author: OWEN, WILLIAM C., Jr., (retired) Associate Judge. WIGGINTON, Judge,

text:
    Robert Q. MARSTON, President, University of Florida, and Fletcher Baldwin, Chairman, Dean Search and Screen Committee, College of Law, University of Florida, Appellants, v. Terri WOOD, as Editor of the Verdict, Thomas R. Julin, and Campus Communications, Inc., Appellees.
    Nos. AF-475, AJ-393.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 31, 1983.
    Chesterfield Smith, Julian Clarkson, Michael Fogarty and Gregg Thomas of Holland & Knight, Tampa, for appellants.
    Joseph W. Little and Winston P. Nagan, Professors of Law, University of Florida College of Law, Gainesville, amici curiae, for appellants.
    Thomas R. Julin of Steel, Hector & Davis, Miami, Sandra Bieber of Sherman & Bie-ber, and Larry G. Turner of Larry G. Turner & Associates, Gainesville, for appellees.
    Jim Smith, Atty. Gen., State of Florida, Tallahassee, and Palm Beach Newspapers, Inc., et al., and Florence Beth Snyder, Gen. Counsel for Palm Beach Newspapers, Inc., West Palm Beach, amici curiae, for appel-lees.
   OWEN, WILLIAM C., Jr., (retired) Associate Judge.

The issue here is whether the Government in the Sunshine Law Section 286.011, Florida Statutes (1980), applies to the Dean Search and Screen Committee of the University of Florida College of Law. We hold that it does not, and reverse the very articulate and cogent order of the trial court to the contrary, together with a separate order awarding attorney’s fees, the appeals having been consolidated.

A university’s statutory authority to appoint, remove or re-assign academic deans is carried out by the president of the university. Section 240.202, Florida Statutes (1981). The constitution of the University of Florida, Article IV, Section 2(A)(3) requires that the president, in making his appointment of college deans, shall “give consideration to the opinion of the faculty of the college concerned by consultation with a special committee of at least three faculty members elected by the faculty of the college.” Search and screen committees are used at the University of Florida to select every college dean, and President Robert Q. Marston never has selected a dean who was not an applicant recommended by a search committee. Thus, when in January 1980 Joseph R. Julin, Dean of the College of Law of the University of Florida, announced that he would resign as Dean effective March 1980, the faculty of the College of Law was notified to elect a committee to carry out the search and screen activities directed toward the selection and appointment of a new dean. The faculty of the College of Law elected seven of its members to serve as the voting members of this committee with Professor Fletcher N. Baldwin as the chairman. The faculty also appointed two students of the College of Law to serve as non-voting members of the committee and President Mar-ston, at the request of the trustees of the Law Center Association, appointed Chesterfield Smith, Esq., a distinguished member of the Bar, to serve on the committee as a voting member.

The precise role and functioning of the decanal search and screen committee has an important bearing on our decision in this case. As its name would imply, the committee did, indeed, search and screen decanal applicants, fulfilling its instructions to “submit a small list of names to the president for his consideration ... representative of the very best talent in legal education in the United States of America.” Immediately after it was formed in January 1980, the committee commenced holding regular meetings, usually once a week, kept minutes of its meetings, and established formal rules of precedure together with the criteria which it was to use to screen applicants. The committee was instructed by a vice-president of the University to close to the press and the public those portions of its meetings in which there was discussion pertaining to the qualifications of individual prospective candidates as well as discussions of evaluation of the candidates, such discussions to be carried out in executive session. The committee mailed at least one hundred letters soliciting decanal applicants and by March 1980 approximately forty applications had been received. However, before the committee actually considered any of these in executive session, this suit had been filed and a temporary injunction entered requiring the committee to conduct its meetings in compliance with the Sunshine Law.

The applications which the committee received were divided into primary and non-primary classifications, those in the latter category receiving no further consideration. After debating and evaluating the qualifications of each primary applicant, the committee, on behalf of the faculty, invited six candidates to visit the campus. The committee made no recommendation to the faculty with respect to the candidates, but presented merely the names and credentials to the faculty. During June, July and August 1980, the faculty and others interviewed the six applicants who visited the campus. The faculty declined to recommend any of the six candidates to the president and requested that the search and screen committee resume its search. The committee conducted a second nationwide search following a procedure similar to that followed in the first search. Subsequently, the faculty, not the committee, voted to require sixty percent faculty approval before again inviting an applicant to visit the campus, and further voted to reduce its two-thirds vote of approval to a sixty percent vote before recommending an applicant to the president. In January 1981, the committee recommended to the faculty (not the president) that five applicants be invited for interviews on the campus. At this point the committee ceased its operations. Two of the candidates recommended for invitations withdrew their applications before visiting the campus. The faculty, by its own action and without committee initiative, invited an additional applicant (who had been rejected by the committee) to visit the campus. All candidates were interviewed by the faculty and others including vice-presidents and deans of several colleges. After the on-campus interviews, the faculty recommended to the president all four candidates as being excellent. Before making the selection of a new dean, the president received evaluations of the candidates from the faculty, and from at least three vice-presidents and five deans. The president also consulted with representatives of the legal profession and national educational leaders.

The Sunshine Act, Section 286.011(1), Florida Statutes (1980), in pertinent part provides:

All meetings of any board or commission of any state agency or authority ... at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule or formal action shall be considered binding except as taken or made at such meeting.

Appellants’ initial argument is that neither the University of Florida nor its president, is an agency for Sunshine Act purposes. While a compelling argument is made to the effect that if the Legislature had intended to include universities within the scope of the Sunshine Act, it could have included the terms “university,” “educational unit,” “educational institution,” “state university system” or “institution of higher education” and made its intention explicit as was done by the Legislature of the State of Washington, see Cathcart v. Andersen, 85 Wash.2d 102, 530 P.2d 313 (1975), we think it unnecessary to reach that question. Assuming the University of Florida and/or its president is an agency for Sunshine Act purposes, we are persuaded as to the soundness of appellants’ second point — neither the search and screen committee nor the College of Law faculty is a “board” or “commission” for Sunshine Act purposes.

We base our decision in this respect upon both the “staff exception” approved by the Supreme Court in Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977) and Bennett v. Warden, 333 So.2d 97 (Fla.2d DCA 1976), and the remoteness of the committee’s part in the decision-making process as recognized in Bennett v. Warden, supra, either of which standing alone would, under the facts of this case, be sufficient to sustain our position.

Granted, the committee did play a part in the decision-making process. While its role was partly clerical or administrative in soliciting applicants, and partly fact finding in nature in receiving the applications and compiling the data therein, it cannot be denied that its role also included participation in the selective process. However, its participation in that respect was merely a winnowing process by which it removed from the full faculty the burden of having to evaluate those applicants who clearly were either not qualified or less than fully qualified. The faculty members of the committee, by their academic experience and knowledge, possessed a degree of expertise which was uniquely suited to that winnowing process. Such is a proper function of staff, whose individual and collective expertise is commonly relied upon by public boards and commissions when the decision-making process involves considerations of complex or technical matters as to which the decision-maker has no special training or experience, but which are peculiarly within the expertise of the staff. Indeed, the rules and regulations of the University of Florida mandate that faculty members participate on university and college committees. The decanal search and screen committee, in utilizing the collective expertise of the several faculty members of the committee in evaluating the data contained in the applications for position of dean, seems to have performed a function quite comparable to the function performed by the staff of the Public Service Commission in sifting and evaluating data going into rate-making decisions, or the function performed by the staff of the Department of Health and Rehabilitative Services in screening and evaluating bids and submitting appropriate recommendations to that agency.

