author: FERGUSON, Judge.

text:
    James R. HAAS, Appellant, v. Joan G. HAAS, Appellee.
    No. 81-2270.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Anderson & Moss, Daniels & Hicks and Sam Daniels, Miami, for appellant.
    Paige & Catlin, and H. James Catlin, Jr., Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   FERGUSON, Judge.

This appeal challenges an order, entered thirteen months after a Final Judgment of Dissolution of Marriage, which purports to clarify the judgment. Appellant-husband contends that the Final Judgment contains no ambiguity and that the order of clarification effects an improper substantive change, modification or enlargement of the judgment after the court’s jurisdiction had expired. We agree and reverse.

The marriage was dissolved on August 18,1980. The Final Judgment awarded the wife part of the jointly owned business property, rehabilitative alimony and the marital residence. The court reserved jurisdiction for the purpose of awarding attorney’s fees, costs and for enforcement of the judgment.

The present controversy stems from paragraph five of the judgment which provides:

5. The marital residence located at 1241 South Alhambra Circle, Miami, Dade County, Florida is hereby awarded to the Wife as lump sum alimony. The wife shall be solely responsible for and hold the Husband harmless with regard to all mortgages, insurance and tax payments upon said property.

On April 21, 1981 appellant brought an action against the wife for conversion and civil theft seeking recovery of heavy duty tools which had remained in the marital residence. He alleged in the complaint that appellee had willfully refused to surrender his property or had maliciously sold or destroyed the property. Appellee-wife filed her Petition for Clarification of the Judgment of Dissolution, attaching a copy of appellant’s complaint and seeking a declaration that the award of the marital residence included the tools. That declaration was to be used as a res judicata defense to appellant’s suit for conversion.

Appellant’s Motion to Strike the Petition for Clarification was denied. After an evi-dentiary hearing the court entered an order on the petition. The final paragraph of the order states:

3. The court hereby clarifies and makes known its intent that the term “marital residence” in paragraph 5 of the Final Judgment of Dissolution of Marriage entered the 18th day of August, 1980, included, without limitation, all personal property situated and located in or about 1241 South Alhambra Circle on the 18th day of August, 1980.

The question presented for our consideration is whether the term marital residence, where used in a decree making an award of lump sum alimony, includes tools and similar equipment.

Our holding in Vandervoort v. Vandervoort, 277 So.2d 43 (Fla. 3d DCA 1973) which cites Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948), is that a final decree in equity settles all property rights of the parties and bars any action thereafter brought by either party to determine the question of property rights. Appellee argues nonetheless, that under American Savings and Loan Association of Florida v. Saga Development Corporation, 362 So.2d 54 (Fla. 3d DCA 1978) and Boynton v. Canal Authority, 311 So.2d 412 (Fla. 1st DCA 1975) the trial court retained jurisdiction to interpret the original Final Judgment and make known its intent concerning the term marital residence. The holdings in American Savings and Boynton v. Canal Authority are sound but not supportive of appellee’s argument because we think the phrase “marital residence” as used herein is plain and unambiguous.

Neither party has been able to find a single Florida case interpreting the commonly-used phrase “marital residence”. We think the absence of any such case is evidence that the term has a generally accepted meaning. The words “residence”, “home” and “dwelling” are used synonymously and interchangeably. In dissolution proceedings, where the parties cannot agree and the matter is presented as an issue, the court is obligated to adjudicate the rights of the parties as to personal property which was acquired during the marriage — aside from an award of the residence.

The question what is encompassed in the term “dwelling” or “home” has risen in several probate cases; resolution of the question in that context is persuasive authority for the decision we reach in this case. In Massachusetts Audubon Society v. Ormond Village Imperial Ass’n, 152 Fla. 1, 10 So.2d 494 (1942), the supreme court held that the term dwelling, when used in a will to describe a specific property being devised carries with it real property, including the grounds on which the dwelling is located and outbuildings. The issue was squarely presented in McKinley v. McKinley, 483 S.W.2d 310 (Tex.Civ.App., Tyler, 1972) and it was held there that the term “home” as used in a will does not include the furniture, appliances and yard tools. The home was defined as “a dwelling house or habitual abode of [a] family or the place of constant or permanent residence” which “does not include the contents of a house used for a residence.” As a general rule, absent a contrary intention in a will, a devise of a designated house does not include personal property. Accord Tilghman v. Frazer, 191 Md. 132, 153, 62 A.2d 596 (1948); In Re: Ottoveggio’s Estate, 62 Cal.App.2d 880, 145 P.2d 700 (1944); Mann v. Haines, 146 Kan. 988, 73 P.2d 1066 (1937).

Having considered the question presented against a background of common practice in family law matters (which implicitly recognizes that an award of the marital home does not include personal property), and the settled law of probate which is consistent with the practice, we hold that the term marital residence when used to describe the award of the marital home, and contemplating that the receiving spouse or children will continue to reside there, means the real property, fixtures, furnishings and appliances, unless a contrary intention is expressed, but does not include other personal property.

Because heavy duty tools and equipment were not expressly included in the award of the marital residence, and since the term “marital residence” is not broad enough to include them, the court’s clarification of the Final Judgment to award those items to the wife impermissibly changed or enlarged the judgment after jurisdiction had expired. As to property rights not dealt with by the judgment of April 18,1980, the parties were at liberty to litigate them in other separate proceedings. Vandervoort, 277 So.2d at 45.

Reversed.

      . The wife took an appeal from the final judgment and the husband cross-appealed. The appeal was dismissed on stipulation of the parties February 23, 1981 pursuant to Rule 9.350(b), Fla.R.App.P., on a representation that the judgment had been amended by agreement. Upon dismissal of the appeal, the judgment, as amended, became final except as to the alimony award. See § 61.14 Fla.Stat. (1979).

      . See Black’s Law Dictionary 660 (rev. 5th ed. 1979).


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    Sara D. BERMUDEZ, a/k/a Sally D. Bermudez, Appellant, v. Jorge BERMUDEZ, Appellee.
    No. 81-2456.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.

      Maland & Turetsky and Robert C. Ma-land, Timothy K. Mahon, Miami, for appellant.
    Hersh & Bernstein and Brian R. Hersh, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In 1977, the marriage between the appellant, Sara D. Bermudez, and Gustavo L. Bermudez, not a party to this appeal, was dissolved. The final judgment of dissolution incorporated a property settlement agreement which, inter alia, recited that the marital home would be owned jointly by the parties, then sold, and the proceeds divided equally. It appears, however, that unbeknownst to the court, Sara and Gustavo had shortly before the dissolution executed a quit-claim deed conveying the marital home to Gustavo and to their son, the appellee, Jorge M. Bermudez, in exchange for money and a promissory note secured by a mortgage on the property.

Three years later, Sara filed a post-decre-tal motion in the dissolution proceeding seeking to enforce the provision of the property settlement agreement respecting the marital home and, the corollary, to rescind and cancel the quit-claim deed and related instruments. Only Sara and Gusto-vo were parties to this proceeding. The trial court, after conducting an evidentiary hearing, found that Sara executed the deed “in a state of mental weakness and under duress, with no consideration or wholly inadequate consideration and through the undue influence, undue imposition or fraud of [Gustavo].” The court went on to state in its order:

“It is the intention of this Court to rescind and cancel said instruments by subsequent Order. However, as the aforesaid Quit-Claim Deed, Mortgage Deed and Promissory Note named the son of the parties, JORGE M. BERMUDEZ, as a partial Grantee-Mortgagor, JORGE M. BERMUDEZ should be made a party to this action in order to render complete relief to the Respondent/Wife.”

Thereafter, the court, pursuant to Florida Rule of Civil Procedure 1.250, added Jorge as a party, required that he be served with all appropriate pleadings and orders, and provided him time to respond.

Before any further action in the trial court occurred, Gustavo appealed. Jorge, concerned that rights of his may have been adjudicated without his having an opportunity to be heard, joined in the appeal. The Bermudez triangle thus formed, Sara moved to dismiss the appeals asserting (correctly, we think) that the order appealed from did no more than express an intent to rescind and cancel the quit-claim deed, note and mortgage in the future, and resolved no rights of Jorge, who was, admittedly, not yet accorded his due process right to be heard. Thereafter, this court affirmed the trial court’s order without opinion. See Bermudez v. Bermudez, 397 So.2d 780 (Fla. 3d DCA 1981).,

By the time our mandate issued, the case had been reassigned to another trial judge, who, over Sara’s objection, proceeded to conduct a trial on Jorge’s response to Sara’s motion for enforcement of the property settlement agreement between Sara and Gustavo. The trial court, having before it evidence that Jorge had given good and valuable consideration for the quit-claim deed to him and that Sara was neither defrauded nor under duress or undue influence when she deeded the property to Jorge, denied Sara’s motion for enforcement and refused to rescind or cancel Jorge’s interest in the property. Sara appeals.

Sara’s sole contention is that our mandate in the earlier appeal precluded the trial court from taking any action other than rescinding and cancelling Jorge’s interest in the quit-claimed property. We disagree. While it is arguable that the appeals of Gustavo and Jorge should have been dismissed as taken from a non-appeal-able order, our failure to dismiss these appeals does not supply new and greater meaning to the order. The fact remains that our affirmance of the trial court’s order affected no right of Jorge, since, as Sara then argued, the order itself affected no right of Jorge. As the order recognized, Jorge had an interest in the controversy; his rights would be affected by a complete judgment; and without his join-der, the court could not determine the entire controversy concerning the conveyance. Thus, Jorge was a necessary party to any action seeking to cancel or rescind a conveyance which, in part, was made to him. See W.F.S. Company v. The Anniston National Bank, 140 Fla. 213, 191 So. 300 (1939); Carter v. Howarth, 285 So.2d 442 (Fla. 1st DCA 1973); H.P. Trawick, Jr., Florida Practice & Procedure § 4-4, p. 30-31 (1981). Our af-firmance without opinion and the mandate which followed at most approved the. trial court’s findings in respect to the dispute between Sara and Gustavo and its recognition that Jorge’s rights had not and could not be determined without affording him an opportunity to be heard. The hearing which followed our mandate simply and properly determined Jorge’s rights vis-a-vis Sara and was perfectly consistent with our mandate.

