author: OVERTON, Justice.

text:
    STATE of Florida and the Taxpayers, Property Owners, and Citizens of Sarasota County, including nonresidents owning property or subject to taxation therein, et al., Appellants, v. SARASOTA COUNTY, Florida, a political subdivision of the State of Florida, Appellee.
    No. 54382.
    Supreme Court of Florida.
    June 28, 1979.

      James A. Gardner, State’s Atty., and Emanuel LoGalbo, Jr., Asst. State’s Atty., Sarasota, and Robert A. Dickinson, Englewood, for appellants.
    Richard E. Nelson of Nelson Hesse Cyril Weber & Smith, Sarasota, for appellee.
   OVERTON, Justice.

This is a direct appeal from a final judgment validating revenue bonds in Sarasota County. We have jurisdiction. The primary issue we must decide is whether section 125.01(q), Florida Statutes (1977), which authorizes the creation of special taxing districts, prohibits or restricts a chartered county from using revenue funds generated from franchise fees collected countywide to finance capital improvements within the special district. We find section 125.-01(q) provides an additional method of financing capital improvements and was not intended to limit the general financing authority of a chartered county.

Sarasota County, in these proceedings, seeks validation of franchise tax revenue bonds not to exceed $1,925,000 which are secured by a pledge of fees derived from a franchise granted by the county to Florida Power and Light Company. The authorizing ordinance further provides that these bonds shall not constitute general obligations or indebtedness as “bonds” within the meaning of the constitution but shall be payable solely from franchise taxes.

The authorizing documents providing for the issuance of the subject franchise tax revenue bonds specifically describe the project to be financed as follows:

1. Extension of the District water system to the Sarasota Springs area within the District.
2. Acquisition and installation of auxiliary pumps for the District water system.
3. Repayment of $300,000 advanced by the issuer to finance the cost of certain improvements in the District water system.
4. Fully funding the reserve account created and established for the benefit of the holders of the outstanding General Obligation Water Bonds, Series 1973, of Special Utility District No. 1 in the issuer [sic] dated June 1, 1973.

Previously, in 1973, the board of county commissioners created Sarasota County Utility District No. 1 pursuant to section 125.01, Florida Statutes. This district includes part but not all of the unincorporated area of Sarasota County. The authorizing ordinance stated that the cost of construction of a water system within the district should be financed in whole or in part by issuance of bonds payable from revenues derived from the system and, in event of deficiency, from ad valorem taxes. The board of county commissioners is the governing body of the district as well as the governing body of the county.

The trial court found that Sarasota County had proceeded properly under chapter 75, Florida Statutes, complying with each provision thereof, and further specifically found that the bonds are revenue bonds to be secured by a pledge of franchise fees derived from Florida Power and Light Company and, as such, are not bonds within the meaning of article VII, section 12, Florida Constitution, and therefore are not required by the constitution to be approved in an election by the qualified electors of Sarasota County. The trial court further found that:

Sarasota County is authorized to issue said revenue bonds, for the purpose of acquiring, constructing, furnishing, equipping, expanding, reconstructing and refinancing county capital projects, including but not limited to, the use of said bond proceeds for the purpose of refunding any bonds or other obligations issued for such purposes, the county being specifically authorized to issue bonds from time to time, the proceeds of which may be expended in any part of the county or in any district now in existence or hereafter created by the county. The proceeds of such revenue bonds may be used and deposited in the sinking fund or reserve account therein established for the payment of any bonds heretofore issued by any district heretofore created .

The court expressly determined that the authorizing ordinances were constitutional and legally proper.

The state attorney contends the bond validation should be denied on the following grounds: First, by creating Special Utility District No. 1 in 1973, pursuant to chapter 125, Florida Statutes, Sarasota County is precluded from using general revenues of the county to finance a revenue bond issue designed to exclusively benefit the special district. The state attorney further asserts that the instant franchise tax revenue bonds are county revenue bonds, governed by chapter 153, Florida Statutes, and cannot be used to provide funds exclusively for the benefit of the existing special district. Second, the state attorney contends that use of general revenues to finance a county revenue bond issue, where proceeds of the bond issue are to exclusively benefit a special utility district, is impermissible because no valid “county purpose” is served. Third, he maintains that instant bond issue will violate preexisting district obligation bond covenants, prior county revenue bond covenants, and therefore the instant bonds should not be validated. This final issue was never presented to the trial court and is raised for the first time on appeal.

We reject all of the contentions of the state attorney and find that this bond issue is proper in all respects.

The purpose of chapter 125 is to allow counties to designate a limited geographic area as a special taxing district and thereby permit that limited geographic area to pay for its own improvements. Once a special taxing district is created, however, counties are not required to finance construction of capital improvements exclusively through the enabling legislation. Rather, the counties retain their power to construct capital improvements within special taxing districts and provide for their payment under their general county financing authority. To hold, as the state attorney urges us to do, that once a county has established a special taxing district it must exclusively look to chapter 125, Florida Statutes, to finance additional capital improvements within the district, would severely limit the county in the orderly development of utility services. Further, the establishment of a municipal special taxing unit under section 125.01(q) would, in fact, become a hindrance rather than a beneficial financing device or vehicle. The contention that by creating the special taxing district the county is now estopped from using other methods of financing is not reflected in any way in the legislation and, in our view, is totally without merit.

We reject the appellant’s second contention that the project does not constitute a valid county purpose because it will benefit only a limited number of county residents. We reach this conclusion for two reasons. First, special taxing districts are essentially financing vehicles rather than full-fledged political entities. See generally Gallant v. Stephens, 358 So.2d 536 (Fla.1978). Thus, the use of county revenues to help finance projects within an intra-county special district does not per se lack a valid public purpose. Second, many capital improvements undertaken by county governments directly benefit only a limited geographic area within the county. For example, in State v. Alachua County, 335 So.2d 554 (Fla.1976), we affirmed a trial court order validating certain special obligation bonds. One challenge raised in that case by the state attorney was that the project undertaken served no valid county purpose. The projects contemplated included, inter alia, road paving projects, development of a recreational area, and improvement of a boys’ club. Id. at 556. Each of these projects which we found served a valid county purpose arguably would primarily benefit only those living in close proximity to the project. We therefore refuse to say that the instant project serves no valid county purpose. We agree with the trial judge that the expenditure for capital projects, the decision as to their location, and the method of financing to be used are necessarily policy decisions for the issuing authority. The judiciary under the facts of this case has no authority to intrude into that political decision.

Under the existing law the function of this Court in a bond validation proceeding is to determine that the authorizing body has the power to act and that it exercises that power in accordance with the intent and purpose of the law.

Finally, we find the assertion, raised for the first time in this Court, that the instant bond issue will violate prior bond covenants is not a proper issue for determination in this proceeding, and the contention is rejected. See Speer v. Olson, 367 So.2d 207, 210 (Fla.1979); State v. City of Sunrise, 354 So.2d 1206, 1210 (Fla.1978).

We find the trial judge was correct in holding that the proposed issue of bonds was authorized by law, and his final judgment validating the bonds is affirmed.

It is so ordered.

ENGLAND, C. J., and ADKINS, SUND-BERG and HATCHETT, JJ., concur.

ALDERMAN, J., dissents.

      . Art. V, § 3(b)(2), Fla.Const.


source: Caselaw Access Project

author: ADKINS, Acting Chief Justice.

license: Public Domain

text:
    FLORIDA GAS COMPANY, a Florida Corporation, Petitioner, v. Paula F. HAWKINS, William T. Mayo, and Robert T. Mann, as and constituting the Florida Public Service Commission, Respondents.
    No. 54627.
    Supreme Court of Florida.
    June 28, 1979.
    R. Y. Patterson, Jr., Gen. Atty., Florida Gas Co., Winter Park, and Lee L. Willis and James D. Beasley of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for petitioner.
    Prentice P. Pruitt, Legal Director, and Donald R. Alexander, Staff Counsel, Florida Public Service Commission, Tallahassee, for respondents.
   ADKINS, Acting Chief Justice.

By petition for writ of certiorari we are asked to review Order No. 8378 entered by the Public Service Commission on June 30, 1978.

This procedure involves an application filed by petitioner Florida Gas Company pursuant to section 366.06(4), Florida Statutes (1977) (The File and Suspend Law), wherein Florida Gas sought the consent of the Commission to new rate schedules designed to generate $2,715,533 in additional annual growth revenue. Florida Gas in its application stated that the 9.67 percent rate of return determined for the Company by the Commission in Order No. 7046 was based on operating data for the calendar year 1974.

Because of inflation since 1974 the Company proposed to change its authorized rate of return so that it could be given an opportunity to earn a fair rate of return. The Company says that its authorized return must be earned under the present economic conditions in order to allow the Company to attract capital on reasonable terms; that present rates and charges are insufficient to cover operating expenses and provide an adequate return on invested capital. The application was bolstered by extensive supporting data.

The pertinent portion of section 366.06(4), Florida Statutes (1977), provides as follows:

Pending a final order by the commission in any rate proceeding under this section, the commission may withhold consent to the operation of all or any portion of the new rate schedules, delivering to the utility requesting such increase, within 30 days, a reason or written statement of good cause for withholding its consent. Such consent shall not be withheld for a period longer than 8 months from the date of filing the new schedules.

