text:
    STATE OF DELAWARE ex rel. Richard S. GEBELEIN, the Attorney General, Appellant, v. FLORIDA FIRST NATIONAL BANK OF JACKSONVILLE, Edward Ball, J. C. Belin, T. S. Coldewey, W. L. Thornton, Jacksonville National Bank, T. Edward Austin, Jr., as State Attorney for the Fourth Judicial Circuit of the State of Florida, Alfred duPont Dent, William B. Mills, and the Nemours Foundation, Appellees. STATE OF DELAWARE ex rel. Richard S. GEBELEIN, the Attorney General, Appellant, v. Edward BALL, J. C. Belin, T. S. Coldewey, W. L. Thornton, William B. Mills, Alfred duPont Dent, Florida First National Bank of Jacksonville, the Nemours Foundation, a non-profit Florida corporation, and Jacksonville National Bank, Appellees.
    Nos. JJ-388, KK-170.
    District Court of Appeal of Florida, First District.
    April 17, 1979.
    Rehearing Denied May 21, 1979.

      John F. Corrigan, of Corrigan, Werber & Moore, Jacksonville, Richard S. Gebelein, Atty. Gen., Vincent J. Poppiti, State Sol., State of Delaware, Wilmington, Del., for appellant.
    Fred H. Kent and William L. Durden, of Kent, Sears, Durden & Kent, E. Earl Zeh-mer, of Bedell, Bedell, Dittmar & Zehmer, T. Edward Austin, Jr., A. August Quesada, Jr., of Wildt, Quesada, Brock & Skinner, Claude Ogilvie, Jacksonville, for appellees.
    Robert L. Shevin, Atty. Gen., Randy Schwartz, Asst. Atty. Gen., amicus curiae.
   MILLS, Acting Chief Judge.

The Attorney General of Delaware (Delaware) appeals from an order of the trial court dismissing his amended complaint against the trustees of the duPont Trust with prejudice and from an order denying Delaware’s motion to intervene in a separate suit involving the duPont Trust. The appeals were consolidated for review.

Alfred I. duPont died testate on 29 April 1935, and his will created the duPont Trust. Under the terms of the trust, after Mrs. duPont’s death, the net income of the trust was to be paid over “at convenient intervals” to the Nemours Foundation “for the purpose of maintaining ‘Nemours’ as a charitable institution for the care and treatment of crippled children, but not of incurables, or the care of old men or old women, and particularly old couples, first consideration, in each instance, being given to beneficiaries who are residents of Delaware.

. ” It was further provided that: “. . .if the net income of my estate should in any year exceed the sum or sums sufficient to properly provide for the .conduct and operation of said ‘The Nemours Foundation’, . . . such surplus income may from time to time be used ... in contributions to other worthy charitable' institutions as may be conducted for the care of, or the care and treatment of, or the care and education of crippled children, or the care of old men, or of old women, or of old couples, or any one of such purposes. It is my wish that the people of Delaware needing the care of such institutions shall be properly provided for before contributions are made to institutions of any other state or states. . . . ”

Delaware filed a complaint against the trustees of the duPont Trust as trustees and as members, officers and directors of the Nemours Foundation, and against certain of the trustees individually. The complaint sought injunctive relief, the removal of some of the trustees, the appointment of a temporary trustee, surcharges and other relief. The complaint was dismissed without prejudice for failure to state a cause of action.

Delaware filed an amended complaint. Count I of the amended complaint seeks judicial construction of the trust provisions pursuant to Section 737.201, Florida Statutes (1977), and asks the court to declare among other things that the charitable purpose of the duPont Trust has been defeated. Count II alleges continuing violations of Section ' 738.12, Florida Statutes (1977), from 1970 to the present by the trustees holding unproductive assets, specifically the stock in St. Joe Paper Company and shares of Florida National Bank of Florida, Inc. Count III alleges the Trustees’ failure to administer the trust diligently for the benefit of the beneficiaries. Count IV alleges conflicts of interest in violation of Section 737.403, Florida Statutes (1977). Count V charges the trustees with willfully subverting the intent' of the duPont Trust by refusing the Board of Managers of Nemours’ requests for funds when the money is available. Count VI alleges additional wrongful acts of the trustees in order to obtain control of the trust. Count VII alleges that the beneficiaries are suffering irreparable harm as a result of the alleged mismanagement of the trust.

The trial court dismissed the amended complaint with prejudice, holding that Delaware did not have standing to bring the suit. The trial court also pointed out that the amended complaint raised substantially the same questions of law as were raised in the original complaint which was dismissed for failure to state a cause of action.

The first question to be resolved by this appeal is whether Delaware has standing to maintain a suit against the duPont trustees.

Delaware contends that the Attorney General of Delaware, as the lawful representative of Delaware beneficiaries, has standing to maintain a suit to enforce a charitable trust where the trust specifies that the primary beneficiaries are to be residents of Delaware. The Trustees argue that the beneficiaries of a charitable trust have no standing to bring an action to enforce the trust and that only the Attorney General of Florida or a trustee of the trust has the right to enforce charitable trusts being administered in Florida, unless the trust instrument or the Florida Legislature provides otherwise.

As a general rule, only the Attorney General may enforce a charitable trust. Unlike a private trust, where there are identifiable beneficiaries who are the equitable owners of the trust property, the beneficiaries of a charitable trust are the public at large. Whereas beneficiaries of a private trust have the power to maintain a suit to enforce the trust, the public must act through some public official to maintain such a suit.

“The purpose of vesting in some public official such as the Attorney General the exclusive power to begin proceedings to enforce charitable trusts is obvious. The persons affected by such trusts are usually some or all of the members of a large and shifting class of the public. If any member of this class who deemed himself qualified might begin suit, the trustee would frequently be subjected to unreasonable and vexatious litigation. Often no given individual can prove that he will necessarily benefit from the charity. All may be prospective or possible beneficiaries, but no one can be said to be a certain recipient of aid. In ultimate analysis it is the public at large which benefits, and not merely the individuals directly assisted. Obviously, there is good reason for vesting in a single authority the discretion and power incident to the enforcement of such trusts, rather than in leaving the matter to the numerous, changing, and uncertain members of the group directly to be aided.” Bogart, Trusts and Trustees, 2d Ed. Revised § • 411 (1977).

However, it has been recognized that an entity other than the Attorney General can be a proper party to bring suit to enforce a charitable trust. Trustees have been permitted to bring suit against co-trustees, and persons or organizations having a special interest in a trust or a special status under a trust instrument are considered to have standing to enforce the trust. Bogart, Trusts arid Trustees, 2d Ed. Revised, §§ 412, 413, 414 (1977), Fisch, Freed, Schlachter, Charities and Charitable Foundations, §§ 713, 718, 719 (1974); Scott on Trusts, 3d Ed. § 391 (1967). In other areas Florida courts have recognized that a party alleging a special interest, an interest beyond that general interest possessed by the public at large, has standing to bring suit. See United States Steel Corp. v. Save Sand Key, 303 So.2d 9 (Fla.1974). The reason for requiring a special interest is the same reason for the general rule that only the Attorney General may bring suit to enforce a charitable trust:

“If it were otherwise there would be no end to potential litigation against a given defendant, whether he be a public official or otherwise, brought by individuals or residents, all possessed by the same general interest . . . .” Askew v. Hold the Bulkhead-Save our Bays, 269 So.2d 696 (Fla. 2d DCA 1972).

We believe that the people of Delaware have a special interest in the enforcement of the duPont Trust. The terms of the trust give the people of Delaware a special status not enjoyed by the public at large. The Attorney General of Delaware represents the people of Delaware and is the proper party to bring suit on their behalf. We therefore reverse the trial court and hold that the Attorney General of Delaware has standing to maintain this action.

We also hold that the amended complaint states a cause of action. Generally, the complaint alleges activities which indicate that the trustees have violated Section 738.12, that they have failed to administer the trust for the benefit of the beneficiaries and have failed to treat the trust assets as would a prudent trustee, and that Trustees Ball, Belin, Coldewey and Thornton have conflicts of interest which prevent them from acting in the best interest of the trust.

We affirm the trial court’s order denying Delaware’s motion to intervene in the Florida First National Bank of Jacksonville v. Austin case. A determination by a trial judge on a motion to intervene should not be disturbed unless it clearly appears that the trial court abused its discretion. Wogisch v. Tiger, 193 So.2d 187 (Fla. 4th DCA 1966).

We remand the State of Delaware v. Ball, ei a 1. case to the trial court for further action consistent with this opinion.

ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.

