text:
    In re GUARDIANSHIP OF Stacy Lee ETTEL and Tracy Lynn Ettel, minors.
    No. W-395.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1975.
    Rehearing Denied Jan. 19, 1976.
    Edward E. Hedstrom of Dowda, Hed-strom & Fields, Palatka, for appellants.
    M. Leslie Stephens of Stephens & Stephens, St. Augustine, for appellee (cross-appellant) Ray S. Ettel.
    A. W. Nichols, III, Palatka, for appel-lees John W. Swilley and Patricia Ann Swilley.
   McCORD, Judge.

This is an appeal from an order of the Circuit Court in and for Putnam County appointing John W. Swilley and Patricia Ann Swilley, his wife, (hereafter referred to as the Swilleys) guardians of the persons of Stacy Lee Ettel and Tracy Lynn Ettel, twins, (hereafter referred to as the twins) ages three and one-half years. Question is raised on this appeal as to whether or not it was in the best interests of these minor children to be separated from their older brother and sister, Ray S. Ettel, III, and Jane Elizabeth Ettel, ages 9 and 8 respectively, (hereafter referred to as the older children) but we do not reach that question as we find that the Circuit Court of Putnam County did not have venue of this cause.

Ray D. Ettel and Jane Swilley Ettel, the natural parents of the minors, died simultaneously in an automobile accident on June 15, 1972, in Georgiy. At the time of their death and for some time prior thereto, the residence and domicile of the family was St. Augustine, St. Johns County, Florida. After the deaths of the parents, as a temporary expedient, the twins were lodged with the Swilleys and were removed to the Swilleys’ home in Palatka, Putnam County. (John Swilley is the maternal uncle of the children.) The older children, as a temporary expedient, were lodged with Marianne S. Broadbear and Michael W. Broadbear, her husband, (hereafter referred to as the Broadbears) in Fulton County, Georgia. Marianne S. Broadbear is the maternal aunt of the children. The persons most closely related to the minors are Ray S. Ettel, their paternal grandfather, and William G. Swilley and Mary V. Swilley, their maternal grandparents.

On October 10, 1972, the County Judge’s Court of St. Johns County (now the Circuit Court in St. Johns County), in the exercise of its jurisdiction, appointed the Atlantic Bank of St. Augustine as guardian of the property of all of the minors and the bank became qualified and continues to act as such guardian. Ray S. Ettel and the William G. Swilleys being the grandparents and all of the persons most closely related to the minors, waived their rights to serve as such guardian and designated said bank to be appointed.

By its order of January 31, 1973, the Juvenile Court of Fulton County, Georgia, on petition of the Broadbears, granted legal custody of the two older children to the Broadbears. On February 26, 1973, the Swilleys filed a petition in the court below, the Circuit Court of Putnam County, asking that they be appointed guardians of the persons of the twins. The William G. Swilleys, the maternal grandparents and two of the persons most closely related to the minors, filed a consent thereto. The Broadbears subsequently on July 19, 1973, filed a petition in the proceeding below asking that they be appointed guardians of the persons of the twins. Ray S. Ettel, paternal grandfather of the minors and one of the persons most closely related to the minors, filed his answer in the proceeding below in which he contended there (and contends here) that the legal residence and domicile of the children was and still is the county of the legal residence •and domicile of their parents at the time of and prior to the parents’ death — St. Johns County; that the legal residence and domicile of the minors has never been changed and continues to be St. Johns County until change by proper court action.

Aside from the venue question, Ray S. Ettel vigorously contended below and contends here that first and foremost the welfare of all of the children requires that they be raised together and not separately. The children are his only legal heirs and the record shows that he has always been devoted to them and helped to provide for them and that he intends to continue to do so, he being a man of considerable wealth. He takes no position as between the Swil-leys and the Broadbears and testified that he would be happy for all four to be with either family; that he is willing and able and has offered to do everything he can to promote the best welfare of all of the children to the extent of providing for them to live together with him or elsewhere, as the Court might determine.

The applicable statutes on the venúe question are as follows :

“744.06 JURISDICTION.—
(1) CIRCUIT JUDGE.—
(a) The circuit court shall have jurisdiction over all matters pertaining to guardians and wards and to the management and the administration of the property of wards, regardless of the origin of cause of the incompetency of the ward.
(b) The circuit judge may appoint a guardian of the person or the property, or of both, of an incompetent.
******
(d) In a conflict as to jurisdiction between circuit courts, the first to obtain lawful jurisdiction shall retain it.”

(Prior to the advent of revised Article V of the Florida Constitution, the references above to the Circuit Court and Circuit Judge were to County Judge’s Court and County Judge.)

“744.11 VENUE. — The venue m proceedings for the appointment of any guardian shall be as follows :
(1) If the incompetent is a resident of this state, the venue shall be in the county where the incompetent resides.
******
(4) Whenever the domicile of an incompetent is changed to another county, the guardian of said incompetent may, by filing a petition, in which the facts concerning said change of domicile are stated, have the venue of said guardianship changed to the county of the acquired domicile.”

Applying the facts as outlined above to the foregoing statute, the children’s legal residence and domicile at the time of the death of their parents was in St. Johns County. Also, the court in St. Johns County has assumed jurisdiction and had appointed a guardian of the property of all of the minors before the Swilleys’ petition was filed in the Circuit Court for Putnam County. Not only was there never a waiver of venue to allow the proceedings in Putnam County, but Ray S. Ettel, one of the persons most closely related to the minors, timely contested the right of the Circuit Court in Putnam County to proceed. Venue not having been legally vested in the Circuit Court in Putnam County, the proceedings should have been transferred to the Circuit Court in St. Johns County. See In Re Mickler’s Guardianship, Fla., 163 So.2d 257 (1964), and the authorities therein cited.

The order of the Circuit Court in Putnam County appealed from is reversed and the guardianship proceedings before it are vacated. The cause is remanded with directions to transfer the proceedings to the Circuit Court in St. Johns County for trial de novo. r

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Daniel Patrick HOGAN, Appellant, v. STATE of Florida, Appellee.
    No. Y-172.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1975.
    Rehearing Denied Jan. 16, 1976.
    Daniel P. Hogan, in pro. per.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant; by his directions to the Clerk for preparation of the transcript, failed to have included therein a transcript of the proceedings at his arraignment and sentencing. We are, thus, unable to determine whether or not there is merit to his contentions made in proper person and subsequently in his reply brief filed by his private attorney.

Affirmed.

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


text:
    Horace McLane BAILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-955.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Horace McLane Bailey, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


author: BOYER, Chief Judge.

text:
    Betty Jean SCHNABEL and Insurance Company of North America, a corporation, Appellants, v. Dorothy MORMANN and Willard Mormann, her husband, Appellees.
    No. X-268.
    District Court of Appeal of Florida, First District.
    Nov. 5, 1975.
    Rehearing Denied Jan. 16, 1976.

      Green, Strasser & Hammond, Daytona Beach, for appellants.
    Wesley A. Fink, Fink & Loucks, Day-tona Beach, for appellees.
   BOYER, Chief Judge.

Appellants, defendants below, appeal from an award of damages to appellees in the trial court. Specifically, appellants assert that the trial court erred in denying their motion for a directed verdict and in giving an instruction to the jury on res ipsa loquitur.

Although the case involved several parties, the primary participants in the drama giving rise to the lawsuit are appellants Betty Jean Schnabel (Mrs. Schnabel) and her mother, appellee Dorothy Mormann (Mrs. Mormann). In April of 1961, Mrs. Schnabel purchased a 1961 Buick. After using the car for approximately ten years, Mrs. Schnabel noticed that the car was leaking gasoline, which she immediately had repaired in July of 1971. From this time until the date of the accident, Mrs. Schnabel professed to have no knowledge that her car was leaking gasoline. From December, 1971, until the time of the accident, the car, when not being used, was kept in Mrs. Schnabel’s garage in Ormond Beach and was driven almost daily by Mrs. Schnabel until Mrs. Mormann arrived on July 17, 1972. From July 17 until July 26 (the day of the accident), the car was parked in the garage and was not used. Neither Mrs. Schnabel nor Mrs. Mormann went into the garage after Mrs. Mormann arrived until the date of the accident. On July 21, Mrs. Schnabel went out of town, leaving her mother to take care of the house. In the early evening of July 26, Mrs. Mormann entered the garage for the purpose of using the washing machine. After turning on the machine and walking into the section of the garage where the car was kept, there was an explosion. Mrs. Mormann received severe burns from the explosion and resulting fire.

At trial, Officer Bushid, a Public Safety Officer with the City of Ormond Beach, testified that on the day of the accident he received a call concerning the fire and went immediately to the scene. Upon arrival, he found that the garage door was partially opened, and that a man who was attempting to put the fire out had backed the car out a foot or two. His investigation revealed that the gas line in the 1961 Buick that led from the gas tank to the fuel pump had been leaking at a fast rate. He stated that there were at least four overlapping gasoline stains with tire marks through them on the garage floor. There was one fresh stain which covered approximately three-fourths of the garage floor. He detected the smell of gasoline within the garage and noted several electrical devices in the garage which might have produced a spark sufficient to ignite the fumes that were there. In response to a hypothetical question, Officer Bushid testified that the gasoline leaking from Mrs. Schnabel’s automobile was ignited by a spark from the washing machine.

