author: GRIMES, Acting Chief Judge. OTT, Judge,

text:
    MANATEE COUNTY, Florida, a political subdivision, Appellant, v. TOWN OF LONGBOAT KEY, Florida, City of Bradenton Beach, Florida, and City of Bradenton, Florida, Municipal Corporations, Appellees.
    No. 77-558.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    As Modified On Denial of Rehearing Dec. 9, 1977.

      E. N. Fay, Jr., of Mann & Fay, Chartered, Bradenton, for appellant.

      I. W. Whitesell, Jr., of Wood, Whitesell & Karp, P. A., Sarasota, for appellee Town of Longboat Key.
    William R. Liseh, Bradenton, for appellee City of Bradenton.
    No appearance for appellee City of Bra-denton Beach.
   GRIMES, Acting Chief Judge.

By the adoption of our new Constitution in 1968, the people of Florida mandated that city property should not be taxed to finance services exclusively for the benefit of unincorporated areas. In Alsdorf v. Broward County, 333 So.2d 457 (Fla.1976), our Supreme Court observed that this constitutional provision meant what it said. We now face the problems of how this provision shall be put into practice.

Article VIII, Section 1(h) of the Florida Constitution reads as follows:

“(h) Taxes — limitation. Property situate within municipalities shall not be subject to taxation for services rendered by the county exclusively for the benefit of the property or residents in unincorporated areas.”

Recognizing that the implementation of this constitutional provision could cause serious problems in county fiscal planning as well as protracted conflict between city and county governments, the legislature amended Section 125.01, Florida Statutes (1973), by the enactment of Chapter 74-191, Laws of Florida, which reads in part:

“The governing body of a municipality or municipalities by resolution, or the citizens of a municipality or county by petition of ten percent of the qualified electors of such unit, may identify a service rendered specially for the benefit of the property or residents in unincorporated areas and financed from county-wide revenues and petition the board of county commissioners to develop an appropriate mechanism to finance such activity, which may either be by taxes, special assessments, or service charges levied solely upon residents or property in the unincorporated area, by the establishment of a municipal service taxing or benefit unit pursuant to paragraph (q) of subsection (1) or by remitting the identified cost of service paid by the taxes levied upon property situate within the municipality or municipalities to the municipality or municipalities.”

Pursuant to the foregoing statute, the cities of Longboat Key, Bradenton, and Bradenton Beach each presented resolutions to the Board of County Commissioners of Manatee County asserting that certain categories of service provided by the county were of no benefit to the municipalities. The county’s response to these resolutions neither admitted nor denied the assertions contained in the resolutions but sought to have the parties conduct further negotiations. Conceiving that they were not getting anywhere with this approach, the cities responded by filing separate actions against the county. The lawsuits were consolidated, and the case went to trial.

In an amended final judgment the court found that inequities existed “between the taxes paid by residents on property in the municipalities and the services received from Manatee County” in specifically enumerated areas. The court directed Manatee County to establish municipal service taxing units or districts to correct the imbalance. The court further found that for the past two years, the cities of Bradenton and Bradenton Beach had received services having a value of at least as much as the taxes paid by their property owners but held the property owners of Longboat Key had paid more in ad valorem taxes in both years than they had received in services. Thus, the court directed the county to pay the Town of Longboat Key for 1975-76 the sum of $276,714.99 and for 1976-77 the sum of $227,097.10. The county has appealed this judgment, and the cities of Bradenton and Longboat Key have cross-appealed.

We believe that many of the questions raised by both sides will not have to- be answered if our attention is redirected to the basic constitutional provision which is the origin of this dispute. According to Article VIII, Section 1(h), we need only to consider those services “rendered by the county exclusively for the benefit of the property or residents in unincorporated areas.” The framers of our Constitution must have recognized that there are many county services which provide an indirect yet real benefit to city dwellers. There is no need to be concerned with how much more benefit from this type of service county property owners may receive when compared to city property owners because these are not services which are rendered exclusively for the benefit of the counties. The only services which must be considered are those rendered by the county which result “in no real or substantial benefits to the municipal property owners.” City of St. Petersburg v. Briley, Wild & Assoc., Inc., 239 So.2d 817 (Fla.1970).

Once these particular services have been isolated, then a vehicle must be devised whereby the cost of such services is paid only by those in the unincorporated areas. By amending Section 125.01, the legislature recognized that to accomplish this result, the county could either levy special taxes on all property in unincorporated areas or establish municipal service taxing units, or in the alternative it could simply remit to the cities the identifiable cost of such services which are paid by taxes levied upon property within the cities.

Applying these principles to the instant case, we believe that this record sustains the conclusion that all but one of the services enumerated in the final judgment are being rendered exclusively for the benefit of the residents or property owners of unincorporated areas. Therefore, the court was within its authority to order the county to take the steps necessary to insure that in the future the cost of such services shall be borne only by those in the unincorporated areas. However, we believe the court exceeded its authority in specifically directing the establishment of taxing districts when the statute gives to the county the option of determining which method shall be followed to accomplish this result. Section 125.01(6)(a), Florida Statutes (1975).

We further believe that a court can properly order a county to reimburse a city for taxes already paid by its property owners which went to pay for services rendered exclusively for the benefit of unincorporated areas. Insofar as past years are concerned, this is the only alternative offered by the statute which would be applicable. The statute provides that any such reimbursement shall be made directly to the cities themselves, presumably upon the theory that the property owners within the cities will get the resulting benefit from decreased municipal taxes in the future. Section 125.01(6)(a), Florida Statutes (1975).

However, in view of the way we have interpreted the applicable constitutional and statutory provisions, it will be necessary for the court below to make a redeter-mination of what the county shall be required to remit to the cities for the past two fiscal years. The previous determination was simply made by taking some figures from the county budget which compared the amount of taxes which would be paid by property owners within each city against the value of all services estimated to be provided by the county for the benefit of the property owners of those cities. In addition to the fact that these were budgets and not records of actual taxes and expenditures, they took into consideration the values assigned to many services not within the enumerated list of those being provided exclusively for the unincorporated areas. Thus, the bottom line figures reflected deductions in those instances where certain services rendered to the cities were thought to be of more value than the taxes applicable to those services. In addition, this method of computation had the effect of disregarding the fact that the county receives large sums of money each year from sources other than ad valorem taxes, such as state and federal revenue sharing funds. The net effect was that a city (as in the case of Bradenton and Bradenton Beach) whose property owners paid more taxes than the value of services provided for them by the county was deemed not to be entitled to receive any payment from the county. This would permit the county to allocate all monies which were not raised by ad valorem taxes to pay for services rendered exclusively for the benefit of unincorporated areas and thereby thwart the spirit of Article VIII, Section 1(h).

Neither the Constitution nor the statute specifies the manner by which the cost of services rendered exclusively for the benefit of unincorporated areas shall be allocated. Therefore, it becomes necessary for the court to fashion a suitable method for the resolution of this controversy. See Alsdorf v. Broward County, supra. We think that the formula most consistent with the constitutional mandate requires that the cost of these services be allocated in the proportion that the ad valorem taxes paid by the municipalities bears to the total amount of county ad valorem taxes. In a case such as this where not all of the municipalities of the county are joined in the suit, the reimbursements need only be made to those municipalities involved in the suit based upon the percentage of total county ad valorem taxes paid by each city.

As Judge Ott suggests, if most of the countywide revenue comes from sources other than ad valorem taxes, this could mean that the municipalities would receive a rebate of a greater sum than the amount of ad valorem taxes their citizens paid. However, to adopt Judge Ott’s formula would have the practical effect of allowing the counties to render services exclusively for the benefit of unincorporated areas on a large scale and make substantially smaller reimbursements to the cities. This is because the total budget figure into which he divides the cost of exclusive services necessarily includes not only ad valorem taxes but all other monies received by the county. We believe that Judge Ott’s formula overlooks the fact that state and federal revenue sharing funds were created by taxes in the first place which were paid in part by those living within the municipalities. The state and federal formulas by which these funds are allocated to the various counties are complex, but it cannot be denied that the amount of such funds received by any given county would be substantially less if the population of the municipalities within that county and the taxes paid by those within those municipalities were ignored in the computation. By applying the formula we have adopted, the counties will be required to reimburse the cities for the full amount of what it costs the counties to render the services for which the cities received “no real or substantial benefit.”

In making these redeterminations, we caution the court that it will be necessary to take into consideration the substance of the resolutions submitted by each of the cities to the county prior to the filing of their lawsuits. Each of the services ultimately held by the court to be those which were rendered exclusively for the benefit of unincorporated areas of the county were included or referred to in one or more of the resolutions. This was sufficient to permit the court to direct municipal service taxing units to be created in order to pay for each of these services in the future. However, not every resolution referred to each such service,, and the City of Braden-ton Beach did not pass a resolution with reference to the 1975-76 fiscal year. These resolutions were mandated by Section 125.-01(6)(a), which was obviously designed to force the representatives of the cities and the counties to get together prior to litigation in order to seek to resolve their disagreements. This is a proper legislative implementation of the constitutional mandate which persuades us to conclude that if a city fails to bring its complaint concerning a particular service to the attention of the county through an appropriate resolution, it may not later claim a rebate on the basis that such a service was of no real or substantial benefit to its taxpayers. In view of the statutory scheme, it would be unfair to allow a city to be reimbursed for a past year’s service which has now been determined to have been rendered exclusively for the unincorporated areas when the city had never brought to the county’s attention that the service might be of such a nature.

