author: PER CURIAM. OTT, Judge,

text:
    Howard Kenneth FARNSWORTH and Mary D. Farnsworth, Appellants, v. ALLSTATE INSURANCE COMPANY et al., Appellees.
    No. 76-755.
    District Court of Appeal of Florida, Second District.
    March 9, 1977.
    Rehearing Denied March 31, 1977.

      Thomas M. Woodruff, St. Petersburg, for appellants.
    James B. Thompson and Mark Hungate of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for appellees.
   PER CURIAM.

Affirmed.

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

OTT, J., concurs specially with opinion.

OTT, Judge,

concurring specially.

I concur with the majority conclusion in this case, but must differ from the result or status of the litigation in the light of a prior opinion of this court on the subject. I would recede from that part of this court’s prior opinion in Tucker v. Walker, 335 So.2d 636 (Fla. 2d DCA 1976), which holds, in effect, that a final judgment properly entered upon a jury verdict is not final on all issues, absent a showing of abuse of discretion (such as clear uncontradicted evidence that necessary medical treatment is continuing or maximum medical recovery has not been reached or permanency of injury determined.)

In the ease under consideration the appellants brought a personal injury action against the appellees for injuries received in an automobile accident. Among the issues fairly made and fully tried by the parties were whether the plaintiffs crossed either the threshold of medical expenses in excess of $1,000 or permanent injury, as defined and required by Section 627.737(2), Florida Statutes (1975). Special verdicts were submitted to the jury which posed both threshold questions for a “yes” or “no” answer. The jury answered both questions in the negative and the court thereupon entered a final judgment against the appellees. The trial court denied appellants’ motions to set aside the judgment, for dismissal without prejudice or for a new trial. This appeal resulted.

This court affirms the final judgment and with this I fully concur. The result, however, in the light of Tucker v. Walker, supra, appears to permit or sanction the filing of another suit by the appellants and ultimate consideration by another jury — at least where they accrue a new $1,000 of medical expenses. In Tucker the question to the jury on the medical expense threshold, as in this case, only required the jury to answer “yes” or “no” and not to fix the actual amount of medical expenses they found reasonable and necessary, if any. In the Tucker opinion we affirmed the entry of the final judgment by the trial court, affirmed our understanding of and allegiance to the time honored doctrine of res judicata, but then concluded by saying:

“The judgment entered herein does not bar the plaintiffs from bringing a later action within the limitations period, should Tucker sustain medical expenses in excess of the $1,000 threshold requirement of Fla.Stat. § 627.737(2) subsequent to the trial of this cause.” 335 So.2d at 638.

With this I cannot agree.

This case and Tucker do not specifically deal with the question of whether or not the permanent injury issue could likewise be retried. Nor do they answer to what extent or under what circumstances, if any, the second jury may consider the medical expenses presented in the first case. In any event, we have drastically altered the meaning and application of the doctrine of res judicata (either in whole or in part). Such a result should more properly be reached by setting aside the judgment and entering an order of dismissal without prejudice. In all fairness, however, I must say that I do not agree with such an alternative where, as here and in Tucker, the case goes to a jury verdict on those questions after a full trial on the merits and the court, after consideration of the alternatives, enters a valid final judgment on the verdict.

In this case the total of the medical bills put in evidence by the appellants was well above the $1,000 threshold amount for each of them. They also had expert testimony that they had sustained permanent injury. The appellees contended from the very outset (in their pleadings and discovery) and adduced competent evidence at the trial that the appellants’ medical expenses were, at least in part, unreasonable or unnecessary and that there was no permanent injury. The jury resolved the conflicting evidence against the appellants. The trial court has not been shown to have acted improperly in any way or to have abused its discretion in denying the appellants’ various motions and entering a final judgment on the verdict.

Under these circumstances the historical and, I submit, the only correct application of the doctrine of res judicata requires that the matter under trial, with all its issues, be laid finally to rest between these parties by one full and fair trial on the merits.

The majority and Tucker create a whole new set of problems. Are the medical expenses put in evidence in the first case to be allowed in evidence before the second (or third or fourth) jury — at least where the form of special verdict results in the first jury fixing the amount of medical expenses they find properly chargeable to the injuries? If the further medical care involves new evidence of the same or other permanent injury — do we then only allow their bills but not their testimony on the conditions they found or the results thereof? How then does the injured party establish that such additional medical expenses were reasonable and necessary or resulted from injuries received in the accident?

I basically agree with a continuing effort to minimize or eliminate the disposition of cases through blind adherence to unnecessarily technical rules or rigid allegiance to outmoded legal principles and doctrines that result in injustice. The law and the procedure of litigation, however, should be stable, meaningful and orderly. Lawyers and litigants should be afforded every fair opportunity for a determination of their case on the merits. Once this is accorded they should be bound by the result. Basic, tested, meaningful rules of procedure and legal principles for determining litigation and the rights of parties are necessary and invaluable.