When this statute is utilized, the Commission’s alternatives were described in Citizens of Florida v. Mayo, 333 So.2d 1, 4 (Fla.1976), as follows:

(1) If the Commission does not affirmatively act within 30 days to suspend the proposed new rate schedule filed as a part of the request for higher rates, the new rates go into effect automatically on the 31st day following the utility company’s filing. Since the Commission’s inaction is equivalent to its consent to the new rate schedule, no bond is required of the utility and there is no mechanism by which customers of the utility system can ever recover interim charges which, after the full rate proceeding, the Commission may find to have been wholly or partly unwarranted.
(2) If the Commission acts within thirty days to suspend all or part of the tariffs, the utility may not charge its customers the proposed new rates. The Commission’s action is effective on a day to day basis until either (a) it grants full or partial consent to the new rates, or (b) eight months elapse from the date the new schedules were filed. If consent is given before the time expiration, as it was here, the utility may then begin to charge the new rates. Where consent is continuously withheld, the utility may still begin to charge its customers on the new basis after eight months have passed, under bond and record-keeping requirements required by statute.

Thus, as interpreted by this Court, the statute permits the Commission to (1) consent to the new rate schedules on an interim basis pending a final order, (2) suspend the new rate schedules pending the curing of any deficiency noted in the preliminary review of the utilities data, or (3) take no action thereby permitting the new rate to become effective after the expiration of the statutory thirty-day period. The Commission, in its Order No. 8378, listed these alternatives and included a fourth as follows: “(4) dismissal of the application in the event we find the same to be deficient in either form or substance or where other relevant circumstances dictate a dismissal of the proceeding.” (Emphasis added).

Certainly the Commission could dismiss any application which is deficient on its face in either form or substance. However, the question we must decide is whether the Commission may dismiss an application without notice or a hearing “where other relevant circumstances dictate a dismissal of the proceedings.” In its order the Commission points out that the present filing represents the third occasion within the last three years that Florida Gas has sought adjustments. The Commission’s order contained the following:

Like other major public utilities, the applicant files on a monthly basis its actual rate of return on average net investment. This data enables the Commission to monitor and evaluate the earnings of public utilities on a continuing basis to insure that a utility does not earn in excess of its last authorized rate of return. In our analysis of the data prepared and filed monthly by the applicant with this Commission, we observe the fact that its actual rate of return upon average net investment for the 12 months ended December 31, 1977 was 9.66% and since that time has remained at or near that level.

The Commission denied the Company an opportunity to explain the content of the monthly reports in relation to their application for rate increase. Apparently the Commission conclusively presumed the continued presence of all facts upon which the Commission based its decision in a previous rate case. The Commission, in its order, then said:

It is apparent from a review of this data, as well as the data preliminarily filed by the Company, that applicant is now earning a fair and reasonable return upon its investment through revenues generated by its current level of rates. Consequently, we find as a matter of law that administrative efficiency and justice are furthered by obviating any formal rate proceeding at the threshold rather than continuing a futile docket. Such action avoids a proliferation of unnecessary hearings and is consonant with the admonition of the Supreme Court that unnecessary litigation and associated expenses should be avoided whenever possible. Citizens of the State of Florida v. Mayo, 324 So.2d 35 (Fla.1976). We find this procedure to be necessary and reasonable where a preliminary review of pertinent data related to a rate filing clearly indicates the filing is so patently unnecessary as to warrant dismissal within the 30 day statutory period. We further find this procedure to be a necessary power of the Commission in the exercise of our rate-making jurisdiction over public utilities. Commissioner Mann, dissenting, said:
At the present time, the only document in the record is the application of Florida Gas for a rate increase. On its face, it alleges grounds on which the Commission could grant an increase. My colleagues have denied this petition summarily without a hearing on the basis of information received by them and by me in the course of the staff’s continuing surveillance of utility operations. That information is not part of the record. To use it in any way at this time is to prejudge the merits of the petition. This the law does not allow us to do. This company is entitled to due process.
Due process permits expeditious procedures to allow prompt disposition of matters where the facts cannot be reasonably disputed; but it is wrong to go outside of the record the way the majority have done.

In Florida Rate Conference v. Florida Railroad and Public Utilities Commission, 108 So.2d 601, 607 (Fla.1959), this Court observed:

. [W]e have held that where a rate, rule or regulation is made without statutory authority or without giving the carrier affected by it, reasonable opportunity to be heard, or without obtaining or considering any substantial evidence, where investigation, inquiry and evidence are necessary as a basis for the action taken, the proceeding is not had in due course of law and this court will not enforce it. State ex rel. Railroad Com’rs v. Florida East Coast R. Co., 1912, 64 Fla. 112, 59 So. 385, 393.

More recently in Citizens of the State of Florida v. Mayo, supra, the Court reaffirmed the public policy of this state favoring traditional due process rights in utility rate hearings.

When factual matters affecting the fairness of utility rates are being considered by a regulatory commission the rudiments of fair play and due process require that the Company must be afforded a fair hearing and an opportunity to explain or rebut those matters. There can be no compromise on the footing of convenience or expediency, or because of a natural desire to avoid delay, when the minimal requirement of a fair hearing has been neglected or ignored. See Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093 (1937).

This denial of due process requires that Order No. 8378 entered by the Public Service Commission be quashed.

It is so ordered.

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


author: PER CURIAM. SUNDBERG, Justice, ENGLAND, Chief Justice,

text:
    Gerald A. LEWIS, etc., et al., Appellants, v. THE FLORIDA BAR, Appellee.
    No. 54777.
    Supreme Court of Florida.
    June 28, 1979.
    Jim Smith, Atty. Gen. and David K. Miller, Asst. Atty. Gen., Tallahassee, for appellants.
    Carl R. Pennington, Jr. and Everett P. Anderson of Pennington & Wilkinson, Tallahassee, for appellee.
   PER CURIAM.

We have for review by direct appeal the decision of the District Court of Appeal, First District, in The Florida Bar v. Lewis, 358 So.2d 897 (Fla. 1st DCA 1978), holding that the Bar’s requested refund of a documentary stamp tax and penalty should be granted since to impose a tax upon a note given by a tax-immune arm of government is an unconstitutional application of sections 201.01 and 201.08(1), Florida Statutes (1975). We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

The issue before us is whether imposition of documentary stamp taxes, pursuant to sections 201.08(1) and 201.01, Florida Statutes (1975), upon a transaction between The Florida Bar and Barnett Bank of Tallahassee, is an unconstitutional application of these statutes.

We agree with the district court that imposition of the documentary stamp tax upon the transaction between The Florida Bar and the Barnett Bank is an unconstitutional application of these statutory provisions.

The pertinent facts and arguments of the parties are succinctly stated in the opinion of the district court. The district court gave the following rationale for its decision:

The Florida Bar is an arm and part of the judiciary, one of the three co-equal departments of state government. While the Constitution does not expressly provide that the legislature may not tax the judiciary, the purpose of the framers or adopters -of the Constitution may be shown by implication as well as by express provision, and what is implied in a Constitution is as effective as that which is expressed. See State ex rel. Church v. Yeats, 74 Fla. 509, 77 So. 262 (1917); State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739 (1924); Amos v. Matthews, 99 Fla. 1, 126 So. 308 (1930). Constitutional restraint may be found either in the express language employed or in the purpose clearly, though impliedly, evidenced thereby. Amos v. Matthews, supra. To hold that the legislature has the power to tax the judiciary would make a mockery of the separation of powers provision of the Constitution. The judiciary, and the Florida Bar as part of the judiciary, is immune from taxation.
We must turn now to the proposition of whether or not the particular transaction between the tax immune Florida Bar and the Barnett Bank of Tallahassee is a taxable transaction. It is common knowledge that lenders universally require borrowers to assume the burden of any taxes imposed upon a loan transaction. If a borrower is to obtain a loan, he must agree to pay the taxes on the transaction. This is such common practice that the Court can and we do take judicial notice of it. It is apparent under these circumstances that the legislative act, if applied to a transaction between a lender and a tax immune body, constitutes an indirect tax upon the tax immune body. As stated by the Supreme Court in State ex rel. Powell v. Leon County, 133 Fla. 68, 182 So. 639 (1938),
“It is fundamental and elementary that the legislature may not do that by indirect action which it is prohibited by the Constitution to do by direct action.”
To impose a tax upon a note given by a tax immune arm of government is an unconstitutional application of the foregoing statute.

358 So.2d at 899.

We agree with the rationale of the district court, and its decision is, hereby, affirmed.

It is so ordered.

ADKINS, BOYD, OVERTON, HATCH-ETT and ALDERMAN, JJ., concur.

SUNDBERG, J., concurs specially with an opinion.

ENGLAND, C. J., dissents with an opinion.

SUNDBERG, Justice,

concurring specialty-

I concur in the opinion of the majority which adopts the rationale of the District Court of Appeal, First District. However, I believe it important to add one additional ingredient to the rationale of the district court. That ingredient has to do with the nature of the tax here involved. By a consistent line of cases the tax imposed by section 201.01, Florida Statutes (1975), has been construed to be a tax on the “promise to pay.” Plymouth Citrus Growers Association v. Lee, 157 Fla. 893, 27 So.2d 415 (1946); Choctawhatchee Electric Co-operative, Inc. v. Green, 123 So.2d 357 (Fla. 1st DCA 1960); cert. denied with opinion, 132 So.2d 556 (Fla.1961); cert. denied, 369 U.S. 829, 82 S.Ct. 844, 7 L.Ed.2d 794 (1962). If the incidence of the tax is on the maker’s promise to pay embodied in the promissory note, then the legislature may not directly or indirectly impose the tax where the maker, here The Florida Bar, is immune from taxation. In the cited cases imposition of the tax was upheld even though the payee of the promissory note was immune. This was so because the promisor, whose promise to pay supplied the incidence of taxation, did not enjoy immunity. United States v. Lee, 153 Fla. 95, 13 So.2d 919 (1943), cited by appellants, is explicable on the very basis outlined above. In that case the Court traced the history of what was determined to be essentially an excise tax on the sale of gasoline. The Court concluded that even though the dealer in gasoline was authorized to add the tax to the sales price of gasoline sold, the tax was laid on the dealer and not the consumer. Hence, sales to the United States were held not immune.