When the amount of the rebate to which each city is entitled has been finally determined, the court should enter a judgment which will have the effect of not requiring the payments to be made until the county has had at least one year within which to assess and collect the necessary extra taxes. The monies to pay these rebates must be paid by the property owners outside the municipalities since it was the unincorporated areas which received the exclusive benefit of the services in the first place. Section 125.01(6)(a) provides authority for these areas to be specially taxed to pay for services rendered for their exclusive benefit, irrespective of the creation of municipal service taxing units.

The conclusions we have reached in this opinion will not insure that each taxpayer will receive a dollar’s worth of services for every dollar in taxes which he pays. However, we believe that the procedure we have outlined will simplify a problem which might otherwise defy solution. While perhaps not eliminated, the inequalities of dual taxation should be substantially diminished.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings consistent with this opinion, at which all previous evidence may be considered together with such further evidence as may be properly submitted.

RYDER, J., concurs.

OTT, J., concurs specially with opinion.

OTT, Judge,

concurring specially.

The majority, as did the lower court before us, wrestled with a series of practical difficulties that arise from rather vague (perhaps advisedly so) legislation complicated by the increasing input of revenues other than ad valorem taxes (race track funds, cigarette taxes, federal and state revenue sharing funds, etc.) to the cost of county government.

My principal concern with the majority opinion is the formula for calculating the remittitur due the city (or cities) for “the identified cost of service” (meaning “services . . . exclusively for the benefit of the . . unincorporated areas”).

The formula directed by the majority opinion conceivably could produce a remitti-tur to the city that exceeds the total revenues derived from county ad valorem taxes on property in the city. It would at least result in the city receiving a remittitur from “exclusive” services funded largely or totally by other revenues. But therein lies the problem — and the reason for the majority formula. Left to its own devices the county would obviously throw all — or as much as possible — of this outside revenue into the cost of exclusive services and provide no benefit (or tax relief) to the city taxpayer by reason of their receipt.

While not perfect by any means I would consider it a more equitable approach to calculate the remittitur on the basis of the percentage of the total county budget going into the exclusive services. That percentage of the city’s portion of the county ad valorem taxes would constitute the remitti-tur. This approach would have the effect of spreading all county revenue, however derived, to all county services, however funded. Such an approach becomes extremely significant in the ease of a small petitioning city in a county where there are one or more far larger cities — the actual dollar contribution of -the small petitioning city being relatively insignificant.

      . “(1) Law Enforcement (only as to road patrol, investigations, and communications on a basis of 90 percent unincorporated areas and 10 percent countywide);
      “(2) Road and Bridge Funds (including engineering, highway department, right-of-way acquisition, and drainage);
      “(3) Planning and Development;
      “(4) County Bus System;
      “(5) Fire Control;
      “(6) Lot Clearing;
      “(7) Land Fill and Mosquito Control financed by countywide revenues as levied and controlled by Manatee County (except for countywide revenues levied by Manatee County for the Manatee County Mosquito Control Board).”

      . The court directed that the following districts be established:
      “(1) A district comprising the municipalities or separate districts for one or more of the municipalities within the County;

        “(2) A municipal service taxing district or districts shall be established for the urban areas of the unincorporated portions of the County; and
      “(3) A municipal service taxing district or districts shall be established for the rural areas of the unincorporated portions of the County.”

      . With respect to the enumerated segments of law enforcement, the court seems to be saying that the city property owners are getting their money’s worth with respect to 10% of the expenditures for these purposes. As we interpret the Constitution, a particular service is either provided “exclusively for the benefit of the property or residents in unincorporated areas” or it is of “real and substantial benefit” to the property owners or residents of the cities even though the benefits accruing to the unincorporated areas may be of a more tangible nature. Faced with the requirement of making this kind of determination, we cannot say where the court would have placed these categories of law enforcement and we, therefore, remand that aspect of the case for further consideration according to the principles set forth in this opinion.

      . We hasten to add that this conclusion pertains only to Manatee County. Whether a particular service would fall within that category if rendered in another county would depend upon the facts peculiar to that county.

      . The recognition by § 125.01(6)(a), Fla.Stat. (1975), that the governing bodies of the cities represent their taxpayers in disputes over dual taxation also provides sufficient authority for us to reject the county’s contention that the suits should have been dismissed for failure to join a taxpayer within each city as an indispensable party.

      . For example, suppose the cost of county fire control for a given year was $100,000, the taxpayers of Bradenton paid ad valorem taxes of $900,000, and the total county ad valorem taxes were $6,000,000. In this event, the county would be required to pay the City of Bradenton the sum of $15,000 (15% of $100,000).

      .Applying Judge Ott’s formula to the example in footnote 6 and assuming the total county budget to be $10,000,000, the county’s reimbursement to the City of Bradenton for fire control would only be $9,000.

      . The same would be true of most of the other outside sources of revenue such as license fees.

      . Our formula is also consistent with the statutory options which permit the county to create municipal service taxing units or to levy special assessments upon the unincorporated areas in order to pay the entire cost of the services rendered exclusively for the benefit of property or residents in those areas.

      . A graphic illustration may be made if we assume a simple (but not unrealistic) hypothetical as follows:
      1. Total cost ot all county services (total budget) $20,000,000.00
      2. Cost of the exclusive services (as to petitioning city) 10,000,000.00
      3. Total county ad valorem taxes 5,000,000.00
      4. Petitioning city’s ad valorem contribution 1,000,000.00
      Under the formula of the majority opinion the petitioning city would be remitted the total sum of $2,000,000.00 or twice the total ad valorem taxes it had contributed. Under the formula I suggest the petitioning city would be remitted the total sum of $500,000.00 — it could never receive a remittitur exceeding its actual ad va-lorem contribution.


source: Caselaw Access Project

author: CHARLES CARROLL, Associate Judge.

license: Public Domain

text:
    The STATE of Florida, Petitioner, v. Michael NORRIS, Respondent.
    No. 77-1061.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Rehearing Denied Dec. 9, 1977.

      Richard E. Gerstein, State Atty., and Dennis L. Curran, Asst. State Atty., for petitioner.
    Martin L. Nathan, Miami, for respondent.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

In the prosecution of the respondent Michael Norris for certain alleged offenses which occurred before he married, the trial court entered an order quashing a subpoena served by the state on the defendant’s wife Lura Valdes Norris, holding she was excluded as a witness on the ground of marital privilege. By petition of the state for a writ of certiorari, said order is presented here for review. On consideration thereof in light of the circumstances and applicable law, we hold the order under review is incorrect, and represents a departure from essential requirements of law.

The competency of a wife as a witness in such case (Everett v. State, 33 Fla. 661, 15 So. 543 (1894); Ross v. State, 202 So.2d 582 (Fla. 1st DCA 1967), was not challenged.

In the order excluding the wife as a witness the trial court stated: “The said Lura April Valdes is the defendant’s wife and any testimony which she is called upon to give would be in violation of spousal relationship and privilege.”

In this case, the husband was to be brought to trial on April 21, 1977. The subpoena in question required appearance on that date. The defendant was charged by information with having committed certain crimes on January 21, 1977. The defendant and Lura Valdes were married on March 24, 1977.

The determinative question is whether the rule of privilege, by which either spouse can effectively object to testimony of a spouse as to any communications between them on the ground that they are confidential and therefore privileged, is applicable to communications that occurred prior to the time the persons were married to each other. We hold it is not.

In Brown v. May, 76 So.2d 652 (Fla.1954), in an action between parties formerly married but by then divorced, it was held to be reversible error to permit the wife to submit pertinent and material testimony of communications of the parties which took place during the time they were married and living together. Incident thereto, the Supreme Court said:

“ * * * In this case the law seems to be well settled that communications between husband and wife made in the course of their marriage relationship and while they are married and living together are privileged and may not be disclosed by one without the consent of the other party.” (Citations omitted)

We hold to be without merit the argument of the respondent that Brown v. May, supra, should not be regarded as authority limiting the privilege to the period of the marriage because the court did not use the word “only”, and state expressly that the privilege existed only in the course of the marriage. We view the statement of the Court in Brown as clearly allocating the privilege to the period of marriage. The reason and purpose of the confidential communication privilege afforded to spouses make it essential and logical that it should be applied and used as to communications of the spouses during the time they are married and living together, but not essential or logical with regard to communications of such persons when they were not married to each other.

The petitioner cited authority expressly supporting the latter proposition. In United States v. Mitchell, 137 F.2d 1006, 1009 (2d Cir. 1943), in discussing this marital privilege, the court said: “Further, it is clear that communications actually made outside the marriage relation, as before marriage, are not within the rule. * * * Here the communications most important to the case occurred before marriage.” Also McCormick on Evidence, § 81 (2d Ed. 1972), stating: “The privilege is created to encourage marital confidences and is limited to them. Consequently, communications between husband and wife before they were married or after their divorce are not privileged.”

In Ex parte Bevllle, 58 Fla. 170, 50 So. 685, 688 (1909), the Supreme Court said: “ * * * the husband and wife may testify and may be compelled to for or against the other, in criminal and civil eases, to any fact the knowledge of which was acquired by them independently of their marriage relation.”

Moreover, even if the defendant and Lura Valdes had married prior to the date upon which the alleged offenses occurred, the privilege to be invoked would have been applicable only to confidential communications of the spouses while thus married, and would not extend or apply to testimony relating to acts, as distinguished from communications. Thus, in United States v. Mitchell, supra, the court said: “Again, the privilege applies only to communications, not to acts.” See Porter v. State, 160 So.2d 104 (Fla.1964); Gates v. State, 201 So.2d 786 (Fla.App.1967).

