author: COBB, Judge. COWART, Judge,

text:
    AMERICAN MOTORS CORPORATION, Appellant/Cross-Appellee, v. William Howard ELLIS, Jr., and William J. St. John, Appellees/Cross-Appellants.
    Nos. 80-767, 80-770, 80-1025 and 80-1026.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 15, 1981.

      James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, and Sanders, McEwan, Mims & McDonald, Orlando, for appellant/cross-appellee.
    David B. King of Peed & King, P. A., Orlando, for appellees/cross-appellants.
   COBB, Judge.

American Motors Corporation (AMC), defendant below, appeals from judgments in favor of plaintiffs Ellis and St. John, entered pursuant to jury verdicts. Ellis and St. John have cross-appealed from a directed verdict in favor of AMC on the issue of punitive damages and on various evidentia-ry rulings made during trial.

On December 10, 1976, Ellis was driving his father’s 1974 AMC Ambassador east in the righthand lane of Interstate Highway 4 in Orange County with St. John as a passenger in the front seat. As they came over a hill, Ellis noticed traffic congestion ahead where an entrance ramp merged into the right lane of 1-4. Since he planned to exit shortly, Ellis stopped his vehicle in the righthand lane rather than attempting to pass the congestion. At about this time, Gerald Rausch was driving his vehicle on the entrance ramp to 1-4. When he saw the traffic congestion, Rausch attempted to by-pass it, cutting directly onto 1-4 behind the Ambassador. As he moved a few feet onto 1-4, he saw a tractor-trailer coming over the hill toward him. Rausch then veered back into the entrance lane, which at that point ran parallel to the right lane of 1-4.

John McGuirt, the driver of the tractor-trailer, which was loaded and weighed about 74,000 pounds, was travelling in the right lane of 1=4. As he started down the hill at an estimated speed of 45 to 50 miles per hour, he noticed the traffic congestion ahead and saw Rausch’s vehicle heading into the right lane. McGuirt tried to move into the left lane but could not as another vehicle was there. When McGuirt looked back to the road in front of him, he saw that he had passed Rausch’s car, but that the Ambassador was directly ahead “sitting in the road.” McGuirt applied his brakes and turned sharply to the left. As he was turning, the right front portion of the tractor collided with the left rear of the Ambassador, crushing the rear four-and-one-half feet of the car and propelling it forward for more than one hundred feet. The tractor-trailer continued to veer off to the left, collided with the median barrier and rolled over on its side.

The tractor was fueled by two one-hundred-gallon diesel saddle tanks connected by a fuel line running from one to the other. Each tank was about half full. At some point during the accident, the right tank separated from the tractor-trailer, allowing diesel fuel to escape. After the Ambassador came to rest, a fire started, consuming the vehicle and causing severe burns to Ellis and St. John. The exact point at which the tank separated and whether the fire was caused by the diesel fuel or the gasoline from the ruptured fuel lines of the Ambassador were points in dispute at trial.

’ Ellis and St. John filed suits against McGuirt and his insurer, and Rausch, his employer and his insurer. Claims against these defendants were later settled. An amended complaint then was filed naming AMC as a defendant. The claims against AMC were based on negligence and strict liability stemming from an allegedly defective design of the Ambassador’s gasoline tank and filler system. The asserted defect was that the gasoline tank and filler system were located beneath the trunk floor at the rear of the car, rather than in an upright position in the “kick-up area,” which is the space above the rear axle and beneath the package shelf just behind the rear seat. A claim for breach of warranty was voluntarily dismissed at the outset of trial, and a directed verdict was entered in favor of AMC on the plaintiffs’ claim for punitive damages.

AMC relied on several theories of defense. It contended the kick-up area was not a preferable location for a gas tank, that AMC’s fuel system did not leak as a result of the impact, and that the fire was started as the result of spillage of diesel fuel from the tractor-trailer onto the car, which had caused the gasoline still contained within the tank to ignite. AMC also contended that if there were gasoline leakage, it was the result of a tremendous impact which no reasonably designed fuel system could be expected to withstand.

The first issue appellant raises is whether the trial court’s error in refusing to compel disclosure to adverse counsel of a witness statement used by counsel for plaintiffs for cross-examination impeachment constitutes reversible error. We believe that it does under the instant facts. Linda Bates, an eye-witness to the accident, had been listed by the plaintiffs as a potential witness. However, at trial, she was called by AMC and testified that she saw flames on the left side of the crushed vehicle. This testimony lent support to AMC’s assertion that the fire was due to spilled diesel fuel from the tractor-trailer. On cross-examination, plaintiffs’ counsel attempted to impeach her with a pre-trial statement made to an investigator in the office of plaintiffs’ counsel. This statement, which apparently was to the effect that the flames were on the right side of the vehicle, had been protected from discovery by court order under the “work product” doctrine. Counsel for AMC asked to examine the statement; this request was denied by the trial court.

In Dodson v. Persell, 390 So.2d 704 (Fla.1980), the Florida Supreme Court held that the contents of surveillance films and materials are subject to discovery in every instance where they are intended to be presented at trial, either for substantive, corroborative, or impeachment purposes. In other words, if the materials are only to aid counsel in trying the case, they are “work product,” but any “work product” privilege that existed ceases once the materials or testimony are intended for trial use.

Thus, even assuming that the witness’ statement was privileged under the work-produet doctrine, the privilege ceased once the statement was used as impeachment evidence. As counsel for AMC had not seen the document and was taken by surprise, he should have been given an opportunity to review it, during a trial recess if necessary. See Dodson at 708. This opportunity to examine the statement was necessary as counsel is entitled to read relevant portions of the statement to explain the apparent inconsistency in the witness’ testimony at trial. Hernandez v. State, 156 Fla. 356, 22 So.2d 781 (1945); Brown v. State, 152 Fla. 698, 13 So.2d 3 (1943). See also King v. Califano, 183 So.2d 719 (Fla. 1st DCA 1966).

The testimony of the witness Bates, called by AMC, related to a crucially important aspect of AMC’s defense: that the fire was caused by spillage of diesel fuel rather than by gasoline.

It was clear error, under the circumstances of this case, for the trial judge to refuse to require plaintiffs’ attorney to produce the statement of Bates at trial, regardless of whether it was properly immune from pre-trial discovery as work product. Once the statement was disclosed by plaintiffs’ attorney in open court, identified by the witness, and used to impeach her, any prior work product immunity terminated.

In United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), the court held that in a criminal case the defense attorney was properly required to produce at trial a statement taken by a defense investigator when that statement had already been used to impeach the prosecution witnesses and where the defense counsel announced his intention of calling his investigator to the stand. The work-product privilege was held to have been waived because the defendant could not “advance the work-product doctrine to sustain a unilateral testimonial use of work-product materials. . . . ” Nobles, 422 U.S. at 240, 95 S.Ct. at 2171, 45 L.Ed.2d at 154. The same general principle is recognized under Florida’s view of the work-product privilege.

Under the holding of Dodson, it is highly doubtful whether a pre-trial work-product privilege attached to the statement taken from Bates, since the plaintiffs apparently intended to use it at trial for impeachment. That question need not be addressed, however, because it is abundantly clear that if ever there were a valid privilege, it terminated as soon as the statement was actually used at trial for impeachment. At that time, AMC’s counsel was unquestionably entitled to have the entire statement produced for his inspection, for his use in redirect examination of Bates, and for possible introduction into evidence.

Under Florida law, where one party reads selected and prejudicial portions of the other party’s deposition for impeachment, it is error to prohibit opposing counsel from reading other portions of the same deposition in an effort to demonstrate “that the ‘whole truth’ was that the defendant’s trial testimony should not be discredited on account of her testimony at the deposition hearing.” King v. Califano. The above rule applies with equal force to statements of a witness other than those contained in depositions. For example, see 98 C.J.S. Witnesses § 622 (1957), stating that:

Where, for impeachment purposes, a portion of a statement previously made by a witness and apparently inconsistent with his present testimony is introduced, the entire statement is admissible in rebuttal.

To similar effect is 98 C.J.S. Witnesses § 422 (1957), stating that where a witness has been cross-examined as to part of a statement, the party calling the witness is entitled on redirect examination to elicit the whole of the statement to the extent that it relates to the same subject matter and concerns the specific matter opened up on cross-examination.

In the instant case, AMC’s trial counsel was deprived of an opportunity to conduct a full and fair redirect examination of the witness by using other relevant portions of her pre-trial statement in an effort to demonstrate that her trial testimony should not be discredited. Since plaintiffs’ counsel had used the statement in open court and the witness had examined it during her testimony, it was clear error not to require production of the statement to AMC’s counsel at that time. The error was prejudicial because it related to the credibility of an eye-witness on a crucial fact issue as to the origin of the fire. In fact, prejudice is inherent in the ruling, because it precluded both AMC’s counsel and the trial and appellate courts from knowing the contents of the statement. Cf. Cason v. Smith, 365 So.2d 1042 (Fla. 3d DCA 1978); Musachia v. Terry, 140 So.2d 605 (Fla. 3d DCA 1962).

Counsel for the plaintiffs urges that this error was not properly preserved for appellate review because the defendant did not proffer the statement at trial. This is specious because it is clear that the ruling of the trial court prohibited such a proffer. Defense counsel was not allowed to even see the statement; how, then, could it have been proffered?