It is clear to me, then, that the incidence of the tax is of utmost importance. If the taxable incidence arises from the act of an immune entity then no tax may be collected. If the taxable incidence arises from the act of an entity not immune, it makes no difference that the other party to the transaction may enjoy immunity — the tax may be collected.

ENGLAND, Chief Justice,

dissenting.

I must respectfully dissent.

The department of revenue assessed a documentary stamp tax against the Barnett Bank of Tallahassee, not The Florida Bar. The Bar concedes that the bank is taxable since, under section 201.01, Florida Statutes (1975), the issuance of a promissory note is a taxable event and the tax may be imposed upon either the maker of the note or the lender. The bank and the Bar argue, however, that, because the bank’s contract with The Florida Bar contains a standard industry proviso that any documentary stamp tax the bank must pay will be collected from the borrower, the tax has in fact been laid on a tax immune arm of government.

The argument is clever, I admit, but the fact of the matter is that the tax has been laid on the bank alone. How the bank chooses to pass along the burden of its tax, whether by custom, by contract, or by higher profit margins, seems to me immaterial. I, like Justice Sundberg, would look to the legal incidence of the tax, and not to the custom of the trade, to ascertain liability. The incidence of tax on the issuance of a promissory note was quite properly determined by the department of revenue to fall on the Barnett Bank of Tallahassee.

The department did not, as the Bar contends, attempt to circumvent the Bar’s immunity or to do indirectly what it could not do directly when it sought to tax the bank in accordance with section 201.01. It sought only to enforce an unambiguous statute against one of the several persons expressly liable for the tax. It is unprecedented, absurd, and probably unlawful to require the department of revenue to examine the contracts of persons legally subject to the incidence of tax in order to ascertain whether the financial burden of the tax is shifted to another party.

My colleagues have been misled. Until today, the taxability of this type of transaction — where one party to a loan is immune or exempt from tax — was clearly proper in Florida.

      . Section 201.01 provides in pertinent part:
      There shall be levied, collected and paid the taxes specified in this chapter ... by any person, who makes, signs, executes, issues, sells, removes, consigns, assigns, or ships the same, or for whose benefit or use the same are made, signed, executed, issued, sold, removed, consigned, assigned, or shipped in the state. .

      . Section 201.08 provides in part:
      (1) On promissory notes, nonnegotiable notes, written obligations to pay money, assignment of salaries, wages, or other compensation, made, executed, delivered, sold, transferred, or assigned in the state, and for each renewal of the same on each $100 of the indebtedness or obligation evidenced thereby, the tax shall be 15 cents on each $100 or fraction thereof. .

        See 1975 Op. Att’y Gen. Fla. 075-206 (July 15, 1975); 1971 Op. Att’y Gen. Fla. 071-100 (May 12, 1971); 1970 Op. Att’y Gen. Fla. 070-169 (Dec. 4, 1970); 1968 Op. Att’y Gen. Fla. 068-10 (Jan. 19, 1968); 1965 Op. Att’y Gen. Fla. 065-69 (July 15, 1965); 1963 Op. Att’y Gen. Fla. 063-131 (Nov. 4, 1963); 1962 Op. Att’y Gen. Fla. 062-150 (Nov. 8, 1962).


text:
    THE FLORIDA BAR, In re George KASTENBAUM.
    No. 55948.
    Supreme Court of Florida.
    June 28, 1979.
    Elinor P. Smith, Asst. Staff Counsel, Miami, for The Florida Bar.
    Max B. Kogen, Miami, for George Kas-tenbaum, petitioner.
   ADKINS, Acting Chief Justice.

Petitioner George Kastenbaum seeks reinstatement as a member of The Florida Bar. His disbarment resulted from a felony conviction in federal court in 1970.

His civil rights have been restored by executive order of the governor and approved by the cabinet. The referee found that petitioner has established his entitlement to resume the privilege of practicing law and recommended that the petition for reinstatement be granted without requiring petitioner to take the Florida Bar examination.

The Florida Bar supports the petition for reinstatement upon the taxing of costs in the amount of the $150 deposit.

George Kastenbaum is hereby reinstated as a member of The Florida Bar instanter without the need of taking any further examination. Costs in the amount of $150.00 are hereby taxed against the petitioner.

It is so ordered.

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


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. George Baker THOMSON, Respondent.
    No. 56736.
    Supreme Court of Florida.
    June 28, 1979.
    Paul A. Gross, Branch Staff Counsel, Miami, and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    George B. Thomson, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On April 30, 1979, The Florida Bar filed its Petition alleging:

1. On July 16, 1977, the Eleventh Circuit Grievance Committee “F” filed its report with The Florida Bar finding respondent guilty of minor misconduct and entered an order of Private Reprimand. In that report, the committee found that respondent engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in that he wilfully and knowlingly [sic ] failed to file an income tax return to the District Director of Internal Revenue, or to any other proper officer of the United States for the year 1970. The committee also found respondent guilty of committing an act contrary to honesty, justice, or good morals in misconduct constituting a misdemeanor. Respondent was convicted of a criminal misdemeanor for failure to file an income tax return for the aforementioned year.
2. The Board of Governors of The Florida Bar rejected the grievance committee’s recommendation for Private Reprimand.
3. On April 3, 1979, respondent GEORGE BAKER THOMSON submitted to The Florida Bar his Conditional Guilty Plea. ... In his plea, the respondent agrees to a public reprimand by the Court to be published in the Southern Reporter.
4. By his plea, Mr. Thomson admitted that he failed to file an income tax return for the year 1970, a federal criminal misdemeanor.
5.On or about March 17, 1978, the Board of Governors of The Florida Bar voted to approve a' Conditional Plea for Consent Judgment for a Public Reprimand, if it should be submitted by the respondent.

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, George Baker Thomson, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $100.00 are hereby taxed against the Respondent.

It is so ordered.

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


author: PER CURIAM. ANSTEAD, Judge,

text:
    PAN AMERICAN BANK OF ORLANDO, Appellant, v. Anne J. YANOW, etc., et al., Appellees.
    No. 77-1905.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1979.
    Rehearings Denied July 26, 1979.
    Winifred J. Sharp and Michael G. Williamson of Johnson, Motsinger, Trismen & Sharp, Orlando, for appellant.
    Irving B. Gussow, Casselberry, for appel-lee Yanow.
   PER CURIAM.

AFFIRMED.

BERANEK, J., and JOHNSON, TOM, Associate Judge, concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

This is an appeal from a final judgment in favor of appellee and against the appellant as a result of appellant’s payment on a check upon which the endorsement of ap-pellee, the payee of the check, had been forged. In an attempt to limit its liability, the appellant presented evidence that it had acted “in good faith and in accordance with the reasonable commercial standards applicable” as provided in Section 673.419(3), Florida Statutes (1977). Unlike the case of Barnett Bank of Miami Beach v. Lipp, 364 So.2d 28 (Fla.3d DCA 1978), the appellant did present expert testimony establishing “reasonable commercial standards.” However, the statute also requires a finding of good faith and although a close question is presented, I believe there is sufficient evidence to support the trial court’s conclusion that the circumstances surrounding the transaction established that the bank did not act in good faith and in accordance with reasonable commercial standards so as to limit its liability.


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. O. C. “Sonny” KING, Appellee.
    Nos. 78-1748, 78-1749.
    District Court of Appeal of Florida, Second District.
    June 1, 1979.

      Jim Smith, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Raymond E. LaPorte, Tampa, for appel-lee.
   SCHEB, Judge.

The state appeals the dismissals with prejudice of two informations against ap-pellee King who was charged with a single count of bookmaking in each information. The information in circuit court case no. 77-8902 charged that King engaged in bookmaking between November 23 and December 17, 1977, while the information in case no. 77-8903 charged that he engaged in bookmaking on December 5, 1977. The dismissals were predicated upon the state’s failure to timely comply with the court’s discovery orders. We reverse because dismissal under the circumstances in these cases was too severe a sanction.

On March 14, 1978, King filed a motion to dismiss the informations, which were consolidated at the trial level, on the ground that they were too vague to inform King of the charges against him. King also filed a demand for discovery seeking to determine whether there had been any electronic surveillance, including wiretapping, of his premises or conversations to which he was a party. He also sought documents relating to any such surveillance. In addition, King filed a motion for a bill of particulars as to circuit court case no. 77-8902, stating the exact date of the charged offense. On March 31 the state filed a bill of particulars stating the date of the offense. On April 3 King filed a motion to compel the immediate production of any documents relating to the various taped telephone conversations disclosed in the state’s response to the demands for discovery. On April 5 he filed a motion to compel the immediate production of copies or accurate .transcripts of the tapes of the telephone conversations.

A hearing on the motions was held on May 25. At the hearing, defense counsel complained that the date of bookmaking alleged in the information in case no. 77— 8902 should be more specific and that the persons from whom King allegedly accepted bets should be named. The trial court agreed and ordered the state to name the persons involved and to “be more precise in the date the bets were placed.” The court also ordered the state to amend the information in case no. 77-8903. Defense counsel asked if there was a time limit within which the informations must be amended. In response, the prosecutor asked for “a couple of weeks.” Additionally, defense counsel requested a copy of the order authorizing the wiretap involving King and asked that he be permitted to listen to the tape or tapes of the wiretapped conversations. The trial court directed that the state comply with these requests “within the two-week period.” Unfortunately, the trial court did not enter a written order on the motions to compel production. The motion to dismiss, however, was stamped “denied.”

