author: GRIMES, Chief Judge.

text:
    LARGEN and Clontz, etc., et al., Petitioners, v. Ruben GREENFIELD, etc., et al., Respondents.
    No. 78-1212.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1978.
    Rehearing Denied Oct. 25, 1978.
    Kenneth C. Deacon, Jr., of Harris, Barrett & Dew, St. Petersburg, and Leon H. Handley of Gurney, Gurney & Handley, P.A., Orlando, for petitioners.
    •Albert Yurko, Orlando, for respondents.
   GRIMES, Chief Judge.

Petitioners seek review of an order denying change of venue in a medical malpractice mediation proceeding.

We deny the petition for certiorari, but we have chosen to write this opinion because we understand that judicial referees are reaching differing conclusions in a number of mediation proceedings pending in our jurisdiction. While we acknowledge that ordinarily certiorari review of medical mediation proceedings should be limited to questions of jurisdiction, we believe that the issue raised by this petition is sufficiently serious as to pose a potential for irreparable injury for which there would be no other adequate remedy. Cf. Kaufman v. King, 89 So.2d 24 (Fla.1956) (improvident denial of motion for change of venue may be reached by certiorari).

The respondents (claimants) filed a medical malpractice claim in the Circuit Court of Pinellas County. The petitioners (defendants) filed answers to the claim and thereafter moved to dismiss or transfer the claim to Seminole County on grounds of venue. The defendants all lived and maintained their places of business in Seminole County. The claimants also resided in Seminole County, and all of the alleged acts of malpractice occurred in Seminole County. The judicial referee found that if this were a lawsuit venue would properly lie in Seminole County. However, he concluded that these statutes did not apply to a claim in medical mediation and held that he had no authority to consider the motions.

There is no specific reference to venue in either the medical mediation statute, Section 768.44, Florida Statutes (1977), or the Florida Rules of Medical Mediation Procedure. However, Section 768.44(2) states in part:

The chief judge of each judicial circuit shall prepare a list of persons available to serve on medical liability mediation panels whose purpose shall be to hear, and facilitate the disposition of, all medical malpractice actions arising within the jurisdiction of the circuit.

Thus, it appears to have been contemplated that a claim for medical malpractice should be mediated in the same forum in which the suit on that claim may be ultimately filed. Logic dictates this conclusion because otherwise mediation panels would be sitting many hundreds of miles from the jurisdiction in which the suits for medical malpractice would later have to be filed. The resulting duplication of effort, inconvenience, expense and delay would be totally contrary to the philosphy behind the enactment of this legislation.

The claimants argue that the defendant’s motion was prohibited by virtue of Fla.R.Med.P. 20.090(c) which provides that except for the filing of an answer there “shall be no other pleadings or motion filed in answer to the claim.” We believe that this refers to motions directed to the substantive merits of the claim and does not preclude an attack on the venue of the proceeding.

Despite the foregoing, we find it necessary to deny this petition for certiorari because the defendants failed to timely raise the defense of venue. Under Rule 20.020 all Florida Rules of Civil Procedure not directly in conflict with Section 768.44 and the medical mediation rules are applicable to medical liability mediation proceedings. Fla.R.Civ.P. 1.140(b) calls for the defense of improper venue to be raised upon or before the filing of an answer. A defendant in a civil action who does not move for change of venue until after his answer has been filed is deemed to have waived his venue privilege. Aquaco, Inc. v. Hopkin, 323 So.2d 679 (Fla.3d DCA 1975); Fixel v. Clevenger, 285 So.2d 687 (Fla.3d DCA 1973). If this principle was deemed inapplicable to medical mediation proceedings, there would be nothing to prevent a defendant from raising venue at any time during the mediation proceedings and thereby thwarting the speedy disposition which is required in such matters. Cf. Mercy Hospital v. Badia, 348 So.2d 631 (Fla.3d DCA 1977).

The petition for certiorari is denied.

HOBSON and DANAHY, JJ., concur.


source: Caselaw Access Project

author: HUBBART, Judge.

license: Public Domain

text:
    Alberto BARTLETT et ux., et al., Appellants, v. George E. CAINES et ux., Appellees.
    No. 77-1326.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Rehearing Denied Nov. 9, 1978.

      Morgan, Lewis & Bockius and Paul J. Levine, Miami, for appellants.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellees.
    Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   HUBBART, Judge.

By this appeal, we are asked to review a final judgment of partition of certain real estate and personalty owned by a corporation as its main asset entered in the Circuit Court for the Eleventh Judicial Circuit of Florida. We reverse.

The basis for ordering the partition was that “a deadlock and stalemate condition exists, dissen[s]ions, and continuous disagreements prevent shareholders from functioning as a corporation and little or no hope exists for change in this relationship.” Although such is a lawful ground for partitioning corporate assets at the request of a dissatisfied stockholder see Kay v. Key West Development Co., 72 So.2d 786 (Fla. 1954); Wofford v. Wofford, 129 Fla. 445, 176 So. 499 (1937), our review of the record reveals no evidence to support such ground. The corporation herein is in no way involved in a voting deadlock or stalemate among its shareholders and, although losing money and experiencing some shareholder dissension, it is still an ongoing, solvent, viable corporation. As such, the trial court had no authority to order the partition of the corporate real estate and personalty herein at the behest of a dissatisfied minority shareholder. Hanes v. Watkins, 63 So.2d 625 (Fla.1953); Freedman v. Fox, 67 So.2d 692 (Fla.1953); Finn Bondholders, Inc. v. Dukes, 157 Fla. 642, 26 So.2d 802 (1946); News-Journal Corp. v. Gore, 147 Fla. 217, 2 So.2d 741 (1941); Mills Development Corp. v. Shipp & Head, Inc., 126 Fla. 490, 171 So. 533 (1936); Hebert v. Royal Enterprises of Pensacola, Inc., 259 So.2d 750 (Fla. 1st DCA 1972); Keck v. Schumacher, 198 So.2d 39 (Fla. 2d DCA 1967).

The final judgment under review is hereby reversed. The cause is remanded to the trial court with directions to enter a judgment for the defendants herein.

Reversed and remanded.


text:
    George C. WATKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1925.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Rehearing Denied Nov. 17, 1978.

      Hirschhorn & Freeman and Joel Hirsch-horn, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   HUBBART, Judge.

The central issue involved on this appeal is whether it is an indirect comment on the defendant’s failure to testify in a criminal case for a prosecuting attorney to play [before a trial jury] a tape recording of an incriminating telephone conversation involving the defendant which has previously been admitted in evidence, point to the defendant at counsel table, and argue that the defendant cannot deny such taped conversation. Under well-settled principles of Florida law, we hold that such argument and conduct constitutes an indirect comment on the defendant’s failure to testify in violation of Fla.R.Crim.P. 3.250. As such error was properly preserved for. appellate review herein, we reverse.

The facts pertaining to the above issue are undisputed. The defendant George C. Watkins was charged by information in two counts with: (1) bribery [§ 838.015, Fla. Stat. (1977)], and (2) receiving unlawful compensation [§ 838.016, Fla.Stat. (1977)] before the Circuit Court for the Eleventh Judicial Circuit of Florida. Upon his plea of not guilty, the defendant was tried by a jury. At the- close of the state’s case, the defendant made a motion for a judgment of acquittal as to counts I and II of the information. The trial court granted the motion as to count I of the information, but denied the motion as to count II of the information. Subsequently, the defendant did not testify in the case and offered no evidence on his own behalf.

In closing argument before the jury, the prosecuting attorney referred to an incriminating tape recording of a telephone conversation involving the defendant, which tape had previously been admitted in evidence. The following transpired:

“[PROSECUTING ATTORNEY]: You don’t have to take Little Charlie Rohn’s word for it. You could hear it for yourself, because they didn’t make it up, and he can’t deny it. [Emphasis added]
[TAPE BEING PLAYED]
MR. WATKINS: What kind of price did he give you?
MR. BENTON: It is going for about $30,000.
[PROSECUTING ATTORNEY]: And I don’t care how eloquent he is.
[DEFENSE COUNSEL]: Judge, objection. May I have a bench conference?
[Thereupon, the following proceedings were ha[d] at side bar.]
[DEFENSE COUNSEL]: I move for a mistrial on the ground that [the prosecuting attorney] has commented on the Defendant’s failure to take the stand. He said, and he pointed over to the Defendant, he can’t deny it. Then he put the tape on, and then [the prosecuting attorney] came back and said, I don’t care how eloquent he is. Obviously, that was a remark to me, but in the contents of the tape you were playing indicates that he was talking about Mr. Watkins not taking the stand, to deny it, because he was playing the tape of Mr. Watkins’ voice. [Emphasis added]
[PROSECUTING ATTORNEY]: I will clarify it, because I was .
THE COURT: All right. I agree. I think you better be careful on that, and I would caution you just a minute to just avoid the personal comments. Let’s stick with the evidence. If you want to talk about — talk about the State vs. the Defendant. Leave personal comments out of it. Motion denied.”

The defendant was subsequently convicted on count II of the information and sentenced to a term of imprisonment. This appeal follows.

The law of this state is well-settled that it constitutes reversible error, without regard to the harmless error doctrine, for a prosecuting attorney to comment directly or indirectly before a trial jury on the defendant’s failure to testify in a criminal case — providing the defendant preserves the error in the trial court for appellate review by an objection to such comment and a motion for a mistrial. This error cannot be cured by a cautionary instruction to the trial jury. Clark v. State, 363 So.2d 331 (Fla. 1978); Shannon v. State, 335 So.2d 5 (Fla. 1976); Trafficante v. State, 92 So.2d 811 (Fla. 1957); Smith v. State, 344 So.2d 915 (Fla. 1st DCA 1977); Childers v. State, 277 So.2d 594 (Fla. 4th DCA 1973); Singleton v. State, 183 So.2d 245 (Fla. 2d DCA 1966); Fla.R.Crim.P. 3.250. The law is equally well-settled that it constitutes an indirect comment on the defendant’s failure to testify when a prosecuting attorney argues before a trial jury that certain of the state’s evidence stands undenied by the defendant himself. Trafficante v. State, 92 So.2d 811 (Fla. 1957); Kolsky v. State, 182 So.2d 305 (Fla. 2d DCA 1966).

