text:
    Adrian SWAREZ, Appellant, v. Louie L. WAINWRIGHT etc., Appellee.
    No. II-248.
    District Court of Appeal of Florida, First District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 21, 1978.

      William G. Babcock, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen. and Horace Schow, II, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause is before us on appeal from the order of the trial court denying petition for writ of habeas corpus finding that petitioner “has failed to establish that the disciplinary proceedings taken against him were such as to deny him due process of law.”

Petitioner, appellant herein, forfeited 200 days of gain time and was sentenced to disciplinary confinement for a period not to exceed 90 days, as a result of being found guilty of involvement in a disturbance at Raiford. The charges against appellant were unarmed assault, participating in a disturbance and disorderly conduct.

The record establishes that appellant was furnished with a copy of the disciplinary report containing the charges against him and that a disciplinary hearing, at which petitioner was allowed to call a witness, was duly held. Appellant was identified by a number of eyewitnesses as the inmate who struck Officer Morris. Appellant has not denied the assault, but contends that his procedural rights were violated by appel-lee’s failure to call all of the witnesses he requested and failure to furnish copies of the report of investigation or incident reports as well as written reports of the evidence against him.

On consideration of the record, briefs and argument of counsel, we find that respondent’s failure to call all witnesses requested does not violate petitioner’s basic rights or the Florida Administrative Code. Appellant was furnished with a copy of the charges against him in advance of the hearing and was informed of the information contained in the reports. In view of the possible risk of reprisal against inmates and officers who are witnesses to the disturbance, further disclosure was not required. Finally, we note that appellant’s attack on the impartiality of the panel is patently devoid of merit.

Accordingly, the judgment below is AFFIRMED.

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

      . Wolff v. McDonnell, 418 U.S. 539, 566-569, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

      . Fla.Admin.Code § 33-3.08(13)(i).


source: Caselaw Access Project

author: KEHOE, Judge.

license: Public Domain

text:
    Arleen S. RICE, Personal Representative of the Estate of Brian Rice, Deceased, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, and University of Miami, a Florida Corporation, Appellees.
    No. 77-1676.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 15, 1978.

      James B. Denman & Associates, Ft. Lauderdale, for appellant.
    Greenberg, Traurig, Hoffman, Lipoff & Quentel, Daniels & Hicks and Sam Daniels, Preddy, fcutner & Hardy, Miami, and Robert J. Bogdanoff, for appellees.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

By this appeal, Arleen Rice, plaintiff below, contends the trial court erred in granting summary final judgments in favor of appellees, University of Miami [U.M.] and Florida Power & Light Company [FPL], two of multiple defendants in a wrongful death action predicated on negligence. We disagree and affirm the judgments of the trial court.

Brian Rice, appellant’s decedent, was a twenty-eight year old geology student at the University of Miami who was electrocuted in an accident which occurred on November 22, 1975. He and his friend, Richard Eisenberg, also a student at the university, had decided to fly a model airplane over an open field owned and maintained by the University of Miami, which was frequently used as a general recreation area.

Although the field had large open spaces away from power lines, the two men took the plane and its accouterments to a place in the field just north of three uninsulated power lines which traversed the field overhead, and set about preparing the model for flight. Mr. Eisenberg’s girlfriend, Rebecca Columbus, accompanied by Rice’s three year old son, arrived shortly after Rice and Ei-senberg. The two men worked for about an hour at their pre-flight preparations. Then, while Eisenberg held the plane, Rice worked the controls, and activated the model. It was controlled from the ground by two fifty foot metal wires which ran from a control handle to one wing. The plane took off and flew less than half a circle before hitting the power lines. Rice dropped to the ground and died.

When the accident occurred, both Mr. Ei-senberg and Ms. Columbus were present. Their deposition testimony indicated that the day was clear and sunny and that, while neither noticed the overhead power lines prior to the accident, the wires were clearly visible once one looked up a them. Appellant, however, contends there existed an illusory spacial perception of the overhead wires as they related to lines running along the edge of the field. Prior to the flight, neither Mr. Eisenberg nor the deceased looked up to see whether or not there were any overhead power lines.

The three lines which traversed the filed were a 120 volt multiple street light conductor, a neutral wire, and a 7,620 volt primary conductor. At the place where the accident occurred, these lines were, respectively, 18 + feet, 20 + feet, and 27 + feet above ground. The elevation of the primary conductor was nearly twice the 15 foot clearance requirement specified in the National Electrical Safety Code, the industry “Bible.” Yellow paint from the plane was found on the 7,620 volt line, and a portion of the plane’s metal control wire had burned off near the wing.

The deposition of Mr. Eisenberg indicates that the control handle which Brian Rice had assembled and was holding had a warning sticker on it which read:

“Danger of electrocution. Do not fly model airplane near electrical power lines.”

Brian Rice knew of the potential dangers of electricity,, was an “A” student, and had worked part time flying into hurricanes to record meteorological data.

In 1976, Rice’s widow filed suit pursuant to the Florida Wrongful Death Act against the University of Miami, the Florida Power and Light Company, and other defendants not affected by this appeal. In 1977, after a hearing on U.M. and FPL’s separate motions, the trial court executed two orders granting summary final judgment in favor of both appellees. These orders are the subject of this appeal.

We deal first with the judgment in favor of FPL. It is fundamental that unless the defendant was able to show that, as a matter of law, there was no negligence on its part, or that decedent’s negligence was the sole proximate cause of the injury, summary judgment would be inappropriate. Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977); Fla.R.Civ.P. 1.510(c). We direct our attention to the first proposition: Was FPL able to show conclusively that it breached no duty owed to decedent?

The power lines were installed initially in 1955 under permits and franchises granted by the city of Coral Gables, and were located in an easement granted to FPL. Uncon-tradicted evidence shows that the lines were placed in accordance with acceptable engineering practice to serve the existing and anticipated needs of the community.

Appellant contends that a change in the use of the underlying property from the time the lines were installed to the time of the accident, from one of expanding residential growth to one serving primarily recreational purposes, coupled with a change in the service provided by the uninsulated distribution wires, created genuine issues of material fact as to whether FPL should have re-located the lines, insulated them, elevated them still higher, or warned users of hazards.

The field has been used in recent years for general recreational purposes by students of the university and nearby residents. Affidavits in opposition to defendants’ motions for summary judgment indicate that a model airplane attached to a hand control instrument has been flown over the field at least once prior to the accident, but nothing in the record shows that FPL had any actual notice of that fact. (Indeed, the accident appears to be the first in FPL’s history in which an injury resulted from flying a model airplane into a power line.) Affidavits also indicate that kites, and model planes, with or without hand controls, had been flown over the field. Again, there is no indication that FPL had notice of this.

An electric company “is under an obligation to do all that human care, vigilance and foresight can reasonably do, consistent with the practical operation of its plant, to protect those who use its electricity,” but it is not an insurer against all possible accidents. Escambia County Electric Light & Power Co. v. Sutherland, 61 Fla. 167, 55 So. 83, 91 (1911). Accord, Florida Power Corporation v. Willis, 112 So.2d 15 (Fla.1st DCA 1959).

As noted by the Supreme Court of Florida long ago:

“[E]ven where the highest degree of care is demanded, . . . the one from whom it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight. . . . ‘[I]f men went about to guard themselves against every risk . which might ... be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.’ ”

Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 332 (1925).

The fact that the high voltage lines exceeded the clearance specifications of the National Electrical Safety Code is not conclusive of the absence of negligence. Florida Power Corporation v. Willis, supra. But the mere maintenance of uninsulated overhead power lines above land which the power company has the right to use is not, in itself, a negligent act. Reardon v. Florida West Coast Power Corp., 97 Fla. 314, 120 So. 842 (1929). A manufacture of electricity is neither required to insulate wires wherever they are strung nor to maintain useless warning signs, Richmond v. Florida Power & Light Company, 58 So.2d 687 (Fla. 1952), for the propriety of the use of exposed wires depends on their location. Hardware Mutual Casualty Company v. Tampa Electric Company, 60 So.2d 179 (Fla. 1952).

Therefore the key to a determination of whether the trial court was correct in rendering summary judgment in favor of FPL is whether or not it would be reasonable to conclude that the changed use of the land underlying the uninsulated, but clearly visible, power lines, was such a circumstances as would impose upon the utility company a continuing duty to foresee and protect against the type of injury herein at issue, in the absence of actual notice.

Prior decisions in the area are not necessarily dispositive of the issue for numerous reasons, foremost of which is that none deal with an unanticipated change in property use of which the defendant company had no notice.

A review of Florida cases in which potential liability of a supplier of electricity for negligence has been supported reveals that they have often involved circumstances in which the defendant knew or should have known, at the time the lines were installed, of a foreseeable danger, e. g. Stark v. Holtzclaw, supra; Hardware Mutual Casualty Company v. Tampa Electric Company, supra; Simon v. Tampa Electric Company, 202 So.2d 209 (Fla.2d DCA 1967), or situations in which the defendant power company had superior knowledge of a hazard, e. g. Ahearn v. Florida Power & Light Company, 129 So.2d 457 (Fla.2d DCA 1961). Neither of these factors adhere in the instant case.

