text:
    EDWARD L. NEZELEK, INC., a New York corporation, Appellant, v. SUNBEAM TELEVISION CORPORATION, A Florida corporation, d/b/a WCKT-TV and Roger Burnham, an individual, and Mark Wolin an individual, Appellees.
    No. 81-5.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Rehearing Denied May 18, 1982.

      Richard L. Polin, Fort Lauderdale, for appellant.
    Dwight Sullivan, Miami, for appellees.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

Edward L. Nezelek, Inc., appeals from a final judgment entered against it for failure to file an amended complaint contending that the complaint was improperly dismissed for failure to state a cause of action and the trial court erred in entering an order of final judgment without notice to plaintiff of the hearing on the motion. We reverse.

Nezelek sued Sunbeam Television Corporation, Roger Burnham and Mark Wolin, appellees, alleging that it had been libeled in a television newscast critical of appellant’s performance as general contractor of a new United States customs facility at the Miami International Airport. On March 6, 1980, the trial court granted the motion of defendants/appellees to dismiss with prejudice all causes of action for defamation arising out of the July 31, 1979 broadcast, except “those causes of action based on five quoted statements” in a letter sent to ap-pellees on August 9,1979 demanding retraction. The court also granted defendants/appellees’ motion to dismiss for failure to state a cause of action and gave plaintiff twenty days from the date of that order to file an amended complaint. After Nezelek failed to file an amended complaint within the twenty-day period, appellees moved the court, ex parte, for entry of final judgment for failure to file an amended complaint “within the time allowed by ... Court order ... or at any time.” On April 7, 1980, the court granted final judgment for appel-lees with respect to the five statements quoted in the letter of August 9, 1979. Nezelek’s motion for rehearing on the final judgment was denied.

I

Notice

As the first point on appeal, Nezelek argues that appellees have no procedural basis for proceeding ex parte before the trial court in order to obtain a final judgment and that it is entitled to notice and hearing on defendant’s motion for entry of final judgment. We agree.

In this case the pertinent language in the order of dismissal reads:

FURTHER ORDERED that the Defendant’s Motion to Dismiss for failure to state a cause of action is granted and the Plaintiff shall have twenty (20) days from the date of this Order in which to file and serve an Amended Complaint; .. .

The motion for final judgment and the final judgment state as the sole basis for judgment the fact that Nezelek failed to file an amended complaint within the time ordered by the court. The motion for entry of final judgment should have been, in our view, treated as a motion for involuntary dismissal, pursuant to Florida Rule of Civil Procedure 1.420(b) (1979). Involuntary dismissal is the defending party’s remedy for failure of a party seeking affirmative relief to further plead. H. Trawick, Jr., Trawick’s Florida Practice and Procedures § 21-5 (1981 ed.), at p. 288.

Rule 1.420(b) requires that “notice of hearing on the motion shall be served as required under Rule 1.190(d)” and that:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or lack of an indispensable party, operates as an adjudication on the merits.

We recognize that under Florida law if notice has been given to a plaintiff as required by Rule 1.420(b), the trial court has the authority to dismiss with prejudice the complaint of that party for failure to timely amend. See, e.g., E & E Electric Contractors, Inc. v. Singer, 236 So.2d 195 (Fla. 3d DCA 1970), cert. dismissed, 239 So.2d 827 (Fla.1970) (not addressing issue but implying that plaintiffs had separate notice of motion for final judgment and dismissal with prejudice); Clifford Ragsdale, Inc. v. Morganti, Inc., supra at n.2, (plaintiffs filed motion in opposition to motion for final judgment dismissing complaint with prejudice).

Appellees argue that Nezelek had notice as required by Florida Rule of Civil Procedure 1.420(b) because the March 6, 1981 order served as notice that failure to amend within twenty days would automatically result in dismissal with prejudice, or, alternatively, that the final judgment was itself sufficient notice since upon rehearing Neze-lek could present his defense against dismissal with prejudice. In support of the argument it is contended that we should apply the logic of the court in Capers v. Lee, 91 So.2d 337 (Fla.1956) and find that Nezelek is not entitled to separate notice on the motion for entry of final judgment for failure to comply with a court order since Nezelek must have known at the time of the March 6, 1981 order — though that order did not specify — that failure to amend would result in dismissal with prejudice and not merely in dismissal. We reject this logic for the following reasons. We find Capers v. Lee, supra, inapplicable to this case as Capers, supra, was decided before the amendment to Florida Rule of Civil Procedure 1.420(b) requiring express notice of a motion to dismiss for failure to comply with a rule of civil procedure or court order. Cf. 31 Fla.Stat.Anno. 14; Author’s Comment, Fla.R.Civ.P. 1.500, “The court is required to enter such a default after notice and thus the new rule overrules Capers v. Lee, 91 So.2d 337.”

An order dismissing a claim for failure to state a cause of action with leave to amend is not an order of court to amend. It is permission to do that which without the court’s permission would not be allowable. Failure to amend after being given leave to amend is not disobedience of a court order, but is merely a continuing failure to state a cause of action. Hancock v. Piper, 186 So.2d 489 (Fla.1966). See, e.g., cases interpreting Federal Rule of Civil Procedure 41(b): Johnson v. Boyd-Richardson Co., 650 F.2d 147 (8th Cir. 1981); Trujillo v. Colorado, 649 F.2d 823 (10th Cir. 1981); Mann v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 488 F.2d 75 (5th Cir. 1973). See also State ex rel. Gamble Construction Co., Inc. v. Enright, 556 S.W.2d 726, 728 (Mo.App.1977); Black’s Law Dictionary 801 (5th ed. rev. 1979). The consequences are the same, however, whether the motion for involuntary dismissal with prejudice is based on a continuing failure to state a cause of action under Rule 1.140(b)(6) after having been granted twenty days to do so, or based on failure to comply with an order of the court. The vehicle for the relief is still Rule 1.420(b) and a party moving for dismissal pursuant to its provision is required to serve notice of hearing under Rule 1.090(d).

Nor will an order of dismissal with leave to amend, without more, serve as notice of a motion to dismiss with prejudice in the event of failure to amend. See, e.g., Hancock v. Piper, 175 So.2d 207 (Fla. 2d DCA 1965), cert. discharged, 186 So.2d 489 (Fla.1966). See also Johnson v. Boyd-Richardson Co., supra; Trujillo v. Colorado, supra; Mann v. Merrill Lynch, Pierce, Fenner and Smith, Inc., supra. This is distinguished from the situation where an order of dismissal with leave to amend expressly provides that failure to amend will result in dismissal with prejudice. See National Shawmut Bank of Boston v. Woodard, 220 So.2d 636 (Fla. 3d DCA 1969), cert. denied, 225 So.2d 917 (Fla.1969); Stevens v. Metropolitan, Dade County, 164 So.2d 273 (Fla. 3d DCA 1964).

Second, a holding that opportunity for argument on a motion for rehearing is sufficient to protect a plaintiff’s right to notice under the Florida Rules of Civil Procedure 1.420(b), not only directly conflicts with the express pre-hearing notice requirement of Rule 1.420(b), but prevents the plaintiff from exercising other procedural rights provided by Florida Rules. For example, after entry of final judgment a plaintiff cannot take a voluntary dismissal pursuant to Florida Rules of Civil Procedure 1.420(a)—a dismissal which is without prejudice unless otherwise stated in the notice or stipulation. Florida law, however, requires that a plaintiff be given the opportunity to exercise his right to voluntarily dismiss the action after the court has dismissed the complaint with leave to amend if no further order has been entered prior to entry of final judgment. Hibbard v. State Road Department of Florida, 225 So.2d 901 (Fla.1969); Heinz Paving & Asphalt Company, Inc. v. United States Fidelity & Guaranty Company, 360 So.2d 29 (Fla. 4th DCA 1978). Ex parte motions are generally disfavored by the Florida Rules of Civil Procedure, see, e.g., Fla.R.Civ.P. 1.420, 1.090(d), 1.500(b), and case law, see, e.g., Hilton v. Fiorio, 317 So.2d 83 (Fla. 3d DCA 1975) (motion to dismiss may not be entertained by court ex parte); Barr v. Ehrlich, 301 So.2d 147 (Fla. 4th DCA 1974) (ethical considerations forbid ex parte applications to judge where dismissal is in issue); Polland v. Visual Graphics, Corp., 240 So.2d 835 (Fla. 3d DCA 1970) (entry of order on motion to dismiss error where failure to comply with notice rule).

We hold, therefore, that once a court has dismissed a complaint for failure to state a cause of action, but has granted the party leave to amend, that complaint may subsequently be dismissed with prejudice only if one of two notice conditions are met, (1) separate notice to plaintiff of hearing on the motion for dismissal with prejudice or entry of final judgment, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure to amend within the stated time, the cause will be dismissed without further notice. See National Shawmut Bank of Boston, supra. See, e.g., Churruca v. Miami Jai-Alai, Inc., 271 So.2d 818 (Fla. 3d DCA 1973) (order requiring plaintiff to file sworn answers within fifteen days provided that “complaint of plaintiff will be and is hereby dismissed simultaneously default of this order”). Only such express notice will satisfy the notice requirement of Rule 1.420(b).

