author: GLICKSTEIN, Judge. HURLEY, Judge,

text:
    LASSITER CONSTRUCTION COMPANY, Appellant, v. SCHOOL BOARD FOR PALM BEACH COUNTY, Florida, Appellee.
    No. 79-124.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.
    Rehearing Denied April 8, 1981.

      Alexander Myers of Christiansen, Jacknin & Myers, Palm Beach, for appellant.
    Harry R. Steinhardt and Michael E. Jackson of Jackson & Associates, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal from final agency action of the School Board for Palm Beach County, pursuant to Section 120.68(1), Florida Statutes (1977). We affirm.

The material facts are not in dispute. On November 28, 1978, bids were received and opened by the School Board for additions to the Lake Worth High School. The low bidder was appellant, Lassiter Construction Company, with a bid of $2,793,890. This bid was $277,000 lower than the next responsible bid. Immediately after the bids were opened, James D. Lassiter, appellant’s president, recalculated appellant’s bid. Mr. Lassiter discovered that he had made an error of $100,000 in the preparation of the concrete bid figure. The error was caused when Mr. Lassiter transposed the $346,695 figure for concrete costs from the bid worksheet as $246,695 onto the final bid summary sheet. Mr. Lassiter personally prepared both documents.

Mr. Lassiter immediately notified the School Board through its attorney of the error. Mr. Lassiter was given the opportunity to withdraw his company’s bid but Mr. Lassiter did not request to do so.

On December 18, 1978, Mr. Lassiter appeared at the School Board’s meeting, explained the error, and requested that the Board increase the construction price by $100,000. The Board voted to accept appellant’s bid without the requested increase. At its meeting of January 17, 1979, the School Board failed to reconsider Mr. Lassi-ter’s request to increase the bid.

Appellant argues that because of an honest unilateral mistake, it would be unconscionable and inequitable to require Lassi-ter to perform the contract in accordance with its bid.

In seeking equitable relief against an alleged mistake made in the preparation of such a bid, the complaining party carries a heavy burden. In Graham v. Clyde, 61 So.2d 656 (Fla.1952), the appellee sought aid of a court of equity for rescission of a contract on the ground of a unilateral mistake made in computing items of his bid. The court provided:

... equity will not relieve against the mistake of one guilty of culpable negligence, neither will it relieve against a mistake that could have been avoided by caution. If the one seeking relief could have avoided his mistake by reasonable care or diligence, a court of equity will not relieve him. In other words if one’s mistake is due to his own negligence and lack of. foresight and there is absence of fraud or imposition, equity will not relieve him. .. . After all, the most that can be said is that appellee is seeking relief from a clerical error that he alone was responsible for. It is not contended that an honest unilateral error in reference to a material fact relative to the contract was made. If errors of this nature can be relieved in equity, our system of competitive bidding on such contracts would in effect be placed in jeopardy and there would be no stability whatever to it. It would encourage careless, slipshod bidding in some cases and would afford a pretext for the dishonest bidder to prey on the public. Id. at 657, 658.

Appellant relies upon the decision of the First District Court of Appeal in State Board of Control v. Clutter Construction Corporation, 139 So.2d 153, 157 (Fla. 1st DCA 1962), cert. denied, 146 So.2d 374 (Fla. 1962), in which the court held the contractor was entitled to withdraw his bid for construction of a classroom building where an error of $100,000 on the low side in computation was either due to a malfunction in a computing machine used by an employee or an error by the employee in manipulating it. In so holding, the court distinguished Graham on the basis that the mistake was committed by an employee rather than the complaining party:

In Graham the mistake which formed the basis for the equitable relief prayed for in the complaint was committed by the complaining party. This factor evidently had important bearing on the court’s decision, for it is recited in the opinion: “In some of the cited cases the error was made by a clerk of some one in the employ of the complaining party. In the case at bar the error was made by appellee... The error, in other words, was due to some dereliction on the part of the appellee, rather than on some one employed by him.. . After all, the most that can be said is that appellee is seeking relief from a clerical error that he alone was responsible for.” In the case now under consideration the mistake against which relief is sought was occasioned either by the malfunctioning of a computing machine, or by an error in manipulation committed by an employee of Clutter.... Id., 139 So.2d at 157.

We believe the present case is governed by the decision in Graham v. Clyde, supra. The common thread between the two cases is that the bid was not prepared by a subordinate. In the present case Mr. Lassiter, the president of the corporatioft which bears his name, prepared the bid. Appellant has failed to demonstrate that the mistake was not due to Lassiter’s own negligence. We further note from the record that the error is less than four per cent of the intended bid, and that without the increase of $100,000 appellant would still receive some profit.

For the reasons stated, the decision of the School Board is affirmed.

AFFIRMED.

MOORE, J., concurs.

HURLEY, J., concurs specially.

HURLEY, Judge,

specially concurring.

I join in the judgment of the court because I believe the case at bar is indistinguishable from Graham v. Clyde, 61 So.2d 656 (Fla.1952), and therefore, we must submit to its precedential authority. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). At the same time, I venture to suggest that Graham seems almost one dimensional in its treatment of bidding errors — so much so, that its blind application can produce gross inequity.

If we were free to choose, I would prefer the more flexible framework of State Board of Control v. Clutter Construction Corp., 139 So.2d 153 (Fla. 1st. DCA), cert. denied, 146 So.2d 374 (Fla.1962). There, the court suggests a number of considerations which should be weighed in determining whether to grant relief for a unilateral bidding error:

In order to establish that the mistake is one for which equitable relief may be granted, it must be established that it is one of such consequence that enforcement would be unconscionable; it must relate to the substance of the consideration, that is, a material feature; the mistake occurred regardless of the exercise of ordinary care; and it must be possible under the circumstances to place the other party in status quo. Id. at 156.

The major distinction between Graham and Clutter is that in the former, the employer was responsible for the error, while in the latter, it was caused by the employee. I fail to see the significance in this distinction. I would suggest that the considerations set forth in Clutter, supra, are far more relevant and should apply irrespective of who caused the bidding error.

If we were permitted the latitude of the Clutter decision, then, since the only agency document we have is the minutes of the school board meeting which indicate the vote denying relief to appellant, I would recommend that we invoke subsection 6 of Section 120.68, Florida Statutes (1979), and remand the cause to the school board with directions to conduct a prompt factfinding process directed to the considerations set forth above. Thereafter, it would be the board’s responsibility to enter a written order containing its decision and a statement of the reasons therefor. See Section 120.-68(5)(a), Florida Statutes (1979).

Given the age of Graham v. Clyde, supra, and its importance to the public contracting process, I suggest that we certify the following question to the Florida Supreme Court as being one of great public importance:

IS THE LAW AS SET FORTH IN GRAHAM v. CLYDE, 61 So.2d 656 (Fla.1952) STILL THE LAW OF FLORIDA OR MAY AN APPELLATE COURT APPLY THE HOLDING OF STATE BOARD OF CONTROL V. CLUTTER CONSTRUCTION CORP., 139 So.2d 153 (Fla. 1st DCA), cert. denied, 146 So.2d 374 (Fla.1962) TO CASES IN WHICH THE OWNER OR EMPLOYER PERSONALLY CAUSES THE BIDDING ERROR?


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Evelyn M. MORGAN, Sue Morgan, Gladys Morgan, David Morgan, Theresa Morgan Morton and Cynthia Morgan Davenport, Appellants, v. Dudley KEARNEY and Century Elevator Co., Inc., a Florida Corporation, et al., Appellees.
    No. 79-1227.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1981.
    Rehearing Denied April 8, 1981.
    Steven R. Rosenthal of Litman, Muchnick & Wasserman, Hollywood, for appellants.
    Sheldon R. Rosenthal, Miami, for appel- .. lees.
   PER CURIAM.

This is a timely appeal from two orders which denied a motion for deficiency judgment sought against appellee, Dudley Kear-ney, pursuant to Section 702.06, Florida Statutes (1979), and a subsequent order which denied appellant’s motion for rehearing.

In 1969 appellee Kearney purchased a business from Donald E. Morgan known as Hollywood Elevator Cab Co. and located in Hollywood, Florida. As part of the purchase, Kearney executed a promissory note in the principal sum of $165,000, secured by a Security Agreement/Chattel Mortgage. The security instrument required Kearney to obtain the creditor’s consent prior to disposal of the encumbered collateral. Appellants are the heirs of Donald E. Morgan and recipients of the rights and interests of the subject instruments. The trial court entered final summary judgment against Kearney based on findings that he had disposed of much of the collateral described in the Security Agreement, without consent and in default of its terms and that the sum then owed appellants, including interest, was $93,085.20. The trial court also ordered a public sale of the undisposed of collateral. Appellants purchased the remaining collateral at the foreclosure sale on a bid of $16,000 and subsequently sold it to a third party for $20,000.

There was no record made of the hearing upon appellants’ motion for deficiency judgment and the trial court’s orders are devoid of any finding of fact or specificity of grounds for denial.

On November 18, 1980, we ordered the parties to prepare a statement of evidence of the deficiency proceedings and the trial court to enter an order of settlement and approval within thirty days in accordance with Florida Rule of Appellate Procedure 9.200(b)(3). In response to our order each party prepared a statement, and the two were in utter conflict.

Rather than comply with our order, the trial judge took no action on the statements. Thereafter the trial judge resigned from office on January 31, 1981, without having taken any action.

We are left, therefore, without any usable record of the proceedings of the deficiency hearing. In the absence of such record, we have no alternative but to affirm. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

AFFIRMED.