AMC also argues that it was error for the trial court to admit, over its objections, evidence of crash testing and resulting design changes in AMC’s fuel filler systems, subsequent to the manufacture and sale of the 1974 Ambassador. The plaintiffs offered into evidence the results of automobile crash tests conducted by AMC from 1966-1975. Over AMC’s objections, the trial judge ruled that he would not allow the crash test results for the purpose of showing a similarity to the accident in this case, but that he would admit the evidence for the purpose of showing subsequently-acquired knowledge which might impose a duty to warn, and for the purpose of showing feasible design alternatives. Pursuant to this ruling, the court admitted documentary evidence of six crash tests conducted on similar types of AMC vehicles. Only one such test (test 490), a thirty-mile-per-hour rear-end fixed-barrier crash test on January 12, 1971, was conducted prior to the sale of the 1974 Ambassador in question, which was purchased by Mr. Ellis on March 20, 1974. The other tests were after the sale and before the accident. These tests were carried on by AMC for purposes of determining whether its cars would be able to meet various proposed federal government requirements for fuel system integrity under controlled crash conditions, and to determine what modifications needed to be made to meet these requirements.

The trial court also admitted evidence of changes to the fuel filler system in AMC’s 1977 models, consisting of modification of the unitized body structure through which the filler neck was routed, the lengthening of a rubber hose connection, and the addition of a “break-away” feature where the filler neck attaches to the body panel. These changes were designed as a result of information obtained from AMC’s crash-testing program, and were adopted so that AMC’s cars would comply with federal regulations that fuel systems be able to withstand a thirty-mile-per-hour moving-barrier test.

AMC submits that harmful error was committed in admitting the evidence of crash testing, particularly since all but one of the tests were conducted after the manufacture and sale of the 1974 Ambassador in question. The trial judge ruled that the tests were not admissible for the purposes of simulating the collision in this case. Morton v. Hardwick Stove Co., 138 So.2d 807 (Fla. 2d DCA 1961), cert. denied, 149 So.2d 48 (Fla.1962).

As previously indicated, the tests and 1977 design changes were admitted by the trial court on two bases. We consider that the trial court’s ruling cannot be supported on the basis that subsequently acquired knowledge may have imposed a duty to warn, and this point will be amplified in our discussion hereinafter of the third point raised by appellant. We, therefore, focus on the propriety of the trial court’s admission of the evidence (of testing and design changes) for the purpose of showing design alternatives.

The basic rule, of course, is that evidence of repairs or improvements to premises made after injury is not admissible to show the culpability of a defendant. Seaboard Air Line Ry. Co. v. Parks, 89 Fla. 405, 104 So. 587 (1925). As the court said in Parks:

The effect of declaring such evidence competent is to inform a defendant that if he makes changes or repairs he does it under penalty; for, if the evidence is competent, it operates as a confession that he was guilty of a prior wrong. . . True policy and sound reason require that men should be required to improve, or repair, and not to be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers. A rule which so operates as to deter men from profiting by experience, and availing themselves of new information has nothing to commend it, for it is neither expedient nor just.

104 So. at 588-589. See also City of Miami Beach v. Wolfe, 83 So.2d 774 (Fla.1955).

Where an allegedly defective product is involved, and the improvement (or test) is subsequent to manufacture but prior to injury, the problem is more complex. The plaintiffs argue that since the tests and modifications occurred prior to the accident, the basic exclusionary rule in regard to repairs or improvements is inapplicable. See Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978). They also contend that the rule has no application in cases involving the doctrine of strict liability. See, e. g., Caprara v. Chrysler Corp., 52 N.Y.2d 114, 436 N.Y.S.2d 251, 417 N.E.2d 545 (N.Y.1981).

Similar arguments were rejected in Ellis v. Golconda Corp., 352 So.2d 1221 (Fla. 1st DCA 1977), cert. denied sub nom., Peterson v. McKensie Tank Lines, Inc., 365 So.2d 714 (Fla.1978), which involved an improved valve manufactured after the allegedly defective valve but prior to the accident and injury. In holding such evidence inadmissible, the First District stated:

At minimum, plaintiff, in a product liability case involving long passage of time between manufacture and injury, is required to produce evidence that the product was defective when it left defendant’s hands. Strict liability in tort does not connote liability without fault. That the manufacturer subsequently improved the product it placed in commerce with new materials and technology is not an evidentiary fact ipso facto [from which] to infer negligence in the manufacture of the original product. The trial court correctly held that McKenzie’s proffer of tests, designs and comparisons of the second Rego valve was not relevant to the issue and thus not admissible.

Id. at 1224.

In that ease, however, the court’s decision was predicated on the fact that the improved valve was based on technology not available when the allegedly defective valve was manufactured. Golconda at 1224. This is not true in the instant case. Indeed, in its appellate brief, AMC states that it “did not contest the plaintiffs’ contention that the design changes would have been technologically feasible at the time the 1974 models were produced.”

AMC argues, however, that since there was no controversy as to the earlier feasibility of the subsequent improvements, the feasibility exception to the exclusionary rule does not apply. In support of this argument, AMC relies on a recent federal case: Bauman v. Volkswagenwerk AG, 621 F.2d 230 (6th Cir. 1980). We do not understand this circuitous reasoning. At most, this argument would lead to the conclusion that the disputed evidence was cumulative in respect to a conceded point, and its admission, therefore, would be harmless error.

A reasonable and clear exposition of the law in respect to the feasibility exception to the repair doctrine, which we adopt with approval, was set forth by the Seventh Circuit Court of Appeal in Mahoney v. Roper-Wright Manufacturing Co., 490 F.2d 229, 232 (7th Cir. 1973):

In products liability cases, the law in Illinois for some time now has permitted the introduction of evidence which consists of alternate design feasibility or post-accident design changes. The evidence is admissible if the design alternative or design alteration was available at the time the defendant’s product was manufactured and sold. . . . The products liability cases cited above and pursued on a theory of strict liability all held that evidence of design alternatives and post-accident design changes is admissible to show what was feasible and what the defendant knew or should have known.

Although AMC argues that feasibility of proposed design alternatives was not an issue at trial, there was no explicit admission to the effect by AMC and it is foreclosed from that argument by reason of its successful request for a jury instruction which shows that feasibility of alternative designs was a controverted issue. That instruction was:

In determining the reasonableness of the design of a product, among the facts that you are to consider are conformity of the design to the practices of other manufacturers in the industry at the time of the accident. The extent of the buyer’s use of the products and a period of time involved in such use, the ability of the manufacturer to eliminate the danger by a feasible design alternative without impairing the product’s usefulness or making it unduly dangerous and the relative likelihood of injury resulting from the product’s actual design.

AMC also contends that the trial evidence failed to establish that the fuel system modifications in 1977 had any relevance, absent a relocation of the entire fuel tank to the kick-up area, to the particular injury in this case. In other words, given the tremendous impact between the 74,000-pound loaded truck and the rear of the Ambassador, the 1977 modifications resulting from prior AMC testing were unrelated to the fire which engulfed the car after impact; hence, evidence of such tests and such modifications was irrelevant and prejudicial.

This point, although a strong jury argument, fails to recognize that there was conflicting trial testimony relating to the origin of the fire, the leakage caused by the alleged defects, and the relationship between the defects and the damage to the car, which in turn related to speed of the vehicles and force of impact. These were jury issues.

Therefore, we hold that the trial court did not err, under the instant facts, in admitting evidence of the tests and design changes because of the feasibility exception to the exclusionary rule relating to subsequent repair.

The third point raised on appeal by AMC is that the trial court erred in instructing the jury as to negligence based on AMC’s failure to warn of the alleged defect in the 1974 automobile. This case does not involve an inherently dangerous product giving rise to a strict duty to warn. See Tampa Drug Co. v. Wait, 103 So.2d 603 (Fla.1958). It is difficult to perceive, given the nature of the defect contended by the plaintiffs, what the specific warning would have been that AMC was under a duty to convey. None was suggested to the trial court, and none has been suggested to this court. It is understandable from the instant record how AMC may have altered the design of the 1974 Ambassador to make it safer against fire resulting from rear impact, but no evidence was adduced below to show how any warning from AMC to the owner prior to December 10, 1976, could have prevented or ameliorated the injuries that occurred on that date to the plaintiffs in this case. Only if we were to engage in the speculation that the owner, properly warned, would not have purchased the car, or would not have allowed it to be driven on interstate highways, could we recognize a causal relationship between breach of a duty to warn and the instant injury. See Greiner v. Volkswagenwerk AG, 429 F.Supp. 495 (E.D.Pa.1977). Cf. Drackett Products Co. v. Blue, 152 So.2d 463 (Fla.1963).

The appellees’ reliance in this regard on Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978), is misplaced, because there it apparently was shown that “a design to correct (the latent defect) was both economically and structurally feasible” after manufacture and before injury. Such evidence was not adduced in the instant ease.

The fallacy of the warning argument in the instant case is that it begs the question. If there were a defect in the fuel system of the 1974 Ambassador that caused the injuries to plaintiffs, AMC is liable, irrespective of any warning; if there were not, there is no liability, irrespective of any failure to warn. Consequently, the warning issue, under these facts, is irrelevant. The trial court erred in denying AMC’s motion for a directed verdict on the failure to warn issue and in charging the jury on that issue.

We find appellant’s fourth and fifth points relating to the applicability of the strict liability theory to crashworthiness cases and the sufficiency of the evidence to be without merit. The sixth point is moot because of our reversal for a new trial based on appellant’s first issue.

By way of cross-appeal, plaintiffs Ellis and St. John challenge the trial court’s directed verdict against them on their claim for punitive damage.

Punitive damages are damages over and above such sum as will compensate a person for his actual loss. The purpose is to punish the wrongdoer and to deter him and others from such wrongdoing in the future. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). The wrongful act must be characterized by some circumstance of aggravation, such as wilfulness, recklessness, maliciousness, outrageous conduct, oppression or fraud. See, e. g., 17 Fla.Jur.2d Damages § 119 (1980).

Appellants contend that AMC acted with knowledge and reckless indifference to the rights and safety of others sufficient to support an award of punitive damages, and thus the trial court erred in granting AMC’s motion for directed verdict. A motion for directed verdict should not be granted when there is any reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party. Hartnett v. Fowler, 94 So.2d 724 (Fla.1957). In considering a motion for directed verdict for the defendant, the court is required to evaluate the testimony in the light most favorable to the plaintiff and every reasonable inference deduced from the evidence must be indulged in plaintiff’s favor. Id. at 725.