Accordingly, certiorari is granted and the challenged order is quashed.


author: ALDERMAN, Chief Judge. DOWNEY, Judge, PARHAM, Associate Judge,

text:
    PUBLIC HEALTH FOUNDATION FOR CANCER AND BLOOD PRESSURE RESEARCH, INC., Public Health Properties Corporation, Auto Owners Insurance Company and Westchester Fire Insurance Company, Appellants, v. Charlotte W. COLE, Appellee.
    No. 76-885.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    Rehearing Denied Dec. 27, 1977.

      Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, and Edna L. Caruso of Montgomery, Lytal, Reiter, Denney and Se-arcy, West Palm Beach, for appellants.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

This is an appeal by the defendants from a judgment in a negligence action. The issues are whether the trial court erred: (1) in allowing an expert witness to testify that in his opinion ‘the plaintiff acted as a reasonably prudent person; (2) in failing to direct a verdict for the defendant; and (3) in not submitting to the jury a special verdict to determine the percentage of negligence of the plaintiff and the defendants. We find no reversible error and affirm.

Conflicts exist in the evidence. However, since it is the defendants who are contending that a directed verdict should have been entered in their favor, we must consider the evidence in the light most favorable to the plaintiff. In this light, it appears that the defendants own and operate a waterfront recreation area in Martin County, charging admission to members of the public to come onto the property. On the day of the accident, the plaintiff and her two young children, along with some friends, paid the required admission fee and were admitted to the recreation area. On the river side of the recreation area there is a seawall. Numerous people swim there and dive from the seawall into the river. The plaintiff had been there many times during her life. She was a reasonably good diver and had dived off the seawall in the same area in the past without ever hitting bottom, but she had not dived there previously on this day.

The plaintiff arrived at the recreation area at about 1:30 p. m. and spent the afternoon swimming, fishing, clamming, and playing with her children. Late in the day, when the accident occurred, the water was murky and there was a glare on it from the setting sun. The river was at low tide and the water was not noticeably moving. The plaintiff was not aware of the tide conditions. No warnings were given by the defendants that the water in front of the seawall became shallow at low tide and that it was dangerous to dive at this time. The plaintiff dove off the seawall, struck the river bottom, and as a result she is paralyzed from the neck down. The jury found for the plaintiff and returned a verdict against the defendants for $600,000.00.

The defendants first contend that the trial court erred in allowing expert testimony from a psychologist who testified that his subspecialty, human engineering, is a study of all of the factors which combine to influence the decision of an individual, such as past experience, present feelings, and immediate motor response in terms of the present situation or environment. Plaintiff’s counsel asked a hypothetical question which included the facts of the accident and the witness was permitted to testify that in his opinion a reasonably prudent person could have this accident because of the nature of the situation and the other facts described in the hypothetical.

The trial court allowed that testimony based upon our decision in Seaboard Coast Line Ry. Co. v. Hill, 250 So.2d 311 (Fla. 4th DCA 1971). The defendants contend, however, that the present case is governed by our later decision in Seaboard Coast Line Ry. Co. v. Kubalski, 323 So.2d 32 (Fla. 4th DCA 1975). In Hill we found that the trial court did not abuse its discretion in allowing the same psychologist to give his opinion “as to whether or not an average driver would have seen the train in time to have avoided the collision.” In Kubalski, on the other hand, we held that the court erred in permitting an engineer and safety consultant to give opinion testimony as to how an average man who drives a motor vehicle will react in a line of traffic as assumed in a hypothetical question. Although different results were reached in these cases, each is based upon the premise that, if the subject of expert testimony is one beyond the ordinary understanding of the jury, such testimony is admissible. The cases, however, are factually distinguishable. In Hill there were extraordinary circumstances and the expert was allowed to opine as to how these unusual circumstances would affect the human response. In Kubalski there were no unusual circumstances to warrant any inroads upon the province of the jury to decide what the reasonable man should do or would do in that situation.

Comparing Hill and Kubalski to the facts of the present case we conclude that the situation in which the plaintiff found herself is more like that in Hill. The weather conditions, the tide, the angle of the sun, the glare and other physical conditions in existence at the time of plaintiffs accident create a situation which may be beyond the ordinary experience and understanding of the jury, as in Hill, where there was a standing train in the darkness, fog, the absence of flares and sound, and a boxcar partially blocking the lights north of the crossing. The opinion testimony in the present case is related to the deceptive quality of various factors that were present in the environment and the manner in which a person would react to these factors. The significance of and the reaction of a human being to these factors might reasonably involve a knowledge that was within the sphere of the witnesses’ expertise and beyond the scope of the common knowledge of the jurors. On this basis we conclude that the trial court did not abuse its discretion in allowing the testimony in question^

The defendants next contend that the trial court erred in not directing a verdict in their favor. We find no merit to this contention, particularly in view of the fact that this case was tried under the doctrine of comparative negligence. For the trial court to have directed a verdict, it would have had to find that the plaintiffs negligence was 100% the cause of her accident, and that the defendants were not in any way negligent. We conclude that there was sufficient evidence for the jury to find that the defendants’ negligence contributed to the accident. Compare: First Arlington Investment Corp. v. McGuire, 311 So.2d 146 (Fla. 2d DCA 1975).

As their last point the defendants contend that the trial court erred in failing to submit a special verdict to determine the percentage of negligence of the plaintiff and the defendants. This issue has recently been resolved in Lawrence v. Florida East Coast Ry. Co., 346 So.2d 1012 (Fla.1977). The Supreme Court there held that special verdicts shall be required in all jury trials involving comparative negligence; however, this ruling was made prospective only and has no retroactive effect. Therefore the prior rule, allowing the trial court to exercise its discretion in requiring special verdicts, as authorized in Hoffman v. Jones, 280 So.2d 431, 439 (Fla.1973), is applicable.

The judgment is affirmed.

DOWNEY, Judge,

concurring specially:

The main ultimate issues to be tried by the jury in this case were: 1) were the defendant-property owners negligent; 2) was Mrs. Cole negligent; 3) if both parties were negligent, what was the degree of each party’s negligence; and 4) what damages was Mrs. Cole entitled to recover?

The evidence in this record would adequately support a jury’s finding that either the property owner and Mrs. Cole were both negligent, or that one of the parties was negligent and the other not negligent. Thus, the testimony of an expert witness that under the circumstances of this case Mrs. Cole conducted herself as a reasonably prudent person would have done is, in my judgment, an unwarranted incursion into the sphere of influence belonging solely to the jury.

Mrs. Cole testified that she had lived in the area all of her life and had been swimming, fishing, and clamming in this area many times. By her own account she was a competent fisherperson and was knowledgeable about the changing of the tides. Mrs. Cole knew that because of the changing tides, the water into which she dived was shallow at low tide and deeper at high tide. She actually observed and knew the tide was going out swiftly on the afternoon in question. She testified that: “You could look around and see shallow places and deep places.” Finally, after Mrs. Cole fully disclosed her intimate knowledge of the location in question and most of the environmental factors affecting the area, she was asked if she could explain why the accident happened. Her forthright reply was: “I don’t know. I guess I just didn’t pay enough attention to the depth of the water.”

With that background plaintiff adduced the deposition testimony of Dr. Isadore Scherer, a psychologist of sound qualifications as previously noted by this court in Seaboard Coast Line Railroad Company v. Hill, 250 So.2d 311 (Fla.4th DCA 1971). Plaintiff propounded to Dr. Scherer a hypothetical question which set forth the factual setting as Mrs. Cole viewed it, including Mrs. Cole’s intimate knowledge of the area. The hypothetical question ended in the following way:

“Assuming all of those factors which I have just given you, do you have an opinion as to how a reasonably prudent individual under the same circumstances and conditions as those I have given you, would act, based upon your skill, experience, education and training?”

Dr. Scherer responded:

“My opinion is that a reasonably prudent individual could get into this accident because of the nature of the situation and the other factors that you described in your hypothetical. I am making one assumption from this exhibit.”
* % % :f: sk ¡Js
“Going back to what I said before, relative to the approach to analysis of an accident, we then go to the variables such as point one, what information the individuals have before the accident occurred, and I feel that if we check, the informational input to her was degraded to some extent because there was no sign that— there was no warning about whether or not she should or, should not dive, so that there is no signal for danger; in other words, her set in this situation is not what it might be in order to avoid getting into an accident.
“Also, I notice that the angle she dove from on the basis of that map, was southwest, would mean that she may have been looking in the sun, and that, of course, would make it a little more difficult for her to judge the depth factor; whether she thought about it or not, I mean, it’s something that one would use.
“You said the water was murky, which of course, would also interfere with the fact of making decisions relative to depth. Also, there is a statement that you made that she had been diving in that area for, or been swimming in that area for some 20-odd years, and so that the likelihood is that she dove in that, in the area, in the general area which she dove again on the day of the accident, and probably also saw others diving from time to time.
“Making decisions, one uses past habits or past recall. And if we accept the idea that she-had been diving there before, she had never gotten in an accident, her experience in that area made her feel that she knew what she was doing, so that we have in a sense what is often called a human error, which is habit interference, which is a common human error in which one’s past habits will have an input to what one does. And this is the decision-making process, and sometimes is hindered by the logic of the situation when there is a habit pattern to interfere. There was, from what was noted above, no signals of danger so that there was not a set to be concerned; in other words, one wasn’t prepared to be able to feel that, I got to watch out, at least in the general area in which she had been swimming before, or had been visiting before, had jumped before.
“So here alertness to the situation is downgraded because of that factor. So, in the sense she acted from reduced observation, that is a downgrading of the capacity to have the signals by which she can make proper judgment.
“There is the input of the human error factor because of past habits. There is the possibility that she is unable to see because of the direction in which she was facing. I think, too, there are other variables that make for one acting faster in one situation than another, and this is, it is the Fourth of July. She is feeling happy. She is enjoying herself. It is a holiday, and she just jumps so that the emotional tone was set for doing something like this. And it is for these reasons that I feel that I, any other person in the same situation could very well do what she did. And this would be a reasonably prudent person that would get into this situation.”