The cases in which a preemptive procedure absolving an electric company from liability for negligence was upheld were decided prior to the adoption of comparative negligence in Florida, when contributory negligence was a bar to recovery. E. g. Reardon v. Florida West Coast Power Corp., supra; Richmond v. Florida Power & Light Company, supra; Dudding v. Florida Keys Electric Co-operative Association, Inc., 105 So.2d 597 (Fla.3d DCA 1958). However, the rationale applicable to the standard of care required of a supplier of electricity has not changed: if no reasonable duty was abrogated, as a matter of law, no negligence could be found.

The case most nearly on point is Richmond v. Florida Power & Light Company, supra, which upheld a summary judgment in favor of the power company. In that ease, plaintiff was flying a radio transmitter consisting partly of a box kite attached to a copper wire, in a residential area, and was injured when the kite wire contacted the overhead line. While the facts are distinguishable, and the case was decided prior to the adoption of comparative negligence, the rationale of the decision remains pertinent. The court stated:

“The inherent danger of electrically energized wires is well known to all except those of tenderest age, but . . . the need for successful distribution of so necessary a commodity cannot be defeated by requiring that every conceivable protection be afforded wherever wires carrying it may go, so that anyone who chances to come near may be saved from injury in anything he decides to do, however unpredictable.”

58 So.2d 687, 688.

With this admonition in mind, we conclude that, as a matter of law, it would be beyond the bounds of reason to require FPL to foresee an occurrence such as that presented by the instant ease. Had a clear view of the exposed lines not existed, or had FPL had actual notice that individuals were flying model airplanes attached to electrical conductors, the changed use of the underlying property might have been sufficiently persuasive to leave the questions of the existence of a duty and a breach of that duty for the resolution of a jury.

While endorsing the high degree of care to which a power company is held, we decline to impose a continuing duty to protect against any and all activity, however unlikely, occurring in the vicinity of lines which were initially located and installed in a reasonable manner. We hold that FPL’s maintenance of its wires in the place and under the conditions described herein did not fall beneath the level of prudent foresight required of a supplier of electricity. Therefore, as a matter of law, appellee breached no duty owed the decedent. It follows that FPL was not negligent, and the trial court correctly rendered summary final judgment in its favor.

We turn our attention to appellant’s claim that the trial court erred in granting summary final judgment in favor of U.M. Appellant urges that genuine issues of material fact remain unresolved because the university allowed a latent hazard to persist.

We have stated that the existence of unobstructed power lines, clearly visible above an open field is not a latent hazard. See footnote 2, supra. The duty of a landowner to an invitee is to use ordinary care to maintain the premises in a reasonably safe condition for use in a manner consistent with the invitation, and to warn of latent perils which are known or should be known to the owner but which are not known to the invitee or which, by the exercise of due care, could not be known to him. Hickory House v. Brown, 77 So.2d 249 (Fla. 1955); Messner v. Webb’s City, 62 So.2d 66 (Fla.1952); Hall v. Holland, 47 So.2d 889 (Fla.1950); Quinelly v. Southern Maid Syrup Company, 164 So.2d 240 (Fla.2d DCA 1964).

An “owner is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own sense, and is not required to give the invitee notice or warning of an obvious danger.” Hall v. Holland, supra, at 891-92. Messner v. Webb’s City, supra. Nor need he alter the premises to eliminate known and obvious dangers. Hall v. Holland, supra, at 892.

Where an obviously dangerous condition exists, an underlying requirement to liability of a landowner is that he have knowledge of that condition which is superi- or to that reasonably obtainable by the invitee. Rist v. Florida Power & Light Company, 254 So.2d 540 (Fla.1971); Somers v. Meyers, 171 So.2d 598 (Fla.1st DCA 1965); Quinelly v. Southern Maid Syrup Company, supra. Such is not the case on the facts before us.

Therefore we affirm the decision of the trial court rendering summary judgment in favor of U.M. Rist v. Florida Power & Light Company, supra; Simon v. Tampa Electric Company, supra; Somers v. Meyers, supra; Quinelly v. Southern Maid Syrup Company, supra.

Affirmed.

      . This court recently decided a related appeal, Rice v. Walker, 359 So.2d 891 (Fla.3d DCA 1978).

      . Appellant also contends that genuine issues of material fact remain unresolved as to whether FPL was negligent in placing the lines originally, and in creating and maintaining a latent, hazardous condition which was foreseeable. We deem these contentions to be without merit; the former because, as noted above, uncon-tradicted evidence indicates that the original placement of the lines was in conformity with acceptable engineering procedures, and the latter because the record refutes the argument behind the assertion.
      This argument is that a spacial lack of perception as to the distance and location of the lines creates a latent hazard. The record shows that the lines at issue traversed the width of the field and the view of them was totally unobstructed. Although the poles to which the wires were attached were partially obscured by shrubbery, and there were other wires along the perimeter of the field, no impediment to clear view lay between the distribution wires and anyone standing in the vicinity beneath them. Accordingly, we perceive no latent hazard. FPL cannot be charged with negligence on this issue.

      . Our disposition of this issue renders it unnecessary to inquire into whether or not decedent’s negligence was the sole proximate cause of his death.


author: PER CURIAM.

text:
    James W. FORSTER, M.D. and James W. Forster, M.D., as Chief of the Medical Staff of Fishermen’s Hospital, Marathon, Florida, Appellant, v. FISHERMEN’S HOSPITAL, INC., a Florida Non-Profit Corporation, Appellee.
    No. 77-1833.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Rehearing Denied Nov. 15, 1978.
    A. M. Schwitalla, Miami, for appellant.
    Sheldon M. Simons, Miami, for appellee.
    Before HENDRY, HUBBART  and KE-HOE, JJ.

       Judge Hubbart participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

Appellant, plaintiff in the trial court, raises several points on appeal which attack the appropriateness of an order of the trial judge which dismissed appellant’s amended declaratory complaint with prejudice. After a careful review of the amended complaint and the exhibits attached thereto, it is our opinion that appellant failed to state a cause of action against appellees, defendants in the trial court, and therefore, the order of dismissal must be affirmed. We explain.

Appellant, in his individual capacity as a practicing physician and as chief of the medical staff of appellee hospital, filed an action against the hospital, and others, challenging the hospital’s procedure in re-admitting to the medical staff of the hospital, a certain physician whose medical staff privileges had been previously revoked for unprofessionalism and patient neglect. It is appellant’s contention that the re-admission of this physician was in direct contravention of certain established internal procedures of review in force at the hospital.

In his order of dismissal, the trial judge found that pursuant to these same internal procedures of review (1) the Board of Trustees of the hospital has the ultimate authority and responsibility to reinstate a physician and (2) appellant, whose individual rights were not being challenged, had no standing to institute this lawsuit.

An order from the trial court arrives in the reviewing court clothed with a presumption of correctness and it is incumbent upon an appellant who asserts error to clearly show it. Castellanos v. Hialeah-Miami Springs First State Bank, 330 So.2d 100 (Fla. 3d DCA 1976). As no error has been clearly shown by the appellant, the order appealed from is hereby affirmed.

Affirmed.


author: MOORE, Judge.

text:
    Richard M. SCHUBOT, Appellant, v. Bobbe L. SCHUBOT, Appellee.
    No. 77-72.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Rehearing Denied Nov. 27, 1978.
    Jerry B. Smith, Fort Lauderdale, for appellant.
    James H. Walden of Walden & Walden, Dania, and Robert B. Haas of Burke, Haber & Berick, Cleveland, Ohio, for appellee.
   MOORE, Judge.

This is an appeal from a final judgment of dissolution of marriage. We have considered all points on the appeal and cross-appeal and with the exception indicated below find them to be without merit.

As part of the final judgment the trial court concluded that the parties should own two pieces of real estate as tenants in common. With respect to the marital domicile we find no error; however, the same is not true with respect to that certain California real estate of which the husband was the sole, beneficial owner. At the time of this appeal said property had been sold. In his final judgment, the trial court stated:

“4. That the husband and wife shall own the real property located in Portola Valley, California as tenants in common. Husband is to have exclusive use and possession for one year from the date of this order. After the one year period this Court will, upon proper Petition, enter a formal order of partition and sale pursuant to statute.”

Upon reviewing the transcript it appears that the trial court, sua sponte, determined that California’s community property law was applicable to the disposition of the property located in California. In doing so the court stated:

“Well, unless I hear something to the contrary, I am treating both properties as owned jointly by the parties by the entir-eties, under the operation of the law of California as to the' parties, within the State of California, as to that parcel of property. That being so, gentlemen, the division thereof is impractical and impossible, and there is no legal basis for it except by partition.”

Although the source of funds for acquisition of this California property was disputed, no finding was made by the trial court as to whose funds were actually utilized in obtaining the property.

While Florida courts are required to take judicial notice of the common law and statutes of all sister states, such judicial notice can only be taken after one party has raised the issue of foreign law through the pleadings, thereby providing the other party with reasonable notice. Movielab, Inc. v. Davis, 217 So.2d 890 (Fla. 3d DCA 1969). This was not done in the instant case and, therefore, the trial court’s reliance on California’s community property law was improper. See also, Lanigan v. Lanigan, 78 So.2d 92 (Fla.1955). The law of the foreign state cannot be the basis for a trial court’s ruling unless such law has been raised through the pleadings.