      . The term “Trustee” refers to Trustees Ball, Belin, Coldewey, Thornton, Florida First National Bank of Jacksonville, Jacksonville National Bank, and The Nemours Foundation. Trustee Dent filed a separate brief supporting Delaware’s standing to bring suit.


source: Caselaw Access Project

author: MELVIN, Acting Chief Judge.

license: Public Domain

text:
    GREAT LAKES DREDGE & DOCK COMPANY, Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. LL-394.
    District Court of Appeal of Florida, First District.
    June 7, 1979.
    Joseph C. Jacobs, James R. McCachren, Jr., and J. Lawrence Johnston, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, for appellee.
   MELVIN, Acting Chief Judge.

Great Lakes Dredge & Dock Company has perfected its timely appeal from the final order of the Department of Revenue whereby the appellant was assessed the total sum of $186,083.91 in sales tax, use tax and interest.

It is the position of the Department of Revenue that the Great Lakes Dredge & Dock Company is responsible for the sales and use tax, as well as assessed interest, by reason of its participation in Florida in a joint venture contract entered into with two Dutch firms for the purpose of assisting in the expansion and modernization of the Port of Dammam, which is the main port of entry of Saudi Arabia. The joint venture is called GLABVO and its sole purpose is to perform as a dredging subcontractor on the Port of Dammam project. GLABVO has no business in the State of Florida or in any other state of the United States.

The general contract for the expansion and modernization of the Port of Dammam resulted because the existing port facilities were considered to be no longer adequate to handle the flow of trade, with unloading delays of as long as six to nine months being alleged. Accordingly, the Saudi Arabian Government placed a very high priority upon the completion of this project and, as a result of such priorities, imposed, by contract, severe penalties for delay on the part of the general contractor. Of course, these penalties in turn were to be passed along to the subcontractors, under the terms of the subcontract, to the extent that they caused the delay. For the Kingdom of Saudi Arabia and all parties involved in the contract, time was of the essence.

The joint venture agreement required of Great Lakes to make available certain equipment including derricks, fuel barges, dredges, tug boats and loading scows. All of this equipment was contracted to be provided in good working condition and, under the contract, Great Lakes was also obligated to provide GLABVO a full complement of materials and supplies needed for such harbor improvements. Great Lakes was paid by GLABVO a rental for the equipment and reimbursed for the purchase price of all the materials and supplies. The Department of Revenue asserts that it has the right, under the provisions of Chapter 212, Florida Statutes (1975), to assess use tax and sales tax on the materials and supplies thus purchased by Great Lakes in connection with its participation in the joint venture agreement for the Kingdom of Saudi Arabia. The supplies and materials, some of which were purchased in Florida and some of which were purchased in various other areas outside of Florida, were all mar-shalled at Dodge Island in Dade County, Florida, by Great Lakes in connection with its preparation to move the same overseas to the port location in the Kingdom of Saudi Arabia.

The Department does not dispute that all of the items purchased and upon which either a sales or use tax is sought to be imposed were purchased for the purpose of export when the same were ordered from the original vendor. The Department also does not dispute that all of the items were, in fact, exported to the Kingdom of Saudi Arabia, and that the same were consumed in the Kingdom of Saudi Arabia in obedience to the contract heretofore referred to but it contends that because all of these supplies and materials came to rest at Docfge Island and some were repackaged for loading on ocean-going barges, that the same then become subject to use tax and/or sales tax pursuant to Chapter 212, Florida Statutes (1975).

It is the contention of Great Lakes that the acquisition of these supplies and materials and the marshalling of the same at the point referred to, were exempted by virtue of Article I, Section 10, Clause 2 of the Constitution of the United States (The Import-Export Clause), and that since, from the very inception of each purchase, the items purchased were definitely committed into the channels of commerce for the irrevocable purpose of moving the same in interstate commerce to the Florida point from which, in international commerce; the same were moved to the Kingdom of Saudi Arabia. Such it is said brings about an exemption of the purchase and rentals of such agreements and such materials and supplies from the Florida sales and use tax. We agree and reverse the order appealed from.

The most .recent Florida Supreme Court decision considering the Import-Export Clause and Section 212.06(5) Florida Statutes (1975) is Fred McGilvray, Inc. v. Askew, 340 So.2d 475 (1976). There McGil-vray contested a sales and use tax assessment levied against certain tangible personal property purchased both within and outside the state. All of the property assessed was eventually shipped to the Bahamas pursuant to McGilvray’s contract with a construction contractor there. The barge transporting the property to the Bahamas was not a common carrier and there were no bills of lading or export declarations properly before the court in connection with the shipment. Relying upon Kosydar v. National Cash Register Co., 417 U.S. 62, 94 S.Ct. 2108, 40 L.Ed.2d 660 (1974), and the cases cited therein, the trial court held that the property was not exempt from Chapter 212 taxes under the Import-Export Clause of the U.S. Constitution. Affirming the trial court, the Florida Supreme Court stated that:

“Section 212.06(5), Florida Statutes (1969), establishes a presumption that tangible personal property is not to be considered ‘as being imported, produced or manufactured for export unless the importer, producer or manufacturer delivers the same [i] to a licensed exporter for exporting, or [ii] to a common carrier for shipment outside the state or [iii] mails the same by United States mail to a destination outside the state.’ This presumption, of course, is rebuttable by the taxpayer. . . ” (Latter emphasis supplied)

Finding that the appellant had failed either to meet any .of the above three requirements or to rebut the statutory presumption, the Supreme Court affirmed the imposition of the taxes.

Although the McGilvray case establishes that tangible personal property will be presumed to be not for export, unless one of the three stated criteria are met, the case does not stand for the proposition that the statutory presumption may be rebutted only by meeting one of the three stated criteria. Rather, if one of the three erite-ria of Section 212.06(5), F.S. is met by the taxpayer, then there is no statutory presumption created that the property sought to be taxed is not within the stream of exportation. As such, the three criteria are indicators of certainty of exportation. Stated another way, the Florida Legislature has apparently determined that property entered into the stream of exportation by one of the means described by the three criteria is either irrevocably committed to exportation or that exportation is certain to such a high degree of probability that the presumption of no exportation need not arise. If, on the other hand, the taxpayer does not avail himself of one of the three methods described in Section 212.06(5) because of the necessity for greater speed in delivery, the size of the property to be shipped, special handling considerations, business economies, business necessity or for any other legal reason, then the Section 212.06(5) presumption arises and the taxpayer must rebut it in order -to avoid the tax.

In rebutting the presumption that his property has not been dedicated to the stream of exportation the taxpayer is often confronted with the charge that his property cannot be so dedicated unless it has been placed with a common carrier, the governmental postal system or some other similar agency that provides “certainty” of exportation. The Department uses the argument here and though it has been discussed in many cases the argument has been rejected repeatedly. Carson Petroleum Co. v. Vial, 279 U.S. 95, 49 S.Ct. 292, 73 L.Ed. 626 (1929); Coe v. Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715; Spalding & Bros. v. Edwards, 262 U.S. 66, 43 S.Ct. 485, 67 L.Ed. 865 (1923); Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80 (1946); Sunair Electronics v. Green, 177 So.2d 490 (Fla. 1st DCA 1965).

In Sunair Electronics v. Green, supra, one of the issues involved a Chapter 212 assessment on uninstalled radios which were being transported to their foreign purchasers in private aircraft being ferried to the same locations. Rejecting the necessity of the common carrier and approving the taxpayer’s practical transportation solution, this Court stated:

“. . .it appears . . that the shipment of the electronic equipment by appellant manufacturer to the foreign purchaser in the latter’s personally owned aircraft rather than by way of common carrier was not determinative of the tax-ability of the transaction. Placing the equipment in the purchaser’s aircraft for transportation to its foreign destination just as certainly committed the property sold to the export stream as did the pumping of the oil by Richfield into'the hold of the New Zealand tanker.”

Abating the tax imposed, this Court cited with approval the case of Gough Industries Inc. v. State Board of Equalization, 51 Cal.2d 746, 336 P.2d 161 (1959), and the four controlling factors the Supreme Court of California found present in a sale of electrical products to an Arabian corporation, which exempted the transaction from the state sales tax under the Import-Export Clause. The factors, which we find present in the instant case are:

“. . (a) the agreement of sale contemplated shipment of the goods in export, that is, from a seller in the United States to a buyer in a foreign country; (b) from the beginning of the transaction, the goods were committed to go all the way to the foreign country; (c) the movement of the goods had actually started when the tax was sought .to be imposed; and (d) the journey was continuous and unbroken by any action or delay taken for a purpose independent of the transportation of the goods.”

The Richfield decision, supra, involved a situation in which Richfield pumped oil from its refinery to the harbor of Los Ange-les, where it was placed in storage tanks and pumped, in that case, to a New Zealand tanker for exportation. The California Supreme Court upheld the assessed state sales tax on the theory that the delivery of oil which resulted in the passage of title occurred prior to the commencement of the exportation. It was suggested by that court and conceded by the state that a different result would have obtained had the oil been delivered to a common carrier.