II

The Complaint

Nezelek next claims that the trial court erred in its order of March 6,1980 dismissing the complaint for failure to state a cause of action. Though we reverse on the first point, we believe it necessary to discuss the following points for guidance of the trial court on remand. We consider only three of the issues briefed and argued by the parties as the bases for dismissal, Le., (1) whether the complaint failed to state a cause of action because it did not contain a verbatim reproduction of the alleged defamatory statements, (2) whether the complaint failed to state a cause of action because it did not allege that Nezelek complied with the statutory requirement that it make a written demand for retraction as a pre-condition for suit, and (3) whether the court erred in dismissing with prejudice certain statements in the complaint because they were not identical to the statements in the demand for retraction.

The general rule in Florida is that allegedly defamatory words should be set out in the complaint for the purpose of fixing the character of the alleged libelous publication as being libel as per se. Cooper v. Miami Herald Publishing Co., 159 Fla. 296, 31 So.2d 382 (1947). That a plaintiff “set out” allegedly defamatory words, does not necessarily require that the statements be set out verbatim. This is particularly true where the statements may not easily be retained because they were made orally either in conversation or by radio or television broadcast. For cases in other jurisdictions rejecting the verbatim rule when the allegedly defamatory statements are oral, see, e.g., Okun v. Superior Court of Los Angeles County, 29 Cal.3d 442, 175 Cal.Rptr. 157, 629 P.2d 1369 (1981); Hollowell v. Career Decisions, Inc., 100 Mich.App. 561, 298 N.W.2d 915 (1980); Pursell v. Wolverine-Pentronix, Inc., 44 Mich.App. 416, 205 N.W.2d 504 (1973); Stutts v. Duke Power Co., 47 N.C. 76, 266 S.E.2d 861 (1980); Itri v. Lewis, 281 Pa.Super. 521, 422 A.2d 591 (1980). Accordingly, we hold that when the cause of action for defamation is based on oral statements, it is sufficient that the plaintiff set out the substance of the spoken words with sufficient particularity to enable the court to determine whether the publication was defamatory. We find error if Nezelek’s complaint was dismissed for failure to set out verbatim the allegedly defamatory statements. We do not decide whether Nezelek’s complaint sufficiently sets out the substance of the alleged defamatory spoken words as there is no indication that this issue was considered.

If the complaint was dismissed for failure to state a cause of action because Nezelek did not allege compliance with Section 770.01, we find no error. Though the demand letter became part of the record when attached to plaintiff’s motion to strike part of appellees’ motion to dismiss, the letter was neither incorporated into nor attached to the complaint. In Ross v. Gore, 48 So.2d 412 (Fla.1950) the supreme court held that compliance with the -demand for retraction of Section 770.01, is a condition precedent to suit. The rule in Florida is that compliance with conditions precedent must be at least generally averred in the pleadings in order to state a cause of action. See, e.g., Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979); San Marco Contracting Company v. State, Department of Transportation, 386 So.2d 615 (Fla. 1st DCA 1980); Corbo v. Miami Daily News, Inc., 371 So.2d 1066 (Fla. 3d DCA 1979); Fla.R.Civ.P. 1.120(c). Neze-lek’s response to appellees’ motion to strike the pleadings indicates compliance with Section 770.01, however, no showing or averment of compliance was made in a pleading. Fla.R.Civ.P. 1.120(c). Motions are not pleadings. See, e.g., White v. Fletcher, 90 So.2d 129 (Fla.1956); Raulerson v. Hamm, 394 So.2d 1144 (Fla. 4th DCA 1981); Fla.R.Civ.P. 1.110. See also H. Trawick, supra, § 6-1. The complaint was technically deficient. See Corbo v. Miami Daily News, Inc., supra. The trial court, being limited to the four corners of a complaint in considering the motion to dismiss for failure to state a cause of action, Kaufman v. A-1 Bus Lines, Inc., 363 So.2d 61 (Fla. 3d DCA 1978), was compelled to dismiss the complaint.

The trial court erred, however, in dismissing with prejudice all causes of action which it deemed not supported by quoted statements contained in the demand for retraction. Because the complaint was dismissed with leave to amend as to the five quoted statements in the demand letter of August 9, 1979 and because there is no indication in the record to the contrary, we must assume that the demand notice itself was determined to be in compliance with Section 770.01. If the complaint either presently states, or upon amendment is likely to state a cause of action for defamation, and a demand for retraction was made, then it is error to dismiss with prejudice those statements in an original complaint which constitute the defamation simply because the statements are not identical to the statements in the demand notice. Applying the principle of liberality of pleadings, see Goldcoast Crane Co., Inc. v. Watier, 257 So.2d 249 (Fla.1971); Ranger Insurance Co. v. Travelers Indemnity Co., 389 So.2d 272 (Fla. 1st DCA 1980), and acknowledging our duty to protect the right of an individual to seek redress in the court for defamation, Layne v. Tribune Co., 108 Fla. 177, 146 So. 234 (1933); Fla.Const. Art. I, § 21, a plaintiff who appears to have a cause of action for defamation should be permitted at least one opportunity to amend his complaint and demand notice to include, if he can, all alleged grounds for the cause of action. This may be particularly important where the publication was by means of broadcast and the plaintiff does not have the printed statements available at the time of the original demand for retraction. Cf. Hevey v. News-Journal Corp., 148 So.2d 543 (Fla. 1st DCA 1963) (holding that where compliance was alleged and the complaint stated a cause of action for libel per se, but that notice was insufficient because it did not specifically identify the article, the complaint was susceptible to further pleading by way of amendment to effectuate the court’s conclusion). We recede, therefore, from this court’s holding in Hulander v. Sunbeam Television Corp., 364 So.2d 845 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 459 (Fla.1979) to the extent that Hulander, supra, may bar a single amendment of a demand for retraction made pursuant to Section 770.01 after the filing of complaint. It was error to dismiss the cause of action with prejudice as to those statements not contained in the August 9, 1979 letter.

Reversed and remanded for further proceedings consistent with this opinion.

      . A motion for default, Fla.R.Civ.P. 1.500, is available only to a party seeking affirmative relief. This case does not involve failure to make discovery permitting the sanction of striking of pleadings, Fla.R.Civ.P. 1.380(b). The motion does not fall under Fla.R.Civ.P. 1.140(c) because the pleadings cannot be considered closed for purposes of this rule. The pleadings having once been dismissed without prejudice for failure to state a cause of action, we consider the motion for entry of final judgment a motion for involuntary dismissal pursuant to Rule 1.420(b), for failure to state a cause of action under Ride 1.140(b)(6) within twenty days.

      . Whether dismissal for failure to properly plead is with or without prejudice depends upon the time the order was entered. Before September 30, 1962 or after January 1, 1966 a dismissal for want of proper pleadings is with prejudice unless the order otherwise states. H. Trawick, supra, at p. 289. Compare Hardee v. Gordon Thompson Chevrolet, Inc., 154 So.2d 174 (Fla. 1st DCA 1963) with Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So.2d 1321 (Fla. 4th DCA 1978), cert. denied, 362 So.2d 1051 (Fla. 1978).

      .The issue of notice was not addressed in the following cases and it is impossible to tell from the opinions whether plaintiffs were, in fact, given a separate notice of the motion for dismissal with prejudice. Singh v. Tolz, 380 So.2d 1326 (Fla. 4th DCA 1980) (Rule 1.540(b)); Brook v. Protean Investors, Inc., 373 So.2d 440 (Fla. 3d DCA 1979); Miami Auto Auction, Inc. v. Friendly Enterprises, Inc., 257 So.2d 69 (Fla. 3d DCA 1972); Reynolds v. Deep South Sports, Inc., 211 So.2d 37 (Fla. 2d DCA 1968).
      We consider as incorrectly decided those cases which either expressly or implicitly uphold an order of dismissal with prejudice absent express notice to the plaintiff. See Lasley v. Cushing, 244 So.2d 770 (Fla. 1st DCA 1971).

      . After a responsive pleading is served a party may amend his pleading only with leave of court, which leave shall be given freely where justice so requires. Fla.R.Civ.P. 1.190(a).

      . We rejected appellees’ argument that this court has no jurisdiction to hear certain points on appeal because Nezelek failed to file a timely notice of appeal from the March 6, 1980 order. See, e.g., Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974) adhering to rule rejecting piecemeal appeal where claims are legally interrelated and in substance involve the same transaction.
      The order of March 6, 1980 is not an appeala-ble order as it merely grants a motion to dismiss, see, Cassidy v. Ice Queen International, Inc., 390 So.2d 465 (Fla. 3d DCA 1980); Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); Donnell v. International Fire & Casualty Co., 378 So.2d 1344 (Fla. 3d DCA 1980). However, Rule 9.130(g), Florida Rules of Appellate Procedure authorizes this court to review initially non-final orders where we are called upon to review the final order terminating litigation in a case.