In the instant case, the prosecuting attorney played a portion of an incriminating tape recording on which the defendant’s voice was plainly audible, pointed at the defendant seated at the counsel table, and argued that the defendant “can’t deny” this evidence. As such, this argument and conduct clearly constitutes an indirect comment on the defendant’s failure to testify. We reject the state’s contention that the argument herein is not such a prohibited comment because the prosecutor used the words “can’t deny,” as opposed to “didn’t deny.” Such a contention splits hairs as any reasonable jury would have concluded that the defendant himself had failed to deny in court the alleged truth of that which was stated on the tape recording. The above error was properly preserved for appellate review in this court, and we, accordingly, have no alternative but to reverse the conviction herein and remand the cause for a new trial.

Inasmuch as the case must be retried, it is appropriate to comment that we find no merit in the balance of the defendant’s contentions made on this appeal. In particular, it is our view that the trial court properly admitted evidence of a long-standing course of criminal conduct in which the defendant as a county electrical inspector had accepted unlawful compensation from various electrical contractors and electricians. Such collateral crimes evidence was relevant and admissible because it constituted part of a common scheme or plan directly involving the crime for which the defendant was on trial. The fact that such common scheme or plan began approximately six years ago and continued to the incident for which the defendant was on trial did not make the evidence too remote. Williams v. State, 110 So.2d 654 (Fla. 1959); Talley v. State, 160 593, 36 So.2d 201 (1948); Campbell v. State, 127 Fla. 399, 173 So. 677 (1937); Whiteman v. State, 343 So.2d 1340 (Fla. 2d DCA 1977).

Reversed and remanded for a new trial.


author: KEHOE, Judge.

text:
    LATIN AMERICAN SHIPPING CO., INC., Appellant, v. PAN AMERICAN TRADING CORP., Appellee.
    No. 78-21.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Rehearing Denied Nov. 17, 1978.
    Richard F. Ralph, Miami, for appellant.
    Quinton, Leib & Lummus and James D. Adams, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a final judgment dated September 28, 1977, entered by the trial court in favor of appellee, plaintiff below. We reverse.

The relevant facts in this matter may be summarized as follows: Appellee had a contract to sell 56 tons of steel reinforcing rods to Diez & Diez (Purchaser) located in Panama. The purchaser opened a letter of credit as security for the purchase price through the Southeast First National Bank of Miami (Bank). The letter of credit had as part of its terms that the goods were to be shipped to Panama City, Panama, via Cris-tobal and that the ocean bill of lading have an “on board” notation. Originally, appel-lee intended to ship the goods through the Port of Miami and to use the services of appellant, a Miami freight forwarder. Thereafter, appellee decided to ship the goods out of the Port of Baltimore, Maryland. When appellant was advised of this change, it advised appellee that it could not handle the shipment out of Baltimore and that it would be necessary for a freight forwarder located in New York to handle the shipment with the carrier, Prudential Grace Lines, Inc., whose main offices were in New York. Appellee authorized appellant to do whatever needed to be done in this regard. After this authorization, appellant contacted Gaynar Shipping Corp., a freight forwarder located in New York. Appellee and Gaynar had a correspondent relationship with each referring shipping matters to the other. Also, Gaynar had previously’ handled shipments of appellee. Appellant forwarded the purchase order, invoices, letter of credit, etc., which it had received from appellee to Gaynar. Gaynar booked space for the shipment with Prudential, prepared the bill of lading, and processed the shipment. Gaynar and Prudential had their offices in the same building in New York City and transacted business together on a regular basis. After Gaynar prepared the bill of lading, Gaynar sent it to Prudential for execution and issuance. Prior to issuing the bills of lading, Prudential changed the port of discharge from Cristobal to Balboa. Further, a notation of “on board” was never made. Subsequently, when Gaynar forwarded the documents back to Miami for presentment to the Bank, the documents were not in order because of the change in place of destination and the failure to include an “on board” notation. Due to these discrepancies, both the advising bank in Miami and the issuing bank in Panama refused to honor the letter of credit. Also, the purchaser in Panama refused to waive the discrepancies. The goods left Baltimore and arrived in Balboa following the presentment of the documents to the Miami bank. Appellee advised Prudential that the goods had not been delivered as booked and in accordance with the bill of lading as prepared by Gaynar pursuant to the booking. Appellee then demanded payment from Prudential while, in effect, abandoning the goods to it. Apparently, appellee never contacted the purchaser or made any effort to enforce the purchase contract. Appellee did make some inquiries about selling the goods to third parties. At the time of trial, appellee did not know the whereabouts of the goods.

Based upon these facts appellee filed a complaint, as amended, alleging, among other things, that appellant was negligent and that Gaynar was its agent. (Service on Gaynar was quashed). The cause came on for a jury trial against the remaining defendants. On September 28,1977, pursuant to the jury verdict, the trial court entered a final judgment in favor of appellee and Prudential and against appellant in the sum of $16,590.75. The trial court retained jurisdiction to award costs upon proper motions by the prevailing parties. From this final judgment appellant brings this appeal.

Among the points raised by appellant on appeal, we find the following one to be dispositive of the appeal. In its instructions to the jury, the trial court stated “[t]he Court instructs you that Latin American Shipping [appellant] is responsible for any negligence of Gaynar Shipping Corporation in the performance of their duties pursuant to the subject shipment.” Appellant objected to this instruction on the ground that it erroneously instructed the jury that as a matter of law it was liable for the negligence of Gaynar. In overruling appellant’s objection, we believe that the trial court erred. The question of whether appellant was liable for the negligence of Gaynar depended upon its agency relationship, if any, with Gaynar. Under the facts as revealed by this record, the question of existence of any such agency relationship was properly one for the jury to determine. Therefore, it was improper to instruct the jury that as a matter of law appellant was liable for the negligence of Gaynar. See, e. g., Smith v. Texas Co., 111 Fla. 762, 149 So. 585 (1933); American Can Co. v. Horlamus Corp., 341 F.2d 730 (5th Cir. 1965); Eberhardy v. General Motors Corp., 404 F.Supp. 826 (D.C.Fla.1975); Amerven, Inc. v. Abbadie, 238 So.2d 321 (Fla. 3d DCA 1970); and Financial Fire & Casualty Co. v. Southmost Vegetable Cooperative Assoc., 212 So.2d 69 (Fla. 3d DCA 1968). Because of this erroneous instruction, the final judgment appealed must be reversed.

In the light of this determination, it is unnecessary for us to consider the other points raised by appellant on appeal. We are confident, upon retrial, that the trial court will carefully review the points of law raised, including any issue raised about the mitigation of damages.

Reversed and remanded.


text:
    Archie Lee HAMILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-266.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Rehearing Denied Nov. 15, 1978.
    Ferrell & Ferrell and Milton Ferrell, Jr., Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

This is an appeal by the defendant, Archie Lee Hamilton, from a judgment of guilty on the charge of indirect criminal contempt of court, and a sentence thereon. We reverse.

The record reflects that following a non-jury trial, the court entered an order adjudging Hamilton “. . . in indirect criminal contempt of court by thwarting the orderly administration of justice in secreting the court file.” This adjudication was based on the findings of fact which the court recited in the order: that the court had advised Hamilton to be ready for trial (on pending criminal charges) and that no further continuances would be granted: that on Friday before his trial scheduled for Monday morning, Hamilton obtained the court file in his case from a deputy clerk who directed him to return it to her; that the file was not returned to the clerk and that a thorough search of the clerk’s office failed to disclose the file. It appears that the file has never been found.

From our review of the proceedings before the trial court, we conclude that the evidence was insufficient to support an adjudication of indirect criminal contempt of court. Generally, in contempt proceedings the contemnor is presumed to be innocent until proven guilty beyond a reasonable doubt. Turner v. State, 283 So.2d 157, 160 (Fla. 2nd DCA 1973) and cases cited therein. In this case, the state presented only inconclusive circumstantial evidence which creates mere suspicion, but fails to prove beyond a reasonable doubt that Hamilton committed the act charged.

In view of the foregoing opinion, the other points raised by Hamilton on this appeal need not be discussed.

Reversed.


author: DAUKSCH, Judge. ANSTEAD, Judge,

text:
    Richard Leroy MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 77-2295.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Rehearing Denied Nov. 15, 1978.
    William R. Sharpe, Orlando, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant sought to expunge the record of his arrest and conviction of manslaughter under Florida Rules of Criminal Procedure 3.692. He alleged and proved he was tried and convicted of manslaughter and after a successful appeal of his conviction the State declined to retry him and entered its nolle prosequi. The statute of limitations for his retrial has run.

At the hearing on his motion to expunge the appellant presented his affidavit that he had never been convicted of a criminal offense or a municipal ordinance violation and was released of the “instant charges” without having been adjudicated guilty, all in accordance with Section 901.33, Florida Statutes. The State neither traversed nor demurred to the motion of the appellant and did not present any evidence at the hearing to refute appellant’s sufficient allegations and proof but merely objected to the expungement.

The trial court refused to order the expungement of the record for the reason he read in the pre-sentence report, which was obtained after the original conviction, that appellant had been convicted of some traffic violations. Had these convictions been properly pleaded and proved by the state then they would have constituted a sufficient bar to the appellant’s requested expungement. They were not pleaded and were not properly proved. They were not properly proved because the records of the conviction were not furnished but merely a hearsay statement of a non-attending witness with no right to cross examination afforded. Of course had these convictions been properly pleaded and proved and had the affidavit of the appellant been shown to be perjurious a much more serious result might have occurred.