Affirmed.

      . Had the order purported to affect the rights of Jorge, who so obviously was not before the trial court as a party, we would have been compelled to reverse.


author: PER CURIAM.

text:
    Joseph LOWRY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 82-39.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Horton, Perse & Ginsberg and Edward Perse, Miami, and Bernard Butts, Hialeah, for appellant.
    Talburt, Kubicki & Bradley and Jon Der-revere and Betsy E. Hartley, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Joseph Lowry appeals from a final order granting summary judgment in favor of State Farm Mutual. Two insurance policies were issued by State Farm Mutual. Policy One was issued to Joseph Lowry, individually, as named insured. Policy Two was issued to Joseph Lowry and to Mrs. Lowry as named insureds. The trial court correctly concluded that to permit stacking in this instance would be a violation of Section 627.4132, Florida Statutes (1977), which prevents stacking separate policies involving the same named insured. See South Carolina Insurance Company v. Kokay, 398 So.2d 1355 (Fla.1981); Stephan v. United States Fidelity & Guaranty, 384 So.2d 691 (Fla. 2d DCA 1980); cf., Cox v. State Farm Mutual Automobile Insurance Company, 378 So.2d 330, 333 (Fla. 2d DCA 1980) (stacking allowed where policies issued to entirely different named insureds).

State Farm Mutual has conceded that with respect to the second issue raised in this appeal Hartford Accident & Indemnity Co. v. Lackore, 408 So.2d 1040 (Fla.1982), is controlling. We, accordingly, remand with directions to modify the final judgment deleting the P.I.P. setoff previously ordered.

Affirmed in part, reversed in part, remanded with directions.


text:
    Alice GOLDBERG, Appellant, v. Eli ROSS, Morris B. Horowitz, Maynard B. Ross, and Fogle, Connelly and Cook, Appellees.
    No. 82-173.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Neil J. Berman, Miami, for appellant.
    Lewis H. Fogle, Jr., Miami, for appellees.
    Before HUBBART, C.J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

We reverse the trial court’s order which denied discovery of a judgment debt- or’s trust fund records held by his attorney upon a holding that the attorney-client privilege does not extend to such records. Ashcraft v. Harvey, 315 So.2d 530 (Fla. 4th DCA 1975); Silverman v. Turner, 188 So.2d 354 (Fla. 3d DCA 1966). Documents which are not privileged in the hands of the client cannot be shielded by transferring them to the attorney. Ashcraft, supra.

Reversed and remanded.


text:
    George B. WEIRES and Evora Russo, a/k/a Evora Marrero, Appellants, v. Edmund P. RUSSO, Trustee, Appellee.
    No. 82-243.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Rehearing Denied Dec. 6, 1982.
    George B. Weires, Miami, for appellants.
    Russo, Allen & Baker, Coral Gables, for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Vogel v. Vandiver, 373 So.2d 366 (Fla. 2d DCA 1979); Horton v. O’Rourke, 321 So.2d 612 (Fla. 2d DCA 1975); Section 86.071 Florida Statutes (1981).


text:
    Alfredo CHI, Appellant, v. The STATE of Florida, Appellee.
    No. 82-334.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Raymond J. Takiff, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Chi was convicted upon his nolo contendere plea in which he preserved his right to appeal the concededly dispositive issue of the propriety of the trial court’s denial of his motion to suppress marijuana found in a search of a fishing boat owned and operated by him. We reverse his convictions upon a holding that (1) there was no evidence giving rise to any reasonable suspicion that the defendant was engaged in illegal activity which justified a stop of the vessel, see State v. Zaira, 408 So.2d 745 (Fla. 3d DCA 1982); (2) since the vessel was stopped by Customs Officers inside the coastline of the United States and there was no evidence that the vessel had crossed the border into the United States, no boarding was authorized under Title 19 United States Code, Section 1581(a) (1980), see State v. Doyle, 409 So.2d 1168, 1169 n. 3 (Fla. 3d DCA 1982), and the border search exception to the probable cause requirement was inapplicable, compare Morales v. State, 407 So.2d 321 (Fla. 3d DCA 1981); and (3) even if, arguendo, the stop and boarding of the vessel were justified, the subsequent search by ripping the bait box from the deck which revealed the marijuana hidden below was wholly without probable cause to believe that a crime was being committed, State v. Casal, 410 So.2d 152 (Fla.), cert. granted, - U.S. -, 103 S.Ct. 50, 74 L.Ed.2d 56 (1982).

Reversed and remanded with directions to vacate the convictions and discharge the defendant.


text:
    Terry ZIEGLER, James Greenbaum, Jeffrey Wallerstein, and Prime Financial Services, Inc., Appellants, v. FRANK, STRELKOW & GAY, Appellee.
    No. 82-461.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Dan Cytryn, Lauderhill, for appellants.
    Frank, Strelkow & Gay and Carl Schmitt, North Bay Village, Richard A. Barnett and Steven B. Dolchin, Hollywood, for appellee.
    Before HUBBART, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the order under review, which, inter alia, found the cause to be a proper interpleader, dismissed the plaintiff-appellee from the action, and temporarily enjoined the defendants-appellants from filing any further actions respecting the interpleaded funds. We hold that (1) the trial court’s denial of the defendants’ motion to dismiss the complaint for inter-pleader which simply challenges the sufficiency of the well-pleaded allegations of the complaint does not end the inquiry as to the propriety of interpleader where the defendants, as here, seek to allege facts not revealed by the complaint, at least some of which, if proved, constitute valid defenses to an interpleader complaint, see Lowry v. Downing Manufacturing Co., 73 Fla. 535, 74 So. 525 (1917); and (2) the propriety of a complaint for interpleader and the dismissal of the interpleading plaintiff is not to be determined, as it was below, without first affording the defendants an opportunity to answer the complaint and raise and be heard on such defenses to it as they might have, Hernandez v. Travelers Insurance Co., 356 So.2d 1342 (Fla. 3d DCA 1978); see Drummond Title Co. v. Weinroth, 77 So.2d 606 (Fla.1955); Hartzog v. Dixon, 366 So.2d 848 (Fla. 1st DCA 1979).-

Reversed and remanded with directions to dissolve the temporary injunction pending further proceedings to be held in accordance with this opinion.


text:
    BUCYRUS-ERIE COMPANY, Petitioner, v. Richard HESSEY and Virginia Hessey, Respondents.
    No. 82-832.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Pyszka & Kessler and Phillip D. Black-mon, Fort Lauderdale, and John C. Hamilton, Miami, for petitioner.
    Bloom & Feola and Thomas Feola, Miami, for respondents.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

An order of discovery which requires a defendant to:

38. Please state the names and addresses of all persons who have complained to you or any of your distributors of malfunctions of the product or any design, defect of the product.
39. Please state the names and addresses of any persons who have made claims against you or started a lawsuit against you for the alleged malfunctions or defect of the product. Include in your answer the correct title, and place of the said action,

is too broad, even if subsequently limited to a seven-year period prior to the incident alleged in the complaint. The order under review which required such, is quashed with directions to limit the response to claims or causes of action relating to reasonable similar occurrences under similar circumstances. Railway Express Agency, Inc. v. Fulmer, 227 So.2d 870 (Fla.1969); City of Miami v. Fraternal Order of Police, 346 So.2d 100 (Fla. 3d DCA 1977); Warn Industries v. Geist, 343 So.2d 44 (Fla. 3d DCA 1977); West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975).


text:
    FINCHER MOTORS, INC., Appellant, v. CARRIAGE TRADE AUTO BROKERS, INCL, and Jack D. Wolf, Appellees.
    No. 82-1176.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Quinton, Lummus, Dunwody & Adams, Miami, for appellant.
    No appearance for appellees.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Although appellee Jack Wolf may eventually establish that he is not personally obligated to appellant under the provisions of section 673.403(2)(b), Florida Statutes (1979), he has not done so within the complaint itself. See Parkway General Hospital, Inc. v. Allstate Insurance Co., 393 So.2d 1171 (Fla. 3d DCA 1981). We therefore hold that the trial court erred in dismissing the complaint, and we reverse and remand for further proceedings.

Reversed and remanded.

       Section 673.403(2)(b), Florida Statutes (1979) states:
      (2) An authorized representative who signs his own name to an instrument:

      (b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity. (emphasis added).


author: THOMPSON, Judge.

text:
    FLORIDA POWER & LIGHT COMPANY, Self-insured, Appellant, v. Howard HAYCRAFT, Appellee.
    Nos. AI-59, AK-391.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1982.
    Rehearing Denied Dec. 2, 1982.
    George F. Taylor, Jr., Miami, for appellant.
    Howard L. Silverstein of Silverstein & Heilman, Miami, for appellee.
   THOMPSON, Judge.

The self-insured employer appeals two workers’ compensation orders. One order was entered pursuant to a petition for modification and awarded claimant temporary total disability (TTD) benefits and permanent total disability (PTD) benefits. The other order awarded claimant’s attorney a fee of $17,500. We agree the deputy commissioner erred in awarding TTD benefits and reverse the modification order in part. We modify the attorney’s fee order.

The issue of whether the claimant was entitled to TTD benefits was ripe for determination at the time of the initial hearing on June 16, 1978 and the claimant should have made any claim for TTD or temporary partial disability (TPD) benefits at that time. A claim for TTD benefits matured at the time the claimant was injured. Only PTD or PPD benefits do not mature until claimant reaches maximum medical improvement. Claimant should have made any claims he might have had for TTD or TPD in the pre-trial stipulation and at the June 16,1978 hearing. No claim for TTD benefits was made in the pre-trial stipulation. Claims for compensation benefits should be determined at a hearing if they are mature and only the determination of immature claims should be postponed until further hearing when they are ripe. The piecemeal litigation of claims after maturity is not permitted. Hunt v. International Minerals and Chemical Corp., 410 So.2d 640 (Fla. 1st DCA 1982). The award of TTD benefits is therefore reversed.