The mere fact that the real property is located in California does not necessarily mean that its disposition will be controlled by principles of community property. For example, it has been held that when the separate property of a nonresident husband or wife was invested in California real estate, the real estate remained the separate property of the spouse who purchased it. Tomaier v. Tomaier, 23 Cal.2d 754, 146 P.2d 905 (1944); In Re Marriage of Mix, 14 Cal.3d 604, 122 Cal.Rptr. 79, 536 P.2d 479 (1975). Had California law been raised in the pleadings in the instant case, the parties would then have been prepared to address such issue. The sua sponte application of California law by the trial court denied the parties this opportunity as they had no reason to foresee that it would be relevant.

The appellee, wife, suggests that the disposition of the California property is proper under Florida law as part of the award of lump sum alimony. It is quite clear from the final judgment and the transcript that the disposition of the California property was not intended as lump sum alimony. The final judgment provided for $1,683,-000.00 as lump sum alimony and an award to the wife of an interest in the California property was totally distinct from the monetary award, and it is apparent that the award of an interest in such property was based solely on the trial court’s erroneous application of California law.

That portion of the final judgment which awards to the appellee an interest in the appellant’s California real property is reversed. In all other respects the final judgment is affirmed.

AFFIRMED in part; REVERSED in part.

CROSS, J., concurs.

DAUKSCH, J., concurs in conclusion only.


author: DAUKSCH, Judge.

text:
    Barbara K. CLARKE, Appellant, v. Richard J. SANDERS, Appellee.
    No. 77-1585.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1978.
    Rehearing Denied Nov. 20, 1978.
    Hugh M. Davenport of Smith, Davenport, Peek & Bloom, Jacksonville, for appellant.
    Michael P. Falkowski of Parker, Conrad, Falkowski, Johnson & Owen, Orlando, for appellee.
   DAUKSCH, Judge.

In this malpractice case the trial court erred in refusing to allow in evidence at trial the depositions of two doctors whose testimony was quite relevant to the issue of malpractice. The reason the trial court gave for disallowing the introduction of the depositions into evidence was the plaintiff’s failure to list the names of the doctors on a pretrial statement. We find error because there was no pretrial order requiring the parties to list witnesses on a pretrial statement and even if there was an order, the failure to list their names was not so prejudicial to the defendant so as to require such a strong sanction as disallowing the presentation of the evidence. The defendant was quite aware of the proposed evidence and the doctors’ testimony because their names were furnished on answers to interrogatories; the defendant took the depositions of the doctors; the plaintiff had listed the bills of the doctors as being items to be introduced in evidence at trial; after the mistrial the defendant was again furnished the names of the doctors in answers to interrogatories; and the defendant made specific references to these doctors and their testimony by deposition during his opening statements to the jury at trial.

The trial court has broad discretion in these matters. County of Brevard v. Interstate Engineering Company, 224 So.2d 786 (Fla. 4th DCA 1969). The aggrieved party must show he was prejudiced by the court's abuse of discretion. County of Brevard v. Interstate Engineering Company, supra. Here the plaintiff was prejudiced because the two excluded depositions were of two doctors who gave testimony that the accused doctor had committed the malpractice. It is common knowledge it is difficult to obtain expert testimony in professional malpractice cases and it is obvious malpractice can hardly be proved without such evidence, so to exclude it could often ring the death knell for the plaintiff’s case. We are aware the plaintiff presented three other expert witnesses but the evidence offered by these two was not merely cumulative.

The plaintiff also appeals the judgment and the order denying the requested new trial saying the evidence was insufficient to support the verdict. Because we reverse on other grounds we need not get to that.

REVERSED and REMANDED for new trial.

BERANEK, J., and GREEN, OLIVER L., Associate Judge, concur.

      . There was a pretrial order for the first trial which was a mistrial but not for this re-trial.


author: BOOTH, Judge.

text:
    William R. BENDER, Appellant, v. Annette Harlene Vance BENDER, Appellee.
    No. II-184.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1978.
    A. G. Condon, Jr., of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appellant.
    James M. Barton, II, and David H. Levin of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appel-lee.
   BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court, Escambia County, dissolving the bonds of matrimony of the parties and awarding appellee, the former wife, custody of the two minor children of the parties, alimony and child support. Appellant contends that the award of alimony and child support is excessive in amount and that the trial court erred in awarding permanent alimony.

On consideration of the record, briefs and argument of counsel, we find that the trial court did not err in the award of $2,500 per month permanent alimony to appellee, and $400 per child per month in child support. The basis for the award is stated in the trial court’s “Letter of Decision,” in pertinent part as follows:

“This case requires alimony from the husband to the wife. The question is, should it be permanent or rehabilitative, and in either case, how much?
The vast majority of dissolution cases before this court neither require alimony nor seek it. The next largest number of cases seek alimony. However, there is not enough money to meet the actual needs of the recipient in these cases. Thus, the court must compromise between the needs of the recipient and the ability of the responding party to meet those needs. The necessary compromise leaves no one satisfied with the award, least of all the court.
Fortunately, in this case, the petitioner husband is more than able to respond to the needs of the wife and two infant children without causing hardship to him. Whatever the final award should be, the petitioner husband will be able to meet his personal and professional needs with a goodly sum left over for him with which to build his estate.
While this marriage was contracted only a short time ago, just six years on May 29, the consequences of the union will last considerably longer. The youngest child was only two and a half years old when the suit was filed in January of this year. The parents will have the legal responsibility for his welfare for at least fifteen and a half years in the future, barring some untoward event.
At a time when the petitioner husband earned considerably less than he does now, he decided, and his wife concurred, that she would remain in the home and be a full time housewife, with all that that implies. When the children were born she was a full time mother. The family could afford such a decision.
It is true, as the court recollects, the respondent wife did work as a ‘Kelly Girl’ for about a year prior to her marriage to the petitioner. Before that, she was trained as an actress, appearing in one ‘Dragnet’ series or episode from which she enjoyed some residual payments of $145.00 over the past ten years or so. The job market for long unemployed actresses in West Florida is not good. Certainly, Mrs. Bender could not be expected to move her residence on the off chance she could someday be reemployed as an actress somewhere else if she recaptured her long abandoned acting ability. In any event, there is no testimony to support the petitioner’s theory that she could be reemployed as an actress anywhere. The miniscule ‘residuals’ that she received suggests to the court the doctrine, “dfe minimus non curat /ex’.
Can Mrs. Bender return to being a secretary? Or, the question is, should she? It was decided early in the marriage that Mrs. Bender should abandon her skills as a secretary, whatever they were, for there is no testimony of her level of skill, and learn a new job, that of being a full time housewife and mother when the time came. The plan apparently worked well, satisfying both parties until the petitioner filed his suit to dissolve the marriage. A suit to end the marriage doesn’t automatically end the responsibilities each has to the other and the offspring of the union.
The essential plan of the parties concerning their children should continue regardless of their marital status, if such is possible. It was decided by both parties, in better times, that the wife should be a full time mother; the husband has the means to see that objective fulfilled. So it shall be.
By the time the youngest child reaches an age at which the respondent wife might attempt to return to the job market, be it secretarial or as an actress, she will be close to fifty years old, a time in one’s life when it is difficult to enter any job market. The people she would be competing with would have had that additional time and work experience to acquire skills while hers lay dormant. It is too much to expect her to be a full time mother and at the same time keep her secretarial and acting skills, whatever they may be, competitive with others.
To do ‘equity and justice between the parties’ the court will order that alimony be awarded to the respondent wife and that it be permanent in nature.
How much should the alimony be? Based on the petitioner’s income statement from the C.P.A. firm who handled his accounts, Respondent’s Exhibit No. 1, the petitioner’s gross earnings from salary, car allowance, director’s fees and dividends was $124,176.00 in 1976. A little more than a $9,000.00 raise from the previous year. In addition, for 1976 the sum of $25,-738.00 was set aside for him in a profit sharing and pension plan. The petitioner also owned a share of his professional association’s retained earnings of $64,-912.00.
Alimony is taxed to the recipient and deductible from the tax return of the ‘payor’. The court knows full well that the tax expert testimony during the respondent’s case could not be exactly accurate, but it was admitted as aid to the court in determining the amount of alimony should that be the court’s decision. It is now apparent that such evidence will be helpful to the court in its efforts to balance the equities of how much is needed and how much can be paid.
The wife’s financial affidavit says she needs $2,310.00 per month, the husband’s shows a need for $2,769.00 per month. According to Mr. Riggs’ testimony, in order for the respondent wife to have that much income after taxes, she would have to receive $3,500.00 in monthly alimony. Allowing for some inaccuracies in her needs as expressed in her affidavit and testimony and allowing for a portion of the children’s needs necessarily covered in her evidence of $2,310.00 needs, the court will order monthly alimony in the amount of $2,500.00 as permanent alimony to the respondent wife, along with $400.00 per child per month until each child reaches his majority, marries, dies or becomes self-supporting.
The court wants to remind counsel, and to advise them that the court is aware of the rule that a major change in circumstances of either party may subject the award of alimony and child support to modification as the circumstances warrant.”