Totally apart from our analogizing the function of the faculty committee to that of staff, we conclude that the committee’s part in the decision-making process was much too remote from the ultimate decision maker to be considered as formulating policy or crystalizing any part of the decision-making process. While the committee did, indeed, have an indirect input into the decision-making process in the sense of eliminating from further consideration the bulk of the applicants, it must be recognized that in the final analysis the committee’s function was solely advisory in nature, and not to the ultimate decision-maker but to the faculty as a committee of the whole. Clearly illustrating the remoteness of the committee’s input into the decision-making process were the following facts: after the initial search and screen procedure, the committee, on behalf of the faculty, invited six candidates to visit the campus, none of whom after being interviewed by the faculty and others, received faculty recommendation; subsequently, the committee again recommended to the faculty (not the president) the names of certain applicants to be invited for interviews on the campus, following which the committee ceased its operations; it was the faculty, without committee intervention, that interviewed those candidates, invited an additional applicant whose name had been rejected by the committee, and who in due course recommended a list of candidates to the president; thereafter, the president conducted his own separate evaluation of the candidates recommended by the faculty before making his final selection. Thus, it is apparent that the committee’s input into the decision-making process not only did not go directly to the final decision-maker, the president, but also was additionally screened and evaluated by the entire faculty whose actions regarding the committee’s recommendations manifested their non-binding character. The role played by the faculty committee would seem to have less input into the final decision-making process than that of the employee’s council which Bennett v. Warden, supra, held to be too remote to be subject to Sunshine Act coverage.

Appellants have presented two other arguments as to why neither the College of Law faculty nor the search and screen committee of the faculty is a “board” or “commission” for Sunshine Act purposes. First, appellants argue that by definition a board or commission is a body authorized to exercise limited quasi-legislative or quasi-judicial powers, or both, independently of the head of the department, powers which neither the faculty nor the faculty committee possessed. Were this case the first to construe the Sunshine Act, such argument might fall on attentive ears, but Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974), as well as numerous other cases, teach that the statutory words “board or commission” have no such narrow or restrictive meaning. Secondly, appellants argue that application of the Sunshine Act to the faculty of the College of Law or its committee violates constitutional principles of academic freedom. We are not persuaded by that argument. See In re Dinnan, 661 F.2d 426 (5th Cir.1981).

Other states having acts similar to the Florida Sunshine Law have refused to apply open meeting legislation to law school and college faculty and student/faculty committees. The Georgia Supreme Court in McLarty v. Board of Regents of the University System of Georgia, 231 Ga. 22, 200 S.E.2d 117 (1973), the North Carolina Supreme Court in Student Bar Association Board of Governors v. Byrd, 293 N.C. 594, 239 S.E.2d 415 (1977), and the Tennessee Appellate court in Fain v. Faculty of the College of the University of Tennessee, 552 S.W.2d 752 (Tenn.App.1977), each determined that its state open meeting act did not apply to committees similar to the search and screen committee involved in this case. Those eases are persuasive authority for the decision we reach here.

In the case of Krause v. Reno, 366 So.2d 1244 (Fla. 3d DCA 1979), relied upon by the trial court, the Third District Court of Appeal construed the Sunshine Act to apply to a predominatly lay advisory board appointed to advise the city manager of the City of Miami regarding the appointment of a new chief of police. Both on the facts and in principle the instant case and the Krause case have much in common. In Krause, the city manager of the City of Miami, who alone possessed the power of selecting and appointing the city police chief, appointed a five member citizens advisory committee to screen and evaluate applicants for the position, and to make recommendations as to the four or five found best qualified, which recommendations, while not binding upon the city manager, were to be given full consideration. Here, the president of the University of Florida, having the sole authority to select and appoint a dean of the College of Law, called upon the faculty of the College of Law to appoint a search and screen committee to review and evaluate applicants and recommend those whom the committee found to be best qualified, which recommendations, while not binding on the president, were to be given full consideration. We have sought to distinguish this case from the Krause case by pointing out that (1) here the faculty was the equivalent of staff, while in the Krause case the committee consisted, with one exception, of lay persons, and (2) here the faculty committee’s input was necessarily more restricted and remote since the committee reported to the faculty as a whole, which latter body made the ultimate recommendations to the president, while in the Krause case the lay advisory committee met with and reported directly to the appointing authority, the city manager. Absent the validity of those distinguishing factors, our decision here would conflict with the Third District Court’s in decision in Krause v. Reno, supra.

The judgment of the trial court is reversed and this cause remanded for entry of a final judgment for the defendants, appellants herein. Our reversal of that judgment requires that we likewise reverse the separate order awarding attorney’s fees to the plaintiffs in the trial court, which we do without reaching or deciding the merits of the issues raised on the separate appeal from that order.

REVERSED and REMANDED.

THOMPSON, J., concurs.

WIGGINTON, J., dissents.

WIGGINTON, Judge,

dissenting.

The majority opinion finds today that the dean search committee at the University of Florida law school should not be governed by the Sunshine Law. I am troubled by this judicial creation of an exemption not established by the legislature, and I must respectfully dissent.

The Sunshine Law does not define the terms “board or commission” or “state agency or authority,” but it is clear that the University of Florida, which is created by statute, Section 240.2011(2), Florida Statutes, and all other state universities are state agencies. Lieberman v. Marshall, 236 So.2d 120, 125 (Fla.1970). President Marston is the chief executive officer of a public agency, and it is through his office that many of the statutory powers and duties of the university are carried out. He is responsible for the operation and administration of the university, including appointing, removing and reassigning vice presidents, academic deans, and other policy level positions reporting directly to the president. Section 240.227, Florida Statutes. The university president may individually be regarded as a state agency as defined by Chapter 119, Florida Statutes, and by the Government Reorganization Act, Chapter 20, Florida Statutes.

Significantly, the powers, duties and authority vested with the university are vested with the university president “or his designee.” Section 240.202, Florida Statutes.

In order to fulfill his function, President Marston designated a committee to aid in the ultimate selection and appointment of a new dean for the college of law. Following the dictates of the university constitution requiring that the president consult with a special committee of at least three faculty members elected by the faculty of the college, he called upon the faculty and a subcommittee thereof to carry out a decanal search, trim the list and forward to him its recommendations. Without any doubt, this search committee, comprised of law school faculty members, student leaders and a learned, accomplished and vitally interested member of The Florida Bar (who was appointed to the committee directly by the president), sought and received numerous applications from which it removed certain persons from further consideration by the law school faculty and President Marston.

This search committee found itself in the decision making process. It decided on the applicants whose names would be submitted to the faculty for consideration. Conversely — and this point cannot be overstated— the committee decided which applicants would not be considered for the dean’s job. The committee’s screening process eliminated the vast majority of candidates from being considered by President Marston.

The majority opinion’s characterization of this decision making as “merely a winnowing process” unfairly minimizes the role the committee played. I think it plain that if the university’s decision on who to hire as dean may be covered by the Sunshine Law, then the decision on who not to hire must be covered, too.

The most troubling effect of the majority opinion is that it may create the perception of a carte blanche exemption from the Sunshine Law for all university search and screen committees. In my view, the legislature, not the court, is the proper body to decide whether such an exemption should exist.

Following rules of statutory construction, we must conclude that the legislature has decided against such an exemption. Florida Statutes expressly exempt certain activities of search committees for chancellor of the university system, and for selection of university presidents. It would be tempting to reason that because these search committees are exempt then, a fortiori, other search committees would be likewise exempt. However, to avoid the appearance of establishing public policy rather than interpreting it, I believe the proper statutory construction is encompassed in the legal principle expressio unius exclusio alterius. As applied to this case, it means that when the legislature specifically named certain committees that are to be exempt from the Sunshine Law, and it did not create exemptions for similar committees, we must infer that the legislature intended that these unnamed committees not be exempt.

The inevitable conclusion is that Sunshine Law exemptions for search committee activities have not been overlooked by the legislature, and in fact have been provided, but only in certain specific and limited instances.

The faculty search and screen committee, through delegation of statutory power by President Marston in the decanal selection process and by performing important activities leading toward the final selection of a college dean, was raised from a staff function to the status of a board or commission subject to compliance with the Sunshine Act. See News-Press Publishing Co., Inc. d/b/a Fort Myers News-Press v. Carlson, et al., 410 So.2d 546 (Fla.2d DCA 1982).

