text:
    Virgil HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-305.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Rehearing Denied March 20, 1981.
    Bennett H. Brummer, Public Defender and Jay M. Levy, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. McCloud v. State, 335 So.2d 257 (Fla.1976); Corbo v. State, 347 So.2d 133 (Fla.3d DCA), cert. denied 354 So.2d 979 (Fla.1977); Griffin v. State, 335 So.2d 348 (Fla.2d DCA 1976); cf. Mahaun v. State, 377 So.2d 1158 (Fla.1979).


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    MOTORS INSURANCE CORPORATION, Appellant, v. Vernon B. WOODCOCK, Appellee.
    No. 80-307.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Rehearing Denied March 20, 1981.

      Kurzban & Kurzban and Steven M. Weinger, Miami, for appellant.
    Roberts & Currea and Michael A. Currea, Hialeah, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Woodcock brought a claim against his insurer, Motors Insurance Corporation, for the theft and destruction of his automobile. Motors denied coverage on the grounds that Woodcock’s policy was cancelled for nonpayment of premium as of April 28, 1979 (four days before Woodcock’s loss), and Woodcock’s fraudulent misrepresentations concerning his driving record prevented recovery under the policy. Woodcock sued. The trial court entered a summary judgment on the issue of liability in his favor. We reverse.

The notice of cancellation which Motors contends was mailed to Woodcock on April 7,1979, provided in pertinent part:

“... the premium for this protection has not been paid. Therefore we must, and hereby do, cancel your policy effective at the time and date shown in the right hand box above [policy cancelled as of 12:01 a.m. Standard Time at your address on 04-28-79]. HOWEVER, IF THE AMOUNT DUE NOW IS PAID PRIOR TO THAT DATE THE POLICY WILL REMAIN IN FORCE, OTHERWISE IT SHALL STAND CANCELLED AT SAID TIME AND DATE WITHOUT FURTHER NOTICE.”

Woodcock claims that the notice was misleading and ambiguous in several respects. However, since he unequivocally states that he never received the notice, and the words used in the cancellation are not a matter of dispute, the question of whether the notice was ambiguous, and thus the question of the validity vel non of the notice, can be decided as a matter of law. Aetna Casualty & Surety Company v. Simpson, 128 So.2d 420 (Fla. 1st DCA 1961).

“The general rule governing the sufficiency of such a notice is that ‘in order to form the basis of a cancellation of a policy notice by the insurer to the insured need not be in any particular form in the absence of a statute or policy provision prescribing such form, and is sufficient so long as it positively and unequivocally indicates to the insured that it is the intention of the company that the policy shall cease to be binding as such upon the expiration of the stipulated number of days from the time when its intention is made known to the insured.’ ”
128 So.2d at 426.

The notice in the present case clearly satisfied the requisites of this rule. It states in certain terms that the policy is cancelled as of a specific date. Its certainty is unaffected by the fact that some action on the part of the insured could be taken to prevent cancellation, since no further action on the part of Motors was required to effect cancellation. Compare, e. g., Alexander v. State Farm Mutual Automobile Insurance Co., 148 So.2d 898 (La. 1st Cir. 1963) (notice that “the policy is cancelled unless” effective) with Travelers Insurance Co. v. Jenkins, 285 So.2d 839 (La. 1st Cir. 1973); Ellzey v. Hardware Mutual Insurance Co. of Minnesota, 40 So.2d 24 (La. 1st Cir. 1949) (notice that “the policy will be cancelled unless” ineffective).

In holding Motors’ notice of cancellation to be clear and unequivocal, we are not unmindful of our decision in Auvil v. Nationwide Mutual Fire Insurance Co., 222 So.2d 46 (Fla. 3d DCA 1969). We are not persuaded that Auvil dictates a result contrary to the one we reach.

We deem the holding of Auvil to be that “a unilateral mistake in calculating the premium does not provide an insurance company with a reasonable basis for cancelling an insurance policy.” 222 So.2d at 48. The court’s discussion in Auvil of the language of the cancellation notice is immaterial to that holding and thus dictum. Moreover, the ambiguity said to exist in Auvil, as we read that decision, is not ambiguity in the language of the notice, but instead ambiguity arising from the insurance company’s multiple requests to Mrs. Auvil for payment of premiums precipitated by the company’s mistake in calculating the premium. See Pike v. National Life Insurance Company, 377 So.2d 973 (Fla. 3d DCA 1979) (citing Auvil for the proposition that “any ambiguity or contradiction in an insurer’s multiple requests for payment ... must be resolved against the company”). It is for these reasons that we do not consider Auvil controlling. See also Allstate Insurance Company v. Crawford, 365 So.2d 408 (Fla. 3d DCA 1978) (in which although we affirmed judgment for the insured, we sub silentio approved the language of a cancellation notice in all respects identical to Auvil).

Having concluded that the language of the notice of cancellation is unambiguous, we must now address the question of whether the partial summary judgment can be sustained on the basis that Woodcock conclusively demonstrated that this notice was not mailed to him.

Woodcock denied receiving the cancellation notice. Had the insurance company shown by appropriate affidavit that it fully complied with its New York office procedures in mailing this notice to Woodcock, proof of mailing and proof of cancellation, see Section 627.728(5), Florida Statutes (1977), would have been presumptively established. Woodcock’s denial would have been insufficient to overcome this presumption. Compare Brown v. Giffen Industries, Inc., 281 So.2d 897, 899 (Fla. 1973) (rehearing), with Bernstein v. Liberty Mutual Insurance Co., 294 So.2d 63 (Fla. 3d DCA 1974). Motors, however, showed only that its Miami office received the duplicate of the notice, the original of which was purportedly mailed to Woodcock. This showing, although not sufficient to raise a presumption that Woodcock was mailed the notice, was clearly sufficient to raise a genuine issue of fact as to whether the notice was mailed.

Lastly, we address Motors’ denial of coverage under Section 627.409(1), Florida Statutes (1977), a viable defense even in the absence of effective cancellation. See Sauvageot v. Hanover Insurance Co., 308 So.2d 583 (Fla. 3d DCA 1975). The summary judgment implicitly rejects Motors’ right to assert this defense. There is nothing in the record before us to show Woodcock’s entitlement to summary judgment on this issue. To be sure, it is undisputed that Motors, after discovery of the asserted material misrepresentations or omissions in Woodcock’s application for insurance, and before notice of cancellation, offered to continue Woodcock’s insurance upon payment of a higher premium. Under such circumstances, Motors’ actions could be deemed a waiver of the right to contest the validity of the policy. See Mutual of Omaha Insurance Co. v. Eakins, 337 So.2d 418 (Fla. 2d DCA 1976). However, before Motors is es-topped from raising this defense, Woodcock must demonstrate reliance upon the insurer’s action. Travelers Indemnity Company of R.I. v. Mirlenbrink, 345 So.2d 417 (Fla. 2d DCA 1977). This record does not reflect reliance by Woodcock, and estoppel is not shown as a matter of law.

Reversed and remanded.

      . Were Woodcock’s claim that he received the notice and that because of prior dealings with the company or the like, it served to confuse him, a facially unambiguous notice could factually become ambiguous. See Pike v. National Fidelity Life Insurance Company, 377 So.2d 973 (Fla. 3d DCA 1979).

      . The Auvil cancellation notice, substantially identical to the notice in the present case, read, in pertinent part:
      “.. . this is notice that the policy numbered above is cancelled effective 12:01 A.M. on the 17th day after the above date.”

      . Unlike Woodcock, Mrs. Auvil testified that she received the cancellation notice. The question of ambiguity in Auvil therefore involves considerations beyond the language of the notice.

      . The affidavit of the Miami office manager for Motors included hearsay as to the New York office procedures, which cannot be considered on a motion for summary judgment. Ham v. Heintzelman’s Ford, Inc., 256 So.2d 264 (Fla. 4th DCA 1972); Harrison v. Consumers Mortgage Co., 154 So.2d 194 (Fla. 1st DCA 1963); Humphrys v. Jarrell, 104 So.2d 404 (Fla. 2d DCA 1958).

      . Motors attempted to supplement the record in this court with a post office department certificate of mailing which would indisputably prove mailing. Scott v. Johnson, 386 So.2d 67 (Fla. 3d DCA 1980). See Service Fire Insurance Co. of N. Y. v. Markey, 83 So.2d 855 (Fla.1955); Burgos v. Independent Fire Insurance Co., 371 So.2d 539 (Fla. 3d DCA 1979); Allstate Insurance Co. v. Dougherty, 197 So.2d 563 (Fla. 3d DCA 1967). This certificate was not a part of the record below and not considered by the trial court. We do not consider it here.

      .Section 627.409(1), Florida Statutes (1977), provides:
      “(1) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
      “(a) Fraudulent; or
      “(b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
      “(c) The insurer in good faith would either not have issued the policy or contract, or would not have issued it at the same premium rate, or would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.”


text:
    EDITORIAL AMERICA, S. A., Appellant, v. JOHN MERCER TERMINAL WAREHOUSE COMPANY, INC. and Mount Vernon Fire Insurance Co., Inc., Appellees.
    No. 80-563.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Rehearing Denied March 20, 1981.
    Smith, Mandler, Smith, Werner, Jacobow-itz and Fried and Patricia M. Silver, Miami Beach, for appellant.
    Walton, Lantaff, Schroeder and Carson and James Knight, Magill, Sevier and Reid, Miami, for appellees.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

John Mercer Terminal Warehouse Company, Inc. handled, stored and shipped rolls of printing paper for and under an agreement with Editorial America, a publisher and distributor of magazines. Mount Vernon Fire Insurance Company, Inc. insured Mercer under a warehouseman’s legal liability policy.