On September 6 King filed a motion to correct the record to reflect the true disposition of these motions and a supplemental motion to dismiss partially on the grounds that the informations had not been amended as ordered and that the documents sought in the motion to compel production had not been produced, despite the expiration of the two-week period. A hearing on these motions was held on September 13. The state also sought rehearing on the ruling of May 25 requiring amendment of the information in case no. 77-8902. In seeking a rehearing, the state relied on State v. Barnett, 366 So.2d 411 (Fla.1978). After considering Barnett, the trial court agreed that the other persons involved need not be named in the information in case no. 77-8902, but reaffirmed its requirement that the date of the offense be specified.

The judge then asked the prosecutor why he had not complied with the court’s ruling within two weeks. The prosecutor replied:

I don’t believe we were ordered to do so. I believe you suggested two weeks. I believe the court record there suggested two weeks. I believe if the State files it within a reasonable time and it does not prejudice the defendant, then we are within the time limit. The defendant can show no prejudice by this filing or not filing.

After consulting a transcript of the May 25 hearing, the court concluded that the state had been given a two-week limit within which to comply.

The court then questioned the prosecutor as to why King’s counsel had not received the order authorizing the wiretap and the wiretap evidence. The prosecutor responded that the order authorizing the wiretap had only recently been made available to him but that he now had a copy available for defense counsel. The tapes were also available, although defense counsel indicated that he had been contacted only within the last few weeks to arrange to hear the tapes. Defense counsel stated that the prosecutor should have informed the court at the earlier hearing of any difficulties anticipated in obtaining the documents. The trial court agreed and dismissed both informations with prejudice for the state’s failure to timely amend the information in case no. 77-8902 and for its failure to produce the documents relating to taped conversations in both cases.

While a trial court has the authority to dismiss a cause as a sanction for failure to comply with a court order or for violation of a discovery rule, Fla.R.Crim.P. 3.220(j), State v. Oliver, 322 So.2d 638 (Fla.3d DCA 1975), the dismissal of charges against a defendant is an extreme sanction and one that should be utilized with caution and only when a lesser sanction would not accomplish the desired result. State v. Smith, 342 So.2d 1094 (Fla.2d DCA 1977). Further, before dismissal of an action for the prosecution’s violation of a rule of discovery, the court must find that noncompliance with the particular rule resulted in prejudice to the defendant. Collier v. State, 353 So.2d 1219 (Fla.3d DCA 1977). See also Richardson v. State, 246 So.2d 771 (Fla.1971).

Here there was no suggestion of prejudice to King. He had waived his right to a speedy trial under Fla.R.Crim.P. 3.251 and a trial date had not yet been set. The state had neither failed nor refused to provide the discovery material sought, although it was inexcusably late in making such material available to King. As to failure to amend the information in case no. 77-8903, the trial judge agreed that one of the amendments originally ordered was unnecessary. While requiring specification of the date the offense occurred was appropriate, King had not been prejudiced by the failure to make this amendment, since the date had been specified in a bill of particulars.

A further reason for holding the trial court’s action to be an abuse of discretion is that the state’s failure to timely comply with the court’s oral order was not shown to be willful. This case illustrates that the better practice would have been for the court to enter a written order setting forth precisely what the prosecution was required to do and the time permitted to accomplish it. Due to the lack of a written order and the ambiguity of the discussion concerning the time limit, it was apparently unclear to the prosecutor how much time he had to comply with the court’s instructions. Given this apparent confusion, coupled with the lack of any demonstrable prejudice to King, the trial court’s dismissal of the informations was too severe a sanction and constituted an abuse of discretion.

Accordingly, we vacate the order of dismissal in both cases. We remand with directions to reinstate the information in case no. 77-8903 and, if the trial court still feels it is warranted, to reenter a dismissal of case no. 77-8902, with leave to amend as to the specific date.

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


text:
    Donald James BRUZZESE and Fred Deleo, Appellants, v. STATE of Florida, Appellee.
    Nos. 78-1398, 78-1399.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Rehearing Denied Aug. 1, 1979.
    J. David Bogenschutz of Varón & Stahl, P. A., Hollywood, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and DAUKSCH, J., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

j concur on the authority of State v. Farrington, 338 So.2d 81 (Fla. 4th DCA 1976); State v. Yenke, 288 So.2d 531 (Fla. 4th DCA 1974), and Koptyra v. State, 172 So.2d 628 (Fla. 2d DCA 1965).


author: OTT, Judge.

text:
    In re The ESTATE of Homer Eugene OXFORD, Deceased.
    No. 78-895.
    District Court of Appeal of Florida, Second District.
    June 8, 1979.

      Samuel G. Crosby of Miller & Sweat, Lakeland, for appellant.
    A. H. Lane of Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lakeland, for appellee.
   OTT, Judge.

The issue is whether there was an abuse of discretion in the trial court’s finding of “good cause” pursuant to § 733.705(3), Fla. Stat. (1976). We hold that there was no abuse of discretion.

Homer Eugene Oxford died in July 1977. In his will he devised his entire estate to his brother, Lon D. Oxford, Sr., the personal representative of the estate and the appellant herein.

On January 30, 1978 the Oxford Lumber Company (appellee herein) filed a statement of claim against the estate. The claim was founded upon a long term open account between the decedent and the corporation and was in the amount of $23,-170.47.

On February 7, 1978 the personal representative served his objection to the claim by serving the attorney for the corporation (Ned F. Sinder, Esq.) by mail. The attorney thereafter conferred with the president of the appellee corporation (T. J. Oxford, Jr.) at which time he advised Oxford of the service of the objection and further advised that other counsel should be employed to bring an independent action on the claim within thirty days pursuant to § 733.705(3). Oxford promptly secured other counsel to file the necessary action. The objection itself, however, was not delivered to or otherwise brought to the attention of the second law firm.

The independent action was filed March 28, 1978. This is nineteen days overdue. On April 10, 1978, a Petition for Extension of Time to File Independent Action was filed wherein the appellee gave the following reasons for the nineteen day delay:

4. Ned F. Sinder, Esq., thereafter timely advised the Petitioner that it would be necessary that an independent action be filed within thirty (30) days from February 7,1978, and suggested that the Claim be handled by the Petitioner’s undersigned attorneys who were primarily engaged in other litigation. involving the estate.
5. T. J. Oxford, Jr., thereupon conferred with his undersigned attorneys and delivered copies of the various delivery tickets, invoices, etc., supporting the amount and accrual of the Claim but he did not perceive the legal significance of disclosure to his undersigned attorneys that the Objection had been filed and served and it was not until March 28, 1978, upon examination of the probate file for other purposes that counsel discovered that the objection had been filed.

The lower court granted the extension of time to file an independent action. We affirm for the reasons hereinafter stated.

In Exchange National Bank of Winter Haven v. Field, 338 So.2d 889 (Fla. 2d DCA 1976) the creditors therein delayed filing their suit on the ground that they wanted to wait until the inventory was filed to see whether there would be sufficient assets in the estate. The specific dates at issue were as follows:

May 12: Claim filed by creditors.
May 20: Objection by personal representative.
June 27: Deadline for independent action.
August 29: Inventory filed by personal representative (after extension).
December 5: Motion for Extension of Time alleging that there was required additional time in order to file the actions.

Judge Boardman of this court held that there was an absence of good cause to justify the extension of time. Judge Boardman pointed out that the general rule in Florida was promulgated in In Re Goldman's Estate, 79 So.2d 846 (Fla.1955). He noted that the Florida Supreme Court there “restricted good cause for an extension to ‘a substantial reason’ which constitutes a legal excuse.” 338 So.2d at 890. Judge Boardman also noted that the absence of good cause was “particularly apparent in that appellees did not file their suits until more than three months after the inventory was filed.” Id.

In In Re Goldman's Estate, supra, the facts were as follows. The claim against the estate was filed on November 24, 1953 by a party injured in an automobile accident with the decedent. Objections were filed immediately, on November 28, 1953. However, it was not until October 13, 1954 —almost one year later — that the claimant filed a petition for extension of time. The basis for relief cited by the claimant was two-fold, namely, that (1) the claimant had to undergo an additional operation and they wanted to wait to see the results; and, (2) that claimant’s attorneys were unaware of an amendment to the statute which shortened the time within which the claimant had to act from twelve months to two months.

The supreme court pointed out that the claimant’s interpretation of the existing law was erroneous in that the existing law [the amendment hardly changed anything] was to the effect that when an objection to a claim was made, the two month period was applicable. With reference to good cause, the Goldman court held as follows:

[A] cause sufficient to authorize an extension of time for filing suit must be a “good cause,” by which it is meant that “the adjudication is to be governed by a given standard of judicial action.” 79 So.2d at 848.

The court then promulgated the rule which stands today:

“[A] substantial reason, one that affords a legal excuse,” or a “cause moving the court to its conclusion, not arbitrary or contrary to all the evidence,” and not mere “ignorance of law, hardship on petitioner, and reliance on [another’s] advice.” Id.

With reference to judicial discretion, the court in Ellard v. Godwin, 77 So.2d 617, 619 (Fla.1955) stated:

The power vested in the county judge under the statute to extend the time provided in the statute in given cases is limited to those instances in which good cause is made to appear to the county judge. This is not an unbridled power by any means. The exercise of such power is a judicial act and involves the exercise of judicial discretion. Judicial discretion, as we pointed out in Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241, 247, “does not imply that a court may act, or fail to act, according to the mere whim or caprice of the presiding judge, but it means a discretion exercised within the limits of the applicable principles of law and equity, and the exercise of which, if clearly arbitrary, unreasonable, or unjust, when tested in the light of such principles, amounting to an abuse of such discretion, may be set aside on appeal.”

See In Re Estate of Herskowitz, 342 So.2d 530, 531-32 (Fla. 3d DCA 1977).