Accordingly, the judgment below is affirmed and motion for attorneys’ fees is GRANTED, the amount to be determined by the trial court in accordance with Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

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


text:
    GULF LIFE INSURANCE COMPANY and Fidelity and Casualty Company of New York, Appellants, v. Gay Evans McCABE, Appellee.
    No. II-437.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1978.

      James M. McLean of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellants.
    Henry M. Searcy of Searcy, Smith, Fac-ciolo & Kirby, P. A., Jacksonville, for appel-lee.
   PER CURIAM.

This is an appeal from a final judgment, rendered after a jury trial, finding Gulf Life Insurance Company liable for compensatory damages in the amount of $150,-000.00. The appellants argue that the trial court should have granted appellants’ motion for a new trial on the basis that the verdict was excessive and against the manifest weight of the evidence. Appellee argues that the verdict in this case does not approach the maximum limit of reasonable range within which a jury may operate. We agree with appellee and affirm.

On September 24, 1976, Gay Evans McCabe was violently attacked by an unknown assailant while in the parking garage of Gulf Life Towers, a building owned by Gulf Life Insurance Company. The attack lasted three or four minutes and consisted of a constant struggle and attempts by the attacker to strangle the appellee. The attack culminated in a blow to the right side of her face. Appellee sustained a complete fracture of her cheekbone, which required surgery. She also sustained two fractures of her lower jaw. A second surgical procedure was necessary to obtain mobility in her jaw. This surgery was performed in February of 1977. Prior to surgery she could only open her mouth about 18 millimeters. She also suffered an injury to her eye; two teeth were chipped; and one porcelain crown was replaced. Appel-lee testified that she was in severe pain following the attack and has had continuing neck pain. She sustained permanent sensory nerve injury causing numbness in her face. Her mouth, when open, will deviate to the injured side for the rest of her life. She will need constant adjustment of her teeth due to this deviation. She must also use a tongue blade to stretch her mouth open once a week for the rest of her life. Appellee testified that after the attack she had nightmares every night. By July 1977, the dreams did not occur nightly, but were still occurring. This condition existed up to the time of the trial. She testified that she had enjoyed tennis, piano, and reading, but could not now enjoy these activities since she no longer has the concentration and the ability to relax that she needs to perform these activities. She visited a psychiatrist for thesé problems. Her medical bills had totaled about $6,900.00 by the time of the trial. There was an indication that further surgery would be necessary in about 20 years to replace a plastic implant which was inserted in February of 1977. Her life expectancy was determined to be 37.7 years.

In the trial court’s order denying the motion for new trial the judge stated:

“The court is of the view that the verdict is grossly excessive, and that the plaintiff should be required to remit a substantial amount or suffer a new trial on the matter of damages. However, the court is unaware of any standard by which the excessiveness can be measured with a degree of exactness and the court cannot point to any specific matters indicating that the jury was influenced by prejudice, passion or improper motive. Consequently, the court is of the opinion that it is without authority to interfere with the jury’s discretion. Bould v. Touchette (Fla.), 349 So.2d 1181.”

We believe the trial court was correct in denying the motion for new trial. Although the trial judge was of the opinion that a remittitur should be required, he was correct in implying that the amount of the excess must clearly appear from the record. This rule was stated in Wackenhut Corporation v. Canty, 359 So.2d 430 at 434 (Fla.1978). Therefore, the trial judge was correct in interpreting Bould, if not Wacken-hut, to mean the excessiveness must be measured with a degree of exactness. Wackenhut also requires that, although a trial judge has broad discretion to determine whether a new trial is warranted, this discretion may be exercised only where the order for new trial contains reference to the record in support of its conclusion that the verdict is improper or there must be an independent determination by the trial judge that the jury was influenced by considerations outside the record. Wackenhut, 359 So.2d at 435. The trial court, in its order, admitted that it could not point to any specific matters indicating that the jury was improperly influenced, or that the verdict was excessive. The trial court was correct in following the dictate of Bould v. Touchette, 349 So.2d 1181 at 1184-1185 (Fla.1977), where the court states:

“In tort cases damages are to be measured by the jury’s discretion. The court should never declare a verdict excessive merely because it is above the amount which the court itself considers the jury should have allowed. The verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.”

Therefore, considering the evidence of appellee's damages as stated above, especially the continuing emotional damage, as well as continuing pain, we hold that an award of $150,000.00 does not obviously exceed the maximum limit of a reasonable range which the jury could properly operate. Accordingly, the judgment below is AFFIRMED.

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


text:
    HOSPITAL CORPORATION OF AMERICA, d/b/a University Community Hospital, Petitioner, v. Jo Ann LAWYER and Claude Lawyer, and Doctor Crile Doscher and Doctor Cora Sue Golden, Respondents.
    No. 78-988.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.
    Rehearing Denied Nov. 22, 1978.
    Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for petitioner.
    Arthur N. Cohen of Cohen & Kokus, Miami, for plaintiffs/respondents.
    Watson, Hubert & Davis, Fort Lauder-dale, for defendants/respondents.
   MOORE, Judge.

This is a petition for writ of common law certiorari seeking review of the final decision of a medical mediation panel which was formed and conducted its proceedings pursuant to Section 768.44, Florida Statutes. We issued our rule to show cause to which the respondents filed a response. After numerous other pleadings the matter is now before us for final decision.

In Ans v. Pagnotti, 362 So.2d 459 (Fla. 4th DCA 1978) this Court adopted the reasoning contained in Hubacher v. Landry, 360 So.2d 42 (Fla. 3d DCA 1978) and dismissed a similar petition for writ of certio-rari which sought review on evidentiary grounds of the decision of a medical mediation panel. On the basis of Ans, supra, and Hubacher, supra, we determine that petitioner has failed to demonstrate jurisdiction in this Court for review by common law certiorari of a decision of a medical mediation panel.

We therefore dismiss the petition for writ of certiorari.

ANSTEAD and LETTS, JJ., concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Lillian G. DOUGLAS and Wallace H. Douglas, her husband, Appellants, v. The WINKLEY COMPANY, Appellee.
    No. 77-1466.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.
    Don L. Lacy, Fort Lauderdale, for appellants.
    Eric A. Peterson, of Carey, Dwyer, Cole, Selwood &' Bernard, P. A., Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED.

BERANEK, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

This is a summary judgment case. In the complaint it was alleged:

9. WINKLEY did so negligently design and/or manufacture and/or construct and/or select said short leg brace and did breach its warranties by failing to furnish LILLIAN with a leg brace which was merchantable or suitable for her purposes and, as a direct and proximate result thereof when the brace was being used by LILLIAN for the purpose for which it was sold on or about November 12, 1972, the calf band failed to hold due to a fastener which broke, and said leg brace failed to support LILLIAN as described above.

In the answer the defendant The Winkley Company said, inter alia:

The defendants further affirmatively alleged that at all times material hereto, the product as described in plaintiffs’ complaint, was misused, altered, changed, damaged, tampered with and/or was otherwise in a different condition when manufactured and sold by the defendants herein and therefore, the plaintiffs are precluded from recovery against the defendants herein.

At the hearing upon the Motion for Summary Judgment and upon appeal the defendant, The Winkley Company, maintains it cannot, as a matter of law, be found guilty of negligence because even though it manufactured the leg brace and furnished it to the plaintiff it was not responsible for any injuries the plaintiff suffered because the fastener which broke, thereby causing the calf band to fail, was not original equipment but was a replacement put on by someone else.

It is well settled the movant to support a summary judgment must negate' all inferences of legal theories under which the non-movant might proceed and even the slightest doubt must be given to the non-movant.

The paragraph in the Complaint which is set out above is capable of being interpreted at least two ways. I choose to interpret it in a way to give the benefit of the doubt to the plaintiff, the non-movant.

When that paragraph is given the defendant’s interpretation the specific pleading says, essentially, that the brace failed because the calf band failed because the fastener broke and since the fastener was replaced by someone other than The Wink-ley Company (as was shown in discovery) that intervening cause relieved The Wink-ley Company from liability. I agree that if the interpretation is such that the breaking of a defective fastener caused the injury and The Winkley Co. was not responsible for the placement of the fastener then the summary judgment was correct.

But if that paragraph is given the plaintiff’s interpretation then it says, essentially, The Winkley Company negligently designed and constructed the leg brace in such a manner that the brace failed because the band failed to hold when the fastener broke and, inferentially, if the design and construction had been proper the fastener might not have broken, or if it did, the band might have a safety to prevent its failure and therefore prevent the brace failure. Of course, assuming this is a logical interpretation of this not so well pleaded allegation, further facts might entitle defendant to a summary judgment or a jury might find for the defendant. But upon the facts and pleadings now before us I cannot say the court should have granted a summary judgment.

