author: OVERTON, Justice.

text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Ercole CASTAGNA, Appellee.
    No. 52406.
    Supreme Court of Florida.
    Feb. 22, 1979.
    A. H. Toothmann and Patricia H. Thompson of Bradford, Williams, McKay, Kimb-rell, Hamann & Jennings, Miami, for appellant.
    Jerry Larotonda, Miami, for appellee.
   OVERTON, Justice.

This cause is before this Court on direct appeal from a summary final judgment of ■ the county court construing and expressly upholding the constitutional validity of Section 627.736(4)(d)(l), Florida Statutes (1975). We have jurisdiction.

The subject statute provides for personal injury protection benefits if an insured is injured “while occupying a motor vehicle, or while not an occupant of a motor vehicle,” if the injuries are “caused by physical contact with a motor vehicle.” The issue is whether the language of the statute requires a determination of causation. We hold that the words “caused by” plainly and unambiguously intend that traditional tort concepts of causation are to be considered part of the statute. While no actual physical contact must occur, the elements of causation concerning a motor vehicle as it is defined in the statute must be present.

The record in the instant case reflects that the appellant, Lumbermens Mutual Casualty Company, issued a policy of automobile insurance to the appellee effective August 5, 1975, through August 5, 1976. The policy coverage tracked the provisions of the Florida Automobile Reparations Reform Act (No Fault Act), Sections 627.-730-.741, Florida Statutes (1975). The ap-pellee was provided coverage for his personal injuries incurred either while occupying a motor vehicle, or if not occupying a motor vehicle, for injuries caused by physical contact with a motor vehicle. The policy and the No Fault Act specifically exclude from their coverage a pickup or panel truck used primarily for business or occupational purposes.

The accident resulting in the instant case occurred while appellee, Castagna, was driving his van which he used primarily in the course of his business. His van was struck by a lunch truck which had collided immediately beforehand with a Chevrolet passenger automobile. Castagna was injured in the collision. The Chevrolet is a “motor vehicle” within the statutory definition. The van and lunch truck are not.

The appellee, Castagna, sought personal injury protection (PIP) benefits under his insurance policy with Lumbermens. Lum-bermens denied coverage because the injuries were neither incurred “while occupying a motor vehicle” nor “caused by physical contact with a motor vehicle.”

The trial court entered partial summary judgment as to coverage for the appellee, Castagna, ruling that no actual physical contact between the van and the Chevrolet was necessary for PIP coverage under the insurance policy or the statute. The court further ruled that Section 627.736(4)(d)(l), Florida Statutes (1975), did not deny equal protection or due process of law.

Several Florida courts have construed Section 627.736(4)(d)(l), Florida Statutes (1975), of the No Fault Act to allow PIP benefits to an insured injured while riding in a commercial vehicle, if the commercial vehicle collides with a “motor vehicle,” State Farm Mutual Automobile Insurance Co. v. Butler, 340 So.2d 1185 (Fla. 4th DCA 1976); Negron v. Travelers Insurance Co., 282 So.2d 28 (Fla. 3d DCA 1973), but not if the collision is with another commercial vehicle. Camacho v. Allstate Insurance Co., 310 So.2d 330 (Fla. 3d DCA 1975).

The appellant, Lumbermens, contends that this case falls under the no-recovery rule of Camacho because the collision involved only commercial vehicles. The fact that one of the commercial vehicles had come into physical contact with a “motor vehicle” immediately prior to the collision is not considered by the appellant to be a factor.

We reject the judgment of the trial court that the contact between the lunch truck and the Chevrolet prior to the truck’s collision with the insured was sufficient to meet the “physical contact” requirement without regard to causation. This construction was predicated on an analogy with the hit-and-run provision discussed in State Farm Mutual Automobile Insurance Co. v. Spinola, 374 F.2d 873 (5th Cir. 1967). While we agree with the trial court that no actual physical contact with a motor vehicle is necessary, the conclusion reached by the trial court effectively reads the words “caused by” out of the statute.

The No Fault Act was intended to make an inquiry as to fault unnecessary, and the language of the statute in issue requires only that the plaintiff’s injuries be attributable to the physical contact with a “motor vehicle” as it is defined by the statute. The language of the legislature which expressly states that the insured’s injuries be “caused by physical contact with a motor vehicle,” requires, in our view, an inquiry regarding cause which employs the traditional tort concepts of causation. Consequently, in the instant case it must be determined whether the plaintiff’s injuries were “caused by physical contact” with the Chevrolet “motor vehicle.” Actual physical contact between the vehicles is not a prerequisite to recovery under the statute. The mere involvement of a “motor vehicle,” however, is not enough. Causation is the necessary link that connects plaintiff’s injuries to the physical contact and brings them within the statute.

The Third District Court of Appeal has reached the same conclusion in Royal Indemnity Co. v. Government Employees Insurance Co., 307 So.2d 458 (Fla. 3d DCA 1975). In that decision the Third District held that PIP benefits should be allowed a pedestrian against a motor vehicle which struck a parked vehicle, causing it to strike the pedestrian, even though there was no “physical contact” between the motor vehicle and the pedestrian, reasoning that the motor vehicle caused the injuries sustained. The court in construing the statute stated:

We note that the statute reads “. . . [I]f the injury is caused by physical contact with such motor vehicle
. .” This language is significant when applied to the factual setting in the case at bar.
While the no-fault law was intended to remedy the concept of fault in automobile negligence cases, we do not think that tort concepts of causation were intended to be entirely abandoned. We think that by inserting the word “caused” in the statute, the legislature plainly intended •that it would be a factor to be considered. Id., at 460.

The ruling of the Third District on this issue is consistent with our holding in the instant case.

The contention of the appellant that Section 627.736(4)(d)(l), Florida Statutes (1975), constitutes a denial of due process and equal protection under the constitutions of this state and of the United States is without merit. Similar arguments were raised and disposed of in our decision in Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974). The statute in question is related to a legitimate governmental interest and does not rest on any arbitrary or capricious classification.

For the reasons expressed, the portion of the summary judgment entered by the trial court in favor of the appellee, Castagna, is reversed and this cause is remanded for further proceedings in accordance with the views expressed in this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

      . Art. V, § 3(b)(1), Fla.Const.

      . (d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
      1. Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a motor vehicle or motorcycle if the injury is caused by physical contact with a motor vehicle. § 627.-736(4)(d)(I), Fla.Stat. (1975).

      . Section 627.732(1), Florida Statutes (1975), provides:
      “Motor vehicle” means a sedan, station wagon, or jeep-type vehicle not used as a public livery conveyance for passengers and includes any other four-wheel motor vehicle used as a utility automobile and a pickup or panel truck which is not used primarily in the occupation, profession, or business of the insured.
      The word “insured” has been held to refer only to insureds who are injured by physical contact with commercial vehicles, and not to owners of commercial vehicles. Heredia v. Allstate Ins. Co., 358 So.2d 1353 (Fla.1978).
      The definition of “motor vehicle” was changed by Ch. 78-374, § 2, Laws of Florida.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harry Robert OVERLY, Appellant, v. STATE of Florida, Appellee.
    No. 52918.
    Supreme Court of Florida.
    Feb. 22, 1979.
    Wm. J. Sheppard of the Law Offices of Wm. J. Sheppard, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Affirmed. State v. Rodriquez, 365 So.2d 157 (Fla.1978).

ENGLAND, C. J., and BOYD, OVER-TON and ALDERMAN, JJ., concur.

ADKINS, SUNDBERG and HATCHETT, JJ., dissent.


author: • ALDERMAN, Justice.

text:
    Lillian BENT, Appellant, Stuart BALLANTYNE, etc., et al., Appellees.
    No. 54786.
    Supreme Court of Florida.
    Feb. 22, 1979.

      C. Allen Watts, of Watts & Biernacki, DeLand, and John B. Crowther, Orange City, for appellant.
    Walter Butcka, New Smyrna Beach, for appellee.
    Jim Smith, Atty. Gen., and Sharyn L. Smith, Asst. Atty. Gen., Tallahassee, for intervenor.
   • ALDERMAN, Justice.

We have for review on direct appeal a final judgment in which the circuit court of Volusia County upheld the constitutionality of the Municipal Recall Law, section 100.361, Florida Statutes (1977), and found that the challenged municipal recall petition is legally sufficient. Without having to reach the constitutional question, we reverse because we find that the petition, even if its allegations are true, is not legally sufficient to require a recall election. We have jurisdiction even though we do not decide the constitutional question. P. C. Lissenden Co. v. Board of County Commissioners, 116 So.2d 632 (Fla.1959).

Appellant Lillian Bent is a duly elected commissioner of the City of New Smyrna Beach. Appellee Stuart Ballantyne is the designated chairman of an unincorporated group organized under section 100.361 for the purpose of recalling Bent from office. Ballantyne’s organization circulated a recall petition which charges Bent with “malfeasance, misfeasance and incompetency in office,” and alleges four specific grounds to support the chargé. The petition was then filed with the city clerk and thereafter submitted to the county supervisor of elections who determined that the petition contained the signatures required by section 100-361(l)(a). The city clerk then prepared and delivered to Ballantyne the counterpart petition prescribed by section 100.361(l)(f).

As the counterpart petition was being circulated, Bent filed an action in the circuit court, seeking declaratory relief and an injunction suspending the recall drive. The complaint alleged that the recall petition was unlawful because the grounds for removal stated in the petition, even if true, were insufficient as a matter of law to satisfy the statutory requirement of misfeasance, malfeasance, or incompetence. The complaint also challenged the constitutionality of section 100.361. Following a hearing, the circuit court entered a temporary injunction restraining the supervisor of elections from verifying the counterpart petition.

The circuit court subsequently entered final judgment against Bent. It expressly found section 100.361 to be constitutional and held that, even though only ground two of the four grounds contained in the petition sufficiently set forth facts, which, if true, would constitute a ground for removal, this ground was sufficient to sustain the petition. The ground which the circuit court found to be legally sufficient to allege acts of malfeasance was number two, which charged that Bent:

Interfered with the proper discharge of the duties of the City Manager, exercised powers individually which powers are vested only in the City Commission and acted unilaterally without the consent or action of the City Commission by giving orders to and making requests of city employees, some of whom were subordinates of the City Manager, in violation of city policy adopted July 26, 1977, in violation of the intent of the City Charter, and in violation of the legal authority relationship.

