author: GLICKSTEIN, Judge.

text:
    Betty CORTESE, etc., et al., Appellants, v. The SCHOOL BOARD OF PALM BEACH COUNTY, Florida, Appellee.
    Nos. 82-809, 82-988.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Feb. 9, 1983.

      Frank A. Kreidler, Lake Worth, for appellants.
    Bruce Darwin Spector, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is a consolidated appeal from two orders of the School Board of Palm Beach County. The first closed South Grade Elementary School in Lake Worth, changing the boundaries for the children who had been attending it. The second denied appellants a formal hearing pursuant to section 120.57(1), Florida Statutes (1981). Appellants are (a) two mothers, individually as well as in behalf of their children and others similarly situated; (b) the mayor of the City of Lake Worth; and (c) a resident of that city.

The case involves several issues, the first of which is appellants’ standing, administratively and judicially. The parents of the children who were attending South Grade were parties whose substantial interests were affected by the closing of the school and the changing of the school boundaries. School Board of Broward Comity v. Constant, 363 So.2d 859 (Fla. 4th DCA 1978); see Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979); cf. School Board of Orange County v. Blackford, 369 So.2d 689 (Fla. 1st DCA 1979). We fail to perceive such interests on the part of the non-parents/appellants; therefore, we dismiss them from this appeal.

The second issue is whether the board erred in denying the parents’ petition for formal hearing. The parents in this case were involved in administrative rule-making by the school board. Accordingly, their rights were codified by section 120.-54(16), Florida Statutes (1981), and chapters 28-3 and 28-5, Florida Administrative Code (1981). The petition, had it been timely, and the decision thereon, should have involved, respectively, allegations and a determination that the rulemaking proceeding was inadequate to protect the petitioners’ interests. Neither the petition nor the order denying the petition addressed the sole relevant issue. .Under such circumstances, the contention that the board erred in denying the petition for formal hearing never really gets off the ground. Further, we see nothing in the record to justify the need for a drawout.

The third issue is whether the failure of the board to notice its workshop meeting of January 18, 1982, as required by section 120.53(l)(d), Florida Statutes (1981), was fatal to the ultimate decision it reached at its regular meeting on March 3, 1982. Ap-pellee has failed to provide in the record any proof of compliance with the statute. The effect of failure to comply with section 120.53 is recited in section 120.68(8), which provides:

The court shall remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure. Failure of any agency to comply with s. 120.53 shall be presumed to be a material error in procedure.

There was, indeed, a presumption of material error in procedure. However, we find such presumption to have been overcome by the facts at hand; and that the error did not occasion an unfair or incorrect decision in closing the school and changing the boundaries. The facts in this ease are altogether different than those in Blackford v. School Board of Orange County, 375 So.2d 578 (Fla. 5th DCA 1979), wherein numerous determinative, non-public meetings were held among board members and the superintendent in the latter’s office.

In the present case, the record reflects that there was a workshop on January 18, 1982, at which Proposal V A for the closing of South Grade Elementary School was tendered to the board along with recommendations involving other schools. It read as follows:

South Grade Elementary School is the smallest elementary school in the District with an enrollment of approximately 186 students in grades K-6. It is also one of the oldest schools in the county having been built in 1926. The school has been recommended for closing by the State Department of Education in the last two School Plant Surveys. It is recommended that the students attending South Grade be reassigned to nearby schools.
South Grade Elementary School students would be reassigned to the following schools: Barton Elementary School (105 students in grades K-6), North Grade Elementary School (63 students in grades K-6), Poinciana Elementary School (11 students in grades K-5), and Lantana Middle School (2 students in grade 6). It has been estimated that closing South Grade Elementary would result in a savings to the District in salaries and utilities costs of approximately $125,000 depending on its future use.

Such proposal was directly responsive to the expressed intent of the legislature in section 230.23(4)(b), Florida Statutes (1981). Thereafter, public meetings were held in February and March; and at all of these meetings South Grade was only one of several schools involved in boundary changes.

Remarks of the board members at the meeting of March 3, 1982, with respect to South Grade indicate that they met with representatives of the concerned parents who opposed the closing of this venerable, popular school; discussed the subject with other school principals; visited the site; and considered the economics of closing as well as the alternative proposals offered by those opposed to the closing. There was apparently substantial media coverage of the subject for weeks preceding the ultimate vote of 6 to 1 in favor of the superintendent’s recommendation. There is nothing in the record to show that the decision-making was clandestine or sinister, or that the public meetings were merely shells into which non-public decisions were poured, or that the ultimate decision was anything other than the result of bona fide “town meetings.”

The fourth issue is the merits of the decision to close the school and change the boundaries. We endorse the following premise set forth in Polk:

The agency rule-making function involves the exercise of discretion, and absent a flagrant abuse of that discretion a court may not substitute its judgment for that of the agency. Section 120.68(12), Florida Statutes (Supp.1978); Citizens of Florida v. Mayo, 357 So.2d 731 (Fla.1978).

373 So.2d at 962. At the meeting of March 3, 1982, the superintendent recited that South Grade had not been cost effective for years. He appropriately questioned the wisdom of investing additional funds into the school for necessary art and music facilities. The ultimate decision appears to be the result of the board’s concern for the quality of the children’s education.. Accordingly, as to those appellants who remain involved in this appeal, we affirm both orders.

WALDEN, J., concurs.

BERANEK, J., concurs in conclusion only.

      . It is unfortunate that this court’s opinion in Constant was not part of the decision making process at the board level (particularly in a case with as much public interest as this one) nor made known to this court when a stay was being sought. While the decisions may not have been affected, the deliberations thereon would have been. The first reference to the decision by the parties was by appellee’s notice of supplemental authority tendered after all of the briefs were filed in this court. This case leads us to observe that the assistance of computerized research may be affected by the selectivity of the programmers as horse and buggy research may be affected by the selectivity of editors. In this case the decision in School Board of Orange County v. Blackford, 369 So.2d 689 (Fla. 1st DCA 1979), appears under Schools and School Districts, key number 11, and the Constant decision under key number 30. Neither case contains a key number common to both, notwithstanding the common issue of standing.

      . We disagree that parents with children in attendance do not have the right to seek review in the District Court of Appeal of a school board’s decision to close a school or change school boundaries. It is anathema to us to conclude that no avenue of judicial relief is available to them.

      .Section 120.54(16) provides:
      Rulemaking proceedings shall be governed solely by the provisions of this section unless a person timely asserts that his substantial interests will be affected in the proceeding and affirmatively demonstrates to the agency that the proceeding does not provide adequate opportunity to protect those interests. If the agency determines that the rulemaking proceeding is not adequate to protect his interests, it shall suspend the rulemaking proceeding and convene a separate proceeding under the provisions of s. 120.57. Similarly situated persons may be requested to join and participate in the separate proceeding. Upon conclusion of the separate proceeding, the rulemaking proceeding shall be resumed.

      .The entire “drawout” procedure is analyzed in Waas, The Limits Upon the Administrative Procedure Act’s Drawout Remedy, 52 Fla.B.J. 815 (1978). See also the general discussion of rulemaking and standing vis a vis chapter 120 in Waas, Strickland & Kerns, Rulemaking Proceedings: Input, Challenge and Initiation, 53 Fla.B.J. 541 (1979); and Kavanaugh, Administrative Standing Under Chapter 403: What Does the Jerry Case Mean?, 53 Fla.B.J. 729, 730-31 (1979), wherein the latter author observes:
      Each type of procedure provided in Chapter 120 defines its own petitioner, and the “party” status required to initiate each type of proceeding varies with the proceeding requested. For example, merely “affected persons” may present evidence and argument, and request a public hearing during the more informal proceedings for adoption of a proposed rule. But, it takes a “substantially affected person” to challenge a rule through a § 120.54(4) or 120.56 rule challenge proceeding, or to become a party or intervenor to such a proceeding. Persons whose “substantial interests are affected” by a rule or proposed rule — or lack of a rule — may petition an agency to adopt, amend or repeal a rule, or to provide the minimum information about a proposed rule, as can any “person regulated by an agency.” Those persons with “substantial interests” can, upon appropriate showing that those substantial interests are not being adequately protected in the informal forum of rulemaking, “draw out” of the informal proceeding and trigger a formal adjudicatory proceeding under § 120.57 to find facts about the rule in question. As the procedure increases in formality, so does the required showing of a personal stake in the action.
      (Footnotes omitted; emphasis original.)