In the present case, there was evidence adduced from which the jury could have found that AMC was aware of the catastrophic results of fuel tank fires in its vehicles from its own crash tests, and that AMC chose not to implement the recommendation of its engineers to relocate the fuel tank in order to maximize profits. The jury also could reasonably believe that unless and until compelled to do so by the federal government, AMC failed to conduct further crash tests or experiments to determine feasible alternatives despite its knowledge that its present design could not survive crash tests at relatively low speeds.

In a similar products liability case involving the fuel tank rupture of a Ford Mustang, the Supreme Court of Wisconsin held that punitive damages were recoverable in an action based on either strict liability in tort or on negligence. Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980). The court recognized that punitive damages were not appropriate in every products liability case, but where the plaintiff is able to show that the manufacturer knew that its product was defectively designed and that injuries and deaths had resulted from the design defect, but continued to market the product in reckless disregard of the public safety, punitive damages could be awarded. Id. 294 N.W.2d at 444.

The court in Wangen determined that the facts pleaded in the complaint and reasonable inferences therefrom were sufficient to state a claim for punitive damages. The complaint alleged that Ford knew of the defects in the design of the gas tank and filler neck and in the lack of a barrier between the gas tank and passenger compartment in the 1967 Mustang, and of the fire hazard associated with the design, because of tests run by Ford as early as 1964; that for years before this accident Ford knew that these defects were causing serious burn injuries to occupants of these and similar cars; that years before the accident involved in that case, Ford knew how to correct these defects in ways that would have prevented the plaintiff’s burns, but Ford intentionally concealed this knowledge from the public; that despite this knowledge, Ford deliberately chose not to recall its 1967 Mustangs and not to disclose the defects to the public by the issuance of warnings because Ford wanted to avoid paying the costs of recall and repair and in order to avoid the accompanying bad publicity; and that Ford’s conduct was intentional, reckless, wilful, wanton, gross and fraudulent.

Punitive damages have been allowed in cases involving products other than automobiles. For example, in Atlas Prop. Inc. v. Didich, 213 So.2d 278 (Fla. 3d DCA 1968), cert. dismissed, 226 So.2d 684 (Fla.1969), the evidence showed the defendant had been warned of the danger of failing to cover the swimming pool drain; that defendant chose to save money rather than correct a known dangerous condition; and that the defendant failed to warn its tenants of the dangerous condition.

As the foregoing cases illustrate, punitive damages have been allowed where the defendant had knowledge of a defect or dangerous condition and chose not to remedy the condition. While there was abundant evidence adduced at trial below that AMC simply made a valid business decision to retain the rear-end fuel tank location, such evidence does not totally negate the reasonable inference from plaintiffs’ evidence that AMC was aware that the fuel tank in its 1974 Ambassador was defective and dangerous, but chose not to seek safer alternative designs. In view of this inference, the trial court erred in directing a verdict in favor of AMC and a new trial on punitive damages is mandated.

The cross-appellants (plaintiffs) also contend that the trial court abused its discretion in refusing to admit into evidence crash test 508 and the results of all sequential testing in which the rear-end crash tests followed front-end crash tests on the same vehicle. The crash tests were excluded on the ground that they failed to simulate the collision in this particular case.

Testing conditions in an experiment must be substantially the same as those at the time of the occurrence for evidence of the experiment to be admitted. Morton v. Hardwick Stove Co., 138 So.2d 807 (Fla. 2d DCA 1961), cert. denied, 149 So.2d 48 (Fla.1962). Crash test 508 was designed to evaluate the feasibility of complying with proposed federal regulations by installing the fuel tank in the “kick-up” area and by installing the spare tire in the area previously used for the fuel tank. The vehicle involved apparently did not have a fuel filler system as did the Ambassador involved in this case. The vehicles involved in sequential testing suffered multiple impacts with the rear-end collisions following the front-end collisions. As both sets of experiments involved significant changes, the trial court did not abuse its discretion in excluding this evidence.

The trial court admitted into evidence AMC’s Exhibit No. 6, a study prepared for the United States Department of Transportation entitled National Crash Severity Study Statistics. The plaintiffs objected to the admission of the study on the grounds that it was hearsay, that AMC failed to authenticate the report and that the report lacked relevancy. The report is admissible under the public record exception to the hearsay rule. See Bell v. Kendrick, 25 Fla. 778, 6 So. 868 (1889). The plaintiffs have conceded that the study was a government report, and thus the lack of proper authentication was harmless error. The study also appears to be relevant. Throughout the trial, AMC argued that the only alternative to the fuel system design in the 1974 Ambassador was to relocate the fuel tank in the “kick-up” area. AMC, however, claimed that this design increased the risk to the passengers from side collisions. The study contains information concerning areas of damage to the automobile which would tend to support AMC’s position. It was properly admitted by the trial court.

Accordingly, this cause is reversed and remanded for new trial consistent with this opinion.

REVERSED and REMANDED.

ORFINGER, J., concurs.

COWART, J., concurs in part, dissents in part, with opinion.

COWART, Judge,

concurring in part and dissenting in part:

I concur with the majority opinion except for the portion which reverses the trial judge’s determination that the evidence as a matter of law would not support an award of punitive damages against AMC. Although AMC knew that there was some danger of fire resulting from placement of the fuel tank beneath the trunk floor, AMC chose to place it there, rather than in the kick-up area, because its engineers had determined that placement in the kick-up area would increase the risk of fires from side collisions. Eventually, the tank was moved to the kick-up area, but only to allow the automobile to comply with government standards, which AMC’s engineers thought did not duplicate real world conditions. Even assuming that the AMC engineers were wrong in these determinations, at most that could only amount to negligence, not the malicious refusal to implement a “safer” design required to support an award of punitive damages.

The majority states that failure to build to a safer design “in order to maximize profits” should support an award of punitive damages here. Any product, especially an automobile, can always be redesigned to increase user safety. However, increases in safety necessitate increases in cost; a perfectly safe automobile would be unaffordable. Therefore, in order to retain a salable product, the manufacturer is always forced to reduce the safety of the design by some amount from the ideal. Therefore, for any given product, the manufacturer will always have failed to make the product safer because of considerations of profit. Such practical economic considerations are not at all wrongful, much less malicious. If these considerations are made the foundation for punitive damages, then any negligent failure of a manufacturer will subject him to punitive damages.

I would affirm the trial judge’s directed verdict on the claim for punitive damages against AMC.

      . That error was committed in this respect is abundantly clear, and this was conceded at oral argument by counsel for appellee.

      . See Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970).

      . Moreover, the court also noted that no competent proof was adduced that the valve was in a defective condition when purchased. 352 So.2d at 1224.

      . For example, the plaintiffs presented expert testimony from Robert Pautsch, an industrial design engineer, that there would have been no gasoline leakage from the automobile’s fuel system in this accident had it been properly located.


source: Caselaw Access Project

author: SHARP, Judge. COWART, Judge,

license: Public Domain

text:
    Rose A. MANZO and Betty A. Cox, d/b/a Titusville Beauty School, Appellant, v. PATCH PUBLISHING CO., INC., Appellee.
    No. 79-504.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 15, 1981.

      Richard A. Manzo and Ernest C. Wright, Titusville, for appellants.
    Richard H. Miller, Titusville, for appellee.
   SHARP, Judge.

Rose A. Manzo (d/b/a the Titusville Beauty School) appeals from a judgment entered after a jury trial based on a directed verdict made at the close of her case. The trial court granted Patch Publishing Co., Inc. the right to evict the Beauty School from a portion of a building then owned by Patch, and denied Manzo any relief on her counterclaim for damages. Manzo argues the lower court erred in construing “Clause Tenth” lof the lease as giving Patch (a vendee of the original landlord) the right to cancel the lease, and in directing a verdict for Patch because the evidence showed Patch waived its right under the cancellation clause. We disagree and affirm the judgment.

A directed verdict in this case was appropriate on the construction of the lease issue because the construction of a written document is primarily a question of law for the court particularly where there is no conflicting evidence presented for resolution regarding an ambiguity and differing intents of the original parties. Although the issue of “waiver” is usually considered one of fact appropriate for resolution by a jury, in this case all the facts bearing on this issue were undisputed, and there were no facts or inferences to support a finding that Patch waived its right to cancel the lease.

The evidence established that Manzo was leasing part of a building located in Bre-vard County for her Beauty School. The lease was a form business lease with an inartfully drafted cancellation clause: “[I]n the event of the sale ... of all or any part of the building; requiring this space, . . . the lessee hereby agrees to vacate some. . . . ” While her lease was still in effect, the agents for the Bryan estate (the original lessor) sold the building to Patch Publishing Co., Inc.

Glenn Patch, the president of Patch Publishing, testified that he, together with two friends, originally contracted to buy the property in February of 1979. Before the closing in April of 1979, the friends assigned their interests to Patch, and Patch Publishing alone bought the building. At that time Glenn Patch intended to move his publishing business into the space occupied by the Beauty School. He was unaware that Manzo had renewed the Beauty School lease, and he assumed she only had a month-to-month periodic tenancy.

Shortly after the closing, at Patch’s direction, an attorney for Patch wrote a letter to the Beauty School purporting to terminate the month-to-month tenancy. The letter was dated April 25,1979, and it asked the tenant to vacate by May 31, 1979. Patch accepted a monthly rental payment from the Beauty School in early May, but Glenn Patch testified without contradiction it was accepted before he or his attorney knew the Beauty School lease had been renewed. When the attorney for the Beauty School told Patch and its attorney about the renewal, Patch’s attorney sent the Beauty School a letter dated May 25, 1979 specifically exercising the option to cancel contained in “Clause Tenth”, and requesting possession of the premises no later than sixty (60) days after the date of the letter. At no time did Patch ever agree with the Beauty School that it could continue the lease, nor did it offer to negotiate a new lease.