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    William O. SANDERS, Appellant, v. PUTNAM COMMUNITY HOSPITAL, Appellee.
    No. 80-148.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 1981.
    Rehearing Denied March 27, 1981.

      T. G. LaGrone, Orlando, for appellant.
    Anthony J. Salzman of Jones & Langdon, P.A., Gainesville, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals a final order dismissing his suit against the hospital for failure to state a cause of action. We reverse.

Appellant’s second amended complaint contained four counts alleging that the hospital was liable for the actions of a doctor who treated him in the hospital emergency room for an injury to his ankle. Liability was predicated on several different theories. Each count realleged all of the allegations of the previous count. The trial court dismissed the action when appellant elected not to amend on the grounds that it failed to state a cause of action.

Appellant had alleged the following in his second amended complaint.

1. That he was admitted to the hospital as a paying patient for a fracture.
2. That a hospital employee diagnosed his condition and that appellant signed an authorization for necessary medical procedures.
3. That a hospital employee delegated to Dr. Laltoo the orthopedic surgical care of appellant.
4. That the surgery was not of the type to which appellant had consented and that the surgery was negligently performed.
5. That the hospital had actual knowledge that Dr. Laltoo was not qualified to perform complex orthopedic surgery for fractures and was certified by the hospital only for ‘simple’ ankle injuries and dislocations.
6.That appellant has suffered permanent damage.

Appellant identified the duty of care owed to him, the breach of that duty, causation and resulting injury. See Peeler v. Independent Life & Acc. Ins. Co., 206 So.2d 34 (Fla. 3rd DCA 1968). Florida has recognized that a hospital is vicariously liable for the torts of its employees. Wilson v. Lee Memorial Hosp., 65 So.2d 40 (Fla.1953); City of Miami v. Oates; 152 Fla. 21, 10 So.2d 721 (1942); Variety Children's Hosp., Inc. v. Perkins, 382 So.2d 331 (Fla. 3rd DCA 1980).

Appellant also alleged:

1. That the hospital employed Dr. Lal-too;
2. That Dr. Laltoo was acting within the scope of his employment at all times material to the cause.
3. That Dr. Laltoo negligently performed surgery;
4. That appellant suffered permanent damage.

Appellee contends that appellant failed to allege the specifics of employment; for example, his salary, hours, whether he maintains a separate practice, whether he has regular call duties, etc. Appellee argues that if Dr. Laltoo is an independent contractor, there is no liability as a matter of law. Wilson v. Lee Memorial Hosp.; Variety Children’s Hosp., Inc. v. Perkins. The appellant is not required to prove that the doctor was employed to withstand the motion to dismiss. If the allegations, if true and proven at trial, would result in liability on the part of the hospital, appellant has stated a cause of action. See Hammonds v. Buckeye Cellulose Corp., 285 So.2d 7 (Fla.1973). The question where to draw the line between a privately retained physician and that of a hospital for injury to an emergency room patient is a question for the jury. Hunt v. Palm Springs Gen. Hosp., Inc., 352 So.2d 582 (Fla. 3d DCA 1977).

The complaint sets out several theories of liability which were legally sufficient; The complaint is disjointed, verbose, excursive and contains numerous conclusions and sympathetic ploys. It violates most of the rules of good pleading and was undoubtedly exasperating to opposing counsel and to the trial judge. Nonetheless, essential allegations of facts comprising the required elements of several theories of liability are present and the complaint is not subject to dismissal for failure to state a cause of action. The question whether the second amended complaint was subject to dismissal or a motion to strike for failure to comply with rule 1.110, Florida Rules of Civil Procedure, which defines the general rules of pleading, is not before us; therefore, we must REVERSE.

ORFINGER, J., and CLARK, HAROLD R., Associate Judge, concur.


author: HOBSON, Acting Chief Judge.

text:
    Janet C. STIFF, Appellant, v. Robert M. STIFF, Appellee.
    No. 80-713.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1981.
    Rehearing Denied March 25, 1981.
    John M. Edman of Meros, Coit, Edman, Meros, Smith & Meros, P. A., St. Peters-burg, for appellant.
    William J. McLeod, Jr., of Baynard, McLeod & Lang, St. Petersburg, for appel-lee.
   HOBSON, Acting Chief Judge.

Appellant wife appeals that portion of the final judgment of dissolution of marriage which awarded her rehabilitative alimony for four years.

The parties were married for 26 years and are parents of two adult children. During most of the marriage, the husband pursued his career and the wife stayed at home raising the two children. At the time of the dissolution, the husband was 48 years old and in good health. The wife was 47 years old and has chronic cystic mastitis, which condition does not limit her activities but calls for weekly visits to the doctor for removal of sutures rejected by her body after surgery in 1979.

Testimony at the final hearing revealed that the husband is a newspaper editor who earned $77,000 in 1977, $82,700 in 1978, and $87,200 in 1979. The parties testified that they lived in a nice area of St. Petersburg in a comfortable home and had traveled extensively in conjunction with the husband’s business and during vacation time. The husband testified that the parties enjoyed an upper medium standard of living, and the wife described the standard of living as high but not extravagant.

During the last four or five years of the marriage, the wife pursued a college degree at the husband’s expense and graduated cum laude from the University of South Florida with a degree in the combined major of sociology and political science.

Two weeks before the hearing in this cause, the wife went to the Florida State Employment Agency and was told that she was fit to do only clerical work. She was sent out to secure a bank teller’s job paying $6,900 per year after being told that her recent college degree meant nothing.

The husband’s expert witness, a labor market analyst, testified that the wife would qualify for a federal or state job which might take a period of six months for testing and job selection. He stated that a state job for a professional person would start at approximately $10,200 per year and that a federal job would start at approximately $8,500 per year. The market analyst testified that if the wife had gone to work 25 years ago and was good in her career, she would be making approximately $17,000 per year at the present time.

The trial court entered its order finding that the wife needed, and with diligent effort could have, an income equal to or exceeding $24,499.88 per annum. This figure included income derived from the parties’ property settlement agreement as well as earned income. The court further found that the husband had the ability to pay that amount of support.

In its final judgment, the court distinguished the facts of the instant case from those in Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975). We find that case strikingly similar to the case at bar. In Lash, the parties were married for 26 years and were parents of an adult child. The wife was 44 years old and had worked periodically during the marriage, but was not employed at the time of dissolution. She had undergone surgery on her foot which as still painful and which would require additional surgery. The husband was earning an annual salary of approximately $29,000. In reversing the award of rehabilitative alimony and instituting permanent alimony, we stated:

[I]n a marriage where the wife has stayed home, the husband has had the opportunity of enhancing his working expertise during the entire period of his married life; whereas, the wife, if anything, may now be less equipped for work than she was when she became married. Moreover, the employment opportunities of a woman at the age of eighteen are brighter than those of a woman at the age of forty-four.

307 So.2d at 243.

In the instant case the wife was 47 years old at the dissolution of the 26-year marriage. She had remained at home during the marriage and raised two children. She suffers from chronic cystic mastitis and had surgery in 1979 to remove cystic tissues from her breast. At the time of the final hearing she had not been released from the doctor’s care and had to see him once a week. These health difficulties would create problems with any prospective employer and would likely limit her ability to be placed. Even with a college degree, her lack of experience would hinder her ability to maintain herself at the standard of living set during her marriage.

The trial court noted in the final judgment that if the wife were unable to earn sufficient income to maintain her standard of living, the court would be open for her to show that she required additional alimony from the husband. Nevertheless, we hold that under the circumstances of this case the wife should have been awarded permanent periodic alimony. This would place the burden on the husband of showing substantial change in circumstances in order to justify a subsequent modification if the wife were able adequately to support herself. Permanent periodic alimony is subject to modification and may be converted to rehabilitative alimony. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

In view of the trial court’s holding that the husband has the ability to pay the amount of support awarded, we reverse that portion of the final judgment which awarded rehabilitative alimony of $471.15 per week to the wife and hereby institute this amount as permanent periodic alimony.

BOARDMAN and CAMPBELL, JJ., concur.


author: COWART, Judge.

text:
    Peter Daniel SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 80-425.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.
    Rehearing Denied March 26, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

Appellant appeals from a verdict of guilty and from the sentence imposed claiming that the trial court erred in denying his motions for judgments of acquittal made during trial because the evidence was insufficient to establish a prima facie case of the crime charged and that the trial court erred in sustaining the state’s objection to a statement appellant's trial counsel made in closing argument.

A verdict is not appealable. See Fla.R.App.P. 9.140(b)(1) and § 924.06(1), Fla.Stat. (1979). The points raised on appeal relate to the final judgment adjudicating guilt, which was not appealed, but not to the legality of the sentence. As to the verdict this appeal is dismissed. The sentence is

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur.


author: COBB, Judge.

text:
    Keith Virgil SOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 80-919.
    District Court of Appeal of Florida, Fifth District.
    March 4, 1981.
    Rehearing Denied March 26, 1981.
    Harry D. Carls, Public Defender, and Glenn Klausman, Asst. Public Defender, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

Sowers entered a plea of nolo contendere to a charge of sale and delivery of a controlled substance, specifically reserving the right to appeal the trial court’s denial of a motion to discharge under the speedy trial rule, and denial of a motion to dismiss.