The search committee members complain that application of the Sunshine Law discourages the robust exchange of ideas and that continuous exposure will cause that group to become “sunburned.” This state’s adoption of the Sunshine Law has opened the doors on backroom politics and is compelling government to be accountable. Should there be a person selected for search committee duty who is meek at heart and cannot or will not candidly evaluate and openly articulate that which is his responsibility, then his chair can be filled with one who is made of sterner stuff. And so it must be with those who seek selection for high public positions, whether that be in government or education. Such is the legislative design embodied in the Sunshine Law.

The legislature had the opportunity to exempt the search committee for the university president’s selection and appointment of academic deans (§ 240.227(5)), but refrained, thus maintaining openness in the selection process for viewing, evaluation and opinion by the public. This law can certainly withstand those citizens and members of the media who are curious and interested or who may be critical of our government and the decisions it makes.

Finally, it must be noted that the system indeed worked. The trial court’s order permanently enjoining the search committee from holding meetings without compliance with the requirements of the Sunshine Law, although causing some short-term anguish and gnashing of teeth, did in fact cause to be selected excellent and qualified candidates, one of whom was finally appointed by President Marston. In the sunshine, the search committee acted responsibly and effectively in carrying out its charges and duties. This the appellants cannot deny.

Accordingly, I would affirm the trial court’s order for permanent injunction.

Further, I would affirm the trial court’s order granting appellee’s attorney’s fees and costs. The parties agree that responsibility for payment of the award of attorney’s fees and costs, if due, shall be that of the agency, the University of Florida.

The facts surrounding the award of this fee appear to be novel in that the actions of appellee prevented the violation rather than seeking relief and pursuing penalties for violations after the fact.

Appellees sought and obtained temporary and permanent injunctive and declaratory relief requiring appellants to conduct all meetings of the decanal search and screen committee in compliance with the Sunshine Law. Although I would affirm the award of an attorney’s fee without further factual support of committee improprieties, the deposition of the college’s acting dean includes testimony that members of the search and screen committee interviewed and evaluated candidates for the deanship while attending the annual meeting of the Association of American Law Schools in Austin, Texas.

Section 286.011(4) provides that “the court shall assess a reasonable attorney’s fee” against the agency sued when a successful action “to enforce the provisions of this section” is brought. It is evident that the appellees prevailed in the action. The clear intention of the legislature was to provide for recovery of attorney’s fees to any individual who successfully enforces the provisions of the Sunshine Law.

The appellants urge the court to construe the statute as precluding recovery of attorney’s fees unless “a violation” of the act by the appellants is found. This argument is not persuasive as it would lead to the absurd result that litigants would refrain from bringing actions until after a violation occurred. Surely the public interest is best served when the impending violation is prevented by an injunctive action, as was taken in this case, rather than the violation occurring and irreparable harm befalling the public and those officials involved.

Appellees took swift and firm action to prevent the violation of the law and should not now be penalized. Rather, they should be made whole for the diligence shown. It should be noted that abuses of this enforcement provision of the Sunshine Act can be prevented not only by denying attorney’s fees to a non-prevailing party, but also by allowing an assessment of attorney’s fees against an individual who files such an action if the court finds it was filed in bad faith and was frivolous.

Accordingly, I would also affirm the award of fees and costs ordered by the trial court.

      . As the Supreme Court noted in Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977), at 342, n. 10, if the members of a collegial administrative body were obliged to avoid their staff during the evaluation and consideration stages of their deliberations, “the value of staff expertise would be lost and the intelligent use of employees would be crippled.”

      . While we do not overlook the presence on the committee of three non-faculty members (including two students as non-voting members) that factor does not materially detract from our concept of the committee as staff.

      . See, Occidental Chemical Co. v. Mayo, 351 So.2d 336 (Fla.1977).

      . See, opinion letter to Alvin J. Taylor, 81 Fla. Atty. Gen. 51 (July 8, 1981).

      . The Public Records law defines “agency” as “any state ... officer ... acting on behalf of any public agency.” Section 119.011(2), Florida Statutes.

      . Sec. 240.209(2).

      . Sec. 240.209(3)(a).

      . Section 286.011(4):
      Whenever an action has been filed against any board or commission or any state agency or authority ... to enforce the provisions of this section ... and the court determines that the defendant or defendants to such action acted in violation of this section, the court shall assess a reasonable attorney’s fee against such agency, and may assess a reasonable attorney’s fee against the individual filing such an action if the court finds it was filed in bad faith or was frivolous....


source: Caselaw Access Project

author: FERGUSON, Judge.

license: Public Domain

text:
    James T. ROBINSON and Monte W. Green, Appellants, v. Peter Frederick WRIGHT, as Underwriter at Lloyds of London, and all other Underwriters at Lloyds of London, Neill Lindsay Insurance Agency, Appellees.
    No. 81-2576.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Rehearing Denied Feb. 7, 1983.
    Hall & O’Brien, and Richard O’Brien, for appellants.
    Smathers & Thompson and Earl D. Wal-din, Jr., Game & Gaine, Miami, for appel-lees.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

A written contract will not be reformed on the basis of a unilateral mistake absent clear and convincing proof of fraud or inequitable conduct by the other side. Camichos v. Diana Stores Corp., 157 Fla. 349, 25 So.2d 864 (1946); Hopkins v. Mills, 116 Fla. 550, 156 So. 532 (1934). Where no evidence was presented in a non-jury trial to establish a prima facie case, it was proper to grant defendant’s motion, made at the conclusion of the plaintiff’s case, for involuntary dismissal pursuant to Florida Rules of Civil Procedure 1.420(b). Tillman v. Baskin, 260 So.2d 509 (Fla.1972).

Affirmed.


text:
    Leonard HINES, Appellant, v. The STATE of Florida, Appellee.
    No. 82-168.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Rehearing Denied Feb. 7, 1983.

      Bennett H. Brummer, Public Defender and Alan M. Medof, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Scott Silver, Asst. Atty. Gen., for appellee.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   FERGUSON, Judge.

This appeal is taken from a judgment of conviction for robbery after which appellant was sentenced under the Youthful Offender Act. The contentions here are: (1) the court should have conducted an inquiry after appellant made a prima facie showing that the state was using its peremptory challenges to systematically exclude black jurors, (2) the prosecutor’s comments in closing argument were highly improper and prejudicial, (3) the court’s admonition to the state attorney in the presence of the jury was prejudicial, (4) by granting a state motion in limine the court deprived appellant of the benefit of exculpatory testimony from a credible witness.

We dispose of each point briefly in reverse order.

First, at trial appellant opposed the motion in limine on the grounds that the statement was admissible as a res ges-tae exception to the hearsay rule. The court properly overruled the objection. Here it is argued for the first time that the statement should have been admitted to show that a co-defendant, who pled guilty and who was called as a defense witness, contrary to what the state sought to establish, did not recently fabricate his testimony that the appellant was not a participant in the offense. § 90.801(2)(b), Fla.Stat. (1981). The point is not preserved for review. When an objection is made on one ground at trial, no new or different ground may be considered on appeal. Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982) and cases collected therein.

Second, the question posed by the prosecutor to a police witness, “What was your reason for dismissing the one person at the scene”, may have been, as argued by appellant, designed to elicit an inadmissible identification of appellant based on an anonymous source. But if there was prejudice, which we doubt, it emanated not from the court’s admonition of the prosecutor to “be careful ... on the issue of hearsay and other matters ... ”, but from the question itself.