In Smoak v. Graham, 167 So.2d 559 (Fla.1964) the supreme court held that “[t]he discretion exercised by the probate court under the statute is, of course, to be reasonable in character, not arbitrary or absolute.” 167 So.2d at 562. See In Re Estate of Sale, 227 So.2d 199 (Fla.1969). We hold that the exercise of discretion herein comported with the standards set by Florida courts. It was reasonable.

The case law of Florida is clear that the time limitations prescribed by the applicable statute for the filing of objections to claims against an estate and for filing an appropriate action or suit upon any such claim operate merely as rules of judicial procedure and not as statutes of nonclaim. In Re Estate of Sale, supra; In Re Goldman’s Estate, supra; In Re Jeffries’ Estate, 136 Fla. 410, 181 So. 833 (Fla.1938). They are designed to foster an orderly and expeditious administration of estates but should not be arbitrarily applied so as to deny substantial justice.

As was stated in In Re Estate of Sale, supra, “[tjhese time limitations may be relaxed, within the sound discretion of the probate judge, even though the time limit may have expired prior to the filing of the motion for extension.” 227 So.2d at 201. We hold that in the instant case the time limitations for the filing of the independent action were properly relaxed. No claim is made that the delay could result in prejudice or hardship to the appellee.

The order of the trial judge is affirmed.

HOBSON, Acting C. J., and RYDER, J., concur.


author: GRIMES, Chief Judge.

text:
    Sam KUGEARES, Petitioner, v. CASINO, INC., Respondent.
    No. 78-2037.
    District Court of Appeal of Florida, Second District.
    June 8, 1979.
    Rehearing Denied July 18, 1979.
    Gary P. Gormin, of Gormin, Geoghegan, Easley & Gránese, P. A., Clearwater, for petitioner.
    John L. Riley, St. Petersburg, for respondent.
   GRIMES, Chief Judge.

This case presents the question of whether the county court has jurisdiction in a proceeding by a landlord to regain possession of leased real property for violation of the lease when the tenant’s violation does not involve a default in rent or a holdover after the expiration of the term of the lease.

The petitioner (landlord) rented certain business property to respondent (tenant) pursuant to a written lease. The landlord brought suit in county court to regain possession of the property, contending that the tenant had breached the lease in several particulars. The county court ruled that the landlord was entitled to regain possession because the tenant had erected two structures in violation of the provisions of the lease, and it entered a judgment of eviction. On appeal by the tenant, the circuit court held that the county court had no jurisdiction over the subject matter and vacated the judgment of eviction. The landlord filed a petition for certiorari seeking review of the order of the circuit court.

In order to determine the appropriate jurisdiction of this proceeding, we look first to our state constitution. In holding that the county court had no jurisdiction, the circuit court reasoned that Article V, Section 20(c)(3) conferred upon the circuit court “exclusive original jurisdiction, inter alia, in ‘all cases in equity’ and ‘in all actions involving the titles or boundaries, or right of possession of real property.’ ” However, the schedule to Article V in Section 20 does not control our decision because the enumeration of jurisdiction contained in that section is conditioned on subsection (c) thereof which provides:

After this article becomes effective, and until changed by general law consistent with Sections 1 through 19 of this article

Art. V, § 20(c), Fla.Const. Because there is general law consistent with Sections 1 through 19, the provisions of Section 20 no longer control.

Section 6(b) of Article V provides that county courts shall exercise the jurisdiction prescribed by general law. Section 5(b) of Article V specifies that circuit courts shall have original jurisdiction not vested in the county courts. Thus, we examine the general law.

Section 34.011, Florida Statutes (1977), provides in pertinent part:

(1) The county court shall have jurisdiction concurrent with the circuit court to consider landlord and tenant cases involving claims in amounts which are within its jurisdictional limitations.
(2) The county court shall have exclusive jurisdiction of proceedings relating to the right of possession of real property and to the forcible or unlawful detention of lands and tenements, except as provided in s. 26.012. (Emphasis supplied.)

Section 26.012, Florida Statutes (1977), outlines the jurisdiction of the circuit court. The types of cases most nearly applicable to the instant suit are:

(2) They [circuit courts] shall have exclusive original jurisdiction
(c) In all cases in equity . . . except traffic offenses . . . ;
(f) In the action of ejectment; and
(g) In all actions involving the title and boundaries of real property.

Significantly, Chapter 74-209, Laws of Florida, transferred jurisdiction over the “right of possession of real property” from the circuit court to the county court. The title of this bill indicated that its purpose was to remove jurisdiction in landlord and tenant possession cases from the circuit court and to vest jurisdiction of these cases exclusively in the county court.

The case at hand clearly involves the right of possession of real property. Therefore, the suit lies in the county court unless it falls within the jurisdiction specified in Section 26.012. Referring to Section 26.012, it is evident that the suit does not involve the title or boundaries of real property. While it could be argued that this suit is somewhat similar to an action for ejectment or that it has certain equitable characteristics, we believe that Chapter 74-209 represents a legislative determination to give the county courts jurisdiction of all suits in which the landlord seeks to regain possession of leased premises unless the suit clearly falls within the enumerated jurisdiction of the circuit court. Therefore, we hold that this suit was properly filed in county court.

It does not matter that the suit was not based upon a default in rent or upon the tenant’s holdover, the two grounds for regaining leased property over which the county court is given jurisdiction under Sections 83.20-83.251, Florida Statutes (1977). The county court has additional jurisdiction over landlord-tenant matters by virtue of Section 34.011(2).

The petition for certiorari is granted, and the order of the circuit court is quashed. The case is remanded to the circuit court to consider the tenant’s appeal on the merits.

HOBSON and DANAHY, JJ., concur.


text:
    S. J. LANDAU CORPORATION, Appellant, v. ESTATE of Daniel J. RIESNER, Deceased, Appellee.
    No. 78-1737.
    District Court of Appeal of Florida, Second District.
    June 13, 1979.
    Robert P. Rosin and Daryl Brown of Rosin, Abel, Band, Rosin & Brown, Chartered, Sarasota, for appellant.
    Charles D. Bailey, Jr. of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for ap-pellee.
   GRIMES, Chief Judge.

This is an appeal from an order striking the claims of appellant S. J. Landau Corporation against the Estate of Daniel J. Ries-ner.

In 1971 Mr. Riesner entered into a five year lease of property in New York City from Landau. Upon Mr. Riesner’s death on April 5, 1973, the Circuit Court of Sarasota County appointed appellee executrix of his estate. On August 13, 1973, Landau timely filed a claim against the estate asserting defaults in rent and claiming rentals under the lease of $226,086.97 for the balance of the term. The executrix filed a timely objection to the claim. In the meantime Landau filed suit in New York against the executrix seeking to recover the rentals under the lease.

Thereafter, the parties reached an agreement to settle the New York litigation. The executrix filed a petition in the Florida court requesting approval of a memorandum of understanding which provided for the entry of a New York final judgment on consent in favor of Landau in the sum of $46,349.27 and the recognition of this judgment by the executrix as a valid claim against the estate for rent through June 30, 1974. While the judgment provided for the removal of the executrix as a tenant, the terms of settlement specified that Landau did not waive any claims for rentals which might be due under the lease subsequent to June of 1974. On September 12, 1974, the court entered an order approving the settlement which stated:

The executrix shall recognize said judgment as a claim against the estate under the terms and conditions contained in the aforesaid petition and the attachments thereto upon the filing of a certified copy reflecting that the same judgment has been entered by the civil court in and for the City of New York.

The New York court later entered judgment, and a certified copy was filed in accordance with the Florida court’s order.

On January 12, 1976, Landau filed another claim against the estate for rent due under the lease from July 1, 1974, to August 31, 1975. The executrix timely filed an objection to the new claim, but Landau did not file suit on the new claim. Indeed, Landau never brought an action in Florida upon either of its claims, and the estate never paid any money to Landau. On July 18, 1978, the executrix petitioned for a determination of the status of Landau’s claims asserting that each had lapsed by reason of the passage of time. The court struck not only the second claim but also the original claim for $46,349.27. The following portion of the court’s order reflects the reasons for its holding.

[I]t appearing to the Court that action on the first claim of S. J. Landau Corporation was commenced in New York State- and that the same was on stipulation dismissed and that no further action was commenced thereafter as required by Florida Statute 733.18, requiring the claimant to file suit within sixty (60) days from date of objection and, therefore, the court has jurisdiction to strike the claim and further, no other proceedings for the enforcement or compulsory payment of such claim within the requisite three year period for such action was commenced, and that the second claim of S. J. Landau Corporation was not timely filed and was properly objected to;

In reviewing this order, we shall consider the claims separately.

FIRST CLAIM

Section 733.18(2), Florida Statutes (1971), which was then in effect, specified that a claimant must file suit on his claim within two months from the filing of a timely objection. The statute contained no requirement that the suit be filed in Florida. Hence, Landau’s action in New York constituted sufficient compliance with this requirement. Moreover it can hardly be said that the parties stipulated to the dismissal of the New York action since that suit culminated in a judgment in favor of Landau.

The court’s mention of the three year period for taking action referred to Section 733.211(1), Florida Statutes (1971), which read as follows:

(1) Whenever anyone shall have filed a claim against any estate in any probate proceedings in this state, in accordance with this chapter, and which claim has not had objection filed thereto or has not been paid, settled or otherwise disposed of and no proceeding is pending for the enforcement or compulsory payment thereof, then at the expiration of three years from the date such claim is filed such claim shall be forever barred and foreclosed and have no further force or effect and no proceeding or action shall thereafter ever be brought for enforcement or payment of same. This section shall not affect the lien of any duly recorded mortgage or the lien of any person in possession of personal property or the right to foreclose and enforce such mortgage or lien.