We turn first to appellants’ objection to the res ipsa loquitur instruction. Inasmuch as it appears from the record that an objection to this instruction was not timely raised, we are unable to explore the merits of this point on appeal. (See Coleman v. Allen, Fla.App. 1st, 1975, 320 So.2d 864.

Appellants further urge as error the trial court’s denial of their motion for directed verdict. They claim that the motion should have been granted' where no evidence was adduced at trial from which a jury could have lawfully found that Mrs. Schnabel knew, or in the exercise of reasonable care should have known, that the gas line in her automobile was leaking when she left it in her garage on July 16, 1972. (First American Farms, Inc. v. Marden Mft. Co., Fla.App. 1st, 1971, 255 So.2d 536.) Appellees counter by citing the general rule of law that negligence may be established by direct or circumstantial evidence and may be inferred from the evidence found in the record. Moreover, appellees argue that appellants have not met their burden of demonstrating that the jury verdict was totally contrary to the manifest weight of the evidence. (Wheeler v. Yellow Cab Co. of Orlando, Sup.Ct. Fla., 1953, 66 So.2d 501, 504.)

The crucial factual issue in this case is whether the car in question was leaking gasoline prior to July 17, 1972, and if so whether Mrs. Schnabel knew or should have known of the leak. Both Mrs. Schnabel and Mrs. Mormann testified that between July 17 (the date of Mrs. Mor-mann’s arrival) and July 26 (the date of the accident) neither one of them went into the garage. Further, Mrs. Schnabel stated, without contradiction, that from the time the car was repaired in July of 1971 until the date of the accident, she never smelled any gas in her car or noticed any puddle marks on her garage floor.

There was no direct evidence presented at trial from which a jury could lawfully conclude that Mrs. Schnabel knew or even should have known that the gas line in her automobile was leaking when she left it in her garage on July 16, 1972: Nor was there circumstantial evidence from which a jury could logically and reasonably infer that Mrs. Schnabel possessed such knowledge. In order to arrive at such a conclusion, the jury would have to engage in the practice of piling inference on inference which practice has been expressly forbidden. (Voelker v. Combined Ins. Co. of America, Sup.Ct.Fla.1954, 73 So.2d 403; Food Fair Stores, Inc. v. Trusell, Sup.Ct. Fla.1961, 131 So.2d 730.) Sub judice, to infer from the fact that there were automobile tire tracks running through the gasoline puddle stains on the garage floor that the automobile had been leaking gasoline for a sufficient length of time to permit discovery of the leakage, we would first have to infer that the puddle stains were not formed during the ten days immediately prior to the accident when the car was parked in the garage and not used or even observed by anyone. The foregoing is a classic example of the type of mental gymnastics prohibited by the Voelker and Tru-sell decisions.

Seeking to buttress the jury verdict in their favor, appellees emphasize several facts, to wit: the 1961 Buick was an old automobile; the car had previously leaked gasoline and left a puddle on the driveway; Mrs. Schnabel had noted a lessening of gasoline mileage several days prior to parking the automobile in the garage; another automobile which had been previously kept in the garage did not leak any gasoline; and the fact that gasoline has a peculiar odor, which, when it leaks from a container or hose, is available to be smelled. However, it is impossible to reasonably infer from any of the aforementioned facts or from any other facts contained in the record that the .gasoline began leaking prior to July 17. Neither is there any evidence which would lead to the conclusion that Mrs. Schnabel should reasonably have anticipated or foreseen the leak. Such a conclusion could have only been the product of sheer guesswork.

The appellees having failed to establish the most crucial factual element of their case, appellants’ motion for directed verdict should have been granted. Accordingly, we reverse and remand with directions that judgment be entered in favor of appellants, defendants in the court below.

Reversed and remanded with directions.

RAWLS and McCORD, JJ., concur.


text:
    Michael J. SHAARA, Petitioner, v. Robert L. KENNEDY, Jr., as Director of the Division of Retirement, an agency of the State of Florida, Respondent.
    No. Y-71.
    District Court of Appeal of Florida, First District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 16, 1976.
    W. Dexter Douglass and P. Kevin Dav-ey, of Douglass & Powell, Tallahassee, for petitioner.
    L. Keith Pafford and David V. Kerns, Tallahassee, for respondent.
   PER CURIAM.

Upon considering the briefs and record, certiorari is denied.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    In the Interest of T. L. T., a child.
    No. 74-1644.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
    Richard L. Jorandby, Public Defender, Elliot R. Brooks, Chief App. Div., West Palm Beach, and Sherry Lefkowitz, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged in a juvenile proceeding, with a violation of Sec. 805.01, F. S., false imprisonment and kidnapping, and a violation of Sec. 790.07(2), use of a firearm in the commission of a felony. The latter charge was dismissed and appellant was found guilty of the offense of assault, as a lesser included offense of the crime of false imprisonment and kidnapping. Subsequently, appellant filed a motion in arrest of judgment contending that assault was not a lesser included offense. Although the trial court granted the motion, the court found that appellant violated the false imprisonment and kidnapping statute and withheld adjudication. Upon review of the record we are of the opinion that the evidence is insufficient to support a violation of Sec. 805.01; the court’s determination that the facts supported an assault (although a well intentioned, but erroneous determination) clearly demonstrates the insufficiency of the evidence to support the crime as charged. Accordingly, the order finding defendant violated sec. 805.01, F.S., is reversed and the cause remanded with directions that the defendant be discharged with notification to the appropriate parties.

Reversed and remanded.

CROSS, MAGER and DOWNEY, JJ., concur.


author: SMITH, Judge.

text:
    Glenn P. DISMUKES, Appellant, v. STATE of Florida, Appellee.
    Nos. X-219 and X-220.
    District Court of Appeal of Florida, First District.
    Nov. 5, 1975.
    Rehearing Denied Jan. 16, 1976.
    H. Clay Mitchell, Jr., Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

Dismukes appeals from judgments of conviction entered on jury verdicts that Dismukes knowingly received four stolen pianos. The most incriminating evidence adduced against Dismukes was a tape recording of his own words spoken over the telephone to Franklin Willis, who sold Dis-mukes the stolen pianos. Willis initiated and recorded the conversation by prior arrangement with the prosecuting authorities and in hopes of obtaining immunity or leniency for his own offenses. With a State agent standing by and State recording equipment in operation, Willis placed the telephone call and elicited the incriminating statements which the State desired. Dismukes had previously been charged by information and had engaged counsel to assist in his defense.

After an accused has been charged and has retained counsel whose assistance he does not knowingly waive, the Sixth and Fourteenth Amendments proscribe the taking of incriminating statements from him by the deception of an accomplice acting as an agent of the State. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Evidence that Dis-mukes’ attorney had advised Dismukes to talk with Willis to obtain proof that the pianos were not stolen does not alter the result. Dismukes on counsel’s advice might thereby assume the risk that Willis, though not then a State agent, would record the conversation and afterwards barter it to the State for leniency [United States ex rel. Milani v. Pate, 425 F.2d 6 (7th Cir. 970), cert. den., 400 U.S. 867, 91 S.Ct. 109, 27 L.Ed.2d 107 (1970)], but counsel did not knowingly submit Dismukes to direct State efforts, through an agent, to interrogate and elicit incriminating statements. Massiah v. United States, 377 U.S. at 206, 84 S.Ct. 1199.

Neither the tape nor Willis’ testimony about the conversation was admissible. Other sufficient evidence incriminating Dismukes prevents his discharge. The case will be remanded for a new trial.

Reversed.

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


text:
    Damian MONTALVO et al., Appellants, v. Aileen RIVERA, a minor, etc., et al., Appellees.
    Nos. 74-1669, 75-31.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 20, 1976.
    John L. Hartnett, Coral Gables, and Osborne W. O’Quinn, Miami, for appellants.
    Ser & Keyfetz, Miami, for appellees.
    Before BARKDULL, C. J., HENDRY, J., and PIERCE, WILLIAM C, Associate Judge.
   PER CURIAM.

Appellants, defendants in the trial court, seek by these consolidated appeals reversal of the judgments entered in favor of the plaintiffs pursuant to a directed verdict on the issue of liability and a jury verdict assessing damages for plaintiffs, resulting' from Aileen Rivera being bitten by á dog owned by appellants, Mr. and Mrs. Monta-lvo.

Appellants contend that the trial court erred in directing a verdict for the plaintiffs on the question of liability.

It is also contended that the judgment was so excessive as to warrant a new trial or a remittitur.

We have carefully considered the points on appeal in the light of the record, briefs and arguments of counsel and we have concluded that no reversible error has been demonstrated, therefore, the judgments appealed are affirmed.

Affirmed.


author: MILLS, Judge.

text:
    Louis C. CORBIN, as County Court Judge, Division “C” in the County Court of Duval County, Florida, Appellant (Respondent, Judge), v. STATE of Florida ex rel. S. Morgan SLAUGHTER, Appellee (Petitioner, Clerk).
    No. W-137.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1975.
    Rehearing Denied Jan. 16, 1976.
    Robert L. Shevin, Atty. Gen., and Thomas A. Harris, Asst. Atty. Gen., for appellant.
    Harry L. Shorstein, and William Lee Allen, Jacksonville, for appellee.
   MILLS, Judge.