Res judicata is one of the most accepted and well settled doctrines in the history of jurisprudence. It has its well established exceptions. In essence it means that a final judgment rendered on the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of the rights, questions, facts and justiciable issues between the parties and their privies arising out of a given transaction or occurrence. 19 Fla.Jur., Judgments § 100, p. 107 (1957). It is founded upon both public policy and the interests of litigants and requires that there be an end to litigation, which, without the doctrine, would be endless. 19 Fla.Jur., Judgments § 104, pp. 113-114 (1957).

The pleadings and believable evidence conferred jurisdiction on the trial court that was not ousted by the specific findings of the jury under the special verdict. Analogously, the dollar jurisdictional limit (normally set by legislative action) of the court is not dependent on the amount actually recovered but rather on the amount claimed or placed in controversy in good faith. See Article V, Section 6, Florida Constitution; Section 26.012, Florida Statutes (1975) (Jurisdiction of Circuit Court); Section 34.01, Florida Statutes (1975) (Jurisdiction of County Court); Tantillo v. Miliman, 87 So.2d 413 (Fla.1956); Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (Fla.1926); A. Mortellaro & Co. v. Atlantic Coastline R. R. Co., 91 Fla. 230, 107 So. 528 (Fla.1926); Rocco v. Coffey, 163 So.2d 21 (Fla. 2d DCA 1964).

If, at the conclusion of the appellants’ case, their proof did not show or would not sustain a verdict on either of the jurisdictional requirements the court could, sua sponte, or upon motion have dismissed the case (see e. g., Hutchinson v. Courtney, 86 Fla. 556, 98 So. 582 (Fla.1923).

Similarly, the appellants might choose to take a voluntary dismissal, as of right, at any time up to the retirement of the jury. Fla.R.Civ.P. 1.420.

In Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974), the supreme court approved a dismissal without prejudice if the plaintiff’s pleadings failed to establish either of the jurisdictional thresholds but there was a likelihood that the medical expenses might have subsequently exceeded the threshold. (See Footnotes 1 & 2 and page 23 of the opinion.) Parenthetically I would comment that the supreme court did not foreclose a dismissal with prejudice under different circumstances. It certainly was not dealing with a final judgment after a verdict — special or general — upon a full trial.

The First District Court of Appeal reviewed the correctness of a trial court’s summary judgment with prejudice where the depositions and interrogatories failed to establish the plaintiff had cleared either of the thresholds. They reversed and required the summary judgment to be reentered without prejudice. Smith v. United States Fidelity & Guaranty Co., 305 So.2d 216 (Fla. 1st DCA 1974). A different result might have been reached had the depositions and interrogatories established that the plaintiff had not and could not cross either threshold.

The Third District Court of Appeal has come nearer facing the question in the case of Allstate Insurance Co. v. Ruiz, 305 So.2d 275 (Fla. 3d DCA 1974). In that case the trial court determined that a prima facie case was made by the plaintiff on the threshold question. It submitted the case to the jury and a general verdict was returned for the plaintiff in the amount of $7,750. The trial court also submitted an interrogatory to the jury asking whether the plaintiff had received a “permanent injury.” (Apparently the medical expenses clearly did not exceed the threshold amount.) The question was answered in the negative by the jury. The trial court entered final judgment for the plaintiff on the general verdict of the jury, reasoning that the threshold determination was solely for the court and had been determined adversely to the defendant at the appropriate stage of the trial. The Third District Court of Appeal reversed for entry of a final judgment solely for the property damage on the grounds that the question on permanency — under the evidence — was properly a jury question and their negative finding on that issue mandated a final judgment in accord therewith.

I would affirm the entry of the final judgment by the trial court in the case here considered and foreclose the filing of any new action thereon.


source: Caselaw Access Project

author: BOYER, Chief Judge.

license: Public Domain

text:
    Ronald DUGAN, Appellant, v. CITY OF JACKSONVILLE, a political subdivision of the State of Florida, Appellee.
    No. AA-282.
    District Court of Appeal of Florida, First District.
    March 11, 1977.

      Eugene G. Peek, III, Jacksonville, for appellant.
    William Lee Allen, Jacksonville, for ap-pellee.
   BOYER, Chief Judge.

This appeal is taken from a final judgment denying relief from a zoning classification claimed by appellant (plaintiff in the trial court) to be unreasonable, discriminatory, arbitrary and unconstitutional.

Appellant owns a lot in the City of Jacksonville which is located on the northwest corner of LeBrun Drive and Normandy Boulevard. Normandy Boulevard is a principal arterial street with four lanes accommodating an average of 15,000 vehicles per day. Between appellant’s property and Normandy Boulevard is a 30-foot drainage and utilities easement. Directly across Normandy Boulevard from the subject property is a 7-11 convenience store. Immediately west of the subject property is another convenience store, a laundry and a professional office. To the east is LeBrun Drive and across LeBrun the backyard of a single family dwelling. To the north is a single family dwelling facing LeBrun.

Appellant sought to have his property rezoned from a residential usage to “CPO” (Commercial, Professional and Offices), the least intensive commercial zoning. The City Council, being the ultimate zoning authority in the City of Jacksonville, denied the application, resulting in this proceeding.

