author: ERVIN, Judge. LARRY G. SMITH, J., BOOTH, J.,

text:
    James P. GRANT and Audrey S. Grant, Appellants, v. Bobby STRICKLAND et al., Appellees.
    No. NN-205.
    District Court of Appeal of Florida, First District.
    June 30, 1980.

      W. J. Oven, Jr., Tallahassee, for appellants.
    John H. Cotten of Cotten, Shivers, Gwynn, Daniel, Kelley & Arrington, Tallahassee, for appellee.
   ERVIN, Judge.

Plaintiffs-appellants appeal from a final judgment following a non-jury trial denying their claim that they had acquired by adverse possession without color of title a certain strip of land located in Wakulla County, Florida. We affirm.

Because appellants’ claim is not under color of title, it was necessary that they establish continuous, unbroken adverse possession for a period of seven years by clear and convincing evidence showing either that the boundary strip they claim was substantially enclosed or usually cultivated or improved. Additionally, since appellants did not show that they returned the disputed land for taxes, it was necessary that their adverse claim mature seven years before June 5, 1939, the date the statute was amended requiring the land to be so returned.

Although appellants argued the disputed strip was cultivated for the required seven years, evidence on that point was conflicting, at best, and, as it was a question for the trier of facts, we do not disturb the trial court’s finding. One claiming adverse possession must prove each essential element of the claim “by clear and positive proof . . . .” The claim cannot be “established by loose, uncertain testimony which necessitates resort to mere conjecture.” Appellants’ claim is based primarily upon the fact that a substantial fence ran along the property’s northern boundary for more than seven years. While their evidence clearly and convincingly showed that the fence ran north of the true boundary separating the parties’ properties for the requisite seven-year period, there was no showing by clear and convincing proof that either appellants’ property or the disputed strip was protected by a substantial enclosure on all sides during the period. Appellants’ witnesses testified without contradiction that their predecessors’ fence ran along the south edge of a county road as far back as 1912 and until 1921; yet their testimony conflicted on whether the fence was joined by fences or natural barriers on other sides of the disputed property.

To enclose is variously defined as “a: to close in . . .: surround . .; specif.: to fence off or in (common land) in order to appropriate to individual use . ” The statute’s requirement that land claimed adversely be substantially enclosed is not complied with when it is fenced on only one of its borders. Natural barriers, such as navigable water, may suffice to provide part of a substantial enclosure. There may also be gaps in the enclosure; such interruptions however do not dissipate the substantial character of the enclosure so long as “there was for the full statutory period a conspicuous effort to maintain a fence around the land . for the obvious purpose of exercising rights of ownership” to the exclusion of all others (e. s.). The evidence here was lacking that appellants or their predecessors made a “conspicuous effort” to enclose the disputed land so as to provide notice that their possession was to the exclusion of the rights of all others.

From this record we cannot say that the trial judge, acting as trier of fact, erred in concluding that appellants had not overcome the statutory presumption that one holding “legal title to the property shall be presumed to have been possessed of it within the time prescribed by law.”

LARRY G. SMITH, J,, specially concurs.

BOOTH, J., dissents.

LARRY G. SMITH, J.,

specially concurring.

Although I agree, to some extent, with the discussion and application of the law as stated in the dissenting opinion, after a careful review of the record I am compelled to concur in the affirmance of the decision of the lower court. The conclusion reached by the trier of facts is always entitled to great weight; and this principle is especially applicable in a case of this kind. Here, the trial judge was required to sift through the testimony of the parties and a great many witnesses, whose testimony covered conditions and events spanning more than half a century and whose bias or interest in the outcome of this case were in some instances obvious, and in other instances perhaps not quite so obvious. Furthermore, in addition to those reasons for affirmance expressed by Judge Ervin, I find the record lacking in “clear and positive proof” that the purported possession by appellants’ predecessor in title prior to 1939 was adverse and hostile to the legal titleholder so as to compel a different result, even if the other requirements of adverse possession were met by proof meeting the test of certainty required in such cases.

BOOTH, J.,

dissenting:

I do not agree that the law requires fencing of plaintiffs’ 50-acre tract of land, title to which is not in dispute, in order to establish title by adverse possession to a disputed boundary strip on the northern perimeter of the tract. Equally unacceptable is the alternative proposed of fencing “on all four sides” of the disputed boundary strip. There is no law in Florida supporting these interpretations of Florida Statutes § 95.18. That statute, derived from a New York statute, requires, as to fencing that the disputed property be “protected by substantial enclosure.” New York cases hold that this language requires, in a boundary dispute, that the protective enclosure be one which incorporates the disputed strip of land into the larger tract.

In Knowles v. Miskela, 11 A.D.2d 589, 200 N.Y.S.2d 713 (1960), where the disputed boundary line was protected by wire fence, there was a lake on the west side, a fence on the south, and other land of the claimed adverse occupant to the north, the statutory requirement was met. In Post v. Irons, 36 A.D.2d 630, 353 N.Y.S.2d 572 (1974), the court ruled that the statute was complied with where the strip in dispute “was available only from plaintiff’s lot” by reason of fences. Thus, where the disputed strip is only accessible by scaling fences or trespassing over land of the plaintiffs, the statutory requirements are met. In McCosker v. Rollie Estates, Inc., 7 A.D.2d 865, 182 N.Y.S.2d 35 (1959), the court ruled plaintiff had obtained title by adverse possession without color of title, holding:

The entire 50-foot strip was enclosed as part of the main property by a hedge wall, which is sufficient to constitute an enclosure within the meaning of Section 40 of the Civil Practice Act.

At common law and in Florida, the term “enclosure” is not limited to a fence, but includes other barriers, both natural and manmade. What is required to constitute a substantial enclosure depends on the nature of land claimed and the particular facts of each case. The enclosure must be “commensurate with the attending circumstances,” as was held in Baugher v. Boley, 63 Fla. 75, 58 So. 980, 984 (1912):

The requirement of the statute that the land shall be “protected by substantial inclosure,” to acquire title by adverse possession without color of title, should be applied with reference to the facts and circumstances of each case as it arises for adjudication.
. [I]t is manifest that there was for the full statutory period a conspicuous effort to maintain a fence around the land commensurate with the attending circumstances for the obvious purpose of exercising rights of ownership of the land and to use the land in a way to which it was suited.

The rule of Baugher v. Boley, supra, requires consideration of the circumstances of each case and common sense application of the “substantial enclosure requirement.” It would violate that rule to require that a boundary strip be completely and separately fenced off, because, unlike possession of an entire tract of land, possession of a boundary area is invariably an adjunct to the possession of a larger adjoining tract. Separate fencing would here, and in most instances, be inconsistent with normal use. It is not required under the statute.

A requirement that there be a fence around the entire tract in order that a disputed boundary strip be “protected by substantial enclosure” is equally contrary to the rule, since it takes no consideration of the differences between possession of a boundary and of an entire tract, and because it requires enclosure of large acreages not in dispute.

The dispute in the instant case arose from a recent survey which the trial court found established a “jog” in the section line dividing the lands of the plaintiffs and those of the defendants and located the true line some 194 feet further south. Plaintiffs’ predecessors have been in actual possession of the property since the last century. Adverse possession without color of title is claimed to that portion of the boundary strip which was cultivated and maintained under fence for a seven-year period prior to the 1939 requirement of payment of taxes. Plaintiffs’ predecessors’ good-faith reliance on the regular section lines, both in payment of taxes and deeding of the property from generation to generation, prevents their claim from being under color of title. Due to the jog in the section line, the disputed strip is not included in the description used for deeds and payment of taxes.

William Spears, ancestor of Audrey Spears Grant, took title on January 15, 1863, to 60 acres of land located in the northeast quadrant of Section 13, Township 3 South, Range 2 West. Adjoining immediately to the north and described as located in Section 12 of the same township and range is the land owned, since 1871, by members of the Strickland family. Both families resided on their respective properties and farmed their land. A country road, described as a “wagon trail” originally, has, for time immemorial, run east and west between the properties roughly following for half a mile or so the supposed section line dividing Sections 12 and 13. The supposed location of the section line between Sections 12 and 13 coincided, and met on the east in a common corner with the east-west section line dividing Sections 7 and 18, further substantiating the belief that this was the true line. For many years prior to 1939, and at least as early as 1910, the Spears family had erected and maintained a substantial fence along the northern boundary of their property and just south of the country road. Other fences and cultivating of the property are described more fully by testimony to follow.

Further history of the property shows that William Spears deeded the land to Daniel Spears in 1877, and Daniel’s wife, Rebecca, deeded it after her husband’s death to her son, J. F. Spears. Plaintiff Audrey Spears Grant is the present title holder.

In 1888, Daniel and Rebecca Spears deeded two acres of property in the Northeast corner of Section 13 to the Trustees of the Whiddon Lake Baptist Church. This property had been maintained under a succession of fences. Included within the property deeded to the church and presently existing as it has for more than 90 years, is a graveyard. The order of the trial court locates the section corner inside the graveyard. That determination is not an issue on this appeal, but it should be noted that, for many years, the presumed northeast corner of Section 13 was located at the northeast corner of the property occupied by the church and cemetery. The deeding of this property to the church by the Spears, followed by the use and occupation of the property by Spears’ grantee, was hostile to the title of the Stricklands to the disputed strip.

The trial court determination, based on conflicting evidence of the location of the line between Sections 12 and 13, and its finding that there was no boundary by agreement or acquiescence are not issues on appeal. The remaining question, and the sole issue presented, is the trial court’s determination that there had been no acquisition of title by adverse possession to the disputed boundary strip.

In affirming the trial court, this court imposes upon the plaintiffs here a burden beyond that required by the law of Florida, and fails to accord due consideration to the uncontradicted testimony of fencing and cultivating beginning at least as early as 1910.

The testimony of Plaintiff Audrey Spears Grant, who was born and reared on the property and married and moved away in 1931, was as follows:

Q Was there a fence all the way around your property?
A Yes.
Q On all sides?
A Right.
Q And what type fence was that?
A Well, there was a wire fence on the west side. There was an old, one of those old picket fences on the west side. My brother lived just south of us and between us, our property and his property was one of those old picket fences. I don’t know what the name is of them. And then on the east side from where the old barn, and the garden was — the garden had a high picket fence around it and there down to my brother’s property was rail.