Based on its findings, the circuit court dissolved the temporary injunction previously entered and denied the relief sought by Bent.

The facts alleged in ground two of the recall petition are not sufficient to establish a prima facie charge of malfeasance. Florida’s recall statute is accusatory in nature and requires that a recall petition allege conduct by the public official which would constitute one of the seven grounds for removal listed in section lOO.SdClXb). The truth or falsity of a charge is ultimately for the electorate to decide and is not subject to judicial inquiry, but the mere recital of a statutory ground, without an allegation of conduct constituting that ground, is insufficient.

Malfeasance is defined as the commission of some act which is positively unlawful. BLACK’S LAW DICTIONARY 1109 (rev. 4th ed. 1968). Ground two alleges that the conduct described therein violated “city policy adopted July 26, 1977,” “the intent of the City Charter,” and “the legal authority relationship.” These allegations, even if true, do not constitute malfeasance because the conduct alleged is not prohibited under the laws of this state or the charter of New Smyrna Beach. The present ease is therefore distinguishable from Wolfson v. Work, 326 So.2d 90 (Fla. 2d DCA 1976), where it was alleged that a city official violated an express prohibition in the city charter.

Accordingly, the final judgment of the circuit court is reversed, and the cause is remanded for proceedings consistent with this opinion.

ADKINS, BOYD, OVERTON and HATCHETT, JJ., concur.

ENGLAND, C. J., and SUNDBERG, J., dissent.

      . Section 100.361(l)(b), Fla.Stat. (1977), provides:
      The grounds for removal of elected municipal officials shall, for the purposes of this act, be limited to the following:
      1. Malfeasance;
      2. Misfeasance;
      3. Neglect of duty;
      4. Drunkenness;
      5. Incompetence;
      6. Permanent inability to perform official duties; and
      7. Conviction of a felony involving moral turpitude.


text:
    THE FLORIDA BAR, Complainant, v. John L. HARTNETT, Respondent.
    No. 55153.
    Supreme Court of Florida.
    Feb. 22, 1979.
    Nicholas R. Friedman, Bar Counsel, Miami and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    No appearance for respondent.
   PER CURIAM.

On 21 October 1977, based on a petition filed by The Florida Bar, this Court temporarily suspended respondent, John L. Hart-nett, a member of The Florida Bar, pursuant to Florida Bar Integration Rule, article XI, Rule 11.10(5). Prior to that date a complaint had been filed by The Florida Bar alleging additional ethical misconduct by respondent. Upon stipulation of counsel the case was before the referee and therefore before us on the matters raised in the petition for temporary suspension as well as the complaint filed by the Bar in Case 11L76-17. The petition for suspension will thus be treated as a charging document. The referee’s report and record, including respondent’s guilty plea, were duly filed with this Court pursuant to Florida Bar Integration Rule, article XI, Rule 11.-06(9)(b). No petition for review has been filed.

The findings and recommendations of the referee are as follows:

Findings of Fact as to Each Item of Misconduct of Which the Respondent is Charged: After considering all the pleadings and evidence before me, pertinent portions of which are commented upon below, I find:
As to Case 52,538
On April 19, 1976, John L. Hartnett, was appointed personal representative of the Estate of Mary E. Smith, Case No. 76-1875 in the Eleventh Judicial Circuit Court in and for Dade County, Florida. The only known asset of the Estate was the proceeds of a real estate sale which consisted of approximately $10,000. When Mr. Hartnett signed the Oath of Personal Representative on April 16, 1976, he knew that this asset existed and that the heirs were William F. Smith and Dorothea McCaffrey of Troy, New York.
On April 21, 1976, John L. Hartnett received Court authorization to complete the sale of the real estate, and thereby complete the only outstanding transaction in this simple Estate. Despite the Court authorization and despite numerous requests from the heirs and the Court, Mr.
Hartnett failed to close the Estate and account for the proceeds of the Estate until August 4, 1977, when he mailed identical $4,843.44 checks to the heirs. These checks, drawn on account 33-121-5 at the Florida National Bank at Coral Gables, were described by Mr. Hartnett’s cover letter as being drawn on his “Trust Account.” In exchange for these checks, the heirs executed Receipt of Legatee forms sent by Mr. Hartnett.
The “Trust Account” checks of Mr. Hartnett to the heirs were dishonored for insufficient funds. The funds have not yet been properly accounted for or paid to the heirs, and the Estate has not been closed.
As to Case 11L76-17
Between October 1, 1975 and April 26, 1976, John L. Hartnett maintained Trust Account 441-1707 as his attorney’s trust account pursuant to Integration Rule 11.02(4) and DR9-102. Despite the fact that this was his Trust Account, respondent, John L. Hartnett, disbursed funds from the account for his own purposes without prior consent of the clients. Specifically, he engaged in a continuous series of transactions wherein he accepted for deposit checks from his brother, William Hartnett, and Hartnett family businesses, knowing that these checks would not clear, then exchanged his Trust Account checks for bank or cashier’s checks to the benefit of William Hartnett and Hartnett family businesses. As a result, John L. Hartnett used his clients’ trust monies until William Hartnett or the Hartnett family businesses were able to make good the dishonored checks. Therefore, John L. Hartnett’s Trust Account frequently reflected a bank balance less than the combined balance indicated by adding the balances of individual client ledger sheets. Despite the fact that the Trust Account could not be properly reconciled, John L. Hartnett withdrew additional monies from his Trust Account for his own benefit in December 1975.
Recommendation as to Whether or Not the Respondent Should Be Found Guilty:
As to each case, I make the following recommendations as to guilt or innocence:
As to Case 62,538
I recommend that the Respondent be found guilty and specifically that his conduct in the Estate of Mary E. Smith, Case 76-1875, violates DR6-101(A)(3) and DR7-101(A)(2) and (3) in that Mr. Hartnett neglected his clients, failed to carry out his oath and prejudiced the clients by failing to provide them the funds due. I further find that Mr. Hartnett has converted the trust funds of the Estate to his own use in violation of DR9-102 and Integration Rule 11.02(4).
As to Case 11L76-17
I recommend that the Respondent be found guilty and specifically that he commingled and misappropriated Trust Account funds in violation of Integration Rules 11.02(4) and 11.02(3)(a).
Recommendation as to Disciplinary Measures To Be Applied:
I recommend that the Respondent be suspended from the practice of law in Florida for two years and indefinitely thereafter until he shall have proven rehabilitation. Since he has already been temporarily suspended by the Supreme Court of Florida as of October 21, 1977, in Case 52,538, I recommend that his two year suspension begin as of that date. I further recommend that his proof of rehabilitation specifically include, but not be limited to, the following terms and conditions:
A. The Respondent will not commit any crimes or violate the Integration Rule or Code of Professional Responsibility of The Florida Bar.
B. The Respondent shall, not later than thirty days after approval of this Report by the Supreme Court of Florida, provide to the Clerk of the Supreme Court with a copy to Staff Counsel, an audit of all his law office accounts, trust or otherwise, by an independent accountant, and a similar audit of all accounts in which trust monies or other properties are kept. The Respondent shall also file a second audit by an independent accountant closing out these accounts and making proper disbursements of all trust funds and properties not later than ninety days after the first audit. (If all trust funds and properties are disbursed at the time of first audit, no further audit will be required.)
C. The Respondent shall, not later than thirty days after this Report is accepted by the Supreme Court of Florida, list all accounts, trust, business, or otherwise on which he has been authorized to sign checks or make withdrawals since January 1, 1975. Respondent shall also file this list with the Clerk of the Supreme Court with a copy to Staff Counsel not later than thirty days after this Report is approved by the Supreme Court of Florida.
D. Respondent shall, not later than ninety days after his first audit is filed, file with the Clerk of the Supreme Court, with a copy to Staff Counsel, an accounting by an independent accountant for the funds in the following matters:
1. Case No. 76-1875, the Estate of Mary E. Smith.
2. Cashier’s Check ' 323786,1 dated October. 9, 1975' for f $1,500.00, drawn by John L. I Hartnett on the Flagship National Bank of Coral Gables, payable to Lumbermens Mutual *, Insurance Company.
3. $35,938.24 received by John L. Hartnett and deposited in his Trust Account on October 16, 1975.
E. Respondent shall comply with the Notice provisions of Integration Rule 11.10(6).
F. The Respondent shall make restitution to William F. Smith & Dorothea McCaffrey of all funds found due and owing to them by the accounting in paragraph D.I., above, within 90 days after the accounting is filed. Respondent shall make restitution, as a condition of his proof of rehabilitation, of any other trust funds found due and owing pursuant to the audits and/or accountings set forth above.
G. Respondent shall embark upon a rehabilitation program for alcoholism, as an added condition of rehabilitation.

Having carefully reviewed the record, we find the allegations of the complaints to be proven by respondent’s admission and, therefore we approve the findings and recommendations of the referee.

Accordingly, respondent, John L. Hart-nett, is hereby suspended from the practice of law for a period of two years and indefinitely thereafter until he shall prove rehabilitation by complying in full with the terms and conditions set forth in the referee’s report which are incorporated herein by reference. The suspension shall be deemed to have begun as of 21 October 1977. In addition, respondent’s suspension shall continue for such further period until he shall pay the costs of this proceeding.

Costs in the amount of $1,216.29, found by the Court to have been reasonably incurred by The Florida Bar, are hereby taxed against the respondent.

It is so ordered.

BOYD, Acting C. J., and OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

      . On 2 November 1977, the date the referee’s report was filed, respondent pleaded guilty to the allegations set forth against him and agreed to the disciplinary measures recommended in the referee’s report. The guilty plea, however, does not extend to any violations of the Florida Statutes or sections of the United States Code.


text:
    THE FLORIDA BAR, Complainant, v. Ernest M. BREED, Jr., Respondent.
    No. 55195.
    Supreme Court of Florida.
    Feb. 22, 1979.
    David G. McGunegle, Branch Staff Counsel, James P. Hollaway, Asst. Staff Counsel, Tallahassee, and Allen R. Smith, Bar Counsel, Winter Haven, for complainant.
    Monterey Campbell of Campbell, Dunlap, Coward & Blakeman, Bartow, for respondent.
   PER CURIAM.