Only two witnesses testified at the trial, appellant (himself a member of the Zoning Board of the City of Jacksonville) and one Richard Quigley, head of the Regulatory Division of the Jacksonville Area Planning Board. Appellant testified that his property was unsuitable for residential purposes because of the high volume of vehicular traffic on Normandy Boulevard and the high noise level and lights from the adjoining commercial properties. Mr. Quigley testified that the Jacksonville Area Planning Board had recommended a CPO classification of the subject property as a buffer between the residences in the Normandy subdivision and the more intensive commercial usages to the south and west. He opined that the property was no longer reasonably suitable for residential use.

The learned trial judge, orally announcing his findings and conclusions at the end of the trial, rejected the testimony of Mr. Quigley and denied appellant relief. No witnesses were called by the City, appellee here.

The law applicable to this type of case was carefully catalogued in Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975), and no useful purpose will be served by repeating it here. As might be expected appellee City urged in the trial court and again here that the proper zoning of the subject property is “fairly debatable” and that therefore the determination by the zoning authority may not be disturbed by the courts. As we stated in Davis v. Sails, supra, it is always a matter for the courts to determine whether a zoning authority acted reasonably and fairly or capriciously and arbitrarily. The record in this case reflects that although appellant’s application for zoning was debatable it was not fairly so. The evidence stands uncontra-dicted, even in the absence of Mr. Quigley’s testimony, that the subject property is no longer reasonably suitable for single-family residential purposes and that because of its size (84 feet by 169 feet) it is unsuitable for multi-family usage. The situation depicted by the record in this case is closely analogous to that found in Stokes v. City of Jacksonville, 276 So.2d 200 (Fla. 1st DCA 1973), wherein the City’s refusal to grant a zoning request, approved by the trial court, was reversed on appeal.

Appellant urges, and we agree, that the learned trial judge erred in refusing relief in the posture of this case wherein, as above recited, two witnesses testified favorably to appellant’s position and there was no contradictory evidence. We are not unmindful that a trial judge, sitting as the trier of facts, where he has an opportunity to observe the witness and his demeanor, has a very broad discretion as to whether he shall believe or disbelieve a particular witness. However, sub judice, even if we sustain rejection of the testimony of witness Quig-ley, the testimony of the plaintiff, standing uncontradicted, was sufficient to prove a prima facie case in a factually dissimilar case, the Supreme Court of Florida in Vilas v. Vilas, 153 Fla. 102, 13 So.2d 807 (1943), said:

“ * * * It appears, therefore, that as the appellant’s testimony stood uncontra-dicted and unimpeached it was at least prima facie proof of the allegations of the petition.”
“We recognize the chancellor has a broad discretion in matters of this nature, and that ordinarily his rulings should not be disturbed. But where, as here, testimony is admitted without objection and is not contradicted or impeached in any respect, it should be treated as being received by consent and given all the probative force and effect that its ordinary and usual meaning will afford. Montgomery v. State, 55 Fla. 97, 45 So. 879. And when it consists of facts, as distinguished from opinions, and is not essentially illegal, inherently improbable or unreasonable, contrary to natural laws, opposed to common knowledge, or contradictory within itself, it should not be wholly disregarded or arbitrarily rejected, but should be accepted as proof of the issue for which it is tendered, even though given by an interested party. Brannen v. State, 94 Fla. 656, 114 So. 429. Apparently this rule was not observed.” (13 So.2d 808)

Although we find, based upon the record before us, and applying the law announced in Davis v. Sails, supra, that the record fails to reflect a substantial relationship between the subject zoning classification and the promotion of public health, safety, morals or general welfare and that restriction of appellant’s property to residential classification, under the facts revealed by the record, renders the zoning classification ordinance unconstitutional in its application, we nevertheless feel constrained to comment upon another issue implicit in the arguments of both parties and in the findings and conclusions of the trial judge.

The appellee City argues mightily, citing Conrad v. Jackson, 107 So.2d 369 (Fla. 1958), that in order for appellant to have prevailed in the trial court it was necessary for him to establish that the adverse effects of the surrounding usages were peculiarly injurious to him differing in kind from that suffered by other neighboring property owners. Appellant’s response did not contest application of the law but was an attempt to prove peculiar damage and the same reasoning appears to have been employed by the trial judge while announcing his findings and conclusions. The principle has application in a proper case but not in the case sub judice.

In Conrad v. Jackson, supra, the property owner had constructed a building on his property in violation of a municipal zoning ordinance which his neighbor sought to have enforced, claiming that the building was constructed in direct violation of the ordinance and that independently of the ordinance the building constituted a nuisance which should be abated, seeking to have the building removed. The relief sought in Conrad v. Jackson was not from a zoning ordinance but against a violation of such an ordinance. In that context Justice Thornal, speaking for the Supreme Court, said:

“We mention at the outset that in order to obtain relief against a violation of an ordinance of this nature, a property owner must demonstrate that he suffers peculiar injury and damage different in kind from that suffered by the community at large, as distinguished from a mere difference in degree of injury. * * * ” (Emphasis added; 107 So.2d 369)

The relief sought sub judice was not from violation of an ordinance but from imposition of an ordinance. A zoning authority may not under the guise of a zoning regulation or ordinance which bears no material relation to the public health, safety, morals or general welfare confiscate property nor inflict substantial injury on the owner thereof and when the validity of an ordinance, per se or in application, is properly placed in issue it is the duty of the courts to determine its validity as applied to a specific parcel of property. (Davis v. Sails, supra) The fact that other neighboring property owners are also adversely affected by the same conditions which adversely affect a complaining property owner will not defeat the latter’s right to relief if the evidence reveals invalidity of the ordinance in general or in its application to him.