On January 4, 1979, Sowers was taken into custody. After defendant filed a motion to dismiss, on May 17, 1979, the state filed a motion to toll the running of the speedy trial time. On May 17, 1979, the trial court tolled the speedy trial period for two (2) weeks to allow the state to file an answer. After the state’s answer was filed, the trial court denied defendant’s motion. On July 17, 1979, the same day the motion to dismiss was denied, defendant filed a “Motion To Continue And Toll The Speedy Trial Period” pursuant to Florida Rule of Criminal Procedure 3.191(dX2), for the purpose of defendant’s filing an interlocutory appeal of the denial of the motion to dismiss. Defendant’s motion specifically requested that the speedy trial period be tolled until a final mandate was issued by the appellate court. However, on July 17, 1979, the trial court, in granting the motion, stated:

ORDERED AND ADJUDGED that Defendant’s Motion to Continue With a Tolling of the Speedy Trial Period, pursuant to 3.191(d)(2), FRCrP, be and is hereby GRANTED.

The order itself does not grant an extension for the time period of the appeal or any reasonable period following appeal and is, on its face, indefinite. We cannot accept a construction of the order that would grant the state no time following the appellate mandate within which to go to trial.

Subsequently, defendant petitioned for writ of prohibition to the Florida Supreme Court. On August 27,1979, the prosecution received the mandate denying the writ of prohibition. On November 26, 1979, defendant filed a motion for discharge, which was denied.

Since a specific time period for the extension was not set out, the possible exceptions of Florida Rule of Criminal Procedure 3.191(aX3) to the rule that a defense requested continuance takes the case out of Rule 3.191 are not applicable.

Since there was an indefinite extension and no specific time period prescribed, the constitutional reasonableness test applies, rather than the time periods set out in Rule 3.191. See State v. Jenkins, 389 So.2d 971 (Fla.1980). There being no showing of a violation of the constitutional right to speedy trial, the order denying the motion for discharge is affirmed.

The other points raised by appellant do not merit extended discussion and the order denying the motion to dismiss is affirmed. See Sowers v. State, 386 So.2d 245 (Fla.1980); State v. Miller, 313 So.2d 656 (Fla.1975); State ex rel. Register v. Safer, 368 So.2d 620 (Fla. 1st DCA 1979).

AFFIRMED.

ORFINGER and UPCHURCH, JJ., concur.

      . We note that, given the previous two-week extension, it was on this date that the procedural speedy trial period would have expired.

      . E. g., State v. Bufford, 383 So.2d 928 (Fla. 5th DCA 1980).


text:
    DEPARTMENT OF NATURAL RESOURCES, Appellant, v. John D. EDRINGTON, Appellee.
    No. WW-111.
    District Court of Appeal of Florida, First District.
    March 10, 1981.

      Henry Dean, Dept, of Natural Resources, Tallahassee, for appellant.
    David J. Busch of Busch & White, Chartered, Tallahassee, for appellee.
   PER CURIAM.

The Department of Natural Resources appeals an order of the Career Service Commission (Commission) which reinstated ap-pellee to a position from which he had been dismissed November 15, 1979. We must affirm.

First, the basis for reviewing the Commission’s order is whether there is competent substantial evidence to support the order of the Commission. Section 110.309, Florida Statutes (1979) provides in pertinent part:

(1) A permanent employee in the State Career Service system who is suspended or dismissed by an agency or officer shall be entitled to a de novo fact-finding hearing. Such hearing shall be conducted by the commission itself, unless otherwise provided for by law.
(3) Upon a finding that just cause did not exist for the suspension or dismissal, the commission may order the reinstatement of the employee, with or without back pay.
(4) Upon a finding that just cause for disciplinary action existed, but did not justify the severity of the action taken, the commission may, in its discretion:
(a) Reduce a dismissal to a suspension for such time as the commission may fix; or
(b) Reduce the period of a suspension.
(5) Any order of the commission issued pursuant to subsection (3) or subsection (4) shall be conclusive on the agency or officer concerned .... [Emphasis added.]

Section 110.305(7) provides for review of Commission orders as follows:

Decisions issued by the commission pursuant to this part shall be final agency action which shall be reviewable pursuant to chapter 120.

In turn, Section 120.68(10) provides:

If the agency’s action depends on any fact found by the agency in a proceeding meeting the requirements of s. 120.57 of the act, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency’s action depends on any finding of fact that is not supported by competent substantial evidence in the record.

Prior to the statutory changes in Chapter 110 it is clear that the standard of review was whether there was competent substantial evidence to support the Commission’s order, given that the role of the Commission was to determine if there was competent substantial evidence to support the agency’s action in dismissing an employee. See Florida Dept. of Offender Rehabilitation v. Dunlap, 344 So.2d 608, 611 (Fla. 1st DCA 1977) and cases cited therein. Now Chapter 110, quoted above, makes it clear that the Commission does not perform primarily a review function. Rather it “reviews” a dismissal in the broad sense that the legislature authorizes it to conduct a de novo fact-finding hearing. Accordingly, it is not required to uphold the agency’s dismissal though there may be competent substantial evidence supporting such action. The Commission, as the initial and sole trier of the facts, may judge credibility of witnesses, draw inferences from the evidence, and weigh the evidence. If the findings of fact in this regard support a determination that just cause did not exist for dismissal, then this finding is conclusive on the agency concerned if it is supported by competent substantial evidence in the record.

It is unnecessary to detail the factual issues presented in this case. In short, in light of the foregoing, we must affirm the Commission’s decision on all counts because the Commission’s finding that just cause did not exist is supported by competent substantial evidence. The other procedural points raised are without merit.

AFFIRMED.

McCORD, SHIVERS and JOANOS, JJ., concur.

      . Former Section 110.061, Florida Statutes (1975) provided merely that the Commission shall make its finding and decision after hearing the appeal.


author: HERSEY, Judge.

text:
    HOLLAND BUILDERS, INC., a Florida Corporation, and Shelby Mutual Insurance Company, a foreign corporation, Appellants, v. William LECK and Nancy Leck, as natural guardians and next friends of George Leck, a minor, and William Leck, individually, and Ray Scholler, Appellees.
    No. 79-1020.
    District Court of Appeal of Florida, Fourth District.
    March 11, 1981.
    Rehearing Denied April 9, 1981.
    Steven R. Berger of Steven R. Berger, P. A., Miami, for appellants..
    Kurzban & Kurzban, P. A., Miami, and Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, for appellees.
   HERSEY, Judge.

This was an action against the owner of land for monetary damages resulting from physical injuries incurred by a minor who, while riding his motorcycle along a path on vacant property, collided with a barbed wire fence.

The land in question was basically raw acreage. It was owned at one time by Florida Palm Aire. This corporation entered into an arrangement with one Raymond Scholler requiring Scholler to maintain the property in exchange for the right to graze his cattle on it. An existing fence had been torn down and two or three weeks prior to the accident Scholler constructed the barbed wire fence involved here. The new fence obstructed a trail or path that previously had not been so obstructed.

George Holland became acquainted with this property through a broker and purchased it in the name of his corporation, Holland Builders, Inc. On several occasions prior to the accident Holland visited the property but on each occasion his inspection was limited to the perimeter of the property. He never examined the interior of the property nor did he see children playing there; he saw no cattle and knew nothing about Scholler or the maintenance arrangement or the barbed wire fence. The property was acquired for the purpose of residential housing to be constructed sometime in the future, so that no particular maintenance was required in the interim.

Thirteen year old George Leek, while riding his trail bike along the path where he had ridden previously, ran into the barbed wire fence. It was impossible to see the strands of wire from a distance and there were no warning signs on the property or flags on the wire.

Suit was filed alleging that Holland Builders, Inc. negligently erected the fence. An amended complaint alleging that the property was negligently maintained was filed when plaintiffs learned that Scholler had erected the fence. A third party complaint was filed by Holland Builders, Inc. against Scholler and Palm Aire Corporation. The latter corporation was granted a directed verdict and is not a party to this appeal. A jury returned a verdict in the amount of $100,000, finding no negligence on the part of the injured minor and finding that Holland Builders, Inc. was 60% negligent and that Raymond Scholler was 40% negligent.

This appeal from the final judgment upon the jury verdict and the denial of post-trial motions followed.

We find merit in only one point relied upon by appellant, Holland Builders, Inc., which requires a new trial.

The court refused to give an instruction to the jury on the status of the injured minor with relation to the property-owner and the effect that status would have on the duty owed him by the property-owner. Instead, the trial court gave the following instruction:

The issue for your determination on the claim of the Plaintiffs against the Defendant, Holland Builders, is whether the Defendant, Holland Builders, negligently failed to warn the Plaintiff, George Leek, of a dangerous condition and risk, which were known to the Defendant and which the Plaintiff neither knew or should have known by the use of reasonable case; and if so, whether such negligence was a legal cause of the injuries sustained by the Plaintiff, George Leek.

This instruction ignores the crucial distinction between one who is a trespasser or uninvited licensee and one who is an invitee. “The classification is important because it determines the duty of care owed the visitor by the property owner or occupier.” Post v. Lunney, 261 So.2d 146, 147 (Fla.1972). The classification was further refined and the distinctions reemphasized in Wood v. Camp, 284 So.2d 691 (Fla.1973).

If the injured minor here was found by the jury to be either a trespasser or an uninvited licensee, then “the owner or possessor ... owes ... a duty only to avoid willful or wanton harm to him and, upon discovery of his presence, to warn him of any known dangers which would not be open to his ordinary observation.” Nolan v. Roberts, 383 So.2d 945, 946 (Fla. 4th DCA 1980).

The jury should have been instructed on the status of the injured minor and the duty attaching to the owner or possessor of land with respect to invitees and with respect to trespassers and uninvited licensees.