We have for consideration a petition filed by The Florida Bar requesting that Respondent Breed be held in contempt of court for failure to abide by the Integration Rule of The Florida Bar during his suspension.

Breed was temporarily suspended from practice of law until further order of the Court. The Florida Bar v. Breed, 353 So.2d 846 (Fla.1977). The Florida Bar alleges that on August 24, 1978, a sign hanging over the door of Breed’s office read “Law Offices, Ernest M. Breed, 154.” Also, during the period from August 15, 1978, to August 30, 1978, Breed engaged in correspondence using letterhead stationery identifying him as an attorney at law.

In response to the Petition for Rule to Show Cause, Breed says he was not aware of any prohibition against the continued presence of the sign or the usé of the letterhead stationery.

A suspended attorney, although still a member of The Florida Bar, is without the privilege of practicing or holding himself out to the public and others as able to practice. Florida Bar Integration Rule, Art. XI; Rule 11.10(3).

The Court finds that Breed is in contempt of court for his failure to abide by this Court’s orders and rules governing the conduct of suspended attorneys. See The Florida Bar v. Abagis, 327 So.2d 208 (Fla.1976); The Florida Bar v. Brigman, 322 So.2d 556 (Fla.1975).

The adjudication of contempt is withheld on condition that the aforesaid sign be removed within 15 days from the filing of this order and that Breed refrain from using letterhead stationery identifying him as an attorney at law.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Ronald J. FATH, Respondent.
    No. 55613.
    Supreme Court of Florida.
    Feb. 22, 1979.
    Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, and Joel D. Eaton, Bar Counsel, Miami, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Ronald J. Fath, a member of The Florida Bar, is before us on complaint of The Florida Bar and report of the referee. The referee’s report and record were duly filed with this Court pursuant to Florida Bar Integration Rule, article XI, Rule 11.06(9)(b). No petition for review has been filed but we are nevertheless required to review the report of the referee. Fla.Bar Integr.Rule, art. XI, Rule 11.09(3)(f).

The findings of fact and recommendations of the referee in pertinent part are as follows:

II. Summary of Facts.
On March 16, 1974, Pedro Uzat was involved in an automobile accident in Dade County, Florida, arrested and charged with careless driving, driving under the influence of alcohol, and leaving the scene of an accident by investigating officers. Following his release on bond, Uzat, and his wife, received a number of telephone calls from an unidentified caller advising that he contact Fath to represent him on the charges. Uzat testified that at the time of the accident he did not know Fath, and had never had any contact with him.
Thinking, however, that the unidentified calls emanated from the police,1 Uzat
iNo inference has been drawn that Fath initiated the calls.
contacted Fath, who agreed to represent him in connection with the three traffic charges. Fath and Uzat agreed upon a fee of $500.00, and Uzat paid Fath at least $460.00 of the $500.00 in a series of four installment payments, the first on May 7, 1974, and the last two on January 10, and February 27, 1975. Uzat submitted receipts for these payments, signed by either Fath or his secretary, to the Grievance Committee. By letter to the Committee, Fath denied ever receiving the fee.
According to court records, trial on the charges was set initially for June 3, 1974, but continued to June 13. On that date, Uzat did not appear. According to his testimony, he received no notice from the court of the trial date, and neither he, nor his wife, were informed by Fath of the scheduled hearing. While court records contained an inaccurate address, as Uzat had given his brother-in-law’s address to the investigating officers in case bond was necessary, both he and his wife testified that they had given Fath their correct home address and their correct telephone number on several occasions.
Although Fath appeared on Uzat’s behalf on June 13, the court issued a bench warrant for Uzat’s arrest and ordered his driver’s license suspended for five years. Fath does not deny, in his December 9, 1976 letter to the Grievance Committee, that he failed to inform Uzat of the June 13 trial date. No mention is made of why this fact was not brought to the court’s attention prior to the issuance of the warrant and the suspension of the defendant’s driver’s license.
The record further reflects that Fath failed to advise Uzat of the action taken by the court following his failure to appear. Though Fath represents in his letter of December 9 to the Grievance Committee that he tried unsuccessfully by telephone and letter to notify Uzat of the court’s action, Uzat and his wife deny receiving any such call or letter, and the record does not reflect that such a letter was delivered to Uzat. It was only months later, when Uzat attempted to renew his Florida driver’s license, that he discovered that his license had been suspended and that a bench warrant had been issued for his arrest.
Upon discovery of the action taken by the court on June 13, Uzat contacted Fath for an explanation. Fath advised that he would take care of the matter, and upon this representation, in January and February of 1975, Uzat continued to • make installments upon the $500.00 fee. The record reflects however, that Fath made no attempt thereafter to rectify the action taken by the court on June 13. There is no evidence in the record of any attempt by Fath to advise the court that his client had not been notified of the hearing, regardless of the reason; to have the bench warrant rescinded; to reschedule the trial; or to set aside the suspension.
Accordingly, upon consideration of the pleadings and the evidence before me, I find as follows:
1. Respondent Ronald J. Fath is, and at all times hereafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. Shortly after March 16, 1974, Fath was retained by Pedro Uzat to represent him in. connection with three traffic citations described above, including trial upon those charges. Uzat paid Fath at least $460.00 for his services in connection with these traffic citations over a period of ten months, beginning May 7, 1974, terminating February 27, 1975.
3. Fath made no attempt to notify Uzat of the date of trial upon the charges covered by the contract for services, and Uzat was accordingly unaware that trial upon the three charges which Fath was hired to handle was to be held, and was held, on June 13, 1974.
4. Uzat did not receive notice from the court of the June 13 trial date because Uzat’s address appearing upon court records was incorrect.
5. Fath appeared before the court on June 13,1974, on behalf of Uzat, and was present when the court issued a bench warrant for Uzat’s arrest, and suspended his driver’s license for five years on the basis of his non-appearance.
6. Fath did not advise Uzat, by letter, by telephone, or other fashion, of the action taken by the court on June 13, nor did he thereafter make any effort to use reasonably available means provided by the law to have the charges against Uzat tried on the merits, or to present to the court the reasons for Uzat’s non-appearance at trial on June 13.
7. Upon learning a few months after the warrant was issued, and the suspension imposed, of the action taken by the court, Uzat contacted Fath and asked his assistance in asserting his rights, and Fath agreed to attempt to pursue legal remedies available to Uzat to correct the default action taken against him by the court.
8. Following this agreement, Fath took no further action to represent Uzat in connection with the traffic charges pending against him, the outstanding bench warrant, or the suspension of his driver’s license, yet continued thereafter to accept money from him for legal services.
9. Uzat and his wife made repeated efforts thereafter to contact Fath, spoke repeatedly with his office and his secretary, and Fath refused to return these calls or otherwise contact his client.
10. Fath was personally served with a copy of the Complaint of The Florida Bar herein by certified mail on March 9, 1978, filed no answer to the Complaint, did not appear at trial before the referee on May 13, 1978, and was not represented by counsel at that trial. In accordance with the provisions of Rule 11.13(2), Integration Rules of The Florida Bar, notice of the referee’s trial was sent to Fath by certified mail at his last known address in the records of The Florida Bar, 1710 N.W. 7th Street, N.W., Miami, Florida, an address twice confirmed by Bar counsel through the yellow pages directory for the City of Miami, and in telephone conversation with respondent’s secretary. Moreover, on May 3, 1978, at the request of the referee, Fath’s secretary was personally served by special process server with copies of the Complaint of The Florida Bar and the notice of trial before the referee following repeated attempts by the special process server to serve the respondent personally. To repeat, extraordinary efforts were made to insure that Fath had notice of the trial before the referee, and to guarantee his right to confrontation, cross-examination, and to present witnesses.
11. Fath was retained by Uzat to represent him in connection with the March 16, 1974 traffic charges, accepted a fee for his services, did not provide the services contemplated by his agreement with his client, and both prior to and after the June 13,1974, trial, neglected representation of Uzat in connection with the traffic charges.
12. Fath intentionally failed to seek Uzat’s lawful objectives through reasonably available means permitted by law by not advising the court on June 13, 1974, or thereafter, that he had not advised his client of the date of trial, and by not petitioning the court to quash the bench warrant and rescinded the driver’s license suspension because of an unintentional and inadvertent failure of the client to appear at trial.

III. Recommendation of Guilt or Innocence.

I recommend that the respondent be found guilty of each charge set forth in the Complaint of The Florida Bar, and specifically that he be found guilty of the violation of Disciplinary Rules 6-101(A)(3), 7-101(A)(2), and 7-101(A)(3) of the Code of Professional Responsibility promulgated by this Court.

IV. Recommendation as to Disciplinary Measure to be Applied.

It is the recommendation of the referee, on the basis of the foregoing violations of the Disciplinary Rules of the Code of Professional Responsibility, that respondent Ronald J. Fath be publicly reprimanded and suspended from the practice of law for a period of three (3) months, with automatic reinstatement at the end of this period, such automatic reinstatement to be expressly conditioned upon payment by the respondent of the costs of this proceeding, and restitution to his client in the amount of $460.00, all as provided by Rule 11.02(2), Integration Rules of The Florida Bar.

I am advised by Bar counsel that the respondent has no prior record of disciplinary action by the Supreme Court. The offenses described here are, therefore, respondent’s first violation of the Disciplinary Rules. It is the judgment of the referee, however, that the recommended suspension is fully justified by the seriousness of the violations cited. In addition, I find that the recommended discipline is further justified by respondent’s blatant disregard for these disciplinary proceedings.

Having carefully reviewed the record, we find the allegations of the complaint to be proved by clear and convincing evidence and, therefore, we approve the findings and recommendations of the referee. See Florida Bar v. Blaha, 366 So.2d 433 at 438 (Fla.1978); Florida Bar v. Timson, 257 So.2d 44 (Fla.1971); Florida Bar v. Taylor, 201 So.2d 449 (Fla.1967).

Accordingly, respondent, Ronald J. Fath, is hereby suspended from the practice of law for a period of three months, with automatic reinstatement at the end of this period. However, such automatic reinstatement is conditioned upon payment by respondent of the costs of this proceeding and restitution to his client in the amount of $460, as provided by Florida Bar Integration Rule, article XI, Rule 11.02(2).

The suspension shall be effective on March 26, 1979, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business.

Costs in the amount of $347.20 found by this Court to have been reasonably incurred by The Florida Bar are hereby taxed against the respondent.