Paul Grant testified that he became familiar with the property several years prior to his marriage to Audrey in 1931. During that period, there was a fence around the property, although it was dilapidated in places, and the property was farmed. He testified as to the fences on the west end of the disputed strip between Spears’ farm and that of Thompson, and the old fence on the east end of the strip between the churchyard and the Spears’ farm. The foregoing testimony of plaintiffs is uncon-tradicted and is supported by testimony of non-party witnesses, such as Sidney Dur-rance and Ralph Strickland.

Sidney Durrance, age 76, testified that he lived down the road from the disputed strip from 1912 to 1921, on what was known as the “old Durrance place,” a farm three-quarters of a mile west of the Whiddon Lake Church. He testified that, with the exception of “Green’s flat rock,” the entire property was cultivated and fenced during the time he lived down the road from the property. He specifically testified that the land south of the road was cultivated in corn and peanuts and fenced during that time.

Ralph Strickland, 65-year-old first cousin of defendants, has been familiar with the property all his life, and his own property is on the disputed section corner north of the road. He testified as to the fences around the Spears’ property. The only fence he could “not recall” was the one on the northern boundary. The existence of this fence protecting the boundary strip for the critical time period is conceded.

The critical time period in this case was from 1910, when testimony established fences and cultivation of the property, to 1939, when the statute requiring return of property for taxes became effective. Uninterrupted actual possession for any seven-year period within those years was sufficient to give title to the disputed strip good as against all the world, including the legal title holder. Testimony of witnesses who were familiar with the property in the 1940’s and 1950’s, after farming ceased and the fences had disappeared, is not in conflict with testimony as to fences existing two decades earlier and does not affect the possession established or title acquired prior to 1939. It is also to be noted that, in the ’50’s, the road adjacent to the Spears/Grant northern fence line was widened and moved further to the south, destroying what was left of the boundary fence, but not affecting, of course, any boundary previously established by adverse possession.

I do not agree that the evidence on cultivation and fencing was conflicting. On the contrary, the evidence pertinent to the years in question is undisputed, and thus renders applicable the rule, as most recently stated, in Edwards v. Hardin Properties, 313 So.2d 82, 84 (Fla. 2d DCA 1975):

On the precise point, and apart from appellant’s [adverse claimant’s] own testimony, it was undisputedly established by two disinterested, native and resident septuagenarians, . . . that such land has been continuously occupied and cultivated as a small family-type farm, raising livestock and vegetables since 1910 and was, during that time and indeed up to the present time, substantially enclosed by fencing.
Now we are aware, of course, that the trial court, as the trier of fact, has the power and duty to evaluate the credibility of the witnesses. But it is also true that the reasonable, uncontradicted sworn testimony of a witness cannot and must not be ignored unless some reason appears why his testimony may not be credible. Here, there is nothing appearing which would operate to discredit either of the aforesaid witnesses. The record shows them to be quite alert and aware despite their ages, they testified as to matters of fact, not opinion, and no attempt was made by appellee either in cross-examination or otherwise to impeach them. Their testimony should affirmatively have been credited.

In the instant case, the location of the correct section line was determined by court order in 1979, 117 years after plaintiffs’ predecessors took title and established their homestead and farm on the property. Defendants’ forebearers lived and farmed across the road for almost as many years. Both families acted in good faith in their holding out, use and occupancy of their respective properties. The Spears family paid taxes on their lands and deeded lands believed to be in Section 13. These grantees have also been in possession for many years. The community at large considered the land south of the road to belong to the Spears. Grantees of the Spears, in possession for many years, relied on the Spears’ actual long-standing possession in purchasing property which was included land within the now disputed strip. There was continuous, actual occupancy of the property as a family farm, an occupancy which extended to and included the disputed strip. Now, more than half a century after farming has ceased and fences are gone, the legal title holders assert ownership based on a recent survey and determination by the court of a jog in the section line. Under these circumstances, the law of adverse possession operates, not as a punishment to the legal title owner but to protect the long-standing and, in this case, good faith, actual possession of the disputed property.

I dissent.

      . Section 95.18(1), Fla.Stat. (1975).

      . Hyer v. Griffin, 55 Fla. 560, 46 So. 635 (1908).

      .Section 95.18(2), and see § 95.16(2).

      . Ch. 19254, Section 1, Laws of Florida (1939).

      . Compare, Kerrigan v. Thomas, 281 So.2d 410, 414 (Fla. 1st DCA 1973).

      . Downing v. Bird, 100 So.2d 57, 64 (Fla.1958).

      . Id.

      . The dissent’s assertion that it is unfair or without basis in Florida law to require either that the boundary strip be “substantially enclosed” or that the appellants’ lands contiguous to the disputed strip be substantially enclosed with it is not well taken. Proof of adverse possession under color of title is met with proof that lands of the claimant contiguous to the disputed strip were substantially enclosed with the disputed strip for the statutory period. Seaboard Air Line R. Co. v. California Chemical Co., 210 So.2d 757 (Fla. 4th DCA 1968); Kerrigan v. Thomas, 281 So.2d 410 (Fla. 1st DCA 1973); Meyer v. Law, 287 So.2d 37 (Fla.1973); 1974 Laws of Florida, § 74-382; Seddon v. Harpster, 369 So.2d 662, 665 (Fla. 2d DCA 1979). Surely proof requirements under § 95.-18 are no less exacting.

      . Webster’s Third New International Dictionary (Unab. ed. 1967).

      . See Baugher v. Boley, 63 Fla. 75, 58 So. 980 (1912); Porter v. Lorene Invest. Co., 297 So.2d 622 (Fla. 1st DCA 1974).

      . Tampa Mortg. & Title Co. v. Smythe, 109 So.2d 202 (Fla. 2d DCA 1959).

      . Baugher v. Boley, supra, at 984.

      . The question of whether a fence constitutes a substantial enclosure is normally one for the jury. Wilson v. Tanner, 346 So.2d 1077, 1078 (Fla. 1st DCA 1977).

      . Section 95.13.

      . Florida Statutes § 95.19 (now § 95.18), as it provided at all times pertinent here:
      For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only:
      (1) Where it has been protected by substantial enclosure; or,
      (2) Where it has been usually cultivated or improved;

      . 7 Powell, Real Property, § 1018, at Note 19 (1979).

      .New York Statute, Real Property Actions and Proceedings Law, § 522 (formerly § 40, Civil Practice Act):
      For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others:
      1. Where it has been usually cultivated or improved.
      2. Where it has been protected by a substantial inclosure.

      . Since 1901, the time period for adverse possession without color of title has been seven years. Chapter 4916, Laws of Florida.

      . Order of the trial court, in pertinent part, as follows:
      In view of the court’s finding as to the true boundary line, the lands in dispute necessarily lie in Section 12, and to such lands the plaintiffs do not have color of title. The issue then, is whether or not the plaintiffs have proved that for not less than seven years that they or their predecessors in title have erected a substantial fence around the disputed property, or have usually cultivated or improved the whole of the property continuously so as to acquire title by adverse possession without color of title. The court finds that there has been no substantial enclosures [sic] around the property nor has the property been usually cultivated or improved.

      . Osceola Fertilizer Co. v. Beville, 86 Fla. 479, 98 So. 354, 356 (1923):
      The policy of the law is not to punish those who neglect to assert their rights, but to protect those who have continued in possession of lands for the time specified by statute, under or without color of title.


source: Caselaw Access Project

author: LARRY G. SMITH, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Suzanne SANTAMARIA, Appellee.
    No. NN-350.
    District Court of Appeal of Florida, First District.
    June 30, 1980.
    Rehearing Denied July 29, 1980.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, for appellee.
   LARRY G. SMITH, Judge.

The State appeals an order suppressing certain drugs and paraphernalia seized from appellant’s apartment by police who entered for the purpose of arresting a third party robbery suspect. The State argues for reversal on the contentions that probable cause existed for the arrest of the third party, and the entry of appellant’s apartment was authorized under the “officer’s peril” exception to the “knock and announce” requirements of Section 901.19(1), Florida Statutes, as elucidated in Benefield v. State, 160 So.2d 706 (Fla.1964). We affirm on the authority of the decision of the Supreme Court of the United States in Payton v. New York, and Riddick v. New York, - U.S. -, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

An officer of the Jacksonville Police Department learned from a confidential informant that a robbery suspect, Mitch Tun-stall, was in appellant’s apartment. Details of the robbery and a description of the suspect given by the confidential informant were verified by the officer by contacting the detective who was in charge of the robbery investigation. Three officers then proceeded to appellant’s apartment, where they encountered a person leaving the apartment building who informed them that the suspect was in appellant’s apartment shooting drugs. The suspect’s car was observed parked nearby. One officer went to the rear of the apartment, two others went to the front door. Their knock at the door was answered by a young man to whom the officers stated their authority and asked whether Mitch Tunstall was there. The young man stated he did not know, but indicated he would check and turned to reenter the interior of the apartment. The officers testified that they “heard a noise” and proceeded to follow him into the apartment, and into a bedroom, where they found Mitch Tunstall. They also observed marijuana and other drugs in the living room area and in the bedroom. Tunstall, appellant, and the young man were arrested and the drugs were seized.

We agree that the officers had probable cause to arrest the robbery suspect, and probable cause to believe that he was inside appellant’s apartment. They also had additional knowledge that Tunstall was a convicted felon, a known narcotics user, with a record of arrests for sale and possession of controlled substances, and for possession of a firearm by a convicted felon. However, our inquiry into the circumstances to determine whether the officers’ entry of the apartment was justified under an exception to the knock and announce rule is rendered moot by the Supreme Court’s opinion in Payton v. New York, supra, which imposed an arrest warrant requirement upon police officers who enter a suspect’s home in order to make a felony arrest, in the absence of exigent circumstances. Although the court in that case was dealing with an arrest in the suspect’s home, and did not purport to answer questions concerning the authority of the police, without either a search or arrest warrant, to enter a third party’s home to arrest a suspect, we have no reason to believe that any less stringent rules would apply to police entry of a third party’s home than to the home of the suspect himself.