Recognizing that we are without authority to require application of any particular zoning classification, but recognizing that the evidence in this case stands uncon-tradicted that “CPO” is the most restrictive and least intensive commercial classification afforded under the Comprehensive Zoning Code of the City of Jacksonville, and having found that the record clearly establishes that the subject property is not reasonably usable for residential purposes, we reverse and remand with directions that a judgment be entered enjoining imposition of any zoning classification on appellant’s property as described in his second amended complaint any more restrictive than CPO.

IT IS SO ORDERED.

RAWLS and McCORD, JJ., concur.


author: ERVIN, Judge.

text:
    NEW HAMPSHIRE INSURANCE COMPANY, Petitioner, v. Jimmie S. KIMBRELL, as Administrator of the Estate of Lori Ann Kimbrell, Deceased, and for the use and benefit of Jimmie S. Kimbrell, and Ann M. Kimbrell, natural parents of Lori Ann Kimbrell, Deceased, Respondent.
    No. BB-373.
    District Court of Appeal of Florida, First District.
    March 11, 1977.
    Benjamin W. Redding of Barron, Red-ding, Boggs & Hughes, Panama City, for petitioner.
    Richard H. Powell of Estergren, Fortune, Anchors & Powell, Harry E. Barr, Fort Walton Beach, for respondent.
   ERVIN, Judge.

Petition for writ of certiorari is sought as to the trial court’s interlocutory order rendered March 5, 1976, denying the defendant’s motion to dismiss.

An action for wrongful death allegedly due to the negligence of the defendant, John C. Jackson, was filed on June 13,1975. Defendant Jackson was insured by New Hampshire Insurance Company, also named as a party defendant. On July 3, defense counsel served on the plaintiffs a motion for extension of time to responsively plead. This was not objected to. Before an answer was filed, the defendant Jackson died on September 16, 1975. On October 6, under Fla.R.Civ.P. 1.260, New Hampshire filed a Suggestion of Death of the defendant Jackson.

The copy of the Suggestion of Death sent to opposing counsel on that same day included the certificate of service which stated that a copy of the suggestion was sent by mail on “September 6, 1975.” This date was a typographical error and should have read “October 6, 1975.” The suggestion is in other respects correct and was admittedly received by the opposing counsel.

Answer was thereafter filed by New Hampshire. The plaintiffs, rather than seeking a substitution of party for the deceased defendant, mailed a demand for notice and a “Caveat by Creditor” to the circuit court, clerk.

On January 16, 1976, petitioner New Hampshire filed its motion to dismiss under Fla.R.Civ.P. 1.260, which reads in part:

“(a)(1) . . . Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the. death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.”

New Hampshire argued that no substitution of the proper party had been made by any party within 90 days following service of the Suggestion of Death filed October 6, 1975. Plaintiffs responded by filing a “Motion to Appoint the Administrator Ad Li-tem and to Enlarge Time for Substitution of Parties.”

The trial court’s order on the two motions is as follows:

“This cause having come on for hearing on motion of defendant, NEW HAMPSHIRE INSURANCE COMPANY, to dismiss and plaintiff’s motion to appoint an administrator ad litem and to enlarge time for substitution of parties and the court having found and determined upon the evidence presented and the arguments of counsel that the provisions of Rule 1.260 of the Florida Rules of Civil Procedure, which the defendant seeks to invoke, are technical provisions which require strict construction and that all ambiguities and all questions of compliance be construed most strictly against the movant, and that the instrument entitled ‘Suggestion of Death’ filed by the defendant, NEW HAMPSHIRE INSURANCE COMPANY, seeks to suggest a death on a date subsequent to the date of certificate of service of mailing to the attorney of record for the plaintiff, that being the significant date and not the date which it was forwarded to the Clerk’s office for filing; it is therefore
ORDERED AND ADJUDGED:
1. The instrument labeled a Suggestion of Death is a nullity and of no force and effect; consequently, defendant’s motion is denied.
2. Without ruling on the question of whether or not there was excusable neglect or whether or not plaintiff is entitled to an enlargement of time pursuant to Rule 1.090, plaintiff’s motion for enlargement of time is denied, now being moot.”

We have jurisdiction of this interlocutory appeal although the trial court’s order is not one specifically reviewable under Fla. App. Rule 4.2. Nevertheless in the exercise of our discretion we treat this petition for interlocutory review as a petition for common law certiorari. The trial court’s failure to dismiss the action, if erroneous, constitutes a departure from the essential requirements of law and will cause material injury to the petitioner throughout the remainder of the proceedings for which there will be no adequate remedy by appeal after judgment. Beta Eta House Corporation v. Gregory, 230 So.2d 495 (Fla. 1st DCA 1970).