I would reverse.


text:
    Joseph FOX and Florence Fox, his wife, Petitioners, v. E. B. M. EDWARDS, D. O., Leroy Benoay, D. O., James J. Costello, D. 0., and Doctors Hospital, Inc. d/b/a Doctors General Hospital, Respondents (two cases).
    Nos. 78-1514, 78-1515.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1978.
    Robyn Greene of Greene & Cooper and Stanley M. Rosenblatt, P. A., Miami, for petitioners.
    Bruce S. Schwartz of Schwartz, Klein & Steinhardt, North Miami Beach, for respondents — E. B. M. Edwards, D. 0. and Leroy Benoay, D. 0.

      Edna L. Caruso, West Palm Beach, and William deF. Thompson, Fort Lauderdale, for respondent — Doctors Hospital.
    Raymond J. Dwyer of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for respondent — James J. Costello.
   PER CURIAM.

Having considered the petitions for writ of certiorari in these consolidated cases and the responses thereto, the petitions for writ of certiorari are DENIED.

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


author: MeCORD, Chief Judge.

text:
    BILTMORE CONSTRUCTION COMPANY, Petitioner, v. FLORIDA DEPARTMENT OF GENERAL SERVICES, Respondent.
    No. EE-437.
    District Court of Appeal of Florida, First District.
    Nov. 1, 1978.

      Edgar M. Moore of Smith & Moore, Tallahassee, and Dennis P. Thompson of Richards, Nodine, Gilkey, Fite, Meyer & Thompson, Clearwater, for petitioner.
    John A. Barley, Tallahassee, for respondent.
   MeCORD, Chief Judge.

Petitioner, Biltmore Construction Company, seeks review of an order of respondent, Department of General Services, which requires petitioner to specifically perform a contract entered into between petitioner and the predecessor of respondent for the construction of nine cottages in Gilchrist County. The administrative proceeding began with a claim of petitioner for $9,085.16 retained by respondent from the total contract price of $3,272,000. A hearing examiner was appointed to hear the claim, and the hearing began on October 8, 1974. The Administrative Procedure Act enacted by Chapter 74-310, Laws of Florida (now Chapter 120, Florida Statutes, 1977) is not applicable to this proceeding. § 120.-72(2)(a) of that statute provides as follows:

“All administrative adjudicative proceedings conducted pursuant to any provision of the Florida Statutes which were begun prior to January 1, 1975, shall be continued to a conclusion, including judicial review, under the provisions of the Florida Statutes, 1973, except that administrative adjudicatory proceedings which have not progressed to the stage of a hearing may, with the consent of all parties and the agency conducting the proceeding, be conducted in accordance with the provisions of this act as nearly as is feasible.” (Emphasis supplied.)

Thus, neither the administrative adjudicative proceedings nor review thereof provided in said act are applicable to this proceeding. Also, since the petition for review was filed in this Court prior to March 1, 1978, the Florida Rules of Appellate Procedure, which then became effective, are not applicable to this review. We, therefore, treat the petition for review as a petition for writ of certiorari under Fla.R.App.P. 4.5 c of the 1962 Appellate Rules.

The controversy between petitioner and respondent over petitioner’s construction of the aforesaid cottages related to roof leaks which caused considerable damage to the buildings. The construction contract of the parties provided that, with certain exceptions not applicable here, all disputes arising under the contract “shall be decided by the Architect, subject to written appeal within 30 days to the State Budget Commission, State of Florida, whose decision shall be final and conclusive upon the parties thereto as to such disputes.” The contract further provides:

“The determination of all such matters in the manner provided in this Article shall be a condition precedent to any right to legal action of either party against the other or any matter of dispute arising under this contract.”

At the conclusion of the hearing, the hearing examiner entered his recommended order in which he made findings of fact and conclusions of law. His detailed findings and conclusions are summed up as follows:

“Based upon a preponderance of the evidence, it would appear that:
a. Improper nails were suggested and used by the Contractor by and through its original subcontractor with notice to the Architect who did not officially respond and in any way object to the 1%” long barbed roofing nails. In fact, based upon the testimony of Mr. Huff, Mr. Batts and Mr. Harnley, supra, it would appear that the Architect did acquiesce to the 1A" long barbed roofing nail which is not the correct nail as called for in the manufacturer’s specifications.
b. The initial shingle? supplied by the Philip Carey Co. as well as the replacement shingles were of substandard quality as both were the subject of blistering.
c. The workmanship with respect to both original shingles and replacement shingles was improperly performed.
d. Work on roofs including the replacement of defective shingles was done by more than one roofing subcontractor. During the latter part of this problem, it becomes almost impossible from a reading of the record to determine who had the responsibility and was in charge of the supervision of the corrective roof work. Under normal circumstances, it would appear that the contractor would have primary supervisory control and the Architect would have ultimate control over the review process to determine whether substantial completion has been accomplished in accordance with the project specifications. Apparently, neither of these important entities properly and completely fulfilled their responsibilities in the instant case.
e. In short, we have the unfolding of a story where all of the major characters have to some extent contributed to a tragic conclusion — an inability to construct a facility for the State that won’t leak when it rains. This sad conclusion becomes even more tragic when confronted with a record which does not satisfactorily address itself to the question of why the retainage sum under the contract was reduced to something just over $9,000 when the various problems were nowhere near resolution. It is not clear whether the State, on its own initiative and review, instructed the Architect to reduce the retainage of monies held, or whether the State acted upon representatives of their Architect to authorize reduction of the amount of money held as retainage to insure proper completion of the project.”

The hearing examiner concluded his recommended order by recommending that the claim of petitioner for the retained sum of $9,085.16 be denied. Thereafter, the Governor and Cabinet, sitting as the Board heading the State of Florida, Department of General Services, entered its final order modifying the findings and conclusions of the hearing examiner as follows:

“Although it has been previously stated that the fault in this progression of errors cannot be laid to rest with any one particular participant, there is more than ample competent and substantial evidence in the record to support a finding that the Contractor was grossly deficient in his supervision and management of the initial workmanship and replacement workmanship of the roofs in question, which included the presence of a variety of improper nails used in the roofing process. The record is also supported by a preponderance of the evidence that the Contractor’s inability to meet his contractual obligations as a matter of law exceeds the amount of retainage which is the subject of the instant claim.”

The final order then ordered:

“Therefore, based upon the foregoing, it is Considered, Ordered and Adjudged that the Contractor, Biltmore Construction Company, Inc., be and the same is hereby directed to provide such labor, materials and supervisory services as are necessary to remedy the damaged conditions of the nine cottage roofs without further delay and without further cost to the State of Florida; and
It is further Considered, Ordered and Adjudged that upon the Project Architect, Watson and Company, certifying that said remedial work has been finally completed and that said roofs have been constructed in accordance with the requirements of the terms and conditions in the Contract Documents for the subject project, the State of Florida Department of General Services be and the same is hereby directed to then issue or cause to be issued final payment to the Contractor in the sum of $9,085.16, the amount presently held in retainage; and
It is further Considered, Ordered and Adjudged that the Contractor be and the same is hereby directed to make prompt payment to the department in the amount of $5,091.97 for the cost of these proceedings and the Department’s cost in defending against the Contractor’s appeal from the Architect’s determination.”

The final order departs from the essential requirements of law. It orders specific performance of contract which only a court in the exercise of its equitable powers may decree. See Chaney v. Brown, 158 Fla. 489, 29 So.2d 209 (1947), and H. Kooman, Florida Chancery Pleading and Practice § 374 (1939). While an administrative agency may exercise quasi-judicial power when authorized by statute, it may not exercise power which is basically and fundamentally judicial such as the grant of an equitable remedy. Such action violates Article II § 3 of the Florida Constitution which provides:

“Branches of Government. — The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”

See Canney v. Board of Pub. Instruction of Alachua Cty., 278 So.2d 260 (Fla.1973).

We have considered the following question which was raised by the Court on its own motion and upon which counsel for both parties filed additional briefs:

Whether or not the enforcement of the contract pursuant to the enforcement provisions thereof in conjunction with the Administrative Procedure Act (Chapter 120, Florida Statutes) is a denial of due process to appellant in that a party to the contract is the tribunal which adjudicates its own contract?

We find no violation of due process by a state agency affording a hearing to one with whom it has contracted upon such person’s claim under the contract. Compare S & E Contractors v. United States, 406 U.S. 1, 92 S.Ct. 1411, 31 L.Ed.2d 658 (1972).

Since this action is not governed by the 1974 Administrative Procedure Act and since there is no other applicable statute waiving immunity, petitioner is barred by the doctrine of sovereign immunity from bringing an action in court on the contract. See State ex rel. Florida Dry Cleaning and Laundry Board v. Atkinson, 136 Fla. 528, 188 So. 834 (1938); Hampton v. State Bd. of Education, 90 Fla. 88, 105 So. 323 (1925), and cases cited. Circuit Court, etc. v. Dept. of Nat. Resources, 339 So.2d 1113 (Fla. 1976), impliedly receding from Gay v. Southern Builders, Inc., 66 So.2d 499 (Fla. 1953); State ex rel. Div. of Admin, v. Oliff, 350 So.2d 484 (Fla. 1 DCA 1977). Petitioner must either accept the refusal of respondent to pay to it the retainage under the contract or seek the remedy of a claim bill in the legislature. There is, however, nothing to bar respondent from bringing an action in the appropriate trial court for damages or for specific performance of the contract, but we here make no ruling as to whether or not such relief should be granted.

