author: McCORD, Judge. RAWLS, Judge

text:
    STATE of Florida ex rel. Robert L. SHEVIN, Attorney General, et al., Appellants, v. INDICO CORPORATION, Appellee.
    No. W-456.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1975.
    Rehearing Denied Oct. 20, 1975.

      Robert L. Shevin, Atty. Gen., Kenneth F. Hoffman and Thomas A. Harris, Asst. Attys. Gen., for appellants.
    L. Charles Hilton, Jr., and Ralph Julian Bennett, Jr., Panama City, for appellee.
   McCORD, Judge.

This is an interlocutory appeal from a final costs judgment entered subsequent to a final judgment on the merits of the case.

This was a suit brought by the State of Florida on the relation of the Attorney General filed against three developers along the Gulf coast of the State of Florida in Bay County seeking to abate an alleged public nuisance allegedly created by dune destruction and building so close to the water as to interfere with natural beach processes, including sand drift, thereby allegedly causing excessive erosion to the public and private beaches. Following a preliminary injunction hearing, at which the relief sought was denied, the state dropped two of the defendants as parties and with permission of the court, filed an amended complaint. Subsequently, the State of Florida Department of Administration, moved for intervention, such intervention being granted. Thereafter, a second amended complaint was filed by the two parties, the State of Florida on relation of the Attorney General and the State Department of Administration. The amended complaint alleged that the construction of Indico Corporation’s Pinnacle Port Condominium project would create a public nuisance pursuant to § 60.05 and 823.05, Florida Statutes. In support of the allegation of public nuisance, the complaint alleged violation of county ordinances of Bay County (which made the Department of Legal Affairs the enforcing agent for the ordinances) and further alleged violations of coastal construction requirements under § 161.052, Florida Statutes, and violations of Development of Regional Impact requirements under Ch. 380, Florida Statutes, and regulations promulgated thereunder. The complaint in addition sought a ruling on certain matters under Ch. 380, Florida Statutes, as requested by the State of Florida, Department of Administration. Appellee’s answer denied all allegations.

Subsequently, the State of Florida conceded that the development of the Pinnacle Port project had commenced prior to the enactment of the Bay County ordinances and that such ordinances therefore were not applicable to the project. The state also admitted that Indico Corporation’s Pinnacle Port, when completed as planned, would not violate the 50-foot setback line imposed by § 161.052, Florida Statutes, and a summary judgment was entered for Indi-co on that issue and on the issue concerning the Bay County ordinances. The parties submitted the issues concerning Ch. 380, Florida Statutes, to the court on stipulated facts and Indico’s motion for summary judgment which the court granted. The remaining unresolved issue which went to final hearing was whether or not the construction of Pinnacle Port, Phase I, would create a public nuisance as defined by the Laws of Florida. Following a four-day trial in which the court heard a number of expert witnesses, final judgment was entered for appellee, the court finding that the construction and development would not create a public nuisance. Costs were reserved for a further hearing and after such hearing, a final judgment taxing costs against the state for a total amount of $32,455.32 was entered. It is this cost judgment from which this interlocutory appeal is taken.

The Attorney General contends that costs should not have been assessed against him in this action brought under § 60.05, Florida Statutes, to abate an alleged public nuisance as defined by § 823.05, Florida Statutes. We agree. § 60.05 provides in pertinent part as follows:

“(1) When any nuisance as defined in § 823.05 exists, the attorney general or state attorney or any citizen of the county may sue in the name of the state on his relation to enjoin the nuisance, the person or persons maintaining it and the owner or agent of the building or ground on which the nuisance exists.
******
(3) . . . If the action is brought by a citizen and the court finds that there was no reasonable ground for the action, the costs shall be taxed against the citizen.
(4) On trial if the existence of a nuisance is shown, the court shall issue a permanent injunction and order the costs to be paid by the persons establishing or maintaining the nuisance . . . ”

The foregoing statute authorizes suit for the abatement of nuisances to be brought by the Attorney General, or State Attorney or any citizen of the county in the name of the state. It also specifies the parties against whom costs may be assessed — (1) a citizen bringing the suit if the court finds that there was no reasonable ground for the action, or (2) the person who establishes or maintains the nuisance if the existence of the nuisance is shown. Neither the Attorney General nor the State Attorney are mentioned as parties against whom costs may be assessed. The rule “expres-sio unius est exclusio alterius” (which means “express mention of one thing is the exclusion of the other”) is an often applied and cardinal rule of statutory construction. Dobbs v. Sea Isle Hotel, Fla., 56 So.2d 341; Ideal Farms Drainage District v. Certain Lands, 154 Fla. 554, 19 So.2d 234; Bergh v. Stephens, Fla.App. (1st), 175 So.2d 787; Biddle v. State Beverage Department, Fla.App. (4th), 187 So.2d 65. The rule is applicable here. By express mention in the statute of those against whom costs may be assessed in an action for abatement of a nuisance, the legislature apparently intended to exclude from assessment of costs the two not mentioned — the Attorney General and the State Attorney. Evidently, the legislature wished to leave these two state officials free to attempt abatement of alleged public nuisances without the deterrent of having costs assessed against them if they are unsuccessful. The legislature did not even include them with the qualifying factor (reasonable grounds for the action) which it placed upon a citizen bringing such an action if the citizen were to escape assessment of costs against him.

Appellee contends that the opinion of the Supreme Court in Simpson v. Merrill, Fla., 234 So.2d 350 (which affirmed the opinion of this court) is controlling. There the Supreme Court held that under the general costs statute, § 57.041(1), Florida Statutes, costs may be taxed against the state and its agencies, in favor of the party recovering judgment. The Supreme Court said:

“ . . . Florida Statutes § 57.041 F. S.A. provides for the recovery of legal costs by the party recovering the judgment in all cases except those specifically exempted. The exemptions in the statutes do not include the State or its agencies and we can find no basis for reading such an exemption into the plain language of the Act.”

In the case sub judice, § 57.041 must be considered in pari materia with § 60.05. Upon doing so, we reach the inescapable conclusion that costs may not be taxed against the Attorney General or a State Attorney who brings an action to abate an alleged public nuisance.

Reversed.

BOYER, C. J., concurs, and RAWLS, J., dissents.

RAWLS, Judge

(dissenting).

A brief review of the origin of this litigation is of paramount importance in considering the majority’s opinion. The Attorney General, “ . . . as parens pa-triae, trustee, guardian and representative, in behalf of the citizens and residents of the State of Florida, . . . ” [emphasis not supplied] filed an amended complaint for injunctive relief against appellee Indico Corporation to enjoin its development of three gulf-front condominium projects in the beaches area of Bay County, wherein he basically alleged:

“ . . . [T]he projects violated Section 161.052, Florida Statutes, which prohibits building within 50 feet of the line of mean high water; that the projects violated Bay County Ordinances 73-2 and 73-4 which require permit from the County for certain coastal construction; that the projects when completed as planned would accelerate natural erosion by interfering with coastal processes and thereby constitute a public nuisance; and that in the case of Pinnacle Port, the development would also violate Chapter 380, Florida Statutes, re developments of regional impact.”

The trial court in its final judgment (the merits of which have not been appealed by the Attorney General) found, inter alia:

“Plaintiff [appellant] subsequently conceded that development of the Pinnacle Port project had commenced prior to the enactment of Bay County Ordinances 73-2 and 73-4, and that such ordinances therefore were not applicable to such project. Plaintiff also admitted that defendant [appellee] Indico Corporation’s Pinnacle Port when completed as planned would not violate the 50-foot setback line imposed by Section 161.052, Florida Statutes, and a Summary Judgment was entered for defendant Indico on that issue, and on the issue concerning Bay County Ordinances 73-2 and 73-1.
“The parties submitted the issues concerning Chapter 380, Florida Statutes, to the Court on stipulated facts and defendant Indico’s Motion for Summary Judgment, which the Court later granted.
“The remaining unresolved issue as stated in the Pre-Trial Order was as follows:
“Whether or not the construction of defendant’s project, Pinnacle Port, Phase I, will create a public nuisance as defined by the law of Florida.
“(1) The Florida Department of Natural Resources had investigated and made an administrative " determination that the construction of the project in issue was located considerably landward of the mean high water mark and would not vi-oíate the statutory 50-foot setback line.
“(2) That the construction of Pinnacle Port, Phase I, will not cause the beaches to erode nor will it accelerate any natural erosion of the beaches; that the actual weight of the credible evidence shows accretion rather than erosion.
“(3) The buildings of Pinnacle Port, Phase I, are well designed and are adequate for their intended use or purpose; the structural integrity of the said buildings in relation to the coastal processes was not questioned by the State or its witnesses. The buildings, with the exception of the westernmost building, have been laid out and the foundations constructed so that they are located an average of 35 feet landward of the natural vegetation line, with the nearest being 20 feet from the vegetation line, and the fartherest [sic] being 55 feet from the vegetation line. The westernmost building has been located slightly north and east of its planned location so that it is situated considerably more than 55 feet landward of the vegetation line. No part of any of the buildings is located closer than at least 90 feet from the mean high water line, as it was established at the commencement of construction, with the greater part of the construction located at least 120 feet landward of the mean high water line as it existed at the commencement of construction, all as shown on plaintiff’s composite Exhibit No. 3. All of the evidence shows that the buildings of Pinnacle Port, Phase I, are located considerably more landward from the mean high water line than the great majority of all other commercial construction on the South side of U.S. Highway 98 in the Panama City Beach area.
......
“(4) The Court finds that the construction and development of defendant’s project will not violate any constitutional, statutory, or regulatory provision, and will not create a situation which will result in obstruction to the use of soverign [sic] beaches and will not subject adjacent and nearby beaches and buildings to erosion and danger to human life and property as alleged in the complaint.
“(5) The Court finds that the construction and development of defendant’s project known as Pinnacle Port, Phase I, will not create a public nuisance as alleged in the Complaint.
“(6) Preservation of our beautiful beaches is a commendable goal. The State of Florida has adequate and legal means of acquiring and preserving these beaches for the public use. This cannot be done at the expense of a private property owner without just compensation, because under the law, they enjoy the same constitutional safe guards as the owner of the most humble home in our State.”