The order denying the motion for ex-pungement is reversed and this matter remanded for entry of an order in accordance herewith.

REVERSED AND REMANDED.

BASKIN, NATALIE, Associate Judge, concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

The parties are here on a stipulated statement of facts. No court reporter was in attendance at the hearing on the motion to expunge. However, at the hearing the trial judge questioned the accuracy of the appellant’s affidavit on the basis of the trial court’s recollection of the contents of a pri- or presentence investigation. The trial judge indicated that he would check the court file before ruling. No objection was made to this procedure. Upon checking the court file the trial judge found a record in the presentence investigation report of numerous prior traffic offenses contrary to the appellant’s sworn assertions in his affidavit. The trial court then denied the motion to expunge. I can find no error on the part of the trial court who conscientiously, and without objection, checked and determined that the appellant’s traffic record was contrary to appellant’s sworn representations.


author: PER CURIAM.

text:
    Edward H. HUDSON, d/b/ Hudson Aircraft Service, Appellant, v. John P. BROWN, as Leon County Property Appraiser and the Leon County Board of Tax Adjustment, Appellees.
    No. JJ-425.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1978.

      Michael Egan of William J. Roberts, P.A., Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen. and Edwin J. Stacker, Asst. Atty. Gen., J. Klein Wig-ginton of McClure, Wigginton, Campbell & Owen, Edwin A. Green, II, Tallahassee, for appellees.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the final summary judgment appealed is affirmed. See St. John’s Associates v. Mallard (Fla. 1st DCA 1978), Case No. HH-235, Opinion filed October 3, 1978, not yet reported.

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


author: ERVIN, Judge.

text:
    Marshall GRAUER, Appellant, v. OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, Appellee.
    No. II-190.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1978.
    Rehearing Denied Nov. 6, 1978.

      David R. Lewis of Lewis, Paul, Isaac & Castillo, Jacksonville, for appellant.
    Paul R. Sanford of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee.
   ERVIN, Judge.

Grauer appeals a judgment on the pleadings denying recovery of benefits under his disability income policy.

In July, 1973, Grauer injured his back and received total disability payments from Occidental for two years, or until July 24, 1975. On January 22, 1974, he was seriously injured in an automobile accident, and in February, 1976, he sued his insurer to recover disability benefits under the recurrent disability provisions of his policy. He alleged he was totally disabled from the injury, and sought disability benefits commencing after July 24, 1975. Later, final judgment was entered in favor of Occidental in which it was held, among other things, the injury sustained by Grauer in 1974 did not, under the terms of the policy, constitute a recurrent disability because it was necessary there be a recurrence of total disability only after the insured resumes his occupation on a full time basis for a continuous period of six months and here, “the plaintiff had not resumed his occupation on a full time basis for a continuous period of six months.”

In April 1977, Grauer filed a complaint against Occidental seeking disability payments from January, 1976, alleging that after short intervals following the injuries which he incurred in July, 1973, and in January, 1974, he resumed his occupation on a full time basis for a continuous period of more than six months after his total disability payments ceased in July, 1975, although he did not perform “each and every duty pertaining to his occupation.” He alleged also that following six continuous months of employment, he suffered a new total disability precluding him from performing each and every duty pertaining to his occupation. The lower court entered judgment on the pleadings and Grauer complains it erred in so doing; that the two suits were based upon different facts, different injuries, different conditions precedent, and different provisions of the policy; therefore the theory of res judicata does not apply.

While we agree with Grauer that the facts alleged and the relief sought in the two actions were sufficiently dissimilar so as to render res judicata inoperable, compare United States v. Moser, 266 U.S. 236, 45 S.Ct. 66, 69 L.Ed. 262 (1924), nevertheless we are of the view that Grauer is estopped from seeking disability payments from his insurer because the position he now maintains is inconsistent with that alleged in the prior action. The doctrine of estoppel against inconsistent positions is based upon equitable considerations, not those of res judicata. See Palm Beach Co. v. Palm Beach Estates, 110 Fla. 77, 148 So. 544 (1933). Grauer’s first complaint was filed February 6, 1976, in which he alleged he was entitled to disability benefits “due him as the result of his total disability emanating from his injury of January 22, 1974, which total disability was continuing and present at the time of his request and continues and is present through this date.” Thus Grauer alleged he was totally disabled from January 22, 1974 until the date his complaint was filed, February 6, 1976. His second complaint alleged his entitlement to disability payments following his employment on a full time basis “for a continuous period of more than six months after his total disability payments stopped in July of 1975.” The two positions are clearly inconsistent. Grauer could not be both, during the same period of time, employed on a full time basis and totally disabled.

The doctrine of equitable estoppel was well stated by the Second District Court of Appeal in United Contractors, Inc. v. United Construction Corp., 187 So.2d 695, 701-702 (Fla. 2d DCA 1966):

“Equitable estoppel” precludes a person from maintaining a position inconsistent with another position which is sought to be maintained at the same time or which was asserted at a previous time;’ and, as a general rule where a person has, with knowledge of the facts, acted or conducted himself in a particular manner, or asserted a particular claim or right, he cannot afterward assume a position inconsistent with such act or conduct to the prejudice of another who has acted in reliance on such conduct. The doctrine requires of a party consistency of conduct, when inconsistency would work substantial injury to the other party. 31 C.J.S. Estoppel § 108, p. 548, et seq.; Rosello v. Hayden, Fla.1955, 79 So.2d 682; Fairlie v. Scott, 1924, 88 Fla. 229, 102 So. 247; Holly Hill Citrus Growers’ Ass’n v. Holly Hill Fruit Products, C.A.Fla.1935, 75 F.2d 13.

The above rule is subject to the exception that it is not applicable unless the party’s position in the prior suit was successfully maintained. Smith v. Urquhart, 129 Fla. 742, 176 So. 787 (1937); McWilliams Co. v. Travers, 96 Fla. 203, 118 So. 54 (1928); Olin’s, Inc. v. Avis Rental Car System of Florida, 104 So.2d 508 (Fla.1958). It is true that Grauer did not obtain the relief which he sought in the prior action; it does not follow, however, that his previous position was not successfully maintained., The final judgment in the prior action found Grauer was totally disabled, but, under the terms of the policy, Occidental was not liable for total disability beyond the two years originally paid, primarily for the reason that Grauer had not resumed his occupation on a full time basis for a continuous period of six months. Grauer’s position, however, that he was totally disabled was successfully maintained by him in the preceding suit. To successfully assume a position to the prejudice of an adversary does not require that the party estopped must prevail in obtaining a successful result by way of a judgment against his adversary, and whether he wins or loses his case he may just as effectively become estopped from later changing his factual position to the injury of his adversary. Thus a particular state of facts in a pleading may be successfully assumed, and yet the decision on the law of the case may go against the party who has succeeded in the establishment of his own allegations of fact. Palm Beach Co. v. Palm Beach Estates, supra.

Grauer advances the ingenious argument, however, that the definitions of total disability and recurrent disability stated in the policy permitted him at the same time to be both totally disabled and to work on a full time basis, although he was unable to perform each and every duty pertaining to his occupation. Thus he argues he met the less restrictive definition of total disability, found in the second sentence to the term’s definition, applicable to the first two years of disability. He did not qualify, however, for the more stringent definition for the period beyond two years which, he argues, allows a lifetime disability since he was not completely unable to “engage in any gainful occupation for which he was reasonably fitted by education, training or experience.” We disagree.

The provision in the policy that the “insured shall be considered totally disabled while he is completely unable to perform each and every duty pertaining to his occupation . . .” has been interpreted to mean that an insured may recover permanent disability benefits if he is unable to perform his material duties pertaining to his usual and customary occupation in substantially the same manner as before. Lorber v. Aetna Life Ins. Co., 207 So.2d 305 (Fla. 3d DCA 1968). Clauses which so define total disability do not mean absolute helplessness, but contemplate a disability to perform all substantial and material acts necessary to one’s usual occupation in the customary and usual manner. Lorber v. Aetna Life Ins. Co., supra; Sun Life Ins. Co. of America v. Evans, 340 So.2d 957, 959 (Fla. 3d DCA 1976). This does not mean, however, the policy permits the insured to be otherwise gainfully employed and qualify for benefits since it continues, “and he is not engaged in any other gainful occupation or employment.”

We conclude, a finding was previously made that Grauer had not resumed his occupation on a full time basis for a continuous period of six months. That finding estops Grauer to now assert his entitlement to disability benefits by reason of his later allegation that he was, during the same period of time, employed full time. The judgment is

AFFIRMED.

MILLS, Acting C. J., and MELVIN, J., concur.

      . “Total disability” means the complete inability of the Insured to engage in any gainful occupation for which he is reasonably fitted by education, training or experience. During the first 2 years of any disability, the Insured shall be considered totally disabled while he is completely unable to perform each and every duty pertaining to his occupation and he is not engaged in any other gainful occupation or employment.

      . RECURRENT DISABILITY — A recurrence of disability from the same cause shall be considered a continuation of the same disability, except that no monthly income shall be paid for any interval between periods of disability. However, a recurrence of total disability commencing after the Insured has resumed his occupation, on a full time basis for a continuous period of six months shall be considered a new total disability.


text:
    Deborah F. LEE, Individually and as Administratrix of the Estate of William M. Lee, Jr., Deceased, Appellant, v. C & P SERVICE CORPORATION and the Travelers Indemnity Company, Appellees.
    No. 77-1273.
    District Court of Appeal of Florida, Third District.
    Oct. 17, 1978.
    Rehearing Denied Nov. 17, 1978.

      Bartel & Shuford and Stanley Jay Bartel, Morgan, Lewis & Bockius and . Paul J. Levine, Miami, for appellant.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.)., Associate Judge.
   PER CURIAM.