The Supreme Court of the United States reversed and invalidated the tax stating in part:

“The certainty that the goods are headed to sea and that the process of exportation has started may normally be best evidenced by the fact that they have been delivered to a common carrier for that purpose. But the same degree of certainty may exist though no common carrier is involved.
It would not be clearer that the oil had started upon its export journey had it been delivered to a common carrier at an inland point. The means of shipment are unimportant so long as the certainty of the foreign destination is plain.” (Emphasis supplied)

As construed by this Court in Sunair and the Florida Supreme Court in McGilvray, the Legislature, through Section 212.-06(5)(a), has not sought to hamstring the business interests of this state, when they seek to engage in international commerce, by dictating the means of transportation they must employ in transporting their goods. Rather, they have merely lessened the exporters’ burden of proof if they utilize one of the “high degree of certainty” methods of transportation described in the statute. Should the exporter select a different mode of transportation, as did the appellant in the instant case, then the burden of proof becomes greater. It is not an impossible burden; it merely raises 'the question “. . . whether a sufficient commencement of the process of exportation has occurred so as to immunize the article at issue from state taxation.” Kosydar v. National Cash Register Co., supra.

The Department relies heavily upon the National Cash Register decision but its reliance is misplaced, for there, the machines sought to be taxed, although manufactured pursuant to a foreign purchase order and admittedly designed for foreign use, had never entered the stream of exportation. Rather, after being manufactured in N.C. R.’s main production plant located in Dayton, Ohio, the machines were stored in a N.C.R. warehouse also located in Dayton, while awaiting shipment. Indeed, the court noted that some of the machines had remained stored in the warehouse awaiting shipment for as long as three years.

Relying heavily upon the fact that the NCR machines were still located in a NCR warehouse on the tax day, that title and possession were still in NCR, that no payment had been made by the foreign purchasers and that the machines were then in the complete control of NCR, the court upheld the taxation imposed stating:

“More important, there had simply been no movement of the goods — no shipment, and no commencement of the process of exportation. Given this factual setting, it would require a sharp departure from nearly a century of precedents under the Import-Export Clause for us to conclude that the machines were ‘exports’ and exempt from state taxation.
“. . . ‘such goods do not cease to be part of the general mass of property in the state, subject, as such, .to its jurisdiction, and to taxation in the usual way, until they have been shipped, or entered with a common carrier for transportation, to another State, or have been started upon such transportation in a continuous route or journey’.”

In 1929, the U.S. Supreme Court heard the case of Carson Petroleum Co. v. Vial, 279 U.S. 95, 49 S.Ct. 292, 73 L.Ed. 626, which questioned the “continuity of transit” of certain quantities of oil moved in interstate and international commerce. Specifically, the oil was purchased by Carson Petroleum in the Mid-Continent Field and transported by rail to its tank farm near New Orleans. The oil was stored in large tanks and was often allowed to accumulate in order to avoid expensive demurrage charges on the ships it was to be loaded for export. The Louisiana authorities claimed-that the oil, stored in the tank farm was subject to local taxation, even though intended and prepared for exportation, because it had come to rest in the state between its rail trip to the port and its subsequent marine shipment to Europe. The oil company, on the other hand, contended that the shipment of the oil from refinery to foreign purchaser was continuous notwithstanding the storage and stoppage at port where it had to await either the arrival of a ship or the accumulation of a sufficient quantity of oil to load a ship.

Citing to its earlier decision in Coe v. Errol, supra, among others, the court stated:

“ ‘The conclusion in cases like this must be determined from the various circumstances. Mere intention by the owner ultimately to send the logs out of the state does not put them in interstate commerce, nor does preparatory gathering, for that purpose, at a depot. It must appear that the movement for another state has actually begun and is going on. Solution is easy when the shipment has been delivered to a carrier for a destination in another state. It is much more difficult when the owner retains complete control of the transportation and can change his mind and divert the delivery from the intended interstate destination, as in the Champlain Company [Champlain Realty Co. v. Brattleboro, 260 U.S. 366, 43 S.Ct. 146, 67 L.Ed. 309] case. The character of the shipment in such a case depends upon all the evidential circumstances looking to what the owner has done in the preparation for the journey and carrying it out. The mere power of the owner to divert the. shipment already started does not take it out of interstate commerce, if the other facts show that the journey has already begun in good faith and temporary interruption of the passage is reasonable and in furtherance of the intended transportation, as in the Champlain case. Here the case is even stronger in that the owner and initiator of the journey could not by his contract divert the logs after they had started from Swamp River without a breach of contract made by him with his vendee, who, by the agreement of sale, divided with him the responsibility for the continuous interstate transportation.’ ” (Emphasis supplied)

Noting that “[t]here has been a liberal construction of what is continuity of the journey, in cases where the court finds from the circumstances that export trade has been actually intended and carried through,” the Carson court discussed its decision in the case of Texas & New Orleans R. Co. v. Sabine Tram. Co., 227 U.S. 111, 33 S.Ct. 229, 57 L.Ed. 442 (1913), which involved the shipment of lumber destined for export. There the exporter purchased lumber from various mills in Texas and had it transported to port, where it was stored until the exporter selected it for shipment to a select foreign destination. Despite the fact that the lumber was stored at dockside, the Sabine Tram, court held that the shipments were in interstate and foreign commerce, stating:

“The determining circumstance is that the shipment of the lumber to Sabine was but a step in its transportation to its real and ultimate destination in foreign countries. In other words, the essential character of the commerce, not its mere accidents, should determine. It was to supply the demand of foreign countries that the lumber was purchased, manufactured and shipped, and' to give it a various character by the steps in its transportation would be extremely artificial. Once admit the principle, and means will be afforded of evading the national control of foreign commerce from points in the interior of a state. There must be transshipment at the seaboard, and if that may be made the point of ultimate destination by the device of separate bills of lading the commerce will be given local character, though it be essentially foreign.”

Thus, absent delivery to a common carrier, or the like,, the issue in the Import-Export Clause cases appears to be whether the property has been started upon its foreign transportation in a continuous route or-journey with a high degree of certainty that it is headed for its foreign destination and will not be diverted to domestic use. Such determinations have invariably turned on the facts of each case and so it is in this case that the facts supply the high assurance of exportation necessary to defeat the tax.

The joint venture in this case was entered into December 16, 1975. As the majority venture holder, Great Lakes, was contractually obligated to furnish, for rental, the majority of the dredging equipment and its associated supplies and materials. Time being of the essence and there being no local Saudi suppliers of repair parts and materials, a major concern was the acquisition of sufficient on-hand repair parts and materials to avoid breakdowns and costly work stoppages. The record reveals that on December 30, 1975, Great Lakes began ordering pipes, valves, welding supplies and equipment and a hydraulic crane, among other things. The purchase orders required delivery to Dodge Island, Miami, stated that the property was to be marked “for export”, and in most cases required the property to be marked at a minimum with “Dammam” as the destination and with Great Lakes’ tax identification number. Most purchase orders requested delivery by the end of January 1976.

On January 22, 1976, GLABVO entered into a Transportation Agreement with Global Transport requiring Global to provide three ocean-going tows to Dammam, two of which were to originate at Dodge Island where the first tow whs to be tendered on February 15, 1976. Demurrage charges for the tug and tow were to be $7,500 per day. At the administrative hearing on this matter Great Lakes’ witnesses testified that utilizing Global Transport’s services was the superior method of transportation in terms of time, expense and safety. Considering the scarcity of existing harbor facilities at Dammam, utilizing Global’s ocean-going tow, with its float-on, float-off capability was the only practical method of transport available.

The Global tow became available to Great Lakes at Dodge Island on or about February 11, 1976, and the loading process began immediately. Loading involved, first, sinking the 100 by 400 foot Global barge and then floating the cargo aboard. The largest single piece of cargo on the first tow was a hydraulic dredge which weighed about 2200 tons. Positioning of the cargo to achieve the proper balance was critical. The hydraulic dredge, a smaller tug and several barges of various types were floated on the large tow and positioned. The tow was then refloated and the cargo secured for its ocean journey. The supplies and materials taxed were containerized for protection and placed on the smaller barges to facilitate their off-loading at Dammam. Inventory was kept during the loading process and bills of lading and export declarations were prepared during the final loading. The process was continuous until the ocean-going tug and tow departed for Dam-mam on February 18, 1976. Following its 50 to 60 day journey to Dammam, the same Global tug and tow returned to Dodge Island, was loaded again and departed for Dammam on May 24, 1976. As stated, all of the assessed tangible personal property was exported to Saudi Arabia.