In March 1975, Editorial America first learned that some of its printing paper in Mercer’s warehouse had suffered water damage. Editorial advised Mercer, which in turn advised its landlord, a corporation which was separately insured under a liability policy issued by Hartford Fire Insurance Company. Hartford was notified of the loss and in April 1975 caused a public insurance adjuster, General Adjustment Bureau, to investigate. It was not until September 3,1975, that Mercer notified Mount Vernon of the loss. Mount Vernon, like Hartford, employed General Adjustment Bureau to investigate. At the conclusion of this investigation, Mount Vernon denied coverage on the ground that Mercer had violated that provision of the policy which said:

“Insured shall use due diligence to report all losses as soon as they may have known thereof, and file proof of loss as promptly as may be practicable.”

Editorial America sued Mercer and Mount Vernon, and Mercer cross-claimed against Mount Vernon, asserting that it wrongfully denied coverage. The trial court entered a partial summary judgment against Mount Vernon, negating its defense of no coverage.

In prior proceedings, we reversed that judgment upon a finding that Mercer’s failure to notify its insurer created a presumption of prejudice to the insurer which was not conclusively overcome by evidence that Mount Vernon was not in fact prejudiced. See Mount Vernon Fire Insurance Company v. Editorial America, S. A., 374 So.2d 1072 (Fla.3d DCA 1979). The corollary of that decision is not that Mount Vernon was conclusively shown to be prejudiced and thus entitled to summary judgment. Despite this, the trial court, upon our remand, entered summary judgment for Mount Vernon, stating, "... that there is no genuine issue as to any material fact under the findings and law of this case as established on appeal by the per curiam decision of the District Court of Appeal, Third District of Florida, Case No. 79-1020.” We made no such finding and established no such law of the case. Editorial America now appeals. We reverse.

There exist genuine and material issues as to whether Mount Vernon was in fact prejudiced by the late notice and proof of loss. Viewing the evidence most favorably to Editorial America, the issues which remain to be resolved by a jury include: (1) even if prompt notice and proof of loss had been given, could Mount Vernon have taken any steps to minimize the water damage to the paper, in light of facts showing that the water damage was the result of a single occurrence, not a continuing series of events? (2) did the late notice, which prevented immediate investigation of the loss, prejudice Mount Vernon, in light of the dispute as to the cause of the damage and in light of facts showing that the investigation later made fulfilled the apparent requirements of Mount Vernon’s investigator? (3) did the late notice jeopardize Mount Vernon's subrogation rights against the landlord, which rights were admittedly dependent on the facts surrounding the cause of the damage and might not, in any event, be lost in light of the fact that the landlord was otherwise promptly placed on notice of the occurrence?

Accordingly, we reverse the summary judgment entered in favor of Mount Vernon Fire Insurance Company. H. S. Equities, Inc. v. Hartford Accident & Indemnity Co., 334 So.2d 573 (Fla.1976); Allstate Insurance Co. v. Korschun, 350 So.2d 1081 (Fla.3d DCA 1977); Kaplan v. Phoenix of Hartford Insurance Co., 215 So.2d 893 (Fla.3d DCA 1968). See also Tiedtke v. Fidelity and Casualty Co. of N. Y., 222 So.2d 206 (Fla.1969).

Reversed and remanded.


author: PER CURIAM.

text:
    ARCH CREEK NURSING HOME, INC., Appellant, v. Ann RINGER, Appellee.
    No. 80-692.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Rehearing Denied March 20, 1981.

      Dolan, Fertig & Curtis and David W. Boone, Fort Lauderdale, for appellant.
    Greene & Cooper and Sharon L. Wolfe, Miami, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Affirmed. Dusine v. Golden Shores Convalescent Center, Inc., 249 So.2d 40 (Fla.2d DCA 1971); Cleaver v. Dade County, 272 So.2d 559 (Fla.3d DCA 1973); University Community Hospital v. Martin, 328 So.2d 858 (Fla.2d DCA 1976).


text:
    William FULLER, Appellant, v. GENERAL MOTORS CORPORATION, Appellee.
    No. 80-697.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Rehearing Denied March 20, 1981.
    Preddy, Kutner and Hardy and T. G. Anagnost and G. William Bissett, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara and McCoy and Richard A. Sherman, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

The final judgment under review, which was entered in favor of the defendant General Motors Corporation based on a jury verdict after trial below, is affirmed upon a holding that: (a) “[collateral estoppel, or estoppel by judgment, is a judicial doctrine which in general terms prevents identical parties from relitigating issues that have previously been decided between them,” and has, as one of its essential elements, the requirement that “[t]he parties ... be identical.” Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.1978); (b) the judicial doctrine of collateral estoppel or estoppel by judgment is totally inapplicable to this case because the defendant General Motors Corporation was not a party to the prior final summary judgment entered in favor of the co-defendant herein, see Fuller v. General Motors Corp., 353 So.2d 1236 (Fla. 3d DCA), cert. denied, 361 So.2d 832 (Fla.1978), and was in no sense bound thereby; and (c) the trial court was, accordingly, correct in allowing the defendant General Motors Corporation to litigate at trial below the issue of the alleged defective brakes in this products liability action.

Affirmed.


author: NESBITT, Judge.

text:
    Orville R. BRISCOE, Appellant, v. FLORIDA NATIONAL BANK OF MIAMI, and Henry King Stanford, as Personal Representatives of the Estate of John J. Koubek, Deceased, Appellees.
    No. 80-1048.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Rehearing Denied March 20, 1981.
    Ezzo, Garel & Saylor and Bruce A. Say-lor, Miami, for appellant.
    Paige & Catlin and Kyle R. Saxon, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

This appeal involves a contest concerning ownership of a joint checking account. The trial court directed a verdict in favor of the co-personal representatives, Florida National Bank of Miami (the bank) and Stanford, at the close of all the evidence after a jury trial. The effect of the directed verdict was to determine that the joint checking account between the appellant, Briscoe, and co-personal representatives’ decedent, John J. Koubek, was the product of undue influence. Briscoe contends that it was error to direct the verdict as well as to exclude his testimony as being protected under the “deadman’s” statute, Section 90.05, Florida Statutes (1975). We agree with the appellant and reverse and remand for new trial.

John J. Koubek was a benefactor of the University of Miami. It was known for some years prior to his death that a trust in favor of the University of Miami of approximately $1,500,000 had been established by the provisions of Mr. Koubek’s last will and testament. Briscoe, an executive in the administrative department of the University, was assigned to and did befriend and assist the aging benefactor. Ultimately, Briscoe moved into Mr. Koubek’s home as companion and helpmate. In return, he received room and board gratis. As the infirmities of age overtook the decedent in his ninety-eighth year, he allegedly requested Briscoe to become the joint signator of his checking account on deposit with the appellee bank. Briscoe communicated the decedent’s request to the bank. The bank departed from its usual practice, of requiring the personal presence of the owner of an account when the joint signature cards are executed, because the bank was familiar with both Briscoe and the decedent. Instead, they accepted signature cards and Mr. Koubek’s signed letter of authorization to change the account to a joint account with right of survivorship. The bank honored checks drawn against the account solely on Briscoe’s signature, both before and after the decedent’s death. There was approximately $90,000 in the account at the time of Mr. Koubek’s death. Ultimately, Briscoe demanded the proceeds of the account to which he was presumptively entitled as a gift pursuant to Section 659.291, Florida Statutes (1975).

This action for declaratory relief was then commenced by the decedent’s co-personal representatives, alleging that Briscoe had procured the joint account with right of survivorship through undue influence. At trial, testimony recounting the facts recited above was produced by the bank. By joint stipulation, the letter of authorization and the joint signatory card were admitted into evidence. A bank officer also gave testimony showing that the ostensible purpose for changing the account was to enable Briscoe to pay the decedent’s bills and assist him with financial matters.

The evidence adduced (of the confidential relationship enjoyed by Briscoe with the decedent and of Briscoe’s active procurement of the joint account) created a prima facie case of undue influence. In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971). There was, however, some evidence produced by the bank, perhaps out of turn, tending to show a reasonable explanation regarding Briscoe’s participation in the private affairs of the decedent which was sufficient to create a jury question. In Re Estate of Carpenter, supra. Moreover, Briscoe’s personal testimony regarding the reason for his participation in the decedent’s affairs was improperly excluded as being violative of the deadman’s statute, Section 90.05, Florida Statutes (1975). Clearly, the introduction of the letter of authorization and the joint signatory card, creating the joint account with right of survivorship, constituted a waiver of the deadman’s statute. Sessions v. Summers, 177 So.2d 720 (Fla. 1st DCA 1965); see also, Josephson v. Kuhner, 139 So.2d 440, 443 (Fla. 1st DCA 1962) (setting forth the reasons for the waiver rule). Once there was a waiver of the statute, it constituted a waiver for all purposes. Bordacs v. Kimmel, 139 So.2d 506 (Fla. 3d DCA 1962). Consequently, Briscoe’s testimony, if otherwise admissible, was erroneously excluded under the deadman’s statute.