      . Chapter 28-5.604(1), Florida Administrative Code (1981), provides:
      At any time prior to the conclusion of a public hearing conducted under the provisions of Section 120.54(3), any person may assert that his substantial interests will be affected in the proceedings, and shall affirmatively demonstrate that the rulemaking proceedings do not provide an adequate opportunity to protect his substantial interests and request that the hearing be conducted under the provisions of Section 120.57 to the extent necessary to provide that opportunity and to protect his substantial interests.

      . The petition was not filed until April 20, 1982. Accordingly, although the petition raised several considered legal grounds, counsel then representing petitioners may have considered the statutory ground to be moot.

      . The board’s order was not summary in nature and discussed various sections of chapter 120, Florida Statutes (1981). Nevertheless, as to section 120.57(1), it simply turned on the Blackford decision and held that petitioners lacked standing for such a hearing. Petitioners/parents did not lack standing for a drawout; they failed to establish grounds.

      . Section 120.53(l)(d) provides that agencies “shall give notice of meetings, hearings, and workshops in the same manner as that prescribed for rulemaking in subsection 120.54(1)
      Section 120.54(l)(a) provides that notice of intent by an educational unit to adopt a rule shall be made by publication, mail, and posting.

      . Section 230.17(2), Florida Statutes (1981), which provides for notice of regular and special meetings must be read in pari materia with section 120.53(l)(d) which requires notice of workshops in rulemaking.

      . We have considered the affidavits attached to the parties’ appendices as if they had been filed as suggestions to the court. They indicate that tape recordings were available of relevant portions of the meetings of January 18, 1982, and February 8, 1982, for the preparation of transcripts. Appellants apparently elected not to obtain same at their expense pursuant to chapter 28-3.31(5), Florida Administrative Code (1981).

      . Section 230.23(4)(b) includes within the powers and duties of school boards:
      (4) ESTABLISHMENT, ORGANIZATION, AND OPERATION OF SCHOOLS. — Adopt and provide for the execution of plans for the establishment, organization, and operation of the schools of the district, as follows:

      (b) Elimination of school centers and consolidation of schools. — Provide for the elimination of school centers within the district and for the consolidation of schools whenever the needs of pupils can better and more economically be served at other school centers than those which they have been attending.

      . We consider the absence of an economic impact statement to be harmless error. School Board of Broward County v. Gramith, 375 So.2d 340 (Fla. 1st DCA 1979); Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979). There has been no showing that its absence either harmed the board’s decision-making process or adversely affected its decision. The superintendent’s recommendation plainly expressed a saving of $125,000 by closing the school.
      Similarly, we believe appellants’ claim of error occasioned by the absence of requirements and procedures for the closing of schools warrants cursory mention only. The economics of this school’s continued operation was considered in a rulemaking framework. The rulemaking in this case did not require administrative tools in addition to sections 120.53 and 120.54, unlike the situation in Witgenstein v. School Board of Leon County, 347 So.2d 1069 (Fla. 1st DCA 1977), which required rules of practice relating to assessment of personnel.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Albert E. SAULNIER, Jr., Appellant, v. Theresa L. SAULNIER, Appellee.
    Nos. 81-1547, 81-2189.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Rehearing Denied Feb. 9, 1983.
    James P. O’Flarity, Palm Beach, for appellant.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney and Searcy, P.A., West Palm Beach, for appellee.
   PER CURIAM.

This is a consolidated appeal from two non-final orders. We affirm the order which denied the appellant/husband’s motion to quash service of process and to dismiss for lack of jurisdiction. We reverse the order which granted appellee temporary relief by increasing the alimony being paid to her prior to final hearing on her post-judgment petition for modification filed pursuant to section 61.14, Florida Statutes (1979). We find no authority for such award of temporary relief prior to final hearing in this post-judgment proceeding. The trial court reasoned in making the award that appellant would receive credit for the temporary increase in the event the appellee wife did not ultimately prevail in her petition. The basic flaw in such conclusion is that the husband became immediately subject to contempt for nonpayment of the temporary increase, which could have harmful, irremediable effects pendente lite should the husband ultimately prevail at final hearing. The law can provide proper relief to a party seeking post-judgment modification, without the foregoing possibility for harm, by determining the relief at final hearing and making it effective as of the date of filing the petition upon proof of entitlement thereto. Buckley v. Buckley, 343 So.2d 890 (Fla. 4th DCA 1977), app. dismissed, 362 So.2d 1050 (Fla.1978).

LETTS, C.J., and GLICKSTEIN and WALDEN, JJ., concur.


author: HERSEY, Judge.

text:
    COVE CLUB INVESTORS, LTD., a Florida Limited Partnership and Cove Club General Inc., and Charles C. Crosswhite, as its General Partners, Cove Club Management, Inc., d/b/a Sandalfoot Cove Country Club and Charles C. Crosswhite, Individually, Appellants, v. SANDALFOOT ASSOCIATES, INC., Appellee.
    No. 81-1797.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Rehearing Denied Feb. 9, 1983.
    John R. Young of Hamilton, James. Mer-kle & Young, West Palm Beach, for appellants.
    W. Jay Hunston, Jr., of DeSantis, Cook, Gaskill & Silverman, P.A., North Palm Beach, for appellee.
   HERSEY, Judge.

The final summary judgment which is the subject of this appeal construed a Declaration of Use Restrictions in favor of the plaintiff class and determined that there was no genuine issue as to any material fact. In so ruling the trial court necessarily found the Declaration was clear and unambiguous on its face, precluding the admission of extrinsic evidence as to its appropriate interpretation.

The trial court made three specific findings, any one of which, if supportable, would justify a judgment in favor of appel-lee as a matter of law.

The court found that while the Declaration imposed a duty to use parcels described in Exhibits A, B, and C of the Declaration for recreational purposes, it failed to impose a corresponding duty to utilize those facilities (and thus to pay a monthly fee) oh property owners subsequently acquiring an interest in the real property described in Exhibits 1, 2, and 3 of the Declaration. Appellants argued in the trial court and maintain here that paragraph 7 of the Declaration imposes such a duty. We agree that the matter is not sufficiently clear to justify summary disposition. Where each of the parties suggests a different but reasonable interpretation of the language of the Declaration on this point, the issue is one of fact which precludes summary judgment. Griffin Builders Supply, Inc. v. Jones, 384 So.2d 265 (Fla. 2d DCA 1980).

The court further found that the use restrictions apply only to “apartments or condominium units and the residences being constructed [on parcels described in Exhibits 1, 2 or 3] consist of fee simple, single family townhouses,” and thus they could not be applied to appellee’s property even if a duty was otherwise imposed as to these parcels. We note first that the Declaration creates burdens and duties for the benefit of “owners of property.” It is therefore not clear that a single family residence would avoid the use restriction. Of equal importance, is our conclusion that “apartment” and “townhouse” are not, as a matter of law, mutually exclusive terms. This finding too presents a matter requiring evidence for clarification, certainly as to the respective meanings of the terms and perhaps, depending upon the outcome of that inquiry, as to the intention of the parties.

The third finding of the trial court is that such restrictions, even if they applied to property located on one of the lots described in Exhibits 1, 2 or 3, and even if they applied to a townhouse, could not be availed of by appellants because of language in the Declaration to the effect that only a condominium corporation or association may enforce the restrictions. The language on which this conclusion rests is permissive only; it provides that the restrictions “may be enforced by [a condominium corporation or association etc.]” and does not purport to delineate or grant an exclusive right of enforcement to those bodies.

. We conclude that genuine issues of material fact are raised by the complaint for declaratory relief which were not put to rest by the pleadings and evidence before the trial court, requiring that we reverse the summary final judgment and remand for further proceedings.

REVERSED and REMANDED.

LETTS, C.J., and DELL, J., concur.


author: GRIMES, Acting Chief Judge.

text:
    John W. KOTCHMAN and Shirley A. Kotchman, his wife, Appellants, v. Martin W. FIELD, Appellee.
    No. 82-31.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1982.
    Rehearing Denied Jan. 21, 1983.

      Gerald R. Colen of DeVito & Colen, P.A., St. Petersburg, for appellants.
    James J. Rowan of McCutcheon & Rowan, St. Petersburg, and Leslie D. Franklin of Leslie D. Franklin, P.A., St. Petersburg, for appellee.
   GRIMES, Acting Chief Judge.

This appeal involves the fallout resulting from an aborted land sales contract.