From the foregoing, we are convinced that the property assessed was dedicated to a continuous and certain process of exportation from the time it was shipped from the various vendors within and outside the state. The property was ordered pursuant to a foreign contract on purchase orders stating that the goods were for exportation and were to be so marked. The limited delays or interruptions involved in moving the property from vendor to Saudi Arabia were merely necessary steps in the exportation process and did not result in the goods settling into the mass of property of the state. As stated by the United States Supreme Court in Spalding & Bros. v. Edwards, supra:

“The fact that further acts were to be-done before the goods would get to sea does not matter so long as they were only the regular steps to the contemplated re-suit. Getting the bill of lading stands no differently from putting the goods on board ship. . . . ”

Any possibility that Great Lakes would divert the goods to the domestic market were remote and did not occur. As such, they are theoretical and may be left out of account, Spalding & Bros. v. Edwards, supra; Sunair Electronics v. Green, supra.

Great Lakes has successfully rebutted the Section 212.06(5)(c) presumption that the property assessed was not for export. The narrow statutory construction- urged by the Department would unduly strap the ports of Florida and our native industry in the competition for international commerce. We find no such intent on the part of the Legislature. Accordingly, the immunities afforded by the Import-Export Clause of the Constitution of the United States apply and the state sales and use taxes assessed must be-abated.

The final order appealed from is REVERSED.

BOOTH and LARRY G. SMITH, JJ., concur.

      . Section 212.06(5)(a), F.S. (1975) states in pertinent part:
      “(5)(a) It is not the intention of this chapter to levy a tax upon tangible personal property imported, produced or manufactured in this state for export, provided that tangible personal property shall not be considered as being imported, produced or manufactured for export unless the importer, producer or manufacturer delivers the same to a licensed exporter for exporting, or to a common carrier for shipment outside the state or mails the same by United States mail to a destination outside the state; . . .” (Emphasis supplied)

      . For a critical examination of the McGilvray case, see Brill & Hayes, State and Local Taxation, 1976 Developments in Florida Law, 31 U.Miami L.Rev. 1231, 1267-72.

      . Notwithstanding the apparent decision of our sister court to the contrary in Graybar Elec. v. State Dept. of Revenue, 347 So.2d 718 (Fla. 3d DCA 1977), cert. den. 358 So.2d 134 (Fla.1978), it is clear to us from our reading of the McGil-vray case and the United States Supreme Court’s decisions on the subject that the taxpayer is neither restricted to the three means of export delivery stated in Section 212.06(5), F.S. in order to enjoy the tax immunities provided by the Import-Export Clause nor is he limited to the use of those same three methods in rebutting the Section 212.06(5)(a) presumption that the transaction is not for export and, therefore, taxable. Discussing the McGilvray decision, the Third District in Graybar Elec. stated:
      “The Florida Supreme Court in McGilvray . has interpreted this statute to create a presumption that tangible personal property cannot be considered export goods exempt from the state sales tax unless one of three conditions obtain: (1) the property is delivered to a licensed exporter for exporting, or (2) the property is delivered to a common carrier for shipment out of state, or (3) the property is mailed by the United States mails outside the state. The presumption created is rebuttable by the taxpayer upon a showing of any one of the above three conditions, in which case the property would not be subject to the state sales tax.”
      However, it seems apparent to us that had the taxpayer utilized any of the statutory methods of transportation initially, their tangible personal property would be considered “for export” and there would be no adverse presumption for the taxpayer to rebut.


author: MASON, Associate Judge:

text:
    Robert L. HANNAH, Appellant, v. Thomas PEREGO, Appellee.
    No. LL-150.
    District Court of Appeal of Florida, First District.
    July 10, 1979.

      Richard Bertone of Wagner & Bertone, Holly Hill, for appellant.
    Philip J.- Jansen of Jansen & DeGance, Fort Lauderdale, for appellee.
   OPINION CLARIFIED ON PETITION FOR REHEARING

MASON, Associate Judge:

This is an appeal from a final judgment of the Circuit Court of Volusia County, John J. Upchurch, Judge, denying appellant’s complaint for foreclosure of a mortgage given to secure a promissory note and awarding appellee, Perego, damages on his counterclaim.

The facts are as follows: Perego, along with two other people, purchased a funeral business and assumed a mortgage owing to appellant Hannah and one Robinson. Thereafter, Perego employed Hannah as funeral director and manager of the funeral business. In 1975, Hannah and Robinson filed a mortgage foreclosure suit against Perego and his co-owners alleging that he was in arrears in payment of three monthly payments on account of the note and mortgage, as well as being in arrears in the payment of three monthly payments on account of a first purchase money mortgage on the property held by third parties, which last stated arrearages had to be, and were paid by Hannah and Robinson to protect their second mortgage from being foreclosed. Appellant also alleged that appellee further defaulted by failure to pay insurance premiums and taxes which he covenanted to pay and keep current.

Perego answered, alleging payment, es-toppel, waiver, fraud and merger. He also counterclaimed alleging that Hannah, while in a fiduciary capacity defrauded him by giving receipts and satisfaction of debts to certain clients and customers of the funeral home and converting certain funds to his own use and enjoyment. He asked for an accounting, compensatory and punitive damages of and from Hannah. In a second count of his counterclaim he alleged that Hannah converted to his own use certain pre-arrangement files belonging to him. Hannah and Robinson asked for and received summary judgment of the trial, court. Perego appealed therefrom and this court reversed on the ground that there existed justiciable issues of fact in the record which could not be resolved on a motion for summary judgment. Perego v. Robinson and Hannah, 344 So.2d 316 (Fla. 1st D.C.A. 1977).

In the meantime Hannah and Robinson were in possession of the funeral home as a result of having purchased the same at foreclosure sale on November 24th, 1975. Hannah operated the funeral home during the time that this cause was on appeal from the summary judgment. After the reversal by this court of such judgment Perego amended his counterclaim to include a prayer for damages for loss of business, business reputation and for loss of profits and rents for the use of the premises by Hannah and Robinson during the period of the litigation. In the meantime Perego bought out the co-owners’ interest.

By pre-trial order and without objection of any of the parties or counsel the court announced that the issues raised by the pleadings would be tried in a bifurcated trial with the issues presented by the counterclaim of alleged damages for loss of business reputation, punitive damages, loss of personal property and loss of profits being submitted to the jury for determination, and the issues under the foreclosure complaint of non-payment of the mortgage obligation and the defense thereto of payment and the defendants’ claim for rent since the mortgagees were put into possession of the property as a result of the foreclosure sale would be determined by the court.

The jury returned a verdict for Perego on his counterclaim in the following amounts for items of damages claimed: (1) Loss of profits, $21,000.00, (2) For conversion of funeral pre-arrangement files, $25,000.00, (3) Fraudulent conversion of business funds, $1,640.00, (4) For conversion of furnishings, $5,000.00, and (5) Punitive damages, $5,000.00, all totaling $57,640.00.

The court on the issue of the rent claim of defendant, Perego, found for the latter in the sum of $38,333.41.

The trial court denied Hannah’s prayer for acceleration of the mortgage and foreclosure thereof of his half interest in the same on the cited ground that the jury had by its verdict found him guilty of violation of a fiduciary relationship that he held with Perego, and guilty of conversion of funds. He entered judgment for Perego against Hannah in the sum of $95,973.41, the sum total of the above two last stated figures. It is from this judgment that this appeal lies.

Robinson was granted his prayer for relief for foreclosure of the mortgage for his half interest in the note and mortgage on the same date as the entry of the judgment against Hannah. Perego has appealed from Robinson’s judgment but we are not concerned here with that appeal.

The points on appeal present two main issues, first as to whether the trial court erred in denying Hannah the right to foreclose his interest in the mortgage by acceleration of the same due to defaults in compliance by Perego of certain terms of the mortgage, and (2) whether Perego established by substantial competent evidence a right to a judgment against Hannah for the several items of damage sued for by Pere-go-

We shall discuss and resolve these' issues in reverse order.

We conclude that as to the items of damage for which Perego received judgment there is in the record substantial competent evidence to sustain all of such items of damage save and except item number two, viz: the jury’s award of $25,000.00 for alleged conversion of funeral pre-arrangement files. Such proof being sufficient as to all of such other items we are not permitted to substitute our opinion for that of the jury and trial judge. See U. S. Y. & T. Industries, Inc., f/k/a Union Stockyards & Transit Company of Chicago v. Charolais Herds & Ranches, Inc., 367 So.2d 1084, de-cided by this court, opinion filed February 26, 1979, and cases cited therein.