Under the wording of the statute, the three year limitations period was not applicable where a claim had been “settled or otherwise disposed of.” We believe that the approval of the settlement of the New York litigation and the recognition of the New York judgment constituted a settlement for purposes of this statute. By its specific terms, the settlement agreement did not require the executrix to pay the judgment until the administration had been completed and it was determined that there were enough assets to do so. Hence, there would have been no purpose for Landau to commence further proceedings in Florida within the three year period. Therefore, we hold that Landau has a valid claim against the estate for $46,349.27 payable according to the terms of the settlement.

SECOND CLAIM

Landau’s second claim stands on a different footing. Even if we were to assume that Landau timely filed the claim of January 12, 1976, as a supplement to its prior claim, the executrix properly objected to the new claim and Landau did not bring suit within two months of the objection. Hence, the second claim was barred by Section 733.18(2).

Accordingly, we reverse that portion of the order striking Landau’s claim for $46,-349.27. Otherwise, the order stands affirmed.

BOARDMAN and SCHEB, JJ., concur.


text:
    LOCAL CONSUMER ENTERPRISES CORP., a Delaware Corporation, Appellant, v. Ross C. F. HADLEY, Appellee.
    No. 78-1992.
    District Court of Appeal of Florida, Second District.
    June 13, 1979.
    Rehearing Denied July 12, 1979.
    Andrew J. Britton of Isphording, Payne, Korp & Muirhead, P. A., Venice, for appellant.
    W. Russell Snyder, Venice, for appellee.
   PER CURIAM.

Affirmed without prejudice to the appellant’s right to seek to set aside the default and final judgment by motion filed pursuant to Fla.R.Civ.P. 1.540.

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


author: BOARDMAN, Acting Chief Judge.

text:
    Darryl Raymond LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 78-521.
    District Court of Appeal of Florida, Second District.
    June 15, 1979.

      James C. Alfonso, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant/defendant Darryl Raymond Lopez appeals his conviction of murder in the first degree and his sentence of life imprisonment with a mandatory term of twenty-five years without parole.

He raises four points on appeal, only one of which we need to discuss. That point is whether the trial court committed reversible error in allowing the state to introduce into evidence tape recordings of a conversation between an informant and appellant, absent testimony from either party that the recordings were made with his consent. This point has caused great concern, particularly in view of our supreme court’s decision in Tollett v. State, 272 So.2d 490 (Fla.1973).

Detectives Wm. Brown and Irving Carpenter testified that they met the informant at the Holiday Inn East on April 14, 1977, where he signed a written consent form authorizing the Tampa Police Department to listen to and record any conversation between him and appellant held that day in Room 180 of the motel. The consent form was introduced into evidence at trial.

There is no evidence in the record that shows the consent to have been involuntary or unknowing. However, prior to trial, appellant filed a motion to suppress attacking the validity of the consent upon the basis of which the tape recordings were made. Grounds for the motion were that the informant had given defense counsel a sworn statement in which he averred that both he and appellant had taken various narcotics immediately before and during the time the tapes were being made and that his continued cooperation with the police had been coerced. At the hearing on the motion the informant denied having been at the Holiday Inn East on April 14, 1977, and refused to answer any further questions, invoking his fifth amendment privilege under the United States Constitution. He also refused to testify at appellant’s trial. The motion to suppress was denied, and defense counsel’s objection at trial to introduction of the tapes into evidence was overruled.

The majority opinion in Tollett holds that consent to intercept oral communications cannot be established by the testimony of police officers alone, but must be corroborated by the testimony of one of the parties to the communication. See also Aalderink v. State, 353 So.2d 172 (Fla. 2d DCA 1978).

In neither Tollett nor Aalderink did there exist a written consent form; in each case, police testified as to the consent of the informant who was a party to the communication. Thus it might appear that a written consent form, such as was obtained in the instant case, would be sufficient to satisfy the ToUett requirements concerning the necessary safeguards of authentication. We do not believe so, however. Our supreme court in Tollett justifiably placed great emphasis upon the right of defense counsel to cross-examine the party to the communication as to his alleged consent. It is obvious that denial of the opportunity to cross-examine the consenting party prevents inquiry into the voluntariness of the consent, which was placed in issue here. As we read and interpret Tollett, law enforcement officers would be well advised to obtain a valid warrant prior to intercepting conversations to avoid a situation such as this, which could all too often arise.

The recent decision in Zuppardi v. State, 367 So.2d 601 (Fla.1978), relied on by the state, is inapplicable here. There a wiretap was authorized on the basis of a telephone conversation between a confidential informant and the defendant that a police officer had listened to with the alleged consent of the informant. The defendant moved to suppress the wiretap evidence, arguing that the informant should have been identified and produced for cross-examination as to whether consent was freely given before the court authorized the wiretap. The telephone conversation giving rise to the wiretap authorization was not taped, nor were its contents introduced into evidence at the defendant’s trial. The supreme court thus found Tollett distinguishable and stated at 605: “In effect, appellants urge us to extend the Tollett decision to require that the state prove consent even when the product of the eavesdropping is used solely in an affidavit to establish probable cause. We decline to so broaden the rule.”

After carefully considering the record and hearing full discussion by the attorneys, we have no alternative in light of Tollett but to reverse the trial court’s ruling admitting the tapes into evidence and the judgment of conviction.

We find it unnecessary to discuss point two, and points three and four are without merit.

REVERSED and REMANDED.

SCHEB and OTT, JJ., concur.


author: HENDRY, Judge.

text:
    In re ESTATE of Agnes V. ROBERTSON, Deceased. Gerry K. ROBERTSON and Bradley L. Robertson, Appellants, v. Alice Carey GALLAGHER, Appellee.
    No. 78-1197.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Rehearing Denied July 26, 1979.

      David B. Birenbaum, San Francisco, Cal., Joseph Beeler, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Joseph F. Jennings, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   HENDRY, Judge.

By this appeal, we review the order of the trial court denying appellants’ petition for revocation of the order admitting will to probate.

The decedent, Agnes V. Robertson, a ninety-year old widow at the time of death in 1975, by provisions of her last will and testament left the bulk of her estate to her granddaughter, appellee herein — leaving nothing to her two grandsons, appellants. In July of 1975 the Circuit Court of Dade County, Probate Division, ordered the subject will and codicil to be admitted to probate. In December of that year the appellants-grandsons filed their petition seeking revocation of the court’s order. After trial was had, the court entered its order affirming and ratifying in all respects its previous order admitting said will and codicil to probate, and affirming and ratifying the previous issuance of Letters Testamentary to appellee.

On appeal, the grandsons' primary and crucial contention is that the trial court erred in its finding that the presumption of undue influence was not raised. The trial court made the following findings of fact and conclusions of law, as stated in pertinent part in its order now under review:

“The Court finds:
“1. The parties stipulated that the Last Will and Testament of Agnes V. Robertson dated the 7th day of October, 1974, and the Codicil thereto dated the 26th day of June, 1975, were executed by the decedent in accordance with the laws of the State of Florida.
“2. At the time of the execution of the Will and the Codicil thereto, the decedent was a ninety (90) year old widow whose children, a son and a daughter, had predeceased her. The petitioning contestants are the decedent’s grandsons, the children of her deceased son. The respondent-proponent is the decedent’s granddaughter, the child of her deceased daughter. The grandsons are and at all material times were residents of California. The granddaughter is and at all material times was a resident of Miami, Florida. Of her three (3) grandchildren, the decedent was closest to her granddaughter, Mrs. Gallagher. When Mrs. Gallagher was a child, she lived across the street from her grandmother and eventually moved into her grandmother’s home. Thereafter and up to the time of Mrs. Gallagher’s second marriage to a man her grandmother did not approve of, the two were frequent visitors in each other’s home. The decedent provided all of Mrs. Gallagher’s education, and gave her gifts of expensive homes, automobiles and jewelry. Although the decedent had executed a Will in 1968 which made provision for all three (3) grandchildren, she became unhappy in 1974 with her grandsons and decided to leave everything she could to Mrs. Gallagher, whose own mother had left nothing of her estate to Mrs. Gallagher.
“3. Beginning in 1971, the decedent, who was then a resident of Shamokin, Pennsylvania, spent most of her time in Miami, Florida. In May of 1974, she became seriously ill and was hospitalized from May until the middle of July, 1974. For a period of time during this hospitalization, she was near death. However, she made a remarkable recovery considering her age and frail physique and upon her discharge from the hospital, she moved into her granddaughter’s condominium apartment. Although the decedent was physically frail after her discharge from the hospital in July, she nevertheless retained her strong will and mental alertness up to and including the execution of her Will on the 7th day of October, 1974, and the Codicil thereto on the 26th day of June, 1975.
“4. A confidential relationship existed between the granddaughter, Mrs. Gallagher, and the decedent at all times material hereto.
“5. Mrs. Gallagher was not active in procuring the execution of the Last Will and Testament or the Codicil thereto of the decedent. The decedent’s Last Will and Testament and the Codicil thereto were prepared at the decedent’s request by Mr. John C. McKay, Jr., an attorney the decedent had selected. The arrangements for the execution of the Will, which was audio-videotaped, and the Codicil were made by the decedent’s attorney. The decedent’s treating physician was a witness to the execution of the Will by the decedent. The decedent’s mind at the time of the execution of the Will was unimpaired by medication or drugs and she then understood the extent of her estate and the object of her bounty. There is no evidence that she was less competent at the time of the execution of her Codicil. The decedent’s Will and Codicil were kept by Mr. McKay from the date of the execution to the date of death of the decedent and Mrs. Gallagher did not have possession of the Will or the Codicil, nor is there any evidence that she knew the content of the instruments until the death of the decedent. There is no credible evidence that Mrs. Gallagher either directly or indirectly gave instructions to Mr. McKay regarding the preparation of the Will or Codicil of the decedent. There is no credible evidence that Mrs. Gallagher was ever present on any occasion when the decedent expressed a desire to make a Will.
“6. No presumption has been raised that either the Will or the Codicil was prepared or executed as a result of undue influence.
“7. The Court finds from the greater weight of the evidence that the Last Will and Testament of Agnes V. Robertson dated the 7th day of October, 1974, and the Codicil thereto dated the 26th day of June, 1975, were not prepared or executed as a result of undue influence.
“8. There is no credible evidence that the Will and Codicil of the decedent are vague and ambiguous.
“9. There is no credible evidence that the Codicil was procured by fraudulent misrepresentation of Mrs. Gallagher.
“The Court concludes:
“1. That the petitioners have failed to carry the burden of proof as contestants to the probate of the Last Will and Testament of Agnes V. Robertson dated the 7th day of October, 1974, and the Codicil thereto dated the 26th day of June, 1975, to prove by the greater weight of the evidence that the execution of the said Will and Codicil were procured by Alice Carey Gallagher, the proponent thereof, by undue influence. In Re Carpenter, 253 So.2d 697 (Fla.1971).
“2. That the petitioners have failed to carry the requisite burden of proof that the said Codicil of the decedent was procured by fraudulent misrepresentation of the respondent, ALICE CAREY GALLAGHER. Canal Authority v. Ocala Mfg. Ice & Packing Co., 332 So.2d 321 (Fla.1976).
“3. That the petitioners have failed to carry the burden to demonstrate that there is an ambiguity in either the Will or the Codicil of the decedent, and in the absence of such ambiguity the Court is without power to alter either instrument. Nesbitt v. Eisenberg, 139 So.2d 724 (Fla.App.1962).”