As the Attorney General so ably delineates in his brief, it is well known that in equity cases costs need not follow the result of the suit. He then reasons that as the Chief Legal Officer of the State, who is acting under his duty to protect the public welfare, it would be inequitable to tax the costs against him (the taxpayers). The fallacy of this argument is that in this modern era of state governmental interests in the environmental welfare, the Attorney General is not the sole protector of the public interest. As disclosed by the final judgment rendered herein, the Florida Department of Natural Resources had investigated and made an administrative determination as to compliance with the myriad statutory regulations of the multiple governmental agencies' charged with protecting the public interest. Of even greater import is that the action instituted by the Attorney General alleged not only public nuisance but also alleged violations of various county ordinances, state statutes, and general concepts of law such as trespass. Each of these various allegations were receded from by the Attorney General only after the appellee presented insurmountable proof that he could not prevail, resulting in the trial court entering several summary judgments in favor of appellee Indico Corporation and reserving jurisdiction to award costs pending final outcome of the proceedings.

When sitting as a member of the Supreme Court in Corneal v. State Plant Board, 101 So.2d 371 (Fla.1958), Judge Wigginton, an outstanding Judge of this Court, foresaw a landowner’s plight when confronted by the overpowering might of the sovereign when he stated in his dissenting opinion:

“When the general government acting through any of its many officers, boards, bureaus, commissions, departments or agencies, takes or threatens action calculated to deprive a person of his property unlawfully and without the payment of just compensation, that person should be permitted to seek protection of the courts without suffering an undue penalty as the price thereof.
“The cost of a successful proceeding instituted by one in the protection of his constitutional rights to restrain the unlawful exercise or abuse of governmental power should not fall on the threatened party, but on those whose action make the institution of the proceeding necessary.”

His foresight was vindicated by the Supreme Court in Simpson v. Merrill, wherein Justice Boyd, speaking for the Court, said:

“We are aware of decisions holding the State and its agencies immune from taxation of costs of litigation. We are also aware that governmental agencies today directly effect the lives and property of private citizens more than at any time in the past. This trend has given rise to increased litigation as individuals contest the demands of government. When, through litigation, these demands are determined to be unlawful, the government, like any other party, should be compelled to pay the costs of the litigation.
“To require successful litigants against the State and its agencies to pay their own costs offends our basic sense of fairness and may well be a violation of due process of law.”

In fulfilling his general constitutional responsibility to represent the interests of all the people, the Attorney General has a concurrent duty to evaluate the efforts of other governmental agencies in performing their specific responsibilities as to given areas. In the environmental field, the legislature has, to a great extent, preempted the Attorney General’s responsibilities by establishing and delegating the governmental powers in this field to a host of State agencies charged with the duty of protecting and safeguarding the natural resources of this State. The final judgment speaks for itself. Obviously, the Attorney General in this instance did not fully evaluate the findings of the other governmental agencies prior to launching the broad allegations stated in the instant complaint.

As to the question of equity in the assessment of costs, it is my view that the trial judge, who entertained the initial request for a preliminary injunction and who conducted the hearings upon the Attorney General’s multi-pronged attack against this landowner which resulted in a final judgment in favor of the landowner, necessarily concluded that the equities were wholly in the landowner’s favor. I wholeheartedly agree.

Finally, the majority has seized upon an isolated provision in Florida Statute 60.-05(3) and applied to it the doctrine of “ex-pressio unius est exclusio alterius” to conclude that under no circumstances are costs to be assessed against the State when the State initiates an action pursuant to Florida Statute 60.05. Long prior to the enactment of the predecessor of Florida Statute 60.05(3), the Supreme Court of Florida in Lewis v. Yale enunciated the doctrine to he followed in assessing costs in equity actions, and this doctrine has continued to be applied in the jurisprudence of this State subsequent to the enactment of Florida Statute 60.05. Just last year, this Court in Flagala Corporation v. Hamm, in an opinion authored by Judge McCord, again reiterated this equitable principle wherein we quoted from the Supreme Court’s opinion in Akins v. Bethea, viz:

“ ‘It has long been a fundamental rule of equity jurisprudence that in a chancery cause costs should be awarded as the justice of the case may require. Wilhelm v. Adams, 102 Fla. 669, 136 So. 397; News-Journal Corporation v. Gore, 147 Fla. 217, 2 So.2d 741. Accordingly, a court of equity, in the exercise of a sound judicial discretion, may decree that the costs shall follow the result of the suit; may apportion the costs between both parties; or may require that all costs shall be paid by the prevailing party. In either situation, an appellate court will not disturb the ruling of the chancellor, unless a clear abuse of discretion is made to appear.’ ” [Emphasis supplied]

The majority in the instant cause has completely ignored this time-honored principle of law which governs the award of costs in equity actions. Certainly the facts in this litigation show that the equities of this cause have at all times rested with appellee Indico Corporation, and that due to the Attorney General’s complaint for injunctive relief, Indico Corporation had to expend large sums of money to protect and defend its rights.

I would, in affirming the judgment of the trial court, dismiss this interlocutory appeal.

      . These are the allegations recited by the trial court in its final judgment.

      . The trial court also recited in its final judgment that: “The issues of this cause were further complicated by a petition to intervene filed by the State of Florida Department of Administration in connection with the issues concerning Chapter 380, Florida Statutes, as to the development of regional impact.”

      . Schwartz v. Zaconick, 74 So.2d 108 (Fla.1954), wherein the Supreme Court stated: “The general rule is that costs follow the results of the litigation but in equity this rule inay be departed from according to the circumstances.”

      . Citing State ex rel. Landis v. S. H. Kress & Co., 115 Fla. 189, 155 So. 823 (1934).

      . Simpson v. Merrill, 234 So.2d 350 (Fla.1970).

      . Lewis v. Yale, 4 Fla. 441 (1852).

      . Flagala Corporation v. Hamm, 302 So.2d 195 (Fla.App.1st 1974).

      . Akins v. Bethea, 160 Fla. 99, 33 So.2d 638 (1948).

      .Where the course and conduct of the losing party have been the chief cause of great accumulations of cost, then in equity actions the losing party shall bear the burden of the cost. Lewis v. Yale, supra.


source: Caselaw Access Project

author: BOARDMAN, Judge.

license: Public Domain

text:
    YAUN FARMS, INC., a Florida Corporation, et al., Appellants, v. Richard B. BOWDEN et al., Appellees.
    No. 74-1358.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.

      Julian D. Clarkson, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
    Lawrence U. L. Chandler of Hamilton, James, Merkle & Young, West Palm Beach, for appellees.
   BOARDMAN, Judge.

On May 20, 1916, South Florida Farms, Inc. subdivided certain lánd which now lies within the present boundaries of Glades County. The original recorded subdivision plat (which was entered into evidence) reserved a 40-foot right of way consisting of a roadway and ditch which is the subject matter of this appeal. There was no formal dedication of this recorded right of way.

Plaintiffs/appellees and defendants/appellants are owners of tracts of land which lie contiguous and adjacent to this right of way. Appellees instituted the action seeking a declaration that the platted roadway and ditch had become a public right of way through usage even though never formally accepted. Appellants answered on the ground that the right of way had never been accepted by the sovereignty or through public use. These contentions were the sole issues tried before the trial court and are now before us for review.

After hearing, the trial court entered its order finding a public acceptance of the right of way through public use and that appellants failed to show sufficient adverse use which would defeat public interest. In addition, the court ordered appellants to remove any growing crops and/or personal property which is located on the 40-foot strip in issue.

We have reviewed the record, read the briefs of the respective parties and heard oral argument. We hold that the trial court’s order of October 24, 1974, should be affirmed. Based upon the evidence in the record before us, we conclude that the trial court was eminently correct in holding the disputed strip to constitute a public right of way.

At oral argument it was requested by appellants’ counsel that the pump and/or other personal property of appellants be permitted to remain on the right of way until such time as they actually impair the public use. The appellants’ request may indeed have merit. Inasmuch, however, as it appears from the record that this question was not decided by the trial court, we cannot here determine whether the appellants’ pump and/or personal property located in the right of way constitutes an impairment of the public use of the right of way. We affirm the judgment of the trial court, but remand the cause for a determination by the trial court as to whether the continued maintenance by appellants of the personal property is incompatible with the right of the public to use the right of way. If, after hearing, the trial court, sitting as a court of equity, determines to allow the appellant to continue to maintain personal property on the right of way, such approval shall be subject to be discontinued at any future time upon a finding by the trial court that such use is an impairment or hinderance to the public right of use of the right of way.

The trial court shall retain jurisdiction of the parties and the subject matter of the instant case for the purposes hereinabove expressed. Accordingly, we affirm the final judgment of the trial court, but remand for further proceedings consistent with this opinion.

Affirmed and remanded.

McNULTY, C. J. and SCHEB, J., concur.


author: PER CURIAM.

text:
    Ronnie Gerome DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. Y-169.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1975.
    Rehearing Denied Oct. 20, 1975.
    Ronnie Gerone Douglas, in pro per.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

We have studied the briefs of counsel and inspected the record on appeal. There is no error in the order appealed from. Russ v. State, 313 So.2d 758 (Fla.1975); Mullican v. United States, 252 F.2d 398 (5th Cir., 1958). The order appealed from is

Affirmed.

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


author: DOWNEY, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Randall Charles WHEELUS, Individually and as a former minor incompetent, by his father and next friend, Charles Raymond Wheelus, et al., Appellees.
    No. 74-919.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.

      Paul H. Lee, Jr., of Gurney, Gurney & Handley, P.A., Orlando, for appellant.
    Philip H. Blackburn of Billings, Frederick, Wooten & Honeywell, Orlando, for appellees, Randall Charles Wheelus and Charles Raymond Wheelus.
    Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellees Charles Floyd and Fla. Coca-Cola Bottling Co.
   DOWNEY, Judge.