      . Though the trial court stated in its order of March 6, 1980 that the matter was before the court on the defendant’s motion to dismiss with prejudice for failure to comply with Section 770.01, Florida Statutes and failure to allege a cause of action for libel, the court did not specify the bases for its order and dismissal could have been for any one of several grounds raised by the defendant. We decline to discuss the other issues raised by the motion to dismiss, i.e., whether the appellant is a public figure, whether actual malice must be pleaded, and whether punitive damages may be awarded in an action for libel and slander.

        . Though Section 770.01, Florida Statutes (1979) has been held constitutional, Ross v. Gore, supra, at least one jurisdiction has determined a similar statute to be unconstitutional. See Madison v. Yunker, 589 P.2d 126 (Mont. 1978). Other jurisdictions have not yet extended statutes requiring that plaintiff make a demand for retraction as a pre-condition to suit to radio or television broadcasts, see Hucko v. Jos. Schiltz Brewing Co., 100 Wis.2d 372, 302 N.W.2d 68 (Wis.App.1981), or have made a demand for retraction a condition precedent only to the seeking of exemplary damages and not to bringing the suit, see Pridonoff v. Balokovich, 36 Cal.2d 788, 228 P.2d 6 (1951) (en banc) (Cal.Civil Code § 48a recovery of special damages even though no correction has been demanded or refused); Kindley v. Privette, 241 N.C. 140, 84 S.E.2d 660 (1954) (N.C. statute dealing with notice of alleged defamatory statement as pre-condition to stating a cause of action so as to afford defendant an opportunity for retraction, relates solely to punitive damages and has no bearing on sufficiency of facts alleged to constitute cause of action).

      . Under Florida law a plaintiff is limited to a single cause of action in which to recover damages suffered through defamation by the media. §§ 770.05, 770.08, Florida Statutes (1979), Perdue v. Miami Herald Publishing Co., 291 So.2d 604 (Fla.1974).

      . The cases cited as authority by the court in Hulander, supra, generally support the policy of liberal amendment of pleadings and are not authority for denying a plaintiff the opportunity to amend his demand notice in order to comply with Section 770.01, if he otherwise is able to state a cause of action. In Cooper v. Miami Herald Publishing Co., 159 Fla. 296, 31 So.2d 382 (1947), the supreme court dismissed the amended complaint not because the notice for retraction was insufficient, but because the amended complaint failed to state a cause of action for defamation. In Adams v. News-Journal, Corp., 84 So.2d 549 (FIa.1955) the single issue was whether the trial court correctly dismissed a claim of libel on finding that a newspaper editorial was not actionable per se. The supreme court found that the cause was not actionable per se and held that the trial court had properly dismissed the action for failing to state a cause of action.
      In Hevey v. News-Journal Corporation, 148 So.2d 543 (Fla. 1st DCA 1963), the court stated even though the notice was insufficient for failure to specifically identify the article, the complaint was susceptible to further pleading by way of amendment, as necessary to achieve the conclusion of the court.

        Gannett Florida Corporation v. Montesano, 308 So.2d 599 (Fla. 1st DCA 1975), cert. denied, 317 So.2d 78 (Fla.1975) was an appeal from a final judgment entered pursuant to a jury verdict in a libel action. The plaintiff had sent a written demand of retraction and the defendant had responded to that demand by declining to publish a retraction. The appellate court directed that the jury verdict be overturned and a judgment entered in favor of the defendant because the notice which had been attached to the complaint failed to specify the statements in the alleged libelous article.
      In Orlando Sports Stadium v. Sentinel Star Co., 316 So.2d 607 (Fla. 4th DCA 1975), the plaintiff had, in fact, filed the demand letter subsequent to the filing of his initial complaint. The court dismissed with prejudice only after the complaint had been amended at least five times.
      In Anderson v. Hearst Publishing Co., 120 F.Supp. 850 (S.D.Cal.1954) also cited by the court in Hulander, supra, the California court construed Section 48a of the California Civil Code which has since been amended to include broadcasts. Unlike the Florida statute, the California statute as stated by the court in Anderson, supra, makes a demand for retraction a condition precedent only when the plaintiff is seeking general or exemplary damages. Under the California statute a demand for retraction is not a condition precedent to sue for special damages as defined by the California Code to include “damages which the plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession, or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel and no other.... See footnote 7, supra.


source: Caselaw Access Project

author: DAUKSCH, Chief Judge.

license: Public Domain

text:
    In re ESTATE OF James H. DUMAS, Deceased. Daisy DUMAS, Appellant, v. Emily SANFORD and Jackie Sanford, Appellees.
    No. 81-475.
    District Court of Appeal of Florida, Fifth District.
    March 17, 1982.
    Rehearing Denied April 27, 1982.
    William H. Stone, Clermont, and Lester A. Lewis of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for appellant.
    C. Allen Watts, Deland, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from an order revoking letters of administration and granting probate of a lost will.

James H. Dumas died, leaving his wife Daisy. Sometime before his death, and before his marriage to Daisy, the decedent had purportedly made a will naming appel-lees as beneficiaries. The appellees are not lineal descendants of the decedent and are not legally related to the decedent. Appel-lee Emily Sanford is a daughter of a previous spouse of the decedent and appellee Jackie Sanford is her child.

The appellees were permitted by the trial court to show they had been provided for in a will of the decedent by introducing into evidence a copy of a will. The will had been executed before the marriage between the decedent and Daisy and the trial judge held it to be the “last will” of the decedent. There was conflicting evidence as to whether the decedent still intended to provide for the appellees subsequent to his marriage to Daisy Dumas. However, the conflicting evidence as to the decedent’s intentions is irrelevant because the statutory law is clear on the subject and controlling in this case.

The applicable statute is section 732.301, Florida Statutes (1981), and it provides that a person who makes a will and then marries a person not provided for in the will is presumed to have meant to leave that spouse an intestate share in his estate. The statute has some limited exceptions, none of which are applicable here based on the proof submitted to the trial court. The statute is called the Pretermitted Spouse statute and reads as follows:

When a person marries after making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate, unless:
(1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;
(2) The spouse is provided for in the will; or
(3) The will discloses an intention not to make provision for the spouse.
The share of the estate that is assigned to the pretermitted spouse shall be obtained in accordance with section 733.805.

Because the decedent in the instant case died leaving no lineal descendants and was survived by his wife, the appellees are not entitled to share in his estate, regardless of the will. A pretermit-ted spouse receives the entire estate where no lineal descendants survive the decedent. Hoffman v. Kohns, 385 So.2d 1064, 1069 (Fla. 2d DCA 1980). Section 732.102, Florida Statutes (1981) says:

(1) The intestate share of the surviving spouse is:
(a) If there is no surviving lineal descendant of the decedent, the entire intestate estate.

When section 732.301, Pretermitted spouse, and section 732.102, Share of spouse> are read together there is no getting around it — the widow takes the entire intestate estate when no lineal descendant survives the decedent.

The trial court erred in its determination “Upon the peculiar facts of this case, the court construes the statutes to permit the petitioners (appellees) an opportunity to present evidence in rebuttal to the statutory presumption in favor of a pretermitted spouse.” That statute does not raise a mere presumption, it is absolute; not subject to rebuttal, and no exception should be extended to include a class not clearly comprehended by the statute. See Estate of Ganier, 402 So.2d 418 (Fla. 5th DCA 1981).

The order is reversed and this cause remanded for further proceedings consistent with this decision.

REVERSED AND REMANDED.

COBB and SHARP, JJ., concur.


author: ERVIN, Judge.

text:
    STATE of Florida, Appellant, v. Bruce Anthony SLIFER, Appellee.
    No. AD-126.
    District Court of Appeal of Florida, First District.
    March 18, 1982.
    Rehearing Denied May 13, 1982.

      Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., for appellant.
    Larry G. Turner, Gainesville, for appellee.
   ERVIN, Judge.

The state has brought a timely appeal from a non-final order granting defendant’s motion to suppress certain admissions and other statements made while in custody, on the basis that his detention was not justified by probable cause. We disagree with the trial court and hold that the defendant’s detention was lawful, and, accordingly, reverse and remand for proceedings consistent with this opinion.

On August 6, 1980, the Department of Corrections’ (DOC) guards, assisted by deputies of the Columbia County Sheriff’s Office, tracked an escaped prisoner to the area of the Santa Pe River and Interstate 75 at the Columbia County-Alachua County line. The search party heard gunshots ahead of them and thought that the escapee was attempting to swim the river. The DOC officers crossed the river to the Alachua County side in an attempt to pick up the escapee’s tracks. The deputies remained on the Columbia County side of the river. The DOC search party maintained radio contact with their DOC supervisor, Lieutenant God-win, who was located on Interstate 75. One of the guards testified that he thought the Columbia County law enforcement officers were with Godwin when the guards crossed over into Alachua County, however, he was uncertain whether the Columbia County deputies remained with Lieutenant Godwin after that time.

Upon crossing the river, the guards climbed a fence and confronted the appel-lee, Slifer, who had in his possession a shotgun and was accompanied by several dogs. The appellee immediately ordered the guards off his property. They in turn informed him that they were searching for a dangerous escapee and asked him to move aside. The appellee complied, but when he attempted to follow them, the guards asked him to return to the interstate highway, and to remain there until he was escorted to his home by other officers whom they intended to contact by radio. The appellee at first refused this request, but finally cooperated with reluctance.