Writ of certiorari is granted, and the final order of the State of Florida, Department of General Services, dated January 5, 1977, is quashed.

SMITH and MELVIN, JJ., concur.

      . Compare, however, Graham Contracting, Inc. v. Department of General Services, 363 So.2d 810 (Fla. 1 DCA 1978), Case Nos. KK-284 and KK-285, opinion filed October 31, 1978, in which this Court held that to the extent of the remedies provided under the 1974 Administrative Procedure Act, the legislature has waived sovereign immunity.


author: PER CURIAM. CROSS, Judge,

text:
    PLAZA SOUTH ASSOCIATION, INC., a Florida Corporation, not for profit, and Philip Johnson, et ux., et al., Individually, and as members and unit owners in, and purchasers of, apartments in Plaza South, on behalf of all such members, unit owners and purchasers, Appellants, v. PLAZA SOUTH CORP., a Florida Corporation, et al., Appellees.
    No. 76-2389.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.

      Harry G. Carratt of Morgan, Carratt & O’Connor, Ft. Lauderdale, for appellants.
    Edward R. Rumin of Adams & Adams, Fort Lauderdale, for appellees.
   PER CURIAM.

The trial court dismissed a third amended complaint when the complaint was sufficient to invoke the court’s jurisdiction to grant declaratory relief. Bell v. Associated Independents, Inc., 143 So.2d 904 (Fla. 2d DCA 1962). In doing so the court abused its discretion by not recognizing the standing which the appellant “Association” has to seek a declaration of its rights under certain assignments and the Declaration of Condominium.

The order dismissing the third amended complaint is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

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

CROSS, J., concurs specially, with opinion.

CROSS, Judge,

concurring specially:

I concur in the result reached in the instant case even though the complaint herein under review is unduly burdened with mis-joinder of parties and of causes of action. Basically, Plaza South Association, Inc. seeks a declaration of its rights under certain irrevocable assignments of additional parking spaces. This is a proper matter for declaratory relief under Section 86.021, Florida Statutes, and the cause is properly returned to the trial court for further proceedings.


author: LETTS, Judge.

text:
    David C. BRAGDON, Appellant, v. Rosemary W. BRAGDON, Appellee.
    No. 77-1412.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.

      William E. Weller of Rose & Weller, Cocoa Beach, for appellant.
    Joe Teague Caruso of Wolfe, Kirschenb-aum, Caruso & Mosley, P. A., Cocoa Beach, for appellee.
   LETTS, Judge.

In this case the final judgment required the husband to pay an estimated $420 per month (figured by percentage of income) in child support which sum amounts to 33% of his present net income. We affirm, although we find this award to be generous for one child. However, in view of the fact that the husband has not been ordered to make any other cash contributions to his wife or family, we cannot say that the trier of the fact abused his discretion in this regard.

Notwithstanding, we modify the final judgment in one respect and direct a breakdown of the $420 by a different method. The trial court after setting forth the $420 child support, then also said:

11. That the child support referred to in Paragraph 10 above shall consist in part of xh of the monthly mortgage payment which shall be credited to the Respondent, DAVID C. BRAG-DON as his contribution towards maintaining the residence for the minor child.

We think this quoted paragraph # 11 was inequitable and that the husband should have simply been directed to pay one-half of the mortgage payments on the house (in which he is a tenant in common) without labeling it child support. To offset this realignment, the contemplated $420 provided for in paragraph 10 of the final judgment is hereby reduced by the amount of the husband’s payment toward the mortgage.

It is not equitable to label all of this mortgage payment “child support,” because the contribution also helps provide a roof over the wife’s head and the end result must in part be a contribution towards her support.

All other points on appeal or cross-appeal are found to be without merit.

AFFIRMED AS MODIFIED.

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


author: DOWNEY, Chief Judge.

text:
    Pamela WHITAKER, Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 77-1938.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.

      Eric A. Lanigan of Maher & Overchuck, P.A., Orlando, for appellant.
    Wallace W. Tudhope of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P.A., Orlando, for appellee.
   DOWNEY, Chief Judge.

Appellant, Pamela Whitaker, seeks review of a summary final judgment for ap-pellee determining that appellant was not entitled to insurance coverage.

Pamela owned a 1973 Porsche which was uninsured. At a time when she resided with her sister, Frances Collins, Pamela was injured in an accident while driving Frances’ automobile. Frances had a policy of automobile insurance with appellee, Allstate Insurance Company, which contained the standard provision insuring not only the named insured, Frances Collins, but also a relative of the owner residing in the same household. Thus, Pamela claimed coverage under the policy, but Allstate rejected the claim and this suit ensued.

There was no genuine issue of material fact remaining in this case and the trial court was correct in entering summary judgment. The very provision of the Florida Automobile Reparations Reform Act, 627.736(4)(d)(3) (1977), providing for coverage for relatives of the named insured residing in the same household contains an unambiguous proviso:

“. . . provided the relative at the time of the accident is domiciled in the owner’s household and is not himself the owner of a motor vehicle with respect to which security is required under §§ 627.-730-627.741.”

This very same exclusion was set forth in the insurance policy of appellant’s sister. There is no question here that Pamela had a motor vehicle with respect to which security was required under Sections 627.730-627.-741, Florida Statutes (1977).

The thrust of appellant’s argument on appeal is that, as a result of ambiguities contained in the policy, appellant is a “named insured” and thus entitled to coverage. We have considered this contention and find it to be without merit.

Thus, we affirm the judgment appealed from.

AFFIRMED.

ANSTEAD and LETTS, JJ., concur.


author: CROSS, Judge.

text:
    CIVIL SERVICE BOARD, CITY OF FORT LAUDERDALE, Petitioner, v. Joseph C. CARTER, Respondent.
    No. 77-2260.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.
    Sydney H. McKenzie, III, City Atty. of City of Fort Lauderdale, and Bryson K. Lovejoy, Asst. City Atty., Fort Lauderdale, for petitioner.
    J. Leonard Fleet, of Fleet & Packar, Hollywood, for respondent.
   CROSS, Judge.

The Civil Service Board for the City of Fort Lauderdale seeks through petition for writ of certiorari review of an order of the circuit court entered in its appellate capacity reversing an order of the Board which upheld the actions of the city manager in refusing to allow Joseph C. Carter to retract a letter of resignation. We issue the writ and quash the order.

On December 20, 1976, Joseph C. Carter submitted a letter of resignation to the City Manager for the City of Fort Lauderdale. This letter was endorsed as being accepted by the City Manager and made effective January 30,1977. On January 13,1977, Mr. Carter submitted a letter purporting to rescind his resignation. The City Manager responded by letter dated January 20, 1977 that Mr. Carter’s letter of resignation had been accepted on December 20th, and that it was the City Manager’s established policy not to allow retraction of letters of resignation.

Mr. Carter then appealed to the Civil Service Board, which in due course upheld the actions of the City Manager on the ground that it had a generally adopted policy of sustaining the City Manager in like situations. Mr. Carter petitioned the circuit court for a writ of certiorari to review the decision of the Civil Service Board. After reviewing the record, briefs of the parties and hearing oral argument, the court entered its order reversing the decision of the Civil Service Board, and ordering the reinstatement of Mr. Carter with full reimbursement - for wages and benefits lost. The Civil Service Board then filed the instant petition for writ of certiorari seeking review of the order of the circuit court.

Our review of appellate proceedings initiated before a circuit court is limited to a determination of whether the court either lacked jurisdiction over the cause, or whether the judgment conforms to the essential requirements of the law.

We are unaware of any prior Florida cases discussing the efficacy of a notice of withdrawal of resignation by a municipal employee after acceptance by his superior. However, in a similar context, a written notice of resignation subscribed by an employee has been characterized as an offer to dissolve the existing contract of employment. Hart v. School Board of Wakulla County, 340 So.2d 121 (Fla. 1st DCA 1976). Such an offer may be withdrawn, as may most offers in other contractual contexts, at any time prior to acceptance. However, once such offer is accepted by the appropriate supervisor or supervisory board, a binding agreement is formed and absent a mutual accord modifying or cancelling such agreement, the resignation may not be withdrawn by unilateral action. Motley v. Board of Public Instruction of Okaloosa County, 190 So.2d 815 (Fla. 1st DCA 1966), reh. den.

Cases regarding the effect of a notice of resignation given by a private employee, even though employed by a municipality, must be distinguished from those involving the effect of such resignation-in the case of a constitutional officer. For example, In re Advisory Opinion to the Governor, 117 Fla. 773, 158 So. 441 (1934), the Florida Supreme Court expressed the view that an elected county officer who had transmitted his written resignation for‘acceptance by the governor could rescind duch resignation by written withdrawal at any time before the effective date of the resignation. Accord, Tappy v. State, 82 So.2d 161 (Fla.1955). These cases stand for the proposition that a constitutional office does: not become “vacant” until the effective date of the resignation. This rule has no application in the case of a municipal employee. We determine that the proper rule is that a notice of resignation may not be withdrawn once it has been accepted by the person or board which has the authority to oversee the hiring and termination of such employees, absent a mutual agreement to the contrary.