It is so ordered.

ADKINS, Acting C. J., and BOYD, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: LETTS, Judge.

text:
    Maynard NELSON and Myrtle Nelson, Appellants, v. RELIANCE INSURANCE COMPANY et al., Appellees.
    No. 77-702.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1978.
    Lawrence U. L. Chandler of Hamilton, James, Merkle and Young, West Palm Beach, for appellants.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney and Searcy, West Palm Beach, for appellees.
   LETTS, Judge.

This cause is affirmed.

Notwithstanding, we are perturbed at the conduct of defense counsel during this trial and had appropriate objections been lodged, particularly during closing argument, we would have reversed because there exist innumerable examples of improper comment and argument. However, we perceive very few instances where remarks by an attorney are of such sinister influence as to constitute reversible error, absent objection. LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA 1978). Few, if any, objections were lodged about the improper remarks made by defense counsel during closing argument in this case although such remarks were numerous. It would be their cumulative effect that would justify reversal. We noted in the LeRetil-ley case, supra that objections to a particular course of conduct once made and overruled need not be repeated. However, the remarks here, while all improper, were by no means identical and there was no motion for a mistrial.

We are distressed at an increasing tendency, by the trial bar, to permit the noble art of trial practice to degenerate into a free-for-all. See Seguin v. Hauser Motor Company, 350 So.2d 1089 (Fla. 4th DCA 1977), and Levin v. Hanks, 356 So.2d 21 (Fla. 4th DCA 1978). However, while all judges are required by judicial dictates to exercise control over a trial, absent proper objections, neither trial, nor appellate judges, can be expected to take on the role of school teachers, continually correcting argument or comment unobjected to by opposing counsel.

We view, with some skepticism, appellant’s agonized cries that comment by opposing counsel below deprived him of a fair and impartial trial, when not so much as an objection was deemed necessary upon the occasion of the supposedly fatal utterances. We must assume that silence from experienced counsel is a judgment play predicated on his or her concept of how the trial is going. As such the failure to object constitutes intentional trial tactics, mistakes of which are not to be corrected on appeal simply because they backfire, save in the most rare of circumstances, Haist v. Scarp, 351 So.2d 1120 (Fla. 4th DCA 1977). But see Akin v. State, 86 Fla. 564, 98 So. 609, 612 (1923).

AFFIRMED.

DOWNEY, C. J., and CROSS, J., concur.


text:
    GWYNNDALE, INC., a Florida Corporation, Appellant, v. Charles FRIEND, Appellee.
    No. KK-171.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1978.
    H. 0. Pemberton, of Keen, O’Kelley, Field & Ellis, Tallahassee, for appellant.
    Harry H. Mitchell, of Mitchell & Mitchell, Tallahassee, for appellee.
   PER CURIAM.

This cause is before us on appeal from the Circuit Court, Leon County. The question presented is whether money paid to a corporation ($5,843.30) by a stockholder was: (a) a loan required to be repaid with interest by the corporation, as found by the trial court or (b) a contribution to capital, as contended by appellant. Other questions presented are the applicability of the four-year statute of limitations and appellee’s claim to attorney’s fees which was denied by the trial court.

We have reviewed the record and briefs in this case and find that the learned trial court has correctly resolved the questions of fact and law presented in its decision, in pertinent part as follows:

“1. The Defendant’s conduct from 1965 until the Spring of 1977, as evidenced by various documents in evidence including correspondence, promissory notes, financial statements and copies of ledger pages, has represented the advances made to it by its stockholders as loans. It specifically promised to repay at least two of said loans by the issuance of notes bearing six percent interest. I find that the Plaintiff reasonably believed that all such advances were loans to the corporation at 6% interest. Said corporation is indebted to Plaintiff accordingly.
2. I further find that the Defendant’s witnesses’ testimony is insufficient to overcome the various documents prepared by the corporation as mentioned above. Defendant has offered no documentary evidence showing that the corporation did not consider said advances as loans.
3. The amount advanced by Plaintiff to Defendant over the years totals $5,843.30 principal, after allowing all proper credits to Defendant.
4. The defendant has acknowledged the said obligations in writing at various times by correspondence, financial statements and by its own account books. Accordingly, the defense of limitations has not been proved by Defendant.
5. Plaintiff’s evidence was insufficient to justify an award of attorney’s fees.”

Accordingly, the judgment below is AFFIRMED.

BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur.


author: BOARDMAN, Judge.

text:
    Willie James WATKINS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1473.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    Rehearing Denied March 7, 1979.

      Jack 0. Johnson, Public Defender, and Thomas A. McDonald, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant contends that the trial court erred in revoking his probation. We do not agree, and we affirm.

A jury found appellant guilty of burglary and resisting arrest without violence, and the sentencing court placed appellant on probation for a period of three years. Thereafter appellant was charged with violating three conditions of his probation. Following a hearing the trial court entered an order of revocation of probation finding that appellant had violated conditions of the order of probation by not paying the monthly supervisory fee, by failing to obtain permission before a change of residence, and by failing to comply with all instructions given him by the probation officer in that he did not report to the probation officer when requested to do so. The trial court sentenced appellant to two concurrent one-year terms in the county jail with credit for all time served.

At the hearing on these charges the probation officer read the alleged violations into the record. Counsel for appellant admitted the violations and sought to have appellant explain the circumstances. Appellant testified that he had not paid the fees because he was unemployed and thus unable to obtain the necessary funds. Appellant admitted changing his residence in May but said his landlord instructed him to leave because of delinquent rent. Although the probation officer instructed appellant to report in person during the first week in June, appellant said he was detained in transporting his ill grandmother and did not appear. Appellant did report to the probation officer in July and gave his new address at that time.

The trial court found that appellant was able to make the supervisory payments, but we find no evidence in the record to support that conclusion. Appellant rightfully contends that probation cannot be revoked solely for violation of a condition requiring payment without evidence that the probationer was able to make the payment. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979); Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978). If there were no other grounds for revocation of probation we would reverse.

Appellant contends that obtaining consent to a change of residence would have been a useless act because he was virtually evicted from his approved residence for nonpayment of rent. Appellant relies on the decision of our sister court that held eviction by legal process to be a defense to violation of a similar condition. Kotowski v. State, 344 So.2d 602 (Fla. 3d DCA 1977). It may very well be that eviction would constitute a defense to failure to obtain consent if consent were denied, but appellant neither requested consent to change his residence nor notified the probation officer of the alleged eviction. Additionally, the probation officer did not know of appellant’s whereabouts for over a month and then only when the next monthly report was submitted. Under these circumstances we hold that the trial court’s finding that appellant violated this condition was proper and supported by the evidence.

Appellant argues that his failure to report in June was only an isolated incident and as such was not a sufficient ground to revoke his probation. We do not agree. The record shows that appellant failed to report for over a month after his failure to appear in June and consequently was unavailable to the probation officer during that period of time. It is well settled that probation may be revoked upon satisfaction of the conscience of the court. Bernhardt v. State, 288 So.2d 490 (Fla.1974).

We note that the order by the probation officer to report in June was not a court-imposed condition of probation but was made by the probation' officer pursuant to the court-imposed condition which provides:

You will promptly and truthfully answer all inquiries directed to you by the Court or the Probation Officer,' and allow the Officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you.

This condition of probation is clear and unambiguous, and the probationer’s compliance with its provisions is required. We are aware of the holding in Barber v. State, 344 So.2d 913 (Fla. 3d DCA 1977), that violation of orders given by the probation officer will not support revocation of probation. We believe that application of this result to the instant case would be contrary to the intent of probation. See Bernhardt v. State, supra. To deny the probation officer authority over the probationer would not only render such supervision ineffective, but would cause additional and unwarranted judicial labor in utilizing and reviewing probation. The probationer is protected from inconsequential directions by the statutory mandate that probation be revoked only for material violations. § 948.06(1), Fla.Stat. (1977). We see no need to require the probation officer to appear before the court for sanction of valid supervisory directions. We also point out that the condition in question is specifically authorized by Section 948.03(l)(c), Florida Statutes (1977).

Probation is dependent on legislative and judicial grace. Baker v. State, 319 So.2d 628 (Fla. 1st DCA 1975). The burdens of compliance with conditions are slight in comparison to the alternative imprisonment.

The trial court is directed to strike the finding that appellant violated his probation by failing to pay the supervisory fee. Appellant need not be present for this purpose. Otherwise the order of revocation of probation, judgment, and sentence is affirmed.

AFFIRMED as modified and REMANDED for the purpose set out in this opinion.

GRIMES, C. J., and RYDER, J., concur.


text:
    Robert Roy RUNGE, Appellant, v. STATE of Florida, Appellee.
    No. 78-454.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 1979.
    Rehearing Denied March 7, 1979.
    Jack 0. Johnson, Public Defender, and Thomas A. McDonald, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was tried by jury and convicted of assault on a law enforcement officer, sale of marijuana, and possession of more than five grams of marijuana. He was sentenced to one year for the assault and to five years for the possession and sale of marijuana.

The evidence at trial established that appellant merely brought the parties to the drug sale together; there was no evidence that he was ever in actual or constructive possession of the marijuana. Accordingly, the judgment for possession of marijuana cannot stand and must be vacated. Daudt v. State, 368 So.2d 52 (Fla.2d DCA 1979). No other error having been made to appear, the judgment and sentence for assault on a law enforcement officer and the judgment for sale of marijuana are affirmed. Because only a single sentence was entered on both the conviction for sale of marijuana and the conviction for possession of marijuana, the cause is remanded for resentencing on the sale count only. Daudt v. State, supra. Appellant is entitled to be present at resen-tencing.

GRIMES, C. J., and SCHEB and DAN-AHY, JJ., concur.


author: ERVIN, Judge.

text:
    DEPARTMENT OF REVENUE, Appellant, v. E. M. HOBBS, etc., et al., Appellees.
    No. JJ-63.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1979.
    Rehearing Denied March 29, 1979.

      Robert L. Shevin, Atty. Gen., E. Wilson Crump, II, Asst. Atty. Gen., for appellant.
    David W. Palmer, Crestview, Eugene J. Celia, Tallahassee, for appellees.
   ERVIN, Judge.