The directed verdict was improvidently granted because, at the very least, the jury was entitled to weigh the reasonableness of the explanation offered by the bank (as well as that offered by Briscoe) regarding his participation in the private affairs of the decedent, Anheuser-Busch, Inc. v. Campbell, 306 So.2d 198 (Fla. 1st DCA), cert. dismissed, 328 So.2d 840 (Fla.1975). In Gulle v. Boggs, 174 So.2d 26 (Fla.1965), Justice Thornal, with his usual clarity, pronounced the effect of a presumption dispelled, as well as the responsibility for its evaluation:

The presumption provides a prima facie case which shifts to the defendant the burden to go forward with the evidence to contradict or rebut the fact presumed. When the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, then the impact of “the presumption is dissipated.” Whether the ultimate fact has been established must then be decided by the jury from all of the evidence before it without the aid of the presumption. At this point the entire matter should be deposited with the trier of the facts to reconcile the conflicts and evaluate the credibility of the witnesses and the weight of the evidence.

174 So.2d at 28-29.

For the foregoing reasons, the final judgment entered upon the directed verdict in favor of the appellees is reversed and remanded for a new trial.

      . The deadman’s statute is now incorporated into the Florida Evidence Code in Section 90.-602, Florida Statutes (1979).

      . This statute was renumbered as Section 658.-56. § 46, Ch. 80-260, Laws of Fla.
      The Legislature has created “convenience” accounts [§ 658.57 (formerly § 659.292, Fla. Stat. (1979); § 47, Ch. 80-260, Laws of Fla.)] which will obviate the problem created by the instant case because, as its very title suggests, it authorizes the owner to make someone else his agent for the purpose of drawing against his account. The agency, coupled with the interest, does not survive the owner’s death. However, a bank is seemingly protected for payments on the account. Funds remaining in a convenience account shall be paid to the guardian of the property of the principal, to the personal representative of the decedent’s estate [§ 733.607, Fla.Stat. (1979)], pass by summary administration [§ 735.206, Fla.Stat. (1979)], or by disposition without administration [§ 735.-301, Fla.Stat. (1979)].


author: SCHWARTZ, Judge.

text:
    CITY OF MIAMI, Florida, a municipal corporation; Howard Gary, as Director of the Department of Management and Budget of the City of Miami; and Manohar S. Surana, as Assistant Director of the Department of Management and Budget of the City of Miami, Florida, Appellants, v. Delores KORY, Appellee.
    No. 80-1474.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Rehearing Denied March 20, 1981.

      Seyfarth, Shaw, Fairweather & Gerald-son and Peter J. Hurtgen, for appellants.
    Weinsoff & Klausner and Robert D. Klausner, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

This is an appeal by the City of Miami from a declaratory judgment, rendered after a non-jury trial, which determined that Delores Kory’s resignation as a probationary city employee was void because it was executed under duress. We reverse.

The facts are almost entirely undisputed. Under the civil service rules, an employee may be discharged without cause or explanation at any time during the first six months of employment, after which he attains permanent civil service status. On October 1, 1978, the appellee began work for the city in the Department of Management and Budget. At 1:00 p. m. on March 30,1979, the last working day of Ms. Kory’s probation, her supervisor, Manohar S. Sura-na, the Assistant Director of the Department, handed her a memorandum, signed by him, which stated that she would be terminated “effective 2:00 p. m. today, Friday, March 30, 1979.” After reading the memo, and without prompting from Sura-na, Ms. Kory told him that she was seeking another position with the city. She asked if, in order to avoid being fired, which would have precluded her securing another city job, it would be possible for her to resign instead. Surana replied that he had no objection to a resignation but that the decision was entirely up to her. After going out to lunch to “give this some thought,” Ms. Kory returned at 1:50 p. m. with a handwritten resignation, which bore the time “1:55 p. m.,” intended specifically to become effective prior to her discharge. The note stated:

As I can no longer comply with the requirements of the position I occupy, I am tendering my resignation, effective immediately.

Surana accepted the resignation.

During April Ms. Kory made several attempts to obtain other employment from the city and to extend her probationary status with the Department of Management and Budget. After all such efforts proved unsuccessful, she sought the advice of counsel on April 26, 1979. It was then that she first learned the fact which the trial court found to be decisive in granting her relief; although, he testified at the trial, he (like Ms. Kory) did not know it at the time, Surana, as the assistant director of his department, did not have the authority to discharge a probationer. Under the city code, only the director of a department, with the approval of the City Manager, possesses the power to do so. Thus, if Surana’s letter had been the cause of Ms. Kory’s termination, it would have been ineffective as contrary to the requirements of the city's own regulations. City of Hialeah v. Stola, 330 So.2d 825 (Fla. 3d DCA 1976).

This was the basis of Ms. Kory’s action below, which was to set aside the instrument which did end her employment with the city, her own resignation of March 30. She contended essentially that the resignation was the product of duress created by the invalid notice of dismissal. The trial judge agreed, set aside the resignation, and ordered the plaintiff restored to the position she would have occupied had it not been tendered — that is, as a non-probationary civil service employee — with full back pay and emoluments. We are unable to approve this conclusion.

An early, and often-cited definition of duress is contained in Herald v. Hardin, 95 Fla. 889, 116 So. 863, 864 (1928):

Duress is a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition.

Accord, e. g., Cooper v. Cooper, 69 So.2d 881 (Fla. 1954); Corporación Peruana de Aeropuertosy Aviacion Comercial v. Boy, 180 So.2d 503 (Fla. 2d DCA 1965). As this formulation of the rule and all the equivalent ones indicate, there are in essence two factors which must coexist in order to establish duress — one which deals with the party allegedly under duress; the other, with the party allegedly imposing it. It must be shown (a) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free choice or will and (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side. “[U]nderlying all definitions of ‘duress’ is the dual concept of external pressure and internal surrender or loss of volition in response to outside compulsion.” 17 C.J.S. Contracts, § 168 at 943 (1963). Although both elements of this duality are indispensable to a finding of duress, we think that neither existed in the present circumstances.

Resignation Voluntary Act of Plaintiff.

As was said in Azalea Drive-In Theatre, Inc. v. Sargoy, 394 F.Supp. 568, 574 (E.D.Va. 1975), rev’d on other grounds, 540 F.2d 713 (4th Cir. 1976):

The authorities are in agreement that the ultimate fact to be determined whenever the question of duress is raised is whether the purported victim’s will was so overcome as to deprive him of free choice. See generally 25 Am.Jur.2d [Duress and Undue Influence], § 3, at 353 and 355-57; 17 C.J.S. [Contracts § 168], at 948.

On the facts of this case it is clear that Ms. Kory’s resignation was to the contrary of this requirement, entirely the product of her own choice. The idea of her resigning was initiated entirely by her, and was not suggested, much less forced upon her by Surana. The case is thus completely different from those cited by the appellee, in which the resignation was affirmatively requested, indeed required by the employer as the only alternative to a similarly unlawful discharge. See, e. g., Paroczay v. Hodges, 219 F.Supp. 89 (D.D.C. 1963); Motto v. General Services Administration of U.S., 335 F.Supp. 694 (E.D.La. 1971), aff’d without opinion, 502 F.2d 1165 (5th Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1125, 43 L.Ed.2d 398 (1975). In a word, Surana did not tell Ms. Kory to “quit or be fired;” he said, “you’re going to be fired,” and Ms. Kory asked, “may I quit first?” Furthermore, after she herself raised the possibility of resignation, the plaintiff made a conscious decision to take that course for reasons which seemed to render it in her own best interests to do so. When, as here, a particular course of action is raised on one’s own volition, see, Taylor v. United States, 591 F.2d 688 (Ct.Cl. 1979); Joseph F. Egan, Inc. v. City of New York, 18 A.D.2d 357, 239 N.Y.S.2d 420, 423 (App.Div.1963), rev’d on other grounds 17 N.Y.2d 90, 268 N.Y.S.2d 301, 215 N.E.2d 490 (1966), and is finally decided upon in a deliberate and considered choice between alternatives, see, Coffman v. Bolger, 590 F.2d 1366 (5th Cir. 1979); Johnson, Drake & Piper, Inc. v. United States, 209 Ct.Cl. 313, 531 F.2d 1037 (1976); McGucken v. United States, 407 F.2d 1349 (Ct.Cl. 1969), cert. denied, 396 U.S. 894, 90 5.Ct. 190, 24 L.Ed.2d 170 (1969); Autera v. United States, 182 Ct.Cl. 495, 389 F.2d 815 (1968), no finding of involuntariness, and thus no conclusion of duress may be sustained.

Resignation not Product of Improper Conduct of City.

Turning to the other side of the coin, the conduct of the city, we find the plaintiff’s case equally inadequate. As has been demonstrated, the act supposedly coerced must be caused by some improper or illegal conduct of the defendant. See also, Fuller v. Roberts, 35 Fla. 110, 17 So. 359 (1895). In this regard, it is not improper and therefore not duress to threaten what one has a legal right to do. Spillers v. Five Points Guaranty Bank, 335 So.2d 851 (Fla. 1st DCA 1976), and cases and authorities cited; Scutti v. State Road Department, 220 So.2d 628, 630 (Fla. 4th DCA 1969). To the extent that any action of the city brought about Ms. Kory’s resignation, it was obviously and only her proposed discharge. But it is undisputed that the city had the perfect right to do just that, fire Ms. Kory as a then-probationer without cause. See, City of Miami v. Fraternal Order of Police, 378 So.2d 20 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1113 (Fla.1980). The only aspect of that anticipated action which was arguably improper was the means by which it was about to be effected, that is, by Mr. Surana, rather than the head of the department. It was demonstrated, however, that this irregularity had absolutely nothing to do with Ms. Kory’s decision to resign. To carry the burden of establishing the required causal connection between the unlawful conduct of the defendant and a resulting coerced action of the plaintiff, Ms. Kory would have had to show that she would not have resigned if the memo had been executed by the proper official, and thus that she was forced into resigning by the fact that it was signed by the wrong one. The record shows the exact opposite. Ms. Kory was not aware of the procedural deficiency and her actions were completely unrelated to its existence. A voluntary action cannot be deemed the result of duress because the surrounding transaction involves a technical impropriety which is discovered long afterwards and which has no influence on the result. See, Mills v. Forest Preserve Dist. of Cook County, 345 Ill. 503, 178 N.E. 126 (1931).