We reverse the final judgment and remand with instructions to grant a new trial.

REVERSED AND REMANDED FOR NEW TRIAL.

LETTS, C. J., and BERANEK, J., concur.


author: ORFINGER, Judge.

text:
    STATE of Florida, Appellant, v. Patricia A. NAUGHTON, Appellee.
    No. 79-77.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.
    Douglas Cheshire, Jr., State Atty., and Norman A. Tharp, Asst. State Attorney, Titusville, for appellant.
    David M. Porter, Public Defender, and James Earl Figgatt, Asst. Public Defender, Titusville, for appellee.
   ORFINGER, Judge.

Appellee’s motion for discharge under Florida Rule of Criminal Procedure 3.191 was granted by the trial court and the State appeals.

Late in the night of December 5, 1978, appellee, while operating her motor vehicle was involved in a collision which resulted in the death of the occupant of the other vehicle. Appellee was injured in the collision and was transported from the scene to the hospital. While there, and at the request of an officer of the Florida Highway Patrol, a blood sample was extracted from appellee for testing. Before taking the blood sample, the hospital personnel insisted that the officer sign a request form, which they handed him and which he testified he signed without reading. The pre-printed hospital form read in part: “I further certify that_has been lawfully arrested by me and I have reasonable cause to believe said individual was driving a motor vehicle under the influence of alcoholic beverages.” Into the blank space someone inserted appellee’s name. Since it was now after midnight, the officer dated the form December 6, 1978, and signed it.

After the blood sample was taken and appellee was treated, she was released from the hospital and returned to her home in New York. On February 22,1979, an information was filed against her charging her with vehicular homicide, and when she returned to Florida on June 21,1979, she was taken into custody and booked on these charges.

While in the order granting the motion for discharge under the speedy trial rule entered on August 16, 1979 the court does not say when the time for trial began to run, it did say that the time within which appellee should have been brought to trial expired on June 5,1979. There is no showing of a demand for trial by appellee; thus the State had 180 days from the time appel-lee was taken “into custody as a result of the conduct or criminal episode giving rise to the crime charged.” Fla.R.Crim.P. 3.191(a)(1). It follows then that the trial court must have concluded that the time for trial began to run on December 6,1978, the date on which the blood sample was taken at the request of the officer.

The officer stated that he did not arrest the appellee at the hospital, and that he did not read the form he signed which says that he had arrested her. The officer further testified that appellee was in a state of semiconsciousness and was incoherent, so she was not placed under arrest nor advised of the consequences of refusing a chemical blood alcohol test. Appellee was released from the hospital, apparently with no regard to any supposed detention, and she went home. The record does not demonstrate that an arrest took place at the hospital.

There is nothing in the statute, section 322.26, Florida Statutes (1977), which requires that a person be arrested prior to submitting to a chemical blood alcohol test. Neither is a prior arrest a constitutional prerequisite to the taking of a blood alcohol sample. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Mitchell, 245 So.2d 618 (Fla.1971); Filmon v. State, 336 So.2d 586 (Fla.1976); cert. denied Filmon v. Florida, 430 U.S. 980, 97 S.Ct. 1675, 52 L.Ed.2d 375 (1977). These holdings, however, do not preclude an arrest if otherwise proper, so we look further to see if an arrest actually occurred here.

The appellee alleges without a recitation of supporting authority that the seizure of the appellee’s blood was an “actual or constructive seizure or detention of the person to be arrested ...” and as such marked the point in time at which appellee was taken into custody for the purposes of the speedy trial rule. There is no support in case law or in the statute for the proposition that the taking of a blood sample from a suspect constitutes a taking into custody. Indeed, even an “actual or constructive seizure or detention of the person to be arrested” in itself has been held not to constitute the type of custody that would trigger the running of speedy trial. In State v. Robbins, 359 So.2d 39 (Fla. 2d DCA 1978), the court held that when an accused is stopped and temporarily detained, but is not placed in a cell or fingerprinted, and is allowed to leave without being placed under arrest, he has not been placed “in custody” within the meaning of Fla.R.Crim.P. 3.191(a)(1), although he has been placed “in custody” for the purposes of the Miranda requirement. Even a control of the subject so pervasive as taking him to the police station for questioning has been held not to constitute “custody” for the purposes of the speedy trial rule. State ex rel. Dean v. Booth, 349 So.2d 806 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 129 (1978).

The elements of arrest are (1) the purpose or intention to effect an arrest under real or pretended authority; (2) an actual or constructive seizure or detention of the person to be arrested; (3) communication by the arresting officer to the person whose arrest is sought of an intention or purpose then and there to effect an arrest and (4) an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest him (or her). Melton v. State, 75 So.2d 291 (Fla.1954). In the affidavit made by the officer he alleges that the appellee was semi-conscious and incoherent at the time the blood was taken from her and that he did not in fact arrest her. Appellee’s condition as related by the officer is not disputed, so it is clear that no arrest could have taken place at that time because of the impossibility of an understanding by her of any communication that she was arrested.

The trial court found that the officer signed the form “through inadvertence,” so the signing of the form is not conclusive on the question of arrest. The taking of the blood sample neither constitutes an arrest nor is an arrest a prerequisite to the taking of the sample. Further, there is no other evidence that an arrest took place on December 6, 1978. Thus, the order discharging appellee was error, because she was not taken into custody for this offense until June 21, 1979, and 180 days had not run at the time she was discharged on August 16, 1979.

The order of discharge is set aside and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

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

      . Fla.R.App.P. 9.140(c)(1)(E).

      . On the contrary, it has been held that the taking of a blood sample to determine its alcohol content does not constitute an arrest or a taking into custody such as will commence the running of the speedy trial rule. Gagel v. Cornelius, 380 So.2d 1333 (Fla. 5th DCA 1980).


text:
    Weldon James VARNER, Appellant, v. STATE of Florida, Appellee.
    No. 79-346.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.

      Jack 0. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

There was substantial competent evidence to support the trial court’s finding that appellant took a certain speaker from the ceiling of a community correctional facility and converted it to his own use. Whether or not it violated a regulation of the correctional facility, this action constituted a theft and breached the condition of probation that required appellant not to violate any law. The order revoking appellant’s probation is

AFFIRMED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


text:
    Margaret Joann PADGETT et al., Appellants, v. The SCHOOL BOARD OF ESCAMBIA COUNTY, Florida, et al., Appellees.
    No. UU-234.
    District Court of Appeal of Florida, First District.
    March 18, 1981.

      W. H. F. Wiltshire and James M. Wilson of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellants.
    G. Miles Davis of Beggs & Lane, Pensacola, for appellees.
   PER CURIAM.

This appeal is taken from an order dismissing a third amended complaint with prejudice on the ground that the appellants failed to allege any duty owed them by appellee, The School Board of Escambia County. This action was brought by Margaret Joann Padgett on behalf of her minor son, David Lee Huddleson (appellants), to recover damages for serious injuries allegedly caused by defendants that Huddle-son incurred while he was crossing a street at or near a school crossing in Escambia County.

We reverse the order only as to those allegations concerning the principal’s negligent operation of or failure to operate the warning signals at the school crossing, as those allegations adequately allege a duty. The remaining allegations which relate to activities not voluntarily assumed by the principal are not actionable.

The third amended complaint alleged that the School Board, through the acts of its principal, had voluntarily undertaken to operate flashing operating lights at the school crossing. For purposes of a motion to dismiss the allegations of a complaint are taken to be true. It is also axiomatic that the law imposes an obligation on everyone who attempts to do anything, even gratuitously, for another to exercise some degree of care and skill in the performance of what he has undertaken. Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932); Fla.Jur., Negligence, § 13. See also, Shealor v. Ruud, 221 So.2d 765 (Fla. 4th DCA 1969), which held that once a city had elected to install a traffic warning system, it had assumed a duty to operate the system properly.

It cannot be determined from the face of the complaint, or as a matter of law, that the principal was not acting within the scope of his employment by his decision to operate the warning lights. There does not appear to be any legal authority precluding agents of the school board from operating traffic control lights. On the contrary, the school board has the authority to operate school crossing lights if it chooses to do so. See Section 232.25, Florida Statu tes. (1975). Moreover, Section 316.184, Florida Statutes (1975), which places the duty of installing and maintaining school traffic control devices upon the Department of Transportation and local government authorities, in no way preempts a school board from operating school traffic control devices. And finally, although the principal, as the School Board argues, may have presumptively been without authority to operate the light since the appellants did not allege in their complaint that the school board had adopted a rule pursuant to Section 232.25, which would have given the principal authorization, nevertheless, the failure to so allege does not require dismissal of the complaint. Cases are legion holding a principal liable to a third party for an unauthorized act of an agent when the agent was acting within his or her apparent authority. Further, the legal concepts “scope of employment” and “actual authority” are not mutually inclusive. An agent may still have acted within the scope of his authority even though he deviated from his employer’s instructions. See United States v. Haney Chevrolet, Inc., 371 F.Supp. 381 (M.D.Fla.1974). Also, conduct may be within the “scope of employment” even if it is unauthorized, if it is of the same general nature as, or sufficiently similar to, authorized conduct, taking into consideration the various factors relevant to the master-servant relationship. Lewis v. Walston & Co., Inc., 487 F.2d 617 (5th Cir. 1973). If the school principal here was not acting within the scope of his employment when he operated or failed to operate the warning lights, the appellees could raise this issue in the form of an affirmative defense. The question whether a tort committed by an agent is within the scope of his employment is normally to be determined by the jury. Green Cove Springs v. Donaldson, 348 F.2d 197 (5th Cir. 1965).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

ERVIN, SHAW and WENTWORTH, JJ., concur.