A County Court Judge appeals from a writ of prohibition rendered by the Circuit Court of Duval County prohibiting him from holding contempt proceedings against the Clerk of the County Court on the ground that the Judge did not have authority to issue the order with which the Clerk refused to comply. The question for determination is whether a clerk may challenge the validity of a court’s order purportedly issued in the performance of its judicial function. The answer is no.

The Judge, as Judge of Division “C” of the County Court of Duval County, issued an order directing the Clerk to furnish him with the names of the deputy clerks assigned to him within a specified time. The Clerk refused to comply. The Judge issued an order to show cause why the Clerk should not be held in contempt for failure to comply. The Clerk filed a petition for writ of prohibition with the Circuit Court alleging that the Judge did not have authority or jurisdiction to proceed further, - and that he had no „ adequate remedy other than seeking prohibition. The Clerk contended that the Judge’s order purported to adopt a local rule governing the County Court of Duval County which was prohibited by Rule 1.020, Rules of Civil Procedure. The Judge contended that his order was applicable to his division of the County Court only, and that the Clerk did not have standing to contest the validity of his order. The Circuit Court issued the writ and the Judge appealed.

The Clerk is merely a ministerial officer of the court. Leatherman v. Gimourginas, 192 So.2d 301 (Fla.App.3d, 1966). He does not exercise any discretion. Pan America World Airways v. Gregory, 96 So.2d 669 (Fla.App.3d, 1957). He has no authority to contest the validity of any act of the court for which he acts as clerk which purports to have been done in the performance of the court’s judicial function. State v. Almand, 75 So.2d 905 (Fla.1954).

The Judge’s order directed the Clerk to perform a ministerial act, and was issued in the performance of the Court’s judicial function. The Clerk has no authority to question the validity of the order by petition for writ of prohibition. Any question the Clerk had concerning the order should have been directed to the Chief Judge for resolution.

In addition, the writ of prohibition is an extraordinary writ which issues only when the party seeking it is without other adequate means of redress for the alleged wrong about to be inflicted by an act of the inferior court. It is never allowed to usurp the functions of an appeal. State v. Trammell, 140 Fla. 500, 192 So. 175 (1939).

Neither the petition for the writ nor the record before us shows sufficient grounds to divert the contempt proceeding from the regular channel of procedure by granting the writ of prohibition.

In view of the foregoing, it is unnecessary that we consider the other contentions raised by the parties.

Although unnecessary to this opinion and unsolicited by the parties, we feel compelled to make the following observation. Because our judicial system is under constant assault from many sources and for many reasons, some valid, some invalid; and because actions such as this one heap further criticism upon our judicial system, however good the intention of the parties, we suggest that the parties here, as well as those finding themselves in similar situations, hereafter strive to work out internal disputes with this thought in mind — will the action I take be beneficial to the efficient and economical administration of justice; will it help build a better judicial system.

Reversed and remanded with directions to quash the writ of prohibition, and to remand to Division “C”' of the County Court for proceedings consistent herewith.

BOYER, C. J„ and MELVIN, WOODROW M., Associate Judge, concur.


author: PIERCE, WILLIAM G, Associate Judge.

text:
    Gary D. HOCHMAN and Elyse S. Hochman, Appellants, v. LAZARUS HOMES CORPORATION, a Florida Corporation, Appellee.
    No. 74-1733.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 22, 1976.
    Reiseman & Buchbinder, Miami, for appellants.
    Ser & Keyfetz, Blatt, Udell, Alterman & Lasky, Freidin & Goldfarb, Miami, for ap-pellee.
    Before BARKDULL, C. J., HENDRY, J., and PIERCE, WILLIAM G, Associate Judge.
   PIERCE, WILLIAM G, Associate Judge.

This is an appeal by Gary D. Hochman and Elyse S. Hochman, plaintiffs in the trial court, from a final judgment dismissing with prejudice an amended complaint for damages.

The amended complaint alleges that in June of 1973, the Hochmans entered into a deposit receipt agreement with the defendant, Lazarus Homes Corporation, whereby Larazus Homes was to sell a single family residence to the Hochmans for the sum of $51,778.00. The agreement provided that the Hochmans would assume a mortgage of $40,642.40 placed by Lazarus Homes, bearing interest at 7.5 per cent per annum. Lazarus Homes obtained a mortgage on the property in the principal sum of $40,600.00, but at an interest rate of 8.5 per cent per annum. The complaint further alleges that the transaction was closed with the specific understanding that the Hochmans reserved the right to file an action for damages resulting from the difference in interest rates. The damages sought in the amended complaint are the additional interest payments and the diminished value of the property.

Lazarus Homes Corporation filed a motion to dismiss stating as some of the grounds that the amended complaint fails to state a cause of action; that the elements of damage were improper, and that the contract was accepted and the transaction was consummated and, therefore, the plaintiffs have waived their rights to rescind the contract. The motion was granted and the trial court entered its order dismissing the amended complaint with prejudice and final judgment in favor of the defendant. The order contains no grounds or reasons for dismissal.

On appeal, the Hochmans contend that the trial court erred in dismissing the amended complaint and in entering final judgment for the defendant. We agree. The rule is well established that, upon a motion to dismiss a complaint for failure to state a cause of action, all material allegations of the complaint are taken as true. Those allegations are then reviewed in light of the applicable substantive law to determine the existence of a cause of action. Peeler v. Independent Life and Accident Insurance Co., Fla.App. 1967, 206 So.2d 34, 36. Based upon the foregoing, taking the allegations of the amended complaint as true, we find it to be sufficient. Cf. Lungu v. Walters, Fla.App. 1967, 198 So.2d 99. The facts alleged in the complaint and supported by the agreement, a copy of which is attached to the complaint, state a cause of action. As to the ground of waiver raised in the motion to dismiss, we note the allegation in the amended complaint that the right to damages had been expressly reserved. Waiver is defined as an intentional relinquishment of a right. 12 Fla.Jur., Estoppel and Waiver, § 7. Therefore, that allegation, taken as true on the motion to dismiss, effectively negates a waiver.

The defendant also raised damages as a ground for its motion. A motion to dismiss is not a proper method of attacking a complaint that is insufficient only in that the elements of damage are improper or insufficiently alleged. Arcade Steam Laundry v. Bass, Fla.App.1964, 159 So.2d 915, 916. If the complaint states a claim upon which at least nominal damages may be awarded, then a motion to dismiss such a complaint should not be granted. Augustine v. Southern Bell Telephone & Telegraph Company, Fla.1956, 91 So.2d 320, 323.

Therefore, the defendant’s grounds being insufficient to sustain a motion to dismiss, the order of dismissal with prejudice and entering final judgment is reversed and the trial court is directed to proceed with the cause accordingly.

Reversed with directions.


author: PIERCE, WILLIAM C., Associate Judge.

text:
    SNEAD CONSTRUCTION CORPORATION, a Florida Corporation, Appellant, v. PARKWAY EAST, INC., an insolvent Florida Corporation, et al., Appellees.
    No. 74-1750.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 22, 1976.

      Horton, Perse & Ginsberg, William T. Moore, Miami, for appellant.
    Frank, Strelkow & Gay, Miami Beach, Malcolm H. Friedman, Coral Gables, for appellees.
    Before BARKDULL, C. J., HENDRY, ]., and PIERCE, WILLIAM C, Associate Judge.
   PIERCE, WILLIAM C., Associate Judge.

Snead Construction Corporation, plaintiff in the trial court, appeals an adverse order of dismissal with prejudice of its third amended complaint for failure to state a cause of action against the defendants who are Parkway East, Inc., J. T. Stewart Mortgage Company, Inc., and Abe Schiff, Robert L. Frank, John W. Roberts, Jr., Jack H. Stein, individually, and as directors and trustees of Parkway East, Inc.

Snead filed a lengthy complaint against the named defendants, alleging that Snead constructed a 100-unit apartment complex for defendant, Parkway East, Inc., for a basic contract price of $1,100,400; that during construction extra expenses were incurred at the request or with the authorization of, the defendants; that Snead signed an FHA cost certification with the understanding that the defendants would pay the balance owing on the construction contract, but that it was never paid; that defendant Stewart Mortgage Company negligently released the final loan funds to Parkway knowing that there was a dispute over these funds; that Frank, with intent to defraud, embezzled the funds in conspiracy with Roberts and Stein; that, in fact, these three paid themselves with the money and left Snead’s claim unsatisfied. Actual and punitive damages were sought.

Following Snead’s filing of a third amended complaint, the trial court dismissed with prejudice the claims against all defendants except Stein and Parkway East, Inc. As to these defendants, Snead was given leave to amend a fourth time, but with strict conditions :

“Said amended complaint shall be allegations as to all acts that took place prior to the 27th day of July, 1972, and such complaint shall be required to set forth with explicit and specific language that the Plaintiff corporation had performed any and all requisite conditions precedent; to show that the Plaintiff corporation was ready, willing, able and had complied with all the rules and regulations of the FHA and of the closing documentation, and that Plaintiff did perform according to such conditions; that in the absence of performance, the Plaintiff did notify each and every party of its failure or refusal to perform; that said failure and refusal relieved the Plaintiff corporation from executing any and all papers required of it at the time of closing.”

Snead refused to amend under these conditions, whereupon final judgment was entered in favor of" the defendants and this appeal ensued.