The court stated in its holding In Re Carpenter, 253 So.2d 697 (Fla.1971), appeal after remand, 289 So.2d 410 (Fla. 4th DCA 1974), that § 732.31, Florida Statutes provided that the proponent of a contested will has the burden of proving, prima facie, the formal execution and attestation of the will; when that has been accomplished, the burden of proof then shifts to the contestant to establish facts constituting the grounds upon which revocation is sought. The record shows that the parties stipulated to the execution in compliance with Florida law. Appellants then sought to prove their allegations of undue influence.

The issue under consideration is whether the presumption of undue influence was, in fact, raised. It is well established in Florida that if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises. Zinnser v. Gregory, 77 So.2d 611 (Fla.1955). Undue influence must be proved by clear and convincing evidence by the party asserting such. Freedman v. Freedman, 345 So.2d 834 (Fla. 3d DCA 1977). The court stated in Carpenter, supra, at 701, undue influence entails:

“ ‘Active procurement’ and ‘confidential relationship’ [which] are legal concepts operating within a broad sphere of factual situations. Within this sphere, the trier of fact is vested with discretion to determine whether or not the facts show active procurement and/or a confidential relationship. Outside this sphere, the question becomes one to be decided by the trier of law in accord with established rules. The problem posed for our consideration is whether the facts in this case permitted an inference of a confidential relationship and active procurement; if so, we are bound to uphold the finding of the trier of fact; if not, we must conclude that he erred.”

The record in the instant cause clearly reflects that there was a close bond between appellee and the deceased; that the deceased spent most of her last years in Miami living with her granddaughter; and that the deceased had expressed a desire to others to grant power of attorney to the appellee. In the leading case of Quinn v. Phipps, 93 Fla. 805, 113 So. 419, at 421-422 (1927), the court defined the term “confidential relationship” as “ . . .a very broad one [term] . . . The origin of the confidence is immaterial . . . The relation and the duties involved in it need not be legal. It may be moral, social, domestic, or merely personal.”

The evidence presented is sufficient to permit the conclusion of an inference of a confidential relationship between appellee and the deceased. The mere existence of a confidential relationship between the testator and a beneficiary, even though the principal one, does not raise a presumption of undue influence so as to impose the burden upon that beneficiary of establishing that execution of the will was not obtained by undue influence. In re Joiner’s Estate, 156 So.2d 161 (Fla.1963), conformed, 156 So.2d 166 (Fla. 3d DCA 1963) and In re Duke’s Estate, 219 So.2d 124 (Fla. 2d DCA 1969). Furthermore, the record is devoid of any evidence whatsoever which might lead to the inference of “active procurement” on the part of appellee. The court found, inter alia, and the record supports that: (a) the deceased selected the attorney to draft the will; (b) the attorney arranged the execution of the will and the audio-videotaping thereof; (c) decedent’s attending physician witnessed the execution of the will; (d) at the time of execution, decedent understood the extent of the estate and the object of her bounty; (e) the will and codicil were retained by the attorney; (f) the primary beneficiary (appellee) did not have possession of the will or codicil; (g) appellee had no knowledge of the contents of the will and codicil prior to decedent’s death.

We affirm the decision of the trial court. The presumption of undue influence did not arise, since the appellants failed to carry their burden of proof in presenting competent, sufficient evidence to establish appel-lee’s having participated in “active procurement” as to the execution of the will and codicil; without proof that the appellee-pri-mary beneficiary had confidential relationship with testator and was active in the procurement, the presumption does not arise. In re Joiner’s Estate, supra.

Affirmed.

      . See recent legislation, The Florida Probate Code, 731.011 et seq., Florida Statutes (1975).


author: DOWNEY, Chief Judge. LETTS, Judge,

text:
    SOUTH FLORIDA REGIONAL PLANNING COUNCIL, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, Florida, Appellee.
    No. 77-2451.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1979.
    Rehearing Denied Aug. 1, 1979.

      Earl G. Gallop, of Milledge & Hermelee, Miami, for appellant.
    Lawrence J. Langer, Asst. County Atty., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

South Florida Regional Planning Council, hereafter SFRPC, seeks reversal of an adverse final judgment arising out of its breach of contract suit against the Board of County Commissioners of Palm Beach County.

The cause of action sued upon had its genesis in an Interlocal Agreement entered into on July 1, 1974, between Dade, Monroe, Broward and Palm Beach Counties. Said counties joined together to form the SFRPC pursuant to Section 163.01, Florida Statutes (1969) the purpose of which was:

a. To provide local governments with a means of exercising the rights, duties and powers of a Regional Planning Agency as defined in Chapters 23, 163, and 380 of the Florida Statutes, including those functions enumerated hereinabove by preambles, and other applicable Florida, Federal and Local law.
b. To provide a means for conducting the comprehensive regional planning process.
c. To provide regional coordination for the members of the Council.
d. To exchange, interchange, and review the various programs of the individual members which are of the regional concern.
e. To promote communication among members and the identification and resolution of common regional-scale problems.
f. To cooperate with Federal, State, Local and non-governmental agencies and citizens to insure the orderly and harmonious coordination of State, Federal, and Local planning and development programs in order to assure the orderly, economic, and balanced growth and development of the Region, consistent with the protection of the natural resources and environment of the Region and to protect the health, safety, welfare and quality of life of the residents of the Region.

Although the district contemplated to be affected by the Council’s planning activities also included Martin and St. Lucie counties, these counties never saw fit to join in the Interlocal Agreement.

Among the planning activities which the Council engaged in were the following: review of developments of regional impact, nominations for Areas of Critical State Concern, review of proposed federally funded projects, review of applications for Army Corp. of Engineer Dredge and Fill Permits and Subdivision Feasibility Studies. In addition, the SFRPC published a Coastal Zone Management Study and numerous other reports.

The operating budget of the SFRPC is derived from membership assessments, legislative appropriations, grants and matching funds from the state and federal governments, and charges for various services. The annual membership assessment, however, is the basic source of operating revenue, as legislative appropriations vary yearly, grants and matching funds span fiscal periods and fluctuate, and the various service charges are insubstantial.

The Council, which is made up of elected governmental officials (three County Commissioners and two Municipal Councilmen from Palm Beach County), adopted its 1976 Work Program and budget. However, on June 24, 1975 appellee adopted a resolution withdrawing from the Council, effective July 1, 1975. Although the Interlocal Agreement provided that membership could be terminated only by resolution of the members’ governing body upon giving twelve months written notice (all contractual obligations to continue until the effective date of the withdrawal), appellee notified SFRPC of its resolution to withdraw effective July 1, 1975 and refused to pay the membership fee for the ensuing year. This suit was commenced to recover that annual membership fee.

After a non-jury trial, the court entered a comprehensive final judgment containing findings of fact and conclusions of law. Among those findings and conclusions the court found the appellee had violated the Interlocal Agreement of 1974 by terminating its membership without proper notice and non-payment of dues in the amount of approximately $25,000. However, the court found that as a result of the Council’s budget revision, the Council sustained no actual damage other than a loss of prestige due to appellee’s withdrawal. Therefore the trial court concluded that the annual dues of $25,000 bore no reasonable relationship to the cost incurred by the Council in disassociating appellee. Thus the provision requiring that amount to be paid was a penalty and to insist upon such a payment under those circumstances would be unconscionable. Having found that the stipulated damage of one year’s membership fee was a penalty, the trial court concluded SFRPC must prove its actual damages in order to recover. But the proof showed th"at the Council had so mitigated its damages that no recoverable damage was demonstrated. Accordingly, judgment for $1.00 was entered for appellant.

As we view this case the ultimate conclusion of the trial court is correct. However, we disagree with the finding and conclusion that the provision for payment of the membership fee constitutes a penalty. First of all, we do not see the provision in question as one providing, for damages. On the contrary it is couched in terms of minimum notice of termination of membership and it requires a member to continue paying dues until its membership is terminated. Secondly, if it were a provision for damages, it does not appear to be a penalty because the damages flowing from a breach of the contract were hardly ascertainable on the date thereof. As this court pointed out in Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975), a disparity between the damages sustained and the amount provided for in the contract is not the test. Rather, the test is “whether or not the damages flowing from a breach are readily ascertainable at the time the contract is executed.” Supra 869. If the damages are readily ascertainable on the contract date, the provision is a penalty, if not it is one for liquidated damages.