Here, the trial court clearly based the suppression order upon the absence of a warrant, and the absence of exigent circumstances which would justify entry of appellant’s home without a warrant in order to make the arrest.

The order appealed from is therefore AFFIRMED.

ERVIN and BOOTH, JJ., concur.

      . The trial judge in the case under review exhibited remarkable foresight in basing his decision in large part upon the yet to be announced rule of Payton. His written order granting the motion to suppress contains express findings that the State did not prove the existence of exigent circumstances which would have warranted entry of appellant’s premises; that the officers were not given consent to enter or search appellant’s apartment; and that entry of appellant’s apartment without an arrest or search warrant was not authorized by law. The basis for the suppression was further clarified at a subsequent hearing by the trial judge’s statement that he found the officers had better than two hours to obtain an arrest warrant, adequate time within which to obtain an arrest warrant so as to lawfully enter appellant’s apartment.

      . “Nor do these cases raise any question concerning the authority of the police, without either a search or arrest warrant, to enter a third party’s home to arrest a suspect.” Payton v. New York,- U.S. -, at-, 100 S.Ct. 1371, at 1378, 63 L.Ed.2d 639.


text:
    LLERA REALTY, INC., J. M. Llera, Coral Realty Corp. and Alberto Trelles, Appellants, v. BOARD OF REAL ESTATE (formerly Florida Real Estate Commission), Appellee.
    No. 79-1107.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Rehearing Denied July 31,1980.

      Lopez & Harris and Peter M. Lopez, Miami, for appellants.
    Howard Hadley and Kenneth M. Meer, Orlando, and Salvatore A. Cappino, for ap-pellee.
    Before NESBITT, DANIEL S. PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN (Ret.), Associate Judge.

This appeal by respondents Llera Realty, Inc., J. M. Llera, Coral Realty Corp. and Alberto Trelles is brought to review the administrative decision of the Florida Real Estate Commission (now known as the Board of Real Estate), which suspended the licenses of the respondents for thirty days. The complaint filed by the Commission charged that the respondents had violated Section 475.42(l)(j), Florida Statutes (1977), by filing a notice of lis pendens on real estate in a court action brought to recover a real estate commission.

The hearing officer entered a recommended order finding that the respondents had, in fact, recorded a lis pendens on real estate in order to collect the commission, and concluding that as a matter of law, the cited section was unconstitutional as applied in this case because “[o]n its face and without such limitations, the statute has a chilling effect on the right of the broker or salesman to seek redress in the courts because persons subject to the statute may have their license revoked or suspended and be prosecuted criminally.”

The Commission rejected that portion of the hearing officer’s conclusions of law which held the application of the statute to the respondents to be unconstitutional and, accordingly, the respondents were found guilty and their license suspended for thirty days. We affirm.

The only substantial question argued in this court is whether the classification by the statute of real estate brokers and salesmen as a class of persons who may not use the filing of a lis pendens in connection with a civil lawsuit filed in order to collect a real estate commission is a classification so unreasonable that it amounts to a deprivation of the right of brokers and salesmen of free access to the courts. It is apparent that the classification is not unreasonable because real estate brokers and salesmen are privileged by the statutory law of this state in the collection of commissions. Section 475.41, Florida Statutes (1977), in effect, provides that only a real estate broker who is properly registered “. . .at the time the act or service was performed” may maintain a court action for the collection of a commission for the sale of real estate. As stated in Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 425 (1927), with regard to the real estate business, “No business known to modern society has a longer or more respectable history.” In this regard, the statutory law of this state demands a high standard of those engaging in the real estate business. Sections 475.17 et seq., Florida Statutes (1977), place a high standard on applicants for registration as real estate brokers or salesmen; Section 475.25, Florida Statutes (1977), through the onus of revocation or suspension of registration, demands an exemplary level of behavior within the profession; Section 475.42, Florida Statutes (1977), enumerates various violations and the consequent penalties to be exacted against those who are not properly registered; and Sections 475.482 et seq., by creating the Florida Real Estate Recovery Fund to reimburse persons who have suffered monetary damages at the hands of those registered under this chapter, demonstrate this state’s recognition of the sensitive and privileged position of those engaged in real estate to the public at large. Furthermore, it is well-established by the case law of this state that real estate brokers and salesmen occupy a position of confidence toward the public. See the discussion in Foulk v. Florida Real Estate Commission, 113 So.2d 714, 717 (Fla.2d DCA 1959). And see Gabel v. Kilgore, 157 Fla. 420, 26 So.2d 166 (1946); and Ahern v. Florida Real Estate Commission ex rel. O’Kelley, 149 Fla. 706, 6 So.2d 857 (1942).

The work of real estate brokers and salesmen is intimately connected with the transfer of title to real estate. It is natural that their experience and knowledge in such matters should be greater than that of the people they serve in their profession. The denial to this privileged group of the availability of a lis pendens when used to collect a commission on the sale of the same real estate on which they have secured, or have attempted to secure, the transfer of title is not the denial of a right of access to the courts. It is simply the denial of a special tool which might be misused by some members of this privileged group to the disadvantage of the public.

Finding no error, we affirm the administrative decision.

      . § 475.42(l)(j), Fla.Stat. (1977), provides:
      “No real estate broker or salesman shall place, or cause to be placed, upon the public records of any county, any contract, assignment, deed, will, mortgage, lien, affidavit, or other writing which purports to affect the title of, or encumber, any real property . maliciously or for the purpose of collecting a commission, or to coerce the payment of money to the broker or salesman or other person, or for any unlawful purpose.”


author: FRANK D. UPCHURCH, Judge.

text:
    Marvin Lee HOLT, Appellant, v. STATE of Florida, Appellee.
    No. 79-1064/T4-550.
    District Court of Appeal of Florida, Fifth District.
    July 2, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Div., Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Judge.

Appellant has appealed a judgment and sentence of the Circuit Court for Seminole County revoking his probation. The Public Defender has filed an Anders motion and brief, representing to this court that no reversible error appears and requesting leave to withdraw as counsel. This court granted appellant thirty days to file a brief in his own behalf. Appellant has written to this court contending that he was mistakenly sentenced again without credit for time served.

On November 15, 1977, appellant was placed on probation for a term of five years. On February 13, 1979, he was charged with violation of his probation by committing a burglary and failing to pay the costs of his probation.

On appeal of a probation revocation, the only question is whether the court abused its discretion. Bernhardt v. State, 288 So.2d 490 (Fla.1974). The burden is on the State to show that a probationer was able to make such payments as may have been required by the judgment. See Murrell v. State, 364 So.2d 96 (Fla. 4th DCA 1978). Testimony was received reflecting that appellant had several jobs, and had offered to pay the entire amount after he was charged with the probation violations. His probation officer testified that based upon appellant’s income and expenses, he had the ability to pay the supervision costs. As to the other violation, an eyewitness testified that appellant entered her home and attempted to take her purse. This testimony established the elements of burglary and was sufficient to show a violation of the probation requirement “to live and remain at liberty without violating any law.” A formal conviction of a crime is not essential before probation can be revoked. Bernhardt v. State at 501.

Appellant is mistaken as to the failure of the court to consider the time served in the sentence. The record reflects that the trial judge announced that appellant was sentenced to five years with credit for the time already served, including the time served under the order of probation. The judgment and sentence reflects 192 days credit for time served was included. There is no error.

AFFIRMED.

COBB and SHARP, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1976).


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Eugene CLEMONS, Individually, on behalf of himself and his wife, Mary Clemons, and as Personal Representative of the Estate of Subrina Clemons, Deceased, Appellant, v. FLAGLER HOSPITAL, INC., a corporation, Hartford Accident & Indemnity Company, a corporation, and Insurance Company of North America, a corporation, Appellees.
    No. 79-353.
    District Court of Appeal of Florida, Fifth District.
    July 2, 1980.

      Althea M. Lachicotte of Evans & Lachi-cotte, P.A., Jacksonville, for appellant.
    John N. Bryant of Boyd, Jenerette, Leemis & Staas, P.A., Jacksonville, for ap-pellees.
   SCHWARTZ, ALAN R., Associate Judge.

The plaintiff-appellant’s daughter died on February 16, 1972, allegedly as a result of the malpractice of the Flagler Hospital. On February 15, 1974, within the two-year limitation period provided by section 95.-11(4) and (6), Florida Statutes (1971), the plaintiff timely brought suit against the hospital alone in the St. Johns County Circuit Court. On June 18, 1979, he filed a second amended complaint in which, for the first time, the hospital’s liability insurance carriers, Hartford Accident & Indemnity Co. and Insurance Company of North America, were joined as parties-defendant. The trial judge dismissed Hartford and IN A on the ground that the statute of limitations had run as to those defendants and the plaintiff has appealed. We reverse.

It is undisputed that the only actual or potential ground of the insurers’ liability to the plaintiff is the entirely derivative one to indemnify the hospital for any judgment rendered against it. That cause of action does not accrue, for limitations purposes, until the entry of such a judgment. See Continental Casualty Co. v. Florida Power & Light Co., 222 So.2d 58 (Fla. 3d DCA 1969); 54 C.J.S. Limitations of Actions § 141 (1948) and cases collected. Consequently, the statute of limitations has not yet even begun to run against the carriers. In Davis v. Williams, 239 So.2d 593, 595 (Fla. 1st DCA 1970), the court squarely so held in ruling on the identical issue presented here:

The statute of limitations on which ap-pellee relies is applicable to actions in tort resulting in death caused by the wrongful act of the defendant. Appellant’s cause of action, if any, against appellee insurance company does not arise in tort but arises out of contract, and does not accrue until after appellant has secured a judgment against the alleged defendant tort-feasor to whom appellee issued its policy of professional liability insurance. It is therefore apparent that appellant’s cause of action to impose liability on appellee under the insurance policy issued by it has not yet accrued and, therefore, any statute of limitations which does not commence to run until the accrual of the cause of action has not yet been activated.

