text:
    Kenneth Andre MOLINE, Appellant, v. Lynn KRUKOWSKI, a minor, By and Through her mother Marie Krukowski and Marie Krukowski, Individually, Appellees.
    Nos. 75-591, 75-592.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 1,1976.

      A. Jay Cristol and Steven Mishan, Miami, for appellant.
    Arthur F. McCormick, So. Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant appeals an order denying his motion to set aside judgment for want of jurisdiction and for relief under RCP 1.540 (b).

Marie Krukowski alleged that on September 19, 1968 she was operating a vehicle which collided or nearly collided with the vehicle of the defendant Kenneth Moline, appellant herein. Marie followed Kenneth to his home and accused him of causing the incident. During this confrontation, defendant allegedly cursed Marie, threatened her with clenched fists and brandished a large carving knife.

Subsequently, Marie and her minor daughter Lynn sued the defendant for damages for injuries arising out'of defendant’s negligence giving rise to the incident. Plaintiff Marie Krukowski also prayed for compensatory and punitive damages for assault as a result of the defendant’s conduct during their confrontation outside his house. Prior to receiving process, defendant, a Delta Airlines pilot, moved to Dallas, Texas. Subsequently, plaintiffs, alleging that defendant had become a non-resident, served the Secretary of State pursuant to §§ 48.161, 48.171, Fla.Stat., and notice of service and a copy of process was sent by certified mail-return receipt requested to defendant’s Dallas address. The letter was returned with the notation “lady refused to sign” (presumably, the defendant’s wife). Eventually a default judgment was entered against the defendant and after a jury trial on the issue of damages, plaintiffs received a judgment for the total sum of $17,000 in compensatory and punitive damages. However, there was no finding as to what portion of the money judgment was attributed to the negligence count and what portion was for the assault count. Plaintiffs then obtained a writ of garnishment against defendant’s employer whereupon defendant, becoming aware of the judgment filed a motion to set aside judgment for want of jurisdiction and for relief under RCP 1.540(b). This motion was denied and defendant appeals.

Defendant first contends that he could not be served for the assault count under § 48.171, Fla.Stat., the automobile long-arm statute. We' find this point well taken.

§ 48.171, Fla.Stat. relied upon by the plaintiffs to obtain service of process reads as follows:

“48.171 Service on nonresident motor vehicle owners, etc.
“Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the law of this state to nonresident operators and owners, of operating a motor vehicle or of having it operated, or of permitting any motor vehicle owned, or leased, or controlled by him to be operated with his knowledge, permission, acquiescence or consent, within the state, or any resident of this state, being the licensed operator or owner of or the lessee, or otherwise entitled to control any motor vehicle under the laws of this state, who becomes a nonresident or conceals his whereabouts, by the acceptance or licensure and by the operation of the motor vehicle, either in person, or by or through his servants, agents, or employees, or by persons with his knowledge, acquiescence and consent within the state constitutes the secretary of state his agent for the service of process in any civil action begun in the courts of the state against such operator or owner, lessee or other person entitled to control of the motor vehicle, arising out of or by reason of any accident or collision occurring within the state in which the motor vehicle is involved.” [Emphasis Supplied]

Statutes like § 48.171, providing for substituted service, must be construed strictly and further must be given their plain and obvious meaning. See Fleischman v. Morris, Fla.App. 1972, 260 So.2d 278 and State v. Butler, Fla.App. 1976, 325 So.2d 55.

We conclude that the assault in the instant case, which did not involve the use of the motor vehicle or take place at the scene of the alleged collision or near collision, cannot be said to be an action arising out of any accident or collision and, therefore, not within the purview of § 48.171, Fla.Stat. See Annot. 73 A.L.R.2d 1351, 1367 (1960). Thus, we find that service of process on the Secretary of State with respect to the assault count was void, and the trial court having failed to obtain jurisdiction, the motion to set aside the judgment as to this count should have been granted.

We also considered appellant’s second point on appeal, that plaintiffs failed to comply with the requirements of § 48.161, Fla.Stat. regarding the negligence count, and find it to be without merit.

The jury having awarded plaintiffs a total of $17,000 in compensatory and punitive damages with no indication as to what portion of this aggregate sum is attributable to the negligence count and what to the assault count, we vacate the final judgment and remand the cause to the trial court with directions to hold a new trial on the issue of compensatory damages only on the negligence count.

Reversed and remanded with directions.

      . “48.161 Method of substituted service on nonresident
      “(1) When authorized by law, substituted service of process on a nonresident or a person who conceals his whereabouts by serving a public officer designated by law shall be made by leaving a copy of the process with a fee of $5.00 with the public officer or in his office or by mailing the copies by certified mail to the public officer with the fee. The service is sufficient service on a defendant who has appointed a public officer as his agent for the service of process. Notice of service and a copy of the process shall be sent forthwith by registered or certified mail by the plaintiff or his attorney to the defendant, and the defendant’s return receipt and the affidavit of the plaintiff or his attorney of compliance shall be filed on or before the return day of the process or within such time as the court allows, or the notice and copy shall be served on the defendant, if found within the state, by an officer authorized to serve legal process, or if found without the state, by a sheriff or a deputy sheriff of any county of this state or any duly constituted public officer qualified to serve like process in the state or jurisdiction where the defendant is found. The officer’s return showing service shall be filed on or before the return day of the process or within such time a? the court allows. The fee paid by the plaintiff to the public officer shall be taxed as cost if he prevails in the action. The public officer shall keep a record of all process served on him showing the day and hour of service.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Milton S. MONYEK, Appellant, v. Norman S. KLEIN et al., Appellees.
    No. 75-251.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Bryson & Berman, Miami, Swann & Glass, Coral Gables, for appellant.
    Podhurst, Orseck & Parks, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff appeals from an adverse summary judgment holding this legal malpractice action barred by the statute of limitations and doctrine of collateral estoppel.

Appellant Milton Monyek and appellee Norman Klein, Esq. together with his law firm of Linet, Schwartz & Klein engaged in two joint real estate acquisitions. Mon-yek, upon being called upon for the full downpayment on the purchase of the properties and not 50% as originally thought, believed that Klein had deceived him. Monyek then filed suit for a declaration of an equitable trust and other relief on the grounds that Klein and his law firm breached the fiduciary duty owing to him in that they had not advised him that they were not putting up 50% of the downpay-ments, and that they used his money to acquire their 50% co-venture interest. Defendants answered that the furnishing of the monies for the full downpayments was Monyek’s contribution; whereas, the furnishing of the necessary legal services and the negotiations of the deals was defendants’ contribution, and counterclaimed for rescission of the agreements “since plaintiff claims to be under a mutual mistake of fact of the essential terms of the agreement.” At the conclusion of trial, the judge, finding that Klein and the law firm had made full disclosure of the terms and conditions of the real estate acquisitions and that they had not breached a fiduciary duty to Monyek, entered judgment against him, granted defendants’ counterclaim for rescission and ordered Monyek reimbursed for all monies invested plus interest in exchange for his deeding all his interest in the ventures to Klein and his law firm. This judgment was not appealed.

Approximately a year and a half later Monyek filed the instant cause of action seeking compensatory and punitive damages for defendants’ alleged negligence in failing (1) to draft an agreement clearly setting out the terms of the real estate ventures, (2) to see that plaintiff understood the terms of the ventures, (3) to advise plaintiff to seek his own legal counsel. Following pretrial discovery, defendants filed a motion for summary judgment which was granted on the ground that plaintiff’s action was barred by the applicable statute of limitations (§ 95.11(5) (e), Fla.Stat.) and by the doctrine of collateral estoppel. Plaintiff appeals from this summary judgment. We affirm.

Under the principle of estoppel by judgment, parties are estopped from litigating in a second suit points and questions which were common to both the first and second causes of action and which actually were adjudicated in the prior litigation. Golden View Condominium, Inc. v. City of Hallandale, Fla.App.1973, 279 So.2d 323.