Appellant, Government Employees Insurance Company (GEICO), seeks reversal of a final judgment dismissing with prejudice its complaint seeking to enforce subrogation rights.

The complaint in question alleged, among others, the following things. Several members of the Wheelus family were injured in an accident with an uninsured motorist while they were riding as passengers in an automobile owned by LaPlant, who was insured by appellant GEICO. Appellant, having made uninsured motorist coverage payments to the Wheeluses in 1967, filed a notice of lien in a suit (arising out of the same accident) which the Wheeluses thereafter brought against ap-pellees Florida Coca-Cola Bottling Company and Charles Floyd. That suit was settled and the cause dismissed without payment of appellant’s claim. On GEICO’s appeal from an order dismissing its notice of lien, this court held that GEICO was not a party to the proceedings, and that its notice of lien was a nullity, but that the affirmance of the dismissal of GEICO’s notice of lien was without prejudice to the pursuit of its subrogation rights as provided by law. (Government Employees Insurance Co. v. Wheelus, Fla.App. 1972, 270 So.2d 409.) Thus, appellant brought this suit against the appellees Wheelus, Florida Coca-Cola Bottling Company, and Charles Floyd on January 21, 1974, asserting its subrogation rights to recover what it alleges were uninsured motorist payments it previously made to the Wheeluses.

All the appellees filed motions to dismiss the complaint, alleging that the statute of limitations barred the claim. Appellees Coca-Cola and Floyd also alleged the complaint was defective because the payments appellant had made to the Wheeluses were not for uninsured motorist coverage but rather were for releases of its public liability exposure to the Wheeluses. The trial court entered a final judgment dismissing the cause with prejudice upon the stated ground that “the complaint on its face is in violation of the statute of limitations.”

Appellant contends that the statute of limitations had not run because the cause of action did not accrue until the settlement among appellees Wheelus and Coca-Cola and Floyd had been concluded (January 25, 1971); then, argues appellant, the proceeds from which it was entitled to reimbursement came into being. Appellees (relying on Shanks v. Brothers, Fla.App.1970, 230 So.2d 501) contend the statute of limitations began to run June 8, 1967, the date appellant alleges it made the payments to the Wheeluses. Appellees also contend that the order of dismissal was proper because the payments for which appellant seeks subrogation were not uninsured motorist protection payments.

We note initially that the allegations of appellant’s complaint must be regarded as true and the exhibits attached to the complaint must be regarded in the light most favorable to the allegations thereof. So regarded, those allegations lead us to conclude that the trial court should not have dismissed the appellant’s complaint. Subsequent proceedings in the circuit court may demonstrate that the payments in question were in satisfaction of GEICO’s public liability exposure to the Wheeluses, as appellees contend, in which event GEI-CO would not be entitled to recover. Alternatively subsequent proceedings may show that the payments were uinsured motorist payments as appellant contends. In that event appellant’s claim would have accrued at the time the proceeds of the settlement among the appellees came into being. We would distinguish Shanks v. Brothers, supra, on the basis that the Allstate policy in that case must have contained a provision giving Allstate the right to bring a direct action against the uninsured motorist. Thus the statute of limitations began to run when the uninsured motorist payments were made and the right of action was available to Allstate. Appellant’s claim here allegedly arises out of § 627.0851(4), F.S.1969, and no such direct right of action is contained therein. The subrogation right provided thereby is to the proceeds of any settlement or judgment obtained by the insured. See International Sales-Rentals v. Nearhoof, Fla.1972, 263 So.2d 569.

With regard to the statute of limitations, it appears to us that the trial court was premature in entertaining the defense of the statute of limitations on ap-pellees’ motion to dismiss. Such a defense is an affirmative one (Rule 1.110(d), RCP) and should be set up by answer. In re Estate of Gay, Fla.App. 1974, 294 So.2d 668; Stern v. First National Bank of South Miami, Fla.App.1973, 275 So.2d 58. This is so because certain factors could toll the running of the statute. See Trawick, Fla. Prac. and Proc., § 11-6, (1974).

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

CROSS and OWEN, JJ., concur.

      . It appears that the provisions of § 627.0851 (4), F.S.1969, are no longer in effect. That subsection was substantially amended in 1971. See Laws of Florida, Chapter 71-355, § 182. A subsequent insubstantial amendment appears to have been rendered ineffective. Compare §§20 and 22 of Chapter 71-970, Laws of Florida, with O’Malley v. Florida Insurance Guaranty Ass’n, Fla.1971, 257 So.2d 9.
      Section 627.0851, F.S., was renumbered 627.727, F.S. See table at 18A FSA, p. 498. It thus seems that § 627.0851(4), as amended by Chapter 71-355, is now in the Florida Statutes as § 627.727(4).
      Although it appears that § 627.0851(4), F.S.1969, is now ineffective, that subsection was effective when appellant made the payments for which it seeks subrogation. Hence that subsection is available to appellant as a basis for recovery. See International Sales-Rentals Leasing Co. v. Nearhoof, infra.


text:
    PALDOR DEVELOPMENT COMPANY, a Florida Corporation and Titan Group, Inc., a Foreign Corporation, Appellants, v. Dale W. ALEXANDER and Charles Henderson, d/b/a Frances Henderson Realty Company, Appellees.
    No. 73-1218.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1975.
    Rehearing Denied Oct. 21, 1975.
    Robert D. Chapin of Gezelschap & Chapin, P.A., Delray Beach, for appellant-Paldor Development Co.
    Kirk Sullivan of Adams, Sullivan & Coogler, West Palm Beach, for appellees.
   PER CURIAM.

Our study of the briefs and examination of the testimony at trial convinces us that the judgment on appeal is supported by competent substantial evidence.

Affirmed.

MAGER and DOWNEY, JJ., and ALDERMAN, JAMES E., Associate Judge, concur.


text:
    CITY OF MIAMI SPRINGS et al., Appellants, v. Larry Brannon CARR, Appellee. Tilton L. CHESTER, and Vera Chester, Appellants, v. Larry Brannon CARR, Appellee.
    Nos. 74-1686, 74-1743.
    District Court of Appeal of Florida, Third District.
    Sept. 2, 1975.
    Rehearing Denied Oct. 15, 1975.

      High, Stack, Davis & Lazenby and Alan R. Dakan, Noriega & Bartel and Bill Shu-ford, Jr., Miami, for appellants.
    Hacker & Phelps, Miami, for appellee.
    Before PEARSON and HENDRY, JJ., and DREW, E. HARRIS (Ret.), Associate Judge.
   DREW, E. HARRIS (Ret.), Associate Judge.

Larry Brannon Carr sued Tilton Chester and Vera Chester, Miami Springs and its Chief of Police and City Clerk. His complaint was in four counts purporting to allege causes of action against said defendants jointly for (1) malicious prosecution, (2) negligence, (3) conspiracy, and (4) abuse of process. The jury returned two verdicts — the first finding for the plaintiff and awarding two thousand dollars compensatory damages and four thousand dollars punitive damages. This verdict was titled Larry Brannon Carr vs. Tilton L. Chester and Vera Chester. The second verdict was in favor of plaintiff for four thousand dollars damages and was titled Larry Brannon Carr v. The City of Miami Springs, Fla., a political subdivision of the State of Florida and E. C. Steffen, Chief of Police of the City of Miami Springs and Margaret H. Sanders, Clerk of the City of Miami Springs, Fla. At the conclusion of plaintiff’s case, defendants moved for a directed verdict for failure of the plaintiff to prove any cause of action against defendants, which motion was renewed after all evidence was presented. Both motions were denied by the trial judge. Post trial motions were also denied and separate judgments entered on each verdict. Appeals were taken from each judgment and both have been consolidated for appeal purposes.

The suit arose out of the following facts:

Tilton Chester, Miami Springs Building and Zoning Director, resided with his wife in a second floor apartment at 333 Cory Drive, Miami Springs. Their peace and quiet were “completely disrupted” by a barking, howling, yowling dog. They could see this dog, of a bluish-gray color, in a nearby yard at 352 Linwood Drive. The owner of the house seemed never to be at home, and Mr. Chester received no response on at least three occasions when he knocked on the door. The barking and howling continued. Mr. Chester believed this dog to be a “nuisance barker”. Having been told by police that Larry Carr was the owner, Chester swore out a warrant for Carr’s arrest. Carr was arrested, but charges were dismissed against' him when Chester, who had never seen Carr before in his life, failed to identify him as the owner of the dog, named “Misty”.

After the jury had retired the foreman sent a note to the judge reading:

“Due to Mr. Chester’s confusion on the witness stand as to whether he acted as a private citizen or as a city official, would the City of Miami Springs necessarily be liable? We need clarification as to what constitutes an employers liability for the actions of an employee.”

On consideration of the request, and without objection, the court then charged the jury as follows:.

“An agent or employee is a person who is a person who is employed to act for another and whose actions are controlled by his employer or are subject to his employers right of control. An employer is responsible for the negligence of his agent or his employee if such negligence occurs while the agent or employee is performing services which he is employed to perform or while the agent or employee acting at least in part because of the desire to serve his employer, and is doing something that is reasonably incidental to his employment or something that the doing of which was reasonably foreseeable and reasonably to be expected of persons similarly employed.”

The injection of the question of negligence in this suit for malicious prosecution even though at the time it was given no objection was made, so infected the trial that it would have to be returned for a new trial had the greater error of failure to prove a cause of action not occurred.