Even if, as it did not, the “improper” feature of the discharge had something to do with the resignation, the actions of Sura-na could not be deemed coercive. As the trial judge found, he was totally unaware of the contrary rule, and believed in good faith that he had the authority himself to fire the plaintiff. Thus, the principle stated as follows in 13 Williston on Contracts § 1606, at 672-73 (3d ed. Jaeger rev. 1970) is directly applicable:

[A] threat to bring a civil action or to resort to remedies available under a contract is not such duress as will justify rescission of a transaction induced thereby. This is true even though it is subsequently determined that there is no legal right to enforce the claim, provided the threat is made in good faith, i. e., in the reasonable belief that a possible cause of action exists.

Accord, e. g., Weiner v. Minor, 124 Conn. 92, 197 A. 691 (1938); Morrill v. Amoskeag Savings Bank, 90 N.H. 358, 9 A.2d 519, 524 (1939). In submitting a memo he sincerely believed was effective to terminate her, Su-rana simply did nothing wrongful toward the plaintiff, which could vitiate her subsequent decision to resign.

Approaching the issue from a somewhat different point of view, the plaintiff’s position is really that the anticipated discharge was in breach of the civil service rules. If that were so, she had a perfectly satisfactory remedy for reinstatement in the courts, just as did the plaintiff in the case upon which she so heavily relies, City of Hialeah v. Stola, supra. The rule is, however, that threatened action cannot constitute duress, when there are adequate legal remedies available with which to challenge it. E. g., Hartsville Oil Mill v. United States, 271 U.S. 43, 46 S.Ct. 389, 70 L.Ed. 822 (1926); Vines v. General Outdoor Advertising Co., 171 F.2d 487 (2d Cir. 1948) (per L. Hand, J.); Tri-State Roofing Co. of Uniontown v. Simon, 187 Pa.Super. 17, 142 A.2d 333 (1958). This principle is particularly applicable to employment situations such as this “because a suit will effectively supply damages or other reparation.” 13 Williston, supra, § 1621, and cases collected at 764, n. 4. Had the plaintiff desired to challenge the discharge, she should and could have done so; her choice not to take that course cannot be deemed the result of duress. See, Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584, 587 (1975) (“[Plaintiff chose to resign and accept discontinued service retirement rather than challenge the validity of her proposed discharge for cause. The fact remains, plaintiff had a choice. She could stand pat and fight. She chose not to.”) [e. o.]; C. & J. Michel Brewing Co. v. State, 19 S.D. 302, 103 N.W. 40 (1905) (tax payments made, without filing protective suit, pursuant to non-coercive request of state officials, held voluntary and not product of duress even though statutory authorization for taxes subsequently ruled unconstitutional).

In the last analysis, what Ms. Kory did was take a voluntary action which seemed like a good idea at the time. In hindsight, it turned out to have been a mistake; what she should have done was let herself be improperly fired and then inevitably win the subsequent lawsuit. But “[i]t cannot [therefore] be held that [s]he acted under duress, for, if so, every settlement of a disputed matter made under a mistake of law could be overturned.” Mills v. Forest Preserve Dist. of Cook County, supra, 345 Ill. 503, 178 N.E. at 131.

For the reasons stated, the judgment below is reversed and the cause remanded with directions to dismiss the complaint.

Reversed and remanded.

HENDRY, J., dissents.

      . The city claimed that these actions amounted to a ratification of the resignation. Our decision makes it unnecessary to address the argument that the trial judge’s rejection of this contention was erroneous.

      . § 6(d) of the City of Miami Civil Service Rules and Regulations provides:
      Said probationary employee may be returned to his former classification or, in the event he holds no permanent status in any class, may be discharged or reduced in rank at any time prior to the expiration of the probationary period upon receipt by said probationary employee of a written notice of discharge or reduction in rank from the Director of the Department, approved by the City Manager.

      . On this issue, the final judgment stated:
      It is uncontradicted that there is no mutual agreement between the CITY OF MIAMI and DELORES KORY in withdrawing her resignation. The question of whether or not the resignation was properly accepted pursuant to the rules and regulations promulgated by the CITY OF MIAMI prior to her seeking to rescind her notice of resignation has not been raised. The question to determine is whether or not the resignation was tendered by the Plaintiff under duress and therefore this Court, through its equity jurisdiction, should rescind same and hold said letter of resignation null and void.
      There are three elements necessary to show duress: (1) that one side involuntarily accepted the terms of another; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party. In more general terms it can be stated that duress is a condition of the mind produced by an improper external pressure or influence that practically destroys the free agency of a party so that the act of that party was not of her own volition. Fruhauf Southwest Garment Company v. United States, 126 Ct.Cl. 51, 111 F.Supp. 945 (1953); Herald v. Hardin, (Sup.Ct. 1928) 95 Fla. 889, 116 So. 863. The evidence in this case specifically indicates that the Assistant Director intended his memo of termination to effectively discharge the Plaintiff, that he did discuss with her the only other alternative of agency termination would be his agreement to accept her voluntary resignation, that it was the last day of her employment status as a probationary employee, that she was not apprised of the rights afforded her under the Civil Service Rules and Regulations of the CITY OF MIAMI, that she intended to seek another position with the CITY and did [not] want to jeopardize her chances of such employment, that she verbally and by written notice on April 13, 1979, stated her desire to protect what rights she had previously accrued as a probationary employee with the CITY and that pending a determination of her request for extended probationary status, attempted to relieve the pressure of being ‘fired’ by resigning in lieu of being terminated. An otherwise voluntary act can be determined to be involuntary by the totality of the circumstances that produced it. Based on the testimony and all the facts in vhis case the Court finds that the improper termination of the Plaintiff on March 30, 1979 produced an external pressure on the Plaintiff to protect her rights and her future employability so that she chose the alternative of resignation as she did not have the time or the legal counsel to be properly apprised of the defective termination notice, her rights thereunder, and thus such resignation was an action by the Plaintiff which was not voluntary but produced by government conduct which was wrongful and in contravention of the CITY’S rules and regulations. Cf. Roskos v. United States, 549 F.2d 1386, (Ct.Cl. 1977).

      . E. g., McGucken v. United States, 187 Ct.Cl. 284, 407 F.2d 1349 (1969), cert. denied, 396 U.S. 894, 90 S.Ct. 190, 24 L.Ed.2d 170 (1969); Fru-hauf Southwest Garment Co. v. United States, 111 F.Supp. 945, 126 Ct.Cl. 51 (1953), cited in the lower court’s decision.

      . The appellee lays great stress on the fact that less than an hour was available to make this decision. Since, however, the choice was formulated entirely by Ms. Kory, and was not required in any way by the employer, compare Paroczay v. Hodges, supra, it does not matter that she had only a short time to make up her own mind.

      . The appellee argues that reversal would afford “legal effect to an illegal act,” that is, the improper discharge, contrary to our admonition in West v. Board of County Commissioners of Monroe County, 373 So.2d 83, 87 (Fla. 3d DCA 1979), that this may not be permitted. This contention fallaciously fails to recognize that the discharge memo never became operative, did not end the plaintiffs employment with the city and is not directly involved in this case. We consider only the separate question of the propriety of Ms. Kory’s resignation which did have that effect.

      . Of course, the fact that she subjectively did not know the notice was technically improper makes no difference in determining the question of whether the defect constituted actionable duress, which must be considered on an ob jective basis. Coffman v. Bolger, supra.

      . If she had been able to get other employment from the city, the choice would have been the correct one.

      .The plaintiffs complaint alleged, in part, that she had acted by mistake, and it is apparent that both she and Surana were laboring under a mutual mistake of law as to his authority to discharge her. As is pointed out, however, in C. & J. Michel Brewing Co. v. State, supra, 19 S.D. 302, 103 N.W. at 41-42, mutual mistake and duress are entirely inconsistent concepts, since action taken by mistake is necessarily voluntary, and duress presupposes that the conduct is involuntary.


author: BERANEK, Judge. HURLEY, Judge,

text:
    Ronald Anthony CUCIAK, Appellant, v. STATE of Florida, Appellee.
    No. 79-1466.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1981.

      Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Ronald Anthony Cuciak, defendant in the trial court, appeals an order revoking his probation and imposing a judgment and sentence. At issue is whether a defendant in a probation revocation proceeding has the right to discovery pursuant to Florida Rule of Criminal Procedure 3.220. A secondary issue is whether a violation of discovery rules in a probation revocation proceeding requires a Richardson hearing. We answer in the affirmative as to the right to discovery. As to the necessity for an inquiry regarding prejudice, we conclude that Richardson and the cases following it are applicable in a limited sense. We also certify these matters as involving questions of great public importance.

As a result of a burglary charge, defendant was placed on probation for a period of three years. During the probationary term, he was charged with violating his probation (1) by failing to stop and remain at the scene of an accident involving death or personal injuries, in violation of Section 316.-027, Florida Statutes (1979), and by failing to leave his name and address as required by Section 316.062, Florida Statutes (1979); (2) by driving while impaired, in violation of Section 316.193, Florida Statutes (1979); and (3) by driving a motor vehicle while his license was suspended, in violation of Section 322.34, Florida Statutes (1979).