In the instant case, the record affirmatively shows that Mr. Carter’s resignation was delivered to the City Manager, who had the authority to oversee appellee’s employment and to fill vacancies as they occurred. The record also conclusively shows that such resignation was accepted by the city manager to be effective at a later date. Thus, it appears that the circuit court’s reliance on a line of cases involving constitutional officers was misplaced, and therefore the circuit court’s order failed to comply with the essential requirements of the law when it reversed the decision of the Civil Service Board.

Accordingly, we grant the writ of certio-rari and quash the order of the circuit court, and remand for the entry of an order consistent with the views herein expressed.

Certiorari granted and remanded with directions.

ANSTEAD and DAUKSCH, JJ., concur.


text:
    The SCHOOL BOARD OF BROWARD COUNTY, Appellant, v. Jaydeane CONSTANT, a minor, and her next friends, Joan Constant and Roy Constant, and all others similarly situated, Kathleen Wright, David L. and Geraldine Gramith, Constance Kraft, etc., et al., Appellees.
    No. 77-2377.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.

      Edward J. Marko of Marko, Stephany & Lyons, Fort Lauderdale, for appellant.
    James R. Holmes of Zamer & Holmes, Pompano Beach, Donald R. Hall of Gustaf-son, Stephens, Ferris & Forman, P.A., and Joseph J. Titone of Olds & Titone, Fort Lauderdale, for appellees.
   DOWNEY, Chief Judge.

The appellant, The School Board of Bro-ward County, files this interlocutory appeal to review an order of the Circuit Court denying its Motion to Dismiss appellees’ complaint for declaratory relief and injunction.

It appears that the School Board held several hearings after which it established boundary lines for various schools in the county which in turn determined the school which children living in the respective areas must attend. Appellees, being aggrieved by the school boundaries fixed by the School Board, filed three separate complaints in the Circuit Court which were consolidated. The thrust of appellant’s motion to dismiss was that appellees’ sole remedy to review the subject action of the School Board was by certiorari in the District Court of Appeal, pursuant to the Administrative Procedure Act. The trial court disagreed and this appeal ensued.

Appellant contends that the School Board’s action in establishing the boundaries under attack is “agency action” within the purview of Section 120.52(2), Florida Statutes (1976). Appellees argue that the decision of the School Board under consideration is not agency action governed by the Administrative Procedure Act because the decision of the School Board is not a quasi judicial decision. Thus, appellees contend that they are not precluded by the Administrative Procedure Act from resorting to the Circuit Court to have the School Board decision overturned by petition for declaratory decree and injunction. In addition, the ap-pellees suggest that, even if the Administrative Procedure Act were otherwise applicable to this decision of the School Board, appellees are not “parties” to that decision as defined in Section 120.52(10) Florida Statutes (1976), and, thus, they would have no standing to pursue review pursuant to Section 120.68, Florida Statutes (1976).

Our consideration of the briefs of the parties and the various cases touching upon the subject convinces us that appellant is correct; this decision of the School Board is reviewable only by the District Court of Appeal.

The main thrust of appellees’ argument is that in order to obtain judicial review of an order or rule of a School Board the action involved must have been in the nature of a quasi judicial decision as opposed to a quasi executive or quasi legislative action. This dichotomy existed without question for some time in Florida and is explicated in detail in some of the exhaustive opinions of the First District Court of Appeal. However, our study of those cases and others, together with the Reporter’s Comments on Proposed Administrative Procedure Act for The State of Florida, March 9, 1974, found in the Library of the Florida Supreme Court and in the Archives of the Law Revision Commission convinces us that the occasion for resort to the Circuit Court for review of agency action is far more limited now than it was prior to the 1974 Revision of the Administrative Procedure Act. As the court stated in Willis, supra:

“The Act’s impressive arsenal of varied and abundant remedies for administrative error requires judicial freshening of the doctrines of primary jurisdiction and exhaustion of remedies, and greater judicial deference to the legislative scheme. It is not that the power of circuit courts has been lessened, nor that their historic writs have been surrendered. Rather, the occasions for their intervention have lessened.” Willis, 344 So.2d at 590.

The court then generally described the type of agency decision which remained subject to Circuit Court collateral review by stating:

“We recognize, of course, that some agency errors may be so egregious or devastating that the promised administrative remedy is too little or too late. In that case equitable power of a circuit court must intervene. 3 K. Davis, Administrative Law Treatise 69 (1958).” Willis, 344 So.3d at 590.

Willis, supra, was followed by The School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977), which again recognized the departure from the old characterization of quasi judicial, executive and legislative as decisional factors determining where jurisdiction lies to review ordinary agency action.

We feel the decision of the School Board in this case is not so egregious or devastating that the administrative remedies afforded by the Administrative Procedure Act will be inadequate to afford warranted relief. Therefore, we hold that the appropriate avenue of review is in the District Court of Appeal.

Finally, we reject appellees’ contention that they are not parties within the meaning of Section 120.52(10). On the contrary appellees fit the description of any person who, as a matter of agency regulation, have substantial interests which will be affected by the proposed agency action. Such a person is a party within the meaning of the Act. Thus, appellees are entitled to be heard but via the Administrative Procedure Act and not by resort to collateral action in the Circuit Court.

Accordingly, the order appealed from is reversed and remanded to the Circuit Court with directions to grant appellant’s motion to dismiss.

REVERSED AND REMANDED with directions.

ANSTEAD and LETTS, JJ., concur.

      . Witgenstein v. The School Board of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977); The School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977); State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); accord Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. 3rd DCA 1977).

      . See particularly the Reporter’s comment quoted in School Board of Leon County v. Mitchell, 346 So.2d 562, 566 (Fla. 1st DCA 1977).

      . We are cognizant that the Mitchell opinion also recognized that the decision reviewed in Mitchell could be characterized as quasi judicial even under the prior decisions which based jurisdiction upon those characterizations.


text:
    Barry ST. JOHN, Appellant, v. STATE of Florida, Appellee.
    No. 77-2486.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.
    Rehearing Denied Nov. 22, 1978.
    Franklin T. Walden of Brock, Massey, Walden & Eaton, Altamonte Springs, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Robert L. Bogen and Kenneth G. Spillias, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellant was charged with possession of a controlled substance in violation of Section 893.13(1)(e), Florida Statutes (1975). Appellant’s motion to suppress evidence was denied and he pleaded nolo contendere, reserving the right to appeal the denial of the motion to suppress.

The evidence at the suppression hearing showed Officers Bell and Wells were in an unmarked police unit when Bell saw appellant drive by in a 1969 orange Camaro. The vehicle reminded him of a Bolo received an hour or two earlier to look out for an orange Camaro or Firebird, approximately 1968 model, containing a white male. Bell immediately requested a rereading of the Bolo and a license number. The requested information was not immediately forthcoming so Bell requested Officer Poff, who was driving a marked cruiser, to stop appellant. After stopping appellant, the unmarked unit containing Officers Bell and Wells arrived at the scene and'Officer Poff departed.

Both appellant and the officers, exited their cars and Bell identified himself as a police officer and asked appellant for his driver’s license. At that time Bell smelled the odor of marijuana about appellant’s person and asked appellant if he had been smoking marijuana. Appellant admitted he had and told Bell he had a nickel bag left in the car. At Bell’s request appellant procured the nickel bag. Bell then asked appellant if he could search the vehicle, but before doing so Bell advised appellant he did not have to consent to a search of the vehicle and that anything found therein could be used against him. Appellant consented to the search which resulted in locating more marijuana, whereupon Bell then arrested appellant. Following the arrest appellant admitted the marijuana was his.

Bell testified that when he stopped appellant he did so pursuant to the Bolo. ■ After appellant consented to the search, Bell radioed Officer Poff to see if he had any “consent to search” forms. Poff corroborated this.

Appellant contends the trial court committed reversible error in failing to suppress the evidence obtained as a result of the search of appellant’s car because the original stopping of appellant’s car by the police was improper. While we agree the initial stop and detention of appellant was improper, we do not believe the trial court erred in denying suppression because it is clear on this record that appellant consented to the search.

With regard to the initial stopping of appellant’s car the proof adduced at the suppression hearing showed the police did not have the founded suspicion necessary to warrant stopping and detaining appellant pursuant to Section 901.151, Florida Statutes, (1975). The sole basis for the stop was the bolo received by the officers an hour or two earlier. In order for a bolo to justify such a stop there must be some showing by the state at a suppression hearing that the information contained in the bolo was reliable. If the police received the bolo information from some unknown tipster, it would not carry the credibility necessary to justify reliance thereon. This is the rule followed by the Second District Court of Appeal in State v. Hendry, 309 So.2d 61 (Fla.2nd DCA 1975), and Lewis v. State, 337 So.2d 1031 (Fla.2nd DCA 1976). We think that rule comports with constitutional safeguards. As the Supreme Court of the United States said in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972):

“Some tips, completely lacking in indi-cia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations — for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime — the subtleties of the hearsay rule should not thwart an appropriate police response.” Id. at 1924.