This appeal spawns from an unfortunate history of conflicting and sometimes confusing decisions from our court, discussed in detail infra. The Department of Revenue (DOR) appeals the lower court’s final summary judgment holding that appellees were due refunds for admissions taxes paid by them for the years they were collected.

The appellees are proprietors of deep sea party fishing boats, who, for an admission fee paid at dockside, take their customers into the off-shore waters, usually beyond Florida’s territorial limits. For many years the appellees collected no admissions taxes as required by § 212.04, Fla.Stat. (1969), from their customers. Later, under protest, each of the appellees remitted the taxes to appellant for which they now seek refunds.

Appellees’ complaint, first filed in November, 1970, alleged the tax was illegal and could not be collected since their operations were similar to those of a party boat operator in Straughn v. Kelly Boat Service, 210 So.2d 266 (Fla. 1st DCA 1968). The action was stayed, either by agreement of the parties or order of the court pending final disposition of similar cases which presumably would affect the outcome of the instant case. After the mandate in Davis and Sons, Inc. v. Askew, supra note 2, was filed, the court found DOR was estopped from retaining the taxes which it had collected from appellees and ordered refunds.

DOR argues, and we agree, that under the circumstances estoppel cannot be invoked against the state and that the Davis decision stands on its own exceptional facts. Davis affirmed the trial court’s judgment which had enjoined DOR from assessing admissions taxes against Davis between 1970 and the filing of mandate of Pelican, supra note 2. We conclude the facts in Department of Revenue v. Kelly Boat Service, Inc., supra note 2 (Kelly II), are much more apposite to those before us than those in Davis. The Davis decision observed that in Kelly II:

[T]he primary focus of appellees . was . . . that the admission tax was illegal — an issue which had been decided in Pelican but with different parties. . . . Although appellees in Kelly II referred to estoppel on several occasions . . . , there was never any clear focus on a contention of estoppel. There was no evidence presented in Kelly II (as was presented here) which would indicate that the Department, through its actions had encouraged appellees not to collect the tax during the interim between the decision in Kelly I and the decision in Pelican. Id. at 1333.

Appellees’ position before the trial court was quite similar to that of the taxpayers in Kelly II. The entire thrust of appellees’ original and amended complaints was that the collection of the admissions taxes was prohibited by Kelly I. Appellees’ pleadings raised no allegations of estoppel. Before estoppel is permitted as a basis for relief, it, and all its elements, must be specifically alleged. Cf. Croft v. Young, 188 So.2d 859 (Fla. 1st DCA 1966).

The court’s final summary judgment, finding the state estopped, affected taxes already collected, which were ordered refunded, and taxes not collected, which the Department was enjoined from collecting. As to the former, the Department can hardly be said estopped since clearly no representations were made to the taxpayers it would not collect taxes which it in fact collected.

As to the latter, the lower court’s final judgment relied in part upon a letter from the Department, addressed to its audit and area supervisors, which had stated: “No attempt should be made at this time to make any back assessments.” The court concluded that the letter, and other Department correspondence, “makes clear that prior to Pelican, supra, decided January 6, 1972, the tax had not been collected.” The mere fact of non-collection is hardly a basis for estoppel. Kelly II unequivocally stated that DOR was not foreclosed from back assessing Kelly for taxes which should have been paid between August, 1970, and the first day of August, 1973, the month the Department demanded the production of Kelly’s records for audit pursuant to § 212.14(6), which permits the Department to back assess for all unpaid admissions taxes over a three year period. The correspondence here was not forwarded to appellees — only to Department personnel. Even if it were established it was common knowledge among party boat operators that the Department had decided to delay its audits until the uncertainty of its authority to collect — created by Kelly I —was resolved, the circumstance of knowledge still would not create an estoppel against the state. The general rule is that administrative officers are not estopped through mistaken statements of the law. North American Company v. Green, 120 So.2d 603 (Fla.1959); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977); First Nat. Bank, etc. v. Dept. of Revenue, 364 So.2d 38 (Fla. 1st DCA 1978).

Unlike the situation in Davis, where direct representations were made to the taxpayers that the Department would not, for the time being, attempt to enforce collection of the tax upon plaintiff’s operations, and Davis’ reliance to his detriment, caused by the representations, no such representations were made by DOR to any of the appellees that it would not collect the tax. The court’s final summary judgment relied upon a deposition of George W. Davis, the plaintiff in George W. Davis & Sons, Inc. v. Askew, supra, which stated that Department agents had advised him they would not collect the tax. Whatever representations were made by DOR to a party in a separate case are hardly relevant to a determination of estoppel here. Strangers to transactions from which an estoppel arises cannot take advantage of estoppel, so that depositions in the record involving representations made to a plaintiff in Davis, supra, are irrelevant. See 12 Fla.Jur., Es-toppel and Waiver, § 74 (1957).

We conclude that appellees have failed to establish any theory of estoppel which would bar DOR from retaining taxes already collected or from auditing and assessing the tax liability for appellees for all periods not barred by the statute of limitations. The lower court’s judgment is reversed with directions that judgment be entered in favor of DOR.

SMITH, Acting C. J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.

      . This case, referred to afterward as Kelly I, held that the state could not collect any sales or admissions taxes on party boat operators who, like appellees, took their customers outside the state’s territorial limits and there sold them refreshments or rented them fishing equipment.

      . Department of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla. 1st DCA 1972), cert. den., 262 So.2d 682 (Fla.1972), cert. dism. 287 So.2d 93 (Fla.1974), limited the Kelly I decision only to the collection of taxes on transactions which occurred outside Florida’s territorial waters— not to taxes on admissions which were obtained dockside; Department of Revenue v. Kelly Boat Service, Inc., 324 So.2d 651 (Fla. 1st DCA 1976); Davis and Sons, Inc. v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977).

      . One of the court’s prior orders, entered on September 17, 1973, temporarily enjoined DOR from collecting taxes then due or alleged due until final disposition of Pelican. The injunction was later modified to permit DOR to collect all admissions taxes accruing only from April 11, 1973 — the date mandate in Pelican was filed with the court.

      . To justify a claim of estoppel against the state there must be (1) a representation by the party estopped to the party claiming estoppel as to some material fact, (2) a reliance upon the representation by the party claiming the estop-pel and (3) a change in such party’s position, caused by his reliance upon the representation to his detriment. Greenhut Construction Co., Inc. v. Knott, 247 So.2d 517 (Fla. 1st DCA 1971).


author: SCHEB, Judge.

text:
    William M. JOHNSON et al., Appellants, v. Karen L. SZYMANSKI, formerly Karen L. Gochenour, Appellee.
    No. 78-760.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 1979.
    Rehearing Denied March 7, 1979.
    Gerald W. Pierce, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
    Jeffrey R. Garvin, of Moorey, Seals & Garvin, Fort Myers, for appellee.
   SCHEB, Judge.

Appellants/defendants challenge a jury verdict in favor of appellee/plaintiff in a malpractice action, as well as the trial court’s order denying their posttrial motion for a judgment notwithstanding the verdict. This appeal presents but one question: Did the trial court correctly apply the four-year limitation period in effect when the defendant doctor committed the malpractice, or should the court have applied the shorter two-year limitation period in effect when the plaintiff discovered the malpractice? We hold that the trial court should have applied the two-year limitation period in effect when the malpractice was discovered; therefore, we reverse.

On December 19, 1975, plaintiff Szyman-ski brought suit against defendant Johnson, an orthodontist, and his insurer claiming that she had been irreparably injured by following the defendant’s recommendation that she have four teeth removed. The cause went to trial in February 1978. The evidence showed that the plaintiff began seeing the defendant about her orthodontical problems in April 1972. Acting on the defendant’s advice, the plaintiff had the four teeth removed by an oral surgeon on June 30 of that year. The jury found the defendant guilty of malpractice and returned a verdict in favor of the plaintiff for $24,000. By special interrogatory the jury found that plaintiff could not have reasonably discovered the defendant’s malpractice before October 1973.

In the motion for a judgment notwithstanding the verdict the defendant alleged that the plaintiffs claim was barred by the statute of limitations. The defendant argued that the two-year limitation period of § 95.11(6), Fla.Stat. (1973) expired in October 1975, thereby barring the plaintiff’s suit filed in December 1975. The plaintiff countered that the four-year limitation period of § 95.11(4), Fla.Stat. (1971) was applicable, making her suit timely. The trial court agreed with the plaintiff and denied the defendant’s motion. This appeal ensued.

There is no dispute that the defendant’s malpractice occurred before July 1, 1972, the effective date of the two-year limitation period for medical malpractice contained in § 95.11(6). Nor is it disputed that the plaintiff could not have reasonably discovered the defendant’s malpractice before October 1973, after the effective date of § 95.11(6).

Before July 1, 1972, medical malpractice actions sounding in tort fell under § 95.-11(4), Fla.Stat. (1971), which provided a four-year limitation period for any action “not specifically provided for in this chapter.” Manning v. Serrano, 97 So.2d 688 (Fla.1957). In 1971 the legislature passed Ch. 71-254, Laws of Florida, which amended § 95.11 to read in pertinent part as follows:

Limitations upon actions other than the recovery of real property — Actions other than those for the recovery of real property can only be commenced as follows:
(6) WITHIN TWO YEARS — An action . to recover damages for injuries to the person arising from any medical, dental, optometric, [chiropodial], or chiropractic treatment or surgical operation, the cause of action in such cases not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury. (Emphasis added.)

It is well settled that a shortened limitation period should not be given retroactive effect unless the legislature has expressed in “clear and explicit language” that such retroactive effect is intended. Foley v. Morris, 339 So.2d 215, 216 (Fla.1976). Since Ch. 71-254 does not evince any legislative intent that it be applied retroactively, the two-year limitation period for medical malpractice should be given prospective effect only.. Foley v. Morris, supra; Maltempo v. Cuthbert, 288 So.2d 517 (Fla.2d DCA 1974).

The defendant contends that the statute of limitations does not attach when the act of malpractice occurs, as the trial court implicitly found; instead, he argues, it attaches when the plaintiff’s cause of action “accrues,” i. e., when the plaintiff discovers the defendant’s malpractice.