Martin Field contracted to purchase land in Pinellas County for $5,250,000 from John and Shirley Kotehman. The contract called for an earnest money deposit of $50,000 to be placed in escrow. At closing, the Kotch-mans would receive $1,200,000 in cash plus a mortgage of $4,000,000. Closing was set for January 15,1981. The contract allowed Field the option of extending the closing date for up to two thirty-day periods by paying the Kotchmans additional monies. Closing was contingent upon Field’s obtaining a site plan approval and a building permit.

Field exercised his option to procure both extensions, thereby moving the closing date to March 15, 1981. However, on March 11, 1981, Field filed suit against the Kotchmans for specific performance. He alleged, among other things, that the Kotchmans had stated that they would refuse to close and that they were violating the agreement by refusing to cooperate with Field in obtaining a final site plan approval and a valid building permit. In the Kotchmans’ answer, they alleged that they had complied fully with the contract and that Field had brought the lawsuit in order to obtain an unwarranted extension of time for closing beyond March 15, 1981. They also filed a counterclaim seeking damages for disparagement of title and breach of contract.

On July 16, 1981, the date set for trial, the parties entered into a stipulation in open court which provided for a settlement of the lawsuit. The stipulation provided that the closing date would be extended until September 15, 1981. The parties agreed to escrow a deed and mortgage. As soon as this was accomplished, the earnest money deposit of $50,000, previously placed in escrow, would be released to the Kotch-mans. In addition to paying $1,200,000 at closing, Field agreed to pay the Kotchmans an additional $95,000. This sum would cover the Kotchmans’ costs and attorney’s fees in the approximate amount of $50,000, and interest payments on an outstanding mortgage and pro-rated taxes through September 15,1981, totalling $45,000. Because the site plan and building permit had already been obtained, Field waived his right to withdraw from the contract should these approvals not be forthcoming. The parties agreed to the entry of a judgment reflecting the provisions of the settlement, to which would be attached a copy of the original sales contract.

The deed was prepared shortly after the settlement. The note and mortgage were not prepared until about two weeks before the scheduled closing date because of an unavoidable delay in obtaining some information necessary for completion of the mortgage. The $50,000 earnest money remained in escrow. Shortly before closing, Field’s mortgage commitment was withdrawn, and he was unable to proceed with the purchase. The parties then filed numerous motions concerning the disposition of the monies referred to in the stipulation as well as other matters.

At the hearing, the court noted that the final judgment had never been signed because the parties had been unable to agree upon its form. Therefore, the court entered a final judgment, nunc pro tunc, which set forth the provisions of the stipulation. At a later hearing, the court took testimony concerning the various contentions of the parties. Thereafter, the court entered a supplemental final judgment awarding the original $50,000 earnest money to the Kotchmans as a full and complete satisfaction of all of Field’s obligations to the Kotchmans. The court otherwise denied the parties’ claims against each other.

On appeal, the Kotchmans contend that the court erred in failing to award them the $95,000 referred to in the stipulation and in refusing to allow them to seek damages for Field’s breach of the land sales contract. Field cross-appealed claiming his right to reimbursement of the $50,-000 on the premise that the Kotchmans were unable to furnish a clear title to the property. The cross-appeal is without merit because the evidence supports the court’s conclusion that it was Field, rather than the Kotchmans, who was in default under the contract. We also agree that the Kotch-mans could not recover damages, as such, for Field’s failure to go through with the transaction. However, we reverse that portion of the supplemental judgment which held that the Kotchmans were not entitled to the $95,000.

The parties entered into the stipulation to avoid the consequences of the lawsuit. Field agreed to pay the $95,000 in order to extend the closing date. This payment was contemplated to cover matters arising between Field and the Kotchmans from the date of the filing of the suit. The $50,000 was specified as being the approximate amount of attorney’s fees and costs the Kotchmans had expended in the suit. The $45,000 was to make the Kotchmans whole for the delay in the closing until September 15, 1981. The original contract provided that for each thirty-day extension in the closing, Field would pay $6,250 plus the real estate taxes accruing on the property during the thirty-day period. The $6,250 constituted one month’s interest on an outstanding mortgage. Field paid the Kotchmans $7,500 per month for the two extensions which moved the closing from January 15, 1981, to March 15, 1981. By virtue of the lawsuit and the stipulation, the closing was delayed an additional six months from March 15, 1981, to September 15, 1981. It was logical for the Kotchmans to be reimbursed for mortgage interest and taxes for the six additional months at a rate of $7,500 a month because this was money which the Kotchmans would not have had to expend if the closing had occurred on March 15, 1981. Moreover, Field is in no position to argue that since the Kotchmans still own the land, they ought not to be reimbursed for the mortgage interest and taxes. It was Field’s fault that the sale never took place and, in the meantime, the Kotchmans’ land was tied up under the contract. Consequently, the Kotchmans were entitled to the $95,000 on September 15, 1981, regardless of whether Field went through with the purchase.

In refusing to award the Kotchmans anything more than the original $50,000 earnest money, the court reasoned that because the land sales contract was made a part of the settlement, the provisions of paragraph 8(b) thereof exonerated Field from all other liability. Paragraph 8(b) of the contract read as follows:

(b) In the event Purchaser defaults under the terms of this Agreement, the earnest money deposit, together with all interest accrued thereon, shall be forfeited to Seller as liquidated damages, consideration for the execution of this Agreement, and in full settlement of all claims of the Seller, whereupon all parties shall be relieved of all obligations under this Agreement.

The land sales contract was made a part of the settlement because it contemplated the closing of the sale pursuant to the contract. The closing details contained in the contract were a necessary part of the sale. We agree that the provisions of paragraph 8(b) precluded the Kotchmans from suing Field for damages for breach of the contract. However, we do not construe the provisions of paragraph 8(b) as having any bearing on the disposition of the $95,000. This was simply money Field agreed to pay the Kotchmans as part of the settlement in order to move the closing back to September 15, 1981. Even if the $95,000 could be characterized as additional earnest money, thereby increasing the purchase price by that amount, Field would be no better off because then the provisions of paragraph 8(b) would dictate its forfeiture to the Kotchmans along with the original $50,000 earnest money.

Accordingly, we reverse that portion of the supplemental final judgment denying the Kotchmans’ claim for $95,000 and remand with directions to enter a judgment for the Kotchmans in accordance with this opinion. In all other respects, the judgment is affirmed.

RYDER, J., and NELSON, WILLIAM J., Associate Judge, concur.


text:
    Richard SIMS, Terrence Heiden, James Born, Ronald Butler, Jerry Jones, Christina Richmond and Richard Schearer, Appellants/Cross-Appellees, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 79-2561.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Rehearings Denied Feb. 9, 1983.

      Louis M. Jepeway, Jr., of Jepeway & Jepeway, P.A., Miami, for appellants/cross-appellees, - Sims, Heiden and Born.
    Michael Bryant of Birr, Bryant & Saier, P.A., Fort Lauderdale and Gainesville, and Jack M. Ross, Gainesville, for appellant/cross-appellee, Butler.
    John D. O’Donnell of Panza & O’Donnell, Fort Lauderdale, for appellants/cross-ap-pellees, Jones, Richmond and Schearer.
    Jim Smith, Atty. Gen., Tallahassee, Laura R. Morrison and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for appel-lee/cross-appellant.
   HERSEY, Judge.

This appeal results from pleas of nolo contendere with the right reserved by each of the seven defendants to appeal the partial denial of their motions to suppress. The state cross-appeals from a determination that all of the defendants had standing to challenge all searches and seizures in issue.

The various arrests, searches and seizures were occasioned by an episode which occurred in 1978. Agent Chuck Dodge of the Drug Enforcement Administration received a tip during the latter part of July that a vessel utilized to transport marijuana into Delray Beach had been located at the dock behind a residence at 942 Bolender Drive in that city. Officer John Marinello of the Boca Raton Police Department obtained related information by examination of trash recovered in a controlled trash pickup from the residence of defendant Schearer in Boca Raton. A controlled trash pickup was also conducted at the residence on Bolender Drive.

Acting on this information, periodic surveillance of the Bolender Drive residence and dock was initiated on August 1, 1978, and continued until a boat was observed to have docked at the property in the early evening of August 6. ' Three law enforcement officers, Meeteer, Virgadamo and Pal-ler, took up surveillance from points on private property immediately to the east and west of the residence, as well as from a point on the opposite side of the intracoas-tal waterway (with binoculars). No identifiable activity occurred until shortly after 1:00 a.m. when several of the defendants were seen carrying what appeared to be bales of marijuana from two to three feet in length and a foot and one-half thick from the right side of the vessel to the rear of the residence. Two of the officers then left to obtain assistance in effecting arrests. Additional officers arrived within fifteen to twenty minutes and took up positions around the residence.