However, as to the item of damages for conversion of funeral pre-arrangement files we must reverse. The record discloses that a funeral pre-arrangement file is nothing more than a statement of the funeral arrangements a person wishes to have when he dies. Upon his death his family or estate is not bound by the pre-arrangement file because it is not a binding contract wherein in the deceased has agreed to pay the funeral home any specific amount for any specific type of funeral, but rather is no more than a statement of the deceased as to his wishes concerning the kind of funeral he would like. The evidence below indicates that such files have no real market value because of the lack of a contractual obligation on the part of the deceased to pay a specific sum for the desired type of funeral, and the lack of any obligation on the part of his family or estate to use and pay for such type of funeral so prearranged. For these reasons the value of such files is purely conjectural and speculative. The trial court erred in permitting the jury to consider this item of damage and in entering judgment therefor in the amount awarded by the jury.

Did the trial court abuse his .discretion in refusing to honor the acceleration provisions of the mortgage in so far as appellant Hannah was concerned, and in denying Hannah’s prayer to foreclose his one-half interest in the mortgage and note? We think so, and reverse that portion of the final judgment entered by the trial court. The court below granted the comortgagee’s, Robinson, prayer for such relief and entered foreclosure judgment for Robinson in the total sum of $52,763.09, with interest from date of judgment, representing Robinson’s one-half interest in the mortgage. The court denied Hannah’s right to accelerate the note and mortgage, giving as his reason therefor that the jury’s verdict on Perego’s counterclaim forfeited Hannah’s right of foreclosure. We hold he erred in so doing.

At the time of the institution of this suit it is undisputed that Perego was in excess of $3,000.00 in arrears on the second mortgage, as well as in arrears on his payments under the first mortgage, plus taxes and insurance. The record discloses that in order for Hannah and Robinson to protect their second mortgage they were required to pay Perego’s defaulted payments on account of the first mortgage. The record further discloses that some two months pri- or to the filing of this suit Perego closed the funeral home, abandoned the premises, and returned to his home in Ft. Lauderdale. Hannah and Robinson thereafter continued to pay the payments on the first mortgage, and insurance' premiums and taxes on the property. It is evident that the court below found these facts to be true as the basis for granting Robinson’s prayer for foreclosure.

We do not believe that Hannah’s actions while he was in possession of the premises subsequent to the first foreclosure judgment later reversed by this court were of such character as to justify a denial to him of his contractual rig.hts under the mortgage. The trial court should have granted Hannah’s prayer to foreclose his interest in the second mortgage and should have entered a judgment of foreclosure by striking a balance between what was due Hannah on an accelerated basis and the damages suffered by Perego as determined by the jury and the court, less the item of damages so found for conversion of the funeral pre-arrangement files. If upon such an accounting it was found that the damages suffered by Perego were less than the amount due on account of Hannah’s interest in the second mortgage on an accelerated basis, foreclosure -judgment should have been entered for Hannah for the difference. On the other hand if Perego’s lawful damages exceeded the amount found to be due Hannah on account of his interest in the mortgage the court should have entered a general judgment for Perego for such excess, and cancelled Perego’s obligation to Hannah under the mortgage and the note secured by it. See Federal Home Loan Mortgage Corporation v. Taylor, 318 So.2d 203 (Fla. 1st D.C.A. 1975).

In summary, we affirm that portion of the judgment below awarding damages to appellee Perego under his counterclaim except the award for conversion of the funeral pre-arrangement files. As to said latter item of damage we reverse and direct that the trial court delete such award from any judgment hereafter entered. We reverse the trial court’s denial of appellant’s Hannah, prayer for acceleration and foreclosure.

We remand with direction to the court below to set aside the judgment herein appealed and to enter judgment in accordance with the views herein expressed.

Affirmed in part, reversed in part.

MILLS, C. J., and ERVIN, J., concur.


author: McCORD, Acting Chief Judge.

text:
    TITLE & TRUST COMPANY OF FLORIDA, a corporation, Appellant, v. Belden N. BARROWS and Edith B. Barrows, his wife, Appellees.
    No. MM-106.
    District Court of Appeal of Florida, First District.
    Aug. 7, 1979.

      Earl M. Barker and Delbridge L. Gibbs of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.
    S. Gordon Blalock of Blalock, Holbrook, Akel & Poitevent, Jacksonville, for appel-lees.
    Peter Guarisco, Tallahassee, for amicus curiae.
   McCORD, Acting Chief Judge.

This appeal is from a final judgment awarding money damages to appellees for breach of title insurance policy. We reverse. .

Through a realtor, appellees purchased, for $12,500, a lot surrounded on three sides by land owned by others, all of which is a part of a beach subdivision. The fourth side of appellee’s lot borders on a platted street called Viejo Street, the right-of-way for which has been dedicated to and accepted by St. Johns County. The right-of-way line opposite appellees’ lot abuts a Corps of Engineers’ right-of-way in which there is a stone breakwater. The intraeoastal waterway flows on the other side of the breakwater.

The realtor who sold the lot to appellees represented to them that the county would build a road in the right-of-way along Viejo Street when appellees began plans for building on their lot. There have been no street improvements in the dedicated right-of-way, and St. Johns County has no present plans for making any improvements. The “road” is merely a continuation of a sandy beach.

A year after purchasing the land appel-lees procured a survey which disclosed that the elevation of their lot is approximately one to three feet above the mean high water mark. They later discovered that their lot, along with the Viejo Street right-of-way abutting it, is covered by high tide water during the spring and fall of each year.

At the time appellees purchased their lot, they obtained title insurance coverage from appellant. The title policy covered:

“Any defect in or lien or encumbrance on the title to the estate or title covered hereby . or a lack of a right of access to and from the land; . . . .”

Appellees’ complaint of lack of right of access was founded on the impassable condition of the platted street. After trial without a jury, the trial court entered final judgment finding that appellees did not have access to their property and, therefore, were entitled to recover $12,500 from appellant — the face amount of the policy.

Appellant and Florida Land Title Association, appearing as amicus curiae, argue that appellant cannot be held liable on grounds of “lack of right of access to and from the land” since there is no defect shown by the public record as to their right of access; that the public record shows a dedicated and accepted public right-of-way abutting the lot. They contend that title insurance does not insure against defects in the physical condition of the land or against infirmities in legal right of access not shown by the public record. See Pierson v. Bill, 138 Fla. 104, 189 So. 679 (1939). They argue that defects in the physical condition of the land such as are involved here are not covered by title insurance. We agree. Title insurance only insures against title defects.

The Supreme Court of North Carolina in Marriott Financial Services, Inc. v. Capitol Funds, Inc., 288 N.C. 122, 217 S.E.2d 551 (1975), construed “right of access” to mean the right to go to and from the public right-of-way without unreasonable restrictions. Compare Hocking v. Title Insurance & Trust Company, 37 Cal.2d 644, 234 P.2d 625 (1951), where, in ruling that the plaintiff failed to state a cause of action in a suit brought under her title policy, the court said:

“She appears to possess fee simple title to the property for whatever it may be worth; if she has been damaged by false representations in respect to the condition and value of the land her remedy would seem to be against others than the insurers of the title she acquired.”

In Mafetone, et al., v. Forest Manor Homes, Inc., et al., 34 A.D.2d 566, 310 N.Y.S.2d 17 (N.Y.1970), the plaintiff brought an action ■ against a title insurance company for damages allegedly flowing from a change in the grade of a street. There the court said:

“The title company is not responsible to plaintiffs for the damages incurred by reason of the change in elevating the abutting street to its legal grade, since the provisions of the standard title insurance policy here in question are concerned with matters affecting titie to property and do not concern themselves with physical conditions of the abutting property absent a spécific request by the person ordering a title report and policy . . .”
(Emphasis supplied.)

In McDaniel v. Lawyers’ Title Guaranty Fund, 327 So.2d 852 (Fla. 2 D.C.A.1976), our sister court of the Second District said:

“The man on the street buys a title insurance policy to insure against defects in the record title. The title insurance company is in the business of guaranteeing the insured’s title to the extent it is affected by the public records.”

In the case here before us, there is no dispute that the public record shows a legal right of access to appellant’s property via the platted Viejo Street. The title insurance policy only insured against record title defects and not against physical infirmities of the platted street.

REVERSED.

ERVIN and LARRY G. SMITH, JJ., con- . cur.


author: MeCORD, Acting Chief Judge. LARRY G. SMITH, Judge,

text:
    CAPITAL PLAZA, INC., Appellant, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION and Leon County, Appellees.
    No. LL-232.
    District Court of Appeal of Florida, First District.
    Oct. 11, 1979.
    Rehearing Denied Dec. 20, 1979.

      David W. Foerster of Foerster & Hodge, Jacksonville, for appellant.
    Margaret-Ray Kemper and H. Reynolds Sampson, Tallahassee, for appellees..
   MeCORD, Acting Chief Judge.

This appeal is from a final judgment in an eminent domain proceeding awarding to appellant compensation consisting of the value of the land taken and severance damages. We reverse.