It is of course true that, under the decisional law of Florida, a liability carrier may be joined as a “real party[-defendant] in interest” in an action against its insured. Beta Eta House Corp., Inc. of Tallahassee v. Gregory, 237 So.2d 163 (Fla.1970); Shingleton v. Bussey, 223 So.2d 713 (Fla.1969); Florida Rules of Civil Procedure 1.210. As the Supreme Court recently emphasized, however, in Markert v. Johnston, 367 So.2d 1003 (Fla.1978), this doctrine, which permits joinder at any stage of the proceedings, is one merely of procedure which does not create or affect any substantive rights or privileges. Accord, Kilpatrick v. Boynton, 374 So.2d 557 (Fla. 4th DCA 1979). Thus, the plaintiff’s right to sue a liability carrier directly does not change the established rule that a cause of action does not arise against it until the entry of judgment. Consequently, no such joinder can be barred by the statute of limitations.

For these reasons the judgment below is reversed and the cause remanded with directions to deny the insurers’ motion to dismiss and for further proceedings consistent with this opinion.

Reversed and remanded.

COBB and SHARP, JJ., concur.

      . The notice of appeal was initially directed to a non-appealable order which merely granted the insurers’ motion to dismiss. At the oral argument, we called this to the attention of counsel and granted the appellant leave to secure and file an appealable final judgment. That has been done. We now visit the earlier notice of appeal upon the subsequently entered judgment and proceed to a consideration of the merits. Williams v. State, 324 So.2d 74 (Fla.1975); Allied Fidelity Insurance Co. v. State, 384 So.2d 727 (Fla. 3d DCA 1980) (No. 79-1521, opinion filed June 10, 1980); W.B.D., Inc. v. Howard Johnson Company, 382 So.2d 1323 (Fla. 1st DCA 1980); Sloman v. Florida Power & Light Co., 382 So.2d 834 (Fla. 4th DCA 1980).

      . The attorney for the carriers conceded as much at the oral argument when he agreed that it would not violate the statute of limitations initially to join the companies, for example as garnishees, only subsequent to a judgment rendered even years from the present time.

      . This holding in Davis is authoritative on the point notwithstanding that the court also relied on another ground for its decision. “[W]here a decision rests on two or more grounds, none can be relegated to the category of obiter dictum.” Woods v. Interstate Realty Co., 337 U.S. 535, 537, 69 S.Ct. 1235, 1237, 93 L.Ed. 1524 (1949); See Parsons v. Federal Realty Corp., 105 Fla. 105, 143 So. 912 (1932); Carol City Utilities, Inc. v. Dade County, 183 So.2d 227 (Fla. 3d DCA 1966).

      . The provisions of section 768.47(1), Florida Statutes (1977), formerly section 768.134(1), Florida Statutes (1975), as adopted as Florida Rules of Civil Procedure 1.450(e) in Carter v. Sparkman, 335 So.2d 802, 806 (Fla. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977), which precluded references to insurance in malpractice trials, are not applicable because the cause accrued, and the initial complaint was filed before July 1, 1975, the effective date of the medical mediation act. See section 768.47(3). For this reason, we do not consider the effect of the invalidation of section 768.44 by Aldana v. Holbu, 381 So.2d 231 (Fla.1980) upon the other portions of the act.

      .The cases cited by the appellees, Doyle v. Shands Teaching Hospital and Clinics, 369 So.2d 1020 (Fla. 1st DCA 1979); Click v. Pardoll, 359 So.2d 537 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1122 (Fla.1979); Garrido v. Markus, Winter & Spitale Law Firm, 358 So.2d 577 (Fla. 3d DCA 1978) and Galuppi v. Viele, 232 So.2d 408 (Fla. 4th DCA 1970), cert. denied, 238 So.2d 109 (Fla.1970), hold only that a new party may not be added after the statute of limitations has already expired as to that defendant. They are totally inapplicable to this situation.


author: PER CURIAM.

text:
    Flenoil CROOK, Appellant, v. STATE of Florida, Appellee.
    No. LL-291.
    District Court of Appeal of Florida, First District.
    July 3, 1980.
    Rehearing Denied Aug. 8, 1980.

      Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Flenoil Crook was charged with burglary with a firearm and aggravated battery and was found guilty by a jury of attempted burglary with a firearm and aggravated battery. He challenges his sentence of ten years for the attempted burglary and urges that the maximum sentence for his offense is five years. We agree.

Section 810.02, Florida Statutes (1977), provides that burglary with a firearm is a first degree felony. The statute governing attempts to commit an offense provides generally that an attempt to commit a first degree felony constitutes a second degree felony, Section 777.04(4)(b), Florida Statutes (1977), but the offense of attempted burglary is an exception to the general provision because Section 777.-04(4)(c), Florida Statutes (1977), provides:

If the offense attempted . . . is a felony of the second degree or any burglary, the person convicted shall be guilty of a felony of the third degree . (emphasis supplied)

McQuay v. State, 368 So.2d 908 (Fla. 1st DCA 1979). A third degree felony is punishable by a term of imprisonment not exceeding five years. Section 775.082(3)(d), Florida Statutes (1977).

The State contends that, although the penalty for attempted burglary is otherwise five years, under Section 775.087(1), Florida Statutes (1977), the use of a weapon or the commission of an aggravated battery during the commission of the felony reclassifies the offense from a third degree felony to a second degree felony, which is punishable by a term of imprisonment not exceeding fifteen years. Section 775.082(3)(c), Florida Statutes (1977). That this is erroneous can be seen by a careful reading of Section 775.087(1):

Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified . . . . (emphasis supplied)

That sentencing provision does not apply when the use of a firearm is an essential element of the offense. Here, the offense was attempted burglary with a firearm, and this section of the enhanced penalty statute does not apply. See Fowler v. State, 375 So.2d 879 (Fla. 2d DCA 1979). Thus, the maximum sentence allowed by statute for this offense is five years.

There is another error in the sentencing, however, which neither party to this appeal called to our attention. Section 775.087(2), Florida Statutes (1977), requires that any person convicted of attempted burglary who had a firearm in his possession shall be sentenced to a minimum term of imprisonment of three years, during which time he shall not be eligible for parole or statutory gain-time. This mandatory-minimum penalty must be assessed at resentencing.

We find no merit in Crook’s challenge to the sufficiency of the evidence to support the jury verdict of attempted burglary. We do note that the written judgment erroneously shows the offense of conviction to be burglary rather than attempted burglary. The judgment must be corrected and, as corrected, is affirmed.

Accordingly, the judgment, as corrected, is AFFIRMED. The sentence is VACATED and REMANDED for resentencing in accordance with this opinion.

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

      . There is no challenge to the judgment or sentence on aggravated battery.


author: LARRY G. SMITH, Judge. WENTWORTH, Judge,

text:
    PLANTATION CONSTRUCTION COMPANY and Michigan Mutual Insurance Company, Appellants, v. Terence AYERS, Appellee.
    No. QQ-400.
    District Court of Appeal of Florida, First District.
    July 3, 1980.

      Gerald T. Nolan of Nolan & Usdan, Fort Lauderdale, for appellants.
    Kevin A. Malone of Krupnick & Campbell, Fort Lauderdale, for appellee.
   LARRY G. SMITH, Judge.

The employer and carrier appeal a worker’s compensation order finding that claimant suffered a 10% permanent partial disability of the body as a whole. Appellants contend that the evidence does not support the Deputy Commissioner’s finding of physical impairment upon which he based the award, and in view of the Deputy Commissioner’s further specific finding that the evidence is insufficient to show a loss of wage earning capacity, the award of 10% permanent partial disability was error. We agree and reverse.

While working as a diver laying utility pipes for his employer claimant developed ear infections, caused by contact with bacteria in the water, which were so severe as to require medical treatment and hospitalization. He also developed symptoms requiring psychiatric evaluation and treatment, and there was evidence of some memory loss or dysfunction after his recovery from the ear infections. Although no medical witness testified that claimant had any sort of permanent disability related to his ear condition, a treating physician, Dr. George A. Burkhardt, testified: “I suppose it depends upon your definitions of permanent disability. He is in my opinion disabled only as it relates to exposure to water in his ears.” After a hearing, the Deputy Commissioner entered an order finding that the claimant “has suffered a permanent physical impairment in that he is no longer able to work in proximity to water.” Upon the basis of this finding the Deputy Commissioner determined that claimant suffered a permanent partial disability of 10% of the body as a whole.

We find no basis in the record upon which to sustain the award. There was no scheduled injury under Section 440.15(3)(m) or (s), Florida Statutes, since there is no testimony or finding of a permanent hearing loss resulting from the ear infection. Furthermore, these infections have been successfully treated and cured, so that it cannot be contended that claimant is suffering from an “occupational disease,” under Section 440.151, Florida Statutes.

Claimant’s treating physician recommended that he discontinue employment as a diver, because of the severity of the infections produced by repeated and prolonged exposure to water. However, we are unable to accept the Deputy Commissioner’s apparent conclusion that the likelihood of a further recurrence of bacteria-caused ear infections, if claimant continues to dive, may be classified as a “physical impairment.” Appellee’s attempt to find support for this conclusion in Martinez v. Robert Weber Construction Co., 181 So.2d 645 (Fla.1966), is unavailing. In Martinez, a carpenter who suffered a head injury was required to accept a job at lower wages in order to avoid headaches produced by loud noises from construction equipment being used at his regular employment sites. However, the award of benefits was based upon impairment of his wage earning capacity, a factor that distinguishes Martinez from this case, since here the Deputy Commissioner specifically found no loss of wage earning capacity. The same factor also distinguishes Tropicana Pools, Inc. v. Truex, 287 So.2d 71 (Fla.1973), and Buro v. Dino’s Southland Meats, 354 So.2d 874 (Fla.1978), cited by appellee. See also Williston Welding Fabricating Co. v. Brooks, IRC Order No. 2-3167, (1977), in which the Commission held it was error to award 25% permanent partial disability based upon physical impairment where no support of a disability rating above 5% was indicated by the medical evidence. There the Commission stated:

The Judge in this case found no wage earning capacity loss so any finding of disability greater than the 5% indicated by the medical evidence should not only have solid foundations in competent substantial evidence from the record but be fully and logically demonstrated in the Order.