Although there is some authority to the contrary, the better view is that an option to cancel a lease upon the occurrence of a sale may be exercised by the purchaser as well as the original lessor where the lease does not expressly require that it be exercised by one or the other. In this case, the lease does not specify which party must exercise the option to cancel. This conclusion is strengthened when the lease (as in this case) contains the provision that the lease is binding on the lessor “and its assigns.”

To hold that only the lessor (as Manzo argues) can exercise the option to cancel, would greatly diminish the practical use or value of this provision. The lessor would have to cancel before the sale occurs, and run the risk of losing a possibly valuable lease if the sale is not consummated. Further, some authorities question whether a mere contract to sell, as opposed to a sale, gives the lessor the right to cancel under such a lease provision. Thus, if the sale does not close the lessor may lose his tenant, or face a damage suit for wrongful eviction. See 49 Am.Jur.2d Landlord and Tenant § 1004 (1970). After the sale, the lessor conceivably has no right to cancel because he no longer owns the reversion. Therefore, the lessor could safely exercise his option to cancel only in the flash of the second when “seisin” is transferred to the purchaser. Surely this is too restrictive a view of “Clause Tenth.” This kind of clause was intended to benefit the lessor and his vendee, and it should not be strictly construed against them.

The grantee’s or vendee’s right to cancel the lease after a sale may be waived if it accepts rent payments from the lessee or takes other action under circumstances indicating it did not intend to cancel the lease: in sum, if it “attorned” to the lessee as the new lessor. In this case, there was no conflicting evidence on this point. The vendee, Patch Publishing, consistently sought to terminate the lease, and it accepted one month’s rent payment from the lessee under the belief there was only a periodic tenancy, which was consistent with its termination notice. Its failure to send the proper termination notice in the first instance was only a technical defect. Our conclusion on the waiver issue is further buttressed by “Clause Nineteenth” of the lease which provides: “The rights of the lessor under the foregoing shall be cumulative, and failure on the part of the lessor to exercise promptly any rights given hereunder shall not operate to forfeit any of the said rights.”

Accordingly, the judgment appealed is

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

I think the majority and better view is that expressed in the cases collected in note 5 of the majority opinion. The only authority to the contrary is the one New York lower appellate court case cited in notes 6 and 11. Even the cases that hold that a purchaser from the lessor is permitted to exercise a “right to terminate upon sale”' provision of a lease generally only hold that the purchaser may exercise the provision only upon a subsequent good faith sale by that purchaser. I would reverse.

      .“Clause Tenth” of the lease provides:
      It is hereby agreed and understood between lessor and lessee that in the event the lessor decides to remodel, alter, or demolish all or any part of the premises leased hereunder, or in the event of sale or long term lease of all or any part of the building; requiring this space, the lessee hereby agrees to vacate same upon receipt of sixty (60) days written notice and the return of any advance rental paid on account of this lease.
      Most authorities say this clause creates a lease estate “upon a condition subsequent.” 49 Am.Jur.2d Landlord and Tenant § 999 (1970).

      . Peacock Construction Co. v. Modern Air Conditioning, Inc., 353 So.2d 840 (Fla.1977); Buckner v. Physicians Protective Trust Fund, 376 So.2d 461 (Fla. 3d DCA 1979); Innkeepers International, Inc. v. McCoy Motels, Ltd., 324 So.2d 676 (Fla. 4th DCA 1975); 51C C.J.S. Landlord & Tenant § 245 (1968).

      . J & S Coin Operated Machines, Inc. v. Gottlieb, 362 So.2d 38 (Fla. 3d DCA 1978); see Mathews v. Florida Crossbreeds, Inc., 330 So.2d 183 (Fla. 2d DCA 1976); Royal American Realty, Inc. v. Bank of Palm Beach and Trust Co., 215 So.2d 336 (Fla. 4th DCA 1968).

      . Zilber Cab Co. v. Capeletti Bros., Inc., 303 So.2d 360 (Fla. 3d DCA 1974); Mathis v. Lambert, 274 So.2d 601 (Fla. 3d DCA 1973).

      . Gorman v. General Outdoor Advertising Co., 320 Ill.App. 339, 50 N.E.2d 854 (1943); Gostin v. Needle, 185 Md. 634, 45 A.2d 772 (1946); Scheman v. Adore Realty Corp., 117 N.Y.S.2d 884 (1952); Petition of Furio, 272 App.Div. 941, 72 N.Y.S.2d 425 (1947); Sitt v. Fifth Ave. Realty Co., 31 Misc.2d 803, 220 N.Y.S.2d 526 (1961); Payne v. Brathwaite, 113 Misc. 517, 185 N.Y.S. 107 (1920); Krim Realty Corp. v. Varvori, 97 Misc. 407, 161 N.Y.S. 229 (1916).

      . Morlee Sales Corp. v. Manufacturers Trust Co., 9 N.Y.2d 16, 210 N.Y.S.2d 516, 172 N.E.2d 280 (1961); 49 Am.Jur.2d Landlord and Tenant §§ 1006, 1009 (1970); 51C C.J.S. Landlord & Tenant § 93(3) (1968).

      . Parkway Baking Co. v. Fruehauf Trailer Co., 351 Pa. 82, 40 A.2d 268 (1944).

      . 49 Am.Jur.2d Landlord and Tenant § 1006 (1970).

      . Upton v. Toth, 36 Cal.App.2d 679, 98 P.2d 515 (1940); 49 Am.Jur.2d Landlord and Tenant § 1000 (1970); 51C C.J.S. Landlord & Tenant § 93(3) (1968).

      . Fallek v. Cramer, 239 Mo.App. 494, 191 S.W.2d 375 (1945); Sitt v. Fifth Ave. Realty Co., 31 Misc.2d 803, 220 N.Y.S.2d 526 (1961); Krim Realty Corp. v. Varvori, 97 Misc. 407, 161 N.Y.S. 229 (1916); Butler & Herman Co. v. Meth, 122 N.Y.S. 271 (1910); 49 Am.Jur.2d Landlord and Tenant § 1006 (1970).

      . Morlee Sales Corp. v. Manufacturers Trust Co., 9 N.Y.2d 16, 210 N.Y.S.2d 516, 172 N.E.2d 280 (1961).

      . 49 Am.Jur.2d Landlord and Tenant §§ 1002, 1007 (1970).


author: COBB, Judge.

text:
    Robin L. MILLER and Lynda A. Miller, Individually and as husband and wife, Appellants, v. Richard E. MARRINER and Grain Dealers Mutual Insurance Company, a Foreign Corporation, Appellees.
    No. 81-125.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 15, 1981.

      Herbert H. Hall, Jr., of Maher, Over-chuck, Langa & Cate, Orlando, for appellants.
    Ronald L. Harrop of Gurney, Gurney & Handley, P. A., Orlando, for appellees.
   COBB, Judge.

The appellants, Robin and Lynda Miller, husband and wife, were involved in an automobile accident in Orange County, Florida, in 1979 with the appellee Richard Marriner, and filed a negligence complaint against him and his insurance carrier, Grain Dealers Mutual Insurance Company (hereinafter referred to as GDM).

The complaint alleged, inter alia, that GDM “was and is a foreign corporation authorized to and issuing liability insurance policies and at the time of the occurrence alleged herein had issued a liability insurance policy to the Defendant ...” It was further alleged that the policy was in effect on the date of the accident.

The plaintiffs attempted to obtain in per-sonam jurisdiction over GDM pursuant to sections 48.181 and 48.151(5), Florida Statutes (1979). The plaintiffs served their complaint by mail upon the Florida Secretary of State. GDM moved to quash the service of process on three grounds: (1) lack of jurisdiction of the person; (2) insufficiency of process; and (3) insufficiency of service of process. This motion, dated June 3, 1980, asserted as the substantial matter of law to be argued only one item:

There are insufficient allegations of ultimate fact in Plaintiffs’ Complaint to show that this Defendant, a foreign corporation, is subject to the jurisdiction of a Florida court.

A hearing was held on this motion and on September 24, 1980, the trial court denied defendants’ motion to strike dated May 2, 1980, and defendants’ motion to quash dated June 3,1980. If GDM joined in a motion to strike which preceded its attack on in personam jurisdiction, that action would have constituted a general appearance which waived the issue. Royal Industries, Inc. v. Birdsong, 340 So.2d 526 (Fla. 1st DCA 1976), cert. denied, 351 So.2d 408 (Fla.1977). That point has not been raised on this appeal, and the contents of the May 2nd motion to strike are not before us, so we cannot resolve the present issue on the rationale of Birdsong.

On September 26, 1980, the defendant GDM filed its answer admitting the existence and applicability of its policy as alleged, but affirmatively asserting that the trial court

lacks jurisdiction over the person of this Defendant since this Defendant is a foreign corporation engaged in the underwriting of automobile liability insurance policies in jurisdictions other than the State of Florida and the policy of automobile liability insurance issued to the Defendant, Richard E. Marriner, was issued in the State of North Carolina and delivered therein.

On November 19, 1980, GDM filed an affidavit in support of its defense of lack of personal jurisdiction and noticed the motion for hearing. At the hearing on December 23,1980, GDM made an ore tenus motion to file a “renewed motion to quash.” This request was granted and the motion was filed on December 24, 1980. A hearing was held on that motion and, on January 22, 1981, the trial court granted the motion to quash service of process on GDM. That order is here appealed by the plaintiffs.

Since GDM raised the defense of jurisdiction over the person by preliminary motion, which was ruled upon by the trial court, it could not also raise the defense in its responsive pleading. Florida Rule of Civil Procedure 1.140(b) states:

Defenses.
(b) How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert any defense in law or fact to that claim for a relief at the trial except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within 20 days after service of the answer or reply. [Emphasis added].