Appellant is the owner of an automobile service station facility located on the southwest corner of the intersection of Thomas-ville Road and Glenview Drive in Tallahassee. By these proceedings, appellees acquired 1263 square feet of appellant’s service station facility to be used in a reconstruction of Thomasville Road from a two-lane facility to a six-lane facility with a raised four-foot-high median dividing the driving lanes. Prior to the taking, the service station had unimpaired access to and from all lanes running in each direction of Thomasville Road and Glenview Drive. Appellant argues that the four-foot-high median in the center of the reconstructed Thomasville Road will obstruct access to the service station property from the northbound roadway lanes for automobiles coming in or going out of the station. It contends that the trial court erred in ruling that no evidence would be received concerning the impairment of access to and from the service station by reason of the construction of the raised median, notwithstanding that the appraiser for appellees would testify to greater severance damages if such testimony were allowed. The primary question on this appeal is as follows: Whether the jury, upon proper instruction, should have been allowed to receive evidence on the question of substantial impairment of access due to the existence of the median — not for the purpose of awarding damages therefor as a separate item but only for the jury’s consideration of such evidence in connection with its overall consideration of the condemnation in relation to severance' damages, if any. Appellees contend that such evidence is not admissible; that the construction of the median is an exercise of the state’s police power, and the jury may not consider any diminution in access to the property resulting from the median construction in arriving at its award.

The above question is resolved by the opinion of the Supreme Court in State Department of Transportation v. Stubbs, 285 So.2d 1 (Fla.1973). Stubbs involved a situation in which a portion of the landowner’s property was taken in connection with the building of Interstate 295, a limited access highway. The landowner’s property there, prior to the taking, was accessible to automobile traffic moving both north and south on Firestone Road on which the property fronted. After the taking, access to the landowner’s property could only be gained by traversing an overpass from the east side to the west side of the interstate highway. The landowner’s loss of access in Stubbs was more accentuated than any loss of access to appellant’s property here. The principles of law announced in Stubbs, however, apply equally to the present case. The Supreme Court said:

“Ease and facility of access constitute valuable property rights for which an owner is entitled to be adequately compensated.”
“The important question is whether there has been a substantial diminution in access as a direct result of the taking. What is ‘substantial’ is a question of fact posing practical problems of proof for the jury’s consideration. Where some right of access is still available, as would appear in the cause under consideration, it is for the jury to determine whether the resulting damages are nominal or substantial. See State Road Department of Florida v. McCaffrey, [229 So.2d 668 (Fla.App.1969)] supra; Stoebuck, supra at 765.”
“. . In a situation of this kind where a portion of one’s property and/or access rights to an existing road is taken for limited access road purposes, Section 338.04 as construed in the Anhoco case requires consideration by the jury of severance damages for loss of access rights.”

The court went on to point out in Stubbs that “access,” as a property interest, does not include a right to traffic flow even though commercial property might suffer adverse economic effects as a result of a diminution in traffic. It held that one has a right to introduce evidence at trial of severance damages resulting from physical impairment of access rather than for an impairment in “traffic flow.”

In the case sub judice, appellant was entitled to have the jury consider, as a part of severance damages, evidence relating to the median which, although it did not completely prevent vehicles approaching from the south from reaching the station and vehicles leaving the station from reaching the northbound traffic lanes (in both instances over a more circuitous route), it did eliminate the free access as to the northbound lanes which existed prior to the taking. As stated in Stubbs:

“[I]t is for the jury to determine whether the resulting damages are nominal or substantial.”

It was, thus, error to exclude this testimony from the jury’s consideration under proper instruction by the court. Cf. Simkins v. City of Davenport, 232 N.W.2d 561 (Iowa 1975).

We have considered the remaining point raised by appellant and find it to be without merit.

REVERSED. ’

BOOTH, J., concurs.

LARRY G. SMITH, J., dissents.

LARRY G. SMITH, Judge,

dissenting.

In my opinion State Department of Transportation v. Stubbs, 285 So.2d 1 (Fla.1973), and Anhoco Corporation v. Dade County, 144 So.2d 793 (Fla.1962), do not authorize or require award of compensation for damages resulting from installation of a median in an existing highway. The damages in the case under consideration are those resulting from change in the “traffic flow”, not deprivation of “access” as in Stubbs and Anhoco.

In the Anhoco case, the right of access was destroyed, not merely regulated (Anhoco Corporation v. Dade County, supra, opinion page 798). In Stubbs, a portion of Firestone Road “fronting on Respondents’ land” (Department of Transportation v. Stubbs, supra, opinion page 2) was actually abandoned. Firestone Road itself, where it abutted the Stubbs’ property, was closed to ’ all traffic at a point just south of the northern boundary of their land, and was also closed at a point approximately three blocks south of the Stubbs’ property. What was left of the original Firestone Road, so far as the Stubbs were concerned, was an approximately three block long stretch of the-old Firestone Road, which no longer fully fronted on their property. Acess to this remaining portion of Firestone Road was provided by means of an overpass crossing over Interstate 295, connecting with Firestone Road at points north and south of the Stubbs’ property. True, there was still “access”, although their property was placed in a “cul-de-sac” (Stubbs, opinion page 3); but they were also deprived of a portion of their “access” directly by the taking.

Furthermore, in both Stubbs and Anhoco the court emphasized that the takings were for “limited access facilities” under Section 338.04, Florida Statutes. In the Stubbs’ opinion the court said:

“In Florida, F.S., Section 338.04, F.S.A., provides for the taking of ‘private or public property and property rights for limited access facilities and service roads, including rights of access. . . ’ In Anhoco Corporation v. Dade County, 144 So.2d 793 (Fla.1962), at 798, we held that the Legislature ‘specifically required’ compensation for a destroyed right of access under the provision of that Section. . . .” (285 So.2d at page 2)

Since the taking in the case now before the court was not for a “limited access facility”, (Cf. Section 334.03 Definitions of words and phrases. — (4) “Limited access facility”.), the language of the Stubbs and Anhoco opinions cannot be treated as wholly applicable.

Here there is no “destroyed right of access” such as was present in both Anhoco and Stubbs. It is clear from the opinion of this court in Stubbs v. State Department of Transportation, 265 So.2d 425 (Fla. 1st DCA 1972), affirmed State Department of Transportation v. Stubbs, supra, that the key factor in these cases is the actual loss of “access”, incident to the construction of a limited access highway, not mere regulation or interference with traffic flow. Boney v. State Department of Transportation, 250 So.2d 650 (Fla. 1st DCA 1971), relied upon by this court in its Stubbs decision (265 So.2d 425) was a case dealing with destruction of a pre-existing right of access, that is, the right to use one direction of an unopened and undedicated street bordering the appellant’s property. In the Boney de-cisión the court cited Benerofe v. State Road Department, 210 So.2d 28 (Fla. 1st DCA 1968), as authority. It is notable that Benerofe denied compensation for loss of access because there was no “limited access” taking such as would authorize recovery under the Anhoco line of decisions. It is therefore clear that a distinction has been made in awarding or denying damages in the so-called “access” cases based upon whether the taking is or is not incident to construction of a “limited access facility” under Section 338.04, Florida Statutes.

The majority opinion cites Simkins v. City of Davenport, 232 N.W.2d 561 (Iowa 1975). Although that case involved a claim of damages based in part upon the installation of median strips (much-as in the case at bar), the decision appears to have turned upon whether the jury was properly instructed upon the purpose for which they might consider evidence of the existence of the median strips. In the jury instruction, the trial court in effect instructed the jury not to consider the existence of the median strips as a factor in determining the value of the property after condemnation, but instructed them that they might give consideration to their existence for their bearing upon “whether the reduction in means of ingress and egress at the respective curb lines of his property was unduly impaired or lessened” (opinion page 564). In affirming the trial court both upon the question of admissibility of the evidence pertaining to the medians, and the jury instruction, the Supreme Court of Iowa stated the law to be as follows:

“Granted the installation of median strips for the purpose of regulating the flow of traffic is within the exercise of police power, the question is whether in a given circumstance a particular action of the condemning authority in the exercise of that power was proper and reasonable. It must not amount to taking of property without due process of law. . . .” (Simkins v. City of Davenport, opinion' page 566).

The rationale of the Simkins decision seems to be that if the regulatory measure, such as median-strips, substantially deprives the owner of his reasonable or convenient, access to his property, then evidence of the existence of the median strips would be ■admissible, not as a substantive element of damages, but for the purpose of showing that the particular exercise of the police power in installing the medians “was so arbitrary and unreasonable as to be beyond the police power of the condemning authority” (Simkins, opinion page 566). Therefore, concluded the Iowa court, the trial judge was correct in admitting evidence of the existence of the median strips “for the limited purpose permitted by its instructions” (opinion page 566).