Plaintiff in the first cause of action having pled as an affirmative defense to the defendants’ counterclaim for rescission the negligence or failure of the defendants to discharge their duty to fully inform the plaintiff of the transaction undertaken and this issue having been determined adversely to plaintiff, the trial judge in the instant case was correct in concluding that plaintiff now is estopped to contest the finding in the prior litigation that the defendants dealt openly, fairly, and in good faith with him. Cf. Orange Julius Realty Corp. v. Sunshine Toy Center, Inc., Fla.App.1971, 251 So.2d 681; Seaboard Coast Line Railroad Company v. Big Chief Construction Company, Fla.App.1972, 265 So.2d 380; Butler v. Richard Bertram & Company, Fla.App. 1973, 281 So.2d 227.

Affirmed.


author: BOYER, Chief Judge.

text:
    Jack DURRANCE et al., Appellants, v. Dorsey A. SANDERS, Jr., et ux., Appellees.
    Nos. W-495, W-496.
    District Court of Appeal of Florida, First District.
    March 30, 1976.
    Rehearing Denied April 15, 1976.

      Delbridge L. Gibbs, of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellants.
    James E. Clayton, of Clayton, Duncan, Joynston, Clayton, Quincey, Ireland & Felder, Gainesville, for appellees.
   BOYER, Chief Judge.

Appellees, plaintiffs in the trial court, sued appellants on the theory of nuisance, claiming damages allegedly caused by smoke, odors, and pollution emanating from compost dumped by the other appellants on property owned by appellant White-hurst adjacent to that belonging to appel-lees. From a final judgment based on a jury verdict in favor of appellees and from the denial of their motion for new trial, appellants have appealed, alleging that the trial court erred in admitting evidence of harmful bacteria found in the compost and' of damages resulting from smoke and odors when the compost inexplicably caught fire. Appellees have cross-assigned as error the refusal of the trial court to tax as costs the witness fee charged by ap-pellees’ expert witness. The right of ap-pellees to recover damages caused by the flies, odors, pollution and the like associated with the compost is not seriously questioned.

Appellants began dumping near appel-lees’ homes in January of 1971. On February 13, 1971, the compost caught fire and burned for a week. Authorities were never able to determine the cause of the fire. While appellees’ complaints alleged that the fire was of unknown origin, their expert witness at trial, Dr. Gilcreas, testified that it was possible that the material could have caught fire through spontaneous combustion. Appellants’ expert, Dr. Knuth, stated at trial that spontaneous combustion was impossible.

Appellees also alleged in their complaints that the compost polluted their well water. Appellee Dr. Sanders, a veterinarian, testified that he conducted tests on his well water and concluded, although he did not keep written records of the tests, that the water contained bacteria. Appellee Mrs. Tooke testified that she boiled the drinking water obtained from her well for several months because of fear of contamination. Appellees’ expert Dr. Gilcreas analyzed water samples from appellees’ wells for the period between May of 1971 and September of 1972. He concluded from his analysis that the Tookes’ water was uncontaminated while the Sanders’ water was too polluted to drink in five out of fifteen samples. He further testified that the compost could have polluted the well, but that he could not prove it for certain. Because of his opinion that the compost presented a danger as a potential pollutant, he stated that he would condemn any water supply within 1,000 to 1,500 feet of the place where the pollutant was present. Appellants moved for a directed verdict after appellees had concluded the presentation of their case. When the trial court denied the motion for directed verdict, appellants presented their own experts who testified, in effect, that there would be very little, if any, chance of well pollution caused by bacteria from the compost. After closing arguments, appellants’ counsel requested that the trial judge instruct the jury that no damages should be awarded for the drilling of a new well on Dr. Sanders’ property since appellees did not establish a causal connection between the alleged pollution of Dr. Sanders’ well and the existence of any pollutants in the compost. The trial court granted the request and instructed the jury accordingly.

The jury returned verdicts in favor of the Sanders in excess of $16,000 and for the Tookes in an amount exceeding 119,00o. Appellees were allowed certain costs, but their requests for taxation of Dr. Gilcreas’ fee were denied. Appellants’ motions for new trial and/or remittitur were likewise denied.

Appellants’ position is that the damages associated with the compost are recoverable, but that the injuries suffered by appel-lees when the compost caught fire are separate and distinct from the nuisance action and necessitate allegations and proof of negligence. Appellees assert that they are not seeking to recover damages from the fire, but only from the nuisance created by the odor and smoke.

Resolution of the question of recovery for damages caused by the fire begins with an analysis of that body of tort law known as “nuisance”. While the term is not susceptible of easy definition, one authority has noted, “it [nuisance] has reference to the interest invaded, to the damage or harm inflicted, and not to any particular kind of act or omission which has led to the invasion.” (Prosser on Torts § 88 (3rd Ed.1964) ) Although no particular type of conduct on behalf of the defendants is necessary to establish a nuisance, it is generally agreed that a nuisance may rest on an intentional invasion of a person’s property rights, on negligence, or on conduct abnormal and out of place in its surroundings.

Thus, appellees are correct in claiming that the nuisance does not consist of the fire itself, whether started negligently or otherwise, but rather in the smoke, odors, etc., that inflicted the injury upon appellees. Nevertheless, a plaintiff in a nuisance action must demonstrate that the maintenance of the nuisance was the natural and proximate cause of the injury. (66 C.J.S. Nuisance § 8, p. 743) Our examination of the pleadings and the evidence adduced at trial lead us to the inescapable conclusion that the nuisance maintained by appellants (the piles of compost) was not proved to have proximately caused the injuries suffered by appellees as a result of the fire. Clearly, appellees were responsible for the compost and the damages associated with it. However, the fire is a different matter, even though ap-pellees’ complaints asserted that the fire was of unknown origin, they attempted to establish at trial that the compost caught fire by means of spontaneous combustion. At best, then, appellees have established the possibility of spontaneous combustion, which falls far short of a showing that the fire, and the smoke and odors associated therewith, were proximately caused by some activity on the part of appellants. The mere dumping of the compost did not cause the fire. There was no evidence presented at trial tending to show that any act of appellants, either intentional, negligent, or abnormal or out of place in its surroundings caused the fire. In contrast to the smoke damage caused by the fire is the damage resulting from the compost, both before and after the fire. In the latter case, the evidence presented at trial clearly established the acts of appellants which caused the nuisance. No comparable showing was made regarding the fire.

Appellants further urge that since appellees failed to connect the alleged harmful bacteria with any damage sustained, the testimony as to the bacteria should not have been admitted and was so prejudicial as to warrant reversal. Appel-lees, on the other hand, argue that the testimony of the experts presented by both sides agreed that there was a potential contamination of appellees’ well water by the compost, and that this potential for contamination was a proper question for the jury to consider. However, testimony consisting of guesses, conjectures or speculation (suppositions without a premise of fact) is clearly inadmissible. (Drackett Products Co. v. Blue, Sup.Ct.Fla.1963, 152 So.2d 463) The evidence of the alleged harmful bacteria involved in the instant case was of a speculative nature, served no useful purpose, and was prejudicial to appellants’ position. In the absence of proof of a causal connection between the compost, the bacteria and some claimed damage such was not a proper issue for jury consideration.

As to appellees’ point relating to the failure of the trial court to tax Dr. Gilcreas’ expert witness fee as costs, we find that the trial court acted correctly. In taxing costs, a trial court has wide discretion. (Conboy v. City of Naples, Fla.App. 2d 1970, 230 So.2d 476, cert. den. 400 U.S. 825, 91 S.Ct. 48, 27 L.Ed.2d 53 (1970) ) Under the circumstances of the instant case, the trial court did not abuse that discretion.

Reversed and remanded for a new trial.

MILLS, J., and SACK, MARTIN, Associate Judge, concur.

      . During oral argument, appellants argued that the jury should not have considered testimony from an expert real estate appraiser who calculated damages for loss of rental value during a 24 month period for the Sanders and for the Tookes since the evidence showed that after the dumping began in January of 1971, the Tookes left their property for only two days until they sold the property in April of 1973, in contrast to the Sanders who left their property soon after the compost caught on fire and never returned. Inasmuch as appellants have not assigned reception of such evidence concerning loss of rental value as error, we are unable to consider that point on appeal.


author: GRIMES, Judge.

text:
    William R. MINOR, Appellant, v. STATE of Florida, Appellee.
    No. 75-371.
    District Court of Appeal of Florida, Second District.
    March 24, 1976.
    Jack O. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevm, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was charged with entering without breaking a dwelling house with intent to commit a misdemeanor, to wit: assault. The court instructed the jury that they might find appellant guilty of either entering without breaking or trespass after warning. The jury returned a verdict finding appellant guilty of trespass after warning as proscribed by Fla.Stat. § 821.01 (1973). Judgment and sentence were entered accordingly.