Snead contends, and we agree, that the trial judge erred in dismissing the third amended complaint and imposing the above requirements if it chose to amend a fourth time. The complaint, even if inartfully drawn, contains facts sufficient to indicate that a cause of action exists. Rule 1.-110(b), RCP, states that a complaint shall contain

“(1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief and (3) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded. Every complaint shall be considered to pray for general relief.

Since we find the plaintiff’s claims to be well pled, they should not have been dismissed. See Keller v. Eagle Army-Navy Department Stores, Inc., Fla.App. 1972, 256 So.2d 248; also see Hammonds v. Buckeye Cellulose Corporation, Fla.1973, 285 So.2d 7. It is to be noted that this decision deals only with pleadings and is not to be construed as a disposition on the merits.

Reversed and remanded with directions to reinstate the complaint as against all defendants.

Reversed.


author: HENDRY, Judge.

text:
    Shirley ERICKSON, Appellant, v. Arthur LIESTNER et al., Appellees.
    No. 74-1771.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 20, 1976.

      Wolfson, Diamond & Logan and Lawrence E. Major, Miami Beach, for appellant.
    Sam Daniels, Miami, Richard Hardwick, Coral Gables, for appellees.
    Before BARKDULL, C. J., HENDRY, J., and PIERCE, WILLIAM C, Associate Judge.
   HENDRY, Judge.

Appellant, plaintiff in the trial court, brings this appeal from a final judgment entered in her favor by the trial court pursuant to a jury verdict in an action for damages.

On September 16, 1972, appellant was riding as a passenger in an automobile being driven by her husband. The car in which appellant was riding was struck from the rear by a vehicle owned by the appellee Martin Olsen, operated by appellee Arthur Liestner, and insured by appellee Liberty Mutual Insurance Company, all defendants in the trial court. Appellant alleged in her complaint that, as a result of this collision, she received permanent bodily injuries, aggravation of a pre-existing medical condition, and that her capacity to earn was impaired. Although appellant in the complaint did not allege an amount as damages for medical expenses, her husband, co-plaintiff in the trial court, did allege, inter alia, such damages. After trial and pursuant to a jury verdict, final judgment was entered for appellant in the amount of $5,626.58. From this judgment, appellant brings her appeal.

Appellant’s basic ground on appeal is that the trial court erred in entering said judgment based on the jury’s verdict. In support of this ground, appellant contends that the jury in returning its verdict for $5,626.58, when considered in light of the evidence presented acted in an unreasonable and unjust manner, since this amount was only equal to the medical expenses allegedly incurred by her as a result of the collision.

The test to be applied in determining the adequacy of a verdict is whether a jury of reasonable persons could have returned the verdict. West v. Food Fair Stores, Fla.App. 1974, 305 So.2d 280; Cobb v. City of Miami, Fla.App. 1971, 254 So.2d 376. This test is simply stated but may be difficult to apply in a particular case.

In the instant appeal, the record shows that in 1964 appellant sustained injuries involving the same parts of her body as were alleged to have been injured in the 1972 accident. From 1964 to 1969 she was hospitalized eight times in six different hospitals for treatment of the injuries sustained in 1964. The record further shows that appellant, in the 1972 accident, sustained no visible injuries and her complaints of pain were subjective in nature. Evidence was presented to the trial court reasonably relating the 1972 injuries with the 1964 injuries.

In the case sub judice, the question of appellant’s injuries and any damages therefrom was one properly for the jury to decide. Appellate courts should be ever alert against the temptation to substitute their “verdict” for that of the jury. On the other hand, we must not refuse to act to relieve the injustice of either a grossly inadequate or excessive verdict.

Based on our review of the evidence in the record, all points in the briefs and arguments of counsel in the instant appeal, we cannot say that the verdict rendered could not have been returned by a jury of reasonable persons. One quite reasonable hypothesis is that the jury could have found that the medical expenses or any pain or suffering of appellant were not wholly attributable to the 1972 accident.

Therefore, the judgment appealed is affirmed.

Affirmed.

      . In an order dated February 19, 1975, pursuant to a motion to strike by appellees, this Court ordered the name of Kenneth Erickson, husband of appellant and co-plaintiff in the trial court, to be stricken from the assignments of error on appeal.


text:
    Betty L. PETERSEN, Appellant, v. Charles C. ERRICKSON et al., Appellees.
    No. 75-68.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
    Rehearing Denied Jan. 13, 1976.
   PER CURIAM.

Affirmed.


text:
    Anthony S. ITALIANO, Appellant, v. STATE of Florida, Appellee.
    No. 74-1176.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1975.
    Rehearing Denied Jan. 13, 1976.
   PER CURIAM.

Affirmed.


text:
    Joe NANGLE, Trustee, Appellant, v. Lawrence R. LAURENTI and Florence V. Laurenti, Appellees.
    No. 75-763.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1975.
    Rehearing Denied Jan. 13, 1976.
   PER CURIAM.

Affirmed.


text:
    Earle Kym DARBY, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1699.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
   Mandamus denied.


text:
    Loren James FRISBIE, Petitioner, v. CITY OF WEST PALM BEACH, Respondent.
    No. 75-310.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
    Rehearing Denied Jan. 13, 1976.
   PER CURIAM.

Certiorari denied.


text:
    Marcus GAYNOR, Petitioner, v. Louie L. WAINWRIGHT, as Secretary of the Department of Offender Rehabilitation, Respondent.
    No. 75-1542.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
   Habeas corpus denied.


text:
    George PETKOVIC, Appellant, v. STATE of Florida, Appellee.
    No. 75-397.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
    Rehearing Denied Jan. 13, 1976.
   PER CURIAM.

Affirmed.


text:
    Eugene S. MOORE, Appellant, v. Louis L. WAINWRIGHT, Director, Division of Corrections, Appellee.
    No. 75-1964.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1975.
   Habeas corpus denied.


text:
    Gilberto S. PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 75-2020.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1975.
   Habeas corpus denied.


text:
    BUILDERS INVESTMENT GROUP, Appellant, v. UNITED MISSOURI BANK OF KANSAS CITY, N.A., Appellee.
    No. 75-1041.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
   PER CURIAM.

Affirmed.


text:
    Julian C. GARR, Appellant, v. CITY NATIONAL BANK OF MIAMI, Appellee.
    No. 75-227.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
   PER CURIAM.

Affirmed.


text:
    Alfred C. RAFFO, Appellant, v. Zelda Habif RAFFO, Appellee.
    No. 75-181.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
   PER CURIAM.

Affirmed.


text:
    Gail RATNER, Appellant, v. Audrey RATNER, wife, Appellee.
    No. 75-1048.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
   PER CURIAM.

Affirmed.


text:
    Harry SHAPIRO, Appellant, v. BROOKE DISTRIBUTORS, INC., Appellee.
    No. 75-222.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
   PER CURIAM.

Affirmed.


text:
    Galdstone YOUNG, Appellant, v. Anna Louise YOUNG, Appellee.
    Nos. 75-1143, 75-1247 and 75-1252.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
   PER CURIAM.

Affirmed.


text:
    AMERICAN AGRONOMICS CORPORATION, a Florida Corporation, Appellant, v. Kenneth D. ROSEN, Appellee.
    No. 75-1270.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Thomas James BUTTERFIELD, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1319.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    CITY STORES COMPANY, d/b/a Richards, and Travelers Insurance Company, etc., Appellants, v. Gussie PERLMUTTER and Morris Perlmutter, Appellees.
    No. 75-1119.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Vernon Thomas GAINER, Appellant, v. Barbara GAINER, Appellee.
    No. 75-1156.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Raymond K. GEISEL et al., Appellants, v. HOUSING CORPORATION OF AMERICAN, INC., and Leonard Treister, Appellees.
    No. 75-1083.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    GELFAND ROOFING COMPANY, Appellant, v. CENTEX HOMES, INC., a Nevada Corporation, Appellee.
    No. 75-985.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Harriett GYSON, Appellant, v. Samuel Jack GYSON, Appellee.
    No. 75-1082.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


author: PER-CURIAM.

text:
    Samuel Jack GYSON, Appellant, v. Harriett GYSON, Appellee.
    No. 75-1059.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER-CURIAM.

Appeal dismissed.


text:
    Clinton JOHNSON, Appellant, v. Hazel B. JOHNSON, Appellee.
    No. 75-1016.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Albert Charles LAZZARO, Appellant, v. Dianne Marie LAZZARO, Appellee.
    No. 75-1135.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Anne FLEMING, Appellee.
    No. 75-1100.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Bernard MOSKOWITZ, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1284.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Eduardo Vincente PINEIRO, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1308.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Lidio RIVES, Appellant, v. Arnolds P. LEEDS, Appellee.
    No. 75-1359.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Marshall K. STOLL and Diana Stoll, his wife, Appellants, v. Ronald D. MAHAN et al., Appellees.
    No. 75-1289.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Sandra TROYANOS, Appellant, v. George AUMAITRE, Appellee.
    No. 75-1137.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Jose D. VELEZ, Appellant, v. Mateo DIAZ, Appellee.
    No. 75-1274.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Hansel Quinsetta ALFORD, Petitioner, v. Malcolm E. BEARD, Sheriff, Respondent.
    No. 75-1783.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 1975.
   Habeas corpus denied.


text:
    Gerald FLETCHER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1455.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1975.
   Appeal dismissed.


text:
    Vernon PEEPLES, Appellant, v. Lawrence R. LAURENTI and Florence V. Laurenti, his wife, Appellees.
    No. 75-1295.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1975.
   Appeal dismissed.


text:
    Sharon Ann COX, Appellant, v. Robert R. COX, Appellee.
    No. 75-398.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
    Rehearing Denied Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Harold E. PARRIS and Marilyn K. Parris, Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee.
    No. 74-1337.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
    Rehearing Denied Jan. 13, 1976.
   PER CURIAM.