When three individuals came out of the residence, picked up bales from the dock area and were about to re-enter the house, Agent Marinello and Sergeant Meeteer came from the bushes, identified themselves as police officers and advised defendants Born and Sims and co-defendant Creighton (not a party to this appeal) that they were under arrest. As these defendants scurried into the house followed by Officers Marinel-lo and Virgadamo, Sergeant Meeteer ordered defendants Heiden and Butler off the boat and into the residence, where these defendants were advised of their Miranda rights.

When the officers entered the residence, they noticed bales of marijuana stacked along the walls. Furthermore, from his position in the backyard Sergeant Meeteer was able to see a bale lying on the floor of the vessel. A search of the residence did not reveal any additional suspects.

During the early morning hours defendants Jones and Richmond drove up to the residence and on being asked what they were looking for, Richmond told Officer Rawls that she “live[d] at 942.” She then added, “No, I don’t. I live at 952.” Defendants continued down the street, turned around in the cul-de-sac and passed by the house for a second time. The vehicle was stopped. Officer Rawls ascertained that defendant Jerry Jones was in the car. The police officers had prior information that the telephone at the residence was issued to a Jerry Jones. Both defendants Richmond and Jones were arrested. At approximately 6:00 a.m. Sergeant Meeteer answered the telephone in the residence. On being asked if the “stuff” was ready, Meeteer replied that it was, and told the caller to come over. Ten to fifteen minutes later defendant Schearer arrived. Sergeant Meeteer recognized his voice as that of the individual he had spoken to and placed Schearer under arrest.

After all of the defendants had been arrested, the officers searched the vessel and recovered additional evidence.

An Information was filed charging all defendants with possession of marijuana in excess of one hundred pounds with intent to sell.

Defendants’ motion to suppress evidence seized from the vessel was granted except as to the bale that was in plain view on the boat and observed by Sergeant Meeteer. Additionally, defendants’ motion to suppress evidence obtained from the house was denied as was the motion to suppress items found in the trash pickups.

The question of standing was not raised as an issue since, at that time, defendants were assumed to have automatic standing because of the possessory nature of the crime charged. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). After the instant appeal was filed, the United States Supreme Court receded from the Jones standing rule in Rawlings v. Commonwealth of Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), and United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Accordingly, this court relinquished jurisdiction, directing the trial court to conduct an evidentiary hearing under the new rules of standing as announced by the United States Supreme Court. Such a hearing was held and the trial court (a different judge) found that all defendants had standing to contest the validity of all searches and seizures. This determination is the subject of the state’s cross appeal.

At the evidentiary hearing, only defendant Richmond presented testimony of an ownership interest in the premises searched. According to Richmond’s testimony, she leased the premises and had given each of the defendants permission to be on the property to transport goods from the boat to the home. Butler, Heiden and Sims, the only other defendants to testify, claimed that they secured the premises in an attempt to assure privacy. These defendants purposefully chose to carry out their activity in the dark of night so as to be free from observation. During the day they maintained a low profile so as not to attract attention to the residence and, at night, they waited until all of the lights in the neighborhood and across the waterway were out before commencing their activities. Indeed, at one point, they stopped because of a single light at least six hundred feet away across the waterway. At all times they tried to maintain silence so as not to attract attention. Further, the property backed onto a canal and had bushes along both sides of the rear yard. The bushes, however, did not completely obscure the view of the backyard and in fact had several gaps.

No testimony was presented as to ownership of the vessel nor was there any indication that defendants took any measures to prevent observation into the vessel. Given this background we next consider each of the issues raised on appeal.

I. Whether the trial court erred in finding that all defendants had standing to contest the validity of all searches and seizures. (State’s cross appeal.)

In applying the Fourth Amendment, the critical inquiry is to determine whether a defendant had an expectation of privacy in the area searched. The fact that one may be legitimately on the premises, while relevant to one’s expectation of privacy, is not determinative of the issue. Some demonstration of standing beyond mere presence on the premises is required under both the United States and Florida constitutions. Inchaustequi v. State, 392 So.2d 319 (Fla. 4th DCA 1980).

Accordingly, defendants, with the exception of Richmond, failed to demonstrate standing to challenge the search of the residence and the trial court’s conclusion that they had such standing was in error. Further, no defendant demonstrated standing to contest the search of the boat.

II. Whether the observations of the police officers, while they were trespassers on private property and from one vantage point were using binoculars, violated defendants’ rights so that such observations cannot be used to establish probable cause.

Defendants had no interest in the property from which the activity was observed, thus the following quote from Ensor v. State, 403 So.2d 349, 352 (Fla.1981), is applicable:

The third situation concerns a “pre-in-trusion.” Here, the officer is located outside of a constitutionally protected area and is looking inside that area. If the officer observes contraband in this situation, it only furnishes him probable cause to seize the item. He must either obtain a warrant or have, some exception to the warrant requirement before he may enter the protected area and seize the contraband. As with the non-intrusion situation, the term “plain view” should not be employed here to prevent confusion. For clarity, we label an observation in the latter two non-Coolidge situations as a legally permissive “open view.”

As this court stated in the recent opinion of State v. Bell, 417 So.2d 822 (Fla. 4th DCA 1982):

Put simply, a person can only complain about illegal police intrusions into areas wherein that person has a valid personal expectation of privacy. Katz [v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)]. In the usual case, for instance, a homeowner would clearly have standing to complain about an illegal intrusion into his home but would not have standing to complain about an illegal intrusion into his neighbor’s home. In our view that is precisely the situation we have at hand. The appellees are complaining about an alleged illegal intrusion onto property in which they concededly had absolutely no expectation of privacy. Just as a defendant is barred from chai-lenging an illegal search of the very premises upon which he is located absent a demonstration of personal privacy rights, we believe he is similarly barred from challenging an illegal intrusion onto property in which he admittedly has no interest and in which no search or seizure takes place.
We concede that most of the cases that involve police surveillance of illegal activity or contraband note the status of the police on the property from which the surveillance is made. See e.g. State v. Rickard, supra. In cases of “plain view” where the police are in a constitutionally protected area when they observe the contraband or illegal activity, it is clear that the police must have a legal right to be where they are vis-a-vis the privacy rights of the person complaining. However, when the police are located outside of a constitutionally protected area we do not believe a defendant has standing to complain of the legal status of the police observer absent evidence that the police have otherwise violated the defendant’s expectations of privacy. In other words, a person who conducts illegal activity or possesses contraband that is completely open to view from adjacent property will not generally be deemed to have a reasonable expectation of privacy. Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978).

Defendants relied primarily upon surreptitious activity to establish an expectation of privacy. This is not a legitimate expectation which society is prepared to recognize.

Defendants may have demonstrated a subjective expectation that their activities would not be observed by persons who might intentionally or accidentally come upon the adjacent properties. However, the photographs of the backyard show that there were gaps in the bushes through which anyone could observe activity, including neighbors and police. Thus, defendants demonstrated no recognized expectation that their activities would not be subject to “open view.” Accordingly, through their observations, the police obtained sufficient probable cause for arrest and search.

As to the use of binoculars, see State v. Trepany, 409 So.2d 529 (Fla. 4th DCA 1982), in which this court held by implication that use of a nightscope does not violate constitutional rights. When law enforcement personnel have the right to look where they are looking there is no constitutional prohibition against the use of a device such as binoculars or a night-scope to enhance that view.

III. Whether the warrantless search of the residence was unconstitutional.

At approximately 1:10 on the morning of August 7, 1978, the police first observed persons carrying what they recognized as bales of marijuana from the boat to the house. This activity was initially observed from a vacant field, two or three hundred feet from the residence in question. After watching the movement for about five or ten minutes, the police decided to contact backup officers to assist in making arrests. Meeteer met with the other officers and explained the situation. All officers then proceeded to the residence and took up surveillance. However, it had begun to rain so that nothing was observed. Approximately twenty minutes later the rain stopped and the officers saw defendants resume unloading of the marijuana. At that time, as three defendants were returning with bales to the house, the officers emerged from the bushes, identified themselves, and advised the subjects that they were under arrest. One of the defendants was just entering the house with the two others right behind him. Marinello followed them into the residence and placed them in custody. Once inside the residence Marinello observed the additional bales of marijuana.