We find no reversible error in the deputy’s finding of a changed physical condition and in using psychiatric testimony to support the modification.

Appellant contends that the $17,500 attorney’s fee awarded the claimant’s attorney is excessive. In his brief, appellee’s attorney agrees that the fee is in excess of the approximately $15,000 statutory fee and states that he would not be adverse to a reduction if warranted by the facts and the law. In his order the deputy commissioner states that he has taken into consideration all the factors set forth in § 440.34, Fla. Stat., Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968), and Orange County School Board v. Van Zant, 400 So.2d 1019 (Fla. 1st DCA 1981), and carefully lists all of the factors that he considered, including the number of hours expended by claimant’s attorney. However, without stating the number of hours expended or without stating the effect, if any, of any of the factors considered he then found a reasonable fee to be $17,500. The mere recitation of the factors considered, without a finding as to which of those factors, if any, should affect the determination of the fee and without an explanation as to why they affect determination of the fee is of no assistance to this court in determining whether the deputy commissioner arrived at a reasonable fee. Since no basis for a deviation from the fee schedule has been shown in this order, we find that a reasonable fee for claimant’s attorney in this case is $15,000. Accordingly, the order awarding claimant’s attorney a fee is modified to provide for a $15,000 fee instead of a $17,500 fee.

The modification order is affirmed in part and reversed in part. The order awarding claimant’s attorney a fee is modified to provide for a $15,000 fee and, as modified, is affirmed.

ROBERT P. SMITH, Jr., C.J., and SHIVERS, J., concur.


author: MILLS, Judge.

text:
    James Raymond GONZALES, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AI-170.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1982.
    James Raymond Gonzales, Miami Beach, pro se, appellant.

      Malcolm S. Greenfield, Tallahassee, for appellee.
   MILLS, Judge.

Gonzales appeals the establishment of his presumptive parole release date (PPRD). We affirm.

Gonzales was initially interviewed by the hearing examiner on 15 October 1980. The examiner’s recommendation was accepted by the Commission on 21 January 1981, but no further action was taken by Gonzales until 2 June 1981. Gonzales did not seek official review until 13 August 1981. Because he failed to seek review of the Commission’s action within 60 days as required by Section 947.173(1), Florida Statutes (1981), he is precluded from raising on appeal these issues which relate to the establishment of his PPRD.

AFFIRMED.

ERVIN and WIGGINTON, JJ., concur.


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Demetrius Cyrus GEORGALIS, Appellee.
    No. 81-2174.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Jim Smith, Atty. Gen., Tallahassee and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Grafton B. Wilson, II, of Schwartz & Wilson, Gainesville, for appellee.
   BERANEK, Judge.

An information was filed against appellee charging him with trafficking in cannabis and methaqualone. Appellee filed a sworn motion to dismiss averring he was acting as a confidential informant to the Federal Drug Enforcement Administration at all times and asserting that because of his agreement and cooperation with DEA he could not be found guilty of the crime charged. The State did not file a traverse, and the trial court dismissed the information.

We affirm. Florida Rule of Criminal Procedure 3.190(d) provides that factual matters alleged in a motion to dismiss shall be deemed admitted unless specifically denied by the State in a traverse. The State having failed to file a traverse here, the trial court had no choice but to assume that the factual matters contained in appel-lee’s sworn motion to dismiss were in fact true. These undisputed facts constituted a valid defense to the crime charged and the trial court properly dismissed the information. Ritter v. State, 390 So.2d 168 (Fla. 5th DCA 1980); Camp v. State, 293 So.2d 114 (Fla. 4th DCA 1974).

AFFIRMED.

HERSEY and DELL, JJ., concur.


text:
    Richard D. JACKSON, Appellant, v. Thomas B. GRIFFITH, Appellee.
    No. 82-188.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Thomas P. Quinn, Fort Lauderdale, for appellant.
    Thomas B. Griffith, Boca Raton, for ap-pellee.
   BERANEK, Judge.

Appellee, Thomas B. Griffith, an attorney, sued appellant, Richard D. Jackson, for attorney’s fees in relation to a real estate transaction. The complaint was based solely on a written instrument signed by appellant, whereby he agreed to pay appellee a fee of $4,000. In its final judgment, the trial court found that the agreement was void because of coercion, duress, and threats directed by appellee against appellant at the time appellant signed the agreement. It was the view of the trial court that appellant would not have signed the document but for said coercion, duress, and threats. The court thus denied appellee’s claim for $4,000. However, the court awarded appellee $1,500 in attorney’s fees on the equitable principle of quantum me-ruit.

We reverse. Initially, we note that appellee did not allege quantum meruit or unjust enrichment in his complaint. Further, appellee did not make a motion to conform the pleadings to the evidence in accordance with Florida Rule of Civil Procedure 1.190(b). In any event, the evidence adduced at trial was insufficient to permit an amendment of the pleadings.

We are also troubled by the court’s award of a fee based on the equitable doctrine of unjust enrichment following on the heels of its finding of coercion and duress. Certainly, an attorney displaying conduct sufficient to void an agreement in law should not be allowed to profit from his blatantly unprofessional conduct in equity.

REVERSED AND REMANDED WITH INSTRUCTIONS TO ENTER JUDGMENT FOR APPELLANT.

HERSEY and DELL, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Robert NEEDLE, Appellant, v. Ethel LOWENBERG, Appellee.
    No. 82-359.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Bennett S. Cohn, Lake Worth, for appellant.
    Kirk Friedland of Altman, Colin & Fried-land, Lake Worth, for appellee.
   GLICKSTEIN, Judge.

In January, 1977, appellant was an experienced real estate broker in Palm Beach County, an officer of a company that issued title insurance policies, and engaged in buying and selling property for his own account. Appellee was a recently licensed real estate salesperson who had sold her home and needed a new residence. She also had been made aware of a condominium apartment available for purchase she believed was owned by Barry Rubin.

When she contacted Mr. Rubin on January 25th, he told her to see appellant. The following day she went to appellant’s real estate office and learned that appellant was the current owner of the apartment. She offered to pay appellant $1,500 for the apartment and to assume the existing mortgage; appellant accepted.

Appellant produced a duly executed warranty deed showing him as grantee and Mr. Rubin and his wife as grantors. At the trial of this cause, appellee testified appellant, at the forty minute conference on January 26th, directed his secretary to delete his name from the grantee section of the deed with correction fluid and to insert appellee’s name in lieu thereof; he assured appellee this procedure was proper. But, more importantly, she testified that he told her he had clear title to the property and made a telephone call in her presence to initiate issuance of a title insurance policy for her protection.

At that time, the parties also signed an agreement wherein appellant, as assignor and in consideration of the $1,500 appellee paid him, agreed to five remunerative conditions: the payment of (1) all back maintenance and (2) mortgage payments, (3) a special assessment, (4) Mr. Rubin, and (5) documentary stamps and surtax on the deed. Appellee further testified that after she recorded the altered deed on January 28th, she unsuccessfully continued to query appellant about the title insurance. In 1978, she eventually learned a judgment against Mr. Rubin clouded her title and informed appellant of her discovery. Nothing, however, was done about the problem for two years, although appellee was able to use the apartment as collateral to negotiate two loans, notwithstanding the cloud on the title.

Finally, in 1980, appellee obtained a copy of the final judgment rendered in 1976 against Mr. Rubin and learned the holder was willing to accept $15,000 to release the property from the judgment; but later it sued to foreclose the judgment lien on her apartment. Thereupon appellee instituted the present third party action against appellant.

Since the judgment entered was adverse to appellee, she borrowed funds and paid the holder $15,000 to release the apartment from the judgment lien — the amount it was demanding immediately prior to the foreclosure sale. The trial court found appellant guilty of fraud, reestablished the copy of the unaltered deed, and declared the altered original deed void. It awarded ap-pellee as damages the $15,000 paid to the judgment holder together with the expenses she incurred in borrowing to pay off the judgment, as well as attorney’s fees, and ordered appellant execute and deliver to appellee a warranty deed to the apartment.

We affirm the final judgment because there was substantial competent evidence to support the trial court’s finding of fraud. Appellant’s defense was that a title insurance company told him the title was clear and he just parroted what he had been told. The trial judge’s order recites that he chose not to believe appellant’s testimony and we are unaware of any effort by appellant to implead the title insurance company as the responsible party. The trial judge obviously believed that any real estate broker reckless enough to alter a fully executed, delivered deed by changing the name of the grantee under these circumstances would be equally reckless enough to represent the title to be free from defects (as appellee testified appellant had done) when it clearly was clouded by the 1976 judgment.

Appellant makes much of the fact that Mr. Rubin’s deposition was used at the trial for the purpose of introducing into evidence that Mr. Rubin told appellant of law suits and/or judgments against him when the title of the apartment was transferred to appellant. But we believe the evidence of fraud was sufficient without the deposition, for scienter exists when a representation is made .without knowledge of its truth or falsity. See First National Bank of Stuart v. Jackson, 267 So.2d 697 (Fla. 4th DCA 1972). Nevertheless, we think it well to discuss briefly what occurred in this regard.

Mr. Rubin’s deposition was duly noticed for April 3, 1981, the same day appellant’s counsel wrote a letter informing appellee’s counsel of his inability to attend. In the letter was a request that appellee’s counsel make a copy of the deposition, if transcribed, for which payment would be made. Appellant’s counsel, however, made no such request of the court reporter (the contrary would have been the expected procedure). Then appellee’s counsel, on October 19, 1981, learned from Mr. Rubin, who had been served with a subpoena for the trial scheduled two days hence, that he was going to be out of the state. Thus, appellee’s counsel hand-delivered a copy of the deposition to appellant’s counsel and informed the latter of his intention to use it.