From a judgment entered on a jury verdict in favor of defendants C & P Service Corporation and its insurer The Travelers Indemnity Company, in this wrongful deáth action, the plaintiff appealed.

The plaintiff’s decedent, while at rest on a motorcycle at an intersection, was struck and killed by a truck. The,cause of the accident was due to failure of the truck’s hydraulic brakes. The owner of that and certain other trucks used C & P to gas the trucks and to perform service on them. The brakes on this truck had operated, but for some time had been leaking or losing some brake fluid, for which C & P had added or “topped off” the brake fluid from time to time, including on the morning of the day in the afternoon of which this unfortunate accident occurred.

In plaintiff’s action against C & P, recovery was sought on separate counts of negligence, gross negligence, strict liability, negligence per se, and on breach of warranty.

On this appeal the appellants contend that the trial court erred in refusing requested charges to the jury on the above mentioned claims other than on negligence, and contend the verdict absolving the defendant C & P of negligence was contrary to the manifest weight of the evidence. On consideration of those contentions in light of the record, briefs and argument, we hold they are without merit.

First, as to negligence of the defendant C & P the evidence relating to that issue was in conflict. It would serve no useful purpose here to restate the evidence. A material fact not in dispute was that C & P had not overhauled the brake system. It did not disassemble or reassemble the brakes. It had only added brake fluid. In short, the conflict was that plaintiffs’ evidence was to the effect that in the truck-owner’s dealing with C & P, the latter was to inspect for defects and undertake to make any indicated repairs, whereas the evidence of C & P was to the contrary and to the effect that it was told to make only those repairs which the owner directed. It was within the province of the jury to resolve the conflicts in the evidence, and the verdict rendered on the issues relating to negligence was amply supported by evidence.

At trial the court struck the claim for punitive damages based on claim of gross negligence. In view of the verdict in favor of the defendant C & P on simple negligence, that action of the court was not error.

The refusal of the court to charge the jury on the other asserted grounds for relief was not error.

Strict liability was not involved. Appellant argued that strict liability was imposed on the C & P serviceman by Section 316.261, Florida Statutes (1975), which required motor vehicles operating on a highway to be equipped with brakes as legally required. As pointed out by appel-lees, the mandate of that section of the statute is directed to the owner-operator of a vehicle on the highway, rather than to some other person who may have serviced the vehicle. Whether or not by that section of the statute an operator of a motor vehicle on the highway in violation thereof is guilty of negligence per se is a question on which we need not express opinion in this case.

The court properly refused to give jury charges on implied or express warranty. The sections of the Uniform Commercial Code relating to implied warranty relied on by appellant [Sections 672.314 and 672.315, Florida Statutes (1977)] which relate to a seller of goods are not applicable here. See Audlane Lumber & Builders Supply, Inc., v. D.E. Britt Associates, Inc., 168 So.2d 333 (Fla.3d DCA 1974).

There was no evidence of an express warranty by C & P such as could prompt or justify a charge thereon. C & P had not overhauled and did not disassemble and reassemble the brake system. What it did was add to the brake fluid. That distinguishes this case from Diesel Engine Repair Corp. v. Southern Steel Construction Co., 222 So.2d 234 (Fla.1st DCA 1969), where a repairman after overhauling a diesel tractor orally expressly warranted the labor performed by it for ninety (90) days, and the parts furnished in overhauling the diesel tractor for a distance of 100,000 miles.

Here, although contradicted, there was testimony that on the day involved, after an employee of C & P added the brake fluid he stated to the driver of the truck, in effect, that the brakes were in good condition and should give no trouble. In the circumstances, that was not an express warranty, it was only an expression of an opinion by the serviceman. See Keating v. DeArment, 193 So.2d 694, 696 (Fla.2d DCA 1967); Olin Mathieson Chemical Corporation v. Moushon, 93 Ill.App.2d 280, 235 N.E.2d 263 (1968); Hupp Corporation v. Metered Washer Service, 256 Or. 245, 472 P.2d 816 (1970); Welch Veterinary Supply Company v. Martin, 313 S.W.2d 111 (Tex. Civ.App.1958); 67 Am.Jur.2d, Sales § 445 (1973).

No reversible error having been shown, the judgment is affirmed.

Affirmed.


author: LETTS, Judge.

text:
    Loretta J. CLAY and Kenneth C. Clay, her husband, Appellants, v. R. L. THOMAS, Orange Memorial Hospital Association, Inc., a Florida Corporation, Phoenix Assurance Company, a Foreign Corporation, H. P. Raymond, Employers Fire Insurance Company, a Foreign Corporation, and Edward G. Marmol, Appellees.
    Nos. 77-110, 77-111.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.

      Leonard N. D’Aiuto of D’Aiuto, Walker & Buckmaster, Orlando, for appellants.
    J. Richard Caldwell, Jr. of Pitts, Eubanks, Ross & Rumberger, Orlando, for appel-lees — Orange Memorial Hospital Association, Inc., Phoenix Assurance Company and Edward G. Marmol.
   LETTS, Judge.

The only point on appeal, with merit, concerns the improper conduct of defense counsel which appellants claim denied them a fair trial. We affirm.

During these long-drawn out, heated proceedings, the attorneys for both sides conducted themselves more like fight fans than officers of supposedly dignified courts. Accordingly, first instincts urge us to reverse this cause even though plaintiff’s counsel may have given as good as he got and may have instigated this “Donnybrook” as appel-lee characterizes it. For example, Plaintiff’s counsel ridiculed involved Cuban physicians by mimicking Spanish accents, engaged in innumerable golden rule arguments and suggested that the defendant hospital was a “zoo” which “ . didn’t care about anything except [its] bill, . to heck with the patient.” Moreover, the physician was depicted as one “who needed money more than [the patient] needed her uterus.”

Other samples abound in counsel for the plaintiffs performance, thus when it came the turn of counsel for the defense, he came back strong, during closing argument. He referred to the art of contingent fee representation of injured plaintiffs as “ . the personal injury industry . . . . A whole trade group ... of lawyers, doctors, economists [created] to come into court and sue people.” He chastised the plaintiffs and their attorneys as “just hunting anyone with some kind of assets to pay off these people and these lawyers .... Everyone of them having an ax to grind to build a law suit.” He also referred to the plaintiff’s medical witnesses as “hired mercenaries.” There was more, much more, yet only one minor objection was lodged and no motions for a mistrial were made.

This low level of behavior was not lost on the trial judge, for when the jury verdict found the hospital free of negligence, he said in denying the motion for a new trial:

The closing argument of the attorney for the . . . hospital . . . was so prejudicial that it could not have been cured by an instruction by the court. However, the plaintiffs’ attorney in his final reply argument made an adequate response and this court felt that most of the improper argument had been neutralized.

Seizing on this wording, the appellants correctly cite Akin v. State, 86 Fla. 564, 98 So. 609 (1923) for the proposition that:

The law seems to be well settled that it is the duty of the trial judge, whether requested or not, to check improper remarks of counsel to the jury, and to seek by proper instructions to the jury to remove any prejudicial effect they may be calculated to have against the opposite party. A verdict will not be set aside by an appellate court because of such remarks or because of any omission of the judge to perform his duty in the matter, unless objection be made at the time of their utterance. This rule is subject to the exception that, if the improper remarks are of such character that neither rebuke or retraction may entirely destroy their sinister influence, in such event a new trial should be awarded regardless of the want of objection or exception, at page 612 (emphasis supplied)

We are required to follow the dictates of our Supreme Court and in view of the trial judge’s remarks that the comments were too prejudicial to be capable of cure, it would appear at first blush that the case at bar comes within the Akin exception requiring reversal. However we note the Akin holding was in reality based on a misstating of the evidence rather than intemperate remarks. More important, the appellant’s attorney invited this admittedly highly improper counterattack by gross conduct of his own. As such, we do not believe he should now profit from his own improprieties just because his opponent surpassed him in a display of venom and virulence. We have little doubt that had the verdict been for the plaintiffs, then the defense would now be appealing on exactly the same grounds as has been adopted here by the plaintiffs, that is, improper conduct by opposing counsel. We would, in such event, be equally unsympathetic.

In summation, we quote from another recent decision from our court, Nelson v. Reliance Insurance Company, case number 77-702, Opinion issued September 13, 1978, as follows:

We perceive very few instances where remarks by an attorney are of such sinister influence as to constitute reversible error, absent objection. Le Retilley v. Harris, 354 So.2d 1213 (Fla.4th DCA 1978). Few, if any, objections were lodged about the improper remarks made by defense counsel during closing argument in this case although such remarks [are] numerous[, and no motion for a mistrial was made].
We [take note of] an increasing tendency, by the trial bar, to permit the noble art of trial practice to degenerate into a free-for-all. See Seguin v. Hauser Motor Company, 350 So.2d 1089 (Fla.4th DCA 1978). However while all judges are required by judicial dictates to exercise control over a trial, absent proper objections, neither trial, nor appellate judges can be expected to take on the role of school teachers, continually correcting argument or comment unobjected to by opposing counsel.
We view, with some skepticism, appellant’s agonized cries that comment by opposing counsel below, deprived him of a fair and impartial trial, when not so much as an objection was deemed necessary upon the occasion of the supposedly fatal utterances. We must assume that silence from experienced counsel is a judgment play predicated on his or her concept of how the trial is going. As such the failure to object constitutes intentional trial tactics, mistakes of which are not to be corrected on appeal simply because they backfired, save in the most rare of circumstances, Haist v. Scarp, 351 So.2d 1120 (Fla.4th DCA 1977). But see Akin v. State, 86 Fla. 564, 98 So. 609, 612 (1923).

AFFIRMED.

CROSS and MOORE, JJ., concur.


text:
    Roger BROWN, Appellant, v. Magel H. RAIRIGH and Richard C. Whiteford, as Personal Representatives of the Estate of W. Wayne Rairigh, Deceased, Appellees.
    No. 77-648.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.