The officers obviously had probable cause to arrest the defendants, having observed them committing a felony. They also had the right to follow the defendants into the house to effect the arrest, since there was no time to obtain an arrest warrant. Rizzo v. State ex rel. City of Pompano Beach, 396 So.2d 869 (Fla. 4th DCA 1981). From his lawful position in the house, Marinello observed the bales of marijuana in plain view. Accordingly, there was no unconstitutional search and subsequent seizure.

IV. Whether the warrantless search of the boat was unconstitutional.

Agent Meeteer observed one bale of marijuana on the vessel from his lawful position in the yard. That bale was in plain view and not the object of a search and seizure. The other bales found on the vessel were suppressed by the trial court. Because of our earlier determination that no defendant established standing to assert Fourth Amendment rights related to the vessel or its contents, the order of suppression was erroneous.

V. Whether the warrantless search of the containers was unconstitutional.

Defendants cite numerous cases holding that a warrant is required for a search of containers. While this is a principle well entrenched in search and seizure law, it is not applicable to the instant case. Here, it was obvious from the wrapping, shape, smell and residue observed that the bales were in fact marijuana, unlike the cases cited by defendants where the containers held unidentified material prior to being opened.

To elaborate, after observing defendants unloading the bales under the dark of night in a surreptitious manner, and after smelling the odor of marijuana emanating from the packages, and after observing marijuana residue on the floor where the bales were stacked, the police action in opening a package was not a search. Rather, the marijuana was in plain view and “plain smell,” not in a container requiring a search warrant.

YI. Whether the police officers acted outside their jurisdiction.

Defendants Sims, Born and Heiden complain that Marinello, a Boca Raton officer, was acting outside his jurisdiction in Delray Beach. This issue was never raised before the trial court; accordingly, it is not a proper point for appellate review. Further, the testimony is clear that Mari-nello was acting at the request and direction of the Delray Beach Police Department through Sergeant Meeteer. On either count the point is without merit.

VII. Whether the detention of Jones, Richmond and Schearer was illegal.

Defendants Jones, Richmond and Schearer reserved the right to appeal the denial of their motions to suppress, none of which were based on their allegedly illegal detention. Accordingly, they cannot raise this issue for the first time on appeal. See Brown v. State, 376 So.2d 382 (Fla.1979).

VIII. Whether the warrantless search of defendant Schearer’s trash was unconstitutional.

Only defendant Butler contends that the controlled trash pickups at defendant Schearer’s house and the residence where Butler was arrested were unconstitutionally impermissible. Butler never established a right to privacy or interest in any of the trash; therefore, he has no standing to contest the “trash searches.” Further, this court recently held that “once the trash is deposited on the swale for collection it is unreasonable to expect that its security will remain inviolate until it is commingled with all other trash.” State v. Schultz, 388 So.2d 1326, 1329 (Fla. 4th DCA 1980).

Accordingly, we affirm the partial denial of the motions to suppress on the basis that, as to all defendants except Richmond, there was no standing to assert Fourth Amendment rights in connection with the search of the residence and in any event and as to all defendants there was no illegal search and seizure. That portion of the order suppressing evidence discovered during a search of the vessel is reversed because no defendant had standing to object to that search. The order determining that all defendants had standing to contest all searches and seizures is reversed.

AFFIRMED IN PART AND REVERSED IN PART.

BERANEK and DELL, JJ., concur.


author: HURLEY, Judge.

text:
    KING MOUNTAIN CONDOMINIUM ASSOCIATION, INC., et al., Appellants, v. William GUNDLACH, et al., Appellees.
    Nos. 80-869, 80-1144.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Rehearing Denied Feb. 9, 1983.
    Jeffrey E. Streitfeld and Mark B. Schorr of Becker, Poliakoff & Streitfeld, Fort Lauderdale, for appellants.
    Davis W. Duke, Jr., and J. Cameron Story, III, of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellees.
   HURLEY, Judge.

The principal question on appeal is whether the appellants, a condominium association and a class of unit owners, had a constitutional right to a jury trial on their claim against the developer-appointed, initial officers and directors of the association. We have concluded that the appellants did not have a constitutional right to a jury trial on their claim seeking disgorgement and restitution of alleged unjust enrichment in the form of secret profits obtained through unconsented-to self-dealing. With regard to the appellants’ other points on appeal, we have found no reversible error and, accordingly, we affirm the judgment appealed.

King Mountain Condominium Association and. a group of unit owners acting on behalf of the class of owners in the condominium, which is also known as Monterey Yacht and Country Club, instituted this suit against the condominium developer, the lessor of a long-term recreation lease, and the developer-appointed, initial officers and directors of the association. The association and the class were dissatisfied with the provisions of a ninety-nine year recreation lease, particularly the rent escalation clause. They sought a declaratory judgment that the lease, or certain of its provisions, was unenforceable because of alleged unconscionability or because of the inclusion of alleged unfair and unreasonable covenants. In addition, they sought damages, an accounting, and other relief for breach of the duty of the initial officers and directors of the condominium association to refrain from unjustly enriching themselves through uncon-sented-to self-dealing. See Avila South Condominium Association v. Kappa Corp., 347 So.2d 599, 607 (Fla.1977). After a bench trial, the trial judge entered a judgment in favor of the defendants on all counts.

The first question we must address is whether the trial court erred in denying the appellants’ motion for a jury trial on the issue of improper self-dealing. The appel-lees, by motion to strike, opposed the jury request on the ground that appellants were seeking to enforce an equitable right and obtain an equitable remedy.

The Declaration of Rights of the Florida Constitution guarantees the right to trial by jury: “The right to trial by jury shall be secure and remain inviolate.” Article I, Section 22, Florida Constitution; see Hightower v. Bigoney, 156 So.2d 501 (Fla.1963); Rule 1.430(a), Fla.R.Civ.P. While it is true that questions concerning the entitlement to this right should be resolved, if possible, in favor of a jury trial, Hollywood, Inc. v. City of Hollywood, 321 So.2d 65, 71 (Fla.1975), it is also certain that the right to a jury trial applies only to legal as opposed to equitable causes of action. This distinction was underscored by the court in Hawkins v. Rellim Investment Co., 92 Fla. 784, 110 So. 350, 351 (1926) where it held:

In construing section 3 of the Declaration of Rights and the Seventh Amendment to the federal Constitution, the courts hold that these provisions are designed to preserve and guarantee the right of trial by jury in proceedings, according to the course of the common law as known and practiced at the time of the adoption of the Constitution, and in neither case do they extend to or have any reference to equitable demands enforced in the courts of chancery. They cover a narrow field of litigation affecting private rights and are not applicable to remedies unknown to the common law.

As new causes of action developed, it became more difficult to determine a litigant’s right to a jury trial. No longer did a quick reference to the history of the chancery courts provide a clear-cut answer. A more probing analysis was necessary. Since the Seventh Amendment to the Federal Constitution also guarantees the right to trial by jury in legal actions, Florida courts looked to federal case law for guid-anee in developing a suitable test. See High Tower v. Bigoney, 156 So.2d 501 (Fla.1963); Smith v. Barnett Bank of Murray Hill, 350 So.2d 358, 359 (Fla. 1st DCA 1977); Dobbs, Remedies § 2.6 at 80 n. 53 (1973 West). The federal test is often phrased in terms of whether, “the action involves rights and remedies of the sort traditionally-enforced in an action at law, rather than an action in equity or admiralty.” Pernell v. Southall Realty, 416 U.S. 363, 375, 94 S.Ct. 1723, 1729, 40 L.Ed.2d 198, 209, annot. 846 (1974); see Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). Simi larly, the Florida test is whether the party seeking a jury trial is trying to invoke rights and remedies of the sort traditionally enforceable in an action at law. See Cheek v. McGowan Electric Supply Co., 404 So.2d 834 (Fla. 1st DCA 1981); see generally 33 Fla.Jur.2d Juries § 13 et seq. (1982); 22 Fla.Jur.2d Equity §4 et seq. (1980).

In the case at bar, appellants assert that the trial court erred in denying their motion for a jury trial on their claim for damages for breach of fiduciary duty. In response, the appellees contend that the appellants’ claim for “damages” is actually a claim seeking the restitution of unjust enrichment obtained through alleged misuse of the fiduciary relationship, and that such a claim is cognizable exclusively in equity. The mere use of the label “damages” is not sufficient to create a right to jury trial. Cf. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477-78, 82 S.Ct. 894, 900, 8 L.Ed.2d 44, 51 (1962) (the constitutional right to trial by jury cannot be made to depend on the choice of words used in the pleadings). Rather, the right to trial by jury turns on the nature of the right and remedy sought to be enforced.