Shortly after the affidavit of violation was filed, defense counsel filed a written demand for discovery to which the State made no response. The probation revocation hearing commenced some two months thereafter. At the outset, defense counsel objected and informed the court of the unanswered discovery demand. The same objection was registered as each witness began to testify. The court denied all objections.

In Hines v. State, 358 So.2d 183,185 (Fla.1978), the Supreme Court stated:

If a probationer needs additional information in order to properly prepare a defense to the charges, the various methods of discovery under our rules are available to him.

Although this language was dictum, we cannot disregard it or the various cases dealing with discovery in violation of probation matters. See Suarez v. State, 377 So.2d 769 (Fla. 3d DCA 1979); Cioeta v. State, 367 So.2d 718 (Fla. 3d DCA 1979); and Sukert v. State, 325 So.2d 439 (Fla. 3d DCA 1976). With great reluctance, we conclude the language from Hines requires we rule that a defendant is entitled to discovery in violation of probation proceedings. Were we considering this without the Hines decision, we would hold otherwise and would be influenced by the following arguments against discovery which are listed here in catalogue fashion.

(1) Present Factual Status. Discovery is not presently conducted on any substantial basis in violation of probation matters. This case is such an example. We note that discovery would, of course, be available in any situation where the probation violation is also a substantive offense upon which the State Attorney has filed an information. Further, informal discovery by consent may occur in probation matters or the trial court may order certain limited discovery upon specific motion by defendant.

(2) Hines’ Progeny. The eases citing the Hines decision on this issue are not definitive. In Suarez v. State, supra, and Cioeta v. State, supra, the court relied upon Hines but did not actually discuss the issue of whether discovery was a right. Instead, the court considered the matter solely as a question of whether the defendant had demonstrated prejudice. In Cioeta, supra, 719, the court concluded that a discovery violation by the State required an examination of the record “to see whether he [defendant] was given a full opportunity to explain away the accusation against him.” Although Hines has been in existence since April, 1978, it apparently has not substantially changed the procedures followed prior to its issuance.

(3) Rules of Criminal Procedure. Generally, with specific limited exceptions, the rules of criminal procedure are not applicable to violation of probation matters. See Rule 3.790 which governs probation. This rule is within Subsection XIV, which is entitled “Sentence.” All of the procedures for a revocation and sentence are contained within a single paragraph which does not mention discovery.

(4) Subsection VI, Rule 3.220 — Discovery. The rules of criminal procedure contain a subsection on discovery, Rule 3.220. A reading of this rule leads us to the conclusion that it contemplates a trial context. It is based on the American Bar Association Standards for criminal justice relating to discovery and procedure before trial which do not provide for discovery in a probation revocation proceeding. Indeed, the ABA Standards on Probation themselves make no mention whatsoever of discovery. Thus the source documents used by the Committee in preparing Rule 3.220 inferentially indicate that discovery in probation matters was not contemplated. Furthermore, the entire rule is written in terms of the "indictment or information” and the “offense charged” therein. The prosecuting attorney is directly involved, while in probation matters the probation officer is generally the person submitting the affidavit upon which the trial court issues a warrant. Section VI, containing Rule 3.220, is the only section of the rules of criminal procedure pertaining to discovery.

(5) Distinctions: Trial versus Probation Revocation. There are major distinctions between a criminal trial and a violation of probation proceeding. Indeed, there are very few similarities. Probation revocation is an informal hearing with no right to a jury trial. The charging affidavit need not meet the same strict requirements as an indictment or information. The informal nature of the proceedings permits deviation from the strict rules of evidence; consequently, the admission of hearsay is not error. Moreover, the burden of proof is entirely different. It is only necessary to satisfy the conscience of the court. The speedy trial rule does not apply and probation revocation occurs on a totally different time schedule from that of a criminal trial. Revocation may be based on non-criminal acts and the defendant may be required to take the stand and testify to the non-criminal conduct. Neither double jeopardy concepts nor the exclusionary rule applies, so evidence seized in violation of defendant’s constitutional rights may be admitted against him. There is no right to pre-hear-ing bail and a defendant may be required to remain incarcerated pending a hearing.

See generally, Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Bernhardt v. State, 288 So.2d 490 (Fla.1974); Roberts v. State, 154 So.2d 695 (Fla.1963); Brill v. State, 159 Fla. 682, 32 So.2d 607 (Fla.1947); People v. DeWitt, 78 Ill.2d 82, 34 Ill.Dec. 319, 397 N.E.2d 1385 (Ill.1979); Sections 947.23, 948.06, and 949.11, Florida Statutes (1979); and Florida Rule of Criminal Procedure 3.220.

The discovery envisioned by Rule 3.220 is time consuming. Upon written demand by the defense, the State must disclose the names of its witnesses and statements within fifteen days; defense counsel must make a reciprocal disclosure to the prosecutor within an additional fifteen days. The filing of a motion for protective order automatically stays these time periods. The taking and typing of depositions and even minimal discovery under Rule 3.220 could require at least forty-five days during which defendant could be incarcerated awaiting discovery and a hearing.

(6) Richardson Inquiry — Per Se Reversal. If discovery rules apply to violation of probation proceedings, then arguably the requirements of Kilpatrick v. State, 376 So.2d 386 (Fla.1979), Cumbie v. State, 345 So.2d 1061 (Fla.1977), and Richardson v. State, supra, also apply, requiring almost automatic reversal when the necessary Richardson inquiry is not made. This would have the effect of transforming an informal proceeding into a greatly more formal and structured matter.

(7) Other Courts. There is a dramatic absence of authority on the subject of discovery in violation of probation matters. We have located only one case on the subject, which, surprisingly, is directly on point. People v. DeWitt, supra, an opinion by the Supreme Court of the State of Illinois, addresses and answers in the negative the precise question of whether a defendant is entitled to discovery in violation of probation matters. The Illinois Supreme Court reasoned that due process does not guarantee pre-trial discovery to a criminal defendant even before trial, much less before a probation revocation hearing. The Illinois court also analyzed the defendant’s assertion of entitlement to discovery pursuant to court rules of procedure existing in that State and concluded there was no such right. The Court stated as follows 397 N.E.2d at page 1386:

Defendant further contends that the language of Supreme Court Rule 411 (58 Ill.2d R. 411) grants a probationer the discovery provided in Supreme Court Rule 412 (65 Ill.2d R. 412). Rule 411 provides that the discovery rules “[sjhall be applied in all criminal cases wherein the accused is charged with an offense for which, upon conviction, he might be imprisoned in the penitentiary. They shall become applicable following indictment or information and shall not be operative prior to or in the course of any preliminary hearing.” Although a determination that a probationer has violated the conditions of his probation may result in a sentence to the penitentiary, that sentence is imposed for the original offense of which he had been convicted rather than for the conduct constituting violation. If the acts which violated the probation also constitute a criminal offense, the State may, of course, prosecute the probationer for that offense (People v. Howell (1977), 46 Ill.App.3d 300, 302, 4 Ill.Dec. 837, 360 N.E.2d 1212; People v. Kondo (1977), 51 Ill.App.3d 874, 876, 9 Ill.Dec. 479, 366 N.E.2d 990), and, if it does, he would then be entitled to the discovery provided by Supreme Court Rule 412 (65 Ill.2d R. 412). While our discovery rules do not specifically exclude probation- or parole-revocation hearings, it is quite clear that they were designed for use in connection with criminal trials. Those rules apply to the probationer’s trial on the underlying offense, but a petition to revoke probation is not a criminal indictment or information and a judgment revoking probation is not a felony conviction. (People v. Howell (1977), 46 Ill.App.3d 300, 302, 4 Ill.Dec. 837, 360 N.E.2d 1212; People v. Kondo (1977), 51 Ill.App.3d 874, 876, 9 Ill.Dec. 479, 366 N.E.2d 990.) In fact, the revocation of probation may occur for conduct which does not even involve the commission of any crime. We accordingly hold that Rule 411 does not entitle a probationer to discovery at a probation-revocation hearing.

People v. DeWitt, supra, and Hines v. State, supra, are simply irreconcilable to the extent that the dicta in Hines establishes the right to discovery.

In view of Hines v. State, supra, we conclude that a right to discovery exists in violation of probation proceedings; therefore, the court erred in the proceedings below. We now address the question of whether the error was prejudical and whether a Richardson inquiry was necessary.

Although defendant objected to the State’s failure to give discovery, the court simply overruled the objection without argument and made no inquiry whatsoever. Clearly, if applicable, Richardson and its progeny were violated. We hold that if a discovery violation by the State occurs in a probation proceeding, the defendant has the burden of bringing the violation to the court’s attention in a timely manner. The trial court should then make an inquiry in the nature of that required by Richardson and, if necessary, take steps to require appropriate discovery by the State. However, a discovery violation will not require reversal of a probation revocation unless it appears from a consideration of the entire case that the defendant was prejudiced. We refuse to apply the Richardson rationale to probation violation proceedings insofar as these cases require per se reversal. In view of the informal nature of a probation revocation hearing, the lack of double jeopardy and speedy trial considerations, and the ease of continuing such proceedings to allow for discovery, there seems no reason to extend the per se reversal rule of Richardson and its progeny to probation revocation. Instead, we will review each case to see whether defendant has in fact been prejudiced and defendant will have the burden of showing prejudicial error on appeal.

We conclude that these matters are of great public importance, and, therefore, certify the following questions to the Supreme Court.

I.

IS A DEFENDANT IN A VIOLATION OF PROBATION PROCEEDING ENTITLED TO FULL DISCOVERY UNDER THE FLORIDA RULES OF CRIMINAL PROCEDURE?

II.