      . Section 232.25, Florida Statutes (1975), provides:
      [T]he state board or the district school board may, by rules and regulations, subject each pupil to the control and direction of the principal or teacher in charge of the school during the time he is otherwise en route to or from school or is presumed by law t6 be attending school.


author: WENTWORTH, Judge.

text:
    Douglas Perry ARD, etc., Appellant, v. Sylvia Elaine ARD, etc. et al., Appellees.
    No. UU-374.
    District Court of Appeal of Florida, First District.
    March 18, 1981.

      John E. Venn, Jr. of Smith, Sauer & Venn, Pensacola, for appellant.
    Miles Davis, Edward P. Nickinson, III, Pensacola, and Richard M. Denney, Fort Walton Beach, for appellees.
   WENTWORTH, Judge.

The appellant Ard, as guardian for Benji Dwain Clary, a minor, appeals a summary judgment holding the child’s negligence action to be barred by the immunity doctrine pertaining to suits between parent and child. After oral argument on the appeal, we reverse but certify the cause to the Supreme Court as one involving both a question of great public importance and involving a conflict with decisions of other district courts in Florida. See Horton v. Unigard Insurance Co., 355 So.2d 154 (Fla. 4th DCA 1978), cert dismissed, 373 So.2d 459 (Fla.1979); Webb v. Allstate Insurance Co., 258 So.2d 840 (Fla. 3d DCA 1972); Rickard v. Rickard, 203 So.2d 7 (Fla. 2d DCA 1967).

The complaint filed in this case against Sylvia Elaine Clary Ard and her two liability insurance carriers alleged that in 1975 she negligently unloaded her child Benji from a motor vehicle, placing him in a position of peril, and “[a]s a result Benji was injured when such motor vehicle ran over him.” Amendments were proffered alleging [1] “[tjhis action will not disturb or disrupt the parent-child relationship.... [2] to deny benefits under an available insurance policy ... will itself have an adverse effect on the family relationship . .. the parent and the child have not colluded or conspired to promote a fraudulent or collusive lawsuit [and 4] there are witnesses available other than the parent and child who can substantiate Plaintiff’s claim that Defendant Ard was negligent.” The motion to amend was denied because of the court’s “opinion that the allegations set forth in the proposed amendment would not materially affect its decision” on the motion for summary judgment.

The parties agree that the issue of parental immunity is one of first impression in this district, but disagree on the relationship between this issue and that of spousal immunity, recently reaffirmed in Florida. See Raisen v. Raisen, 379 So.2d 352 (Fla.1980). Because our Supreme Court has not in any case to date been required to adjudicate and apply the parental immunity doctrine (but has instead only acknowledged the rule by dictum in Orefice v. Albert, 237 So.2d 142 (Fla.1970), and Raisen, supra), we conclude that the requirement for following its precedent (Hoffman v. Jones, 280 So.2d 431 (Fla.1973)) does not relieve this court of the obligation to consider and act on the merits of this issue on which there exists no such controlling precedent. The Court has often acknowledged that principle:

It is a maxim not to be disregarded that general expressions in every opinion .... [which] go beyond the case . . . may be respected, but ought not to control the judgment in a subsequent suit where the very point is presented for decision .... Therefore, in applying cases which have been decided, what may have been said in an opinion . .. should not be extended to cases where the facts are essentially different. When this rule is followed, much of the misapprehension and uncertainty that often arise as to the effect of a decision will be practically avoided. Ex parte Amos, 93 Fla. 5, 112 So. 289, at 294-5 (1927).

With respect to the conflicting decisions of other Florida courts, supra, their conclusions equating parental and spousal immunity appear to have been reached without full consideration of the common law origin of the immunity doctrine as to spouses but not as to parents and children. The distinction is stated as follows:

The common law had no similar concept of unity of legal identity in the case of a parent and his minor child. Although the parent was given custody of the child, the latter remained a separate legal person, entitled to the benefits of his own property and to the enforcement of his own choses in action, including those in tort, and was liable in turn as an individual for his own torts. Prosser, Law of Torts § 122, p. 864 (4th ed. 1971).

In the present case, therefore, we may not avoid judicial responsibility by invoking the general rule of legislative prerogative applied by the Court in Raisen to continue spousal immunity:

Originally a part of the common law of England, interspousal tort immunity was adopted into the law of Florida in 1829 by the enactment of what is now section 2.01, Florida Statutes (1977). Corren v. Corren, 47 So.2d 774 (Fla.1950). As a general rule, that part of the common law codified by section 2.01 should be changed through legislative enactment and not by judicial decision. Only in very few instances and with great hesitation has this Court modified or abrogated any part of the common law enacted by section 2.01, and then only where there was a compelling need for change and the reason for the law no longer existed. Raisen, supra, at 353-4.

That principle of legislative deference was forthrightly rejected in an earlier case with respect to a municipal immunity rule which was found not to be rooted in common law. Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957). The Court noted “our constitutional guarantee that the courts shall always be open to redress wrongs and . .. our sense of justice that there shall be a remedy for every wrong committed . ... ” and held “the courts should be alive to the demands of justice. We can see no necessity for insisting on legislative action in a matter which the courts themselves originated.” Hargrove, supra, at 132.

The law and rationale for and against parental immunity has been exhaustively treated by courts and scholars in recent years. Annot., Negligent Parent-Child Injury-Liability, 41 A.L.R.3rd 904; 4 Nova Law Journal 25 (1980), “Time to Abolish Parent-Child Tort Immunity: A Call to Repudiate Mississippi’s Gift to the American Family.”; 47 Univ.Colo.L.Rev. 795 (1976), “The ‘Reasonable Parent’ Standard: An Alternative to Parent-Child Tort Immunity.” As a predicate for our conclusion against adopting the parental immunity rule for this district at this late date, we point to the summation of the opinion in Quest v. Joseph, 392 So.2d 256 (Fla. 3rd DCA), by which the District Court of Appeal, Third District (which previously recognized such immunity), permitted a statutory contribution action by a third party against a parent jointly liable: “It must be acknowledged that the result makes Florida the worst of all possible jurisdictions for an injured child. He may not sue his parent directly; and any action against a negligent third-party may be inhibited or compromised by the fact that the third-party defendant can.” Quest, supra, at 262, fn. 11. See also Mantilla v. Hassanien, 396 So.2d 1135 (Fla. 3rd DCA).

A recent opinion of-the Kansas Supreme Court contains a comprehensive treatment of the history, development and current arguments for and against the doctrine. Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (Kan.1980). We conclude that court’s opinion adequately states our view:

In 1977, the American Law Institute adopted § 895G of the Restatement (Second) of Torts (1979), which rejected the immunity from liability in tort between parent and child. In lieu thereof, it recognized privileges arising out of the parent-child relationship. It states as follows:
‘§ 895G. Parent and Child.
(1) A parent or child is not immune from tort liability to the other solely by reason of that relationship.
(2) Repudiation of general tort immunity does not establish liability for an act or omission that, because of the parent-child relationship, is otherwise privileged or is not tortious.’
In the comment to § 895G, the Restatement .... states in part as follows:
‘Parental discretion is involved, and to say that the standard of a reasonable prudent parent is applied should be to recognize the existence of that discretion and thus to require that the conduct be palpably unreasonable in order to impose liability.
... in the case of a negligent tort there is an analogy to the defense of assumption of risk. For activities central to that relationship, particularly within the home itself, there is some relaxation of the stricter standard of conduct applied in dealing with third persons....
These problems are comparatively new to the courts as a result of the recent abrogation of immunity, and the courts have not yet worked out a full analysis of the proper legal treatment. The reasons put forward for a general tort immunity still carry weight and some courts conclude that there should be a remaining immunity for certain types of activities. The analysis here, however, seems more appropriate than the granting of a categoric immunity for these types of activities, regardless of the blatancy of the negligence or the wilfulness of the conduct.’ We believe that the authorities which favor abrogation of the parental immunity doctrine state the proper approach in light of modern conditions and conceptions of public policy. We see no good reason why children should not enjoy the same right to protection and to legal redress for wrongs done them as others enjoy. We question the view that a regard for family harmony and tranquility necessitates denial of tort recovery to a child injured in an automobile accident. We have concluded that, under the factual circumstances of this case, an uneman-cipated minor child may recover damages in an action brought against a parent for personal injuries caused' by the negligence of the parent in the operation of a motor vehicle. This conclusion is consistent with a growing list of states which, in recent years, have adopted this position. States which have abolished parental immunity in all cases or in automobile accident cases include:
Alaska—Hebel v. Hebel, 435 P.2d 8 (Alaska 1967);
Arizona—Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970);
California—Gibson v. Gibson, 3 Cal.3d 914, 92 Cal.Rptr. 288, 479 P.2d 648 (1971);
Connecticut — G.S.1979 Supp. 52-572c.
Hawaii — Tamashiro v. De Gama, 51 Haw. 74, 450 P.2d 998 (1969);
Petersen v. City & County, 51 Haw. 484, 462 P.2d 1007 (1969);
Illinois — Schenk v. Schenk, 100 Ill. App.2d 199, 241 N.E.2d 12 (1968);
Kentucky — Rigdon v. Rigdon, 465 S.W.2d 921 (Ky.1971);
Massachusetts — Sorensen v. Sorensen, 369 Mass. 250, 339 N.E.2d 907 (1975);
Michigan — Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972);
Minnesota — Silesky v. Kelman, 281 Minn. 431, 438-439, 161 N.W.2d 631 (1968);
New Hampshire — Briere v. Briere, 107 N.H. 432, 224 A.2d 588 (1966);
New Jersey — France v. A. P. A. Transport Corp., 56 N.J. 500, 267 A.2d 490 (1970);
New York — Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 (1969);
Nevada — Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974);
North Carolina — G.S.1979 Supp. 1-539.--21;
North Dakota — Nuelle v. Wells, 154 N.W.2d 364 (N.D.1967);
Pennsylvania — Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971);
Virginia — Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190 (1971);
West Virginia — Lee v. Comer, 224 S.E.2d 721 (W.Va.1976).
It should be noted that the states listed above have followed for many years the rule which we have adopted today. Yet there apparently has been no significant disruption in family relationships as grimly predicted by the prophets of doom....
We believe that the argument that parental immunity is necessary to preserve the tranquility and harmony of domestic life misconceives the facts of domestic life. The primary disruption to harmonious family relationships is not the lawsuit brought for damages after the injury but the injury itself, ....
We recognize a practical problem is that of possible collusion between parent and child aimed at securing an unjustified recovery from an insurance company. But the possibility of collusion exists to a certain extent in any case. Every day we depend on juries and trial judges to sift evidence in order to determine the facts and arrive at proper verdicts. Experience has shown that the courts are quite adequate for this task. In litigation between parent and child, judges and juries would naturally be mindful of the relationship and would be even more on the alert for improper conduct....
Our holding is limited to the factual circumstances of the case now before us — an automobile tort action brought by an un-emancipated minor child against a parent. Allowance of such an action does not undermine parental authority and discipline nor does it threaten to substitute judicial discretion for parental discretion in the care and rearing of minor children. We recognize that there may be parental exercises of discretion and authority which should be provided special protection in the court of law. Here we merely remove any barrier to the enforcement of liability between parent and child in an automobile accident case brought by an unemancipated minor against a parent. When confronted with other cases involving claimed parental immunity, we will at that time determine to what extent parental immunity or privilege should be recognized under the particular circumstances of the case then before us. Nocktonick, supra, 611 P.2d at 139-42.