The identical question is discussed at length in the Wilson case by the First District and the holding in Wilson on almost identical facts is controlling here. The jury’s question and the court’s reply (made and given at the time and under the circumstances disclosed), coupled with the verdict against the City and its two named officials, leave no doubt that the verdict was erroneously based on the theory that the City was liable for the negligence of its Building Inspector and other officials. On this point the First District in Wilson said:

“We are convinced that there exists no cause of action like that alleged here in that there is no legally-recognized cause of action for improperly swearing out an arrest warrant other than the old common law action of malicious prosecution.” 118 So.2d at 104.
“The public policy aspects of our holding on this appeal are easily apparent. On the one hand, surely citizens should be given some protection against the irresponsible instituting against them of civil or criminal proceedings by other persons, even law enforcement officers. See Melvin v. Pence, 1942, 76 U.S.App.D.C. 154, 130 F.2d 423, 143 A.L.R. 149. On the other hand, law enforcement and the protection of society from crime would likely be adversely affected if law enforcement agents were subject to liability in damages for simple negligence in the performance of their duties if the citizens they charge with crime should not be convicted. ... In any event, no sufficient reason appears why this time-honored requirement in malicious prosecution should be now discarded in favor of an action of negligence, as here, for careless performance of duty and failure to make due inquiry, without a showing of malice and want of probable cause.” 118 So.2d at 105.

The above error, as we have observed above, would under ordinary circumstances require a reversal for a new trial, but our examination of the evidence introduced at the trial convinces us that it is legally insufficient to support the judgments appealed from and that a new trial in this case is wholly unjustifiable.

The record here is devoid of competent evidence to establish the absence of probable cause or the presence of malice, two essentials to the recovery of damages for malicious prosecution. The verdicts of the jury can only be explained by the erroneous consideration of the question of negligence. The defendant’s motion for a directed verdict, timely made, and renewed after all the evidence was in should have been granted. The trial court was in error in failing to do so.

The question of whether the separate verdicts of the jury are violative of the rule that separate verdicts may not be returned against joint tort-feasors is preter-mití ed due to our conclusion that the judgments appealed from are erroneous.

Reversed and remanded with directions to vacate the judgments appealed and enter judgment for the defendants.

It is so ordered.

      . As we read the record the suit was tried on Count 1 of the Complaint (malicious prosecution). There was an apparent abandonment of the other counts. In any event, the proof offered was not germane to any other count.

      . Wilson v. O’Neal, 118 So.2d 101 (Fla.App. 1st 1960). Appeal dismissed 123 So.2d 677 (Fla.). Cert. denied 365 U.S. 850, 81 S.Ct. 813, 5 L.Ed.2d 814.

      . Kellenberger v. Widener, 159 So.2d 267 (Fla.App.2d 1963).

      . Dunnavant v. State, 46 So.2d 871 (Fla.1950); Goldstein v. Sabella, 88 So.2d 910 (Fla.1956); Thompson v. Taylor, 183 So.2d 16 (Fla.App.1st 1966); Clements v. Eastern Airlines, Inc., 183 So.2d 264 (Fla.App.3d 1966); Community National Bank of Bal Harbour v. Burt, 183 So.2d 731 (Fla.App.3d 1966); Liabos v. Harman, 215 So.2d 487 (Fla.App.2d 1968); American Salvage and Jobbing Company, Inc. v. Salomon, 295 So.2d 710 (Fla.App.3d 1974).

      . Kellenberger v. Widener, supra note 3.


author: PEARSON, Judge.

text:
    Elaine SIEGEL, Appellant, v. Leonard ZIMMERMAN, Appellee.
    No. 75-310.
    District Court of Appeal of Florida, Third District.
    Sept. 2, 1975.
    Rehearing Denied Oct. 15, 1975.

      Paul A. Louis and Neil A. Shanzer, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and J. Frost Walker, III, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

The order appealed denies a former wife’s petition for increased child support. There is no question but that “the circumstances or the financial ability” of the parties has changed since the execution of the agreement and this the trial judge so found. The question presented here is whether the evidence viewed in the light most favorable to the trial court’s decision demonstrates an abuse of discretion by the judge upon his order denying an increase in child support. See Pross v. Pross, Fla.1954, 72 So.2d 671; Rogoff v. Rogoff, Fla.App.1959, 115 So.2d 456.

In deciding this question upon this record, it is incumbent upon us to take into consideration Fla.Stat. § 61.13, which places “. . . upon the divorced wife an equal duty of contributing to the support of the parties’ minor children” (Birge v. Simpson, Fla.App.1973, 280 So.2d 482). We hold that the record does show an abuse of discretion and, accordingly, we reverse the order denying relief and remand with directions.

The appellant is Elaine Siegel. She is the mother of the two children for whom support was sought. She is now remarried, and her present husband is well able to support her. The appellee is Leonard Zimmerman. He is the father of the children and is a medical doctor who earns a substantial income. He is now also remarried.

The parties were married in 1965. There were two children born of the marriage, Randy who is five years old and Buffy who is six. The mother is a college graduate. She taught school during the first three years of the marriage, which was dissolved in 1972 by a judgment which approved an agreement made earlier that year. The father’s gross reported income during 1971 was $12,498.00. The agreement provided that the father should pay $200 per month for the support of the two children. Alimony and house payments were also provided. The agreement further provided that in the event that the mother remarried, the amount of the child support payment would be increased to $300 per month. The father testified that the agreement was executed in contemplation that he would be going into private practice as a medical doctor and that his income would increase. The doctor’s gross income was approximately $30,000.00 in 1972, the year of the divorce. Although there are grounds for a belief that the estimate is low, the father projects his 1975 gross income at about $59,000.00, which is slightly lower than the $60,000.00 admitted for 1974.

The mother claimed increased needs for the children because of the increased cost of living in general and in particular because the children have grown older and their expenses have, therefore, increased. She testified that attendance in a private Hebrew school is necessary for the proper development of the children. While there is nothing in this record to require the Court to adopt this view, it is clear that such view is not unreasonable in light of the financial position and life styles of both parents.

The record clearly shows a change in circumstances both as to the financial ability of the father and the increased needs of the children. Thus, the reasoning applied in Stanley v. Stanley, 1947, 158 Fla. 402, 28 So.2d 694, and used by this Court in Banks v. Graham, Fla.App.1971, 252 So.2d 864, is met. This conclusion does not, standing alone, constitute a basis for reversal because it is firmly established that in ruling upon a motion to increase child support, the trial judge will not be reversed unless the appellate court reaches the conclusion that the ruling amounts to an abuse of discretion. See Cherney v. Cherney, Fla.App.1962, 146 So.2d 914. We hold that the denial of the motion to increase child support amounted to an abuse of discretion in this case because it appears from the record that the court applied an inappropriate rule of law. It is apparent that the judge concluded that he ought not grant the increase because the agreement of the parties at the time of the dissolution contemplated that the father would make more money in a few years.

The agreement of the parties as to an appropriate amount tó be paid for child support at a future time is a factor to be considered upon an application to modify the amount of child support because it shows an estimate of the parties concerned. However, it is in no instance a bar to a modification otherwise appropriate under the statutory admonition “to make [such] orders as equity requires.” See Fla.Stat. § 61.14. The greatest consideration must always be given to the needs of the children and the ability of the parents to supply those needs.

In considering the amount of the increase called for by the needs of the children and the ability of the parents, we are mindful that the statute places a duty upon each parent to contribute to the support of the children. See Fla.Stat. § 61.13. But it does not follow that the contribution of each parent must be in the exact amount of cash or its equivalent. Here again the needs of the children and the ability of the parent to supply those needs are to be considered.

In the present instance, the mother is able to use her talents and abilities to be a homemaker because she and her husband have agreed to this division of the family endeavors. The housekeeping by the mother is a part of the support of the children. It cannot be denied that if she were unwilling or unable to expend the effort to provide a home, as distinguished from housing and food, it would cost money to attempt to provide an acceptable substitute for this care.

We specifically reject the contention of the appellant that because the children are two of five persons enjoying the benefits of the house provided by the mother and her present husband that, therefore, the father should be charged with 40% of the costs of maintaining the home. These matters are not susceptible to a reduction to a mathematical formula.

We reach the conclusion that the needs of the children and the ability of the father call for an increase in the child support provided by the agreement of the parties. In order to prevent further protracted litigation and in the best interest of the parties, we have determined from this record that the amount of the child support to be paid by the appellee father should be increased from $300.00 for the two children to $500.00 per month. We direct that the trial court enter an order increasing the amount of child support to that amount and that the increase be made retroactive to the due date of the first payment due after the filing of the petition for modification.

Reversed and remanded with directions.

      . Fla.Stat. § 61.14.

      . “THE COURT: I think that is a change. I do not think there is any argument with that. * * * Give me what law you think will be helpful and I will touch bases with you on Thursday.”


author: RAWLS, Judge.

text:
    The JACKSONVILLE ELECTRIC AUTHORITY, a body politic and corporate, and the City of Jacksonville, a Municipal Corporation, Appellants, v. Fredrick L. RICE and Marian N. Rice, his wife, Individually and as taxpayers; and that class of persons similarly situated, Appellees.
    No. X-301.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1975.
    Rehearing Denied Oct. 22, 1975.

      Harry L. Shorstein, and Thomas E. Crowder, Jacksonville, for appellants.
    Richard W. Kreidler, Rice & Kreidler, Jacksonville, for appellees.
   RAWLS, Judge.

The sole question posed by this appeal is as follows: Is a fuel adjustment charge which was imposed prior to October 1, 1973, subject to municipal, tax pursuant to Florida Statute 166.231 (1) (b) (1974)? The trial judge granted a partial summary judgment holding that the City of Jacksonville could not place a municipal tax on any of its fuel adjustment charge, including that portion of the fuel adjustment charge which was levied by the City prior to October 1, 1973. Based on the clear language of Florida Statute 166.231(1) (b) (1974), we reverse.