After the witness concluded the answer to that hypothetical question, counsel for plaintiff asked:

“Q (By Mr. Ricci.) All right. Doctor, I’m going to ask you now on a completely different set of facts and circumstances, whether or not you are familiar with the particular facts and circumstances in this case; whether or not you have read the deposition of the plaintiff, Charlotte Cole—
“A I read the depositions.
“Q Have you read the depositions of the other eyewitnesses who were present, namely Laura Bostrum, Linda Griffin and the plaintiff’s son, Carl Cole?
“A Yes, I did.
“Q Have you seen photographs of the actual accident scene?
“A I did.
“Q And you have already testified that you have seen a survey map of the area showing the detail of the area?
“A I have.
“Q All right. Based upon the information which you received from reading those depositions, viewing those photographs and looking at the survey, do you have an opinion as to how a reasonably prudent individual under the same conditions and circumstances as the plaintiff in this case, would act, based on your skill, experience, education and training, an opinion other than the one which you have already given us in the hypothetical? (Emphasis added.)
“A No. That’s my answer to the question, your hypothetical.”

The foregoing testimony was admitted over appellant’s objection, the trial court relying upon the Hill case, supra, as authority.

I am cognizant of the trend which often leads to cases being tried as a battle of experts. The breadth and scope of expert testimony seems to be ever increasing. But if we have reached a point in time when in a negligence suit an expert can render his opinion on one of the main ultimate issues the jury is to decide then we have eliminated one of the most important functions which juries perform, viz., determination of what a reasonable person would do under a specified set of circumstances. In Hill, supra, this Court held that Dr. Scherer was competent to render an opinion as to whether an average driver would have seen the train with which the plaintiff’s decedent had collided in time to have avoided the collision. This court pointed out that the subject matter of the opinion was not just the visibility of the train but also the deceptive quality of the various other factors that were present in the environment as shown by the evidence. And so the court ruled that “[t]he significance of and the reaction of a human being to these factors might reasonably be held to involve a knowledge that was within the sphere of the witness’ expertise and beyond the scope of the common knowledge of jurors.” 250 So.2d at 315. The environmental factors referred to were darkness, fog, a black street, dark railroad cars, and lights beyond the crossing. With all the complimentary things which have been written about the wisdom of juries in past cases can it seriously be said that juries need an expert to tell them that darkness, fog, dark streets, absence of flares, and dark objects such as railroad cars diminish the perception of an auto driver at night? And if those things are matters of common knowledge then the expert testimony is not admissible. Johnson v. State, 314 So.2d 248 (Fla.1st DCA 1975).

It might be that an expert’s description of the effect which certain observations have on one’s senses would be helpful to a jury if they involve obscure situations not ordinarily experienced by the average man. But to hypothesize routine experiences and then call upon the expert to opine whether a party’s conduct was negligent is a complete usurpation of the jury’s function and purpose. Yet, that is just about what happened in Hill, when the expert was allowed to testify that, because of the environmental factors involved there (the darkness, fog, absence of lights or flares, dark railroad cars and lights beyond the railroad tracks), an average driver would not have seen the train in time to have avoided the collision.

Nor do I believe in the present case that we could resort to the harmless error rule to justify this decision. It is impossible to determine the neutralizing effect of Dr. Scherer’s testimony on the other evidence of Mrs. Cole’s negligence. For aught we know, that testimony could have persuaded the jury that Mrs. Cole was totally free of negligence because, as he testified, “a reasonably prudent individual could get into this accident . . . .”

In my judgment the decision in Hill approving the admissibility of Dr. Scherer’s testimony concerning what the average driver would do or not do is an unhappy one. However, it is a decision of this court and I feel constrained to follow it.

I therefore reluctantly concur with Judge Alderman that the judgment appealed from must be affirmed.

PARHAM, Associate Judge,

dissenting:

I must respectfully dissent from the majority opinion. Specifically, I agree with all of the concurring opinion of Judge James Downey, including his conclusion that allowing Dr. Scherer’s testimony as described could not be held as harmless error. However, I depart as to following the precedent in Hill. The decision in Seaboard Coast Line Railroad Company v. Hill, 250 So.2d 311 (Fla.4th DCA 1971) is such a departure from precedent that it should not be followed. It is bad law and should be set aside.

The Defendant in this case was entitled to have the Plaintiff’s wrongdoing, her contributory or comparative negligence evaluated without the taint of the opinion of this self-styled “human engineer”.

For the above reasons I do respectfully dissent.

      . Other recent cases in which “human factors engineers” testified as experts are Seaboard Coast Line Railroad Company v. Helman, 330 So.2d 761 (Fla.4th DCA 1976), quashed Helman v. Seaboard Coast Line Railroad Company, Fla., 349 So.2d 1187, Opinion filed July 28, 1977; Seaboard Coast Line Railroad Company v. Welfare, First District Court of Appeal, 350 So.2d 476, Opinion filed September 12, 1977.


author: PER CURIAM.

text:
    HAMILTON INVESTMENT TRUST, Appellant, v. ESCAMBIA DEVELOPERS, INC., M. G. Drake, and Associated Developers of Florida, Inc., Appellees.
    No. BB-54.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1977.
    Rehearing Denied Dec. 29, 1977.
    Hugh M. Taylor and W. Robert Olive, Jr. of Bryant, Dickens, Franson & Miller, Tallahassee, for appellant.
    Jack S. Graff and William Rankin of Levin, Warfield, Middlebrooks, Graff, Ma-bie, Rosenbloum & Magie, Pensacola, for appellees.
   PER CURIAM.

This is an appeal from a judgment denying a deficiency following a mortgage foreclosure.

The testimony before the trial judge was concentrated upon the value of the property. One such witness placed the value at a sum less than the indebtedness, while another witness placed the value at a sum which exceeded the indebtedness.

“The discretion to grant (or deny) deficiency decrees in mortgage foreclosure suits, provided for by statute (Sec. 702.06, Fla.Stat., F.S.A.), is not absolute and unbri-died but is a ‘sound judicial discretion’, Carlson v. Becker, Fla.1950, 45 So.2d 116. The exercise of such discretion in denial of a deficiency decree must be supported by disclosed equitable considerations which constitute sound and sufficient reasons for such action. Scheneman v. Barnett, Fla. 1951, 53 So.2d 641; Kissling v. McCarthy, Fla.App.1958, 100 So.2d 434; Kurkjian v. Fish Carburetor Corporation, Fla.App.1962, 145 So.2d 523; Colmes v. Hoco, Inc. of Dade County, Fla.App.1963, 152 So.2d 524. Therefore, the determinative question here is whether the chancellor abused discretion in denying the mortgagees’ motion for a deficiency decree.” Larsen v. Allocca, Fla. App., 187 So.2d 903.

If the value of the foreclosed property exceeds the debt, the chancellor is authorized in denying a deficiency. There is competent substantial evidence in this record to conclude that the trial judge found this was the case.

The judgment is, therefore, AFFIRMED.

BOYER, C. J., RAWLS, J., and MCDONALD, PARKER LEE, Associate Judge, concur.


text:
    ACCO, INC., Appellant, v. BISCAYNE FEDERAL SAVINGS AND LOAN ASSOCIATION, a United States Corporation, Appellee.
    Nos. 76-2028, 76-2029.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    James W. Geiger, Fort Lauderdale, for appellant.
    Michael C. Slotnick of Pallot, Poppell, Goodman & Slotnick, Miami, for appellee.
   PER CURIAM.

Appellant, Acco, Inc., a heating-air conditioning contractor, appeals summary final judgment entered in favor of appellee, Biscayne Federal Savings and Loan Association, as mortgagee, in an action to “compel the exercise of an equity of redemption on property.”

Appellee instituted a suit to foreclose certain mortgages it held on property located in Broward County, Florida, against which appellant simultaneously had pending an action to foreclose its mechanic’s lien rights. Acco was not, however, joined in appellee’s foreclosure suit. Upon conclusion of the mortgage foreclosure suit in favor of appel-lee, suit was brought against appellant to compel it to exercise its rights of redemption. Appellee filed its motion for summary judgment supported by affidavits. Thereupon, the trial court entered summary final judgment and granted Acco twenty (20) days within which to exercise rights of redemption. Upon Acco’s failure to pay, the court entered its order barring redemption rights. Acco instituted this appeal seeking review of both the summary final judgment and the order barring redemption rights.

The relation-back of mechanic’s lien to the date of filing the notice of commencement, even though such claim of lien was filed more than one year after the posting of notice of commencement, was recently determined by this court in Southern Colonial Mortgage Company, Inc. v. Medeiros, 347 So.2d 736 (Fla.4th DCA 1977). In that case we held that the mortgagees could not invoke the provisions of Section 713.13(5), Florida Statutes (1969), to gain priority over mechanic’s liens which related back to the notice of commencement. The Southern Colonial Mortgage case is dispositive of the issues presented by the instant appeal.

Accordingly, the summary final judgment entered in favor of appellee is reversed, the order barring redemption rights is vacated and set aside, and the cause remanded for further proceedings.

Reversed and remanded.

ALDERMAN, C. J., CROSS, J., and MILLER, ROBERT, Associate Judge, concur.