If a statement of more definitive standards should be deemed necessary to prevent useless litigation in this area, we agree with the concurring opinion in Raisen, supra, that such prescriptive distinctions are indeed the proper prerogative of. the legislature.

The judgment appealed is accordingly reversed. The question is certified to the Supreme Court pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v) and (vi): WHETHER AN UNEMANCIPATED MINOR CHILD MAY MAINTAIN A NEGLIGENCE ACTION AGAINST HIS PARENT.

ERVIN and SHAW, JJ., concur.

      . In fact, Orefíce involved an action by the minor’s estate against a third person who owned the airplane jointly with the deceased minor’s father. The cause of action arose out of an airplane crash that resulted from the negligence of the father. Instead of denying the right to bring such an action, the Supreme Court held that the minor’s estate could bring suit against a co-owner of a dangerous instrumentality based upon the negligence of the minor’s parent.


author: CAMPBELL, Judge.

text:
    Charles D. FRAZIER, Appellant, v. Catherine K. FRAZIER, Appellee.
    No. 80-675.
    District Court of Appeal of Florida, Second District.
    March 18, 1981.

      Jack F. White, Jr., Clearwater, for appellant.
    Watson R. Sinden of McClure & Turville, St. Petersburg, for appellee.
   CAMPBELL, Judge.

Charles D. Frazier appeals from a final judgment of dissolution of marriage and advances four points for our consideration. The only meritorious point is directed to the provision of the final judgment that conditioned his future visitation rights with his minor children on his timely payment of child support.

During the course of the dissolution proceeding, appellant willfully refused to keep his child support payments current. Such conduct is reprehensible, and the trial court’s condition on visitation privileges was obviously directed to prevent such future conduct. However, on the authority of Acker v. Acker, 365 So.2d 180 (Fla. 4th DCA 1979); Hechler v. Hechler, 351 So.2d 1122 (Fla. 3d DCA 1977); Chaffin v. Grigsby, 293 So.2d 404 (Fla. 4th DCA 1974); and Howard v. Howard, 143 So.2d 502 (Fla. 3d DCA 1962), such conditioning of future visitation rights is improper.

We, therefore, reverse the final judgment in regard to the condition placed on appellant’s visitation rights and strike the stated condition, “as long as his child support is kept current.” This would not prevent the court from disallowing in the future specific visitation rights upon a showing of willful failure to pay child support. See Acker v. Acker, supra. The final judgment is. affirmed in all other respects,

BOARDMAN, Acting C. J., and GRIMES, **•> concur.


text:
    Ralph N. PILZ, Appellant, v. Lenora Lynn PILZ, Appellee.
    No. 80-1612.
    District Court of Appeal of Florida, Second District.
    March 20, 1981.
    Wayne O. Smith of Wallace, Smith & Finck, P.A., St. Petersburg, for appellant.
    James D. Beach, St. Petersburg, for ap-pellee.
   PER CURIAM.

Ralph N. Pilz appeals from an order of the trial court setting aside a final judgment of dissolution of marriage pursuant to a motion filed under Florida Rule of Civil Procedure 1.540(b). We reverse.

The appellee’s petition to set aside the final judgment was filed more than one year after its rendition. Under Florida Rule of Civil Procedure 1.540(b), the court did not have jurisdiction to entertain the motion. Appellee’s motion to set aside the judgment contained no allegations, nor did the trial court in its order make any findings that would constitute fraud upon the court so as to negate the one-year limitation of rule 1.540(b).

This cause is remanded for treatment consistent herewith.

SCHEB, C. J., and RYDER and CAMPBELL, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    NATIONAL LAKE DEVELOPMENTS, INC. and Harry Macksey, Appellants, v. LAKE TIPPECANOE OWNERS ASSOCIATION, INC., Appellee.
    No. 80-1640.
    District Court of Appeal of Florida, Second District.
    March 20, 1981.
    Daryl J. Brown, of Rosin, Abel, Band, Brown & Russell, Chartered, Sarasota, for appellants.
    Ezra J. Regen, Sarasota, and Joseph S. Paglino, Miami, for appellee.
   GRIMES, Acting Chief Judge.

Lake Tippecanoe Owners Association, Inc., filed a class action on behalf of the unit owners of Lake Tippecanoe Condominiums against National Lake Developments, Inc., and Harry Macksey seeking cancellation of a ninety-nine year recreation lease and compensatory and punitive damages. The defendants filed an answer to the complaint which contained twenty affirmative defenses. The sixth affirmative defense was that Lake Tippecanoe had no standing to bring the suit on behalf of those unit owners who were not original purchasers from National Lake Developments, Inc.

Lake Tippecanoe filed a motion to strike the affirmative defenses. The court subsequently entered an order striking thirteen of the affirmative defenses, including the sixth defense. The defendants then pursued an appeal in this court, and their brief attacked the trial court’s order with respect to all thirteen stricken defenses. However, on motion of the association, this court dismissed the appeal except as it related to the sixth defense on the ground that the striking of the other affirmative defenses did not provide a basis for an appeal. We must now determine whether we have jurisdiction to consider the order as it concerned the sixth defense.

The order appealed from is a nonfinal order. Thus, we have jurisdiction to consider it only if it is in one of the categories of nonfinal orders listed in Florida Rule of Appellate Procedure 9.130. A recent Fourth District Court of Appeal case, Kohl v. Bay Colony Club Condominium, Inc., 385 So.2d 1028 (Fla. 4th DCA 1980), holds that it is. But see American Heritage Institutional Securities, Inc. v. Price, 379 So.2d 420 (Fla. 5th DCA 1980). In Kohl, the defendants sought review of pretrial orders holding that a condominium association and owners of a condominium unit had standing to maintain a class action. The district court of appeal ruled that the orders were reviewable under rule 9.130(a)(3)(CXi) because they determined the trial court’s jurisdiction over the person, namely, the members of the class.

We are not inclined to follow the conclusion reached in Kohl. What the defendants were seeking here was a determination of whether the association could represent those unit owners who were not in privity with National Lake Developments, Inc. This involved an inquiry into who made up the proper class of plaintiffs as opposed to whether or not the court had jurisdiction over those plaintiffs. As used in rule 9.130, the term “jurisdiction of the person” refers to service of process or the applicability of the long arm statute to nonresidents. American Health Association v. Helprin, 357 So.2d 204 (Fla. 4th DCA 1978). The defendants in the present case have not raised such matters. Indeed, it would not even be their place to do so on behalf of the plaintiffs. The right to challenge jurisdiction has always been reserved to the person over whom the court is asserting jurisdiction.

This situation is somewhat analogous to what occurs upon the denial of a motion to dismiss for failure to state a cause of action. By denying the motion, the court refuses to relinquish its jurisdiction over the defendant, yet the essence of the ruling is not jurisdictional. Admittedly, an order which determines a class of plaintiffs has an incidental jurisdictional effect upon the members of the class. However, the issue decided is more nearly the question of who is a proper party. If for no other reason than it would create an opportunity for an interlocutory appeal in practically every class action, we do not believe that the drafters of the appellate rules contemplated that orders of this nature would be deemed as having determined jurisdiction of the person.

We hold that the court’s order striking appellants’ sixth affirmative defense is not a nonfinal order subject to review under Florida Rule of Appellate Procedure 9.130. Therefore, we dismiss this appeal without prejudice to defendants to raise the issues contained herein on appeal from the court’s final order in this case.