IF DISCOVERY IS AVAILABLE IN A VIOLATION OF PROBATION PROCEEDING, IS A RICHARDSON INQUIRY REQUIRED AS TO NON-COMPLIANCE?

The revocation of probation below is affirmed in part. We conclude after a review of all the evidence that the defendant has not demonstrated prejudice. The witnesses were the victim of the accident, two police officers, and the defendant’s probation officer. The affidavit charging the violation was quite detailed and named the victim and the probation officer. The police officers’ names were present on the accident report. Here, defense counsel simply filed a general demand for discovery and took no other steps to secure discovery or compliance. Even at the hearing there was no request for the information. We conclude that the appellant has failed to show prejudicial error and thus affirm in part.

Appellant also raised an issue as to the finding of guilt on Count III — driving with a suspended license — which we find meritorious. This violation was established solely by hearsay and is thus reversed. Reeves v. State, 366 So.2d 1229 (Fla. 2nd DCA 1979), and Combs v. State, 351 So.2d 1103 (Fla. 4th DCA 1977). We thus reverse the Count III finding but affirm the conviction and sentence as based on the two other substantial violations.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY, J., concurs.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

specially concurring.

I concur in the court’s judgment that discovery is available in probation revocation hearings, that a Richardson inquiry should be held to evaluate discovery violations, and that the failure to do so is not per se reversible error. Nonetheless, I disagree with the court’s expressed skepticism as to the wisdom of Hines v. State, 358 So.2d 183 (Fla.1978). Aside from the fact that Hines is the law of the state and entitled to more than begrudging acceptance, it represents, in my view, an enlightened and logical advance in Florida’s jurisprudence.

Long ago we recognized the underlying principle of all discovery — that trial by ambush is so unfair as to be violative of due process. Consequently, our Supreme Court promulgated rules of criminal procedure which permit the broadest type of discovery. With this background, it is hardly surprising that the Court saw fit to extend the protections of discovery to the probation revocation process.

Nearly three years have passed since Hines was handed down, and it is fair to say that the courts have not experienced a deluge of Hines -related appeals. Discovery in probation hearings simply is not a burning issue. And the reason for this lack of interest is readily understandable. Experience shows that most acts which violate probation also violate statutory law. It is not unusual for a perpetrator to be subject to probation revocation as well as criminal prosecution. In these circumstances, Hines is unnecessary for the probationer/defendant has recourse to the regular channels of discovery. Therefore, while I hesitate to suggest that the majority’s fears are totally unfounded, I do believe they are vastly exaggerated.

Part of the court’s concern today stems from the fact that Illinois and Florida are at odds on this issue. While a difference in policy merits consideration, it should not force us to abandon a progressive rule. Diversity has its own benefits as Justice Bran-déis noted in his dissent in New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386-87, 76 L.Ed. 747 (1932).

It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

Brandéis, of course, was addressing the problems of an earlier era, but surely the recent reforms in the criminal justice system have taught us that there is a value in seeking new and better ways to promote the administration of justice. We are not, nor should we be, molded to the past.

The majority draws further support for its position by listing the differences between a criminal trial and a probation revocation proceeding. The latter, we are told, is more informal with a lesser burden of proof required for conviction. Ante, at 502. This is true, but I fail to see how such distinctions militate against expanded discovery; if anything, they underscore its necessity. Admissible hearsay and a lesser standard for conviction are far more palatable and just when there is pre-hearing discovery.

A more difficult question is whether the failure to conduct a Richardson inquiry should require automatic reversal. This is the present rule in the trial process and there is ample justification to apply the same rule to the probation revocation process. Discovery, after all, is a basic right. It is an aspect of notice, an element of due process which by virtue of Bernhardt v. State, 288 So.2d 490 (Fla.1974) and Hines v. State, supra, is applicable to probation revocation proceedings. Though a trial court has broad discretionary power to revoke probation, Bronson v. State, 148 Fla. 188, 3 So.2d 873 (Fla.1941), this discretion must be exercised in accordance with due process requirements. Richardson merely assures compliance with this principle by requiring an inquiry into the cause of a discovery violation, together with an assessment of its importance and its impact. It has the added benefit of encouraging remedial action, for example, allowing counsel to talk with or depose a witness during a court recess, which often cures the defect and avoids further litigation. Equally important, Richardson assures meaningful appellate review. It is “essential that the circumstances establishing non-prejudice to the defendant affirmatively appear in the record.” 246 So.2d at 775.

Viewed in this context, Richardson is not a meaningless procedural straightjacket. Rather, it is a valuable prerequisite to the informed exercise of a trial court’s discretion. Its benefits are the same, irrespective of the nature of the proceeding. Thus, I fully concur in the holding that a Richardson inquiry should be held to evaluate discovery violations in the probation revocation process.

The question remains, however, whether the trial court’s failure to conduct a Richardson hearing should require automatic reversal. I am not at all persuaded by the court’s reasoning that a per se reversal rule “would have the effect of transforming an informal proceeding into a greatly more formal and structured matter.” Ante, at 503. In my view, it is our holding that a Richardson inquiry must be held which adds to the formality and structure of the proceeding; an automatic reversal rule has little or no impact on formality. Nonetheless, I join with the court in holding that the failure to conduct a Richardson hearing should not result in an automatic reversal. I do so because I believe there is an obvious value in avoiding such per se rules whenever possible. Every day the appellate courts are called upon to assess error; I see no reason to except discovery violations from the court’s scrutiny. Though a Richardson hearing is helpful to appellate review, it is not indispensable. One can envision instances where the admitted testimony is of no benefit whatsoever. To mandate reversal in these situations merely because the trial court failed to conduct a hearing, would not comport with concepts of judicial economy or the sound administration of justice. Therefore, I believe we should permit appellate courts to determine on a case-by-case basis whether the failure to conduct a Richardson hearing was harmless error. To this end, we should employ a standard which holds that the failure to conduct a Richardson hearing will be deemed reversible error unless an appellate court can declare a belief to the satisfaction of its conscience that the error was harmless. Cf. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 711 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Clark v. State, 363 So.2d 331 (Fla.1978). The flexibility of this standard should ensure a just result without undermining today’s holding.

Finally, I cannot agree with the majority’s formulation that despite the trial court’s failure to conduct a Richardson inquiry, “defendant will have the burden of showing prejudicial error on appeal.” Ante, at 504. As I have indicated, the burden should rest squarely on the shoulders of the state to prove that the error of failing to conduct a Richardson hearing was harmless to the satisfaction of the conscience of the court.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . Despite this fact, the Florida Supreme Court has authorized other forms of discovery. See Eutsey v. State, 383 So.2d 219 (Fla.1980), dealing with disclosure of information during sentencing proceedings.

      . Under Richardson and Cumbie, supra, a discovery violation requires an appellate court to reverse a conviction unless the trial court inquires into all the circumstances surrounding the breach and a finding is made that no prejudice to defendant resulted from the violation. In this inquiry the State has the burden of showing an absence of prejudice. Where no such inquiry is undertaken reversal is required as a matter of law and defendant need not demonstrate prejudice on appeal.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . See Rule 3.220, Fla.R.Crim.P.

        .Kilpatrick v. State, 376 So.2d 386 (Fla. 1979); Cumbie v. State, 345 So.2d 1061 (Fla. 1977); Johnson v. State, 312 So.2d 231 (Fla. 2d DCA 1975).


author: LETTS, GAVIN K., Associate Judge. BERANEK, JOHN R., Associate Judge,

text:
    Barbara WHELAN, Individually and as mother and natural guardian of Jason Whelan, a minor, on behalf of Barbara Whelan and Jason Whelan, a minor, Appellants, v. DACOMA ENTERPRISES, INC., a Foreign Corporation, Ronald Stewart, Judith Stewart, Norma Poole, Stanley Poole, Michael Glantz and Gretchen Glantz d/b/a St. John’s Village, II, Ltd., and Commerce & Industry Insurance Company, an Insurance Corporation, Appellees.
    No. 78-1285/NT4-91.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 1981.

      Elizabeth J. Gulden of Blackburn, Gibson & Gulden, Orlando, for appellants.
    A. Craig Cameron of Gosney, Cameron & Parsons, Daytona Beach, for appellees.
   LETTS, GAVIN K., Associate Judge.

At issue here is the extent of a landlord’s liability for criminal violence perpetrated against a tenant by a third party who is not an employee, agent or representative of the landlord. The trial judge granted a motion to dismiss the tenant’s fourth amended complaint with prejudice because there is “no legal precedent either at common law, by case law, or through statute for the allowance of [such] a cause of action ...” We disagree and reverse.

The complaint alleged that an assailant forced entrance into the tenant's locked apartment, and raped and assaulted her in the presence of her young son who was also assaulted and battered. It was further alleged that the tenant and her son were lessees, tenants and business invitees upon the premises in question; that the landlord knew, or should have known that for a long period of time prior to this outrage there had been numerous incidents of criminal activity on the premises, including burglaries, breakings and enterings of the dwelling units, and numerous violent crimes against persons occurring both inside and outside the individual units. It is then alleged, inter alia, that the landlord owed the tenant a duty to use ordinary and reasonable care to provide security by furnishing safely constructed doors and reasonably safe locks. The landlord, so it is alleged, undertook to control the security system by forbidding the installation of any locks on the exterior apartment door without the explicit consent of the landlord. Thus, it is alleged that the landlord was in control and responsible for the types and number of locking devices on the doors of the individual dwelling units. Notwithstanding that duty, and in breach thereof, it is alleged that the assailant was able to gain entry into the tenant’s apartment due to unsatisfactory defective and ineffective locks on the exterior apartment door and/or because of the existence of unlimited passkeys.