The first step which a defendant takes in a case, whether it be the filing of a preliminary motion or a responsive pleading, must raise the issue of personal jurisdiction or that issue is waived. Those defenses which may be subsequently raised under Rule 1.140(h)(2) do not include jurisdiction of the person. The rule quoted above clearly prohibits a motion raising this issue after pleading. See Trawick’s Florida Practice & Procedure § 10-1 at page 22 (1979).

In the instant case, GDM had two options after its motion in regard to in personam jurisdiction was denied on September 24, 1980: it could have filed an appeal of a non-final order within thirty days (Fla.R.App.P. 9.130), or it could have appealed this issue after rendition of final judgment (Fla.R.App.P. 9.010). See Robinson v. Loyola Foundation, Inc., 236 So.2d 154 (Fla. 1st DCA 1970). Instead, it attempted to again raise the jurisdictional issue before the trial court in contravention of the Rules of Civil Procedure.

GDM argues that its June 3rd motion to quash (which technically should have been a motion to abate) challenged only the legal sufficiency of the complaint’s allegata in regard to personal jurisdiction, whereas its November motion attacked the factual basis of such jurisdiction. This is specious: the issue cannot be bifurcated even though it could have been originally raised and heard on two points of law rather than merely one had the motion so designated with specificity and particularity as required by Florida Rule of Civil Procedure 1.140(b). As pointed out in Elmex Corp. v. Atlantic Federal Savings & Loan Ass'n., 325 So.2d 58 (Fla. 4th DCA 1976):

It is plaintiff’s burden to plead (present) facts which clearly justify as a matter of law the applicability of the substituted service statutes in order to meet a legal challenge to such service. Young Spring & Wire Corp. v. Smith, supra [Fla.1965, 176 So.2d 903]; American Baseball Cap, Inc. v. Duzinski, Fla.App.1975, 308 So.2d 639. It is also plaintiff’s burden (at some stage of the proceedings) to prove the allegations warranting the application of the substituted service statute in order to overcome a competent challenge to such service. See Henschel-Steinau Company v. Harry Schorr, Inc., Fla.App.1974, 302 So.2d 198.
There are, therefore, two separate and distinct considerations (or burdens to be carried) in the determination of the applicability of the substituted service statute: (1) the legal sufficiency of the pleadings ; (2) the legal sufficiency of the proof.
* * * % * *
It may be unnecessary for the defendant to do anything more than file a simple (unsupported) motion where the allegations of the complaint are legally insufficient. See Lyster v. Round, Fla.App. 1973, 276 So.2d 186; Lake Erie Chemical Company v. Stinson, Fla.App.1964, 162 So .2d 545; Nichols v. Seabreeze Properties, Inc., Fla.App.1974, 302 So.2d 139; cf. Fawcett Publications, Inc. v. Brown, Fla.App.1962, 146 So.2d 899. However, a complaint may present jurisdictional facts which (when deemed admitted for the purposes of the motion) would be sufficient to withstand such motion.
* * ^ * * *
A defendant seeking to inject factual matters which do not appear on the face of the record is required to support the motion to dismiss with an affidavit, deposition or other proof. See Viking Superior Corporation v. W. T. Grant Company, supra [Fla.App.1968, 212 So.2d 331]. If the supporting proof reflects facts in opposition to or in contravention of those matters contained in the complaint the issue becomes then “one of proof” with the burden shifting to the plaintiff to clearly show by competent proof that the allegations of the complaint justify the application of the long-arm statute. [Emphasis in the original].

Elmex does not contemplate two separate motions separated chronologically, but separate bases, one legal and one factual, for the same motion. That motion in the instant case was filed on June 3, 1980, and ruled upon on September 24, 1980, by the trial court, whether correctly or incorrectly. That ended the matter below, short of appeal. No rule or statute provides for a “renewed motion to quash” on the issue of personal jurisdiction of a defendant subsequent to the filing of that defendant’s responsive pleading.

The order of the trial court entered on January 22, 1981, is reversed and this cause remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ORFINGER and FRANK D. UP-CHURCH, Jr, JJ, concur.

      . See Rule 1.140(b), Fla.R.Civ.P.

      . The trial court’s order referred to the defendants in the plural relative to the motion to strike of May 2, 1980, and the complaint named only two defendants: Marriner and GDM.


author: COWART, Judge.

text:
    GULF OIL REALTY COMPANY, a Delaware Corporation, and Robert T. Craig, Petitioners, v. WINDHOVER ASSOCIATION, INC., a Florida Corporation, Respondent.
    No. 81-508.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 14, 1981.

      David U. Strawn of Akerman, Senterfitt & Eidson, Orlando, for petitioners.
    Kenneth M. Clayton of Clayton & Landis, Orlando, for respondent.
   COWART, Judge.

Respondent, a condominium association, is plaintiff in a class action against petitioners instituted pursuant to Florida Rule of Civil Procedure 1.221. Petitioners filed a motion to require respondent to give notice to the condominium unit owners (members of the class) advising them of the litigation and of their right to exercise an option to not have their rights determined in this class action, their right to have an attorney of their choice to represent them and of their potential obligation to pay a share of any cost and attorney’s fees which petitioner may recover in the class action. . This petition for writ of certiorari is to review the trial court’s denial of this motion.

In Avila South Condominium Association v. Kappa Corporation, 347 So.2d 599 (Fla. 1977), the Florida Supreme Court held that section 711.12(2), Florida Statutes (1975), and section 718.111(2), Florida Statutes (Supp. 1976), giving condominium associations the right to sue on behalf of unit owners, were unconstitutional encroachments into procedural matters as they related to class actions. However, the supreme court in that opinion summarily amended Florida Rules of Civil Procedure to adopt a Rule 1.220(b) [now Rule 1.221] giving condominium associations standing to bring class actions on behalf of individual condominium unit owners.

Petitioners present the following argument. Although Florida Rule of Civil Procedure 1.221 permits a condominium association to engage in class action litigation to recover benefits for condominium unit owners, it does not expressly require personal notice of the action be given to the unit owners. This presents two basic inequities. First, condominium unit owners, just like members of other class action litigation, have the right to have an attorney of their choice represent then and have an option to be dismissed from any litigation and thus not be bound by its result. Failure to require notice deprives the unit owners of these rights. Second, and realistically more important to petitioners’ position, failure to require notice deprives the petitioners (defendants at trial) from recovering a potential judgment for costs if they are ultimately successful in defending at trial. A condominium association commonly has no assets available to satisfy a judgment against it and procedural due process prevents a valid personal money judgment from being obtained against unit owners in litigation in which they are not parties and are given neither personal notice or an opportunity to defend. Petitioners assert a procedure is basically unfair that permits the condominium association to institute class action litigation to endeavor to recover financial benefits for its condominium unit owners under circumstances where, if the litigation is unsuccessful and defendants are entitled to recover costs and attorney’s fees, the association is financially irresponsible and no judgment can be recovered against the unit owners. Petitioners conclude that to remedy this situation this court should require the trial court to require the respondent condominium association to give notice to its unit owner members.

We understand and agree and sympathize with petitioners yet we must deny relief.

First, it is not the proper function of this court on certiorari to supervise the interlocutory orders of trial courts solely because the order is not otherwise reviewable pursuant to the appellate rules. The order must be a departure from the essential requirements of law. When the problem of notice to the condominium unit owners was presented to the Florida Supreme Court, the reply was

trial judges have in a number of instances since the adoption of the rule required notification to the putative class members after institution of suit to provide an opportunity for nonconsenting unit owners to “opt out” of the suit. This procedure is not inconsistent with Florida Rule of Civil Procedure 1.220(b).
The Florida Bar, In re: Rule 1.220(b), 353 So.2d 95, 97 (Fla. 1977).

However the implication was only that trial courts do not err by requiring notice and the supreme court neither modified the rule to make notice mandatory nor held that trial courts err by not requiring notice to be given to unit members. See Palm Beach Towers, Inc. v. Korn, 400 So.2d 110 (Fla. 4th DCA 1981). Since notice is not mandatory, failure to require notice is not a departure from the essential requirements of law.

Second, when an appellate court reviews a lower court order, there is a procedural distinction between review by certio-rari and review by appeal. On appeal, an appellate court has authority to reverse an order or judgment and remand with directions or instructions for the trial court to follow. However, after review by certiora-ri, an appellate court can only quash the lower court order; it has no authority to direct the lower court to enter contrary orders. Petitioner is essentially asking this court to require notice be given. Therefore, even if certiorari were otherwise appropriate in the instant case, the remedy provided by certiorari would be inadequate.

Finally, the requiring of such notice as the petitioners desire is either a substantive matter, the proper subject matter of a statute enacted by the Legislature, or a procedural right, properly implemented by the Florida Supreme Court under its constitutional rule making power. This court has neither the legislative authority nor the rule making authority to modify Florida Rule of Civil Procedure 1.221 to provide the remedy which petitioners seek.

The petition for writ of certiorari is

DENIED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . We note that this distinction is not always followed. See generally Haddad, The Common Law Writ of Certiorari in Florida, 29 U.Fla.L.Rev. 207, 225 (1977).


author: McCORD, Judge.

text:
    HOUSING BY VOGUE, INC., and Mobile Home Industries, Inc., Appellants, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. OO-348.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1981.

      John C. Cooper of Douglass, Davey & Cooper, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Linda C. Proc-ta, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellants appeal from a final order of the Department of Revenue assessing sales tax and a penalty against them. The Department determined the tax to be due on materials purchased by appellants and used in the performance of their contract with the Florida Department of Education for construction of relocatable educational facilities. We affirm.

Appellants contracted with the Department of Education to construct relocatable classroom prototypes to be owned by the department but capable of being transported to various county school districts whenever the need arose for extra classroom space. The construction of these units was authorized by § 235.211(1), Florida Statutes (Supp.1974), School design, construction techniques, and financing mechanisms—(1) RELOCATABLE FACILITIES REQUIRED.