      . § 713.13(5), F.S.A. Unless otherwise provided in the notice of commencement or a new or amended notice of commencement, any notice of commencement heretofore or hereafter recorded shall not be effective as to any person acquiring title or any interest in real property from the owner or under him after one year from the date of recording the notice of commencement.


author: OTT, Judge.

text:
    D. W. KNAPPEN and Betty T. Knappen, Petitioners, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.
    No. 76-1182.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1977.
    Rehearing Denied Dec. 28, 1977.
    H. Rex Owen of Owen & McCrory, St. Petersburg, for petitioners.

      Alan E. DeSerio and H. Reynolds Sampson, Tallahassee, for respondent.
   OTT, Judge.

Plaintiff/respondent — the State Department of Transportation [hereinafter DOT] —commenced an eminent domain proceeding for highway purposes by filing a complaint in February 1976 seeking the appropriation, inter alia, of two parcels owned by petitioners/defendants (husband and wife). Petitioners responded with a motion to dismiss the complaint and an answer questioning the necessity for the taking. After a hearing, the court below entered its order of taking. With reference to the “necessity” issue the court held as follows:

Upon this issue the Court has heard conflicting testimony of qualified experts of each of the parties. Taken in the best light to the defendants [the property owners] the testimony as a whole demonstrates that a roadway of similar function and characteristics could be constructed within the right of way now existing adjacent to these parcels. The testimony does not place in issue the necessity of the underlying project but only the design by which the same is to be accomplished. [Emphasis supplied]

The court found that the taking of the subject land was necessary. Petitioners’ motion to dismiss was denied. From the resulting order of taking petitioners filed their petition for writ of certiorari. We grant their petition and issue the writ for reasons hereinafter stated.

The property taken consisted of two parcels owned by petitioners — parcels 105 and 167. Parcel 105 was a narrow rectangular strip on the east side of Gulf Boulevard in Treasure Island, Florida. Parcel 167 was a narrow rectangular strip on the west side of the street, slightly to the north of Parcel 105. These two rectangular additions were for the purpose of enlarging the existing approximately 66-foot right of way to an 80-foot right of way.

On the east side of Gulf Boulevard, [the parcel 105 side] petitioners owned two motels: the Treasure Park and the Sun Tide. On the west side of Gulf Boulevard, [the parcel 167 side] the petitioners owned three motels: the Tahitian, Imperial and Newport Villa.

At the point of petitioners’ land the DOT condemnation called for an 80-foot right of way. Under its design, the actual pavement width or “impass” would be 61 feet. The remaining 19 feet would be equally divided and contemplated a sidewalk, a grass strip (the border area) and a 6-inch curb on each side. The DOT conceded this particular segment was in a narrow land area between two bodies of water and that the private property of the petitioners was already squeezed to the limit. The taking of each additional foot admittedly caused severe hardship.

The result of this taking on petitioners’ parking area would be as follows:

MOTEL EXISTING PARKING SPACES SPACES TO BE TAKEN BY DOT SPACES REMAINING PERCENTAGE REMAINING
Treasure Park 13 4 9 69%
Sun Tide 9 4 5 56%
Tahitian 8 3 5 63%
Imperial 7 2 5 71%
Newport Villa 11 5 6 55%
18

At the hearing, the DOT s witness — Cochran — testified on cross-examination to the effect that the existing 66-foot right of way would suffice under certain circumstances, i. e. if the public is adequately served in the sense of traffic movement and safety, then the 66-foot right of way would be adequate. Cochran did state, however, that he thought an 80-foot right of way was necessary, but failed to give any factual basis as to the “necessity” for an 80-foot right of way here as opposed to other segments where the existing 66-foot right of way was all that was “necessary.”

Cochran testified that the DOT in designing the facility relied upon two manuals (the “Red Book” and the “Blue Book”) published by the American Association of Transportation. These manuals comprise the established design criteria for all transportation projects. In questioning Cochran, counsel for the petitioners read two excerpts from the “Red Book” into the record:

For their proper functions, many forms of land use require areas of substantial size and confirmation together with supporting facilities. There should be minimum disruption of such areas by major traffic ways.
Highway design determines the minimum right-of-way taking. But the taking should be realistic and considerate regarding each property holder or user. Study should be given each property taken in relation to alignment and cross section alternatives. The effect of taking on the remaining land use, including accessibility, and on residents or on business locations should be analyzed in advance. [Emphasis supplied]

This amounts to a common sense recognition of reality — that you expand or contract road designs within the alternatives provided according to the particular uses and requirements of adjacent private property owners.

Also on cross-examination, Cochran testified that it was acceptable under the “Red Book” to put a sidewalk adjacent to a curb. Cochran stated that although ideally a “border area” (the grass strip between the sidewalk and the curb or the distance from the bank of the curb to the right of way line) should be present, the “Red Book” permitted its omission. There was nothing in the published criteria requiring the inclusion of the “border area” for the proposed facility.

Cochran’s personal rationale was that the less border area there was the more chance there was for a vehicle entering the road to turn into the “inside” lane [the lane closest to the median]. He maintained that the inclusion of a border area would insure fewer turns encroaching into the “inside” or passing lane. Yet Cochran admitted that the DOT design called for the sidewalk being adjacent to the curb in front of park property [beach area set aside for public use] located about 100 feet south of parcel 167. The design for that segment was accomplished within the existing 66-foot right of way. Cochran explained this on the ground that it was a common practice to “design around . . . 4-F involvement.” This was simply another way of saying that the taking of right of way in park areas was usually avoided because of the red tape involved. He stated that the approval needed to utilize park lands was very difficult and time consuming to work out. In short, in the segment of the project south of petitioners’ land, the DOT — for its own convenience — chose to work within the 66-foot right of way, eliminate the “border area” and use a design essentially equivalent to that advocated by petitioners.

It was also conceded that the 66-foot right of way had been employed in the Madeira Beach section of the same project. Insofar as traffic flow, safety and general character of adjacent property uses and requirements, etc. are concerned nothing was offered to justify the change in design and resulting right of way requirements.

With reference to the funding of the Gulf Boulevard project Cochran testified that the right of way was to be purchased using federal funds. He stated that Pinellas County had agreed to reimburse the DOT over a five-year period out of secondary road gas tax funds. Further enlightening on the funding question was the testimony of the DOT district engineer, Monts de Oca. He stated that no state funds had been used for road right of way acquisition (primary or secondary roads) for several years. Also relevant to the funding question was the deposition of Webb, the Secretary of the DOT. He confirmed that state funds were limited for the acquisition of right of way. He intimated that to attract federal funds a right of way wider than 66 feet (i. e. 80 feet) would have to be applied for. Specific reference was made in the questioning of Webb to a letter from Monts de Oca dated December 16, 1969 which provided in relevant part:

Because of limited State funds, I do not know whether or not we can program the section of State Road 699 [the section at issue] under the same programing. [The 66-foot right of way programing which was used in the Madeira Beach section of the project.]
I shall be re-evaluating my five-year construction program using projected construction funds supplied by our Fiscal Department in Tallahassee. If the projected funds indicate that this project can be scheduled for construction as a State project, then we will plan and program the project in this manner. If, however, our state funds are limited to the point where we cannot build the project without federal aid, then we must comply with the Bureau of Public Roads requirements concerning right of way widths and design standards.
Since the plans are virtually complete for this section [the section at issue] using the federal requirements, if it is at all possible to furnish the necessary right-of-way to accomplish this project as a federal project, we should do so.

In his deposition Webb added the following:

Q. Now as Secretary and after having read this letter, do you understand this letter to be saying that in Madeira Beach we have State funds to build this with a 66-foot right-of-way, but in Treasure Island we don’t have enough funds, so we are going to have to fund it with Federal money?
A. No, I don’t read it that way.
Q. Could you tell me how you read it?
A. I read it to say that he would try to program it, but he had very serious doubt about whether he could program it to be constructed with State funds, recognizing the critical nature of that supply of funds.
Q. Okay, sir. Then am I correct in assuming beyond what you have just explained that since he did not have those State funds he would look to Federal funds and then he would have to have a wider right-of-way?
A. Yes, that’s what he is saying.

All of this would appear to be susceptible of three meanings: either we will go to an 80-foot right of way if we decide to secure federal funds; or in view of the availability of federal funds we can afford the 80-foot right of way; or, in order to qualify for federal funds we should shift to an 80-foot right of way. The latter meaning — even if believed by the writer- — seems to be unjustified in view of the alternative design being acceptable under federal as well as state standards. In any case, none of the three possible meanings offer any support for “necessity.”

Petitioners called Tipton, a traffic engineer certified as an expert in traffic design. Tipton testified that based upon the Red Book, DOT data and figures of anticipated traffic run in 1995 (21,200 vehicles per day) that a “configuration of a facility capable of handling the capacity of traffic that the DOT said would be there” could be handled by the existing 66-foot right of way. According to Tipton one “possible design” contemplated a 57-foot impass (as opposed to the DOT’s 61 feet). The remaining 4.5 feet on either side of the street would involve a sidewalk and a 6-inch curb. No allocation was made for the grass strip which was the border area.

Tipton pointed out that the 19 feet beyond the curb line which the DOT included in its right of way (80 less 61) had absolutely no effect on capacity to move traffic. Tipton contemplated four 11-foot lanes with a 10-foot turning lane; the DOT contemplated four 12-foot lanes with a 10-foot turning lane. The court posed the question:

Q. What does the difference in one-foot in lane width have to do with capacity to move traffic through that lane? You are talking about volume of capacity. You can only move one car through at a time.

Tipton answered that unlike water passing through a pipe where a 3-inch pipe would get more water through than a 2-inch pipe, that automobile lanes were different in the sense that only one car could be in one lane at a time. He granted that there could be more freedom of movement in a 12-foot lane than in an 11-foot lane but that the effect on capacity would be minimal at best.