Affirmed.


text:
    BEACH RESORTS, INC., Appellants, v. DFS, INC., et al., Appellees.
    No. 74-1448.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1975.
   Appeal dismissed.


text:
    Franklin J. HOBBS, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 75-1526.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1975.
   Habeas corpus denied.


text:
    Johnny HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1690.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1975.
   Appeal dismissed.


text:
    KBC DEVELOPMENT CORPORATION, a Florida Corporation, et al., Petitioners, v. J. Ed STRAUGHN, as Executive Director of the State of Florida, Respondent.
    No. 75-1595.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1975.
   Certiorari dismissed.


text:
    STATE ex rel. Darrell Edwin HOY, Relator, v. Honorable Jack PAGE and Honorable Harry W. Fogle, Circuit Judges, Criminal Division of the Sixth Judicial Circuit of the State of Florida In and For Pinellas County, Respondents.
    No. 75-1802.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1975.
   Prohibition denied.


text:
    Willie WALKER, Sr., Petitioner, v. STATE of Florida, Respondent.
    No. 75-1776.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1975.
   Habeas corpus denied.


text:
    William T. COLEMAN, Jr., et al., Appellants, v. Palmer W. COLLINS et ux., Appellees. Sherman E. PHILLIPS et al., Appellants, v. Palmer W. COLLINS et al., Appellees.
    Nos. 75-454, 75-1025.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
   PER CURIAM.

Affirmed.


text:
    Lawrence HUNTLEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-40 and 75-41.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Rehearing Denied Jan. 13, 1976.
   PER CURIAM.

Affirmed.


text:
    Shia BEN-HUR and Mary K. Zurlo, Administratrix of the Estate of Dominick D. Zurlo, Appellants, v. Robert C. MALT, Appellee.
    No. 75-1683.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal dismissed.


text:
    Joseph A. De MARIA, Petitioner, v. Jim GRAHAM, Respondent.
    No. 75-2040.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Certiorari dismissed.


text:
    Farrell W. CURRAN, Appellant, v. Nancye K. CURRAN, Appellee.
    No. 75-449.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal dismissed.


text:
    Gregory D. BOUL, Appellant, v. STATE of Florida, Appellee.
    No. 75-1501.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Palm Beach County; Robert S. Hewitt, Judge.

Appeal dismissed.


text:
    Robert D. BROOKS and Thelma D. Brooks, Individually, and as husband and wife, Appellants, v. Alvin H. COHEN et ux., Appellees.
    No. 75-1189.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Seminole County; Roger F. Dykes, Judge.

Appeal dismissed.


text:
    George Prince BROWN, a/k/a Joe Louis Edwards, Appellant, v. STATE of Florida, Appellee.
    No. W-81.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Dallas Monroe EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. Y-355.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Charles P. FAUCETT, Sr., Appellant, v. Mary Ann FAUCETT, Appellee.
    No. X-461.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Y. Cid FERNANDEZ, Appellant, v. MANASOTA BANK, a Florida Banking Corporation, et al., Appellees.
    No. 75-972.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.
   Appeal quashed.


text:
    GRISSOM REALTY AUCTION COMPANY, INC., a Florida Corporation, Appellant, v. Jack FARRIS et al., Appellees.
    No. Y-188.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Maryalice C. HANLON, Appellant, v. SUN BANK OF EAST ORLANDO, N.A. and Orlando Carpet Center, Inc., et al., Appellees.
    No. 75-2029.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Orange County; William C. Gridly, Judge.

Appeal dismissed.


text:
    Donald I. HEISLER, Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Appellee.
    No. 75-2063.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Habeas corpus denied.


text:
    David KERBEN, Appellant, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, a foreign corporation, Appellee.
    No. 75-1791.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Orange County; Frederick Pfeiffer, Judge.

Appeal dismissed.


text:
    Earl S. KRALL, Appellant, v. STATE of Florida, Appellee.
    No. Z-41.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Sheila LEVIN, Appellant, v. Alfred C. LEVIN and Corrine R. Levin, Appellees.
    No. 75-2154.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Palm Beach County; John R. Beranek, Judge.

Appeal dismissed.


text:
    James Steddo McDOLE, Appellant, v. STATE of Florida, Appellee.
    No. V-490.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    MAR-LO-ANN, INC., and Barbara Ann Nielsen, Appellants, v. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION OF HOLLYWOOD, a United States of America Corporation, Appellee.
    No. 75-1895.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Broward County; Eugene H. Fischer, Judge.

Appeal dismissed.


text:
    John C. MILLS, Appellant, v. Martha Janet MILLS, Appellee.
    No. 75-2094.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Palm Beach County; John R. Beranek, Judge.

Appeal dismissed.


text:
    Virgil Izzy MOORE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Y-429.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    NATIONAL BUILDING SYSTEMS, INC., Appellant, v. DELTA TERRAZZO, INC., Appellee.
    No. 74-1009.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Seminole County; Virgil B. Conkling, Judge.

Appeal dismissed.


text:
    John F. NIXON d/b/a Nixon Construction Company, Appellant, v. George A. COSTA et al., Appellees.
    No. 75-991.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, St. Lucie County; Wallace Sample, Judge.

Appeal dismissed.


text:
    RUM BOTTOMS, INC., a Florida Corporation, Appellant, v. John M. SIMMONS et al., Appellees.
    No. 75-2149.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Broward County; James McCauley, Judge.

Appeal dismissed.


text:
    William F. RYDER, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 75-2090.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Habeas corpus denied.


text:
    William T. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 74-753.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Orange County; B. C. Muszynski, Judge.

Appeal dismissed.


text:
    The STATE of Florida ex rel. Tommy Lewis MURRELL, Relator, v. The Honorable Natalie BASKIN, as Judge of the Circuit Court of the Eleventh Judicial Circuit In and For Dade County, Florida, Respondent.
    No. 75-1967.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    Elizabeth STRAILE a/k/a Elizabeth Dodge, Appellant, v. STATE of Florida, Appellee.
    No. 75-1744.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Palm Beach County; James R. Stewart, Jr., Judge.

Appeal dismissed.


text:
    Gene Patrick THURSTON, Appellant, v. STATE of Florida, Appellee.
    No. 75-1070.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Broward County; Robert W. Tyson, Jr., Judge.

Appeal quashed.


text:
    Eliphis WAY, Appellant, v. STATE of Florida, Appellee.
    No. Y-305.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Jerry WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1818.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.
   Mandamus denied.


text:
    Melva J. WILHELM, as Executrix of the Estate of E. A. Prouty, Deceased, Appellant, v. John HILLHOUSE and Lena Hillhouse, his wife, Appellees.
    No. 75-882.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1975.
   Appeal from Circuit Court, Palm Beach County; John R. Beranek, Judge.

Appeal dismissed.


text:
    Vito DAVANZO and Sportmen’s Race Stable, Appellants, v. CALDER RACE COURSE, INC., a Florida Corporation, Appellee.
    No. 75-1641.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Joel LIPSCHITZ, Appellant, v. MIDDLESEX MUTUAL INSURANCE COMPANY, Appellee.
    No. 75-1638.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Abraham MIGDAHL, Appellant, v. The STATE of Florida, Appellee.
    No. 75-712.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Stephen Joseph RYAN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1400.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1975.
   Appeal from Circuit Court, Palm Beach County; J. Stewart, Judge.

Appeal dismissed.


text:
    STATE of Florida ex rel. Henry Silas FAXON, Relator, v. Hon. Louis WEISSING, as Judge of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Respondent.
    No. 75-2051.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1975.
   Prohibition dismissed.


text:
    FUTURAMA CARPET, INC., Appellant, v. Billy D. LAUDERDALE and Joan E. Lauderdale, his wife, Appellees.
    No. 75-1378.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Mefit META, by and through his father and natural guardian, Izer Meta, Appellee.
    No. 75-1621.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Recie R. McHONEY, Appellant, v. NATIONAL STANDARD LIFE INSURANCE COMPANY, a Florida Corporation, Appellee.
    No. 75-1316.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1976.
   Appeal dismissed.


text:
    Don and Gladys SENEVEY, Appellants, v. Robert B. HUMBERT, Jr., et ux., Appellees.
    No. 75-598.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1976.
   Appeal dismissed.


text:
    Ernest TOWNSEND, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-1514.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1976.
   Appeal dismissed.


text:
    Ernest Lee WILLIAMS, a minor, by and through his natural parent and next friend, Mary Ellen Young, and Mary Ellen Young, individually, Appellants, v. George A. MORRIS, M.D., Appellee.
    No. 75-1576.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1976.
   Appeal dismissed.


author: SMITH, Justice,

text:
    In the Interest of Randy Joe WATKINS, a minor.
    No. 48554.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Charles H. Ramberg, Brandon, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Ca-joleas, Sp. Asst. Atty. Gen., Jackson, for appellee,
   ON PETITION FOR REHEARING

Before PATTERSON, SMITH and BROOM, JJ.