The units were to be movable and capable of being set up on different sites without damage or modification. The construction was similar to that of a mobile home in that each unit had a steel undercarriage with axles and wheels for transportation. Although the parties seem to agree that these units are personalty, they do have attributes of realty. When the units are set up and operational, they are attached to the ground by tie-down straps or a corkscrew-type hellical anchor foundation. The units required site preparation and foundation work prior to being secured to the ground. Also, the units were attached to the soil by way of water and sewer lines.

Appellants contend that the units are tangible personal property sold to the state, and, therefore, no tax was due pursuant to § 212.08(6), Florida Statutes, which states:

(6) EXEMPTIONS; POLITICAL SUBDIVISIONS, COMMUNICATIONS. —There shall also be exempt from the tax imposed by this chapter sales made to the United States Government, the state, or any county, municipality or political subdivision of this state; provided this exemption shall not include sales of tangible personal property made to contractors employed either directly or as agents of any such government or political subdivision thereof when such tangible personal property goes into or becomes a part of public works owned by such government or political subdivision thereof .. .

The hearing officer found these relocatable classroom units to be tangible personal property. However, he determined that they were “public works” within the meaning of subsection 212.08(6), Florida Statutes. He, therefore, recommended that a tax be assessed because the materials and supplies necessary for the fabrication, transportation and installation of the units were “tangible personal property which went into or became a part of public works owned by the state.” The Department of Revenue adopted the findings and recommendations of the hearing officer.

Neither party has challenged the hearing officer’s determination that the units are tangible personal property, but whether or not they are real or personal property is not determinative. The sole issue is whether the units are “public works.”

Appellant argues that public works are limited to realty and fixed works such as docks, railways, roads, etc. Demeter Land Co. v. Florida Public Service Commission, 128 So. 402, 99 Fla. 954 (Fla.1930). The Department of Revenue urges that the definition of “public works” is not restricted to realty and includes these relocatable classroom units. Both parties cite 26 FlaJur. Public Works and Contracts § 2 which states:

While the term “public works” has been defined as all fixed works constructed for public use, such as railways, docks, canals, waterworks, roads, and the like, the determination of what are public works is often a question of statutory construction. Such works as are by statute authorized to be constructed for public purposes by the state or its agencies are generally regarded as public works.

While all fixed works constructed for the state or its subdivisions are public works, we do not consider that “public works” are limited to fixed works. Demeter Land Co., supra, does not mandate such a limitation. The construction of these relocatable units was authorized by statute for school design and construction, § 235.-211(1), Florida Statutes. The contract of construction was bid and administered just as any contract for fixed work would have been and carried the same bonding requirements. Sections 235.32 and 255.05, Florida Statutes. A project architect administered the project. The only distinction between this contract and a traditional contract for a construction of a fixed building is that these units are relocatable. We do not consider this to be a material distinction in the determination of whether or not appellants have shown that this construction comes within the exemption.

Exemptions to taxing statutes are special favors granted by the Legislature and are to be strictly construed against the taxpayer. State v. Thompson, 101 So.2d 381 (Fla.1958); State ex rel. Szabo Food Service, Inc., of N.C. v. Dickinson, 286 So.2d 529 (Fla.1973). We hold that these relocatable classroom units are “public works” within the meaning of § 212.08(6), and therefore a tax was due on the sale of the materials and supplies which went into their construction.

We previously filed an opinion in this cause on January 27, 1981, which was identical up to this point with this opinion, but on petition for rehearing, we vacated that opinion and relinquished jurisdiction to the hearing officer of the Division of Administrative Hearings for reconsideration of his recommended order in the light of Rule 12A-1.94, Florida Administrative Code (adopted June 3, 1980), by which appellee, the Department of Revenue, defined the term “public works” in relation to public works contracts. This rule was not called to our attention prior to the release of our aforesaid opinion, and there was no indication in the record that it was considered by either the hearing officer or appellee. Ap-pellee, Florida Department of Revenue, has now entered its final order upon remand and reconsideration adopting the findings of fact and conclusions of law of the hearing officer entered upon remand. The findings and conclusions of both the hearing officer and the Department of Revenue remain the same as in the hearing officer’s previous recommended order and the previous order of the Department of Revenue with the exception that both find that Rule 12A-1.94, Florida Administrative Code, was adopted subsequent to the previous final order of the Department of Revenue, that it was not intended to apply retroactively and has no application to this case. We agree and we make no ruling here on the validity, meaning or effect of this rule.

Supplemental briefs were filed by the parties and after consideration thereof, we adhere to our previous ruling and opinion which is stated above.

AFFIRMED.

MILLS, J., concurs.

BOOTH, J., dissents without written opinion.

      . This rule appears to be an effort to confine “public works” to real property only and to define “real property” to include such structures as the relocatable classroom prototypes involved in this proceeding.


text:
    George W. LAMBERT, Jr., and Bill A. Corbin, Appellants, v. Theodore A. DRACOS, Appellee.
    No. VV-77.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1981.
    Bill A. Corbin, Blountstown, for appellants.
    Raymond L. Syfrett and Richard C. Trollope, Panama City, for appellee.
   TILLMAN PEARSON, (Retired), Associate Judge.

The controlling question presented on this appeal is: May a mortgage foreclosure be maintained against one of two debtors who is a tenant in common with another without joining the second co-tenant who is also a co-obligor on the mortgage? We hold the co-tenants as co-obligors on the mortgage are indispensable parties and that it was prejudicial error to deny appellant/defendant’s motion to dismiss on the ground of failure to join his co-tenant, co-obligor.

George and his wife, Clara Lambert, jointly executed a promissory note which was secured by a second mortgage on their jointly-held marital home. George and Clara were divorced and pursuant to the divorce decree, Clara was given the right to occupy the home with the children. The decree also required Clara to make payments on the first mortgage while it required George to make payments on the second mortgage. George experienced financial difficulties and the second mortgage came into default. He spoke with a bank officer of the bank that was the owner and holder of the second mortgage and was assured by the bank officer that he (the bank officer) would work with him insofar as his authority would permit. Thereafter Clara married Theodore A. Dracos. Because the bank was threatening foreclosure and in order to protect Clara’s interest in the property, Mr. Dracos purchased the second mortgage from the bank by paying the balance due and taking an assignment of the note and mortgage. Dracos then brought the present mortgage foreclosure action. He named as defendants only George Lambert and one Bill A. Corbin. The complaint alleged that Mr. Corbin claimed some interest in the property and that his claim was subject to the second mortgage.

The defendants moved to dismiss the complaint on the grounds that plaintiff had failed to join an indispensable party, that is, Clara Lambert Dracos. The motion was denied. The cause came to issue upon defendant George Lambert’s answer, which raised numerous affirmative defenses. After trial, George Lambert’s interest in the mortgage property was sold at a judicial sale to Mr. Dracos for $100.00.

On this appeal, George Lambert and Bill A. Corbin present three points on appeal, only one of which we find has merit. First, George Lambert urges that the court committed error when it found that his affirmative defense of estoppel to declare an acceleration of the entire amount due was not proved. Our examination of the record convinces us that defendant, George Lambert, failed to prove an understanding or agreement with the bank, as owner and holder of the mortgage prior to assignment, not to accelerate or foreclose without further notice to him. The defense of estoppel to foreclose a mortgage requires a clear showing of action by the mortgagee which misleads the mortgagor so that he acts in a way that he would not have acted if he had known that the mortgagee would require performance under the strict terms of the mortgage agreement. See Flagler Center Building Loan Corp. v. Chemical Realty Corp., 363 So.2d. 344 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 467 (Fla.1979). The record shows no such action by the bank. The argument that the foreclosure was an unequitable scheme to defraud George Lambert fails for a similar reason. It was George Lambert’s responsibility to make the mortgage payments and upon his failure, the purchase and foreclosure of the mortgage was a reasonable business practice by Mr. Dracos. Lambert’s second point claiming procedural irregularities in the foreclosure sale is also without merit. However, we find merit to appellants’ argument that the motion to dismiss for failure to join an indispensable party, i. e., Clara Lambert Dracos, should have been granted.

There is extensive authority in this state for the proposition that the owner of mortgaged property is an indispensable party to an action to foreclose a mortgage on that property. E. g., Berlack v. Halle, et ux., 22 Fla. 236 (1886); Oakland Properties Corp. v. Hogan, 96 Fla. 40, 117 So. 846 (1928); Davanzo v. Resolute Ins. Co., 346 So.2d 1227 (Fla. 3d DCA 1977). However, this authority is not so immutable when the holding in each case is examined.

Berlack v. Halle, supra, was an appeal of a final judgment in ejectment. The court stated that the owner of legal title is a necessary party to a suit for foreclosure of a mortgage. But the holding is that because of the defective foreclosure, the rights of the owner of the legal title and his assigns are unaffected. Because the appeal was not from a final decree of foreclosure, the court did not rule upon the effect on the rights of defendants who were made parties to the foreclosure.

Oakland Properties Corp. v. Hogan, supra, was an appeal from an order dismissing a complaint to reform a deed. The court stated that one who holds the legal title to mortgaged property is not only necessary, but is an indispensable party defendant in a suit to foreclose a mortgage. But the holding was that the foreclosure decree was void only as to that portion of the land owned by Oakland Properties Corporation which was not made a party to the foreclosure action.

In Davanzo v. Resolute Ins. Co., supra, the legal title holder appealed a final judgment of foreclosure of four of six mortgages on a certain property. The court stated:

One who holds legal title to mortgaged property is an indispensable party defendant in a suit to foreclose a mortgage and a court cannot properly adjudicate the matters involved in this suit when it appears indispensable parties are not in some way actively or constructively before the court.