OTT and RYDER, JJ., concur.


author: BOARDMAN, Judge.

text:
    Robert JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 80-1882.
    District Court of Appeal of Florida, Second District.
    March 20, 1981.
    Robert E. Jagger, Public Defender, and Stephanie L. Willis, Asst. Public Defender, St. Petersburg, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for respondent.
   BOARDMAN, Judge.

Robert Johnson petitions for writ of common law certiorari to review the circuit court’s reversal of county court orders granting petitioner’s motion to dismiss, motion to suppress evidence, and motion to suppress statements made by petitioner. We grant the writ and quash the order and opinion of the circuit court.

Petitioner has previously been before this court on a charge arising from this episode. See State v. Johnson, 382 So.2d 866 (Fla. 2d DCA 1980).

The facts in this case are that on June 10, 1979, shortly after 2:00 a. m., Sergeant Bru-baker of the St. Petersburg Police Department was on routine patrol when he observed activity on the porch of petitioner’s duplex. The officer recognized the duplex as being the home of petitioner, whom Bru-baker had arrested several years earlier for a liquor law violation. Noting that it was after the time lawful liquor sales could be made in the city, the officer positioned himself behind the package store across the street from petitioner’s home to observe the activity at the duplex. From that position, the officer saw several different persons separately approach the house. Each person would knock on the door, enter, remain inside for several minutes, then leave carrying a brown paper bag. There were no lights on inside the house. After observing this activity, Brubaker positioned himself in the walkway running between petitioner’s duplex and the connected duplex. From there he watched two persons enter petitioner’s home and was able to see into the living room through a window with slightly parted curtains. He also overheard the ensuing conversation within. The persons who had just entered indicated they wanted two beers and asked how much; petitioner responded that it was eighty-five cents a can. When the two persons left petitioner’s home, Brubaker stopped them, confiscated the bag each was carrying and, after calling for another unit, went up onto petitioner’s porch and knocked on the front door. Petitioner came to the door, but remained inside behind the closed screen door. Brubaker informed petitioner he was under arrest for a liquor law violation, but petitioner refused to allow the officer into his home and walked back into the house. Brubaker then opened the screen door himself and entered the residence. Once inside, he attempted to arrest and take petitioner into custody, which action petitioner resisted. A struggle followed. Petitioner was ultimately taken into custody, and, incident to petitioner’s arrest, various pieces of evidence were taken from the house. Petitioner was also questioned about his liquor sales and made several statements regarding them. Petitioner was subsequently charged by information with selling an alcoholic beverage without a license, in violation of section 562.06, Florida Statutes (1979), and resisting a law enforcement officer without violence, in violation of section 843.02.

Section 562.45(1), the penalty statute covering a violation of section 562.06, classifies a violation of any provision of the Beverage Law, Chapter 562, for which no penalty has been specifically provided as a second-degree misdemeanor unless the offender has previously been convicted of a Beverage Law violation, in which case the violation is a third-degree felony. Petitioner had been convicted of a Beverage Law violation in 1976. However, the allegations of the information concerning the Beverage Law violation charged only a misdemeanor violation, and the information was properly filed in county court.

The county court granted petitioner’s motions to suppress evidence and statements and his motion to dismiss the charge of resisting an officer without violence. The trial court’s rationale was that the initial misdemeanor arrest of petitioner was unlawful. The circuit court sitting in its appellate capacity reversed, and this petition for writ of common law certiorari followed timely.

An officer is limited in making a warrantless arrest for a misdemeanor committed within his lawful presence by section 901.19(1), Florida Statutes (1979), entitled “Right of officer to break into building,” which provides:

If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

By the clear wording of the statute, the right of an officer to enter a building to make an arrest is limited to two situations: (1) where he holds an arrest warrant, regardless of the classification of the offense, and (2) where he has the power under section 901.15, Florida Statutes (1979) to make a warrantless arrest for a felony. Under state law, there is simply no authority given to a police officer to enter a building to effect a warrantless arrest for a misdemeanor. Rucker v. State, 302 So.2d 490 (Fla. 2d DCA 1974); Prather v. State, 182 So.2d 273 (Fla. 2d DCA 1966); see Benefield v. State, 160 So.2d 706 (Fla.1964). Furthermore, Benefield made it crystal clear that the limitations on an officer’s authority contained in section 901.19 are to be very strictly adhered to where the building to be entered is a person’s home.

The act of opening an unlocked screen door constitutes a “breaking” or entry within the meaning of section 901.19. Benefield, supra; Boynton v. State, 64 So.2d 536, 548 (Fla.1953).

Even assuming Sergeant Brubaker had probable cause to believe petitioner had committed a felony, in light of the recent decision of the Supreme Court of the United States in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), as a matter of federal constitutional law, there is no longer any viable distinction between making a warrantless felony arrest and a warrantless misdemeanor arrest when that arrest involves entry into a person’s home. The Court invalidated a New York statute which authorized police officers to enter a private residence without a warrant and by force, if necessary, to make a routine felony arrest, holding that the fourth amendment, made applicable to the states by the fourteenth amendment, prohibits such action. Since section 901.19, Florida Statutes (1979), suffers the same defect, the requirements of Payton must be applied to petitioner’s arrest here.

In reversing the order of the trial court in the instant case, the circuit court relied on section 901.22, Florida Statutes (1979), and Bey v. State, 355 So.2d 850 (Fla. 3d DCA 1978). In the Bey case, the defendant was charged with and convicted of resisting an officer with violence. His arrest on that charge was based on the following facts:

The records [sic] shows that the officer observed appellant driving in a reckless manner and followed him to the front yard of his home. The officer then approached appellant and asked to see his driver’s license. Appellant refused to produce the license and proceeded toward his home. The officer then stated to appellant that he was under arrest for reckless driving and ordered him to halt. Appellant acknowledged this statement by saying, “You can’t arrest me,” and then attempted to escape into his home. The officer immediately followed appellant onto the premises where the act of violence occurred.

Id. at 851. In affirming the conviction, the court concluded that the officer had effected a constructive arrest of the defendant in his front yard when he confronted the defendant there, told him of his intention to arrest him, which communication was acknowledged by the defendant, and had the present power to control the defendant. The officer’s act in following the defendant into his home was viewed as within the scope of authority given the officer under section 901.22 to retake an arrested person who has escaped. Here, however, petitioner was at all times within his home. Section 901.19 and the cases decided thereunder do not give an officer the power to exercise control over and arrest a person who is wholly within the confines of his home.

If an arrest is unlawful, then any search or seizure made incident thereto is invalid, and any evidence developed as a result thereof is inadmissible. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Moreover, since the arrest itself was unlawful, a prosecution for resisting arrest without violence under section 843.02 must also fail. Proof of the lawfulness of the arrest is an essential element of that offense. Lee v. State, 368 So.2d 395 (Fla. 3d DCA), cert. denied, 378 So.2d 349 (Fla.1979); Marshall v. State, 354 So.2d 107 (Fla. 2d DCA), cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978).

The county court’s rulings in the instant case were clearly correct, and the circuit court departed from the essential requirements of the law in reversing those rulings. Accordingly, we grant the writ of common law certiorari, quash the circuit court’s order and opinion, and remand with directions to reinstate the county court’s original orders.

SCHEB, C. J., and HOBSON, J., concur.


text:
    Idus TAYLOR a/k/a Ernest Taylor, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2162.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Reversed. Peyton v. State, 383 So.2d 737 (Fla. 3d DCA 1980); Curry v. State, 362 So.2d 36 (Fla. 3d DCA 1978).


text:
    Gernie HOLLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2050.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. State v. Johnson, 382 So.2d 765 (Fla.2d DCA 1980); § 90.803(2), Fla. Stat. (1979).

      . The excited utterance exception to the hearsay rule now codified in the Florida Evidence Code is a re-naming of a hearsay exception which was already part of Florida common law. See the Law Revision Council Note to section 90.803 for a history of the rule.


text:
    Claudette CANLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-157.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. See: Randolph v. State, 292 So.2d 374 (Fla. 3d DCA 1974); White v. State, 301 So.2d 464 (Fla. 1st DCA 1974); Adams v. State, 330 So.2d 505 (Fla. 1st DCA 1976).


text:
    T.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-168.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Bennett H. Brummer, Public Defender and Lawrence J. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Appellant, a juvenile, was charged in a delinquency petition with breach of the peace, battery of a law enforcement officer, and resisting arrest. Upon hearing appellant was adjudged delinquent, placed in a community control program under supervision of the Youth Services Program, ordered to pay restitution in a manner and amount to be determined by the counselor, attend counseling, and abide by a curfew.

In this appeal it is contended that the trial judge committed reversible error in ordering that the amount and manner of restitution be determined by the counselor. We find merit in appellant’s contention.

In E. Y. v. State, 390 So.2d 776 (Fla.3d DCA 1980), we held that it was reversible error for the trial court to delegate judicial authority to the juvenile’s counselor to determine the amount of restitution. For the reason stated, that portion of the order directing restitution in a manner and amount to be determined by the counselor is reversed. In all other respects the order appealed is affirmed.