Thereafter appellant’s counsel did not move to suppress the deposition. Instead, at the end of the first day of trial when appellee’s counsel informed the trial court of his intent to introduce portions thereof the following morning, appellant’s counsel directed an objection to the fact that Mr. Rubin was a resident of Florida. In his objection the following morning to quotations from the deposition, appellant’s counsel stated, without making reference to any applicable Florida Rule of Civil Procedure, that he had not received notice of its transcription. It is unfortunate that Florida Rule of Civil Procedure 1.310(c) is ambiguous in reciting whose obligation it is to notify all parties of a request for transcription—counsel or the officer before whom the deposition is taken. It is equally unfortunate that Florida Rule of Civil Procedure 1.330(d)(4) does not spell out whose errors compel the filing of a motion to suppress. But we are of a mind that, pursuant to the latter rule, appellant’s counsel was required to file a motion to suppress the deposition if he was going to rely on the absence of notice of transcription, notwithstanding the inconsistency of such a stance and the request in his letter of April 3, 1981.

As to the award of attorney’s fees, we affirm. The trial court expressly found in his order that appellant intended to deliver a warranty deed to appellee—which he did, albeit a nullity—and there is no question in our mind that appellee fully expected a warranty deed. Attorney’s fees incurred by a grantee have been upheld when the grantor has breached a covenant of seisin. Williams v. Azar, 47 So.2d 624 (Fla.1950); Nelson v. Growers Ford Tractor Co., 282 So.2d 664 (Fla. 4th DCA 1973). We see no reason why they should be denied when there is a breach of covenant against encumbrances; one that is implicit in this case and pled by appellee, who is entitled to be made whole. Appellant, therefore, should be accountable for all the damages he caused by his reckless and irresponsible conduct.

ANSTEAD and HERSEY, JJ., concur.

      . As stated in 3A C.J.S. Alteration of Instruments § 70, at 332 (1973):
      After execution and delivery of a sealed instrument or deed an alteration has no effect unless there has been a re-execution of the instrument in its altered form.
      It was incumbent upon appellant, when he accepted the deed from his grantor, to pay the excise tax on deeds then required of purchasers by section 201.02, Florida Statutes (1975). In fact, the failure to pay the tax would have been a misdemeanor. § 201.17, Fla.Stat. (1976). Similarly, it was incumbent upon him to execute a separate deed to appellee, whose purchase from appellant imposed upon her the same statutory obligations arising from her purchase.

      . Florida Rule of Civil Procedure 1.310(c) provides in part:
      If requested by one of the parties, the testimony shall be transcribed at the initial cost of the requesting party and prompt notice of the request shall be given to all other parties.

      (Emphasis supplied.)
      The present corresponding federal rule, Federal Rule of Civil Procedure 30(c), does not include the emphasized part.

      . Florida Rule of Civil Procedure 1.330(d)(4) provides:

        As to Completion and Return. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified or otherwise dealt with by the officer under Rules 1.310 and 1.320 are waived unless a motion to suppress the deposition or some part of it is made with reasonable promptness after the defect is, or with due diligence might have been, discovered.

        . See Valdez v. United States, 326 F.2d 598 (9th Cir.1963).


author: HERSEY, Judge.

text:
    FLORIDA EAST COAST RAILWAY COMPANY, a Florida corporation, Appellant, v. BROWARD COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 82-563.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.

      Kenneth L. Ryskamp of Goodwin, Rys-kamp, Welcher & Carrier, P.A., Miami, for appellant.
    Harry A. Stewart, Gen. Counsel & Arthur E. Burrows, Jr., Asst. Gen. Counsel, Bro-ward County; and Samuel S. Goren of Josi-as & Goren, Fort Lauderdale, Special Counsel for Broward County, appellee.
   HERSEY, Judge.

Appellant railroad appeals a non-final order of taking entered in an eminent domain proceeding brought by Broward County to condemn easement rights in the airspace of property owned by the railroad. The purpose of the condemnation action was to secure a clear zone for runway 27L of the Fort Lauderdale-Hollywood International Airport.

Restrictions imposed by a clear zone easement obligate the owners to clear the airspace parcels and keep them free of all intrusions into or encroachments upon them, whether such encroachments are by vegetation or man-made objects. There is a specific prohibition against the growing of thirteen species of vegetation on the land beneath the airspace parcels, whether or not they penetrate the easements. In conjunction with the clear zone easement, the county acquires the right to enter upon the properties beneath the airspace parcels for the purpose of removing all objects at ground level which penetrate the airspace or are likely to do so, in the event the owners refuse to eradicate such impediments.

The land beneath the airspace at issue (Parcel 27L-11) is owned by and presently improved with a single railroad track used by the Florida East Coast Railway Company as part of its mainline from Miami to Jacksonville. The clear zone easement restrictions specifically exempt the routine operation of rolling stock, including switching, on the present track as well as on any other track constructed in the future, permitting the railroad to continue its operation. All of the other numerous and significant restrictions imposed by the terms of the clear zone easement apply to Parcel 27L-11, with such exceptions as are necessary and appropriate to permit the railroad to continue to operate.

Appellant’s objection to the taking is based upon four grounds which we will consider in the order presented.

I. Whether the taking was in violation of the prior public use doctrine.

The parties have stipulated that the traditional prior use doctrine applies to this case. Under that doctrine, property devoted to a public use cannot be taken and appropriated to another or different public use unless the authority to do so has been expressly given by the legislature or may be necessarily implied. Thus, the power of condemnation may not be exercised where the proposed use will destroy an existing public use in the absence of specific legislative authority. Florida East Coast Railway v. City of Miami, 372 So.2d 152 (Fla. 3d DCA 1979). However, when a taking will not materially impair or interfere with or is not inconsistent with the existing use, and the proposed use is not detrimental to the public, then a court possesses authority to order a taking of' the property. Georgia Southern & Florida Railway v. State Road Department, 176 So.2d 111 (Fla. 1st DCA 1965). This exception to the prior public use doctrine is known as the “compatible use” theory.

Here, the taking of airspace above the railway’s property did not materially impair or interfere with nor is it inconsistent with the existing use since the railway’s routine operation is exempted from the easement restrictions. Further, the proposed use is not detrimental to the public. Thus, we conclude that the taking is consistent with and does not violate the prior public use doctrine.

II. Whether the evidence established a reasonable necessity for the taking.

The condemning authority is required to present evidence of the necessity of the condemnation at the Declaration of Taking hearing. City of Jacksonville v. Griffin, 346 So.2d 988 (Fla.1977). To sustain a condemning authority’s exercise of discretion there must be a reasonable necessity for the condemnation, and the exercise of its discretion should not be disturbed absent illegality, bad faith, or gross abuse of discretion. Id. at 988.

Appellant claims that there is no need for the easement since trains will continue to operate through the restricted area. According to appellant, all that was accomplished by the condemnation was a prohibition against parking railroad cars on the tracks. There is little difference, it is argued, in an airplane striking a moving railroad car or a stationary car.

However, the county points out that Federal Aviation Regulations set the boundaries on runway approaches, within which obstructions may not penetrate, to assure reasonably safe operation in such approaches. This does not mean that an airplane will be flying in all of the space provided by the easement; rather a clear zone is necessary for total airport operation, specifically including electronic navigation aids. The county notes that the easement does more than prohibit the parking of railroad cars; it grants the county the right to enter the land to remove nonexcepted obstructions, prohibits certain vegetation, and forbids the construction of railroad communication or signal devices mounted on poles or towers. Thus, according to the county, the easement has accomplished the purpose of providing a clear zone.

By ordering the taking, the court determined that the county had sufficiently demonstrated a necessity for the condemned airspace. That determination is supported by substantial competent evidence.

III. Whether the county invoked sufficient proper statutory authority for the taking.

The county’s eminent domain petition cited as statutory authority Sections 127.01, 125.012(3) and 332.02(2), Florida Statutes (1981), and Chapters 73 and 74, Florida Statutes (1981). Section 127.01 delegates to the county the power of eminent domain, 125.012(3) grants to the county the power of condemnation to acquire any estate or interest in land for airport facilities, Section 332.02 gives municipalities the power to acquire real property for airports, and Chapters 73 and 74 deal with eminent domain in general and supplemental proceedings.

Section 127.01 authorizes a county to exercise the power of eminent domain to take the fee simple title to property or “a particular right or estate in ... property.” Section 73.021 requires that a petition for eminent domain recite the authority for the taking and the use for which the property is being taken. As pointed out by appellant, Section 333.12 specifically refers to the acquisition of air rights and reference to that section in the petition would have been appropriate. We are convinced that appel-lee’s petition nonetheless substantially complied with the statutory requirements in view of its reliance on Section 127.01. See Tosohatchee Game Preserve, Inc. v. Central & Southern Florida Flood Control District, 265 So.2d 681 (Fla.1972).

IV. Whether the trial court erred in ordering the taking based upon the appraisal evidence presented.

In determining the sufficiency of appraisal evidence at a taking hearing, the issue is whether the estimate of value was made in good faith and was based upon a valid appraisal. § 74.031, Fla.Stat. (1981), Valleybrook Developers, Inc. v. Gulf Power Co., 272 So.2d 167 (Fla. 1st DCA 1973). The estimate of value, when deposited into the court registry, secures the landowner in his right to obtain full compensation for the property rights taken. §§ 74.051(2) and 73.071, Fla.Stat. (1981). The estimate does not establish the value of the property rights and a court’s determination that the estimate was made in good faith based upon a valid appraisal is not a finding of just compensation. Rather, after the condemning authority takes possession and title pursuant to a “quick taking” proceeding (Chapter 74), if compensation or severance damages are in issue, a jury is empaneled to make a determination of value. § 73.071, Fla.Stat. (1981).

Here, appellant does not challenge the good faith of the estimate nor does it contend that the appraisal on which the estimate was based was invalid. Accordingly, no error is presented by this point.

Finding no error, we affirm and remand to the trial court for further proceedings.