The DOC search party pursued the trail along the river bank through a heavily wooded area, and eventually came upon a house trailer. At that point they decided they were tracking the wrong person and resolved to cut behind the mobile home and return to the river. While so doing, they discovered a marijuana field growing next to the trailer. Their find caused them to notify their superintendent immediately. The guard making the call later testified that he advised the superintendent “they [the law enforcement officers at the interstate] might better hold him [the appellee] too, because the way the dogs went, and we [the DOC guards] assumed that it was his [the appellee’s] footprints and led right up — we assumed — his [the appellee’s] place.” The appellee was then handcuffed and placed into the back of a Columbia County deputy’s car.

The testimony at the motion hearing did not reveal specifically how, when, where or why the appellee came into the custody of the Columbia County Sheriff’s Department. However, the affidavit in support of the search warrant states that the DOC guards notified the Columbia County Sheriff’s office by portable radio of their findings. The Columbia County Sheriff’s Department next transferred custody of the appellee to the Alachua County Sheriff’s Department, and the Alachua County deputies returned the appellee to his trailer. At that time a number of law enforcement officers were converging around the appellee’s trailer. One officer later testified that the scene was somewhat confusing in that two criminal episodes appeared to be transpiring at the same time.

While in the custody of the Alachua County deputies, outside his trailer, the ap-pellee was provided Miranda warnings, questioned, and admitted his possession or control of the trailer and his ownership of the adjacent property on which the marijuana was found. Those statements were the subject of the suppression hearing. The record also establishes that following the admissions, the Alachua County deputies suspected that the escapee may have been in appellee’s trailer. Therefore, for a short period of time the officers surrounded the trailer and attempted to summon the escapee by using a bull horn. The escapee was not found in the trailer, but was apprehended at a different location several months later.

In finding that the law enforcement officers did not have probable cause, or even an “articulable suspicion” to detain the appel-lee, the court noted that omissions in the record raised the following questions:

(1) Did the corrections officers broadcast a description of the man they saw in the woods to their supervisor and, if so, what was that description?
(2) Did the Defendant match that description?
(3) The .. . interval between [the time] the man [was seen] in the woods and the [time] Defendant [was] taken into custody.
(4) Was the Defendant accompanied by dogs when seen by the Columbia County Sheriff’s deputies?
(5) Was the Defendant carrying a firearm?
(6) What information, if any, and in what manner, was information about the field of cannabis and a man in the woods given to the Columbia County Sheriff’s officers? (The record indicates that the Columbia County Sheriff’s Office did not have direct radio contact with the corrections officers in the woods.)
(7) Who was the Columbia County law enforcement officer that took the Defendant into custody?
(8) For what offense was the Defendant taken into custody? ....
(9)Was the Defendant initially taken into custody by Columbia County Sheriff’s Office or was he taken into custody by some other law enforcement agency and then transferred to their custody?

We consider that what the trial court required from the record goes beyond the minimal standards needed to establish probable cause. The Columbia County deputies had probable cause to arrest the appel-lee based upon the information received by them either directly from the corrections officers or from the DOC supervisor relating to a marijuana field located in an area immediately adjacent to appellee’s trailer. Their information was necessarily based on hearsay; thus the two-pronged test establishing the trustworthiness of hearsay required by Aguilar-Spinelli is applicable. The state must first show the basis of the informant’s knowledge that the drugs were where he said they were. See Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1513-14, 12 L.Ed.2d 723 (1964). This prong is easily satisfied. Clearly, the information sprang from the informant’s personal observations of growing marijuana on property where he had a legal right to be at the time of his observations. The state must next show that the informant “was ‘credible’ or his information ‘reliable’.” Id. at 114-115, 84 S.Ct. at 1513-14. Again, the second prong is clearly established by the evidence. The informant was not unknown; he was identified, and as such was available to testify, as he did. The informant, in fact, was an integral part of the investigation; thus the deputies’ corroboration of the information was in fact “ ‘a co-ordinant and intrinsic part of the informer’s operation.’ ” See Barfield v. State, 396 So.2d 793, 797 (Fla. 1st DCA 1981) (quoting from State v. Gamage, 340 A.2d 1, 16 (Me.1975)).

Additionally, the Columbia County officers had probable cause to believe, based on the information which they had received, that the appellee may have been an accomplice to an escape. We base this conclusion on several factors: (1) The DOC officers were lawfully on the appellee’s land because of hot pursuit, cf., State v. Parker, 399 So.2d 24 (Fla. 3d DCA 1981); (2) the appellee greeted the DOC officers with a gun and was reluctant to allow the officers on his land, and (3) the DOC officers, with the aid of dogs, followed the trail to the appellee’s mobile home.

The order granting the motion to suppress is reversed and the case is remanded for further consistent proceedings.

McCORD & SHAW, JJ., concur.


author: GRIMES, Judge.

text:
    Maxwell and Reva DAUER, as trustees, Appellants, v. James J. PICHOWSKI, Sr., Ron Martino, and Sam C. Martino, Appellees/Intervenors.
    No. 81-83.
    District Court of Appeal of Florida, Second District.
    March 19, 1982.
    Rehearing Denied April 26, 1982.
    S. W. Moore of Brigham, Reynolds, Byrne, Moore, Muir & Gaylord, Sarasota, for appellants.
    Anthony T. Martino of Peavyhouse, Gig-lio, Grant, Clark, Charlton & Opp, Tampa, for appellees/intervenors.
   GRIMES, Judge.

This is an appeal from the award of a brokerage commission.

In 1954 and 1955 James Pichowski, a resident of Miami, and others purchased a large tract of property on the Hillsborough River adjacent to Fletcher Avenue. The following year, all but 114 acres of this property was sold to Ben Cosor and others. In 1971, the Cosor group resold their property, consisting of approximately 660 acres, to a group of investors including the present landowner, Dr. Maxwell Dauer. Mr. Pi-chowski obtained a commission for his services as the broker handling the transaction for the seller. In 1975, Dr. and Mrs. Dauer acquired controlling interest in the property from their associates. On December 5, 1975, Piehowski asked brokers Ron Martino and Sam Martino of Tampa to assist him in the sale of his 114 acres. Realizing that Hillsborough County was interested in creating a regional park, Ron Martino showed the Piehowski property to Edward Radice, the county director of parks and recreation, in early 1976. Recognizing that the county might want more than 114 acres for its park, Martino and Radice also looked at the adjoining Dauer parcel.

On May 30, 1977, Mr. Piehowski telephoned Dr. Dauer asking for the exclusive right to sell his property. Dauer declined to give an exclusive listing but indicated that the property was and had been on an open listing since 1971. Piehowski said that Dauer told him, “Just find a buyer and don’t worry about your 10% commission,” but Dr. Dauer denied that aspect of the conversation. The only selling price for the property ever publicly quoted by Dauer was $10,000 an acre. On June 2, 1977, Pichow-ski wrote a letter to Dauer purporting to register Hillsborough County as a potential purchaser of all or part of the 660 acres and attached a copy of a letter dated June 1, 1977, from Sam Martino to Piehowski which referred to the Dauer property and read as follows:

Dear Mr. Piehowski:

This is to inform you that we have, this date, brought to the attention of the Hillsborough County Park Division and furnished data, maps, etc. to them, concerning their possible purchase of the above property. We quoted them $6,500.00 per acre as per your instructions, which includes a 10% commission payable to you and the undersigned on a 50/50 basis in the event said land is purchased, negotiated or acquired by ‘eminent domain’ proceedings by the Hillsbor-ough County Park Division.

On February 21, 1978, June 26, 1978, and July 6,1978, Mr. Piehowski wrote Dr. Dauer advising him of the continuing efforts of the Martinos to consummate a sale of the property to Hillsborough County. On August 22, 1978, Hillsborough County purchased Pichowski’s 114 acres, and the Marti-nos received a real estate commission for their services in bringing about the sale. On October 16,1978, Dauer’s administrative assistant wrote Piehowski advising him that he had no authority to negotiate the sale of the Dauer property and that any of his activities pertaining to that property were being done at his own risk. Thereafter, Hillsborough County land acquisition agents negotiated directly with Dauer for the purchase of a portion of his property to round out the county park. Hillsborough County offered to buy 117 acres for $4,200 per acre, but Dauer declined the offer. Hillsborough County then filed a condemnation suit to acquire the 117 acres as part of its park. Piehowski and the Martinos, intervened in the action claiming their right to a 10% commission. Following a nonjury trial on the merits of the intervenors’ claim, the court entered an order finding that they were entitled to a 10% real estate commission on the final value of the parcel established in the condemnation proceedings.