Affirmed in part and reversed in part with directions to the court to afford appellant an evidentiary hearing as to the manner and amount of restitution to be paid to the victim.


author: SCHWARTZ, Judge.

text:
    WINN-DIXIE STORES, INC., a Florida Corporation, Appellant, v. Carmen JOHSTONEAUX and R. B. Johstoneaux, Appellees.
    No. 80-1092.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Vernis, Bowling, West, Montalto & Goodman and R. David Donlin, Miami, for appellant.
    Richard E. Doherty, Miami, for appellees.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

Mrs. Johstoneaux was robbed and seriously injured by an unknown assailant as she was entering a Winn-Dixie supermarket from the common parking lot of the shopping center where it was located in a “high crime” area of North Miami. She and her husband won a jury verdict and judgment against Winn-Dixie on the theory that it had breached the duty of reasonable care it owes its invitees by failing to provide a guard or other security to protect her from such criminal assaults. Because of the extensive evidence concerning the immediate past history of many similar occurrences in the vicinity, and thus of their future foreseeability, we reject Winn-Dix-ie’s contention that it was entitled to a directed verdict in its favor below. Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980); Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980); Pitts v. Metropolitan Dade County, 374 So.2d 996 (Fla. 3d DCA 1978).

Affirmed.

HENDRY, J., dissents.

      . There is no question of the defendant’s duty at the location where the injury took place. See, Shields v. Food Fair Stores of Florida, Inc., 106 So.2d 90 (Fla. 3d DCA 1958), cert. denied, 109 So.2d 168 (Fla. 1959).

      . It was described as such by a policeman who patrolled the locality.

      .Although the store had a guard on duty during the evening hours, the incident in question occurred at around 11:00 a. m. when none was present. It was clearly a jury question as to whether reasonable care required that the precautions sometimes taken, and thus impliedly acknowledged as necessary by the store, should have always been in effect. See, Marks v. Delcastillo, 386 So.2d 1259, 1263-64, n.8 (Fla. 3d DCA 1980), review den., 397 So.2d 778 (Fla. 1981); Holley v. Mt Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980).

      . We have not implied either in the cited cases or in this one that when criminal activity is foreseeable it is invariably a jury question as to whether the duty of reasonable care has been discharged. In the case of a mom-and-pop store with one or two employees, for example, it might be unreasonable as a matter of law to require that a full-time guard be posted. In contrast, however, the present defendant and situation, see note 3, supra, bring the case within the field of purely jury competence.


text:
    Elizabeth Jean Blackwell DAVIDSON, Appellant, v. Albert Milton DAVIDSON, Appellee.
    Nos. 80-1143, 80-1144.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Sibley, Giblin, Levenson & Glaser, Buch-binder & Elegant, George L. Onett, Miami Beach, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Bruce A. Christensen and James R. Gailey, Miami, for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Despite her claim that the amount was inadequate, there is no showing that the trial court abused its discretion in fixing the attorney’s fees awarded the appellant-wife. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Taplin v. Taplin, 386 So.2d 1199, 1200 (Fla. 3d DCA 1980); compare, March v. March, 395 So.2d 200 (Fla. 3d DCA 1981).

Affirmed.


text:
    BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, a political subdivision of the State of Florida, Appellant, v. OLIN CORPORATION, Appellee.
    No. 80-1178.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, and N. James Turner, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Thomas F. Martin and Michael A. Mullen, Miami, for appellee.

      Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. See, Board of County Commissioners of Dade County v. Eagle Family Discount Stores, Inc., 380 So.2d 486 (Fla. 3d DCA 1980).


text:
    Diane LESLIE, As Executrix of the Estate of Wilfred Desjadon, Appellant, v. FLORIDA WATER AND UTILITIES CO., Appellee.
    No. 80-1224.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Kanner, Brown & Lambert and Richard Kanner and Carl M. Lambert, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellee.
    Before HUBBART, C. J., and PEARSON, DANIEL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Goldberg v. Context Industries, Inc., 362 So.2d 974 (Fla.3d DCA 1978), cert. denied, 370 So.2d 459 (Fla.1979).


text:
    Sara ZUBER and Rebecca Atkins Smith, Appellants, v. Claude GLENN, Appellee.
    No. 80-1499.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Mary Jo Francis, Legal Services of Greater Miami, Inc., Miami, for appellants.
    No appearance, for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

The order below dismissing the cause for lack of prosecution is reversed because of the clearly-established existence of bona fide record activity of various kinds during the year prior to the dismissal. Musselman Steel Fabricators, Inc. v. Radziwon, 263 So.2d 221 (Fla.1972); Eastern Elevator, Inc. v. Page, 263 So.2d 218 (Fla.1972); Biscayne Construction Co. v. Metropolitan Dade County, 388 So.2d 329 (Fla. 3d DCA 1980); Harris v. Winn-Dixie Stores, Inc., 378 So.2d 90 (Fla. 1st DCA 1979); American Salvage and Jobbing Co., Inc. v. Salomon, 367 So.2d 716 (Fla. 3d DCA 1979); Fla.R.Civ.P. 1.420(e).


author: DANIEL S. PEARSON, Judge.

text:
    Jacquelyn Renee TOWN, Petitioner, v. Janet RENO, as State Attorney of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida, and the City of Miami Beach, a Florida municipal corp., Respondents.
    No. 80-1664.
    District Court of Appeal of Florida, Third District.
    March 24, 1981.
    Ferrell & Ferrell and Milton M. Ferrell, Jr.; Richard R. Booth, Miami, for petitioner.
    Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., John A. Ritter, City Atty. and Thomas M. Pflaum, Asst. City Atty., for respondents.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and WOODIE A. LILES (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

The City of Miami Beach sued to permanently enjoin Jacquelyn Town from using certain premises owned by her which the City alleged were being used in violation of zoning ordinances. During the pretrial discovery stage of this civil suit, the City served written interrogatories upon Town. Asserting her privilege against self-incrimination, Town refused to answer a number of these questions. The City moved to compel Town’s answers. The trial court ordered Town to answer based exclusively on the City’s proffer:

“... that it grants immunity to Defendant for violation of the City’s single-family zoning district regulations found in Section 6-1 of the Miami Beach Zoning Ordinance No. 1891, prohibiting more than three unrelated persons to inhabit the subject dwelling .. .. ”

Town petitioned this court , for a writ of certiorari, asserting that the trial court’s order departed from the essential requirements of the law. We issue the writ and quash the trial court’s order.

The power to compel testimony is not absolute. The most important exemption from the duty to give testimony is the Fifth Amendment privilege against compulsory self-incrimination. It is only when the immunity granted is coextensive with the scope of this privilege that an order compelling testimony is justified. See generally Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Where, as here, the court’s order, entered upon the City’s necessarily limited undertaking, falls far short of supplanting Town’s privilege not to incriminate herself and leaves Town open to having the compelled testimony used against her in connection with the prosecution of such offenses, apart from zoning violations, which may be revealed by her testimony, the order requiring her to testify cannot stand. Moreover, since the case below was not an “investigation, proceeding or trial for a violation of any of the criminal statutes of this state,” see Section 914.04, Florida Statutes (1979); State ex rel. D’Amato v. Morphonios, 358 So.2d 1119 (Fla.3d DCA 1978); approved and adopted, 381 So.2d 1355 (Fla.1980), the trial court’s order could not have the effect of extending the City’s undertaking and thus adequately protecting Town.

Accordingly, on the state of the record before us, the trial court was in error in compelling Town to answer the interrogatories. The writ of certiorari is granted and the order under review quashed.

      . Initially, the State of Florida, suing only to abate an alleged nuisance, was a co-plaintiff with the City. The nuisance which was sought to be abated by the State was that the premises were open to and frequented by people for the use, keeping and delivery of marijuana. It did not, however, for reasons not pertinent here, seek or move to compel discovery from Town, and, by its own admission, has no standing in the matter before us.

      . A temporary injunction granted by the trial court was affirmed by the Florida Supreme Court. See Town v. State ex rel. Reno, 377 So.2d 648 (Fla.1979).

      . The alleged violations were the use of the premises as a church and as a multiple family dwelling.

      . At an earlier stage, the City attempted to depose Town and was met with the same assertions. The City did not seek to compel Town’s answers to the questions posed at the deposition.

      . The City argues that the trial court’s order should be sustained on the ground that Town’s refusal to answer was not a good faith exercise of the privilege. We fully recognize that a witness “is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination.” Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). But while it is the court which must determine under all the circumstances whether the possibility of prosecution is imaginary or real and whether an answer would have any tendency to incriminate, or provide a link in the chain of evidence, State ex rel. Feldman v. Kelly, 76 So.2d 798 (Fla.1954); Lopez v. State, 349 So.2d 1198 (Fla.2d DCA 1977); Holmes v. State, 311 So.2d 780 (Fla.3d DCA 1975); Talavera v. State, 227 So.2d 493 (Fla.2d DCA 1969), the order under review was entered only because of the City’s purported grant of immunity, not because the trial court determined that Town’s exercise of the privilege was unfounded. That issue was not reached by the trial court and is not reached by us.

      . After the commencement of the proceedings in this court, the City received a letter from the State Attorney, which stated in pertinent part: “Pursuant to your request, and based solely on your request, this office will not prosecute Jacquelyn Town for Miami Beach single-family zoning violation if Ms. Town [answers the questions put to her].” While this letter obviously played no part in the trial court’s decision and is not properly a part of the record before us, we do note that the City’s efforts to have the State provide Town with the immunity from State criminal prosecution for zoning violations misses the mark. The privilege against seif-incrimination which Town enjoys is the privilege not to incriminate herself with respect to the violation of any criminal law, not just zoning violations.
      Abating a nuisance (or enjoining a zoning violation) is “a very different matter from prosecuting criminally those who commit felonious acts contributory to it.” Pompano Horse Club, Inc. v. State ex rel. Bryan, 93 Fla. 415, 111 So. 801 (Fla.1927).