With respect to the crime of entering without breaking, the crime of trespass after warning is a lesser included offense of the type described as category (4) in Brown v. State, Fla.1968, 206 So.2d 377. Trespass after warning may or may not be included in the crime of entering without breaking “depending upon the particular allegations of the accusatory pleading and the proofs tendered in support thereof.” Brown v. State, supra.

In State v. Anderson, Fla.1972, 270 So. 2d 353, the Supreme Court rejected the notion that a category (4) offense encompasses lesser offenses within the general scope of the charge made. The court noted that an instruction on a category (4) lesser offense was not appropriate unless the accusatory pleading alleges all of the essential elements of the lesser offense.

In the instant case, assuming that the state proved all the elements of the crime of trespass after warning, the essential element of warning was not alleged in the information. Hence, trespass after warning did not qualify as a lesser offense within category (4). In Evanco v. State, Fla.App.1st, 1975, 318 So.2d 535, the court reached a similar conclusion when it reversed a conviction for trespass after warning on an information charging breaking and entering with intent to commit a misdemeanor, to wit: petit larceny.

The state’s primary argument in this case centers on the fact that no objection was made to the state’s requested instruction on trespass after warning. A similar contention has been rejected in three recent cases. Haley v. State, Fla. App.2d, 1975, 315 So.2d 525; O’Neal v. State, Fla.App.2d, 1975, 308 So.2d 569 (overruled on other grounds) ; Priester v. State, Fla.App.4th, 1974, 294 So.2d 421. Thus, in Haley v. State, supra, this court said:

“The State argues that appellants waived this issue because the record fails to reveal a timely objection to the jury instructions. This case does not merely involve erroneous instructions. The defendants were convicted of a crime not charged in the informations. This is fundamental error. . . .”

The judgment is reversed with directions that appellant be discharged from the crime charged in the information.

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


text:
    Judy FAGGIONATO, Appellant, v. STATE of Florida, Appellee.
    No. 75-923.
    District Court of Appeal of Florida, Second District.
    March 24, 1976.

      James A. Gardner, Public Defender, and Patrick R. Cunningham, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was found guilty of felony possession of marijuana and was placed on two years probation with certain county jail time and a fine. We reverse.

Appellant was the non-owner driver of a car stopped by officers as it left a construction site about 11:30 P.M. The occupants of the car were assembled by the detaining officers at the rear of the car for purposes of identification. Sergeant Oscar Perez of the Manatee County Sheriffs Department approached the car and detected the odor of marijuana in the car. He shined his flashlight in the car and saw a plastic bag of what proved to be marijuana under the dashboard on the transmission hump. There were ashes in the ashtray but these were not analyzed. There was no smoke and no “roaches” in the car. Appellant was tried jointly with the car’s owner, Blake Hunter, and a passenger, William Thiel. At the close of the state’s case, a directed verdict of acquittal was entered as to the owner, Hunter.

The state’s case against appellant was, and had to be, predicated on “constructive” possession of the marijuana found. But in order to establish this, both knowledge of the contraband and the ability to control it or reduce it to appellant’s personal dominion had to be shown. Under the factual framework of this case the mere presence of appellant in another’s car in which was found the marijuana involved herein was a circumstance insufficient of itself to sustain the conviction.

Accordingly, the order appealed from should be, and it is hereby, reversed; and the cause is remanded with directions to discharge the appellant.

McNULTY, C. J., and HOBSON and BOARDMAN, JJ., concur.

      . See Taylor v. State (Fla.App.2nd, 1975), 319 So.2d 114.


author: HOBSON, Judge.

text:
    GENERAL DEVELOPMENT CORPORATION, Appellant, v. Gerald BENNETT and Edward G. Cridland d/b/a B. J. E. Industries, Inc., Appellees.
    No. 75-1687.
    District Court of Appeal of Florida, Second District.
    March 24, 1976.
    E. David Johnson, Wotitzky, Wotitzky, Johnson, Mandell & Batsel, Punta Gorda, for appellant.
    Kenton H. Haymans, Farr, Farr, Hay-mans, Moseley & Odom, Punta Gorda, for appellees.
   HOBSON, Judge.

This is an interlocutory appeal from an order denying the appellant’s motion to dismiss appellees’ amended complaint. The amended complaint failed to allege service of the claim of lien as required by Florida Statute 713.08, such failure being a point raised on appeal by appellant. Appellees concede that the amended complaint is subject to dismissal for the failure to allege service of the claim of lien and that this cause should be remanded.

REVERSED and REMANDED with the provision that the appellees be given the right to file another amended complaint.

McNULTY, C. J., and BOARDMAN, J., concur.


text:
    V. Gaylord ANDERSON et al., Appellants, v. Richard E. TOOLE et al., Appellees.
    No. 75-1258.
    District Court of Appeal of Florida, Second District.
    March 24, 1976.
    Robert F. Vason, Jr., of Huebsch, Bowen & Vason, Eustis, for appellants.
    Walter S. McLin, III, of Davis, McLin, Burnsed, Austin & Cyrus, P. A., Leesburg, for appellees.
   GRIMES, Judge.

The plaintiffs (appellants) filed suit seeking access across the property of defendants (appellees) to State Road 19. Title to both properties devolved from a common grantor. The complaint requested declaratory and injunctive relief based upon one of three alternative remedies:

(1) implied grant of way of necessity pursuant to Fla.Stat. § 704.01(1) (1973);
(2) statutory way of necessity pursuant to Fla.Stat. § 704.01(2) (1973); and
(3) prescriptive easement.

By sworn complaint and affidavit, the plaintiffs asserted that they and their predecessors in title for a period of more than twenty years had continuously and openly used an easement over the defendants’ property for ingress and egress to State Road 19. One of the defendants filed an affidavit stating that none of the plaintiffs or their predecessors had had the continuous use of the defendants’ property for ingress and egress for any twenty year period since the conveyance of the property from the common grantor. The court entered summary judgment for the defendants with the observation that the plaintiffs had other access to their property.

With respect to the claim for prescriptive easement, the issue on this appeal has boiled down to whether the plaintiffs’ failure to state in the affidavit the conclusion that their use of the easement was “adverse” is fatal to their position.

In Downing v. Bird, Fla. 1958, 100 So.2d 57, the Supreme Court stated:

“In either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period. In addition the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse claim of the claimant is imputed to the owner. In both rights the use or possession must be inconsistent with the owner’s use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner has a right to a legal action to stop it, such as an action for trespass or ejectment.
“Further in either prescription or adverse possession, the use or possession is presumed to be in subordination to the title of the true owner, and with his permission and the burden is on the claimant to prove that the use of possession is adverse. . . .”

These principles were amplified in Hunt Land Holding Company v. Schramm, Fla. App.2d, 1960, 121 So.2d 697, where it was said:

“There is a distinction between acquiring of title by adverse possession and the acquiring of a prescriptive right. In the former, title must be through possession. In the latter, a prescriptive right is through the use of the privilege without actual possession. In acquisition of the title by adverse possession, the possession must be exclusive, while in acquisition of a prescriptive right, the use may be in common with the owner or the public. Downing v. Bird, supra.
“In either prescription or adverse possession, the use or possession is presumed to be in subordination to the title and thus is presumed to be permissive. However, the presumption of permissive use or possession is not conclusive and is ineffectual in the face of facts which cause its dissipation.
“Declarations or assertions by a claimant are not essential to possession or use under claim of right; rather, the adverse character of possession or use is a question discoverable and determinable from all the circumstances of the case. .” (Emphasis supplied.)

This court went on to hold that the continuous, uninterrupted, open and notorious use of a ditch for drainage was sufficient to impute to the landowners that the claimants were exercising their privilege under an adverse claim of right which was inconsistent with the rights of the owners to the use and enjoyment of their lands.

In order to obtain a summary judgment in this case, the burden was upon the defendants to show conclusively that there were no material issues of fact. Smith v. Avis Rent-A-Car System, Inc., Fla,App.2d, 1974, 297 So.2d 841. Whether the plaintiffs’ use of the easement was of a sufficient character as to constitute an adverse use cannot be answered until the surrounding facts and circumstances have been fully developed. Hunt Land Holding Company v. Schramm, supra.