We acknowledge the holding in Tropicana that an award of partial disability may be sustained despite contrary testimony by the treating physician, and we acknowledge also the principle stated in Magic City Bottle & Supply Company v. Robinson, 116 So.2d 240 (Fla.1959), that the opinions of medical experts in worker’s compensation cases are not conclusive, and in some cases the Deputy Commissioner may disregard the opinions of experts, and give greater weight to lay testimony, or demonstrative evidence. We simply hold that, under the circumstances presented here, the mere inability to further engage in diving activities is not a “physical impairment” as the term is used in Section 440.15(3)(u), Florida Statutes. There is no evidence here of a continuing disease or disorder, nor that claimant will suffer any disability in the future, so long as he refrains from diving. We agree, of course, as did the Court in the Martinez case, that the occupationally related limitation upon claimant’s activities would be a factor bearing upon determination of his loss of wage earning capacity. However, it appears that the Deputy Commissioner gave, consideration to the evidence on this issue and found adversely to the claimant. His conclusion on this point has not been made the subject of a cross-appeal. Notwithstanding the failure of appel-lee to cross-appeal, we have examined the record in the light of the ruling in Palm Beach Junior College v. Aho, IRC 2-2985, (1976), cert. den. 339 So.2d 1171 (Fla.1976), that if the order of the Deputy Commissioner is based upon erroneous grounds, but the result is nevertheless justified, the order should be affirmed. In order to justify the result here, we would be compelled to completely disregard the Deputy Commissioner’s finding of no wage earning capacity loss, as well as the evidence supporting this finding. This we are unable to do.

As to the remaining issues, appellee has stipulated to the date November 2, 1978, as the date of maximum medical improvement as contended by appellant, and our reversal of the award precludes recovery of attorney’s fees and costs to the extent that the same are predicated upon the order appealed.

This cause is REVERSED and REMANDED.

McCORD, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting.

The medical evidence does in my opinion show that, as a result of his 1978 occupational exposure, claimant suffered a continuing residual disorder consisting of a physically impaired ability to resist water-borne infection in his ears. I would therefore affirm the award of 10% permanent partial disability compensation, even assuming that ordinary physical impairment standards apply to disablement from occupational disease. § 440.151(3), Florida Statutes. See Manzo v. Gem Tile Corp., 3 FCR 187 (1958); Meyer v. Thomson, 4 FCR 322 (I960).

The award may also be supported by the record evidence, from the employer utilizing employees in the occupations of pipe-laying and truck driving, that there existed an earning capacity differential (an hourly rate of $4.75 compared with $4.00) greater than 10% in favor of the former employment for which claimant was no longer fit. The deputy’s finding against earning capacity loss would appear, on the record before us, to be supported primarily by an erroneous assumption that actual earnings at the time of the award would control the issue. Absence of a cross appeal on this issue does not preclude appellee’s reliance on the record in this respect to sustain the compensation award. I would affirm.

      . No question is raised with respect to any potential impact of the final sentence of § 440.-25(3)(b), Fla.Stat., as amended by § 8, Chapter 78-300, Laws of Florida.


author: DANIEL S. PEARSON, Judge.

text:
    Joan Adkins FICKLE, Appellant, v. Milton ADKINS, Appellee. Joan P. FICKLE, f/k/a Joan P. Adkins in her own behalf and on behalf of SLS & H, Appellants, v. Milton R. ADKINS, Appellee.
    Nos. 79-2168, 79-2196.
    District Court of Appeal of Florida, Third District.
    July 7, 1980.
    Lane Mitchell & Harris, Miami, for appellant in case no. 79-2168.
    Sinclair, Louis, Siegel & Heath, Miami, for appellants in case no. 79-2196.
    Sibley, Giblin, Levenson & Glaser, Miami Beach, for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   ON MOTION FOR DETERMINATION OF STATUS OF APPEALS

DANIEL S. PEARSON, Judge.

The appellant in Case No. 79-2168, Joan Adkins Fickle, has moved for a determination of the status of the above appeals. The proceedings below originated with a petition brought by Milton R. Adkins for the change of custody of children and modification of the alimony provisions of an earlier final judgment of divorce. At the outset, Mrs. Fickle was represented by the law firm of Sinclair, Louis, Siegel & Heath (hereafter SLS & H). After nearly a year and a half of this post-decretal litigation, Mrs. Fickle discharged SLS & H and obtained other counsel. The trial court recognized the substitution of counsel and ordered a charging lien in favor of SLS & H for fees and costs that may be owing to them, reserving jurisdiction to later determine what fees and costs were due.

The proceedings below continued. Ultimately, as part of an Order Disposing of All Pending Matters, the trial court ordered each of the parties to bear his own costs and attorneys’ fees, making no determination of the amount, if any, due to SLS & H.

Mrs. Fickle, represented by her new counsel, filed an appeal. SLS & H separately filed an appeal in their own name and in the name of Mrs. Fickle (Case No. 79-2196).

In the appeal brought by Mrs. Fickle, she raises, inter alia, the issue that Adkins should have been required to pay fees. While the appeal brought by SLS & H makes this same contention, the firm also contends that it was deprived of notice and hearing on its attorney-fee claims. There is sufficient dissimilarity in the issues, as raised, to make them separate and distinct.

Mrs. Fickle, in her motion to determine the status of appeals, says that SLS & H had no authority to file an appeal on her behalf, and since the firm is not a party to the proceedings, it has no standing to appeal on its own behalf. Significantly, she states that she would have no objection to the firm moving to appear as amicus curiae.

It is our view that under these circumstances the appeal taken by SLS & H in their own name should not be dismissed. We are cognizant of the oft-stated proposition that the right to attorneys’ fees is derivative in nature and that attorneys have no standing independent of their client to prosecute an appeal. E. g., Hope v. Lipkin, 156 So.2d 659 (Fla.3d DCA 1963). However, a closer analysis of this proposition convinces us that it is inapplicable to a case in which (a) the attorneys who seek to appeal have been discharged and replaced; (b) as part of the substitution of counsel, the attorneys were given a charging lien to be later enforced; (c) an appeal seeking similar relief has been filed by the client; (d) the appeal of the client sufficiently differs from the attorneys’ separate appeal so as to leave doubt that the issue raised by the attorneys will be fully briefed and argued; and (e) the client objects to the attorneys’ technical standing to appeal, but expresses a willingness that her former attorneys be heard in a capacity different than formal appellant.

In Smith v. Smith, 90 Fla. 824, 107 So. 257 (1925), the court held that a provision of a decree which ordered payment of fees to the wife’s attorneys to be made directly to the attorneys must be set aside. “The authorities are practically unanimous in holding that, while the wife’s attorney is the real party interested in obtaining the allowance of attorneys’ fees, yet he is not a party to the suit, and the order should be that the amount must be paid to the wife, or to the clerk of the court, for the use of the attorney.” 90 Fla. at 830, 107 So. at 259. This statement in Smith is the underpinning for this court’s holding in Hope v. Lipkin, supra, that attorneys cannot prosecute an appeal in their own name. However, in 1945, in apparent recognition that the fiction of ordering payment of attorneys’ fees in a divorce action to other than the real party in interest need no longer be indulged, the legislature provided that “such allowances be paid to the attorneys or other persons for whose ultimate benefit such allowances are made.” Ch. 22676, Laws of Fla. (1945).

Not only does Hope spring from this non-eternal holding in Smith, but Hope, unlike the present case, factually involved an appeal by attorneys whose client did not appeal. While the facts are not set forth in Hope, it does appear that the client-wife was joined with the non-client-husband as an appellee by the fee-seeking attorneys. See also Wolf v. Horton, 322 So.2d 71 (Fla.3d DCA 1975). Here, since the wife is appealing the adverse ruling of the trial court and the actions sought to be taken by her former attorneys are not antagonistic to her, Hope is no barrier to the claim of SLS & H.

It is, however, the distinct and separate interest of the attorneys, not mere consistency, which must be the basis for allowing the attorneys to prosecute their own appeal. That distinct and separate interest exists here even as it existed in Miller v. Scobie, 152 Fla. 328, 11 So.2d 892 (1943). There, Miller employed the law firm of Ruff & Ready to bring a breach of promise action against Scobie. She agreed to pay her attorneys fifty per cent of her recovery. During the course of the litigation, she made a private settlement with Scobie and executed a stipulation to dismiss her action. She discharged Ruff & Ready and then, having second thoughts, she attempted to get out of her secret settlement. Based on the executed stipulation of settlement, her action was dismissed by the trial court.

Ruff & Ready moved the trial court to permit it to keep open the lawsuit in Miller’s name for the purpose of recovering their fee. Upon the trial court’s refusal, Ruff & Ready appealed. At the same time, Miller, now with new counsel, appealed from the dismissal. Holding that Ruff & Ready’s motion to continue the lower court action should have been granted, the court said:

“This Court is committed to the doctrine that when a litigant contracts with an attorney to litigate a cause and pay him a percentage of the recovery for his fee, he is entitled to a lien on the judgment therefor. . . . The Federal Courts have also approved this rule.
“The means by which such liens may be enforced has never been adjudicated in this state but other courts have held that it is their duty to protect attorneys against settlements designed to defraud or otherwise defeat the payment of their fees and it has been held that the same suit may be continued for that purpose. . ” Miller v. Scobie, 152 Fla. at 331, 11 So.2d at 894 (citations omitted).

See also Baldwin v. Baldwin, 154 Fla. 624, 18 So.2d 681 (1944); Hadlock v. Hadlock, 137 So.2d 873 (Fla.2d DCA 1962).

While it might be argued that the unique factual setting of Miller v. Scobie limits its application, the principle that attorneys have a right to protect their distinct and separate interests emerges. That right has since been codified by Section 61.16, Florida Statutes (1979):

“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.” (emphasis supplied).