It is well settled that a condemnation proceeding does not constitute a sale for purposes of the right to be paid a real estate commission. Preston v. Carnation Co., 196 Cal.App.2d 43, 16 Cal.Rptr. 240 (1961); Haigler v. Ingle, 119 Colo. 145, 200 P.2d 913 (1948); Wilson v. Frederick R. Ross Investment Co., 116 Colo. 249, 180 P.2d 226 (1947); Schwenn v. S. Goldberg & Co., 88 N.J.Super. 113, 210 A.2d 808 (1965), aff’d 91 N.J.Super. 346, 220 A.2d 421 (1966); Shaw v. Avenue D Stores, Inc., 115 N.Y. S.2d 194 (Sup.Ct.1952); Emerson C. Custis & Co. v. Tradesman’s National Bank & Trust Co., 155 Pa.Super. 282, 38 A.2d 409 (1944). Even where he is the procuring cause of property being acquired by condemnation, a broker can only recover a commission if there is a specific provision in the brokerage contract to this effect. Wilson v. Frederick R. Ross Investment Co.; Shaw v. Avenue D Stores, Inc. The recurring theme of these cases is that the property owner should not be required to pay a real estate commission under the normal brokerage contract when his property is condemned because in such circumstances he is not a willing seller. In Wilson the court concluded that a transaction may be considered a sale for purposes of a broker’s commission only when the owner agrees on the property to be sold, concurs as to the time at which he is to give up possession, and has the power to negotiate a satisfactory price. Obviously, condemnation meets none of these tests.

The only Florida decision to discuss the issue is Keyes Co. v. Florida Nursing Corp., 340 So.2d 1254 (Fla. 3d DCA 1976). In that case, Dade County sought the assistance of a broker in finding property to be used as a rehabilitative center for chronic alcoholics. The broker found the defendant’s property and secured from the defendant an option agreement under which Dade County could purchase the property. At the same time, the broker obtained a written brokerage contract from the defendant. Dade County accepted the option agreement, but the defendant refused to go forward with the sale because of a change in management. Dade County then began eminent domain proceedings. During the progress of these proceedings, the parties agreed to a price and the conditions of a judgment of condemnation. The broker sued for a commission but was unsuccessful in the trial court. On appeal, the court acknowledged that an eminent domain proceeding is not a sale and cited several of the cases referred to above as authority for the proposition. However, the court ruled that the brokerage contract was susceptible to being construed as a promise to pay a commission for the finding of a purchaser and that if under those circumstances the defendant had prevented the broker from obtaining a commission by wrongfully refusing to proceed with the sale, the broker would be entitled to recover his commission. The court reversed the summary judgment, observing that an issue remains upon the allegation “that the plaintiff found the purchaser and the defendant frustrated the sale by its own actions.” 340 So.2d at 1256-57. Thus, the facts of Keyes were wholly different than those of the instant case because in Keyes the property owner had indicated its willingness to sell at a given price by signing the option and the county sought to make the purchase according to the terms of the option.

Giving appellees the benefit of all reasonable inferences, the most favorable interpretation of their contract is that Dr. Dauer employed them to find a purchaser of the property upon terms acceptable to him. Appellees contend that there were no fixed terms and that all they had to do was to find a purchaser for the property. This is patently absurd. Following this logic, if appellees found someone ready, willing and able to purchase the property for $1, they would be entitled to a commission. Under the contract, if Dauer had advised appellees of terms which would be acceptable to him, they would have earned their commission by finding a purchaser willing to meet these requirements. However, the only price that Dauer ever quoted was $10,000 an acre, and there is no suggestion of the existence of a purchaser who was willing to pay this price.

Of course, this is not the only way that appellees could have earned their commission. If they had procured an offer to purchase for a lesser amount and Dr. Dauer had indicated that the offer was acceptable, they would have earned their commission although he later changed his mind and declined to go through with the sale. Even if they had procured an offer which Dauer declined, but he then preempted them and negotiated his own sale with the prospective purchaser, they could make a strong claim for a commission. However, this did not occur because appellees never brought an offer to Dauer, and in any event, a condemnation is not a sale for purposes of claiming a commission. Since appellees failed to perform their contract, they were not entitled to a commission.

There is another reason why appellees should not prevail. They have never suggested that Mr. Pichowski obtained a brokerage contract for the sale of less than the entire 660 acres. Admittedly, there were some references in the correspondence that the county was expressing interest in acquiring less than the entire tract. However, appellees do not contend the correspondence was part of the brokerage contract because if they did they would also admit that the brokerage contract was one to “effect a sale” rather than to “find a purchaser,” in that the correspondence continually refers to the broker’s efforts to consummate a sale of the property. Obviously, a broker who finds a purchaser for 117 acres has not complied with a listing which encompasses 660 acres unless the owner accepts the offer to sell the lesser acreage. Since Dr. Dauer never accepted any offer to sell only 117 acres, there can be no recovery of the brokerage commission.

The main thrust of appellees’ argument is that Dr. Dauer was put on notice by the Martino letter of June 1, 1977, that they intended to claim a commission even if the property was acquired by eminent domain. At the outset, it should be noted that nothing in this letter refers to the condemnation of less than the entire parcel. More significant, however, is the fact that this is not the brokerage contract upon which appel-lees make their claim. There was no discussion of the possibility of condemnation during the telephone call in which Mr. Pichow-ski obtained his contract from Dauer. The mere fact that the brokers referred to eminent domain once in their correspondence with Dauer did not have the effect of broadening the scope of the listing. To accept the proposition that Dauer had to repudiate this incidental reference to condemnation at the risk of being held to having acquiesced to an amendment of the brokerage contract would place an intolerable burden upon an owner who testified that he was receiving correspondence from thirty to fifty brokers who were trying to sell his property.

A great portion of appellees’ contacts with the county was directed to the selling of Mr. Pichowski’s property, for which they were paid a commission. The fact that Dr. Dauer was advised that appellees were also trying to interest the county in his property did not place upon him an obligation to tell them to back off. The county was a potential purchaser along with many others, and it was natural for appellees to be discussing the property with potential purchasers. When it became apparent to Dauer that appellees seemed to be trying to negotiate on his behalf with the county, he had his administrative assistant terminate whatever listing then existed. He ultimately took over the negotiations with the county, but he turned down the only offer the county made. If appellees had obtained an offer from the county to purchase at a price acceptable to Dr. Dauer, they would have been entitled to a commission. They did not do so, and there was no evidence that they were prevented from doing so.

Finally, without saying it in so many words, appellees seem to be arguing that since Dr. Dauer knew they were trying to pique the county’s interest in the property and the county ultimately acquired at least a portion of the property, they should be entitled to be compensated for their efforts on a quantum meruit basis. They cannot sustain this position because they did not sue on a quantum meruit theory. In any event, no matter how much time appellees spent with the county, there is no basis for any recovery because they failed to meet the requirements of their brokerage contract. See Wilson v. Frederick R. Ross Investment Co.; Emerson C. Custis & Co. v. Tradesman’s National Bank & Trust Co. The fact that Dauer knew of their efforts with the county cannot change the result. A brokerage contract is much like an attorney’s contingent fee contract. Despite the most diligent efforts, there is no fee without accomplishment of the results contemplated by the contract. That is why the fee which is authorized in those cases where the contract is successfully performed generally exceeds the amount of compensation which would be recoverable if payment were being made on a quantum meruit basis.

We reverse the order finding that appel-lees are entitled to a commission and remand the case with directions that the trial court enter judgment against them.

HOBSON, A.C.J., and BOARDMAN, J., concur.

      . At the time of this appeal, the condemnation award had not yet been determined.

      . There are two types of real estate brokerage contracts. The first entails the employment of a broker to procure a purchaser for the property of another while the second involves the employment of a broker to effect a sale of the property. Knowles v. Henderson, 156 Fla. 31, 22 So.2d 384 (Fla.1945). Since appellees prevailed in the trial court, we must accept their interpretation of the Dauer telephone conversation that they obtained a “find a purchaser” brokerage contract. However, even under this type of contract, in order for the broker to obtain a commission, his prospect must be ready, willing and able to perform upon the terms fixed by the seller. Id.


author: DANAHY, Judge.

text:
    Donald L. LIPPINCOTT, Appellant, v. EXOTICA IMPORTS, INC., etc., et al., Appellees.
    No. 81-713.
    District Court of Appeal of Florida, Second District.
    March 19, 1982.
    Rehearing Denied April 22, 1982.
    Peter W. Martin and John P. Graves, Jr., of Martin, Stinnett & Graves, Sarasota, for appellant.
    Gregory W. Hootman of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellee Exotica Imports, Inc.
   DANAHY, Judge.

In this case of first impression in Florida, neither party to the appeal has directed our attention to any case on point from any other jurisdiction. Apparently, neither party looked for any such case. Our research has led us to appellate decisions in other states which we find helpful and persuasive.

The plaintiff (Lippincott) was injured in an automobile accident involving an automobile in which Lippincott was riding as a passenger. Lippincott brought this suit for damages against the owner and operator of the automobile (Peck), the automobile dealer which sold the automobile to Peck (Exotica), and Exotica’s insurer. The trial judge dismissed the action as to Exotica and Lip-pincott appeals. We reverse.

Peck purchased the automobile from Exotica in 1978 approximately four and one-half months before the accident giving rise to this action. Lippincott alleged that at the time of the purchase and delivery of the automobile to Peck, Peck had no insurance coverage of any kind on the vehicle and Exotica knew or should have known this, but nevertheless obtained registration of the automobile in Peck’s name and on his behalf by representing to a state tag agency that Peck had the insurance required by law. Section 320.02(4)(a), Florida Statutes (1977), provided that every applicant for registration of a motor vehicle must submit proof that personal injury protection (PIP) benefits have been purchased as required under section 627.733. When Peck purchased his automobile, section 627.733 required PIP benefits to the extent of $5,000 as set forth in section 627.736. From the time of the purchase of the automobile until the accident giving rise to Lippincott’s injuries, Peck had no insurance coverage on the automobile.