SMITH, Justice,

for the Court:

An appeal to this Court is sought by Randy Joe Watkins, a seventeen year old minor, from an order of the Youth Court of Rankin County certifying him to the Circuit Court of that county for prosecution on felony charges of (1) aiding and abetting a burglary and (2) manufacturing marijuana. The case was presented to this Court on briefs and oral argument prior to the decision by the United States Supreme Court on May 27, 1975, styled Breed, Director, California Youth Authority v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L. Ed.2d 346.

A reexamination of the record in the light of Breed reflects that the hearing accorded Watkins by the youth court was not an adjudicatory hearing but was a “transfer” hearing only, and was based upon a petition filed by the county prosecutor asking the youth court to transfer and certify Watkins to the circuit court.

No adjudication by the youth court of Watkins’ guilt or innocence of such alleged crimes was sought or had. The youth court judge, in the main, limited proof to testimony that the crimes had been committed and that Watkins had been arrested in connection with them.

The opinion in Breed distinguishes between the two types of hearings but leaves unanswered what type of investigation justifies the youth court in ordering a transfer.

Breed seems to contemplate that the State make an election, at the time proceedings are initiated, as to whether only a transfer is sought rather than the retention of jurisdiction by the youth court and a full adjudication in the case. In Breed, the Court said:

We require only that, whatever the relevant criteria, and whatever the evidence demanded, a State determine whether it wants to treat a juvenile within the juvenile court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty rather than subject him to the expense, delay, strain and embarrassment of two such proceedings.

In either case, the Mississippi statute requires a “full investigation” by the youth court:

If a child thirteen years of age or older is charged with an offense which would be a felony if committed by an adult, the court, after full investigation, may, in its discretion, retain jurisdiction and proceed with the case as a delinquency case, or certify such child for proper criminal proceedings to any court which would have trial jurisdiction of such an offense if committed by an adult, and may fix the amount of bail, except that the circuit court shall have exclusive jurisdiction of such child if he be charged with any crime which, upon conviction, is punishable by life imprisonment or death. [Mississippi Code Annotated section 43-21-31 (1972)].

In a review of the record it appears beyond question that the youth court did not conduct “an adjudicatory hearing” in this case within the meaning of Breed. Moreover, it is clear that no “full investigation” was conducted by the youth court as required by the Mississippi statute as a condition precedent to entering an order of transfer.

This question now presents itself: Is an appeal to this Court permissible from a youth court order that extends no further than “waiving” or declining to assume jurisdiction in a criminal matter involving a minor? In other words, is such an order, entered in a transfer proceeding where adjudication is not sought or proposed, a final judgment or decree from which an appeal to this Court will lie? The youth court having declined jurisdiction, no prosecution for the alleged felonies can take place until and unless an indictment is returned by the grand jury. Moreover, if indicted and convicted the defendant may then appeal and assign for reversal every ground that he has, including an assertion of his claim that he has been placed in double jeopardy.

We hold that no appeal to this Court lies from a youth court order that does no more than decline jurisdiction and certify the case to the circuit court. Otherwise in youth court cases two appeals to this Court would be possible: one from the order of transfer and the other from the conviction in the circuit court. Such a result would be intolerably burdensome and would defeat the purpose of the act through unacceptable delay in final disposition of the case.

Considerable discretion must be allowed the Youth Court Judge in determining whether, in a transfer hearing, the transfer should or should not be made. And while the investigation required by Mississippi Code Annotated section 43-21-31 (1972), is essential to the validity of the transfer order, a direct appeal to this Court will not lie from such an order. Adequacy of the youth court investigation may be challenged by motion to quash an indictment returned pursuant to the transfer, and an adverse ruling of the circuit court on such a motion may be assigned as error on appeal to this Court if a conviction follows. However, a decision of the youth court to transfer, made after investigation, will not be disturbed by this Court in the absence of a clear showing of an abuse of discretion. In order to preserve the question on appeal, the motion to quash an indictment, on the ground that the youth court investigation was inadequate, must he filed and presented prior to trial of the case on the merits in the circuit court, and not afterwards.

The decision of the United States Supreme Court in Breed having been published subsequent to the proceedings of the youth court and to the original presentation of the case in this Court, and although we hold that an appeal from a youth court transfer order to' this Court will not lie, and the appeal in this case must be dismissed, nevertheless the case will be remanded to the youth court for the purpose of the full investigation required by statute in that court and for such further proceedings as may be appropriate, not inconsistent with this opinion or the pronouncements of the United States Supreme Court in Breed.

The case was considered by a conference of the Judges en banc.

Appeal dismissed and case remanded to youth court.


author: PATTERSON, Justice:

text:
    Alden McNAIR et al., Complainants-Appellants, v. CAPITAL ELECTRIC POWER ASSOCIATION et al., Defendants-Appellees, Charles R. Riddell and W. E. Harreld, Jr., Intervenor-Defendants-Appellees.
    No. 48359.
    Supreme Court of Mississippi.
    Dec. 22, 1975.

      John K. Keyes, Collins, Daniel, Coker, Horton, Bell & Dukes, Thomas H. Suttle, Jr., Jackson, for complainants-appellants.
    Case, Montgomery & Smith-Vaniz, Canton, Watkins & Eager, Jackson, Robert L. Goza, Canton, for defendants-appellees.
    Before PATTERSON, INZER and SUGG, JJ.
   PATTERSON, Justice:

This appeal arises from the Chancery Court of the First Judicial District of Hinds County. The court at the conclusion of a fifteen-day trial excluded the evidence of the appellants and dismissed their bill of complaint. The suit, a derivative action for the benefit of the complainants, other member-owners and the Association, alleged a cause of action by member-owners of Capital Electric Power Association against its directors for constructive fraud.

The original bill of complaint was filed on December 8, 1972; a demurrer was interposed ; the bill was amended; a preliminary injunction was denied; a motion to strike the amendment was filed; Mississippi Power & Light Company was brought in as a defendant; additional demurrers were filed; Mississippi Power & Light Company was dismissed; the Association was made a defendant instead of a complainant; and thereafter a second amended and supplemental bill of complaint was filed. The complainants (now appellants) are some of the member-owners of the Association. The defendants (now appellees) are the directors of the Association, the Association, and Charles R. Riddell and W. E. Harreld, Jr., intervening member-owner defendants, favoring a vote by the membership.

The bill of complaint sought:

1. A temporary injunction restraining each of the defendants from performing any act toward consummating a sale of the Association to Mississippi Power & Light Company under a proposed “purchase agreement.”

2. An adjudication that the special meeting of the membership of the Association on December 21, 1972, was void, that no voting thereat, whether in person or by proxy, was legally effective and that the signing of the “purchase agreement” by the Association was invalid.

3. An adjudication that the directors/defendants by their conduct as fiduciaries to the member-owners of the Association abdicated their duties as directors and that their offices be declared vacant and they be enjoined from acting in the capacity of directors.

4. The appointment of a commissioner to manage the Association under the court’s direction until a new board of directors could be installed.

5. In due course the dismissal of the commissioner and the placement of the affairs of the Association in the hands of the new board of directors to be managed in accord with law.

6. A report by the complainants of their costs and expenses incurred by this suit and that the Association be directed to reimburse the complainants for the same.

7. The retention of jurisdiction by the court during the course of litigation until all matters involved were finally determined by an adjudication upon the merits.

The foregoing prayers of the bill of complaint were put in issue by the defendants’ answers.

The record consists of 24 volumes containing 4,752 pages of pleadings and testimony. However, the record has been reduced to 254 pages by abridgment for appeal. The ultimate question, as we view it, is whether the chancellor correctly decided the factual issues.

The appellants have filed fifteen assignments of error. For brevity we will combine similar assignments and discuss the arguments presented by the appellants with the appropriate evidence for each rather than engage in a prolonged statement of facts. However, an introductory statement of the case is necessary for its understanding.

Capital Electric Power Association was a nonprofit cooperative membership corporation engaged in the transmission, distribution and sale of electricity to its member-owners at cost. It furnished these services to members in Hinds, Warren, Claiborne, Copiah, Rankin, Madison and Leake Counties pursuant to the Electric Power Association enactments, Mississippi Code Annotated section 77-5-201 et seq. (1972).

By statute the Association was owned and operated by its members-consumers. They elected directors for a three-year term in accord with Mississippi Code Annotated section 77-5-221 (1972) and those elected comprised the board of directors. The board supervised the operation and management of the Association. The area served was having rapid growth in residential, business and industrial customers. The Association held an exclusive “Certificate of Public Convenience and Necessity” in the service area of its member-owners under the Public Utility Act of 1956. It was one of the fastest growing electric power associations in the state with expected expansion from its 16,000 members at the time of the suit to 40,000 or 45,000 members within the decade. The annual revenues were expected to increase within the period from $4,000,000 to about $20,000,000.