The facts are not in dispute. In 1973, the Florida legislature authorized municipalities to collect from its customers a tax not to exceed 10 percent to be imposed on the purchase of electrical and certain other municipal services. Pursuant to this legislative authority, the City of Jacksonville imposed a 10 percent tax on the purchase of electrical services made by customers within the corporate city limits of the City of Jacksonville. On May 31, 1974, the Florida legislature enacted Chapter 109 of the Laws of Florida, 1974, which amended Florida Statute 166.231. The applicable portions of this act are as follows:

“Section 1. Subsection 166.231(1), Florida Statutes, 1973, is amended to read:
“166.231 Municipalities; public service tax.—
“(1) A municipality may levy a tax on the purchase of electricity, metered or bottled gas (natural liquefied petroleum gas or manufactured), water service, telephone service, telegraph service, and cable television service. The tax shall be levied only upon purchases within the municipality and shall not exceed ten (10) percent of the payments received by the seller of the taxable item from the purchaser for the purchase of such service.
“Section 2. The tax imposed by subsection 166.231(1), Florida Statutes, shall not be applied against any fuel adjustment charge, and such charge shall be separately stated on each bill. ‘Fuel adjustment charge’ shall mean all increases in the cost of utility services to the ultimate consumer resulting from an increase in the cost of fuel to the utility-subsequent to October 1, 1973.
“Section 3. This act shall take effect July 1, 1974 and the exemption granted herein for the fuel adjustment charge shall apply only to utility bills rendered after that date.”

Effective July 1, 1974, pursuant to the dictates of the legislature, the City of Jacksonville ceased imposing upon its customers the 10 percent tax on that portion of their electrical bill which was attributable to any fuel adjustment charge which had been imposed by the City after October 1, 1973. Appellees filed suit contending that Chapter 74-109, Laws of Florida prohibited the City from imposing a tax on any portion of their electrical bill which was attributable to the fuel adjustment charge. The trial judge agreed with ap-pellees, and this appeal ensued.

Chapter 109 of the Laws of Florida as enacted by the 1974 Legislature is without ambiguity, and clearly expresses the legislative intent that only that portion of the fuel adjustment charge which was imposed after October 1, 1973, is exempt from a municipal tax. Section 2 of Chapter 74— 109, Laws of Florida, explicitly states that a tax shall not be imposed on a fuel adjustment charge. The next sentence then defines a fuel adjustment charge as “all increases in the cost of utility services to the ultimate consumer resulting from an increase in the cost of fuel to the utility subsequent to October 1, 1973.” (Emphasis supplied.) The language of this statute is so clear that the Court cannot indulge in any statutory interpretation. The only proper function of this Court is to effectuate the clear legislative intent.

The judgment appealed is reversed.

BOYER, C. J„ and McCORD, J., concur.

      . Florida Statute 166.231(1) (1973) states: “(l)(a) A municipality may levy a tax on the purchase of electricity, metered or bottled gas (natural liquefied petroleum gas or manufactured), water service, telephone service, telegraph service, and cable television service. The tax shall be only upon purehases within the municipality and shall not exceed 10 percent of the payments received by the seller of the taxable item from the purchaser for the purchase of such service.”

      . Jacksonville Municipal Code § 806.101.

      . Florida Statute 166.231(1) (b) (1974).

      . Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918); and Wagner v. Botts, 88 So.2d 611 (Fla.1956).


text:
    In re Estate of William MELCHER, Deceased.
    Nos. 74-539, 74-680.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1975.
    Rehearing Denied Oct. 21, 1975.
    Kirby Sullivan, Orlando and William D. Rowland, Winter Park, for appellant-Clark W. Jennings, Executor of and Attorney for the Estate of William Melcher, deceased.
    John H. Ward of Ward, Ward & For-met, Orlando, for appellee-Ida M. Carson, a Residual Beneficiary under the Will of William Melcher, deceased.
   PER CURIAM.

Appellant, the executor and attorney for the estate of William Melcher, deceased, seeks review of the amount awarded as fees for extraordinary services.

While the amounts awarded appellant for extraordinary legal services and extraordinary services as executor were less than we might have awarded sitting as the trial court, the record does not demonstrate that the amount awarded was an abuse of discretion. The court properly denied expert witness fees on the authority of Robert & Company Associates v. Zabawczuk, 200 So.2d 802 (Fla.1967); Plever v. Bray, 266 So.2d 54 (3rd DCA Fla.1972), and Allstate Insurance Company v. Chastain, 251 So.2d 354 (3rd DCA Fla.1971), cert. disch., 263 So.2d 578 (Fla.1972).

Affirmed.

CROSS, OWEN and DOWNEY, JJ., concur.


text:
    JOHN E. PAGE AND ASSOCIATES, INC., a Florida Corporation, Appellant, v. George CARNEGIE, Appellee.
    No. 74-1377.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1975.
    Rehearing Denied Oct. 15, 1975.
    Leonard Frishman and Barry Clyman, Coral Gables, for appellant.
    Blitstein & Molans, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed, See Gaymon v. Quinn Menhaden Fisheries of Texas, Inc., Fla.App.1959, 108 So.2d 641; Pokress v. Josephart, Fla.App.1963, 152 So.2d 756.


text:
    GLOBE SHOES OF FLORIDA, INC., Appellant, v. Mary ROUMELIS, Appellee.
    No. 74-1568.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1975.
    Rehearing Denied Oct. 15, 1975.
    Kates, Ress, Gomez & Rosenberg, North Miami, for appellant.
    Podhurst, Orseck & Parks, Freddy, Had-dad, Kutner & Hardy, Miami, for appellee.

      Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellant seeks reversal of a final judgment, entered pursuant to a jury verdict for the plaintiff-appellee in the sum of $55,000 as a result of personal injuries sustained by appellee when she was struck by a falling ladder while shopping in appellant’s store.

We have carefully considered the points on appeal in the light of the record, briefs and arguments of counsel and we find no reversible error has been demonstrated.

The trial court was correct in denying appellant's motions for directed verdict and submitting the issues to the jury. The record discloses that the jury’s verdict is supported by the evidence and that the several rulings of the trial court challenged by appellant, did not on the record and under the law, constitute reversible error.

Affirmed.


author: OWEN, Judge.

text:
    SORENSEN/FLETCHER CONSTRUCTION COMPANY, Appellant, v. Phillip GRASSO and Barbara Grasso, Appellees.
    No. 74-540.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Rehearing Denied Oct. 21, 1975.
    Irby G. Pugh of Fernandez & Scarito, Orlando, for appellant.
    H. Russell Troutman and Gary W. Udouj of Law Offices Troutman & Parrish, P. A., Winter Park, for appellees.
   OWEN, Judge.

Appellant suffered final summary judgment in its suit for damages for breach of contract and unjust enrichment, the trial court finding that a prior action between the same parties was res judicata. We reverse.

In a prior action between the same parties, appellant had sought to foreclose its claim for a mechanic’s lien on appellees’ property. Upon trial of the foreclosure suit, the plaintiff’s evidence established that it had failed to furnish to defendant-owners the contractor’s affidavit required under Fla.Stat. § 713.06(3) (d) (1) (1971), as a consequence of which the court dismissed the complaint with prejudice. The plaintiff’s motion for rehearing and motion for leave to amend the pleadings to state a cause of action at law were unavailing.

Thereafter, plaintifff filed the instant case seeking damages on the theories of breach of contract and unjust enrichment, but based upon the same alleged improvements to defendants’ property that had been the basis of the unsuccessful suit to foreclose a mechanic’s lien. Upon proof of this fact the court held that the defendants’ affirmative defense of res judicata was shown as a matter of law and entered summary judgment in their favor.

The order of dismissal in the mechanic’s lien foreclosure suit was not a determination on the merits of the plaintiff’s monetary claims against the defendants, although it did determine with finality that the plaintiff was not entitled to a lien against the defendants’ property. Oper v. Russell, Inc., 197 So.2d 13 (3rd DCA Fla.1967); Halifax Construction Company v. Chastain Groves, Inc., 192 So.2d 15 (1st DCA Fla.1966); Stilley v. Post, 148 So.2d 569 (1st DCA Fla.1963). Consequently, the lien foreclosure suit, having been dismissed without a determination on the merits of the monetary claims asserted in the instant suit, would not support appellees’ affirmative defense of res judicata. Accord, Kent v. Sutker, 40 So.2d 145 (Fla.1949).

The summary judgment is reversed and this cause remanded for further proceedings.

Reversed and remanded.

WALDEN, C. J., and YAWN, THERON, Associate Judge, concur.


text:
    Henry V. CLIFTON and Dorcas Clifton, his wife, Appellants, v. CITY OF FT. PIERCE, Florida, a Municipal Corporation, and Aetna Life and Casualty Insurance Company, Appellees.
    No. 74-609.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Rehearing Denied Oct. 21, 1975.
    Richard W. Groner, Moyle, Gentry, Jones & Flanigan, West Palm Beach, for appellants.
    Edna L. Caruso, Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellees.
   DOWNEY, Judge.

This is an appeal from a summary judgment for the appellees City of Ft. Pierce and its insurance carrier, Aetna Life and Casualty Company, in an action for negligence arising out of the maintenance and operation of an automatic traffic signal in the City of Ft. Pierce.

The complaint alleged that appellants were involved in an automobile accident at an intersection in said city; that appellants entered the intersection on a green light and collided with another motorist who entered the intersection from an intersecting street; that said other motorist either had no lights showing on the traffic signal or he too had a green light; that the malfunctioning of said traffic control device was a result of the negligence of the ap-pellees and as a result thereof appellants were severely injured. The complaint also charged that the city was under a statutory duty to furnish, operate, and maintain said traffic device. The trial court granted ap-pellees’ motion and entered final summary judgment for appellees.

There is adequate precedential authority for the action taken by the trial judge. City of Tampa v. Davis, Fla.App.1969, 226 So.2d 450, relying on Modlin v. City of Miami Beach, Fla.1967, 201 So.2d 70, held that a city would be liable for an injury allegedly arising from negligent performance of the governmental function of traffic control only if there was some direct transaction between some city officer and the plaintiff. See too Mathews v. City of Tampa, Fla.App.1969, 227 So.2d 211. In the present case appellants’ com plaint did not allege that there was any such direct transaction. Hence the summary final judgment for appellees was proper.