AFFIRMED and REMANDED.

ANSTEAD and HURLEY, JJ., concur.


text:
    CHEROKEE CRUSHED STONE, INC., Appellant, v. CITY OF MIRAMAR, Appellee.
    No. 82-770.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.

      William D. Ricker, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Edward Paul Kreiling, City Atty., Mira-mar, for appellee.
   OPINION ON MOTION TO DISMISS APPEAL

HERSEY, Judge.

Cherokee Crushed Stone, Inc., appellant here, made application to appellee, City of Miramar, for a special exception required to conduct certain mining operations on land zoned agricultural. From an adverse determination by the City Commission appellant sought review in the circuit court by petition for writ of certiorari. The circuit court, after hearing, issued an opinion in the form of an order denying relief. The present appeal concerns this order of the circuit court. Appellee has filed á motion to dismiss the appeal. Appellant’s response requests that we address the following issue:

DOES ARTICLE Y, SECTION 4(B)(1) OF THE FLORIDA CONSTITUTION GUARANTEE THE RIGHT TO A PLENARY APPEAL FROM A FINAL ORDER OF A CIRCUIT COURT WHICH HAS EXERCISED ITS CERTIORARI JURISDICTION TO REVIEW ADMINISTRATIVE ACTION?

The action of the City Commission was administrative action; however, neither special nor general law has constituted the City of Miramar an “administrative agency” as contemplated by the Administrative Procedure Act and particularly Section 120.52(l)(c), Florida Statutes (1981). Were it otherwise, appeal from the ruling of the City Commission would be directly to this court (rather than the circuit court) by virtue of Section 120.68, Florida Statutes (1981).

We initially considered the motion to dismiss and prepare this opinion without the benefit of the supreme court’s decision in City of Deerfield Beach v. Vaillant, 419 So.2d 624 (1982). That opinion appears to resolve the primary issue posed by appellant’s question but leaves open an important subsidiary question.

As we have indicated, the municipality involved here has not by special or general law been rendered subject to the Administrative Procedure Act and its administrative action is not subject to direct review by a district court. Further there is no provision of general or special law permitting appeal of this municipality’s administrative action to the circuit court. An ordinance of the municipality authorizes the filing of a petition for writ of certiorari with the circuit court to review agency action. While such an ordinance may confer standing on a party to proceed it may not confer jurisdiction on the circuit court where none otherwise exists nor does it determine the scope of review.

There being no review available directly to either the district or the circuit courts, we conclude that review is available only through the trial court’s constitutional power to issue its discretionary writ of certiora-ri.

Resort to the district court from the circuit court in such a case is also limited to a petition for writ of certiorari.

At issue here, then, is the nature and extent of review that should be accorded by the district court to administrative action of an agency not subject to the Administrative Procedure Act and initially not “appeala-ble” to the circuit court by virtue of general, special or decisional law. The answer to this question should depend upon the scope of review which has been or should have been afforded by the circuit court.

Section 4(b)(1) of Article V of the Florida Constitution provides that “final judgments or orders of trial courts, including those entered on review of administrative action” are appealable as a matter of right to the district courts unless they are directly ap-pealable to the supreme court or a circuit court. In City of Deerfield Beach v. Vaillant, 399 So.2d 1045 (Fla. 4th DCA 1981), this court determined that a final judgment of a circuit court acting in its review capacity is not appealable as a matter of right if it has already been “appealed” (by certiora-ri) to a circuit court. The difficulty we now perceive in applying that standard is created by the language of the constitutional provision itself. There are only two trial courts, the county court and the circuit court, and only the latter has jurisdiction to review agency or administrative action. If the term “circuit court” is substituted for the term “trial court” in the paraphrased constitutional provision the seeming non se-quitur is apparent:

District courts of appeal shall have jurisdiction to hear appeals ... from final judgments of circuit courts ... entered on review of administrative action ... not directly appealable to ... a circuit court. [Emphasis added.]

Obviously an appeal may not be taken from one circuit court to another circuit court. The only logical interpretation of the literal language of this provision is that an appeal to the district court is appropriate from any final judgment or order of a circuit court entered on review of administrative action.

The scope of review in such cases has been subjected to scrutiny by this and other district courts of appeal, and now by the supreme court, and divergent views emerge from the case law. The scope of review afforded has depended in the past upon whether the court takes the position that review is by certiorari in the district court (the pyramid hypothesis of Campbell v. Vetter and City of Deerfield Beach v. Vaillant) or by appeal. In Vaillant this court squarely aligned itself with the view that the circuit court provides an appeal of administrative action, reviewable in the district court by petition for writ of certiorari despite the fact that the constitution uses the term “appeal.” Our reasoning was based upon the proposition that review by the circuit court of administrative action, although referred to as certiorari, is not discretionary and in scope is basically the same as an appeal. City of Deerfield Beach v. Vaillant, supra; Campbell v. Vetter, 375 So.2d 4 (Fla. 4th DCA 1979). See also Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1981).

Conflicting with this court’s view in Vail-lant are, inter alia, the following cases: (1) Dade County v. Gayer, 388 So.2d 1292 (Fla. 3d DCA 1980), which states, “Since the final judgment, entered by the trial court on review of the administrative action, has not otherwise been made directly appealable to the Supreme Court, it is, under plain construction of Article V, Section 4(b)(1) ... reviewable here by way of appeal.” But see: Metropolitan Dade County v. Mingo, 339 So.2d 302 (Fla.1976) in which the scope of review was said to be “limited to a determination of whether the circuit court applied the applicable law and acted in accordance with established procedure” which is indicative of certiorari although the proceeding was described as an appeal. See also: United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979), the court stating: “We hold such final judgment [from the circuit court in an original certiorari proceeding] is reviewable here by appeal and deny the motion to dismiss.” And see Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197 (Fla. 3d DCA 1981) holding that certio-rari is the appropriate vehicle to reach the district court where the proceeding in the circuit court was an appeal. (2) Odham v. Petersen, 398 So.2d 875 (Fla. 5th DCA 1981), which also bases review by appeal of a circuit court order entered on review of administrative action on Article V, Section 4(b)(1). See also County of Volusia v. Transamerica Business Corp., 392 So.2d 585 (Fla. 5th DCA 1980), which determined that where “the petition for certiorari in the circuit court was an original proceeding requesting that court to review the administrative order ... [a]n appeal from that order to this court is proper,” citing to Article V, Section 4(b)(1); The Florida Companies v. Orange County, 411 So.2d 1008 (Fla. 5th DCA 1982), which stated that since the circuit court was acting in review of administrative action, appellant had a right of appeal from the circuit court’s order denying certiorari.

Norman v. Pinellas County, 250 So.2d 279 (Fla. 2d DCA 1971), does not directly conflict with Vaillant because it was not decided pursuant to Article Y, Section 4(b)(1). On the other hand, Norman did indicate that a “constitutional right of appeal” was available to review a circuit court order entered on review of administrative action.

Several arguments are made against construing Section 4(b)(1) as providing a right of appeal from an order of the circuit court entered on review of administrative action. One such argument is that the parties are then afforded, in effect, several appeals, a right not even accorded to criminal defendants. Thus, an administrative order may be “appealed” to the circuit court and the circuit court’s decision then reviewed again by the district court. It has been argued that such a chain of review is contrary to traditional concepts of appellate review, may operate to lengthen the process of exhaustion of administrative remedies, and, incongruously, to provide parties in administrative actions greater review rights than are afforded to civil litigants and criminal defendants.

It has also been argued that interpretation of Section 4(b)(1) as not extending the right of appeal to orders entered by the circuit court on review of administrative action is supported by Rule 9.030(b)(1)(A) and (2)(B), Florida Rules of Appellate Procedure. Those portions of the rule provide:

(b) Jurisdiction of District Courts of Appeal.
(2) Certiorari Jurisdiction. The certio-rari jurisdiction of district courts of appeal may be sought to review.
(B) final orders of circuit courts acting in their review capacity.

Although this rule, adopted subsequent to the constitutional revision, “is not intended to affect the substantive law governing the jurisdiction of any court and should not be considered as authority for the resolution of disputes concerning any court’s jurisdiction” (committee notes), it has been suggested that the supreme court’s action in adopting the rule is an indication (however slight) of its construction of Article V, Section 4(b)(1).

We have previously alluded to the additional and related problem of defining the district court’s scope of review where an appeal is taken from a circuit court order entered in its review capacity. According to the court in The Florida Companies v. Orange County, supra, when a district court is acting on plenary appeal from denial of a writ of certiorari, its scope of review is identical to that of the circuit court, that is, to determine whether the administrative body acted within its jurisdiction, whether it departed from the essential requirements of law, and whether its decision was supported by substantial competent evidence. This differs from the view we have previously adhered to that a plenary appeal is not available under such circumstances and that the triangle hypothesis available by certiorari is the only available method of review. Vaillant, supra.

Summarizing the arguments against permitting an appeal under the circumstances involved in the case on review: (1) a party is thereby afforded more than one appeal from administrative action; (2) one possible interpretation of the appellate rules favors certiorari over appeal; and (3) the scope of review may be variously and therefore confusingly defined depending upon the vehicle the district court permits to be utilized to obtain review. A final argument might well be made (and indeed is made here) that this district is committed by precedent to a contrary view (which now bears the imprimatur of the supreme court).

The constitutional right of appeal referred to in some of the cases was discussed and analyzed in State v. Furen, 118 So.2d 6 (Fla.1960). There, the court determined that an “appeal” to the circuit court was authorized only pursuant to Article V, Section 6(3) which at that time defined the jurisdiction of the circuit courts to be “original jurisdiction of actions of forcible entry and unlawful detainer, and of such other matters as the legislature may provide.” The Furen court reasoned that the circuit court in reviewing (pursuant to statute) an administrative order was actually exercising original jurisdiction for which there was a right of direct appeal to the district court. (The circuit court’s jurisdiction is now defined in Section 5(b) of Article V of the Florida Constitution, quoted earlier. The pertinent provision reads: “They shall have the power of direct review of administrative action prescribed by general law.”)