As to the merits we hold that the trial court was incorrect in declaring the Suggestion of Death a nullity. Rule 1.260 requires only that a party’s death be “suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion . . . .” Rule 1.080(b) explains how service is accomplished:

“. . . Service on the attorney or party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule shall mean (1) handing it to the attorney or to the party or (2) leaving it at his office with his clerk or other person in charge thereof or (3) if there is no one in charge, leaving it in a conspicuous place therein or (4) if the office is closed or the person to be served has no office, leaving it at his usual place of abode with some person of his family above fifteen years of age and informing such person of the contents. Service by mail shall be complete upon mailing.” (Emphasis supplied)

It is clear that the plaintiffs were served with notice of the death of the alleged tortfeasor, and were in fact aware of such death. Indeed, the plaintiffs took steps to perfect their claim against the decedent’s estate. They did not, however, make any timely attempt to substitute the proper party in the present litigation as required by Rule 1.260.

It remains for the trial court to determine whether the plaintiffs’ failure to substitute the proper party should be excused for any reason. It should be noted that Rule 1.260 is practically identical to Rule 25 of the Federal Rules of Civil Procedure. Rule 25, until its amendment effective July 1, 1963, originally allowed a trial court within two years after the death of a party to order substitution of the proper parties. The Florida Rule, prior to its amendment in 1966, also had the two year limitation. We believe the same liberal construction should be accorded to amended Rule 1.260 as has been given Rule 25 by the federal courts:

“The amendment to Rule 25(a)(1) was intended to dispel unwarranted rigidity and allow more flexibility in substitution. ‘It was intended that liberal effect be given to the 1963 amendment.’ Roscoe v. Roscoe, 126 U.S.App.D.C. 317, 322, 379 F.2d 94, 99 (1967). ‘[T]he 90 day period was not intended to act as a bar to otherwise meritorious actions.’ Staggers v. Otto Gerdau Co., 359 F.2d 292, 296 (2d Cir. 1966).” Rende v. Kay, 134 U.S.App. D.C. 403, 415 F.2d 983, 986 (1969).

In Rende, the court held that a suggestion of death does not trigger the running of the 90 day period unless it specifies the person available to be substituted. In Rende, as in the case below, it was the defendant who filed the suggestion and also sought the dismissal. There the plaintiff’s counsel, upon returning to practice following an injury, learned of a motion to dismiss which had been filed due to his failure to file motion for substitution within 90 days after death was suggested. He argued successfully on appeal that since the suggestion of death did not list the name of the proper party it was defective.

The Second District Court of Appeal in King v. Tyree’s of Tampa, Inc., 315 So.2d 538 (Fla. 2nd DCA 1975) declined to follow the Rende holding, stating that to do so would require it “to engraft an exception to R.C.P. 1.260.” Id. at 540. The court continued, however, that Fla.R.Civ.P. 1.540(b)(1) furnished a basis for a party to seek relief from the effect of a judgment upon a demonstration of excusable neglect. Accordingly it affirmed the dismissal of the appellant’s suit by reason of his failure to follow the time limitations set forth by Rule 1.260, without prejudice to his right to proceed under Rule 1.540.

It should not be forgotten that the attorney for the Kimbrells sought an enlargement of time pursuant to Fla.R.Civ.P. 1.090(b), but the appropriateness of such action was not ruled upon by the trial court. Rule 1.080(b) also permits a party to seek relief on the ground of excusable neglect. The author’s comment to amended Rule 1.260 states, inter alia:

“After amendment, substitution was to be made within 90 days after the death was suggested upon the record, but the time could be extended by the court under Rule 1.090(b) if the request for enlargement of time was made within the 90 days or as extended by previous order, or beyond the 90 day period, upon motion establishing excusable neglect.” (Emphasis added.) 30 Fla.Stat.Ann. 368 (1967).

In determining whether the Kimbrells can establish excusable neglect by failing to file a motion for substitution within the 90 day period, the court may wish to consider, but should not be limited by, the following questions: (1) Whether New Hampshire in filing an answer could have misled the Kimbrells into proceeding against the parties originally named? (2) Whether, since as it appears from the record, the deceased died intestate, could some unusual delay have been encountered in obtaining appointment of a personal representative? (3) What difficulties, if any may have been thrust upon the Kimbrells in attempting to locate a successor or representative of the decedent’s estate since the suggestion failed to name a successor or representative?

We remand for the trial court’s consideration of any excusable neglect which may be shown under Fla.R.Civ.P. 1.090(b).

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


author: GRIMES, Judge.

text:
    David JOHNSON, a/k/a "Bosay", Appellant, v. STATE of Florida, Appellee.
    No. 76-255.
    District Court of Appeal of Florida, Second District.
    March 11, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was charged with possession and sale of heroin. The jury found him guilty of the possession but not of the sale. His appeal is primarily directed to (1) the propriety of the court having ordered one of his witnesses held for possible perjury charges while in the presence of the jury and (2) the introduction of evidence that when appellant was arrested twenty-four days after the crime was allegedly committed, he admitted to being a heroin user and that he had track marks on his arm and narcotics paraphernalia in his possession.