The Bruce Builders, supra, opinion went on to point out that, if the subsequent circumstances demonstrate that it would be unconscionable to allow the person claiming damages to retain or recover the amount provided in the contract, equity may relieve the party charged with the breach.

The finding of unconscionability in the final judgment is adequately supported in the record because of the great disparity between the amount of the annual dues claimed and the paucity of injury or damage resulting to SFRPC from the breach in question. Thus, “the subsequent circumstances” envisioned in Bruce Builders, supra, justifies the conclusion reached in the final judgment.

For the foregoing reasons, the judgment appealed from is affirmed.

AFFIRMED.

BERANEK, J., concurs.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting:

I dissent.

The majority agrees that the Bruce Builders rationale calls for equity to provide the relief. On what basis should equity assist here? The Board’s action was an arbitrary breach of a written contract which we now hold did not contain a penalty clause. I would not call on equity to help cleanse such unclean hands.


author: PER CURIAM

text:
    Andrew MADDOX, Jr., Appellant, v. STATE of Florida, Appellee.
    No. LL-76.
    District Court of Appeal of Florida, First District.
    June 22, 1979.
    Rehearing Denied Aug. 1, 1979.
    Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM

We affirm appellant’s conviction for buying, receiving, and/or aiding in the concealment of stolen property. His first point, claiming error in certain comments made by the prosecutor, is not preserved for appeal under Clark v. State, 363 So.2d 331 (Fla.1978) because he did not move for a mistrial. His second point, alleging that the court should have instructed the jury on the law relating to circumstantial evidence, is controlled by this court’s decision in Boyd v. State, 122 So.2d 632 (Fla. 1st DCA 1960) since the state did not rely solely on circumstantial evidence to support the conviction.

AFFIRMED.

McCORD, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    CITY NATIONAL BANK OF HALLANDALE, Executor of the Estate of Martha Arnstein, Deceased, Appellant, v. 4000 RESTAURANT, INC., d/b/a Golden Dolphin Restaurant, et al., Appellees.
    No. 78-402.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1979.
    Lee H. Schillinger of Reichenthal & Schil-linger, P.A., Coral Gables, for appellant.
    Brenton Ver Ploeg and Mark D. Pugliese of Shutts & Bowen, Miami, for Appellees 4000 Restaurant, Inc., d/b/a Golden Dolphin Restaurant and North American Company for Property and Cas. Ins.
    Roderick L. McGee of Ligman, Martin, Shiley & McGee, Coral Gables, for appellee Holiday Inn.
   PER CURIAM.

AFFIRMED.

CROSS, J., and BAKER, JOSEPH P., Associate Judge, concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

The deceased, Martha Arnstein, died during the pendency of this appeal. Mrs. Arn-stein sued the appellees, a hotel and a restaurant, for failing to render prompt aid to her when she began choking on a piece of meat. She claimed that the appellees were negligent in two respects: in failing to train their personnel to render first aid to choking patrons, and in failing to call for medical assistance within a reasonable time. The trial court dismissed an amended complaint with prejudice. I concur in the dismissal as to the allegations concerning training of the hotel and restaurant personnel, as I do not believe there is any duty to provide medically trained employees in anticipation of the problem that occurred here. However, I believe that appellant’s allegations that the appellees failed to secure medical aid within a reasonable amount of time stated a cause of action. While the allegations were not precise, I think they sufficiently alleged a violation of appellees’ duty to promptly secure medical assistance when appellees were placed on notice that Mrs. Arnstein required medical aid and could not secure such aid for herself. Neither of the parties has been able to cite a case on point. However, under similar circumstances, carriers have been held to have a duty to secure aid with reasonable promptness:

When a passenger becomes sick or is injured while en route, no matter how free the carrier may be of any blame in respect to the sickness or injury, the carrier owes to the passenger the consideration and care of common humanity, and if the carrier neglects that care which the enlightened sentiments of common humanity would dictate, and by reason of that neglect after the injury has occurred the passenger suffers damage, the carrier is liable. It is the duty of the carrier to see to it that the passenger is placed where he can receive proper treatment, and with reasonable promptness, and not leave him in a helpless condition lying on the floor suffering the tortures of an injury such as is shown in this case. The above language is closely paraphrased from that found in Railroad Co. v. Byrd, 89 Miss. [308] at page 321, 42 So. 286, and no further authority is necessary, but the following cases are also to the same effect: Eidson v. Southern Ry. Co. (Miss.) 23 So. 369; Atchinson, T. & S. F. Railroad Co. v. Weber, 33 Kan. 543, 6 P. 877, 52 Am.Rep. 543; Railway Co. v. Salzman, 52 Ohio St. 558, 40 N.E. 891, 49 Am.St.Rep. 745; Conolly v. Railway Co., 41 La.Ann. 57, 5 So. 259, 6 So. 526, 3 L.R.A. 133, 17 Am.St.Rep. 389; Middleton v. Whitridge, 213 N.Y. 499, 108 N.E. 192, Ann.Cas. 1916C, 856.
Hughes v. Gregory Bus Lines, 157 Miss. 374, 128 So. 96, 97 (1930).

Also see Restatement (Second) of Torts, § 314(a) (1965).

It may well be that the appellees will be entitled to a summary judgment on the actual factual circumstances that existed since appellees claim that they did act with reasonable promptness in calling for help after being put on notice of appellant’s condition. But I believe the appellant is at least entitled to have that issue resolved.


author: MOORE, Judge.

text:
    STONEWALL INSURANCE COMPANY, Appellant, v. Todd T. WOLFE, a minor, by and through his natural father, guardian and next friend, Gerald Wolfe, and Gerald Wolfe, Individually, Appellees.
    No. 77-1589.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.
    Rehearing Denied Aug. 2, 1979.
    Allan L. Hoffman, West Palm Beach, for appellant.
    Larry Klein and Stuart E. Kocha, West Palm Beach, for appellees.
   MOORE, Judge.

This case involves the application of personal injury protection (PIP) benefits pursuant to an automobile liability insurance policy. The trial court granted summary judgment on the issue of liability for the appellees.

Several boys had been on an overnight camping trip. One of them drove an automobile while the others (one was carrying a gun) rode on the back of the trunk. When the automobile turned a corner the boy carrying the gun fell from the vehicle, rolled in the grass, got up, and then proceeded walking down the roadway toward the vehicle. While so walking he fell to one knee and the gun was accidentally discharged in the direction of the automobile, striking the minor plaintiff in the eye. Claim was made for PIP benefits under the policy covering the minor plaintiff’s father’s vehicle. The sole question on this appeal is whether the loss sustained arose out of the ownership, maintenance, or use of a motor vehicle. Section 627.736(1), Florida Statutes (1977).

Appellees attempt to sustain the summary judgment on the basis of Section 627.736(4)(d) 1 & 3 which require payment of PIP benefits by the insurer for accidental bodily injury sustained by the owner (or a relative of the owner residing in the same household) while occupying a motor vehicle. Thus, it is appellees’ position that mere occupancy of a motor vehicle is all that the statute necessitates in order to activate the insurer’s liability for PIP benefits. We reject this reasoning. Subsections (4)(d) 1 & 3 merely provide the circumstances under which an insurer’s liability arises and these sections must be read in pari materia with subsection (1) which, in our opinion, is the definition section of the statute and provides us with the intent of the Legislature. There, in requiring and describing personal injury protection benefits, the Legislature makes specific reference to subsection (4)(d) and clearly requires payment “for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle .' . . ” (Emphasis added).

Under appellees’ reasoning the mere occupancy of an automobile would give rise to liability for benefits, whether or not there is a causal connection between the occupancy and the injury. This case is controlled by our opinion in General Acc. Fire and Life, etc. v. Appleton, 355 So.2d 1261 (Fla.4th DCA 1978) wherein this court concluded “that it is not enough that an automobile be the physical situs of an injury or that the injury occur incidentally to the use of an automobile, but that there must be a causal connection or relation between the two for liability to exist.” Although the Appleton case dealt with uninsured motorist coverage the identical language is used in the statute under consideration here. Unlike Leatherby Insurance Co. v. Willoughby, 315 So.2d 553 (Fla.2d DCA 1975) which involved an intentional striking of the plaintiff with a vehicle, we are dealing here with a stray bullet, the projection of which had no relationship to the automobile. The use of the automobile by the boy who fell from it had ceased at the time of this tragic accident. He was merely walking in the grass toward the automobile from which he had fallen when he stumbled in the grass, accidentally discharging the gun he was then carrying. The location of the victim, seated on the trunk of the automobile, is merely the physical situs of the injury. He could just as easily have been standing on the shoulder of the road when the gun was accidentally discharged. The fact that the automobile transported him there does not give rise to liability. We therefore fail to find any causal connection between the use of the automobile and the injury which was sustained. This answers appellees’ second point.

The facts herein are more closely akin to Feltner v. Hartford Accident and Indemnity Co., 336 So.2d 142 (Fla.2d DCA 1976) where the victim, while sitting in an automobile, was intentionally battered by his assailant. It was there held that notwithstanding the use of the vehicle in transporting the assailant’s daughter there was insufficient causal connection between the use of the automobile and the attack. Although the issue was not considered by the court in its opinion the court impliedly rejected the concept that the mere occupancy of the vehicle would give rise to liability. Rather, the court stated that the injury was not caused by an accident arising out of the ownership, maintenance or use of the motor vehicle.

The summary judgment on the issue' of liability in favor of the appellees is reversed and this cause remanded with instructions to enter summary judgment for the appellant.

REVERSED and REMANDED.

CROSS and LETTS, JJ., concur.