It is obviously appropriate that administrative action emanating from an agency which is subject to the Administrative Procedure Act, (APA) with its built-in procedural safeguards, be treated differently, for review purposes, than the administrative action of an agency whose operations are not so circumscribed. It is this latter situation with which the Supreme Court was confronted when the rule in State v. Furen, supra, was promulgated. The philosophy underlying the opinion in Furen may have little application in proceedings brought to review the action of an agency which has proceeded under the subsequently enacted APA. Many of the dangers which Furen was designed to ameliorate are at least conceptually addressed by the Act so that judicial intervention may be minimized. In fact the major thrust of that case will have no application whatsoever since resort to the circuit court is eliminated as a procedural step in the review of administrative action subject to the Act. On the other hand Furen and its concerns should have continued viability in the area of review of actions of administrative bodies whose activities are not circumscribed by the safeguards built into the Act and where resort to the circuit court remains the only practical option for initial review of administrative action. Such a situation is exemplified by the instant case.

Furen suggested that when the circuit court sits in review of administrative action it sits as a trial court. This follows from the proposition that administrative action becomes a “judicial case” only when brought to the circuit court, thus the “case” originates in that court. Because proceedings conducted prior to filing of the case with the circuit court “are so often conducted without regard to proper decorum or observance of the rules for introduction or consideration of evidence, the work of the circuit court consists largely in preparing an intelligent and orderly ‘ease’ for review by the appellate court.” It follows, held the Supreme Court, that the district court must accord an appeal from the judgment of the circuit court rather than review by the more limited (and discretionary) writ of cer-tiorari.

We have now come full circle to the more recent supreme court pronouncement on this issue in Vaillant. It seems clear that Furen, to the extent that its rationale and holding are inconsistent therewith, have been overruled by Vaillant. An issue seemingly unresolved by Vaillant is exemplified by the following language in that opinion:

We hold that where full review of administrative action is given in the circuit court as a matter of right, one appealing the circuit court’s judgment is not entitled to a second full review in the district court. Where a party is entitled as a matter of right to seek review in the circuit court from administrative action, the circuit court must determine whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence. The district court, upon review of the circuit court’s judgment, then determines whether the circuit court afforded procedural due process and applied the correct law.

The problem lies in determining whether, in a particular case, “a party is entitled as a matter of right to seek review in the circuit court from administrative action.” We have previously adverted to the three possibilities: (1) action by an agency within the penumbra of the Administrative Procedures Act which is appealable directly to the district court; (2) action by an agency which the law makes appealable to the circuit court; and (3) action by an agency which is reviewable only by certiorari to the circuit court. It is this latter category into which the present case falls and it is this category which appears, at least on literal terms, to be one in which a party has no entitlement, as a matter of right, to seek review by appeal in the circuit court. In order to resolve this impasse we interpret the supreme court’s holding in Vaillant as impliedly affirming our underlying premise in Campbell v. Vetter, quoted with approval in our version of Vaillant (399 So.2d 1045 (Fla. 4th DCA 1981)) that review by certiorari under these circumstances is mandatory, not discretionary, and that the scope of review by the circuit court includes determinations as to whether the administrative agency:

1. Accorded procedural due process;
2. Observed the essential requirements of the law; and
3. Supported its findings by substantial competent evidence.

Under such a rule it becomes clear that “full review of administrative action is given in the circuit court as a matter of right.”

We therefore treat the present proceedings as an application for review by certio-rari and the parties are requested to proceed accordingly.

The motion to dismiss otherwise is denied.

DELL and WALDEN, JJ., concur.


text:
    Wes BRANDT, Appellant, v. Robert H. DOLMAN, Appellee.
    No. 82-786.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Rehearing Denied Dec. 3, 1982.

      R. Daniel Koppen of Koppen & Watkins, Miami, for appellant.
    Marilyn P. Liroff of Weaver & Weaver, P.A., Fort Lauderdale, for appellee.
   HERSEY, Judge.

This appeal arises from a non-final order denying a motion to set aside a default.

Appellant, Brandt, was named co-defendant in an action brought against him and a corporation. An agent of the corporation advised Brandt that its counsel would represent both defendants in the action. Corporate counsel neglected to file a pleading on behalf of Brandt and a default was entered. Twelve days thereafter Brandt moved to set aside the default averring the existence of a bona fide defense. That motion was denied.

It is well established that under appropriate circumstances courts should liberally set aside defaults so that controversies may be determined on their merits. County National Bank of No. Miami Beach v. Sheridan, 403 So.2d 502 (Fla. 4th DCA 1981); North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). As a prerequisite to relief from a default the movant must establish that his neglect was excusable. Clark v. Roberto’s, Inc., 320 So.2d 870 (Fla. 4th DCA 1975). Brandt’s inaction here falls within the penumbra of the term “excusable” as it has been applied in these cases. See, e.g., Travelers Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977); Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977). A meritorious defense must also be alleged. County National Bank of No. Miami Beach v. Sheridan, 403 So.2d 502 (Fla. 4th DCA 1981). This condition too was satisfied by Brandt.

A third condition precedent which is frequently but not uniformly imposed, is that the movant exercise due diligence upon learning of the default. See, e.g., Westinghouse Credit v. Steven Lake Masonry, 356 So.2d 1329 (Fla. 4th DCA 1978). Action taken within twelve days as in the instant case clearly meets the criteria of due diligence.

The motion to set aside default should have been granted because the appellant fulfilled all the prerequisite conditions. We therefore reverse the order and remand to permit the trial court to grant vacation of the default. The appellant may then file an appropriate response to the complaint, so that both the claim and the defenses to it may be considered on the merits.

REVERSED and REMANDED.

ANSTEAD and WALDEN, JJ., concur.


text:
    Gregory Anthony PRICE, Petitioner, v. The Honorable Marvin U. MOUNTS, Jr., Respondent.
    No. 82-1413.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.

      Joseph L. Schneider of Leen & Schneider, Hollywood, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for respondent.
   HERSEY, Judge.

This petition for writ of certiorari arises from a pretrial order declining to adjudicate defendant/petitioner indigent in order to have the county absorb the reasonable costs of discovery. Initially we note that the record reflects that there was no adjudication of indigency. Petitioner’s friends are paying his attorney’s fees. The trial court refused to award petitioner the costs of discovery because it found as a matter of law that a defendant must accept the services of a public defender as a condition precedent to being awarded discovery costs.

Defendant filed an alternative petition for writ of mandamus or common law cer-tiorari asking this court to review the trial court ruling. We decline to consider the petition for a writ of mandamus; we treat the petition for a writ of certiorari as that is the appropriate method of review under the circumstances.

Our consideration of the merits of this petition is influenced by the recent ruling of the Third District holding that an insolvent defendant is not required to accept the services of a public defender as a prerequisite to obtaining reasonable discovery costs. Johnson v. Snyder, 417 So.2d 783 (Fla. 3d DCA 1982). The Florida Rules of Criminal Procedure, sections 3.111(b)(4) and 3.220(k) make the state’s payment of the costs of discovery contingent only on defendant’s indigency; that is, the inability to pay these costs without substantial hardship to himself.

We agree with the rationale of the Third District and hold in accord with Johnson that the trial judge departed.from the essential requirements of law. For these reasons, we grant the writ of certiorari, quash the order and remand the cause for a hearing and determination as to petitioner’s in-digency.

GLICKSTEIN and WALDEN, JJ., concur.


text:
    Glasfory WILLOUGHBY, Petitioner, v. SEESE REALTY INC., and Brocato and Company, Inc., Respondents.
    No. 82-1599.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Rehearing Denied Nov. 29, 1982.

      David S. Nunes, Port Lauderdale, for petitioner.
    Mark S. Schecter of Mark S. Schecter, P.A., Port Lauderdale, for respondents.
   BERANEK, Judge.

Petitioner seeks a writ of certiorari quashing the order of the Circuit Court which affirmed an order of the County Court denying his motion to vacate a default. We grant certiorari.

A suit for a brokerage commission was filed in County Court on November 11, 1980. Petitioner was served by the Sheriff leaving a summons at his door. He failed to file an answer and the clerk entered a default against him on March 18, 1981. A final judgment was entered on June 3,1981. Thereafter, petitioner served a motion to vacate the default contending that the judgment was void because service was improper. The County Court denied this motion, as well as the subsequent motion for rehearing. Petitioner appealed to the Circuit Court, which affirmed. Petitioner now seeks review by way of certiorari.

Florida Rule of Civil Procedure 1.540(b) gives five reasons for relief from judgment, one being that the judgment or decree is void. Petitioner asserts that the judgment is void because service of process was improper. Section 48.031(1), Florida Statutes (1981), provides for service by delivering a copy of the summons and complaint to the person to be served, or by leaving the copies at his usual place of abode with any person residing therein who is 15 years of age or older, and informing the person of their contents. A review of the return of service in this case demonstrates that the summons and complaint were not delivered to petitioner or anyone else but were simply left at petitioner’s door. This was improper service and the judgment based thereon should have been set aside. Respondents fail to address the issue of defective service in their response to the petition. Instead, they concentrate on petitioner’s failure to adequately prove mistake, inadvertence, surprise or excusable neglect. Although most motions to vacate a default are based on excusable neglect, Rule 1.540 does provide other means of vacating a judgment. If petitioner can demonstrate, as was done here, that the judgment is void, he is not also compelled to show there was excusable neglect. We thus conclude that the Circuit Court deviated from the essential requirements of law in affirming the County Court’s erroneous rulings. The Circuit Court’s affirmance is vacated and the matter remanded to the Circuit Court with directions to remand it to the County Court with instructions to grant the motion to vacate the default and judgment.

CERTIORARI GRANTED.