The foundation of the state’s case was to be the testimony of a male informant and his girlfriend who accompanied the informant when he made a controlled heroin purchase from the appellant. The state opened its case with the testimony of the informant who suffered a memory lapse. The state then put the informant’s girlfriend on the stand. She described the sale and identified the appellant as the heroin seller. The following day, this witness was called to the stand as a defense witness. She recanted her testimony of the previous day and stated that she was unable to identify the appellant as the heroin seller. In response to a question by the court, she stated that she had lied the day before. She said she had been threatened by the prosecutor and one of the deputies and that she was high on acid when the transaction occurred. At the conclusion of her testimony the following colloquy occurred:

“THE COURT: The court is suggesting to prosecutor that perjury charges be brought against this girl.
PROSECUTOR: I can assure you, Your Honor, this witness will be investigated.
THE COURT: The bailiff is asked to hold this witness in custody and advise the state attorney’s office.”

Despite the absence of an objection or motion for mistrial, appellant claims that it was reversible error for the court to have ordered the witness held pending perjury charges in the presence of the jury.

As a general rule, it is error for the court in the presence of the jury to order a witness to be taken into custody for possible perjury charges. E. g., Lile v. State, 186 Ark. 483, 54 S.W.2d 293 (1932); Johnson v. State, 141 Miss. 49, 105 So. 851 (1925); State v. Swink, 151 N.C. 726, 66 S.E. 448 (1909); 75 Am.Jur.2d, Trial, § 50 (1974); Annot., 127 A.L.R. 1385, 1394 (1940); cf. Atkins v. State, 100 Fla. 897, 130 So. 273 (1930). The reason for the rule is that such action is tantamount to the court giving its opinion upon the credibility of the witness.

Therefore, had this witness testified only for the appellant, the position of appellant might be well taken. Here, however, the witness had testified for both the state and the appellant. She gave conflicting testimony and stated that she had lied the first time she testified. Thus, she was amenable to a charge of perjury by contradictory statements under Section 837.021, Florida Statutes (1975), regardless of which of her statements was true. The judge expressed no opinion as to which version of the witness’ testimony he believed. The credibility of her testimony was left to the jury. Better practice would have dictated the advisability of issuing the order outside of the jury’s presence, but in view of the foregoing circumstances we cannot say that fundamental error was committed. 23 C.J.S. Criminal Law § 996 (1961); see Wallace v. United States, 243 F. 300 (7th Cir.1917).

One of the deputies who interviewed appellant at the jail following his arrest was permitted to testify that the appellant told him that he had used heroin for quite awhile. He also testified that the appellant had “needle marks or track marks” on his arms. A jailer who searched the appellant when he was being booked into jail testified that a needle, syringe and cap were found in the appellant’s jacket. A chemist testified that there was a residue of heroin on the cap. We hold that appellant’s objections to this evidence were properly overruled.

In State v. Wadsworth, 210 So.2d 4 (Fla.1968), the court held that evidence of prior alcoholism was admissible toward proving a charge of manslaughter by an intoxicated motorist. In the course of its opinion our Supreme Court made the following observation with respect to the so-called Williams Rule:

“ . . . In Williams, this court restated the rule respecting the admissibility of evidence in terms of relevancy: Evidence which is relevant to any material issue is admissible unless the sole relevancy is to the character of the accused or his propensity toward crime. . . . ”

The court further stated:

“We also agree that evidence of the prior intemperate habits of a person is relevant to, and may be given as corroborating evidence on, the question of whether such person was intoxicated at any given time and place, when intoxication at such time and place is a material issue in the cause. . . . ”

No one can dispute the fact that taking heroin is an intemperate habit. Evidence that the accused has marks on his arm reflecting the prior use of the narcotic which he is accused of possessing is competent corroborating circumstantial evidence that he possessed it on a given date. Appellant’s admission to using heroin for quite awhile was sufficient to overcome any question of remoteness. See State v. Pierre, 302 So.2d 10 (La.1974). Such evidence does not violate the rule against presenting evidence of other crimes. State v. Hansen, 283 Minn. 502, 169 N.W.2d 48 (Minn.1969); People v. Stump, 14 Cal.App.3d 440, 92 Cal.Rptr. 270 (1971).

On the same theory, the fact that the accused had a hypodermic needle, syringe and spoon or cap in his possession may be properly admitted as circumstantial .evidence of a prior intemperate habit bearing on a material fact in issue. See People v. Norland, 61 Cal.App.2d 364, 143 P.2d 86 (Cal.1943); Starr v. State, 165 Ark. 511, 265 S.W. 54 (1924); see also State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), reversed on other grounds, Vale v. Louisiana, 399 U.S. 30, 90 S.Ct.1969, 26 L.Ed.2d 409 (1970).

AFFIRMED.

HOBSON, A. C. J., and McNULTY, J., concur.

      . In an earlier deposition, the informant had stated that he had purchased the heroin from the appellant. At trial, he stated that he did not see the seller in the courtroom. He admitted that his life had been recently threatened.