In view of our holding on the claim for prescriptive easement, there is no need to consider the plaintiffs’ contentions with respect to the other two remedies sought in the complaint. Suffice it to say, the issues raised by these claims are not free from doubt, and the development of additional facts at a trial may well assist the court in ultimately passing upon the validity of these claims.

REVERSED and REMANDED.

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


text:
    Guillermo LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 74-421.
    District Court of Appeal of Florida, Third District.
    March 29, 1976.
    Phillip A. Hubbart, Public Defender, and Kurt L. Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on December 31, 1974 (305 So.2d 268) affirming in part and reversing in part the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed January 14, 1976 (327 So.2d 27) and mandate now lodged in this court, quashed this court’s judgment and remanded the cause with directions;

NOW THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on January 16, 1975 is withdrawn, the judgment of this court filed in this cause on December 31, 1974 insofar as it is in conflict with the said opinion and judgment of the Supreme Court of Florida, is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the sentence of the Circuit Court herein sought to be reviewed is reinstated and affirmed in accordance with the opinion of the Supreme Court of Florida in State v. Jones, 327 So.2d 18, Fla.1976. Costs allowed shall be taxed in the trial court (Rule 3.16, subd. b, F.A.R.).


author: SCHEB, Judge.

text:
    Julius FISKE, Appellant, v. Mae D. MOCZIK and the Palms Nursery & Landscaping Company, Inc., a Florida Corporation, Appellees.
    No. 75-1016.
    District Court of Appeal of Florida, Second District.
    March 26, 1976.

      B. Clarke Nichols, of Vega, Brown & Nichols, Naples, for appellant.
    Mark S. Roth, Miami Beach, for appel-lee Moczik; and Jackson L. Boughner, Naples, for appellee Palms Nursery & Landscaping Company, Inc.
   SCHEB, Judge.

This appeal focuses primarily on the question of the proper measure of damages to be assessed against the appellee/defendant Nursery for unauthorized removal of palm trees from land owned by the appellant/plaintiff Fiske.

On August 10, 1972, Mrs. Moczik sold the appellee Nursery some palm trees growing on land where she lived. The contract price was $50 per tree; however, the contract did not specify any date for their removal. In fact, the property was owned by a partnership in which Mrs. Moczik was a limited partner and there were recorded documents which evidenced that she was without authority to sell any of the partnership’s real estate. On September 19, 1972, the partnership contracted to sell a portion of the land to the plaintiff Fiske who closed his purchase on August 20, 1973. While there is some conflict as to exactly when the trees were removed, Fiske claimed and there is evidence from which the court found a total of 55 trees were taken from Fiske’s property after he bought the land. Fiske sued the Nursery for damages and the Nursery, in turn, brought Mrs. Moczik in as a third party defendant. She then counterclaimed against the Nursery for its failure to promptly remove the trees.

The trial court, sitting as a trier of fact, found that Mrs. Moczik had no legal authority to sell the trees and on the issue of damages held:

“7. Testimony in the case failed to establish by competent evidence that the land was depreciated in value by the removal of the trees. Ragaland, (sic) vs. Clarson, [Fla.App.] 259 So.2d 757. The only evidence at trial concerned value predicated on replacement value of coconut palm trees. The measure of damage if any, is the deprivation of convenience and comfort in the use and enjoyment of the property.
8. That Florida Statute 821.221, second paragraph, is applicable to the case at hand because Palms Nursery & Landscaping Company, Inc. had probable cause to believe the entry was lawful.
9. Fiske is awarded compensatory damages in the sum of $1,500.00 and is under Florida Statute 821.221, awarded an additional $1,500.00 making a sum total of $3,000.00.”

We affirm the trial judge’s findings that the defendant Moczik had no authority to sell and the defendant Nursery was without authority to remove 55 palm trees from the plaintiff’s land. However, we reverse as to his determination of compensatory damages and his finding that double damages were recoverable pursuant to Fla.Stat. § 821.221, supra.

Generally, it has been held that the measure of damages for removal of ornamental trees is the difference in value of the property immediately before and after the taking. Watson v. Jones, 1948, 160 Fla. 819, 36 So.2d 788; National Rating Bureau v. Florida Power Corp., Fla.1956, 94 So.2d 809; Elowsky v. Gulf Power Co., Fla.App.lst 1965, 172 So.2d 643; Annot., 69 A.L.R.2d 1335, 1366 (1960). In addition, where reduction in market value is an inadequate measure of damages, these cases hold the court may also allow recovery for loss of personal value to the owner.

Some authorities even suggest that the proper measure of damages is to look directly to the value of the trees themselves. Thus, it has been held that if property on the land is injured or destroyed, the measure of damages is the value of the property injured or destroyed. Atlantic Coast Line R. Co. v. Saffold, 1938, 130 Fla. 598, 178 So. 288. One case suggests that the measure of damages for removal of trees depends on the cause of action, with the damages for trespass being the decrease in the market value of the land, and the damages for conversion being the value of the trees. Nilsson v. Hiscox, Fla.App.lst 1963, 158 So.2d 799. Still another authority suggests the measure of damages depends upon whether the thing destroyed has a value independent of the realty on which it stands or grows. 9A Fla.Jur., Damages, §§ 67, 70 (1972). See Dowling Lumber Co. v. King, 1912, 62 Fla. 151, 57 So. 337.

Ragland v. Clarson, Fla.App.1st 1972, 259 So.2d 757, on which the trial judge predicated his ruling on damages, involved a claim against a surveyor who in the course of surveying Ragland’s lands, had cut plants and trees in an open field. There, the plaintiff contended he was entitled to introduce evidence as to the “replacement” value of the plants and trees which had been destroyed. The First District disagreed with the plaintiff, but did approve that part of the trial judge’s instructions allowing recovery for deprivation of the convenience and comfort in the use of the plaintiff’s land, even though such destruction did not generally diminish the market value of the land. We do not quarrel with the opinion in Ragland as relates to the facts there. But, there is a significant difference between one cutting down plants in an open field and removing valuable palm trees from an owner’s land. The latter will certainly cause a decrease in' market value of the land, and to hold that the owner can recover only for loss of comfort and convenience, and not for the value of the trees would allow one to profit by conversion of trees with the land owner entitled to only a minimal award of damages. Hence, reliance on Ragland was error.

Regardless of whether the damages here are computed by loss of value of the land, as held in Watson, or by the value of the trees themselves, as suggested by other authorities, the proper measure of Fiske’s recovery against the Nursery ought to be at least the reasonable cost of replacing the trees which the Nursery removed from his property since replacement in kind is feasible.

The only expert testimony in this case was that of a real estate broker who testified that the loss of market value of the property was the value of the trees. This testimony reflected a common sense approach and was never contradicted by appellees. And the fact that escalating land values allowed Fiske to sell a portion of the land for a substantial profit some time after the removal was of little probative value, since the measure of damages is the difference in value immediately before and after the removal of the trees. The uncontradicted testimony of the broker established that the replacement value of the trees was the controlling factor and evidence revealed the retail replacement cost of like trees to be between $125 and $300 per tree. The minimum verdict for the plaintiff Fiske should have been 55 X $125 or $6,975, although we recognize the evidence before the trial court would have sustained a judgment up to $15,750, or even higher if the court accepted the plaintiff’s own testimony on value.

The evidence further revealed Mrs. Moczik responded to a newspaper advertisement placed by the defendant Nursery which was seeking to purchase palm trees. Mrs. Moczik was in actual possession of the land from which she contracted to sell the trees to the Nursery. And, while it is true that recorded legal documents gave constructive notice that she had no right to sell, we think Fla.Stat. § 821.221 was intended to create a penalty against trespassers who wrongfully enter upon another’s land and that it has no applicability to a situation where, as here, the Nursery in good faith purchased trees from one in possession of the property where the trees were growing. Certainly Mrs. Moczik, being a co-owner of the property, would not be amenable to double damages under this statute if she had removed the trees herself. The statute, being punitive in nature, must be strictly construed. Lollie v. General American Tank Storage Terminals, 1948, 160 Fla. 208, 34 So.2d 306. It is obviously designed to penalize an intentional wrongdoer and should not be directed against legitimate businesses dealing with parties in actual possession, even though they imprudently failed to check the legal records concerning the right of such possesser to sell trees from the lands they occupy.