Appellants rely heavily upon Shealor v. Ruud, Fla.App.1969, 221 So.2d 765. We would distinguish that decision as holding that the city undertook to perform a duty which could have (or perhaps should have) been performed by the railroad company and thus in that situation the city was acting in its proprietary capacity. Thus, liability for negligence could and did attach.

Accordingly, since in the present case no liability could arise for the exercise of this governmental function in the factual situation alleged in the complaint, there was no genuine issue of fact, and summary judgment was appropriate.

Affirmed.

CROSS and MAGER, JJ., concur.


text:
    James C. SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1247.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
    Rehearing Denied Oct. 21, 1975.
    Nelson E. Bailey, Bailey & Brown, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Williams v. State, Fla.1975, 316 So.2d 267.

WALDEN, C. J., and MAGER and DOWNEY, JJ., concur.


text:
    Curtis SPEIGHT, Appellant, v. Vernita SPEIGHT, Appellee.
    Nos. 74-1755, 75-57, 75-58.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1975.
    Rehearing Denied Oct. 15, 1975.
    Hilton R. Carr, Jr., and James F. Dougherty, II, Miami, for appellant.
    Aronovitz, Silver & Booth and Tod Aronovitz, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

These combined appeals are from the final judgment of a dissolution of a marriage and from interlocutory appeals arising out of two interlocutory orders. They are consolidated for all appellate purposes.

The former husband, Curtis Speight, in his appeal from the final judgment, urges that the trial court erred in requiring him to pay to his wife $6,350 representing her share of two joint savings accounts. The division of jointly-owned personal property, when prayed for in the complaint, is a proper matter to be adjudicated within a dissolution of marriage proceeding. See Banfi v. Banfi, Fla.App.1960, 123 So.2d 52. The only substantial question presented is whether or not the evidence is sufficient to support the finding of the trial court that the husband did not have the right to the entire proceeds of the two accounts. Our review of the record convinces us that a showing of the commingling of the earnings of the parties in many of the areas of the marriage is sufficient in this case to support the finding of the trial judge. Cf. Hendricks v. Hendricks, Fla.App.1975, 312 So.2d 792.

Appellant’s interlocutory appeals challenge the wife’s right to an attorney’s fee and the amount thereof and the order assessing costs against the husband. It is apparent that these matters are ordinarily within the discretion of the trial judge. We find that no abuse of discretion has been ■ shown in view of the relative financial abilities of the parties and the fact that the wife has custody of the child of the marriage. See Ginsberg v. Ginsberg, Fla.App.1961, 127 So.2d 137.

Affirmed.


author: HAVERFIELD, Judge.

text:
    Marylin S. BARON, Appellant, v. Salvatore AIELLO, Appellee.
    No. 75-293.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1975.
    Rehearing Denied Oct. 15, 1975.
    Marks, Keith, Mack & Lewis, Miami, for appellant.
    Joseph Paglino, Miami, Nat Gursten, North Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

By way of interlocutory appeal, appellant seeks review of an order finding that the intervenor, appellee herein, has a valid lien in the amount of $3,000 against the subject realty in this foreclosure action.

Cy Georges and his wife, owners of certain real property, on March 22, 1972, executed a mortgage thereon which, was recorded on March 26. Subsequently, this mortgage was transferred to B. D. Bolen who on March 22, 1973, filed a complaint against Cy Georges and'his wife to foreclose the mortgage for failure to make the payment due in December and all subsequent payments. A notice of lis pendens simultaneously was filed with the complaint. Prior thereto, on March 13, 1973 Salvatore Aiello, intervenor in the trial. court and appellee herein, obtained a $3,000 judgment in Broward County against Cy Georges and had said judgment recorded on March 16, 1973 in Dade County.

On June 30, 1973 the trial judge, upon proper motion of plaintiff, entered a final summary judgment in mortgage foreclosure in favor of B. D. Bolen, and ordered a sale of the subject real property at public auction on July 27, 1973.

On July 3, 1973 Salvatore Aiello filed a motion to intervene, set aside judgment and for other relief. He alleged therein that he was the owner and in possession of the subject realty foreclosed against by virtue of a sheriff’s deed dated June 20, 1973 and recorded in the public records of Dade County as a result of his having levied on the premises on May 8, 1973 and having duly executed thereon pursuant to the judgment recorded on March 16, 1973. Attached thereto was a copy of the June 20, 1973 sheriff’s deed. The motion came on for hearing, and the trial judge ordered that (1) Aiello be named a party defendant, and (2) the foreclosure sale set for July 27, 1973 be rescheduled for September 7, 1973. On that date a public sale of the subject property was held at which Mary-lin Baron purchased same. No objections having been filed, on September 18, 1973 the clerk of the circuit court issued a certificate of title thereto to Marylin Baron.

Upon the intervenor’s refusal to deliver possession of the premises to Ms. Baron after demand was made, Ms. Baron filed an affidavit for writ of assistance and Aiello, appellee, responded with an affidavit in opposition thereto.

After a hearing thereon, the trial judge denied the motion for writ of assistance and set the cause for further hearing to resolve the claims of title of the respective parties and factual questions. Another hearing on these issues was conducted and on July 2, 1974 an order was entered adjudging (1) appellant, Marylin Baron, to be the fee simple holder of the subject realty and entitled to possession thereof; (2) any interest of Aiello in the property to have been eliminated by the foreclosure sale; and (3) Aiello’s judgment dated March 13, 1973 not to be a valid judgment against the subject property. Thereupon, the writ of assistance was granted to Ms. Baron. On July 10, 1974 Aiello moved for a new trial, rehearing or to alter or amend judgment and alleged, inter alia, that in the event good title to the premises was obtained by Ms. Baron, he should still have a claim or lien in the amount of $3,000 on said property. After hearing, the trial judge on January 24, 1975 entered an amended order adjudging Aiello to have a valid $3,000 lien (plus legal interest since March 16, 1973, the effective date thereof) against the subject real property such judgment being superior in dignity to the title of Marylin Baron or any persons claiming title through her. Ms. Baron appeals from this amended order. We reverse.

A judgment lien, as in the case at bar, is a general lien which attaches to any property owned or subsequently acquired by the judgment debtor; nevertheless, generally speaking, purchase money mortgages take priority over and are senior to any other prior or subsequent claims or liens attaching to the property through the mortgagor and upon foreclosure of the mortgage on the property to which a judgment lien is attached, the lien as to that property is extinguished. County of Pinellas v. Clearwater Federal Savings and Loan Association, Fla.App.1968, 214 So.2d 525; Roy v. Matheson, Fla.App.1972, 263 So.2d 604.

In the case before us, the mortgage which was foreclosed was recorded in March 1972, one year prior to the judgment obtained by the appellee-intervenor, and thus this recorded purchase money mortgage took priority over and was senior to appellee’s subsequent judgment lien attaching to the subject realty. Appellee’s attempt to execute on his judgment in May 1973 was too late as the foreclosure action at that time had been commenced and a notice of .lis pendens filed. We also note that appellee Aiello properly was joined as a party defendant upon his motion for intervention. See County of Pinellas, supra.

Reviewing these facts in light of the controlling principle of law cited here-inabove, leads us to the conclusion that upon the title to the subject real property being issued by the clerk of the circuit court to appellant, Ms. Baron, the purchaser at the public sale held pursuant to the judgment in mortgage foreclosure, Aiello’s subsequent judgment lien as to that property was extinguished.

Therefore, the trial judge was in error in entering the amended order adjudging Aiello to have a valid lien in the amount of $3,000 plus interest against the subject realty and further holding his judgment to be superior in dignity to the title of appellant, Ms. Baron.

Before concluding, we wish to point out that although Aiello’s lien is nullified as an encumbrance on the foreclosed property as to the debtor Cy Georges, the lien is dormant only and is ready to be revived at the moment of acquisition of property to which it can attach. See County of Pinellas, supra.

Accordingly, the amended order of January 24, 1975 is reversed and the cause remanded to the trial court with directions to reinstate its order of July 2, 1974 in its entirety.

It is so ordered.


text:
    Brenda Seiple MUMMAW, Appellant, v. Richard Alan MUMMAW, Appellee.
    No. X-227.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    John Henry TICE, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1122, 74-1134.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.
    Rehearing Denied Oct. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    William Duane ELLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 75-670.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1975.
   Cause transferred to Supreme Court.


text:
    Tanya VAN ZANDT NEFF, Appellant, v. VAN ZANDT, INC., etc., et al., Appellees.
    No. 75-1612.
    District Court of Appeal of Florida, Fourth District.
    Sept. 16, 1975.
   Appeal from Circuit Court, Palm Beach County; Lewis Kapner, Judge.

Appeal dismissed.


text:
    Stephen Raines TAYLOR, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    No. 75-1344.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   Habeas corpus denied.


text:
    Jimmie WILLIAMS, Petitioner, v. The DIRECTOR OF DIVISION OF CORRECTIONS for the State of Florida, Respondent.
    No. 75-1308.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
   Habeas corpus denied.


text:
    Michael CODELLA et al., Appellants, v. Robert E. HOLLOWAY, not individually, but as Nominee of the Trustees of NJB Prime Investors, Appellee.
    No. 75-1454.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 1975.
   Appeal from Circuit Court, Orange County; Thomas E. Kirkland, Judge.

Appeal dismissed.


text:
    Stuart Hartlyn FULLER, Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Appellee.
    No. 75-1567.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 1975.
   Habeas corpus denied.


text:
    Douglas McCLURE, Appellant, v. Edward STACK, Sheriff of Broward County, Florida, Appellee.
    No. 75-1575.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 1975.
   Habeas corpus denied.


text:
    James A. RISEBROUGH, Appellant, v. STATE of Florida, Appellee.
    No. 75-1569.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 1975.
   Habeas corpus denied.


text:
    Joseph Daniel ROLLAND, Appellant, v. William HEIDTMAN, Sheriff, Palm Beach County, Appellee.
    No. 75-1472.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 1975.
   Appeal from Circuit Court, Palm Beach County; Dawson A. McQuaig, Judge.