We need not today decide the reach of Section 61.16 and whether its effect is to permit separate appeals by attorneys who have been denied adequate fees in domestic relations matters. We only decide, as the court decided, sub silentio, in Miller v. Scobie, that under the described circumstances of the present case, the attorneys may prosecute their separate appeal.

The motion to consolidate the appeals is granted.

      . The emphasized language was added in 1971. Prior to the amendment, this court held, in a different context, that the language authorizing the payment of fees directly to attorneys did not authorize an attorney to enforce this award by an appeal in his own name. Simkins v. Simkins, 249 So.2d 444 (Fla.3d DCA 1971).


text:
    Edward DUDAS and Grace Dudas, Appellants, v. DADE COUNTY, Florida, a Political Subdivision of the State of Florida, Appellee.
    No. 80-25.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Nat Gursten, North Miami Beach, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael Murphy, Miami, for appellee.
    Before BARKDULL, HUBBARD and DANIEL PEARSON, JJ.
   PER CURIAM.

The question on this appeal is how long does a debtor have to question an account stated. The debtor argues that it is the time provided in the Statute of Limitations, which period may be extended by payments made on account pursuant to Section 95.-051(l)(f), Florida Statutes (1975). We disagree.

An account stated comes into being when a creditor periodically bills a debt- or for a certain amount, which amount is not objected to within a reasonable time. See: Daytona Bridge Company v. Bond, 47 Fla. 136, 36 So. 445 (1904); United Hardware-Furniture Company v. Blue, 59 Fla. 419, 52 So. 364 (1910); Rauzin v. Kupper, 139 So.2d 432 (Fla.3d DCA 1962). No objection to the account stated herein having been made by the debtor between the time the first statement was rendered in 1971 and February 9,1977, when the instant suit was filed to seek a return of alleged overpayment on the original obligation, we find the objection comes too late. We approve the trial court’s finding, as a matter of law, that no objection was made within a reasonable time. Martyn v. J. E. Arnold & Co., 36 Fla. 446, 18 So. 791 (1895); Daytona Bridge Company v. Bond, supra.

Therefore, the final summary judgment here under review be and the same is hereby affirmed.

Affirmed.


text:
    Manuel JAMES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2052.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Alvin E. Entin, Miami, and Lewis S. Kim-ler, North Miami Beach, for appellant.
    Jim Smith, Atty. Gen. and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before HUBBART and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The appellant, Manuel W. James, is an attorney practicing in the Sixteenth Judicial Circuit who has been held in contempt of court for his failure to appear in court at the call of a criminal case in which he had been retained to represent the defendant. We hold that this appeal from the judgment of contempt must be reversed because the procedure employed did not afford the accused a fair opportunity to present evidence of the reasons for his failure to appear or to present evidence of the existence of any mitigating circumstances.

Florida Rules of Criminal Procedure 3.830 and 3.840 set out with some specificity the procedures to be followed in the punishment of either direct or indirect contempt of court. Possibly because of clerical errors or the failure to make a proper record, there is no showing on this appeal that the accused had a fair opportunity to respond.

The basis for the contempt judgment was the appellant’s failure to appear at a regularly-set trial court hearing where he had a duty to appear. Depending on the circumstances, such an obstruction of the court’s work may be a direct criminal contempt or, if explained, may be shown not to be contemptuous. See, e. g., Aron v. Huttoe, 258 So.2d 273 (Fla. 3d DCA 1972). In the present instance, rather than issuing a writ of body attachment, the court entered a rule directing the appellant to show cause why he should not be held in contempt; the rule was served on appellant. For some reason not appearing in the record, the court struck the order and, thereafter, a second order to show cause was issued. The record does not show that the appellant was served with this order.

The appellant did not appear in court at the time specified in the second order and was thereupon adjudged to be in contempt, thus giving rise to this appeal. Because of insufficient support in the record, we hold that the judgment must be reversed. We do so without expressing any opinion on the merits of the cause. However, we do remind the Bar that every attorney has a direct responsibility to the court to appear when his cases are regularly set and called. See Annotation 97 A.L.R.2d 431 (1964).

Reversed and remanded for further proceedings.


author: BASKIN, Judge.

text:
    Roberto ORTIZ, Appellant, v. BISCAYNE MEDICAL CENTER, INC. and Emergency Physician Associates, P.A., Appellees.
    No. 79-1969.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Greene & Cooper and Robyn Greene, Ro-senblatt, Greene & Arnowitz, Miami, for appellant.
    Preddy, Kutner & Hardy and G. William Bissett, Walton, Lantaff, Schroeder & Carson and Bernard I. Probst, Miami, for ap-pellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

Roberto Ortiz, plaintiff in the medical malpractice action below, appeals an order dismissing the cause for lack of prosecution. We reverse.

On May 29, 1979, the defendants, appel-lees herein, filed a motion to dismiss for lack of prosecution, claiming that no activity had occurred in the case for a period of one year. The record discloses, however, that this court, by order dated June 29, 1978, and filed in the circuit court on August 18, 1978, denied a petition for writ of common law certiorari.

The order of this court which denied the petition for writ of certiorari and was filed in the circuit court is record activity within the meaning of Rule 1.420(e), Florida Rules of Civil Procedure. See Brennan v. Ryter, 339 So.2d 661 (Fla. 1st DCA 1976). Less than a year elapsed between the recording of this court’s order and the motion to dismiss. “Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.” Fla.R.Civ.P. 1.420(e).

The order of dismissal is therefore reversed and the cause remanded for further proceedings.


author: McCORD, Judge.

text:
    UNITED STATES SERVICE INDUSTRIES-FLORIDA, a Florida Corporation, Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.
    Nos. VV-412, VV-276 and VV-159.
    District Court of Appeal of Florida, First District.
    July 8, 1980.
    Rehearing Denied Aug. 8, 1980.
    Anthony J. O’Donnell, Jr. of Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff, Miami, for petitioner.
    George L. Waas, Tallahassee, for respondent.
   McCORD, Judge.

This cause is brought before us as a petition to review nonfinal agency action. The action sought to be reviewed is that of the Department of Health and Rehabilitative Services (HRS) in awarding a contract to a bidder other than petitioner, when petitioner allegedly submitted the lowest bid. The merits of the bidding dispute need not be reached here as we find HRS failed to afford petitioner a timely hearing as required by the Administrative Procedures Act.

Bids were submitted to HRS for a contract of janitorial services by three bidders on April 28,1980. HRS notified the bidders on that same day of its intention to award the bid to Oxford Services, Inc. Petitioner, United States Services Industries-Florida, had submitted a significantly lower bid, but HRS refused to consider it because certain information demonstrating that petitioner was a “responsible” bidder was not included within the bid. Petitioner protested the award as improper and requested an immediate hearing under 120.57(1), Fla.Stat. (1979). HRS referred petitioner’s request to the Department of Administrative Hearings, then proceeded to execute the contract with Oxford without awaiting the outcome of that hearing. Petitioner sought this Court’s aid, requesting an order preventing HRS from contracting with Oxford Services, Inc., or requiring HRS to open the contract for rebidding.

We responded in our opinion filed May 9, 1980, finding that in cases such as this, while petitioner was entitled to a hearing, a § 120.57(1) hearing was not the proper remedy to seek, there being no disputed issue of material fact. Recognizing that competing interests must be balanced, [i.e., while a party substantially affected by agency action is entitled to review of that action, so, too, are the citizens of the state entitled to continuity and prevention of undue delay in government contract work], we indicated that § 120.57(2) appeared more appropriate, as only through such an informal proceeding could rapid review be afforded petitioner without putting in motion the slower wheels of a § 120.57(1) formal hearing. Believing that an informal proceeding under § 120.57(2) could be afforded by HRS to petitioner in a matter of days, we denied the petition, inferring that petitioner should seek relief under § 120.57(2), “which in proper application will afford full relief faster and more conveniently.”

Following our opinion, apparently petitioner continued to seek rapid review from HRS and, when review was not forthcoming and it became clear that Oxford would begin performance on the questioned contract before petitioner was afforded any administrative review, petitioner again sought this Court’s aid.

As we stated in Solar Energy Control, Inc. v. State of Florida Department of Health and Rehabilitative Services, 377 So.2d 746 (Fla. 1st DCA 1979):

This Court has previously referred to and analyzed the “impressive arsenal” of available remedies by means of which a litigant may subject “every agency action to immediate or potential scrutiny,” State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977). In our opinion petitioner has demonstrated its entitlement to such a remedy at this state of the dispute between the parties.

Since HRS has failed to afford petitioner a rapid hearing in this cause prior to taking what otherwise would be considered final agency action, we explicitly direct HRS to immediately afford petitioner an informal hearing under § 120.57(2).

We have previously held that in agency proceedings affecting a party’s substantial interest an adverse determination of a party’s substantial interest is ineffective until an order has properly been entered after proceedings under § 120.57. See Capeletti Bros. v. State of Florida, Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978). While review generally will be sought pursuant to § 120.57(1), the value of a § 120.57(2) proceeding is evidenced in a case such as the instant one.

In bidding procedures, we find there can be no final agency action until the agency has afforded a requesting petitioner a § 120.57(2) hearing. HRS proceeds at its peril if it awards a contract prior to final agency action. Absent a violation of the terms of a clear point of entry for § 120.-57(2) proceedings (as established by rules, regulations, or particular terms of a contract or offer to bid), should HRS continue with a contract despite application for administrative review by a disappointed bidder, such action by HRS would be considered “free-form” action until a hearing was held. We addressed this problem in Capeletti Bros., Inc., supra:

The vast majority of an agency’s free-form decisions become conclusive because they are not challenged in sections 120.-57(1) or (2) proceedings. Yet the agency’s rules must clearly signal when the agency’s free-form decisional process is completed or at a point when it is appropriate for an affected party to request formal proceedings, if authorized, or to accept his statutory opportunity for informally structured proceedings under § 120.57(2). In other words, an agency must grant affected parties a clear point of entry, within a specified time after some recognizable event in investigatory or other free-form proceedings, to formal or informal proceedings under § 120.57. Uncertainty in an agency’s rules and practices on this point usually results, as is shown by our experience in the past several months, in a petition for review followed by an agency motion to dismiss on the alternative grounds that the agency has not yet taken final action or that, if it has done so, the request for § 120.57 proceedings and the review petition are too late. We have usually resolved such confusion in favor of the affected party. (Emphasis added.)