Tipton stated that based upon the DOT figures an 80-foot right of way would accommodate 23,500 cars per day; a 66-foot right of way would accommodate 21,500 cars per day. [As pointed out supra, the DOT projects an anticipated traffic run of 21,200 cars per day in 1995.]

With reference to the plight of the petitioners, Tipton testified that parking was “extremely tight” in the vicinity of petitioners’ motel and that “there is not much of it [parking] in this area.” Under Tip-ton’s “possible design” of a 66-foot right of way petitioners would lose fewer spaces than under the DOT proposal. Under the Tipton proposal, the following loss of parking places would be felt by each motel:

MOTEL EXISTING PARKING SPACES SPACES TO BE TAKEN BY DOT SPACES REMAINING PERCENTAGE REMAINING
Treasure Park to CO 11 85%
Sun Tide to 05 7 78%
Tahitian to OO 6 75%
Imperial I — 1 t-6 86%
Newport Villa to H 9 82%

Thus, under the Tipton proposal only 9 of the 48 existing parking places would be lost. In contrast, under the DOT proposal up to 18 of the 48 parking places would be lost. That this would be a “precious saving” to the petitioners was granted by Cochran in his testimony to the effect that the 66-foot right of way would be adequate under certain circumstances.

Tipton pointed out that under either the 66-foot or the 80-foot right of way, motel customers would still — as they do at present — have to back out onto Gulf Boulevard because of the extremely narrow width of the lots. There is not now nor would there be under either alternative enough space to turn around.

At issue is whether the trial court departed from the essential requirements of law and whether petitioners would suffer irreparable damage because of the proposed taking. We answer both questions in the affirmative.

In its taking, the lower court cited with approval the case of Hillsborough County v. Sapp, 280 So.2d 443, 445 (Fla.1973):

Once a condemning authority decides that a taking is necessary, selects one of the alternatives open to it, and applies to a court for approval of the taking, the role of the court is limited to assuring that the condemnor acted in good faith, did not exceed its authority, and did not abuse its discretion.

The court in Sapp went on to say:

"When the trial court approves the determination of reasonable necessity and finds no abuse of discretion, a reviewing court is then limited to deciding whether or not there was competent substantial evidence to support the decision of the trial court. 280 So.2d at 445.

We hold that there was not competent substantial evidence to support the decision of the trial court. Specifically, we find that a careful reading of the evidence indicates that the condemnor took more than was necessary.

It has long been the law in Florida that a condemnor may take private property for public use only when it is necessary for such use. Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527 (1929). In Miller v. Florida Inland Navigation District, 130 So.2d 615, 628 (Fla. 1st DCA 1961) the court held:

There is no logical difference between the well-recognized illegality in taking a greater quantity of property than is necessary to serve a particular public use and that of taking a greater interest or estate therein than is required for the contemplated use.

In Canal Authority v. Litzel, 243 So.2d 135, 137 (Fla.1970) the court held that “[t]o satisfy the initial burden of showing some necessity the condemning authority is not required to prove absolute necessity.” See Dade County v. Paxson, 270 So.2d 455 (Fla. 3d DCA 1972). In the recent landmark case of City of Jacksonville v. Griffin, 346 So.2d 988 (Fla.1977) the “essential issue [was] whether the City [condemnor] made a showing of reasonable necessity for the condemnation of respondent’s land.” 346 So.2d at 989. The supreme court reversed the district court’s finding that there was no showing of reasonable necessity. The supreme court, relying extensively upon Canal Authority v. Litzel, supra, held that the city had proven a reasonable necessity for the taking. The Griffin court receded from its decision in Ball v. City of Tallahassee, 281 So.2d 333 (Fla.1973) in the sense that Ball placed an “unreasonable gloss upon the rule of law enunciated in the Canal Authority cases.” The Griffin court stated:

To the extent that Ball requires that a condemnor must present evidence pinpointing the need for the particular property sought to be condemned, we recede from that case and reaffirm the rule of law expressed in the Canal Authority cases. 346 So.2d at 991.

The Griffin court pointed out that:

Were the City not permitted to exercise its discretion in good faith as to the sequence of the parcels to be condemned, then each land owner would be able to raise the question, “Why not my neighbor?” and thereby effectively frustrate commencement or continuation of the project. 346 So.2d at 991.

Petitioners’ position is not an attempt to raise the question “Why not my neighbor?”. Neither are we in the same type of situation as that found in the case of Chipola Nurseries, Inc. v. Division of Administration, Department of Transportation, 294 So.2d 357 (Fla. 1st DCA 1974) in which the court held:

It is not bad faith on the part of the condemning authority to fail to “give as much study to the alternative route suggested” by neighboring land owners as was given to the selection of the route ultimately selected. 294 So.2d at 359.

See Inland Waterway Development Co. v. City of Jacksonville, 38 So.2d 676 (Fla. 1948); Catholic Burse Endowment Fund v. State Road Department, 180 So.2d 513 (Fla. 2d DCA 1965).

Distinct from both the Griffin and Chipó-la situations, the condemning authority in the instant case overstepped the bounds of necessity for no good reason. The only basis that can be inferred from the evidence is that the DOT — fearful of the shortage of state funds for the Treasure Island portion of the Gulf Boulevard project — decided the enlarged right of way would materially assist in attracting federal funds.

The trial court concluded that the “design” of the project is not subject to review; determination of necessity being confined to whether or not the project was shown to be “necessary.” However, “design” can become material because it determines quantity, especially if the design is dictated by valid considerations. Clearly, the condemn- or cannot take more than is necessary for the project. Equally clearly, the determination of design and resulting quantity should not be questioned solely on the basis of the opinion of one expert against that of another. This is comparable to a “choice of routes” in which a condemnor is entitled to a liberal choice.

The difficulty herein lies in the fact that the DOT has admitted the use of one design that calls for only 66 feet in a segment of the project (Madeira Beach) north of the section at issue and again immediately south of the section at issue (the park area). This certainly belies the “necessity” of the design — and resultant quantity — and renders the decision arbitrary and capricious.

The reason that Florida courts have consistently held that a judicial inquiry is permissible into the necessity of taking stems from their awareness of the “ ‘tunnel vision’ that so often plagues a bureaucracy which deems itself immune from judicial review.” Chipola, supra, at 360 (concurring opinion). In Central and Southern Florida Flood Control District v. Wye River Farms, Inc., 297 So.2d 323 (Fla. 4th DCA 1974) [cited with approval on other grounds in Griffin ] the court held that judicial inquiry is permissible “to protect land owners from abuses of misguided power.” 297 So.2d at 326.

Although a “broad discretion” is vested in the condemnor, Inland Waterway Development Co., supra, at 678, and although highhandedness has been held not to constitute bad faith, Chipóla, supra, at 359, we hold that the evidence adduced by the DOT was insufficient to withstand the challenge of petitioners’ answer and motion to dismiss.

The petition for writ of certiorari is granted and the trial court’s order of taking is vacated as to the two parcels involved herein and the cause is remanded for corrective action consistent with this opinion.

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

      . “Impass” is the area from curb to curb including the 58 feet for traffic and turning lanes.

      . There was some indication that the number of spaces lost under the DOT proposal was 14 rather than 18.

      . The “Red Book” provisions are set out as they actually exist rather than as they appear [incorrectly] in the record.

      . The curb to curb impass area included 54 feet for traffic and turning lanes.

      . This case is an example of the problems a property owner faces in condemnation proceedings. The Gulf Boulevard project— hatched in 1959 — contained an intricacy of details, particularly in the road right of way design and detail and in division of the project into multiple segments or phases. Most landowners, with their limited knowledge and expertise, can only hope to scratch the surface in uncovering reasons why a project is unnecessary. This momentous burden is made more difficult by the broad discretion granted con-demnors.


author: SMITH, Judge.

text:
    Norman Lee HORN et ux., Appellants, v. INDEPENDENT FIRE INS. CO., Appellee.
    No. GG-272.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1977.
    Rehearing Denied Dec. 22, 1977.
    Gregory E. Tucci of Blowers, Walkup, Berk & Tucci, Ocala, for appellants.

      Andrew G. Pattillo, Jr., of Pattillo, MacKay & McKeever, Ocala, and Harry M. Hobbs, Tampa, for appellee.
   SMITH, Judge.

An appeal from an order of the trial court fixing fees for the services of appellants’ lawyer on the prior appeal and assessing the amount against appellee. See Independent Fire Ins. Co. v. Horn, 343 So.2d 862 (Fla. 1st DCA 1977). Although the $1,500 fee awarded is surely at the bottom of the range of a reasonable fee for the services required of appellants’ lawyer on the appeal, we cannot say that it was insufficient as a matter of law.

AFFIRMED. Appellants’ motion for an allowance of additional fee money on this appeal is DENIED.

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


text:
    UNITED STATES STEEL CORPORATION and P.S.A. Enterprises, Inc., Appellants, v. J. C. BENEFIELD and Mary J. Benefield, Appellees.
    Nos. 76-751, 76-760.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1977.
    Rehearing Denied Dec. 27, 1977.

      John R. Lawson, Jr. of Holland & Knight, Tampa, and Tom Y. Sawyer of Edwards, Sawyer & White, Plant City, for appellants.
    Michael J. Freedman of Levine, Freedman & Hirsch, Tampa, for appellees.
   McNULTY, JOSEPH P. (Ret.), Associate Judge.

We determine this day the appropriate measure of damages for injury to real property occasioned by breach of contract when the cost of restoration of the property exceeds the diminished value of the injured land.