“Breach of a fiduciary duty” is an ambiguous expression. Fiduciaries have a number of duties towards their beneficiaries, some of which are legal and some equitable. See Dobbs, Remedies §§ 10.4 and 4.3 at 252 (1973 West). Moreover, law and equity often had concurrent jurisdiction in matters concerning fiduciaries. See, eg., Scott v. Caldwell, 160 Fla. 861, 37 So.2d 85, 87 (1948) (accounting). Thus, it has been said that, “A fiduciary who commits a breach of his duty as fiduciary is guilty of tortious conduct and the beneficiary can obtain redress either at law or in equity for the harm done. As an alternative, the beneficiary is entitled to obtain the benefits derived by the fiduciary through the breach of duty.” Restatement of Restitution § 138 comment a (1937); see Restatement (Second) of Torts § 874 comment b (1979). Therefore, the fact that a cause of action arises out of a fiduciary relationship does not necessarily mean that the action is one cognizable only in equity. Beck v. Barnett National Bank of Jacksonville, 117 So.2d 45, 50 (Fla. 1st DCA 1960) (list of examples). Again, whether the action will lie at law, in equity, or both depends on the nature of the breach and the remedy sought.

We believe that the breach and the remedy sought in the present case were equitable in nature. The appellants’ claim was recognized by the Florida Supreme Court in Avila South Condominium Association v. Kappa Corp., supra. In characterizing the nature of the claim, our Supreme Court said that,

[Sjelf dealing by officers and directors of condominium associations, without more, is not actionable .... Certain public interests may be served by leaving to-.developers the possibility of self dealing; such flexibility may facilitate financing of some phases of some projects, with resulting economies that can be passed on to the public. But there is absolutely nothing to recommend a rule of law which encourages persons in positions of trust secretly to betray their trust for inordinate personal gain, at the expense of those to whom they owe a fiduciary duty.... [Therefore, we] hold that any officer or director of a condominium association who has contracted on behalf of the association with himself, or with another corporation in which he is, or becomes substantially interested, or with another for his personal benefit may be liable to the association for that amount by which he was unjustly enriched as a result of his contract. However, no director or officer shall be required to return any portion of moneys paid by the association where it is shown that he received funds with the consent of the association or with the consent of a substantial number of the individuals comprising the association. After careful consideration of the facts in each case, based upon specific findings, the trial judge, in his discretion, shall grant such relief as equity dictates.

347 So.2d at 607 (emphasis added). Thus, the disgorgement of secret profits obtained by the developer-appointed, initial officers and directors of a condominium association is an equitable remedy which does not give rise to a right of trial by jury.

As for appellants’ other points on appeal, we have concluded that the appellants have failed to demonstrate reversible error. The appellants have asserted that the trial court failed to consider and apply the rebuttable presumption of unconsciona-bility set forth in Section 718.122, Florida Statutes (1977). The appellees, however, assert that the statute was fully presented and argued to the trial judge and that there is no indication that the judge did not consider and apply the rebuttable presumption. Based on these assertions, and because there is no record evidence to support the appellants’ assertion, we must assume that the trial court properly applied the statute.

The appellants have also asserted that the evidence in this case cannot support the trial court’s ruling that the lease is not unconscionable. The evidence on this point, however, was substantial and conflicting. Although we may have evaluated the evidence differently in the first instance, we cannot reverse because the trial court resolved the conflicts in a permissible manner and the judgment is supported by substantial competent evidence. See Delgado v. Strong, 360 So.2d 73 (Fla.1978); see generally 3 Fla.Jur.2d Appellate Review §§ 313, 347, 348 (1978). For the same reasons, we cannot reverse the trial court’s finding that the escalation clause does not constitute an unenforceable covenant.

Finally, we note that the appellants, in support of their argument that the trial court should have concluded that the escalation clause was unenforceable, submitted as supplementary authority the recent opinion in Steinhardt v. Rudolph, 422 So.2d 884 (Fla. 3d DCA 1982) [7 FLW DCA 1793], There, the Third District affirmed a trial court’s finding that an escalation clause in a condominium ground lease was unconscionable. Although Steinhardt offers some support for appellants’ position, it is distinguishable and does not compel a reversal in this case. There are substantial differences between the facts involved in Steinhardt and those involved here. First, Steinhardt concerned a ground lease of the land actually underlying the condominiums. The court concluded that this land had virtually no economic value on the open market because it was subject to the condominiums above and therefore could not be developed. By contrast, in our case, the lease is a recreation lease of certain parking areas and the recreational facilities which include a golf course, a swimming pool, two clubhouses, boat slip facilities, a security gatehouse, and shuffleboard courts. These areas and facilities have an economic value on the open market. Second, in Steinhardt, the double escalation clause allowed only a rise in rents. In our case, the single escalation clause allows a downward adjustment so long as the rents do not fall below the base rate established at the inception of the lease. Finally, in Steinhardt, the developer’s salespersons urged the buyers not to obtain independent legal representation and led them to believe that legal counsel would be provided. By contrast, in our case, there is no evidence suggesting that such a manifestly deceptive practice occurred. Because of these differences, we believe that the trial court’s ruling in this case is not inconsistent with Steinhardt.

Accordingly, the judgment is affirmed.

DELL, J., and SHARP, G. KENDALL, Associate Judge, concur.

NOTE: DELL, J., did not participate in oral argument but has reviewed the recorded presentation made at that proceeding.

      . The 1967 merger of Florida’s law and equity procedures has given rise to difficult questions concerning the constitutional right to a jury trial. See Padgett v. First Federal Savings & Loan Ass’n, 378 So.2d 58, 64 (Fla. 1st DCA 1979); see also Dobbs, Remedies § 2.6 at 68-82 (1973 West); Oakes, The Right to Strike the Jury Trial Demand in Complex Litigation, 34 U.Miami L.Rev, 243 (1979-80); Note, Merger of Law and Equity in Florida — Problems and Proposals, 20 U.Fla.L.R. 173, 191-198 (1967-68).

      . The Seventh Amendment provides:
      In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

      . The federal test has also been phrased as follows: “the “legal” nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries.” Ross v. Bernhard, 396 U.S. 531, 538 n. 10, 90 S.Ct. 733, 738 n. 10, 24 L.Ed.2d 729, 736 n. 10 (1970).

      . We note the appellants’ characterization of their claim for “damages”: “It is fully within the province and the ability of the jury to determine how much the defendants profited from their breach of fiduciary duty to the plaintiffs, and award damages in that amount.” (Reply brief 20). In a hearing before the trial court, the appellants characterized their claim as follows: “We know exactly to the penny, what dollars have been received by the Defendants as a result of their alleged act of self-dealing. The only questions here, is number one; whether it was a breach of that duty. And number two; the extent the jury will require those monies to be returned.” (R. 16).

      . See also Commodore Plaza at Century 21 Condominium Ass’n v. Cohen, 350 So.2d 502, 507 (Fla. 3d DCA 1977), cert. denied and appeal dismissed, 362 So.2d 1051 (1978).

      . Of course, the trial court always has discretion to submit a factual question in an equity case to a jury. See Berg v. New York Life Insurance Co., 88 So.2d 915 (Fla.1956); see also Allstate Insurance Co. v. Vanater, 297 So.2d 293, 296 (Fla.1974).


author: SCHEB, Acting Chief Judge.

text:
    CASTLE CONSTRUCTION COMPANY d/b/a Alabama Castle Construction Company, Inc., Appellant, v. HUTTIG SASH & DOOR COMPANY, Longardner & Associates of Florida, Inc., Fort Myers Roofing Company, and J. Foster Pate, Appellees.
    No. 81-2488.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 21, 1983.

      Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    Dwight A. Whigham of Bigelow & Win-esett, Fort Myers, for appellees Fort Myers Roofing Co. and J. Foster Pate.
   SCHEB, Acting Chief Judge.

Appellant Castle Construction Company contends the trial court erred in (1) denying its third-party claim for indemnity while still holding it responsible for the damages resulting from the negligence of its subcontractor, Fort Myers Roofing Company, and (2) entering a partial summary judgment limiting the liability of J. Foster Pate as personal guarantor of its subcontractor’s performance. We agree with appellant’s first contention; we reject the second.