See also Graham Contracting, Inc. v. Dept. of General Services, 363 So.2d 810, 814-815 (Fla. 1st DCA 1978).

In situations involving bidding for contracts where § 120.57(1) hearing would encompass procedures likely to forestall prompt execution of government contracts, where there are no “genuine” issues as to any material fact and any spurious factual issues can be readily identified and eliminated by the parties, it is apparent that speedy resolution under § 120.57(2) is most appropriate so that disputes can be resolved or crystalized for rapid appeal prior to execution of the contract involved.

While HRS is credited with promulgating a rule to the effect that notice and the opportunity to be heard will be provided to substantially affected parties, HRS admits no explicit notice pursuant to this rule was afforded petitioner. Because petitioner nevertheless perceived that its substantial interests were being determined, and applied for a hearing, no prejudice to petitioner seems to have resulted from any doubt about a clear point of entry to APA remedies.

The Division of Administrative Hearings is ordered to proceed no further in this case and to remand the pending matter to HRS, which will forthwith afford petitioner an informal hearing concerning the issues raised by. petitioner and enter a final order.

Case Nos. VV-412, VV-276 and VV-159 are consolidated and remanded for appropriate proceedings consistent with this opinion.

ROBERT P. SMITH and SHIVERS, JJ., concur.

      . United States Service Industries-Florida v. State of Florida Department of Rehabilitative Services, 383 So.2d 728 (Fla. 1 DCA 1980).

      . “Rule 10-2.36, Decisions Affecting Substantial Interests.
      (1) A decision affecting substantial interests shall be communicated in writing to the person or persons directly affected thereby, setting out the basis for the decision and shall advise as to the opportunity for formal or informal hearing pursuant to § 120.57, F.S. If a request for hearing is made, the request or petition shall be in compliance with Rule § 28-5.15, F.A.C., and shall be filed with and received by the Department within thirty (30) days of receipt of the decision. Failure to timely request a hearing shall be deemed a waiver of any right to a § 120.57, F.A.C. hearing and said decision shall become final agency action. * * * ” Rule 10-2.36, Florida Administrative Code.


author: DOWNEY, Judge.

text:
    Walteen LEE, Appellant, v. STATE of Florida, Appellee.
    No. 78-2170.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.
    As Amended On Rehearing Denied Aug. 7, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

At issue in this case is the adequacy of the information charging appellant with burglary.

The State filed an information against appellant which alleged:

DAVID H. BLUDWORTH State’s Attorney of the Fifteenth Judicial Circuit of Florida, as Prosecuting Attorney for the State of Florida in the County of Palm Beach, under oath • information makes that WALTEEN LEE in the County of Palm Beach and State of Florida, on the 22nd day of APRIL in the year of our Lord, one thousand nine hundred and SEVENTY-EIGHT in the County and State aforesaid, unlawfully did then and there enter or remain in a structure, to-wit: a dwelling, the property of GERTRUDE WATERS, with intent to commit an offense therein, contrary to Florida Statutes 810.02(1)(3) and 810.07 .

On the day prior to trial appellant moved to dismiss the information on the grounds that the information did not set forth an essential element of burglary, namely, the nature of the offense appellant intended to commit when he entered or remained in the structure in question. On the day of trial the court denied appellant’s motion, the case proceeded to trial, and a jury found appellant guilty as charged in the information. The sole question raised on appeal is the propriety of the order denying appellant’s motion to dismiss the information.

The gravamen of the offense of burglary is the nonconsensual entry of a structure or conveyance with the intent to commit an offense therein. Section 810.-01(1), Florida Statutes (1977); Dowis v. State, 326 So.2d 197 (Fla.4th DCA 1976). Furthermore, the intent required by statute is an essential element to be charged in the information. Dowis v. State, supra. Unquestionably this is the general rule in most jurisdictions. 13 Am.Jur.2d, Burglary § 36. We hold that an information purporting to charge the crime of burglary without alleging the entry was made with intent to commit a specific offense is subject to a motion to dismiss. This is so because burglary is the entering (or remaining inside) a structure without permission and with intent to commit a specific crime. The charging document must allege the intent with which the defendant entered in order to properly charge the crime of burglary.

The State contends that the information in question meets the foregoing requirements because of the reference therein to several statutory sections, 810.02(1), (3) and 810.07. In its brief the State says, “Reading the charge in conjunction with the statute, it is clear that appellant was accused of entering Mrs. Waters’ dwelling with intent to commit a burglary.” However, that argument is clearly untenable. One of the essential elements of the charge of burglary is the defendant’s intent to commit a specific offense after an unlawful entry. For an information to charge that a defendant unlawfully entered a structure with intent to commit burglary is tantamount to the information’s charging that the defendant committed a burglary with intent to commit burglary.

Subsection 810.02(3) of the burglary statute specifies the penalties for burglary under certain conditions. Section 810.07 has to do with proof of intent:

“In a trial of the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.”

Thus, it is apparent that neither of the statutory sections referred to in the information in this case remotely fills the pleading void created by the failure to allege the offense intended to be committed upon entry.

Since the allegations of the information are insufficient to charge the crime of burglary, we have scrutinized the record to determine whether the appellant was apprised of the specific intent which the State intended to prove so that no prejudice would attach to the deficient information. However, we are unable to conclude that appellant was not prejudiced by this oversight.

Accordingly, the judgment and sentence is reversed and the cause is remanded with directions to dismiss the information with leave to amend if the State be so advised.

REVERSED AND REMANDED with directions.

BERANEK and HERSEY, JJ., concur.


author: HURLEY, Judge.

text:
    SUBURBIA FEDERAL SAVINGS AND LOAN ASSOCIATION and Irving Krassner, Appellants, v. BEL-AIR CONDITIONING CO., INC., a Florida Corporation, Appellee.
    Nos. 79-186, 79-561.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.

      Myron H. Burnstein of Saler, Yeslow & Burnstein, Hollywood, for appellants.
    Theodore L. Tripp, Jr. of Tobias Simon, P. A., Miami, for appellee.
   HURLEY, Judge.

This case poses the question whether Article 9 of the Uniform Commercial Code, Chapter 679, Florida Statutes (1979) supersedes Section 726.09, Florida Statutes (1979), as they apply to a retain title contract. We answer in the affirmative and therefore reverse the proceedings below.

The facts are without dispute. Prior to March, 1976, Suburbia Federal Savings and Loan Association (“Suburbia”) placed a construction mortgage on certain real property owned by Foxcroft Country Club (“Fox-croft”). On May 4,1976, Suburbia recorded the mortgage and filed UCC financing statements with the clerk of the circuit court and with the secretary of state.

On March 2, 1976, Bel-Air Conditioning Co., Inc. (“Bel-Air”) and Foxcroft entered into a contract for the sale of air conditioning equipment. Included in the contract was this provision:

It is expressly understood and agreed that title to the above described property is retained by Bel-Air Conditioning Co., Inc., and same shall not pass or become vested in the purchaser until the entire purchase price has been paid. Said property shall be and remain personal property and retain its character as such, and purchaser shall not attach or affix said property to any realty so that it loses its character as personal property.

Bel-Air neither recorded the contract nor filed a UCC financing statement.

Without dwelling on the details, suffice it to say that Foxcroft defaulted and Bel-Air filed to replevy the equipment. Foxcroft also defaulted on its obligations to Suburbia, which led to a foreclosure action and the appointment of a receiver, Irving Krassner (“Krassner”).

Krassner and Suburbia intervened in Bel-Air’s replevin action and claimed that the retained title contract was a security interest as defined by the Uniform Commercial Code. They argued that Suburbia’s filing of a financing statement coupled with Bel-Air’s failure to do so, gave Suburbia priority over Bel-Air and entitled Krassner to possession of the equipment. Bel-Air responded that the contract meant exactly what it said: irrespective of the equipment’s location, it was theirs. Bel-Air argued that it was protected under Section 726.09, Florida Statutes (1979), which made it immune from the UCC and its scheme for perfecting security interests. The trial court found for Bel-Air and ultimately entered a final judgment in the sum of $13,-875.00. This appeal followed.

First, we note that there has never been a question as to the existence or validity of Suburbia’s security interest in Foxcroft’s goods. The entire controversy in the trial court centered on whether Article 9 of the Uniform Commercial Code, Chapter 679, Florida Statutes (1979), applied to the Bel-Air/Foxcroft contract. We therefore begin by considering the rules which govern the construction of the Code and the general policy of Chapter 679. The Legislature in Section 671.102, Florida Statutes (1979), stated:

This code shall be liberally construed and applied to promote its underlying purposes and policies.

Section 679.102(2), Florida Statutes (1979), sets forth the policy and scope of the chapter. It states:

This chapter applies to security interests created by contract including pledge, assignment, chattel mortgage, chattel trust, trust deed, factor’s lien, equipment trust, conditional sale, trust receipt, other lien or title retention contract and lease or consignment intended as security. This chapter does not apply to statutory liens except as provided in s. 679.310. (Emphasis supplied.)

Section 671.201(37), Florida Statutes (1979), in turn, defines a “security interest” as:

. an interest in personal property or fixtures which secures payment or performance of an obligation. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (s. 672.401) is limited in effect to a reservation of a security interest.

Since passage of title to the air conditioning equipment was expressly conditioned on Foxcroft’s payment of the entire purchase price, we conclude that the contract was a “security interest” within the meaning of the Code. Moreover, because the contract contained an adequate description of the collateral we conclude it met the requirements for enforceability under Section 679.-203(1), Florida Statutes (1979). See, American Restaurant Supply Co. v. Wilson, 371 So.2d 489 (Fla. 1st DCA 1979).