The land in question involves 26 acres of a 750 acre tract owned by the Benefields which was part of a phosphate mine operated in Hillsborough County in the 1930’s and 1940’s. In the course of mining phosphate in those days a residue of phosphate mineral was deposited in piles on the land as a by-product of the mining operation. In the phosphate industry this was and is referred to as “debris” or “tailings.” Through the 30’s and 40’s these tailings were a waste by-product because technology at the time was not sufficiently advanced to permit feasibly the recovery of the total product from this waste. Subsequently, and before the times material herein, techniques were developed to make full recovery profitable.

With this state of affairs in the phosphate industry in mind, the Benefields in 1973 purchased the whole tract herein and appellant United States Steel ultimately acquired the rights to remove the “tailings” or “debris” within 160 acres thereof. Since the land had previously been mined, and had remained unreclaimed, its topography included vast pits, holes and piles of dirt and tailings. It is significant, therefore, that the contract permitting the removal of the tailings contained a prohibition against removal thereof “below original ground level.”

It may be surmised, at this point, that this prohibition gave rise to the underlying dispute herein. The Benefields argued that the term "original ground level” meant the natural level of the ground before any mining at all began back in the 1930’s, while United States Steel interpreted the term so as to mean the level of the ground upon which the tailings were piled whether such level was below the original natural ground level or not. The trial court found, properly we think, that as used in the contract between the parties hereto the term meant the original, natural ground level as it existed prior to the commencement of any mining operations at all.

As may be further imagined, with respect to the 26 acres in question the court found, and there was sufficient evidence to support it, that United States Steel ultimately removed 129,977 cubic yards of tailings below the original natural ground level, 12,997 cubic yards of which represented marketable phosphate. Based on these findings he awarded $50,691 for the value of the phosphate removed and $327,543.30 necessarily to be expended for fill dirt to restore the land to the original natural ground level. This appeal ensued.

Appellant’s primary thrust is that the trial court erroneously interpreted the term “original ground level,” but we have hereinabove noted that the court was correct. We say here, too, that appellant has failed to demonstrate reversible error with respect to the finding of a breach on its part of the contract herein. We would agree with appellant, however, that the trial court applied a wrong measure of damages in computing the award.

First, as to the $50,961 representing the value of the phosphate removed from below “original ground level,” there is no real dispute. Given the wrongful removal of that phosphate, the award was amply supported by evidence in the record.

But concerning the remaining $327,-543.30, this amount was computed from an erroneous measure. Generally, with respect to wrongful injury to real property, there are two rules of damages: (1) the so-called “diminution in value” rule, which is the difference between the value of real property before and after the injury; and (2) the cost of repairing or restoring the property to its condition prior to the injury, usually referred to as the “restoration” rule. Often times, the damages will compute out the same under either rule. But there are those cases in which there would be a considerable disparity between the amounts determined by the two rules. This case obviously falls in the latter class.

To begin with, the Benefields purchased the main 750 acre tract herein in 1973 and paid approximately $466 per acre. As noted, only 26 acres of this tract were injured; and to restore or repair these 26 acres, using the figures as found by the trial court, it would cost $13,084 per acre. The disparity is patent.

Under these circumstances, while there is some conflict in authority, the general rule appears to be that the cost of restoration will not be awarded if it is more than the diminution in market value. This is particularly true in those cases in which the injury to the land results in subsidence or other severe damage caused by mining operations.

Some of the cases around the country, however, Florida apparently among them, consider significant the distinction between permanent injuries and temporary or reparable injuries, the measure in the former class generally being the diminution in value rule and in the latter the cost of restoration rule. Often times, though, the question of permanency goes begging. With respect to buildings and improvements which have a value separate from the land, the determination of permanency is relatively easy. But due largely to the fact that land itself can never really be completely destroyed, a clear definition of permanent injury to land becomes more difficult.

Under the facts here, however, we think no such distinction need be made. Looking to the reason why a distinction is made in the first place and why, when the injury is temporary, the restoration rule is generally applied, the rationale appears to be that if the diminution of value rule were to be applied when the cost of restoration is less the plaintiff would be overcompensated in that he would enjoy recovery of the decreased value of the land and then be in a position to repair the damage at the lesser cost, thus making a profit on the difference. On the other hand, it seems clear that if the cost of restoration grossly exceeds the diminution in value the fear of a plaintiff’s windfall could not materialize. Accordingly, there are those cases which under such circumstances apply the diminution in value rule even though the injury complained of is temporary or reparable. The injury is deemed, in effect, permanent. We think this is the sounder approach.

We hold, therefore, that with respect to damages for wrongfully injured real property, where, as here, the cost of restoration or repair so greatly exceeds the diminution in value of the land that there is no reasonable likelihood that the plaintiff would be overcompensated by a double or overlapping recovery, no determination need be made as to permanency. The injury will be deemed permanent as a matter of law; and the measure of damages therefor is the diminution in value because of the injury. This measure is appropriate, moreover, notwithstanding the uniqueness of real property or the desires of the plaintiff with respect to a prospective or intended use, and even though the property may be totally destroyed and cannot reasonably be used for that purpose. In the latter case, its full value undamaged is the measure, which conceivably could be the case here.

In view whereof, the judgment appealed from should be, and it is hereby, affirmed with respect to the award of damages in the sum of $50,691 representing the value of the phosphate wrongfully removed from the property in question. With respect to the additional amount of $327,543.30 awarded for the cost of restoring the injured property, the judgment should be, and it is hereby, reversed; and the cause is remanded for further proceedings deemed appro- . priate to determine the amount of damages payable to appellees under the diminution in value rule discussed herein.

Affirmed in part; reversed in part.

SCHEB and OTT, JJ., concur.

      . It appears the term is clear and unambiguous on its face and thus not amenable to parol. But the court took testimony anyway and came to the same conclusion. We accept that.

      . See 22 Am.Jur.2d Damages § 132 at p. 191.

      . Id. at p. 192.

      . Anno. 135 A.L.R. 1142.

      . See Atlantic Coast Line R. Co. et al. v. Saffold, 130 Fla. 598, 178 So. 288 (1938); Standard Oil Co. v. Dunagan, 171 So.2d 622 (Fla. 3d DCA 1965).

      . See 22 Am.Jur.2d Damages § 135 at p. 196.

      . See Phillips v. Chesson, 231 N.C. 566, 58 S.E.2d 343 (1950); Texas Electric Service Coin-pany v. Linebery, 333 S.W.2d 596 (Tex.Civ. App.1960).

      . See, e. g., Alesko v. Union Pac. R. Co., 62 Idaho 235, 109 P.2d 874 (1941); Hartshorn v. Chaddock, 135 N.Y. 116, 31 N.E. 997 (1892); Ellison v. Walker, 281 P.2d 931 (Okl.1955); Rabe v. Shoenberger Coal Co., 213 Pa. 252, 62 A. 854 (1906); Burr v. Clark, 30 Wash.2d 149, 190 P.2d 769 (1948). Also cf. General Outdoor Advertising Co. v. LaSalle Realty Corp., 141 Ind.App. 247, 218 N.E.2d 141, 151 (1966).

      . See Anno., 1 A.L.R.3d, § 3b, p. 807.

      . See n. 5, supra.

      . See, e. g., Missouri Pacific Railroad Company v. Clements, 225 Ark. 268, 281 S.W.2d 936 (1955); Boise Valley Const. Co. v. Kroeger, 17 Idaho 384, 105 P. 1070 (1909).

      .We emphasize here that we are concerned only with compensatory damages and not punitive damages assessable for willful, intentional or gross invasion of property rights. The latter may well exceed the full value of the land.


text:
    William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Gene FLEMING, as guardian of Viola DeVaughn, et al., Appellees. William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, v. Charles H. DIAMOND and H. H. Stone, Appellees. William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Norris FLEMING and Santa Rosa County Teachers’ Federal Credit Union, Appellees. William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Walter L. REED, Appellee. William FLEMING, as administrator of the Estate of Viola DeVaughn, Deceased, Appellant, v. Charles D. MUSE and Martha Muse, Appellees.
    Nos. CC-7 to CC-11.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1977.
    Rehearing Denied Dec. 29, 1977.

      Guyte P. McCord, III and Cynthia S. Tun-nicliff of Law Office of Sam Spector, P. A., Marion D. Lamb, Jr., and W. K. Whitfield, Tallahassee, for appellant.
    Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellees Gene Fleming, Norris Fleming, and Muse.
    John M. Davis of Fitzgerald & Davis, Milton, for appellees Diamond and Stone.
    Earl L. Lewis, Milton, for appellee Reed.
   PER CURIAM.

In these actions appellant William Fleming, administrator of the estates of Harry and Viola DeVaughn, seeks to set aside four deeds executed by the DeVaughns before their deaths and contests appellee Gene Fleming’s ownership of the contents of bank accounts held jointly by him and the DeVaughns. The administrator contends (1) three of the deeds were invalid because Mrs. DeVaughn was incompetent to execute them; (2) another DeVaughn deed to appel-lee Norris Fleming, executed also by appel-lee Gene Fleming as Mrs. DeVaughn’s guardian, was invalid because he was not yet appointed her guardian; (3) all the deeds were ineffective because they were conditionally delivered, subject to return on demand by the DeVaughns; and (4) Gene Fleming’s accession by right of survivorship to bank accounts owned by the DeVaughns should be set aside because he obtained his interest in the accounts through undue influence over the DeVaughns. The trial court ruled in favor of the grantees and Gene Fleming.