Third, we have on several occasions very recently been required to reverse convictions based on prosecutorial misconduct. This is another case that was tried during the same period in which overzealousness appears to have been the rule rather than an exception. The comment complained of herein also requires reversal:

Q. Mr. Baer [Prosecutor]: Ladies and gentlemen, I am going to close on this thought now: I am asking you, here to return a verdict in this ease that you can feel good about it and be proud of. I am asking you to tell the community that you are not going to tolerate the violence that took place in Sewer Beach.
[Defense Counsel]: Objection. That is totally improper and I move to strike it.
THE COURT: It shall be sustained.
[Prosecutor]: There isn’t any sympathy—
[Defense Counsel]: Your Honor, my I approach the bench?
THE COURT: Yes, sir.
[Defense Counsel]: The defense moves for a mistrial.. ..
THE COURT: Your motion is denied.

The remark, an impassioned call to the jury to not only determine the guilt or innocence of the accused based on the evidence presented but to send a message to the criminal community regarding violence in general, is so egregious that reversal is compelled. United States v. Modica, 663 F.2d 1173 (2d Cir.1981); Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982), Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982); Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982); McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982); see generally ABA Standards for Criminal Justice 3-5.8 (1980). We do not find the evidence so overwhelming so as to justify overlooking the error.

Finally, having already determined that the conviction must be reversed and the defendant accorded a new trial, we need not address the remaining issue: Whether the state’s use of its peremptory challenge is beyond court scrutiny, and if not, whether on this record appellant made a prima facie showing that the state used its peremptory challenges to impermissibly discriminate against a racially cognizable group.

Reversed and remanded for a new trial.

      . Appellant alleges that the following facts make for a prima facie showing of discrimination: (1) the defendant is black and the victims white, (2) the state used four of its six peremptory challenges to exclude all blacks seated as prospective jurors, (3) the sole remaining black in the venire was seated as a prospective alternate, but was also excluded peremptorily without examination.


author: SCHWARTZ, Judge.

text:
    Michael T. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-436.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.

      Bennett H. Brummer, Public Defender and Mark King Leban, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and FERGUSON, JJ.
   SCHWARTZ, Judge.

Williams was convicted of the armed robbery of a supermarket. In treating his sole point on appeal, we once more find, as we have recently with wearying repetitiveness, see Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982), and cases cited; Hines v. State, 425 So.2d 589 (Fla. 3d DCA 1982), that the prosecutor’s final argument was infected with error. Statements like the one made below — which was exacerbated by being substantially repeated with the apparent approval of the trial court — -that if Williams were found not guilty, “he can walk out of this courtroom [and] go to work again just like he did that night,” have been condemned in a long and uninterrupted series of Florida cases. Gomez v. State, 415 So.2d 822 (Fla. 3d DCA 1982); McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982); Sims v. State, 371 So.2d 211 (Fla. 3d DCA 1979); Porter v. State, 347 So.2d 449 (Fla. 3d DCA 1977); Russell v. State, 233 So.2d 154 (Fla. 4th DCA 1970); Chavez v. State, 215 So.2d 750 (Fla. 2d DCA 1968); Davis v. State, 214 So.2d 41 (Fla. 3d DCA 1968).

While we therefore thoroughly disapprove of the argument, we cannot hold that it justifies reversal. The evidence against Williams, which included a photograph taken of him while the robbery was being committed, was so overwhelming that the statements must be regarded as no more than harmless improprieties. E.g., Zamot v. State, 375 So.2d 881 (Fla. 3d DCA 1979).

Affirmed.

      . The pertinent portion of the transcript is as follows:
      [MS. WEINTRAUB]: Defense counsel told you and I agree with him, if you find Michael Williams, the Defendant, not guilty, he can walk out of this courtroom. He can walk out, go to work again just like he did that night, nicely dressed.
      MR. SCHWARTZ: Objection, your Honor. I have a motion.
      May we approach the bench.
      THE COURT: Let’s have a side bar.
      (Thereupon, counsel for the respective parties and the court reporter approached the bench and the following proceedings were had outside the hearing of the jury:)
      MR. SCHWARTZ: Your Honor, the Defendant objects to the statement by counsel as well as the raising of the picture by her, and also move for a mistrial upon the ground that by her gesture and by her statement, it’s letting the jurors now know letting him out of this courtroom, he will go out and do more crimes.
      That is inflammatory. That is prejudicial. It’s not relative—
      THE COURT: Did I hear her say he is going to commit more crimes?
      MR. SCHWARTZ: Held up that picture, the one identified, the one—
      THE COURT: For holding up the picture?
      MR. SCHWARTZ: For saying that he is going to work. There is no doubt in my mind as to what that meant.
      THE COURT: Motion for a mistrial is denied.
      (Thereupon, the following proceedings were had within the hearing of the jury:)
      THE COURT: Jurors will disregard the last statement of the prosecution.
      Proceed.
      MS. WEINTRAUB: Do I have the Court’s permission to complete my last sentence?
      THE COURT: Agree.
      MS. WEINTRAUB: If you find the Defendant not guilty, I agree with defense counsel, he walks out of the courtroom, gets dressed just as he did that night and goes to work.


author: PER CURIAM.

text:
    CITY OF HOMESTEAD, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, and the Public Health Trust of Dade County, Florida, an agency and instrumentality of Dade County, Florida, Appellees.
    No. 82-667.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Rehearing Denied Feb. 7, 1983.
    Paul & Thomson and Jon W. Zedar and Jerold I. Budney, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Robert L. Blake, Asst. County Atty., for appellees.
    Steel, Hector & Davis, Miami, for American Hosp. of Miami, Inc., as amicus curiae.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

The City of Homestead filed suit to enforce Dade County’s alleged duty to assume responsibility for the medical care of indigent patients treated in the municipal hospital. In a multi-count complaint, the City sought declaratory, monetary, and injunc-tive relief predicated upon: (a) the deed by which the County acquired Jackson Memorial Hospital in 1948; (b) a 1967 final decree allegedly construing the County’s responsibilities; (c) state statutes; and (d) negligence. The trial court dismissed the complaint without leave to amend. We reverse.

As to the claims for declaratory relief, we observe that the test is not whether the plaintiff is entitled to a declaration in his favor, but rather, it is whether he is entitled to a declaration of rights. Rosenhouse v. 1950 Spring Term Grand Jury, 56 So.2d 445 (Fla.1952); Mills v. Ball, 344 So.2d 635 (Fla. 1st DCA 1977). In essence, the County argues that the City does not have a sufficient interest to seek a declaration of rights. We disagree. Section 86.021, Florida Statutes (1981) states, in pertinent part:

Any person claiming to be interested or who may be in doubt about his rights under a deed, ... or whose rights, status, or other equitable or legal relations are affected by a statute, ... may have determined any question of construction or validity arising under such statute, . . . deed, ... and obtain a declaration of rights, status or other equitable or legal relations thereunder.

We find that the City has standing to seek declaratory relief. It has alleged a sufficient interest in and doubts about its rights under the deed, the final decree, and the statutory authority to withstand a motion to dismiss those counts of the complaint seeking declaratory relief. See May v. Holley, 59 So.2d 636 (Fla.1952).

Failure to state a cause of action is the second basis upon which the County urges that dismissal was properly granted. Because it is not apparent that the pleading cannot be amended to state a cause of action, we find that the plaintiff must be allowed at least one opportunity to amend.

Based on' the foregoing, we reverse and remand to the trial court for proceedings not inconsistent with this opinion.

Reversed and remanded.

      . We express no opinion as to whether the plaintiff will ultimately be able to state a cause of action.


author: HURLEY, Judge.

text:
    DANIA JAI-ALAI PALACE, INC., Carrousel Concessions, Inc., and Saturday Corporation, Appellants, v. Gladys SYKES, Appellee.
    No. 80-535.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Feb. 9, 1983.

      Wm. R. Dawes, Guy B. Bailey, Jr., and Sara Soto of Bailey & Dawes, Miami, for appellants.
    Gilbert A. Haddad of Haddad & Josephs, Miami, for appellee.
   HURLEY, Judge.

This appeal follows a plaintiffs verdict in a personal injury action. The principal question presented is whether a parent corporation may be held liable for torts committed by an employee of a wholly-owned subsidiary corporation. We answer in the affirmative since the record in this case contains substantial competent evidence to support findings that the subsidiary was a mere instrumentality of the parent and that the employee was acting within the course and scope of his employment. Therefore, for this and other reasons enumerated herein, we affirm in part and reverse in part.