It remains only to determine the priority of the security interests. The stipulated facts show that Suburbia filed a financing statement pursuant to Section 679.302(1), Florida Statutes (1979); Bel-Air did not. Thus, Suburbia’s security interest is perfected while Bel-Air’s remains unper-fected. It is black letter law that an unper-fected security interest is subordinate to a perfected security interest. Clearly, then, absent the intervention of some other statute, Suburbia is entitled to priority.

We next turn to appellee’s contention that its rights are protected by Section 726.-09, Florida Statutes (1979). That statute provides:

When any loan of goods and chattels shall be pretended to have been made to any person with whom or those claiming under him, possession shall have remained for the space of two years without demand and pursued by due process of law on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of a use or property by way of condition, reversion, remainder or otherwise in goods and chattels, and the possession thereof shall have remained in another as aforesaid, the same shall be taken, as to the creditors and purchasers of the persons aforesaid so remaining in possession, to be fraudulent within this chapter, and the absolute property shall be with the possession, unless such loan, reservation or limitation of use or property were declared by will or deed in writing proved and recorded.

(Emphasis supplied.)

Appellee also cites Rood v. Miami Air Conditioning Co., 193 So.2d 216, 221 (Fla. 3rd DCA 1966), which is factually similar to the case at bar, and wherein the court applied Section 726.09, and held:

[I]t is not necessary for a vendor of personal property who reserves title to prove or record the instrument by which title is reserved in order to protect such vendor’s interest as against third persons obtaining a lien or interest via the vendee within two years after the date that the vendee is placed in possession; and that whether or not such third party so gaining an interest or lien within such period of time had notice, actual or constructive, of the reserved title in the vendor is immaterial.

Though these authorities are on point, ap-pellee’s reliance thereon is misplaced. First, Rood and its progeny were decided prior to Florida’s adoption of the Uniform Commercial Code on January 1, 1967. Of greater importance, however, is the Legislature’s pronouncement that the Code is to be the exclusive authority in matters of this kind. Section 680.103, Florida Statutes (1979), states:

[A]ll laws and parts of laws inconsistent with this code are repealed.

See also, Section 680.104, Florida Statutes (1979).

With the adoption of the Code, the location of title is no longer significant. Therefore, it was error to permit this factor to induce reliance upon Section 726.09. We hasten to add, however, that we can envision factual situations where Section 726.09 could apply without conflicting with the Code. Thus we limit our holding to the determination that as they apply to retain title contracts which meet the requirements of a security interest, Chapter 679, Florida Statutes (1979), supersedes Section 726.09, Florida Statutes (1979).

Accordingly, the judgment is reversed and the cause is remanded with instructions to enter a verdict for appellants.

REVERSED and REMANDED.

BERANEK and HERSEY, JJ., concur.

      . Section 679.301 et seq., Florida Statutes (1979).

      . American Indus. Leasing Co. v. Searles, 510 F.2d 996 (5th Cir. 1975), provides a general history of the statute with examples of its application.

      . White v. County Mortgagee Corp., 211 So.2d 254 (Fla. 3rd DCA 1968). We are informed by appellants that . examination of the Eleventh Circuit docket reveals that the case [White] was originally filed in November, 1966, prior to the effective date of the Code

      . Chapter 65-254, Florida Laws (1965).

      . Cf. National Bank of Sarasota v. Dugger, 335 So.2d 859 (Fla. 2d DCA), cert. denied, 342 So.2d 1101 (Fla. 1976).


text:
    In re ESTATE of Daniel DeGEORGE, Deceased.
    No. 79-2239.
    District Court of Appeal of Florida, Second District.
    July 9, 1980.
    Leslie M. Conklin of Graham, Hodge & Larson, Largo, for appellant.
    No appearance for appellees.
   PER CURIAM.

Affirmed. In re Estate of Fornash, 372 So.2d 128 (Fla. 2d DCA 1979).

SCHEB, C. J., and HOBSON and GRIMES, JJ., concur.


author: BOARDMAN, Judge.

text:
    FLORIDA POWER CORPORATION, a Florida Corporation, Appellant, v. GULF RIDGE COUNCIL, Boy Scouts of America, Inc., a nonprofit Florida Corporation, Appellee.
    No. 80-38.
    District Court of Appeal of Florida, Second District.
    July 9, 1980.
    H. Rex Owen of Owen & McCrory, St. Petersburg, for appellant.
    John W. Frost, II and Peter P. Murna-ghan of Holland & Knight, Bartow, for appellee.
   BOARDMAN, Judge.

Florida Power Corporation appeals the dismissal of its petition for condemnation of certain land owned by appellee Gulf Ridge Council, Boy Scouts of America, Inc. We affirm.

Appellant filed its petition to condemn a route for a high voltage power transmission line in Polk County. The intended route bisected Flaming Arrow Camp, a recreational and wildlife refuge maintained on its property by appellee. At a quick taking hearing, appellee opposed the “straight-line” route selected by appellant and claimed that appellant had abused its conceded condemnation powers by selecting it. Appellee proposed two alternative routes over other portions of their property and offered to donate the portions of land necessary to either alternative route. Appellant refused. The trial court found that appellant had exceeded its statutory authority to acquire real property by eminent domain under Section 361.01, Florida Statutes (1977) and Section 74.011, Florida Statutes (1978 Supp.). It therefore ruled that appellant’s petition for condemnation would be dismissed unless appellant elected, within fourteen days of the entry of the order, to utilize one of the reasonably available alternate routes across appellee’s land. This appeal followed timely.

The trial court noted in its well-reasoned opinion that strict compliance with the law is required when public utilities exercise their statutory right of eminent domain. Valleybrook Developers, Inc., v. Gulf Power Co., 272 So.2d 167 (Fla. 1st DCA 1973). The trial court continued:

Once a condemning authority has decided that a taking is necessary, selects one of the alternatives available to it, and applies to a court for approval of the taking, the court’s role is then to assure that the condemnor acted in good faith, did not exceed its authority, and did not abuse its discretion. Hillsborough County v. Sapp, 280 So.2d 443 (Fla.1973). Florida law requires a condemning authority to weigh and consider several factors in deciding which route to select and which land to condemn. Specifically, Florida appellate courts have enumerated five criteria that a condemnor must weigh in order to properly exercise its discretion; [sic] (1) Availability of an alternate route; (2) costs; (3) environmental factors; (4) long-range area planning; and (5) safety considerations. The failure or refusal of a condemning authority to properly weigh these factors may constitute an abuse of discretion.
Admittedly, a condemning authority does not necessarily abuse its discretion by choosing one route over another equally suitable route. However, a condemnor does abuse its discretion by making a route selection determination without first properly considering and weighing the relevent [sic] factors considered determinative by Florida appellate courts.
It appears from the testimony heard in this cause that Florida Power planning engineers considered only the most direct and economical route, overlooking the other factors mentioned above. In fact, Florida Power’s engineers testified that they did not know what factors, if any, company officials had considered in approving the utility’s decision to condemn this particular land.
The Court further finds that the protection of natural resources is the constitutionally declared public policy of the State of Florida, and as such, is an appropriate matter for consideration in condemnation cases. Seadade Industries, Inc. v. Florida Power and Light Company, 245 So.2d 209 (Fla.1970); Fla. Const, art. II, § 7. Florida Power overlooked the environmental and esthetic damage that would necessarily accompany the construction of a power line through Respondent’s land. Although Florida Power’s experts admitted that placement of the transmission line along the proposed route would disturb the wilderness environment, they specifically stated that no environmental factors were considered. The reservation, which is maintained and preserved by the Respondent for the recreational and conservational benefit of the public, as well as the individual members of Respondent’s organization, possesses unique and invaluable environmental and esthetic qualities that will be significantly impaired if Florida Power’s choice of routing were allowed.
The use of Respondent’s land by young children and teenagers amplifies the safety hazards associated with the construction of power lines along the proposed route. Regardless of whether the proposed power line is claimed by Florida Power to be “safe”, it can hardly be denied that the threat to persons on the reserve would be significantly less if the power line was built along the alternate route suggested by Respondent, since that route would not lie over areas of present or planned use. Respondent’s engineering expert testified that public safety is always considered in determining route selection by utility companies, and concluded by pointing out that if all factors were examined relating to route selection in the present case, the alternate route suggested by Respondent would be the more desirable route.
Based on the totality of facts and circumstances of this case and the applicable law, the Court finds that Florida Power Company exceeded its authority and abused its discretion in failing to properly consider and weigh the factors of alternate route availability and cost.

We agree with the trial court’s reasoning. As stated in Knappen v. Division of Administration, State Department of Transportation, 352 So.2d 885 at 891 (Fla. 2d DCA 1977), cert. denied, 364 So.2d 883 (Fla.1978): “The reason that Florida courts have consistently held that a judicial inquiry is permissible into the necessity of taking stems from their awareness of the ‘ “tunnel vision” that so often plagues a bureaucracy which deems itself immune from judicial review.’ Chipola [Nurseries, Inc. v. Division of Administration, Department of Transportation, 294 So.2d 357] at 360 [(Fla. 1st DCA 1974)] (concurring opinion.)” We agree with the trial court that appellant abused its discretion in considering only the most direct and economical route and in failing to weigh other important factors, such as safety and the impact of the proposed project on the environment. See Hillsborough County v. Sapp, 280 So.2d 443 (Fla.1973). While failure of a condemn- or to consider one factor would seldom warrant denial or dismissal of a condemnation petition, clearly a condemnor’s failure to consider anything other than its own convenience constitutes an abuse of discretion. However, this opinion is not to be construed as giving every condemnee which deems itself aggrieved the absolute right to avoid condemnation or to force the condemnor into an alternate route other than the most direct and economical route to maintain the integrity of its entire right of way. The fact that appellee’s property was for the terminus portion of appellant’s transmission line is considered a significant factor by this court.

Consequently, we approve the trial court’s order with the understanding that the dismissal of appellant’s petition is without prejudice to the filing of a new petition should appellant decide to undertake the further study and consideration we have held are required and, after having completed such further investigation, decide that its originally proposed route or an alternate route other than one of those proposed by appellee is appropriate.

AFFIRMED.

HOBSON, Acting C. J., and CAMPBELL, J., concur.