Lippincott characterizes Exotica’s involvement in the registration of Peck’s uninsured vehicle as either simple negligence, willful or wanton misconduct, or fraud. He asserts alternative theories of liability; that Exotica’s misconduct was the proximate cause of his injuries and Exotica should be required to compensate him entirely for those injuries, or that Exotica’s misconduct renders it responsible to Lippincott to the extent of the PIP benefits which the law required Peck to have and which he did not have, and which should have been available to Lippincott to compensate him in part for his injuries. Lippincott asserts that in the event Exotica’s liability for compensatory damages is limited to the extent of the PIP benefits, punitive damages should be added.

We reject the first theory of liability. Exotica’s misconduct, which for purposes of this opinion we assume can be established, was not the proximate cause of the accident in which Lippincott was injured. In this respect, we agree with the court in Shmunes v. General Motors Corp., 146 Ga.App. 488, 246 S.E.2d 486 (Ct.App.1978). We do not believe that Exotica is responsible for the negligence of Peck, the uninsured operator of the vehicle, simply because Exotica, in violation of a statute, made it possible for Peck to own and operate the vehicle without insurance.

However, we do agree with Lippin-cott that Exotica should be responsible to him to the extent of the PIP benefits which the law required Peck to have. Exotica did cause an injury to Lippincott in that Lippin-cott was without the protection of PIP benefits at the time of the accident. In this respect we agree with the reasoning of the Pennsylvania court in a very similar case, Lyngarkos v. Commonwealth Dept. of Transportation, 57 Pa.Cmwlth. 121, 426 A.2d 1195 (1981).

REVERSED and REMANDED for further proceedings consistent with this opinion.

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

      . Section 319.23(5), Florida Statutes (1977), required motor vehicle dealers to obtain a certificate of title for the purchaser upon sale of a motor vehicle. Section 319.23(6) provided that no certificate of title may be issued until the applicant has shown that a current registration has been obtained as required by section 320.-02. These statutes are currently in effect. We note that section 320.02(5)(a) now provides that proof of insurance may be by affidavit and that “by executing and notarizing aforesaid affidavit, no licensed motor vehicle dealer shall be liable in damages for any inadequacy, insufficiency, or falsification of any statement contained therein.” That provision was not part of section 320.02 at the time of the sale by Exotica to Peck.


author: BOARDMAN, Judge.

text:
    Frances V. GRIESEMER, as personal representative of the Estate of Anita Lynn Hemby, Appellant, v. PRATHERS, INC. and Aetna Casualty & Surety Company, Appellees.
    No. 81-798.
    District Court of Appeal of Florida, Second District.
    March 19, 1982.
    Rehearing Denied April 26, 1982.
    William J. Lambert, Jr. of Holloman & Lambert, Arcadia, for appellant.
    Andrew D. Owens, Jr. of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.
   BOARDMAN, Judge.

Plaintiff Frances V. Griesemer, as personal representative of the estate of Anita Lynn Hemby, appeals the trial court’s order awarding a new trial on the issue of damages suffered by Hemby’s estate. We reverse for entry of judgment on the original jury verdict.

Appellant brought a wrongful death action, pursuant to Sections 768.16-768.27, Florida Statutes (1979), against appellees Prathers, Inc. and Aetna Casualty & Surety Company for damages to Hemby’s estate arising out of an accident which occurred on January 17, 1980, in which a motorcycle driven by Hemby was struck by a delivery truck driven by an employee of Prathers, which was insured by Aetna. Hemby died from injuries sustained in the accident, and the jury found Prathers 100% negligent.

At the time of her death, Hemby was twenty-three years old, had been employed for approximately one and a half years by Venice Hospital as a nurse’s aide, and had exhibited above average ability in her work performance. She had demonstrated to her employers both the desire to become a licensed practical nurse (LPN) and the ability to become an LPN or even a registered nurse.

Dr. Thomas D. Curtis, an economist, testified as an expert witness on behalf of the estate that Hemby had a future work life expectancy of an additional 38.8 years if she were to retire at age 62. Hemby’s gross income over her work life, not considering any wage increase, which he stated was ridiculous but the most conservative way to compute, would be $336,997 as an LPN for a net accumulation, after taxes, at a savings rate of 12% per annum, of $37,508. $37,508 reduced by 6% over 40 years would give a present value of $3647.

The jury found the estate’s damages to be $50,000. Appellees filed a motion for new trial on damages to the estate or remit-titur of the estate’s damage award to $7387 (medical and funeral expenses of $3740 plus the $3647 present value of Hemby’s expected estate). The trial court granted the motion and, since appellant objected to the remittitur, ordered a new trial on the issue of damages to Hemby’s estate. This appeal followed timely.

Section 768.18 defines net accumulations as:

Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. If the decedent’s survivors include a surviving spouse or lineal descendants, loss of net accumulations beyond death and reduced to present value may also be recovered.

The trial court’s remittitur was based on a double reduction of appellant’s expert witness’s lowest appraisal of what the net accumulation of Hemby’s estate would have been if she had lived out her natural life expectancy; the remittitur was therefore improper. The court reduced the figure of $37,508 to $3647 by using a 6% interest rate, which Curtis testified was an accurate mathematical calculation. But, as Curtis further testified, this computation did not take inflation into consideration at all.

This court held in Seaboard Coast Line R. Co. v. Garrison, 336 So.2d 423 (Fla. 2d DCA 1976), that it is proper for a jury to take inflation into consideration and that the net accumulation of an estate should be increased by the inflation rate and then reduced by the current interest rate. This is essentially the procedure Curtis followed in arriving at his figure of $37,508.

In other words, it is clear that the figures Curtis used in his testimony were already reduced to today’s dollars, and that these figures represented what Hemby’s real purchasing power for the net accumulation of her estate would likely have been if inflation and an investment increase were removed. Therefore, the trial court should not have reduced these figures a second time.

Our holding in Garrison that inflation should be taken into consideration was approved by the Florida Supreme Court in Bould v. Touchette, 349 So.2d 1181 (Fla.1977). There our supreme court stated that the jury was not legally bound to make a mathematically precise and minimal award and quoted from Garrison as follows:

“[E]ven in the absence of any evidence whatsoever on this matter, we think it likely that juries will consider the impact of future inflation. Inflation has become a fact of life within the experience of everyone. It has continued to a greater or lesser extent throughout most of our lifetimes. Most people have found it necessary to reckon with this in their own financial planning for the future. Certainly injuries [sic], which are drawn from citizens from every walk of life, are aware of the effects of inflation. Quite likely they will be prone to consider it in their attempts to fully compensate a plaintiff.” At 424.

349 So.2d at 1185-1186.

Bould v. Touchette also reaffirmed the well-settled rule that a verdict should not be declared excessive merely because it is above the amount the court itself considers appropriate. Moreover, the jury’s verdict need not track the precise figures proposed by an expert witness. See Florida Standard Jury Instructions in Civil Cases, Instruction 2.2. “The verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Bould v. Touchette, supra, at 1184-1185; see also Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977).

We think the $50,000 jury award here is not excessive and was within the range delimited by Curtis’s conservative appraisal, wherein he opined that an appropriate award would be $37,508 for an LPN, the lowest position Hemby was likely to ultimately attain. There being no evidence that the jury was “influenced by passion, prejudice, corruption, or other improper motive,” see Bould v. Touchette, supra, at 1184; Sproule v. Nelson, 81 So.2d 478, 481 (Fla.1955), the trial court erred in overruling the jury’s verdict.

Accordingly, the trial court’s order granting a new trial on damages is REVERSED and the cause REMANDED with directions to enter final judgment in appellant’s favor in accordance with the original jury verdict.

HOBSON, A. C. J., and OTT, J., concur.


author: BASKIN, Judge.

text:
    Anthony DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-361.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Rehearing Denied May 10, 1982.
    Bennett H. Brummer, Public Defender and Thomas S. Wilson, Jr., Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Defendant Anthony Davis challenges his conviction for unlawful possession of a firearm while engaged in a criminal offense, citing his acquittal of the underlying felony of attempted murder in the first degree and the decision of the Supreme Court of Florida in Redondo v. State, 403 So.2d 954 (Fla.1981). He argues that, despite his agreement that the court respond to a jury question by advising the jury that it could find the defendant not guilty of attempted first degree murder and guilty of the firearm charge, he is entitled to reversal under the Redondo decision issued after his trial. We disagree.

While we recognize that defense counsel’s acquiescence stemmed from his reliance upon our earlier decision in Redondo v. State, 380 So.2d 1107 (Fla. 3d DCA 1980), reversed, 403 So.2d 954 (Fla.1981), we are nevertheless compelled to hold that his failure to object to the instruction precludes him from asserting the issue on appeal. Ray v. State, 403 So.2d 956 (Fla.1981); Smith v. State, 375 So.2d 864 (Fla.3d DCA 1979); McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971).