The defendant Nursery is entitled to the benefit of the good faith bargain it made with Mrs. Moczik to buy the trees for $50 per tree. Therefore, as a third party defendant, she may be held liable to the defendant Nursery for any sums, in excess of that amount, it may be forced to pay the plaintiff. In view of the court’s holding that Mrs. Moczik had no authority to sell, her counterclaim that the Nursery failed to promptly remove the trees does not present any viable issue.

We affirm the trial judge’s findings that the defendant Mrs. Moczik was without authority to sell the trees and that the defendant Nursery removed 55 trees from the plaintiff Fiske’s land without proper authority. We reverse on the issue of damages and remand to the trial court with directions to hold a new trial to hear evidence as to the replacement cost of the trees removed from the plaintiff’s property and to render judgment accordingly for Fiske, and to assess against Mrs. Moczik damages the defendant Nursery incurs over and above the price of them in the contract between her and the Nursery.

McNULTY, C. J., and BOARDMAN, J., concur.

      . Fla.Stat. § 821.221 (1973), repealed, Ch. 74-383, § 66, effective July 1, 1975, provided: “Whoever wrongfully enters upon, or causes to be entered upon the land or lands of another and severs, cuts, chips, saws, chops, scrapes, turpentines, girdles, kills or otherwise damages or removes any timber, tree, or forest products, standing, lying or growing upon said land, without the consent of the legal owner, shall be liable to the owner in an action at law for damages in an amount equal to three times the sum which would compensate the owner for the actual damage suffered by the lawful owner.
      Provided, however, that where the wrongful entry was involuntary, or the defendant in an action brought under this act had probable cause to believe that the entry upon such land was lawful, then the measure of damages shall be two times the sum which would compensate the owner for the actual damage suffered by the lawful owner. . . . ”


text:
    Lee BAKER, Appellant, v. The STATE of Florida, Appellee.
    No. 74-688.
    District Court of Appeal of Florida, Third District.
    March 29, 1976.
    Phillip A. Hubbart, Public Defender, and Steven Rappaport, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on December 17, 1974 reversing the sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed January 14, 1976 (327 So.2d 27), quashed this court’s judgment and remanded the cause with directions;

NOW, THEREFORE, It is Ordered that the judgment of this court filed December 17, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the sentence of the Circuit Court herein sought to be reviewed is reinstated and affirmed in accordance with the opinion of the Supreme Court of Florida in State v. Jones, 327 So.2d 18, Fla.1976. Costs allowed shall be taxed in the trial court (Rule 3.16, subd. b, F.A.R.).


text:
    D. A. B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1015.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Phillip A. Hubbart, Public Defender, and Roy S. Wood, Jr., Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for ap-pellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.,
   PER CURIAM.

Appellant D.A.B., 17 years of age, in a petition for delinquency, was charged with 7 counts, including sexual battery, assault, robbery, and sexual battery with use of a deadly weapon. Subsequent thereto, the State moved the juvenile division of the circuit court for an order waiving its jurisdiction and certifying the case for trial as if D.A.B. were an adult. The juvenile court, after hearing, entered its order transferring jurisdiction of the case to the criminal division of the circuit court. It is from this order that D.A.B. takes his appeal.

The sole question raised by D.A.B. is whether or not he was deprived of his right to confront and cross-examine the court appointed psychiatrist whose report was read by the trial judge and argued by the prosecutor at the waiver hearing.

Section 39.09(2) (e), Fla.Stat., in part states:

“The child or his parents, guardians, or counsel shall have the right to examine these reports and to question the parties responsible for them at the hearing.”

Rule 8.110(b)(5), RJP, states:

“At this state of the hearing, the Court may accept in evidence social histories, and psychological and psychiatric reports, but the child and his counsel shall be entitled to examine such reports and, upon demand, to question the parties responsible for them.”

At the waiver hearing, the prosecutor requested the court to consider the report of the court appointed psychiatrist which was in the court file. The court inquired of counsel for D.A.B. if he objected, and counsel replied that the trial court had a right and was free to read it and “take it for its weight but not to be admitted as an exhibit. If such were the case I would ask the doctor to be brought before the court.” The court read the report but did not specifically admit the report as an exhibit although he did permit a portion of it to be read to him at closing argument.

We are of the opinion that when counsel for the appellant, D.A.B., advised the trial judge to read the report and “take it for its weight,” without cross examination, this was tantamount to a waiver of D.A.B.’s right of confrontation and cross examination of the psychiatrist. Under the circumstances as presented, the trial judge was under no duty to require the presence of the psychiatrist and the record is devoid of counsel’s demand to have him present. Appellant had the right under § 39.09 (2)(e), Fla.Stat., and Rule 8.110(b)(5), RJP, to examine the report prior to trial and call the psychiatrist as a witness if he so desired.

Accordingly, the order is affirmed.


text:
    Johnny Lee GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 74-874.
    District Court of Appeal of Florida, Third District.
    March 29, 1976.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on February 18, 1975 (310 So.2d 373) reversing the sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed January 14, 1976 (327 So.2d 28) and mandate now lodged in this court, quashed this court’s judgment and remanded the cause with directions;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on April 16, 1975 is withdrawn, the judgment of this court filed February 18, 1975 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the sentence of the Circuit Court herein sought to be reviewed is reinstated and affirmed in accordance with the opinion of the Supreme Court of Florida in State v. Jones, 327 So.2d 18, Fla.1976. Costs allowed shall be taxed in the trial court (Rule 3.16, subd. b, F.A.R.).


text:
    O. Ray WOOD, d/b/a Coastal Electrical Supply Company, et al., Appellants, v. BAY COUNTY et al., Appellees.
    No. Y-440.
    District Court of Appeal of Florida, First District.
    March 30, 1976.
    Scott R. Nabors of Staats & Nabors, Panama City, for appellants.
    Les W. Burke, Panama City, for appel-lees.
   PER CURIAM.

Affirmed. See William A. Berbusse, Jr., Inc. v. North Broward Hospital District, Fla.App.2nd, 117 So.2d 550 (1960).

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


text:
    Tommy CUMMINGS, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1172.
    District Court of Appeal of Florida, Third District.
    March 29, 1976.
    Phillip A. Hubbart, Public Defender, and Steven Rappaport, Asst. Public Defender, for appellant.
    Robert L. Shevm, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for ap-pellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on February 18, 1975 (310 So.2d 374) reversing the sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed January 14, 1976 (327 So.2d 28) and mandate now lodged in this court, quashed this court’s judgment and remanded the cause with directions;

NOW THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on March 26, 1975 is withdrawn, the judgment of this court filed February 18, 1975 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the sentence of the Circuit Court herein sought to be reviewed is reinstated and affirmed in accordance with the opinion of the Supreme Court of Florida in State v. Jones, 327 So.2d 18, Fla. 1976. Costs allowed shall be taxed in the trial court (Rule 3.16, subd. b, F.A.R.).


author: MILLS, Judge. BOYER, Chief Judge

text:
    Lewis Paul HYATT, Jr., Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-403.
    District Court of Appeal of Florida, First District.
    March 19, 1976.
    Rehearing Denied April 16, 1976.
    W. J. Sheppard of Sheppard, Fletcher, Hand & Adams, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

The defendant appeals from a judgment of guilt and sentence to prison which were entered after a plea of nolo contendere was made to a charge of possession of marijuana in excess of five grams, reserving the right to appeal the denial of his motion to suppress evidence.

The issue for our determination, is whether the trial court erred in its denial of the motion to suppress.

Lyons, a special agent with the United States Drug Enforcement Administration in Tucson, Arizona, obtained information from a confidential informant indicating that an individual wearing a red coat would leave Arizona by airplane bound for Jacksonville, Florida, and would be carrying controlled drugs. Lyons gave this information to Hendricks, a special agent with the Drug Enforcement Administration office in Jacksonville, Florida, by telephone. A few hours later in the day, Lyons talked by telephone to Mapes, another special agent with the Drug Enforcement Administration office in Jacksonville, Florida, and gave him more information. In addition, Lyons informed Mapes that the informant from whom he obtained the information was very reliable. However, he gave no circumstances to support his statement.