On December 15, 1977, Gladys Sykes attempted to patronize the Dania Jai-Alai fronton. She arrived in her car and was directed into the valet parking area by a security guard employed by Dania Jai-Alai Palace, Inc. She purchased a parking ticket and turned the car over to the ticket seller who was employed by another corporation, Carrousel Concessions, Inc. Then she began to walk forward in front of her car toward the main gate of the fronton.

Ms. Sykes’ car was the last in a short line of cars which were temporarily stopped near the fronton entrance waiting to be moved by parking attendants. There was about a four foot space between the Sykes’ car and the one ahead. Since parking attendants were about to move the other cars in the line, the ticket seller, who was in overall charge of keeping things moving, got into Ms. Sykes’ car and prepared to drive it. He looked at the gear shift indicator and moved it from “park” to “drive.” As he did so, he took his foot from the brake pedal and placed it on the accelerator pedal. The car began to move forward and, at this point, he looked up and saw Ms. Sykes in front of the car, near its center. He attempted to brake, but his foot slipped and hit the accelerator. Ms. Sykes was propelled forward and crushed into the stationary car ahead; she was seriously injured.

Initially, Ms. Sykes sued Dania Jai-Alai Palace, Inc. (Dania). Later, when her attorneys discovered that Carrousel Concessions, Inc. (Carrousel) was running the valet parking, she amended her complaint to include Carrousel and to include Saturday Corporation (Saturday), the parent corporation of Dania and Carrousel.

Ms. Sykes sought to hold Carrousel, the driver’s employer, liable under the theory of respondeat superior and for independent acts of negligence. She sought to hold Da-nia liable under three alternate rationales: 1) a premises liability theory; 2) an apparent agency theory, i.e., that the two corporations operated the fronton in such a close knit fashion that the public was led to believe it was a single business entity and, thus, each was the agent of the other; and 3) an “alter ego” or “mere instrumentality” theory, i.e., that the operations of Dania and Carrousel were so intertwined that equitable principles justify piercing their corporate veils. Ms. Sykes also sought to hold Saturday, the parent corporation, liable for the tortious acts of Carrousel’s employee on the theory that Carrousel and Dania were the mere instrumentalities of Saturday.

At the conclusion of the evidence, the trial court ruled as follows: (1) It entered a directed verdict on the driver’s negligence and, consequently, entered a directed verdict against Carrousel, finding that it was liable for its employee’s negligence. (2) It directed a verdict in favor of the plaintiff, Ms. Sykes, finding that she was without comparative fault. (3) Based on the directed verdict entered against Carrousel, the court granted a directed verdict against Dania, finding that the fronton had been operated in such a manner that the public had been led to believe that it was a single entity. (4) At the defendants’ behest, and over the plaintiff’s objections, the court ruled that the plaintiff’s theory of premises liability against Dania would not be submitted to the jury since Dania had been found liable under another theory. (5) Lastly, the trial court ruled that the issue of Saturday’s ultimate responsibility and the amount of the plaintiff’s damages would be submitted to the jury.

The jury returned a verdict for the plaintiff and against all three corporate defendants in the amount of $775,000.

I

Carrousel’s Employee’s Negligence

Florida courts employ a rebuttable presumption in rear-end collision cases: the driver of a vehicle which strikes another vehicle in the rear is presumed to be negligent. Brethauer v. Brassell, 347 So.2d 656, 657 (Fla. 4th DCA 1977); Lincoln v. Miggins, 249 So.2d 88, 88-89 (Fla. 3d DCA 1971). If the driver of the second vehicle does not offer a satisfactory explanation as to why he collided with the car in front, then he is subject to having a verdict directed against him on the issue of liability. Id.

Here, the defendants failed to rebut the presumption of negligence. The driver testified that he got into Ms. Sykes’ car after she had paid him. The car was at the end of a line of cars which were about to be moved by parking attendants and there was about four feet between the Sykes’ car and the one ahead. The driver knew that customers frequently walked in front of their cars to get to the fronton. Indeed, customers had to cross the line of cars, either by walking in front of or behind their cars, to enter the fronton.

When the driver entered Ms. Sykes’ car the motor was running with the automatic transmission in the “park” position. The driver shifted from “park” to “drive,” and, without looking forward, moved his foot from the brake to the accelerator. Only then did he look forward and discover Ms. Sykes in front of the car. Although he tried to apply the brakes, he hit the accelerator and caused Ms. Sykes to be propelled forward and crushed between the cars.

The driver’s explanation does not rebut the presumption of negligence. He admits that he set the car in motion without first checking the path ahead even though he had reason to believe that the path might be obstructed by pedestrian traffic and other cars. Thus, the driver negligently created a risk. That he subsequently made an unsuccessful effort to avoid the risk does not excuse his initial negligence. Accordingly, the trial court was correct in directing a verdict on the issue of the driver’s negligence and his employer’s liability.

II

Negligence of Ms. Sykes

Next, we consider the propriety of the trial court’s action of granting a directed verdict on the issue of Ms. Sykes’ negligence. The applicable standard requires that we view the evidence and all reasonable inferences therefrom in the light most favorable to the appellants, the non-moving parties. See Burmeister v. American Motorists Insurance Co., 403 So.2d 541, 542 (Fla. 4th DCA 1981). Applying this standard to the case at bar, we find that the evidence will support a reasonable inference that Ms. Sykes walked between two cars which were about to be moved without looking to see if the driver of her car was aware of her presence and was willing to allow her to pass. If this were the jury’s finding, it would constitute some negligence on the part of Ms. Sykes. Thus, we hold that the evidence was sufficient to withstand a motion for directed verdict and that the court erred in not allowing the jury to pass upon this issue.

Ill

Liability of Dania

After both sides rested, the trial court ruled that Dania was liable for the negligence of Carrousel’s parking attendant. The court reasoned that this “is a special factual situation ... where someone is injured in the confines of the whole operation.” Thus, the court concluded that Da-nia was liable because of the close knit nature of the operation in which both corporations combined forces to engage in a single business and held themselves out to the public as a single enterprise. We agree.

The uncontroverted evidence shows that Dania owns the entire premises. The operational aspect of business, however, has been divided between Dania and its sister corporation, Carrousel, which Dania financed. Dania handles the betting, the players, and the admission. Dania also handles maintenance and the hiring of security personnel. Carrousel, on the other hand, handles food, beverages, program sales, and parking. Notwithstanding this division of labor, the two corporations present a public image of a single enterprise. They advertise themselves simply as Dania Jai-Alai and the public has no reason to suspect that there is more than one entity involved.

When two corporations engage in a common enterprise that involves an inherent risk to members of the public, and hold themselves out to the public as a single enterprise, then both corporations will incur tort liability for the torts of the enterprise. Stuyvesant Corp. v. Stahl, 62 So.2d 18 (Fla.1953); see Orlando Executive Park, Inc. v. P.D.R., 402 So.2d 442 (Fla. 5th DCA 1981). We find that the trial court correctly applied this principle in the case at bar.

IV

Liability of Saturday

Next, we consider the question of Saturday’s liability. May a parent corporation be held liable for torts committed by an employee of a wholly-owned subsidiary? In this instance, the answer is “yes.” Here, the jury applied the long-established principle of Florida law that, when one corporation controls and dominates another corporation to the extent that the second corporation becomes the “mere instrumentality” of the first, the dominant corporation is liable for the torts of the subservient corporation. Levenstein v. Sapiro, 279 So.2d 858 (Fla.1973); Aztec Motel, Inc. v. State ex rel. Faircloth, 251 So.2d 849 (Fla.1971); Barnes v. Liebig, 146 Fla. 219, 1 So.2d 247 (1941). In light of the jury’s affirmative finding, our responsibility is not to re-weigh the evidence, Levenstein v. Sapiro, supra, but only to determine whether the verdict is supported by competent substantial evidence. See Bermil Corp. v. Sawyer, 353 So.2d 579 (Fla. 3d DCA 1977).