We have found no Florida cases addressing the precise point here involved. The defendant relies upon Stoner v. Carr, 97 Idaho 641, 550 P.2d 259 (1976). There the Stoners sued a doctor and others for medical malpractice. Their complaint alleged that the doctor had negligently left a needle in Mrs. Stoner’s body during an operation in March 1971. A two-year limitation period was in effect when the operation was performed; however, by the time the needle was discovered in 1973 a one-year limitation period was in effect. The one-year statute provided, as does § 95.11(6), that a cause of action does not accrue until the malpractice is discovered or should have been discovered. The majority of the Idaho court found that the date of accrual, /. e., the date of discovery, was the pivotal date when the applicable statute of limitations attached. The majority held that application of the one-year limitation period would not be retroactive because the plaintiffs’ cause of action did not accrue until after the new statute became effective. A strong dissent argued that the pivotal date at which the limitation period attached was when the malpractice occurred, and not when it was discovered.

Florida, like Idaho, follows the “discovery rule,” i. e., the limitation period does not begin to run until the plaintiff discovers the defendant’s malpractice, or should have discovered it through the exercise of due diligence. This concept is statutorily embodied in § 95.11(6), which is expository of the prior decisional law of this state. Nardone v. Reynolds, 333 So.2d 25, 32 (Fla.1976); City of Miami v. Brooks, 70 So.2d 306, 308-09 (Fla.1954); see Smith v. Continental Insurance Co., 326 So.2d 189, 191 (Fla.2d DCA 1976).

The trial court in effect adopted the position of the dissent in Stoner. In support of the trial court the plaintiff argues that the limitation period attaches when the act of malpractice occurs, and that the discovery rule does nothing more than toll the running of the limitation period until the plaintiff discovers the malpractice. We cannot agree.

Plaintiff’s argument is refuted by the express language of § 95.11(6), which says that a cause of action shall not “be deemed to have accrued” until the plaintiff discovers, or should have discovered, the act of malpractice. A cause of action accrues “when the plaintiff could first have maintained his action to a successful result . when the person in whose favor it arises is first entitled to institute a judicial proceeding for the enforcement of his rights.” 1 Am.Jur.2d Actions § 88 (1962) (footnotes omitted); see also Black’s Law Dictionary 37 (4th ed. 1957). We agree with the Stoner majority that the date upon which the defendant’s malpractice is discovered (or should have been discovered) by the plaintiff is the point at which the statute of limitations attaches. See also Von Villas v. Williams, 117 R.I. 309, 366 A.2d 545, 549 (1976); Dirksen v. Hynes & Howes Insurance Counselors, Inc., 423 F.Supp. 1290, 1294-95 (S.D.Iowa 1976). In the instant case the two-year limitation period of § 95.11(6) was in effect when the plaintiff should reasonably have discovered the defendant’s malpractice (October 1973); therefore, we think that statute was controlling.

Accordingly, we reverse the trial court’s final judgment entered on the jury’s verdict and its order denying the defendant’s motion for a judgment notwithstanding the verdict, and remand for entry of a final judgment in favor of the defendant and his insurer.

GRIMES, C. J., and HOBSON, J., concur.

      . § 95.11 has been substantially altered by the legislature since 1971. See Ch. 78-435, § 11, Laws of Fla. (effective November 1, 1978); Ch. 77-174, § 1, Laws of Fla. (effective August 2, 1977); Ch. 75-9, § 7, Laws of Fla. (effective May 20, 1975). However, none of these changes apply to the instant case.

      . In Foley v. Morris, Maltempo v. Cuthbert, and the other cases dealing with § 95.11(6) the act of malpractice and the date by which the malpractice could have been reasonably discovered both occurred before the effective date of the statute. Each party points to certain language in these cases in support of his view. However, since these cases did not deal with this particular problem, we are not persuaded by these arguments.

      . Two Florida cases appear to be factually on point. In both Hili v. Virgin, 359 So.2d 918 (Fla.3d DCA 1978) and Salvaggio v. Austin, 336 So.2d 1282 (Fla.2d DCA 1976) the defendant’s malpractice occurred before the effective date of § 95.11(6), but was not discovered by the plaintiff until afterwards. In each case the court found § 95.11(6) applicable.


text:
    Jack WHITELOCK, Appellant, v. James R. GEIGER, Appellee.
    No. 78-214.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied March 27, 1979.

      Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellant.
    Jackson & Dawkins and Ernest D. Jackson, Jacksonville, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Plaintiff, Jack Whitelock, and defendant, James Geiger, appeal an order denying relief to Whitelock on his complaint to collect the monies due and owing from Geiger on two promissory notes, and to Geiger on his counterclaim seeking damages for fraud and breach of an oral contract.

James Geiger was the owner-operator of Bahama-American, Inc., a truck-stop business which was losing money. Geiger hired Jack Whitelock to act as economic advisor for the purpose of developing the business into a profitable venture. Geiger contends that in the event this goal could not be attained, Whitelock agreed to arrange for the sale of Bahama-American which would net Geiger not less than one million dollars. Subsequently Geiger and Bahama-American executed two promissory notes for $50,-000 and $26,000 in favor of Whitelock for loans in those amounts with the understanding that the notes were to be satisfied from the proceeds of the eventual sale of the business. Thereafter, upon the advice of Whitelock, an offer to purchase Bahama-American by Ground/Data Corporation was turned down, and under Whitelock’s direction, Geiger placed Bahama-American into voluntary bankruptcy. Whitelock, without Geiger’s knowledge, entered into a private agreement with First Federal Savings and Loan Association, the major secured creditor of Bahama-American, whereby First Federal withdrew from the bankruptcy proceedings and foreclosed on the business. Pursuant to the agreement White-lock then purchased the business from First Federal for $1,600,000. Whitelock then instituted the present suit to collect the monies due under the two promissory notes upon which Geiger defaulted. Geiger counterclaimed for damages for (1) breach of a fiduciary relationship, (2) breach of the alleged oral contract, and (3) fraud inasmuch as Geiger had refused to pay him a million dollars and further refused to pay the creditors of the now bankrupt Bahama-American, Inc. Whitelock asserted as defenses to Geiger’s counterclaim that the alleged oral agreement (1) was barred by the statute of frauds, (2) was void as a restraint against trade, and (3) violated public policy (i. e. using the federal bankruptcy laws to default the creditors of a corporation). The trial judge entered partial summary judgment for Whitelock on the notes but withheld execution pending adjudication of Geiger’s counterclaim. An evidentiary hearing was held to determine the validity of Geiger’s counterclaim and affirmative defenses. After the hearing, the judge entered the following order:

“THIS MATTER having come on to be heard before the Court for Final Hearing on the issues of statutes of fraud fiduciary relationship and a fraudulent scheme between the parties attending bankruptcy proceedings, other issues are rendered moot by this decision.
“1. The Court finds that the evidence is clear and convincing that Plaintiff with the Defendant devised a scheme to defraud creditors in bankruptcy proceedings involving Defendant’s business.
“2. The Court finds that the Defendant, GEIGER is a sophisticated businessman with experience in accounting and did admit in his deposition on pages 150 through 184 that he and Plaintiff had devised a scheme to defraud creditors and in fact, this scheme was carried out when fiduciary WHITELOCK bought the property at bankruptcy.
“3. That the Plaintiff WHITELOCK was acting in a fiduciary capacity in his dealings with GEIGER and his admitted participation with GEIGER in a scheme to defraud creditors is against public policy.
“4. The Court further finds that the Defendant GEIGER executed two demand notes; one in the amount of $26,-000.00, and one in the amount of $50,-000.00, in the favor of Plaintiff WHI-TELOCK, and that this Court did enter Summary Judgment on the two notes in the favor of JACK WHITELOCK, staying execution of collection pending determination of the other issues.
“5. That the Court did take testimony and receive voluminous exhibits from the parties.
“Therefore, it is
“ORDERED and ADJUDGED:
“1. That the parties did engage in a common scheme to defraud the creditors of the bankrupt GEIGER, and the Court leaves the parties where it finds them.
“2. The notes drawn by Defendant GEIGER in the amounts of $26,000.00 and $50,000.00 to the favor of JACK WHITELOCK are hereby void and do not constitute a legal obligation of the Defendant GEIGER, and further the Judgment of November 10, 1977, in Plaintiff’s favor is set aside and vacated.
“3. That the counterclaim of GEIGER is hereby dismissed with prejudice.
“4. The Court further recommends and suggests that the United States Assistant Attorney General cause an investigation in reference to the fraudulent scheme attending the Petition in Bankruptcy.”
* ‡ Sfc ¡‡! Sfc Sfc

Whitelock and Geiger appeal the order. We affirm.

After an examination of the record, we are satisfied that there is sufficient competent evidence to sustain the findings of the trial judge. We, therefore, will not disturb the order denying relief to both Whitelock and Geiger inasmuch as when both parties are in pari delicto, the court will leave them to settle their disputes without the aid of the court. Cf. Spector v. Ahrenholz, 107 So.2d 34 (Fla. 3d DCA 1958); Schetter v. Schetter, 279 So.2d 58 (Fla. 4th DCA 1973). Bryant v. Stevens, 313 So.2d 124 (Fla. 2d DCA 1975).

Affirmed.

      . The business had been appraised at $4,700,000.


author: ANSTEAD, Judge.

text:
    Thomas R. HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 76-1389.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1979.
    Rehearings Denied April 4, 1979.

      Warner S. Olds, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky and Joy B. Shearer, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant, Thomas R. Hayes, was charged in Count I of an indictment, with the first degree murder of an elderly woman, whose death on December 18, 1975 was alleged to have been caused in part by Hayes tearing the victim’s body in the vaginal area with his hand or other object. He was also charged in Count II of the same indictment with sexual battery of the same victim by the use of his hand or other object. He was tried and convicted on both counts, and sentenced to concurrent terms of life imprisonment.

Hayes claims that it was error for the trial court to adjudicate him guilty of sexual battery because in this case the sexual battery was a lesser included offense of first degree murder. See Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978). At trial it was shown that the victim’s death was caused by the same physical acts involved in the sexual battery. Although there were other injuries inflicted on the victim’s face and head, the proof presented by the state undisputedly proved that it was the sexual injury that caused the death. Under these circumstances we believe that the sexual battery was a lesser included offense of first degree murder and Hayes could only be convicted and sentenced for the higher of the two crimes. Kimbrough, supra.