DOWNEY and HERSEY, JJ., concur.


author: RYDER, Judge.

text:
    Vincent BEKIEMPIS and Home America Realty, Inc., Appellants, v. DEPARTMENT OF PROFESSIONAL REGULATION, Board of Real Estate, Appellee.
    No. 82-187.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 1982.
    Malcolm V. McKay of McKay & Thomas, Tampa, for appellants.
    Salvatore A. Carpino, Tallahassee, for ap-pellee.
   RYDER, Judge.

Bekiempis and Home America Realty, Inc. appeal from the order of the Department of Professional Regulation (Department), Board of Real Estate (Board), suspending their real estate broker’s licenses and imposing fines. We reverse.

Appellee Department of Professional Regulation filed several administrative complaints against Bekiempis and Home America. One complaint directed at Bek-iempis involved misrepresentation during the sale of a home to Ronald Faber. Following a hearing, the hearing officer made findings of fact and concluded that all the administrative complaints should be dismissed. In regard to each alleged misrepresentation in the Faber complaint, the recommended order found that either the evidence was insufficient or that no intentional misrepresentation, as contemplated by Section 475.25(l)(a), Florida Statutes (1975), occurred.

Appellee Department filed exceptions to the recommended order accepting the hearing officer’s findings of fact but objecting to the conclusions of law and recommendations. The exceptions requested the Board to make supplemental findings of fact “as to those areas in which the Hearing Officer did not make findings of fact,” that Bek-iempis did make the misrepresentations as charged. The Department then asked that the Board find Bekiempis guilty of violating Section 475.25(l)(b), Florida Statutes (1975), by false promises, misrepresentation, fraudulent scheming, and breach of trust, and suspend or revoke his license, and fine him $1000. The final order rejected the recommended order of the hearing officer to the extent the findings of fact and conclusions of law were inconsistent with the Department’s exceptions and adopted by reference the findings of fact and conclusions of law contained in the exceptions. The order suspended the license of each respondent, Bekiempis and Home America, for one year and fined each $1000.

On appeal, the parties agree that Home America was not a party to the complaint regarding Faber. It was thus error for the Board to suspend its license and impose a fine for violations in that case. We therefore reverse the final order as to Home America and remand to the Board with instruction to dismiss the administrative complaint against Home America.

In regard to the appeal of Bekiem-pis, we hold that the Board’s final order is inadequate to withstand Section 120.-57(l)(b)(9), Florida Statutes (1975), which provides:

The agency in its final order ... may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence....

We have previously held that the Board may not enter a conclusionary rejection of the hearing officer’s findings without stating with particularity which findings are rejected and why. Lewis v. Department of Professional Regulation, 410 So.2d 593 (Fla. 2d DCA 1982). See Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982); Kout v. Department of Professional Regulation, 405 So.2d 435 (Fla. 3d DCA 1981). We now hold that the Board may not avoid this requirement by adopting by reference “supplemental findings” which directly conflict with those of the hearing examiner and then base the final order on the supplemental findings. The Board below never stated with particularity which findings were not based on competent, substantial evidence. It merely substituted its own findings by adopting the exceptions, in effect taking another view of the evidence reargued by the Department.

Accordingly, pursuant to section 120.-68(13)(a)(l), we vacate the final order for violation of the particularity requirement of section 120.57(l)(b)(9) and remand with instructions to the Department to conduct such further proceedings necessary to produce a final order consistent with this opinion.

GRIMES, A.C.J., and DANAHY, J., concur.


author: BOARDMAN, Judge.

text:
    D.M., a child and E.M., a child, Appellants, v. STATE of Florida, Appellee.
    Nos. 82-317, 82-318.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 1982.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

D.M. and E.M., who are juveniles, appeal their placement in a community control program. We reverse.

At appellants’ adjudicatory hearing, the state called as a rebuttal witness an individual who was not listed as a witness as required by Florida Rule of Criminal Procedure 3.220(a)(l)(i). Appellants timely objected to the state’s calling this witness because he was not listed, but the trial court allowed the witness to testify without conducting a Richardson inquiry.

As this court clearly stated in Potts v. State, 403 So.2d 443, 446 (Fla. 2d DCA 1981):

Rebuttal .witnesses are not an exception to the requirements of Florida Rule of Criminal Procedure 3.220(a)(l)(i). Once a failure to disclose the name of a witness is called to the attention of the trial court, an inquiry must be held to determine whether the state’s failure was willful, whether or not the effect of the omission is substantial and whether it prejudiced the accused’s preparation for trial. Failure to do so requires reversal.

(Citations omitted.)

Accordingly, we REVERSE and REMAND this cause for a new adjudicatory hearing.

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

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


text:
    SERVIDONE CONSTRUCTION CORPORATION, Appellant, v. SOUTHEAST MATERIALS CORPORATION, Appellee.
    No. 81-2384.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1982.
    Charles F. Clark and Ted R. Manry, III of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Michael C. Addison, Tampa, for appellee.
   PER CURIAM.

After carefully reviewing the record and briefs in this case, we have concluded that the trial court erred in reasoning that the riprap and bedding stone was delivered “as needed” in accordance with the contract terms solely on the basis of its finding that the progress of the construction project in which appellant Servidone Construction Corporation was engaged was not impeded by the absence of materials appellee Southeast Materials Corporation was to supply. Nevertheless, the remaining findings by the trial court are supported by the evidence and are sufficient to sustain the final judgment.

Accordingly, the final judgment is AFFIRMED.

BOARDMAN, A.C.J., and RYDER and DANAHY, JJ., concur.


text:
    Gean Claude PAUL, a/k/a Gean Clark Paul, Appellant, v. STATE of Florida, Appellee.
    No. 82-90.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1982.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, while on probation for an earlier offense, allegedly committed two armed robberies, one of a Farm Store and a second of a furniture store. While we find no error and therefore affirm the trial court’s revocation of probation, we remand the revocation order for certain corrections.

At appellant’s revocation hearing, no evidence was presented to prove that appellant committed the robbery at the Farm Store. Furthermore, the “weapon” used by appellant in the furniture robbery was a toy gun. As such, it did not constitute, nor was it used as, a deadly weapon.

Therefore, that portion of the order finding that appellant committed a robbery of the Farm Store should be stricken, and the “armed robbery” at the furniture store should be corrected to read “robbery.” Otherwise, we affirm the order and the judgment and sentence.

OTT, C.J., and HOBSON and CAMPBELL, JJ., concur.


text:
    Elizabeth B. BOLTON, Appellant, v. William O. BOLTON, Appellee.
    No. 82-201.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1982.
    Walter E. Smith of Meros, Coit, Edman, Meros, Smith & Meros, P.A., St. Petersburg, for appellant.
    John T. Allen, Jr. and Michael J. Keane of John T. Allen, Jr., P.A., St. Petersburg, for appellee.
   RYDER, Judge.

Elizabeth B. Bolton appeals from the terms of a final judgment of dissolution of marriage, alleging that the lower court erred in awarding appellee William 0. Bolton a one-half interest in a home individually owned by appellant. We agree and reverse.

Following appellant’s petition for dissolution, appellee counter-petitioned asserting an undivided one-half interest in the marital home, special equity in that property, and requesting partition and sale of the home. Subsequently, the parties stipulated to amend the pleadings to permit the request for all relief available under the decision of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The lower court heard evidence and entered a final judgment awarding appellee an undivided one-half interest in the marital domicile.

The parties were married in 1962. At that time, neither party had assets other than an automobile and each had a college degree. Shortly after the marriage, appel-lee attended dental school. Appellant paid appellee’s tuition and the parties’ living expenses. Appellee became a practicing dentist in St. Petersburg, and the home in question was purchased there for $19,000 in 1969. Appellant negotiated for purchase of the property and took title in her name alone. Although appellee signed the note and mortgage, he did not learn that the property was not titled jointly for several years.

The parties have not lived together since 1973, when appellant returned to the Florida State University to receive a postgraduate education degree. Appellant took a job in Richmond, Virginia from 1975-77 and is currently employed by the University of Florida Co-Operative Extension Service. From 1973 on, appellee alone lived in the home in question, paying all expenses and mortgage payments. During the course of the marriage, five dissolution proceedings were instituted; two were filed before purchase of the home in 1969.

Appellant argues on appeal that no special equity was either pled or proven, since appellee made no contribution to the home over and above his marital duties. Appellant suggests that lump-sum alimony was neither pled nor indicated by the needs of appellee or ability of appellant wife to make such a payment. Appellant points out that the court may not dispose of property interests by equitable distribution. Powers v. Powers, 409 So.2d 177 (Fla. 2d DCA 1982).

Appellee replies that the lower court found the house to be owned by both parties, who intended that appellee would have his name on the deed. Appellee suggests the award is sustainable as lump-sum alimony because appellant had the ability to turn over the one-half interest and appellee had no other place to live. Appellee suggests further that he has a special equity in the home since he alone maintained it since 1973.

We hold that no competent, substantial evidence appears in the record below to support the award either as lump-sum alimony or a special equity. Nothing was adduced below to show either that appellee needed financial support from appellant or that appellee contributed to the home asset from a source unconnected to the marriage. See Canakaris, supra. There was testimony tending to support reformation of the deed on the theory that the parties intended ap-pellee’s name to appear on the deed. However, appellee did not plead or seek reformation and cannot now introduce that theory on appeal.

We reverse the aspects of the final judgment below dealing with the parties’ property and remand for retrial on those issues, without prejudice to appellee to seek reformation of the deed on appropriate pleadings.

GRIMES, A.C.J., and DANAHY, J., concur.


author: CAMPBELL, Judge.

text:
    FORD MOTOR CREDIT COMPANY, a corporation, and First Federal Savings and Loan Association of Winter Haven, Appellants, v. Robert SIMMONS, Vernon Simmons and Jessie M. Simmons, Appellees.
    No. 82-309.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1982.

      Roy C. Summerlin and Debra L. Cline, of Summerlin, Connor & Braisted, Winter Haven, for appellants.
    Stephen F. Baker, Winter Haven, for ap-pellees.
   CAMPBELL, Judge.