      . Appellant makes no contention that he did not first receive proper Miranda warnings.

      . The evidence was only admitted with respect to the charge of possession.

      At first blush our holding appears to conflict with Baffuto v. State, 187 So.2d 79 (Fla.3d DCA 1966), in which our sister court held that it was error to permit a police officer to testify over objection that in his opinion certain scratch marks found on the defendant’s arms when he was arrested were the result of the use of heroin. However, the facts of the case are not reflected in that opinion, and the defendant had been convicted of uttering a forged prescription for a narcotic drug rather than for possessing heroin.

      . See also State v. Smith, 257 La. 896, 244 So.2d 824 (1971), and People v. Harris, 52 Ill.2d 558, 288 N.E.2d 385 (1972), in which such evidence was deemed admissible as relevant to proof of knowledge. However, proof that the defendant had knowledge of the nature of the drug is not indispensable in Florida to the state’s case in chief in the prosecution for illegal possession of drugs. State v. Medlin, 273 So.2d 394 (Fla.1973).


author: McNULTY, Acting Chief Judge.

text:
    FREEDOM FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. YAKLE LUMBER YARD et al., Appellees.
    No. 76-870.
    District Court of Appeal of Florida, Second District.
    March 11, 1977.
    Charlie Luckie, Jr. and John A. Curtiss of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    John R. Bonner, Sr. of Bonner & Hogan, Clearwater, for appellees.
   McNULTY, Acting Chief Judge.

In this interlocutory appeal we reverse a summary judgment against Freedom Federal Savings and Loan Association, mortgagee/lender, and in favor of certain mechanics’ lienors against whom Freedom Federal has cross-claimed herein.

In April of 1974, Freedom Federal entered into a construction loan agreement with the property owner, Belhaven Development Company. A note and mortgage were executed and recorded on the date of that agreement, together with a notice of commencement of work.

Construction was commenced and loan funds were disbursed under separate requisitions as construction progressed. Freedom Federal refused, however, to disburse funds pursuant to the eleventh requisition on the grounds that it showed an unauthorized increase in the total amount of the loan.

In December of 1974, the owner filed the instant suit against Freedom Federal seeking specifically to enforce performance of the loan agreement and, additionally, praying for damages. Freedom answered, counterclaimed for foreclosure of the mortgage, and cross-claimed against all lienors of record, including appellees/mechanics’ lien-ors herein.

Freedom Federal’s subsequent motion for summary judgment was denied and appel-lees made oral motion for summary judgment at that hearing. In the order denying Freedom Federal’s motion, dated April 8, 1976, the court stated that he felt entry of summary final judgment in favor of the lien claimants, and establishing the priority of their liens over the mortgage of Freedom Federal, would be appropriate unless Freedom Federal could demonstrate from the then present record in the case that there was an unresolved material issue to a material fact. He deferred final determination until a later date.

Thereafter, on April 15, 1976, Freedom Federal filed with the court an affidavit of one of its officers, Anders Johnson, in opposition to the appellees’/lienors’ oral motion. On April 19 a hearing was held but the court refused to allow into the record or consider that affidavit. The court then found no material issue of fact existed and entered the judgment appealed. We think he was wrong.

First, the court erred by ruling that the affidavit of appellant would not be considered and appellant would be limited to the record as it stood at the time of the entry of the April 8th order. Rule 1.510(c), Fla.R.Civ.P., states that “the adverse party may serve opposing affidavits prior to the day of the hearing.” The court should have considered the affidavit.

Secondly, a party defending against a summary judgment motion does not have to show the existence of a genuine issue of fact until the moving party meets his burden of showing the non -existence of such fact. With respect to the lien claimants’ oral motion for summary judgment, therefore, the trial judge erroneously placed the burden on Freedom Federal to demonstrate the existence of a genuine issue of material fact.

Finally, and apart from the foregoing^ the record demonstrates that at the time of the April 8th order there was, indeed, a genuine issue of material fact.

Concerning the merits, we interpose to say here that the arguments advanced by Freedom Federal may be well taken, but we need not reach them here. Once the summary judgment is set aside, the trial court, we are sure, will accurately resolve the merits in light of our previous holding in J. G. Plumbing Service, Inc. v. Coastal Mortgage Company.

In view of the foregoing, therefore, the summary judgment appealed should be, and the same hereby is, reversed and the cause is remanded for further proceedings not inconsistent herewith.

GRIMES, J., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.

      . Holl v. Talcott, 191 So.2d 40 (Fla.1966).

      . 329 So.2d 393 (Fla.2d DCA 1976).


author: MILLS, Judge. MILLS, Judge.

text:
    PRICE WISE BUYING GROUP et al., Petitioners, v. Charles A. NUZUM, as Director of the Division of Beverage, a division of the Department of Business Regulation of the State of Florida, Respondent.
    No. BB-350.
    District Court of Appeal, State of Florida, First District.
    Feb. 2, 1977.
    Rehearing Denied March 29, 1977.
    Jerome M. Novey, of Novey & Blanton, Tallahassee, for petitioner.
    Charles L. Curtis, and Charles F. Tunni-cliff, Tallahassee, for respondent.
   MILLS, Judge.