Castle, a general contractor, constructed a building for Huttig Sash & Door Company. It subcontracted the roofing to Fort Myers Roofing Company. After construction was completed in the latter part of 1974, the roof started leaking. In November 1978 Huttig, the owner, sued Castle to recover damages. In January 1979 Castle joined Fort Myers Roofing and Pate, guarantor of the subcontractor’s performance, as third-party defendants. Castle sought indemnity against its roofing subcontractor alleging that Fort Myers Roofing was solely responsible for the negligent construction of the roof.

The trial court entered judgment against Castle for $255,791.28 for the damages Hut-tig would incur in replacing the roof, but denied Castle’s claim for indemnity against the third-party defendants. Prior to denying Castle’s claim for indemnity, the trial court, by partial summary judgment, had limited Castle’s recovery against the guarantor to $88,400. This appeal ensued.

In denying Castle’s claim for indemnity, the trial court did not articulate any reasons for its decision. Although Fort Myers Roofing and Pate asserted several affirmative defenses in the trial court, on appeal the parties have focused their arguments principally on whether the statute of limitations barred Castle’s action for indemnity. We perceive this to be the only issue which merits discussion on the right to indemnity.

Castle argues that the statute of limitations for its indemnity action could not commence until its liability had been determined. Fort Myers Roofing and Pate, on the other hand, argue that the defect in the roof was not latent and, therefore, the statute of limitations began running when construction was completed in the latter part of 1974. They concede that the evidence did not establish that the four-year limit in section 95.11(3)(c), Florida Statutes, had run prior to Huttig’s suit against Castle. Yet, they contend that the four years ended in 1978, thus barring any claim by Castle for indemnity since Castle did not file its third-party action until January 1979.

The right of indemnity is based on principles of equity and inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the latter. Indemnity is allowed only where the indemnitor is solely at fault. It thereby shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious or constructive liability, to another who should bear the costs because it was the latter’s wrongdoing. Houdaille Industries, Inc. v. Ed wards, 374 So.2d 490 (Fla.1979). The statute of limitations for an action seeking indemnity does not begin running until the litigation against the third-party plaintiff has ended or the liability, if any, has been settled or discharged by payment. Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla.2d DCA), cert. denied, 234 So.2d 122 (Fla.1969); Employers’ Fire Insurance Co. v. Continental Insurance Co., 326 So.2d 177 (Fla.1976).

Castle’s third-party action against Fort Myers Roofing and Pate was filed prior to Huttig obtaining judgment against Castle. Since the litigation against Castle had not ended and there was no discharge or payment of any liability, Castle’s claim for indemnity could not be barred by the statute of limitations. Therefore, Castle is entitled to indemnity if it was without fault.

Fort Myers Roofing and Pate suggest alternatively that the trial court’s ruling may be upheld on any of the theories advanced by other affirmative defenses they asserted in an amended pleading. However, we have reviewed these arguments and find no merit to them.

As noted, Castle also challenges entry of the partial summary judgment in favor of Pate. Castle’s contract with Fort Myers Roofing originally required its subcontractor to post a performance and payment surety bond in the penal sum of $88,-400. Subsequently, Castle agreed to accept Pate’s personal guaranty in lieu of the surety bond. Pate delivered his personal guaranty in which he referred to the principal contract. The trial court construed the guaranty as having been accepted in lieu of the surety bond and subject to the same penal liability although on its face it appeared unlimited. There was no indication in the documents that Castle sought any greater security from Pate, or that Pate intended to give greater security than called for by the contract. It was appropriate for the court to construe the contract and guaranty together. Collins v. National Fire Insurance Co., 105 So.2d 190 (Fla. 2d DCA 1958).

Where, as here, the determination of a party’s liability depends on the written instruments of the parties and their legal effect, the question becomes one of law only and is determinable by summary judgment. Rochan v. American Fire and Casualty Co., 200 So.2d 213 (Fla. 2d DCA), cert. denied, 204 So.2d 329 (Fla.1967). Therefore, we see no error in the court’s judgment limiting Pate’s potential liability to $88,400.

Accordingly, we affirm the partial summary judgment entered in favor of Pate, but reverse the amended final judgment to the extent that it denied Castle’s claim for indemnity against the third-party defendants. We remand for further proceedings consistent with this opinion.

CAMPBELL and SCHOONOVER, JJ., concur.


text:
    David VETTER, Appellant, v. STATE of Florida, Appellee.
    No. 82-1498.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 21, 1983.

      Richard G. Pippinger of Cohen, Pippinger & Shibley, Tampa, for appellant.
   SCHEB, Acting Chief Judge.

We have for review the trial court’s summary denial of David Vetter’s motion for postconviction relief.

Vetter pled guilty to manslaughter and leaving the scene of an accident. In exchange for his plea, the state agreed to stand silent at his sentencing. He was convicted and on May 28, 1981, sentenced to consecutive prison terms of fifteen years and one year respectively.

In his motion for postconviction relief, Vetter acknowledged the state stood silent at his sentencing. Yet, he contended that he was denied due process of law because the assistant state attorney unofficially made some damaging comments to the probation officer who prepared the presentence investigation report (PSI). The prosecutor’s actions, he argued, indirectly violated the state’s agreement to stand silent and improperly influenced the court.

Subsequent to the imposition of sentence, on July 23, 1981, the same trial judge who sentenced Vetter heard his motion to modify or reduce his sentence. At that hearing, the court observed that there had not been a plea bargain in the traditional sense. The court noted the comments attributed to the assistant state attorney were included in the PSI but stated they had no effect on the court’s decision to impose the sentence. He denied Vetter’s motion, whereupon Vet-ter filed the instant motion under Florida Rule of Criminal Procedure 3.850 seeking to vacate his sentence. The trial court summarily denied his motion and this appeal ensued.

We have examined the PSI. The confidential portion of it reflects that the assistant state attorney told the probation officer who prepared the report that it was his unofficial position that what Vetter did was “murder” and that he ought to “hang” for it. That record was before the court at time of sentencing. We have full confidence in the trial court and its impartiality and note the trial judge’s comment that such statements had no bearing on the sentence he imposed. Yet, we cannot sanction the state taking a covert position hostile to a defendant who has acted on direct representations of the state’s neutrality in a sentencing procedure.

Irrespective of whether there was a plea bargain in the traditional sense, the state was bound by its representations to remain silent at Vetter’s sentencing. Here, the state did not violate its obligation directly, but it did so indirectly when the prosecutor conveyed his unofficial position to the trial court by making damaging statements to the probation officer who prepared the PSI. See Wood v. State, 357 So.2d 1060 (Fla. 1st DCA 1978).

Accordingly, we vacate Vetter’s sentence. We direct the chief judge of the Thirteenth Judicial Circuit to cause the prejudicial remarks in the PSI to be excised and thereafter to assign this case to a judge other than the judge who imposed the sentences for resentencing. Of course, the sentencing judge must comply with Florida Rule of Criminal Procedure 3.700, and Vet-ter shall be allowed to be present at the resentencing.

CAMPBELL and SCHOONOVER, JJ., concur.

      . Ordinarily, we would remand this cause for an evidentiary hearing as contemplated by Rule 9.140(g). We have not since the critical facts relied on by this court were already documented by the record in prior adversarial evidentia-ry hearings.


author: WENTWORTH, Judge.

text:
    Harold GREENBAUM and Rose Greenbaum, Appellants, v. In the Interest of D.G., Appellee.
    No. AK-448.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1982.
    Rehearing Denied Feb. 2, 1983.
    Jonathan F. Wershow and Pamela A. Schneider, Gainesville, for appellants.
    C. Valentine Bates, Bates & Costello, Gainesville, for appellee.
   WENTWORTH, Judge.

Appellants seek review of an order by which their minor child was permanently committed to the Department of Health and Rehabilitative Services for subsequent adoption. Appellants have asserted several points of error which we find to be without merit. Relying on Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), appellants also allege that due process of law requires stricter standard of proof than that mandated by § 39.408(1)(b), Florida Statutes, and In the Interest of C.M.H., 413 So.2d 418 (Fla. 1st DCA 1982). However, this argument was not presented in the trial court and we therefore decline to consider the issue on appeal.

Accordingly, the order appealed is affirmed.