For these reasons, we affirm the defendant’s conviction. Because section 958.10, Florida Statutes (1979) does not authorize a probationary period, we remand the cause for correction of the sentence. Defendant’s presence is not required.

      . THE COURT: The jurors have written a question which I want marked and kept in the file. The question is as follows: Is it possible to have not guilty on the first and guilty on the second? And how do you propose to answer that?

        MR. ROSENBAUM: [The prosecutor] Yes.
      MR. WILSON: [The defense counsel] Yes, that’s an accurate statement of law.
      THE COURT: Is there any objection to writing down “Yes,” at the bottom of the piece of paper and hand it to them? At the conclusion of their deliberations, we shall retrieve the paper back from them and keep it in the file.
      MR. WILSON: Yes.
      MR. ROSENBAUM: Fine.
      THE COURT: I’ll sign my name.
      MR. WILSON: Might as well date it too, Judge.
      THE COURT: December 15. Will you please hand it to them.


author: PER CURIAM.

text:
    DIVISION OF ADMINISTRATION, STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. George B. ESPEY, et al., Appellees.
    No. 81-625.
    District Court of Appeal of Florida, Third District.
    March 23, 1982.
    Rehearing Denied May 10, 1982.
    H. Reynolds Sampson and Alan E. DeSer-io and Walter Kelly and John H. Beck, Tallahassee, for appellant.
    Albury, Morgan & Hendrick and James T. Hendrick, Key West, for appellees.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   PER CURIAM.

We affirm the final judgment based on a jury verdict awarding appellee $20,075 in this eminent domain action. The trial court properly allowed the jury to consider, as evidence of the value of the property, a comparable sale to the condemning authority subsequent to the date the declaration of taking was filed. See City of Fort Lauderdale v. Casino Realty, Inc., 313 So.2d 649 (Fla.1975); Division of Administration, State, Department of Transportation v. Samter, 393 So.2d 1142 (Fla. 3d DCA), pet. for rev. denied, 402 So.2d 612 (Fla.1981); Wilkerson v. Division of Administration, State, Department of Transportation, 319 So.2d 585 (Fla. 2d DCA 1975); Central and Southern Florida Flood Control District v. Dinkines, 165 So.2d 189 (Fla. 3d DCA 1964); cf. Home Owners of Winter Haven, Inc. v. Polk County, 320 So.2d 480 (Fla. 2d DCA 1975), cert. denied, 336 So.2d 106 (Fla.1976).


author: GRIMES, Acting Chief Judge.

text:
    George M. GAYLORD, Appellant, v. STATE of Florida, Appellee.
    No. 81-552.
    District Court of Appeal of Florida, Second District.
    March 26, 1982.
    Rehearing Denied May 3, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

The state charged appellant with robbery with a weapon and aggravated battery. He was convicted of both charges and received consecutive twenty-five and fifteen year sentences. Among other things, he contends that pursuant to section 775.021(4), Florida Statutes (1981), his sentence for aggravated battery should be vacated on the premise that the aggravated battery was a lesser included offense of the robbery with a weapon.

Appellant relies primarily upon Hicks v. State, 382 So.2d 389 (Fla.1st DCA 1980), in which the court held that under the accusatory pleadings and proof, the charge of aggravated battery was a category four lesser included offense of attempted robbery with a deadly weapon. In that case since the same weapon was involved, there was no way to prove the attempted robbery with a deadly weapon without also proving the aggravated battery because one of the elements of the aggravated battery was the use of a deadly weapon. § 784.045, Fla.Stat. (1981). Here, like Hicks, the same weapon was involved. However, unlike Hicks, count I only charged appellant with robbery with an unnamed weapon, whereas count II charged aggravated battery through the use of a deadly weapon described as a bottle. Thus, Hicks is not on point. In order to convict of a category four (now two) lesser included offense, the language of the information which charges the greater offense must allege all of the elements of the lesser offense although such lesser offense need not be an essential ingredient of the major offense. Brown v. State, 206 So.2d 377 (Fla.1968). Appellant could not have been convicted of aggravated battery as a lesser included offense under count I because of the absence of the allegation that the weapon used in the robbery was deadly.

Appellant does raise a valid point with respect to the assessment against him of $800 attorney’s fees and costs for his defense by the public defender. So far as we can ascertain from the record, the court entered this order without the notice and hearing which section 27.56(7), Florida Statutes (1979), requires. See McGeorge v. State, 386 So.2d 29 (Fla. 5th DCA 1980).

We affirm appellant’s convictions. However, we vacate the final judgment assessing attorney’s fees and costs and remand the case for a hearing concerning these matters.

RYDER and SCHOONOVER, JJ., concur.

      . See In re Use By the Trial Courts of the Standard Jury Instructions in Criminal Cases, Nos. 57,734 and 58,799 (Fla. Apr. 16, 1981).


text:
    David L. SMITH and Barbara G. Smith, his wife, Appellants, v. Parks SMITH, d/b/a Ft. George Wrecker Service and State Farm Mutual Automobile Insurance Company, Appellees.
    No. AE-470.
    District Court of Appeal of Florida, First District.
    March 29, 1982.
    Rehearing Denied May 11, 1982.

      Jeffrey G. Wood of Beckham & McAliley, P. A., Jacksonville, for appellants.
    Ronald L. Palmer and Harris Brown of Mathews, Osborne, Ehrlich, McNatt, Gobel-man & Cobb, Jacksonville, for appellees.
   PER CURIAM.

This is an appeal from a summary judgment based on the trial judge’s determination that there was no genuine issue of any material fact and that appellees Parks Smith, et al., were entitled to judgment as a matter of law.

On 26 April 1979, appellee Parks Smith, acting in his professional capacity for Ft. George Wrecker Service, attempted to tow a moving van which was stuck in a tidal beach area. Following an unsuccessful attempt to free the van using appellee’s wrecker and winch, appellant David Smith and other private persons on the scene attempted to assist by connecting their private vehicles to appellee’s wrecker with private, non-commercial lines and chains in a column or “daisy chain” sequence. After the connections were made and power applied to the vehicles, a steel U-bolt which connected appellant’s vehicle to another private vehicle broke free and was catapulted through the rear window of appellant David L. Smith’s vehicle, thereby injuring him.

Appellants’ complaint alleged that appel-lee Parks Smith solicited assistance from appellant and others, that appellant Smith relied on appellee’s professional skill and knowledge in performing towing operations, and that the appellee negligently violated his professional duty of care in permitting the use of private equipment in the towing operation and in failing to supervise and control the towing operation. By affidavit, two professional tow and wrecker proprietors declare: that the use of private, non-commercial equipment in towing operations presents an unreasonable risk of injury or danger to nearby persons and property, that offers of private assistance using non-commercial equipment should be refused, and that either using or permitting the use of such equipment in towing operations violates the custom or practice of the profession. Appellee and his son declare by affidavit that the appellee not only did not solicit or encourage assistance, but advised the appellant and others that the daisy chain tow would not succeed. Affidavits from other non-party tow participants or on-the-scene witnesses asserted that appel-lee Smith participated in the daisy chain tow, but the affidavits are ambivalent or contradictory as to whether he solicited or refused assistance from the appellant.

General principles of law governing summary judgments provide that the facts and the inferences to be drawn therefrom must be viewed in the light most favorable to the non-movant, and the mov-ant must show conclusively that there are no genuine issues of material fact. Summary judgment is neither a substitute for a trial nor a trial by affidavit or deposition, and is not appropriate if there is doubt of any material fact. See, Holl v. Talcott, 191 So.2d 40 (Fla.1966) and Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975). Further, as the court held in Holl, supra, summary judgment proceedings should be exercised with special caution in negligence actions. Applying these principles to the present case, we conclude that there are genuine issues of material fact as to whether the appellee solicited assistance from the appellant and thus owed a duty of care to appellant, and whether appellee negligently supervised and controlled the towing operation so as to cause the injury to appellant. Summary judgment under the circumstances was error.

REVERSED and REMANDED.

McCORD, ERVIN and SHAW, JJ., concur.


author: FERGUSON, Judge.

text:
    Pedro Luis PEREZ and Luisa Perez, his wife; Adolfo Rodriguez and Migdalia Rodriguez, his wife, Appellants, v. UNIVERSAL ENGINEERING CORP., Maule Industries, Inc., and the Insurance Company of North America (INA), Appellees.
    Nos. 80-1930, 80-1943 and 81-135.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Rehearing Denied May 11, 1982.
    Horton, Perse & Ginsberg and Edward A. Perse, Carroll, Halberg & Meyerson, Miami, for appellants.
    Vemis, Bowling, West, Montalto & Goodman and Stephen N. Montalto, Coconut Grove, Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellees.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

These appeals are from a summary judgment entered against appellants on the grounds that the causes of action are barred by the applicable statute of limitations. We reverse.