Mapes went to the Jacksonville International Airport where he began surveillance of the defendant. Subsequently, and based solely on the information furnished him by Lyons, but without a warrant, Mapes searched the automobile occupied by the defendant, arrested the defendant, and seized the controlled drugs. It was these drugs which defendant sought unsuccessfully to suppress.

All of the information possessed by Mapes was double hearsay and amounted to no more than a tip. There was neither probable cause nor trustworthy information to justify the action taken by Mapes. Sagonias v. State, 89 So.2d 252 (Fla.1956).

The trial court erred in its denial of the motion to suppress. Therefore, we must reverse the judgment and sentence.

McCORD, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissents).

I respectfully dissent. The totality of the factual situation sub judice is very similar to that found in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which in my view is controlling. I would affirm.


author: MILLS, Judge.

text:
    Lester WALKER, Appellant (Counterplaintiff), v. Donald HILLIARD, d/b/a Trenton Farm Equipment, Appellee (Counterdefendant).
    No. Y-146.
    District Court of Appeal of Florida, First District.
    March 23, 1976.

      Jerry M. Blair of Airth, Sellers, Lewis, Cherry & Blair, Live Oak, for appellant.
    John F. Roscow, III, and William D. Pridgeon of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon & Langdon, Gainsville, for appellee.
   MILLS, Judge.

Hilliard sold Walker a used tractor. The tractor was damaged by a flood and Walker returned it to Hilliard for repairs. While in Hilliard’s possession, it was determined that the tractor was stolen. The rightful owner claimed it. The insurance company of Walker paid him for the damage to the tractor. Walker sued Hilliard for breach of warranty of title. The trial court awarded damages to Walker, but reduced the damages by the amount of the insurance proceeds paid to Walker.

Walker appeals from the final judgment entered by the trial court. He contends that the trial court erred in reducing the damages awarded to him in his contract action by the amount of insurance proceeds paid to him. We agree.

In tort actions, it is well settled that the recovery of damages by the owner of property from the party who damaged the property may not be reduced by the amount of insurance proceeds received by the owner from his insurance company. 81 A.L.R. 320. Although the courts are somewhat divided on whether this rule applies in contract actions (81 A.L.R. 320), we are of the opinion that it should be applied. To hold otherwise would permit a wrongdoer to benefit from a policy of insurance when there is no privity between him and the insurance company, and the policy was written for the benefit of the insured, not for the wrongdoer. If there must be a windfall, it is more just that the injured party profit, rather than the wrongdoer be relieved of full responsibility for his wrongdoing.

In Allstate Mortgage Corporation v. Alpha Motors, Inc., 294 So.2d 100 (Fla.App. 3rd, 1974), a mortgage foreclosure action, the court stated that the receipt of insurance money by a lessor for loss of its leased personal property by fire would not reduce the lessee’s obligation under the lease.

Reversed and remanded for further proceedings consistent with this opinion.

BOYER, C. J., and SACK, MARTIN, Associate Judge, concur.


author: SMITH, Judge.

text:
    JONTON, INC., a Florida Corporation, Appellant, v. FIDELITY MORTGAGE INVESTORS, a Massachusetts Business Trust, Appellee.
    No. Z-242.
    District Court of Appeal of Florida, First District.
    March 30, 1976.

      Clyde M. Taylor, Jr., Taylor, Brion, Bu-ker & Greene, Tallahassee, for appellant.
    Walter J. Smith, Smith, Grimsley, Barron & Remington, Ft. Walton Beach, for appellee.
   SMITH, Judge.

This plenary appeal was taken from an order denying the judgment debt- or’s motion to set aside a sale carried out by the clerk pursuant to a final judgment of foreclosure. While we do not have jurisdiction of a plenary appeal from an order not final, we may and do entertain the case as an interlocutory appeal. Rules 3.2 and 4.2, F.A.R.; Rosen v. Hunter, 224 So.2d 371 (Fla.App. 3rd, 1969); Crepaldi v. Wagner, 128 So.2d 759 (Fla.App. 1st, 1961).

Appellant attacks the sale, admittedly conducted during hours prescribed by the court, because the clerk failed to delay until the imminent arrival of a prospective bidder arranged for by appellant. The judgment creditor successfully bid an amount less than the amount of the judgment. There is no evidence the clerk agreed to delay the sale or of any other circumstances invalidating the sale. We need not and do not anticipate the merits of any prospective application by appellee for a deficiency judgment, nor of appellant’s potential defenses.

AFFIRMED.

BOYER, C. J., and COX, JOHN S., Associate Judge, concur.


text:
    Gary M. PICCIRRILLO, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. X-256.
    District Court of Appeal of Florida, First District.
    March 30, 1976.

      Richard W. Ervin, III, Public Defender, David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Gerry B. Rose, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

The defendant was charged with breaking and entering with intent to commit a misdemeanor. The jury found him guilty of attempted breaking and entering. He appeals from the judgment of conviction and sentence to the state prison.

Although a number of issues are raised by this appeal, the issue which is determinative is whether the trial court erred in refusing to allow the defendant to make a proffer of testimony which the court had ruled was inadmissible.

During direct examination of the defendant’s wife by his attorney, the State objected to a question which sought the reason one of the arresting officers had stopped the wife several days before the alleged offense. Although the grounds for the objection were not stated, the court sustained the objection. The defendant then requested the court to permit him to make a proffer of the testimony. The court refused to permit the proffer.

This was error. A trial court should not refuse to allow a proffer of testimony. This is necessary to insure full and effective appellate review. Francis v. State, 308 So.2d 174 (Fla.App. 1st, 1975). We are compelled to reverse.

We have considered the other issues raised by the defendant, but under the facts in this case and the law applicable thereto, have not discussed them, because they do not involve error.

Reversed and remanded for a new trial.

BOYER, C. J., and SACK, MARTIN, Associate Judge, concur.


author: PER CURIAM. PEARSON, Judge

text:
    Reverend Penelope PETERSON, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, and R. F. Cook, Director of the Metropolitan Dade County Building and Zoning Department, Appellees.
    No. 75-527.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.

      Joel Hirschhorn, Miami, for appellant.
    Stuart Simon, County Atty., and Stanley B. Price, Asst. County Atty., Miami for appellees.
    Before PEARSON, HAVERFIELD and-NATHAN, JJ.
   PER CURIAM.

Plaintiff appeals an order dismissing her complaint without prejudice in her action to enjoin Dade County from enforcing a zoning ordinance.

Plaintiff, Reverend Penelope Peterson, is the owner of two adjacent parcels of land which formerly were zoned RU-3 (permitting a two-story four-unit apartment house). On October 21, 1974 defendant, Dade County, by enacting resolution no. Z-297-74 rezoned the subject property to RU-1 (single family). On January 8, 1975, 78 days after the passage of the resolution, plaintiff filed a complaint in circuit court and prayed that the zoning resolution be declared void as applied to her property and Dade County be restrained from the enforcement of the resolution. Dade County filed a motion to dismiss on the grounds that certiorari is the only proper remedy for review of the zoning resolution under attack and plaintiff failed to comply with § 33-316, Code of Metropolitan Dade County, which sets forth a 30 day review period. The trial judge entered an order dismissing the complaint and granting plaintiff 20 days to file an amended complaint. We affirm.

It is now well established that where a landowner seeks review of a zoning resolution of a county commission, the proper method is by filing a petition for writ of certiorari except where the landowner presents a general challenge to .the validity of the zoning resolution. See Metropolitan Dade County v. Greenlee, Fla.App.1968, 213 So.2d 485 and cases cited therein.

Plaintiff is challenging the zoning resolution solely on the ground that it is invalid only as applied to her property and does not allege it is generally invalid. Thus, we conclude that the prescribed method of review was by certiorari and find that the trial judge correctly granted defendant’s motion to dismiss.

Affirmed.

PEARSON, Judge

(dissenting).