Perhaps the question involved in the Sim-kins case might have been raised here. However, it was not. In this case appellant complains of the trial court’s denial of admissibility of evidence for the purpose of showing damages to the property caused by “impairment of access thereto by reason of the construction of a concrete median ,”. Appellant further complained of failure of the trial court to give the following requested jury instruction:

“In determining whether there has been a substantial impairment of access to the defendants’ remaining property, you may consider, as one factor, the effect on access to the remaining property which the proposed median in Thomasville Road may have.”

Thus, appellant made no attempt to have the evidence pertaining to the median, nor the instruction relating thereto, confined to the question of whether the installation of the medians was so arbitrary and unreasonable as to be beyond the police power of the condemning authority, hence sustainable only by the payment of compensation.

The damages of which appellant complains in this case are caused by the installation of the median, not the taking. The citations of authority submitted by appellee convince me that the overwhelming weight of authority holds that such damages are not compensable. There is no justification for allowing consideration of damages by virtue of the median in this case, while denying recovery of such damages by other owners merely because there is no incidental “taking” of any portion of their property. The decision in this case will, I believe, open the door to recovery of damages in eminent domain for changes in the regulation and flow of traffic.

For the foregoing reasons, I respectfully dissent.

      . Quote is from appellant’s Statement of Judicial Acts to be Reviewed.


author: PER CURIAM.'

text:
    STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Richard B. DAVIS, Jr., and Cecil H. Davis, his wife, Appellees.
    No. LL-60.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1979.
    Rehearing Denied Nov. 28, 1979.

      James G. Mahorner and Chester G. Senf, Jr., Tallahassee, for appellant.
    Richard B. Davis, Jr., Jasper, for appel-lees.
   PER CURIAM.'

Appellees purchased property against which there was a recorded lien and then brought suit to quiet title and discharge the lien. The trial court granted a summary judgment for appellees, and the state brought this appeal. We reverse.

In 1966 James Wright applied for old age assistance benefits and gave the Department of Public Welfare, the Department of Health and Rehabilitative Services’ predecessor, a lien on non-homestead property. The affidavit of lien shows that the lien was given for monetary consideration in that Wright would not otherwise have been eligible for public assistance payments. Appellees contend that the enactment of § 409.305, Fla.Stat. (1967), which provided that the state could collect the debt incurred by the acceptance of public assistance only by filing a claim against the recipient’s estate, invalidated the recorded lien. We disagree.

The statute, now found at § 409.345, Fla. Stat. (1977), relates to probate and is not applicable where there was an existing voluntary lien which was executed and recorded prior to the effective date of the statute.

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

McCORD, Acting C. J., and BOOTH and SHIVERS, JJ., concur.


author: PER CURIAM.

text:
    John ELLIS and Marjorie Ellis, husband and wife, Appellants, v. CONTINENTAL CASUALTY INSURANCE CO. and Allstate Insurance Co., Appellees.
    No. NN-324.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1979.
    Robert J. Mayes of Levin, Warfield, Mid-dlebrooks, Magie, Rosenbloum & Magie, Pensacola, for appellants.
    Russell R. Stewart, Panama City, for ap-pellees.
   PER CURIAM.

AFFIRMED. GEICO v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977); Main Insurance Company v. Wiggins, 349 So.2d 683 (Fla. 1st DCA 1977).

We note our decision is also in accord with Travelers Insurance Company v. Pac, 337 So.2d 397 (Fla. 2d DCA 1976) and Hartford Accident and Indemnity Company v. Richendollar, 368 So.2d 603 (Fla. 2d DCA 1979). The Third DCA has held to the contrary. United States Fidelity and Guaranty Company v. Curry, 371 So.2d 677 (Fla. 3d DCA 1979).

We believe that Travelers Insurance Company v. Pac, supra and GEICO v. Taylor, supra represent the better view and decline to recede from our prior ruling.

MILLS, C. J., and McCORD and ERVIN, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    The VALPARAISO BANK AND TRUST COMPANY, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, and Diane E. Meeks, Appellees.
    No. MM-304.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1979.
    James E. Moore of Moore & Anchors, Niceville, for appellant.
    James R. Parks and John L. Brisco, Tallahassee, for Unemployment Appeals Commission, appellee.
   PER CURIAM.

AFFIRMED.

ERVIN, Acting C. J., and SHIVERS, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

The question presented here is whether the employee was discharged “for misconduct” connected with her work and therefore ineligible under Florida Statute § 443.-06(1) for unemployment compensation benefits. I would reverse the order of the unemployment appeals commission and hold that the claimant is disqualified under the amendment to the statute effective July 1, 1977, wherein the legislature provided [§ 443.06(9)]:

“For the purposes of this section, misconduct includes, but is not limited to, . carelessness or negligence or such a degree or recurrence as to . . show an intentional 'and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.”

This enactment is in response to decisions such as Swope v. Florida Industrial Commission, 159 So.2d 653 (Fla.3d DCA 1964), holding violation of the employer’s rule which leads to discharge of the employee will not disqualify because the refusal did not amount to “misconduct”; Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla.3d DCA 1963) holding failure of a grocery cashier to ring up promptly an exact amount payment received by her’ in violation of rule of employer, although it may have demonstrated inadvertence, negligence or poor judgment, did not amount to misconduct and Earp v. Florida Department of Commerce, 241 So.2d 422 (Fla.2nd DCA 1970) holding that an employee who violated her employer’s procedural standards for purchase of merchandise, and was at most guilty of mere negligence or poor judgment, had not committed misconduct disqualifying her from benefits.

The amendment is no more than a recognition of a basic principle of law that intent is inferred from the repeated and recurrent doing of a negligent or careless act. Here the employee was repeatedly warned about her carelessness which resulted in overages and shortages over a period of many months. The testimony was that she was capable of doing the work properly but was careless. Her carelessness was attributed to her habit of talking while she was counting the money and interrupting her count to talk on the phone. Since these are acts over which the claimant clearly had control, their repeated occurrence constitutes the type of carelessness and negligence which amounts to an intentional disregard of her duties and the' rights of her employer as provided by the statute.

The order of the appeals referee, which was affirmed by the commission, states:

“There is no question that the claimant was capable of doing the job, but still made errors in her work. The evidence presented does not indicate anything greater than possibly inefficiency on the part of the claimant. The claimant’s actions are not such that they could be considered as amounting to an intentional disregard of the employer’s interest

That ruling fails to properly apply the amended statute and should be reversed.


author: ROBERT P. SMITH, Jr., Judge. MILLS, Chief Judge, ERVIN, Judge,

text:
    D. C. E., a child, Appellant, v. STATE of Florida, Appellee.
    No. LL-213.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1979.
    Rehearing Denied Nov. 30, 1979.

      Michael J. Minerva, Public Defender, and Carl S. McGinnes and Margaret Good, Asst. Public Defenders, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lee Mandell, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

D. C. E., a minor, appeals from a circuit court order of adjudication that he is a delinquent because he committed disorderly conduct, contrary to a Pensacola municipal ordinance, and possessed alcoholic beverages contrary to Section 562.111, Florida Statutes (1977); Appellant contends (1) the delinquency petition was insufficient to vest the circuit court with subject matter jurisdiction; (2) the disorderly conduct adjudication was an unconstitutional application of the Pensacola ordinance to protected speech; and (3) the evidence of appellant’s possession of alcoholic beverages was seized as the result of an illegal stop.

D. C. E., 17 years of age, leaned from the rear window of a car at a busy intersection and shouted “f_pigs” three times at police officers stopped in traffic at the same intersection. An officer observed appellant drinking what later proved to be a rum drink. Several persons at the intersection turned to see what the commotion was, but when the light changed, traffic moved on without incident. The proprietors and customers of nearby businesses did not seem aware of appellant’s behavior. Within half a block the police stopped the vehicle in which appellant was' riding, observed a bottle of rum in plain view on the front floorboard, then found glasses containing rum drinks and smelled the odor of alcohol on appellant’s breath.

The circuit court had jurisdiction of the delinquency petition. Section 39.02, Florida Statutes (1977). Whether or not violation of the Pensacola disorderly conduct ordinance was an offense on which a delinquency judgment could depend — appellant argues not, because that violation “would [not] be a misdemeanor or a felony if committed by an adult,” Sections 39.-01(27), (10), 775.08, Florida Statutes (1977) —the circuit court had jurisdiction to decide that issue. Disposing of the disorderly conduct issue on another ground, we need not decide whether the circuit court, having jurisdiction, correctly decided the question first mentioned.'

The court also had jurisdiction to decide whether unlawful possession of alcoholic beverages by a minor “would be a misdemeanor or a felony if committed by an adult,” and the court correctly decided that the offense was a misdemeanor qualifying as the basis for a delinquency judgment. Sections 562.11, 562.45. The case is not changed by the fact that an adult coulfl not commit the offense of possession “by a minor” of alcoholic beverages.