      Eugene L. Heinrich of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellant.
    Michael W. Melvin of Kennedy & Melvin, Fort Lauderdale, for appellees.
   LETTS, Judge.

This case involves one friend buying from another a 10% interest in 5 harness race horses, which transaction the trial court ruled, as a matter of law, to be the sale of a “security” in violation of the Florida Blue Sky Laws. We reverse.

The appellant’s primary occupation is that of a successful public relations executive in New York. However, he is a legal resident of Fort Lauderdale and spends much of his time owning, breeding, raising and racing harness horses at the Pompano track. The appellee investor was a wealthy businessman who met the appellant socially on several occasions, so that the relationship between the two grew into a hospitality swapping friendship. Inescapably the public relations executive’s love of horses and his involvement with them became a topic of discussion. It is disputed as to which of the two first suggested that the investor buy an interest in some of the 15 horses then owned by the other, but it is undisputed that the public relations executive had not, with only one exception, previously sold any interest in any of his horses in the manner employed in the case at bar. As such, it is apparent from the facts that he was not in the business of promoting and selling percentage interests in race horses.

Pursuant to their discussions the investor purchased a 10% interest in 5 horses at the end of February, 1974, for $11,675. Under the terms of the agreement, the investor was to receive 10% of the winnings of any, or all, of the 5 horses and pay 10% of all bills and stake fees thereon. Meanwhile, although the agreement is silent on this aspect, it is also undisputed that the public relations executive was to retain custody and control of the horses and undertake all the work of training, caring for and racing them. The agreement further gave the investor an option to purchase a further 25% interest in the same 5 horses at the same price they were valued at on the date of the original agreement (even if the horses were very successful and obviously, therefore, more valuable). Finally, the investor was also given the privilege of selling the horses back to the public relations executive, providing he did so by January 1, 1975, (the price was to be the market value at time of resale, same to be determined mutually, or by a mutually agreeable horse assessor).

We suspect that had the horses won, the investor would have been most content, but they did not and suffered health problems besides. The investor then wanted his money back, but failed to exercise his privilege of resale on or before the cutoff date. Undismayed, he then claimed that he was sold an unregistered security in violation of Section 517.07 Florida Statutes (1977), and demanded his original stake back plus interest and attorney’s fees.

It has long been recognized that, absent some type of governmental control over the issuance of, and transactions in, securities, many opportunistic and often unscrupulous issuers and dealers in securities will defraud naive or unsophisticated purchasers. 69 Am.Jur.2d 591. The legislative purpose then, in enacting these so called “Blue Sky Laws,” was aimed at “speculative schemes which have no more basis than so many feet of ‘blue sky;’ ” Hall v. Geiger-Jones Co., 242 U.S. 539, 37 S.Ct. 217, 61 L.Ed. 480 (1917).

Like so many other regulatory statutes, just as fast as they are enacted, the same unscrupulous issuers find more and more loopholes which the legislature keeps on plugging, until the latter day result is a statute that technically might prevent two brothers from purchasing a share in their sister’s business, without going through the frighteningly complicated and expensive business of registration. Thus we find, under Section 517.02(1), Florida Statutes (1977), that the word “security” spawns an 18 line definition, in which is included the term “any investment contract.” However the term “investment contract” is not itself statutorily defined and we therefore are required to look to the Supreme Court case of S. E. C. v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946) for the classic definition of the term. This definition, known as the Howey test, requires:

(1) an investment of money
(2) in a common enterprise
(3)with the expectation of profits to be derived solely from the efforts of the promoter or a third party.

Adapting these three criteria to the case at bar we have no trouble in finding that there has been an investment of money and that the profits are to be derived solely from the efforts of the promoter. We also can take judicial notice of the fact that joint ownership of race horses can be big business indeed, rising to astronomical levels when we consider the likes of Secretariat, Seattle Slew and Affirmed. The question however remains, do they all necessarily involve a common enterprise and more to the point, is a common enterprise to be found in the case at bar? We think not.

There are basically three lines of cases interpreting the phrase “common enterprise.” First of all, there are those that require more than one investor and some kind of joint participation or dependency between investors must be present. See for example, Milnarik v. M-S Commodities, Inc., 457 F.2d 274 (7th Circuit 1972). This view has been adopted by our own Third District in the last few months. See Blacker v. Shearson Hayden Stone, 358 So.2d 1147, opinion filed May 16, 1978.

There is a second line of cases that finds a common enterprise even though there is no joint participation or dependency among the investors. The courts reason that, even though there is no actual interaction between investors, the fortunes of all of them are inextricably tied to the effectiveness of the promoter in securing multiple recruits, so that in truth they are not independent of each other. See for example, S. E. C. v. Koscot Interplanetary, Inc., 497 F.2d 473 (5th Circuit 1974).

The third line of cases simply holds that a common enterprise exists even where there is only a one-on-one relationship between the promoter and investor. Huberman v. Denny’s Restaurants, Inc., 337 F.Supp. 1249 (N.D.Cal.1972). In Huberman the court found a common enterprise even though only two parties were involved because both of them had an interest in the success of the venture and “were going to benefit from the productive operation of the [isolated transaction].”

To us, this Huberman case goes too far because it reduces the word “common” to mere surplusage and the word “enterprise” is all that is left. Obviously even one single promoter and one investor are inevitably involved in a mutual project, or enterprise, hopefully for profit, unless the promoter plans to abscond with the funds. Moreover, every applicable situation is going to involve at least one investor and one promoter. Therefore, if this single union is all that is required to constitute a “common enterprise,” then the definition set forth in the Howey test is meaningless. We choose to believe it must have some meaning and thus we adopt the view that not only should there be more than one investor, but there should be some form of interaction between the investors, or, in the alternative, if there is no such interaction between investors then the success of the enterprise should be dependent upon obtaining a number of investors.

The Supreme Court in Howey, supra, also seems to suggest that investment contracts require multiple investors. How-ey stated:

A common enterprise managed by respondents or third parties with adequate personnel and equipment is therefore essential if the investors are to achieve their paramount aim of a return on their investments.
66 S.Ct. at 1103.

All this being so, the case at bar is not a common enterprise for there is only one investor. There being no common enterprise, the sale involved was not that of a security and Section 517, of the Florida Statutes is not applicable. In so holding, we have not forgotten the case of Marshall v. Harris, 276 Or. 447, 555 P.2d 756 (1976) which is another case of percentage investment in race horses. There the court found the investment to be an “investment contract” and therefore a “security.” However the court, either accidently or on purpose, never got around to discussing the required common enterprise element of an investment contract as defined by the Howey test. Nonetheless we note that there were five investors in Marshall v. Harris and at least some participation by the investors in one and the same horse. For this reason we would distinguish it.

We are fortunate to be able to decide this case upon the relatively simple premise that there was only one investor. However by doing so we do not mean to preclude the possibility that we might have arrived at the same result if the appellee’s wife and or brother had similarly purchased additional fractional interests. Section 517.21 provides that sales made in violation of the chapter are “voidable” rather than void. This being so, we note, for example, the language of Dokken v. Minnesota-Ohio Oil, 232 So.2d 200 (Fla. 2nd DCA 1970) wherein the court stated,

. the courts have held that the purchaser of securities sold in violation of the [statute] may be estopped by his conduct from asserting the invalidity of the transaction.
* sic * * Jjc *
Estoppel depends upon the facts and circumstances of each case.

As was noted by the dissent in Marshall v. Harris:

It is going to be a shock to a rancher who sells a fractional interest in a horse or a registered bull to his neighbors to learn that his sale is considered in the same category as the sale of a worthless corporate stock or security and subject to the Blue Sky Law.
I do not believe the legislature intended the plaintiffs’ sale in the case at bar to be subject to the [Oregon] Securities Law.

We are in sympathy with the underlying thought in this dissent and if a similar issue is presented to us, we will carefully evaluate the attendant facts and circumstances to see if estoppel would be applicable. If an investor is fully informed as to all aspects of his investment prior to purchase, and if he is fully aware of the use to which his proceeds will be put, then in such event his conduct, when considered together with other facts and circumstances, may well estop him from seeking relief under the Blue Sky Laws, providing however that the promoter or issuer is not in the business of promoting or issuing and providing further that the sale has not been made with any direct or indirect intent to violate or evade the provisions of Section 517 of the Florida Statutes.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT IN ACCORDANCE HEREWITH.

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

      . We agree this does not qualify as an isolated sale under § 517.06(3). The vendor here must, by definition in § 517.02(5), be an issuer. However, we doubt that the legislature intended that a sale such as this could not be considered as an isolated sale.

      . There is no concomitant protection for unsophisticated sellers who are persuaded to sell part of their businesses by purchasers, the latter knowing full well that they have an absolute out, plus interest and attorneys fees, if the business flounders.

      . The word “solely” has been modified in several cases and expanded to cover those who control the essential managerial conduct. S. E. C. v. Koscot Interplanetary, Inc. (infra).

      . The statute defines promoter in a roundabout way. § 517.02(5) says: “Issuer” shall mean and include every person who proposes to issue, has issued, or shall hereafter issue any security. Any person who acts as a promoter for and on behalf of a corporation, trust, or unincorporated association or partnership of any kind to be formed shall be deemed as issuer.

      . For a scholarly discourse on the ever expanding regulatory field of securities, see Mofsky, Some Comments On The Expanding Definition of “Security, ” 27 U. of Miami L.Rev. 395.


author: CROSS, Judge.

text:
    James D. SMITH, Sr., Executor of the Estate of Max Holley, Deceased, and Mary L. Holley, Deceased, Appellant, v. Executrix-Estate of Vivian Otsie HOLLEY, Deceased, Appellee.
    No. 77-864.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.
    Frederick M. Dahlmeier of Cromwell & Remsen, Riviera Beach, for appellant.
    Arthur E. Barrow of Caldwell, Pacetti, Barrow & Salisbury, Palm Beach, for appel-lee.
   CROSS, Judge.