The court held that the owner of the legal title was made a defendant under the pleadings in all except one of the mortgages foreclosed. The judgment was reversed as to the one mortgage only.

None of these cases reach the question here presented of the right to maintain a foreclosure action in which one of two joint owners, who is a co-obligor on the mortgage, is not made a party to the action.

An annotation entitled “Right Under Mortgage by Co-Owners of Undivided Interest to Foreclose as Against Less Than All of Such Interests” appears at 82 A.L.R. 1347 (1933). The annotated case is Kruger v. Taylor, 27 S.W.2d 130 (Tex.Com.App.1930), modified 30 S.W.2d 300 (1930). There, Kruger and Jaffe had executed two promissory notes for which they were jointly and severally liable. To secure payment of the notes, Kruger and Jaffe executed a mortgage on lots which were jointly owned by them, each owning an undivided one-half interest. Subsequently, Jaffe died. Taylor brought suit to recover on the notes and to foreclose the mortgage lien against Kruger solely, without joining Jaffe’s executor. Kruger set up the non-joinder as a defense to the suit. His defense was overruled and the judgment was subsequently entered against Kruger for the amount due on the notes with foreclosure of the mortgage lien on Kruger’s undivided half interest in the lots. The court stated the rule as follows:

Where tenants in common give a joint mortgage on the common property, the lien attaches to the moieties of the mortgagors in the property, as an entirety. As a general rule, the holder of any one of these constituent moieties is entitled, in a foreclosure suit brought against him alone, to demand that the other moiety holders be brought in as parties to the suit .... The reason for the rule is obvious. The sale of an undivided interest or moiety does not ordinarily bring as good a proportionate price as the sale of the entirety. By executing the mortgage, neither of the mortgagors assumes the risk of loss in this respect, and the mortgagee has no right, over timely objection made, to impose this risk on either of them.

In 1 Wiltsie, Mortgage Foreclosure, § 336 (5th Ed. 1939), it is noted:

Where tenants in common jointly, or jointly and severally, mortgage property, a foreclosure cannot be maintained against one of them separately to collect a moiety of the debt; the action must be against both and those claiming under them. Neither can either of them compel the mortgagee to receive half of the debt, and thereby relieve him, and to proceed against his co-tenant for the collection of the other half. The interest of tenants in common in such cases must always be sold together, no matter how numerous the owners may be.

See also 3 Jones, Law of Mortgages, § 1797 (8th Ed. 1928), which further states:

Therefore, in case the mortgage was made by tenants in common, he is entitled to a foreclosure of the whole estate, and cannot be compelled to receive the share of the debt due from one of them and foreclose against the other for his share. Such would also be the case when two estates have been mortgaged, together, and the equities have subsequently passed into different hands. Neither would he be allowed to foreclose against the owner of one estate, without making the owner of the other a party also, unless there were special equities in favor of the estate exempted.

Both of the above-quoted authors cite Frost v. Frost, 8 Sand. Ch. 188 (N.Y.1846). In that case, tenants in common executed a joint mortgage and one of them sought to compel the mortgagee to receive one-half of the debt and to compel the mortgagee to proceed against the other tenant’s undivided interest for the other half. The court held that the action did not lie and, in so holding, reasoned that by joining in the mortgage the co-tenants intended to have a sale of the whole estate. It was also pointed out that the property would not sell as well in undivided moieties as the whole would together.

The Supreme Court of Florida cited Frost v. Frost, supra, in Walker v. Sarven, 41 Fla. 210, 25 So. 885 (Fla.1899). In Walker, the court reversed a decree of foreclosure which directed that the undivided one-half interest of one joint owner, who was a joint obligor on the mortgage, be sold first and then, if there was a deficiency, that the undivided interest of the remaining joint owner would be sold. In reversing, the court held:

In proceedings to foreclose this prior encumbrance upon the joint estate neither co-tenant was entitled to have the decree charge the other’s interest with the entire debt, nor could either insist that the decree charge the interest of each with one-half, or any other particular part, of the debt, for the simple reason that the whole estate was equally liable, . . .

We hold that the same reasoning applies to the case now before us and that, therefore, it was improper to allow a foreclosure against appellant’s interest alone. The complaint should have been dismissed for failure to join the indispensable party, i. e., the legal owner of the remaining interest of the estate foreclosed. Such a decision comports with the rights of an owner to have notice and an opportunity to defend in an action which affects the title to the property.

The judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

REVERSED AND REMANDED.

BOOTH and JOANOS, JJ., concur.


author: ERVIN, Judge.

text:
    George W. LAMBERT, Jr., Appellant, v. Clara Jean LAMBERT, Appellee.
    No. VV-137.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1981.

      Bill A. Corbin, Blountstown, for appellant.
    Raymond L. Syfrett and Richard C. Trollope, Panama City, for appellee.
   ERVIN, Judge.

George Lambert appeals those portions of the lower court’s order which denied certain requests made in his petition for modification of a final decree dissolving his marriage. We affirm in part and reverse in part.

The original decree awarded Lambert’s ex-wife, the appellee, primary care, custody and control of the parties’ minor children, and “exclusive use and possession of the household furnishings and marital home for the purpose of raising the two parties’ minor children.” The decree generally divided the other jointly held property between the parties, although appellant was awarded his personal desk and other personal belongings. Lambert was granted “liberal visitation rights with his children.” The order further provided that Lambert make child support payments in the amount of $300 per month. Finally, the appellee was ordered to “assume, pay and hold [Lambert] harmless” on the first mortgage as long as she was in exclusive possession of the marital home. Lambert correspondingly was ordered to assume payments on the second mortgage and to assume also the outstanding marital financial obligations, which he testified exceeded $20,000 at the time of the dissolution..

Lambert began having difficulties meeting his obligations under the decree. The undisputed evidence shows that during the year of divorce appellant had a net income of $9,418.34, while his debts and support obligations totaled $7,224. Even with an increase in pay the following year, these obligations still consumed 61% of his net pay. The appellant fell behind on some of his child support payments. His financial difficulties reached the point where he was on the verge of failing to meet a payment on the second mortgage. He temporarily staved off this crisis by persuading the bank holding the second mortgage to forestall foreclosure until he could obtain relief from the dissolution decree. On October 3, 1980, Lambert sought relief in the form of a petition for modification of the decree, seeking partition of the real and personal property jointly held by the parties following the dissolution of the marriage. Lambert also attempted to regain the custody of his children, or, alternatively, to obtain specific visitation rights and a reduction in his required child support payments. The wife countered with motions to hold Lambert in contempt of court for failure to make child support payments, and sought also a judgment for arrearages for past due payments.

During the pendency of the proceedings, the appellee remarried her present husband, Theodore Draeos. After the marriage, Dra-cos sold his home and, with some of his children from a previous marriage, took up residence with appellee in the parties’ former marital home. Subsequently, appellee made an addition to the home which was valued at $5,500.

Besides Lambert’s financial difficulties following the dissolution, the record shows that there was continuing animosity between Lambert and his former wife. The appellee and Draeos first offered to assume payments on the second mortgage if Lambert agreed to relinquish his interest in the marital home. Lambert refused this offer. Next, the appellee and Draeos consulted with their attorney who, in turn, recommended that Draeos obtain an assignment of the second mortgage from the bank and then commence foreclosure. Following those instructions, Draeos obtained the assignment and immediately thereafter commenced foreclosure. In that action, Draeos did not join the appellee. A foreclosure decree was entered, and a sale was subsequently held, culminating in Draeos purchasing the property for $100.

The record clearly reveals that Draeos and appellee’s purpose in foreclosing was to eliminate Lambert’s equity interest in the marital home, which was shown to be approximately $24,000. This figure was arrived at as follows: The stipulated value of the house at the time of foreclosure was $75,000. The remaining balance on the first mortgage was about $15,000, and on the second mortgage, roughly $8,000. Thus, Lambert and his wife jointly had about $52,000 of equity. After subtracting the value of the addition to the property after the remarriage ($5,500), and then equally dividing the balance, we find that the appellant, on paper, has nearly a $24,000 equity in the home.

The appellant argues five points on appeal, four of which we find to be without merit and we do not address. We confine our decision solely to the issue of whether the lower court erred in denying partition of both realty and personalty. We agree that the trial court erroneously concluded that partition of the marital home could not be granted. The basis of the court’s holding was that under the terms of the original decree, the wife had exclusive use of the home for the purpose of raising the parties’ minor children and, thus, the husband did not have the right to immediate possession. Cf. Weed v. Knox, 157 Fla. 896, 27 So.2d 419 (1946). This holding, however, ignores the rule that a spouse’s right, as custodian of the children of the dissolved marriage, to exclusive possession of a marital home granted by a dissolution decree terminates upon that spouse’s remarriage. Strollo v. Strollo, 365 So.2d 189 (Fla. 1st DCA 1978); Bailey v. Bailey, 361 So.2d 204 (Fla. 1st DCA 1978); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977); Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976); Abella-Fernandez v. Abella, 393 So.2d 40 (Fla. 3d DCA 1981). The reason behind the above stated rule is to avoid imposing on the former husband the obligation of providing shelter and habitation for his ex-wife’s new spouse. Abella-Fernandez v. Abella, 393 So.2d at 41. Remarriage, then, is unquestionably evidence of a substantial change in circumstances for purposes of a modification of a dissolution decree entered pursuant to Chapter 61, Florida Statutes. •

Modification of a provision in a dissolution award granting exclusive use and possession of property for the benefit of the children is permissible at any stage of the dissolution proceedings. Horn v. Horn, 398 So.2d 935 (Fla. 3d DCA, 1981). But cf., Covin v. Covin, 403 So.2d 490 (Fla. 3d DCA 1981). Therefore, the lower court erred in refusing to modify the original decree to reflect that appellee no longer has the right to exclusive possession of the marital home.