There is a dearth of Florida law on this subject, but we agree with the trial judge that a landlord should not normally be held responsible for criminal acts committed by strangers and generally is not an insurer of, and has no duty to protect, the safety of his tenants, 43 A.L.R.3d 331 et seq. at 335. Were we to hold otherwise, each victimized tenant would sue his landlord every time a rape, murder, assault, arson, robbery or burglary occurred on or about any leased premises, be they single, multi-family or commercial.

There is very little said in the complaint about the actual relationship of the parties. In paragraph two it is alleged that “the Plaintiff, BARBARA WHELAN, resided at ... St. Johns Village.” In paragraph three it is alleged that the defendants, a corporation and five individuals, were “operating” St. Johns Village. In paragraph four it is alleged that the plaintiffs were lessees, tenants and business invitees on the premises of St. Johns Village. From such allegations it is difficult to tie down the exact status of the parties and their relationships and it becomes important to note what this complaint does not allege. For instance there is no allegation of a violation of a statute such as the landlord-tenant laws. We further observe no allegation as to any violation or breach of a lease for a term certain, nor is one attached to the complaint. Moreover, there is no allegation of a violation of any implied contract arising out of the relationship of landlord and tenant.

We are not unaware of the recent decision out of the Third District written by Judge Schwartz. Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla.3d DCA 1980). In Holley there is a specific reference to a “contractual responsibility” to provide armed guards arising out of an apportionment of the rental payment for this very purpose. There is no such allegation in the case now before us and we find this to be a vital distinction.

Nor do we construe Drake v. Sun Bank & Trust Co., etc., 377 So.2d 1013 (Fla.2d DCA 1979) to be contrary to our conclusion. In fact we see it as supportive thereof although some of the dicta might indicate otherwise. We also note a recent decision from the Supreme Court of Illinois, Pippin v. Chicago Housing Authority, 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596 (1979).

Nonetheless, because the allegations in sum appear to support the presence of actual latent defects in the existing lock, keys and bolt mechanism unknown to the tenant, and known to the landlord, we conclude that the complaint stated a cause of action in this regard grounded in negligence. See Butler v. Maney, 146 Fla. 33, 200 So. 226 (1941); Mansur v. Eubanks, 368 So.2d 645 (Fla.1st DCA 1979). The landlord’s brief repeatedly alludes to the fact that the tenant had been offered a dead bolt lock at reasonable cost and this, as well as other circumstances, may well later support a motion for summary judgment. However, such allusions are impertinent to any examination of the complaint.

This cause is reversed in accordance herewith.

REVERSED AND REMANDED.

DOWNEY, JAMES C., Associate Judge, concurs.

BERANEK, JOHN R., Associate Judge, dissents with opinion.

BERANEK, JOHN R., Associate Judge,

dissenting.

In addition to the elements of the cause of action noted in the majority opinion, I would also require that there be a substantial breach of the contractual duties assumed by the landlord under the lease and that the plaintiff’s injuries be caused by this breach. I would further require that such injuries be reasonably foreseeable to the landlord under all of the circumstances.

I believe the cause of action asserted here is not purely in tort. The entire relationship between the parties and all of their rights and duties may be substantially altered and changed by what they voluntarily choose to contract for in the lease. I submit it is an oversimplification to consider in the abstract whether the landlord exercised reasonable care to protect plaintiff from criminals. The first inquiry should be to determine what the landlord agreed to (expressed or implied) in the lease. In the present case, there are no allegations as to the existence of a lease nor as to any of its terms or a breach thereof. I would hold the absence of such allegations fatal to the plaintiff’s claim. Unfortunately, crime is a reality in our society today, and landlords should not be singled out to bear a special responsibility for it.

      . No written lease is attached to the complaint and we assume there is none.

      . Other than the bald statement that the tenant was a lessee, tenant and business invitee.

      . The Pippin case also noted that the statutory language calling for the landlord to provide “decent, safe and sanitary dwellings” should not be construed to require protection against criminal activity, Id., 35 Ill.Dec. at 533, 399 N.E.2d at 599 [see § 83.51, Fla.Stat. (1979) for comparison] and grounded its holding on a contractual agreement to provide guard services.


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

text:
    In re the ESTATE OF Richard KLOTZ, Deceased. Joan Elaine CREPEAU, Appellant, v. Ruth PIKE, Appellee.
    Nos. 79-113, 79-263.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 1981.
    John R. Howes of J. Russell Hornsby, P. A., Orlando, for appellant.
    James N. Powers, P. A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, pursuant to rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure, appeals an order granting a probate claimant’s petition to enforce payment of her claim. We dismiss sua sponte.

On April 29, 1978, Richard Klotz was killed and passenger Ruth Pike, appellee, was injured in an automobile accident which resulted from the alleged negligent operation of a motor vehicle driven by Klotz. On March 2, 1979, appellee instituted suit against appellant who was personal representative of the estate. Four days later, appellee filed a statement of claim against the Klotz estate. Appellant did not file a timely objection to the claim as provided in section 733.705, Florida Statutes (1979). Under this statute, appellant had four months from the first publication of notice of administration (January 14, 1979), within which to file an objection and this period expired on May 14,1979. Appellant did, however, file an answer in the civil suit which denied liability.

On July 24,1979, appellee filed a petition to enforce payment alleging that the claim was due and not contingent. Appellant responded to the petition alleging the existence of the suit. Copies of the pleadings were attached to the response.

The court, on August 22, 1979, entered the order appealed which provided:

[T]hat the claimant’s petition to enforce statement of her claim be and the same is hereby granted and an independent hearing shall be held wherein the claimant shall present her case in support of her claim.

The question we consider is whether an appeal will lie from this order.

The instant claim was clearly contingent as appellee well knew. This is reflected by institution of suit even before filing her claim. In In re Estate of Shaw, 340 So.2d 491, 492 (Fla.3d DCA 1976), the court declared:

A contingent claim such as that of appellant against an estate is one where the liability depends upon some future event which may or may not happen (i. e. in the the case sub judice, whether appellant prevails in her suit in the civil division) and, which, therefore, makes it wholly uncertain whether there ever will be liability.

We can only speculate as to whether the “independent hearing” specified in the order is the same as the “independent action” required by the statute 733.705(3), Florida Statutes (1979). The order also does not reflect whether the court intended only the question of damages to be determined in that hearing or whether the question of liability was also to be resolved.

The purpose of an objection as stated in Unger v. Hessen, 373 So.2d 954 (Fla.3d DCA 1979), is to shorten the time within which a proceeding must be commenced. Therefore the requirement that appellant file an objection was an empty exercise and would accomplish nothing because the suit which the objection would precipitate was already in progress.

Appellant has brought this appeal under Rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure, which provides for review of non-final orders which determine liability in favor of a party seeking affirmative relief. While the parties, by their actions, have obviously concluded that liability has been determined, this does not appear from the record or the order appealed. The trial court may very well have intended the “independent hearing,” referred to in the order, to be the trial of the suit now in progress in which liability is in issue.

Therefore, we conclude that the appeal is premature and dismiss sua sponte.

DAUKSCH, C. J. and COWART, J., concur.

      . On August 21, 1979, appellant did file an objection to the claim and subsequently moved the court for an extension of time to permit the objection to be filed. The court denied this request. The time limitation prescribed in section 733.705(2), Florida Statutes (1979), for the filing of objections to claims may be relaxed upon a showing of “good cause.” Section 733.-705(3). See In re Estate of Sale, 227 So.2d 199 (Fla. 1969); In re Estate of Dudley, 374 So.2d 1111 (Fla. 4th DCA 1979). Here appellant has failed to produce facts establishing “good cause” which would have justified an extension.

      . A timely objection had been filed in the cited case.


author: McCORD, Judge.

text:
    MANOR DINNER THEATRES OF AMERICA, INC., d/b/a Alhambra Dinner Theatre, Appellant, v. Theodore S. JOHNSON, Appellee.
    No. SS-231.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1981.
    Rehearing Denied March 18, 1981.
    Peter D. Webster of Bedell, Bedell, Ditt-mar & Zehmer, Jacksonville, for appellant.
    Barry L. Zisser and Norwood S. Wilner of Zisser, Robison & Spohrer, Jacksonville, for appellee.
   McCORD, Judge.

This appeal is from a final summary judgment granting appellee’s motion therefor to enforce an arbitration award. The summary judgment ratified a monetary award in favor of appellee and entered judgment. We affirm.

Appellant discharged appellee, manager of its dinner theatre in Jacksonville, and then filed suit against appellee alleging that appellee had diverted funds from appellant corporation for his personal benefit. Appellee moved to dismiss that action on the ground that appellant’s sole remedy was by recourse to arbitration as provided in the employment agreement between appellant and appellee. The court treated appellee’s motion to dismiss as a request for arbitration pursuant to the employment agreement between appellant and appellee. The agreement provided that “termination of employment for good cause” shall be determined by arbitration as set forth in paragraph 12 thereof and that the parties shall be bound according to the terms set forth in that paragraph. Paragraph 12 provides:

The parties hereto do agree that any differences, claims or matters in dispute arising between them out of this agreement or connected herewith shall be submitted by them to arbitration by a committee of three (3) persons chosen as follows:
The corporation shall choose one arbitrator, the manager shall choose one arbitrator, and the two arbitrators so chosen shall choose a third arbitrator, and the three arbitrators so chosen shall hear all and any differences, claims, or matters in dispute arising out of this agreement or connected herewith. The findings of the arbitrators on any such matter shall be final and absolute, and the parties hereto agree to be bound by such arbitration. In the event either party fails or refuses to appoint an arbitrator as herein set out and continues such nonperformance for a period of ten (10) days after formal request in writing so to do, then the arbitration may be completed by those complying parties without the joinder of the noncomplying party, and such arbitration shall be binding upon all parties to this agreement.