James D. Smith, Sr., as Executor of the Estate of Max Holley, deceased, and as Executor of the Estate of Mary L. Holley, deceased, seeks through interlocutory appeal review of an order denying a motion to dismiss a second amended petition for determination of beneficiaries and to void documents. We reverse.

Max Holley, Rex Holley and Vivian Holley were the sole surviving children and heirs to the Estate of Loren Holley, who died in 1947. Under their father’s will, each child received, inter alia, a one-third undivided interest on a certain piece of real property located in what is now known as Lake Worth (previously Lucerne), Florida. In 1957, Rex Holley and Vivian Holley, as grantors, executed a deed on behalf of Max Holley, as grantee, granting to Max an undivided one-third interest in the subject real estate. Subsequently, Max Holley entered into a lease agreement for the real property and therein described the lessors as Rex Holley, Max Holley, Vivian Holley and Mary L. Holley, Max Holley’s wife. The lease was executed by Max Holley, as Trustee for Rex and Vivian Hqlley.

Rex Holley died unmarried in 1961, and left his purported one-third interest in said property in equal shares to his brother Max and sister Vivian.

In 1968, Max Holley died and left his interest in the property to his wife, Mary L. Holley. James D. Smith, Sr., the appellant herein, was appointed Executor of the Estate. On April 12,1974 Mary L. Holley died and bequeathed her undivided interest in the property to her children and grandchildren in proportions not here relevant. James D. Smith, Sr. was appointed Executor of her estate also.

Subsequently, on December 17,1974 Vivian Holley, as grantor, executed a quitclaim deed to the property in favor of James D. Smith, Sr., as, Executor of Max Holley’s Estate. This quitclaim deed contained the following recitation:

“This deed is given to correctly express the grantor’s intention with respect to a certain warranty deed from Rex Holley and Vivian Holley, as Grantors, and Max Holley, as Grantee . . . [the 1957 deed]. It was the Grantors’ intention in such deed to each convey an undivided one-third interest in and to the property described in said deed rather than to jointly convey an undivided one-third interest in and to said property.”

Some three months after the execution of this corrective deed, Vivian Holley was declared incompetent and a guardian was appointed to act on her behalf.

A dispute arose between James D. Smith, Sr., as Executor of the Estates of Max Holley and Mary L. Holley, and the guardian of Vivian Holley over certain transactions relating to the subject property. In particular, the guardian took issue with the 1974 corrective deed, which purportedly granted away any interest which Vivian Holley had in the property. After negotiations, on September 2, 1975, James D. Smith, as Executor, and Margaret K. Manner, as Guardian for Vivian Holley, executed a settlement agreement. The terms of the agreement are irrelevant to the instant appeal, except for the fact that they substantially limited Vivian Holley’s rights in the subject property.

Soon after the execution of this agreement, Vivian Holley died. The executrix of the estate thereafter filed a second amended petition for determination of beneficiaries and to void documents, seeking to rescind the 1975 agreement on the grounds that same had been obtained through fraud and misrepresentation. Mr. Smith, as Executor, filed a motion to dismiss the second amended petition urging that the petition as amended failed to state a basis for relief on the claim of fraud and misrepresentation. The trial court, after hearing, denied the motion. This interlocutory appeal then followed.

The sole issue presented for our determination is whether or not the trial court erred in denying appellant’s motion to dismiss the second amended petition.

The primary basis for the claim of fraud lies in the failure of Mr. Smith to make certain relevant disclosures to the Guardian of Vivian Holley prior to the execution of the 1975 agreement. In particular, the petition alleges that Mr. Smith failed to disclose the existence of a restraint on alienation which required the consent of Vivian Holley before any transfer of the property could be made, which was contained in the Will of Mary L. Holley. Also, the petition alleges that Mr. Smith failed to disclose the true assessed value of the property, or that such property was held in trust by Max Holley for the benefit of Rex and Vivian Holley since 1957. Failure to disclose this information is asserted as the basis upon which rescission of the 1974 deed and 1975 agreement is sought.

Appellant urges the view that before a cause of action for rescission based upon failure to disclose material information may be stated, the petition must allege sufficient facts to demonstrate the existence of a duty to disclose such facts. This is an accurate statement of the law in this state. See 14 Fla.Jur., Fraud and Deceit § 29. It is axiomatic that circumstances constituting fraud or mistake must be stated with particularity. Fla.R.Civ.P. 1.130(b). Since the petition alleges fraud based upon failure to disclose material information, it must contain sufficient allegations to establish a duty on appellant’s part to make full disclosure, especially in light of the fact that at the time the agreement was executed, the parties were adversaries in contested litigation. See Columbus Hotel Corporation v. Hotel Management Co., 116 Fla. 464, 156 So. 893 (1934).

The instant petition merely alleges that “James D. Smith, Sr. had a duty to disclose to the guardian the facts as alleged but failed to do so.” This is a statement of legal conclusion unsupported by allegations of ultimate fact, and as such, is insufficient to sustain a cause of action for rescission based on fraud.

Accordingly, the order denying the motion to dismiss the second amended petition is reversed, and the cause remanded with directions to dismiss the second amended petition with leave to amend.

Reversed and remanded.

DOWNEY, C. J., and MOORE, J., concur.


text:
    RICHARD’S PAINT MFG. CO., INC., Appellant, v. ONYX PAINTS, INC., a Florida Corporation, and Tri-County Painting, Inc., a Florida Corporation, Appellees.
    No. 77-1245.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.

      Christian D. Searcy and Edna L. Caruso formerly of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, and Grady W. White, Melbourne, for appellant.
    Bruce A. Zeidel of Chalek & Harris, P. A., West Palm Beach, for appellees.
   LETTS, Judge.

This appeal comes to us by way of a third-party complaint resulting in an award to the third-party plaintiff of a sum far in excess of that sought in the original complaint. We reverse in part and remand.

Originally, a wholesale paint dealer sued a customer for an account stated in the sum of $2,458, said account incurred by reason of paint supplied to the customer. Thereafter the customer filed a counterclaim for breach of expressed and implied warranties resulting in actual damages which it incurred in the sum of $4,000 by reason of the supplied paint being unfit for use. Upon receiving the counterclaim, the wholesale paint dealer filed a third-party complaint against the manufacturer for all of said paint supplied to the customer and in addition for all the paint that it had ever bought, including paint which had nothing whatever to do with the subject of the original complaint. The grand total of all paint purchased was in excess of $10,000 all of which sum was awarded to the third-party plaintiff in the final judgment.

Florida Rules of Civil Procedure, Rule 1.180 provides:

(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defendant as a third party plaintiff may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him FOR ALL OR PART OF THE PLAINTIFF’S CLAIM AGAINST HIM. . . . (emphasis supplied)

From a reading of the foregoing, we are of the view that any defendant who responds with a third-party complaint, is limited to a recovery of a sum of money not in excess of the plaintiff’s original claim. Miramar Construction, Inc. v. El Conquistador Condominium, 303 So.2d 81 (Fla.3d DCA 1974).

The wholesale paint dealer argues that recovery can be had in an amount greater than that asserted by the original plaintiff and cites, for example, Noland Company v. Graver Tank and Manufacturing Co., 301 F.2d 43 (4th Cir. 1962). The wholesale paint dealer further points out that the Florida rule is patterned after the Federal rule cited in this Noland case. However, we note that the Federal rules have been amended since that case, to also provide that “a party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as he has against an opposing party.” Florida has no counterpart to this amended provision in Rule 18 and we feel (as apparently the Federal Courts did) that its presence is necessary to support a greater award than the original amount sued on. Accordingly, we conclude that the rule means exactly what it says and no more.

The final judgment is affirmed in all other respects, but this cause is remanded to the trial court so that the judgment in favor of the wholesale paint company and against the manufacturer can be reduced to $4,000.

In all other respects, not in conflict herewith, the final judgment is affirmed.

REVERSED IN PART AND REMANDED.

CROSS and MOORE, JJ., concur.

      . Fed.R.Civ.P. 18(a).


author: BERANEK, Judge.

text:
    WALT DISNEY WORLD CO., Appellant, v. MEMORIAL HOSPITAL, a/k/a Hollywood Memorial Hospital, Appellee.
    No. 77-1343.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.
    John L. O’Donnell, Jr., of Helliwell, Mel-rose & DeWolf, Orlando, for appellant.
    John A. Leklem, of Anderson & Leklem, P. A., Orlando, for appellee.
   BERANEK, Judge.

This is an appeal from an order dismissing a third party complaint against a hospital with prejudice. Appellant is the defendant/third party plaintiff. The hospital is the appellee/third party defendant. In this case the original plaintiff sued the defendant, Walt Disney World Co., for an injury on the premises of the defendant resulting from defendant’s alleged negligence. The defendant filed a third party action against Memorial Hospital alleging the plaintiff’s injuries were aggravated by negligent treatment in the hospital. The complaint sought indemnity and contribution from the third party defendant. The trial court dismissed the third party action against the hospital on the grounds that third party claimant did not allege that the action had been the subject of a prior mediation proceeding before an appropriate medical liability mediation panel in accordance with § 768.44, Fla.Stat.

A claim for indemnity in a situation similar to this was the subject of Supreme Court consideration in Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977). Under the clear dictates of that decision, there is no valid claim for indemnity between these parties.

The contribution claim is a distinct matter. This claim is based on § 768.31, Fla. Stat., known as the Uniform Contribution Among Joint Tortfeasors Act. This statute creates a new cause of action for contribution among joint tortfeasors. The parties have apparently assumed the validity of this contribution claim. We expressly do not decide this issue. Our decision now relates only to the requirements of § 768.44 Fla.Stat., and whether mediation is required thereby.