At the outset, we reject appellants’ contention that, in order to utilize the instrumentality doctrine, the plaintiff had to establish fraud or other wrongdoing on the part of Saturday. Although there are conflicting lines of cases on this point, we took a definitive position in Vantage View, Inc. v. Bali East Development Corp., 421 So.2d 728 (Fla. 4th DCA 1982), and said that we intend to “follow the decision of the supreme court in Barnes, Mayer, Aztec and Levenstein which have held it sufficient to allege domination and control without the necessity of alleging improper purpose or unjust loss.”

Whether a subsidiary is a mere instrumentality is normally a question of fact for the jury. Barnes v. Liebig, supra. “The central factual issue is control, i.e., whether the parent corporation dominates the activities of the subsidiary.” Japan Petroleum Co. (Nigeria) Ltd. v. Ashland Oil, Inc., 456 F.Supp. 831, 841 (D.Del.1978). The degree of control necessary to sustain liability under the instrumentality rule has been characterized as “total domination of the subservient corporation, to the extent that the subservient corporation manifests no separate corporate interests of its own and functions solely to achieve the purposes of the dominant corporation.” Krivo Industrial Supply Co. v. National Distillers & Chemical Corp., 483 F.2d 1098, 1106 (5th Cir.1973), modified per curiam, 490 F.2d 916 (5th Cir.1974). On the other hand, courts generally agree that the application of the instrumentality rule demands a case-by-case analysis. Because the instrumentality rule is “essentially equitable in character, the conditions under which a corporate entity may be disregarded vary, depending upon the circumstances in each case. [Citations omitted.] It is therefore inappropriate to attempt to apply any verbalization of the test in a mechanical manner.” FMC Finance Corp. v. Murphree, 632 F.2d 413, 422 (5th Cir.1980).

A number of courts have suggested that the following factors are relevant in determining the applicability of the instrumentality rule. (1) The parent corporation owns all or majority of the capital stock of the subsidiary. (2) The parent and subsidiary corporations have common directors or officers. (3) The parent corporation finances the subsidiary. (4) The parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation. (5) The subsidiary has grossly inadequate capital. (6) The parent corporation pays the salaries or expenses or losses of the subsidiary. (7) The subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation. (8) In the papers of the parent corporation, and in the statements of its officers, “the subsidiary” is referred to as such or as a department or division. (9) The directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take direction from the parent corporation. (10) The formal legal requirements of the subsidiary as a separate and independent corporation are not observed.

Turning to the evidence in the case at bar and viewing it in the light most favorable to the plaintiff/appellee, we find that Carrousel was wholly owned by Saturday and that they shared common officers. Furthermore, although there was testimony that the day-to-day operation of Carrousel was placed in the hands of an independent general manager, there was other testimony that the general manager regularly reported to one of the common officers and thereafter implemented his directions. Testimony also indicated that the common officer was present on the premises of the fronton and had the ability to hire and fire employees of Carrousel. The proof further demonstrated that Saturday created Carrousel and initially funded it through Da-nia, its other subsidiary.

A highly relevant factor in evaluating the application of the instrumentality rule is whether there is proof that the subservient corporation was being used to further the purposes of the dominant corporation to the extent that the subservient corporation in reality had no separate, independent existence of its own. See, e.g., Krivo Industrial Supply Co. v. National Distillers & Chemical Corp., supra. In the case at bar, there was substantial proof that Carrousel existed only to serve the needs of Saturday. For example, Carrousel only operated at two frontons, both of which were owned either directly or indirectly by Saturday. Carrousel maintained its offices within the fronton and gave all outward appearances of being part of an integrated operation. In this respect, it is noteworthy that Saturday and its two subsidiary corporations filed a consolidated federal income tax return and were jointly insured. The evidence suggests that Saturday maintained a pervasive control over all aspects of the fronton’s operations and, given such evidence, we cannot say that the jury’s finding that Carrousel was the mere instrumentality of Saturday is clearly erroneous. Therefore, we affirm the verdict finding Saturday liable for the acts of Carrousel.

V

Summary

To summarize, we hold that the trial court did not err in directing a verdict on the negligence of the driver. It did err, however, in directing a verdict on the issue of Ms. Sykes’ negligence and the comparative fault of the parties. As to the liability of the corporations, we hold that appellants have failed to demonstrate reversible error. Finally, we find that appellants’ remaining points on appeal are without merit and, thus, we affirm the verdict as to the amount of damages.

Accordingly, we affirm in part, reverse in part, and remand for further proceedings on the issue of Ms. Sykes’ alleged negligence.

DOWNEY, J., and UPCHURCH, JOHN J., IV, Associate Judge, concur.

      . Barnes v. Liebig, 146 Fla. 219, 1 So.2d 247 (1941).

      . Mayer v. Eastwood, Smith & Co., 122 Fla. 34, 164 So. 684 (1935).

      . Aztec Motel, Inc. v. State ex rel. Faircloth, 251 So.2d 849 (Fla.1971).

      . Levenstein v. Sapiro, 279 So.2d 858 (Fla.1973).

      . Fish v. East, 114 F.2d 177 (10th Cir.1940); Baker v. Raymond International, Inc., 656 F.2d 173 (5th Cir.1981), cert. denied, - U.S. -, 102 S.Ct. 2256, 72 L.Ed.2d 861 (1982). The reliance on these factors by the factfinder in a federal bench trial was approved in Bay Sound Transportation Co. v. United States, 474 F.2d 1397 (5th Cir.1973) (per curiam), aff’g 350 F.Supp. 420 (S.D.Tex.1972), cert. denied, 415 U.S. 916, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974). These factors were initially set forth in Taylor v. Standard Gas & Electric Co., 96 F.2d 693, 704-05 (10th Cir.1938) (quoting Powell on Parent and Subsidiary Corporations), rev’d on other grounds, 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939).


author: ANSTEAD, Judge.

text:
    STATE of Florida, Appellant, v. Charles TALBOTT and Steve Jesmer, Appellees.
    No. 81-2271.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Feb. 9, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Trela J. White and Stewart J. Bellus, Asst. Attys. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellees.
   ANSTEAD, Judge.

This is an appeal by the state from an order suppressing evidence obtained as á result of an alleged illegal arrest. We reverse.

The facts are not in dispute. Joseph Jes-mer and Ernest Holland, after being arrested, told police that they had heard Jesmer’s brother Steve planning a bank robbery. The robbery was to occur within the week in Palm Beach County at a bank on Military Trail between Hypoluxo Road and Purdy Lane. Steve and a friend, Charles Talbott, were to use a pistol, wear ski masks, escape in a black Mustang and leave the state immediately thereafter. The Palm Beach County Sheriff’s Department immediately sent this information to banks in the target area. One week later, no bank having been robbed, the police again questioned Joseph Jesmer, who had subsequently been released. He told them that the black Mustang was under repair and that he did not know if the robbery was still under consideration.

Approximately three weeks after the original tip, a teller at a bank in the target area reported a robbery similar in detail to the one anticipated by the police. Later that day, detectives stopped the black Mustang and took Jesmer and Talbott into custody. Jesmer and Talbott then confessed to unrelated crimes while denying their involvement in the bank robbery. In fact, it turned out that the bank had not been robbed. Rather, the teller had embezzled the funds and concocted the robbery story based on the information concerning the anticipated robbery by Jesmer and Talbott circulated earlier by the Sheriff’s Department. The trial court suppressed the confessions on the grounds that the police did not have probable cause to arrest Jesmer and Talbott. The trial court was particularly concerned with the police officer’s reliance on the information provided by Joseph Jesmer and Ernest Holland.