Hayes also claims that aggravated battery, aggravated assault, battery, and assault were lesser included offenses of first degree murder, and that the trial court erred in refusing to so instruct the jury. In a statement admitted into evidence Hayes admitted beating the victim about the head and face and forcing his fist into her vagina. At trial he testified for the limited purpose of denying that portion of the statement pertaining to the sexual battery of the victim. He claimed that his police interrogator forced him to make such a statement as the only means of avoiding the death penalty. Hayes’ theory of defense was that someone else, either the victim’s husband or an unknown assailant, killed the victim after Hayes left her residence. A physician, called by the state to establish the cause of death, testified that it was more likely that the internal injuries to the sexual area were caused by some instrument other than a human hand, although he acknowledged that these injuries could have been caused by a hand.

In Martin v. State, 342 So.2d 501 (Fla.1977) it was held that the only lesser included offenses which must be instructed upon in a homicide case were those offenses that involved a lawful or. unlawful death:

In this case, it is specifically held that in cases involving homicide, proper jury instructions are limited to those charges involving lawful and unlawful homicide.

In Martin the Supreme Court overruled numerous prior decisions by this court which held that it was error to refuse to give instructions similar to those requested by Hayes here. We are bound to follow the rule set out in Martin and under that rule, since none of the offenses listed by Hayes involved homicide, the trial court correctly denied the requested instructions. While we recognize that Hayes’ defense seemed to be an admission of battery or some other lesser offense, we cannot avoid the direct holding in Martin. Apparently, the Supreme Court’s reasoning is that Hayes is entitled to acquittal if the jury accepts his defense. However, the unfortunate result is that Hayes’ conceded offense will go unpunished in such case.

It is difficult to accept the Martin rule in a case such as this where the defendant is not claiming complete innocence but rather guilt of a lesser offense. But the jury’s options are limited to guilt of a homicide or innocence. While this limitation of options may have played no role in the outcome of this case, it is conceivable that a jury, reluctant to acquit a defendant admittedly guilty of a lesser offense, may mistakenly convict him of a higher offense as a result of the pressure of limited choices. Hopefully this result will be limited to such rare cases as to make the possibility unlikely.

Another decision, State v. Abreau, 363 So.2d 1063 (Fla.1978), also requires a finding of no reversible error on this second point. In Abreau the Supreme Court held that failure to instruct on lesser included offenses may be harmless error where the lesser included offenses are two or more steps removed from the offense charged:

For example, if a defendant is charged with offense “A” of which “B” is the next immediate lesser-included offense (one step removed), and “C” is the next below “B” (two steps removed), then when the jury is instructed on “B” yet still convicts the accused of “A” it is logical to assume that the panel would not have found him guilty only of “C” (that is, would have passed over “B”), so that the failure to instruct on “C” is harmless. If, however, the jury only receives instructions on “A” and “C” and returns a conviction on “A”, the error cannot be harmless because it is impossible to determine whether the jury, if given the opportunity, would have “pardoned” the defendant to the extent of convicting him on “B” (although it may have been unwilling to make the two-step leap downward to “C”). (Id. at 1064)

Here, all lesser degrees of homicide were included in the instructions. The instructions refused included offenses many steps removed from the offense charged, i. e., first degree murder. In addition, the jury not only found Hayes guilty of first degree murder but also guilty of sexual battery. As noted above, we believe that sexual battery was a lesser included offense of murder in this case; since the jury was instructed on sexual battery and returned a verdict of guilty, it is extremely unlikely that the jury would have found Hayes guilty of any of the lesser offenses, all of which are below sexual battery. When we consider the abundant evidence of guilt together with the Abre au decision, we conclude that any failure to instruct, if error at all, was harmless.

Hayes next claims error by the trial court in making certain prejudicial comments critical of his counsel,' in the presence of the jury. The record reveals numerous emotional exchanges between counsel, and between counsel and the court, during the course of the trial. Some of these exchanges may have constituted error, but in the context of the entire record we do not believe that they constituted prejudicial error. Neither do we find any error in the admission by the trial court of photographs of the victim or in the admission of evidence concerning certain statements made by the victim about the appellant. Swan v. State, 322 So.2d 485 (Fla.1975).

Accordingly, the judgment and sentence for sexual battery are hereby reversed with directions that the judgment be vacated. The judgment and sentence for first degree murder are affirmed.

LETTS, J., and POULTON, TIMOTHY, Associate Judge, concur.


text:
    Lael N. CLARK, Appellant, v. FLAGSHIP BANK OF MELBOURNE, N. A., as Executor of the Estates of Ralph E. Balch and Bess D. Balch, Deceased, Ralph Geilich, Individually and Williams Geilich & Potter, Appellees.
    No. 78-118.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1979.
    Rehearings Denied March 30, 1979.
    E. D. Cossaboom, Jr., of Law Offices of E. D. Cossaboom, Jr., Melbourne, and Lael N. Clark, pro se, for appellant.
    Elting L. Storms, of Storms, Pappas & Krasny, P.A., Melbourne, for appellee Flagship Bank.
    Ira William McCollum, Jr. and Robert A. Hannah, of Pitts, Eubanks, Ross & Rumber-ger, P.A., Orlando, for appellee Ralph Gei-lich.
   ANSTEAD, Judge.

This is an appeal from a summary final judgment entered for the defendants, a bank and its attorney, in a wrongful attachment action.

Plaintiff’s property was originally attached in 1967 when the bank filed a conversion action against the plaintiff. At that time the bank’s president executed an affidavit stating that the plaintiff was fraudulently “concealing, disposing and removing property beyond the limits of the State” in order to prevent the bank from recovering the assets in the conversion action. The attorney was alleged to have prepared the affidavit and sought the attachment knowing there were insufficient grounds therefor. Thereafter a writ of attachment was issued and executed pursuant to Section 76.05, Florida Statutes (1967), and plaintiff’s property remained attached under legal process until 1976, when the plaintiff prevailed in a trial of the conversion action.

In support of their motion for summary judgment the appellees submitted to the trial court transcripts of proceedings conducted in an earlier will contest action between the bank and the plaintiff, in which the bank had prevailed. These transcripts contained proof that numerous transfers of properties had occurred from the decedent Balch to the plaintiff, but that the plaintiff had denied those transfers and had also transferred some of her assets out of the state. The appellees claim that these proceedings sufficiently established “probable cause” for the attachment.

In opposition to the motion for summary judgment the plaintiff submitted affidavits of herself and her former attorney, now her husband. These affidavits stated that any transfers of assets by the plaintiff out of the state took place several years before the attachment was sought; that the plaintiff had at no time wrongfully converted any property of the bank or the Balches; that the plaintiff had not fraudulently transferred any assets out of the state at any time; and that the bank’s president, who executed the original attachment affidavit, had recently sworn under oath that at the time he executed the affidavit for attachment he had no knowledge (contrary to the statements in that affidavit) that the plaintiff was concealing, removing or disposing of her assets.

The trial court concluded that the transcripts of the will contest were sufficient to establish probable cause for the attachment. Had the trial court been acting as the trier of fact we might agree, but in considering the motion for summary judgment we believe the trial court was faced with conflicting versions of the facts and erred in resolving that conflict. Blythe v. Williams, 356 So.2d 334 (Fla. 4th DCA 1978). Also see City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979). The transcripts of the will contest appear to support a finding of probable cause. But the plaintiff’s affidavits-directly contradicted the sworn statements in the bank president’s affidavit upon which attachment was issued. In one of plaintiff’s affidavits it was even asserted that the bank president had, in essence, acknowledged that some of the statements in the attachment affidavit were false. As is often the case, “someone must not be telling the truth” in these conflicting affidavits. However, these conflicts must be resolved by the trier of fact and cannot be resolved by summary judgment. Since we have concluded that there is a genuine issue as to a material fact, there is no need for us to rule on the other issues raised by the appellant.

Accordingly, the final summary judgment is reversed as to both defendants, with directions that further proceedings be conducted in accord with this opinion.

BERANEK, J., and SIEGENDORF, ARDEN M., Associate Judge, concur.


text:
    Theophilus A. MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1035.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Rehearing Denied March 26, 1979.
    Rehearing Denied April 9, 1979.
    Law Offices of Joe N. Unger and Mark King Leban, Miami, for appellant.

      Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   ON RECONSIDERATION, PURSUANT TO REMAND

PER CURIAM.

Subsequent to the filing of our former opinion in this cause, see Martin v. State, 356 So.2d 320 (Fla. 3d DCA 1978), the State of Florida petitioned for certiorari in the Supreme Court of Florida. The Supreme Court granted certiorari and remanded the cause, 364 So.2d 892, for further proceedings consistent with the recent decision of the Supreme Court in Clark v. State, 363 So.2d 331 (Fla.1978).

Pursuant to the order of the Supreme Court, we have allowed the filing of additional briefs by the appellant and the appel-lee, having heard argument, and have reached the conclusion that the Supreme Court’s decision in Clark v. State, supra, must be applied to this appeal and that the application of that decision to the facts of this case requires an affirmance of the decision of the trial court.

Accordingly, having found that no error is presented by the appeal of Theophilus Martin, defendant, the mandate of this court heretofore issued in this cause on March 17,1978 is withdrawn, our opinion in this cause filed July 6,1977, and reported at 356 So.2d 320, is withdrawn and the judgment and sentence heretofore entered in the cause by the trial court are affirmed.

Affirmed.


author: SCHWARTZ, Judge. PEARSON, Judge

text:
    Joe Nathan ROZIER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2639.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Rehearing Denied March 26, 1979.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Margarita Es-quiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Rozier appeals his conviction for the possession of controlled substance paraphernalia. He pled nolo contendere below, reserving the right to challenge the court’s denial of his motion to suppress the paraphernalia — a hypodermic needle and bottle cap “cooker” — which had been secured by a search of his person after an arrest on an outstanding bench warrant. We hold that the motion to suppress should have been granted because the police officers’ initial stop of the defendant, which resulted in the arrest, was based on no more than a “bare suspicion of illegal activity” rather than the “founded” or “reasonable” suspicion constitutionally required to support it. Mullins v. State, 366 So.2d 1162 (Fla.1978), and cases cited; Parker v. State, 363 So.2d 383 (Fla. 3d DCA 1978); Jackson v. State, 319 So.2d 617 (Fla. 1st DCA 1975), cf. State v. Brooks, 281 So.2d 55, 56 (Fla. 2d DCA 1973) (“high crime area” alone insufficient to justify stop). The judgment below is therefore reversed and the cause remanded with directions to grant the motion to suppress.