I respectfully dissent upon two grounds. First, I would hold that the complaint which alleged:

******
“11. The present zoning imposed on Plaintiff’s property does not bear ■ any substantial relationship to public health, safety, morals, and welfare of the community; and said restrictive zoning is not necessary for public health, safety, morals or welfare.
“12. The application of Resolution No. Z-297-74 to the Plaintiff is a deprivation of Plaintiff’s property without due process of law and in violation of the Constitution of the United States of America and of the State of Florida.
“13. The application of Resolution No. Z-297-74 to the Plaintiff is discriminating and a denial of equal protection of the law as guaranteed by the Constitution of the United States of America.”
******

is sufficient to constitute “a general challenge to the validity of the zoning ordinance.” Metropolitan Dade County v. Greenlee, Fla.App.1968, 213 So.2d 485. Second, the application of FAR 4.5c(l) to a claim of the unconstitutional deprivation of property, thereby limiting the right of action to thirty days from the date of the governmental action, cannot be held to be due process.


text:
    GENERAL CARE CORP., Appellant, v. Art FOREHAND, etc., et al., Appellees. STATE of Florida ex rel. CAPITAL MEDICAL CENTER, INC., et al., Appellants, v. Art FOREHAND, etc., Appellee.
    Nos. Y-489, Y-532.
    District Court of Appeal of Florida, First District
    Feb. 20, 1976.
    On Rehearing April 5, 1976.

      Appeal from Circuit Court, Leon County; Victor M. Cawthon, Judge.
    Joseph C. Jacobs and Robert J. Angerer of Ervin, Vam, Jacobs & Odom, Tallahassee, for appellant General Care Corp.
    Carl R. Pennington, Jr., Davisson F. Dunlap, Jr., and Dewey M. Johnson, Pennington, Wilkinson & Sauls, Tallahassee, for appellant Capital Medical Center.
    Douglas E. Whitney, Tallahassee, for appellee.
   PER CURIAM.

We have considered the records, briefs and oral arguments of counsel in the above two consolidated appeals and find no reversible error. The final judgment of the trial court is therefore affirmed.

BOYER, C. J., McCORD, J., and LEE, THOMAS E., Associate Judge, concur.

ON PETITION FOR REHEARING GRANTED

Upon consideration of the petition of Capital Medical Center, Inc., for rehearing, we have reviewed the record and briefs and have concluded that the cause (our Case No. Y-532; Circuit Court Case No. 74-1606) should be remanded to the trial court for further proceedings.

Appellant, Capital Medical Center, Inc., proceeding under Chapter 381, Florida Statutes, was denied a certificate of need to construct a hospital by the Bureau of Community Medical Facilities of the Department of Health and Rehabilitative Services and sought review of such denial by petition for mandamus filed in the court below. Appellant had previously sought direct review before this court under § 120.68, Florida Statutes, and we dismissed its petition as it had also filed the mandamus action covering the same subject matter. § 381.494(6) (f), Florida Statutes 1973, in effect at that time provided:

“Notwithstanding any provisions of chapter 120, at any time after the bureau has issued or denied a certificate of need, the applicant or the areawide counsel shall have the right to seek relief by a writ of mandamus.”

Capital Medical Center, pursuant to the above statute, had sought such review in the court below as previously stated. (The above statutory provision was amended out of Chapter 381 by the 1975 session of the legislature — Chapter 75-167, Laws of Florida.) In spite of the legislature having provided for such method of review, a writ of mandamus is not a proper action for review of the denial or grant of a certificate of need since such grant or denial involves an exercise of discretion by the Bureau.

General Care Corporation (a prior applicant for Certificate of Need whose appeal was consolidated with the appeal of Capital Medical Center, Inc.), upon denial of its application for certificate, did not seek direct review before this court but subsequently filed in the court below a petition for declaratory judgment.

Both appellants attacked in the court below the administrative procedures under which their applications for certificates of need were denied by the bureau. The circuit court denied relief to General Care ruling that “the question of whether the bureau abused its discretion is one best answered by administrative review which Capital has elected to seek and General has not” and “the other issues raised by General were also subject to administrative review and it did not seek this review within the statutory period.” The lower court was correct in denying relief to General Care on the ground stated.

The basis for the trial court’s denial of review to Capital Medical Center is not clear. It sought administrative review before this court under Chapter 120, Florida Statutes, within the statutory period but was denied such review because it had filed the proceeding in circuit court under Chapter 381, Florida Statutes, covering the same subject matter.

Upon reconsideration, we find that Capital Medical Center, Inc., should have a right to review, and since it was cut off by this court from direct administrative review as above stated (and we have lost jurisdiction of that case) and was also cut off from review by the circuit court apparently because it had sought direct review in this court, we conclude that it should have the right to such review in the circuit court but by way of declaratory judgment rather than the inappropriate remedy of mandamus.

§ 120.73, Florida Statutes (the Administrative Act) provides in part as follows:

“Nothing in this chapter shall be construed to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of Chapter 86. . . . ”

In consideration thereof, Circuit Court Case No. 74-1606 is reversed and remanded with directions to allow Capital Medical Center, Inc., to amend its action to a petition for review by way of declaratory judgment and with further directions to review by such proceeding the merits of the Bureau’s denial of its application for Certificate of Need.

BOYER, C. J., McCORD, J., and LEE, THOMAS E., Associate Judge, concur.


text:
    LaVerne COLEMAN, in behalf of Rex House v. Dr. W. L. JAQUITH.
    No. 49139.
    Supreme Court of Mississippi.
    March 30, 1976.
    Rehearing Denied April 13, 1976.
    Barry H. Powell, David Seth Michaels, Alfred J. Chiplin, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Vera Ma-del Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Chancery Court, Lee County ; George F. Adams, Chancellor.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


author: WALKER, Justice, for the Court:

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Billy Linn TALLEY et al.
    No. 48561.
    Supreme Court of Mississippi.
    March 30, 1976.
    Sharp & Fisher, Corinth, for appellant.

      Smith, Downs, Coleman & Ross, Price & Krohn, Joe B. Mitchell, Corinth, for ap-pellees.
    Before INZER, SUGG and WALKER, JJ-
   WALKER, Justice, for the Court:

This is an appeal from the Chancery-Court of Alcorn County, Mississippi, which found for individual complainants in four suits combined for trial, and which involved Mississippi’s uninsured motorist statutes. We affirm.

A summary of the pertinent facts shows that a collision occurred in Alcorn County, Mississippi, on September 14, 1968, between an automobile operated by Flora Mae Humes and an automobile operated by William Carroll Mills. Julian W. McLeod, Billy Linn Talley, and Eddie M. Talley were passengers in the Mills’ vehicle at the time of the collision.

The Mills’ vehicle was covered by a policy of insurance including, inter alia, liability coverage and uninsured motorist coverage written by State Farm, and the Humes’ vehicle was covered at the time of the collision by a liability policy written by Wabash Fire & Casualty Insurance Company.

On November 20, 1969, separate suits were instituted by McLeod, Billy Linn Talley and Eddie M. Talley against Mills (the guests’ driver) and Humes. All causes were brought in the Circuit Court of Al-corn County.

Wabash undertook the defense of Humes under the liability provisions of its policy.

After filing a motion to quash process and a separate answer to the declarations, the attorney engaged by Wabash to defend Humes was permitted by the court to withdraw from the case. Wabash did not furnish additional counsel for Humes. Default judgments on writs of inquiry were entered by the Circuit Court of Alcorn County on February 4, 1971, against Flora Mae Humes in favor of Mills ($20,000.00); on May 12, 1971, for McLeod ($8,500.00); on May 13, 1971, for Billy Linn Talley ($13,887.81) and Eddie M. Talley for ($7,-000.00).

In June and July, 1971, McLeod, Billy Linn Talley and Eddie M. Talley instituted suits in the Chancery Court of Alcorn County respectively against the uninsured motorist carrier of their family owned vehicles, (State Farm for McLeod and Employers Fire Insurance Company for the Talleys). Mills subsequently transferred his cause to the chancery court under similar allegations and all four cases were consolidated for trial.

The chancellor found, as matters of fact on a trial de novo, that each appellee sustained extensive and serious injuries exceeding $10,000.00 as a result of the accident; that Wabash by its actions did effectively deny coverage; that Wabash did hot properly defend the suit; and, that Flora Mae Humes was an uninsured motorist within the meaning of Mississippi Code 1942 Annotated section 8285-52 (1956). A decree was entered in favor of appellees.

On motion to this Court, Employers was dismissed and a partial satisfaction was entered upon payment to the Talleys of the full amount of the judgment entered against Employers.

The only issue raised on this appeal is whether Flora Mae Humes was an uninsured motorist within the meaning of Mississippi’s uninsured motorist statute or the provisions of the contract of insurance issued by State Farm.