Lambert properly requested partition incident to his request to modify. See Horn, supra. Because he met the pleading requirements of § 64.041 governing partition, see Cyphers v. Cyphers, 373 So.2d 442 (Fla.2d DCA 1979), and because he had a right to immediate possession through modification of the original dissolution decree, he now has a right to partition as a tenant in common. Condrey v. Condrey, 92 So.2d 423 (Fla.1957). Because we held in the companion case, Lambert v. Dracos, 403 So.2d 481, that the foreclosure proceeding on the second mortgage was invalid, Lambert’s one-half interest in the marital home remains, and he thus demonstrates the requisite standing to request partition.

The lower court may wish to consider as a proper exercise of its discretion whether Lambert’s right to partition the former marital home would not be best achieved by consolidating the mortgage foreclosure and partition actions into one proceeding. It has long been observed that equity rejoices in doing complete justice, and not by halves. Skillman v. Baker, 142 So.2d 113 (Fla. 1st DCA 1962). Moreover, equity can intervene to protect a multiplicity of suits. See Realty Bond and Share Co. v. Englar, 104 Fla. 329, 143 So. 152 (1932); Connell v. Mittendorf, 147 So.2d 169 (Fla. 2d DCA 1962). And, finally, equity may stay its own proceedings and consolidate causes for trial. See Terra Ceia Estates v. Taylor, 68 Fla. 261, 67 So. 169 (1914).

The equitable remedies of partition and foreclosure are compatible in the instant case. A mortgagee is a proper party defendant in a partition suit, Miles v. Miles, 117 Fla. 884, 158 So. 520 (1935), and a defendant to a partition suit may be allowed, as part of the partition proceedings, to foreclose a mortgage on part of the land sought to be partitioned. See Burney v. Dedge, 56 So.2d 715 (Fla.1952). Therefore, now that the foreclosure decree has been vacated, should Dracos elect to file a subsequent foreclosure action against appellant, the trial court may wish to decide whether it should be done incidental to any partition suit which appellant may wish to prosecute. Thus, the trial court, if it desired, could adjudicate the several rights of the parties in a consolidated proceeding and thus avoid a multiplicity of suits. Miles v. Miles, supra.

A further question remains as to whether Lambert is entitled under Chapter 64, Florida Statutes, to a partition in kind or an outright sale of the property. Lambert alternatively prayed for both remedies in his petition. However, he did not plead an uncontested allegation that the marital home was indivisible pursuant to Section 64.061(4). Therefore, on remand, the trial court should permit Lambert to amend his petition by alleging, if he can, that the home is nondivisible. Moreover, it may be necessary for the court to appoint three persons as commissioners to make a report concerning whether partition can be made without prejudice to the owners. See Section 64.061 and 64.071(1), Florida Statutes. The latter section provides:

If the commissioners report that the lands of which partition is directed are so situated that partition cannot be made without prejudice to the owners and if the court is satisfied that such report is correct, the court may order the land to be sold at public auction to the highest bidder by the commissioners or the clerk and the money arising from such sale paid into court to be divided among the parties in proportion to their interest.

If a partition sale is ordered below, all of the rights of the parties could be adjudicated in one proceeding, and the sales involved in the two actions could be “divided among the parties in proportion to their interest.” Section 64.071. It has been observed that a judicial sale which is conducted to carry out the provisions of a suit for partition is governed by the same general provisions as a suit for foreclosure. See Grable v. Nunez, 66 So.2d 675 (Fla.1953); 12 Fla.Jur.2d, Cotenancy and Partition, § 105 (1979). Thus, should the court decide to consolidate the two actions, the traditional equitable rules as to priority of liens and equality of distribution should be followed in the partition proceeding. Some adjustment should be made in favor of the appellee and Dracos for the improvements to the property to the extent that it adds to the value of the property. See 12 Fla.Jur.2d, Cotenancy and Partition, § 67.

We do not intend by this opinion to foreclose the possible remedy that the parties may voluntarily agree to cooperate and jointly sell the property without the aid of the court to maximize the sale price. See In re: Marriage of Jones, 357 So.2d 439 (Fla. 2d DCA 1978). Or, the parties may wish to arrive at their own settlement, which may prove to be the most equitable to all parties concerned. Cf. Sherlock v. Sherlock, 396 So.2d 196 (Fla. 1st DCA 1981).

Lambert also complains that the lower court erred in not equitably distributing the personal property involved in the dissolution proceedings. We also agree. As to his right to partition the personal property, the same analysis as to the marital home applies. See § 64.091, Fla.Stat. Also, a cotenant may bring an action against the other cotenant in possession who sells or disposes of property which is jointly held without the consent of the other cotenant. See Hyer’s Exrs. v. Caro’s Exrx., 17 Fla. 332 (1879), 12 Fla.Jur.2d, Cotenancy and Partition, § 26. “A cotenant who sues for partition may pray, in addition to an actual partition of the common estate, for an accounting of the rents, issues, and profits of the estate which have been received by the other cotenant over and beyond the latter’s just share.” 12 Fla.Jur.2d, Cotenancy and Partition, § 64. Although Lambert did not specifically pray for an accounting concerning the personal property, a court of equity can mold a remedy to fit the substance of a complaint, as all prayers in equity are considered to pray for general relief. See Circle Finance Co. v. Peacock, 399 So.2d 81 (Fla. 1st DCA 1981).

The order of the lower court is reversed as to the issues concerning partition and distribution for further proceedings consistent with this opinion.

BOOTH and JOANOS, JJ., concur.

      . In a related appeal, Lambert v. Dracos, 403 So.2d 481, (Fla. 1st DCA, 1981), we held that the foreclosure decree was invalid because Dra-cos had failed to join Mrs. Lambert as an indispensable party.


author: PER CURIAM.

text:
    STATE ex rel. Herbert C. DESTIN, Appellant, v. Joe A. FLOWERS, as Comptroller for Escambia County, Florida, Appellee.
    No. XX-390.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1981.
    Rehearing Denied Oct. 2, 1981.

      Barne J. Morain, Pensacola, for appellant.
    C. Roger Vinson for Beggs & Lane, Pensacola, for appellee.
   PER CURIAM.

Destin appeals the trial court’s denial of his petition for a Writ of Mandamus. He seeks to compel Joe A. Flowers, Comptroller of Escambia County, to pay him $20,000 as provided in a special act passed by the legislature authorizing such payment for his work related injuries. We reverse.

Appellant was injured while employed as a road crew correctional guard in 1967. He received appropriate worker’s compensation benefits for permanent partial disability. Subsequently, appellant’s condition worsened and his disability rating was increased by 10 to 15%. Escambia County’s insurance carrier tried to settle the worker’s compensation claim for permanent partial disability, but appellant refused arguing he was permanently and totally disabled.

Destin approached the Escambia County Commission with his problem and it agreed to pay him $25,000 for his disability if he would settle the compensation claim for permanent partial disability as offered by the insurance carrier. The county sought and secured passage of a special bill in the legislature authorizing payment to Destin.

After the effective date of the bill’s passage, Destin settled his worker’s compensation claim for $10,000 giving up the right to a worker’s compensation hearing and the right to any further benefits. He also took an early medical retirement from the county. At the hearing below, Destin testified he was told by the insurance carrier’s attorney that the insurance settlement would not affect the special bill authorizing payment to him. Appellant understood that if he settled with the carrier, the county would pay their part for his injuries as authorized in the bill.

The county passed a resolution appropriating $20,000 to appellant. The comptroller refused payment arguing appellant’s exclusive remedy for a job related injury was Chapter 440, Florida Statutes (1979), the Worker’s Compensation Law, and that any appropriation of county funds to Destin would be an unconstitutional gift of public funds to a private individual.

The trial court denied appellant’s petition finding that his exclusive remedy was Chapter 440 .and that appellant received all of the benefits he was entitled to under the Act. The court further found that the appropriation of public funds to appellant would constitute an unconstitutional gift contrary to Article III, Section 11 and Article VII, Section 9 and 10, Florida Constitution.

Generally, the law as found by the trial judge and espoused by the comptroller is correct. An injured worker’s exclusive remedy is Chapter 440. See Crosby v. Regional Utility Board of Gainesville, 400 So.2d 1024 (Fla. 1st DCA 1981); Section 440.11 Fla.Stat. (1979). Since an injured worker’s exclusive remedy is the Worker’s Compensation Act, he has no entitlement to a special appropriation of public funds for a work related injury. Any such appropriation would be an unconstitutional gift, contrary to Article III, Section 11 and Article VII, Section 9 and 10.

However, the peculiar factual circumstances of the case below mandate reversal because the appropriation of county funds to Destín in this particular case is not a gratuity. Appellant gave valuable consideration for the special appropriation by the legislature. Based on the promises of the County Commission to seek and secure a special appropriation for his injuries, he was induced into compromising his worker’s compensation claim by waiving judicially enforceable rights. He relied on the county’s promises in giving up his right to a worker’s compensation hearing to determine the extent of his injury and his entitlement to appropriate compensation for the injury. He also gave up the right to any further benefits should his condition worsen, and he took an early medical retirement from the county in reliance upon receiving the special appropriation. Therefore, we hold the special appropriation is not a gratuity, but, instead, it is a settlement supported by valid consideration. The trial judge’s order is reversed and the cause is remanded with instructions to grant appellant’s petition for a writ of mandamus compelling the comptroller to pay the sum appropriated by the county to him.

Further, an employer, through its actions, may be estopped from claiming the defense of the exclusivity provision of the Worker’s Compensation Act. See Quality Shell Homes and Supply v. Roley, 186 So.2d 837 (Fla. 1st DCA 1966). We further hold that Escambia County, by its actions in inducing Destín to compromising his worker’s compensation claim and take an early medical retirement, is estopped from claiming Section 440.11, Florida Statutes (1979) as a defense to the action below.

MILLS, SHAW and JOANOS, JJ., concur.