Appeal dismissed.


text:
    STATE of Florida ex rel. Leo J. GOLUB, Petitioner, v. Honorable Frank SCHAUB, as Circuit Judge of the Twelfth Judicial Circuit of Florida, Respondent.
    No. 75-1359.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 1975.
   Prohibition denied.


text:
    A-B PROPERTIES, a Florida general partnership, et al., Appellants, v. Gene H. GODBOLD, as Trustee, Appellee.
    No. 75-1021.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   Appeal from Circuit Court, Orange County; Claude R. Edwards, Judge.

Appeal dismissed.


text:
    Johnny BLANCO, Appellant, v. STATE of Florida, Appellee.
    No. 75-169.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
    Rehearing Denied Oct. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert CHAMBERS, Petitioner, v. Honorable Roy E. DEAN, Circuit Judge for the Twelfth Judicial Circuit in and for Sarasota County, Florida, Respondent.
    No. 75-1367.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
   Mandamus denied.


text:
    Dania FILL et al., Appellants, v. BERGERON LAND DEVELOPMENT, INC., a Florida Corporation, Appellee.
    No. 74-1736.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   Appeal from Circuit Court, Broward County; Stewart LaMotte, Judge.

Appeal dismissed.


text:
    Henry GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 75-160.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
    Rehearing Denied Oct. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Elaine F. HEMPLING, wife, Appellant, v. Norman J. HEMPLING, husband, Appellee (two cases).
    Nos. 75-1547, 75-1548.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   Appeals from Circuit Court, Broward County; Otis Farrington, Judge.

Affirmed.


text:
    HYNAUTIC, INC. and North River Insurance Company, Appellants, v. George MIHALAKIS et al., Appellees.
    No. 75-1394.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   Appeal from Circuit Court, Broward County; Raymond J. Hare, Judge.

Appeal dismissed.


text:
    Rudolph LOVE, Appellant, v. STATE of Florida, Appellee.
    No. 74-84.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   Appeal from Circuit Court, Brevard County; A. J. Hoseman, Judge.

Appeal dismissed.


text:
    James L. MILLER et ux., et al., Appellants, v. Robert CURRY et al., Appellees.
    No. 75-156.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
    Rehearing Denied Oct. 14, 1975.
   PER CURIAM.

Affirmed.


text:
    Jane C. NICHOLSON, Appellant, v. Anthony J. NICHOLSON, Appellee.
    No. 74-1771.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   Appeal from Circuit Court, Orange County; Frederick Pfeiffer, Judge.

Appeal dismissed.


text:
    Aaron RAPHAEL, Chairman of the ad hoc Committee for Recall Intervenors Defendants, Appellant, v. Jacob SPEIGEL et al., Appellees.
    No. 75-1455.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   Appeal from Circuit Court, Broward County; Arthur J. Franza, Judge.

Appeal dismissed.


text:
    James M. SIMMERSON, Appellant, v. David W. CUNNINGHAM et al., Appellees.
    No. 75-1063.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   Appeal from Circuit Court, Orange County; Frederick Pfeiffer, Judge.

Appeal dismissed.


text:
    STATE of Florida, Appellant, v. Donald GARRETT and Michael Garrett, Appellees.
    No. 75-221.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
   Appeal from Circuit Court, Martin County; B. Muszynski, Judge.

Appeal dismissed.


text:
    STATE of Florida ex rel. Steven Jack SMITH, Relator, v. Harry Lee COE, III, as Judge of the Circuit Court, Thirteenth Judicial Circuit of Florida, in and for Hillsborough County, Criminal Justice Division, Respondent.
    No. 75-1370.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1975.
   Prohibition denied.


text:
    Edward L. BROWER, Relator, v. The Honorable John G. FERRIS, as Judge of the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Respondent.
    No. 75-1589.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1975.
   Prohibition denied.


text:
    Robert L. HUTCHINSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-429.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1975.
   Appeal dismissed.


text:
    John INGRAHAM, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 75-1378.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1975.
   Habeas corpus denied.


text:
    Ronald Glenn AMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 74-425.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    George E. BAKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-571.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Calvin “Junior” COBB, Appellant, v. STATE of Florida, Appellee.
    No. 74-374.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    John C. CRASTEN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1369.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Karleen DeBLAKER et al., Appellants, v. Robert M. COUF and Mary A. Brown, Appellees.
    No. 74-1271.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Michael Douglas FLOURNOY, Appellant, v. STATE of Florida, Appellee.
    No. 74-1197.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Ralph GILLESPIE, Jr., and Wesley E. Watson, Appellants, v. STATE of Florida, Appellee.
    No. 75-505.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Jack IVORY, Appellant, v. STATE of Florida, Appellee.
    No. 74-932.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    James R. NICHOLS, Appellant, v. STATE of Florida, Appellee.
    No. 74-904.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    William Junior NORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 75-334.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Scott PLONSKI, Appellant, v. STATE of Florida, Appellee.
    No. 74-1074.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida ex rel. BISCAYNE CONSTRUCTION, INC., a Florida Corporation, Relator, v. The Honorable Francis X. KNUCK, Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 74-1487.
    District Court of Appeal of Florida, Third District.
    Sept. 26, 1975.
   PER CURIAM.

Prohibition denied.


text:
    W. C. GRIER et ux., Appellants, v. SECURITY MORTGAGE INVESTORS, INC., a Massachusetts Business Trust, Appellee.
    No. 75-777.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1975.
   Appeal dismissed.


text:
    LEE COUNTY, a political subdivision of the State of Florida, Appellant, v. FLORIDA PUBLIC SERVICE COMMISSION et al., Appellees.
    No. 75-1106.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1975.
   Appeal dismissed.


text:
    LIBERTY MUTUAL INSURANCE COMPANY et al., Appellants, v. Noah ALLDREDGE et al., Appellees.
    No. 75-4.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1975.
   Appeal dismissed.


text:
    Robert William LLOYD and American Liberty Insurance Company, Appellants, v. David C. DOMINION and Patricia Ann Dominion, Individually and as Administratrix of the Estate of Marcellina Ann Dominion, Deceased, Appellees.
    No. 75-945.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1975.
   Appeal dismissed.


text:
    Lyle POWELL, Appellant, v. GRANGE MUTUAL CASUALTY COMPANY, Appellee.
    No. 75-1125.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1975.
   Appeal dismissed.


text:
    Thomas F. SACCOMAN, Appellant, v. Gene MASSA, Appellee.
    No. 75-1139.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1975.
   Appeal dismissed.


text:
    David M. FREEZE, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1540, 74-1541 and 74-1542.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    Donald Clarence HANNUM, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-576.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    Joyce ESSER, Appellant, v. Gregor J. ESSER, Appellee.
    No. 75-645.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1975.
   Appeal dismissed.


author: PATTERSON, Justice.

text:
    Dr. John B. DICKS, Owner of Glenburney, Appellant, v. CITY OF NATCHEZ, Mississippi, et al., Appellees.
    No. 48216.
    Supreme Court of Mississippi.
    Sept. 15, 1975.
    Rehearing Denied Oct. 20, 1975.
    Brandon, Handy & O’Beirne, Natchez, for appellant.
    Zuccaro, Riley, Pintard & Brown, Gwin & Gwin, John T. Green, Natchez, for ap-pellees.
    Before PATTERSON, INZER and SUGG, JJ.
   PATTERSON, Justice.

This appeal is from a judgment of the Circuit Court of Adams County affirming an ordinance of the City of Natchez dated September 13, 1972, which rezoned a tract of land from B-2 (commercial) to O-L (open land). The tract had been rezoned on May 1, 1972, with other land from O-L (open land) to B-2 (commercial) by an ordinance of the city. The issues before the Court are whether the last rezoning ordinance was legally effective to correct an alleged mistake of the prior rezoning ordinance and if so, what effect this rezoning would have upon an option of purchase for a use consistent with the B-2 classification.

On September 7, 1971, Dr. Dicks, the appellant, filed an application with the City of Natchez to rezone sixteen acres of open land to B-2 (commercial) for the construction of a 120-bed hospital and necessary hospital-type facilities. The land was described as “part of City Tax Map 69, Block 1, Lot 1 (see map attached).” We discern the area sought to be rezoned is a portion of a larger tract known as Glen-burn ey and is situated on the east side of John R. Junkin Drive. Pursuant to the application the Natchez Metropolitan Planning Commission, hereinafter commission, considered the area for rezoning. Its minutes of January 20, 1972, reflect the following :

Glenburney, east side of John R. Junkin Drive. Proposed hospital site, 16.5 acres located on the west portion of Glenbur-ney property located on the east side of the John R. Junkin Drive, as depicted by a proposed Site Development Plan for Glenburney, Natchez, Mississippi, by Virden and Roberson, Ltd., architects, Greenville, Mississippi, which plan is on file in the office of the Natchez Metropolitan Planning Commission of Adams County, City Hall, Natchez, Mississippi.
‡ * * * Hfi *
Using the site plan submitted by the applicant, Mr. Winter described the different parcels and noted the park area and buffer park strip provided between the housing development and a nursing home and the Glenwood Subdivision. He noted that the John R. Junkin Drive frontage of the proposed hospital site, for a depth of approximately 300 feet, was excluded from the land to be considered for rezoning so that it would not be used for commercial purposes and would remain O-L. .

At this meeting Dr. Dicks’ attorney stated for the record that the original developers of the proposed hospital were no longer connected with the project, but that the applicant for rezoning expected to pursue the objective of hospital construction on the basis of the site layout and other drawings.