Mississippi Code 1942 Annotated section 8285-52 defines an uninsured motorist vehicle as a motor vehicle “ . . . as to which ... (2) there is such insurance in existence but the insurance company writing the same has legally denied coverage thereunder, ...”

However, the provision of State Farm’s policy which defines an uninsured automobile omits the word “legally” and states as follows:

Uninsured Automobile — means :
(1) A land motor vehicle with respect to the ownership, ... or use of which there is ... no bodily injury liability bond or insurance policy applicable at the time of the accident . . . or there is such applicable bond or insurance policy, but the company writing the same denies that there is any coverage thereunder. . . . ” (Emphasis added).

The appellant has addressed itself in its brief to what is meant by the statutory wording “ . . . but the insurance company writing the same has legally denied coverage . . . .” (Emphasis added).

However, if there is any distinction between the statutory wording “has legally denied coverage” and the provision of the policy which reads “ . . . but the company writing the same denies that there is any coverage thereunder,” it is not necessary that we address ourselves to that point since the language of the policy does not violate minimum requirements.

In Talbot v. State Farm Mutual Automobile Insurance Company, 291 So.2d 699, 701 (Miss.1974), this Court said:

The statute requires the uninsured motorist coverage “to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury. . . . from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law. . . . ” Miss.Code Ann. § 83-11-101 (1972). There is no requirement that the coverage shall be more than the minimum thus stated. As to any policy which grants the coverage required by the aforesaid Act, any “excess or additional coverage shall not be subject to the provisions of this article.” Miss.Code Ann. § 83-11-111 (1972). The coverage Insured contends for in this case is excess or additional to that required by the statute and by the express terms of the statute is not subject to its provisions. It follows that the parties to this suit were free to contract as to uninsured motorist coverage in any respect so long as the required coverage is not cut down by the policy provisions. See Harthcock v. State Farm Mutual Automobile Insurance Co., 248 So.2d 456 (Miss.1971). If State Farm and Insured could contract free of statutory restraint as to excess coverage, they could also contract to limit the coverage to that required by statute. (Emphasis added).

The provision of State Farm’s policy with respect to what constitutes an uninsured automobile does not diminish the coverage required by statute. Therefore, we need only to look to the terms of the contract of insurance to determine whether Flora Mae Humes was an uninsured motorist.

As stated earlier, the complainants’ policies with State Farm defined an uninsured automobile as “ . . .or there is such applicable . . . insurance policy, but the company writing the same denies that there is any coverage thereunder. ...” (Emphasis added).

This narrows the question to be decided to whether the withdrawal of the attorney representing Flora Mae Humes from the case, and Wabash’s failure to provide Humes with further representation as it was required to do under the policy, constituted a denial by Wabash that there was any coverage under its policy with Flora Mae Humes.

We are of the opinion that it did.

In A. Widiss, A Guide to Uninsured Motorist Coverage, section 2.32 (1969), the author discusses the history and scope of uninsured motorist coverage:

The first version of the uninsured motorist endorsement provided that the term “uninsured automobile” meant an automobile with respect to the ownership, maintenance, or use of which “there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile.” . . . Under the terms of the typical automobile liability insurance policy, there are several reasons why a company may have a justifiable basis for denying liability to one of its insureds, following an accident. As a consequence, it is quite possible for a situation to arise where a tortfeasor has insurance in existence at the time of the accident, but where his company thereafter denies coverage so that the tortfeasor is in effect financially irresponsible with respect to claims against him following such an accident. In this situation, if the uninsured motorist endorsement is construed literally, no coverage exists. There have been numerous litigations over whether, in such a case, this literal construction controls, or whether the endorsement is rather to be construed so as to provide coverage.
When the issue was first raised — in the New York courts — it was held that even though an offending driver’s coverage was unavailable because his insurer denied liability following the accident, the fact remains that the automobile was insured at the time of the accident, and that therefore there was no question that under the endorsement terms the coverage was not applicable. However, the impact of a denial of liability by the tortfeasor’s insurer is obviously the same in its effect upon the injured parties as the complete absence of insurance would be. By 1963 several states had adopted statutory provisions requiring that the uninsured motorist endorsement must provide indemnification in instances involving a denial of coverage by an offending motorist’s liability carrier. That same year, when the second revision of the standard endorsement was issued by the joint committee, a phrase was added to the definition of an uninsured automobile:
An automobile . . . with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of accident, but the company writing the same denies coverage thereunder. (Emphasis added). [This is identical to the provision in State Farm’s policy covering the Tal-leys] .
This addition eliminated the problem in its initial guise, but created several new questions with respect to the character of the relationship between the tortfeasor and his insurer.
Validity of the Disclaimer. For example, uninsured motorist underwriters have argued that the uninsured motorist coverage ought not apply in given cases because the disclaimer of coverage by the tortfeasor’s insurance company “was false and was tendered in bad faith.” In general, courts have held that the denial of coverage by the tortfeasor’s insurer is sufficient in and of itself to give rise to coverage — that is, the insured claiming under the uninsured motorist coverage does not have the burden of establishing that the denial is bona fide. Similarly, in one case, the appearance of an insurance company on behalf of a tort-feasor, under a full reservation of rights, was held not to alter the status of the motor vehicle as uninsured — where the insurer asserted a conditional defense which it withdrew “upon the failure of the tortfeasor to appear at trial.” It should be remembered that if the tort-feasor’s insurance company does not have a justifiable basis for disclaiming lia bility, the insurance company which pays a claim to its insured under the uninsured motorist coverage may subsequently successfully assert its right of subro-gation against the company that has denied liability. (Emphasis added).

Failure of an insurer to defend a suit against its insured constitutes a denial of coverage in the most meaningful sense. In North River Insurance Co. v. Gibson, 244 S.C. 393, 397, 137 S.E.2d 264, 266 (1964), the Supreme Court of South Carolina quoted with approval State Farm Mutual Automobile Insurance Co. v. Brower, 204 Va. 887, 134 S.E.2d 277 (1964), where the Supreme Court of Virginia, when construing a provision of a policy similar to the one now before us, said:

“There is no apparent reason why the words in the phrase ‘denies coverage’ should not be given their natural and commonly understood meaning in the context in which they are used.
“An insurer denies coverage to its insured when it fails or refuses to accord him the protection it contracted to give. Here National has failed to give Mazza protection against the damages he has ‘become legally obligated to pay’ which National specifically promised to pay for him. Its failure to appear, to defend and to pay was a denial of coverage within the meaning of § 38.1-381 (c) (ii), and Mazza’s car was therefore ‘an uninsured motor vehicle.’ ”

In this case, when Wabash failed to provide additional counsel for Flora Mae Humes after initial counsel withdrew, the company’s actions spoke louder than words and constituted an effective and complete denial of coverage under its policy with Flora Mae Humes or that they owed her any duty whatsoever. This was sufficient to bring her within the definition of an uninsured motorist under the terms of State Farm’s policy with the complainants, which defined an uninsured automobile as being one on which there is an insurance policy, “but the company writing the same denies that there is any coverage thereunder. . . . ” (Emphasis added).

It is not necessary that we discuss whether Wabash was insolvent since the appellant has strongly argued throughout that Wabash was not insolvent, and the appel-lees conceded during oral arguments that there was no proof that Wabash was insolvent. Suffice it to say that our examination of the record does not reveal that Wabash was insolvent at the time of the accident nor within twelve months thereafter nor was it insolvent at the time of trial.

The judgment of the lower court on direct appeal is affirmed.

ON CROSS-APPEAL

On cross-appeal, it is only necessary that we point out that the chancellor erred in not allowing interest on the judgment from the date of the entry of the decree. Miss.Code Ann. § 75-17-7 (1972).

AFFIRMED ON DIRECT APPEAL AND ON CROSS-APPEAL DECREE IS MODIFIED TO INCLUDE INTEREST FROM DATE OF ENTRY.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


text:
    W. E. WRIGHT and Thelma Wright v. Paul MIZE and Henry Mize.
    No. 48595.
    Supreme Court of Mississippi.
    March 30, 1976.
    J. W. Kellum, Sumner, for appellants.
    Townsend, McWilliams & Holladay, Drew, for appellees.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

Before GILLESPIE, C. J., and SMITH and LEE, JJ.

Affirmed.