A police officer may arrest a suspect without a warrant outside the suspect’s home if the officer has probable cause to believe the suspect has committed a felony. An informant’s tip may provide probable cause if it satisfies a two part test. The tip must reveal the basis for the informant’s knowledge and it must be sufficiently truthful. The veracity may be proven by the informant’s credibility or the intrinsic reliability of the information he provides. Barfield v. State, 396 So.2d 793 (Fla. 1st DCA 1981); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The basis-of-knowledge part of the test is satisfied if the information is based on personal observation or if it is received from reliable and credible third parties. Barfield, at 795. In this case, the information provided by Joseph Jesmer and Ernest Holland was based upon an overheard conversation. Such a basis is equivalent to personal observation. Thus, the state satisfied this part of the test.

To satisfy the veracity part of the test, the state must show the informant’s credibility or the information’s reliability. In this case, for instance, it appears that the state failed to establish the credibility of the informants to the extent necessary to rely on that tip alone for making an arrest.

Importantly, however, information may also be proven reliable if, when considered along with a police officer’s corroboration of the information by independent investigations, it may be judged to be “as trustworthy as a tip which would pass Aguilar’s test without independent corroboration.” Spinelli, at 415, 89 S.Ct. at 588. In other words, if there is reliable independent evidence available to the police that supports the tip, that evidence itself may be sufficient to establish the reliability of the tip. For such corroboration by independent investigation to be sufficient, it does not have to supply probable cause itself, but it must at least be “unusual in inviting explanation.” LaFave, Probable Cause From Informants: The Effects of Murphy’s Law on Fourth Amendment Adjudication, 1977 U. of Ill.L.Forum 1,55 quoted in Barfield, at 797.

In our view, the reliability of the information provided by the informants was sufficiently established here when the police received an independent report of a bank robbery, the description of which fit almost exactly the earlier report of the informants. Indeed, as noted, the bank teller involved tailored her report to fit the information provided in the earlier warning circulated by the police. When the robbery actually took place as reported; albeit at a later time, we believe this event constituted independent corroboration of the earlier tip sufficient to furnish the officers with probable cause to arrest the appellees, who at this point were no longer just persons named as potential robbers but now were persons who fit the descriptions of actual robbers given by the bank teller. We realize that the police could have chosen to have further investigated the robbery and the appellees’ involvement therein prior to making any arrests. Indeed, it was the very next day after the robbery that the bank teller confessed. Clearly, after that confession no cause would have existed to arrest the appellees. However, at the time the crime was reported the police had no reason to believe the report was not truthful and, given the similarity in detail of the robbery anticipated to the robbery that was reported, coupled with the earlier report that the robbers were going to immediately flee the state, we do not believe the actions of the police were unreasonable.

Accordingly, for the reasons set out above, we reverse the decision of the trial court and remand for further proceedings consistent herewith.

BERANEK and HURLEY, JJ., concur.

      . The credibility of an informant may be based on past performance. Informers who have provided information in the past that has proven to be correct are considered credible. Here Jesmer was a first-time informer. Thus, the state has not proved his credibility in this manner. Information may also be deemed reliable if it is against the informant’s penal interest or if the information concerns someone known to the police as having a reputation for illegal activity. Barfield, at 796. Neither of these criteria is directly involved in this case. Information provided by citizen-informers is also deemed reliable. A citizen-informer is one who is “motivated not by pecuniary gain, but by the desire to further justice.” Barfield, at 796. Here, although Joseph was not being paid, it can perhaps be inferred that since he had just been arrested he may have had a strong incentive to inform in order to ease his own legal troubles. Hence, Joseph was hardly a “citizen informer.” On the other hand it is obvious that the informants here were much more than “anonymous tipsters” whose reliability is inherently suspect. Both Joseph and Holland were identifiable and one was the brother of the alleged robber-to-be. These factors support their reliability. If we were limited to a consideration of the informants’ credibility we would no doubt uphold the suppression order.

      . The state also claims that the reliability of the tip may be established on the sufficiency-of-detail theory first stated in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In Draper, an informant who had provided accurate information in the past provided a tip without revealing his basis for that knowledge. The Supreme Court held that the basis-of-knowledge prong of the test could be satisfied if the tip were sufficiently detailed. The second prong, the veracity test, was satisfied by the informant’s past history of accurateness. The court did not use the sufficiency-of-detail theory to satisfy the veracity prong. The use of Draper, in Florida courts, has been limited to satisfying the basis-of-knowledge test but not the veracity test. See State v. Willits, 413 So.2d 791 (Fla. 1st DCA 1982); State v. Doherty, 240 So.2d 332 (Fla. 4th DCA 1970).


author: LETTS, Chief Judge.

text:
    Bernard TACY, Appellant, v. Ann DAVIS, as Personal Representative of the Estate of Sheldon R. Davis, Deceased, Appellee.
    No. 82-337.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Feb. 10, 1983.
    Marvin S. Littky of L.M. Taylor Lawyers, North Palm Beach, for appellant.
    Larry M. Mesches of Altman, Colin & Friedland, Lake Worth, for appellee.
   LETTS, Chief Judge.

This cause is dismissed. A motion for a rehearing does not toll the time for taking an appeal from an order entered pursuant to Florida Rule of Civil Procedure 1.540(b). Potucek v. Smeja, 419 So.2d 1192 (Fla., 1982).

DOWNEY and GLICKSTEIN, JJ., concur.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Walter LEWIS and Rebecca N. Lewis, his wife, Appellees.
    No. 82-553.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Rehearing Denied Feb. 10, 1983.

      Frank W. Weathers of Weathers & Seaman, Lantana, for appellant.
    Mikel D. Greene of Farish, Farish & Ro-mani, West Palm Beach, for appellees.
   ANSTEAD, Judge.

This is an appeal by State Farm of an order invalidating a provision of State Farm’s policy with Lewis excluding uninsured motorist coverage when the insured is driving a car not insured under the policy.

Appellee Lewis insured his Buick with State Farm. This insurance included uninsured motorist coverage of $25,000. While driving his uninsured motorcycle Lewis was hit by a motorist with $10,000 liability coverage. State Farm claimed that while ordinarily Lewis would be entitled to coverage for the difference between the other motorist’s liability coverage and Lewis’ uninsured motorist coverage, no coverage was available for this accident because of an explicit policy provision stating: “There is no (uninsured motorist) coverage ... for bodily injury to an insured while occupying ... a motor vehicle owned by (the insured) ... if (the vehicle) is not insured for this coverage under this policy.” The trial court disagreed and entered a judgment against State Farm for $15,000. State Farm, while acknowledging earlier case law invalidating a similar provision, asserts on appeal that section 627.4132, Florida Statutes (1976) has superseded the case law by specifically authorizing such limitations on uninsured motorist coverage.

In 1971, in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), the Florida Supreme Court held that an exclusion nearly identical to that of the instant case was against the public policy expressed in section 627.0851, Florida Statutes (1971) and thus, invalid.

Whenever bodily injury is inflicted upon named insured or insured members of his family by the negligence of an uninsured motorist, under whatever conditions, locations, or circumstances, any of such insureds happen to be in at the time, they are covered by insured motorist liability insurance issued pursuant to requirements of Section 627.0851. They may be pedestrians at the time of such injury, they may be riding in motor vehicles of others or in public conveyances and they may occupy motor vehicles (including Honda motorcycles) owned by but which are not “insured automobiles” of named insured.
Uninsured motorist coverage or family protection is intended by the statute to protect the described insureds thereunder to the extent of the limits described in Section 324.021(7) “who are legally entitled to recover damages, namely those from owners or operators of uninsured motor vehicles because of bodily injury” and is not to be “whittled away” by exclusions and exceptions.

Id., at 233.

In 1976, the Florida Legislature enacted section 627.4132.

627.4132 Stacking of coverages prohibited. — If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds. (Emphasis supplied.)