After entry of the order directing arbitration, by letter of February 1, 1978, appel-lee’s attorney, Barry L. Zisser, asked appellant’s attorney, Joseph M. Gliekstein, Jr., if, in view of appellee’s dire financial circumstances, they could agree to one arbitrator hearing the case as opposed to three. Gliekstein, by his letter of February 6,1978, responded suggesting that Stephen Werber be designated as arbitrator. Then by letter of February 8, 1978, Zisser responded suggesting that C. Ray Greene, Jr., be designated as the arbitrator. By his letter of the following day, Gliekstein responded, stating that he could not agree to Greene because he had been representing Greene’s wife in connection with marital disputes. From then until November 16, 1978, there was no further correspondence between the two attorneys relating to the appointment of arbitrators, but there was correspondence during that period related to possible settlement of the controversy. Then, in his letter of November 16, Zisser submitted to Glick-stein the name of C. Ray Greene, Jr., as appellee’s arbitrator if his last settlement offer was rejected, requested confirmation from appellant’s attorney as to the name of appellant’s arbitrator and stated that he would submit to him a list of dates compatible with the schedules of Greene and his clients for the taking of testimony. Glick-stein’s letter of November 21, 1978, stated: “You will recall that we appointed Stephen A. Werber as plaintiff’s arbitrator some months ago.” Then followed a statement regarding the settlement negotiations. This was followed by Zisser’s letter of November 29 reiterating that appellee had appointed Greene as his arbitrator some months ago and further referred to settlement. Then followed settlement letters from Gliekstein on November 30 and Zisser on December 13, 1978.

The next correspondence was a letter from Zisser to Gliekstein dated March 19, 1979, stating that he had attempted to set the matter for arbitration with Gliekstein “on not less than 10 separate occasions in the last 120 days.” He further stated, “Because of my client’s demands that this matter proceed without any other unnecessary delays, you are to consider this letter as a formal notification to you of our request to arbitrate immediately.” He further stated, “I am, therefore, taking the liberty of enclosing herewith certain dates which are available on my calendar to utilize for securing the arbitrators attendance. As I advised you previously, my arbitrator will be C. Ray Greene, Jr., and I understand yours is Stephen Werber. Would you please confer with your arbitrator so that we can resolve this matter once and for all and establish a full day for this hearing.” Then on April 9, 1979, Zisser again wrote Gliekstein advising that he had been unable to secure any responses from him with regard to Zisser’s request for arbitration. Then on May 7, 1979, Zisser wrote Glick-stein as follows:

Another month has now elapsed and still I have not received any information from you with regard to a convenient date for the arbitration proceedings. I would like you to advise me once and for all of your client’s intentions in this matter. I feel that my good nature has been severely compromised and, further, that you are taking advantage of our friendship. For that reason, I must insist that some response, other than the acknowledgment of my letter, be received.

Gliekstein returned this letter to Zissner with the word “baloney” written at the bottom of it.

By his letter dated May 8, 1979 (sent certified mail, return receipt requested), Zisser stated to Gliekstein:

Although I have written 18 letters to you demanding your compliance with the request for the establishment of an arbitration proceeding, you have chosen to disregard and ignore the same. I am therefore advising you that I intend to proceed with the establishment of the arbitration hearing, using only the arbitrator selected by Mr. Johnson, under the provisions granted in the contract. As a result of our decision, I will, although not compelled to do so, send to you a copy of the arbitrator’s decisions rendered.
I will withhold the issuance of the notice to my arbitrator, allowing you to comply with the contract, until 5:00 o’clock p. m., Friday, May 11, 1979.
If I have not heard from you by that time, I intend to proceed unilaterally under the provisions as granted in the Employment Agreement.

The return receipt showed this letter was received on May 10, 1979.

In an affidavit of Werber filed in the cause, he states that during late January or early February 1978 he was contacted by Glickstein who requested that he accept an appointment as an arbitrator in the controversy and that he accepted it; that thereafter he was never contacted by appellee’s arbitrator Greene; that he was at all times ready, willing, and able to meet with Greene, designate an umpire and proceed with arbitration proceedings. In his testimony taken at the hearing on the motion for summary judgment, Werber testified as follows in answer to the following question:

Q. All right, sir. From that date, whenever it was, late January or early February, until and including June of 1979, had you had any further contact at all from Mr. Glickstein with regard to this appointment as an arbitrator?
A. Not that I can recall. Except maybe for a few months afterward, whenever the date was — it was January or February of ’78. Sometime afterwards he reiterated that I would — would I be the arbitrator, or I’m going to be the arbitrator. Something of that nature.

In an affidavit of Zisser filed in the cause, he relates the substance of a telephone conversation he had with Werber on May 24, 1979. Appellant filed a motion to strike the affidavit on the ground that it contained inadmissible hearsay. The trial court did not rule on the motion. Appellant argues here that the motion should have been granted; that the statements of Zisser in the affidavit as to statements made to him by Werber in the telephone conversation are hearsay. We agree and give no consideration to the alleged statements of Werber.

Without any response from Glickstein to Zisser’s letter on May 8, 1979, and to Zis-ser’s repeated entreaties to move forward with the proceedings, the arbitration hearing was held without further notice pursuant to the May 8 letter by the single arbitrator Greene subsequent to May 24, 1979 (the record does not show thé date), and the arbitrator entered his award on May 31, 1979.

Thereafter, on June 11, 1979, Zisser served a copy of notice of hearing of his motion to enforce the award of the arbitrator on Glickstein and requested by memo to be advised if Glickstein would like to attend the hearing. By Glickstein’s letter of June 13, 1979, to Zisser, he stated that he would oppose the motion for enforcement of the award; that he believed the arbitration proceedings conducted unilaterally by Mr. Greene were invalid. He mentioned that an examination of the original court file discloses the entry of an order of dismissal on February 19, 1979, and he stated:

As you already know, the decision not to participate was based squarely on the fact that the litigation had come to an end and that no action was pending after the expiration of the 30-day appeal period.

By the foregoing letter, Glickstein acknowledged on behalf of his client that he had no intention of his client taking part in the arbitration proceedings. It does not appear that appellant, either in the trial court or here on appeal, has contended that the arbitration proceedings were invalid because of the dismissal of the original proceeding out of which arbitration was ordered. The summary judgment here on appeal was entered on appellee’s complaint filed June 29, 1979, to enforce the arbitration award.

Appellant contends that the trial court erred (1) in confirming the award of the single arbitrator since the procedure for selection of arbitrators was not followed; (2) in confirming the award despite undisputed testimony that the arbitrator appointed by appellant was not present at the only arbitration hearing held; (3) in refusing to set aside the arbitration award for failure to give proper notice of the arbitration hearing; and (4) in failing to vacate the award because it violated constitutional due process.

Waiver and estoppel are established doctrines in the field of arbitration. City of Manitowoc v. Manitowoc Police Department, 70 Wis.2d 1006, 236 N.W.2d 231 (1975); see also 5 Am.Jur.2d, Arbitration and Award § 112. Also compare Maine Cent. R. Co. v. Bangor & Aroostook R. Co., 395 A.2d 1107, 1122 (Maine 1978). Further, as was stated by the Supreme Court of Washington in Puget Sound B. & D. Co. v. Lake Washington Shipyards, 1 Wash.2d 401, 96 P.2d 257 (1939):

Complementary to this absolute right to be heard, to which the parties are entitled in arbitration proceedings, is the right, found in the doctrine of waiver, to excuse its performance. That doctrine is one of the most familiar in the law, is of general application, and extends to rights and privileges of every character.
A right which one may enforce or insist upon, he may also repudiate or relinquish. Although the relinquishment must be voluntary and intentional, it may be either express or implied. It may arise from an express declaration of an intention not to claim the right, or it may be the result of acts or conduct which are inconsistent with the continued assertion of the right in question. The authorities cited above recognize the application of this doctrine to matters pertaining to the rights of persons concerned in arbitration proceedings. This court, in common with all others, has recognized it...

By his actions (or nonaction) Mr. Glickstein waived appellant’s right to be heard and impliedly revoked or waived his previous designation of Mr. Werber as appellant’s arbitrator. Under these circumstances, arbitrator Greene was authorized under paragraph 12 of the Employment Agreement to proceed as sole arbitrator without further notice to appellant. The record shows that over a considerable period of time, Mr. Glickstein stonewalled all attempts of Mr. Zisser to move the arbitration proceedings to a hearing and conclusion. In addition, Mr. Glickstein has not contended and the record does not show that prior to the entry of the arbitration award, he ever made any objection (to arbitrator Greene or Mr. Zis-ser) as to the procedure which Mr. Zisser had advised him would be followed. He was given full opportunity by Mr. Zisser to make such objection and to arrange for his arbitrator to participate. Not only did he not contact Mr. Zisser or Mr. Greene regarding the matter, but his letter of June 13,1979, to Zisser clearly shows that he had no intention of participating in the proceeding.

AFFIRMED.

WENTWORTH, J., and LILES, WOOD-IE A., (Retired) Associate Judge, concur.

      . This eliminates any necessity that we consider on our own motion whether or not Mr. Zisser should have at that point withdrawn as counsel for appellee under DR5-102, Code of Professional Responsibility. See Live & Let Live, Inc. v. Carlsberg Mobile, 388 So.2d 629 (Fla. 1st DCA 1980).