other charged her with manslaughter by reason of the operation of a motor vehicle while under the influence of intoxicants. The jury acquitted her of driving under the influence, but she was convicted of manslaughter by culpable negligence. She appeals her conviction for that offense.

The charges in question stem from an accident which occurred at 7 p. m. on a clear, dry summer evening on U.S. Highway 301 north of Dade City. The appellant, who was travelling north, turned left, intending to enter a driveway on the west side of the highway. As she turned, she drove her automobile directly into the path of an oncoming automobile in which the deceased, Barbara Craig, was a passenger. There was no eyewitness testimony concerning the details of the accident. The Florida Highway Patrol homicide investigator estimated that when the accident occurred appellant was travelling at 25-30 miles per hour while the Craig vehicle was moving at 50 miles per hour. An accident reconstruction expert estimated appellant’s speed at 50 miles per hour and the Craig vehicle at 80 miles per hour. There was no testimony about the speed limit at the accident location. Appellant was quoted after the accident as saying that she had not seen the Craig automobile.

There was evidence of appellant’s intoxication, albeit controversial. Appellant’s first point on appeal attacks the admission of certain blood alcohol test results even though the state had failed to disclose these particular test results in response to appellant’s demand for discovery under Fla.R. Crim.P. 3.220. However, because we find that appellant’s second point is dispositive of this appeal, we need not address the issue of the admissibility of the blood alcohol test. Likewise, we need not consider the appellant’s contention that she could have only been convicted of vehicular homicide. See State v. Young, 357 So.2d 416 (Fla. 2d DCA, filed April 7, 1978).

Appellant argues that the evidence adduced at trial, including any evidence of intoxication, is insufficient to convict her of manslaughter by culpable negligence because the evidence does not demonstrate the requisite degree of culpability. Appellant correctly points out that in order to sustain a conviction of manslaughter under Section 782.07, Florida Statutes (1975), the actor’s conduct must be of a “ ‘gross and flagrant character, evincing reckless disregard of human life,’ ” and there must be a “conscious indifference to consequences.” Filmon v. State, 336 So.2d 586 (Fla.1976).

Appellant was turning left into a driveway when the accident occurred. There is no evidence of any excessive speed or erratic behavior prior to the accident. As this court stated in Scarborough v. State, 188 So.2d 877 (Fla. 2d DCA 1966), “every case of manslaughter by culpable negligence must be determined upon the facts and circumstances peculiar to it.” The facts and circumstances presented by this record reflect conduct better characterized as a momentary lapse of attention than as a reckless indifference for human life.

The fact that the appellant may have been drinking cannot transform conduct which is merely negligent into conduct which is criminally negligent. Smith v. State, 65 So.2d 303 (Fla.1953); Murray v. State, 329 So.2d 349 (Fla. 4th DCA 1976). Our sister court in Peel v. State, 291 So.2d 226 (Fla. 1st DCA 1974), reversed a manslaughter conviction where the defendant ran a stop sign at 40 miles per hour and collided with another vehicle in an intersection. In Jackson v. State, 100 So.2d 839 (Fla. 1st DCA 1958), the court held that one who rounded a curve at an excessive speed, crossed the center line and sideswiped an oncoming vehicle could not be convicted of manslaughter. As here, despite evidence in both these cases that the defendants had been drinking, they were each acquitted of operating a motor vehicle while intoxicated.

The evidence in this case simply falls short of that which is required to convict of the offense charged. The judgment for manslaughter by culpable negligence is reversed and the sentence is set aside. The appellant is hereby ordered discharged from that conviction.

OTT and RYDER, JJ., concur.