State Farm argues that the first sentence of this statute repeals the public policy announced in Mullís. To support this contention, appellant cites a line of cases, all decided under section 627.4132, Florida Statutes (1976) and under policy exclusions similar to that in the instant case: Indomenico v. State Farm, 388 So.2d 29 (Fla. 3d DCA 1980); State Farm v. Wimpee, 376 So.2d 20 (Fla. 2d DCA 1979); State Farm v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979); Allstate Insurance Company v. Alvarez, 414 So.2d 224 (Fla. 3d DCA 1982); and McLellan v. State Farm Mutual Automobile Insurance Co., 366 So.2d 811 (Fla. 4th DCA 1979). We agree that most of these eases appear to support the proposition that section 627.-4132 constitutes a legislative overruling of the holding in Mullís.

In McLellan the court construed the last sentence of section 627.4132, Florida Statutes (1976), an issue irrelevant here. However, in dictum Judge Downey stated, “The obvious purpose of the statute is to ... restrict an insured or named insured to the coverage contained in the policy covering the vehicle he was operating.” Id., at 812. The holding in McLellan was subsequently overruled by the Supreme Court in South Carolina Insurance Co. v. Kokay, 398 So.2d 1355 (Fla.1981).

In opposition to the eases relied on by appellant appellees cite Travelers Insurance Co. v. Spencer, 397 So.2d 358 (Fla. 1st DCA 1981); Hines v. Wausau Underwriters Insurance Co., 408 So.2d 772 (Fla. 2d DCA 1982); and Harbach v. New Hampshire Insurance Group, 413 So.2d 1216 (Fla. 5th DCA 1982). Each of these cases was decided while section 627.4132 was in effect and under policy exclusions similar to those in the instant case.

In Spencer, the court held that uninsured motorist coverage on a father’s ear covered him while driving his son’s uninsured car, reasoning that the Mullís public policy argument controlled. The court did not mention section 627.4132 explicitly and perhaps did not consider whether that section manifested a changed expression of public policy-

In Hines, the insured was driving a ear owned and insured by his wife. The wife’s insurer paid uninsured motorist benefits, and the insured then tried to collect from his own uninsured motorist coverage as well. His coverage contained a clause precluding him from receiving benefits if he were driving a car owned by him or a family member but not insured under his policy. The court held that the public policy of Mullís survived the enactment of section 627.4132 and that the insurance company’s purported exclusion was invalid. The court went on to state that “uninsured motorist coverage is personal to an insured and differs from liability coverage in that it does not attach to a specific vehicle. A policy provision attempting to exclude coverage or limit it to injuries received in a particular vehicle is void as against public policy.” Id., at 774. If the holding in Hines is strictly construed, it merely holds that an insurance company cannot deny uninsured motorist coverage to an insured driving the separately insured car of his wife. Nonetheless, the language quoted above is clearly broad enough to void the exclusion in the instant case. The Hines court noted the conflict of this language with their earlier decision in Wimpee. They limited Wimpee to its facts, stating that “whether our analysis and conclusion in Wimpee was right or wrong is of no consequence here.” Id., at 774.

In Harbach, the court held that parents’ uninsured motorist coverage covered their son, an insured under the parents’ policy, when he was driving his own uninsured car. Their rationale was that Mullís controlled. They interpreted Wimpee to conflict with South Carolina Insurance Co. v. Kokay, 398 So.2d 1355 (Fla.1981), which they interpreted as holding that section 627.4132 solely dealt with situations where more than one policy applied to an accident.

We believe the reasoning of the cases cited by appellees is more persuasive. It is true that section 627.4132 may be literally read to apply to the instant case. We, however, do not believe the legislature intended to overrule the public policy discussed in Mullís or the holding in that case. Rather, we believe the legislature was solely concerned with the situation where the insured may have more than one policy of uninsured motorist insurance, as in the case of his ownership and insurance coverage for several automobiles, and intended by the enactment of section 627.4132 to prevent the insured from “stacking” these various coverages, and, in the case where the insured is occupying one of his insured vehicles at the time of the accident, to limit his coverage to the coverage for that vehicle.

Accepting appellant’s basic contention, uninsured motorist coverage protects the insured if he is occupying his own insured car or any car, insured or not, that is not owned by him, or if he is not occupying any car at all. Such coverage, though, does not apply while he is occupying cars owned by him, but not insured by him. In our view it does not make sense for uninsured motorist coverage to attach to the insured everywhere except when he enters his own uninsured car. Such an exception would mean that the coverage follows the insured at some times, but follows the insured automobile at other times. Just as the Supreme Court rejected such an exception in Mullís, we reject such an exception here.

Accordingly, based upon the reasoning set out above, we affirm the decision of the trial court.

BERANEK and HURLEY, JJ., concur.

      . If the statute were meant to apply solely to true stacking situations, as we believe it is, we note that such intent could have been more clearly expressed by inserting the word “insured” before the word “vehicle” on line 6 of the statute. If that word were implied, as we believe it is, the statute would be internally consistent, it would apply only to classical stacking situations, and it would not conflict with Mullís.


author: PER CURIAM. ORFINGER, Chief Judge,

text:
    Jo Ann Holder QUEEN, etc., Appellant, v. FLORIDA FARM BUREAU INSURANCE COMPANY, Lakefront Harvesting Company, Inc., and Terry Edswell Kelley, Appellees.
    No. 82-82.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1982.
    Rehearing Denied Jan. 27, 1983.
    Levy, Shapiro, Kneen & Kingcade, Palm Beach, and Larry Klein, West Palm Beach, for appellant.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, and John W. Bussey, III, of Smalbein, Eu-bank, Johnson, Rosier & Bussey, P.A., Orlando, for appellees.
   PER CURIAM.

AFFIRMED. Ford Motor Co. v. Kikis, 401 So.2d 1341 (Fla.1981).

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

ORFINGER, C.J., concurs in part and dissents in part with opinion.

ORFINGER, Chief Judge,

concurring in part and dissenting in part:

In this wrongful death action where the trial court granted a new trial as to damages only on the claim of the decedent’s estate and on the claims of the other beneficiaries, I assume that in affirming the trial court’s order on the authority of Ford Motor Company v. Kikis, 401 So.2d 1341 (Fla.1981), the majority relies on the following portion of that decision:

We have stated and restated the appropriate standard of review of a trial court’s motion [sic] granting a new trial. The test is whether the trial court abused its “broad discretion.” If reasonable men could differ as to the propriety of the action taken by the trial court, then there is no abuse of discretion.

Id. at 1342.

As indicated by the Kikis court, the standard is not new. Neither do I read it as intending to overrule the requirements of Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), that the trial judge must give express reasons which will support his finding that the verdict is either against the manifest weight of the evidence or was influenced by consideration of matters outside the record. This requirement is restated in Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980), which in turn is recognized in Kikis.

Thus, as I see it, to determine if the trial court abused its discretion in granting a new trial, the district court must first examine the stated reasons supporting that order. Before we reach the question of reasonableness, we must first apply the Wackenhut test of sufficiency. If the reasons given are legally insufficient, then there is no basis upon which we can apply a test of “reasonableness” to determine if discretion was abused. There is no “discretion” absent a legally sufficient foundation on which to base it.

Here, although the trial court properly found that the verdict in favor of the estate of Gerald Queen was not supported by the evidence, it made no such finding as to the other claims. The only basis upon which the verdicts for the other plaintiffs were set aside is this statement in the order appealed from: “In that it appears that the jurors were in error, mistaken or confused as to the estate claim, it is more likely that the respective awards as to the .other claims suffer a similar, if not the same infirmity." (emphasis supplied).

In my opinion, the quoted language does not meet the Wackenhut test. See International Insurance Company v. Ballon, 403 So.2d 1071 (Fla. 4th DCA 1981). It lacks the specificity required and leaves one with the conclusion that the trial judge sat as a seventh juror and exercised his veto power, which he is forbidden to do. Wackenhut, 359 So.2d at 435; Laskey v. Smith, 239 So.2d 13 (Fla.1970).

I would affirm the order granting a new trial on damages as to the estate claim, but reverse it in all other respects.