Perez and Rodriguez, employees of Penn-suco Cement & Aggregates, Inc., a wholly owned subsidiary of Maulé Industries, suffered serious job-related illness in 1972. Both workers were awarded worker’s compensation benefits. Both filed circuit court actions against Maulé Industries in 1975. The complaints of both appellants were amended and filed March 26, 1976 adding Universal Engineering Corp. and Western Knapp Engineering Company as party defendants. In the complaint as against Universal and Western it is alleged that appellants’ injuries were the result of manganese poisoning derived from use of a machine designed, manufactured, and installed negligently by Universal and Western.

In resolving the legal issues we must examine Section 95.11(3)(c), Florida Statutes (1975) and the several supreme court cases construing this statute. The machinery which is alleged to have been the cause of appellants’ injuries was purchased and installed as fixtures between 1952 and 1958. The 1975 statute of limitations which was in effect when the action commenced against Universal and Western provided in pertinent part:

(3) WITHIN FOUR YEARS
(c) An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner. .., except that when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event the action must be commenced within 12 years after the date of actual possession by the owner. .. . (emphasis supplied).

There is no dispute that under this statute the twelve-year period expired in 1970. Neither is there a dispute that if appellants have a cause of action, it accrued after 1970.

The issues raised by these appeals are (1) whether appellants’ causes of action are time barred by the twelve-year limitation of Section 95.11(3)(c), and if not, (2) whether the provision requiring that the action for recovery be commenced within four years is a bar.

The Supreme Court has considered Section 95.11(3)(c) in several cases. In Bauld v. J. A. Jones Construction Co., 357 So.2d 401 (Fla.1978), the statute had gone into effect before expiration of the twelve-year provision which would cut off access to the court, and, before the action became barred by the four-year limitation. The newly enacted statute did have the effect, in Bauld’s case, of shortening by seven months the statute of limitation in effect prior to enactment of the new statute. Bauld’s complaint was dismissed because she failed to commence it within the period as shortened. She attacked the new statute on constitutional grounds contending that she had a vested right to the benefit of the statute of limitations in effect when her cause of action accrued. The court rejected the contention and distinguished Kluger v. White, 281 So.2d 1 (Fla.1973) on which she relied:

But the revisions in question did not abolish any right of access to the courts; they merely laid down conditions upon the exercise of such a right.. . There is no vested right in a litigant to the benefit of the statute of limitations in effect when his cause of action accrues. ...

In Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979) the claimant was injured more than twelve years after completion of construction of an improvement to the realty. The statute would have been an absolute bar to the lawsuit. The Supreme Court affirmed the trial court’s declaration that the statute was unconstitutional as violative of Article I, Section 21, Florida Constitution, citing Kluger v. White, supra. The court distinguished Bauld v. J. A. Jones Construction Co., supra :

By contrast, Sirmon’s cause of action was already barred by the twelve year limitation when it first accrued — that is when his injuries occurred. No judicial forum would ever have been available to Sirmon if the twelve years prohibitory portion of the statute were given effect. Obviously, our decision as to the validity of the statute vis-a-vis Pearl Bauld would not operate to bar our declaring the same statute invalid vis-a-vis Jerry Sirmons.

In Diamond v. E. R. Squibb and Sons, Inc., 397 So.2d 671 (Fla.1981), the court in interpreting Section 95.031(2), relied on Overland Construction Co. v. Sirmons, supra, in finding that an action against a drug manufacturer was not barred when the victims learned twenty years after use that the drug caused cancer. In reaching its decision, the court cited Overland Construction Co. v. Sirmons, supra, for the rule that a statute which bars a cause of action before it exists violates a person’s constitutional guaranty of access to the courts.

Appellees argue that the facts of this case present a Bauld and not a Sirmons, problem. They rationalize that since the cause of action did not accrue until after the twelve-year bar provision had expired— application of which what would have unconstitutionally barred access to the courts — then the four-years statute of limitations would still apply, subject to the shortening provision of the simultaneously enacted “savings clause.” Thus, it is argued, appellants had from the date of injury, sometime between 1970 and 1972, until January 1,1976 to commence a lawsuit and having failed to do so are forever barred.

We must reject the argument for the reason that the supreme court precisely distinguished Bauld and Sirmons on the ground that in one ease the cause of injury occurred before the new statute was enacted and in the second case the injury occurred afterwards. The implicit holding of Overland Construction Co. v. Sirmons, supra, is that the “savings clause” is irrelevant where the cause of action accrued after enactment of the statute. See also Diamond v. E. R. Squibb and Sons, Inc., supra. In answer to the first of the two issues we hold that the twelve-year ban portion of the statute, cited with emphasis above, cannot constitutionally be applied to bar appellants’ action for recovery.

We next consider whether the cause of action is barred by the four-year statute of limitations. Perez was employed by Penn-suco from November, 1970 to April, 1972 and Rodriguez was employed from July, 1969 to October, 1972. Both men contend that their jobs consisted of welding manganese and manganese rods onto “crusher” machines, which machines are the alleged cause of their injuries, and that it was much later determined that they were suffering from manganese poisoning induced by the fumes given off during the welding process.

The statute in question expressly provides that with respect to latent defects the time begins to run when the defect is discovered or should have been discovered with reasonable diligence. The question whether one by exercise of reasonable diligence should have known he had a cause of action against a defendant is, ordinarily, one of fact which should be left to the jury. First Federal Savings and Loan Association of Wisconsin v. Dade Federal Savings and Loan Association, 403 So.2d 1097 (Fla. 5th DCA 1981) and cases collected therein. But cf. Steiner v. Ciba-Geigy Corporation, 364 So.2d 47 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 461 (Fla.1979) (summary judgment affirmed where from record evidence it was conclusively shown that facts giving rise to cause of action should have been known earlier). The motion for summary judgment filed by Universal relies only on the statute of limitations as a bar to this action without supporting evidentiary matters. In the motion it is contended that the facts giving rise to the cause of action occurred December 2, 1970 through April 4, 1972, more than four years prior to the filing of the complaint naming Universal as a defendant. Needless to say the date of occurrence of the injury does not necessarily determine when a cause of action accrues and the statute so contemplates. The running of the statute of limitations is tolled until a claimant, through the exercise of reasonable diligence, is put on notice as to the negligent act which caused the injury. Swagel v. Goldman, 393 So.2d 65 (Fla. 3d DCA 1981); Nolen v. Sarasohn, 379 So.2d 161 (Fla. 3d DCA 1980), Steiner v. Ciba-Geigy Corporation, supra. Appellants contend that it was long after their actual illnesses that they became aware that they had been exposed to the dangerous manganese fumes which was the source of injury.

On these pleadings we hold that whether the four-year provision of Section 95.11(3) is a bar to this action presents a material issue of fact, and, therefore, summary judgment was inappropriate. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed and remanded for further consistent proceedings.

      . The action against Maulé Industries is the subject of a separate appeal, Perez v. Maule Industries, Inc., 411 So.2d 960 (Fla. 3d DCA 1982).

      . In a companion case, Valdes v. Western Knapp Engineering Co., 382 So.2d 1371 (Fla. 3d DCA 1980), summary judgment was reversed, Western having candidly confessed error in light of Overland Construction Co. v. Sirmons, infra.

      . The courts shall be open to every person for redress of injury, and justice shall be administered without sale, denial or delay.

      . Section 95.022 entitled “Effective date; saving clause” provides:
      This act shall become effective on January 1, 1975, but any action that will be barred when this act becomes effective and that would not have been barred under prior law may be commenced before January 1, 1976, and if it is not commenced by that date, the action shall be barred.


text:
    Alfredo CURI and Norma Curi, Appellants, v. Georgina CORDOVA, Appellee.
    No. 81-1994.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Rehearing Denied May 10, 1982.
    Ezzo & Garel, Miami, for appellants.
    Robert B. Siesholtz, North Miami, for ap-pellee.
    Before HENDRY, DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Circle Finance Company v. Peacock, 399 So.2d 81 (Fla. 1st DCA 1981); Hiestand v. Geier, 396 So.2d 744 (Fla. 3d DCA 1981); Willard Homes, Inc. v. Sanders, 127 So.2d 696 (Fla. 2d DCA 1961).


text:
    Edmer TAMAYO and Marina Torres de Tamayo, his wife, jointly and severally, Appellants, v. Joan v. CABALLERO, Appellee.
    No. 82-37.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Rehearing Denied May 17, 1982.

      Patrick A. Podsaid, Sheryl Lowenthal Javits, Miami, for appellants.
    Gary N. Holthus, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Edmer Tamayo and his wife, Marina, appeal from the trial court’s order denying their motion to quash service of process. We find their point well-taken and reverse.

The undisputed facts are that the Tama-yos are Colombian nationals whose principal residence is Bogota, Colombia. At the time service was attempted, the Tamayos were outside the jurisdiction of the State of Florida and the United States. Service of process was obtained by serving a Mr. Molina, who was employed as the Tamayo’s caretaker/gardener. Molina was not a resident of the household and spoke no English. Deputy Leahy could not recall whom he had served; he spoke no Spanish.

Given these undisputed facts, compliance with Section 48.031, Florida Statutes (1979) was not evident. Accordingly, the order under review is reversed and this cause is remanded with directions to the trial court to enter an order quashing service of process. Hauser v. Sehiff, 341 So.2d 531 (Fla. 3d DCA 1977).

Reversed and remanded with directions.