Appellants seek review of the dismissal of their complaint whereby the circuit court was asked to exercise its equitable jurisdiction to set aside a mistakenly entered satisfaction of a judgment of the county court. We affirm.

On September 24, 1979, the Polk County Court entered final judgment in favor of Ford Motor Credit Company and against Robert, Vernon, and Jessie M. Simmons, for $1,917.84. One month later, the county court clerk issued a writ of garnishment which was served on First Federal Savings and Loan Association of Winter Haven. First Federal then placed a hold on the balance of depositor Robert Simmons’ account and responded to the writ by reporting an indebtedness to Robert Simmons of $1,990.74.

On December 5, 1979, the county court entered final garnishment judgment against First Federal and ordered payment of $1,965.61 to Ford Motor Credit Company. First Federal complied, and debited Robert Simmons’ account. Ford Motor Credit then issued and recorded a satisfaction of this final judgment on December 17, 1979.

Later, depositor Robert Simmons proved that he was not the same Robert Simmons named in the earlier law suit. Accordingly, First Federal reimbursed depositor Simmons for the amount debited earlier.

On April 9, 1981, Ford Motor Credit and First Federal filed a complaint in the circuit court, invoking its equitable jurisdiction to vacate the satisfaction and reinstate the final judgment entered in favor of Ford Motor Credit. The Simmonses filed a motion to dismiss the amended complaint contending, inter alia, that the circuit court lacked subject matter jurisdiction to set aside a satisfaction entered in a county court. The trial judge declined to assert equity jurisdiction and dismissed the amended complaint, saying that there were adequate remedies at law available, and the plaintiffs appealed.

We first must determine if a motion for relief in the original action in the county court pursuant to rule 1.540(b), Florida Rules of Civil Procedure, should have been the exclusive remedy. We have previously held that where relief is provided for by that rule, it is the exclusive remedy available, except for actions based upon fraud upon the court. Erhardt v. Erhardt, 362 So.2d 70 (Fla. 2d DCA 1978). Here, if the plaintiffs could only obtain relief pursuant to the rule, the action would have been barred by reason of the one year limitation on actions for relief based upon mistake or inadvertence.

Rule 1.540(b), Florida Rules of Civil Procedure, provides that a court may grant relief from “a final judgment, decree, order or proceeding” on the ground of mistake, and other specifically enumerated grounds. Although the rule does not clearly include a satisfaction as “a final judgment, decree, order or proceeding” from which relief may be obtained, we believe that it is reasonable to conclude that under the proper circumstances the rule can be used to set aside a satisfaction mistakenly entered. We, therefore, disagree with the decision of the Montana Supreme Court in McGee v. Burlington Northern, Inc., 585 P.2d 1296 (Mont.1978), in which they interpreted their similar rule as not including a satisfaction of judgment as “a final judgment, decree, order or proceeding” from which relief might be obtained. Our disagreement with this decision illustrates the lack of clarity in the rule. Accordingly, we conclude that because the type of relief sought here is not clearly set forth in the rule, it is, therefore, not the exclusive remedy available to a party seeking removal of a satisfaction mistakenly entered.

We next must determine whether other relief was available that would prohibit the circuit court from exercising its equitable jurisdiction. Every court of law possesses inherent equitable power sufficient to control its own judgments, and this includes power to set aside a satisfaction of one of its own judgments. George Thatcher Corp. v. Bullen, 108 Utah 562, 162 P.2d 421 (1945). This may be accomplished by motion in the original action, Lambert v. Hill, 181 Okl. 225, 73 P.2d 124 (1937), or by an independent action brought specifically for that purpose in the court which entered the judgment. Lambert

For the above reasons, we conclude that the circuit court lacked jurisdiction in that the plaintiffs have available a means of relief in the county court that rendered the judgment in the original action. Bates v. Hall, 251 Ky. 280, 64 S.W.2d 585 (1933).

AFFIRMED.

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

      . This is the sum of the $1,917.84 amount set in the original motion, post-judgment interest of $9.77, post-judgment costs of $6.00, and court costs of $32.00.

      . Florida Rule of Civil Procedure, rule 1.540(b):
      (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment or decree is void; (5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise ,/acated or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, decree, order or proceeding was entered or taken.


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

text:
    GENE’S HARVESTING and Florida Farm Bureau Insurance Co., Appellants, v. Jesus RODRIGUEZ, a/k/a Augustine Tassaint, Appellee.
    No. AJ-166.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.
    James M. Hess of Driscoll, Langston & Kane, Orlando, for appellants.
    Thomas R. Mooney of Meyers, Mooney, Adler & Hammond, P.A., Orlando, for ap-pellee.
   ROBERT P. SMITH, Jr., Chief Judge.

We affirm the deputy’s order finding that appellee, an alien illegally in this country, is entitled to Chapter 440 benefits for a work-related injury notwithstanding his immigration status. Section 440.02(2)(a), Florida Statutes (1980 Supp.), specifically included aliens among those “employees” entitled to benefits, and nothing in the statute suggests that workers not lawfully immigrated are excluded. See White v. Conoley Fruit Harvesting, Inc., IRC Order 2-3877 (1979). Appellants’ other points have no merit.

AFFIRMED.

SHIVERS and THOMPSON, JJ., concur.


author: McCORD, Judge.

text:
    Mary DYE, as Personal Representative of the Estate of Ernest James Hill, Deceased, Petitioner, v. Mary B. HOUSTON and Ellis Arnold Rogers, as Personal Representatives of the Estate of Lillian Rogers Allbritton, Deceased; Delores P. Daughtry, as Personal Representative of the Estate of Harvey Daughtry, Deceased; Fidelity & Casualty Company of New York; and State Farm Fire and Casualty Company, Respondents.
    No. AJ-467.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1982.

      Richard B. Davis, Jr., Jasper, for petitioner.
    Mary K. Phillips of Bedell, Bedell, Ditt-mar & Zehmer, Jacksonville, and Frederick L. Koberlein of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for respondents.
   McCORD, Judge.

Petitioner administrator seeks a writ of common law certiorari from an order of the trial court which in part granted respondent’s motion for summary judgment as to damage claims included in petitioner’s second amended complaint in this wrongful death action. The suit was brought by petitioner under Section 768.20, Florida Statutes, to recover for the benefit of the petitioner’s decedent’s survivors and estate damages caused by injuries resulting in the death of petitioner’s decedent. We grant certiorari and quash that part of the order for which review is sought.

This action grew out of an automobile accident in which petitioner’s decedent, Ernest James Hill, was allegedly injured and killed as a result of the negligent operation of a motor vehicle by Harvey Daughtry with the consent of the owner of the vehicle, Lillian Rogers Allbritton. Daughtry and Allbritton were also killed in the accident and their personal representatives are defendants/respondents. Fidelity and Casualty Company of New York was also made a defendant as the alleged insurance carrier of decedent Allbritton and State Farm Fire and Casualty Company was made a party defendant as the alleged insurance carrier of Daughtry. From the appendix, petition, responses, and reply filed in this Court, it appears that the accident occurred on October 7,1978; that the original complaint was filed in January 1980, an amended complaint was filed in April 1980, a second amended complaint was served on September 14, 1981, and on October 8, 1981, the court entered an order allowing the filing of the second amended complaint. Then on January 13,1982, the trial court entered the order in which it granted summary judgment as above related as to the personal representative’s damage claim against the respondents on behalf of decedent Hill’s widow. It further appears that the damage claim was included for the first time in the second amended complaint, and the granting of summary judgment as to it was on the ground that it was barred by the statute of limitations [Section 95.11(4)(d), Florida Statutes] since it was not filed within two years following Hill’s death. The trial court found that such claim introduced new issues and would be prejudicial to the respondents.

Respondents contend that the claim for the surviving widow’s benefits was time-barred unless the amendment related back to the filing of the original complaint and that an amendment such as this which adds an entirely new claimant and new claim for damages to the complaint is not the sort of amendment which relates back to the date of the original pleading. It appears, however, that the authorities cited in support of this proposition relate to amendments to pleadings and not to the question of the running of the statute of limitations. Florida Rule of Civil Procedure 1.190, in relation to amended and supplemental pleadings, provides that “leave of court shall be given freely when justice so requires” and here, the trial court had previously entered an order allowing the second amended complaint which included the additional damage claim.

The pertinent statute of limitation, Section 95.11(4)(d), provides that an action for wrongful death shall be commenced within two years. In 1972, the legislature repealed the then existing wrongful death statute and enacted a new one which is encompassed in Section 768.16-768.27. The new act became effective on July 1, 1972. Under the old act (Section 768.01-768.04, Florida Statutes, 1971), the action was required to

... be brought by and in the name of the widow or husband, as the case may be, and where there is neither widow nor husband surviving the deceased, then the minor child or children may maintain an action; and where there is neither widow nor husband, nor minor child or children, then the action may be maintained by any person or persons dependent on such person killed for a support; and where there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person killed.

(§ 768.02, Florida Statutes, 1971.) Under the new act, Section 768.20 provides as follows:

The action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death.

Under the applicable statute of limitations [95.11(4)(d) ], only the personal representative may bring the action, and, here, such action was filed within the two-year period. The filing of the second amended complaint was not the filing of the action but was merely an amendment as to damages.

The trial court in its order and the parties to this review have alluded to the question of whether or not claims were filed or properly filed in the estates of Daughtry and Allbritton and the effect of the Section 733.702, Florida Statutes, limitations on presentation of claims in the estates. That question, however, is not before us on this review, but we note that Section 733.702(3) states as follows:

Nothing in this section affects or prevents:
(a) * * *
(b) To the limits of casualty insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which he is protected by the casualty insurance.

See also footnote 1 in Koschmeder v. Griffin, 386 So.2d 625 (Fla. 4th DCA 1980).

Certiorari is granted and paragraphs 3 and 4 of the trial court’s order of January 13, 1982, are quashed.

ERYIN and SHIVERS, JJ., concur.