The appellants charged the board of directors with secret negotiations with Mississippi Power & Light Company (MP&L) to sell the Association. They alleged nothing was known of the bargaining until November 27, 1972. On November 28, 1972, information concerning the proposed sale was mailed to the member-owners. The contents of the mail packets were:

1. A bound pamphlet containing (a) a printed letter from T. L. James, president of the Association, to each member advising of a proposal by MP&L to purchase the electric system and other properties of the Association for $10,500,000, (b) notice from H. W. Wolcott, secretary of the Association, that the directors had called a special meeting of the members at Clinton, Mississippi, on December 21, 1972, to consider action upon the proposal, advising that the member need not attend in person, but could vote by proxy through the mail, and (c) a copy of the proposed “purchase agreement;”

2. A pamphlet entitled “Explanation of Purchase Agreement;”

3. A “proxy” form empowering, upon completion, the board of directors or any one of them to cast the member’s vote either “for” or “against” the sale;

4. An addressed and stamped envelope in which to return the proxy.

This material was received by members of the Association on November 29 or 30, 1972.

Thereafter, the appellants were elected as a “steering committee” by a number of the member-owners called “Group of Concerned CEPA Members” to seek, on behalf of all members with similar views, redress of the wrongs they maintained were being inflicted upon them and the Association.

The complainants maintained the actions and inactions of the directors in connection with the proposed sale of the Association to MP&L, in cumulative effect, constituted a fraud upon their rights as member-owners of the Association.

The trial court was of the opinion the board of directors was not guilty of either actual or constructive fraud, the submission of the purchase offer by MP&L to the vote of the membership was not unreasonable, the meeting of December 21, 1972, was not improper, and, for whatever reason, more than three-fourths of the members voted, the result being in excess of 50% of the votes cast to consummate the sale. The court held it was unable to find any reason from the evidence why that determination should be overturned. It noted there was no proof of loss to any member-owner unless it was by way of anticipated future profits and nothing to show any or what would be realized by any member.

The appellants first argue that all facts which appellants’ evidence fairly tends to establish, with all reasonable inferences therefrom, must be taken as true at the close of the complainants’ case and if either establishes the complainants’ cause of action, a verdict for the defendants should not be granted, citing Cameron v. Hootsell, 229 Miss. 80, 90 So.2d 195 (1956). They further contend in reviewing the evidence on appeal, this Court must consider as true the complainants’ evidence and the reasonable inferences therefrom. Williamson v. Inzer, 239 Miss. 707, 125 So.2d 77 (1960). From this it is argued the appellants’ evidence and inferences therefrom must be assumed as true for purposes of this appeal. We agree with this legal concept, but find a stipulation of the parties that all testimony, exhibits and pleadings considered during preliminary hearings of the cause would be a part of the record and considered as evidence on the hearing on the merits. It is, therefore, before us.

Moreover, the complainants called as adverse witnesses each of the defendant-directors and this was followed by direct examination of the directors’ and the intervenor-defendants’ attorneys. The motion of the defendants for judgment when the complainants had rested their case on the final hearing was thus for consideration on the entire record and was not limited to the sole testimony of the complainants. This brings into focus the well-established rule that a chancellor will not be reversed upon a finding of fact unless this Court can say that he was manifestly wrong in his finding. Donohoe v. Aultman, 240 Miss. 304, 127 So.2d 395 (1961). We presently forego elaboration upon the sufficiency of the facts to support the trial court opinion since subsequent arguments bring much of it into view. Suffice it to say, for the moment, there was ample evidence to support the trial court’s conclusions.

By Proposition II the contention is made that the directors of the Association were statutory trustees for the membership and were guilty of constructive fraud by violating their fiduciary duty. The Laws of 1936, Chapter 184, brought forward as Mississippi Code Annotated section 5463 et seq. (1942) and again as Mississippi Code Annotated section 7.7-5-201 et seq. (1972) created the “Electric Power Association Law.” Throughout references are made to the board of directors, and Section 77 — 5— 223 authorized them to conduct the corporate business.

Section 77-5-221 specifies that the directors must be members of the corporation and prohibits compensation for their services. Section 77-5-237 delineates the method of disposing of corporate property, providing initially that “No corporation may, unless authorized so to do by the votes of at least a majority of its members, sell, mortgage, lease or otherwise encumber or dispose of any of its property . .” concluding with “All such persons shall be deemed to have a beneficial interest in the affairs of the corporation insofar as the sale or lease of the property of the corporation is concerned and the members of the board are hereby declared to be the trustees of such persons with respect thereto.” (Emphasis added.) We conclude the legislature’s intention was to make the board of directors trustees for purposes of sale even though compensation was not authorized for this responsibility.

The appellants next address the theme of there being a violation of the fiduciary duties imposed upon the trustees for the disposition of the property. Once the offer of purchase was made the trustees placed it before the member-owners in accord with Section 77-5-237. They made no recommendation as to its acceptance or rejection. The book value of the assets was set forth in the literature, but no independent survey of the' Association’s worth was made nor were the member-owners informed of MP&L’s proposal, in the event the purchase was made, that the trustees of the Association would compose an “advisory committee” to MP&L for twelve years and be compensated $200 per month each during such interval.

In Restatement (Second) of Trusts, section 173 (1959), we note that a trustee has the duty to the beneficiary, upon request, to furnish at reasonable times complete and accurate information as to the nature and amount of trust property.

. . . In dealing with the beneficiary on the trustee’s own account, however, he is under a duty to communicate to the beneficiary all material facts in connection with the transaction which the trustee knows or should know . . . Even if the trustee is not dealing with the beneficiary on the trustee’s own account, he is under a duty to communicate to the beneficiary material facts affecting the interest of the beneficiary which he knows the beneficiary does not know and which the beneficiary needs to know for his protection in dealing with a third person with respect to his interest. Thus, if the beneficiary is about to sell his interest under the trust to a third person and the trustee knows that the beneficiary is ignorant of facts known to the trustee which make the interest of the beneficiary much more valuable than the beneficiary believes it to be the trustee is under a duty to the beneficiary to inform him of such facts.

It is urged that the action of the trustees in submitting the offer of purchase to the membership, without accurate information of the property’s value, was a gross breach of duty. Webb & Knapp, Inc. v. Hanover Bank, 214 Md. 230, 133 A.2d 450 (1957), is cited in illustration of the point. In it the trustees of an estate attempted to sell a large tract of land near Washington, D.C. They published advertisements on the sale and named the price they expected to receive. The Court stated:

“. . . The discretion thus reposed in the trustees was not a mere arbitrary discretion, but a discretion coupled with a trust, and to be exercised solely for the benefit of the cestuis que trust. It was their duty, therefore, in making a sale of the property to act in a prudent and business-like manner, with a view to obtain as large a price as might, with due diligence and attention, be fairly and reasonably obtainable under the circumstances. In other words, to exercise that diligence and caution which a careful and prudent owner would observe in the sale of his own property. If the sale be made under circumstances of haste and imprudence, or if the trustees fail in reasonable diligence in inviting competition, or adopt an injudicious and disadvantageous mode of selling the property; a Court of Equity ought not ratify the sale . .” See, also, Callaway v. Hubner, 99 Md. 529, 58 A. 362. (214 Md. at 242-43, 133 A.2d at 456)

Present applicability of the case is entreated since the submission of the purchase proposal, including its price, carried with it' the corresponding responsibility to exercise great diligence in determining that the amount was properly ascertained and was thus reasonable. By the appellants’ words this was the key to everything that was to follow.

There is no doubt that the directors were trustees and that the duties of a fiduciary were imposed upon them. The major issue is whether there was a violation, or such violation, as would constitute an actual or constructive fraud in law.

The provisions of Section 77-5-237 authorize a majority of the members of the Association to sell the property and system belonging to it. The authorization is exclusive since it is not subject to ratification or confirmation by the board of directors or others. The question of fraud must then be determined upon the narrow basis of whether the trustees were required to submit the offer to the membership as presented to them, or whether they violated their trust by submitting it without further investigation of the amount offered. Inherent in the question is the fact that the offer of MP&L was neither solicited nor sought by the directors, but was made without their previous knowledge.

The contention is made initially that the trustees did not negotiate with MP&L and thus breached their duty. We find no evidence indicating negotiations with MP&L nor a request for the trustees to do so, but rather that the offer was submitted to the members as it was received. Additionally, the statute, as we view it, does not grant discretion to the trustees to withhold or to submit an offer of purchase dependent upon a price satisfactory to the trustees. We conclude they violated no fiduciary duty by not engaging in negotiations with MP&L for a higher price.

The offer of MP&L was for $10,500,000 plus an additional' $1,500,000 for accounts receivable, cash on hand, etc., a total of $12,000,000, which was accompanied by a request that' it be submitted to the members for a vote. It also contained guarantees of MP&L that it would work to the improvement of the economic development of the area, that it would maintain effective electrical service, and would protect all employees of the Association with no loss of pay, seniority or tenure. It is contended the trustees violated their duty because they had available information demonstrating the value of the system was greater than the offer of MP&L and yet no inquiry was made concerning the amount, and the figure submitted to the members was deceptive because the trustees knew the “book value” was incorrect.

It is true that the book value of the assets of the Association was set forth in the literature distributed to the members and that no independent survey of the system’s worth was conducted. The record reveals an offer of purchase was made in March 1969 by MP&L at which time an economist of great experience conducted a survey to determine whether or not the system should then be sold. The result of this survey, it is contended, was called to the attention of the trustees which showed the book value was incorrect inasmuch as there was then invested $2,500,000 (approximately) more in the plant system than was reflected by the records and a present projected system value of $4,000,000 (approximately) more than the replacement cost calculated from the records.