Appellant urges that his adjudication of delinquency for disorderly conduct under the city ordinance was improper because his “mere words” were within the ambit of constitutionally protected speech. Amendment I, United States Constitution; Article I, Section 4, Florida Constitution. We agree. D. C. E.’s words cannot be characterized either as “fighting words” which “by their very utterance . . . inflict injury or tend to incite an immediate breach of the peace”, White v. State, 330 So.2d 3 at 7 (Fla.1976), or as a “false report” likely to create “a clear and present danger of bodily harm to others.” State v. Saunders, 339 So.2d 641 at 644 (Fla.1976). See also, Harbin v. State, 358 So.2d 856 (Fla. 1st DCA 1978); Clanton v. State, 357 So.2d 455 (Fla. 2d DCA 1978). Further, the evidence does not support a finding that D. C. E.’s words, by the manner of their use, invaded the rights of others to pursue their lawful activities to such an extent as to take the words out of the constitutionally protected area. Contrast S. H. B. v. State, 355 So.2d 1176 (Fla.1977); Cross v. State, 374 So.2d 519 (Fla.1979). The adjudication of delinquency for disorderly conduct based upon D. C. E.’s use of protected words constitutes an unconstitutional application of Pensacola municipal ordinance 122-16.1, and it is accordingly reversed.

Appellant finally asserts the officers were unjustified, by Fourth Amendment standards, in. stopping the car, which led to their observation of the rum bottle and their detection of an alcohol odor on appellant’s breath. We disagree. Officers may stop and briefly detain an automobile and its occupants when the circumstances create “at least an articulable and reasonable suspicion” that an occupant has violated the law. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Appellant’s unprovoked and obscene verbal attack on the police was constitutionally protected or not depending on all the circumstances. E. g., Cross v. State, supra, in which intoxication was an element, among others, removing the constitutional protection from speech which might otherwise have been privileged. Given the circumstances here, the officers had at least a reasonable suspicion that appellant had violated the municipal ordinance, and that a further inquiry, by stopping the car, was appropriate. Having the right to stop the car, the officers were privileged to observe the rum bottle, then to confirm appellant’s possession and consumption of the alcohol.

Because the single adjudication of delinquency was based on conclusions of law which were erroneous in part, the order of adjudication is REVERSED and cause REMANDED for further proceedings.

MILLS, Chief Judge, concurs in part and dissents in part, and would affirm.'

ERVIN, J., concurs in the judgment of reversal and dissents in part.

MILLS, Chief Judge,

concurring in part and dissenting in part:

I concur in part and dissent in part. I would affirm the trial court’s order in all respects.

I agree with Judge Smith’s opinion that the. trial court had jurisdiction of the delinquency petition and that the officers were justified in stopping the car in which D.C.E. was a passenger because they were justified under the circumstances in having a reasonable suspicion that the municipal ordinance was being violated.

I disagree with Judges Smith and Ervin that the defendant’s unprovoked and obscene language was. constitutionally protected. There is no doubt in my mind that defendant’s words were fighting words which by their utterance inflicted injury and tended to incite an immediate breach of the peace. White v. State, supra.

ERVIN, Judge,

dissenting and concurring.

I agree in all respects with the majority’s opinion except that portion upholding the delinquency adjudication as to the possession of alcoholic beverages. In my judgment the facts do not demonstrate that the intrusion, i. e., the stop of the car, was justified and, since the officer had no right to be where he was, cf. State v. Ashby, 245 So.2d 225, 227 (Fla.1971), he had no right, on the theory of plain view, to seize the rum bottle seen by him within the car.

A stop of an automobile on grounds less than probable cause is a seizure, and the Fourth Amendment applies to determine whether the intrusion is reasonable. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). Thus, when grounds other than probable cause are relied upon to justify the reasonableness of the particular law enforcement action, the act is judged by balancing the reasonableness of the intrusion on the individual’s Fourth Amendment privacy interests against the promotion of legitimate governmental interests. Id. Before the officer is authorized to stop, his observations should lead him reasonably to suspect that the occupants of the particular vehicle are violating the laws or that the vehicle is being operated in violation of the laws. United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Delaware v. Prouse, supra. And, he must be “aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion” of such illegality. United States v. Brignoni-Ponce, supra, 422 U.S. at 884, 95 S.Ct. at 2582. Finally, when a court evaluates the reasonableness* of the conduct on grounds less than probable cause, the circumstances must be judged by an objective standard: “[WJould the facts available to the officer at the moment of .the seizure ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).

Applying the above test to the instant facts, would the utterance of the epithet by the delinquent have warranted a man of reasonable caution in the belief that it was necessary to stop the vehicle upon the ground that the words used were a violation of the disorderly conduct ordinance? I suggest that the present circumstances do not meet that test.

The majority’s opinion rightfully, I think, states that the municipal ordinance is unconstitutional as applied to the manner in which the words were used by D.C.E., yet on the other hand holds that “the officers had at least a reasonable suspicion that appellant had violated the municipal ordinance, . . . .” Ante at 1099. Were this a case of first impression I might be inclined to agree, but disorderly conduct ordinances and similar laws affecting speech have been narrowly limited by the courts of this state for the past several years. For example, in City of St. Petersburg v. Waller, 261 So.2d 151, 158-159 (Fla.1972), the Florida Supreme Court, relying upon Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), stated that a defendant’s conduct may violate a city ordinance proscribing verbal abuse of a police officer when limited only to words having a direct tendency to cause acts of violence. However, “[m]ere displeasure, annoyance or resentment is not sufficient."” Id. at 158. More recently the court upheld Section 877.03, prohibiting conduct involving breaches of peace and disorderly conduct, by narrowing its provisions to circumstances where the verbal conduct tended to inflict injury or to incite an immediate breach of the peace. White v. State, 330 So.2d 3 (Fla.1976). And, before a conviction could be sustained, the state must show more than that the words used were offensive to a part of the general population. Id. at 7. Only last year the court struck down as facially unconstitutional Section 847.04, making illegal the use of profane, vulgar and indecent language, because of the absence of any provision in the statute limiting its application to fighting words directed to another as mandated by Chaplinsky v. New Hampshire, supra. Brown v. State, 358 So.2d 16 (Fla.1978).

The above decisions, as well as those cited in the majority opinion, relating to protected speech, were decided some period of time before.the alleged delinquent acts occurred; as a result, I do not think it behooves us to excuse the officer’s illegal conduct on “reasonable suspicion” grounds. One may reasonably conclude that the officer’s sensitivities were offended by the indelicate language used by the delinquent. The coarse and crude words themselves might well offend a substantial portion of the general population. Still, such verbal injuries cannot serve as justification for seizure of the delinquent. The detaining officer must be charged with knowledge of the laws he seeks to enforce. He either knew or should have known that the delinquent’s conduct was protected. There may be circumstances, although I cannot now conceive of any, where the officer’s ignorance of the law may nevertheless permit his seizure of the defendant oh founded suspicion principles, and serve as a justification for the levying of other charges. I think, however, when we balance the reasonableness of the intrusion upon the individual’s First and Fourth Amendment interests against the promotion of governmental interests, the former must prevail over the latter and the intrusion declared unreasonable. If the officer had no reasonable belief that the law was violated, then clearly he could not seize articles seen by him in plain view if the officer saw them in a place where he had no legal right to be. Compare Delaware v. Prouse, supra; Coladonato v. State, 348 So.2d 326 (Fla.1977); Mullins v. State, 366 So.2d 1162 (Fla.1978). See also Keenan v. State, 372 So.2d 1012 (Fla. 1st DCA 1979).

I would reverse the adjudication of delinquency in its entirety.

      . Pensacola municipal ordinance Section 122-16.1, Disorderly Conduct, provides:
      A. Disorderly Conduct: A person, shall be guilty of disorderly conduct if, with a purpose to cause a breach of the peace, public danger, disorder or nuisance, or with the knowledge that he is likely to create such breach of the peace, public danger, disorder or nuisance, he:

      . Addresses profane, obscene, or abusive language or threats of violence to any person present so as to create a clear and present danger of violence.


text:
    EM’S COFFEE SHOP and Kent Insurance Company, Appellants, v. Ruby TURNER, Appellee.
    No. QQ-4.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1979.
    Rehearing Denied Nov. 28, 1979.
    C. J. Budzinski, Miami, for appellants.
    Robert D. Shapiro, of Wolfson; Appel & Maram, P.A., Miami, for appellee.
   PER CURIAM.

AFFIRMED.

Application for Attorney’s Fees filed by attorney for appellee is granted and said attorney is hereby allowed a fee of two hundred fifty dollars ($250.00) for services in this Court, said sum to be paid to said attorney by appellants after final disposition of this cause.

LARRY G. SMITH, Acting C. J., and SHAW and WENTWORTH, JJ., concur.