At a subsequent meeting the commission again considered the application for reclassification and concluded with the following recommendation to the Mayor and Board of Aldermen of the City of Natchez:

The Commission considered first the application for the re-classification of a portion of the Glenburney property from O-L to B-2 to permit construction of a hospital. In the discussion, it was brought out by Mr. West that additional hospital beds are badly needed in Natchez. It was moved, seconded, and so ordered to recommend to the Mayor and Board of Aldermen the rezoning of the Glenburney property from O-L to B-2, the amendment to carry the following conditions:
1. That the hospital be developed substantially as proposed and indicated on the site plan submitted December 17, 1971, except as minor modifications may be approved by the Planning Commission.
2. (Not applicable.)
3. (Not applicable.)
4. That upon failure to develop the area, in general accord with the submitted site plan, within one year, no permit for the construction of any structures within the area shall be issued until the area has been examined and rezoned for its appropriate use.
5. (Not applicable.)

The mayor and board of aldermen, following the commission’s recommendation, gave notice to the public of a hearing to be held on March 13 to consider the reclassification. The property described in the notice follows:

Reclassify portions of the Glenburney property located on the east side of the John R. Junkin Drive, as depicted by a Proposed Site Development Plan for “Glenburney”, Natchez, Mississippi, by Virden and Roberson LTD., Architects, Greenville, Mississippi, which plan is on file in the Natchez Metropolitan Planning Commission of Adams County Office, City Hall, Natchez, Mississippi.
A. Hospital site, 16.5 acres located on the west portion of Glenburney and extending from John R. Junkin Drive to the rear lot line. Re-classify from O-L Open Land to B-2 Commercial; except that portion of the property within 300 feet of John R. Junkin Drive would remain O-L Open Land.

For clarity we note that the 300-foot exception to the 16.5-acre tract of Glenbur-ney sought to be rezoned for a hospital site abuts John R. Junkin Drive for a distance of 727.9 feet and, by our computation, approximates five acres.

At the March 13 meeting of the mayor and board of aldermen the issue of reclassification was presented and discussed. The appellant presented as a witness Mr. Virden, an architect, who stated that the requirements previously suggested by Arch Winter and the members of the planning commission had been met. The appellant’s attorney then requested, after noting the suggested changes had been made, that the board of aldermen approve the rezoning. The issue, however, was not resolved and the meeting was continued until March 27. The matter was discussed, objections heard, at this and several recessed meetings until it was ultimately moved on May 1 and unanimously carried that the hospital site, containing 16.5 acres, be rezoned from OL (open land) to B-2 (commercial).

The ordinance of the city zoning the property as open land was thereafter amended to reflect its new classification. The rezoned, property was described as:

Portions of the Glenburney property located on the east side of John R. Junkin Drive in the City of Natchez, Mississippi, as depicted on Map of Subdivision of Glenburney prepared by Jordan, Kaiser & Sessions, Civil Engineers, which plan is on file in the office of the Plannning Commission of the City of Natchez, Mississippi.
A. Hospital site, containing 16.8 acres, more or less, located on the north portion of Glenburney and extending from John R. Junkin Drive to the rear lot line. Re-classify from O-L Open Land to B-2 Commercial.

It will be noted that the 300-foot (5 acres) exception on the east side of John R. Jun-kin Drive was not included in the amended ordinance.

On July 6, 1972, more than two months after rezoning the hospital site to commercial and after time for appeal of the ordinance had expired, the appellant agreed to sell three acres of the property to Charles Laird of the Laird Funeral Home for $50,000. The three acres optioned for sale lies largely within the 300 feet immediately east of the John R. Junkin Drive. One thousand dollars to bind the contract was accepted by the appellant and a deed was executed and acknowledged on July 17 in furtherance of the option. The City “Chart of Uses Permitted” designates in excess of 140 uses that may be made of B-2 (commercial) property, one of which is a funeral home. However, the option to purchase was not exercised due to the rezoning to open land.

Prior to July 24, 1972, there came to the attention of the mayor and board of aider-men that a mistake had been made in rezoning to commercial a portion of the Glenburney property and a notice was given on this date for another public hearing concerning rezoning in view of the alleged mistake. The mistake asserted was the inclusion of the 300-foot buffer strip adjacent to John R. Junkin Drive with the remainder of the Glenburney property when it was zoned commercial.

Thereafter, additional meetings were held in which the matter was discussed and debated. The commission expressed its viewpoint that its previous recommendation to rezone commercial did not include the 300-foot buffer strip. The commission therefore recommended to the mayor and board of aldermen that the 300-foot strip now be reclassified to open land so that it would accord with the commission’s original intention.

This recommendation was given due consideration in an open hearing on September 13, 1972, by the city fathers and resulted in the buffer strip being reclassified as open land.

The first issue is whether there was a mistake in the ordinance of May 1, 1972, which was properly corrected by the ordinance of September 13, 1972. The basis for rezoning is: a mistake in the original zoning or a change in the neighborhood conditions. Paine v. Underwood, 203 So.2d 593 (Miss.1967), and City of Jackson v. Bridges, 243 Miss. 646, 139 So.2d 660 (1962).

The record before us reveals, we think, a mistake by the mayor and board of aider-men in rezoning the buffer strip from open to commercial land. The original meeting of the commission had before it the statement of Mr. Winter, a planning consultant, that the strip was excluded from the hospital site. While the commission’s recommendation to the city was inconsistent with the discussion, nevertheless, the legal notice by the city to the public prior to its rezoning hearing excluded the 300-foot buffer zone and again, the buffer zone was not mentioned in the city’s rezoning ordinance. These inconsistencies are of sufficient gravity, in our opinion, for the city to later determine that it had made a mistake. It was at least more than fairly debatable and we note that the appellant does not argue by way of contradiction the fact of mistake, but rather contends that the rezoning to commercial was an accomplished fact and he was entitled to rely upon the validity of the ordinance and to sell his property in accord with commercial zoning.

Unfortunately, the mistake did not come to the attention of the attorneys, the commission or the city until the appellant had contracted to sell approximately three acres of the buffer strip property for a funeral home and undoubtedly, a presumption extends to the validity of an ordinance upon which the property owner is entitled to rely. Martinson v. City of Jackson, 215 So.2d 414 (Miss.1968); Fowler v. City of Hattiesburg, 196 So.2d 358 (Miss.1967); and Lewis v. City of Jackson, 184 So.2d 384 (Miss.1966).

The primary question is whether there was sufficient evidence to overcome the presumption of the validity of the first rezoning ordinance. In Halloway v. Holloway, 189 Miss. 723, 198 So. 738 (1940), it was held that a presumption must give way to the facts established by the evidence. From a review of the record we conclude, as did the circuit judge, that there was ample evidence to support the city in rezoning the buffer strip property to open land in order to correct the mistake of its former ordinance and that this act was neither arbitrary, capricious nor confiscatory.

It is further argued, however, that the last ordinance does not refer specifically to a mistake as a basis for rezoning. This contention is not persuasive to invalidate the last ordinance since we held in Paine v. Underwood, 203 So.2d 593 (Miss.1967), that a recitation of a change of conditions was not necessary to the validity of the ordinance where there was evidence of a change of conditions. By analogy the present essential is whether there was evidence of a mistake revealed in the record. We have previously concluded there was ample evidence of such a mistake, leaving the appellant’s contention meritless.

The final issue is whether the appellant’s loss of sale was so inequitable that it prohibited the city from enacting the last rezoning ordinance. The offer to purchase for $50,000 was bona fide and it is of course to be regretted that the sale was lost by the actions of the city. However, in Westminster Presbyterian Church v. City of Jackson, 253 Miss. 495, 176 So.2d 267 (1965), the church sought rezoning from residential to commercial for use as a gasoline station site. It alleged several factors indicative of a change of conditions which would support rezoning, one of which was a diligent effort to sell the property without success. The evidence showed that the value of the property for a filling station site was $45,000 and there was an agreement to purchase at this figure if the church could obtain rezoning of the property. The proof further revealed that for residential purposes the property was worth only $11,000. The trial court found no change of circumstances to warrant rezoning and this Court affirmed, holding that the ordinance of the city was not confiscatory. We quoted with approval the general rule found in 62 C.J.S. Municipal Corporations § 227(15) c (1949) as follows:

“A variance to construct or operate a service station or garage should not be granted merely because such use of the property will be more convenient or profitable to the owner, or because he will suffer some financial disadvantage or hardship if denied such use; it is essential that applicant should suffer some unusual hardship from the literal enforcement of the regulation different from, and greater than, that suffered by other property owners in the district. The variance or exception should not be granted unless the proposed use of the property is within the spirit of the zoning regulations.” 253 Miss. at 506, 176 So.2d at 272.

We recognize this quotation relates to a variance to an existing ordinance, but nevertheless are of the opinion that it has present application since the case also holds:

“ . . . [T]he City Council had the right and the duty to review the whole situation and protect the residential property owners to the east of appellant’s property. As I understand the record, this whole block is residential property. The Courts should not constitute themselves as a Zoning Board for a municipality.” 253 Miss. at 506, 176 So.2d at 272.

See also Grayson v. City of Birmingham, 277 Ala. 522, 173 So.2d 67 (1963), wherein it was held that financial loss is not the ultimate test for reclassification, but rather the overall needs of the public, the requirements of the city and the rights of the individual are to be considered in rezoning.

We arc sympathetic to the appellant’s loss, but from the record before us we are constrained to the opinion that the city had the right, indeed the duty, to correct a mistake that it had formerly made, and particularly is this so when it is observed that the buffer strip was returned to a status in conformity with the zoning of adjacent lands not involved in this controversy.

Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    John C. JAMISON, Admr. of the Estate of Charles William Jamison v. ESTATE of Kermit Wade WHITE, Deceased.
    No. 48354.
    Supreme Court of Mississippi.
    Oct. 6, 1975.
    Levi, Wilson & Denham, P. A., Pasca-goula, for appellant.
    Watkins & Eager, William E. Suddath, Jr., Jackson, for appellee.
    Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.
   Appeal from Circuit Court, Quitman County; J. C. Feduccia, Judge.

Affirmed.