It is also urged that a study of the system was made by Patterson & Dewar, an engineering firm, which reflects from the business and financial analysis they prepared that the worth and prospects of the system to a business man were just “pure gold.” Other items of value, it is maintained, were not considered by the trustees and not communicated to the members as the “Certificate of Public Convenience and Necessity” held by the Association, all in violation of their trust duties. The omission plus the submission of the book value of $7,500,000 was strenuously argued to be a fraud.

We think, however, there must be considered in conjunction with the argument relating to values the uncontradicted evidence that the Association’s physical system at the time was inadequate, or soon would be, for the burgeoning area it served and also that it was dependent upon MP&L for its source of energy. The Association was thus confronted with a serious decision, not unusual in the utility business, of securing enormous loans to update its facilities to the demands of the day for electric energy or to raise its rates to .the consumer, neither particularly palatable. The value must also be considered from the viewpoint of the improbability of others being interested in its purchase due to the nature of the business, its enormity, its dependence upon MP&L for its source of energy, all as considered from the eyes of the lay members not conversant with the intricacies of the utility business. The rate of return permitted by the Public Service Commission to MP&L must also be considered. This was based upon a book value of $7,500,000, the product of independent accountants, which could not be unilaterally adjusted upward by either the Association or MP&L. This was a major factor for consideration of the sale price because it would control the earning power of the prospective purchaser since the rates would be based thereon.

The merits of the proposed sale were the object of intense discussion by all levels of the local news media. Both proponents and opponents publicly voiced their views prior to the election. Letters from T. L. James, president of the Association, to the members urged their consideration of the proposition prior to making a decision. As mentioned, the fact of offer and the proposal were mailed to each of the members. The opinions of the experts valued the system from $7,500,000 to $30,500,000. When all of these factors are considered, we conclude, as we think we must, that the offer as made and accepted was not so inadequate, if at all, that it constituted a legal' fraud. We, therefore, cannot state that the chancellor was manifestly wrong in his finding that the board of directors, as trustees, did not violate their fiduciary duties to the member-owners of the Association.

Assuming, but not deciding, that the monthly payment of $200 to each of the trustees for twelve years, if the sale was consummated, for their duties as an advisory committee to MP&L was improper because it was withheld from the members, we, nevertheless, cannot determine this influenced the vote of the membership since the record is devoid of any evidence to that effect. Neither can we indulge the conjecture that the offer influenced the trustees to submit the proposal to the membership since the proposal was accompanied by a request for submission and since, by statute, the power of sale rested within that body. Moreover, the outcome of the suit must turn upon the evidence of the record. We conclude from it that the amount offered for the Association’s system, as stated, and accepted by vote of its members, was adequate under the circumstances.

The foregoing conclusions are dependent upon the validity of the election to determine whether to sell or not to sell. The by-laws of the Association were amended on November 20, 1972, by the directors to authorize voting by proxy which is permitted by Section 77-5-227. See also Dixie Electric Power Ass’n v. Hosey, 208 So.2d 751 (Miss.1968).

The minutes of the board of December 21 and 22, 1972, reflect that two separate and independent firms of certified public accountants were appointed to receive the proxies, conduct the balloting, count the ballots and certify the counts to the directors. Attached to the minutes was the official report of the executive committee of the results of the election. It shows that of a total membership of 15,773 there were 8,458 votes cast for the sale and 3,589 votes against. The meeting for the election was attended by no more than 250 members, the remaining votes cast being by proxy.

The by-laws of the Association state that either 5% of the total membership (789 members) or 1000 members, whichever is less, has to be present to constitute a quorum at a special meeting. Over 12,000 members cast their ballots, either by proxy or in person, on the proposed sale. The question develops of whether a quorum in a special meeting of the members can be constituted by both those present and those voting by proxy.

Section 77-5-223 permits the board of directors to “ . . . make its own rules and regulations as to its procedure. . . . ” In accord with this amendment the members voted individually and by proxy. The proxy voters were considered with those voting individually to compose a quorum. This is evidenced by the certification by the secretary of the board that over 1000 members were present, either in person or by proxy. There was no objection to the quorum statement at the time of the meeting. We conclude that a quorum may be constituted in an association, as it may be in other corporations, by both the members present and those voting by proxy. Duffy v. Lott, 17 Del.Ch. 376, 152 A. 849 (1930), is persuasive to this view, particularly since no cases are cited to the contrary. Indeed, this appears to be normal procedure in business corporations and is authorized by statute. Miss.Code Ann. § 79-3-61 (1972).

Moreover, we note that the appellants also engaged in gathering members’ votes by proxy for the election. We conclude there was no irregularity in the quorum count and that it was sufficient to constitute a lawful meeting.

It is next contended that the appellants were unable to voice their opposition to the sale at the December 21 meeting, thereby invalidating it. The president called the meeting to order, the secretary certified a quorum was present, and then the board of directors departed the meeting hall. They returned only to insure that everyone present had an opportunity to vote. There is testimony they did not intend or permit the meeting to become a forum for public debate and discussion of MP&L’s offer. From our review we cannot determine that this in any way impinged upon the election, denied a fair vote or an accurate count of the ballots cast. As mentioned, the issue had received much notoriety via the news media, public discussion and debate, and doubtless lively private conversation as well. In our opinion the actions taken in no way prejudiced the appellants, but rather contributed to an efficient and orderly election.

We have reviewed in detail all other assignments of error, including the evidence offered by the complainants concerning an offer by MP&L to purchase in 1969 which was rejected by the trial court, and from our review and study we are of the opinion that they are without merit.

We conclude, as did the chancellor, that for whatever reason a majority of the members cast their votes in favor of the sale and we perceive no valid reason from the record why the majority’s wishes should be overturned.

Affirmed.

RODGERS, P. J., and SMITH, WALKER and BROOM, JJ., concur.

GILLESPIE, C. J., and ROBERTSON, J., took no part.


author: SUGG, Justice.

text:
    SANDERSON FARMS, INC. v. STATE HIGHWAY COMMISSION.
    No. 48372.
    Supreme Court of Mississippi.
    Oct. 27, 1975.
    As Modified on Denial of Rehearing Jan. 13, 1976.
    Holifield & Harper, Laurel, for appellant.
    Teller, Biedenharn & Rogers, Vicksburg, Carroll Kemp, Hazlehurst, for appellee.
    Before RODGERS, SUGG and BROOM, JJ.
   SUGG, Justice.

Sanderson Farms, Inc. was awarded $10,000 in a special court of eminent domain in Copiah County for 2.53 acres condemned by the Mississippi State Highway Commission in the relocation of Mississippi Highway No. 28. Sanderson assigns as error the failure of the Highway Commission to prove the value of the land under the “before and after rule.”

The before and after rule has long been the formula by which damages are ascertained when part of a tract of land is taken for public use. In Mississippi State Highway Commission v. Hillman, 189 Miss. 850, 198 So. 565 (1940) it was expressed as follows:

When part of a larger tract of land is taken for public use, the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining immediately after the taking, without considering general benefits or injuries resulting from the use to which the land taken is to be put, that are shared by the general public. (189 Miss. at 866, 198 So. at 569).

Hillman also held that the condemnor carries the burden of proving due compensation for land taken before the landowner is called on to introduce evidence. <

The land condemned by the Highway Commission was zoned industrial and was part of a 61.53 acre tract owned by Sanderson and used in the operation of its poultry processing plant with related facilities situated thereon. Sanderson’s main processing plant was located about five hundred feet north of the old Georgetown-Hazlehurst Road and will be approximately three hundred feet north of the right-of-way after relocation of Highway No. 28. Included in the part taken by the Highway Commission is fifteen thousand square feet of Sanderson’s parking lot. The taking will necessitate relocation of the parking lot between the main plant and the highway right-of-way. Taking a portion of the parking lot affects the use and value of the remaining property, requiring an appraisal to be made in accordance with the before and after rule.

The Highway Commission introduced only one witness on the question of value and did not prove damages to Sanderson’s property under the before and after rule. The witness for the Highway Commission testified that the value of the land taken was $5,060 and the value of the fifteen thousand square feet of the parking lot taken was $2,250, making a total of $7,310. The witness said that the balance of the property would not be affected by the taking, but this statement in and of itself does not bring this case within the exception to the before and after rule recognized in Hillman and applied in Green Acres Memorial Park, Inc. v. Mississippi State Highway Commission, 246 Miss. 855, 153 So.2d 286 (1963) and Morris v. Highway Commission, 240 Miss. 783, 129 So.2d 367 (1961).

It is apparent that the Highway Commission is anxious to avoid having to appraise a whole tract of land when it seeks to take only a part thereof. Certainly this would be less expensive and less time consuming; however, an appraisal of only the part taken, where less than the whole is involved, ignores the fact that severance of a part of a tract may affect the value of the remainder. Size, use, location, topography and like factors determine the value of land. Part of the Hillman rationale is that the true effect of taking less than the whole of a tract of land can be determined only with the benefit of an appraisal of the whole, before and after a taking.

We do not overrule Green Acres and Morris but hold that the value of- property condemned must be proved in accordance with the before and after rule except in rare cases falling within the exception set forth in Green Acres and Morris.

We therefore reverse and remand for a new trial. On remand, the fair market value of the property must be shown by the Highway Commission in accordance with the before and after rule.

Reversed and remanded.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON and WALKER, TL, concur.