Thus, when confronted with a motion to suppress involving a stop based upon a police radio broadcast advising police to be on the lookout, the state having the burden of proof to show a warrantless search is reasonable must adduce proof to support the reliability of the information contained in the bolo or that there were other circumstances observed or otherwise known by the police which created the founded suspicion justifying the stop. The state relies upon several cases such as McRae v. State, 245 So.2d 133 (Fla.1st DCA 1971), and Kaymore v. State, 260 So.2d 851 (Fla.1st DCA 1972), to support the contention that the mere receipt of a bolo gives an officer the right to stop and detain an individual. A cursory reading of those cases would indicate that the question was never raised. Therefore, they can hardly be considered as authority for the state’s contention.

Even though the initial stop was not shown to be proper, we do not believe the evidence was obtained as a result of that illegal stop; rather the proof showed the evidence was obtained as a result of appellant’s consent to a search of his car. Officer Bell advised appellant that appellant was not obligated to allow a search of the car and that, if he did consent, anything found could be used against him. Regardless of this warning, Bell testified that appellant gave his consent. By way of corroboration Officer Poff, who had departed the scene, testified that Bell radioed him for “consent to search” forms but that he did not have any. Since the stop was improper in order to assure that any consent to search was truly voluntary, the proof must be clear that no coercion existed. State v. Othen, 300 So.2d 732 (Fla.2nd DCA 1974); State v. Spanierman, 267 So.2d 102 (Fla.2nd DCA 1972). See also Annot., 9 A.L.R.3d 858 (1966). From the proof adduced, we find the consent was voluntary.

For the foregoing reasons we affirm the judgment appealed from.

AFFIRMED.

ANSTEAD and DAUKSCH, JJ., concur.

      . Raffield v. State, 351 So.2d 945 (Fla.1977); State v. Hinton, 305 So.2d 804 (Fla.4th DCA 1975).


text:
    Terry L. BALLARD, Petitioner, v. Louie C. CURATOLO, Respondent.
    No. 77-2534.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1978.

      William B. Wilson of Maguire, Voorhis & Wells, Orlando, for petitioner.
    R. David Ayers of Troutman, Parrish & Weeks, Winter Park, for respondent.
   MOORE, Judge.

This petition for writ of certiorari to the circuit court in its capacity as judicial referee seeks our review of the referee’s order terminating jurisdiction of a medical mediation liability panel because no hearing had been held within 120 days from the commencement of mediation proceeding nor had an order extending time for commencement been entered. This is another case where the facts prompt us to express our agreement with Justice Adkins’ concern regarding the constitutionality of the Act as contained in his concurring opinion in Simmons v. Faust et al., 358 So.2d 1358 (Fla. 1978).

Medical mediation was instituted on May 2, 1977 by respondent’s filing requests for same with the clerk of the circuit court. On August 12, 1977, petitioner (one of the respondents below) filed a timely motion to extend time for hearing, same being set for hearing on September 7,1977. For reasons not reflected in the record the September hearing never occurred and on October 20, 1977 petitioner filed a supplemental motion to extend time for hearing. The two motions to extend time for hearing were heard on October 25,1977 resulting in the judicial referee’s decision of November 4,. 1977 terminating jurisdiction.

We find it unnecessary to determine whether or not the filing of a timely motion for extension of time within the initial 120 days from the date of commencement tolls the time during which a hearing must commence, because no hearing commenced within six months of the date the claim was filed. Section 768.44(3), Florida Statutes (1977). The failure to hold a hearing within six months of the date the claim is filed terminates jurisdiction of the medical mediation panel, and respondent is then entitled to pursue his cause of action in the circuit court. Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4th DCA 1978); Mellor et al. v. Arakgui et al., 359 So.2d 36 (Fla. 4th DCA 1978); Stanton, et al. v. Community Hospital of South Broward, et al., 359 So.2d 37 (Fla. 4th DCA 1978).

We recognize the hardship this decision seemingly creates on those innocent parties to medical mediation proceedings who are denied statutorily granted rights for reasons beyond their control. For example, a medical practitioner accused of malpractice may be on an extended vacation at the time a claim is filed. If that vacation extends beyond 120 days and the claimant is therefore unable to obtain service of process upon him, this decision would effectually terminate jurisdiction of the panel because a hearing had not been held within 120 days of the filing of the claim nor had an order been entered extending the time for hearing. We are also aware of the conflict this decision, and this Court’s previous decisions, creates with the decision of our sister court in Limond v. Llanio, 349 So.2d 214 (Fla. 3d DCA 1977). Nevertheless, we are constrained to follow our decision in Green, supra, wherein we held that because Chapter 768 is in derogation of the common law and an impediment to the constitutional guarantee of access to the courts strict compliance with the statutory provisions is required.

Rule 20.190, Fla.R.Med.P., admittedly not applicable here, provides for automatic termination of jurisdiction when no hearing has been commenced within six months from the date of the filing of the claim even though an extension order had been entered by the judicial referee. No exceptions are provided.

We find that the judicial referee was correct in terminating the jurisdiction of the medical mediation panel. Accordingly, certiorari is DENIED.

ANSTEAD and DAUKSCH, JJ., concur.


author: RYDER, Judge.

text:
    CEMENT PRODUCTS CORPORATION OF SARASOTA, INC., Petitioner, v. DIVISION OF ADMINISTRATION, State of Florida, DEPARTMENT OF TRANSPORTATION, Respondent.
    No. 78-100.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 1978.
    Granville H. Crabtree, Jr., of Crabtree, Butler, Syprett, & Meshad, P. A., Sarasota, for petitioner.
    Margaret-Ray Kemper, Jeffrey H. Sav-lov, Alan E. DeSerio and H. Reynolds Sampson, Tallahassee, for respondent.
   RYDER, Judge.

The respondent filed eminent domain proceedings pursuant to Chapters 73 and 74, Florida Statutes (1977) to condemn certain property situated in Manatee County, including a portion of the property owned by petitioner herein. An order of taking was signed by the trial court on October 27,1977 and recorded on November 9, 1977. On November 7, 1977 the petitioner filed a motion for rehearing of the order of taking. An order denying the motion for rehearing was rendered on December 20, 1977. Thereafter, on January 17, 1978 the petitioner filed this petition for writ of certio-rari seeking review of the order of taking and the denial of the motion for rehearing.

Upon review of the record and briefs filed herein, as well as the oral arguments of the parties, we conclude that the petition for writ of certiorari was untimely filed. Consequently, this court lacks jurisdiction, and the petition must be dismissed.

It is settled law that an order of taking entered in an eminent domain proceeding pursuant to Chapter 74 is not final, but rather is interlocutory in nature. See, e. g., Central Hanover Bank & Trust Co. v. Pan American Airways, Inc., 126 Fla. 736, 171 So. 808 (1937); Trien v. Dade County, 222 So.2d 456 (Fla. 2d DCA 1969). Furthermore, an order of taking is not an interlocutory order which is directly appealable under Fla.R.App.P. 4.2, 1962 Revision [the rules applicable herein]. Review, therefore, must be by way of petition for certiorari. Trien v. Dade County, supra.

As we have said, the order of taking was an interlocutory order. The Florida Rules of Civil Procedure do not allow motions for rehearing of interlocutory orders. Fla.R.Civ.P. 1.530(a). See also Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1 (Fla.1972). An unauthorized and improper motion for rehearing, as in the instant case, does not operate to toll the time for filing a petition for a writ of certiorari. Wagner v. Bieley, Wagner & Associates, Inc., supra.

Accordingly, since the order of taking was rendered on November 9, 1977 and the petition for certiorari was not filed in this court until January 17,1978, it is manifest that the petition was not filed within thirty days from the rendition of said order as required by Fla.R.App.P. 4.5 c. As a result, this court lacks jurisdiction.

Accordingly, this petition for writ of cer-tiorari is hereby DISMISSED.

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

      . We note in passing that Fla.R.App.P. 9.130(a)(3)(C)(ii), 1977 Revision, permits a direct interlocutory appeal of non-final orders which determine the right to immediate possession of property, including orders of taking in eminent domain cases. Of course, the requirement of timely filing of such an interlocutory appeal under the new rule (applicable to proceedings commenced in this court after March 1, 1978) still exists.


text:
    Margaret C. PECKHAM, Appellant, v. GOOD LIFE ENTERPRISES, INC., a Florida Corporation, Philip E. Fayette, Donald L. Bacon and Ronald E. Kmitta, Appellees.
    No. 78-1138.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 1978.
    Robert P. Rosin of Rosin, Abel, Band, Rosin & Brown, Sarasota, for appellant.
    Joseph L. Cardozo of Jones & Cardozo, Sarasota, for appellees.
   PER CURIAM.

The final order dismissing with prejudice appellant’s complaint and appealed herein is hereby reversed and the cause is remanded for further proceedings. See Havatampa Corp. v. Walton Drug Co., Inc., Fla. 2d DCA 1978, 354 So.2d 1235.

HOBSON, Acting C. J., and SCHEB and DANAHY, JJ., concur.