Petitioners seek review of a Declaratory Statement issued by the Respondent stating that Respondent’s prior interpretation of its rule, Florida Administrative Rule 7A-4.50, was incorrect and without statutory authority, and that all memoranda and informal discussions supporting that interpretation would no longer be followed by the Respondent. The issue which is determinative of this review is whether the Declaratory Statement is a rule as defined in Section 120.52(14), Florida Statutes (1975).

Rule 7A-4.50, authorizing cooperative pool buying by licensed vendors of alcoholic beverages, became law on 30 October 1973. Pursuant to that rule, the former director of the Respondent issued a memorandum on 10 July 1974 to “All Distributors, All Agents of Buying Groups” interpreting Rule 7A-4.50 as it relates to the Tied House Evil Law. Since that date, the former director’s memorandum has represented the Respondent’s official position regarding the extension of credit to vendors and has been relied upon by the members of the alcoholic beverage industry in Florida.

On 26 January 1976, the present director issued a memorandum rescinding all prior memoranda regarding cooperative pool buying vendors. In response to that memorandum, Petitioner, Independent Beverage Dealers, Inc., filed a Petition for Declaratory Statement with the Respondent requesting a clarification of the Respondent’s interpretation of Rule 7A-4.50 as it related to the Tied House Evil Law. Pursuant to the Petitioner’s request, the Respondent caused a Notice of Petition for Declaratory Statement to be published in the Florida Administrative Weekly on 27 February 1976.

On 8 March 1976, the Respondent issued its Declaratory Statement of which review is sought.

Rule as defined by Section 120.52(14), Florida Statutes (1975), “means each agency statement of general applicability that implements, interprets or prescribes law or policy or describes the organization, procedure or practice requirements of an agency and includes the amendment or repeal of a rule.”

The Declaratory Statement is a rule as defined by Section 120.52(14) because it is an agency statement of general applicability that implements, interprets and prescribes law or policy. It expressly rescinds the prior interpretation given Rule 7A-4.50 as it relates to the Tied House Evil Law, and sets forth a new interpretation of that law.

Section 120.52(14) also states that the term rule does not include:

“(a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public.
(b) Legal memoranda or opinions issued to an agency by the attorney general or agency legal opinions prior to their use in connection with the agency actions, or
(c) The preparation or modification of:
1. Agency budgets,
2. Contractual provisions reached as a result of collective bargaining, or,
3. • Agricultural marketing orders under Chapter 573 or Chapter 601.”

The Declaratory Statement does not fall within one of these exceptions because it is final agency action which affects the. private interest of vendors belonging to cooperative pooling groups. Therefore, the Declaratory Statement falls within the general definition of rule, because it is a general principle of statutory construction that where a statute sets forth exceptions, no others may be implied to be intended. Williams v. American Surety Company of New York, 99 So.2d 877 (Fla.2d DCA 1958); Dobbs v. Sea Isle Hotel, 56 So.2d 341 (Fla.1952).

Section 120.54, Florida Statutes (1975), sets forth the procedure for the adoption, amendment or repeal of any rule by an administrative agency. Subsection (1) states that:

“Prior to the adoption, amendment or repeal of any rule not described in subsection (8), an agency shall give notice of its intended action, setting forth a short and plain explanation of the purpose and effect of the proposed rule, a summary of the proposed rule, and the specific legal authority under which its adoption is authorized. In addition the agency shall set forth an estimate of the economic impact of the proposed rule on all persons affected by it. If the agency determines this is not possible, the reasons why the costs of the proposed rule cannot be estimated shall be stated in the notice. . . .”

The Respondent failed to comply with the above procedures in that the Declaratory Statement was not properly identified as a rule and therefore did not give proper notice to interested parties that a rule was being promulgated. In addition, the Declaratory Statement did not set forth an estimate of the economic impact of the proposed rule on all persons affected by it.

The Respondent contends that Section 120.565, Florida Statutes (1975), controls the procedure applicable to the statement at issue here rather than Section 120.54. This would be true if the Respondent’s statement dealt with the applicability of a statutory provision, or rule, or agency order. But such is not the case here.. The Respondent’s statement is of general applicability, implementing, interpreting and prescribing law or policy, expressly rescinding its prior interpretation of its Rule 7A-4.50 as it relates to the Tied House Evil Law, and setting forth a new interpretation of that lav/.

The Declaratory Statement is invalid and is quashed. This case is remanded for such further action as Respondent deems necessary.

BOYER, C. J., and McCORD, J., concur.

ON PETITION FOR REHEARING

MILLS, Judge.

Although respondent’s petition for rehearing correctly states that Rule 7A-4.-50 was amended on 1 March 1976, respondent did not argue in its brief nor at oral argument that it was this action that rescinded the former director’s memorandum, not its declaratory statement. We cannot consider an issue which is raised for the first time in the peititon for rehearing. In addition, Rule 7A-4.50, effective 1 March 1976, is not substantially different from Rule 7A-4.50, effective 30 October 1973.

The petition for rehearing is denied.

BOYER, C. J., and McCORD, J., concur.