Reversed and remanded.

PEARSON, Judge

(dissenting).

I think that the facts of this case come properly within the law and reasoning set forth in Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975). As to the principles involved, see State v. Ecker, 311 So.2d 104 (Fla.1975).


author: KEHOE, Judge.

text:
    CUYAHOGA WRECKING CORPORATION and Gray Line Sightseeing Tours, Inc., a/k/a American Transit Corporation, Appellants, v. William MASTRES et al., Appellees.
    Nos. 78-275, 78-360.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Rehearing Denied March 26, 1979.

      Underwood, Gillis, Karcher & Reinert, Daniels & Hicks and Sam Daniels, Miami, Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, for appellants.
    Koltun & Tobias, Coral Gables, Preddy, Kutner & Hardy, Greene & Cooper and Robyn Greene, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellants, defendants below, bring these consolidated appeals from final judgments in favor of appellees in a personal injury and indemnity action. We reverse.

In 1976, appellant Gray Line Sightseeing Tours, Inc., owned a dilapidated and vacant building near downtown Miami. The City of Miami declared the building unsafe and ordered it demolished to ground level. Gray Line entered into a contract with appellant Cuyahoga Wrecking Corporation to do the demolition work which included the removal of a 120 foot high radio antenna. Cuyahoga, in turn, entered into an agreement with appellee Mobile Communications, Inc., to remove the antenna. The agreed price to be paid by Cuyahoga to Mobile was that it could keep the antenna for removing it.

On July 13, 1976, appellee William Mas-tres, a Mobile employee was on the tower dismantling it. Some children on the roof apparently loosened a turnbuckle holding a supporting guy wire, causing the antenna to fall. Mastres was injured in the fall. Thereafter, he sued Gray Line and Cuyaho-ga. Gray Line then filed an indemnity claim against Cuyahoga who filed an indemnity claim against Mobile, Mastres’s employer. The cause was tried by a jury and resulted in special verdicts finding that Mastres was not at fault and entitled to recover $150,022.50 from Gray Line and Cu-yahoga who were respectively 35% and 65% negligent. The jury also found that Gray Line was not entitled to indemnity from Cuyahoga and that Cuyahoga was not entitled to indemnity from Mobile. From the final judgments entered on the verdicts, Cuyahoga and Gray Line appeal.

The pertinent part of the amended complaint filed by Mastres against Gray Line and Cuyahoga alleged:

“7. That on or about February 27, 1976 the Defendant, CUYAHOGA WRECKING CORPORATION, a/k/a WRECKING CORPORATION OF AMERICA, entered into a contract with the Defendant, GRAY LINE SIGHTSEEING TOURS, INC., to do certain demolition work on the property of the Defendant, GRAY LINE SIGHTSEEING TOURS, INC., located at 1740 N.W. 1st Avenue, Miami, Dade County, Florida. A copy of said contract is attached hereto and designated Plaintiff’s Exhibit ‘A’.
“8. That pursuant to the aforesaid contract between CUYAHOGA WRECKING CORPORATION and GRAY LINE SIGHTSEEING TOURS, INC., Mobile Communications, Inc., was hired to dismantle a certain radio tower affixed to the roof of the building located at 1740 N.W. 1st Avenue, Miami, Florida “9. That on or about July 13, 1976, the plaintiff, WILLIAM MASTRES, an employee of Mobile Communications, Inc. was lawfully upon GRAY LINE SIGHTSEEING TOUR INC.’S property for the purpose of dismantling a radio tower affixed to the roof of the building located at 1740 N.W. 1st Avenue, Miami, Florida.”

To this amended complaint, Cuyahoga filed an answer asserting as an affirmative defense:

“That the Plaintiff’s sole recovery herein is covered by Florida Workmen’s Compensation Statute § 440 et seq. The Plaintiff’s exclusive remedy is Workmen’s Compensation and any recovery herein is barred by law.”

Counsel for Mastres moved to strike this defense on the following grounds:

“Plaintiff would respectfully move this Honorable Court to Strike the Fourth Affirmative Defense raised by the Defendant, CUYAHOGA WRECKING CORPORATION, since the Florida Workmen’s Compensation Law, Chapter 440, Florida Statutes, does not preclude a cause of action by an injured employee against a third-party tort feasor, such as the defendants, GRAY LINE SIGHTSEEING TOURS, INC., and CUYAHO-GA WRECKING CORPORATION, and therefore, as a matter of law, said Affirmative Defense should be stricken since it is not material to the Defendants in this case.”

Thereafter, the trial court granted the motion to strike in an order which reads as follows:

“THIS CAUSE, came on to be heard on the Plaintiff’s Motion to Strike the Fourth Affirmative Defense raised by the Defendant, CUYAHOGA WRECKING CORPORATION, on the grounds that the Florida Workmen’s Compensation Law does not preclude a cause of action by an injured employee against a third-party tort feasor such as the Defendants herein, and the Court having argument of counsel and otherwise being fully advised in the premises, it is:
“CONSIDERED, ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike the Fourth Affirmative Defense is granted.”

It is the correctness of this order which Cuyahoga raises in its only point on appeal.

Cuyahoga contends that the trial court erred in striking its defense that workmen’s Compensation was Mastres’s exclusive remedy against it.

When the facts so warrant, a defendant in a personal injury action has available to him the affirmative defense that workmen’s compensation is the plaintiff’s exclusive remedy. Thus, such a defense is a legally sufficient defense in a personal injury action. As this court recently stated in Burns v. Equilease Corporation, 357 So.2d 786 (Fla.3d DCA 1978):

. .A motion to strike a defense tests only the legal sufficiency of the defense. It is reversible error for a trial court to strike a defense where evidence may be presented to support it. See, e. g., Citizens and Southern Realty Investors v. Lastition, 332 So.2d 357 (Fla.4th DCA 1976); Stewart v. Gore, 314 So.2d 10 (Fla.2d DCA 1975); and Windle v. Sebold, 241 So.2d 165 (Fla.4th DCA 1970). . . ” Id. at 787.

In our opinion, in the instant case, the amended complaint and Cuyahoga’s answer raise the possibility that Cuyahoga was a general contractor on the demolition job and sublet a part of its contract work, i. e., removal of the antenna, to Mobile, Mas-tres’s employer. If this proved to be the case, Cuyahoga would be Mastres’s statutory employer and, under Section 440.10, Florida Statutes (1977), workmen’s compensation would be Mastres’s exclusive remedy. Accordingly, we believe that it was reversible error for the trial court to strike Cuya-hoga’s affirmative defense that workmen’s compensation was Mastres’s exclusive remedy. Therefore, the final judgment against Cuyahoga is reversed and the cause is remanded for further proceedings.

Gray Line’s basic contention on appeal is that the trial court erred in refusing to enter a directed verdict in its favor at the close of all the evidence.

Gray Line argues that for Mastres to sustain a cause of action against it, it was necessary among other things, for him to prove the existence of a duty on the part of Gray Line to protect him from the injury of which he complained. See, e. g., Lane Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla.2d DCA 1976). The record shows that Mastres proceeded to trial on the theory that Gray Line had a legal duty to provide him a safe place to work. Based on the facts of this case, we believe that Gray Line had no common law legal duty to provide Mastres with a safe place to work. The Supreme Court of Florida discussed this problem in Jaques v. Miami Ice and Cold Storage Co., 73 Fla. 1193, 75 So. 788 (1917), as follows:

“The very work the plaintiff was engaged to do rendered the place more dangerous as the work progressed. The doctrine of a ‘safe place to work’ has no application in cases like that. The employee assumes the risk by accepting the employment, [citations omitted]. The defendant did not in this case undertake to direct the plaintiff as to how the work should be performed, nor is it alleged that the rotten condition of the timbers in the room were known to the defendant; but the allegation in this particular is that the precaution of a reasonable inspection would have revealed the danger. The nature of the employment required the employee to make such an inspection. Every workman understands that there is more or less danger incident to the destruction of old buildings or the repairing of buildings, and he governs himself accordingly.
“ ‘The relation of master and servant implies no obligation upon the latter to take more care of the servant than he is willing to take care of himself.’ ” Id. at 789-790.

See also, e. g., Quinelly v. Southern Maid Syrup Co., Inc., 164 So.2d 240 (Fla.2d DCA 1964); Lonis v. Flagler Federal Savings & Loan Assoc., 164 So.2d 41 (Fla.3d DCA 1964); and Kagan v. Eisenstadt, 98 So.2d 370 (Fla.3d DCA 1957). We believe that the principles illustrated by these cases are applicable here.

Further, Gray Line argues that the trial court erred in permitting Section 304.2 of the South Florida Building Code, adopted in Dade County by Section 8-1 of the Code of Metropolitan Dade County, to be introduced into evidence. Subsequently, the trial court in reliance upon this Section instructed the jury that a violation of the Code was negligence per se. We believe that, based upon the facts of this case, it was error for the trial court to permit the introduction of Section 304.2 into evidence. The record shows that the effect of this Section was to create by ordinance a duty on the part of Gray Line to Mastres to provide him with a safe place to work, where no such duty existed under the common law. Assuming for the sake of argument the applicability of Section 304.2 in this case, we believe that Mastres was clearly outside the class of any persons afforded any protection by the Section. Here, Mas-tres was injured while performing the duties for which he was hired. Under such circumstances in our opinion, he was clearly not within any of the classes of persons sought to be protected by Section 304.2. Thus, as to Mastres, the Section created no duty for Gray Line to provide him a safe place to work. See deJesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla.1973); Schulte v. Gold, 360 So.2d 428 (Fla.3d DCA 1978); Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla.3d DCA 1976); and Florida East Coast Railway Co. v. Pollack, 154 So.2d 346 (Fla.3d DCA 1963).

Accordingly, because of our determination above that Gray Line owed no duty to appellee Mastres to provide him a safe place to work, the trial court erred when it failed to grant Gray Line’s motion for a directed verdict at the close of all the evidence. Therefore, the final judgment in favor of Mastres against Gray Line is reversed and the cause is remanded with directions to the trial court to enter judgment in favor of Gray Line.

Reversed and remanded with instructions.

PEARSON, J., concurs in the decision only.