The appellee Hospital argues that this is a medical malpractice case within the meaning of § 768.44, Fla.Stat., which provides in relevant part as follows:

“Any person or his representative claiming damages by reason of injury, death or monetary loss on account of alleged malpractice by any medical or osteopathic physician ... or health maintenance organization against whom he believes there is a reasonable basis for a claim shall submit such claim to an appro- ■ priate medical liability mediation panel before that claim may be filed in any court of this State.”

Since the malpractice claim against the Hospital was not submitted to a medical mediation panel, it is urged that the trial court correctly dismissed the cause.

The appellant argues that this is not the type of claim ever intended to be mediated, that it is not a malpractice claim because it is a statutory claim for contribution and that constitutional safeguards prohibit dismissal of the action.

The policy of the State of Florida is that announced by the Legislature in the statute now designated as § 768.44, Fla.Stat. The purpose of this statute was to meet a crisis in the area of medical care. The preamble of the statute initially enacted in Chapter 75-9, Laws of Florida, was to the effect that the prohibitive cost of medical malpractice insurance might well cause doctors to curtail their practices, retire or practice defensive medicine at increased cost to the citizens of Florida. In recognition of this problem of crisis proportion, the Florida Legislature established certain barriers to the bringing of malpractice claims against doctors and health care providers. Clearly, through this statute, the alleged negligence of a hospital is treated differently from the negligence of a landowner. These distinctions in treatment have been upheld by the Florida Supreme Court as a valid categorization notwithstanding a multi-faceted constitutional attack. In Carter v. Sparkman, 335 So.2d 802 (Fla.1976), the Court stated that:

“Even though the pre-litigation burden . reaches the outer limits of constitutional tolerance, we do not deem it sufficient to void the medical malpractice law.”

The constitutional argument of class legislation favoring a particular group of defendants is dramatically illustrated in this situation where the personal injury plaintiff may sue defendant, Walt Disney World Co., for negligence, but this same defendant may not sue the Hospital for contribution without first submitting the claim to mediation under § 768.44. By legislation this disparate standing within legal processes is justified by the end sought to be accomplished.

In the instant situation we cannot accept appellant’s argument that because the claim is based on a contribution statute, it does not fit within the medical malpractice mediation requirements. The claim is clearly one for medical malpractice. Unless some portion of the plaintiff’s damages is due to fault of the hospital, there will be no contribution between the third party defendant and third party plaintiff. We stress that the mediation required here is not the mediation of the contribution claim but is instead the mediation required of the issue of actionable negligence. Therefore, under the statute, a mediation panel must first answer the question of whether the hospital was actually action-ably negligent in the care or treatment of the patient. Under all of the circumstances, we can see no reason to hold that the instant claim does not come within the statute. Appellant urges consideration of Mount Sinai Hospital of Greater Miami, Inc. v. Mora, 342 So.2d 1063 (Fla. 3d DCA 1977). This case is readily distinguishable and we hold it has no application here.

The dismissal with prejudice below is hereby affirmed.

AFFIRMED.

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


text:
    Ansell JEFFERIES, Jr., Gloria D. Jefferies and First Federal Savings and Loan Association of the Palm Beaches, Appellants, v. H. Raymond CORWIN and J. Denham Corwin, Appellees.
    No. 77-1383.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.
    William M. Holland of Holland & Smith, West Palm Beach, for appellants, Jefferies.
    Douglas C. Zahm of Wood, Cobb, Murphy & Craig, West Palm Beach, for appellant, First Federal.
    Arthur G. Wroble of Burns, Middleton, Farrell & Faust, Palm Beach, for appellees.
   BERANEK, Judge.

This is an appeal from an order granting summary final judgment in favor of the plaintiffs/appellees. All parties here stipulated to the facts before the trial court and submitted to a resolution of the cause by summary judgment. The cause of action involved the foreclosure by the appellees of a vendor’s lien on real property. The Jef-feries, appellants, are the current owners of the property to which the lien is attached and First Federal Savings as holder of a mortgage on the land has joined as appellant.

On October 5, 1967, Bertha Corwin conveyed the subject property to one Rosa McCray by warranty deed subject to a vendor’s lien payable six months later. In 1969 Rosa McCray deeded the property to the Jefferies and in 1970 the Jefferies secured a mortgage loan on the property from First Federal Savings. In October, 1976, Bertha Corwin assigned her vendor’s lien to the appellees herein who filed a complaint to foreclose the lien on November 11, 1976. Appellants asserted at summary judgment that § 95.281 Fla.Stat. limited action on the lien to five years from its date of maturity. The appellees countered that the foreclosure was an equitable proceeding governed by the doctrine of laches and not bound by statutes of limitation. The court granted summary judgment to the appellees foreclosing the lien. We reverse.

While we recognize that equitable proceedings are governed by laches rather than a strict application of the statute of limitations, the facts of the cause were stipulated to and no strong equities favoring appellees are apparent from the record. Unless strong equities compelling application of a different rule are made to appear, a court of equity should apply the statute of limitations in an equity suit with the same substantial effect and construction as it would receive at law. Tower v. Moskowitz, 262 So.2d 276 (Fla.3d DCA 1972). The trial court abused its discretion here in not applying the statute of limitations where no strong equities were present favoring ap-pellees.

Reversed and remanded for further proceedings consistent with this opinion.

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


author: DOWNEY, Chief Judge.

text:
    Alfred M. SCATTERGOOD, Appellant, v. Marguerite S. SCATTERGOOD, Appellee.
    Nos. 77-1632, 77-1725.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.
    Ronald Sales of the Law Office of Ronald Sales, Palm Beach, for appellant.

      William M. Cobb of Sullivan & Cobb, Vero Beach, for appellee.
   DOWNEY, Chief Judge.

The wife had a net worth of approximately $300,000 when these proceedings were commenced; that estate produced income in the amount of $19,500. The husband’s net worth was approximately $440,-000 and his reported income for 1976 was approximately $20,000. After the final -judgment the parties’ net worth was approximately equal. The husband is a realtor owning an active successful real estate agency. Both parties were in their early fifties and in bad health.

The parties lived rather lavishly and that factor, along with the other usual considerations, supports the trial judge’s award of periodic alimony. However, different considerations pertain in determining an award of attorney’s fees. Since the parties stand on an equal footing as far as their net worth is concerned and the wife has income of approximately $19,500 per annum (not to mention the $600 per month alimony) she does not meet the test for an allowance of attorney’s fees. As the Supreme Court stated in Cummings v. Cummings, 330 So.2d 134, 136 (Fla.1976):

“ ‘. . . the purpose of awarding attorney fees under the new dissolution of marriage law has not changed, in our view, from the purposes contemplated by its predecessors; that purpose is to insure that both parties will have reasonably the same ability to secure competent legal counsel. Here, the wife is clearly on equal if not superior footing with the husband to secure such counsel. . . .

In a very recent ease the First District Court of Appeal followed the Cummings rule, saying:

“Although there are conflicting estimates of the parties’ respective net worths, the record reveals that both parties have substantial assets. This court has held consistently that when a party has been shown to have the ability to pay for the services of his or her attorney, it is improper to require the other party to pay for those services, even though he or she may have the ability.”

See also Colman v. Colman, 314 So.2d 156 (Fla. 4th DCA 1975); Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973).

Unquestionably the wife here had the same financial ability to obtain legal representation as did the husband.

Accordingly, the final judgment is reversed as to the award of attorney’s fee to the wife and in all other respects the final judgment is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

CROSS and BERANEK, JJ., concur.

      . Butts v. Butts, 362 So.2d 349, 1st DCA Opinion filed August 10, 1978.


text:
    Dorothy M. WEEKS, Appellant, v. James A. WEEKS, Appellee.
    No. 77-1697.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.

      William C. Irvin, Cocoa Beach, for appellant.
    No appearance for appellee.
   LETTS, Judge.

The wife here appeals a dissolution of marriage judgment which did not award her any permanent alimony. We reverse.

The parties were married for eighteen (18) years and adopted two children. The son is seventeen and suffers from cerebral palsy, while the daughter is thirteen and has behavioral and emotional problems.

The wife has a part-time job in a thrift shop for $50.00 a week and the husband’s income is $17,000 per year. The record reveals the childrens’ problems make it almost impossible for the wife to hold a normal full-time job. Both children are in her care, custody and control.

Notwithstanding the foregoing, the trial court failed to award the wife any permanent alimony. Under the facts outlined above, we consider this to be reversible error. See McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977).

Accordingly, the final judgment is hereby reversed and this cause is remanded with directions to the trial court to make a suitable award of permanent alimony.

In all other respects the final judgment is affirmed.

REVERSED AND REMANDED.

CROSS and MOORE, JJ., concur.

      . Wife’s job was due to terminate the week of trial.


text:
    MIAMI HERALD PUBLISHING COMPANY, a division of Knight-Ridder Newspapers, Inc., d/b/a The Miami Herald and Palm Beach Newspapers, Inc., d/b/a The Palm Beach Post, Appellants, v. STATE of Florida and Peter Joseph Salerno, Appellees.
    No. 77-2530.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.

      Talbot D’Alemberte and Donald M. Mid-dlebrooks of Steel, Hector & Davis, Miami, for appellant — Miami Herald Publishing Co.
    Florence B. Snyder, Boca Raton, for appellant — Palm Beach Newspapers, Inc.
    James D. Spaniolo, Miami, Staff Counsel for appellant — Miami Herald Publishing Co.
    Robert L. Shevin, Atty. Gen., Tallahassee, James D. Whisenand, Deputy Atty. Gen., and Douglas C. Kearney, Asst. Atty. Gen., Tallahassee, for appellee — State of Florida.
    Philip G. Butler, Jr. of Foley, Colton & Butler, P.A., West Palm Beach, for appel-lee — Peter Joseph Salerno.
   LETTS, Judge.

Two major newspaper chains here appeal a trial Judge’s decision which excluded the media from a sentencing hearing and thereafter sealed the record thereof.

We affirm but also remand.