The DeVaughns, who were married 40 years but had no children, owned 280 acres of land near Jay and cash in several bank accounts. They wanted to convey this property before their deaths to avoid the need for wills and the necessity of probate. In January or February of 1972 the De-Vaughns delivered a deed executed September 20, 1968, to their neighbor and close friend, Walter L. Reed. That deed conveyed 40 acres but reserved a life estate in the grantors. Reed was told not to record it until the death of one of the DeVaughns. At that time the DeVaughns also delivered to Reed three similar deeds conveying other parcels of land to Norris Fleming, Charles Muse, and Charles Diamond and H. H. Stone together. The DeVaughns instructed Reed to deliver those deeds to the named grantees when either of the DeVaughns died, unless they earlier requested him to return the deeds. In March of that year Mr. DeVaughn asked for those three deeds back. Mr. Reed returned them, but kept his own.

Mrs. DeVaughn was adjudicated incompetent on July 28, 1972. An examining committee of two psychiatrists and Mr. Muse reported they found Mrs. DeVaughn incompetent due to organic brain syndrome. The committee also found she suffered from psychosis, disorientation, confusion, and occasional agitation, all complicated by Paralysis Agitans, and was unable to attend to her affairs. County Judge Joe Dan Tort-man, however, questioned Mrs. DeVaughn for about fifteen minutes during her hearing and found her physically but not mentally incompetent. No guardian was appointed at that time.

Between January and May 1973, the name of Gene Fleming, a nephew of the DeVaughns, was added to the signature cards of several checking and savings accounts held by the DeVaughns in amounts totaling about $30,000.00. In early June 1973, almost a year after Mrs. De-Vaughn’s adjudication of physical incompetency, the DeVaughns delivered to Norris Fleming the deed to him which had. been retrieved from Mr. Reed. The deed contained an incorrect legal description of the 80 acre property, and a short time later the DeVaughns gave Norris Fleming a corrective deed. On July 16, 1973, the De-Vaughns executed and delivered yet another deed to the same property, joined in by Gene Fleming in his capacity as guardian of Viola DeVaughn, to Norris Fleming. Gene Fleming was not appointed guardian of Mrs. DeVaughn until two days later.

Harry DeVaughn died August 30, 1973, survived by his wife. Shortly thereafter several deeds were recorded. Walter Reed recorded his deed on September 4, 1973. A week after Mr. DeVaughn’s death, Mrs. J. P. Allen received in the mail a deed, executed by the DeVaughns August 24, 1966, conveying 40 acres to Mrs. Allen’s daughter and son-in-law, Martha and Charles Muse. Mrs. Allen recorded that deed on September 7, 1973, and gave it to the Muses. No evidence introduced at trial showed who mailed the deed to Mrs. Allen. Charles Diamond and his wife similarly received a deed executed by the DeVaughns April 18, 1968, conveying some 40 acres to them and H. H. Stone, and they recorded it November 14, 1973.

Mrs. DeVaughn died June 24, 1974. Appellant then sued Gene Fleming and the deed grantees, alleging Gene had mismanaged the guardianship assets, breached his fiduciary duties and acquired his interest in the bank accounts through undue influence, and seeking to set aside the Norris Fleming, Reed, Muse, and Diamond and Stone deeds. The trial court found that, although Gene occupied a confidential relationship with Viola DeVaughn, the evidence negated any claim of undue influence. The judge found the overwhelming weight of testimony showed Mrs. DeVaughn had been mentally, if not physically, competent to handle her affairs when the conveyances were made. He also found the deeds were effectively delivered.

Viola DeVaughn’s competency; Gene Fleming’s influence.

An adjudication of either physical or mental incompetency as defined by Section 744.31, Florida Statutes (1973) carried a presumption that the incompetent is not capable of managing his property. But the presumption is not conclusive; it may be overcome by proof that the person is in fact capable at the time of any transaction. Horace v. Culver, 111 So.2d 670 (Fla.1959); White v. Padgett, 475 F.2d 79 (5th Cir. 1973), cert. den., 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973). Here, the trial court found the evidence showed Mrs. DeVaughn was competent at all material times to manage her property despite the adjudication of physical incompetency. We cannot disturb this finding unless the evidence shows it is clearly erroneous. Waterman v. Higgins, 28 Fla. 660, 10 So. 97 (1891).

In Waterman the Supreme Court was concerned with Waterman’s mental condition at the time he executed a deed to his wife. Upon reviewing abundant evidence showing Waterman was entirely incompetent, the court observed no question existed-that Waterman was an old man, feeble and, at his death three months later, was wholly incapacitated to transact business. In affirming the trial court’s decision sustaining the deed, the Court specifically noted that Waterman sent for an attorney and gave instructions about preparing the deed. The attorney testified that he perceived nothing to indicate that Waterman lacked mental capacity.

Here, after reviewing extensive testimony, the trial court found that Viola De-Vaughn was mentally competent to make the bank transfers and to execute and deliver the challenged deeds. The court found also that, although Gene Fleming had a confidential relationship with Viola De-Vaughn, the evidence negated any inference of undue influence. This record reflects substantial competent evidence to support the trial court’s resolution of the factual questions. Travis v. Travis, 81 Fla. 309, 87 So. 762 (1921).

These factual conclusions also establish the validity of the July 16, 1973 deed to Norris Fleming. Gene Fleming’s signature on the deed is immaterial because Mrs. De-Vaughn was competent to execute a deed on that date.

Delivery of the deeds.

The DeVaughn deeds to appellees Muse, Diamond and Stone were valid. Those deeds were delivered conditionally to Reed, as were others, with instructions that he deliver them to the grantees upon the death of either of the De Vaughns, unless Reed was sooner requested by the De-Vaughns to return the deeds. If without further incident one of the De Vaughns had died and Reed had then sought to complete the transactions by delivering the deeds still in his hands, the conveyances would be invalid because the grantors did not relinquish control of them by delivery to Reed, their agent. Pratt v. Carns, 80 Fla. 243, 85 So. 681 (1920); Williams v. Williams, 149 Fla. 454, 6 So.2d 275 (1942); Brown v. Hutch, 156 So.2d 683 (Fla. 2d DCA 1963), cert. den., 162 So.2d 665 (Fla.1964). But in this case the De Vaughns’ conditional delivery of the deeds to Reed was itself avoided by the De Vaughns’ action, during both their lives, in taking back the deeds from Reed. The conditional delivery to Reed therefore did not destroy the efficacy of the deeds or make unconditional delivery of the same deeds thereafter impossible.

After the death of Mr. DeVaughn, but during the lifetime of Mrs. DeVaughn, the deeds were delivered to the grantees. The trial court has found as a fact that Mrs. DeVaughn was competent when the deeds were delivered. Appellant has not overcome that finding. On the evidence so viewed, we must conclude it was Mrs. De-Vaughn who delivered the deeds or caused them to be delivered, acting intelligently in accordance with the plans she and her husband made and adhered to over the preceding years. Appellant has suggested no reason in law why the deeds so delivered should not be given effect, as the trial court has done. Mrs. DeVaughn was the heir of her deceased husband, Section 731.23, Florida Statutes (1973), so if there was any impediment to the delivery after Mr. De-Vaughn’s death of a deed of which he was grantor, his joinder in the deed may be disregarded and Mrs. DeVaughn’s conveyance may be recognized.

The trial judge properly concluded the DeVaughn deed to appellee Reed was valid when delivered to Reed in January or February 1972. Although the evidence showed delivery of the deed was conditional since it was subject to recall, parol evidence is not competent to prove conditions not shown on the face of a deed delivered to the grantee. “[Wjhere delivery is made to the grantee . delivery is said to be absolute and the conditions annexed to the delivery are ineffective.” 1 R. Boyer, Florida Real Estate Transactions § 9.04[5][d] at 155 (1976); Haworth v. Norris, 28 Fla. 763, 10 So. 18 (1891).

The judgments are AFFIRMED.

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


text:
    EDWARD L. NEZELEK, INC., and the Travelers Indemnity Company, Appellants, v. EASTERN ELEVATOR CO., INC., a Florida Corporation, Appellee.
    No. 76-887.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 4, 1978.
    Stephen H. Cypen of Cypen & Nevins, Miami Beach, for appellants.
    Sheldon R. Rosenthal, Miami, for appel-lee.
   PER CURIAM.

The summary final judgment entered in favor of appellee, Eastern Elevator Co., Inc., and against appellant, Edward L. Nezelek, Inc., in an action to foreclose a subcontractor’s mechanic’s lien is reversed on the authority of Mathews Corporation v. Tutten Enterprises, 343 So.2d 902 (Fla.4th DCA 1977), and the cause remanded for further proceedings.

Reversed and remanded.

CROSS, DOWNEY, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: DAUKSCH, Judge.

text:
    Donald R. CREWS and Lucille G. Crews, husband and wife, Appellants, v. The DANIA BANK, a Florida Banking Corporation, Marinoff Construction of South Florida, Inc., a Florida Corporation, Herbert S. Freehling, as trustee in bankruptcy of Marinoff Construction of South Florida, Inc., Richard E. Biery and Jay Ann Biery, husband and wife, Apple Creek Development Corp., a Florida Corporation, and Elias Bernatan, Appellees.
    No. 77-974.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 6, 1978.
    R. T. Shankweiler of Patterson, Maloney & Shankweiler, Fort Lauderdale, for appellants.
    Dixon Thomas of Walden & Walden, Da-nia, for appellee The Dania Bank.
   DAUKSCH, Judge.

Affirmed on authority of The Hotel & Restaurant Employees & Bartenders International Union v. Lake Buena Vista Communities, Inc., 349 So.2d 1217 (Fla.4th DCA 1977) and Punta Gorda Ready Mixed Concrete, Inc. v. Green Manor Construction Co., 166 So.2d 889 (Fla.1964).

AFFIRMED.

GROSS and LETTS, JJ., concur.