McCORD and BOOTH, JJ., concur.


text:
    STORY BUILT HOMES, INC., Appellant, v. Walter J. ARCHER and Janina E. Archer, his wife, Appellees.
    No. 82-55.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1982.
    Rehearing Denied Feb. 9, 1983.
    J. Patrick Floyd of Peschio, Roekwood, Edelstein & Duffy, Fort Lauderdale, for appellant.
    Gerald M. Morris of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for ap-pellees.
   PER CURIAM.

This is an appeal solely on the question of attorneys’ fees in a mortgage foreclosure case. We conclude that the record before this court is not sufficient upon which to base any conclusion of reversible error. The deficiencies in the record have been brought to the attention of counsel, and the order on attorneys’ fees below is hereby affirmed.

AFFIRMED.

LETTS, C.J., and BERANEK, and HERSEY, JJ., concur.


author: HERSEY, Judge. PER CURIAM.

text:
    FORT LAUDERDALE BOARD OF ADJUSTMENT and City of Fort Lauderdale, Petitioners, v. Charles E. NASH, III, Respondent.
    No. 82-1511.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1982.
    Rehearing Denied Feb. 16, 1983.
    Donald R. Hall, City Atty. and T.J. Ans-bro, Jr., Asst. City Atty., Fort Lauderdale, for petitioners.
    Arthur M. Wolff of Wolff & Gora, P.A., Fort Lauderdale, for respondent.
   HERSEY, Judge.

By petition for writ of certiorari petitioner seeks review of a circuit court order reversing the denial by the Fort Lauderdale Board of Adjustment of respondent’s application for a zoning variance.

Respondent Nash owns property in Fort Lauderdale which contains both a single family residence and a structure variously referred to as a tiki hut or patio bar. Because this structure encroached upon the rear and side yard setback lines imposed by the city zoning ordinances, Nash applied unsuccessfully for a variance. Thereafter he filed a petition for a writ of certiorari in the circuit court which reversed the action of the Board of Adjustment. No findings, conclusions of law, or reasons were set out in the final judgment entered by the court.

When the circuit court is petitioned for certiorari to review agency action its scope of review is limited to a determination, based on the agency record, as to whether the agency afforded procedural due process, whether the essential requirements of the law were complied with, and whether substantial competent evidence supports the final agency action.

Our review on certiorari from the circuit court is in the nature of a second review and as such is limited to consideration of the first and second elements only. See City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982); Cherokee Crushed Stone v. City of Miramar, 421 So.2d 684 (Fla. 4th DCA 1982).

In the circuit court Nash argued that because other violations of the setback lines existed with impunity, enforcement against him constituted a hardship, and, alternatively, that the tiki hut or patio bar was a structure, not a “building” as that term is defined in the ordinances, and the setbacks therefore do not apply. We must assume that the circuit court based its judgment on one or both of these theories. Both however are fatally flawed.

Certain conditions must be met in order to qualify for a variance on the grounds of hardship.

An “exceptional and unique hardship to the individual landowner, unique to that parcel of property and not shared by property owners in the area, is an essential prerequisite to the granting of a ‘hardship’ zoning variance.” City of Miami v. Franklin Leslie, Inc., Fla.App.1965, 179 So.2d 622, 624. See also Elwyn v. City of Miami, Fla.App.1959, 113 So.2d 849.

Crossroads Lounge, Inc. v. City of Miami, 195 So.2d 232, 234 (Fla. 3d DCA 1967), (emphasis added); City of Naples v. Clam Court Marina Trust, 413 So.2d 475, 477 (Fla. 2d DCA 1982); Town of Indialantic v. Nance, 400 So.2d 37 (Fla. 5th DCA 1981). On this record Nash has not established a hardship entitling him to a variance from the zoning requirements.

Petitioner’s second position presents somewhat of an anomaly. Although he initiated proceedings for a variance, he now maintains that the patio bar is a structure, not a building, and thus no variance is required because the setback requirements do not apply to structures. This sequence of propositions suffers from an obvious gap in logic. One cannot simultaneously seek a variance while asserting that a variance is unnecessary.

We need not rely on abstractions here as there is a procedural basis for our decision as well. The argument that no violation existed was not made to the Board of Adjustment. The circuit court, on cer-tiorari review, was limited in its examination to the record of proceedings before the board. Thus, the court acted inappropriately by basing its reversal on a theory espoused for the first time in the petition for review. In our view the questions of whether or not the patio bar is a structure rather than a building and whether the setback requirements apply to structures, have never properly been placed in issue in these proceedings. Those determinations are thus precluded in this forum.

We conclude that the circuit court departed from the essential requirements of the law in reversing the action of the Board of Adjustment and therefore grant the petition for writ of certiorari quashing the final judgment.

CERTIORARI GRANTED; JUDGMENT QUASHED.

LETTS, C.J., and DOWNEY, J., concur.

ON MOTION FOR REHEARING OR CLARIFICATION

PER CURIAM.

This Court’s opinion does not have the effect of precluding subsequent litigation in the appropriate forum of the issue of whether a violation of the City’s set back requirements in fact exists. Accordingly, the Motion for Rehearing or Clarification is denied.

LETTS, C.J., and DOWNEY and HERSEY, JJ., concur.


author: COBB, Judge.

text:
    TPM CONSTRUCTORS, INC., Appellant, v. TWIN COAST TITLE, INC., a Florida corporation, Appellee.
    No. 82-679.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 26, 1983.
    Stephen B. Rakusin of Stephen B. Raku-sin, P.A., Gainesville, for appellant.
    John J. Fogarty of Sam E. Murrell & Sons, Orlando, for appellee.
   COBB, Judge.

On December 16, 1981, Twin Coast Title, Inc. (Twin Coast) filed a complaint against TPM Constructors, Inc. (TPM), alleging breach of contract. On February 8, 1982, the Clerk of the Court entered a default pursuant to Twin Coast’s motion for default based on TPM’s failure to timely answer or serve any pleadings. On February 17,1982, the lower court, upon motion, then entered a default judgment in favor of Twin Coast. The court denied, without explanation, TPM’s motion to vacate the default judgment filed on March 15, 1982, and TPM appealed therefrom. The issue in this case is whether the trial court erred by denying TPM’s motion to vacate the default judgment. For the reasons stated below, we reverse and remand for reconsideration of the motion.

A trial court may properly grant a motion to vacate a default judgment where the movant establishes (1) a meritorious defense, and (2) a legal excuse for failure to comply with the rules. The absence of either of these elements precludes the setting aside of a default judgment. B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980). TPM offered evidence of these requisites to the trial court through affidavits, an answer and affirmative defenses. In its written response to the motion to vacate and during the hearing, Twin Coast argued that TPM’s motion was insufficient as a matter of law because the motion failed to contain an offer to go to trial at once on the material issues. Appellant points out, and Twin Coast concedes in its brief, that a party moving to vacate a default judgment is no longer required to offer to go to trial immediately. This requirement is obsolete because of the present method of setting actions for trial. Fla.R.Civ.Pr. 1.440 (1980); Trawick Florida Practice & Procedure § 25-3 (1981 ed.).

A showing of gross abuse of discretion is necessary on appeal to justify reversal of a lower court’s ruling on a motion to vacate a default judgment. Sterling Drugs Inc. v. Wright, 342 So.2d 503 (Fla.1977). Here, the order denying the motion to vacate the default judgment is devoid of explanation. Hence, we cannot determine whether the lower court exercised its broad discretion or simply felt obligated to deny TPM’s motion based on Twin Coast’s misstatement of the current law. Therefore, we reverse ánd remand for reconsideration of the motion to vacate the default judgment without reference to TPM’s failure to allege its readiness to go to trial.

REVERSED and REMANDED with instructions.

SHARP, J., and SMITH, C. McFERRIN, III, Associate Judge, concur.

      . The parties had entered into a contract under which Twin Coast was to install resilient flooring and acoustic ceilings in a construction project on which TPM was the general contractor.

      . This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). An order denying a motion to vacate a default judgment is an appealable order under this rule as an order determining liability in favor of a party seeking affirmative relief. Doctors Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla.1982).

      . During the hearing on the motion to vacate, the following exchange took place:
      TWIN COAST’S COUNSEL: One of the things off the bat that we observed about the motion is that it’s insufficient as a matter of law because they failed to offer to go to trial at once on the material issues and I cited three cases to that proposition. That is an essential requirement of the motion in order for it to be a viable motion.
      THE COURT: The cases say that or the rule?
      TWIN COAST’S COUNSEL: Yes, sir. Both.
      Later in the hearing, the court voiced concern over whether TPM was required to allege it was ready to go to trial and Twin Coast re-emphasized its point.