In the case at bar Salerno, a jewel thief internationally known to the authorities, was convicted of burglary and grand larceny charges. Some eleven months later at the request of defense counsel and with the acquiescence of the State, the trial judge, without warning, cleared the courtroom and conducted a two hour closed sentencing hearing. The press was only allowed to return to hear the sentence pronounced — 15 years probation. A court reporter was in attendance at the hearing and a complete transcript was prepared and sealed. Subsequently, the appellant newspapers filed a motion to intervene and a motion to vacate the order sealing the transcript. The motion to intervene was granted, the trial court recognizing the newspapers’ standing to question the orders in issue. The motion to vacate was denied after a hearing in a written order which stated in part:

The Court finds that in the present case there are substantial compelling and cogent reasons existing that require that the record of the sentencing proceedings be sealed and remained sealed, at least for the time being. However, as discussed in News-Press Pub. Company, Inc. v. State, [345 So.2d 865] supra, at page 867, a specific and thorough statement of these reasons would subvert the Court’s purpose in sealing the sentencing proceedings. For this reason the Court is unable to state with specificity the nature of the existing reasons that require nondisclosure of the sentencing proceedings in the present case.
During the pendency of the present case the Court has received information from counsel for the State of Florida and the Defendant. In addition the Court has received information from other individuals with the full knowledge and acquiescence of counsel for the State of Florida and the Defendant. Based on this information, which the Court is not at liberty to disclose at the present time, the Court feels that the personal safety of one or more individuals whose identity or identities are known to the Court but cannot be disclosed, would be severely jeopardized if the contents of the record of the sentencing proceedings were revealed at the present time. For this reason, it is hereby,
ORDERED AND ADJUDGED: That the records of the sentencing proceedings in the present case should be sealed and remained sealed until further order of the Court. Further, counsel for the State of Florida and the Defendant are hereby ordered to advise the Court of any pertinent developments that would remove the present reasons that exist for sealing the records in order that the Court may properly disclose the contents of the record at some appropriate future time. Further, the Court advises all parties that the sentence proceedings have been transcribed and are currently sealed and in the custody of the Court. The transcript is available for an “in camera” inspection by an Appellate Court to permit review of the present Order upon proper order from the Appellant Court.

This appeal followed.

According to the appellants, this judicial action “touched off a storm of controversy in Palm Beach County” and “as a direct result of the court’s order, the climate of public opinion surrounding this case reflects distrust for the integrity of the judicial process.” From the record provided to us, the only evidence of such a happening consists of grumbling on the part of two police officers, one of whom added that he trusted the judge to be fair and honest. Thus, any outrage was not expressed by members of the public as such, but by the media. Nevertheless we recognize that the opinions of the press are, in truth, a form of public expression because the media acts as the public’s primary agent. This agency was succinctly expressed by Judge Hendry in Miami Herald Publishing Company v. Collazo, 329 So.2d 333 (Fla. 3d DCA 1976):

An informed public depends on accurate and effective reporting by the news media. No individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities. For most citizens the prospect of personal familiarity with newsworthy events is hopelessly unrealistic. In seeking out the news the press, therefore, acts as an agent of the public at large. It is one of the primary means by which we receive that free flow of information and ideas essential to intelligent self-government. The underlying right to know is the right of the public generally. See Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); and Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966).

We first hold that the public’s right to be informed continues beyond the trial itself and also applies to sentencing proceedings. We find no supporting case on this precise point, but confidently base our conclusion on the premise that “what transpires in the court room is public property.” Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947). It is true that, within the parameters of his discretion, a trial judge can pass whatever sentence he chooses, without the need to explain it, either to the press, or to us. However, if the pronouncement is based on any tangible proceeding or document presented in the courtroom, it is within the public domain unless covered by some designated exception.

Much is argued about whether these proceedings should have been opened or closed, yet the newspapers contend that that single issue is not really dispositive and state in their reply brief:

But appellants have not argued, as the State seems to suggest, that courts are without power to issue closure orders in all cases. The appellants do contend, however, that constitutional values are involved and such orders cannot be entered absent a showing that (1) closure is necessary to prevent a serious and imminent threat to the administration of justice, (2) that no less restrictive alternative measures are available, and (3) that closure will in fact achieve the Court’s purpose.

We agree with the newspapers in all three respects.

In the case at bar, the trial court quite properly cited News-Press Pub. Co., Inc. v. State, 345 So.2d 865 (Fla. 2d DCA 1977) as a reference for its authority to seal the transcript. As was said in the News-Press case:

By virtue of its inherent power to control the conduct of its own proceedings, there is little doubt that under certain circumstances the courts may exclude the public and the press from its proceedings, but such authority must be cautiously exercised. State ex rel. Gore Newspapers Company v. Tyson, 313 So.2d 777 (Fla. 4th DCA 1975). As applied to the instant case, a showing that the opening of the depositions might endanger a person’s life could well justify the order entered below. On the other hand, an understandable desire to protect the victim’s family from exposure of the details of what was apparently a heinous crime would not warrant an order which would preclude public access to official court records in the form of these depositions. The press must be counted on to report such facts in a responsible manner. The desirability of press access to criminal proceedings was emphasized in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), when the U.S. Supreme Court said:
“. . .A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. . . . ”
There must be some compelling reasons before some or all of the records of a court proceeding may be sealed. Moreover, these reasons should be specifically set forth by the sealing authority in order that the legality thereof can be reviewed. The basis for closing the records can be sufficiently stated without divulging the information sought to be protected. If the reasons given for sealing the records are deemed to be facially sufficient but their application to the records under consideration is questioned, the reviewing court may always exercise an in camera inspection of the records to see if the reasons given by the sealing authority are borne out. (Id. at 867 emphasis supplied)

The trial court specifically stated that the personal safety of one or more individuals would be severely jeopardized if the contents of the transcript were disclosed. These reasons for sealing the record, at the actual time it was done, are borne out by this court’s examination of the sealed, sworn to , transcript.

But, as noted above, the appellants do not claim that there are no instances in which records may be sealed or hearings closed. Rather, they correctly claim that the trial court erred in the procedure followed. As was said by our Supreme Court in State ex rel. Miami Herald Pub. v. McIntosh, 340 So.2d 904 (Fla.1977):

Although freedom of the press belongs to all the people those who gather and distribute news have special concerns which entitle them to notice and a hearing BEFORE any trial court enjoins or limits publication of court proceedings. The circumstances may require a summary hearing but reasonable notice under prevailing conditions and a hearing must be had in each instance. (Id. at 910, emphasis supplied)

In the case now before us, Judge Stewart did it backwards and held his secret proceeding first, then later held a hearing to receive the protests of the media and its demand that the record be unsealed. This was improper. True, the McIntosh case involved a gag order (prior restraint) rather than a sealing of the record, but, so far as the media is concerned, the distinction is one of form rather than of substance, inasmuch as the end result in both cases is a withholding of the publication of court proceedings. We are of the opinion that the error was cured by the later hearing held, but the McIntosh language says nothing about such a “seal now and explain it later” approach. Nonetheless we are of the opinion that a later hearing sufficed because we see no prejudice to the media. Had the hearing been held first, the press could have argued no more than it subsequently did because either way it knew no facts to argue and could only make blind assertions. Herein lies the ultimate distinction between a McIntosh gag rule situation and the one before us now, for the media is at an unfair disadvantage in the latter. At any hearing, such as was held here, the proponents of the closing can argue that there exist cogent and compelling reasons for the closing in the form of imminent personal peril. The media is thereupon reduced to responding that there are not, without any actual knowledge of that which it asserts. We find this unfair to the media yet can offer no cure at the trial level, short of requiring an open rather than a closed hearing and allowing the entering of a subsequent gag order if deemed necessary. Such a solution might be workable, but we cannot implement it at this level. The latest Supreme Court rule on the subject [Fla.App.R. 9.100(d)] specifically envisages proceedings from which the press is excluded. Such would certainly pre-empt us from a major departure from this concept under which we would prefer to include the press at all hearings and then “gag” them if required.

In the meantime the media is not without its remedy for the new rules and the McIntosh case has supplied it with standing to appeal all trial court rulings inhibiting dissemination of the news, in the very manner here employed.

As we have already said, we agree from our reading of the sealed record, that there were cogent and compelling reasons to support Judge Stewart’s decision to seal it (at any rate at the time he did so) and there was, at that moment, imminent personal peril to the lives and safety of witnesses. McIntosh, supra. News-Press, supra. This being so, we must continue to withhold the publication of this record, subject to the provisions of this opinion hereinafter set forth.

Pursuant thereto we note that Judge Stewart’s order provided in part that “. . . counsel for the State of Florida and the Defendant are hereby ordered to advise the Court of any pertinent developments that would remove the present reasons that exist for sealing the records in order that the Court may properly disclose the contents of the record at some appropriate future time.” Relative to this, we also note, a subsequent sealed motion and resulting order dated 16th December 1977 which appears to us to “remove the present reasons” for sealing the record. We, therefore, remand this case to the trial court to consider:

1. Whether the events contemplated in said December order have come to pass and if they have, why cannot the record be unsealed.
2. Whether it is necessary to seal all of the record of the hearing even if it continues to be necessary to seal a part of it.
3. The length of time that the record must continue to be sealed if such is still necessary.
4. Whether there are alternatives other than sealing the record.

Accordingly, we remand this cause for a further hearing in accordance herewith, which may be closed. However, any order resulting therefrom must either set forth express findings in accordance with our four directions, or alternatively open the record.

AFFIRMED AND REMANDED.

DOWNEY, C. J., and ANSTEAD, J., concur.

      . One of the appellant’s concerns is that it has no knowledge on whether the information reviewed by the court was under oath. It was.

      . Notwithstanding this conclusion, we approve this procedural defect in this case only and our ruling should not be used as precedent for the future.

      . These 4 considerations are either directly discussed or alluded to in the McIntosh case supra.